Harwant Singh (dead) through LRs. vs Beant Kaur (dead)

R.L. Anand, J.—This is defendants'' appeal and has been directed against the judgment and decree dated 19.3.1984 passed by the Court of Additional District Judge, Faridkot, who affirmed the judgment and decree dated 13.11.1982 passed by the Court of Additional Senior Sub Judge, Moga, who decreed the suit of the plaintiff Smt. Beant Kaur (deceased), now represented by her legal representatives for possession of half share of the suit land as its owner.

The brief facts of the case are that one Waryam Singh was the owner of the suit land and after his death the land had descended to his son Hazura Singh. On the death of Hazura Singh the land devolved upon his mother Smt. Dani, who gifted the property to her daughter Smt. Rattni, i.e., the sister of Hazura Singh. The collaterals of Hazura Singh filed a suit for cancellation of the gift executed by Smt. Dani in favour of her daughter Smt. Rattni on the ground that Smt. Dani had no right to make a gift as she was holding the property as life estate. The collaterals also contended that the suit property was ancestral qua them in the hands of Hazura Singh. In the trial Court the suit of the reversioners was dismissal and the property was found to be non ancestral and they were not held to be the collaterals to challenge the alienation by a limited owner/widow, i.e., Smt. Dani. The collaterals/reversioners filed an appeal in the Court of District Judge, who held that the reversioners, who had challenged the alienation, were collaterals of Hazura Singh of 6th degree and that even the land was non ancestral. Finally the alienation was held to be not binding on the reversionary rights of the plaintiff as Smt. Rattni, who was the sister of original owner Hazura Singh was discarded in the matter of succession even in case of selfacquired property and 6th degree collaterals were preferred even in the nonancestral property on the ground that daughter could succeed to selfacquired property in preference to 6th degree collaterals, but the sister, i.e., Smt. Rattni, could not exclude the collaterals even in the selfacquired property and as a result the learned District Judge accepted the appeal of the reversioners/collaterals and held that the gift would be void after the death or remarriage of Dani. Smt. Rattni filed a regular second appeal in the High Court, which was also dismissed in the year 1948. Then Smt. Rattni filed an appeal in the Hon''ble Supreme Court. There a compromise took place and the Hon''ble Supreme Court passed an order that the reversioners would get possession of half of the property immediately through legal proceedings and it as further held on the basis of the compromise that half share of the property will remain with Smt. Rattni the alienee and that would be enjoyed by her during her lifetime and on her death that half share would go to the then reversioners of Hazura Singh. Meanwhile, Hindu Succession Act came into force and Smt. Rattni was recorded as the owner of the said property. The defendantsreversioners took possession of half share of the suit land in execution on 12.1.1960. The defendants have allegedly taken illegal possession of the land and as a result, Smt. Beant Kaur daughter of Smt. Rattni filed a suit for possession alleging that she (Smt. Rattni) was the owner of the suit land and she died about two years back leaving the plaintiff as her sole heir, being her daughter, as well as the legatee under the will. The plaintiff further alleged that the defendants took illegal possession of the entire land and got sanctioned mutation of half of the land in their favour without right and without her (plaintiff''s) knowledge. The plaintiff Smt. Beant Kaur called upon the defendants to admit her title in the suit land and on their refusal to do so, she has filed the suit for possession of the suit land. The plaintiff also alleged that she was also in possession of the property and earlier she filed a suit for declaration but during the pendency of the suit the defendants took forcible possession and resultantly, she withdrew that suit with permission to file a fresh one on the same cause of action.

Notice of the suit was given to the defendants, who contested the suit on the plea that the plaintiff had no right to file the suit; that she is estopped by her own act and conduct to file the suit; that the suit is barred by the principles of res judicata in view of the judgment dated 22.3.1954 passed by the Hon''ble Supreme Court. It was pleaded by the defendants that Smt. Rattni was not the owner of the entire land at the time of her death. They denied that the plaintiff is the daughter of Smt. Rattni. The defendants also denied the execution and validity of the will executed by Smt. Rattni in favour of Smt. Beant Kaur. Smt. Rattni had no right to execute the will. The defendants had taken the possession of the suit land in execution of the decree.

The plaintiff filed rejoinder to the written statement in which she reiterated her allegations made in the plaint by denying those of the written statement.

On the above pleadings of the parties, the learned trial Court framed the following issues :

Whether Rattni executed a valid will dated 12.5.1976 in favour of the plaintiff ? If so, its effect ? OPP.

Whether the plaintiff has no locus standi to file the suit ? OPD

Whether the suit is barred by principles of res judicata ? OPD.

Whether the plaintiff is estopped by her act and conduct to file the suit ? OPD.

Whether the suit is in time ? OPP.

Relief.

Later on following additional issues were also framed by the trial Court :

5A. Whether Beant Kaur is the daughter of Rattni ?

5B. Whether the plaintiff is the owner of the land in dispute ? If so, to what effect ? OPP.

5C. What is the effect the previous litigation between the parties ? OPD.

The parties led oral and documentary evidence in support of their case and ultimately it was decided by the trial Court that Smt. Beant Kaur has become the owner of the property on the death of her mother Smt. Rattni, both as a natural heir and also under the will and by rejecting all the defences taken up by the defendants, the suit of the plaintiff was decreed. The defendants filed first appeal in the Court of Additional District Judge, Faridkot, who vide the impugned judgment and decree dated 19.3.1984 dismissed the appeal. Still aggrieved by the judgments and decrees of the Courts below, the present appeal by the defendants.

I have heard Shri Sanjay Majithia, Advocate, appearing on behalf of the appellants, and Shri Sarjit Singh, Senior Advocate, appearing on behalf of the respondents, and with their assistance have gone through the record of this case.

Learned counsel for the appellants submitted that both the Courts below adopted an erroneous approach to the compromise dated 22.3.1954 arrived at between the parties before the Hon''ble Supreme Court. The parties are bound by this compromise and they are bound to extend respect to this compromise. Mr. Sanjay Majithia, learned counsel for the appellants, further submitted that this compromise operates as an estoppel upon the plaintiff and as per interpretation of this compromise half of the property will revert to the reversioners of Hazura Singh, i.e., defendants of the present suit, who are entitled to succeed to the entire property of Hazura Singh. Smt. Rattni got only the limited interest and she was to enjoy half of the property of the earlier suit during her life time and as such she was not competent to execute any will in favour of Smt. Beant Kaur. It was also submitted by Shri Majithia that when compromise was effected in the year 1954 before the Hon''ble Supreme Court, at that time Hindu Succession Act was not on the statute book and the rights of the parties were to be governed as per compromise incorporated in the judgment of the Supreme Court (Exhibit D8).

On the contrary, it was submitted by the learned counsel for the respondents that both the Courts below rightly decreed the suit of the plaintiffrespondents. The Courts below have correctly interpreted the import of the judgment (Exhibit D8) and rightly decreed the suit of Smt. Beant Kaur.

After applying my mind to the respective contentions of the parties, I am of the considered view that the suit of Smt. Beant Kaur has been rightly decreed by the Courts below, leaving no scope for interference in the judgments. The submissions, which have been raised by the learned counsel for the appellants, are totally devoid of any merit. It is the common case of the parties that in the earlier suit, which was dismissed by the trial Court, the decision went in favour of Smt. Rattni. The appeal against the decision of the trial Court was decided in favour of the reversioners/collaterals and against Smt. Rattni. Even the High Court decided the earlier suit against Smt. Rattni, but the Hon''ble Supreme Court in apppeal No. 140 of 1952, titled Smt. Rattni v. Harbans Singh and othersised the matter between the parties. For the sake of convenience I would like to incorporate the operative portion of the judgment :

"1. That the plaintiffs and defendants Nos. 3 to 7 shall be entitled to recover possession of half of the share of the property in suit and shall be entitled to have the said property partitioned by appropriate proceedings.

That the other half share of the property shall remain with Mrs. Rattni appellant herein to be enjoyed by her during the term of her natural life and on her death her half share shall go to the then reversioners of Hazura Singh.

That the parties herein shall bear their own costs throughout.

Dated : 22nd March, 1954."

Here we are concerned with the other half share of the property which was to remain with Smt. Rattni, the mother of the present plaintiffsrespondents and that half share shall be enjoyed by her during her lifetime and on her death, that half share shall too go to the then reversioners of Hazura Singh. I am supposed to interpret the words "then reversioners of Hazura Singh". The above compromise clearly indicates that, whosoever, would be the heir at the time of the death of Smt. Rattni, would inherit that half share which was given to Smt. Rattni, as per compromise. If the interpretation of Shri Sanjay Majithia given to this compromise (Exhibit D8) is to be accepted, then the Hon''ble Supreme Court could say that the half share of Smt. Rattni would revert back to the reversioners of Hazura Singh. No doubt in the year 1954 the Hindu Succession Act was not brought on the statute book and for that reason the words "the then reversioners of Hazura Singh" have been incorporated. We cannot lose sight of the fact that this compromise shall operate prospectively and not from the back date. The Hindu Succession Act came into force in the year 1956 and with the operation of Section 14 of the said Act Smt. Rattni became the fulfledged owner and hence she was competent to transfer onehalf share either by way of will or sale. Beant Kaur is none else but the sister''s daughter of Hazura Singh. Smt. Beant Kaur plaintiff was otherwise entitled to inherit the property of her mother''s brother, in preference to the defendants. Thus in both ways Smt. Beant Kaur is a preferential heir than that of the defendants. Learned counsel for the respondents has referred to Giani Ram and others v. Ramji Lal, AIR 1969 SC 1144, wherein it was held:

"Under the customary law in force in the Punjab a declaratory decree obtained by the reversionary heir in an action to set aside the alienation of ancestral property endured in favour of all persons who ultimately took the estate on the death of the alienor. The decree obtained by a competent reversioner did not make the alienation a nullity, it removed the obstacle to the right of the reversioner entitled to succeed when the succession opened and restored the property alienated to the estate of the alienor."

It was further held that :

"After the enactment of the Hindu Succession Act the estate devolved, by virtue of Sections 2 and 4(1) of the Act, upon the three sons, the widow and the two daughters and it could not be said that because in the year 1920 the wife and the daughters were incompetent to challenge the alienation of ancestral property, they could not inherit his estate when the succession opened after that Act came into force."

This authority clinches the issue before me and fully meets the submissions raised by Mr. Majithia. In the cited case a Hindu Jat of Hissar district alienated a share in ancestral land without legal necessity in 1916. In 1920 his eldest son sued and obtained a declaratory decree that the sale was ineffective against his reversionary rights. The alienor died in 1959 leaving behind him, his widow, three sons and two daughters. It was held that the three sons, the widow and the two daughters would inherit the property and it is not a valid defence that because in the year 1920 the widow and the daughters were incompetent to challenge the alienation of ancestral property, therefore, they could not inherit his estate when the succession opened after that Act came into force. Relief was granted to the widow and the daughters on the ground that when the Jat died after the coming into force of the Hindu Succession Act, in the year 1959, the widow and the daughters were held to be ClassI heirs. In the present case also Smt. Rattni died in the year 1978 and we have to see as to what is the status of Smt. Rattni visavis the estate which was given to her under a compromise in order to enjoy during her life time. She became the absolute owner on account of the provisions of Section 14 of the Hindu Succession Act and she was competent to execute the will which has been rightly believed by the Courts below and otherwise too Smt. Beant Kaur was the only natural heir than that of the defendants. In both ways Smt. Beant Kaur was declared the lawful owner of the properties, who could successfully ask for the grant of possession.

It was also one of the major contentions of Mr. Majithia that parties to the compromise before the Hon''ble Supreme Court are bound by the terms of that compromise and Smt. Rattni and her heirs cannot claim the benefit of the Hindu Succession Act and the property in dispute is bound to revert to the reversioners of Hazura Singh. In support of his argument Mr. Majithia has tried to get support from the judgment (Exhibit D11) and again emphasised that the compromise arrived at between Smt. Rattni and the reversioners of Hazura Singh is bound to be given respect by the Law Courts irrespective of the fact that the provisions of the Hindu Succession Act have come into force. The argument is devoid of any merit. There cannot be any estoppel against the Law. The terms of compromise before the Hon''ble Supreme Court admit no interpretation but for the one that whosoever are the reversioners of Hazura Singh at the time of the death of Smt. Rattni would be entitled to succeed to the property. Hindu Succession Act in the year 1954 could not be contemplated and the provisions of this Act, specially those of Section 14(1), enlarge the interests of the female. With the coming into force of the Hindu Succession Act and by virtue of the provisions of Section 14(1) of the said Act Smt. Rattni became the fulfledged owner of the property which she got under the compromise and as such she was competent to alienate the same by way of will in favour of her daughter Smt. Beant Kaur plaintiff. There cannot be estoppel against the Law nor any terms of compromise can supersede the provisions of a statute which was yet to come and which provisions of the law were not even in existence in the year 1954.

The counsel Shri Majithia further submitted that the basis of the suit of the plaintiff was will and not by natural succession and in these circumstances the Court below could not make out a new case. The argument is again devoid of any merit. When the parties have led evidence in support of their case after understanding the case of each other, the basis of the relief remains an insignificant matter. Once it is held that Smt. Rattni became the owner of the property with the coming into force of the Hindu Succession Act, then Smt. Beant Kaur would otherwise inherit her property being a natural heir even if for the sake of argument it is held that Smt. Rattni did not execute a valid will.

Shri Majithia further argued that Smt. Rattni becomes a limited owner in view of Section 14(2) of the Hindu Succession Act as she was to enjoy the property during her life time as per the terms of the compromise before the Hon''ble Supreme Court (Ex. DB) and in these circumstances irrespective of the passing of the Hindu Succession Act, she could not execute the will in favour of Smt. Beant Kaur. Again the argument does not appeal to me. I have to give interpretation to the compromise incorporated in Exhibit D8. In the said compromise no restriction has been imposed with regard to the limited interests of Smt. Rattni and as such the provisions of Section 14(2) of the Hindu Succession Act do not come into play.

This case can also be viewed from another angle. Admittedly, Hazura Singh was the son of Waryam Singh and he became the last male holder on the death of his father. If all the concession is given to the appellants, still the possession of Smt. Rattni on the enforcement of the Hindu Succession Act was valid, being the daughter of Waryam Singh. During the lifetime of her father Smt. Rattni, like her mother Smt. Dani, had the right of maintenance under the custom and if in recognition of her right she was allowed to retain the possession of the property in dispute in the year 1954 by the Hon''ble Supreme Court, still with the enforcement of the Act she became fulfledged owner of the property. Since Smt. Rattni died during the year 1978 after the enforcement of this Act, at that time she was fulfledged owner of the property and was competent to bequeath the same in any manner she liked. Otherwise also Smt. Beant Kaur is ClassII heir falling under category (iv) of Hazura Singh and ClassI heir of Smt. Rattni.

Mr. Sarjit Singh, learned counsel appearing on behalf of the respondents, has relied upon an authority of the Supreme Court reported as C. Masilamni Mudaliar and others v. The Idol of Sri Swaminathaswami Swaminathaswami Thirukoli and others, AIR 1996 Supreme Court 1697 : 1996(2) RRR 161 (SC), and submitted that provisions of Sections 14(1) and 14(2) of the Hindu Succession Act have to be interpreted in such a manner so that the preexisting rights of a female should not be defeated. He submitted that Smt. Rattni when was allowed to retain the possession of the property by virtue of the compromise arrived at before the Supreme Court, she was allowed as such with full realisation that she is the daughter of Waryam Singh father of Hazura Singh. Smt. Rattni was claiming through her mother Smt. Dani, who also had the pre existing right even under the custom of maintenance during the lifetime of her husband Waryam Singh and after his death Smt. Dani still could retain the possession of the estate of her husband Waryam Singh during the lifetime of her son Hazura Singh. In this manner the preexisting rights of Smt. Dani and Rattni were there in the estate and with the enforcement of the Hindu Succession Act, those rights were enlarged. The counsel further submitted that Smt. Rattni was not acquiring the possession for the first time under the orders of the Supreme Court, rather she had preexisting right of being the daughter of her father Waryam Singh and, therefore, the provisions of Section 14(2) of the Hindu Succession Act do not come into play. I fully endorse the arguments raised by the learned counsel for the respondents, as those submissions are in conformity with the law laid down by the Hon''ble Supreme Court in Tulasamma v. V. Sesha Reddi, AIR 1977 SC 1944, and in the case law relied upon by the learned counsel for the respondents.

Shri Sanjay Majithia, Advocate, learned counsel appearing for the respondents, has relied upon a chain of authorities reported as Smt. Chinti v. Shri Harminder, 1987 PLJ 256, Lala Duni Chand v. Mr. Anar Kali, AIR 33 Privy Council 173; Mr. Harnam Kaur v. Ratna, AIR 1949(36) East Punjab 267; Amar Singh v. Sewa Ram, 1960 PLJ 537; Shrimati Banso v. Charan Singh, 1960 PLR 865; Sawan Mal v. Smt. Gita Devi, 1966 PLR 449; Mst. Taro v. Darshan Singh, AIR 1960 Punjab 145. He further invited my attention to para No. 22 of the Ratigan''s Digest, 14th Edition, page 129. With the support of the above case law and the said para of the Ratigan''s Digest, he tried to develop the argument that this case has to be viewed and decided with reference to the succession of Hazura Singh and not with regard to the succession of Smt. Rattni. I have not been able to persuade myself with the submissions raised by the learned counsel for the appellants, nor I am in a position to follow the dictum of the Hon''ble Judges as contained in the cases relied upon by Sri Majithia, learned counsel for the appellants, because from both angles the appellants have no case. If on the enforcement of the Hindu Succession Act the possession of Smt. Rattni was held to be lawful and she has become the fulfledged owner of the property, there was no difficulty on her part to treat the property as fulfledged owner. Her possession was lawful being the daughter of Waryam Singh with whom the property in dispute vested at one time. On his death it vested in Hazura Singh. As per compromise before the Hon''ble Supreme Court, the then reversionary bodies which would have been in existence at the time of the death of Smt. Rattni were to be fixed, but in the year 1956 the provisions of Hindu Succession Act came into force, making the position of Smt. Rattni very comfortable. Beant Kaur is the daughter of Smt. Rattni and as such was competent to get the property of her mother. If the successors of Hazura Singh are to be traced in the year 1978 on the death of Smt. Rattni, even then Smt. Beant Kaur is the sister''s daughter of said Hazura Singh.

The counsel Shri Majithia also submitted that the compromise which was entered into between the defendants and Smt. Rattni before the Hon''ble Supreme Court has to be interpreted irrespective of the fact that when Smt. Rattni died because the judgment of the High Court has never been set aside even by the Hon''ble Supreme Court and Smt. Rattni and her heirs are bound to give respect to the said judgment and cannot claim adversely to the compromise. In support of his contention he relied upon Sailendra Narayan Bhanja Deo v. The State of Orissa, 1956 SC 346; and Shankar Sitaram Sontakke v. Balkrishna Sitaram Sontakke, AIR 1954 SC 352. So far as the case law relied upon by the learned counsel for the appellants is concerned, there is no dispute about its proposition. In the present case the compromise arrived at between the parties even before the Supreme Court is to be given effect by the Courts below. The clients of Mr. Majithia were aware that Smt. Rattni after all is the daughter of Waryam Singh, who also at one point of time was holder of the property. No gratuitous right was being conferred on Smt. Rattni. Had her father been alive, she like her mother could look towards Waryam Singh. If in recognition of her that right she was allowed to retain the possession of half of the property, why her interest could not be allowed to be enhanced with the enforcement of the Hindu Succession Act.

The counsel Shri Majithia also submitted that the Courts below have tried to make out a new case for the plaintiffsrespondents and in support of his contention he has relied upon Shanti v. Surta and others, 1972 PLJ 623. This authority is again not helpful to him. No inconsistent case has been pleaded or made out by the successful plaintiffs. In fact the learned counsel for the appellants could not dislodge successfully the ratio of the Hon''ble Supreme Court as contained in Giani Ram and others v. Ramji Lal and others, AIR 1969 SC 1144; and that of C. Masilamni Mudaliar and others v. The Idol of Sri Swaminathaswami Swaminathaswami Thirukoli and others, AIR 1996 Supreme Court 1697.

I have seen this appeal from different angles and I am unable to disagree with the findings which have been recorded by the Courts below. Thus, I affirm the judgments and decrees of the Courts below and seeing no merit in this appeal, dismiss the same with no order as to costs.