9911796707
TMI Blog2006 (10) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... 0th January, 1982, defendant No. 2 disposed of the said property in favour of defendant No. 3. Plaintiffs-Respondents who are the daughters of original defendant No. 1 filed a suit on 30.7.1982 before the City Civil Judge, Bangalore on 30th July, 1982 inter alia praying for the following reliefs. "(a) declaring that the Plaintiffs are also lawful heirs entitled to the bequests under the Will dated 14.7.1932 executed by their grand-father as lineal heirs of the First Defendant, (b) and consequently restrain by an order of permanent injunction the defendants, their agents, servants from demolishing, altering, constructing or reconstructing the suit schedule property. (c) grant cost of the suit; and " The plaintiffs, however, did not implead their brother as a party. The bungalow which was the subject mater of the suit was demolished by Appellants herein whereupon the plaint was amended praying for a decree of mandatory injunction for restoration of the said property. The learned Civil Judge in view of the pleadings of the parties framed as many as 12 issues, inter alia, in regard to: (i) limitation (ii) non-rejoinder of parties (iii) adequacy of valuation of the suit and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit at the time of its institution was a pre- mature one and thus, the question of its being barred by limitation does not arise. The original defendant No. 1 having died during the pendency of the suit and the brother of the plaintiffs having been impleaded as a party, it was submitted the judgment of the High Court is clearly sustainable and the relief can be moulded. The expression 'heirs' according to the learned counsel would not mean only a male descendant and same would depend upon the law prevailing at the relevant time as also in view of the fact that in terms of the provisions of the Hindu Succession Act, the daughters also became heirs of the defendant No. 1, they would also be beneficiaries along with their brothers. Mr. K. Swamy, learned counsel appearing on behalf of Respondent No. 3 supported the contention of Mr. Bhat. The original Will was written in the local language of Karnataka. The executor, V. Papaiah Naidu, was a forward-looking person. He was a man of charitable dispensation. He executed the Will in his anxiety to see that all his sons reside together. Possibly with that view of the matter he bequeathed life interest in favour of his sons. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dred and fifty every month for his household expenditures till his share of property and immovable properties are handed over to him and should be debited to the rent account of his immovable property." He not only gave his daughters sufficient ornaments at the time of their marriage as also some immovable properties, he bequeathed some property in favour of his daughters in law as well. The executors were enjoined with a duty to get the other daughters married. The daughters became entitled to enjoy rent obtained from the houses purchased throughout their life, subject, of course to the condition that the same shall not be alienated. The properties given to the legatees including married daughters, married daughters-in-law, the same were to be inherited by their children with full title on their death. He also saw to it that his friend who had five daughters is provided with some amount for each daughter. From a perusal of the Will, it appears that he had given Rs. 25,000/- for some charitable purposes. The executors were asked to pay Rs. 10,000/- to Mysore University and from the interest of that amount, arrangements were directed to be made to award scholarship to promote educ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scendancy the executor had used the expression 'heirs' in regard to the succession of property after their death, which were bequeathed in their favour; the expression 'children' has been used in relation to the inheritance of the property bequeathed in favour of daughters and daughters in law. The expressions 'children', 'issue' and 'heirs' would ordinarily be not synonymous but sometimes they may carry the same meaning. All the aforementioned terms have to be given their appropriate meanings. In P. Ramanatha Aiyar's Advanced Law Lexicon at page 2111, it is stated: "There is doubtless a technical difference in the meaning of the two words "heirs" and "children", and yet in common speech they are often used as synonymous. The technical distinction between the terms is not to be resorted to in the construction of a will, except in nicely balanced cases. "When the general term "heirs" is used in a will, it will be construed to mean 'child' or 'children', if the context shows that such was the intent of the testator." Where the words "children" and "heirs" are used in the same instrument in speaking of the same persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration the purport and object of the Act. In Daya Singh (Dead) through Lrs. and Anr. vs. Dhan Kaur [(1974) 1 SCC 700], referring to the decision of the Privy Council in Duni Chand vs. Anar Kali [AIR 1946 PC 173], this Court opined : "It would be noticed that the Privy Council interpreted the words "dying intestate" as merely meaning "in the case of intestacy of a Hindu male" and said that to place this interpretation on the Act is not to give retrospective effect to its provisions. Those are the very words found in Section 8. These may be contrasted with the words of Section 6 "where a male Hindu dies after the commencement of this Act." Here the reference is clearly to the time of the death. In Section 8 it is only to the fact of intestacy. The material point of time, as pointed out by the Privy Council, is the date when the succession opens, namely, the death of the widow. It is interesting to note that the Privy Council was interpreting the provisions of the Hindu Law of Inheritance (Amendment) Act, 1929 where the two contrasting expressions found in the Hindu Succession Act, 1956 are not found. The case for the interpretation of the words "dying intestate" under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso become his "legal heirs" by some change in law. The language of clause (i) does, no doubt, convey the intention of the testator, viz., immediate bequest (for life) is to Satyawati and the ultimate (absolute) bequest is to his legal heirs after the death of Satyawati. But this clause has to be read, understood and construed in the light of the rule contained in Section 119 of the Indian Succession Act, as explained hereinabove with the necessary consequence, which too has been set out hereinabove." It was opined that Section 14(1) of the Hindu Succession Act, 1956 would have no application as she was not possessed of the entire property on the date of commencement thereof. However, it was held that she became the absolute owner in respect of the first floor of the house in question. The decision of this Court in N. Krishnammal (supra), in the aforementioned fact situation, was held to be not applicable, stating that it was not a case of contingent bequest. Plaintiffs who are the daughters of the original defendant No. 1, in law was not entitled to inherit their father's share in the properties but for the provisions of the Hindu Succession Act, which brought st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Will, the question of his son's inheriting the property from the original defendant No.1 did not arise. Mr. Bhat is correct in his submission that the suit was pre-mature as no cause of action for the suit arose for the plaintiffs for obtaining a decree to set aside the deed of sale dated 3.12.1975. The cause of action arose on the death of the original defendant No.1 which took place during pendency of the suit. If the cause of action arose during pendency of the suit and if having regard to the facts and circumstances of this case, the suit keeping in view the subsequent event could not have been dismissed on the ground that it was barred under the law of limitation, we are of the opinion that it would not be proper for us to interfere with the impugned judgment. An appeal is in continuation of the suit. The appellate court in view of Order VII Rule 7 of the Code of Civil Procedure may take into consideration subsequent events with a view to mould the relief. The High Court, therefore, could not be said to have acted illegally and wholly without jurisdiction in passing the impugned judgment. In Vithalbhai (P) Ltd. v. Union Bank of India [(2005) 4 SCC 315], the law is sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ginal defendant no. 1 and not prior thereto. In Prem Singh (supra), this Court construed the said provisions in the light of a similar contention raised as in Madhukar Vishwanath (supra) that the deed of sale being void, the provisions of Article 59 will have no application. The fact situation prevailing therein was different. Submission of Mr. Lalit that his clients are bona fide purchasers is not of much significance in this case. If the deed of sale executed by the original defendant No.1 and the Respondent No.3 is void and thus, not binding upon the plaintiffs-respondents, the consequences therefor would ensue. What would be the effect of the sale deed vis-`-vis the Respondent No.3, as we have noticed hereinbefore, would be different having regard to the provisions contained in Section 41 of the Transfer of Property Act. In the event a partition suit is filed, which property shall be allowed 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. For the reasons aforementioned, we are of the opinion that no case has been made ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
