The Brahma Vart Sanatan Vs. Kanhyalal Bagla and Ors.
EmailAppeal: Civil Appeal No. 916 of 1984
(From the Judgment and Order dated 18.11.83 of the Allahabad High Court in F.A.No. 276 of 1967)
(From the Judgment and Order dated 18.11.83 of the Allahabad High Court in F.A.No. 276 of 1967)
Petitioner: The Brahma Vart Sanatan
Respondent: Kanhyalal Bagla and Ors.
Apeal: Civil Appeal No. 916 of 1984
(From the Judgment and Order dated 18.11.83 of the Allahabad High Court in F.A.No. 276 of 1967)
(From the Judgment and Order dated 18.11.83 of the Allahabad High Court in F.A.No. 276 of 1967)
Judges: M.B. SHAH & R.P. SETHI, JJ.
Date of Judgment: Sep 25, 2001
Appearances:
Mr. V.K.S. Chaudhary, Mr. Shibsankar Sarkar, Senior Advocates, Mr. Gopishyam Nigam, Mr. Anish Kumar Gupta, Mr. Shirish Kumar Mishra, Mr. S.S. Khanduja, Mr. P.K. Chakravarti, Mr. Sallauddin, Mr. A.S. Bhasme, Mr. Saurabh Mishra, Mr. Manoj Kumar Mishra, Mr. Sanjay Kumar Visen and Mr. N.S. Bishts, Advocates with them for the appearing parties.
Head Note:
SUCCESSION
Hindu Succession Act, 1956
a) Section 14 – Succession to property – Right of Hindu female – Limited estate versus full ownership – When limited estate becomes full ownership – ‘B’ owning considerable properties executing a will in favour of ‘D’ his third wife – Couple not having any child – After the death of her husband ‘D’ adopting first plaintiff as son and executing adoption deed – Adopted minor son through guardian filing suit against adopted mother claiming possession over the properties – Suit decreed by trial court but High Court setting aside the decree and holding that first plaintiff had no right to obtain possession – Thereafter ‘D’ executing a Will, settlement deed and also a gift deed in favour of different persons (defendants in the present case) in respect of the properties she inherited from her deceased husband – After death of ‘D’ first plaintiff allegedly selling seven annas share in the disputed properties to second plaintiff – Both plaintiffs filing a suit for possession of the properties and declaration that the will, settlement deed and gift deed executed by ‘D’ were void and plaintiffs were the owners of the properties – Trial court holding in favour of the plaintiffs and decreeing the suit – High Court while confirming the decree holding that in view of previous litigation principle of res judicata applied and therefore it was not open for the court to adjudge the same again – Court also holding that ‘D’ would not get benefit of section 14(1) of 1956 Act – On appeal. Held, the Will executed by the husband of ‘D’ clearly and unambiguously conveyed absolute ownership in respect of properties bequeathed. In any case after the death of her husband, ‘D’ had life interest even without a will being executed in her favour and in view of section 14(1) of the 1956 Act she was the absolute owner of the properties. Exception provided under section 14(2) not applicable in such cases. Therefore, the suit by the plaintiffs not being maintainable the decree passed by the trial court and confirmed by High Court quashed and set aside.
Held:
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 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. (Para 12)
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 v. Thota Manikyamma (Dead) By LRs. ((1991) 4 SCC 312). (Para 22)
Same view is taken in Beni Bai (Smt.) v. Reghubir 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. (Para 23)
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. (Para 24)
Cases Reffered:
1. Sajjadanashin Sayed MD. B.E. EDR. (D) LRs. v. Musa Dadabhai Ummer and others (2000 (3) SCC 350) (Para 20)
2. Beni Bai (Smt.) v. Reghubir Prasad ((1999) 3 SCC 234) (Para 23)
3. Thota Sesharathamma and Another v. Thota Manikyamma (Dead) By LRs. ((1991) 4 SCC 312) (Para 22)
4. Re. : Pearey Lal v. Rameshwar Das ((1963) Supp. 2 SCR 834) (Para 11)
5. Durgi v. Kanhaiya Lal AIR 1927 Allahabad 387 (Para 13)
2. Beni Bai (Smt.) v. Reghubir Prasad ((1999) 3 SCC 234) (Para 23)
3. Thota Sesharathamma and Another v. Thota Manikyamma (Dead) By LRs. ((1991) 4 SCC 312) (Para 22)
4. Re. : Pearey Lal v. Rameshwar Das ((1963) Supp. 2 SCR 834) (Para 11)
5. Durgi v. Kanhaiya Lal AIR 1927 Allahabad 387 (Para 13)
JUDGEMENT:
Shah, J.
1. 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.
2. After dismissing the appeal, the High Court vide its order dated 18th November, 1983 granted certificate of leave to appeal to this court.
3. 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 1st 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.”
4. 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 plaint. On 31.10.1958 she executed a settlement deed (E.X.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.
5. 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 Bagal 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 of 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.
6. 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 was-“as 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.
7. 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? an,
(c) What is barred by res judicata?
8. 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 Agrawal previously r/o Bhivani, District Hissar and at present residing in city of Kanpur and provided as under :-
Thirdly- All 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.
Fourthly- She 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) bud during the life time of the lady, the adopted son will have no rights.”
9. 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.
10. 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.
11. 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).
12. 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 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 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.
13. 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 :-
“I ‘he document is called a will be the testator himself. We have no doubt in our mind that it was not merely an ordinary Hindu widow’s 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.”
14. 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 was intended to be created in favour of the window.”
15. 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.
16. 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.
17. 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?”
18. 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?”
19. The High Court, therefore, held that in the previous proceedings, the court was called upon to decide defendant’s (Mst. Durgi’s) 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 plea that the observations of the High Court in earlier proceedings were mere obiter dicta and consequently not binding.
20. 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) LRs. v. 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 re 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.”
21. 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. Salic 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.”
22. 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 v. 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 proviso or an execution 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.”
23. Same view is taken in Beni Bai (Smt.) v. Reghubir 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.
24. 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.
1. 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.
2. After dismissing the appeal, the High Court vide its order dated 18th November, 1983 granted certificate of leave to appeal to this court.
3. 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 1st 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.”
4. 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 plaint. On 31.10.1958 she executed a settlement deed (E.X.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.
5. 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 Bagal 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 of 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.
6. 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 was-“as 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.
7. 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? an,
(c) What is barred by res judicata?
8. 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 Agrawal previously r/o Bhivani, District Hissar and at present residing in city of Kanpur and provided as under :-
Thirdly- All 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.
Fourthly- She 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) bud during the life time of the lady, the adopted son will have no rights.”
9. 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.
10. 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.
11. 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).
12. 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 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 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.
13. 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 :-
“I ‘he document is called a will be the testator himself. We have no doubt in our mind that it was not merely an ordinary Hindu widow’s 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.”
14. 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 was intended to be created in favour of the window.”
15. 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.
16. 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.
17. 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?”
18. 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?”
19. The High Court, therefore, held that in the previous proceedings, the court was called upon to decide defendant’s (Mst. Durgi’s) 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 plea that the observations of the High Court in earlier proceedings were mere obiter dicta and consequently not binding.
20. 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) LRs. v. 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 re 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.”
21. 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. Salic 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.”
22. 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 v. 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 proviso or an execution 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.”
23. Same view is taken in Beni Bai (Smt.) v. Reghubir 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.
24. 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.
