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2000 DIGILAW 193 (HP)

HEM CHAND v. HARI CHAND

2000-07-26

LOKESHWAR SINGH PANTA

body2000
JUDGMENT Lokeshwar Singh Pantaj.: This second appeal is directed by the plaintiffs against the judgment and decree dated 15.12.1992 of the learned District Judge (Forest), Shimla affirming the judgment and decree dated 31.12.1987 passed by the Sub Judge 1st Class, Theog in Civil suit No. 61/1 of 1979 whereby the suit of the plaintiffs for declaration and possession of the land was dismissed. The subject matter of the dispute between the parties is the land comprised in khata no. 10/20 min, kitas 13, measuring 36 bighas and 6 bis" as which is also denoted buy khata khatauni no. 10/18, situate in chak Nani Tehsil Theog, District Shimla, specifically described in the plaint and hereinafter referred to as the land in dispute. 2. There were three brothers, namely, Hari Ram, kharia and Delu, who had joint ownership and possession of the lands situated in three villages. Hari Ram died somewhere in 1954 before the Hindu Succession Act, 1956 came into operation. Hari Ram left behind his widow Smt. Jamani and married daughter Smt. Devku. His estate was inherited by Smt. Jamani. Smt. Jamani gifted some part of her land to one Jeet Ram son of her daughter and some other land was gifted by her in favour of plaintiff No. 1 Hem Chand son of kharia. In the year 1964, Smt. Jamani expressed her desire to kharia and Delu to give her some property for her maintenance and on her request kharia and Delu had parted the land in dispute on 3.2.1984 out of their shares to her and Smt. Devku with a specific condition that the land in dispute will be kept by them for their maintenance till their life time. Mutation No. 43 in the revenue record came to be sanctioned in the name of Smt. Jamani and her daughter Smt. Devku on 4.6.1964 by the revenue authority of the land in dispute. Smt. Jamani transferred the land in dispute to Hari Cand, defendant No.6 (respondent No.l herein) by way of execution ofg the sale ded dated 22.6.1979 for a consideration of Rs.40,000/-. Smt. Jamani transferred the land in dispute to Hari Cand, defendant No.6 (respondent No.l herein) by way of execution ofg the sale ded dated 22.6.1979 for a consideration of Rs.40,000/-. The plaintiffs filed the suit alleging, inter alia, that no ownership rights were intended to be conferred on Smt. Jamani and her daughter Smt. Devku defendant No. 1 (respondent No.2 herein) and the land in dispute was given to Smt. Jamani and Smt. Devku for their use with a clear understanding that after the death of Smt. Jamani and Smt. Devku, the land in dispute was to come back to kharia and Delu and in case they would die prior to the death of Smt. Jamani and her daughter Smt. Devku, the land in dispute was to revert back to the legal hens of kharia and Delu. But despite a clear understanding and condition Smt. Jamani and smt. Devku, defendant No. 1 sold the land in dispute to defendant No.6 and therefore, the sale deed was void and inoperative. On these premises, the suit for declaration and possession of the land in dispute came to be filed. 3. The suit was resisted and contested by defendant No. 6 only, In his written statement defendant No.6 purchaser of the land in dispute has taken preliminary objections inter alia, that the suit was not properly valued for the purposes of court-fees and jurisdiction; the plaintiffs were stopped from filing the suit; the suit was pre-mature and the plaintiffs had no cause of action for filing the suit. On merits, defendant No.6 stated that kharia and Delu were not exclusive owners in possession of the suit land in Chak Nani. Smt. Jamani and defendant No.l never wanted the land in dispute for themselves till their life time but they had become the absolute owners thereof as the land in dispute was given to them in lieu of their maintenance. Defendant No.6 also stated that the restriction, if any, imposed on the rights of Smt. Jamani and defendant No.l regarding alienation of the land in dispute could not be imposed and the said restriction was void. However, he admitted the relationship of kharia, Delu and Hari Ram to be the real brothers and further stated that the three brothers were living separately in three different villages and they had their separate residence, food etc. etc. However, he admitted the relationship of kharia, Delu and Hari Ram to be the real brothers and further stated that the three brothers were living separately in three different villages and they had their separate residence, food etc. etc. Hari Ram husband of Smt. Jamani and father of defendant No.l used to live in village Sunthi and was in exclusive possession of the land in that village. His brother Delu predecessor-in-interest of plaintiffs No.4 to 8 was in exclusive possession of the land in village Shungra and kharia father of plaintiff’s No. 1 to 3 was in exclusive possession of the land in village Kaljer. Defendant No. 6 also stated that on the death of Hari Ram his estates in both the chaks kaljer and Nani were inherited by his widow Smt. Jamani vide mutation No. 19 and 70 decided in her favour by the revenue officials and after the enforcement of Indian Succession Act, smt. Jamani had become the absolute owner of the land in dispute. It was also stated that some where in 1962-63, Smt. Jamani made an application for partition of the land in dispute before the Assistant collector 1st Grade, Theog and the matter was resolved by the parties out of the Court by family settlement and as per the family settlement, the land situate in Chak Nani was given to the share of Smt. Jamani which was already in her exclusive possession and the land of Nani-Kaljer (consisting of villages kaljer and Shungra) fell to the shares of kharia and Delu, predecessors-in-in-terest of the plaintiffs. Defendant No.6 also contended that mutation No. 125 attested in favour of plaintiff No. 1 was not of the land allegedly gifted to him by Smt. Jamani but in fact it was a mutation to give effect to the family settlement arrived at between the parties. Defendant No.6 denied the creation of any limited estate with respect to the land in dispute in favour of Smt. Jamani and defendant No.l. He has further averred that the land in dispute was purchased by him from Smt. Jamani and defendant No. 1 for a consideration of Rs.40.000/- and advance amount of Rs.9, 000/- was paid to them on 16.5.1979 and the balance amount was paid before the Sub Registrar on 22.6.1979 at the time of registration of the sale deed. He has alleged himself to be purchaser of the land in dispute in good faith and sought for dismissal of the suit. 4. Smt. Devku defendant No.l, b filed a separate written statement in which she admitted the claims of the plaintiffs in the suit as a whole. In their replication the plaintiffs reiterated and reasserted the averments made in the plaint and all the averments contrary taken in the written statement by defendant No.6 were controverter and contested. 5. On the controversial pleadings of the parties, the trial Court framed the following issues: "1. Whether the suit is not properly valued for the purposes of Court-fee and jurisdiction? ....OPD 2. Whether the suit is premature as alleged? ...OPD 3. Whether there is no cause of action for filing the present suit? ...OPP. 4. Whether the defendant No. 1 & 2 have limited rights of owner ship as alleged in para 2 & 3 of the plaint?...OPP 5. Whether the sale in favour of defendant No.3 (in fact defendant No.6) is void, in operative and without any legal necessity as alleged in para 3 of the plaint?...OPP. 5-A. Whether the plaintiff is estopped from withdrawing the admissions made in the first plaint?..OPD-6. 6. Relief." 6. The parties went to trial on the issues settled by the trial court and led their oral and documentary evidence. The plaintiffs examined seven witnesses and placed on record copies of the revenue records marked exhibits P-! to P-11, Exts PX-J to PX-1.1, Exts PW6/A and PW7/A. Defendant No.C in opposition to the suit had examined four witnesses and placed on record documents Exhibits D-1 to D-21. Defendant No. 1 Smt. Devku examined herself as DW-6. The learned trial Court under issue No. 1 held the suit properly valued for the purpose of court fees and jurisdiction. Issue No.2 was decided against the plaintiffs and in favour of defendants holding the suit having been filed at premature stage, findings under Issue No.3 were also recorded against the plaintiffs and in favour of the defendants. Under Issue No.4, the learned trial Court held that deceased Smt. Jamani and her daughter Smt. Devku defendant No.l were having limited rights in the land in dispute and they were entitled to its possession till their life time and were not entitled to alienate it. Under Issue No.4, the learned trial Court held that deceased Smt. Jamani and her daughter Smt. Devku defendant No.l were having limited rights in the land in dispute and they were entitled to its possession till their life time and were not entitled to alienate it. The findings of the trial court on Issue No.5 was that the defendant No.6 purchased the land in dispute in good faith believing smt. Jamani and defendant No. 1 to be the trie owners of the land in dispute on the basis of the revenue record. Issue No.5-A was decided against defendant No.6 having not pressed. Consequently, the suit was dismissed on the ground that the plaintiffs had no cause of action at the stage of filing of the suit and the suit was pre-mature. 7. Both the parties being aggrieved against the judgment and decree of the trial court preferred two separate appeals before the learned District Judge. The learned District Judge heard and decided both the appeals by a common judgment and decree dismissing the appeal of defendant No.6 holding Smt. Jamani and Smt. Devku defendant No.l to be the owners in possession of the land in dispute, who had pre-existing rights in the land in dispute and, therefore, they were perfectly competent to sell the land in dispute in favour of defendant No.6. Findings of the trial court under Issues No.4 & 5 were reversed and consequently, the appeal of defendant No.6 was allowed to that extent whereas findings of the trial court under Issues No. 2 & 3 were upheld dismissing the appeal of the plaintiffs. 8. Feeling aggrieved, the plaintiffs have filed the present second appeal challenging the correctness and validity of the judgment and decree of the learned District Judge. The appeal came to be admitted on 3.3.1993 on the following substantial questions of law:- 1. Whether on the facts proved, it can be held that Smt. Jamni and Smt. Devku had pre-existing right of maintenance from S/Shri Kharaiaand Delu? 2. Whether the provisions of Section 14 (1) of the Hindu Succession Act can be said to apply in the facts and circumstances in order to hold that Smt. Jamni and Smt. Devku had become full owners of the property? 9. I have heard Mr. T.R. Chandel learned counsel for the plaintiffs and Mr. B.R. Verma, learned counsel for defendant No.6 the purchaser of the land in dispute. 9. I have heard Mr. T.R. Chandel learned counsel for the plaintiffs and Mr. B.R. Verma, learned counsel for defendant No.6 the purchaser of the land in dispute. 10. It was contended by Mr. Chandel learned counsel that the findings and reasonings recorded by the learned District Judge holding Smt. Jamani and Smt. Devku defendant No.l to be the absolute owners and in possession of the land in dispute are manifestly erroneous and perverse based upon non-application of mind, mis-reading of the oral and documentary evidence on record adduced by the plaintiffs and mis- interpretation of the provisions of Section 14( 1) and 14(2) of the Hindu Succession Act. The learned counsel contended that Smt. Jamani and smt. Devku, defendant No. 1 had no pre-existing rights in the land in dispute as the property was given to them by kharia and Delu out of their respective shares for their subsistence with a specific condition that after their deaths the property would revert to kharai and Delu and, therefore, the present case was covered under Section 14(2) and not under Section 14(1) of the Hindu Succession Act as held by the learned District Judge. According to the learned counsel Smt. Jamani had inherited the estate of her husband Hari Ram after his death and she gifted the said entire estate of Jeet Ram and Hem Chand but both these persons had not cared to maintain Smt. Jamani and then she approached kharia and Delu to give some land to her for maintenance and both these persons out of sympathy being the widow of their brother parted with the land in dispute to her with the above-said clear understanding and as such both Smt. Jamani and Devku defendant No. 1 had no pre-existing rights in the land in dispute and Smt. Jamani after getting the estate of her husband in inheritance could not claim maintenance from the brothers of her husband. Similarly, Smt. Devku defendant No. 1 being married daughter was also not entitled to claim maintenance from her uncles, namely, kharia and Delu. The teamed counsel contended that the sale of the land in dispute by Smt. Jamani and Devku defendant No. 1 in favour of defendant No.6 was neither bonafide nor it was valid as both these women were not owners of the land in dispute and, therefore, the sale deserves to be set-aside. According to Mr. The teamed counsel contended that the sale of the land in dispute by Smt. Jamani and Devku defendant No. 1 in favour of defendant No.6 was neither bonafide nor it was valid as both these women were not owners of the land in dispute and, therefore, the sale deserves to be set-aside. According to Mr. Chandel, Smt. Jamani and Smt. Devku defendant No. 1 and acquired limited rights in the land in dispute and the sale in favour of defendant No.6 of the land in dispute was a dubious transaction and the possession with defendant No.6 was illegal and no right and title under the invalid sale could be passed in favour of defendant No.6 and, therefore, the suit was not pre-mature. The learned counsel has also contended that Smt. Jamani widow of the brother of kharia and Delu as well as his daughter Smt. Devku defendant No. 1 both were not entitled to get maintenance rights from kharia and Delu under the Hindu Succession Act nor they were heirs under Class-I and Class- II of the Schedule of Hindu Succession Act in the land in dispute which was exclusively owned and possessed by kharia and Delu and after their deaths by the plaintiffs the legal heirs of kharia and Delu and therefore, on this ground as well the finding of the learned District Judge holding that the case was covered under Section 14(1) and not under Section 34(2) of the Hindu Succession Act was grossly erroneous, perverse and un-sustainable. 11. Per contra, Mr. B.R. Verma, learned counsel for defendant No.6 purchaser of the land in dispute contended that as per the family settlement entered into between kharia, Delu and Smt. Jamani, they divided their property situated in three different villages in equal shares. Kharia and Delu brothers of Hari Ram deceased husband of Smt. Jamani retained the land in village Kaljer and Shungra whereas the land in dispute in Chak Nani, to the extent of l/3rd share of Hari Ram was inherited by Smt. Jamani under the family settlement and on inheritance Smt. Jamani became the absolute owner in possession of the land in dispute as she had the pre-existing rights therin. According to the learned counsel Smt. Devku defendant No. 1 had lateron resiled and joined the plaintiffs to support their claim made in the suit. According to the learned counsel Smt. Devku defendant No. 1 had lateron resiled and joined the plaintiffs to support their claim made in the suit. According to the learned counsel the land in dispute was purchased by defendant No.6 under bonafide belief gathered from the revenue record placed on record in which both Smt. Jamani and Smt. Devku defendant No. 1 were recorded as absolute owners in possession and, therefore, the sale deed executed by Smt. Jamani and Smt. Devku, defendant No. 1 cannot be held to be invalid and the learned District Judge has rightly recorded the finding that the controversy between the parties was covered under Section 14(1) and not under Section 14(2) of the Hindu Succession Act. Mr. Verma also contended that Smt Jamani had acquired her rights in the land in dispute by inheritance in a family settlement which can be termed as partition between the parties and, therefore, she was the absolute owner of the property and as such she could alienate it by way of sale in favour of defendant No.6 and the present dispute was entirely covered under Section I4f 1) of the Hindu Succession Act. 12. I have given my anxious and thoughtful consideration to the rival contentions of the learned counsel on both sides. 13. The factual position as emerges from the oral evidence adduced by the plaintiffs is that Hari Ram husband of Smt. Jamani admittedly had died before coming into force of the Hindu Succession Act and his property had been inherited by his widow Smt. Jamani in all the above-said three villages. Smt. Jamani donated some land of her share in favour of jeet Ram son of her daughter who had lateron refused to maintain her. She also gifted her share of land in favour of plaintiff No. 1 Hem Chand son of kharia. When she was left with no land inherited by her she approached kharia and Delu brothers of her husband Hari Ram with a request to part some landed property to her and her daughter Smt. Devku defendant No. 1 for their subsistence during their life time, kharia and Delu predecessors-in-interest of the plaintiffs considering the plight of Smt. Jamani had agreed to part with the land in dispute to her out of their respective shares for her subsistence. From Jamabandi for the year 1954-55 of Mauja Nani, marked Ex.D-6, it is clear that Smt. Jamani gifted her share inherited by her after the death of her husband Hari Ram in favour of Jeet Ram son of her daughter vide mutation No.30 attested on 31.3.1959 by the competent revenue authority. The land to the extent of l/3rd share in mauja kaljer was inherited by Smt. Jamani and mutation in this regard was attested by the Assistant Collector 1st Grade, Theog on 25.3.1955 marked Ext.D-7. In mutation of mauja Nani attested by the revenue officer on 20.3.1955, Smt. Jamani inherited l/3rd share of her husband out of the total area of the land measuring 55.2 bighas. Mutation Ex.D-9, was attested by the Assistant collector 2nd Grade on 20.3.1955 in respect of the land in mauja klajer whereby Smt. Jamani had inherited l/3rd share of the land in kita 37 admeasuring 103.10 bighas. From the oral testimony of plaintiff No. 1 Hem Chand corroborated by PW-2 Mast Ram, PW-3 Narayan Singh and PW-4 Puran, it stands clearly proved that Smt. Jamani had inherited estate of her husband Hari Ram to the extent of l/3rd share out of the total shares owned by all the three brothers, namely, kharia, Delu and Hari Ram. Smt. Jamani thereafter gifted her share of inheritance to Jeet Ram and Hem chand plaintiff No. 1 and she was left with no landed property to maintain herself. She requested kharia and Delu to part with some land to her out of their respective shares for the purpose of her subsistence during her life time. Smt. Jamani had applied partition of the joint property somewhere in the year 1962-63 and without seekung legal partition from the authority concerned, kharia, Delu and Smt. Jamani settled their claims of the joint property by family settlement and thereafter got the property according to their respective shares situated in all the three villages. After family settlement, when Smt. Jamani approached kharia and Delu, they gladly accepted her request to part with their respective shares of the land in mauja Nani which is the subject matter of the controversy. In copy Rojnamcha dated February 3,1964 marked Ex.P-2 the concerned revenue official entered the necessary mutation No.43. After family settlement, when Smt. Jamani approached kharia and Delu, they gladly accepted her request to part with their respective shares of the land in mauja Nani which is the subject matter of the controversy. In copy Rojnamcha dated February 3,1964 marked Ex.P-2 the concerned revenue official entered the necessary mutation No.43. The contents of this document would reveal that on February 3, 1964 kharia and Delu appeared before the revenue official and stated that land measuring 36.6, kita 13, khewat No.228 after settlement owned by them was given to Smt. Jamani widow of Hari Ram and Smt. Devku defendant No.l under Section 14(2) of the Hindu Succession Act, 1956 keeping in view the sanctity of Hindu religion and the Act. The land was given to both these women with a specific stipulation that they had no right to sell, mortgage and make any gift thereof nor they had any other right whatsoever of ownership or possession therein. It was also stated that both kharia and Delu would be entitled to get the land back after the deaths of Smt. Jamani and Smt. Devku and in the event of the deaths of kharia and Delu preceding the deaths of Smt. Jamani and Smt. Devku, the land would revert back to their legal hens. On the basis of this document, mutation No.42 was attested by the competent revenue officer on 4.6.1964 under Section 14(2) of the Hindu Succession Act, in the presence of kharia, Delu and Smt. Jamani. 14. In rebuttal to the evidence of the plaintiffs, Hari Chand defendant No.6 appeared as DW-1 and stated that he purchased the land in dispute from Smt. Jamani and Smt. Devku in June 1979 for consideration of Rs. 40,000/- as a bonafide purchaser after oral vertification of their ownership rights from Patwari Halqua and also examining revenue entries uin the record of rights. He tendered in evidence copy of jamabandis Exts. P-5 and DX and copies of mutations Ext.s D-7 to D 11. Smt. Devku defendant No. 1 in her statement deposed that her father Han Ram was real brother of kharia and Delu and they were living jointly. After the death of her father, his landed property was inherited by her mother Smt. Jamani in villages Shungra, Kaljer and Chak Nani, respectively. Smt. Devku defendant No. 1 in her statement deposed that her father Han Ram was real brother of kharia and Delu and they were living jointly. After the death of her father, his landed property was inherited by her mother Smt. Jamani in villages Shungra, Kaljer and Chak Nani, respectively. Her mother Smt. Jamani bequeathed her share of land of village Chak Nani in favour of Jeetu alias Jeet Ram for her maintenance and the landed property inherited by her mother situated in villages Kaljer and Shungra was gifted to Hem Chand, plaintiff No. 1. Jeetu alias Jeet Ram in whose favour the land was bequeathed by her mother had stopped maintaining her mother and she was left with no option but to appraoch kharoia and Delu requesting them to provide her maintenance. Kharia and Delu showed sympathy to her mother and had given land in dispute to her with a specific condition that till her mothers life time her mother would enjoy the benefits of the land and she would not be entitled to sell it to anyone. She stated that nothing was given to her by kharia and Delu. In her corss- examination, she stated that she had not sold the land in dispute to defendant No.6 Hari Chand. She denied having filed written statement in the Court by her through a layer. She was informed simply by her mother that some land was sold to Hari Chand, defendant No.6 but no sale consideration was paid to her either by her mother or vendee. 15. From the entire oral and documentary evidence led by the parties, it stands proved that the land in dispute fell in he shares of kharia and Delu predecessors-in-interest of the plaintiffs after the family settlement was arrived at between them and Smt. Jamani widow of Hari Ram. It is an admitted case of the parties that after the death of Hari Ram his entire estate was inherited by his widow Smt. Jamani. This fact stands proved on record from copies of mutations Exts. P-4 to P-6 in which it has clearly been shown in the remarks column dated 22.2.1955 and 21.2.1955, respectively, that the estate of Hari Ram had devolved upon Smt. Jamani and the mutation of inheritance stood sanctioned in her favour. This fact stands proved on record from copies of mutations Exts. P-4 to P-6 in which it has clearly been shown in the remarks column dated 22.2.1955 and 21.2.1955, respectively, that the estate of Hari Ram had devolved upon Smt. Jamani and the mutation of inheritance stood sanctioned in her favour. On careful appraisal and consideration of these documents, it is proved that after the death of Hari Ram his widow Smt. Jamani had inherited l/3rd share of her husband and she became absolute owner in possession of the estate inherited by her. Copy of Mutation No.30 Ex.P-7 would go to show that Smt. Jamani gifted l/3rd of her share of the land inherited by her situated in Mauja Nani in favour of Jeet Ram and mutation in respect of the said land was sanctioned by the revenue official on 21.3.1959. Again Smt. Jamani gifted l/3rd of her share to Hem Chand, plaintiff No. 1 of the land situate in mauja kaljer and mutation of the said land came to be attested in his favour by the revenue authority on 3.6.1964, vide copy marked as Ext.P-10 on the record. Thus, the documents relied upon by the parties would clearly proved that after becoming absolute owner of the share of her husband, Smt. Jamani had gifted her share in favour of Jeet Ram and plaintiff No. 1 in the year 1950 and 1964, respectively, and thereafter, she had lost her right in the said properties. PW- Mast Ram and PW-Puran, have categorically stated in their testimony that the land in dispute was transferred by kharia and Delu in favour of Smt. Jamani and Smt. Devku defendant No. 1 for their maintenance when Smt. Jamani had approached kharai and Delu when she was left high and dry by the doness to whom she had already bequeathed her share of property. From trie copy of Roznamcha marked Ext.P-2 in which it was clearly mentioned that both these women had no right, title or interest in the land and further that they had no right to sell, alienate or make gift or will of the land in dispute to any one during their life time. It has also been proved from the oral evidence of the plaintiffs as well as a copy of Rapat Rojnamcha Ext. It has also been proved from the oral evidence of the plaintiffs as well as a copy of Rapat Rojnamcha Ext. P-2 that the land in dispute was to revert back to kharia and Delu after the respective deaths of Smt. Jamani and Smt. Devku defendant No. 1, and had kharia and Delu died preceding Smt. Jamani and Smt. Devku the land in dispute was to revert back to legal heirs of kharia and Delu. The transfer of the land in dispute was accepted by Smt. Jamani and Smt. Devku, defendant No.l without raising any objection to the clear conditions and rightly so because they had no right or claim over the land in dispute which was given to them by kharia and Delu from their respective shares after taking pity on them more specifically on Smt. Jamani who lost her entire estate and left without any piece of land for her inheritance. The plaintiffs have clearly proved on record that before 1964 Smt. Jamani and Smt. Devku defendant No.l, had no pre-existing right in the land in dispute. The mutation No.43 Ex.P-3 relied upon by the learned District Judge in favour of defendant No.6 has been sanctioned on the basis of Ext.P-2 in which the land in dispute had been mutated in favour of Smt. Jamani and her daughter Smt. Devku defendant No.l in equal share under Section 14(2) of the Hindu Succession Act. Once it is proved on record by the plaintiffs that Smt. Jamani had lost her right in the land in dispute and had no pre-existing right in the property, Smt. Jamani and Smt. Devku defendant No. 1 were not the absolute owners in possession of the land in dispute and therefore, they were not competent to make sale of the land in favour of defendant No.6. The defendant No.6 has failed to prove his claim that Smt. Jamani got the land in dispute after partition of the entire estate of her husband. There was no such legal partition entered into between Kharia, Delu and Smt. Jamani at all. Defendant No.6 has placed on record documents Exts. D-2 to D-4, copies of Parivar Registers and Exts. D-5 to D-15, copies of Voter list and some more copies of Family Registers Exts. D-16 to D-20 to prove the factum of private partition between predecessors-in-interest of the plaintiffs and Hari Ram predecessors-in-interest of Smt. Jamani and Smt. Devku. Defendant No.6 has placed on record documents Exts. D-2 to D-4, copies of Parivar Registers and Exts. D-5 to D-15, copies of Voter list and some more copies of Family Registers Exts. D-16 to D-20 to prove the factum of private partition between predecessors-in-interest of the plaintiffs and Hari Ram predecessors-in-interest of Smt. Jamani and Smt. Devku. On examination and consideration of these documents, it was not proved that some private partition was effected between the parties. It was the case of both the parties in their pleadings that Hari Ram predecessors-in-interest of Smt. Jamani and defendant No. 1 and predecessors-in-interest of plaintiffs were residing in three different places as they were having landed properties in three different villages. The entries in the Parivar Registers and Voters list therefore, pertain to the names of the family members of Hari Ram, Kharia and Delu residing at three different places but these entries would not prove that Hari Ram, Kharia and Delu the three brothers had effected any private partition between themselves and then started living separately from each other. There is not an iota of evidence led by defendant No. 6 to prove his defence and his submission on this issue cannot be accepted. 16. The finding of learned District Judge relying upon document Ext. P-3 that Smt. Jamani and Smt. Devku defendant No. 1 had pre-existing right in the land in dispute and, therefore, their case was covered by Section 14(1) of the Hindu Succession Act and not under Section 14(2), appears to be legally not sustainable and factually wrong and the said finding has been recorded without assigning any reason. The learned trial court has given detailed reasons in holding that once Smt. Jamani bequeathed her property inherited by her to the extent of the Share, of her husband, she after the enforcement of the Hindu Succession Act had become fuli and absolute owner of the said properties which she had gifted lateron to Jeet Ram in the year 1959 and Hem Chand plaintiff No.l in the year 1963 respectively and mutation thereof came to be registered in revenue record on 3.6.1964. Smt. Jamani and Smt. Devku defendant No. 1 had no pre-existing right in the land in dispute which was given to them by Kharia and Delu for their subsistence when Smt. Jamani and lost her inherited property by way of gifts made in favour of Jeet Ram and Hem Chand plaintiff No.l as Smt. Jamani was left without any landed property. Since Smt. Devku defendant No. 1 was already married, therefore there was no question of giving landed property to her even for her maintenance. In this view of the matter, the learned trial court was right to hold that the land in dispute was covered under Section 14(2) of the Hindu Succession Act and not under Section 14(1) of the Act as held by the learned District Judge. 17. The contention of the learned counsel for defendant No. 6 that Smt. Jamani possessed the land in dispute as full owner thereof and not as limited owner which she acquired in any other manner whatsoever as prescribed in Explanantion of Section 14(1) of Hindu Succession Act, was misplaced and untenable. The land in dispute was not acquired by Smt. Jamani and Smt. Devku defendant No. 1 either by way of partition or in any other manner whatsoever nor they were full owners thereof as the land in dispute was given to them in which they had no pre- existing right and therefore, the trial court has rightly held that the land in dispute was covered under Section 14(2) of the Hindu Succession Act. Once it is proved that Smt. Jamani and Smt. Devku defendant No. 1 had no pre-existing right in the land in dispute, they couldn’t convey more than they had and, therefore, the land in dispute was fully covered by Sub-section (2) of Section 14 and so they could not get the benefit of sub-section (1) and therefore, the land in dispute could not be sold by them to defendant No. 6. In Verinder Parkash v. Smt. Manshan, 1982, S.L.J.(HP), 159, a Division Bench of this Court while dealing with the case of one Smt. Manshan, who had given her property to Smt. Kirpi for her life time on the condition that Smt. Kirpi would not alienate the property by sale or mortgage to any other person and the property would revert to Smt. Manshan after Smt. Kirpis death but despite this condition, Smt. Kirpi gifted away the property to Verinder Parkash and in the facts and circumstances the learned Judges held that Smt. Kirpi had no right to transfer the property by way of gift as she was not having and pre-existing right in the said property and the case was covered under Section 14(2) of the Hindu Succession Act. The decision rendered by the learned Judges in that case to some extent if not wholly will cover the factual situation of the present case. In Ram Sarup and others v. Smt. Patto and others, AIR 1981 Punjab & Haryana 68, the learned Single Judge observed that mutation order was in instrument for the purpose of Section 14(2). 18. The applicability of the provisions of Section 14(1) & 14(2) of the Hindu Succession Act has been exhaustively dealth by their Lordships of the Supreme Court in Vaddeboyina Tulasamma and others v. Vaddeboyina Sesha Reddi (dead) by LRs. AIR 1977 Supreme Court 1944. In this case, their Lordships laid down the law as under: "Sub-section (1) of Section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property. Sub-section (2) is more in the nature of proviso or exception to Sub-section (l). It excepts certain kinds of acquisition of property by a Hindu female from the operation of Sub-Section (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of woman in Hindu Society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in sub-section (1). It cannot be interpreted in a manner which would rob sub-section (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub-section (1). Sub-section (2) must, therefore, behead in the context of sub-section (1) so as to leave as large a scope for operation as possible to sub- section (1) and so read,, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of sub-section (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property." (paras 3 &4). 19. From the well settled position of law in the aforesaid decision of the apex Court it becomes clear that while determining whether a particular case is governed by Section 14(1) or Section 14(2), the section has to be read as a whole and it would depend upon the facts of each case whether the same is covered by Section 14(1) or Section 14(2). Sub-Section (2) has been held as more in the nature of exception or proviso to sub-section (1) of Section 14. It comes into operation only if acquisition in any of the methods indicated therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of property. In Smt. Jaswant Kaur v. Major Harpal Singh, Latest Judicial Reports 1990(1) 774, it has been held by the apex Court that acquisition of property by Hindu female under a written instrument or a decree of the Court and where such acquisition was not traceable to any antecedent right, then sub-clause (2) of Section 14 alone would be attracted. In Smt. Jaswant Kaur v. Major Harpal Singh, Latest Judicial Reports 1990(1) 774, it has been held by the apex Court that acquisition of property by Hindu female under a written instrument or a decree of the Court and where such acquisition was not traceable to any antecedent right, then sub-clause (2) of Section 14 alone would be attracted. In Smt. Himi (Smt.) d/o. Lachhmu (Smt.) and another v. Hira Devi Smt. Widow of Budhu Ram and others 1996( 10) Supreme Court cases 642, the general principles laid down in V. Tulasamma v. Sesha Reddy, AIR 1977 SC 1944 dealing with the application of the provisions contained in S 14 sub-sections (1) & (2) of the Hindu Succession Act were reiterated and it is further held that it is no doubt true that sub-section (2) of Section 14 of the Hindu Succession Act is a proviso to sub-section (1) of Section 14. But Section 14 sub-section (1) would apply only if the property is acquired by a female Hindu in lieu of maintenance or by virtue of any pre-existing right. Again in Vankamamidi Venkata Subba Rao v. Chatlapalli Seetharamaratna Ranganayakamma, (1997)5 Supreme Court Cases 460, it was held that the right of Hindu woman would be governed if the right was created by an instrument in recognition of pre-existing right or right acquired for the first time in which no pre-existing right was created, the parties would be governed by sub-section (2) of S.14. In C. Masilamani Mudaliar and others v. Idol of Sri Swaminathaswami Swaminathaswami Thirukoil and others (1996)8 Supreme Court Cases 525, the same settled principle of law was reiterated by the apex Court. In recent judgment in Smt. Naresh Kumari (dead) by LRs and another v. Shakshi Lal (dead) by LRs and another AIR 1999 Supreme Court 928, their Lordships have held that language in sub-section (1) of S.14 makes it clear that all what has to be shown by a female Hindu is that she had a right in the property in question and she is possessed of that property. If a female Hindu is put in possession of any property pursuant to her right of maintenance her limited right or interest in the property thus far, by virtue of S.14(1), blossoms into full ownership. On the other hand sub-section (2) of S.14 is in the nature of exception or proviso to sub-section (1). If a female Hindu is put in possession of any property pursuant to her right of maintenance her limited right or interest in the property thus far, by virtue of S.14(1), blossoms into full ownership. On the other hand sub-section (2) of S.14 is in the nature of exception or proviso to sub-section (1). Sub-section (1) makes a widow, who had a limited interest, to be a full owner regardless whether acquisition was prior to or after the coming into force of the 1956 Act. 20. Applying the aforesaid settled legal position to the facts of the present case, it can be safely said that by virtue of Rapat Roznarncha Ex.P-2, right for the first time was created in favour of Smt. Jamani and Smt. Devku defendant No. 1 to remain in possession of the property belonging to Kharia and Delu only during their life time and as that right was covered for the first time under the consented arrangement between them and was not in lieu of any pre-existing right of Smt. Jamani and Smt. Devku, in Kharias and Delus shares of property, Section 14(2) would apply to the facts of the case and not Section 14(1) as wrongly held by the learned District Judge. It is difficult to appreciate how the learned District Judge persuaded herself to hold that Smt. Jamani and Smt. Devku had pre-existing right in the land in dispute and were thus the absolute owners irrespective of they being made limited owners by inserting S.14(2) of the Act in mutation No.43 Ex.P-3. It is obvious that defendant No. 6 who purchased the property could not claim a better title to the land in dispute than what was available to Smt. Jamani and Smt. Devku. If Smt. Jamani and Smt. Devku were not full owners of the land in dispute, they had no right to transfer the land in dispute by way of sale in favour of defendant No. 6 purchaser. In the absence of any valid transfer by Smt. Jamani and Smt. Devku defendant No. 1, the plaintiffs who are the reversioners of Kharia and Delu would get the right in the land in dispute after the deaths of Smt. Jamani and Smt. Devku and the alienee would have no right over it thereafter. In the absence of any valid transfer by Smt. Jamani and Smt. Devku defendant No. 1, the plaintiffs who are the reversioners of Kharia and Delu would get the right in the land in dispute after the deaths of Smt. Jamani and Smt. Devku and the alienee would have no right over it thereafter. Thus, the submission made on behalf of defendant No. 6 that the sale deed dated 22.6.1979 (Ext.P-1) made by Smt. Jamani and Smt. Devku was valid as the vendors had the pre- existing right in the land in dispute and hence it would fall outside the purview of sub-section (2) of Section 14 and would fall in sub- section (1) of Section 14 of the Act is misconceived and cannot be accepted. The ratio of the decision in Balwant Kaur and Another v. Chanan singh and others, 2000 AIR SCW 1518 will be of no assistance to defendant No. 6 in the present case. In that case, their Lordships while considering the provisions contained in Section 14(1) of Hindu Succession Act and Hindu Adoptions and Maintenance Act, 1959, have held that destitute widowed daughter has a right to claim maintenance from her father both during his life time and also against his estate after his death and the property bequeathed to such widowed daughter by father would be in lieu of her pre-existing right of maintenance and widowed daughter would therefore, become absolute owner of bequeathed property even if will had granted life interest only. In the present case as discussed in the earlier part of the judgment, the land in dispute was never given to Smt. Jamani and Smt. Devku by Kharia and Delu for their maintenance being an estate of Hari Ram, their husband and father respectively, but as a gesture, after showing sympathy and pity to them more especially to Smt. Jamani who was left high and dry by the doness Jeet Ram and Hem Chand, plaintiff No.l in whose favour Smt. Jamani bequeathed her entire share of the property inherited by her after the death of her husband Hari Ram. Smt. Jamani widow and Smt. Devku defendant No. 1 a married daughter of deceased Hari Ram, both were not entitled to claim maintenance under Ss. Smt. Jamani widow and Smt. Devku defendant No. 1 a married daughter of deceased Hari Ram, both were not entitled to claim maintenance under Ss. 18,21 and 22 of the Hindu Adoption and Maintenance Act, 1959 from the shares of Kharia and Delu as both these women would not fall in any of the categories enumerated in those provisions and as such they had no right of maintenance in the land in dispute which was the absolute property of Kharia and Delu and after their deaths of their reversioners who are the plaintiffs in the present suit. 21. In this view of the matter, the sale made by Smt. Jamani and Smt. Devku defendant No. 1 of course she had denied having executed any sale deed and receipt of sale consideration money in her written statement and oral testimony in favour of defendant No. 6 has rightly been held to be null and void by the learned trial court and the contrary view taken by the learned District Judge is wrong. The sale deed Ext.P-1 made by Smt. Jamani and Smt. Devku defendant No. 1 who had no pre-existing right in the land in dispute, is held to be inoperative, ineffective and null and void as both or any of them could not sell the land in dispute to defendant No. 6 or to any other person as it was not their property. 22. The next point involves for determination and consideration is whether defendant No. 6 was a bonafide purchaser of the land in dispute and in support thereof, defendant No. 6 appeared as DW-1 and deposed that he had purchased the land in dispute under a registered sale deed Ext.P-1 for a consideration of Rs.40,000/- after consulting the latest revenue record and also verifying the status of Smt. Jamani and Smt. Devku, from Patwari Halqua. No doubt, Smt. Jamani and smt. Devku were recorded as owners in cultivator possession of the land in dispute in jamabandies Ext.PX-2 and PX-3 in the years 1966-67 and 1977 respectively, but the said entries in the revenue record appear to be factually wrong and not corrected and maintained properly in the teeth of copy of Roznamcha Waquiati (Ext.P-2) and the copy of mutation attested by the revenue official on 4.6.1964 marked Ext. P-3. P-3. In mutations Ext.s P-3 and P-4 Smt. Jamani was shown as owner in possession of the property inherited by her after her husbands death in Mauza Nani. Ext. P-5 is a copy of mutation in respect of Mauza Kaljer in which Smt. Jamani has been shown having inherited l/3rd share of the land after her husbands death. All these documents pertain to the year 1955. Similar and identical are the entries in mutation Exts. P-7 and P-8 in respect of Mauza Nani and Kaljer prepared in the year 1959 and 1963 respectively. In mutation entered by the revenue official on 25.2.1964 in respect of Mauza Nani marked Ext. P-9 it has been reflected that land measuring 36.6. bighas (land in dispute) had been given to Kharia and Delu in a family settlement and this mutation was attested by the revenue authority on 3.6.1964. It appears that the name of Smt. Jamani and Smt. Devku in subsequent jamabandies had been shown in causal and routine manner without making proper correction of the names of true owners and the increased revenue records will be of no help to defendant No. 6 who could not have purchased the land in dispute which was not acquired by Smt. Jamani and Smt. Devku in lieu of maintenance or by virtue of any pre-existing right. If defendant No. 6 was misled by Smt. Jamani or by Patwari Halqua about the status of Smt. Jamani and smt. Devku of the land in dispute, the plaintiffs who are predecessors-in-interest of Kharia and Delu cannot be deprived of their legitimate claim of the proeperty and as such, defendant No. 6 cannot be said to be a bonafide purchaser of the land in dispute since he had no title or interest in the property as a bonafide purchaser. 23. Both the courts below have held that the suit of the plaintiffs was pre-mature as it was filed when Kharia, Delu and Smt. Jamani were all alive and pursuant to the stipulation imposed in copy of Roznamcha Waquaiti dated 3.2.1964 Ext.P-2, the land in dispute would revert ot Kharia and Delu only after the deaths of Smt. Jamani and Devku or if they had died prior to Smt. Jamani and Devku the estate would revert to the legal representatives of Kharia and Delu respectively. The suit was also dismissed on the ground that no cause of action has arisen to Kharia and Delu and after their deaths to the plaintiffs till Smt. Jamani who had died before the deaths of Kharia and Delu but during the life time of Smt. Devku defendant No. 1 as per stipulation in document Ext.P-2. Both the courts below have wrongly dismissed the suit being premature and without cause of action. The cause of action had arisen to Kharia and Delu when Smt. Jamani and Smt. Devku during their life time had violated the stipulation incorporated in document Ext.P-2 by transferring in the land in dispute in favour of defendant No. 6 by sale. Kharia and Delu being absolute owners during their life time could have filed the suit for recovery of their property and after their deaths their legal representatives the plaintiffs have full right to sue Smt. Jamani, Smt. Devku and defendant No. 6 purchaser who had no right, title or interest in the property in the teeth of the specific conditions and stipulation that Smt. Jamani and Smt. Devku had no right, title or interest in the land in dispute to alienate or transfer etc. it, in any manner whatsoever to any person. The findings of both the courts below dismissing the suit are contrary to legal and factual situation or record and these are set aside. The substantial questions of law formulated above shall stand decided in favour of the plaintiffs. 24. No other point has been urged by the learned counsel on either side. 25. In the result, the appeal is allowed, holding that the sale of the land in dispute in favour of defendant No. 6 is declared inoperative, void and illegal and not binding upon the plaintiffs. Consequently, the suit of the plaintiffs is decreed for declaration and possession as claimed in the plaint. However, the parties are left to bear their own costs.