Mst. Chand Kaur vs Sucha Singh and another

D.K. Mahajan, J.—The appeal is directed against the concurrent decisions of the Courts below, dismissing the plaintiff''s suit.

In order to appreciate the facts giving rise to this appeal, it will be of some advantage to set out the genealogical table of the parties:

Kartara and Dasaundhi were occupancy tenants of the suit land. On Kartara''s death, his occupancy tenancy was mutated in the name of his mother Mst. Bhishni. The land under the occupancy tenancy of Dasaundhi on his death also ultimately came into possession of Mst. Bishni and before she died she was recorded, in the revenue papers as an occupancy tenant of Kartara and Dasaundhi''s land. She died in the year 1954-55, i.e. before the Hindu Succession Act, 1956, came into force. But in the meantime, the Pepsu Occupancy Tenants (Vesting of Proprietary Rights) Act, 1954 (Act No 18 of 1954) came into force and by virtue of that Act all occupancy tenants become full proprietors of the land held by them as occupancy tenants. This Act repealed the Patiala and East Punjab States Union Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953 (President''s Act 3 of 1953). In fact Section 18 of the 1954 Act makes that Act applicable as from the President''s Act, i.e., from the year 1953. Thus, Mst. Bishni became the full owner of the land in 1953. See in this connection Sukh Ram v. Lekh Ram ILR 13 (1960) P&H. 47, wherein it was held that "there is no doubt that when the widow entered into enjoyment of the occupancy lights in succession to her deceased husband, she only enjoyed a widow''s estate, but the effect of her own conversion of these occupancy rights into a full ownership in accordance with the provisions of the Punjab Occupancy Tenants (testing of Proprietary Rights) Act, 1953, is that she became the absolute owner of the land". These observations will apply to the case of a mother and Mst. Bishni became the full owner of the land by reason of Act No. 18 of 1954. That being so, her own daughter would be a preferential heir to her, irrespective of the fact whether Hindu Succession Act was in the held or not Both under costom as well as under Hindu law, a daughter is a preferential heir to her mother''s estate.

The Learned Counsel for the respondents raised a preliminary objection that the appeal has abated. The objection is that Sucha Singh respondent died in 1965 and Dhani Singh on 31st of December, 1969. No application has been made with regard to the impleading of the legal representatives of Sucha Singh. It is stated that it is not necessary, because Sucha Singn died without leaving any heir, the only heir being Dhani Singh who was already a respondent in this appeal. With regard to the death of Dhani Singh it is stated that an application was made on 31st of March, 1970, thus within limitation, but only one of the daughters of Dhani Singh has been impleaded, whereas Dhani Singh is reported to have left behind four daughters. In view of the Supreme Court decision in Ram Das and Another Vs. Deputy Director of Consolidation, Balia and Others, the objection as to abatement is not tenable. The remaining daughters of Dhani Singh can be impleaded even now. As Dhani Singh has willed his entire property to Mst. Sita, it is not necessary to implead the remaining daughters.

Mr. Surinder Sirup contended that section 9 of the Punjab Tenancy Act, which as amended in the year 1939, whereby widow was made one of the heirs in the line of succession to occupancy tenants, has no application to Pepsu. His contention is that the Amending Act of 1939 was not made applicable to the Puajab Tenancy Act as applicable to Pepsu at the time when Kartara died. In a similar situation in Gajjan Singh v. Zorawar Singh ILR 1952 P&H 76, Chopra J. held that the mother having been allowed to succeed as an occupancy tenant, her status remain-ed that of an occupancy tenant and she was entitled to the benefits of enactments favouring the occupancy tenants It is also significant that neither any heir to Kartara disputed her succession to the occupancy tenancy nor the landlord of the land. Therefore, as a mother she did succeed to the occupancy tenancy rights held by Kartara and being in possession of those rights, she became an absolute owner, thereof as none of the rightful heirs challenged her right to succeed to them. In the present appeal, neither the landlord nor the true heirs if any of the occupancy rights have contested her claim, which has devolved on her daughters. Therefore, as against the aforesaid two categories of persons, she is entitled to a decree for possession.

For the reasons recorded above, I allow the appeal, set aside the judgments and decrees of the Courts below and decree the plaintiff''s suit.

The only matter which remains to be adverted to is the redemption of the mortgage on the land in dispute The respondents did redeem the mortgage and, therefore, the plaintiff will only be entitled to take possession of the land on payment of the mortgage money, which has been determined in the present litigation at Rs. 1000/-. Thus, the decree in favour of the plaintiff will be for possession subject to payment of Rs. 1,000/-. In the circumstances of the case, there will be no order as to costs.