Brahmani Devi v. State of Uttar Pradesh — 1966 DIGILAW 414 (ALL)

ORDER S.S. Dhavan, J. - This is a second appeal filed by Smt. Brahmani Devi and her minor son Ganesh Shanker from the decree of the Civil Judge, Etawah affirming that of the Munsif of Etawah dismissing their suit for a declaration that a house attached by the State u/s 88 of the Code of Criminal Procedure does not belong to the Respondent but to her. 2. One Ram Nath, the husband of the Plaintiff-Appellant, did not appear in answer to a summons by the criminal Court in a complaint filed against him. He was proclaimed an absconder u/s 87 Code of Criminal Procedure and subsequently his one third share in the house in dispute was attached u/s 88 Code of Criminal Procedure. The Appellant Smt. Brahmani Devi filed an objection which was summarily rejected. She then filed the present suit for a declaration of her title to her property. She alleged that the house originally belonged to one Gokul Prasad who was her father-in-law and the father of her husband Ram Nath. He made a Will in the year 1940 bequeathing the house to his wife Smt. Kalawati and his daughter Smt. Naraini Devi, with a provision that on the death of either of them the survivor would become the owner and with a further provision that neither Kalawati nor Naraini Devi would have the right to alienate or transfer the house and that after the death of both it would devolve on his six sons, one of whom Ram Nath. The Appellant further alleged in her plaint that after the death of Gokul Prasad his widow Smt. Kalawati and daughter Naraini Devi became the joint owners of the house and after the death of Smt. Naraini Devi, the widow became the absolute owner of the house. She further alleged that, on 11-4-1944, Smt. Kalawati on the advice and with the consent of her sons who were alive four having died during Kalawati's lifetime-made a Will in favour of three persons, namely, the Plaintiff Brahmani, a grand-son Vishnu Babu (son of Jugal Kishore deceased) and daughter-in-law Smt. Mahtabo (the wife of the son Jhunni lal who was alive at that time). The Plaintiff contended that this Will was acted upon immediately after the death of Smt. Kalawati and the three legatees under the Will took possession of the property to the exclusion of all other heirs of the ancestor Gokal Prasad but with their consent. She alleged that under this arrangement she and other two legatees remained in possession without interruption for the next ten years and continued to enjoy the possession and profits of the house. She contended that in these circumstances Ram Nath had no share in the house in dispute and the State could not attach his share in it for the simple reason that he had none. 3. The suit was contested by the State. Very briefly the defence was that the will executed by Smt. Kalawati was null and void and did not have the effect of conferring any title on the other two legatees because Smt. Kalawati had only a life-interest in the house. The State contended that Smt. Kalawati having got only a life-interest in the property could not disturb the order of succession as provided in the will of Gokul Prasad and on her death her interest came to an end and Gokul Prasad's sons became the absolute owners joint) of the house. Therefore (the State pleaded) Ram Nath had a one third share in the house in dispute at the time when the attachment u/s 88 Code of Criminal Procedure was made. 4. The learned Munsif held that under the will of Gokal Prasad Smt. Kalwati acquired only a life interest and not full ownership and was not competent to make a disposition of the property by will. He held that after Smt. Kalawati Devi's death Ram Nath acquired joint ownership to the extent of ore third share which is liable to attachment. Accordingly, he dismissed the suit. These findings were upheld on appeal by the learned Civil Judge who affirmed the decree of the trial Court. Smt. Brahmani Devi and minor Ganesh Shanker have come to this Court in second appeal. 5. Mr. Satya Narain Agarwala, learned Counsel for the Appellants, contended that the finding of the court below that Smt. Kalawati did not acquire an absolute ownership of the house but only a life interest in it is erroneous. He relied strongly on the word 'malik' used in the will of Gokul Prasad. 5. Mr. Satya Narain Agarwala, learned Counsel for the Appellants, contended that the finding of the court below that Smt. Kalawati did not acquire an absolute ownership of the house but only a life interest in it is erroneous. He relied strongly on the word 'malik' used in the will of Gokul Prasad. This argument was advanced before the lower court and rejected, in my opinion, rightly. A will has to read and construed as a whole and each material part of it given effect to. Paragraph 3 of the will clearly stated that Smt. Kalawati and Narainidevi would not have the right to sell or mortgage or give away the property and paragraph 4 provided that after the death of these two women, the six sons would inherit the house in equal share. This meant that Kalawati had only a life interest. 6. Learned Counsel then stated that even if Kalawati had no power to make a disposition of the house by will, the only persons who could challenge this disposition were the sons and the State as an out-sider has no right to challenge. I don't think this argument has much substance. The State proclaimed Ram Nath as an absconder u/s 87 of the Code of Criminal Procedure and after he failed to turn up, it proceeded to attach his property. The material words of Section 88(1) Code of Criminal Procedure (are)-"The Court issuing a proclamation u/s 87 may at any time order the attachment of any property, moveable or immoveable, or both, belonging to the proclaimed person". This section gives the power to attach any property "belonging" to a proclaimed person. Sub-section (6-A) gives any person the right to file an objection on the ground that he has an interest in the attached property and that his interest is not liable to attachment. Reading these two provisions together it is obvious that the Court can attach any property "belonging" to a proclaimed person subject to the right of any other person to object that property belongs to him. This section provides a procedure for determining whether the attached property belongs to the proclaimed person or not Therefore, the State can always raise a question whether the property attached by the Court belonged, at the time of the attachment, to the proclaimed person. This is precisely what the State has done in this case. This section provides a procedure for determining whether the attached property belongs to the proclaimed person or not Therefore, the State can always raise a question whether the property attached by the Court belonged, at the time of the attachment, to the proclaimed person. This is precisely what the State has done in this case. It is for the Court to determine whether Ram Nath, the proclaimed absconder, had a one third share in the house in dispute. This may involve a question as to the validity of the will execued by Smt. Kalawati and its legal effect, but this cannot prevent the State from raising this question. 7. Mr. Agarwala then considered that even assuming that Smt. Kalawati acquired a life-interest in the house she could make a disposition with the consent of the reversioners. Learned Counsel cited a large number of cases, but it is not necessary for me to discuss them as they arose out of a disposition of property by a Hindu widow during her life-time with the consent of reversioners. A Hindu widow's estate is not a mere life estate. She has the power to dispose of or sell the property under certain circumstances-as for example, for necessity, or with the consent of reversioner s, but no case was cited before me in which it was held that a Hindu widow can dispose of by will property inherited by her. On the contrary, the law enjoins that she cannot. In Mulla's Hindu Law (13th Edition p. 201 para 180) it is provided. "A widow or other limited heir cannot in any case dispose of by will the property inherited by her or any portion thereof, whether the property be moveable or immoveable." I am, therefore of the opinion that Smt. Kalawati's will was invalid as a will. But I am of the opinion that the will though invalid as will may be considered as evidence of a part of the family settlement. Mr. T.N. Sapru, who argued this case with great ability and considerable tenacity, contended vehemently that the Plaintiff had not set up the case of family settlement and this Court should not create a new case for them in second appeal. I do not think that considering whether the will is evidence of a family settlement is creating a new case for the Plaintiffs. I do not think that considering whether the will is evidence of a family settlement is creating a new case for the Plaintiffs. The Plaintiffs have set up this document as the foundation of their case. According to her it is a will conferring on her an absolute estate. The court has to consider the legal effect of this document. If it holds that it is valid as a will, the Plaintiffs' suit must succeed. But even if it holds that it is not valid as a will this finding cannot prevent it from considering, the legal effect and consequences of this document in other respects. Mr. Sapru argued that no issue had been framed on the question of family settlement and the Defendant has had no opportunity to cross-examine the witnesses and rebut the allegation that there was a family settlement. I do not think that any specific issue was necessary. The Plaintiffs had alleged in their plaint that Smt. Kalawati, on the advice and with the consent of her sons Jhunni Lal and Ram Nath, made a will and the Defendant denied in its written statement that Ram Nath had given his consent. The courts below have found that the will was made with the consent of the sons. The allegations in the plaint that the will was made on the advice of the sons pointed to some kind of discussion followed by the execution of the document. 8. In my opinion, if the circumstances surrounding the execution of this document clearly proved that it was probably the result of a family arrangement, the court can give a finding to this effect. In Lakshmi Chand v. Anandi ILR 48 All 313 (PC) the case involved the interpretation of a document which was signed by two brothers by way of will. It provided in effect that if either party died without male issue his widow should take a life interest in half of the whole estate and that if both parties died without male issue, the daughter of each or their male issue should divide the father's share. Shortly after the execution of the document one brother died and the other sued for a declaration that the document was null and void. Shortly after the execution of the document one brother died and the other sued for a declaration that the document was null and void. The Privy Council held that it could not operate as a will; but that it operated as a binding agreement entitling the widow of the dead brother to a life interest in a moiety, because a cosharer in a Mistakshara joint family could with the consent of all his cosharers deal with the share to which he would be entitled on a partition. The important point to note is that while declaring the document invalid as a will the Privy Council considered its legal effect in other respects and held that it was good evidence of a family arrangement contemporaneously made and acted upon by all the parties. Again, in Potti Lakshmi Perumallu Vs. Potti Krishnavenamma, AIR 1965 SC 825 a suit was filed by a Hindu widow for a declaration that a will executed by her husband was inoperative because he was a member of the joint Hindu family at the time of his death. This contention was upheld by the Supreme Court in appeal. It was argued before it that the will should be construed to be a family arrangement made by the Karta of the family and assented to by the other parties concerned. The Court considered this argument on merits and held that there was complete absence of evidence to show that there was any occasion for a family arrangement or that the arrangement in the will was acted upon. The point to note is that the Supreme Court did not hesitate to consider the alternative legal effect of the will. Mr. Sapru then argued that as the so-called family arrangement was made in writing namely, the will in dispute-as it could be given effect to only if the document was registered. Learned Counsel relied on certain observations of the Supreme Court in Tek Bahadur Bhujil Vs. Debi Singh Bhujil and Others, AIR 1966 SC 292 . But in this very case the Supreme Court observed that a family arrangement can be made orally and its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The Supreme Court observed: The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. The Supreme Court observed: The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepare ed as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess." Relying on these observations, Mr. Sapru contended that in the present case the rights of the parties are based upon the will executed by Smt. Kalawati and therefore, it required registration as a family arrangement. There are two short answers to this argument. First, the document is in fact registered; and secondly, the argument overlooks that the observations of the Supreme Court apply to documents which are otherwise valid and effective in law but inadmissible in evidence for want of registration. But it is somewhat self contradictory to argue that a document which is invalid irrespective of registration required registration to make it admissible as a piece of evidence. In the present case the will executed by Smt. Kalawati is void as a will and therefore the question of registration does not arise. 9. I shall now consider whether the document executed by Smt. Kalawati as a will was in pursuance of a family arrangement and may be considered as evidence of it. Mr. Sapru contended that there is no evidence whatever of any family settlement. He pointed out that no witness for the Plaintiffs had deposed in so many words that there was any such arrangement. It is true that the witnesses did not use the word 'family arrangement', but this is not conclusive of the matter. The words 'family arrangement' or 'family settlement' are the same and common people are not expected to use legal phraseology in setting their family affairs. The real question is whether on the evidence the court can infer that there must have been a family settlement or arrangement in pursuance of which Smt. Kalawati was permitted to execute the document called her will. The real question is whether on the evidence the court can infer that there must have been a family settlement or arrangement in pursuance of which Smt. Kalawati was permitted to execute the document called her will. I think there is such evidence. Kalawati's son Jhunni Lal, PW 6, deposed that there was a discussion one or two days before the execution of the document and Kalawati asked whether her sons were agreeable (Vasiat likhne se ek do din pahle razamandi ki charcha chal rahi thi). He further deposed that he and Ram Nath advised and permitted her to execute the document. This indicates that there were consultations between all the members of the family after which a certain course of action was decided upon. This is corroborated by the fact that all the sons who were living at the time signed the will. Mr. Sapru contended that as Ram Nath signed the will as an attesting witness, the bequest to his wife was void u/s 67 of the Succession Act. The short answer to this argument is that the witnesses have deposed that Ram Nath put his signature as evidence of his consent. 10. Mr. Sapru contended that Jhunni Lals evidence should not be believed because he is an interested person. I cannot agree. If the family arrangement is effective, Jhunni Lal was deprived of his share in the house and therefore, in giving evidence in favour of the Plaintiffs he was testifying against his own interest. 11. Mr. Sapru then contended that there was no consideration for Ram Nath's consent to the family arrangement, even if there was one and therefore, it was void. But the nature of consideration in a family arrangement is not quite the same as required under a contract enforceable at law. This question was considered at considerable length by a Full Bench of this Court in Mt. Dasodia v. Gaya Pd. 1943 AWR 22 FB. In that case Justice Dar observed, when the arrangement is between members of a family and the object of the arrangement is to preserve family honour, family property and family peace, a Court of equity favours these transactions and is not inclined to examine with meticulous care and consideration which moved the parties to this arrangement. 1943 AWR 22 FB. In that case Justice Dar observed, when the arrangement is between members of a family and the object of the arrangement is to preserve family honour, family property and family peace, a Court of equity favours these transactions and is not inclined to examine with meticulous care and consideration which moved the parties to this arrangement. In that case it was held that the fact that a party's sons were getting minimum possession of one third of the property and their expectation was converted into a certainty under the family arrangement was a sufficient consideration in law to enforce the arrangement against that party. In the present case, Ram Nath gave his consent to the arrangement by which his mother Smt. Kalawati was permitted to execute the document. Under the arrangement his wife got an absolute ownership to the extent of one third share in the house. This, in my opinion, was sufficient consideration for his consent. 12. Mr. Sapru then contended that Ram Nath's consent to the agreement, even if there was one, was invalid as it was given under a mistake regarding the very nature of the transaction. According to the learned Counsel, the mistake was that Ram Nath thought he was giving his consent to the execution of a will by Smt. Kalawati. But this is not my view of the nature of Ram Nath's consent. I think the arrangement to which he gave his consent was that after Smt. Kalawati's death her two-daughters-in-law and grand sons by a predeceased son were to get the property, This is proved by the testimony of her own son Jhunni Lal (PW 6) who deposed that one or two days before the execution of the document there was a discussion between the mother and the sons during which she said to Ram Nath, "my son, I have only this house and nothing else and I want your accord that my daughters-in-law and grand sons should have it". The so-called will was only a means of giving effect to this agreement. 13. For these reasons I hold that the document executed by Smt. Kalawati (Ex. 2) is invalid as will but admissible as evidence of a family arrangement between the mother and her sons. The arrangement was given effect to. The so-called will was only a means of giving effect to this agreement. 13. For these reasons I hold that the document executed by Smt. Kalawati (Ex. 2) is invalid as will but admissible as evidence of a family arrangement between the mother and her sons. The arrangement was given effect to. After Kalawati's death the three persons who were to take the property under the arrangement took possession of it and enjoyed the house and benefit of it for ten years. None of the family members questioned the arrangement or made the slightest attempt to resile from it. It was not a collusive arrangement or made with the intention to defraud any person. It has been acted upon. Parties have surrendered their rights under it. I think it will be unfair to all concerned if after ten years this Court, as a Court of equity should not give effect to it. 14. For these reasons I think the decision of the Courts below is erroneous. I allow this appeal and set aside the decree of the lower appellate court and decree the Plaintiff's suit for a declaration that the house in dispute belongs to the first Plaintiff and not to her husband Ram Nath. The Appellant shall have their costs throughout.