TMI Blog2004 (4) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to for short as the said Hospital). The bequeath in respect of the said property was made vide paragraph 2 of the will which is reproduced herein below: I bequeath my bungalow situated at Circular Road, Kapurthala, known as kothi S. Tirloki Nath Singh to Randhir Jagjit Hospital, Kapurthala, absolutely and forever for the use of as a ward of the Hospital patients as and this estate should not be used or utilized for any other purpose than described above. Area of the property is 90 kanals, Khewat No.1/180, Khasra No.4971, consists of 4 servant quarters, 2 garages, 2 kothries, langarkhana with verandah, 2 kothries, one dalan, 2 kothries, maweshikhana, 6 kothries, 2 dalans, pacca well with iron persion well fitted, garden orchard, cultivated lands surmounted by on North, Government landed property south road, East Garden Diwan Ahudhya Dass West, landed property will not be sold or mortgaged or disposed off in any other way. This property will remain in the name of my late husband S. Triloki Nath Singh, for the maintenance and improvement of this institution. The income derived from this garden, landed properties etc. should be used on the up-keep and maintenance and impro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority against respondent no.1 declaring him to be unauthorized occupant of the premises. Being aggrieved by the order of eviction, respondent no.1 preferred appeal to the Commissioner under section 9 of the 1973 Act. By judgment and order dated 8.5.1984, the appeal was dismissed. During this period, the title suit instituted by respondent no.1 being suit no.124 of 1977 came to be decreed on 15.1.1979 by Senior Sub Judge, Kapurthala who took the view that respondent no.1 was a lessee and he was entitled to maintain the said suit. The trial Court further held that on the death of testatrix on 26.11.1962, the said property vested in the executors and not in the State and, therefore, the proceedings under the 1973 Act were not maintainable. Being aggrieved, the government preferred Civil Appeal No.29 of 1979 before the lower appellate court which found that respondent no.1 had no locus standi to bring the title suit; that the State was a beneficiary under the will and on the death of the testatrix, the said property had vested in the State as a legatee to which respondent no.1 cannot raise any objection as he had no right to challenge the title of the legatee under the will. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... testatrix and not as to whether the executors were required to obtain a probate. In this connection it was urged that under section 211, the property vests in the executors by virtue of the will and not by virtue of the probate. On the demise of the testatrix, the property vested in the executors. According to the learned advocate, the word 'vesting' in section 211 was only for the purposes of representation and it did not refer to vesting of beneficial interest in the property in the executors. Learned counsel submitted that under the will, the said property was bequeathed to the hospital. It was the desire of the testatrix that the said property shall be used as a ward in the hospital in the name of her late husband. While interpreting the will, it was urged, that the Court must sit in the armchair of the testatrix and the said will has to be interpreted in the light of her desire expressed therein. It was urged that the High Court had erred in holding that the ownership of the demised premises did not vest in the said Hospital; that the said Hospital was only a beneficiary under the will and, therefore, the said demised property did not constitute public premises under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revenue records did not confer title on it. Alternatively, it was submitted that the matter refers to complicated questions of title and, therefore, the matter was not triable under the provisions of the 1973 Act. Learned counsel for respondent No.1 next contended that in the present case the lease was executed on 7.6.1962 by the constituted Attorney of Smt. Chanan Kaur (testatrix) for ten years and under the lease respondent No.1 could make constructions, and pursuant thereto, respondent No.1 had constructed a factory. Under clause 8, it was urged that the right of renewal was given to respondent No.1. In this connection, it was urged that correspondence had taken place in 1972 between the parties and by letter dated 22nd May 1972, respondent No.1 had sought renewal of the lease. It was contended that request for renewal was made both to the executors as well as to the appellant to which neither replied. It was submitted that in any event, clause 8 provided for automatic renewal and, therefore, there was no need to make an application for renewal. In the circumstances, it was urged that respondent no.1 cannot be said to be in unauthorized occupation of the property. It was co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be used for maintenance and improvement so that in future the continuity of the said ward in the hospital is not adversely affected for want of funds. In our view, the High Court erred in holding that the said Hospital was a beneficiary and not the owner. In the circumstances, the said property constituted public premises under section 2(e) of the 1973 Act. It was however urged on behalf of respondent No. 1 that the said property did not vest in the appellant; that under section 211 of the 1925 Act, it had vested in the executors who had applied for probate but which was refused by the testamentary court, and, therefore, the said property never vested in the appellant. We do not find any merit in this argument. Sections 211 and 213 of 1925 Act read as follows: Section 211. Character and property of executor or administration as such. (1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such. (2) When the deceased was a Hindu, Muhammadan, Buddhist, Sikh, Jaina or Parsi or an exempted person, nothing herein contained shall vest in an executor or ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shment of rights under the will by an executor or a legatee unless probate or letters of administration have been obtained. This bar comes into play only when a right as an executor or a legatee under will is sought to be established. However an un-probated will can be admitted in evidence for collateral purposes in any other proceedings apart from a probate proceedings. (See: Cherichi v. Ittianam reported in [AIR 2001 Kerala 184]). Therefore, on the demise of the testatrix, the said property vested in the executors. The question which arises for determination on the facts of this case is whether the executors assented to the vesting of the said property in the Hospital in terms of section 336 of the 1925 Act. In this case, the facts show that the executors never objected to the vesting of the said property in the hospital. Three executors were appointed under the will. They never objected to the legacy. Several meetings of the executors had taken place both before the death of the testatrix on 26th November 1962 and even thereafter for updating the accounts and to obtain probate and at no stage they objected to the vesting of the property in the Hospital. Although application for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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