Prabhawati Devi v. Kamla Devi — 1986 DIGILAW 375 (ALL)

JUDGMENT 1. This is defendants' appeal. 2. The dispute is with respect to a house described by boundaries at the foot of the plaint and situate in district Mirzapur. Smt. Kamla Devi is the widow of Mahadev Prasad, who died on July 23, 1979. According to the case of Smt. Kamla Devi (plaintiff) this house belonged to her husband. He had five sons, namely, Kedar Nath, Badri Nath, Onkar Nath, Baikunth Nath and Pulloc alias Amar nath. Kedar Nath pre-deceased his father leaving Smt. Prabhawati, the widow and three sons, namely, Bachcha Lal, Raju and Sajan Lal. Smt. Prabhawati Devi and her three sons are the defendants Nos. 1 to 4 (appellants); the four other sons of Mahadev Prasad (besides Kedar Nath deceased) are proforma defendants Nos. 5 to 8 (respondents). 3. The plaintiff alleges that Mahadev Prasad executed a will in her favour on January 20, 1975, which was also registered. This house was bequeathed to her exclusively and she is, therefore, the owner and in possession thereof on this basis. Upon the death of Kedar Nath his widow shifted to her parents in district Jaunpur, but later the defendants 1 to 4 intended to disturb the plaintiff's possession over this house. Proceedings under S. 145, Code of Criminal Procedure were also initiated. Preliminary order was passed on March 31, 1979. The relief claimed is declaration that the house belongs to the plaintiff in the alternative possession is also claimed. 4. In defence Smt. Prabhawati (defendant No. 1) refused that the house was the self-acquired or exclusive property of Mahadev Prasad. There was no will executed by Mahadev Prasad in his lifetime nor was he competent to bequeath. About twenty years prior to the suit there was partition among Mahadev Prasad and his sons as a result whereof the house fell to the share of Kedar Nath. Alternatively the defendants claim to have acquired title by adverse possession. The bar of limitation under Article 64/65 Limitation Act, 1963, was pleaded as well. The defendants 2 to 4 filed separate written statement through their guardian raising the same pleas. No contest was put in by the other sons of Mahadev Prasad arrayed as defendants 5 to 8. 5. Alternatively the defendants claim to have acquired title by adverse possession. The bar of limitation under Article 64/65 Limitation Act, 1963, was pleaded as well. The defendants 2 to 4 filed separate written statement through their guardian raising the same pleas. No contest was put in by the other sons of Mahadev Prasad arrayed as defendants 5 to 8. 5. The trial Court recorded the findings that the house was purchased by Mahadev Prasad along with his brothers and that in the partition this fell to Mahadev Prasad exclusively as such he was competent to execute the will in respect of the entire house, including the machinery et cetera installed therein and Smt. Kamla Devi, the widow, therefore, is the absolute owner of this entire property. The defendants (appellants) have been living with the consent of Mahadev Prasad and thereafter the plaintiff. The appellants were unable to make out a case of adverse possession. In the result, the suit was decreed for declaration on 18th Dec. 1982. 6. Contention of the appellants' learned counsel, in the first place, is that Mahadev Prasad was incompetent to execute the will dated 20th January, 1975, and the Court below has erred in taking the view that the respondent No. 1 (plaintiff) became the exclusive owner of the house on the basis thereof. The plaint does not give the history of this house. It proceeds with the assertion that the house belongs to Mahadev, but the mode of acquisition is undisclosed. In the course of evidence it came to light that part of this property was purchased by Mahadev Prasad and his brothers, namely, Behari Lal and Sant Ram on 4th July, 1956, for a sum of Rs. 8,000/- from one Mathura and his wife (vide Exhibit 1). The rest was acquired by purchase by these same persons from one Kanhai on 9th September, 1958, for Rs. 2000/- (Exhibit 2). Smt. Kamla Devi (the plaintiff) testified to these transactions. These are not disputed before me in the appeal from the appellants' side. It is further disclosed that after the purchase there was re-construction; both Smt. Kamla Devi and her son Onkar Nath have deposed in regard to this construction. 2000/- (Exhibit 2). Smt. Kamla Devi (the plaintiff) testified to these transactions. These are not disputed before me in the appeal from the appellants' side. It is further disclosed that after the purchase there was re-construction; both Smt. Kamla Devi and her son Onkar Nath have deposed in regard to this construction. For Onkar Nath it may be said plausibly that being aged about 35 only in the year 1982, when he came to the witness box, he may not be claimed to have had personal knowledge in respect of the construction. It may not be overlooked, however, that DW Lal Mohammad, aged about 50 years, admits in express terms that the purchase was made by Mahadev and his two brothers and that all of them got the construction made jointly. This receives adequate support from the averments contained in the registered deed of partition dated 14th May, 1962 (vide Exhibit 4) to which Mahadev Prasad and his brothers Behari Lal and Sant Ram were parties. This deed recites in plain terms that they had continued joint in mess and business, including money lending et cetera and that it was only recently that differences had crept in. This evidently constitutes admission of Mahadev, the predecessor-in-interest of the parties, and nothing is shown on the record to discard the same. The property was acquired during the period Mahadev Prasad and his brothers were joint. The ordinary presumption is that this was joint property and was acquired for the benefit of the family and belonged to the members thereof jointly. There is no evidence to show that it was acquired exclusively with separate funds; (Harkesh Singh v. Mst. Hardevi, AIR 1927 All 454 ) (DB). In paragraph 9 of the written statement it was pleaded for the appellants vaguely that the house is of the time of the ancestors of Mahadev Prasad but there is no material before us to substantiate this nor is it alleged or shown that the family was possessed of any nucleus. Though, therefore, the property may not be said to be ancestral devolving upon Mahadev Prasad from his ancestors, it nonetheless constitutes joint family property. The averments in the deed of partition dated 14th May, 1962, referred to above, constitute material evidence in this behalf. 7. For the appellants-defendants there was a vain attempt in the Court below to establish that Kedar Nath (the husband of Sint. The averments in the deed of partition dated 14th May, 1962, referred to above, constitute material evidence in this behalf. 7. For the appellants-defendants there was a vain attempt in the Court below to establish that Kedar Nath (the husband of Sint. Prabhawati Devi) was the exclusive owner of the house. As rightly urged for the respondent there is hardly consistency in the case taken by Smt. Prabhawati Devi. In the statement made by her on oath in the Court of Munsif on 24th March, 1981, she gave her age as 33 years. It was stated that her marriage took place when she was about 15-16 years' old. Consequently she may not be credited with personal knowledge on the point of the purchase or acquisition of this house. It was stated by her that Kedar Nath got the house built, though no such pleading exists nor was she able to give any details in this respect. She then said that Kedar Nath trespassed over the house about twenty years earlier. In the written-statement the plea taken by her is that Kedar Nath got the house in partition. It is not easy to reconcile these versions. The partition among her father-in-law and his brothers took puce in 1962, of which she may not have personal knowledge. As I said above, DW Lal Mohammad, who is also a neighbouring resident, testified that the house was purchased in state of jointness by Mahadev Prasad and his brothers, who also raised the same. 8. The question arising is as to what would the position relating to this house in the hands of Mahadev Prasad subsequent to the partition among his brothers dated 14th May, 1962. Mahadev Prasad died on 23rd July 1979, the death of Kedar Nath took place in or about 1973-74. The three sons of Kedar Nath (appellants 2 to 4) were admittedly alive when Mahadev Prasad died. Counsel for the respondent-plaintiff contended that after partition the house assumed the character of separate property in the hands of Mahadev. I am unable to agree since this runs counter to the well established principle under the Hindu Law. 9. The three sons of Kedar Nath (appellants 2 to 4) were admittedly alive when Mahadev Prasad died. Counsel for the respondent-plaintiff contended that after partition the house assumed the character of separate property in the hands of Mahadev. I am unable to agree since this runs counter to the well established principle under the Hindu Law. 9. In Sudarsanam Maistri v. Narasimhulu, Maistri, (1902) ILR 25 Mad 149 (Bhachyam Ayyangar, J.) considered the principles of Hindu Law concerning the determination of the question whether the parties therein could be regarded as owning the property in question as members of a joint family. It was observed at page 155 :- "Even if the undivided family is not possessed of any nucleus of property which has come to it as `unobstructed heritage', it may be that, by act of parties, property acquired jointly by all the members or separately by one or more members thereof, can be impressed with the character and incidents of unobstructed heritage or joint property belonging to the main family or any of its branches." 10. The property thus acquired is not held as that of co-owners. Where the property was acquired by all the members of the undivided family by their joint labour, the learned Judge proceeded to lay down :- "It would, in the absence of any indication of intention to the contrary, be owned by them as joint family property and in that case their male issue, who, by their birth become members of such undivided family, necessarily acquire a right by birth in such property." 11. In(1908) ILR 32 Bom 479 Karsondas Dharamsey v. Gangabai Beman J. distinguishing the features of joint property, joint family property and joint ancestral property laid down that :- "It is obvious that there must have been a nucleus of joint family property before ancestral joint family property can come into existence, because the word ancestral connotes, descent and, therefore, pre-existence. But because it is true that there can be no joint ancestral family property without a previous nucleus of joint family property it is not true that there cannot be joint family property without a pre-existing nucleus, for that would be identifying joint family property, with ancestral joint family property." 12. But because it is true that there can be no joint ancestral family property without a previous nucleus of joint family property it is not true that there cannot be joint family property without a pre-existing nucleus, for that would be identifying joint family property, with ancestral joint family property." 12. The learned Judge observed also in this connection :- "Where there is ancestral joint family property, every member of the family acquires by birth an interest in it, which cannot be defecated by individual alienation or disposition of any kind. And this, in my opinion, with respect to any judicial decisions to the contrary is equally true of joint family property." 13. The share taken on partition by the father of the plaintiffs and defendant is ancestral property in which from their birth his sons acquire an interest Lal Bahadur v. Kanhaiya Lal : (1907) ILR 29 All 244 (Privy Council). 14. To constitute joint family property it is not necessary to have ancestral nucleus. Members of the joint family may acquire property either by joint labour or by any other modes and enjoy the same as joint family property. In the absence of any indication to the contrary it will be presumed to be joint family property. And once the character of property as joint family property is established, it follows that the male issue of the acquirer will get a right in it by birth. Krishnamurthi v. Seetamma, AIR 1937 Mad 29 . The similar view is expressed in Gulab Chand v. Manni Lal, AIR 1941 Oudh 230 DB. It was held that even if the son is born after the disruption of the joint family property by partition, he is entitled to claim by birth an interest in the property allotted to his father on partition. 15. Mulla; Principles of Hindu Law (XV Edn.) 1982 p. 291 also is of opinion that the share which a coparcener obtains on a partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently (see also L. Basant Lal v. Rameshwar Prasad, AIR 1957 All 287 )(DB). In Hindu Law, Vol. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently (see also L. Basant Lal v. Rameshwar Prasad, AIR 1957 All 287 )(DB). In Hindu Law, Vol. I (3rd Edn.) (1981) at page 120 S.V. Gupte observes that the male issue of a coparcener acquires by birth alone "an interest in the joint family property, whether ancestral or otherwise. Where a partition takes place and a share of such property is allotted to a coparcener the share so allotted to him is in his hands ancestral as regards his own male issue; in other words, the right to take by birth an interest in ancestral or other joint family property cannot be defeated by partition". The settled view is that the male issue acquires such interest in property acquired by the members of the joint family by their joint labour or in joint business, although it is acquired without the aid or assistance of family property. Similarly the male issue will acquire such interest in other joint family property, such as property which has assumed the character of joint family property by being thrown into the common stock. (page 137). 16. Consideration made as above leaves no room to doubt and I accordingly find that the property was acquired by purchase by Mahadev Prasad and his two brothers in state of jointness by purchase made in 1956-58 for consolidated amounts and was reconstructed by them with their joint earning. Despite the partition, which took place on 14th March, 1962, the property in the hands of Mahadev Prasad was ancestral as regards his own male issue. 17. It is next to be considered whether Mahadev Prasad could bequeath by will the whole or any part of the property allocated to him in the partition. The position under the Hindu Law earlier was that no coparcener could dispose of the whole or any portion of the joint family property including his undivided share by will. The principle underlying was that title by survivorship is prior and has to take precedence to the exclusion of that by devise. (vide M.N. Aryamurthy v. M.L.S. Settey, AIR 1972 SC 1279 . The principle underlying was that title by survivorship is prior and has to take precedence to the exclusion of that by devise. (vide M.N. Aryamurthy v. M.L.S. Settey, AIR 1972 SC 1279 . This part of the old Law has been amended by the Hindu Succession Act 1956 to the extent it Provides in S.30 that a coparcener can dispose of his interest in a Mitakshara joint family property by will or other testamentary disposition. The Explanation to S. 30 provides, inter alia, that the interest of a male Hindu in a Mitakshara coparcenary property shall, notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of S. 30. Commenting upon this Mulla in his treatise at page 1041 points that the rule of Mitakshara Law is now abrogated by the Explanation which lays down in explicit terms that such interest is to be deemed to be property capable of being disposed of by will notwithstanding anything contained in any provision of the Act or any other law for the time being in force. Gupte observes likewise at pages 279/290. It would follow, therefore, that Mahadev Prasad could be competent to bequeath to the extent of his share alone in the house property which comes to ?th. The will for the rest of the house is to be regarded as void keeping in view S. 30, Hindu Succession Act, 1956. 18. The other contention of the appellants' learned counsel is in regard to the interpretation of the provisions contained in the will dated 20th January, 1975, executed by Mahadev Prasad. The execution thereof is not disputed before me. PW Shitla, an attesting witness, has testified to the execution and attestation; Smt. Kamla Devi has affirmed it also and it is not questioned that Mahadev Prasad was in disposing mind desirous as he was to avert dispute relating to property subsequent to his death. Clause (1) of the will recites that for so long as the testator remains alive, he shall be the owner of the property both movable and immovable. In Clause (2) it is said that on his death the wife Smt. Kamla Devi shall be the owner (Malik) of the property which survives. Clause (1) of the will recites that for so long as the testator remains alive, he shall be the owner of the property both movable and immovable. In Clause (2) it is said that on his death the wife Smt. Kamla Devi shall be the owner (Malik) of the property which survives. The provision made in Clause (3) is to the effect that subsequent to Smt. Kamla's death the persons enumerated thereinafter shall be owners (Malik) of the property that subsists. Then follows detailed provisions in the instrument reciting : (i). in regard to the house in dispute, that Onkar Nath shall be the owner of the eastern half; the western half shall belong to the three sons of Kedar Nath and Smt. Prabhawati Devi (widow of Kedar Nath) and further that Rustam Engine kept inside this house shall belong to Onkar Nath and the meter and the flour mill to Kedar Nath's sons; (ii) in regard to another house (not in dispute) that the eastern ?rd shall belong to Amar Nath; 1 /3rd to Badri Prasad towards the west and the middle ?rd to Baikunth Nath and that the bhumidhari land shall go to the four sons of the testator and Kedar Nath's sons equally, that is, ?th each set. 19. This in brief is the scheme of the will in question. For the respondent, plaintiff it was argued that as per Clause (3) the other persons could have that property only as subsists on Smt. Kamla's death meaning thereby that her estate would in itself be absolute. For the appellants the submission is that she was given only life estate for that alone would be consistent with the tenor of the entire instrument. I have given careful consideration to the submissions but do not find myself in agreement with what the respondent contends in this respect. The settled principle is that the will must be construed in such a manner as to find out the true intention of the executant. For that the rule is that the will must be read as a whole. Secondly the expression must be read consistently (Dilharshankar C. Bhachech v. Controller of Estate Duty (1986) 1 SCC 701 : AIR 1986 SC 1707 (pars 48). The intention is collected from the whole will. For that the rule is that the will must be read as a whole. Secondly the expression must be read consistently (Dilharshankar C. Bhachech v. Controller of Estate Duty (1986) 1 SCC 701 : AIR 1986 SC 1707 (pars 48). The intention is collected from the whole will. A will is constructed in the same way as any other document subject to this, that, if the intention is shown, the mode of expression of that intention and the form and language of the will are unimportant. The general or paramount intention prevails against a particular or subordinate intention which is inconsistent with or does not carry out all the intentions which the testator has or is presumed to have. In such an event the particular intention must be rejected or modified and the general intention of the testator carried into effect. (William on Wills 5th Ed. (1980) pp. 427-28) : It is instructive for this purpose to recall the principle which the Supreme Court laid down in Ramchandra Shenoy v. Mrs. Hilda Brite (1964) 2 SCR 722 : ( AIR 1964 SC 1323 ): "It is one of the cardinal principles of construction of Wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid, the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy so that the effect could be given as far as possible to every testamentary intention contained in the Will. It is for this reason that where there is a bequest to `A' even though it be in terms apparently absolute followed by a gift of the same to `B' absolutely "on" or "after" or "at" A's death. A is prima facie held to take a life interest and B an interest in the remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B". (Emphasis supplied). 20. In the present case the property bequeathed is not immovable alone but also movable. A is prima facie held to take a life interest and B an interest in the remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B". (Emphasis supplied). 20. In the present case the property bequeathed is not immovable alone but also movable. The testator took meticulous care to apportion the shares (including the directions) and has tried to be, as far as possible, equitable and fair to each of his sons and also the progeny of Kedar Nath deceased, besides making provisions for his own wife. The predominant intention would appear to be to confer absolute estate in the remainder subsequent to Smt. Kamla's death to his sons and their descendents. The construction placed should not be such as defeats this integral part of the disposition. If the interpretation suggested for the respondent were adopted, it would follow that Smt. Kamla might dispose of the entire legacy during her lifetime leaving little or nothing for their sons or the succeeding generations. This would not be consistent with the purposeful allocation carefully made in favour of the different branches. The intention of the testator dogs not seem to have been to deprive his descendants of all benefit over the estate but only to postpone it till his wife's lifetime. In my opinion, without being required to overstrain the language employed, it can be reasonably concluded that the disposition made in favour of Smt. Kamla Devi (respondent-plaintiff) is not absolute and it operates to the extent of ?th share only so far as the house in dispute is concerned which Mahadev Prasad is competent to bequeath. 21. Regarding the machinery such as the flour mill and oil expeller installed in this premises the plaintiffs case is that these were purchased by Mahadev Prasad exclusively and set up by him. There is corroboration to this by PW Ramji aged about 85, who resides at a negligible distance of 100-200 yards and deposed on personal knowledge. On the contrary Smt. Prabhawati Devi maintained that these were purchased or installed by her husband Kedar Nath deceased. Her deposition to this effect is eroded substantially by DW Lal Mohammad, who points out that Mahadev Prasad had installed these machineries and Kedar Nath was only assisting his father in running the same. On the contrary Smt. Prabhawati Devi maintained that these were purchased or installed by her husband Kedar Nath deceased. Her deposition to this effect is eroded substantially by DW Lal Mohammad, who points out that Mahadev Prasad had installed these machineries and Kedar Nath was only assisting his father in running the same. This also seems probable DW Bechan stated that about twenty years ago he had done some wood work at the foundation of the flour mill for which the payment was made by Kedar Nath. It does not follow from this necessarily that these were owned by Kedar Nath. The theory put forward by Lal Mohammad to the effect that Mahadev Prasad was being assisted by Kedar Nath in running the machinery is plausible. The sons of Mahadev Prasad, he states, worked for and on his behalf. I am not satisfied, therefore, from the evidence placed on the record that these were not exclusive properties of Mahadev Prasad and, therefore, he was competent to bequeath the same in the manner he has done. For so long as Smt. Kamla Devi is alive, the appellants can lay no claim to any part of this machinery. 22. For the discussion made in the above, the appeal succeeds in part. The suit shall stand decreed for declaration to the effect that Smt. Kamla Devi is the life estate holder to the extent of ?th share only in the house in dispute and of the entire machinery et cetera installed therein. Costs shall be borne by the parties throughout.