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Gift Tax Act, 1958/Indian Succession Act, 1925: Section 5(1)(xi)/Section 191-Gift in contemplation of death- Essential requirements of-Gift of movable property-Donor seriously ill at the time of execution of deed and died shortly thereafter-Delivery of possession of gifted property effected-No indication in the document specifically or impliedly that gift would be effective only if donor died or liable to be revoked in case donor recovered-Whether gift valid-Whether entitled to exemption. Mohammedan Law: Marz-ul-maut (death-bed illness)-What is-Gift made during marz-ul-maut-Whether entitled to exemption under Gift Tax Act-Section 191, Indian Succession Act-Applicability of. =Gift to certain movable assets was made to the respondent assessee by a Muslim businessman, when he was seriously ill, and died of the illness after six weeks of the execution of the document. In gift-tax assessment proceedings, the assessee claimed exemption for this gift under Section 5(1)(xi) of the Gift Tax Act, 1958, on the ground that the gift was made in contemplation of death. The Gift Tax Officer rejected the claim. But, on appeal, the Appellate Assistant Commissioner allowed the exemption relying on the circumstances under which the gift was made and the events followed thereafter and the evidence of the Sub-Registrar, who was brought to residence for effecting registration, and the doctor, who was treating the donor. On appeal by the Gift-Tax Officer, the Tribunal affirmed the finding of the Appellate Assistant Commissioner regarding the donor’s illness but did not allow the exemption on the ground that, though there was delivery of possession of the gifted movables, the gift was unconditional and absolute, since it had not been specifically expressed or impliedly present in the deed that the gift must revert back in the event of the donor recovering from illness and that the gifted property had to be kept as a gift in case the donor died of his illness. However, on a reference made at the instance of the assessee for opinion, the High Court held that such a condition need not be mentioned in the deed and 847 it could be inferred from the attending circumstances of the gift, and since the donor was actually sick at the time of execution of the deed and died of the same illness without recovery, after a short period, the gift in question was made in contemplation of death and therefore, entitled to exemption from tax under Section 5(1)(xi) of the Act. In the appeal before this Court, on behalf of the Department it was contended that the gift in contemplation of death should be conditional, and in the absence of indications in the document to the effect that if the donor did not die, he should be entitled to remain in complete domination of the gifted property, the gift would become inter vivos and absolute, and that the exemption under Section 5(1)(xi) of the Gift Tax Act was not available to the assessee, since Section 191 of the Indian Succession Act was not applicable to marz-ul-maut gift. Dismissing the appeal by the Department, this Court HELD: 1.1 Explanation (d) to sub-section (2) of Section 5 of the Gift Tax Act, 1958 states that a gift made in contemplation of death has the same meaning as in Section 191 of the Indian Succession Act, 1925. The requirements of a gift in contemplation of death as laid down by Section 191 are: (i) the gift must be of movable property; (ii) it must be made in contemplation of death; (iii) the donor must be ill and he expects to die shortly of the illness; (iv) possession of the property should be delivered to the done; and (v) the gift does not effect if the donor recovers from the illness or the donee predeceases the donor. These requirements are similar to the constituent elements of a valid donatio martis causa. [853C-E] Cain v. Moon, [1893] 2 Q.B. 283 @ 286, referred to. 1.2. In the instant case, all the conditions prescribed, except perhaps the last one are found present by the fact finding authorities. [853G] 1.3. The recitals in the deed of gift are not conclusive to determine the nature and validity of the gift. The party may produce evidence aliunde to prove that the donor gifted the property when he was seriously ill and contemplating his death with no hope of recovery. These factors in conjunction with the factum of death of the donor may be sufficient to infer that the gift was made in contemplation of death. It is implicit in such circumstances that the donee becomes the owner of the gifted property only if the donor dies of the illness and if the donor recovers from the illness, the recovery itself operates as a revocation of the gift. [854B-C] 848 1.4 It is not necessary to state in the gift deed that donee becomes owner of the property only upon the death of the donor. Nor it is necessary to specify that the gift is liable to be revoked upon the donor’s recovery from the illness. The law acknowledges these conditions from the circumstances under which the gift is made. [854C-D] Halsbury’s Laws of England, 4th Edn. Vol. 20 p. 41 para 67; Jerman on Wills, 8th Edn. Vol, 1 p. 46-47; Williams on “Executors and Administrators”, 14th Edn. p. 315, and Corpus Juris Secundum, vol. 38 p. 782 and p. 917 para 110, referred to. 1.5 In the light of this and in view of the findings recorded by the Tribunal about the serious sickness of the donor and his state of mind at the time of making the gift in question, it can be reasonably concluded that the gift was not absolute and irrevocable. On the contrary, it would be legitimate to infer that the gift was in contemplation of death. any other view would be inappropriate. [856A-B] 2.1 Marz-ul-maut is also entitled to exemption from gift tax under Section 5(1)(xi) of the Gift Tax Act, 1958. [856B] 2.2 The exemption to gift in contemplation of death is provided under Section 5(1)(xi) of the Gift Tax Act, and not under Section 191 of the Indian Succession Act, Section 191 furnishes only the meaning or requirements of gift in contemplation of death. It a gift in contemplation of death is recognised by the personal law of parties satisfying the conditions contemplated under Section 191 of the Indian Succession Act, cannot be denied exemption under Section 5(1)(xi) of the Act, Even assuming that Section 191 as such will not be applicable to the parties. [856C-D] 2.3 Under Mohammedan Law gift made during marz-ul-maut (death-bed-illness) is subject to very strict scrutiny and subject to all other conditions necessary for the validity of a hiba or gift, including delivery of possession of the donor to the donee. [856D] Mulla’s Mohammedan Law, pp. 111 Sections 135 & 136, referred to. 2.4 Marz-ul-maut is a malady which induces an apprehension of death inthe person suffering from it and which eventually results in his death. There are three tests laid down to determine whether illness is to be regarded as marz-ul-maut. They are; (i) Proximate danger of death 849 so that there is preponderance of khauf or apprehension that at the given time death must be more probable than life. (2) There must be some degree of subjective apprehension of death in the mind of the sick person. (3) There must be external indicia chief among which would be the inability to attend to ordinary avocations. [856E-F] Rashid Karmalli and anr. v. Sherbanoo, [1907] 31 ILR Bombay 2641, referred to. 2.5 Therefore, under the Principles of Mohammedan Law, the gift made in marz-ul-maut could be regarded as gift made in contemplation of death, since it has all the requisites prescribed under Section 191 of the Indian Succession Act, 1925. The only limitation is that the disposition is restricted to a third on account of the right of the heirs. [857C-D] Syed Ameer Ali: Mohammedan Law, Vol. 1, 4th Edn. 1985 p. 59-60, referred to. =1991 AIR 1847, 1991( 2 )SCR 846, 1991( 3 )SCC 520, 1991( 2 )SCALE11 , 1991( 3 )JT 67

PETITIONER: COMMISSIONER OF GIFT TAX, ERNAKULAM Vs. RESPONDENT: ABDUL KARIM MOHD. (DEAD) BY LRS. DATE OF JUDGMENT10/07/1991 BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) YOGESHWAR DAYAL (J) CITATION: 1991 AIR 1847 1991 SCR (2) 846 1991 SCC (3) 520 JT 1991 (3) 67 1991 SCALE (2)11 ACT: Gift Tax Act, 1958/Indian Succession Act, 1925: … Continue reading

Indian Succession Act, 1925; Ss. 2(f), 2(h), 63, 211, 212, 213, 214, 218, 219, 220, 221, 227, 235, 263, 273, 278, 297, 307 and 332: Testator bequeathing property in dispute to his son from third wife ignoring other legal heirs-Grant of probate/Letter of Administration-Suit for partition of the property filed by other legal heirs-Agreements to sell the property in dispute entered into between the testator and vendee- Execution thereof by the executor-son after death of his father/testator- Revocation of probate on ground of non-citation-Sale transactions-Validity of-Held: Agreement to sell the property executed and certain amount as part consideration received by testator himself during his life time-Testator had strained relations with his second wife and sons but had cordial relations with his third wife and son-Testator bequeathed his properties to his son from third wife out of love and affection, and appointed the son as constituted attorney for negotiations and selling of the property-No abnormality found in testator appointing one of his sons as constituted attorney-Trial Court failed to take into account the proved preponderatory circumstances but was influenced by unconsequential matters in holding the will as not genuine- Grant of Probate establishes the genuineness of the will-Grantee entitled to convey the title-If propounder did not take appropriate steps by mistake to notify his heirs before obtaining probate, third party/purchaser, if acted bonafidely, not answerable to the mistake committed by the grantee-Since Vendees invested huge amount to free the suit premises from requisition, acquisition and other encumbrances, they were bound to expedite the sale after grant of probate-Since partition suit filed by other legal heirs, sons from second wife of the testator, and the suit premises got demolished and a new building constructed thereon, it shows that other legal heirs also had knowledge of these events-They knowingly allowed the executor of the will to represent himself as owner of the suit property-Hence, Vendee is bonafide purchaser for value-Indian Evidence Act, 1872-Section 68. Effect of affidavit and counter affidavit on the genuineness of the will- Held: Initially mother of the executor alleged the will as forged in terms of affidavit filed by her at an interim stage of the proceedings, she rectified the earlier statement by supporting the genuineness of contents and signatures of testator on the will by filing another affidavit-These evidence not shaken- Hence, alleged suspicious circumstances stand cleared. Revocation of grant-Circumstances-Held: Liable to be revoked if obtained fraudulently-Probate Court revoked the grant on ground of non- citation- Since the executor of the will deposed that he could not cite his two step sisters due to mis-conception and not on account of fraud, Courts below erred in concluding that the probate was obtained by the executor fraudulently. Constitution of India, 1950; Article 136-Scope of-Discussed. Transfer of Property Act-Section 41-Applicability of-Discussed. Words and Phrases: `Executor’ and ` administrator’-Distinction between. A partition suit was filed by the legal heirs, sons of the deceased/ testator, claiming their share in the properties. The deceased had three wives (One of whom died during his life time) and nine children. He was living along with his third wife (defendant No.l) and son (defendant No.2) since he was having strained relations with his second wife and other children. Defendant No.2 contested the suit relying on several documentary evidence including the registered Will made by his father during his life time, bequeathing the disputed properties in his favour. The disputed property was transferred by defendant No.2 in favour of the appellant/ Vendee (defendant No.14 in the suit). Subsequently the property was transferred by the appellant in favour of defendant Nos. 15 to 20. Trial Court decreed the suit holding that defendant No.14 was not bonafide purchaser since the agreements (Ex.A/1 and ExA/2) for sale of the disputed properties were executed by defendant No.2 as constituted attorney when his father, owner of the property was alive; that the probate was obtained by defendant No.2 without service of the citations on his step sisters; that the suit for specific performance filed by the Vendee was settled in haste as the transfer deed (Ex.A/8) was executed by defendant No.2 even without receiving the total consideration amount from the vendee; and that the property was further sold to defendant Nos. 15 to 20 even after revocation of the grant of probate. The order of the Trial Court was affirmed by the High Court. Hence the present appeals. It was contended by the appellants that although Ex.A/1 and Ex. A/ 2 were executed by defendant No.2 as constituted attorney of the deceased, certain amount was received by the deceased from defendant No.14 as evidenced by receipts Ex.A/3 and Ex/A/4, which establish that the deceased during his life time had intended to sell the suit property. Thus, Ex.A/1 was binding on him as also on his heirs; that since Ex.A/8 was executed pursuant to the agreements for sale of the properties, Ex.A/1, Ex.A/2 and the probate, it was binding on the estate of the deceased; that it was not open to the plaintiffs/other legal heirs to impugn transfer deed, Ex.A/8, as fictitious or fraudulent as they had acquiesced and allowed the suit property to be freed from encumbrances by the vendees; that Ex.A/8 was entered into only after thorough search of the title deeds and the documents, including the probate; that defendant No.14 had paid the balance consideration amount to defendant No.2 who was the executor under the will; that in terms of the order of the Court defendant No.2 was brought on record as the executor under the will on demise of his father, the testator; that the second wife of the deceased was aware of defendant No.2 being appointed as an executor; that the probate Court has revoked the grant only on the ground of non- citation which was admitted by PW1 in his evidence; that the revocation cannot annul the impugned disposition which was effected during the period when probate was in existence; that in the absence of allegation of fraud or collusion against defendant No.14, both the Courts below erred in holding that defendant No.14 was not at arms length to defendant No.2, since fraud and collusion have to be alleged and proved; and that defendant No.14 had completed the sale only after the grant of probate. Thus, defendant No.14 was a bona fide purchaser and since defendants Nos.15 to 20 had derived title from defendant No.14, they are also protected. It was submitted by the respondents that defendant Nos. 14 to 20 were not entitled to rely upon the probate or the will in support of their case in view of the concession made by them before the Division Bench of the High Court; that probate granted without will being proved in accordance with Section 63 of the Indian Succession Act and Section 68 of the Evidence Act is void ab initio; that the impugned will was surrounded by suspicious circumstances and that the onus was on defendant No.2 or defendant No.14 to remove or explain those circumstances; that the consent decree was a collusive decree entered into with the intention to defeat the rights of the plaintiffs/other heirs in the partition suit; that defendant No.14 or defendant Nos. 15 to 20 cannot claim protection for the transfer, which originated from fraud.; that suit for specific performance was filed by defendant No.14 to complete the sale at the earliest; that the total price/consideration amount payable was higher but defendant No.2 transferred the property for lesser amount; and that by surreptitious method, defendant No.14 in connivance with defendant No.2 as constituted attorney executed Ex.A/2 after death of the owner of the property. =Allowing Civil Appeal Nos. 6258 and 6259 of 2000 and disposing of Civil Appeal Nos. 6871-6873 of 2003 as having become infructuous, the Court HELD: 1.1. Sections 211, 212 and 213 of the Indian Succession Act bring out a dichotomy between an executor and an administrator. They indicate that the property shall vest in the executor by virtue of the will whereas the property will vest in the administrator by virtue of the grant of the letters of administration by the Court. These sections indicate that an executor is the creature of the will whereas an administrator derives all his rights from the grant of letters of administration by the Court. In the case of letters of administration, intermediate acts of the grantee are not protected whereas in the case of probate, all such acts are treated as valid. [54-B; 55-A] 1.2. Under Section 263 of the Act, grant of probate of letters of administration is liable to be revoked on any of five grounds mentioned therein. One of the grounds is failure on the part of the grantee to exhibit/ file an inventory or statement of account Similarly, the probate or letter of administration is liable to be revoked if the grant is obtained fraudulently. If the grant is not ab initio void in the case of non-filing of inventory or statement of account then equally it cannot be ab initio void, if it is obtained fraudulently. If the intermediate act of the executor is not for the purpose of administration of the estate or if the act is performed in breach of trust then such act(s) is not protected. However, acts which are in consonance with the testator’s intention and which are compatible with the administration of the estate are protected. Therefore, on reading Sections 211, 227 along with Section 263 of the Act, it is clear that revocation of the grant shall operate prospectively and such revocation shall not invalidate the bona fide intermediate acts performed by the grantee during the pendency of the probate. [55-G, H; 56- A, B] 1.3. Section 273 of the Act refers to conclusiveness of the probate as to the representative title. It establishes the factum of the will and the legal character of the executor and all the property of the deceased testator from the date of the death of the testator, as long as the grant stands. Under Section 41 of the Evidence Act, the grant operates as judgment in rem and can be set aside on the ground of fraud or collusion provided it is pleaded and proved by the party so alleging. It is, therefore, not a pure question of law. Hence, the revocation will not operate retrospectively so as to obliterate all intermediate acts of the executor performed during the existence of the probate, however, if the intermediate acts are incompatible with the administration of the estate, they will not be protected. That the conclusiveness under Section 273 is of validity and contents of the will. [57-B, C, D] Lady Dinbai Dinshaw Petit and Ors. v. The Dominion of India and Anr., AIR (1951) Bombay 72; S. Parthasarthy Aiyar v. M. Subbaraya Gramany and Anr., AIR (1924) Madras 67; Mt. Azimunnisa Begum v. Sirdar Ali Khan and Ors., AIR (1927) Bombay 387; Cherichi v. Ittianam and Ors., AIR (2001) Kerala 184; Sheonath Singh v. Madanlal, AIR (1959) Raj. 243; Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Base and Ors. AIR (1962) SC 1471; Komollochun Dutt and Ors. v. Nilruttun Mundle 4 ILR Cal.360; Akshay Kumar Pal v. Nandalal Das, ILR (1946) 1 Cal. 432 and Valerine Basil Pais (dead) by Lrs. v. Gilbert William James Pais and Anr., (1993) 2 Kar. LJ 301, referred to. 1.4. The finding of the Trial Court is perverse since it is clear that the probate was revoked only on account of non-citation and despite this evidence, the Trial Court holds that the probate was revoked on the ground of forgery and fraud apart from non-citation. Hence, finding of the Trial Court is unsustainable for want of evidence. [60-F, G, H] 2.1. The testator had married thrice. His first wife pre-deceased him. When he made the will he had two wives and nine children. He was strong willed person who was conscious of his legal rights and had considerable properties. During his life time itself, he asserted his legal rights qua the tenants and used to litigate on every issue. He collected rent from the tenants. He filed eviction and rent collection suits against the tenants. He sued his second wife by filing numerous cases. He was at one point of timeliving with his second wife and her sons in one of the properties. However, his second wife and her sons started disobeying him; they were ungrateful to him; he was ill-treated by them and that thereafter he has been living with his third wife and her son. In the circumstances, there was no question of defendant No.2, executor of the will influencing his father/testator in the making of the will bequeathing the suit premises to him. [62-G, H; 63-A; 64-B-C-D] 2.2. The evidence shows that during the life time of the testator, agreements for sale of the properties, Ex.A/1 and Ex.A/2, came to be executed. That although Ex.A/1 and Ex.A/2 were executed by defendant No.2 as the constituted attorney of the deceased/testator, certain amount was received by the testator himself from defendant No.l4/vendee, which is uncontroverted evidence, and which indicates that the testator was aware of Ex.A/1 and that he intended to sell the suit premises to defendant No.14. Fur her, he lived for almost three years after making the will. He found defendant No.2 to be obedient. He loved defendant Nos. 1 and 2. These basic tell-tale circumstances have not been considered by the Courts below. Both the Courts below have drawn inferences from circumstances with dead uniformity and without realistic diversity. The basic error committed by the Courts below is that it has examined the alleged suspicious circumstances de hors the tell-tale circumstances duly established by evidence and the contents of the will. In the light of the above circumstances, the factors relied upon by the Courts below are not relevant particularly in the context of deciding the question whether the testator had approved the impugned disposition in favour of defendant No.2. [64-E, F, G, H; 65-A] Surendra Nath Chatterji v. Jahnavi Charan Mukherji, AIR (1929) Cal. 484 and Smt. Indu Bala Base and Ors. v. Manindra Chandra Base and Anr., AIR (1982) SC 133, referred to. 3.1. The Trial Court has placed reliance on the affidavit of defendant No.l, third wife of the testator, in which she has alleged that the will was forged; and that it was outcome of undue influence exercised by defendant No.2 on his father. However, the said affidavit has been filed by her at an interim stage and it is not put in evidence. Subsequently, she filed another affidavit whereby she confirms the signature of her husband, the testator on the power of attorney in favour of defendant No.2. She also confirms the sale by defendant No.2 in favour of defendant No.14. Defendant No.2 in his evidence has explained that the first affidavit was filed by his mother under misconception and subsequently on going through the papers she had rectified her earlier position. This evidence has not been shaken. Therefore, the alleged suspicious circumstance stood cleared. [65-B, C, D] 3.2. The execution of power of attorney by the testator was found to be abnormal by the Trial Court. He was 90 years of age. Negotiation for sale is a tedious and laborious task. Though he was hale and hearty but to negotiate and sell the property was difficult for an old man. Hence, there could be no abnormality in the son being appointed as constituted attorney, particularly when under the will he was the legatee. The Trial Court has come to the conclusion that the power of attorney was not produced in evidence by him and consequently execution of Ex.A/1 by constituted attorney was to defraud the testator and his heirs. However, the Trial Court has failed to consider the evidence of defendant No.2 stating that a part of sale consideration was received by the testator. [65-D, E, F] 3.3 Another circumstance which the Trial Court takes into account is that defendant No.2 has received payments of Rs.9.54 lacs whereas under the agreement (Ex.A/1) he was entitled to receive Rs.15 lacks. However, no suggestion was put to him in cross-examination on this point. In the absence of allegations the Trial Court could not have proceeded on the circumstance to hold that property was sold at a lesser price. In fact, there was no such plea taken by the plaintiffs/legal heirs. [65-G, H; 66-A, B] Surendra Nath Chatterji v. Jahnavi Charan Mukherji, AIR (1929) Cal. 484, referred to. 3.4. The Trial Court placed reliance on revocation of probate. According to the Trial Court the will was forged. However, this finding was without evidence. [66-C] Naresh Chandra Ghosh and Ors. v. Archit Vanijya and Viniyog Ltd. and Ors., (1998) 2 Cal. L.J. 344, distinguished. 4. The findings of the Courts below are not based on evidence. The Trial Court has failed to take into account the proved preponderatory circumstances and it was influenced by inconsequential matters in holding that the -will was not genuine. It is reiterated that revocation of the probate operates prospectively; that such revocation does not obliterate bona fide transactions entered into by the executor during the pendency of the probate. The findings of the Courts below are perfunctory. High Court has given a finding that in 1982 defendant No.2 got impleaded in a suit without disclosing the conveyance. No particulars of the order of impleadment have been given. However, it has been found that order dated 21.8.1982 passed by Additional District Judge in Misc. Case No.3/80 in which the testator was a party as a shebait and the subject matter of the case was quite different. Further, Ex.A/8 in the present case concerning the suit premises was not relevant in the Misc. case as the subject matter of the two cases was different That in any event the order was not put to defendant No.2 in cross-examination. In the circumstances, the High Court erred in holding that defendant No.2 had deliberately withheld the disclosure of the conveyance and the probate. [66-F, G; 67-B, C, D, E] 5. The High Court has also given a finding that defendant No.2 had obtained the probate fraudulently without service of citation on his mother and two step sisters. There is no evidence. On the contrary, the Probate Court had rejected the application for revocation made by another son of the testator on the ground of forgery and fraud. High Court erred in disbelieving defendant No.2 when he deposed that his two step sisters were not cited as they were not the legatees. This was due to misconception and not on account of fraud. Lastly, the High Court has observed that the will is lying in the state of derelict without being probated. After revocation, defendant No.2 applied for revival of proceedings; that order of revival was passed and it was challenged by one of the sons of the testator. Therefore, these circumstances indicate the strained relationship between the parties, their propensity to litigate at every stage have not been considered by the Courts below. Hence, the findings of the Courts below are based on conjectures and suspicion and that relevant circumstances have not been taken into account. [67-F, H; 68-A, B] 6. The grant of probate establishes the genuineness of the will and the person in whose favour the probate is granted is entitled to convey the title arising out of the will probated by the Court. It may happen that the propounder did not take appropriate steps, by mistake, to notify the other heirs before obtaining probate. But the third party who acts bona fide and deals with the grantee cannot be made answerable to the fraud or mistakes committed by the propounder. [68-E, F] Valerine Basil Pais (dead) by Lrs. v. Gilbert William James Pais and Anr., (1993) 2 Kar. L.J. 301, referred to. 7. Without allegation of collusion against developers, both the Courts erred in holding, without evidence, that Ex.A/8 was collusive as it was got executed expeditiously. The evidence shows the propensity of the family to litigate on every issue. Appellant, the developers had invested huge amount not only in the payment of consideration but also by way of costs incurred to free the suit premises from requisition, acquisition and other encumbrances including eviction of tenants. Under these circumstances, after the probate, the developers were bound to expedite the sale. Even according to the Division Bench of the High Court, defendant No.2 was not reliable. In the circumstances, without evidence, the Courts below erred on the basis of expedition of sale that Ex.A/8 was fictitious and based on collusion between defendant No.2 and defendant No.14. [70-C, D, E] 8. The second wife of the testator was aware of the will. However, she did not apply for letters of administration. She did not challenge the will. The plaint was amended. The developers demolished the old building and constructed a multi-storied building. They got freed the property from all encumbrances. In the circumstances, it cannot be said that the other heirs of testator had no knowledge of these events. Hence, the test laid down by the High Court in the case of Naresh Chandra Ghosh and Ors. v. Archil Vanijya & Viniyog Ltd. and Ors. in the matter of applicability of Section 41 of the Transfer of Property Act is squarely applicable to the facts of the present case. The intestate heirs of the testator allowed defendant No.2 to represent to the developers that he was the owner of the suit premises. It is established by the conduct of the inaction on the part of the intestate heirs of the testator. Hence, defendant No.14 was bona fide purchaser for value. [71-B, C, D, E] Gurbaksh Singh v. Nikka Singh and Anr., AIR (1963) SC 1917, relied on. Seshumull M. Shah v. Sayed Abdul Rashid and Ors. AIR (1991) Kar.273 and Naresh Chandra Ghosh and Ors. v. Archit Vanijya & Viniyog Ltd. and Ors., (1998) 2 Cal. L.J. 344, approved. 9. Under the will, the suit premises have been bequeathed by the testator to defendant No.2, his son from the third wife who is also appointed as an executor. Therefore, there is nothing to suggest that Ex.A/ 8 was incompatible with the administration of the estate of the testator. In the circumstances, defendant No.14 was a bona fide purchaser for value and the alienation effected by defendant No. 14 in favour of defendants No.15 to 20 was valid. Before the Trial Court, defendant No.14 and defendant Nos. 15 to 20 had asked for stay of the partition suit pending decision by the Probate Court. It was objected to by the plaintiffs. The objection of the plaintiffs was upheld and the matter was decided against the defendants. Besides, before the Trial Court, it was the plaintiffs who had relied upon the alleged suspicious circumstances surrounding the will. In the circumstances, defendants No.14 to 20 cannot be prevented from relying on the probate and the will. [71-G; 72-D, E] G.F.F. Foulkes and Ors. v. A.S. Suppan Chettiar and Anr., AIR (1951) Madras 296, referred to. 10.1. Generally, this Court does not interfere with the concurrent findings recorded by the Courts below in civil appeals by way of special leave under Article 136 of the Constitution of India. However, in cases where the Courts below have given findings on documents and on the basis of assumption and inferences founded on facts and circumstances, which in themselves offer no direct or positive support for the conclusion reached, it is incumbent duty of the Court to review such inferential process. In such cases, the right of this Court to review such inferential process cannot be denied. It is well settled that inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not with dead uniformity. [72-F, G] 10.2.In the instant case, the concurrent findings recorded by the Courts below are interfered with. The judgment and decree of both the Courts below are set aside and the suit for partition stands dismissed. Interim order, if any, against the appellants stands vacated. [72-H; 73-A] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6258 of 2000. =2004 AIR 4980, 2004(5 )Suppl.SCR31 , 2005(9 )SCC375 , 2004(8 )SCALE390 , 2004(9 )JT64

CASE NO.: Appeal (civil) 6258 of 2000 PETITIONER: Crystal Developers RESPONDENT: Smt. Asha Lata Ghosh (Dead)Thr.Lrs.Ors. DATE OF JUDGMENT: 05/10/2004 BENCH: ASHOK BHAN & S.H. KAPADIA JUDGMENT: J U D G M E N T WITH CIVIL APPEAL No.6259/2000 Archit Vanijya & Viniyog Pvt. Ltd. & Ors. Appellants Versus Smt. Asha Lata Ghosh (Dead) Through … Continue reading

Hindu Succession Act 1956-Section 14(1)-Rights of a Female Hindu-‘ Maintenance’-Meaning of-Whether or not the maintenance given to a female Hindu would necessarily encompass a provision for her residence. Specific property allotted to a widow, of a co-parcener in a Hindu joint family, in lieu of her claim for maintenance-Whether said allotment is by virtue of a pre-existing right-Can such claim be equated with a right of ownership. Section 14 of the Hindu Succession Act-Scope of. Object of legislature-To wipe out the disabilities suffered by a Hindu woman, under the old Shastric Law, in regard to ownership of property-To recognise her status as an independent and absolute owner of her property. Sub Sec. (1) of Sec. 14-Large enough in its amplitude to cover every kind of acquisition of property by a female Hindu, including acquisition in lieu of maintenance-Sub Sec. (2) Sec. 14-Confined only to cases where property was acquired for the first time by a Hindu woman without any pre-existing right. Right to receive maintenance-A pre-existing right-Possession of property pursuant to or in recognition of such a right-Sufficient title to enable ripening of possession into full ownership. Legal position prior to enactment of the Act-Right of a female Hindu, in the property-only a limited interest-Disability imposed by law, wiped out and limited interest enlarged to a full and absolute interest under Sec. 14(1) of the Act. Hindu Adoption and Maintenance Act, 7959–Sec. 3(d)-Definition of `Maintenance’-Includes in all cases-Among other things, provision for residence. In the year 1934 , as a result of arbitration proceedings, between one S widow of a co-parcerner in a Hindu joint family and her father-in-law, A certain immovable properties, belonging to the joint family and a lump sum amount of Rs. 38000 was allotted to said S. The terms of the award made it abundantly clear that the said property was allotted to her for her life time, for the purpose of residence and maintenance and upon her death would revert back to, A his heirs and legal representatives. Said A expired in 1945 and in 1956 the Hindu Succession Act came into force. By virtue of Sec. 14(1) of the said Act, property held by a female Hindu immediately, prior to the commencement of the Act was made her absolute property. In April 1960 said S sold the properties in her possession to the predecessor in title of the Appellants/Vendees. Consequently a suit was filed by the legatees under A’s will challenging the validity of the said sale. The Trial Court, dismissed the suit, holding that S had become, by reason of the Act, the full owner of the disputed property and hence the sale was valid. The High Court, in appeal however took a contrary view and set aside the sale, holding that S had only restricted life estate in the property and therefore, had not become the full owner of the said property. The Vendees, in appeal, before this Court, contended that: (a) S had a pre- existing right to maintenance, (b) that the disputed properties having been allotted to her in lieu of that right, she had acquired a limited ownership of the properties under the award in 1934. (c) That on coming into force of the Hindu Succession Act, her limited ownership had blos-somed into a full ownership. The Respondents resisted the said appeal on the grounds that: (a) For the application of Sec. 14(1), it was requisite that the property should have been `acquired’ and that the acquisition was of ownership rights, comparable to those a limited estate holder under the old Hindu Law (b) Since S had been conceded only the right of residence in the disputed property, she had not acquired any right thereto, (c) Sub Sec. (1) of Sec. 14, presupposed the existence of a limited ownership before the same could be converted into a full ownership, (d) Modes of acquisition contemplated in the Explanation to Section 14(1) suggested that it was the right of ownership that was insisted upon and a right in the nature of a right of residence could not be equated with a right of ownership, (e) The fact that . even during the life time of S the reversioners to whom the disputed property belonged as legatees under A’s will could create a mortgage thereof without her permission, indicated that they continued to be owners of the disputed property. (1) The concession in the award of the right of residence in the disputed property to S was over and above the provisions for her maintenance in terms of money, (f) Even if the award conferred a title to the property for the purpose of Sec. 14(1), it did not come from any pre-existing right. =Allowing the appeal this Court HELD : 1.1. When specific property was allotted to a widow in lieu of her claim for maintenance, the allotment was in satisfaction of her right to be maintained out of the joint family property. It was not a grant for the first time without any pre-existing right in the widow. The widow got the property by virtue of pre-existing right, the instrument giving the property being merely a document effectuating such pre-existing right. [378-D] ] 1.2. Sec. 14(1) of the Hindu Succession Act was large in its amplitude and covered every kind of acquisition of property by a female Hindu, including acquisition in lieu of maintenance. Where such property was possessed by her at the date of commencement of the Act, she became its full owner. [378-E] 13. Where property was acquired by a Hindu woman in lieu of her right to maintenance, it was by virtue of a pre-existing right and such acquisition was not within the scope and ambit of Sub- Sec. (2) of Sec. 14, even if the instrument allotting the property prescribed a restricted estate in it. Under the law as it stood prior to the enactment of the Act, a Hindu woman had no more than a limited interest in the property, and the restriction on her interest, being a disability imposed by law, was wiped out and her limited interest enlarged under Sub Sec. (1) of Sec. 14 of the Hindu Succession Act 1956. [378-H; 379-A-B] V. Tulsamma and Ors. v. Sesha Reddy (Dead) by Lrs., [1977] 3 SCR 261, relied on. 2. Sec. 14, was aimed at removing restrictions or limitations on the right of Hindu woman to enjoy, as a full owner property possessed by her, ] so long as her possession was traceable to a lawful origin. It made no difference as to how property was acquired. [379-D] The Explanation to Sec. 14(1) expressly refers to property acquired in lieu of maintenance. Therefore, in respect of property given to a widow and possession by her in lieu of maintenance, there is no further title that she must establish before claiming full ownership under Sec. 14(1). [379-E] Gulwant Kaur and Another v, Mohinder Singh and Ors., [1987] 3 SCR 576, relied on. 3. If a Hindu woman was put in possession of property pursuant to or in recognition of a right to maintenance, it could not be denied that she had acquired a limited right or interest in the property and once that position was accepted it followed that the right got enlarged into full ownership under Sec. 14(1). [379-H; 380-A] 4. The word `acquired’ in Sec. 14(1) is to be given the widest possible meaning. Sub Sec. (2) of Sec 14 was more in nature of a proviso to Sub Sec.(l). It could come into operation only if acquisition by any of the methods indicated therein was made for the first time without there being any pre-existing right in the Hindu woman who was in possession of the property. [380-C] Badri Pershad v. Smt. Kanso Devi, [1970] 2 SCR 95, relied on. 5. The relevant date on which the Hindu woman should be possessed of the property, ought to be the date on which the question of applying the provisions of section 14(1) arise. If on that date the property was possessed by a Hindu woman, it would be held that she was a full owner of it and not merely a limited owner. [380-B] Mongol Singh & Others v. Smt. Rattno (dead), [1967] 3 S.C.R. 45 referred to. 6. Sec. 14 of the Hindu Succession Act was a step in the direction of practical recognition of the equality of the sexes and also a step calculated to ensure uniformity in the law relating to the nature of ownership of `Stridhana’. This dual purpose underlying the Explanation to Sec. 14(1) had to be borne in mind and given effect to when the Section is subjected to analysis and interpretation. Sub Sec. (2) was not to be given a meaning which would defeat that purpose and negative the legislative intent and did not operate to take in properties acquired by a Hindu woman in lieu of maintenance or arrears of maintenance. [382-F-H; 383-A] Bai Vijiya v. Thokorbhai Chelabhai, [1979] 3 SCR 291, referred to. 7. Maintenance necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she is accustomed. Where provision for her residence is made by giving a life interest in property, that provision is made in lieu of a pre existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Sec. 14(1) the Act. [383-H; 384-B] 7.1. Even the position in law as it stood prior to the Act was that a widow who does not succeed to the estate of her husband as his heir is entitled to maintenance out of his separate property as well as out of property in which he was a co-parcerner at the time of his death. She is entitled to reside in the family dwelling house in which she lived with her husband. A widow who is entitled to maintenance may sue, inter alia, for a charge on a specific portion of her husband’s estate for her maintenance and residence. [385-A-B] Mulla’s Hindu Law (Sixth Edition), referred to. 8. In the present case, perusal of the terms of the reference and the award, it is clear that S acquired the disputed property and the sum of Rs. 38,000 in lieu of her pre-existing right to maintenance. Family disputes had made the continuance of joint lodging and boarding impossible and there-fore an arbitrator was appointed “to allot property and cost” to her for her life, for residence and maintenance. There was, therefore, a clear recogni-tion of her pre-existing right to maintenance, because of which she ac-quired, limited ownership rights in the disputed property and upon the coming into force of the act in 1956, the said limited right acquired by her in 1934 blossomed into full ownership. She was therefore entitled to sell the said property. The sale was thus a valid sale. [383-F; B-C] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1304 of 1972.

PETITIONER: MANGAT MAL (DEAD) AND ANR. Vs. RESPONDENT: SMT. PUNNI DEVI (DEAD) AND ORS. DATE OF JUDGMENT01/09/1995 BENCH: M.K. MUKHERJEE, G.T.NANAVATI ACT: HEADNOTE:JUDGMENT: JUDGMENT BHARUCHA, J. This appeal by special leave impugns the judgment and order dated 8th May, 1970 of the High Court of Rajasthan. The issue in the appeal relates to the application … Continue reading

Limitation Act: Sections 18, 19 and 20–Acknowledgment of debt–When saves limitation. Muslim Personal Law–Liability to discharge debts de- volves on heirs proportionate to their respective Shares in the estate of the deceased. = One Vellappa Rawther, deceased, had incurred debt by means of two promissory notes for Rs.25,000 and Rs.50,000. In the suits filed on the basis of the promissory notes, the Trial Court granted a decree against the estate of Vellappa Rawther in the hands of defendants 2 to 10. The High Court on appeal modified the decree reducing it to one fourth of the decreed sum and focussed the liability on defendant-Respondent No. 2 absolving others of the re- maining liability on the bar of limitation. Such view was taken as the facts established that the liability to dis- charge debts of Vellappa Rawther after his death was indi- vidually on his heirs proportionate to the extent of their share in the estate devolving on them, and since the debt had become time barred, acknowledgment of the same by de- fendant-respondent No. 2 as well as partial payment of the debt by him rendered him alone liable to meet liability to the extent of one fourth related to the share of the estate which as a Muslim heir he received from the deceased. Before this Court, it was claimed on behalf of the appellant that under sections 18 and 19 of the Limitation Act the acknowledgment and partial payment saved limitation against all and thus the entire debt could be recovered from defendant-respondent No. 2, he being in possession of the estate lying joint. Dismissing the appeal, this Court, HELD: (1) The debt of the deceased gets divided in shares by operation of Muslim Personal Law amongst the heirs proportionate to their shares in the estate. The theory of sanctity of the integrity of the 434 debt is apparently foreign in the case of a deceased muslim leaving debt and some estate both being divisible amongst his heirs. [247G] Mohd. Abdul Qadeer v. Azamatullah Khan and 8 Others, [1974] 1 Andhra Weekly Reporter 98; Vasantam Sambasiva Rao v. Sri Krishna Cement and Concrete Works, Tenali 1977 Andhra Law Times Reports at 528; N.K. Mohammad Sulaiman v.N.C. Mohammad Ismail and Others, [1966] 1 SCR 935 at 940, re- ferred to. (2) It would be right to treat it settled that muslim heirs are independent owners of their specific shares simul- taneously in the estate and debts of the deceased, their liability fixed under the personal law proportionate to the extent of their shares. [248H] Jafri Begum v. Amir Muhammad Khan, [1885] Vol. 7 ILR Allahabad series, referred to. (3) The heirs of a muslim are by themselves independent debtors; the debt having been split by operation of law. Inter se, they have no jural relationship as co-debtors or joint debtors so as to fall within the shadow of contrac- tors, partners, executors or mortgagees or in a class akin to them. They succeed to the estate as tenants-in-common in specific shares. [250D] (4) Even a signed written acknowledgment by the princi- pal or through his agent would bind the principal and not anyone else standing in jural relationship with the princi- pal in accordance with section 20(2) of the Limitation Act. The Muslim heirs inter-se have no such relationship. [250E] (5) If the debt is one and indivisible, payment by one will interrupt limitation against all the debtors unless they come within the exception laid down in section 20(2). And if the debt is susceptible of division and though seem- ingly one consists really of several distinct debts each one of which is payable by one of the obligors separately and not by the rest, section 20 keeps alive his part of the debt which has got to be discharged by the person who has made payment of interest. It cannot affect separate shares of the other debtors unless on the principal of agency, express or implied, the payment can be said to be a payment on their behalf also. [250H; 251A] Abheswari Dasya and Another v. Baburali Shaikh and Others, AIR 1937 Cal. 191, referred to. 435 (6) The property of the co-heirs supposedly in posses- sion of defendant-respondent No. 2 cannot be touched direct- ly in his hand unless the co-heirs being parties to the suit are held liable to pay their share of the debt; the debt being recoverable. [251F] =1991 AIR 720, 1990( 1 )Suppl.SCR 433, 1990( 4 )SCC 672, 1990( 2 )SCALE481 , 1991( 5 )JT 420

PETITIONER: P.N. VEETI NARAYANI Vs. RESPONDENT: PATHUMMA BEEVI AND ANOTHER DATE OF JUDGMENT13/09/1990 BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. AHMADI, A.M. (J) CITATION: 1991 AIR 720 1990 SCR Supl. (1) 433 1990 SCC (4) 672 JT 1991 (5) 420 1990 SCALE (2)481 ACT: Limitation Act: Sections 18, 19 and 20–Acknowledgment of debt–When saves limitation. Muslim … Continue reading

It is a case of suicide committed by the deceased by consuming insecticide poison. It is alleged that the accused was harassing the deceased who was working as nurse and was behaving cruelly towards her for the sake of her salary and other financial benefits. This is not a case where the husband harassed a wife (legally married wife) resulting in death of the wife by suicide, in order to attract either Section 498-A or Section 304(B) I.P.C. If the accused asked or demanded or harassed the deceased for her salary and other finances, suicide is not the only solution for such harassment, particularly when there is no legal bondage between them as man and wife. The definition of ‘cruelty’ contained in Section 498-A I.P.C. has no application in this case, because of anomalous relationship between the accused and the deceased. Taking the prosecution allegations on their face value, they do not disclose requirements of Section 107 I.P.C. for abetment either by way of instigation or by way of intentional aiding. In the absence of basic ingredients of abetment in this case, the question of attracting Section 306 I.P.C. does not arise at all in this case.

THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.676 of 2011 BETWEEEN: C.Satish Kumar Goud … Appellant         AND 1. The State of A.P. & another. … Respondents THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU   CRIMINAL APPEAL No.676 of 2011   JUDGMENT: The de facto complainant/PW1 seeks to file this appeal against order of acquittal recorded by the … Continue reading

Hindu Law–Mitakshara School of Hindu Law-Gift by a Coparcener of his undivided coparcenary interest to another coparcener without consent of other coparceners–Whether valid or void–Held-Valid. Hindu Succession Act 1956–Section 30—Interpretation of.

PETITIONER: THAMMA VENKATA SUBBAMMA (DEAD) BY L.R. Vs. RESPONDENT: THAMMA RATTAMMA & ORS. DATE OF JUDGMENT06/05/1987 BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) NATRAJAN, S. (J) CITATION: 1987 AIR 1775 1987 SCR (3) 236 1987 SCC (3) 294 JT 1987 (2) 440 1987 SCALE (1)1000 ACT: Hindu Law–Mitakshara School of Hindu Law-Gift by a … Continue reading

whether re-marriage of a widow prior to Hindu Succession Act, 1956 would divest her of even the limited ownership of her deceased husband’s property, having due regard to the provisions of Section 2 of Hindu Widow’s Re-marriage Act, 1856 (hereinafter referred to as `the Act of 1856′); and secondly, whether disqualification of inheritance, if any, by reason of re-marriage would stand obliterated by reason of the provisions of the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949. Incidentally, Section 24 of the Succession Act of 1956 placed certain restrictions on certain specified widows in the event of there being a remarriage: while it is true that Section speaks of a pre-deceased son or son of a pre-deceased son but this in our view is a reflection of the Shastric law on to the statute. The Act of 1956 in terms of Section 8 permits the widow of a male Hindu to inherit simultaneously with the son, daughter and other heirs specified in class I of the Schedule. As a matter of fact she takes her share absolutely and not the widow’s estate only in terms of Section 14. Re-marriage of a widow stands legalised by reason of the incorporation of Act of 1956 but on her re-marriage she forfeits the right to obtain any benefit from out of her deceased husband’s estate and Section 2 of the Act of 1856 as noticed above is very specific that the estate in that event would pass on the next heir of her deceased husband as if she were dead. Incidentally, the act of 1856 does not stand abrogated or repealed by the Succession Act of 1956 and it is only by Act 24 of 1983 that the Act stands repealed. As such the Act of 1856 had its fullest application in the contextual facts in 1956 when Section 14 (1) of the Hindu Succession Act was relied upon by Defendant No. 1.

CASE NO.: Appeal (civil) 425 of 1982 PETITIONER: VELAMURI VENKATA SIVAPRASAD (DEAD) BY L.RS. RESPONDENT: KOTHURI VENKATESWARLU (DEAD) BY L.RS. AND ORS. DATE OF JUDGMENT: 24/11/1999 BENCH: S.B. MAJMUDAR & M. SRINIVASAN & UMESH C. BANERJEE JUDGMENT: JUDGMENT 1999 Supp(4) SCR 522 The Judgment of the Court was delivered by BANERJEE, J. Two specific questions … Continue reading

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