Jogendranath Banerjee v. Makhan Lal Banerjee

The Judgment of the Court was as follows:

Akram, J.:— This appeal by the Plaintiff arises out of a suit for partition and separate allotment of his 8 annas share in the suit lands.

2. The Plaintiff's case was that the lands belonged to his great-grandfather Nemai Charan Banerjee; that on his death it was inherited by his two sons, Pitambar and Kalikumar, in equal shares: that Kalikumar's interest devolved upon his son Becharam and on Becharam's death his two sons, the Plaintiff and Tarak came to be the owners: that by amicable partition with the son of Tarak the Plaintiff became entitled to the entire 8 annas share of the suit lands; that the remaining 8 annas share of Pitambar ultimately came to the Defendants Nos. 1 to 11 in the course of succession and by transfers: that inspite of repeated demands the Defendants had failed to partition the property amicably.

3. The Defendants Nos. 1, 2 and 9 to 11 appeared, and various objections relating to extent of share, misdescription of the property, want of title, limitation, etc., were taken, but their main defence which is material for the purpose of the present appeal was that Becharam by a registered Will (Ext. F, certified copy) had dedicated all his immovable properties to the family idol and had thus deprived the Plaintiff from obtaining any interest in the suit lands by inheritance: that in the absence of the shebaits of the idol the suit was not maintainable on account of the defect of parties. Regarding this main defence the issues framed in the trial Court were:—

Issue No. 4:—Is the suit bad for non-joinder and mis joinder of parties?

Issue No. 6:—Has the Plaintiff inherited any share in the disputed property and has he got any locus standi to maintain the suit?

4. Upon the issues aforesaid, the trial Court expressed its views in the following terms:—

“There cannot be any doubt about the genuineness of the Will of which Ext. F is a certified copy. The shebaits of the deities apparently took possession of the properties dedicated to the deities by virtue of the Will after Becharam's death, although no probate of the Will was obtained. It is urged by Plaintiff's pleader that as probate of the Will is not taken out, the Will is inadmissible in evidence. Notwithstanding sec. 187 of the Indian Succession Act which is incorporated in the Hindu Wills Act, a Will not proved in the Probate Court may be used in evidence for a purpose other than the establishment of a right as executor or legatee. sec. 187 of the Indian Succession Act does not stand in the way of Defendants Nos. 9 to 11 putting forward the existence of the Will of Becharam Banerjee (though unprobated) in answer to the Plaintiff's claim to a share in his property”……

“The above deities represented by their Shebaits…. are necessary parties in this suit although no probate of the Will has been taken. Their non-joinder seems to be fatal to the suit..”

5. Taking the above view, the trial Court was of opinion that the Plaintiff could not claim any share in the immovable properties left by Becharam on the basis of inheritance and could succeed only by proving adverse possession against the deities and the Defendants. On the merits, it recorded the findings that the Plaintiff had proved his 8 annas share: that adverse possession was established only in respect of C.S Plots Nos. 1508 and 1509; that title was barred by limitation in respect of C.S Plots Nos. 1510 and 1511; that Plot No. 2 of the plaint was not shown to be included in C.S Plots Nos. 868 and 870 as alleged, nor was it shown that it was in the possession of the Plaintiff.

6. It however dismissed the whole suit on a consideration of the Issue No. 4 as it held that there was defect of party which was fatal to the maintainability of the suit.

7. Against this decision the Plaintiff appealed and the learned Additional District Judge who heard the appeal took the view that having regard to sec. 213 of the Indian Succession Act, the unprobated Will could not be made the basis for establishing title under it only by the executor or the legatee and as such the suit could not be dismissed for not making the shebaits party to the suit; he accordingly decreed the suit in respect of C.S Plots Nos. 1508 and 1509 but he upheld the decision of the trial Court in respect of C.S Plots Nos. 1510 and 1511, observing in the course of his judgment as follows:—

“The position is, however, different when we come to consider the title of the Plaintiff. The Plaintiff must of course prove his title before he can get any relief in this suit. But when he seeks to prove his title on the basis of his and his brother's heirship of their father, the Will stands in the way. While no one can be allowed to establish a title on the strength of this unprobated Will, sec. 213 of the Indian Succession Act does not bar its use as evidence that Becharam disinherited his sons. The unprobated Will proved by D.W No. 3 Hari Lal (Vide Ex. F certified copy of the Will) does, in any view, prove the disinheritance of the Plaintiff and his brother by their father. In the circumstances the Plaintiff can not claim any title to the land in suit, either as an heir of his father or through his brother.”

8. He accordingly passed a decree modifying the decree of the trial Court.

9. From this decision the Plaintiff preferred the present appeal.

10. It was contended by the learned Advocate appearing on behalf of the Appellant:—

(i) that the Court of Appeal below was in error in its view that sec. 213 of the Indian Succession Act did not bar the use of the unprobated Will (Ext. F) as evidence for the purpose of proving that Becharam by a testamentary disposition of all his immovable properties had precluded the Plaintiff from claiming any share therein by inheritance and the decisions in the cases of Ganshamdas Narayandas v. Gulab Bi Bai(1), Shiba Prosad Singh v. Prayag Kumari(2), Ranjit Kumar v. Subodh Chandra(3) and Rup Chandra Sarma Deshmukhya v. Ram Chandra Deb(4) were relied upon in support;

(ii) that as regards C.S Plots Nos. 1510 and 1511 of the Plot No. 1 of the plaint, the Court of Appeal was in error in holding that the Plaintiff could not be allowed to claim title on the basis of inheritance and could succeed only by proving title acquired by adverse possession;

(iii) that as regards the entire Plot No. II of the plaint, the Court of Appeal below had erroneously omitted altogether to consider the case of the Plaintiff.

11. In answer to the above arguments it was urged by the learned Advocate appearing for the Respondents (1) that sec. 213 of the Indian Succession Act prevented the use of unprobated Will only by the executor and the legatee for the purpose of establishing title under it and not by third parties for the limited purpose of merely showing that there was no intestacy as there was a Will in existence. The decision in the case of Ganashamdoss v. Saraswati Bai(5) was cited as an authority in support and it was suggested that the observation in the case of Ranjit Kumar v. Subodh Chandra to the effect that the case of Ganshamdoss v. Saraswati Bai had been overruled by the Full Bench in the case of Ganshamdas Narayandas v. Gulab Bi Bai was misconceived and incorrect. Reference was made to the cases of Sarala Sundari Debi v. Hazari Dasi Debi(6), Basanta Kumar Chakerbutty v. Gopal Chandra Das(7) and Rani Prayag Kumari Debi v. Siva Prosad Singh(8) for the proposition that an unprobated Will was not inadmissible in evidence for any purpose other than the purpose of establishment of title as executor or legatee.

12. As regards (ii), it was urged that as the existence of the Will was proved, the claim for inheritance based upon intestacy failed and the Court of Appeal below was right in holding that the Plaintiff could succeed only by proving adverse possession against the Defendants.

13. As regards (iii) however, it was conceded that there was an omission to consider the case of the Plaintiff in respect of Plot No. II of the plaint.

14. In our opinion the contentions put forward by the learned Advocate on behalf of the Appellant are well-founded and should be given effect to. The decision in Ganshamdoss v. Saraswati seems to us to have been substantially overruled by the decision in Ganshamdas v. Gulab Bi Bai at least by implication if not by express terms. In this country intestacy is the general rule and unless a valid disposition of the property in suit is proved, the Plaintiff is entitled to succeed by inheritance; the Defendant therefore should prove the Will in order to defeat the Plaintiff's claim, this he cannot do under the terms of sec. 213 of the Indian Succession Act without taking probate; it is true that an unprobated Will may be looked into for a collateral purpose or for the construction of it as was done in the cases of Sarala Sundari Debi v. Hazari Dasi Debi, Basanta Kumar Chakrabuity v. Gopal Chandra Das, Rani Prayag Kumari Devi v. Siva Prosad Singh and Achyuttananda v. Jagomnath(9), but that is a different matter. In the above-mentioned cases the unprobated Will was not admitted for defeating the Plaintiff's claim or title to any property by inheritance.

15. The Court below therefore seems to us to have approached the case from an erroneous point of view. We accordingly send it back to the lower Appellate Court for a re-hearing in respect of C.S Plots Nos. 1510 and 1511 and the Plot No. II of the plaint and for disposing of the appeal in accordance with law, in the light of the observations made herein. The findings in respect of C.S Plots Nos. 1508 and 1509 will stand.

16. The appeal is allowed as stated above.

17. Costs will abide the result.

Pal, J.:— I agree that this appeal should be allowed.

19. The appeal is by the Plaintiff and it arises out of a suit for partition. The following genealogy will be helpful to understand the relationship between the parties.

20. The property originally belonged admittedly to Nemai. He left four sons and of these Ram Narain and Ram Gopal died childless. It is not disputed that thus Pitambar got 8 annas share and the other 8 annas came to Kali Kumar. The Defendants are the successors-in-interest of Pitambar and the Plaintiff is claiming through Kali Kumar. Kali Kumar's 8 annas interest descended to his son Becha-ram and the Plaintiff's case is that Becharam's interest descended to the Plaintiff himself and his brother Tarak in equal shares. Subsequently, by a private partition between the Plaintiff and Tarak's sons, the lands of the present suit fell to the share of the Plaintiff. He thus alone became entitled to 8 annas share in these lands and his present suit is for a partition in respect of this 8 annas share.

21. The defence of the Defendants is that Becharam died in 1906 leaving a registered Will, whereby he dedicated this property to certain family deities. Under the provisions of that Will nothing devolved upon the Plaintiff and his brother Tarak and consequently, the Plaintiff has got no title to this property. They further pleaded that in the absence of the deities, who thus became the real owners of the 8 annas share of Becharam, the present suit was not maintainable for defect of parties. The properties are given in two schedules in the plaint. Schedule Ka contains C.S Dags Nos. 1508, 1509, 1510 and 1511 and Schedule Kha gives the property partly covered by C.S Dag No. 870 and partly by C.S Dag No. 868. Admittedly, the alleged Will of Becharam has not been probated. The Plaintiff impeached this Will on various grounds and asserted that as no probate has been granted of the Will, it cannot be given in evidence to establish the right of the deities.

22. The Court of first instance held: (1) that notwithstanding sec. 187 of the Indian Succession Act the Will, though not proved in the Probate Court, might be used in evidence for the purpose of establishing that Becharam Banerjee had left a Will and that consequently Plaintiff had not the claimed interest in the property; (2) that the Plaintiff acquired title by adverse possession to Plots Nos. 1508 and 1509 of Schedule Ka but that as the deities were not made parties to the suit, the suit was bad for defect of parties; (3) that as regards the land in Schedule “Kha” there was no reliable evidence on the record in support of the Plaintiff's case that it was partly included in C.S Plot No. 870 and partly in C.S Plot No. 868; that the Defendants Nos. 9 to 11 had satisfactorily proved their uninterrupted and peaceful possession of a portion of the plot as a road for over 20 years as of right, and that the Plaintiff's claim for partition of this plot is obviously barred by limitation, waiver, estoppel and acquiescence. He, therefore, dismissed the suit.

23. On appeal by the Plaintiff, the learned Additional District Judge held that as probate has not been taken of the Will, it could not be used to establish the title of the deities. That being so, there was no defect of parties; but that though the Will could not be used for establishing the title of the deities, it could be looked into to demolish the title claimed by the Plaintiff. He further found that by reason of this Will, the Plaintiff and his brother did not inherit anything from their father Becharam. He however maintained the finding arrived at by the Court of first instance that the Plaintiff succeeded in establishing his title by adverse possession to Plots Nos. 1508 and 1509. As regards the other two plots of Schedule Ka, namely, Plots Nos. 1510 and 1511, the learned lower Appellate Court came to the conclusion that the Plaintiff failed to establish his title by adverse possession. On these findings and without saying a word about the properties given in Schedule Kha, the learned Additional District Judge allowed the appeal in part, decreeing the Plaintiff's suit in respect of C.S Plots Nos. 1508 and 1509 only and dismissing the rest of his claim.

24. Mr. Chakrabarty, appearing in support of this appeal, contends that the Will was not admissible in evidence even for the purpose of demolishing the Plaintiff's title by inheritance, and that, at any rate, the Court of Appeal below was wrong in dismissing the Plaintiff's claim to the property in Schedule Kha without at all adverting to the evidence regarding that property.

25. As regards the first point, Mr. Chakrabarty contends that in order to defeat the Plaintiff's title by inheritance, it would not suffice to prove that there was a Will left by his father. Unless and until it is established that under that Will the property was successfully disposed of, Plaintiff's title by inheritance will not be defeated. In order, therefore, to exclude the Plaintiff's title, it becomes necessary to establish the right of the deities under the Will and this is exactly what is prohibited by sec. 187 of the Indian Succession Act, 1865 (present sec. 213) in the absence of a grant of probate of that Will.

26. Mr. Chatterjee appearing for the Respondent contends:—(1) that the Plaintiff having based his claim on intestacy of his father Becharam Banerjee, his claim will fail as soon as it is established that Becharam Banerjee did not die intestate in respect of the property in question and this will be established as soon as it is shown that he left a valid Will in respect of the property; (2) that the Will, though not clothed with the grant of probate, can be looked into for this purpose and sec. 213 of the Succession Act does not contain any prohibition in this respect.

27. sec. 187 of the Indian Succession Act, 1865 (Act X of 1865) ran as follows:—

“No right as executor or legatee can be established in any Court of justice, unless a Court of competent jurisdiction within the Province shall have granted probate of the Will under which the right is claimed, or shall have granted letters of administration under the 180th section.”

28. The provisions of this Act were not originally applicable to intestate or testamentary succession to the property of any Hindu, Muhammadan or Buddhist: (Vide sec. 331 of that Act).

29. Some of the sections of this Act, including sec. 187 were made applicable to the Hindus to a limited extent by the Hindu Wills Act 1870 (Act XXI of 1870).

30. Sec. 213 (1) of the Indian Succession Act 1925 is only a reproduction of the old sec. 187 of the Act of 1865.

31. It may be noticed here that sec. 187 of the Succession Act of 1865 was not incorporated in the Probate Act of 1881 (Act V of 1881), though it continued embodied in the Hindu Wills Act. Consequently the rule of prohibition in the section affected only those Wills to which the Succession Act or the Hindu Wills Act applied.

32. Sec. 213 of the present Succession Act (Act XXXIX of 1925), like sec. 187 of the Succession Act of 1865, lays down that

“no right as executor or legatee can be established ….. unless a Court ….. has granted probate of the Will under which the right is claimed ….

33. The section does not say that “no claim as executor or legatee can be established,” and consequently the prohibition contained in it is not limited only to case where the claimant is him self an executor or a legatee under the Will. If in a case it be necessary to establish the right as executor or legatee under a Will, no matter whether or not the person setting up the right claims under that right, the prohibition shall apply.

34. The section is not limited in its operation only to cases where the Plaintiff brings a suit as executor or legatee or even to cases where the Defendant claims as executor or legatee. It extends to all cases where it becomes necessary in the suit to decide that under the Will the right as an executor or legatee accrued. It equally debars a person who is required to establish the legatee's right merely as a jus tertii for the purpose of his defence.

35. The prohibition, however, does not extend beyond the question of establishment of the right as executor or legatee. The Will can be looked into for all other purposes. Thus, if, in the present case, it becomes necessary to come to a decision whether the deity look the property under the Will, the Will must be excluded from consideration and the right set up in the deity cannot be established unless and until the Will is clothed with the grant of a probate. If, on the other hand, it be sufficient to show only that there was a Will left by Becharam and that the Will purported to dispose of this property, then the prohibition contained in sec. 213 shall not exclude the Will from consideration. The question involved in the present appeal, therefore, boils down to this: whether the title claimed by the Plaintiff will be excluded simply by showing that his father left a Will and that by that Will he purported to dispose of the disputed property in favour of the deity. If this be the position, the Will shall not come within the prohibition of sec. 213, Indian Succession Act. If, however, it be necessary to establish not only that the Will purported to dispose of this property in favour of the deity but that it succeeded in disposing it of in its favour, before Plaintiff's claim on intestacy can be defeated, then the prohibition of the section shall apply.

36. As was pointed out by the Judicial Committee in the case of Tagore v. Tagore(10),

“whilst rules of detail prevailing in England are to be laid aside, there are general principles affecting the transfer of property which must prevail wherever law exists, and to which resort must be had in deciding several questions of an elementary character …. The power of parting with property, once acquired, so as to confer the same property upon another, must take effect either by inheritance or transfer, each according to law. Inheritance does not depend upon the Will of the individual owner: transfer does. Inheritance is a rule laid down (or in the case of custom, recognised) by the State, not merely for the benefit of individuals but for reasons of public policy ….”

37. The right of a Hindu heir to take by inheritance will not be defeated simply by a provision in the Will prohibiting that heir from taking. Unless and until the property is effectively disposed of by the Will to others, the heir will take by inheritance. This being the law, in order to defeat the title of the Plaintiff in the present case, it would not suffice for the Defendants simply to say that by the Will the Plaintiff was disinherited and the property was sought to be given to the deities. The Defendants shall have to establish that the disposal in favour of the deities by the Will was successful.

38. This will be seeking to establish the right of the deity as a legatee under the Will and as the claim of the Plaintiff will not be defeated till this is established, the prohibitory rule contained in sec. 213 of Indian Succession Act shall stand in the way of the Defendant. The legal heir of a Hindu cannot be disinherited even by an express declaration of the testator's intention to disinherit him. Unless and until the property itself is taken away from him and successfully given over to another, he will take the property by inheritance. Whatever be the reason why an attempted disposition fails, if it fails and the property remains otherwise undisposed of, it comes to the heir. In cur opinion, therefore, in order to defeat the claim of the present Plaintiff it would not suffice in the present case simply to establish that his father left a valid Will and that the intended dispositions of that Will covered this property. The Defendant must proceed further and must establish that the disposition in favour of the deity was a successful one. This would really be establishing the right of the deity as a legatee under the Will. And this is exactly what is prohibited by sec. 218, Indian Succession Act, so long as the Will remains unclothed with a probate.

39. Mr. Chakrabarty in support of his contention relied on the Full Bench decision of the Madras High Court in the case of Ganshamdas Narayandas v. Gulab Bi Bai and on the decision of this Court in Ranjit Bose v. Subodh Chandra Bose Mullick. He also relied on the decisions in the case of Basanta Kumar Chackerbutty v. Gopal Chandra Das, Gopal Lal Chandra v. Amulya Kumar Sur(11) and Rani Prayag Kumari Devi v. Siva Prosad Singh. The cases which say that sec. 213 of the Indian Succession Act does not debar an unprobated Will from being given in evidence for a purpose other than the establishment of a right as executor or legatee will not be of any avail to the Defendants in this case, because as has been pointed out above, in the present case nothing short of establishing the right of the deities under the Will as legatee will defeat the title of the Plaintiff.

40. In Ganshayndas Narayandas v. Gulab Bi Bai the question that was referred to the Full Bench in this case was,

“can a Defendant resisting a claim made by the Plaintiff as heir-at law rely in defence on a Will executed in his favour at Madras in respect of property situate in Madras when the Will is not probated and no letters of administration with the Will annexed have been granted?”

41. The question arose when the Indian Succession Act (X of 1865) was in force. Sec. 187 of the Act was the relevant provision. Phillips, Officiating C.J, observed: “There is nothing in sec. 187 which would in terms make it applicable only to the case of Plaintiffs and not to the case of Defendants and this view has been taken in several cases.”

Anantakrishna Ayyar, J., observed:

“Where the Plaintiff's prima facie title to the property is established, the Defendant in order to non-suit the Plaintiff should establish the title of the legatee. The general law would be seen to be that the Defendant's plea of jus tertii cannot be entertained when he does not state in whom the right resides. The Defendant must trace title to a third party other than the Plaintiff …. A prima facie title made out by the Plaintiff to the property in suit is, I think, a good title against all the world except against the person who can show a better title … He must succeed unless the Defendant is able to displace the Plaintiff's prima facie title and prove a better title in some person other than the Plaintiff: If such person's rights should happen to be as legatee under a Will, since the Defendant has to prove such person's right as legatee, he comes within the scope of sec. 213, Succession Act, 1925 (sec. 187 of the old Act, X of 1865).”

43. In Ranjit Kumar Bose v. Subodh Ch. Basu Mullick, (D.N Mitter and S.K Ghose, JJ.), the Plaintiff claimed an one-fourth share in a certain property as heir of one Krishnadas Basu Mullick and his suit was for partition of the same by distinct demarcation. The relevant defence was that Krishnadas left a Will whereby some of the disputed properties were made debutter. The Will was at first probated but subsequently the probate was revoked. The contention of the Plaintiff was that as after revocation of the original grant of probate, the Will was left unprobated. The debutter character of the property could not be established under sec. 213 of the Indian Succession Act This contention was upheld by this Court and for this purpose the reliance was placed on the Pull Bench decision of the Madras High Court referred to above.

44. Mr. Chatterjee appearing for the Respondents contended that both in the Calcutta cases and in the Madras Full Bench case, the decision proceeded on the footing as if it were necessary to establish the right as legatee under the Will. He contends that in those cases the question was not at all agitated as to whether such right need be established to defeat the Plaintiff's claim. According to him, therefore, these are no authorities against the proposition of law contended for by him, and that the direct authority in support of his contention is to be found in the case of Nawab Shuja-Ul-Mulk Bahadur v. Umir-Ul-Umra Bahadur(12).

45. In the case relied on by Mr. Chatterjee, the Plaintiff claimed as heir of one Kaberi Bai. The defence was that Kaberi Bai left a Will under which the Defendant took the property as legatee. Kumaraswami Sastri, J., observed as follows:—

“In the present case the Plaintiff comes to Court saying that Kaberi Bai died intestate, and that he is the heir under the Hindu Law claiming by intestate succession. There is no authority which says that where a Plaintiff comes to Court claiming as on intestate succession, his claim can only be disputed by one who has obtained probate of the Will. Where it is shown that the person did not die intestate but left a Will, the Plaintiff who claims adversely to the Will is out of Court irrespective of any proof of claim or title by the Defendant. In cases where the Plaintiff necessarily fails, merely on the ground that there is a Will left by a person and that, by reason of the Will, his claim to succeed to the estate of the deceased on the ground of intestacy under the ordinary law is not sustainable, there is nothing to prevent the Defendant from pleading and proving the existence of the Will. It is unnecessary in such cases for the Defendant to prove any Independent title of his own. Just as he could plead jus tertii, he could also plead facts that would bar the Plaintiff's title.”

46. It seems that Kumaraswami Sastri, J., took the view that when the Plaintiff came to Court pleading that there was no Will left by his predecessor and based his claim on this alleged fact of non-existence of any Will, his claim will be liable to be defeated by the mere proof that as a matter of fact the predecessor left a Will. The learned Judge does not seem to decide further than this, and we are not inclined to take such strict view of pleadings. If the learned Judge really meant to say that in Hindu law as soon as testacy is established in the sense that the predecessor left a Will, there can be no claim on intestacy, we respectfully differ from this view, and we have already given our reason for holding otherwise. It should also be remembered that mere existence of a Will does not necessarily mean testacy in respect of certain property. Under the Indian Succession Act a man can die partly testate and partly intestate. And in our opinion a Hindu will die intestate even in respect of properties which he might have made an unsuccessful attempt to dispose of by Will.

47. The second contention of Mr. Chakrabarty must also prevail. Nowhere in his judgment the learned Additional District Judge adverted to the property in Schedule Kha. Therefore his decree dismissing the Plaintiff's claim to that property cannot be maintained.

48. It appears that the Defendants pleaded bar of limitation to the Plaintiff's claim. So far as C.S Plots Nos. 1510 and 1511 of Schedule Ka and the property of Schedule Kha are concerned, as the claim of the Plaintiff was dismissed on other grounds, it was not necessary for the Court below to enter into this question of limitation.

49. But on the view that we are taking of the Plaintiff's title, it will be necessary now to consider this defence. So far as Plots Nos. 1508 and 1509 are concerned, the Plaintiff succeeded in getting a decree in respect thereof and there has been no cross-objection filed by the Defendants on any ground. The decree in respect of these properties therefore must be left undisturbed.

P.C