Nathoo Lal v. Durga Prasad

Mahajan C.J.

Dr. Bakshi Tek Chand, (Rajinder Narain, with him} for the appellant.

D. M. Bhandari, (K. N. Aggarwala and R. N. Sach-they, with him) for the respondent.

1954. April 9. The . Judgment of the Court was delivered by MEHR CHAND MAHAJAN C. J.-This is an appeal from the judgment and decree of the High Court of Judica-ture of Rajasthan, dated the 5th April, 1950, modify-ing the decree of the High Court of the former Jaipur State, dated the 3rd March, 1949, on an application for review in a second appeal concerning a suit for posses-sion of propertv.

The property in dispute originally belonged to one Ramchandrn who died sonless in the year 1903. He was survived by his mother, Sheokori, his widow, Mst. Badni, and his two daughters, Bhuri and Laxmi. It is alleged that he made an oral will under which he bequeathed the property in dispute . to his daughter, Laxmi. On the 6th September, 1906, Mst. Sheokori and Mst. Badni, purporting to act in accordance . with the directions of the oral will, executed and . registered a deed of gift of the property in dispute in favour of Mst. Laxmi. The gift deed contains the following recitals :- "These houses are made a gift to you according to-the will of your father, Ramchandra ......... In this way, these houses belonging to us were purchased by your.' father Ramchandra, and he in his last days having made a gift of these houses to you, made a will to us that he· had made a gift of that house to his daughter, Laxmi, and directed us to get the gift deed registered in her name. He further said that if we or our relations, kinsmen, creditors do raise any dispute with. her he· would 'damangir hoonga' catch hold of him by his: garments. According to his aforesaid will, we have got 1954 this gift deed executed in your favour, while in best of Nathoo La.I our senses and in discharge of our sacred duty enjoyed v. by Dharma ........ No other person except .you has got any Durga Prasad. claim over the house. You deal with your house in any Mehr Chand way you like. If anybody takes back the land gifted MahajanC.J. by himself or his ancestors, he will live in hell as along as the sun and moon shines."

The scribe, it seems, did not in appropriate language express the directions ·.of the two widows: and his ideas of the legal situation were somewhat confused but there can be no manner of doubt that the two execut-ants were not conferring themselves any title which they had in the property. on Laxmi but were. merely giving effect to the oral will as executors and were put-ting the legatee in possession of the bequeathed property in this manner. That the widows had no title themselves 1s evident from the fact that Mst. Sheokori also joined 111 executing the . gift deed. Admittedly . Ramchandra's estate could not devolve on her.

Bhuri, the second daughter, died in the year 1907, while Mst. · Badni, the widow, died in the year,, 1927.

Mst. Laxmi remained in possession of the property till her death in the year 1928. After her. death Balabux, her husband, on the 5th of July, 1930, claiming as heir to her mortgaged the house in dispute to the defendant-appellant Nathoo Lal and later on the 5th of . ,October, 1933, he sold it to him and put him into possession of it and since then he is in possession.

On the 4th October, 1945, that is one day before the expiry of the period of 12 years from the date of the defendant's entry into possession of the house, the plaintiff, son of Mst. · Bhuri, sister of Mst. Laxmi, claim~ mg as an heir to her estate, filed this suit in f orma pauperis for possession of the house. He alleged that he was in possession of the house till the 24th of August;

1933, through his tenant, that after it was vacated by the tenant he locked it and went away to his native village Harmara ; and that on the 27th of September, 1944, he came to know that the house had been taken pos.,es~ion ·of by the appellant during his, absen~e ... It 1954 was contended ·by him that Balabui, had .no right-.~ither Nathoo Lal to mortgage·or sell the-house and' that.Laxmi was.pot

v. the ·absolute. owner of the .property but had_.,only a Durga Prasad. limited estate -in ·it, . and .on .her <lea.th' he was ,entitled to Mehr Chand possession of it. . ,. , , , . .. . , .- .. , " Mahajan C. J.

.. On the' 28th. o{ A\lgust; 1947,' . the 'suit· was' dismjssed by the Civil Judge, who. held that Msi. Laxmi became the absolute owner of the property; · and the' plaintiff therefore had no title .to claim possession of i.t after her death, < Balabux being her stridhan, heir. ··The learned Judge. however held that tl1e. suit was. within .. lim.itaticm On appeal, this decision -was· affirmed by the ... District Judge. He expressed the. opinion that the widow. in executing the deed , of gift was only acting as an execu-trix of the oral will .made by Ramchandra at his .death-bed and that Laxmi, -got .under. this. will an absolute estate m the . suit property. The plea of. Jimitation raised by the defendant. was negatived on the fin.ding that the plaintiff .was in possession of it within twelve years of the suit. · ., Plaintiff preferred a second appeal to the High Court of Jaipur and this time with success. The High Court held that· after the death of Laxmi the plaintiff conti-nued in possession of the house till he was· dispossessed by the defendant on the 5th of October, 1933, and that he was in . possession even durin'g her lifetime. On the mam question in the case the High Court held that though the house was bequeathed to Laxmi by Ram-chandra under an oral will, there was no proof that ·it conferred upon her an absolute interest m the property and that in the absence of any evidence indicating. that the donor intended to convey an absolute interest to her, the gift being in favour of a female. could only con-fer upon her a limited life estate and on her death re-vert to. the donor's heirs and the plaintiff being• such an heir was entitled to succeed. In the result the appeal was allowed and the plaintiff's suit was · decreed with costs throughout.

The defendant applied for· a review of· this judgment. Meanwhile the Jaipur High Court· had become ·defunct and the review was. heard by the Rajasthan High Court as successor to· the Jaipur High Court' under the ·High Courts Ordinance and was partially . allowed on the 5th Nathoo Lal of April,· 1950, and the ·decree was accordingly amend-v. ed and it was provided therein that the· plaintiff shall Durga Prasarl. not be entitled to · possession of the house except on Mehr Chand Mahajan J. payment of Rs. 4,000 to the defendant as costs of im-provements and repairs. It is· against this · judgment and decree passed after the coming into force of the Constitution of India ·that the present appeal has been preferred to this Court by leave of the Rajasthan High Court under article 133 ( 1) ( c) of the Constitution.

The learned counsel for the respondent raised a preli-mmary objection as to the maintainability of the appeal. He contended that according to the Code of Civil Procedure of the Jaipur State the decision of the Jaipur High Court had become final as no appeal lay from it and hence this appeal was incompetent. It was argued that the proceedings in the suit decided in 1945 had concluded by the decision of the High Court given in 1949, and the review judgment which modified the decree in regard to improvements, could not entitle the appellant to reopen the decision of the High Court of Jaipur given in 1949.

In our op1111on, this objection is not well foun,foi.

The only operative decree in the suit which finally and conclusively determines the rights of the parties is the decree passed on the 5th of April, 1950, by the Rajas-than High Court and that having been passed after the coming into force of the Constitution of India, the pro-visions of article 133 are attracted to it and it is appeal-able to this Court provided the requirements of that article are fulfilled. The Code of Civil Procedure of the Jaipur State could not determine the jurisdiction of this Court and has no relevancy to the maintainability of the appeal. The requirements of article 133 having been fulfilled, this appeal is clearly competent. ·

The learned counsel then contended that the High Court was in error in granting the certificate m this case. We are unable to agree. An inquiry was made into the valuation of the property and it was reported that its value was Rs. 20,000. or that the decision affected 1954 property of the. value · of . above Rs. 20,000. A .. subs-Nathoo Lal tantial questioff of law . was ·involved in the case, that

v. . 1s, whether a testamentary· • disposition by a Hindu in Durga Prasad. favour of a female .. heir conferred on her only a limit- ,Mehr Chand. ed estate in the absence of evidence that . he . intended Mahajan C. ]. to confer on her· an ·absolute interest . in the property.

In these ·circumstances the High Court .was fully justi-fied in granting ·the··· certificate. · We ourselves would have been prepared to admit this appeal under our extraordinary powers conferred by article 136(1) of the Constitution, if such ·a certificate had not been given m . the . case .. For. the reasons given above, we see no force in either of these two preliminary objections which we overrule. , Dr. Bakshi Tek Chand for the appellant contended that the. Courts below . were in error in .holding that the plaintiff's suit was within limitation. He urged . that in order to bring the suit within limitation the plaintiff in paragraph 5. of the plaint alleged that after the death of Laxmi he kept tenants in the house; realised the rent· and enjoyed it .and that the· last tenant vacated on the 24th ·August, 1933, and thereafter he went to his native place after locking the house, but that this. alle-gation had not been made good by him, and as there ~as no' evidence . that he locked the house, it should be held that plaintiff's possession discontinued with · effect froIT\ the. 24th August, 1933, and hence his suit· brought more than twelve 'years ffom that date . was not within It has 'been found by the C~urts below that the plaint-iff was in possession of this house even during the life-time of La)\mi . and c9ntinued in possession thereafter. Even if the· tenant vacated. the house on the 24th August, 1933, and the plaintiff did not lock it, his possession would be presumed . to conti111.1e till he was dispossessed by ·some one, The law presumes in favour of coptinuity of possession. 'I'he three Courts below have unanimously held that on the evidence it was established that after the . death · of· Laxmi plaintiff continued in possession of tlie house and the suit was within limitation. There are no valid grounds for reviewing this finding in the fourth Cou1t· and ihe contention is therefore negatived.

Dr. Bakshi Tek Chand next contended that Laxmi 1954 acquir.ed an absolute title in the · suit property . ··under Nathoo Lal the will of· her father and that the High· Court was in v. error in holding that unless · there were express words Durga Prasad. indica~ing that the donor who had absolute interest in Mehr Chand Mahajan J. the gifted property intended to convey an ' absolute in-terest to her, the gift in favour of an heir who would ordinarily inhedt a limited interest could riot be construed as conferring 1 an absolute interest. The learned counsel for. the respondent on the . other. hand raised two · · contentions; He urged in the first instance that it seems that .the intention of Ramchandra was to make a. gift of the suit property in favour. of Laxmi but he was unable to perfect the gift by executing a registered deed, , being on his deathbed and · in that situation the property. devolved on his widow by . inheri-tance and it only came to Laxmi under the ·widow's gift and under it she could not get a larger interest than what the widow herself possessed, . namely,. a limit-ed life est'ate, which terminated on her death. In the alternative, . it was said that there was no evidence as to the terms of the oral will and that beirig so, the' gift being in favour of. a female heir.. . the presumption in the absence of ,evidence to the contrary was that the donee got only a limited life interest in the bequeathed property.

In our judgment, there is force in the ·contention of Dr. Tek Chand and none of the contentions raised by the respondent's counsel have any validity. That Ramchandra bequeathed ·the suit · property · and did not gift it to his daughter Laxmi is a fact which cannot be questioned at this stage. It was · admitted ·by ··the plaintiff himself . in the witness box. · This is what he said:-

"Ramchandra had made a will in 'favour of Mst.

Laxmi and irr that connection my maternal grand-mother and maternal great ·grandmother got the · gift deed registered. This very gift deed was got ·executed by my maternal grandmother and materrial great grand-mother and had got it registered. Through this gift deed Mst. Laxmi held possession over it till she was alive. She had kept deponent as her son and so

58 SUPREME COlJRT REPORTS [1955]

1954 she got the rent ·notes executed ·in· my name!" 'What Nathoo Lal 1s admitted by a party to be true must be·· pre-

v. sumed· to be true unless the contrary is shown. There Durga Prasad. is no· evidence to the contrary m the case. The gift Mehr Chand deed fully supports the testimony of the plaintiff on MahaJan C. ]. this point. It definitely states that according to the

will, the gift deed was executed· in favour of Laxmi and it further recites that Laxmi was entitled to deal with the house in any manner she liked. Those who were directed to execute the oral will made by Ramchandra must be presumed to have carried out his directions m accordance· with his wishes. It seems clear that the intention of the testator was to benefit his daughter, Laxmi, and to confer upon her the same title as he him-self possessed. She was the sole object of his bounty and on the attendant circumstances of this. case it 1s plain that he intended to confer on her whatever title he himself had. Laxmi therefore became the absolute owner of the property under the terms of the oral will of her father and the plaintiff is no heir to the property which under the law devolved on Laxmi's husband who had full right to alienate it.

We are further of the opm1on that the High Court was in error in thinking that it is a settled principle of law that unless there are express terms in the deed of gift to indicate that the donor who had absolute interest intended to convey absolute ownership, a gift in favour of an heir who inherits only a limited interest cannot be construed as conferring an absolute interest. It 1s true that this was the principle once deduced from the Privy Council decision m Mahomed Shumsool v. Shewukram(') wherein it was held that a bequest to a daughter-in-law passed a limited estate. The proposi-tion laid down in Mahomed Shumsool's case was constru-ed by the High Courts in India to mean that a gift of immovable property to a woman could not be deemed to confer upon her an absolute estate of inheritance which she could alienate at her pleasure unless the deed or will gave her in express terms a heritable estate or power of alienation. Later decisions of the Judicial Committee made it clear that if words were used

S.C.R. SUPREME COURT· REPORTS 59

conferring absolute ownership upon the wife, the wife 1954 enjoyed the rights of ownership without their being con-Nathoo Lal ferred by;. express and additional terms. Shumsool' s v. case(1) has been ·examined in recent years in some High -Durga Ptasatl. Courts and it has been observed that according to the Mehr Chand law as understood at present there is . no' presumption Mahajan J. one way or the other and there is no difference between the case of a male and the case of a female, and the .fact that the donee is . a woman does not make· the gift ahy the less absolute where the words would be suffi-cient to convey an absolute estate io a male (see Nagammal v. Subbalakshmi Ammal (2). The matter has now been set at rest by the decision of this Court in Ram Gopal v. Nand Lal(3). In this case it was observed as follows :-

"It may be taken to be quite settled that there is no warrant for the proposition of law that when a grant of an immovable property is made to a Hindu female, she does not get an absolute or alienable interest in such property, unless such power is expressly conferred upon her. The reasoning adopted by Mitter J. of the Calcutta High Court in Mst. Kollani Kuar v. Luchmi Kuar(4), .which was approved of and accepted by the Judicial Committee in a number of decisions, seems to me to be unassailable. It was held by the Privy Council as early as m the case of Tagore v.

Tagore(5) that if an estate were given to a man without express words of inheritance, it would, in the absence of a conflicting context, carry, by Hindu Law, an estate of inheritance. This IS the general principle of law which is recognized and embo-died in section 8 of the Transfer of Property Act and unless it is shown that under Hindu Law a gift to a female means a limited gift or carries with it the res-trictions or disabilities similar to those that exist in a 'widow's estate,' there IS no justification for ·depart-ing from this principle. There IS certainly no such provision in Hindu Law and no text could be supplied in support of the same.

"The position, therefore, Is . that to convey an absofote (il estate to a Hindu female, no express power

2 I.A. 7· (4) 24 W.R. 395·

(2 (1947) 1 M.L.J. 64. (5) 9 Beng. L.R. 377. P.C.

(3 A.LR. 1951 S.C. 139.

5-86 S. C. India/59

1954 of alienation need be given ; it is enough if words are Nathoo Lal used of such amplitude as would convey full rights of

v. ·ownership." The learned Judges of the High Court Durga Prasad. were therefore clearly wrong in law in holding that the M<MChand will having been made by the father in favour of his Mah<ijan C. J, daughter, it should be presumed that he intended to .

give her a limited life estate.

For. the reasons given above we allow the appeal, set aside the decree of the High Court decreeing the plaint-iff's suit and restore the decree In of the trial Court dis-missing· the plaintiff's suit. the circumstances of this case we will make no order as to costs.

Appeal allowed.

CHHOTE KHAN,. DECEASED, REPRESENTED

1954

... BY HIS SON, HARMAT, AND OTHERS

April.,, v.

MAL KHAN AND OTHERS.

[Suom RANJAN DAs, . GHULAM HASAN and ·-,.

B. JAGANNADHADAS JJ.]

Wajih-Ul..arz-Entry r"egarding agreement therein-Whether holds good .after the expiry of period of Settlement.

Held, that an entry regafding agrccinent in a Wajib-ul-arz holds good during the currency of the Settlement and dOcs not survive the expiry of the period of Settlement.

Hira and Others v. Muhamadi and Others (16 P.R. · 1915 at p. 89), Allah Bakhsh and Others v. Mirza Bashir·ud-Din and Others (1932 L.T.R. 56) and Lieut. Chaudhri Chattar Singh v. Mt . -4 Shugni and Another (A.LR. 1941 L.ah. 239) referred to.

. CmL APPELLATE JUR1sDICTION : Civil Appeal No. 61 of 1951.

Appeal from the -Judgment and Decree· dated the 10th November; 1944, of the High Court of Judicature at Lahore in Civil Regular First Appeal No. 259 of 1942, arising out of the Judgment and Decree dated the 29th July; 1942, of the Court of the Extra Assist-ant Settlement Officer and · Assistant Collector ' · of · the

CIVIL APPELLATE JURISDICTION : Civil . Appeal No. 59 of 1953.

Appeal from the Judgment and Order dated the 5th April, 1950, of the High Court of Rajasthan at Jaipur in Case No. 24 of Samvat 2005 (Rei.view modi- :fying the Decree dated the 3rd March, 1949, of the High •Court of the former Jaipur State in Civil Second Appeal No. 187 of Samvat 2004 against the · Decree 195<l dated the 15th April,. 1948, of the Court of the District Nathoo Lal Judge, Jaipur City, in Civil Appeal No. 40 of Samvat

v. 2004 arising out of the decree dated the 23rd August, Durga Prasad,

1947, of the Civil Judge, Jaipur City, in Suit No. 66 of Mehr Chand Samvat 2002).