Punjab-Haryana High Court
Surjit Kaur Daughter Of Parmeshwari ... vs Inder Singh (Deceased on 14 November, 2013
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No.3138 of 1984 (O&M)
Date of decision: 14.11.2013
Surjit Kaur daughter of Parmeshwari Devi and Hira Singh, wife of
Niranjan Singh, at present resident of Village Galwatti, Tehsil
Nabha, District Patiala.
...Appellant
versus
Inder Singh (deceased, through his LRs) son of Harnam Singh,
resident of Village Daudpur, Tehsil Samrala, District Ludhana, and
others.
....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. K.S. Grewal, Advocate,
for the appellant.
Mr. D.V. Sharma, Senior Advocate,
with Mr. S.S.Rangi, Advocate,
for the legal representatives of respondent No.1.
Mr. Harsh Garg, Advocate,
for the legal representatives of respondent No.3
----
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
----
K.Kannan, J. (Oral)
1. Questions of law raised:
1. The following substantial questions of law arise for consideration in the second appeal:-
(i) Whether the plaintiff as a daughter to Hira Singh was not a heir at all as per the customary law prevailing in State of Punjab (District Ludhiana)?
ii) Whether the lower appellate Court was in error in Kumar Sanjeev 2013.11.20 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3138 of 1984 (O&M) -2-
reversing the finding of the plaintiff's status as the daughter of Hira Singh and Parmeshwari when there were several documentary evidences in support of her claim to such status, duly appreciated by the trial Court?
iii) Whether the lower appellate Court was justified in finding adverse possession in favour of the defendant when the defendant had not established his continuous hostile possession of the property for 12 years prior to suit?
2. The second appeal is brought at the instance of the plaintiff whose suit was dismissed on finding her heirship as established but still holding that the defendant prescribed title by adverse possession. In appeal filed by the plaintiff, the lower appellate Court reversed the finding also on her heirship as pleaded by her and confirmed the decision relating to the issue of limitation. The appeal is brought under the circumstances on essentially three questions which I have formulated as propositions of law arising in this case.
II. The relationship of plaintiff to last male owner-trial Court's finding wrongly reversed
3. In this case the trial Court had found the plaintiff as the daughter born through the marriage of Hira Singh with Parmeshwari. The appellate Court reversed it on a consideration of evidence of three witnesses which, according to the appellate Court, was discrepant. The appellate Court held that PW1 Pritam Singh had stated that plaintiff was the heir of Hira Singh and the mother Kumar Sanjeev 2013.11.20 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3138 of 1984 (O&M) -3- was Parmeshwari and she had settled at Kanpur and that in younger age, she was called as Nihalo and married to Niranjan Singh and that she had no other sister. None of these facts as elicited through him was inconsistent with the plaintiff's own case nor was any of these statements found to be incorrect. On the other hand, the birth certificate which had been filed showed that the plaintiff had been born on 03.01.1928 and a female child by name Nihalo was born to the father Hira Singh son of Mansiyana. It will, therefore, be seen that PW1's evidence literally connected the plaintiff to Hara Singh as his daughter through the birth certificate (Ex.P2). PW2-Amar Singh had stated that he knew the plaintiff as a daughter of Parmeshwari and her first name was Nihalo. This again synchronizes with the Ex.P2 and the correct statement of fact regarding the mother. The reason for discrediting his evidence was, he also stated that Nihalo had another sister by name Gurdialo, who was married to one Kartar Singh. Therefore, the evidence was not discrepant about her own status as a daughter of Parmeshwari with the name @ Nihalo but discrepant with reference to whether she had a sister or not. PW3-Kartar Singh made a statement that Niranjan Singh was his brother-in-law and his (Niranjan Singh's) wife was Surjit Kaur. Surjit Kaur is the plaintiff in this case. He was also correct about husband's name as Niranjan Singh. PW3's wife's name was Gurcharan Kaur and he did not know the name of her mother Kumar Sanjeev 2013.11.20 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3138 of 1984 (O&M) -4- and that she was married earlier to Niranjan Singh. I do not know as to how this evidence could be seen as again contradictory to the evidence of PW1, for, he has only stated that he had married earlier to Niranjan Singh's marriage to the plaintiff and if he stated that his wife was Gurcharan Kaur, there is no contradiction anywhere with reference to the plaintiff's status. The appellate Court was, therefore, absolutely perverse in making an inference which was not possible from the manner the facts are elicited.
4. The plaintiff's status as daughter of Hira Singh is not merely through evidence of witnesses, they are brought through documents. I have referred already to Ex.P2 which refers to birth certificate of a child born on 03.01.1928 to Hira Singh. Hira Singh was not known to have had any other child. If that was the attempt of the defendant to say that the plaintiff had not shown her relationship to her father, proceedings where the defendants were themselves parties were surely relevant. In this case, it can be noticed that the plaintiff obtained a mutation of the revenue entry in the year 1959 in mutation No.762 in August, 1959. The plaintiff's status as a daughter of Parmeshwari and Hira Singh has been brought out by the Assistant Collector. The defendant had been a party, who contested the same. He preferred an appeal to the Collector and even the Collector has found that the plaintiff was the daughter of Parmeshwari and that the said fact had not been denied Kumar Sanjeev 2013.11.20 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3138 of 1984 (O&M) -5- before him in appeal. The defendant himself has filed an earlier suit against the plaintiff for injunction but had allowed it to be dismissed for default. In that suit also, the plaintiff's status as the daughter of Hira Singh had not been denied in the plaint. The trial Court has considered the relationship in the suit originally filed and had held with reference to all these documents and witnesses that the plaintiff had established her relationship to her mother as Parmeshwari and her father as Hira Singh. I, therefore, reverse the finding of the lower appellate Court and confirm the finding already entered by the trial Court that the plaintiff was the daughter of Hira Singh and Parmeshwari.
III. Daughter is preferred heir to cognates even for succession that had opened before Hindu Succession Act, 1956
5. If she was the daughter, the next issue that would fall for consideration would be whether the daughter is heir to the mother and father. The evidence was that the mother went missing about 40 years back and she was a heir to her mother and father. The learned counsel appearing on behalf of the legal representatives of respondent No.3 would contend that the Punjab custom excluded daughter at all times by the agnates. The learned senior counsel Mr. Sharma also argues that there was evidence to the effect that Parmeshwari had contacted a kareva form of marriage to one Harnama and the performance of kareva form immediately divested her of her right to the property. The learned counsel would refer me Kumar Sanjeev 2013.11.20 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3138 of 1984 (O&M) -6- to three decisions of this Court which have held the effect of kareva form of marriage to holding of property of her husband. The decision holding the proposition to the above effect are Smt. Ji Kaur etc. Verus Smt. Bhullan etc.-1973 Current Law Journal 734; Dhanno and others Versus Hari Ram and another-1997(2) PLR 393; Natha Singh @ Nathu Singh Versus Jarnail Singh and others-2012(4) PLR 614. The reference to the kareva form of marriage as divesting the interest is not absolute in any sense from these judgments. It talks about a kareva form of marriage to a person, who is not connected with the family of the deceased as disinheriting her. In this case, Ex. D1 shows the plaintiff's mother as having contracted marriage with Harnama, who is not a stranger to the family at all. The genealogy table that has been filed by the defendant and relied on as exhibit depicts as follows:-
Duno Banna Paheli Rupo Balli (son) (daughter) (daughter) (daughter) Mansiyana Rurka Sunder Hira Singh = Parmeshwari Mallu Harnama Surjit Kaur (plaintiff) Inder Singh (defendant) Kumar Sanjeev 2013.11.20 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3138 of 1984 (O&M) -7-
It shows the relationship of Harnama to the common ancestor Duno by 5 degrees above. Duno had a son by name Banna and 3 daughters, Paheli, Rupo and Balli. Paheli's son is Sunder. Sunder's son is Mallu Singh. Mallu's son is Harnama. Paheli's sister is Balli and Balli's son is Masiana. Masiana's son is Hira Singh. Therefore, it can be seen that Hira Singh was not a stranger to the family at all. On the other hand, the defendant is the son of Harnama and that relationship would itself show that Parmeshwari's marriage to Harnama could not have, therefore, caused any divestiture at all.
6. This does not really settle the issue for the plaintiff, for, admittedly Parmeshwari was not known to be alive for the last more than 40 years. The court below had taken her to be civilly dead as she was not known to be alive from 1936. I take the same date as the date when she could have died or even a subsequent date before the Hindu Succession Act as the date when she could have died. The property would revert to her husband, the same way as divestiture has taken place. If the property were to be taken as the property of Hira Singh (her husband), then the heirship to Hira Singh must be seen by creating a fiction that he died at the time when his wife, who was the limited owner at that time died and the succession opened at that time. The competing heir would, therefore, be Hira Singh's father's (Mansanyana's) mother's (Balli's) sister's (Paheli's) son's (Sunder's) son's (Mallu) son's (Harnama) son (Inder Singh). With Kumar Sanjeev 2013.11.20 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3138 of 1984 (O&M) -8- the intervening heirs being females (Balli and Paheli) and connected to one another by a common ancestor Duno. Inder Singh cannot be seen to be an agnate at all. The two courts have wrongly assumed that Inder Singh was an agnate. He was not, if the relationship was properly understood. If the defendant was himself not an agnate, then the question of considering disinheritance of the plaintiff by the presence of an agnate does not arise.
IV. Punjab Customary law examined
7. The learned counsel appearing on behalf of the legal representatives of the 3rd respondent refers me Rattigen's Customary Law, 16th Edition, Page 847. The Book answers the question No.43 thus:-
"If the attestation of last Settlement was correct, a great change in the position of the daughter has taken place. Then the daughter, whether married or unmarried, was not allowed by any tribe in almost any circumstances to rank as an heir. Now the custom is as follows:-
(1) Male lineal issue and widows exclude all daughters (all tribes); but among Mohammedan Rajputs a daughter vowed to celibacy ranks as a son;
(2) Virgin daughters exclude collaterals (all tribes);
(3) Married daughters have no rights of succession whatsoever, save that-
(a) Hindu Jats of Pargannahs Jagraon- Akalgarh and Raekot-Hathur say that failing Kumar Sanjeev 2013.11.20 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3138 of 1984 (O&M) -9- collaterals of sixty degree married daughters succeed, and
(b) Awans, Gujars, Dogars, Labanas and some Mohammedan Rajputs, Jats and Arains allow a married daughter who has not left her father's house (doli nahin nikali gai) to succeed on failure of male lineal descendants to and hand on the inheritance to her children."
8. The reproduced portion will show that if the parties are Jats and failing the collateral of 6th degree, the married daughters would succeed. Clause (2) says virgin daughter would exclude collateral. In this case, we have seen that the succession must be taken as opening on the day when the mother went missing in the year 1936, the plaintiff must have been 8 years at that time. That she married subsequently to Niranjan Singh could hardly be material, for, on the basis of custom as shown by the defendant himself, an unmarried daughter would exclude a collateral. I have examined the customary law in the manner which has been set forth in defence by the counsel. I may also examine the plaintiff's status under Mitakshara, as applied and brought out in Mulla's Hindu law. The daughter was the 5th in line in the order of succession, Nos.1, 2 and 3 being son, grandson and great grandson and after 1937, the 4th in the line was the widow, who took it, as what was known popularly of the widow's estate. The next in the order of succession was the daughter. (Mulla on Hindu law, 21st edition, page 145). At Kumar Sanjeev 2013.11.20 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3138 of 1984 (O&M) - 10 - the time, when the property was taken by the daughter, it was only a limited right but by virtue of Section 14(1) that right had become also an absolute right to the property. Therefore, I have no difficulty in discarding the contention raised by the defendants to hold that the plaintiff had proved her heirship to the property of which her father Hira Singh was admittedly the last male owner.
V. Plea of adverse possession
(a) Documentary evidence does not show defendant's possession before 1959.
9. The case has to be, therefore, tested on a plea by the defendant that he had prescribed title to the property by adverse possession. The suit has been decreed and in the first appeal filed, the appellate Court remanded the matter for a fresh consideration and allowing for liberty to parties to let in additional evidence. On such evidence having been tendered before the trial Court, the defendant examined witnesses and some documents were filed which showed that revenue entry of the year 1902 stood in the name of Mansiyana and later from the year 1912 in Hira Singh's name. Still later, jamabandi had been filed under D3 which was for the year 1946-47 and D16 which was for the year 1959-60. While the previous entries made reference to Hira Singh or Parmeshwari, for the first time in the year 1959, the defendant's name finds a place. The Court also referred to oral evidence of witnesses and it had recorded a finding that the defendant's possession was from the year Kumar Sanjeev 2013.11.20 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3138 of 1984 (O&M) - 11 - 1959-60. In the same judgment elsewhere in another paragraph, the Court took a wild conjecture and held that all the evidence showed that the defendant had been in possession for the last over 30 years. The learned senior counsel would, therefore, refer to the subsequent observations as truly the finding of the court below because the subsequent observation was with reference to oral evidence also. DW2, DW3 and DW4, namely, Ajaib Singh, Sardul Singh and Jagir Singh respectively had given evidence to the effect that the defendant was in possession and was also paying land revenue to the Government.
(b) Recital in document to be taken as whole
10. In this case, I must immediately point out when a plea of adverse possession is taken, the burden of proof as hostile on holding lies on the person, who asserts to such a fact, for, it divests the true owner of the right to property. If there was documentary evidence which was possible and if that had been not produced to uphold a claim to possession and that too adverse possession, mere oral evidence would be very risky to uphold a claim to adverse possession. If there was, therefore, evidence relating to possession from D16, it has to be taken as a whole and cannot be truncated to what is convenient for the defendant. D16 describes the property as in the possession of the defendant but describes him as a marusi or a tenant at will. He could not have allowed for such a wrong entry to Kumar Sanjeev 2013.11.20 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3138 of 1984 (O&M) - 12 - be made, if he was not merely a tenant at will, especially when he seeks to contend that he was in hostile assertion of right as an owner of the property. It would be possible to take possession for earlier years, if there was no document at all for earlier years. The previous jamabandi entries do not refer to the defendant at all. If therefore the possession of the defendant could be taken, as established, it comes for the first time only in Ex.D16. It seems that the plaintiff had applied immediately for mutation when the entry had been made in the jamabandi in the year 1959. Therefore, the defendant's right was challenged in the year 1959 itself and it was at the instance of plaintiff, who was claiming to be a daughter of Hira Singh and Parmeshwari and that she was the one competent to have her name recorded as the owner. It was not as if the defendant did not know the consequence of such an entry. The defendant himself filed a suit in Case No.588 on 20.11.1968 seeking for a declaration that he was the owner of the property but he did not take it beyond the institution and allowed the suit to be dismissed for default; never to be restored again. The present suit came to be instituted immediately after the suit for dismissal. The date of institution was 09.04.1969. 12 years' possession did not take place and if the plaintiff had asserted her right and obtained mutations in the year 1959, she was vigilant in her rights and she had also filed the suit even within 12 years.
Kumar Sanjeev 2013.11.20 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3138 of 1984 (O&M) - 13 -
(c) Effect of change of law
11. A change in law that has come about which has been recognized through several decisions is that under Article 144 of the Limitation Act 1908, the suit for recovery of possession on the basis of title had to be filed within a period of 12 years from the time when the plaintiff had lost her possession. The change in language in Article 65 of the Limitation Act of 1963 is that a plaintiff suing on title for recovery of possession must file a suit within 12 years from the time when the defendant's possession became adverse. This change in language has been noted in several decisions. (See: C. Natrajan Versus Ashim Bai-(2007) 14 SCC 183; P.T. Munichikkanna Reddy Versus Revamma-(2007) 6 SCC 59; Des Raj Versus Bhagat Ram-(2007) 9 SCC 641) and they have held that in view of the change in language, the plaintiff suing on title cannot be non-suited unless the defendant is able to establish his possession of the property for over the statutory period. In this case, there is no proof of possession and that too, hostile possession to the plaintiff. On the other hand, the first entry of possession comes only in the year 1959 and that possession is also entered only as a tenant. There is no other document which establishes the defendant's claim to possession. The suit ought to have been decreed. The dismissal by the two courts below was on wrong understanding and application of law and a perverse appreciation of evidence at the appellate Kumar Sanjeev 2013.11.20 10:26 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3138 of 1984 (O&M) - 14 - Court.
VII. Disposition
12. The judgments of the courts below are set aside and the second appeal is allowed with costs. The suit is decreed for possession from the defendants. The plaintiff is also entitled to mesne profits from the date of suit till delivery of possession under Order 20 Rule 12 CPC in separate proceedings. Counsel's fee `10,000/-.
(K.KANNAN) JUDGE 14.11.2013 sanjeev Kumar Sanjeev 2013.11.20 10:26 I attest to the accuracy and integrity of this document chandigarh