BHURA AND ORS. v. KASHIRAM

The Judgment of the Court was delivered by

DR. ANAND, J. 1. This appeal by special leave is directed against the Judgment and Decree of the High Court of Madhya Pradesh dated 22, August, 1980 made in First Appeal No.233 of 1977 setting aside the Judgment and Decree of the trial court and decreeing the suit of the plaintiff/respondent.

2Copy pinpoint2. The only controversy between the parties which was contested both before the trial court and the High Court was whether the will Exhibit P-4 conferred only a limited estate or an absolute estate on Sarjabai in so far as the suit property is concerned. The learned District Judge held that the estate which was bequeathed by Pancham to Defendant No.1 Sarjabai gave her an absolute rightthereto and consequently except on the question of adoption, ~he suit filed by the plaintiff-respondent was dismissed with costs.

BRIEF FACTS

3Copy pinpoint3. Tula Ram was the common ancestor of the parties, He had a son by name Pancham, who died on 6.8.1926. Pancham had 3 wives by name Smt. Punji, Smt. Kaushalya and Smt. Sarupa. Sarjabai, Defendant No.1 was the daughter of Smt. Punji, while Gopi Chand @ Korat was adopted as a son by Smt. Kaushalya and Pancham. Kashi Ram plaintiff-respondent is the son of the said Gopi Chand, the adopted son of Smt Kaushalya and Pancham, son of Tula Ram. According to the pleadings of the parties, F Pancham executed a will on 16.5.1907 in favour of Sarjabai, whereby he bequeathed certain sir lands and a house to her. Gopi Chand died _leaving behind Kashi Ram as his son. On the death of Pancham. Sarjabai, the daughter of Pancham through Smt. Punji, who was in possession ..... of the suit property, as a legatee under the will of Pancham, made a gift of the suit land and the house in favour of Defendant Nos.2 to 10 (Defendant No.3 is since dead) on 28.10.1971 as trustees of Gadhekar Tapti Dharamshala, Multai. The plaintiff-respondent thereupon filed a suit claiming that the · will dated 16.5.1907 (Ex.P-4) created only a life interest in favour of Sarjabai in the property bequeathed thereunder and, therefore, the transfer made by her through the gift deed dated 28.10.1971 was not binding on him beyond the life time of Sarjabai and that he was entitled to be put in

BHURA v. KASHIRAM [DR.ANAND,J.] 19

possession of that property, after her death, as an exclusive owner of the said property. The defence of defendants 2 to 9 on 'the other hand was that the will (Ex.P-4) conferred .an ab.solute estate on Sarjabai and therefore she was competent to alienate the suit property absolutely and the transfer by sale in their favour was valid. The trial court found in favour of defendant 2 to 9 and dismissed the suit. The defendants filed ·an appeal and at that stage, with the permission of the court, amended their written statements in the High Court and raised an additional plea that the suit land being sir had vested in the State on the coming into force of the Ma,dhya Pradesh Abolition of Proprietary Rights (Estates, Mahals. Alienated Lands) Act, 1950 (hereinafter the Abolition Act) and, that Malik-Makbuza rights had been conferred on her by virtue of Section 38 C of the Act since she had been in possession of the suit property on the date of the Abolition Act, and therefore the grant in her favour which was independent of the will conferred an absolute heritable and transferable title in her.

4Copy pinpoint4. That the lands in question were sir in nature and were in the D possesstion of Sarjabai at the time of the coming into force of the Abolition Act, and that Gopi Chand was th.e duly adopted son of Pancham and Kaushalya were not disputed before the High Court. It is in the background of these admitted facts that the controversy as noticed in the earlier part of this judgment is required to be resolved by us as that alone is the question at issue in the case. E

5Copy pinpoint5. Learned counsel for the respondent has produced before us a translated version of the will (Ex.P-4), the correctness of which has not been doubted by the opposite side. It is the construction of the will which will determine the controversy as raised before the courts below and agitated before us. · F

6Copy pinpoint6. In the will (Ex.P-4) (Annexure-III), Pancham Patel after narrating the description of the property and stating that he was executing the will so that no dispute arises between his adopted son and daughter, Sarjabai after his death, went on to record : . G "It is, therefore, established that there should not arise any dispute between my adopted son and daughter Sarjabai, after my death, for this purpose. I execute this will, as I am writing below, according to it, they would be entitled to get property, if my daughter Sarjabai bears a child, he H

BHURA v. KASHIRAM [DR. ANAND, J.) 21

could not even be enlarged into an absolute estate under the Hindu A Succession Act, 1956, even though she was possessed of that property at the time of the coming into force of the Hindu Succession Act, 1956. Section 14(2) of the Act mandates that nothing contained in Sub-section 1 of Section 14 of the Hindu Succession Act, 1956 shall apply to any property acquired by way of gift or under a will or by any other instrument prescrib- B ing a restricted right in such property. In view of our finding that the will (Ex.P4) itself prescribed a restricted right of life-estate in the property in favour of Sarjabai, that estate could not be enlarged into an absolute estate in view of the express provisions of the Hindu Succession Act, 1956.

8Copy pinpoint8. The High Court also dealt with and considered the contention raised for the first time before it by the appellant that the conferral of malik-makbuza rights under Section 38 of the Abolition Act upon Sarjabai amounted to. a fresh and independent grant to her of the suit land. After referring to various provisions of the Abolition Act, the High Court came to the conclusion, on the facts of this case, that notwithstanding the above provisions, factually Sarjabai had continued to retain possession of the sir land (land in the suit) not under any fresh grant under the provisions of the Abolition Act but since she was already in possession of the said land as a limited owner, under the will (Ex.P4). We are in complete agreement with the reasoning of the High Court on this aspect and need not dwell on it any further. E

9Copy pinpoint9. On a true construction of the will, (Ex.P4), and in the established facts and circumstance of the case, we are satisfied that the High Court was right in holding that Sarjabai had only a limited estate in the suit land and, therefore, the alienations made by her in favour of defendant Nos. 2 p to 9, were not binding on the appellant, after the death of Sarjabai. The possession of Sarjabai, at the time of the coming into force of the Abolition Act, being only on the basis of the will (Ex.P4), the High Court rightly set aside the judgment and decree of the trial court and directed that since Sarjabai had died that had brought to an end her limited rights, and therefore the transferees, Respondents 2 to 9, should put the plaintiff-ap- G pellant in possession of the suit land. We uphold the finding of the High Court. There is, no merit in this appeal which is accordingly dismissed but with no order as to costs.

G.N. Appeal dismissed.