Patna High Court
Babulal Mandal And Ors. vs Sm. Abala Bala Dasya And Ors. on 17 March, 1954
Equivalent citations: AIR1955PAT126, AIR 1955 PATNA 126
JUDGMENT Sinha, J.
1. This appeal is on behalf of defendants 1, 4, 5 and 6 and arises out of a suit brought by the plaintiff, Abala Bala Dasya, widow of Ashutosh Mandal, for declaration of title to and for recovery of possession of properties mentioned in schedule 2 of the plaint, and also for mesne profits.
2. One Ananta Mahata had two other brothers, Darpa and Rajib. They were all separate, and, in this litigation, we are concerned with the property left by Ananta Mahata. Ananta Mahata had made a will on 29-7-1931 giving four annas share in his properties to his wife, Baroda and twelve annas to Thakmoni, widowed daughter-in-law by his predeceased son, Hari Ram. He died some time in 1934 leaving behind him Baroda, the widow, Thakmoni, the daughter-in-law, the plaintiff, widow of his grandson, Asho, and Darpa's sons and grandsons, defendants 7 and 8 to 11. Defendant No. 12 is the widow of Panu, one of the sons of Darpa. The third brother, Rajib, had no son but had only two daughters, whose husbands are defendants 4 and 5. After the death of the testator, Ananta Mahata, the widow, Baroda, and the daughter-in-law, Thakmoni, propounded the will and? prayed for letters of administration with a copy of the will annexed.
Caveat was entered, amongst others, by Abala Bala Dasya, the plaintiff. During the pendency of the proceedings for letters of administration, Baroda died and for some time the proceeding was continued by Thakmoni alone. Thakmoni was murdered in January, 1940 and her brother, Babulal Mandal, defendant No. 1, was substituted in her place on 15-6-1940. A petition of compromise was filed on 12-11-1940 between the present defendant No. 1, on the one hand, and Saroda Mandal, defendant No. 7 and Panu Mandal, husband of defendant No. 12. The Court refused to record the compromise, and the compromise petition was directed to be kept on the record. Letters of administration with a copy of the will annexed were ordered to be issued to defendant No. 1 on 23-12-1940.
The present plaintiff filed an appeal to this Court (First Appeal No. 18 of 1941) against the decree of the Subordinate Judge granting letters of administration to Babulal Mandal. From the order-sheet of the High Court, which we sent for and perused, it appears that the parties were heard and judgment had been reserved. When the judgment was about to be delivered, there was a prayer for postponement of the delivery of the judgment, and, on 5-5-1943, this Court allowed the present defendant No. 1 to withdraw the application for letters of administration and he was to pay costs to the appellant of that appeal, the present plaintiff. It was further said that defendant No. 1 would make no further application for grant of letters of administration with a copy of the will of Ananta Mahata annexed.
According to the case of the plaintiff, after the High Court order, there was apprehension of dispute between the plaintiff, on the one hand, and the heirs of Darpa, on the other, and in 1350 Fasli, corresponding to 1943, a deed, called a deed of settlement, was executed by Fanu, deceased husband of defendant No. 12, Saroda, defendant No. 7, and Pashupati, defendant No. 8. By this document, the lands mentioned in schedule 2 of the plaint were given to the plaintiff and the plaintiff came in possession of these lands. Defendant No. 1 and sons of defendants 4 and 5 forcibly dispossessed the plaintiff by harvesting the paddy grown by her. Panu was also murdered in connection with that dispute. The dispute led to criminal cases and ultimately the plaintiff had to bring the present suit. Defendants 2 to 5 are subsequent transferees from defendant No. 1 in respect of some of the lands in dispute. According to the plaintiff, these transfers were fraudulent and collusive and were made just to give colour of genuineness to the defendant's claim.
3. Defendants 1 and 5 filed a written statement, which was adopted by defendants 2, 4 and 6. Defendant No. 6 is wife of defendant No. 4. Their defence was that the deed of settlement in favour of the plaintiff gave her no rights; that the order of the High Court was without jurisdiction and did not in any manner affect the validity of the order of the Subordinate Judge, passed in favour of defendant No. 1 granting him letters of administration with a copy of the will annexed; that the order of the High Court was a conditional order and the withdrawal of the application depended upon payment of cost and the cost not having been paid, the appeal in the High Court would be deemed to be pending; and that the order of the Subordinate Judge, in consequence, would be binding upon the parties. They also contended that the compromise arrived at in the proceeding for letters of administration was a valid compromise binding on the parties. The defendants denied the plaintiff's case of possession and dispossession. It was also contended that defendant No. 1 was entitled to retain possession of the lands under the provisions of Section 53A, Transfer of Property Act.
4. The learned Subordinate Judge decreed the suit and negatived all the defence contentions. On appeal, the learned Additional District Judge has affirmed the decision of the learned Subordinate Judge, and hence this appeal.
5. Mr. Chatterji, on behalf of the appellants, has contended that, in the circumstances, it could not be a case of intestacy and that the First Appeal in the High Court would be deemed to be still pending. He has also submitted that the compromise in the letters of administration proceedings was a good compromise, and the possession of defendant No. 1 is protected under Section 53A, Transfer of Property Act, although the compromise was not recorded by the Court.
6. It is conceded that, if there was no will, the heirs-at-law would have been the sons and grandsons of Darpa, one of the brothers of Ananta Mahata, the testator, namely, defendants 7, 8 and 9 to 11. Both the Courts below have found that the registered deed of settlement gave the plaintiff the properties mentioned in schedule 2 of the plaint, and although, strictly speaking, it was not a deed of settlement, it should be taken to be a deed of gift made by defendants 7 and 8 and Panu, father of defendants 9 to 11 and husband of defendant No. 12. This finding has not been and could not have been challenged. If there was no will, the executants of the deed in question were entitled to transfer the lands in suit to the plaintiff by way of gift. The plaintiff, therefore, will have a good and unassailable title to the lands in suit unless it were shown that the defendants or some of them had a better title to them. Now, the relevant portion of Section 213, Succession Act, runs as follows:
"213(1). No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed."
On a plain reading of this section, it is clear that unless the will has been probated or letters of administration, with the will or with a copy of the will annexed, have been granted, no right under the will can be established by an executor or a legatee. In the present case, defendant No. 1 is not mentioned as a legatee in the will, but he has been substituted in place of the sole surviving legatee, Thakmoni, and, therefore, he would be in the same position as Thakmoni herself. Under this Section 213, therefore, defendant No. 1 cannot establish his title to the property in suit in the absence of a probate of the will or letters of administration.
At one time, it appears, there was a doubt as to whether a defendant to an action is debarred under this Section 213 or its equivalent section in the previous Act, namely, Section 187, from establishing his right, that is to say, whether the prohibition mentioned in this section was confined only to the case of a plaintiff to an action, and there were certain authorities which had accepted the view that a defendant to an action is not debarred from establishing his right to the property under this section even though the will had not been probated or letters of administration had not been granted. That doubt has been set at rest by the Full Bench decision of the Madras High Court in -- 'Ganshamdoss Narayandoss v. Gulab Bi Bai', AIR 1927 Mad 1054 (FB) (A), where it was held, after upsetting the view taken in some of the previous cases, that a defendant resisting a claim made by the plaintiff, as heir-at-law, cannot rely, in defence, on a will executed in his favour when the will is not probated and no letters of administration have been granted and further that Section 187 of the previous Act (10 of 1865), corresponding to Section 213 [of the present Act (39 of 1925), is a bar to everyone claiming under such a will whether as plaintiff or as defendant, although this section does not bar proving of the will for other purposes.
As I have indicated, this decision of the Full Bench follows from the plain language used in Section 213 of the Act. In the present case, defendant No. 1 cannot establish his rights under the will, and, even if the will be admissible in evidence for other purposes, that will be of no use to the defendant No. 1, if he cannot establish his rights under the will and he can disestablish the rights of the plaintiff only if he were to establish his own under the will. As the will is not probated and no letters of administration have been granted, he is debarred from relying upon the will for the purpose of establishing his rights. In that view of the matter, it must be held that the heirs-at-law of the testator, namely, the descendants of Darpa, one of the brothers of the testator, succeeded to the properties of the deceased Ananta Mahata, and that they were entitled to transfer the property in suit to the plaintiff.
7. Mr. Chatterji's nest contention was that the order of the High Court was without jurisdiction and, therefore, the First Appeal in this Court must be deemed to be still pending and the decree of the first Court directing grant of letters of administration to the defendant No. 1 must also be deemed to be a good and valid decree binding on the parties. It was submitted that the provisions of Order 23, Rule 1, Civil P.C., have got no application to a proceeding for probate or for grant of letters of administration. Section 268, Succession Act, says that the proceedings of the Court of the District Judge in relation to the granting of, probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908.
This section is couched in wide terms, but it also says that, so far as the circumstances of the case permit, the procedure prescribed in the Code of Civil Procedure shall apply to a proceeding for probate or for grant of letters of administration. Therefore, although the term of the section is very wide, all the provisions of the Code of Civil Procedure may not apply to a probate proceeding or a proceeding for grant of letters of administration, but the question before us, however, is whether a petitioner or a plaintiff is not entitled to withdraw his application or his suit. Every suitor must have a right to withdraw his suit or his application if there are no fetters provided by law to the contrary. Mr. Chatterji has placed reliance upon certain authorities which I shall consider presently and see whether the wide proposition propounded by Mr. Chatterji has got any substance.
8. The case of -- 'Janakbati Thakurain v. Gajanand Thakur', AIR 1916 Pat 82 (B) was a case where the plaintiff had applied for probate of a will and the defendant had contended that the will was a forgery. Later, a petition of compromise was filed with a prayer that the application for probate might be dismissed without decision. The Court, accordingly, dismissed the suit in terms of the petition of compromise. It was held in that case that the order of the Court below was wrong, and it was observed that there could be no compromise of a probate case in accordance with the terms of the petition of compromise because the main issue in such a case was whether or not the will had been proved. The only effect of the compromise in such a case was to reduce a contentious proceeding into one which was not contentious; but this did not absolve the Court from the task of either granting probate or refusing it, and their Lordships said that Order 23, Rule 3, Civil P.C., read with Section 83, Probate and Administration Act merely meant that in a probate case the Code of Civil Procedure as far as possible, determined the procedure of the Court and that those sections nowhere said that the Court could allow the parties to divide the testator's property without proving the will.
This case is, therefore, no authority for the proposition submitted by Mr. Chatterji. The case of -- Jugeshwar Nath Sahai v. Jagatdhuri Prasad', AIR 1917 Pat 41 (2) (C) also does not improve the position taken up by Mr. Chatterji. In that case also, there was a petition of compromise and the two executors, who had applied for probate, had withdrawn their application and subsequently a fresh application for probate was made by other persons, including one of the executors who had made the earlier application. An objection was taken that, under Order 23, Rule 1, Civil P.C., the earlier application for probate having been withdrawn, the executors were precluded from again making an application for probate, and it was held that an application, for probate cannot be legally disposed of by a compromise. It was further observed that "it is clearly undesirable that if an executor does improperly withdraw an application for probate he should be precluded from again undertaking the discharge of his duty in obtaining the finding of the Court on the genuineness of the will."
No such case has arisen in the present one which is a simple case where a petitioner has been allowed to withdraw his application for letters of administration agreeing not to file an application for letters of administration again.
After defendant No. 1 had withdrawn his application in the High Court and allowed the appeal filed by the plaintiff to be thus disposed of, he has never made an application ever since for grant of letters of administration. If he had made such an application, the matter might have been considered in the light of the authorities on that point. He has chosen not to do so, and it is not necessary for the disposal of the present appeal to hold one way or the other whether the High Court was right or wrong in allowing the withdrawal of the application. The position today is that the will is not probated and the High Court allowed defendant No. 1 to withdraw his application for letters of administration which was the foundation of the decree for letters of administration. When the application was withdrawn, it naturally followed that the decree, which was founded upon that application, was also gone.
Mr. Chatterji has also referred to the case of -- Chandra Kishore Roy v. Prasanna Kumari Dasi', 38 Cal 327. (PC) (D), which is a Privy Council case. In my opinion, the facts of that case were entirely different, and the decision arrived at in that case is not at all relevant to the consideration of the point at issue in the present case. What happened in that case was that a will had been made in favour of the wives and daughters of the testator. When the daughters filed suits for their allowances under the will, the will had not been probated and no letters of administration had been granted. During the pendency of the suits, however, the widow obtained from the District Judge letters of administration with the will annexed. The grant was, however, on appeal, modified by the High Court limiting the grant to the realisation of maintenance allowance provided for by the will for the widow; but before the letters of administration could be recalled and altered the widow died and no modification was formally made in the letters of administration. It was contended that the suits by the daughters could not be maintained with reference to Section 187 of the then Succession Act, corresponding to Section 213 of the present Act, which required that, before the right of a legatee could be established, probate of the will should have been granted. In those circumstances, it was held that the grant of letters of administration with the will annexed amounted to a grant of probate and it was a sufficient compliance with the provisions of Section 187 and further that the subsequent modification of the grant was immaterial. This case, therefore, has no bearing on the present case.
The case of -- 'Ramani Debi v. Kumud Bandhu', 14 Cal WN 924 (E) stands on no different footing. It was a case where it was held that the provisions of Section 10.3, Civil P.C. (14 of 1882), corresponding to Order 9, Rule 9 of the present Code, had no application to an application for probate which was dismissed for default. I would, therefore, hold that there is no substance in the contention that the High Court appeal should be deemed to be still pending.
9. Lastly, it was contended that the compromise in the proceeding for letters of administration arrived at between defendant No. 1 on the one hand, and some of the heirs-at-law of the testator, on the other, was a good and binding agreement and that the possession taken by defendant No. 1 was a possession which should be protected under Section 53A. Transfer of Property Act. In my opinion, there is no substance in this contention. The compromise entered into between the parties was not made an order of the Court and, therefore, the compromise, which affected immovable property worth more than Rs. 100/-, required registration to make the com-promise effective in law. The compromise, therefore, lacked legal form and could not affect immovable property, namely, the lands in suit. It is not contended that the lands in suit are worth less than Rs. 100/-.
Some authorities have, in this connection, been placed before us, namely, -- 'Surja Prasad Sukul v. Shyama Sundari Debi', 14 Cal WN 967 (P) and -- 'Kunja Lal v. Kailash Chandra', 14 Cal WN 1068 (G). So far as the case of -- 'Surja Prasad Sukul (F) is concerned, the compromise in question related to a personal liability, and it was held that a contract for personal liability could be enforced like any other agreement and that such an agreement by which the executors had taken personal liability did not require registration. Therefore, this case is of no use to the appellants in the present case. The other case of -- 'Kunja Lal (G)' stands on no better footing. The facts were entirely different, and it was only observed that a compromise in a probate proceeding cannot be embodied in the order of the Court for the reason that a Court of probate cannot in many instances enforce the terms. Is was also passingly remarked that such a compromise may be enforced by an action if otherwise unobjectionable.
The compromise in the present case, however, suffers from the defect in law that it is not registered. Another case cited was that of --'Kamal Kumari Devi v. Narendra Nath Mukherji', 9 Cal LJ 19 (H). This case has decided that, when all the parties beneficially interested under a will agree to dispose of the estate in a particular manner, when it reaches their hands, such an agreement cannot be said to be a void agreement because in such a case they are dealing with their own property. The question in regard to non-registration was not raised in this case and, therefore, in my opinion, this case also is of no assistance to the appellants. I would, therefore, hold that this contention also is without substance.
10. So far as the other question is concerned, namely, whether defendant No. 1 is protected under Section 53A, Transfer of Property Act, it is equally devoid of any substance. According to the findings of both the Courts below, defendant No. 1 never came in possession of the lands on the basis of the compromise or thereafter before he or the other defendants dispossessed the plaintiff wrongfully. In view of this finding, there is no question of protecting the possession of defendant No. 1 or of the other defendants under the provisions of that section. Mr. Chatterji then argued that the Courts below have not directed their attention to the fact that defendant No. 1 was in possession from before the compromise and, therefore, the case should be remanded for consideration of that point. Section 53A, Transfer of Property Act, says:
"Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
It is submitted that the defendant No. 1 was already in possession of the suit lands from before the compromise, and, being already in possession, continued in possession, in part performance of the contract; & it is thus tried to bring the case within the ambit of the section.
11. It is enough to say, in answer to this contention, that this point, namely, that the defendant No. 1 was in possession of the suit lands from before the compromise, was never taken in the written statement and no such defence was ever raised. Even if this point had been taken, in my opinion, however, the finding of the first Court is definite that there was practically no evidence to show, apart from Ex. A (the compromise), that, prior to the dispossession alleged by the plaintiff, the defendants possessed the disputed lands or any major portion thereof. It is to be noted that defendant No. 1 did not venture to go to the witness-box himself, and the finding, in regard to possession by the defendants, arrived at by the lower appellate Court is sufficient to show that defendant No. 1 or his creatures, namely, defendants 2 to 6, never came in possession of the disputed lands. In that view of the matter, the provisions of Section 53A, Transfer of Property Act, are not attracted.
12. No other point having been argued, I would dismiss the appeal, as being without substance, but without costs.
Misra, J.
13. I agree.