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The Transfer of Property Act, 1882
Section 6(a) in The Transfer of Property Act, 1882
Section 6 in The Transfer of Property Act, 1882
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Allahabad High Court
Balwant Singh vs Joti Prasad And Ors. on 15 July, 1918
Equivalent citations: 47 Ind Cas 599
Bench: Tudball, A Raoof

JUDGMENT

1. This appeal arises out of an execution proceeding under two decrees, dated (1) the 22nd of June 1917 and (2) the 15th of December 1917, both of which were passed in one and the same suit No. 63 of 1915, (1) Rai Bahadur Lala Joti Prasad, (2) Lala Raghunath Singh and (3) Lala Beni Prasad, plaintiffs v. (1) Choudhri Balwant Singh, (2) Rana Indar Singh defendants. The application for execution was made on the 17th of December 1917, and the prayer made was that possession over Talluqa Naogawn, entered in the list annexed to the application, be delivered to the decree-holders against the judgment-debtors Nos. 1 and 2. A further prayer was that the Collector of Saharanpur, who ,was in possession of the property as a Receiver, be asked by a Rubkar to deliver possession of the said property to the decree-holders and to hand over to them such sums of money as may be with him in deposit, on account of the profits of the said property. Objections were raised by Balwant Singh, judgment-debtor, to the execution of the decree. Those objections have been disallowed by the learned Subordinate Judge of Saharanpur by his judgment, dated the 5th of April 1918. Choudhri Balwant Singh, judgment-debtor, has appealed and in the memo-randum of appeal has raised pleas embracing almost all the objections which he had raised in the Court below. In order to appreciate the pleas raised and the argument addressed to the Court on behalf of the appellant it is necessary to state shortly the previous history of the litigation.

2. One Raja Raghubir Singh was the owner of a considerable property known as the Landhaura Estate. He died in the year 1868, leaving Rani Dharamkuar, who was pregnant at the time, as his widow. It is an admitted fact that before his death he permitted and authorized his widow to adopt a son for him, in case the child born of the widow died in its infancy. He further gave permission to adopt another son in case the one adopted was to die in his childhood, in her life time.

3. A child was born after the death of Raghubir Singh, but he having died, Rani Dharamkuar adopted one Indar Singh, in 1877. The latter having died, she adopted one Rambadan Singh in 1883, who also having died in l885, one Bharat Singh was selected in 1893 for adoption, but before his adoption had taken place, he died in 1896. Eventually, Choudhri Balwant Singh, the appellant in this appeal, was adopted on the 13th of January 1899 and a deed of adoption was executed on that date and was formally registered. The material portions of the said deed having a bearing upon the questions in dispute in this appeal are these:

In paragraph 3, it is stated that on the death of the Raja, Rani Dharamkuar entered into proprietary possession of all kinds of property (Har qism matrukah ki malik o mustahiqq o qahiz hut) and that she was in possession of all the property belonging to the Reyasat of the said Raja Saheb at the time of the execution of the -document. In paragraph 4, it is stated that being the owner of a consider-able property, the Raja in his lifetime, owing to religious needs and other requirements, was anxious to have a son born who may fulfil the religious needs and who may be the owner of the Reyasat. In paragraph 5, it is stated that as the lady, at the time of his last illness, was pregnant, he did not adopt a son himself in his lifetime. In paragraph 6, it is stated that during his last illness, having suddenly become hopeless of his life, he, by way of precaution, directed the lady, 'That in case a daughter is born or if a boy having born dies, I enjoin upon you and order you that you should adopt a boy for me, so that he may keep our name alive and after your death may be the absolute owner and possessor of my entire estate and if perchance, the son adopted, according to this permission, dies in your lifetime then you will continue to have the power ourther adoption" In paragraph 10, it is stated that she in June 1898 selected Choudhri Balwant Singh, son of Choudhri Ramnawaz, for the purpose of adoption and from that date the said Balwant Singh came under her protection and was brought up by her. In paragraph 11, it is stated that the executant adopted Choudhri Balwant Singh on the 13th of January 1899. In paragraph 12, it is stated that "The said Balwant Singh will be considered the adopted son of Raja Raghubir Singh and of the executant and he will perform all the religious duties towards the said Raja Saheb and the executant after the death of the executant, and after her death he will be the absolute owner of the property of the Reyasat Landhaura." The most important provision is contained in paragraph 13, which runs thus:

That during her lifetime the executant will continue to have all the rights over all the properties of the Reyasat of Landhaura left by Raja Raghubir Singh which a Hindu widow has over her husband's estate according to the Hindu. Law and that she will continue to be the owner and in possession as before, that the said Balwant Singh, my adopted son, will have no right to interfere with my rights of ownership and with the management and supervision of the Reyasat during my life. But the said adopted boy will be maintained according to his position and status and be will be properly brought up and that she has adopted Balwant Singh on these conditions and Choudhri Ramnawaz, the father of Balwant Singh, has given him in adoption on these very conditions and this was in accordance with the wish and permission of the Raja Saheb.... "On the game date Choudhri Ramnawaz Singh executed an iqrarnama in which, after mentioning that he had willingly given his son Choudhri Balwant Singh, aged 16 years, in adoption, to Rani Dharamkuar, he stated "that from this date the son ceases to have any connection with his natural family and that the said son will, from to-day, acquire all the rights which an adopted son has under the law in all the property left (matrukah) by Raja Raghubir Singh deeeased and which are in the possession of the Rani Saheba. But it has been agreed between ma and Rani Saheba that according to the wish and permission of Raja Raghubir Singh tho Rani Saheba will continue to be malik aur kabiz (owner and in possession) of the entire Reyasat during her life....

4. Disputes having arisen between Choudhri Balwant Singh and his adoptive mother, Rani Dharamkuar, the latter instituted a suit against him in 1905 with the object of getting rid of him. It is unnecessary to give the details of that litigation; it is enough to state that the suit was dismissed and Choudhri Balwant Singh was successful. His position as the adopted son of Raja Raghubir Singh was made secure.

5. In 1911 Choudhri Balwant Singh filed a suit No. 1 of 1911 against Rani Dharamkuar for possession of the properties of the Reyasat Landhaura, but the defendant having died during the course of the suit, in the month of November 1912, the further prosecution of the suit became unnecessary.

6. During the course of the litigation with Rani Dharamkuar, Balwant Singh had to mortgage and sell portions of the property of the Reyasat in order to procure funds to carry on the fight with his adoptive mother. The property, the subject-matter of the present dispute, We., Manza Ahmad pur Naogawn, was sold to the present respondents, (1) Lala Joti Prasad, (2) Lala Raghunath Singh and (3) Lala Beni Prasad, sons of Lala Bansi Lal, under a sale deed, dated the 3rd of March 1911.

7. After selling the property in dispute to the respondents, Balwant Singh leased the property by a deed of lease, dated the 2nd of August 1913, to Rana Dharam Singh, the father of Indar Singh, the judgment debtor No. 2.

8. In 1914, Choudhri Balwant Singh filed a suit No. 61 of 1914 against the present decree-holders, in which he assailed the sale-deed, dated the 3rd of March 1911, in favour of the respondents on the ground of fraud, want of consideration, etc., and prayed that it be set aside. That suit was referred to arbitration on the 17th of September 1914, and when the award was filed in Court certain objections were taken to its valid-ity but eventually a decree was passed on the award on the 3rd of February 1915 against Balwant Singh, whose suit was dismissed on that date. In pursuance of the decree passed on the award, the present respondents decree holders deposited Rs. 65,000 in Court to be paid to Balwant Singh. Against this decree, Choudun Balwant Singh filed an appeal in the High Court which was registered as First Appeal No, 121 of 1915. In the meantime the present respondents filed a suit No. 63 of 1915 in the Court of the Subordinate Judge of Saharanpur against Choudhri Balwant Singh in which they impleaded Rana Dharam Singh, the lessee of the property in dispute, under the lease, dated the 2nd of August 1913. Subsequently, the name of Rana Indar Singh, his minor son, was added to the array of defendants, under the guardianship of Musammat Sukhdevi, the, grandmother of Rana Indar Singh.

9. The reliefs claimed in the plaint were (a) that the lease, dated the 2nd of August 1913, be declared invalid and possession be delivered to the plaintiffs as against the defendants Nos. 1 and 2, (b) that mesne profits be awarded against the defendants, (c) that a sum of money by way of damages for the price of trees cut down by the defendants be awarded against them.

10. Thus in addition to First Appeal No. 121 of 1915, Choudhri Balwant Singh appellant v. Rai Bahadur Lala Joti Prasad and Ors. two other matters between the parties were pending in the High Court, viz., First Appeal No. 123 of 1915, Civil Revision No. 2 of 1917, and as mentioned above the Original Suit No. 63 of 1915, Rai Bahadur Joti Prasad and others plaintiffs (sic) Choudhri Balwant Singh and Rana Indar Singh defendants, was pending in the Court of the Subordinate Judge of Saharanpur. The respondents in this case and Choudhri Balwant Singh filed a com-promise in the High Court by which they settled all their disputes. Two paragraphs of this compromise, which have a material bearing upon the present proceedings were these:

(1) That if Balwant Singh pay, on or before 19th September 1917, in the Court of the Subordinate Judge of Saharanpur for payment to Rai Joti Prasad and others aforesaid the following sums viz.,

(a) Rs. 2,50,000 with simple interest thereon at the rate of 6 per cent, per annum from 18th January 1915 up to the date of payment.

(b) Rs. 65,000 with simple interest thereon at 6 per cent, per annum from 17th March 1915 up to the date of payment.

(c) The amount due under decree No. 51 of 1915 with interest as provided in the said decree up to the date of payment, the said Rai Bahadur Lala Joti Prasad, Lala Raghunath Singh and Lala Beni Prasad shall and do hereby abandon all claim and interest under the sale of March 1911 and their suit for possession of the Taluqa Naogawn shall stand dismissed, parties bearing their own costs throughout the litigation, and the Collector of Saharanpur as the Receiver of the property shall deliver Naogawn to Choudhri Balwant Singh together with all profits in his bands.

(2) That if the said Choudhri Balwant Singh does not pay into Court the amount aforesaid in terms of the preceding clause on or before the 19th of September 1917, his suit and First Appeal No. 121 of 1915, First Appeal from Order No. 123 and Civil Revision No. 2 of 1917 shall stand dismissed, both parties paying their own costs, and the Original Suit No. 63 of 1915 shall stand decreed with costs and the Collector of Saharanpur, who is in possession of Naogawn as Receiver appointed by the Court, shall deliver possession of the said Taluqa together with profits thereof in his hands to Rai Bahadur Lala Joti Prasad and others plaintiffs' in that case." It was further stated in the compromise that "This compromise is filed in the three cases pending in this Hon'ble Court and the parties will file a copy of this compromise in Suit No. 63 of 1915 within one week from this date, and apply to the said Court to decree the claim in accordance therewith." It appears that a copy of this compromise was filed in the Court of the Subordinate Judge of Saharanpur in which the Suit No. 63 of 1915 was pending and the learned Subordinate Judge was requested to pass a decree in the suit in accordance with the terms of the compromise. No objection was raised on behalf of Balwant Singh but Rana Indar Singh objected that, as he was not a party to the compromise, a decree could not be passed as against him on the compromise and that as separate decrees could not be passed against the two defendants no decree should be passed even against Balwant Singh. The learned Subordinate Judge, however, overruled the objections of Indar Singh and passed a decree against Balwant Singh on the basis of the compromise on the 22nd of June 1917, ordering that a copy of the above-mentioned compromise be attached to the decree.

11. Subsequently a compromise was also effected between the plaintiffs Rai Bahadur Lala Joti Prasad, etc., and Rana Indar Singh, under the guardianship of Rani Sukhdevi, his grandmother, and under the terms of the compromise a decree was passed by the Additional Subordinate Judge of Saharanpur in the suit against defend-ant No. 2 also on the 15th of December 1917. Choudhri Balwant Singh did not deposit the amount which he was required to do, on or before the 19th of September 1917, under the compromise. The necessary result of which was that the suit of Bal-want Singh No. 61 of 1914 stood dismissed, and Suit No. 63 of 1915 of the plaintiffs against Balwant Singh and Indar Singh stood decreed. Hence this application for execution of the two decrees passed in the Suit No. 63 of 1915 was made and the Court was asked to deliver possession to the plaintiffs, decree-holders, over Taluqa Naogawn. The judgment debtor No. 1 objected to the execution of the decree on the grounds:

(1) That at the time of the execution of the sale-deed, on the basis of which the decree under execution had been obtained the objector had merely a chance of succession after the death of Rani Dharamkuar which could not be transferred under the law and having regard to the provisions of Section 6(a) of the Transfer of Property Act, no right vested in the transferees under the sale.

(2) That the transfer being contrary to law, the compromise between the parties and the subsequent decree passed on the compromise could not validate the transfer.

(3) That the compromise ought not to have been accepted and a decree ought not to have been passed on its basis, under Order XXIII, Rule 3 of the Code of Civil Procedure.

(4) That as the compromise was not filed in Court within a week, as provided by the compromise, a decree ought not to have been passed on it.

12. On behalf of the decree-holders it was urged that the provision of Section 6(a) of the Transfer of Property Act was not applicable to the facts of this case.

13. That the decree passed in the Suits Nos. 61 of 1914 and 63 of 1915 operated as res judicata.

14. That the judgment-debtor, in his Suit No. 61 of 1914 himself, had accepted the award inspite of an objection by the decree-holders and that he had benefited under the award by receiving Rs. 65,000 under it and that he was now estopped from objecting to the award and the compromise.

15. The learned Subordinate Judge of Saharanpur decided that the case of an adopted son. where the adoption was made by a widow on the condition that the adopted son would have no right during her life to the ownership or possession of the property, was distinguishable from the case of a mere Hindu reversioner who is to succeed after the death of a widow. In his opinion inspite of a condition postponing the rights of an adopted son, till after the death of the widow, the adopted son would have a vested interest in the property left by the deceased owner. In this view, apparently, he did not think it necessary to deal with the question of estoppel and res judicata raised in the pleadings. He was of opinion that the, interest acquired by Balwant Singh, being of a higher character than the mere contingent reversionary interest of a collateral to succeed to property on the death of a Hindu widow, he was capable of dealing with it effectively, though the operation of the transfer made by him may be postponed till after the death of the widow. He based his judgment on the general principles of the Hindu Law and disallowed the objections raised by the judgment debtor. Towards the end of his judgment, there is an indication that he was also of opinion that the objection now raised by the judgment-debtor ought to have been raised by him at the time the compromise was filed and before a decree was pissed on it. The pleas raised in the memorandum of appeal presented to this Court raise two main questions:

(1) Whether the transfer made by Balwant Singh was ineffective as being opposed to the provisions of Section 6(a) of the Transfer of Property Act? and

(2) Whether the subsequent compromise effected in the Suits Nos. 61 of 1914 and 63 of 1915 had the effect of removing any defect existing in the sale? Only these questions were argued before us.

16. In order to determine the first question, we think it necessary first to examine the provisions of the deed of adoption together with those of the agreement executed by the natural father of Balwant Singh. IN doing this we ought to keep in mind the general rules of the Hindu Law, as applicable to an adoption. The adoptedsen on his adoption leaves his father's gotra and cannot take his estate nor does he offer pindas to him. As soon as the adoption is made, he is transferred to the family of the adoptive father. He stands exactly in the same position as if be had been born to his adoptive father. He divests the estate of any person in possession of the property of the adoptive father. If a widow happens to be in possession of the estate the result of the adoption is that her limited estate at once ceases. He becomes the full owner of the property and the widow's rights are reduced to a mere claim of maintenance. Such being the law, it lies upon the judgment-debtor to establish beyond doubt that the deed of adoption contained such valid conditions as to prevent the operation of the law. He will have, in the first instance, to show that there was an intention to prevent the vesting of the right to property in the adopted son and that intention was given effect to by some legal and valid provision in the deed of adoption. On a consideration of the terms of that deed we find that there is nothing in it which would prevent the vesting of the right in the adopted son. It is provided in the deed that the son would leave the family of his natural father and would live with his adoptive mother. He would be brought up under her guardianship and would be supported and maintained according to his position and status, mortaba aur hasiyat ke muwaftq. This would show that Balwant Singh was to be treated as an adopted son and his position and status was to be maintained as such. In this view, the condition reserving to the widow the right of ownership and possession during her lifetime would simply mean that though Balwant Singh was to be the rightful owner as an. adopted son, the widow was to remain in possession during her life, exercising all the powers of ownership as an ordinary Hindu widow. This construction, to a large extent, derives support from the clear wordings of the agreement executed by Ramnawaz Singh, the natural father of Balwant Singh: Tarikh imroza se pisr-i-mastur ka apne khandan se kuchh taluq nahin raha hai aur pisr mazkur ko woh haquq jo qanunan pisr-i-mutabanna ko hasil hote hain aj ki tarikh se kul jaidad wa matruka Raja Raghbir Singh Sahib marhum wa maqbuza junabah Rani Sahiba masufah men hasil honge, lekin yih shart mabain manmoqir aur junabah Rani Sabiba masufah hasab mansha wasiyat-o-ijazat Raja Raghbir Singh Sahib marhurn qarar pai hai keh junabah Rani Sahiba masufah apni zindgi tak badustur malik aur qabiz kul reyasat rahaingi.

17 viz., "From this date the son ceases to have any connection with his natural family and that the said son will, from to-day, acquire all the rights which an adopted son has under the law in all the property left (matrukah) by Raja Raghubir Singh deceased, and which are in the possession of Rani Saheba. But it has been agreed between me and Rani Saheba that acoording to the wish and permission of Raja Raghubir Singh, the Rani Saheba will continue to be malik aur qabiz (owner and in possession) of the entire Reyasat during her life."

18. In this view of the construction of the deed of adoption it becomes unnecessary to consider the question whether it is lawful for a Hindu widow to make a conditional adoption so as to prevent the adopted son from taking possession of, and enjoying rights of ownership over, the property of the adoptive father during her life and whether such a condition creates an interest in favour of an adopted son, of the nature which is contemplated by Clause (a), Section 6 of the Transfer of Property Act.

19. It has been held in several cases that an agreement depriving an adopted son of "his right to take possession of the property of the adoptive father is not prohibited by the law and such an agreement has been given effect to. See for example Kali Das v. Bijai Shankar 13 A. 391 : A.W.n. (1891) 141 : 7 Ind. Dec. (N.S.) 250 and Visalakshi Ammal v. Siva-ramien 27 M. 577 : 14 M.L.J. 301 (F.B.). But we have not been referred to any case in which it has been held that the interest of an adopted son under such a conditional adoption is exactly similar to the interest of a contingent collateral Hindu reversioner. The latter kind of interest has been held to be a mere chance of an heir-apparent succeeding to an estate, and as such has been held to be non-transferable. Irrespective of the construction which we have put on the terms of the deed of adoption, we are of opinion that it has not been shown that the interest created in favour of Choudbri Balwant Singh under the conditional adoption in question was a mere possibility of succession to the Landhaura Estate after the death of Rani Dharamkuar. In our opinion both according to the interpretation of the deed of adoption and the law, a vested right was created in his favour, and merely his right of enjoyment and possession was postponed till after the death of the lady. Such being the case, we are of opinion that the transfer of Taluqa Naogawn in favour of the decree-holders under the sale-deed, dated the 3rd of March 1911, was unaffected by the provisions of Section 6(a) of the Transfer of Property Act.

20. We agree with the lower Court that on this finding alone the objections of the judgment-debtor were bound to fail, but we are also of opinion that the subsequent compromise and the decrees passed thereon left no room for any contention on the point. Rani Dharamkuar having died in November 1912, the property vested in Choudhri Balwant Singh. He was at the time a married man 29 years old and could deal with it as he liked. Under the conrpromise he entered into a new agreement, according to which the property sold was to vest in the decree-holders in the event of his failing to pay to them certain sums of money before the 19th of September 1917. The parties understood their positions fully and by a lawful agreement completed a binding contract. A decree was passed en the compromise which put an end to all disputes between the parties. It is too late now to try to go behind the compromise and the decree. It has, however, been argued on behalf of the, appellant that if it was a mere expectancy that was transferred by the sale-deed in question it was open to him to impugn both the compromise and the decree when possession was claimed in execution. In support of his contention the learned Counsel for the appellant relied upon the case of Ramasami Naik v. Ramasami Chetti 30 M. 255 : M.L.J. 201. That was a case relating to an impartible and inalienable zemindari. The nature of the interest which was transferred in that case by mortgage and the circumstances under which the consent decree had been obtained are stated at page 261* of the report in these words: We now come to the most serious objection urged by the appellant. It is said that by the suit mortgage and the consent decree the 2nd to the 5th defendants purport to transfer only their chance of succeeding to the zemindari, and that such a chance or mere possibility is incapable of transfer in India by virtue of Section 6(a) of the Transfer of Property Act. As pointed out by Muttusami Ayyar, J. [Sivasubramania Naicker v. Krishnammal 18 M. 287 at p. 291 : 5 M.L.J. 168 : 6 Ind. Dec. (N.S.) 549], in the case of this zemindari the interest to which each zemindar succeeds is his separate property and consists of his right to the income of the zemindari as beneficial owner for life. This is the interest which defendants Nos. 2 to 5 have sought to transfer by the mortgage and the consent decree. At the dates of mortgage and decree they had a mere chance of succeeding to this interest dependent in the case of each on his surviving all the male members of the family older than himself so as to make him for the time being the oldest member.

21. At the bottom of page 262* the learned Judges who decided the case remarked:

it is further urged that the defendants cannot go behind the decree. If, however, the mortgage did not operate as a transfer of interests of defendants Nos. 2 to 5, neither could the consent decree in the circumstances of the present case.

22. Now, what were the circumstances to which the learned Judges referred? The circumstances were these:

The only interest which the defendants Nos. 2 to 5 in that case had, was a mere chance of succeeding to a life-interest on the happening of a certain event as described at page 261 Page of 30 M.-Ed. above mentioned. In that case there can be no doubt that the interest transferred was of a kind contemplated by Section 6, Clause (a) of the Transfer of Property Act, The mortgage was made of such interest and at the time the consent decree was passed it was still a mete chance. In the present case irrespective of the nature of interest which Choudhri Balwant Singh possessed at the time of the sale-deed, he had a full and complete interest which had come into existence before the compromise and the consent decree. If the widow had been alive at the date of the consent decree, in that case the ruling might have had a bearing on this question. No case has been cited having a direct bearing upon the facts of the present case. In our opinion it is not open to the judgment-debtor to go behind the compromise and consent decree in this case.

23. Over and above all that we have mentioned above there is the fact that what Choudhri Balwant Singh purported to transfer both by the deed of sale and the compromise was not a mere expectancy but the full right of ownership; even assuming that he had no vested interest at the date of sale he subsequently became the full owner and was such at the date of the compromise. He had received the sale consideration and the respondents had also paid a further sum of Rs. 65,000 and they are entitled to the estate which subsequently became vested in the minor after the death of the Rani. At the date of the sale Choudhri Balwant Singh claimed to be the full owner and was actually suing the Rani for possession and he purported to transfer the full right. We think that the decision of the Court below is right and the appeal should be and is hereby dismissed with costs.