Regular Second Appeal No. 144 of 2003 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 144 of 2003 Date of Decision: July 20, 2009 Bhim Sain ......... Appellant versus Kaushalya Devi alias Prem Lata and others .......... Respondents 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present:- Shri Vikas Bahl, Advocate for the appellant. Ms. Shashi Ghuman, Advocate for the respondent HEMANT GUPTA, J. Defendant No.1 Bhim Sain is in the second appeal aggrieved against the judgment and decree passed by the learned Courts below whereby suit for possession and for recovery of Rs.14400/- as compensation for occupation of the shop in dispute, was decreed. The brief facts out of which present appeal arises is that Ghansham Dass, father of the parties, was the owner of the property in dispute. The plaintiff claims that Smt. Rattan Devi, mother of the parties, was owner of the property in dispute after the death of her husband. She executed a registered Will on 21.07.1986. The plaintiff alleged that since he is the owner of the suit property by virtue of the Will of his mother, thus, the Regular Second Appeal No. 144 of 2003 [2] defendant No.1 is in illegal possession of the same. Therefore, the plaintiff is entitled to possession and also compensation for wrongful enjoyment of possession of the shop by the said defendant. Defendant No.1 in his written statement denied the execution of Will by Rattan Devi. It was asserted that Ghansham Dass, father of the parties, executed Will dated 23.06.1968 in favour of his four sons. After the death of Ghansham Dass, defendant No.1 had become owner of the suit property to the extent of his share. Earlier, he has filed a civil suit in the year 1993. Will dated 23.06.1968 was accepted but the Will 21.07.1986 propounded by the plaintiff was rejected. Therefore, the defendant claimed that he is in possession of the property as owner. Other defendants except defendant No.3 admitted the claim of the plaintiff. Plaintiff examined PW1 Ranjit Kanwar to prove Will dated 21.07.1986. Will was presented for registration in the presence of Tarsem Lal Lambardar and Raj Kumar who are the attesting witnesses of the Will as well. PW1 Ranjit Kanwar, Sub Registrar, has deposed that the original Will Exhibit P-2 is signed by Tarsem Lal and he is will conversant with the signatures of Tarsem Lal as he used to put his signatures on various documents in his presence. PW2 is the plaintiff. PW3 Balwinder Singh is the draftsman who prepared the site plan and PW4 Jiwan Kumar is attorney of the plaintiff. In defence, Will dated 23.06.1968 executed by Ghansham Dass was produced as Exhibit D-1. DW2 Bhim Sain has deposed that Ghansham Dass died leaving behind four sons, five daughters and widow Smt. Rattan Devi. As per Will, Smt. Rattan Devi was allowed to usufruct / maintenance out of the property alone. She is limited owner and not competent to bequeath the property. Regular Second Appeal No. 144 of 2003 [3] Learned trial Court relying upon Sellammal and others vs. Nellammal (dead) by LRs, AIR 1977 SC, 1265; Santhanam Kachapalaya Gurukal vs. V. Subramanya Gurukal, AIR 1977 SC 2024 and Gulwant Kaur and another vs. Mohinder Singh and another, AIR 1987 SC 2251 held that Smt. Rattan Devi became absolute owner of the estate of Ghansham Dass on the basis of Will Exhibit D-1. Thus, she has right to bequeath the property in favour of plaintiff. It was also found that since both the witnesses of the Will are not alive, as per statement of counsel for the plaintiff on 28.07.1995 and the statement of PW4 attorney of the plaintiff, the testimony of Sub Registrar is sufficient proof of execution of the Will. In respect of previous decree in a suit filed by the defendant in the year 1993, it was held that no issue regarding title of the suit property was framed, therefore, judgment and decree, Exhibits D2 and D3 respectively, are not helpful to the defendant. On the basis of such finding, the suit was decreed. The learned First Appellate Court found that in Will Exhibit D1, Smt. Rattan Devi was given property as “MALIKA BA HAQDAR” i.e., owners as a matter of right. On the basis of said recital, it was held that the property vest in Smt. Rattan Devi as a full owner. The learned First Appellate Court also found that Ranjit Kanwar was personally known to Tarsem Lal. He identified the signatures of Tarsem Lal and that Smt. Rattan Devi had thumb-marked the endorsement in his presence and the attesting witnesses. Therefore, the Will Exhibit P-2 is proved to be executed. Still aggrieved, the defendant is in second appeal. Learned counsel for the appellant has appended translated copy of the Will dated 23.06.1968 with Memorandum of Appeal. The relevant Regular Second Appeal No. 144 of 2003 [4] part reads as under:- “ ...... Now, I with my full senses and of my own sweet will, hereby execute this Will to the effect that after my death, my property of all kinds i.e., movable and immovable i.e., land, house, households, my debts and recoveries, money deposited in the Banks and Post Offices shall be owned by my wife Smt. Rattan Devi and none else shall have any connection or concern, she will not have any right to transfer in any manner, the immovable property given to her through this Will and she will only be entitled for her maintenance. After the death of Smt. Rattan Devi above mentioned all the four namely, Bhim Sain, Baldev Mitter, Mohan Lal and Shiv Kumar, sons of the Executor, shall be entitled as right holders in equal four shares and the above said property shall be entered in their names and they shall have the right to transfer the same property.....” In view of the contentions raised, the following questions arise for consideration:- 1. Whether Will dated 23.06.1968 conferring limited estate on Smt. Rattan Devi ripens into full ownership in terms of section 14(1) of the Hindu Succession Act, 1956? 2. Whether Will dated 21.07.1986 can be said to be duly proved on the basis of statement of Sub Registrar ? 3. Whether judgment and decree, Exhibits D-2 and D-3 respectively, operates as res judicata in respect of right of Smt. Rattan Devi in the present suit ? The question whether limited estate conferred on a Hindu Widow in lieu of maintenance ripens into full ownership first came up for consideration before the Supreme Court in V. Tulasamma v. Sesha Regular Second Appeal No. 144 of 2003 [5] Reddy, (1977) 3 SCC 99. After considering the texts of Shastric Hindu Law, the Court found that the following propositions emerge with respect to the incidents and characteristics of a Hindu woman’s right to maintenance:- “(1) that a Hindu woman’s right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her even if he has no property. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow; (2) though the widow’s right to maintenance is not a right, to property but it is undoubtedly a pre-existing right in property i.e. it is a jus ad rem not jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a decree from the civil court; (3) that the right of maintenance is a matter of moment and is of such importance that even if the joint property is sold and the purchaser has notice of the widow’s right to maintenance, the purchaser is legally bound to provide for her maintenance; (4) that the right to maintenance is undoubtedly a pre- existing right which existed in the Hindu law long before the passing of the Act of 1937 or the Act of 1946, and is, therefore, a pre-existing right; (5) that the right to maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which the wife becomes a sort of co-owner in the property of her husband, though her co-ownership is of a subordinate nature; and (6) that where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchases the same is in a position to make due Regular Second Appeal No. 144 of 2003 [6] arrangements for her maintenance.” The Court proceeded to hold to the following effect:- “ 61. We would now like to summarise the legal conclusions which we have reached after an exhaustive considerations of the authorities mentioned above on the question of law involved in this appeal as to the interpretation of Sections 14(1) and (2) of the Act of 1956. These conclusions may be stated thus: “(1) The Hindu female’s right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre- existing rights. (2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends sought to be achieved by this long needed legislation. Regular Second Appeal No. 144 of 2003 [7] (3) Sub-section (2) of Section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of Section 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by Section 14(1) or in a way so as to become totally 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 in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-existing rights. In such cases a restricted estate in favour of a female is legally permissible and Section 14 (1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the female’s limited interest would automatically be enlarged into an absolute one by force of Section 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-section (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee. (5) The use of express terms like ‘property acquired by a female Hindu at a partition’, ‘or in lieu of maintenance’, ‘or arrears of maintenance’, etc. in the Explanation to Section 14(1) clearly makes sub-section (2) inapplicable to these categories which have been expressly excepted from the operation of sub-section (2). (6) The words ‘possessed by’ used by the Legislature in Section 14(1) are of the widest possible amplitude and Regular Second Appeal No. 144 of 2003 [8] include the state of owning a property even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title. (7) That the words ‘restricted estate’ used in Section 14 (2) are wider than limited interest as indicated in Section 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee.” Subsequently, in Raghubar Singh v. Gulab Singh, (1998) 6 SCC 314, the Court held as under:- “23. Thus, we find that there is enough authority for the proposition that the right to maintenance of a Hindu female is a pre-existing right, which existed in the Hindu law long before the Act of 1937 or the Act of 1946 came into force and is not a creation of those statutes, which only recognised that position......” Recently, the said issue came up for consideration in Santosh and others vs. Saraswathibai and another, 2008(1) SCC 465. The Court explained that where a female Hindu acquires property by way of gift or under Will or under any other instrument or under a decree or order of the civil Court or under an award without any pre-existing right for the first Regular Second Appeal No. 144 of 2003 [9] time as a grant then such female shall have a limited estate under section 14 (2) of the Hindu Succession Act, 1956 but where a female has a pre-existing right and a right for maintenance, that limited estate will ripened into full ownership. Learned counsel for the appellant has relied upon Navneet Lal alias Rangi vs. Gokul and others, AIR 1976 SC 794 to contend that the Will is to be construed strictly. There is no dispute about that proposition. However, it was not a case where even an argument was raised that limited ownership to a female ripens into full ownership or otherwise by reference to Section 14 of the Hindu Succession Act, 1956. Therefore, the said judgment provides little assistance to learned counsel for the appellant. In the present case Will dated 23.06.1968 is in favour of Smt. Rattan Devi conferring limited estate. Smt. Rattan Devi has pre-existing right as the property is of her husband and the husband is under obligation to maintain his wife. Such limited estate confined on Smt. Rattan Devi under Will dated 23.06.1968 ripens into full ownership. It is the finding recorded by the Courts below and I do not find that such finding raises any substantial question of law for consideration of this Court. The second question of law which is required to be considered is whether Will dated 21.07.1986 can be said to be duly proved on the basis of statement of Sub Registrar alone without examining any of the attesting witnesses. The decision of the Supreme Court in Dharam Singh vs. Aso and another, AIR 1990 SC 1888 is again not helpful to the appellant as on facts it was found that the Registrar cannot be a statutory attesting witness. However, the facts of the present case support the finding that Sub Registrar is proved to be the attesting witness. Regular Second Appeal No. 144 of 2003 [10] PW1 Ranjit Kanwar is the Sub Registrar. Tarsem Lal is one of the attesting witnesses of the Will. The Sub Registrar has identified the signatures of Tarsem Lal as he has seen him writing and signing on various documents during his discharge of duties of Sub Registrar. The Sub Registrar has deposed that the contents of the Will were read over and explained to Smt. Rattan Devi as well. It has come on record that both the attesting witnesses have died which is apparent from the statement made by the counsel and PW4 attorney of the plaintiff. There is no evidence that such attesting witnesses were available but still not examined by the plaintiff. Therefore, the statement of PW1 Ranjit Kanwar, Sub Registrar, is sufficient to prove the execution of the Will. Hon'ble Supreme Court in Babu Singh and others vs. Ram Sahai @ Ram Singh, AIR 2008 SC 2485, examined the scope of Section 69 of the Indian Evidence Act, 1872 and held that where the attesting witnesses are dead, the Will may be proved by examining the witnesses who were able to prove the handwriting of the testator or executant. It was held to the following effect:- “14. It would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69, i.e., by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others”. A Single Bench of this Court in Ram Saran vs. Deep Kumar and others, 2007(4) Punjab Law Reporter 733 has considered the provisions of Section 60 of the Registration Act, 1908 and returned a finding that when the Sub Registrar testifies that the parties had signed/ Regular Second Appeal No. 144 of 2003 [11] thumb-marked the Will in his presence and the contents thereof were read over before doing so, the Will in question is a valid one. In view of the said enunciation of principle of law, even the second question of law does not require further consideration. The third question is whether the judgment and decree in the previous suit operates as res judicata. The previous suit for permanent injunction was instituted by the present appellant restraining his other brothers from interfering in his possession except in due course of law. The issue framed was whether the plaintiff is in exclusive possession of the suit property. There is no issue of ownership. The learned District Judge in Para No. 8 of the judgment has recorded to the following effect: - “ 8. Admittedly, the property in dispute at one time was owned by Ghanshyam Dass, father of the parties. It is also an admitted fact that he had executed Will, Exhibit P-1, in favour of his wife Rattan Devi. She was the limited owner. Ghanshyam Dass and Rattan Devi have died and the parties apparently have acquired the right of joint ownership. The counsel for the appellants/defendants has not been able to controvert the right of joint ownership of the parties”. It is the said finding which is sought to be pressed by the appellant in support of his contention that Smt Rattan Devi was a limited owner. The observation made in Para No. 8 of the judgment of the learned First Appellate Court was not in respect of any issue raised in the suit. As a matter of fact, there is no dispute that Smt. Rattan Devi was granted limited ownership in the Will. It is by operation of law that she became full owner. The appellant has sought to protect his possession and sought dispossession in accordance with law in the previous suit, therefore, Regular Second Appeal No. 144 of 2003 [12] such simpliciter suit for injunction on the basis of possession of the present appellant cannot be said to operate as res judicata when the matter in issue in the aforesaid suit was substantially and materially different from what has been raised in the present suit. In view of the above discussion, I do not find any merit in the present appeal and the same is dismissed. July 20, 2009 ( HEMANT GUPTA ) ks JUDGE