Darshan Kaur and Another vs Mehal Singh and Others

N.K. Kapoor, J.—This is defendants regular second appeal against the judgment and decree of the Additional District Judge whereby the appeal was accepted thereby decreeing the suit of the plaintiffs.

Briefly put, one Balaka Singh was owner of the property which was inherited by Hardit Singh and on his death by Josha Singh. Josha Singh had four sons, namely Mohinder Singh, Mehal Singh, Moola Singh and Kabul Singh. Mohinder Singh predeceased Josha Singh leaving behind Smt. Mejo widow and Darshan Kaur daughter (the present appellants). Baldev Singh, Gurdev Singh and Jaimal Singh are the sons of Mehal Singh, Avtar Singh is the son of Moola Singh and Swaran Singh and Bachittar Singh are sons of Kabul Singh. All these persons are plaintiffs.

Plaintiffs filed a suit for declaration to the effect that they are owners of the land as detailed in the head note of the plaint and that defendant No. 1 Smt. Mejo is only a limited owner and so defendant No. 2 Smt. Darshan Kaur has no concern or interest in the suit land, with a consequential relief of permanent injunction restraining the defendants not to alienate the suit land in any manner.

Upon notice, both the defendants appeared and filed written statement. They denied the material averments made in the plaint. According to the case set up by the defendants, the land measuring 289 kanals 2 Marlas was originally owned by Hardit Singh s/o Bulaka Singh from whom Josha Singh inherited the property and so Josha Singh along with his four sons became entitled to the same i.e. 1/5th share each. It is in recognition of this right that defendant No. 1 was put in possession of the property (as Mohinder Singh had already died). The defendants also set up a plea of adverse possession. She further made averment to the effect that she is full owner of the property and so competent to deal with as she likes. Tamleeknama was stated to be a void document having been prepared in collusion with the scribe and the witnesses to defeat the rights of the defendants. It was further stated that defendant No. 1 has already sold the land vide sale deed dated 5.1.1987 to defendant No. 2 for consideration of Rs. 21,000/-. This way she is a bona fide purchaser in good faith for consideration without any notice of any Tamleeknama and as such protected Under Section 41 of the Transfer of Property Act.

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

Whether the plaintiffs are owners in possession of suit land and defendant No. 1 is only a limited owner on the basis of Tamleeknama dated 28.8.1975? OPP.

Whether the suit is not maintainable in the present form, as alleged? OPD.

Whether the suit is time barred? OPD.

Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD.

Whether the suit is properly valued for the purposes of Court fee and jurisdiction? OPP.

Whether the plaintiffs are estopped by their act and conduct? OPD.

Whether Darshan Kaur defendant No. 2 is bona fide purchaser in good faith for consideration without notice on the basis of sale deed dated 5.1.1987 and is protected Under Section 41 of Transfer of Property Act? OPD.

Whether the sale deed in favour of defendant No. 2 is null and void, without consideration and a paper transaction, as alleged? OPP.

Whether the defendants have become owner of the suit land by way of adverse possession in the alternative, as alleged? OPD.

If issue No. 1 is proved, whether Tamleeknama is void document and illegal and paper transaction, as alleged? OPD.

ADDL. ISSUE

Whether Josha Singh executed a registered will dated 22.3.1971 in favour of the plaintiffs No. 4 to 9. If so its effect? OPP.

11) Relief.

The trial Court examined issues No. 1 and 10 together and came to the conclusion that Tamleeknama having not been proved is illegal, void being a unilateral document and hence does not bind the defendants. Accordingly, the trial Court held that defendant Smt. Mejo cannot be held to be limited owner of the suit land in terms of said Tamleeknama. Examining the plea of the parties whether Smt. Mejo was entitled to a share in respect of the ancestral/coparcenary property, the Court held that on the death of a coparcener notional partition is presumed and so she is entitled to get her share which her husband would have got in formal partition. Accordingly, the Court held that Smt. Mejo had 1/5th share in the joint holding on the basis of a notional partition. Since she has been found to be in possession from the year 1978 onwards, both these issues were decided in favour of the defendants and against the plaintiffs. Issue No. 2 was decided in favour of the defendants holding that the suit in the present form is not maintainable. Under issue No. 3, the suit was held to be time barred. Issues No. 4, 5 and 6 were decided against the defendants and in favour of the plaintiffs. Under issues No. 7 and 8, it was held that defendant No. 2 is a bona fide purchaser in good faith and for consideration and so both these issues were decided in favour of the defendants and against the plaintiffs. Issue No. 9 was also decided in favour of the defendants holding that her possession over the suit land was open and hostile and without any hindrance from any quarter which has consequently ripened into ownership. Under the additional issue, it was held that the plaintiffs have failed to prove the execution of the will as well as loss of the original will, so this issue was also decided against the plaintiffs. Resultantly, the suit of the plaintiffs was dismissed.

The appellants Court while re-examining the matter did not give decision in respect of each issue. The Court, however, dilated upon the pleas raised by the appellants in respect of Tamleeknama, their possession being co-sharer and so the suit being within limitation and their contention that the sale deed was merely a sham transaction as no part of the sale consideration was paid before the Sub Registrar at the time of registration of the sale deed. Similarly, grievance was made with regard to the findings of the trial Court in respect of the will dated 22.3.1971. Examining the Tamleeknama dated 28.8.1975, the lower appellate Court considered it to be a valid document as the same had been scribed by deed writer Barkat Ram and attested by Dr. Dalip Singh and Santa Singh Lambardar and it being a registered document. Since it was a registered document, there was no necessity to examine the attesting witnesses. According to the Court, Tamleeknama is unilateral act and hence signatures of Smt. Mejo were not required on Tamleeknama. Moreover, mutation had been sanctioned in favour of Smt. Majo and her name finds recorded in the revenue paper and it is on the basis of this entry that she is shown to be in possession of the property thereafter. However, the Court came to the conclusion that since Smt. Mejo had succeeded on the basis of Tamleeknama, she has a life interest and hence could not alienate the suit land during her life time. Discarding the plea of the defendants with regard to notional partition, it was held that no such plea had been taken in the written statement. Examining the plea of the defendants that the plaintiffs are not in possession of the suit land, the Court held that possession of Smt. Mejo is that of a co-sharer and so the plaintiffs will be deemed to be in possession of the property. Accordingly, issues No. 1 and 2 were reversed. Reversing the finding of the trial Court in respect of the sale deed executed by Smt. Mejo in favour of her daughter Smt. Darshan Kaur, it has been held that since Smt. Mejo was a limited owner and the fact that the sale had been made in favour of the daughter, it can be presumed that Smt. Darshan Kaur had the knowledge of Tamleeknama and so such a sale is without consideration and is thus not protected Under Section 41 of the Transfer of Property Act. Issues No. 7 and 8 were accordingly reversed. Similarly, the Court held that the will has been proved to be a valid document and mere non-mentioning the names of the widow and daughter of Mohinder Singh cannot be taken to a suspicious circumstance. Accordingly, the appeal was accepted, setting aside the judgment and decree of the trial Court and so the suit of the plaintiffs was decreed.

Assailing the judgment and decree of the Additional District Judge, the learned counsel for the appellants urged that the Court below has reversed the well considered judgment of the trial court without specifically reversing the findings of the trial Court on all these issues. In fact, the lower appellate Court has disposed of all the issues in the form of an essay thereby prejudicing the case of the appellants. According to the counsel, even as per admitted fact the conclusion arrived at by the lower appellate Court is unsustainable in law. Elaborating the counsel urged that admittedly Balaka Singh was the original owner of the property in dispute which was inherited by Josha Singh after the death of his father Hardit Singh. Thus, this was ancestral/coparcenary property of Josha Singh and his sons, namely, Mohinder Singh, Mehal Singh, Moola Singh and Kabul Singh. Since Mohinder Singh predeceased Josha Singh leaving behind the defendants as his heirs, it was a coparcenary property, and was to devolve as per Section 6 of the Hindu Succession Act and since Smt. Mejo is a surviving female as per class I of the Schedule, the interest of the deceased in the Mitakshara coparcenary property is to devolve by testamentary or intestate succession and not by survivorship. Smt. Mejo had a right of maintenance, Tamleeknama alleged to have been executed by the plaintiffs (though not proved according to law) at best recognises the defendant No. 1''s right to maintenance out of share of Mohinder Singh in the coparcenary property. This way the Additional District Judge has erred in law in construing the Tamleeknama to be a clog upon the rights of defendant No. 1 to deal with the property in any manner. Reliance has been placed upon the decision of the apex Court in case reported as Smt. Gulwant Kaur and Anr. v. Mohinder Singh and Ors., AIR 1987 Supreme Court, 2251, wherein it has been held that where a Hindu wife gets land in lieu of maintenance from her husband and she enjoys the produce therefrom, her rights becomes absolute by virtue of Section 14(1) of the Hindu Succession Act. Assailing the finding of the Additional District Judge that the Tamleeknama stands proved in view of the statement of Mehal Singh, one of the plaintiffs, and endorsement of Sub Registrar, the counsel urged that the approach of the Court is contrary to the mandate of Section 68 of the Indian Evidence Act. In the instant case, neither the scribe nor any of the attesting witnesses has been examined. It being a registered document, the same could not be received in evidence unless properly proved. Even otherwise, this document merely recognises defendant No. l''s right to maintenance in the coparcenary property. The limited ownership has now ripened into full ownership in view of the provisions of Hindu Succession Act, so the sale deed executed by defendant No. 1 in favour of defendant No. 2 could not be challenged by the plaintiffs nor it could be set aside. Accordingly, the judgment and decree of the Additional District Judge deserves to be set aside.

Learned counsel for the respondent-plaintiffs argued that the Additional District, Judge after carefully examining the case on fact as well as on law has rightly come to the conclusion that defendant No. 1 Smt. Mejo has been given only a limited right as per Tamleeknama Exhibit P-2 which rights are circumscribed in view of Section 14(2) of the Hindu Succession Act. According to the counsel, Smt. Mejo has acquired the property on the basis of Tamleeknama which gives her a limited right to enjoy the fruits of the property during her life time and no further. Thus, the limited estate created does not stand enlarged in view of specific bar of Section 14(2) of the Hindu Succession Act. Similarly, the Additional District Judge has rightly came to the conclusion that no further proof was to be adduced to prove Tamleeknama Exhibit P-2. In fact, it is a unilateral act on behalf of the plaintiffs whereby they mutually agreed to give defendant No. 1 a restricted right to enjoy the fruits of the property during her life time. Such a document can be received in evidence even when neither the scribe nor any of the attesting witnesses have been examined. In any case, it is not the case of defendant No. 1 that this document is non existent or that she has not been put in possession on the basis of this document. In support of the contention that Tamleeknama created only a limited estate in favour of defendant No. 1, learned counsel placed reliance upon the judgments in cases reported as Bhura and Ors. v. Kashi Ram 1995 (1) CCC 307; Kothi Satyanarayana Vs. Galla Sithayya and Others, ; Sumer Chand v. Ram Kishan and Ors. (1990)98 P.L.R. 459 ; Kartar Kaur and Another Vs. Bhagwan Kaur and Others, and Bhoop Singh Vs. Ram Singh and Others, .

I have heard learned counsel for the parties, perused the judgments of the Courts below and such other documents which were referred to by the respective counsel during their submissions. There is no dispute between the parties that Balaka Singh was the original owner of the property succeeded by Hardit Singh and thereafter Josha Singh. Thus, the property which Josha Singh inherited from Hardit Singh, his father, was ancestral/coparcenary property of Josha Singh and his sons, namely, Mohinder Singh, Mehal Singh, Moola Singh and Kabul Singh. Mohinder Singh predeceased Josha Singh leaving behind Smt. Mejo, widow, and Smt. Darshan Kaur, daughter. It is the case of the appellants that Mohinder Singh being a coparcenar had interest in the coparcenery property and after his death defendant No. 1 Smt. Mejo being his widow succeeds to the interest of the deceased in the coparcenery property i.e. parties succeed as per Section 6 of the Hindu Succession Act. Even otherwise, Smt. Mejo had a right of maintenance in the coparcenary property and in recognition of her pre-existing right that the property was transferred ostensibly creating a limited estate as per Tamleeknama. Section 6 of the Hindu Succession Act reads as under:-

"6. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenery property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenery and not in accordance with this Act:

Provided that, if the deceased had left him surviving a female relative specified in Class I of the schedule of a male relative, specified in that class who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenery property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation 1: For the purposes of this section, the interest of Hindu Mitakshara coparcenery shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

Explanation 2: Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenery before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. This section may be read with Sections 8 and 30 of the Act."

Proviso of Section 6 of the Hindu Succession Act specifically protects the rights of female relative specified in Class I of the Schedule. Since the widow is amongst class of persons enumerated under Class I of the Schedule, interest of the deceased in the coparcenery property is to devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivor-ship. Examined this way, Smt. Mejo succeeds the interest of her deceased husband in the coparcenery property. Even prior to coming into enforcement of the Hindu Succession Act, the widow had a right to maintenance in the property left by her husband or to the extent of his share in the ancestral/coparcenery property. What exactly is the share of the widow can be ascertained on the footing of a notional partition as on the date of his death i.e. to say the quantum of the share to be allotted to the heirs of the deceased coparcener will be on the footing of the coparcenery property and existing on the date of his death when the partition deemed to have taken place. Thus, there is no manner of doubt that the widow had interest in the coparcenery property on the death of her husband. According to the defendants, it is in lieu of this interest that the plaintiffs transferred property to her to the extent of her share - in the instant case 1/5th of the total holding; whereas the plea of the plaintiffs is that she had no interest in the property and it is a gratuitous act performed by the plaintiffs giving her a limited right to reap the fruits of the property during her life time. In this context, the Tamleeknama set up by the plaintiffs assumes some importance. The plaintiffs resisted the claim of the defendants on the basis of Tamleeknama dated 28.8.1975. Originally the plaintiffs set up Tamleeknama dated 28.5.1973. It was stated by the plaintiffs that the original has been lost and they be permitted to lead secondary evidence. The trial Court vide order dated 8.1.1990 permitted the plaintiffs to lead secondary evidence. Subsequently, three certified copies of Tamleeknama of different dates were produced on record. One was marked A dated 28.5.73; the second was marked as 8 dated 28.8.73 and the third was exhibited as Exhibit P-2 dated 28.8.75. An objection was raised by the counsel for the defendants that the document sought to be adduced in evidence were, in fact, beyond pleadings and so amendment of the plaint was sought by the plaintiffs which was granted and finally the date of Tamleeknama was ordered to be corrected from 28.5.73 to 28.8.75 which is Exhibit P-2. The trial Court ignored this document on the ground that neither the scribe of the document nor any of the attesting witnesses have been examined. Since it was a registered document, it had to be properly proved. The appellate Court, however, chose to consider this document on the ground that there was no requirement under law to prove such a document.

I find the approach of the Additional District Judge to be erroneous. As per decision of the apex Court in case reported as Ram Gopal Vs. Nand Lal and Others, ''Tamleeknama'' means a document by which ''Maliki'' or ownership rights are transferred and the document expressly says that the grantee has been made a ''Malik'' or owner. That is to say that it is a document by which ''Maliki'' or ownership rights are transferred. Since there was transfer of interest in the immovable property exceeding Rs. 100/-, it was to be registered in terms of Section 17 of the Registration Act. It is precisely for this reason that it was got scribed and attested by two witnesses and thereafter got registered. Section 68 of the Indian Evidence Act deals with the proof of documents required by law to be attested. According to this section, such a document cannot be adduced in evidence unless one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. There is no evidence on record that the scribe as well as the attesting witnesses have died. Rather, as per evidence on record, the attesting witnesses as well as the scribe are alive. The matter can be examined from another angle also. Even if it be taken that there was no need to prove this document, yet it is to be examined whether rights of the defendants flow from this document or it merely recognises her pre-existing right of maintenance. This matter has been a subject matter of adjudication in a number of cases before this Court as well as before the other High Courts, and finally it was determined by the apex Court in case reported as Vaddeboyina Tulasamma and Ors. v. Vaddeboyina Sesha Reddi (dead) by L.Rs. AIR 1977 SC 1944. After examining a catena of judgments and also reviewing various decisions of the Courts, it was held as under:-

".......It will, therefore, be seen that Sub-section (1) of Section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property." Examining the Sub-section (2) of Section 14, it has been held as under:-

".....This provision is more in the nature of a proviso or exception to Sub-section (1) and it was regarded as such by this Court in Badri Parshad v. Smt. Kanso Devi (1970) 2 SLR 95 : AIR 1950 SC 1963. It excepts certain kinds of acquisition or property by a Hindu female from the operation of Sub-section (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of women in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in Sub-section (1). It cannot be interpreted in a manner which would rob Sub-section (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by Sub-section (1). The language of Sub-section (2) is apparently wide to include acquisition of property by a Hindu female under an instrument or a decree or order or award where the instrument, decree, order or award prescribes a restricted estate for her in the property and this would apparently cover a case where property is given to a Hindu female at a partition or in lieu of maintenance and the instrument, decree, order of award giving such property prescribes limited interest for her in the property. But that would virtually emasculate Sub-section (1) for in that event, a large number of cases where property is given to a Hindu female at a partition or in lieu of maintenance under an instrument, order or award would be excluded from the operation of the beneficient provision enacted in Sub-section (1) since in most of such cases, where property is allotted to the Hindu female prior to the enactment of the Act, there would be a provision, in consonance with the old Sastric law then prevailing, prescribing limited interest in the property and where property is given to the Hindu female subsequent to the enactment of the Act, it would be the easiest thing for the dominant male to provide that the Hindu female shall have only a restricted interest in the property and thus make a mockery of Sub-section (1). The Explanation to Sub-section (1) which includes within the scope of that sub-section property acquired by a female Hindu at a partition or in lieu of maintenance would also be rendered meaningless, because there would hardly be a few cases where the instrument, decree, order of award giving property to a Hindu female at a partition or in lieu of maintenance would not contain a provision prescribing restricted estate in the property. The social purpose of the law would be frustrated and the reformist zeal underlying the statutory provision would be chilled. That surely could never have been the intention of the Legislature in enacting Sub-section (2)........." Accordingly, it was held that Sub-section (2) must, therefore, be read in the context of Sub-section (1) so as to leave as large a scope for operation as possible to Sub-section (1) and so read, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. So, if the property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of Sub-section (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property.

In the context of the present case, Smt. Mejo indeed had a right of maintenance as well as right to share the coparcenery property being Class I heir as per Section 6 of the Hindu Succession Act and the Tamleeknama even if be taken to be a valid document, at best is in the nature of recognition of her pre-existing right of maintenance as well as share in the coparcenery/ancestral property being widow of Mohinder Singh. Accordingly, Section 14(1) of the Hindu Succession Act would apply conferring full ownership upon such a person.

To be fair to the counsel for the respondents, it would be appropriate to examine the judgments cited. In Bhura Ram''s case (supra) the Court held that the limited estate conferred upon a female by the will cannot be enlarged into an absolute estate even though she was possessed of that property at the time of coming into force of Act. As per facts, one Tula Ram was the common ancestor of the parties. He had a son by name Pancham, who died on August 6, 1926. Pancham had three wives by name Smt. Punji, Smt. Kaushalya and Smt. Sarupa. Sarjabi was the dauthter of Smt. Punji, while Gopi Chand was adopted as son by Smt. Kaushalya and Pancham. According to the pleadings of the parties, Pancham executed a will on May 16, 1987 in favour of Sarjabi, whereby he bequeathed certain properties to her. On the death of Pancham, Sarjabi, who was in possession of the suit property, as a legate under the will of Pancham, made a gift of the suit land which was challenged stating therein that she had only a life interest. On facts as has been noticed above, Smt. Sarjabi had no pre-existing right in the property. She merely succeeded on the basis of will. Thus, this decision has no applicability to the facts of the present case.

Similarly, the decision in Kothi Satyanarayana''s case (supra) does not help the plaintiffs in any manner. Brief facts which have been noticed are that it is in pursuance to some settlement that widow was given life interest in the property and the Court examined whether such a life estate under the settlement deed makes her full owner Under Section 14(1) of the Hindu Succession Act. The apex Court noticed that "all the three Courts have held that the life-estate carved out under the 1987 settlement did not get transformed into title in favour of the widow and she did not acquire any alienable interest in the properties to be bequeathed in favour of her brother." So it is in this context that the Court held that settlement deed is an instrument contemplated under Sub-section (2) and so creates a restricted estate in favour of the widow. In these circumstances, it was held that Sub-section (1) of Section 14 of the Hindu Succession Act is not attracted.

The decision in Bhoop Singh''s case (supra) has no bearing at all to the controversy raised in this appeal.

The decision in Kartar Kaur''s case (supra) is authority for the proposition that the certificate of the registering Officer is a relevant piece of evidence for proving execution of the Will. There is no quarrel with this proposition of law.

Similarly, the decision in Sumer Chand''s case (supra) is as per facts of the case. It does not deal with the right of widow to maintenance and her right to share in the coparcenery property being Class I heir of the deceased coparcener.

In view of what has been discussed above, I am of the view that Smt. Mejo had a right of maintenance as well as right to share in the interest of the deceased coparcener being Class I heir and so the Tamleeknama at best was recognition of her pre-existing right though ostensibly limiting it to a life estate. Since Smt. Mejo had a pre-existing right irrespective of the stipulation in the Tamleeknama, she became full owner in terms of Section 14(1) of the Hindu Succession Act and so can deal with the property in any manner she likes. Consequently, the sale deed executed by her in favour of Darshan Kaur could not be assailed by the plaintiffs. Resultantly, I accept the appeal, set aside the judgment and decree of the Additional District Judge and affirm the judgment and decree of the trial Court whereby the suit of the plaintiffs was dismissed. Parties shall bear their own costs.