Saturday, April 30, 2011

Urviben Chiragbhai Sheth Vs. Vijaybhai Shambhubhai Joranputra & Ors.

Motor Vehicles Act, 1988-Compensation Enhanced It is an accepted principle that compensation may be so assessed that the interest accruing therefrom will be sufficient for the maintenance of the family of the victim and the concept of compensation is wider than mere damages.  

Supreme Court of India
Civil Appeal NO.2011 (Arising out of Special Leave Petition (C) No.896 of 2006)
Hon'ble Judge(s): G.S. SINGHVI  and  ASOK KUMAR GANGULY
Date of Judgment: April 26, 2011
Urviben Chiragbhai Sheth Vs. Vijaybhai Shambhubhai Joranputra & Ors.
 
O R D E R

GANGULY, J.

1. Delay condoned.

2. Leave granted.

3. On 18.5.1990, the appellant and others were going in a Fiat car (No. GGG 792), owned by the second respondent, from Surat to Ubhrat. The said car was driven by the first respondent, who lost control of the car and dashed the car with full force against a milestone, after which the car turned turtle thrice. As a result, the occupants of the car sustained serious injuries.

4. The appellant filed a claim petition before the Motor Accident Claims Tribunal (MACT) claiming compensation of Rs.15,00,000/-. At the time of the accident, she was aged 30 years and she claimed to be earning Rs.1,500/- to Rs.1,600/- per month from running a business in the name of Contessa Beauty Parlour at Ahmedabad.

5. Before the MACT it was established that the first respondent was absolutely liable for the accident in view of his careless, rash and negligent driving. Thus, the first respondent (driver), second respondent (owner of the car) and the third respondent (insurance company with which the car was insured) were held jointly and severally liable to pay compensation to the appellant. In the accident, the spinal cord of the appellant was damaged, as a result of which she was unable to walk and was bedridden. In computing the compensation payable to the appellant, the MACT, by order dated 23.3.2001, reached a finding that the compensation had been computed with the consent of the parties.

6. MACT awarded Rs.50,000/- towards pain and suffering, Rs.3,50,000/- towards treatment charges, Rs.10,000/- towards attendant charges and Rs.5,000/- towards nutritious food. The appellant had contended that she was running a beauty parlour, but no reliable evidence was produced to substantiate the same. Thus, appellant being a housewife, monthly income was assessed at Rs.1000/- and applying a multiplier of 16, the future loss of income was assessed at Rs.1,92,000/- (Rs.1000 X 12 X 16). Thus, the appellant was held entitled to total compensation of Rs.6,07,000/- with interest at the rate of 9%.

7. Aggrieved by the compensation awarded by the MACT, the appellant appealed to the High Court for enhancement of compensation. The High Court, vide order dated 6.7.2005, dismissed the appeal on the following ground: "Through these appeals judgment of the MACT Valsad at Navsari dated 23.3.2001 is assailed on the ground that proper compensation has not been awarded, therefore, it be enhanced. However, after hearing the counsel for both the sides, it is found that the compensation has been settled as per the consent of the counsel for the parties. This fact is recorded in para 10 of the award. That being so, interference is not called for. Shri Parikh, learned counsel for the appellants want to place on record affidavit of Shri K.Z. Rifai, Advocate dated August 5, 2002 to point out that neither any pursis in writing was passed to the Claims Tribunal nor while arguing, such consent was given, fact appears to have been recorded erroneously. Placement of affidavit at this stage is after thought, therefore, declined. In such case no such agreement was there with regard to the amount of compensation as mentioned in the judgment, averment to that effect ought to have found place in the memorandum of appeal dated 20th June, 2001. Judgment record is conclusive. Neither lawyer nor litigant can claim to contradict it, except before the judge himself but nowhere else. Court is bound to accept the statement of the judge recorded in the judgment as what transpired in the court and cannot allow statement of the Judge to be contradicted by statement by affidavit and other evidence (See: Daman Singh and others etc. v. State of Punjab and others (AIR 1985 SC 973). Accordingly, claim for enhancement cannot be considered in light of the agreement by counsel for parties before the Claims Tribunal."

8. This appeal is directed against the aforesaid judgment of the High Court.

9. The appellant contends that there was no consent before the MACT, and the same was wrongly recorded by the Tribunal. However, we notice that no application appears to have been made before the Tribunal to rectify the error, if there was one. Instead, the parties filed an appeal before the High Court being aggrieved by the compensation awarded by the Tribunal.

10. This court finds that in the impugned judgment, the High Court has taken a rather narrow view of the entire controversy. In its rather cryptic judgment, the High Court refused to take into consideration the affidavit filed by Sri K.Z. Rifai, the learned advocate who appeared for the appellant before the MACT. The said affidavit is on record. A perusal of the said affidavit which was filed before the High Court shows that the advocate who appeared on behalf of the appellant before the MACT averred: "2)......The learned Tribunal in paragraph 10 of the judgment has recorded that both the parties agree qua the amount that was to be paid to the claimant. I say that neither any pursis in writing was passed to the Tribunal to such effect nor while arguing was any such consent given. The said fact appears to have been recorded erroneously."

11. The High Court ignored the said stand taken before it on the ground that such an affidavit being placed before the High Court was an afterthought and no ground had been taken in the memorandum of appeal dated 21.6.2001 to that effect.

12. The other ground which weighed with the High Court is that statement recorded in the judgment of the Court cannot be contradicted by any affidavit or any other evidence and in coming to said conclusion the High Court relied on the judgment of this Court in Daman Singh and others etc. v. State of Punjab and others, reported in AIR 1985 SC 973.

13. This Court fails to appreciate the aforesaid stand of the High Court for various reasons which are discussed hereunder.

14. From a perusal of the judgment of the Tribunal, it does not appear that it was based solely on the consent of the parties. Apart from consent, if any, of the parties, the MACT also held that the amount of compensation awarded by it "appears to be proper, just and reasonable taking into consideration the aforesaid evidence."

15. In fact, the exact finding of the MACT is set out below: "......With consent of both the parties, it has been decided to make payment of the under mentioned amount which appears to be proper, just and reasonable taking into consideration the aforesaid evidence."

16. Therefore, it appears to be a mixed bag. MACT curiously held that in the facts of the case, the amount granted by it is just proper and reasonable and also held that the same is based on the consent of the parties. The High Court, as the last court of fact and law should have examined whether the Tribunal's finding that the compensation granted is proper, just and reasonable in the facts of the case. The High Court has admittedly failed to do so.

17. Coming to the question of so-called consent of the parties, the approach of the High Court also cannot be appreciated. It is true that while acting as a Claims Tribunal, its proceedings are summary in nature but in exercising its summary jurisdiction the Tribunal must follow principles of justice, equity and good conscience and must be aware that its summary enquiry is in connection with a legislation which is meant for social welfare. Therefore, when a representation is made before the Tribunal that a claim of Rs.15 lacs by way of consent is reduced to Rs.6 lacs and odd, the Tribunal must insist on production of some material either, an affidavit of the claimant or the statement of the claimant before the MACT in support of such lowering down of claim. The MACT cannot accept the said representation on the mere oral statement of counsel since such settlement is purely a question of fact. In fact no leave was obtained from the Tribunal to enter into a compromise between the parties in respect of the settlement.

18. In the absence of all these materials, when an affidavit was filed by the learned advocate who appeared before the Tribunal, contending that no such settlement was ever entered into by the consent of parties, the High Court fell into an error by discarding the same only on the ground that this was filed belatedly before the High Court and is an afterthought.

19. It may be true that in the grounds of appeal before the High Court, this should have been mentioned, but on a mere defect of pleading of the parties, justice cannot be denied if in the facts of the case, the stand taken on the affidavit of the advocate appears probable.

20. To our mind, the stand taken in the affidavit of the advocate referred to above appears probable specially when there is nothing on record to show that the appellant ever filed any petition or affidavit for settlement or compromise before the MACT.

21. The reliance placed by the High Court on the judgment of this court in the case of Daman Singh (supra) is rather misconceived. In the said case, what this court held was when several points were raised in a writ petition before the High Court, and argument is confined to some grounds or points, as other grounds are considered by the counsel unworthy of canvassing, thereafter the counsel cannot make a grievance that other grounds were not considered by the court (see para 13).

22. The situation in this case is not similar to the one pointed out in Daman Singh (supra).

23. Here the High Court relied on the principle of sanctity of a record entered by a Court and held that what is recited in the Court record is sacrosanct. The High Court, in the process, fell into an error by equating the record of proceedings in a Tribunal with proceedings in a court of record. Under our hierarchy of Courts, a High Court (under Article 215) and the Supreme Court (under Article 129) are recognized as Courts of Record. A Motor Accidents Claims Tribunal constituted under the Motor Vehicles Act, 1988 is a Civil Court of limited jurisdiction, and is certainly not a Court of Record. The infallibility of its formal record is one of the earliest marks of a Court of Record, but it has developed other characteristics too (See A History of English Law by W.S. Holdsworth, Vol 5, p. 158).

24. In Reg v. Aaron Mellor, reported in (1858) 7 Cox's Criminal Law Cases 454, it was held "We must consider the statement of the learned judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity."

25. This has been followed by this Court in State of Maharashtra v. Ramdas Srinivas Nayak & Anr., reported in AIR 1982 SC 1249.

26. Therefore, the principle of sanctity of recitals in Court proceedings is available to a Court of Record. This principle cannot be stretched to the proceedings of a tribunal. Unfortunately the High Court failed to appreciate this.

27. Now the question which arises is whether the matter should be remanded by this Court? Having regard to the materials on record, this Court is of the opinion that the matter should not be remanded, keeping in mind the period which has elapsed in between since the accident took place in 1990, and the fact that the appellant had been bedridden since then.

28. Admitted evidence about her medical disabilities is that she has 100% disability which is permanent in nature with no sign of recovery.

29. It is of course true that the appellant's case that she was running a beauty parlour prior to the accident could not be proved, specially her income from the said parlour has not been proved. The existence of the beauty parlour is however not in dispute.

30. Assuming the appellant is not running the parlour, the fact remains that she has two children and her husband died prior to the incident. Therefore, the dependence of the children and the running of the family is to be shouldered by her even though she is infirm and bedridden. She also needs someone to help her in her daily life. She has to have recurring medical expenses.

31. Just because she is a homemaker is no reason why the courts should be miserly in fixing compensation for her. A Bench of this Court in Arun Kumar Agrarwal & Anr. v. National Insurance Co. Ltd. & Ors., reported in 2010 (9) SCC 218, had occasion to consider this question and held that the work of homemakers and housewives should be properly assessed and in making assessment of compensation payable to them, they should not suffer from a gender bias.

32. It is an accepted principle that compensation may be so assessed that the interest accruing therefrom will be sufficient for the maintenance of the family of the victim and the concept of compensation is wider than mere damages.

33. Considering all this, we grant compensation of Rs.15 lacs (Rupees Fifteen Lacs) with interest at the rate of 8% on the enhanced compensation from the date of filing the claim petition before MACT till date of realization.

34. Compensation on the aforesaid basis must be paid to the concerned MACT by the respondents within six weeks by a demand draft. Thereupon the MACT shall forthwith deposit the same in the bank account of the appellant.

35. The appeal is thus allowed.

36. No order as to costs.

.......................J. (G.S. SINGHVI)

.......................J. (ASOK KUMAR GANGULY)

New Delhi

April 26, 2011

Tuesday, April 19, 2011

Pushpa @ Leela & Ors. Vs. Shakuntala & Ors.


Motor Vehicles Act, 1988 — section 50 — Transfer of ownership - Payment of compensation - Liability of - Accident caused by the truck - Truck purchased by another person but name of the earlier owner continued in the Registration Certificate - whether the liability to pay the compensation amount as determined by the Motor Accident Claims Tribunal was of the purchaser of the vehicle alone or whether the liability of the recorded owner of the vehicle was coextensive and from the recorded owner it would pass on to the insurer of the vehicle — the fact not disputed that notwithstanding the sale of the vehicle neither the transferor nor the transferee took any step for the change of the name of the owner in the certificate of registration of the vehicle, therefore, in view of the omission, the transferor must be deemed to continue as the owner of the vehicle for the purposes of the Act — held that the transferor, whose name continued in the records of the registering authority as the owner of the truck was equally liable for payment of the compensation amount. Further, since an insurance policy in respect of the truck was taken out in his name he was indemnified and the claim will be shifted to the insurer, hence, the compensation amount is equally realisable from respondent no.3- Insurance Co. — appeal allowed — no costs.

Supreme Court of India
Civil Appeal NO.6924 of 2005
Hon'ble Judge(s): Aftab Alam and  R.M. Lodha
Date of Judgment: January 12, 2011
Pushpa @ Leela & Ors. Vs. Shakuntala & Ors.
O R D E R

AFTAB ALAM, J.
1. Whether in the fact and circumstances of the case the liability to pay the compensation amount as determined by the Motor Accident Claims Tribunal was of the purchaser of the vehicle alone or whether the liability of the recorded owner of the vehicle was coextensive and from the recorded owner it would pass on to the insurer of the vehicle? This is the short question that arises for consideration in this appeal by special leave filed at the instance of the claimants.
2. The appellants, claimants before the Claims Tribunal are the heirs and legal representatives of one Prem Chand who died in a motor accident on May 7, 1994. Prem Chand had hired the truck bearing registration no.HPA-1435 for carrying some materials and food articles for a wedding in the family. He got the materials to be transported loaded on the truck by a labourer, Nikku Ram whom he had engaged for that purpose and took him along with him on the truck for unloading the consignment at the destination. According to the claimants, the driver Roop Ram was driving the truck rashly and at a very high speed. As a result, the truck met with an accident and at about 6.30-7pm while running on Dhararu Dhar Road near Bangora, Tehsil Arki, District Solan, in the State of Himachal Pradesh, it went off the road and overturned leading to the death of all the three persons, Including the driver.
3. The truck had a little history of its own that actually gives rise to the question set out at the beginning of the judgment. It earlier belonged to one Jitender Gupta who was its registered owner. Jitender Gupta sold the truck to Salig Ram on February 2, 1993 and gave its possession to the transferee. On the date of the sale, the truck was covered by an insurance policy taken out by Jitender Gupta from New India Assurance Company Ltd. The insurance policy was issued on February 25, 1992 and it was due to expire on February24, 1993. Despite the sale of the vehicle by Jitender Gupta to Salig Ram, the change of ownership of the vehicle was not entered in its certificate of registration. After the earlier policy issued by New India Assurance Company Ltd. expired on February 24, 1993, there was a period when the truck was not covered by any insurance policy. Later on, however, Salig Ram took out an insurance policy for the truck from Oriental Insurance Company Ltd. bearing policy no.31/94/00628. The policy was taken in the name of Jitender Gupta, the earlier owner of the truck, and it was valid from December 8, 1993 to December 7, 1994. The accident in which Prem Chandand Nikku Ram lost their lives took place on May 7, 1994, i.e. during the period when the policy taken out from the Oriental Insurance Company Ltd. was subsisting and valid.
4. The heirs and legal representatives of both the deceased, Prem Chandand Nikku Ram filed separate claim applications before the Motor Accident Claims Tribunal, Solan, Himachal Pradesh. In both the claim applications Salig Ram, the transferee was impleaded as respondent no.1, Jitender Gupta, the original owner of the truck as respondent no.2 and Oriental Insurance Company Ltd. as respondent no.3. The two claim applications, MAC petition no.62-NS/2 of 1994 filed by the heirs and legal representatives of the deceased Prem Chand (appellants in this appeal) and MAC petitionno.63-NS/2 of 1994 filed by the heirs and legal representatives of the deceased Nikku Ram (who pursued the matter only up to the High Court and who have not been able to come to this Court in appeal) were consolidated and heard together. All the three respondents appeared before the Tribunal and filed their separate replies resisting the claims of the two claimants. But none of the respondents led any evidences before the Claims Tribunal.
5. The Claims Tribunal, on the basis of the ex parte evidence adduced onbehalf of the claimants, found and held that both Prem Chand and Nikku Ram died on May 7, 1994, in the accident caused by truck no.HPA-1435which was being driven by its driver Roop Ram in a rash and negligent manner. It also found that Prem Chand and Nikku Ram were not travelling in the ill-fated truck as un authorised or gratuitous passengers. The ClaimsTribunal further held that the heirs and legal representatives of Prem Chand were entitled to a sum of Rs.5,04,000/- for the loss of dependency andRs.10,000/- for loss of consortium and Rs.2000/- as cremation charges. The heirs and legal representatives of Prem Chand were, thus, held entitled to a total compensation of Rs.5,16,000/-. In case of the heirs and legal representatives of the deceased Nikku Ram, the Claims Tribunal held that they were entitled to a total compensation of Rs.2,42,000/-.
6. Coming next to the question of liability of payment, the issue that is most crucial for the claimants from the practical point of view, the Claims Tribunal held that no liability for payment of compensation to the claimants would attach to Jitender Gupta since he had ceased to be the owner of the vehicle after its sale to Salig Ram on February 2, 1993. It further held that even though an insurance policy for the truck was taken out from Oriental Insurance Company Ltd., the policy was in the name of Jitender Gupta, who was no longer the owner of the truck on the date the policy was taken out and there was no privity of contract between Salig Ram, the owner of the truck and the insurance company. Hence, the insurance policy was of no use for indemnifying Salig Ram, the owner of the truck. In short, Salig Ramalone was liable for payment of the compensation amount to the two claimants. In this connection, the Claims Tribunal in paragraph 46 of its judgment held and observed as followed: "Because the subsequent policy was taken by respondent no.2 effective from 08.12.1993 to 07.12.1994 when he was not owner having no right, title or interest to obtain the policy. The owner at that time was respondent no.1 who never entered into any privy of contract with respondent no.3 to cover third party risks qua the vehicle."
7. Against the judgment and award made by the Claims Tribunal the claimants filed appeals before the Himachal Pradesh High Court being FAOno.459 of 2000 (by the heirs and legal representatives of Prem Chand) and FAO no.77 of 1999 (by the heirs and legal representatives of Nikku Ram).Both the appeals were dismissed by the High Court by a common judgment land order dated July 15, 2004.
8. We have examined the judgments passed by the Claims Tribunal and the High Court and we find that both the Tribunal and the High Court addressed the question of the liability of the recorded owner of the vehicle on the basis of a provision that has no relevance to the issue. Both the Tribunal and the High Court discussed at length the provision of section 157of the Motor Vehicles Act, 1988 ("the Act" for short) that deals with" Transfer of Certificate of Insurance". So far as that section is concerned the Tribunal and the High Court were right in holding that section 157 of the Act would apply only to the earlier policy (being that of New India Assurance Company Ltd.) taken out by Jitender Gupta during the validity period of which the truck was sold by him to Salig Ram and it can have no application to the second policy taken out from Oriental Insurance Company Ltd. in the name of Jitender Gupta after the sale of the truck. But as stated earlier, section 157 has no application in the facts of this case.
9. The question of the liability of the recorded owner of the vehicle has to be examined under different provisions of the Act. Section 2(30) of the Act defines "owner" in the following terms: "2(30) "owner" means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement;" (Emphasis added)
10. Then, section 50 of the Act lays down the procedure for transfer of ownership. It is a long section and insofar as relevant it is reproduced below:
"50. Transfer of ownership.
(1) Where the ownership of any motor vehicle registered under this Chapter is transferred,-
(a) the transferor shall,-
(i) in the case of a vehicle registered within the same State, within fourteen days of the transfer, report the fact of transfer, in such form with such documents and in such manner, as may be prescribed by the Central Government to the registering authority within whose jurisdiction the transfer is to be effected and shall simultaneously send a copy of the said report to the transferee; and
(ii) xxxxxxx
(b) the transferee shall, within thirty days of the transfer, report the transfer to the registering authority within whose jurisdiction he has the residence or place of 8 business where the vehicle is normally kept, as the case may be, and shall forward the certificate of registration to that registering authority together with the prescribed fee and a copy of the report received by him from the transferor in order that particulars of the transfer of ownership may be entered in the certificate of registration.
(2) xxxxxxx
(3) xxxxxxx
(4) xxxxxxx
(5) xxxxxxx
(6) On receipt of a report under sub-section (1), or an application under subsection (2), the registering authority may cause the transfer of ownership to be entered in the certificate of registration. (7) A registering authority making any such entry shall communicate the transfer of ownership to the transferor and to the original registering authority, if it is not the original registering authority."
11. It is undeniable that notwithstanding the sale of the vehicle neither the transferor Jitender Gupta nor the transferee Salig Ram took any step for the change of the name of the owner in the certificate of registration of the vehicle. In view of this omission Jitender Gupta must be deemed to continue as the owner of the vehicle for the purposes of the Act, even though under the civil law he ceased to be its owner after its sale on February 2, 1993.
12. The question of the liability of the recorded owner of a vehicle after its sale to another person was considered by this Court in Dr. T.V. Jose vs. Chacko P.M., (2001) 8 SCC 748. In paragraphs 9 and 10 of the decision, the Court observed and held as follows:
"9. Mr. Iyer appearing for the Appellant submitted that the High Court was wrong in ignoring the oral evidence on record. He submitted that the oral evidence clearly showed that the Appellant was not the owner of the car on the date of the accident. Mr. Iyer submitted that merely because the name had not been changed in the records of R.T.O. did not mean that the ownership of the vehicle had not been transferred. Mr. Iyer submitted that the real owner of the car was Mr. Roy Thomas. Mr. Iyer submitted that Mr. Roy Thomas had been made party-Respondent No.9 to these Appeals. He pointed out that an Advocate had filed appearance on behalf of Mr. Roy Thomas but had then applied for and was permitted to withdraw the appearance. He pointed out that Mr. Roy Thomas had been duly served and a public notice had also been issued. He pointed out that Mr. Roy Thomas had chosen not to appear in these Appeals. He submitted that the liability, if any, was of Mr. Roy Thomas.
We agree with Mr. Iyer that the High Court was not right in holding that the Appellant continued to be the owner as the name had not been changed in the records of R.T.O. There can be transfer of title by payment of consideration and delivery of the car. The evidence on record shows that ownership of the car had been transferred. However the Appellant still continued to remain liable to third parties as his name continued in the records of R.T.O. as the owner. The Appellant could not escape that liability by merely joining Mr. Roy Thomas in these Appeals. Mr. Roy Thomas was not a party either before MACT or the High Court. In these Appeals we cannot and will not go into the question of inter se 10 liability between the Appellant and Mr. Roy Thomas. It will be for the Appellant to adopt appropriate proceedings against Mr. Roy Thomas if, in law, he is entitled to do so." (Emphasis added)
13. Again, in P.P. Mohammed vs. K. Rajappan &Ors., (2008) 17 SCC624, this Court examined the same issue under somewhat similar set of facts as in the present case. In paragraph 4 of the decision, this Court observed and held as follows: "4. These appeals are filed by the appellants. The insurance company has chosen not to file any appeal. The question before this Court is whether by reason of the fact that the vehicle has been transferred to Respondent 4 and thereafter to Respondent 5, the appellant got absolved from liability to the third person who was injured. This question has been answered by this Court in T.V. Jose (Dr.) v. Chacko P.M. wherein it is held that even though in law there would be a transfer of ownership of the vehicle, that, by itself, would not absolve the party, in whose name the vehicle stands in RTO records, from liability to a third person. We are in agreement with the view expressed therein. Merely because the vehicle was transferred does not mean that the appellant stands absolved of his liability to a third person. So long as his name continues in RTO records, he remains liable to a third person." (Emphasis added)
14. The decision in Dr. T.V. Jose was rendered under the Motor Vehicles Act, 1939. But having regard to the provisions of section 2(30) and section50 of the Act, as noted above, the ratio of the decision shall apply with equal force to the facts of the case arising under the 1988 Act. On the basis of these decisions, the inescapable conclusion is that Jitender Gupta, whose name continued in the records of the registering authority as the owner of the truck was equally liable for payment of the compensation amount. Further, since an insurance policy in respect of the truck was taken out in his name he was indemnified and the claim will be shifted to the insurer, Oriental Insurance Company Ltd.
15. Learned counsel for the insurance company submitted that even though the registered owner of the vehicle was Jitender Gupta, after the sale of the truck he had no control over it and the possession and control of the truck were in the hands of the transferee, Salig Ram. No liability can, therefore, be fastened on Jitender Gupta, the transferor of the truck. In support of this submission he relied upon a decision of this Court in National Insurance Company Ltd. vs. Deepa Devi &Ors., (2008) 1 SCC414. The facts of the case in Deepa Devi are entirely different. In that case the vehicle was requisitioned by the District Magistrate in exercise of the powers conferred upon him under the Representation of the People Act,1951. In that circumstance, this Court observed that the owner of the vehicle cannot refuse to abide by the order of requisition of the vehicle by the Deputy Commissioner. While the vehicle remained under requisition, the owner did not exercise any control over it: the driver might still be the employee of the owner of the vehicle but he had to drive the vehicle according to the direction of the officer of the State, in whose charge the vehicle was given. Save and except the legal ownership, the registered owner of the vehicle had lost all control over the vehicle. The decision in Deepa Devi was rendered on the special facts of that case and it has no application to the facts of the case in hand.
16. In light of the discussion made above it is held that the compensation amount is equally realisable from respondent no.3, Oriental Insurance Company Ltd. and it is directed to make full payment of the compensation amount as determined by the Claims Tribunal to the appellants within two months from the date of this judgment.
17. Even though the claimants in the other case, the heirs and legal representatives of Nikku Ram, have not come to this Court, we consider it appropriate to give the same direction in respect of their case. There is absolutely no difference in the case of Nikku Ram and Prem Chand. Nikku Ram, being a daily wage earner was given a compensation of Rs.2,42,000/-.It is quite possible that his heirs and legal representatives were unable to come to this Court simply for want of sufficient means. The insurance company must pay the compensation amount determined in case of Nikku Ram to his heirs and legal representatives in case the amount has so far not been realised from Salig Ram as directed by the Claims Tribunal.18. The appeal is allowed but with no order as to costs.
....................................J. (AFTAB ALAM)
....................................J. (R.M. LODHA)
New Delhi
January 12, 2011

Sunday, April 17, 2011

Commissioner of Police and Ors Vs. Sandeep Kumar

Service Laws –  cancellation- Cancellation of on the ground that the respondent had concealed the fact of his involvement in the criminal case under sections 325/34 IPC and had made a wrong statement in his application form — the respondent filed writ petition against cancellation of his candidature — allowed — appeal — the Supreme Court opined that youth often commit indiscretions, which are often condoned. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view be taken in the matter — appeal dismissed — no costs.

Supreme Court of India
Civil Appeal NO.1430 OF 2007
Hon'ble Judge(s): MARKANDEY KATJU, GYAN SUDHA MISRA
Date of Judgment: MARCH 17, 2011
Commissioner of Police and Ors Vs. Sandeep Kumar
O R D E R


Heard learned counsel for the parties. This Appeal has been filed against the impugned judgment of the High Court of Delhi dated 31.07.2006. The facts have been given in the impugned judgment and hence we are not repeating the same here, except wherever necessary. The respondent herein-Sandeep Kumar applied for the post of Head Constable (Ministerial) in 1999. In the application form it was printed : "12(a) Have you ever been arrested, prosecuted kept under detention or bound down/fined, convicted by a court of law for any offence debarred/disqualified by any Public Service Commission from appearing at its examination/selection or debarred from any Examination, rusticated by any university or any other education authority/Institution."Against that column the respondent wrote : 'No' It is alleged that this is a false statement made by the respondent because he and some of his family members were involved in a criminal case being FIR 362 under Section 325/34 IPC.

This case was admittedly compromised on 18.01.1998 and the respondent and his family members were acquitted on 18.01.1998. In response to the advertisement issued in January 1999 for filing up of certain posts of Head Constables (Ministerial), the respondent applied on 24.02.1999 but did not mention in his application form that he was involved in the aforesaid criminal case. The respondent qualified in all the tests for selection to the post of temporary Head Constable (Ministerial). On 03.04.2001 he filled the attestation form wherein for the first time he disclosed that he had been involved in a criminal case with his tenant which, later on, had been compromised in 1998 and he had been acquitted. On 02.08.2001 a show cause notice was issued to him asking the respondent to show cause why his candidature for the post should not be cancelled because he had concealed the fact of his involvement in the aforesaid criminal case and had made a wrong statement in his application form. The respondent submitted his reply on 17.08.2001 and an additional reply but the authorities were not satisfied with the same and on 29.05.2003 cancelled his candidature.

The respondent filed a petition before the Central Administrative Tribunal which was dismissed on 13.02.2004. Against that order the respondent filed a writ petition which has been allowed by the Delhi High Court and hence this appeal. The learned counsel for the appellants has submitted that the respondent should have disclosed the fact of his involvement in the criminal case even if he had later been acquitted. Hence, it was submitted that his candidature was rightly cancelled. We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter. When the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often been condoned. After all, youth will be youth.

They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives. In this connection, we may refer to the character 'Jean Valjean' in Victor Hugo's novel 'Les Miserables', in which for committing a minor offence of stealing a loaf of bread :3: for his hungry family Jean Valjean was branded as a thief for his whole life. The modern approach should be to reform a person instead of branding him as a criminal all his life. We may also here refer to the case of Welsh students mentioned by Lord Denning in his book 'Due Process of Law'. It appears that some students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes were being broadcast in the English language and not in Welsh. Then came up to London and invaded the High Court.

They were found guilty of contempt of court and sentenced to prison for three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal, Lord Denning observed :- "I come now to Mr. Watkin Powell's third point. He says that the sentences were excessive. I do not think they were excessive, at the time they were given and in the circumstances then existing. Here was a deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the judge to show -- and to show to all students everywhere - that this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they believe. Let them make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike at the course of justice in this land - and I speak both for England and Wales - they strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law and not strike it down. But now what is to be done? The law has been vindicated by the sentences which the judge passed on Wednesday of last week. He has shown that law and order must be maintained, and will be maintained. But on this appeal, things are changed.

These students here no longer defy the law. They have appealed to this court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them inside it any longer. These young people are no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary, there was much that we should applaud. They wish to do all they can to preserve the Welsh language. Well may they be proud of it. It is the language of the bards - of the poets and the singers - more melodious by far than our rough English tongue. On high authority, it should be equal in Wales with English. They have done wrong - very wrong - in going to the extreme they did. But, that having been shown, I think we can, and should, show mercy on them.

We should permit them to go back to their studies, to their parents and continue the good course which they have so wrongly disturbed." [ Vide : Morris Vs. Crown Office, (1970) 2 Q.B. 114 ] In our opinion, we should display the same wisdom as displayed by Lord Denning. As already observed above, youth often commit indiscretions, which are often condoned. It is true that in the application form the respondent did not mention that he was involved in a criminal case under Section 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter. For the reasons above given, this Appeal has no force and it is dismissed. No costs.

......................J. (MARKANDEY KATJU)

......................J. (GYAN SUDHA MISRA)

NEW DELHI;

MARCH 17, 2011

Complete Judgement

Tuesday, April 12, 2011

Siddamurthy Jayarami Reddy (D) by LRs. Vs. Godi Jaya Rami Reddy & ANR

Hindu Succession Act, 1956 - The plea, of the appellants, that Rami Reddy's family from the second wife and the testator's family was a composite family and the properties were joint family properties of the plaintiffs and the defendants, has not been accepted by the trial court as well as High Court. We have no justifiable reason to take a different view on this aspect. Importantly, Rami Reddy during his life time - although he survived for about 19 years after the death of the testator - never claimed any legacy under the subject will. All in all, on the construction of the will and, in the circumstances, it must be held, and we hold that no legacy came to be vested in Rami Reddy and he did not become entitled to any interest in the estate of the testator and, therefore, the plaintiffs did not acquire any right, title or interest in the properties of Bijivemula Subba Reddy. In view of the above, the challenge to the findings of the High Court on the plea of adverse possession set up by the defendants and the genuineness of the will executed by Pitchamma in 1953 pale into significance and needs no consideration.

Supreme Court of India

Civil Appeal NO.916 OF 2005
Hon'ble Judge(s): R.M. Lodha, Aftab Alam
Date of Judgment: 1 April, 2011
Siddamurthy Jayarami Reddy (D) by LRs. Vs. Godi Jaya Rami Reddy & ANR

O R D E R

R.M. Lodha, J.

1. The controversy in this appeal, by special leave, is concerned with will dated May 21, 1920 executed by Bijivemula Subba Reddy resident of Chennavaran, village Kattera Gandla, Badwel Taluq, Cuddapah District. The question is one of construction upon which the two courts - High Court and trial court - are not in accord and, have taken divergent view.

2. At the time of execution of the will, Bijivemula Subba Reddy - a Hindu - was aged about 75 years. He had his wife Subbamma, daughter Pitchamma, son-in-law Rami Reddy, widowed sister Chennamma, widowed daughter-in-law and granddaughter Lakshumamma living. His only son Sesa Reddy had died in 1917. The testator was man of sufficient wealth. He had landed property (wet and dry lands and wells) at various places, namely, in Katteragandla, Rampadu, Varikuntla and Thiruvengala Puram. He also owned few houses and plots of lands at different places. He had moveable properties as well in the form of bonds, securities and promissory notes. The will recites, as indeed is the undisputed fact, that the testator, except one house situate at Kotha Laxmipally village in which he had 1/3rd share, was the absolute owner of the properties specified therein.

3. Pitchamma had no child although she had married 20 years before the execution of the will. The testator desired that his daughter Pitchamma adopted a son with the consent of her husband and his granddaughter Lakshumamma got married to the adopted son of his daughter Pitchamma.

4. The will is written in vernacular (Telugu). The correctness of its English translation annexed with the appeal was disputed by the respondents. The parties were then directed to submit agreed translation of the will which they did and that reads as follows: "I, Bijivemula Subba Reddy son of Balachennu, resident of Chennavaran village Kattera gandla, Badwel Taluq Cuddapah District, cultivation, this the 21st day of May, 1920, with sound mind, free will executing the will. Now I am aged about 75 years. My wife Subbamma is living. I had one son by name Sesa Reddy. He died at the age of 24 years, about three years back. He had one wife and one daughter aged about 6 years by name Lakshumma. I have one daughter by name Pitchamma. I have given in marriage to one Rami Reddy adopted son of Siddamurthi Duggi Reddy, Papireddypally village Rampadu Majira., though she married about 20 years back, but she has no issues.

She intended to take a boy in adoption with the consent of her husband. As I am old I could not [sic] able to run my family. After the death of my son, since 15 years, the above persons are looking after my family and my welfare. I have also one widow sister by name Chennamma. She is living with me since 30 years. She is also helping me in all aspects. I intend to give my grand daughter Lakshumamma to the proposed adopted son of my daughter Pitchamma. In the said event, I intend to give all my belongings, moveable and immovable properties to the said Lachumma and the adopted son of my daughter Pitchamma. But my daughter and her husband so far did not take any steps for getting a boy in adoption.

Now as I am sick and suffering from fever and other ailments, I am doubting whether I can perform the above said acts during my life time. I own lands in Katteragandla Village, Rampadu village, Varikuntla village, and Thiruvengala puram village, both wet and dry lands and also wells. I also own a Midde in Majira. I have one Beeruva in Pancha of my house. I also have household articles, kallamettelu. I also have lands in Papireddypally village of Rampadu Majira, two plots and I have absolute rights in one of the same. I also have one house in Kotha Laxmipally village, of Kathera gandla majira and in that I have 1/3rd share. I also have bonds and securities and promissory notes transactions. As I have the above said moveable and immoveable properties and as I am having absolute rights over the same, none others have any rights whatsoever in the above said properties. Therefore, I intend to execute the will and the same shall come into force after my demise. The following are the terms of the will.

a. After my demise, my grand daughter, Lachumamma who is the daughter of my son shall have absolute rights in my entire properties.

b. As my grand daughter is minor, till she attains the age of majority and attains power to manage the above said properties, I hereby appoint my son in law Siddamurthy ramireddy as executor of the will till then.

c. According to the will of my grand daughter Laxmamma, in case to marry the adopted son of my daughter, it shall be performed.

d. As I am having my wife Subbamma, Widow daughter in law, Pitchamma, and my widow sister Chennamma, the present guardian, Ramireddy and my grand daughter Laxmumma, after attaining majority, shall look after the above persons. If they do not satisfied (sic) with the above arrangements, they shall enjoy my property with limited rights and necessary arrangements shall be made by the guardian and after him and my granddaughter Laxmamma after attaining majority.

e. In case, as God's grace is not in favour of my aforesaid proposals, namely if my daughter did not take any boy in adoption and if the said boy will not accept to marry my granddaughter Laxmamma, I intend to give my aforesaid properties, 1/3rd share to my daughter Pitchamma and her husband who is also my son in law Ramireddy together. The remaining 2/3rd share is given to my grand daughter Laxmumma. Accordingly I executed the will and they have the right to partition and they shall enjoy the properties after division with absolute rights during their life time and thereafter their legal heirs"

5. Bijivemula Subba Reddy died within few months of the execution of the will. After few years of death of the testator, Pitchamma wanted to adopt Godi Venkat Reddy as her son but her husband Rami Reddy did not agree to that adoption. Rami Reddy left the Village Chennavaran, his wife Pitchamma and settled in other village - Pappireddypally. Rami Reddy then married with 5Subbamma. Out of the wedlock of Rami Reddy and his second wife, two sons were born : (i) Siddamurthy Jayarami Reddy and (ii) Siddamurthy Rami Reddy.

6. Lakshumamma married Godi Venkat Reddy somewhere in 1926 and out of that wedlock one son Godi Jayarami Reddy was born. Unfortunately Godi Venkat Reddy died within three years of marriage. Godi Jayarami Reddy has one son Godi Ramachandra Reddy. Rami Reddy died in 1939; Pitchamma died in 1953 and Lakshumamma died in 1971.

7. In 1980, the two sons of Rami Reddy, born out of wedlock of his second wife Subbamma, filed a suit for partition of the schedule properties - the properties bequeathed by Bijivemula Subba Reddy vide his will dated May 21, 1920 - claiming 1/3rd share therein under that will. They also claimed rent and profits. The case of the plaintiffs was that they and the defendants were members of a composite family and were in joint possession and enjoyment of the properties of Bijivemula Subba Reddy and as per the will they were entitled to 1/3rd share. During the pendency of the suit, one of the sons died and his legal representatives were brought on record. The plaintiffs are the present appellants.

8. The defendants traversed the claim of the plaintiffs and set up the plea that there was a dispute between Pitchamma and her husband Rami Reddy over the adoption of Godi Venkat Reddy; Rami Reddy left the house somewhere in 1924 and settled in Village Pappireddypally. It was averred that Rami Reddy married a second wife and not only abandoned Pitchamma but also abandoned his rights to the property given under the will. Pitchamma then looked after the family in the absence of any male member, managed the properties and got the patta of these properties transferred in the name of Lakshumamma and bequeathed her share in the property by a will in 1953 to Lakshumamma.

9. The defendants also set up the plea that Lakshumamma purchased few properties mentioned in the schedule from her own resources in 1955. They gave the details of those properties. They further set up the case that Lakshumamma after executing the will on March 6, 1953 partitioned the properties between herself and first defendant. By way of additional written statement, the plea of res judicata was raised. The defendants are the respondents herein.

10. On the basis of the pleadings of the parties, the trial court framed diverse issues; the parties let in oral as well as documentary evidence and the trial court heard the counsel for the parties.

11. The trial court in its judgment dated December 22, 1986 negated the plaintiffs' claim that they and the defendants were members of a composite family and the subject properties were in their joint possession and enjoyment. However, the trial court did hold that under the will dated May 21, 1920 Pitchamma and Rami Reddy got 1/6th share each in the properties of the testator. While concluding so, the trial court held that there was no condition imposed in the will by the testator that his daughter Pitchamma and son-in-law Rami Reddy must adopt a son and her granddaughter should marry the adopted son of Pitchamma and her husband. It was only a pious wish of Bijivemula Subba Reddy that his daughter Pitchamma adopted a son with the consent of her husband and that his granddaughter Lakshumamma should marry the adopted son of Pitchamma and her husband. The trial court further held that the plaintiffs were not claiming the property directly as legatees under the will but as legal heirs of Rami Reddy and Pitchamma since will had come into force and was acted upon after the death of Bijivemula 8Subba Reddy and, accordingly, Pitchamma and Rami Reddy got 1/6th share each. The trial court also held that the property acquired by Pitchamma by way of bequest under the will was a separate property and after her death, it devolved upon her husband's heirs (i.e. plaintiffs) and, thus, plaintiffs were entitled to 1/3rd share in the schedule properties. The trial court negated the plea of adverse possession set up by the defendants and passed a preliminary decree for partition in favour of plaintiffs with regard to their 1/3rd share.

12. The defendants (present respondents) challenged the judgment and decree passed by the trial court in appeal before the High Court. The High Court formulated three points for determination in the appeal viz; (i) whether Rami Reddy failed to comply with the obligations cast on him under the will dated May 21, 1920 executed by Bijivemula Subba Reddy and he abandoned the family and if so, whether his legal heirs (Plaintiffs) could claim his share in the property of the testator; (ii) whether will executed by Pitchamma in 1953 was genuine, true and bona fide and (iii) whether the defendants have acquired rights in the schedule properties by adverse possession.

13. The High Court held that it was obligated upon Rami Reddy under the will to maintain the dependants of the testator and act as an executor of the will. Rami Reddy failed to discharge both obligations - in maintaining the dependants of the testator and in acting - as executor. The High Court, thus, concluded that Rami Reddy could not claim any property under the will. The High Court overturned the finding of the trial court as regards the will executed by Pitchamma and held that the will executed by her in 1953 was genuine and true. As regards plea of adverse possession set up by the defendants--although negated by the trial court--the High Court held that there was ouster of the plaintiffs 60 years back and there was no semblance of any enjoyment of property by the plaintiffs' predecessors-in-title along with the defendants jointly. Consequently, the High Court by its judgment dated April 20, 2003 reversed the judgment and decree of the trial court and allowed the appeal preferred by the defendants.

14. It is from the judgment of the High Court that present appeal by special leave arises.

15. Mr. R. Sundaravaradan, learned senior counsel for the appellants argued: The importation of Section 57 and Section 141 of 10Indian Succession Act, 1925 (for short, `the 1925 Act') is wholly inappropriate since the present case is concerned with the muffussil will of a Hindu dated May 21, 1920 with regard to the properties situate outside the city of Madras. The muffussil wills (executed before 1927) do not require the formalities of execution, attestation and revocation to be carried out in the manner required by the 1925 Act. The parties did not join issue about the truthfulness of the will and there was only dispute about its construction and implementation. Even if it be assumed that Section 141 of the 1925 Act is attracted, the same has been complied with; the attesters were already dead.

16. It was vehemently contended by Mr. R. Sundaravaradan that the property vested in the executor in 1920 on the death of testator and Section 141 of the 1925 Act, even if applicable, could not divest such vesting in title. Dealing with the expression "take the legacy" in Section 141, it was argued by learned senior counsel that the said expression means taking possession of legacy and not vesting of the legacy. He submitted that the word "executor" used in the will has been used in loose sense of the term; Rami Reddy was the son-in-law of the testator, he was looking after and managing the 11lands and, therefore, the legacy bequeathed to him was not because he was to be the executor in strict sense but because he was the testator's son-in-law and manager.

17. Learned senior counsel submitted that there is no legal evidence of mismanagement, malversation or misappropriation and a vague allegation that the executor has not done his job required no serious consideration. He argued that the marriage of Rami Reddy with Subbamma was with the consent of Pitchamma and there was no legal impediment for a Hindu to have a second wife before Hindu Succession Act, 1956 or Bigamy Prevention Act, 1949 especially when Pitchamma was barren and it is indeed a legal requirement based on Shastric injunction to have progeny so that religious efficacy of satisfying the souls of forefathers is completed. Learned senior counsel contended that there was no voluntary and conscious abandonment by Rami Reddy and the High Court was in clear error in holding so.

18. Mr. R. Sundaravaradan criticized the findings of the High Court on the plea of adverse possession set up by the defendants and genuineness of the will executed by Pitchamma in 1953 in favour of Lakshumamma.

19. Mr. P.S. Narasimha, learned senior counsel for the respondents, on the other hand, supported the judgment of the High Court.

20. Indian Succession Act, 1865 (for short, `the 1865 Act') was enacted to provide for intestate and testamentary succession in British India. Section 331 of the 1865 Act, however, excluded its applicability to intestate or testamentary succession to the property of any Hindu, Muhammadan or Buddhist and it further provided that its provisions shall not apply to any will made, or any intestacy occurring, before January 1, 1866.

21. By the Hindu Wills Act, 1870 (for short, `the 1870 Act'), statutory provisions were made to regulate the wills of Hindus, Jainas, Sikhs and Buddhists in the Lower Provinces of Bengal and in the towns of Madras and Bombay. Inter alia, Section 2 thereof provided as follows : "S. 2. The following portions of the Indian Succession Act, 1865, namely,-- sections forty-six, forty-eight, forty-nine, fifty, fifty- one, fifty-five and fifty-seven to seventy-seven (both inclusive), sections eighty-two, eighty-three, eighty-five, eighty- eight to one hundred and three (both inclusive), 13 sections one hundred and six to one hundred and seventy-seven (both inclusive), sections one hundred and seventy-nine to one hundred and eighty-nine (both inclusive), sections one hundred and ninety-one to one hundred and ninety-nine (both inclusive), so much of Parts XXX and XXXI as relates to grants of probate and letters of administration with the will annexed, and Parts XXXIII to XL (both inclusive), so far as they relate to an executor and an administrator with the will annexed, shall, notwithstanding anything contained in section three hundred and thirty-one of the said Act, apply-- (a) to all wills and codicils made by any Hindu, Jaina, Sikh or Buddhist, on or after the first day of September one thousand eight hundred and seventy, within the said territories or the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and (b) to all such wills and codicils made outside those territories and limits, so far as relates to immoveable property situate within those territories or limits:"

22. The 1925 Act which came into force on September 30, 1925 has eleven parts. Part VI has twenty three chapters. Section 57 to Section 191 are covered by Part VI. Section 57 provides thus: "S.57. Application of certain provisions of Part to a class of Wills made by Hindus, etc. - The provisions of this Part 14 which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply-- (a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant- Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and (b) to all such Wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits; and (c) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):] Provided that marriage shall not revoke any such Will or codicil." Clauses (a) and (b) of Section 57 of the 1925 Act are pari materia to clauses (a) and (b) of Section 2 of the 1870 Act. Clause (c) is a new provision.

23. As noticed above, present case is concerned with the will executed in 1920. The will is admittedly a muffussil will as it has not been executed within the local limits of ordinary original civil jurisdiction of the High Court of Judicature at Madras. Clause (a) of Section 57 is apparently not attracted. The subject will also does not 15relate to immoveable properties situate within the local limits or territories as set out in clause (a). In this view of the matter, clause (b) is also not attracted. Clause (c) does not get attracted, as it applies to wills and codicils made on or after January 1, 1927.

24. Since the subject will is not covered by any of the clauses of Section 57, Part VI of the 1925 Act is not applicable thereto. Section 141 which falls in Chapter XIII of Part VI of the

25. 25 Act that provides - if a legacy is bequeathed to a person who is named an executor of the will, he shall not take the legacy, unless he proves the will or otherwise manifests an intention to act as executor -- is, thus, not applicable to the subject will. As a matter of fact, both learned senior counsel were ad idem that Section 141 of the 1925 Act, as it is, has no application at all. 25. We may also state that although the statutory provisions concerning construction of wills from Sections 74 to 111 of the 1925 Act do not apply but the general principles incorporated therein would surely be relevant for construction of the subject will.

26. It is well settled that the court must put itself as far as possible in the position of a person making a will in order to collect the testator's intention from his expressions; because upon that 16consideration must very much depend the effect to be given to the testator's intention, when ascertained. The will must be read and construed as a whole to gather the intention of the testator and the endeavor of the court must be to give effect to each and every disposition. In ordinary circumstances, ordinary words must bear their ordinary construction and every disposition of the testator contained in will should be given effect to as far as possible consistent with the testator's desire.

27. The above are the principles consistently followed and, we think, ought to be guided in determining the appeal before us. What then was the intention of this testator? The only son of the testator had predeceased him. At the time of execution of will, he had his wife, widowed sister, widowed daughter-in-law, daughter and minor granddaughter surviving; the only other male member was his son-in-law - Rami Reddy. He intended to give all his properties to the granddaughter but he was aware that after her marriage, she would join her husband's family. The testator intended that his entire estate remained in the family and did not go out of that and having that in mind, he desired that his daughter adopted a son with the consent of her husband and his granddaughter married the adopted son of his daughter. He, therefore, stated, "I intend to give all my belongings, moveable and immoveable properties to the said Lakshumamma and the adopted son of my daughter Pitchamma". He expressed in unequivocal terms, "after my demise, my granddaughter Lakshumamma who is the daughter of my son shall have absolute rights in my entire properties".

28. The testator gave two very particular directions in the will that until Lakshumamma attained the age of majority and attained power to manage properties; (one) Rami Reddy shall act as an executor till then and (two) the executor shall look after the female members in the family, namely, his wife Subbamma, widowed daughter-in-law, daughter Pitchamma, widowed sister Chennamma and granddaughter Lakshumamma. Rami Reddy, thus, was obligated to carry out the wishes of the testator by managing his properties and looking after the minor granddaughter Lakshumamma till she attained majority and also look after other female members in the family.

29. The clause, however, upon which the appellants' are claiming the rights in the properties of Rami Reddy is the clause that reads "...if my daughter did not take any boy in adoption and if the 18said boy will not accept to marry my granddaughter Lakshumamma, I intend to give my aforesaid properties, 1/3rd share to my daughter Pitchamma and her husband, who is also my son-in-law Rami Reddy together. The remaining 2/3rd share is given to my granddaughter Lakshumamma".

30. Mr. R. Sundaravaradan, senior counsel for the appellants is right in contending that the above clause in the will is not a repugnant condition that invalidates the will but is a defeasance provision.

31. In Mt. Rameshwar Kuer & Anr. v. Shiolal Upadhaya and Ors.1, Courtney-Terrell, C.J., speaking for the Bench, explained the distinction between a repugnant provision and a defeasance provision thus : "The distinction between a repugnant provision and a defeasance provision is sometimes subtle, but the general principle of law seems to be that where the intention of the donor is to maintain the absolute estate conferred on the donee but he simply adds some restrictions in derogation of the incidents of such absolute ownership, such restrictive clauses would be repugnant to the absolute grant and therefore void; but where the grant of an absolute estate is expressly or impliedly made subject to defeasance on the happening of a contingency and where the effect of such defeasance would not be a violation of any rule of law, the original estate is curtailed and the gift over must be taken to be valid and operative."1 A.I.R. 1935 Patna 401

32. The distinction between a repugnant provision and a defeasance provision explained in Mt. Rameshwar Kuer1 has been followed subsequently. In our view, Patna High Court rightly explains the distinction between a repugnant provision and a defeasance provision.

33. The question, however, upon which the fate of this appeal depends is : whether Rami Reddy became entitled to any legacy by virtue of the defeasance clause under the will at all.

34. The testator was clear in his mind that after his death, his granddaughter should have absolute rights in his entire properties. He has said so in so many words in the will. However, he superadded a condition that, should his daughter Pitchamma and son-in-law Rami Reddy not adopt a son or if his daughter and son-in-law adopted a son but that boy did not agree to marry his granddaughter, then 1/3rd share in his properties shall go over to his daughter Pitchamma and her husband Rami Reddy. The bequest to the extent of 1/3rd share in the properties of the testator in favour of Pitchamma and her husband Rami Reddy jointly was conditional on happening of an uncertain event noted above. As a matter of fact and in law, immediately after the death of testator in 1920, what became 20vested in Rami Reddy was not legacy but power to manage the properties of the testator as an executor; the legacy vested in Lakshumamma, albeit, defeasibly to the extent of 1/3rd share. The only event on which the legacy to Lakshumamma to the extent of 1/3rd share was to be defeated was upon happening of any of the above events. Mr. R. Sundaravaradan, learned senior counsel, thus, is not right in contending that on the death of testator in 1920, the legacy came to be vested in Rami Reddy and once vesting took place, it could not have been divested.

35. It has come in evidence that Pitchamma wanted to adopt Godi Venkat Reddy as her son, but her husband - Rami Reddy - did not agree to that and as a result thereof Godi Venkat Reddy could not be adopted by Pitchamma. On the issue of adoption of Godi Venkat Reddy, a serious dispute ensued between Pitchamma and her husband. Rami Reddy left the family of the testator and the village Chennavaran somewhere in 1924 and went to nearby village Pappireddypally where he married second time. It may be that there was no legal impediment for Rami Reddy to have a second wife before the Hindu Succession Act, 1956 or Bigamy Prevention Act of 1949 when no child was begotten from Pitchamma yet the fact of the 21matter is that he abandoned the family of the testator. There is no merit in the submission of Mr. R. Sundaravaradan that abandonment was not voluntary and conscious.

36. Rami Reddy neither continued as a guardian of minor granddaughter Lakshumamma nor looked after the testator's wife, widowed daughter-in-law, widowed sister and daughter. The female folk were left in lurch with no male member to look after. He took no care or interest in the affairs of the family or properties of the testator and thereby failed to discharge his duties as executor.

37. In view of the predominant desire that his granddaughter should have his properties and that his properties did not go out of the family, the testator desired that his daughter adopted a son with the consent of her husband and his granddaughter married that boy. The conditional legacy to Rami Reddy (to the extent of 1/3rd share jointly with Pitchamma) was not intended to be given to him if he happened to be instrumental in defeating the testator's wish in not agreeing to the adoption of a son by his (testator's) daughter. Such an intention might not have been declared by the testator in express terms but necessary inference to that effect can safely be drawn by reading the will as a whole. In the circumstances, the legacy to the extent of 1/3rd share cannot be held to have ever vested in Rami Reddy jointly with Pitchamma as it was he who defeated the adoption of son by the testator's daughter. As a matter of fact by his conduct, Rami Reddy rendered himself disentitled to any legacy.

38. Not only that Rami Reddy did not discharge his obligations under the will of looking after the family and managing the properties as an executor but he was also instrumental in frustrating the adoption of son by the testator's daughter. Much before the defeasance clause came into operation when Lakshumamma married Godi Venkat Reddy who could not be adopted as son by Pitchamma, Rami Reddy had already left the testator's family for good and abandoned the legacy that could have come to him under that clause.

39. The plea, of the appellants, that Rami Reddy's family from the second wife and the testator's family was a composite family and the properties were joint family properties of the plaintiffs and the defendants, has not been accepted by the trial court as well as High Court. We have no justifiable reason to take a different view on this aspect.

40. Importantly, Rami Reddy during his life time - although he survived for about 19 years after the death of the testator - never claimed any legacy under the subject will.

41. All in all, on the construction of the will and, in the circumstances, it must be held, and we hold that no legacy came to be vested in Rami Reddy and he did not become entitled to any interest in the estate of the testator and, therefore, the plaintiffs did not acquire any right, title or interest in the properties of Bijivemula Subba Reddy.

42. In view of the above, the challenge to the findings of the High Court on the plea of adverse possession set up by the defendants and the genuineness of the will executed by Pitchamma in 1953 pale into significance and needs no consideration.

43. In fairness to Mr. R. Sundaravaradan, learned senior counsel for the appellants, it must be stated that he cited the following authorities: (Katreddi) Ramiah and another v. Kadiyala Venkata Subbamma and others [A.I.R. 1926 Madras 434]; Balmakund v. Ramendranath Ghosh [A.I.R. 1927 Allahabad 497]; Ratansi D. Morarji v. Administrator-General of Madras [A.I.R. 1928 Madras 1279]; Bhojraj v. Sita Ram and others [A.I.R. 1936 Privy Council 60]; 24Ketaki Ranjan Bhattacharyya and others v. Kali Prasanna Bhattacharyya and others [A.I.R. 1956 Tripura 18]; P. Lakshmi Reddy v. L. Lakshmi Reddy [(1957) SCR 195]; AL. PR. Ranganathan Chettiar and another v. Al. PR. AL. Periakaruppan Chettiar and others [A.I.R. 1957 S.C. 815]; Darshan Singh and others v. Gujjar Singh (Dead) By LRs. and others [(2002) 2 SCC 62]; Govindammal v. R. Perumal Chettiar and others [(2006) 11 SCC 600] and Govindaraja Pillai and others v. Mangalam Pillai and another [A.I.R. 1933 Madras 80]. However, in view of our discussion above, we do not think we need to deal with these authorities in detail.

44. In the result, appeal fails and is dismissed with no order as to costs.

.........................J. (Aftab Alam)

........................ J. (R.M. Lodha)

NEW DELHI,

APRIL 1, 2011