Deciding Authority: The Supreme Court of India
Name of the Judges: V.N. Khare & Ashok Bhan
Date of Judgement: 23/01/2002
Facts: One Jamuna Prasad was the owner of a house as well as certain other properties including Bhumadhari land, situated at village Kakhra Kaurd, Pargana Naugarh, District Basti. Jamuna Prasad had two wives – Smt Suraja Devi and Smt. Sona Devi. Jamuna Prasad married Smt. Sona Devi after the death of his first wife Smt. Suraja Devi. Jamuna Prasad had no male issue. He had three daughters from his first wife Smt. Surja Devi Smt. Mishara, Smt. Partapa and Smt. Dulari. From second wife Smt. Sona Devi, Jamuna Prasad had also three daughters Smt. Gunjan Devi, Smt. Ram Sanwari and Smt. Dhupa. Smt. Mishara has a son Chandrakant. Smt. Partapa has three sons Ram Sureman, Ram Ujagar and Ram Millan. Smt. Dulari has two sons Sesh Chandra and Ram Chandra. Smt. Gunjan Devi daughter of Smt. Sona Devi, has a son Balbhaddar. Smt. Ram Sanwari has a son Ram Kirpal and Smt. Dhupa has a son Bindhabasni. After the Hindu Succession Act came into force, Jamuna Prasad executed a Will dated 3.7.1956 bequeathing his entire property in favour of his second wife Smt. Sona Devi and after her death subsequent bequeath was in favour of his daughters’ son (s) from both the wives. Jamuna Prasad died in 1961, whereas Smt. Sona Devi died in 1964. On 4.9.1964, plaintiff nos. 1 to 3 who are respondents herein, purchased the land through a sale deed from Ram Sureman, Ram Ujagar and Ram Millan sons of Smt. Partapa. In the said sale deed, Smt. Partapa also joined as vendor. On 24.3.1965, plaintiff no. 6 obtained sale deed from defendant no. 11 Chandrakant in respect of his share in the property. On 4.2.1966, plaintiff nos. 4 and 5 who are respondents herein, obtained sale deed from defendant Sesh Chandra in respect of his share in the property. On 1.6.1966, the plaintiffs who were purchasers of the shares in the land filed a suit out of which the present appeal arises, praying therein for a decree for a sum of Rs. 1946.66 against defendant I and II sets by way of damages on account of the defendants having wrongfully cut away the crop and, in the alternative, for mesne profits – Rs. 330/- as damages in lieu of their share and for partition of 4/9th share in the disputed house and for joint possession to the extent of their shares in the disputed Bhumidhari lands. The plaintiffs’ case was that Smt. Sona Devi obtained a limited estate on the death of Jamuna Prasad under the will and after her death, all the nine sons of the daughters from both the wives inherited the property in accordance with the provisions of the Will. Defendant nos. 1 to 10 contested the suit. Defendants-appellants’ case was that Smt. Sona Devi second wife of Jamuna Prasad, through the Will obtained an absolute estate and became full owner of the property on the death of Jamuna Prasad, and in that view of the matter, any subsequent bequeath in the same Will in favour of daughters’ sons was invalid. It was also their case that after the death of Smt. Sona Devi, her daughters succeeded to her interest in respect of Bhumadhari plots under Section 174 of U.P. Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as the Act). Trial Court and first appellate authority had decided on the favour of plaintiffs. But the second appellate authority set aside the order of first appellate authority and then the matter came to this apex Court.
Judgement: On the argument of learned counsel for the parties, the questions that arise for consideration are these:
1) whether under the Will Jamuna Prasad bequeathed an absolute estate in favour of his second wife Smt. Sona Devi or restricted right;
2) whether the subsequent bequeath in the Will in favour of the sons of the daughters of Jamuna Prasad is invalid if it is found that Jamuna Prasad bequeathed an absolute interest in the property in favour of his second wife Smt. Sona Devi; and
3) whether all the sons of all the daughters of Jamuna Prasad would inherit under the Act, if it is found that Jamuna Prasad bequeathed an absolute estate in favour of his second wife Smt. Sona Devi.
The first and the second question are overlapping and, the Court shall, therefore, consider both the questions together. Ordinarily, the rule of construction of a Will is that a Will (bequeath) has to be read in its entirety and effort should be made that no part of it is excluded or made redundant. The Court took the observations of the cases of Ramkishorelal and another vs. Kamalnarayan 1963 Suppl. (2) SCR 417 and Radha Sundar Dutta Vs. Mohd. Jahadur Rahim & others (Supra). After perusing these cases the Court concluded following leagal principless:
1) where under a Will, a testator has bequeathed his an absolute interest in the property in favour of his wife, any subsequent bequeath which is repugnant to the first bequeath would be invalid; and
2) where a testator has given a restricted or limited right in his property to his widow, it is open to the testator to bequeath the property after the death of his wife in the same Will.
The English translation of first part of Will is: “the testator is wife whose name is Smt. Sona Devi, would be entitled to the entire assets and properties with the right of transfer and after death of Sona Devi.”
The first part of the Will provided that after the death of the testator or author of the Will, his wife whose name is Smt. Sona Devi would be entitled to the entire assets and properties of Jamuna Prasad with the right of transfer. The second part of the Will is that after the death of Smt. Sona Devi nine sons of daughters’ would inherit the property. The Court is, therefore, very clear in its mind that what was given to Smt. Sona Devi was an unlimited and an absolute estate and it is not open to testator to further bequeath the same very property in favour of second set of persons.
Coming to the third question, under Section 169 of the Act, a Bhumidhar with a transferable right is entitle to bequeath his holdings or any part thereof in favour of any one except as what is provided therein. In the present case, Jamuna Prasad by virtue of his Will has bequeathed an absolute interest in the Bhumadhari land in favour of Smt. Sona Devi and by virtue of the said Will, Smt. Sona Devi being a legatee acquired Bhumidari rights after the death of Jamuna Prasad. It is true that under Section 171(2) (g) of the Act, the married daughters of Jamuna Prasad were entitled to succeed to the Bhumidhari plots of land. But in the present case, Smt. Sona Devi did not inherit the property (Bhumadhari land) as a widow of Jamuna Prasad but succeeded to the Bhumidhari land as legatee of Jamuna Prasad in pursuance of the Will dated 3.7.1958. The law does not permit a Bhumidhar to create successive legatees under a Will. In that view of the matter, after the death of Smt. Sona Devi, her daughters’ and thereafter their sons would succeed to the holding and not all daughters’ sons of Jamuna Prasad.
Decision: The appeal is allowed.
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