IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 398 of 1999 Reserved on :28.12.2010 Date of Decision: 16.3.2011 Anant Ram Appellants/plaintiffs Versus Smt. Indira Devi Respondents/defendants Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellants: Mr. Bhupender Gupta, Sr. Advocate with Ms. Charu Gupta, Advocate. For the respondents: Mr. Sanjeev Kuthiala, Advocate Sanjay Karol, J. Appeal No.RSA 398 of 1999, was admitted on the following substantial questions of law:- 1. Whether the provisions of Section 14 of the Hindu Succession Act, 1956, are applicable to the facts of the present case and if so, to what effect and extent? 2. What is the effect of non-framing of all the relevant issues on the basis of pleadings of the parties? 2. Briefly stated the facts are as under:- 3. Shri Sangtu was possessed with certain immovable properties including a house (these properties constitute the suit property). Vide Whether the reporters of Local Papers are allowed to see the Judgment? 2 registered gift deed dated 11.3.1970 (Ext.P-7) he transferred the ownership of the house in favour of his children i.e. two sons, namely, Punnu Ram and Moti Ram in equal share. During the life time of Punnu Ram, Moti Ram and Sangtu, this gift was never assailed by anyone including the parties to the suit. With regard to his remaining property, Sangtu executed Will dated 16.3.1971 (Ext.P-5) bequeathing his interest in favour of his aforesaid two sons. He had no other legal heir. However, the Will was conditional in nature. As per the terms of the will, interest in the property would devolve upon both of his sons in equal shares subject to the condition that in case no son is born to any of his son then both the sons will remain in equal share of the entire property and after their death their widows/daughters shall have only life interest therein without any right to alienate the same. 4. Sangtu died on 16.3.1983. His son Punnu Ram died in the year 1993 leaving behind his two male legal heirs (sons) i.e. Anant Ram and Rattan Chand being plaintiffs No.1 and 2, respectively. Moti Ram expired leaving behind his two legal heirs i.e. wife Sauji and daughter Indira Devi being defendants No.1 and 2, respectively. During his life time, Moti Ram executed Will dated 25.6.1990 (Ext.P-4) bequeathing his self acquired property in favour of the defendants 3 and ancestral property in favour of the plaintiffs/their predecessor-in-interest. Contrary to the Wills executed by Sangtu and Moti Ram, defendants got the estates mutated in the revenue record in their favour as though they also were entitled to succeed to the estate of Sangtu and Moti Ram. Disputes arose between the parties and consequently plaintiffs filed the suit for declaration of their rights. 5. Based on the pleading of the parties, trial Court struck the following issues:- 1. Whether the plaintiffs are entitled for a decree of declaration as alleged? OPP. 2. Whether the plaintiffs are entitled for the relief of injunction as alleged? OPP. 3. Whether the suit is not within time? OPD. 4. Whether the plaintiffs are estopped from filing the present suit by her act and conduct? OPD. 5. Whether the suit is bad for non-joinder of necessary parties? OPD. 6. Whether the plaintiffs have not come with clean hands and filed the present suit by suppressing material facts, if so, its effect? OPD. 7. Whether the site plan of the property annexed with the plaint is not correct and, if so, its effect? OPD. 6. In terms of judgment and decree dated 4.8.1998 passed by Sub Judge Ist Class, Manali, in Civil Suit No.57/98/93, titled as Anant Ram and 4 another vs. Sauji and another, plaintiffs’ suit was decreed to the effect that Wills Ext.P-4 and Ext.P-5 were validly executed by Moti Ram and Sangtu and the parties were owners of the respective properties in terms thereof. Plaintiffs’ claim to the entire estate of Moti Ram was rejected. 7. In the appeal filed by the defendants (C.A. No.58 of 1998), impugned judgment and decree stands set aside by the District Judge, Kullu, H.P. in terms of judgment and decree dated 10.8.1999. Plaintiffs’ suit stands dismissed in toto with costs. 8. Operative portion of the findings of the learned lower Appellate Court are as under:- “19. From the scrutiny of the entire oral as well as documentary evidence, the will which was executed earlier by Shri Sangtu Ex.P5 has been proved by the witnesses that the document was written by the petition writer PW-4 and Shri Sangtu has appended his thumb impression in presence of witnesses on the will and thereafter the document was registered. As per terms and condition of the will, deceased Sangtu has given his entire property to his both sons in equal shares with a condition that in case no son is born to any of his sons namely Punnu and Moti Ram, in that case both the sons shall remain owners in possession in equal shares of the entire property and after their death their widows shall also have the life interest in the entire property. The L.Rs. would have no right to alienate or execute any gift deed regarding 5 the suit property. Necessary mutation of inheritance was attested in favour of Shri Punnu and Moti Ram as per mutation No.1823 dated 8.2.79. There is a specific reference of the will dated 16.3.71. Shri Moti Ram has also executed one will in favour of respondent/appellant whereby he has only given his self acquired property to his wife Smt. Sauji and daughter Smt. Indira Devi. The property which he has inherited from his maternal aunt Smt. Budhi Devi and a house which he has purchased from Jagat Ram and the property which he has inherited from his wife Smt. Surti Devi is given to Smt. Sauji Devi and Smt. Indira Devi in equal shares. In addition to this, the property which he has inherited from his father Shri Sangtu has been given to S/Sh. Anant Ram and Rattan Chand in equal shares. This will Ex.P4 has also been proved on record. 20. It is not understood as to why the plaintiffs/respondents have filed a suit for declaration to the effect that the will Ex.P5 dated 16.3.71 is binding and will dated 25.6.90 is illegal. Shri Moti Ram has not given any property to his wife and daughter, the present appellant which he has inherited from his father as is evident from will Ex.P4 dated 25.6.90. 21. Further, it has been proved that deceased Sangtu has executed one gift deed in favour of his both sons namely Punnu and Moti Ram whereby he has given his four storeyed house with slate roof to his both sons in equal shares and necessary possession was also delivered. Copy of gift deed dated 11.3.1970 is Ex.P-7 placed on the court file, meaning thereby that ownership and possession of the house was decided by the 6 deceased Sangtu during his life time and both the sons S/Sh. Punnu and Moti Ram become owners in possession of the house in equal shares and the house cannot be governed under the terms and condition of the will Ex.P5 executed by deceased Sangtu. 22. From the perusal of the entire oral as well as documentary evidence and the wills Ex.P4 and P5, the landed property inherited by deceased Moti Ram from his father Sangtu has been given by him to plaintiff/respondents in equal shares and the self acquired property alongwith house has been given by deceased Moti Ram to his wife and daughter in equal shares. It is not clear from the entire pleading and evidence of the plaintiffs that what relief they want from the Court when the entire dispute has been settled by Moti Ram himself as per his will Ext.P4, placed on the court file. The suit of the plaintiffs is for declaration that the entire property which Shri Punnu Ram and Moti Ram inherited from their father Sangtu is allowed to be owned and possessed by defendants/appellants as limited owner during their life time which fact has already been decided by Shri Moti Ram in his will Ex.P4 placed on the court file and in view of the will executed by Shri Moti Ram, no relief can be granted to the plaintiffs. Accordingly, the point is answered.” 9. Having come to the conclusion that plaintiffs alone were owners of the estate of Sangtu the Court below could not have dismiss the plaintiffs’ suit in toto. Plaintiffs had laid challenge to the 7 mutation effected at the instance of the defendants on terms contrary to the Will in question. Therefore, there was no basis to dismiss the plaintiffs’ suit. The decree passed by the trial Court ought to have been affirmed particularly when the findings returned by the trial Court were affirmed. Defendants had assailed the Will Ext.P-4 executed by their predecessor-in-interest. They not only failed to prove the same but also that the property in the hands of Sangtu was ancestral and due to the prevalent custom he was not competent to execute the Will Ext.P- 5. Importantly, defendants did not lay any challenge to the validity of the gift deed Ext.P-7, which in any event have proved on record by the plaintiffs. Defendants have taken multiple but mutually contradictory pleas. Importantly they do not dispute the signatures of Moti Ram on Will Ext.P-5. Execution of Will Ext.P-5 and its genuineness and authenticity can also not be disputed as Moti Ram himself executed Will Ext.P-4 on the lines of Will Ext.P-5. The intention of the testator was evidently clear. He was a Hindu and as per the then prevalent custom he only desired that his interest, in the land and not the house, devolve upon his male descendants. There is no restriction in law to this condition. Nothing has been shown to the contrary except the provisions of Section 14 of the Hindu Succession Act (for short, the 8 Act) with which I shall deal herein after a little later. Concurrent findings with regard to validity of the Will Ext.P-4 has not been assailed by the defendants. Challenge to the findings with regard to the genuineness of Wills Ext.P-4 and Ext.P-5, in these proceedings cannot be allowed for the reason that the defendants’ appeal already stands dismissed by this Court. 10. According to Mr. Kuthiala, learned counsel for the defendants, right of maintenance in favour of defendants had actually flowered into a substantive right of ownership in their favour for the reason that it was a subsisting right of a female for maintenance and was protected by virtue of Section 14 of the Act. 11. Section 14 of the Act 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 her marriage, or by her own skill or exertion, or by purchase or by 9 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 a 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.” 12. Admittedly Sangtu and Punnu Ram had pre- deceased Moti Ram. As on the death of Sangtu, Sauji and Indira Devi in fact had not acquired any interest in his estate. Moti Ram was alive at that time and it was he who had acquired interest, limited in nature though, admittedly he had no male issue. Hence the submission is misconceived. The defendants were neither possessed of nor were they having any ownership in the estate of Sangtu. In fact sub- section (2) of Section 14 of the Act makes the position evidently clear. It is an exception to sub- section (1) of Section 14 and the provisions of sub- section (1) are not to apply if the interest prescribed is restricted in the estate. 13. Undoubtedly word “possessed” would mean “the estate of owning or having in one’s hand or power. It need not be actual physical possession or personal 10 occupation of the property by the female but may be possessed in law. [Kotturuswami v. Veeravva Jagannathan Pillai, AIR 1959 SC 577]. 14. Defendants had right of succession only through Moti Ram and not Sangtu and Moti Ram cannot be said to be a female Hindu so as to fall within the ambit and scope of Section 14 of the Act. Hence, in my considered view, Section 14 of the Act is inapplicable in the instant case and it cannot be said that defendants right of maintenance had flowered into a substantive right of ownership over and above the plaintiffs’ right. 15. My attention was invited to the decisions of the Courts in Raghubar Singh and others vs. Gulab Singh and others, AIR 1998 S.C. 2401 and M.Shanmugha Udayar vs. Sivanandam and others, AIR 1994 Madras 123. Ratio of law in both the decisions is thus inapplicable in the facts of the instant case. 16. Substantial Question of law No.1 is answered accordingly. 17. Having gone through the pleadings of the parties as also grounds of appeal, I am of the view that question No.2 does not arise for consideration at all. Issues were framed by the trial Court, based on respective pleadings of the parties in their presence. No objection on the same was ever taken by the parties 11 at any point of time. In any event the issues were omnibus in nature covering the pleas of the parties. 18. Consequently, present appeal is allowed, judgment and decree passed by the learned first appellate Court is set aside and that of learned trial Court is affirmed. However, there shall be no order as to costs. March 16, 2011 (Sanjay Karol) (C) Judge.