Bhura Vs.
Kashi Ram [1994] INSC 3 (5
January 1994)
Anand,
A.S. (J) Anand, A.S. (J) Sahai, R.M. (J)
CITATION:
1994 AIR 1202 1994 SCR (1) 16 1994 SCC (2) 111 JT 1994 (1) 11 1994 SCALE (1)17
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by DR. ANAND, J. This appeal by special
leave is directed against the judgment and decree of the High Court of Madhya
Pradesh dated August 22,1980 made in First Appeal No. 233 of
1977 settling aside the judgment and decree of the trial court and decreeing
the suit of the plaintiff/respondent.
2.The
only controversy between the parties which was contested both before the trial
court and the High Court was whether the will, Ex. P-4 conferred only a limited
estate or an absolute estate on Sarjabai insofar as the suit- property is
concerned. The learned District Judge held that the estate which was bequeathed
by Pancham to defendant 1, Sarjabai gave her an absolute right thereto and
consequently except on the question of adoption, the suit filed by the
plaintiff-respondent was dismissed with costs.
Brief
Facts:
3. Tula
Ram was the common ancestor of the parties. He had a son by name Pancham, who
died on August 6, 1926.
Pancham
had 3 wives by name Smt Punji, Smt Kaushalya and Smt Sarupa. Sarjabai,
defendant I was the daughter of Smt Punji, while Gopi Chand alias Korat was
adopted as a son by Smt Kaushalya and Pancham. Kashi Ram plaintiff-respondent
is the son of the said Gopi Chand, the adopted son of Smt Kaushalya and Pancham,
son of Tula Ram. According to the pleadings of the parties, Pancham executed a
will on May 16, 1907 in favour of Sarjabai, whereby he
bequeathed certain sir lands and a house to her. Gopi Chand died leaving behind
Kashi Ram as his son. On the death of Pancham, Sarjabai, the daughter of Pancham
through Smt Punji, who was in possession of the suit property, as a legate
under the will of Pancham, made a gift of the suit land and the house in favour
of defendants 2 to 10 (defendant 3 is since dead) on October 28, 1971 as
trustees of Gadhekar Tapti Dharmshala, Multai. The plaintiff-respondent
thereupon filed a suit claiming that the will dated May 16, 1907 (Ex. P-4) created only a life interest in favour of Sarjabai
in the property bequeathed thereunder and, therefore, the transfer made by her
through the gift deed dated October 28, 1971 was not binding on him beyond the
lifetime of Sarjabai and that he was entitled to be put in possession of that
property, after her death, as an exclusive owner of the said property. The defence
of defendants 2 to 9 on the other hand was that the will (Ex. P-4) conferred an
absolute estate on Sarjabai and therefore she was competent to alienate the
suit property absolutely and the transfer by sale in their favour was valid.
The trial court found in favour of defendants 2 to 9 and dismissed the suit.
The defendants filed an appeal and at that stage, with the permission of the
court, amended their written statements in the High Court and raised an
additional plea that the suit land being sir had vested in the State on the coming
into force of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals,
Alienated Lands) Act, 1950 (hereinafter the Abolition Act) and, that malik-makbuza
rights had been conferred on her by virtue of Section 38 of the Act since she
had been in possession of the suit property on the date of the Abolition Act,
and therefore the grant in her favour which was independent of the will
conferred an absolute heritable and transferable title in her.
114
4.That
the lands in question were sir in nature and were in the possession of Sarjabai
at the time of the coming into force of the Abolition Act, and that Gopi Chand
was the duly adopted son of Pancham and Kaushalya were not disputed before the
High Court. It is in the background of these admitted facts that the
controversy as noticed in the earlier part of this judgment is required to be
resolved by us as that alone is the question in issue in the case.
5.
Learned counsel for the respondent has produced before us a translated version
of the will (Ex. P-4), the correctness of which has not been doubted by the
opposite side. It is the construction of the will which will determine the
controversy as raised before the courts below and agitated before us.
6. In
the will (Ex. P-4) (Annexure 111), Pancham Patel after narrating the
description of the property and stating that he was executing the will so that
no dispute arises between his adopted son and daughter, Sarjabai after his
death, went on to record:
"It
is, therefore, established that there should not arise any dispute between my
adopted son and daughter Sarjabai, after my death, for this purpose, I execute
this will, as I am writing below, according to it, they would be entitled to
get property, if my daughter Sarjabai bears a child, he would be the heir of
the same given property, in case, my daughter bears no child, Gopi Chand of my
family or his sons to be born, would be entitled to get this property or
whosoever would be his heir. If during my lifetime, a child is born by any of
my wives and he lives till last, the real son would be the owner of 12 anna
share of the entire property, leaving the property given to Sarjabai and
adopted son Gopi Chand who would be the owner of the 4 anna share and if a
child is not born to me then Gopi Chand my adopted son in such circumstances
would be the owner of the 16 anna property." (emphasis ours) We have
perused the entire will and we find that even though it is not happily worded
it does bring out his intention.
It is
settled law that the courts must make all efforts to determine the real
intention of the testator by reading the will as a whole and giving effect to
the intentions of the testator. Construction, which would advance the intention
of the testator has to be preferred and as far as possible effect is required
to be given to every disposition contained in the will, unless the law prevents
such effect being given to it. The recitals in the will (Ex. P-4) go to show
that the testator wanted to provide his daughter, Sarjabai interest in the
estate but at the same time intended that the property should ultimately be
retained in his family for which purpose, he had soon to take Gopi Chand in
adoption and was also hopeful of begetting a natural son through one of his
wives. This also becomes evident from the fact that the testator, as a last
resort, even intended his brother Nanak Ram to inherit the property after the
death of his wives, in the event of his natural born son or the adopted son
dying issueless. The bequeath in favour of Sarjabai (as extracted above)
clearly speaks of the 115 testator's intention of only creating a life interest
in her and nothing more and the various expressions used therein are indicative
of and are reconcilable only with the hypothesis that the testator was creating
an estate in favour of Sarjabai only for her lifetime and not an absolute
estate. We, therefore, agree with the High Court that under the will Sarjabai
did not get more than a lifetime estate because the language of the will is
inconsistent with her having got an absolute right over the land.
7.The
limited estate conferred upon Sarjabai by the will (WP-4) could not even be
enlarged into an absolute estate under the Hindu Succession Act, 1956, even
though she was possessed of that property at the time of the coming into force
of the Hindu Succession Act, 1956. Section 14(2) of the Act mandates that
nothing contained in sub-section (1) of Section 14 of the Hindu Succession Act,
1956 shall apply to any property acquired by way of gift or under a will or by
any other instrument prescribing a restricted right in such property.
In
view of our finding that the will (Ex. P-4) itself prescribed a restricted
right of life-estate in the property in favour of Sarjabai, that estate could
not be enlarged into an absolute estate in view of the express provisions of
the Hindu Succession Act, 1956.
8.The
High Court also dealt with and considered the contention raised for the first
time before it by the appellant that the conferral of malikmakbuza rights under
Section 38 of the Abolition Act upon Sarjabal amounted to a fresh and
independent rant to her of the suit land. After referring to various provisions
of the Abolition Act, the High Court came to the conclusion, on the facts of
this case, that notwithstanding the above provisions, factually Sarjabai had
continued to retain possession of the sir land (land in the suit) not under any
fresh grant under the provisions of the Abolition Act but since she was already
in possession of the said land as a limited owner, under the will (Ex. P-4). We
are in complete agreement with the reasoning of the High Court on this aspect
and need not dwell on it any further.
9. On
a true construction of the will, (Ex. P-4), and in the established facts and
circumstances of the case, we are satisfied that the High Court was right in
holding that Sarjabai had only a limited estate in the suit land and,
therefore, the alienations made by her in favour of defendants 2 to 9, were not
binding on the appellant, after the death of Sarjabai. The possession of Sarjabai,
at the time of the coming into force of the Abolition Act, being only on the
basis of the will (Ex. P-4), the High Court rightly set aside the judgment and
decree of the trial court and directed that since Sarjabai had died that had
brought to an end her limited rights, and therefore the transferees,
Respondents, 2 to 9, should put the plaintiff-appellant in possession of the
suit land. We uphold the finding of the High Court. There is, no merit in this
appeal which is accordingly dismissed but with no order as to costs.
116
STATE OF MAHARASHTRA
AND OTHERS V. UTTAMRAO RAYALA NIKAM ORDER 1.This SLP was filed against an order of the Maharashtra
Administrative Tribunal at Nasik dated October 1, 1992. The order stopping crossing of
efficiency bar to reach his scale of pay Rs 2800 4000 was quashed. The Tribunal
found that the respondent reached the efficiency bar on October 1, 1982. Earlier he was compulsorily
retired but by order of the court he remained in service. Under the rules made
by the Government, the process should be made well in advance and record should
be considered and a positive order should be made by the competent authority to
pass an order stopping giving the increment due to the efficiency bar. Till
September 1984, no order has been passed by the competent authority. The
Reporting Officer in 1984 found the record of the respondent satisfactory and
also recommended for his promotion. Yet the Supervisory Officer appears to have
recorded that he cannot be promoted. On that basis, he passed an order on
September 14, 1984 stopping the efficiency bar by which time he had already
passed three years which he would have been entitled to in the From the
Judgment and Order dated October 1, 1992 of the High Court of Maharashtra
Administrative Tribnal in O.A. No. 913 of 1991 117 normal course. Rules also
postulate that every year they should consider and repeat the exercise. The
reason is obvious. The officer due to efforts would improve his efficiency of
service to earn his increments. So stoppage of increment is not an all-time and
permanent stagnant block for the rest of the career. So wholesome procedure of
yearly meticulous exercise of duty was envisaged under the rules but flagrantly
violated and for inexplicable reasons the exercise was not done. Therefore, the
Tribunal has rightly pointed out that stopping of crossing the efficiency bar
is arbitrary and we hold it unjust and unfair. Yet the petitioner has chosen
with no responsibility in filing the SLP in this Court with no ghost of a
chance of success.
Therefore,
the SLP was filed needlessly and irresponsibly.
Accordingly,
the SLP is dismissed with the exemplary cost of Rs 5000. This amount should be
deducted from the personal pay of the officer/officers who has/have recommended
to file this SLP. The Chief Secretary, Maharashtra Government is directed to
deduct this amount from the personal pay of the officer/officers concerned and
send it to the account of the Supreme Court Legal Aid Committee. The Registry
is directed to communicate this order to the Supreme Court Legal Aid Committee
which would correspond with the Chief Secretary for collection of the amount.
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