Holding

The Hospital is the full owner of the bungalow, the property is a public premise, and the eviction of the tenant under the 1973 Act is lawful.

Summary

The Supreme Court examined a dispute over a bungalow bequeathed by Smt. Chanan Kaur to the Randhir Jagjit Hospital. The State Government, as successor to the Hospital, sought eviction of Mohan Krishan Abrol, who claimed he was a tenant under a ten‑year lease and that the Hospital was only a beneficiary, not the owner. The Court held that the will unequivocally transferred absolute ownership to the Hospital, making the property "public premises" under Section 2(e) of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973. Consequently, the lease had expired, Abrol became an unauthorized occupant, and the eviction order was maintainable. The High Court’s decision setting aside the eviction order was reversed. The appeal filed by the State Government was allowed and the tenant’s appeal dismissed.

Issues considered

Whether the Hospital is the absolute owner of the property or merely a beneficiary under the will.
Whether the property qualifies as 'public premises' under Section 2(e) of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973.
Whether eviction proceedings under the 1973 Act are maintainable after the lease expired.
Whether the executors’ vesting of the property and their assent to the legacy affect the title.

Legislation cited

Indian Succession Act, 1925s. 211, s. 213, s. 336, s. 87
Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973s. 10, s. 15, s. 2(e), s. 4, s. 5

Subjects

Will interpretationPublic premisesEvictionLease renewalSuccession lawExecutorsUnauthorized occupationPunjab Public Premises Act

Judgment

.....
•
ft
A COMMISSIONER, JALANDHAR DIVISION AND ORS.
v.
MOHAN KRISHAN ABROL A\/D ANR.

APRIL 2, 2004

B [V.N. KHARE, CJ. AND S.H. KJ.PADIA, J.]

Punjab Public Premises and land (Evictior and Rent Recovery) Act, ,._ •
1973-Sections 2(e), 4, 5 and 15-Succession Ac,, 1925-Sections 87, 211,
213 and 336-Execution of registered will by testatrix-Property bequeathed
c to Government hospital and appointment of execut ?rs-Mutation in favour of
hospital-Application by Hospital for eviction of a!leged tenant-unauthorized
occupant-Title suit by tenant claiming that testairix executed lease deed in
his favour as such· he is tenant and declaration ,hat State Government not
owner of the property-Eviction order passed bv Competent Authority as
lease for JO years period not renewed after expi-y and tenant declared an
D
unauthorized occupant of the premises-Dismissal o_(appeal against the order-
Meanwhile, title suit decreed holding that on the death of testatrix property ~ .
vested in executors and not State as such eviction J. roceedings under 1973 Act
not maintainable-However, lower Appellate Coi·rt dismissed the suit-Writ
Petition and Regular Second Appeal-Writ Petition allowed holding that
E property vested in executors as such eviction proceeding not maintainable,
however second appeal dismissed as title suit no' maintainable-On appeal
Held: The Clause of the Will unequivocally stat~s that testatrix bequeathed
her bungalow to the Hospital absolutely and fonver, thus Hospital not the
beneficiary, but full owner and 'public premises' under section 2(e)-On demise
of testatrix, property vested in executors who asse ~ted to the legacy in favour
F .....
of hospital--Hence, eviction proceedings mainta.nable under 1973 Act and
order of High Court not right in this regard-Further on expiry of lease,
tenant was in wrongful and illegal occupation of t.1e property as unauthorized
occupant' thus, Competent Authority right in pl'ssing eviction order under
1973 Act.
G
CK owned certain property. She exec ~ted registered Will and
bequeathed the property to State Government through the Hospital and ......
Jr •
appointed executors. Property was mutated n favour of the Hospital.
Hospital filed an application under sections ' and 5 of Punjab Public
Premises and Land (Eviction and Rent Reco,,ery) Act, 1973 before the
H 722
COMMR. JALANDHAR DIVISION v. M.K. ABROL 723
Collector for eviction of respondent no. 1 who was allegedly an A
unauthorized occupant of the property. Respondent no. 1 filed a suit
claiming title that testatrix had executed a registered lease deed in his
favour and as such was a tenant and declaration that State Government
was not the owner of the property. Competent Authority found that
respondent was a lessee under the lease deed for 10 years which on expiry B
was not renewed and passed an eviction order against respondent no. I
declaring him to be unauthorized occupant of the premises. Respondent
filed an appeal. Commissioner dismissed the same. In the meantime, title
suit was decreed holding that the respondent was a lessee and entitled to
maintain the suit; that on the death of testatrix property vested in the
el(ecutors and not in the State, and as such proceedings under the 1973 C
Act were not maintainable. Government filed an appeal. Lower Appellate
Court held that the respondent had no locus standi to bring the title suit;
and that the executors had assented to the perfection of title in the State
and as such dismissed the title suit. Aggrieved respondent No. 1 filed writ
petition and also regular second appeal. High Court held that the Hospital
was only a beneficiary under clause 2 of the Will and since under section D
211 of the Succession Act, 1925 property vested in executors, eviction
proceedings under 1973 Act were not maintainable and as such set aside
the eviction order and allowed the writ petition; however in view of section
15of1973 Act held that suit filed by the respondent was not maintainable
and thus, dismissed the second appeal. Hence the present appeals. E
Appellant contended that on the demise of the testatrix, the property
vested in the executors which was only for the purposes of representation;
that a bare reading of clause 2 of the Will shows that the said property
was bequeathed absolutely in favour of the Hospital so that a ward could
be set up in that hospital in the name of the deceased-husband of the F
testatrix and the Will has to be interpreted in the light of the aforesaid;
that the High Court had erred in holding that the ownership of the demised
premises did not vest in the Hospital, that the Hospital was only a
beneficiary under the Will and the property did not constitute public
premises under section 2(e) of the 1973 Act; that public premises used in G
the section means the premises belonging to the State Government, and
the words 'belonging to' would include beneficial interest in the property
in favour of the State Government and thus, the property in dispute would
fall in the category of public premises under the 1973 Act; that CK had
let out the said property on lease to respondent No. 1 for ten years which
was not renewed after its expiry, therefore, respondent No. I was in H
724 SUPREME COURT REPORi'S [2004] 3 S.C.R.

A wrongful and illegal use and occupation of the said property as
unauthorized occupant after expiry and, therefore, eviction proceedings
were maintainable under the 1973 Act; and that High Court was right in
dismissing the title suit in view of section 15 of 1973 Act.

Respondent No. I contended that clause 2 of the Will refers to
B bequest in favour of the Hospital only for the specific use of the property
as a ward and property was to be maintained out of the income from the
landed property of testatrix, as such the Hospital was only a beneficiary .... •
under the Will and not the owner and, therefore, eviction proceedings
under the 1973 Act were not maintainable; that by virtue of renewal
C clause, respondent sought renewal of the lease which was not paid heed
thereto; that in any event, the clause provided for automatic renewal and,
as such there was no need to make an application for renewal and
respondent no. I cannot be said to be in unauthorized occupation of the
property under 1973 Act and as such High Cot rt was right in holding
that respondent No. I cannot be said to be in unauthorized occupation of
D the premises; that under section 211 read with section 213 of the 1925 Act,
the property had vested in the executors and no·: in the State and in the ..._ '
absence of probate/letters of administration, State had no right to
administer the estate of the deceased testatrix, i ~eluding right of action
under the 1973 Act.

E Allowing the State Government's appeal and dismissing tenant's
appeal; the Court

H£LD: I.I. High Court was right in dismissing Regular Second
Appeal filed by respondent No. I-tenant, however, it erred in allowing the
F Writ Petition filed by respondent no. I. (734-F(

2. t. In the matter of interpretation of Willi, the Court has to look
at the wishes of the testator indicated therein. In the instant case, the
testatrix wanted her bungalow to be bequeatt ed for all times to the
Government hospital and she wanted it to be used as a ward of the hospital
G to be named after her late husband. The ward was to be maintained from
the income derived from the surrounding ga ·den and other landed
properties so that in future the ward in the h >spital is not adversely x •
affected for want of funds. High Court erred in t olding that the Hospital
was a beneficiary and not the owner. Therefore, the property constituted
'public premises' under section 2(e) of the Punjab Public Premises and
H Land (Eviction and Rent Recovery) Act, 1973. Tt1e submission that under
COMMR. JALANDHAR DIVISION v. M.K. ABROL 725
section 211 of the Succession Act, the property vested in the executors who A
had ap.plied for probate but the same was refused by the testamentary
court, and as such the property never vested in the appellant cannot be
accepted. 1731-E-G I

2.2. A bare reading of section 211 shows that an executor derives
his title from the Will and not from probate. The personal property of B
the testator (including right of action) vests in the executors on the death
~ ..\ of testator. Section 336 provides that an executor gets divested of his
interest as an executor from the death of the testator when he assents to
a specific legacy. Section 213 acts as a bar to the establishment of rights
under the Will by an executor or a legatee unless probate or letters of C
administration have been obtained. This bar comes into play only when a
right as an executor or a legatee under Will is sought to be established.
However, an un-probated Will can be admitted in evidence for collateral
purposes in any other proceedings apart from a probate proceedings.
[733-A-B)
D
..., Kulwanta Bewa v. Karamchand, AIR (1938) Calcutta 714 and Meyappa
Chetty v. Supramanian Chetty 43 Indian Appeals 113, referred to.

Cherie hi v. lttianam, AIR (2001) Kerala 184, relied on.

2.3. In the instant case, on the demise of the testatrix, the proj)erty E
vested in the executors. The facts show that the executors at no stage
objected to the vesting of the property in the Hospital. Although
application for probate was made, the State was not a party respondent.
In fact, mutation was made in favour of the hospital far back to which
the executors never objected. In the circumstances, on the demise of the
testatrix the property vested in the executors who assented to the legacy F
in favour of the Hospital and the hospital was not a beneficiary, but a full
owner of the property, therefore, the eviction proceedings were
maintainable under the 1973 Act. 1733-C-F)

2.4. During the lifetime of CK lease deed was executed in favour of G
respondent No. l for ten years. By virtue of Clause 8 providing for renewal
and not for extension of lease respondent no. I was required to apply for
renewal which he never did. The so-called application for renewal merely
states that there was a lease deed and on its expiry, the lessee would
continue. On expiry of the lease, respondent No. l was in wrongful and
illegal use and occupation of the property in the nature of unauthorized H
726 SUPREME COURT REPORTS [2004] 3 S.CR.

A 9ccupation and as such the competent authority was right in passing the
impugned order of eviction under the 1973 Act. 1733-H; 734-A-BI

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1257 of
1999.

B From the Judgment and Order dated 28.4.98 of the Punjab and Haryana
High Court in. C.W.P. No. 2959 of 1984.
WITH
C.A. No. 1265 of 1999.

C Ranjit Kumar, H.M. Singh, Ranbir Yadav, Anil Hooda, Kaushal Yadav,
Ms. Shabana Saifi, R.S. Suri, Ms. Anu Mohla Ri\ eev Sharma and Kishan
Datta for the appearing parties .

. The Judgment of the Court was delivered by
KAPADIA, J. Both the above civil appeals nise common question of
D law and fact and, therefore, they are disposed of by this common judgment.
For the sake of convenience. facts in Civil Appeal No.1257 of 1999 are
mentioned hereinbelow.
Late Sardarni Chanan Kaur widow of Sardar Triloki Nath Singh
(deceased) was the owner of a kothi and lands adme.1suring 90 kanals bearing
E khasra No.4971 situated at Circular Road, Kapurthala (hereinafter referred to
for the sake of brevity as "the said property"). It is not in dispute that late
Sardami Chanan Kaur was the owner of the said r roperty and that she had
executed a registered Will on 15.9, 1962, whereby she bequeathed the said
property to the State Government through Randhir Jagjit Hospital, Kapurthala
{hereinafter referred to for short as "the said Hospital). The bequeath in
F respect of the said property was made vide paragraph 2 of the Will which is
reproduced herein below:
"l bequeath my bungalow situated at Circular Road, Kapurthala, known
as kothi "S. Tirloki Nath Singh" to Randhir Jagjit Hospital, Kapurthala,
absolutely and for ever for the use of as a ward of the Hospital
G patients as and this estate should not be used or utilized for any other
purpos~ than described above. Area of the property is 90 kanals,
Khewat No. l /180, Khasra No.4971, consist; of 4 servant quarters, 2
)( .
garages, 2 kothries, langarkhana with veranc ah, 2 kothries, one dalan,
2 kothries, mawcshikhana, 6 kothries, 2 dahns, pacca well with iron
H persion well fitted, garden orchard, cultivated lands surmounted by
COMMR . .IALANDHAR DIVISION r. M.K. Al3ROL [KAPADIA . .i.]727

on North, Government landed prope11y south road, East Garden Diwan A
Ahudhya Dass West, landed propei-ty will not be sold or mOl1gaged
or disposed off in any ~er way. This property will remain in the
name of my late husband S. Triloki Nath Singh, for the maintenance
and improvement of this institution. The income derived from this
garde,n, landed properties etc. should be used en the up-keep and
maintenance and improvement."
B

-\ In the Will aforestated, the testatrix appointed three executors. On the
basis of the above Will, mutation no.3597 was made on 20.4.1970 in favour
of the said Hospital. On 15.6.1977, the said Hospital moved an application
before the Collector, Kapurthala under sections 4 and 5 of Punjab Public
Premises and Land (Eviction and Rent Recovery) Act, 1973 (hereinafter
c
referred to as "the 1973 Act") for eviction of Mohan Krishan Abro I, respondent
no. I herein, who was alleged to be an unauthorized occupant of the said
property. In the meantime, the said respondent instituted a title suit on
2.11.1977 stating that the testatrix had executed a registered lease deed dated
7.6.1962 in his favour and he was the lessee in continuous possession and D
I _.,. after the demise of the testatrix on 26.1 I .1962, he was a tenant in law and
under her legal representatives. In the said suit, respondent no. I alleged that
the state government has no connection with the property in dispute as the
Will was not probated and had not been acted upon. In the said suit, respondent
no. I herein sought a declaration that the state government was not the owner
of the said property. He also challenged the genuiness of the above Will and
E
prayed for perpetual injunction against the government from taking possession
of the said property under the provisions of the 1973 Act. In the said suit, the
government submitted that the proceedings for eviCtion of respondent no. I
from the property were pending before the competent authority under the
1973 Act and, therefore, the suit was barred under sections 10 and 15. It was F
also pleaded that respondent no. I herein had no locus standi to challenge its
title as the said respondent was a lessee under the lease which stood expired
on 7.6.1972.

At this stage, it may be noted that on 25. I0.1978, the competent authority
found that the property had vested in the said Hospital; that the said property G
was a public premises under the 1973 Act; that the ownership of the property
' ""- stood transferred to the Hospital. under the Will of Smt. Chanan Kaur; that
the first respondent herein was a lessee under lease dated 7.6.1962; that the
lease was for IO years; and on expiry of the lease on 7.6.1972, respondent
no. I was a trespasser. The competent authority further found that the lease
H
-I
I

728 SUPREME COURT REPORTS [2004] 3 S.C.R.

A was not renewed. Accordingly, the impugned order of eviction was passed by "'·
the competent authority against respondent no. I declaring him to be
unauthorized occupant of the premises. Being aggrieved by the order of
eviction, respondent no. I preferred appeal to the Commissioner under section
9 of the 1973 Act. By judgment and order dated 8.5.1984, the appeal was
dismissed.
B
During this period, the title suit instituted by respondent no. I being suit
no.124 of 1977 came to be decreed on 15.1.1979 by Senior Sub Judge,
t- .
Kapurthala who took the view that respondent no. I was a lessee and he was
entitled to maintain the said suit. The trial Court further held that on the death
c of testatrix on 26.11.1962, the said property vested in the executors and not
in the State and, therefore, the proceedings under the 1973 Act were not
maintainable. Being aggrieved, the government preferred Civil Appeal No.29
of 1979 before the lower appellate court which found that respondent no. I
had no locus standi to bring the title suit; that the State was a beneficiary
under the Will and on the death of the testatrix, the said property had vested
D in the State as a legatee to which respondent no. I cannot raise any objection
as he had no right to challenge the title of the legatee under the Will. The ....
lower appellate Court further found that the executors of the Will had never
objected to the vesting of the property in the State and the executors never
came forward with any objection to such vesting even after the demise of the
testatrix and. therefore, by their conduct, the executors had assented to the
E
perfection of the title in the State. It was held that as between respondent no. I
herein and the appellant, no question of title was involved and the only
question was whether respondent no. I was in authorized possession of the
property as claimed by him and since no question of title was involved, the
Civil Court had no jurisdiction to decree the suit. Accordingly, the lower
F appellate Court dismissed the suit filed by respondent no.I on 26.4.1983.

Aggrieved by the order of eviction passed under the 1973 Act and by
the dismissal of the suit by the lower appellate Court, respondent no. I herein
approached the High Court by Civil Writ Petition No.2959 of 1984 and by
Regular Second Appeal No. 1263 of 1983 respectively. Both the proceedings
G were tagged together and by common impugned judgment, the High Court
came to the conclusion that the said property did not vest in the said Hospital
~
in terms of the clause 2 of the Will under which the property vested in the -i

executors who were required to maintain a ward in the above hospital from
the income arising out of the garden and other landed properties of the
H testatrix. The High Court fu1iher found that the said Hospital was only a
COMMR . .IALANDHAR DIVISION v. M.K. ABROL [KAPADIA, .l.]729

beneficiary under clause 2 of the Will and since under section 211 of the A
Indian Succession Act, 1925 (hereinafter referred to as "the 1925 Act), the
property had vested in the executors, the eviction proceedings under the 1973
Act were not maintainable. However, in view of section 15 of the 1973 Act,
the High Court held that the suit filed by respondent no. I was not maintainable
and consequently, the High Court dismissed the secoi1d <lppeal preferred by
respondent no. I herein while it allowed Civil Writ Petition No.2959 of 1984 B
filed by respondent no. I and accordingly set aside the order of eviction
f -\ passed under the 1973 Act. Aggrieved, both sides have come by way of civil
appeals to this Court.

Mr. H.M. Singh, learned counsel for the appellant submitted that the C
only question which arises for determination is whether the said property
vested in the executors on the death of the testatrix and not as to whether the
executors were required to obtain a probate. In this connection it was urged
that under section 211, the property vests in the executors by virtue of the
Will and not by virtue of the probate. On the demise of the testatrix, the
property vested in the executors. According to the learned advocate, the word D
j -I 'vesting' in section 211 was only for the purposes of representation and it did
not refer to vesting of beneficial interest in the property in the executors.
Learned counsel submitted that under the Will, the said property was
bequeathed to the hospital. It was the desire of the testatrix that the said
property shall be used as a ward in the hospital in the name of her late
husband. While interpreting the Will, it was urged, that the Court must sit in
E
the armchair of the testatrix and the said Will has to be interpreted in the light
of her desire expressed therein. It was urged that the High Court had erred
in holding that the ownership of the demised premises did not vest in the said
Hospital; that the said Hospital was only a beneficiary under the Will and,
therefore, the said demised property did not constitute public premises under F
section 2( c) of the 1973 Act. It was urged that a bare reading of clause 2 of
the Will shows that the said property was bequeathed absolutely in favour of
the said Hospital so that a ward could be set up in that hospital in the name
of the deceased husband of the testatrix. It was next contended that even
assuming for the sake of argument that the above finding of the High Court G
was correct, learned counsel submitted that the words "public premises" used
in section 2(e) of the 1973 Act have been defined to mean inter a/ia as the
premises belonging to the State Government. It was urged that the words
'belonging to' should be read in the widest possible sense and if so read they
would include beneficial interest in the property in favour cf the State
Government and consequently, the property in dispute would fall in the H
730 SUPREME COURT REPORTS (2004] 3 S.C.R.
...
A category of public premises under the 1973 Act. Learned advocate for the
appellant next urged that on 7.6.1962, the deceased Smt. Chanan Kaur had
let out the said property on lease to respondent No. I herein for ten years and
the lease expired on 7.6.1972; that there was no renewal of the said lease and,
therefore, respondent No. I was in wrongful and illegal use and occupation of
the said property, in the nature of u.nauthorized occupation after 7.6.1972,
B and, therefore, the eviction proceedings were maintainable under the 1973
Act. It was urged that the High Court was right in dismissing the suit filed
1
by respondent No. I in view of section 15 of the 1973 Act. /-

Per contra, Shri Ranjit Kumar, learned senior counsel appearing on
c behalf of respondent No. l submitted that clause 2 of the said Will refers to
bequest in favour of the said Hospital only for the specific use of the property
as a ward and, therefore, the said Hospital was only a beneficiary under the
Will and not the owner and, therefore, the eviction proceedings under the
1973 Act were not maintainable. It was contended that a bare perusal of
clause 2 of the Will shows that a limited right in the property was bequeathed
D to the hospital. In this connection, it was further contended that the last
.y- •
sentence of clause 2 of the Will indicates that the said property was to be
maintained out of the income from the landed property of the testatrix, which
circumstance shows that the hospital was only a beneficiary. It was urged
that mutation of the property in the name of the appellant in the revenue
records did not confer title on it. Alternatively, it was submitted that the
E
matter refers to complicated questions of title and, therefore, the matter was
not triable under the provisions of the 1973 Act. Learned counsel for
respondent No. I next contended that in the present case the lease was executed
on 7.6.1962 by the constituted Attorney of Smt. Chanan Kaur (testatrix) for
ten years and under the lease respondent No. I could make constructions, and J..
F pursuant thereto, respondent No. I had constructed a factory. Under clause 8,
it was urged that the right of renewal was given to respondent No. I. In this
connection, it was urged that correspondence had taken place in 1972 between
the parties and by letter dated 22nd May 1972, respondent No. I had sought
renewal of the lease. It was contended that request for renewal was made
both to the executors as well as to the appellant to which neither replied. It
G was submitted that in any event, clause 8 provided for automatic renewal
and, therefore. there was no need to make an application for renewal. In the ~ '
circumstances, it was urged that respondent no. I cannot be said to be in
unauthorized occupation of the property. It was contended that respondent
No. I t.ad leasehold rights .in the property prior to the Will and even prior to
H the demise of the testatrix and consequently, the suit filed by respondent
COMMR. JALANDHAR DIVISION " M.K. ABROL [KAPADlA ..J.]731

No.1 in the civil court was maintainable and the lower appellate court had A
erred in holding that respondent No.1 had no locus standi to challenge the
title of the State. It was submitted that the said property was subject to lease
executed before the Will coupled with automatic renewal and, therefore, the
possession of the property on expiry of the lease cannot be termed as
unauthorized under the 1973 Act. In the.,.circumstances, the High Court was B
right in coming to the conclusion that respondent No. I cannot be said to be
in unauthorized occupation of the premises. , . "

• ~
I
Lastly, it was urged on behalf of respondent No. I that under section
211 of the 1925 Act, the Will which is not probated cannot confer title on
the legatee. He ~ubmitted that in the present case, the executors had applied
for probate which was refused. It was urged that under section 211 read with c
section 213 of the 1925 Act, the said property had vested in the executors
and not in the State and in the absence of probate/letters of administration,
the State had no right to administer the estate of the deceased testatrix,
including right of action under the 1973 Act.
The first point which arises for determination is whether the said Hospital D
was the owner or the beneficiary in terms of clause 2 of the Will? Clause 2
) ... of the Will unequivocally states that the testatrix bequeaths her bungalow to
the said Hospital absolutely and forever. The very first sentence of clause 2
indicates that a complete bequest was made in favour of the said Hospital
which was to operate for all times in future. Further clause 2 stipulates that E
the property was to be used as a ward of the hospital and for no other
purpose. Section 87 of the 1925 Act stipulates that intention of the testator
shall be effectuated as far as possible. In the matter of interpretation of Wills,
the Cou11 has to look at the wishes of the testator indicated therein. In the
present case, the testatrix wanted her bungalow to be bequeathed for all times
to the government hospital and she wanted it to be used as a ward of the F
hospital to be named after her late husband. She further directed that the
income derived from the surrounding garden and her landed properties should
be used for maintenance and improvement so that in future the continuity of
the said ward in the hospital is not adversely affected for want of funds. In
our view, the High Court erred in holding that the said Hospital was a
G
beneficiary and not the owner. In the circumstances, the said property
constituted public premises under section 2(e) of the 1973 Act. It was however
t '\.( urged on behalf of respondent No. l that the said property did not vest in the
appellant; that under section 21 l of the 1925 Act, it had vested in the executors
who had applied for probate but which was refused by the testamentary
court, and, therefore, the said property never vested in the appellant. We do H
732 SUPREME COURT REPORTS [2004] 3 S.C.R.

A not find any merit in th is argument. Sections 211 and 213 of 1925 Act read
as follows:
"Section 211.Character and property of executor or
administration as such.-( 1) The executor or administrator, as the
case may be, of a deceased person is his legal representative for all
B purposes, and all the property of the deceased person vests in him as
such.
(2) When the deceased was a Hindu, Mohammadan, Buddhist,
Sikh, Jaina or Parsi or an exempted person, nothing herein contained
shall vest in an executor or administrator any property of the deceased
C person which would otherwise have passed by survivorship to some
other person.
Section 213. Right as executor or legatee when established.-( 1)
No right as executor or legatee can be established in any Court of
Justice, unless a Court of competent jurisdiction in India has granted
probate of the Will under which 'the right is claimed, or has granted
D letters of administration with the Will or with a copy of an
authenticated copy of the Will annexed.
(2) This section shall not apply in the case of Wills made by
Mohammadans or Indian ~hristians and shall only apply
(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina
E
where such Wills are of the classes specified in clauses (a) and
(b) of section 57; and
(ii) in the case of Wills made by any Parsi dying, after the
commencement of the Indian Succession (Amendment) Act, 1962
(16 of 1962) where such Wills are made within the local limits
F of the ordinary original civil jurisdiction of the High Courts at
Calcutta, Madras and Bombay, and where such Wills are made
outside those limits, in so far as they relate to immovable property
situated within those limits."
A bare reading of section 211 shows that the property vests in the
G executors by virtue of the Will and not by virtue of the probate. Will gives
property to the executor; the grant of probate is only a· method by which the
law provides for establishing the Will. In the case of Kulwanta Bewa v.
Karamchand, reported in AIR (1938) Calcutta 714 it has been held that
section 211 provides that the estate of the deceased vests in the executor; that
H the vesting is not of the beneficial interest in the property; but only for the
purposes of representation. In the case of Meyappa Chetty v. Supramanian
COMMR. JALANDHAR DIVISION r. M.K. ABROL [KAPADIA . .I.] 733

Chetty repo11ed in (43 Indian Appeals 113], the Privy Council has held that A
an executor derives his title from the Will and not from probate. The personal
property of the testator (including right of action) vests in the executor(s) on
the death of the testator. For purposes of deciding this matter, section 336 of
the Act is also relevant as it provides for assent of the executor to the legacy
after the death of the testator. It provides that an executor gets divested of his B
interest as an executor from the death of the testator when he assents to a
specific legacy. Section 213 acts as a bar to the establishment of rights under
the Will by an executor or a legatee unless probate or letters of administration
have been obtained. This bar comes into play only when a right as an executor
or a legatee under Will is sought to be established. However an un-probated
Will can be admitted in evidence for collateral purposes in any other C
proceedings apart from a probate proceedings. (See: Cherichi v. lttianam,
reported in AIR (2001) Kerala 184). Therefore, on the demise of the testatrix,
the said property vested in the executors. The question which arises for
detennination on the facts of this case is whether the executors assented to
the vesting of the said property in the Hospital in terms of section 336 of the D
1925 Act. In this case, the facts show that the executors never objected to the
vesting of the said property in the hospital. Three executors were appointed
I -.
under the Will. They never objected to the legacy. Several meetings of the
executors had taken place both before the death of the testatrix on 26th
November 1962 and even thereafter for updating the accounts and to obtain
probate and at no stage they objected to the vesting of the property in the E
Hospital. Although application for probate was made, the State was not a
party respondent. In fact, mutation was marle in favour of the hospital as far
back as 2nd April 1970 to which the executors never objected. In the
circumstances, the executors had assented to the legacy in favour of the
Hospital. Looking to the terms of clause 2 of the Will, we hold that the
hospital was not a beneficiary, but a full owner of the property; that on the F
demise of the testatrix the property vested in the executors who assented by
their conduct to the legacy of the demised premises in the hospital and
consequently, the eviction proceedings were maintainable under the 1973
Act.
G
The only question, therefore, which remains to be decided is whether
the competent authority was right in coming to the conclusion that respondent
• y No. I was in unauthorized occupation of the property as defined under section
3(b) and, therefore, liable to be evicted under section 5 of the 1973 Act?

As stated above, during the lifetime of Smt. Chanan Kaur, a lease was H
734 SUPREME COURT REPORTS (2004] 3 S.C.R.

A executed in favour of respondent No. I on 7.6.1962 for ten years. Clause 8
provides for renewal and not for extension of lease. Hence, respondent no. I
was required to apply for renewal which he never did. The so-called application
dated 22.5.1972 for renewal merely states that there was a lease deed dated
7.6.1962 and on its expiry, the lessee would continue. In this case, the intention
B of the testatrix under the Will was to bequeath her bungalow to the hospital
absolutely and free of all encumbrances and for all times. She wanted her
bungalow to be used as a ward in the government hospital. In the
circumstances, we are of the view that on expiry of the lease, respondent
No. I was in wrongful and illegal use and occupation of the property in the
nature of unauthorized occupation and, therefore, the competent authority
C was right in passing the impugned order of eviction under the 1973 Act.
Before concluding we may point out that during the pendency of
proceedings before this Court, an intervention application was made on behi!lf
of Smt. Reba Kapur (respondent no.2). That 3pplication was granted by rhe
earlier order passed by this Court. Shri Rajiv Sharma, learned counsel
D submitted on behalf of respondent No.2 (intervener) that if the appellant
herein succeeds, it may proceed against respondent No.2 under the 1973 Act.
He contended that the property in question surrounding the bungalow is quite
substantial, a portion whereof is in possession of respondent No.2. We do not
wish to go into the arguments advanced on behalf of respondent No.2 as
E eviction order, if any, against respondent No.2 is not the subject matter of
challenge before us. It is not even clear as to whether any such proceedings
have been taken against respondent No.2. In the present case, we are only
concerned with the order of eviction passed against respondent No. I by the
competent authority under the 1973 Act. Hence, we are confining our judgment
to the facts of this case.
F
for the aforestated reasons, we hold that the High Court was right in
dismissing Regular Second Appeal No.1263 of 1983 filed by respondent
No. I. However, it had erred in allowing Civil Writ Petition No.2959 of 1984
filed by respondent no.1 and in setting aside the order of eviction under the
1973 Act. We accordingly set aside judgment under challenge and allow
G Civil Appeal No.1257 of 1999 filed by the State Government and dismiss
Civil Appeal No.1265 of 1999 filed by respondent No. I. There shall be no
order as to costs. "-( .
N.J. C.A. No. 1257/99 allowed.
C.A. No. 1265/99 dismissed.
H