R.S.A. No. 210 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 210 of 2009 (O&M) Date of Decision : 1.4.2009 Ram Singh and others ....Appellants Versus Mohinder Singh and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.Arun Palli, Senior Advocate with Mr. Kanwal Goyal, Advocate for the appellants. ..... MAHESH GROVER, J. This is defendants' second appeal against the judgments of the learned trial Court dated 22.11.2005 and the first Appellate Court dated 4.11.2008. The plaintiffs/respondents filed a suit for possession which was decreed by both the Courts below. The facts of the case may be noticed in brief. In question is the estate of one Smt.Gauran, who executed a gift deed on 21.3.1952 in favour of one Smt. Nihal Kaur. The plaintiffs/respondents are the successors-in-interest of Nihal Kaur. Bhajan Singh, who was the predecessor-in-interest of the appellants by claiming himself to be a reversioner set up his right to the estate R.S.A. No. 210 of 2009 (O&M) -2- of Smt. Gauran and challenged the gift deed dated 21.3.1952 executed by Smt. Gauran in favour of Smt. Nihal Kaur. The said suit was decreed vide judgment dated 29.5.1953 and it was held as under :- “ Issue No. 5 A widow cannot gift away the land which descends on her from her husband, to a stranger. Such a gift is not valid according to law and custom of agriculturists. The issue is decided against the defendant. Issue No.6 The defendant has examined Sadhu Singh and Kartar Singh. They stated that the gift was effected with the consent of Sunder Singh, the nearest reversioner. Sunder Singh has been examined by the plaintiff and he does not say anything about his consent. The presence of Bhajana at the time of mutation proceedings is not mentioned. I, therefore, come to the conclusion that the gift was not effected with the consent of Sunder Singh or Bhajana. The issue is decided against the defendants.” The said judgment thereafter travelled to the Appellate Court in appeal which was filed by Bhajan Singh, the predecessor-in- interest of the present appellants. The appeal was answered vide judgment dated 31.8.1979 wherein the first Appellate Court held that according to the pedigree table Bhajan Singh was a distant collateral of Dewa Singh, the husband of Smt. Gauran and since a nearer relation Smt. Dani was present, it was held that Bhajan Singh not being the next heir was not entitled to claim any right to the estate of R.S.A. No. 210 of 2009 (O&M) -3- Smt. Gauran. It was also held further that Bhajan Singh had obtained forcible possession of the suit property and his status was determined as that of a trespasser. A regular second appeal followed bearing No.2839 of 1979, which was dismissed in default on 4.11.1997 and an application for restoration of the appeal was also dismissed on 29.9.2000. The net result of all this was that the findings recorded by the first Appellate Court vide its judgment dated 31.8.1979 qua Bhajan Singh became conclusive and final. Smt. Gauran is said to have died on 10.12.1970 opening the succession. At this point of time one Punjab Kaur set up a plea that she is the adopted daughter of Smt. Gauran and claimed right to the estate of Smt.Gauran. Her suit was decreed and she was held to be the adopted daughter of Smt.Gauran. Simultaneously Bhajan Singh also filed a suit claiming his right to succeed to the estate of Smt.Gauran. In both these suits i.e. one filed by Bhajan Singh and the other filed by Smt.Punjab Kaur, Nihal Kaur was the defendant. After the suit of Punjab Kaur was decreed holding her to be the adopted daughter of smt.Gauran and entitled to succeed to her estate, both Nihal Kaur and Bhajan Singh filed separate appeals challenging the decree in favour of Punjab Kaur. The judgment of the trial Court holding Punjab Kaur to be the adopted daughter of Smt.Gauran was upset. It is thereafter that Nihal Kaur filed the suit claiming possession of the property which has fructified in the instant regular second appeal. In the present suit Nihal Kaur pleaded that she was entitled to the possession on the basis of registered gift deed dated 21.3.1952 R.S.A. No. 210 of 2009 (O&M) -4- and she claimed that she was entitled to the property detailed in the suit as the appellant had no right on it and that no reversioner had come forward to claim the estate of Smt.Gauran. It was further pleaded by virtue of the decree dated 29.5.1953 the gift deed was merely set aside in preference to the other nearest relations and not for any other reason and sine no other relation, who could be treated a reversioner or close relative of Smt.Gauran, came forward, she was entitled to the property. The appellants contested the suit and admitted the factum of the gift deed but denied that it was valid and that it could operate in favour of Nihal Kaur. It was pleaded that the gift deed had been set aside and since they were in possession, their possession could be disturbed only by a rightful owner and by none else. The following issues were framed during the course of trial :- 1. Whether the plaintiffs were entitled to possession of the disputed property?OPP 2. Whether the plaintiffs have no locus standi to file the present suit?OPD 3. Whether the suit is barred u/s 11 CPC?OPD 4. Whether the suit is barred u/O 2 Rule 2 CPC?OPD 5. Whether the plaintiffs are estopped by their own act and conduct from filing the suit?OPD 6. Whether the suit is not maintainable in the present form?OPD 7. Relief. R.S.A. No. 210 of 2009 (O&M) -5- Both the Courts below concluded that Bhajan Singh was merely a trespasser as has been determined by the civil courts in the earlier proceedings and, therefore, he had no right to continue in possession, and since there was a gift deed in favour of Nihal Kaur, she was entitled to the possession of the suit property. Aggrieved by the abovesaid findings, the appellants are in second appeal. It has been contended by the learned counsel for the appellants that the gift deed was invalidated in the earlier proceedings. It was further pleaded that concededly the appellants are in possession of the suit property and that even if it is to be held that they are trespassers, yet the property of Smt. Gauran could be retrieved only by a reversioner and Nihal Kaur had no right in it. It was further contended that the gift deed which was executed in favour of Nihal Kaur by Smt. Gauran would subsist only during her life time and after her death it would revert back to the reversioners. But since no reversioner has come forward to stake his/her claim to the property, the appellants, who are in possession, cannot be deprived of the suit property on the proceedings initiated by Nihal Kaur who has no right at all. Reliance has been placed on Giani Ram and others v. Ramji Lal and others AIR 1969 SC 1144 in which it was held as under :- “5. The Punjab Custom (Power to Contest) Act 1 of 1920 was enacted to restrict the rights exercisable by members of the family to contest alienation made by a holder of ancestral property. By virtue of Section 6 of the Act no R.S.A. No. 210 of 2009 (O&M) -6- person is entitled to contest an alienation of ancestral immovable property unless he is descended in the male line from the great-great grandfather of the alienor. Under the customary law in force in the Punjab a declaratory decree obtained by the reversionary heir in an action to set aside the alienation of ancestral property enures in favour of all persons who ultimately took the estate on the death of the alienor for the object of a declaratory suit filed by a reversionary heir impeaching an alienation of ancestral estate was to remove a common apprehended injury, in the interest of the reversioners. The decree did not make the alienation a nullity – it removed the obstacle to the right of the reversioner entitled to succeed when the succession opened. By the decree passed in suit No.75 of 1920 filed by Giani Ram it was declared that the alienations by Jwala were not binding after his lifetime and the property will revert to his estate. It is true that under the customary law the wife and the daughters of a holder of ancestral property could not sue to obtain a declaration that the alienation of ancestral property will not bind the reversioners, after the death of the alienor. But a declaratory decree obtained in a suit instituted by a reversioner competent to sue has the effect of restoring the property alienated to the estate of the alienor.” Reliance was also placed on Brahma Nand Puri v. Neki Puri since deceased represented by Mathra Puri and another AIR R.S.A. No. 210 of 2009 (O&M) -7- 1965 SC 1506 and reference was made to para 8 of the judgment which is extracted as under :- “(8) Pausing here, we might mention that Mr.Chatterji referred us to the circumstances that during the pendency of the appeal in this Court Neki Puri had died and the certain others who, he stated, had even less claims to the Mahantship were in possession of the property and that seeing that the appellant was admittedly a Gurbhai it would be most inappropriate that his rights should be overlooked and a stranger permitted to squat on the property. We consider this submission is devoid of force. The plaintiffs suit being one for ejectment he has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property assuming learned counsel is right in that submission. As pointed out in Mukherjeet's Hindu Law of Religious and Charitable Trust.” Further reliance was also placed on Surjit Singh (deceased) and others v. Mohinder Pal Singh and another 1987(1) PLR 475. Paras 13 and 14 of the said judgment read as under :- “13. Mr. N.S.Gujral, leaned counsel for the appellants in RSA No.41 of 1977, has raised two contentions before me. His first submission is that, since the will dated 25.7.1961 executed by Hari Singh in favour of Mohinder Pal Singh and Jasmail Kaur, appellants therein, has been held by R.S.A. No. 210 of 2009 (O&M) -8- both the Courts below to be validly executed, both of them succeeded to the estate of Hari Singh and they had a right to seek possession of one-half share in the suit land being the estate of Hari Singh. He contends that the learned District Judge has wrongly concluded that only an heir of an alienor, as a result of intestate succession, could bring a suit for possession and succeed in securing a decree for the same and not an heir who succeeds on the basis of a will by the alienor. I find force in this submission. The final Court in Giani Ram and others v. Ramji lal has held that under custom when a declaratory decree setting aside an alienation is passed at the instance of a presumptive reversioner, the property alienated reverts to the estate of the alienor at the point of his death and all persons who would, but for the alienation, have taken the estate, will be entitled to inherit the same. Thus, the alienee loses any subsisting right or interest in such property at the point of death of the alienor and it forms part of the estate. The successors of the deceased alienor shall inherit the same irrespective of the fact whether the succession is intestate or as a result of a testament by him. I, therefore, set aside the findings of the learned District Judge on issue No.4 and restore that the learned trial Court. The result is that Mohinder Pal Singh and Jasmail Kaur succeeded to one- half share in the land, in dispute on the death of Hari Singh. They had a right to sue for possession of the same R.S.A. No. 210 of 2009 (O&M) -9- and secure a decree. 14. The next submission of the learned counsel, though it is rendered merely academic in view of the finding given above, is that Mohinder Pal Singh was entitled to seek possession of the entire one-half share in the land in suit, which was alienated by his father. Hari Singh, from the alienee on the death of Hari Singh. His submission is again based on the ratio of the judgment in Giani Ram's case (supra). I find force in the same. Surjit Singh alienee was left with no subsisting interest in the property, in dispute on the death of Hari Singh. Therefore, Mohinder Pal Singh could secure possession of the entire one-half share in the suit land, which reverted to the estate of Hari Singh on his death. Simply because there are some other heirs of Hari Singh, which in fact would not be there in view of the will executed by him as mentioned above, the alienee cannot be allowed to usurp his estate. The learned District Judge, in my view, was, therefore, wrong in curtailing the decree passed in faour of Mohinder Pal Singh to mere one-tenth share of the suit land” I have heard the learned counsel for the appellants at some length and have perused the record which has been produced before me. Undoubtedly, there was a gift deed in favour of Nihal Kaur executed by Smt. Gauran. The plaintiff, who had earlier challenged the gift deed on the plea that he is a reversioner, did not succeed and R.S.A. No. 210 of 2009 (O&M) -10- it was held that the gift deed was invalidated merely because other reversioner, who were alive, their consent had not been taken. But at the same time, the civil court had observed that Bhajan Singh was in possession of the suit property and his status was determined to be that of a trespasser. This Court is of the opinion that since none of the reversioners of the estate of Dewa Singh has come forward to stake claim to the share of Smt. Gauran at any stage since 1953 when the gift deed was executed, they are obviously not interested in staking claim to her property. They were the best persons who could have laid a claim to the suit property on the basis of custom and it is them alone who could have invoked the custom. In the absence of any such challenge to the alienation of suit property by a reversioner on the basis of custom, the gift deed in favour of Nihal Kaur cannot be invalidated on any other ground, as obviously there was no challenge to it on the ground of fraud, coercion, etc. The appellants in any eventuality have no right in the suit property, as their status cannot be better than that of a person in whose favour there is a validly executed gift deed which was abided by the donor throughout her life time with no attempt to revoke it. A customary right which could have been availed of by a reversioner was never availed of and accordingly the gift deed in favour of Nihal Kaur has necessarily to be held to be a valid document or at least a document which passes on a better status and a better claim to the respondents than that of the appellants who are merely trespassers. The observations made in the judgments cited by the learned counsel for the appellants, which have been reproduced R.S.A. No. 210 of 2009 (O&M) -11- above, do not apply to the facts of the case, as in those cases legitimately interested persons had invoked their claims, whereas in the instant case, as observed earlier, the appellants are merely trespassers and cannot have a better status than a person in whose favour a gift deed has been executed which subsisted during the life time of the donor without it being redeemed. No ground to interfere. Dismissed. 1.4.2009 (MAHESH GROVER) JUDGE dss