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2006 DIGILAW 3552 (PNJ)

Mangal Singh v. Kehar Singh

2006-09-13

HEMANT GUPTA

body2006
JUDGMENT Hemant Gupta, J. - The plaintiffs are in second appeal aggrieved against the judgment and decree passed by the Courts below whereby suit for possession of land measuring 81 kanals 6 marlas and 397 kanals 8 marlas situated at village Manghali and Khuda Kalan, Tehsil and District Ambala, was dismissed. This appeal raises the following substantial questions of law :- 1. Whether a widow would succeed as absolute owner of the estate of her deceased husband, prior to the commencement of the Hindu Succession Act, 1956, if there is no reversioner ? 2. Whether the plaintiffs can claim the estate of the deceased on the basis of caste and sub-caste, as nearest heir of the deceased ? 3. The said questions of law arises out of a suit for possession filed by the plaintiffs on the ground that they are Rajput by caste and Chauhan by Gotra and are resident of village Khuda Kalan, Tehsil and District Ambala. The plaintiff-appellants are agriculturists and according to the custom prevalent amongst the agriculturists, the plaintiffs are entitled to inherit the estate of one Ami Singh Rajput Chauhan who died without leaving any male or female issue. The mutation of the estate of Ami Singh Rajput was sanctioned in the name of his widow Smt. Kalahri. Smt. Kalahri died on 19.9.1955. The present suit for possession has been filed by the plaintiffs on 30.8.1967 on the ground that Smt. Kalahri has died issueless. Since her husband Ami Singh Rajput and Chauhan by Gotra has left no other collateral, therefore, the plaintiffs being pattidars and of the same Gotra are entitled to succeed to his estate. It is also alleged that the defendants were neither owners nor pattidars and, therefore, not entitled to take possession but the defendants have taken forcible possession of the same. 3. Thakur Singh, the original defendant, contested the suit and alleged that Ami Singh was the real owner of the property including certain Baras but his father Bhondu was adopted by Ami Singh has made gift of certain land to Bhondu and certain other land was gifted to him by Maro, brothers wife of Ami Singh. Kalahri also executed a Will registered on 9.6.1917 in favour of Bhondu recognizing him as the sole successor. Kalahri also executed a Will registered on 9.6.1917 in favour of Bhondu recognizing him as the sole successor. The custom alleged by the plaintiffs was denied and it was alleged that the suit is not maintainable and is beyond the period of limitation. 4. The learned trial Court found that the plaintiffs are not related to the deceased in any way and that from the documents Exhibits D-1 to D-3 i.e., gift deeds executed by Ami Singh and Maro in favour of Bhondu and Will executed by Kalahri in favour of Bhondu, a finding was returned that Bhondu was living with Ami Singh even before his adoption as son and, therefore, the custom could come into picture only when there had been no adoption and no appointment of any heir. In respect of Issue No. 2, it was held that prior to enforcement of Hindu Succession Act, 1956, the agriculturists were governed by custom in matters of succession and that the property of Rajputs will not escheat but it will revert to the other members of the same community to the extent of equal shares. Since Bhondu was found to be the adopted son, therefore, the plaintiffs have no right in the estate of deceased Ami Singh. The learned trial Court also found that since Bhondu is established to be adopted son of Ami Singh, therefore, adoption will relate back to the death of Ami Singh. Under issue No. 6, it was held that there is no evidence that gift deeds Exhibits D-1 to D-2 registered on 18.5.1890 fabricated documents but were found to be acted upon by the revenue authorities and were not challenged for a long time. Therefore, the gift deeds cannot be challenged after several decades. In respect of Will, it was found that Will Exhibit D-3 dated 9.6.1917 is a registered document and admissible in evidence being more than 30 years old. It was found that more than 60 years have lapsed since the Will was executed and it is a registered document and that the Will was acted upon as the property was mutated in the name of deceased Bhondu. Under Issue No. 9, it was held that the plaintiffs are not related to deceased Ami Singh or Kalahri and no right vest in them merely because they belong to the same Gotra. Under Issue No. 9, it was held that the plaintiffs are not related to deceased Ami Singh or Kalahri and no right vest in them merely because they belong to the same Gotra. The question of limitation was also decided in favour of the defendants as it was found that the gift deeds and the Will executed more than 60 years earlier cannot be challenged in the present suit. 5. The learned first Appellate Court reversed the finding of Bhondu being adopted son of Ami Singh but dismissed the suit holding that the plaintiffs do not inherit the estate of deceased Ami Singh. As per Rewaj-i-am, the property will go to the proprietors of the "Got" of the deceased located in the same Patti or Tholla only if it is an homogeneous village and the founder of the village was a common ancestor of the person inheriting in the Tholla or Patti. Where it is not proved, the widow invariably gets a better right in the property than the Tholladar or the proprietor would get. Still further, it was found that the widow of Ami Singh, namely, Kalahri inherited full proprietary rights on the death of her husband as well as on the death of Hanso and there was no bar upon her to make any Will in favour of anybody she liked. Thus, the Will, Exhibit D-3, made by Smt. Kalahri conferred all rights upon Bhondu which he could acquire under a Will. 6. Before this Court, learned counsel for the appellants has vehemently argued that Bhondu is not proved to be the adopted son of Ami Singh and that Kalahri widow of Ami Singh will succeed only as a limited owner and, therefore, after the death of Kalahri, it is the proprietors belonging to the same Gotra as that of the deceased who will succeed to the estate of Ami Singh in terms of Rewaj-i-am as incorporated in Exhibit P-5. It was further argued that after the death of Kalahri, life estate in her would come to an end and the property has to be inherited by the heirs of Ami Singh according to the law of succession. Since adoption in favour of Bhondu is not proved, the plaintiffs as proprietors of the Patti belonging to the same Gotra will inherit the estate as per Rewaj-i-am. 7. Since adoption in favour of Bhondu is not proved, the plaintiffs as proprietors of the Patti belonging to the same Gotra will inherit the estate as per Rewaj-i-am. 7. Though the learned counsel for the respondents sought to dispute the findings recorded by the learned first Appellate Court that Bhondu was not adopted by Ami Singh but I do not find that the defendants can succeed in upsetting the said findings. There is no evidence of any ceremony of adoption performed at any point of time. Still further, gift deeds, Exhibits D-1 and D-2, executed in favour of Bhondu by Ami Singh and wife of his brother in 1890 do not describe Bhondu as son of Ami Singh but son of brother of Ami Singh. Even in Will Exhibit D-3, Bhondu is not reflected as son of Kalahri and Ami Singh although it is reflected therein that Bhondu is residing with her since the time of her husband and that (he) was treating Bhondu as his son. Still further, the death certificate of Bhondu describes him as son of Dallu and not Ami Singh and, thus, I do not find any justification to take a different view in respect of the finding recorded by the learned first Appellate Court that Bhondu was not the adopted son of Ami Singh and Kalahri. 8. Learned counsel for the appellants has disputed the competency of Kalahri to execute Will Exhibit D-3 in favour of Bhondu though authenticity of the said Will was not disputed. It was argued that Kalahri has a life estate and, therefore, such life estate could not be bequeathed by way of Will in favour of Bhondu. However, I am unable to accept such argument raised by learned counsel for the appellants. A Division Bench of Lahore High Court in the judgment reported as Alla Ditta and others v. Gauhra and others, 3 Punjab Records 1914, has held that though the widows estate is limited one but it is limited for the benefit of reversioners and where there are none, she is to all intents and purposes an absolute owner. It was held to the following effect :- "Mr. Pestonji urges that the widows estate is always a limited one. Quite so, but it is only limited for the benefit of reversioners. It was held to the following effect :- "Mr. Pestonji urges that the widows estate is always a limited one. Quite so, but it is only limited for the benefit of reversioners. Where there are none she is to all intents and purposes an absolute owner..." In the absence of any other heir, the reversionary right in the estate of Ami Singh could not be claimed by anyone. Therefore, Kalahari, wife of Ami Singh, would succeed as owner of the estate of her husband. The plaintiffs cannot claim any interest in the estate of deceased Ami Singh as he cannot be said to have died issueless and without any heir as Bhondu is the legal heir under a valid Will. Thus, as an owner, Kalahri was competent to execute the Will in favour of Bhondu. Thus, in respect of first substantial question of law, it is held that Kalahri would succeed as complete owner of the estate of her husband. 9. In respect of second substantial question of law, it may be seen that in Riwaj-i-am Exhibit P-5, the question which is sought to be answered is that if a person who dies without any issue and any Will (emphasis supplied), then who will succeed to his estate i.e., government or Patti or Taraf or Shamlat deh etc., or proprietors. The answer recorded is that the first right is of the proprietors of the Tholla, Patti and Shamlat Deh in which the deceased has died. The proprietors of the same Gotar and the community of which the deceased reside in Tholla, Patti or Shamlat Deh will succeed in the first instance. If there is nobody from the Gotar, then it goes to the community. The State has no right in the presence of people of the Gotra and the community. In the judgment reported as Badaman and others v. Net Ram alias Lali and others, 57 Punjab 1914, it was found that the general rule is that in the event of a proprietor dying without heirs, his estate ordinarily escheats to Government. When the plaintiffs claim a declaratory decree of right to succeed to the property of the deceased, they are bound to show that this general rule does not apply to their case. When the plaintiffs claim a declaratory decree of right to succeed to the property of the deceased, they are bound to show that this general rule does not apply to their case. In the present case, Riwaj-i-am mentioned above is of no assistance to the appellants as the deceased has died leaving behind his widow who is absolute owner of the property in the absence of any reversioners. Thus, in respect of second substantial question of law, it is held that the plaintiffs cannot succeed to the estate of deceased Bhondu or Kalahri as she had died after the execution of a valid Will. Thus, in view of my findings on the substantial questions of law, I do not find any merit in the present appeal which is dismissed. Appeal dismissed.