Sant Narain Mathur & Ors Vs. Rama
Krishna Mission & Ors  INSC 189 (27 September 1974)
KHANNA, HANS RAJ KHANNA, HANS RAJ BEG, M.
HAMEEDULLAH KRISHNAIYER, V.R.
CITATION: 1974 AIR 2241 1975 SCR (2) 188
CITATOR INFO :
R 1976 SC 866 (9)
Practice and Procedure-Statement in the High
Court judgment that certain issues were conceded whether can be challenged
before the Supreme Court particularly when. it was not challenged in the Leave
Application and the Special Leave Petition--Permission to raise a new plea to
be determined on what grouting.
Dr. Chandan Singh had two sons Tegh Singh and
Shamsher Singh and two daughters Deva Devi and Lakshmi Devi Dayali Devi was the
wife of Shamsher Singh. Dr. Chandan Singh executed a will in 1897. Chandan Singh
and Tegh Singh died.
Thereafter Shamsher Singh executed a will in
1944 in favour of Rama Krishna Mission and making provision for the residence
and maintenance of his wife and sister. Mr. Mitra the executor obtained a
probate of the will in spite of the opposition of Dayali Devi. The Division
Bench of the High Court confirmed the grant of probate by the Single Judge.
Therefore, Dayali Devi filed a suit for a
declaration that she was the owner of the Properties left by her husband.
The said suit was dismissed. The High Court
dismissed the appeal. In the meanwhile, a suit for possession of the property
bequeathed to Rama Krishna Mission was filed where Deva Devi was impleaded as a
defendant on her application.
The Trial Court awarded the decree for
possession in favour of Rama Krishna Mission. Dayali Devi filed an appeal
against that judgment in the High Court. During the pendency of the appeal in
the High Court Deva Devi and Dayali Devi died. Four persons including the
appellants applied to the High Court to be substituted as legal representatives
of Dayali Devi on the ground that DayaliDevi had executed a will in their
favour 2 days before her death. The High Court dismissed the appeal. The High
Court judgment mentioned that it was not challenged by the appellants that a
part of the bequeathed property was selfacquired property of Shamsher Singh and
that Shamsher Singh had become full owner of the share of Tegh Singh. It was
contended on behalf of the appellant that the observations in the High Court
judgment about the concession are erroneous.
HELD : The observation of the High Court that
certain findings were not challenged is unequivocal and it is difficult to
believe that the Learned Judges of the High Court would erroneously say so. The
same counsel who argued the appeal also filed the Application for Leave which
is silent on the point. Even in the Special Leave Petition filed in this Court
no ground was taken that the observation of the High Court was incorrect. [193
E-H] The contention that Shamsher Singh was owner of only I share of the estate
of Chandan Singh after the death of Tegh Singh was not allowed to be raised for
the first time in this Court. While disallowing the appellant to raise the
contention this Court took into account various facts including the fact that
the plea is being set up by persons who admittedly had no relationship with
Chandan Singh, Shamsher Singh or Dayali Devi. Another fact which weighed with
this Court is that the suit giving rise to this appeal was instituted more than
16 years ago. The suit instituted in 1958 was the off-shoot of the litigation
which started in 1946 and it is time that a final curtain is drawn on the long
litigation. The Court in this context observed :
"Deva Devi and Dayali Devi, who claimed
rights and interest in the property is dispute, are now no more. So is Capt.
Mitra who was the party arrayed against the
two ladies in the litigation. It is time in our opinion, that we draw the final
curtain on this long drawn litigation and not allow its embers to shoulder for
a further length of time, more so when the principal contestants have all
departed bowing as it were to the inexorable law of nature." [195 D-H] 189
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 689 of 1973.
Appeal by special leave from the judgment and
Order dated the October 19, 1972 of the Allahabad, High Court in First Appeal
No. 360 of 1963.
Sri Narain Andley, O. C. Mathur and D. N.
Misra, for the appellant.
B. Sen, P. K. Chaterjee and G. S. Chatterjee,
for the respondent The Judgment of the Court was delivered by KHANNA, J.-This
is an appeal by special leave against the judgment of the Allahabad High Court
affirming on appeal the decision of the trial court whereby a decree for
possession of the property in dispute had been awarded in favour of Capt. J. N.
Mitra deceased plaintiff, now represented by Rama Krishna Mission and other
respondents, against Smt.
Dayali Devi and Smt. Deva Devi decease&,
defendants, now represented by Sant Narain Mathur and other appellants.
Although the question involved in appeal lies
within a narrow compass, the case has a long history going back to the end of
the last century, and it would, therefore, be necessary to set out the detailed
facts. "Dr. Chandan Singh who hailed from Pilibhit settled in Dehra Dun
towards the end of the last century. Dr. Chandan Singh had two sons Tegh Singh
and Shamsher Singh and two daughters Deva Devi and Lachmi Devi. Dayali Devi was
the wife of Shamsher Singh. On March 26, 1897 Dr. Chandan Singh executed a
After making provision for the maintenance of
his two wives and the marriage expenses of daughterDeva Devi, Dr.Chandan Singh
bequeathed his estate in equal shares to his sons Tegh Singh and ShamSher Singh
for their life time. The relevant part of clause 6-B of the will read as under
"By way of policy I deem it necessary to
make it clear that by this writing I want to give a moiety share, at the most,
to each of my both the sons, in the income of the estate left by me for their
life-time; and after each of them, his son or legal heir shall have absolute
proprietary right to the extent of one,half subject to the age aforementioned.
In case one of the brothers dies issue less
and the other brother may be alive at that time, (i.e., after the death of the
former), then the deceased brother's wife shall be entitled to receive
maintenance allowance only and the property shall vest in the surviving
brother. Should both of them die issue less, their legal heirs shall become
entitled to all as mentioned above, at the most, to the extent of one-half
share." Chandan Singh died on April 1, 1897. Tegh Singh, elder son of
Chandan Singh, died issue less in 1908. On July 14, 1944 Shamsher Singh,
younger son of Chandan Singh, executed a will. Shamsher Singh before that had
been married to Dayali Devi but he had no issue from her. The will related to
the entire estate of Shamsher Singh, including the property in dispute, and was
executed by Shamsher Singh on the 190 assumption that he was the full owner of
that property. By this will Shamsher Singh appointed Capt. J. N. Mitra as the
executor of his estate. Shamsher Singh gave a right of residence and
maintenance to his wife Dayali Devi. He also made provision for the residence
and maintenance of his sister Deva Devi. The entire estate was bequeathed to
Rama Krishna Mission and the bequest was to take effect after the death of
Dayali Devi. Shamsher Singh died issueless on January 20, 1946 leavingbehind
his widow Dayali Devi and sister Deva Devi.
On December 10, 1946 Capt. J. N. Mitra applied
for grant of probate of the will of Shamsher Singh in the Allahabad High Court.
Dayali Devi contested the aforesaid petition and also set up arrival will. The
High Court did not accept the plea of Dayali Devi regarding the rival will.
Probate was granted to Capt. Mitra on March 18, 1949. Dayali Devi filed Letters
Patent appeal against the order of the single Judge granting probate to Capt.
Mitra but her appeal was dismissed on March 14, 1952.
On July 15, 1952 Dayali Devi filed civil suit
No. 54 of 1952 against Capt. Mitra, Rama Krishna Mission and Deva Devi in the
court of the Civil Judge Dehra Dun for a declaration that she was the owner of
all movable and immovable properties of her husband Shamsher Singh. According
to the claim of Dayali Devi, as the legal heir of Shamsher Singh she became
entitled to the aforesaid properties under the will of Chandan Singh. Dayali
Devi's suit was dismissed by the trial court on November 7, 1958. It was held
that Dayali Devi did not acquire any interest under the will of Chandan Singh.
The trial court came to this conclusion on the basis of the Privy Council
decision in Tagore v.
Tagore(1) that a bequest in favour of unborn
persons was void. It was observed that Chandan Singh did not intend to give any
property to any legal heir of his sons except to their sons. The court held
that part of the property bequeathed by Shamsher Singh was his self-acquired
property' It was also held that Shamsher Singh was entitled to one half share
for his life in the property bequeathed to him by Chandan Singh. Regarding the
other half share which was bequeathed for his life to Tegh Singh, the court
held that after Tegh Singh's death Shamsher Singh became absolute owner of
that. As Dayali Devi was held not entitled to the property in question under
the will of Chandan Singh, her suit was dismissed.
Dayali Devi filed appeal No. 605 of 1958
against the judgment and decree of the trial court dismissing her suit.
The Allahabad High Court dismissed the appeal
as per judgment dated November 21, 1961. It was held by the High Court that
Chandan Singh never intended to give by his will to his sons widows anything
more than a right of maintenance. Dayali Devi as such was held to have no right
in Chandan Singh's property under his will. Shamsher Singh, it was further
held, was the heir of Tegh Singh who had died issue-less. There was, in the
opinion of the High Court, no difficulty in the way of Shamsher Singh executing
a will with respect to half of the estate of Chandan Singh which had been
earmarked for the maintenance of Tegh Singh. As regards the other half share
intended for Shamsher Singh, although the High Court observed that, his sister
Deva Devi seemed to be his legal heir, it did (1) I.A. Supp Vol. 1872-73 p. 43.
191 not go into this aspect of the matter as
Deva Devi had made no claim. Another finding of the High Court was that Dayali
Devi was born in 1904 and as such was not in existence at the time of the death
of Chandan Singh in 1897. Following the case of Tagore v. Tagore (supra), the High
Court held that Dayali Devi being not in existence, at the time of Chandan
Singh's death could not acquire any interest in his estate under his will.
Dayali Devi was consequently held not entitled to challenge Shamsher Singh's
In the meantime during the pendency of Dayali
Devi's suit No. 54 of 1952 in the trial court, Capt. Mitra filed on February
1,1958 suit No. 31 of 1958 giving rise to the present appeal against Dayali
Devi. This was a suit for possession of the property, details of which are as,
(1) Kothi No. 7 Kutcheri Road, Dehra Dun
known as Tegh Villa.
(2) One _shop being part of No. 4, New Road,
Dehra Dun in which a Chemist and Druggist's business styled Dr. Chandan Singh
& Sons used to be run.
(3) Haveli being part of No. 4, New Road,
Dehra Dun in the occupation of Shri B. K. Mukherji Vakil tenant.
(4) Haveli being part of No. 4, New Road,
(5) Kothi known as Vishranti situated at
Kishanpura, Rajpur Road, Dehra Dun.
Capt. Mitra claimed possession of the above
mentioned properties as the, executor appointed under the will of Shamsher
Deva Devi was impleaded as a defendant in the
above mentioned suit on her application as she claimed the property in dispute
in her own, right.
The trial court awarded a decree for possession
of the property in. dispute in favour of the plaintiff against the defendants
on March 27, 1963. It was held that Shamsher Singh had executed will dated July
14, 1944 while being of sound disposing mind. Vishranti kothi was held to be
self-acquired property of Shamsher Singh. As regards Kothi No. 7, Kutcheri
Road, the court held that the superstructure thereof was the self-acquired
property of Shamsher Singh while the sight of that Kothi was his ancestral
The shopand the two Havelis on New Road were
held to be ancestral properties of Shamsher Singh. Dayali Devi, it was held,
had no interest in the estate of Chandan Singh as she was not born when Chandan
Singh had died. As regards Deva Devi, the trial court observed that Chandan
Singh did not intend to create any interest in favour of his daughters.
Shamsher Singh was held to 'have acquired
full ownership rights in the assets left by Chandan Singh. In the result a
decree for possession of the property in dispute was awarded in favour of Capt.
Mitra against Dayali Devi and Deva Devi.
Dayali Devi filed appeal No. 360 of 1963
against the decree for possession of the property in dispute. Deva Devi filed
application to192 appeal against that decree in forma pauperis. Dayali Devi's
application in this respect was rejected by the High Court on September 18,
1963. Dayali Devi thereupon filed crossobjections, but her cross-objections too
were dismissed by the High Court on April 24, 1964 on the ground that they were
barred by limitation as well as on the ground that they were not maintainable.
Deva Devi thereafter filed application for review of the judgment of the trial
court, but this application was dismissed by the trial court on August 18,
1965. Deva Devi died on November 29, 1966. The High Court as per order dated
December 20, 1967 directed that Deva Devi's name be struck off. As Dayali Devi
made a claim that Deva Devi had executed a will in her favour, the High Court
observed that the question whether Dayali Devi was legate of Deva Devi would be
determined, if necessary, at the time of the hearing or the appeal. Dayali Devi
too died during the pendency of her appeal in the High Court on November 10,
1968. Four persons, including the three appellants, and Durga Prasad respondent
No. 4 applied to the High Court to be substituted in appeal as legal representatives
of Dayali Devi on the ground that Dayali Devi had two days before her death
executed a will in their favour.
The High Court as per order dated August 4,
1972 allowed the said application for substitution on the ground that even an
intermedellers the applicants would be legal representatives of Dayali Devi.
On October 19, 1972 the High Court dismissed
appeal No. 360 of 1963 which had been filed by Dayali Devi. It was observed
that the finding of the trial court that Kothi Vishranti and superstructure of
Kothi No. 7, Kutcheri Road were self-acquired properties of Shamsher Singh had
not been challenged in appeal. It was further observed that the finding of the
trial court that Shamsher Singh had become full owner of one half share of Tegh
Singh in the estate of Chandan Singh too had not been challenged. So far as the
rights of Deva Devi were concerned, the High Court observed that the decree
which had been awarded in favour of Capt.
Mitra against her was binding on Deva Devi as
her application to appeal in forma pauperis as well as her cross-objections had
been dismissed. Deva Devi's successors could not therefore, challenge the
decree awarded against her. Dealing with the case of Dayali Devi, the High
Court held that she was bound by the findings given against her in the earlier
appeal No. 605 of 1958. The aforesaid judgment, it was observed, operated as
res judicata against Dayali Devi. The counsel for the appellant also referred
before the High Court to Order 41, Rule 33 of the Code of Civil Procedure and
contended that the trial court had wrongly held that Deva Devi had nointerest
in Chandan Singh's estate on the death of Shamsher Singh. The High Court was
asked to set aside that error by recourse to the above provision of the Code of
Civil Procedure. The High Court rejected this contention because it was of the
view that the power under Order 41, Rule 33 of the Code could be exercised only
if as a result of interference in favour of the appellant, it became necessary
to readjust the rights of other parties. If in a case the appellant failed to
substantiate the grounds upon which he sought relief from the appellate court
and his appeal failed on merits. the appellant could not ask the court to consider
and decide points which could have risen 193 only if another party had filed an
appeal. An observation was also made by the High Court that Dayali Devi was
approbating and repro bating as she herself had set up a will by Shamsher Singh
on the basis that there was the fully owner of the property in dispute.
After the dismissal of the appeal, the
appellants applied to the High Court under article 133 of the Constitution for
certifying the case to be fit for appeal to this Court.
This application was dismissed by the High
Court as per order dated February 21, 1973. The appellants thereupon filed the
present appeal by special leave.
Mr. Andley on behalf of the appellants has at
the outset referred to the following observations in the judgment of the High
Court "Here it may, however, be mentioned and noted that the finding of
the trial court on the above issues was not challenged before us by the learned
counsel for the appellants. The finding is as follows :
I, therefore, hold that the, land on which
Kothi No. 7 Kutchery Road, Dehra Dun stands and properties detailed at Nos. 2
to 4 in the Schedule appended to the plaint i.e., shop and two Havelies
belonged to Dr. Chandan Singh deceased and were the ancestral properties in the
hands of Shamsher Singh deceased and Kothi known as Vishranti detailed at No. 5
in the Schedule and the constructions now known as 7, Kutchery Road, are
self-acquired properties of Shamsher Singh deceased." It is submitted by
the learned counsel that the High Court was in error in observing that the
finding reproduced above had not been challenged in the High Court, We are
unable to accede to this submission. The observation of the High Court that the
above finding had not been challenged by the learned counsel for the appellants
is unequivocal, and we find it difficult to believe that the learned Judges of
the High Court would state it in their judgment that the finding reproduced
above had not been challenged before them even though the counsel for the
appellants had actually challenged the same. It is not disputed by Mr. Andley
that the same counsel who argued the appeal also filed application before the
High Court for obtaining certificate of fitness for appeal to the Supreme
Court. It was not mentioned in that application that the observation in the
judgment of the High Court that the finding reproduced above had not been
challenged was incorrect. Had the aforesaid finding in fact been challenged and
the observation made by the High Court in this respect was incorrect, one would
normally expect this fact to be mentioned in the forefront of that application.
The fact that there was no reference to such incorrect observation shows that
the stand now taken is the result of an afterthought. It is also significant
that even in the special leave petition which was filed in this Court no ground
was taken that the finding reproduced above had been challenged before the
trial court and that the observation of the High Court in this respect was
The main contention advanced by Mr. Andley is
that the trial court and the High Court were in error in awarding a decree for
possession 14-L251 Sup.CI/75 194 of the entire property in dispute in favour of
It is urged that Shamsher Singh was owner of
only one-half of the estate of Chandan Singh after the death of Tegh Singh and,
as such, Capt. Mitra, who was the executor appointed under the will of Shamsher
Singh, could even in a suit against a trespasser obtain only a decree for joint
possession to the extent of one-half share. The learned counsel in this context
has referred to two English decisions, Eughes v. Justin(1) and Muir v. Jenks(2)
wherein it was held in claims for recovery of money that the plaintiff was not
entitled to judgment for an amount in excess of that which was actually due to
him. Reference has further been made to the cases, Naresh Chandra Basu v.
Hayder Sheikh Khan & Ors.(3) Joy Gopal Singha & Ors. v. Probodh Chandra
Bhattacharjee,(4) Abdul Hamid & Ors. v. Durga Charan Das,(5) Rain Ranbijaya
Prasad Singh v. Ramjivan Ram & Ors.(6) and Abdul Kabir and Ors. v. Ht.
Jamila Khatoon and Ors. (7) in support of the proposition that a co-sharer in a
suit against a trespasser can get a decree for joint possession of the property
to the extent of his share only. As against the above, Mr. B. Sen on behalf of
the contesting respondents has argued that the contention that the plaintiff
was entitled only to a decree for joint possession should not be entertained in
appeal to this Court as no such plea was taken either in the trial court or in
the High Court. After hearing the learned counsel for the parties, we are of
the view that the submission made by Mr. Sen in this behalf is well founded.
The present suit for possession of the
property in dispute was filed by Capt. Mitra on February 1, 1958 on the
allegation that Shamsher Singh was the owner of that property and had executed
a will where-under the plaintiff was appointed the executor of Shamsher Singh's
estate. As under the will a right of maintenance and residence was given to
Dayali Devi, the plaintiff sought possession of the property in dispute subject
to the right and interest of Dayali Devi under the will of Shamsher Singh. The
trial court held that Shamsher Singh had acquired full ownership rights in the
assets left by Chandan Singh. When the matter came up in appeal before the High
Court, it found that 'the, appeal must fail because the decree awarded against
Deva Devi had become final and because Dayali Devi was bound by the Previous
decision dated November 21, 1961 of the High Court. The High Court under the
circumstances did not consider it necessary to construe the will of Chandan
Singh and to decide whether the finding recorded by the trial court that
Shamsher Singh had become the absolute owner of the entire estate of Chandan
Singh was correct or not. No plea was taken on behalf of the defendants either
in the trial court or in the High Court that the plaintiff was entitled only to
a decree for joint possession because of his being a co-sharer and not to a decree
for exclusive possession of the property in dispute. As no such plea was taken
in the trial court and the High Court, we are of the opinion that the
appellants should not be allowed to take this plea for the first time in this
Court. In arriving at this conclusion, we have taken into account the (1)
 16. B 67. (2)  K. B. 412 (3)AIR 1929 Cal. 28. (4) AIR 1935 Cal..
646 (5) AIR 1967 Cal. 116. (6) AIR 1942 Patna 397.
(7) AIR 1951 Patna 315.
195 various, facts and circumstances of the
case. One such circumstance is that the above plea is now being set up by
persons who admittedly had no, relationship with Chandan Singh, Shamsher Singh
or his widow Dayali Devi. The appellants,as already mentioned, base their claim
upon a will which, according to them, was executed by Dayali Devi two lays
before her death.
A very important circumstance, which has
weighed with us, is that the, suit giving rise to this appeal was instituted
more than 16 years ago on February 1, 1958. During the entire period of more
than 14 years that the case remained pending in the trial court and the High
Court, the plea now sought to be raised was never taken. The suit instituted in
1958 was the off shoot of a litigation between the parties which started in
December 1946 when an application was filed by Capt. Mitra for the grant of a
probate of the will of Shamsher Singh. Although the probate proceedings ended
as a result of the dismissal of the appeal of Dayali Devi against the order
granting probate the litigation between the parties continued and showed no
sign of abatement because Dayali Devi filed in 1952 a suit for declaration in
respect of the property left by Shamsher Singh. It would thus appear that we
have reached the culminating point of a litigation which arose out of a will
executed in the last century and which has been pending in one court or the
other since before the dawn of independence. The question is whether we should
call a halt and put an end to this litigation or whether we should allow the
litigation to take a further meandering course which must necessarily be the
case if we allow the new plea to be raised in this Court. it has already been
mentioned that the trial court held that Shamsher Singh had acquired full
ownership rights in the assets left by Chandan Singh. The High Court did not go
into this aspect of the matter as the need for doing so did not arise in the
light of the contentions advanced on behalf of the appellants before the High
Court. In case the appellants are now allowed to take the new plea, the case
would have to be remanded to the High Court for dealing with and recording a
finding on the above aspect of the matter.
The High Court shall have also in that event
to go into the question as to whether Dayali Devi could deny the title of Shamsher
Singh to the entire property in dispute in view of the fact that she herself
had set up a will of Shamsher Singh on the assumption that he was the full
owner of the property in dispute. The High Court did not fully deal with this
aspect of. The matter beyond observing that Dayali Devi was approbating and
reprobating. Deva Devi and Dayali Devi, who claimed rights and interest in the
property in dispute, are now no more. So is Capt. Mitra who was the party
arrayed against the two ladies in the litigation. It is time, in our opinion,
that we draw the final curtain on this long drawn litigation and not allow its
embers to shoulder for a further length of time, more so when the principal
contestants have all departed bowing as it were to the inexorable law of
nature. One is tempted in this context to refer to the observations of Chief
Justice Crowe in a case concerning peerage claim made after the death without
issue of the Earl of Oxford. Said the learned Chief Justice :
"Time. bath its revolutions; there must
be a period and an end to all temporal things-an end of names, and dignities
196 and whatsoever is terrene, and why not of De Vere ? For where is Nohun?
Where is Nowbray? Where is Mortimer? Why, which is more and most of all, where
is Plantagonet ? They are all entombed in the urns and sepulchres of
mortality.,, What was said about the inevitable and of all mortal beings,
however eminent they may be, is equally true of the affairs of mortal beings,
their disputes and conflicts, their ventures in the field of love and sport,
their achievements and failures for essentiality they all have a stamp of
mortality on them.
The appeal fails and is dismissed with costs.