IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.210 of 1987 (O&M) Date of decision: 12.11.2009 Kedar Nath(dead) through LRs -----Appellants Vs. Rishi Raj and others ----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL Present:- Mr. Yogesh Kumar Sharma, Advocate for the appellants. None for the respondents. Adarsh Kumar Goel,J. 1. This appeal has been preferred by the plaintiff against dismissal of his suit by the courts below for possession and injunction. 2. Case of the plaintiff was that suit property was originally owned by Daya Chand from whom the same was inherited by Mani Ram, grandfather of the plaintiff. RSA No.210 of 1987 (O&M) Brother of plaintiff’s father Garib Dass died issueless and was survived by his widow Bhagti, who inherited property which would have fallen to the share of Garib Dass on death of Mani Ram. On death of Bhagti, the plaintiff was entitled to inherit the suit property as Bhagti had inherited limited estate. However, Bhagti suffered a decree in favour of the defendants on 14.9.1979 in the Court of Sub Judge, Ist Class, Kurukshetra in Suit No.677 of 1979, which was fraudulent and void. She died on 6.11.1979. 3. The defendants, who were nephews of Smt.Bhagti, contested the suit by submitting that there was civil and criminal litigation between the plaintiff and Smt.Bhagti. She executed Will dated 5.2.1969 in favour of defendants with whom she was living and who were serving her. She also suffered decree dated 14.9.1979 in their favour. 4. Main issue between the parties was Issue No.1 as to validity of the decree. 5. The trial court held that the decree Ex.D5 was valid and was suffered by Bhagti voluntarily. She was absolute owner under section 14(1) of the Hindu 2 RSA No.210 of 1987 (O&M) Succession Act, 1956 (in short, ‘the Act’). It was further held that Will Ex.D6 was valid. The same was scribed by DW2 Krishan Kumar and was proved by attesting witness Sulkekh Chand DW3. Other witness Hari Ram, Sarpanch had died. Will Ex.D6 was duly registered and carried endorsement of the Registrar dated 5.2.1969 that contents of the Will were read over and explained to the parties. Accordingly, Issue No.1 was decided in favour of the defendants and against the plaintiff by upholding Will as well as decree. 6. The lower appellate court affirmed the finding of the trial court on the validity of decree. It was held that allegation of fraud and undue influence was not proved. Contention against validity of the Will was not gone into in view of finding on validity of decree in favour of the defendants. 7. I have heard learned counsel for the appellants who proposed following substantial questions of law:- “i) Whether out of two coparceners one dies then whether the surviving coparcener does not become the sole and absolute owner of 3 RSA No.210 of 1987 (O&M) coparcenary/ancestral property by Rule of survivorship? ii) Whether a Hindu woman having a limited right of maintenance can become a coparcener in coparcenary/Ancestral property after promulgation of Hindu Succession Act? iii) Where a Hindu woman inheriting property from her father-in-law and dying without any testament and issueless can give the said property to persons other than the heirs of her father-in-law? iv) Where by virtue of a collusive decree, a party having no preexisting right in the property i.e. the ownership thereof, whether that decree is not required to be registered and in the absence thereof whether the said decree is executable and the property is capable of being transferred in favour of the said party? v) Whether mere entry of mutation in the revenue papers confers any title on the person in whose favour the mutation has been sanctioned?” 8. It has been submitted that the property was to devolve by rule of survivorship and female had only right of maintenance in ancestral property and she could not give 4 RSA No.210 of 1987 (O&M) the property to anyone other than her father-in-law from whom the property was inherited or his heirs. In absence of any pre-existing right, the decree required registration and mere mutation in her favour did not confer any title. 9. Pedigree table of the family as given in the plaint and noted in impugned judgment is as under:- Daya Chand / / / Nihal Mani Ram _________________________________________ / / Dhanpat Garib Dass / / / / Kidar Acchpal Sona,Vidya, Ram Krishni Bhagti widow Nath Piari (deceased)” plaintiff 10. As regards Questions (i to iii), the rule of survivorship is subject to statutory provisions of Hindu Succession Act by virtue of which even a female inherits the property absolutely in the manner laid down therein. It is not in dispute that succession to the estate of Mani Ram opened after enactment of Hindu Succession Act. Provisions of section 15 of the Act laying down the general rule of succession in the case of female Hindu does not 5 RSA No.210 of 1987 (O&M) apply to inter-vivos transfer nor to a testamentary succession. In view of this settled legal position, which could not be disputed by learned counsel, questions (i) to (iii) cannot be held to be substantial questions of law. 11. As regards Question No.(iv, it is well settled that requirement of registration does not apply to a family settlement which may be recognized by way of a decree. Contention that the family settlement could not have been entered between Bhagti and the defendants, as defendants were not her heirs, though they were her nephews, cannot be accepted in view of law laid down in Kale and others, Appellants v. Deputy Director of Consolidation and others, AIR 1976 SC 807, holding that concept of “antecedent title” had been widened by judgment of the Hon’ble Supreme Court and could be assumed in favour of person in whose favour family settlement was made. Moreover, no such question was raised before the courts below. Further, even though, the lower appellate court has not gone into the question of validity of Will in view of its finding on validity of decree, the trial court has recorded a clear finding of validity of Will. On being asked about the 6 RSA No.210 of 1987 (O&M) same, learned counsel has not been able to assail the finding of the trial court on this aspect. 12. In view of above, the questions proposed cannot be held to be substantial questions of law. 13. The appeal is dismissed. November 12, 2009 (Adarsh Kumar Goel) ‘gs’ Judge 7