Banti and Others vs Darshan Singh and Others

Viney Mittal, J.—Defendants No. 1, Banti and 25, Ajit Kaur, have approached this Court through the present regular second appeal.

Plaintiffs, Darshan Singh son of Bhana and Amrit and Udni alias Iqbal Kaur daughters of Bhana filed a suit for possession of the land in dispute. It was claimed by the plaintiffs that Bhana son of Moti was the original owner of the land in dispute. The plaintiff alongwith one Gurdev Kaur were the children of aforesaid Bhana from his first wife. After the death of his first wife, Bhana remarried Smt. Banti defendant no. l. However, subsequently, Bhana and Smt. Banti had strained relations and started living separately. There was even litigation between them. Ajit Kaur, defendant No. 25 is the daughter of Smt. Banti from the aforesaid wedlock. Some land was given by Bhana to Smt. Banti to settle the dispute between them. Besides the aforesaid land, the suit land was also given to Smt. Banti by Bhana by way of gift for her maintenance in the year 1950. The mutation was also entered in her favour on January 25, 1950. Plaintiff, Darshan Singh challenged the aforesaid gift by filing a civil suit for declaration under the customary law. It was claimed by him that the aforesaid gift by Bhana in favour of Banti qua the ancestral property would not affect the reversionary rights of aforesaid Darshan Singh. The aforesaid civil suit filed by Darshan Singh was decreed by the learned trial Court vide judgment dated June 30, 1954 (Ex.P22). It was held that the aforesaid gift by Bhana in favour of Banti would not affect the reversionary rights of Darshan Singh and would operate only during he left time of Bhana. The appeal filed by Banti against the aforesaid judgment was dismissed by the learned District Judge vide judgment dated November 29, 1954 (Ex.Dl). Even the regular second appeal filed against the aforesaid judgments by Smt. Banti filed before the High Court was dismissed vide judgment dated November 3, 1959 (Ex.Cl). The plaintiffs claimed that after the consolidation operations in the village, the land in suit has been allotted in lieu of the land originally gifted by Bhana in favour of Banti covered by the aforesaid earlier litigation. Although Smt. Banti was to continue to have the rights in the property only during the left time of Bhana and was not an absolute owner but she made several alienations in favour of the various defendants in the year 1970 and the vendees purchased the lands through the aforesaid sale deeds with full Knowledge of the earlier decree.

The plaintiff further claimed that Bhana died on March 27, 1973 and prior to his death he had executed a will dated January 5, 1973, registered on January 6, 1973 whereby he bequeathed his estate in favour of the plaintiffs by excluding defendant No. l, Smt. Banti and defendant No. 25 Smt. Ajit Kaur and the other daughter Gurdev Kaur who was already well settled. On the basis of the aforesaid will and on the basis of the earlier declaratory decree the plaintiffs filed the present suit for possession.

The suit was contested by the defendants. It was claimed by them that Banti was absolute owner of the suit property. They even denied the earlier litigation between the parties whereby revisionary rights of Darshan Singh had been upheld. The will set up by the plaintiffs was also contested. On the other hand, the defendants claimed that Bhana had executed a will dated February 21, 1973 in favour of his children.

The learned trial court held that because of the earlier litigation which had been decided in favour of Darshan Singh, the gift in favour of Banti stood set aside. It was also held that the suit land has been allotted in lieu of the original land during the consolidation proceedings. Both the wills set up by the plaintiffs and the defendants i.e. will dated February 21, 1973 as well as will dated January 5, 1973 were held to be executed . by Bhana. Additionally the learned trial Court recorded a finding on issue No. l-A that Banti had become absolute owner of the suit property after the commencement of the Hindu Succession Act, 1956 and, therefore, the plaintiff could not take any benefit of the earlier decree Ex.P22. On the basis of the aforesaid findings, the learned trial Court dismissed the suit filed by the plaintiffs.

The plaintiffs took up the matter in appeal. The learned first appellate court reappraised the evidence and re-examined the entire controversy. On such re-examination the learned first appellate Court reversed the findings recorded by the learned trial Court with regard to Banti having become absolute owner of the suit property. It has been held by the learned first appellate court that since Banti had acquired ownership of the suit property on the basis of an oral gift executed by Bhana in the year 1950 and the said gift had been set aside through judgment Ex.P22 which judgment had been upheld in appeal and regular second appeal, therefore, Banti could not be held to be the absolute owner of the suit property even after the commencement of the Hindu Succession Act, inasmuch as her title to the suit property was to operate only during the life time of Bhana who died on March 27, 1973. On the basis of the aforesaid findings, the learned first appellate Court accepted the appeal filed by the plaintiffs and set aside the judgment and decree of the learned trial Court and consequently the suit filed by the plaintiffs was decreed.

Defendants No. 1 and 25 have now approached this court through the present regular second appeal challenging the aforesaid judgment of the learned first appellate Court.

I have heard Shri G.S.Grewal, the learned senior counsel appearing for the appellants and Ms. Alka Sarin, the learned counsel appearing for the respondents and with their assistance have also gone through the record of the case.

Shri G.S.Grewal, the learned senior counsel appearing for the appellants has assailed the findings recorded by the learned first appellant court to the effect that Banti had not acquired the absolute ownership, even after the commencement of the Hindu Succession Act. Additionally it has been argued by the learned senior counsel that the trial Court had recorded findings with regard to the will dated January 5, 1973 and Will dated February 21, 1973 and because of the operation of the later will, the plaintiffs could not claim any exclusive rights to the suit property to the exclusion of defendant No. 25.

On the other hand, Ms. Alka Sarin, the learned counsel appearing for the respondents has vehemently argued that Smt. Banti was not having any original ownership over the suit land and the aforesaid suit land was in fact gifted to her by Bhanna. The aforesaid gift had been challenged by the plaintiff, Darshan Singh, by filing a usual declaratory suit under the customary law to the effect that the said gift would not effect his reversionary rights in any manner. The said suit was decreed by the learned trial Court and it was held that Smt Banti would enjoy the property only during the left time of Bhana and the said gift would not affect the reversionary rights of Darshan Singh in any manner. The said decree passed by the learned trial court was upheld in the first appeal as well in regular second appeal. Thus, it has been argued by the learned counsel that Smt. Banti could not have acquired any better rights, whatsoever, on the commencement of Hindu Succession Act and her estate could not be taken to have been enlarged in any manner. Additionally the learned counsel for the respondents has argued that the findings recorded by the learned trial Court that the will dated February 21, 1973 was proved was in fact based upon no material whereas the will dated January ,5, 1973 in favour of the plaintiffs has been upheld in earlier litigation between the parties, therefore, the said will would operate for the benefit of the plaintiffs in the present litigation as well.

After hearing the learned counsel for the parties, I find that the following substantial questions of law arise for consideration in the present appeal:-

(a) Whether for declaratory decree qua reversionary rights of a reversioner which had attained finality could be taken to have been nullified on the commencement of the Hindu Succession Act, 1956?

(b) Whether a widow who was a donee and a gift in whose favour has been declared to be operative only during the life time of her husband (donor) could be deemed to have enlarged/her estate on the commencement of the Hindu Succession Act?

(c) Whether the plaintiffs would be entitled to succeed to the estate of Bhana in view of the Will dated January 5, 1973, the property having been restored to the estate of Bhana on the basis of the earlier declaratory decree?

I have duly considered the aforesaid rival contentions of the learned counsel for the parties. In my considered view, there is no merit in the present appeal and the same is liable to be dismissed.

It is not in dispute that the gift executed by Bhana in favour of Smt. Banti in the year 1950 was challenged by Darshan Singh by filling a civil suit on May 27, 1953. It was claimed by Darshan Singh that under the customary law, Bhana had no right to gift away the suit property which was ancestral property and the said gift would not effect the reversionary rights of Darshan Singh. The said suit filled by plaintiff, Darshan Singh, was decreed by the learned trial Court vide judgment dated June 30, 1954 (Ex. P22). The appeal filed by Banti was dismissed by the learned District Judge vide judgment dated November 25, 1954 (Ex.Dl). Even the second appeal filed by Smt. Banti failed on November 30, 1959 (Ex.Cl). In view of the aforesaid fact, the gift in favour of Banti was set aside by the civil court in the earlier litigation between the parties. The said decree has attained finality between the parties. After the passing of the aforesaid decree, Smt. Banti was to continue to enjoy the possession of the suit property only during the life time of Bhana, who admittedly died on March 27, 1973. It is, thus, clear that after the death of Bhana, the plaintiffs had a right to seek possession of the suit property from Smt. Banti and her transferees in terms of the earlier judgments and decree. The commencement of the Hindu Succession Act would not effect the rights of the parties in any manner.

Some observations made by the Apex Court in Giasi Ram and Others Vs. Ramjilal and Others, may be noticed with advantage:

"5. A preliminary objection raised by counsel for the respondents that the suit in its entire should have been dismissed, because by the enactment of the Hindu Succession Act Jwala was to be deemed a full owner and notwithstanding the decree passed in Suit No. 75 of 1920 his sons had after that Act no subsisting reversionary interest in the property must stand rejected. The High Court has granted a decree in favour of three sons for a half share in the property and the decree is not challenged in an appeal by the respondents. The respondents cannot now be permitted to challenge that part of the decree. In any event there is nothing in the Hindu Succession Act which retrospectively enlarges the power of a holder of ancestral land or nullifies a decree passed before Act."

It is, thus, clear, as held by the Apex Court, that there is nothing in the Hindu Succession Act which retrospectively, enlarges the power of the holder of ancestral land or nullifies a decree passed before the Act. In view of the aforesaid observations made by the Hon''ble Supreme Court of India, the first arguments raised by the learned counsel for the appellants is absolutely without any merit and the same is accordingly rejected.

Certain more observations made by the Apex Court Giasi Ram''s case (supra) may also be noticed as follows:-

"The second ground on which the learned Judge has founded his judgment also does not appeal to us. The three sons, the two daughters and the widow of Jwala had field the suit claiming possession of the entire property from the alienee. The suit was decreed by the Trial Court in favour of the sons only to the extent of a half share in the property alienated. The Court held that the widow and the daughters were not entitled to a share because only those persons can bring a suit for possession on the death of Jwala who had the right to challenge the alienation made by Jawalaa." In appeal the District Court granted a decree for possession of the entire property on the view that the alienee had no subsisting interest after the death of Jwala. But the District Court granted a decree for possession of the entire property alienated only in favour of the three sons, because in the view of the Court the daughters and the widow of Jwala were not entitled to any share in the property. According to the High Court if the widow and the daughters were entitled to the share in the property, they had disentitled themselves to that right, because they had not preferred appeal or filed cross objections to the decree appealed from. The sons, daughter and widow of Jwala filed a suit for a decree for possession of the entire property and their primary claim was that the alienee had no subsisting interest. The District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated. If the alienees are unable to convince the Court that they had any subsisting interest in the property in dispute after the death of Jwala the Court will be competent to adjust the rights between the sons, the daughters and the widow of Jwala in that property."

Again in the case of Teg Singh and Others Vs. Charan Singh and Another, , the Hon''ble Supreme Court of India while relying upon the judgment in Giasi Ram''s case (supra) held as follows:

"The decision of this Court in Giasi Ram and Others Vs. Ramjilal and Others, may, with advantage, be referred to on this point. Under the customary law of the Punjab, the wife and daughters of a holder of ancestral property could not sue to obtain a declaration that the alienation of ancestral property will not bind the reversioners after the death of the alienor. But the reversioner who was entitled to challenge that alienation could obtain a declaratory decree that the alienation will not bind the reversioners after the alienor''s death. It was held by this Court that such a declaratory decree had the effect of restoring the property alienated to the estate of the alienor and therefore, all persons, including the Wife and the daughters of the deceased, were entitled to the benefit of that restoration. Since the property alienated had reverted to the estate of the alienor at the point of his death, the widow and daughters, who also became heirs along with the sons under the Hindu Succession Act, 1956 were held entitled to obtain possession of the ancestral property-. Mr. Juneja attempted to get over the effect of this decision by invoking the provisions of Section 8 of the Punjab Limitation (Custom) Act, 1 of 1920, which provides that when a person obtains a decree declaring that an alienation of ancestral immovable property is not binding on him according to custom, the decree shall ensure for the benefit of all persons entitled to impeach the alienation. Counsel argues that since the respondent was not entitled to impeach the gift in favour of Bhagwati Devi, having been adopted after the date of the gift, the decree obtained by appellants 1 to 12 enure for his benefit. The short answer to this contention is that the decree would enure for the benefit of all persons who are entitled to a share in the property of the deceased as it existed at the moment of his death. Since Mula''s property stood freed from the encumbrance of the gift at the moment of his death, respondent as the adopted son would be entitled to the possession of the gifted property."

Thus, the settled position of law which emerges from the aforesaid law laid down by the Apex Court is that the effect of a declaratory decree is to restore the property alienated to the estate of the alienor and until and unless the alienees are able to convince the Court that they have any subsisting interest in the property, the heirs of the alienees would be entitled to the benefits of the property as per the law of succession. Thus, the effect of the operation of the aforesaid declaratory decree would be to restore the land in dispute to the aforesaid estate of Bhana deceased and the succession would be deemed to have opened on March 27, 1973 when Bhana died. On his death, the estate left behind by him including the land in dispute would devolve upon his heirs as per their entitlement.

The plaintiffs have relied upon will dated January 5, 1973 which was registered on January 6, 1973. On the other hand the defendant No. 25 has relied a Will dated February 21, 1973.

Although, the learned trial Court has upheld the validity of both the aforesaid Wills but in my considered view the observations made by the learned trial Court with regard to the Will dated February 21, 1973 are not supported by any evidence. The learned trial Court without discussing any evidence, whatsoever, merely held that since there was nothing on record to rebut the aforesaid Will, therefore, the same would be taken to have been proved. The said observations by the learned trial Court cannot be legally sustained inasmuch as a propounder of Will is legally required not only to prove the due execution of the Will but also to dispel all suspicious circumstances which may have existed in the due execution of the aforesaid Will. The learned trial Court did not care to go into any one of the aforesaid questions but merely cursorily upheld the due execution. The said observations made by the learned Trial Court cannot be legally sustained and, therefore, the Will dated February 21, 1973, cannot be taken to be duly proved.

However, with regard to the Will dated January 5, 1973, relied upon by the plaintiffs, this Court in another litigation between the parties, i.e. R.S.A.No. 933 of 1984 decided today itself i.e. on July 28, 2004 has upheld the validity of the Will dated January 5, 1973. The aforesaid finding has been recorded by the Court on the basis of an earlier litigation between the parties which was duly considered by the learned Additional District Judge in the aforesaid litigation. In view of the aforesaid findings recorded in RSA No. 933 of 1984, I have no hesitation in upholding the due execution of the Will dated January 5, 1973 in favour of the plaintiffs. Accordingly, as per the said Will the plaintiffs are held entitled to succeed to the entire property of Bhana deceased including the land in dispute to the exclusion of defendants No. 1 and 25.

No other point has been urged.

Thus, I find that the substantial questions of law (a) and (b) have to be answered in the negative and against the defendant/appellant whereas question (c) has to be answered in the affirmative and in favour of the plaintiff-respondents.

In view of the aforesaid discussion, I find that the present appeal is devoid of any merit and is accordingly dismissed. There shall be no order as to costs.