Full Judgment Text
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CASE NO.:
Appeal (civil) 916 of 1984
PETITIONER:
THE BRAHMA VART SANATAN DHARM MAHAMANDAL
Vs.
RESPONDENT:
KANHYALAL BAGLA & OTHERS
DATE OF JUDGMENT: 25/09/2001
BENCH:
M.B. Shah & R.P. Sethi
JUDGMENT:
Shah, J.
By judgment and decree dated 18th November, 1983 passed in
First Appeal No.276 of 1967, the High Court of Allahabad confirmed
the judgment and decree dated 3.7.1967 passed by the IInd Additional
Civil Judge, Kanpur in Original Suit No.66 of 1960.
After dismissing the appeal, the High Court vide its order dated
18th November, 1983 granted certificate of leave to appeal to this
Court.
The dispute in this appeal is with regard to properties owned by
one Durga Prasad Bagla who was owner of considerable property in
the City of Kanpur and carried business in the names of M/s Durga
Prasad Bagla, Kanpur and M/s Harmukh Rai Munna Lal, Delhi.
Durga Prasad had third wife Mst. Durgi and that they were having no
child. On 01.11.1917, he executed a will in favour of Mst. Durgi. He
died on 09.9.1918 and thereafter on 21st December 1918, Mst. Durgi
adopted deceased Kanhaiya Lal Bagla (plaintiff no.1) and executed an
adoption deed also. It appears that there were differences after
adoption and deceased Kanhaiya Lal Bagla, minor through guardian,
natural father filed Original Suit No.232 of 1924 against Mst. Durgi
and another in the Court of Civil Judge, Kanpur for declaration that
he was the adopted son and also for possession over the disputed
properties. The suit was decreed by the trial court. Against that Mst.
Durgi preferred first appeal No.502 of 1925 before the High Court of
Allahabad. That appeal was allowed and the Court held as under: -
We accordingly allow this appeal and setting
aside the decree of the Court below, grant the plaintiff a
declaration that he is the validly adopted son of Durga
Prasad but that the estate created under the will, dated the
Ist of November, 1917, in favour of Mst. Durgi holds
good and the plaintiff will have no right to obtain
possession of the estate of the deceased during her
lifetime.
Thereafter, on 1.11.1956, Durgi executed a Will (Ex.A.13) in
favour of defendant no.1 Brahma Vart Sanatan Dharm Mahamandal,
Kanpur in respect of properties Nos.1 and 2 of Schedule C to the
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plaint. On 31.10.1958 she executed a settlement deed (Ex.A.14) in
favour of defendant no.1. On 8.11.1958 she also executed a gift deed
Ex.Q.1 in favour of defendant no.3 Murari Lal Dwivedi whom she
treated as Dharm Putra. It is stated that Mst. Durgi died on night
between 11/12th February, 1960.
It is alleged that plaintiff no.1 Kanhaiya Lal Bagla sold seven
annas share in the disputed property to plaintiff no.2 Man Mohan
Shukla vide sale deed Ex.27. Thereafter, on 20.4.1960 plaintiffs
(Kanhaiya Lal and Man Mohan) filed the present suit for possession
of the properties and for a declaration that the will, gift and settlement
deeds executed by Mst. Durgi are null and void and that the plaintiffs
are owners of the properties of Schedule C of the plaint and for
recovery of mesne profits and possession of the properties mentioned
in Schedule A & B of the plaint. The suit was resisted by the
defendants and it was contended that adoption deed was fraudulently
obtained by the natural father of Kanhaiya Lal Bagla and collaterals of
Durga Prasad Bagla. It was also stated that Mst. Durgi became
absolute owner of the property in terms of the Will executed by Durga
Prasad and the adoption in any case would not divest her of the said
property. It was also contended that considering the finding given by
the High Court in previous proceedings, there was no question of suit
or issue being barred by res judicata. In the alternative, it was stated
that if it is held that she was limited owner as alleged, she became
absolute owner under Section 14(1) of the Hindu Succession Act,
1956.
The Trial Court upheld the contention raised by the plaintiffs
and held that there will be bar of res judicata with regard to validity of
adoption in view of the earlier litigation; Mst. Durgi had only life
estate under the Will and it was not enlarged under Section 14(1) of
the Hindu Succession Act into an absolute estate. The court
disbelieved the plaintiffs version that the Will and the settlement
deed were not executed by Mst. Durgi voluntarily or were obtained by
fraud, misrepresentation or undue influence. It was also held that gift
deed in favour of defendant no.3 Murali Lal Dwivedi was obtained
under undue influence. In appeal, the High Court considered the facts
of the previous litigation between the parties and held that in a
previous suit between the parties the issue wasas to whether she
had an absolute estate under the will; that she continued to be the
owner of the property in the suit or the plaintiffs became the owner
after adoption and that issue was decided against her. The Court,
therefore, held that decision in earlier First Appeal No.502/25
operates as res-judicata and it was not open to the Court to adjudge
the same again. The Court further held that Mst. Durgi would not get
benefit of Section 14(1) of the Hindu Succession Act.
In this appeal, three questions are required to be determined:
(a) Whether under the Will, Mst. Durgi got absolute
ownership [iwjh ekfyd] of the property bequeathed or
whether she got limited estate?
(b) What is the effect of the decision rendered between
parties by the Allahabad High Court in First Appeal
No. 502 of 1925? and,
(c) What is barred by res judicata?
For deciding the first question, that is, whether under the Will
Mst. Durgi got absolute ownership of the property or only a limited
estate, we would refer to the relevant parts of the Will made by the
deceased Durga Prasad Bagla, which are as under: -
I bequeath absolutely all my estate to my wife
Mst. Durgi D/o late Lala Harnarayan Das by caste Vaish
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Agrawal previously r/o Bhivani, District Hissar and at
present residing in city of Kanpur and provide as under: -
.
ThirdlyAll my remaining estate after defraying
the funeral expenses, will vest absolutely in my wife,
Mst. Durgi, as aforesaid and she will also have the power
to continue or to discontinue my business shops and
commission agency in consultation with and with the
approval of my family in which I have been adopted and
she will have the right to close the business, shop and
commission agency in the same manner as I am entitled.
FourthlyShe will have the right in consultation
with the member of the family in which I have been
adopted, to spend the whole money and no one will have
any right to question the same and further she will have
the right to sell and bequeath by will etc.the whole
property in consultation with the family members in
which, I have been adopted and further, I confer on her
the right to adopt a son of any person, she likes, in
consultation of biradari in which I have been adopted
and after the death of the lady afore mentioned, the
adopted son may become the owner (malik ho sakta hai)
but during the life time of the lady, the adopted son will
have no rights.
Aforesaid Will makes it abundantly clear that by unambiguous
term absolute ownership of the properties was bequeathed to Mst.
Durgi by her husband Durga Prasad. Repeatedly in the Will, it has
been made clear that the intention of the executant of the Will was to
bequeath absolute right of ownership of his properties to his wife.
However, learned counsel for the respondents submitted that in
paragraph (4) of the Will, it has been provided that after the death of
the testator, it would be open to his widow to adopt a son and in such
eventuality, adopted son may become the owner after the death of the
lady. In our view, these words in no way restrict or curtail the
absolute ownership rights of Mst. Durgi. They only provide that after
her death, in case of adoption of a son by her, the adopted son may get
the said property. But, rights of Mst. Durgi to deal with the property
as an absolute owner and to transfer or bequeath the same are not
affected or restricted. This has been made clear stating that she will
have the right to spend the whole money and no one will have the
right to question the same and further she will have the right to sell
and bequeath by way of Will etc. the whole property. Result is, if any
property remains after the death of Bai Durgi which she has not
transferred or bequeathed, her adopted son would get right over the
same.
Further, in interpreting the Wills, it is settled law to get at the
intention of the testator by reading the Will as a whole; if possible
such construction as would give to every expression some effect
rather than that which would render any of the expression inoperative
is to be accepted. Another rule which may be useful in context of the
Will is that the words occurring more than once in a Will are to be
presumed to be used always in the same sense unless contrary
intention appears from the Will. The Court may also consider the
circumstances under which the testator makes his Will such as the
state of his property, or his family and the like. [Re.: Pearey Lal v.
Rameshwar Das [(1963) Supp 2 SCR 834].
Further, in the matter of construction of a Will, authorities or
precedents would be of no help as each Will is to be construed in its
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own terms and in the setting in which the clauses occur. In the
present case, the circumstances under which the Will was executed by
the testator could be gathered from the Will itself. The testator
himself was adopted son. He married thrice and was suffering from
some ailment and fever. Third wife was minor and young having no
child. To protect her interest from other members of the family, he
bequeathed his entire property in her favour. He repeatedly
mentioned and made it crystal clear that he was bequeathing absolute
ownership of his property to his wife. Only suggestion which was
made to his wife was to consult his other family members before
disposing of the property. In the Will, the expression used is [iwjh
ekfyd or puree malik] absolute owner and the expression Malik has
a well-known connotation and has been held as apt to describe a
owner possessed of full proprietary rights, including a full right of
alienation, unless there is something in the context or in surrounding
circumstances to indicate that such full proprietary rights were not
intended to be conferred. [Re. Pearey Lal (supra)]. Hence,
considering the intention of the testator and the specific words used in
the will, it would be difficult to hold that the Will conferred limited
estate on Mst. Durgi.
Learned counsel for the respondents, however, relied upon the
judgment rendered by the Allahabad High Court between the same
parties in the earlier proceedings. {Reported as Durgi v. Kanhaiya
Lal AIR 1927 Allahabad 387]. It is required to be understood that
earlier proceedings were initiated by plaintiff Kanhaiya Lal within
few years of his adoption through his guardian, natural father. That
suit was filed for a declaration that he was validly adopted son and
was entitled to possession of the property bequeathed in favour of
Mst. Durgi. It was decreed by the trial Court and hence, Mst. Durgi
preferred first appeal before the High Court. The High Court
confirmed the judgment rendered by the trial court to the extent that
Kanhaiya Lal was validly adopted son of Mst. Durgi and set aside the
judgment of the trial court for handing over possession of the suit
premises. The Court held (at page 389) as under: -
The document is called a will by the testator
himself. We have no doubt in our mind that it was not
merely an ordinary Hindu widows estate that was
intended to be conferred on Mt. Durgi. On the other hand,
the testator expressly stated that she should be absolute
owner of the entire estate left by him and that she should
have power to spend the whole of the money, that is to
say, the capital, with the consent of his family and also
she should have power to make a sale or gift with the
consent of his family. Obviously these are not powers
which can be ordinarily exercised by a Hindu widow, who
has no power to alienate the estate without legal
necessity.
Thereafter the Court negatived the contention that the testator
had no power to execute the Will or that it is not binding to
subsequently adopted son and, therefore, the Court set aside the
finding given by the trial court that the disposition made by Durga
Prasad was null and void.
The Court also held that:
In our opinion the testator had intended to confer
on her an absolute estate, with this condition: that in case
she exercised the power to adopt a boy her interest would
be cut down to a life-interest with remainder over to the
adopted son. This undoubtedly was the intention of the
testator. Under this will therefore a life-estate at least
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was intended to be created in favour of the widow.
Thereafter the Court partly allowed the appeal and set aside the
decree of the trial court, granted the plaintiff a declaration that he was
a validly adopted son of Durga Prasad, but that the life estate created
under the Will dated 1st November 1917 in favour of Mst. Durgi holds
good and the plaintiff will have no right to obtain possession of the
estate of the deceased during her life time.
Learned counsel for the respondents submitted that the
aforesaid finding given by the High Court that under the Will, life
estate was created in favour of Mst. Durgi is binding between the
parties. As against this, learned counsel for the appellant pointed out
that the High Court has specifically held that under the Will absolute
ownership of the entire estate left by the testator is given to her and
that she was having power to sell or gift away the property.
Therefore, the finding which is given in the alternative is not final
binding adjudication between the parties.
In view of these submissions, the next question which is
required to be considered is whether the aforesaid finding is binding
between the parties and the issue is barred by res judicata. For this
purpose, we would refer to the relevant issues raised by the trial
Court. They are as under : -
3. (B) Is the plea regarding factum and validity of
adoption barred by res judicata in view of the decision in suit
No. 232/1924 and appeal No. 502/1925?
4. (A) Had Durgawati only a life interest under the Will
of Durga Prasad? What is the effect of the above referred
judgments on this point?
With regard to the factum and validity of adoption, the trial
Court held that the issue was barred by res judicata in view of the
decision rendered in First Appeal No. 502 of 1925. It is to be stated
that with regard to the contention whether Mst. Durgi was having life
interest or absolute ownership, the trial court has not raised issue of
res judicata and rightly so because that was not the question which
was required to be decided in the previous suit. On issue No. 4 (A)
raised by it, the court held that the decision in the previous case
limiting the interest of the widow to a life estate might not have the
force of res judicata in the present suit, yet the interpretation put by
the High Court on the will of Durga Prasad could not be ignored and
was binding on the Court. However, without considering this aspect,
the High Court referred to issue No. 6 quoted below which was raised
in the previous proceedings.
Is the defendant full owner of the property of her
late husband by virtue of his will dated the 1st November,
1917? If so, can the plaintiff claim the property in
question?
The High Court, therefore, held that in the previous
proceedings, the Court was called upon to decide defendants (Mst.
Durgis) main plea that she had an absolute estate under the Will and
also the alternative plea that she had a life estate and she could not be
dispossessed. The Court negatived the contention that the plea that
suit for possession would have failed on the finding that she had a life
estate and it was as such not necessary to go into the question as to
whether she had an absolute estate was without any merit because it is
the duty of the courts of law to record specific and clear cut finding on
all points of law raised before them. The Court, therefore, rejected the
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plea that the observations of the High Court in earlier proceedings
were mere obiter dicta and consequently not binding.
On the question of res judicata, we would only refer to the
decision rendered by this Court in Sajjadanashin Sayed MD. B.E.
EDR. (D) by LRs. Vs. Musa Dadabhai Ummer and Others [2000 (3)
SCC 350]. The Court in paragraph 12 observed as under:-
It will be noticed that the words used in Section 11
CPC are directly and substantially in issue. If the
matter was in issue directly and substantially in a prior
litigation and decided against a party then the decision
would be res judicata in a subsequent proceeding.
Judicial decisions have however held that if a matter was
only collaterally or incidentally in issue and decided in
an earlier proceeding, the finding therein would not
ordinarily be res judicata in a latter proceeding where the
matter is directly and substantially in issue.
In paragraph 18, the Court has further considered in which case,
it could be said that the issue was directly and substantially raised and
decided and held as under: -
In India, Mulla has referred to similar tests (Mulla,
15th Edn., p. 104). The learned author says : a matter in
respect of which relief is claimed in an earlier suit can be
said to be generally a matter directly and substantially in
issue but it does not mean that if the matter is one in
respect of which no relief is sought it is not directly or
substantially in issue. It may or may not be. It is possible
that it was directly and substantially in issue and it may
also be possible that it was only collaterally or incidentally
in issue, depending upon the facts of the case. The
question arises as to what is the test for deciding into
which category a case falls? One test is that if the issue
was necessary to be decided for adjudicating on the
principal issue and was decided, it would have to be
treated as directly and substantially in issue and if it is
clear that the judgment was in fact based upon that
decision, then it would be res judicata in a latter case
(Mulla p. 104). One has to examine the plaint, the written
statement, the issues and the judgment to find out if the
matter was directly and substantially in issue (Ishwer
Singh v. Sarwan Singh [AIR 1965 SC 948] and Syed
Mohd. Salie Labhai v. Mohd. Hanifa [(1976) 4 SCC 780].
We are of the view that the above summary in Mulla is a
correct statement of the law.
In the present matter, even though the trial court has considered
this aspect in detail, the High Court has not dealt with it. However, it
would not be necessary to deal with the same in detail in view of
Section 14 of the Indian Succession Act, 1956. Admittedly, deceased
Mst. Durgi was third wife of testator and was young and minor at the
relevant time. Testator was not having any other heir except his wife
Mst. Durgi. Mst. Durgi was entitled to maintenance from her husband
and from his property. So, after the death of her husband she would
have life interest even without will being executed in her favour. In
view of Section 14(1) of Hindu Succession Act, she would be absolute
owner of the said property. In such cases, exception provided under
Section 14(2) of the Act would not be applicable. Law on this
question is well settled and we would only refer to the decision in
Thota Sesharathamma and another vs. Thota Manikyamma (Dead)
By LRs. [(1991) 4 SCC 312], wherein this Court held as under : -
Section 14(2) of the Act is in the nature of a
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proviso or an exception to Section 14 and comes into
operation only if acquisition in any of the methods
indicated therein is made for the first time without there
being any pre-existing right in the female Hindu to the
property. If the case falls under the provisions of
Section 14(1) of the Act then the female Hindu shall
be held to be full owner of the property and sub-
section (2) of Section 14 will only apply where the
property is acquired without there being any pre-existing
right of the female Hindu in such property. This view
lends support to the object of the section which was to
remove the disability on women imposed by law and to
achieve a social purpose by bringing about change in the
social and economic position of women in Hindu
Society.
If the finding is positive her limited estate, though
created with restrictive covenants in instrument or an
omission to expressly so mention in full particulars
thereof in the instrument in that regard are of little
consequence. Her limited estate gets blossomed into
full ownership under Section 14(1) with a right to
bequeath, gift over, alienate or to deal in any manner
recognised by law. If on the other hand the Hindu
female acquires for the first time the title therein as a
grant with restrictive estate under the instrument with no
pre-existing title or right, sub-section (2) of Section 14
gets attracted and the restrictive covenants contained in
the instrument would bind her. She remains to be a
limited owner in terms thereof. The subsequent alienee
or transferee acquires no higher right thereunder than the
legatee etc. The reversioner to the last male holder is not
bound by such transfer and is entitled to succeed to the
estate, on her demise, in terms of the instrument.
Same view is taken in Beni Bai (Smt.) v. Raghubir Prasad
[(1999) 3 SCC 234]. Hence, presuming that Mst. Durgi was having
limited estate, she became absolute owner of the said property under
Section 14(1) of the Hindu Succession Act, 1956.
Hence, the appeal is allowed and the impugned judgment and
decree passed by the trial court and confirmed by the High Court is
quashed and set aside. The suit filed by the respondents is dismissed.
There shall be no order as to costs all throughout.
.J.
(M.B. Shah)
..J.
September 25, 2001. (R.P. Sethi)
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