Cases Referred:

Advocates:
ARUN MOHAN, ASHOK GROVER, CHITRA MARKANDEYA, J.R.DAS, K.N.TRIPATHI, M.C.BHANDARE, M.R.CHAWLA, S.S.JAUHAR

ORDER

B. P. Jevvan Reddy, J.

1. Third defendant is the appellant. He along with Defendants Nos. 4 and 5 is the alienee of the house properly, which is the subject-matter of these appeals. Second defen-dant is the brother of third defendant and father of Defendants Nos. 4 and 5. Defendants Nos. 2, 4 and 5 are figuring as respondents in these appeals but are supporting the third defendant.

2. Plaintiff and defendants Nos. 6 to 8 are the daughters of late Ram Nath Dewan while the first defendant is the son of Ram Nath Dewan. First defendant and second defendant have married sis-ters. First defendant was practically settled in U.S.A. along with his family. He appointed the second defendant as his General Power of Attorney. Acting as the General Power of Attorney of first defendant, the second defendant executed a sale deed in respect of No. 5, Doctors Lane. New Delhi (the house property which is the subject-matter of these appeals, which shall be referred to hereinafter as "Doctors Lane") in favour of his brother (defendant No. 3) and sons (defendant Nos. 4 and 5).

3. The plaintiff, daughter of late Ram Nath is seeking to avoid the sale of the said house property in the present suit for partition and separate possession of her 1/5th share. The other daughters, defendants Nos. 6 to 8, are tacitly supporting the plaintiff, though they have remained ex PARTE. The first defendant too has remained ex parte. He did not even file a written statement. He died pending the suit. His legal representatives, all of whom are residing in U.S.A., have also not chosen to appear in the suits appeals. Thus, the contest has been between plaintiff on one side and defendants Nos. 2 to 5 on the other.

4. RELEVANT FACTS :

Ram Nath Dewan was a self-made man. He earned substantial properties in Delhi. He married a little late in life. His wife, Satyawati, was younger to him by at least fifteen years, if not more. They had a sun first defendant) and four daughters (plaintiff and defendants Nos. 6, 7 and 8). With a view to provide a secure life to his wife. Ram Nath made a Will on 10th day of April, 1942 whereunder he bequeathed one of his properties, viz., No. 5. Doctors Lane, New Delhi to Satyawati for life. He provided that after Satyawatis death, the said property shall go to his legal heirs. Ram Nath died in the year 1953.

5. Soon after the death of Ram Nath, disputes arose between the mother and the son. The sou (first defendant) put forward another Will said to have been executed by Ram Nath on September 26, 1950 superseding the earlier Will, as many as seven suits came to be instituted between the mother and the son. In January 1955, a settlement was arrived at between them. Under this settlement, the mother. Satyawati. was given a right to reside in the first floor of the Doctors Lane house. The son was to pay her Rs. 125/- per month as maintenance allowance. If the mother did not intend to reside in the said first floor, the son was to pay her Rs. 150/- per month as maintenance allowance. Provision was made for the marriage of the youngest daughter. It was affirmed that No. 58. Todar Mal Road, Now Delhi, is the exclusive property of the mother but she undertook not to transfer the property in any manner whatsoever. After her death, the wife of the first defendant was to be the owner of the said property. Certain jewellery and other articles were also given to the mother. A joint statement in the above terms was submitted into the Court on January 27, 1955 and the suits disposed of in terms of the settlement on the same day.

6. The first defendant, Rajender Nath, was practically settled in U.S.A. along with his family. He appointed his co-son-in-law. Sri G. C. Sharma (second defendant) as his General Power of Attor-ney in respect of his properties in India. On March 4, 1971, the second defendant executed a sale deed in respect of the Doctors Lane house in favour of his brother (third defendant) and his own two sons (defendants Nos. 4 and 5). Satyawati died on July 2, 1972. Soon thereafter, the present suit for partition was filed in respect of all the properties left by Ram Nath and Satyawati. The plaintiff disputed the validity of the sale deed executed by the second defendant on more than one ground. She asked for a declaration to that effect. She claimed a 1/5th share in all the properties including the suit house. According to her each of the defendants Nos. 1 and 6 to 8 were entitled to 1/5th share.

7. The plaintiffs case in brief, as set out in the plaint, is this: the Doctors Lane house was constructed by Ram Nath on the land obtained by him on perpetual lease from the Secretary of State for India in Council. Ram Nath made a Will on April 10, 1942 bequeathing the said house to his wife. Satyawati, for her life. He provided that on her death, it will devolve upon his "legal heirs". Ram Nath and Satyawati owned certain other properties also in Delhi. All the said properties are liable to be divided among plaintiff, defendant No. 1 and defendants Nos. 6 to 8 in equal shares. The plaintiff is in joint possession of the said properties along with defendant Nos. 1 and 6 to 8. Only after the death of her mother, has the plaintiff come to know of the General Power of Attorney executed by the first defendant in favour of the second defendant and the sale of the Doctors Lane house by the second defendant to defendants Nos. 3 to 5. When she demanded partition of all the properties including the Doctors Lane house, the first defendant demurred. He alleged that in the year 1955, there was a settlement between himself and Satyawati whereunder she had surrendered the Doctors Lane house in his favour retaining only a right of residence in the first floor. The plaintiff does not admit the truth and validity of the said settlement. In any event, the settlement, if any, cannot affect the rights of the daughters (plaintiff and defendants Nos. 6 to 8) in the said properties since they were not parties to the said settlement. The first defendant had no right whatsoever in the Doctors Lane house during the lifetime of Satyawati. He or his Power of Attorney holder had, therefore, no right to execute a sale deed in respect of the said Doctors Lane house. The Power of Attorney and the sale deed are both illegal, invalid, fictitious, sham, collusive, void and without consideration and are not binding upon the plaintiff and her sisters. Pending the suit, the plaintiff asked for an amendment of the plaint seeking relief of possession of her 1/5th share in the Doctors Lane house. The amendment was allowed on December 6, 1983 with a direction that the said amendment shall be effective only from the date of the said order.

8. The second defendant filed a written statement disputing the several averments in the plaint insofar as they concerned him. Defendants Nos. 3 to 5 filed a joint written statement defending the alienation in their favour. They submitted that the Will dated April 10, 1942 was revoked by another Will dated September 26, 1950 made by Ram Nath. In any event, the settlement arrived at between Satyawati and the first defendant on January 27, 1955 is binding upon all who claim through Satyawati. Under the said settlement. Satyawati surrendered all her right, title and interest (life interest) in the Doctors Lane house in favour of the first defendant, retaining a mere right of residence in the first floor. The first defendant thus became the absolute owner of the Doctors Lane house and therefore, the sale deed executed by his Power of Attorney is good and valid. As a matter of fact, the Doctors Lane property was resumed and entered upon by the President of India. At the intervention of defendants Nos. 3 to 5, however, a supplementary lease deed (perpetual lease) dated June 3, 1952 was executed by the President of India in favour of defendants Nos. 3 to 5.

9. The learned Single Judge of the Delhi High Court, who tried the suit, dismissed the suit insofar as the Doctors Lane house is concerned but decreed it insofar as other properties are concerned. The learned Judge held that by virtue of the settlement dated January 27, 1955. Satyawati surrendered all her right title and interest in the Doctors Lane house in favour of her son. first defendant, who was the only legal heir of Ram Nath on the date of the said settlement. The first defendant thus became the absolute owner of the Doctors Lane house. Inasmuch as the first defendant has not disputed the correctness of the sale deed executed by the second defendant in favour of defendants Nos. 3 to 5, the sale of the Doctors Lane house in favour of the said defendants is good and valid.

10. Only the plaintiff appealed under Clause 10 of Letters Patent against the judgment of the learned single Judge. The Division Bench allowed the appeal on the following findings:

(1) The Will dated April 10, 1942 made by Ram Nath is true, valid and effective.

(2) The Will put forward by Defendants Nos. 2 to 5, said to have been executed by Ram Nath on September 25, 1950 in favour of the first defendant is not proved to have been executed by Ram Nath.

(3) The interest created in Satyawati under the 1942 Will is a life estate and not a widows estate. While a widows estate could be surrendered in favour of the nearest reversioner(s), the life estate cannot be so surrendered. In any event, since the alleged surrender under the settlement dated January 27, 1955 was not total and complete, it was no surrender in law. As a matter of fact, the 1942 Will expressly prohibited Satyawati from transferring the said property during her life lime.

(4) While it is true that in the year 1942 when the Will was executed, first defendant. Rajender Nath, was the only "legal heir" of Ram Nath but the Will contemplates that the Doctors Lane house shall devolve upon the legal heirs of the testator on the death of Saiyawati. On the date of the death of Saiyawati, not only the first defendant (the son) but the daughters also w ere the "legal heirs" by virtue of the Hindu Succession Act. 1956. Each of them is entitled to 1/5th share in the disputed house.

(5) On the language of the 1942 Will, it is the exception to Section 111 of the Indian Succession Act, 1925 that applies and not Section 119 or for that matter Section 120. Since it was a bequest to a class, the class has to be ascertained on the death of the interposer. "To the extent of the application of exception to Section 111 of the Succession Act, it (bequest under the Will in favour of legal heirs) was contingent".

11. On the above findings, the Division Bench held that Plaintiff, first defendant and Defendants Nos. 6 to 8 are entitled to 1/5th share each in the Doctors Lane house, inasmuch as the first defen-dant or his legal heirs did not question the sale deed dated March 4, 1971. Defendants Nos. 3 to 5 will be entitled only to the 1/5th interest of the first defendant in the Doctors Lane house. The judgment of the Division Bench is questioned by the third defendant in these appeals who is supported, as stated above, by Defendants Nos. 2, 4 and 5.

CONTENTIONS OF THE PARTIES:

12. Sri Arun Mohan, learned counsel for the appellant, urged the following contentions :

(i) Even if the Will dated September 25, 1950 is held not established and the 1942 Will is taken to be the true and effective Will, even then the Doctors Lane house must be held lo have become the absolute property of the first defendant under and by virtue of the settlement dated January 27, 1955. Saiyawati had only a right to reside on the first floor during her life time and no more. The plaintiff has neither pleaded nor relied upon Section 14 of the Hindu Succession Act. 1956 nor is it her contention lhal Saiyawati became the absolute owner of the first floor by virtue of Section 14. She cannot, therefore, be allowed to raise the said plea for the first time in these appeals. As a matter of fact, the Doctors Lane house was resumed by the President of India in terms of the grant and later granted on perpetual basis to Defendants Nos. 3 to 5 by order dated June 3, 1952.

(ii) In law succession is never in abeyance. On the lanugage of the Will. it is Section 119 -- and in particular illustration (iii) thereto that applies. It means that while the life estate devolved upon Satyawati on the death of Ram Nath, the remainder interest vested simultaneously in the first defendant, he being the only legal heir on the date of the death of Ram Nath. The vesting of remainder interest is not postponed till the date of death of the interposer, Satyawati.

(iii) The Division Bench of the High Court was in error in holding that the exception to Section 111 applies in this case. The said exception contemplates bequest to "a class of persons described as standing in a particular degree of kindred to a specified individual". In this case, neither the bequest is to a class of persons nor were the persons in whose favour the bequest was made stood in a parlicular degree of kindred to a specified individual. The words "a specified individual" in the said exception do not and cannot comprehend the testator. They refer to a person other than the testator. The High Court was also in error in holding that Section 120 of the Indian Succession Act is attracted. That section applies only to a bequest which is contingent and here the bequest is certainly not contingent.

(iv) Though Satyawati was alive for about seventeen years after the 1955 settlement, she never questioned the said settlement. On the contrary, by her conduct, she always affirmed the ownership of the first defendant over the Doctors Lane house. As a matter of fact, she was not even living in the first floor wherein she was given a right to reside under the said settlement. In such a situation. Section 14 of the Hindu Succession Act has no application since she was not possessed of the said properly -- not even of the first floor, on the date of the coming into force of the said Act.

(v) The life estate holder is also entitled to surrender his/her interest in favour of the remaindermen. The requirement of a total and complete surrender applicable in the case of widows estate is not applicable in the case of a limited estate.

(vi) The suit is barred by limitation. This suit, as originally filed, was based upon the plea of joint possession even with respect to the Doctors Lane house which is admittedly untrue and untenable. The relief of possession was added by amending the plaint only on December 6, 1983. This date is beyond twelve years from the date of sale in favour of Defendants Nos. 3 to 5. Defendants Nos. 3 to 5 have perfected their title by adverse possession, in any event.

13. On the other hand. Shri M. C. Bhandare, learned counsel for the respondent-plaintiff, urged the following contentions while supporting Ihe reasoning and conclusion of the Division Bench:

(1) The case of Defendants Nos. 2 to 5 is not only unjust but is based upon fraud. The second defendant, who is a senior advocate practicing at Delhi, took unfair advantage of the faith reposed in him by the first respondent, his co-son-in-law, and cheated him out of his property by executing a sale deed for a nominal consideration in favour of his own brother and sons. Because the first defendant was settled in America along with his family and was not taking proper interest in his properties and affairs in India, the second defendant got an opportunity which he made full use of for his own unjust enrichment. This factor is relevant because these appeals are filed under Article 136 of the Constitution of India.

(II) The alleged family settlement arrived at on January 27, 1955 was not a voluntary one. The defenceless widow was confronted by her own son who put forward a rival but false Will said to have been executed by Ram Nath whereunder he sought to deprive Satyawati of all her interest in the Doctors Lane house under the 1942 Will. As many as seven suits were pending. There was also an arbitration by one Chanan Ram, referred to in the said joint statement. Under the settlement, Satyawati was deprived of her life estate in the Doctors Lane house and she was given a partly sum of Rs. 125/- per month along with a mere right of residence in the first floor. It was further provided that if she did not choose to reside in the said first floor, she would be given extra Rs. 25/- per month. The entire settlement was unjust and unfair to the widow.

(III) That the interest created in Satyawati under the 1942 Will is a life estate and not a widows estate as rightly held by the Division Bench. The 1942 Will placed an express prohibition against transfer of her interest by Satyawati. The so-called surrender is in reality a transfer of her interest and hence barred by the Will. Once the said settlement goes, the 1942 Will stands in its full effect. Satyawati became the aboslute owner of the said property by operation of law, viz., Section 14 of the Hindu Succession Act, 1956. The sale of the Doctors Lane house by the first defendant or his Power of Attorney holder is, therefore, of no effect and incompetent.

(IV) On the clear language of the Will. Section 119 of the Indian Succession Act is not attracted. The Will clearly indicates that the devolution of interest upon the legal heirs of the testator was to take place on the death of Satyawati. It was a case of bequest to a class within the meaning of the excep-tion to Section 111. Because of the said contrary intention in the Will. Section 119 is not at all attracted. It is the exception to Section 111 that applies.

(V) The duty of Court in the case of construction of a Will is always to give effect to the intention of the testator. The intention of Ram Nath is made clear beyond any doubt by the clear words used in the Will, according to which Satyawati was to be the life estate holder and that "after her (devisee) death" the property was to go to the "legal heirs of the testator". On the death of Satyawati (devisee), the legal heirs of the testator were the son and four daughters of Ram Nath and it is they who succeeded to the said property in equal shares.

(VI) Even if the plaintiff has not expressly pleaded or relied upon Section 14 of the Hindu Succession Act, 1956 in the plaint, she is yet entitled to rely upon the said provision. The plaintiff has made it clear at more than one place in the plaint that she is claiming her right in the Doctors Lane house and other suit properties not only under her father. Ram Nath, but also under her mother, Sataywati. In the light of the said specific pleading, the plaintiff is entitled to rely upon Section 14 of the Hindu Succession Act.

(VII) The plea of limitation is wholly untenable. The plaintiff and other legal heirs of Ram Nath succeeded to The Doctors Lane house only on the death of Satyawati who was the limited estate holder. During the life time of Satyawati, they had no right to, nor were they obliged to, challenge the alienation of the Doctors Lane house from the date of death of Satyawati. Even the amendment of the plaint including the relief of possession, granted on December 6, 1983 is within a period of twelve years.

THE 1942 WILL AND THE 1955 SETTLE-MENT :

14. For a proper appreciation of the contentions, it is necessary to set out the 1942 Will as a whole :

"DEED OF WILL.

1. Mr. Ram Nath Dewan S/o Pt. Mool Raj caste Brahmin resident of No. 5 Doctors Lane, New Delhi hereinafter called the testator made this Will without any persuasion fraud and collusion in favour of my wife. Shrimati Satyavati Dewan daughter of Pt. Alma Ram Vedi hereinafter called the Devisee. Now this deed witnesses as follows:

1. That the testator bequeaths the use, enjoyment and interest of my house on part plot No. 5, in blockk No. 88. Doctors Lane. New Delhi worth Rs. 50,000/ - in my said wife, the devise during her life after his (testator) death and declares that after her (devisee) death the property will go to the legal heirs of the testator.

2. That the said devisee will continue to live in the said house according to her sweet will and shall also have a right to give the said property on rent to any tenants.

3. That the said devisee shall have no right to transfer the property in any way whatsoever.