IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 592 of 2001 Judgment reserved on : 20.9.2011 Date of decision: 24.10.2011 Lal Chand …Appellant. Versus Dhian Singh and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the appellant : Mr. K.D.Sood, Advocate. For the respondents : Mr. Anand Sharma, Advocate. Kuldip Singh , Judge The plaintiff has come in second appeal against judgment, decree dated 1.11.2001 passed by learned District Judge, Kullu in Civil Appeal No. 53 of 2001 affirming judgment, decree dated 22.3.2001 passed by learned Senior Sub Judge, Kullu in Civil Suit No. 56 of 1997. The suit was filed by Lal Chand against defendant Smt. Murtu and Tedhi Singh. Smt. Murtu has died during the pendency of the second appeal, her legal representatives have been brought on record. The parties in this judgment are referred to as plaintiff and defendants. 2. The facts, in brief, are that plaintiff had filed a suit for declaration with consequential relief of injunction regarding the land more specifically described in the impugned judgment and plaint on the 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 allegations that Mouju Ram, father of plaintiff and husband of defendant No.1 was the original owner of the suit land. Mouju Ram executed registered will dated 23.1.1980 bequeathing his property situated in Phati Barahar in favour of his son Bala Ram whereas the property situated in Phati Kharihar, Kothi Maharaja was bequeathed in favour of plaintiff, limited rights of 1/3rd share of the property were created in favour of defendant No.1. On the basis of will the suit land was mutated in the name of defendant No.1. 3. It has been alleged that as per will of Mouju Ram limited rights were created in favour of defendant No.1 who was to hold, possess and occupy the suit land till her life time or remarriage as the case may be and she was debarred from alienating, mortgaging, gifting the same in any manner. In the event of remarriage or demise of defendant No.1, the property was to revert in favour of plaintiff and the plaintiff was to inherit the same. The possession of the suit land remained and is still with the plaintiff as defendant No.1 never came in possession of the suit land. 4. The defendant No.1 on the basis of will of the deceased executed some fictitious deed No. 169 on 27.1.1997 registered on 28.1.1997 in favour of defendant No.2 showing that she being owner in possession of the suit land transfer the same in favour of defendant No.2 by way of gift and on the basis of which mutation No. 1202 has been attested. The gift of suit land by defendant No.1 in favour of defendant No.2 is without any title and is void and not binding on the plaintiff. No possession of the suit land was delivered to defendant No.2. The gift is void and is not binding on the plaintiff. The defendant No.1 had been residing far away from the suit land. 3 5. The defendant No.2 in connivance with defendant No.1 in March 1997 started causing unlawful interference in the possession of the plaintiff over the suit land and attempted to dispossess the plaintiff from the suit land. In these circumstances, the suit was filed. 6. The suit was contested by defendants by filing written statement and took objection that the suit of the plaintiff is pre-mature. The objections of non-joinder of necessary parties, plaintiff is not in possession of the suit land, hence suit is not maintainable were also taken. Objections of valuation, court fee, jurisdiction, locus standi and cause of action have also been taken. On merits, it has been stated that Mouju Ram was earlier owner in possession of the suit land, who vide will dated 23.1.1980 bequeathed the suit property in favour of defendant No.1. It has been denied that only limited rights were created under the will in favour of defendant No.1. The defendant No.1 became the owner of the suit land after the death of Mouju Ram. There was no condition of conferring limited rights. The will was made in favour of defendant No.1 by her husband in lieu of her maintenance. 7. In any case even if it is assumed that limited rights were conferred in favour of defendant No.1 then such rights have enlarged into absolute ownership under Section 14 of the Hindu Succession Act, 1956 (for short ‘Act’). The defendant No.1 is absolute owner of the suit land. The will dated 23.1.1980 was procured by the plaintiff and Bala Ram from Mouju Ram by exercising undue influence. The defendant No.1 had a right to gift the suit land in favour of defendant No.2. The plaintiff has no right, title or interest in the suit land. The defendant No.1 being absolute owner in possession of the suit land has rightly gifted the same to 4 defendant No.2 through gift deed dated 27.1.1997 registered on 28.1.1997. The possession of the suit land was also delivered to defendant No.2, who is absolute owner in possession of the suit land. The replication was filed and the averments made in the plaint were reiterated. 8. On the pleadings of the parties, the following issues were framed:- 1. Whether by virtue of Will dated 23.1.1980 executed by late Shri Mouju Ram limited rights were created in favour of defendant No.1 as alleged? OPP 2. Whether gift deed No. 169 executed by defendant No.1 in favour of defendant No.2 is void and has no binding effect on plaintiff as alleged? OPP 3. Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP 4. Whether the suit of plaintiff is premature? OPD 5. Whether this suit is not maintainable as alleged? OPD 6. Whether this suit is bad for non-joinder of necessary parties as alleged? OPD 7. Whether this suit is not properly valued for the purposes of Court fees and jurisdiction? OPD 8. Relief. All the issues were answered in negative by the trial Court and the suit was dismissed on 22.3.2001. In appeal, the learned District Judge on 1.11.2001 affirmed the judgment, decree dated 22.3.2001, hence second 5 appeal which has been admitted on the following substantial questions of law:- 1. Whether on a proper construction of the Will Ex.PW-1/A Section 14(1) of the Hindu Succession Act applied and Smt. Murtu has been treated as a limited owner and thus not entitled to gift the property to Thedi Singh? 2. Whether the findings of the court below are based on mis- reading and misconstruction of basic document of title the Will Ex. PW-1/A executed by Mouju Ram after coming into force of the Hindu Succession Act which created only a limited right in favour of Murtu during her life time and which specifically precluded her from selling, transferring or encumbering the property? 3. Whether in the facts and circumstances of the case whether plaintiff was in settled possession of the property, was entitled to a decree of injunction protecting his possession? 9. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted by the learned counsel for the appellant that the two Courts below have misconstrued, misinterpreted the Will Ex.PW-1/A and Section 14 of the Act. Only limited rights were created in favour of defendant No.1 under the Will which were not enlarged into full ownership. The two Courts below have erred in dismissing the suit. The learned counsel for the respondents has supported the impugned judgment, decree and has submitted that the two Courts below have recorded a concurrent finding of fact. The 6 impugned judgment and decree are correct both on facts and in law. In second appeal, the evidence cannot be re-appreciated. He has prayed for dismissal of the appeal. 10. The substantial questions of law No.1 to 3 are inter- connected, therefore, all of them are taken up collectively for consideration. The english translation of Will Ex.PW-1/A has been reproduced in para 10 of the judgment of the lower appellate Court. This translation has not been disputed on either side. The interpretation of the Will is involved in the present case, therefore, same is reproduced hereinbelow:- “ I Mouju Ram son of Nokhu Ram son of Santu, caste Rajput, resident of Sharne-agge, Phati Kharihar, Kothi Maharaja, Tehsil and District Kullu, aged 65 years. That I had wife named Uttmi. From that wedlock two sons namely Bala Ram and Lal Chand and four daughters Smt. Shauli, Neemdasi, Lachhi and Premlata, were born and are living settled in their respective house. My wife Smt. Uttmi since 15-16 years is dead. Now, I have contracted Jhanjhrara marriage with Smt. Murtu Wd/o Kalu caste Rajput, resident of Khani-pande, Kothi Dughilag. Smt. Murtu is residing in my house. I am owner of movable and immovable property in Phati Kharihar and Phati Barahar, Kothi Maharaja, Tehsil and District Kullu. I generally remain ill. There is no surety of life. I do not want dispute to arise regarding my property after my death. Therefore, during my life I bequeath my property as under that I shall remain owner till life. After my death my property of Phati Kharihar, Kothi Maharaja to the extent of 2/3 share shall go to my son Lal Chand and 1/3 share to my wife Smt. Murtu but with condition that Smt. Murtu my wife shall have life interest or till re-marriage. She will have no right to mortgage, sell, gift or bequeath or alienate the property in any manner. After death of Murtu her share in the property will go to my son Lal Chand, who shall be owner of the property like me. In addition my remaining property in Phati Kharihar, Kothi Maharaja shall go to my son Lal Chand and none else would have any right in it. My remaining movable and immovable property of Phati Barahar, Kothi Maharaja, Tehsil Kullu 7 shall go to my son Bala Ram. This is my last Will. Therefore, Will in my full senses, of my own, in presence of witnesses is executed today on 23.1.80/3/11/1901, at Kullu.” 11. It has been contended on behalf of the plaintiff that defendant No.1 had been given only limited right under the Will by Mouju Ram and after the death of defendant No.1 the right which was given to defendant No.1 would go to plaintiff as full owner under the Will Ex.PW-1/A. On the contrary, the case of the defendants is that limited right given to defendant No.1 under the Will would blossom into full ownership under Section 14(1) of the Act. It has been submitted that defendant No.1 had pre-existing right of maintenance against her husband Mouju Ram. The said right was not created first time under the Will. Hence, the property which had come in the hands of defendant No.1 would be governed by sub section (1) of Section 14 and not under sub section (2) of Section 14 of the Act. 12. The Section 14 of the Act is as follows:- “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 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 8 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.” 13. In Anoop Kaur and another vs. Anup Singh Grewal AIR 2003 Punjab and Haryana 241, the will dated 20.7.1939 executed by Mehtab Singh in favour of his wife Pratap Kaur was as follows: “After my death, my wife Smt. Partap Kaur would be sole owner of the property mentioned in this Will and my wife will have no right to alienate the property. The entire responsibility of the bringing up, education and marriage of my minor daughters would be on her and after the death of my wife Partap Kaur my son Anup Singh would be the absolute owner of all the property.” It was also stated by the testator that he executed the said Will for maintenance of his family, which consists of his minor son and two minor daughters. The reading of the Will, as a whole, makes it clear that the testator Mehtab Singh was intending to give the limited right in the property to his wife Partap Kaur for her life time, so that she can maintain the minor children and perform the marriages of the minor daughters. It was also the intention of the testator, as appears from the Will, that after the death of Partap Kaur, the entire property should go to his only son Anup Singh…….” The learned Single Judge has held as follows:- “There was no pre-existing right vesting in her when the Will in question became effective. The question of ripening the said limited estate into the full ownership under Section 14(1) of the Act does not arise. The case in hand does not fall under Section 14(1) of the Act, because Partap Kaur was not given the property in lieu of maintenance or by way of a gift. For the first time, in the Will, the right was created and that became effective on the death of Mehtab Singh. The case of plaintiff is squarely covered under Section 14 (2) of the Act and the limited ownership conferred on Partap Kaur will not ripen into full ownership….” 9 14. In Sadhu Singh vs. Gurdwara Sahib Narike and others AIR 2006 SC 3282, the facts were that on 7.10.1968 Ralla Singh executed a Will. Ralla Singh died on 19.3.1977. His widow Isher Kaur on 21.1.1980 purported to gift the property in favour of a Gurdwara. The appellant filed a suit challenging the deed of gift and recovery of possession. The contention was that Isher Kaur took only a life estate and the properties were to vest in the appellant and his brother. Isher kaur had no right to gift the property to the Gurdwara. Isher Kaur and the Gurdwara, contended that the property received by Isher Kaur on the death of her husband was as his heir and it was taken by her absolutely and she was competent to deal with the property. Section 14(1) of the Hindu Succession Act entitled her to deal with the property as an absolute owner. The Supreme Court in para 17 of the report has observed regarding the Will as follows:- “17. We shall now construe the Will of Ralla Singh. He says in the Will that he is 73 years old. He has no progeny. Only his wife and his two nephews (sister’s son) are alive and he wants to dispose of the property during his lifetime. He was absolute owner of the properties. He wants to provide for management of the properties in such a manner that after his death his wife so long as she remains alive will be the absolute owner and party in possession of all his properties and after her death, the rights over the property would be inherited by his two nephews. He is hence executing the Will in favour of his wife in respect of all his properties moveable and immoveable so that she will be the absolute owner and party in possession after his death. So long as he was alive he will be the owner of his properties and after his death his wife would be the owner of his properties. So long as his wife was alive she will be the owner of the properties and after her death his nephews will take the property in equal shares and during her life time his wife Isher Kaur will not transfer the properties to any other heirs by way of any will. He has also added 10 a note to the effect that his wife after his death will not be entitled to mortgage or sell the properties during her lifetime. 18. Going by the terms of the Will, initially, Ralla Singh has conferred an absolute estate on his wife subject to the restriction that she shall not dispose of the same by a will to any other heirs. The will also says that after the death of Isher Kaur, the two nephews Pritam Singh and Sadhu Singh would take the properties in equal shares. Thus, what is seen is that an apparent absolute estate has been conferred on Isher Kaur but with a stipulation that on her death the property will devolve on his two nephews and with an interdict that she shall not dispose of the property by testamentary disposition in favour of any other heir. It is stated that Isher Kaur will be the owner of the moveable and immoveable properties after the death of the testator. But at the end, the will has also stipulated that Isher kaur will not be entitled to mortgage or sell the properties during her lifetime. 19. What the court has to attempt is a harmonious construction so as to give effect to all the terms of the Will if it is in any manner possible. While attempting such a construction, the rules are settled. Unlike in the case of a transfer in praesenti wherein the first clause of the conveyance would prevail over anything that may be found to be repugnant to it later. In the case of a Will, every effort must be made to harmonize the various clauses and if that is not possible, it will be last clause that will prevail over the former and giving way to the intention expressed therein…..” The Supreme Court further held that first attempt must be made to reconcile all the clauses in the Will and give effect to all of them and held as follows:- “When we make that attempt in the context of what this Court had indicated in the decision quoted above, we find that the apparent absolute estate given to his wife by the testator is sought to be cut down by the stipulations that the property must go to his nephews after the death of the wife, that the wife cannot testamentarily dispose of the property in favour of anyone else and the further interdict in the note that the wife during her life time would not be entitled to mortgage or sell the properties. Thus on reconciling the various clauses in the Will and the destination for the properties 11 that the testator had in mind, we have no hesitation in coming to the conclusion that the apparent absolute estate in favour of Isher Kaur has to be cut down to a life estate so as to accommodate the estate conferred on the nephews.” 15. In T.K.Subhash vs. Kamala Bai and others AIR 2008 Andhra Pradesh 169 (DB) one T.S.Krishnachar executed a registered Will dated 23.7.1988 whereunder he bequeathed his properties to his wife and three sons. Under the said Will he granted life estate to his wife Smt. Kamala Bai in respect of ground floor as well as first floor. The relevant part of the Will reproduced in the report as follows:- “In case of my wife’s (Kamala Bai’s) untimely and unexpected death the plot No. 33 will automatically go to with absolute rights to my son T.K.Subhash. My wife Kamala Bai Krishan Char will have the right to live in first floor No. 16-11-784/1/1 and collect rent from the ground floor No. 16-11-784 and shed for her maintenance till her demise. Only after my wife’s death my two sons T.K.Mohan will be eligible to occupy the ground floor and T.K.Subhash to occupy the first floor that I am giving Plot No. 35 measuring 40 ft. by 60 ft. next to ground floor building No. 16-11-784 facing Amberpet Road to my first son T.K.Gururaj, B.E. aged about 32 years, employed in Bharat Electronics Ltd., Bangalore with absolute rights.” Smt. Kamala Bai executed registered gift deed in favour of her daughter on 23.3. 2005. Daughters in turn sold the house property vide registered sale deed dated 17.5.2007. The High Court held: “That the contention of the learned senior counsel appears to be sound on first blush. But on close scrutiny of the covenants of the Will dated 23.3.2005 (sic) executed by Krishnachar, we do not detain ourselves long to reject his contention. The covenants in respect of the suit property have been detailed in the aforesaid 12 paras of this judgment. The intention of the testator is very clear and there is no scope for any ambiguity that what he conveyed to the first defendant is only restricted rights which mean that she can enjoy the ground and first floors of the suit house during her lifetime. The three Judge Bench of the Supreme Court in Mrs. Karmi vs. Amru (AIR 1971 SC 745) held that where only life estate is conferred on a Hindu woman under the Will, she cannot claim to have become absolute owner under the Hindu Succession Act….” The High Court continued and held: “That the convenants of the Will of the testator-Krishnachar do not give any scope for ambiguity that he had given life estate to his wife first defendant. There is nothing in the WILL to indicate that the life estate has been given to the first defendant Kamala Bai in recognition or in lieu of her pre-existing right. It is beyond the pale of controversy that the suit house is the self acquired property of the testator and he has every right to convey the same to any one he likes. He cautiously granted restrictive rights to the first defendant who is his wife and absolute rights to his sons who have been arrayed as the plainitiff and 7th defendant in the suit. Therefore, the limited estate granted to the first defendant does not expand to absolute estate. It is the property which the 1st defendant got without any pre-existing right. The first defendant cannot take shelter under Section 14(1) of the Hindu Succession Act since it is wholly inapplicable to the facts and circumstances of the case. The first defendant accepted the restricted rights in the suit house in pursuance of the WILL of her husband and therefore rights she got would come within the purview of sub-section (2) of Section 14 and not sub-section (1) of Section 14 of the Act….” 16. In Chandrika Singh (dead) by LRs. And another vs. Sarjug Singh and another (2006) 12 SCC 49 it has been held that once it was found that Koleshra Devi was possessed of the land in question in lieu of her right of maintenance, sub-section (1) of Section 14 of the Hindu Succession Act, 1956 will clearly be attracted. 13 17. The Supreme Court in Santosh and others vs. Saraswathibai and another (2008) 1 SCC 465 noticed Nazar Singh vs. Jagjit Kaur (1996) 1 SCC 35 wherein it has been held that where the property is given to a female Hindu towards her maintenance after the commencement of the Act, she becomes the absolute owner thereof the moment she is placed in possession of the said property (unless of course she is already