Skip to content


Lalji Maitra Vs. Shyam Behari Mehra and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal Nos. 342 and 350 of 1969
Judge
Reported inAIR1979All379
ActsHindu Law; Evidence Act, 1872 - Sections 115; Hindu Succession Act, 1956 - Sections 14(1) and 14(2)
AppellantLalji Maitra
RespondentShyam Behari Mehra and ors.
Appellant AdvocateJ.N. Chandra and ;Faujdar Rai, Advs.
Respondent AdvocateA.N. Bhargava, ;Sripat Narain Singh, ;V.N. Agrawal, ;B.B.P. Singh, ;R.R. Agarwal and ;Dindayal, Advs.
DispositionAppeals dismissed
Excerpt:
(i) family - release deed - hindu law - no stipulation by parties to family deed to forgo claims in respect of shares allotted to other executants - real meaning of document is intention at time of making document - estoppel does not arise as no contract entered into - appellant not misled by executants. (ii) surrender by widow - hindu law - persons not considered as immediate reversioners as property alleged to have devolved upon them through widow - surrender by widow does not amount to alienation - it accelerates devolution through succession - persons are immediate reversioners as property devolves upon them as in succession. (iii) estate conferred on widow - section 14 clauses (1) and (2) of hindu succession act, 1956 - family arrangement removed all antecedent right - fresh rights.....s.j. hyder, j.1. these connected appeals are directed against the judgment and decree of the additional civil judge, azamgarh, dated 22nd of aug. 1969 passed in original suit no. 6 of 1964. in order to appreciate the facts of the case, it is necessary to give the following pedigree which is not disputed by the parties:-- debi dayal ______________________________|______________________________ | | mahadeo prasad athwaria = smt. bhagwanta baldeo prasad athwaria (died 1909) kunwar (died 1911) smt. basata | (died 1944) | kunwar (died | | 22.7.61) | | __________|______________________ __________________|_____________________ | | | | | tulsa kunwar ram dev durga dev bisheshwar prasad ishri prasad = purushottam (died harichand | | das childless) | | | _____|_________ _____________|.....
Judgment:

S.J. Hyder, J.

1. These connected appeals are directed against the judgment and decree of the Additional Civil Judge, Azamgarh, dated 22nd of Aug. 1969 passed in Original Suit No. 6 of 1964. In order to appreciate the facts of the case, it is necessary to give the following pedigree which is not disputed by the parties:--

DEBI DAYAL

______________________________|______________________________

| |

Mahadeo Prasad Athwaria = Smt. Bhagwanta Baldeo Prasad Athwaria

(died 1909) Kunwar (died 1911)

Smt. Basata | (died 1944) |

Kunwar (died | |

22.7.61) | |

__________|______________________ __________________|_____________________

| | | | |

Tulsa Kunwar Ram Dev Durga Dev Bisheshwar Prasad Ishri Prasad

= Purushottam (died Harichand | |

Das Childless) | | |

_____|_________ _____________| ___________|_______________________________________ |_______

| | | | | | | | |

Mukund Mathura Radhey Sita Ram Jamuna Din Dayal Ram Kishan Kanhaiya Jwala

Lal Das Shyam =Vimla Pd. Das Lal Prasad

=Basant Devi |

Devi | Narbada

| |______________________________ |

| | |____________

_____________________ |________ | | |

| | | _________________________|___________ Naoneet Mukund

Shanti Shakuntla Shashikal | | | |

Devi Devi Ghanshyam Das Chaturbhuj Munni Chunni Nirmala

Das

The family of Baldeo Prasad Athwaria and Mahadeo Prasad Athwaria was a joint Hindu family and was possessed of considerable property. On 16th of May, 1890, Baldeo Prasad Athwaria received a sum of Rs. 1,00,000/- from his brother Mahadeo Prasad Athwaria and on receiving the said amount relinquished all his claims in the joint family property possessed by himself and his brother. The relations between the two brothers, however, remained strained and Baldeo Prasad Athwaria filed a suit for cancellation of the document of 16th May, 1890, which effected partition between the two brothers. He was unsuccessful up to the High Court. After the said partition Mahadeo Prasad acquired considerable cash and property by his personal efforts and died on 3rd of June, 1909, as a separated Hindu possessed of great deal of property. He left no male issue at the time of his death. His only heirs were his two widows Smt. Bhagwanta Kunwar and Smt. Basanta Kunwar who only acquired a Hindu widow's estate in the assets of the deceased Mahadeo Prasad. Baldeo Prasad Athwaria also died in 1911. Smt. Bhagwanta Kunwar had no issue. Two daughters were born to Smt. Basanta Kunwar from Mahadeo Prasad and they were Smt. Tulsa Kunwar and Smt. Durga Dei, wife of Hari Chand.

2. The two widows of Mahadeo Prasad came under the influence of Lala Bisheshwar Prasad, son of Baldeo Prasad who looked after them after the demise of their husband. On 31st May, 1924, a document was executed by Smt. Bhagwanta Kunwar and Smt. Basanta Kunwar by which 7 annas of the entire property left by Mahadeo Prasad was given by them to Jamuna Prasad son of Lala Bisheshwar Prasad and the remaining 9 annas sharp was retained by the two widows, Smt. Durga Dei, daughter of Smt. Basanta Kunwar felt herself aggrieved by transfer made by the widows of Mahadeo Prasad in favour of Jamuna Prasad by means of documents dated 31st May, 1924. She accordingly filed a suit, inter alia, for cancellation of the said document which was decreed, Jamuna Prasad and the two widows of Mahadeo Prasad preferred first Appeal No. 32 of 1927 against the decree of the trial court in the said suit. The said appeal was dismissed by this court by its judgment dated 15th of June, 1931. Jamuna Prasad and the widows of Mahadeo Prasad then filed an application for leave to appeal to the Privy Council which was allowed. They deposited the security and other expenses for the prosecution of the said appeal within the time prescribed by law and the Privy Council Appeal was numbered as Civil Appeal No. 25 of 1931.

3. Smt. Durga Dei, however, died on 6-4-1932 leaving behind two sons Radhey Shyam and Sita Ram as her heirs. A compromise was then arrived at between all the heirs of Mahadeo Prasad and Baldeo Prasad on April 21, 1932. The compromise was recorded by this court by its order dated 3rd of Jan. 1933. These facts have not been disputed at the bar.

4. The main controversy between the parties in these First Appeals is with regard to the interpretation and validity of the compromise dated April 21, 1932. We shall deal with the relevant provisions of compromise at the appropriate stage later in this judgment. It will be in the fiftness of things now to state the facts giving rise to these first appeals.

5. The dispute between the parties relates to one-half share in the Delite Cinema and its appurtenances situate at Mohalla Chowk in the city of Azamgarh. It is again admitted between the parities that the cinema building and its appurtenances had been let out by Smt. Basanta Kunwar, Lala Mukund Lal and Lala Mathura Das to two persons, namely, Shyam Behari Mehra and Nathu Ram Sharma who were the original plaintiffs to the suit out of which these appeals arise. The rent of the cinema building and its appurtenances agreed between the lessors named above and Shyam Behari Mehra and Nathu Ram Sharma was a sum of Rs. 1,000/- per mensem. Out of this amount, Rs. 500/-per mensem was payable separately to Smt. Basanta Kunwar and the balance of Rs. 500/- to Mukund Lal and Mathura Das, A dispute arose with regard to the share of rent payable to Smt. Basanta Kunwar who died on July 22, 1961, The other widow of Lala Mahadeo Prasad, namely, Smt. Bhagwanta Kunwar, had predeceased Basanata Kunwar. The death of Bhagwanta Kunwar occurred some time in 1944. Lalji Maitra who was the original appellant in Civil Appeal No. 342 of 1969 was the real brother of Smt. Basanta Kunwar. He claimed that he was the only heir of Smt. Basanta Kunwar and was entitled to the whole of the rent payable to her, Mukund Lal and Mathura Das, sons of Tulsa Kunwar, also claimed a share out of the rent which was originally payable to Smt. Basanta Kunwar. Similar claims were raised by Smt. Basanta Dei, wife of Radhey Shyam, Ghanshyam Das and Chaturbhuj Das, son of Sita Ram, and Shakuntala Devi, daughter of Radhey Shyam. The sons of Bisheshwar Prasad and Ishwari Prasad also stated that the said rent was payable to them. Faced with these rival claims, the tenants Shyam Behari Mehra and Nathuram Sharma filed the suit giving rise to these first appeals under Order 35 of the C.P.C. They impleaded the various claimants who were the heirs of Mahadeo Prasad and Baldeo Prasad and Lalji Maitra, brother of Smt. Basanta Kunwar as defendants in the suit. In response to the notice issued to the respondents five sets of claims were filed before the trial court. As already stated tha first claimant was Lalji Maitra who claimed that the entire rent was payable to him. Another claim was filed on behalf of the heirs of Ishwari Prasad and Bisheshwar Prasad sons of Baldeo Prasad. The third set of claimants were Ghanshyam Das, Chaturbhuj Das and Radhey Shyam. The last named person died during the pendency of the suit and his widow and daughters were substituted on the record as his heirs, Shankuntala Devi, one of the daughters of Radhey Shyam, filed a separate claim. The fifth claim was filed by Mukund Lal and Mathura Das. Mukund Lal died during the pendency of the suit and his heirs were brought on the record.

6. At the first hearing of the suit, the trial court passed an order discharging the original plaintiff Shyam Behari Mehra and Nathu Ram Sharma from all liabilities to the defendants and dismissed them from the suit. After substituting Jamuna Prasad, Dau Dayal and others as plaintiffs the court, proceeded with the trial,

7. In the statement of claim filed on behalf of Jamuna Prasad and others, it was, inter alia, pleaded that Basanta Kunwar and Bhagwanta Kunwar, widows of Mahadeo Prasad Athwaria, caused their civil death by surrendering the widows' estate inherited by them on the death of their husband by executing the compromise dated April 21, 1932. It was alleged that after the execution of the said document, the said ladies had no rights left in the estates of Mahadeo Prasad Athwaria. They were maintained with honour as they were the lady members of the family. They had no concern with the realisation of the income of five annas share of the property allotted to the share of the heirs of Baldeo Prasad Athwaria. It was further stated that the cinema building had been constructed to the extent of one-half by the heirs of Baldeo Prasad Athwaria and that the tenants of the cinema building, namely, Shyam Behari Mehra and Nathu Ram Sharma were their tentants to the extent of one-half. They claimed that rent of one-half of the building was payable by the tenants to the heirs of Baldeo Prasad Athwaria. The bar of Sections 115 and 116 of the Evidence Act was also pleaded.

8. In his pleading, Lalji Maitra appellant in First appeal No. 342 of 1969, stated that Smt. Basanta Kunwar had contributed to the extent of one-half in the construction of the cinema building from her own funds, she was realising the rent from the tenants during her lifetime and after her death, he was entitled to the whole of the said rent as the only heir of the deceased Basanta Kunwar. He further pleaded that neither the nearer reversioners of the deceased Mahadeo Prasad, namely, the descendant of his daughters Durga Dei and Tulsa Kunwar nor the remoter reversioners, namely, the heirs of Baldeo Prasad had any right or interest in the half share of the cinema building. It may be stated that Lalji Maitra did not refer to the compromise dated April 21, 1932 and he raised no issue as to the validity or the effect of the said compromise.

9. In the written statement filed on behalf of Ghanshyam Das, Chaturbhuj Das and Basanti Devi, widow of Radhey Shyam, it was averred that the compromise of April 21, 1932 was a fictitious document and had been procured by Jamuna Prasad and other heirs of Baldeo Prasad Athwaria by clever manoeuvring. It was also stated that the widows of Mahadeo Prasad Athwaria did not self-efface themselves by executing the said document which was of no legal effect. In the alternative, it was pleaded that the surrender by the widows of Mahadeo Prasad Athwaria not being in favour of the nearest reversioners was invalid in law. They claimed that after the death of Smt Basanta Kunwar, succession opened in favour of the nearest reversioners of Mahadeo Prasad, namely, Mukund Lal and Mathura Das, sons of Smt. Tulsa Kunwar, and the heirs of Durga Dei. Certain other pleas were also raised which are not relevant for the decision of these appeals and need not be referred to. Separate written statements were also filed by Smt. Shakuntala Devi, daughter of Radhey Shyam and Mukund Lal and Mathura Das, sons of Tulsa Kunwar. The said written statements contained averments similar to those made in the written statements filed on behalf of Ghanshyam Das and Chaturbhuj Das, Mukund Lal, Mathura Das and Shakuntala Devi have submitted to the decree of the trial court.

10. The trial court framed a number of issues on the pleadings of the parties. It held that the document dated April 21, 1932 was a valid document and by executing it, the widows of Mahadeo Prasad surrendered all their rights in the properties of their husband and the said act was an act of self effacement. It also came to the conclusion that the nearer reversioners of Mahadeo Prasad Athwaria, namely, the heirs of Tulsa Kunwar and Durga Dei, accepted the said compromise and acted in accordance with it and that they were estopped from challenging its validity. It was further held that Basanta Kunwar had only a life interest in the English sense of the term in the five annas share which had been allotted to the share of the heirs of Baldeo Prasad Athwaria under the compromise dated 21 April, 1932. The trial court also recorded a finding that the cinema building had been constructed on the site of land which belonged to Mahadeo Prasad Athwaria and had been allotted to the heirs of Baldeo Prasad Athwaria and Mukund Lal and Mathura Das under a partition made between the parties in 1936. It also held that Lalji Maitra had no right or interest in the property in dispute. It accordingly granted a decree in favour of the heirs of Baldeo Prasad Athwaria. The operative portion of the decree, in so far as it is relevant, is as follows:--

'The suit No. 6 of 1964 is decreed in favour of the transposed plaintiffs (Claimants second set) Jamuna Prasad and others. It is hereby declared that Jamuna Prasad, Ram Kishun Das, Jwala Prasad, Dau Dayal and the widow and the other heirs of the deceased Kanhaiya Lal are the owners and landlords of the Cinema Building in suit to the extent of one-half and they are entitled to receive rent Rs. 500/- per month according to their half share from the interpleaders Shyam Behari Mehra and Nathuram Sharma. The other sets of claimants are neither owners nor landlords of that building to the extent of 1/2 in dispute and so they are not entitled to any rent in respect thereof'.

11. Aggrieved by the said decree, Lalji Maitra has preferred First Appeal No. 342 of 1969. He has since died and his heirs have been substituted under orders of this court. First appeal No. 350 of 1969 has been filed against the said decree by Ghanshyam Das and Chaturbhuj Das, sons of Sita Ram. We shall first consider the questions raised in First Appeal No. 342 of 1969 filed by Lalji Maitra.

12. Before dealing with the arguments of the learned counsel in the two First Appeals, it will be appropriate to briefly summarise the provisions of the compromise deed dated 21st of April, 1932. The executants of the document may be divided into three categories. In the first set are the widows of late Mahadeo Prasad Athwaria. In the second category are the descendants of Mahadeo Prasad Athwaria from his wife Smt. Basanta Kunwar. In the third category are all the heirs of Baldeo Prasad Athwaria who were then living, It would thus be seen from the array of the parties to this deed that all the nearer and the remoter reversioners of Mahadeo Prasad Athwaria and his widows were signatories to the document.

13. The document in its preamble states that there has been litigation in the family in connection with the properties which formerly stood in the name of Mahadeo Prasad Athwaria. It particularly refers to suit No. 263 of 1924 filed by Durga Dei, daughter of Mahadeo Prasad Athwaria for cancellation of the deed dated 31st of May, 1924 executed by the widows of Mahadeo Prasad Athwaria in favour of Jamuna Prasad son of Lala Bisheshwar Prasad. It also refers to the First Appeal decided by this court against the decree in the said suit and also mentions the fact that an application for leave to appeal to the Privy Council had been granted and all formalities in that connection had been completed.

14. Having made these factual recitals in the preamble the deed goes on to say that in order to avoid chronic litigation and to restore family peace, the parties have decided to settle all their disputes by way of family arrangement.

15. The very first paragraph of the operative portion of the deed unequivocally declares that Smt. Bhagwanta Kunwar and Smt Basanta Kunwar, widows of Mahadeo Prasad Athwaria, were surrendering all their limited rights in the property inherited by them from their late husband as the widows' estate. The document then goes on to describe three houses, one of which was to be used by Basanta Kunwar and Bhagwanta Kunwar for their residence during their lifetime without any right of transfer. One house each was given absolutely to the heirs of Durga Dei and Tulsa Kunwar. In respect of the remaining property it was stated in the document that six annas share shall belong absolutely to Sita Ram and Radhey Shyam and five annas share to Mathura Das and Mukund Lal. In respect of the remaining five annas share, it was agreed that the widows of Lala Mahadeo Prasad shall have a right to enjoy its usufruct and on their death, the said share shall belong absolutely to the descendants of Baldeo Prasad Athwaria. The document dated 21st April, 1932 did not divide the property of Mahadeo Prasad Athwaria. It, however, contained a clause which authorised the parties to appoint certain named persons as arbitrators for the puposes of making a partition.

16. The learned counsel appearing in First Appeal No. 342 of 1969 submitted that Smt. Basanta Kunwar admittedly died on 22nd of July, 1961. The Hindu Succession Act 1956 came into force on 17th July, 1956. The family arrangement embodied in the document dated 21st April, 1932 conferred a limited estate on the widows of Mahadeo Prasad Athwaria. Smt. Bhagwanta Kunwar had died in the year 1944 and on the date on which the Hindu Succession Act came into force, Smt. Basanta Kunwar was possessed of five annas share allotted to her under the said deed and as such she became full owner thereof under Section 14(1) of the Hindu Succession Act. He further urged that the heirs of the two daughters of Smt. Basanta Kunwar from Mahadeo Prasad had taken separate shares in the assets of Mahadeo Prasad and they were estopped from claiming any right and interest in the five annas share of the said property of which Smt. Basanta Kunwar was in possession at the time of her death.

We shall deal with the first submission of the learned counsel while considering First Appeal No. 350 of 1969. At this stage, even if we assume that Smt. Basanta Kunwar became the absolute owner of the property under Section 14(1) of the Hindu Succession Act as she possessed the same on the date on which it came into force, it would not advance the claim of the appellants in first appeal No. 342 of 1969. Section 15 of the Hindu Succession Act, inter alia, provides as follows :--

'15. General rules of succession in the case of female Hindus--The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16

(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in Sub-section (1) --

(a) any property inherited by a female Hindu from her father or mother shall devolve in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in Sub-section (1) in the order specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in Sub-section (1) in the order specified therein, but upon the heirs of the husband.'

17. Rule 1 of Section 16 lays down that among the heirs specified in Sub-section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry and those including in the same entry shall take simultaneously. Reading Sections 15 and 16 together, the conclusion is inescapable that Lalji Maitra who was the original appellant in First Appeal No. 342 of 1969 fell under a subsequent entry than the sons of Tulsa Kunwar and Durga Dei, daughters of Mahadeo Prasad from his wife Basanta Kunwar. If the first argument of the learned counsel is accepted, Lalji Maitra and his heirs will be completely excluded by Mukund Lal, Mathura Das, Radhey Shyam, Ghanshyam Das and Chaturbhuj Das.

18. In order to get over this hurdle, the learned counsel in First Appeal No. 342 of 1969 made the second submission to which we have referred above. For reasons to be stated in the following paras we have no hesitation in rejecting this contention also.

19. On a careful examination of the family arrangement dated April 21, 1932, it is evident that it does not contain any stipulation whereby the parties to the said agreement have covenanted to forgo their claims in respect of the share allotted to other executant under any circumstance whatsoever. The shares have been specified only in general terms.

20. On general principles also, the words used in the family arrangement cannot be construed to imply even indirectly a renunciation by the executants of the said document of their right to succeed by inheritance to the share which did not fall in their lot under the family arrangement if and when such a contingency arose. True the parties to the family arrangement dated 21st April, 1932 specified their shares in the property which once belonged to Mahadeo Prasad Athwaria. The object of the family arrangement was to restore family peace and amity. The question of succession to the share allotted to one party by the other party to the arrangement was not in the contemplation of the parties at the time of its execution and naturally was not provided for in the document.

21. In 'Norton on Deeds' at p. 266 (2nd Edn.), it is stated:

'The general words of a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given, though they were not mentioned in the recitals.'

22. The same principle has been enunciated thus in Hailsham's Edition of Halsbury's Laws of England, Vol. 7 at para 345:--

'General words of release will be construed with reference to the surrounding circumstances and as being controlled by recitals and context so as to give effect to the object and purpose of the document. A release will not be construed as applying to facts of which the creditor had no knowledge at the time when it was given.'

23. In the case of Chinnathayi v. Kulasekara Pandiya Naicker : [1952]1SCR241 , their Lordships have expressed themselves as follows:

'It is well settled that general words of a release do not mean release of rights other than those then put up and have to be limited to the circumstances which were in the contemplation of the parties when it was executed.'

24. It, therefore, follows that the test |for determination about the real purport or meaning of a document is the intention of the parties as disclosed by the language employed in it. The terms of the document have, therefore, to be related to the situation which prevailed at the time of its execution and to resolve which it was considered necessary by the parties to execute it. A situation which did not exist at the time of the execution of the document and which was not at all in their contemplation when they signed the document cannot by any stretch of reasoning be said to be covered by the terms of the document.

25. Learned counsel next relied on the principle of estoppel and in support of his submission referred us to the case of Gulam Abbas v. Haji Kayyam Ali : [1973]2SCR300 . We are unable to see how the principle of estoppel can be invoked in favour of Lalji Maitra. The question of estoppel is a question arising under the Contract Act and the Evidence Act. As we have stated above, the executants of the family arrangement dated 21st April, 1932 did not in any way contract to give up their right or interest to succeed to the share allotted to the other executants. The rule of estoppel is founded upon the doctrine that it would be most inequitable and unjust if a person who by a representation made or by conduct amounting to representation has induced another to act as he would not otherwise have done should not be allowed to repudiate the effect of his former statement to the loss and injury of the person who acted on it. The appellant Lalji Maitra cannot be said to have been misled by any declaration, act or omission of the executants of the said family arrangement to believe a thing to be true and to act upon such belief.

26. The facts in the case of Gulam Abbas (supra) are wholly distinguishable. The dispute in that case was in relation to the properties of Qadir Ali Bohara who died leaving behind five sons. He had incurred debts so heavily that all his property would have been swallowed up to liquidate the same. Three of his sons namely, Ghulam Abbas, Abdullah and Imadad, had prospered in their business and were in affluent circumstances. They agreed to come to his rescue and to save his property. An agreement dated 10-10-1942 between the sons of Qadir Ali Bohara was executed whereby Ghulam Abbas, Abdullah and Imdad agreed to pay all the debts due from their father. By the same agreement, the other two sons Haji Kayyam Ali and Nazar Ali agreed that they would not claim any share in the properties standing in the name of Qadir Ali Bohara if his debts were paid by Ghulam Abbas and the other two brothers mentioned above, Acting on the terms of the said agreement Ghulam Abbas and the other two sons paid the debts due to their father Qadir Ali Bohara and thus saved the property which stood in his name from the creditors. The said Qadir Ali Bohara died on April 5, 1952 and thereupon Haji Kayyam Ali and Nazar Ali commenced the action claiming a share in the property of their father. The question which fell for the consideration of the Supreme Court in that case was whether the agreement between the sons of Qadir AH dated 10-10-1942 was hit by Section 6(a) Of the Transfer of Property Act. It was in that context that the Supreme Court held that the sons of Qadir Ali Bohara who had paid his debts and saved the property standing in his name on the express undertaking given by the other two sons that they would not claim any share in the property were entitled to the benefit of Section 115 of the Indian Evidence Act. It was also held that Haji Kayyam Ali and Nazar Ali were estopped from claiming any share in the property of their, father and that the agreement dated 10-10-1942 was not hit by Section 6(a) of the Transfer of Property Act. It would thus appear that the case relied upon on behalf of Lalji Maitra is wholly inapplicable to the facts of the case.

27. We are, therefore, of the opinion that First Appeal No. 342 of 1969 preferred by Lalji Maitra is wholly without merit and must be dismissed.

28. This brings us to the connected First Appeal No. 350 of 1969 filed by Ghansbyam Dass and Chaturbhuj Das sons of Sita Ram. It has been argued on behalf of the said appellants that Smt. Basanta Kunwar and Smt. Bhagwanta Kunwar did not surrender their entire interest in the property of Mahadeo Prasad Athwaria and, as such, the surrender which purports to have been made by them was void. The validity of the surrender made by the widows of Mahadeo Prasad Athwaria was also challenged on the ground that the surrender had not been made by the widows in favour of the immediate reversioners but that the said surrender was also in favour of remoter reversioners, namely, the heirs of Baldeo Prasad Athwaria.

29. Before we come to the legal questions raised on behalf of the appellants in this First Appeal, it is necessary to refer to certain facts which are very material to the controversy before us. Ext. A-12 is the true copy of the plaint in Original Suit No. 37 of 1932 filed by Sita Ram and Radhey Shyam in the Court of Munsif, Azamgarh. The relief claimed in the suit was for partition of the property in accordance with the shares determined in the family arrangement dated April 21, 1932. In para 2 of the plaint, it was specifically stated that by an agreement dated 21st of April, 1932, the plaintiffs of that suit, Sita Ram and Radhey Shyam, were entitled to 8/16th share in the properties of Mahadeo Prasad Athwaria. In the said plaint, all the executants of the said deed dated April 21, 1932 had been made defendants. Ext. A-3 is the true copy of the written statement filed by Mukund Lal and Mathura Das sons of Smt. Tulsa Kunwar, In the said written statement they admitted the validity of the family arrangement dated 21st April, 1932 and similar written statement was filed by Smt. Basanta Kunwar and Smt. Bhagwanta Kunwar and a certified copy of the said written statement is Ext. A-4. Mukund Lal and Mathura Das filed Suit No. 196 of 1935 for their share of profits in the property in accordance with the shares determined between the parties by the family arrangement dated 21st April, 1932 A certified copy of the plaint in the said suit is Ext. A-13. The defendants in the said Suit No. 196 of 1935 were the widows of Mahadeo Prasad Athwaria, Sita Ram and Radhey Shyam sons of Durga Dei and Bisheshwar Prasad and Ishwari Prasad, sons of Baldeo Prasad Athwaria and Jamuna Prasad son of Bisheshwar Prasad. Ext. A-15 is a copy of the written statement filed by Mukund Lal and Mathura Das. In the said written statement, they also admitted the genuineness of the family arrangement referred to above and the interest given to the executants thereof under its terms. Ext. A-5 is the true copy of the plaint in original Suit No. 11 of 1935 filed by Mukund Lal and Mathura Das in the Court of Sub-Judge, Azamgarh, claiming 5/16th share in the moveable properties left behind by Mahadeo Prasad Athwaria. It may be stated that all these suits were dismissed on one technical ground or the other and were not finally decided on merits.

30. Yet another suit being Suit No. 21 of 1936 was filed by Sita Ram and Radhey Shyam sons of Durga Dei for partition of the urban property left behind by Mahadeo Prasad Athwaria. In the plaint of the said suit, Ext. A-7 it was averred that the plaintiffs of that suit had 6/16th share whereas the heirs of Baldeo Prasad Athwaria were owners to the extent of 5/16th share and that the remaining 5/16th share belonged to Mukund and Mathura Das. In that plaint it was further alleged that Smt. Basanta Kunwar and Smt. Bhagwanta Kunwar had a life interest in 5/16th share of which the heirs of Baldeo Prasad Athwaria were the owners. The plaintiffs of that suit claimed partition and separate possession of their 6/16th share in the said urban property which formerly belonged to Mahadeo Prasad Athwaria. Mukund Lal and Mathura Das filed one set of written statement. Another set of written statement was filed on behalf of Basanta Kunwar and Bhagwanta Kunwar. The aforesaid allegations made in the plaint were admitted in these written statements. A preliminary decree Ext. A-189 was passed in the said suit on 17-12-1936 and the plaintiffs of the aforesaid Suit No. 21 of 1936 were held entitled to 6/16th share. A final decree was also prepared and in the said final decree 6/16th share of Radhey Shyam and Sita Ram was separated by metes and bounds. The remaining 10/16th share remained joint between the heirs of Baldeo Prasad Athwaria and Mathura Das and Mukund Lal son of Smt. Tulsa Kunwar. A deed of partition dated 9th Dec., 1936 Ext. A-183 was also executed between the parties to the family arrangement dated April 21, 1932 relating to the Zamindari property. By means of the said partition deed, the Zamindari property was also partitioned in accordance with the shares defined in the aforesaid family arrangement.

31. There is other documentary evidence on record which points in the same direction as the evidence discussed above. We do not consider it necessary to burden this judgment by making reference to the said evidence particularly because it has not been disputed before us that the parties to the family arrangement dated 21st of April, 1932 accepted the said document and acted in accordance with it. The trial Court has held that the cinema building in dispute was constructed on a piece of land which fell to the lot of Mukund Lal, Mathura Das and others under the final decree of partition passed in Original Suit No. 21 of 1936. The correctness of this finding has also not been assailed before us.

32. The question which then requires consideration by us is whether the surrender made by Smt. Bhagwant Kunwar and Smt. Basanta Kunwar and embodied in the family arrangement dated 21st of April, 1932 can be challenged by the appellants Ghanshyam Das and Chaturbhuj Das. It is not disputed by them that they were mere reversioners on the date of the execution of the family arrangement. Smt. Basanta Kunwar and Smt. Bhagwant Kunwar had a widows' estate in the property left behind by their husband Mahadeo Prasad Athwaria.

33. According to Hindu Law, a widow who succeeds to the estate of her husband in default of a male issue whether she succeeds by inheritance or by survivorship does not take a mere life estate in the property. The whole estate is for the time being vested in her absolutely for some purposes though in some respect she has only a qualified interest. Her estate is in law one which has been compared to that of a tenant in tail in English law. She has powers of alienation subject to certain conditions. A reversionary heir like the appellants, as they were in 1932, would have only a contingent interest which may be compared with spes successionis. They may have a right to sue the widows restraining them from committing waste or injuring the property but the contingent interest possessed by them may not have ripened into a vested interest at all, if they had predeceased any of the two widows. At all events when the family arrangement was made, they had no right to possess or enjoy any portion of the estate of their maternal grandfather Mahadeo Prasad Athwaria. From the evidence which we have discussed above, it is clear that the appellants not only acquired 6/16th share in the property left behind by Mahadeo Prasad Athwaria under the family arrangement dated April 21, 1932 but they enforced the said interest by obtaining partition and separate possession to the extent of the said share. On the other hand, the heirs of Baldeo Prasad Athwaria, though they had lost the First Appeal from this court, had succeeded in obtaining leave to appeal to the Privy Council and had complied with the formalities necessary for the hearing of the said appeal. It was only because of the family arrangement arrived at between the parties that they did not pursue the matter further and allowed their appeal to the Privy Council to be dismissed. In our opinion, the appellants' attempt to impugn the validity of the family settlement on the grounds stated above cannot be entertained. The principle of estoppel as embodied in Section 15 of the Indian Evidence Act is clearly attracted against the appellants Ghanshyam Das and Chaturbhuj Das.

34. The view which we are taking on this aspect of the case is supported by a number of decisions. In Kanhai Lal v. Brij Lal (AIR 1918 PC 70), it was observed by the Judicial Committee :

'Kanhai Lal was a party to that compromise. He was one of those whose claims to the family property, or to shares in it, induced Ram Dei, against her own interests and those of her daughter, Kirpa, and greatly to her own detriment, to alter her position by agreeing to the compromise, and under that compromise he obtained a substantial benefit, which he has hitherto enjoyed. In their Lordships' opinion he is bound by it, and cannot now claim as a reversioner'.

35. In Ram Charan Das v. Girja Nandini Devi : [1965]3SCR841 , it was held that if the disputes between the parties are settled by means of a compromise and the compromise is acted upon, none of the parties can be permitted to impeach it thereafter. In the case of S. Shanmugam Pillai v. Kr. Shanmu-gam Pillai : [1973]1SCR570 , it was observed :

'Equitable principles such as estoppel, election, family settlement, etc. are not mere technical rules of evidence. They have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In the recent times in order to render justice between the parties, courts have been liberally relying on those principles. We would hesitate to narrow down their scope'.

36. In that case after discussing the facts, the court observed that if a person having full knowledge of his right as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponents at the relevant time, he cannot be permitted to go back on that agreement when reversion actually falls open.

37. Mulla in his Treatise on Hindu Law, 14th Edn. has stated the law in slightly different terms on page 235:--

'An alienation by a widow of her husband's estate without legal necessity or an invalid surrender is not altogether void but only voidable by the next reversioner. He may affirm it or he may treat it as a nullity. If he elects to affirm it, he will be precluded from exercising his right to avoid it and from questioning the transaction'.

38. Now, election is a species of estoppel. The basic principle underlying the doctrine of estoppel by election is that where a person along with another person is confronted with two alternatives and mutually exclusive courses of action in relation to said dealing between them he may make his election and if he so conducts himself as to reasonably induce the others to believe that he is intending definitely to adopt one of the alternative courses of action and is relinquishing the other and in such belief the other person alters his position to his detriment, the person making the election is precluded as against that other person from resorting to the course which he has thus deliberately declared his intention to reject.

39. In relation to a benefit arising from or under an instrument, the doctrine of election is attracted when a person puts himself in a capacity to take under the instrument or actually takes some benefits under the same. Then in such circumstances, he cannot be permitted subsequently to deny that the instrument was not valid from its inception.

40. We are, therefore, of the opinion that the attack mounted by the appellants Ghanshyam Das and Chaturbhuj Das against the validity of the family arrangement dated 21st April 1932 on the ground stated above is wholly futile, the contesting respondents are entitled to immunity from such attack because the doctrine of estoppel and election fully applies to the facts of the instant case. It would be wholly inequitable to permit the appellants to approbate and reprobate in the same breath.

41. We have held just now that the appellants have no locus standi to call in question the legality of the instrument of family arrangement dated April 21, 1932. In spite of the said finding, we felt inclined to examine the validity of the arguments advanced by the learned counsel on this point particularly because our decision on the said point will be helpful in dealing with other questions which have been urged in support of this appeal.

42. The law relating to surrender by a Hindu widow has been admirably stated in Venkatarayudu v. T. Narayana (AIR 1941 Mad 430), in the following words:

'It is settled law that the true view of surrender under the Hindu Law is that it is a voluntary act of self-effacement by the widow having the same consequences as her death, in opening up the succession to the next heirs of the last male owner. The intermediate stage is merely 'extinguished and not transferred' and the law then steps in to accelerate succession so as to let in the next reversioner. 'The surrender conveys nothing in law; it is purely a self-effacement which must by necessity be complete; for, as the Privy Council has -said, there cannot be a widow partly effaced and partly not, just as there cannot be widow partly dead and partly alive. 'The fiction of a civil death is thus assumed' when a surrender takes place; and when the reversioners come in they come in in their own right as heirs of the last owner and not as transferees from the widow'.

43. The above quoted passage was cited with approval by the Supreme Court In Natvarlal Punjabhai v. Dadubhai Manubhai : [1954]1SCR339 , B.K. Mukherjea J. speaking for the court, laid down thus :--

'Thus surrender is not really an act of alienation of the widow of her rights in favour of the reversionor. The reversioner does not occupy the position of grantee or transferee, and does not derive his title from her. He derives his title from the last male holder as his successor-in-law and the rights of succession are opened out by the act of self-effacement on the part of the widow which operates in the same manner as her physical death'.

44. From what has been stated above, three principles clearly emerge:--

(1) Surrender by a widow accelerates the succession and the persons who are the heirs of the male holder automatically become entitled to the property as if the widow has suffered a physical death.

(2) A surrender by a widow in order to be effective must be of her entire interest in the whole of the property in which she had a widow's estate.

(3) After a surrender has been made by a widow the reversionary heirs take the property by limitation and not by purchase.

45. In the light of the above principle, we have carefully examined the family arrangement dated April 21, 1932 and we are of the opinion that on a proper and reasonable interpretation of the said instrument, the arguments advanced by the learned counsel for the appellants cannot be sustained. In the operative portion of the instrument, Smt. Bhagwanta Kunwar and Smt. Basanta Kunwar have unconditionally surrendered the widows' estate. The consequence of such surrender would be that the reversionary heirs of Mahadeo Prasad Athwaria ipso facto became entitled to the entire estate. It was then open for them to enter into family arrangement inter se and with the descendants of Baldeo Prasad Athwaria and the widows. By means of the said instrument, five annas in a Rupee were transferred by the immediate reversioners of Mahadeo Prasad Athwaria in favour of remoter reversioners with the condition that the widows of Mahadeo Prasad Athwaria shall have a right to the usufruct of the said five annas share during their lifetime but shall have no right to transfer or alienate the said share in any manner,

46. The instrument under consideration is thus a composite document. It embodies an unconditional surrender by the widows and then proceeds to record a family arrangement between the executants to enjoy the property in the manner stated above. We are unable to subscribe to the proposition that Smt. Bhagwanta Kunwar and Smt. Basanta Kunwar surrendered their widows' estate in favour of reversioners and persons who were not immediate reversioners. We cannot also read the document whereby the widows of Mahadeo Prasad Athwaria partly surrendered their rights and partly kept them alive.

47. We have already briefly indicated the nature of a widow's estate under the Hindu Law. We may supplement the said observations by making reference to two decided cases. In the case of Natvarlal (supra). B.K. Mukherjee J. formulated the true nature of the Hindu widow's estate in these terms:--

'Though loosely described as a life estate', the Hindu widows' interest in her husband's property bears no analogy to that of a 'life tenant' under the English Law. As was pointed out by the Judicial Committee : vide -- 'The Collector of Masulipatam v. Cavaly Venkata' (1859-61) 8 Moo Ind App 529 (PC) as early as 1861, the estate which the Hindu widow takes is a qualified proprietorship with powers of alienation for purely worldly or secular purposes only when there is justifying necessity and the restrictions on the powers of alienation are inseparable from her estate'.

'The restrictions, as the Judicial Committee pointed out, which are imposed on the Hindu widow's powers of alienation, are not merely for the protection of the material interest of her husband's relations, but by reason of the opinion expressed by all the Smriti writers that the Hindu widow should live a life of moderation and cannot have any power of gift, sale or mortgage except for religious or spiritual purposes'.

48. In this case, it was clearly pointed out that a Hindu widow's estate is entirely different from a life estate under the English Law. The distinction between a life estate and the Hindu widow's estate was held thus:--

'In English law the reversioner or remainderman has a vested interest in the property and his rights are simply augmented by the surrender of the life estate. In the Hindu law on the other hand, the widow, so long as she is alive, fully represents her husband's estate, though her powers of alienation are curtailed and the property after her death goes not to her but to her husband's heirs. The presumptive reversionner has got no interest in the property during the lifetime of the widow. He has a mere chance of succession which may not materialise at all'.

49. The Judicial Committee of the Privy Council in the case of Janaki Ammal v. Narayanaswami Aiyar (AIR 1916 PC 117), laid down the law relating to the Hindu widow's estate in these words :--

'Her right is of the nature of a right of property; her position is that of owner, her powers in that character are, however, limited, but, to us the familiar language of Mayne's Hindu Law, Para 325, p. 870, 'so long as she is alive no one has any vested interest in the succession' '.

50. To conclude this point, it may be stated that a life estate under the English sense and a Hindu widow's estate are estates of different nature having substantial qualitative difference. A Hindu widow is a qualified owner of the property for the time being and completely represents the estate of her husband. In English law, the estate is vested in the reversioner or the remainderman and the holder of a life estate has only a right to enjoy the usufruct during his or her lifetime.

51. On the basis of the principles stated above, the two widows of Mahadeo Prasad Athwaria had only been granted a life estate in the English sense of the term. The estates given to them under the instrument dated 21st April, 1932 was, therefore, a new estate and not a continuance of the widows' estate limited to a five annas share.

52, Learned counsel has then relied on Ext. C-30. This is an agreement of lease dated Oct. 10, 1956 executed by Mukund Lal as Karta of the joint Hindu family consisting of himself and his brother Mathura Das and Smt. Basanta Kunwar in favour of one Gulzari Lal in respect of the cinema building. In this document Smt. Basanta Kunwar has been described as the part owner of the said building. He has also drawn our attention to a sale deed dated 13-8-1960 executed by Basanta Kunwar in respect of the property which formerly belonged to Mahadeo Prasad Athwaria. In both these documents, the signatures of Smt. Basanta Kunwar have been attested by Jamuna Prasad son of Bisheshwar Prasad. We have also been referred on behalf of the appellants to certain other documents in which Smt. Basanta Kunwar has been described as owner. On the basis of these documents it has been contended that Smt. Basanta Kunwar was the owner of the five annas share during her lifetime.

53. The argument, as stated above, has been advanced to support the contention that the instrument dated 21st April, 1932 should be construed by us to mean as conferring an absolute estate on the widows of Mahadeo Prasad Athwaria during their lifetime. In other words, the submission is that if Smt. Basanta Kunwar and the descendants of Baldeo Prasad Athwaria treated her as absolute owner of the five annas share of the property of her late husband, that is the only true meaning which can be given to the language employ ed in the family arrangement We are unable to accept this contention.

54. The language employed in the family arrangement dated 21 April, 1932 is plain and does not suffer from any ambiguity. If the words employed in the deed are clear and do not admit of any difficulty in construction, we are not prepared to look into subsequent conduct of the parties in order to ascertain the meaning of the family arrangement.

In Schiller A.G. v. Wickman Ltd. (1973) 2 All ER 39 Lord Simon referred to the epigramme of Sri Edward Sugden which is to the following effect:--

'.......... tell me what you have done under such a deed, and I will tell you what that deed means'.

55. Lord Simon held that the said dictum suffered from a logical flaw. According to him, if one wants to tell a Judge how he has acted under a deed, the Judge can at best say how the person making the statement understood the deed to mean. In other words, acting in a particular manner under the terms of a deed is not conclusive as to the real meaning and intent of the words employed therein if the said words are clear and do not suffer from any ambiguity.

56. Odger on 'Construction of Deeds and Statutes'. 5th Edn. has this to say:

'The question involved is this. Is the fact that the parties to a document, and particularly to a contract, have interpreted its terms in a particular way and have been in the habit of acting on the document in accordance with that interpretation is if any admissible guide to the construction of the document In the case of an unambiguous document, the answer is 'No' ?

57. Northon on Deeds 2nd Edition, has reiterated the above principle at page 151. We quote the words of the learned author:

'Prima facie it would appear that the subsequent admission as to the true meaning of a deed by, or the subsequent conduct of a party to or person claiming under a deed cannot be received to explain or alter the construction of a deed which can be fairly construed without ambiguity.'

58. We have already held that the family arrangement dated April 21, 1932 granted only a life estate in the English sense of the terms in favour of Basanta Kunwar and Bhagwanta Kunwar, widows of Mahadeo Prasad Athwaria. We have also found that the life estate in the English sense of the term is qualitatively different from a widow's estate under the Hindu Law. The instrument dated April 21, 1932 is unambiguous and extrinsic evidence to construe its meaning is not admissible. The argument advanced by the learned counsel on behalf of the appellants Chaturbhuj Das and Ghanshyam Das on the basis of the subsequent conduct of the parties is, therefore, wholly without substance and must fail.

It has been next urged that Smt. Basanta Kunwar was in possession of the five annas share of the property of her husband at the time of the commencement of the Hindu Succession Act and the said share should be deemed to have been held by her as full owner thereof and not as a limited owner under Section 14(1) of the said Act. The same argument was raised on behalf of Lalji Maitra in First Appeal No. 342 of 1969. On behalf of the contesting respondents, it has been pointed out that the instant case falls under the exception contained in Sub-section (2) of Section 14 and as such the question of applicability of Sub-section (1) of Section 14 does not arise. We shall now proceed to examine the validity of the rival contentions raised by the parties on this question.

59. On behalf of the appellants, we have been referred to the case Vaddeboyina Tulasamma v. Vaddeboyina Sesha Reddi (AIR 1977 SC 1944). In 'that case, one Venketta Sesha Reddy, husband of the appellant Tulsamma, died in the year 1931 in a state of jointness with his step brother V. Sesha Reddy. Tulasamma who survived her husband filed a petition for maintenance which was subsequently converted into a suit. The suit filed by her was decreed ex parte and she applied for the execution of the said decree. During the course of the execution proceedings, a compromise under Order XXI Rule 2 of the Civil P.C. was recorded. Tulasamma was allotted the suit properties to enjoy as a limited owner during her lifetime without any right of transfer. In pursuance of the said compromise, Tulasamma remained in possession of the said properties until the Hindu Succession Act, 1956 came into force. She transferred some of the properties allotted to her and V. Sesha Reddy filed the suit giving rise to the appeal before the Supreme Court for the cancellation of the said transfer. It was common ground between the parties that Tulasamma as a childless widow was entitled to maintenance out of the property which was the joint Hindu family property of her husband and his brother. It was contended on behalf of the plaintiff of the suit, namely V. Sesha Reddy that the case was governed by the exception contained in Sub-section (2) of Section 14 of the Hindu Succession Act and the general rule laid down in Sub-section (1) of the said section did not apply, It was in that context that Bhagwati, J. speaking for the Court laid down :

'It will, therefore, be seen that Sub-section (1) of Section 14 is large in its amplitude and covers every kind of acquisition of property of a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed she would become the full owner of the property.'

60. The scope of Sub-section (2) of Section 14 of the Act, as stated in the judgment, is now quoted:

'Now, Sub-section (2) of Section 14 provides that nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. This provision is more in the nature of a proviso or exception to Sub-section (1) and it was regarded as such by this Court in Badri Pershad v. Smt. Kanso Devi, : [1970]2SCR95 . It excepts certain kinds of acquisition of property by a Hindu female from the operation of Sub-section (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of women in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in Sub-section (1), It cannot be interpreted in a manner which would rob Sub-section (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by Sub-section (1).'

61. In this case, it was further pointed out that it was only when property is acquired by a Hindu female as a new grant for the first time and the instrument, decree, order or award giving the property prescribes a term on which it is to be held by a Hindu female, namely, as a restricted owner that Sub-section (2) comes into play and excludes the applicability of Sub-section (1). In other words, if an instrument, decree, order or award gives recognition or effect to an antecedent right possessed by a Hindu female, the case would fall under Sub-section (1) of Section 14. On the other hand, if such right is created for the first time in consequence of such instrument, order, decree or award, the case would be covered by the exception contained in Sub-section (2) of Section 14. In such a case, Sub-section (1) will not at all apply.

62. We now proceed to apply the principles of law enunciated in the case of Tulsamma (supra) to the instant case. The family arrangement propounded in the instrument dated 21st April, 1932 completely extinguished and obliterated all the antecedent rights possessed by the executants in the property which was in dispute between the parties in First Appeal No. 342 of 1969 and created fresh rights in their favour. The rights conferred on the parties by the said instrument were new rights and the parties agreed to abide by the terms of the agreement and to honour the said rights. The case relied upon on behalf of the appellants in the two appeals does not advance their case and does not support their contention.

63. In the case of Mst. Karmi v. Amru : AIR1971SC745 one Jaimal was the owner of the suit property. He died in 1938 leaving behind his wife Nihali. His son Ditta had predeceased him. The appellant before the Supreme Court was a daughter of Ditta and the respondents were the collaterals of Jaimal. Jaimal had executed two wills. By the second will, he revoked the first will and he directed that on his death, his entire estate would devolve on his widow Nihali during her lifetime and thereafter on Bhagtu and Amru, his collaterals. Nihali died some time in 1960 or 1961 and a dispute about succession arose between the granddaughter of Jaimal and his collaterals Bhagtu and Amru about the property of the deceased. Reliance was placed on behalf of the appellants before the Supreme Court, namely, the granddaughter of Jaimal, on Section 14(1) of the Hindu Succession Act, 1956. It was argued that Nihali became the absolute owner of the property which was in her possession and on her death succession opened in favour of the appellant, namely, the grand-daughter of Jaimal and Nihali. The Supreme Court observed :

'Nihali having succeeded to the properties of Jaimal on the strength of that will cannot claim any rights in those properties over and above that given to her under that will. The life estate given to her under the will cannot become an absolute estate under the provisions of the Hindu Succession Act.'

64. To the same effect is the decision by a Division Bench of this Court in Basdeo v. Director of Consolidation, 1969 All LJ 1027.

65. For the reasons stated above, we are unable to endorse or accept the submission made on behalf of the appellants that the case was governed by Section 14(1) of the Hindu Succession Act. In our opinion, the life estate conferred on Basanta Kunwar under the family arrangement dated April 21, 1932 is a right acquired under an instrument which prescribed a restricted estate in her favour in the property. The life estate so created is covered by the exception engrafted to Sub-section (1) by the terms of Sub-section (2) of the Hindu Succession Act, 1956.

66. It was lastly contended on behalf of the appellants that Smt. Basanta Kunwar was the absolute owner of the usufruct of the five annas share which was possessed by her after the death of Smt. Bhagwanta Kunwar. She had contributed to the construction of the cinema building to the extent of 1/2 from the said usufruct and, as such, she became the absolute owner of the said half share in the cinema building. We don't feel impressed by the submission.

67. It is not disputed that the cinema building was erected on the land which fell to the share of Mukund Lal and Mathura Das and the heirs of Baldeo Prasad Athwaria under the decree passed in partition Suit No. 2l of 1936. The building was an accretion to the land on which it was erected. Assuming that Basanta Kunwar was the owner of the usufruct of five annas share of the property, she inextricably mixed her own property with the property of which she was not the owner and in which she had only a life interest. The benefit of the accretion, would, therefore, go to the remainderman and he will take not only the land but also the building erected thereon. The principle embodied in Section 66 of the Indian Trusts Act would squarely apply.

68. We also do not feel advised to accept the submission that the erection of the building would enure to the benefit of Smt. Basanta Kunwar personally. The law on the subject has been laid down by Mulla in his book 'Principles of Hindu Law', 14th Edn. at p. 212 in the words given as below:

'It has thus been held that where a widow inherits landed property in a village from her husband, and with the savings of the Income of that property she purchases other lands in the same village, and long after the purchase she makes a gift both of the original estate and the after-purchases to one and the same person (being the daughter in that case), only reserving to herself a life interest in part of them, the after-purchases constitute accretions to the estate which she has no power to alienate except for a purpose which would justify alienation of the original estate. It has similarly been held, that where the widow erects buildings on land belonging to the husband's estate, or deposits money belonging to her husband's estate with a banker upon the understanding that the interest of every year shall be added to the principal and the amalgamated sum should be treated as a fresh deposit, the buildings and the accumulations of the interest must be deemed to be accretions to the estate, and descendible to her husband's heirs.'

69. For the reasons given above we find no force in First Appeal No. 350 of 1969.

70. The result is that First Appeal No. 342 of 1969 and First Appeal No. 350 of 1969 are dismissed with costs to the contesting respondents.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //