Arjan Singh and Another vs Surjit Singh and Others

N.K. Kapoor, J.

It is plaintiffs'' regular second appeal against the judgment and decree of the Additional District Judge, Sangrur, whereby the judgment and decree of the Trial Court dismissing the suit of the plaintiffs was affirmed.

Briefly put, one Mit Singh, husband of Harnam Kaur, was owner in possession of 1/2 share in the agricultural land measuring 191 bighas 16 biswas and one residential house situated in village Chhahar. Mit Singh died somewhere in the year 1940. After his death, his widow Smt. Harnam Kaur inherited his estate as limited owner. Smt. Harnam Kaur (now deceased) executed a gift deed in favour of defendant Nos. 1 to 3, namely, Surjit Kaur, Mukhtiar Kaur and Gurdev Kaur alias Dalip Kaur, her daughters, in respect of agricultural land measuring 95 bighas 18 biswas including the residential house. The plaintiffs challenged the gift deed in then capacity as reversioners of Mit Singh. This suit was decreed holding that the revisionary rights of the plaintiffs would not be affected after the death of Smt. Harnam Kaur. The appeal filed against the judgment also failed and a further appeal before the High Court also met the same fate. The present suit land was allotted in lieu of the land earlier held by Smt. Harnam Kaur. It has further been pleaded that Harnam Kaur executed the mortgage deed in favour of defendent No. 4 without and legal right. She also suffered a collusive decree in favour of defendent Nos. 1 to 3. Harnam Kaur died on 1-1-1986 and so plaintiffs filed suit for possession on the basis of deeree in their favour dated 20-12-2006 B.K.

The defendants put in appearance, filed written statement and controverted the various allegations of the paintiffs. It was further pleaded that Smt. Harnam Kaur succeeded to the estate of Mit Singh as limited owner according to the custom then prevalent and became its absolute owner according to the custom then prevalent and became its absolute owner on the coming into force of the Hindu Succession Act. This way, the mortgage deed executed by her and decree suffered by her in favour of defendant Nos. 1 to 3 were perfectly legal.

On the pleadings of the parties, following issues were framed :--

Whether Harnam Kaur deceased was the limited owner of the suit land at the time of her death ? OPP.

Whether the gift deed executed by Harnam Kaur in favour of defendant Nos. 1 to 3 regarding the land measuring 95 bighas 18 biswas was declared ineffective qua the rights of the plain- tiffs? If so, its effect? OPP.

Whether the suit land was allotted in lieu of the old khasra numbers in consolidation proceedings ? OPP.

Whether three mortgage deeds executed by Harnam Kaur in favour of defendant No. 4 for Rs. 8200/-, Rs. 6000/- and Rs. 45,000/- as alleged are illegal and ineffective qua the rights of the plaintiff and are liable to be set aside ? OPP.

Whether the decree dated 19-12-1983 suffered by Harnam Kaur in favour of defendant Nos. 1 to 3 is invalid qua the rights of the plaintiff ? OPP.

Whether the plaintiffs are entitled to the declaration, possession and injunction prayed for by them ? OPP.

Whether Harnam Kaur deceased had become absolute owner of the suit property after coming into operation of Hindu Succession Act, 1956 ? OPD.

Whether the suit is not maintainable in the present form ?

Whether the suit of the plaintiff against defendant No. 4 is bad for non-service of notice under co-operative Societies Act ? OPD 4.

Whether defendant No. 4 is bona fide mortgagee? If so its effect ? OPD-4.

Relief.

Trial Court decided issue Nos. 1, 4, 5, and 6 against the plaintiffs. Issue No. 3 was decided in favour of the plaintiffs and issues Nos. 7, 8 & 10 were decided in favour of the defendants. Resultantly, the suit of the plaintiff was dismissed.

The lower Appellate Court also did not find merit in any of the contentions raised by the Counsel for the appellants and accordingly dismissed the appeal.

The first submission of the learned Counsel for the appellants is that the impugned judgments of the Courts below are not only against law but perverse too. Elaborating, the Counsel urged that both the Courts below have erred in comprehending the real matter in issue which has consequently resulted in failure of justice. It is admitted case of the parties that Mit Singh died some time in the year 1940 leaving behind the suit property which was mutated in favour of his widow Smt. Harnam Kaur. At the time the law then prevalent she acquired this property as a limited owner i.e. she was owner of the property inherited by her subject to certain restriction on alienation and subject to its devolving upon the next heirs of the lawful owner upon her death. Since the widow bad no right to alienate the estate so inherited except for religious or charitable purposes or for any other purpose amounting to legal necessity the present appellant the challenged the gift deed executed by her in favour of her daughters, namely, Surjit Kaur, Mukhtiar Kaur & Gurdev Kaur alias Dalip Kaur, which claim was decreed by the Trial Court, maintained by the first Appellate Court & the appeal filed by Harnam Kaur was dismissed by the High Court on 17-11-1954. Since this decree dt. 17-11-1954 attained finality, Smt. Harnam Kaur was not possessed of any property at the time of enforcement of Hindu Succession Act. i.e. 17-6-1956 and this way the con elusion of the Courts below that the limited ownership right of Smt. Harnam Kaur matured into full ownership in terms of Section 14 of the Hindu Succession Act was nothing but perverse. The gift deed executed in favour of the defendants was valid qua Smt. Harnam Kaur and in view of this no property was left which could be said to have been possessed by her on the coming into force of Hindu Succession Act. In support of his contention the Counsel relied upon the Apex Court judgments in cases reported as Kuldip Singh and Ors. v. Swain Singh and Ors. 1968 P.L.R 30 - Munshi Singh and Others Vs. Sohan Bai and Others, ; Kalawatibai Vs. Soiryabai and others, and Full Bench judgment of this Court in case reported as Mst. Parmeshwari (Deceased) Represented by her Legal Representatives Vs. Mst. Santokhi, . The learned Counsel for the respondents in support of the conclusion of the Courts below has, however, contended that the plaintiffs claim vide which the gift deed was held to be null and void qua their rights was, in fact claim made by them being reversioners of Mit Singh and their right to seek possession accrued only on the death of Smt. Harnam Kaur. As per appellants'' own case, the gift deed has been held to be null and void and this being so, it should be so construed as, in fact, no gift was made by Smt Harnam Kaur. Thus, Harnam Kaur who though was limited owner before the enforcement of the Hindu Succession Act became its full owner thereafter as she has died in the year 1986. The respondents who are daughters would succeed in preference to the appellants. This way, no fault can be found with the concurrent findings of the Courts below. He further argued that the judgment delivered by the Subordinate Judge and affirmed in appeal in the High Court merely remove the obstacle to the right of reversioners to succeed when the succession opens, Since in the instant case, succession of the estate of Smt. Harnam Kaur opened on her death in 1986 by which time her limited ownership ripened into full ownership. In support of his pleas, the Counsel relied upon the judgments in the cases reported as Giasi Ram and Ors. v. Ramjit Lal and Ors. 1969 PLR 996 ; Teg Singh and Others Vs. Charan Singh and Another, ; Smt. Manshan and Others Vs. Tej Ram and Others, ; Darshan Singh Vs. Ram Pal Singh and another, ; and Uttam Singh v. Partap Singh (deceased) and Ors. 1991 PLJ 458.

Admittedly, Harnam Kaur succeeded to the estate of Mit Singh as a limited owner or what was known earlier under Hindu law as widow''s estate. A widow inherited property subject to certain restrictions on alienation and subject to its devolving upon the next heir of the last full owner upon her death. Till she is alive the whole estate vests in her and she represent it completely i.e. to say so long as she is alive no one has any vested interest in the succession. She has even right to alienate the estate provided the purpose of alienation is performance of religious and charitable purposes or she can alienate the property for legal necessity. This power is limited and qualified one. It can only be exercised in case of need or for the benefit of the estate. In case an alienation is made without legal necessity and without the consent of the next reversioners, the same is not finding on the reversioners, but nevertheless such alienation binds her. In the instant case, Smt. Harnam Kaur gifted away the limited estate given to her on the death of her husband Mit Singh, to her daughters vide gift deed dated 14-11-2005 Bikrami which was successfully challenged by the plaintiffs holding that the same would not affect their reversionary rights. The position of a limited owner has considerably changed under the Hindu Succession Act. As per Section 14(1) of the Hindu Succession Act, any property possessed by a female Hindu whether acquired before or after the commencement of the Act shall be held by her as full owner thereof and not as a limited owner. The crux of the dispute between the parties pertain to the real meaning of the Section 14(1) of the Hindu Succession Act. According to the appellants, since the gift deed executed by her in favour of her daughters was valid qua her, she did not possess any property at the time of enforcement of Hindu Succession Act and so her becoming full owner on the basis of alleged limited ownership did not arise. On the other hand, the respondents contend that since the gift has been held to be inoperative qua the plaintiffs, the plaintiffs right to succeed as reversioners would accrue on the death of Harnam Kaur &thus she will be notionally holding the property at the enforcement of the Hindu Succession Act and construed thus, the same ripened into full ownership and so would devolve upon heirs as per provisions of the Hindu Succession Act. In the instant case, the respondents-daughters-being Class I heir succeed to the estate of Harnam Kaur deceased vis-a-vis the appellants.

Identical point came up for consideration before the Apex Court in Kuldip Singh''s case (supra). In this case, the property belonged to one Akwak Singh, who died in the year 1894 leaving behind Smt. Mehtab Kaur. Smt. Mehtab Kaur gifted the property to Harnam Singh in the year 1926 which gift was challenged by the collaterals of Akwak Singh and it was held that Smt. Mehtab Kaur being a limited owner could make a gift of the property but that gift would not be binding on them as reversioners after her death. Smt. Mehtab Kaur died on 16-10-1957 & it is thereafter on 21-1-1958 reversioners of Akwak Singh brought a suit for possession of the property which had been gifted to Harnam Singh. Harnam Singh resisted the suit on the ground that on the enforcement of the Hindu Succession Act; Smt. Mehtab Kaur had become full owner and this way the gift made by her was valid. The Apex Court considered the matter in the light of the provisions of Section 14(1) of the Hindu Succession Act. Approving earlier decisions of the Court, it was held that once a widow gifts away the property in which she has a limited interest, she is no longer in a position to claim any legal right to the property and in the absence of such a right, she cannot be held to be ''possessed'' of it. Since the gift is valid qua her, she was not left with any right at all under which she could retain its possession in her life-time. The gift executed by her was binding even though it was not binding on the reversioners. She could not, therefore, avoid the deed of gift and could not claim possession back from Harnam Singh or his succession-in-interest. Having thus completely parted with right, she could not be held to be possessed of the property when the Hindu Succession Act came into force and consequently she could not become full owner of it. Similar point came up for consideration in Munshi Singh''s case (supra). The Court after considering the relevant provisions held "it is clear that in view of the gift made in favour of Ranjit Singh, Mam Kaur, on the date the Hindu Succession Act came into force, was not possessed of any iight in the property and, therefore, she could not get any any advantage from the coming into force of the Hindu Succession Act,........" Both these judgments squarely apply to the facts of the present case.

To be fair to the Counsel for the respondents, a brief reference to the judgments cited by him would be appropriate. In Giasi Ram''s case one Jawala, a Hindu Jat governed by the customary law, sold some property to one Shadi without legal necessity, which sale was challenged by Giasi Ram seeking declaration that the sale of ancestral land of Jawala in favour of Shadi was null and void and was ineffective against his reversionary rights. The suit was decreed by the Trial Court holding that the alienation would not enure beyond the life-time of Jawala. Jawala died on October 16, 1959 leaving behind three sons, one wife and two daughters. This way the estate of Jawala devolved upon the above mentioned category of persons being Class-I heirs. The Trial Court was of the view that only sons of Jawala could claim the benefit of decree in Suit No. 675 of 1920 and since their share in the estate of Jawala was in aggregate only 1/2, decree for 1/2 where in the land alienated could be issued against the alienee. The District Judge modified the decree holding that the three sons are entitled to hold claim. The High Court maintained the order on the ground that since the suit filed by the widow and daughters had been dismissed by the Trial Court and affirmed in appeal by the District Judge, the order of dismissal qua them had become final and this way no decree could be passed in their favour for possession of any part of the estate. The matter came up before the Apex Court modified the decree of the High Court granting a decree for possession in favour of three sons and widow and two daughters holding that under Order 41 Rule 33 of the CPC empowers the Appellate Court to pass any decree and to make any order which ought to have been passed or made. Since the widow and daughters to succeeded to the estate of Jawaia, they were held entitled to the property along with three sons of Jawaia. The facts as briefly noticed do not even remotely cover the point in controversy. In the present case, the sole dispute pertains to the determination as to whether Smt. Harnam Kaur, a limited owner, having gifted away her limited estate before the enforcement of the Act can be said to possess any right in the property. Similarly, in Teg Singh''s case (supra), the Court was examining the effect of the Punjab Customs (Powers to Contest) Act (2 of 1920) and thus the same too has no bearing on the point in dispute. In Smt. Manshan''s case (supra), the Apex Court was examining the provisions of Sections 4 and 8 of the Hindu Succession Act. Since the last male holder died after coming into force of the Act, daughters of such male holder in preference to the claim of the reversioners became entitled to inherit the property. The earlier custom which prevented the daughters from inheriting the property was superseded by the provisions of the Act and this way the Court held that the collaterals are not entitled to succeed property of such male holder, Section 8 would be applicable as male Hindu died after coming into enforcement of the Hindu Succession Act. The other judgment in case reported as Darshan Singh (supra) partains to the effect of amendment in Section 7 of the Punjab Custom (Power to Contest) Act (2 of 1920) which too is wide of the present controversy. In Uttam Singh''s case (supra), the facts are as under. One Gian Singh sold the land to Moola Singh father of defendant Nos. 1 and 2 and grand-father of defendant Nos. 3 and 4 vide four sale deeds dated 29-1-1918, 12-4-1918, 28-5-1918 and 20-3-1918. These sales ware challenged by the plaintiff on the ground that the property was ancestral and the sale was not effected for legal necessity or otherwise justified as an act of good management. The suit was decreed on 7-6-1926 and the sales were declared invalid and ineffective qua the rights of the plaintiff. Vendor died on 1-3-1927 leaving behind Smt. Shanti widow who died on 30-5-1977 and the suit for possession was filed on 8-6-1977. On these facts, the Court came to the conclusion that succession to the male owner opens on the death of widow and since he died in the year 1977 right to the property would be as per provisions of the Hindu Succession Act. This case too does not help the respondents in any manner as in the present case the widow who was a limited owner parted with limited ownership vide registered gift deed in favour of defendants-daughters and thus did not possess any right on the coming into force of the Hindu Succession Act. Thus, the question of opening of succession notionally treating the property in dispute to be in possession of the widow as suggested by the Counsel for the respondents is totally misconceived.

In view of what has been stated above, I am of the view that Smt. Harnam Kaur was not possessed of any right at the time of enforcement of the Hindu Succession Act and this way the mortgage effected and the Civil Court decree suffered by her in favour of the respondents on 19-12-1983 does not in any manner affect the rights of the plaintiffs to succeed on the basis of decree dated 22-12-2006 Bikrami, Resultantly, this appeal is accepted and the judgment and decree of the Courts below are set aside and the suit of the plaintiffs is decreed as prayed for. The parties will, however, bear their own costs throughout.