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PETITIONER:

DR. MAHESH CHAND SHARMA

Vs.

RESPONDENT:

SMT RAJ KUMARI SHARMA AND ORS

DATE OF JUDGMENT01/12/1995

BENCH:

JEEVAN REDDY, B.P. (J)

BENCH:

JEEVAN REDDY, B.P. (J)

MAJMUDAR S.B. (J)

CITATION:

1996 AIR 869 JT 1995 (8) 466

1995 SCALE (6)809

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

B.P. JEEVAN REDDY, J.

Third defendant is the appellant. He along with

defendant Nos.4 and 5 is the alienee of the house property,

which is the subject-matter of these appeals. Second

defendant is the brother of third defendant and father of

Defendant is the brother of third defendant and father of

Defendant Nos.4 and 5. Defendant Nos.2, 4 and 5 are figuring

as respondents is these appeals but are supporting the third

defendant.

Plaintiff and Defendant Nos.6 to 8 are the daughters of

late Ram Nath Dewan while the first defendant is the son of

Ram Nath Dewan while the first defendant is the son of Ram

Nath Dewan. First defendant and second defendant have

married sisters. 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, Doctor's

Lane, New Delhi (the house property which is the subject-

matter of these appeals, which shall be referred to

hereinafter as "Doctor's Lane") in favour of his brother

(Defendant No.3) and sons (Defendant Nos.4 and 5).

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, Defendant 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 representative, 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

Defendant Nos.2 to 5 on the other.

RELEVANT FACTS:

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---------------

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 atleast

fifteen years, if not more. They had a son (First defendant)

and four daughters (plaintiff and Defendant 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

Satyawati's death, the said property shall go to his legal

heirs. Ram Nath died in the year 1953.

Soon after the death of Ram Nath, disputes arose

between the mother and the son. The son (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

Doctor's 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, New 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.

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 Attorney in respect of his properties in

India. On March 4, 1971, the second defendant executed a

sale deed in respect of the Doctor's Lane house in favour of

his brother (third defendant) and his own two sons

(Defendant 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 Defendant Nos.1

and 6 to 8 were entitled to 1/5th share.

The plaintiff's case in brief, as set out in the

plaint, is this: the Doctor's 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 Defendant 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 9. 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

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the Doctor's Lane house by the second defendant to Defendant

Nos.3 to 5. When she demanded partition of all the

properties including the Doctor's 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 Doctor's 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 Defendant

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 Doctor's Lane house during the life

time of Satyawati. He or his Power of Attorney holder had,

therefore, no right to execute a sale deed in respect of the

said Doctor's 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 Doctor's 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.

The second defendant filed a written statement

disputing the several averments in the plaint insofar as

they concerned him. Defendant 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 Doctor's 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 Doctor's Lane house and,

therefore, the sale deed executed by his Power of Attorney

is good and valid. As a matter of fact, the Doctor's Lane

property was resumed and entered upon by the President of

India. At the intervention of Defendant 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

Defendant Nos.3 to 5.

The learned Single Judge of the Delhi High Court, who

tried the suit, dismissed the suit insofar as the Doctor's

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

Doctor's 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 Doctor's Lane house. Inasmuch as the

first defendant has not disputed the correctness of the sale

deed executed by the second defendant in favour of Defendant

Nos.3 to 5, the sale of the Doctor's Lane house in favour of

the said defendants is good and valid.

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.

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------------------------------------------------------------

*The legal representatives of the first defendant also filed

an appeal, R.F.A.No. 15 of 1984 but that appeal related to

some other property and hence has no relevance herein. The

said appeal was disposed of by the Division Bench on the

same day, i.e., March 25, 1984. The legal representatives of

the first defendant have not preferred any appeal to this

Court.

(2) The Will put forward by Defendant 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 widow's estate. While a widow's

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 time.

(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

Doctor's Lane house shall devolve upon the legal heirs of

the testator on the death of Satyawati. On the date of the

death of Satyawati, not only the first defendant (the son)

but the daughters also were the "legal heirs" by virtue of

the Hindu Secession 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 Secession 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".

On the above findings, the Division Bench held that

Plaintiff, first defendant and Defendant Nos.6 to 8 are

entitled to 1/5th share each in the Doctor's Lane house.

Inasmuch as the first defendant or his legal heirs did not

question the sale deed dated March 4, 1971, Defendant Nos.3

to 5 will be entitled only to the 1/5th interest of the

first defendant in the Doctor's Lane house. The judgment of

the Division Bench is questioned by the third defendant in

these appeals who is supported, as stated above, by

Defendant Nos.2 4 and 5.

CONTENTIONS OF THE PARTIES:

---------------------------

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 Doctor's Lane house must be

held to have become the absolute property of the first

defendant under and by virtue of the settlement dated

January 27, 1955. Satyawati 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 Secession Act, 1956 nor is it her contention that

Satyawati 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 Doctor's Lane house was resumed by the

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President of India in terms of the grant and later granted

on perpetual basis to Defendant Nos.3 to 5 by order dated

June 3, 1952.

(ii) In law, succession is never in abeyance. On the

language 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 particular

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

Doctor's 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 property - 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 remainder-men. The

requirement of a total and complete surrender applicable in

the case of widow's 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 Doctor's 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 Defendant Nos.3 to 5. Defendant Nos.3 to 5

have perfected their title by adverse possession, in any

event.

On the other hand, Sri M.C. Bhandare, learned counsel

for the respondent-plaintiff, urged the following

contentions while supporting the reasoning and conclusion of

the Division Bench:

(I) The case of Defendant 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

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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

Doctor's 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 Doctor's 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 widow's 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 absolute owner of the said property by

operation of law, viz., Section 14 of the Hindu Succession

Act, 1956. The sale of the Doctor's 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 exception 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 (devise) death" the property was to go to the "legal

heirs of the testator". On the death of Satyawati (devise),

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

Doctor's Lane house and other suit properties not only under

her father, Ram Nath, but also under her mother, Satyawati.

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

Doctor's 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 Doctor's Lane house from the

date of death of Satyawati. Even the amendment of the plaint

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including the relief of possession, granted on December 6,

1983 is within a period of twelve years.

THE 1942 WILL AND THE 1955 SETTLEMENT:

--------------------------------------

For a proper appreciation of the contentions, it is

necessary to set out the 1942 Will as a whole:

"DEED OF WILL

I, 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

Satya Vati Dewan daughter of Pt. Atma

Ram Vedi hereinafter called the Devise.

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

block 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 (devise)

death the property will go to the

legal heirs of the testator.

2. That the said devise 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 devise shall

have no right to transfer the

property in any way whatsoever.

4. That the said devise will be

whole and sole manager and

beneficiary of the said property

during her life and shall possess a

right to make any alteration and

addition in the building

accommodation in accordance of her

sweet will and desire. No legal

heir of the testator shall have any

right to object to that.

5. That the devise will realise

the rent of the said property if

any and appropriate and spend it on

herself or anyone else in

accordance of her sweet will. No

legal heir of the testator shall

have any right to interfere in

that.

6. That no legal heir of the

testator shall be entitled to live

in the said house without

permission of the said devise

during her life and said devise

will have right to eject any person

living in the house at the time of

the testator's death.

7. That the said devise shall be

liable to pay the lease money (Land

Rent) to the Government either from

the income derived from the house

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or from her own pocket.

8. That the repair of the house

will depend upon the sweet will of

the devise.

In witnesses whereof, I, Mr. Ram Nath

Dewan, the testator have put my

signature to this my Will this 10th day

of April 1942 in present of the

attending witnesses:

sd/- Ram Nath Dewan

We are not setting out the 1950 Will put forward by

Defendant Nos.3 to 5 inasmuch as it is held not proved by

both the learned Single Judge and the Division Bench of the

High Court and no effort was made before us to challenge the

said concurrent finding. It is, however, necessary to set

out the settlement arrived at between Satyawati and the

first defendant on January 27, 1955. It reads:

"Joint statement of Shri Rajender Nath

Dewan Plaintiff and Smt. Satyavati

Defendant dated 27.1.1955 recorded in

Suit No.689/54 titled `Rajender Nath

Dewan verses Satyavati' decided on

27.1.1955 by Shri S.S. Kalha, SJIC

Delhi.

ENGLISH TRANSLATION

Statement of Shri Rajender Nath

Dewan plaintiff and Smt. Satyavati

Defendant on Solemn affirmation: The

parties have compromised to the effect

that the award of Shri Chanan Ram

Arbitrator be set aside. The defendant

will reside on the Ist floor of No.5,

Doctors Lane, New Delhi. The plaintiff

will pay her Rs.125/- per month as

maintenance allowances. The defendant

will arrange for her food separately at

her own expense. In case the defendant

does not intend to reside in the

aforesaid portion, the plaintiff will

pay her Rs.150/- per month as

maintenance allowance. In case the

defendant resides at the aforesaid place

but takes meal with the plaintiff then

the plaintiff will pay her Rs.50/- per

month as maintenance allowance. The

defendant shall not sublet the aforesaid

property and she will not keep Mayadevi

(and another person whose name is

illegible) with her. Dr. Vidyavati or

Shri Rishikesh or their family members

also will not reside with the defendant

but they will be free to visit the

defendant at the said place. There are

Postal Certificates of the value of

Rs.5000/- in the name of defendant and

the deceased Dewan Ram Nath which

certificates are lying in safe custody

with the Palai Central Bank, New Delhi.

The defendant will encash these

certificates at the time of the marriage

of Kumari Ramakanta Dewan and utilise

the proceeds for her marriage expenses.

Before that the defendant will not be

entitled to encash these certificates

nor will she be able to remove them from

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the safe custody of the bank. There is

also a fixed deposit receipt of the

Palai Central Bank, New Delhi in the

name of defendant for the sum of

Rs.3,139/15/-. The defendant shall be

the owner of this deposit and she will

be free to utilise it as per her own

Will or at the time of necessity. The

family Jewellery is lying in Locker

No.664, Type C with Punjab National

Bank, Tropical Building, New Delhi. The

parties to the suit will not remove the

Jewellery from the Locker and this

Locker will be operated only at the time

of the marriage of Km Ramakanta. After

removing such part of the jewellery as

may be considered proper to be given on

Ramakanta's marriage to Ramakanta, the

locker shall be re-sealed and the

remaining jewellery will be owned by the

plaintiff after the death of the

defendant. There is another locker with

Imperial Bank of India, New Delhi in the

name of the defendant. Shri Shyam

Kishore and Shri Sukhbir Prasad Jain,

Advocates accompanied by the parties

shall prepare an inventory of the

articles in the locker. Those articles

which belong to Thakur ji Maharaj (God)

will be handed over to the defendant and

shall be placed by her in the Temple.

Out of the contents of the locker the

Necklace, the watch and one ring, which

belong to defendant along with her

papers including a fixed deposit

receipt, will be handed over to the

defendant. The shares scrips and the

other articles including a watch

belonging to the father of the plaintiff

shall be handed over to the plaintiff.

There are two watches with the

defendants (one gents and one ladies)

which shall be returned by the defendant

to the plaintiff. In case, the plaintiff

fails to pay the above said maintenance

allowance to the defendant the defendant

shall be entitled to recover that from

the rents from the property in the

possession of the plaintiff over which

rents she shall have a first charge. The

following are the particulars of the

property:

1. 5. Doctors Lane, New Delhi;

2. 56-58, Todar Mal Road, New

Delhi;

3. Some land in Shahdara.

The rent of the above property shall be

realised by the plaintiff. The defendant

is the owner of property No.58, Todar

Mal Road, New Delhi. She shall not

transfer the property in any manner

whatsoever. The right to realise rent

and give the premises on rent shall vest

in Smt. Vinodni Dewan. After the death

of the defendant, Smt. Vinodni Dewan

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shall be the owner of the property. The

above statement of the parties may also

be read as their statement in Civil Suit

Numbers 682 of 1954, 40 of 1954, 442 of

1954 and 683 of 1954, and by virtue of

this statement these Suits may be

dismissed. The Plaintiff shall have the

right to withdraw all rents which have

been deposited in various Courts by the

tenants. Out of this one-tenth proceeds

will be paid over by the plaintiff to

the defendant. Except property No.58,

Todar Mal Road, the plaintiff shall be

the owner of rest of the property.

R.O. & A.C.

sd/- Satyavati Dewan sd/- Sukhbir Prasad

Advct

sd/- R.N. Dewan sd/- Shyam Kishore Advct

27.1.1955

Sd/- SJIC

ORDER: In terms of the statements

of the parties the suit is dismissed.

The parties are left to bear their own

costs. The parties shall remain bound by

the compromise and by their statements.

Order announced.

Sd/- S.S. Kalha

SJIC Delhi

27.1.1955."

In the above joint statement, plaintiff means the first

defendant herein and the defendant means Satyawati Dewan.

Smt. Vinodni Dewan is the wife of the first defendant.)

The 1942 Will - its meaning and effect:

---------------------------------------

We shall first examine the effect of the Will executed

by Ram Nath in the year 1942, the correctness or validity

whereof is not in question before us. On the date he

executed the Will, he had a son and four daughters. Out of

the properties held by him, he gave one house property,

viz., No.5, Doctors Lane, New Delhi to his wife, Satyawati,

for her life. He declared that during her life time, she

shall have the exclusive right to reside therein but that

she shall not be entitled to transfer it in any manner.

After her death, he declared, the property will go to "the

legal heirs of the testator". On the date of death of Ram

Nath, it is agreed by all the parties before us, first

defendant was the only "legal heir of the testator". It is

equally not in dispute before us that on the date of death

of Satyawati, the " legal heirs of the testator" are the

first defendant, the plaintiff and Defendant Nos.6 to 8 by

virtue of the provisions contained in the Hindu Succession

Act, 1956.

The first and crucial question is whether on the

language of the Will and the law governing the Wills, the

vesting in "the legal heirs of the testator" took place on

the date of death of testator (as contended by the

appellant) or on the date of death of Satyawati (as

contended by the appellant) or on the date of death of

Satyawati as contended by the plaintiff-respondent). In

other words, the question is whether it is Section 119 of

the Indian Succession Act that is attracted or the exception

to Section 111 of the said Act. If it is Section 119 that is

attracted, the position would be that the remainder interest

did vest in the first defendant on the date of death of Ram

Nath which means that the daughters will have no right in

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the Doctor's Lane House. On the other hand, if it is the

exception to Section 111 that applies, the vesting takes

place on the date of death of Satyawati, which means son and

four daughters together will be "the legal heirs of the

testator". Sections 119 and 111 read as follows:

"119. Date of vesting of legacy when

payment or possession postponed.-- Where

by the terms of bequest the legatee is

not entitled to immediate possession of

the thing bequeathed, a right to receive

it at the proper time shall, unless a

contrary intention appears by the will,

become vested in the legatee on the

testators death, and shall pass to the

legatee's representatives if he dies

before that time and without having

received the legacy, and in such cases

the legacy is from the testator's death

said to be vested interest.

Explanation.--An intention that a legacy

to any person shall not become vested in

interest in him is not to be inferred

merely from a provision whereby the

payment or possession of the thing

bequeathed is postponed, or whereby a

prior interest therein is bequeathed to

some other person, or whereby the income

arising from the fund bequeathed is

directed to be accumulated until the

time of payment arrives, or from a

provision that, if a particular event

shall happen, the legacy shall go over

to another person.

Illustrations

(i) A bequeathed to B 100 rupees, to be

paid to him at the death of C. On A's

death the legacy become vested in

interest in B, and if he dies before C,

his representatives are entitled to the

legacy.

(ii) A bequeaths to B 100 rupees, to be

paid to him upon his attaining the age

of 18. On A's death the legacy becomes

vested in interest in B.

(iii) A fund is bequeathed to A for

life, and after his death to B. On the

testator's death, the legacy to B

becomes vested in interest in B.

(iv) A fund is bequeathed to A until B

attains the age of 18 and then to B. The

legacy to B is vested in interest from

the testator's death.

(v) A bequeaths the whole of his

property to B upon trust to pay certain

debts out of the income, and then to

make over the fund to C. At A's death

the gift to C becomes vested in interest

in him.

(vi) A fund is bequeathed to A, B and C

in equal shares to be paid to them on

their attaining the age of 18,

respectively, with a proviso that, if

all of them die under the age of 18, the

legacy shall devolve upon D. On the

death of the testator, the shares vested

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in interest in A,B anc C, subject to be

divested in case A,B and C shall all die

under 18, and, upon the death of any of

them (except the last survivor) under

the age of 18, his vested interest

passes so subject, to his

representatives.

111. Survivorship in case of bequest to

described class.-- Where bequest is made

simply to a described class of persons,

the thing bequeathed shall go only to

such as are alive at the testator's

death.

Exception.--If property bequeathed to a

class of persons described as standing

in a particular degree of kindred to a

specified individual, but their

possession of it is deferred until a

time later than the death of the

testator by reason of a prior bequest,

or otherwise, the property shall at that

time go to such of them as are then

alive, and to the representatives of any

of them who have died since the death of

the testator.

Illustrations

-------------

(i) A bequeaths 1,000 rupees to `the

children of B' without saying when it is

`to be distributed among them. B has

died previous to the date of the will,

leaving three children C, D and E. E

died after the date of the will, but

before the death of A. C and D survives

A. The legacy will belong to C and D, to

the exclusion of the representatives of

E.

(ii) A lease for years of a house was

bequeathed to A for his life, and after

his decease to the children of B. At the

death of the testator, B had two

children living, C and D, and he never

had any other child. Afterwards during

the lifetime of A, C dies, leaving E,

his executor. D has survived A, D and E

are jointly entitled to so much of the

leasehold term as remaining unexpired.

(iii) A sum of money was bequeathed

to a for her life, and after her

decease, to the children of B. At the

death of the testator, B had two

children living, C and D, and after that

event, two children, E and F, were born

to B. C and E died in the lifetime of A,

C having made a will, E having made no

will. A has died, leaving D and F

surviving her. The legacy is to be

divided into four equal parts, one of

which is to be paid to the executor of

C, one to D, one to the administrator of

E and one to F.

(iv) A bequeaths one-third of his lands

to b for his life, and after his decease

to the sisters of B. At the death of the

testator, B had two sisters living, C

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and D, and after that event another

sister E was born. C died during the

life of B, D and E have survived B. One-

third of A's lands belong to D, E and

the representatives of C, in equal

shares.

(v) A bequeaths 1,000 rupees to B for

life and after his death equally among

the children of C. Up to the death of B,

C had not had any child. The bequest

after the death of B is void.

(vi) A bequeaths 1,000 rupees to `all

the children born or to be born' of B to

be divided among them at the death of C.

At the death of the testator, B has two

children living D and E. After the death

of the testator, but in the lifetime of

C two other children, F and G, are born

to B. After the death of C another child

is born to B. The legacy belongs to

D.E.F and G, to the exclusion of the

after-born child to B.

(vii) A bequeaths a fund to the

children of B, to be divided among them

when the eldest shall attain majority.

At the testator's death, B had one child

living, named C. He afterwards had two

other children named D and E. E died,

but C and D were living, When C attained

majority. The fund belongs to C, D and

the representatives of E, to the

exclusion of any child who may be born

to B after C's attaining majority."

Let us first analyse Section 119 from the point of view

of the facts of this case and see what does it say.

According to it, unless a contrary intention appears from

the Will, a bequest made to a legates, who is not entitled

to immediate possession of bequest, gets vested in such

legatee on the date of death of the testator. The

Explanation appended to the section elucidates the words

"unless a contrary intention appears by the Will" occurring

in the main limb of the section. The Explanation says inter

alia that merely because a prior interest in the bequest is

given to some other person, it does not mean that a contrary

intention is indicated in the Will. Illustration (iii) is of

crucial relevance. It says that where a fund is bequeathed

to A for life and after A's death to B, the legacy to B

becomes vested in interest in B on the testator's death. If

we read the principle under lying the main limb of Section

119 along with the Explanation and Illustration (iii), it

becomes abundantly clear that the present case squarely

falls within the four corners of this section. It fits in

neatly into Illustration (iii) to Section 119. Here, the

Doctor's Lane house is bequeathed to Satyawati for life and

after her death to the legal heirs of the testator. Once

this is so, the legacy to the legal heirs of the testator

became vested in such legal heir(s) on the date of death of

the testator - and admittedly on that death, first defendant

was the only legal heir of the testator. We may mention that

merely because a prior interest in the bequest is given to

Satyawati, it cannot be said that the Will indicates a

contrary intention within the meaning of the main limb of

Section 119. [See Chilanakuri Pullappa v. Guruka Bayanna

(A.I.R. 1962 A.P. 54) and P. Somasundaram v. K. Rajammal

(A.I.R. 1976 Mad.295) in this behalf.] Now, once the bequest

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to "the legal heirs of the testator" provided by the Will

got vested in the first defendant on the date of the death

of the testator, there is no question of the first defendant

being divested therefrom. On the death of Satyawati, the

first defendant became entitled to possession of the

Doctor's Lane house which had already vested in him.

Sri Bhandare, learned counsel for the respondent-

plaintiff, submitted repeatedly that the above

interpretation would be inconsistent with the intention of

the testator as clearly expressed in the Will. He submitted

that the first and the foremost rule of interpreting the

Will is to ascertain the intention of the testator and to

give effect to it. The learned counsel submitted that

according to the Will, the Doctor's Lane houses was to

devolve upon the legal heirs of the testator only on the

death of Satyawati and not at any earlier point of time. He

emphasised the words "and declares that after her

(devisee's) death, the property will go to the legal heirs

of the testator" occurring in clause (i) of the Will. It is

true that that is what the testator said but then the said

Will has to be understood and construed in the light of the

statutory rules governing the Will, viz., the provisions of

the Indian Succession Act, 1925. Section 119 of this Act,

which applies to the Will in quest by its own force, says,

to repeat, that where a property is bequeathed to A for life

and after his death to B, the legacy to B becomes vested in

interest in B on the death of the testator. As pointed out

earlier, the bequest in the Will squarely falls within the

four corners of Section 119 and in particular of

Illustration (iii) thereto. It may be remembered that

Illustrations to the section are parts of the section and

help to elucidate the principle of the section.

Now, let us examine whether the exception to Section

111 of the Indian Succession Act is attracted herein - and

not Section 119 - as contended by Sri Bhandare. The main

limb of Section 111 says that where bequest is made simply

to a described class of persons, the bequest shall devolve

only upon such members of the class as are alive on the date

of the testator's death. The exception appended to Section

111 says that if property is bequeathed to a class of

persons/described as standing in a particular degree of

kindred/to a specified individual/but their possession of it

is deferred until a time later than the death of the

testator by reason of a prior bequest, or otherwise/the

property shall at that time go to such of them as are alive

and to the representatives of any of them who have died

since the death of the testator. For the exception to apply,

it must first be shown that the bequest is to a class of

persons. Then it must be shown that the said class of

persons is described as standing in a particular degree of

kindred to a specified individual. The third requirement is

that the possession of the bequest is deferred until a time

later than the death of the testator for one or the other

reason. If the above ingredients are satisfied then the

property bequeathed devolves upon such persons of the class

as are alive on the date of death of the interposer (prior

bequest) and upon the representatives of such of those who

may have died after the death of the testator but before the

death of the interposer. Now, let us assume in these appeals

that bequest is to a class of persons. The next question is

whether the said class of persons is "described as standing

in a particular degree of kindred to a specified

individual"? We are of the opinion that the words "a

specified individual" cannot refer to or mean "the

testator". The very Explanation uses both the words

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"testator" and " a specified individual". If the idea behind

the exception was to refer to testator, then it would not

have employed the words "a specified individual". Nothing

was more simpler than using the words "the testator" instead

of the said words actually used. This means that the words "

a specified individual" refer to an individual other than

the testator. This understanding of ours is re-inforced if

we look at the several illustrations appended to the

section. In each of those illustrations, the class of

persons is described as children or (or the relatives of) a

person other than the testator. None of them speaks of a

class of persons related as aforesaid to the testator. Once

this is so, the exception goes out of the picture. In the

case before us, the legal heirs of testator - assuming that

they constitute a class of persons within the meaning of the

exception - are described as standing in a particular degree

of kindred to the testator - and not to "a specified

individual". Indeed, there was a good amount of controversy

before us as to the meaning to the words "particular degree

of kindred". We need not, however, go into that aspect

because once we come to the conclusion that the words "a

specified individual" cannot and do not refer to the

testator, the exception becomes inapplicable.

Sri Bhandare, learned counsel for the respondent-

plaintiff, put forward an alternative argument, viz., that

it is Section 120 of the Indian Succession Act that applies.

According to him, it is a case of a contingent bequest

within the meaning of the said section, which reads as

follows:

"120. Date of vesting when legacy

contingent upon specified uncertain

event.-- (1) A legacy bequeathed in case

a specified uncertain event shall happen

does not vest until that event happens.

(2) A legacy bequeathed in case a

specified uncertain event shall happen

does not vest until the happening of

that event becomes impossible.

(3) In either case, until the condition

has been fulfilled, the interest of the

legatee is called contingent.

Explanation.--Where a fund is bequeathed

to any person upon his attaining a

particular are, and the will also gives

to him absolutely the income to arise

from the fund before he reaches that

age, or directs the income, or so much

of it as may be necessary, to be

supplied for his benefit, the bequest of

the fund is not contingent."

[Illustrations omitted as

unnecessary]

A mere reading of Section 120 would indicate that it is

not attracted in the present case. The death of Satyawati

was not a specified uncertain event. The decision of this

Court in N. Krishnammal v. R. Ekambram & Ors. (1979 (3)

S.C.C. 273) is of no relevance herein. That was a clear case

of contingent bequest. In the present case, the bequest is

not a contingent one. If so, the bequest is not postponed

within the meaning of Section 120.

We are, therefore, of the opinion that by operation of

law, i.e., by virtue of Section 119 of the Indian Succession

Act, the bequest to "the legal heirs of the testator" vested

in the first defendant - he alone being the legal heir of

the testator on that date - on the date of death of Ram Nath

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(testator). The vesting of bequest to "the legal heirs of

the testator" was not postponed till the death of

interposer, Satyawati. The language of clause (i) of the

Will cannot be construed otherwise.

Sri Bhandare then contended that the use of the plural

"heirs" - and not the singular "heir" - in clause (i) is

indicative of the intention of the testator that he was

referring to his legal heirs as may be in existence on the

death of satyawati. In our opinion, this argument is plainly

unacceptable. In the year 1942, Ram Nath could not have

foreseen the enactment of Hindu Succession Act, 1956 or that

in future his daughters would also become his "legal heirs"

by some change in law. The language of clause (i) does, no

doubt, convey the intention of the testator, viz., immediate

bequest (for life) is to Satyawati and the ultimate

(absolute) bequest is to his legal heirs after the death of

Satyawati. But this clause has to be read, understood and

construed in the light of the rule contained in Section 119

of the Indian Succession Act, as explained hereinabove -

with the necessary consequence, which too has been set out

hereinabove.

For the above reasons, we disagree with the finding of

the Division Bench of the High Court on this aspect.

THE SETTLEMENT OF 1955 AND ITS EFFECT:

--------------------------------------

The next question is, what happened in the year 1955

when there was a settlement between Satyawati and the first

defendant and what is its effect? As mentioned hereinbefore,

soon after the death of Ram Nath in the year 1953, disputes

arose between Satyawati and the first defendant. As many as

seven suits were filed by one against the other. The first

defendant had put forward a rival Will, said to have been

executed by Ram Nath in the year 1950, whereunder the

Doctor's Lane house was given to the first defendant. It

appears that pending the said suits, there was a reference

to arbitration and an award was also rendered by the

Arbitrator, one Sri Chanan Ram. Obviously, the award did not

put an end to the disputes between the mother and the son.

Only later and evidently at the intercession of certain

mutual well-wishers, the parties arrived at a settlement

whereunder the said award was declared ineffective and a

different arrangement arrived at. Under this settlement, the

first defendant (described as `plaintiff') was declared to

be the owner of all the properties left by Ram Nath

including Doctor's Lane house - except No.58, Todar Mal

Road, New Delhi. At the same time, Satyawati was given the

right of residence in the first floor of the Doctor's Lane

house along with case maintenance of Rs.125/- per month. It

was stipulated that if she resides in the said portion, the

first defendant shall pay her only a monthly maintenance of

Rs.125/-. But if she did not intend to reside in the said

portion, the first defendant was to pay her Rs.150/- per

month. Thus, on the plain language of the settlement, the

Doctor's Lane house became the property of the first

defendant subject to the right of residence given to

Satyawati in the first floor thereof. Sri Bhandare, learned

counsel for the respondent-plaintiff, contended that

inasmuch as the interest given to Satyawati under the 1942

Will was a life estate and not a widow's estate - with which

proposition we agree - and because the Will prohibited her

from transferring the said property, the said settlement is

incompetent and void since it amounts to a transfer. We are

not prepared to agree. One must look at the situation

obtaining in the year 1955 and not to the situation

obtaining, or findings recorded, in the present proceedings.

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Seven suits were pending between mother and the son. The

validity of 1942 Will was in dispute because the son (first

defendant) was relying on another Will of Ram Nath, said to

have been executed in the year 1950, superseding the 1942

Will. No Court had pronounced till then as to which Will was

the last Will and testament of Ram Nath. In other words, the

right given to Satyawati under the 1942 Will was itself in

dispute in those suits. In such a situation, a compromise, a

settlement was arrived at between the parties, whereunder

Satyawati acknowledged and accepted the first defendant's

title to the Doctor's Lane house in lieu of right of

residence in the first floor and case maintenance of

Rs.125/- per month. The settlement does not say which of the

said two Wills is true and valid. The settlement was de hors

the claims and contentions of both the parties including

their claims and contentions under the respective Wills

espoused by them. (It is only is this suit that it has been

held by the learned Trial Judge that the 1942 Will is the

last Will of Ram Nath inasmuch as Defendant Nos.2 to 5 have

failed to establish the truth and correctness of the 1950

Will put forward by their first defendant in the said

earlier suits and by them in the present suit. The finding

of the learned Single Judge on the issue was not challenged

by Defendant Nos.3 to 5 in the appeal.) It may be remembered

that under the 1942 Will Satyawati was not entitled to any

maintenance amount from the first defendant. The said

monthly maintenance was provided to her, payable by the

first defendant, under and as part of the said settlement.

We are, therefore unable to agree with Sri Bhandare that the

said settlement amounts to a transfer or that it is

incompetent and ineffective for being inconsistent with the

terms of the 1942 Will.

For the same reasons, The contention that a surrender

by a widow must be total and complete is wholly beside the

point. Neither the interest given to Satyawati was a widow's

estate (as rightly found by the Division Bench) nor was it a

case of surrender. It was a compromise, a settlement, of

conflicting claims.

THE RELEVANCE AND EFFECT OF THE HINDU SUCCESSION ACT, 1956:

-----------------------------------------------------------

Now, we come to the third important event, viz., the

enforcement of the Hindu Succession Act and its effect. The

Act came into force in June, 1956. By operation of Section

14 of the said Act, the right of residence given to

Satyawati in the first floor of the Doctor's Lane house

ripened into an absolute title inasmuch as the said right

was given to her in recognition of a pre-existing right to

maintenance inhering in her. Even under the Hindu Law

obtaining prior to the enforcement of Hindu Adoptions and

Maintenance Act, 1956, the son was under a personal

obligation to maintain his mother and he was bound to

maintain her whether or not he inherited property from his

father. [See Para 548 of Mulla's Hindu Law at P.552 (16th

Edn.)]. Under the settlement, Satyawati was given not only

the right of residence in the first floor but also a sum of

Rs.125/- per month in cash towards her maintenance. It was

further provided under the settlement that if Satyawati did

not intend to reside in the aforesaid portion, the first

defendant shall pay her Rs.150/- per month as maintenance

instead of Rs.125/- per month. This clearly indicates that

the right of residence was given to her in lieu of and in

recognition of her pre-existing right to maintenance. Once

this is so, it is sub-section (1) of Section 14 that applies

and not sub-section (2) vide V. Tulasamma v. V. Sesha Reddi

(1977 (3) S.C.C. 99). It has recently been held by a Bench

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of this Court (S.P. Bharucha, J. and one of us, S.B.

Majmudar, J.) in Mangat Mal v. Punni Devi (1995 (6) S.C.C.

88) that a right of residence given for life to a female

Hindu in a property plus a sum of money in lieu of her right

to maintenance ripens into full ownership on the coming into

force of the Act. Accordingly, it must be held that on the

date of coming into force of the Hindu Succession Act, 1956,

Satyawati became the absolute owner of the first floor of

the Doctor's lane house property.

Sri Arun Mohan, learned counsel for the appellant-third

defendant, submitted that inasmuch as the plaintiff has not

invoked or relied upon Section 14 of the Hindu Succession

Act and also because no reference to the said provision is

found in the judgment of the learned Single Judge or the

Division Bench, she should not now be allowed to invoke the

said provision for the first time in these appeals. Learned

counsel submitted that neither in the plaint nor at any time

during the arguments in the Courts below was this contention

urged by the plaintiff. Counsel also submitted that had the

plaintiff raised this contention in the plaint, the

defendant-appellant would have had an opportunity of

establishing that Section 14 has no application for the

reason that she was not "possessed" of the said first floor

on the date of coming into force of the Act. Counsel

submitted that Satyawati was never living in the first

floor; she was either living with the first defendant or

with other relatives. We have given our anxious

consideration to the said submission but are unable to agree

with it. In the plaint, it is repeatedly stated that the

plaintiff is claiming the suit property both through Ram

Nath and Satyawati. It is true that there is no specific

reference to Section 14 of the Hindu Succession Act but we

are of the opinion, having regard to the law applicable to

pleadings (Order 6 Rule 2 of the Civil Procedure Code) and

the decisions of this Court in that behalf - [See Kedar Lal

Seal & Anr. v. Hari Lal Seal (A.I.R. 1952 S.C. 47)] that it

would not be just and proper not to give effect to the said

highly salutary provision on the above ground which, in the

facts and circumstances of the case, is a mere technicality.

Section 14 operates on its own force once the facts

requisite for attracting its application are established. It

must be remembered that the settlement between Satyawati and

the first defendant was arrived at on January 27, 1955

whereas the Hindu Succession Act came into force in June,

1956, i.e., within less than seventeen months. Moreover, we

are concerned with right to possession and not physical

possession. It has been repeatedly held by this Court [See

the several decisions referred to under the heading

"possessed - meaning of" in Mulla's Hindu Law (Sixteenth

Edition at Page 810)] while construing the expression

"possessed" in Section 14(1) that the said expression means

and refers to a right to possession and not necessarily

actual or physical possession. So long as she has a right to

possession, the mere fact that the female Hindu was not in

physical possession matters very little. Therefore, it is

immaterial whether Satyawati was physically occupying the

said first floor or not. So long as she had the right to

possession over the said first floor, Section 14(1) is

attracted. There has never been any suggestion by Defendant

Nos.2 to 5 that Satyawati had given up the said right. On

the contrary, Exh. D-28 (a former statement of Satyawati in

a suit), filed and relied upon by the appellant, shows that

Satyawati herself was holding a General Power of Attorney

from the first defendant (executed in 1960 and in 1964) and

was managing all his properties in India. This is also the

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testimony of the plaintiff in this suit. She has deposed

(Page 47 of Vol. II Paper Book) that till three months

before her death, Satyawati was residing in the said house

along with a maid servant and her son. Nothing worthwhile

has been brought out in her cross-examination to doubt this

statement of hers. We accept her statement. The facts

established herein do clearly attract Section 14 of the

Hindu Succession Act. The ends of justice demand that the

said provision is given effect to. The plea of lack of

opportunity is at best a technical one, in the particulars

facts and circumstances of the case. We are, therefore, not

inclined to accept Sri Arun Mohan's plea that Section 14(1)

should not be allowed to be invoked by the respondent in

these appeals.

We may pause here and append a note of explanation. It

is true that under the 1942 Will, the bequest to Satyawati

was only for her life and the bequest to "the legal heirs of

the testator', i.e., to the first defendant, vested in him

on the death of the testator, as held by us and for the

reasons assigned hereinbefore. But all this is subject to

the statutory provisions contained in Section 14(1) of the

Hindu Succession Act. This statutory provision supersedes

the recitals in the Will. By virtue of Section 14(1) of the

said Act, the limited estate of Satyawati (given to her

under the 1942 Will) would have ripened into absolute estate

if Satyawati had been "possessed" of the entire Doctor's

Lane house on the date of commencement of the Hindu

Succession Act. But she was not. She had given up her

possession and right to possession over the First floor

under the 1955 Settlement. She was "possessed" of only the

first floor of the house. Secondly, and more important,

first defendant is basing his title to the Doctor's Lane

house on the 1955 settlement. As stated hereinabove, both

Satyawati and the first defendant arrived at a particular

settlement notwithstanding their respective claims and

contentions. Satyawati never challenged the said settlement

during her life-time. The settlement cannot, therefore, be

held to be involuntary or inoperative. Satyawati, in fact,

acted for a number of years as the General Power of Attorney

of her son, the first defendant, and managing his properties

in India. Merely because in these proceeding, the 1942 Will

is held to be the last and valid Will of Ram Nath, the

settlement of 1955 cannot be ignored or brushed aside. It is

also nobody's case that the settlement was not bonafide or

that it was not acted upon. For these reasons, it must be,

and is,s held that Satyawati became the absolute owner only

of the first floor of the Doctor's Lane house - and not of

the whole house.

THE PLEA OF LIMITATION:

-----------------------

The sale of the Doctor's Lane house in favour of

Defendant Nos.3,4 and 5 is dated March 4, 1971. The sale

deed was executed by the second defendant acting as the

General Power of Attorney of the first defendant. The sale

deed pertains to the entire house property, viz., No.5,

Doctors Lane, New Delhi. On the date of sale, Satyawati was

alive. She died on July 2, 1972. On the death of Satyawati,

her interest devolved upon her four daughters (plaintiff and

Defendant Nos.6 to 8) and the son (first defendant) under

Section 15 of the Hindu Succession Act. The present suit was

instituted soon after the death of Satyawati. The plaintiff

claimed partition and separate possession of her 1/5th share

in all the properties including the Doctor's Lane house. The

suit was originally filed on the basis of plaintiff being in

joint possession along with other heirs of Ram Nath and

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Satyawati of all the suit properties including Doctor's Lane

house. Later, however, the plaintiff applied for amendment

of plaint adding the relief of possession insofar as the

Doctor's Lane house is concerned. The amendment was granted

on December 6, 1983 with a direction that the said amendment

shall be effective only from the date of the said order.

The plea of limitation raised by the defendant-

appellant cannot be upheld for more than one reason. The

reasons are the following:

(a) Among the issues framed in the suit, Issue No.5

pertains to the plea of limitation put forward by Defendant

Nos.2 to 5. The issue runs thus: "Whether the suit is within

time?" On this issue, the learned Single Judge (Trial Judge)

recorded a finding in favour of the plaintiff. He found the

suit within limitation. The decision on the above issue was

not contested by the parties before the Division Bench. The

Division Bench has expressly recorded that "the decisions on

the above issues (Issues 1, 2, 3, 4, 5, and 6) are not

contested by the parties in this appeal and, therefore, the

findings of the learned Single Judge are hereby affirmed".

Once this is so, it is not open to the third defendant-

appellant in these appeals to seek to re-agitate the said

plea. We cannot allow him to do so. A party who abandons a

particular plea at a particular stage cannot be allowed to

re-agitate in appeal.

(b) The plea of limitation raised in Para (8) of the

defendant's written statement was in the following words:

"8. It is denied that the suit of the plaintiff is within

limitation. The answering defendants and the predecessor-in-

interest, Rajender Nath, have been in any case in adverse

possession of the property in suit since 1954". It is on the

basis of the said plea that Issue No.5 aforementioned was

framed. Now, let us examine what does the said plea signify?

The plea has to be understood in the context of other pleas

raised in their written statements. The defendant's case was

that the 1942 Will is not true and that after the death of

Ram Nath, first defendant came into possession of all the

properties including the Doctor's Lane house and was in

adverse possession thereof since 1954. The plea of

limitation was not based upon any other ground or fact. Once

it is held that (a) the 1942 Will is true, and (b) the

remainder bequest vested in the first defendant on the death

of Ram Nath (as held by us hereinabove accepting the plea of

the appellant), the bottom gets knocked out of this plea. It

is also necessary to point out that there is no plea in the

written statement that the adverse possession of the first

defendant commenced under and by virtue of the 1955

settlement. There is also no plea that the adverse

possession of the defendant commenced at any later point of

time. It is well settled that the plea of adverse possession

is not a pure question of law but a mixed question of fact

and law. It is also well established that the party pleading

adverse possession must state with sufficient clarity as to

when his adverse possession commenced and the nature of its

possession. In this case, the defendant's plea is that the

adverse possession of the predecessor-in-interest, i.e., the

first defendant, commenced in 1954. Once that plea falls to

ground, as held hereinabove, there is no alternate plea. To

repeat, the defendants have not suggested that their adverse

possession commenced at any later point of time.

Sri Arun Mohan, learned counsel for the appellant,

sought to contend that the adverse possession of Defendant

Nos.3 to 5 commenced under the 1955 settlement and in any

event with effect from the date of sale in their favour. In

the first instance, this was not the plea in the written

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statement and, therefore, we cannot allow the learned

counsel to raise such a plea for the first time in these

appeals, more particularly in view of the fact that

Defendant Nos.3 to 5 did not contest the finding of the

learned Single Judge on Issue No.5 as aforementioned. Event

otherwise, we are of the opinion that there is no substance

in this contention. So far as the 1955 settlement is

concerned, there can be no question of adverse possession by

the first defendant commencing thereunder or from its date.

Under the said settlement, the first defendant was declared

to be the owner of the Doctor's Lane house and Satyawati was

given the right of residence in the first floor thereof.

Once the first defendant is declared to be the owner of the

said property, there is no question of adverse possession by

him. Yet another circumstance: Satyawati became the absolute

owner of the first floor by virtue of the operation of

Section 14 of the Hindu Succession Act, as held by us

hereinabove. There is no plea by the defendants that at any

point of time after the commencement of the Hindu Succession

Act, the first defendant dispossessed Satyawati and was in

possession of the first floor also.

Now, coming to the submission of Sri Arun Mohan that

the adverse possession commenced on the date of sale in

their favour, viz., March 6, 1971, this again is not the

plea of the defendants. In any event, the sale deed does not

expressly recite that possession of the house was delivered

by the first defendant to the purchasers at the time of

execution of sale deed.* Further, plaintiff has stated in

her deposition (See Page 47 of the Paper Book - Vol.II) that

till three months before her death, Satyawati was living in

the house along with a maid servant and her son. Nothing

worthwhile has been brought out in her cross-examination to

doubt her testimony on this aspect. We accept her statement.

If so, the suit will be within twelve years, even assuming

that the suit is deemed to have been filed on December 6,

1983, i.e., the date on which plaint was amended

incorporating the relief of possession.

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*Clause (3) of the sale deed, which is the clause touching

upon the possession of the property sold, reads: "The Vendor

hereby convenants with the Vendees that the said premises

shall be quietly entered into and upon and hold and enjoyed

and the rents and profits received therefrom by the Vendees

without any interruption or disturbance by the Vendor or any

person claiming though or under him and, without any lawful

disturbance or interruption by and other persons

whomsoever." Clause (7) [which is wrongly numbered as clause

(4)] entitles the vendees to recover the rents due from the

tenants. At an earlier stage, the sale deed recites that "a

portion of the property" had been leased out to Defendant

Nos.4 and 5 on a rent of Rs.300/-p.m. But for these

recitals, there is no recital relevant to delivery of

possession.

[Satyawati died on July 2, 1972.] In this behalf, we may

mention that the learned Trial Judge had framed additional

issues (See Page 46 of Vol.I Paper Book) with respect to the

validity and legality of this sale deed.

There is yet another way of looking at this issue.

We have found hereinabove that the first defendant

became full owner of Doctor's Lane house on the death of Ram

Nath and that pursuant to the 1955 settlement read with

Section 14 of the Hindu Succession Act. Satyawati became

full owner of the first floor of the house which means that

both of them remained as independent owners of ground and

first floors of the house respectively. Thereafter, when the

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entire house was sold to Defendant Nos.3 to 5 on March 4,

1971, their possession assuming for the sake of argument

that they came into possession of the house on the date of

sale - can be treated to be adverse to Satyawati. however,

the plaintiff who is found to be co-owner of the first floor

along with the first defendant (who passed his interest in

favour of Defendant Nos.3 to 5) filed the present suit

within twelve years of the date of the sale deed. She had

already joined Defendant Nos.3 to 5 as parties to the suit

and had brought in challenge the right of these defendants

to occupy the house by virtue of the sale deed in their

favour. The suit was filed for the relief of partition of

the co-ownership property on the basis of joint possession.

So far as the first floor is concerned, it is covered by the

main relief in the suit which was prayed for within twelve

years from the date of the sale deed. Consequently, the suit

cannot be treated as time barred for the said relief of

partition which is being confirmed by us.

In this connection, we may emphasise that a person

pleading adverse possession has no equities in his favour.

Since he is trying to defeat the rights of the true owner,

it is for him to clearly plead and establish all the facts

necessary to establish his adverse possession. For all the

above reasons, the plea of limitation put forward by the

appellant, or by Defendant Nos.2 to 5 as the case may, be is

rejected.

So far as the plea of resumption of the plot (Doctor's

Lane house) by the President of India and its re-grant to

Defendant Nos.3 to 5 is concerned, it is of little

consequence. The re-grant, if any, was in recognition and in

continuation of earlier grant. We have not been shown the

documents relevant in this behalf nor any serious argument

addressed on this score.

The result of the above discussion is that the sale

deed executed by the second defendant as the General Power

of Attorney of the first defendant in favour of Defendant

Nos.3 to 5 must be held to be valid and effective insofar as

the ground floor of the house property comprised in No.5,

Doctors Lane, New Delhi is concerned. (This is so because

the first defendant or his legal representatives have not

chosen to question or impugn the said sale.) So far as the

first floor of the said Doctor's Lane house is concerned, it

became the absolute property of Satyawati on the coming into

force of the Hindu Succession Act, 1956, i.e., by operation

of Section 14(1) of the said Act. On her death, the said

first floor devolved upon her son (first defendant) and four

daughters (plaintiff and Defendant Nos.6 to 8) in equal

shares under Section 15 of the Hindu Succession Act.

Defendant Nos.3 to 5 will be entitled only to the 1/5th

share of the first defendant in the first floor. The

remaining 4/5th share in the first floor is allotted to

plaintiff and Defendant Nos.6 to 8, each 1/5th. The decree

passed by the Division Bench of the Delhi High Court is

modified accordingly and is restricted to the first floor of

the house property comprised in No.5, Doctors Lane, New

Delhi. All other directions given by the Division Bench in

respect of the Doctor's Lane house are affirmed but

restricted to the first floor thereof.

The appeals are allowed in part accordingly. No order

as to costs.