TMI Blog2006 (10) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in N. Krishnammal [ 1979 (4) TMI 177 - SUPREME COURT] is binding on this Court. The meaning of the expression heir in the context of the Hindu Succession Act has been considered therein. The expression heir would mean a legal heir. In construing a document, this Court cannot assign any other meaning. A document as is well-known must be construed in its entirety. Although some parts thereof should not be read in isolation, the contents of Clause (7) of the Will are really important. It may be true that in the last part of the Will, the propounder while placing his sons adduced the words 'Putra Poutra'. But the same cannot control the unequivocal expression contained in Clause (7) thereof. We fail to understand as to how in the year 1975 the sale deed could be executed. The original defendant No. 1 knew the implication of Will. He was aware that an embargo had been created in his right to transfer the property to any other person. In view of the injunction contained in the said document he could not have alienated the property. He could only be in enjoyful possession thereof. The original defendant No. 1, therefore, thought that if his son is impleaded as one of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed in the share of the Respondent No.3 is not a matter wherewith this Court's attention is required to be engaged. Such question shall appropriately fall for consideration in appropriately constituted suit. Thus, we are of the opinion that no case has been made out for exercise of our discretionary jurisdiction under Article 136 of the constitution of India. This appeal is dismissed. - S.B. Sinha Dalveer Bhandari, JJ. JUDGMENT S.B. SINHA, J. V. Papaiah Naidu owned a large number of movable and immovable properties. He had 5 sons, viz, V. Perumala Swamy Naidu, V. Sudarshanam Naidu, V. Balakrishna Naidu, V. Deena Dayalu Naidu, V. Ramakrishna Naidu and 4 daughters, viz., Rukminiyamma, Pushpamma, Hamsaveniyamma and Bhagyalakshmiyamma. He executed a Will on 14.7.1932. The said Will was a registered one. A portion of the properties was bequeathed in favour of defendant No. 1. He was then a minor. The properties bequeathed in his favour were described in Schedule E of the Will. In terms of the said Will, the sons of the testator got life interest. Only, after his death his heirs, legal representatives could inherit the same. On 3.12.1975 the original defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , viz., children (Mavvarajjay). Whereas while bequeathing the properties in favour of the ladies, it had specifically been mentioned that on the death of the testator the same will pass on to their children, while bequeathing the immovable properties it had clearly been mentioned that they will pass on to 'Waristdar', which must be held to mean only 'sons'. The suit, it was submitted, was also barred by limitation as by reason thereof, the sale deed executed in favour of Appellants by the original defendant No. 2 was questioned and in that view of the matter, the High Court committed an error in not invoking the provisions of Article 49 of the Limitation Act, 1963. The learned counsel would contend that the son of the original defendant No. 1 was deliberately not impleaded as a party in the suit as he had also executed the deed of sale dated 3.12.1975 along with his father, the original defendant No. 1 and as such the same was binding on him. Appellants, Mr. Lalit would submit, were bona fide purchasers for value and in that view of the matter, the High Court committed a manifest error in granting a decree of injunction. Mr. S.N. Bhat, learned counsel appearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em as mentioned in para 8 of this Will. If the executors find it beneficial and useful to sell any immovable property described in Schedule 'A' of this Will, excepting the House No. 23 in Castle Street they can do so. And from the money so got from the sale of the property, the executors should purchase immovable property which will fetch good rent, in the names of those to whose share the properties sold had gone. Until they purchase such new immovable properties the sale amount should be deposited in any of the banks mentioned in this Will and the executors shall purchase new immovable properties from the said money plus interest. My sons should enjoy the respective immovable properties thus purchased subject to the conditions stipulated in para 8 and 9 of this Will. 12) My sons are bound to reside in the House No. 23, Dodda Soolu Castle Street Civil and Military Station in which I am presently residing. My sons do not have any right to alienate the said house through sale, gift, mortgage, etc. After my sons their legal heirs shall share it equally and enjoy the same with full title. My sons should remain as a joint family until the said Ramakrishna Naidu attains the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said deed of sale. The question, however, would arise as to whether the plaintiffs became the heirs of their father having regard to the provisions of the Hindu Succession Act. In law, indisputably, the question is whether they were 'heirs' within the meaning of the said term as expressed in the Will. By reason of the Will, the original defendant No. 1 did not succeed to the interest absolutely. He was given only life interest. Succession under the Will opened only on his death. He died during pendency of the suit in the year 1998. Succession opened only then. In the year 1975, the original defendant No.1 and his son, thus, had no authority to execute any deed of sale. The defendant No.1 could only transfer or alienate the interest he had in the property. Respondent No.3, thus, did not inherit the property although in the deed of sale dated 3.12.1975 it was stipulated that both of them were owners thereof and had perfect title therein. The suit was a pre-mature one in the sense that the declarations sought for that the plaintiffs were the beneficiaries under the Will could have been granted in their favour only upon demise of their father and not prior thereto. Now, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mullick vs. Debabrata Mullick [(1951) 2 SCR 1125], this Court opined that the expression 'heirs' cannot normally be limited to issues and it must mean all persons who are entitled to the property held and possessed by/ or under the law of inheritance. In that case, the widow would not have been entitled to inherit the property of her husband as she was not an heir. However, she became an heir by reason of the provisions of the Hindu Succession Act. Hindu Succession Act was enacted to codify the law relating to intestate succession amongst Hindus. Section 4 of the Act provides that the same has an overriding effect over other laws for the time being in force. Sub-Section (1) of Section 4 reads as under : 4. Overriding effect of Act. (1) Save as otherwise expressly provided in this Act, (a) any text, rule or interpretation of Hindu Law or any custom or usages as part of that law in force immediately before the commencement of this Act, shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween Satyawati and first defendant therein on 27.1.1955, in terms whereof she surrendered all her right, title and interest in the property in his favour, retaining a mere right of residence in the first floor. In the fact situation obtaining therein and in particular, having regard to terms of the Will and Section 119 of the Indian Succession Act, 1925, it was held : We are, therefore, of the opinion that by operation of law, i.e., by virtue of Section 119 of the Indian Succession Act, the bequest to the legal heirs of the testator vested in the first defendant he alone being the legal heir of the testator on that date on the date of death of Ram Nath (testator). The vesting of bequest to the legal heirs of the testator was not postponed till the death of the interposer, Satyawati. The language of clause (i) of the Will cannot be construed otherwise. Shri Bhandare then contended that the use of the plural 'heirs' and not the singular 'heir' in clause (i) is indicative of the intention of the testator that he was referring to his legal heirs as may be in existence on the death of Satyawati. In our opinion, this argument is plainly unacceptable. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al meaning. Only when the contents are not clear the question of taking recourse to the application of principles of construction of a document may have to be applied. It is also not a case where there exists any inconsistency between an earlier and later part of the document. What is necessary for true, proper and effective construction of the Will in question is to give effect to the intention of the propounder of the Will. It will bear repetition to state that an embargo was put on his son inheriting the property in absolute terms. Their title was to be limited. They could enjoy the only property during life time. We fail to understand as to how in the year 1975 the sale deed could be executed. The original defendant No. 1 knew the implication of Will. He was aware that an embargo had been created in his right to transfer the property to any other person. In view of the injunction contained in the said document he could not have alienated the property. He could only be in enjoyful possession thereof. The original defendant No. 1, therefore, thought that if his son is impleaded as one of the executant of the document; probably the embargo created under the Will would not come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... himself did not challenge the deed of sale. So far as his interest in the property is concerned, the same may be claimed by the appellants herein having regard to the principles contained in Section 41 of the Transfer of Property Act. It is, therefore, not a case where Articles 59 and 60 of the Schedule appended to the Limitation Act would apply. Reliance placed by Mr. Lalit on Madhukar Vishwanath v. Madhao and Others [(1999) 9 SCC 446] and Prem Singh Ors. v. Birbal Ors. [2006 (5) SCALE 191 : (2006) 5 SCC 353], have no application in the instant case. In Prem Singh (supra), it was held : When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non est in the eye of law, as it would be a nullity. Once, however, a suit is filed by a plaintiff for cancellation of a transaction, it would be governed by Article 59. Even if Article 59 is not attracted, the residuary article would be. In Madhukar Vishwanath (supra), the question which arose for consideration was the effect of transfer of a minor's property. The validity of the sale deed was, therefore, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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