IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 221/1998 Reserved on:23.6.2010 Decided on: 24.7. 2010 ________________________________________________ Soma Devi. …Appellant. Versus Kanta Devi and others. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Ramakant Sharma, Advocate. For the Respondents :Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate for respondents No.1 to 5. None for respondents No.6 and 7. ________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal has been directed against the judgment and decree dated 8.4.1998 passed by the learned Additional District Judge, Una in Civil Appeal No.124/92, 213/94/92. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the predecessor-in-interest of respondents No.1 to 4 Sh. Sham Sunder (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for permanent injunction and in the alternative for possession of the land comprised in Khasra 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Nos. 4647, 4701 and 4742 kita 4 measruing 8 kanals 5 marlas situate in village Lohara Tehsil Amb, District Una against the appellant- defendant (hereinafter referred to as ‘the defendant’ for convenience sake). The suit was primarily filed on the ground that the suit land was owned by the plaintiff and other co-owners but was in the exclusive Hisadari possession of the plaintiff whereas the defendants were stranger to the suit land and had absolutely no right, title or interest in it either proprietary or possessory. The suit was contested by the defendants by filing joint written statement by taking preliminary objections, inter alia, that the suit was not maintainable in the form in which it was filed because the plaintiff was out of possession of the suit land and that the suit was bad for mis-joinder of parties. On merits, it was pleaded by the defendants that the suit land was previously owned by father-in-law of defendant Smt. Soma Devi, who was also the grand-father of plaintiff Sh. Sham Sunder. It was further averred that Lakhu (father-in-law of Soma Devi) alongwith husband of defendant No.1 Roshan Lal and father of the plaintiff Sh. Madan Lal formed a joint Hindu Family of which Lakhu was the Karta of the family and the property in the hands of Lakhu was joint Hindu Family and ancestral property. It was further pleaded that the husband of Soma Devi expired 36 years back prior to the filing of the written statement and after his death the suit land was given to her on account of maintenance and since then she was in continuous possession of the suit land and she has become absolute owner after coming into force the Hindu Succession Act, 1956. The trial court dismissed the suit on 20.6.1992. Plaintiff preferred an appeal before the learned Additional 3 District Judge, Una against the judgment and decree dated 20.6.1992. The learned Additional District Judge, Una allowed the appeal and decreed the suit on 8.4.1998. This Regular Second Appeal has been directed against the judgment and decree dated 8.4.1998. It was admitted on the following substantial questions of law: 1. “Whether the impugned judgment and decree is the result of complete misreading, mis-appreciation as well as misinterpretation of the provisions of section 14 sub-section (1) of the Hindu Succession Act? 2. Whether the learned lower appellate court is right in not dismissing the suit of the plaintiff especially when the plaintiff had failed before the revenue authorities and had admitted the possession of the appellant over the land in question before filing of the suit? 3. Whether the suit was maintainable in view of the provisions of section 57 of the H.P. Holdings (Consolidation of Holdings and Prevention of Fragmentation) Act, 1971 and the matter having been adjudicated upon by the authorities under the Act ibid?” 3. Mr. Ramakant Sharma has supported the judgment and decree of the learned trial court. He has confined his submission to substantial questions No. 1 and 2 during the course of arguments. 4. Mr. G.D. Verma has supported the judgment and decree passed by the learned Additional District Judge. 5. I have heard the learned counsel for the parties and perused the record carefully. 4 Substantial Question No. 1 and 2: 6. Since both the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 7. One Sh. Birju had three sons, namely, Lakhu, Purshotam and Lachhman. Lakhu was father-in-law of Soma Devi DW-1. He had two sons, namely, Roshan and Madan. DW-1 Soma Devi was married to Roshan. He died 40 years back. Plaintiff has appeared as PW-1. He has produced on record copy of jamabandi for the year 1979-80 Ex.P-1. According to Ex.P-1, the suit land has been recorded in joint ownership of plaintiff and number of other co-sharer whereas the suit land has been recorded in exclusive possession of the plaintiff in the capacity co-sharer. Plaintiff has also brought on record copy of Khasra Girdwari Ex.P-2 with effect from 12.10.1989 to 11.4.1990 in which the nature of the suit land has been shown as ‘Barani’ and the plaintiff has been shown in possession of the suit land. He has testified that he is owner of the suit land to the extent of 1/6th share and he was in exclusive possession of the suit land as co- sharer. According to him, defendants in connivance with the revenue staff were threatening to dispossess him from the suit land. In his cross-examination, he has deposed that an order was passed by the Tehsildar for correction of revenue record and he has preferred an appeal against the said order. However, the appeal was dismissed. He has also categorically admitted that the suit land is in ancestral in 5 nature. According to him, the suit land has been mutated in his favour on the basis of will executed by his father. 8. PW-2 Rasil Singh has testified that the plaintiff is in possession of the suit land whereas in his cross-examination, he has shown his ignorance about the subject matter of the suit. 9. Soma Devi appeared as DW-1. She has testified that her husband died 40 years back and thereafter her father-in-law, Lakhu, gave her suit land in lieu of maintenance and since then she is in continuous possession of the suit land. According to her, during the settlement operation, she came to know about the wrong revenue entries existing in favour of her father-in-law Lakhu and thereafter in favour of the plaintiff. She reiterated in her cross-examination that she was owner of the suit land and the same was given to her by her father-in-law by way of maintenance. 10. DW-2 Gulwant Singh has deposed that Soma Devi was in possession of the suit land and he also cultivated the land of Soma Devi. 11. Defendant Soma Devi has also produced copy of report of Field Kanungo dated 28.7.1990. Defendants have also produced copy of order dated 22.4.1991 passed by the AC-IInd Grade and copy of order passed by the Settlement Officer dated 2.11.1991 as Ex. D-2. According to Ex.D-1, Soma Devi was found in possession of the suit land. Plaintiff has preferred an appeal against the order passed by the AC-IInd Grade dated 22.4.1991, however, the appeal was dismissed by the Settlement Officer on 2.11.1991 vide Ex.D-2. Case of the plaintiff, in a nutshell, was that his grand-father had executed a valid 6 will in his favour and as such he has succeeded to whole estate of the deceased. Surprisingly, it was not the case pleaded by the plaintiff when he has filed the suit. The plea of the will has been taken by the plaintiff for the first time in his replication. The plaintiff has not proved the will and he has not given even the date of the will. He has not given the date when the mutation was attested in his favour on the basis of the will. In these circumstances, the finding recorded by the learned first appellate court that the plaintiff has succeeded to the estate on the basis of will is erroneous. Plaintiff in order to prove that he has succeeded on the basis of the will was required to plead in his plaint and thereafter he was also required to prove the will in accordance with law. It was not permissible for him to take this plea for the first time in his replication. 12. Mr. G.D. Verma has placed heavy reliance on Ex.P-1, i.e. copy of jamabandi for the year 1979-80. The plaintiff has also placed on record Ex.P-2, copy of Khasra Girdawari. Presumption of truth is not attached to the entries made in the Khasra Girdawari. According to Ex.D-1, proved by defendant Soma Devi, the suit land was found in her possession. This order was passed by AC-IInd Grade on 22.4.1991. The plaintiff has filed appeal against the order dated 22.4.1991 before the Settlement Officer, however, the same was dismissed on 2.11.1991. In view of this, defendants have rebutted the entries made in Ex.P-1. Learned First Appellate Court has also come to a conclusion that in view of the evidence on record, the plaintiff has been able to prove that he was co-owner of the suit land, but the possession appears to be with defendant No.1 Soma 7 Devi. However, according to him, she has failed to prove the status over the suit land. The learned First Appellate Court while recording finding that Soma Devi has failed to prove her status has completely ignored her statement as DW-1. She has categorically deposed that the land was given to her by her father-in-law towards maintenance 40 years back when her husband expired. The land has been given to her by her father-in-law being Karta for maintenance. Plaintiff has admitted that the suit property was ancestral. The First Appellate Court has come to a wrong conclusion by holding that the suit property was not given to defendant Soma Devi in lieu of maintenance. This finding is erroneous and liable to be set aside. It is apparent from the conjoint reading of Ex.D-1 and D-2 and testimony of DW-1 that the land was granted to her in lieu of maintenance by her father-in-law. 13. Now, the Court will advert whether the defendant had become the absolute owner of the suit land as per the Hindu Succession Act. 14. Their Lordships of the Hon’ble Supreme Court in Raghubar Singh and others versus Gulab Singh and others, (1998) 6 SCC 314 have held that the right to maintenance of a Hindu female flows from the social and temporal relationship between the husband and the wife and that right in the case of a widow is “a pre- existing right”, which existed under the Shastric Hindu law long before the passing of the 1937 of the 1946 Act. Their Lordships have further held that by force of section 14 (1) of the Act, widow’s limited interest gets automatically enlarged into an absolute right notwithstanding any 8 restriction placed under the document or the instrument. Their Lordships have held as under: “24. Accordingly, we hold that the right to maintenance of a Hindu female flows from the social and temporal relationship between the husband and the wife and that right in the case f a widow is "a pre-existing right", which existed under the Shastric Hindu Law long before the passing of the 1937 or the 1946 Acts. Those acts merely recognised the position as was existing under the Shastric Hindu Law and gave it a "statutory" backing. Where a Hindu widow is in possession of the property of her husband, she has a right to be maintained out of it and she is entitled to retain the possession of that property in lieu of her right to maintenance. 26. It is by force of Section 14(1) of the Act, that the widow's limited interest gets automatically enlarged into an absolute right notwithstanding any restriction placed under the document or the instrument. So far as sub-section (2) of Section 14 is concerned, it applies to instruments, decrees, awards, gifts etc., which create an independent or a new title in favour of the female for the first time. It has no application to cases where the instrument/document either declares or recognises or confirms her share in the property or her "pre-existing right to maintenance" out of that property. As held in Tulasamma's case (supra), 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) of the Act. 30. The impugned judgment of the learned single judge of the High court suffers from a misconception about the nature of the "pre-existing right" of a Hindu widow. The opinion of the learned single that there could be no “pre-existing right" vesting in Smt. Janak Dulari because of the non-applicability of the 1937 Act in Rewa State is clearly erroneous. Her right to maintenance existed under the Shastric Hindu Law and 9 was not created by the 1937 or 1946 Acts. Those Acts merely gave statutory backing to her existing rights.” 15. Their Lordships of the Hon’ble Supreme Court in Palchuri Hanumayuamma (Smt) versus Tadikamalla Kotlingam (Dead) by LRs. and others, (2001) 8 SCC 552 have held that though the testator has not used the word in lieu of maintenance, he intended that the properties settled under the will were left for the enjoyment of Ramamma during her life time towards maintenance by virtue of section 14 (1) of the Hindu Succession Act, 1956 the estate of Ramamma got enlarged making her the absolute owner of the property. Their Lordships have held as under: “7. We have heard the parties in extenso and, in our opinion, the entire issue involved in this case depends upon the nature of bequeath made by the testator, to be gathered from the recitals of the Will dated 19.3.1929 as also the Codicil referred to hereinabove. A perusal of the Will shows that the testator had desired that after his death, Ramamma should take possession of all his movable and immovable properties and she should be the guardian of her minor daughters till they attain majority. It is relevant to note at this stage that the testator has not desired that the share in his property should be conveyed or transferred to his daughters on their attaining majority. On the contrary, the recital proceeds to say that Ramamma shall enjoy all the movables and immovable properties till her death without making alienations, and after her death his eldest daughter shall take two shares in Item No.1 of the schedule to the Will; her husband would take one share therein and second item in the schedule should be taken by the second daughter (appellants mother) and, similarly, the third daughter was also provided for. The Will also provided for the family expenses to be incurred in the marriages of the daughters and the amounts to be paid to them at the time of their marriage. The recitals in the said Will also show at more than one place that the testator had desired 10 that Ramamma should enjoy the property during her life-time and it is only after her death that he had desired that the property be divided and handed over to the three daughters in the manner stated therein. Thus, it is clear from the recitals that though the testator has not used the words in lieu of maintenance, he has certainly intended that the properties settled under the Will were left for the enjoyment of Ramamma during her life-time towards her maintenance. The fact that Ramamma was made a guardian of the minors would not in any manner deviate from the fact that the property under the Will was given to Ramamma for her enjoyment in lieu of her maintenance. The wording My wife, Ramamma shall enjoy all my moveable and immoveable properties till her death clearly shows that no arrangement was made by the testator for vesting of the properties in his daughters. It is only after the death of said Ramamma that he had desired that the property should be divided equally amongst his three daughters but then, as things would have it, before the property could be said to have vested in the mother of the appellant, two circumstances intervened. Firstly, in the year 1944 itself, the appellants mother died, and secondly by virtue of enactment of Section 14(1) of the Act in the year 1956, the estate of Ramamma got enlarged making her as the absolute owner of the property. The fact that Ramamma settled the properties almost in similar terms as those stated in the Will by the Settlement Deed of 1952 also, will not in any manner affect the operation of Section 14(1) of the Act and that part of the share retained by Ramamma which having continued to be in her possession as the property given to her in lieu of maintenance enlarged into her absolute estate on the coming into force of the 1956 Act. 8. Mr. Nagaraja next contended that from the conduct of Ramamma it is clear that she herself understood the intention of her husband to be that he wanted his properties to be divided amongst his 3 daughters and she was only to manage the said property for and on behalf of the said daughters till her life time. In support of this contention, he relied on certain circumstances which, according to him, show the intention of the testator as well as how Ramamma herself understood the Will. Firstly, he 11 submitted that the Will in question had demarcated specific shares to be allotted to the three daughters after the death of Ramamma. It is pursuant to this desire of the testator that Ramamma entered into a settlement in the year 1952 and thereafter a Partition Deed in the year 1955 according to which Ramamma allotted the very same properties to two of her daughters as was earmarked for them in the Will while retaining the share earmarked for appellants mother with herself. He also relied upon an averment made by Ramamma in her written statement filed in an earlier proceeding marked in the present suit as Ex. A-6 wherein she had stated: This defendant retained with her at the request of the plaintiff all the items as per the Will and the partitioned joint properties as per the deed dated 24.9.1955 to which the plaintiff is entitled to 1/3rd share after the death of this defendant as per the above document. From the above circumstances, it is contended that even Ramamma understood the Will to mean that she was only to manage the property for and on behalf of her daughters. Therefore, since the appellants mothers share was specifically earmarked by the testator, on the death of Ramamma the same would have reverted to the appellants mother if she were to be alive and since she is not alive, the appellant being the sole heir she is entitled to the said share.” 16. Their Lordships of the Hon’ble Supreme Court in Chandrika Singh (dead) by LRs. and another, (2006) 12 SCC 49 have held that section 14 (1) will be attracted once it was found that Koleshra Devi was possessed of the land in question in lieu of her right of maintenance and in these circumstances sub-section (1) of section 14 of the Hindu Succession Act, 1956 will be attracted. Their Lordships have held as under: “13. Once it was found that Koleshra Devi was possessed of the land in question in lieu of her right of maintenance, in our opinion, Sub-Section 1 of Section 14 of the Hindu Succession Act, 1956 will clearly be attracted. 12 14. In Raghubar Singh and Ors. v. Gulab Singh & Ors., [1998] 6 SCC 314 this Court stated the law in the following terms: "17. The obligations, under the Shastric Hindu Law, to maintain a Hindu widow out of the properties of her deceased husband received a statutory recognition with the coming into force of the Hindu Women's Rights to Property Act, 1937. the law on the subject was, thereafter, consolidated and codified by the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 which came into force on 23.4.1946. The right to maintenance of the Hindu widow, as a Pre-existing right, was thus recognised by the two statutes referred to above but it was not created for the first time by any of those statutes. Her right to maintenance exited under the Shastric Hindu law long before statutory enactments came into force. After the attainment of independence, the need for emancipation of women from feudal bondage because even more imperative. There was growing agitation by Hindu women for enlargement of their rights as provided by the Shastric Hindu law in various spheres. It was at this juncture that Parliament stepped in and enacted various statutes like the Hindu Marriage Act, 1956 the Hindu Adoption and Maintenance Act, 1956 and the Hindu Succession Act, 1956 providing for intestate succession. 18. The Hindu Succession Act, 1936 made far- reaching charges in the structure of Hindu law by removing the traditional limitations on the powers of a Hindu widow to deal with the property of her deceased husband in her possession in lieu of her right to maintenance and the Act made her an absolute owner of the property, over which hitherto fore, she had only a limited right." 16. In Shakuntala Devi v. Kamla and Ors., [2005] 5 SCC 390] it was observed : "11. However, the decision of this Court in the case of Balwant Singh, [1997] 7 SCC 137 would have a 13 bearing on the merits of this case wherein it is held that suit for possession would not be maintainable on the basis of a declaratory decree as the declaratory decree did not convey any title in favour of the reversioners. This was a case under the Hindu Law wherein the widow of the original owner in the year 1954 made a gift and got the land mutated in favour of her adopted sons. The reversioners filed a suit seeking a decree that the alienation made by the widow was not binding on their reversionery rights. The suit was decreed and it was held that the gift made by the widow would not affect the rights of the reversioners. The property was remutated in the name of the widow. In the year 1970, the widow again gifted the suit property to the adopted sons and she died in the year 1973. In a suit for recovery of possession by the reversioners on the basis of the earlier decree, the court held that since the widow continued to be in possession of the property even after the declaratory decree obtained by the reversioners because of the enlarged rights she got under the Hindu Succession Act, 1956 which made her the absolute owner of the property, the gifts of the property made by her to her adopted sons in the year 1970 could not be set aside. 12. Almost similar are 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 title independent of the declaratory decree obtained by them." 17. Their Lordships of the Hon’ble Supreme Court in Gangamma and others versus G. Nagarathnamma and others, 14 (2009) 15