# DR. MAHESH CHAND SHARMA v. SMT. RAJ KUMARI SHARMA AND OTHERS

- **Citation:** [1995] Supp. 6 S.C.R. 41
- **Court:** Supreme Court of India
- **Decided:** 1995-12-01
- **Case number:** Civil Appeal Nos. 547-48 of 1991
- **Bench:** B.P. Jeevan Reddy, S.B. Majmudar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-mahesh-chand-sharma-v-smt-raj-kumari-sharma-and-others-13641
- **Pages:** 36

## Headnote

B
Indian Succession Act, 1925-Section 119-Applicability-Date of vesting of legacy-Property bequeathed by the testator to his wife for life and after
her death to his legal heirs-On the date of testator's death son was the only
legal heii--Held, legacy becomes vested in the son on the death of testator.
C
Indian Succession Act, 1925-S ection II 1-Exception-Applicability-J'
A specified individual"-Meaning of-Cannot refer to or mean the testator.
Indian Succession Act, 1925-Section 121>-Applicability-Applies only
in case of happening of a specified uncertain event-Death is not an uncertain D
event.
Transfer of Prope1ty Act, 1882-Section ~"Transfer''-Meaning a/-
Settlement dwing pendency of suits between mother and son-Son challenging validity of Will made in favour of mothe1-Mother settling dispute by
accepting son's title to the property in lieu of monthly maintenance-Held, it E
is not a transfer of the property.
Hindu Succession Act, 1956-Section 14(1) and (2}-Applicability
of-Right of residence to a Hindu female alongwith a sum of money in lieu
of maintenance-Whether ripens into full ownership on commencement of F
the Act.
Hindu Succession Act, 1956-Section 14(1)-.J'Possessed''-Meaning
of-Whether actual or physical possession is necesswy.
Limitation Act, 1963-A.rticle 65-Plea of adverse possessiott-Nature G ;
or-Mixed question of law and fact-All facts necessary to establish adverse
possession must be pleaded.
Constitution of Indirr-A.rtic/es 133 and 136-Finding of Tlial Court on
limitation no contested in appeal-Held, plea of limitation cannot be raised
before the Supreme Court.
H
41
A
B
c
42
SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
On 10.4.1942, one R made a Will bequeathing one of his properties
(Doctor's Lane property) to his wife S for life and to his legal heirs after
her death. The Will prohibited any transfer of the property by S. R died
in 1953 leaving behind his wife, one son (first defendant) and four
danghters. At the time of his death, as per the prevalent law, only the son
was the legal heir. There was litigation between the son and the mother,
and as many as seven suits were filed. The son claimed that R has made
another Will dated 26.9.1950 superseding his earlier Will. The suits were
finally settled on 27.1.1955 and the mother accepted the title of the son
over the Doctor's Lane property. The mother was given a right of residence
in the first floor of the property. The son was to pay S maintenance
allowance of Rs. 125 per month and in the event of the mother's decision
not to reside in the property, a maintenance allowance of Rs. 150 per
month was to be paid to her. After the death of the mother, the son's wife
was to become the owner of the property.
D
The son, who was abroad, appointed the second defendant as bis
general power of attorney in respect of his properties in India. The second
defendant sold the Doctor's Lane property to his brother (third defendant)
and his own two sons (defendant Nos. 4 and 5).
E
F
G
S died in 1972, after coming into force of the Hindu Succession Act,
1956. One of the daughters filed a partition suit in the High Court in
respect of all properties left behind by R and S claiming l/stb share in the
property on the ground that by virtue of the provisions of the Hindu
Succession Act, the daughters of R also became the legal heirs of his
property. The learned Single Judge dismissed the suit of the daughter in
respect of the Doctor's Lane Property. In respect of all other properties
his suit was decreed.
The daughter appealed under clause 10 of the Letters Patent against
the order of the Learned Single Judge. The appeal of the daughter was
allowed by the Division Bench which held that :
(a) The Will dated 10.4.1942 in favour ofS is true, valid and dTective;
(b) the Will dated 25.9.1950 alleged to have been made in favour of
the son was not proved;
H
(c) the interest created in S was a life estate and not a widow's estate
M.C. SHARMA v. R.K. SHARMA
43
~·
and therefore, could not be

## Text

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DR. MAHESH CHAND SHARMA
A
v.
SMT. RAJ KUMAR! SHARMA AND OTHERS
DECEMBER 1, 1995
[B.P. JEEVAN REDDY AND S.B. MAJMUDAR, JJ.]
B
Indian Succession Act, 1925-Section 119-Applicability-Date of vesting of legacy-Property bequeathed by the testator to his wife for life and after
her death to his legal heirs-On the date of testator's death son was the only
legal heii--Held, legacy becomes vested in the son on the death of testator.
C
Indian Succession Act, 1925-S ection II 1-Exception-Applicability-J'
A specified individual"-Meaning of-Cannot refer to or mean the testator.
Indian Succession Act, 1925-Section 121>-Applicability-Applies only
in case of happening of a specified uncertain event-Death is not an uncertain D
event.
Transfer of Prope1ty Act, 1882-Section ~"Transfer''-Meaning a/-
Settlement dwing pendency of suits between mother and son-Son challenging validity of Will made in favour of mothe1-Mother settling dispute by
accepting son's title to the property in lieu of monthly maintenance-Held, it E
is not a transfer of the property.
Hindu Succession Act, 1956-Section 14(1) and (2}-Applicability
of-Right of residence to a Hindu female alongwith a sum of money in lieu
of maintenance-Whether ripens into full ownership on commencement of F
the Act.
Hindu Succession Act, 1956-Section 14(1)-.J'Possessed''-Meaning
of-Whether actual or physical possession is necesswy.
Limitation Act, 1963-A.rticle 65-Plea of adverse possessiott-Nature G ;
or-Mixed question of law and fact-All facts necessary to establish adverse
possession must be pleaded.
Constitution of Indirr-A.rtic/es 133 and 136-Finding of Tlial Court on
limitation no contested in appeal-Held, plea of limitation cannot be raised
before the Supreme Court.
H
41
A
B
c
42
SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
On 10.4.1942, one R made a Will bequeathing one of his properties
(Doctor's Lane property) to his wife S for life and to his legal heirs after
her death. The Will prohibited any transfer of the property by S. R died
in 1953 leaving behind his wife, one son (first defendant) and four
danghters. At the time of his death, as per the prevalent law, only the son
was the legal heir. There was litigation between the son and the mother,
and as many as seven suits were filed. The son claimed that R has made
another Will dated 26.9.1950 superseding his earlier Will. The suits were
finally settled on 27.1.1955 and the mother accepted the title of the son
over the Doctor's Lane property. The mother was given a right of residence
in the first floor of the property. The son was to pay S maintenance
allowance of Rs. 125 per month and in the event of the mother's decision
not to reside in the property, a maintenance allowance of Rs. 150 per
month was to be paid to her. After the death of the mother, the son's wife
was to become the owner of the property.
D
The son, who was abroad, appointed the second defendant as bis
general power of attorney in respect of his properties in India. The second
defendant sold the Doctor's Lane property to his brother (third defendant)
and his own two sons (defendant Nos. 4 and 5).
E
F
G
S died in 1972, after coming into force of the Hindu Succession Act,
1956. One of the daughters filed a partition suit in the High Court in
respect of all properties left behind by R and S claiming l/stb share in the
property on the ground that by virtue of the provisions of the Hindu
Succession Act, the daughters of R also became the legal heirs of his
property. The learned Single Judge dismissed the suit of the daughter in
respect of the Doctor's Lane Property. In respect of all other properties
his suit was decreed.
The daughter appealed under clause 10 of the Letters Patent against
the order of the Learned Single Judge. The appeal of the daughter was
allowed by the Division Bench which held that :
(a) The Will dated 10.4.1942 in favour ofS is true, valid and dTective;
(b) the Will dated 25.9.1950 alleged to have been made in favour of
the son was not proved;
H
(c) the interest created in S was a life estate and not a widow's estate
M.C. SHARMA v. R.K. SHARMA
43
~·
and therefore, could not be surrendered in favour of the son;
A
(d) the alleged surrender under settlement dated 27.1.1955 was not
totai and complete and, therefore, no surrender in the eyes of law;
(e) the Will dated 10.4.1942 contemplates that the property shall
devolve on legal heirs of Ron the death of his wife and at the time of wife's B
death, there were five legal heirs of R due to the operation of Hindu
Succession Act, 1956 and therefore, the property would devolve on all five
heirs; and
(I) the Will dated 10.4.1942 was a bequest to a class and therefore c
the exception to the Section 111 of the Indian Succession Act, 1925 was
applicable and not Section 119 or Section 120.
On appeal by the third defendant who had purchased the property;
partly allowing the appeal, this Court
HELD : 1.1. The present case squarely falls within the four corners D
of Section 119 of the Indian Succession Act, 1925. It fits in neatly into
Illustration (iii) to Section 119. By virtue of Section 119 of the Indian
Succession Act, the bequest to "the legal heirs of the testator" vested in the
first defendant, he alone being the legal heir of the testator on the date of
death of R (testator). The vesting of bequest to "the legal heirs of the E
testator" was not postponed till the death of interposer, S. [63-H, 64-A)
1.2. Once the bequest to 'the legal heirs of the testator" provided by
the Will got vested in the first defendant on the date of the death of the
testator, there is no question of the first defendant being divested thereF
from. On the death of S, the first defendant became entitled to possession
of the Doctor's Lane house which had already vested in him. [64-C]
Chilanakuri Pullappa v. Gunika Bayanna, AIR (1962) AP 54 and P.
Somasundaram v. K Rajammal, AIR (1976) Mad 295, referred to.
2.1. For the exception to Section 111 of the Indian Succession Act, G
1925 to apply, it must first be shown that the bequest is to a class of
.;
persons. Then it must be shown that the said class of persons is described
as standing in a particular degree of kindred to a specified individual. The
third requirement is that the possession of the bequest is deferred until a
time later than the death of the testator for one or the other reason. If the H
.#
44
SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A
above ingredients are satisfied then the property bequeathed devolves
upon such persons of the class as are alive on the date of death of the
interposer (prior bequest) and upon the representatives of such of those
who may have died after the death of the testator but before the death of
the interposer. (65-C]
B
2.2. The words "a specified individual" as used in exception to Section
Ill of the Indian Succession Act, 1925 cannot refer to or mean "the
testator". The very Explanation uses both the words 'testator" and "a
specified individual". If the idea behind the exception was to refer to
testator, then it would not have employed the words "a specified inC
dividual'. Nothing was more simpler than using the words 'the testator"
instead of the said words actually used. This means that the words "a
specified individual" refer to an individual other than the testator. This
understanding is re-enforced by the several illustrations appended to the
section. In each of those illustrations, the class of persons is described as
children (or the relatives ol) a person other than the testator. None of them
D speaks of a class of persons related as aforesaid to the testator. (65-E-F]
2.3. In the present case, the legal heirs of testator are described as
standing in a particular degree of kindred to the testator - and not to "a
specified individual". Therefore, the exception to Section 111 of the Indian
E Succession Act, 1925 becomes inapplicable in the present case. [65-G-H]
3. A mere reading of Section 120 of the Indian Succession Act, 1925
would indicate that it is not attracted in the present case. The death of S
was not a specified uncertain event. In the present case, the bequest is not
a contingent one. If so, the bequest is not postponed within the meaning
F
of Section 120. [66-t'] _
N. Krishnammal v. R. Ekambaram & Q,,._, [1979] 3 SCC 273, distinguished.
4. The settlement of 1955 does not amount to a transfer and is not
G incompetent and ineffective for being inconsistent with the terms of the 1942
Will. One must look at the situation obtaining in the year 1955 in order to
examine if the settlement amounted to a transfer. Seven suits were pending
between mother and the son. The validity of 1942 Will was in dispute
because the son relying on another Will of R, said to have been executed in
H the year 1950, superseding the 1942 Will. No Court had pronounced till then
M.C. SHARMA v. R.K. SHARMA
45
as to which Will was the last Will and testament of R. The right given to S A
under the 1942 Will was itself in dispute in those suits. Jn such a situation,
a compromise, a settlement was arrived at between the parties, whereunder
S acknowledged and accepted the first defendant's title to the Doctor's Lane
house in lieu of right of residence in the first floor and cash maintenance of
Rs. 125 per month. The settlement does not say which of the said two Wills B
is true and valid. The settlement was de ho1'· the claims and contentions of
both the parties including their claims and contentions under the respective
wills espoused by them. (68-C-E]
5.1. A right of residence given for life to a female Hindu in a property
plus a sum of money in lieu of her right to maintenance ripens into full C
ownership on the coming into force of the Hindu Succession Act, 1956.
Under the 1955 settlement, S was given not only the right of residence in
the first floor but also a sum of Rs. 125 per month in cash towards her
maintenance. It was further provided under the settlement that if S did
not intend to reside in the aforesaid portion, the first defendant shall pay D
her Rs. 150 per month as maintenance instead of Rs. 125 per month. This
clearly indicates that the right of residence was given to her in lieu of and
in recognition of her per-existing right to maintenance. Once this is so, it
is sub-section (l) of Section 14 of the Hindu Succession Act, 1956 that
applies and not sub-section (2). (69-E]
Tu/asamma v. Sesha Reddi, (1977] 3 SCC 99; Mangat Mal v. Pumii
Devi, (1995] 6 SCC 88, relied on.
5.2. The expression "possessed" in Section 14(1) of the Hindu Succession Act, 1956 means and refers to a right to possession and not
necessarily actual or physical possession. So long as she has a right to
possession, the mere fact the the female Hindu was not in physical possession matters very little. (70-G]
M¥lla's Hindu Law (16th Edn.) at p. 810, referred to.
5.3. By virtue of Section 14(1) of the Hindu Succession Act, 1956 the
limited estate of S (given to her under the 1942 Will) would have ripend
into absolute estate if S had been "possessed" of the entire Doctor's Lane
house on the date of commencement of the Hindu Succession Act. Rut she
E
F
G
was not. She had given up her possession and right to possession over the
first floor under the 1955 Settlement. Atcordingly, it must be held that on H
46
SUPREME COURT REPORTS [1995j SUPP. 6 S.C.R.
A the date of coming into force of the Hindu Succession Act, 1956, S became
the absolute owner of the first floor of the Doctor' lane house property.
[71-E-F, 72-A)
B
c
5.4. Section 14 of the Hindu Succession Act, 1956 operates on its own
force once the facts ret1uisite for attracting its application are established.
Though there is no specific reference to Section 14 of the Hindu Successioi1
Act in the plaint, having regard to the law applicable to pleadings (Order 6
Rule 2 of the Civil Procedure Code), it would not be just and proper not to
give effect to the said highly salutary provision on the above ground which,
in the facts and circumstances of the case, is a mere technicality. (70-D)
Kedar Lal Seal &Anotherv.Hari Lal Sea4 AIR (1952) SC 47, referred
to.
6.1. It is well settled that the plea of adverse possession is not a pure
question of law but a mixed question of fact and law. It is also well
D established that the party pleading adverse possession must state with
sufficient clarity as to when his adverse possession commenced and the
nature of its possession. A person pleading adverse possession has no
equities in his favour. Since he is trying to defeat the rights of the true
owner, it is for him to clearly plead and establish all the facts necessary
E
to establish his adverse possession. (73-E, 75-E]
6.2. The defendants' case was that the 1942 Will was not true and that
after the death of R first defendant came into possession of all the properties including the Doctor's Lane house and was in adverse possession
thereof since 1954 the plea of limitation was not based upon any other
F
ground or fact. The defendants have not suggested that their adverse possession commenced at any later point of time. Once it is held that (a) the
1942 Will is true, and (b) the remainder bequest vested in the first defendant on the death of R, the bottom gets knocked out of this plea. (73-C)
6.3. So far as the 1955 settlement is concerned, there can be no
G question of adverse possession by the first defendant commencing thereunder or from its date. Under the said settlement, the first defendant was
declared to be the owner of Doctor's Lane House and S was given the right
of residence in the first floor thereof. Once the first defendant is declared
to be the owner of the said property, there is no question of adverse
H possession by him. [73-H, 74-A]
M.C. SHARMA v. R.K. SHARMA [B.P. JEEVAN REDDY, J.]
47
7. A party who abandons a particular plea at a particular stage A
cannot be allowed to re-agitate in appeal. Among the issues framed in the
suit, Issue No. 5 pertains to the plea of limitation. On this issue, the
learned Single Judge recorded a finding in favour of the plaintiff. The
decision on the above issue was not contested by the parties before the
Division Bench. Once this is so, it is not open to the appellant in these
appeals to seek to re-agitate the said plea. [72-H, GI
8. The sale deed executed by the second defendant as the General
Power of Attorney of the first defendant in favour of Defendant Nos. 3 to
B
5 is valid and effective insofar as the ground floor of the Doctor's Lane
house is concerned. So far as the first floor of the said Doctor's Lane C
house is concerned, it became the absolute property of S on the coming
into force of the Hindu Succession Act, 1956, i.e., by operation of Section
14(1) of the said. On her death, the said first floor devolved upon her son
and four daughters in equal shares under Section 15 of the Hindu Succession Act, 1956. [75-H, 76-A-B]
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 547-48
of 1991.
From the Judgment and Order dated 25.3.87 of the Delhi High Court
in R.F.A. (OS) Nos. 14 and 15 of 1984.
Arun Mohan, Ms. Chitra Mahendale and Ashok Grover for the
Appellant.
M. C. Bhandare, M.R. Chawla, KN. Tripathi, J.R. Das and S.S.
D
E
Jauhar for the. Respondents.
F
The Judgment of the Court was delivered by
R.P. JEEVAN REDDY, J. Third defendant is the appellant. He along
with Defendant Nos. 4 and 5 is the alienee of the house property, which is
the subject-matter of these appeals. Second defendant is the brother of G
third defendant and father of Defendant Nos. 4 and 5. Defendant Nos. 2,
4 and 5 are figuring as respondents in these appeals but are supporting the
third defendant.
Plaintiff and Defendant Nos. 6 to 8 are the daughters of late Ram
Nath Dewan while the first defendant is the son of Ram Nath Dewan. First H
48
SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A
defendant and second defendant have married sisters. First defendant was
practically settled in U.S.A. along with his family. He appointed the second
defendant as his General Power of Attorney. Acting as the General Power
of Attorney of fi"t defendant, the second defendant executed a sale deed
in respect of No. 5, Doctor's Lane, New Delhi (the house property which
B
is the subject-matter of these appeals, which shall be referred to hereinafter
as "Doctor's Lane") .in favour of his brother (Defendant No. 3} and sons
(Defendant Nos. 4 and 5).
The plaintiff, daughter of late Ram Nath is seeking to avoid the sale
of the said house property in the present suit for partition and separate
C possession of her 1/5th share. The other daughters, Defendant Nos. 6 to 8,
are tacitly supporting the plaintiff, though they have remained ex parte. The
first defendant too has remained ex parte. He did not even filed a written
statement. He died pending the suit. His legal representatives, all of whom
are residing in U.S.A., have also not chosen to appear in the suits/appeals.
Thus, the contest has been between plaintiff on one side and Defendant
D Nos. 2 to 5 on the other.
E
F
RELEVANT FACTS:
Ram Nath Dewan was a self-made man. He earned substantial
properties in Delhi. He married a little late in life. His wife, Satyawati,
was younger to him by atleast fifteen years, if not more. They had a son
(first defendant) and four daughters (plaintiff and Defendant Nos. 6, 7 and
8). With a view to provide a secure life to his wife, Ram Nath made a Will
on 10th day of April, 1942 whereunder he bequeathed one of his properties, viz., No. 5 Doctors Lane, New Delhi to Satyawati for life. He provided
that after Satyawati's death, the said property shall go to his legal heirs.
Ram Nath died in the year 1953.
Soon after the death of Ram Nath, disputes arose between the
mother and the son. The son (first defendant) put forward another Will
said to have been executed by Ram Nath on September 26, 1950 supersedG ing the earlier Will. As many as seven suits came to be instituted between
the mother and the son. In January 1955, a settlement was arrived at
between them. Under this settlement, the mother, Satyawati, was given a
right to reside in the first floor of the Doctor's Lane house. The son was
to pay her Rs. 125 per month as maintenance allowance. If the mother did
H not intend to reside in the said first floor, the son was to pay her Rs. 150
•
M.C. SHARMA v. R.K SHARMA [B.P.JEEV AN REDDY, J.]
49
per month as maintenance allowance. Provision was made for the marriage A
of the youngest daughter. It was affirmed that No. 58, Todar Mal Road,
New Delhi, is the exclusive property of the mother but she undertook not
to transfer the property in any manner whatsoever. After her death, the
wife of the first defendant was to be the owner of tho. said property. Certain
jewellery and other articles were also given to the mother. A joint statement
in the above terms was submitted into the Court on January 27, 1955 and
the suits disposed of in terms of the settlement on the same day.
B
The first defendant, Rajender Nath, was practically settled in U.S.A.
along with his family. He appointed his co-son-in-Jaw, Sri G.C. Sharma
(second defendant) as his General Power of Attorney in respect of his
C
properties in India. On March 4, 1971, the second defendant executed a
sale deed in respect of the Doctor's Lane house in favour of his brother
(third defendant) and his own two sons (Defendant Nos. 4 and 5).
Satyawati died on July 2, 1972. Soon thereafter, the present suit for partition was filed in respect of all the properties left by Ram Nath and D
Satyawati. The plaintiff disputed the validity of the sale deed executed by
the second defendant on more than one ground. She asked for a declaration to that effect. She claimed a Vsth share in all the properties including
the suit house. According to her, each of the Defendant Nos. 1 and 6 to 8
were entitled to Vsth share.
The plaintiffs case in brief, as set out in the plaint, is this: the
Doctor's Lane house was constructed by Ram Nath on the land obtained
by him on perpetual lease from the Secretary of State for India in Council.
Ram Nath made a Will on April 10, 1942 bequeathing the said house to
E
his wife, Satyawati, for her life. He provided that on her death, it will
F
devolve upon his "legal heirs". Ram Nath and Satyawati owned certain
other properties also in Delhi. All the said properties are liable to be
divided among plaintiff, Defendant No. 1 and Defendant Nos. 6 to 8 in
equal shares. The plaintiff is in joint possession of the said properties along
with Defendant Nos. 1 and 6 to 8. Only after the death of her mother, has G
to plaintiff come to know of the General Power of Attorney executed by
the first defendant in favour of the second defendant and the sale of the
Doctor's Lane house by the second defendant to Defendant Nos. 3 to 5.
When she demanded partition of all the properties including the Doctor's
Lane house, the first defendant demurred. He alleged that in the year 1955,
there was a settlement between himself and Satyawati whereunder she had H
50
SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.
A surrendered the Doctor's Lane house in his favour retaining only a right
of residence in the first floor. The plaintiff does not admit the truth and
validity of the said settlement. In any event, the settlement, if any, cannot
affect the rights of the daughters (Plaintiff and Defendant Nos. 6 to 8) in
the said properties since they were not parties to the said settlement. The
B
c
first defendant had no right whatsoever in the Doctor's Lane house during
the life time of Satyawati. He or his Power of Attorney holder had,
therefore, no right to execute a sale deed in respect of the said Doctor's
Lane house. The Power of Attorney and the sale deed are both illegal,
invalid, fictitious, sham, collusive, void and without consideration and are
not binding upon the plaintiff and her sisters. Pending the suit, the plaintiff
asked for an amendment of the plaint seeking relief of possession of her
l/5th share in the Doctor's Lane house. The amendment was allowed on
December 6, 1983 with a direction that the said amendment shall be
effective only from the date of the said order.
D
The second defendant filed a written statement disputing the several
averments in the plaint insofar as they concerned him. Defendant Nos. 3
to 5 filed a joint written statement defending the alienation in their favour.
They submitted that the Will dated April 10, 1942 was revoked by another
Will dated September 26, 1950 made by Ram Nath. In any event, the
settlement arrived at between Satyawati and the first defendant on January
E
27, 1955 is binding upon all who claim through Satyawati. Under the said
settlement, Satyawati surrendered all her right, title and interest (life
interest) in the Doctor's Lane house in favour of the first defendant ,
retaining a mere right of residence in the first floor. The first defendant
thus became the absolute owner of the Doctor's Lane house and, therefore,
F
the sale deed executed by his Power of Attorney is good and valid. As a
matter of fact, the Doctor's Lane property was resumed and entered upon
by the President of India. At the intervention of Defendant Nos. 3 to 5,
however, a supplementary lease deed (perpetual lease) dated June 3, 1952
was executed by the President of India in favour of Defendant Nos. 3 to 5.
G
The learned Single Judge of the Delhi High Court, who tried the suit,
dismissed the suit insofar as the Doctor's Lane house is concerned but
decreed it insofar as other properties are concerned. The learned Judge
held that by virtue of the settlement dated January 27, 1955, Satyawati
surrendered all her right, title and interest in the Doctor's Lane house in
H favour of her son, first defendant, who was the only legal heir of Ram Nath
•
. ,
M.C.SHARMA V. R.KSHARMA[B.P.JEEVANREDDY,J.]
51
on the date of the said settlement. The first defendant thus became the A
absolute owner of the Doctor's Lane house. Inas111uch as the first defendant has not disputed the correctness of the sale deed executed by the
second defendant in favour of Defendant Nos. 3 to 5, the sale of the
Doctor's Lane house in favour of the said defendants is good and valid.
B
Only the plaintiff appealed under Clause 10 of Letters Patent a~st
the judgment of the learned Single Judge*. The Division Bench allowe-a · ..
the appeal on the following findings:
(1) The Will dated April 10, 1942 made by Ram Nath is true, valid
and effective.
c
(2) The Will put forward by Defendant Nos. 2 to 5, said to have been D
executed by Ram Nath on September 25, 1950 in favour of the first
defendant is not proved to have been executed by Ram Nath .
· (3) The interest created in Satyawati under the 1942 Will is a life E
estate and not a widow's estate. While a widow's estate could be surrendered in favour of the neartst reversioner(s), the life estate cannot be
so surrendered. In any event, since the alleged surrender under the settlement dated January 27, 1955 was not total and complete, it was no
F
surrender in law. As a matter of fact, the 1942 Will expressly prohibited
Satyawati from transferring the said property during her life time .
.....
( 4) While it is true that in the year 1942 when the Will was executed, G
first defendant, Raj ender Nath,, was the only "legal heir" of Ram Nath but
the Will contemplates that the Doctor's Lane house shall devolve upon the
legal heirs of the testator on the death of Satyawati. On the date of the
death of Satyawati, not only the first defendant (the son) but the daughters H
also were the "legal heirs" by virtue of the Hindu Succession Act, 1956.
Each of them is entitled to 1/5th share in the disputed house.
(5) On the languag_e of the 1942 Will, it is the exception to Section
111 of the Indian Succession Act, 1925 that applies and not Section 119 or
for that matter Section 120. Since it was a bequest to a class, the class has
The legal representatives of the first defendant also filed an appeal, R.F.A. No. 15 of
1984 but that appeal related to son1e other property and hence has no relevance herein.
The said appeal was disposed of by the Division Bench on the san1e day, i.e., March
25, 1984. The legal representatives of the first defendant have not preferred any appeal
to this Court.
52
SUPREME COURT REPORTS [ 1995j SUPP. 6 S.C.R.
A
to be ascertained on the death of the interposer. "To the extent of the
application of exception to Section 111 of the Succession Act, it (bequest
under the Will in favour of legal heirs) was contingent".
B
c
D
E
F
On the above findings, the Division Bench held that Plaintiff, first
defendant and Defendant Nos. 6 to 8 arc entitled to Vsth share each in the
Doctor's Lane house. Inasmuch as the first defendant or his legal heirs did
not question the sale deed dated March 4, l971, Defendant Nos. 3 to 5 will
be entitled only to the l/5th interest of the first defendant in the Doctor's
Lane house. The judgment of the Division Bench is questioned by the third
defendant in these appeals who is supported, as stated above, by Defendant
Nos. 2, 4 and 5.
CONTENTIONS OF THE PARTIES:
Shri Arun Mohan, learned counsel for the appellant, urged the
following contentions :
(i) Even if the Will dated September 25, 1950 is held not established
and the 1942 Will is taken to be the true and effective Will, even then the
Doctor's Lane house must be held to have become the absolute property
of the first defendant under and by virtue of the settlement dated January
27, 1955. Satyawati had only a right to reside on the first floor during her
life time and no more. The plaintiff has neither pleaded nor relied upon
Section 14 of the Hindu Succession Act, l956 nor is it her contention that
Satyawati became the absolute owner of the first floor by virtue of Section
14. She cannot, therefore, be allowed to raise the said plea for the first time
in these appeals. As a matter of fact, the Doctor's Lane house was resumed
by the President of India in terms of the grant and later granted on
perpetual basis to Defendant Nos. 3 to 5 by order dated June 3, 1952.
(ii) In la\v, succession is never in abeyance. On the language of the
Will, it is Section 119 - and in particular Illustration (iii) thereto - that
G applies. It means that while the life estate devolved upon Satyawati on the
death of Ram Nath, the remainder interest vested simultaneously in the
first defendant, he being the ,m]y legal heir on the date of the death of
Ram Nath. The vesting of remainder interest is not postponed till the date
of death of the interposer, Satyawati.
H
(iii) The Division Bench of the High Court was in error in holding
M.C. SHARMA v. R.K. SHARMA [B.P. JEEV AN REDDY, J.]
53
that the exception to Section 111 applies in this case. The said exception A
contemplates bequest 1to "a class of persons described as standing in a
particular degree of kitidred to a specified individual". In this case, neither
the bequest is to a class of persons nor were the persons in whose favour
the bequest was made stood in a particular degree of kindred to a specified
indi\odual. The words "a specified individual" in the said exception do not
and cannot comprehend the testator. They refer to a person other than the
testator. The High Court was also in error in holding that Section 120 of
the Indian Succession Act is attracted. That section applies only to a
bequest which is contingent and here the bequest is certainly not contingent.
(iv) Though Satyawati was alive for about seventeen years after the
1955 settlement, she never questioned the said settlement. On the contrary,
by her conduct, she always affirmed the ownership of the first defendant
over the Doctor's Lane house. As a matter of fact, she was not even living
B
c
in the first floor wherein she was given a right to reside under the said
settlement. In such a situation, Section 14 of the Hindu Succession Act has D
no application since she was not possessed of the said property - not even
of the first floor, on the date of the coming into force of the said Act.
(v) The life estate holder is also entitled to surrender his/her interest
in favour of the remainder-men. The requirement of a total and complete
E
surrender applicable in the case of widow's estate is not applicable in the
case of a limited estate.
(vi) The suit is barred by limitation. This snit, as originally filed, was
based upon the plea of joint possession even with respect to the Doctor's
Lane house which is admittedly untrue and untenable. The relief of posF
session was added by amending the plaint only on December 6, 1983. This
date is beyond twelve years from the date of sale in favour of Defendant
Nos. 3 to 5. Defendant Nos. 3 to 5 have perfected their title by adverse
possession, in any event.
On the other hand, Shri M.C. Bhandare, learned counsel for the
respondent-plaintiff, urged the following contentions while supporting the
reasoning and conclusion of the Division Bench :
G
(I) The case of Defendant Nos. 2 to 5 is not only unjust but is based
upon fraud. The second defendant, who is a senior advocate prnctising at H
54
SUPREME COURT REPORTS (1995] SUPP.6 S.C.R.
A Delhi, took unfair advantage of the faith reposed in him by the first
respondent, his co-son-in-law, and cheated him out of his property by
executing a sale deed for a nominal consideration in favour of his own
brother and sons. Because the first defendant was settled in America along
with his family and was not taking proper interest in his properties and
B affairs in India, the second defendant got an opportunity which he made
full use of for his own unjust enrichment. This factor is relevant because
these appeals are filed under Article 136 of the Constitution of India.
(II) The alleged family settlement arrived at on January 27, 1955 was
not a voluntary one. The defenceless widow was confronted by her own son
C who put forward a rival but false Will said to have been executed by Ram
Nath whereunder he sought to deprive Satyawati of all her interest in the
.
.
Doctor's Lane house under the 1942 Will. As many as seven suits were
pending. There was also an arbitration by one Chanan Ram, referred to in
the said joint statement. Under the settlement, Satyawati was deprived of
D her life estate in the Doctor's Lane house and she was given a partly sum
of Rs. 125 per month along with a mere right of residence in the first floor.
It was further provided that if she did not choose to reside in the said first
floor, she would be given extra Rs. 25 per month. The entire settlement
was unjust and unfair to the widow.
E
(III) That the interest created in Satyawati under the 1942 Will is a
life estate and not a widow's estate as rightly held by the Division Bench.
The 1942 Will placed an express prohibition against transfer of her interest
by Satyawati. The so-called surrender is in reality a transfer of her interest
and hence barred by the Will. Once the said settlement goes, the 1942 Will
p
stands io its full effect. Satyawati became the absolute owner of the said
property by operation of law, viz., Section 14 of the Hindu Succession Act,
1956. The sale of the Doctor's Lane house by the first defendant or his
Power of Attorney holder is, therefore, of no effect and incompetent.
(IV) On the clear language of the Will, Section 119 of the Indian
G Succession Act is not attracted. The Will clearly indicates that the devolution of interest upon the legal heirs of the testator was to take place on the
death of Satyawati. It was a case of bequest to a class within the meaning
of the exception to Section 111. Because of the said contrary intention in
the Will, Section 119 is not at all attracted. It is the exception to Section
H
111 that applies.
M.C. SHARMA v. R.K. SHARMA fB.P. JEEV AN REDDY, J.]
55
(V) The duty of court in the case of construction of a Will is always A
to give effect ,to the intention of the testator. The intention of Ram Nath
is made clear beyond any doubt by the clear words used in the Will,
according to which Satyawati was to be the life estate holder and that "after
her ( devisee) death" the property was to go to the "legal heirs of the
testator". On the death of Satyawati (devisee), the legal heirs of the testator
were the son and four daughters of Ram Nath and it is they who succeeded
to the said property in equal shares.
B
(VI) Even if the plaintiff has not expressly pleaded or relied upon
Section 14 of the Hindu Succession Act, 1956 in the plaint, she is yet
entitled to rely upon the said provision. The plaintiff had made it clear at C
more than one place in the plaint that she is claiming her right in the
Doctor's Lane house and other suit properties not only under her father,
Ram Nath, but also under her mother, Satyawati. In the light of the said
specific pleading, the plaintiff is entitled to rely upon Section 14 of the
Hindu Succession Act.
-
(VII) The plea of limitation is wholly untenable. The plaintiff and
other legal heirs of Ram Na.th succeeded to the Doctor's Lane house only
on the death of Satyawati who was the limited estate holder, During the
life time of Satyawati, they had no right to, nor were they obliged to,
challenge the alienation of the Doctor's Lane house from the date of death
D
of Satyawati. Even the amendment of the plaint including the relief of E
possession, granted on December 6, 1983 is within a period of twelve years.
THE 1942 WILL AND THE 1955 SETTLEMENT:
For a proper appreciation of the contentions, it is necessary to set
out the 1942 Will as a whole : '
F
"DEED OF WILL
I Mr. Ram Nath Dewan S/o. Pt. Moo! Raj caste Brahmin
resident of No. 5 Doctors Lane, New I;Jelhi hereinafter called the
testator made this Will without any persuasion fraud and collusion G
in favour of my wife, Shrimati Satya Vati Dewan daughter of Pt.
Atma Ram Vedi hereinafter called the Devisee. Now this deed ·
witnesses as follows :
1. That the testator bequeatjJ.s the use, enjoyment and interest
of my house on part plot No. 5, in block No. 88, Doctors H
56
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
Lane, New Delhi worth Rs. 50,000 in my said wife, the devise
during her life after his (testator) death and declares that
after her ( devisee) death the property will go to the legal
heirs of the testator.
2. That the said devisce will continue to live in the said house
according to her sweet will and shall also have a right to give
the said properly on rent to any tenants.
3. That the said devisee shall have no right lo transfer the
property in any way whatsoever.
4. That the said devisee \viii be whole and sole manager and
beneficiary of the said property during her life and shall
possess a right lo make any alteration and addition in the
building accommodation in accordance of her sweet will and
desire. No legal heir of the testator shall have any right to
object to that.
5. That the devisee will realise the rent of the said property
if any and appropriate and spend it on herself or anyone else
in accordance of her sweet will. No legal heir of the testator
shall have any right to interfere in that.
6. That. no legal heir of the testator shall be entitled to live
in the said house without permission of the said devisee
during her life and said devisee will have right to eject any
person living in the house at the time of the testator's death.
7. That the said devisee shall be liable to pay the lease money
(Land Rent) to the Government either from the income
derived from the house or from her own pocket.
8. That the repair of the house will depend upon the sweet
will of the devisee.
In witnesses whereof, I, Mr. Ram Nath Dewan, the testator have
put my signature to this my Will this 10th day of April 1942 in
present of the attending witnesses:
sd/- Ram Nath Dewan
l
M.C. SHARMA v. R.K SHARMA (B.P. JEEV AN REDDY, J.]
57
We are not setting out the 1950 Will put forward by Defendant Nos. A
3 to 5 inasmuch as it is held not proved by both the learned Single Judge
and the Division Bench of the High Court and no effort was made before
us to challenge the said concurrent finding. It is, however, necessary to set
out the settlement arrived at between Satyawati and the first defendant on
January 27, 1955. It reads :
"Joint statetnent of Shri Rajender Nath Dewan Plaintiff and Smt.
Satyavati Defendant dated 27.1.1955 recorded in Suit No. 689/54
titled 'Rajender Nath Dewan versus Satyavati' decided on
27.1.1955 by Shri S.S. Kalha, SJIC Delhi.
ENGLISH TRANSLATION
Statement of Shri Rajender Nath Dewan Plaintiff and Smt.
B
c
Satyavati defendant on Solemn affirmation: The parties have compromised to the effect that the award of Shri Chanan Ram ArD .
bitrator be set aside. The defendant will reside on the !st floor of
No. 5, Doctors Lane, New Delhi. The plaintiff will pay her Rs. 125
per month as rnaintenance allowance. The defendant will arrange
for her food separately at her own expense. In case the defendant
does not intend to reside in the aforesaid portion, the plaintiff will
pay her Rs. 150 per month as maintenance allowance. In case the
defendant resides at the aforesaid place but take meal with the
plaintiff then the plaintiff will pay her Rs. 50 per month as maintenance allowance. The defendant shall not sllblet the aforesaid
property and she will not keep Mayadevi (and another person
whose name is illeglible) with her. Dr. Vidyavati or Shri Rishikesh
or their family members also will not reside with the defendant but
they will be free to visit the defendant at the said place. There are
Postal Certificates of the value of Rs. 5000 in the name of defendant and the deceased Dewan Ram Nath which certificates are
E
F
lying in safe custody with the Palai Central Bank, New Delhi. The
defendant will encash these certificates at the time of the marriage G
of Kumari Ramakanta Dewan and utilise the proceeds for her
marriage expenses. Before that the defendant will not be entitled
to encash these certificates nor will she be able to remove them
from the safe custody of the bank.