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PETITIONER: NATHOO LAL

       Vs.

RESPONDENT: DURGA PRASAD

DATE OF JUDGMENT: 09/04/1954

BENCH: HASAN, GHULAM BENCH: HASAN, GHULAM MAHAJAN, MEHR CHAND MAHAJAN, MEHAR CHAND (CJ) BOSE, VIVIAN

CITATION:  1954 AIR  355            1955 SCR   51  CITATOR INFO :  RF         1957 SC 540  (46)

ACT:     Hindu Law-Female- Alienation in her favour- Whether  any presumption  of  law  that  she does  not  get  absolute  or alienable  interest in the, property-Whether the case  of  a male and that of a female different.

HEADNOTE:    It may be taken as well settled that there is no  warrant for  the proposition of law that when a grant of  immoveable property  is  made  to a Hindu female she does  not  get  an absolute or alienable interest in such property unless  such power is expressly conferred upon her. The law is that there is no presumption one way or the other and  there is no difference between the case of a  male  and the case of a female and the fact that the donee is a  woman does not make the gift any the less absolute where the words would be sufficient to convey an absolute estate to a male. Mohamed  Shumsool  v.  Shewakram (2  I.A.  7),  Nagammal  v. Subbalakshmi 1(1947) I.M.L.J. 641 and Ram Gopal v. Nand  Lal (A.I.R. 1961 S.C. 139) referred to.

JUDGMENT:  CIVIL APPELLATE JURISDICTION: Civil Appeal No. 59 of 1953. Appeal  from  the Judgment and Order dated  the  5th  April, 1950,  of the High Court of Rajasthan at Jaipur in Case  No. 24 of Samvat 2005 (Review modifying the Decree dated the 3rd March, 1949, of the High Court of the former Jaipur State in Civil  Second  Appeal  No. 187 of Samvat  2004  against  the Decree 52 dated  the  15th April, 1948, of the Court of  the  District Judge,  Jaipur City, in Civil Appeal No. 40 of  Samvat  2004 arising  out of the Decree dated the 23rd August,  1947,  of the  Civil  Judge,  Jaipur City, in Suit No.  66  of  Samvat 2002). Dr.   Bakshi Tek Chand, (Rajinder Narain, with him) for  the

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appellant. D.M.  Bhandari, (K.  N. Aggarwala and R. N.  Sachthey,  with him) for the respondent. 1954.  April 9. The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C. J.-This is an appeal from the judgment and  decree  of the High Court of Judicature  of  Rajasthan, dated the 5th April, 1950, modifying the decree of the  High Court of the former Jaipur State, dated the 3rd March, 1949, on an application for review in a second appeal concerning a suit for possession of property. The   property  in  dispute  originally  belonged   to   one Ramchandra  who  died  sonless in the  year  1903.   He  was survived  by his mother, Sheokori, his widow,  Mst.   Badni, and  his  two daughters,.  Bhuri and Laxmi.  It  is  alleged that  he  made an oral will under which  he  bequeathed  the property  in  dispute to his daughter, Laxmi.   On  the  6th September, 1906, Mst.  Sheokori and Mst.  Badni,  purporting to  act in accordance with the directions of the oral  will, executed  and registered a deed of gift of the  property  in dispute  in favour of Mst.  Laxmi.  The gift  deed  contains the following recitals:-    "  These houses are made a gift to you according  to  the will of your father, Ramchandra......... In this way,  these houses  belonging  to  us were  purchased  by  your  father, Ramchandra,  and he in his last days having made a  gift  of these  houses to you, made a will to us that he had  made  a gift  of that house to his daughter, Laxmi, and directed  us to  get  the gift deed registered in her name.   He  further said  that  if we or our relations., kinsmen,  creditors  do raise any dispute with her he would I damangir hoonga  catch hold of him by his 53 garments.  According to his aforesaid will, we have got this gift  deed  executed in your favour, while in  best  of  our senses  and  in  discharge of our sacred  duty  enjoined  by Dharma......  No other person except you has got  any  claim over  the  house.  You deal with your house in any  way  you like.   If anybody takes back the land gifted by himself  or his ancestors, he will live in hell as along as the sun  and moon shines." The  scribe,  it  seems, did  not  in  appropriate  language express  the directions of the two widows and his  ideas  of the legal situation were somewhat confused but there can  be no  manner  of  doubt  that  the  two  executants  were  not conferring  themselves  any  title which  they  had  in  the property on Laxmi but were merely giving effect to the  oral will as executors and were putting the legatee in possession of the bequeathed property in this manner.  That the  widows had  no title themselves is evident from the fact that  Mst. Sheokori also joined in executing the gift deed.  Admittedly Ramchandra’s estate could not devolve on her. Bhuri,  the  second daughter, died in the year  1907,  while Mst.  Badni, the widow., died in the year 1927.  Mst.  Laxmi remained in possession of the property till her death in the year 1928.  After her death Balabux, her husband, on the 5th of  July, 1930, claiming as heir to her mortgaged the  house in  dispute to the defendant appellant Nathoo Lal and  later on  the 5th of October, 1933, he sold it to him and put  him into possession of it and since then he is in possession. On the 4th October, 1945, that is one day before the  expiry of  the period of 12 years from the date of the  defendant’s entry  into possession of the house, the plaintiff,  son  of Mst.   Bhuri, sister of Mst.  Laxmi, claiming as an heir  to her estate, filed this suit in forma pauperis for possession of  the house.  He alleged that he was in possession of  the

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house  till  the 24th of August, 1933, through  his  tenant, that  after  it was vacated by the tenant he locked  it  and went  away to his native village Harmara ; and that  on  the 27th of September, 1944, he came to know that the house  had been  taken  possession  of  by  the  appellant  during  his absence.  It 54 was  contended  by him that Balabux had no right  either  to mortgage  or  sell  the house and that  Laxmi  was  not  the absolute owner of the property but had only a limited estate in it, and on her death he was entitled to possession of it. On  the 28th of August, 1947, the suit was dismissed by  the Civil  Judge, who held that Mst.  Laxmi became the  absolute owner  of the property, and the plaintiff therefore  had  no title  to  claim possession of it after her  death,  Balabux being  her  stridhan heir.  The learned Judge  however  held that  the  suit  was within  limitation.   On  appeal,  this decision  was affirmed by the District Judge.  He  expressed the opinion that the widow in executing the deed of gift was only  acting  as  an  execution of the  oral  will  made  by Ramchandra  at  his deathbed and that Laxmi got  under  this will  an absolute estate in the suit property.  The plea  of limitation  raised  by the defendant was  negatived  on  the finding  that the plaintiff was in possession of  it  within twelve years of the suit. Plaintiff  preferred  a second appeal to the High  Court  of Jaipur and this time with success.  The High Court held that after  the  death  of  Laxmi  the  plaintiff  continued   in possession  of  the house till he was  dispossessed  by  the defendant  on the 5th of October, 1933, and that he  was  in possession  even during her lifetime.  On the main  question in  the case the High Court held that though the  house  was bequeathed to Laxmi by Ram chandra under an oral will, there was no proof that it conferred upon her an absolute interest in  the  property and that in the absence  of  any  evidence indicating  that  the donor intended to convey  an  absolute interest to her, the gift being in favour of a female  could only confer upon her a limited life estate and on her  death revert to the donor’s heirs and the plaintiff being such  an heir was entitled to succeed.  In the result the appeal  was allowed  and  the plaintiff’s suit was  decreed  with  costs throughout. The  defendant  applied  for  a  review  of  this  judgment. Meanwhile  the Jaipur High Court had become defunct and  the review was heard by the Rajasthan High Court 55 as successor to the Jaipur High Court under the High  Courts Ordinance  and  was partially allowed on the 5th  of  April, 1950,  and  the decree was accordingly amended  and  it  was provided therein that the plaintiff shall not be entitled to possession  of the house except on payment of Rs.  4,000  to the  defendant as costs of improvements and repairs.  It  is against  this  judgment and decree passed after  the  coming into  force  of the Constitution of India that  the  present appeal  has  been preferred to this Court by  leave  of  the Rajasthan   High  Court  under  article  133(1)(c)  of   the Constitution. The learned counsel for the respondent raised a  preliminary objection  as  to  the maintainability of  the  appeal.   He contended  that according to the Code of Civil Procedure  of the  Jaipur State the decision of the Jaipur High Court  had become final as no appeal lay from it and hence this  appeal was incompetent.  It was argued that the proceedings in  the suit  decided in 1945 had concluded by the decision  of  the High  Court  given in 1949, and the  review  judgment  which

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modified  the  decree in regard to improvements,  could  not entitle  the  appellant to reopen the decision of  the  High Court of Jaipur given in 1949. In  our  opinion, this objection is not well  founded.   The only  operative  decree  in  the  suit  which  finally   and conclusively  determines  the rights of the parties  is  the decree  passed on the 5th of April, 1950, by  the  Rajasthan High Court and that having been passed after the coming into force  of  the  Constitution of  India,  the  provisions  of article 133 are attracted to it and it is appealable to this Court   provided  the  requirements  of  that  article   are fulfilled.  The Code of Civil Procedure of the Jaipur  State could  not determine the jurisdiction of this Court and  has no  relevancy  to the maintainability of  the  appeal.   The requirements  of  article 133 having  been  fulfilled,  this appeal is clearly competent. The  learned counsel then contended that the High Court  was in  error in granting the certificate in this case.  We  are unable to agree.  An inquiry was made into the valuation  of the  property  and it was reported that its  value  was  Rs. 20,000 or that the decision affected 56 property  of the value of above Rs. 20,000.   A  substantial question of law was involved in the case, that is, whether a testamentary  disposition by a Hindu in favour of a  female’ heir  conferred on her only a limited estate in the  absence of  evidence that he intended to confer on her  an  absolute interest  in the property.  In these circumstances the  High Court  was fully justified in granting the certificate.   We ourselves  would  have been prepared to  admit  this  appeal under  our extraordinary powers conferred by article  136(1) of  the  Constitution, if such a certificate  had  not  been given  in the case.  For the reasons given above we  see  no force in either of these two preliminary objections which we overrule. Dr.  Bakshi Tek Chand for the appellant contended  that  the Courts  below were in error in holding that the  plaintiff’s suit was within limitation.  He urged that in order to bring the  suit within limitation the plaintiff in paragraph 5  of the  plaint  alleged that after the death of Laxmi  he  kept tenants  in  the  house, realised the rent  and  enjoyed  it and/that  the last tenant vacated on the 24th August,  1933, and thereafter he went to his native place after locking the house,  but that this allegation had not been made  good  by him, and as there was no evidence that he looked the  house, it  should be held that plaintiff’s possession  discontinued with  effect from the 24th August, 1933, and hence his  suit brought more than twelve years-from that date was not within time. It has been found by the Courts below that the plaintiff was in  possession  of this house even during  the  lifetime  of Laxmi  and continued in possession thereafter.  Even if  the tenant  vacated the house on the 24th August, 1933, and  the plaintiff did not lock it, his possession would be  presumed to  continue till he was dispossessed by some one.  The  law presumes  in favour of continuity of possession.  The  three Courts  below have unanimously held that on the evidence  it was  established  that after the death  of  Laxmi  plaintiff continued in possession of the house and the suit was within limitation.   There are no valid grounds for reviewing  this finding in the fourth Court and the contention is  therefore negatived. 57 Dr.  Bakshi Tek Chand next contended that Laxmi acquired  an absolute  title in the suit property under the will  of  her

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father and that the High Court was in error in@holding  that unless  there were express words indicating that  the  donor who had absolute interest in the gifted property intended to convey an absolute interest to her, the gift in favour of an heir  who would ordinarily inherit a limited interest  could not  be construed as conferring an absolute  interest.   The learned counsel for the respondent on the other hand  raised two  contentions.   He urged in the first instance  that  it seems that the intention of Ramchandra was to make a gift of the  suit property in favour of Laxmi but he was  unable  to perfect  the gift by executing a registered deed,  being  on his deathbed and in that situation the property devolved  on his widow by inheritance and it only came to Laxmi under the widow’s  gift  and  under  it she could  not  get  a  larger interest  than what the widow herself possessed,  namely,  a limited life estate, which terminated on her death.  In  the alternative,  it was said that there was no evidence  as  to the  terms  of the oral will and that ’being  so,  the  gift being  in  favour of a female heir, the presumption  in  the absence  of evidence to the contrary was that the donee  got only a limited life interest in the bequeathed property. In our judgment, there is force in the contention of Dr. Tek Chand and none of the contentions raised by the respondent’s ’counsel have any validity.  That Ramchandra bequeathed  the suit property and did not gift it to his daughter Laxmi is a fact  which  cannot  be questioned at this  stage.   It  was admitted by the plaintiff himself in the witness box.   This is what he said :- " Ramchandra had made a will in favour of Mst.  Laxmi and in that  connection my maternal grandmother and maternal  great grandmother  got the gift deed registered.  This  very  gift deed  was  got  executed  by  my  maternal  grandmother  and maternal  great  grandmother  and  had  got  it  registered. Through  this gift deed Mot.  Laxmi held possession over  it till she was alive.  She had kept deponent as her son and so 8 58 she  got  the  rent notes executed in  my  name."’  What  is admitted  by a party to be true must be presumed to be  true unless  the contrary is shown.  There is no evidence to  the contrary  in  the case.  The gift deed  fully  supports  the testimony  of  the plaintiff on this point.   It  definitely states  that  according  to  the will,  the  gift  deed  was executed  in  favour of Laxmi and it  further  recites  that Laxmi was entitled to deal with the house in any manner  she liked.   Those  who were directed to execute the  oral  will made by Ramchandra must be presumed to have carried out  his directions  in accordance with his wishes.  It  seems  clear that  the  intention  of the testator  was  to  benefit  his daughter, Laxmi, and to confer upon her the same title as he himself  possessed.  She was the sole object of  his  bounty and on the attendant circumstances of this case it is  plain that he intended to confer on her whatever title he  himself had.   Laxmi  therefore  became the absolute  owner  of  the property under the terms of the oral will of her father  and the plaintiff is no heir to the property which under the law devolved  on Laxmi’s husband who had full right to  alienate it. We  are  further of the opinion that the High Court  was  in error in thinking that it is a settled principle of law that unless  there  are  express terms in the  deed  of  gift  to indicate  that the donor who had absolute interest  intended to  convey absolute ownership, a gift in favour of  an  heir who inherits only a limited interest cannot be construed  as conferring  an absolute interest.  It is true that this  was

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the  principle once deduced from the Privy Council  decision in Mahomed Shumool V.  Shewukram(1) wherein it was held that a bequest to a daughter-in-law passed a limited estate.  The proposition  laid  down  in  Mahomed  Shumsool’s  case   was construed by the High Courts in India to mean that a gift of immovable property to a woman could not be deemed to  confer upon  her an absolute estate of inheritance which she  could alienate at her pleasure unless the deed or will gave her in express  terms  a heritable estate or power  of  alienation. Later decisions of the Judicial Committee made it clear that if words were used (1) 2 I.A. 7. 59 conferring  absolute  ownership  upon  the  wife,  the  wife enjoyed  the  rights of ownership without their  being  con- ferred by express and additional terms.  Shumsool’s  case(1) has been examined in recent years in some High Courts and it has been observed that according to the law as understood at present  there  is no presumption one way or the  other  and there  is no difference between the case of a male  and  the case  of  a female, and the fact that the donee is  a  woman does not make the gift any the less absolute where the words would  be sufficient to convey an absolute estate to a  male (see Nagammal v. Subbalakshmi Ammal(2).  The matter has  now been set at rest by the decision of this Court in Ram  Gopal v. Nand Lal(3).  In this case it was observed as follows:-- "  It  may  be taken to be quite settled that  there  is  no warrant  for the proposition of law that when a grant of  an immovable  property is made to a Hindu female, she does  not get  an  absolute or alienable interest  in  such  property, unless  such  power is expressly conferred  upon  her.   The reasoning adopted by Mitter J. of the Calcutta High Court in Mst.  Kollani Kuar v. Luchmi Kuar(4), which was approved  of and  accepted  by  the Judicial Committee  in  a  number  of decisions,  seems to me to be unassailable.  It was held  by the  Privy  Council  as early as in the case  of  Tagore  V. Tagire  (5)  that if an estate were given to a  man  without express words of inheritance, it would, in the absence of  a conflicting  context,  carry,  by Hindu Law,  an  estate  of inheritance.  This is the general principle of law which  is recognized  and  embodied in section 8 of  the  Transfer  of Property  Act and unless it is shown that under Hindu Law  a gift to a female means a limited gift or carries with it the restrictions or disabilities similar to those that exist  in a "widow’s estate,’ there is no justification for  departing from  this principle.  There is certainly no such  provision in Hindu Law and no text could be supplied in support of the same. "  The  position, therefore, is that to convey  an  absolute estate to a Hindu female, no express power (1) 21    A. 7.         (4) 24 W.R. 395. (2) (1947) I M.L.J. 64.   (5) 9 Beng.  L.R. 377, P.C. (3)  A.I.R. 1951 S.C. 139. 60 of alienation need be given; it is enough if words are  used of such amplitude as would convey full rights of ownership." The learned Judges of the High Court were therefore  clearly wrong  in law in holding that the will having been  made  by the father in favour of his daughter, it should be  presumed that he intended to give her a limited life estate. For  the reasons given above we allow the appeal, set  aside the decree of the High Court decreeing the plaintiff’s  suit and  restore  the decree of the trial Court  dismissing  the plaintiff’s suit.  In the circumstances of this case we will make no order as to costs.

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                           Appeal allowed.