Research › Search › Judgment

Punjab High Court · body

2000 DIGILAW 1473 (PNJ)

Niranjan Singh v. Ram Nath

2000-11-30

K.C.GUPTA

body2000
JUDGMENT K.C. Gupta, J. - This Regular Second Appeal is preferred by defendant No. 1, Niranjan Singh, against the judgment and decree dated 11.10.1980 whereby his appeal was dismissed by the Additional District Judge, Ambala, and the judgment and decree dated 19.8.1978 passed by Sub Judge II Class, Ambala City, decreeing the suit of the plaintiffs (respondent Nos. 1 to 5), was up-held. 2. Briefly stated, the facts are that Sis Ram was the owner of the suit land measuring 41 Bighas 3 Biswas situated in village Ghagroo, District Ambala besides one house. He, on 23.10.1918, gifted the aforesaid property in favour of his wife, Smt. Bhagwani and his daughter, Smt. Bhagirthi. Admittedly, he had no son. S/Shri Kundan, Phundan and Chandu, predecessors-in-interest of respondent Nos. 1 to 5 (plaintiffs), third decree collaterals of Sis Ram, filed a suit and challenged the said gift on the ground that the suit land was ancestral qua them and Sis Ram and under custom Sis Ram was not competent to make a gift of the ancestral land in favour of his wife and daughter in the presence of third degree collaterals and it would not effect their reversionary rights after the death of Sis Ram. The said suit was compromised. Rs. 500/- were paid to Smt. Lillawati d/o Smt. Bhagirthi in the court and a decree for declaration was passed in favour of respondent Nos. 1 to 5 to the effect that the gift deed in favour of Smt. Bhagirthi and Smt. Bhagwani etc. would not effect their reversionary rights and they would remain in possession of the suit land for life and would enjoy the produce of the land. However, they would not have any right to alienate the suit land and after the death of Bhagwani and Bhagirthi, Kundan etc. would become owners of the suit land. 3. Smt. Bhagwani died on 19.3.1942 and in terms of the decree, her half share was mutated in favour of Shiv Ram, father of Ram Nath, respondent No. 1 as Kundan had already died. Phundan son of Umar Daraz and Jainti Parshad son of Chandu and Smt. Ram Rakhi widow of Chaju had also died. The mutation was sanctioned in their favour on 19.9.1943. 4. Phundan son of Umar Daraz and Jainti Parshad son of Chandu and Smt. Ram Rakhi widow of Chaju had also died. The mutation was sanctioned in their favour on 19.9.1943. 4. It was next averred that in lieu of the half share of the land which was in possession of Smt. Bhagirthi on account of gift, she was allotted land measuring 38K-6M and 1/2 share of the land measuring 15K-19M situated in Village Chagroo as detailed in para No. 4 of the plaint during consolidation. However, Smt. Bhagirthi, vide registered sale deed dated 14.8.1958, sold the afore-mentioned suit land in favour of Niranjan Singh, appellant and respondents Nos. 6 to 8 i.e. Arjan Singh, Amjer Singh and Shamsher Singh. Ultimately, Smt. Bhagirthi died on 1.8.1970. 5. Respondent Nos. 1 to 5, who are the successors of Kundan, Phundan and Chandu, after the death of Bhagirthi, filed the present suit for possession of the suit land on the ground that as per terms of the decree dated 15.6.1920 and also due to the compromise effected by Bhagirthi, she had no right to alienate the property and she was directed to enjoy the property till her life time and after her death, they were entitled to the possession of the same. With these allegations, a suit for possession was filed on 26.4.1971. 6. The defendants (appellant and respondent Nos. 6 to 8) contested the suit and filed written statement dated 16.7.1971. They denied the allegations of respondent Nos. 1 to 5 and stated that they had no locus standi to challenge the alleged gift deed and they could not claim any reversionary rights in the land gifted to Smt. Bhagirthi and Smt. Bhagwani. They further stated that Sis Ram was a high caste Brahmin and was governed by Hindu law in the matters of alienation and succession and not by agricultural custom. They further stated that they had purchased the suit land vide sale deed dated 14.5.1958 for Rs. 3,000/-, which price was fixed in good faith and was actually paid. They also stated that they had made bona fide enquiries and believed in good faith the representation of the vendor and as such cannot be challenged by respondent Nos. 1 to 5. 3,000/-, which price was fixed in good faith and was actually paid. They also stated that they had made bona fide enquiries and believed in good faith the representation of the vendor and as such cannot be challenged by respondent Nos. 1 to 5. They further stated that Smt. Bhagirthi had a daughter Lillawati and further Smt. Shanti Devi was the daughter of Lillawati who was alive and Bhagirthi was survived by her daughter and daughters daughter who could alone claim to succeed to the property in dispute. They further stated that they were full and complete owners having valid possession of the suit property and respondent Nos. 1 to 5 had no title or interest in the suit land and as such stated that the suit be dismissed. 7. The suit was earlier decided by Sub Judge II Class, Ambala City, vide his judgment dated 21.9.1974 but the appellant and respondent Nos. 6 to 8 filed appeal and vide judgment dated 27.10.1975, the case was remanded for re-trial after framing the following issues :- "1. Whether the land in dispute was ancestral in the hands of Sis Ram qua the plaintiffs ? PP 2. Whether Sis Ram was competent to make a gift of this land in favour of his wife Bhagwani and daughter Bhagirthi ? OPP 3. Whether Bhagirthi was in possession of the land in dispute by virtue of the decree date 15.6.1920 or in her own right when the Hindu Succession Act, 1956 came into force ? OPP 4. Whether the land in dispute has been allotted in consolidation proceedings in lieu of the land, which was in dispute in the civil suit decreed on 15.6.1920 filed by the predecessors of the plaintiffs and against Bhagwani and Bhagirthi ? OPP 5. What is the effect of the compromise decree dated 15.6.1920 passed in the Civil suit filed by the predecessors of the plaintiffs and against Bhagwani and Bhagirthi ? OPP 6. Whether the sale in dispute affected by Bhagirthi is not binding upon the plaintiffs ? OPP 7. Whether the defendants are bona fide purchases for valuable consideration and it so, its effect ? OPP 8. Whether the two daughters, namely, Lillawati and Sheela Devi of Bhagirthi are alive and if so, are the plaintiffs not entitled to file the suit ? OPP 9. OPP 7. Whether the defendants are bona fide purchases for valuable consideration and it so, its effect ? OPP 8. Whether the two daughters, namely, Lillawati and Sheela Devi of Bhagirthi are alive and if so, are the plaintiffs not entitled to file the suit ? OPP 9. Whether Bhagirthi was absolute owner of the property in dispute at the time of its sale ? OPD 10. Relief." Both the parties adduced their evidence. 8. After hearing counsel for the parties, Sub Judge II Class, Ambala City, vide his judgment dated 19.8.1978 decreed the suit by holding under Issues No. 1, 2, 3, 5, 6 and 9 that the suit land was ancestral in the hand of Sis Ram and he was not competent to make a gift in favour of his wife and daughter; that since Smt. Bhagirthi was in possession of the land in dispute by virtue of decree dated 15.6.1920 and not in her own rights, so she had not become full-fledged owner under Section 14(1) after enforcement of the Hindu Succession Act, 1956 and further she was not competent to sell the suit land in favour of the appellant and respondent Nos. 6 to 8 and the said sale is not binding on the rights of respondent Nos. 1 to 5. Under Issue No. 4, it was held that Smt. Bhagirthi was allotted the land as mentioned in para No. 4 of the plaint during consolidation which had fallen to her share on compromise and was the subject-matter of gift in her favour and this was the property, she had sold to the appellant and respondent Nos. 6 to 8. Under Issue No. 7, it was held that the appellant and respondent Nos. 6 to 8 were not bona fide purchasers and since they belonged to the same village where the suit land was situated, so they must have known that Smt. Bhagirthi had only limited interest in the suit land and after her death, it was to revert to the collaterals of Sis Ram. Under Issue No. 8, it was held that the decree passed by compromise in favour of the predecessor-in-interest of respondent Nos. 1 to 5 did not enure for the benefit of Smt. Lillawati d/o Bhagirthi or Smt. Shanti Devi d/o Lillawati. 9. Under Issue No. 8, it was held that the decree passed by compromise in favour of the predecessor-in-interest of respondent Nos. 1 to 5 did not enure for the benefit of Smt. Lillawati d/o Bhagirthi or Smt. Shanti Devi d/o Lillawati. 9. Aggrieved by the said judgment and decree, defendant No. 1, Niranjan Singh, filed the appeal, which was dismissed vide judgment dated 11.10.1980 by the Additional District Judge, Ambala. Still feeling dissatisfied, defendant No. 1 has filed the present Regular Second Appeal. 10. The Regular Second Appeal was admitted vide order dated 8.1.1981 and dispossession of the appellant was stayed. 11. Respondent Nos. 6 to 8 are proforma respondents as their interest is same as that of the appellant. They were also ex parte in the first appellate Court. The interest of respondent Nos. 1 to 5 is the same as they were plaintiffs in the lower Court. Sh. K.S. Grewal has agreed to appear on behalf of respondent Nos. 1 to 5. 12. I have heard counsel for the appellant, Sh. S.K. Goyal, counsel for respondent Nos. 1 to 5, Sh. K.S. Grewal and carefully gone through the record. 13. It is an admitted fact that Sis Ram was the owner of land measuring 41 Bighas-3 Bisbas and one house situated in village Ghagroo, Tehsil and District Ambala. He made gift of the aforesaid property on 23.10.1918 in favour of his wife, Smt. Bhagwani and his daughter Smt. Bhagirthi. It appears that some maintenance was also provided to the daughter of Smt. Bhagirthi. Kundan, Phundan and Chandu, third degree collaterals of Sis Ram, challenged the aforesaid gift deed by filing a suit under custom. In the said suit, compromise took place. They paid Rs. 500/- to the daughter of Smt. Bhagirthi in the court. According to the compromise, it was agreed that the gift deed would not effect the reversionary rights of Kundan etc. after the death of Bhagwani and Bhagirthi and they would enjoy the produce of the suit land in equal shares during their life time and they would not be entitled to alienate the suit land and after their death, it would revert back to S/Shri Kundan etc. after the death of Bhagwani and Bhagirthi and they would enjoy the produce of the suit land in equal shares during their life time and they would not be entitled to alienate the suit land and after their death, it would revert back to S/Shri Kundan etc. There is also no dispute about it that Smt. Bhagwani widow of Sis Ram died on 19.3.1942 and in terms of the decree her half share was mutated in favour of Shib Ram s/o Kundan i.e. father of Ram Nath, respondent No. 1. Kundan had already died. Phundan and Jainti Parshad s/o Chandu. The said mutation was also sanctioned on 19.9.1943. The successors-in-interest of Kundan etc. are in possession of the half share of the suit land and they are enjoying its produce. There is no dispute about this half share of the land. The only dispute is with regard to the other half share of the suit land which was in possession of Smt. Bhagirthi d/o Sis Ram. Admittedly, Smt. Bhagirthi had died on 1.8.1970 i.e. after the enforcement of Hindu Succession Act, 1956 (for short, "the Act"). However, Smt. Bhagirthi, vide registered sale deed dated 14.8.1958 registered on 16.8.1958 had sold the suit land to the appellant and respondent Nos. 6 to 8. 14. Now the first question to be seen is whether Smt. Bhagirthi Devi had become full owner of the suit land on the enforcement of the Act. It will be apposite to reproduce Section 14 of the Act :- "Section 14 : Property of 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 as 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 any such property held by her as Stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award, where the terms of the gift, will or other instrument or the decree, order or award, prescribe a restricted estate in such property." 15. Counsel for the appellant contended that since, Smt. Bhagirthi was limited owner of the suit land and was in possession of it and as such on the enforcement of the Act, she had become its full owner. For this contention, he has placed reliance on the following authorities :- (i) Vaddeboyina Tulasamma and others v. Vaddeboyina Sesha Reddi (dead) by L.Rs., AIR 1977 Supreme Court 1944. (i) Gopal Singh and another v. Dile Ram (dead) by LRs and others, 1988(1) PLR 230. (iii) Nazar Singh and others v. Jagjit Kaur and others, AIR 1996 Supreme Court 855; and (iv) Smt. Chimti and others v. Smt. Daultu and others, 1968 PLR Delhi 291. 16. Of course, the Full Bench of Delhi High Court at Shimla had held in Smt. Chimtis case (supra) that where a gift is made by a widow having only life State prior to commencement of the Act, then the donee becomes full owner. In the abovesaid case, the gift was made in favour of her daughter by the widowed mother and she was in possession of the gifted property on the date of commencement of the Act and according to the said authority, she had become the full owner in view of Section 14(1) of the Act. However, the Honble Supreme Court in Vaddeboyina Tulasammas case, Gopal Singhs case, and Nazar Singh as case (supra) had held that if a female Hindu was in possession of property in lieu of maintenance, compromise or otherwise and had a limited interest, then on the enforcement of Act on 17.6.1956, she became the full owner. There is no dispute about it that Smt. Bhagwani, who was the widow of Sis Ram, was entitled to maintenance from her husband, Sis Ram and she could have inherited the property from Sis Ram on his death in which she would have a limited interest till her death. The said limited interest, she would have on account of maintenance. There is no dispute about it that Smt. Bhagwani, who was the widow of Sis Ram, was entitled to maintenance from her husband, Sis Ram and she could have inherited the property from Sis Ram on his death in which she would have a limited interest till her death. The said limited interest, she would have on account of maintenance. If she had been alive and in possession of the suit property, then on enforcement of the Act, in the year 1956, in view of Section 14(1) of the Act, she would have become the full owner. However, Smt. Bhagirthi, who is the daughter of Sis Ram, did not have any right to maintenance under the customary law. She had no semblance of right to possess the property. It is not the case that she was allowed to retain the suit property in lieu of her maintenance till her life but she was allowed to retain the property till her life in view of the compromise which had taken place in the suit filed by Kundan etc. That limited right was granted to her in lieu of the gift deed read with the decree which was passed in favour of Kundan etc. In such circumstances, Section 14(1) would not be applicable to Smt. Bhagirthi but on the other hand Section 14(2) of the Act would be applicable as the decree only prescribes a restricted estate in such property to Smt. Bhagirthi. Section 14(1) and (2) should be read harmoniously because sub-section (2) is an exception to sub-section (1). With due respect, I differ with the authority of Full Bench i.e. Smt. Chimti and others v. Smt. Daultu and others (supra) in view of the authorities Vaddeboyina Tulasamma and others v. Vaddeboyina Sesha Reddi (dead) by LRs and Nazar Singh and others v. Jagjit Kaur and others (supra). Since, Smt. Bhagirthi had no right for maintenance or any other right to hold the property in suit as she was already married, so, she had not become the owner of the suit land on the enforcement of the Act. Therefore, she had no right to transfer the suit land in favour of appellant and respondent Nos. 6 to 8 by registered sale deed dated 14.8.1958 registered on 16.5.1958. 17. Therefore, she had no right to transfer the suit land in favour of appellant and respondent Nos. 6 to 8 by registered sale deed dated 14.8.1958 registered on 16.5.1958. 17. Counsel for the appellant also contended that the identity of the suit land has not been established and it cannot be said that the suit land was the same which was the subject-matter of controversy in the suit filed by Kundan etc. In my opinion, the contention of learned Counsel is not tenable. Both the courts below have held that the suit land is the property which was the subject-matter of dispute in the earlier suit as well as the gift deed. It may be stated here that Ram Nath etc. had filed a suit for possession of the property in dispute against appellant and respondent Nos. 6 to 8 during the life time of Smt. Bhagirthi Devi but the said suit was dismissed on the ground that they were not entitled to the possession of suit land till the death of Smt. Bhagirthi Devi. In that suit, no objection was taken that the suit land is not the same, which was the subject-matter of dispute in the gift deed and the earlier suit. Even in the written statement filed by the appellant and respondent Nos. 6 to 8, they had not disputed the identity of the suit land. There is no question that Smt. Lillawati d/o Bhagirthi and Smt. Somwati @ Shanti Devi d/o Lillawati had an independent right to maintenance from the property in dispute. 18. Counsel for the appellant also contended that they were bona fide purchasers for valuable consideration and as such their sale was protected under Section 41 of the Transfer of Property Act and further they had made full enquiries from the Patwari and as well as had inspected the revenue record and they could not know that Smt. Bhagirthi had only limited interest. In my opinion the contention of the learned Counsel is not tenable. The suit land is situated in village Ghagroo. They are also residents of the same village. They must be knowing about the history of the suit land. It is not the case that they belonged to a far off place and as such did not know about the history of the land. The suit land is situated in village Ghagroo. They are also residents of the same village. They must be knowing about the history of the suit land. It is not the case that they belonged to a far off place and as such did not know about the history of the land. Even if they had asked any old person, then they would have come to know about the history of the land. There is also no satisfactory evidence that before purchasing the land, they had made due enquiries and had checked the revenue record. DW3, Niranjan Singh stated that the revenue record was checked by Mohinder Nath, petition writer, but he has not been examined that he had checked the revenue record and was satisfied that the suit land was free from all encumbrances. In such circumstances, it cannot be said that the appellant and respondent Nos. 6 to 8 had purchased the land after through enquiry. As a sequel to the above finding, the appeal fails and the same is dismissed with costs. Appeal dismissed.