Atlesh Kumar Sharma and Others Vs. Sudesh Rani (Smt.) and Others
EmailAppeal: Civil Appeal No. 1963 of 1982
Petitioner: Atlesh Kumar Sharma and Others
Respondent: Sudesh Rani (Smt.) and Others
Apeal: Civil Appeal No. 1963 of 1982
Judges: B.N. KIRPAL & D.P. MOHAPATRA, JJ.
Date of Judgment: May 01, 1999
Head Note:
SPECIFIC RELIEF
Specific Relief Act, 1963
Section 5 with Civil Procedure Code, 1908 – Section 9 – Suit for possession – Will by testator – Limited right in respect of some properties and absolute right in respect of others – Widow trans-ferring properties under absolute right – Sale challenged on grounds that she had only limited right – Property described properly, even though, village land falling under municipal area – Interpretation of Will – Decree by lower Courts. Held that there was distinction of land situated in municipal area (Quasba) and village land. Conclusion by courts below was wrong.
Specific Relief Act, 1963
Section 5 with Civil Procedure Code, 1908 – Section 9 – Suit for possession – Will by testator – Limited right in respect of some properties and absolute right in respect of others – Widow trans-ferring properties under absolute right – Sale challenged on grounds that she had only limited right – Property described properly, even though, village land falling under municipal area – Interpretation of Will – Decree by lower Courts. Held that there was distinction of land situated in municipal area (Quasba) and village land. Conclusion by courts below was wrong.
Held:
The will, shows that the testator had in mind three types of immovable properties in respect of which he was making the will. These were “properties of Town (quasba) Ghaziabad, (sahrai) agricultural land situated in Village Kaila, Pargana Loni and at Village Ghookna Pargana Loni”. It appears that at the time when the will was made on 24-2-1945, the municipal limits of the town of Ghaziabad had already been extended so as to include Village Kaila within the municipal limits. Notwithstanding this, in the will the testator chose to describe the land in question as being situated in Village Kaila. It is not unknown that the municipal limits may include land which is agricultural. It was nobody’s case that apart from the land in question the testator owned any other land in Village Kaila. According to the sale deed, entire land which had devolved upon Ram Dulari and was situated in Village Kaila, was the subject-matter of sale in favour of Udai Ram. It is clear that the testator had made a distinction between the land situated in Village Kaila and the properties belonging to him in the town (quasba) of Ghaziabad. It is in respect of the properties in Quasba Ghaziabad that a limited interest was given to his widow and it is those properties which could not be alien-ated by her. The courts below did not correctly interpret the will in question and came to a wrong conclusion to the effect that the land which was sold by Ram Dulari was one in respect of which she did not have absolute ownership.(Paras 8 & 9)
JUDGEMENT:
ORDER
1. One Bindravan was the owner of land in Village Kaila. He also owned land in Village Ghookna and in the town of Ghaziabad. The dispute in the present case relates to the land in Village Kaila.
2. The said Bindravan executed a will on 24-2-1945. As per the said will, his second wife Smt. Ram Dulari was given a limited estate in respect of the properties owned by him in the town of Ghaziabad. She was given absolute ownership in respect of the agricultural land situated in the two villages. The relevant portion of the English translation of the will dealing with this is as under:
“That all properties situated at Town (Quasba) Ghaziabad and all ornaments, cash amount and all kinds of loans due to me, Smt. Ram Dulari, wife of the testator will be the owner. She will have all rights of ownership in respect of these properties till her life but the wife of the testator will have no right to sell, or mortgage in any way, the properties of Town (Quasba) Ghaziabad. My (sahrai) agricultural land is situated at Village Kaila, Pargana Loni and at Village Ghookna Pargana Loni. My wife will be absolute owner (malik mustekil) and in possession like me of the agricultural land pertaining to both the villages. Ram Dulari will have right to sell off the land of both the villages and will have a right of ownership like me.”
3. On 1-1-1946, Bindravan died. Thereafter, his widow executed a sale deed on 30-4-1951 in respect of the land in Village Kaila in favour of Udai Ram (Defendant 1 in the suit). The said Udai Ram sold the land in the form of plots some of which were purchased by the appellants herein.
4. On 10-3-1956, Smt. Ram Dulari expired. Thereafter, her sons filed a suit on 6-4-1961 for possession of the land in question which had been sold by Smt. Ram Dulari vide the aforesaid sale deed dated 30-4-1951. The case of the plaintiffs was that in respect of the said land Ram Dulari had only a limited interest and, therefore, alienation made by her was void. The plaintiffs, therefore, prayed for a decree of possession of the said land.
5. The defendants, including the appellants herein, contested the suit and the following issues were framed :
“1. Whether Smt. Ram Dulari was the owner of the suit property and as such entitled to alienate?
2. Is the suit within time?
3. Is the suit barred by Section 41 of the Transfer of Property Act?
4. To what relief, if any, are the plaintiffs entitled?
5. Whether the suit land was sold for legal necessity? If so, its effect?
6. Whether the defendants had made improvements, if so, effect?”
6. The trial court after coming to the conclusion that the suit was within time, decided the material issues in favour of the plaintiffs. It came to the conclusion that Smt. Ram Dulari was a limited owner of the property and she could not confer absolute title on Udai Ram through the sale deed dated 30-4-1951 and a supplementary sale deed which had been executed by her. The appeal filed by the appellants hereinbefore the lower appellant court was unsuccessful. The High Court in the second appeal affirmed the decision of the courts below and came to the conclu-sion that the land in question having become part of the town of Ghaziabad, therefore, this is the land in respect of which Ram Dulari had only a limited estate.
7. Despite service having been effected, the respondents who were the original plaintiffs have chosen not to appear. Mr. Anil Kumar Gupta, learned counsel for the appellants has taken us through the records of the case and has contended that Issue 1 was wrong-ly decided. He submitted that the intention of the testator was very clear, namely, that the village land was to be inherited by the testator’s widow absolutely and, therefore, she had the right to sell the same to Udai Ram.
8. In these cases, one has to see what was the intention of the testator. The will, English translation of which has been placed before the Court, shows that the testator had in mind three types of immovable properties in respect of which he was making the will. These were “properties of Town (quasba) Ghaziabad, (sahrai) agricultural land situated in Village Kaila, Pargana Loni and at Village Ghookna Pargana Loni”. It appears that at the time when the will was made on 24-2-1945, the municipal limits of the town of Ghaziabad had already been extended so as to include Village Kaila within the municipal limits. Notwithstanding this, in the will the testator chose to describe the land in question as being situated in Village Kaila. It is not unknown that the municipal limits may include land which is agricultural. It was nobody’s case that apart from the land in question the testator owned any other land in Village Kaila. According to the sale deed, entire land which had devolved upon Ram Dulari and was situated in Village Kaila, was the subject-matter of sale in favour of Udai Ram. It is clear that the testator had made a distinction between the land situated in Village Kaila and the properties belonging to him in the town (quasba) of Ghaziabad. It is in respect of the properties in Quasba Ghaziabad that a limited interest was given to his widow and it is those properties which could not be alien-ated by her.
9. In our opinion, the courts below did not correctly interpret the will in question and came to a wrong conclusion to the effect that the land which was sold by Ram Dulari was one in respect of which she did not have absolute ownership. Issue 1, in our opin-ion, should have been decided in favour of the defendants includ-ing the appellants herein. For the view which we are taking, it is not necessary for us to decide the other issues which are raised including one pertaining to limitation.
10. For the aforesaid reasons, the appeal is allowed and the judgment and decree of the courts below is set aside, effect of which would be that the suit filed by the plaintiffs would stand dismissed.
11. No costs.
1. One Bindravan was the owner of land in Village Kaila. He also owned land in Village Ghookna and in the town of Ghaziabad. The dispute in the present case relates to the land in Village Kaila.
2. The said Bindravan executed a will on 24-2-1945. As per the said will, his second wife Smt. Ram Dulari was given a limited estate in respect of the properties owned by him in the town of Ghaziabad. She was given absolute ownership in respect of the agricultural land situated in the two villages. The relevant portion of the English translation of the will dealing with this is as under:
“That all properties situated at Town (Quasba) Ghaziabad and all ornaments, cash amount and all kinds of loans due to me, Smt. Ram Dulari, wife of the testator will be the owner. She will have all rights of ownership in respect of these properties till her life but the wife of the testator will have no right to sell, or mortgage in any way, the properties of Town (Quasba) Ghaziabad. My (sahrai) agricultural land is situated at Village Kaila, Pargana Loni and at Village Ghookna Pargana Loni. My wife will be absolute owner (malik mustekil) and in possession like me of the agricultural land pertaining to both the villages. Ram Dulari will have right to sell off the land of both the villages and will have a right of ownership like me.”
3. On 1-1-1946, Bindravan died. Thereafter, his widow executed a sale deed on 30-4-1951 in respect of the land in Village Kaila in favour of Udai Ram (Defendant 1 in the suit). The said Udai Ram sold the land in the form of plots some of which were purchased by the appellants herein.
4. On 10-3-1956, Smt. Ram Dulari expired. Thereafter, her sons filed a suit on 6-4-1961 for possession of the land in question which had been sold by Smt. Ram Dulari vide the aforesaid sale deed dated 30-4-1951. The case of the plaintiffs was that in respect of the said land Ram Dulari had only a limited interest and, therefore, alienation made by her was void. The plaintiffs, therefore, prayed for a decree of possession of the said land.
5. The defendants, including the appellants herein, contested the suit and the following issues were framed :
“1. Whether Smt. Ram Dulari was the owner of the suit property and as such entitled to alienate?
2. Is the suit within time?
3. Is the suit barred by Section 41 of the Transfer of Property Act?
4. To what relief, if any, are the plaintiffs entitled?
5. Whether the suit land was sold for legal necessity? If so, its effect?
6. Whether the defendants had made improvements, if so, effect?”
6. The trial court after coming to the conclusion that the suit was within time, decided the material issues in favour of the plaintiffs. It came to the conclusion that Smt. Ram Dulari was a limited owner of the property and she could not confer absolute title on Udai Ram through the sale deed dated 30-4-1951 and a supplementary sale deed which had been executed by her. The appeal filed by the appellants hereinbefore the lower appellant court was unsuccessful. The High Court in the second appeal affirmed the decision of the courts below and came to the conclu-sion that the land in question having become part of the town of Ghaziabad, therefore, this is the land in respect of which Ram Dulari had only a limited estate.
7. Despite service having been effected, the respondents who were the original plaintiffs have chosen not to appear. Mr. Anil Kumar Gupta, learned counsel for the appellants has taken us through the records of the case and has contended that Issue 1 was wrong-ly decided. He submitted that the intention of the testator was very clear, namely, that the village land was to be inherited by the testator’s widow absolutely and, therefore, she had the right to sell the same to Udai Ram.
8. In these cases, one has to see what was the intention of the testator. The will, English translation of which has been placed before the Court, shows that the testator had in mind three types of immovable properties in respect of which he was making the will. These were “properties of Town (quasba) Ghaziabad, (sahrai) agricultural land situated in Village Kaila, Pargana Loni and at Village Ghookna Pargana Loni”. It appears that at the time when the will was made on 24-2-1945, the municipal limits of the town of Ghaziabad had already been extended so as to include Village Kaila within the municipal limits. Notwithstanding this, in the will the testator chose to describe the land in question as being situated in Village Kaila. It is not unknown that the municipal limits may include land which is agricultural. It was nobody’s case that apart from the land in question the testator owned any other land in Village Kaila. According to the sale deed, entire land which had devolved upon Ram Dulari and was situated in Village Kaila, was the subject-matter of sale in favour of Udai Ram. It is clear that the testator had made a distinction between the land situated in Village Kaila and the properties belonging to him in the town (quasba) of Ghaziabad. It is in respect of the properties in Quasba Ghaziabad that a limited interest was given to his widow and it is those properties which could not be alien-ated by her.
9. In our opinion, the courts below did not correctly interpret the will in question and came to a wrong conclusion to the effect that the land which was sold by Ram Dulari was one in respect of which she did not have absolute ownership. Issue 1, in our opin-ion, should have been decided in favour of the defendants includ-ing the appellants herein. For the view which we are taking, it is not necessary for us to decide the other issues which are raised including one pertaining to limitation.
10. For the aforesaid reasons, the appeal is allowed and the judgment and decree of the courts below is set aside, effect of which would be that the suit filed by the plaintiffs would stand dismissed.
11. No costs.
