RSA No.2915 of 1984 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2915 of 1984 (O&M) Date of Decision: 30.03.2011 Mohinder Singh and others . . .Appellants Versus Mukhtiar Singh (died) through his LRs and others . . . Respondents ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.Rajesh Garg, Advocate, for the appellants. Mr.Sanjay Majithia, Sr. Advocate with Mr.Shailender Sharma, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. This is plaintiffs second appeal, who are the collaterals of one Ujagar Singh, who was the owner of the land in dispute and was married to Dhan Kaur and had a son namely, Malkiat Singh. The plaintiffs filed a suit for possession against sons of one Asa Singh (defendants No.1 & 2) in respect of suit land alleging therein that after the death of Ujagar Singh, his estate was inherited by his son Malkiat Singh and after his death it devolved upon Dhan Kaur as his mother, who wanted to remarry but as the parties were governed by custom under which a widow forfeits her right to the property on her re-marriage, the predecessor-in-interest of the plaintiffs and Dhan Kaur entered into an agreement for her remarriage on the condition that Dhan Kaur would loose her all interest in the property in dispute and would be gifted some land RSA No.2915 of 1984 (O&M) - 2 - to be retained by her till death with the prohibition not to sell or transfer it with further rider that after her death the said land would also devolve upon the heirs of the donors. It was alleged that Dhan Kaur died 3-4 years ago i.e. somewhere in 1975-76 as the suit was filed on 19.10.1979 but the defendants illegally entered into possession and started claiming ownership on the basis of a Will allegedly executed by Dhan Kaur in their favour although she was not competent to do so being the limited owner. In the written statement, it was alleged by the defendants that Dhan Kaur was absolute owner of the suit land as recorded in jamabandi for the year 1956/57 and was governed by Hindu Succession Act 1956 (for short ‘the Act’) as per which she was competent to alienate and transfer her land according to her wishes. It was also alleged that remarriage of Dhan Kaur had not caused any forfeiture of her rights. They denied the story coined by the plaintiffs with regard to gift and the agreement and staked their claim on the ground that Dhan Kaur had become absolute owner. So far as defendant No.3 is concerned, he did not appear despite service and was proceeded against ex parte. On the pleadings of the parties, following issues were framed by the learned trial Court: “1. Whether the land in suit was allotted to Dhan Kaur in consolidation in lieu of the land which was once held by Malkiat Singh son of Ujagar Singh? OPP. 2. Whether the plaintiffs and Dhan Kaur were governed by custom in the matters of marriage and succession? If so, what that custom is? If not, its effect? OPP. 3. Whether the ancestors of the plaintiffs entered into any valid agreement with Dhan Kaur? If so, when on what terms and with what effect? OPP. 4. Whether ancestors of the plaintiffs gave the land to Dhan Kaur vide any gift deed? If so, when and on what terms? OPP 5. Whether the suit is within time? OPP 6. Whether the plaintiffs are entitled to the land in suit and they have got locus standi to sue? OPP RSA No.2915 of 1984 (O&M) - 3 - 7. Whether Dhan Kaur gifted any land in favour of the defendants vide gift deed dated 3.6.57? OPD 8. Whether the defendants are in adverse and hostile possession of the suit land? OPD 8-A Whether the defendants have made improvements in the suit property as alleged? If so, to what effect? OPD (framed on 4.2.82). 8-B Whether the plaintiffs are estopped by their act and conduct from filing the suit? OPD. (framed on 4.2.82) 9. Relief. Both the parties led their respective evidence on the basis of which the learned trial Court dismissed the suit of the plaintiffs by its judgment and decree dated 11.8.1982, which was upheld by the learned Appellate Court vide its judgment and decree dated 9.8.1984 as a result of which present appeal has been filed, which was admitted on 18.12.1984. In the beginning of his submissions, learned counsel for the appellants has argued that Dhan Kaur had not become absolute owner of the property in dispute which she had acquired because of an agreement (Ex.P-1) or gift deed (Ex.P-2) and as such provisions of Section 14(2) of the Act would apply which is an exception to Section 14(1) of the Act and as such Dhan Kaur had no right being a limited owner to transfer/alienate disputed property in favour of the defendants, who are the sons of her second husband Asa Singh. He further submits that after the death of Ujagar Singh, the land in dispute devolved upon his son Malkiat Singh and after his demise it went to Dhan Kaur, who in order to get re-married entered into an agreement with the predecessor-in-interest of the plaintiffs by executing document Ex.P-1, pursuant to which out of total land measuring 512 kanals 3 marlas, she relinquished 443 kanals 3 marlas of land and retained 69 kanals 0 marlas of land and a house of 0 kanal 3 marlas. He thus submitted that by virtue of the RSA No.2915 of 1984 (O&M) - 4 - instrument of relinquishment deed, Dhan Kaur had acquired rights for the first time in the property measuring 69 kanals 0 marlas and a house measuring 0 kanals 3 marlas which remained a restricted estate in her hands and has not matured in absolute ownership in terms of Section 14(1) after coming into force of the Act as Section 14(2) of the Act is an exception of Section 14(1) of the Act. In support of his submissions, he has relied upon a judgment of this Court rendered in the case of “Mst. Kirpo and others Vs. Bakhtawar Singh” AIR 1964 Punjab 474 and a Full Bench judgment delivered in the case of “Smt. Jaswant Kaur Vs. Harpal Singh and others” AIR 1977 Punjab and Haryana 341. On the other hand, learned counsel for the respondents has submitted that it is own case of the plaintiffs that after the death of Ujagar Singh his estate devolved upon his son Malkiat Singh which after his death went to his mother Dhan Kaur, therefore, it is not a case of remarriage of the widow but a case of remarriage of the mother who would not forfeit her right in the estate in case of her remarriage. He also submits that tamleek nama (Ex.P2) is of no consequence because the predecessor-interest of the plaintiffs themselves were not the owners, therefore, they could not have gifted the land to Dhan Kaur, who herself was the limited owner at that time and insofar as Dast-bardari nama/relinquishment deed (Ex.P-1) is concerned, it cannot be considered to be an instrument of acquisition of her right rather it was an instrument by which she had relinquished some of her vested rights in the property in dispute. In support of his submissions, he has relied upon decisions in the case of “Bai Vajia (dead) by LRs. Vs. Thakorbhai Chelabhai and others” AIR 1979 (SC) 993 and “Smt. Kasturi Devi Vs. Deputy Director of consolidation and others” AIR 1976 SC 2595. I have heard both the learned counsel for the parties and have perused the record. The facts are not much in dispute. The property was admittedly owned by one Ujagar Singh, who had a legally wedded wife Dhan Kaur and a RSA No.2915 of 1984 (O&M) - 5 - son Malkiat Singh. The total land in the hands of Ujagar Singh was 512 kanals 3 marlas, which devolved upon his son Malkiat Singh and after his death, upon Dhan Kaur. The plaintiffs have claimed that Dhan Kaur had executed a document (Ex.P1) on 6.8.1930 by which she had relinquished her right to the extent of 443 kanals 3 marlas of land and had retained only 69 kanals 0 marlas of land along with a house comprising of 0 Kanal 3 marlas as a limited owner. The plaintiffs have claimed their right over the property in dispute on the basis of document (Ex.P1) claiming it to be an instrument of acquisition of right in the property by Dhan Kaur and have tried to cover it by Section 14(2) of the Act. In order to appreciate the arguments raised by learned counsel for the appellants, it would be relevant to refer to Section 14 of the Act, which 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 RSA No.2915 of 1984 (O&M) - 6 - 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 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.” The crucial issue to be decided in this case is as to whether document Ex.P-1 or even Ex.P-2 confers upon Dhan Kaur a right for the first time which could be called to be a right acquired by her. As per Blacks Law Dictionary, the word ‘acquired’ means to get, procure, secure, acquire and the word ‘relinquish’ means to abandon, to give up, to surrender, to renounce some right or thing and word ‘vested’ means fixed, accrued, settled, absolute. The plaintiffs themselves have alleged that after the death of Ujagar Singh and Malkiat Singh, Dhan Kaur had become the owner meaning thereby that a right had accrued to her naturally and was not an acquired right which means a right which a person does not enjoy naturally but is owned through procurement. Moreover, document tamleek nama (Ex.P2) has no bearing on the facts of this case because the predecessor-interest of the plaintiffs were themselves not the owners, therefore, they had no competence to gift the suit land to Dhan Kaur and document (Ex.P-1) relinquishment deed/dast bardari nama is not a RSA No.2915 of 1984 (O&M) - 7 - document of acquisition of right rather it is a document of relinquishment of an acquired right. Thus, document Ex.P1 cannot be termed to be a document of acquisition of a right to be brought within the definition of an “instrument” which is covered by Section 14(2) of the Act. The judgment relied upon by the learned counsel for the appellants in the case of Mst. Kirpo and others (Supra) is altogether on different facts because in that case it was held that “Section 14(2) is an exception to Section 14(1) and in order that Section 14(2) may apply then it has to be established that the property was acquired under a decree or order or instrument. Where estate is lost by a female Hindu and it is re-acquired by her by reason of a compromise, it will be tantamount to acquisition within the meaning of Section 14(2) and therefore, she will have only restricted estate if the deed of compromise so prescribes”. In the abovecited case, Mst. Kirpo had remarried after the death of her husband with the husband’s collateral. On her remarriage a dispute arose as to whether she had forfeited the right to the property which has acquired from the husband by the reason of re-marriage. That dispute was compromised and it seems to have been assumed that she had forfeited her estate but by compromise and she was allowed to retain possession of the property on the conditions specified in the compromise. In these circumstances, it was observed that she acquired the property under the compromise and was held that if the estate is lost and is reacquired by reason of compromise, then it will tantamount to acquisition within the meaning of Section 14(2) of the Act. The facts of this case are altogether different from the facts of the present case and as such this judgment is not applicable. The other case cited by learned counsel for the appellants is Smt. Jaswant Kaur (Supra) in which the facts are that one Gurnam Singh was owner of the property. He executed a Will of his entire property in favour of his wife Jaswant Kaur on 5.6.1938, which was registered on 6.6.1938. He left behind his widow and two minor daughters and one brother Major Harpal Singh. By virtue of Will, Jaswant Kaur became the owner of the property in dispute which she alienated/disposed of by executing various sale deeds/mortgage deed etc., which led to the filing of a suit by Major Harpal Singh to the effect that the RSA No.2915 of 1984 (O&M) - 8 - alienation effected by Jaswant Kaur is illegal and in excess of the rights conferred upon her by the Will because in Will Gurnam Singh had categorically mentioned that after the death of Jaswant Kaur the property would revert back to Major Harpal Singh. In this background the Full Bench had decided that Jaswant Kaur-wife of the testator (Gurnam Singh) had no right in the disputed property during the life time of her husband Gurnam Singh. Her rights were created by virtue of Will in which it was mentioned that she shall have the property for the life time with which she would maintain herself and bring up the daughters and that she would not be competent to transfer the property. The intention of the testator was found to be categorically putting a restriction on the estate created by him in favour of Jaswant Kaur. In these circumstances, it was held that provisions of Section 14 (1) of the Act would not apply and the estate acquired upon Jaswant Kaur would not be enlarged. The facts of this case also do not apply to the facts of the present case because in the present case there was no testamentary disposition of the property by Ujagar Singh in favour of Dhan Kaur rather he died intestate and the property in dispute devolved upon his son Malkiat Singh after whose death it came to Dhan Kaur without the creation of any instrument. As succession never remains in abeyance, right in the property in dispute vested in Dhan Kaur immediately after the death of Malkiat Singh and out of that big chunk, she retained only a small piece of land, which cannot be termed to be an acquisition of a right for the first time in order to attract the provisions of Section 14(2) of the Act. As far as the judgment relied upon by learned counsel for the respondents in the case of Bai Vajia (dead) by Lrs. (Supra) is concerned, wherein it was held by the Supreme Court that widow’s right to maintenance, though not an indefeasible right to property, is undoubtedly a pre-existing right. It was held that it cannot be said that where the property given to a widow in lieu of maintenance, it is given to her for the first time and not in lieu of a pre-existing right. The claim to maintenance as also the right to claim property in order to maintain herself is an inherent right conferred by Hindu Law and, therefore, any property given to her in lieu of maintenance is merely RSA No.2915 of 1984 (O&M) - 9 - in recognition of the claim or right which the widow possessed from before and it cannot be said that such a right has been conferred on her for the first time. This judgment is of a great assistance to this Court to hold that Dhan Kaur had not succeeded to the property for the first time by virtue of documents Ex.P-1 or Ex.P-2, which is allegedly to be a right acquired by her rather she had a pre- existing right in the property of her deceased husband or even the property left by her son so far as her maintenance is concerned which was not acquired by her by virtue of documents Ex.P1 & P-2. In the case of Smt. Kasturi Devi (Supra), it was held by the Supreme Court that a mother cannot be divested of her interest in the property on the ground of remarriage. The application of bar of inheritance to the Hindu widow is based on the special and peculiar, sacred and spiritual relationship of the wife and the husband. After the marriage, the wife becomes an absolute partner and an integral part of her husband and the principle on which she is excluded from inheritance on remarriage is that when she relinquishes her link with her husband even though he is dead and enters a new family, she is not entitled to retain the property inherited by her. It was held that it cannot be said with respect to a mother, who is altogether in a different position and as such the Hindu Law did not provide that even the mother would be disinherited if she is remarried. It is the case of the plaintiffs themselves that the property in dispute has devolved upon Dhan Kaur from her son Malkiat Singh and if it is to be taken to be the property owned by mother succeeding as heir to her son, the aforesaid judgment titled Smt. Kasturi Devi (Supra) would fully answer the question raised by learned counsel for the respondents to the effect that the remarriage of Dhan Kaur would hardly have any effect insofar as her right in the property in dispute is concerned. Thus, looking from any angle to the facts and circumstances of the case and the evidence brought on record, I have found that there is no error committed by the Courts below in dismissing the suit of the plaintiffs as there is no question of law much less substantial involved therein or in the present appeal, which is required to be decided by this Court in terms of Section 100 of the Code of Civil Procedure, 1908. Hence, the present appeal is dismissed though without any order as to costs. RSA No.2915 of 1984 (O&M) - 10 - (RAKESH KUMAR JAIN) MARCH 30, 2011 JUDGE Vivek