SHRI SHIVAJI EDUCATION SOCIETY, AMRAVATI THROUGH ITS PRESIDENTversusOMPRAKASH S/O DINKAR DESHMUKH & ORS.

                         [2021] 7 S.C.R. 1117                              1117


              SHRI SHIVAJI EDUCATION SOCIETY,                              A
             AMRAVATI THROUGH ITS PRESIDENT
                                   v.
       OMPRAKASH S/O DINKAR DESHMUKH & ORS.
                   (Civil Appeal No. 6981 of 2021)                         B
                        NOVEMBER 22, 2021
  [HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
       Wills – Bequest made under the Will – Nature of – Testator
executed Will (in respect of property) in favour of his wife (plaintiff
                                                                           C
no.1) who in turn gifted the property in question to appellant
(plaintiff no. 2) – Contention of defendants that the gift deed executed
by plaintiff no.1 was null and void in view of a limited life estate
conferred upon her under the Will – Held: While the trial Court
took the view that under the Will, the testator’s wife was given only
a limited right of enjoyment for life, the First Appellate Court held      D
that what was bequeathed was full rights of enjoyment, including
the right to transfer – High Court did not overturn the finding of
fact recorded by the First Appellate Court – Instead, the High Court
wrongly proceeded to analyse sub-sections (1) and (2) of s.14 of
the Hindu Succession Act, to come to the conclusion that the limited
                                                                           E
estate did not get enlarged into full ownership – The question of
fact whether what was conveyed under the Will, was only a limited
right of enjoyment or full ownership, was settled by the First
Appellate Court in favour of the plaintiffs – This finding was not
held by the High Court to be perverse – Though the High Court
thought that one of the substantial questions of law arising for           F
consideration was whether testator’s wife was full owner or limited
owner, the High Court chose to answer this question not on the
basis of the recitals contained in the Will but on the basis of the
wrong understanding of an inapplicable Judgment of this Court –
High Court overlooked the fact that in a civil dispute, the First
                                                                           G
Appellate Court is a final Court of fact and law and the High Court’s
interference u/s.100 is only on a substantial question of law – Once
the First Appellate Court had found that the recitals contained in
the Will clearly conveyed full ownership, there was no occasion for
the High Court to go into s.14 of the Hindu Succession Act at all –
Further, the First Appellate Court was concerned with two regular          H
                                  1117
1118             SUPREME COURT REPORTS                            [2021] 7 S.C.R.


 A     first appeals, one filed by the defendants (R.C.A No. 408 of 1986)
       and another filed by the appellant / plaintiff no.1 (R.C.A No. 416 of
       1986) – First Appellate Court dismissed R.C.A No.408 of 1986 and
       allowed R.C.A No. 416 of 1986 – The defendants chose to file only
       one second appeal and that was against the decree in RCA No. 408
       of 1986 – Decree in R.C.A No. 416 of 1986 was allowed to attain
 B
       finality – Even on this ground, the High Court ought to have
       dismissed the second appeal – Judgment of High Court set aside –
       Hindu Succession Act, 1956 – s.14 – Code of Civil Procedure, 1908
       – s.108.
             Sadhu Singh v. Gurudwara Sahib Narike and Ors.
 C           (2006) 8 SCC 75 : [2006] 5 Suppl. SCR 799 – held
             inapplicable.
                                Case Law Reference
       [2006] 5 Suppl. SCR 799            held inapplicable          Para 11
 D           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6981
       of 2021.
             From the Judgment and Order dated 14.10.2014 of the High Court
       of Judicature at Bombay, Bench at Nagpur in Second Appeal No.154 of
       1992.
 E
            Satyajit A. Desai, Gaurav Chaudhary, Siddharth Gautam,
       Ms. Anagha S. Desai, Advs. for the Appellant.
              Rahul Chitnis, Aaditya A. Pande, Chander Shekhar Ashri, Advs.
       for the Respondents.
 F           The following Order of the Court was passed :
                                      ORDER
             1. Leave granted.
             2. Aggrieved by the Judgment and decree dated 14.10.2014 passed
 G     by the High Court of Judicature at Bombay, Nagpur Bench, allowing a
       second appeal and reversing the Judgment of the First Appellate Court,
       which itself was a reversing Judgment, plaintiff No. 1 in a suit for recovery
       of possession and for past and future mesne profits, has come up with
       the above appeal.

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 SHRI SHIVAJI EDUCATION SOCIETY, AMRAVATI THROUGH ITS                          1119
 PRESIDENT v. OMPRAKASH S/O DINKAR DESHMUKH & ORS.

      3. We have heard Mr. Gaurav Chaudhary, learned counsel for the           A
appellant and Mr. Rahul Chitnis, learned counsel appearing for respondent
Nos. 1 and 4.
      4. The suit property is a house, which originally belonged to one
Shri Kashirao Sampatrao Deshmukh. The said Kashirao Sampatrao
Deshmukh died on 1.05.1977, leaving behind him surviving, his wife Smt.        B
Shevantabai.
        5. Contending that after the death of her husband, Shevantabai
gifted the suit property to the appellant herein under a registered Gift
Deed dated 9.04.1981 and that the defendants who came into the house
under the pretext of helping Smt. Shevantabai and her husband in their         C
old age, slowly took complete control of the suit property and drove Smt.
Shevantabai out, the appellant herein and Smt. Shevantabai joined together
to file a civil suit in Regular C.S No. 24 of 1982 in the Court of the Civil
Judge (J.D.), Akot. The suit was for recovery of possession. The
defendants in their written statement, set up a Will allegedly executed by
Shri Kashirao Sampatrao Deshmukh on 4.05.1976. It was the contention           D
of the defendants that under the said Will, Smt. Shevantabai was granted
only a life estate and that after her lifetime, the property was to devolve
upon the first defendant. The defendants claimed that the gift deed
executed by Shevantabai was null and void in view of a limited life estate
conferred upon her under the Will.                                             E
       6. The trial Court, by a Judgment and decree dated 17.12.1986
held
       (i) that the Will set up by the defendants was proved; (ii) that
Shevantabai who was plaintiff No. 2 was bequeathed only a right of
enjoyment during her life time and (iii) that therefore, the Gift Deed         F
executed by Smt. Shevantabai in favour of the appellant herein who
was the plaintiff No.1 was not valid and binding on the defendants.
Accordingly, the trial Court dismissed the claim of the appellant herein,
but granted a decree in favour of plaintiff No. 2, as she was alive at that
time and admittedly she was entitled to possession and enjoyment of the        G
suit property during her lifetime.
       7. Aggrieved by the decree of possession granted in favour of
Smt. Shevantabai (plaintiff No. 2), the defendants filed a regular first
appeal in R.C.A No. 408 of 1986. Aggrieved by the findings regarding
the nature of the bequest under the Will and the validity of the Gift Deed,
                                                                               H
1120             SUPREME COURT REPORTS                            [2021] 7 S.C.R.


 A     the appellant herein (plaintiff No. 1) filed an independent first appeal in
       R.C.A No. 416 of 1986.
              8. The Additional District Judge, Akola, by a Judgment and decree
       dated 22.01.1992 dismissed the appeal filed by the defendants and allowed
       the appeal filed by the appellant herein, holding that the Will set up by the
 B     defendants clearly gave Shevantabai all rights of enjoyment including
       the right to dispose of the same and that, therefore, she was the full
       owner of the suit property entitled to gift it to the appellant herein.
             9. Though the Judgment of the First Appellate Court was a
       common Judgment in two first appeals, namely, RCA Nos. 408 and 416
 C     of 1986, the defendants filed only one second appeal in SA No. 154 of
       1992, on the file of the High Court of Judicature at Bombay, Nagpur
       Bench. The said appeal was allowed by the High Court by a Judgment
       and decree dated 14.10.2014, holding that what was granted in favour
       of Shevantabai was only a life estate and that her estate could not have
       enlarged under Section 14(1) of the Hindu Succession Act, 1956. It is
 D     against the said Judgment of the High Court that the appellant herein
       who was plaintiff No.1 has come up with the above appeal.
              10. Before we proceed further, we must take note of the fact that
       the plaintiff No. 2 Smt. Shevantabai died on 20.08.2005. Admittedly,
       Shevantabai did not leave behind any legal heir to succeed. The first
 E     defendant was also not a legal heir, but was described in the Will set up
       by him, as the nephew of the testator.
              10. Keeping the above facts in mind, let us now come to the core
       issue on hand. All the three Courts proceeded on the basis that the
       execution of the Will dated 4.05.1976 by Shri Kashirao Sampatrao
 F     Deshmukh stood proved. It is only on the question of the nature of the
       bequest made under the Will that each of the three Courts took different
       views. While the trial Court took the view that under the Will, the testator’s
       wife (plaintiff No. 2) was given only a limited right of enjoyment for life,
       the First Appellate Court held that what was bequeathed was full rights
 G     of enjoyment, including the right to transfer. The First Appellate Court
       highlighted the most important recital in the Will to the effect “as my
       wife Smt. Shevantabai Kashirao Sampatrao Deshmukh has no other
       legal heirs, after her death whatever property remains that property
       shall go to my near nephew…..”. The words “after her death whatever

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    SHRI SHIVAJI EDUCATION SOCIETY, AMRAVATI THROUGH ITS                      1121
    PRESIDENT v. OMPRAKASH S/O DINKAR DESHMUKH & ORS.

property remains” were clearly indicative of the fact that the bequest        A
was not of a life estate but was complete.
       11. Interestingly, the High Court did not overturn the finding of
fact recorded by the First Appellate Court. Instead, the High Court
wrongly proceeded to analyse Sub-Sections (1) and (2) of Section 14 of
the Hindu Succession Act, to come to the conclusion that the limited          B
estate did not get enlarged into full ownership. The question of fact
whether what was conveyed under the Will, was only a limited right of
enjoyment or full ownership, was settled by the First Appellate Court in
favour of the plaintiffs. This finding was not held by the High Court to be
perverse. Though the High Court thought that one of the substantial
questions of law arising for consideration was whether Smt. Shevantabai       C
was full owner or limited owner, the High Court chose to answer this
question not on the basis of the recitals contained in the Will but on the
basis of the wrong understanding of an inapplicable Judgment of this
Court in Sadhu Singh vs. Gurudwara Sahib Narike and Ors.1 The
High Court overlooked the fact that in a civil dispute, the First Appellate   D
Court is a final Court of fact and law and the High Court’s interference
under Section 100 is only on a substantial question of law. Once the First
Appellate Court had found that the recitals contained in the Will clearly
conveyed full ownership, there was no occasion for the High Court to
go into Section 14 of the Hindu Succession Act at all. Therefore, the
Judgment and decree of the High Court are clearly erroneous and liable        E
to be set aside.
      12. There is also one more reason why the High Court could not
have interfered with the Judgment of the First Appellate Court. As we
have pointed out earlier, the First Appellate Court was concerned with
two regular first appeals, one filed by the defendants and another filed      F
by the appellant herein who was plaintiff No. 1. The First Appellate
Court dismissed R.C.A No. 408 of 1986 filed by the defendants and
allowed R.C.A No. 416 of 1986 filed by the appellant herein. The
defendants chose to file only one second appeal and that was against
the decree in RCA No. 408 of 1986. The decree in R.C.A No. 416 of             G
1986 has been allowed to attain finality. Even on this ground, the High
Court ought to have dismissed the second appeal.


1
    (2006) 8 SCC 75                                                           H
1122             SUPREME COURT REPORTS                      [2021] 7 S.C.R.


 A            13. In view of the above, the appeal is allowed, the impugned
       Judgment and decree of the High Court are set aside. The suit filed by
       the appellant along with Smt. Shevantabai will stand decreed as prayed
       for, as decided by the First Appellate Court in its Judgment dated
       22.01.1992. There will be no order as to costs.
 B
       Bibhuti Bhushan Bose                                     Appeal allowed.




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