Jagdev Singh and others vs Smt. Chand Kaur and others

P.C. Pandit, J.—This is a plaintiff''s second appeal against the decision of the learned Additional District Judge, Patiala, reversing on appeal the order of the trial court decreeing their suit.

The following short pedigree table will be helpful in understanding the facts of this case :-

Jagdev Singh and his two brothers, who are minors, brought a suit under the gurdianship of their mother Smt. Kirpal Kaur, against Smt. Chand Kaur and Kartar Singh etc. defendants 1 and 2, for possession of land measuring 208 Kanals 4 Marias situate in village Akalgarh; district Patiala. Their allegations were that they were the owners of the land, which they had inherited from their father, Udham Singh. They were in possession of the same through tenants and on 15th of May 1963 it had been leased out to Kartar Singh etc., defendant No. 2. In the Jamabandi papers, however, Smt. Chand Kaur, defendant No. 1''s name bad erroneously been recorded as a tenant-at-will. Taking advantage of this entry, she brought a suit for possession u/s 9 of the Specific Relief Act against defendant No. 2 and some other persons and obtained a decree for possession of the land on 13th September 1964. The plaintiffs were not made a party to the suit and their rights were, consequently, not affected by that litigation. On the basis of this decree, defendant No. 1 had taken possession of the land and that necessitated the filing of the present suit.

The suit was contested by defendant No. 1 alone, who pleaded, inter alia, that she had been in possession of the land in dispute for the last 15/16 years through her tenants in lieu of maintenance, being the grand-mother of the plaintiffs. She admitted having filed a suit u/s 9 of the Specific Relief Act, since her possession had been disturbed. It was further averred by her that by virtue of section 14 of the Hindu Succession Act, she had become full owner of the land in question.

On the pleadings of the parties, a number of issues were framed, but in the present appeal we are concerned only with one question, namely, whether she had become full owner of the land in dispute under the provisions of section 14 of the Hindu Succession Act or not, because this was the only point which was argued by the Learned Counsel for the appellants before me. On this point, the trial court observed that the land was originally owned by Udham Singh, father of the plaintiffs, who had died 16/17 years prior to the coming into force of the Hindu Succession Act. The plaintiffs, being the sons of Udham Singh, were entitled to succeed to his property. They were; therefore, the owners of the land in dispute. According to the Jamabandi entries, however, the name of defendant No. 1 had been recorded as a tenant in the column of cultivation. In the column for rent, it was mentioned that she was not paying anything, because she was the grandmother of the owners. During the consolidation proceedings that took place in the village, in the mutation of re-allotment when it was mentioned that defendant No. 1 was in possession of the land in dispute, in that entry the words ''in lieu of maintenance'' were also recorded. This entry was based on a resolution dated 3rd June 1960 passed by the advisory committee of the village regarding consolidation and which had been signed by Bhagat Singh, Mukhtar of the plaintiffs. According to the trial Judge, the plaintiffs were admittedly minor at that time and their Mukhtar, Bhagat Singh, had no authority to create any charge of maintenance upon their property. The consolidation authorities could not create any rights in favour of defendant No. 1, who was, therefore, not proved to be in possession of the land in lieu of maintenance. She had remained in illegal possession of the land, taking advantage of the minorty of the plaintiffs. Her possession, therefore, could not ripen into full ownership by coming into force of the Hindu Succession Act, 1956. Defendant No. 1. when examined on commission, had stated that she had become owner of the land by succession to Udham Singh and did not get it in lieu of maintenance. On these findings, the plaintiffs'' suit was decreed.

When the matter went in appeal before the learned Additional District Judge, he came to the conclusion that in the Jamabandi for the year 1952-53, defendant No. 1, was shown in possession of the disputed land in lieu of maintenance on account of her being the grand-mother of the plaintiffs who were the owners. To the same effect were the entries in the subsequent Jamabandis. According to the copy of the resolution, which was recorded during the consolidation proceedings, the land was allotted to defendant No. (sic) in lieu of maintenance. This resolution was duly signed and attested by Bhagat Singh, Mukhtar of the plaintiffs. Under these circumstances, defending No. 1 was in possession of the land in question in lieu of maintenance at the time when the Hindu Succession Act came into force on 17th June 195b. By virtue of the provisions of section 14 of that Act, she then became full owner of the said land. The stand taken by defendant No. 1, when she was examined on commission, that she had succeeded to the property as an heir of her son Udham Singh and had never claimed that she was in possession of the same in lieu of maintenance, could not, according to the learned Judge, alter the real nature of her possession. He, consequently, reversed the finding of the trial court on this point and dismissed the plaintiff''s suit.

It is clear from the statement of Bhagat Singh, P.W. 1, who was the Mukhtar of the plaintiffs, that they had got 5,000 bighas of land by inheritance from their father, Udham Singh. It was only the land measuring 208 Kanals 4 Marlas in village Akalgarh about which there was the present dispute. There is no manner of doubt that in the Jamabandi entries of 1952-53 and 1956-57, defendant No. 1 was recorded in possession of this land in lieu of maintenance on account of being the grand-mother of the plaintiffs who were the owners of the said land and she was not paying any rent or Batai to them. This is a finding of fact given by the learned Additional District Judge based on evidence and the same is, consequently, binding in second appeal, when the same is not shown to be vitiated by any error of law. This property was, therefore, indisputably possessed by defendant No. 1 when the Hindu Succession Act came into force. She would become its full owner by virtue of the provisions of section 14 of the said Act, unless of course it was shown that she was in illegal possession being not entitled to any maintenance under the law.

The argument raised by the Learned Counsel for the appellants was that under custom she could not succeed to this property on the death of Udham Singh, in the presence of the plaintiffs who were his sons. It was further contended by him that she, being the grand-mother, was under custom not even entitled to any maintenance. Out of the estate of Udham Singh. Thus, according to the Learned Counsel, she was in illegal possession from the very start and, therefore, could not derive any benefit from the provisions of section 14 of the Hindu Succession Act.

In my view, there is no merit in the contentions, raised by the Learned Counsel. In the first place, it was never pleaded by the plaintiffs, that under custom, defendant No. 1 was not entitled to any maintenance. Her case in the written statement was that she was in possession of the land in lieu of maintenance being the grand-mother of the plaintiffs. It is pertinent to mention that the plaintiffs never put in a replication to the effect that defendant No. 1 was not entitled under custom to any right of maintenance. If they had taken up this plea, a specific issue on this point would have been struck and then evidence could have been led by her to show that either there was a general custom or a special custom prevailing in Patiala district or even a family custom to the effect that a grand mother was entitled to maintenance against her grand-sons out of the estate left by her son. It is also noteworthy that this point was not even taken in the grounds of appeal filed in this Court Again, this point was not argued even in the courts below. Under these circumstances, they cannot be permitted to urge the same, especially when it involves determination of a question of custom which can only be settled by production of relevant evidence on the point. Secondly, it cannot be disputed that after the death of her husband, Bachan Singh, defendant No. 1 was entitled to maintenance from her son, Udham Singh, the father of the plaintiffs. On the death of Udham Singh, when the plaintiffs had succeeded to his estate, defendant No. 1 could not be deprived of her maintenance and if in lieu of that, she was in possession of a very small part of his entire estate, it could not be said that she was in illegal possession of the same. Thirdly, even assuming what the Learned Counsel for the appellants urged that the custom on the precise question as to whether a grand-mother was entitled to maintenance against her grand-sons, was silent, indisputably in such a case the parties have to fall back upon their personal law for guidance. It has been repeatedly held that among parties ostensibly governed by customary law, if on a particular matter, no definite rule of custom is proved to exist, the parties are entitled to fall back on their personal law. If the personal law also does not contain any definite rule applicable to the case, it must be decided according to justice equity and good conscience. (See in this connection AIR 1937 742 (Lahore) , decided by Tek Chand and Abdul Rashid, JJ.). Under Hindu Law, there is no doubt that all the widows of the family are entitled to maintenance.

It may be mentioned that the Learned Counsel for the appellants also argued that in her evidence on commission defendant No. 1 had not taken up the position that she had gone into possession of the land in lieu of maintenance; on the other hand, her case was that she had succeeded to Udham Singh. The plaintiffs could not derive any benefit from this statement, because firstly, in the written statement she had definitely taken the stand that she was in possession of the land in lien of maintenance being the grand-mother. She had also stated that she was the owner of the land and that she would, undoubtedly be, because the written statement was filed after the coming into force of the Hindu Succession Act and by virtue of the provisions of section 14 thereof, she had become full owner. Secondly if during the trial of the suit she, Who was an old lady of more than 70 years of age, had stated that she had not got the property in lieu of maintenance, but had succeeded to Udham Singh as an heir, it would not, as rightly pointed out by the learned Additional District Judge, change the real nature of her possession. She might well have thought that she had succeeded to a part of the property of her son as owner. The fact, however, remains that she never denied her possession over the land in question or admitted that she was in illegal possession thereof.

Before parting with the case, I would like to make it clear that it was never the position of the plaintiffs that the property in dispute or the other property, which they had inherited from their father, Udham Singh, was all his self acquired property and had not come from their grand-father Bachan Singh.

In view of what I have said above this appeal fails and is dismissed. In the circumstances of this case, however, I will leave the parties to bear their own costs in this Court as well.