Research › Browse › Judgment

Allahabad High Court · body

1973 DIGILAW 236 (ALL)

Roop Narain v. Ram Chandra

1973-05-08

K.N.SETH, SATISH CHANDRA

body1973
JUDGMENT K.N. Seth, J. - This appeal is directed against the order of a learned single Judge whereby he allowed the writ petition filed by Respondents Nos. 1 and 2 and quashed the order of the Dy. DC. 2. The dispute relates to khatas which were originally recorded in the name of Pashupati Nath. He had two brothers--Jagannath and Murlidhar. Rup Narain and Rama Kant are the sons of Murlidhar. Ram Chandra and Raghunath Prasad are the sons of the other brother Jagannath. In 1947 Pashupati Nath executed a will in respect of the properties owned by aim. He died in 1958. After his death the name of his widow Smt. Chandra Badna was mutated over the properties in dispute. Smt. Chandra Badna died in 161. 3. The village came under consolidation proceedings in 1960. After the death of Smt. Chandra Badna, Ram Chandra and Raghunath Prasad filed, objections claiming that their names be mutated over the properties in dispute in] place of Smt. Chandra Badna. Rup Narain and Rama Kant also filed objections claiming that Pashupati Nath had executed a will in 1947 and under that will they alone were entitled to be recorded over the properties. Some other objections were alto filed but we are not concerned with them in the present appeal. 4. The Consolidation Officer accepted the claim put forward by Ram Chandra and Raghuuath Prasad and directed that their names be also recorded along with the names of Rup Narain and Rama Kant in place of Smt. Chandra Badna. On appeal the Asstt. SO (C) affirmed the view taken by the C.O. Rup Narain and Rama Kant filed a revision before the DyDC who by his older dt. 15-6-63, allowed the revision and directed that the names of Rup Narain and Rama Kant alone would be mutated in place of Smt. Chandra Badna over the properties in dispute. The correctness of the decision of the DyDC was challenged by Ram Chundra and Raghunath Prasad in this Court and as mentioned earlier, a learned single Judge allowed their petition and directed that the names of the r Petitioners should also be mutated along with the names of Rup Narain and Rama Kant over the properties in dispute. 5. Two questions were canvassed before the learned single Judge. 5. Two questions were canvassed before the learned single Judge. One was that the occupancy tenancy could dot be transferred under a will and the will to that extent was invalid. The next question raised was that Under the will Smt. Chandra Badna became the absolute owner of the properties of her husband and after her death they devolved on the Petitioners and Rup Narain and Rama Kant who were the sons of the brothers of Pashupati Nath. The learned single Judge did not decide the first question. On the second question he held that the will was invalid on the ground that the course of inheritance provided by the will militated against the rule of Hindu law. According to the learned single Judge, as Pashupati Nath laid down that on the death of his widow the properties shall be owned by two of his nephews and not all the four, it was against Hindu law and therefore invalid. The-learned single Judge also came to the conclusion that Smt. Chandra Badna had merely a life interest and u/s 172 read with Section 171 of the UP ZA and LR Act, the heirs would be the sons of both the brothers i.e., the two Petitioners and Rup Naraia and Rama Kant. 6. We have critically examined the will. It gives a clear intention of the testator to transfer all the properties that he owned. It does not seek, to transfer the occupancy tenancy as such. It is not disputed that before his death the testator had obtained Bhumidhari rights in respect of the occupancy holdings and that right could be legally transferred under a will. Since the will takes effect after the testator's death, it cannot be successfully contended that the occupancy tenancy was sought to be transferred under the will and to that extent it was invalid. All the properties held by the testator at the time of his death were legally bequeathed under the will and in this respect the will in question must be held to be valid. 7. The will provides that after the testator's death his wife Smt. Chaqdra Badna would hold the properties 'Bahaisiat Malik' and after her deal a Rup Narain and Rama Kant or their heirs would be entitled to all the properties. 7. The will provides that after the testator's death his wife Smt. Chaqdra Badna would hold the properties 'Bahaisiat Malik' and after her deal a Rup Narain and Rama Kant or their heirs would be entitled to all the properties. It further lays down that in the event of Smt. Chandra Badna dying luring the life time of the testator, Rup Narain and Rama Kant or the heirs would be entitled to all the properties. Learned Counsel for the Respondent contended that the use of the word 'Malik' clearly indicated that full ownership rights were bequeathed to Smt. Chandra Badna and after her death the properties would be inherited by all the heirs of the testator who were the sons of his two brothers and that the stipulation that Rup Narain and Rama Kint or their heirs would become the owners of the properties after the death of the widow was invalid and could not be given effect to. 8. The cardinal principle of construing a will is that the, court should put itself into the testator's arm's chair to ascertain his true intention which has to be gathered not by attaching importance to isolated expression but by reading the document as a whole and ignoring none of its provisions as redundant or contradictory. The surrounding circumstances, the position of the testator, his, family relationship, the probability that he has used the words in a particular sense and similar factors are relevant considerations in ascertaining the true intention of the testator. Pasbupati Nath had no issues. It is on record that his relations with the sons of Jagannath were strained on account of litigations. His natural inclination must have been keen to keep the properties in the family. The language and the tenor of the document construed in this background leaves no room for doubt that the dominant intention of the testator was to make Rup Narain and Rama Kant or their heirs the ultimate beneficiaries and to confer a life interest on his widow. The intention has been made absolutely clear by the stipulation that in the event of Smt. Chandra Badna dying during the life time of the testator his two nephews or their heirs be entitled to all the properties. Mere use of the expression "Bahaisiat Malik" does not indicate that the testator intended to make the widow a fresh stock of descent. Mere use of the expression "Bahaisiat Malik" does not indicate that the testator intended to make the widow a fresh stock of descent. Such an interpretation would render the subsequent stipulation redundant or contradictory which would be contrary to the established principles of construing a will. The testator was competent to transfer or bequeath the properties owned by him in favour of any person of his choice--whether an heir or a total stranger. If he chose to bestow the benefits on only some of his heirs and exclude others from his bounty, no principle of Hindu law or any other law has been violated or infringed. 9. The will does not institute a course of succession or create any estate of inheritance and naturally no question of its being inconsistent with the general principle of law of inheritance arises. The ultimate beneficiaries under the will are Rup Narain and Rama Kant or their heirs. The will does not lay down that after Rup Narain and Rama Kant only some of his heirs would inherit the properties to the exclusion of their other heirs. If that had been the case, it could have been possible to urge that the will sought to alter the line of succession allowed by law. But in the present case no such selection has been made so as to exclude the legal heirs from inheritance. The stipulation in the will that after the death of Smt. Chandra Badna, Rup Narain and Rama Kant or their heirs would be entitled to properties cannot be struck down as invalid. 10. The testator being competent to choose his beneficiaries and having bequeathed the properties to them under, a valid will, the provisions of Sections 171 and 172 of the UPZA and LR Act are not at all attracted. The view taken by the learned single Judge that after the death of Smt. Chandra Badna the properties would be inherited by all the four nephews of the testator is legally unsustainable. 11. In the result we allow this appeal, set aside the order of the learned single Judge and dismiss the writ petition with costs.