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TMI Blog1995 (12) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... wer 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 defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingle 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. 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 ₹ 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 ₹ 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 ₹ 50/- per month as maintenance allowance. The defendant shall not sublet the aforesaid property and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght 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 directe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty 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 Satyawat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw 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 ₹ 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 ₹ 150/- per month as maintenance instead of ₹ 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 firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )] 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itten 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 all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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