Lacho Devi v. Balbhadra Rai — 1997 DIGILAW 731 (PAT)

Judgment B. P. Singh, J. 1. The petitioners herein have impugned the orders passed by the appellate and the revisional authorities under the Consolidation of holdings and Prevention of Fragmentation Act, which are Annexures-3 and 4 sespectively. By his appellate order, Annexure-3 dated 3-2-1977/8-4-77 the deputy Director, Consolidation, the appellate authority, set aside the order of the Consolidation Officer and held that the name of respondent No.1 herein shall be recorded in respect of the properties gifted to him under the deed of gift dated 26-5-1923 which were recorded in the name of Sahodara Kuer in the R. S. Khatiyan. The appellate order (Annexure-3) has been affirmed by the Director, Consolidation, the revisional authority, by his order dated 21-12-1985. 2. It is not in dispute that Abhilakh rai had two sons, namely, swarth Rai and Kritanath Rai. Abhilakh rai had died earlier, and by the year 1923 both the sons of Abhilakh Rai were dead. The properties in question, therefore, were recorded in the cadastral survey in the name of Ajora kuer, widow of Swarath Rai and sahodra Kuer, widow of Kritanath Rai. Ajora Kuer had a daughter Dhanrajia, who was married to one Nagina Rai. They had a son Balbhadra Rai, who is respondent No.1 herein. In the year 1923 he was a minor aged about three years. On the other hand, Sahodra Kuer had a daughter, Parvati Devi. So far as the petitioners herein are concerned, it is not clear as to whether they are the collaterals of Abhilakh Rai claiming reversionary rights. In the writ petition filed before this Court they have simply claimed that the ancestors of the petitioners were the persons who were to succeed to the properties left behind by the widows. In the consolidation proceedings, as well as before this court in the writ petition, the petitioners have based their rights on the basis of a compromise decree dated 14-12-1923. In this background of facts the case of the petitioners set out in the writ petition may be adverted to. 3. According to the petitioners, 13.02 acres of land consisting of 18 plots in Khata Nos.2 and 18 of village pashara were recorded in the names of aforesaid Ajora Kuer and Sahodra Kuer in the cadastral survey. In the revisional survey the same lands were recorded under Khata No.66 consisting of 17 plots having an area of 12.68 acres. 3. According to the petitioners, 13.02 acres of land consisting of 18 plots in Khata Nos.2 and 18 of village pashara were recorded in the names of aforesaid Ajora Kuer and Sahodra Kuer in the cadastral survey. In the revisional survey the same lands were recorded under Khata No.66 consisting of 17 plots having an area of 12.68 acres. The lands were recorded in the name of sahodra Kuer. According to the petitioners, their ancestors were the persons entitled to succeed to the properties in question after the widows. However, on 26th May, 1923 respondent No.1 got a collusive deed of gift executed in his favour with regard to the aforesaid lands. The said gift was never given effect and respondent No.1 never came in possession of the lands under the gift deed, nor his name was mutated in the revenue records on the basis of the deed of gift. In sum and substance, therefore, the gift deed was not acted upon and the widows continued in possession of the lands gifted under the aforesaid deed of gift. However, the ancestors of the petitioners having come to know about the fraudulent and collusive deed of gift filed a title suit being title Suit No.37 of 1923 against the aforesaid Ajora Kuer, Sahodra Kuer and Balbhadra Rai, respondent No.1 herein, and others, challenging the deed of gift. Respondent No.1, balbhadra Rai, was defendant No.3 in the suit and it appears from the record produced by the petitioners that in the suit he was represented by his guardian, namely, his father, since he was a minor. Ultimately, the parties arrived at a compromise and a compromise petition was filed before the Court. The Court of 2nd subordinate Judge, Sahabad, where the suit was pending, decreed the suit in terms of the compromise by his order dated 14-12-1923. The said decree was sealed and signed on 18-12-1923. It is also not disputed that Ajora Kuer died during the pendency of the suit. 4. Under the compromise decree sahodra Kuer, widow of Kritarath Rai, was to remain in possession of the entire lands in question for her life time without any power to transfer the lands. The said decree was sealed and signed on 18-12-1923. It is also not disputed that Ajora Kuer died during the pendency of the suit. 4. Under the compromise decree sahodra Kuer, widow of Kritarath Rai, was to remain in possession of the entire lands in question for her life time without any power to transfer the lands. After her death half of the properties in suit were to go to the plaintiffs of the said suit and their heirs (predecessors in interest of the petitioners), and the remaining half was to go to respondent no.1, Balbhadra Rai and Most Parbatia, daughter of Sahodra Kuer. The said Parbatia was to remain in possession for her life time after which her share was to devolve upon Balbhadra rai (respondent No.1 ). The deed of gift in favour of respondent No.1 was revoked. 5. The case of the petitioners is that the compromise decree became effective and Most. Sahodra Kuer came in possession of the entire properties and remained in possession for her life time. She died in the year 1967. Thereafter, the parties came in possession of their respective shares according to the terms of the compromise decree. In this manner the petitioners came in possession of half of the suit lands. 6. It is the case of the petitioners that Sahodra Kuer had executed a deed of gift on 5-5-1965 in favour of her daughter Parvati with regard to 3.14 acres of lands which represent 1/4th share in Plot No.115,385,264 and 440. 7. After the death of Sahodra Kuer, parvati started claiming the entire lands measuring 12.68 acres which resulted in initiation of a proceeding under Section 144, Cr. P. C. , which was ultimately converted into a proceeding under Section 145, Cr. P. C. In the said proceeding under Sec.145 Cr. P. C. by order dated 31st July, 1970 it was held that parvati was in possession of 3.14 acres of land. It is also the case of the petitioners that their ancestors divided the properties which caame to their share, and their names were accordingly mutated in the Anchal office. The consolidation authorities also mutated their names accordingly. However, respondent No.1 filed an objection under Sec.10 (2) of the Act disputing the claim of the petitioners. It is also the case of the petitioners that their ancestors divided the properties which caame to their share, and their names were accordingly mutated in the Anchal office. The consolidation authorities also mutated their names accordingly. However, respondent No.1 filed an objection under Sec.10 (2) of the Act disputing the claim of the petitioners. The Consolidation Officer, however, rejected his objection, against which he preferred an appeal, which was allowed by the impugned order of the appellate authority (Annexure-3), which has been affirmed by the order of the revisional authority (Annexure-4 ). 8. The appellate authority held that Sahodra Kuer had been recorded in possession in the revisional survey khatiyan. The petitioners herein had no title to the disputed lands, except on the basis of the compromise decree. Respondent No. l, being the donee under the deed of gift, was not a party to the title suit. He, therefore, held that the only person who could be substituted in place of Sahodra Kuer was balbhadra Rai. The petitioners had failed to establish their title over the lands in question. On such finding the appeal was allowed and the order of the consolidation Officer was set aside. I do not attach much weight to the finding of the appellate authority that respondent No.1 herein was not a party in the suit in which the compromise decree was passed. This appears to be an error of record, because admittedly respondent No.1 was a party in the suit and being a minor was represented through his natural guardian. What is, however, important is the fact that the petitioners herein claimed title on the basis of the compromise decree. The order of the revisional authority proceeded on the basis that if the two widows had gifted their lands in favour of respondent No.1, then they had no right to compromise the suit. The compromise decree was, therefore, not valid since the widows had no subsisting rights to compromise the matter. The revisional authority also noticed paragraph No.5 of the compromise decree in which it was provided that if any of the parties did not accept the terms of the compromise and challenged the same, the contesting parties will have no right to rely upon the said compromise decree. The revisional authority also noticed paragraph No.5 of the compromise decree in which it was provided that if any of the parties did not accept the terms of the compromise and challenged the same, the contesting parties will have no right to rely upon the said compromise decree. Since the claim of the petitioners was based on this compromise decree alone, in terms of clause 5 of the compromise decree respondent No.1 could challenge the compromise decree and his rights could not be defeated on the basis of the compromise decree. The revision was, therefore, dismissed. 9. Before this Court the respondents supported the findings recorded by the appellate and the revisional authorities under the Consolidation act, and it was further submitted that on the case pleaded by the petitioners themselves, this writ petition should be rejected. It was submitted that the petitioners had not disclosed the basis on which they claimed title and interest and relied upon the compromise decree. Clause 5 of the compromise decree left it open to any party to challenge the compromise on the basis of his right and when such a challenge was made, the compromise decree could not be pleaded to resist the claim. It was, therefore, submitted that the very basis on which the petitioners claimed right, title and interest was non-existent. Even otherwise since Sahodra died some time in the year 1967, she perfected her limited estate into an absolute one and the petitioners could thereafter have no claim to the properties in question, even if they set up their claim as rever-sioners. The submission urged on behalf of respondent No.1 must be accepted, as it is fully supported by authority. 10. It is the case of the petitioners themselves that the lands in question were recorded in the name of two widows, namely, Ajora Kuer and Most. Sahodra Kuer. In 1923 they purported to execute a deed of gift, which, according to the petitioners was collusive document, not acted upon. The widows remained in possession and respondent no.1 never got possession of the lands in question. Respondent No.1 was no other than the grandson of Most. Ajora kuer, being her daughters son. Under the compromise decree, according to the petitioners, the deed of gift in favour of respondent No.1 was revoked. Thus Most. The widows remained in possession and respondent no.1 never got possession of the lands in question. Respondent No.1 was no other than the grandson of Most. Ajora kuer, being her daughters son. Under the compromise decree, according to the petitioners, the deed of gift in favour of respondent No.1 was revoked. Thus Most. Sahodra Kuer continued in possession of the lands in question as if the deed of gift had never been executed. Her pre-existing right to the lands in question is not disputed, and that right never came to an end in view of the fact that the gift deed was only a paper transaction, and in any event after the compromise decree it stood revoked and the widow Most. Sahodra continued in possession. It is the case of the petitioners themselves that Most. Sahodra Kuer died in the year 1967, and only thereafter the petitioners came in possession of their half share under the compromise decree. Counsel for respondent No.1 submitted that in these facts, it must be held that the limited estate of Most. Sahodra Kuer became her absolute estate under Sec.14 of the Hindu Succession Act, 1956. Counsel for the petitioners submitted that since the possession of most. Sahodra Kuer was not relatable to her right to possess in her own right, such possession did not ensure to her benefit so as to extend her limited estate into an absolute estate entitling her to hold the lands as full owner thereof.11. It is now well-settled that where a Hindu widow is in possession of property in recognition or by virtue of a pre-existing right, such an acquisition could not be within the scope and ambit of sub-section (2) of Sec.14 of the hindu Succession Act, even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property. It is not necessary to multiply the authorities, but one may usefully refer to the decisions of the supreme Court, reported in AIR 1977 sc 1944 , V. Tulasamma V/s. Sesha Reddi, air 1987 SC 2251 , Gulwant Kaur V/s. Mohinder Singh, AIR 1979 SC 993 , Bai vajia V/s. Thakorbhai Chelabhai and others. It is not necessary to multiply the authorities, but one may usefully refer to the decisions of the supreme Court, reported in AIR 1977 sc 1944 , V. Tulasamma V/s. Sesha Reddi, air 1987 SC 2251 , Gulwant Kaur V/s. Mohinder Singh, AIR 1979 SC 993 , Bai vajia V/s. Thakorbhai Chelabhai and others. It is also well settled that under section 14 of the Act, the property possessed by a female Hindu, as contemplated in the Section, is clearly a property to which she had acquired some kind of title whether before or after the commencement of the Act. The object of the section is to make a hindu female a full owner of the property which she had already acquired or which she acquired after the enforcement of the Hindu Succession act. It does not in any way confer a title on the female Hindu where she did not in fact possess any vestige of title. It follows, therefore, that the section cannot be interpreted so as to validate the illegal possession of a female Hindu, and it does not confer any title on a mere trespasser. The decision of the Supreme court to this effect in Eramma V/s. Veerupana and Ors. ( AIR 1966 SC 1879 )has been consistently followed in subsequent decisions of the Supreme court - See AIR 1989 SC 1179 , Munshi singh V/s. Sohan Bai, AIR 1987 SC 353 , air 1992 Karnataka 153, AIR 1970 SC 1019 and 1987 BLJR 663. 11. In the case in hand the pre-existing right of Mostt. Sahodra Kuer is not in dispute, as she was the recorded tenant of the lands in question. She alongwith Mostt. Ajora Kuer purported to make a gift of the lands in question in favour of respondent No.1 in the year 1923, when respondent No.1 was a minor. The petitioners contend that the gift deed was never acted upon, and the widows continued in possession. In any event in view of the terms of the compromise resulting in a compromise decree in the year 1923 itself, the gift deed was revoked. There was, so to say, no gift deed and, therefore, Mostt. Sahodra Kuer continued in possession till the year 1967 when she died. In my view, on the pleadings of the petitioners themselves this writ petition must be dismissed. If Mostt. There was, so to say, no gift deed and, therefore, Mostt. Sahodra Kuer continued in possession till the year 1967 when she died. In my view, on the pleadings of the petitioners themselves this writ petition must be dismissed. If Mostt. Sahodra Kuer continued in possession of the lands in question till the year 1967, she did so on account of her pre-existing right to possess the lands in question being the recorded tenant. If the gift deed made by Mostt. Ajora Kuer and Mostt. Sahodra Kuer had taken effect and the donee had taken possession and exercised right over the lands in question, the petitioners, if they claimed to be the reversioners (which they have not claimed in the instant writ petition), could have taken action in accordance with law to recover possession from the donee. However, their case is that the gift deed never took effect and was revoked in the same year pursuant to a compromise decree. It must, therefore, be held that Mostt. Sahodra Kuer continued in possession of the lands in question till the year 1967. Obviously, she was in possession of the lands in question on the date on which the hindu Succession Act came into force i. e.17-6-1956. She, therefore, became the full owner of the property under section 14 of the Hindu Succession Act. 12. Counsel for the petitioners submitted that Mostt. Sahodra Kuer did not retain possession in exercise of her own right to possess the lands in question and, therefore, it cannot be said that she was possessed of the lands in question as a widow having a limited estate on the date on which the Act came into force. In view of the facts pleaded by the petitioners themselves, it is not possible to accept this submission. The widows were the recorded tenants of the lands in question. All that happened in the year 1923 was that they purported to execute a deed of gift in favour of respondent No.1. The case of the petitioners is that the gift deed was not acted upon, and they continued in possession. Their further case is that in terms of the compromise decree the gift deed stood revoked. The widow Mostt. Sahodra Kuer, therefore, continued in possession as the widow of the male holder Kritanath Rai, Ajora Kuer having died during the pendency of the suit. Their further case is that in terms of the compromise decree the gift deed stood revoked. The widow Mostt. Sahodra Kuer, therefore, continued in possession as the widow of the male holder Kritanath Rai, Ajora Kuer having died during the pendency of the suit. She continued in possession of the lands in question since the gift deed stood revoked. Obviously, therefore, she continued in possession of the lands on the basis of her pre-existing right to possess the lands in question. She was not in illegal possession of the lands. She cannot be termed as a trespasser. In these circumstances, it is difficult to accept the contention urged on behalf of the petitioners that her possession was not referable to her right to possess. 13. In any event, since on the date on which the Hindu Succession Act came into force, Mostt. Sahodra Kuer was in legal possession of the lands in question, and even if she was a limited owner, her limited estate was changed into an absolute estate and she became the full owner of the lands in question. I may refer to two decisions of the supreme Court which support this conclusion. In Jagannathan Filial V/s. Kunjithapadam, air 1987 SC 1493 , the supreme Court was considering a case of a Hindu widow who regained possession of a property in which she had a limited ownership subsequent to the commencement of the Act, upon the retransfer of the very same property to her by the transferee in whose favour she had transferred it prior to the commencement of the Act. The Court held that such a Hindu widow would become the absolute owner of the property under the provisions of Sec.14 of the Hindu Succession Act. It was held that when the transaction was reversed and what belonged to her was retransmitted to her, what the concerned Hindu female acquired was a right which she herself once possessed, namely, a limited ownership which immediately matured into or got enlarged into a full ownership in view of Section 14 (1) of the Hindu Succession Act. In jagannathan Pillais case the widow had transferred the property before coming into force of the Hindu Succession Act, and the very same property was retransferred to her after the Act came into force. Even so, it was held that she became the full owner of the property. In jagannathan Pillais case the widow had transferred the property before coming into force of the Hindu Succession Act, and the very same property was retransferred to her after the Act came into force. Even so, it was held that she became the full owner of the property. In the instant case, even if it is assumed that a deed of gift was purported to have been executed, by reason of the compromise decree, even according to the petitioners, the gift deed stood revoked, and the widow continued in possession. This is apart from the fact that even according to the petitioners, the gift deed was not acted upon, and the widows had never parted with the possession of the property even for a temporary period. The Supreme Court considered its earlier decision in AIR 1959 SC 577 , kottiuruswamy V/s. Veerawa and held that the case was distinguishable inasmuch as in that case the widow had trespassed on the property and had obtained physical possession as a trespasser without any title. The same distinction is available in this case as well, because it is no ones case that mostt. Sahodra Kuer came in illegal possession of the lands in question. 14. In Gopal Singh V/s. Dile Ram and ors. , AIR 1987 SC 2394 , the widow, who had only life interest had made a gift of the properties. That alienation was challenged in a suit for declaration that the gift of properties made before coming into force of the Hindu Succession Act by the widow, who had only lite interest, was not binding. A compromise decree was passed which declared that the gift was ineffective. The effect of such declaration was that the widow continued to be the limited owner of the properties after the decree till 1956 when the Hindu Succession act came into operation. In such facts the Supreme Court held that her limited estate became an absolute estate and as such the widow was entitled to make a Will of the properties subsequent to the coming into force of the hindu Succession Act. The facts of the present case present a somewhat similar situation. The widows purported to make a gift of the lands in question which was challenged. In the compromise decree it was provided that the gift shall stand revoked and thereafter the surviving widow continued in possession till the year 1967. The facts of the present case present a somewhat similar situation. The widows purported to make a gift of the lands in question which was challenged. In the compromise decree it was provided that the gift shall stand revoked and thereafter the surviving widow continued in possession till the year 1967. In these circumstances, it must be held that Mostt. Sahodra Kuer continued to be a limited owner of the properties after the decree until 1956 when the Hindu Succession act came into operation, and thereafter she became the full owner of the properties by virtue of Sec.14 of the act. I, therefore, find that the appellate and the revisional authorities have rightly decided the case in favour of respondent No.1 and against the petitioners. There is no merit in this writ petition, and the same is, accordingly, dismissed. Writ Petition Dismissed.