Punjab-Haryana High Court
Anoop Kaur And Anr. vs Anup Singh Grewal on 15 November, 2002
Equivalent citations: AIR2003P&H241, (2003)133PLR451, AIR 2003 PUNJAB AND HARYANA 241, (2003) 4 ALLINDCAS 944 (P&H), 2003 (4) ALLINDCAS 944, (2003) 1 HINDULR 480, (2003) 2 MARRILJ 336, (2003) 1 PUN LR 451, (2003) 2 RECCIVR 51, (2003) 94 REVDEC 384
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. This judgment will dispose of two Regular Second Appeals, bearing Nos.2437 of 1984, titled as Anoop Kaur and Anr. v. Anup Singh Grewal and 2894 of 1984, titled as Anup Singh Grewal v. Anoop Kaur another, as these have been filed against the judgment and decree dated 30.4.1984, passed by the learned Additional District Judge, Ludhiana, vide which the appeal filed by Anoop Kaur and Saroop Kaur (defendants herein) was partly allowed and the judgment and decree passed by the learned trial Court in favour of Anup Singh Grewal (plaintiff herein) regarding the whole property in question has been partly modified and parties to the suit have been held to be entitled to the property in question in equal shares i.e., one third share each.
2. The brief facts of the case are that one Mehtab Singh was owner in possession of the property in question mentioned in detail in para No. 1 of the plaint, which comprises of land measuring 1 bigha 8 biswas 41.2 biswas is and one plot. He was having his wife Partap Kaur, one son Anup Singh Grewal, plaintiff, and two daughters Anoop Kaur and Saroop Kaur, defendants. On 20.7.1939, he executed a registered will in favour of his wife Partap Kaur, bequeathing his entire property to her as limited estate with a specific condition that she will not have any right to alienate the same and with a further condition that after her death, his son Anup Singh, who was minor at the time, will become the absolute owner of the entire property. When the said will was executed all the three children of Mehtab Singh were minor. He died on 13.4.1967. By that time, he had married all of his children. After his death, his wife Partap Kaur remained alive for about ten years and died on 9.6.1977. After her death the mutation of the property in question was got sanctioned by her two daughters in their favour on the basis of a Will dated 21.5.1976 alleged to have been executed by her in their favour. Thereupon, Anup Singh Grewal the only son of Mehtab Singh filed the present suit for declaration to the effect that he is owner in possession of the property in question which was ancestral property in the hands of his father Mehtab Singh. He alleged that his father executed a registered Will in favour of his mother Partap Kaur, vide which she acquired only limited ownership in the property with a specific condition that she will not alienate the same in any manner and after her death, he will become absolute owner of the same. The plaintiff further alleged that after the death of his mother, he became absolute owner of the property and she did not execute any Will in favour of the defendants. She was not even c0mpetent to execute any such Will because she was not the absolute owner of the property in question and she was having only limited right in the same.
3. This suit was contested by the defendants. They alleged that their mother Partap Kaur became absolute owner of the property after the death of their father on 13.4.1987 and was fully competent to alienate the same. They denied that the nature of the property was ancestral. They also alleged that the Will dated 20.7.1939 is illegal and invalid. Their mother executed a Will in their favour on 21.5.1976. Because of the services rendered by them she bequeathed the entire property in their favour. Therefore, it was pleaded that the suit filed by the plaintiff is liable to be dismissed.
4. On the pleadings of the parties, following issues were framed.
1. Whether the land in dispute constitutes a Joint Hindu Family Property qua the plaintiffs and the defendants? OPP
2. Whether Mehtab Singh executed any valid will in favour of Partap Kaur and if so to what effect? OPP
3. Whether the aforesaid Partap Kaur executed a valid will dated 21.5.1976 in favour of the defendants and if so, to what effect? OPD
4. Whether the plaintiff is estopped from filing this suit by his own act and conduct? OPD
5. Relief.
5. On issue No. 1 the learned trial court held that the property in dispute was the self acquire property of Mehtab Singh. On issue No. 2 it was held that the Will dated 20.7.1939 (Ex.P-2) was duly executed vide which the limited rights in the property were bequeathed by the testator in favour of Partap Kaur with a specific condition that she will not be entitled to alienate or transfer the property in question in any manner and that after her death, the property will absolutely vest in Anup Singh plaintiff. Regarding the Will dated 21.5.1976 (Ex.D-1) alleged to have been executed by Partap Kaur in favour of the defendants, it was held that the execution of the said Will was not proved as neither any attesting witness nor scribe of the Will was examined. The Will was held to be unnatural and surrounded by suspicious circumstances. After recording the aforesaid findings on material issues, the suit filed by the plaintiff was decreed by the learned trial court and he was held to be absolute owner in possession of the property in dispute.
6. Against the aforesaid judgment the defendants filed appeal which was partly allowed and the judgment of the learned trial court was partly modified. It was held that the plaintiff as well as the defendants are entitled to inherit the property in dispute in equal shares. The learned first appellate court confirmed the findings regarding the nature of the property in question being self acquired property of Mehtab Singh and the Will dated 21.5.1976 alleged to have been executed by Partap Kaur in favour of her daughters. But the finding on issue No. 2 regarding the Will dated 20.7.1939 has been modified. Though, the execution of this Will as well as its contents have been held to be duly proved, but it was held that the limited ownership conferred by this Will on Partap Kaur ripened into full ownership in view of Section 14(1) of the Hindu Succession Act (hereinafter referred to as the Act). It was farther held that when Partap Kaur died, she was holding the estate of Mehtab Singh as absolute owner and not as a limited owner, therefore, after her death, the property in dispute was to be inherited by her three children in equal shares.
7. Again this judgment the present two Appeals have been filed one by the defendants (R.S.A. No. 2437 of 1984) by which they are challenging the findings recorded by the Courts below pertaining to the Will dated 21.5.1976 alleged to have been executed by Partap Kaur in their favour. The Second appeal has been filed by the plaintiff (R.S.A. No. 2896 of 1984) by which he is challenging the findings recorded by the learned first appellate court regarding the foil ownership rights of Partap Kaur under the Will dated 20.7.1939.
8. I have heard learned counsel for both the parties. As far as the appeal filed by the defendants is concerned, there is no merit in the same. A pure finding of fact has been recorded by both the Courts below and it has been held that the execution of the Will dated 21.5.1976 has not been proved as neither its scribe nor its attesting witness has been examined. It has been observed that this Will is surrounded by suspicious circumstances and is unnatural. These findings recorded by the Courts below regarding the validity of the Will dated 21.5.1976 are pure findings of facts. I find no reason to differ with the same. Hence, the appeal filed by the defendants is dismissed as no other point has been raised in this appeal.
9. In the appeal filed by the plaintiff, learned counsel for the appellant submitted that as far as the execution of the Will dated 20.7.1939 is concerned, both the Courts below have held that its execution as well as its contents have been duly proved. The only dispute is about its effect and the only question to be determined in the present appeal is as to whether it confers the limited or the full ownership in the property in dispute on Par-tap Kaur. Learned counsel canvassed that case of the plaintiff is governed by Section 14(2) of the Act and not by Section 14(1) of the Act. For determining this question it will be necessary to refer some portion of the Will dated 20.7.1939 executed by Mehtab Singh in favour of his wife Partap Kaur. It has been mentioned in this Will that "After my death, my wife Smt. Partap Kaur would be sole owner of the property mentioned in this Will and my wife will have no right to alienate the property. The entire responsibility of the brining up education and marriage of my minor daughters would be on her and after the death of my wife Partap Kaur my son Anup Singh would be the absolte owner of all the property." It was also stated by the testator that he executed the said will for maintenance of his family, which consists of his minor son and two minor daughters. The reading of the Will as a whole makes it clear that the testator Mehtab Singh was intending to give the limited right in the property to his wife Partap Kaur for her life time, so that she can maintain the minor children and perform the marriages of the minor daughters. It was also the intention of the testator as appears from the Will that after the death of Partap Kaur the entire property should go to his only son Anup Singh. There is another fact, which has also to be kept in mind while answering the aforesaid question i.e,. after execution of the Will the testator Mehtab Singh remained alive for a long time. He died on 13.4.1967. during his life not only his children became major but they were provided good education. The son joined the Military service one daughter, namely Saroop Kaur joined the service in Police Department and the other daughter namely Anoop Kaur, became Doctor. The son as well as the daughters were married in good families by their father Mehtab Singh. The Will was to take effect on the death of Mehtab Singh on 13.4.1967. On that date, all his children were happily settled. By the said Will, Partap Kaur inherited only the limited estate of deceased Mehtab Singh which was with a further condition that after her death, the entire property will go to the plaintiff. In the aforesaid facts and circumstances learned counsel for the plaintiff canvassed that under the aforesaid Will, only limited right of ownership was conferred on Partap Kaur for her life time and after her death the entire property was to be owned by the plaintiff. He submitted that no pre-existing right in the property was existing in favour of Partap Kaur and Section 14(1) of the Act will not apply in the present case. He submitted that there is no mention in the Will that Partap Kaur will have the property in lieu of her maintenance. He further submitted that the interpretation given by the learned first appellate Court to the contents of the Will is totally erroneous and the same is not sustainable in the eyes of law.
10. On the other hand, learned counsel for the defendants has stated that the findings recorded by the learned first appellate court on issue No. 2, do not require any interference, as the limited right conferred on Partap Kaur ripened into absolute ownership in view of Section 14(1) of the Act.
11. I have considered the submission made by learned counsel for the parties and have perused the records. I am of the opinion that the view taken by the learned first appellate court on this aspect is erroneous and the judgment of the learned trial court in this regard has been wrongly reversed. Undisputedly, the rights conferred under the aforesaid Will on Partap Kaur were limited, There was a specific condition in the Will that she will not alienate the property inherited under the said Will. There was also a specific condition that after her death the property will absolutely vest in the plaintiff. Thus, initially what was conferred upon Partap Kaur was a limited estate. There as no pre-existing right vesting in her when the Will in question become effective. The question of ripening the said limited estate into the full ownership under Section 14(1) of the Act does not arise. The case in hand does not fall under Section 14(1) of the Act because Partap Kaur was not given the property in lieu of maintenance or by way of a gift. For the first time in the Will the right was created and that became effective on the death of Mehtab Singh. The case of plaintiff is squarely covered under Section 14(1) of the Act and the limited ownership conferred on Partap Kaur will not ripen into full ownership. The learned first appellate court has proceeded on the wrong reasoning while reversing the findings of the learned trial court. The only reason given in the judgment is that since the testator remained alive for a long period and he did not change the terms of the Will, therefore, the possibility of limited estate ripening into full ownership cannot be ruled out as he was aware of the fact that such limited ownership will be converted into full ownership under the Act, which came into force in the year 1956. This reasoning given by the learned first appellate Court is wholly erroneous. No such inference can be drawn in the present case, particularly when the intention of the testator while executing the Will is very clear. The testator was only worried about the marriages of his minor daughters. He was very clear in his mind that his entire estate should go to his only son Anup Singh. What he has conferred to his wife was the limited ownership with an object to maintain his children. Since in the present case, the testator remained alive and during his life time, he not only provided good education to his children but all of them were married and settled in life by him. Keeping in view these facts, what Partap Kaur got under the aforesaid Will after the death of her husband was the limited ownership right which never ripened into full ownership as contemplated in Section 14(1) of he Act. She was neither having any pre-existing right in the property nor any pre-existing right was recognised under the Will. Under the similar circumstances, the Full Bench of this Court in Jaswant Kaur v. Major Harpal Singh and Ors., (1977)79 P.L.R. 523 has held that where intention of the testator is very clear in the Will vide which only the restricted estate was created such limited estate will not ripen into full ownership under Section 14(1) of the Act. Such restricted estate created by Will, gift, decree, award or any other instrument prior to the commencement of the Act, shall not be enlarged into full ownership under Sub-Section (1) and that a restricted estate can be created in favour of a female even after coming into force of the Act. It has been held that if a case is falling within the provisions of Sub-section (2), then subsection (1) will not apply. In the present case both the conditions of applicability of Subsection (2) are present i.e., that the right of the female to the property is created by an instrument in writing and that the said instrument contains such terms as create restricted estate. The case of the plaintiff squarely falls under the provisions of Sub-section (2). Therefore, Sub-section (1) will not be applicable at all. Thus, I am of the opinion that only limited ownership was created in favour of the Partap Kaur vide Will dated 20.7.1939 and after her death the plaintiff shall become full owner of the property in terms of the Will,
12. In view of the above discussion, the appeal filed by Anup Singh Grewal plaintiff (R.S.A. No. 2896 of 1984) is allowed with no order as to costs. The judgment and decree passed by the learned first appellate court is set aside and the judgment and decree passed by the learned trial court is restored.