Full Judgment Text
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PETITIONER:
SANT NARAIN MATHUR & ORS.
Vs.
RESPONDENT:
RAMA KRISHNA MISSION & ORS.
DATE OF JUDGMENT27/09/1974
BENCH:
KHANNA, HANS RAJ
BENCH:
KHANNA, HANS RAJ
BEG, M. HAMEEDULLAH
KRISHNAIYER, V.R.
CITATION:
1974 AIR 2241 1975 SCR (2) 188
CITATOR INFO :
R 1976 SC 866 (9)
ACT:
Practice and Procedure-Statement in the High Court judgment
that certain issues were conceded whether can be challenged
before the Supreme Court particularly when. it was not
challenged in the Leave Application and the Special Leave
Petition--Permission to raise a new plea to be determined on
what grouting.
HEADNOTE:
Dr. Chandan Singh had two sons Tegh Singh and Shamsher Singh
and two daughters Deva Devi and Lakshmi Devi Dayali Devi was
the wife of Shamsher Singh. Dr. Chandan Singh executed a
will in 1897. Chandan Singh and Tegh Singh died.
Thereafter Shamsher Singh executed a will in 1944 in favour
of Rama Krishna Mission and making provision for the
residence and maintenance of his wife and sister. Mr. Mitra
the executor obtained a probate of the will in spite of the
opposition of Dayali Devi. The Division Bench of the High
Court confirmed the grant of probate by the Single Judge.
Therefore, Dayali Devi filed a suit for a declaration that
she was the owner of the Properties left by her husband.
The said suit was dismissed. The High Court dismissed the
appeal. In the meanwhile, a suit for possession of the
property bequeathed to Rama Krishna Mission was filed where
Deva Devi was impleaded as a defendant on her application.
The Trial Court awarded the decree for possession in favour
of Rama Krishna Mission. Dayali Devi filed an appeal
against that judgment in the High Court. During the
pendency of the appeal in the High Court Deva Devi and
Dayali Devi died. Four persons including the appellants
applied to the High Court to be substituted as legal
representatives of Dayali Devi on the ground that Dayali-
Devi had executed a will in their favour 2 days before her
death. The High Court dismissed the appeal. The High Court
judgment mentioned that it was not challenged by the
appellants that a part of the bequeathed property was self-
acquired property of Shamsher Singh and that Shamsher Singh
had become full owner of the share of Tegh Singh. It was
contended on behalf of the appellant that the observations
in the High Court judgment about the concession are
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erroneous.
HELD : The observation of the High Court that certain
findings were not challenged is unequivocal and it is
difficult to believe that the Learned Judges of the High
Court would erroneously say so. The same counsel who argued
the appeal also filed the Application for Leave which is
silent on the point. Even in the Special Leave Petition
filed in this Court no ground was taken that the observation
of the High Court was incorrect. [193 E-H]
The contention that Shamsher Singh was owner of only I share
of the estate of Chandan Singh after the death of Tegh Singh
was not allowed to be raised for the first time in this
Court. While disallowing the appellant to raise the
contention this Court took into account various facts
including the fact that the plea is being set up by persons
who admittedly had no relationship with Chandan Singh,
Shamsher Singh or Dayali Devi. Another fact which weighed
with this Court is that the suit giving rise to this appeal
was instituted more than 16 years ago. The suit instituted
in 1958 was the off-shoot of the litigation which started in
1946 and it is time that a final curtain is drawn on the
long litigation. The Court in this context observed :
"Deva Devi and Dayali Devi, who claimed rights and interest
in the property is dispute, are now no more. So is Capt.
Mitra who was the party arrayed against the two ladies in
the litigation. It is time in our opinion, that we draw the
final curtain on this long drawn litigation and not allow
its embers to shoulder for a further length of time, more so
when the principal contestants have all departed bowing as
it were to the inexorable law of nature." [195 D-H]
189
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 689 of 1973.
Appeal by special leave from the judgment and Order dated
the October 19, 1972 of the Allahabad, High Court in First
Appeal No. 360 of 1963.
Sri Narain Andley, O. C. Mathur and D. N. Misra, for the
appellant.
B. Sen, P. K. Chaterjee and G. S. Chatterjee, for the
respondent
The Judgment of the Court was delivered by
KHANNA, J.-This is an appeal by special leave against the
judgment of the Allahabad High Court affirming on appeal the
decision of the trial court whereby a decree for possession
of the property in dispute had been awarded in favour of
Capt. J. N. Mitra deceased plaintiff, now represented by
Rama Krishna Mission and other respondents, against Smt.
Dayali Devi and Smt. Deva Devi decease&, defendants, now
represented by Sant Narain Mathur and other appellants.
Although the question involved in appeal lies within a
narrow compass, the case has a long history going back to
the end of the last century, and it would, therefore, be
necessary to set out the detailed facts. "Dr. Chandan Singh
who hailed from Pilibhit settled in Dehra Dun towards the
end of the last century. Dr. Chandan Singh had two sons
Tegh Singh and Shamsher Singh and two daughters Deva Devi
and Lachmi Devi. Dayali Devi was the wife of Shamsher
Singh. On March 26, 1897 Dr. Chandan Singh executed a will.
After making provision for the maintenance of his two wives
and the marriage expenses of daughter- Deva Devi, Dr.
Chandan Singh bequeathed his estate in equal shares to his
sons Tegh Singh and ShamSher Singh for their life time. The
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relevant part of clause 6-B of the will read as under :
"By way of policy I deem it necessary to make
it clear that by this writing I want to give a
moiety share, at the most, to each of my both
the sons, in the income of the estate left by
me for their life-time; and after each of
them, his son or legal heir shall have
absolute proprietary right to the extent of
one,half subject to the age aforementioned.
In case one of the brothers dies issue less
and the other brother may be alive at that
time, (i.e., after the death of the former),
then the deceased brother’s wife shall be
entitled to receive maintenance allowance only
and the property shall vest in the surviving
brother. Should both of them die issue less,
their legal heirs shall become entitled to all
as mentioned above, at the most, to the extent
of one-half share."
Chandan Singh died on April 1, 1897. Tegh Singh, elder son
of Chandan Singh, died issue less in 1908. On July 14, 1944
Shamsher Singh, younger son of Chandan Singh, executed a
will. Shamsher Singh be fore that had been married to
Dayali Devi but he had no issue from her. The will related
to the entire estate of Shamsher Singh, including the
property in dispute, and was executed by Shamsher Singh on
the
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assumption that he was the full owner of that property. By
this will Shamsher Singh appointed Capt. J. N. Mitra as the
executor of his estate. Shamsher Singh gave a right of
residence and maintenance to his wife Dayali Devi. He also
made provision for the residence and maintenance of his
sister Deva Devi. The entire estate was bequeathed to Rama
Krishna Mission and the bequest was to take effect after the
death of Dayali Devi. Shamsher Singh died issueless on
January 20, 1946 leaving- behind his widow Dayali Devi and
sister Deva Devi.
On December 10, 1946 Capt. J. N. Mitra applied for grant of
probate of the will of Shamsher Singh in the Allahabad High
Court. Dayali Devi contested the aforesaid petition and
also set up arrival will. The High Court did not accept the
plea of Dayali Devi regarding the rival will. Probate was
granted to Capt. Mitra on March 18, 1949. Dayali Devi
filed Letters Patent appeal against the order of the single
Judge granting probate to Capt. Mitra but her appeal was
dismissed on March 14, 1952.
On July 15, 1952 Dayali Devi filed civil suit No. 54 of 1952
against Capt. Mitra, Rama Krishna Mission and Deva Devi in
the court of the Civil Judge Dehra Dun for a declaration
that she was the owner of all movable and immovable
properties of her husband Shamsher Singh. According to the
claim of Dayali Devi, as the legal heir of Shamsher Singh
she became entitled to the aforesaid properties under the
will of Chandan Singh. Dayali Devi’s suit was dismissed by
the trial court on November 7, 1958. It was held that
Dayali Devi did not acquire any interest under the will of
Chandan Singh. The trial court came to this conclusion on
the basis of the Privy Council decision in Tagore v.
Tagore(1) that a bequest in favour of unborn persons was
void. It was observed that Chandan Singh did not intend to
give any property to any legal heir of his sons except to
their sons. The court held that part of the property
bequeathed by Shamsher Singh was his self-acquired property’
It was also held that Shamsher Singh was entitled to one
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half share for his life in the property bequeathed to him by
Chandan Singh. Regarding the other half share which was
bequeathed for his life to Tegh Singh, the court held that
after Tegh Singh’s death Shamsher Singh became absolute
owner of that. As Dayali Devi was held not entitled to the
property in question under the will of Chandan Singh, her
suit was dismissed.
Dayali Devi filed appeal No. 605 of 1958 against the
judgment and decree of the trial court dismissing her suit.
The Allahabad High Court dismissed the appeal as per
judgment dated November 21, 1961. It was held by the High
Court that Chandan Singh never intended to give by his will
to his sons widows anything more than a right of mainten-
ance. Dayali Devi as such was held to have no right in
Chandan Singh’s property under his will. Shamsher Singh, it
was further held, was the heir of Tegh Singh who had died
issue-less. There was, in the opinion of the High Court, no
difficulty in the way of Shamsher Singh executing a will
with respect to half of the estate of Chandan Singh which
had been earmarked for the maintenance of Tegh Singh. As
regards the other half share intended for Shamsher Singh,
although the High Court observed that, his sister Deva Devi
seemed to be his legal heir, it did
(1) I.A. Supp Vol. 1872-73 p. 43.
191
not go into this aspect of the matter as Deva Devi had made
no claim. Another finding of the High Court was that Dayali
Devi was born in 1904 and as such was not in existence at
the time of the death of Chandan Singh in 1897. Following
the case of Tagore v. Tagore (supra), the High Court held
that Dayali Devi being not in existence, at the time of
Chandan Singh’s death could not acquire any interest in his
estate under his will. Dayali Devi was consequently held
not entitled to challenge Shamsher Singh’s will.
In the meantime during the pendency of Dayali Devi’s suit
No. 54 of 1952 in the trial court, Capt. Mitra filed on
February 1,1958 suit No. 31 of 1958 giving rise to the
present appeal against Dayali Devi. This was a suit for
possession of the property, details of which are as, under :
(1) Kothi No. 7 Kutcheri Road, Dehra Dun
known as Tegh Villa.
(2) One _shop being part of No. 4, New Road,
Dehra Dun in which a Chemist and Druggist’s
business styled Dr. Chandan Singh & Sons used
to be run.
(3) Haveli being part of No. 4, New Road,
Dehra Dun in the occupation of Shri B. K.
Mukherji Vakil tenant.
(4) Haveli being part of No. 4, New Road,
Dehra Dun.
(5) Kothi known as Vishranti situated at
Kishanpura, Rajpur Road, Dehra Dun.
Capt. Mitra claimed possession of the above mentioned
properties as the, executor appointed under the will of
Shamsher Singh.
Deva Devi was impleaded as a defendant in the above
mentioned suit on her application as she claimed the
property in dispute in her own, right.
The trial court awarded a decree for possession of the
property in. dispute in favour of the plaintiff against the
defendants on March 27, 1963. It was held that Shamsher
Singh had executed will dated July 14, 1944 while being of
sound disposing mind. Vishranti kothi was held to be
self-acquired property of Shamsher Singh. As regards Kothi
No. 7, Kutcheri Road, the court held that the superstructure
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thereof was the self-acquired property of Shamsher Singh
while the sight of that Kothi was his ancestral property.
The shopand the two Havelis on New Road were held to be
ancestral properties of Shamsher Singh. Dayali Devi, it was
held, had no interest in the estate of Chandan Singh as she
was not born when Chandan Singh had died. As regards Deva
Devi, the trial court observed that Chandan Singh did not
intend to create any interest in favour of his daughters.
Shamsher Singh was held to ’have acquired full ownership
rights in the assets left by Chandan Singh. In the result a
decree for possession of the property in dispute was awarded
in favour of Capt. Mitra against Dayali Devi and Deva Devi.
Dayali Devi filed appeal No. 360 of 1963 against the decree
for possession of the property in dispute. Deva Devi filed
application to-
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appeal against that decree in forma pauperis. Dayali Devi’s
application in this respect was rejected by the High Court
on September 18, 1963. Dayali Devi thereupon filed cross-
objections, but her cross-objections too were dismissed by
the High Court on April 24, 1964 on the ground that they
were barred by limitation as well as on the ground that they
were not maintainable. Deva Devi thereafter filed
application for review of the judgment of the trial court,
but this application was dismissed by the trial court on
August 18, 1965. Deva Devi died on November 29, 1966. The
High Court as per order dated December 20, 1967 directed
that Deva Devi’s name be struck off. As Dayali Devi made a
claim that Deva Devi had executed a will in her favour, the
High Court observed that the question whether Dayali Devi
was legate of Deva Devi would be determined, if necessary,
at the time of the hearing or the appeal. Dayali Devi too
died during the pendency of her appeal in the High Court on
November 10, 1968. Four persons, including the three
appellants, and Durga Prasad respondent No. 4 applied to the
High Court to be substituted in appeal as legal repre-
sentatives of Dayali Devi on the ground that Dayali Devi had
two days before her death executed a will in their favour.
The High Court as per order dated August 4, 1972 allowed the
said application for substitution on the ground that even an
intermedellers the applicants would be legal representatives
of Dayali Devi.
On October 19, 1972 the High Court dismissed appeal No. 360
of 1963 which had been filed by Dayali Devi. It was
observed that the finding of the trial court that Kothi
Vishranti and superstructure of Kothi No. 7, Kutcheri Road
were self-acquired properties of Shamsher Singh had not been
challenged in appeal. It was further observed that the
finding of the trial court that Shamsher Singh had become
full owner of one half share of Tegh Singh in the estate of
Chandan Singh too had not been challenged. So far as the
rights of Deva Devi were concerned, the High Court observed
that the decree which had been awarded in favour of Capt.
Mitra against her was binding on Deva Devi as her
application to appeal in forma pauperis as well as her
cross-objections had been dismissed. Deva Devi’s successors
could not therefore, challenge the decree awarded against
her. Dealing with the case of Dayali Devi, the High Court
held that she was bound by the findings given against her in
the earlier appeal No. 605 of 1958. The aforesaid judgment,
it was observed, operated as res judicata against Dayali
Devi. The counsel for the appellant also referred before
the High Court to Order 41, Rule 33 of the Code of Civil
Procedure and contended that the trial court had wrongly
held that Deva Devi had nointerest in Chandan Singh’s
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estate on the death of Shamsher Singh. The High Court was
asked to set aside that error by recourse tothe above
provision of the Code of Civil Procedure. The High Court
rejected this contention because it was of the view that the
power under Order 41, Rule 33 of the Code could be exercised
only if as a result of interference in favour of the
appellant, it became necessary to readjust the rights of
other parties. If in a case the appellant failed to
substantiate the grounds upon which he sought relief from
the appellate court and his appeal failed on merits. the
appellant could not ask the court to consider and decide
points which could have risen
193
only if another party had filed an appeal. An observation
was also made by the High Court that Dayali Devi was
approbating and repro bating as she herself had set up a
will by Shamsher Singh on the basis that there was the fully
owner of the property in dispute.
After the dismissal of the appeal, the appellants applied to
the High Court under article 133 of the Constitution for
certifying the case to be fit for appeal to this Court.
This application was dismissed by the High Court as per
order dated February 21, 1973. The appellants thereupon
filed the present appeal by special leave.
Mr. Andley on behalf of the appellants has at the outset
referred to the following observations in the judgment of
the High Court
"Here it may, however, be mentioned and noted
that the finding of the trial court on the
above issues was not challenged before us by
the learned counsel for the appellants. The
finding is as follows :
I, therefore, hold that the, land on which
Kothi No. 7 Kutchery Road, Dehra Dun stands
and properties detailed at Nos. 2 to 4 in the
Schedule appended to the plaint i.e., shop and
two Havelies belonged to Dr. Chandan Singh
deceased and were the ancestral properties in
the hands of Shamsher Singh deceased and Kothi
known as Vishranti detailed at No. 5 in the
Schedule and the constructions now known as 7,
Kutchery Road, are self-acquired properties of
Shamsher Singh deceased."
It is submitted by the learned counsel that the High Court
was in error in observing that the finding reproduced above
had not been challenged in the High Court, We are unable to
accede to this submission. The observation of the High
Court that the above finding had not been challenged by the
learned counsel for the appellants is unequivocal, and we
find it difficult to believe that the learned Judges of the
High Court would state it in their judgment that the finding
reproduced above had not been challenged before them even
though the counsel for the appellants had actually
challenged the same. It is not disputed by Mr. Andley that
the same counsel who argued the appeal also filed
application before the High Court for obtaining certificate
of fitness for appeal to the Supreme Court. It was not
mentioned in that application that the observation in the
judgment of the High Court that the finding reproduced above
had not been challenged was incorrect. Had the aforesaid
finding in fact been challenged and the observation made by
the High Court in this respect was incorrect, one would
normally expect this fact to be mentioned in the forefront
of that application. The fact that there was no reference
to such incorrect observation shows that the stand now taken
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is the result of an afterthought. It is also significant
that even in the special leave petition which was filed in
this Court no ground was taken that the finding reproduced
above had been challenged before the trial court and that
the observation of the High Court in this respect was
factually incorrect.
The main contention advanced by Mr. Andley is that the trial
court and the High Court were in error in awarding a decree
for possession
14-L251 Sup.CI/75
194
of the entire property in dispute in favour of Capt. Mitra.
It is urged that Shamsher Singh was owner of only one-half
of the estate of Chandan Singh after the death of Tegh Singh
and, as such, Capt. Mitra, who was the executor appointed
under the will of Shamsher Singh, could even in a suit
against a trespasser obtain only a decree for joint posses-
sion to the extent of one-half share. The learned counsel
in this context has referred to two English decisions,
Eughes v. Justin(1) and Muir v. Jenks(2) wherein it was held
in claims for recovery of money that the plaintiff was not
entitled to judgment for an amount in excess of that which
was actually due to him. Reference has further been made to
the cases, Naresh Chandra Basu v. Hayder Sheikh Khan &
Ors.(3) Joy Gopal Singha & Ors. v. Probodh Chandra
Bhattacharjee,(4) Abdul Hamid & Ors. v. Durga Charan
Das,(5) Rain Ranbijaya Prasad Singh v. Ramjivan Ram &
Ors.(6) and Abdul Kabir and Ors. v. Ht. Jamila Khatoon and
Ors. (7) in support of the proposition that a co-sharer in a
suit against a trespasser can get a decree for joint posses-
sion of the property to the extent of his share only. As
against the above, Mr. B. Sen on behalf of the contesting
respondents has argued that the contention that the
plaintiff was entitled only to a decree for joint possession
should not be entertained in appeal to this Court as no such
plea was taken either in the trial court or in the High
Court. After hearing the learned counsel for the parties,
we are of the view that the submission made by Mr. Sen in
this behalf is well founded.
The present suit for possession of the property in dispute
was filed by Capt. Mitra on February 1, 1958 on the
allegation that Shamsher Singh was the owner of that
property and had executed a will where-under the plaintiff
was appointed the executor of Shamsher Singh’s estate. As
under the will a right of maintenance and residence was
given to Dayali Devi, the plaintiff sought possession of the
property in dispute subject to the right and interest of
Dayali Devi under the will of Shamsher Singh. The trial
court held that Shamsher Singh had acquired full ownership
rights in the assets left by Chandan Singh. When the matter
came up in appeal before the High Court, it found that ’the,
appeal must fail because the decree awarded against Deva
Devi had become final and because Dayali Devi was bound by
the Previous decision dated November 21, 1961 of the High
Court. The High Court under the circumstances did not
consider it necessary to construe the will of Chandan Singh
and to decide whether the finding recorded by the trial
court that Shamsher Singh had become the absolute owner of
the entire estate of Chandan Singh was correct or not. No
plea was taken on behalf of the defendants either in the
trial court or in the High Court that the plaintiff was
entitled only to a decree for joint possession because of
his being a co-sharer and not to a decree for exclusive
possession of the property in dispute. As no such plea was
taken in the trial court and the High Court, we are of the
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opinion that the appellants should not be allowed to take
this plea for the first time in this Court. In arriving at
this conclusion, we have taken into account the
(1) [1894] 16. B 67. (2) [1032] K. B. 412
(3)AIR 1929 Cal. 28. (4) AIR 1935 Cal.. 646
(5) AIR 1967 Cal. 116. (6) AIR 1942 Patna 397.
(7) AIR 1951 Patna 315.
195
various, facts and circumstances of the case. One such
circumstance is that the above plea is now being set up by
persons who admittedly had no, relationship with Chandan
Singh, Shamsher Singh or his widow Dayali Devi. The
appellants,- as already mentioned, base their claim upon a
will which, according to them, was executed by Dayali Devi
two lays before her death.
A very important circumstance, which has weighed with us, is
that the, suit giving rise to this appeal was instituted
more than 16 years ago on February 1, 1958. During the
entire period of more than 14 years that the case remained
pending in the trial court and the High Court, the plea now
sought to be raised was never taken. The suit instituted in
1958 was the off shoot of a litigation between the parties
which started in December 1946 when an application was filed
by Capt. Mitra for the grant of a probate of the will of
Shamsher Singh. Although the probate proceedings ended as a
result of the dismissal of the appeal of Dayali Devi against
the order granting probate the litigation between the
parties continued and showed no sign of abatement because
Dayali Devi filed in 1952 a suit for declaration in respect
of the property left by Shamsher Singh. It would thus
appear that we have reached the culminating point of a
litigation which arose out of a will executed in the last
century and which has been pending in one court or the other
since before the dawn of independence. The question is
whether we should call a halt and put an end to this
litigation or whether we should allow the litigation to take
a further meandering course which must necessarily be the
case if we allow the new plea to be raised in this Court. it
has already been mentioned that the trial court held that
Shamsher Singh had acquired full ownership rights in the
assets left by Chandan Singh. The High Court did not go
into this aspect of the matter as the need for doing so did
not arise in the light of the contentions advanced on behalf
of the appellants before the High Court. In case the
appellants are now allowed to take the new plea, the case
would have to be remanded to the High Court for dealing with
and recording a finding on the above aspect of the matter.
The High Court shall have also in that event to go into the
question as to whether Dayali Devi could deny the title of
Shamsher Singh to the entire property in dispute in view of
the fact that she herself had set up a will of Shamsher
Singh on the assumption that he was the full owner of the
property in dispute. The High Court did not fully deal with
this aspect of. The matter beyond observing that Dayali Devi
was approbating and reprobating. Deva Devi and Dayali Devi,
who claimed rights and interest in the property in dispute,
are now no more. So is Capt. Mitra who was the party
arrayed against the two ladies in the litigation. It is
time, in our opinion, that we draw the final curtain on this
long drawn litigation and not allow its embers to shoulder
for a further length of time, more so when the principal
contestants have all departed bowing as it were to the
inexorable law of nature. One is tempted in this context to
refer to the observations of Chief Justice Crowe in a case
concerning peerage claim made after the death without issue
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of the Earl of Oxford. Said the learned Chief Justice :
"Time. bath its revolutions; there must be a
period and an end to all temporal things-an
end of names, and dignities
196
and whatsoever is terrene, and why not of De
Vere ? For where is Nohun? Where is Nowbray?
Where is Mortimer? Why, which is more and
most of all, where is Plantagonet ? They are
all entombed in the urns and sepulchres of
mortality.,,
What was said about the inevitable and of all mortal beings,
however eminent they may be, is equally true of the affairs
of mortal beings, their disputes and conflicts, their
ventures in the field of love and sport, their achievements
and failures for essentiality they all have a stamp of
mortality on them.
The appeal fails and is dismissed with costs.
Appeal dismissed.
P.H.P.
197