Punjab-Haryana High Court
Surjit Singh vs Darshan Singh & Ors on 17 November, 2012
Author: Jaswant Singh
Bench: Jaswant Singh
RSA No.351 of 2012(O&M) #1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
RSA No.351 of 2012(O&M)
Date of Decision:-November 17, 2012
Surjit Singh.
......Appellant.
Versus
Darshan Singh & Ors.
......Respondents.
AND
RSA No.803 of 2012(O&M)
Date of Decision:-November 17, 2012
Surjit Singh & Ors.
......Appellants.
Versus
Darshan Singh & Ors.
......Respondents.
CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH
Present:- Mr. P.K. Gupta, Advocate for the appellants.
Mr. Harish Goyal, Advocate for Caveator/respondent no.1.
***
JASWANT SINGH, J.
This order shall dispose of both the aforementioned regular second appeals as the same have arisen out of the common judgments passed by both the courts below whereby suit filed by the plaintiff RSA No.351 of 2012(O&M) #2# Sukhdev Singh against defendants Jagir Kaur and three others namely Surjit Singh, Hari Singh and Lakhmir Singh for permanent injunction and declaration was partly decreed vide judgment and decree dated 16.10.2008 passed by the Civil Judge(Jr. Divn.), Nabha and against the same, two appeals were preferred before the learned District Judge, Patiala one by Sukhdev Singh plaintiff and the second by LR of Jagir Kaur and Ors i.e. the defendants. Appeal filed by Plaintiff/respondent Sukhdev Singh was accepted whereas the appeal filed by LR of Jagir Kaur & Ors.(defendants) was dismissed vide common judgment dated 17.09.2011 and thus the judgment and decree of the learned trial Court was modified. Hence, the present regular second appeals by defendants.
In brief, the facts of the case are that Partap Singh, Sukhdev Singh and Mohinder Singh all sons of Gajjan Singh were three brothers. Partap Singh was married to Jagir Kaur(original defendant no.1 now deceased) whereas Sukhdev Singh was married to Lakhmir Kaur. Partap Singh died somewhere in the year 1960, leaving behind his widow Jagir Kaur and at that point of time, his brother Sukhdev Singh was already married with Lakhmir Kaur. It is alleged that Kareva marriage of Jagir Kaur was effected with Sukhdev Singh(real brother of her deceased husband Partap Singh) by giving Pagri on the bhog ceremony of the deceased Partap Singh.
It is asserted by Sukhdev Singh plaintiff(real brother of Partap Singh) that some differences had surfaced between him and Jagir Kaur and thereafter, with intervention of some respectables a compromise was effected and land measuring 41 kanals 5 marals was given to Jagir RSA No.351 of 2012(O&M) #3# Kaur(defendant no.1) for her maintenance and Tamniknama(deed of settlement) Ex.P-1 was executed. The same was got registered and was duly accepted by Jagir Kaur. It was alleged that land was given purely for her maintenance and the proceeds thereof were to be used by her with a condition that Jagir Kaur will remain Chaste/good character. Thus, no right to alienate the property was given to Jagir Kaur and same was specifically mentioned in Tamniknama. It was further mentioned in Tamniknama that after death of Jagir Kaur the suit land shall revert to plaintiff and his heirs. It was further alleged that it was provided in the Tamniknama that if any child is born to Jagir Kaur from the loins of plaintiff Sukhdev Singh, that child shall be entitled to share in the property according to law of the land.
On the basis of the said Tamniknama(Ex.P-1), mutation no.37 was sanctioned and incorporated in the revenue record but during the pendency of the suit, Jagir Kaur gifted 2/5th share out of the suit property to defendant no.2 which is her own nephew Surjit Singh vide registered gift deed no.2345 of 28.8.2000. However, defendant no.2 acting as a power of attorney holder of Jagir Kaur(defendant no.1) sold the 2/5th share vide sale deed dated 5.9.2000 in favour of his brothers namely Hari Singh and Lakhmir Singh(defendant nos.3 & 4 respectively) and remaining 1/5th share in favour of one Manjit Singh son of Gurmail Singh(defendant no.5) vide sale deed dated 6.9.2000.
Sukhdev Singh plaintiff had brought a suit for permanent injunction against the defendant Jagir Kaur above said three alienatees restraining them from alienating in any manner the suit land measuring RSA No.351 of 2012(O&M) #4# 41 Kanals 4 marlas in favour of any person whatsoever on the basis of the allegations as mentioned above. Further the said sale deeds were challenged on various grounds which were detailed in the plaint itself and it was finally prayed that the suit be decreed. It was also asserted by the plaintiff that during the pendency of the suit, Jagir Kaur had died and in terms of Tamniknama land has reverted back to the plaintiff.
Upon notice, Jagir Kaur(original defendant no.1) filed a written statement admitting that she is the second wife of Sukhdev Singh, who alleged that Sukhdev Singh is under the influence of his first wife and it was also asserted that Tamniknama was given regarding the suit land and she is the absolute owner of the property.
Defendant no.2 filed a separate written statement whereby he denied the knowledge of compromise between Jagir Kaur and Sukhdev Singh and he asserted that Jagir Kaur was the absolute owner of the property and thus she had the right to sell off the same in any manner she felt appropriate.
Remaining defendants filed their separate joint written statement and it was asserted that Jagir Kaur had become absolute owner by virtue of Section 14(1) of the Hindu Succession Act and thus she was competent to alienate the same to any person she deemed appropriate.
Replication was filed wherein the entire contents of plaint were reiterated and denied that of the written statements.
From the pleadings of the parties issues were framed. Both sides lead evidence in support of their respective claims and after appreciating their evidence learned trial Court had partly decreed the suit RSA No.351 of 2012(O&M) #5# vide its judgment and decree dated 16.10.2008.
Against the said judgment, two appeals were preferred before the learned District Judge, Patiala one by Sukhdev Singh and the second by LR of Jagir Kaur and Ors. i.e. the defendants. Appeal filed by Plaintiff Sukhdev Singh was accepted whereas the appeal filed by LR of Jagir Kaur & Ors.(defendants) was dismissed vide common judgment dated 17.09.2011 and thus the judgment and decree of the learned trial Court was modified.
I have heard learned Counsel for the parties and have also gone through the case file carefully with their able assistance.
Learned Counsel for the appellant has argued that it is an admitted fact among the parties that the property in question was given to Jagir Kaur(original defendant no.1) in lieu of maintenance as per recital contained in Tamniknama dated 25.07.1960 Ex.P-1 and she came in possession of the land, therefore, in view of Section 14(1) of the Hindu Succession Act, Jagir Kaur had become the absolute owner in possession of the property in question. It was further argued that even though, there is a clause of restriction mentioned in Tamniknama but same is ineffective because as per Section 14(1) of the Hindu Succession Act, she is a owner of the property and plaintiff Sukhdev Singh is nobody to challenge her ownership. In support of his contention learned Counsel for the appellant has relied upon AIR 1987 Supreme Court 2251 Smt. Gulwant Kaur & Anr. Vs. Mohinder Singh & Ors., AIR 1996 Supreme Court 855 Nazar Singh & Ors. Vs. Jagjit Kaur & Ors., AIR 2000 Supreme Court 1908 Balwant Kaur & Anr. Vs. Chanan Singh RSA No.351 of 2012(O&M) #6# & Ors. and AIR 2000 Supreme Court 500 Santosh & Ors. Vs. Saraswathibai & Anr.
On the other hand, learned Counsel for the plaintiff/respondent no.1/caveator has vehemently contended that the learned lower Appellate Court has rightly decreed the suit of the plaintiff and no perversity can be found in the judgment and decree passed by court below.
After hearing learned Counsel for the parties and perusing the record, this Court is of the considered view that the present appeal is devoid of any merit and the same deserves to be dismissed.
The prime most question that requires adjudication in the present case is "Whether Jagir Kaur can be termed to be a legally wedded wife of Sukhdev Singh plaintiff or not". It is an admitted fact among the parties that Jagir Kaur was married with Partap Singh and at that time Sukhdev Singh was married with Lakhmir Kaur. It is further admitted that after death of Partap Singh, second marriage of Jagir Kaur was solemnized with plaintiff Sukhdev Singh during the lifetime of his first wife. It has been specifically averred by plaintiff in para no.1 of the plaint that Jagir Kaur is his second wife and this fact has been admitted by Jagir Kaur in her written statement filed on 13.5.1999 and she had also admitted that first wife of plaintiff Sukhdev Singh was alive. It would be appropriate to reproduce the exact wording of defendant Jagir Kaur's written statement for proper appreciation:-
" I That para no.1 of the plaintiff is admitted to the extent that the defendant is the second wife of the plaintiff and no RSA No.351 of 2012(O&M) #7# child was born from the loins of the plaintiff from the defendant. It is denied that the defendant could not pull on with the plaintiff. In fact the plaintiff is puppet in the hands of his first wife and he deserted the defendant without any reasonable cause."
Hindu Marriage Act, 1955 had come into force on 18.5.1955 and Section 4 of this Act has a overriding effect on the customs or usage etc. The Section reads as under:-
" 4 Overriding effect of Act- Save as otherwise expressly provided in this Act:-
(a) any text rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act.
(b) Any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act."
Section 5 of the Act lays down conditions of a valid marriage and condition no.5(i) requires that neither party to the petition has a spouse living at the time of marriage. Any marriage solemnized in contravention of this provision is void marriage and nullity under the provisions of Section 11 of the Act.
As stated earlier, it is an admitted fact between the parties RSA No.351 of 2012(O&M) #8# that during the lifetime of first wife of Sukhdev Singh namely Lakhmir Kaur, marriage was arranged by way of Pagri custom with Jagir Kaur. In the absence of specific plea and evidence regarding the fact that there was a divorce between Sukhdev Singh and Lakhmir Kaur, the second marriage performed between the parties namely Sukhdev Singh and Jagir Kaur cannot be termed to be a valid marriage. Even though Sukhdev Singh admitted that he married twice by way of pagri ceremony with Smt. Jagir Kaur this does not entitle or validate the marriage of Jagir Kaur with Sukhdev Singh. The legislature, in its wisdom, has rightly barred second marriage between the parties without their being any dissolution as provided under the Act. It is not the case of either parties that there was a custom prevalent among the parties, whereby second marriage was held to be a valid one. In the absence of proof regarding dissolution of first marriage and custom validating the second marriage, this Court has no hesitation in holding that the parties are covered strictly by the provisions of Hindu Marriage Act and thus the marriage between Sukhdev Singh and Jagir Kaur has to be held to be devoid in the eyes of law. I am supported by the decision passed in Mohan Lal Sharma Vs. Parveen 2009(4) RCR Civil 749 whereby it has been held that where wife has contracted second marriage during the subsistence of her first marriage, it is void and nullity and there is no need of setting it aside.
It has further come into evidence that Jagir Kaur had stayed in the house of plaintiff Sukhdev Singh for two years only and no issue was born out of the cohabitation among them. Thus, this fact also goes a long way to show that there was no relationship as husband and wife RSA No.351 of 2012(O&M) #9# among the parties so as to have any semblance of marriage and rather this fact shows that a pagri ceremony was only an arrangement among them so that the life of Jagir Kaur is not ruined. Thus the question has to be answered in favour of plaintiff to the effect that marriage was not legal.
Now the second question that arises for consideration before this Court is "Whether through Tamniknama Ex.P-1 Jagir Kaur (original defendant no.1) has become the absolute owner of the property measuring 41 Kanals 5 marlas although the same was given by Sukhdev Singh for maintenance only".
Both the parties have relied upon this Tamniknama Ex.P-1 and the due and valid execution of this document is not in question at all. It would be important to enumerate the conditions that were set out in this document for proper appreciation of the question involved in the present case:-
(a) Smt. Jagir Kaur is second wife of Sukhdev Singh, plaintiff.
(b) A compromise has been effected between them vide which land 41 Kanals 5 marlas was given to Smt. Jagir Kaur for maintenance during her life time and she has been given all her rights with regard to the property of Smt. Jagjit Kaur qua her maintenance.
© Smt. Jagir Kaur will keep the possession of this land with her during her lifetime and take the benefit by cultivation.
(d) she will not alienate the same by say of mortgage, sale, exchange or any other mode of transfer.
(e) After death of Smt. Jagir Kaur this land will return to Sukhdev Singh or after him to his progeny.
(f) It was agreed between Sukhdev singh and Smt. Jagir Kaur that this right of maintenance over suit land has been given to her uptill she remained chaste and of RSA No.351 of 2012(O&M) #10# good character.
(g) In case any child born to Smt. Jagir Kaur from the loins of Sukhdev Singh then such child shall be entitled to the property as per law. However, if Sukhdev Singh, pre-deceased Smt. Jagir Kaur then she will not be entitled to this land as an inheritance."
A bare reading of Ex.P-1 and the conditions that have been enumerated above, makes abundantly clear that under a compromise Jagir Kaur was given right to maintenance of the suit land with a view that she will remain of good character and she will not alienate the land by way of sale, mortgage or any other mode of transfer. Thus, suit land was given to her for her maintenance only during her lifetime and no intention was there to make her the absolute owner.
As held earlier, Jagir Kaur was not a legally wedded wife of Sukhdev Singh plaintiff/respondent and her marriage with him was void. Thus, Sukhdev Singh was not under obligation to maintain Jagir Kaur and Jagir Kaur had no right to ask for maintenance from Sukhdev Singh under Section 18 of the Hindu Adoption and Maintenance Act. As per the Hindu Adoption & Maintenance Act(hereinafter referred to as the Maintenance Act), only a wife who is recognised under law is entitled to seek maintenance from her husband. Thus, as per the Maintenance Act Jagir Kaur could claim maintenance from Sukhdev Singh only if she was married to him. However, as held earlier, their marriage was void. Thus, it cannot be said that the property given under Tamniknama was for maintenance as provided under the Maintenance Act & rather it was a compromise only.
The basic import and intent of Section 14 of the Hindu RSA No.351 of 2012(O&M) #11# Succession Act was due to the reason that Hindu society is a secular and flexible society and the same has been changing over the years. Hindu Law has never remained static and has been adapting in accordance to the needs of the society. Prior to the coming into force of the Hindu Succession Act, limited rights were given to a widow to a property and after the enforcement of the Hindu Succession Act, new rights were created, so as to empower a women and give her more sweeping interest in the estate of her husband. Similarly, the maintenance of a women was considered to be of prime most importance and thus, she was given a right to seek maintenance from her husband, if at all the marriage did not work out. After the enforcement of the Hindu Succession Act, this limited right to the property of a husband were converted into full ownership rights and hence, a Hindu women who was given a property for maintenance only was held to be an absolute owner of the property. Thus, the object of Section 14 of Hindu Succession Act, 1955 is two fold. Firstly, to remove the disability of a female to acquire and hold property as owner, secondly, to convert the estate already held by a women on the date of commencement of the Act as a limited owner into her absolute estate. In the case of death intestate, the property devolves by succession on her own heirs. This section thus deals, firstly, with the property possessed by a female Hindu on the date of commencement of Act with some interest in the property and secondly, property acquired by her either before or after the commencement of this Act. It is laid down that all such properties shall be held by her as a full owner and not as a limited owner, notwithstanding rule of Hindu law to the contrary unless RSA No.351 of 2012(O&M) #12# such property is acquired by her by way of caveat or under a Will or any other instrument or under a decree or order of a Civil Court or under an award prescribing only a restricted estate in such a property.
Hence, the main provisions of Section 14 of the Hindu Succession Act, with its explanation, states that any property which includes both movable and immovable property possessed by a female Hindu, whether she acquired it by inheritance or devise or in partition or in lieu of maintenance or arrears of maintenance or by gift from any person(whether the relative or not) either before, at or after her marriage or by her own skill or exertion or by purchase or prescription or in any other manner whatsoever and also any such property held as Istridhan immediately before the commencement of the Act, she thereafter be held as full owner thereof and not a limited owner. Section 14(2) applies to instruments, decrees, awards, gifts etc which creates an independent or new title in favour of female for the first time.
As per Mayne of Hindu Laws 15th edition Page 1171, " On a reading of Sub Section (1) with explanation, it is clear that whereever the property was possessed by a female Hindu as a limited estate, it would become on and from the date of commencement of the Act her absolute property. However, if she acquires property after the Act with a restricted estate, sub Section (2) applies. Such acquisition may be under the terms of a gift, will or other instrument or a decree or order or award."
Thus it is clear from the above mentioned discussion, that Section 14(1) of the Act is attracted to only those cases where a Hindu female has been in possession of the property as a limited owner on coming into force of the Hindu Succession Act. Hon'ble Supreme Court in 2010(3) Apex Court Judgment 587 (SC) Gaddam RSA No.351 of 2012(O&M) #13# Ramakrishnareddy & Ors. Vs. Gaddam Rami Reddy & Anr., has discussed a similar matter. In that case husband namely G. Pullareddy executed a registered deed of gift giving a limited right in his share of the properties of his wife Smt. Gaddam Sheshamma. In terms of the gift deed wife was given a limited right of alienation and after her death the property was devolved in G. Ramireddy. G. Pullareddy(husband) died in or about 1957. Thereafter his widow Sheshamma executed a deed of relinquishment which was challenged. After death of Sheshamma G. Ramireddy filed a suit for possession of the suit properties for mesne profits. The defendants of the said suit denied his claim and asserted their independent right to the properties and asserted that Sheshamma had preexisting right of maintenance in the properties of husband G. Pullareddy and the life estate created under the gift deed had blossomed into a absolute estate. Hon'ble Supreme Court held that wife had no preexisting right and she acquired the properties as a limited owner under the gift deed dated 21.12.1952 and the same do not blossom into full ownership. The ration decidendi laid down in Gaddam Ramakrishnareddy (supra) squarely covers the case in hand.
In fact, in the case in hand Jagir Kaur, as held earlier, had no preexisting right over the property as she was not legally wedded wife of Sukhdev Singh and Tamniknama(Ex.P-1) had given a limited right to her as per terms and conditions mentioned therein. Thus, she was only a limited owner of the property and her ownership had never blossomed into absolute ownership. The learned lower Appellate Court has rightly held that after death of Jagir Kaur, during the pendency of the suit, the RSA No.351 of 2012(O&M) #14# property has to revert back to plaintiff Sukhdev Singh, as Section 14(2) of the Hindu Succession Act comes into operation and not Section 14(1) as argued by the learned Counsel for the appellant. The judgments that have been relied upon by the learned Counsel for the appellant are distinguishable as all these judgments have their own facts and further in view of the clear position of law discussed by this Court in the above referred judgment, this Court is of the considered view that Jagir Kaur had limited estate and she had no right to transfer suit property and thus was not competent to make impugned allegations. Learned Counsel has vehemently argued that the position of law is that after the commencement of the Hindu Succession Act, a Hindu female having a limited estate becomes the absolute owner and the judgments referred by him are applicable, is misconceived as it is proved from record that Jagir Kaur was not the wife of Sukhdev Singh under the eyes of law and thus, the Tamniknama Ex.P-1 was only a compromise and Jagir Kaur was to adhere to the terms and conditions of the compromise strictly and thus no alienation could have been made by her. Thus, the said judgments are of no help and do not further the case of appellants.
In view of the above, finding no question of law much less substantial question of law arising for determination in both the present second appeals, the same are hereby dismissed.
( JASWANT SINGH ) JUDGE November 17, 2012 Vinay