1980 SCC ONLINE BOM 152 . 1983 MAH LJ 221 .

Kamlabai v. Shantirai
Bombay High Court (Aug 4, 1980)

CASE NO.

First Appeal No. 32 of 1973

ADVOCATES

— V.G Bhangde and M.G Bhangde.

— C.G Madkholkar.
— V.A Masodkar.
JUDGES

R.D Tulpule
M.R Waikar, JJ.

IMPORTANT PARAS

1. 23. We do not think that this contention is sound. If we refer to Order 1, rule 1 and Order
2, rule 3, which permit joinder of defendants and joinder of causes of action it will be
seen that more than one plaintiff may join in a suit where the right to relief in them
arises “out of the same act or transaction or series of acts or transactions”. Now the said
right to relief need not arise jointly and it may arise jointly or severally or also in the
alternative in such persons. This is, however, followed by a proviso and a condition,
namely, that “if such persons were to bring separate suits in respect of the right to relief
arising out of the same act or series of acts or transactions, any common question of law
or fact would have arisen.” In other words, more than one plaintiffs can unite in a suit
and file a single suit, though they may not be entitled to that relief jointly and may be
entitled to it either severally or alternatively, if the right to relief arises out of the same
act or series of acts and any common question of law or fact arises in such a suit. This
clearly applies to the plaintiffs and does not speak of defendants. However, rule 3 of
Order 1 speaks of defendants and says that more than one defendants may be joined in a
single suit where against them “a right to relief in respect of or arising out of the same
act or transaction or series of acts or transactions” is alleged to exist. That may not arise

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 against them jointly and may arise severally and may also arise in the alternative. This
again is qualified by the same provision as is to be found in the case of the plaintiffs,
namely, that if separate suits have been brought, a common question of law or fact
would have arisen in such suits.

JUDGMENT

Tulpule, J.:— One Gaurishankar Shrivastava, who retired as a Director of the Veterinary
Department in the former Central Provinces, possessed property house No. 750 in Khare
Town, Dharampeth, Nagpur. The house consisted of the main building bearing Nos. 750/1
to 3 and the garage and out-houses in the said plot bearing No. 750/4 to 8. Gaurishankar
had purchased a plot upon which he constructed this main building, out houses and the
garage. The sale- deed was dated 23rd April, 1938 by which he purchased this plot
admeasuring 120 × 150 feet, nearly 20,000 sq. feet.
2. Gaurishankar had a brother by name Dayashankar. Family of Gaurishankar and
Dayashankar appeared to be not in comfortable circumstances and had very little
immovable property of their own. It was only after Gaurishankar entered Civil Service and
rose to the post of a Director that he acquired the property in suit. Dayashankar apparently
was maintained by Gaurishankar and did not do anything. He had 3 sons Lalitmohan,
Rammohan and Shyammohan, who were looked upon almost as his sons by Gaurishankar.
Gaurishankar died on 28th October, 1957 leaving behind his widow Rajrani and his
nephews as aforesaid. Prior to his death, Gaurishankar, according to the plaintiffs, had left
a will dated 3rd January, 1949. Gaurishankar also subsequently made a codicil by which
certain provisions of the will were amended and altered. That was on 19th November,
1952. According to the plaintiffs, by this will the property was devised by Gaurishankar
between his 3 nephews and his wife Rajrani. The property, which was, however, given to
Rajrani, his wife, was not given to her absolutely, but as a limited estate and during her
lifetime. It also provided that she could, if she wanted, sell this property to her nephews,
who were the other legatees under the will and to none other. By the codicil made on the
19th November, 1952 these provisions in the will were changed. Shyammohan, one of the
nephews, apparently incurred displeasure of Gaurishankar and was disinherited. Similarly
the right given to Rajrani to sell the property given to her, if so desired, in favour of her
nephews, was also taken away. In other words, by the codicil her right in the property was
limited to her lifetime only.
3. It appears that Lalitmohan and Rammohan as well as Shyammohan shifted from
Nagpur. All the brothers seem to have migrated to Jabalpur, presumably on the re-
organisation of the States and this area having merged in Bombay State. Lalitmohan and
Rammohan died respectively on 12-12-1961 and 12-12-1964 leaving behind them their
sons and widows. Admittedly, though Lalitmohan and Rammohan shifted to Jabalpur their
sons continued to remain at Nagpur taking their education living with their grandmother
Rajrani.
4. The present suit was commenced by the widow of Lalitmohan and the sons of

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Lalitmohan and Rammohan against 3 persons — defendants Nos. 1 to 3 — who claimed to
have purchased this property by two sale-deeds dated 20th December, 1968 from Rajrani,
and Maltirai the widow of Rammohan, and tenants—defendants in the properties. The suit
was for a declaration that the sale-deeds dated 20th December, 1968 were void and that the
plaintiffs were entitled to enjoy and remain in possession of the property and to restrain
defendants Nos. 1 to 3 by permanent injunction from interfering with their claim to
possession and ownership.
5. The plaintiffs alleged that by reason of the will and testament of Gaurishankar dated
3-1-1949 as modified by the codicil dated 19-11-1952, Rajrani had no transferable or
disposable interest in the property, and that she had only a limited interest to a part of the
property in which she had a right to live and enjoy during her lifetime. Rest of the
properties were given to Lalitmohan and Rammohan. Lalitmohan and Rammohan and
thereafter the sons and the family were living together along with Rajrani in the said house
and enjoying the property. So far as Rajrani and others were concerned, they were living in
the portion of the main building while the garage and other out-houses were let out to the
tenants. While this was the position and Rajrani had no power or right to dispose of the
property, on 20th December, 1968 by two sale- deeds she is purported to have sold the
smaller portion of this house bearing house No. 750/4 to 8 to defendants Nos. 2 and 3 and
the bigger portion to defendant No. 1. The sale- deed of the smaller portion was brought
about by defendant No. 1 Ishwar and one Raghunath Sarda. That these persons had
become persons of confidence of Maltirai, defendant No. 4 and Rajrani. That Rajrani did
not execute a sale-deed as such, but that her signatures were obtained on blank papers by
these persons representing to her that the signatures were required in connection with the
application for mutation of the smaller portion of the house. Signatures of Malti were also
obtained on the representation that those signatures were necessary in order to show that
Rajrani had signed in her presence. Those signatures so obtained were then made use of for
scribing a document of sale of the smaller portion thereon. No consideration for any of
these deeds was received by anybody, either Rajrani or Malti.
6. As regards the main building, namely, house No. 750/1 to 3, it is their further contention
that Rajrani did not execute any document, that she did not appear before the Sub-registrar
and both her signatures as well as the alleged thumb impressions said to have been made
before the Sub- registrar are not her signatures or her thumb impressions. According to
them, they are forgeries and the document was brought into existence by defendant No. 1
and/ or Raghunath Sarda. It was also their case that the document was brought into
existence by using their influence over the widows and by reason of misrepresentation and
fraud which was practised by them upon Rajrani and Maltirai.
7. The principal contention of the plaintiffs, however, is that Rajrani being incompetent to
transfer the property, she could not transfer any title in the property, nor hand over
possession. The plaintiffs who are the heirs or legatees of Lalitmohan and Rammohan are
entitled to this property and are in possession and since defendants Nos. 1 to 3 claimed that
they have purchased these properties from Rajrani, they were required to file this suit.
Hence they prayed for a declaration and injunction in terms of the prayers. Rajrani died on

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8th June, 1969 and within a year from the death of Rajrani, namely, on 3rd September,
1970, the present suit came to be filed.
8. Defendants Nos. 1 to 3 filed a common written-statement. According to them, they were
not aware of Raghunath Sarda being the person of confidence of Rajrani or Maltirai.
According to them, on 20th December, 1968 two sale-deeds were executed in their favour
properly, legally and validly by Rajrani. They denied the existence of the will or that the
will was properly, legally and validly made for want of knowledge. They also denied the
alleged dispositions in the will. According to them, the property did not belong to
Gaurishankar exclusively and in any event after the death of Gaurishankar belonged
exclusively to his widow, and only heir Rajrani, and to none others.
9. The documents, according to them, were not brought about either by undue influence,
misrepresentation or fraud. That Rajrani herself presented the documents before the Sub-
Registrar and signed them in the presence of the Sub- Registrar. That thereafter the
defendants have started recovering rent from the tenants who were in possession of the
property.
10. It is also the case of the defendants that Rajrani was an ostensible owner of the
property. That they took all precautions and care and acted in good faith, paying valuable
consideration to Rajrani of the properties in suit. They purchased the properties, therefore,
from a person who held out to be the owner of the property. Since they had purchased this
property for a valuable consideration from the ostensible owner, the plaintiffs cannot now
turn round and say that they are the owners. They also claimed protection under Section 41
of the Transfer of Property Act. They, therefore, prayed that the suit ought to be dismissed.
11. Defendant No. 4 filed her separate written- statement by which in substance she
admitted the claim of the plaintiffs. As regards the will, however, she stated that she had no
personal knowledge and, therefore, the plaintiffs be required to prove that. So far as
Raghunath Sarda was concerned, according to her, Rajrani was persuaded by this
Raghunath Sarda to execute a sale-deed of the smaller portion of the house covered by the
garage and out-houses in favour of defendants Nos. 2 and 3 for a sum of Rs. 20,000. That
she being an obedient daughter-in-law of Rajrani had to attest the sale-deed in obedience to
what she was directed. She stated that she does not know whether any consideration was
received. According to her, she has now realised that Sarda has taken undue advantage of
their acquaintance and by means of coercion and misrepresentation had obtained a sale-
deed in favour of defendants Nos. 2 and 3 of the smaller portion of the house. This Sarda,
according to her, had “created great impression on her and managed to seek her favour
under misrepresentation and got several signatures of hers on the blank papers telling her
that this defendant both that they were for the alleged sale of the out house strip bearing
No. 750/4 to 8 only and for the attornment of the tenants living therein etc.” According to
her, said blank papers and the signatures made by her and Rajrani now appear to have been
utilised for purposes of making out a sale-deed in favour of defendant No. 1. That Rajrani
did not execute any such sale-deed nor was she present in the office of the Sub-Registrar.
That was, according to Maltirai, an impersonation by somebody. The written- statement

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filed on behalf of other defendants-tenants is not very material for the purposes of this suit.
12. The learned trial Judge framed a number of issues and in particular whether the will
dated 3rd January, 1949 was the last will of Gaurishankar. He held that the will was legally
and validly made and was the last will of Gaurishankar. The consequence of this finding
naturally resulted in holding that no title was transferred or bestowed by reason of the sale-
deed in favour of defendants Nos. 1 to 3. He, however, also held with regard to the sale-
deed in favour of defendant No. 1 dated 25th December, 1968 that it was not executed by
Rajrani. In regard to both these sale-deeds he was of the view that they were obtained by
fraud and were voidable. As the plaintiff's right to succeed to the property and right to be
in possession of the property was held by him flowing from the will, he decreed the
plaintiffs' suit and also held that the suit for declaration without asking for possession was
maintainable. In the result, he decreed the plaintiffs' suit.
13. Aggrieved by the judgment and decree defendant No. 1 alone has preferred this appeal.
Defendants Nos. 2 and 3 have not preferred any appeal and seemed to be satisfied with the
decree which has been passed against them. Consequently the area of controversy in the
present appeal relates only to the sale-deed in favour of original defendant No. 1 Ishwar
Korga Pujari, hereinafter referred to as Ishwar, and the transaction evidenced by Ex. 128
dated 20th December, 1968.
14. Mr. Bhangde who appeared for Ishwar raised before us four principal contentions. His
first contention was that the alleged will of Gaurishankar, dated 3-1-1949 and the codicil
effected on 19-11-1952 are not alleged to be the last will and testament of deceased
Gaurishankar. In the absence of any pleading and in the absence of any evidence that the
said will was the last will of Gaurishankar, he contended that it cannot be held, as was held
by the learned trial Judge, that was the last will. He contended that unless the will was
shown to be the last will, the succession would be in accordance with the law of
inheritance and not in accordance with the testament. Therefore, if the property belonged
to Gaurishankar, on his death it would go to his heir, namely, widow Rajrani. If his widow
Rajrani was the sole heir and successor to the property, under the law of inheritance, which
was applicable, then he claimed that if appellant Ishwar succeeds in proving that the sale-
deed Ex. 128 was executed by Rajrani, the suit must be dismissed.
15. Second contention of Mr. Bhangde was that the suit was bad for multifariousness.
According to him, though such a contention was raised in the written statement, no issue
was framed by the learned trial Judge. Merely because no issue was framed if the
contention was raised, he submitted, the matter had to be decided. According to him in the
present case, since the suit was bad for misjoinder of parties and causes of action grave
prejudice has been caused to appellant Ishwar.
16. The third submission which Mr. Bhangde urged before us was that it was wrongly held
that the document Ex. 128 was not executed by Rajrani. He pointed out that no evidence
has been led as to the circumstances in which, and the possibility in which Raghunath
Sarda could have acquired such blank signed documents. The evidence adduced by the
plaintiffs did not go to establish that Raghunath Sarda could have obtained blank

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documents and signatures from the two ladies and had a position of confidence so far as
they were concerned. Since that was not established, the very basis of the plaintiffs' claim
that blank signatures were obtained and those blank signatures on a piece of paper were
converted and used for the purpose of bringing into existence a sale deed must itself fail.
17. Mr. Bhangde's secondary contention. In this context was that the signature of Rajrani
as an executant upon the document Ex. 128 has been admitted. It does not matter, even if
the signature of presentation before the Sub-Registrar and the signature in token of receipt
of consideration are not proved to be that of Rajrani. It was Mr. Bhangde's contention that
these signatures were also of Rajrani as was proved by Ishwar's own evidence and that of
an Expert examined by him. He also relied in this connection on the evidence of witness
Shyammohan examined by the plaintiffs. In the circumstances of the pleadings and the
evidence, it was Mr. Bhangde's contention that the execution of the document Ex. 128
must be held to have been proved and ought to have been so held. As a subsidiary
contention of that contention and as a part of the conduct of Rajrani and of Ishwar
defendant No. 1 appellant, it was urged that the suit ought to have been filed for
possession. That Ishwar Korga had been recovering rent from his tenants in the main
building. That he did so for about a year and it was only after the suit notice was given to
him that the tenants had stopped paying rent to him. If Ishwar was, therefore, in
possession, merely because the plaintiffs were in possession of a part of the property,
which also was not in their possession but was in possession of Rajrani, the plaintiffs could
not bring a suit merely for a declaration and injunction.
18. Mr. Bhangde then contended that Rajrani had been allowed to deal with the property as
if she was the full owner. That no action seems to have been taken pursuant to the will
dated 3-1-1949 and the codicil of the 19th November, 1952, either by the executor named
under the will or by the legatees. The entire rent of the properties was admittedly received
by Rajrani who managed the property as if it belonged to her. If Lalitmohan and
Rammohan and the present plaintiffs lived in the property and yet allowed the property to
be managed and looked after as if it belonged to Rajrani, then Section 41 of the Transfer of
Property Act came to the assistance of Ishwar- appellant. According to Mr. Bhangde, all
those reasonable enquiries which were necessary and under the circumstances warranted
were made by him. Ishwar acted in good faith and paid valuable consideration of Rs.
40,000. Rs. 25,000 out of that consideration were paid before the Sub- Registrar and
admittedly received by the executant of the document Ex. 128. Therefore, even if the will
is held to be proved as the last will and testament of Gaurishankar, still according to Mr.
Bhangde, section 41 provided an adequate shield to the appellant to resist the plaintiffs'
claim.
19. Lastly it was Mr. Bhangde's contention that under the will a part of the property was
admittedly given to Rajrani, though by way of a limited estate. Rajrani being the wife and
widow of Gaurishankar, he contended, had a right to be maintained by Gaurishankar, and
out of his property. She had a right which existed even before the will came into existence
and the will started speaking. If in token of that right or in satisfaction of that right,
property was given to Rajrani, may be as a limited owner, by reason of section 14 of the

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Hindu Succession Act, which applies to such dispositions made even after the coming into
force of the Act, would enlarge the estate which was conferred upon Rajrani into a full
estate. He contended, therefore, that the combined effect of section 14 of the Hindu
Succession Act and the provisions of Hindu Adoptions and Maintenance Act resulted
in enlarging the estate of Rajrani into a full proprietary interest. Defendant No. 1 Ishwar
who had purchased that interest from Rajrani was entitled to remain in possession at least
of that portion of the property which had been bequeathed, under the will to Rajrani.
20. Mr. Bhangde who argued this appeal with fairness and ability, however, conceded that
if it is found that the document Ex. 128 was not executed by Rajrani then all these
questions which have been raised by him would recede into insignificance and in the back
ground. He, however, seriously contended that a grave prejudice has been caused to Ishwar
in the present case, which was bad for multifariousness, being allowed to proceed to trail
without deciding that question. He pointed out that though a joint written- statement was
filed by defendants 1 to 3, defendant No. 2 only entered into the witness-box. Defendant
No. 2 appears to have colluded, subsequent to the filing of the written-statement with the
plaintiffs and gave evidence, Mr. Bhangde says, against defendant No. 1 Ishwar and in
favour of the plaintiffs. This has directly affected and prejudiced the case of defendant No.
1 Ishwar. These are according to Mr. Bhangde really two suits in respect of which the
defendants did not have a unity of interest. The causes of action against the two sets of
defendants were also dis-similar. All the defendants did not have interest in all the causes
of action and therefore, they could not be joined in a single suit. Mr. Bhangde contended
that these are in effect two suits combined into one. He also pointed out that the plaintiffs
have not in the alternative based their case as being heirs of deceased Rajrani or deceased
Gaurishankar after the death of Rajrani. No such alternative claim is put forward on behalf
of the plaintiffs and therefore, according to him, these two suits could not be brought
together so as to cause prejudice in the defence to defendant Ishwar.
21. We would in the first instance take up the question as to whether the suit was bad for
multifariousness. We have already pointed out that the claim made by the plaintiffs in this
case is based upon the will dated 3-1-1949 left by deceased Gaurishankar. Therefore, it is
quite clear that the only title which the plaintiffs are claiming is on the strength of the will.
It is also plain from the recitals in the plaint that the plaintiffs' claim that they are in actual
physical possession of a portion of the property, which is not in dispute. The rest of the
property is in the possession of the tenants. The evidence which has been adduced in this
case goes to show that the plaintiffs must be held to be also in possession constructively
through their tenants. The question which is necessary to be considered at this stage is
whether such a suit for injunction and declaration filed on the basis that the plaintiffs are in
possession of the property and are, therefore, entitled to an injunction against persons who
are not entitled to possession is in any way bad for multifariousness.
22. Mr. Bhangde contended that under Order 2, rule 3 of the Code of Civil Procedure ,
referred to hereinafter as the Code , a joinder of causes of action is permitted only as
contemplated in that rule . Order 2, rule 3 of the Code permits a plaintiff to unite in a
single suit several causes of action against the same defendant or defendants jointly. It also

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permits plaintiffs jointly interested in the causes of action to join in a single suit, except as
is otherwise provided. The causes of action, according to Mr. Bhangde, against the two sets
of defendants were separate and independent and the plaintiffs cannot be said to be jointly
interested in the different causes of action.
23. We do not think that this contention is sound. If we refer to Order 1, rule 1 and Order
2, rule 3, which permit joinder of defendants and joinder of causes of action it will be seen
that more than one plaintiff may join in a suit where the right to relief in them arises “out
of the same act or transaction or series of acts or transactions”. Now the said right to relief
need not arise jointly and it may arise jointly or severally or also in the alternative in such
persons. This is, however, followed by a proviso and a condition, namely, that “if such
persons were to bring separate suits in respect of the right to relief arising out of the same
act or series of acts or transactions, any common question of law or fact would have
arisen.” In other words, more than one plaintiffs can unite in a suit and file a single suit,
though they may not be entitled to that relief jointly and may be entitled to it either
severally or alternatively, if the right to relief arises out of the same act or series of acts and
any common question of law or fact arises in such a suit. This clearly applies to the
plaintiffs and does not speak of defendants. However, rule 3 of Order 1 speaks of
defendants and says that more than one defendants may be joined in a single suit where
against them “a right to relief in respect of or arising out of the same act or transaction or
series of acts or transactions” is alleged to exist. That may not arise against them jointly
and may arise severally and may also arise in the alternative. This again is qualified by the
same provision as is to be found in the case of the plaintiffs, namely, that if separate suits
have been brought, a common question of law or fact would have arisen in such suits.
24. Order 1, rule 1 and Order 1, rule 3 of the Code are thus complementary to each
other. Whereas rule 1 provides for the joinder of the plaintiffs, rule 3 provides for the
joinder of defendants. What is common to both is that the right to relief against the persons
who are sued must arise out of the same act or series of acts. It is not necessary that either
the plaintiffs or the defendants must be jointly interested in all the causes of action or
rights to relief, they may be interested jointly and may also be interested severally or
alternatively. This, however, has a qualification and the qualification is that a common
question of law or fact must arise, and the test is that such a common question of law or
fact would have arisen if all these persons had filed separate suits against all these persons
against whom right to relief is claimed. In other words, it is patent that several persons may
join in an action provided their claim or right is based upon the same act or series of acts
against a defendant or defendants against whom the relief is claimed and provided if they
had brought separate suits against the several defendants by the several plaintiffs a
common question of law or fact would have arisen. The test, therefore, clearly seems to be
that the right to relief and the persons against whom the right to relief is claimed must arise
out of the same act or series of acts and the adjudication of that act or acts must involve a
common question of law or fact. Applying these tests it is quite clear that the basis of the
claim made by the plaintiffs, supposing they were to file two separate suits against
defendant No. 1 and defendants Nos. 2 and 3, would have been the same. That basis is

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their right to the property on the basis of the will left by Gaurishankar. It was certainly,
therefore, a common question and if we may so say common question of law or fact would
have arisen. It is not merely that, but that the question of possession which was being
disturbed, which it was alleged was being disturbed by the defendants, also raised a
common question of law as well as of fact. The right to an injunction is again based upon
existing possession, and if what was necessary to be proved by the plaintiffs and if the
right to relief against defendants Nos. 1 to 3 for an injunction arose for the plaintiffs by
virtue of the fact that they were entitled to possession and were in possession, once again a
common question of law and fact would have arisen in two separate suits had they been
filed by the plaintiffs.
25. Mr. Bhangde contended that defendant No. 1 was not interested in any way in the
transaction resulting in sale- deed in favour of defendants Nos. 2 and 3. Similarly
defendants Nos. 2 and 3 were also not interested in the sale- deed executed in favour of
defendant No. 1. All the diverse questions in regard to fraud, misrepresentation and
influence or confidence against Raghunath Sarda arose in different circumstances or would
have arisen in different circumstances in respect of sale-deed of defendants Nos. 2 and 3
and in respect of defendant No. 1. According to Mr. Bhangde, though such questions may
be similar, they were not common questions which would arise in such a suit. He urged
that in that event it would be improper and not conducive to justice and fair trial to try such
suits together. He seems to suggest that it is not enough that one single question may arise
in common in such suits but all the questions which arise in both the suits must be
common.
26. We do not think that contention is sound or warranted on the basis of the words used in
Order 1, rule 1, or Order 1, rule 3 of the Code . The words used are singular and not
plural. Besides the emphasis is supplied by the addition of the noun “any”. It is, therefore,
clearly not necessary that more than one common question of law or fact must arise or all
questions arising in the two suits either of law or fact must be common in both the suits
when only one suit can be filed by more than one plaintiffs against more than one
defendants provided of course the right to relief arises from the same act or series of acts.
27. Besides no suit can be dismissed on the ground that it is bad for multifariousness. We
do not think that the defendant No. 1 in this case felt that there was any prejudice likely to
be caused to him. If there was any prejudice likely to be caused, then we feel that at the
earliest opportunity defendant No. 1 would have sought an issue and decision on the
matter. No such issue has been framed and we think that defendant No. 1 did not press,
though he had raised that contention before the trial Judge, his contention of
multifariousness, as he did not think that there was any prejudice going to be caused to
him. We feel and we think that defendant No. 1 must have rightly felt, that the principal
question in the case was in regard to the claim or right of the plaintiffs to the property and
the second question was whether that right could be defeated by the execution of the sale
deed in his favour as claimed by them by Rajrani. These two questions are really the basic
questions in this suit and they could have been common to both the suits; we do not think,
therefore, that there is any substance in the contention that the suit was bad for

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multifariousness or that defendant No. 1 was in any way prejudiced in the conduct of the
trial of the suit by reason of defendants Nos. 2 and 3 being joined in the very suit.
28. Mr. Bhangde fairly conceded before us that so far as the formal execution, proof,
legality and validity of the will dated 3rd January, 1949 and the codicil dated 19th
November, 1952 Exs. 79 and 79-A are concerned, he was not in a position to assail that
evidence. We think that the concession is rightly made and the evidence given by the two
attesting witnesses, namely, Shri P.V Lele (P.W 1) and Shri V.G Ayachit (P.W 2)
respectively to prove the will as well as the codicil clearly satisfies the test of section 68 of
the Evidence Act. Exs. 79 and 79A, therefore, must be held to have been legally and
validly executed.
29. [After considering the oral evidence on the question whether Exhibits 79 and 79A were
proved to be the last will and testament of the deceased in paras. 27 to 80 the Judgment
proceeds:]
30. We may now refer to some of the cases to which reference was made by Mr. Bhangde
relating to the execution of a document. In Sarkar's Evidence Act, page 639, the meaning
and the proof of the word “execution” has been set out. It says “Executed” means
completed. ‘Execution’ is the last act or series of acts which completes it. Execution
consists in signing a document written out and read over and understood and does not
consist of merely signing a name upon a blank sheet of paper. To be executed, a document
must be in existence; where there is no document in existence, there can be no execution”.
31. It seems to us plain that a person cannot be said to execute a document where he does
not do so with the intention of making it. This may appear to be simple, but it is clearly, in
our opinion, full of meaning and import. The word “execution” in a sense means the
making of a document, and a person can be said to have made or authorised a document
where with the intention and knowledge of bringing into existence a particular kind of
document he prepares or gets prepared, such a document and signs it in token of his having
accepted that document, with a desire to bring it into existence. Mere signing of a
document without the intention of bringing that document into existence, meaning thereby
giving effect to it would not properly speaking attract the expression “execution”. A person
may, for instance, prepare and sign a document and put it away without any intention of
bringing it into existence at that time. The intention to bring it into existence may be
contingent, may also be dependent and may never be acted upon. Where a document is
delivered to a person intended to be delivered to, or with a view that it should be acted
upon, it could be said that the document has not been brought into existence. The
execution, therefore, would mean a conscious making out of a kind of document intended
to be made out, acknowledging it that it is so made out by affixing his signature or thumb
mark to that document in token of having accepted it, and when it is delivered or
communicated, or any act is done in that behalf with a view to bring it into existence. The
intention must be to bring it into effect. It is when all these transactions and acts are
intended and also completed, that a document in a proper sense can be said to have been
executed.

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32. Mr. Bhangde first relied upon a decision in Gopal Das v. Sri Thakurji. AIR 1943 PC
83. and the observation therein that “the evidence of due registration is itself some
evidence of execution”. In that case certain documents had been admitted in evidence and
an endorsement appeared thereon as admitted against the plaintiffs. No objection seems to
have been raised when the document was admitted in evidence and so exhibited, to its
admission or exhibiting on the ground that the document was not proved. The plaintiffs
against whom this document was admitted made a grievance thereof and raised that ground
for the first time in the Court of Appeal. It was found that at the appropriate time no
objection was raised to the admitting and exhibiting the document and making the
endorsement. The question there was whether Parshottam Das had made a certain
statement. In the circumstances the only question which was raised was whether the person
who had appeared before the Registrar was Parshottam Das or an impostor. It is in this
context that the Privy Council observed that “registration is itself some evidence of
execution”. This observation made by the Privy Council was later explained in
Ramkrishna v. Mohammad Kasam . 1971 Mh. LJ 511. to which we will make a
reference later.
33. Mr. Bhangde heavily relied upon Dalchand v. Hasanbi. AIR 1938 Nag. 152.. In that
case it was observed that “the initial burden of proving execution of a document when it is
denied is upon the person alleging execution. But if nothing else is known, then the mere
fact that a document is admitted to bear a certain signature and that it comes from proper
custody ought to be enough to raise an inference that it was signed with the intention of
execution.” Mr. Bhangde submitted that it was admitted in this case that the signature on
the document was of Rajrani. The document is produced by him and, therefore, execution
should be held, since nothing else is shown or alleged as proved. In that case there were
two documents, proof of which was in question, one of 2nd October 1912 and second of
31st August, 1920 of which copies were produced. The execution of these documents was
called in question much later. It is in these circumstances that the case came to be decided.
We may, however, refer to an observation of the Bench that “We have no quarrel with the
general proposition that proof of signature is not necessarily proof of execution and that an
admission that a document bears a man's signature is not necessarily an admission of
execution. The circumstances of the case may negative such an inference”. We think that
the proposition which has been made out in that case is that an admission of signature on a
document without anything more would lead to an inference that the document was
executed, as persons do not put their signatures to documents without knowing and reading
their contents. Circumstances, however, may arise which would negative a prima facie
inference so arising. We think that there exist a host of circumstances in this case to
negative, assuming a prima facie inference were to arise in this case.
34. In Alapati Sivaramakrishnayya v. Alapati Kasiwiswanadham . AIR 1957 AP 584. the
question was of the proof of a letter. There was no question of any formal proof and it was
held proof of a man's signature under it a prima facie proof that the contents of the letter
are attributable to his authorship. If a person denies that he has written a letter which bears
his signature, then surely he must prove what he alleges i.e the letter was got up on a blank

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piece of paper containing his signature. This case followed Dalchand v. Hasanbi (cit.
supra) to which we have already made a reference and the judgment in that case is based
upon the Nagpur decision. We may refer to some of the observations in this case, which
point out, the distinction between the case of a letter and a deed as in this case. “It is
necessary to point out that the word ‘execution’ is hardly apt when used in regard to the
drafting of a letter and is only appropriate in regard to a deed or instrument, as in such
cases, certain formalities are insisted upon by law and they are to be followed by the
executant in order to make the document effective in law”. It is true that a sale-deed is not
one such category of document which requires to be proved by examining an attesting
witness, but nevertheless a sale- deed is much more formal document and a solemn
document than a mere letter.
35. Mr. Bhangde fairly pointed out to us that the observations of the Privy Council in
Gopal Das v. Shri Thakurji (cit. supra) have been explained in Ramkrishna v.
Mohammad Kasam . In that case the question was whether a certain wakf deed was
executed. The execution of the wakf deed was denied. Reliance was placed in this
connection on the evidence of one Kazi Rahimuddin said to have been present at the time
of the deed. The High Court disagreed with that view. It is in this context that the Privy
Council decision in Gopal Das v. Sri Thakurji was relied upon. By relying upon the
provisions of section 60 of the Registration Act and the Privy Council decision in the
Court below, it was considered that “that was somewhat evidence of execution”. The
Bench then proceeded to consider various decisions in that behalf and pointed out that it
has been held as far back as in Maruti v. Dattu . AIR 1923 Bom. 253. that from the
endorsement made by the registering officer that a certain person admitted the execution, it
may be presumed that the person who admitted execution was the person who signed the
deed but that does not of itself prove who signed the deed. Reference was then made to
Thama v. Govind. 19 Bom. LR 401. which observed that the “endorsements may show
that the person purporting to sign admitted his signature before the Registrar. In the
absence of any further evidence… of the necessary link in the chain that the person who
admitted execution before the Registrar was the person who could give title to the
plaintiff”, the alleged admission would not pass any title. The Bench then took a review of
all the cases and pointed out that “a certificate of registration given under section 60 of the
Registration Act is not sufficient to prove due execution of a document and when the
execution of a document is denied proof as required by section 67 of the Evidence Act
must be furnished.” The Privy Council decision was observed to be as “not laying down
that proof as contemplated by section 67 of the Evidence Act can be dispensed with in the
case of a registered document.”
36. It will thus be seen that the correct view to take in regard to an execution of a
document which is denied and the signature thereto only is admitted, is if there is nothing
else and no other circumstances are pleaded, then the question as to upon whom the burden
of proof is of the execution of the document will depend upon the circumstances of that
case. Where, however, only the signature is admitted and the execution is denied and the
other facts pleaded and circumstances shown to be existing, it is the person who alleges

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that the document was executed has to prove that it was so executed in the sense that the
executant intended to make and bring into existence the document which it purports to be.
37. Mr. Bhangde fairly drew our attention in this context to the judgment reported in
Dattatraya v. Rangnath. 1972 4 SCC 181 to which we now refer. A contention was
advanced before the Court by counsel for the appellant in that case that “when the
execution of a document is denied, the party seeking to prove that document must not only
prove that the alleged executant has signed that deed, but he must also prove that the
executant had signed the same with the knowledge of its contents.” The Supreme Court
observed “What facts and circumstances have to be established to prove the execution of a
document depend on the pleas put forward. If the only plea taken is that the executant has
not signed the document and that the document is a forgery, party seeking to prove the
execution of a document need not adduce evidence to show that the party who signed the
document knew the contents of the document”. It was pointed out that firstly a person does
not put a signature to a document without knowing its contents, but where it is so pleaded,
then in certain circumstances it will be necessary for the party seeking to prove the
document to place material before the Court to satisfy it that the party signing the
document had knowledge of it. We think that in the present circumstances the plaintiffs
clearly pleaded that Rajrani did not sign the document knowing its contents or intending to
execute a sale- deed, knowing that she was so executing a sale- deed. We think in the
present case it was not sufficient for defendant No. 1 to merely prove the signature on Ex.
128 at page 9 to be that of Rajrani.
38. In view of what we have discussed above and in view of the various circumstances set
out and the evidence, we are inclined to hold that the document in this case Ex. 128 was
not executed by Rajrani. We are satisfied that the evidence is clear that Rajrani on 20th
December, 1968 had gone to the Sub-Registrar's office and only one document Ex. 95 was
registered that day as executed by her.
39. Mr. Bhangde then contended that defendant No. 1 is protected by reason of provisions
of Section 41 of the Transfer of Property Act. He submitted that the evidence disclosed
that it was Rajrani alone who was recovering rents of the property. Ex. 131 showed that
Municipal Corporation tax bill was issued in the name of Rajrani alone, though there are
other bills standing in the names of others. The entire income of the property was being
taken by Rajrani. There was no evidence, according to him, of either Lalitmohan or
Rammohan having asserted their title to the property at any time prior to their death.
Maltirai who lived along with Rajrani must have been doing so after her husband's death.
She also did not assert any act of ownership or interest in the property. Mr. Bhangde made
this submission in the alternative in case his contention that the will was not the last will
was not accepted. We have already held that the will and codicil in this case Exs. 79 and
79-A are the last will and testament of Gaurishankar.
40. For Section 41 of the Transfer of Property Act the consent of the real owners need not
be express. Where such person constitutes another as an ostensible owner of such property,
it is then that the real owners are not allowed to turn round and claim the property,

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provided the other requirements of section 41 are satisfied. Section 41 of the Transfer of
Property Act enacts a special branch of estoppel arising against real owners permitting a
person to put forth himself as the owner of the property. The principle, however, is not
unqualified, and it requires that the transferee must take reasonable care to ascertain that
the transferor has power to transfer and acts in good faith. “Good faith” is defined in
section 52 of the Indian Penal Code . Though the definition is in the negative term “good
faith” presupposes due care and attention. Absence of due care and attention is want of
good faith. The transferee must also take reasonable care to ascertain that the transferor has
power to make the transfer. If these two requirements are not satisfied, then there is no
question of any estoppel arising against the real owners and the benefit cannot be given to
the transferee.
41. We are unable to accept, on the evidence which has been adduced in this case, that
Ishwar the transferee had either acted in good faith or had taken reasonable care to
ascertain whether Rajrani had the power to alienate. We have already pointed out that the
evidence produced by defendant Ishwar himself in the form of Exs. 130 to 135 showed that
apart from Rajrani the name of other persons appear in the Municipal records. In the
enquiry, Ishwar says, he made at the Sub-Registrar's office no other name except that of
Gaurishankar was found by him. A reasonable care would pre-suppose investigation in the
title and investigation of the nature and circumstances of the claim of persons whose
names appear in the other record, namely, the Corporation record. There is not even a
public notice issued. Ishwar is completely silent as to the investigation of the title deeds
and admits that he made no enquiry excepting at the two offices. It is clear to us that the
appearance of the three names, Lalitmohan, Rammohan and Shyammohan in the
Corporation records put Ishwar on enquiry and must have put him on enquiry as to their
interest in the property. He states that during the course of his talks with Rajrani, Maltirai
was present with Rajrani. He also admitted to have seen the young boys, namely, son
Lalitmohan and yet he does not make any enquiry either of Rajrani or of Maltirai, as to
how Rajrani was the owner and as to how she got the property solely to herself. An
absence of any enquiry whatsoever cannot be described as taking all reasonable care. The
words used in the section are “taking reasonable care to ascertain” the transferor's power to
make the transfer. The word “care” is stronger than the word “enquiry”. The burden,
therefore, required to be discharged by the transferee under Section 41 of the Transfer of
Property Act is a heavier burden than in the case of a mere enquiry or a reasonable enquiry.
42. In our opinion, Ishwar did not act in good faith and with due care and attention. Not
only that, we have already made a reference to the circumstance that Ishwar was getting a
very cheap bargain and that would normally require him to take all such care and attention
as a normal prudent man would be expected to take. Rajrani was a fairly old woman. In her
last days of life she is said to have been ailing also and used to be in bed. She died soon
after the sale-deed on 8th June, 1969. If no enquiry was made and if Ishwar does not say
that he made enquiry as to whether there were any sons of Rajrani and Gaurishankar or
other persons as heirs, we do not see how Ishwar can be said to have acted in good faith.
43. He has similarly made no enquiry with the tenants. It is only after about 5-6 months

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that he says that he went to the tenants and demanded rent from them as also the arrears for
six months. He claims that the rent was paid to him by the tenants for about 11 months and
he passed receipts to them. Neither has he produced any counterfoils of such receipts, nor
did he call upon the tenants to produce the receipts which he had passed in their favour. We
are unable to think that he either claimed any rent from them or attempted to recover that
rent or received any rent. He has been questioned as regards certain signed documents and
thumb impressions of Rajrani and Malti obtained on blank papers having been used for
purposes of communication to the tenants and Corporation even after Rajrani's death. A
number of such documents were produced by the plaintiffs at Exh. 156 to 161. They cast a
considerable amount of suspicion over the entire transaction. Mr. Bhangde, however,
contended and rightly that the learned trial Judge was in error in allowing these documents
at the fag end of the trial and exhibiting them. Though it does appear that some of these
documents were produced along with the plaint, no effort has been made to prove the
original. The documents produced are either certified copies or photo copies of the original
which were in the possession of Nagpur Municipal Corporation. We think that these
documents must be left out of consideration. We will not, therefore, consider that part of
the evidence of Ishwar relating to these documents. Nevertheless his evidence clearly goes
to show a conduct of a person who did not bona fide and in a genuine transaction purchase
such a valuable property. The defence, therefore, raised under Section 41 of the Transfer of
Property Act must fail.
44. That takes us to the last contention which was raised by Mr. Bhangde. Mr. Bhangde
sought to raise this new ground by way of an amendment to his appeal memo. It was urged
that no such ground was taken in the written statement and should not be allowed. Mr.
Bhangde sought to raise a legal contention by the amendment and that was, that even if the
will and testament Exh. 79 and Exh. 79- A were held proved, the estate which was
conferred by the will upon Rajrani was a limited estate. That estate, he submitted,
automatically bloomed into a full title by reason of section 14 of the Hindu Succession
Act. It was Mr. Bhangde's submission that Gaurishankar's widow Rajrani had a pre-
existing right to be maintained. That during the life-time of Gaurishankar the right was a
personal right against her husband. If that right he submitted got translated into a bequest
of immovable property during the life-time of a wife that was in recognition of that pre-
existing right and a provision was made for her maintenance by conferring upon her
immovable property in which the husband purported to create a life estate. Mr. Bhangde
submitted that no new facts were necessary to be proved or established. On the facts held
proved and emerging on the evidence, he was entitled to submit a legal contention that it
was sub-section (1) of section 14 of the Hindu Succession Act which applied and enlarged
Rajrani's estate in the property. Even if, therefore, defendant No. 1 fails on other aspects,
he submitted that if the execution of the deed is held to have been made by Rajrani, then to
the extent the property was given to Rajrani, Ishwar's claim to the property should be
upheld.
45. Since the question raised by Mr. Bhangde is pure question of law, we have allowed him
to raise it by an amendment. We do not think, however, that sub-section (1) of section 14

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of Hindu Succession Act has any application in the present case. Reliance was placed in
this behalf on the provisions of section 14 of the Hindu Succession Act, section 18 of
the Hindu. Adoptions and Maintenance Act as also sections 21 and 28 of the same
Act. Mr. Bhangde also drew our attention to section 39 of the Transfer of Property Act. He
also relied upon the decisions of the Supreme Court in Vaddebovina Tulasama v. Sesha
Reddi. 1977 3 SCC 99 and Bai Vajia v. Thakorbhai Ghelabhai. 1979 3 SCC 300.
46. Now it may be mentioned that the Hindu Succession Act came into force on the 18th
June, 1956 and the Hindu Adoption and Maintenance Act came into force on 22nd
December 1956. Those two Acts and other connected Acts, such as Hindu Marriage Act
and Hindu Minority and Guardianship Act which came into force in that year were
parts of intended reforms in the Hindu Law which compendiously were sought to be
brought under the Hindu Code . Where these enactments made provisions, then the
contrary provisions in the Shastric Hindu Law, which till then governed Hindus, so far as
their personal law was concerned, would abrogate and yield to the enacted provisions. The
wife's right to maintenance was also recognised under the ordinary Hindu Law. Section
18(1) of the Hindu Adoptions and Maintenance Act entacts that a Hindu wife is
“entitled to be maintained by her husband during her lifetime.” Mr. Bhangde's contention,
therefore, was that the right to be maintained was during the lifetime of the wife, and,
therefore, could be enforced even after the lifetime of the husband. If no arrangement had
been made and the husband leaves any property, then it is that property which can be
proceeded against. It then becomes the subject of realisation of that right.
47. The wife is also included in the dependents mentioned in section 21 of the said Act.
Reliance was then placed upon section 28 which says that “where a dependant has a right
to receive maintenance out of an estate, and such estate or any part thereof is transferred,
the right to receive maintenance may be enforced against the transferee, if the transferee
has notice of the right, or if the transfer is gratuitous……” The widow's right to
maintenance, therefore, according to him, being a dependent, could be enforced against the
legatees. So far as the property given to her was concerned, that stood on a different
footing.
48. We may notice section 27 of the Hindu Adoptions and Maintenance Act and
section 39 of the Transfer of Property Act. Under section 27 the right of maintenance is
a personal right. Section 18 also does not say that the right is other than personal. It
becomes a charge or an interest in the property and the property gets encumbered only
where it is “created by the will of the deceased by a decree of court, by agreement between
the dependents and the owner of the estate or portion, or otherwise.” Similar to section 28
is the provision in section 39 of the Transfer of Property Act and considerations which
apply to cases under section 39 of the Transfer of Property Act would equally apply to
cases under section 28 of the Hindu Adoptions and Maintenance Act. The real question,
however, is whether section 14 of the Hindu Succession Act has application to such a case.
49. We are in the present case concerned with a post Hindu Succession Act death of a
Hindu male. All these enactments, as pointed out were placed on the Statute book in the

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year 1956. A female and a widow of a deceased male under the Succession Act is
recognised as an heir and immediately takes an interest in the property upon intestacy
under section 8. A widow is an heir in Class 1. If there in any property left by a Hindu
dying intestate, then the widow can claim that property as an heir; But it would be difficult
to think that she would be able to enforce her claim to be maintained from out of the other
property of the deceased going to other heirs on the ground that the property which came
to her by way of inheritance was not enough. The right to maintenance being a personal
right, with the disappearance of the person such a right would be gone. Both section 28 of
the Hindu Adoptions and Maintenance Act and section 39 of the Transfer of Property
Act speak of the right to receive maintenance “out of an estate, and such estate or any part
thereof is transferred.” Therefore, we think that in order to attract either section 28 of the
Hindu Adoptions and Maintenance Act or section 39 of the Transfer of Property Act,
the right must be with reference to any property and in the property.
50. Mr. Bhangde contended that it is really not a right in the property, but it is a right
against the property. We are unable to agree. The words used in the section, as we have
pointed out, refer to the existence of the right to maintenance, either out of the property or
out of the profits of the property. It is, therefore, a right or interest in the property. It would
be against that property only if the property is liable to be taken for realisation of that right
under a decree. What appears under section 28 of the Hindu Adoptions and
Maintenance Act and section 39 of the Transfer of Property Act is a right which travels
with the property and is attached to it. That is why it can be enforced against a gratuitous
transferee and also against a transferee with notice. Even such a right cannot be enforced
against a transferee without notice.
51. It is, therefore, unnecessary to go into this controversy as we do not think that section
14(1) of the Hindu Succession Act has any application to this situation. Reliance was
placed upon the words in sub- section (1) of section 14 relating to property “whether
acquired before or after the commencement of this Act.” It was, therefore, urged that
Rajrani may have acquired this property after the Hindu Succession Act came into force.
She was, however, possessed of that property and, therefore, if the possession and
acquisition of that property was in recognition and in furtherance of a pre-existing right of
maintenance, then the limited estate purported to be conferred bloomed into a full estate.
Mr. Bhangde drew our attention in this connection to the recitals in Ext. 79 that
Gaurishankar was aware that he had a responsibility and liability for maintenance towards
his wife. In para 3 of the will it is stated that only person for whom I should provide and
who is my sole heir is my wife Rambai G. Rajrani. Therefore, making provision for
Rajrani and others, the testator made a bequest which he did. The provisions of one-fourth
share in the house in favour of Rajrani was, therefore, by way of a provision for her
maintenance. Mr. Bhangde, therefore, submitted that Rajrani acquired this property and
was possessed of it after the coming into force of the Act. By the very force of the Act, he
submitted, as interpreted by the Supreme Court in Vaddebovina Tulasamma v. Sesha
Reddi (cit- supra) that estate became a full estate. He quoted copiously from the
observations of the Supreme Court in that judgment to which we shall presently come.

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52. We think, however, Mr. Bhangde is not right both on the basis of the observations of
the Supreme Court in Tulasamma's case (cit. supra), and the scheme and the provisions of
the Hindu Succession Act. We may firstly refer to the Explanation attached to section
14(1) of the Hindu Succession Act , which says what is meant by the word “property”.
The property which section 14(1) speaks of is the property possessed by a female, Hindu
which is to bloom into a full ownership. Now if we read the Explanation it will be clear
that it takes in its ambit all kinds of properties acquired and obtained in whatever manner,
movable and immovable “immediately before the commencement of this Act”. The
Explanation, therefore, in our opinion, applies and refers to such property under section
14(1), as possessed and held by a Hindu female immediately before the commencement of
the Act.
53. The word “possess” has now been held to mean not only the property which was in
actual physical possession, but also such property to which a female has a right. She must
have, therefore, a right to possess such a property. It is on the basis of this interpretation
that Mr. Bhangde sought to urge that the property includes not only the property which is
in actual physical possession, but the property to which a female had a right. He urged
section 14 did not apply merely to cases of such properties coming into existence
immediately before the commencement of the Act. Even after the commencement of the
Act where a Hindu female had a pre-existing right in respect of or against any property,
even if the property is so acquired by her after the commencement of the Act, if it comes to
her as a limited owner, she would become a full owner. Mr. Bhangde claimed, therefore,
that where a Hindu male dies leaving behind him a will and confers any property upon his
widow as a limited owner, section 14(1) would be attracted to such a case.
54. We think that if this interpretation were to be accepted, then the implication underlying
the provisions in section 8 and section 30 of that Act would be wiped away. Section 8
speaks of succession to a Hindu dying intestate. In the case of testate succession, the
provisions of Indian Succession Act apply as is laid down in section 30 of that act. If
therefore, a Hindu is capable of effecting a will and thereby altering the mode of
succession as laid down by the law of whatever property of which he can make a will and
dispose it of, so far as a widow was concerned, such a provision would be of no avail. Mr.
Bhangde pointed out that former sub-section (2) of section 30 has now been repealed and
the provisions in that behalf are carried to Section 29 of the Hindu Adoptions and
Maintenance Act. Former sub-section (2) of section 30 laid down that:
“For the removal of doubts it is hereby declared that nothing contained in sub-section (1)
shall affect the right to maintenance of any heir specified in the Schedule by reason only of
the fact that under a will or other testamentary disposition made by the deceased the heir
has been deprived of a share in the property to which he or she would have been entitled
under this Act if the deceased had died intestate.”
55. It was urged that even under the former sub-section (2) of section 30 where the widow
was deprived of her share in the property, which she would have got if the Hindu died
intestate, her right of maintenance would not have been affected.

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56. We do not see how that would make any difference in the position which was available
when Gaurishankar died. sub-section (2) of section 30 was not then available. Section 29
of the Hindu Adoptions and Maintenance Act would not also be attracted, as we think that
a provision had been made for the widow in the will itself for her maintenance. The will
recites that whatever cash and ornaments were possessed by the deceased upto the date of
the will, he had “already distributed them between his wife and 3 nephews”. He stated
“they are in possession of all my movables as I have distributed and they shall continue to
own and possess them as their own property”. If any cash or ornaments the deceased was
to remain in possession of and own during his lifetime were also provided under the will to
pass to his sole heir Rajrani. It is true that the extent of the cash and ornaments on the date
of the will and on the death of Gaurishankar or on the day he effected the will, that is, 3rd
January, 1949, has not come on record. But in view of these provisions it will not be
possible for us to say that no provision was made for his wife by Gaurishankar. Besides for
purposes of maintenance she had been given a portion of the house, though only during her
life-time.
57. Mr. Madkholkar for the respondents Nos. 2, 3, 5 and 6 submitted that section 14 of the
Succession Act in its nature and terms applies and affects situations in respect of properties
to which Hindu female has either a right or was possessed of at the time of the coming into
force of the Act. His contention was that the property which the Hindu female possessed
either actually and physically or to which she had a right as contemplated in section 14,
must be antecedent to the coming into force of the Act. Where property of the nature as
described in the Act is received by a Hindu female after the coming into force of the Act,
but not in fulfillment or pursuant to her right existing prior to 18th June, 1956 when the
Act came into force, to such a property, the Act does not apply. In the present case, he
urged that widow Rajrani received this property for the first time after the coming into
force of the Act. It was not given pursuant to any pre-existing right in the property, but for
the first time by a will and as a gift. He pointed out that under the Hindu Succession Act if
Gaurishankar had died intestate, deceased Rajrani was entitled to claim the property as an
heir. By the will the course of succession in law has been changed by the deceased and a
different device has been adopted. The law contemplates property being devised by a will
in the manner done by Gaurishankar. As long as Gaurishankar was able to maintain, and
was maintaining Rajrani during his lifetime, she has no right against the property. That
right, according to him, would not spring into existence even in the case of intestacy. It
would be available only in case the property of the deceased has gone to a legatee or
gratuitous transferee or a transferee with notice of a right to receive maintenance out of
that estate. He referred to section 30 of the Hindu Succession Act which he says would be
set at naught, if the interpretation sought to be placed by Mr. Bhangde is accepted.
58. Both Mr. Madkholkar and Mr. Bhangde relied upon portions of observations in the
judgment of the Supreme Court in Tulasamma's case (cit. supra). sub- section (2) of
section 14, it is now settled, is in the nature of a proviso to sub-section (1) of section 14.
Therefore, it has been construed in such a manner to confine it to a case where the property
is acquired by a female Hindu for the first time as a grant without any pre-existing right

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under a gift, will, instrument, decree or order .
59. In Seth Badri Prasad v. Srimati Kanso Devi† .. 1969 2 SCC 586 the Supreme Court had
also held that the provisions of sub-section (2) of section 14 came into operation where
acquisition is for the first time without there being any pre- existing right. Mr. Bhangde
relied upon the conclusion of the Supreme Court that a Hindu Widow's right to
maintenance is a pre- existing right. Therefore, according to him, when deceased
Gaurishankar made a provision for her and gave to her one-fourth of the property, he gave
it to her pursuant to, or in satisfaction of her pre-existing right to be maintained out of the
property. While Mr. Bhangde relied upon the observations of Mr. Justice Bhagwati in
Tulasamma's case (cit. supra) to the effect that “the right of the widow to be maintained is
of course not a jus in rem, since it does not give her any interest in the joint family
property but it is certainly jus ad rem, i.e a right against the joint family property.
Therefore, when specific property is allotted to the widow in lieu of her claim for
maintenance, the allotment would be in satisfaction of her jus ad rem, namely, the right to
be maintained out of the joint family property. It would not be a grant for the first time
without any pre-existing right in the widow.”
60. Mr. Bhangde also drew our attention to the second and fourth propositions deduced
from the analysis of Hindu Law by Mr. Justice Fazal Ali in para 27 of his judgment. These
propositions clearly say that a right of maintenance though “may not be a right to a
property”, it is certainly a right “against the property” and the husband has a personal
obligation to maintain his wife and if the family has a property, a female has a legal right
to be maintained from it. Where such a right is translated into a charge or agreement by
which it attaches to any property, it does not thereby confer a new title upon the female,
but merely “evidences or conforms the preexisting right.” That sub-section (2) of section
14 should be construed in such a manner as to impinge as little on the benevolent and
enlarging the provisions of sub- section (1) of section 14. The situations in section 14,
sub-section (2) are such by which a new title is given to the female for the first time and
has no application when the instrument merely seeks to confer, endorse, declare or
recognise a pre-existing right. These 3 conclusions which are relevant for the purposes of
this controversy alone need be considered.
61. If we apply the above tests and particularly the material test, namely, whether in the
present case giving of a part of the property as a limited owner to Rajrani by Gaurishankar
was in recognition or fulfillment and pursuant to a pre-existing right existing before 18th
June, 1956 in her, then it seems to us that the answer must be in the negative. It is material
to attract sub- section (1) of section 14 , in our opinion, that the right must exist in the
female prior to 18th June, 1956. It is only in cases the acquisition by her of the property is
in satisfaction, exercise or pursuant of that right that the property is acquired by her
whether before or after the Act came into force, that it becomes enlarged. The will speaks
from the time of the death of the testator. The right in this case of Rajrani to maintenance
by Gaurishankar was only a personal right upto the date of his death on 28th October,
1957. It had not crystallised or got itself attached to the property. If it were to be held that
the giving of a portion of the property to her with a restriction and only during her lifetime

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was in recognition of such a right and, therefore, a pre-existing right, then it would come in
conflict with section 30 of the Hindu Succession Act which permits testamentary
succession for Hindu female. The principle, we think, cannot be interpreted so widely, as
Mr. Bhangde wants us to do, so as to produce a conflict between sub-section (1) of section
14 and section 30, in cases arising after the Hindu Succession Act came into force, and the
disposition is made by a Hindu husband by means of a will of his property giving therein
to his wife a limited estate. After 18th June, 1956 we think the law on the point is clear.
The position of the Hindu woman of tutelage or subordination in the Hindu joint family
has ceased. Her rights to equality and economic independence hampered by the rules of
succession which prevailed formerly have been removed. In her husband's property on the
death of her husband who dies intestate, she has a right to a share by way of inheritance. If
he dies leaving a will, then we do not think that the section should be so interpreted as to
convert an estate which the husband did not want to be converted. If during the life-time of
Gaurishankar the property could have been sold by him to a stranger for valuable
consideration, merely because he had a wife, the notice of whose existence the transferee
had, the transferee would not have been required to maintain her from out of the property
purchased by him. To hold so would place that right of maintenance on a parity with a
covenant running with the land. The husband's property in such a situation, it would have
to be held, would continue to be burdened with an obligation to maintain the wife and even
the dependents, where no provision for them is made and the husband or father, as the case
may be, wills it away or sells it. In the case of a will the provisions of the Hindu Adoptions
and Maintenance Act provide for the property being reached. But if in other cases it cannot
be reached, even with the knowledge of the existence of a wife or other dependents, we do
not see how there would be a difference if the disposition is made by a will. Where no
provision is made for the maintenance of the widow, persons who receive the property
under a will may carry the burden of maintenance. But merely because by way of a
provision for maintenance a property is given to a widow during her lifetime, it is difficult
to think that the Legislature or the decision in Tulasamma's case (cit. supra) intended that
even in such cases the property so given to the widow would bloom into a full estate. A
provision by way of annuity would take away the claim of being maintained out of the
property by a female Hindu. In such a case even if the property is bequeathed under the
will, the legatees would not be liable for the claim of maintenance from out of the property
by the widow. Merely because the same result is achieved by giving a portion or parcel of
the property during the lifetime, even assuming for purposes of maintenance, we do not see
how the intention of the testator to create such a right, and he is permitted in law to do so,
can be defeated by recourse to provisions of sub- section (1) of section 14 of the Hindu
Succession Act. We think that the proper construction of the application for the provisions
of sub- section (1) of section 14 of the Hindu Succession Act is to find out whether the
property is given to her prior to the coming into force of the Succession Act, and a right in
the widow or female had sprung into existence prior to that date against that property.
Where such is the case and property is received subsequently satisfaction of that right or
against that right, then sub- section (1) of section 14 of the Hindu Succession Act would
come into operation. In other cases subsequent to 18th June, 1956, sub- section (2) of

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section 14 of the Hindu Succession Act must have application.
62. Since the appeal fails and has to be dismissed, we see no reason to depart from the
normal rule of costs which follow event. In the result, the appeal is dismissed with costs.
Appeal dismissed.

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