IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 245 of 2000. Decided on : 28.5.2010. Lala Ram …Appellant. Versus Rattan Chand ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Appellant : Mr. K.D.Sood, Advocate with Mr. Naresh Sharma, Advocate. For the Respondents : Mr. G.C.Gupta, Senior Advocate with Mr. Pawan Sharma, Advocate. Kuldip Singh, Judge (Oral) The defendant has filed the appeal against judgment, decree dated 10.3.2000 passed by the learned District Judge, Hamirpur in Civil Appeal No. 10 of 1992 affirming judgment, decree dated 2.1.1992 passed by the learned Senior Sub Judge, Hamirpur in Civil Suit No. 349 of 1973. 2. The facts, in brief, are that land more specifically described in the plaint to the extent of half share was recorded in the ownership of Bohri widow of Darshanu in the revenue record vide jamabandi for the year 1968-69. The respondent is brother’s son of Bohri, who died issueless on 4.4.1972. It is also the case of the respondent that Bohri had executed a registered will on 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes. 2 13.8.1965 in favour of respondent. Bohri had gifted the entire property owned by her situated at Tika Bhukkar alongwith the suit land situated in Tika Neri in favour of respondent on 3.12.1969 and thus the respondent became owner of the suit land. The mutation No. 521 in respect of land situate at Tika Bhukkar and mutation No. 230 in respect of the land situate in Tika Neri was entered. The gift dated 3.12.1969 was admitted in presence of revenue officer on 20.1.1970. The appellant raised objection that he had paid the loan of the husband of Bohri and therefore, mutation should not be sanctioned. Bohri also raised some objection at the instance of appellant but ultimately the matter was compromised between respondent and Bohri to the effect that mutation of land situated in Tika Bukkar should be sanctioned and the suit land situated in Tika Neri be given to Bohri for maintenance. In these circumstances, the mutation with respect to the land situate in Tika Neri was left. It was agreed that Bohri will continue to maintain herself from the suit land. 3. The further case of the respondent is that by virtue of gift deed he had become owner of the suit land. The suit land which was given to Bohri for her maintenance during her life time has reverted back to respondent after the death of Bohri as per recitals in the gift deed. The alternative case of the respondent is that he is entitled to inherit the suit land on the basis of will of Bohri executed by her in his favour. It has also been alleged that mutation in favour of respondent on the basis of gift deed had been sanctioned. The appellant at the time of attestation of mutation raised objection that Bohri had executed a will in his favour. In fact 3 Bohri had not executed any will in favour of the appellant. The mutation of suit land attested in favour of appellant regarding the estate of Bohri is wrong and not binding on the respondent. Bohri had already gifted the suit land to respondent, therefore, there is no question of appellant acquiring the title of the suit land on the basis of will of Bohri. 4. The further case of the respondent is that in suit No.110/1972-175/1978 decided on 30.11.1982 the gift of Bohri in favour of respondent has been found to be valid and therefore, question of gift is resjudicata in the present proceedings. 5. The appellant contested the suit and took several preliminary objections such as cause of action, maintainability, respondent is not owner of the suit land, estoppel and valuation. The appellant has become owner of the suit land by way of adverse possession. On merits, the appellant has denied the case set up by respondent and has pleaded that Bohri had executed a will in favour of the appellant. The respondent filed replication to the written statement and re-asserted his case and denied the case set up by the appellant. 6. On the pleadings of the parties the following issues were framed:- 1. Whether Smt. Bohri Devi had executed a will dated 13.8.1965 in favour of plaintiff as alleged, if so, its effect? OPP 2. Whether Smt. Bohri Devi had executed gift dated 3.12.1969 in favour of plaintiff as alleged, if so, its effect? OPP 3. Whether the suit is barred by the principle of res-judicata as alleged? OPP 4. Whether the suit is not maintainable and the plaintiff has no cause of action as alleged? OPD 4 5. Whether the defendant has become owner of the suit land by way of adverse possession as alleged ? OPD 6. Whether the suit is not properly valued for the purposes of court fee and jurisdiction ? OPD 7. Whether the plaintiff is estopped from filing this suit by his act and conduct as alleged? OPD. 8. Relief. The issue No.1 was held accordingly, issues No. 2 and 3 in affirmative, issues No. 4 to 7 in negative and the suit was decreed by the learned Senior Sub Judge, Hamirpur on 2.1.1992. In appeal the learned District Judge on 10.3.2000 has affirmed the judgment, decree dated 2.1.1992 of the trial Court. The second appeal has been filed by the appellant which has been admitted on the following substantial questions of law:- 1. Whether on proper construction of the provisions of the Hindu Succession Act, Section 14(1) applies to the facts of this case and Bohri Devi who was in possession of the land in village Neri given to her in lieu of pre-existing right of maintenance notwithstanding the gift made by her, became full owner of the property and was entitled to make a will of the same in favour of the appellant. 2. Whether the findings of the court below are based on misreading and misconstruction of the pleadings of the parties and the basic document of title Ext.PW-1/A, will dated 13.8.65, Ext.PW-1/C gift deed dated 3.12.1969, will dated 5.2.1972 executed by Bohri in favour of the appellant and the judgment and decree Exts. P-1 and P-2. 3. Whether on a proper construction of the judgment and decree Exts. P-1 and P-2, even if the gift was not a 5 conditional gift, the possession of Smt. Bohri being in lieu of maintenance, she became full owner by virtue of Section 14 of the Hindu Succession Act and the findings that judgment and decree Exts. P-1 and P-2 operated as res-judicata is sustainable in law. 4. Whether the suit of the plaintiff was within limitation and the inference drawn from the oral and documentary evidence is sustainable in law. 7. I have heard Mr. K.D.Sood, Advocate, learned counsel for the appellant and Mr. G.C.Gupta, Senior Advocate, learned counsel appearing on behalf of the respondent and I have also gone through the record. The learned counsel for the appellant has submitted that the learned District Judge has not properly construed Section 14(1) of the Hindu Succession Act, 1956 (for short ‘Act’). The court below has misconstrued and misinterpreted Ex.PW-1/A will dated 13.8.1965, Ex.PW-1/C gift deed dated 3.12.1969, will dated 5.2.1972 of Bohri in favour of appellant. It has also been submitted that judgment and decree Ex.P-1 and Ex.P-2 have not been properly appreciated. The suit of the respondent was not within limitation. The learned Senior Advocate appearing on behalf of the respondent has supported the impugned judgment, decree and has submitted that the dispute between the parties has been settled by the judgment and decree Ex.P-1 and Ex.P-2 in which it has been held that Bohri had executed valid gift dated 3.12.1969 in favour of the respondent. He has submitted that Section 14 (1) of the Act is not applicable in the present case inasmuch as what emerges from the material on record is that at the 6 most the maintenance right was first time created when the land was given to Bohri. It was not pre-existing right. 8. The substantial questions of law No.1 to 4 are inter- connected, therefore, all of them are being taken up for consideration collectively. Bohri had filed civil suit No. 110/1972- 175/1978 against respondent herein in which she had challenged the gift deed dated 3.12.1969 on the grounds of fraud etc. In that suit issue No.3 was specifically framed to the effect whether gift deed dated 3.12.1969 is the result of fraud, misrepresentation and undue influence, if so, its effect. The burden of that issue was on Bohri. The learned Sub Judge, Hamirpur has recorded a finding that plaintiff (Bohri) has failed to prove that the gift deed dated 3.12.1969 is the result of fraud, misrepresentation and undue influence and the issue was decided against her. The suit was dismissed on 30.11.1982. Ex.P-2 is the decree sheet in Civil suit No. 110/1972- 175/1978 decided on 30.11.1982. There is nothing on record that the judgment dated 30.11.1982 was assailed in appeal. In other words, judgment dated 30.11.1982 Ex.P-1 attained finality wherein it was specifically held that Bohri has executed gift deed dated 3.12.1969 in favour of the respondent. Once it has been established that Bohri had executed gift deed dated 3.12.1969 in favour of the respondent, then the question of execution of will either in favour of the appellant or in favour of the respondent loses significance. The question remains what is the effect of Section 14 (1) of the Act even if the suit land was given to Bohri for maintenance. 9. The Section 14 of the Act is as follows;- 7 “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 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.” It is not the case of the appellant that Bohri had pre-existing right of maintenance in the suit land. The suit land was not given to Bohri in lieu of pre-existing right of maintenance, at the most it was given to Bohri by way of compromise for limited period. The two courts below have rightly appreciated the material on record. The appellant cannot take benefit of Section 14(1) of the Act so as to create any cloud over the right of the respondent over the suit land which he got by virtue of gift deed dated 3.12.1969 which has already been upheld in the judgment Ex.P-1. The two Courts below have rightly appreciated the material on record. There is no misconstruction of 8 oral and documentary documents. The suit is based upon the title. The appellant has failed to prove his adverse possession on the suit land, therefore, there is no question that the suit is barred by limitation. There is no perversity in the impugned judgment. The substantial questions of law No. 1 to 4 are decided against the appellant. 10. No other point was urged. 11. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. The amount, if any, deposited in pursuance of order dated 5.1.2001 be released in favour of the respondent alongwith interest by remitting the same in his bank account to be furnished by him. ( Kuldip Singh ), May 28, 2010 Judge. (GR)