2006 Supreme(SC) 972

2007(1) Supreme 547
SUPREME COURT OF INDIA
(From Karnataka High Court)
S.B. Sinha and Dalveer Bhandari, JJ.
M/s Bay Berry Apartments Pvt. Ltd. & Anr.—Appellants
versus
Shobha & Ors.—Respondents
Civil Appeal No. 8814 of 2003
Decided on 19-10-2006
Counsel for the Parties :
For the Appellants : U.U. Lalit, Sr. Advocate, Ms. Miran Javalli, Joseph Pookkatt, Ms. Pooja Dhar, Ms. Prasenjit Keswani and Prashant Kumar, Advocates.
For the Respondents : S.N. Bhat, Ms. Sheela Goel, D.P. Chaturvedi, N.P.S. Panwar, K. Swami, G.R. Mohan and Mrs. Prabha Swami, Advocates.

IMPORTANT POINT
When a document is not uncertain or does not contain an ambiguous expression it should be given its literal meaning.

Headnote:(i) HINDU LAW—Hindu Succession Act, 1958—Sections 4, 18 & 14—Will —Construction of expression ‘heirs’ used in the Will—Original owner having 5 sons and owning a large number of properties, executed a Will in year 1932—A portion of properties was bequeathed in favour of defendant 1 who was then a minor—In terms of the Will, sons of the testator got life interest and only, after his death his heirs, legal representatives could inherit the same —In year 1975, defendant 1 and his son executed a sale deed in favour of appellants—Daughters of defendant 1 filed a civil suit challenging sale deed alleging that they were also lawful heirs entitled to the bequests under the Will—Plaintiffs did not implead their brother as a party—Whether plaintiffs daughters were ‘heirs’ within the meaning of the said term as expressed in the Will—(No)—Defendant 1 died during pendency of the suit in year 1998—In year 1975, defendant 1 and his son had no authority to execute any deed of sale—Suit filed by plaintiff was a pre-mature one—Declarations sought for that plaintiffs were the beneficiaries under the Will could have been granted in their favour only upon demise of their father and not prior thereto.

       Held : Indisputably, in the year 1932 when the Will was executed the plaintiffs were not the heirs of the propounder. In terms of the law as was existing then, they were not heirs of the testator. They could not have inherited their property further as they were not the heirs of V. Papaiah Naidu. (Para 17)

       The Parliament, however, enacted Hindu Succession Act, 1956. On the date of execution of the Will, the original defendant No. 1 was a minor. He was married later on. He was blessed with a son only in the year 1957. On the date when the deed of sale was executed, i.e. on 3.12.1975, the original defendant No. 1 and his son were majors. He has not questioned the legality of the said deed of sale. The question, however, would arise as to whether the plaintiffs became the heirs of their father having regard to the provisions of the Hindu Succession Act. In law, indisputably, the question is whether they were heirs within the meaning of the said term as expressed in the Will. By reason of the Will, the original defendant No. 1 did not succeed to the interest absolutely. He was given only life interest. Succession under the Will opened only on his death. He died during pendency of the suit in the year 1998. Succession opened only then. In the year 1975, the original defendant No.1 and his son, thus, had no authority to execute any deed of sale. The defendant No.1 could only transfer or alienate the interest he had in the property. Respondent No.3, thus, did not inherit the property although in the deed of sale dated 3.12.1975 it was stipulated that both of them were owners thereof and had perfect title therein.(Para 19)

       The suit was a pre-mature one in the sense that the declarations sought for that the plaintiffs were the beneficiaries under the Will could have been granted in their favour only upon demise of their father and not prior thereto.(Para 19)

       Plaintiffs who are the daughters of the original defendant No. 1, in law was not entitled to inherit their fathers share in the properties but for the provisions of the Hindu Succession Act, which brought statutory change. Admittedly, by reason of Section 8 of the Hindu Succession Act, they became heirs of their father in terms whereof the sisters share is equal to that of the brothers. If they were to be excluded, it would have been said so in the Will.(Para 32)

       We fail to understand as to how in the year 1975 the sale deed could be executed. The original defendant No. 1 knew the implication of Will. He was aware that an embargo had been created in his right to transfer the property to any other person. In view of the injunction contained in the said document he could not have alienated the property. He could only be in enjoyful possession thereof. The original defendant No. 1, therefore, thought that if his son is impleaded as one of the executant of the document; probably the embargo created under the Will would not come in his way. In law, he was not right there. His son also did not inherit the property as he was alive. In terms of Clause (7) of the Will, the question of his sons inheriting the property from the original defendant No.1 did not arise. Mr. Bhat is correct in his submission that the suit was pre-mature as no cause of action for the suit arose for the plaintiffs for obtaining a decree to set aside the deed of sale dated 3.12.1975. The cause of action arose on the death of the original defendant No.1 which took place during pendency of the suit. If the cause of action arose during pendency of the suit and if having regard to the facts and circumstances of this case, the suit keeping in view the subsequent event could not have been dismissed on the ground that it was barred under the law of limitation, we are of the opinion that it would not be proper for us to interfere with the impugned judgment. (Para 35)

       Submission of Mr. Lalit that his clients are bona fide purchasers is not of much significance in this case. If the deed of sale executed by the original defendant No.1 and the Respondent No.3 is void and thus, not binding upon the plaintiffs-respondents, the consequences therefor would ensue. What would be the effect of the sale deed vis-a-vis the Respondent No.3, as we have noticed hereinbefore, would be different having regard to the provisions contained in Section 41 of the Transfer of Property Act. In the event a partition suit is filed, which property shall be allowed in the share of the Respondent No.3 is not a matter wherewith this Courts attention is required to be engaged. Such question shall appropriately fall for consideration in appropriately constituted suit.(Para 43)

       For the reasons aforementioned, we are of the opinion that no case has been made out for exercise of our discretionary jurisdiction under Article 136 of the Constitution of India.(Para 44)

       (ii) Transfer of Property Act, 1882—Section 41—Sale deed—Validity challenged—Plea of bona fide purchasers—Succession under the Will opened in year 1998—Sale deed executed in year 1975 by father and son when they had no authority to executed any deed of sale—Civil suit filed by daughters in year 1982—Whether sale deed executed by defendant father and his son is void—(Yes)—Son of defendant 1 was not a party in lower court—He supports plaintiffs but he himself did not challenge deed of sale—His interest in the property may be claimed by appellants, purchasers of property having regard to the principles contained in Section 41 of the Act.(Paras 38 and 43)

       (iii) Civil Procedure Code, 1908—Order VII Rule 7—Appeal is in continuation of the suit—Appellate Court may take into consideration subsequent events with a view to mould relief.(Para 36)

       (iv) WORDS AND PHRASES—Expressions ‘children’, ‘issue’ and ‘heirs’—Meanings—These expressions would ordinarily be not synonymous but sometimes they may carry the same meaning.

       Held : Now, the principal question is as to what would be the meaning of expression heirs. We have noticed hereinbefore that whereas in relation to the male descendancy the executor had used the expression heirs in regard to the succession of property after their death, which were bequeathed in their favour; the expression children has been used in relation to the inheritance of the property bequeathed in favour of daughters and daughters in law. (Para 20)