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PETITIONER:

NATHOO LAL

Vs.

RESPONDENT:

DURGA PRASAD

DATE OF JUDGMENT:

09/04/1954

BENCH:

HASAN, GHULAM

BENCH:

HASAN, GHULAM

MAHAJAN, MEHR CHAND

MAHAJAN, MEHAR CHAND (CJ)

BOSE, VIVIAN

CITATION:

1954 AIR 355 1955 SCR 51

CITATOR INFO :

RF 1957 SC 540 (46)

ACT:

Hindu Law-Female- Alienation in her favour- Whether any

presumption of law that she does not get absolute or

alienable interest in the, property-Whether the case of a

male and that of a female different.

HEADNOTE:

It may be taken as well settled that there is no warrant

for the proposition of law that when a grant of immoveable

property is made to a Hindu female she does not get an

absolute or alienable interest in such property unless such

power is expressly conferred upon her.

The law is that there is no presumption one way or the other

and there is no difference between the case of a male and

the case of a female and the fact that the donee is a woman

does not make the gift any the less absolute where the words

would be sufficient to convey an absolute estate to a male.

Mohamed Shumsool v. Shewakram (2 I.A. 7), Nagammal v.

Subbalakshmi 1(1947) I.M.L.J. 641 and Ram Gopal v. Nand Lal

(A.I.R. 1961 S.C. 139) referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 59 of 1953.

Appeal from the Judgment and Order dated the 5th April,

1950, of the High Court of Rajasthan at Jaipur in Case No.

24 of Samvat 2005 (Review modifying the Decree dated the 3rd

March, 1949, of the High Court of the former Jaipur State in

Civil Second Appeal No. 187 of Samvat 2004 against the

Decree

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dated the 15th April, 1948, of the Court of the District

Judge, Jaipur City, in Civil Appeal No. 40 of Samvat 2004

arising out of the Decree dated the 23rd August, 1947, of

the Civil Judge, Jaipur City, in Suit No. 66 of Samvat

2002).

Dr. Bakshi Tek Chand, (Rajinder Narain, with him) for the

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appellant.

D.M. Bhandari, (K. N. Aggarwala and R. N. Sachthey, with

him) for the respondent.

1954. April 9. The Judgment of the Court was delivered by

MEHR CHAND MAHAJAN C. J.-This is an appeal from the judgment

and decree of the High Court of Judicature of Rajasthan,

dated the 5th April, 1950, modifying the decree of the High

Court of the former Jaipur State, dated the 3rd March, 1949,

on an application for review in a second appeal concerning a

suit for possession of property.

The property in dispute originally belonged to one

Ramchandra who died sonless in the year 1903. He was

survived by his mother, Sheokori, his widow, Mst. Badni,

and his two daughters,. Bhuri and Laxmi. It is alleged

that he made an oral will under which he bequeathed the

property in dispute to his daughter, Laxmi. On the 6th

September, 1906, Mst. Sheokori and Mst. Badni, purporting

to act in accordance with the directions of the oral will,

executed and registered a deed of gift of the property in

dispute in favour of Mst. Laxmi. The gift deed contains

the following recitals:-

" These houses are made a gift to you according to the

will of your father, Ramchandra......... In this way, these

houses belonging to us were purchased by your father,

Ramchandra, and he in his last days having made a gift of

these houses to you, made a will to us that he had made a

gift of that house to his daughter, Laxmi, and directed us

to get the gift deed registered in her name. He further

said that if we or our relations., kinsmen, creditors do

raise any dispute with her he would I damangir hoonga catch

hold of him by his

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garments. According to his aforesaid will, we have got this

gift deed executed in your favour, while in best of our

senses and in discharge of our sacred duty enjoined by

Dharma...... No other person except you has got any claim

over the house. You deal with your house in any way you

like. If anybody takes back the land gifted by himself or

his ancestors, he will live in hell as along as the sun and

moon shines."

The scribe, it seems, did not in appropriate language

express the directions of the two widows and his ideas of

the legal situation were somewhat confused but there can be

no manner of doubt that the two executants were not

conferring themselves any title which they had in the

property on Laxmi but were merely giving effect to the oral

will as executors and were putting the legatee in possession

of the bequeathed property in this manner. That the widows

had no title themselves is evident from the fact that Mst.

Sheokori also joined in executing the gift deed. Admittedly

Ramchandra's estate could not devolve on her.

Bhuri, the second daughter, died in the year 1907, while

Mst. Badni, the widow., died in the year 1927. Mst. Laxmi

remained in possession of the property till her death in the

year 1928. After her death Balabux, her husband, on the 5th

of July, 1930, claiming as heir to her mortgaged the house

in dispute to the defendant appellant Nathoo Lal and later

on the 5th of October, 1933, he sold it to him and put him

into possession of it and since then he is in possession.

On the 4th October, 1945, that is one day before the expiry

of the period of 12 years from the date of the defendant's

entry into possession of the house, the plaintiff, son of

Mst. Bhuri, sister of Mst. Laxmi, claiming as an heir to

her estate, filed this suit in forma pauperis for possession

of the house. He alleged that he was in possession of the

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house till the 24th of August, 1933, through his tenant,

that after it was vacated by the tenant he locked it and

went away to his native village Harmara ; and that on the

27th of September, 1944, he came to know that the house had

been taken possession of by the appellant during his

absence. It

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was contended by him that Balabux had no right either to

mortgage or sell the house and that Laxmi was not the

absolute owner of the property but had only a limited estate

in it, and on her death he was entitled to possession of it.

On the 28th of August, 1947, the suit was dismissed by the

Civil Judge, who held that Mst. Laxmi became the absolute

owner of the property, and the plaintiff therefore had no

title to claim possession of it after her death, Balabux

being her stridhan heir. The learned Judge however held

that the suit was within limitation. On appeal, this

decision was affirmed by the District Judge. He expressed

the opinion that the widow in executing the deed of gift was

only acting as an execution of the oral will made by

Ramchandra at his deathbed and that Laxmi got under this

will an absolute estate in the suit property. The plea of

limitation raised by the defendant was negatived on the

finding that the plaintiff was in possession of it within

twelve years of the suit.

Plaintiff preferred a second appeal to the High Court of

Jaipur and this time with success. The High Court held that

after the death of Laxmi the plaintiff continued in

possession of the house till he was dispossessed by the

defendant on the 5th of October, 1933, and that he was in

possession even during her lifetime. On the main question

in the case the High Court held that though the house was

bequeathed to Laxmi by Ram chandra under an oral will, there

was no proof that it conferred upon her an absolute interest

in the property and that in the absence of any evidence

indicating that the donor intended to convey an absolute

interest to her, the gift being in favour of a female could

only confer upon her a limited life estate and on her death

revert to the donor's heirs and the plaintiff being such an

heir was entitled to succeed. In the result the appeal was

allowed and the plaintiff's suit was decreed with costs

throughout.

The defendant applied for a review of this judgment.

Meanwhile the Jaipur High Court had become defunct and the

review was heard by the Rajasthan High Court

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as successor to the Jaipur High Court under the High Courts

Ordinance and was partially allowed on the 5th of April,

1950, and the decree was accordingly amended and it was

provided therein that the plaintiff shall not be entitled to

possession of the house except on payment of Rs. 4,000 to

the defendant as costs of improvements and repairs. It is

against this judgment and decree passed after the coming

into force of the Constitution of India that the present

appeal has been preferred to this Court by leave of the

Rajasthan High Court under article 133(1)(c) of the

Constitution.

The learned counsel for the respondent raised a preliminary

objection as to the maintainability of the appeal. He

contended that according to the Code of Civil Procedure of

the Jaipur State the decision of the Jaipur High Court had

become final as no appeal lay from it and hence this appeal

was incompetent. It was argued that the proceedings in the

suit decided in 1945 had concluded by the decision of the

High Court given in 1949, and the review judgment which

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modified the decree in regard to improvements, could not

entitle the appellant to reopen the decision of the High

Court of Jaipur given in 1949.

In our opinion, this objection is not well founded. The

only operative decree in the suit which finally and

conclusively determines the rights of the parties is the

decree passed on the 5th of April, 1950, by the Rajasthan

High Court and that having been passed after the coming into

force of the Constitution of India, the provisions of

article 133 are attracted to it and it is appealable to this

Court provided the requirements of that article are

fulfilled. The Code of Civil Procedure of the Jaipur State

could not determine the jurisdiction of this Court and has

no relevancy to the maintainability of the appeal. The

requirements of article 133 having been fulfilled, this

appeal is clearly competent.

The learned counsel then contended that the High Court was

in error in granting the certificate in this case. We are

unable to agree. An inquiry was made into the valuation of

the property and it was reported that its value was Rs.

20,000 or that the decision affected

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property of the value of above Rs. 20,000. A substantial

question of law was involved in the case, that is, whether a

testamentary disposition by a Hindu in favour of a female'

heir conferred on her only a limited estate in the absence

of evidence that he intended to confer on her an absolute

interest in the property. In these circumstances the High

Court was fully justified in granting the certificate. We

ourselves would have been prepared to admit this appeal

under our extraordinary powers conferred by article 136(1)

of the Constitution, if such a certificate had not been

given in the case. For the reasons given above we see no

force in either of these two preliminary objections which we

overrule.

Dr. Bakshi Tek Chand for the appellant contended that the

Courts below were in error in holding that the plaintiff's

suit was within limitation. He urged that in order to bring

the suit within limitation the plaintiff in paragraph 5 of

the plaint alleged that after the death of Laxmi he kept

tenants in the house, realised the rent and enjoyed it

and/that the last tenant vacated on the 24th August, 1933,

and thereafter he went to his native place after locking the

house, but that this allegation had not been made good by

him, and as there was no evidence that he looked the house,

it should be held that plaintiff's possession discontinued

with effect from the 24th August, 1933, and hence his suit

brought more than twelve years-from that date was not within

time.

It has been found by the Courts below that the plaintiff was

in possession of this house even during the lifetime of

Laxmi and continued in possession thereafter. Even if the

tenant vacated the house on the 24th August, 1933, and the

plaintiff did not lock it, his possession would be presumed

to continue till he was dispossessed by some one. The law

presumes in favour of continuity of possession. The three

Courts below have unanimously held that on the evidence it

was established that after the death of Laxmi plaintiff

continued in possession of the house and the suit was within

limitation. There are no valid grounds for reviewing this

finding in the fourth Court and the contention is therefore

negatived.

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Dr. Bakshi Tek Chand next contended that Laxmi acquired an

absolute title in the suit property under the will of her

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father and that the High Court was in error in@holding that

unless there were express words indicating that the donor

who had absolute interest in the gifted property intended to

convey an absolute interest to her, the gift in favour of an

heir who would ordinarily inherit a limited interest could

not be construed as conferring an absolute interest. The

learned counsel for the respondent on the other hand raised

two contentions. He urged in the first instance that it

seems that the intention of Ramchandra was to make a gift of

the suit property in favour of Laxmi but he was unable to

perfect the gift by executing a registered deed, being on

his deathbed and in that situation the property devolved on

his widow by inheritance and it only came to Laxmi under the

widow's gift and under it she could not get a larger

interest than what the widow herself possessed, namely, a

limited life estate, which terminated on her death. In the

alternative, it was said that there was no evidence as to

the terms of the oral will and that 'being so, the gift

being in favour of a female heir, the presumption in the

absence of evidence to the contrary was that the donee got

only a limited life interest in the bequeathed property.

In our judgment, there is force in the contention of Dr. Tek

Chand and none of the contentions raised by the respondent's

'counsel have any validity. That Ramchandra bequeathed the

suit property and did not gift it to his daughter Laxmi is a

fact which cannot be questioned at this stage. It was

admitted by the plaintiff himself in the witness box. This

is what he said :-

" Ramchandra had made a will in favour of Mst. Laxmi and in

that connection my maternal grandmother and maternal great

grandmother got the gift deed registered. This very gift

deed was got executed by my maternal grandmother and

maternal great grandmother and had got it registered.

Through this gift deed Mot. Laxmi held possession over it

till she was alive. She had kept deponent as her son and so

8

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she got the rent notes executed in my name."' What is

admitted by a party to be true must be presumed to be true

unless the contrary is shown. There is no evidence to the

contrary in the case. The gift deed fully supports the

testimony of the plaintiff on this point. It definitely

states that according to the will, the gift deed was

executed in favour of Laxmi and it further recites that

Laxmi was entitled to deal with the house in any manner she

liked. Those who were directed to execute the oral will

made by Ramchandra must be presumed to have carried out his

directions in accordance with his wishes. It seems clear

that the intention of the testator was to benefit his

daughter, Laxmi, and to confer upon her the same title as he

himself possessed. She was the sole object of his bounty

and on the attendant circumstances of this case it is plain

that he intended to confer on her whatever title he himself

had. Laxmi therefore became the absolute owner of the

property under the terms of the oral will of her father and

the plaintiff is no heir to the property which under the law

devolved on Laxmi's husband who had full right to alienate

it.

We are further of the opinion that the High Court was in

error in thinking that it is a settled principle of law that

unless there are express terms in the deed of gift to

indicate that the donor who had absolute interest intended

to convey absolute ownership, a gift in favour of an heir

who inherits only a limited interest cannot be construed as

conferring an absolute interest. It is true that this was

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the principle once deduced from the Privy Council decision

in Mahomed Shumool V. Shewukram(1) wherein it was held that

a bequest to a daughter-in-law passed a limited estate. The

proposition laid down in Mahomed Shumsool's case was

construed by the High Courts in India to mean that a gift of

immovable property to a woman could not be deemed to confer

upon her an absolute estate of inheritance which she could

alienate at her pleasure unless the deed or will gave her in

express terms a heritable estate or power of alienation.

Later decisions of the Judicial Committee made it clear that

if words were used

(1) 2 I.A. 7.

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conferring absolute ownership upon the wife, the wife

enjoyed the rights of ownership without their being con-

ferred by express and additional terms. Shumsool's case(1)

has been examined in recent years in some High Courts and it

has been observed that according to the law as understood at

present there is no presumption one way or the other and

there is no difference between the case of a male and the

case of a female, and the fact that the donee is a woman

does not make the gift any the less absolute where the words

would be sufficient to convey an absolute estate to a male

(see Nagammal v. Subbalakshmi Ammal(2). The matter has now

been set at rest by the decision of this Court in Ram Gopal

v. Nand Lal(3). In this case it was observed as follows:--

" It may be taken to be quite settled that there is no

warrant for the proposition of law that when a grant of an

immovable property is made to a Hindu female, she does not

get an absolute or alienable interest in such property,

unless such power is expressly conferred upon her. The

reasoning adopted by Mitter J. of the Calcutta High Court in

Mst. Kollani Kuar v. Luchmi Kuar(4), which was approved of

and accepted by the Judicial Committee in a number of

decisions, seems to me to be unassailable. It was held by

the Privy Council as early as in the case of Tagore V.

Tagire (5) that if an estate were given to a man without

express words of inheritance, it would, in the absence of a

conflicting context, carry, by Hindu Law, an estate of

inheritance. This is the general principle of law which is

recognized and embodied in section 8 of the Transfer of

Property Act and unless it is shown that under Hindu Law a

gift to a female means a limited gift or carries with it the

restrictions or disabilities similar to those that exist in

a "widow's estate,' there is no justification for departing

from this principle. There is certainly no such provision

in Hindu Law and no text could be supplied in support of the

same.

" The position, therefore, is that to convey an absolute

estate to a Hindu female, no express power

(1) 21 A. 7. (4) 24 W.R. 395.

(2) (1947) I M.L.J. 64. (5) 9 Beng. L.R. 377, P.C.

(3) A.I.R. 1951 S.C. 139.

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of alienation need be given; it is enough if words are used

of such amplitude as would convey full rights of ownership."

The learned Judges of the High Court were therefore clearly

wrong in law in holding that the will having been made by

the father in favour of his daughter, it should be presumed

that he intended to give her a limited life estate.

For the reasons given above we allow the appeal, set aside

the decree of the High Court decreeing the plaintiff's suit

and restore the decree of the trial Court dismissing the

plaintiff's suit. In the circumstances of this case we will

make no order as to costs.

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Appeal allowed.