Mon Mohan Singh vs Raghu Nandan Singh and Others

Manohar Lall, J.—This is an appeal by Mon Mohan Singh, who has been substituted in this appeal in place of the deceased plaintiff, against the decision of the learned Subordinate Judge of Purulia dated 8lst May 1987, by which he dismissed the suit instituted by the original plaintiff for a declaration of her title to the entire Raj Jaypur and for recovery of possession thereof together with mesne profits.

Various issues of facts and law were raised in the Court below by the defendants who claimed title to remain in possession of the Raj as legatees under a will executed by the late Baja in their favour. But with the exception of one question they have all been decided in favour of the plaintiff. The sole question which remains for determination in this appeal is whether the will executed by the late Baja, who was the last holder of this Raj, in favour of the respondents was a valid will in view of the provisions of the Chota Nagpur Encumbered Estates Act (6 of 1876) hereinafter to be referred to as the Act in the following circumstances.

It is common ground that the Raj was taken charge of by the Court of Wards under the provisions of the Court of Wards Act (Act 9 of 1879) but subsequently in October 1916, when it was found that Baja Bhikhambar Singh, the last holder of the Raj, had become heavily indebted, the Raj came under the management of the authorities as provided by the Act. The Baja executed a will on 24th September 1919, by which he bequeathed 8 annas share in it to his fourth wife Rani Chandrabali and the remaining 8 annas to the first defendant who has now been found to be the illegitimate son of the Baja in the sense that he was not his real aurash son. The Baja died on'' 25th February 1921, and the Raj which has-been found to be governed by the rule of impartibility was released from the charge-as an encumbered estate on 6th March 1931; and handed over to the two legatees under the will which had been probated by the-decision of the High Court in 1925. Rani Chandrabali, one of the legatees, died on 21st March 1934. She was the last survivor of the four wives of the Raja, and therefore the plaintiff as the daughter of the second wife instituted the present suit on 13th May 1986, on the ground that the succession then-opened out to her, she being the eldest surviving member in the family of the Baja. Defendant 2, as the daughter of Rani Chandrabali, is in possession of the 8 annas share which had been bequeathed by the will to her mother.

The learned Subordinate Judge upon a consideration of the various provisions of the Act and in particular relying-upon the decision of the Calcutta High Court in Protap Chandra Deo Dhanbal Deb Vs. Sri Raja Jagadish Chandra Deo Dhabal Deb, , rejected the contention advanced on behalf of the plaintiff that the Rajah had no right to make a will. Hence the appeal by the plaintiff.

As has been observed by Viscount Haldane who delivered the judgment of the Board in Raja of Pachete v. Kumud Nath AIR 1918 P.C. 41, the language of the Act is obscure but the preamble is material in order to construe its various provisions. The preamble defines the purpose of the Act which is intituled "Chota Nagpur Encumbered Estates Act" for the "relief of holders of land in Chota Nagpur who may be in debt, and whose immovable property may be subject to mortgages, charges and liens." The Act by its various sections makes careful provisions for the management of the estate while it is in charge of the authorities appointed under the Act. Section 3 provides that the holder and his heir shall be-incompetent to mortgage, charge, lease or alienate their immovable property, or to grant receipts for rents or profits and shall also be incompetent to enter into any contract which may involve them in pecuniary liability. The manager has by Section 4 been vested with large powers of management and for liquidating the debts due from the holder. By Section 8 he is entitled to determine the amounts of principal justly due to the creditors of the holders of the property and to the mortgagees on it. By Section 9 he may enquire into the consideration given for leases or rent free and maintenance grants (the grants were included in the section by an amendment made in 1909) and, regarding leases or grants of a later period if it appears insufficient, cancel them or cause the person so in possession to pay such consideration as the manager may think fit.

By Sections 17 and 18 the manager has been granted the power to lease and to mortgage and sell (in the latter cases with the assent of the Commissioner). As observed by Viscount Haldane in Raja of Pachete v. Kumud Nath AIR 1918 P.C. 41:

After considering the Act as a whole, their Lordships have arrived at the conclusion that the primary intention to be collected from its language is that of providing, by a measure of local application, for the relief of the burdens affecting the land within Chota Nagpur owned by a class of landholders there.

By Section 23 the jurisdiction of the civil Courts is saved with regard to the determination of the question of the succession which it was admitted before us must obviously include testamentary as well as non-testamentary succession. Such being the purpose of the Act, namely to vest the management of the estate in the manager appointed under the Act with the object of relieving the burdens affecting the land owned by the holder it is provided in the Act that after the holder has been relieved of the burdens the estate shall be restored to him if he is alive at the time or to his heir (see Section 12).

But in order to provide against the contingency that the holder may not again burden the estate after it is released to him and thus defeat the very object of the Act provision has been made that if the holder again burdens the estate or attempts to burden it the Collector may with the approval of the Commissioner again resume possession of the estate, but the estate shall thereafter not be restored to the holder even after the new debts have been paid off (see Section 12, proviso).

The question, therefore, is whether by reason of the words used in Section 3 of the Act, namely,

so long as such management continues the holder of the said immovable property and his heir shall be incompetent to mortgage, charge, lease or alienate their immovable property or any part thereof or to grant valid receipts for the rents and profits arising or accruing therefrom,

The holder is prohibited from making a will. The argument advanced by the appellant was that if the scheme of the Act is carefully examined the holder should be held to be incompetent to make a will firstly because the word ''heir'' has been used in the Act as meaning an heir on intestacy and the word devisee or legatee is not to be found in it and is repugnant to the whole scheme of the Act; secondly, because the word ''alienation'' used in Section 3 must include alienation by means of a will. It is needless to refer to the large number of cases cited by the learned advocate for the appellant which lay down that the owner of an impartible Raj, whether it is governed by the Mitakshara or the Dayabhaga School of Hindu law, is not debarred from making a will with respect to it, the reason for the rule so laid down being that the power of alienation by gift inter vivos carries with it a testamentary power. But the only question is whether the Act contemplates alienations which are prohibited by it as being alienations inter vivos or alienations by will also which come into operation only on the death of the testator.

It is argued on behalf of the respondent that although the word "alienation" ordinarily means alienation of all kinds, but applying the principle of ejusdem generis the general words in Section 3 following specific words and again being followed by specific words compel us to interpret the meaning of the word alienation as being an alienation inter vivos only. In my opinion this argument is sound. The preamble of the Act as already indicated is to give relief to the holders whose property may be subject to mortgages, charges and liens. All these three kinds of alienations are alienations inter vivos. The Act by its several provisions already referred to forbids the holder to create these kinds of alienations and empowers the manager to cancel these alienations.

It will be noticed that the word "lease" is not mentioned in the alienations in the preamble, but as the mangager has to administer the estate in the sense of paying off the liabilities and debts due on it he has been given power u/s 9 to enquire into the consideration for the leases and if they appear insufficient to cancel them. If the holder on the other hand during the course of the management creates a mortgage, charge, lien or grants a valid receipt for the rents and profits arising and accruing therefrom these acts of the holder are also avoided by Section 3. The combined effect of the provisions of Sections 3 and 9 as construed in the light of the preamble induces me to hold that the object is that the manager shall have unfettered power of management and control over the property so that he may apply the rents and profits of the land to speedily relieve the holder''s estate from the burdens created on it by the holder before the provisions of the Act were brought into operation for his benefit. The Act does not make the manager the holder of the estate but merely prohibits the holder in his own interest from exercising the acts of ownership so that they may not interfere with the wide powers given to the manager to manage the estate.

It must be admitted that a will speaks from the death of the testator and so long as the testator is alive the will is merely an expression of his intention how the property should devolve on his death. It is, there, fore, difficult to see how the mere execution of a will is an alienation of the property--as was sought to be contended at one stage of the argument--when it can in no way affect the possession of the estate by the manager. But a more serious argument was advanced that in any case a will amounts to an alienation operating at the time of the death of the testator and, therefore, it was argued that where the debts and liabilities due from the holder have not been paid off at that time the will would then amount to a disturbance of the possession of the manager and thus render several provisions of the Act nugatory. But the answer to this contention is that the possession of the manager is not at all affected by the succession to the estate created by the testator. The manager is required by the statute to continue in possession of the estate of the holder so long as the debts and liabilities are not paid off, and as provided by Section 12 must give up possession as soon as the debts and liabilities are paid off. The question as to who succeeds to the Raj is a question which can only be determined in the case of a dispute by the civil authorities as specially provided by Section 23. It may be observed that by an amendment made in 1909 the requirement that in all such suits the manager shall be a party has been omitted. It is obviously undesirable that such a serious question should be decided by the revenue authorities.

Again, I do not see what difficulty arises if the word ''heir'' is taken to mean an heir on intestacy only as contended for by the learned advocate for the appellant. It only means that the manager when he comes to relinquish the estate will relinquish it to the heir, and if somebody else has a better title as a devisee under a will that question will be determined by the civil Courts u/s 23 and such a person, if he is successful, will recover possession from the heir. But I am inclined to take the view that as the Act is obscure the word ''heir'' has been loosely used in the Act and may be taken to include a person who has a right to succeed in law to the holder.

In the present case I notice that the manager relinquished the estate to the legatees and not to the heirs only. Nobody has suggested that the present suit is incompetent by reason of the fact that the manager has relinquished the estate to the legatees. The question of title is always open to be decided by the civil Courts in a proper proceeding. An examination of the terms of Section 12A leads to the same conclusion. By Section 12A(4) the Deputy Commissioner has power to ascertain on enquiry (with a view to resume possession of the estate of the holder with the approval of the Commissioner) if the holder since the estate was restored to him has made or attempted to make any alienation or charge without the previous sanction of the Commissioner. But in the course of the enquiry, he is bound to consider and place on record all representations made by the person in whose favour such alienation or charge is made. A devisee under a will has no present right till the testator is dead. Now, can such a person make any representation to the Deputy Commissioner? Obviously not. This strongly suggests to my mind that the word alienation in this section means alienation inter vivos.

In the case reported in Protap Chandra Deo Dhanbal Deb Vs. Sri Raja Jagadish Chandra Deo Dhabal Deb, , a Division Bench of the Calcutta High Court examined the provisions of the Act with great minuteness and came to a similar conclusion and held that the restrictions as to the alienations mentioned in the provisions of the Act referred only to alienations inter vivos having present operation and not to testamentary dispositions. It was argued on behalf of the learned advocate for the appellant that the observations of the learned Judges of the Calcutta High Court were in the nature of obiter dicta because the will in that case was executed on 11th May 1905, about three months before the notification was made under the Act vesting his property in the manager.

I do not agree that these observations were obiter dicta because no matter when the will is made whether before or after the property went in charge of the manager under the Act the alienations would take effect at a time after the estate had come under the charge of the manager. I respectfully agree with these observations of the learned Judges of the Calcutta High Court.

In Mohammad Sayeed v. Muhammad Ismail (11) 33 ALL. 233, the question arose for decision whether a will (a gift at the time of death to a Mahomedan) was an alienation falling within the prohibition in Section 325A, Civil P.C. (Act 14 of 1882) which corresponds to Schedule 3, para. 11 of the present Code. In Schedule 3 provision is made for execution of decrees by the Collector. By Section 68 the Local Government may declare by notification in the local official gazette that in any local area the execution of decrees in cases in which the Court has ordered immovable properties to be sold shall be transferred to the Collector. Then by para. 11 of Schedule 3 it is provided that

so long as the Collector can exercise or perform in respect of the judgment-debtor''s immovable property, or any part hereof, any of the powers or duties conferred or imposed on him by paras. 1 to 10, the judgment-debtor, or his representative-in-interest shall be incompetent to mortgage, charge, lease or alienate such property or part except with the written permission of the Collector.

It will be noticed that the words which impose these restrictions on the judgment-debtor or hisreprosentative-in-interest during such time are exactly the same as in the provisions of the Act which we are considering. It was argued before the Division Bench of the Allahabad High Court that a will comes within the term ''alienate'' as mentioned in these words, but they overruled the contention in these words at p. 235:

We are unable to agree with this contention. The word ''alienate'' in our opinion was used ejusdem generis with the words preceding, namely mortgage, charge, lease, and manifestly contemplates a transfer which would have present effect and not a devise which can only have operation after the death of the testator. In this view the will was not void and the lady was not incompetent to make it.

This decision in my opinion helps a fortiori to construe the terms of Section 3 of the Act where it will be noticed the word alienate follows the words used in the Allahabad decision and is also succeeded by the words "to grant a valid receipt for the rents and profits arising or accruing therefrom" indicating to my mind that the import of the words "alienate" should be construed on the ejusdem generis principle. It may also be pointed out that whenever it is intended to restrict alienation by will or to prevent adoption of a ward it is expressly so provided, for instance in the Madras Court of Wards Act, Section 34(c) and (d) of Act 1 of 1902, in the Bengal Court of Wards Act 9 of 1879, Section 61, in the Bombay Act 1 of 1905, Section 38 and in Section 37, U.P. Court of Wards Act.

After this judgment was prepared I have come across the case in Hukum Chand v. Ran Bahadur Singh AIR 1924 P.C. 156. In that case their Lordships of the Judicial Committee had to construe the provisions of the Act in order to consider what are the position, legal status and rights of the manager appointed by virtue of the Act. Lord Shaw, of Dunfermline in delivering the judgment of the Board examined most of the provisions which I have examined above, namely Sections 2, 3, 10, 12, 13 to 18 and came to the conclusion at p. 213 that:

It is dear that the owner is disabled not only from acts of management but from mortgaging, charging, leasing or alienating the property, whereas on the other hand the manager is vested and alone vested with such powers.

The importance of this observation is that it indicates very strongly that the interpretation which I have endeavoured to put upon the meaning of the word alienation is correct. Again at p. 214 after referring to the effect of Sections 19,20 and 21, his Lordship observed:

In the opinion of the Board it is necessary to give very full and careful effect to the position of a manager vested under the Act, in the management of the property of the nature already described. It is, in their Lordships'' opinion, clear that the owner of such property is expressly disabled from making any effective contract with regard to it and it is equally clear that no other officer, whether political or departmental, could occupy the place, or enjoy or exercise the rights, of the disposal of the estate the management of which estate is vested in the manager and the manager alone.

This passage again shows that the Act is prohibiting the owner from making any effective contract with regard to his property. The execution of a will by the owner is in no sense any contract with regard to the property. For these reasons I agree that the learned Subordinate Judge has taken a correct view and hold that the Raja was not incompetent to make the will of 25th February 1921, by reason of any prohibition in the Act. Some argument was finally advanced on the question of mesne profits. The learned Subordinate Judge dealt with this matter under issue 10. He found that after the estate was released the legatees have been in possession and that defendant 1 and the mother of defendant 2 who died in March 1934, got their names mutated in the land registration department and they are in possession, since then. The plaintiff claimed mesne profits from 2lst March 1934 from the defendants when the succession opened out to the plaintiff, in their view. But as the plaintiff has not been able to establish his title no enquiry into the amount of mesne profits can be gone into in these proceedings.

I would dismiss the appeal with costs.

Harries G.J.

I agree. It was conceded by counsel for the appellant in this case that in the events that had happened Baja Bhikhambar Singh, the last holder of the Raj, could have disposed of the property by will but for the provisions of the Chota Nagpur Encumbered Estates Act. It was, however, strenuously argued that that Act deprived the Raja of the power to make a will and that the will which he made was, therefore, invalid.

It is to be observed that the Act does not expressly deal with testamentary power, but it was urged that the Raja''s power to make a will was taken away by Section 3 of the Act. That section provides that when the management of an encumbered estate is taken over u/s 2 of the Act the holder of the estate and his heir shall be incompetent to mortgage, charge, lease, or alienate their immovable property or any part thereof or to grant valid receipts for the rents and profits arising or accruing therefrom. It was contended that this provision expressly prohibited all forms of alienation and that it covered a devise of property by will.

There can be no doubt that a devise operates as an alienation of the property at the testator''s death; but it was urged on behalf of the respondents that this provision only prohibits alienation during the lifetime of the holder of the encumbered estate. The words appearing in a statute must be given their natural meaning whenever possible, but a restricted moaning must be given in cases where it is clear that such restricted meaning was intended. The word ''alienate'' in this provision follows the words "shall be incompetent to mortgage, charge, lease" immediately following them must be construed as alienation inter vivos. Following the phrase "alienate their immovable property or any part thereof" follow these words "or to grant valid receipts for the rents and profits arising or accruing therefrom." This latter provision applies to acts inter vivos because receipts for rents and profits can only be granted by the person who is the actual landlord or holder of the land. It will, therefore, be seen that the word ''alienate'' appears in a provision which otherwise applies to acts done in the lifetime of the holder or his heir.

The word "alienation" also appears in Section 12A of the Act, which provides for the continuance of certain disabilities after the restoration of the property to the owner thereof. Sub-section (1) provides that in which circumstances the owner shall not be competent without the previous sanction of the Commissioner (a) to alienate such property, or any part thereof, in any way, or (b) to create any charge thereon extending beyond his lifetime. The prohibition here is against alienation of the property in any way, and at first sight that is wide enough to cover not only alienations inter vivos but alienations by will. However, on consideration of the other Sub-sections of Section 12A, it appears tolerably clear that the prohibition against alienation in this section is directed against alienations inter vivos. The prohibition is against alienation without previous sanction of the Commissioner. As a devise of property does not operate as an alienation until the date of death, it is difficult to understand how previous sanction of the Commissioner could be obtained for such alienation. It is true that the Commissioner could be asked for his sanction to a proposed alienation by will; but such alienation might never take effect by reason of the revocation of the will or a transfer of the property inter vivos. Sub-section (4) of Section 12A provides that the Deputy Commissioner may, on obtaining information that the owner of the estate has made or attempted to make any alienation in contravention of that section, conduct an inquiry, and in that inquiry he has to hear any representations made by the holder and by the person in whose favour such alienation is alleged to have been made.

This, in my view, suggests that the alienation referred to in the section is an alienation inter vivos. The devisee has no interest in the property until the death of the testator, and the inquiry contemplated in Sub-section (4) could not be made upon the Deputy Commissioner obtaining information that the holder has made a will. There would be no person in whose favour an alienation had been made until the death of the testator and then it would be impossible for the Deputy Commissioner to hear any representation made by the holder of the estate who made the will. Sub-section (5) of Section 12A provides that if after inquiry the Deputy Commissioner is satisfied that the holder has made or attempted to make an alienation, he may request that the provisions of the Act be reapplied to the holder, and the provisions of the Act may be so applied and the manager re-appointed. This Sub-section also, in my view, contemplates an alienation inter vivos, because a will does not operate till death, and then it would be too late to reappoint the manager and vest in him the property of the holder. In my judgment the words "alienate" and "alienation" used in Section 12A mean alienation inter vivos, and in my view the same meaning must be given to the word "alienate" in Section 3 of the Act.

The preamble of the Act sets out its object and purpose and that is to relieve holders of land in Chota Nagpur who may be in debt, and whose immovable property may be subject to mortgages, charges and liens. The Act divests the holder of the property for the time being of all powers of management and vests the same in a manager appointed under the Act. The holder of the encumbered estates still remains the owner, but he cannot interfere with the management. To give the manager complete freedom of management, it was essential to take away from the holder all powers of mortgaging, leasing, charging or selling the land. Otherwise, it would be impossible for the manager to arrange satisfactorily for the payment of debts. A devise in a will could not possibly affect the management of the estate as it would not take effect until the death of the holder. Section 12 provides that the manager may continue in possession after the death of the holder until all the debts are paid, and then he must restore the property to the heir. It was urged that as the heir is mentioned in this section it is clear that the Act contemplated that the estate should in every case go to the heir, and such could not happen if the holder of the encumbered estate retained his testamentary capacity.

It is true that the word "heir" appears in a number of sections in the Act; but, in my view, there is nothing to suggest that the Legislature intended that in every case in which an encumbered estate was taken over under the Act the heir and the heir alone should be the person entitled to it on the death of the holder. Section 23 of the Act makes it clear that neither the manager, Deputy Commissioner or Commissioner have anything to do with deciding claims to succession and the jurisdiction of the Courts of Chota Nagpur in respect thereof is not affected by the Act. It may be that after the debts have been paid the Deputy Commissioner must restore the property to the heir; but that does not mean that the heir would be entitled to it as against a devisee under a valid will.

The various sections of this Act were very'' minutely examined by a Bench of the Calcutta High Court in Protap Chandra Deo Dhanbal Deb Vs. Sri Raja Jagadish Chandra Deo Dhabal Deb, . That Bench came to the conclusion that a will executed by an owner of an impartible estate at the time when his estate had not come under the Encumbered Estates Act, is valid though at the time of his death the estate had not been released from management under that Act. If the Act takes away the holder''s power to make a will, it must also invalidate a will made before the estate of the holder was taken over under the Act. As a will speaks from death, Section 3 of the Act would invalidate wills made either before or after the Act came into operation in cases where the holder died whilst the estate was still under management contemplated by the Act. I agree with Manohar Lall J. that the case in Protap Chandra Deo Dhanbal Deb Vs. Sri Raja Jagadish Chandra Deo Dhabal Deb, is a direct authority in favour of the validity of the will, and, in my view, should be followed.

Words, very similar to those appearing in Section 3 of the Act, were given a restricted meaning in Mohammad Sayeed v. Muhammad Ismail (11) 33 ALL. 233, in which it was held that the restriction against alienation contained in what is now para. 11 (1), Schedule 3, Civil P.C., meant alienation inter vivos. That schedule deals with execution by Collectors and provides that the Collector may manage the property for a period to enable decrees for payment of money to be liquidated. To prevent interference in such management on the part of the judgment-debtor para. 11 (1) provides:

So long as the Collector can exercise or perform in respect of the judgment-debtor''s immovable property, or any part thereof, any of the powers or duties conferred or imposed on him by paras. 1 to 10, the judgment-debtor or his representative-in-interest shall be incompetent to mortgage, charge, lease or alienate such property or part except with the written permission of the Collector, nor shall any civil Court issue any process against such property or part in execution of a decree for the payment of money.

In this paragraph "the judgment-debtor or his representative-in-interest" is made incompetent to mortgage, charge, lease or alienate, whereas in Section 3, Encumbered Estates Act, the holder or his heir is made so incompetent. A Bench of the Allahabad High Court held that the prohibition against alienation in this paragraph referred to alienation inter vivos and could not prevent the judgment-debtor making a will which would operate as an alienation at the data of his death. It is true that it is often dangerous to apply a construction given to a section in an Act to a similar section in a different Act. However, the provisions of Schedule 3 are in many ways similar to those of the Encumbered Estates Act. Both provide for a period of management of an estate to enable debts to be paid without the destruction of the estate. The purpose of para. 11, Schedule 3 is similar to the purpose of Section 3, Encumbered Estates Act, and in my view the reasoning of the learned Judges in the Allahabad case applies equally to the facts of this case.

Further there is an added reason in the present case for restricting the meaning of the word "alienate" in Section 3, Encumbered Estates Act, because it appears immediately after words which refer to alienations inter vivos and is immediately followed by words which clearly relate to other acts which can only be done in the lifetime of the holder or his heir. That being so, it must, in my view, be held that the prohibition against alienation in the Chota Nagpur Encumbered Estates Act is a prohibition against alienation inter vivos and does not affect the testamentary power of the holder. That being so, the will made by Raja Bhikhambar Singh was not invalid and the defendants, who were the beneficiaries under the will, are entitled to the property.

For these reasons I agree with Manohar Lall J., that this appeal should be dismissed with costs.