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Kashiram Vs. Bhura and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 233 of 1976
Judge
Reported inAIR1981MP236
ActsSuccession Act, 1925 - Sections 82 to 88 and 95; Hindu Succession Act, 1956 - Sections 14(2); Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1951 - Sections 2(9) and 38
AppellantKashiram
RespondentBhura and ors.
Appellant AdvocateY.S. Dharmadhikari, Adv.
Respondent AdvocateA.R. Choube, Adv.
DispositionAppeal allowed
Cases ReferredMeharban Sinsh v. Naresh Singh
Excerpt:
- - it was therefore, said that she was perfectly competent to alienate the lands. the circumstances under which the testator makes a will, such as the extent of his property, the family and the like must also be taken into consideration. the court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. conspicuous absence of the use of any such words while creating demise in favour of sarjabai clearly speaks of the testator's intention of only creating a life interest in sarjabai. there is no such provision in either of those two acts like section 4 (2) of the m......are of little assistance in construing the madhya bharat act. as the provisions of the m. p- act are similar to the madhya bharat act. it necessarily follows from the decision in meharban singh's case (supra) that the reference to the decisions based upon the u. p. act and upon the bihar act does not carry the respondents, case any further. we are therefore, of opinion that sarjabai continued to retain possession of the 'sir land' (land in suit) not under any fresh grant under the provisions of the abolition act. the contention raised by the respondents thus fails.8. the appeal is allowed. the impugned judgment and decree are set aside and the suit is decreed. the alienation made by sarjabai in favour of respondents 2 to 9 is held not binding. on the appellant after her death......
Judgment:

B.C. Varma, J.

1. This appeal by the plaintiff is directed against the judgment and decree, dated 2-12-1976, passed by the District Judge. Betul. in Civil Suit No. 32-A of 1971 dismissing his suit for declaration that the alienation of the suit property made by respondent; Sariabai (since deceased) in favour of the other respondents is not binding on him after her death, and also for possession.

2. One Tularam had a son Pancham who died on 6-8-1926. Pancham had three wives including one Punii. Sarjabai, original defendant No. 1, was the daughter of Punji. On 16-5-1907, Pancham executed a Will (copy of which is Ex. P-4) in favour of Sariabai whereby he bequeathed certain Sir lands and a house to her. Pancham adopted one Gopichand alias Korat as his son. Gopichand is dead and plaintiff/ appellant Kashiram is the son of Gopichand. On the death of Pancham, Sarjabai came in possession of the suit property as a legatee under the Will of Pancham. On 28-10-1971, she made a gift of the suit lands and the house in favour of respondents 2 to 9 as trustees of Gadhekar Tapti Dharamshala. Multai. The plaintiff's claim in the suit was that the Will, dated 16-5-1907 (Ex. P-4), created only a life interest in Sarjabai in the property bequeathed thereunder and, therefore, the tarnsfer made by her under the gift deed, dated 28-10-1971, in favour of respondents 2 to 9 was not binding on him beyond the lifetime of Sariabai and that he was entitled to be put in possession of that property after her death as its exclusive owner. The defence was that the Will conferred an absolute estate on Sariabai who was, therefore, quite competent to alienate the same absolutely. The defence found favour with the trial Court which dismissed the suit. Before this Court, the respondents/defendants have amended their written statement raising a plea that the lands in suit being Sir have vested in the State on the coming into force of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals. Alienated Lands) Act, 1950, that malikmakbuza rights were conferred on her under Section 38 of the Abolition Act since she was in possession on the date of abolition and that as this grant in her favour was a fresh grant independent of the Will, it conferred an absolute heritable and transferable title in her. It was therefore, said that she was perfectly competent to alienate the lands. It may be mentioned that the learned counsel for the appellant did not dispute that the lands in question were Sir and that they were in possession of Sariabai at the time of coming into force of the Abolition of Proprietary Rights Act. It was also not disputed that Gopichand was the duly adopted son of Pancham.

3. Shri Dharmadhikari, learned counsel for the appellant, contended that the Will (Ex. P-4) only conferred a life estate on Sarjabai and upon her death the estate reverted to the only surviving reversioner, namely, the plaintiff. The decision on the point so raised shall turn one way or the other upon the construction of the Will. It will, therefore, be convenient to reproduce the relevant part of the Will:--(Matter in Vernacular Omitted -- Ed.) From the expression used in this Will (Ex. P. 4), it is not free from difficulty to reach the real intention of the testator. However, the Court should make all possible efforts to find out the intention of the testator by reading the Will as a whole. The decided cases and the provisions contained in Sections 82 to 88 of the Indian Succession Act, 1925, lay down that as far as possible such construction as would give to every expression in the Will some effect rather than that which would render any of the expressions inoperative must be accepted. It is also the rule that the words occurring at more places than one in a Will should be presumed to be used always in the same sense unless a contrary intention appears from the Will. All parts of the Will should be construed in relation to each other. The circumstances under which the testator makes a Will, such as the extent of his property, the family and the like must also be taken into consideration. Referring to two earlier decisions in Pearey Lal v. Rameshwar Das AIR 1963 SC 1703 and Ramachandra Shenoy v. Hilda Brite, AIR 1964 SC 1323 the Supreme Court in Navneet Lal v. Gokul, AIR 1976 SC 794 has summed up the rule of construction relating to Wills in these terms (at P. 797) :

'In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed.

In construing the language of the Will the Court is entitled to put itself into the testator's armchair and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense.........

The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradictory.

The Court must accept, if possible such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The court will look at the circumstances under which the testator makes his Will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator.'

In sub-paragraph (5) of paragraph 8 of the report, their Lordships have said;

'It is one of the cardinal principles of construction of Wills that to the extent that it is legally possible effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid, the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary, intention contained in the Will.'

Yet another rule of construction of a Will as provided in Section 95 of the Indian Succession Act. 1925, is that where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the Will that only a restricted interest was intended for him. In Ram Gopal v. Nand Lal. AIR 1951 SC 139 it has been ruled that there is no warrant for the proposition that when a grant of an immovable property is made to a Hindu female, she does not get an absolute or alienable interest in such property, unless such power is expressly conferred upon her. This view has been reiterated in Nathoo Lal v. Durga Prasad. AIR 1954 SC 355.

4. When read in the light of the above principles, the recitals in the Will (Ex. P-4) make it manifest that the testator wanted to provide his daughter and at the same time wanted that the property should ultimately be retained in his family for which purpose he was soon to take Gopichand in adoption and was also hopeful to get a natural son. Yet another predominant feature of the Will is that the testator was very much apprehensive of his brother Nanakram and, therefore, in the Will he has allowed him the property as a last resort only after the death of his wives, his natural born son or the adopted son dying issueless. The expression creating demise in favour of his son that may be born to him or in favour of the adopted son Gopichand used the word 'malik'. No such word is used 'in the expression creating demise in favour of Sarjabai. Conspicuous absence of the use of any such words while creating demise in favour of Sarjabai clearly speaks of the testator's intention of only creating a life interest in Sarjabai. It is also significant that the will provides that on the death of Sariabai the estate conferred on her under the Will is to pass in the line of her male issues only (Matter in vernacular omitted -- Ed.)' Another important noticeable feature is that in the absence of any such male issues, the property was to revert to his sons, natural born or adopted. If these expressions are to be given effect to and are also to be reconciled with creating an estate in favour of Sarjabai, the only way is to construe that the demise in favour of Sarjabai was only for her life.

5. A man cannot alter the line of succession allowed by law for the purpose of carrying out his own wishes and policy. A Will cannot create a course of succession unknown to Hindu Law. When successive estates are conferred, the inheritance must be such as is known to Hindu Law. It is on this basis that the Wills and gifts, which direct an estate to go in an order of succession which excludes female heirs, that is, an estate in tail male, have been held to be invalid to that extent. All the same, such expressions furnish due to the intention of the testator. In the present case, the direction is that the estate bequeathed to Sarjabai would pass to her son or son's son excluding any female heir. The estate so given to her is inconsistent with the Hindu Law of inheritance as its effect is to exclude female heirs. This, however, speaks that the testator did not want to confer absolute estate on Sarjabai and in respect of her, he had at least that intention. If it were given to her absolutely, then on her dying intestate, the estate would pass according to the general law of inheritance to her heirs. But the bequest to her and to her heirs in tail male only shows that the testator intended to benefit her personally, for if the bequest to her and to her heirs in tail male were valid, it would have carried with it the enjoyment of the property by her during her life. Thus, even though the testator under the Will in question had also an intention to give estate to tail male, he has clear intention to confer life estate upon Sarjabai and that life estate could lawfully take effect despite conferral of an estate in tail mate which may not be given effect to being inconsistent with the Hindu Law of inheritance, In our opinion, under the Will, Sarjabai dad not get more than a life estate because the language is inconsistent with her having any different inheritance from that which the Will attempts to confer and that estate of inheritance (tail male) which it confers is void.

6. This limited estate conferred upon Sariabai under the Will (Ex. P-4) would not be enlarged into an aboslute estate under the Hindu Succession Act. 1956 even though she might have been possessed of that property at the time of the coming into force of that Act. This is as because of Sub-section (2) of Section 14 of the Act which says 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 (See G. Appaswami v. R. Sarangapani, AIR 1918 SC 1051. Para 19.)

7. The contention raised before this Court by the respondents that the conferral of malik-makbuza rights under Section 38 of the Abolition Act upon Sarjabai was fresh and independent grant to her has to be examined in the light of certain provisions of that Act. Section 2 (g) (1) of the Abolition Act defines 'home-farm' as Land recorded as sir and Khudkasht in the name of the proprietor in the annual papers for the year 1948-49. Section 3 (1) provides for vesting in the State save as otherwise provided for in that Act. Section 4 (2), on the interpretation of which the contention so raised is to be answered reads as follows :--

'4 (2) Notwithstanding anything contained in Sub-section (1), the proprietor shall continue to retain the possession of his home-stead home-farm land, and in the Central Provinces also of land brought under cultivation by him after the agricultural year 1948-49 but before the date of vesting.'

Another relevant Section 38 (now re-pealed) was as under :

'38 (1) Every proprietor who is divested of his proprietary rights in an estate or mahal shall, with effect from the date of vesting, be a malik-makbuza of the home-farm land in his possession.

(2) If there are more persons than one having interest in land held as sir or khudkasht immediately before the date of vesting, any such person may apply for a partition of his share in the land and the Revenue Officer may subject to rules made by the State Government in this behalf, after hearing the objection of the co-sharers, divide the land and apportion the assessment ;

Provided that no such partition shall be made if any question of title is raised until such question has been decided by a Civil Court.........'

The effect of Section 3 (1) of the Abolition Act is that the proprietor is divested of his proprietary rights in the estate, mahal, alienated village or alienated land and such proprietary rights shall pass from such preprietor and vest in the State for the purpose of the State free from all encumbrances from the date of notification. Various consequences ensue as a result of such vesting. These are detailed in Section 4 (1) and its different clauses. Yet Section 4 (2), which begins with a non obstante clause, allows the proprietor to continue to retain possession of his home-farm land. This means that the home-farm land of a proprietor is not taken away from him. Instead it is left with him. This is how this provision has been interpreted by the Supreme Court in Himmatrao v. Jaikisandas, 1966 MP LJ 986 : (AIR 1966 SC 1974) where Mudholkar, J. speaking for the Court said--

'It is not disputed on behalf of the respondents and indeed it cannot be disputed, that home-farm land is not affected by the provisions of the Act. In other words, such land was not acquired by the State but was left with the owners thereof.'

The effect of Section 38 of the Abolition Act is that the ex-proprietor with whom such home-farm land was left became its Malik-Makbuza. It is not as if this right known as Malik-Makbuza was conferred on the ex-proprietor in respect of his home-farm land in his possession. The expression 'Every proprietor who is divested of his proprietary rights in an estate or mahal shall, with effect from the date of vesting, be a Malik-Makbuza' occurring in Section 38 only shows that it is only descriptive of the right in which the home-farm land shall remain with the proprietor. No fresh grant is contemplated thereunder and it is by force of this provision itself that the proprietor becomes Malik-Makbuza of his home-farm land in his possession. Shri Choubey, learned counsel for the respondents, relied upon certain decisions of the Supreme Court based upon the provisions of U. P. Zamindari Abolition and Land Reforms Act (1 of 1951) and Bihar Land Reforms Act. He cited before us Rana Sheo Ambar Singh v. Allahabad Bank Ltd.. AIR 1961 SC 1790, Shivashankar v. Baikunth. AIR 1969 SC 971, Budhan Singh v. Babi Bux, AIR 1970 SC 1880 and Ram Prakash v. Mohammad Ali, AIR 1973 SC 1269. In our opinion, these decisions render little help to the respondents. Section 18 of the U. P. Act is titled as 'Settlement of certain land with intermediaries or cultivators as Bhumidhari' and it provides that certain class of land 'shall be deemed to be settled by the State Government with the intermediaries'. The provisions of the Bihar Act are similar to those of the U. P. Act. There is no such provision in either of those two Acts like Section 4 (2) of the M. P. Act. which expressly allows the home-farm land in possession of the proprietor unaffected. Section 4 (2) of the M. P. Act is in pari materia with Section 4 (21 of the Madhya Bharat Zamindari Abolition Act (XIII of 1951) which says that notwithstanding anything contained in Sub-section (1) (which enumerates various consequences of vesting), the proprietor shall continue to remain in Possession of his khudkasht land, so recorded in annual papers before the date of vesting Interpreting this provision of the Madhya Bharat Act. the Supreme Court in Meharban Sinsh v. Naresh Singh, AIR 1971 SC 77 has observed that the provisions of the U. P. Act and of the Bihar Act are not similar to the Madhya Bharat Act and. therefore, are of little assistance in construing the Madhya Bharat Act. As the provisions of the M. P- Act are similar to the Madhya Bharat Act. it necessarily follows from the decision in Meharban Singh's case (supra) that the reference to the decisions based upon the U. P. Act and upon the Bihar Act does not carry the respondents, case any further. We are therefore, of opinion that Sarjabai continued to retain possession of the 'sir land' (land in suit) not under any fresh grant under the provisions of the Abolition Act. The contention raised by the respondents thus fails.

8. The appeal is allowed. The impugned judgment and decree are set aside and the suit is decreed. The alienation made by Sarjabai in favour of respondents 2 to 9 is held not binding. On the appellant after her death. Since Sarjabai is now dead, the respondents are directed to put the plaintiff-appellant in possession of the suit lands. The appellant shall get his costs throughout from the respondents. Hearing fee as per schedule.


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