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Wednesday, December 20, 2017

Section 2 of the Partition Act = whether the appellant, having not challenged the preliminary decree, may challenge the final decree. It is contended that the High Court could not have modified the preliminary decree. We find it difficult to appreciate this contention. No doubt, the preliminary decree was for partition by metes and bounds. But at the stage of final decree, the High Court, having regard to the peculiar facts of this case, addressed the question of impracticability of partitioning a small pathway which is around 6 feet wide by metes and bounds. The High Court has also referred to Section 2 of the Partition Act in that regard. In the facts of this case and having regard to the provision under Section 2 of the Partition Act, the view taken by the High Court cannot be faulted However, we find that the amount fixed by the High Court i.e. Rs.50,000/- for the total share, in our view, as on date is too low. Therefore, in the fitness of things and in the interest of justice it would only be just and proper to direct the respondent to pay a further sum of Rs.1,00,000/- in addition to what the High Court has already fixed. Ordered accordingly.

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 21804-21805/2017
(ARISING FROM SLP (C) NOS.7476-7477 OF 2015)
S. ESABELLA PETITIONER(S)
 VERSUS
C. THANKARAJAN RESPONDENT(S)
J U D G M E N T
KURIAN, J.
Leave granted.
2. The appellant has approached this Court
challenging the orders passed by the High Court dated
19.06.2014 in Mat. Appeal No.211 of 2005 and order
dated 10.10.2014 in R.P. No.498/2014. The issue
pertains to partition. On account of impracticability
of partitioning a small pathway which is around 6
feet wide, the High Court granted liberty to the
respondent/C. Thankarajan to purchase the share of
the appellant for a sum of Rs.50,000/-. Aggrieved,
the appellant is before this Court.
3. The main question of law raised in this appeal is
1
whether the appellant, having not challenged the
preliminary decree, may challenge the final decree.
It is contended that the High Court could not have
modified the preliminary decree. We find it
difficult to appreciate this contention. No doubt,
the preliminary decree was for partition by metes and
bounds. But at the stage of final decree, the High
Court, having regard to the peculiar facts of this
case, addressed the question of impracticability of
partitioning a small pathway which is around 6 feet
wide by metes and bounds. The High Court has also
referred to Section 2 of the Partition Act in that
regard.
4. In the facts of this case and having regard to
the provision under Section 2 of the Partition Act,
the view taken by the High Court cannot be faulted.
5. However, we find that the amount fixed by the
High Court i.e. Rs.50,000/- for the total share, in
our view, as on date is too low. Therefore, in the
fitness of things and in the interest of justice it
would only be just and proper to direct the
respondent to pay a further sum of Rs.1,00,000/- in
addition to what the High Court has already fixed.
Ordered accordingly.
6. The appeals are, accordingly, disposed of.
2
7. Pending applications, if any, shall stand
disposed of.
8. There shall be no orders as to costs.
.......................J.
 [KURIAN JOSEPH]
.......................J.
 [AMITAVA ROY]
NEW DELHI;
DECEMBER 12, 2017.
3

Section 28A of The Land Acquisition Act, 1894 - No doubt, the second application dated 27.05.2009 for re-fixation in light of the appellate court judgment is not maintainable. However, since the Collector is also at fault in deciding the application when the matter was pending in appeal, we are of the view that in the peculiar facts of the instant case, the application dated 31.12.1992 should be considered afresh. The Land Acquisition Collector is directed to consider afresh the Section 28A application dated 31.12.1992 and pass orders in the light of the judgment of the High Court dated 23.03.2009 in First Appeal Nos.569 and 570 of 1997 on the file of the High Court of Bombay, Bench at Aurangabad. For enabling the Collector to pass orders as above, the order dated 25.10.2000 is set aside. However, the amounts already paid are to be duly adjusted.

REPORTABLE
SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 21792 OF 2017
(Arising out of S.L.P.(Civil) No. 16449/2016)
BHARATSING S/O GULABSINGH JAKHAD & ORS. ... APPELLANT (S)
VERSUS
THE STATE OF MAHARASHTRA & ORS. ... RESPONDENT (S)
J U D G M E N T
KURIAN, J.:
 Leave granted.
2. What is the course to be adopted by the Land Acquisition
Collector under Section 28A of The Land Acquisition Act,
1894 (hereinafter referred to as “the Act”), when the
award based on which enhancement is sought is pending
1
in appeal, is the issue arising for consideration in this
case.
3. The Section 4(1) Notification was issued on 17.01.1974.
The compensation was determined by the Land
Acquisition Officer on 04.06.1977. The appellants did not
pursue the matter further under Section 18 of the Act in
Reference. However, other claimants of the lands covered
by the same Section 4(1) Notification took up the matter
further and the Reference Court allowed enhancement
and fixed the land value at Rs.5,000/- per acre in the place
of Rs.3,000/3,500 offered by the Land Acquisition Officer,
as per the award dated 01.10.1992 in LAR Nos. 123 and
129 of 1983 on the file of the Second Additional District
Judge, Aurangabad. The appellants filed an application on
31.12.1992 under Section 28A of the Act seeking similar
enhancement within the period of three months as
required under Section 28A.
4. While the application under Section 28A of the Act was
pending, the award under LAR Nos. 123 and 129 of 1983
was challenged in appeals and there were also cross
2
objections. The High Court disposed of these appeals by
judgment dated 23.03.2009 granting compensation at the
rate of Rs.18,000/- per acre.
5. During the pendency of the appeal, it is seen that the
Land Acquisition Collector passed an award dated
25.10.2000 on the application filed by the appellants
under Section 28A of the Act, awarding compensation at
the rate of Rs.5,000/- per acre, as awarded in LAR Nos.
123 and 129 of 1983 referred to above.
6. On 27.05.2009, the appellants filed fresh applications
under Section 28A for enhancement of compensation
based on the judgment of the High Court dated
23.03.2009. They also approached the High Court praying
for the Writ of Mandamus. By the impugned order, the
Writ Petition was dismissed holding that Section 28A of
the Act permits only one application, and successive
applications as and when further enhancement is made,
are not permissible.
7. Thus aggrieved, the present appeal.
3
8. Section 28A of the Act which was inserted in 1984 reads
as follows :-
“28A. Re-determination of the amount of
compensation on the basis of the award
of the Court. – (1) Where in an award under
this Part, the Court allows to the applicant any
amount of compensation in excess of the
amount awarded by the Collector under
section 11, the persons interested in all the
other land covered by the same notification
under section 4, sub-section (1) and who are
also aggrieved by the award of the Collector
may, notwithstanding that they had not made
an application to the Collector under section
18, by written application to the Collector
within three months from the date of the
award of the Court require that the amount of
compensation payable to them may be
re-determined on the basis of the amount of
compensation awarded by the Court:
Provided that in computing the period of
three months within which an application to
the Collector shall be made under this
sub-section, the day on which the award was
pronounced and the time requisite for
obtaining a copy of the award shall be
excluded.
(2) The Collector shall, on receipt of an
application under sub-section (1), conduct an
inquiry after giving notice to all the persons
interested and giving them a reasonable
opportunity of being heard, and make an
award determining the amount of
compensation payable to the applicants.
4
(3) Any person who has not accepted the
award under sub-section (2) may, by written
application to the Collector, require that the
matter be referred by the Collector for the
determination of the Court and the provisions
of sections 18 to 28 shall, so far as may be,
apply to such reference as they apply to a
reference under section 18.”
9. The nuances of Section 28A have been subject matter of
various decisions of this Court. In Babua Ram and
others v. State of U.P. and another1
, one of the
questions considered by a two-judge Bench of this Court
was whether the Collector/LAO on receipt of application
under Section 28A (1) is bound to re-determine the
compensation when the award is pending in appeal
before the High Court or appellate forum. This Court, at
paragraph- 39 held as follows“39.
The next question is whether the
Collector/LAO on receipt of the application
under sub-section (1) of Section 28-A is
bound to redetermine the compensation
while the award and decree under Section
26 is pending consideration in the appeal in
the High Court or appellate forum. If he
does so, whether award under Section
28-A(2) is illegal? It is settled law that the
decree of the trial court gets merged in the
1
(1995) 2 SCC 689
5
decree of the appellate court which alone is
executable. The finality of the
determination of the compensation is
attained with the decree of the appellate
forum, be it the High Court or this Court.
Take for instance that ‘A’, ‘B’ and ‘C’ are
interested persons in the land notified
under Section 4(1) and the compensation
determined in the award under Section 11.
‘A’ received the compensation without
protest. ‘B’ and ‘C’ received the
compensation under Section 31 under
protest and sought and secured reference
under Section 18. The court enhanced the
compensation from the Collector’s award of
Rs 10,000 to Rs 20,000. ‘B’ did not file
appeal under Section 54 while ‘C’ filed the
appeal. The High Court, suppose, further
enhances the compensation to Rs 25,000 or
reduces the compensation to Rs 15,000 per
acre. ‘A’ is a person aggrieved only to the
extent of the excess amount awarded
either by the award and decree of the court
under Section 26 but he will not get the
enhancement of further sum of Rs 5000
granted by the High Court in favour of ‘C’.
The decree of the High Court is the
executable decree made in favour of ‘C’.
Unless redetermination is kept back till the
appeal by the High Court is disposed of,
incongruity would emerge. Suppose the
State filed appeal in this Court under Article
136 against the High Court decree and this
Court confirms the award of the Collector
and sets aside the decree of civil court
under Section 26 and of the High Court
under Section 54. There is nothing left for
redetermination. With a view to save ‘A’ or
‘B’ or the State from the consequences of
6
such incongruous situations, the
Collector/LAO should stay his hands in the
matter of redetermination of compensation
till the appeal is finally disposed of and he
should redetermine the compensation only
on the basis of the final judgment and
decree of the appellate forum. Adoption of
such course, would not merely avoid the
chance element in the claimants getting
the amounts of redetermined compensation
but also avoids needless burden on public
exchequer. As soon as the award of the civil
court is carried in appeal, it becomes
obligatory for the Collector to keep the
application/applications for redetermination
of compensation filed within limitation
pending, awaiting decision by the appellate
forum and to redetermine the
compensation on the basis of the final
judgment and decree….”
Babua Ram (supra), also dealt with the question as to
when the period of limitation of three months begins to run
under Section 28A. The Court held that the period of three
months prescribed for application under Section 28A has to
be computed from the date of the first award.
10. Soon after the decision in Babua Ram (supra), this Court
in U.P. State Industrial Development Corpn. Ltd v.
 State of U.P. and others2
, reiterated Babua Ram
(supra) to hold that since an appeal preferred by the
2
(1995) 2 SCC 766
7
State against the award of the District Judge under Section
26 was pending, the proper course would have been to
keep the application under Section 28A (1) pending till the
appeal was disposed of.
11. In Union of India and another v. Pradeep Kumari and
 others3
, a three-judge Bench of this Court disagreed with
Babua Ram (supra) on the point that an application for
redetermination of compensation can be made only on the
basis of the first award made after coming into force of
Section 28A. It was clarified that compensation under
Section 28A could be availed of on the basis of any one of
the awards that has been made by the court after coming
into force of Section 28A provided that the application is
made within the prescribed period of three months from
the making of the award on the basis of which
re-determination is sought. This Court also laid down six
conditions for filing an application under Section 28A and
the sixth condition is- “only one application can be moved
3
(1995) 2 SCC 736
8
under Section 28A for redetermination of compensation by
an applicant”.4
12. Subsequently, in Jose Antonio Cruz Dos R. Rodriguese
and another v. Land Acquisition Collector5
, a
three-Judge Bench of this Court explained the scheme of
the Act and noted that Section 28A was under Part III of
the Act. Further, Section 2(d) of the Act defines ‘court’ to
mean principal Civil Court of original jurisdiction unless a
special judicial officer is appointed. Therefore, this Court
was of the opinion that in Section 28A the ‘award’ means
an award under Part III and ‘court’ can only mean the
court to which reference is made by the Collector under
Section 18. It was held that “the plain language of Section
28-A, therefore, prescribes the three months period of
limitation to be reckoned from the date of award by the
4 The other five conditions are- 1. The award has been made by the
court under Part III after coming into force of Section 28A; 2. By the said
award the amount of compensation in excess of the amount awarded by the
Collector under Section 11 has been allowed to the applicant in that
reference; 3. The person moving the Section 28A application is interested in
other land covered by the same Section 4 (1) notification to which the award
related; 4. The person moving the application did not make an application
under Section 18; 5.The application is moved within three months from the
date of the award on the basis of which redetermination of amount of
compensation is sought.
5
(1996) 6 SCC 746
9
Court disposing of the reference under Section 18, and not
the appellate court dealing with the appeal against the
award of the Reference Court”.
13. In Union of India v. Munshi Ram (Dead) By Lrs. and
 others6
, while dealing with a situation where the
compensation awarded by the Reference Court was
modified by the High Court and further modified by the
Supreme Court in appeal, this Court held as follows at
paragraph-9:
“9. We hold that under Section 28-A of
the Act, the compensation payable to the
applicants is the same which is finally
payable to those claimants who sought
reference under Section 18 of the Act. In
case of reduction of compensation by the
superior courts, the applicants under
Section 28-A may be directed to refund
the excess amount received by them in
the light of reduced compensation finally
awarded.”
 (Emphasis supplied)
14. In Kendriya Karamchari Sehkari Grah Nirman Samiti
Limited, Noida v. State of Uttar Pradesh and
 another7
, this Court held that in the facts of the case, the
6
(2006) 4 SCC 538
7
(2009) 1 SCC 754
10
Collector was justified in not deciding the Section 28A
application on account of pendency of an appeal before
the High Court. In that case, the appellant had also
challenged the Government Orders as per which the
Collector could not have decided the Section 28A
application in case the order of the Reference Court
enhancing the compensation is challenged and the appeal
is pending before the High Court/Supreme Court. This
Court, specifically held that the Government Orders were
in consonance with the law laid down in Babua Ram
(supra).
15. In the case of the appellants, when their Section 28A
application was decided, based on awards in LAR Nos. 123
and 129 of 1983, the very same awards were pending in
appeal before the High Court. However, the Collector
proceeded to consider their application and decided the
same on 25.10.2000. Thereafter, fresh application under
Section 28A was filed on 27.05.2009 based on the
judgment of the High Court dated 23.03.2009. It was this
11
application that was held to be not maintainable, being a
second application.
16. Though there is no quarrel with the principle that only a
single application is maintainable, in the instant case,
unfortunately, the High Court omitted to take note of the
fact that the appeals on the relied on awards were
pending when the Section 28A application was decided.
That is the special and distinctive factual position in the
instant case. It must also be kept in mind that Section 28A
is a beneficial provision.
17. The Section 28A application dated 31.12.1992 based on
the awards in LAR Nos. 123 and 129 of 1983 was decided
on 25.10.2000 when the appeals therefrom were pending.
The Collector ought to have kept the application pending
till the appeals were decided on 23.03.2009. On principle,
the High Court is correct and justified in the view taken in
the impugned judgment that there cannot be successive
applications under Section 28A in view of Pradeep
Kumari (supra). But that is not the point arising for
consideration here. No doubt, the second application
12
dated 27.05.2009 for re-fixation in light of the appellate
court judgment is not maintainable. However, since the
Collector is also at fault in deciding the application when
the matter was pending in appeal, we are of the view that
in the peculiar facts of the instant case, the application
dated 31.12.1992 should be considered afresh.
Accordingly, the appeal is disposed of as follows. The
Land Acquisition Collector is directed to consider afresh
the Section 28A application dated 31.12.1992 and pass
orders in the light of the judgment of the High Court dated
23.03.2009 in First Appeal Nos.569 and 570 of 1997 on
the file of the High Court of Bombay, Bench at
Aurangabad. For enabling the Collector to pass orders as
above, the order dated 25.10.2000 is set aside. However,
the amounts already paid are to be duly adjusted.
18. The orders as above shall be passed by the Land
Acquisition Collector within three months from the date of
presentation of a copy of this judgment by the appellants
and the consequential benefits shall be disbursed to them
within another one month.
13
19. There shall be no order as to costs.
............................J.
(KURIAN JOSEPH)
............................J.
(R. BANUMATHI)

NEW DELHI;
DECEMBER 12, 2017.
14

the case of Mrs. Pritam (Plaintiff No.2) falls under Section 14 (2) of the Act insofar as it relates to the suit house.=“life interest” means an interest which determines on the termination of life. It is incapable of being transferred by such person to others being personal in nature. Such person, therefore, could enjoy the “life interest” only during his/her lifetime which is extinguished on his/her death. Such is the case here. Her “life interest” in the suit house was extinguished on her death on 12.09.2016.- The facts of the case of Sadhu Singh were that the husband executed a Will in favour of his wife of his self-acquired property in 1968. Though he gave to wife absolute rights in the properties bequeathed but some restrictions were put on her right to sell/mortgage the properties and further it was mentioned in the Will that the said properties after wife’s death would go to testator’s nephew. Due to these restrictions put by the testator on his wife’s right to sell/mortgage, it was held that the wife received only the “life interest” in the properties by Will and such “life interest”, being a “restricted estate” within the meaning of Section 14(2) of the Act, did not enlarge and nor ripen into the absolute interest under Section 14(1) but remained a “life interest” i.e. “restricted estate” under Section 14(2) of the Act. It was held that such disposition made by the husband in favour of his wife was permissible in law in the light of Section 14(2) read with Section 30 of the Act. In our view, the facts of the case on hand are similar to the facts of Sadhu Singh’s case(supra) and, therefore, this case is fully covered by the law laid down in Sadhu Singh's case.

 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 21784 OF 2017
 (ARISING OUT OF SLP (C) No.32044/2016)
Mr. Ranvir Dewan ...Appellant(s)

VERSUS
Mrs. Rashmi Khanna & Anr. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed by plaintiff No.1 against the
final judgment and order dated 13.07.2016 passed
by the Division Bench of the High Court of Delhi at
New Delhi in R.F.A.(OS) No.147 of 2013 whereby the
High Court dismissed the appeal filed by Plaintiff
1
No.2 (since dead) and the appellant (plaintiff No.1)
herein and confirmed the judgment and order
dated 11.10.2013 of the Single Judge of the High
Court in C.S.(O.S.) No.1502 of 2010.
3. In order to appreciate the controversy involved
in the appeal, it is necessary to set out the facts of
the case.
4. The appellant is plaintiff No.1 whereas the
respondents are the defendants in a suit out of
which this appeal arises. The appellant is the
brother whereas respondent No.1 is the appellant’s
sister.
5. The dispute in this appeal is essentially
between the mother, brother(son) and the
sister(daughter). It relates to a residential house
consists of basement and two floors situated at D246,
Defense Colony, New Delhi (hereinafter referred
to as the “suit house”).
2
6. Mr. B.R. Dewan was the sole owner of the suit
house. He had two wives-Mrs. Kamla Devi and
second - Mrs. Pritam. Out of wedlock with first wife
- Mrs. Kamla Devi, a son - Ashok was born whereas
out of wedlock with second wife -Mrs. Pritam, a sonRanvir-appellant
and a daughter-Rashmirespondent
No.1 were born. Mr. Dewan owned
moveable and immovable properties,
7. On 24.06.1984, Mr. Dewan executed a Will of
his properties (movables and immoveable). So far
as the suit house with which we are concerned in
this appeal, Mr. Dewan gave its ground floor to his
son-Ranvir Dewan exclusively whereas the first
floor, he gave exclusively to his daughter-Rashmi
Khanna.
8. So far as wife-Pritam was concerned, he gave
to her a “life interest” to reside in the suit house till
her death and also to recover the rent and utilize
the income earned by way of rent to maintain
3
herself and the suit house. He also gave her a right
to evict the tenants and induct the new ones.
9. The Will, in clear terms, recited that the wife -
Mrs. Pritam is given “life interest” in the suit house
and she will act as a trustee of its legal owners (son
and daughter) and utilize the income earned out of
it and on her death, by his son and daughter to
whom the suit house was given exclusively.
10. The Will also recited that Ranvir and Rashmi
would be free to get themselves assessed as owners
of their respective shares in the suit house in their
wealth tax assessment cases on the death of Mr.
Dewan.
11. Mr. Dewan then gave his share in HUF
property - B.R. Dewan & sons which consists of a
plot at Ghaziabad, bank balances, shares,
debentures, fixed deposits and all household
articles exclusively to his wife –Mrs. Pritam. He also
made provision for his first wife-Kamla Devi for her
4
maintenance to pay Rs.500/- per month to her
during her life time.
12. In this manner, Mr. Dewan made disposition of
his entire moveable and immoveable property in the
Will. In the last, he expressed that he has executed
the Will with a hope that there would be no dispute
and litigation amongst his family members qua the
properties on his death.
13. On 16.09.1984, Mr. Dewan expired. Mrs.
Pritam - second wife of late Mr. Dewan then applied
for grant of probate of the Will dated 26.04.1984.
The Competent Court granted the probate on
12.10.1987. It was followed by the consequential
order dated 05.01.1989 to enable the parties to give
effect to the Will. The son and daughter accordingly
got their names mutated in the municipal records
as owners of their respective shares in the suit
house.
5
14. Contrary to the testator’s hope, soon after his
demise, the disputes started between the mother
and son on one side and the daughter on the other
side. Initially, parties sat together and decided to
develop the suit house by making some
additions/alterations and accordingly entered in
family settlement followed by an agreement with the
developers/builders to develop the suit house.
15. However, the disputes could not be settled
amicably and instead got precipitated. The disputes
were essentially centered around to their inter se
ownership rights over the suit house including its
nature, their shares, income earned from the suit
house and the newly constructed 3rd floor and who
should receive it and lastly, ownership rights over
the 3rd floor.
16. Mrs. Pritam-mother and Ranvir-son then
jointly filed a suit being O.S. No.1502/2010 against
the daughter/sister - Rashmi and the developer on
6
the original side of the High Court at New Delhi out
of which this appeal arises and claimed following
reliefs:
“(i) That this Hon’ble Court be pleased to
pass a decree of permanent injunction
restraining the Defendants, their
agents, successors and any third party
claiming through them from creating
any/any further third party rights in
respect of the 2nd and 3rd floors of the
property bearing No.D-246, Defence
Colony, New Delhi.
(ii) That this Hon’ble Court be pleased to
pass a decree of declaration that the
alleged tenancy agreement dated 7th
July, 2010 executed by Defendant
No.01 in favour of Defendant No.02 are
illegal, null and void and of no effect.
(iii) That this Hon’ble Court be pleased to
pass a decree of declaration that the
Plaintiff No.02 is entitled to the rental,
the security deposit all other incomes
accruing from the 2nd floor of the
property bearing No.D-246 Defence
Colony, New Delhi.
(iv) That this Hon’ble Court be pleased to
pass a decree of declaration that the
Plaintiff No.02 is entitled to the rental,
the security deposit and all other
income accruing from the 3rd floor of
the property bearing No.D-246, Defence
Colony, New Delhi.
(v) That this Hon’ble Court be pleased to
pass a decree of declaration that the
Plaintiff No.01 is entitled to absolute
7
rights over the 3rd floor and roof rights
of the 3rd floor apart from the Basement
and Ground Floor of the property
bearing No.D-246, Defence Colony, New
Delhi.”
17. Though the plaint runs into several pages and
seeks to claim five reliefs but, in substance, the
controversy centered around to relief No.(v) only.
18. According to the plaintiff, Mrs. Pritam (wife)
was entitled to seek a declaration that she is the
absolute owner of the suit house including its 3rd
floor. It was alleged that her “life interest” was
enlarged and ripened into an absolute interest by
virtue of Section 14 (1) of the Hindu Succession Act
(hereinafter referred to as “the Act”) on the death of
her husband. Though the plaint contains several
other averments but they need not be stated herein
being unnecessary to examine the issue relating to
grant of relief No. (v).
19. Respondent No.1 (defendant No.1) filed the
written statement. While denying the plaintiffs’
8
claim, it was contended that plaintiff No.2-Mrs.
Pritam did not acquire absolute interest in the suit
house and nor her “life interest” was enlarged and
ripened into an absolute interest by virtue of
Section 14 (1) of the Act. It was contended that
plaintiff No.2 received only “life interest” to live in
the suit house during her lifetime in terms of the
Will and, therefore, such right squarely falls under
Section 14(2) of the Act. It was contended that so
far as respondent No.1 is concerned, she acquired
an absolute ownership right in the first floor of the
suit house on the strength of clear recitals in the
Will.
20. The Single Judge framed the issues. Parties
adduced their evidence. By judgment/decree dated
11.10.2013, the suit was dismissed. It was held
that Mrs. Pritam received only “life interest” in the
suit house. In other words, it was held that the
plaintiffs’ case falls under Section 14 (2) of the Act.
9
21. Felt aggrieved, plaintiffs filed first appeal
bearing R.F.A. (OS) No.147 of 2013 before the
Division Bench of the High Court. By impugned
judgment dated 13.07.2016, the Division Bench
dismissed the appeal and upheld the
judgment/decree of the Single Judge giving rise to
filing the present appeal by way of special leave by
plaintiff No.1 in this Court.
22. Heard Mr. Guru Krishan Kumar, learned
senior counsel for the appellant and Mr. K.
Ramamoorthy, learned counsel for respondent No.1
and Mr. S.S. Jauhar, learned counsel for
respondent No.2.
23. Mr. Guru Krishan Kumar, learned senior
counsel for the appellant while assailing the legality
and correctness of the impugned judgment
reiterated the same submissions, which were urged
unsuccessfully before the Courts below.
10
24. His main submission was that the appellant’s
case squarely falls under Section 14(1) of the Act,
which confers on Mrs. Pritam the absolute right of
ownership over the suit house.
25. Elaborating the submission, learned counsel
urged that since the wife is entitled in law to claim
maintenance from her husband even prior to and
also after coming into force of the Act, it is in
recognition of this pre-recognized right when the
husband gave a “life interest” through Will, the
same got enlarged and ripened into an absolute
right by virtue of Section 14 (1) of the Act. It is
essentially this submission, which was elaborated
by the learned counsel with reference to decided
cases.
26. In reply, Mr. K. Ramamoorthy, learned senior
counsel for respondent No.1 while supporting the
reasoning and the conclusion arrived at by the two
Courts below contended that the same is in
11
accordance with the law and does not call for any
interference.
27. According to learned counsel, as rightly held
by the two Courts below, the appellant's case
squarely falls under Section 14 (2) of the Act.
28. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find no merit in the appeal. In our view, the
reasoning and the conclusion arrived at by the two
Courts is just and proper and being in accordance
with law does not call for any interference.
29. Before we proceed to decide the appeal on
merits, we may take a note of one subsequent event,
which occurred during the pendency of this
litigation. It is the death of wife-Mrs. Pritam
(plaintiff No.2) on 12.09.2016. She left behind her
two legal representatives, namely, appellant, i.e.,
son and respondent No.1, i.e., daughter. Both being
Class I heirs would succeed to their mother's estate
12
in equal share, if she has died intestate. However, if
she has made any testamentary disposition of her
estate in favour of any person then subject to
proving the claim in accordance with law by the
person(s) concerned, the disposition of her estate
would take place accordingly.
30. We, however, express no opinion on any of
these issues because, in our view, it is not the
subject matter of this appeal and leave the parties
to work out their inter se rights, if any, in
accordance with law in the estate of Mrs. Pritam in
appropriate forum as and when occasion so arises.
31. The main question, which arises for
consideration in this appeal, is whether two Courts
below were justified in holding that the case of
appellant, i.e. Mrs. Pritam falls under Section 14 (2)
of the Act thereby she continued to enjoy only the
“life interest” in the suit house.
13
32. In other words, the question arises for
consideration in this appeal is, what is the true
nature of the right received by Mrs. Pritam in the
suit house through Will dated 24.08.1986 from her
husband, viz., "absolute" by virtue of Section 14 (1)
of the Act or "life interest" by virtue of Section 14 (2)
of the Act.
33. In order to decide the question as to whether
the appellant’s case falls under Section 14 (1) or (2)
of the Act, it is necessary to first examine as to what
is the true nature of the estate held by the testator.
Second, what the testator had intended and actually
bequeathed to his wife by his Will; and lastly, the
right in the property received by Mrs. Pritam, viz.,
absolute interest by virtue of sub-section (1) or “life
interest” by virtue of sub-section (2) of Section 14 of
the Act.
34. Coming now to the facts of the case, it is not in
dispute that the suit house was the self-acquired
14
property of late Mr. Dewan. It is also not in dispute
as one can take it from reading the contents of Will
that Mr. Dewan had intended to give only “life
interest" to his wife in the suit house, which he gave
to her for the first time by way of disposition of his
estate independent of her any right. It is also not in
dispute that it was confined to a right of residence
to live in the suit house during her lifetime and to
use the income earned from the suit house to
maintain herself and the suit house. It is also not
in dispute that the testator gave to his son ground
floor of the suit house and first floor to his daughter
with absolute right of ownership. The testator also
permitted both of them to get their names mutated
in the municipal records as absolute owners and
also get them assessed as owners in the wealth tax
assessment cases.
35. So far as other properties, viz., one plot at
Ghaziabad, share in HUF and moveable properties
15
were concerned, Mr. Dewan gave these properties to
Mrs. Pritam-his wife absolutely.
36. It is a settled principle of law that what the
testator intended to bequeath to any person(s) in his
Will has to be gathered primarily by reading the
recitals of the Will only.
37. As mentioned above, reading of the Will would
go to show that it does not leave any kind of
ambiguity therein and one can easily find out as to
how and in what manner and with what rights, the
testator wished to give to three of his legal
representatives his self acquired properties and how
he wanted to make its disposition.
38. Law relating to interpretation of Section 14 (1)
and (2) of the Act is fairly well settled by series of
decisions of this Court. However, the discussion on
the interpretation of Section 14 (1) and (2) of the Act
can never be complete without mentioning the first
leading decision of this Court in V. Tulasamma &
16
Ors. vs. Sesha Reddy(Dead) by L.Rs. (1977) 3 SCC
99. In this decision, Their Lordships (Three Judge
Bench) interpreted succinctly sub-sections (1) and
(2) of Section 14 of the Act and then on facts
involved in that case held that the case falls under
Section 14(1) of the Act. This decision is referred by
this Court in every subsequent case dealing with
the issue relating to Section 14 of the Act and then
after explaining its ratio has applied the same to the
facts of each case to find out as to whether the case
on hand attracts Section 14(1) or 14(2) of the Act.
Indeed, we find that attempts were made in past for
reconsideration of the law laid down in V.
Tulasamma (supra), but this Court consistently
turned down the request. (see-Gullapalli Krishna
Das vs. Vishnumolakayya Venkayya & Anr. (1978)
1 SCC 67, Bai Vajia (Dead) by L.Rs. vs.
Thakorbhai Chelabhai & Ors., (1979) 3 SCC 300
and Thota Sesharathamma & Anr. vs. Thota
17
Manikyamma (Dead) by L.Rs. & Ors., (1991) 4
SCC 312 ).
39. In the case of V. Tulasamma(supra), the
learned Judge, Justice S. Murtaza Fazal Ali,
speaking for the Bench, succinctly and in a lucid
manner while analyzing the true scope of Section
14(1) and (2) of the Act held as under :
“Section 14(1) and the Explanation thereto of
the Hindu Succession Act, 1956 provide that
any property possessed by a female Hindu,
whether acquired before or after the
commencement of the 1956 Act, shall be
held by her as full owner thereof and not as a
limited owner; and that ‘property’ includes
both movable and immovable property
acquired by her by inheritance or devise, or
at a partition, or in lieu of maintenance or
arrears of maintenance, or by gift from any
person, whether from a relative or not,
before, at or after her marriage, or by her own
skill or exertion, or by purchase or by
prescription, or in any other manner
whatsoever, and also any such property held
by her as stridhana immediately before the
commencement of the 1956 Act. The
language is in the widest possible terms and
must be liberally construed in favour of the
females so as to advance the object of the Act
and promote the socio-economic ends,
namely, to enlarge her limited interest to
absolute ownership in consonance with the
changing temper of the times sought to be
achieved by such a long legislation.
18
Section 14(2) provides that nothing
contained in Section 14(1) shall apply to any
property acquired by way of gift or under a
will or any other instrument or under a
decree or order of a civil court or under an
award where the terms of the gift, will or
other instrument or decree, order or award
prescribes a restricted estate in such
property. It is in the nature of a proviso and
has a field of its own without interfering with
the operation of Section 14(1) materially.
The proviso should not be construed in a
manner so as to destroy the effect of the
main provision or the protection granted by
Section 14(1) or in a way so as to become
totally inconsistent with the main provision.
Section 14(2) applies only to
instruments, decrees, awards, gifts, etc.
which create independent and new titles in
favour of the females for the first time and
has no application where the instrument
concerned merely seeks to confirm, endorse
declare or recognize pre-existing rights. In
such cases, a restricted estate in favour of a
female is legally permissible and section
14(1) will not operate in that sphere. Where,
however, an instrument merely declares or
recognizes a pre-existing right such as a
claim to maintenance or partition or share to
which the female is entitled, Section 14(2)
has absolutely no application and the
female’s limited interest would automatically
be enlarged into an absolute one by force of
Section 14(1) and the restrictions placed, if
any, under the document would have to be
ignored. Thus, where a property is allotted or
transferred to a female in lieu of
maintenance or a share at a partition, the
instrument is taken out of the ambit of
sub-section (2) and would be governed by
Section 14(1) despite any restrictions placed
on the powers of the transferee.
19
The use of terms like ‘property acquired
by a female Hindu at a partition’, ‘or in lieu
of maintenance’, or ‘arrears of maintenance’
etc. in the Explanation to Section 14(1)
clearly makes sub-section (2) inapplicable to
these categories which have been expressly
excepted from the operation of sub-section
(2).
The words ‘restricted estate’ in Section
14(2) are wider than limited interest as
indicated in Section 14(1) and they include
not only limited interest but also any other
kind of limitation that may be placed on the
transferee.”
.
40. Similarly, while explaining the ratio of V.
Tulasamma (supra) and how one has to read the
ratio for being applied to the facts of a particular
case, this Court in the case of Sadhu Singh vs.
Gurudwara Sahib Narike & Ors., (2006) 8 SCC 75
again succinctly discussed the applicability of
Section 14 (1) and (2) of the Act and on facts
involved therein held that the facts involved would
attract Section 14(2) of the Act. Justice
Balasubramanyan speaking for two Judge Bench
held in paras 13 and 14 and 15 as under:
20
“13. An owner of property has normally the
right to deal with that property including the
right to devise or bequeath the property. He
could thus dispose it of by a testament.
Section 30 of the Act, not only does not
curtail or affect this right, it actually
reaffirms that right. Thus, a Hindu male
could testamentarily dispose of his property.
When he does that, a succession under the
Act stands excluded and the property passes
to the testamentary heirs. Hence, when a
male Hindu executes a will bequeathing the
properties, the legatees take it subject to the
terms of the will unless of course, any
stipulation therein is found invalid.
Therefore, there is nothing in the Act which
affects the right of a male Hindu to dispose of
his property by providing only a life estate or
limited estate for his widow. The Act does
not stand in the way of his separate
properties being dealt with by him as he
deems fit. His will hence could not be
challenged as being hit by the Act.
14. When he thus validly disposes of his
property by providing for a limited estate to
his heir, the wife, the wife or widow has to
take it as the estate falls. This restriction on
her right so provided, is really respected by
the Act. It provides in Section 14(2) of the
Act, that in such a case, the widow is bound
by the limitation on her right and she cannot
claim any higher right by invoking Section
14(1) of the Act. In other words, conferment
of a limited estate which is otherwise valid in
law is reinforced by this Act by the
introduction of Section 14(2) of the Act and
excluding the operation of Section 14(1) of
the Act, even if that provision is held to be
attracted in the case of a succession under
the Act. Invocation of Section 14(1) of the
Act in the case of a testamentary disposition
21
taking effect after the Act, would make
Sections 30 and 14(2) redundant or otiose. It
will also make redundant, the expression
“property possessed by a female Hindu”
occurring in Section 14(1) of the Act. An
interpretation that leads to such a result
cannot certainly be accepted. Surely, there is
nothing in the Act compelling such an
interpretation. Sections 14 and 30 both have
play. Section 14(1) applies in a case where
the female had received the property prior to
the Act being entitled to it as a matter of
right, even if the right be to a limited estate
under the Mitakshara law or the right to
maintenance.
15. Dealing with the legal position
established by the decisions in Tulasamma1
and Bai Vajia v. Thakorbhai Chelabhai13
the position regarding the application of
Section 14(2) of the Act is summed up in
Mayne on Hindu Law thus:
“Sub-section (2) of Section 14
applies to instruments, decrees,
awards, gifts, etc., which create
independent and new title in
favour of females for the first
time and has no application where
the instruments concerned
merely seek to confirm, endorse,
declare or recognise pre-existing
rights. The creation of a
restricted estate in favour of a
female is legally permissible and
Section 14(1) will not operate in
such a case. Where property is
allotted or transferred to a female
in lieu of maintenance or a share
at partition the instrument is
taken out of the ambit of
sub-section (2) and would be
22
governed by Section 14(1) despite
any restrictions placed on the
powers of the transferee.”(See p.
1172 of the 15th Edn.)”
41. Reading of the aforementioned principle of law
laid down in the cases of V. Tulasamma and Sadhu
Singh (supra), it is clear that the ambit of Section
14(2) of the Act must be confined to cases where
property is acquired by a female Hindu for the first
time as a grant without any pre-existing right,
under a gift, will, instrument, decree, order or
award, the terms of which prescribe a “restricted
estate” in the property. Where, however, property is
acquired by a Hindu female at a partition or in lieu
of right of maintenance, it is in virtue of a
pre-existing right and such an acquisition would not
be within the scope and ambit of Section 14(2) of
the Act, even if the instrument, decree, order or
award allotting the property prescribes a “restricted
estate” in the property.
23
42. Applying the principle laid down in the
aforementioned two cases to the facts of the case on
hand, we are of the considered opinion that the case
of plaintiff No.2-Mrs. Pritam does not fall under
Section 14 (1) of the Act but it squarely falls under
Section 14 (2) of the Act. In other words, in our
view, in the facts of this case, the law laid down in
Sadhu Singh’s case(supra) would apply.
43. A fortorari, plaintiff No.2-late Mrs.Pritam
received only “life interest” in the suit house by the
Will dated 24.06.1986 from her late husband and
such “life interest” was neither enlarged nor ripened
into an absolute interest in the suit house and
remained “life interest”, i.e., “restricted estate” till
her death under Section 14(2) of the Act. This we
say for following factual reasons arising in the case.
44. First, the testator-Mr.Dewan being the
exclusive owner of the suit house was free to
24
dispose of his property the way he liked because it
was his self earned property.
45. Second, the testator gave the suit house in
absolute ownership to his son and the daughter and
conferred on them absolute ownership. At the same
time, he gave only “life interest” to his wife, i.e., a
right to live in the suit house which belonged to son
and daughter. Such disposition, the testator could
make by virtue of Section 14 (2) read with Section
30 of the Act.
46. Third, such “life interest” was in the nature of
“restricted estate” under Section 14(2) of the Act
which remained a “restricted estate” till her death
and did not ripen into an “absolute interest” under
Section 14(1) of the Act. In other words, once the
case falls under Section 14(2) of the Act, it comes
out of Section 14(1). It is permissible in law
because Section 14(2) is held as proviso to Section
14(1) of the Act.
25
47. Fourth, the effect of the Will once became
operational after the death of testator, the son and
the daughter acquired absolute ownership in the
suit house to the exclusion of everyone whereas the
wife became entitled to live in the suit house as of
right. In other words, the wife became entitled in
law to enforce her right to live in the suit house qua
her son/daughter so long as she was alive. If for
any reason, she was deprived of this right, she was
entitled to enforce such right qua son/daughter but
not beyond it. However, such was not the case
here.
48. Fifth, the testator had also given his other
properties absolutely to his wife which enabled her
to maintain herself. Moreover, a right to claim
maintenance, if any, had to be enforced by the wife.
She, however, never did it and rightly so because
both were living happily. There was, therefore, no
26
occasion for her to demand any kind of
maintenance from her husband.
49. Sixth, it is a settled principle of law that the
“life interest” means an interest which determines
on the termination of life. It is incapable of being
transferred by such person to others being personal
in nature. Such person, therefore, could enjoy the
“life interest” only during his/her lifetime which is
extinguished on his/her death. Such is the case
here. Her “life interest” in the suit house was
extinguished on her death on 12.09.2016.
50. Seventh, as mentioned above, the facts of the
case on hand and the one involved in the case of
Sadhu Singh (supra) are found to be somewhat
similar. The facts of the case of Sadhu Singh were
that the husband executed a Will in favour of his
wife of his self-acquired property in 1968. Though
he gave to wife absolute rights in the properties
bequeathed but some restrictions were put on her
27
right to sell/mortgage the properties and further it
was mentioned in the Will that the said properties
after wife’s death would go to testator’s nephew.
Due to these restrictions put by the testator on his
wife’s right to sell/mortgage, it was held that the
wife received only the “life interest” in the properties
by Will and such “life interest”, being a “restricted
estate” within the meaning of Section 14(2) of the
Act, did not enlarge and nor ripen into the absolute
interest under Section 14(1) but remained a “life
interest” i.e. “restricted estate” under Section 14(2)
of the Act. It was held that such disposition made
by the husband in favour of his wife was
permissible in law in the light of Section 14(2) read
with Section 30 of the Act. In our view, the facts of
the case on hand are similar to the facts of Sadhu
Singh’s case(supra) and, therefore, this case is fully
covered by the law laid down in Sadhu Singh's
case.
28
51. In view of foregoing discussion, we are of the
considered opinion that there is no error in the
impugned judgment, which has rightly held that the
case of Mrs. Pritam (Plaintiff No.2) falls under
Section 14 (2) of the Act insofar as it relates to the
suit house.
52. We, therefore, find no merit in the appeal,
which thus fails and is accordingly dismissed.

 …........................................J.
 [R.K. AGRAWAL]

 ...……..................................J.
 [ABHAY MANOHAR SAPRE]
New Delhi;
December 12, 2017
29

whether by notice dated 07.09.2001 the landlord has waived his right of eviction. From the averments of notice, as quoted above, it is clear that tenancy was terminated and landlord contemplated eviction of the tenant. We thus are of the view that there is no question of the waiver of eviction- “Whether the plaintiff has any right to evict the respondent from the disputed property?”= the landlord was clearly insisting on termination of the tenancy and was also mentioning a cause of action of not handing over of the possession. In these circumstances, we are of the view that it cannot be held that there was any waiver of relief of eviction either on the notice or in the suit. Formal prayer has already been added in the plaint seeking possession of shop after eviction which amendment was allowed by the High Court in its judgment dated 05.08.2008. We are thus of the view that High Court committed an error in setting aside the judgment and decree of the Judge, Small Causes Court.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JUJRISDICTION
CIVIL APPEAL NO. 20833 OF 2017
ARISING OUT OF SLP (C) NO. 33994 OF 2014
TRILOK SINGH CHAUHAN ... APPELLANT
VERSUS
RAM LAL(DEAD) THR. LRS & ORS ... RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
1. This appeal has been filed against the judgment dated
26.08.2014 of High Court of Uttarakhand in Civil Revision
No. 32 of 2010 by which judgment High Court has allowed
the Revision and set aside the order passed by the Judge,
Small Causes Court directing the eviction of the
respondent-tenant with recovery of rent and damages. The
landlord aggrieved by the judgment has come up in this
appeal.
2. Brief facts of the case, necessary to be noted for
deciding this appeal are:
The appellant is the owner of Shop No. 46 Adarsh Gram
Chauhan Market, Yatra Bus Station, Rishikesh. The
2
respondent is carrying on business of clothe merchant in
the shop as tenant. A notice dated 07.09.2001 was issued
that respondent has not paid the rent of above-mentioned
shop from December, 2000 till present date. The rate of
rent was claimed as Rs. 1500/- per month. Notice was
given to pay the whole outstanding rent with interest
within one month from the receipt of the notice, failing
which tenancy shall be treated as terminated. After
prescribed period damages at the rate of Rs. 50/- per day
were also claimed. As notice was not replied, the
appellant filed a Small Causes Case No. 32 of 2001 in the
Court of Additional District Judge praying for recovery
of rent with compensation and expenses and any other
relief. The written statement was filed by the respondent
where he denied the rate of rent to be Rs. 1500/- per
month. It was stated that the rate of rent is only Rs.
250/- per month and since October 1994, he is carrying on
business of clothe. It was stated that the plaintiff has
already received the rent for the month of August, 2001
but he did not issue any receipt. Appellant has stopped
to receive the collection of rent from September, 2001.
The respondent forwarded the total rent of Rs. 1250/- for
the period of September, 2001 to January, 2002 at the
3
rate of Rs.250/- per month through money order which was
denied, stating that 'it is denied to accept due to this
amount is less than the actual amount'. Respondent
pleaded that premises is covered by U.P. Act No. 13 of
1972. Trial Court by order dated 13.05.2004 framed ten
issues. An application for amendment was filed by
appellant for adding a prayer 'that the plaintiff may be
given possession of disputed shop which is stated in the
list of property annexed at the end of the plaint after
evicting the respondent from the above shop'. The
amendment application was although rejected by the Trial
Court on 25.4.2007, but the High Court by an order dated
05.08.2008 allowed the amendment application subject to
payment of cost of Rs. 3000/-.
3. High Court also allowed three week's time to
respondent to file amended written statement. Additional
counter statement was filed by the respondent. Trial
Court framed an additional issue on 20.01.2009 which is
to the following effect:
“1. Whether the plaintiff has waived to oppose
for eviction in his notice dated 07.09.2001?
If yes, whether the required relief added by
the plaintiff is barred to the limitation as
stated in the additional counter statement.”
4
4. Parties led their evidences before the Trial Court
including the documentary evidences. Trial Court after
considering the evidences of the parties decided issue
No. 1 in favour of the appellant that rate of rent is
Rs.1500/- per month. Other issues were also decided in
favour of the appellant, consequently, the Trial Court
passed a decree of eviction against the respondent-tenant
with balance amount of payment of rent and damages at the
rate of Rs. 50/- per day.
5. Aggrieved by the above-said judgment, the respondent
filed a Revision before the High Court. The Revision
filed by the respondent was under Section 25 of the
Provincial Small Cause Courts Act, 1887(hereinafter
referred to as 'Act, 1887'). The High Court vide its
judgment allowed the Revision and set aside the judgment
and decree of the Trial Court holding that rate of rent
is Rs. 250/- per month and not Rs. 1500/- per month.
High Court also made observation against the landlord
that the motive of landlord is to secure the possession
back and profit hunting.
5
6. Learned counsel for the appellant submits that the
High Court committed error in upsetting the findings of
fact regarding rate of rent which was held by the Trial
Court as Rs. 1500/- per month but reversed by the High
Court holding it to be Rs. 250/- per month only. It was
further stated that the tenant is in possession of shop
for nineteen years and although tenancy was terminated by
landlord after one month of the service of the notice,
appellant could not get the possession of the shop. The
counsel for the appellant referring to Page No. 88 and 89
of the paper book submits that Trial Court has given
cogent reasons and considered relevant evidence for
recording a finding that rate of rent is Rs. 1500/- per
month which has been set aside by the High Court.
7. Learned counsel appearing for the respondent,
refuting the submission of the learned counsel for the
appellant contends that the Trial Court while decreeing
the suit had not adverted to the additional issues which
were framed by the Trial Court on 20.01.2009. He submits
that Trial Court having not adverted to additional
issues, the Revisional Court has rightly set aside the
judgment and order of the Trial Court and dismissed the
6
suit.
8. We have considered the submissions of the learned
counsel for both the parties and perused the record.
9. The basis of judgment of the High Court in setting
aside the judgment of the Trial Court is the reversal of
the findings regarding rate of rent. As noted above, the
case of the plaintiff was that the rate of rent is Rs.
1500/- per month whereas the case of the tenant was that
rate of rent was Rs. 250/- per month. The High Court
while coming to the conclusion that the rate of rent is
Rs. 250/- per month gave following reasonings:
"I have perused the impugned judgment of the
trial court and find the force in the argument
so submitted by the learned counsel of the
revisionist and instead remanding the case and
lingering this old litigation further between
the parties, I am of the view that no rent due
was payable to the landlord at the time of
issuing the notice dated 07.09.2001.
Relatively, the oral testimony of the landlord
is rebutted by the oral testimony of the
tenant, revealing the fact that the tenanted
premises was taken on the rent to the tune of
Rs. 250/- per month with a payment of premium
of Rs. 1,20,000/- wherefor no receipt was
issued by the landlord to the revisionist. The
fact can not be over sighted that this is in
quite prevalent practice in such matters that
7
the landlord takes the lump sump premium from
the tenant, as has been taken in the instant
case. After taking such a hefty premium, the
rent must not be more than what it has been
stated way back in the year 1994.
No additional reliable testimony has been
brought by the landlord on record to create
the force in his pleadings.”
10. Learned counsel for the appellant has referred to
findings of the Trial Court at Page No. 88 and 89. It is
useful to refer to the discussions made by the Trial
Court deciding the Issue No. 1, which issue was whether
the respondent is tenant in the disputed shop of the
plaintiff for the rate of rent, a sum of Rs. 1500/- per
month? The discussion of the Trial Court at Page No. 88
to 90 is as follows:
“.....In support of the above statement, the
plaintiff produced the Evaluation List for the
period 2004-2009 issued by the Executive
Officer, Nagar Palika, Rishikesh vide document
no. 96Ga. Though, it also clearly proves that
the rent of above disputed property is equaled
to Rs. 1500/- per month. The respondent has
not filed any documentary evidence to oppose
the above fact which it can be proved that the
rent of the above disputed shop is equaled to
Rs. 250/- per month in place of Rs. 1500/-
month.
It clearly proves from the statements of
the above witnesses and the documentary
evidence available on record that any written
agreement regarding the rent of the questioned
property has neither been made between the
8
parties nor filed any rent receipt by the
respondent against the payment of rent though
it is accepted by both the parties that the
plaintiff himself used to come at shop for the
collection of rent and the respondent used to
acknowledge the entry of this payment of rent
in his diary at the shop.
The respondent ought to have proved this
fact that the rent of the above questioned
shop was equaled for sum of Rs. 250/- per
month. The respondent should have produced
the above diary, which was important
documentary evidence and having under the
possession of the respondent and the
signatures of the plaintiff were also taken in
this diary, therefore, the adverse presumption
shall be taken against respondent u/s 114 of
the Evidence Act due to having not to produce
the above diary. This fact cannot be proved by
the respondent; therefore, after analyzing the
above facts, I am of the view that there is
not present any ground to disbelieve the
statement of the plaintiff in which he stated
the rent was equaled for sum of Rs. 1500/- per
month.....”
11. The findings recorded by the Trial Court were based
on evidence brought on record. A reference to Evaluation
List for the period 2004-2009 by the Executive Officer,
Nagar Palika, Rishikesh vide document No. 96Ga was also
mentioned. Trial Court has further drawn an adverse
inference against respondent that he had not produced the
diary in which acknowledgment of the entry of the payment
of rent was made by the appellant. The entire discussion
of the High Court as extracted above, does not refer to
9
above two factors which weighed that the Trial Court in
coming to the conclusion that rate of rent is Rs. 1500/-
per month. We thus are of the clear opinion that High
Court committed an error in setting aside the findings of
the Trial Court on the rate of rent.
12. The High Court was exercising the jurisdiction under
Section 25 of the Act, 1887 which provision is as
follows:
"Sec. 25. Revision of decrees and orders of
Courts of Small Causes:
The High Court, for the purpose of
satisfying itself that a decree or order made
in any case decided by a Court of Small Causes
was according to law, may call for the case
and pass such order with respect thereto as it
thinks fit.”
13. The scope of Section 25 of the Act, 1887 came for
consideration before this Court on several occasions. In
Hari Shankar & Ors. Vs. Rao Girdhari Lal Chowdhury, AIR
1963 SC 698, in Para Nos. 9 and 10, this Court laid down
the following:
“9. The section we are dealing with, is almost
the same as Section 25 of the Provincial Small
Cause Courts Act. That section has been
considered by the High Courts in numerous
10
cases and diverse interpretations have been
given. The powers that it is said to confer
would make a broad spectrum commencing, at one
end, with the view that only substantial
errors of law can be corrected under it, and
ending, at the other, with a power of
interference a little better than what an
appeal gives. It is useless to discuss those
cases in some of which the observations were
probably made under compulsion of certain
unusual facts. It is sufficient to say that we
consider that the most accurate exposition of
the meaning of such sections is that of
Beaumont, C.J. (as he then was) in Bell & Co.
Ltd. v. Waman Hemraj, (1938) 40 Bom LR 125:
(AIR 1938 Bom 223) where the learned Chief
Justice, dealing with Section 25 of the
Provincial Small Cause Courts Act, observed:
"The object of Section 25 is to
enable the High Court to see that there
has been no miscarriage of justice,
that the decision was given according
to law. The section does not enumerate
the cases in which the Court may
interfere in revision, as does Section
115 of the Code of Civil Procedure, and
I certainly do not propose to attempt
an exhaustive definition of the
circumstances which may justify such
interference; but instances which
readily occur to the mind are cases in
which the Court which made the order
had no jurisdiction, or in which the
Court has based its decision on
evidence which should not have been
admitted, or cases where the
unsuccessful party has not been given a
proper opportunity of being heard, or
the burden of proof has been placed on
the wrong shoulders. Wherever the Court
comes to the conclusion that the
unsuccessful party has not had a proper
trial according to law, then the Court
11
can interfere. But, in may opinion, the
Court ought not to interfere merely
because it thinks that possibly the
Judge who heard the case may have
arrived at a conclusion which the High
Court would not have arrived at.”
This observation has our full concurrence.
10. What the learned Chief Justice has said
applies to Section 35 of the Act, with which
we are concerned. Judged from this point of
view, the learned single Judge was not
justified in interfering with a plan finding
of fact and more so, because he himself
proceeded on a wrong assumption.”
14. Another judgment which needs to be noted is judgment
of this Court in Mundri Lal Vs. Sushila Rani(Smt) & Anr.,
(2007) 8 SCC 609. This Court held that jurisdiction
under Section 25 of the Act, 1887 is wider than the
Revisional Jurisdiction under Section 115 C.P.C. But
pure finding of fact based on appreciation of evidence
may not be interfered with, in exercise of jurisdiction
under Section 25 of the Act, 1887. The Court also
explained the circumstances under which, findings can be
interfered with in exercise of jurisdiction under Section
25. There are very limited grounds on which there can be
interference in exercise of jurisdiction under Section
25; they are, when (i) Findings are perverse or
(ii)based on no material or (iii) Findings have been
arrived at upon taking into consideration the
12
inadmissible evidences or (iv) Findings have been arrived
at without consideration of relevant evidences.
15. Present is not a case where High Court set aside the
finding of the Trial Court on any of above grounds where
Revisional Court under Section 25 can interfere. High
Court has not even referred to the reasons given by the
Trial Court while coming to the conclusion that the rate
of rent is Rs. 1500/ per month. We thus are of the view
that judgment of the High Court is unsustainable.
16. The submission which has been much pressed by the
learned counsel for the respondent is that Trial Court
has not adverted to the additional issues which were
framed by the Judge, Small Causes Court after allowing
the amendment. The additional issue was as to whether
the plaintiff has waived to oppose for eviction in his
notice dated 07.09.2001 and whether the prayer for relief
added by the plaintiff is barred by limitation. The
notice dated 07.09.2001 brought on record by the
appellant as Annexure P.1. Notice after setting out facts
and claim in last paragraph states as follows:
“Therefore, you are hereby given the notice
13
that you should pay the whole outstanding rent
of my client from December 2000 to till today
at the rate of Rs. 1500/- per month with
interest within one month from the date of
receipt of this notice and the tenancy be
terminated and shall be treated as terminate
after passing above prescribed period. You
shall also be liable to pay the compensation
at the rate of Rs. 50/- per day to my client
after passing the above limitation and the
suit will be filed against you before the
competent court, for which you will be sole
responsible for all the costs and expenses.
You should pay the expenses of notice for sum
of Rs. 500/-. You are informed hereby that
the copy of this notice has been put into
custody at my office for further need. The
second copy of this notice is being forwarded
to you through U.P.C. Post.”
17. The notice clearly contemplated the termination of
the tenancy after expiry of one month. It is relevant to
note that the High Court in its judgment has noted the
arguments of revisionists regarding non-decision of the
additional issues. The High Court noticed the aforesaid
submission in following words:
“Learned counsel of the revisionist has
vehemently argued that none of such added
point of determination has been dealt with by
the court below in the body of the judgment,
much less any finding on either of them....”
18. High Court although noted the above submission but
has not proceeded to examine the above contention or
14
recorded any finding in favour of the respondent. Trial
Court had already framed Issue No. 9 to the following
effect: “Whether the plaintiff has any right to evict the
respondent from the disputed property?” The issue was
answered in favour of plaintiff.
19. Although, the above argument was not adverted by the
High Court but since the respondent has raised the
argument before us, it is necessary to consider the
above-said argument. The additional issue as noticed
above is as to whether by notice dated 07.09.2001 the
landlord has waived his right of eviction. From the
averments of notice, as quoted above, it is clear that
tenancy was terminated and landlord contemplated
eviction of the tenant. We thus are of the view that
there is no question of the waiver of eviction. The
prayer of eviction which was formally added by amendment
can not be said to be barred by time since suit was
filed in the year 2001 itself. It was clearly pleaded in
the plaint that in spite of the service of notice
neither payment of balance amount of rent has been made
nor the possession of the shop has been given to the
respondent, even after, terminating the tenancy. In para
15
4 of the plaint following was stated:
“4. That the tenancy of the respondent had
been terminated by the plaintiff through above
notice but the above shop of the plaintiff had
neither been vacated nor entrusted the
possession by the respondent. The respondent
did not receive this notice deliberately. The
denial of acceptance of the service of above
notice was recorded on the envelope of above
registered post. It was necessary to file the
above case due to non-compliance of above
notice, do not make the payment of balance
amount of rent and do not delegate the
possession of the shop to the plaintiff by the
respondent even after terminating tenancy.”
20. Thus, the landlord was clearly insisting on
termination of the tenancy and was also mentioning a
cause of action of not handing over of the possession. In
these circumstances, we are of the view that it cannot be
held that there was any waiver of relief of eviction
either on the notice or in the suit. Formal prayer has
already been added in the plaint seeking possession of
shop after eviction which amendment was allowed by the
High Court in its judgment dated 05.08.2008. We are thus
of the view that High Court committed an error in setting
aside the judgment and decree of the Judge, Small Causes
Court.
21. In result, the appeal is allowed. The judgment and
16
order of the High Court is set aside and decree of the
Judge, Small Causes Court is restored. The parties shall
bear their own costs.
......................J.
 (A. K. SIKRI)
......................J.
 (ASHOK BHUSHAN)
NEW DELHI,
December 11, 2017

Section 108 of TLR&LR Act reads as follows :- “108. (1) The interest of under-raiyat in any land held by him as such shall be heritable but, save as otherwise provided in this Act, shall not be transferable. (2) No under-raiyat shall be evicted from his land except as provided in this Act.”= The protection under Section 108 of the TLR&LR Act which is a statutory protection could not have been taken away by the subterfuge committed by the then raiyat. = This is what Section 108 prohibits. The plaintiffs who were subsequent purchasers cannot take benefit of the subterfuge and fraud committed by Sayed Jama Kazi and Mohd. Aftaruddin. Their remedy, if any, lay in taking action against Sayed Jama Kazi and Mamataj Begam, who were not even impleaded as parties in the suit.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9040 OF 2013
Aftaruddin (Dead) Rep. Thr. Lrs. .…Appellant(s)
Vs.
Ramkrishna Datta alias Babul Datta & Ors. ..Respondent(s)
J U D G M E N T
Deepak Gupta, J.
1. Ramkrishna Datta, Dhirendra Chandra Ghosh and
Lalit Mohan Ghosh, filed a suit in the trial court for
declaration of their title on the suit land with consequential
relief of permanent injunction for restraining Aftarduddin
(contesting defendant & appellant before this Court), who
has since expired and is represented by legal heirs, from
interfering in the suit land.
2
2. From the facts as pleaded and proved before the trial
court it is apparent that one Sayed Jama Kazi was the raiyat
(owner) of the suit land. Aftaruddin was under-raiyat (Kurfa
rights similar to tenancy rights). This fact is apparent from
the Revenue Record as reported in the Civil Survey of
Settlement for the year 1965-66 and in the Revenue
Khatiyan No.302 published on 15.03.96. On 11.01.71,
Aftaruddin is alleged to have executed a sale deed
transferring the entire suit land in favour of Mamataj
Begam, daughter of the raiyat Sayed Jama Kazi. Thereafter,
Mamataj Begam and Sayed Jama Kazi transferred the suit
land to plaintiffs 1 and 2 by registered sale deed on
27.11.71. On 06.04.81 plaintiff no.2 sold and transferred a
portion of his land to plaintiff no.3. In the Revenue Record
the defendant Aftaruddin was shown to be in possession of
the suit land. Therefore, the plaintiffs filed a suit for
declaration of their title and prayed for injunction that
defendant no.1 be restrained from interfering in the
suit land.
3
3. The suit was contested by Aftaruddin and two
contentions were raised: (i) that the sale deed was never
executed by him and (ii) that being an under-raiyat he could
not transfer his rights to any person in view of the bar
created by Section 108 of the Tripura Land Revenue and
Land Reforms Act, 1960 (for short the ‘TLR&LR Act’). The
original sale deed was not produced on the ground that the
same was destroyed in fire but a certified copy of the same
was produced. The trial court held that though the sale
deed had been executed, Aftaruddin could not have
transferred his rights in the suit land and, therefore,
dismissed the suit. The First Appeal filed was also
dismissed. In the Second Appeal this concurrent finding of
fact was set aside on the ground that it was a perverse
finding. It was held by the High Court that in the sale deed
Aftaruddin has represented himself to be a raiyat and not an
under-raiyat and, therefore, Section 108 of TLR&LR Act had
no application. The High Court also found that in terms of
Section 43 of the Transfer of Property Act the subsequent
vendee could not be denied their rights.
4
4. We have heard learned counsel for the appellant. A
“raiyat” has been defined in Section 2(s) of the TLR&LR Act
to mean a person who owns land for purposes of
agriculture, paying land revenue to the Government; and
“under-raiyat” under Section 2(v) means a person who
cultivates or holds the land of raiyat under an agreement,
express or implied, on condition of paying therefor rent in
cash or in kind or delivering a share of the produce and
includes a bargadar, i.e. a person who cultivates the land of
any person on a condition of delivering a share of the
produce to the land owner or raiyat.
5. Section 108 of TLR&LR Act reads as follows :-
“108. (1) The interest of under-raiyat in any land
held by him as such shall be heritable but, save as
otherwise provided in this Act, shall not be
transferable.
 (2) No under-raiyat shall be evicted from
his land except as provided in this Act.”
A bare reading of the aforesaid provision makes it absolutely
clear that an under-raiyat is prohibited from transferring his
5
interest as under-raiyat in any land though this interest is a
heritable interest. Sub-section (2) provides that no underraiyat
can be evicted except in accordance with the
provisions of the TLR&LR Act. The TLR&LR Act was enacted
as an agrarian reform legislation and the purpose of Section
108 is to prevent the under-raiyats or tenants from being
evicted or being forcefully or dishonestly compelled to
transfer their rights as under-raiyats.
6. The learned Single Judge laid great emphasis on the
fact that in the sale deed Aftaruddin is described to be a
raiyat. This cannot in any manner validate the sale deed
which is otherwise totally against law. Obviously, a SubRegistrar
could not have registered a sale deed where the
seller has described himself as an under-raiyat. We may
also add that the vendee Mamataj Begam was none other
than the daughter of Sayed Jama Kazi, the raiyat. A few
months after Aftaruddin executing the sale deed on
11.01.71, Mamataj Begam and her father Sayed Jama Kazi
sold the entire land in favour of the plaintiffs/respondents
6
on 27.11.71. It is obvious that the sale deed dated 11.01.71
was got executed showing Aftaruddin as a raiyat to get over
the bar of Section 108. This is what Section 108 prohibits.
The plaintiffs who were subsequent purchasers cannot take
benefit of the subterfuge and fraud committed by Sayed
Jama Kazi and Mohd. Aftaruddin. Their remedy, if any, lay
in taking action against Sayed Jama Kazi and Mamataj
Begam, who were not even impleaded as parties in the suit.
The High Court totally mis-interpreted the provisions of
Section 108.
7. In 1987 Aftaruddin was conferred the rights of the
raiyat. It was contended on behalf of the plaintiffs that in
view of Section 43 of the Transfer of Property Act since
Aftaruddin is now entitled to transfer his rights a sale deed
in their favour becomes valid. This is not at all correct. No
sale deed was executed by Aftaruddin in favour of the
plaintiffs. The fraud was not committed by Aftaruddin but
by Sayed Jama Kazi and Mamataj Begam. The protection
under Section 108 of the TLR&LR Act which is a statutory 
7
protection could not have been taken away by the subterfuge
committed by the then raiyat.
8. We are clearly of the view that the High Court exceeded
its jurisdiction in setting aside the concurrent finding of fact
without any question of law much less a substantial
question of law arising in the second appeal. Accordingly
the judgment of the High Court is set aside and the
judgment of the trial court is restored. The appeal is,
accordingly, allowed.
……………………………..J.
(Madan B. Lokur)
……………………………..J.
(Deepak Gupta)
New Delhi
December 08, 2017