Madras High Court
Hamsa Patel And Ors. vs S. Balakrishnan And Anr. on 31 July, 1987
Equivalent citations: (1989)1MLJ57
JUDGMENT S.A. Kader, J.
1. The appeals in A.S.Nos.623 and 875 of 1980 arise out of the judgment and decree of the Court of the Subordinate Judge, of Coimbatore in O.S. No. 412 of 1977. The fifth defendant therein is the appellant in A.S. No. 623 of 1980. The defendants 1 and 2 therein are the appellants in A.S. No. 875 of 1980. C.M.A. No. 430 of 1980 is against the order and decretal order of the learned Subordinate Judge, Coimbatore in I A. No. 1420 of 1978 in O.S. No. 412 of 1977. The petitioner/5th defendants is the appellant. C.MA. No. 452 of 1980 is against the order and decretal order of the said subordinate Judge in IA. No. 213 of 1978 in O.S. No. 412 of 1977. The petitioners/defendants 1 and 2 are the appellants. C.M.P. No. 4891 of 1985 has been filed by the appellant in A.S. No. 623 of 1980 for reception of additional evidence.
2. This is a suit for recovery of possession of the plaint schedule property, for arrears of rent and for damages for use and occupation on the following averments: The plaintiffs are the owners of the site, more particularly described in the schedule to the plaint. The late G.M. Patel, the father of the defendants 1 and 2 took the property on lease from the plaintiffs for running a business under the name Diesel (India) and was in possession till his death as lessee. The monthly Rent was Rs. 300 which has subsequently been enhanced to Rs. 375, As the said G.M. Patel fell into arrears the plaintiffs filled O.S. No. 50 of 1975 on the file of the Subordinate Judge, of Coimbatore for recovery of arrears of rent. Pending suit G.M. Patel died on 31.3.1975 and the defendants 1 and 2 and their mother were impleaded as heirs and legal representatives (defendants 2 to 4). The suit was decreed against the assets of the late G.M. Patel in the hands of defendants 2 to 4 and a personal decree was passed against defendants 3 and 4 therein who are defendants 1 and 2 herein. The defendants 1 and 2 have been conducting the business of their father and paying the property tax in respect of the superstructure which belonged to their father. They again failed to pay the rent subsequent to 31-12-1974 and sub-leased portions to strangers, who are defendants 3 and 4 herein. The registered notice sent by the plaintiffs was returned unserved, and the plaintiffs caused to issue notice by certificate of posting. As there was no response from defendants 1 and 2 the plaintiffs have filed this suit for possession, arrears of rent and for damages for use and occupation.
3. The defendants 1 and 2 contended that their father G.M. Patel has, during his lifetime, bequeathed his business Diesel (India) and the leasehold interest and the superstructure in the scheduled property in favour of his daughter-in-law, who has thereupon been impleaded as the fifth defendant.
4. The defendants 1 and 2 raised the following contentions: They admitted the lease of the vacant site in favour of their father late G.M. Patel under a registered deed dated 12-1-1957 and his running of the business Diesel (India)therein. It was the late G.M. Patel, who put up the construction therein at a cost of Rs. 30,000 to Rs. 40,000 and they are now worth Rs. 75,000. Till his death in March, 1975, the late G.M. Patel was in occupation of the property as a lessee. The lease conferred upon him the right to sublet the premises. The rent originally was Rs. 145 per month but was subsequently raised to Rs. 300.But, it is denied that it was raised to Rs. 375. According to these defendants, the late G.M. Patel during his lifetime bequeathed the business, the superstructure and the leasehold interest to his daughter-in-law by name Mrs. Hamsa Patel and she was, therefore, a necessary party to the suit. There was no relationship of landlord and tenant between the plaintiffs and these defendants. There is no scope for the plaintiffs to make any claim against these defendants. They therefore prayed for the dismissal of the suit.
5. The defendants 3 and 4 remained absent and were set exparte.
6. The fifth defendant in her separate written statement raised the same contentions as those raised by the defendants 1 and 2 and claimed that she was entitled to the benefit of the Madras City Tenants' Protection Act and prayed for directing the plaintiffs to sell the suit property to her on a value to be fixed by the Court. She also agreed to pay the rent legally due.
7. IA. No. 213 of 1978: The defendants 1 and 2 who contended in their written statement that there was no jural relation-ship of landlord and tenant between the plaintiff and the defendants 1 and 2, filed this application under Section 9 of the City Tenants' Protection Act. They contended that in case the Will executed by their father was found not true, and the fifth defendant is not entitled to the estate of the late G.M. Patel, these petitioners defendants 1 and 2 are entitled to the leasehold rights and to purchase the suit property under Section 9 of the City Tenant's Protection Act. They therefore prayed for directing the plaintiffs to sell the suit site to them.
8. The plaintiffs contended in their counter that the petitioners cannot be allowed to blow hot and cold at the same breath. When they have come forward with the case that the fifth defendant is the legatee under the Will executed by the late G.M. Patel and has become the owner of the superstructure they cannot ask the Court to assume that defendants 1 and 2 are the tenants and direct sale of the property to them.
9. I.A. No. 1420 of 1978: This is an application by the fifth defendant under Section 9 of the City Tenant's Protection Act. Claiming the lease hold right over the scheduled property and the superstructure under the Will executed by her father-in-law the late G.M. Patel, she contended that she was a tenant entitled to the benefit of the Madras City Tenant's Protection Act and offered to purchase the demised site under the Provisions of Section 9 of the said Act.
10. The plaintiffs 1 and 2 in their counter denied that she was a tenant within the meaning of the Madras City Tenant's Protection Act or entitled to the benefit of the said Act.
11. On the above pleadings, the following issues were framed for trial:
1. Whether the defendants 1 and 2 are not the plaintiffs' tenants liable to pay the arrears of rent and deliver possession of the property to the plaintiffs?
2. Whether the Will dated 11.4.1974 alleged to have been executed by late G.M. Patel is true, valid and binding on the plaintiffs?
3. Whether the 5th defendant gets any right to superstructure and the leasehold rights by virtue of the alleged Will?
4. Whether the defendants were ever in possession of the property as tenant, under the plaintiffs?
5. Whether the defendants are entitled to benefits of the City Tenant's Protection Act?
6. Whether defendants 3 and 4 are not tenants under defendants 1 and 2?
7. What is the value of the superstructure?
8. To what relief the plaintiffs are entitled?
12. The learned Subordinate Judge held that the defendants 1 and 2 are not the tenants of the plaintiffs, but, they are liable to pay the arrears of rent and damages for use and occupation as heirs of the quandum tenant G.M. Patel and deliver possession of the suit site. The Will dated 11.4.1974 purported to have been executed by the late G.M. Patel was found not true, valid and binding on the plaintiffs and the fifth defendant is not entitled to any right there under. The defendants 1,2 and 5 were held not entitled to the benefit of the City Tenants' Protection Act. The learned Subordinate Judge also held that the defendants 3 and 4 are not sub-tenants. He fixed the value of the superstructure at Rs. 15,000. In the result, the court below directed delivery of possession of the suit property to the plaintiffs and passed a decree for Rs. 9,000 being the arrears of rent from 1.1.1975 up to 31.12.1976 and Rs. 1487.50 being damages for use and occupation from 1.1.1977 to 29.4.1977 and also for future damages at Rs. 375 per month. The plaintiffs are also directed to deposit a sum of Rs. 15,000 as the amount of compensation for the superstructure. I A.Nos.213 and 1420 of 1978 were dismissed, but, without costs. Aggrieved thereby the fifth defendant has preferred A.S. No. 623 of 1980 and C.M A. No. 430 of 1980 while defendants 1 and 2 have preferred A.S. No. 875 of 1980 and C.M A. No. 452 of 1980.
13. The points that are canvassed before me and which arise for consideration are:
1. Whether the Will dated 17.4.1974 is true?
2. Whether the bequest of the leasehold interest is valid in law?
3. Whether the defendants 1 and 2 are entitled to the benefits of S.9 of the City Tenant's Protection Act?
14. Point 7: The plaintiffs are the owners of the vacant site more particularly described in the schedule to the plaint. The father of defendants 1 and 2 and father-in-law of the fifth defendant, late G.M. Patel took this site on lease from the plaintiffs and their brother by and under the original of Ex.B.1 registered deed of lease dated 12.1.1957. The said G.M. Patel purchased the superstructure that was in the land from the previous tenant and subsequently put up other structures. Admittedly, therefore, the superstructures found on the suit site belonged to late G.M. Patel. The fifth defendant claims the leasehold interest in the scheduled site and ownership of the superstructure therein ^ by and under an unregistered Will purported to have been executed by her father-in-law late G.M. Patel under Ex.B.5 dated 11.4.1974. The plaintiffs challenge the truth of this Will and the question which arises for consideration is whether the Will is true.
15. It is strenuously contended by the learned Counsel for the fifth defendant/appellant in A.S. No. 623 of 1980 that the plaintiffs are not persons having interest in the estate of late G.M. Patel and they are not, therefore, entitled to challenge the truth of the Will purported to have been executed by the late G.M. Patel and the Court cannot entertain the plaintiffs challenges. This is too wide a proposition to be accepted. As pointed out by this Court in Jayakumar v. Ramaratnam (1972) I M.L.J.4 at pages 6 and 7 any person having even the slightest interest in proceedings of this kind should be encouraged to intervene and assist the Court in arriving at a proper and just decision before the Court grants probates, which has far-reaching consequences upon the valuable rights of the citizens. The plaintiffs are the owners of the suit site and they have filed this action in ejectment. The fifth defendant claims right to purchase the site from the plaintiffs under Section 9 of the Madras City Tenant's Protection Act, hereinafter referred to as the Act, by virtue of the Will purported to have been executed by her father-in-law, the late G.M. Patel. The plaintiffs have, therefore, sufficient interest to challenge the truth of the Will so as to deny the fifth defendant's right to purchase the vacant site.
16. Further, a Will is one of the most solemn documents known to the law. By it a dead man entrusts to the living the carrying out his wishes, and as it is impossible that he can be called either to deny his signature or to explain the circumstances in which it was executed, it is essential that trust-worthy and effective evidence should be given to establish the truth of the Will. In every case, therefore, the Court is bound to be satisfied with regard to the genuineness of the Will that is set up. The burden of proving due-execution is upon the person propounding the Will and he must satisfy the conscience of the Court that the instrument propounded is the last will of a free and capable testator. Besides adducing disinterested satisfactory and sufficient evidence about the execution of a Will, a propounder must remove all legitimate suspicion which may exist on account of the surrounding circumstances about the execution of the Will and the mental capacity of the testator and the trust-worthiness of the evidence adduced is to be judged in the light of the surrounding circumstances and not separately from them. Where a Will is unnatural, unreasonable and improbable, it calls for a rigorous scrutiny. A fortiori where the Will besides being in officious is unregistered or there is long delay in applying for probate or there is long delay in producing it, very strict and rigorous proof must be produced and the court must scan the contents carefully before giving effect to them.
17. Ex.B.5 is the unregistered Will purported to have been executed on 11.4.1974 by late G.M. Patel, who died on 31.3.1975 bequeathing almost all his estate in favour of his daughter-in-law, the fifth defendant herein to the total exclusion of his wife and his son. In order to prove the truth of the Will, the fifth defendant, who is the propounder of the Will, has examined herself as D.W.1 and one of the attestors to the Will as D.W.2. D.W.I feigns total ignorance about the execution of the Will and according to her, she came to know about the Will only a month after the death of her father-in-law. She could not even explain how the several sheets of the Will, which, according to the attestor D.W.2. were pinned together were pasted with cloth on one side and bound in a book form with the edges trimmed. It is admitted by her that her father-in-law used to talk with her about all important matters, but, strangely enough, he has not spoken to her about this Will nor has even D.W.1, about the Will, though he claims to have met her several times thereafter. We are left only with the testimony of D.W.2 as regards the execution of that Will. The other attestor Dr. Srihari has not been examined and no explanation has been offered for his non-examination. D.W.2 would candidly admit the difference in the signature of G.M. Patel and discontinuity in his signature regarding 'G' in page 4 in Ex.B.5. It is pertinent to note that the signatures of the attesting witnesses in Ex.B.5 Will are very fresh and brighter than the signatures of the testator G.M. Patel and this gives rise to the suspicion that the attestors might have affixed the signature long after, probably after the sheets were pasted with cloth on one side. It is in this connection the non-examination of the other attestor assumes importance. The Will is typewritten and there is no evidence as to who typed the matter and under whose instructions. In the circumstances, the impression is unavoidable that the propounder has failed to let in satisfactory and sufficient evidence about the execution of the Will.
18. It is the admitted cases of D.W.1 that she came to know about the Will a month after the death of her father-in-law, who died on 31.3.1975. But, the Will has been produced for registration only three years later in 1978 and here again, no explanation is forthcoming for this inordinate delay. It is further admitted by D.W.1 that the Will was not produced in any other forum till now and it was all along in her possession. It is now contended on behalf of the fifth defendant/appellant in A.S. No. 623 of 1980 that the Will has been produced before the various executive authorities for change of registry and other purpose and C.M.P. No. 4891 of 1985 has been filed for reception of additional evidence in proof of the same. Though 23 documents are filed, the learned Counsel for the appellant relied upon only document Nos.1,7 to 11 and 14. There is no objection to the reception of the same and they are received and marked as Exs.B.8 to B.14. But, these documents do not in any way advance the case of this appellant. Ex.B.8 is the order of the Tahsildar, Borivli, Bombay for transfer of the registry. Exs.B.9 to B.11 are extracts from the property registry card for change of registry issued by the Survey Superintendent, they no doubt refer to the Will of late G.M. Patel as will-affidavit. 'But, it is doubtful whether the original Will has been produced before these authorities. If any document is produced before any governmental authority, the seal of the office will be affixed on the document. There is no such seal in Ex.B.5. In all probability, therefore, some copies have been produced before these offices and this is consistent with the admission made by D.W.I that she was in possession of the Will all through till it was produced into the Court below. Hence Exs. B.8 to B.11 cannot lead to the inference that Ex.B.5 Will is a genuine one. Ex.B.12 is subsequent to the suit while Exs.B.13 and B.14 are subsequent to the disposal of this suit in the court below. No reliance can be placed thereon. The fact remains that the will has seen the light of the day only after the institution of this suit.
19. There is another important aspect. Even during the life time of G.M. Patel, the plaintiffs have filed a suit in O.S. No. 50 of 1975 on the file of the Subordinate Judge of Coimbatore for arrears of rent. Pending suit Mr. G.M. Patel died whereon his wife and his sons defendants 1 and 2 herein have been brought on record as defendants 2 to 4 in the said suit. The defendants 1 and 2 herein, who are defendants 3 and 4 therein did not raise even the whisper of an averment that their father had left behind a Will bequeathing almost all his estate in favour of the fifth defendant herein and that the fifth defendant as legatee is the proper party to be impleaded. On the other hand, they have claimed in that suit to be the heirs of late G.M. Patel to be in possession of the suit property and to be carrying on the business. A decree has been passed against the estate of G.M. Patel in the hands of defendants 2 to 4 therein i.e., his wife and two sons and a personal decree has also been passed against defendants 3 and 4 therein, who are defendants 1 and 2 herein. If, as a matter of fact, the Will had been in existence at that time, the defendants 1 and 2 would not have failed to mention that fact in that suit and get the fifth defendant impleaded as a party as they have done in this suit. This circumstance raises a reasonable doubt as to whether the Will was in existence at the time of the earlier suit in O.S. No. 50 of 1975.
20. Then to the nature of the Will. The testator late G.M. Patel has set out his properties in detail in the Will and they are of ten items. They are set out as A, B1, B2, B3, C,D,E,F,G,H, in para 4 of the Will. The property in item A which is a vacant land measuring 7901 s.ft. in Greater Bombay has been bequeathed to six persons viz., Mr.Kamalash Nagjibhai Patel, Mr. Vikram Nagjbhai Patel of Ahmedabad and Mr. Bhupendra Dahyabhai Patel and Mr. Hemendra Dahyabhai patel of Santacruz in Bombay and his daughter in law, the fifth defendant herein while all the other items have been bequeathed exclusively to the fifth defendant. It is stated in the Will that the aforesaid five legatees excluding his daughter-in-law have rendered much help to the testator and hence he wanted to bequeath some properties to them and accordingly be bequeathed the A item to those five legatees and his daughter-in-law. All the remaining properties, as already stated, have been bequeathed absolutely to the fifth defendant, who is the wife of the first defendant. The result is, the wife of the testator and all his four sons of whom two are abroad have been totally disinherited. He has not made known the reasons for disinheriting his sons, but, the reasons for disinheriting his wife is that her health is uncertain and, therefore, she may not be in a position to manage his properties profitably. This is hardly a reason for disinheriting an infirm wife. If the wife is ill, that itself is a reason for bequeathing some additional properties to her for her maintenance and to look after her health. Strangely enough G.M. Patel is said to have disinherited his wife because she was ill. No man in his senses will allow his wife and that too a sick wife to be deprived of her share of inheritance and throw her at the mercy of her daughter-in-law. Further, the bequest of almost all the estate in favour of one daughter-in-law to the exclusion of other daughter in lawamounts to the preferring of the one son to the others, which cannot be expected of a father, who is all love and affection towards all his sons. The provisions of this Will are, therefore, unnatural, unreasonable and in officious and this grave suspicion has not been satisfactorily explained.
21. For the foregoing reasons I agree with the learned Subordinate Judge and hold that Ex.B.5 unregistered Will purported to have been executed by late G.M. Patel is not true. This point is answered against the appellants.
22. POINT 2: It is urged by the learned Counsel for the plaintiffs 1 and 2 that the bequest of the leasehold interest in the scheduled vacant site by late G.M. Patel in favour of his daughter-in-law, the fifth defendant is not valid in law and this contention has found favour with the court below. Reliance is sought to be placed on the decision Surendra Vikram Singh v. Munia Kunwar A.I.R. 1944 Oudh 65. But, the said decision does not seem to be an authority for the proposition that a leasehold interest cannot be the subject matter of a bequest. A leasehold right in immovable property is a right in property and hence it is transferable, assignable and bequeath able. It can rightly be the subject matter of a bequest. It is then contended by the learned Counsel for the plaintiffs that the right of late G.M. Patel to purchase the site leased out to him under Section 9 of the City Tenants Protection Act is an inchoate or a contingent right, it is not a right in property and as such it is not bequeathable. But, it must be remembered that what has been bequeathed under Ex.B.5 Will is not the right to purchase the site under Section 9 of the Act, but, the leasehold right in the demised land and hence it is not invalid. I hold, therefore, that the bequest of the leasehold right is not void in law. However, in view of my finding that the Will itself is not true, this question does not assume any importance. This point is found against the plaintiffs/respondents 1 and 2.
23. POINT 3: It is contended by the defendants 1 and 2 that in case the fifth defendant is held not entitled to the benefits of the Act, they, as heirs of late G.M. Patel, are entitled to the benefit of Section 9 and to purchase the site. In the written statement the defendants 1 and 2 have come forward with a categorical case that there is no relationship of landlord and tenant between the plaintiffs and these defendants and that there is no scope for the plaintiffs to make any claim against these defendants. Having taken such a stand that there is no jural relationship of landlord and tenant between the plaintiffs and these defendants, it is not open to them to turn round and claim the benefits of the Act. It is well-settled that a party to a litigation cannot be allowed to approbate and reprobate, to blow hot and cold at the same breath. The Court below has, therefore, rightly held that the defendants 1 and 2 are not entitled to the benefits of the Act.
24. POINT 4: This points does not arise for consideration in view of my finding on point 1 that the will in favour of the fifth defendant is not true. As however elaborate arguments have been advanced on this matter, I shall deal with this question on the assumption that the will is true. The question for consideration is whether the fifth defendant, as legatee under Ex.B.5 will from the original tenant late G.M. Patel is a tenant within the meaning of the City Tenant's Protection Act.
25. Section 2(4) of the Act as it originally stood ran thus:
tenant' means tenant of land liable to pay rent on it, every other person deriving title from him and includes persons who continue in possession after the termination of the tenancy.
This definition underwent radical change by the Madras Act XIII of 1960 and the substituted definition ran thus:
"Tenant" in relation to any land:
(i) means a person liable to pay rent in respect of such land under a tenancy agreement express or implied, and
(ii) includes:
(a) any such person as is referred to in Sub-clause (i) who continues in possession of the land after the determination of the tenancy agreement, and (b) the heirs of such person as is referred to in Sub-clause (i) or Sub-clause (ii)(a); but does not includes a sub-tenant or his heirs.
There has been further amendments of the definition by the Act 4 of 1972 and the Act 24 of 1978 and the section now is:
(4) Tenant in relation to any land:
(i) means a person liable to pay rent in respect of such land under a tenancy agreement express or implied, and
(ii) includes:
(a) any such person as if referred to in sub-Clause (i) who continues in possession of the land after the determination of the tenancy agreement;
(b) any person who was a tenant in respect of such land under a tenancy agreement to which this Act is applicable under Sub-section (3) of Section 1 and who or any of his predecessors-in-interest had erected any building on such land and who continues in actual physical possession of such land and building not withstanding that:
(1) Such person was not entitled to the rights under this Act by reason of the proviso to Section 12 of this Act as it stood before the date of the publication of the Tamil Nadu City Tenant's Protection (Amendment) Act 1972, (Tamil Nadu Act 4 of 1972), (2) a decree for declaration or a decree or an order for possession or for similar relief has been passed against such person on the ground that the Proviso to Section 12 of this Act as it stood before the date of the publication of the Tamil Nadu City Tenant's Protection (Amendment) Act 1972 (Tamil Nadu Act 4 of 1972) disentitled such person from claiming the right under this Act and
(c) the heirs of any such person as is referred to in Sub-clause (i) or Sub-clause (ii)(a) or (ii)(b) but does not include a sub-tenant.
The definition of 'tenant' as it originally stood before the Amendment Act XIII of 1960 in duded all persons deriving title from a tenant i.e., both the heirs of a tenant and assignees from him. The amendment introduced by the Act XIII of 1960, by deleting the words 'every other person deriving title from him' excluded from the definition of 'tenant' assignees and transferees from the original tenant. But, the heirs of the tenant were included in the definition by a specific provision to that effect in Sub-clause (2)(b). As pointed out by M. Natesan, J. in Kuppu Bai v. Rajagopal Nattar and Anr. (1969) M.L.J. 541:
Apparently the legislature felt that the privilege granted was being misused by speculators and so decided to continue the benefit of the Act to the tenants proper and tenants who entered on land under tenancy agreement express or implied and continued on the land after the expiration of the tenancy and the heirs of such tenants. Evidently the legislature does not want a tenant to profit on a privilege granted in violation of the fundamental rights of the owner of the land and at his expense; the legislature would limit it to the equity and need of the tenant.
26. Thus, under the old definition, all persons who had derivative title from the original tenant can claim to be tenants but they could no longer do so under the new definition, excepting in the case of heirs of the original tenant.
27. The position is the same even under the present definition after the amendments introduced by the Act 4 of 1972 and Act 24 of 1973. However, under Section 4(ii)(b) introduced by the recent amendment, an assignee of the leasehold right of the original tenant who has put up the superstructures can claim to be a tenant if there was an agreement of tenancy between the assignee and the landlord as where the landlord recognised the assignee and receives rent from him.
28. The fifth defendant herein claims derivative title over the leasehold right in the scheduled site and superstructures therein from the original tenant late G.M. Patel as his legatee under Ex.B.5 Will. She can claim to be a tenant under Section 4(ii)(b) only if there is a tenancy agreement between her and the plaintiffs, who are the landlords. But, there is no such agreement. The plaintiffs have not recognised her as their tenant at any point of time nor did they receive any rent from her. The fifth defendant is, therefore, not entitled to the benefits of Section 4(ii)(b) and claim to be a tenant within the meaning of the Act. The only question is, whether the fifth defendant as legatee under Ex.B.5 Will can claim to be an heir of the original tenant within the meaning of Section 4(ii)(c) of the Act.
29. There is no definition of the term 'heir' in the Act. We have, therefore, to look into the ordinary, natural meaning of the word. According to Chambers Twentieth Century Dictionary 'heir' means "one who inherits anything after the death of the owner; a child; offspring.". As per Webster's New College Dictionary 'heir' means "one who inherits or is entitled to inherit property". In Ramanatha Aiyar's Law Lexicon, 'heir' is defied-as a "person who inherits or may by law inherit." At common law 'heir' is "he who is born in lawful wedlock and upon whom the law caste the estate in lands, tenements immediately on the death of the ancestor" "An 'heir' is one who takes by descent'. Thus an heir is the person who inherits the properties of the deceased, i.e., one who takes the properties of the deceased by descent and it cannot include a legatee.
30. The learned Counsel for the appellants placed reliance on the recent judgment of V. Ramaswami, J. in Ramiah Nattar v. Jambagath-ammal and Ors. 1977 T.N.LJ.57 where it was held that the expression 'heir' in Section 2(aa) of the Tamil Nadu Cultivating Tenants' Protection Act includes a legatee from the cultivating tenant. The learned Judge has followed the decision of a Division Bench of the Punjab High Court in Gulzara Singh v. Smt. Tej Kaur . That is a decision rendered under Section 22 of the Hindu Adoptions, and Maintenance Act of 1956. The appellant therein contended that he was not bound to maintain the respondent, Tej Kaur, although she was the dependant of the deceased on the ground that the appellant got the estate of the deceased under a Will and not by inheritance and cannot, therefore, be considered to be his heir within the scope of Section 22(1) of the Hindu Adoptions and Maintenance Act. Section 22 runs thus:
(1) Subject to the provisions of Sub-section (2), the heirs of a deceased Hindu are bound to maintain the dependants of the deceased out of the estate inherited by them from the deceased.
(2) Where a dependant has not obtained, by testamentary or interstate succession, any share in the estate of a Hindu dying after the commencement of this Act, the dependant shall be entitled, subject to the provisions, of this Act, to maintenance from those who take the estate.
(3) The liability of each of the person who takes the estate shall be in proportion to the value of the share or part of the estate taken by him or her.
(4) Notwithstanding anything contained in Sub-section (2) or Sub-section (3), no person who is himself or herself a dependant shall be liable to contribute to the maintenance of others, if he or she has obtained a share or part the value of which is, or would, if the liability to contribute were enforced, become less than what would be awarded to him or her by way of maintenance under this Act.
The policy behind Section 22 of the Act is that the estate of the deceased is liable for the maintenance of the dependants of the deceased and this is made abundantly clear in Clause (2) of Section 22 where it is laid down that the dependant shall be entitled subject to the provisions of this Act to maintenance from those who take the estate. The words "those who take the estate" includes not only heirs but also legatees. In the light of the predominant idea or general purpose of the enactment the learned Judges held that the word 'heir' in Clause (l) in Section 22 includes a legatee. This is what the Bench has observed:
Before considering and attempting to discover the exact and precise meaning and effect of Section 22 as intended by the Parliament, I may state that this section has to be construed with reference to the leading or predominant idea or general purpose of the whole enactment. A statute is passed as a whole and not in sections and it may well be assumed to be animated by one general purpose and intent.
It is thus not safe to adopt the process of etymological dissection and after taking words out of their context and applying definitions given by lexicographers to proceed to construe the statute on the basis of such definitions. Parliamentary enactments must be construed as a whole and the meaning attributed to words should, as a general rule, be inspired by the context and the nature and object of the subject-matter, for, the words may be enlarged or restricted to harmonise with the provisions of the statute.
*** *** *** *** *** *** The dominant idea which, in my opinion, clearly manifests itself in Sections 22 and 23 is that whosoever gets the estate of the deceased or a part of it must in proportion get, along with it, a corresponding obligation or the burden of maintaining the dependants of the deceased. This liability is in no way affected by the circumstance that the estate has devolved in whole or in part by means of a will.
*** *** *** Interpreting Section 22 in the light of the foregoing discussion, the word 'heir' must, in my opinion, be construed in a broad and general sense so as to include all those on whom the estate of deceased devolves whether on intestacy or by means of a testamentary instrument like will. This interpretation, which is fully supportable by a reference to all the sections of Chap. III of the Act read together, is also calculated to promote and effectuate the cardinal legislative idea or purpose to end or at least to remedy the evil of neglect of Hindu women by their husbands and after their husband's death by those who may succeed to or inherit their husband's estate, whereas by adopting the rival interpretation suggested on behalf of the appellant it would not only result in defeating the above purpose but would also come into conflict with the rule that all the provisions of an Act should be read and construed as a whole so that all the cognate provisions are harmonised; and as a matter of fact this rival interpretation would also tend to give rise to certain anomalies which, in my opinion, cannot easily be attributed to the Parliament.
This decision cannot, therefore, be held to be laying down a general rule that the word 'heirs' includes legatees. The decision of V. Ramaswami J., in Ramiah Nattar v. Jambagathamal and Ors. (1977) T.N.L.J.157 referred to above, holding that the expression 'heir' includes a legatee must be confined to the provisions of the Cultivating Tenants' Protection Act with which the learned judge was dealing and cannot be extended to the provisions of the City Tenants' Protection Act, especially because of the amendment introduced by the Act 13 of 1960 in the definition of 'tenant' excluding an assignee from the original tenant from the purview of that definition. A bequest is akin to an assignment, only that it takes effect on the death of the testator and to hold that 'heirs' includes legatees would be defeating the very purpose of the amendment. Section 9 of the City Tenant's Protection Act is expropriatory in character, for, it makes a deep inroad into the fundamental right of an owner and the expression 'tenant' has, therefore, to be strictly construed. In my view, there is no scope for interpreting the term 'heirs' as including legatees so as to enlarge the definition of 'tenant' in the City Tenants' Protection Act. I hold, therefore, that the fifth defendant, who claims as the legatee from the original tenant late G.M. Patel is not a "tenant" within the meaning of the City Tenants' Protection Act and is not entitled to claim the benefit of Section 9 of the said Act. The point is found against the appellant.
31. In the result, the appeals, in A.S. Nos.623 and 875 of 1980 fail and are dismissed with costs. C.MA.Nos.430 and 452 of 1980 are also dismissed, but, without costs. C.M.P. No. 4891 of 1985 is allowed in part.