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1963 Supreme(Pat) 75
PATNA HIGH COURT
Kanhaiya Singh and Ramratna Singh JJ.
Mohanlal
Versus
Habibullah
Appeal from Original Decree No. 495 of 1956 ;
Decided On : JUNE 26, 1963
The corpus of the suit properties and not the income therefrom was given by the will to the beneficiaries.
Headnote:
PARTITION SUIT - WILL - CONSTRUCTION - LEGATEES - CORPUS OR INCOME - ADVERSE POSSESSION - FAMILY ARRANGEMENT - SHARES.
Fact of the Case:
The suit was for partition of two holdings situated within Patna Municipal Corporation. The properties were owned by Kallar Sao, who died in 1902 leaving a will. The will gave certain shares to different legatees in the corpus of the suit properties. The plaintiff, who was the tenant of a portion of the suit properties, purchased the shares of some of the legatees and sought partition of his share in the suit properties. Defendant No. 1, who was the son of one of the legatees, contested the claim of the plaintiff, asserting that the legatees were to receive only the income from the properties and not the corpus, and that the transferees of the legatees did not acquire any title under the deeds of transfer.
Finding of the Court:
The court found that the corpus of the suit properties and not the income therefrom was given by the will to the beneficiaries; the gift to charity was void for vagueness and uncertainty; Saukhi and his sons got 21/2 annas interest in the property being the total of one anna interest given to Mst. Kuer, who died about 40 years ago, and 11/2 annas interest allotted under the will for the purpose of khairat (charity) and they were in possession of the same since before 1916, when Saukhis name was recorded in the Municipal papers, until defendants 2 and 3 sold that interest to defendant Nos. 15 and 16; defendant No. 1 had only 3 annas interest in the holdings in question; Saudagars interest devolved after his death on his five nephews per capita, that is, 1/5th each; Raghunath and Chhotu, accordingly, got 1/5th share out of the interest of Saudagar, that is 12 dams; Raghunath and Resham, widow of Chhotu, executed a sale-deed (Ext. 1-d) in respect of 4/3/16 darns in holding No. 101 in favour of the plaintiff, but the latter can claim only 4/3/2 dams on account of the fact that his vendors were entitled to that interest only; the plaintiff acquired 4/5th share which is equal to -/1/4 dams out of the interest of Paddy in both the holdings from his four daughters through two sale-deeds (Exts. 1/a and 1/b): defendant No. 1, who claims to have been joint with Padoji, cannot claim any interest by survivorship in his share, because Paduji got this share under the will and thereafter his heirs were entitled to inherit that interest and transfer the same; Paduji died in state of separation from defendant No. 1 and his father; defendant No. 1 or his father did not inherit the shares of Gulab Paddu, Sampat and Kuer, nor he ever got possession of the same; Mst. Sampat managed to be in possession of 21/2 annas share in the holdings made up of one anna interest which she got by the will and 11/2 annas interest of Gulab which she got as widow of Parbhu, son of Gulabji. She sold away the entire interest by 1938, that is, about two years before she died in 1940 and the transferees got possession of the shares purchased by them and were recorded with others in the municipal papers; and, the plaintiff got 15 dams interest in the southern portion of holding No. 101 from Deoki Kuer by a sale-deed (Ex. 1/c), who had purchased this interest from Mst. Sampat.
Issues: 1. Whether the corpus of the suit properties or only the income therefrom was given by the will to the beneficiaries? 2. Whether the gift to charity was valid or void? 3. Whether Saukhi and his sons got any interest in the suit properties and if so, what was the extent of their interest? 4. What was the share of defendant No. 1 in the suit properties? 5. How did the interest of Saudagar devolve after his death? 6. What was the share of Raghunath and Chhotu in the interest of Saudagar? 7. What was the share of the plaintiff in the suit properties? 8. Whether defendant No. 1 could claim any interest by survivorship in the share of Paduji? 9. Whether defendant No. 1 or his father inherited the shares of Gulab Paddu, Sampat and Kuer? 10. Whether Mst. Sampat was in possession of any share in the suit properties and if so, what was the extent of her share? 11. Whether the transferees of Mst. Sampat acquired any title by adverse possession? 12. Whether there was any family arrangement between the members of the family and if so, what was the effect of such arrangement?
Ratio Decidendi: 1. The court held that the corpus of the suit properties and not the income therefrom was given by the will to the beneficiaries, based on the language of the will and the surrounding circumstances. 2. The court held that the gift to charity was void for vagueness and uncertainty, as the particular purpose to which the same would be applied was not mentioned. 3. The court held that Saukhi and his sons got 21/2 annas interest in the property being the total of one anna interest given to Mst. Kuer, who died about 40 years ago, and 11/2 annas interest allotted under the will for the purpose of khairat (charity) and they were in possession of the same since before 1916, when Saukhis name was recorded in the Municipal papers, until defendants 2 and 3 sold that interest to defendant Nos. 15 and 16. 4. The court held that defendant No. 1 had only 3 annas interest in the holdings in question. 5. The court held that Saudagars interest devolved after his death on his five nephews per capita, that is, 1/5th each. 6. The court held that Raghunath and Chhotu, accordingly, got 1/5th share out of the interest of Saudagar, that is 12 dams. 7. The court held that the plaintiff acquired 4/5th share which is equal to -/1/4 dams out of the interest of Paddy in both the holdings from his four daughters through two sale-deeds (Exts. 1/a and 1/b). 8. The court held that defendant No. 1, who claims to have been joint with Padoji, cannot claim any interest by survivorship in his share, because Paduji got this share under the will and thereafter his heirs were entitled to inherit that interest and transfer the same. 9. The court held that Paduji died in state of separation from defendant No. 1 and his father; defendant No. 1 or his father did not inherit the shares of Gulab Paddu, Sampat and Kuer, nor he ever got possession of the same. 10. The court held that Mst. Sampat managed to be in possession of 21/2 annas share in the holdings made up of one anna interest which she got by the will and 11/2 annas interest of Gulab which she got as widow of Parbhu, son of Gulabji. She sold away the entire interest by 1938, that is, about two years before she died in 1940 and the transferees got possession of the shares purchased by them and were recorded with others in the municipal papers. 11. The court held that the transferees of Mst. Sampat did not acquire any title by adverse possession, as there was no exclusive possession of, or hostile assertion of title by, any co-owner over any portion of the suit properties. 12. The court held that there was a family arrangement between the members of the family and by that family arrangement Saukhi and his heirs were given 21/2 annas interest, namely, the interest of Mst. Kuer and the interest meant for charity.
Final Decision: The court affirmed the judgment and decree of the trial court and dismissed the appeal. However, the parties were directed to bear their own costs of the appeal.
Ramratna Singh, J.
1. This appeal by defendant No. 1 arises out of a suit for .partition which, was decreed by an Additional Subordinate Judge of Patna. The properties sought to be partitioned are two holdings situated within Patna Municipal Corporation, namely, old holding No. 101 corresponding to new holding No. 103 consisting of two blocks described, as northern kita and southern kita, and old holding No. 96 corresponding to new holding No. 98.
2. In order to appreciate the case, it is necessary to refer to the admitted genealogical table given below :-
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Defendants 1 to 14 are the only persons alive in this family at the time of the institution of the suit. It will be noticed that the common ancestor, Narain Sao, had three sons, namely, Kallar Sao, Mahadeo Sao and Makhan Sao. Defendant No. 12 is the son of Sundar Kuer, the daughter of Mahadeo Sao. This defendant had a full brother named Gopi Nath who died leaving a son who is defendant No. 13 and a widow who is defendant No. 14. Makhan Sao who died before 1902 had seven sons. The eldest son Saukhi had two wives; defendant Nos. 2 and 3 arc the sons through the second wife and defendants Nos. 4 and 5 are, respectively, the wives of these sons. Radhe Sao, the son of Saukhi Sao through his first wife, died sometime before 1902 leaving behind his widow Mosst. Sampat who died in or about 1940. Paduji, the second son of Makhan Sao, died sometime before 1932 leaving behind his widow Deorani Kuer and five daughters. Deorani died in 1934-35 leaving behind the five daughters of whom Jamuna defendant No. 10 and Janki defendant No. 11 were alive at the time of the institution of the suit. Defendant No. 9 is the son of Ram Kuer, another daughter of Paduji; and defendant No. 8 is the son of another Sampatia, the youngest daughter of Paduji. This daughter had another son named Rajendra Sao who died long ago. None in the branch of Besar Kuer, the second daughter of Paduji was alive at the time of the institution of the suit. Mohan Lal (defendant No. 1) is the son of Saduji the third son of Makhan Sao. His fourth son, namely, Gulabji, had a son named Prabhuji. Saudagarji, the fifth son of Makhan, died leaving a widow named Bifo who died in 1938. Miranji, the sixth son of Makhan Sao, died in 1902 leaving widow Mosst. Kuer who died in 1914. Parmeshwar Sao, the youngest son of Makhan Sao, died in June, 1929, leaving two sons Chhathu and Raghunath (defendant No. 6). Chhathu died in 1939-40 leaving a widow named Mosst. Resam Kuer (defendant No. 7). Kallar Sao, the eldest son of Narain Sao, died on the 24th September, 1902, without leaving any issue or widow and he was the exclusive owner of the suit properties, having separated from Mahadeo Sao and the other defendants of Makhan Sao long before. Kallar executed a registered will on the 21st July, 1902 in respect of the suit properties and other properties. Saduji and Parmeshwarji were the executors of the will, and they took out probate from the Court on the 13th June, 1903 in respect of this will.
3. The plaintiff was the tenant for some time past of the southern kita of holding No. 101and also about one half of holding No. 96. He purchased the shares of Mosst. Jamuna and Mosst. Besar, two daughters of Paduji in the two kitas of holding No. 101 under a registered sale deed dated the 18th September, 1941 and the share of the other, two daughters, namely. Ram Kuer and Mosst. Sampatia in these kitas from their heirs under a registered sale deed dated the 26th September, 1941. He also purchased the share of the heirs of Mahadeo Sao in both the kitas under another registered sale deed dated 7th January, 1950, and the entire share of Raghunath, son of Parmeshwarji, and Resam Kuer, widow of Chhathu, in the two kitas under a registered sale deed dated 13th October, 1940.
Mosst. Sampat alias Sampatia sold the share of Parbhuji, claiming to have been married to him in sagai form, to Mosst. Deoki Kuer, wife of Ganesh Lal under a registered d
