Ram Kali v. Sumitra — 1983 DIGILAW 242 (ALL)

JUDGMENT: - This is defendants second appeal directed against the judgment and decree dated 27-1-1975 passed by the Ist Additional District Judge, Unnao, whereby he decreed the plaintiffs suit after setting aside the judgment and decree passed by the learned Munsif, Unnao, who had dismissed the suit of the plaintiffs. 2. The suit was filed by Chaudhari Rajendra Shanker for declaration that he is owner of the house in suit and the sale deed dated 18-10-1965 executed by defendant 2, Smt. Kamlawati, in favour of defendant 1, Smt. Ram Kali, is not binding on him, Chaudhry Rajendra Shanker died during the pendency of the suit and his legal representatives were brought on record. The admitted pedigree is as under: 3. Ram Ratan Lal was the original owner of the house in suit. He executed a will on 4-1-1921 through which he conveyed right of residence in favour of defendant 2. Smt. Kamlawati, during her lifetime with respect to the said house. The property was thereafter to vest in Rajendra Shanker and Prahlad Singh. It was alleged that defendant 2, Smt. Kamlawati, could not transfer the house in suit, Prahlad. Singh, brother of deceased plaintiff, died in 1922 and his widow Smt. Bittan died in 1966 and hence Rajendra Shanker alone had the vested interest in the suit property. Smt. Kamlawati executed a sale deed in favour of defendant 1, Smt. Ram Kali, on 18-10-1965. On receiving information about the said transfer the present suit for declaration about the rights was filed as it affected the interest of the plaintiff. 4. The suit was resisted by the defendants on the ground that the house belonged to Ram Ratan Lal. It was constructed by defendant 2 Smt. Kamalawati and she was the full owner of the property and the will was never acted upon and that at any rate defendant 2, Smt. Kamalawati, had perfected right by adverse possession. It was further alleged (died in 1966) that the plaintiff was never in possession and, therefore, the suit for declaration was not maintainable. The bar of estoppel was also pleaded. It was further asserted that Smt. Ram Kali is bond fide purchaser for value without notice. 5. The learned Munsif recorded a finding that the house belonged to Ram Ratan Lal and Smt. Kamlawati got the house by virtue of the will. The bar of estoppel was also pleaded. It was further asserted that Smt. Ram Kali is bond fide purchaser for value without notice. 5. The learned Munsif recorded a finding that the house belonged to Ram Ratan Lal and Smt. Kamlawati got the house by virtue of the will. He held that Smt. Kamlawati had only life interest in the house and she had no power to transfer. He also held that the will was acted upon and deceased plaintiff Rajendra Shanker had the right in the property in suit. He, however, recorded a finding that since Rajendra Shanker died during the pendency of the suit during the lifetime of defendant 2 Smt. Kamlawati the present plaintiffs who are the legal representatives of deceased Rajendra Shanker, had no right or interest in the property in suit. Smt. Kamlawati on the death of Rajendra Shanker had become absolute owner. He further held that the suit was maintainable after the death of Rajendra Shanker. However, the suit was barred by the principle of estoppel and acquiescence and that defendant 1 Smt. Ram Kali is bona fide purchaser in good faith without notice. On the basis of these findings dismissed the suit. The plaintiffs went up in appeal and the learned lower appellate court recorded a finding that execution of the will was proved and that Ram Ratan Lal was owner of the house in suit. He, however, held that Smt. Kamlawati was barred from alienating the property in any way as she had got a limited estate. Rajendra Shanker had vested interest as contemplated by S.19 T. P. Act, read with S.119, Succession Act. He further recorded a finding that Smt. Kamlawati did not become the absolute owner of the house in suit after the death of plaintiff Rajendra Shanker and his interest devolved on the present plaintiffs. He did not agree with the finding that Smt. Ram Kali was bona fide purchaser without notice and held that the legal heirs had a right to continue the suit. On these findings he allowed the appeal and decreed the plaintiffs suit after setting aside the judgement and decree passed by the learned Munsif. This is how this second appeal is before this Court. 6. I have heard the learned counsel for the parties and gone through the record. On these findings he allowed the appeal and decreed the plaintiffs suit after setting aside the judgement and decree passed by the learned Munsif. This is how this second appeal is before this Court. 6. I have heard the learned counsel for the parties and gone through the record. The learned counsel for the appellant argued that the will as a whole was not to be taken into account but it required the interpretation of the words "Malik wa Kabiz" used in the second paragraph of the will and the same phraseology with respect to the testator Ram Ratan Lal continued to exist till the property came in the hands of Smt. Kamlawati. He further argued that the sale deed was executed for legal necessity and in this connection he referred to certain averments made in the sale deed. Lastly, it was argued that in view of the wordings "Malik wa Kabiz" by virtue of S.11, T. P. Act, Smt. Kamlawati was in free enjoyment of the property and no restriction could be imposed on her interest and any restriction intended to be placed on her right to transfer would be void. I have gone through the entire will executed by Babu Ram Ratan Lal. It runs into several pages. The learned counsel for the appellant emphatically placed reliance on para 2 of the said will wherein the testator Ram Ratan Lal stated that so long as he was alive he was to remain "Malik wa Kabiz" over the entire property and after his death all the moveable and immoveable property of which he was Malik and Kabiz his widow was to remain Malik and Kabiz. The learned counsel therefore, argued that the same rights were to accrue to Smt. Kamlawati after the death of Smt. Pragdei wife of Ram Ratan Lal. He, therefore, argued that there were no limitations on the power of alienation of Smt. Kamlawati. I am unable to subscribe to this submission of the learned counsel for the appellant. 7. I now propose to deal with the three-fold argument advanced by the learned counsel for the appellant in seriatim. He, therefore, argued that there were no limitations on the power of alienation of Smt. Kamlawati. I am unable to subscribe to this submission of the learned counsel for the appellant. 7. I now propose to deal with the three-fold argument advanced by the learned counsel for the appellant in seriatim. I find no force in the submission of the learned counsel for the appellant that the will should not be read as a whole but the reading of the same may be confined to the paragraph dealing with the will of the property so far as it relates to the donee Smt. Kamlawati and her predecessor-in-interest. The learned counsel for the appellant while making an effort to emphasise the words "Malik" and "Kabiz" relied on certain decisions. It may be mentioned that even in those decisions it has been mentioned that the question for determination of intention has to be adjudged from the reading of the contents of the will containing restrictive clauses keeping in mind the subsequent clauses. The learned counsel relied on the case of Mohammad Ali Khan v. Nisar Ali Khan (AIR 1928 Oudh 67) Pullan, J. (as he then was) while interpreting the construction of a will observed with respect to term "Malik" as under : - "The term Malik when used in a will as descriptive of the position which a devisee is intended to hold, has been held apt to describe an owner possessed of full proprietary rights, including a full right of alienation, unless there is something in the context or in the surrounding circumstances to indicate that such full proprietary rights were not intended to be conferred but the meaning of every word in an Indian Will must always depend upon the setting in which, it is placed, the subject to which it is related, and the locality of the testator, from which it may receive its true shade of meaning." It has further been observed in this judgment :- "Isolated clauses should never be taken apart from their context and given a meaning contradictory to the apparent wishes of the testator. Even technical words should be given a meaning if possible in accordance with the testators wishes as apparent from the whole context." 8. In the above case the dispute was with respect to succession of the estates enjoyed by late Sir Fateh Ali Khan who died on 28-10-1923. Even technical words should be given a meaning if possible in accordance with the testators wishes as apparent from the whole context." 8. In the above case the dispute was with respect to succession of the estates enjoyed by late Sir Fateh Ali Khan who died on 28-10-1923. On the death of Nawab Fateh Ali Khan his son Sardar Nisar Ali Khan asserted possession over the estates both in Oudh and in the Punjab, but his title was challenged by the plaintiff Khan Bahadur Sardar Mohammad Ali Khan, the cousin of the late Nawab who claimed reversion to the whole estate under the will of the former holder Nawab Nasir Ali Khan. The Court after interpreting the will decreed the plaintiffs suit. 9. It may be observed in view of the great stress which the learned counsel laid on the word "Malik", that the word "Malik" has been often interpreted to mean an absolute owner. The house of Lords in the case of Comiskey v. Bowring Hanbury (1905-53 WR 402) although interpreting that the testator had bequeathed to his wife the whole of his estate absolutely yet, held that a subsequent provision in the same will was a good executory limitation taking effect after her death. Thus, the word "absolute" did not give the widow full heritable ownership of the property. In the instant case before me the words "Malik wa Kabiz" are not only limited by the express provision as to inheritance contained in the sentence but has been used merely as an adjective qualifying the intention by use of words "Malik wa Kabiz". Even if the words are taken in the strict sense they only mean that the legatee wished to have possession and enjoyment as an owner. Such a phrase clearly leaves the door open for a provision that the power of disposal is denied to her. Clause 2 of the Will which has been relied upon by the learned counsel for the appellant clearly mentioned that even during the lifetime of his widow the daughter-in-law Smt. Kamlawati during her lifetime will have a right to stay but she will have no right to turn out any one and after the death of his widow the daughter-in-law (Smt. Kamlawati) would be "Malik wa Kabiz". In the next sentence the testator mentioned that she will have no right to transfer the residential premises described under the will. In the next sentence the testator mentioned that she will have no right to transfer the residential premises described under the will. Thus, it is clear that the words "Malik wa Kabiz" used in the Will did not confer absolute proprietary rights on Smt. Kamlawati so as to transfer the property in favour of any person. In this view of the matter I do not find any force in the submission of the learned counsel for the appellant that she inherited absolute proprietary rights. 10. The next case relied upon by the learned counsel for the appellant is Raghunath Prasad Singh v. Dy. Commr., Partabgarh (AIR 1929 PC 283). Their Lordships of the Privy Council while dealing with S.74, Succession Act, held : - "The words in the will "that the estate shall vest in P" and that he shall be the testators "heir and successor", were clear dispositive words creating an absolute estate of inheritance in P and the various clauses that followed the main provisions were to come into operation after P had so inherited; they must, therefore, be regarded as an attempt to impose repugnant conditions upon the estate so created and were, therefore void." 11. The question for determination in the case before their Lordships was whether on the true construction of the said Will Partab took a life interest or an absolute interest in the property devised by the said Will. The rule of construction was made in the light of the attending facts and circumstances. In the present case, as mentioned above on the reading of the will with respect to the property bequeathed, by no stretch of imagination it could be said that the testator had vested absolute proprietary rights in the widow but the words "Malik wa Kabiz" as mentioned in the will were used in a restricted sense and conferred only restricted interest on Smt. Kamlawati. This case, therefore, in view of the above facts and circumstances is distinguishable and is not of any help to the learned Counsel for the appellant. A reading of the Will in the present case shows that the testator wanted to retain this house in the family forever with the object of securing worship of Sri Thakurji. This case, therefore, in view of the above facts and circumstances is distinguishable and is not of any help to the learned Counsel for the appellant. A reading of the Will in the present case shows that the testator wanted to retain this house in the family forever with the object of securing worship of Sri Thakurji. It is clear from the language of paras 2 and 3 of the Will that only the right of residence was given to Smt. Kamlawati while the property was to vest with Chaudhry Rajendra Shanker and Prahlad Singh after her death. I do not subscribe to the submission of the learned Counsel for the appellant that estate was not given to Chaudhry Rajendra Shanker because of the absolute bar. There is a finding by the learned Munsif that absolute right was conferred on Chaudhri Rajendra Shanker and that is why he allowed the legal heirs to be impleaded. If that was not so he could have easily ordered that the suit had abated on the death of Chaudhri Rajendra Shanker. 12. The next submission of the learned Counsel for the appellant that the bar on absolute proprietary rights to Smt. Kamlawati was void in view of S.11 T. P. Act also does not appeal to reason. It is no doubt true that the condition restraining alienation is clearly void in view of the provisions of the Transfer of Property Act. It may be mentioned that S.138, Succession Act. 1925, is also on the same lines. There cannot be two opinions about it. The reading of the Will, as observed above, clearly shows that Smt. Kamlawati was only given a right to reside in the house during her lifetime and she was clearly debarred from alienating this property in any way, Smt. Kamlawati, therefore, had a limited estate and had no right of alienation and it was Chaudhri Rajendra Shanker who was vested with the interest in the estate is envisaged by S.19, T. P. Act, and S.119, Succession Act. It may be mentioned that under. S.14, Hindu Succession Act, the property possessed by a Hindu female, no doubt, has now become her absolute property. This provision makes an exception in the case where the property is being held under a will or a gift or any other instrument or under a decree or order of a Civil Court. It may be mentioned that under. S.14, Hindu Succession Act, the property possessed by a Hindu female, no doubt, has now become her absolute property. This provision makes an exception in the case where the property is being held under a will or a gift or any other instrument or under a decree or order of a Civil Court. The character of such property was not changed by the introduction of S.14 of the Hindu Succession Act. It is, therefore, cannot be said that the house in suit in which right of residence was given to Smt. Kamlawati by virtue of the Will vested in her an absolute proprietary right. Her rights would remain the same as were prior to the enforcement of the Hindu Succession Act. It is no doubt true, that Chaudhri Rajendra Shanker died during the lifetime of Smt. Kamlawati but that would not lead to the conclusion that Smt. Kamlavati became an absolute owner of the estate. It would be stretching S.11 T. P. Act, too far if it is interpreted that the fetters placed on her rights would be void. It may be mentioned that both the brothers Chaudhri Rajendra Shanker and Prahlad Singh got a vested interest with the result that the interest of Prahlad Singh at the time of his death in 1922 passed in favour of his widow Smt. Bittan and the interest of Smt. Bittan after her death in 1966 reverted to Chaudhri Rajendra Shanker who had filed the suit and the rights of legal heirs of Chaudhri Rajentra Shankar, therefore, would not be defeated by the death of Chaudhri Rajendra Shanker. 13. It may further be mentioned that will is not a transfer, as such S.11, T. P. Act, would not hit the subsequent provisions of the Will. It has been held in Surendra Vikram Singh v. Munia Kunawar (AIR 1944 Oudh 65) that S.11 T. P. Act; is not applicable in the case of Will as Will is not a transfer. Will is defined under S.2 (b), Succession Act, as :- "Will means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death". In this view of the matter the will does not involve a transfer of property, Even if for arguments sake it is assumed that S.11. In this view of the matter the will does not involve a transfer of property, Even if for arguments sake it is assumed that S.11. T. P. Act, would apply and the restrictions placed on the rights of Smt. Kamlawati are held to be void in the light of emerging circumstances Smt. Kamlawati (daughter-in-law) would have no rights at all in view of the intention of the testator in the Will which has been mentioned by the testator in para 2 that after his death his wife Smt. Pragdei would be "Malik wa Kabiz" and after the death of his wife his daughter-in-law Smt. Kamlawati would be "Malik wa Kabiz". As such according to the arrangement after the death of the testator his wife Smt. Pragdei became absolute owner without any reservations and the property would become Stri Dhan and after the death of Smt. Pragdei the property would not devolve according to the Will but according to the law of succession prevailing at the time. Ram Ratan Lal had executed the said will in 1921. The name of Smt. Pragdei came to be recorded in the Municipal records in 1922 and it continued till 1931. After the death of Smt. Piagdei the name of Smt. Kamlawati was recorded from the year 1931 onwards on the basis of the Will in the Municipal records. At the time of death of Smt. Pragdei the property would devolve upon Chaudhri Rajendra Shanker, her grandson e.g., father of the respondents as the daughter-in-law had no right of inheritance before the grandsons at the relevant time e. g. when Smt. Pragdei died. The father and mother of grandson e.g. Chaudhri Rajendra Shanker died earlier to 1921. In view of these facts also in my opinion Smt. Kamlawati would not get absolute right of alienation and she could not therefore alienate the property. 14. It was lastly argued by the learned Counsel for the appellant that Smt. Kamlawati had transferred the property and the sale deed had been executed for legal necessity. I have gone through the contents of the sale deed. The purpose mentioned in the sale deed is as under: "Mukra Ko Sawab Okba Wa Dan Pun wa puja path ke liye rupya ki zoroorat hai. I have gone through the contents of the sale deed. The purpose mentioned in the sale deed is as under: "Mukra Ko Sawab Okba Wa Dan Pun wa puja path ke liye rupya ki zoroorat hai. Chunki mukra ab buddhi hai, lehaza apni khushi se apne hosh hawas durusti men us kul imarat ko jo makan nambari 34 (chautis) ke sahan men bani hai mae sahan 3 feet chaura ko badle do hazar rupya (Rs. 2000) hath Srimati Ramkali...ke bai katai kiya." The learned Counsel in view of the words "Sawab Okba" (for gaining heavenly benefit) "Danpun" and "Pujapath" argued that the sale deed indicated the well settled system recognised with respect to religious acts and hence he maintained that the sale deed was executed for legal necessity and, therefore, it was to be followed for all practical purposes. The learned Counsel in support of his contention placed reliance on the following decisions :- 1. Ram Dulare v. Smt. Batul Bibi, ( AIR 1976 All 135 ); 2. Mst. Sheo Kuer v. Nathuni Prasad Singh, ( AIR 1976 SC 709 ); 3. Khub Lal Singh v. Ajodhya Misser ( (1915) 31 Ind Cas 433). (AIR 1916 Cal 792) and 4. Rabidat v. Mt. Jawali (AIR 1946 Lahore 353) (FB) I have carefully gone through these decisions and in my opinion there is no disin these cases. The Hindu system recognises two sets of religious acts, name-pute with respect to the law enunciatedly those which are considered as essential for the salvation for the soul of the deceased and those which, though not essential or obligatory, are still pious observances which conduce to the bliss of the deceaseds soul. The powers of a Hindu female to alienate property are wider in respect of acts which conduce to the spiritual benefit of her deceased husband. The widow is entitled to sell the property, even the whole of it, if the income of the property is not sufficient to cover the expenses for such acts. In regard to alienations for pious observances, which are not essential or obligatory, her powers are limited to alienating only a small portion of the property. 15. A Hindu widow possessing a widows estate cannot alienate the property which has devolved on her except for special purposes. In regard to alienations for pious observances, which are not essential or obligatory, her powers are limited to alienating only a small portion of the property. 15. A Hindu widow possessing a widows estate cannot alienate the property which has devolved on her except for special purposes. To support and alienation for purely wordly purposes she must show necessity but she has a larger power of disposition for religious and charitable purposes which are supposed to conduce to the spiritual welfare of her husband. 16. In the instant case the learned Counsel has not been able to place any evidence on record except the recital made in the sale deed. It may be mentioned that even the recital in the sale deed is not indicative of the fact that she was alienating the property for the heavenly benefit of her deceased husband or for her ownself. It cannot be said on the reading of the sale deed that the transfer had been made for a religious or charitable purpose. It is also not clear whether the property covered by the transfer constituted a small or a reasonable portion of the entire estate. In my opinion, in the instant case there is nothing on record except the bald recital to satisfy the court that Smt. Kamlawati intended to transfer the said property according to the well settled notions of Hindu religion. It is also not clear that the purpose of transfer was based on any custom prevalent in the family. The reading of the will shows that there was enough income from the other property and she could have spent that amount for having heavenly benefit, Danpun or Pujapath. The purpose of alienation of the property, therefore, on the basis of the words as mentioned above is wholly insufficient to bring home that the property was sold by Smt. Kamlawati for legal necessity. 17. No other point has been pressed. 18. In view of the observations made above the appeal fails and is accordingly dismissed with costs. Appeal dismissed.