Gurbachan Singh vs Chain Singh

R.L. Anand, J.—Unsuccessfully plaintiffs Gurbachan Singh and Ors. have filed the present R.S. A. and it has been directed against the judgment and decree dated 18.1.1980 passed by the Court of Sub Judge 2nd Class, Tarn Taran, who dismissed the suit of the plaintiffs-appellants for possession.

The brief facts of the case can be noticed in the following manner :

The plaintiffs-appellants filed a suit for possession of the land measuring 284 killas 2 marlas consisting of khasra Nos. mentioned in the head note Of the plaint itself, situated in the area of village Panjar, Tehsil Tarn Taran. The following pedigree table will be useful in narrating facts of the case :

____________________________________________________________________________________ Prem Singh ____________________________________________________________________________________ Mian Singh Chattar Singh Amar Singh Uttam Singh Karam Singh Lachhman Singh (Plaintiff deceased) Natna Singh Inder Singh Wasava Singh (Pltif. No. 4) Nando Bakshish Singh (Pre-deceased sons of Uttam Singh) Sarup Kaur. Widow Lachhman Singh Raghbir Singh Harnam Singh (Pltif. deceased) Surat Singh Malkiat Kaur, Widow (Pltif. No. 5) Chain Singh (Defd. No. 1) Gurbinder Kaur Mohinder Singh Bagicha Singh (Defd. No. 2) (Plaintiff No. 6) (Pltif No. 2) Surat Singh (Defd. No. 4). Gurbachan Singh Joginder Singh (Pltif. No, 1) (Defd. No. 3) Smt. Guro (Pltif. No. 3) __________________________________________________________________________________ 4. Uttam Singh son of Mian Singh was the owner of the suit land and he died on 29.12.1940. Natna Singh was son of Uttam Singh but he died during the life time of his father. Mian Singh, Chattar Singh and Amar Singh were real brothers and they were sons of Prem Singh. Inder Singh, one of the plaintiffs, is the grand-son of said Chattar Singh and Bakshish Singh, whose legal heirs are plaintiff Nos. 5 and 6, was also grand-son of Chattar Singh. Gurbachan Singh and Mohinder Singh and Guro are sons and daughter of Lachhman Singh son of Amar Singh. The said Uttam Singh in order to deprive Karam Singh and Lachhman Singh, his brothers, executed a Will dated 26.12.1940, creating a life estate in favour of Smt. Saroop Kaur, his daughter-in-law, being the widow of his,pre-deceased son Natha Singh. In the Will, she was forbidden to alienate the property and after her death, in terms of the Will, the property was to pass on to Nando, daughter of Uttam Singh and Deso d/o Wasawa Singh, who was also pre-deceased son of Uttam Singh. In this manner it can be said that Uttam Singh executed the Will in favour of his daughter-in-law Saroop Kaur and in favour of his daughter Nando and his grand-daughter Deso. After the death of Uttam Singh, Lachhman Singh and Karam Singh, the real brothers of Uttam Singh and predecessor-in-interest of the plaintiffs filed a declaratory suit that the Will executed by Uttam Singh will not affect their reversionary rights as the land in the hand of Uttam Singh was ancestral and the parties were governed by the custom, according to which the ancestral immovable property could not be alienated except for legal necessity and for a consideration and as according to the prevalent custom, the widow of a pre-deceased son, his daughter and grand-daughter could not succeed in preference to the second degree collaterals of Uttam Singh. That suit was decreed on 18.12.1941 and it was held that Saroop Kaur had inherited the property as a life estate by virtue of the said Will and as such, the Will as not to affect the reversionary rights of the predecessors-in-interest of the plaintiffs after her death. That decision was upheld by the Appellate Court. Saroop Kaur died on 14.7.1971. According to the provisions of the Hindu Succession Act (hereinafter referred to as the Act) and also in terms of the decree dated 18.12.1941 of the Civil Courts, the plaintiffs are only heirs of Saroop Kaur, Deso and Nando, who have died and as such, they succeeded to the property of Uttam Singh, defendant Nos. 1 to 4 i.e., Chain Singh, are in possession of the suit land as trespassers. They are not the real heirs of Uttam Singh. They alleged that Saroop Kaur had made a Will and gift in their favour. No such Will or gift was ever made nor Saroop Kaur was competent to do so in view of the decree dated 18.12.1941. If there is any alienation or disposition of the property by Saroop Kaur, the same is in violation of the terms of the Will dated 26.12.1940 and the decree dated 18.12.1941. Saroop Kaur being not the full owner of the suit property, she could not alienate the same. The defendants were called upon to admit the ownership of the plaintiffs and to surrender the possession. They have refused to do so. Hence the suit.

The suit was contested by the defendants and their case was that the plaintiffs have no relationship with Uttam Singh in any way. Saroop Kaur was the absolute owner of the property and she was competent to dispose of the same. They also averred that if Uttam Singh was the original owner of this property, then the same was inherited by Saroop Kaur, widow of his pre-deceased son Natha Singh. They also denied the ancestral nature of the suit property. They claimed themselves to be owner of the suit land on the basis of the Will dated 2.7.1961 and a gift deed dated 19.5.1970, executed in their favour by Saroop Kaur. It was also pleaded by the defendants and the suit is time barred. It is barred under Order 2 Rule 2, C.P.C. They are the grand-sons of Nando, who was married to Bahal Singh, and therefore, they are preferential heirs of Saroop Kaur as compared to the plaintiffs. Saroop Kaur had succeeded to the estate of Uttam Singh on the basis of the Will dated 26.12.1940 as daughter-in-law and she being in possession of the suit land in 1956 her limited rights were enlarged to make her as full owner of the property by coming into force of the Act and therefore, she was competent to dispose of the property by way of Will or gift.

Replication was filed by the plaintiffs who reiterated the allegations of the plaint by denying those made in the written statement.

From the pleading of parties, the following issues were framed by the Trial Court:

"(1) Whether Uttam Singh was the owner of the property in suit? OPP (2) Whether Saroop Kaur was not full owner of the property in suit and she held the same as life estate?. OPD (3) Whether Saroop Kaur was competent to make valid gift in favour of the defendants? OPD (4) Whether Saroop Kaur made a valid Will dated 2.7.1968 in favour of the defdts? OPD (5) Whether the pltffs are collaterals of Uttam Singh and are entitled to the possession of the land? OPP (6) What is the effect of the judgment and decree dated 18.2.1941 passed by Shri Joawala Singh, Sub Judge? OPP (7) Whether the suit is barred under Order 2 Rule 2 CPC? OPD (8) Whether the suit is within time? OPP (9) Relief" 8. The parties led oral and documentary evidence and vide the judgment and decree dated 10.1.1977, the suit was dismissed.

Aggrieved by the judgment and decree of the Trial Court the plaintiffs filed le first appeal in the Court of the Addl. Distt. Judge, Amritsar, who for the reasons given in paras 5 to 9 of the judgment, which read as under, dismissed the appeal:

"5. After having heard the learned Counsel for the parties at length and after having perused the file in details I have come to the conclusion that there is no merit in the appeal. By the Will Ex. P-1, Uttam Singh had bequeathed to Saroop Kaur life estate in all his movable and immovable property. It was argued by the learned Counsel for the appellant that since Saroop Kaur had got life estate in the property in dispute only by virtue of the Will executed by Uttam Singh her case fell under Sub-clause (2) of Section 14 which excludes property obtained by Will or gift etc. from the operation to Sub-section (1) under which limited rights of a female Hindu as owner are enlarged to full ownership. The argument is untenable because Saroop Kaur had pre-existing right at the time the Will was executed in her favour by Uttam Singh is admitted that the parties being Jats were governed by custom prevailing among the agriculturists of Punjab in matter of succession. 50 of the Rawajaam of Amritsar District has been answered in terms that the widow of the predeceased son is competent to inherit the property of her father-in-law for her life. That being the position the plaintiffs cannot be heard to say that the ownership of the property in dispute by her was confined within the four corners of the Will executed by Uttam Singh. Interpreting Sub-section (2) of Section 14 their Lordships of the Supreme Court observed in Seth Badri Prasad Vs. Srimati Kanso Devi, , that it would come into operation only if acquisition in any of the methods indicated therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of the property. The learned Subordinate Judge rightly held under Issue No. 2 that Saroop Kaur was full owner of the property in dispute, at the time of the death.

If she had become full owner of the property in dispute by operation of Section 14 of the Hindu Succession Act she was also competent to make a valid gift or Will. Under the gift deed Ex. D1 which has not been challenged by any evidence in rebuttal she had gifted her landed property to the defendants in equal shares. The findings of the Trial Court on Issue No. 3 are also upheld.

Saroop Kaur had also executed Will Ex, D2 in favour of the defendants. This has been proved by Lazat Rai son of the deceased scribe Durga Das and one of the attesting witnesses namely, Sajjan Singh. The findings of the Trial Court on Issue No. 4 are also confirmed.

The pedigree table will show that even if Saroop Kaur had not executed any gift or Will, the plaintiff could not succeed to her estate because the defendants were her preferential heirs as compared with the plaintiffs. The defendants fall in the fourth category of the heirs in the Schedule to Section 8 whereas the plaintiffs fall in none of the categories mentioned therein. The learned Trial Court rightly held under Issue No, 5 that the plaintiffs are not entitled to the possession of the land in dispute.

Issue No. 6 as also correctly decided because with the coming into force of the Hindu Succession Act and consequent upon the ownership of Saroop Kaur, the decree obtained by the plaintiffs was of no effect."

Nobody has given the appearance on behalf of the respondents. I have heard Ms. Harsh Rekha, Counsel for the appellants and with her assistance gone through the record of this case.

The learned Counsel for the appellants submitted that there was a decree dated 18.12.1941 passed by the Court of learned Sub Judge, Amritsar, which decree was upheld right upto the High Court and by virtue of that decree, the predecessors of the plaintiffs were to become the owners of the property because their reversionary rights were protected. The Counsel submitted that in view of that decree, Uttam Singh could not execute any Will in favour of Saroop Kaur, Nando or Deso. The Counsel further submitted that in this case, the provisions of Section 14(2) of the Act will come into play which lays down that nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a Will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, Will or other instrument or the decree, order or award prescribe a restricted estate in such property. The Counsel further submitted that as per the Will dated 26.12.1940, the rights, if any, was vested in Saroop Kaur, Nando or Deso, for the first time and this right was not pre-existing right in the estate held by Uttam Singh for the benefit of Karam Singh and Lachhman Singh and their family members, therefore, both the Courts have committed an illegality in dismissing the suit of the plaintiffs.

I have considered all the submission of the Counsel for the appellants with the assistance of the case law, which was referred to, by her and which I will discuss in the later portion of this judgment, but at this juncture, I can only say that the contentions of the Counsel for the appellants are devoid of any merit and I am inclined to agree with the reasons advanced by the Courts below which have rightly dismissed the suit of the plaintiffs-appellants.

The position under the customary law of which the parties were governed before coming into the force of the Act, was that the property in the hands of the land holder is for the benefit of the reversioners because Natha Singh and Wasava Singh had pre-deceased their father Uttam Singh. This was the reason that the disposition made by Uttam Singh in favour of Saroop Kaur, Nando and Deso was held to be not binding qua the rights of the reversioners by virtue of the decree dated 18.12.1941 in spite of the Will dated 26.12.1940. But the fate of this case has totally changed with the coming into force of the Act. In this case, I am of the opinion the Sub-section (2) of Section 14 of the Act will not come into play. Rather Section 14(1) of the Act will come into play and by coming into force of the Act, the limited right of Saroop Kaur was enlarged and therefore, she was competent to execute a gift as well as a Will in favour of the defendants. Section 14(1) of the Act lays down that any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. According to the Explanation added to Section 14(1) of the Act property includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or as a partition, or in lieu of arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after the marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

It is the admitted case of the plaintiff that Uttam Singh, who executed the Will dated 26.12.1940 died on 29.12.1940. This very Will was challenged by Karam Singh and Lachhman Singh and the decree was obtained on 18.12.1941. When the Act came into force, Saroop Kaur was possessing the property in dispute under a right in her favour and moreover, she being the widow of the pre-deceased son of Uttam Singh, had the right of residence in the estate of her father-in-law Uttam Singh. Section 14(1) of the Act has to be read as a proviso or exception to Sub-section (1) of the said section and its operation must be confined to cases where the property is acquired for the first time as a grant without any pre-existing right. If the female had an existing interest in the property, the interposition of any instrument will not affect the operation of Sub-section (1) of Section 14 of the Act and the property will be held by the female as her absolute property. In this regard reference can be made to M. Shanmugha Udayar Vs. Sivanandam and Others, , where it was held as follows :

"In order to invoke the application of Sub-section (2), it is necessary to satisfy the essential condition that the instrument which limits or restricts the estate should itself be the source of foundation of the female''s title to the property. If she had an existing interest in the property, the inter-position of any instrument will not affect the operation of Sub-section (1). The instrument may be a deed of partition but if the pre-existing right was there, Sub-section (2) cannot have the effect of taking the property out of the coverage of Sub-section (1). In any such case the mere fact that the instrument provides that the female Hindu is to have a limited estate or there is a restriction on her power of alienation or that the property will on her death revert to the next reversions, will not take the case out of the purview of Sub-section (1). Such terms are merely relegation of the incidents of Hindu Law application to limited estate. When specific property is allotted to a widow in lieu of her claim for maintenance under an instrument which prescribes a restricted estate, the acquisition of property by her is only by virtue of a pre-existing right. Such an acquisition would not be within the ambit of Sub-section (2) even if the instrument allotting the property prescribes a restricted estate in the property. Sub-section (2) must be read only as proviso or exception to Sub-section (1) of Section 14 and its operation must be confined to cases where property is acquired for the first time as a grant without any pre-existing right under instrument, the terms of which prescribe a restricted estate in the property."

Another citation, which can be quoted with approval is Seth Badri Prasad Vs. Srimati Kanso Devi, , which has also been referred by the learned Appellate Court in the judgment.

Faced with this difficulty, the Counsel for the appellants submitted that the defendants have not pleaded any custom so as to show that Saroop Kaur had a preexisting right of maintenance or residence in the estate held by her father-in-law Uttam Singh and therefore, the defendants cannot take the benefit of the provisions of Section 14(1) of the Act.

I am not inclined to subscribe to the argument of the Counsel for the appellants for the reason that it is the case of the plaintiffs themselves in the plaint that the parties are Jats and they were governed by custom. That was the reason that earlier a declaratory decree was granted in favour of Karam Singh and Lachhman Singh, whose heirs are the plaintiffs, against Uttam Singh. Once Saroop Kaur becomes the full-ledged owner of the property, she is competent to make a valid gift or Will. Therefore, the gift deed, Ex. D-l executed by Saroop Kaur is valid. She has also executed the Will, Ex. D-2. There is no challenge to the Will and the gift. Even otherwise, had Saroop Kaur not executed the gift or the Will, defendant Nos. 1 to 4 are the preferential heirs as compared to the plaintiffs. They are 4th degree heirs of the Schedule attached with Section 8 whereas the plaintiffs do not fall in any of the categories mentioned therein.

The Counsel for the appellant relied upon Vankamamidi Venkata Subba Rao Vs. Chatlapalli Seetharamaratna Ranganayakamma, , and submitted that Saroop Kaur acquired the right for the first time under the Will of Uttam Singh and therefore, her right is not enlarged by the provisions of Section 14(2) of the Act. The Counsel submitted that the Will, Ex. P-1, exected by Uttam Singh does not indicate that he is bequeathing the property in favour of Saroop Kaur in lieu of any right of maintenance.

I do not subscribe to the argument of the Counsel for the appellant for the reason that I cannot lose sight of the fact that Saroop Kaur was the daughter-in-law of Uttam Singh. Both under the customary law and under the Hindu Law, a daughter-in-law has the right of maintenance against her father-in-law. In the cited judgment, the female holder had admitted in the decree that she had acquired a limited right for the first time under the compromise decree. In the present case, there is no such inclination.

The Counsel then relied upon a Full Bench judgment of this Court reported in Jaswant Kaur v. Major Harpal Singh (1977) 79 PLR 523, and submitted that the intention of the testator Uttam Singh was that he wanted to create a restricted estate in favour of Saroop Kaur and this restriction was created by the Will, therefore, the rights of Saroop Kaur shall not be enlarged.

In the opinion of this Court, this judgment goes against the appellants. The Hon''ble Full Bench was pleased to hold that if a female had a pre-existing right in the property, in such a situation, Section 14(1) will come into play. Had Saroop Kaur been not the daughter-in-law of Uttam Singh, the position would have been different. Even in the Will, there is a mention by the testator Uttam Singh that after his death, Saroop Kaur will realise the produce of the land and she will also be entitled to residence. Meaning thereby, that her right of maintenance and residence has been recognised. The only restriction, which was imposed upon was that she could not sell or mortgage the property and after the death of Saroop Kaur, this property will go to Nando and Deso.

Counsel for the appellant also placed reliance upon Himi (Smt) and Another Vs. Hira Devi (Smt) and Others, . The point in this case has only been reiterated which I have discussed above. If a female Hindu acquired any interest in lieu of maintenance or by virtue of any pre-existing right, in such a situation Section 14(1) of the Act shall not apply. If such a female Hindu acquired the right for the first time under a consent decree or a Will etc. then, the terms of the decree or Will shall operate and those terms make her a limited owner, she will get only that status by virtue of the provisions of Section 14(2) of the Act.

Still, reliance was placed on Badri Pershad''s case (supra).

I am not inclined to follow this authority for the reasons which I do not want to repeat again and again. There is a conflict between the decree and the operation of the law. The former has to yield to the law. Summing up, it can be held that in this case Section 14(1) of the Act will come into play and by virtue of that Saroop Kaur became the absolute owner of the property and she was competent to handle it in any manner she like. The decree obtained by the fore-fathers of the plaintiffs had become meaningless by virtue of the coming into force of the Act and by virtue of the non-application of Section 14(2) of the Act.

Resultantly, this Court is of the considered opinion that the Courts have rightly non-suited the plaintiffs and there is no merit in this appeal.