Jagir Singh vs Smt. Resham kaur and others

Madan Mohan Punchhi, J.—This second appeal is by the unsuccessful Plaintiff whose suit stands dismissed by the concurrnt judgments and decrees of the Courts below. It has arisen in the following circumstances:

The property in dispute was owned by one Buta Singh. On his demise, his estate was mutated in the name of his widow Resham Kaur, Defendant Respondent No. 1, and his son Jagar Singh, platiff-Appellant, in equal shares. The Plaintiff-Appellant was the son of Buta Singh from another wife. His step-mother sharing the estate was not acceptable to him He consequently filed a suit for possession against him step mother. Despite contest, a settlement was effe"ted, vide statements of parties Ex P-l and P-3 whereupon a judgment in accondance therewith was pronounced vide Ex P 7, on 22nd August, 1943. As a result thereof Resham Kaur was able to retain 93 Kanals of agricultural land and the balance was retrieved from h r by her step son. The land thus kept for Resham Kaur was couched in the shell of a life estate a situation well known in the customary law of Punjab, whereunder a widow cannot tell or otherwise transfer her life estate execpt(sic) for legal necessity and for consideration. Somehow, the settlement effected between the parties was not lasting and it gave rise to another spree of litigation Then again, vide document Exhibit P-l, dated 28th April, 1944, some more agricultural land was given to her on the same terms and in recognition of the pre-existing rights. She remained in possession of her life-estate when the Hindu Succession Acot, 1956 (hereinafter referred to as the Act) came into operation and considering herself to be the absolute owner of the property in her possession, she trans ferred the said property in favour of the contesting Respondents Nos 2 and 3, vide registered sale-deed Exhibit D-l dated 13th february, 1959. This gave rise to the suit by her step-son jagir(sic) Singh Plaintiff claiming a declaration to the effect that the sale effected by Resham Kaur in favour of the contesting Defendant-Respondents Nos. 2 and 3 was fictitious, collusive and without consideration and he was entitled to take possession of that land without making any payment to the vendees, after the death of Resham Kaur. The suit was contested by the vendees, Defendant Respondents Nos. 2 and 3, alone. On the pleadings of the parties the following Issues were framed:

Whether Resham Kaur, Defendant No. 1, was in possession of the suit land in lieu of her maintenance charge only and was not competent to alienate the same ?

If issue No. 1 is affirmed, whether Defendants transferees are protected u/s 41 of the Transfer of Property Act ?

Whether the land described In the plaint has been allotted in lieu of the previous land possessed by Defendant No. 1 during the consolidation proceedings?

Whether the Defendant No. 1 is estopped from resisting the suit ? If so, to what effect and extent ?

Relief.

The trial Court decided Issues Nos. 1 and 4 against the Plaintiff. Issue No. 3 was decided in his favour. However, no finding was recorded on issue No. 2. The trial Court dismissed the suit of Plaintiff. On appeal by the Plaintiff Appellant, the lower appellate Court maintained the judgment and decree of the trial Court while answering the issue in the same manner as was done by the trial Court Now, the Plaintiff-Appellant is in second appeal before this Court.

The learned Counsel for the Appellant contended that, to the estate of Resham Kaur, Section 14(2) of the Act was applicable instead of Section 14(1) of the Act which was wrongly applied by the Courts below. He contended that under the customary law, on the death of a mate, his son alone succeeds to his estate and not the widow in the presence of the son He maintains that the mutation in favour of Resham Kaur was rightly challenged by Jagir Singh Appellant to out her from the entire estate of Buta Singh. Whatever was given over to Resham Kaur in lleu of maintenance was by virtue of the instruments indicated hereinbefore, which would keep confirmed the estate of Resham Kaur limited in the sense of Section 14(2) of the Act. The argument indeed, is ingenious. It loses sight of the fact that even if Resham Kaur, in the presence of the step son, was not entitled to inherit the estate as such, she was otherwise entitled to maintenance against the estate of Buta Singh, being his widow. Such right was a pre-existing one and in recognition or assertion thereof she had obtained mutation in her favour to the extent of one-half of the estate. The subsequent settlement effected between her and the Plaintiff Appellant which is embodied in statements, Exhibits P 2 and P 3, judgment inter-parties Exhibit P 7, and compromise Exhibit P. 1, is in recognition of a pre existing right of maintenance as a charge over the estate.Their Lordships of the Supreme Court in Seth Badri Prasad Vs. Srimati Kanso Devi, have laid down the guidelines to demarcate the operative sphere of Sub-sections (l) and (2) of Section 14 of the Act. The law was settled thus:

While determining whether a particular case is governed by subjection (1) of Sub-section (2) of Section 14, the section has to be read as a whole and it would depend on the facts of each case whether the same is covered by Sub-section (1) or (2). The word '' possessed '' in Sub-section (1) has been used in its widest connotation and it may be either actual or constructive or in any form recognised by law. In the context in which it has been used in Section 14 it means the estate of owning or having in one''s hand or power......

The word '' acquired '' in Sub-section (1) has also to be given the widest possible meaning. This would be so because of the language of the Explanation which makes Sub-section (1) applicable to acquisition of property in manners mentioned therein. Sub-section (2) is more in the nature of a proviso or an exception to Sub-Section 1) It comes 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 property.

The aforesaid authority of the Supreme Court came handy this Court for applying to samewhat a similar case as the instant one i.e. Nand Singh deceased represented by his L. Rs v. Nachhotar Singh and others, I.L R. (1976) 1 P&H. 394 wherein a pre-existing right of a step-mother was recognized and preserved in the maintenance of the estate in her possession to ripen into full ownership on coming the Act into force The latter judgment of this Court met with approval in a Full Bench decision in Jaswant Kaur v. Major Harpal singh and Ors. (1979) 79 P.L.R. 523. The dividing line between the two Sub-sections of Section 14 of the Act is crystal clear If, on account of a pre existing right, a female settles down her estate by virtue of an instrument, deed or compromise, her status to that estate does not get diminished alltogether(sic) and reconstructed by the instrument. Prior to the instrument and even thereafter her estate would be kept governed by Sub-section (1) of Section 14 of the Act, But, if a female obtains an estate In property in which she has no pre existing right and it is by virtue of an instrument, deed or compromise that such a light is conferred upon her, then in prospective her estate has to be governed by Sub-section (2) of Section 14 of the Act. These principles are fully applicable to the facts of the present case. Other judgments cited at the Bar, rendered in Smt Sharbati Devi v. Pt. Hira Lal and another A. I. R. 1964 P&H. 114, Rama Vanti v. Bel Kaur (1978)70 P.L.R. 90, Ram Sarup and ethers v. Smt. Toti and others, (1972174 P-L.R. 971, and Uda Chand and Ors. v. Mst Raja (1956)68 P.L.R. 1982, are also in the same direction and need not be fully elaborated here.

As a result, this appeals fails and is dismissed with no order as to costs.