Mahadeo Shripad Deo ... vs Purushottam Shripad Deo & Ors
2017 Latest Caselaw 10006 Bom

Vidya Amin                THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION

                                  FIRST APPEAL NO.515 OF 1989

             Mahadeo Shripad Deo (Decd)
             through LRs Laxmibai Madhav
             Deo & Ors.                                    ... Appellants
                  Vs.
             Purushottam Shripad Deo (Decd.)
             through LRs Shalini Prabhakar
             Vatgikar & Ors.                               ... Respondents

             Mr. S.N. Deshpande, Advocate for the appellants.
             Mr. A.A. Garge a/w. Mr. J.H. Oak, Niranjan Kulkarni, Advocate for
             respondent nos. 3A to 3G and 5.
             Mr. Yogesh Dabke, AGP for respondent no. 8/State.

                     CORAM                          : MRS.MRIDULA BHATKAR, J.
                     RESERVED ON                    : DECEMBER 5 , 2017
                     PRONOUNCED ON                  : DECEMBER 22, 2017


             JUDGMENT:

1. This First Appeal is directed against the judgment and order

dated 21st December, 1988 passed by the learned Joint Civil

Judge, Senior Division, Solapur in Land Reference No. 17 of 1980

wherein compensation granted by opponent no. 7/State of

Maharashtra is apportioned.

2. The facts of the case, in brief, are as under:

1 Of 18

The respondents, i.e, the original petitioners, have filed the

reference under section 18 read with section 30 of the Land

Acquisition Act. The original petitioners are four brothers and

widow and children of deceased brother Shrikant Shripad Deo.

The opponents are deceased brother Mahadev Shripad Deo, his

legal heirs and sisters of the petitioners and legal heirs of

deceased sister of the petitioners. This is a property dispute

between the children of original owner Shripad Deo. Some of the

children are expired and therefore, their legal representatives

have stepped in their shoes. The State of Maharashtra has

acquired two lands bearing survey nos. 89A/1F admeasuring

40Ares and survey no. 89A/1F admeasuring 1 H 22 R originally

owned by Shripad Deo. The State of Maharashtra by notification

dated 31st March, 1980 passed award under section 12(2) of the

Land Acquisition Act and granted total compensation of

Rs.1,59,252/- for two lands with break up of Rs.41,400/- and

Rs.1,17,852/-. The petitioners and respondents neither

challenged the amount of compensation nor did they ask for

enhancement of the said compensation but a Reference was

made before the District Court, Solapur to apportion the amount

2 Of 18

of compensation between the children of Shripad Deo. The

genealogy of the family of Shripad Deo is as follows:

     (i)    Mahadev Shripad Deo

     (ii)   Purshottam Shripad Deo

     (iii) Shantaram Shripad Deo                        Sons

     (iv) Ramdas Shripad Deo

     (v)    Shrikant Shripad Deo

     (vi) Parwatibai Bhalchandra Kulkarni

     (vii) Sunanda Shripad Thite
                                                    Daughters
     (viii) Sudha Nanasaheb Deshpande

3. The petitioners/brothers in their reference contended that

they are the sons of deceased Shripad Deo and therefore, they

only have the right over the amount of compensation of award

by the Government in acquisition proceedings. Opponent no. 5

in Land Reference, i.e., sister Sudha Deshpande was the only

contesting opponent and other sisters did not contest the claim

of the brothers in the apportionment of compensation. Thus, as

per the relief claimed by the petitioners, all brothers only can

claim 1/6th share in the amount of compensation.

3 Of 18

4. Opponent no. 1 Mahadev Shripad Deo died before his

father, i.e., on 15th December, 1978. Shripad Deo died on 17 th

June, 1979. He has executed his last will on 21 st March, 1964,

i.e., much prior to his death. Thus, when award dated 31 st

March, 1980 was passed both Shripad and Mahadev were not

alive. Sudha and other opponents contended that their father

Shripad Deo during his life time has executed a valid will and as

per his last wishes, the compensation of the acquired lands is to

be distributed and not as per the demand made by the

petitioners. The Government has issued award in respect of land

bearing survey no. 89A/1G at Solapur admeasuring 1H 22R in

the name of Shripad and the award in respect of land bearing

survey no. 89A/1F was in the name of Mahadev. For the land of

Shripad, the amount of compensation is Rs.1,17,852/- and for

land of Mahadev, the compensation is Rs.41,400/-. The

respondents/opponents, i.e., legal representatives of deceased

Mahadev 1A to 1H in the reference, they denied the averments

of the petitioners that they have right in the compensation of the

land bearing S.No. 89A/1F admeasuring 40R, i.e., 1 acre. It was

contended by the opponents in their written statement that the

4 Of 18

said land was purchased by Shripad in the name of Mahadev and

it remained continuously in the name for more than 50 years till

the acquisition and therefore, the legal representatives of

Mahadev 1A to 1 H are only entitled to an amount of Rs.41,400/-

in respect of land survey no. 89A/1F. After considering the

pleadings and the contentions raised by both the sides, the trial

Court framed 12 issues and held that the land bearing survey no.

89A/1F admeasuring 40R stood in the name of deceased

Mahadev Shripad Deo as benami transaction and the said legacy

of Mahadev Shripad Deo has lapsed due to his death prior to the

death of Shripad Govind Deo as alleged. In respect of land

survey no. 89A/1G it was held that the said plot of land was

bequeathed to opponent no. 5 by will dated 23 rd June, 1964 by

her late father Shripad. However, legacy of Sudha lapsed due to

compulsory acquisition of the said land by Government of

Maharashtra before the death of father Shripad Deo. It also held

that the acquisition of land bearing survey no. 89A/1G by State

amended to disposition of the property during the life time of the

testator. The trial Court thereafter finally apportioned the

amount of compensation of Rs.1,59,252/- as a property of the

5 Of 18

deceased Shripad who died intested leaving behind the

respective amount of compensation and so distributed the said

amount as per the provisions of Section 8 read with Schedule 1

of the Hindu Succession Act.

5. Thus, as per the judgment and order of the Reference

Court, all the legal heirs, i.e. 6 sons and three daughters or their

respective legal representatives each are entitled to receive 1/9 th

share of the said compensation.

6. At the outset, the facts admitted by the parties are

summarized:

Shripad Deo, father of the original petitioners and the

opponents, died on 17th June, 1979 and he was the owner of two

lands and he made his first and last will on 21 st March, 1964 are

admitted facts. The contents in the will are also not disputed.

Survey No. 89A/1F admeasuring 40R was purchased by Shripad

Deo in the name of Mahadev on 20 th May, 1920 when Mahadev

was 13 years old. Mahadev died before Shripad, i.e., on 15 th

December, 1978. The Government acquired the lands and

6 Of 18

award was passed on 31st March, 1980 in respect of both the

lands. However, land bearing survey No. 89A/1F was in the

name of Mahadev and other land bearing survey No. 89A/1G in

the name of Shripad.

7. Shripad has executed will in 1964 and he died in the year

1979, i.e., nearly after 15 years. The truthfulness of the said will

is not challenged by either of the parties. This is a last will of

Shripad Deo. In the will, Shripad has given his various properties

and portion of the house to all his children, however, he has not

mentioned anything about land bearing Survey No. 89A/1F which

he had purchased in the name of Mahadev. In Clause No. 47, he

mentioned about the land bearing survey No. 89A/1G

admeasuring 2 acres 38R is given to his daughter Sudha alias

Leela Deshpande, as she is staying at Pandharpur. In Clause No.

54, he has stated that apart from movable and immovable

properties which is not mentioned in the will and not

bequeathed, is to be distributed between 6 sons equally and

daughters have no right in the said shares.

7 Of 18

8. Thus, Shripad disposed of his property by valid will.

Therefore, distribution of the property of Shripad should be as

per his will only. The learned Reference Court has committed

error of law, as on the basis of two wrong propositions the entire

reasoning stands. The learned Judge firstly ought not to have

held the land given to Mahadev was benami transaction and it

remained benami even after Mahadev attained majority.

Secondly, the compensation given by the Government in lieu of

acquisition of land is a property of late Shripad qua which he

died intested.

9. The learned counsel for both the sides have read the

evidence, documents and relevant portions of the judgment.

Considered their submissions. First let me advert to the issue of

compensation awarded in respect of survey No. 89A/1F. This

land was purchased by Shripad in the name of his eldest son

Mahadev in the year 1920 when he was 13 years old. This land

was purchased by father out of love and affection for his eldest

son. Undoubtedly, at the relevant time, considering the age of

Mahadev, he was not earning member of the family and hence,

8 Of 18

at the most, at that time can be said it was a benami purchase.

Mahadev attained majority 5 to 6 years thereafter, i.e. in the

year 1927 and died before his father. Shripad did not transfer

the said property either in his name or in the name of his other

children either during the life time of Mahadev or after his death.

This act of Shripad reveals that Shripad intended to give that

property to Mahadev only and did not want to transfer it to his

any children or wanted to take it back as his property. The

intention of the party is always gathered on the basis of his or

her overtact. In the year 1964 when Shripad executed the will,

he could have mentioned about such benami purchase of the

land and could have disposed of the said property the way he

wanted. However, he did not do so only because till then

Mahadev had become the full owner of the suit property. Thus,

when the property was acquired by the Government, the award

was passed rightly in the name of Mahadev in the year 1980.

The reasoning given by the Reference Court that Mahadev died

before Shripad and the land was acquired in the life time of

Shripad is a material fact and so the inference of lapse of legacy

is totally incorrect. There was no question of lapsing of legacy in

9 Of 18

any manner because Mahadev became the absolute owner of

the land when the land was acquired. The learned Judge ought

to have taken into account the close relationship between

Shripad and Mahadev as father and son and, therefore, the said

purchase was a gift by the father to his son. Mahadev retained

the land with him so also his name remained entered throughout

in the revenue record in respect of suit property, it shows the gift

was accepted, never returned and hence complete. Hence, after

death of Mahadev, his widow or his children are the legal

representatives entitled to receive the amount of compensation

and said amount of compensation is to be apportioned equal

shares between them only. Thus, the finding on this point of the

Reference Court is hereby set aside.

10. Shripad bequeathed land survey No. 89A/1G to Sudha

Deshpande. He did not give her the entire land but he

bequeathed 2 acres from the entire land in favour of Sudha. It is

erroneous to hold that in the life time of Shripad, the State

Government acquired the said land as it stood in the name of

Shripad and, therefore, the legacy of Sudha lapsed and the

10 Of 18

compensation received in lieu of the said land is to be distributed

under section 8 read with Schedule 1 of the Hindu Succession

Act of 1956. Once Shripad has bequeathed the land in favour of

Sudha and did not challenge the said will till his death, the

bequeath continued and it effected after his death and legacy

continued. It is to be noted that in the case of testamentary

disposition, Hindu Succession Act does not apply and the interest

of the deceased is governed by the Indian Succession Act of

1925. All the testamentary arrangement of the properties and

the proceedings under the will are covered under the Indian

Succession Act. The acquisition of the land by the State

Government during the life time of Shripad cannot affect the

contents of the will. The bequest remained unaffected by virtue

of Section 163 of Indian Succession Act.

11. The learned counsel Mr. Deshpande has ably assisted this

Court by drawing my attention to Section 163 of the Act. It is

useful to reproduce the said Section as follows:

Section 163 in The Indian Succession Act, 1925

"163. Change by operation of law of subject of specific

11 Of 18

bequest between date of will and testator's death.--

Where a thing specifically bequeathed undergoes a

change between the date of the Will and the testator's

death, and the change takes place by operation of law,

or in the course of execution of the provisions of any

legal instrument under which the thing bequeathed was

held, the legacy is not adeemed by reason of such

change."

12. Section 163 restores the effect of change taken place in

respect of bequeath between the date of the will and the death

of testator. The transformation of bequest in any other manner

is possible during that period and the will comes into operation

only after the death of the testator. The object of the will is that

a person has a right to dispose of his self acquired property as

per his wish and desire. The said desire and wish is to be

honoured even if there is a change in the property/bequest. In

Section 163 such circumstances causing change are specifically

mentioned - (a) by operation of law; (b) in the course of

execution of the provisions of any legal instrument under which

12 Of 18

things bequeathed was held. In the present case, the bequest of

land due to acquisition that took place under the Land

Acquisition Act was transformed into compensation, i.e., Liquid

cash and therefore, the said cash, i.e., changing the form of

immovable property into movable property remained as bequest

as per the last will of Shripad made in favour of Sudha.

13. Thus, the will cannot be read in parts. As per the will,

Sudha was beneficiary of two acres of land and during life time

of Shripad though the land was acquired, which obviously stood

in his name, whatever compensation is received after his death,

Sudha alone is entitled to the same. During the life time of

Shripad, if he would have actually received the amount of

compensation in his name and if he would have disposed of the

said amount by distributing it amongst his children, then Sudha's

legacy would have been lapsed. The distribution of the property

can be implemented only after the death of the settler testator

of the will. In the present case, Shripad died after the

acquisition but before the award and, therefore, the claim of

Sudha alone is to be acknowledged.

13 Of 18

14. On the point that it is only when the possession of the land

has been taken by the Government under section 16 of the Act,

right of the owner of the land is extinguished, the learned

counsel relied on following judgments:

(i) Judgment of Hon'ble Supreme Court in the case of

Sharda Devi vs. State of Bihar & Anr., reported in

(2003) 3 SCC 128.

(ii) Judgment of Hon'ble Supreme Court in the case of

Satendra Prasad Jain & Ors. vs. State of U.P., reported

in 1993 SC 2517.

15. The learned counsel Mr. Garge has submitted that Sudha

cannot claim property in Appeal, as Sudha chose not to file

Reference or counter claim on the basis of will before the

Reference Court. She did not claim inheritance, so she is

estopped from her claim of sole claimant. The learned counsel

for the respondent has submitted that the claim of Sudha or any

other person cannot be better or higher once the property vest

with the Government after notification under section 4 and thus,

Sudha has no locus to challenge the acquisition proceedings.

14 Of 18

The learned counsel relied on the judgment of Division Bench of

the Bombay High Court in the case of Damodar Laxmanrao

Kumbodh by LRs. Pramod Damodarrao Kumbodh vs.

State of Maharashtra, reported in 2008(3) Mh. L.J. 123.

16. While meeting this point, the learned counsel Mr.

Deshpande pointed out the contentions raised in the written

statement of Sudha where she has categorically stated that she

claims the entire compensation of land, i.e., 891F under the will.

17. Under Section 115 of the Indian Evidence Act, principle of

estoppel is laid down. Section 115 in The Indian Evidence Act,

1872is reproduced thus:

"115 Estoppel. --When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. Illustration A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title."

15 Of 18

18. While applying the principle of estoppel, the Court has to

verify whether the person has intentionally given up his claim or

not. If he or she unintentionally disclaims, then the principal of

estoppel cannot be pressed into service. Morevoer, the suit is

filed not only under section 18 of the Act, i.e., in respect of

amount of compensation but it is a reference under section 18

and under section 30 of the Land Acquisition Act. Section 30 in

The Land Acquisition Act, 1894 is thus:

"30. Dispute as to apportionment: When the amount of compensation has been settled under section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof, is payable, the Collector may refer such dispute to the decision of the Court. State amendment."

19. In the case of Damodar Laxmanroa Kumbodh (supra),

while dealing with the issue of acquisition and notification under

section 4 of the Land Acquisition Act, it was held that once the

notification under section 4 has been issued in subsequent

encumbrance on that is not binding on Court. Claim of persons

who acquire interest later would be irrelevant as they have no

16 Of 18

locus to challenge acquisition proceedings.

20. The ratio laid down in the case of Damodar Laxmanrao

Kumbodh is not helpful and useful to the respondent, as the

acquisition proceeding is not challenged but a fact of transfer

and bequest is disputed. The right of Sudha is created much

earlier by Shripad, i.e., the owner of the land himself by bequest.

So, it cannot be considered as a regular transfer before the

acquisition.

21. In the case of Union of India & Anr. vs. Raghubir

Singh (Dead) by LRs. in Civil Appeal Nos. 2839-40 of

1989 & Ors., reported in (1989) 2 SCC 754, Bhag Singh and

Mohinder Singh cases overruled and it is not applicable to

enhancement under section 30(2) of the Amendment Act, as the

present award is prior to 1982 and therefore no enhanced

solatium.

22. Thus, the judgment and order dated 21 st December, 1988

passed by the trial Court needs to be set aside in view of the

above discussion in respect of apportionment of the property.

17 Of 18

Hence, I pass following order:

     (i)       First Appeal is allowed;
     (ii)      The judgment and order dated 21st December, 1988

passed by the learned Joint Civil Judge, Senior Division, Solapur in Land Reference No. 17 of 1980 is hereby set aside;

(iii) The legal heirs of Mahadeo are entitled to get compensation in equal shares in respect of land bearing survey no. 89A/1F along with interest accrued thereon;

(iv) Sudha or her legal heirs are entitled to get compensation in respect of two acres of land bearing survey no.89A/1G in equal shares;

(v) For the compensation of remaining land, if any, from land bearing survey no. 89A/1G, all the children of Shripad Deo are entitled to get 1/9th share each and if the children are no more, then their legal heirs are entitled to get their respective shares equally.

23. Before parting with the judgment, I would like to mention

that this Appeal is pending since 1989, however, with the

assistance of learned counsel Mr. Deshpande and Mr. Garge, it

was possible to dispose of this Appeal.

(MRIDULA BHATKAR, J.)

18 Of 18