2004 (4) TMI 658 - SC - Indian Laws

Ownership and Beneficiary Status of the Property - Validity of Eviction Proceedings under the 1973 Act - Unauthorized Occupation and Lease Renewal - HELD THAT - 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. 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 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. As stated, 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. 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. Thus, 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.

Issues Involved:
1. Ownership and Beneficiary Status of the Property
2. Validity of Eviction Proceedings under the 1973 Act
3. Unauthorized Occupation and Lease Renewal

Summary:

1. Ownership and Beneficiary Status of the Property:
The primary issue was whether the said Hospital was the owner or merely a beneficiary of the property as per clause 2 of the will. The Supreme Court held that the will unequivocally bequeathed the property to the Hospital "absolutely and forever," indicating full ownership. The Court emphasized that the intention of the testatrix was to bequeath her bungalow to the Hospital for use as a ward, and the income from the surrounding garden and landed properties was to be used for maintenance and improvement. The Court found that the High Court erred in holding that the Hospital was only a beneficiary. Consequently, the property constituted public premises u/s 2(e) of the 1973 Act.

2. Validity of Eviction Proceedings under the 1973 Act:
The Court examined whether the eviction proceedings under the 1973 Act were maintainable. It was argued that the property vested in the executors and not in the State, as the will was not probated. However, the Court clarified that u/s 211 of the Indian Succession Act, 1925, the property vests in the executors by virtue of the will, not by probate. The executors had assented to the legacy in favor of the Hospital, making it the full owner. Therefore, the eviction proceedings were valid and maintainable under the 1973 Act.

3. Unauthorized Occupation and Lease Renewal:
The Court addressed whether respondent No.1 was in unauthorized occupation of the property. The lease executed on 7.6.1962 for ten years had expired on 7.6.1972, and there was no renewal. The Court noted that clause 8 of the lease provided for renewal, not extension, requiring an application for renewal, which respondent No.1 failed to make. The Court found that respondent No.1 was in wrongful and illegal use and occupation of the property post-lease expiry, thus constituting unauthorized occupation. Consequently, the competent authority was justified in passing the eviction order under the 1973 Act.

Conclusion:
The Supreme Court upheld the dismissal of Regular Second Appeal No.1263 of 1983 by the High Court but set aside the High Court's decision allowing Civil Writ Petition No.2959 of 1984. The Court allowed Civil Appeal No.1257 of 1999 filed by the State Government and dismissed Civil Appeal No.1265 of 1999 filed by respondent No.1, with no order as to costs.

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