Smt. Rukhamanbai Vs. Shivram & Ors
[1981] INSC 158 (3 September 1981)
DESAI, D.A.
DESAI, D.A.
KOSHAL, A.D.
MISRA, R.B. (J)
CITATION: 1981 AIR 1881 1981 SCR (1) 607 1981
SCC (4) 262 1981 SCALE (3)1437
ACT:
Bombay Tenancy and Agricultural Lands Act, 1948,
sections 2 (18), 4, 32F and G, scope of-Whether a limited owner of agricultural
land governed by the Tenancy Act during his/her life time was entitled to lease
the land, and is he or she did lease the land whether the tenant inducted by
the holder of life estate could be said to be lawfully cultivating the land so
as to acquire the status of a deemed tenant under section 4 of the Act and as a
corollary would become a deemed purchaser on the tillers' day-Transfer of
Property Act, section 13, section 76A and construction of the deed of
settlement.
HEADNOTE:
Under the deed of settlement (Ex. 2A) dated
May 22,1930, the appellant-landlady acquired a life-interest in certain
agricultural lands under dispute and the reversion remainder was in her
children. During her lifetime she was entitled to enjoy the income of the
property but she could not dispose of the property by will, gift or sale. She
was also under a disability to encumber the estate though she had the right of
carrying on the "vahivat" (management).
By virtue of the provisions of section 32 of
the Bombay Tenancy and Agricultural Lands Act, 1948, providing that on April 1,
1957 styled as tillers' day, a tenant of Agricultural land covered by the said
Act would be the owner of the land held by him, if other conditions specified
therein are fulfilled, the respondents made five separate applications on
August 27, 1962 against the appellant before the Agricultural Lands Tribunal,
Raver under section 32G for determining the price of the land held by each of
them as tenant. The appellant contested the right of the tenant to purchase the
land, inter alia contending that under the deed of settlement she acquired a
right only to usufruct of land involved in the dispute and she being a limited
owner and the settlement imposing certain disability on her precluding her from
dealing with the property which would indicate that she could not have leased
out the land thereby creating an encumbrance which would be impermissible under
the deed of settlement and consequently the tenant of each piece of land could
not be said to be lawfully cultivating the land so as to a become the deemed
tenant under section 4 of the Tenancy Act. The respondents not being tenants
within the meaning of the Tenancy Act could not have become the owner of the
land on the tillers' day. Alternatively it was contended that the minor
children of the appellant, she being a limited owner had acquired a vested
right in the land and, therefore, as they were minors the date of compulsory
purchase would be postponed under section 32F ousting the jurisdiction of the
tribunal to determine the price under section 32G. The Tribunal allowed 608 the
applications and negatived the appellant's contentions.
All the five appeals preferred by the
appellant were allowed by the Collector of Jalgaon. The revision petitions
filed by the tenants under section 76 of the Tenancy Act before the Maharashtra
Revenue Tribunal were allowed holding that even though the landlady in these
cases was a limited owner the instrument settling the property on the landlady
did not preclude her from leasing the land and the lease was accordingly valid
under section 4, the tenant would be a deemed tenant within the meaning of the
Tenancy Act and such deemed tenant would become the owner of the land held by
him on the tillers' day. The appellant approached the High Court under Article
227 of the Constitution. While rejecting the special civil applications the
High Court remanded the case to the Collector to give an opportunity to the appellant
to agitate the contention about the quantum of price as it was not dealt with
by the Collector on merits. The appellant having obtained a certificate under
Article 133(1) (a) and (b) of the Constitution preferred these five appeals.
Dismissing the appeals, the Court,
HELD: 1. On a plain reading of the deed and
the admitted position that the appellant had leased the land to each of the
respondents and in view of the requirements of section 4 of the Tenancy Act,
1948, it is clear that the respondents would be deemed tenants under that
section. [616 E-F] 1 :1. Section 4 comprehends within its sweep any person
lawfully cultivating any land belonging to another person.
If land belongs to one person and another is
lawfully cultivating it, unless such person falls under any of the excepted
categories; he would acquire the status of a deemed tenant. The excepted
categories are: (a) a member of the owner's family, or (b) a servant on wages,
payable in cash or kind but not in crop share or a hired labourer cultivating
the land under the personal supervision of the owner or any member of the
owner's family, or (c) a mortgagee in possession. It would thus appear that if
the land belonging to one person is being lawfully cultivated by another person
and that such other person is not a member of the owner's family or a servant
on wages payable in cash or kind but not in crop share or a hired labourer or a
mortgagee in possession then such cultivator lawfully cultivating the land
would be deemed to be a tenant. The legal fiction of clothing a lawful
cultivator of land belonging to other person has widened the traditional
concept of expression "tenant" which would normally imply contractual
relationship. [615 E-H, 616A] 1:2. Under the deed of settlement appellant was given
a life-estate. She was the owner of the land during her life time with a
limitation that she could not will, gift or sell the property or encumber the
same. In view of these four limitations she is undoubtedly a limited owner. But
this limited owner holding the life-estate has been given the right to
administer the estate after she attained majority.
Administration of the estate would normally
include leasing of the property except where a specific condition is prescribed
precluding the administrator from leasing the property. There is no such
limiting or restrictive condition prohibiting the appellant in the course of
her management from leasing the land. The appellant beneficiary being a woman,
the settlors must have thought that she may not be able to personally carry on
agricultural operations and therefore when the settlors authorised her, on
attaining majority, to administer the estate 609 it would per se in the absence
of a limiting or restricting condition to the countrary enable her to lease the
land.
Thus, if the appellant as beneficiary after
attaining majority took over the administration and as part of the
administration leased the land, the person so inducted by her on the land would
be lawfully cultivating the land belonging to the appellant and being not in
any of the excepted categories would be deemed to be a tenant.[616 B-E]
Dahyalal and Ors. v. Rasul Mohammed Abdul Rahim, [1963] 3 SCR 1, followed.
2. Upon a pure literal construction of deed
coupled with intendment of the settlement, the appellants' interest in the
property was a vested interest during the life line with a right to take over
management on attaining majority and to deal with the property in her own way,
and the children had only contingent interest during the period. The property
would devolve on the heirs named in the deed and the devolution would take
place on her death. Section 13 of the Transfer of Property Act makes this
position clear since none of her children to whom the remainder was given was
in existence at the time of transfer. Even if transfer is in favour of unborn
person, at the date of transfer to be valid there has to be a prior interest
created by the very transfer. This prior interest though limited would not be
contingent but vested interest. In fact the interest of future born children
would be contingent till the death of the appellant. The deed of settlement
cannot be construed as a transfer in favour of unborn person, yet it settles
property on trust and the unborn children, under trust, may be beneficiaries
but they can claim interest only after the death of the appellant and no
interest in her life time.
Under the deed of settlement an interest is
created in favour of the children of the appellant and the interest would take
effect on the happening of specified uncertain event-uncertain as to
time-namely, the death of the appellant the interest of the children would be
contingent.
It is nothing short of spes successionis [618
D-H, 619 A] Rajes Kanta Roy v. Santi Debi, [1957] SCR 77, discussed and
distinguished.
3. The right to administer the property
conferred on the appellant on her attaining majority inheres the right to lease
the property. If it be so, it is futile to contend that restraint on the right
to encumber would preclude her from leasing the land. The right to manage or
administer an immovable property such as agricultural land as a prudent man,
comprehends the right to lease, save where the contrary intention is indicated.
It is equally well-recognised that a limited owner or a life-estate holder in
agricultural land, unless a clear intention to the contrary is expressed, would
be entitled to lease the land during his or her life time.
Reading the deed of settlement as a whole no
such contrary intention could be found. [620 B-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 285-89 of 1969.
(From the judgment and order dated 7th
December, 1966 of the Bombay High Court in Special Civil Appeal Nos. 4 to 8 of
1965) 610 G.L. Sanghi and A.G. Ratnaparkhi for the Appellant.
M.C. Bhandare, Mrs. Sunanda Bhandare, T.
Sridharan and Miss C.K Sucharita, for the Respondents.
The Judgment of the Court was delivered by
DESAI, J. In the wake of agrarian reforms initiated by the Bombay Tenancy and
Agricultural Lands Act, 1948 ('Tenancy Act' for short) an amendment of far
reaching and revolutionary character was introduced in 1956 so as to eliminate
every intermediary between the tiller of the soil and the state. The title of
the landlord to the land passes immediately to the tenant on the tillers' day
and there is a completed purchase or sale thereof as between the landlord and
the tenant. The title of the land which was vested originally in the landlord
passes to the tenant on the tillers' day or the alternative period prescribed
in that behalf. This title is defeasible only in the event of the tenant
failing to appear or making a statement that he is not willing to purchase the
land or committing default in payment of the price thereof as determined by the
Agricultural Lands Tribunal (See Sri Ram Ram Narain Medhi v.
The State of Bombay.
Section 32 provided that on April 1, 1957
styled the tillers' day, a tenant of agricultural land covered by the Tenancy
Act would become the owner of the land held by him if other conditions
specified in the section were fulfilled.
A forum styled Agricultural Lands Tribunal
was set-up and a procedure was prescribed in the Act to determine the price
payable by such tenant to the erstwhile landlord on becoming owner of the land
held by him. Accordingly five tenants of five different pieces of agricultural
land made five separate applications on August 27, 1962 against a common
landlord, the appellant herein before the Agricultural Lands Tribunal ('ALT'
for short), Raver, under section 32 of the Tenancy Act for determining the
price of land held by each of them as tenant. The land lord appeared in each
proceeding and contested the right of the tenant to purchase the land,
inter-alia, contending that under a deed of settlement dated May 22, 1930, she
acquired a right only to usufruct of land involved in the dispute and thus she
is a limited owner and the settlement imposes certain disability on her
precluding her from dealing with the property which would indicate that she 611
could not have leased out the land thereby creating an encumbrance which would
be impermissible under the deed of settlement and consequently the tenant of
each piece of land could not be said to be lawfully cultivating the land so as
to become the deemed tenant under section 4 of the Tenancy Act. It was also
contended that, the applicant (respondent herein) before ALT was not a tenant
within the meaning of the Tenancy Act and therefore he could not have become
the owner of the land on the tillers' day. Alternatively, it was contended that
the minor children of the landlord who being the limited owner, had acquired a
vested right in the land involved in the dispute under the deed of settlement
and therefore as the landlords were minors the date of compulsory purchase in
the case of such minor-landlord would be postponed under section 32 and
therefore the ALT had no jurisdiction to determine the price under section 32
G.
The ALT held that the appellant was the
landlord and the tenant in each case was a deemed tenant under section 4 of the
Tenancy Act and on 1st April, 1957 by the operation of law he became the owner
thereof. It was also held that the ALT was under a statutory obligation to
determine the price under section 32 G. The ALT accordingly proceeded to
determine the price in each case.
Five separate appeals were preferred by the
appellant landlord in each case to the Collector of Jalgaon. The Collector held
that the present appellant landlord had a limited interest in the land and thus
as her interest fell short of ownership, she could not be regarded as landlord
within the meaning of the expression in the Tenancy Act, Consequently, the
Collector held that the tenant in each case could not be deemed to be a tenant
within the meaning of the expression in the Tenancy Act. It was accordingly
held that the tenant in each case did not become the deemed purchaser under
section 32 and therefore the ALT had no jurisdiction to determine the price.
The Collector allowed all the five appeals and dismissed the five applications
preferred by the tenant in each case.
The tenant in each case preferred a revision
petition under section 76 of the Tenancy Act before the Maharashtra Revenue
Tribunal. The Special Bench of the Maharashtra Revenue Tribunal by a common
judgment allowed five revision petitions preferred by the tenants and set aside
the order of the Collector and restored the order made by the ALT holding that
even though the landlord in these cases was a limited owner the instrument
settling the property 612 on the landlord did not prohibit the landlord from
leasing the land and lease was accordingly valid and therefore under section 4,
the tenant would be a deemed tenant within the meaning of the Tenancy Act and
such deemed tenant would become the owner of the land held by him on the
tillers' day.
The landlord approached the High Court under
article 227 of the Constitution. The Division Bench of the Bombay High Court by
a common judgment disposed of the five special civil applications filed by the
landlord. The High Court relying on the decision of this Court in Dahya Lal and
Others v. Rasul Mohammed Abdul Rahim held that the deed of settlement did not
prohibit the landlord from leasing the land and if the lease is created by such
a limited owner not precluded from leasing the land, it would confer on the J tenant
of such landlord, the status of a deemed tenant under section 4 and such a
tenant would be deemed to have purchased the land held by him on the tillers'
day. The High Court negatived the contention that the children of the landlord
had a vested interest in the land involved in the dispute during the life-time
of the landlord and The children being minors, the date of purchase would be
postponed under section 32 F. The High Court accordingly rejected the special
civil applications but remanded the case to the Collector to give an
opportunity to the landlord to agitate the contention about the quantum of
price which Contention was not dealt with by the Collector on merits.
The landlord by certificate under article 133
(1) (a) and (b) of the Constitution preferred these five appeals Expression
'Tenancy' has been defined in section 2 (17) of the Act to mean
"relationship of landlord and tenant".
'Tenant' is defined in section 2 (18) as
under:
'Tenant" means a person who holds land
on lease and includes:
(a) a person who is deemed to be a tenant
under section 4;
(b) a person who is a protected tenant; and
613 (c) a person who is a permanent tenant;" Section 4 which is material
for the present appeal reads as under:
"4. A person lawfully cultivating any
land belonging to another person shall be deemed to be a tenant if such land is
not cultivated personally by the owner and if such person is not:- (a) a member
of the owner's family, or (b) a servant on wages payable in cash or kind but
not in crop share or a hired labourer cultivating the land under the personal
supervision of the owner or any member of the owner's family, or (c) a
mortgagee in possession." There are two explanations appended to this
section which are not material for the present purpose. Section 32 (1) which
was introduced in 1956 provided that on the 1st day of April, 1957, called the
tillers' day, every tenant, subject to the provisions of the next succeeding
sections, be deemed to have purchased from his landlord, free of all encumbrances
subsisting thereon on the said day, the land held by him as tenant if he
satisfied the conditions set out in the section. Section 32G provided that as
soon as may be after the tillers' day, the ALT shall publish or cause to be
published a public notice in the prescribed form in each village within the
jurisdiction calling upon:- (a) all tenants who u/s 32 are deemed to have
purchased the lands:
(b) all landlords of such lands, and (c) all
other persons interested therein; to appear before the ALT on the date
specified in the notice. The ALT shall then proceed to record statement of the
tenant whether he is or is not willing to purchase the land held by him as a
tenant If the tenant is willing to purchase, the Tribunal shall after giving an
opportunity to the tenant and landlord and all the other persons 614 interested
in such land to be heard and after holding an enquiry determine the purchase
price of such land in accordance with the provisions of section 32 and
sub-section 3 of section 63A.
Section 32 post pones the date of statutory
purchase in the case where a landlord is a minor or a widow or a person subject
to any mental or physical disability or a serving member of the armed forces to
a date one year from the expiry of the period during which such landlord is
entitled to terminate the tenancy under section 31.
Having noticed the relevant provisions of the
Act, it is necessary first to refer to the deed of settlement under which the
landlord acquired land involved in this appeal. By the deed of settlement Exh.
2-A dated May 22, 1930 Devidas Devlal Seth father and Sheo Parshad Devidas
Seth, brother of the appellant landlord settled on trust the properties more
particularly described in the deed. At the time of settlement, appellant the
beneficiary under the trust was a minor and the deed provided for the
consequences to ensue on her attaining majority. The relevant portion of the
deed of trust in this behalf reads as under:
"After the girl completes 21 years and
while she is physically and mentally in good condition, the right of carrying
on the 'vahivat' (management) of the estate and of spending the income thereof
is with her alone, during her life-time. However, she has no right in any way
either to purchase the aforesaid estate or to create in any way a charge
(Translation is disputed and is stated that 'encumbrance' is the appropriate
rendering) thereon; nor she has a right to dispose of the said estate under a
will." The deed provides for the disposal of the estate on the death of
beneficiary, the appellant giving 2/3rd of the estate to her male issues and
113rd to the female issues. In this behalf the recital in the deed is: that the
children as many as will be alive at the time of her death are to get the
estate according to the terms mentioned in the deed and if no child will be
living the estate is to go to her grand children according to the terms in the
deed. The direction was given that 2/3rd and 1/3rd share shall be given to the
children who will be living at the time of her death and in the event that
there is no child of a particular sex the whole estate was to go to the
children 615 of the other sex. There is also a provision about disposal of the
estate in the event the appellant has no child of her own.
The contention which Mr. G.L. Sanghi, the
learned counsel for the appellant put in the forefront was that the appellant
being a limited owner under the deed of settlement was not entitled to lease
the land and therefore respondents could not be said to be said to be lawfully
cultivating the land and therefore could not become deemed tenants under
section 4. Consequently, they could not have become deemed purchasers on the
tillers' day. As a corollary it was contended that in any event as the children
have a vested remainder in the estate the date of purchase would be postponed
as provided in section 32 of the Act, and therefore ALT could not entertain an
application under section 32 and proceed to determine the price on the footing
that the tenant has become a deemed purchaser.
Under the deed of settlement appellant
acquired a life interest and the reversion-remainder was in her children.
During her life time she was entitled to
enjoy the income of the property but she could not dispose of the property by
will, gift or sale. She was also under a disability to encumber the estate and
it was urged that lease is an encumbrance. The substantial question is whether
a limited owner of agricultural land governed by the Tenancy Act during his/her
life time was entitled to lease the land and if he or she did lease the land
whether the tenant inducted by the holder of life estate could be said to be
lawfully cultivating the land so as to acquire the status of a deemed tenant
under section 4 and as a corollary would become a deemed purchaser on the tillers'
day. Section 4 has been extracted hereinbefore. It comprehends within its sweep
any person lawfully cultivating any land belonging to another person. If land
belongs to one person and another is lawfully cultivating it, unless such
person falls under any of the excepted categories; he would acquire the status
of a deemed tenant. The excepted categories are: (a) a member of the owner's
family, or (b) a servant on wages payable in cash or kind but not in crop share
of a hired labourer cultivating the land under the personal supervision of the
owner or any member of the owner's family, or (c) a mortgagee in possession. It
would thus appear that if the land belonging to one person is being lawfully
cultivated by another person and that such other person is not a member of the
owner's family or a servant on wages payable in cash or kind but not in crop
share or a hired labourer or a mortgagee in possession then such cultivator
lawfully cultivating the land would be deemed 616 to be a tenant. The legal fiction
of clothing a lawful cultivator of land belonging to other person has widened
the traditional concept of expression 'tenant' which would normally imply
contractual relationship.
Under the deed of settlement appellant was
given a life-estate. She was the owner of the land during her life time with a
limitation that she could not will, gift or sell the property or encumber the
same. In view of these four limitations she is undoubtedly a limited owner. But
this limited owner holding the life estate has been given the right to
administer the estate after she attained majority.
Administration of the estate would normally
include leasing of the property except where a specific condition is prescribed
precluding the administrator from leasing the property. There is no such
limiting or restrictive condition prohibiting the appellant in the course of
her management from leasing the land. The appellant beneficiary being a woman,
the settlors must have thought that she may not be able to personally carry on
agricultural operations and therefore when the settlors authorised her, on
attaining majority, to administer the estate it would per se in the absence of
a limiting or restricting condition to the contrary enable her to lease the
land. Thus, if the appellant as beneficiary after attaining majority took over
the administration and as part of the administration leased the land, the
person so inducted by her on the land would be lawfully cultivating the land
belonging to the appellant and being not in any of the excepted categories
would be deemed to be a tenant. On a plain reading of the deed and the admitted
position that she had leased the land to each of the respondents and keeping in
view the requirements of section 4, the conclusion that the respondents would be
deemed tenants under section 4 of the Act is inescapable.
The view which we are taking, is borne out by
the observations of this Court in Dahyalal and Ors. v. Rasul Mohammed Ahdul
Rahim (supra). In that case the tenant was inducted on the land by a mortgagee
in possession and the contention was that as the mortgagee in possession would
not be deemed to be a tenant because he is in the excepted categories set out
in section 4, the tenant inducted by him would not acquire the status of a
deemed tenant. After analysing the provisions of the Tenancy Act, this Court
held that all persons other than those mentioned in clauses (a), (b) and (c) of
section 4 who lawfully cultivate land belonging to other persons whether or not
their authority is derived directly from the owner of the land must be deemed
tenants of the land. The execution of 617 mortgagee in possession from the
category of deemed tenant was explained on the ground of public policy in that
to confer such status upon mortgagee in possession would be to invest him with
rights inconsistent with his fiduciary character. However, the tenant inducted
by a mortgagee in possession in discharge of his liability of prudent
management cast by section 76(a) of the Transfer of Properly Act as also under
the authority derived from the mortgagor would be lawfully cultivating the
land. Accordingly the person inducted would be a deemed tenant who would be
entitled to the protection of the Act even after the mortgage is redeemed. Once
such a tenant enjoys the status of a deemed tenant and holds land in that
capacity, on the tillers' day he would become the deemed purchaser.
A contention was raised that this Court
overlooked in Dahyalal's ease a vital point that a transferor cannot confer a
better title on another than he himself possesses and that therefore in view of
section 76(a) of the Transfer of Property Act a mortgagee in possession cannot
create an interest to endure beyond redemption of mortgage to bind the
mortgagor. It was urged that if a mortgagee in possession is specifically
excluded from acquiring status of a deemed tenant, ipso facto tenant inducted
by him cannot acquire that status. The court negatived the contention. It would
be advantageous in this context to refer to Prabhu v. Ramdeo and Ors. where this
Court held that a tenant of a mortgagee in possession can invoke the benefit of
subsequent tenancy legislation which provided that such a tenant could not be
evicted except in the circumstances set out in that legislation. The mortgaged
property in that case was land used for agricultural purposes and the mortgage
was usufructory mortgage. After redemption the original mortgagor sued for
actual possession from tenant inducted by the erstwhile mortgagee alleging that
on redemption of mortgage, the tenant has to surrender possession. In the
meantime, Rajasthan Tenancy Act of 1955 had been introduced and the tenant
claimed protection against eviction under it.
This Court after referring to Mahabir Gope
and Others v. Harbans Narain Singh and others and Harihar Prasad Singh and
Another v. Must. of Manshi Nath Prasad and Others held that rights of the
tenants inducted by the mortgagee may 618 conceivably be improved by virtue of
statutory provisions which may meanwhile come into operation. Such a case would
clearly be an exception to the general rule prescribed by the Transfer of
Property Act that mortgagee in course of management cannot create an interest
which would endure beyond the redemption of mortgage.
It was next contended that in any event the
appellant having been given a life estate with the vested remainder in her
children, she had no vested interest in the property during her lifetime but
her interest would be contingent interest and therefore even during her
lifetime, the children would be the owners and as they were minors the date of
statutory purchase would be postponed under section 32 F. Looking to the terms
of the deed of settlement, subject to the limitations therein prescribed the
appellant had a vested interest with a right to take over management on
attaining majority and to deal with the property in her own way. Assuming
without deciding that she had no right to will, gift, sell or encumber the
property yet assuming she did deal with it in the manner prohibited it would
nonetheless be binding during her lifetime. The property would devolve on the
heirs named in the deed and the devolution would take place on her death.
Therefore, upon a pure literal construction of deed coupled with intendment of
the settlement it is difficult to accept Mr. Sanghi's submission that her
interest in the property during her life time was contingent interest. This
will further be borne out by the provision contained in section 13 of the
Transfer of Property Act inasmuch as she was given life or limited interest and
the remainder to her children none of whom was in existence at the time of
transfer. Even if transfer is in favour of unborn person, at the date of
transfer to be valid there has to be a prior interest created by the very
transfer. This prior interest though limited would not be contingent but vested
interest. In fact the interest of future born children would be contingent till
the death of the appellant. The deed of settlement cannot be construed as a
transfer in favour of unborn person, yet it settles property on trust and the
unborn children, under trust, may be beneficiaries but they can claim interest
only after the death of the appellant and no interest in her life time.
Under the deed of settlement an interest is
created in favour of the children of the appellant and the interest would take
effect on the happening of specified uncertain event-uncertain as to
time-namely, the death of the appellant, then till the death of the appellant
the interest of the children would be contingent. It is nothing short of spes
619 successionis. Mr. Sanghi, however, referred to Rajes Kanta Roy v. Santi
Debi and urged that by a parity of reasoning we must hold that the interest of
the appellant was a contingent interest. In that case one Ramani created an
endowment in respect of some of his properties in favour of his family deity
and appointed his three sons as shebaits.
After the death of one of his sons, widow of
the deceased son instituted a suit against other members of the family for a
declaration that she as an heir of her deceased husband, was entitled to
function as shebait, in place of her husband. The suit ended in a consent
decree recognising the right of the widow as a co-shebait. Subsequently the
settlor Ramani and his two other sons filed a suit against widow of the
pre-deceased son for a declaration that the consent decree was null and void.
During the pendency of the suit the settlor Ramani executed a registered trust
deed in respect of his entire property. The eldest son was appointed trustee to
hold property under trust subject to certain powers and obligations. The second
suit which was pending at the death of settlor Ramani ended in a consent
decree. One of the terms of the consent decree was that widow of the
predeceased son gave up her rights under the earlier consent decree by which
she obtained status of co-shebait and she was paid Rs. 475/- per month as
allowance. Complaining of a default in the payment of allowance she filed an
application for execution to realise the arrears and she sought attachment and
sale of certain properties. The eldest son filed an objection contending that
under the settlement of trust his interest in the property was contingent till
the debts are paid and as the precondition is not satisfied the contingent
interest is not attachable. Negativing this contention, it was held that the
determination of the question as to whether any interest created by trust deed
is vested or contingent has to be guided by the principles recognised under
sections 19 and 21 of the Transfer of Property Act and the Indian Succession
Act. After referring to certain English authorities and text-books by writers
it was held that the question is really one of intention to be gathered from a
comprehensive view of all the terms of a document. After examining all the
terms of the deed of trust, this Court held that even though the debts were not
discharged the appellants, namely, the sons acquired a vested interest and not
a contingent one.
Having examined the trust deed before us, we
are satisfied that the appellant had the vested interest in the property during
620 her life time and the children had only contingent intermediating that
period.
It was lastly contended that as the appellant
was prohibited from creating an encumbrance on the property, she had no right
to lease the property because in a certain way lease is also an encumbrance.
Without going into the wider question whether the expression 'encumbrance' in
the context in which it is used would comprehend lease within its fold we would
dispose of the contention on the short ground that the right to administer the
property confined on the appellant on her attaining majority inheres the right
to lease the property. If it be so, it is futile to contend that restraint on
the right to encumber would preclude her from leasing the land. The right to
manage or administer an immovable property such as agricultural land as a
prudent man, comprehends the right to lease, save where the contrary intention
is indicated. It is equally well recognised that a limited owner or a life
estate holder in agricultural land, unless a clear intention to the contrary is
expressed, would be entitled to lease the land during his or her life time.
Reading the deed of settlement as a whole, we
do not find any such contrary intention and, therefore, we must negative the
contention .
Having examined all the contentions of Mr.
Sanghi, we find no merit in any of them and therefore all these appeals fail
and are dismissed with costs. Hearing fee in one set.
V.D.K . Appeals dismissed.
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