Nathoo Lal vs Durga Prasad

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 59 of 1953

Decision Date: 9 April, 1954

Coram: Ghulam Hasan, Mehr Chand Mahajan, Vivian Bose

In the matter of Nathoo Lal versus Durga Prasad, decided on 9 April 1954, the Supreme Court of India heard the appeal before a bench consisting of Justices Ghulam Hasan, Mehr Chand Mahajan, and Vivian Bose. The judgment was reported in the 1954 All India Reporter at page 355 and later cited in the 1955 Supreme Court Reports at page 51, with a subsequent citation in the 1957 Supreme Court Reference at page 540. The case concerned the interpretation of Hindu law regarding the alienation of immovable property in favour of a Hindu female and examined whether any legal presumption existed that a female donee could not acquire an absolute or alienable interest in the property unless explicitly conferred. The Court observed that it is well settled that no such presumption of law exists; the law does not differentiate between male and female donees, and the fact that the donee is a woman does not diminish the absoluteness of the gift when the conveyance language is sufficient to create an absolute estate for a male. The Court relied upon earlier decisions such as Mohamed Shumsool v. Shewakram (2 I.A. 7), Nagammal v. Subbalakshmi (1947) I.M.L.J. 641, and Ram Gopal v. Nand Lal (AIR 1961 SC 139) in reaching this conclusion.

The appeal arose from Civil Appeal No. 59 of 1953, which challenged the judgment and decree dated 5 April 1950 issued by the High Court of Rajasthan at Jaipur. That decree had modified an earlier decree of the High Court of the former Jaipur State dated 3 March 1949, which itself was rendered on a review application in a second appeal related to a suit for possession of property. The property in dispute originally belonged to a man named Ramchandra, who died without a male heir in 1903. His surviving relatives included his mother Sheokori, his widow Mst. Badni, and his two daughters, Bhuri and Laxmi. An oral will was alleged to have been made by Ramchandra, bequeathing the disputed property to his daughter Laxmi. Following the alleged will, on 6 September 1906, Mst. Sheokori and Mst. Badni executed and registered a deed of gift in favour of Mst. Laxmi, stating that the houses were gifted according to their father's will and directing that the deed be registered in her name. Counsel for the appellant, assisted by a junior, represented the petitioner, while counsel for the respondent, assisted by colleagues, represented the opposing party. The judgment of the Court was delivered by Chief Justice Mehr Chand Mahajan, addressing the legal questions presented and confirming that the female donee’s interest in the immovable property was absolute and alienable, consistent with the established principles of Hindu law.

In the present matter, the record showed that the deceased Ramchandra, who died without a son in 1903, had allegedly left an oral will bequeathing the disputed property to his daughter Laxmi. On 6 September 1906, the two widows of Ramchandra, namely Sheokori and Badni, purported to act in accordance with that oral will and executed a deed of gift in favour of Laxmi, which they also had registered. The deed contained the following statements: the houses were gifted to Laxmi in accordance with their father’s will; the father had purchased the houses, and in his last days he directed the widows to have the gift deed registered in Laxmi’s name; the father warned that any of their relations, kinsmen, or creditors who disputed the gift would suffer divine punishment; the widows declared that, in compliance with their sacred duty, they had executed the deed for Laxmi and that no other person had any claim over the house; they further added that Laxmi could deal with the house as she wished and that anyone who tried to recover land that had been gifted by the deceased or his ancestors would live in hell as long as the sun and moon shone. The language of the deed was somewhat confused, and the scribe did not use precise legal terminology to express the widows’ directions. Nevertheless, there was no doubt that the two executants were not transferring to Laxmi any title that they themselves possessed; rather, they were merely acting as executors of the oral will and placing the legatee in possession of the property. The fact that the widows themselves had no title to the property was evident from the participation of Sheokori in executing the gift deed, since the estate of Ramchandra could not have devolved upon her. The second daughter, Bhuri, died in 1907, and the widow Badni died in 1927. Laxmi remained in possession of the property until her death in 1928. After Laxmi’s death, her husband Balabux, as her heir, mortgaged the house on 5 July 1930 to the defendant appellant Nathoo Lal, and subsequently, on 5 October 1933, sold the property to him and placed him in possession. Balabux thus remained in possession of the house thereafter. On 4 October 1945, one day before the expiry of the twelve‑year limitation period measured from the date of the defendant’s entry into possession, the plaintiff, who was the son of the deceased Bhuri and therefore the brother of Laxmi, filed a suit in forma pauperis seeking possession of the house. The plaintiff claimed that he was an heir of Laxmi’s estate and alleged that he had been in possession of the house through a tenant until 24 August 1933, after which the tenant vacated, the plaintiff locked the house, and went to his native village of Harmara. He further alleged that on 27 September 1944 he learned that the appellant had taken possession of the house during his absence. The plaintiff contended that Balabux had no authority to mortgage or sell the house, that Laxmi had only a limited estate in the property, and that on her death the plaintiff, as her heir, was entitled to possession.

In the suit, the plaintiff asserted that he had remained in possession of the house until 24 August 1933 through his tenant, and that after the tenant vacated the premises the plaintiff had locked the house and then returned to his native village, Harmara. He further claimed that on 27 September 1944 he learned that during his absence the appellant had taken possession of the house. The plaintiff contended that Balabux, the husband of the former possessor Laxmi, lacked any authority either to mortgage or to sell the house, and that Laxmi was not the absolute owner of the property but held only a limited estate. Consequently, the plaintiff argued that on Laxmi’s death he, as an heir of the original estate, was entitled to possession. On 28 August 1947 the Civil Judge dismissed the suit, holding that Mst. Laxmi had become the absolute owner of the property, and therefore the plaintiff could not claim possession after her death because Balabux was her heir in stridhan. The judge, however, found that the suit was filed within the limitation period. The District Judge affirmed this decision on appeal, opining that the widow’s execution of the deed of gift was merely the execution of an oral will made by Ramchandra at his deathbed, which gave Laxmi an absolute estate in the disputed property. The district court rejected the defendant’s plea of limitation, determining that the plaintiff had been in possession within twelve years of the suit. The plaintiff then preferred a second appeal to the High Court of Jaipur, which was decided in his favour. The Jaipur High Court held that after Laxmi’s death the plaintiff continued to occupy the house until he was dispossessed by the appellant on 5 October 1933, and that he had even been in possession during Laxmi’s lifetime. The principal issue addressed by the High Court was whether the oral will bequeathing the house to Laxmi conferred an absolute interest. The Court concluded that, although the house was bequeathed to Laxmi, there was no proof that the donor intended to give her an absolute estate. In the absence of such evidence, a gift to a woman could only create a limited life estate, which would revert to the donor’s heirs upon her death. Accordingly, the plaintiff, being one of those heirs, was entitled to succeed. The High Court allowed the appeal, decreed the plaintiff’s suit, and awarded costs throughout. The defendant sought a review of this judgment. While the Jaipur High Court had become defunct, the review was heard by the Rajasthan High Court as its successor under the High Courts Ordinance. On 5 April 1950 the review was partially allowed, and the decree was amended to provide that the plaintiff would not obtain possession of the house unless he paid Rs 4,000 to the defendant as compensation for improvements and repairs.

In this case, the appeal was brought before the Supreme Court after the Constitution of India had come into force, and it was permitted by a direction of the Rajasthan High Court under article 133 (1)(c) of the Constitution. The counsel appearing for the respondent raised a preliminary question concerning whether the appeal could be maintained. He argued that, according to the Code of Civil Procedure that had applied in the former Jaipur State, the judgment of the Jaipur High Court had become final because no further appeal was provided against it. He therefore contended that the present appeal was therefore incompetent. He further explained that the suit which had been instituted in 1945 had been finally decided by the Jaipur High Court decision of 1949, and that the later review judgment of 5 April 1950, which had altered the decree only with respect to the amount to be paid for improvements, could not revive the earlier 1949 decision of the Jaipur High Court. The Court examined this objection and held that it was not well founded. The Court observed that the only decree which finally and conclusively determined the rights of the parties was the decree dated 5 April 1950 issued by the Rajasthan High Court. Because that decree was passed after the Constitution had become operative, the provisions of article 133 were attracted to it, and the decree was therefore appealable to this Court provided the conditions laid down in that article were satisfied. The Court further stated that the procedural rules of the old Jaipur State could not control the jurisdiction of the Supreme Court and were irrelevant to the question of maintainability. Having found that the requisites of article 133 had been met, the Court concluded that the appeal was clearly competent. The counsel for the respondent then argued that the High Court had been wrong in granting a certificate of appeal in the present matter. The Court rejected that contention. It noted that an inquiry into the value of the property had shown that the property was worth Rs 20,000, and that the dispute involved a substantial question of law: whether a testamentary disposition made by a Hindu in favour of a female heir created only a limited estate when there was no evidence that the testator intended to give her an absolute interest. In view of this important legal issue, the High Court was fully justified in issuing the certificate. The Court added that, had the certificate not been granted, it would have been prepared to admit the appeal under its extraordinary powers under article 136 (1) of the Constitution. Accordingly, the Court found no merit in either of the two preliminary objections and overruled them. Subsequently, Dr Bakshi Tek Chand, appearing for the appellant, submitted that the lower courts had erred in holding that the plaintiff’s suit was filed within the limitation period, and he urged that the suit should be considered time‑barred based on the factual allegations in paragraph 5 of the plaint.

In the appeal, the plaintiff argued that the last tenant left the house on 24 August 1933, after which the plaintiff returned to his native place having locked the house. He claimed, however, that this allegation had not been proved and that there was no evidence showing that he actually locked the house. Consequently, the plaintiff’s possession was said to have ended on 24 August 1933, and because the suit was filed more than twelve years after that date, the plaintiff’s claim was held to be out of time. The lower courts, however, found that the plaintiff remained in possession of the house during Laxmi’s lifetime and continued to occupy it thereafter. Even assuming that the tenant vacated on the stated date and that the plaintiff did not lock the house, the law presumes that a possessor’s occupation continues until he is lawfully dispossessed by another person. This presumption favours continuity of possession. All three courts below unanimously concluded, on the basis of the evidence, that after Laxmi’s death the plaintiff still possessed the house and that the suit was therefore within the limitation period. No valid grounds were identified for revisiting that finding in the fourth court, and the contention was consequently rejected.

Subsequently, Dr Bakshi Tek Chand contended that Laxmi had acquired an absolute title to the suit property under her father’s will and that the High Court erred in holding that, absent express words showing the donor’s intention to convey an absolute interest, a gift to an heir who would normally inherit only a limited interest could not be interpreted as granting an absolute interest. In response, counsel for the respondent raised two arguments. First, he suggested that Ramchandra intended to gift the suit property to Laxmi but, being on his death‑bed, was unable to perfect the gift by executing a registered deed. As a result, the property passed by inheritance to his widow, and Laxmi received it only through the widow’s subsequent gift. Under that gift, Laxmi could obtain no greater interest than the widow possessed, namely, a limited life estate that would terminate upon the widow’s death. In the alternative, the respondent argued that there was no evidence regarding the terms of the oral will; therefore, where a gift is made to a female heir, the presumption, in the absence of contrary evidence, is that the donee receives only a limited life interest in the bequeathed property.

The Court found merit in Dr Tek Chand’s contention and determined that none of the respondent’s arguments possessed any validity. It held that the fact that Ramchandra bequeathed the suit property, rather than gifting it to his daughter Laxmi, was incontrovertible at this stage. This fact had been admitted by the plaintiff himself while giving evidence on the witness stand.

In this case the plaintiff stated that Ramchandra had made a will in favour of Mst. Laxmi and that, accordingly, his maternal grandmother and maternal great‑grandmother caused a gift deed to be prepared and registered. The plaintiff explained that the very same gift deed was executed by his maternal grandmother and great‑grandmother, thereafter registered, and that through this deed Mst. Laxmi held possession of the property until she died. He further added that she had appointed the deponent as her son and therefore the rent notes were executed in the deponent’s name. Under the principle that an admission by a party must be presumed true unless contrary evidence is shown, the Court held that the plaintiff’s statement must be taken as correct because no evidence was adduced to the contrary. The Court found that the gift deed fully supported the plaintiff’s testimony on this point, expressly stating that, in accordance with the will, the gift was made in favour of Laxmi and further reciting that Laxmi was entitled to deal with the house in any manner she liked. The Court observed that those who were directed to give effect to the oral will of Ramchandra must be presumed to have carried out his directions in accordance with his wishes. It seemed clear that the testator’s intention was to benefit his daughter Laxmi and to confer upon her the same title that he himself possessed. Laxmi was the sole object of his bounty and, on the attendant circumstances, it was plain that he intended to confer on her whatever title he himself held. Consequently, the Court concluded that Laxmi became the absolute owner of the property under the terms of the oral will of her father and that the plaintiff was not an heir to the property, which by operation of law devolved on Laxmi’s husband, who possessed the full right to alienate it. The Court further expressed the opinion that the High Court erred in thinking that a settled principle of law required express terms in a gift deed to indicate that a donor with absolute interest intended to convey absolute ownership, especially where the donee was an heir who would otherwise inherit only a limited interest. It was noted that the principle once deduced from the Privy Council decision in Mahomed Shumool v. Shewukram(1) held that a bequest to a daughter‑in‑law passed a limited estate, and that Indian High Courts had construed that decision to mean that a gift of immovable property to a woman could not be deemed to confer an absolute estate of inheritance unless the deed or will gave her, in express terms, a heritable estate or power of alienation. Later decisions of the Judicial Committee clarified that when words were used conferring absolute ownership upon the wife, the wife enjoyed the rights of ownership without the need for additional express terms, referring again to Shumool’s case(1).

The Court observed that recent decisions of several High Courts had examined the question of whether a gift of immovable property to a woman was presumed to be limited. It held that, according to the law as it is presently understood, there is no presumption in favour of either gender and there is no distinction between a male donee and a female donee. Consequently, the fact that the donee is a woman does not make the gift any less absolute when the language of the instrument would be sufficient to convey an absolute estate to a man, as reflected in Nagammal v. Subbalakshmi Ammal (2). The Court further noted that the issue had been definitively settled by its own decision in Ram Gopal v. Nand Lal (3). In that decision the Court stated: “It may be taken to be quite settled that there is no warrant for the proposition of law that when a grant of an immovable property is made to a Hindu female, she does not get an absolute or alienable interest in such property, unless such power is expressly conferred upon her.” The Court explained that the reasoning adopted by Mitter J. of the Calcutta High Court in Mst. Kollani Kuar v. Luchmi Kuar (4) and subsequently approved by the Judicial Committee was unassailable. It recalled the Privy Council’s early observation in Tagore v. Tagire (5) that, where an estate is given to a man without express words of inheritance, Hindu law by default supplies an inheritable estate. This principle is embodied in section 8 of the Transfer of Property Act. The Court emphasized that, unless it is shown that Hindu law treats a gift to a female as a limited gift or imposes restrictions akin to those of a widow’s estate, there is no justification for deviating from this general rule, and no such provision or textual support exists in Hindu law. Accordingly, to convey an absolute estate to a Hindu female, it is not necessary to include an explicit power of alienation; it suffices that the language used is of a magnitude that would convey full ownership rights. The Court concluded that the High Court judges had erred in law when they presumed that a father’s will in favour of his daughter created only a limited life estate. For these reasons the Court allowed the appeal, set aside the High Court decree that had decreed the plaintiff’s suit, restored the trial Court’s decree dismissing the plaintiff’s suit, and ordered that no costs be awarded. The appeal was therefore allowed.