R.S.A.No. 1793 of 2005 (O&M) R.S.A.No. 4601 of 2004 (O&M) R.S.A.No. 1182 of 2005 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 30.5.2011 R.S.A.No. 1793 of 2005 (O&M) Suraj Bhan ......Appellant Versus Tirath Ram and others .......Respondents R.S.A.No. 4601 of 2004 (O&M) Pawan Kumar and others ......Appellants Versus Tirath Ram and others .......Respondents R.S.A.No. 1182 of 2005 (O&M) Satinder Kumar @ Satish Kumar ......Appellant Versus Pawan Kumar and others .......Respondents R.S.A.No. 1793 of 2005 (O&M) R.S.A.No. 4601 of 2004 (O&M) R.S.A.No. 1182 of 2005 (O&M) 2 CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.C.B.Goel, Advocate, for the appellant in RSA No.1793 of 2005 and respondent No.5 in RSA No.1182 of 2005 and respondent No.4 in RSA No.4601 of 2004. Mr.Avnish Mittal, Advocate for appellants in RSA No.4601 of 2004 and for respondents No.1 to 7, 9 to 12 in RSA No.1182 of 2005. Mr.Sanjay Verma, Advocate, for the appellant in RSA No.1182 of 2010 and for respondent No.3 in RSA No.1793 of 2005 and RSA No.4601 of 2004. Mr.B.S.Bedi, Advocate, for respondent Nos. 1 and 2 in RSA No.1793 of 2005 and RSA No.4601 of 2004 and respondents No.24 and 25 in RSA No.1182 of 2005. **** SABINA, J. Vide this judgment, RSA Nos.1793 of 2005, 4601 of 2004 and RSA No.1182 of 2005 will be disposed of as these have arisen out of the same suit. The plaintiffs had filed the suit seeking declaration and possession. The case of the plaintiffs, in brief, was that Nathu Ram was the owner of the suit property. After the death of Nathu Ram, mutation was sanctioned qua the suit property in favour of his widow Kartari Devi, who died on 31.8.1989. Kartari Devi executed a gift deed in favour of Chawli Devi on 18.11.1941. The said gift deed was challenged by the plaintiffs by filing a civil suit and the same was R.S.A.No. 1793 of 2005 (O&M) R.S.A.No. 4601 of 2004 (O&M) R.S.A.No. 1182 of 2005 (O&M) 3 decreed on 25.5.1942 in favour of the plaintiffs and it was held that the gift deed shall not effect the reversionary rights of the plaintiffs on the death of Kartari Devi. Pedigree table, as shown in para 6 of the plaint, is as under:- Kanwar Ji | | Salig Ram Kashmiri | | Naraina _______________________ | | | | ___________________________ Kanihya Shiv Sharan Udhmi | | | | Kewal Nathu (widow Kartari) | ___________Nathu_______ | | | | | Chawli | Suraj Bhan Sita Ram Paras Ram | (plff.No.2) | _________________|___ | | | Radhi (widow)-- | | | Chani-Gobind Bhagwana | | | Ram Sarup (plff.No.1) Kali Ram (plff. No.3) Kartari Devi had, thus, no right, title or interest left in the suit property. Chawli Devi had died issuless. Tirath Ram-defendant No.1 was not related to Chawli Devi and had no interest in the suit property. Plaintiffs had, thus, come to know that defendant No.2 had procured a false decree by filing civil suit No.131 of 1989 instituted on 3.2.1989 and decided on 9.3.1989 qua the land belonging to Kartari Devi. Since Kartari Devi had no right to alienate or suffer a decree qua any part of the suit land, the said decree was not binding R.S.A.No. 1793 of 2005 (O&M) R.S.A.No. 4601 of 2004 (O&M) R.S.A.No. 1182 of 2005 (O&M) 4 on the rights of the plaintiffs. Defendants No. 1 and 2 were not related to Kartari Devi and had no interest in the suit land. Defendants No.1 and 2, in their written statement, averred that the property in dispute was exclusively owned and possessed by Kartari Devi. During her life time, Kartari Devi had bequeathed her entire property in favour of defendant No.1. In terms of decree dated 9.3.1989, defendant No.2 had become owner of half share out of the agricultural land measuring 57 bighas 2 biswas belonging to Kartari Devi. Plaintiffs had no concern with the suit property. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs are owners in possession of the suit property in terms of the judgment/decree passed in civil suit No.4 of 1942 ? OPP 2. Whether the judgment and decree dated 19.3.1989 has no effect upon the rights and title of the plaintiffs qua the suit property ? OPP 3. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for? OPP 4. Whether the suit for declaration without seeking the relief of permanent injunction is not maintainable ? OPD 5. Relief.” On 8.6.1999, the following additional issues were framed:- “1. Whether the plaintiffs are entitled to seek the possession of suit property ? OPP R.S.A.No. 1793 of 2005 (O&M) R.S.A.No. 4601 of 2004 (O&M) R.S.A.No. 1182 of 2005 (O&M) 5 2. Whether the suit of the plaintiffs is within limitation from the date of filing of amendment application ? OPP” The trial Court dismissed the suit of the plaintiffs vide judgment and decree dated 19.8.1999. Aggrieved by the said judgment and decree, legal representatives of plaintiffs No.1 and 3 preferred an appeal and plaintiff No.2 preferred another appeal. Both the said appeals were dismissed vide judgment and decree dated 17.9.2004 passed by the Additional District Judge (Adhoc) Fast Track court. Defendant No.3 preferred a separate appeal against the judgment and decree passed by the trial Court and the said appeal was also dismissed by the Additional District Judge, Fast Track Court vide judgment and decree dated 17.9.2004. Hence, RSA No.4601 of 2004 has been filed by the legal representatives of plaintiffs no.1 and 3. RSA No.1182 of 2005 has been filed by defendant No.3 and RSA No.1793 of 2005 has been filed by plaintiff No.2. Learned counsel Mr. Avnish Mittal has submitted that the plaintiffs had become owner of the suit property as the same had reverted back to them after the death of Kartari Devi. In support of his arguments, learned counsel has placed reliance on Gaddam Rama Krishana Reddy and others vs. Gaddam Rami Reddy and another 2010 (3) SLJ (SC) 1714, wherein in para 18, it was held as under:- “ The consistent view which has been taken by this Court since the decision in V. Tulasamma's case (supra) is R.S.A.No. 1793 of 2005 (O&M) R.S.A.No. 4601 of 2004 (O&M) R.S.A.No. 1182 of 2005 (O&M) 6 that the provisions of Section 14(1) of the Hindu Succession Act, 1956, would be attracted if any of the conditions contained in the Explanation stood fulfilled. If, however, a right is created in a Hindu female for the first time in respect of any property under any instrument or under a decree or order of a Civil Court or under an award, where a restricted estate in such property is prescribed, the provisions of sub- section (1) of Section 14 would have no application by virtue of sub-section (2) thereof.” Learned counsel has further placed reliance on Daya Singh (dead) through L. Rs and another vs. Dhan Kaur AIR 1974 Supreme Court 665, wherein, in para 9, it was held as under:- “Mr. Naunit Lal appearing for the appellant argued that the result, of the decision of this Court in(1966)2 SCR 625= (AIR 1966SC 1879) Eramma v. Verrupanna (supra) is that on the death of Wadhawa Singh's widow it is the old Hindu Law that applied and therefore under the custom in force in Punjab under which a daughter was not entitled to succeed to the ancestral property of the father in preference to the reversioners should apply and the appellants are entitled to succeed. There is no doubt about the position under the Customary Law of Punjab before coming into force of the Hindu Succession Act. In Rattigan's Digest of the R.S.A.No. 1793 of 2005 (O&M) R.S.A.No. 4601 of 2004 (O&M) R.S.A.No. 1182 of 2005 (O&M) 7 Customary Law' published by the University Book Agency (14th Ed.), paragraph 23 at page 132 it is stated: " 23.(1) A daughter only succeeds to the ancestral landed property of her father, if an agriculturist, in default :- (1) Of the heirs mentioned in the preceding paragraph and (2) Of near male collaterals of her father, provided that a married daughter sometimes excludes near male collaterals, especially amongst Muhammadan tribes : (a) where she has married a near collateral descendant from the same common ancestor as her father; or (b) where she has, with her husband continuously lived with her father since her marriage; looking after his domestic wants, and assisting him in the management of his estate; or (c) where being married to a collateral of the father's family, she has been appointed by her father as his heir. (2) But in regard to the acquired property of her father,the daughter is preferred to collaterals." R.S.A.No. 1793 of 2005 (O&M) R.S.A.No. 4601 of 2004 (O&M) R.S.A.No. 1182 of 2005 (O&M) 8 It is on the basis of this Customary Law that the reversioners succeeded in the suit filed by them questioning the gift made by the respondent's mother to her. There is no doubt that Rattigan's work is an authoritative one on the subject of Customary Law in Punjab, This Court in Mahant Salig Ram v. Musammat Maya Devi (1955) SCR 1191 at page1196) = (AIR 1955 SC 266) said :- "Customary rights of succession of daughters as against the collaterals of the father with reference to ancestral and non-ancestral lands are stated in paragraph 23 of Rattigan's Digest of Customary Law. it is categorically stated in sub-paragraph (2) of that paragraph that the daughter succeeds to the self acquired property of the father in preference to the collaterals even though they are within the fourth degree. Rattigan's work has been accepted by the Privy Council as "a book of unquestioned authority in the Punjab". Indeed the correctness of this paragraph was not disputed before this Court in Gopal Singh v. Ujagar Singhi (1955) I SCR 86 = (AIR 1954 SC 1579). It is not now open to the respondent to show whether any of the circumstances mentioned in sub-paragraph R.S.A.No. 1793 of 2005 (O&M) R.S.A.No. 4601 of 2004 (O&M) R.S.A.No. 1182 of 2005 (O&M) 9 (2) of paragraph 23 of Rattigan's Digest of Customary Law is present here as the previous decision is resjudicata between the parties and in any case it has not been attempted to be shown in this case. But in the view we have taken that it is Section 8 of the Hindu Succession Act that applies and not the Customary Law the appellants cannot succeed in this appeal.” Learned counsel has also placed reliance on Teg Singh and others vs. Charan Singh and another AIR 1977 Supreme Court 1699, wherein it was held that declaratory decree passed earlier enures for the benefit of reversioners. Learned counsel for the respondents, on the other hand, have submitted that Kartari Devi had become absolute owner of the suit property after coming into force of the Act. In support of their arguments, learned counsel have placed reliance on Gopal Singh and another vs. Dile Ram (dead) by L Rs. and others P.L.R Vol.XCIII- (1988-1), wherein, it was held as under:- “ Held, that the compromise decree should be construed as that the parties agreed that the properties would be enjoyed by widow till her life time and the gift made by her would remain operative till the lifetime but not beyond that when she inherited the properties from her husband in 1942 she had only life interest in the said properties. She was limited owner upto 1956, thereafter in 1956 when the Hindu Succession Act, 1956 came into R.S.A.No. 1793 of 2005 (O&M) R.S.A.No. 4601 of 2004 (O&M) R.S.A.No. 1182 of 2005 (O&M) 10 operation by virtue of Section 14 of the said Act limited estate became absolute estate. The position therefore was that if she had gifted away her properties when she was limited owner would not have become absolute owner after coming into operation of the 1956 Act and would not have been competent to bequeath the properties by will. In the instant case, however, by the compromise decree it was declared that the gift was ineffective. The effect of that declaration was that she continued to be the limited owner of the properties thereafter until 1956. The effect of the Hindu Succession Act, 1956 was that a female Hindu can transfer her property by Will. Since the Will was subsequent to this period she had absolute estate and full capacity to make the Will.” Learned counsel have further placed reliance on Mst Mohindero vs. Kartar Singh and others 1991 Supp (2) Supreme Court Cases 605, wherein, it was held as under:- “Santi held the property as limited owner till the coming into force of the Act. She became full owner thereafter. When she died on October 6, 1956 succession to her property was to be governed by the Act.” Appeal filed by defendant No.3 Satinder Kumar @ Satish Kumar was dismissed as no relief was claimed against him nor any finding was given against him by the trial Court. Moreover, the said R.S.A.No. 1793 of 2005 (O&M) R.S.A.No. 4601 of 2004 (O&M) R.S.A.No. 1182 of 2005 (O&M) 11 appellant was proceeded ex parte before the trial Court. In these circumstances, the appeal filed by appellant Satinder Kumar @ Satish Kumar-defendant No.3 had been rightly dismissed by the first Appellate Court. Admittedly, Kartari Devi is the wife of Nathu Ram. So far as the gift deed executed by Kartari Devi in favour of Chawli Devi is concerned, the same was held to be ineffective on the reversionary rights of the plaintiffs in a civil suit No.4 of 1942 decided on 25.5.1942. The question that requires consideration is as to whether Kartari Devi had become absolute owner in possession of the suit property in view of Section 14 of the Hindu Succession Act, 1956 (the Act for short). It has been held in Shakuntla Devi vs. Kamla and others (2005) 5 Supreme Court Cases 390, as under:- “12.Almost similar is the facts of this case inasmuch as in this case also since on the coming into force of the Hindu Succession Act by virtue of Section 14(1) the limited right got by Uttamdassi under the Will got enlarged to an absolute right in the suit property. Thus, she became absolute owner of the property, hence, any declaratory right obtained earlier by the reversioner as contemplated in the Will cannot be the basis on which the suit for possession could be maintained unless, of course, the claimants in the suit for possession established a better R.S.A.No. 1793 of 2005 (O&M) R.S.A.No. 4601 of 2004 (O&M) R.S.A.No. 1182 of 2005 (O&M) 12 title independent of the declaratory decree obtained by them. 14. It is to be noticed that in the present case when the first declaratory decree was obtained, the law as it stood then right of Uttamdassi remained a limited right, in the suit property hence, a declaratory decree was given in favour of the plaintiffs in that suit, but by the time the second declaratory decree was obtained by the appellant herein, this Court by the judgment in V.Thulasamma's case had declared the law under Section 14 of the Hindu Succession Act holding that the estate of persons similarly situated as Uttamdassi got enlarged and a beneficiary under a Will with limited rights became the absolute owner of the same. Since the judgment of this Court in Tulasamma's case was the law on that date and is the law currently, the second declaratory decree was contrary to the said declaration of law made by this Court. Therefore, that declaration cannot be of any use to the appellant. In view of the law laid down by this Court in Mathura Prasad's case (supra) as extracted herein above. 22. Unfortunately for the appellant the declaration obtained by her based on which she was seeking possession in the present suit being contrary to law, the courts below correctly held that the appellant could not seek possession on the basis of such an illegal R.S.A.No. 1793 of 2005 (O&M) R.S.A.No. 4601 of 2004 (O&M) R.S.A.No. 1182 of 2005 (O&M) 13 declaration. Thus, the law is clear on this point i.e. if a suit is based on an earlier decree and such decree is contrary to the law prevailing at the time of its consideration as to its legality or is a decree granted by a court which has no jurisdiction to grant such decree, principles of res judicata under Section 11 of the CPC will not be attracted and it is open to the defendant in such suits to establish that the decree relied upon by the plaintiff is not a good law or court granting such decree did not have the jurisdiction to grant such decree.” It has been held in Darshan Singh vs. Ram Pal Singh and another AIR 1991 Supreme Court 1654, as under:- “17.From the statement of Objects and Reasons of the Amendment Bill, 1973, there is no doubt that along with the repeal of the Punjab Pre emption Act, 1913 it was considered that the right to contest alienation of immovable property whether ancestral or non-ancestral on the grounde that it was contrary to custom should be done away with. The Punjab Pre-emption (Repeal) Act, 1973, Punjab Act No.11 of 1973 by Section 2 repealed the Punjab Pre-emption Act, 1973, Section 3 of that Act puts a complete bar to pass decrees in suit for pre-emption and said: “ On and from the date of commencement of the Punjab Pre-emption (Repeal) Act, 1973, no court shall pass a decree in any suit for pre-emption.” R.S.A.No. 1793 of 2005 (O&M) R.S.A.No. 4601 of 2004 (O&M) R.S.A.No. 1182 of 2005 (O&M) 14 By Section 4 of the Punjab Pre-emption (Repeal) Act, 1973, the Punjab Pre-emption (Repeal) Act, Ordinance, 1973, was repealed. There is no doubt that from the commencement of the Punjab Pre-emption (Repeal) Act, Ordinance, 1973, was repealed. There is no doubt that from the commencement of the Punjab Pre-emption (Repeal) Act, 1973, no Court shall pass a decree in any suit for pre-emption. It is common ground that that Act has done away with any claim of pre-emption from the date of the commencement of that Act. In other words, from that date the customary pre-emption has been done away with. There can, therefore, be no doubt that the Amendment Act similarly had the object and purpose of doing away with the custom of contesting alienation. That was sought to be achieved firstly by deleting the provision of Section 6 and secondly by putting a complete bar to contesting alienations or appointments of heirs in respect of both ancestral and non-ancestral immovable property. There can, therefore, be no doubt that the intention of the legislature was to do away with the custom of contesting alienation altogether. There is also no doubt about the competence of the legislature in passing the Amendment Act with a view to do away with the custom. 18.In Halsbury's Laws of England, 4th Edition, Volume 12, Para 441, we read: R.S.A.No. 1793 of 2005 (O&M) R.S.A.No. 4601 of 2004 (O&M) R.S.A.No. 1182 of 2005 (O&M) 15 “441. Abolition only by statute. Custom, being in effect local common law within the locality where it exists, can only be abolished or extinguished by Act of Parliament. An Act of Parliament may abolish a custom either by express provision or by the use of words which are inconsistent with the continued existence of the custom.” The intention of the legislature being clear, in case of the Pre-emption Act by repeal of the Act itself the legislature put an end to that custom. Has the legislature similarly put an end to the custom of contesting alienation either by express provision or by the use of words which are inconsistent with the continued existence of the custom? The effect of omission of Section 6 only by the amendment Act, as was done by the Ordinance, might perhaps have been ambiguous as it could even mean that the restriction was removed or that it would not be restricted to collaterals. The provisions of Section 7 that no person shall contest any alienation of immovable property whether ancestral or non-ancestral or any appointment of an heir to such property on the ground of such alienation or appointment is contrary to custom undoubtedly puts an end to contest of any alienation. This should normally leave no doubt that the use of the above words and expression are inconsistent with the continued existence of the custom.” R.S.A.No. 1793 of 2005 (O&M) R.S.A.No. 4601 of 2004 (O&M) R.S.A.No. 1182 of 2005 (O&M) 16 Section 14 of the Act reads as under:- “ Property of a female Hindu to be her absolute property.- 1) Any property possessed by a female, Hindu, whether required 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 of arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.” Thus, as per the above provision, any property possessed by a female Hindu shall be held by her as full owner whether required after or before commencement of the Act. Decree dated 25.5.1942 R.S.A.No. 1793 of 2005 (O&M) R.S.A.No. 4601 of 2004 (O&M) R.S.A.No. 1182 of 2005 (O&M) 17 was passed in view of the law prevalent at that time. However, after coming into force of the Act, Kartari Devi became absolute owner of the suit property. Hence, the suit filed by the plaintiffs, basing their claim that the suit property reverted back to them after the death of Kartari Devi, was liable to be dismissed. In the present case, Kartari Devi has died in the year 1989, thus, after coming into force of the Act. Although Kartari Devi had limited interest in the property before coming into force of the Act but after the Act came into force, the limited interest of Kartari Devi qua the suit property matured into absolute ownership. Hence, the plaintiffs could not claim interest in the suit property as reversioners in view of the Amending Act of 1973 qua Punjab Custom (Power to Contest) Act (2 of 1920). Kartari Devi could alienate the property in the manner she liked as she was absolute owner of the suit property and hence, the Civil Court decree dated 29.3.1989 suffered by Kartari Devi in Civil Suit No.131 of 1989 could not be set aside. The judgments relied upon by learned counsel for the appellants fail to advance the case of the appellants as these are based on different facts. No substantial question of law arises in these regular second appeals, which would warrant interference by this Court. Accordingly, the same are dismissed. (SABINA) JUDGE May 30, 2011 anita /+