Himachal Pradesh High Court
Garib Dass & Others vs Respondents/Defendants on 2 April, 2015
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
.
RSA No. 478 of 2003-G
Judgment reserved on : 26.3.2015
Date of Decision : April 2 , 2015
Garib Dass & others ...Appellants/plaintiffs
Mulakh Raj & another
r to
Versus
... Respondents/defendants
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting? 1
Yes.
For the appellant : Mr. N. K. Thakur, Senior Advocate with Mr.
Rohit Bharoll, Advocate, for the appellants.
For the respondent : Mr. Bhupinder Gupta, Sr. Advocate, with
Mr. Ajit Singh Jaswal, Advocate, for the
respondents.
Sanjay Karol, J.
Plaintiffs' Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, stands admitted on the following substantial question of law:-
"Whether the impugned judgment and decree are vitiated because of mis-construction and mis-interpretation Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 17:56:24 :::HCHP 2
by the lower appellant Court of the provisions of Punjab Occupancy Tenure Act, 1952 and Hindu Widow Remarriage .
Act, 1856?"
2. The points which arise for consideration in the present appeal are: (i) What is the exact date of remarriage of Shankari.
(ii) Did such remarriage take place prior to 15.6.1952, the appointed day under the provisions of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952, (hereinafter referred to as the Vestment Act), (iii) Whether rights of Shankari, after the enactment of the Vestment Act, continued to be governed and regulated by the provisions of the Punjab Tenancy Act, 1887 (hereinafter referred to as the Tenancy Act) and Hindu Widows Re-marriage Act, 1856 (hereinafter referred to as the Re-marriage Act), (iv) Whether by virtue of the Vestment Act any pre-existing jural relationship of Shankari in the demised premises, stood extinguished, conferring absolute right of ownership and title upon her.
3. Hans Raj, Dalipa, Nasib Chand and Garib Dass, all sons of Gokal, as occupancy tenants on payment of rent, were possessing the land in question. With the death of Hans Raj on 18.2.1951, his widow Shankari remarried Nasib Chand. This was as per customary rights of "Chaddar - Andaji". Prior thereto, as sole surviving heir, she succeeded to the estate of Hans Raj. Shankari Devi got ::: Downloaded on - 15/04/2017 17:56:24 :::HCHP 3 mutation of succession recorded in the revenue record. By virtue of the provisions of the Vestment Act, Shankari Devi as an occupancy .
tenant, claimed absolute ownership of her right. Unpalatable as it were to other co-owners/co-tenants, they filed a suit for declaration, claiming themselves to be owners in possession of share of Hans Raj.
4. Based on respective pleadings of the parties, trial Court framed the following issues:
1. Whether the defendant No. 1 remarried in the year 1952? OPP
2. If issue No. 1 is proved whether plaintiff No. 1 and father of the plaintiff Nos. 2 to 4 Dalip Chand succeeded to the occupancy tenancy of the suit land after the death of Hans Raj, if so, its effect? OPP
3. Whether the suit is not maintainable in the present form? OPD
4. Whether the suit is barred by limitation? OPD
5. Whether plaintiffs have no cause of action, if so, its effect? OPD
6. Relief.
5. Relying upon the school leaving certificate (Ext. DW-
4/A), reflecting date of birth of Mulakh Raj, born to Shankari through the loins of Nasib Chand, to be 15.6.1956, trial court rejected date of remarriage of Shankari to be 13.4.1957. Reliance was also placed on entries of mutations dated 27.11.1952 (Ext. P-5) ::: Downloaded on - 15/04/2017 17:56:24 :::HCHP 4 and dated 14.11.1953 (Ext. P-6) while deciding issue No. 1 in favour of the plaintiffs. Assuming Shankari to have remarried in the year .
1952 and the right devolved upon her to be limited in nature, in view of provisions of the Re-marriage Act, trial court held Shankari to have lost all rights in the estate of deceased Hans Raj. Issue No. 2 was thus decided accordingly.
6. Hence plaintiffs' suit was decreed holding (i) Brothers of Hans Raj/their successor-in-interest to be owners in possession of share of Hans Raj; (ii) entries reflecting Shankari to be owner in possession to be null & void and (iii) restraining her from cutting and removing the trees; alienating the suit land till it is partitioned by metes and bounds.
7. Plaintiff's Civil Suit No. 226 of 1994, titled as Garib Dass & others vs. Mulakh Raj & others, decreed by the learned Sub Judge (II), Una, H.P., vide judgment and decree dated 7.11.2000 stands dismissed in terms of impugned judgment and decree dated 8.10.2003, passed by the learned District Judge Una, District Una, H.P., in Civil Appeal No. 190 of 2000, titled as Mulakh Raj & another vs. Garbi Dass & others.
8. Sh. Naresh Thakur, learned Senior Advocate made the following submissions: (i) Documents Ext. DW-4/A, Ext. P-5 and Ext.
P-6 clearly establishes that Shankari could not have remarried on ::: Downloaded on - 15/04/2017 17:56:24 :::HCHP 5 13.4.1957. (ii) With her remarriage, prior to the enforcement of the Vestment Act, all of her rights in the estate of Hans Raj stood .
extinguished. (iii) Assuming date of such remarriage is 13.4.1957, even then her rights would continue to be governed by the provisions of the Re-marriage Act and the Tenancy Act. In support, reliance is sought upon the following decisions: Chuhniya Devi vs. Jindu Ram, 1991 (1) Sim.L.C. 223; Commissioner of Income Tax, Lahore vs. Krishan Kishore, AIR 1940 Lahore 113; Giano Devi vs. Mangal Singh and others, 1985 Sim.L.C. 170.
9. On the other hand Sh. Bhupinder Gupta, learned Senior Advocate, has argued that (i) plaintiffs' failure in not discharging the onus of proving the exact date of remarriage of Shankari rightly resulted into dismissal of the suit. (ii) By virtue of the provisions of Vestment Act, Shankari acquired absolute right in the estate of her husband. In support, reliance is sought upon the following decisions:
Ratti Ram vs. Smt. Basanti & others, 1985 Sim. L.C. 10; Dipa and others vs. Ganga Datt and others, 1969 Current Law Journal 750 (Punjab and Haryana High Court); Bahadur Singh and others vs. Shangara Singh and others, (1995) 1 SCC 232, 1995 PLJ 256 (Supreme Court of India); Shrimati Pato and another vs. Shrimati Muli and another, 1970 P.L.J. 278 (Punjab & Haryana High Court);
Partap Kaur vs. Harchand Singh, 1970 P.L.J. 383 (Punjab & ::: Downloaded on - 15/04/2017 17:56:24 :::HCHP 6 Haryana High Court); Smt. Harbheji vs. Kare and others, 1977 P.L.J. 66 (Punjab & Haryana High Court); Mst. Karmi and others .
vs. Bachna and others, 1959 (Vol.LXI) The Punjab Law Reporter
313.
10. Appellants insist that Shankari was remarried in the year 1952, whereas respondents want the Court to believe that such marriage took place on 13.4.1957. Oral evidence of the parties, as is held by the lower appellate Court, does not conclusively establish the exact date of such remarriage. When the customary practice of "Chaddar - Andaaji" was performed is not clear.
11. School leaving certificate (Ext. DW-4/A) does not record date of remarriage of Shankari. It only reflects Mulakh Raj to be born on 15.6.1956. But then who got such entry recorded is not proved, making it inadmissible. It is not in dispute that Mulakh Raj, eldest son of Shankari, was born through the loins of Naseeb Chand.
Though in the revenue record (Ext. P-5 and P-6 - mutations effected on 27.11.1952 and 14.11.1953 respectively), it is recorded that Shankari remarried Naseeb Chand but even her, date of such marriage is neither recorded nor can it be inferred. It be only observed that these documents were merely tendered in evidence by the plaintiffs and not proved by any revenue officer. The lower appellate Court has rightly dealt with the admissibility and ::: Downloaded on - 15/04/2017 17:56:24 :::HCHP 7 evidentiary value of such document in paragraphs 24 and 25 of the judgment. Mere exhibiting of a document would not dispense the .
requirement of proving contents thereof, in accordance with law.
Even otherwise, factum of remarriage so reflected therein, is not recorded in any other revenue record effecting mutation of right of succession. Respondents have proved such documents from the year 1955-56 up to 1985-86 (Ext.D-1 to D-7).
12. Assuming that Shankari did remarry in the year 1952, even then date of such remarriage would continue to gain significance. Was it prior or after the enforcement of the Vestment Act, remains unanswered by the plaintiffs. No error can be found with the findings returned by the lower appellate Court. Thus findings returned by the lower appellate Court cannot be said to be erroneous, perverse or not borne out from incomplete and incorrect appreciation of material placed on record.
13. For better appreciation, relevant clauses of statutory provisions are reproduced as under:
Hindu Widows Re-marriage Act, 1856:
"Section 2: Rights of widow in deceased husband's property to cease on her remarriage - All rights and interests which any widow may have in her deceased husband's property by way of maintenance, or by inheritance to her husband or to his lineal successors, or by virtue of any will or testamentary ::: Downloaded on - 15/04/2017 17:56:24 :::HCHP 8 disposition conferring upon her, without express permission to remarry, only a limited interest in such property, with no .
power of alienating the same, shall upon her remarriage cease and determine as if she had then died; and the next heirs of her deceased husband, or other persons entitled to the property on her death, shall thereupon succeed to the same".
[Emphasis supplied] Punjab Tenancy Act, 1887:
"Section 59. Succession to right of occupancy. -
(1) When a tenant having a right of occupancy in any land dies, the right shall devolve -
(a) on his male lineal descendants, if any, in the male line of descent; and
(b) failing such descendants, on his widow, if any, until she dies or remarries or abandons the land or is under the provisions of his Act ejected therefrom; and
(c) failing such descendants and widow, on his widowed mother, if any, until she dies or re-marries or abandons the land or is under the provisions of this Act ejected therefrom;
(d) failing such descendants and widow, or widowed mother, or, if the deceased tenant left a widow or widowed mother, then when her interest terminates under clause (b) or clause (c) of this sub-section on his male collateral relative in the male line of descent from the common ancestor of the deceased tenant and those relatives:
Provided with respect to clause (d) of this sub section, that the common ancestor occupied the land.
Explanation. - For the purposes of clause (d), land obtained in exchange by the deceased tenant or any of his predecessors -in-interest in pursuance of the provisions of ::: Downloaded on - 15/04/2017 17:56:24 :::HCHP 9 sub-section (1) of section 58-A shall be deemed to have been occupied by the common ancestor if the land given for .
it in exchange was occupied by him.
(2) As among descents and collateral relatives claiming under sub-section (1) the right shall subject to the provisions of that sub-section, devolve as if it were land left by the deceased in the village in which the land subject to the right is situate.
(3) When the widow of a deceased tenant succeeds to a right of occupancy, she shall not transfer the right by sale, gift, or mortgage or by sub-lease for a term exceeding one year.
(4) If the deceased tenant has left no such persons as are mentioned in sub-section (1) on whom, his right of occupancy may devolve under that sub-section, the right shall be extinguished."
[Emphasis supplied] Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952:
"Section 3: Vesting of proprietary rights in occupancy tenants and extinguishment of corresponding rights of landlords. - Notwithstanding anything to the contrary contained in any law, custom or usage for time being in force on and from the appointed day:
(a) All rights, title and interest (including the contingent interest, if any, recognized by any law, custom or usage for the time being in force and including the share in the Shamilat with respect to the land concerned) of the landlord in the land held under him by any occupancy tenant, shall be extinguished and such rights, title and interest shall be ::: Downloaded on - 15/04/2017 17:56:24 :::HCHP 10 deemed to vest in the occupancy tenant free from all encumbrances, if any, created by the landlord:
.
Provided that the occupancy tenant shall have the option not to acquire the share in the Shamilat by giving a notice in writing to the Collector within six months of the publication of this Act or from the date of his obtaining occupancy rights whichever is later;
(b) the landlord shall cease to have any right to collect or receive any rent or any share of the land revenue in respect of such land and his liability to pay land revenue in respect of the land shall also cease;
(c) the occupancy tenant shall pay direct to the Government the land revenue accruing due in respect of the land;
(d) The occupancy tenant shall be liable to pay, and the landlord concerned shall be entitled to receive and be paid, such compensation as may be determined under this Act."
[Emphasis supplied]
14. It is not in dispute that Hans Raj had no male lineal descendant and as such his right devolved upon his wife Shankari.To this effect, right from the year 1955 - 56 mutation of succession was also got recorded in the revenue record (Ext. D-1 to D-7). Significantly there is no challenge to earlier entries as the suit was filed only in the year 1994. The fact that initially she tilled the land as an occupancy tenant is not in dispute.
15. It is no doubt true that by virtue of provisions of the Re-marriage Act and the Tenancy Act, right devolved upon Shankari ::: Downloaded on - 15/04/2017 17:56:24 :::HCHP 11 was restrictive in nature , but however by virtue of Section 3 of the Vestment Act, which is unambiguously clear, such restriction stood .
obliterated, conferring absolute right of ownership upon her. The provision starts with a non obstante clause. It not only extinguishes all rights of landlords but also confers right, title and interest in favour of an occupancy tenant. The vestment, automatic in nature, in favour of the occupancy tenant, free from all encumbrances, notwithstanding anything to the contrary contained in any law, custom or usage, is from the appointed day i.e. 15.6.1952 as stipulated under Section 2 (a)(i) of the Vestment Act.
16. The apex Court in KSL and Industries Limited vs. Arihant Threads Limited & others, (2015) 1 SCC 166, while dealing with the provisions of non obstante clause has held as under:
"47. In a later case [Solidaire India Ltd. Vs. Fairgrowth Financial Services Ltd., (2001) 3 SCC 71] the question arose in the context of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 and SICA. It was contended that in view of the special provisions contained in SICA no proceedings could have been initiated under the Special Court Act. The Court observed that though Section 32 of SICA contained a non obstante clause, there was a similar non obstante clause in Section 13 of the Special Court Act. The Court observed: (Solidaire case, SCC p.73, para 9) ::: Downloaded on - 15/04/2017 17:56:24 :::HCHP 12 "9. ... This Court has laid down in no uncertain terms that in such an event it is the later Act which must prevail."
.
This Court in Solidaire case (supra) approved the observations of the Special Court to the effect that if the legislature confers a non obstante clause on a later enactment, it means that the legislature intends that the later enactment should prevail. Further, it is a settled rule of interpretation that if one construction leads to a conflict, whereas on another construction two Acts can be harmoniously construed, then the latter must be adopted." [See: State of West Bengal & others vs. Associated Contractors, (2015) 1 SCC 32]
17. Also the apex Court in State (NCT of Delhi) vs. Sanjay, (2014) 9 SCC 772 has held as under:
"63. It is well known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions."
[See: Hussein Ghadially @ M.H.G.A. Shaikh & others vs. State of Gujarat, (2014) 8 SCC 425; Animal Welfare Board of India vs. A. Nagaraja & others, (2014) 7 SCC 547; Municipal Corporation of Greater Mumbai & others vs. Kohinoor CTNL Infrastructure Company Private Ltd. & another, (2014) 4 SCC 538; and Bharat Sanchar Nigam Limited vs. Telecom Regulatory Authority of India & others, (2014) 3 SCC 222.] ::: Downloaded on - 15/04/2017 17:56:24 :::HCHP 13
18. The Vestment Act does not merely regulate relationship of landlord and tenant but in fact deals with the alienation of .
agricultural land. It also includes transfer of the owner's interest in favour of an occupancy tenant.
19. There is nothing on record to establish the exact date of remarriage of Shankari. Equally it cannot be said that such remarriage did not take place prior to 15.6.1952. Her pre-existing jural relationship, in the demised premises, stood extinguished, conferring absolute right of ownership upon her by the provisions of the Vestment Act, being a special enactment, having an overriding effect over the provisions of both the Tenancy Act and the Re-
marriage Act. The Court below has correctly and completely appreciated and interpreted the material so placed on record, including the provisions of the statutes.
20. The apex Court in Bahadur Singh and others vs. Shangara Singh and others, (1995) 1 SCC 232, while dealing with the provisions in hand has held existence of any pre-existing jural relationship of landlord and tenant by operation of law, to be extinguished and formation of a totally new relationship as owner.
21. While dealing with the provisions which were paramateria, the Division Bench of Punjab & Haryana High Court in Partap Kaur (Supra) has also taken a similar view.
::: Downloaded on - 15/04/2017 17:56:24 :::HCHP 1422. Similar view has been taken by this Court in Ratti Ram (supra) as also Punjab & Haryana High Court in Dipa (supra), .
Shrimati Pato (supra); Harbheji (supra) and Mst. Karmi (supra).
23. The apex Court in Ram Swaroop & another vs. Mahindru & others, (2003) 12 SCC 436 has held as under:
"24. The High Court, in our opinion, by misinterpreting the provisions of the Hindu Widows Remarriage Act came to a wrong conclusion that on remarriage Smt. Gangi lost all her rights and title in the estate of her deceased husband. The main question which was raised before the High Court was that after the marriage of Smt. Gangi with Bala Ram (father of the appellant) all rights of the properties inherited by Smt. Gangi from her husband devolved on Shri Bala Ram and Bala Ram has been enjoying all the properties exclusively with the consent and knowledge of the other brothers. This important fact has been overlooked by the High court. The High Court also wrongly observed that the document relating to the transfer of the estate of Kanshi Ram in favour of Bala Ram does not appear to have been given effect to. The further observation of the High Court that Smt. Gangi on her marriage loses all her rights in the properties as per the provisions of the Hindu Widows Remarriage Act is baseless and incorrect. It is seen from the records that the Hindu Widows Remarriage Act, 1856 came to be enforced in the area in question w.e.f. 1-1-1950 vide the Merged States (Laws) Act, 1949 whereas the document of compromise deed was executed in the year 1932 signed by Smt. Gangi and other panchas and the father of the plaintiff and the other witnesses. Therefore, the provisions of the Hindu ::: Downloaded on - 15/04/2017 17:56:24 :::HCHP 15 Widows Remarriage Act, 1856 were not applicable to the area and the provisions of the Act cannot be made .
applicable retrospectively. In our opinion, the compromise deed does not debar her from losing all her rights in the properties and she was fully competent and entitled to inherit all the properties."
24. The apex Court in Cherotte Sugathan (Dead) through LRs. & others, vs. Cherotte Bharathi & others, (2008) 2 SCC 610 had the occasion to deal with the provisions of the Re-marriage Act and the Hindu Succession Act, 1956. The Court held as under:
"11. The Act brought about a sea change in Shastric Hindu Law. Hindu widows were brought on equal footing in the matter of inheritance and succession along with the male heirs. Section 14(1) stipulates that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, will be held by her as a full owner thereof. Section 24, as it then stood, reads as under:
"24. Certain widows remarrying may not inherit as widows. - Any heir who is related to an intestate as the widow of a predeceased son, the widow of a predeceased son of a predeceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has remarried."
12. Upon the death of Sukumaran, his share vested in the first respondent absolutely. Such absolute vesting of property in her could not be subjected to divestment, save and except by reason of a statute.
13. Succession had not opened in this case when the 1956 Act came into force. Section 2 of the 1856 Act speaks about a limited right but when succession opened on 2-8- ::: Downloaded on - 15/04/2017 17:56:24 :::HCHP 16 1976, the first respondent became an absolute owner of the property by reason of inheritance from her husband in terms .
of sub-section (1) of Section 14 of the 1956 Act. Section 4 of the 1956 Act has an overriding effect. The provisions of the 1956 Act, thus, shall prevail over the text of any Hindu Law or the provisions of the 1856 Act. Section 2 of the 1856 Act would not prevail over the provisions of the 1956 Act having regard to Sections 4 and 24 thereof.
14. The question posed before us is no longer res integra.
In Chando Mahtain v. Khublal Mahto, AIR 1983 Pat 33 the Patna High Court opined: (AIR p.34, para 6) "6. ... ... The Hindu Widows' Re-marriage Act, 1856 r has not been repealed by the Hindu Succession Act, 1956 but Section 4 of the latter Act has an overriding erect and in effect abrogates the operation of the Hindu Widows' Re-marriage Act, 1856. According to Section 4 of the Hindu Succession Act all existing laws whether in the shape of enactments or otherwise shall cease to apply to Hindus insofar as they are inconsistent with any of the provisions contained in this Act."
15. In Kasturi Devi vs. Dy. Director of Consolidation, (1976) 4 SCC 674 this Court categorically held that a mother cannot be divested of her interest in the deceased son's property either on the ground of unchastity or remarriage.
16. The Kerala High court in Thankam v. Rajan, AIR 1999 Ker 62 held that remarriage of the wife cannot be a ground for her losing right to succeed to her deceased husband's property.
17. Yet again this Court in Velamuri Venkata Sivaprasad v. Kothuri Venkateswarlu, (2000) 2 SCC 139 held: (SCC p.165, para 52) "52. Incidentally, Section 24 of the Succession Act of 1956 placed certain restrictions on certain specified widows in the event of there being a remarriage;
::: Downloaded on - 15/04/2017 17:56:24 :::HCHP 17while it is true that the section speaks of a predeceased son or son of a predeceased son but this in our view is a reflection of the Shastric Law on to .
the statute. The Act of 1956 in terms of Section 8 permits the widow of a Hindu male to inherit simultaneously with the son, daughter and other heirs specified in Class I of the Schedule. As a matter of fact she takes her share absolutely and not the widow's estate only in terms of Section 14.
Remarriage of a widow stands legalized by reason of the incorporation of the Act, of 1956 but on her remarriage she forfeits the right to obtain any benefit from out of her deceased husband's estate and Section 2 of the Act of 1856 as noticed above is very specific that the estate in that event would pass on to the next heir of her deceased husband as if she were dead. Incidentally, the Act of 1856 does not r stand abrogated or repealed by the Succession Act of 1956 and it is only by Act 24 of 1983 that the Act stands repealed. As such the Act of 1856 had its fullest application in the contextual facts in 1956 when Section 14(1) of the Hindu Succession Act was relied upon by Defendant 1."
We respectfully agree with the said view."
25. Principle laid down in Chuhniya Devi (supra) to the effect that Himachal Pradesh Tenancy and Land Reforms Act, 1972 is a complete Code in itself cannot be disputed. However, the Act specifically does not deal with the inter play between general and special enactment.
26. In Commissioner of Income Tax, Lahore (supra) Court was dealing with the definition of an owner in the context of the Income Tax Act. Where the corpus of the property was shown to belong to a Joint Hindu Family, an individual member of the family ::: Downloaded on - 15/04/2017 17:56:24 :::HCHP 18 could not be held to be an owner only because by way of custom he was appropriating major portion of the income to himself.
.
27. In Giano Devi (supra), Court was dealing with a case where undisputedly marriage had taken place prior to the enactment of the Vestment Act and the widow upon her remarriage claimed title by way of adverse possession.
28. Hence, in my considered view, there is no merit in the present appeal and the same is accordingly dismissed. It cannot be said that the judgment passed by the lower appellate Court is based on incorrect and incomplete appreciation of facts and material placed on record by the parties or that the same is perverse which has resulted into miscarriage of justice. Points arising for consideration and substantial question of law are answered accordingly.
Pending application(s), if any, also stand disposed of accordingly.
(Sanjay Karol), Judge.
April 2 , 2015 (PK) ::: Downloaded on - 15/04/2017 17:56:24 :::HCHP