1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Inder Chand through vs. Smt. Jethi & ors. his legal representatives S.B.Civil Second Appeal No.31/1982 against the judgment and decree dated 24.11.1981 passed by District Judge,Bikaner in Civil appeal(Decree) No.18/1971. Date of Judgment: February 27, 2006. PRESENT HON'BLE MR. PRAKASH TATIA,J. Mr.Manish Shishodia for the appellants. Mr. L.M. Lodha & Mr. M.K. Dudy,for the respondents. REPORTABLE BY THE COURT: Arguments heard. This appeal is arising out of the judgment and decree passed by the trial court dated 20.8.1971 and upheld by the first appellate court by the judgment and decree dated 24.11.1981. The trial court decreed the suit of the plaintiff on different grounds than the grounds on which the first appellate court decreed the suit. The first appellate court also declared the share of the plaintiff as 1/3 in the suit property instead of 4/9 as declared by the trial court. Brief facts of the case are that the property in dispute, situated in the city of Bikaner, was belonging to one Ganga Das and Mool Chand. 2 Ganga Das had 2/3 share whereas Mool Chand had 1/3 share in the suit property. Ganga Das had four sons,Moti Lal, Raman Lal, Shanker Lal and Shiv Ratan. Shiv Ratan died in the year 1931 leaving behind his widow Smt.Jethi, who is the plaintiff. Moti Lal and Raman Lal separated from Ganga Das in the year 1937. Shanker Lal s/o Ganga Das and Smt.Jethi widow of predeceased son of Ganga Das, were living together in the house in dispute. As per the old law, according to Ganga Das, Smt. Jethi plaintiff had only right of maintenance. Ganga Das in his life time, executed a Tamliknama on 18.1.1955 in favour of his son Shanker Lal and gave his 2/3 share in the property in dispute to said Shanker Lal. The copy of the Tamliknama is placed on record as Ex.A.5. This document is not in dispute. Ganga Das died in the year 1961 and on 18.10.1966 said Shanker Lal sold the entire house to the defendant- appellant Laxmi Chand by registered sale-deed. Plaintiff Smt.Jethi, daughter-in-law of deceased Ganga Das filed this present suit for pre- emption on the ground that she is co-sharer in the house in dispute, therefore, has prior right to purchase the share in house which has been sold by said Shanker Lal to Laxmi Chand under the Rajasthan Preemption Act. The suit was contested by only the purchaser present-appellant defendant Laxmi Chand on various grounds including the ground of collusion between the plaintiff and other defendants, namely, with 3 Shanker Lal and Raman Lal. The case of the plaintiff Smt.Jethi was that Ganga Das had 2/3 share and by devolution of interest upon Ganga Das after the death of Mool Chand, Ganga Das became the owner of the entire house. The plaintiff pleaded that she being heir of Ganga Das being widow of Ganga Das's son Shiv Ratan, she got 1/3 share in the entire house after the death of Ganga Das as in the strip of her husband she was theonly successor to the share of her husband. The defendant's contention is that the entire house was belonging to Shanker Lal and the plaintiff is not co-sharer in the suit property. Therefore, the plaintiff has no right to claim the property by pre-emption. The defendant- appellant submitted that in fact the plaintiff separated herself from the family of Ganga Das and the property was given by Ganga Das to Shanker Lal by registered dated 18.1.1955 which was registered on 20.1.1955. The possession Tamliknama was given to Shanker Lal and he started living in the house as absolute owner of the house since then. The defendant-appellant also denied that there was share of Mool Chand in the property and it devolved upon Ganga Das and specifically pleaded that Mool Chand has no share in the suit property. It is also pleaded that Shanker Lal became owner of the property by adverse possession, therefore, also there arises no question of Mool Chand's share in the property at the time of alienation by said Shanker Lal and it could not have inherited even by Ganga Das. The defendant purchaser submitted 4 that Ganga Das was not legal heir or successor of Mool Chand. However, it will be worthwhile to mention here that the defendant did not disclose any other heir of Mool Chand in the written statement. Several issues were framed but for the purpose of deciding this appeal it will be sufficient to notice that the trial court while deciding issue no.11, held that the defendant no.3-appellant-purchaser failed to prove execution of Tamliknama and, therefore, failed to prove that Shanker Lal got 2/3 share of Ganga Das in the suit property. The trial court also held that the defendant failed to prove that Shanker Lal became owner of the property by adverse possession obviously of the share of Mool Chand. The trial court also held that the plaintiff has inherited 4/9 share in the house of Ganga Das and, therefore, she is co- sharer in the suit property and, therefore, she is entitled to maintain the suit for pre-emption. The trial court also held that Mool Chand died in the year 1959 and not before coming into force of the Hindu Succession Act, 1956. And after the death of Mool Chand in the year 1959, the share of Mool Chand devolved upon Ganga Das. With these findings, the trial court decreed the suit of the plaintiff and directed the plaintiff to deposit Rs.4500/- in the court, upon which she will be entitled to conveyance in her favour in the house property which was sold to the appellant-defendant. The judgment and decree dated 21.8.1971 of the trial court was 5 challenged by the defendant-purchaser present appellant. The first appellate court in its judgment dated 24.11.1981 held that the plaintiff, who was having right of maintenance from deceased Ganga Das, became owner of the property by virtue of Section 14 of the Hindu Succession Act and thereby became co-sharer in the property which was sold to appellant by Shanker Lal. The first appellate court even after considering one application (Ex.A6) submitted for obtaining the succession certificate in the properties of Mool Chand wherein pedigree of Mool Chand as well as Ganga Das was given, held that after the death of Mool Chand, Ganga Das alone succeeded to the share of Mool Chand in the property. All other grounds of the appellant-defendant were rejected by the first appellate court. The first appellate court in view of the findings recorded by it, different that as recorded by the trial court about the share, declared the plaintiff as owner of 1/3 share and held that the plaintiff is entitled to have conveyance in her favour for remaining 2/3 share from the defendant on payment of Rs.5334/-. Both the courts below also grated decree for possession of the suit property. Aggrieved against the judgment and decree of the trial court dated 21.8.1971 and dismissal of the appeal by the appellate court on 24.11.1981, the defendant-purchaser of the property has preferred this second appeal. Following substantial questions of law were framed by this Court 6 while admitting the appeal on 8.3.1982:- “(i) Whether the first appellate court was right in holding that the share of Ganga Das could not be gifted by him to Shanker Lal in view of the fact that Smt. Jethi was predeceased son's wife of Ganga Das and had a right of maintenance ? (ii) Whether the right of Smt. Jethi as a maintenance holder would invalidate the gift made by Gangadas in favour of Shanker Lal ? (iii) Whether the right of preemption in respect of a part of the property sold and on payment of a part of the price could have been recognised by the court. (iv) Whether the first appellate court was right in holding that Smt. Jethi being a maintenance holder, became the full owner of the property of Ganga Das to the extent of 1/3rd share under Section 14 of the Hindu Succession Act ? The arguments at length were heard and thereafter this Court found that one more question arises in the appeal which was also framed by this Court on 24.2.2006, which is as under:- “Whether the finding of the court that Ganga Das is sole heir of the deceased Mool Chand inheritage his 1/3 share in the house is bad in law, is based on no evidence.” 7 According to the learned counsel for the appellant, both the courts below committed serious error of law in holding that the plaintiff possessed the property in dispute in lieu of maintenance and became absolute owner of the property by virtue of Section 14 of the Hindu Succession Act, 1956. It is vehemently submitted that mere having right of maintenance itself is not sufficient for fructifying the title in the property. Not only this even right of maintenance coupled with mere possession without there being intention to reserve the property that the female heir's limited right cannot be converted into full ownership right. The learned counsel for the appellant heavily relied upon the judgment of the Hon'ble Apex Court delivered in the case of Ram Vishal (Dead) By LRs. and others vs. Jagan Nath and another ( (2004) 9 SCC 302) wherein Hon'ble the Apex Court held that said female must not only be possessed of the property but a pre-existing right is a sine qua non for conferment of a full ownership under Sec. 14 of the Act of 1956. A mere right of maintenance without actual acquisition in any manner, not sufficient to attract Sec.14. Hon'ble Apex Court also held that in absence of anything to show that the widow had got possession of share in the joint family property in lieu of maintenance or in arrears of maintenance or that there was a partition of the property and that in such partition, she had been given the property, the widow had no right at all which could fructify into full ownership under Section 14. 8 According to the learned counsel for the appellant, in present case, the plaintiff did not appear in the witness-box initially to prove her case and she has not proved that the property was given to her in lieu of maintenance nor it was the case pleaded at all, therefore, the plaintiff has not become the owner of the property even by the help of Section 14 of the Act of 1956. It is also submitted that in fact the suit was filed collusively which is apparent from the statement of the plaintiff where she clearly stated that none else than the seller Shanker Lal himself was looking after the interest of the plaintiff and was taking care for the present suit also. According to the learned counsel for the appellant, Shanker Lal became owner of the property by adverse possession of the share of Mool Chand and got the property from Ganga Das by Tamliknama in the year 1955. Said Tamliknama was never challenged by plaintiff Smt.Jethi at any point of time, therefore, in all probabilities, it can be inferred that Shanker Lal was absolute owner of the property and he sold the property by exercising his right of ownership. In the alternate, it is submitted that the plaintiff herself failed to prove her case so far as devolution of interest of the property of Mool Chand upon Ganga Das. For that purpose, there is no evidence, even for the name shake. Therefore, it is a case of no evidence. The net result is that 2/3 property was belonging to Ganga Das and neither the property 9 nor any share in the property was given to the plaintiff in lieu of maintenance, therefore, she could not have become the owner of the property even with the help of Section 14 of the Act of 1956 as the said provisions cannot be invoked where the plaintiff is not fulfilling the requirements for becoming the owner of the property on the ground of claim of maintenance. In view of the above, the plaintiff cannot claim any share so far as 2/3 share of deceased Ganga Das is concerned in the property which was given out to Shanker Lal. So far as remaining 1/3 share which the plaintiff claimed was of Mool Chand and was denied by the defendant, there is no evidence that Ganga Das was the only heir of Mool Chand and succeeded to the share of Mool Chand. The learned counsel for the appellant also submitted that the plaintiff sought partial pre-emption only which is not permissible under the law. For this the learned counsel for the appellant vehemently submitted that in the plaint the plaintiff pleaded that she is entitled to pre-empt the sale to the extent of the share only and she did not claim that after payment of share of other co-sharer to the seller, her name may be substituted in the sale-deed executed by Shanker Lal in favour of purchaser- Laxmi Chand. The learned counsel for the respondent-plaintiff vehemently submitted that though the substantial questions of law are framed in the present appeal but in fact they do not arise in this appeal in view of the 10 plain and simple facts of the case. According to the learned counsel for the respondent-plaintiff,the defendant-appellant cannot disown Tamliknama as that is the alleged title deed of appellant's predecessor from whom he purchased the property. In the Tamliknama, Ganga Das predecessor in title, unequivocally stated that he had 2/3 share in the suit property and nor more. He repeatedly mentioned this fact in the Tamliknama dated 18.1.1955 and clearly mentioned that he is alienating/transferring the property in favour of Shanker Lal to the extent of his share and which is 2/3 share in the entire property. Admittedly, Mool Chand was alive in the year 1955 and died in the year 1959 and he had 1/3 share in the suit property. Therefore, on the date when Tamliknama was executed even entire property which could have been passed on to Shanker Lal, then that was only to the extent of 2/3 share in the property and not more. So far as share of Mool Chand is concerned, that also stands fully proved from various cogent reasons given by the first appellate court in detail and finds support from the judicial proceedings in view of the fact that the suit for partition of the properties was filed by Mool Chand (C.O. No.81/1944), wherein preliminary decree was passed declaring Mool Chand's share as 1/3. It appears that said decree was not carried forward for obtaining the final decree for partition of the suit property. That fact only proves that partition was claimed but the property was never partitioned. In this 11 property Ganga Das had 2/3 share on 18.1.1955 is admitted case of the Ganga Das, therefore, persons claiming property through Ganga Das cannot dispute this fact and fact that Ganga Das was not owner of 1/3 share in the propertyin dispute. It has been held by the courts below that Mool Chand died after 1956, i.e. After coming into force the Hindu Succession Act, 1956.Devolution of property of MoolChand could be only after 1956 and in accordance with the provisions of Hindu Succession Act, 1956 only. But according to the learned counsel for the respondent- plaintiff, that fact only discloses that Mool Chand had 1/3 share in the suit property and Ganga Das admitted his share to the extent of 2/3 as back as on 18.1.1955. According to the learned counsel for the respondent, acquisition of 1/3 share of Mool Chand by Ganga Das can only be in the year 1959 because Mool Chand died in the year 1959 and that is subsequent to Tamliknama dated 18.1.1955 otherwise Ganga Das would have written the fact in the Tamliknama itself that he was owner of 2/3 share in the suit property and became owner of 1/3 share of Mool Chand by virtue of otherwise than devolution of the property due to death of Mool Chand. Ganga Das could also have claimed ownership by adverse possession in the suit property for the share of Mool Chand. In view of the above even if the plaintiff did not appear in the witness-box to prove acquisition of 1/3 share of Mool Chand by Ganga Dass even then sufficient evidence is available on record which 12 proves beyond doubt that Ganga Das acquired 1/3 share in the suit property as successor of Mool Chand after 18.1.1955 and that share has could not have not been transferred to Shanker Lal by Ganga Das on 18.1.1955. Ganga Das died in the year 1961 intestate, therefore, the plaintiff being daughter-in-law, widow of predeceased son of Ganga Das also got the share in the property which devolved upon Ganga Das before his death and that is share of Mool Chand in the property. The learned counsel for the respondent-plaintiff tried to distinguish the judgment relied upon by the learned counsel for the appellant and empathetically submitted that the judgment delivered in the case of Ram Vishal vs. Jagan Nath ( (2004) 9 SCC 302) has no application to the facts of this case and cannot help the appellant- defendant purchaser in view of the fact that firstly, the plaintiff admittedly had a right of maintenance. The right of maintenance of the plaintiff has been admitted by Ganga Das himself in the Tamliknama . Ganga Das's successor and even transferee of Ganga Das's properties, cannot claim such right in view of admission of Ganga Das in Tamliknama.The right of maintenance culminates into the full ownership right even when property is disposed of and reaches in the hands of the transferor. In this case, even after execution of Tamliknama dated 18.1.1955, the property remained in the hands of none else than the family members of the plaintiff and deceased Ganga 13 Das himself and it is no body's case that any other provision was made for the maintenance of the plaintiff. The learned counsel for the respondents also submitted that the purpose for mentioning of right of maintenance in the Tamliknama can be construed to mean that the property was given to one of the family members but with reserving the plaintiff's right to get maintenance. Therefore, she fulfills all conditions of Section 14 as required in the light of the decision of the Hon'ble Apex Court in the case of Ram Vishal(supra). Otherwise also, in case even if it is held that the plaintiff was not fulfilling all the requirements of acquiring absolute ownership in the property of Ganga Das, being maintenance holder, even then the plaintiff's suit for preemption on the basis of the succeeding to share of Mool Chand, she became co-owner of the property with Shanker Lal and is entitled to seek preemption. I considered the submissions of the learned counsel for the parties and perused the record and the judgments cited by the learned counsel for the parties. In case where pre-emption is sought on the basis of being co- sharer in the suit property, the plaintiff is required to prove his/her share in the property. If there is share, irrespective of its extent or quantum, the plaintiff becomes entitled to purchase the property provided case is made out under Section 11 of the Rajasthan Pre- emption Act, 1966, after paying the consideration to the extent of 14 share which has been sold to the purchaser by other co-sharer. Therefore, there is core question which goes to the root of the matter is whether the plaintiff had any share in the property as on the date 18.10.1966 when the property was sold by the plaintiff's alleged co- sharer ? To find out whether the plaintiff had any share in the property sold by Shanker Lal, one of the co-descendant of Ganga Das, the plea of the plaintiff is that the plaintiff and defendants no.1 and 2's ancestor Ganga Das had 2/3 share in house in dispute and one Mool Chand had 1/3 share. Mool Chand died on 31.7.1959 at Bombay and Mool Chand's 1/3 share devolved upon Ganga Das. This is not disputed that Ganga Das had four sons, Shiv Ratan, Moti Lal, Raman Lal and Shanker Lal. Ganga Das's son Shiv Ratan died in the year 1931 and the plaintiff is widow of Ganga Da's deceased son Shiv Ratan. Moti Lal and Raman Lal separated from Ganga Das in the year 1935. Therefore, according to plaintiff, after the death of Ganga Das on 20.1.1961, entire house devolved upon plaintiff, being widow of predeceased son of Ganga Das and upon two sons of Ganga Das, Raman Lal and Shanker Lal each having 1/3 share. It will be relevant to mention here that Ganga Das in his life time executed a gift deed Tamliknama dated 18.1.1955 and gifted his property to Shanker Lal. Dispute arose when Ganga Das's son Shanker Lal sold the property 15 in dispute on 18.10.1966 to appellant-defendant No.3 Laxmi Chand on assumption that he (Shanker Lal) became sole owner of Ganga Das's property by Tamliknama (gift deed) dated 18.1.1955. The plaintiff when came to know about the said sale dated 18.10.1966 by Shanker Lal to appellant Laxmi Chand, she filed present suit claiming that her share in the suit property be declared to be 1/3 and she has right to purchase the property under her right of pre-emption and to get her name substituted in the sale-deed as transferee in place of original transferee appellant Laxmi Chand. Said is the relief which can be granted in suit on the basis of right of pre-emption under the Rajasthan Pre-emption Act, 1966. The suit was contested only be defendant no.3 purchaser from the said Shanker Lal defendant no.2. Ganga Das's other son Raman Lal though was defendant in the suit, did not contest the suit but appeared as witness of the plaintiff. It was pleaded by the defendant no.3 appellant in his written statement that entire house property was of Ganga Das alone and he gifted it to his son Shanker Lal defendant no.2. Vaguely it has also been pleaded that Mool Chand had no share in the suit property and if said Mool Chand had any share in the suit property, defendant Shanker Lal became owner of share of Mool Chand by adverse possession. it will be proper to look into the sale-deed dated 18.10.1966 16 executed by Shanker Lal s/o deceased Ganga Das in favour of the present appellant-defendant Indra Chand. The present appellant being successor in interest and claiming title through Shanker Lal, therefore, he is bound by the admission made by Shanker Lal in the sale-deed dated 18.10.1966 with respect to the fact how Shanker Lal himself became owner of the property. In the sale-deed dated 18.10.1966, copy of which is available on record, it is clear that Shanker Lal admitted that the property is covered by the Patta of Samvat Year 1962 and came in the share of Ganga Das by virtue of partition dated 1.3.1937. There is reference of one Tamliknama dated 1.3.1937 by which it appears Ganga Das's sons Moti Lal and Raman Lal separated from Ganga Das.(This fact was admitted by Ganga Das in his Tamliknama dated 18.1.1955 Ex.5). The property, which was subject matter in the sale-deed dated 18.10.1966 has been described as ancestral property of Shanker Lal. It is also admitted in the said sale-deed dated 18.10.1966 by Shanker Lal that he became owner of the entire house as his father Ganga Das gave the house to him by registered gift deed (Tamliknama) dated 18.1.1955. Contrary to stand of defendants about Ganga Das being sole owner of entire home, in the Tamliknama dated 18.1.1955 deceased Ganga Das admitted that his share in the suit property is only 2/3 and he (Ganga Das) gave this 2/3 share in the property to his son Shanker Lal. Therefore, in view of the Tamlikname dated 18.1.1955