RSA No.278 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.278 of 1984 Date of Decision: 23.12.2011 Gurmel Singh .....Appellant Vs. Gurnam Singh and others .....Respondents CORAM : HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK **** Present : Mr.Sarjit Singh, Sr.Advocate with Mr. Jagdev Singh, Advocate for the appellant. Mr. J.R. Mittal, Sr.Advocate with Mr. Kashmir Singh, Advocate for the respondents. .... 1. Whether Reporter of the local paper may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? RAMESHWAR SINGH MALIK, J The appellant is the original plaintiff. The suit was decreed. The instant appeal is directed against the judgement and decree dated 28.9.1983, passed by the learned District Judge, Bhatinda, whereby the appeal filed by the defendants was accepted reversing the judgement and decree dated 27.8.1979 and the suit of the plaintiffs was dismissed. Succinctly put, the facts of the case are that Sucha Singh was the last male holder. The admitted pedigree table, as given in para 2 of the impugned judgement, is as under :- Sucha Singh (died in 1952) ---------------------------------------------------------------------- Harpal Singh Bhag Singh (died in 1942) (died in 1931) Jangir Kaur (widow) (defendant no.4) ---------------------------------- Gurmel Magher Nihal Kaur Singh Singh (widow) (Plaintiffs) RSA No.278 of 1984 2 The plaintiffs filed their suit for declaration, challenging the sale deed dated 10.6.1977, suffered by Smt.Jangir Kaur-defendant no.4 in favour of defendants-respondents no.1 to 3 namely; Gurnam Singh, Pritam Singh and Jagtar Singh. The plaintiffs pleaded that Sucha Singh was the owner of land measuring 378 Bighas 1 Biswa including the suit land. Sucha Singh died on 13.7.1952. Smt. Jangir Kaur-defendant no.4 was married to Bhag Singh, who died in the year 1931, before the death of his father Sucha Singh. It was the further case of the plaintiffs that Smt. Jangir Kaur, entered into Karewa marriage with Harpal Singh, father of the plaintiffs. Harpal Singh died in the year 1942, before the death of his father Sucha Singh. Both brothers namely; Harpal Singh and Bhag Singh were married to Smt.Nihal Kaur and Smt.Jangir Kaur respectively, who were the real sisters. It was also pleaded by the plaintiffs that after the death of Sucha Singh, it were the plaintiffs, who were entitled to succeed to Sucha Singh in equal shares. However, Smt. Jangir Kaur-defendant no.4, in collusion with the revenue authorities, got the mutation sanctioned in her favour to the extent of ½ share, behind the back of the plaintiffs. The other ½ share was sanctioned in favour of the plaintiffs. This mutation came to be challenged by the plaintiffs in appeal before the Collector. The case was remanded by the Collector to the Assistant Collector, for fresh decision. It is further pleaded case of the plaintiffs that during the pendency of the mutation proceedings, a compromise was got effected between the parties through the intervention of the Panchayat and other respectables of the village. As per this compromise dated 30.12.1953, Ex.P-1, Smt. Jangir Kaur-defendant no.4, agreed to have only 70 Bighas of land, out of the total land left behind by Sucha Singh. In terms of the compromise Ex.P-1, Smt. Jangir Kaur was RSA No.278 of 1984 3 given this (70 Bighas) of land only for the purpose of maintenance during her life time with the condition that she would not alienate or transfer the same. It was further pleaded that pursuant to the compromise dated Ex.P-1, the Tehsildar sanctioned the mutation in respect of 308 Bighas 1 Biswa of land in favour of the plaintiffs. The mutation for the remaining land i.e. 70 Bighas was sanctioned in favour of Smt. Jangir Kaur-defendant no.4. Thereafter, the consolidation proceedings took place in the village of the parties. Land measuring 487 Kanals 10 Marlas was allotted in favour of the plaintiffs, in lieu of the old Khasra numbers. Land measuring 101 Kanals 1 Marla was allotted to Smt. Jangir Kaur-defendant no.4, in lieu of 70 Bighas of land. It was also pleaded by the plaintiffs that the consolidation authorities wrongly shown Smt. Jangir Kaur as widow of Bhag Singh, instead of widow of Harpal Singh. The plaintiffs pleaded that the land sold by Smt. Jangir Kaur-defendant no.4, vide sale deed dated 10.6.1977 in favour of defendants/respondents no.1 to 3 for a fictitious amount of ` 25,000/- was illegal, being in contravention of the compromise dated 30.12.1953 Ex.P-1. It was the further case of the plaintiffs that Smt.Jangir Kaur-defendant no.4 was entitled to retain the suit land only for her maintenance during her life time and she had no right to alienate the same. It was further pleaded by the plaintiffs that since the parties were governed by Punjab Customary law and Smt.Jangir Kaur-defendant no.4, being the widowed daughter-in-law of Sucha Singh, was not entitled to succeed to the estate left behind by Sucha Singh. Smt. Jangir Kaur-defendant no.4 filed her written statement, wherein she pleaded that she was the widow of Bhag Singh. She specifically denied the averments taken in the plaint that she entered into Karewa RSA No.278 of 1984 4 marriage with Harpal Singh, after the death of her husband Bhag Singh in the year 1931. She further pleaded that the mutation was rightly sanctioned in her favour by the Assistant Collector on 26.6.1956, to the extent of ½ share in the land left behind by her father-in-law Sucha Singh, she being the widow of pre-deceased son Bhag Singh. The remaining ½ share was rightly mutated in favour of the plaintiffs, being the sons of Harpal Singh, pre- deceased son of Sucha Singh. She also denied having been entered into any compromise with the plaintiffs, vide which the 70 Bighas land was given to her for her maintenance during her life time. She denied that the suit land was allotted to her during the consolidation proceedings. On the other hand, she pleaded that the suit land was given to her by the plaintiffs after obtaining ` 24,000/- through four pronotes dated 13.6.1976. Two of these pronotes were in favour of plaintiff no.1 for ` 7000/- and ` 5000/- respectively. The other two pronotes were in favour of plaintiff no.2 for the similar amounts. She also pleaded that it was orally agreed between the parties that on her repaying the amount of ` 24000/- to the plaintiffs, they would return the suit land to her. It was also agreed, though orally as alleged,that till the amount of ` 24,000/- paid, she would not claim any rent (batai) from the plaintiffs, whereas the plaintiffs would not claim any interest on the amount of ` 24,000/- from Smt.Jangir Kaur-defendant no.4. The fact that she sold the suit land to defendants no.1 to 3, vide sale deed dated 10.6.1977 and delivery of possession thereof to her vendees was admitted by Smt.Jangir Kaur-defendant no.4. Defendants/respondents no.1 to 3 admitted in their joint written statement that they had purchased the suit land from Smt.Jangir Kaur- defendant no.4, who was in possession of the suit land since before 1956. It RSA No.278 of 1984 5 was further pleaded by defendants no.1 to 3 that Smt.Jangir Kaur-defendant no.4 was full owner of the suit land and she was entitled to alienate the same. Defendants no.1 to 3 further pleaded that the suit land was under mortgage with the plaintiffs for ` 24,000/-, on the basis of the pronotes dated 13.6.1976. It was also pleaded by defendants no.1 to 3 that after paying the mortgage money of ` 24,000/- to the plaintiffs, Smt.Jangir Kaur- defendant no.4 got back the possession of the suit land from the plaintiffs. Thereafter, she sold the suit land to defendants no.1 to 3 and also delivered to them the possession thereof. Defendants no.1 to 3 took the averment that the plaintiffs were estopped from challenging the title of Smt.Jangir Kaur- defendant no.4 by their acts and conduct. It was the further case of defendants no.1 to 3 that they being the bonafide purchasers for due consideration, their right of absolute ownership over the suit land was protected by law. On completion of the pleadings of the parties, the following issues were framed by the learned trial court :- 1. Whether the land in dispute and other land as mentioned in para no.3 of the plaint was given to defendant no.4 for maintenance for her life time by a compromise effected on 30.12.1953 ? OPP. 2. Whether the sale made by defendant no.4 in favour of defendants no.1 to 3 in respect of the land in dispute is null and void ? OPP. 3. Whether defendants no.1 to 3 are bonafide purchasers of the suit land and for value without notice of Jangir Kaur being only entitled to maintenance from RSA No.278 of 1984 6 the land got by her in compromise ?OPD. 4. Whether the suit is not properly valued for purposes of court fee and jurisdiction ? OPD. 5. Whether the suit is not within limitation ? OPD. 6. Whether plaintiffs are estopped from filing the suit by their act and conduct ?OPD. 7. Whether defendant no.4 had become owner of the suit land by way of adverse possession ? OPD. 8. Whether the grandfather of the plaintiffs, defendant no.4 and the father of the plaintiffs were governed by the Punjab Customary Law in matters of succession, if so its effect ? OPP. 9. Whether defendant no.4 entered into any Karewa marriage with Harpal Singh after the death of her husband, namely, Bhag Singh ? OPP. 10. If issue no.8 is proved,even still defendant no.4 is entitled to succeed to the inheritance of her father-in-law to the extent of half share being the wife of the pre- deceased son of Bhag Singh (sic) Sucha Singh ? OPD. 11. Whether the plaintiffs have locus standi to file the suit ? OPD. 12. Relief.” The parties led their respective evidence, documentary as well as oral. After examining the evidence brought on record by both the parties, the learned trial court decided issues no.1 to 5, 8, 10 and 11 in favour of the RSA No.278 of 1984 7 plaintiffs and against the defendants. Issue no.6 was decided against the defendants and issue no.7 was decided against defendant no.4. No specific finding was given by the learned trial court on issue no.9,although it was held that the finding thereon would not make any difference about the position of defendant no.4, as she had been held not entitled to succeed to her father-in-law as an heir. Accordingly, the suit was decreed, vide judgement and decree dated 27.8.1979, by the learned Sub-Judge, Ist Class, Mansa. The sale deed dated 10.6.1977 was held to be null and void. Plaintiffs were declared entitled to take possession of the suit land from defendants no.1 to 3, however, after the death of Smt.Jangir Kaur-defendant no.4. Dissatisfied with the judgement and decree passed by the learned trial court,defendants filed an appeal before the learned lower appellate court. The learned lower appellate court, vide its order dated 4.8.1982, struck off the name of Smt.Jangir Kaur from the Memorandum of Appeal,as she had died during the pendency of the appeal because her legal heirs Gurmail Singh and Maghar Singh were already on record as respondents no.1 and 2 in the appeal before the learned lower appellate court. It is pertinent to mention here that during the pendency of their appeal, defendants no.1 to 3 were allowed to file their amended written statement. The learned first appellate court remanded the case under Order 41 Rule 25 of the Code of Civil Procedure (`CPC' for short), vide its order dated 14.3.1983 directing the defendants to file their amended written statement before the trial court on or before 31.3.1983. The learned trial court was further directed to allow an opportunity to the plaintiffs to file replication to the amended written statement. The learned trial court was RSA No.278 of 1984 8 also directed to frame additional issues and affording an adequate opportunity to the parties to lead their evidence. The learned trial court was directed to decide the said (additional) issues as well as issue no.9 and return its findings thereon. In compliance of the abovesaid remand order dated 14.3.1983, passed by the learned District Judge, Bhatinda, the learned trial court allowed defendants no.1 to 3, to file their amended written statement. Plaintiffs were granted an opportunity to file their replication and thereafter two additional issues i.e. Issue no.11-A and 11-B were framed, which read as under :- “11-A. Whether Jangir Kaur-had become full owner of the suit property in view of section 14(1) of the Hindu Succession Act, 1956 ? OPD. 11-B. Whether (sic) What is the effect of filing of the amended written statement after the date fixed ? OPD.” The learned trial court, vide its order dated 4.6.1983, decided issues no.9, 11-A and 11-B, in favour of the plaintiffs and against the defendants. The case was forwarded to the learned lower appellate court,where the first appeal of the defendants was pending decision, awaiting the report/order of the learned trial court on the above said additional issues as well as on issue no.9. The learned lower appellate court re-appreciated the evidence available on the record and vide its judgement and decree dated 28.9.1983, accepted the appeal of the defendants. Suit of the plaintiff was ordered to be dismissed setting aside the judgement and decree dated 27.8.1979, passed by the learned trial court. RSA No.278 of 1984 9 Aggrieved from the judgement and decree dated 28.9.1983, passed by the learned District Judge, Bhatinda, the instant appeal has been filed by the appellant before this court. After hearing the learned senior counsel for both the parties, the following substantial questions of law were formulated, vide order dated 25.11.2011 : i) Whether the deceased Jangir Kaur became full owner under Section 14(1) of the Hindu Succession Act, when she acquired the land on the basis of a compromise which created a life estate and prohibited the alienation? ii)Whether the lower appellate court has misinterpreted the compromise on the basis of which Jangir Kaur got 70 bighas of land for her life ? iii)Whether the finding of the lower appellate court regarding Karewa is based upon misreading of evidence ? iv)Whether the lower appellate court committed a patent error in not meeting the reasons given by the trial court when the trial court relied upon the judgement of Full Bench of this court in AIR 1977 Punjab and Haryana 341 ?” Mr.Sarjit Singh, learned senior counsel for the appellant, submits that Smt.Jangir Kaur, being the widowed daughter-in-law, was not entitled to succeed to the estate of her father-in-law Sucha Singh, who died in 1952, before coming into force the Hindu Succession Act, 1956(`Act of 1956' for short). He further submits that the Hindu Women's Rights to Property Act, 1937 (Act of 1937' for short') is not applicable in the present RSA No.278 of 1984 10 case because the parties were governed by custom. The learned senior counsel further submits that the learned first appellate court, while accepting the appeal of the defendants,illegally set aside the cogent findings of the learned trial court on issues no.1, 2, 9, 10 and 11-A. He also submits that as per the observations made by the learned lower appellate court, issues no.3, 4, 5, 6, 7, 8, 11-A and 11-B were since not pressed nor any argument was raised on behalf of either of the parties on these issues, the findings of the learned trial court thereon were affirmed. The learned senior counsel would further contend that Smt. Jangir Kaur had entered into a compromise dated 30.12.1983, Ex.P-1, with the plaintiffs restricting her claim only to the extent of 70 Bighas of land. In terms of compromise, the suit land was only for her maintenance during her life time, with a condition that she will not alienate or transfer this property. Thus, she had no right in law to execute the sale deed dated 10.6.1977 in favour of defendants no.1 to 3, the respondents herein. The learned senior counsel also contended that the present case, in view of its facts and circumstances, would be governed by the provisions of Section 14(2) of the Act of 1956. The learned senior counsel also submits that the Karewa marriage in the present case, would not improve the status of Smt. Jangir Kaur. Finally, the learned senior counsel for the appellant, submits that the impugned judgement and decree, passed by the learned lower appellate court may be set aside and the appeal may be allowed. The learned senior counsel relies upon the Full Bench judgement of this court reported as Smt.Jaswant Kaur Vs. Harpal Singh and others, AIR 1977 Punjab and Haryana 341. Per contra, Mr.J.R. Mittal, senior counsel for the respondents, submits that Sucha Singh was the last male holder, whose succession RSA No.278 of 1984 11 opened on his death in the year 1952. He further submits that it is an admitted fact between the parties that Sucha Singh died intestate and he did not put any restriction on the rights of Smt. Jangir Kaur, who was the widow of his pre-deceased son namely; Bhag Singh. He further submits that even if, Sucha Singh would have executed a Will, disinheriting Smt.Jangir Kaur or placing any restriction on her right of maintenance,that would have been totally insignificant, in view of the provisions of Section 14 of the Act of 1956. The learned senior counsel also contended that before passing of the Act of 1956, the parties were either governed by the Hindu Law or by the Custom. The sale by a female could have been challenged by the male descendants of Sucha Singh, under the custom, had suit land been ancestral. Similarly, under the Hindu Law, the sale by a female could have been challenged by the coparceners, only if, the suit land would have been ancestral in the hands of Sucha Singh. He further submits that the plaintiffs neither pleaded nor proved that the suit land was ancestral in the hands of Sucha Singh qua the plaintiffs. There is no issue framed by the learned trial court in this regard. The learned senior counsel further submits that the case of the plaintiffs is based solely on the compromise dated 30.12.1953, Ex.P- 1, which shows that Smt.Jangir Kaur was not seeking any concession from the plaintiffs, but she herself gave concession to them restricting her claim to the extent of 70 Bighas. He further submits that the respondents/defendants no.1 to 3 being vendees from Smt.Jangir Kaur- defendant no.4, vide sale deed dated 10.6.1977 for due consideration, they are bonafide purchasers. In terms of Ex.P-4 (jamabandi for the year 1972- 73), which is a relevant revenue document produced by the plaintiffs themselves, Smt.Jangir Kaur was recorded as full owner of the suit land, RSA No.278 of 1984 12 measuring 101 Kanals 1 Marla. Thus, the learned senior counsel for the respondents, would further submit that the respondents being bonafide purchasers,their right was also protected under Section 41 of the Transfer of Property Act. The learned senior counsel for the respondents, next contended that the sale by a female, after passing of the Act of 1956, cannot be challenged, she being the absolute owner under Section 14 of the Act of 1956. Thus, the suit of the plaintiffs would not have been maintainable. Regarding the compromise Ex.P-1, the learned senior counsel for the respondents would submit that it can be, at the most, treated as family settlement recognising the pre-existing right of maintenance of Smt.Jangir Kaur,which got enlarged and became absolute under Section 14(1) of the Act of 1956. He submits that right of maintenance of Smt.Jangir Kaur under Section 14(1) of the Act of 1956 was her absolute right and even if, there was any restriction on it, vide Ex.P-1, the same will be of no significance, in view of the provisions of Section 14(1) of the Act of 1956. To substantiate his argument, the learned senior counsel relies upon Mt. Chand Kaur and another Vs. Bhagwan Singh and another, AIR 1937 Lahore 612, Badri Pershad Vs. Smt. Kanso Devi, AIR 1970 SC 1963, Vaddeboyina Tulasamma and others Vs. Vaddeboyina Sesha Reddi (dead) by LRs, AIR 1976 SC 1944, Ram Sarup and others Vs. Smt.Patto and others, AIR 1981 Punjab and Haryana 68, Nazar Singh and others Vs. Jagjit Kaur and others, AIR 1996 SC 855(1), Smt.Beni Bai, Vs. Raghubir Prasad, AIR 1999 SC 1147, Shakuntla Devi Vs. Kamla & others, JT 2005 (4) SC 315, Smt.Ass Kaur (deceased) by LRs Vs. Kartar Singh (Dead) by LRs and others, 2007(3) RCR (Civil) 369 (SC) and Sri RSA No.278 of 1984 13 Ramakrishna Mutt rep. By Manager Vs. M. Maheswaran and others, 2010(4) RCR (Civil) 791 (SC) The learned senior counsel further submits that Ex.P-1 (compromise) dated 30.12.1953, did not grant the right of maintenance to Smt.Jangir Kaur for the first time, but it recognised her pre-existing right. He also submits that provisions of Section 14(2) of the Act of 1956,cannot be held to evaporate the provisions of Section 14(1) thereof. The learned senior counsel also submitted that the Full Bench judgement in Jaswant Kaur's case (supra) was a case of Will under Section 14(2) because the word `Will' is mentioned only under Section 14(2) and not under Section 14(1) of the Act of 1956, therefore, the judgement is distinguishable on facts and would not apply in the present case. The learned senior counsel for the respondents, also submitted that even if, semblance of right was there in favour of Smt.Jangir Kaur, the same got enlarged and became absolute under Section 14(1) of the Act of 1956. Concluding his arguments, the learned senior counsel for the respondents, submits that the appeal was without any merit and the same was liable to be dismissed. I have given my thoughtful consideration to the rival contentions raised by the learned senior counsel for both the parties and with their able assistance, have gone through the record of the case. Having carefully examined all the material aspects of the matter under the peculiar facts and circumstances of the case, besides in view of the codified as well as judge made law applicable thereto, this court is of the considered opinion that the present appeal is without any merit and is liable to be dismissed for more than one reasons to be recorded hereinafter. RSA No.278 of 1984 14 The basic issue in the instant appeal is, whether the present case would be governed under the provisions of Section 14(1) or Section 14(2) of the Act of 1956. Learned counsel for the appellant placed heavy reliance on the compromise dated 30.12.,1953 Ex.P-1, to contend that once Smt.Jangir Kaur had entered into the compromise restricting her right of inheritance only to the right of maintenance during her life time with further condition that she will not alienate the suit property, there was no scope for her to back out from the same, notwithstanding her right of inheritance under the Act of 1956. So far as the custom regarding Karewa marriage or inheritance by a widow of pre-deceased son is concerned, it was neither pleaded nor proved by either of the parties. Learned senior counsel for the appellant very fairly submitted that he would not press the issue regarding the Karewa marriage of Smt.Jangir Kaur because the same is not going to change the legal position. Leaned senior counsel for the appellant, while replying to the argument raised by learned senior counsel for the respondents, also relied upon the judgement of the Hon'ble Supreme Court rendered in Badri Persad Vs. Smt. Kanso Devi, AIR 1970 SC 1963. He further submitted that the judgements relied upon by the learned senior counsel for the respondents, are not applicable in the present case, as the same were liable to be distinguished on facts. After giving my due consideration to the contentions raised by learned senior counsel for the appellant, I find no force in any