Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8
CASE NO.:
Appeal (civil) 4153 of 2002
PETITIONER:
Sharad Subramanyan
RESPONDENT:
Soumi Mazumdar & Ors.
DATE OF JUDGMENT: 28/04/2006
BENCH:
B. N. Srikrishna & Lokeshwar Singh Panta
JUDGMENT:
J U D G M E N T
SRIKRISHNA, J.
This appeal impugns a judgment of the Division Bench of the Calcutta
High Court dated 28.6.2000. That an appeal was itself carried against an
order of the learned Single Judge dated 16.2.2000 in Testamentary
Jurisdiction allowing an application for discharge of the Joint Executors in
respect of the estate of one Reba Mitra and appointing an Administrator
pendente lite.
Facts
Phanindra Nath Mitra had two sons, Prabhat Kumar Mitra and Kamal
Kumar Mitra, and a daughter, Suhasini Bose. The genealogical tree of the
family is as under:
Phanindra Nath Mitra
Prabhat Kr. Mitra (Son) Kamal Kr. Mitra (Son) Suhasini Bose (Daughter)
(Latika Deb-Sabita Bose) (Reba Mitra \026 Wife)
Daughters (Issueless)
_______________________________________________________________________
Nieces
Latika Deb Sabita Bose (Deceased)
R 5
(Soumi Mazumdar & Sh
antanu Bose)
R 1 R 2
Kamal Kumar Mitra entered into an agreement dated 22.5.1988 with
T.K. Ramasubramanyan (father of Sharad Subrmanyan, hereinafter "the
appellant") by which a tenancy was created in respect of the ground floor
flat of certain premises situated at 13/1, Promothesh Barua Sarani, Kolkata
(hereinafter "the Suit Property") at a monthly rental of Rs. 5,000/-. A further
agreement dated 1.11.1988 was made between Kamal Kumar Mitra and the
present appellant-Sharad Subramanyan for providing to the tenants the
fittings and fixtures in the ground floor at a monthly charge of Rs. 750/-. On
24.2.1989, there was a third agreement between Kamal Kumar Mitra and the
appellant-Sharad Subramanyan and a fourth on 28.4.1989, by which the
former agreed to lease the whole of terrace of the existing construction of the
Suit Property to enable the appellant to construct at his cost an additional
floor. The demise was for a period of twenty-one years commencing from
1.4.1989 with a renewal clause for a further period of twenty-one years after
expiry of every period of twenty-one years. Though the agreement created a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8
lease for such a long period with a renewal clause, it was not registered.
On 19.3.1991, Kamal Kumar Mitra executed his last Will and
Testament under which, he appointed Reba Mitra, his wife, as Executrix and
on her death, the appellant and one Subir Kumar Deb as Executors. Under
the Will, the Testator had given all his movable properties to Reba Mitra, but
she was given only a life interest in the Suit Property. The Will further
provided that on the death of the said Reba Mitra, the Executors would
execute the Will and realise and collect the rents, issues and profits arising
out of the Suit Property and distribute the same in the manner as prescribed
in the Will. Kamal Kumar Mitra died on 26.9.1991 leaving behind his wife,
Reba Mitra, as his sole heir.
On 21.10.1992, Reba Mitra executed a lease deed in respect of the
Suit Property granting certain rights to the appellant. Reba Mitra died on
27.11.1998. The appellant produced a Will dated 21.10.1992 claiming that
he had been granted certain rights under the Will. A second Will dated
14.5.1993 and a third Will dated 14.12.1997 were produced by the parties
each of whom claimed that the Will in his/her favour was the genuine Will.
On 17.8.2001, Reba Mitra’s Will dated 14.12.1997 was granted
probate by the District Judge, Alipore. The appellant had been appointed as
one of the Executors under the Will of Kamal Kumar Mitra. Soumi
Mazumdar and Shantanu Bose (Respondent Nos. 1 and 2, respectively), the
legatees under the said Will, by their letter dated 16.4.1999, called upon the
appellant and Subir Kumar Deb, Joint Executors, to give assent to the legacy
under the Will of Reba Mitra, hand over vacant possession of the first floor
of the Suit Property and also distribute all the income of the estate in terms
of the Will of the late Kamal Kumar Mitra. On 30.4.1999, Subir Kumar Deb
addressed a letter stating that he was not in possession of any legal document
and, therefore, he was unable to execute the estate according to the Will of
Kamal Kumar Mitra. On 4.5.1999, the appellant wrote back alleging that
Reba Mitra had demised the first floor of the Suit Property in the year 1992
in his favour. The appellant also stated that he was going through the various
legal implications to examine the demand for disbursement of the income.
On 11.10.1999, the respondent filed an application before the High
Court praying for discharge of the Joint Executors, to pay to the appellant
the outstanding rent, issues and profits in respect of the Suit Property and
also to hand over its possession. On 15.12.1999, a learned Single Judge of
the High Court made an order restraining the Joint Executors from dealing
with, disposing of and/or encumbering and/or parting with possession or in
any way dealing with any portion of the Suit Property till the disposal of the
application. On 16.2.2000, an interim relief application taken out was
allowed by the learned Single Judge taking serious notice of the fact that the
Executors had not filed an affidavit to controvert the allegations made
against them. An appeal was filed by the appellant before the Division
Bench, which resulted in the impugned judgment dated 28.6.2000,
dismissing the appeal. Hence, the appeal before us.
Contentions
Learned Senior Counsel for the appellant Mr. P. Krishnamoorthy Iyer
contended that, under Clause 6 of the Will of the late Kamal Kumar Mitra,
the Suit Property was bequeathed to Reba Mitra for her life. Under the said
Will, after the death of Reba Mitra the Executors and Trustees named in the
Will were to collect the rent, issues and profits in the Suit Property, and
disburse it to the persons named in Clause 6 of the Will. The contention of
the learned Senior Counsel for the appellant is that Kamal Kumar Mitra had
created a life interest in favour of his wife, Reba Mitra, which was in
recognition and discharge of her right to maintenance from her husband.
Counsel further contends that, by reason of sub-section (1) of Section 14 of
the Hindu Succession Act, 1956 (hereinafter "the Act"), this limited interest
blossomed into an absolute interest. Consequently, he claims that Reba
Mitra became the absolute owner of the Suit Property. Further that, Reba
Mitra, during her lifetime, absolutely owned the Suit Property and made
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8
dispositions by her Will in favour of the appellant, which were valid and
justified. Under the Will, Reba Mitra had demised the first floor of the Suit
Property in favour of the appellant, consequently the appellant was entitled
to claim lease right in respect of the first floor of the Suit Property. The fact
that the appellant was the Executor makes no difference, whatsoever, to the
disposition validly made by Reba Mitra in her Will. As an Executor, the
appellant had taken no step, in any manner inconsistent with being the
Executor of Kamal Kumar Mitra’s Will, consequently the learned counsel
urged that, the High Court/learned Single Judge was wrong in discharging
the Joint Executors and appointing an Administrator pendente lite.
The learned Senior Counsel for the respondents, however, urged that
there is no absolute proposition that every time a property is bequeathed in a
Will, it would necessarily be in recognition or discharge of a pre-existing
right to maintenance; that even under the Hindu Adoption and Maintenance
Act, 1956 Reba Mitra had no right of maintenance as against her husband
during the lifetime of her husband; that the property bequeathed to Reba
Mitra in the Will of her husband, Kamal Kumar Mitra, was only a limited
estate during her lifetime; the provisions of sub-section (2) of Section 14 of
the Act would, therefore, apply and she would continue to retain only a life
interest in the Suit Property. Consequently, she had no right to make a lease
in favour of the appellant, hence, the so-called lease in favour of the
appellant under the Will of Reba Mitra is invalid and unenforceable. Apart
therefrom, the appellant as an Executor of Reba Mitra’s Will had set up a
title in the Suit Property, which was inconsistent with and injurious to the
estate of Reba Mitra. Consequently, under the provisions of the Indian
Succession Act, 1925 (hereinafter "the Indian Succession Act") the
executors having misconducted themselves, were rightly removed by the
Testamentary Court.
Nature of Interest
Section 14 of the Act was enacted by Parliament in order to ensure
that the limited estate devolving upon a female Hindu be abolished and the
female Hindu who possessed property, acquired before or after coming into
force of the Act, should hold it as full owner thereof and not as a limited
owner. Section 14 of the Act reads as under:
"Property of a female Hindu to be her absolute Property.\027
(1) Any property possessed by a female Hindu, whether
acquired before or after the commencement of this Act, shall be
held by her as full owner thereof and not as a limited owner.
Explanation\027In this sub-section, "property" includes both
movable and immovable property acquired by a female Hindu
by inheritance or devise, or at a partition, or in lieu of
maintenance or arrears of maintenance, or by gift from any
person, whether a relative or not, before, at or after the
marriage, or by her own skill or exertion, or by purchase or by
prescription, or in any other manner whatsoever, and also any
such property held by her as stridhana immediately before the
commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any
property acquired by way of gift or under a will or any other
instrument or under a decree or order of a civil Court or under
an award where the terms of the gift, will or other instrument or
the decree, order or award prescribe a restricted estate in such
property. "
A judgment of this Court has recognized that sub-section (2) is in the
nature of a proviso to the rule enacted in sub-section (1) of Section 14 of the
Act. In V. Tulasamma and Ors. v. Sesha Reddy (Dead) by L.Rs.
(hereinafter "Tulasamma") after a complete survey of the Shastric Hindu
Law and the changes brought therein by Section 14 of the Act, this Court
culled out the principles arising thereunder in the following words:
"(1) that the provisions of Section 14 of the 1956 Act must be
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8
liberally construed in order to advance the object of the Act
which is to enlarge the limited interest possessed by a Hindu
widow which was in consonance with the changing temper of
the times;
(2) it is manifestly clear that sub-section (2) of Section 14 does
not refer to any transfer which merely recognises a pre-existing
right without creating or conferring a new title on the widow.
This was clearly held by this Court in Badri Pershad’s case
((1969) 2 SCC 586).
(3) that the Act of 1956 has made revolutionary and far-
reaching changes in the Hindu society and every attempt should
be made to carry out the spirit of the Act which has
undoubtedly supplied a long felt need and tried to do away with
the invidious distinction between a Hindu male and female in
matters of intestate succession;
(4) that sub-section (2) of Section 14 is merely a proviso to sub-
section (1) of Section 14 and has to be interpreted as a proviso
and not in a manner so as to destroy the effect of the main
provision."
Analysing the scope and extent of sub-section (2) of Section 14 of the Act,
which this Court treated as a proviso to sub-section (1), this Court took the
view that as a proviso it should be interpreted in such a way so as not to
substantially erode sub-section (1) of Section 14 and the Explanation thereto.
It was pointed out that sub-section (2) had carved out a completely separate
field and before it could apply, the following three conditions must be
satisfied:
"(i) that the property must have been acquired by way of gift,
will, instrument, decree, order of the Court or by an award;
(ii) that any of these documents executed in favour of a Hindu
female must prescribe a restricted estate in such property; and
(iii) that the instrument must create or confer a new right, title
or interest on the Hindu female and not merely recognise or
give effect to a pre-existing right which the female Hindu
already possessed."
Finally, this Court said:
"Where any of these documents are executed but no restricted
estate is prescribed, sub-section (2) will have no application.
Similarly where these instruments do not confer any new title
for the first time on the female Hindu, Section 14(2) would
have no application. It seems to me that Section 14(2) is a
salutary provision which has been incorporated by the
Parliament for historical reasons in order to maintain the link
between the Shastric Hindu Law and the Hindu Law which was
sought to be changed by recent legislation, so that where a
female Hindu became possessed of property not in virtue of any
pre-existing right but otherwise, and the grantor chose to
impose certain conditions on the grantee, the Legislature did
not want to interfere with such a transaction by obliterating or
setting at naught the conditions imposed."
After noticing the divergent views of different High Courts, this
Court, summarised its conclusion as under:
"(1) The Hindu female’s right to maintenance is not an empty
formality or an illusory claim being conceded as a matter of
grace and generosity, but is a tangible right against property
which flows from the spiritual relationship between the
husband and the wife and is recognised and enjoined by pure
Shastric Hindu Law and has been strongly stressed even by the
earlier Hindu jurists starting from Yajnavalkya to Manu. Such a
right may not be a right to property but it is a right against
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8
property and the husband has a personal obligation to maintain
his wife and if he or the family has property, the female has the
legal right to be maintained therefrom. If a charge is created for
the maintenance of a female, the said right becomes a legally
enforceable one. At any rate, even without a charge the claim
for maintenance is doubtless a pre-existing right so that any
transfer declaring or recognising such a right does not confer
any new title but merely endorses or confirms the pre-existing
rights.
(2) Section 14(1) and the Explanation thereto have been
couched in the widest possible terms and must be liberally
construed in favour of the females so as to advance the object of
the 1956 Act and promote the socio-economic ends sought to
be achieved by this long needed legislation.
(3) Sub-section (2) of Section 14 is in the nature of a proviso
and has a field of its own without interfering with the operation
of Section 14(1) materially. The proviso should not be
construed in a manner so as to destroy the effect of the main
provision or the protection granted by Section 14(1) or in a way
so as to become totally inconsistent with the main provision.
(4) Sub-section (2) of Section 14 applies to instruments,
decrees, awards, gifts, etc. which create independent and new
titles in favour of the females for the first time and has no
application where the instrument concerned merely seeks to
confirm, endorse, declare or recognise pre-existing rights. In
such cases a restricted estate in favour of a female is legally
permissible and Section 14(1) will not operate in this sphere.
Where, however, an instrument merely declares or recognises a
pre-existing right, such as a claim to maintenance or partition or
share to which the female is entitled, the sub-section has
absolutely no application and the female’s limited interest
would automatically be enlarged into an absolute one by force
of Section 14(1) and the restrictions placed, if any, under the
document would have to be ignored. Thus where a property is
allotted or transferred to a female in lieu of maintenance or a
share at partition, the instrument is taken out of the ambit of
sub-section (2) and would be governed by Section 14(1) despite
any restrictions placed on the powers of the transferee.
(5) The use of express terms like "property acquired by a
female Hindu at a partition", "or in lieu of maintenance", "or
arrears of maintenance", etc. in the Explanation to Section 14(1)
clearly makes sub-section (2) inapplicable to these categories
which have been expressly excepted from the operation of sub-
section (2).
(6) The words "possessed by" used by the Legislature in
Section 14(1) are of the widest possible amplitude and include
the state of owning a property even though the owner is not in
actual or physical possession of the same. Thus, where a widow
gets a share in the property under a preliminary decree before or
at the time when the 1956 Act had been passed but had not been
given actual possession under a final decree, the property would
be deemed to be possessed by her and by force of Section 14(1)
she would get absolute interest in the property. It is equally well
settled that the possession of the widow, however, must be
under some vestige of a claim, right or title, because the section
does not contemplate the possession of any rank trespasser
without any right or title.
(7) That the words "restricted estate" used in Section 14(2) are
wider than limited interest as indicated in Section 14(1) and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8
they include not only limited interest, but also any other kind of
limitation that may be placed on the transferee."
In this case, it was observed that, the properties in suit were allotted to
the appellant-Tulsamma under a compromise certified by the Court; that the
appellant had taken only a life interest in the properties under the
compromise deed. However, she continued to be in possession of the
properties till 1956 when the Act came into force and, therefore, by reason
of Section 14(1), the properties were allotted to her in recognition and in lieu
of her right to maintenance, which was a pre-existing right. Consequently, it
fell out of the ambit of sub-section (2) of Section 14 of the Act as a result of
which she became the full owner of the properties involved.
In C. Masilamani Mudaliar and Ors. v. Idol of Sri
Swaminathaswami Swaminathaswami Thirukoil and Ors. the views
expressed in Tulasamma (supra) were reiterated as necessary for carrying
forward the intention of the Parliament to ensure "\005that women have an
active role in the development process. Appropriate economic and social
reforms should be carried out with a view to eradicate all social injustice."
Hence, it was held that the limited estate, which had been conferred on the
legatee in lieu of the right to maintenance under the Hindu Adoption and
Maintenance Act, 1956, was in recognition of the pre-existing right to
maintenance known under the Shastric law and it became an absolute right
under Section 14(1) and the legatee became the absolute owner of the
property.
In Balwant Kaur and Anr. v. Chanan Singh and Ors. the right of
maintenance of a widowed daughter was recognised under the Will and
certain property was demised to her, though as a limited life estate. This
Court held that, this was a situation falling squarely within the ambit of sub-
section (1) of Section 14 of the Act and was beyond the purview of sub-
section (2) and that as the Will itself recognised in express terms and
provided that "\005even after his (the testator) death, his (the testator) other
legatee brothers have to look after the welfare of his (the testator) widowed
daughter\005" . Hence, sub-section (1) of Section 14 would apply and the
limited estate would turn into a full estate.
Mr. Bhaskar P. Gupta, learned Senior Counsel for the respondents,
rightly distinguished all these cases, as it was clearly proved therein, that the
properties had been given to a female Hindu, either in recognition of or in
lieu of her right to maintenance under the Shastric Hindu Law or under the
Hindu Adoption and Maintenance Act, 1956. Consequently, these were
instances where the dispositions of property, albeit as a limited estate, would
blossom into a full interest by reason of sub-section (1) of Section 14 of the
Act.
Learned Counsel further contended that, there is no absolute rule that
all properties demised to a female Hindu were necessarily in recognition of
or in lieu of her right to maintenance. It was possible, even after the Act
came into force, to create a limited estate by reason of a gift or will. Such a
situation would fall within the ambit of sub-section (2) of Section 14 of the
Act as long as it was not in recognition of or in lieu of a right to maintenance
under the Shastric Hindu Law or under a statute. Learned Senior Counsel
relied on Section 30 of the Act, which recognises the right of a Hindu to
dispose of self-acquired property by Will. Mr. Gupta relied on the judgment
of this Court in Bhura and Ors. v. Kashi Ram , which was also a case of,
limited estate conferred on a female Hindu by a Will. This Court held that,
upon a proper construction of the Will, the bequeathal in favour of the
female Hindu was clearly indicative of:
"\005the testator’s intention of only creating a life interest in her
and nothing more and the various expressions used therein are
indicative of and are reconcilable only with the hypothesis that
the testator was creating an estate in favour of \005(the female
Hindu)\005only for her lifetime and not an absolute estate."
Thus, in view of the fact that there were no indications, either in the Will or
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8
externally, to indicate that the property had been given to the female Hindu
in recognition of or in lieu of her right to maintenance, it was held that the
situation fell within the ambit of sub-section (2) of Section 14 of the Act and
that the restricted life estate granted to the female Hindu could not be
enlarged into an absolute estate. Learned counsel for the respondents relied
strongly on this judgment and contended that there was no proposition of
law that all dispositions of property made to a female Hindu were
necessarily in recognition of her right to maintenance whether under the
Shastric Hindu Law or under the statutory law. Unless the said fact was
independently established to the satisfaction of the court, the grant of the
property would be subject to the restrictions contained therein, either by way
of a transfer, gift or testamentary disposition. Learned counsel also
distinguished the three cases cited by the learned counsel for the appellant
that in each, the circumstances clearly indicated that the testamentary
disposition was in lieu of the right of maintenance of the female Hindu. We
think that this contention is well merited and needs to be upheld.
Turning to the facts of the present case, we notice that not only was
there no material to indicate to the High Court that the property was given to
Reba Mitra in lieu of her right of maintenance, but such an argument was not
even advanced before the Court. Even the impugned judgment of the High
Court observes:
"It is not the case of the appellant that at the time when K.K.
Mitra executed the Will, his wife was entitled to enforce her
right of maintenance under the provisions of Hindu Adoptions
and Maintenance Act or otherwise. She had been undisputedly
living with her husband upon her husband’s death till the Will
was probated, she was enjoying the property as her own. Even
in terms of the Will dt. 19.3.1991 she had a right of enjoyment
in respect of the entire property."
The High Court then noticed Section 30 of the Act which empowers a Hindu
possessed of any property to execute a Will; and confer a grant in favour of
another either absolutely or to a limited extent; even to the extent of
depriving his natural heirs from enjoying the estate left by him. We think
that the High Court was right in taking this view. The High Court also took
notice of the fact that there was no material on record from which it could be
concluded that the disposition of life estate in favour of Reba Mitra in the
Will of her husband, Kamal Kumar Mitra, was in lieu of or in recognition of
her right of maintenance. Consequently, we agree with the finding of the
High Court that Reba Mitra had only a limited right, namely, life interest in
the Suit Property. Thus, she could not have created a long-term lease as she
has purportedly done.
Discharge of Executor
Learned counsel for the respondents then referred to the provisions of
the Indian Succession Act. He urged that under Section 301 of the Indian
Succession Act: "The High Court may, on an application made to it,
suspend, remove or discharge any private executor or administrator\005" and
appoint another person in his place where continuance of the executor is
detrimental to the estate of the deceased. Further it was pointed out that,
under Section 317 of the Indian Succession Act, an executor had to make an
inventory and file periodical accounts of the estate. It is contended that the
appellant had failed to do so and was also liable to be removed under
Section 301 of the Indian Succession Act. Finally, it is urged that the
appellant as an executor had set up a claim in the estate, which was
inconsistent with the deed of the executor and, therefore, he was unfit to
function as an executor; the High Court had rightly discharged him from his
office and appointed an Administrator pendente lite.
Conclusion
From the factual circumstances, while the High Court’s appointment
of an Administrator pendente lite appears to be correct, we need not finally
decide as to whether the appellant was unfit to act as an executor of Kamal
Kumar Mitra’s Will. We are cognizant of the fact that the High court is still
seized of the matter and the order passed is only an interlocutory order based
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8
on prima facie considerations. In our view, there was sufficient justification
for the High Court to make the order for appointment of the Administrator
pendente lite to protect the estate during the pendency of the petition before
it. The question as to whether the appellant as the executor has breached his
fiduciary duty, can only be determined at the end of the trial. In our view,
therefore, the impugned judgment of the High Court is not liable to be
interfered with.
We see no merit in the appeal, which is hereby dismissed. No costs.
27711