Mohsin Ali & Ors Vs. State of
Madhya Pradesh [1975] INSC 103 (22 April 1975)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
KRISHNAIYER, V.R.
GUPTA, A.C.
CITATION: 1975 AIR 1518 1975 SCR 240 1975 SCC
(2) 122
ACT:
Sovereign grants-Construction of-Surrounding
circumstances as aid of construction-Occasion of grant as aid of construction.
HEADNOTE:
By Firman of 1934, the then ruler of Bhopal
in appreciation of long and distinguished service of Sir Liyaqat Ali gave him,
in addition to the grant of pension, the residential house in question and a
sum of Rs. 400/- per month out of the Privy Purse of the Ruler.
Liaqat Ali died in March 1947 without leaving
any issue or widow. In May, 1947, Syed Mohammed Ali, an heir of Liaqat Ali, who
was residing in the said house was forcibly ejected by the Government of
Bhopal. In 1957, the present appellants being the heirs of Syed Mohammed Ali
filed the present suit against the State of Madhya Pradesh for the recovery of
the possession of this house on the ground that the Firman gifted the house
absolutely to Liaqat Ali and that they were entitled to inherit the house. The
suit was resisted by the respondent on the ground that the ruler's Firman did
not confer absolute title on Liaqat Ali, but only a life interest in the house.
The Firman inter-alia stated "and you are granted your residential house
situated at Bara Mahal Shahjahanabad as a gift." The Trial Court decreed
the suit on the ground that the suit house was gifted by the ruler to Liaqat
Ali absolutely. The High Court on appeal reversed the finding and held that on
a true construction of the Firman Liaqat Ali was given only a life estate. On
appeal to this Court, it was contended by the appellants :-
1. The last sentence of the Firman declares
in unambiguous terms that the grant of the house is an out and out gift.
2. Since the grantor and the grantee are
Muslims, the gift would under Mohammedan Law have the effect of conveying an
absolute heritable estate.
3. In a letter addressed by the Chief
Engineer and Secretary to the P.W.D., Bhopal, issued in the year 1938, it was
mentioned that the building in question was in the possession and ownership of
this Liaqat Ali.
It was contended by the respondents
1. The grant of the house is not to be
disassociated from the pensionary grants.
2. The Firman represents a grant made by an
absolute ruler in favour of his subject was not a hiba made by one Muslim to
another Muslim under Mohammedan Law.
3. The grant being a sovereign grant has to
be construed strictly against the guarantee and imperfection in the language of
the Firman had to be resolved in favour of the Government by reading it as a
whole in the light of the surrounding circumstances.
Dismissing the appeal,
HELD : In case of sovereign grants, where two
interpretations are possible, that which is most favourable to the sovereign is
to be preferred. [244B-C]
HELD FURTHER-The Firman does not convey in
precise and unequivocal terms full and absolute ownership of the suit house to
the grantee. The Firman does not use the word like heritable estate or that the
grant would take effect from generation to generation or grant to the grantee
and his heirs. [246F] 241 Held further-The Firman has to be read as a whole. It
cannot be dissected into three water-tight compartments. It is permissible to
consider the surrounding circumstances and the occasion on which this grant was
made as legitimate aids to construction of the Firman. The Firman confers
threefold benefits; pension, Rs. 400/- per month and beneficial interest in the
residential house. The object of conferring these benefits was the same,
namely, to secure to the retiring servant a handsome maintenance and
comfortable residence for the rest of his life. The surrounding circumstances.
namely. the grantee had no issue nor any near relation and was already residing
at the suit house, also confirm this interpretation. [246G, 247A-B].
HELD FURTHER-The grant is not a hiba made in
accordance with Mohammedan Law. It was a grant made by an absolute ruler to his
subject. [248D-E].
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 166 of 1968.
From the judgment and decree dated 5th
September, 1962 of the Madhya Pradesh High Court in First Appeal No.1 of 1956.
Hardayal Hardy and S. S. Hussain for the
appellants.
Ram Panjwani, H. S. Parihar and I. N. Shroff,
for the respondent.
The Judgment of the Court was delivered by
SARKARIA, J.--By a firman, dated October 25, 1934, Nawab Sir Hamidullah Khan,
the then Ruler of Bhopal State, in appreciation of the long and distinguished
services of Sir Liaqat Ali, gave to the latter, in addition to the grant of
pensions, the residential house in question as "inayat ataa". Sir
Liaqat who was already residing in this house, continued therein till he died,
issueless and widowless, in March 1947. One Syed Mohammed Ali who was the son
of Sir Liaqat's father's sister, also used to reside in this house with the
deceased. After Sir Liaqat's death, Syed Mohammed Ali continued in occupation
of this house as one of the nine heirs of the deceased, till he was
"forcibly and unlawfully" ejected in May 1947 by the then Government
of Bhopal.
Paying a "deaf-ear" to the repeated
demands of Syed Mohammed Ali for restoration of possession, the Government
"persisted in the act of trespass" and continued in illegal possession
of the house. After his ouster, Syed Mohammed Ali also died sometime in 1947.
On April 30, 1947, the Nawab of Bhopal signed
the Agreement of Merger and the State of Bhopal was taken over by the Chief
Commissioner on behalf of the Government of India on June 1, 1949. Thereafter,
on November 1, 1956 the territory of the former Bhopal State became a part of
the re-organised State of Madhya Pradesh.
On August 21, 1957, after serving a notice
under s. 80, Code of Civil Procedure, the plaintiffs 1 to 3, who are the son,
daughter and widow, respectively, of Syed Mohammed Ali, instituted the suit
against the State of Madhya Pradesh for recovery of possession of the house, on
the footing that under the firman , it had been gifted absolutely by the Nawab
to Sir Liaqat Ali who died possessed of it as full owner, and on the donee's
death, it was inherited by Syed Mohammed Ali who, in turn, was succeeded by the
plaintiffs.
It was further pleaded 242 that Syed Mohammed
Ali was "forcibly and unlawfully" dispossessed by the Government in
May, 1947.
The suit was resisted by the defendant State
on the ground, inter alia, that the Ruler's firman "did not confer
absolute title on late Liaqat Ali", but only a life-interest in the house.
The Additional District Judge who tried the
suit, found on a construction of the firman (Ex-P-1), that the suit house had
been gifted by the Ruler to late Sir Liaqat Ali, absolutely, and, in
consequence, decreed the suit. On appeal, a Division Bench of the High Court of
Madhya Pradesh reversed that finding and held that "on a true construction
of the Firman (Ex.P-1), the grantee, the late Sir Syed Liaqat Ali, was given
only an estate for life in the suit property, and the plaintiffs as his heirs
had no right to inherit it as his property. In the result, the appeal was
allowed and the plaintiffs' suit was dismissed.
On a certificate granted by the High Court
under Art. 133 (1) (a) of the Constitution read with Sections 109 and 110 of
the Code of Civil Procedure, the plaintiffs have now come in appeal to this
Court.
The main issue framed by the trial court was
in these terms :
"Was the house in dispute given by the
Ruler to Shri Liaqat Ali deceased absolutely or for life only." The
decision of this issue turns on an interpretation of the Firman (Ex.P-1), dated
October 24, 1934 whereby the Ruler gave this house to the deceased.
The original Firman is in Urdu. As rendered
into English by the courts below, it reads:
"Hon'ble Motamid-u-Sultan Nasir-ul-Mulk
Syed Sir Liyaqat Ali".
"Looking into considerations with
gratitude your valuable services and faithful sacrifices which you have
rendered for more than 30 years and considering the economic condition of the
State you have served without remuneration for the last 2 years, your application
(for pension) is granted. You are granted permission to retire in lieu of your
valuable services from 1st October 1934. You should hand over charge of
Musbir-ul-Mubami Rubkari Khas to Honourable Shoeb Qureshi.
Besides that pension you are entitled to receive
under the Pension Rules of the State Treasury, you are also entitled to receive
a sum of Rs. 400/- as monthly pension from Trea- sury of Deodhi in lieu of
valuable services of Deodhi Khas and you are (further) granted your residential
house situated at Bara Mahal Shahjahanabad, as gift." 243 The original of
the crucial sentence, which has been underlined, reads :
"Aur aapka sakoonti makan waqya Bara
Mahal Shahjahanabad apko inayat ataa kiya jata hai." The Firman was by
order published in the Bhopal Government Gazette, dated 31-10-1934, under the
Heading : 'Pension to Aali Mortabat Sir Syed Liaqat Ali Saheb'. Rendered into
English, its material part runs thus :
"Now the said Hon'ble again requests for
grant of his previous application on account of rendering service for more than
thirty years.
Hence His Highness the Ruler of Bhopal Khuld-
Allah-Mulkahum considering his valuable services and his faithful sacrifices
that he had served without remuneration for the last two years, taking into
consideration the eco- nomic condition of the State. Considering (all his
valuable services) with gratitude (His Highness the Ruler of State) grants him
permission to retire from 1st November, 1934 and also grants him his
residential house situated at Bara Mahal Shahjahanabad as gift.
His Highness the Ruler of Bhopal State
further orders that Hon'ble Syed Sir Liaqat Ali Saheb be paid Rs. 400/monthly
pension from the Treasury of Deodhi Khas in respect of services of Deodhi Khas
besides his regular pension under the Rules of the State Treasury for which he
is entitled to receive from the Treasury of State".
The original of the underlined sentence, in
the Gazette Notification reads :
`aur unko sakoonti makan waqya Bara Mahal
Shahjahanabad inayat marhmat pharmate hain." It is to be noted that the
disposition evidenced by the Firman, Ex. P-1, is a tripartite grant made by an
autocratic ruler to his subject in recognition of long, meritorious services
rendered by the latter. This grant belongs to the category of disposition,
which under the English Common Law are known as "Crown grants".
" The tenor and language of the Firman,
particularly the words aapko Inayat Kiya Jata Hai" unmistakably mark it
out as a Sovereign grant. According to Steingass' Persian- English Dictionary "inayat"
(Noune) signifies a favour, a gift, a present, a bounty"; and
"Ataa" (Verb) means "to give, to confer a benefit or present
with", "Ataa" (Noun) implies "Giving, a present, gift,
donation, favour, a grant, endowment, concession; consideration". In the
widest sense, grant' may comprehend everything that is granted or passed from
one to another by deed. But commonly the term is applied to rights created or
transferred by the Crown, e.g., grants of pensions, patents, charters franchise
(See Earl Jowtt's Dictionary of English Law).
244 In England, contrary to the ordinary rule
applicable to grants by, a subject, grants by the Crown are usually construed
most favourably for the Crown. The rule in case of Royal Grants is that general
words will not pass prerogative rights by implication.
This general rule is, however, capable of
important relaxations in favour of the subject. If the intention of the
Sovereign is obvious from the document which in precise, unequivocal terms
defines the extent and nature of the benefit conferred, it must take effect. No
question of seeking extrinsic aid to its construction arises. If the grant is
for valuable consideration it must be construed strictly in favour of tile
grantee, for the honour of the Sovereign and where two constructions are
possible, one valid and the other void, that which is valid ought to be
preferred, for the honour of the Sovereign ought to be more regarded than the
Sovereign's profit. Where, however, two interpretations may be given to the
grant, both of which are good, that which is most favourable to the Crown is in
many cases preferred (see Halsbury's Laws of England, 3rd Ed.
Vol. 7, Paragraphs 669 and 670 pages 314316).
These rules of interpretation have been
applied to Sovereign grants in India, also (see Raja Rajinder Chand v.
Sukhi(1), Gulabdas jivandas v. Collector of Surat(2), Sheikh Sultan Sani v.
Shekh Ajmoddin(3), Azziz-un-nissa v. Tasadduq Husain Khan(4), Ram Narayan Singh
v. Ram Saran Lal(5).
It is in the light of the above principles that
we have to determine whether by the Firman, Ex. P-1, the Ruler intended to
grant a life estate or an absolute estate in the suit house.
Mr. Hardy, learned Counsel for the appellants
contends that the disposition in dispute would not fall within an exception to
the general rule according to which a Sovereign grant is construed in favour of
the Sovereign, because firstly, the last sentence of the Firman, the
interpretation of which alone is in question, declares in plain, self-
contained and unambiguous terms that the grant of house is an out and out gift
to the grantee, and secondly, the grantor and the grantee, being Muslims, the
gift would, under Mohammedan Law, have the effect of conveying an absolute
heritable estate. In this connection, support has been sought from certain
observations of the Privy Council in Sardar Nawazish Ali Khan v. Sardar Ali
Raza(6), which are as follows :
"In general, Muslim Law draws no
distinction between real and personal property, and their Lordships know of no
authoritative work......... which affirms that Muslim Law recognizes the
splitting up of ownership of land into estates, (1)[1956] SCR 889 as per S. K.
Das J. at p. 902, (2) 6 I.A.5.4 (3) 30 I.A. 50.
(4)28 I.A. 65.
(5) ILR 46 Cal. 683 (P.C.).
(6) 75 I.A. 62 at 77.
245 or in point of quality like legal and
equitable estates, or in point of duration like estates in fee sample in tail,
for life, or in remainder. What Muslim Law does recognize and insist on, is the
distinction between the corpus of the property itself (ayn) and the usufruct in
the property (manafi). Over the corpus of the property the law recognizes only
absolute dominion, heritable and unrestricted in point of time, and where a
gift of the corpus seeks to impose a condition inconsistent with such absolute
dominion the condition is rejected as repugnant, but interest limited in point
of time can be created in the usufruct of the property and the dominion over
the corpus takes effect subject to any such limited interests." (emphasis
added) Mr. Hardy refers to the letter, dated 29-6-1938 (Ex. P-3) of the Chief
Engineer and Secretary, P.W.D.,Bhopal whereby two maps of the house, Nawab
Manzil were sent to the grantee. The portions shown in light red colour in
these maps were referred to in this letter as in the "possession and
ownership" of the grantee according to the Gazette Notification No. 7,
dated 31st October, 1934.
As against the above, Mr. Panjwani, learned
Counsel for the Respondent submits that the grant of the house is not to be
dissociated from the pensionary grants; that even the last sentence of the
Firman, read in the context along with its preamble reasonably bears only one
construction viz., that a right of residence for life, to be conveyed by the
Ruler to the grantee. Stress has been laid on to be conveyed by the Ruler to
the grantee. Stress has been laid or,. the fact that there are no words such
as, nasalan-dar-nasalan, pushatdar-pushat etc. in the language of the Firman
showing that absolute. heritable rights in the property were conferred on the
grantee. Counsel further maintains that the Firman represents a grant made by'
an absolute Ruler in favour of his subject on the occasion of the latter's
retirement from service and that it was not a mere hiba made by one Muslim
under Mohammedan Law to another Muslim.
Reference to Mohammedan Law, proceeds the
argument, has no relevance. It is urged that the grant being a Sovereign grant,
had to be construed strongly against the grantee, and imperfections in the
language of the Firman had to be resolved in favour of the Government, by
reading it as a whole in the light of the surrounding circumstances and even
the subsequent conduct of the then Bhopal Government in ejecting, Syed Mohammad
Ali from the house in May, 1947.
That ejectment,' according to the Counsel,
amounted to resumption of the grant-(by' the grantor) who was then alive and
was still the absolute Ruler of Bhopal state. Counsel has referred to several
authorities in support, of these contentions.
We are not persuaded to accept the appellant's
contention that the Firman conveys, in precise and unequivocal terms, full and
absolute ownership of the suit house to the grantee. in our opinion, the,
language of the last sentence of the Firman, which is the sheet-: anchor of
this contention, 'even by itself, does not indubitably and 246 unequivocally
indicate that the intention of the Ruler was to grant an absolute estate. The
Firman is conspicuous by the non-employment of any words declaring that
thenceforth the grantee would have a heritable estate in the house or that the
grantor had transferred all his rights in the property, absolutely in favour of
the grantee. There is no use of such words that the grant would take effect as
"nasalan-darnasaln", "from generation to generation"
"towarsan, kaiam u qaman" "to grantee and his heirs" etc.
pointing towards the creation of a heritable
estate. Even the use of such terms by itself, has been held to be an
inconclusive indication of the grantor's intention to confer absolute,
heritable rights. Thus, in Gulabdas Jagjivandas's case (supra) despite a
reference in the sanad to the children or descendants' of the grantee, the
Judicial Committee held that the grant bad not been made on terms which would
make them hereditary".
Again, in Sheikh Sultan v. Shekh Ajmoddin
(supra), delivering the judgment of the Board, Lord Hannen quoted with
approval, a minute dated 15-3-1922, recorded by Sir Thomas Munro in which he
states that the terms in such documents (sanads) 'forever' from generation to
generation or in Hindu grants, 'while the sun and moon endure', 'are mere forms
of expression', and were never supposed either by the donor or receiver to
convey the durability which they imply or any beyond the will of the Sovereign.
On the authority of another minute recorded by Sir Thomas Munro, it was further
observed "that while the seizure of private property by the native princes
would have been considered unjust by the country, Jagir grants were not
regarded by the people in the light of private property".
It is not necessary to multiply authorities
with regard to the construction of such customary terms which could possibly be
indicative of the grantor's intention to make a heritable grant, because the
Firman Ex. P-1, is benefit of all such terms. It will be sufficient to say that
the language of the Firman does not in clear and unambiguous terms express an
intention to create an absolute estate in favour of the grantee and his heirs.
The Firman has therefore to be construed in accordance with the well-
established rule of construction applicable to Sovereign grant.
Another cardinal canon of interpretation to
be borne in mind is that in order to ascertain the real intention of the
grantor, the Firman has to be read as a whole. It will not be correct as the
appellants want us to do to dissect the Firman into three water-tight
compartments or to read last sentence of the Firman out of the context. It is
also per- missible to consider the surrounding circumstances and the occasion
on which this grant was made, as legitimate aids to construction of The Firman
(see Gulabdas Jagjivandas v. Collector of Surat (supra).
The occasion for the grant as apparent from
the preamble of the Firman, Ex.P-1, (reproduced in the Notification Ex-P-2) was
that the grantee, Sir Liaqat Ali, having attained the age of superannuation,
was retiring with the permission of the grantor, after putting in
"valuable" and "faithful" service for more than thirty
years, including two years for which he served without remuneration, in view of
the 247 poor economic condition of the State. An analysis of the Firman will
show that it confers three-fold benefits on the grantee. Firstly, it rants him
such pension as would be admissible under the Service Rules. This he would draw
from the State Treasury. Secondly, in addition to the first, it grants him
pension at the rate of Rs. 400/- per month which the pensioner would be
entitled to draw from the Deodhi Treasure i.e., the Privy Purse of the Ruler.
Thirdly, it grants him a beneficial interest in the residential house, in these
terms : "Aur aapka sakoonti makan waqya Bara Mahal Shahjahanabad apko
inayat ataa kiya jata hai".
As is indicated in the Firman (Ex.P-1) (P-2)
Notification in making this tripartite grant the Ruler was actuated by
consideration of gratitude for the valuable services rendered by the grantee.
The object of conferring these three-fold benefits was the same, namely, to
secure to the retiring servant a handsome maintenance and comfortable residence
for the rest of his life. In other words, all the three benefits granted under
this Firman were cognate benefits, arising out of the same occasion, and made
with the same object in view viz., to enable the grantee to live comfortably in
retirement. These related benefits could be compendiously described as
"retirement benefits". The first two benefits were indisputably
pensionary benefits enuring only for the lifetime of the grantee. All the three
kindred benefits, including the one in question, were expressly meant for the
person of the grantee. This is clear from the word 'apko' which means "to
you" in the phrase "apko inayat ataa kiva jata hai" The
conjunction "aur" (and) at the commencement of the last sentence of
the Firman inextricably links the grant of interest in the residential house,
with the pensionarybenefits conferred in the foregoing parts of the Firman. In
short, allthe three-fold benefits granted under this Firman are, off spring
ofthe same genus.
The language of the Firman relating directly
to thegrant in question therefore takes its colour from the preceding parts of
the Firman relating to the pensionary benefits conferred on the grantee for
life. Thus if the crucial words quoted above, are construed in the context of
the akin grants, and-according to the general tenor of the Firman as a whole,
it becomes clear that the intention of the Ruler was to grant only a right of
residence limited to the life time of the grantee-and not an absolute estate in
the house.
The surrounding circumstances also confirm
the interpretation adopted by us. The first such circumstance was. that at the
time of the grant, the grantee had no issue, nor any near relation. Indeed, he
died widowless and issue-less. In this context, coupled with the omission of
any words such as to "grantee and his heirs" or "nasalan-dar-nasalan"
indicating the grant to be heritable, it would be reasonable to hold that the
grant was intended to be for life only.
There is yet another circumstance which
points towards the same conclusion. It is that at the time of the grant the
grantee was already residing in the suit house. In this context, the word
"sakoonti" ('residential) in the last part of the Firman used in
association with 'makan' (house) assumes significance. It suggests that the
intention of the 10 SC/75-17 248 grantor was to convey to the grantee no more
than a right of residence in the house which the latter was already enjoying.
The letter Ex.P-3 written by the Chief
Engineer on 29-6-1938 is of hardly any assistance in construing the grant made
three or four years earlier. It could not be treated as contemporaneous conduct
of the grantor or his agent, which could legitimately be taken into
consideration in construing the grant.
On parity of reasoning, it is doubtful
whether the fact of eviction of Syed Mohammed Ali from the suit house, about
two months after the death of the grantee and about 15 years after the grant,
could justifiably be called in aid as a "surrounding circumstance" to
interpret the Firman dated 24- 10-1939. The High Court has taken this circumstance
also into account. We need only say that even after excluding this
circumstance, there remains sufficient and sound foundation in the language of
the Firman and the contemporaneous surrounding circumstances, including the
common genus, the same occasion and purpose of the three- seeded grant, to hold
that the Ruler had conferred only a limited estate in the suit property for the
life-time of the grantee.
The argument advanced on behalf of the
appellants that the grant in question was a 'hiba' made in accordance with
Mohammendan Law by one Muslim to another, has been stated only to be rejected.
To all intents and purposes, it was a rant made by an absolute Ruler to his
subject who had rendered long meritorious services, on the eve of his
retirement. Reference to Muslim law is herefore misconceived. We may, however,
say in passing that even according to the observations of the Privy Council
relied upon by the Counsel, creation of an interest limited in point of time,
in the usufruct of the property is not necessarily repugnant to Muslim Law.
Mr. Panjwani has advanced an alternative
argument also, to support the decision of the High Court. The contention is
that even if it is assumed that the house had been given to Sir Liaqat Ali
absolutely, then also the grant had come to an end on resumption of the
possession of the house by the Government of Bhopal in 1947, and thereafter the
grant continued to be non-est because after the merger of the State of Bhopal
on 1-6-1949, it was not recognised by the Government of India or by the new
Government of Madhya Pradesh after Bhopal became a part of that State on 1-11-
1951. Rather, as per Ex.P-6, the new Government after the disappearance of
Bhopal State from the scene, repudiated the grant. In these circumstances,
submits the Counsel, the appellants did not carry with them the right, if any,
they had under the grant as subjects of the Ex-Sovereign Ruler of Bhopal and
after the extinction of Bhopal State and its Ruler, they had only such rights
as were granted or recognised by the new Sovereign i.e. the Central Government.
According to the Counsel, the plaintiffs'
claim was not enforceable in the municipal courts. Reliance has been placed on
the decision of this Court in State of Gujarat v. Vora Fiddali Badruddin
Mithibarwale(1).
1[1964] 6 S.C.R. 461 at 551.
249 There is no foundation for the plea
either in the pleadings or in the issues. We therefore do not allow it to be
raised for the first time in this Court.
For the foregoing reasons, the appeal fails
and is dismissed with costs, P.H.P. Appeal dismissed.
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