AJIT KAUR @ SURJIT KAUR versus DARSHAN SINGH (DEAD) THROUGH LRS. & ORS. on 4 April 2019

1. This is the defendant’s appeal by special leave against thejudgment of the High Court of Punjab and Haryana at Chandigarh dated28[th] July, 2004 and arises in the following circumstances.

2. Original plaintiffs, Darshan Singh son of Bhana, and Amriti andUdhi alias Iqbal Kaur, daughters of Bhana filed a suit for possession ofthe subject land in dispute. It was claimed by the plaintiffs that Bhana,son of Moti was the original owner of the subject properties in dispute.

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AThe plaintiffs along with one Gurdev Kaur were the children of aforesaidBhana from his first wife Bhago and after the death of his wife(Bhago),Bhana was remarried to Smt. Banti but because of strained relations ofBhana and Smt. Banti, they started living separately. There was even alitigation between them. Bhana and Smt. Banti had a daughter, namely,Ajit Kaur(appellant) from the aforesaid wedlock. To settle the disputeBbetween them, Bhana parted the suit land to Smt. Banti by way of giftfor her maintenance way back in the year 1950. In furtherance thereof,mutation was also entered in favour of Smt. Banti bearing no. 3813sanctioned on 25[th] February, 1950. The aforesaid gift came to bechallenged by the original plaintiff Darshan Singh in a Civil Suit No. 103/C1953 for declaration under the customary law. It was claimed by himthat the aforesaid gift by late Bhana in favour of Smt. Banti qua theancestral property would not affect the reversionary rights of DarshanSingh(original plaintiff). The aforesaid civil suit filed at the instance ofDarshan Singh was decreed by the learned trial Court vide judgmentdated 30[th] June, 1954 and it was held that the aforesaid gift by lateDBhana in favour of Smt. Banti would not affect the reversionary rightsof Darshan Singh and would operate only during the life time of Bhana.The Civil Appeal No. 101/1954 preferred by Banti against the aforesaidjudgment and decree was dismissed by learned District Judge videjudgment dated 29[th] November, 1954 and the Regular Second AppealENo. 193/1955 filed at her instance(Smt. Banti) came to be dismissed bythe High Court on 3[rd] November, 1959. It was claimed that Smt. Bantiwas to continue to have the rights in the property only during the lifetime of Bhana and was not an absolute owner. Since Bhana died on 27[th]March, 1973 and prior to his death, he had executed a registered willdated 5[th] January, 1973 whereby he bequeathed his estate in favour ofFplaintiffs Darshan Singh and others by excluding Smt. Banti and Smt.Ajit Kaur, original (defendant no. 1) and (defendant no. 25) appellantherein and other daughter Gurdev Kaur. In reference to the aforesaidwill dated 5[th] January, 1973, Civil Suit No. 15/1975 was filed by theplaintiff for possession. The appellant contested the suit and it wasGclaimed by her that Banti was the absolute owner of the suit property.She even denied the earlier litigation between the parties wherebyreversionary rights of Darshan Singh came to be upheld. The will asclaimed by the plaintiffs dated 5[th] January, 1973 was also contested.

3. On the other hand, the appellant in separate litigation betweenHthe parties reached upto the Regular Second Appeal no. 933/1984 and

the validity of the will dated 5[th] January, 1973 came to be upheld by theHigh Court vide judgment dated 28[th] July, 2004 and the Special LeavePetition(Civil) no. 24724/2004 preferred at the instance of the appellantcame to be dismissed as not pressed. According to the will dated5[th] January, 1973, the original plaintiffs became entitled to claim theproperty of Bhana(deceased) including the land in dispute to the exclusionof the present appellant. It was stated in the will dated 5[th] January, 1973that Smt. Banti was residing separately for almost 20 years and questionedher character having illegitimate relations with Maal Singh, son of NihalSingh, r/o Bada Pind and despite that, the testator has taken care of hermaintenance. The will dated 5[th] January, 1973 came to be executed insupersession of the earlier will dated 11[th] April, 1956 and for the aforesaidreason, it was stated by the testator that the entire property after hisdeath be devolved to his daughter Smt. Amriti, Udi alias Iqbal Kaur andson Darshan Singh in three equal shares.

4. The trial Court in the instant proceedings held that the suit landhad been allotted in lieu of the original land during the consolidationproceedings. Both the wills set up by the plaintiffs dated 5[th] January,1973 and the defendants dated 21[st] February, 1973 were held to beexecuted by Bhana. Learned trial Court further recorded a finding thatBanti had become absolute owner of the suit property after thecommencement of the Hindu Succession Act, 1956 (hereinafter beingreferred to as “Act 1956) and, therefore, the plaintiffs could not takeany benefit of the earlier decree and accordingly dismissed the suit filedby the plaintiffs.

5. On reappraisal of the evidence on record, the appellate Courtreversed the findings of the trial Court with regard to Banti having becomeabsolute owner of the suit property on the basis of an oral gift executedby Bhana in the year 1950 and the gift came to be set aside and held thatSmt. Banti could not be held to be the absolute owner of the suit propertyeven after the commencement of the Act, 1956 inasmuch as her title tothe suit property was to operate only during the life time of Bhana whodied on 27[th] March, 1973. The judgment of the Court of appeal came tobe challenged at the instance of the appellant(defendant) and secondappeal before the High Court also came to be dismissed under theimpugned judgment dated 28[th] July, 2004 which is the subject matter ofchallenge in the instant appeal.

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A6. Mr. J.M. Khanna, learned counsel for the appellant submitsthat once this fact is admitted by the parties that Smt. Banti was thewidow of Bhana whose property is in dispute and as such formedcoparcenary and was entitled to 1/3[rd] share after the enforcement ofthe Act, 1956 and the learned appellate Court has erred in relying upona will dated 5[th] January, 1973 without taking note of a subsequent willBexecuted by the testator dated 21[st] February, 1973 and the finding whichhas been recorded by the first appellate Court in reference to a later willdated 21[st] February, 1973 is perverse and no adverse inference could bedrawn and it needs to be reviewed by this Court.

7. Learned counsel further submits that the progeny of BhanaCwas consisting of one son and three daughters from the first wife sincedeceased and another daughter alongwith widow from the secondmarriage. If plainly the succession stood opened after the enforcementof Act, 1956 then even one son and three daughters from first wifewould get 2/3[rd] of the property and widow and one daughter i.e. fromDsecond marriage would get 1/3[rd] property. So far as the finding inreference to the will dated 5[th] January, 1973 is concerned, it was neverproved or produced before the trial Court and could not be agitated at abelated stage.

8. Learned counsel submits that the first appellate Court as wellEas the High Court in second appeal has misconstrued the law applicableto the coparcenary property and right of the female to succeed would bedefeated by execution of a Sham sale deed and the same had to bequestioned during the life time of the deceased Bhana and the limitationis only three years. Since the right to succeed to deceased Bhana aroseonly after his demise in the year 1973 and the suit for possession couldFbe filed within 12 years of the same especially when the appellant wasin possession of a part of the land left by the deceased.

9. Learned counsel submits that the validity of the will dated5[th] January, 1973 executed by Bhana could not be effecting the right ofthe successor after the enforcement of the Hindu Succession Act, asGBhana had gifted the property to the appellant and the will could notoperate qua that property even if it is assumed to be valid. Theproperty gifted or otherwise given to the separated wife i.e. Banti beforethe enforcement of the Act, 1956 for maintenance of the separated wifenow widow would hold the absolute right over the property after theHAct, 1956 has come into force.

10. Learned counsel further submits that no will could be executedby Bhana regarding the aforesaid ancestral property to his progeny sincethe subject property was in possession of Banti, in view of maintenanceand irrespective of the nature of document/statement made by Bhana,the property would become absolute property of Banti on enforcementof Act, 1956 on 17[th] June, 1956. The reversionary rights of therespondents’/plaintiffs’ declaration suit do not become effective whenthe succession opened after the enforcement of the Hindu SuccessionAct and the decree is only to be effective if the reversionary rightsexisted when the succession opened on the death of Bhana the Kartaand co-parcener. The property does not revert to the co-parcenary orHindu joint family or to Bhana as Karta and after the enforcement ofAct, 1956, the succession is to be governed by the provisions of HinduSuccession Act and if the reversionary who have got the decree and heis not the successor in accordance with the Hindu Succession Act orHindu Law, he cannot get the benefit under the reversionary declaratorydecree. Whatever the customs earlier existing, if any, stands abrogatedin view of the mandate of Section 4 and Section 30 of the Act, 1956which is applicable to all and no customary law overrides the HinduSuccession Law.

11. Per contra, Ms. S. Janani, learned counsel for the respondents,while supporting the findings recorded by the first appellate Court andconfirmed by the High Court in appeal submits that the subject land indispute was mutated in the name of Smt. Banti on the basis of the oralgift and the suit which was filed by the respondents for mutation wouldnot bind their reversionary rights on the suit land and that has been heldby all the courts that the alleged oral gift has not been proved and beingthe concurrent finding of fact, needs no further indulgence. Learnedcounsel further submits that if the respondents cannot rely upon the saiddecree to seek possession of the land yet the findings in the suitproceedings would bind the parties. It was never the case of the appellantthat the suit land was given to her mother Banti in lieu of the maintenance.On the contrary, it was pleaded that such land was given to her in lieu ofservice rendered and the subject land which was given to her motherBanti in lieu of maintenance has been specifically mentioned in the willdated 5[th] January, 1973 of late Bhana. In the aforesaid will, lateBhana(testator) also mentioned that Smt. Banti was living in adulteryand separate from him for more than 20 years and merely being in AB

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Apossession of the suit land will not make her an absolute owner of theproperty on coming in effect of the Act, 1956 and bare reading of Section14(1) makes it clear that in order to avail the benefit of the mandate oflaw, the women must come in possession of the land under one of thedevise mentioned therein.

B12. Learned counsel further submits that in the earlier proceedings,the appellant had conceded that the will dated 5[th] January, 1973 wasvalidly executed and in RSA No. 933/1984, the validity of the will dated5[th] January, 1973 has been upheld and the present appellant preferredappeal by special leave against the said judgment which came to bedismissed as withdrawn by this Court vide order dated 7[th] April, 2006Cand the finding was recorded that will dated 21[st] February, 1973 has notbeen legally executed and proved. In the given circumstances, theappellant has no legitimate right to claim possession by way of successionunder the Act, 1956 and no error was committed in restoration ofreversionary rights of the respondents under the impugned judgment.

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13. The concurrent finding of fact has been recorded by the HighCourt in the regular second appeal in separate proceedings initiated inreference to will dated 5[th] January, 1973 in RSA No. 933/1984 decidedon 28th July, 2004 held to be validly executed and based on the recital ofthe will, it was held that the plaintiffs became entitled to succeed to theEentire property of Bhana (deceased) including the land in dispute to theexclusion of defendant(appellant herein). It may be relevant to note thatthe finding of fact recorded under the impugned judgment in referenceto a later will dated 21[st] February, 1973 on which much emphasis waslaid by the present appellant, it was observed that the propounder of thewill was legally required not only to prove the due execution of the willFbut also to dispel all suspicious circumstances which may have existedin its due execution of the aforesaid will and it was observed that thelater will dated 21[st] February, 1973 claimed by the present appellantcannot be taken to be duly proved and being a finding of fact duly supportedby the material on record, we find no perversity or manifest error in theGfinding to be reviewed by this Court in the instant appeal.

14. It is a settled position of law that the mutation of a property inthe revenue records are fiscal proceedings and does not create orextinguish title nor has it any presumptive value on title. It only enablesthe person in whose favour mutation has been ordered, to pay the landHrevenue. At the same time, the effect of a declaratory decree to restore the property alienated to the estate of the alienor is that until and unlessthe alienees are able to convince the court that they have no subsistinginterest in the property, the heirs of the alienor would be entitled to thebenefits of the property as per the law of succession. The effect of theoperation of the aforesaid declaratory decree would be to restore theland in dispute to the aforesaid estate of Bhana(deceased) and thesuccession would be deemed to have opened on 27[th] March, 1973 whenBhana died. On his death, the estate left behind him including the land indispute would devolve upon his heirs as per their entitlement and afterthe registered will dated 5[th] January, 1973 has been upheld by the HighCourt in RSA No. 933/1984 decided on 28[th] July, 2004 and attainedfinality, its consequence was to follow accordingly.

15. The submission of learned counsel for the appellant that theappellant being in possession of the subject property in question at thetime when Act, 1956 came into force and by virtue of Section 14(1) ofthe Act became an absolute owner of the subject property and the decreebeing a nullity is inexecutable and it is a jurisdictional error against thepolicy of legislature, is without substance for the reason that Section14(1) of the Act, 1956 clearly envisage that the possession of the widow,however, must be under some vestige of a claim, right or title or underany of the devise which has been purported under the law. Indisputedly,in the instant case, the appellant was not holding any valid possessionover the subject property and as already observed, opening of fiscalproceedings would not confer a right of acquisition by either of the devisewhich has been referred to under the explanation to Section 14(1) of theAct, 1956. Section 14 of the Act, 1956 is as under:- “14. Property of a female Hindu to be her absolute property —(1) Any property possessed by a female Hindu, whether acquiredbefore or after the commencement of this Act, shall be held byher as full owner thereof and not as a limited owner.

Explanation.— In this sub-section, ‘property’ includes bothmovable and immovable property acquired by a female Hindu byinheritance or devise, or at a partition, or in lieu of maintenance orarrears of maintenance, or by gift from any person, whether arelative or not, before, at or after her marriage, or by her own skillor exertion, or by purchase or by prescription, or in any othermanner whatsoever, and also any such property held by her asstridhana immediately before the commencement of this Act.

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(2) Nothing contained in sub-section(1) shall apply to any propertyacquired by way of gift or under a will or any other instrument orunder a decree or order of a civil court or under an award wherethe terms of the gift, will or other instrument or the decree, orderor award prescribe a restricted estate in such property.”

16. The effect of Section 14, after the Act, 1956 came to beexamined by a three Judge Bench of this Court in Eramma Vs.Veerupana and OthersAIR 1996 SC 1879 as under:- “6. It was next contended by the appellant that she was admittedlyin possession of half the properties of her husband Eran Gowdaafter he died in 1341-F and by virtue of Section 14 of the HinduSuccession Act she became the full owner of the properties andRespondents 1 and 2 cannot, therefore, proceed with the executioncase. We are unable to accept this argument as correct. At thetime of Eran Gowda’s death the Hindu Women’s Right to PropertyAct, 1937 (Act 18 of 1937) had not come into force. It is admittedby Mr. Sinha that the Act was extended to Hyderabad State witheffect from February 7, 1953. It is manifest that at the time ofpromulgation of Hindu Succession Act, 1956 the appellant had nomanner of title to properties of Eran Gowda. Section 14(1) of theHindu Succession Act states:

“14. (1) Any property possessed by a female Hindu, whetheracquired before or after the commencement of this Act, shall beheld by her as full owner thereof and not as a limited owner.

Explanation.— In this sub-section, ‘property’ includes bothmovable and immovable property acquired by a female Hindu byinheritance or devise, or at a partition, or in lieu of maintenance orarrears of maintenance, or by gift from any person, whether arelative or not, before, at or after her marriage, or by her own skillor exertion, or by purchase or by prescription, or in any othermanner whatsoever, and also any such property held by her asstridhana immediately before the commencement of this Act.”

7. It is true that the appellant was in possession of Eran Gowda’sproperties but that fact alone is not sufficient to attract the operationof Section 14. The property possessed by a female Hindu, ascontemplated in the section, is clearly property to which she hasacquired some kind of title whether before or after the

commencement of the Act. It may be noticed that the Explanationto Section 14(1) sets out the various modes of acquisition of theproperty by a female Hindu and indicates that the section appliesonly to property to which the female Hindu has acquired somekind of title, however restricted the nature of her interest may be.The words “as full owner thereof and not as a limited owner” asgiven in the last portion of sub-section (1) of Section 14 clearlysuggest that the legislature intended that the limited ownership ofa Hindu female should be changed into full ownership. In otherwords, Section 14(1) of the Act contemplates that a Hindu femalewho, in the absence of this provision, would have been limitedowner of the property, will now become full owner of the sameby virtue of this section. The object of the section is to extinguishthe estate called limited estate or “widow’s estate” in Hindu lawand to make a Hindu woman, who under the old law would havebeen only a limited owner, a full owner of the property with allpowers of disposition and to make the estate heritable by her ownheirs and not revertible to the heirs of the last male holder. TheExplanation to sub-section (1) of Section 14 defines the word“property” as including “both movable and immovable propertyacquired by a female Hindu by inheritance or devise …”.Sub-section (2) of Section 14 also refers to acquisition of property.It is true that the Explanation has not given any exhaustiveconnotation of the word “property” but the word “acquired” usedin the Explanation and also in sub-section (2) of Section 14 clearlyindicates that the object of the section is to make a Hindu femalea full owner of the property which she has already acquired orwhich she acquires after the enforcement of the Act. It does notin any way confer a title on the female Hindu where she did not infact possess any vestige of title. It follows, therefore, that thesection cannot be interpreted so as to validate the illegal possessionof female Hindu and it does not confer any title on a meretrespasser. In other words, the provision of Section 14(1) of theAct cannot be attracted in the case of a Hindu female who is inpossession of the property of the last male holder on the date ofthe commencement of the Act when she is only a trespasserwithout any right to property.

(emphasis supplied)

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17. It was further considered by a three-Judge Bench of this CourtinV. Tulasamma and OthersVs. Sesha Reddy(Dead) by LRs1977(3)SCC 99 and interpretation of Section 14(1) and (2) of the Act, 1956 hasbeen summarized as under:-

62. We would now like to summarise the legal conclusions whichwe have reached after an exhaustive considerations of theauthorities mentioned above on the question of law involved inthis appeal as to the interpretation of Sections 14(1) and (2) of theAct of 1956. These conclusions may be stated thus:

“(1) The Hindu female’s right to maintenance is not an emptyformality or an illusory claim being conceded as a matter of graceand generosity, but is a tangible right against property which flowsfrom the spiritual relationship between the husband and the wifeand is recognised and enjoined by pure Shastric Hindu law andhas been strongly stressed even by the earlier Hindu juristsstarting from Yajnavalkya to Manu. Such a right may not be aright to property but it is a right against property and the husbandhas a personal obligation to maintain his wife and if he or thefamily has property, the female has the legal right to bemaintained therefrom. If a charge is created for the maintenanceof a female, the said right becomes a legally enforceable one. Atany rate, even without a charge the claim for maintenance isdoubtless a pre-existing right so that any transfer declaring orrecognising such a right does not confer any new title but merelyendorses or confirms the pre-existing rights.

(2) Section 14(1) and the Explanation thereto have been couchedin the widest possible terms and must be liberally construed infavour of the females so as to advance the object of the 1956 Actand promote the socio-economic ends sought to be achieved bythis long needed legislation.

(3) Sub-section (2) of Section 14 is in the nature of a proviso andhas a field of its own without interfering with the operation ofSection 14(1) materially. The proviso should not be construed in amanner so as to destroy the effect of the main provision or theprotection granted by Section 14(1) or in a way so as to becometotally inconsistent with the main provision.

(4) Sub-section (2) of Section 14 applies to instruments, decrees,awards, gifts, etc. which create independent and new titles infavour of the females for the first time and has no applicationwhere the instrument concerned merely seeks to confirm,endorse, declare or recognise pre-existing rights. In such cases arestricted estate in favour of a female is legally permissible andSection 14(1) will not operate in this sphere. Where, however, aninstrument merely declares or recognises a pre-existing right, suchas a claim to maintenance or partition or share to which thefemale is entitled, the sub-section has absolutely no applicationand the female’s limited interest would automatically be enlargedinto an absolute one by force of Section 14(1) and the restrictionsplaced, if any, under the document would have to be ignored.Thus where a property is allotted or transferred to a female in lieuof maintenance or a share at partition, the instrument is taken outof the ambit of sub-section (2) and would be governed by Section14(1) despite any restrictions placed on the powers of the trans-feree.

(5) The use of express terms like ‘property acquired by a femaleHindu at a partition’, ‘or in lieu of maintenance’, ‘or arrears ofmaintenance’, etc. in the Explanation to Section 14(1) clearly makessub-section (2) inapplicable to these categories which have beenexpressly excepted from the operation of sub-section (2).

(6) The words ‘possessed by’ used by the Legislature in Section14(1) are of the widest possible amplitude and include the state ofowning a property even though the owner is not in actual or physicalpossession of the same. Thus, where a widow gets a share in theproperty under a preliminary decree before or at the time whenthe 1956 Act had been passed but had not been given actualpossession under a final decree, the property would be deemed tobe possessed by her and by force of Section 14(1) she would getabsolute interest in the property. It is equally well settled that thepossession of the widow, however, must be under some vestigeof a claim, right or title, because the section does not contemplatethe possession of any rank trespasser without any right or title.

(7) That the words ‘restricted estate’ used in Section 14(2) arewider than limited interest as indicated in Section 14(1) and they AB

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Ainclude not only limited interest, but also any other kind oflimitation that may be placed on the transferee.”

(emphasis supplied)

18. In Eramma Vs. Veerupana and Others(supra), the widowwas in possession of the half of the property of her late husband andBclaimed her absolute ownership by virtue of Section 14 of the Act, 1956which was negated by this Court for the reason that the widow was notholding possession over the subject property in question under any of thedevise indicated in the explanation to Section 14(1) of the Act, 1956.

19. WhereinV. Tulasamma and OthersVs. Sesha Reddy(Dead)Cby LRs, it was an admitted case before the Court that the suit propertycame in possession of the widow under a compromise in execution ofdecree of the Court, restricting her right of alienation in recognition ofright to maintenance, having pre-existing right over the subject propertyin question on the date the Act, 1956 came into force(i.e. 17[th] June,D1956). In that reference, the claim was considered by this Court andheld that the pre-existing right of the widow on the date of thecommencement of the Act, 1956 will get her the absolute rights over thesubject property.

20. In the instant case, the appellant although was holdingEpossession but not under any of the devise referred to under explanationto Section 14(1) of the Act, 1956 and mere possession would not conferpre-existing right of possession over the subject property to claim fullownership rights after the Act, 1956 came into force by operation of lawand this what was considered and negated by the High Court in theimpugned judgment.F21. Consequently, the appeal fails and is accordingly dismissed.No costs.

22. Pending application(s), if any, stand disposed of.

GNidhi Jain

Appeal dismissed.

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