Commissioner,
Jalandhar Division & Others Vs. Mohan Krishan Abrol & Another [2004] Insc
217 (2 April 2004)
Cji.
V.N. Khare & S.H. Kapadia.
WITH CIVIL
APPEAL No.1265 OF 1999.
Mohan Krishan
Abrol Versus State of Punjab KAPADIA, J.
Both
the above civil appeals raise common question of law and fact and, therefore,
they are disposed of by this common judgment. For the sake of convenience,
facts in Civil Appeal No.1257 of 1999 are mentioned here in below.
Late Sardarni
Chanan Kaur widow of Sardar Triloki Nath Singh (deceased) was the owner of a kothi
and lands admeasuring 90 kanals bearing khasra No.4971 situated at Circular
Road, Kapurthala (hereinafter referred to for the sake of brevity as "the
said property"). It is not in dispute that late Sardarni Chanan Kaur was
the owner of the said property and that she had executed a registered will on
15.9.1962, whereby she bequeathed the said property to the State Government
through Randhir Jagjit Hospital, Kapurthala (hereinafter referred
to for short as "the said Hospital). The bequeath in respect of the said
property was made vide paragraph 2 of the will which is reproduced herein
below: "I bequeath my bungalow situated at Circular Road, Kapurthala,
known as kothi "S. Tirloki Nath Singh" to Randhir Jagjit Hospital, Kapurthala,
absolutely and for ever for the use of as a ward of the Hospital patients as
and this estate should not be used or utilized for any other purpose than
described above. Area of the property is 90 kanals, Khewat No.1/180, Khasra
No.4971, consists of 4 servant quarters, 2 garages, 2 kothries, langarkhana
with verandah, 2 kothries, one dalan, 2 kothries, maweshikhana, 6 kothries, 2 dalans,
pacca well with iron persion well fitted, garden orchard, cultivated lands
surmounted by on North, Government landed property south road, East Garden Diwan
Ahudhya Dass
West,
landed property will not be sold or mortgaged or disposed off in any other way.
This property will remain in the name of my late husband S. Triloki Nath Singh,
for the maintenance and improvement of this institution. The income derived
from this garden, landed properties etc. should be used on the up-keep and
maintenance and improvement." In the will aforestated, the testatrix
appointed three executors. On the basis of the above will, mutation no.3597 was
made on 20.4.1970 in favour of the said Hospital. On 15.6.1977, the said
Hospital moved an application before the Collector, Kapurthala under sections 4
and 5 of Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973
(hereinafter referred to as "the 1973 Act") for eviction of Mohan Krishan
Abrol, respondent no.1 herein, who was alleged to be an unauthorized occupant
of the said property. In the meantime, the said respondent instituted a title
suit on 2.11.1977 stating that the testatrix had executed a registered lease
deed dated 7.6.1962 in his favour and he was the lessee in continuous
possession and after the demise of the testatrix on 26.11.1962, he was a tenant
in law and under her legal representatives. In the said suit, respondent no.1
alleged that the state government has no connection with the property in
dispute as the will was not probated and had not been acted upon. In the said
suit, respondent no.1 herein sought a declaration that the state government was
not the owner of the said property. He also challenged the genuiness of the
above will and prayed for perpetual injunction against the government from
taking possession of the said property under the provisions of the 1973 Act.
In the
said suit, the government submitted that the proceedings for eviction of
respondent no.1 from the property were pending before the competent authority
under the 1973 Act and, therefore, the suit was barred under sections 10 and
15. It was also pleaded that respondent no.1 herein had no locus standi to
challenge its title as the said respondent was a lessee under the lease which
stood expired on 7.6.1972.
At
this stage, it may be noted that on 25.10.1978, the competent authority found
that the property had vested in the said Hospital; that the said property was a
public premises under the 1973 Act; that the ownership of the property stood
transferred to the Hospital under the will of Smt. Chanan Kaur; that the first
respondent herein was a lessee under lease dated 7.6.1962; that the lease was
for 10 years; and on expiry of the lease on 7.6.1972, respondent no.1 was a
trespasser. The competent authority further found that the lease was not
renewed. Accordingly, the impugned order of eviction was passed by the
competent authority against respondent no.1 declaring him to be unauthorized
occupant of the premises. Being aggrieved by the order of eviction, respondent
no.1 preferred appeal to the Commissioner under section 9 of the 1973 Act. By
judgment and order dated 8.5.1984, the appeal was dismissed.
During
this period, the title suit instituted by respondent no.1 being suit no.124 of
1977 came to be decreed on 15.1.1979 by Senior Sub Judge, Kapurthala who took
the view that respondent no.1 was a lessee and he was entitled to maintain the
said suit. The trial Court further held that on the death of testatrix on
26.11.1962, the said property vested in the executors and not in the State and,
therefore, the proceedings under the 1973 Act were not maintainable. Being
aggrieved, the government preferred Civil Appeal No.29 of 1979 before the lower
appellate court which found that respondent no.1 had no locus standi to bring
the title suit; that the State was a beneficiary under the will and on the
death of the testatrix, the said property had vested in the State as a legatee
to which respondent no.1 cannot raise any objection as he had no right to
challenge the title of the legatee under the will.
The
lower appellate Court further found that the executors of the will had never
objected to the vesting of the property in the State and the executors never
came forward with any objection to such vesting even after the demise of the
testatrix and, therefore, by their conduct, the executors had assented to the
perfection of the title in the State. It was held that as between respondent
no.1 herein and the appellant, no question of title was involved and the only
question was whether respondent no.1 was in authorized possession of the
property as claimed by him and since no question of title was involved, the
Civil Court had no jurisdiction to decree the suit. Accordingly, the lower
appellate Court dismissed the suit filed by respondent no.1 on 26.4.1983.
Aggrieved
by the order of eviction passed under the 1973 Act and by the dismissal of the
suit by the lower appellate Court, respondent no.1 herein approached the High
Court by Civil Writ Petition No.2959 of 1984 and by Regular Second Appeal
No.1263 of 1983 respectively.
Both
the proceedings were tagged together and by common impugned judgment, the High
Court came to the conclusion that the said property did not vest in the said
Hospital in terms of the clause 2 of the will under which the property vested
in the executors who were required to maintain a ward in the above hospital
from the income arising out of the garden and other landed properties of the
testatrix. The High Court further found that the said Hospital was only a
beneficiary under clause 2 of the will and since under section 211 of the
Indian Succession Act, 1925 (hereinafter referred to as "the 1925 Act),
the property had vested in the executors, the eviction proceedings under the
1973 Act were not maintainable. However, in view of section 15 of the 1973 Act,
the High Court held that the suit filed by respondent no.1 was not maintainable
and consequently, the High Court dismissed the second appeal preferred by
respondent no.1 herein while it allowed Civil Writ Petition No.2959 of 1984
filed by respondent no.1 and accordingly set aside the order of eviction passed
under the 1973 Act.
Aggrieved,
both sides have come by way of civil appeals to this Court.
Mr.
H.M. Singh, learned counsel for the appellant submitted that the only question
which arises for determination is whether the said property vested in the
executors on the death of the testatrix and not as to whether the executors
were required to obtain a probate. In this connection it was urged that under
section 211, the property vests in the executors by virtue of the will and not
by virtue of the probate. On the demise of the testatrix, the property vested
in the executors. According to the learned advocate, the word 'vesting' in
section 211 was only for the purposes of representation and it did not refer to
vesting of beneficial interest in the property in the executors. Learned counsel
submitted that under the will, the said property was bequeathed to the
hospital. It was the desire of the testatrix that the said property shall be
used as a ward in the hospital in the name of her late husband. While
interpreting the will, it was urged, that the Court must sit in the armchair of
the testatrix and the said will has to be interpreted in the light of her
desire expressed therein. It was urged that the High Court had erred in holding
that the ownership of the demised premises did not vest in the said Hospital;
that the said Hospital was only a beneficiary under the will and, therefore,
the said demised property did not constitute public premises under section 2(e)
of the 1973 Act. It was urged that a bare reading of clause 2 of the will shows
that the said property was bequeathed absolutely in favour of the said Hospital
so that a ward could be set up in that hospital in the name of the deceased
husband of the testatrix. It was next contended that even assuming for the sake
of argument that the above finding of the High Court was correct, learned
counsel submitted that the words "public premises" used in section
2(e) of the 1973 Act have been defined to mean inter alia as the premises
belonging to the State Government. It was urged that the words 'belonging to'
should be read in the widest possible sense and if so read they would include
beneficial interest in the property in favour of the State Government and
consequently, the property in dispute would fall in the category of public
premises under the 1973 Act. Learned advocate for the appellant next urged that
on 7.6.1962, the deceased Smt. Chanan Kaur had let out the said property on
lease to respondent No.1 herein for ten years and the lease expired on
7.6.1972; that there was no renewal of the said lease and, therefore,
respondent No.1 was in wrongful and illegal use and occupation of the said
property, in the nature of unauthorized occupation after 7.6.1972, and,
therefore, the eviction proceedings were maintainable under the 1973 Act. It was
urged that the High Court was right in dismissing the suit filed by respondent
No.1 in view of section 15 of the 1973 Act.
Per
contra, Shri Ranjit Kumar, learned senior counsel appearing on behalf of
respondent No. 1 submitted that clause 2 of the said will refers to bequest in favour
of the said Hospital only for the specific use of the property as a ward and,
therefore, the said Hospital was only a beneficiary under the will and not the
owner and, therefore, the eviction proceedings under the 1973 Act were not
maintainable. It was contended that a bare perusal of clause 2 of the will
shows that a limited right in the property was bequeathed to the hospital. In
this connection, it was further contended that the last sentence of clause 2 of
the will indicates that the said property was to be maintained out of the
income from the landed property of the testatrix, which circumstance shows that
the hospital was only a beneficiary. It was urged that mutation of the property
in the name of the appellant in the revenue records did not confer title on it.
Alternatively, it was submitted that the matter refers to complicated questions
of title and, therefore, the matter was not triable under the provisions of the
1973 Act. Learned counsel for respondent No.1 next contended that in the
present case the lease was executed on 7.6.1962 by the constituted Attorney of Smt.
Chanan Kaur (testatrix) for ten years and under the lease respondent No.1 could
make constructions, and pursuant thereto, respondent No.1 had constructed a
factory. Under clause 8, it was urged that the right of renewal was given to
respondent No.1. In this connection, it was urged that correspondence had taken
place in 1972 between the parties and by letter dated 22nd May 1972, respondent No.1 had sought renewal
of the lease. It was contended that request for renewal was made both to the
executors as well as to the appellant to which neither replied. It was
submitted that in any event, clause 8 provided for automatic renewal and,
therefore, there was no need to make an application for renewal. In the
circumstances, it was urged that respondent no.1 cannot be said to be in
unauthorized occupation of the property. It was contended that respondent No. 1
had leasehold rights in the property prior to the will and even prior to the
demise of the testatrix and consequently, the suit filed by respondent No.1 in
the civil court was maintainable and the lower appellate court had erred in
holding that respondent No.1 had no locus standi to challenge the title of the
State.
It was
submitted that the said property was subject to lease executed before the will
coupled with automatic renewal and, therefore, the possession of the property
on expiry of the lease cannot be termed as unauthorized under the 1973 Act. In
the circumstances, the High Court was right in coming to the conclusion that
respondent No.1 cannot be said to be in unauthorized occupation of the
premises.
Lastly,
it was urged on behalf of respondent No.1 that under section 211 of the 1925
Act, the will which is not probated cannot confer title on the legatee. He
submitted that in the present case, the executors had applied for probate which
was refused. It was urged that under section 211 read with section 213 of the
1925 Act, the said property had vested in the executors and not in the State
and in the absence of probate/letters of administration, the State had no right
to administer the estate of the deceased testatrix, including right of action
under the 1973 Act.
The
first point which arises for determination is whether the said Hospital was
the owner or the beneficiary in terms of clause 2 of the will? Clause 2 of the
will unequivocally states that the testatrix bequeaths her bungalow to the said
Hospital absolutely and forever. The very first sentence of clause 2 indicates
that a complete bequest was made in favour of the said Hospital which was to
operate for all times in future. Further clause 2 stipulates that the property
was to be used as a ward of the hospital and for no other purpose. Section 87
of the 1925 Act stipulates that intention of the testator shall be effectuated
as far as possible. In the matter of interpretation of wills, the Court has to
look at the wishes of the testator indicated therein. In the present case, the
testatrix wanted her bungalow to be bequeathed for all times to the government
hospital and she wanted it to be used as a ward of the hospital to be named
after her late husband. She further directed that the income derived from the
surrounding garden and her landed properties should be used for maintenance and
improvement so that in future the continuity of the said ward in the hospital
is not adversely affected for want of funds. In our view, the High Court erred
in holding that the said Hospital was a beneficiary and not the owner. In the
circumstances, the said property constituted public premises under section 2(e)
of the 1973 Act. It was however urged on behalf of respondent No. 1 that the
said property did not vest in the appellant; that under section 211 of the 1925
Act, it had vested in the executors who had applied for probate but which was
refused by the testamentary court, and, therefore, the said property never
vested in the appellant. We do not find any merit in this argument. Sections
211 and 213 of 1925 Act read as follows: "Section 211.Character and
property of executor or administration as such.
(1)
The executor or administrator, as the case may be, of a deceased person is his
legal representative for all purposes, and all the property of the deceased
person vests in him as such.
(2)
When the deceased was a Hindu, Muhammadan, Buddhist, Sikh, Jaina or Parsi or an
exempted person, nothing herein contained shall vest in an executor or
administrator any property of the deceased person which would otherwise have
passed by survivorship to some other person.
Section
213. Right as executor or legatee when established.
(1) No
right as executor or legatee can be established in any Court of Justice, unless
a Court of competent jurisdiction in India has granted probate of the Will
under which the right is claimed, or has granted letters of administration with
the Will or with a copy of an authenticated copy of the Will annexed.
(2)
This section shall not apply in the case of Wills made by Mohammadans or Indian
Christians and shall only apply
(i) in
the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills
are of the classes specified in clauses (a) and (b) of section 57; and
(ii)
in the case of Wills made by any Parsi dying, after the commencement of the
Indian Succession (Amendment) Act, 1962 (16 of 1962) where such Wills are made
within the local limits of the ordinary original civil jurisdiction of the High
Courts at Calcutta, Madras and Bombay, and where such Wills are made outside
those limits, in so far as they relate to immovable property situated within
those limits."
A bare
reading of section 211 shows that the property vests in the executors by virtue
of the will and not by virtue of the probate. Will gives property to the
executor; the grant of probate is only a method by which the law provides for
establishing the will. In the case of Kulwanta Bewa v. Karamchand reported in
[AIR 1938 Calcutta 714] it has been held that section 211 provides that the
estate of the deceased vests in the executor; that the vesting is not of the
beneficial interest in the property; but only for the purposes of
representation. In the case of Meyappa Chetty v. Supramanian Chetty reported in
[43 Indian Appeals 113], the Privy Council has held that an executor derives
his title from the will and not from probate. The personal property of the
testator (including right of action) vests in the executor(s) on the death of
the testator. For purposes of deciding this matter, section 336 of the Act is
also relevant as it provides for assent of the executor to the legacy after the
death of the testator. It provides that an executor gets divested of his
interest as an executor from the death of the testator when he assents to a
specific legacy. Section 213 acts as a bar to the establishment of rights under
the will by an executor or a legatee unless probate or letters of
administration have been obtained. This bar comes into play only when a right
as an executor or a legatee under will is sought to be established. However an
un-probated will can be admitted in evidence for collateral purposes in any
other proceedings apart from a probate proceedings. (See: Cherichi v. Ittianam
reported in [AIR 2001 Kerala 184]).
Therefore,
on the demise of the testatrix, the said property vested in the executors. The
question which arises for determination on the facts of this case is whether
the executors assented to the vesting of the said property in the Hospital in
terms of section 336 of the 1925 Act. In this case, the facts show that the
executors never objected to the vesting of the said property in the hospital.
Three executors were appointed under the will. They never objected to the
legacy. Several meetings of the executors had taken place both before the death
of the testatrix on 26th
November 1962 and even
thereafter for updating the accounts and to obtain probate and at no stage they
objected to the vesting of the property in the Hospital. Although application
for probate was made, the State was not a party respondent. In fact, mutation
was made in favour of the hospital as far back as 2nd April 1970 to which the executors never objected. In the
circumstances, the executors had assented to the legacy in favour of the
Hospital. Looking to the terms of clause 2 of the will, we hold that the
hospital was not a beneficiary, but a full owner of the property; that on the
demise of the testatrix the property vested in the executors who assented by
their conduct to the legacy of the demised premises in the hospital and
consequently, the eviction proceedings were maintainable under the 1973 Act.
The
only question, therefore, which remains to be decided is whether the competent
authority was right in coming to the conclusion that respondent No.1 was in
unauthorized occupation of the property as defined under section 3(b) and,
therefore, liable to be evicted under section 5 of the 1973 Act? As stated
above, during the lifetime of Smt. Chanan Kaur, a lease was executed in favour
of respondent No.1 on 7.6.1962 for ten years. Clause 8 provides for renewal and
not for extension of lease. Hence, respondent no.1 was required to apply for
renewal which he never did. The so- called application dated 22.5.1972 for
renewal merely states that there was a lease deed dated 7.6.1962 and on its
expiry, the lessee would continue. In this case, the intention of the testatrix
under the will was to bequeath her bungalow to the hospital absolutely and free
of all encumbrances and for all times. She wanted her bungalow to be used as a
ward in the government hospital. In the circumstances, we are of the view that
on expiry of the lease, respondent No.1 was in wrongful and illegal use and
occupation of the property in the nature of unauthorized occupation and,
therefore, the competent authority was right in passing the impugned order of
eviction under the 1973 Act.
Before
concluding we may point out that during the pendency of proceedings before this
Court, an intervention application was made on behalf of Smt. Reba Kapur
(respondent no.2). That application was granted by the earlier order passed by
this Court. Shri Rajiv Sharma, learned counsel submitted on behalf of
respondent No.2 (intervener) that if the appellant herein succeeds, it may
proceed against respondent No.2 under the 1973 Act. He contended that the
property in question surrounding the bungalow is quite substantial, a portion
whereof is in possession of respondent No.2. We do not wish to go into the
arguments advanced on behalf of respondent No.2 as eviction order, if any,
against respondent No.2 is not the subject matter of challenge before us. It is
not even clear as to whether any such proceedings have been taken against
respondent No.2. In the present case, we are only concerned with the order of
eviction passed against respondent No.1 by the competent authority under the
1973 Act. Hence, we are confining our judgment to the facts of this case.
For
the aforestated reasons, we hold that the High Court was right in dismissing
Regular Second Appeal No.1263 of 1983 filed by respondent No.1. However, it had
erred in allowing Civil Writ Petition No.2959 of 1984 filed by respondent no.1
and in setting aside the order of eviction under the 1973 Act. We accordingly
set aside judgment under challenge and allow Civil Appeal No.1257 of 1999 filed
by the State Government and dismiss Civil Appeal No.1265 of 1999 filed by
respondent No.1. There shall be no order as to costs.
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