Brij Lal vs Shrimati Soma and Another

P.C. Pandit, J.—This is a defendant''s appeal against the decree of the Additional District Judge, Ambala, confirming that of the trial Court, decreeing the plaintiff''s suit for possession of the land in dispute.

According to the allegations of Smt. Soma, plaintiff-respondent No. 1, the land in dispute measuring 27 bighas and 4 biswas originally belonged to her father, Kishan Chand, respondent No. 2, who on 3rd June, 1944 gifted the same to Smt. Indi, plaintiff''s mother, by a registered gift-deed and made her an absolute owner of the same. Smt. Indi died in November 1948, leaving behind the plaintiff as her sole heir. At the time of her death the plaintiff was only a minor. During her minority, her father, Kishan Chand, on 8th November, 1951 mortgaged 11 bighas and 2 biswas, out of the land in dispute, for Rs. 2,500/- in favour of Brij Lal, appellant. Subsequently, on 8th September, 1952 he created another mortgage of 6 bighas and 2 biswas, out of the suit land, in favour of one Kishan Chand, son of Mathra Dass, for Rs. 1,000/-.

On 23rd April, 1955 respondent No. 2 sold the entire land in dispute in favour of the appelant for Rs. 8,000/-. The mortgage in favour of Kishan Chand son of Mathra Dass had subsequently been redeemed. According to the plaintiff, all these alienations were void and inoperative as against her, because she was the real owner of the suit land and Kishan Chand had no right to alienate the same. She, accordingly, Drought the present suit for possession of the land in dispute.

The suit was resisted by the appellant, who denied the allegations made against him by the plaintiff and pleaded that the plaintiff was not the daughter of Smt. Indi that respondent No. 2 neither made a valid gift of the suit property in favour of his wife, Smt. Indi, nor was he competent to do so; that respondent No. 2 was governed by custom in matters of alienation and succession; that the appellant was entitled to protection u/s 41 of the Transfer of Property Act; that the suit had been filed in collusion with respondent No. 2 and that the appellant had effected improvements over the land in dispute after its transfer in his favour.

On the pleadings of the parties, a number of issues were framed by the trial Court.

The trial Judge held that the plaintiff was proved to be the daughter of Smt. Indi and respondent No 2; that respondent No. 2 had made a valid gift of the suit land in favour of Smt. Indi and he was fully competent to do so; that respondent No. 2 was not governed by custom in matters of alienation and succession; that the plaintiff being admittedly a minor till the date of the suit, it was not open to the appellant to claim protection u/s 41 of the Transfer of Property Act; that the suit had not been filed in collusion with respondent No. 2; and that it was immaterial whether the appellant effected any improvements over the land in dispute or not, because the plaintiff was a minor till the institution of the suit and she could, in no case, be bound by such improvements and that the appellant made them at his own risk and he could either remove them or seek his remedy against respondent No. 2, but he could have no claim against the plaintiff. On these findings, a decree for possession was passed in favour of the plaintiff.

When the matter went in appeal before the learned Additional District Judge, Ambala, he held that the gift made by respondent No. 2 in favour of Smt. Indi was not a sham transaction; that it had not been proved that respondent No. 2 was governed by custom in matters of alienation and succession; that by virtue of the gift-deed, Smt. Indi became the absolute owner of the suit property and, under Hindu Law, after her death, the plaintiff became her heir; and that the appellant was not entitled to protection u/s 41 of the Transfer of Property Act. On these findings, Brij Lal''s appeal was dismissed.

It may be mentioned that before the learned Additional District Judge, the counsel for the appellant argued that Smt. Indi had two daughters, the plaintiff and one Bimla. Bimla died in 1952 and so after her death, respondent No. 2 as her father, became the owner of her share. Under these circumstances, the plaintiff was at the most entitled to a decree for possession of her half share. The learned Judge held that since the appellant did not plead in his written statement that the plaintiff was not the sole heir of her mother or that she had only one-half share in the land in dispute no issue was framed on this point and, consequently, no evidence was led on the same. Under these circumstances, no new plea could be taken by the appellant in his appeal.

Learned counsel for the appellant, in the first instance, submitted that the registered gift-deed, Exhibit P. 1, did not confer an absolute estate on the donee. Consequently, Smt. Indi did not become a complete owner of this property and she had only a life estate therein. Even if the parties were governed by Hindu Law, as held by the Courts below, after Smt. Indi''s death, the property would go to her husband or his heirs and not to her daughter, in the first instance. It was only if it was found that Smt. Indi was the absolute owner of this property that the daughter would succeed in preference to the husband.

In order to decide this point, it is necessary to find as to what sort of estate, absolute or limited, was conferred by respondent No. 2 on Smt. Indi by virtue of the gift-deed. Exhibit P. 1. It is undisputed that where a gift by a husband to his wife passes an absolute estate, she can dispose of the property at her pleasure by act inter vivos or by will but not if it passes a limited estate. In the former case, the property passes on her death intestate to her stridhan heirs and in the latter case it passes to her husband''s heirs (see para 401 of the Principles of Hindu Law by Mulla, 12th Edition). The gift deed in the present case mentions that the donor was making this gift, because he was very fond of his wife, who had rendered services to him and, consequently, he was pleased with her. The deed further mentions that he was a complete owner of the property mentioned therein and he was transferring all. his rights in favour of the donee. He had given up the possession of the gifted property and delivered the same to the donee as an owner thereof like himself (misal khud). It was also stated that whatever rights the donor had in the property, the same would be enjoyed by the donee. The donor as well as his heirs henceforth would have no right in this property and if anybody laid a claim to the same, his claim would be false. Bat it was clearly mentioned therein that the donee would have no right to alienate this property in any manner. Now the question, is whether this gift deed confers an absolute Or a, limited estate on the donee. This will depend on the terms of the deed, as mentioned above. It is undisputed that the deed has to be read as a whole to find out the intention of the donor. It is true that in the earlier part of this document the donor had stated that whatever rights he had in the property were being transferred by him to the donee, who like him would become the owner thereof. But, at the same time, he put a rider that the donee would not be entitled to alienate the property in any manner, whatsoever. Reading the document as a whole, I have no doubt in my mind that it was not the intention of the donor that absolute estate should pass to the donee. All that he wanted was that she should enjoy the property but keep it intact and not alienate the same in any form or manner. The reason for doing so seems to be that at the time when he made this gift he had two unmarried daughters alive and it is possible that he may be thinking of preserving this.property for their sake. It is also pertinent to mention that this gift was made in 1944 when the Hindu Succession Act, 1956, was not in force and, therefore, in construing this will, as is laid down in several decisions, it is proper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property, who would desire that an estate especially an ancestral one, should be retained in their family. A somewhat similar will came up for interpretation in Radhey Sham v. Official Receiver of Estate of Ram Charan Dass A I R. 1849 All 464, and a Division Bench of that Court held that the donee did not acquire an absolute estate under that deed of gift. No case, taking a contrary view, regarding the construction of a gift of this nature was brought to my notice by the learned counsel for the respondent.

The lower appellate Court, while holding that Smt. Indi got an absolute estate under the present gift deed was influenced mainly by three considerations-(1) that after the gift in question, the land was mutated in her name, (2) that in section 10 of the Transfer of Property Act, it was laid down that where property was transferred subject to a condition or limitation restraining the transferee from parting with or disposing of his interest in the property, the condition or limitation was void and (3) that Smt. Indi treated this property as her absolute ownership, because she sold a portion of the same by deed. Exhibit P. W. 4/1, dated 14th November, 1945, considering herself as a full owner.

As regards (1), it is of no consequence because after the execution of the registered deed, the revenue authorities had to mutate the land in favour of the donee. Regarding (2), section 10 of the Transfer of Property Act would have no application to the facts of this case, because, after going through the entire deed, I have already held that absolute ownership was not given to the donee by Kishan Chand. Regarding (3), this circumstance again is of no materiality in determining the intention of the donor at the time of the execution of the gift deed as to whether he was giving full ownership or life estate to the donee.

In view of what I have said above, on the death of Smt. Indi, the property would go to her husband, Kishan Chand, and not to her daughter. The plaintiff''s suit for possession, therefore, would fail.

In this view of the matter, no other question arises for determination.

The result is that the appeal succeeds and the judgment and the decree of the lower appellate Court are set aside and the plaintiff''s suit is dismissed. In the circumstances of this case, however, I will leave the parties to bear their own costs in this Court as well.