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CASE NO.: Appeal (civil)  1257 of 1999

PETITIONER: Commissioner, Jalandhar Division & Others

RESPONDENT: Mohan Krishan Abrol & Another

DATE OF JUDGMENT: 02/04/2004

BENCH: CJI.V.N. KHARE & S.H. KAPADIA.

JUDGMENT: J U D G M E N T

WITH  

CIVIL APPEAL No.1265 OF 1999.

Mohan Krishan Abrol                              

Versus

State of Punjab          

KAPADIA, J.

       Both the above civil appeals raise common question  of law and fact and, therefore, they are disposed of by this  common judgment.  For the sake of convenience, facts in  Civil Appeal No.1257 of 1999 are mentioned hereinbelow.

       Late Sardarni Chanan Kaur widow of Sardar Triloki  Nath Singh (deceased) was the owner of a kothi and lands  admeasuring 90 kanals bearing khasra No.4971 situated at  Circular Road, Kapurthala (hereinafter referred to for the  sake of brevity as "the said property").  It is not in dispute  that late Sardarni Chanan Kaur was the owner of the said  property and that she had executed a registered will on  15.9.1962, whereby she bequeathed the said property to the  State Government through Randhir Jagjit Hospital,  Kapurthala (hereinafter referred to for short as "the said  Hospital).  The bequeath in respect of the said property was  made vide paragraph 2 of the will which is reproduced  herein below:\027 "I bequeath my bungalow situated at Circular  Road, Kapurthala, known as kothi "S. Tirloki  Nath Singh" to Randhir Jagjit Hospital,  Kapurthala, absolutely and for ever for the use  of as a ward of the Hospital patients as and this  estate should not be used or utilized for any  other purpose than described above.  Area of  the property is 90 kanals, Khewat No.1/180,  Khasra No.4971, consists of 4 servant quarters,  2 garages, 2 kothries, langarkhana with  verandah, 2 kothries, one dalan, 2 kothries,  maweshikhana, 6 kothries, 2 dalans, pacca well  with iron persion well fitted, garden orchard,  cultivated lands surmounted by on North,  Government landed property south road, East

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Garden Diwan Ahudhya Dass \026 West, landed  property will not be sold or mortgaged or  disposed off in any other way.  This property  will remain in the name of my late husband S.  Triloki Nath Singh, for the maintenance and  improvement of this institution.   The income  derived from this garden, landed properties etc.  should be used on the up-keep and maintenance  and improvement."

       In the will aforestated, the testatrix appointed three  executors.  On the basis of the above will, mutation  no.3597 was made on 20.4.1970 in favour of the said  Hospital.  On 15.6.1977, the said Hospital moved an  application before the Collector, Kapurthala under sections  4 and 5 of Punjab Public Premises and Land (Eviction and  Rent Recovery) Act, 1973 (hereinafter referred to as "the  1973 Act") for eviction of Mohan Krishan Abrol,  respondent no.1 herein, who was alleged to be an  unauthorized occupant of the said property.  In the  meantime, the said respondent instituted a title suit on  2.11.1977 stating that the testatrix had executed a registered  lease deed dated 7.6.1962 in his favour and he was the  lessee in continuous possession and after the demise of the  testatrix on 26.11.1962, he was a tenant in law and under  her legal representatives.  In the said suit, respondent no.1  alleged that the state government has no connection with  the property in dispute as the will was not probated and had  not been acted upon.  In the said suit, respondent no.1  herein sought a declaration that the state government was  not the owner of the said property.  He also challenged the  genuiness of the above will and prayed for perpetual  injunction against the government from taking possession  of the said property under the provisions of the 1973 Act.    In the said suit, the government submitted that the  proceedings for eviction of respondent no.1 from the  property were pending before the competent authority  under the 1973 Act and, therefore, the suit was barred  under sections 10 and 15.  It was also pleaded that  respondent no.1 herein had no locus standi to challenge its  title as the said respondent was a lessee under the lease  which stood expired on 7.6.1972.   

       At this stage, it may be noted that on 25.10.1978, the  competent authority found that the property had vested in  the said Hospital; that the said property was a public  premises under the 1973 Act; that the ownership of the  property stood transferred to the Hospital under the will of  Smt. Chanan Kaur; that the first respondent herein was a  lessee under lease dated 7.6.1962; that the lease was for 10  years; and on expiry of the lease on 7.6.1972, respondent  no.1 was a trespasser.   The competent authority further  found that the lease was not renewed.  Accordingly, the  impugned order of eviction was passed by the competent  authority against respondent no.1 declaring him to be  unauthorized occupant of the premises.  Being aggrieved  by the order of eviction, respondent no.1 preferred appeal  to the Commissioner under section 9 of the 1973 Act.  By  judgment and order dated 8.5.1984, the appeal was  dismissed.   

       During this period, the title suit instituted by  respondent no.1 being suit no.124 of 1977 came to be  decreed on 15.1.1979 by Senior Sub Judge, Kapurthala

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who took the view that respondent no.1 was a lessee and he  was entitled to maintain the said suit.  The trial Court  further held that on the death of testatrix on 26.11.1962, the  said property vested in the executors and not in the State  and, therefore, the proceedings under the 1973 Act were  not maintainable. Being aggrieved, the government  preferred Civil Appeal No.29 of 1979 before the lower  appellate court which found that respondent no.1 had no  locus standi to bring the title suit; that the State was a  beneficiary under the will and on the death of the testatrix,  the said property had vested in the State as a legatee to  which respondent no.1 cannot raise any objection as he had  no right to challenge the title of the legatee under the will.   The lower appellate Court further found that the executors  of the will had never objected to the vesting of the property  in the State and the executors never came forward with any  objection to such vesting even after the demise of the  testatrix and, therefore, by their conduct, the executors had  assented to the perfection of the title in the State.  It was  held that as between respondent no.1 herein and the  appellant, no question of title was involved and the only  question was whether respondent no.1 was in authorized  possession of the property as claimed by him and since no  question of title was involved, the Civil Court had no  jurisdiction to decree the suit.  Accordingly, the lower  appellate Court dismissed the suit filed by respondent no.1  on 26.4.1983.

       Aggrieved by the order of eviction passed under the  1973 Act and by the dismissal of the suit by the lower  appellate Court, respondent no.1 herein approached the  High Court by Civil Writ Petition No.2959 of 1984 and by  Regular Second Appeal No.1263 of 1983 respectively.   Both the proceedings were tagged together and by common  impugned judgment, the High Court came to the conclusion  that the said property did not vest in the said Hospital in  terms of the clause 2 of the will under which the property  vested in the executors who were required to maintain a  ward in the above hospital from the income arising out of  the garden and other landed properties of the testatrix.  The  High Court further found that the said Hospital was only a  beneficiary under clause 2 of the will and since under  section 211 of the Indian Succession Act, 1925 (hereinafter  referred to as "the 1925 Act), the property had vested in the  executors, the eviction proceedings under the 1973 Act  were not maintainable.  However, in view of section 15 of  the 1973 Act, the High Court held that the suit filed by  respondent no.1 was not maintainable and consequently,  the High Court dismissed the second appeal preferred by  respondent no.1 herein while it allowed Civil Writ Petition  No.2959 of 1984 filed by respondent no.1 and accordingly  set aside the order of eviction passed under the 1973 Act.  Aggrieved, both sides have come by way of civil appeals to  this Court.  

       Mr. H.M. Singh, learned counsel for the appellant  submitted that the only question which arises for  determination is \026 whether the said property vested in the  executors on the death of the testatrix and not as to whether  the executors were required to obtain a probate.  In this  connection it was urged that under section 211, the property  vests in the executors by virtue of the will and not by virtue  of the probate.  On the demise of the testatrix, the property  vested in the executors.  According to the learned advocate,  the word ’vesting’ in section 211 was only for the purposes

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of representation and it did not refer to vesting of beneficial  interest in the property in the executors.  Learned counsel  submitted that under the will, the said property was  bequeathed to the hospital.  It was the desire of the testatrix  that the said property shall be used as a ward in the hospital  in the name of her late husband.  While interpreting the  will, it was urged, that the Court must sit in the armchair of  the testatrix and the said will has to be interpreted in the  light of her desire expressed therein.  It was urged that the  High Court had erred in holding that the ownership of the  demised premises did not vest in the said Hospital; that the  said Hospital was only a beneficiary under the will and,  therefore, the said demised property did not constitute  public premises under section 2(e) of the 1973 Act.  It was  urged that a bare reading of clause 2 of the will shows that  the said property was bequeathed absolutely in favour of  the said Hospital so that a ward could be set up in that  hospital in the name of the deceased husband of the  testatrix.  It was next contended that even assuming for the  sake of argument that the above finding of the High Court  was correct, learned counsel submitted that the words  "public premises" used in section 2(e) of the 1973 Act have  been defined to mean inter alia as the premises belonging  to the State Government.  It was urged that the words  ’belonging to’ should be read in the widest possible sense  and if so read they would include beneficial interest in the  property in favour of the State Government and  consequently, the property in dispute would fall in the  category of public premises under the 1973 Act.  Learned  advocate for the appellant next urged that on 7.6.1962, the  deceased Smt. Chanan Kaur had let out the said property on  lease to respondent No.1 herein for ten years and the lease  expired on 7.6.1972; that there was no renewal of the said  lease and, therefore, respondent No.1 was in wrongful and  illegal use and occupation of the said property, in the nature  of unauthorized occupation after 7.6.1972, and, therefore,  the eviction proceedings were maintainable under the 1973  Act.  It was urged that the High Court was right in  dismissing the suit filed by respondent No.1 in view of  section 15 of the 1973 Act.                   Per contra, Shri Ranjit Kumar, learned senior counsel  appearing on behalf of respondent No. 1 submitted that  clause 2 of the said will refers to bequest in favour of the  said Hospital only for the specific use of the property as a  ward and, therefore, the said Hospital was only a  beneficiary under the will and not the owner and, therefore,  the eviction proceedings under the 1973 Act were not  maintainable.  It was contended that a bare perusal of  clause 2 of the will shows that a limited right in the  property was bequeathed to the hospital.  In this  connection, it was further contended that the last sentence  of clause 2 of the will indicates that the said property was  to be maintained out of the income from the landed  property of the testatrix, which circumstance shows that the  hospital was only a beneficiary.  It was urged that mutation  of the property in the name of the appellant in the revenue  records did not confer title on it.  Alternatively, it was  submitted that the matter refers to complicated questions of  title and, therefore, the matter was not triable under the  provisions of the 1973 Act.  Learned counsel for  respondent No.1 next contended that in the present case the  lease was executed on 7.6.1962 by the constituted Attorney  of Smt. Chanan Kaur (testatrix) for ten years and under the  lease respondent No.1 could make constructions, and

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pursuant thereto, respondent No.1 had constructed a  factory.  Under clause 8, it was urged that the right of  renewal was given to respondent No.1.  In this connection,  it was urged that correspondence had taken place in 1972  between the parties and by letter dated 22nd May 1972,  respondent No.1 had sought renewal of the lease.  It was  contended that request for renewal was made both to the  executors as well as to the appellant to which neither  replied.  It was submitted that in any event, clause 8  provided for automatic renewal and, therefore, there was no  need to make an application for renewal.  In the  circumstances, it was urged that respondent no.1 cannot be  said to be in unauthorized occupation of the property. It  was contended that respondent No. 1 had leasehold rights  in the property prior to the will and even prior to the demise  of the testatrix and consequently, the suit filed by  respondent No.1 in the civil court was maintainable and the  lower appellate court had erred in holding that respondent  No.1 had no locus standi to challenge the title of the State.   It was submitted that the said property was subject to lease  executed before the will coupled with automatic renewal  and, therefore, the possession of the property on expiry of  the lease cannot be termed as unauthorized under the 1973  Act.  In the circumstances, the High Court was right in  coming to the conclusion that respondent No.1 cannot be  said to be in unauthorized occupation of the premises.    Lastly, it was urged on behalf of respondent No.1 that  under section 211 of the 1925 Act, the will which is not  probated cannot confer title on the legatee.  He submitted  that in the present case, the executors had applied for  probate which was refused.  It was urged that under section  211 read with section 213 of the 1925 Act, the said  property had vested in the executors and not in the State  and in the absence of probate/letters of administration, the  State had no right to administer the estate of the deceased  testatrix, including right of action under the 1973 Act.   

The first point which arises for determination is \026  whether the said Hospital was the owner or the beneficiary  in terms of clause 2 of the will?  Clause 2 of the will  unequivocally states that the testatrix bequeaths her  bungalow to the said Hospital absolutely and forever.  The  very first sentence of clause 2 indicates that a complete  bequest was made in favour of the said Hospital which was  to operate for all times in future.  Further clause 2 stipulates  that the property was to be used as a ward of the hospital  and for no other purpose.  Section 87 of the 1925 Act  stipulates that intention of the testator shall be effectuated  as far as possible.  In the matter of interpretation of wills,  the Court has to look at the wishes of the testator indicated  therein.  In the present case, the testatrix wanted her  bungalow to be bequeathed for all times to the government  hospital and she wanted it to be used as a ward of the  hospital to be named after her late husband.  She further  directed that the income derived from the surrounding  garden and her landed properties should be used for  maintenance and improvement so that in future the  continuity of the said ward in the hospital is not adversely  affected for want of funds.  In our view, the High Court  erred in holding that the said Hospital was a beneficiary  and not the owner.  In the circumstances, the said property  constituted public premises under section 2(e) of the 1973  Act.  It was however urged on behalf of respondent No. 1  that the said property did not vest in the appellant; that

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under section 211 of the 1925 Act, it had vested in the  executors who had applied for probate but which was  refused by the testamentary court, and, therefore, the said  property never vested in the appellant.  We do not find any  merit in this argument.  Sections 211 and 213 of 1925 Act  read as follows:\027 "Section 211.\027Character and property of  executor or administration as such.\027(1) The  executor or administrator, as the case may be,  of a deceased person is his legal representative  for all purposes, and all the property of the  deceased person vests in him as such.

(2) When the deceased was a Hindu,  Muhammadan, Buddhist, Sikh, Jaina or Parsi or  an exempted person, nothing herein contained  shall vest in an executor or administrator any  property of the deceased person which would  otherwise have passed by survivorship to some  other person.

Section 213.\027 Right as executor or legatee  when established.\027(1) No right as executor or  legatee can be established in any Court of  Justice, unless a Court of competent  jurisdiction in India has granted probate of the  Will under which the right is claimed, or has  granted letters of administration with the Will  or with a copy of an authenticated copy of the  Will annexed.  

(2)  This section shall not apply in the case of  Wills made by Mohammadans or Indian  Christians and shall only apply\027                  (i)     in the case of Wills made by any  Hindu, Buddhist, Sikh or Jaina  where such Wills are of the classes  specified in clauses (a) and (b) of  section 57; and  

(ii)    in the case of Wills made by any  Parsi dying, after the  commencement of the Indian  Succession (Amendment) Act,  1962 (16 of 1962) where such  Wills are made within the local  limits of the ordinary original civil  jurisdiction of the High Courts at  Calcutta, Madras and Bombay, and  where such Wills are made outside  those limits, in so far as they relate  to immovable property situated  within those limits."

A bare reading of section 211 shows that the property  vests in the executors by virtue of the will and not by virtue  of the probate.  Will gives property to the executor; the  grant of probate is only a method by which the law  provides for establishing the will.  In the case of Kulwanta  Bewa v. Karamchand reported in [AIR 1938 Calcutta 714]  it has been held that section 211 provides that the estate of

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the deceased vests in the executor; that the vesting is not of  the beneficial interest in the property; but only for the  purposes of representation.  In the case of Meyappa Chetty  v. Supramanian Chetty reported in [43 Indian Appeals  113], the Privy Council has held that an executor derives  his title from the will and not from probate.  The personal  property of the testator (including right of action) vests in  the executor(s) on the death of the testator.  For purposes of  deciding this matter, section 336 of the Act is also relevant  as it provides for assent of the executor to the legacy after  the death of the testator.  It provides that an executor gets  divested of his interest as an executor from the death of the  testator when he assents to a specific legacy.  Section 213  acts as a bar to the establishment of rights under the will by  an executor or a legatee unless probate or letters of  administration have been obtained.  This bar comes into  play only when a right as an executor or a legatee under  will is sought to be established. However an un-probated  will can be admitted in evidence for collateral purposes in  any other proceedings apart from a probate proceedings.   (See: Cherichi v. Ittianam reported in [AIR 2001 Kerala  184]).  Therefore, on the demise of the testatrix, the said  property vested in the executors. The question which arises  for determination on the facts of this case is whether the  executors assented to the vesting of the said property in the  Hospital in terms of section 336 of the 1925 Act.  In this  case, the facts show that the executors never objected to the  vesting of the said property in the hospital. Three executors  were appointed under the will.  They never objected to the  legacy.  Several meetings of the executors had taken place  both before the death of the testatrix on 26th November  1962 and even thereafter for updating the accounts and to  obtain probate and at no stage they objected to the vesting  of the property in the Hospital.  Although application for  probate was made, the State was not a party respondent. In  fact, mutation was made in favour of the hospital as far  back as 2nd April 1970 to which the executors never  objected.  In the circumstances, the executors had assented  to the legacy in favour of the Hospital.  Looking to the  terms of clause 2 of the will, we hold that the hospital was  not a beneficiary, but a full owner of the property; that on  the demise of the testatrix the property vested in the  executors who assented by their conduct to the legacy of  the demised premises in the hospital and consequently, the  eviction proceedings were maintainable under the 1973  Act.   

The only question, therefore, which remains to be  decided is whether the competent authority was right in  coming to the conclusion that respondent No.1 was in  unauthorized occupation of the property as defined under  section 3(b) and, therefore, liable to be evicted under  section 5 of the 1973 Act?

As stated above, during the lifetime of Smt. Chanan  Kaur, a lease was executed in favour of respondent No.1 on  7.6.1962 for ten years.  Clause 8 provides for renewal and  not for extension of lease.  Hence, respondent no.1 was  required to apply for renewal which he never did.  The so- called application dated 22.5.1972 for renewal merely  states that there was a lease deed dated 7.6.1962 and on its  expiry, the lessee would continue.  In this case, the  intention of the testatrix under the will was to bequeath her  bungalow to the hospital absolutely and free of all  encumbrances and for all times.  She wanted her bungalow

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to be used as a ward in the government hospital.  In the  circumstances, we are of the view that on expiry of the  lease, respondent No.1 was in wrongful and illegal use and  occupation of the property in the nature of unauthorized  occupation and, therefore, the competent authority was  right in passing the impugned order of eviction under the  1973 Act.

Before concluding we may point out that during the  pendency of proceedings before this Court, an intervention  application was made on behalf of Smt. Reba Kapur  (respondent no.2).  That application was granted by the  earlier order passed by this Court.  Shri Rajiv Sharma,  learned counsel submitted on behalf of respondent No.2  (intervener) that if the appellant herein succeeds, it may  proceed against respondent No.2 under the 1973 Act.  He  contended that the property in question surrounding the  bungalow is quite substantial, a portion whereof is in  possession of respondent No.2.  We do not wish to go into  the arguments advanced on behalf of respondent No.2 as  eviction order, if any, against respondent No.2 is not the  subject matter of challenge before us.  It is not even clear as  to whether any such proceedings have been taken against  respondent No.2.  In the present case, we are only  concerned with the order of eviction passed against  respondent No.1 by the competent authority under the 1973  Act.  Hence, we are confining our judgment to the facts of  this case.  

For the aforestated reasons, we hold that the High  Court was right in dismissing Regular Second Appeal  No.1263 of 1983 filed by respondent No.1.  However, it  had erred in allowing Civil Writ Petition No.2959 of 1984  filed by respondent no.1 and in setting aside the order of  eviction under the 1973 Act.  We accordingly set aside  judgment under challenge and allow Civil Appeal No.1257  of 1999 filed by the State Government and dismiss Civil  Appeal No.1265 of 1999 filed by respondent No.1.  There  shall be no order as to costs.