Mst. Kirpo and Others vs Bakhtawar Singh

D.K. Mahajan, J.—This second appeal is directed against the concurrent decisions of the Courts below decreeing the Plaintiff''s suit. This appeal has arisen in the following circumstances.

Smt. Kirpo, who is the principal Defendant, was married to Sawan Singh some time in 1924. Sawan Singh died during the life time of his father Bhagwan Singh. On Bhagwan Singh''s death, Smt. Kirpo succeeded to his estate as his son''s widow. She married one Bakhtawar Singh in the year 1925 and In the year 1927, Blshan Singh, who is the fourth degree collateral of Bhagwan Singh both being the descendants of Dhanna Singh, brought a suit for declaration that he was in possession of Bhagwan Singh''s property and was entitled to retain it as the next heir because by remarriage Smt. Kirpo had forfeited her right to Bhagwan Singh''s estate. Whether this plea would have succeeded or not, if the litigation had reached its logical conclusion, is a different matter. The fact remains that this suit was compromised on the 23rd November, 1928 By this compromise the estate was left mm Smt. Kirpo for life and it was specifically prowled (hat she could not alienate the same in any manner.

Mst. Kirpo gave birth to a son Dalip Singh from Bakhtawar Singh. In the year 1945, Smt Kirpo gifted the estate to Dalip Singh, her son from Bakhtawar Singh, by an oral gift. Dalip Singh thereafter brought a suit for possession of that properly and obtained a decree on the 12th November, 1945. On the 18th April, 1-946, Bakhtawar Singh father of Dalip Singh brought a suit for declaration that the gift by Smt. Kirpo would not affect his reversionary rights in view of the com promise of 1928. This suit was decreed on the 3rd June, 1948. An appeal filed by Dalip Singh against it was withdrawn.

On the 22nd September, 1958. Dalip Singh executed a deed of relinquishment in favour of Smt. Kirpo giving up his rights in the gifted property. By this process the gifted property again vested in Smt. Kirpo. On the 1st October, 1958. she executed a will in favour of Karnail Singh SOP of Dalip Singh and Pritma Kaur wife of Dalip Singh This has led to the present suit by Bakhtawar Singh on the 12th March, 1959 for a declaration that Smt Kirpo is a limited owner and could not make a gift. This suit, as already stated, has been decreed By the trial Court and an appeal against it has been dismissed by the lower appellate Court Hence the present second appeal.

The only contention raised by the learned Counsel for the Appellants is that the Courts below were in error in holding that Smf. Kirpo'' held u limited estate in the property gifted by her. It is contended that after the passing of the Hindu Succession Act she became an absolute owner of the property in dispute and the Courts below have erred in holding tot she was a limited owner of the same. Smt. Kirpo succeeded to her father-In-law and, therefore, site acquired the property by succession and therefore it cannot be that she acquired tae same Sy reason of the 1928 compromise. That being so Section 14(2) of the Hindu Succession Act has no applicability. The case really fell u/s 14(1) of the Act. In support of this contention, the learned Counsel relies on Billabasini Datta and Others Vs. Dulal Chandra Dutta and Others, Smt. Janak Dulari v. Dist. Judge, Kanmir AIR 1981 All 294, v. Sampathkumari v. M. Lakshmi Ammal AIR 1963 Mad 50 and Smt. Sharbati Devi v. Hira Lal, 66 Pun LR 7 : AIR 1984 P&H 114. These decisions, on a cursory reading, do seem to support the contention of die learned Counsel but in my view they are all distinguishable and have no application to the facts of the present case.

It is common ground that Smt. Kirpo remarried, after the death of her husband, the husband''s collateral Bakhtawar Singh. On her remarriage, a dispute arose as to whether she had forfeited the right to the property she had acquired from her husband by reason of the remarriage. That dispute was compromised and it seems to have been assumed that she had forfeited her estate. By the compromise she was allowed to retain possession of the property on the conditions specified in the compromise. In this situation and in the peculiar circumstances of this case, it must be held that she acquired the property in the year 1928 under the compromise. If there was no forfeiture of her estate by reason of the remarriage, she would not have centered into the compromise, because oven before the compromise she was holding the estate on the same terms and conditions under which she was to hold it after the compromise. Therefore the very basis on which the argument proceeds is knocked off in this case, the basis being that there is no acquisition of the property by the widow under the compromise.

So far as the decisions cited above go, they proceed on tire interpretation of the word ''acquired'' used in Section 14(2). If the decisions cited are closely examined it will be found that the Madras and the Calcutta decisions were cases where in a partition suit a compromise was arrived at arid in the compromise limitations were placed on a female owner''s estate. It was held that in such circumstances the provisions of Section 14(2) did not stand in the way of the female owner being absolute owner of the property u/s 14, the reason being that she never acquired the property under the compromise decree. Section 14(2) is an exception to Section 14(1) and in order that Section 14(2) applies, it has to be established that the property was acquired under a decree or order or Instrument. But if the estate is lost and it is re-acquired by reason of a compromise it will be tantamount to acquisition within the meaning of Section 14(2).

There is another way of looking at the matter. There can be no question of anyone acquiring property in a partition decree. The decree divides the properties of the owners and proceeds on the basis that the title to the property is in the parties to the partition suit Therefore, the Madras and Calcutta decisions are no authority for the proposition contended for namely that in no circumstances property can be acquired under a compromise decree. So far as the Allahabad and the Punjab decisions are concerned they are cases of declaratory decrees and thus there could be no question of any property being acquired under those decrees. These decisions can have no application to cases in which there is a dispute to property between two rival claimants and that dispute is settled by a compromise. In this situation, their titles flow from the compromise because they give up their respective claims and accept the compromise as the basis of their title. It can, therefore, be safely slated that in these circumstances, they acquire property under the compromise. Once it is held that the property is acquired under the compromise, the provisions of Section 14(2) of the Act are satisfied to the hilt. That being so, these decisions are of no use to the learned Counsel for the Appellant.

For the reasons given above, this appeal fails and is dismissed, but there will be no order as to costs.