DR. MAHESH CHAND SHARMA versus SMT. RAJ KUMARI SHARMA AND OTHERS

Citation: [1995] SUPP. 6 S.C.R. 41 · Decided: 01-12-1995 · Supreme Court of India · Bench: B.P. JEEVAN REDDY · Disposal: Case Partly allowed

Judgment (excerpt)

DR. MAHESH CHAND SHARMA 
A 
v. 
SMT. RAJ KUMAR! SHARMA AND OTHERS 
DECEMBER 1, 1995 
[B.P. JEEVAN REDDY AND S.B. MAJMUDAR, JJ.] 
B 
Indian Succession Act, 1925-Section 119-Applicability-Date of vest-
ing of legacy-Property bequeathed by the testator to his wife for life and after 
her death to his legal heirs-On the date of testator's death son was the only 
legal heii--Held, legacy becomes vested in the son on the death of testator. 
C 
Indian Succession Act, 1925-S ection II 1-Exception-Applicability-J' 
A specified individual"-Meaning of-Cannot refer to or mean the testator. 
Indian Succession Act, 1925-Section 121>-Applicability-Applies only 
in case of happening of a specified uncertain event-Death is not an uncertain D 
event. 
Transfer of Prope1ty Act, 1882-Section ~"Transfer''-Meaning a/-
Settlement dwing pendency of suits between mother and son-Son challeng-
ing validity of Will made in favour of mothe1-Mother settling dispute by 
accepting son's title to the property in lieu of monthly maintenance-Held, it E 
is not a transfer of the property. 
Hindu Succession Act, 1956-Section 14(1) and (2}-Applicability 
of-Right of residence to a Hindu female alongwith a sum of money in lieu 
of maintenance-Whether ripens into full ownership on commencement of F 
the Act. 
Hindu Succession Act, 1956-Section 14(1)-.J'Possessed''-Meaning 
of-Whether actual or physical possession is necesswy. 
Limitation Act, 1963-A.rticle 65-Plea of adverse possessiott-Nature G ; 
or-Mixed question of law and fact-All facts necessary to establish adverse 
possession must be pleaded. 
Constitution of Indirr-A.rtic/es 133 and 136-Finding of Tlial Court on 
limitation no contested in appeal-Held, plea of limitation cannot be raised 
before the Supreme Court. 
H 
41 
A 
B 
c 
42 
SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R. 
On 10.4.1942, one R made a Will bequeathing one of his properties 
(Doctor's Lane property) to his wife S for life and to his legal heirs after 
her death. The Will prohibited any transfer of the property by S. R died 
in 1953 leaving behind his wife, one son (first defendant) and four 
danghters. At the time of his death, as per the prevalent law, only the son 
was the legal heir. There was litigation between the son and the mother, 
and as many as seven suits were filed. The son claimed that R has made 
another Will dated 26.9.1950 superseding his earlier Will. The suits were 
finally settled on 27.1.1955 and the mother accepted the title of the son 
over the Doctor's Lane property. The mother was given a right of residence 
in the first floor of the property. The son was to pay S maintenance 
allowance of Rs. 125 per month and in the event of the mother's decision 
not to reside in the property, a maintenance allowance of Rs. 150 per 
month was to be paid to her. After the death of the mother, the son's wife 
was to become the owner of the property. 
D 
The son, who was abroad, appointed the second defendant as bis 
general power of attorney in respect of his properties in India. The second 
defendant sold the Doctor's Lane property to his brother (third defendant) 
and his own two sons (defendant Nos. 4 and 5). 
E 
F 
G 
S died in 1972, after coming into force of the Hindu Succession Act, 
1956. One of the daughters filed a partition suit in the High Court in 
respect of all properties left behind by R and S claiming l/stb share in the 
property on the ground that by virtue of the provisions of the Hindu 
Succession Act, the daughters of R also became the legal heirs of his 
property. The learned Single Judge dismissed the suit of the daughter in 
respect of the Doctor's Lane Property. In respect of all other properties 
his suit was decreed. 
The daughter appealed under clause 10 of the Letters Patent against 
the order of the Learned Single Judge. The appeal of the daughter was 
allowed by the Division Bench which held that : 
(a) The Will dated 10.4.1942 in favour ofS is true, valid and dTective; 
(b) the Will dated 25.9.1950 alleged to have been made in favour of 
the son was not proved; 
H 
(c) the interest created in S was a life estate and not a widow's estate 
M.C. SHARMA v. R.K. SHARMA 
43 
~· 
and therefore, could not be surrendered in favour of the son; 
A 
(d) the alleged surrender under settlement dated 27.1.1955 was not 
totai and complete and, therefore, no surrender in the eyes of law; 
(e) the Will dated 10.4.1942 contemplates that the property shall 
devolve on legal heirs of Ron the death of his wife

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