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2004 DIGILAW 70 (PNJ)

Lal Chand v. Kali Bai

2004-01-21

HEMANT GUPTA

body2004
Judgment Hemant Gupta, J. 1. The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below arising out of a suit for declaration filed by the plaintiff-respondent. 2. The case of the plaintiff is that her father Tola Ram had three wives; namely Ghanni Bai, Kishani Bai and Ram Ditti. Ghanni Bai and Kishani Bai died issueless. Plaintiff and defendants No. 5 Lal Chand are the children of Tola Ram from his third wife Ram Ditti. Defendants No. 1 to 4 are the sons of defendant No. 5 Lal Chand. Tola Ram and his brother Ganesha Ram died at the time of partition of the country. In lieu of the land left by Ganesha Ram in Pakistan, defendant No. 5 Lal Chand was allotted land in village Kirawar being the legal heir of deceased Ganesha Ram. Ganesha Ram has died issueless. In lieu of the land owned by Tola Ram in Pakistan, land was allotted in village Bhurtana to Ghanni Bai widow of Tola Ram and defendant No. 5 Lal Chand in equal shares. After consolidation, the land was allotted to defendant No. 5 Lal Chand and deceased Smt. Ghanni Bai. The land was jointly owned by Ghanni Bai and Lal Chand but Lal Chand, out of his greed, did not allow Ghanni Bai to reap the fruits of the land. She filed an application for partition of the land and started living separately. Lal Chand filed a civil suit No. 203 of 1958 seeking declaration that Smt. Ghanni Bai was not the owner of the land. She had been given the land in lieu of maintenance and that she has no right to get the land partitioned. This suit was compromised on 7.4.1960 and Ghanni Bai was held entitled to get the land partitioned but Ghanni Bai was restrained from alienating the suit land. The plaintiff has asserted that such clog on the right to alienate the property is fraudulent and by misrepresentation. It was stated that Smt. Ghanni Bai was the absolute owner of her share in the property after the commencement of the Hindu Succession Act, 1956 . The plaintiff challenged mutation No. 644 on the basis of Will dated 21.09.1978 sanctioned in favour of defendants No. 1 to 4 as illegal and void. It was stated that Smt. Ghanni Bai was the absolute owner of her share in the property after the commencement of the Hindu Succession Act, 1956 . The plaintiff challenged mutation No. 644 on the basis of Will dated 21.09.1978 sanctioned in favour of defendants No. 1 to 4 as illegal and void. It was alleged that the plaintiff being the daughter of Ghanni Bai would succeed to her estate on the basis of Will dated 16.12.1977. The plaintiff claimed that Will dated 21.09.1978 was never executed by Ghanni Bai. She was not in her senses. The Will has been obtained under undue influence, misrepresentation and fraud. 3. Defendant Nos. 1 to 4 filed a joint written statement. It was admitted by them that in lieu of the land held by Tola Ram in Pakistan, Ghanni Bai and Lal Chand were allotted land in equal shares in village Burtana and Paposa. After consolidation operations were completed, the land in dispute was given in lieu of the land originally allotted. It was admitted that the property in dispute was joint of Ghanni Bai and Lal Chand but denied that any application for partition was filed by Ghanni Bai. It was stated that Ghanni Bai was absolute owner of the property and she executed the Will dated 21.9.1978 which was registered on 22.9.1978. By virtue of the Will dated 21.09.1978, the earlier Will stand revoked. 4. Defendant No. 5 in his separate written statement admitted that in lieu of the land held by Ganesha Ram in Pakistan, he was allotted land in Kirawar and that Ghanni Bai was allotted half of the land in lieu of the total land held by Tola Ram in Pakistan. The land in dispute was given in consolidation operations in lieu of the land originally allotted. He admitted that he and Ghanni Bai were co-sharer in the land. However, it was stated that the land allotted in village Bhurtana was for her maintenance. It was further stated that in partition proceedings, Ghanni Bai and the defendant partitioned the land. Ghanni Bai could maintain herself out of the income of the land which came to her share. He admitted that he and Ghanni Bai were co-sharer in the land. However, it was stated that the land allotted in village Bhurtana was for her maintenance. It was further stated that in partition proceedings, Ghanni Bai and the defendant partitioned the land. Ghanni Bai could maintain herself out of the income of the land which came to her share. It was pointed out that in view of the compromise, Ghanni Bai could enjoy the possession of the property during her life time but she had no right to sell, mortgage, bequeath or transfer the land in any way to any person. It was denied that she became the absolute owner after the commencement of the Hindu Succession Act. 5. After replication was filed, the trial Court framed the following issues;- 1. Whether the plaintiff is the legal heir of Smt. Ghanni Bai widow of Tola Ram as alleged and, if so, to what effect? 2. Whether Smt. Ghanni Bai executed a valid Will in favour of defendant No. 1 to 4 and, if so, to what effect? 3. Whether the plaintiff has no locus standi to file this suit? 4. Whether the suit is not maintainable in the present form? 5. Whether the suit is bad for mis-joinder of parties? 6. Whether the plaintiff is estopped by her act and conduct to file this suit? 7. Whether the civil court has no jurisdiction to try the present suit? 8. Whether the suit is false and frivolous? 8-A. Whether there as any compromise between Lal Chand and Ghanni Bai in the year 1959, and, if so, to what effect? 9. Relief. 6. The learned trial Court held that the Will allegedly executed in favour of defendants No. 1 to 4 is not proved as defendants have failed to remove the suspicion about the execution of the Will Exhibit D1. The learned trial court also held that Will Exhibit P3 relied upon by the plaintiff is also not proved. It also held that Smt. Ghanni Bai has disentitled herself to alienate the suit land in any manner by way of compromise. She has not challenged such judgment and decree during her life time. The learned trial court also held that Will Exhibit P3 relied upon by the plaintiff is also not proved. It also held that Smt. Ghanni Bai has disentitled herself to alienate the suit land in any manner by way of compromise. She has not challenged such judgment and decree during her life time. However, in respect of additional Issue No. 8-A, the trial Court returned the finding that a valid compromise was entered culminating into pronouncement of judgment Exhibit P12 and passing of decree Exhibit P13 whereby Ghanni Bai has restricted her right of alienation over the disputed property and her right of ownership was not in any way diluted. A declaratory decree was passed by the trial Court that mutation No. 644 of 1978 in favour of defendants No. 1 to 4 on the basis of Will dated 21.9.1978 is illegal and void and it was held that the plaintiff and defendant Lal Chand are the legal heirs of deceased Ghanni Bai and are entitled to succeed to the disputed property in equal shares. 7. Two separate appeals were filed before the learned first appellate Court, one by defendant No. 5 Lal Chand and another by sons of Lal Chand in support of their Will dated 21.9.1978. The learned first appellate Court upheld the findings of the trial Court in respect of Will dated 21.9.1978, It was held that the said Will is surrounded by suspicious circumstances. The second will dated 16.12.1978, Exhibit P3, in favour of the plaintiff is not proved to be executed, However, the learned first appellate Court maintained the judgment and decree passed by the trial Court. 8. Defendant No. 5 Lal Chand alone has filed the present appeal against the judgment and decree passed by the Courts below. The judgment and decree passed by the learned first appellate Court is sought to be disputed on the following grounds;- (i) Smt. Ghanni Bai has got limited estate by virtue of judgment and decree dated 7.4.1960, Exhibits P12 and P13 respectively, after the commencement of the Hindu Succession Act, 1956 , Such limited estate has been conferred on Smt. Ghanni Bai without any pre-existing right or in lieu of the maintenance, therefore, she does not become full owner of the property in terms of Section 14(1) of the Hindu Succession Act, 1956 . (ii) That the suit for declaration simplicitor without claiming possession is not maintainable. (ii) That the suit for declaration simplicitor without claiming possession is not maintainable. 9. Learned counsel for the appellant contended that the learned first appellate Court has held that Smt. Ghanni Bai had got life interest in the suit property by virtue of the compromise and, therefore, the case does not fall under Sub-section (1) of Section 14 of the Hindu Succession Act. Learned counsel for the appellant has contended that such finding has not been assailed by the appellant although cross-objections have been filed. It has been pointed out that in cross-objections the plaintiff has sought entire share of Smt. Ghanni Bai on the basis of Will dated 16.12.1977 in her favour. However, no challenge whatsoever has been made in respect of the findings recorded that Ghanni Bai had limited estate in the property by virtue of the compromise, therefore, the plaintiff cannot be permitted to agitate the issue of absolute ownership. 10. The said contention of learned counsel for the appellant is not tenable for more than one reason. Firstly, the suit filed by the plaintiff has been decreed holding the plaintiff and Lal Chand defendant as legal heirs of Smt. Ghanni Bai and, thus, entitled to succeed to the estate of Smt. Ghanni Bai in equal shares. The ultimate conclusion is not disputed by the plaintiff in the second appeal. It was argued that no appeal was maintainable in respect of mere finding against the plaintiff on the question of limited ownership. It has been so held by the Supreme Court in the case reported as Ravinder Kumara Sharma v. State of Assam and Ors., (1997)7 Supreme Court Cases 435. In Para Nos. 23 and 24 of the judgment Supreme Court held as under;- "23. In our view, the opinion expressed by Mookerjee, J. of the Calcutta High Court on behalf of the Division Bench in Nishambhu Jena case and the view, expressed by U.N. Bachawat, J. in Tej Kumar case in the Madhaya Pradesh High Court reflect the correct position after the 1976 amendment. We hold that the respondent-defendant in an appeal can, without filing cross objections attack an adverse finding upon which a decree in part has been passed against the respondent, for the purpose of sustaining the decree to the extent the lower court had dismissed the suit against the defendant-respondent. We hold that the respondent-defendant in an appeal can, without filing cross objections attack an adverse finding upon which a decree in part has been passed against the respondent, for the purpose of sustaining the decree to the extent the lower court had dismissed the suit against the defendant-respondent. The filing of cross-objection, after the 1976 Amendment is purely optional and not mandatory. In other words, the law as stated in Venkata Rao case by the Madras Full Bench and Chandre Prabhuji case by the Court is merely clarified by the 1976 Amendment and there is no change in the law after the amendment. 24. The respondents before us are, therefore, entitled to contend that the finding of the High Court in regard to the absence of reasonable and probable cause or malice (upon which the decree for pecuniary damages in B and C Schedules was based) can be attacked by the respondents for the purpose of sustaining the decree of the High Court refusing to pass a decree for non-pecuniary damages as per A Schedule. The filing of cross-objections against the adverse finding was not obligatory. There is no res judicata..." 11. Secondly, the plaintiff has filed cross objections. The cross-objections stand on the same footing as memorandum of appeal in terms of Order 41 Rule 22 of the Code of Civil Procedure, The plaintiff has disputed such findings before this Court as one against the provisions of law. The plaintiff is permitted to take additional grounds in the cross-objections. Thirdly, in terms of Order 41 Rule 33 of the Code of Civil Procedure, the plaintiff has a right to support the decree passed by the Courts below for reasons other than that recorded by the Courts below. 12. The argument that the plaintiff has got limited estate by virtue of a compromise decree dated 7.4.1960 after the commencement of the Hindu Succession Act, 1956 and therefore, she will not become the absolute owner cannot be accepted in law. It is admitted by the appellant that the land was allotted to Smt. Ghanni Bai in lieu of the land left by Tola Ram in Pakistan. He has further pleaded in the written statement that the land was "on account of maintenance". Still further, it has been pleaded that the land was partitioned. The land falling to the share of Smt. Ghanni Bai was for her maintenance. He has further pleaded in the written statement that the land was "on account of maintenance". Still further, it has been pleaded that the land was partitioned. The land falling to the share of Smt. Ghanni Bai was for her maintenance. Judgment Exhibit P12 dated 7.4.1960 permits Smt. Ghanni Bai to seek partition of her share of the land. It is further stipulated that she will not be entitled to any amount of expenses from Lal Chand and that she would be entitled to the usufruct of the land. However, there was a restraint that she will not alienate the property either by way of sale, mortgage, gift or by way of Will. 13. It was submitted that she was not in possession of the land at the time of commencement of the Hindu Succession Act and, therefore, she will not become full owner of the property. Reliance was placed upon the decisions in the cases reported as Mst. Kirpo and Ors. v. Bakhtawar Singh, A.I.R. 1964 Punjab 474; Mst. Parmeshwari (deceased) v. Mst. Santoshi, A.I.R. 1977 Punjab 141; and Mst. Karmi v. Amru and Ors., A.I.R. 1971 S.C. 745. 14. However, I am unable to accept the argument raised by learned counsel for the appellant. The appellant has admitted in the written statement that the land was allotted to Smt. Ghanni Bai for her maintenance. The land was allotted after the death of her husband Tola Ram. Smt, Ghanni Bai has right of maintenance against the estate of her husband. It was said right which was recognised while allotting the land to Smt. Ghanni Bai and Lal Chand defendant No. 5 in equal shares. Smt. Ghanni Bai succeeded to the property of Tola Ram as per mutation Exhibit D5 sanctioned on 12.10.1954. The judgment Exhibit P12 on the basis of compromise recognises her right to seek partition over 1/2 share and that such 1/2 share was in lieu of her maintenance. It is apparent from the stipulation that Smt. Ghanni Bai was barred from claiming any amount of maintenance from Lal Chand defendant i.e. in respondent of other 1/2 share. Conversely, 1/2 share in respect of which Smt. Ghanni Bai was given right to seek partition was in lieu of maintenance. Therefore, by virtue of Section 14(1) of the Hindu Succession Act, she became full owner of the property. Conversely, 1/2 share in respect of which Smt. Ghanni Bai was given right to seek partition was in lieu of maintenance. Therefore, by virtue of Section 14(1) of the Hindu Succession Act, she became full owner of the property. Section 14(1) of the Hindu Succession Act, 1956 reads as under;- "14. Property of a female Hindu to be her absolute property (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not 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 the 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." 15. The provision of Section 14 of the Hindu Succession Act has been interpreted by the Supreme Court in the case reported as Vaddeboyina Tulasamma and Ors. v. Vaddeboyina Sesha Reddi (dead) by LRs., A.I.R. 1977 S.C. 1944, wherein it has been held that Sub-section (1) of Section 14 of the Hindu Succession Act 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 a proviso or exception to Sub-section (1). 16. Subsequently, in the case reported as Dr. Mahesh Chand Sharma v. Smt. Raj Kumari Sharma and Ors., A.I.R. 1996 S.C. 869, Supreme Court had held that the plea based on Section 14 can be raised for the first time before the Supreme Court once the facts requisite for attracting its application are established. It has been further held that for application of the provision of Section 14(1) of the Hindu Succession Act, it is not necessary for a female Hindu to be in physical possession where she has a right of possession. It has been further held that for application of the provision of Section 14(1) of the Hindu Succession Act, it is not necessary for a female Hindu to be in physical possession where she has a right of possession. Supreme Court held to the following;- "....Moreover, we are concerned with right to possession and not physical possession. It has been repeatedly held by this Court (See the several decisions referred to under the heading "possessed - meaning of in Mullas Hindu Law (Sixteenth Edition at page 810) while construing the expression "possessed" in Section 14(1) that the said expression means and refers to a right to possession and not necessarily actual or physical possession. So long as she has a right to possession, the mere fact that the female Hindu was not in physical possession matters very little. Therefore, it is immaterial whether Satyawati was physically occupying the said first floor or not. So long as she had the right to possession over the said first floor, Section 14(1) is attracted..." 17. Supreme Court in the decision rendered in the case of Nazar Singh and Ors. v. Jagjit Kaur and Ors., A.I.R. 1996 S.C. 855, was considering a compromise dated 3.12.1963 whereby land was given to one Harmel Kaur by her husband with the restriction that she will not sell or mortgage this land. Harmel Kaur had executed four sale deeds in November, 1987 and August, 1988 which were challenged by the husband of Harmel Kaur on the ground that she has no right to alienate the said property. Supreme Court after relying upon V. Tulasammas case (supra) held that the land became the absolute property of Harmel Kaur the moment she was placed in possession thereof. The Court held to the following effect;- "... According to Sub-section (1) where any property is given to a female Hindu in lieu of her maintenance before the commencement of the Hindu Succession Act, such property becomes the absolute property of such female Hindu on the commencement of the Act, provided the said property was "possessed" by her. The Court held to the following effect;- "... According to Sub-section (1) where any property is given to a female Hindu in lieu of her maintenance before the commencement of the Hindu Succession Act, such property becomes the absolute property of such female Hindu on the commencement of the Act, provided the said property was "possessed" by her. Where, however, the property is given to a female Hindu towards her maintenance after the commencement of the Act, she becomes the absolute owner thereof the moment she in placed in possession of the said property (unless of course, she is already in possession) notwithstanding the limitations and restrictions contained in the instrument, grant or award whereunder the property is given to her. This provision follows from the words in Sub-section (1) which insofar as is relevant read." Any property possessed by a female Hindu after the commencement of this Act shall be held by her as full owner and not as a limited owner." In other words, though the instrument, grant, award or deed creates a limited estate or a restricted estate as the case may be it stands transformed into an absolute estate provided such property is given to a female Hindu in lieu of maintenance and is placed in her possession. So far as the expression "possessed is concerned, it too has been the subject matter of interpretation by several decisions of this Court to which it is not necessary to refer for the purpose of this case." 18. In view thereof, I am unable to uphold the finding recorded by the Courts below that the clog on the right of Smt. Ghanni Bai to alienate the property will not make her full owner of the property. By virtue of operation of law i.e. provisions of Section 14(1) of the Hindu Succession Act, 1956 , she is the full owner of the property. 19. The second limb of the argument of learned counsel for the appellant that suit for declaration simplicitor is not maintainable is again without any merit. The possession of the plaintiff is admitted in the compromise decree itself. It is not the case set up by the defendants that she has been dispossessed in any manner thereafter. 20. 19. The second limb of the argument of learned counsel for the appellant that suit for declaration simplicitor is not maintainable is again without any merit. The possession of the plaintiff is admitted in the compromise decree itself. It is not the case set up by the defendants that she has been dispossessed in any manner thereafter. 20. Learned counsel for the plaintiff-respondent has pointed out that witnesses of the defendants, namely DW5 Om Parkash, DW6 Jhandu Ram, DW7 Bhagat Ram, have admitted that they are tenants under the plaintiff. It is admitted by the defendants in the compromise decree itself that the plaintiff has a right to usufruct of the land meaning thereby the possession of the plaintiff is admitted. If the plaintiff is in possession, only then she can have the usufruct of the land. By virtue of the compromise, pleadings and the evidence of the witnesses, the possession of the plaintiff cannot be disputed. Even otherwise, Supreme Court had held that it the right of possession which is relevant and not the actual physical possession. 21. In view thereof, the argument raised by the learned counsel for the appellant that the suit for declaration simplicitor is not maintainable is without any merit. 22. Consequently, the appeal and the cross-objections are dismissed. No order as to costs.