Badri Lal and Others vs Jai Kishan and Others

Chet Ram Thakur, J.—This appeal has arisen out of a suit for possession of land filed by Jai Kishan against Badri Lal and others, Defendants on the ground that the last male holder of the property was Hari Ram, and, his widow, Smt. Phulman who succeeded to him as a limited owner before the enforcement of the Hindu Succession Act, had executed a Patta on 20-3-2002 BK creating occupancy rights in favour of Nauranga, the father of the Defendants Rambhu, the reversioner of Phulman filed a declaratory suit to get the Patta declared ineffective. The suit was decreed and the same was affirmed in appeal by the District Judge. Smt. Phulman died on 26-2-1962. The Plaintiff alleged himself to be the daughter''s son of Smt. Phulman and as such entitled to inherit and accordingly on the death of Smt. Phulman he filed the suit for possession.

The Defendants resisted the suit. They denied that the Plaintiff was the daughter''s son of Smt. Phulman. The trial Court found that Smt. Phulman had created rights of occupancy tenancy in favour of Nauranga, the father of the Defendants and on the same being challenged, the occupancy rights were declared ineffective and inoperative after the death of Smt. Phulman by the Civil Court and that the Plaintiff was the daughter''s son of Smt. Phulman. However, the Court held that after the enforcement of the Hindu Succession Act, Smt. Phulman had become absolute owner of the property, because she was in legal possession of the land in suit through the tenants with the result that no reversionary interest in the suit land remained and that once the widow became its full owner, in such circumstances the Defendants were held entitled to retain possession of the suit land. The result was that the suit was dismissed. On appeal to the District Judge the finding of the trial Court on the point that the Plaintiff was the daughter''s son of Smt. Phulman was affirmed, but the learned District Judge reversed the finding of the trial Court on the point that since Smt. Phulman had become the absolute owner of the property after 1956, the tenants settled on the land were entitled to retain the possession. The learned District Judge held that Smt. Phulman no doubt had become the full owner of the land in suit after the enforcement of the Hindu Succession Act, but Section 14 did not benefit Defendants 1 and 4, the alienees prior to coming into force of the Act. Smt. Phulman had created an encumbrance by executing a Patta of occupancy rights in favour of Nauranga, the father of the Defendants and at that time the widow was a limited owner. The encumbrance was challenged and the same was declared ineffective after the life-time of the widow and, therefore, he held that after the enforcement of Hindu Succession Act even if the rights of ownership of the widow had been enlarged, no benefit of the same could be given to the occupancy tenants as that encumbrance had been declared unauthorised by the Court before the Act came into force. He further held that the restriction on the power of Hindu female is not merely for the benefit of the reversioners. The restriction is inseparable from the estate held by the Hindu female and any unauthorised alienation by her does not bind whosoever is next entitled to the property and for this, reliance was placed on para 276 of the Hindu Law by Mulla. Reliance was also placed on AIR 1963 Mad 37, wherein it was held that in a suit for possession by an heir of Hindu female, who dies after the coming into force of the section, the heir was not bound by the unauthorised mortgage created by her prior to the coming into force of the said section, which subsisted only during her life time and the heir was entitled to possession of property free from encumbrance of mortgage. Hence the Plaintiff and Defendant No. 5 as the next heir to the suit property were not bound by the unauthorised creation by Smt. Phulman of occupancy rights in favour of Nauranga father of Defendants 1 to 4 and, therefore, the Plaintiffs were entitled to possession of the suit land. Consequently, accepting the appeal, he decreed the suit of the Plaintiff for possession.

We have heard the learned Counsel for the parties. It is a common ground between the parties that after the enforcement of the Hindu Succession Act on 17th June, 1956, Smt. Phulman became the full owner of the property which was in her possession and in so far as the suit property is concerned there is also no dispute that Smt. Phulman did have legal possession of the same and she became the absolute owner thereof. The dispute between the parties is with regard to the effect of declaratory decree obtained by Rambhu, the reversioner of Hari Ram; According to the learned Counsel for the Appellant, once Smt. Phulman had become the absolute owner, she treated the Defendants as her tenants and that the tenants cannot be dispossessed. Further, even prior to the creation of the occupancy tenancy Nauranga was a non-occupancy tenant under Smt. Phulman and, therefore, the Defendants reverted to their original position as non-occupancy tenants on the death of Smt. Phulman, in case the decree survived. On the contrary, the learned Counsel for the Respondents contended that the provisions of Section 14(1) of the Hindu Succession Act did not benefit the alienees or the transferees and further that there was no question of reversion to the original status. On the grant of the occupancy rights the non-occupancy rights had merged into superior rights and there was an implied surrender of the rights of non-occupancy tenancy and this creation of the occupancy rights had been declared null and void after the life-time of Smt. Phulman and on her death the Plaintiffs are entitled to possession and he has placed reliance on a number of authorities.

The learned Counsel for the Appellants contends that once it is admitted that Smt. Phulman had become absolute owner of the property on coming into force of the Hindu Succession Act then in that case, she could create a tenancy in favour of the present Defendants and reliance is placed on Dindayal and Another Vs. Rajaram, This authority, in my opinion, has got no relevancy in the present case. Undoubtedly Smt. Phulman was in legal possession of the property and it was by virtue of that that her limited rights in the property got enlarged under the provisions of Section 14(1) of the Hindu Succession Act, but she had created encumbrance on the property at a time when she had restricted rights and that rights had been challenged, and a decree had ultimately been passed in favour of the reversioners. The creation of the rights of tenancy was in the nature of permanent rights, inasmuch as an occupancy tenant could not be evicted from the land at the sweet will of the landlord. The tenant could be evicted only in accordance with the provisions of the Tenancy Act and now Section 53 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act and the grounds are: (a) that he has used the land comprised in the tenancy in a manner which renders it unfit for the purposes for which he held it; (b) where rent is payable in kind, that he has without sufficient cause failed to cultivate that land in manner or to the extent customary in the locality in which the land is situate; and (c) that a decree for arrears of rent in respect of the tenancy has been passed against him and has not been satisfied. Except on these three grounds an occupancy tenant is not liable to be ejected and the nature of the right is permanent. Therefore, if she had become absolute owner of the property that did not mean that on the enlargement of her rights of ownership, the tenants, whose tenancy has been declared void and ineffective after the life-time of the widow could get benefit of the rights which a statute had conferred upon Smt. Phulman. The rights of the tenants continued only so long as Smt. Phulman was alive and beyond that the rights could not be claimed by the tenants. The learned Counsel for the Appellants has cited Thakur Ram Janki and Others Vs. Jago Singh and Others, to show that in case a widow in possession of lands as widow''s estates leases them out permanently, she still retains some interest in immovable property, even though the lease is for a notional rent and that upon coming into force of the Act, the widow gets absolute right to the reversion and the reversioner would have no claim to it and cannot challenge the lease on the ground of want of legal necessity, But here in the instant case the lease has already been declared null and void and ineffective on the rights of the reversioners vide Ex.P.A., dated 30-5-2004 BK. This Court, therefore, cannot reopen that question that the reversioner cannot challenge the same. In the case, cited above, there was no declaratory decree passed, so this authority will have no application. The second authority relied upon is Jai Ram Devi Ditta Vs. Tota Ram Hardev Ram and Others, . This case is also distinguishable, inasmuch as in that case the suit challenging the mortgage executed by the widow as a limited owner was pending when the Hindu Succession Act, 1956 came into force and it was in view of that that it was held that the widow being possessed of the property at the time of the coming into force of the Hindu Succession Act, she became its full owner by virtue of the provision in Section 14 of that Act. Hence no reversionary interest remains in the property once the widow becomes its full owner. Hence a suit brought in order to protect his reversionary right was not maintainable in such a case. In the instant case the decree has been passed much before the coming into force of the Hindu Succession Act and the tenancy rights created by the widow who held the property as a limited owner was declared ineffective on the rights of the reversioners after the death of the widow. The authority Mangal Singh and Ors. v. Smt. Rattno (dead) by her legal Representatives and Ors. ( AIR 1967 S.C. 1786)relied upon by the learned Counsel has got no bearing, as it also relates to the interpretation of the expression "possessed by" a female Hindu as used in Section 14(1) of the Hindu Succession Act. With regard to this, there is no dispute between the parties and it is the common ground between the parties that she had become the absolute owner of the property because of her legal possession of the property on 17th June, 1956, the day, the Hindu Succession Act came into force.

On the other hand the learned Counsel for the Respondents has relied on Ishar and Ors. v. Sunder (A.I.R. 1918 Lah 282), wherein it was held that the creation of occupancy rights in land amounts to a transfer of valuable rights and can be challenged by the heirs of the proprietor in accordance with the well recognised principles of customary law. The present is also a case in which a decree has been passed and which decree, in our opinion, cannot be questioned. We have only to see whether the decree survives or not, to which our answer is that it does. After the enlargement of the estate of the widow, the limited rights that she transferred could not be enlarged. On the death of the widow the Plaintiffs, if they are held to be the heirs, must get the possession of the land, as the Defendants after the death of Smt. Phulman are trespassers. They had only a limited interest on the land till the life-time of the widow under the decree notwithstanding the enlargement of the estate of the widow because there was no fresh tenancy created by her after she became absolute owner. Similarly in Bhagwana and Ors. v. Balik Ram and Ors. (A.I.R. 1919 Lah 248), it has been held that the creation of an occupancy tenancy amounts to a permanent alienation of the land, inasmuch as the rights created derogate from the full title of the landlord. Further, in Kanthimathinatha Pillai v. Vayyapuri Mudaliar (A.I.R. 1963 Mad 37 ) it was held that the enlargement of the rights of Hindu woman having limited interest in the properties into an absolute interest u/s 14 of the Hindu Succession Act, 1956, will not enlarge the rights of alienees, who took the property before the Act came into force with open eyes from such limited owner without justifying necessity or alienation. This principle would equally apply to usufructuary mortgages. This is a case which is almost identical to the case in hand. Harak Singh Vs. Kailash Singh and Another, would go to show that the object of the Hindu Succession Act was to improve the legal status of Hindu women, enlarging their limited interest in property inherited or held by them to an absolute interest, provided that they were in possession of the property when the Act came into force, and, therefore, in a position to take advantage of its beneficent provisions. The Act was certainly not intended to benefit alienees or to unduly enrich the alienees who with their eyes open purchased the property from the limited owners without justifying necessity before the Act came into force and at a time when the vendors had only limited interest of Hindu women. The effect of Section 14 is not to enlarge the alienees interest into an absolute indefeasible interest. Thus from this authority it would be quite apparent that in case the widow had become absolute owner of the property it would not necessarily mean that the right of alienee also got enlarged. He held only the limited rights that the widow could pass at that time and the same had been held by Court to continue to be enjoyed by the tenant only till the lifetime of the widow. On the enlargement of the widow''s estate the transferee or the tenant cannot claim the benefit of the same that he had become permanent tenure-holder as the object of Section 14 is to benefit the limited owner and not the alienees.

Hence it is obvious that the contention advanced by the learned Counsel for the Appellants that after coming into force of the Hindu Succession Act, the widow had become the absolute owner and as such the tenant continued to be the tenant under the owner and that the decree did not survive or that the Plaintiff could not take advantage of the decree is of no consequence. Notwithstanding the fact that the widow has become absolute owner of the property, the Defendants cannot take benefit of that situation, because they got only restricted rights at a time when the widow herself was a limited owner and she could not transfer the property without the legal necessity and the reversioner had obtained a decree prior to the enforcement of the Act, whereunder creation of the tenancy was held to be invalid as being without necessity and not binding on the reversioner''s rights after the death of the widow.

The further contention advanced by the Appellant''s learned Counsel is that Smt. Phulman had created a new lease after her limited estate was enlarged in 1956. But there is no evidence on the record about the creation of the fresh tenancy. Tenancy, it is an admitted fact is not the result of any unilateral act but it is the result of a bilateral act. It comes into being either by agreement or by operation of law. The contention of the learned Counsel for the Appellant is that on the termination of the tenancy rights, the Defendant-Appellants reverted to their original status as a non-occupancy tenants as before the creation of the occupancy rights the father of the Defendant-Appellants was the non-occupancy tenant under the widow. But the learned Counsel for the Respondent, in our opinion, has rightly argued that non-occupancy rights got merged into the superior rights of occupancy tenancy and he has placed reliance on some authorities in that behalf.

In Ganjhu Upendra Singh Vs. Ganjhu Meghnath Singh, it was held that where a lessee accepts from his lessor a new lease of the property leased to take effect during the continuance of the previous lease, this is an implied surrender of the former lease which is thus determined. Similar is the ratio in Santi Lal and Others Vs. Jogendra Nath Gorain, . In that case it was held that when during the continuance of a demise, a lessee accepts a fresh lease, this operates in law as a surrender of the original lease. The same principle has been reiterated in Mahammad Ibrahim Vs. Bani Madhab Mullick and Others, that if a lessee accepts a new contract of tenancy it operates as a surrender of the old tenancy for a new lease cannot be granted unless old is surrendered. Such a surrender takes place by operation of law and the intention of the parties is immaterial. To the similar effect is Godasankara Valia Raja Vs. Tharappan Vareed, . From the principle laid down in the aforesaid authorities it would be quite evident that the Defendants cannot plead that they had reverted to their original status of non-occupancy tenants on the termination of their occupancy rights after the death of the widow. There was a surrender of the rights of non-occupancy tenancy as soon as the occupancy tenancy was created or, say, there was a merger of the inferior rights in the superior rights, and, after the termination of these superior rights the Defendants cannot now claim the rights of non-occupancy tenants.

It had been contended by the learned Counsel for the Appellants that the provisions of Transfer of Property Act do not apply to agricultural leases so as to say that there was merger or there was surrender of the previous lease on the creation of the permanent lease of occupancy rights. It is no doubt true that the Transfer of Property Act does not apply as such, but the principles underlying the same do apply as would be evident from AIR 1947 48 (Nagpur) which says that Section 117, T.P. Act, exempts agricultural leases from the operation of Chapter v. of the Act, but though the provisions of the Act may not apply proprio vigore, the principles underlying them have been applied to such leases as rules of equity, justice and good conscience.

It is, therefore, evident that the tenancy created was of a permanent nature, no doubt the legal possession was that of the widow. She could not evict Nauranga or the present Defendants without complying with the provisions of Section 53 and 54 of the H.P. Abolition of Big Landed Estates and Land Reforms Act. Hence it was a permanent lease for all intents and purposes and which has been declared illegal and, therefore, this is a suit by the Plaintiffs against the persons who were directed to surrender possession on the death of the widow. There is no evidence on the record if the Plaintiff or anybody else on his behalf had accepted any rent so as to induct the Defendants as fresh tenants under the Plaintiff. It may also be stated that after the determination of the tenancy a tenant who holds over cannot be treated as tenant, as has been decided in Bhawanji Lakshmshi and Ors. v. Himatlal Jamnadas Dani and Ors. (1972 SCC 388), wherein it was held:

The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English law and the latter a tenant holding over or a tenant-at-will. In view of the concluding words of Section 116 of the T.P. Act, a lessee holding over is in a better position than a tenant-at-will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise.

It is apparent that there was no agreement of lease nor is there any plea taken up by the Defendants in their written statement. Hence from the aforesaid discussion, it would follow that the decree survives irrespective of the fact that Phulman had become full owner of the property after the enforcement of the Act of 1956, because she could not evict the tenant save in accordance with the provisions of Sections 53 and 54 of the H.P. Abolition of Big Landed Estates and Land Reforms Act and that way it was a permanent lease created by her and the tenant inducted by her without any legal necessity, as we have already held, cannot get the benefit of Section 14(1) of the Hindu Succession Act and on the death of the widow they are trespassers and they have to surrender the possession in favour of the heir/heirs of the last male holder whosoever he or they are at the time of the death of the widow.

The next point that falls for determination is whether the Plaintiff is the daughter''s son of Phulman. The learned Counsel for the Appellant has assailed the finding of the Courts below. It is a question of fact and both the Courts below have recorded concurrent findings and in such cases the Court would be reluctant to interfere with the finding of fact in a second appeal, but the contention of the learned Counsel for the Appellant is that this concurrent finding will not stand in his way in view of the provisions as contained in para 32 of the H.P. (Courts) Order. According to him, the findings were wrong and the Courts below had erred in not giving its finding that even if Smt. Thakri was daughter of Smt. Phulman, whether the Plaintiff-Respondents are the legitimate issues of Smt. Thakri. There was nothing in Ex. D.A., except for marriage of daughter''s daughter of Smt. Phulman or that the Plaintiff-Respondents are the issues of Smt. Thakri. He has drawn our attention to Sections 50 and 60 of the Indian Evidence Act to show that there was no proof as required under those sections and has also cited some authorities. But, in our opinion, it will not be necessary to refer to those authorities. In the first place, there are concurrent findings of the Courts below on a question of fact and then from oral as well as documentary evidence, we have no hesitation in affirming the conclusion that has been arrived at by the Court below on the point that the Plaintiff is the son of Smt. Thakri, who was no other but the daughter of Smt. Phulman. The statement of the Plaintiff as his own witness has been attacked by the learned Counsel for the Appellant as hearsay as also as an admission in his own favour. But this does appear to be correct. In respect of the relationship he is the best person who can speak from his own knowledge. He is directly related through Smt. Thakri to Smt. Phulman. Then there is overwhelming documentary evidence to warrant the conclusion arrived at by the two Courts below. He has also been shown as dohta of Smt. Phulman in the jamabandi and the Khataunis. The learned Counsel for the Appellant has attacked these entries on a number of grounds. He has referred to the various provisions of the Himachal Pradesh Land Revenue Act as also the corresponding provisions of the Punjab Land Revenue Act along with the instructions for the compilation of the record of rights and what are the necessary particulars to be made in the various columns in the record of rights. According to him, the Khataunis which have been prepared under the Consolidation of Land Holdings Act do not carry the presumption of correctness attaching to the entries of the jamabandi. He urges that the instructions emanating from the Financial Commissioner Punjab and which have mutatis mutandis been followed in Himachal Pradesh, lay down that the father''s name has got to be incorporated, but here contrary to the instructions the father''s name is not incorporated, rather he is shown as the daughter''s son of Smt. Phulman.

We have considered these various aspects of the matter. There is no need to make a reference to the various provisions of the Punjab Land Revenue Act but suffice it to say that these instructions are only directory and not mandatory. Here, in the instant case, the necessity for the entry as, ''Jai Kishan daughter''s son (Dohta) of Smt. Phulman'' arose because he succeeded to Smt. Phulman as the daughter''s son, and not that he succeeded to the property through his father so as to necessarily record him as the son of so and so. The entry is made in respect of the rights that a person inherits through a particular individual. Since the rights had been acquired by inheritance by Jai Kishan through his mother''s mother, therefore, he had necessarily to be shown as the dohta of Smt. Phulman. Therefore, in our view this long argument that the instructions enjoin this and that will not be of any avail. The person who acquires the right and through whom he acquires has to be indicated in the record. Since Jai Kishan inherited or acquired the property through his mother''s mother it was necessary to make the entry in that way so as to show the relationship of the person acquiring the property with the person from whom he so acquired it. Therefore, this evidence cannot be brushed aside. The evidence is quite relevant to the point in issue. This evidence establishes his title and his relationship to Smt. Phulman.

Secondly, the contention that Khataunis prepared under the Consolidation of Land Holdings Act also do not carry any presumption of correctness is also not tenable. Under Sub-section (2) of Section 18 such a record of rights shall be deemed to have been prepared u/s 32 of the Punjab Land Revenue Act, as applied to Himachal Pradesh. Section 32 of the Punjab Land Revenue Act, 1887, provides for making or special revision of record of rights and Khataunis as the statement of proprietors and tenant''s holdings with a detail of fields and note of the rent paid by each tenant. So, in view of this, this Khatauni is nothing but a record of right to which presumption of correctness u/s 44 of the Punjab Land Revenue Act and Section 45 of the H.P. Land Revenue Act must attach and they must be presumed to be true unless the contrary is proved. Khataunis show the Plaintiff as the owner and his ownership is stated through Smt. Phulman, who is shown as the grand-mother and the Plaintiff is shown as the dohta. Therefore, that entry clinches the matter. The Defendant has not been able to prove the contrary.

Further, the document Exhibit D.1, which is a deed creating the tenancy rights, makes a clear mention that the lease had to be created by her to raise a loan for defraying the expenses of her daughter''s marriage. It is, therefore, quite manifest that she had a daughter and the Courts below are quite correct in holding that the statement of Badri Lal stood belied by a recital in the document Exhibit D.A. about the fact that Smt. Phulman had a daughter and secondly that the creation of the occupancy tenancy was necessitated because of loan for the marriage of her daughter and it is also quite clear that this recital was made at a time when there was no dispute. The mutation Exhibit PN which was attested in favour of the Plaintiff and Defendant No. 5 also lends support to the fact that the Plaintiff and Defendant No. 5 are the issues of Smt. Thakri, daughter of Smt. Phulman.

In view of the above findings, the irresistible conclusion that follows is that the findings of the Court below are correct. We, therefore, affirm the same and dismiss the appeal with costs.