Punjab-Haryana High Court
Gurmel Singh vs Gurnam Singh And Others on 23 December, 2011
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
RSA No.278 of 1984 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
RSA No.278 of 1984
Date of Decision: 23.12.2011
Gurmel Singh .....Appellant
Vs.
Gurnam Singh and others .....Respondents
CORAM : HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK
****
Present : Mr.Sarjit Singh, Sr.Advocate with Mr. Jagdev Singh, Advocate for the appellant.
Mr. J.R. Mittal, Sr.Advocate with Mr. Kashmir Singh, Advocate for the respondents.
....
1. Whether Reporter of the local paper may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest? RAMESHWAR SINGH MALIK, J The appellant is the original plaintiff. The suit was decreed. The instant appeal is directed against the judgement and decree dated 28.9.1983, passed by the learned District Judge, Bhatinda, whereby the appeal filed by the defendants was accepted reversing the judgement and decree dated 27.8.1979 and the suit of the plaintiffs was dismissed.
Succinctly put, the facts of the case are that Sucha Singh was the last male holder. The admitted pedigree table, as given in para 2 of the impugned judgement, is as under :-
Sucha Singh (died in 1952)
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Harpal Singh Bhag Singh
(died in 1942) (died in 1931)
Jangir Kaur (widow)
(defendant no.4)
----------------------------------
Gurmel Magher Nihal Kaur
Singh Singh (widow)
(Plaintiffs)
RSA No.278 of 1984 2
The plaintiffs filed their suit for declaration, challenging the sale deed dated 10.6.1977, suffered by Smt.Jangir Kaur-defendant no.4 in favour of defendants-respondents no.1 to 3 namely; Gurnam Singh, Pritam Singh and Jagtar Singh. The plaintiffs pleaded that Sucha Singh was the owner of land measuring 378 Bighas 1 Biswa including the suit land. Sucha Singh died on 13.7.1952. Smt. Jangir Kaur-defendant no.4 was married to Bhag Singh, who died in the year 1931, before the death of his father Sucha Singh. It was the further case of the plaintiffs that Smt. Jangir Kaur, entered into Karewa marriage with Harpal Singh, father of the plaintiffs. Harpal Singh died in the year 1942, before the death of his father Sucha Singh. Both brothers namely; Harpal Singh and Bhag Singh were married to Smt.Nihal Kaur and Smt.Jangir Kaur respectively, who were the real sisters. It was also pleaded by the plaintiffs that after the death of Sucha Singh, it were the plaintiffs, who were entitled to succeed to Sucha Singh in equal shares. However, Smt. Jangir Kaur-defendant no.4, in collusion with the revenue authorities, got the mutation sanctioned in her favour to the extent of ½ share, behind the back of the plaintiffs. The other ½ share was sanctioned in favour of the plaintiffs. This mutation came to be challenged by the plaintiffs in appeal before the Collector. The case was remanded by the Collector to the Assistant Collector, for fresh decision. It is further pleaded case of the plaintiffs that during the pendency of the mutation proceedings, a compromise was got effected between the parties through the intervention of the Panchayat and other respectables of the village. As per this compromise dated 30.12.1953, Ex.P-1, Smt. Jangir Kaur-defendant no.4, agreed to have only 70 Bighas of land, out of the total land left behind by Sucha Singh. In terms of the compromise Ex.P-1, Smt. Jangir Kaur was RSA No.278 of 1984 3 given this (70 Bighas) of land only for the purpose of maintenance during her life time with the condition that she would not alienate or transfer the same. It was further pleaded that pursuant to the compromise dated Ex.P-1, the Tehsildar sanctioned the mutation in respect of 308 Bighas 1 Biswa of land in favour of the plaintiffs. The mutation for the remaining land i.e. 70 Bighas was sanctioned in favour of Smt. Jangir Kaur-defendant no.4. Thereafter, the consolidation proceedings took place in the village of the parties. Land measuring 487 Kanals 10 Marlas was allotted in favour of the plaintiffs, in lieu of the old Khasra numbers. Land measuring 101 Kanals 1 Marla was allotted to Smt. Jangir Kaur-defendant no.4, in lieu of 70 Bighas of land. It was also pleaded by the plaintiffs that the consolidation authorities wrongly shown Smt. Jangir Kaur as widow of Bhag Singh, instead of widow of Harpal Singh. The plaintiffs pleaded that the land sold by Smt. Jangir Kaur-defendant no.4, vide sale deed dated 10.6.1977 in favour of defendants/respondents no.1 to 3 for a fictitious amount of ` 25,000/- was illegal, being in contravention of the compromise dated 30.12.1953 Ex.P-1. It was the further case of the plaintiffs that Smt.Jangir Kaur-defendant no.4 was entitled to retain the suit land only for her maintenance during her life time and she had no right to alienate the same.
It was further pleaded by the plaintiffs that since the parties were governed by Punjab Customary law and Smt.Jangir Kaur-defendant no.4, being the widowed daughter-in-law of Sucha Singh, was not entitled to succeed to the estate left behind by Sucha Singh.
Smt. Jangir Kaur-defendant no.4 filed her written statement, wherein she pleaded that she was the widow of Bhag Singh. She specifically denied the averments taken in the plaint that she entered into Karewa RSA No.278 of 1984 4 marriage with Harpal Singh, after the death of her husband Bhag Singh in the year 1931. She further pleaded that the mutation was rightly sanctioned in her favour by the Assistant Collector on 26.6.1956, to the extent of ½ share in the land left behind by her father-in-law Sucha Singh, she being the widow of pre-deceased son Bhag Singh. The remaining ½ share was rightly mutated in favour of the plaintiffs, being the sons of Harpal Singh, pre- deceased son of Sucha Singh. She also denied having been entered into any compromise with the plaintiffs, vide which the 70 Bighas land was given to her for her maintenance during her life time. She denied that the suit land was allotted to her during the consolidation proceedings. On the other hand, she pleaded that the suit land was given to her by the plaintiffs after obtaining ` 24,000/- through four pronotes dated 13.6.1976. Two of these pronotes were in favour of plaintiff no.1 for ` 7000/- and ` 5000/- respectively. The other two pronotes were in favour of plaintiff no.2 for the similar amounts. She also pleaded that it was orally agreed between the parties that on her repaying the amount of ` 24000/- to the plaintiffs, they would return the suit land to her. It was also agreed, though orally as alleged,that till the amount of ` 24,000/- paid, she would not claim any rent (batai) from the plaintiffs, whereas the plaintiffs would not claim any interest on the amount of ` 24,000/- from Smt.Jangir Kaur-defendant no.4. The fact that she sold the suit land to defendants no.1 to 3, vide sale deed dated 10.6.1977 and delivery of possession thereof to her vendees was admitted by Smt.Jangir Kaur-defendant no.4.
Defendants/respondents no.1 to 3 admitted in their joint written statement that they had purchased the suit land from Smt.Jangir Kaur- defendant no.4, who was in possession of the suit land since before 1956. It RSA No.278 of 1984 5 was further pleaded by defendants no.1 to 3 that Smt.Jangir Kaur-defendant no.4 was full owner of the suit land and she was entitled to alienate the same. Defendants no.1 to 3 further pleaded that the suit land was under
mortgage with the plaintiffs for ` 24,000/-, on the basis of the pronotes dated 13.6.1976. It was also pleaded by defendants no.1 to 3 that after paying the mortgage money of ` 24,000/- to the plaintiffs, Smt.Jangir Kaur- defendant no.4 got back the possession of the suit land from the plaintiffs. Thereafter, she sold the suit land to defendants no.1 to 3 and also delivered to them the possession thereof. Defendants no.1 to 3 took the averment that the plaintiffs were estopped from challenging the title of Smt.Jangir Kaur- defendant no.4 by their acts and conduct. It was the further case of defendants no.1 to 3 that they being the bonafide purchasers for due consideration, their right of absolute ownership over the suit land was protected by law.
On completion of the pleadings of the parties, the following issues were framed by the learned trial court :-
1. Whether the land in dispute and other land as mentioned in para no.3 of the plaint was given to defendant no.4 for maintenance for her life time by a compromise effected on 30.12.1953 ? OPP.
2. Whether the sale made by defendant no.4 in favour of defendants no.1 to 3 in respect of the land in dispute is null and void ? OPP.
3. Whether defendants no.1 to 3 are bonafide purchasers of the suit land and for value without notice of Jangir Kaur being only entitled to maintenance from RSA No.278 of 1984 6 the land got by her in compromise ?OPD.
4. Whether the suit is not properly valued for purposes of court fee and jurisdiction ? OPD.
5. Whether the suit is not within limitation ? OPD.
6. Whether plaintiffs are estopped from filing the suit by their act and conduct ?OPD.
7. Whether defendant no.4 had become owner of the suit land by way of adverse possession ? OPD.
8. Whether the grandfather of the plaintiffs, defendant no.4 and the father of the plaintiffs were governed by the Punjab Customary Law in matters of succession, if so its effect ? OPP.
9. Whether defendant no.4 entered into any Karewa marriage with Harpal Singh after the death of her husband, namely, Bhag Singh ? OPP.
10. If issue no.8 is proved,even still defendant no.4 is entitled to succeed to the inheritance of her father-in-law to the extent of half share being the wife of the pre-
deceased son of Bhag Singh (sic) Sucha Singh ? OPD.
11. Whether the plaintiffs have locus standi to file the suit ? OPD.
12. Relief."
The parties led their respective evidence, documentary as well as oral. After examining the evidence brought on record by both the parties, the learned trial court decided issues no.1 to 5, 8, 10 and 11 in favour of the RSA No.278 of 1984 7 plaintiffs and against the defendants. Issue no.6 was decided against the defendants and issue no.7 was decided against defendant no.4. No specific finding was given by the learned trial court on issue no.9,although it was held that the finding thereon would not make any difference about the position of defendant no.4, as she had been held not entitled to succeed to her father-in-law as an heir. Accordingly, the suit was decreed, vide judgement and decree dated 27.8.1979, by the learned Sub-Judge, Ist Class, Mansa. The sale deed dated 10.6.1977 was held to be null and void. Plaintiffs were declared entitled to take possession of the suit land from defendants no.1 to 3, however, after the death of Smt.Jangir Kaur-defendant no.4.
Dissatisfied with the judgement and decree passed by the learned trial court,defendants filed an appeal before the learned lower appellate court. The learned lower appellate court, vide its order dated 4.8.1982, struck off the name of Smt.Jangir Kaur from the Memorandum of Appeal,as she had died during the pendency of the appeal because her legal heirs Gurmail Singh and Maghar Singh were already on record as respondents no.1 and 2 in the appeal before the learned lower appellate court. It is pertinent to mention here that during the pendency of their appeal, defendants no.1 to 3 were allowed to file their amended written statement. The learned first appellate court remanded the case under Order 41 Rule 25 of the Code of Civil Procedure (`CPC' for short), vide its order dated 14.3.1983 directing the defendants to file their amended written statement before the trial court on or before 31.3.1983. The learned trial court was further directed to allow an opportunity to the plaintiffs to file replication to the amended written statement. The learned trial court was RSA No.278 of 1984 8 also directed to frame additional issues and affording an adequate opportunity to the parties to lead their evidence. The learned trial court was directed to decide the said (additional) issues as well as issue no.9 and return its findings thereon. In compliance of the abovesaid remand order dated 14.3.1983, passed by the learned District Judge, Bhatinda, the learned trial court allowed defendants no.1 to 3, to file their amended written statement. Plaintiffs were granted an opportunity to file their replication and thereafter two additional issues i.e. Issue no.11-A and 11-B were framed, which read as under :-
"11-A. Whether Jangir Kaur-had become full owner of the suit property in view of section 14(1) of the Hindu Succession Act, 1956 ? OPD.
11-B. Whether (sic) What is the effect of filing of the amended written statement after the date fixed ? OPD."
The learned trial court, vide its order dated 4.6.1983, decided issues no.9, 11-A and 11-B, in favour of the plaintiffs and against the defendants. The case was forwarded to the learned lower appellate court,where the first appeal of the defendants was pending decision, awaiting the report/order of the learned trial court on the above said additional issues as well as on issue no.9.
The learned lower appellate court re-appreciated the evidence available on the record and vide its judgement and decree dated 28.9.1983, accepted the appeal of the defendants. Suit of the plaintiff was ordered to be dismissed setting aside the judgement and decree dated 27.8.1979, passed by the learned trial court.
RSA No.278 of 1984 9
Aggrieved from the judgement and decree dated 28.9.1983, passed by the learned District Judge, Bhatinda, the instant appeal has been filed by the appellant before this court.
After hearing the learned senior counsel for both the parties, the following substantial questions of law were formulated, vide order dated 25.11.2011 :
i) Whether the deceased Jangir Kaur became full owner under Section 14(1) of the Hindu Succession Act, when she acquired the land on the basis of a compromise which created a life estate and prohibited the alienation?
ii) Whether the lower appellate court has misinterpreted the compromise on the basis of which Jangir Kaur got 70 bighas of land for her life ?
iii)Whether the finding of the lower appellate court regarding Karewa is based upon misreading of evidence ?
iv)Whether the lower appellate court committed a patent error in not meeting the reasons given by the trial court when the trial court relied upon the judgement of Full Bench of this court in AIR 1977 Punjab and Haryana 341 ?"
Mr.Sarjit Singh, learned senior counsel for the appellant, submits that Smt.Jangir Kaur, being the widowed daughter-in-law, was not entitled to succeed to the estate of her father-in-law Sucha Singh, who died in 1952, before coming into force the Hindu Succession Act, 1956(`Act of 1956' for short). He further submits that the Hindu Women's Rights to Property Act, 1937 (Act of 1937' for short') is not applicable in the present RSA No.278 of 1984 10 case because the parties were governed by custom. The learned senior counsel further submits that the learned first appellate court, while accepting the appeal of the defendants,illegally set aside the cogent findings of the learned trial court on issues no.1, 2, 9, 10 and 11-A. He also submits that as per the observations made by the learned lower appellate court, issues no.3, 4, 5, 6, 7, 8, 11-A and 11-B were since not pressed nor any argument was raised on behalf of either of the parties on these issues, the findings of the learned trial court thereon were affirmed. The learned senior counsel would further contend that Smt. Jangir Kaur had entered into a compromise dated 30.12.1983, Ex.P-1, with the plaintiffs restricting her claim only to the extent of 70 Bighas of land. In terms of compromise, the suit land was only for her maintenance during her life time, with a condition that she will not alienate or transfer this property. Thus, she had no right in law to execute the sale deed dated 10.6.1977 in favour of defendants no.1 to 3, the respondents herein. The learned senior counsel also contended that the present case, in view of its facts and circumstances, would be governed by the provisions of Section 14(2) of the Act of 1956. The learned senior counsel also submits that the Karewa marriage in the present case, would not improve the status of Smt. Jangir Kaur. Finally, the learned senior counsel for the appellant, submits that the impugned judgement and decree, passed by the learned lower appellate court may be set aside and the appeal may be allowed. The learned senior counsel relies upon the Full Bench judgement of this court reported as Smt.Jaswant Kaur Vs. Harpal Singh and others, AIR 1977 Punjab and Haryana 341.
Per contra, Mr.J.R. Mittal, senior counsel for the respondents, submits that Sucha Singh was the last male holder, whose succession RSA No.278 of 1984 11 opened on his death in the year 1952. He further submits that it is an admitted fact between the parties that Sucha Singh died intestate and he did not put any restriction on the rights of Smt. Jangir Kaur, who was the widow of his pre-deceased son namely; Bhag Singh. He further submits that even if, Sucha Singh would have executed a Will, disinheriting Smt.Jangir Kaur or placing any restriction on her right of maintenance,that would have been totally insignificant, in view of the provisions of Section 14 of the Act of 1956. The learned senior counsel also contended that before passing of the Act of 1956, the parties were either governed by the Hindu Law or by the Custom. The sale by a female could have been challenged by the male descendants of Sucha Singh, under the custom, had suit land been ancestral. Similarly, under the Hindu Law, the sale by a female could have been challenged by the coparceners, only if, the suit land would have been ancestral in the hands of Sucha Singh. He further submits that the plaintiffs neither pleaded nor proved that the suit land was ancestral in the hands of Sucha Singh qua the plaintiffs. There is no issue framed by the learned trial court in this regard. The learned senior counsel further submits that the case of the plaintiffs is based solely on the compromise dated 30.12.1953, Ex.P- 1, which shows that Smt.Jangir Kaur was not seeking any concession from the plaintiffs, but she herself gave concession to them restricting her claim to the extent of 70 Bighas. He further submits that the respondents/defendants no.1 to 3 being vendees from Smt.Jangir Kaur- defendant no.4, vide sale deed dated 10.6.1977 for due consideration, they are bonafide purchasers. In terms of Ex.P-4 (jamabandi for the year 1972-
73), which is a relevant revenue document produced by the plaintiffs themselves, Smt.Jangir Kaur was recorded as full owner of the suit land, RSA No.278 of 1984 12 measuring 101 Kanals 1 Marla. Thus, the learned senior counsel for the respondents, would further submit that the respondents being bonafide purchasers,their right was also protected under Section 41 of the Transfer of Property Act.
The learned senior counsel for the respondents, next contended that the sale by a female, after passing of the Act of 1956, cannot be challenged, she being the absolute owner under Section 14 of the Act of 1956. Thus, the suit of the plaintiffs would not have been maintainable. Regarding the compromise Ex.P-1, the learned senior counsel for the respondents would submit that it can be, at the most, treated as family settlement recognising the pre-existing right of maintenance of Smt.Jangir Kaur,which got enlarged and became absolute under Section 14(1) of the Act of 1956. He submits that right of maintenance of Smt.Jangir Kaur under Section 14(1) of the Act of 1956 was her absolute right and even if, there was any restriction on it, vide Ex.P-1, the same will be of no significance, in view of the provisions of Section 14(1) of the Act of 1956. To substantiate his argument, the learned senior counsel relies upon Mt. Chand Kaur and another Vs. Bhagwan Singh and another, AIR 1937 Lahore 612, Badri Pershad Vs. Smt. Kanso Devi, AIR 1970 SC 1963, Vaddeboyina Tulasamma and others Vs. Vaddeboyina Sesha Reddi (dead) by LRs, AIR 1976 SC 1944, Ram Sarup and others Vs. Smt.Patto and others, AIR 1981 Punjab and Haryana 68, Nazar Singh and others Vs. Jagjit Kaur and others, AIR 1996 SC 855(1), Smt.Beni Bai, Vs. Raghubir Prasad, AIR 1999 SC 1147, Shakuntla Devi Vs. Kamla & others, JT 2005 (4) SC 315, Smt.Ass Kaur (deceased) by LRs Vs. Kartar Singh (Dead) by LRs and others, 2007(3) RCR (Civil) 369 (SC) and Sri RSA No.278 of 1984 13 Ramakrishna Mutt rep. By Manager Vs. M. Maheswaran and others, 2010(4) RCR (Civil) 791 (SC) The learned senior counsel further submits that Ex.P-1 (compromise) dated 30.12.1953, did not grant the right of maintenance to Smt.Jangir Kaur for the first time, but it recognised her pre-existing right. He also submits that provisions of Section 14(2) of the Act of 1956,cannot be held to evaporate the provisions of Section 14(1) thereof. The learned senior counsel also submitted that the Full Bench judgement in Jaswant Kaur's case (supra) was a case of Will under Section 14(2) because the word `Will' is mentioned only under Section 14(2) and not under Section 14(1) of the Act of 1956, therefore, the judgement is distinguishable on facts and would not apply in the present case.
The learned senior counsel for the respondents, also submitted that even if, semblance of right was there in favour of Smt.Jangir Kaur, the same got enlarged and became absolute under Section 14(1) of the Act of 1956. Concluding his arguments, the learned senior counsel for the respondents, submits that the appeal was without any merit and the same was liable to be dismissed.
I have given my thoughtful consideration to the rival contentions raised by the learned senior counsel for both the parties and with their able assistance, have gone through the record of the case. Having carefully examined all the material aspects of the matter under the peculiar facts and circumstances of the case, besides in view of the codified as well as judge made law applicable thereto, this court is of the considered opinion that the present appeal is without any merit and is liable to be dismissed for more than one reasons to be recorded hereinafter. RSA No.278 of 1984 14
The basic issue in the instant appeal is, whether the present case would be governed under the provisions of Section 14(1) or Section 14(2) of the Act of 1956. Learned counsel for the appellant placed heavy reliance on the compromise dated 30.12.,1953 Ex.P-1, to contend that once Smt.Jangir Kaur had entered into the compromise restricting her right of inheritance only to the right of maintenance during her life time with further condition that she will not alienate the suit property, there was no scope for her to back out from the same, notwithstanding her right of inheritance under the Act of 1956. So far as the custom regarding Karewa marriage or inheritance by a widow of pre-deceased son is concerned, it was neither pleaded nor proved by either of the parties. Learned senior counsel for the appellant very fairly submitted that he would not press the issue regarding the Karewa marriage of Smt.Jangir Kaur because the same is not going to change the legal position. Leaned senior counsel for the appellant, while replying to the argument raised by learned senior counsel for the respondents, also relied upon the judgement of the Hon'ble Supreme Court rendered in Badri Persad Vs. Smt. Kanso Devi, AIR 1970 SC 1963. He further submitted that the judgements relied upon by the learned senior counsel for the respondents, are not applicable in the present case, as the same were liable to be distinguished on facts. After giving my due consideration to the contentions raised by learned senior counsel for the appellant, I find no force in any of the submissions.
In the given fact situation of the present case, I have no hesitation to conclude that the instant case will be governed under the provisions of Section 14(1) of the Act of 1956. Section 14(2) of the Act of 1956, has no application to the facts and circumstances of this case. In fact, RSA No.278 of 1984 15 this pivotal issue is no more res-integra. Similar issue had been the subject matter of number of decisions before the Hon'ble Supreme Court of India. The most important judgment in this regard was in Vaddeboyina Tulasamma's case (supra), which has further been followed in a number of the cases including Ram Sarup and others( supra), Smt.Beni Bai (supra), Shakuntla Devi (supra), Sri Ramakrishna Mutt rep. By Manager (supra) and Nazar Singh and others (supra). The relevant observations made by the Hon'ble Supreme Court in Nazar Singh's case (supra) in paras 7,8,9 and 10 read as under :-
"7. According to sub-section (1) any property possessed by a female Hindu shall be held by her as full owner thereof and not as a limited owner irrespective of the fact whether the said property was acquired by her before the commencement of the Act. Explanation to sub-section (1) elaborates the meaning and content of the expression "property" in sub-section (1). It includes property given in lieu of maintenance.
8. Section 14 and the respective scope and ambit of sub-sections (1) and (2) has been the subject matter of a number of decisions of this Court, the most important of which is the decision is V.Tulasamma v. V. Sesha Reddi (1977)(3) SCC 99: (AIR 1977 SC 1944). The principles enunciated in this decision have been reiterated in a number of decisions later but have never been departed from. According to this decision, sub-section (2) is confined to cases where property is acquired by a female RSA No.278 of 1984 16 Hindu for the first time as a grant without any pre-
existing right under a gift, 'will instrument', decree, order or award, the terms of which prescribe a restricted estate in the property. It has also been held that where the property is acquired by a Hindu female in lieu of right of maintenance inter alia, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of sub-section (2) even if the instrument, decree, order or award allotting the property to her prescribes a restricted estate in the property. Applying this principle, it must be held that the suit lands, which were given to Harmel Kaur by Gurdial Singh in lieu of her maintenance, were held by Harmel Kaur as full owner thereof and not as a limited owner notwithstanding the several restrictive covenants accompanying the grant [Also see the recent decision of this Court in Mangat Mal v. Punni Devi, (1995) 6 SCC 88 : (1995 AIR SCW 3885) where a right to residence in a house property was held to attract sub-section (1) of Section 14 notwithstanding the fact that the grant expressly conferred only a limited estate upon her.] According to sub-section (1) where any property is given to a female Hindu in lieu of her maintenance before the commencement of the Hindu Succession Act, such property becomes the absolute property of such female Hindu on the commencement of the Act provided the RSA No.278 of 1984 17 said property was "possessed" by her. Where however the property is given to a female Hindu towards her maintenance after the commencement of the Act, she becomes the absolute owner thereof the moment she is placed in possession of the said property (unless, of course, she is already in possession) notwithstanding the limitations and restrictions contained in the instrument grant or award whereunder the property is given to her. This proposition follows from the words in sub-section (1) which insofar as is relevant read. "Any property possessed by a female Hindu after the commencement of this Act shall be held by her as full owner and not as a limited owner." In other words, though the instrument, grant, award or deed creates a limited estate or a restricted estate, as the case may be, it stands transformed into an absolute estate provided such property is given to a female Hindu in lieu of maintenance and is placed in her possession. So far as the expression "possessed" is concerned, it too has been the subject-matter of interpretation by several decisions of this Court to which it is not necessary to refer for the purpose of this case.
9. The learned counsel for the respondents-plaintiffs relied upon a recent decision of this Court in Gumpha v. Jaibai, (1994) (2) SCC 511 in support of his contention that in the facts of this case, it is sub-section (2) of Section 14 and not sub-section (1) that is attracted. But RSA No.278 of 1984 18 that was a case where certain property was given to a Hindu female under a Will. The Bench held that since Will is referred to only in sub-section (2) and not in sub- section (1) it is sub-section (2) that is attracted in the case of a property bequeathed under a Will. Since, the suit lands were given to Harmel Kaur under a compromise and not under a Will - the principle of the said decision has no application herein.
10. For the above reasons, we hold that the said lands became the absolute property of Harmel Kaur the moment she was placed in possession thereof. (It is not disputed that the said property was indeed placed in her possession and that she was in possession and enjoyment thereof from the date of the aforesaid compromise.) Once this is so the suit must fail. The Courts below were in error in holding that because the compromise whereunder the said lands were given to Harmel Kaur towards her maintenance created a life estate and a restricted estate sub-section (1) of Section 14 is not attracted and that it is sub-section (2) that is attracted here."
While reiterating the above noted principle of law, in the case of Smt. Beni Bai (supra), the Hon'ble Apex Court, in relevant paragraphs No.5, 6, 7 and 8, held as under :-
"5. The aforesaid case was followed in, Ram Kali V. Choudhri Ajit Shankar (1997) 9 SCC 613. This Court RSA No.278 of 1984 19 held in Ram Kali's case as under :-
"16. The only argument raised before us by the learned counsel for the respondents was that on the facts of this case Section 14(2) of the Hindu Succession Act applies and not Section 14(1).
According to the learned counsel for the respondents the Hindu women have no pre-
existing right for maintenance and assuming she had so, that must be pursuant to Hindu Women's Right to Property Act, 1937 and not earlier. This argument is not available in view of the clear pronouncement to the contrary in Tulsamma case."
6. This Court in, Raghubar Singh Vs. Gulab Singh (1998) 6 SCC 314; (1998 AIR SCW 2393), held as under (Para 25, at P.2401 of AIR SCW):-
"26. It is by force of Section 14(1) of the Act, that the widow's limited interest gets automatically enlarged into an absolute right notwithstanding any restriction placed under the document or the instrument. So far as sub-section (2) of Section 14 is concerned, it applied to instruments, decrees, awards, gifts, etc., which create an independent or a new title in favour of the female for the first time. It has no application to cases where the instrument/document either declares or recognizes or confirms her share in the property or her "pre- RSA No.278 of 1984 20 existing right to maintenance" out of that property. As held in V.Tulsamma case sub-section (2) of Section 14 is in the nature of a proviso and has a field of its own, without interfering with the operation of Section 14(1) of the Act."
7. From the aforesaid pronouncement of law by this Court, it is clear that sub-section (1) of Section 14 applies to the cases where the conferment of right to a Hindu widow was in lieu of maintenance or in recognition of her pre-existing right as provided under the Shastric law and Hindu Women's Rights to Property Act. Sub-section (2) of Section 14 of the Act would apply only to such cases where grant conferred a fresh right or title for the first time and while conferring the said right certain restrictions were placed by the grant or transfer.
8. In the present case, the widow was conferred the limited right in lieu of maintenance in recognition of her pre-existing right. The limited interest conferred upon her by virtue of the Will being in lieu of maintenance and in recognition of her pre-existing right, the said right transformed into an absolute right by virtue of Section 14 (1) of the Act. The said right was not conferred on her for the first time. Thus sub-section (2) of Section 14 of the Act has no application to the present case. Under such circumstances, the widow became the absolute owner of RSA No.278 of 1984 21 House no.27 and was fully competent to execute the Gift Deed in favour of her daughter. The Gift Deed executed by the widow was thus valid."
Now coming back to the facts of the present case, Smt. Jangir Kaur once acquired the suit property vide compromise deed (Ex.P-1) dated 30.12.1953, as right of her maintenance, in recognition of her pre-existing right, her right became absolute and she became the full owner of the suit property, in view of the provisions of Section 14(1) of the Act of 1956. This is the golden thread, which is clearly visible in all the above noted judgements, rendered by the Hon'ble Supreme Court to the effect that Section 14(1) of the Act of 1956 applies to the case, where the conferment of property on a Hindu widow was in lieu of her maintenance or in recognition of her pre-existing right. Thus, Section 14(2) of the Act of 1956, cannot be made applicable to the facts of the present case for the simple reason that the compromise Ex.P-1 did not grant the right of maintenance in favour of Smt.Jangir Kaur for the first time, but it simply recognised her pre-existing right.
So far as the judgement in Jawant Kaur's case (supra) cited by the learned senior counsel for the appellant is concerned, the same is not applicable in the present case. The reason is simple that it was a case of `Will'. The word `Will' is mentioned only under Section 14(2) of the Act of 1956. The word `Will' is not envisaged under Section 14(1) of the Act of 1956. So far as the possession is concerned, there is hardly any dispute that Smt. Jangir Kaur was coming in her settled possession before the enactment of the Act of 1956. It is an admitted position on the record of the case that the last male holder-Sucha Singh died intestate in the year 1952. In view of RSA No.278 of 1984 22 the law laid down by the Hon'ble Supreme Court in the cases noted above, even if Sucha Singh would have executed a Will against Smt. Jangir Kaur or placed restriction on her absolute right, to the extent of maintenance only, such a Will or restriction would have been invalid under the provisions of Section 14 of the Act of 1956. However, in the present case, there is neither any Will executed against nor restriction put by Sucha Singh against Smt. Jangir Kaur. It is only the compromise deed dated 30.12.1953 (Ex.P-1). Whatever little adverse effect this compromise deed Ex.P-1 might have, that stood washed away in view of the provisions of Section 14(1) of the Act of 1956.
It is pertinent to note her that before coming into force the Act of 1956, the parties were either governed by Hindu Law or by the custom. The sale could have been challenged by the member of coparcenary under the Hindu law, in case the suit land would have been ancestral one. Similarly, sale could have been challenged by any male descendant under the customary law, had it been the sale of the ancestral land. In the present case, it has neither been pleaded nor proved by the plaintiff-appellant that the suit land was ancestral in the hands of Sucha Singh qua the appellant. There is no such issue framed by the learned trial court.
The case of the plaintiff-appellant is based only on the compromise deed Ex.P-1. The contention of the learned counsel for the appellant that Smt.Jangir Kaur was given concession by them, while giving her the suit land, but with a rider that she will use the same only during her life time for the purposes of her maintenance and will not alienate the same, is wholly misplaced. The factual as well as legal position was different. In fact, it was Smt.Jangir Kaur, who gave to the plaintiffs a concession, not RSA No.278 of 1984 23 claiming her entire share to the extent of 50% in the land left behind by Sucha Singh. On the other hand, she thought it appropriate that only the suit land would be sufficient for her. Further, the sale of the (suit) land by a female after passing of the Act of 1956, cannot be challenged, she being the absolute owner thereof, under Section 14 of the Act of 1956. In this view of the matter, the suit of the plaintiff-appellant was not even maintainable.
In view of the observations made above, the first substantial question of law is unhesitatingly answered in the affirmative. It is held that Smt.Jangir Kaur had become the full owner under Section 14(1) of the Act of 1956 because the compromise deed Annexure P-1 was executed in recognition of her pre-existing right. However, the substantial questions of law at Nos. (ii), (iii) and (iv) are answered in the negative. It is held that the learned lower appellate court was right in holding in paras 14 and 16 of the impugned judgement that Smt. Jangir Kaur had become full owner of the suit land, in view of the provisions of Section 14(1) of the Act of 1956.
The present case would be governed under Section 14(1) of the Act of 1956.The finding of the learned lower appellate court regarding Karewa is also based on correct appreciation of the evidence and the same is upheld. It is further held that the learned trial court has proceeded on misconceived and erroneous approach, while relying upon the judgement of this court in Jaswant Kaur's case (supra), for the reason that the same was distinguishable on facts, being inapplicable to the peculiar facts and circumstances of the present case. The judgement in Badri Persad's case (supra) is also of no help to the appellant.
No other argument has been raised by the learned senior counsel for both the parties.
RSA No.278 of 1984 24
Viewed from any angle, the view taken by the learned lower appellate court is justified on facts as well as in law. No case for interference under Section 100 C.P.C. has been made out. The appeal is devoid of any merit and must fail.
Accordingly, the present appeal is dismissed, leaving the parties to bear their own costs.
23.12.2011 (RAMESHWAR SINGH MALIK) JUDGE