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Madhusudhan Mohapatra Vs. Gobind Sabat and anr. - Court Judgment

LegalCrystal Citation
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 60 of 1963
Reported inAIR1965Ori54
ActsSuccession Act, 1925 - Sections 82, 85, 95 and 96; Hindu Law
AppellantMadhusudhan Mohapatra
RespondentGobind Sabat and anr.
Appellant AdvocateG.N. Sengupta and ;L.K. Das Gupta, Advs.
Respondent AdvocateM.N. Das and ;G.B. Mohanty, Advs.
DispositionAppeal dismissed
Cases ReferredParkash v. Chandar Parkash
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....r.k. das, j.1. this second appeal by defendant no. 1 arises out of a suit for declaration of title and recovery of possession.2. bhagaban mohapatra had two sons ramhari and arta. ramhari died in 1944, leaving his widow sebati. he had no issue. arta died in 1942 leaving behind three sons, madhu, govinda and nitai the defendants 1, 3 and 5 respectively. ramesh, defendant no. 2 is the son of madhu and padma charan (d-4), is the son of govind. ramhari and arta separated in mess and property fifty years back. ramahari built a temple with his own funds and installed the deities radhakrishna and lalita therein and by a deed dated 8-11-21 endowed about seventy acres of land in favour of the said deities. on 19-1-42 ramahari executed a will (ext. 2) wherein he bequeathed all his properties, except.....

R.K. Das, J.

1. This second appeal by defendant No. 1 arises out of a suit for declaration of title and recovery of possession.

2. Bhagaban Mohapatra had two sons Ramhari and Arta. Ramhari died in 1944, leaving his widow Sebati. He had no issue. Arta died in 1942 leaving behind three sons, Madhu, Govinda and Nitai the defendants 1, 3 and 5 respectively. Ramesh, defendant No. 2 is the son of Madhu and Padma Charan (D-4), is the son of Govind. Ramhari and Arta separated in mess and property fifty years back. Ramahari built a temple with his own funds and installed the deities Radhakrishna and Lalita therein and by a deed dated 8-11-21 endowed about seventy acres of land in favour of the said deities. On 19-1-42 Ramahari executed a will (Ext. 2) wherein he bequeathed all his properties, except those endowed in favour of the aforesaid deities. From the title of the Will (Ext. 2) it appears as if Radhakrishna is the only legatee but when we go to the contents of the document, we find disposition has also been made in favour of Sebati, the widow of the testator. The result of the appeal depends mainly upon the construction of the will. It was the case of the plaintiff that Sebati was given absolute right by the said will and on the strength of the same, she by a deed of gift dated 29-3-51 (Ex. 3] made a gift of some properties including the suit properties in favour of Adwait Charan Das (Plaintitff 2) describing him as the Chella of Ramhari. Sebati died in 1953. On 4-4-54 plaintiff 2 executed a sale-deed (Ext. 1) in respsct of the suit property which is a residential house, for a sum of Rs. 500/-in favour of the plaintiff No. 1. Sometime after the execution of this document, there was dispute between plaintiffs Nos. 1 and 2 on one side and the defendants on the other regarding the possession of the suit-house and the matter came up before a Magistrate under Section 145, Cr. P. C. The Magistrate was unable to decide as to who was in actual possession and took action under SGC. 146, Cr. P. C. and by an order dated 17-6-53 directed the parties to get their title declared by a competent Civil Court and kept the property under attachment. The plaintiffs thus filed the present suit for necessary declaration of title to the suit property.

3. Defendants 2, 3 and 4 did not contest the suit and remained ex parte. The plea of the other two defendants J and 5 was more or less the same. They challenged the genuineness of the will and the transfers made in favour of the plaintiff and claimed the property as the next heirs of Ramhari. They disputed the adoption of the second plaintiff Adwait as a Chella of Ramhari. Their case was that defendant 1 was in possession of the suit house for over thirty years and had acquired title by adverse possession. They also denied the partition by metes and bounds between Ramhari and Arta. Their further case was that Ramhari and Sebati became Vaishnabas and had thus renounced the world and met with civil death and as such they had no legal right to make the aforesaid transfers and such transfers are illegal and are of no effect.

4. The trial Court found that the will Ext. 2 was 3 genuine and valid document and Sebati acquired absolute right in respect of the property under the will. Exts. 3 and 1 conferred good title on the respective transferees and neither Ramahari nor Sebati renounced the world and met with any Civil Death. There was a family partition prior to the death of Ramhari. He rejected the case of defendant 1 that he was in adverse possession of the suit-house and acquired title over the same. The trial Court decreed the plaintiffs suit by declaring the title of the plaintiff 1 to the suit property and held that he was entitled to the possession of the suit-house.

5. On appeal by defendant 1 alone, the appellate Court confirmed the findings of the trial court and upheld its decision, it is against this confirming decision of the lower appellate Court the defendant 1 has preferred this second appeal.

6. Mr. Dasgupta while challenging the judgment under appeal contended; (1) That on a proper construction of the will Radhakrushna alone had been given the property. Sebati will have no absolute right but she may at best have a life-estate and the transfers made by her under Ext. 3 in favour of plaintiff 2 will not enure beyond her lifetime. Therefore, upon the death of Sebati in 1953, the title of Adwait, plaintiff 2 became automatically extinguished and therefore Adwait had no title to convey to plaintiff 1 by sale-deed (Ext. 1) dated 4-4-54 and thus neither of the plaintiffs had any title to the suit property on the date of the suit, and their case must therefore fail. (2) Both Ramhari and Sebait having renounced the world and having taken to the religious order of Vaishnavism, they had met with Civil death and thus had no power of disposition in respect of suit property. (3) That the' defendant No. 1 was in possession of the suit house for more than twelve years in his own right and had thus acquired title by adverse possession: and even assuming that defendant No. 1 was in permissive possession of Ramhari, the latter having died in 1944 and the defendant 1 having been continuing in possession of the property in his own right, he must be taken to have been in adverse possession at least since the death of Ramhari in 1944 and the present suit having been filed in the 1958, defendant No. 1 had already acquired title by adverse possession by being in possession for a period more than 12 years.

7. For the sake of convenience I shall first dispose of the last two points. To make out a case that Ramhari became Vaishnava and met with a civil death the appellant relied upon the statement of Ramhari as mentioned in the will. The will was executed in the year 1942. All that Was said in the will is that Ramhari entertained a desire to adopt Vaishnab Dharma (Ambhe Vaishnaba Dharma Grahan Karibaku Basana Kariachhu) and not that he had already became a Vaishnab. This after all is only an expression of a desire to adopt Vaishnavaism and cannot conclusively establish that he in fact renounced the world and became a vaishnava. From a further recital in the document, it would appear that he reserved to himself the power to deal with all his properties including the endowed properties until his death. It is well established by authorities that a mere expression of a desire to become a Sanyasi either orally or in writing is not enough to make out a case of renunciation of the world, so as to bring about a Civil death in the eye of law, but the formalities necessary for acquiring the status of a Sanyasi have to be undergone. There must be materials to show that he intended to cease all connections with his properties. In a case reported in Satyanarayana Avashani v. Hindu Religious Endowments Board, Madras, AIR 1957 Andh-Pra 824 their Lordships held that the assumption of the name of a Sanyasi could not change the status and bring about a civil death of a person unless there was an initiation by a Guru into the order of Sanyasin by appropriate Mantras.

8. In a case reported in Baideo Prasad v. Arya Pritinidhi Sabha, AIR 1930 All 643 a similar view was also expressed. Their Lordships held that the mere fact that a person declares that he has become a Sanyasi or that he has described himself as such, or wears clothes ordinarily worn by the Sanyasis would not make him a perfect Sanyasi. He must not only retire from the worldly interests and become dead to the world, but to attain this, he must perform the necessary ceremonies without which the renunciation will not be complete.

9. In a case reported in Parsottam Dahyabhai v. Desaibhai Chintabhai, AIR 1932 Com 459, a person became Saayasi after executing a will. The question that came up for consideration was whether it was competent for him to deal with the property after he became a Sanyasi. From the terms of the will in that case, as In this case, the testator retained control over his property during his lifetime. It was held that whatever ceremonies the testator might have gone through, he neither divested himself of the property nor did he intend to do so and as a matter of fact he continued to retain control over It after his alleged civil death. It was further held that under the circumstances, it was competent for the testator to deal with his property even after he became a Sanyasi.

10. In a case reported in Kondol Row v. Swamulavaru, AIR 1918 Mad 402, a similar question came up for consideration. It was held that the essential of Sanyashin according to the Hindu law is that the postulant for Sanyasin should perform the necessary rites, ceremonies prescribed by the Sastras and abandon all worldly concerns down to even a desire for them. The mere adoption of external symbols of Sanyashin is not enough. In that case the Sanyasi executed a will but did not deliver the same to the beneficiary named therein but retained the same. Their Lordships held that the retention of the will by the testator is an important test showing that the testator did not intend to abandon the property during his natural life. In the present case, by express terms of the will, Ext. 2 itself, the testator reserved to himself his absolute right to deal with all his properties including those endowed to the deities as early as in 1921. Nothing has been shown on behalf of the appellant to make out That in fact the testator renounced the world and abandoned his properties and met with a civil death. As 1 have said, at best it could be said that he only entertained a desire to become a Sanyasi. Under the circumstances, it must be held that the testator did not meet with a Civil death af any time and in any case not at the time when he executed the will Ext. 2. The position is also the same so far as Sebati is concerned.

11. The other contention that the appellant has acquired title by adverse possession must be rejected on the findings of fact reached by the Courts below. In answering issue No. 8, the trial court has given a clear finding that 'in consideration of the evidence on record it does not appear probable that defendant No. 1 (appellant) was in possession of the suit-house at any time.' Further, it appears from the judgment of the trial Court (para 11) that the learned lawyer for defendant 1 has conceded that he had no case on the strength of his possession of the suit house. On this point, the appellate Court also endorsed the findings of the trial Court In course of discussion he made reference to the evidence of defendant 1 where he admitted in evidence that Ramhari's widow Sebati possessed the properties left by her husband though at the same time he asserted that he possessed the suit house with the permission of Ramhari. The contention on behalf of the appellant was that after the death of Ramhari in 1944, defendant No. 1 adversely possessed the same for a period of more than 12 years. As seen already, defendant No. 1 admitted in his evidence that Ramhari's widow possessed all the properties left by Ramhari and that must necessarily include the suit house. If defendant 1 af all remained in possession, it must have been with the express or implied permission of Sebati who died in the year 1953 and the suit was filed in the year 1958. Therefore he had not been in possession for more than 12 years to acquire any title to the suit property. The plea of adverse possession must accordingly be rejected.

12. We shall now turn back to the most important contention, viz., the construction of the will, Ext. 2. The will is in Oriya and is dated 19-1-42. In the title head of the will Radhakrushna Mohapatra alone has been mentioned as the legatee though in the body of the will Sebati was treated as one of the beneficiaries. The relevant portion of the will when rendered into English reads as follows:

'My present age is 72 (seventy-two) and that of my wife Sebati 67. We have no issue of our own. Champa Sahuani the mother of the legatee remained with the from her childhood. I treated her as my own daughter, maintained her and gave her in marriage and after marriage she is staying happily in her father-in-law's house. The legatee is my said daughter's son. 1 have now reached old age. With a view to avoid dispute In future, I am settling my ancestral moveable and immovable properties as follows:

'I have no other heir except the legatee, Radhakrushna my grand-son. I have adopted no son, nor have any desire to do so. I have a desire to adopt Vaishnav Dharma. I have previously built a temple and installed the deities Radhakrishna and Lalita therein and by a registered document dated 8-11-21, endowed certain properties in favour of the said deities and the said endowment will work out for ever by the arrangement made in that behalf. In respect of the properties other than the endowed properties I make the following arrangements.

During my life time in all the properties including the endowed properties, I shall have full power as before. God forbid, if I predecease my wife, then my wife, will have the right to gift and sell all the aforesaid properties of mine. After the death of both myself and my wife, our aforesaid grandson Radhakrishna Mohapatra will have the right of gift and sale of the said properties and will possess the same with all the rights of a Mallk, excepting the aforesaid endowed properties. During my lifetime I can alter or cancel this will. I also retain full right to make necessary gifts according to my will to such good institutions with which f am presently concerned or will be so concerned in future. I have no other heir except the legatee and if anybody puts up any claim that will be rejected on the strength of this will.'

13. Mr. M.N. Das, learned counsel for the respondent contended that though absolute right was not conferred in so many words on Sebati, the testator could never have intended to deprive his wife of the full rights of an owner- and to vest such right on a stranger like Radhakrishna who is not in any way related to him by blood or can class himself as a legal heir. He relied upon Section 95 of the Succession Act and contended that unless a restricted interest was intended to be given to the legatee, the latter was entitled to the whole interest of the testator and in the absence of any restriction on her right in the will, Sebati was entitled to the full rights of an owner and not merely to the interest of a !ifs-estate, as contended on behalf of the appellant. According to him the bequest in favour of Sebati being an absolute one, the gift over the same property in favour of Radhakrishna is void. He further contended that the disposition in Ext. 2 was in the nature of an alternative bequest. It was meant to be given absolutely to Sebati alone if she survived the testator and in case she did not so outlive, but predeceased him, then absolute right in the entire properties was to be conferred on Radhakrishna alone. He further contended that if Section 85 has to be properly applied to the present case and no part cf the will is to be rejected then and the only other way to work out the will is to give absolute right to Sebati and whatever property would be left out after her lifetime will go over to Radhakrishna who would exercise absolute right over the same as full owner.

14. As already stated Mr. Dasgupta wanted to read the will with the aid of Section 88 of the Succession Act and contended that there could not be two absolute bequests in respect of the very same property in favour of both Sebati and Radhakrushna and if the two clauses of the will are irreconcilable and cannot stand together, then the last clause which provides absolute gift in favour of Radhakrishna alone shall stand. His further contention is that if the wishes of the testator are to be given effect to as far as possible, and no part of the will is to be rejected, then it will mean only a life-estate for Sebati and absolute estate for Radhakrishna.

15. As I have said, the result of this appeal depends mainly on the construction of the terms of the will. It is well settled by authorities that the cardinal principle of the construction of a will is to determine the dominant intention of the testator and that has to be gathered not by attaching importance to isolated expressions, but by reading the will as whole with all its provisions and ignoring none of them as redundant or contradictory. Bajrang Bahadur Singh v. Bakhtraj Kuer, AIR 1953 SC 7. In fact that is the essence of Section 82 of the Indian Succession Act, which says that the meaning of any clause in a will is to be concluded from the entire Instrument and all its parts are to be construed with reference to each other. In this view of the position of the law, the will as a whole has to be examined. We have already seen that the testator had entertained a desire that his wife should predecease him. That was in consonance with the ordinary Hindu sentiment and was uppermost in his mind and with that in view as will appear from the title of the will possibly Radhakrishna alone was described as the sole legatee. When however, we go to the body of the document it is found that the testator expressly stated that the vesting on Radhakrishna was to take place only after the death of both he and his wife (Ubhayanka Ante) and in case his wife survived him, she will have the full right to dispose of the property under bequest, by way of gift or sale (Dana Bikraya Adhikar Paibe). Learned Counsel for the appellant contended that if the testator wanted to vest an absolute estate on his wife what prevented him from stating so in express terms in the will, though such absolute ownership in express terms 'the right of a Malik' was given to Radhakrishna the legatee and it was specifically mentioned in the will 'Sarba Satwa Malik Hoi Dakhalkar Hebe'. Thus he wants to draw the distinction between two kinds of rights that was in the contemplation of the testator, that is, one is a life-estate to Sebati and the other is an absolute estate to Radhakrishna and according to him, that is the only way by which both the clauses in the will can be reconciled and full effect can be given to the wishes of the testator. In the will the testator in clear terms had stated that the property would pass on Radhakrishna only after the death cf both he and his wife and also it was stated therein in clear terms that the wife, if she survived, would have the right to gift and sell in respect of all the property. It cannot be disputed that the right to gift or alienate is one of the incidents of ownership. Section 95 of the Indian Succession Act provides that where property is bequeathed to one person, he becomes entitled to the whole interest of the testator therein unless it appears from the will that only a restricted interest was intended to be given. In other words if the will would not show that only a restricted interest was intended to pass, the presumption would be that the entire interest of the testator would pass on to the legatee. Section 8 of the Transfer of Property Act lays down similar construction as to the transfer of an interest in a particular property. No doubt, the will so far as Sebati is concerned, did not in so many words vest an absolute estate in her as had been done in express terms in the case of Radhakrishna. There are, however, authorities in support of the view that when a power of disposition is conferred on the donee that indicates that the testator intended to create an absolute estate in favour of the donees, Jogeswar Narain v. Ramchandra Dutta, 23 Ind App 37 (PC). There are cases also where even when an absolute estate has been vested in a legatee in clear terms. Courts have taken the surrounding circumstances Into consideration and have felt no hesitation to construe a life estate in respect of a particular legatee. The terms of a will have to be examined carefully to determine the real intention of the testator. The mere fact, however, that the widow was not vested in express terms the rights that the testator intended to confer, is not enough to come to the conclusion that she possessed only a limited interest.

16. In a case reported in Ramgopal v. Nandalal, AIR 1951 SC 139, it was held that there is no warrant for the proposition that when a grant of an immoveable property is made to a Hindu female, she does not get an absolute or alienable interest in such property unless such power was expressly conferred upon her. The position is that to convey an absolute estate to a Hindu female, no express power of alienation need be given. It is enough if words are used of such amplitude as would have full rights of ownership. The proposition was also accepted in a later decision of the Supreme Court reported In Nathoo Lal v. Durga Prasad, AIR 1954 SC 355. In the case reported in AIR 1953 SC. 7, cited above, their Lordships held that in cases where the intention of the testator was to grant an absolute estate, the attempt to reduce the powers of the owner by imposing restraint on alienation would certainly be repelled on grounds of repugnancy. But where the restrictions are the primary things which the testator desires and they are consistent with the whole tenor of the will, it is a material circumstance to be relied upon for displacing the presumption of absolute ownership. In that case though certain beneficiaries and their heirs in succession under the will were given the rights of a Malik, they were not given any power of alienation. Their Lordships held that it was the intention of the testator not to give the power of alienation and the testator obviously wanted to create a series of life-estates one after another. Their Lordships took into consideration the restraint to alienation as a pointer to determine whether it vested an absolute estate or only a limited estate.

17. In a case reported in Paika Bai v. Anyabai, AIR 1952 Nag 327 it was held that conferment of full powers to alienate including the power to dispose of the property in any way on a person who would according to the law of inheritance have no such power is a strong circumstance indicative of the intention of the testator to confer an absolute estate. Thus, it may be now taken as well settled that when a grant of an immovable property is made to a Hindu female, no presumption of a limited or inalienable rights can be drawn nor any express words are necessary to vest absolute right. As seen above, the right to gift or sell are some of the essential ingredients of absolute ownership and such right has been expressly given in the will to Sebati though no absolute right in the property had been given in so many words. Moreover, there is no particular reason why the testator would deprive his own wife of the full rights of ownership and would freely give the same to a stranger like Radhakrishna. No doubt, he called the legatee as his heir, but that was probably because he had no heir of his own and Radhakrishna happened to be the son of his foster daughter, Champa. It may be remembered that in clear terms he said that Radhakrishna will come to picture only after the death of his wife who had been given the full power to gift and sell his properties. There was NO limitation or conditions on which Sebati could dispose of such properties by way of gift or sale and in effect she had been given all the rights in respect of the properties that the testator himself possessed. While construing a will the Court has to place himself in the position of the testator and to quote the words of the Privy Council in Rajendra Prasad v. Gopal Prasad, AIR 1930 PC 242:

'The Court is entitled to put itself into the testator's arm-chair.'

In view of this position, I think the only reasonable construction that could be put on the will so far as Sebati is concerned was that she was given an absolute estate and not a life-estate as was contended by Mr. L.K. Dasgupta.

18. On behalf of the appellant, learned Counsel mainly relied upon the decisions reported in Lakshmi Ammal v. Allauddin Sahib, AIR 1962 Mad 247, Subbamma v. Ramanaidu, AIR 1937 Mad 476, and Gulbaji Ajisigi and Co. v. Rustomji, AIR 1925 Bom 282 (2) to make out a case that only a life estate was intended to be vested in Sebati. But these cases are closely distinguishable in the case reported in AIR 1962 Mad 247 the testator In a will provided that after him his wife should possess two specific items of property with powers of alienation and gift. It was further provided that after the death of his wife each of his two daughters would take one item of the said property. There the question was whether there were two absolute gifts in respect of the same property one in favour of the wife and the other in favour of the two daughters, and they being irreconcilable, whether can stand together or the later one would prevail in accordance with Section 83 of the Indian Succession Act, it was clear from the terms of the will that the properties after the life-time of the wife would go without any diminution to each of the daughters. His Lordships took the view that when the testator took care to indicate that the very properties without any diminution after the lifetime of his wife would go over to each of his daughters, it was clearly in the mind of the testator that the wife's estate was only a limited one and not an absolute estate. In the present case, however, the conditions of the gift are different, Sebati the wife of the testator was given full power to deal with the property by way of sale or gift and if that power was exercised, necessarily the properties under bequest could be so diminished so as to leave little or nothing before it reached the hands of the legatee, Radhakrishna, after her death. There the learned Judge has said that the testator had in his mind the interest of his daughters as prominently as the interest of his wife, all the three being his heirs. Here, however Radhakrishna is a stranger to the family though no doubt he had been described as an heir. There is absolutely no reason why the interest of Radhakrishna would stand as prominently as that of his wife before the eyes of the testator.

19. In the case reported in AIR 1937 Mad 476, the testator's widow was to enjoy the properties and after her lifetime the properties were to go in certain ratio to the son's daughter and daughter's son. The question was whether the widow who sold some property could sell anything more than her life interest even for legal necessities so as to bind the estate. Varadacharier, J. held that since in the will the gift over to the grandchildren was of the entire properties and not a gift by mere defeasance, the prior gift to widow was of the limited interest. In the will before me the gift to Radhakrishna does not contemplate of the entire properties but only such properties as may be left over after the disposals made by the widow according to her wishes, though it has not been so stated in clear terms.

20. In the case reported in AIR 1925 Bom 282 (2) the property was given as a gift to Rustomji the second son of the testator and a later clause provided that should Rustomji die leaving a son, such a son be afterwards the owner in respect of the property etc. Their Lordships held that paras 8 and 10 of the will cannot possibly stand together and they reconciled both by holding that a life-estate was meant for Rustomji. Here, however, there is no question of any such clause in the will.

21. Once it is held that Sebati had absolute interest in the property, it would follow that she had full disposing power to be valid even beyond her life-time. The genuineness of the transaction in Exts. 2 and 1 is beyond challenge. In that view of the matter the plaintiff No. 1 must be held to have validly obtained title from plaintiff No. 2 by the sale-deed, Ex. 1 and had full title to the property on the date of the suit.

22. I may also mention that in Ext. G, a Dan Patra, executed by Sebati in favour of Radhakrishna on 8-3-1946she has clearly asserted that she was the full owner of the property and the donee Radhakrishna was to come only after her.

23. Mr. Das for the respondent cited some authorities to contend that when in an earlier bequest an absolute estate was intended to be vested on the donee, any subsequent devise on the termination of that donee's interest and not in defeasance of it, is void and inoperative. Accordingly he contended that after the death of Sebati who had acquired an absolute interest in the property under bequest, Radhakrishna would get nothing under the will. Having read the will I am of the view that the j testator clearly intended that Radhakrishna would take only that part of the properties that may remain after she (Sebati) had disposed of the properties according to her wishes, though it was not said so in express terms. Such a bequest is clearly recognised in law; Parkash v. Chandar Parkash, AIR 1932 Lah 215 and that was also one of the alternative contentions put forth by the learned Counsel for the respondent.

24. In view of the aforesaid position, the decisions of the Courts below are confirmed and the appeal is dismissed with costs.

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