Mst. Harmal Kaur and Another vs Smt. Kartar Kaur and Another

R.S. Sarkaria, J.—This regular second appeal by the plaintiffs is directed against the judgment and decree, dated 26-10-1962, of the Subordinate Judge 1st Class, Patiala, dismissing the plaintiffs suit, which was further confirmed in the first appeal by the Additional District Judge, Patiala, on 25-5-1963. It arises out of the following facts.

One Bishna Antal Jat of village Karn pur, Tehsil Patiala, governed by agricultural custom, died more than 41 years before the suit, in 1929 or 1930 A. D. approximately, leaving behind the suit land, measuring 102 bighas and 9 biswas, and a house situated with in the area ol village Karnpur. Daulat the only son of Bishna. bad predeceased him by about one month, leaving behind his widow Kartar Kaur, defendant Respondent 1. On Bishna''s death, ihe imitation of his landed estate was attested in favour of his daughter-in-law, Kartar Kaur defendant, on 24th Jeth 1983 B.K., (corresponding to May, 1929 A. D.) Karjai Kaur thereafter continued to be in possession and enjoyment of the estate of the deceased.

By a registered deed, dated 13-9-1961, this Kartar Kaur gifted that property to Surjan Singh. Defendant 2, son ot Amar Singh of Nanhera, Tehsil Ambala. On 17-7-1962, Harmel Kaur, wife of Kharak Singh and Mst. Wasu, wife of Pritam Singh, daughters of the last male holder Bishna instituted the suit for a declaration that the aforesaid gitt was void and would be in- effective qua the reversionary righto of the plaintiffs after the death of Kartar Kaur, Defendant 1. It was alleged that the plaintiffs were governed by agricultural custom in matters of succession. according to which Kartar Kaur was a limited owner and had no power to alienate the land by g ift, which after her death would revert to the heirs of the last male holder from whom she inherited the same.

The suit was resisted by the donee, inter alia, on the ground that by the operation of the Hindu Succession Act, Kartar Kaur donor had become absolute owner of the land, and, At such, was entitled to gift the same. The trial Court upheld this plea, and, in the result, dismissed the suit with costs. The appeal of the plaintiffs to the Additional District Judge, Patiala. was dismissed and the decree of the trial Court was confirmed. This is how the plaintiffs have come up in second appeal before this Court.

Shri Hans Raj Aggarwal, the learned counsel for the plaintiff-appellants, contends that under Punjab custom (by which the parties were governed in matters of succession at the time of the death of the last male holder, Bishna), Kartar Kaur being the widow ot sonless Daulat, who had predeceased Bishna, was not entitled to succeed to Daulat''s share, and consequently, her possession of the disputed land was no better than thai of a trespasser. It is fur-ther argued that the word "possession" used in Section 14 of the Hindu Succession Act, cannot be extended to include possession of property by a female without any title to it. According to the counsel, the result is that Section 14(1) could not he called in aid as enlarging her wrongful title into an absolute, valid title. In support of this contention, the learned counsel has cited Gurdas Dayaram Vs. Mst. Prito and Another, , and Smt. Giano Vs. Moti Ram and Others,

In the first place, as pointed out by Shri K. N. Tiwari. the learned counsel for the defendant-respondent, the contention of Shri Hans Raj Aggarwal runs completely counter to what has been pleaded in the plaint. In paragraph 3 of the plaint it was expressly pleaded that Kartar Kaur, defendant 1, was not entitled to gift the suit property, as, according to the law and custom, she was only a "limited and restricted owner" of the land with no power of alienation. In paragraph 5 of the plaint, it is further pleaded that after the death of Kartar Kaur, defendant 1, the plaintiffs would be en-titled to succeed to the property, because at the time of the attestation of the mutation in Favour ot Kartar Kaur, defendant 1, a restriction was imposed that she could enjoy this property only for her lifetime. It was nowhere pleaded by the plaintiffs that Kartar Kaur had no right to succeed under custom and that she entered into possession as a trespasser. On the contrary, it can be inferred from paragraph 1 of the plaint, that the plaintiff''s case was that she inherited this property under custom as a Ifmited owner.

Bishna was an Antal Jat. No authority has been cited at the bar that among Antal Jats, the widow of a predeceased son cannot succeed to the share of her husband. Paragraph 9 of the Battigan''s Digest of Customary Law runs as follows:-

"The widow of a sonless son who predeceased his father, is, in some tribes, permitted to succeed to his share, but the right is not universally admitted, and the onus of proving it lies on the widow who asserts it to exist."

In the instant case, the widow, Kartar Kaur, was allowed to succeed to her father-in-law, Bishna, despite the fact of her husband having predeceased Bishna. This fact far from being controverted, has been tacitly admitted in the plaint.

Even it it is assumed for the sake of argument that Kartar Kaur had no right to suc ceed under custom and she entered into possession of the property as a trespasser, then also the rule laid down in Gurdas Dayaram Vs. Mst. Prito and Another, and in Smt. Giano Vs. Moti Ram and Others, which has been recently confirmed by the Supreme Court in Eramma Vs. Verrupanna and Others, does not apply to the facts of the present case. In all those cases the question for decision was: whether a female Hindu, who was in possession ol the property of the last male holder on the date of the commencement oi the Hindu Succession Act, only as a tres passer, could claim full ownership of that property by the application of Section 14(1) of the Hindu Succession Act,

This question was answered in the negative and it was held that Section 14 cannot be inter preted so as to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser. The crucial point of time at which the status of the female Hindu is to be looked at is the date of the commence ment of the Hindu Succession Act, i.e., June 17, 1956. In all the above 3 cases, it was found that on the aforesaid date, the possession of the female concerned was that of a trespasser ot ot a person without any vestige of title In Gurdas Dayaram Vs. Mst. Prito and Another, (decided by a Division Bench consisting of G.D. Khosla, C.T. and Maha jan, J.), the cause of action to the plaintiff had accrued on Shrimati Ishri''s death in January 1953, when succession opened out to her es tate. There was also an allegation that the female Mst. Prito and Mst. Channo entered into wrongful possession in 1944. It was therefore not disputed that on the date on which the Act came into force the possession of the donees, Mst Prito and Mst. Channo was in lawful. Similarly, in Smt. Giano Vs. Moti Ram and Others, (decided by Shamsher Bahadur, J.) it was clearly found that she was in wrongful possession from 5th March 1956 onwards

In the present case, however, the alleged wrongful possession of Mst. Kartar Kaur started about 41 years before this suit. It is common ground that thereafter, she has continued to be in established possession of the suit land, without interruption, and as of right. though according to the plaintiff''s case as put in the plaint, she entered into possession on the express understanding as a limited owner for her lifetime. The defendant''s stand throughout has been, that she was holding the suit land as a limited owner immediately before the coming into force of the Act. Thus, even if she has been in continuous, uninterrupted, and open possession of the land, without any right or title, with the intention of holding it as a female limited owner, her possession though that of a trespasser at its inception, would ripen into limited ownership sifter the expiry of 12 years'' adverse possession,

As distinguished from the question involved in the cases cited by the learned counsel for the appellants, the question for determination in the present case, is,: "Whether the provisions of Section 14(1) of the Act would cover the possession of a Hindu widow, who entered into possession of the property of her father-in-law on his death without any right or title but with the intention (o hold it as a limited owner on a life tenure more than 12 years before the commencement of the Hindu Succession Act, and continues to be in such possession right up to the date of the enforcement of the Act? In my opinion, the answer to this question must be in the affirmative. The material part ol the Explanation appended to Sub-section (1) of Section 14 of the Act reads as follows: -

"Explanation;-in this sub-section, "pro perty includes both moveable and immovable property acquired by (sic) prescription, or in any other manner whatsoever . . . held by her .... immediately before the com mencement of this Act."

I have omitted those portions of the Explanation which are not relevant for this case. As I read the above-quoted Explanation, it is quite clear to my mind that even property possessed by a female Hindu immediately before the commencement of the Act, under a prescriptive limited title, would fall within the ambit of the words "properts possessed by a female Hindu", occurring in Section 14(1). Thus, even if the argument of the learned counsel for the appellants that Kartar Kaur entered into possession of the estate of Bishna without any right or title, were to be accepted, then also on the admitted facts, it is clear that on compltion of the 12 years prescriptive period, her wrongful or adverse possession had matured into limited ownership some time in 1941 or 1942, i.e., long before the coming into force of the Act. Further, it is not disputed that she was in possession in the same right immediately before the commencement of the Act. The provisions of Section 14(1) would, therefore, apply and convert her limited ownership into full ownership.

In the light of what has been said above, I would dismiss this appeal with costs throughout.