RAGHUNATH KESHAVA KHARKAR versus GANESH AND OTHERS

Citation: [1964] 3 S.C.R. 520 · Decided: 02-05-1963 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Appeal(s) allowed

Judgment (excerpt)

1963 
May2, 
520 SUPRENIE COURT REPORTS (1964] VOL. 
RAGHUNATH KESHAVA KHARKAR 
v. 
GANESH AND OTHERS 
(P. B. GAJENDRAGADKAR, K. N. WANCHOO, 
and K. C. DAS GUPTA JJ.) 
l11aolvency-Devolutio11 
of property 
on UMiBcharged 
i11Boluent-8uit for poaseaaion after absolute diBakarge-Mai11-
tai11ability-Provincial Insolvency Act, 1920( 5 of 1920), ... 28 
(4),37,42,44,67 will-Oonatruction-Appeal when ca1111ot 
as a whole. 
The appellant, a Hindu reversioner, brought the suit out 
of which the appeal arose for recove,ry of certain properties 
alienated by two widows having widow's estates under the 
will of their husband. The respondents resisted the suit mainly 
on the grounds that the appellant, who was an undischarged 
insolvent at the time the succession opened, could not maintain 
the suit even after his absolute discharge as the properties must 
be taken to have vested in the official receiver and that under 
the will of their husband the widows got not 
a widow's 
estate but an absolute estate and had the right to alienate the 
properties which they did. The trial court found in favour of 
the appellant and directed delivery of possession of the proper-
ties to him. On appeal the High Court took the contrary 
view on both the points and dismissed the suit. The appel-
lant came up to this Court on the certificate granted by the 
High Court. 
Held that the High Court was in error in holding that the 
appellant could not maintain the suit. There is nothing in the 
Provincial Insolvency Act that takes away the right of the insol· 
vent to sue in courts after he is granted a discharge for he then 
becomes a free man. Though there is no specific provision in 
the Act with respect to the property that may remain undis-
posed of by the court or by the receiver, the provisions in s. 67 
. by necessary implication read in the light of the general 
scheme of the Act provides an answer to this and all such 
property must be treated as surplus to which an insolvent is 
entitled, after an absolute order of discharge is made in his 
favour, subject always to the condition that if any debts prova-
ble under the Act have not been discharged before such order1 
3 S.C.R. 
SUPREME COURT REPORTS 521 
the property will remain liable for such discharge as also the 
expenses of all proceedings under the Act till they are fully met. 
Gol..,1 v. Mitchel, (1890) 25 Q. B. D. 262; Sayad Daud 
Sayed Mahomed v. Mulna Mahomed Sayad, (1926) 28 Bom. 
L. R. 554; Yellavajjhula Suraya v. Tummalapali Mangayya, 
A.I.R. (1941) Mad. 345, Rup Nar.,in Singh v. Har Gopal 
Tewari, I. L. R. (1933), 55 All. 503; Diwan Ohand v. Ma11ak 
Ohand, A.LR. (1934) Lah. 809; Arjun Das Kundu v. March· 
hiya T•line•, I.L;R. (1937) I Cal. 127; Kanshi Ram v. Hari 
Ram, A.I.R. (1937) Lah. 87 and Parsu v. Balaji, I.L.R. 
(1944) Nag. 14, discussed. 
In order to determine the true intention of a testator, the 
clauses of the will should be read as a whole in the light of the 
surrounding circumstances as also in contrast to the other clau· 
ses and where the testator, as in the instant case, having used 
the word 'owner' in the previous clause, follows up by using the 
words "during her lifetime enjoy as owner the income in any 
manner she likes" the latter words clearly limit the bequest 
and indicate that what is given is no more than a life estate. 
Where the interests of the various defendants in possession 
of various properties are independent, the appeal cannot abate 
as a whole by reason of the heirs of a deceased defendant in 
possession of a property not having been brought on the 
record within the prescribed time. 
CIVIL APPELLATE JuRrBDIOTION: Civil Appeal 
No. 98 of 1962. 
Appeal from the judgment and decree dated 
March 7, 1957, of the Bombay High Court in First 
Appeals Nos. 897of1951 and 66 of 1952. 
S. S. Shukla, for the appellant. 
G. B. Pai, J.B. Dadachanji, 0. 0. Mathur and 
Ravinder Narain, for respondents Nos. 1, 3 and 7. 
A. V. Viswanatha Sastri and Sardar Bahadur 
for respondent No. 
. 
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R.,6 ... lh KuharNJ 
n"'"' 
.. 
Ga111sh 
114lhuuth Jr 1Sh,.a 
Ii h4rk<T 
v. 
Gone•A 
Wan<hao /. 
522 SUPREME COURT REPORTS[l964]VOL. 
1963. May 2. . The Judgment of the Court 
was delivered by 
W ANCHOO ].-This is an appeal on a certificate 
granted by the Bombay High Court and arises out 
of a suit filed by the appellant as a Hindu rever· 
sioner to recover possession of properties alienated 
by a Hindu widow. The property in suit was the 
self-acquired property of one

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