RSA No.4040 0f 2005 -1- In the High Court of Punjab and Haryana at Chandigarh. Date of decision:06.08.2008. Devinder Kaur Toor ... Appellant Versus Kirpal Singh and others ... Respondents CORAM: HON’BLE MR. JUSTICE PERMOD KOHLI PRESENT: Mr.Arun Palli, Senior Advocate, with Mr.Jai Bhagwan, Advocate, for the appellant. Mr.RC Setia, Senior Advocate,with Mr.Vishal Ranjan,Advocate, for the respondents. PERMOD KOHLI, J. (Oral): Kirpal Singh, respondent No.1 herein, filed a suit for declaration claiming to be the owner in possession of the land measuring 24 Kanals 19 Marlas out of 49 Kanals 17 Marlas of land as ½ share therein as also an amount of Rs.22,702/69 $. The plaintiff alleged that he and Hartej Kaur are the son and daughter of Gurbachan Singh who was living in London and died on 09.06.1996. The deceased had one wife, Simar Kaur, having one son and daughter i.e. the plaintiff and Hartej Kaur. It is further alleged that defendant Nos.1 to 3 have no concern with the property of the deceased Gurbachan Singh. The plaintiff also pleaded that the deceased during his life time executed a Will dated 27.05.1989 bequeathing his entire estate in favour of the plaintiff. Further the case of the plaintiff is that Manjit Kaur and Devinder Kaur are claiming to be the widow and daughter RSA No.4040 0f 2005 -2- of Gurbachan Singh, have no relation with the deceased and are not the legal heirs of deceased Gurbachan Singh. It has also been pleaded in the plaint that the land in question situated at Ludhiana was purchased by deceased Gurbachan Singh from Balwant Kaur on 25.06.1996 and after his death, the plaintiff is owner in possession of the suit land and is also entitled to the amount of the Fixed Deposit. Defendant Nos.1 to 3 contested the suit. It has been pleaded that defendant Nos.1,2 and 4 are the widow, daughter and son, respectively of deceased Gurbachan Singh. It is further the stand of the defendants that defendant No.1 was married to Gurbachan Singh in the year 1950 after his first wife Simar Kaur died. Defendant Nos.2 and 4 were born out of the wedlock between defendant No.1 and deceased Gurbachan Singh. Defendants also pleaded hat the amount lying in Fixed Deposit also belongs to defendant No.2. According to the defendants, defendant No.1 was nominated as a beneficiary on maturity in the year 1997 and, thus, the amount was re-deposited by defendant No.1 in foreign currency in a joint account with defendant No.2. On the basis of the pleadings of the parties, as many as eight issues were framed by the learned trial Court. However, the relevant issues are issues Nos.1 to 3 which are noticed hereunder;- 1. Whether the plaintiff is owner in possession of the suit property? OPP 2. Whether the plaintiff is entitled to fixed deposit of NRI account No.1649 and FC.N.R.? OPP RSA No.4040 0f 2005 -3- 3. Whether Gurbachan Singh executed a valid Will in favour of the plaintiff on 27.5.1988? OPP The plaintiff produced as many as five witnesses. No evidence was led by the defendant. During the course of evidence, defendant No.1 also claimed right as an owner under the same Will dated 27.05.1988 which is relied upon by the plaintiff. However, it is claimed that she has acquired the full-fledged right being a female under Section 14 (1) of the Hindu Succession Act (herein after referred to as “the Act”). On the basis of the evidence on record, the learned trial Court found that under the Will executed by deceased Gurbachan Singh, which is admitted by both the parties, defendant No.1 was given a limited right during her life time. The Will further provided that after the death of defendant No.1, the entire property was devolved upon the plaintiff and if the plaintiff pre-deceased defendant No.1, the property shall go to the children of the plaintiff. Regarding the movables, it is provided that under the Will, the amount shall be shared equally by the plaintiff and defendant No.1. On interpretation of the Will Exhibit, P-2, the learned trial Court found that defendant No.1 had has the limited interest during her life time and she has not acquired the ownership under Section 14 (1) of the Act. It has been held that the case of defendant No.1 is covered under Section 14 (2) of the Act. Regarding the amount deposited in the Fixed Deposits, the learned trial Court declared both the plaintiff and defendant No.1 to be entitled to the said amount in equal shares, but subject to obtaining succession certificate. Even though, defendant No.1 was held to be having only limited interest, however, the RSA No.4040 0f 2005 -4- suit of the plaintiff was dismissed as not maintainable and pre-mature during the life time of defendant No.1. The learned trial Court passed the judgment and decree dated 26.08.2003 in the aforesaid terms. An appeal came to be preferred by defendant No.1 in the Court of learned Additional District Judge,Hoshiarpur. During the pendency of the first appeal, defendant No.1-appellant died and the present regular second appeal has been filed by Devinder Kaur Toor who is the daughter of defendant No.1-Ranjit Kaur widow of Gurbachan Singh. It has been held by the learned Lower Appellate Court that since defendant No.1 has died, the plaintiff is entitle to decree for declaration being the beneficiary under the Will after the death of defendant No.1. The learned Lower Appellate Court also affirmed the findings regarding the amount which was to be shared by defendant No.1 and plaintiff in equal shares after the death of defendant No.1. The present appellant is the successor-in-interest of Smt. Ranjit Kaur (defendant No.1). The judgment and decree passed by the learned Lower Appellate Court is dated 29.07.2005. I have heard the learned counsel for the parties at length and perused the record of the case. Learned counsel for the appellant has tried to emphasis that defendant No.l being widow had the right of maintenance. The property in dispute was given to her in lieu of maintenance. Under the provisions of Section 14 (1) of the Act, her right has matured into the ownership. Section 14 of the Hindu Succession Act reads as under:- “14. Property of a female Hindu to be her RSA No.4040 0f 2005 -5- 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 moveable and immoveable 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.” A female is entitled to claim absolute right, if she has a pre- existing right or the property is held by her in lieu of maintenance or arrears RSA No.4040 0f 2005 -6- of maintenance or acquired by inheritance, under a partition or any gift from any person before or after her marriage or acquired such property by her own skill or exertion or purchased or by prescription. The case of deceased Ranjit Kaur did not fall in any of the situations indicated in the explanation to Section 14 (1) of the Act. Sub-Section (2) of Section 14 of the Act is clear in its terms, which inter-alia, provide that where a female acquires a property by way of a gift or under a Will or any other instrument or the decree or award confering a restricted estate, in such property she cannot claim any expansive right therein. In the present case, there is nothing in the Will even to remotely suggest that the property was bequeathed in favour of defendant No.1 in lieu of maintenance. The text of the Will reads as under:- “I give and bequeath and leave all my real properties wheresover and whatsoever to my wife Mrs.Ranjit Kaur Khabra who will have in them a life interest and which properties she will hold for my son Kirpal Singh Khabra until her death and then to my son absolutely. Should my son predeceased my wife then I bequeath and give my real properties to my grand children (the children of Kirpal Singh Khabra) in equal shares absolutely.” To the contrary, a text of the Will noticed here-in-above, clearly suggest that defendant No.1 was allowed only limited interest in the RSA No.4040 0f 2005 -7- property during her life time and it devolves upon the plaintiff after her death and in the event the plaintiff pre-deceased defendant No.1, property goes to the children of the plaintiff. The intention of the testator is clear to convey/bequeath the property ultimately to the plaintiff or/and his children and under no situation any right was conferred over the property as an absolute owner upon defendant No.1. This issue is no more res integra in view of Sadhu Singh Vs. Gurdwara Sahib Narike & Ors. , JT 2006 (8), S.C., 525. In this case, a Will was executed by one Ralla Singh during his life time stating therein that the property is self acquired property of the testator and after his death all his property would go to his wife, but she would have no right to mortgage or sell the same. The Will also provides that the wife shall have no testamentary disposition and after the death of his wife, the property shall go to his nephews. The wife of Ralla Singh, namely, Isher Kaur, transferred the property in favour of Gurdwara Sahib, Narike. Nephews of Sadhu Singh challenged the transfer of the property by the widow in favour of Gurdwara Sahib and also sought recovery of possession on the basis of the Will. The suit was contested by the widow and Gurdwara Sahib claiming absolute right of the widow over the property. The trial Court dismissed the suit on the ground that the Will was not genuine and the widow had taken over the property as absolute owner. The learned Lower Appellate Court, however, reversed the findings on the question of validity of the Will. In the meantime, the widow of testator died. In the second appeal, the High Court reversed the findings of the learned Lower Appellate Court and dismissed the suit. In Civil Appeal before the Hon’ble Supreme Court, the findings of the High Court were set aside and the decree passed by the learned Lower Appellate Court in favour RSA No.4040 0f 2005 -8- of the plaintiff for recovery and possession of the suit property restored holding that the widow had only limited interest under the Will and she could not have transferred the property in favour of Gurdwara Sahib. Hon’ble the Supreme Court has held as under:- “14. When he thus validly disposes of his property by providing for a limited estate to his heir, the wife, or widow has to take it as the estate falls. This restriction on her right so provided, is really respected by the Act. It provides in Section 14 (2) of the Act, that in such a case, the widow is bound by the limitation on her right and she cannot claim any higher right by invoking Section 14 (1) of the Act. In other words, conferment of a limited estate which is otherwise valid in law is reinforced by this Act by the introduction of Section 14 (2) of the Act and excluding the operation of Section 14 (1) of the Act, even if that provision is held to be attracted in the case of a succession under the Act. Invocation of Section 14 (1) of the Act in the case of a testamentary disposition taking effect after the Act, would make Sections 30 and 42 (2) redundant or otiose. It will also make redundant, the expression 'property possessed by a female Hindu' occurring in Section 14 (1) of the Act. An interpretation that leads to such a result cannot RSA No.4040 0f 2005 -9- certainly be accepted. Surely, there is nothing in the Act compelling such an interpretation. Sections 14 and 30 both have play. Section 14 (1) applies in a case where the female had received the property prior to the Act being entitled to it as a matter of right, even if the right be to a limited estate under the Mitakshara law or the right to maintenance.” In view of the clear interpretation of Section 14 of the Act, the appellant who is the daughter of defendant No.1, deceased Ranjit Kaur, has absolutely no right to claim the property through her mother Ranjit Kaur, who had only a limited interest in the property. The property devolves upon respondent No.1 Kirpal Singh, plaintiff in the suit. No substantial question of law arises. In view of the above, I find no merit in the present appeal and the same is hereby dismissed with no order as to costs. 06.08.2008 (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES