Dr.
Mahesh Chand Sharma Vs. Smt Raj Kumari Sharma & Ors [1995] INSC 774 (1 December 1995)
Jeevan
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Majmudar S.B. (J) B.P. Jeevan Reddy, J.
CITATION:
1996 AIR 869 JT 1995 (8) 466 1995 SCALE (6)809
ACT:
HEAD NOTE:
Third
defendant is the appellant. He along with defendant Nos.4 and 5 is the alienee
of the house property, which is the subject-matter of these appeals. Second
defendant is the brother of third defendant and father of Defendant is the
brother of third defendant and father of Defendant Nos.4 and 5. Defendant
Nos.2, 4 and 5 are figuring as respondents is these appeals but are supporting
the third defendant.
Plaintiff
and Defendant Nos.6 to 8 are the daughters of late Ram Nath Dewan while the
first defendant is the son of Ram Nath Dewan while the first defendant is the
son of Ram Nath Dewan. First defendant and second defendant have married
sisters. First defendant was practically settled in U.S.A. along with his family. He appointed
the second defendant as his General Power of Attorney. Acting as the General
Power of Attorney of first defendant, the second defendant executed a sale deed
in respect of No.5, Doctor's Lane, New Delhi (the house property which is the
subject- matter of these appeals, which shall be referred to hereinafter as
"Doctor's Lane") in favour of his brother (Defendant No.3) and sons
(Defendant Nos.4 and 5).
The
plaintiff, daughter of late Ram Nath is seeking to avoid the sale of the said
house property in the present suit for partition and separate possession of her
1/5th share. The other daughters, Defendant Nos.6 to 8, are tacitly supporting
the plaintiff, though they have remained ex parte. The first defendant too has
remained ex parte. He did not even file a written statement. He died pending
the suit. His legal representative, all of whom are residing in U.S.A., have also not chosen to appear in
the suits/appeals.
Thus,
the contest has been between plaintiff on one side and Defendant Nos.2 to 5 on
the other.
RELEVANT
FACTS:
---------------
Ram Nath Dewan was a self-made man. He earned substantial properties in Delhi. He married a little late in life.
His wife, Satyawati, was younger to him by atleast fifteen years, if not more.
They had a son (First defendant) and four daughters (plaintiff and Defendant
Nos.6, 7 and 8).
With a
view to provide a secure life to his wife, Ram Nath made a will on 10th day of
April, 1942 whereunder he bequeathed one of his properties, viz., No.5, Doctors
Lane, New Delhi to Satyawati for life. He provided that after Satyawati's
death, the said property shall go to his legal heirs. Ram Nath died in the year
1953.
Soon
after the death of Ram Nath, disputes arose between the mother and the son. The
son (first defendant) put forward another Will said to have been executed by
Ram Nath on September
26, 1950 superseding
the earlier Will. As many as seven suits came to be instituted between the
mother and the son. In January 1955, a settlement was arrived at between them.
Under this settlement, the mother, Satyawati, was given a right to reside in
the first floor of the Doctor's Lane house. The son was to pay her Rs.125/- per
month as maintenance allowance. If the mother did not intend to reside in the
said first floor, the son was to pay her Rs.150/- per month as maintenance allowance.
Provision was made for the marriage of the youngest daughter. It was affirmed
that No.58, Todar Mal
Road, New Delhi, is the exclusive property of the
mother but she undertook not to transfer the property in any manner whatsoever.
After her death, the wife of the first defendant was to be the owner of the
said property. Certain jewellery and other articles were also given to the
mother. A joint statement in the above terms was submitted into the Court on January 27, 1955 and the suits disposed of in terms
of the settlement on the same day.
The
first defendant, Rajender Nath, was practically settled in U.S.A. along with his family. He appointed
his co-son-in-law, Sri G.C. Sharma (second defendant) as his General Power of
Attorney in respect of his properties in India. On March 4, 1971, the second defendant executed a sale deed in respect
of the Doctor's Lane house in favour of his brother (third defendant) and his
own two sons (Defendant Nos.4 and 5). Satyawati died on July 2, 1972.
Soon
thereafter, the present suit for partition was filed in respect of all the
properties left by Ram Nath and Satyawati. The plaintiff disputed the validity
of the sale deed executed by the second defendant on more than one ground. She
asked for a declaration to that effect. She claimed a 1/5th share in all the
properties including the suit house. According to her, each of the Defendant
Nos.1 and 6 to 8 were entitled to 1/5th share.
The
plaintiff's case in brief, as set out in the plaint, is this: the Doctor's Lane
house was constructed by Ram Nath on the land obtained by him on perpetual
lease from the Secretary of State for India in Council. Ram Nath made a Will on April 10, 1942 bequeathing the said house to his wife, Satyawati, for her
life. He provided that on her death, it will devolve upon his "legal
heirs". Ram Nath and Satyawati owned certain other properties also in Delhi. All the said properties are liable
to be divided among plaintiff, Defendant No.1 and Defendant Nos.6 to 8 in equal
shares. The plaintiff is in joint possession of the said properties along with
Defendant Nos.1 and 6 to 9. Only after the death of her mother, has the
plaintiff come to know of the General Power of Attorney executed by the first
defendant in favour of the second defendant and the sale of the Doctor's Lane
house by the second defendant to Defendant Nos.3 to 5. When she demanded
partition of all the properties including the Doctor's Lane house, the first
defendant demurred. He alleged that in the year 1955, there was a settlement
between himself and Satyawati whereunder she had surrendered the Doctor's Lane
house in his favour retaining only a right of residence in the first floor. The
plaintiff does not admit the truth and validity of the said settlement. In any
event, the settlement, if any, cannot affect the rights of the daughters
(Plaintiff and Defendant Nos.6 to 8) in the said properties since they were not
parties to the said settlement. The first defendant had no right whatsoever in
the Doctor's Lane house during the life time of Satyawati. He or his Power of
Attorney holder had, therefore, no right to execute a sale deed in respect of
the said Doctor's Lane house. The Power of Attorney and the sale deed are both
illegal, invalid, fictitious, sham, collusive, void and without consideration
and are not binding upon the plaintiff and her sisters. Pending the suit, the
plaintiff asked for an amendment of the plaint seeking relief of possession of
her 1/5th share in the Doctor's Lane house.
The
amendment was allowed on December
6, 1983 with a
direction that the said amendment shall be effective only from the date of the
said order.
The
second defendant filed a written statement disputing the several averments in
the plaint insofar as they concerned him. Defendant Nos.3 to 5 filed a joint
written statement defending the alienation in their favour.
They
submitted that the Will dated April 10, 1942
was revoked by another Will dated September 26, 1950 made by Ram Nath. In any event, the
settlement arrived at between Satyawati and the first defendant on January 27, 1955 is binding upon all who claim
through Satyawati. Under the said settlement, Satyawati surrendered all her
right, title and interest (life interest) in the Doctor's Lane house in favour
of the first defendant, retaining a mere right of residence in the first floor.
The first defendant thus became the absolute owner of the Doctor's Lane house
and, therefore, the sale deed executed by his Power of Attorney is good and
valid. As a matter of fact, the Doctor's Lane property was resumed and entered
upon by the President of India. At the intervention of Defendant Nos.3 to 5,
however, a supplementary lease deed (perpetual lease) dated June 3, 1952 was executed by the President of
India in favour of Defendant Nos.3 to 5.
The
learned Single Judge of the Delhi High Court, who tried the suit, dismissed the
suit insofar as the Doctor's Lane house is concerned but decreed it insofar as
other properties are concerned. The learned Judge held that by virtue of the
settlement dated January
27, 1955, Satyawati
surrendered all her right, title and interest in the Doctor's Lane house in favour
of her son, first defendant, who was the only legal heir of Ram Nath on the
date of the said settlement. The first defendant thus became the absolute owner
of the Doctor's Lane house. Inasmuch as the first defendant has not disputed
the correctness of the sale deed executed by the second defendant in favour of
Defendant Nos.3 to 5, the sale of the Doctor's Lane house in favour of the said
defendants is good and valid.
Only
the plaintiff appealed under Clause 10 of Letters Patent against the judgment
of the learned Single Judge*.
The
Division Bench allowed the appeal on the following findings:
(1)
The Will dated April
10, 1942 made by Ram Nath
is true, valid and effective.
------------------------------------------------------------
*
The
legal representatives of the first defendant also filed an appeal, R.F.A.No. 15
of 1984 but that appeal related to some other property and hence has no
relevance herein. The said appeal was disposed of by the Division Bench on the
same day, i.e., March
25, 1984. The legal
representatives of the first defendant have not preferred any appeal to this
Court.
(2)
The Will put forward by Defendant Nos.2 to 5, said to have been executed by Ram
Nath on September 25,
1950 in favour of the
first defendant is not proved to have been executed by Ram Nath.
(3)
The interest created in Satyawati under the 1942 Will is a life estate and not
a widow's estate. While a widow's estate could be surrendered in favour of the
nearest reversioner(s), the life estate cannot be so surrendered. In any event,
since the alleged surrender under the settlement dated January 27, 1955 was not total and complete, it was
no surrender in law. As a matter of fact, the 1942 Will expressly prohibited Satyawati
from transferring the said property during her life time.
(4)
While it is true that in the year 1942 when the Will was executed, first
defendant, Rajender Nath, was the only "legal heir" of Ram nath but
the Will contemplates that the Doctor's Lane house shall devolve upon the legal
heirs of the testator on the death of Satyawati. On the date of the death of Satyawati,
not only the first defendant (the son) but the daughters also were the
"legal heirs" by virtue of the Hindu Secession Act, 1956. Each of
them is entitled to 1/5th share in the disputed house.
(5) On
the language of the 1942 Will, it is the exception to Section 111 of the Indian
Secession Act, 1925 that applies and not Section 119 or for that matter Section
120.
Since
it was a bequest to a class, the class has to be ascertained on the death of
the interposer. "To the extent of the application of exception to Section
111 of the Succession Act, it (bequest under the Will in favour of legal heirs)
was contingent".
On the
above findings, the Division Bench held that Plaintiff, first defendant and
Defendant Nos.6 to 8 are entitled to 1/5th share each in the Doctor's Lane
house.
Inasmuch
as the first defendant or his legal heirs did not question the sale deed dated
March 4, 1971, Defendant Nos.3 to 5 will be entitled only to the 1/5th interest
of the first defendant in the Doctor's Lane house. The judgment of the Division
Bench is questioned by the third defendant in these appeals who is supported,
as stated above, by Defendant Nos.2 4 and 5.
CONTENTIONS
OF THE PARTIES:
---------------------------
Sri Arun Mohan, learned counsel for the appellant, urged the following
contentions:
(i)
Even if the Will dated September
25, 1950 is held not
established and the 1942 Will is taken to be the true and effective Will, even
then the Doctor's Lane house must be held to have become the absolute property
of the first defendant under and by virtue of the settlement dated January 27, 1955. Satyawati had only a right to
reside on the first floor during her life time and no more. The plaintiff has
neither pleaded nor relied upon Section 14 of the Hindu Secession Act, 1956 nor
is it her contention that Satyawati became the absolute owner of the first
floor by virtue of Section 14. She cannot, therefore, be allowed to raise the
said plea for the first time in these appeals. As a matter of fact, the
Doctor's Lane house was resumed by the President of India in terms of the grant
and later granted on perpetual basis to Defendant Nos.3 to 5 by order dated June 3, 1952.
(ii)
In law, succession is never in abeyance. On the language of the Will, it is
Section 119 - and in particular Illustration (iii) thereto - that applies. It
means that while the life estate devolved upon Satyawati on the death of Ram Nath,
the remainder interest vested simultaneously in the first defendant, he being
the only legal heir on the date of the death of Ram Nath. The vesting of
remainder interest is not postponed till the date of death of the interposer, Satyawati.
(iii)
The Division Bench of the High Court was in error in holding that the exception
to Section 111 applies in this case. The said exception contemplates bequest to
"a class of persons described as standing in a particular degree of
kindred to a specified individual". In this case, neither the bequest is
to a class of persons nor were the persons in whose favour the bequest was made
stood in a particular degree of kindred to a specified individual. The words
"a specified individual" in the said exception do not and cannot
comprehend the testator. They refer to a person other than the testator. The
High Court was also in error in holding that Section 120 of the Indian
Succession Act is attracted. That section applies only to a bequest which is
contingent and here the bequest is certainly not contingent.
(iv)
Though Satyawati was alive for about seventeen years after the 1955 settlement,
she never questioned the said settlement. On the contrary, by her conduct, she
always affirmed the ownership of the first defendant over the Doctor's Lane
house. As a matter of fact, she was not even living in the first floor wherein
she was given a right to reside under the said settlement. In such a situation,
Section 14 of the Hindu Succession Act has no application since she was not
possessed of the said property - not even of the first floor, on the date of
the coming into force of the said Act.
(v)
The life estate holder is also entitled to surrender his/her interest in favour
of the remainder-men. The requirement of a total and complete surrender
applicable in the case of widow's estate is not applicable in the case of a
limited estate.
(vi)
The suit is barred by limitation. This suit, as originally filed, was based
upon the plea of joint possession even with respect to the Doctor's Lane house
which is admittedly untrue and untenable. The relief of possession was added by
amending the plaint only on December 6, 1983.
This date is beyond twelve years from the date of sale in favour of Defendant
Nos.3 to 5. Defendant Nos.3 to 5 have perfected their title by adverse
possession, in any event.
On the
other hand, Sri M.C. Bhandare, learned counsel for the respondent-plaintiff,
urged the following contentions while supporting the reasoning and conclusion
of the Division Bench:
(I) The
case of Defendant Nos.2 to 5 is not only unjust but is based upon fraud. The
second defendant, who is a senior advocate practicing at Delhi, took unfair
advantage of the faith reposed in him by the first respondent, his co-son-in-
law, and cheated him out of his property by executing a sale deed for a nominal
consideration in favour of his own brother and sons. Because the first
defendant was settled in America along with his family and was not
taking proper interest in his properties and affairs in India, the second defendant got an
opportunity which he made full use of for his own unjust enrichment. This
factor is relevant because these appeals are filed under Article 136 of the
Constitution of India.
(II)
The alleged family settlement arrived at on January 27, 1955 was not a voluntary one. The defenceless widow was
confronted by her own son who put forward a rival but false Will said to have
been executed by Ram Nath whereunder he sought to deprive Satyawati of all her
interest in the Doctor's Lane house under the 1942 Will. As many as seven suits
were pending. There was also an arbitration by one Chanan Ram, referred to in
the said joint statement. Under the settlement, Satyawati was deprived of her
life estate in the Doctor's Lane house and she was given a partly sum of
Rs.125/- per month along with a mere right of residence in the first floor. It
was further provided that if she did not choose to reside in the said first
floor, she would be given extra Rs.25/- per month. The entire settlement was
unjust and unfair to the widow.
(III)
That the interest created in Satyawati under the 1942 Will is a life estate and
not a widow's estate as rightly held by the Division Bench. The 1942 Will
placed an express prohibition against transfer of her interest by Satyawati.
The so-called surrender is in reality a transfer of her interest and hence
barred by the Will. Once the said settlement goes, the 1942 Will stands in its
full effect.
Satyawati
became the absolute owner of the said property by operation of law, viz., Section
14 of the Hindu Succession Act, 1956. The sale of the Doctor's Lane house by
the first defendant or his Power of Attorney holder is, therefore, of no effect
and incompetent.
(IV)
On the clear language of the Will, Section 119 of the Indian Succession Act is
not attracted. The Will clearly indicates that the devolution of interest upon
the legal heirs of the testator was to take place on the death of Satyawati. It
was a case of bequest to a class within the meaning of the exception to Section
111. Because of the said contrary intention in the Will, Section 119 is not at
all attracted. It is the exception to Section 111 that applies.
(V)
The duty of court in the case of construction of a Will is always to give
effect to the intention of the testator.
The
intention of Ram Nath is made clear beyond any doubt by the clear words used in
the Will, according to which Satyawati was to be the life estate holder and
that "after her (devise) death" the property was to go to the
"legal heirs of the testator". On the death of Satyawati (devise),
the legal heirs of the testator were the son and four daughters of Ram Nath and
it is they who succeeded to the said property in equal shares.
(VI)
Even if the plaintiff has not expressly pleaded or relied upon Section 14 of the
Hindu Succession Act, 1956 in the plaint, she is yet entitled to rely upon the
said provision. The plaintiff has made it clear at more than one place in the
plaint that she is claiming her right in the Doctor's Lane house and other suit
properties not only under her father, Ram Nath, but also under her mother, Satyawati.
In the
light of the said specific pleading, the plaintiff is entitled to rely upon
Section 14 of the Hindu Succession Act.
(VII)
The plea of limitation is wholly untenable. The plaintiff and other legal heirs
of Ram Nath succeeded to the Doctor's Lane house only on the death of Satyawati
who was the limited estate holder. During the life time of Satyawati, they had
no right to, nor were they obliged to, challenge the alienation of the Doctor's
Lane house from the date of death of Satyawati. Even the amendment of the
plaint including the relief of possession, granted on December 6, 1983 is
within a period of twelve years.
THE
1942 WILL AND THE 1955 SETTLEMENT:
--------------------------------------
For a proper appreciation of the contentions, it is necessary to set out the
1942 Will as a whole:
"DEED
OF WILL I, Mr. Ram Nath Dewan S/o Pt. Mool Raj caste Brahmin resident of No.5
Doctors Lane, New Delhi hereinafter called the testator made this Will without
any persuasion fraud and collusion in favour of my wife, Shrimati Satya Vati Dewan
daughter of Pt. Atma Ram Vedi hereinafter called the Devise.
Now
this deed witnesses as follows:
1.
That the testator bequeaths the use, enjoyment and interest of my house on part
plot No.5, in block No.88, Doctors Lane, New Delhi worth Rs.50,000/- in my said
wife, the devise during her life after his (testator) death and declares that
after her (devise) death the property will go to the legal heirs of the testator.
2.
That the said devise will continue to live in the said house according to her
sweet will and shall also have a right to give the said property on rent to any
tenants.
3.
That the said devise shall have no right to transfer the property in any way
whatsoever.
4.
That the said devise will be whole and sole manager and beneficiary of the said
property during her life and shall possess a right to make any alteration and
addition in the building accommodation in accordance of her sweet will and
desire. No legal heir of the testator shall have any right to object to that.
5.
That the devise will realise the rent of the said property if any and
appropriate and spend it on herself or anyone else in accordance of her sweet
will. No legal heir of the testator shall have any right to interfere in that.
6.
That no legal heir of the testator shall be entitled to live in the said house
without permission of the said devise during her life and said devise will have
right to eject any person living in the house at the time of the testator's
death.
7.
That the said devise shall be liable to pay the lease money (Land Rent) to the
Government either from the income derived from the house or from her own
pocket.
8.
That the repair of the house will depend upon the sweet will of the devise.
In
witnesses whereof, I, Mr. Ram Nath Dewan, the testator have put my signature to
this my Will this 10th day of April 1942 in present of the attending witnesses:
sd/-
Ram Nath Dewan We are not setting out the 1950 Will put forward by Defendant
Nos.3 to 5 inasmuch as it is held not proved by both the learned Single Judge
and the Division Bench of the High Court and no effort was made before us to
challenge the said concurrent finding. It is, however, necessary to set out the
settlement arrived at between Satyawati and the first defendant on January 27, 1955. It reads:
"Joint
statement of Shri Rajender Nath Dewan Plaintiff and Smt. Satyavati Defendant
dated 27.1.1955 recorded in Suit No.689/54 titled `Rajender Nath Dewan verses Satyavati'
decided on 27.1.1955 by Shri S.S. Kalha, SJIC Delhi.
ENGLISH
TRANSLATION
Statement
of Shri Rajender Nath Dewan plaintiff and Smt. Satyavati Defendant on Solemn
affirmation: The parties have compromised to the effect that the award of Shri Chanan
Ram Arbitrator be set aside. The defendant will reside on the Ist floor of
No.5, Doctors Lane, New Delhi. The plaintiff will pay her Rs.125/- per month as
maintenance allowances. The defendant will arrange for her food separately at
her own expense. In case the defendant does not intend to reside in the
aforesaid portion, the plaintiff will pay her Rs.150/- per month as maintenance
allowance. In case the defendant resides at the aforesaid place but takes meal
with the plaintiff then the plaintiff will pay her Rs.50/- per month as
maintenance allowance. The defendant shall not sublet the aforesaid property
and she will not keep Mayadevi (and another person whose name is illegible)
with her. Dr. Vidyavati or Shri Rishikesh or their family members also will not
reside with the defendant but they will be free to visit the defendant at the
said place. There are Postal Certificates of the value of Rs.5000/- in the name
of defendant and the deceased Dewan Ram Nath which certificates are lying in
safe custody with the Palai Central Bank, New Delhi.
The
defendant will encash these certificates at the time of the marriage of Kumari Ramakanta
Dewan and utilise the proceeds for her marriage expenses.
Before
that the defendant will not be entitled to encash these certificates nor will
she be able to remove them from the safe custody of the bank. There is also a
fixed deposit receipt of the Palai Central Bank, New Delhi in the name of
defendant for the sum of Rs.3,139/15/-. The defendant shall be the owner of
this deposit and she will be free to utilise it as per her own Will or at the
time of necessity. The family Jewellery is lying in Locker No.664, Type C with
Punjab National Bank, Tropical Building, New Delhi. The parties to the suit
will not remove the Jewellery from the Locker and this Locker will be operated
only at the time of the marriage of Km Ramakanta. After removing such part of
the jewellery as may be considered proper to be given on Ramakanta's marriage
to Ramakanta, the locker shall be re-sealed and the remaining jewellery will be
owned by the plaintiff after the death of the defendant. There is another
locker with Imperial Bank of India, New Delhi in the name of the defendant. Shri
Shyam Kishore and Shri Sukhbir Prasad Jain, Advocates accompanied by the
parties shall prepare an inventory of the articles in the locker. Those
articles which belong to Thakur ji Maharaj (God) will be handed over to the
defendant and shall be placed by her in the Temple.
Out of
the contents of the locker the Necklace, the watch and one ring, which belong
to defendant along with her papers including a fixed deposit receipt, will be
handed over to the defendant. The shares scrips and the other articles
including a watch belonging to the father of the plaintiff shall be handed over
to the plaintiff.
There
are two watches with the defendants (one gents and one ladies) which shall be
returned by the defendant to the plaintiff. In case, the plaintiff fails to pay
the above said maintenance allowance to the defendant the defendant shall be
entitled to recover that from the rents from the property in the possession of
the plaintiff over which rents she shall have a first charge. The following are
the particulars of the property:
1. 5.
Doctors Lane, New Delhi;
2.
56-58, Todar Mal Road, New Delhi;
3.
Some land in Shahdara.
The
rent of the above property shall be realised by the plaintiff. The defendant is
the owner of property No.58, Todar Mal Road, New Delhi. She shall not transfer
the property in any manner whatsoever. The right to realise rent and give the
premises on rent shall vest in Smt. Vinodni Dewan. After the death of the
defendant, Smt. Vinodni Dewan shall be the owner of the property. The above
statement of the parties may also be read as their statement in Civil Suit
Numbers 682 of 1954, 40 of 1954, 442 of 1954 and 683 of 1954, and by virtue of
this statement these Suits may be dismissed. The Plaintiff shall have the right
to withdraw all rents which have been deposited in various Courts by the
tenants. Out of this one-tenth proceeds will be paid over by the plaintiff to
the defendant. Except property No.58, Todar Mal Road, the plaintiff shall be
the owner of rest of the property.
R.O.
& A.C.
sd/- Satyavati
Dewan sd/- Sukhbir Prasad Advct sd/- R.N. Dewan sd/- Shyam Kishore Advct
27.1.1955 Sd/- SJIC ORDER: In terms of the statements of the parties the suit
is dismissed.
The
parties are left to bear their own costs. The parties shall remain bound by the
compromise and by their statements.
Order
announced.
Sd/-
S.S. Kalha SJIC Delhi 27.1.1955." In the above joint statement, plaintiff
means the first defendant herein and the defendant means Satyawati Dewan.
Smt. Vinodni
Dewan is the wife of the first defendant.) The 1942 Will - its meaning and
effect:
---------------------------------------
We shall first examine the effect of the Will executed by Ram Nath in the year
1942, the correctness or validity whereof is not in question before us. On the
date he executed the Will, he had a son and four daughters. Out of the
properties held by him, he gave one house property, viz., No.5, Doctors Lane,
New Delhi to his wife, Satyawati, for her life. He declared that during her
life time, she shall have the exclusive right to reside therein but that she
shall not be entitled to transfer it in any manner.
After
her death, he declared, the property will go to "the legal heirs of the
testator". On the date of death of Ram Nath, it is agreed by all the
parties before us, first defendant was the only "legal heir of the
testator". It is equally not in dispute before us that on the date of
death of Satyawati, the " legal heirs of the testator" are the first
defendant, the plaintiff and Defendant Nos.6 to 8 by virtue of the provisions
contained in the Hindu Succession Act, 1956.
The
first and crucial question is whether on the language of the Will and the law
governing the Wills, the vesting in "the legal heirs of the testator"
took place on the date of death of testator (as contended by the appellant) or
on the date of death of Satyawati (as contended by the appellant) or on the
date of death of Satyawati as contended by the plaintiff-respondent). In other
words, the question is whether it is Section 119 of the Indian Succession Act
that is attracted or the exception to Section 111 of the said Act. If it is
Section 119 that is attracted, the position would be that the remainder
interest did vest in the first defendant on the date of death of Ram Nath which
means that the daughters will have no right in the Doctor's Lane House. On the
other hand, if it is the exception to Section 111 that applies, the vesting
takes place on the date of death of Satyawati, which means son and four
daughters together will be "the legal heirs of the testator".
Sections 119 and 111 read as follows:
"119.
Date of vesting of legacy when payment or possession postponed.-- Where by the
terms of bequest the legatee is not entitled to immediate possession of the
thing bequeathed, a right to receive it at the proper time shall, unless a
contrary intention appears by the will, become vested in the legatee on the
testators death, and shall pass to the legatee's representatives if he dies
before that time and without having received the legacy, and in such cases the
legacy is from the testator's death said to be vested interest.
Explanation.--An
intention that a legacy to any person shall not become vested in interest in
him is not to be inferred merely from a provision whereby the payment or
possession of the thing bequeathed is postponed, or whereby a prior interest
therein is bequeathed to some other person, or whereby the income arising from
the fund bequeathed is directed to be accumulated until the time of payment
arrives, or from a provision that, if a particular event shall happen, the
legacy shall go over to another person.
Illustrations
(i) A bequeathed to B 100 rupees, to be paid to him at the death of C. On A's
death the legacy become vested in interest in B, and if he dies before C, his
representatives are entitled to the legacy.
(ii) A
bequeaths to B 100 rupees, to be paid to him upon his attaining the age of 18.
On A's death the legacy becomes vested in interest in B.
(iii)
A fund is bequeathed to A for life, and after his death to B. On the testator's
death, the legacy to B becomes vested in interest in B.
(iv) A
fund is bequeathed to A until B attains the age of 18 and then to B. The legacy
to B is vested in interest from the testator's death.
(v) A
bequeaths the whole of his property to B upon trust to pay certain debts out of
the income, and then to make over the fund to C. At A's death the gift to C
becomes vested in interest in him.
(vi) A
fund is bequeathed to A, B and C in equal shares to be paid to them on their
attaining the age of 18, respectively, with a proviso that, if all of them die
under the age of 18, the legacy shall devolve upon D. On the death of the
testator, the shares vested in interest in A,B anc C, subject to be divested in
case A,B and C shall all die under 18, and, upon the death of any of them
(except the last survivor) under the age of 18, his vested interest passes so
subject, to his representatives.
111.
Survivorship in case of bequest to described class.-- Where bequest is made
simply to a described class of persons, the thing bequeathed shall go only to
such as are alive at the testator's death.
Exception.--If
property bequeathed to a class of persons described as standing in a particular
degree of kindred to a specified individual, but their possession of it is
deferred until a time later than the death of the testator by reason of a prior
bequest, or otherwise, the property shall at that time go to such of them as
are then alive, and to the representatives of any of them who have died since
the death of the testator.
Illustrations
------------- (i) A bequeaths 1,000 rupees to `the children of B' without
saying when it is `to be distributed among them. B has died previous to the
date of the will, leaving three children C, D and E. E died after the date of
the will, but before the death of A. C and D survives A. The legacy will belong
to C and D, to the exclusion of the representatives of E.
(ii) A
lease for years of a house was bequeathed to A for his life, and after his
decease to the children of B. At the death of the testator, B had two children living,
C and D, and he never had any other child. Afterwards during the lifetime of A,
C dies, leaving E, his executor. D has survived A, D and E are jointly entitled
to so much of the leasehold term as remaining unexpired.
(iii)
A sum of money was bequeathed to a for her life, and after her decease, to the
children of B. At the death of the testator, B had two children living, C and
D, and after that event, two children, E and F, were born to B. C and E died in
the lifetime of A, C having made a will, E having made no will. A has died,
leaving D and F surviving her. The legacy is to be divided into four equal
parts, one of which is to be paid to the executor of C, one to D, one to the
administrator of E and one to F.
(iv) A
bequeaths one-third of his lands to b for his life, and after his decease to
the sisters of B. At the death of the testator, B had two sisters living, C and
D, and after that event another sister E was born. C died during the life of B,
D and E have survived B. One- third of A's lands belong to D, E and the
representatives of C, in equal shares.
(v) A
bequeaths 1,000 rupees to B for life and after his death equally among the
children of C. Up to the death of B, C had not had any child. The bequest after
the death of B is void.
(vi) A
bequeaths 1,000 rupees to `all the children born or to be born' of B to be
divided among them at the death of C.
At the
death of the testator, B has two children living D and E. After the death of
the testator, but in the lifetime of C two other children, F and G, are born to
B. After the death of C another child is born to B. The legacy belongs to D.E.F
and G, to the exclusion of the after-born child to B.
(vii)
A bequeaths a fund to the children of B, to be divided among them when the
eldest shall attain majority.
At the
testator's death, B had one child living, named C. He afterwards had two other
children named D and E. E died, but C and D were living, When C attained
majority. The fund belongs to C, D and the representatives of E, to the
exclusion of any child who may be born to B after C's attaining majority."
Let us first analyse Section 119 from the point of view of the facts of this
case and see what does it say.
According
to it, unless a contrary intention appears from the Will, a bequest made to a
legates, who is not entitled to immediate possession of bequest, gets vested in
such legatee on the date of death of the testator. The Explanation appended to
the section elucidates the words "unless a contrary intention appears by
the Will" occurring in the main limb of the section. The Explanation says
inter alia that merely because a prior interest in the bequest is given to some
other person, it does not mean that a contrary intention is indicated in the
Will. Illustration (iii) is of crucial relevance. It says that where a fund is
bequeathed to A for life and after A's death to B, the legacy to B becomes
vested in interest in B on the testator's death. If we read the principle under
lying the main limb of Section 119 along with the Explanation and Illustration
(iii), it becomes abundantly clear that the present case squarely falls within
the four corners of this section. It fits in neatly into Illustration (iii) to
Section 119. Here, the Doctor's Lane house is bequeathed to Satyawati for life
and after her death to the legal heirs of the testator. Once this is so, the
legacy to the legal heirs of the testator became vested in such legal heir(s)
on the date of death of the testator - and admittedly on that death, first
defendant was the only legal heir of the testator. We may mention that merely
because a prior interest in the bequest is given to Satyawati, it cannot be
said that the Will indicates a contrary intention within the meaning of the
main limb of Section 119. [See Chilanakuri Pullappa v. Guruka Bayanna (A.I.R.
1962 A.P. 54) and P. Somasundaram v. K. Rajammal (A.I.R. 1976 Mad.295) in this
behalf.] Now, once the bequest to "the legal heirs of the testator"
provided by the Will got vested in the first defendant on the date of the death
of the testator, there is no question of the first defendant being divested therefrom.
On the death of Satyawati, the first defendant became entitled to possession of
the Doctor's Lane house which had already vested in him.
Sri Bhandare,
learned counsel for the respondent- plaintiff, submitted repeatedly that the
above interpretation would be inconsistent with the intention of the testator
as clearly expressed in the Will. He submitted that the first and the foremost
rule of interpreting the Will is to ascertain the intention of the testator and
to give effect to it. The learned counsel submitted that according to the Will,
the Doctor's Lane houses was to devolve upon the legal heirs of the testator
only on the death of Satyawati and not at any earlier point of time. He emphasised
the words "and declares that after her (devisee's) death, the property will
go to the legal heirs of the testator" occurring in clause (i) of the
Will. It is true that that is what the testator said but then the said Will has
to be understood and construed in the light of the statutory rules governing
the Will, viz., the provisions of the Indian Succession Act, 1925. Section 119
of this Act, which applies to the Will in quest by its own force, says, to
repeat, that where a property is bequeathed to A for life and after his death
to B, the legacy to B becomes vested in interest in B on the death of the
testator. As pointed out earlier, the bequest in the Will squarely falls within
the four corners of Section 119 and in particular of Illustration (iii)
thereto. It may be remembered that Illustrations to the section are parts of the
section and help to elucidate the principle of the section.
Now,
let us examine whether the exception to Section 111 of the Indian Succession
Act is attracted herein - and not Section 119 - as contended by Sri Bhandare.
The main limb of Section 111 says that where bequest is made simply to a
described class of persons, the bequest shall devolve only upon such members of
the class as are alive on the date of the testator's death. The exception
appended to Section 111 says that if property is bequeathed to a class of
persons/described as standing in a particular degree of kindred/to a specified
individual/but their possession of it is deferred until a time later than the
death of the testator by reason of a prior bequest, or otherwise/the property
shall at that time go to such of them as are alive and to the representatives
of any of them who have died since the death of the testator. For the exception
to apply, it must first be shown that the bequest is to a class of persons.
Then it must be shown that the said class of persons is described as standing
in a particular degree of kindred to a specified individual. The third
requirement is that the possession of the bequest is deferred until a time
later than the death of the testator for one or the other reason. If the above
ingredients are satisfied then the property bequeathed devolves upon such
persons of the class as are alive on the date of death of the interposer (prior
bequest) and upon the representatives of such of those who may have died after
the death of the testator but before the death of the interposer. Now, let us
assume in these appeals that bequest is to a class of persons. The next
question is whether the said class of persons is "described as standing in
a particular degree of kindred to a specified individual"? We are of the
opinion that the words "a specified individual" cannot refer to or
mean "the testator". The very Explanation uses both the words
"testator" and " a specified individual". If the idea
behind the exception was to refer to testator, then it would not have employed
the words "a specified individual". Nothing was more simpler than
using the words "the testator" instead of the said words actually
used. This means that the words " a specified individual" refer to an
individual other than the testator. This understanding of ours is re-inforced
if we look at the several illustrations appended to the section. In each of
those illustrations, the class of persons is described as children or (or the
relatives of) a person other than the testator. None of them speaks of a class
of persons related as aforesaid to the testator. Once this is so, the exception
goes out of the picture. In the case before us, the legal heirs of testator -
assuming that they constitute a class of persons within the meaning of the
exception - are described as standing in a particular degree of kindred to the
testator - and not to "a specified individual". Indeed, there was a
good amount of controversy before us as to the meaning to the words "particular
degree of kindred". We need not, however, go into that aspect because once
we come to the conclusion that the words "a specified individual"
cannot and do not refer to the testator, the exception becomes inapplicable.
Sri Bhandare,
learned counsel for the respondent- plaintiff, put forward an alternative
argument, viz., that it is Section 120 of the Indian Succession Act that
applies.
According
to him, it is a case of a contingent bequest within the meaning of the said
section, which reads as follows:
"120.
Date of vesting when legacy contingent upon specified uncertain event.-- (1) A
legacy bequeathed in case a specified uncertain event shall happen does not
vest until that event happens.
(2) A
legacy bequeathed in case a specified uncertain event shall happen does not
vest until the happening of that event becomes impossible.
(3) In
either case, until the condition has been fulfilled, the interest of the
legatee is called contingent.
Explanation.--Where a fund is bequeathed to any
person upon his attaining a particular are, and the will also gives to him
absolutely the income to arise from the fund before he reaches that age, or
directs the income, or so much of it as may be necessary, to be supplied for
his benefit, the bequest of the fund is not contingent." [Illustrations
omitted as unnecessary] A mere reading of Section 120 would indicate that it is
not attracted in the present case. The death of Satyawati was not a specified
uncertain event. The decision of this Court in N. Krishnammal v. R. Ekambram
& Ors. (1979 (3) S.C.C. 273) is of no relevance herein. That was a clear
case of contingent bequest. In the present case, the bequest is not a
contingent one. If so, the bequest is not postponed within the meaning of
Section 120.
We
are, therefore, of the opinion that by operation of law, i.e., by virtue of
Section 119 of the Indian Succession Act, the bequest to "the legal heirs
of the testator" vested in the first defendant - he alone being the legal
heir of the testator on that date - on the date of death of Ram Nath
(testator). The vesting of bequest to "the legal heirs of the
testator" was not postponed till the death of interposer, Satyawati. The
language of clause (i) of the Will cannot be construed otherwise.
Sri Bhandare
then contended that the use of the plural "heirs" - and not the
singular "heir" - in clause (i) is indicative of the intention of the
testator that he was referring to his legal heirs as may be in existence on the
death of satyawati. In our opinion, this argument is plainly unacceptable. In
the year 1942, Ram Nath could not have foreseen the enactment of Hindu
Succession Act, 1956 or that in future his daughters would also become his
"legal heirs" by some change in law. The language of clause (i) does,
no doubt, convey the intention of the testator, viz., immediate bequest (for
life) is to Satyawati and the ultimate (absolute) bequest is to his legal heirs
after the death of Satyawati. But this clause has to be read, understood and
construed in the light of the rule contained in Section 119 of the Indian
Succession Act, as explained hereinabove - with the necessary consequence,
which too has been set out hereinabove.
For
the above reasons, we disagree with the finding of the Division Bench of the
High Court on this aspect.
THE
SETTLEMENT OF 1955 AND ITS EFFECT:
--------------------------------------
The next question is, what happened in the year 1955 when there was a
settlement between Satyawati and the first defendant and what is its effect? As
mentioned hereinbefore, soon after the death of Ram Nath in the year 1953,
disputes arose between Satyawati and the first defendant. As many as seven
suits were filed by one against the other. The first defendant had put forward
a rival Will, said to have been executed by Ram Nath in the year 1950, whereunder
the Doctor's Lane house was given to the first defendant. It appears that
pending the said suits, there was a reference to arbitration and an award was
also rendered by the Arbitrator, one Sri Chanan Ram. Obviously, the award did
not put an end to the disputes between the mother and the son.
Only
later and evidently at the intercession of certain mutual well-wishers, the
parties arrived at a settlement whereunder the said award was declared
ineffective and a different arrangement arrived at. Under this settlement, the
first defendant (described as `plaintiff') was declared to be the owner of all
the properties left by Ram Nath including Doctor's Lane house - except No.58, Todar Mal Road, New Delhi. At the same time, Satyawati was given the right of
residence in the first floor of the Doctor's Lane house along with case
maintenance of Rs.125/- per month. It was stipulated that if she resides in the
said portion, the first defendant shall pay her only a monthly maintenance of
Rs.125/-. But if she did not intend to reside in the said portion, the first
defendant was to pay her Rs.150/- per month. Thus, on the plain language of the
settlement, the Doctor's Lane house became the property of the first defendant
subject to the right of residence given to Satyawati in the first floor
thereof. Sri Bhandare, learned counsel for the respondent-plaintiff, contended
that inasmuch as the interest given to Satyawati under the 1942 Will was a life
estate and not a widow's estate - with which proposition we agree - and because
the Will prohibited her from transferring the said property, the said
settlement is incompetent and void since it amounts to a transfer. We are not
prepared to agree. One must look at the situation obtaining in the year 1955
and not to the situation obtaining, or findings recorded, in the present
proceedings.
Seven
suits were pending between mother and the son. The validity of 1942 Will was in
dispute because the son (first defendant) was relying on another Will of Ram Nath,
said to have been executed in the year 1950, superseding the 1942 Will. No Court had pronounced till then as to
which Will was the last Will and testament of Ram Nath. In other words, the
right given to Satyawati under the 1942 Will was itself in dispute in those
suits. In such a situation, a compromise, a settlement was arrived at between
the parties, whereunder Satyawati acknowledged and accepted the first
defendant's title to the Doctor's Lane house in lieu of right of residence in
the first floor and case maintenance of Rs.125/- per month. The settlement does
not say which of the said two Wills is true and valid. The settlement was de
hors the claims and contentions of both the parties including their claims and
contentions under the respective Wills espoused by them. (It is only is this
suit that it has been held by the learned Trial Judge that the 1942 Will is the
last Will of Ram Nath inasmuch as Defendant Nos.2 to 5 have failed to establish
the truth and correctness of the 1950 Will put forward by their first defendant
in the said earlier suits and by them in the present suit. The finding of the
learned Single Judge on the issue was not challenged by Defendant Nos.3 to 5 in
the appeal.) It may be remembered that under the 1942 Will Satyawati was not
entitled to any maintenance amount from the first defendant. The said monthly
maintenance was provided to her, payable by the first defendant, under and as
part of the said settlement.
We
are, therefore unable to agree with Sri Bhandare that the said settlement
amounts to a transfer or that it is incompetent and ineffective for being
inconsistent with the terms of the 1942 Will.
For
the same reasons, The contention that a surrender by a widow must be total and
complete is wholly beside the point. Neither the interest given to Satyawati
was a widow's estate (as rightly found by the Division Bench) nor was it a case
of surrender. It was a compromise, a settlement, of conflicting claims.
THE
RELEVANCE AND EFFECT OF THE HINDU SUCCESSION ACT, 1956:
-----------------------------------------------------------
Now, we come to the third important event, viz., the enforcement of the Hindu
Succession Act and its effect. The Act came into force in June, 1956. By
operation of Section 14 of the said Act, the right of residence given to Satyawati
in the first floor of the Doctor's Lane house ripened into an absolute title
inasmuch as the said right was given to her in recognition of a pre-existing
right to maintenance inhering in her. Even under the Hindu Law obtaining prior
to the enforcement of Hindu Adoptions and Maintenance Act, 1956, the son was
under a personal obligation to maintain his mother and he was bound to maintain
her whether or not he inherited property from his father. [See Para 548 of Mulla's Hindu Law at P.552 (16th Edn.)].
Under the settlement, Satyawati was given not only the right of residence in
the first floor but also a sum of Rs.125/- per month in cash towards her
maintenance. It was further provided under the settlement that if Satyawati did
not intend to reside in the aforesaid portion, the first defendant shall pay
her Rs.150/- per month as maintenance instead of Rs.125/- per month. This
clearly indicates that the right of residence was given to her in lieu of and
in recognition of her pre-existing right to maintenance. Once this is so, it is
sub-section (1) of Section 14 that applies and not sub-section (2) vide V. Tulasamma
v. V. Sesha Reddi (1977 (3) S.C.C. 99). It has recently been held by a Bench of
this Court (S.P. Bharucha, J. and one of us, S.B. Majmudar, J.) in Mangat Mal v.
Punni Devi (1995 (6) S.C.C.
88)
that a right of residence given for life to a female Hindu in a property plus a
sum of money in lieu of her right to maintenance ripens into full ownership on
the coming into force of the Act. Accordingly, it must be held that on the date
of coming into force of the Hindu Succession Act, 1956, Satyawati became the
absolute owner of the first floor of the Doctor's lane house property.
Sri Arun
Mohan, learned counsel for the appellant-third defendant, submitted that
inasmuch as the plaintiff has not invoked or relied upon Section 14 of the
Hindu Succession Act and also because no reference to the said provision is
found in the judgment of the learned Single Judge or the Division Bench, she
should not now be allowed to invoke the said provision for the first time in
these appeals. Learned counsel submitted that neither in the plaint nor at any
time during the arguments in the Courts below was this contention urged by the
plaintiff. Counsel also submitted that had the plaintiff raised this contention
in the plaint, the defendant-appellant would have had an opportunity of
establishing that Section 14 has no application for the reason that she was not
"possessed" of the said first floor on the date of coming into force
of the Act. Counsel submitted that Satyawati was never living in the first
floor; she was either living with the first defendant or with other relatives.
We have given our anxious consideration to the said submission but are unable
to agree with it. In the plaint, it is repeatedly stated that the plaintiff is
claiming the suit property both through Ram Nath and Satyawati. It is true that
there is no specific reference to Section 14 of the Hindu Succession Act but we
are of the opinion, having regard to the law applicable to pleadings (Order 6
Rule 2 of the Civil Procedure Code) and the decisions of this Court in that
behalf - [See Kedar Lal Seal & Anr. v. Hari Lal Seal (A.I.R. 1952 S.C. 47)]
that it would not be just and proper not to give effect to the said highly
salutary provision on the above ground which, in the facts and circumstances of
the case, is a mere technicality.
Section
14 operates on its own force once the facts requisite for attracting its
application are established. It must be remembered that the settlement between Satyawati
and the first defendant was arrived at on January 27, 1955 whereas the Hindu
Succession Act came into force in June, 1956, i.e., within less than seventeen
months. Moreover, we are concerned with right to possession and not physical possession.
It has been repeatedly held by this Court [See the several decisions referred
to under the heading "possessed - meaning of" in Mulla's Hindu Law
(Sixteenth Edition at Page 810)] while construing the expression
"possessed" in Section 14(1) that the said expression means and
refers to a right to possession and not necessarily actual or physical
possession. So long as she has a right to possession, the mere fact that the
female Hindu was not in physical possession matters very little. Therefore, it
is immaterial whether Satyawati was physically occupying the said first floor
or not. So long as she had the right to possession over the said first floor,
Section 14(1) is attracted. There has never been any suggestion by Defendant
Nos.2 to 5 that Satyawati had given up the said right.
On the
contrary, Exh. D-28 (a former statement of Satyawati in a suit), filed and
relied upon by the appellant, shows that Satyawati herself was holding a
General Power of Attorney from the first defendant (executed in 1960 and in
1964) and was managing all his properties in India. This is also the testimony
of the plaintiff in this suit. She has deposed (Page 47 of Vol. II Paper Book)
that till three months before her death, Satyawati was residing in the said
house along with a maid servant and her son. Nothing worthwhile has been
brought out in her cross-examination to doubt this statement of hers. We accept
her statement. The facts established herein do clearly attract Section 14 of
the Hindu Succession Act. The ends of justice demand that the said provision is
given effect to. The plea of lack of opportunity is at best a technical one, in
the particulars facts and circumstances of the case. We are, therefore, not
inclined to accept Sri Arun Mohan's plea that Section 14(1) should not be
allowed to be invoked by the respondent in these appeals.
We may
pause here and append a note of explanation. It is true that under the 1942
Will, the bequest to Satyawati was only for her life and the bequest to
"the legal heirs of the testator', i.e., to the first defendant, vested in
him on the death of the testator, as held by us and for the reasons assigned
hereinbefore. But all this is subject to the statutory provisions contained in
Section 14(1) of the Hindu Succession Act. This statutory provision supersedes
the recitals in the Will. By virtue of Section 14(1) of the said Act, the
limited estate of Satyawati (given to her under the 1942 Will) would have
ripened into absolute estate if Satyawati had been "possessed" of the
entire Doctor's Lane house on the date of commencement of the Hindu Succession
Act. But she was not. She had given up her possession and right to possession
over the First floor under the 1955 Settlement. She was "possessed"
of only the first floor of the house. Secondly, and more important, first
defendant is basing his title to the Doctor's Lane house on the 1955
settlement. As stated hereinabove, both Satyawati and the first defendant
arrived at a particular settlement notwithstanding their respective claims and
contentions. Satyawati never challenged the said settlement during her
life-time. The settlement cannot, therefore, be held to be involuntary or
inoperative. Satyawati, in fact, acted for a number of years as the General
Power of Attorney of her son, the first defendant, and managing his properties
in India. Merely because in these
proceeding, the 1942 Will is held to be the last and valid Will of Ram Nath,
the settlement of 1955 cannot be ignored or brushed aside. It is also nobody's
case that the settlement was not bonafide or that it was not acted upon. For
these reasons, it must be, and is,s held that Satyawati became the absolute
owner only of the first floor of the Doctor's Lane house - and not of the whole
house.
THE
PLEA OF LIMITATION:
-----------------------
The sale of the Doctor's Lane house in favour of Defendant Nos.3,4 and 5 is
dated March 4, 1971. The sale deed was executed by the
second defendant acting as the General Power of Attorney of the first
defendant. The sale deed pertains to the entire house property, viz., No.5, Doctors Lane, New Delhi. On the date of sale, Satyawati was alive. She died on July 2, 1972. On the death of Satyawati, her
interest devolved upon her four daughters (plaintiff and Defendant Nos.6 to 8)
and the son (first defendant) under Section 15 of the Hindu Succession Act. The
present suit was instituted soon after the death of Satyawati. The plaintiff
claimed partition and separate possession of her 1/5th share in all the
properties including the Doctor's Lane house. The suit was originally filed on
the basis of plaintiff being in joint possession along with other heirs of Ram Nath
and Satyawati of all the suit properties including Doctor's Lane house. Later,
however, the plaintiff applied for amendment of plaint adding the relief of
possession insofar as the Doctor's Lane house is concerned. The amendment was
granted on December 6,
1983 with a direction
that the said amendment shall be effective only from the date of the said
order.
The
plea of limitation raised by the defendant- appellant cannot be upheld for more
than one reason. The reasons are the following:
(a)
Among the issues framed in the suit, Issue No.5 pertains to the plea of
limitation put forward by Defendant Nos.2 to 5. The issue runs thus:
"Whether the suit is within time?" On this issue, the learned Single
Judge (Trial Judge) recorded a finding in favour of the plaintiff. He found the
suit within limitation. The decision on the above issue was not contested by
the parties before the Division Bench. The Division Bench has expressly
recorded that "the decisions on the above issues (Issues 1, 2, 3, 4, 5,
and 6) are not contested by the parties in this appeal and, therefore, the
findings of the learned Single Judge are hereby affirmed".
Once
this is so, it is not open to the third defendant- appellant in these appeals
to seek to re-agitate the said plea. We cannot allow him to do so. A party who
abandons a particular plea at a particular stage cannot be allowed to
re-agitate in appeal.
(b)
The plea of limitation raised in Para
(8) of the defendant's written statement was in the following words:
"8.
It is denied that the suit of the plaintiff is within limitation. The answering
defendants and the predecessor-in- interest, Rajender Nath, have been in any
case in adverse possession of the property in suit since 1954". It is on
the basis of the said plea that Issue No.5 aforementioned was framed. Now, let
us examine what does the said plea signify? The plea has to be understood in
the context of other pleas raised in their written statements. The defendant's
case was that the 1942 Will is not true and that after the death of Ram Nath,
first defendant came into possession of all the properties including the
Doctor's Lane house and was in adverse possession thereof since 1954. The plea
of limitation was not based upon any other ground or fact. Once it is held that
(a) the 1942 Will is true, and (b) the remainder bequest vested in the first
defendant on the death of Ram Nath (as held by us hereinabove accepting the
plea of the appellant), the bottom gets knocked out of this plea. It is also
necessary to point out that there is no plea in the written statement that the
adverse possession of the first defendant commenced under and by virtue of the
1955 settlement. There is also no plea that the adverse possession of the
defendant commenced at any later point of time. It is well settled that the
plea of adverse possession is not a pure question of law but a mixed question
of fact and law. It is also well established that the party pleading adverse
possession must state with sufficient clarity as to when his adverse possession
commenced and the nature of its possession. In this case, the defendant's plea
is that the adverse possession of the predecessor-in-interest, i.e., the first defendant,
commenced in 1954. Once that plea falls to ground, as held hereinabove, there
is no alternate plea. To repeat, the defendants have not suggested that their
adverse possession commenced at any later point of time.
Sri Arun
Mohan, learned counsel for the appellant, sought to contend that the adverse
possession of Defendant Nos.3 to 5 commenced under the 1955 settlement and in
any event with effect from the date of sale in their favour. In the first
instance, this was not the plea in the written statement and, therefore, we
cannot allow the learned counsel to raise such a plea for the first time in
these appeals, more particularly in view of the fact that Defendant Nos.3 to 5
did not contest the finding of the learned Single Judge on Issue No.5 as aforementioned.
Event otherwise, we are of the opinion that there is no substance in this
contention. So far as the 1955 settlement is concerned, there can be no
question of adverse possession by the first defendant commencing thereunder or
from its date.
Under
the said settlement, the first defendant was declared to be the owner of the
Doctor's Lane house and Satyawati was given the right of residence in the first
floor thereof.
Once
the first defendant is declared to be the owner of the said property, there is
no question of adverse possession by him. Yet another circumstance: Satyawati
became the absolute owner of the first floor by virtue of the operation of
Section 14 of the Hindu Succession Act, as held by us hereinabove. There is no
plea by the defendants that at any point of time after the commencement of the
Hindu Succession Act, the first defendant dispossessed Satyawati and was in
possession of the first floor also.
Now,
coming to the submission of Sri Arun Mohan that the adverse possession
commenced on the date of sale in their favour, viz., March 6, 1971, this again is not the plea of the
defendants. In any event, the sale deed does not expressly recite that
possession of the house was delivered by the first defendant to the purchasers
at the time of execution of sale deed.* Further, plaintiff has stated in her
deposition (See Page 47 of the Paper Book - Vol.II) that till three months
before her death, Satyawati was living in the house along with a maid servant
and her son. Nothing worthwhile has been brought out in her cross-examination
to doubt her testimony on this aspect. We accept her statement.
If so,
the suit will be within twelve years, even assuming that the suit is deemed to
have been filed on December
6, 1983, i.e., the
date on which plaint was amended incorporating the relief of possession.
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*Clause (3) of the sale deed, which is the clause touching upon the possession
of the property sold, reads: "The Vendor hereby convenants with the
Vendees that the said premises shall be quietly entered into and upon and hold
and enjoyed and the rents and profits received therefrom by the Vendees without
any interruption or disturbance by the Vendor or any person claiming though or
under him and, without any lawful disturbance or interruption by and other
persons whomsoever." Clause (7) [which is wrongly numbered as clause (4)]
entitles the vendees to recover the rents due from the tenants. At an earlier
stage, the sale deed recites that "a portion of the property" had
been leased out to Defendant Nos.4 and 5 on a rent of Rs.300/-p.m. But for
these recitals, there is no recital relevant to delivery of possession.
[Satyawati
died on July 2, 1972.] In this behalf, we may mention
that the learned Trial Judge had framed additional issues (See Page 46 of Vol.I
Paper Book) with respect to the validity and legality of this sale deed.
There
is yet another way of looking at this issue.
We
have found hereinabove that the first defendant became full owner of Doctor's
Lane house on the death of Ram Nath and that pursuant to the 1955 settlement
read with Section 14 of the Hindu Succession Act. Satyawati became full owner
of the first floor of the house which means that both of them remained as
independent owners of ground and first floors of the house respectively.
Thereafter, when the entire house was sold to Defendant Nos.3 to 5 on March 4,
1971, their possession assuming for the sake of argument that they came into
possession of the house on the date of sale - can be treated to be adverse to Satyawati.
however, the plaintiff who is found to be co-owner of the first floor along
with the first defendant (who passed his interest in favour of Defendant Nos.3
to 5) filed the present suit within twelve years of the date of the sale deed.
She had already joined Defendant Nos.3 to 5 as parties to the suit and had
brought in challenge the right of these defendants to occupy the house by
virtue of the sale deed in their favour. The suit was filed for the relief of
partition of the co-ownership property on the basis of joint possession.
So far
as the first floor is concerned, it is covered by the main relief in the suit
which was prayed for within twelve years from the date of the sale deed.
Consequently, the suit cannot be treated as time barred for the said relief of
partition which is being confirmed by us.
In
this connection, we may emphasise that a person pleading adverse possession has
no equities in his favour.
Since
he is trying to defeat the rights of the true owner, it is for him to clearly
plead and establish all the facts necessary to establish his adverse
possession. For all the above reasons, the plea of limitation put forward by
the appellant, or by Defendant Nos.2 to 5 as the case may, be is rejected.
So far
as the plea of resumption of the plot (Doctor's Lane house) by the President of
India and its re-grant to Defendant Nos.3 to 5 is concerned, it is of little
consequence. The re-grant, if any, was in recognition and in continuation of
earlier grant. We have not been shown the documents relevant in this behalf nor
any serious argument addressed on this score.
The
result of the above discussion is that the sale deed executed by the second
defendant as the General Power of Attorney of the first defendant in favour of
Defendant Nos.3 to 5 must be held to be valid and effective insofar as the
ground floor of the house property comprised in No.5, Doctors Lane, New Delhi is concerned. (This is so because the first defendant or
his legal representatives have not chosen to question or impugn the said sale.)
So far as the first floor of the said Doctor's Lane house is concerned, it
became the absolute property of Satyawati on the coming into force of the Hindu
Succession Act, 1956, i.e., by operation of Section 14(1) of the said Act. On
her death, the said first floor devolved upon her son (first defendant) and
four daughters (plaintiff and Defendant Nos.6 to 8) in equal shares under
Section 15 of the Hindu Succession Act.
Defendant
Nos.3 to 5 will be entitled only to the 1/5th share of the first defendant in
the first floor. The remaining 4/5th share in the first floor is allotted to
plaintiff and Defendant Nos.6 to 8, each 1/5th. The decree passed by the
Division Bench of the Delhi High Court is modified accordingly and is
restricted to the first floor of the house property comprised in No.5, Doctors Lane, New Delhi. All other directions given by the Division Bench in
respect of the Doctor's Lane house are affirmed but restricted to the first
floor thereof.
The
appeals are allowed in part accordingly. No order as to costs.
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