Punjab-Haryana High Court
Banarsi Dass (Deceased By L.R.'S) And ... vs Madho Ram on 2 July, 1997
Equivalent citations: AIR1998P&H98, (1998)118PLR293, AIR 1998 PUNJAB AND HARYANA 98, 1997 HRR 512, (1998) 1 HINDULR 377, (1997) 2 MARRILJ 392, (1998) 118 PUN LR 293, (1997) 4 RECCIVR 328
Author: Sarojnei Saksena
Bench: Sarojnei Saksena
ORDER Sarojnei Saksena, J.
1. Defendants, Banarsi Dass and Sadhu Ram, have preferred the Regular Second Appeal against the judgment of Shri N.K. Jain, Additional District Judge, Ambala dated 19-10-1979 whereby allowing the appeal he has passed a preliminary decree for partition of the property in favour of the plaintiff-respondent holding him entitled to 1/3rd share in the disputed property.
2. Uncontroverted facts are that the plaintiff-respondent Madho Ram and defendant-appellants Banarsi Dass and Sadhu Ram are sons of deceased Ram Parshad; Smt. Mohni Devi, their mother, who died few months after filing this suit by plaintiff-respondent. House Nos. 1947 and 1964 are in possession of defendant-appellant Banarsi Dass; house No. 1976 and one portion of house No. 1977 are in possession of defendant Sadhu Ram; while plaintiff is in possession of another portion of house No. 1977.
3. In a nutshell, plaintiff's case was that these houses mentioned above are ancestral properties of the parties. After their father's death, plaintiff as well as defendants inherited this property. Plaintiff was employed at Udham pur. Defendant No. 1 being the eldest member in family, after the death of their father, managed the suit properties. He in connivance with defendant No. 2 partitioned the properties among themselves. Plaintiff was not called to take part in the partition talks. Defendant No. 1 took two houses 1964 and 1947; defendant No. 2 took 1976 and portion No. 1 of the house No. 1977 and they spared only portion No. 2 of house No. 1977 for the plaintiff which is in his possession. Plaintiff averred that he is entitled to 1/3rd share in the whole of the suit property. He asked his brothers to give him 1/3rd share therein. As they declined, he gave them a notice for partition also. But as his prayer was not acceded to by the defendants, he filed this suit claiming his 1/3rd share in the property and praying for partition thereto.
4. Defendants filed separate written statements with common pleas. They raised certain preliminary objections also. Their main preliminary objections are that there was a partition few years back; hence, the suit is not maintainable and that the suit is bad for non-joinder of necessary party as the plaintiff has not impleaded their mother, who is still alive. They also pleaded that Smt. Mohni Devi, their mother, is the eldest member of the family and she had been managing the properties as owner till the partition took place a few years back. They admitted that the houses are in their possession as detailed in the plaint.
5. The trial Court framed seven issues. Plaintiff examined himself as PW. 3, Subhash Chander and Ganpal P.W. 1 and P.W. 2 respectively. Defendants examined Burhma D.W. 1, Sadhu Ram D.W. 2 and Banarsi Dass defendant as D.W. 3. Defendants also produced two registered gift deeds, Exhibils D-1 and D-3 and registered partition deed Exhibit D-5.
6. The trial Court held that the plaintiff's case was that the suit property is their ancestral property, which he has utterly failed to prove and on this premise he dismissed the plaintiff's suit.
7. Being aggrieved by the judgment and decree, plaintiffs filed the appeal. The First Appellate Court reversed the findings recorded by the trial Court and held that defendant No. 3 himself has admitted on oath that this property was purchased or constructed by his grand-father. Thus, it was duly proved that the suit property was ancestral property of the family of the parties. He also referred to partition deed Exhibit D-5 and observed that indirectly it also establishes that the suit property is ancestral property of the family. About this document the learned Additional District Judge has held that his document is nothing but a mutual arrangement. The mother's name as owner of the property was recorded for the purpose of management thereof. Since the inheritance to the property had opened before the commencement of the Hindu Succession Act, 1956, the widows of Shiv Rattan (grand-father) as well as Ram Parshad (father) did not get any right to inherit the property. On that basis he held that it appears that the parties were indeed owners of the whole of the property which fell to the share of the mother by partition deed Exhibit D-5. He also held that the plaintiff as well as the defendants became entitled to joint possession of the properties bearing Nos. 1946, 1947, 1959, 1964, 1976 and 1977 vide partition deed Exhibit D-5. He also observed that mother executed two gift deeds Exhibits D-l and D-3 in favour of the defendants. As she had no right or title in the property and was simply managing the property on behalf of the present parties; she had no right to make a gift in favour of these defendants.
Hence, the gift deeds do not confer any title on the defendants. He also pointed out that the defendant No. 3 conceded that there had been no partition between the brothers, further held that since inheritance to the property fell open before the commencement of Hindu Succession Act, 1956, all the three sisters do not get any right in that property. He also repelled the arguments that the suit is bad for partial partition. The learned Additional District Judge held that the defendants have led evidence to pro\e that a part of the property was sold by mother and sale proceeds were given to the plaintiff for defending himself in a rape case, but since the parties have not specifically pleaded these facts especially relating to the entrustment of the sale proceeds and whether it was considered to be a charge on the family property or there was a private partition as between the parties at the time the property was sold or prior to that, the sale cannot be taken into account at the time of institution of the present suit. Hence, he held that the plaintiff is entitled to a preliminary decree of partition of the properties as he is owner of l/3rd share therein.
8. The defendants have challenged this decree. According to them, the learned Additional District Judge has fallen into an error in repelling the contention that the suil is bad for partial partition as the plaintiff has not included the house No. 1959 in the suit for partition. It is also objected that the first appellate Court has misread and has not read the evidence on record properly therefore; the judgment and decree are not sustainable.
9. During arguments, the appellant's learned Counsel vehemently argued that the lower appellate Court has specifically observed in para 7 of its judgment that the plaintiff as well as defendants became entitled to the joint possession of the properties bearing Nos. 1946, 1947, 1959, 1964, 1976 and 1977 vide Exhibit D-5. Vide Exhibit D-1 gift deed executed by the mother in favour of defendant Banarsi Dass, house No. 1947 was given to him on 8-3-1974. The mother also executed gift deed, Exhibit D-3, on 9-3-1973 in favour defendant Sadhu Ram with regard to house No. 1977. Defendant No. 3 has stated on oath that house No. 1946 was sold by the mother and its sale proceeds were handed over to the plaintiff to defend himself in the rape case. The defendants have produced judgment of that rape case which is at Eixhibit D-6, but there is no evidence with regard to the disposal of house No. 1959 as this house is not included in the suit; therefore, this suit is bad for partial partition.
10. He also vehemently argued that vide partition deed, Exhibit D-5. ail these six houses referred to in para No. 7 of the judgment of the lower appellate Court were allotted to the mother of the parties in this partition deed which is a registered document dated 17-6-1954. This partition was effected between mother, grandmother and uncle of the parties. From a plain perusal of this partition deed, it is evident that the property was divided between two parties. Party No. 1 consisted of grandmother Sukho widow of Rattan and Puran Chand son of Rattan and only Mohan Devi mother was referred to as party No. 2. Vide this partition deed House Nos. 1948, 1949, 1957, 1958, 1976/1 and 1975 worth Rs. 2500/- fell to the share of Party No. 1 and house bearing Nos. 1946, 1947, 1959, 1964, 1976, and 1977 worth Rs. 2500/- fell to the share of Party No. 2. By this partition deed, they were declared and admitted to be owners in possession of the properties allotted to them thereunder.
11. He also contended that defendant No. 3 has categorically stated that the suit property was ancestral property as it was purchased or constructed by the grandfather Shiv Rattan, but after the execution of the partition deed, Exhibit D-5, ancestral nature of the property came to an end and the mother managed the property given to her by partition deed Exhibit D-5 as owner. Therefore, she was in possession of the property, managed it and executed two gift deeds, Exhibits D-1 and D-3 with regard to house Nos. 1947 and 1977 in favour defendants 1 and 2 respectively. In view of these facts, defendants raised a specific objection that the mother is a necessary party, but the plaintiff failed to implead her as a party. During the trial, she died. Thus, according to him, the learned lower appellate Court has not read and also misread the evidence on record and has arrived at the wrong conclusions. In view of the above facts, the suit is liable to be dismissed.
12. Respondent's learned Counsel supported the judgment under challenge and argued that from the statement of defendant No. 3, it is duly proved that the property is ancestral property of the parties and further there was no partition amongst the parties so far as the suit property is concerned. He also submitted that the lower appellate Court has rightlly held that by partition deed, Exhibit D-5, these houses were given to the mother of the parties to manage the property on behalf of her sons. She never became owner of these properties in her own right, therefore, she had no right to execute the gift deeds, Exhibits D-1 and D-2 in favour of defendants 1 and 2. According to him, the lower appellate court has rightly held that these defendants do not get any right or title in house Nos. 1947 and 1977 (first portion) on the basis of these gift deeds. Since the property is not yet partitioned amongst the brothers, the plaintiff is entitled to seek a preliminary decree for partition which has been rightly granted in his favour by the impugned judgment.
13. In my considered view, both the courts below have fallen into an error in not appreciating and weighing the evidence on record properly. No doubt, the plaintiff's case was that the suit property is ancestral property of the parties and since it is not partitioned amongst them, he is entitled to 1/3rd share therein being third son of their father. The plaintiff has not adduced any documentary evidence to prove ancestral nature of this property, but defendant No. 3 himself admitted that this property was created by their grandfather Shiv Rattan. In view of this admission of defendant No. 3, the trial Court fell into an error in deciding issue No. 1 against the plaintiff holding that he has failed to prove that the suit property is ancestral property.
14. The lower appellate Court has rightly set aside the aforementioned findings recorded by the trial Court but it also fell into an error in not appreciating the partition deed Exhibit D-5 properly. This document is not disputed before me. This is a partition deed executed between mother, grandmother, and uncle of the parties on 17-6-1954. Grandmother and uncle constituted one party and mother alone was described as second party. In this partition deed, it is specifically mentioned that the houses mentioned in the partition deed are owned and possessed by both the parties in equal shares and no other person has any share therein. Due to domestic friction, both the parties do not want to keep the suit property in joint ownership in future. Thus, the property is divided into two equal shares. Hence, by this partition deed, house Nos. 1948, 1949, 1957, 1958, 1976/1 and 1975 worth Rs. 2500/- fell to the share of Puran Chand and Smt. Sukho (uncle and grandmother) while house Nos. 1940, 1947, 1959, 1964, 1976 and 1977 worth Rs. 2500/- fell to the share of Smt. Mohan Devi-mother.
15. Defendants's case is that mother was managing the property as owner till it was partitioned. To prove this plea, defendants have produced and proved the partition deed. Exhibit D-5. Defendants have also proved and even the plaintiff has admitted that the above properties were in possession of mother, she was getting rent and was paying house tax. In view of these facts on record, the provisions of Hindu Women's Rights to Property Act, 1937 (Act XVIII of 1937) and of Hindu Succession Act, 1956, are required to be considered. The property is situated in Ambala. It was a part or erstwhile Slate of Punjab. Section 14(1) of the Hindu Succession Act. 1956 reads as under :--
"Property of a female Hindu to be her absolute property :-- (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not us a limited owner.
Explanation.--In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also ;my such properly held by her as stridhana immediately before the commencement of this Act." On the date when the Hindu Succession Act, 1956, came into force, she was in possession of these houses. Under Section 14(1) of the Act, she became its absolute owner,
16. From the judgment of Hari Dass v. Smt. Hukmi, AIR 1965 Punjab 254, it is evident that the Hindu Women's Rights to Property Act, 1937 was applicable to the devolution and succession of the property other than the agricultural land in erstwhile Stale of Punjab in 1954, which became a part of Punjab State on reorganisation of the States on 1-11-1956 (as Haryana was carved out as a separate State in 1966 including Ambala as its District).
17. In this judgment, the Division Bench has also referred to the Federal Court judgments (AIR 1945 FC 25 and AIR 1945 Lahore 282). In Udham Kaur v. Parkash Kaur. AIR 1945 Lahore 282, a Division Beneh laid down that the word "property" as used in the Act (XVIII of 1937) must be construed as referring only to those forms of property with respect to which the legislature which enacted the Act was competent to legislate, this is, property other than the agricultural land and that legislation with regard to usufructuring, mortgaging of agricultural land was solely within the purview of provincial legislature.
18. The Division Bench after discussing these judgments observed further that in the present case, Act XVIII of 1937, as interpreted by the Federal Court and the Lahore High Court governs devolution and succession of the property other than the agricultural land. It was a piece of legislation qua that property.
19. Thus, Smt. Mohan Devi had pre-existing rights to inherit the property of her husband under the Hindu Women's Rights to Property Act, 1937 (Act No. XVIII of 1937) and therefore, by this partition deed, six houses were given in her share; her interest therein became absolute with the passing of the Hindu Succession Act, 1956.
20. In Badri Parshad v. Smt. Kanso Devi, (1970) 2 SCR 95 : (AIR 1970 SC 1963), prepositer died in 1947 leaving behind his five sons and a widow. As disputes arose the matter was referred to an arbitrator for partition in 1950. In his award arbitrator allotted shares to the parties, but he also mentioned that the widow would only have widow's estate in those properties. While widow was in possession of the properties, Hindu Succssion Act, 1956 came into force and the question arose whether or not she became full owner of the property or she only had a restricted interest as provided in the grant, namely, the award. The Supreme Court held that "although the award had given a restricted estate, but this was only a narration of the State of law as it existed when the award was made. As the widow, however, inherited the property under the Hindu Women's Rights to Property Act, 1937, her interest became absolute with the passing of the Act, 1956 and she squarely fell within the provisions of Section 14(1) of the Act. It was also held that mere fact that the partition was by means of an award would not bring the matter within the provisions of Section 14(2) of the Act, because the interest given to the widow was on the basis of a preexisting right and not a new grant for the first time."
21. This judgment was referred to by three (Judge) Bench judgment of the Apex Court in V. Tulsamma v. Shesha Reddy (Dead) by LRs (1977) 3 SCC 99 : (AIR 1977 SC 1944). In that case, widow's claim for maintenance was allowed by the Court in an execution proceedings. The brother of the deceased-husband entered into a compromise with her where certain properties were given to her in lieu of her right to claim maintenance. She continued to remain in possession of the properties, even after coming into force of the Hindu Succession Act, 1956. Thereafter by two registered deeds, she leased out some of the properties to defendants 2 and 3 and by another deed sold some of the properties to defendant No. 4. These transactions were challenged by brother of her deceased-husband. After considering the various judgments and the Shastric Hindu Law on the subject, the Apex Court held that right to maintenance is, undoubtedly, a pre-existing right which existed under the Hindu Women's Rights to Property Act, 1937 before passing the Hindu Succession Act, 1956 or Act of 1946 and is, therefore, a preexisting right.
22. In Nazar Singh v. Jagjit Kaur, (1996) 1 SCC 35 : (AIR 1996 SC 855), the Supreme Court held that "as soon as property came in possession of Hindu female towards her maintenance, the limited estate was transformed into absolute estate by operation of Sub-section (1) of Section 14 notwithstanding the fact the property was acquired under an instrument of compromise containing limitations or restrictions. Sub-section (2) of Section 14 of the Hindu Succession Act, 1956, is not attracted when property is acquired in lieu of right of maintenance."
23. Again in Ram Kali v. Choudhari Ajit Shankar, 1997 (1) Hindu Law Reporter 212, the Apex Court has held that "widow has a preexisting right for maintenance and was in possession of the suit house on the day when the Act came into force. After the enforcement of the Act she will become the absolute owner of the house and could not be considered as a trustee of the interest of the reversioners. She was entitled to transfer the house."
24. In Ramji Lal v. Ghisa Ram, 1996 (2) ICC 693 : (AIR 1996 SC 3338), the Apex Court held that the husband of the Hindu female died in 1944 and she succeeded to his property. In 1956 Hindu Succession Act came into force. Section 14(1) of the Hindu Succession Act, 1956 enlarges the widow's estate known to Shastric Law; removed fetters on possession and blossom into an absolute right to the widow.
25. Thus, in my considered view, Smt. Mohan Devi, mother, became full owner of the houses mentioned in the partition deed. Exhibit D-5, with the coming into force of Hindu Succession Act, 1956. Therefore, after the partition, she was dealing with these houses as owner. She executed two gift deeds, Exhibits D-1 and D-3 in favour of defendants and sold house No. 1946 when the plaintiff was facing a rape case (judgment Exhibit D-6). If her sons/the parties, were of the view that they are entitled to get a share in the properties given to their mother vide partition deed, Exhibit D-5, they were entitled to claim their shares from their mother or were entitled to get this partition re-opened qua their shares, but this partition deed, Exhibit D-5, is not challenged by other party in any legal proceeding. Even in this partition suit, plaintiff-respondent has not challenged this partition.
26. It is also apparent from the statement of Banarsi Dass DW-3 and from the judgment Exhibit D-6 that when this partition deed was executed, defendant No. 1 was aged 30 years and plaintiff was aged about 21/22 years (as in the judgment Exhibit D-6 dated 22-11-1957, date of offence is 7-3-1957, plaintiff's age is shown as 25 years while this partition is dated 17-6-1954, thus plaintiff was aged about 21/22 years). From the statement of Banarsi Dass DW-3, it is evident that mother divided the houses amongst her sons. He has also testified that house No. 1946 was sold by mother for the benefit of the plaintiff to defend him in the rape case. Hence, he was given 1/2 portion of house No. 1977. She, by gift deed dated 8-3-1973, Exhibit D-1, gave house No. 1947 to defendant Banarsi Dass and by gift deed, Exhibit D-3, she gave one portion of house No. 1977 to defendant Sadhu Ram. From the statement of Banarsi Dass, it is also clear that mother gave house No. 1964 to Banarsi Dass and house No. 1976 to Sadhu Ram, thereby she divided the houses amongst her sons equally.
27. In the replication, plaintiff has pleaded that in the end of 1975 when he came back to Ambala from Udhampur, he was given two rooms of house No. 1977 by the defendants, but on oath he has not stated so. Even no such question was put to Banarsi Dass defendant in cross-examination, thereby it is apparent that he is accepting this evidence of the defendant that the houses were divided by the mother. Therefore, the defendants raised an objection in their written statement that the mother was managing these properties as owner and hence, she is a necessary party to the suit. Despite this specific objection, the plaintiff failed to implead her as a party though on the date of suit she was alive. This only shows the plaintiff's deliberate design to hide the fact of this partition.
28. No doubt, defendants have pleaded that earlier the partition had taken place amongst the brothers, plaintiff denied it on oath. Even Banarsi Dass DW-3 has admitted unequivocally that there was no such partition amongst the brothers, but from the evidence on record, as discussed above, it is apparent that mother divided property equally amongst her sons (parties).
29. Hence, in my considered view, it is apparent on record that the pleadings as well as the evidence adduced by the parties, is not scanned and weighed properly by the first appellate Court. From the proved facts, it is evident that parties' mother became absolute owner of the suit property and also other houses mentioned in the partition deed, Exhibit D-5, with the coming into force of the Hindu Succession Act, 1956. She divided the property amongst her sons; therefore, if the plaintiff wanted his 1/3rd share in these houses, he was required to implead mother as a party. He was also required to challenge the partition deed Exhibit D-5, to claim his 1/3rd share in these properties. On both these counts judgment under appeal is not sustainable. As the plaintiff has failed to approach the Court seeking appropriate relief against the proper parties, his suit was liable to be dismissed and is hereby dismissed though on different counts.
30. Accordingly, the appeal is hereby allowed with costs and the judgment of the lower appellate Court is set aside and that of the lower Court is restored on different reasoning. Costs are quantified at Rs. 5000/-.