BHURA AND ORS.versusKASHIRAM

A                               BHURA AND ORS.
                                      v.
                                  KASHIRAM

                                 JANUARY 5, 1994

B                  [R.M. SARAI AND DR. A.S. ANAND, JJ.)

         M.P. Abolition of Proprietary Rights (Es~ates, Mahals, Alienated
    Lands) Act, 1950: S.38-Limited estate-Enlargement into absoli.te estate-          ~

    Pennissibility of-Transfer of such property-Validity of.
c         Hindu Succession Act, 1956: S.14(2}-Father bequeathing certain sir
    lands and house to his daughte~imited estate-Whether could be enlarged
    into absolute estate.                                                                    ,-
                                                                                             !{;:
          Will-l'rinciples of Construction-Intention of testator to be detennined
D   by reading the will as a whole.
                                                                                      ~
           One 'P' executed a will in favour of his daughter 'S' bequeathing
    certain sir lands and a house to her. On the death of the testator the said
    'S' transferred the property to the defendants, by way of a gift deed. The
    testator's adopted son filed a suit claiming that the will. created only a life
E   interest in favour of 'S' in the property and so the transfer made by her
    was not binding on him beyond her lifetime and that he was entitled to be
    put in possession of the said property, as the exclusive owner after the
    death of 'S'. The suit was dismissed. The defendants preferred an appeal
    before the High Court and with the permission of the Court raised an
    additional plea that the suit land being sir land, had vested in the state on
F
    the coming into force of the M.P. Abolition Act and by virtue of S. 38
    thereof 'S' who was in possession of the suit property on the date of the
    Abolition Act, derived the absolute, heritable and transferable title in her,
    independent of the will.

G         Aggrieved by the High Court's judgment, the original plaintiff
    preferred the present appeal.
                                                                                      ,>.-
          Dismissing the appeal, this court

          HELD : 1.1. In the will the testator after narrating the description
H   of the property had stated that he was executing the will so that no dispute
                                         16
                          BHURA v. KASHIRAM                                17

arises between his adopted son and daughter 'S' after his death. The entire A
will though not happily worded, does bring out his intention. It is settled
law that the courts must make all efforts to determine the real intention
of the testator by reading the will as a whole and giving effect to the
intentions ofthe testator. Construction, which would advance the intention
of the testator has to be preferred and as far as possible effect is required B
to be given to every disposition contained in the will, unless the law
prevents such effect being given to it. [19-G-H; 20-C-D]

      1.2. The bequeath in favour of 'S' clearly speaks of the testator's
intention of only creating a life interest in her and nothing more and the
various expressions used therein are indicative of and are reconcilable only    C
with the hypothesis that the testator was creating an estate in favour of 'S'
only for her life time and not an absolute estate. Therefore, under will 'S'
did not get more than a life time estate because the language of the will is
inconsistent with her having got an absolute right over the land. [20-F, G]

      2. Section 14(2) of the Hindu Succession Act, 1956 mandates that D
nothing contained !n sub-section 1 of Section 14 shall apply to any property
acquired by way of gift or under a will or by any other instrument
prescribing a restricted right in such property. Since the will itself
prescribed a restricted right of life-estate in the property in favour of 'S'
that estate could not be enlarged into an absolute estate in view of the E
express provisions of the Hindu Succession Act, 1956. [21-A, B]

      3. 'S' continued to retain possession of the Sir land not under any
fresh grant under the provisions of the M.P. Abolition Act but was already
in possession of the said land as a limited owner under the will. On a true
construction of the will, the High Court was right in holding that 'S' had      F
only a limited estate in the suit land and, therefore, the alienations made
by her in favour of defendant Nos. 2 to 9, were not binding on the appellant,
after her death. [21-D-F]

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1690 of G
1984.

     From the Judgment and Order dated 22.8.1980 of the Madhya
Pradesh High Court in F.A. No. 233 of 1976.

        S.K. Gambhir for the Appellants.                                        H
    18                     SUPREME COURT REPORTS                 [1994) 1 S.C.R.

A            V.A. Bobde and Shyam Mudaliar for AK. Sanghi for the Respon-
     dent.

             The Judgment of the Court was delivered by

           DR. ANAND, J. 1. This appeal by special leave is directed against
B   the Judgment and Decree of the High Court of Madhya Pradesh dated 22,
    August, 1980 made in First Appeal No.233 of 1977 setting aside the
    Judgment and Decree of the trial court and decreeing the suit of the
    plaintiff/respondent.

             2. The only controversy between the parties which was contested
C both before the trial court and the High Court was whether the will Exhibit
    P-4 conferred only a limited estate or an absolute estate on Sarjabai in so
    far as the suit property is concerned. The learned District Judge held that
    the estate which was bequeathed by Pancham to Defendant No.1 Sarjabai
    gave her an absolute rightthereto and consequently except on the question
D   of adoption, ~he suit filed by the plaintiff-respondent was dismissed with
    costs.

             BRIEF FACTS

             3. Tula Ram was the common ancestor of the parties, He had a son
E by name Pancham, who died on 6.8.1926. Pancham had 3 wives by name
    Smt. Punji, Smt. Kaushalya and Smt. Sarupa. Sarjabai, Defendant No.1 was
    the daughter of Smt. Punji, while Gopi Chand @ Korat was adopted as a
    son by Smt. Kaushalya and Pancham. Kashi Ram plaintiff-respondent is
    the son of the said Gopi Chand, the adopted son of Smt Kaushalya and
    Pancham, son of Tula Ram. According to the pleadings of the parties,
F Pancham executed a will on 16.5.1907 in favour of Sarjabai, whereby he
    bequeathed certain sir lands and a house to her. Gopi Chand died _leaving
    behind Kashi Ram as his son. On the death of Pancham. Sarjabai, the
    daughter of Pancham through Smt. Punji, who was in possession
                                                               ..... of the suit
    property, as a legatee under the will of Pancham, made a gift of the suit
G land and the house in favour of Defendant Nos.2 to 10 (Defendant No.3 is
    since dead) on 28.10.1971 as trustees of Gadhekar Tapti Dharamshala,
    Multai. The plaintiff-respondent thereupon filed a suit claiming that the
  · will dated 16.5.1907 (Ex.P-4) created only a life interest in favour of
    Sarjabai in the property bequeathed thereunder and, therefore, the transfer
    made by her through the gift deed dated 28.10.1971 was not binding on
H him beyond the life time of Sarjabai and that he was entitled to be put in
                BHURA v. KASHIRAM [DR.ANAND,J.]                          19

possession of that property, after her death, as an exclusive owner of the A
said property. The defence of defendants 2 to 9 on 'the other hand was that
the will (Ex.P-4) conferred .an ab.solute estate on Sarjabai and therefore
she was competent to alienate the suit property absolutely and the transfer
by sale in their favour was valid. The trial court found in favour of
defendant 2 to 9 and dismissed the suit. The defendants filed ·an appeal
and at that stage, with the permission of the court, amended their written B
statements in the High Court and raised an additional plea that the suit
land being sir had vested in the State on the coming into force of the
Ma,dhya Pradesh Abolition of Proprietary Rights (Estates, Mahals.
Alienated Lands) Act, 1950 (hereinafter the Abolition Act) and, that
Malik-Makbuza rights had been conferred on her by virtue of Section 38 C
of the Act since she had been in possession of the suit property on the date
of the Abolition Act, and therefore the grant in her favour which was
independent of the will conferred an absolute heritable and transferable
title in her.

      4. That the lands in question were sir in nature and were in the D
possesstion of Sarjabai at the time of the coming into force of the Abolition
Act, and that Gopi Chand was th.e duly adopted son of Pancham and
Kaushalya were not disputed before the High Court. It is in the background
of these admitted facts that the controversy as noticed in the earlier part
of this judgment is required to be resolved by us as that alone is the
question at issue in the case.                                                E
      5. Learned counsel for the respondent has produced before us a
translated version of the will (Ex.P-4), the correctness of which has not
been doubted by the opposite side. It is the construction of the will which
will determine the controversy as raised before the courts below and
agitated before us. ·                                                         F

      6. In the will (Ex.P-4) (Annexure-III), Pancham Patel after narrating
the description of the property and stating that he was executing the will
so that no dispute arises between his adopted son and daughter, Sarjabai
after his death, went on to record : .
                                                                              G
        "It is, therefore, established that there should not arise any
        dispute between my adopted son and daughter Sarjabai,
        after my death, for this purpose. I execute this will, as I
        am writing below, according to it, they would be entitled
        to get property, if my daughter Sarjabai bears a child, he            H
                BHURA v. KASHIRAM [DR. ANAND, J.)                         21

could not even be enlarged into an absolute estate under the Hindu A
Succession Act, 1956, even though she was possessed of that property at
the time of the coming into force of the Hindu Succession Act, 1956.
Section 14(2) of the Act mandates that nothing contained in Sub-section 1
of Section 14 of the Hindu Succession Act, 1956 shall apply to any property
acquired by way of gift or under a will or by any other instrument prescrib- B
ing a restricted right in such property. In view of our finding that the will
(Ex.P4) itself prescribed a restricted right of life-estate in the property in
favour of Sarjabai, that estate could not be enlarged into an absolute estate
in view of the express provisions of the Hindu Succession Act, 1956.

       8. The High Court also dealt with and considered the contention C
raised for the first time before it by the appellant that the conferral of
malik-makbuza rights under Section 38 of the Abolition Act upon Sarjabai
amounted to. a fresh and independent grant to her of the suit land. After
referring to various provisions of the Abolition Act, the High Court came
to the conclusion, on the facts of this case, that notwithstanding the above D
provisions, factually Sarjabai had continued to retain possession of the sir
land (land in the suit) not under any fresh grant under the provisions of
the Abolition Act but since she was already in possession of the said land
as a limited owner, under the will (Ex.P4). We are in complete agreement
with the reasoning of the High Court on this aspect and need not dwell on
it any further.                                                              E

      9. On a true construction of the will, (Ex.P4), and in the established
facts and circumstance of the case, we are satisfied that the High Court
was right in holding that Sarjabai had only a limited estate in the suit land
and, therefore, the alienations made by her in favour of defendant Nos. 2       p
to 9, were not binding on the appellant, after the death of Sarjabai. The
possession of Sarjabai, at the time of the coming into force of the Abolition
Act, being only on the basis of the will (Ex.P4), the High Court rightly set
aside the judgment and decree of the trial court and directed that since
Sarjabai had died that had brought to an end her limited rights, and
therefore the transferees, Respondents 2 to 9, should put the plaintiff-ap-     G
pellant in possession of the suit land. We uphold the finding of the High
Court. There is, no merit in this appeal which is accordingly dismissed but
with no order as to costs.

G.N.                                                      Appeal dismissed.