Ram Gopal V/S Nand Lal And Others [1950 SCR 766: AIR 1951 SC 139]

Procedural History:

This appeal was directed against an appellate judgement of a Division Bench of the Allahabad High Court dated 6^th September 1943, by which the Judges reversed the decision of the Civil Judge, Etawah, made in Original Suit No.28 of 1936.

Facts of the Case

The suit was commenced by the plaintiff, who is respondent No.1 in this appeal, for recovery of possession of two items of immovable property one a residential house and other a shop both situated in Etawah. The properties admittedly formed the estate of one Mangal Sen who died leaving behind him two widows, as his heirs, Musammat Rani and Musammat Mithani (The word ‘Musammat’is used before the name of a woman). Mangal Sen had a son named Chhedi Lal and daughter named Janki Kuar born of his wife Musammat Rani, but both died during his lifetime.Chhedi Lal was survived by his widow Mosammat Meria, while Janki left a son named Thakur Prasad. Janki’s husband married another and by her got a son named Babu Ram. On Mangal Sen’s death, his properties devolved upon his two widows and subsequently Musammat Rani died and Musammat Mithani came to hold the entire estate of her husband in the restricted rights of a Hindu widow. Musammat Rani surrendered her whole estate of her husband by a deed of gift on 27^th November 1919 in favour of Thakur Prasad (Janki’s son) who was the nearest reversioner at that time. Thakur Prasad died in 1921, leaving a minor son named Nand Lal who succeeded to his properties and this Nand Lal is the plaintiff in the suit out of which this appeal arises. On 27^th October 1921, there was a transaction entered into between Babu Ram on his behalf as well as the guardian of infant Nand Lal on the one hand and Musammat Meria the widow of Chhedi Lal, on the other, by which two items of property which are the subject-matter of the present litigation were conveyed to Meria by a deed of transfer which has been described as a Tamilknama; and she on her part executed a deed of relinquishment renouncing her claims to every portion of the estate left by Mangal Sen. It is not disputed that Meria took possession of the properties on the basis of the Tamilknama and on 10^th April 1923 she executed a will by which these properties were bequeathed to her three nephews, who are the sons of her brother Sunder Lal. Meria died on 19^th June 1924.

One Ram Dayal had obtained a money decree against Sunder Lal and his three sons, and in the execution of that decree the properties in the suit were attached and put up to sale and they were purchased by Ram Dayal himself on 30^th January 1934. On 1^st June 1936, the present suit was instituted by Nand Lal and he prayed the Recovery of Possession of these two items of property on the allegation that as they were given to Musammat Meria for her maintenance and residence, she could enjoy the same only so long as she lived and after her death, they reverted to the plaintiff.

Sunder Lal, the brother of Meria was made the first defendant in the suit, and his three sons figured as defendants No.2 to 4. Defendant No.5 is a lady named Chimman Kunwar in whose favour Sunder Lal was alleged to have executed a deed of transfer in respect of a disputed property. Ram Dayal, the decree-holder auction purchaser, died in May 1935 and vested his properties vested in his daughter’s son Ram Gopal under a deed of gift executed by him in favour of the latter. On 1^st September 1938, Ram Gopal was added as a party defendant to the suit on the plaintiff’s application and he is defendant No.6. The two other defendant’s, namely defendant’s 7 and 8 who were also made parties at the same time are respectively the widow and an alleged adopted son of Ram Dayal.

The suit was contested primarily by defendant 6 and the substantial contentions raised by him in his written statement were of a twofold character. The first and the main contention was that Musammat Meria got an absolute title to the disputed properties on the strength of the “Tamilknama” executed in her favour by the guardian of the plaintiff and after her death, the properties passed on to the three sons of Sunder Lal who were the legatees under her will. Ram Dayal, it was said, having purchased these properties in the execution of a money decree against Sunder Lal and his three sons acquired a valid title to them. The other contention raised was that the suit was barred by limitation. Under the “Law of Limitation”, it indicates a time period within which a right can be enforced in a Court of law. The trial Judge decided both these points in favour of the contesting defendant and dismissed the plaintiff’s suit. On appeal to the High Court, the judgement of the Civil Judge was set aside and the plaintiff’s suit was decreed.

Issues

Gift to a female owner is subject to special rules of construction under Hindu law. Gift for maintenance of a Hindu woman acquires an absolute estate. Whether such gift passes an absolute estate or limited estate. Use of the word ‘Malik’ effect of.

Holding

In the present case, the instrument of the grant has been described as ‘Tamliknama’ which means a document by which ‘Maliki’ or ownership rights are transferred and the document expressly says that the grantee has been made a ‘Malik’ or owner. There are no express words making the gift heritable and transferable; on the other hand, is there any statement that the transferee would enjoy the properties only during her lifetime and that they would revert to the grantor after her death.

It may be taken to be quite settled that there is no warrant for the proposition of law that when a grant of immovable property is made to a Hindu female, she does not get an absolute or alienable interest in such property unless such power is expressly conferred upon her. The reasoning adopted by Mr. Justice Mitter of the Calcutta High Court in Kollani Koer v. Luchmee Prasad (94 W.R. 395) was approved of and accepted by the Judicial Committee in a number of decisions, seems to be unassailable. It was held by the Privy Council as early as in the case of Tagore v. Tagore, that if an estate were given to a man without express words of inheritance, it would, in the absence of a conflicting context, carry, by Hindu Law, an estate of inheritance. This is the general principle of law which is recognised and embodied in Section 8 of the Transfer of Property Act and unless it is shown that under Hindu Law a gift to a female means a limited gift or carries with it the restrictions or disabilities similar to those that exist in a ‘widow’s estate’, there is no justification for departing from this principle. There is certainly no such provision in Hindu Law and no text could be supplied in support of the same.

The document ‘tamliknama’ and the use of the word ‘Malik’ or owner in reference to the interest which it purports to convey to the transferee. The word ‘Malik’ is of very common use in many parts of India and it cannot certainly be regarded as a technical term of conveyancing. The High Court in reaching its decision adverse to the appellant laid great stress on the fact that the grant was expressed to be for maintenance and residence of Mosammat Meria. This, it is said, would prima facie indicate that the grant was to ensure for the lifetime of the grantee. It is pointed out by the learned Judges in Vide Sasiman Chowdhurain v. Shib Narayan, (1922)24 BOMLR 576, 25 that the language of the document does not show that anybody else besides the lady herself was to be benefited by the grant and the indemnity given by Babu Ram was also given to the lady personally. It is further said that if Meria was given an absolute estate in the properties comprised in the ‘Tamliknama’, there was no necessity for including these two properties again in the deed of relinquishment which she executed at the same time. The result is that the appeal is allowed, the judgment and decree of the High Court are set aside and those of the trial Judge restored. Defendant No. 6 will have his costs from the plaintiff in all the courts. There will be no order for costs as regards the other parties.

Rationale

Under the ‘ Tamliknama ‘, Meria got two properties in absolute right out of the estate of Mangal Sen. By the deed of relinquishment, she renounced her claim for maintenance in respect of all the properties left by Mangal Sen including the two items which she got under the ‘Tamliknama’. After the ‘ Tamliknama’ was executed in her favour, there Was no further question of her claiming any right of maintenance in respect of these two items of property. She became the absolute owner thereof in exchange for her rights of maintenance over the entire estate and this right of maintenance she gave up by the deed of relinquishment. On a construction of the entire document, my conclusion is that there is nothing in the context of the document, or in the surrounding circumstances which would displace the presumption of full proprietary rights which the use of the word “Malik” is apt ordinarily to convey.

Dicta

Not at all impressed by the other fact referred to in the judgment of the High Court that if the properties were given to Meria in the absolute right, there was no necessity for including them again in the schedule to the deed of relinquishment which Meria executed.  We fail to see how the inclusion of the properties in the deed of relinquishment would go to indicate that Meria’s rights to these properties were of a restricted and not an absolute character. It is after all a pure matter of conveyancing and the two documents have to be read together as parts of one and the same transaction. Under the ‘ Tamliknama ‘, Meria got two properties in absolute right out of the estate of Mangal Sen. By the deed of relinquishment, she renounced her claim for maintenance in respect of all the properties left by Mangal Sen including the two items which she got under the ‘Tamliknama’. After the ‘ Tamliknama’ was executed in her favour, there Was no further question of her claiming any right of maintenance in respect of these two items of property. She became the absolute owner thereof in exchange of her rights of maintenance over the entire estate and this right of maintenance she gave up by the deed of relinquishment. On a construction of the entire document, my conclusion is that there is nothing in the context of the document, or in the surrounding circumstances which would dis- place the presumption of full proprietary rights which the use of the word “Malik” is apt ordinarily to convey. The first contention of the appellant, therefore, succeeds and in view of my decision on this point, the second question does not arise for determination at all. The result is that the appeal was allowed.

Rule of Law

The general principle of law which is recognised and embodied in Section 8 of the Transfer of Property Act and unless it is shown that under Hindu law a gift to a female means a limited gift or carries with it the restrictions or disabilities similar to those that exist in a widow’s estate, there is no justification for departing from this principle.

Party’s Arguments

That the object of creating these two documents, as the surrounding circumstances show, was not merely to make provision for the maintenance of Musammat Meria; the other and the more important objective was to perfect the title of Nand Lal to the estate left by Mangal Sen and to quiet all disputes that freight arise in respect of the same. It may be that Musammat Meria could not, in law, claim any. thing more than a right to be maintained out of the estate of her deceased father-in-law. But it is clear that whatever her legal rights might have been, Nand Lal’s own position as the sole owner of the properties left by Mangal Sen was not altogether undisputed or free from any hostile attack. As has been said already, Sunder Lal, the brother of Meria, was in occupation of the double-storied shop from long before the Tamliknama was executed and Meria got any legal title to it. It appears from the record that in 1920 a suit was instituted on behalf of the infant Nand Lal for evicting Sunder Lal from the shop and the allegation in the plaint was that Sunder Lal was occupying the property as a tenant since the time of Musammat Mithani by taking a settlement from her. Sunder Lal in his written statement filed in that suit expressly repudiated the allegation of tenancy and also the title of Nand Lal and openly asserted that it was Mst. Meria who was the actual owner of Mangal Sen’s estate.

The suit ended in a compromise arrived at through the medium of arbitrators and the result was that although Sunder Lal admitted the title of the plaintiff, the latter had to abandon the claims which were made in the plaint for rents, costs and damages. Sunder Lal continued to be in occupation of the shop and executed a rent agreement in respect of the same in favour of Nand Lal promising to pay a rent of Rs. 12 per month. A few months later, the Tamliknama was executed and this shop along with the residential house was given to Meria in Maliki right. The recitals in both the Tamliknama and the deed of relinquishment clearly indicate that the supreme anxiety on the part of Babu Ram, who was trying his best to safeguard the interests of the minor, was to put an end to all further disputes that might be raised by or on behalf of Musammat Meria with regard to the rights of Nand Lal to the properties of Mangal Sen and to make his title to the same absolutely impeccable. That seems to be the reason why Meria was given a comparatively large portion of the properties left by Mangal Sen which would enable her to live in comfort and her interest was not limited to a bare right of maintenance. It is significant to note that the shop room, which was all along in possession of Sunder Lal, was included in this Tamliknama and soon after the grant was made, Sunder Lal executed a rent agreement in respect of the shop in favour of Musammat Meria acknowledging her to be the owner of the property.

Comment

According to Chandrasekhara Aiyar J. it cannot be maintained, having regard to the terms of the ‘ Tamliknama’ (deed of transfer) in favour of Musammat Meria and the context in which it came into existence. The name of the document or deed does not very much matter. Though the word ‘ malik ‘ is not a term of art, it has been held in quite a large number of cases, decided mostly by the Judicial Committee of the Privy Council, that the word, as employed in Indian documents, means the absolute owner and that unless the context indicated a different meaning, its use would be sufficient to convey a full title even without the addition of the words, ‘ heirs ‘, or ‘ son ‘, ‘ grandson ‘ and ‘ great grandson’. Of course, if there are other clauses in the document which control the import of the word and restrict the estate to a limited one, we must give the narrower meaning; the word must receive its full significance. The language employed in the ‘ Tamliknama’ (Ex. II) is almost similar to the language of the deeds construed in Bhaidas Shivdas v. Bai Gulab & Another (1922) 24 BOMLR 551 and Bishunath Prasad Singh v. Chandika Prasad Kumari and Others(1933) 35 BOMLR 341 where it was held that an absolute estate was conveyed.