Brij Lal and others vs Gurdas Ram and others

R.S. Sarkaria, J.—Regular Second Appeal 371 of 1967 by the defendants is directed against the judgment and decree, dated, 5th March, 1963, of the learned District Judge, Hoshiarpur, whereby the decision of the trial Court was reversed and the plaintiff''s suit was decreed.

It arises out of the following facts: Gurdas Ram son of Gonda Ram of village Naizain, P.O. Haryana, District Hoshiarpur, instituted the suit for possession of 37 Kanals and 4 Marias of land, situated in the area of village Mitthewal. On the footing of a will alleged to have been executed by Smt. Bholi, widow of Dr. Dilbagh Rai. Smt. Bholi''s husband died some time in 1925. On his death, she came into possession of his property, including the land in dispute, as his widow, litigation started between her husband''s brother and collaterals on one side, and herself on the other, over the succession. On 1st August, 1928, a compromise agreement was executed by Smt. Bholi and the collaterals of Dr. Dilbagh Rai.

Smt. Bholi, about two decades before her death, took up residence in her parent''s village Naizian, where the plaintiff, Gurdas Ram, son of her brother, Ganda Ram, resided, she died on 3rd March, 1959 in that village. Thereafter, disputes again arose between Gurdas Ram legatee and the collaterals of Smt. Bholi''s husband, -the defendants,- about the possession of the land for which Gurdas Ram filed the present suit. The defendants resisted the plaintiff''s claim on two grounds :

(1) That they will propounded by the plaintiff was a forged document and had never been executed by Smt. Bholi.

(2) That Smt. Bholi''s rights in the suit property were acquired by her under the compromise agreement, dated 28th December, 1925 executed by her in favour of Kanshi Ram and Ganda Ram, which was duly registered in execution of a decree for specific performance passed on 10th October 1927, by the Court in a suit brought by Kanshi Ram and Ganda Ram and that consequently, the case fell within the ambit of sub-section (2) and not sub-section (1) of section 14 of the Hindu Succession Act, 1956 (hereinafter referred to as ''the Act'').

On the pleadings of the parties, the trial court raised these issues :

What is the effect of the previous litigation on the right of Mst. Bholi ?

Whether Mst. Bholi executed any valid will in a sound and disposing mind and she was competent to do so ?

The Subordinate Judge, Hoshiarpur, under Issue No. 1 held, that the widow had succeeded to the suit property on the death of her husband and she did not acquire her lights in the property by virtue of the compromise agreement Exhibit D. 2, executed on 9th August 1928; and, consequently, her limited estate had been enlarged into full ownership by the operation of sub-section (1) of section 14 of the Act. He, therefore, decided issue No. 1 in favour of the plaintiff. The trial Judge, however, decided issue No. 2. against the plaintiff, and, in the result, dismissed his suit. The plaintiff went in appeal to the District Judge, Hoshiarpur, who affirmed the findings of the trial Court on issue No. 1, and, reversing the finding on issue No. 2, held that the execution of the will had been duly proved. Therefore, he allowed the appeal and decreed the plaintiff''s suit. This is how the matter has come in second appeal before this Court.

As regards the finding of the Courts below on issue No. 1, Mr. Aggarwal contends that Mst. Bholi had acquired her rights in the suit property by means of the agreement, Exhibit D. 2, executed on 9th August 1928, and, as such, the case was within the purview of sub-section (2) of section 14 of the Act. In the alternative, he contends that this is a case where the agreement does not fall either under sub-section (1) or under sub-section (2) of section 14 of the Act, because the widow of her own volition placed restriction on her power of alienation. In support of this contention, reference has been made to Mali Bewa Vs. Dadhi Das, , Blanda Duni Chana (1962) 64 P.L.R. 668, Mst. Kirpo Bakhtawar Singh (1964) 66 P.L.R. 846. Karumuri Seetharamayya Vs. Patcha Peraiah and Others, Puran Singh Major Resham Singh 1965 C.L.J. 848, and Smt. Rama Vati Smt. Bal Kaur E.F.A. 358 of 1963, decided by Mr. Justice D.K. Mahajan on 18th September 1967.

Mr. Sarin, however, contends on behalf of the respondents, that the rights of the widow in the suit property were not the creature of the agreement, executed on 9th August 1928. This agreement only placed a fetter on her power of alienation after recognising her pre-existing rights in the property which she got by succession as a widow on her husband''s death, which had taken place about three years earlier. In the circumstances, says Ms. Sarin, sub section (1) and not sub-section (2) of section 14 of the Act applied, and her estate had been enlarged to a fully estate. Reliance has been placed on Ude Chand Mst Rajo (1966) 68 P.L.R. 388 Smt. Sharbati Devi Hira Lal (1964) 66 P.L.R. 78 and Hira Lal Smt. Sharbati Devi (1966) 68 P.L.R. 51.

It appears to me that the contentions of Shri Aggarwal cannot prevail. It is common ground that Dr. Dilbagh Rai, husband of Smt. Bholi, had died some time in 1925, and thereupon Smt. Bholi as his widow came into possession of all the property of her deceased husband including the suit property. Some civil and criminal litigation started between the widow and the collaterals'' of the deceased about that property. The collateral''s case was that the widow had executed the agreement, dated 28th December 1925, Exhibit D. 2, in favour of the collaterals, Ganda Ram and Kanshi Ram. It seems that latter on Smt. Bholi in terms of the settlement, refused to get that agreement registered. Ganda Ram and Kanshi Ram thereupon brought a suit on 10th June 1926 against the widow for specific performance and registration or the agreement. Smt. Bholi resisted the suit inter alia on the ground that she never executed this document which had been fabricated by the then plaintiffs in collusion with the scribe; and that it was without consideration and opposed to public policy. The Subordinate Judge, however, decided all these points against Smt. Bholi and decreed the suit. In pursuance of that decree, the document was registered on 9th August 1928. The Reader of the Court executed the agreement and appeared before the Sub-Registrar on behalf of Smt. Bholi. By this agreement, all civil and criminal disputes between the parties were settled on the condition that all the property left by the deceased (Dr. Dilbagh Rai) would remain in the possession and enjoyment of Smt. Bholi in her capacity as the widow of the deceased so long as she did not remarry. A fetter was also placed on her power of alienation and she was also prohibited from passing the property on to anyone beyond her life-time. An exchange of some house property was also made by the same agreement. At the close of the document, The particulars of the movable property left by Dr. Dilbagh Rai deceased were also set out. The suit property is also included in those properties.

As noticed by the Courts below, the parties are Sainis by caste they were admittedly governed in matters of succession, etc, by Punjab agricultural custom, according to which the widow, Smt. Bholi, would succeed to the estate of her deceased husband on a life-tenure only and her powers of alienation would also be very restricted. All that the agreement did was to curtail her power of alienating the property which she had already acquired on the death of her husband. This was not a case where she had no semblance of a pre-existing right and was for the first time given some rights in the property by virtue of the agreement, Exhibit D. 2, The language of Exhibit D. 2, also shows that her status as a widow succeeding to the property of her husband on a life-tenure, was substantially recognised. The material words in the agreement are: "ALBATTA UNKA PHAL KHANEYA FROKHAT KARNKA TAA HAYAT KHUD BATAUR BEWA DOCTOR DILBAGH RAI USKO POORA AKHTIAR HOGA". These words rendered into English, read as follows: "However, she will be fully entitled to the enjoyment of the usufruct or the sale of usufruct of these properties for her life-time as widow of Dr. Dilbagh Rai". The crucial words are "as widow of Dr. Dilbagh Rai". Thus by no stretch of reasoning could it be said that the widow acquired her rights in the property under this agreement. As aptly observed by the learned District Judge, it would be more correct to say that she had suffered diminution of her rights qua this property rather to contend that she had "acquired" the property per agreement, Exhibit D. 2.

The rulings cited by Mr. Aggarwal are quite distinguishable from the present case (Mali Bewa vs. Dadhi Dass), there was a compromise decree between the adopted son and his widow mothers. Son got half share in the property and the widows got the remaining half share for their maintenance. This decree was passed before the commencement of the Act. In that case, the widows got somethings which under the ordinary Hindu law, they were not entitled to in the presence of the son. On these facts and the construction of the document, therefore, the learned Single Judge of that Court, held that only a restricted right was given to the widows and the case fell under sub-section (2) and not sub-section (1) of section 14 of the Act.

In Blanda and others vs. Duni Chand 3 decided by Mr. Justice D. K. Mahajan, the widow got land by oral gift from her father-in-law and it was stated in mutation that followed the gift, that the land was given to her for her maintenance and that she had no right to sell or mortgage. The learned Judge held, that the widow had become full owner of the land u/s 14(1) of the Act. The case before me is entirely different. I wonder how Blanda''s case helps the appellant.

In Mst. Kirpo vs. Bakhtawar Singh 3 the same learned Judge of this Court held, that section 14(2) of the Act is an exception to section 14(1) of the Act, and in order that section 14(2) may apply, it has to be established that the property was acquired by the female under a decree, order or instrument. If the estate is lost and reacquired by reason of a compromise it will tantamount to acquisition within the meaning of section 14(2). In that case the widow bad lost the property by remarriage. No such circumstances are there in the present case.

The ratio of Karmuri Seetharamaya Patcha Peraish, also proceeds upon an interpretation of the peculiar terms of the compromise decree in a suit between the widow and the son in-law of her deceased husband, that the widow got only a restricted right than what she was entitled to under Hindu Law, and that, therefore, the provisions of sub-section (2) of section 14, were applicable. In the present case, as already observed, the widow, far from acquiring any rights under the agreement, suffered a diminution of her limited estate which she had already acquired by succession.

In Puran Singh Major Resham Singh, decided by a Division Bench of this Court consisting of Falshaw'' C.J. and Mehar Singh J., the widow, Smt. Dhanti, had remarried which resulted in the forfeiture of her estate. There was also an express finding of the District Judge that the other widow, Smt Kishni, had, on account of unchastity under the custom applicable to the parties, forfeited the estate which she had inherited from her deceased husband, Pala Singh. After recording these findings, the District Judge considered the question of claim for maintenance of Kishni, By agreement, Kishni was, however, allowed to remain in possession of a certain amount of land in lieu of maintenance for her life time. On these facts, it was held, that the widow had lost the estate and had reacquired it by means of a compromise and it was tantamount to acquisition within the meaning of section 14(2) of the Act. In the case before me, it is nobody''s case that the widow had ever lost her property which she had inherited from her husband.

The judgment of Mr. Justice D.K. Mahajan of this Court in E.F.A. 358 of 1963. (Smt. Rama Vavti Smt. Bal Kaur 6) decided on 18th September, 1967, instead of advancing the case of Mr. Aggarwal, rather lends support to the contention of the Learned Counsel for the respondents. In that case, the facts were, that Mukand, a Joshi Brahman, died in 1914, leaving behind his pre-deceased son''s widow, Mst. Devki, and a daughter from her Mst. Rama Banti. He was also survived by his two daughters Mst. Bal Kaur and Mst. Jamna Devi. The daughters brought a suit for a declaration that they were the heirs of the deceased in preference to the pre-deceased son''s widow and her daughter. The defendants, Mst. Devki and her daughter, resisted the suit that they were entitled to succeed under special custom. In the alternative, they pleaded a right of residence in the family house. The District Judge reversing the decision of the trial Court, on appeal by Mst. Bal Kaur, held, that the predeceased son''s widow and her daughter were not preferential heirs in presence of the daughters of the last male-holder. But by consent of parties, it was settled that one house and two shops would be made available for maintenance to the pre-deceased son''s widow and her daughter. A sum of Rs. 1000/- was also fixed for the marriage expenses of the pre-deceased son''s daughter. On the marriage of the daughter, some of the property was to revert to Bal Kaur and her sister, while the house and the second shop were to remain in possession of the pre deceased son''s widow for maintenance till her death. Mst. Devki died after the year 1956, i.e. after the coming into force of the Act. After her death, execution of the compromise decree was taken out by Mst. Bal Kaur. Mst. Devki''s daughter objected on the ground that her mother, after the Act had come into force, became absolute owner of the property by the operation of section 14(1) of the Act. It was argued on behalf of Mst. Bal Kaur that the mere fact that Mst. Devki got the property by way of maintenance itself indicated that the decree prescribed a restricted estate in such property. This contention was repelled with the observations:

In the present case, the grant was only for the lifetime of the grantee and not on the death of the grantee, the property was to revert to the grantor. No other limitation or restriction was placed on the grant... The object of section 14(1) is to make life tenants absolute owners. Therefore, from the mere fact that the property was held by a female as life tenant, it cannot be appealed that after the Act she still continues to hold the property as life tenant....

I am very doubtful whether in face of the language of section 14(2) there can be an implied restriction, particularly when the words used in the statute are "prescribes a restricted estate", which indicates that the restriction must be express. In any event so far as the present decree is concerned, it does not either in express terms or by necessary implication prescribe a restricted estate... In my opinion, the case falls clearly within the ambit of section 14(1). I am unable to agree that the mere fact that a property was granted by the grantor by way of life maintenance, necessarily implies that the grantor prescribed a restricted estate in this property. If that were so, then in the Explanation of section 14(1) the words ''properly acquired in lieu of maintenance'' would not have figured and there could be no question of making those grants absolute so far as females were concerned. Before the commencement of the Act all such grants for females were for life, unless they provided otherwise. There would be a contradiction in terms if the language of section 14(1) and section 14(2) is rot read together. It is now well settled by a large number of decisions that section 14(2) is an exception to section 14(1) and the entire provision of section 14 has to be read together to give meaning to it.

I am in respect full agreement with the above rule enunciated by Mahajan J. In that case, however, there was an express finding of the District Judge that the widow or her daughter was not entitled to succeed in the presence of the daughters of the last male-holder. Consequently, that was a case where the rights of the widow in the property were acquired under that compromise decree and they did not pre-exist. This circumstance distinguishes that case from the one before me.

There is abundant authority in support of the proposition that while in the context of the Explanation to section 14(1), the word ''acquired'' in the sub-section (1) is to be given the widest possible connotation, the same word in sub-section (2) is to be construed in a narrower sense. The reason is that the Explanation is restricted to sub-section (1) and recognise to this Explanation was not intended by the Legislature to be taken for construing sub-section (2). Thus construed, a property within the meaning of sub-section (2) is said to be ''acquired'' when prior to the acquisition the female Hindu acquiring it had no interest in the property and it was for the first time by virtue of the gift, will, or other instrument mentioned in this sub section, that the property was acquired by her. Thus in Ude Chand Mst. Rajo 1, where a female was in possession of land in which she had acquired the widow''s estate on death of her husband, it was held by a Division Bench that her case would be covered by sub-section (1) and not by sub-section (2) of section 14 and that subsequent execution of compromise between her and her husband''s collaterals will not affect her position. The case before me is similar.

I have, therefore, no hesitation in upholding the concurrent finding of the Courts below on issue No. 1.

This takes me to issue No. 2. It relates to the execution of the will Mr. Aggarwal contends that in the instant case, there were several suspicious circumstances surrounding the will, namely, (1) that the will was not disclosed by its propounder, Gurdas Ram, when the collaterals of the husband of Mst. Bholi instituted proceedings against him before the Revenue Officer for correction of the entries in the Khasra Girdwari on the ground that on the death of the widow, they had become owners; (2) that the will was got written by a person who was not a professional scribe, and was not examined as a witness; and (3) that there was a material discrepancy in the evidence with regard to how when and from where the judicial paper for scribing this will was secured. It is also urged that the first Appellate Court should have given due weight in the matter of appraisement of the oral evidence to the opinion of the trial Court which had the advantage of observing the demeanour of the witnesses. It is further argued that the law laid down by the Supreme Court in Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, and AIR 1961 S.C. 529, is that where there are: suspicious circumstances the onus is on the propounder to explain them satisfactorily before the Court accepts the will as genuine. In the present case, canvasses Mr. Aggarwal, the propounder had failed to dispel the suspicious circumstances indicated above, by clear, cogent, and convincing evidence. Counsel thus wants me to review the evidence de novo and re-examine the reasons advanced by the lower Appellate Court, dispelling the suspicious circumstances set out above. Mr. Aggarwal maintains that in second appeal, the High Court is competent to do so because the very approach of the learned District Judge to the case was defective and opposed to the aforesaid principles laid down by the Supreme Court with, regard to the proof of wills. On this point Mr. Aggarwal has cited AIR 1957 Ori 86,and Madamonchi Romape Muthalura Bojjapa AIR 1963 S.C. 1635.

In reply, Mr. Sarin has contended that in this second appeal, the High Court cannot interfere with the findings of fact recorded by the lower Appellate Court even if it thinks that the reasons advanced by that Court for believing the witnesses of the propounder of the will, are not altogether impeachable. In support of this contention, he not only relies on the Supreme Court dictum in R. Ramachandran Ayyar Vs. Ramalingam Chettiar, cited by Mr. Aggarwal, but also on Raruha Singh Achat Singh AIR 1961 S.C. 1097; Sri Sinna Ramanuja Jeer and Others Vs. Sri Ranga Ramanuja Jeer and Another, ; Deity Pattabhiranaswamy S. Hanymaaya AIR 1959 S.C. 57.

It may be observed here that the learned District Judge has, in his elaborate judgment, dealt with each and every circumstances which weighed with the trial Court in holding that the due execution of the will by Mst. Bholi deceased had not been satisfactorily proved. The District Judge has given reasons for reversing the findings of the trial Court on each and every point. There is, no doubt, some force in the argument of Mr. Aggarwal that Gurdas Ram propounder of the will had not satisfactorily explained as to why he did not set up the will at the earliest opportunity when Ganda Ram made an application, to the Revenue Officer for correction of the Girdawari, alleging that he was the real successor of Mst. Bholi at that time the land was in the occupancy of Gurdas Ram and other tenants This omission on the part of Gurdas Ram, according to the learned District Judge, had been explained away satisfactorily by the circumstances that there the dispute was about the correction of the Girdwari entries and not with regard to the rights of ownership. Therefore, it would have been futile to put forth the will and raise the question of title, when the dispute was confined to the issue as to who was in cultivating possession of the land for that particular crop. The District Judge adds:

Up to Rabi 1959, the status of plaintiff could not be higher than that of tenant because that crop had been sown during the life time of Smt. Bholi and so it was not uncommon for him to assert that he had been a tenant of the land during that harvest. The rights of ownership had vested in Gurdas Ram only after the demise of Smt. Bholi and he asserted those rights by paying land revenue for Kharif, 1959, as is mentioned in Exhibit D. 1.

The above reasoning of the learned District Judge cannot by any reasoning be said to be absurd or preposterous; it is rather plausible. He has also given reasons, why a professional deed writer, and witnesses from the village of her husband were not associated. He has noted that Gurdas Ram is the son of the real brother of Smt. Bholi. The relations between Smt. Bholi and the collaterals of her husband were highly strained. She had to relinquish her residence in her husband''s village Gobindpur, and to shift to her paternal home in village Niazain about 25 years before her death. She died at the house of her brother, Gurdas Ram, about 2 years after the execution of the will. Smt. Bholi therefore, in the opinion of the District Judge, must have been anxious to pass on the usufruct of that property to her brother and nephew in preference to nephew of her husband. She had, says the learned Judge, hostility towards the collaterals of her husband and affinity for her brother and nephew. "The will, therefore ''indicates her ingrained desire to repay the debt under which she had been placed by her brother, Ganda Ram, and the latter''s son, Gurdas Ram."

Thus, there is nothing manifestly wrong or patently erroneous in the judgment of the lower Appellate Court on issue No. 2. Times out of number, their Lordships of the Supreme Court have pointed out that the error or defect in the procedure to which clause (c) of section 100(1) refers is, as the clause clearly and unambiguously indicates, an error or defect connected with, or relating to the procedure: it is not an error of defect in the appreciation of evidence adduced by the parties on the merits. That is why, even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure.

The following observations of Mr. Justice Gajendragadkar (as he then was) in Madamanchi Ramana Muthaluru AIR 1963 S.C. 1933, Bojjappa 10 are pertinent:

Where the Supreme Court is satisfied that in dealing with a second appeal the High Court has either unwillingly and in a casual manner or deliberately contravene the limits prescribed by section 100, Civil Procedure Code, by interfering with concurrent findings on simple questions of fact on ground of insufficiency of evidence, it becomes the duty of the Supreme Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by Courts of, fact; but on such occasions it is necessary to remember that what is administered in Courts is justice according to law and considerations of lair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of S. 100 it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid.

The findings of the lower Appellate Court under issue No. 2 are essentially findings of fact. I would, therefore, refrain from disturbing the same.

In the light of what has been said above, I would dismiss this appeal, living the parties to their own costs throughout.