{"id":145293,"date":"2001-09-25T00:00:00","date_gmt":"2001-09-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-brahma-vart-sanatan-dharm-vs-kanhyalal-bagla-others-on-25-september-2001"},"modified":"2018-07-30T02:34:15","modified_gmt":"2018-07-29T21:04:15","slug":"the-brahma-vart-sanatan-dharm-vs-kanhyalal-bagla-others-on-25-september-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-brahma-vart-sanatan-dharm-vs-kanhyalal-bagla-others-on-25-september-2001","title":{"rendered":"The Brahma Vart Sanatan Dharm … vs Kanhyalal Bagla & Others on 25 September, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The Brahma Vart Sanatan Dharm … vs Kanhyalal Bagla & Others on 25 September, 2001<\/div>\n
Author: Shah<\/div>\n
Bench: M.B. Shah, R.P. Sethi<\/div>\n
           CASE NO.:\nAppeal (civil) 916  of  1984\n\n\n\nPETITIONER:\nTHE BRAHMA VART SANATAN DHARM MAHAMANDAL\n\n\tVs.\n\nRESPONDENT:\nKANHYALAL BAGLA & OTHERS\n\nDATE OF JUDGMENT:\t25\/09\/2001\n\nBENCH:\nM.B. Shah & R.P. Sethi\n\n\n\n\nJUDGMENT:\n<\/pre>\n
Shah, J.\n<\/p>\n
\tBy judgment and decree dated 18th November, 1983 passed in
\nFirst Appeal No.276 of 1967, the High Court of Allahabad confirmed
\nthe judgment and decree dated 3.7.1967 passed by the IInd Additional
\nCivil Judge, Kanpur in Original Suit No.66 of 1960.\n<\/p>\n
\tAfter dismissing the appeal, the High Court vide its order dated
\n18th November, 1983 granted certificate of leave to appeal to this
\nCourt.\n<\/p>\n
The dispute in this appeal is with regard to properties owned by
\none Durga Prasad Bagla who was owner of considerable property in
\nthe City of Kanpur and carried business in the names of M\/s Durga
\nPrasad Bagla, Kanpur and M\/s Harmukh Rai Munna Lal, Delhi.
\nDurga Prasad had third wife Mst. Durgi and that they were having no
\nchild.\tOn 01.11.1917, he executed a will in favour of Mst. Durgi.  He
\ndied on 09.9.1918 and thereafter on 21st December 1918, Mst. Durgi
\nadopted deceased Kanhaiya Lal Bagla (plaintiff no.1) and executed an
\nadoption deed also.  It appears that there were differences after
\nadoption and deceased Kanhaiya Lal Bagla, minor through guardian,
\nnatural father filed Original Suit No.232 of 1924 against Mst. Durgi
\nand  another in the Court of Civil Judge, Kanpur for declaration that
\nhe was the adopted son and also for possession over the disputed
\nproperties.  The suit was decreed by the trial court.  Against that Mst.
\nDurgi preferred first appeal No.502 of 1925 before the High Court of
\nAllahabad.  That appeal was allowed and the Court held as under: –\n<\/p>\n
We accordingly allow this appeal and setting
\naside the decree of the Court below, grant the plaintiff a
\ndeclaration that he is the  validly adopted son of Durga
\nPrasad but that the estate created under the will, dated the
\nIst of November, 1917, in favour of Mst. Durgi holds
\ngood and the plaintiff will have no right to obtain
\npossession of the estate of the deceased during her
\nlifetime.\n<\/p>\n
Thereafter, on 1.11.1956, Durgi executed a Will (Ex.A.13) in
\nfavour of defendant no.1 Brahma Vart Sanatan Dharm Mahamandal,
\nKanpur in respect of properties Nos.1 and 2 of Schedule C to the
\nplaint.\t On 31.10.1958 she executed a settlement deed (Ex.A.14) in
\nfavour of defendant no.1.  On 8.11.1958 she also executed a gift deed
\nEx.Q.1 in favour of defendant no.3 Murari Lal Dwivedi whom she
\ntreated as Dharm Putra.\t It is stated that Mst. Durgi died on night
\nbetween 11\/12th February, 1960.\n<\/p>\n
It is alleged that plaintiff no.1 Kanhaiya Lal Bagla sold seven
\nannas share in the disputed property to plaintiff no.2 Man Mohan
\nShukla vide sale deed Ex.27.  Thereafter, on 20.4.1960 plaintiffs
\n(Kanhaiya Lal and Man Mohan) filed the present suit for possession
\nof the properties and for a declaration that the will, gift and settlement
\ndeeds  executed by Mst. Durgi are null and void and that the plaintiffs
\nare owners of the properties of Schedule C of the plaint and for
\nrecovery of mesne profits and possession of the properties mentioned
\nin Schedule A & B of the plaint.  The suit was resisted by the
\ndefendants and it was contended that adoption deed was fraudulently
\nobtained by the natural father of Kanhaiya Lal Bagla and collaterals of
\nDurga Prasad Bagla.  It was also stated that Mst. Durgi became
\nabsolute owner of the property in terms of the Will executed by Durga
\nPrasad and the adoption in any case would not divest her of the said
\nproperty.  It was also contended that considering the finding given by
\nthe High Court in previous proceedings, there was no question of suit
\nor issue being barred by res judicata.\tIn the alternative, it was stated
\nthat if it is held that she was limited owner as alleged, she became
\nabsolute owner under Section 14(1) of the Hindu Succession Act,
\n1956.\n<\/p>\n
The Trial Court upheld the contention raised by the plaintiffs
\nand held that there will be bar of res judicata with regard to validity of
\nadoption in view of the earlier litigation; Mst. Durgi had only life
\nestate under the Will and it was not enlarged under Section 14(1) of
\nthe Hindu Succession Act into an absolute estate.  The court
\ndisbelieved the plaintiffs version that the Will and the settlement
\ndeed were not executed by Mst. Durgi voluntarily or were obtained by
\nfraud, misrepresentation or undue influence.  It was also held that gift
\ndeed in favour of defendant no.3 Murali Lal Dwivedi was obtained
\nunder undue influence.\tIn appeal, the High Court considered the facts
\nof the previous litigation between the parties and held that in a
\nprevious suit between the parties the issue wasas to whether she
\nhad an absolute estate under the will; that she continued to be the
\nowner of the property in the suit or the plaintiffs became the owner
\nafter adoption and that issue was decided against her.\tThe Court,
\ntherefore, held that decision in earlier First Appeal No.502\/25
\noperates as res-judicata and it was not open to the Court to adjudge
\nthe same again. The Court further held that Mst. Durgi would not get
\nbenefit of Section 14(1) of the Hindu Succession Act.\n<\/p>\n
In this appeal, three questions are required to be determined:\n<\/p>\n
(a) Whether under the Will, Mst. Durgi got absolute
\nownership [iwjh ekfyd] of the property bequeathed or
\nwhether she got limited estate?\n<\/p>\n
(b) What is the effect of the decision rendered between
\nparties by the Allahabad High Court in First Appeal
\nNo. 502 of 1925? and,<\/p>\n
(c) What is barred by res judicata?\n<\/p>\n
For deciding the first question, that is, whether under the Will
\nMst. Durgi got absolute ownership of the property or only a limited
\nestate, we would refer to the relevant parts of the Will made by the
\ndeceased Durga Prasad Bagla, which are as under: –\n<\/p>\n
I bequeath absolutely all my estate to my wife
\nMst. Durgi D\/o late Lala Harnarayan Das by caste Vaish
\nAgrawal previously r\/o Bhivani, District Hissar and at
\npresent residing in city of Kanpur and provide as under: –\n<\/p>\n
.\n<\/p>\n
ThirdlyAll my remaining estate after defraying
\nthe funeral expenses, will vest absolutely in my wife,
\nMst. Durgi, as aforesaid and she will also have the power
\nto continue or to discontinue  my business shops and
\ncommission agency in consultation with and with the
\napproval of my family in which I have been adopted and
\nshe will have the right to close the business, shop and
\ncommission agency in the same manner as I am entitled.\n<\/p>\n
FourthlyShe will have the right in consultation
\nwith the member of the family in which I have been
\nadopted, to spend the whole money and no one will have
\nany right to question the same and further she will have
\nthe right to sell and bequeath by will etc.the whole
\nproperty in consultation with the family members in
\nwhich, I have been adopted and further, I  confer on her
\nthe right to adopt a son of any person, she likes, in
\nconsultation of biradari in which I have been adopted
\nand after the death of the lady afore mentioned, the
\nadopted son may become the owner (malik ho sakta hai)
\nbut during the life time of the lady, the adopted son will
\nhave no rights.\n<\/p>\n
Aforesaid Will makes it abundantly clear that by unambiguous
\nterm absolute ownership of the properties was bequeathed to Mst.
\nDurgi by her husband Durga Prasad.  Repeatedly in the Will, it has
\nbeen made clear that the intention of the executant of the Will was to
\nbequeath absolute right of ownership of his properties to his wife.\n<\/p>\n
However, learned counsel for the respondents submitted that in
\nparagraph (4) of the Will, it has been provided that after the death of
\nthe testator, it would be open to his widow to adopt a son and in such
\neventuality, adopted son may become the owner after the death of the
\nlady.  In our view, these words in no way restrict or curtail the
\nabsolute ownership rights of Mst. Durgi.  They only provide that after
\nher death, in case of adoption of a son by her, the adopted son may get
\nthe said property.  But, rights of Mst. Durgi to deal with the property
\nas an absolute owner and to transfer or bequeath the same are not
\naffected or restricted.\t This has been made clear stating that she will
\nhave the right to spend the whole money and no one will have the
\nright to question the same and further she will have the right to sell
\nand bequeath by way of Will etc. the whole property.  Result is, if any
\nproperty remains after the death of Bai Durgi which she has not
\ntransferred or bequeathed, her adopted son would get right over the
\nsame.\n<\/p>\n
Further, in interpreting the Wills, it is settled law to get at the
\nintention of the testator by reading the Will as a whole; if possible
\nsuch construction as would give to every expression some effect
\nrather than that which would render any of the expression inoperative
\nis to be accepted.  Another rule which may be useful in context of the
\nWill is that the words occurring more than once in a Will are to be
\npresumed to be used always in the same sense unless contrary
\nintention appears from the Will.  The Court may also consider the
\ncircumstances under which the testator makes his Will such as the
\nstate of his property, or his family and the like.  [Re.: Pearey Lal v.
\nRameshwar Das<\/a> [(1963) Supp 2 SCR 834].\n<\/p>\n
Further, in the matter of construction of a Will, authorities or
\nprecedents would be of no help as each Will is to be construed in its
\nown terms and in the setting in which the clauses occur.  In the
\npresent case, the circumstances under which the Will was executed by
\nthe testator could be gathered from the Will itself.  The testator
\nhimself was adopted son.  He married thrice and was suffering from
\nsome ailment and fever.\t Third wife was minor and young having no
\nchild.\tTo protect her interest from other members of the family, he
\nbequeathed his entire property in her favour.  He repeatedly
\nmentioned and made it crystal clear that he was bequeathing absolute
\nownership of his property to his wife.\tOnly suggestion which was
\nmade to his wife was to consult his other family members before
\ndisposing of the property.   In the Will, the expression used is [iwjh
\nekfyd or puree malik] absolute owner and the expression Malik has
\na well-known connotation and has been held as apt to describe a
\nowner possessed of full proprietary rights, including a full  right of
\nalienation, unless there is something in the context or in surrounding
\ncircumstances to indicate that such full proprietary rights were not
\nintended to be conferred.  [Re. Pearey Lal (supra)].  Hence,
\nconsidering the intention of the testator and the specific words used in
\nthe will, it would be difficult to hold that the Will conferred limited
\nestate on Mst. Durgi.\n<\/p>\n
Learned counsel for the respondents, however, relied upon the
\njudgment rendered by the Allahabad High Court between the same
\nparties in the earlier proceedings.  {Reported as Durgi v. Kanhaiya
\nLal AIR 1927 Allahabad 387].  It is required to be understood that
\nearlier proceedings were initiated by plaintiff Kanhaiya Lal within
\nfew years of his adoption through his guardian, natural father.\t That
\nsuit was filed for a declaration that he was validly adopted son and
\nwas entitled to possession of the property bequeathed in favour of
\nMst. Durgi.  It was decreed by the trial Court and hence, Mst. Durgi
\npreferred first appeal before the High Court.  The High Court
\nconfirmed the judgment rendered by the trial court to the extent that
\nKanhaiya Lal was validly adopted son of Mst. Durgi and set aside the
\njudgment of the trial court for handing over possession of the suit
\npremises.  The Court held (at page 389) as under: –\n<\/p>\n
The document is called a will by the testator
\nhimself.  We have no doubt in our mind that it was not
\nmerely an ordinary Hindu widows estate that was
\nintended to be conferred on Mt. Durgi.\tOn the other hand,
\nthe testator expressly stated that she should be absolute
\nowner of the entire estate left by him and that she should
\nhave power to spend the whole of the money, that is to
\nsay, the capital, with the consent of his family and also
\nshe should have power to make a sale or gift with the
\nconsent of his family.\tObviously these are not powers
\nwhich can be ordinarily exercised by a Hindu widow, who
\nhas no power to alienate the estate without legal
\nnecessity.\n<\/p>\n
Thereafter the Court negatived the contention that the testator
\nhad no power to execute the Will or that it is not binding to
\nsubsequently adopted son and, therefore, the Court set aside the
\nfinding given by the trial court that the disposition made by Durga
\nPrasad was null and void.\n<\/p>\n
The Court also held that:\n<\/p>\n
In our opinion the testator had intended to confer
\non her an absolute estate, with this condition: that in case
\nshe exercised the power to adopt a boy her interest would
\nbe cut down to a life-interest with remainder over to the
\nadopted son.  This undoubtedly was the intention of the
\ntestator.  Under this will therefore a life-estate at least
\nwas intended to be created in favour of the widow.\n<\/p>\n
Thereafter the Court partly allowed the appeal and set aside the
\ndecree of the trial court, granted the plaintiff a declaration that he was
\na validly adopted son of Durga Prasad, but that the life estate created
\nunder the Will dated 1st November 1917 in favour of Mst. Durgi holds
\ngood and the plaintiff will have no right to obtain possession of the
\nestate of the deceased during her life time.\n<\/p>\n
Learned counsel for the respondents submitted that the
\naforesaid finding given by the High Court that under the Will, life
\nestate was created in favour of Mst. Durgi is binding between the
\nparties.  As against this, learned counsel for the appellant pointed out
\nthat the High Court has specifically held that under the Will absolute
\nownership of the entire estate left by the testator is given to her and
\nthat she was having power to sell or gift away the property.
\nTherefore, the finding which is given in the alternative is not final
\nbinding adjudication between the parties.\n<\/p>\n
In view of these submissions, the next question which is
\nrequired to be considered is whether the aforesaid finding is binding
\nbetween the parties and the issue is barred by res judicata.  For this
\npurpose, we would refer to the relevant issues raised by the trial
\nCourt.\tThey are as under : –\n<\/p>\n
3. (B) Is the plea regarding factum and validity of
\nadoption barred by res judicata in view of the decision in suit
\nNo. 232\/1924 and appeal No. 502\/1925?\n<\/p>\n
4. (A) Had Durgawati only a life interest under the Will
\nof Durga Prasad?  What is the effect of the above referred
\njudgments on this point?\n<\/p>\n
With regard to the factum and validity of adoption, the trial
\nCourt held that the issue was barred by res judicata in view of the
\ndecision rendered in First Appeal No. 502 of 1925.  It is to be stated
\nthat with regard to the contention whether Mst. Durgi was having life
\ninterest or absolute ownership, the trial court has not raised issue of
\nres judicata and rightly so because that was not the question which
\nwas required to be decided in the previous suit.  On issue No. 4 (A)
\nraised by it, the court held that the decision in the previous case
\nlimiting the interest of the widow to a life estate might not have the
\nforce of res judicata in the present suit, yet the interpretation put by
\nthe High Court on the  will of Durga Prasad could not be ignored and
\nwas binding on the Court.  However, without considering this aspect,
\nthe High Court referred to issue No. 6 quoted below which was raised
\nin the previous proceedings.\n<\/p>\n
Is the defendant full owner of the property of her
\nlate husband by virtue of his will dated the 1st November,
\n1917?  If so, can the plaintiff claim the property in
\nquestion?\n<\/p>\n
The High Court, therefore, held that in the previous
\nproceedings, the Court was called upon to decide defendants (Mst.
\nDurgis) main plea that she had an absolute estate under the Will and
\nalso the alternative plea that she had a life estate and she could not be
\ndispossessed.  The Court negatived the contention that the plea that
\nsuit for possession would have failed on  the finding that she had a life
\nestate and it was as such not necessary to go into the question as to
\nwhether she had an absolute estate was without any merit because it is
\nthe duty of the courts of law to record specific and clear cut finding on
\nall points of law raised before them.  The Court, therefore, rejected the
\nplea that the observations of the High Court in earlier proceedings
\nwere mere obiter dicta and consequently not binding.\n<\/p>\n
On the question of res judicata, we would only refer to the
\ndecision rendered by this Court in Sajjadanashin Sayed MD. B.E.
\nEDR. (D) by LRs. Vs. Musa Dadabhai Ummer and Others [2000 (3)
\nSCC 350].  The Court in paragraph 12 observed as under:-\n<\/p>\n
It will be noticed that the words used in Section 11
\nCPC are directly and substantially in issue.  If the
\nmatter was in issue directly and substantially in a prior
\nlitigation and decided against a party then the decision
\nwould be res judicata in a subsequent proceeding.
\nJudicial decisions have however held that if a matter was
\nonly collaterally or incidentally in issue and decided in
\nan earlier proceeding, the finding therein would not
\nordinarily be res judicata in a latter proceeding where the
\nmatter is directly and substantially in issue.\n<\/p>\n
In paragraph 18, the Court has further considered in which case,
\nit could be said that the issue was directly and substantially raised and
\ndecided and held as under: –\n<\/p>\n
In India, Mulla has referred to similar tests (Mulla,
\n15th Edn., p. 104).  The learned author says : a matter in
\nrespect of which  relief is claimed in an earlier suit can be
\nsaid to be generally a matter directly and substantially in
\nissue but it does not mean that if the matter is one in
\nrespect of which no relief is sought it is not directly or
\nsubstantially in issue.\t It may or may not be.\tIt is possible
\nthat it was directly and substantially in issue and it may
\nalso be possible that it was only collaterally or incidentally
\nin issue, depending upon the facts of the case.\t The
\nquestion arises as to what is the test for deciding into
\nwhich category a case falls?  One test is that if the issue
\nwas necessary to be decided for adjudicating on the
\nprincipal issue and was decided, it would have to be
\ntreated as directly and substantially in issue and if it is
\nclear that the judgment was in fact based upon that
\ndecision, then it would be res judicata in a latter case
\n(Mulla p. 104).\t One has to examine the plaint, the written
\nstatement, the issues and the judgment to find out if the
\nmatter was directly and substantially in issue (Ishwer
\nSingh v. Sarwan Singh<\/a> [AIR 1965 SC 948] and Syed
\nMohd. Salie Labhai v. Mohd. Hanifa [(1976) 4 SCC 780].
\nWe are of the view that the above summary in Mulla is a
\ncorrect statement of the law.\n<\/p>\n
 In the present matter, even though the trial court has considered
\nthis aspect in detail, the High Court has not dealt with it.  However, it
\nwould not be necessary to deal with the same in detail in view of
\nSection 14 of the Indian Succession Act, 1956. Admittedly, deceased
\nMst. Durgi was third wife of testator and was young and minor at the
\nrelevant time. Testator was not having any other heir except his wife
\nMst. Durgi.  Mst. Durgi was entitled to maintenance from her husband
\nand from his property.\tSo, after the death of her husband she would
\nhave life interest even without will being executed in her favour.  In
\nview of Section 14(1) of Hindu Succession Act, she would be absolute
\nowner of the said property.  In such cases, exception provided under
\nSection 14(2) of the Act would not be applicable.  Law on this
\nquestion is well settled and we would only refer to the decision in
\nThota Sesharathamma and another vs. Thota Manikyamma (Dead)
\nBy LRs. [(1991) 4 SCC 312], wherein this Court held as under : –\n<\/p>\n
Section 14(2) of the Act is in the nature of a
\nproviso or an exception to Section 14 and comes into
\noperation only if acquisition in any of the methods
\nindicated therein is made for the first time without there
\nbeing any pre-existing right in the female Hindu to the
\nproperty.  If the case falls under the provisions of
\nSection 14(1) of the Act then the female Hindu shall
\nbe held to be full owner of the property and sub-
\nsection (2) of Section 14 will only apply where the
\nproperty is acquired without there being any pre-existing
\nright of the female Hindu in such property.  This view
\nlends support to the object of the section which was to
\nremove the disability on women imposed by law and to
\nachieve a social purpose by bringing about change in the
\nsocial and economic position of women in Hindu
\nSociety.\n<\/p>\n
If the finding is positive her limited estate, though
\ncreated with restrictive covenants in instrument or an
\nomission to expressly so mention in full particulars
\nthereof in the instrument in that regard are of little
\nconsequence.  Her limited estate gets blossomed into
\nfull ownership under Section 14(1) with a right to
\nbequeath, gift over, alienate or to deal in any manner
\nrecognised by law.  If on the other hand the Hindu
\nfemale acquires for the first time the title therein as a
\ngrant with restrictive estate under the instrument with no
\npre-existing title or right, sub-section (2) of Section 14
\ngets attracted and the restrictive covenants contained in
\nthe instrument would bind her.\tShe remains to be a
\nlimited owner in terms thereof.\t The subsequent alienee
\nor transferee acquires no higher right thereunder than the
\nlegatee etc.  The reversioner to the last male holder is not
\nbound by such transfer and is entitled to succeed to the
\nestate, on her demise, in terms of the instrument.\n<\/p>\n
Same view is taken in Beni Bai (Smt.) v. Raghubir Prasad<\/a>
\n[(1999) 3 SCC 234].  Hence, presuming that Mst. Durgi was having
\nlimited estate, she became absolute owner of the said property under
\nSection 14(1) of the Hindu Succession Act, 1956.\n<\/p>\n
Hence, the appeal is allowed and the impugned judgment and
\ndecree passed by the trial court and confirmed by the High Court is
\nquashed and set aside.\tThe suit filed by the respondents is dismissed.
\nThere shall be no order as to costs all throughout.\n<\/p>\n
\t\t\t\t\t\t.J.\n<\/p>\n
\t\t\t\t\t\t(M.B. Shah)<\/p>\n
\t\t\t\t\t\t..J.\n<\/p>\n
\tSeptember 25, 2001.\t\t\t(R.P. Sethi)<\/p>\n
6<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The Brahma Vart Sanatan Dharm … vs Kanhyalal Bagla & Others on 25 September, 2001 Author: Shah Bench: M.B. Shah, R.P. Sethi CASE NO.: Appeal (civil) 916 of 1984 PETITIONER: THE BRAHMA VART SANATAN DHARM MAHAMANDAL Vs. RESPONDENT: KANHYALAL BAGLA & OTHERS DATE OF JUDGMENT: 25\/09\/2001 BENCH: M.B. Shah & R.P. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-145293","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe Brahma Vart Sanatan Dharm ... vs Kanhyalal Bagla & Others on 25 September, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-brahma-vart-sanatan-dharm-vs-kanhyalal-bagla-others-on-25-september-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Brahma Vart Sanatan Dharm ... vs Kanhyalal Bagla & Others on 25 September, 2001 - 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