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TMI Blog2004 (4) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. - CJI.V.N. KHARE S.H. KAPADIA, JJ. JUDGMENT 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 hereinbelow. 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 maintenan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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