RSA No.1168 of 1984 (O&M) -1- ******* IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1168 of 1984 (O&M) Date of decision:20.04.2011. Parsin Kaur (dead) through her L.Rs. and another ...Appellants Vs. Apar Singh and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Arun Jain, Senior Advocate, with Mr. Jaivir Chandail, Advocate, for the appellants. Mr. P.K.Gupta, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. The following substantial questions of law have been raised before this Court by learned counsel for the appellants: - i) whether Rachhpal Kaur, who was admittedly in possession of the suit land on the date of coming into force of the Act, had become full owner of the suit land in terms of Section 14(1) of the Act? and ii) whether the learned First Appellate Court has committed an error of law in misreading the evidence on record in order to hold the property to be ancestral and parties being governed by custom on the basis of alleged admission of the defendants which is otherwise not available on record? The defendants are in second appeal against the judgment and decree of the learned First Appellate Court by which judgment and decree of the learned Trial Court has been reversed and the suit of the plaintiffs has been decreed. In order to appreciate the controversy, it would be appropriate to know as to who are the parties to the suit and for that purpose, pedigree table RSA No.1168 of 1984 (O&M) -2- ******* given in the plaint is reproduced as under: - Harnam Singh | ---------------------------------------------------------------- | | Rachhpal Kaur (widow) Harbans Kaur (widow) | | ------------------------------------- --------------------------------- | | | | | Amrit Kaur Parsin Kaur Gurbachan Kaur Apar Singh (son) Kuldip Singh (son) (daughter) (daughter) (daughter) (Plaintiff No.1) (Plaintiff No.2) (Deft. No.1) (Deft. No.2) (Deft. No.3) The plaintiffs are the sons of Harbans Kaur, who had filed a suit for declaration that they are the owners in possession of land measuring 42 Kanals 07 Marlas, situated in village Gago Mahal, Tehsil Ajnala, District Amritsar and had sought consequential relief of permanent injunction to restrain the defendants from interfering in their possession. The case set up by the plaintiffs is that the land in dispute was ancestral property of Harnam Singh who has been governed by Customary Law of Amritsar District which was prevalent at that time for the purpose of succession and alienation. After the death of Harnam Singh, both the widows, namely, Harbans Kaur and Rachhpal Kaur, entered into a mutual agreement dated 05.08.1945, as per which Rachhpal Kaur admitted that she would hold the land in dispute as her life estate. After the death of Harnam Singh, the land in dispute was mutated in favour of the plaintiffs as owners vide mutation No.683 dated 06.06.1945 and later on, vide mutation No.1415 dated 24.09.1959, Rachhpal Kaur, mother of the defendants was granted limited estate till her marriage or death. After the death of Rachhpal Kaur on 04.08.1973, as she was holder of life estate in the land in dispute, the plaintiffs claimed to have become owners in possession of the land in dispute as they claimed that they had taken possession on 04.08.1973. On this premise, declaration was sought about their ownership and they also sought injunction to restrain the defendants from interfering in their possession. In the written statement filed by defendant Nos.1 and 2, the nature of the land to be ancestral and the parties being governed by the Customary Law of Amritsar District was denied. The agreement dated 05.08.1945 was RSA No.1168 of 1984 (O&M) -3- ******* denied, rather it was alleged that since Rachhpal Kaur was in possession of the land in dispute on 04.08.1973, therefore, she became absolute owner thereof in terms of Section 14(1) of the Hindu Succession Act, 1956 [for short “the Act”]. It was also alleged that she had already executed a Will dated 08.10.1971 in favour of defendant Nos.1 and 2, by virtue of which they have become owners of the land in dispute. The mutation No.683 dated 06.06.1945 and the other mutation were also denied and it was specifically denied that at the time of death of Harnam Singh, the parties were governed by the Customary Law of Amritsar District. The plaintiffs filed replication to the written statement filed by defendant Nos.1 and 2 and reiterated the stand taken in the plaint. After the pleadings were over, the learned Trial Court framed the following issues: - “1. Whether the plaintiffs are owners and in possession of the land in suit? 2. Whether Rachhpal Kaur, mother of the defendants was given only life estate in the property in dispute?OPP. 3. Whether Rachhpal Kaur transferred the land in suit to the defendants by a valid gift? 4. Relief.” The learned Trial Court discussed issues Nos.1 and 2 together in detail. The plaintiffs had set up a Will Ex.PA to assert that Harnam Singh had given only life estate in the suit land to Rachhpal Kaur, but the said Will was not proved. They had also relied upon agreements, Mark `A' and `B', but remained unsuccessful and ultimately, the learned Trial Court recorded the finding that “there is no dispute that the parties are Hindus. There is also no dispute that Smt. Rachhpal Kaur died on 04.08.1973 and till her death she remained in possession of the suit land. The plaintiffs have not been able to lead any evidence that could help them to establish with certainty that Smt. Rachhpal Kaur widow of Harnam Singh who was the original owner of the suit land gave this land to Smt. Rachhpal Kaur only for her life. From the compectus of rulings referred to above the principle that emerges is that if a widow was in possession of certain land that may have been given to her only RSA No.1168 of 1984 (O&M) -4- ******* as a life estate but by coming into operation of Hindu Succession Act, 1956 she becomes absolute owner thereof. The plaintiffs have tried to assert that the parties were governed by customary law of Amritsar district but there is not sufficient and cogent evidence on the file in that respect. As against this, there is plethora of evidence on the file that the parties were Hindus and as such are fully covered by the provisions of Hindu Succession Act in the matters of successions. In the circumstances, I am of the considered view that Rachhpal Kaur at the time of her death was owner in possession of the suit land”. While deciding issue No.3, the learned Trial Court had held that by gift deed Ex.D1, Rachhpal Kaur had transferred her land measuring 42 Kanals 07 Marlas in favour of defendant Nos.1 and 2 and then recorded a finding to the effect that “in view of the other overwhelming evidence on the file, there is no dispute that Smt. Rachhpal Kaur executed gift deed Ex.D1 in favour of Parsin Kaur and Amrit Kaur defendants. As already given above, Smt. Rachhpal Kaur was the full owner of the immovable property gifted by her. The land gifted by Smt. Rachhpal Kaur to Smt. Parsin Kaur & Amrit Kaur is indisputably the same which is the subject matter of the instant suit. This gift deed complies with the requirements of a valid gift deed. The gift deed relates to immovable property. As per evidence, this gift deed was executed by Smt. Rachhpal Kaur voluntarily and without consideration. As already given above, the donees accepted the gift at the time of its execution. As this gift deed related to immovable property, it was also got duly registered. This gift deed was thumb marked by the donor and attested by three attesting witnesses. In the circumstances, it can only be said that the gift deed Ex.D1 satisfy all the requirements of a valid gift”. Aggrieved against the judgment and decree of the learned Trial Court, the plaintiffs filed first appeal. During the pendency of the appeal, the learned First Appellate Court framed an additional issue on 27.03.1982 to the effect that “Whether the land in suit in the hands of Harnam Singh was ancestral of the plaintiffs”? The learned First Appellate Court also framed following three more additional issues on 14.10.1983: - “a) Whether Harnam Singh executed a valid Will on 17.07.1945 in favour of Rachhpal Kaur RSA No.1168 of 1984 (O&M) -5- ******* giving her a life estate only? b) Whether the defendants are estopped from denying `the execution, factum and validity of the Will? c) Whether Rachhpal Kaur executed a valid gift in favour of the defendants?” The learned First Appellate Court, while deciding the first additional issue about the ancestral nature of the property, had observed that the Trial Court had reported that the land was ancestral and the learned counsel for both the parties admitted the same to be correct, therefore, it was held to be ancestral, whereas in para No.6 of its judgment, it was observed that against the report of the learned Trial Court by which the land in dispute was held to be ancestral, the defendants submitted their objections, therefore, it is not understood as to how the learned First Appellate Court had observed that the defendants have admitted the land in dispute to be ancestral. The additional issues framed on 14.10.1983, namely, (a), (b) and (c), referred to hereinabove, were discussed by the learned First Appellate Court together and held that the Will set up by the plaintiffs (Ex.PA) dated 17.07.1945 was not duly executed by Harnam Singh giving only life estate to Rachhpal Kaur. The learned First Appellate Court, however, decreed the suit only on the ground that Harnam Singh died before passing of the Act and the parties had agreed that they would be governed by custom. The plaintiffs, being sons of Harnam Singh, thus, had succeeded as per Customary Law compiled by Sir W.H.Rattigan, according to which, the plaintiffs, being the sons of the other widow of Harnam Singh, had already succeeded to the property which was ancestral in nature and Rachhpal Kaur, who was given only life estate, could not have alienated it and after her death, it was to be reverted back to the plaintiffs to which they have set up their claim in the present suit. Assailing the judgment and decree of the learned First Appellate Court, learned counsel for the appellants has submitted that a wrong finding of fact has been recorded with regard to admission of the defendants in respect of nature of land and also the custom. He submitted that the defendants have never admitted that the land in dispute was ancestral in the hands of Harnam RSA No.1168 of 1984 (O&M) -6- ******* Singh and had never admitted that they are governed by custom. In this regard, he has referred to the written statement filed by defendant Nos.1 and 2 in which para No.1 on merits specifically deals with the denial about the ancestral nature of the property in dispute and also about the custom governing the parties in dispute with regard to succession. He also submitted that on the basis of pleadings before the Trial Court, no issue was claimed by the plaintiffs with regard to custom and a specific finding has been recorded by the Trial Court that no evidence has been led to prove that the parties are governed by custom. He further submitted that no issue was claimed regarding ancestral nature of the property before the Trial Court which was though claimed before the First Appellate Court after having lost the case and the same was contested by the defendants, but the learned First Appellate Court had decided this issue about the nature of the suit property on the basis of admission and regarding the custom, which was though not in issue, was also decided on the basis of admission. Learned counsel for the appellants has also submitted that mere pleadings of a custom in the plaint is not sufficient, rather it has to be proved also by leading cogent evidence. He further submitted that if Rachhpal Kaur was found to be in possession of the land in dispute till 1973, then the matter is governed by Section 14(1) of the Act, by virtue of which she would have become absolute owner just after the enforcement of the Act and was entitled to alienate the property by way of gift about which no finding has been recorded by the learned First Appellate Court. Opening his submissions, learned counsel for the appellants has submitted that the plaintiffs had admitted in the plaint that they had taken possession of the land in dispute from Rachhpal Kaur on 04.08.1973. It is also a fact that in the plaint they had not pleaded unregistered Will dated 17.07.1945 by which they had tried to show that Harnam Singh, who had died on 18.07.1945, had given only limited rights to Rachhpal Kaur till her life in order to bring her case within the purview of Section 14(2) of the Act in which they have been miserably failed before both the Courts below. He also submitted that the plaintiffs have tried to generate another instrument, namely, the agreement dated 05.08.1945, in order to create life estate in the hands of Rachhpal Kaur with that document again in order to bring her case within the RSA No.1168 of 1984 (O&M) -7- ******* ambit of Section 14(2) of the Act, but that document also has not been accepted by the Courts below. He, thus, submitted that in the absence of any instrument, which could bring the case of Rachhpal Kaur within the four corners of Section 14(2) of the Act, her being in possession of the land in dispute even after the coming into force of the Act till 1973, brings her case within the definition of Section 14(1) of the Act. In this regard, it would be relevant to refer to Section 14 of the Act, which is reproduced as under: - “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 movable and immovable 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 the 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.” In reply, learned counsel for the respondents has submitted that though Section 4 of the Act abrogated all the rules of law of succession hitherto applicable to Hindus, whether by virtue of any text or rule of Hindu law in respect of all matters dealt within the Act as the Act supersedes any other law RSA No.1168 of 1984 (O&M) -8- ******* contained in any Central or State Legislation in force immediately before it came into force insofar as such legislation in consistent with the provisions contained in the Act, but if the property in dispute had already been acquired by the plaintiffs by way of succession in terms of the custom before coming into force of the Act, as held by the learned First Appellate Court, the defendants would not get any right by virtue of gift deed executed by Rachhpal Kaur in 1971 in their favour as the property in dispute would revert back to the plaintiffs, even if it was in her possession till 1973. I have heard both learned counsel for the parties and perused the record with their able assistance. As per the pleaded case of the plaintiffs, there is no dispute with regard to relationship of Rachhpal Kaur with Harnam Singh. The case set up by them is that the property in dispute was ancestral and the parties are governed by custom. On 05.08.1945, by way of an agreement between Rachhpal Kaur and Harbans Kaur, both widows of Harnam Singh, Rachhpal Kaur was given life estate and the land in dispute, after the death of Harnam Singh, was mutated in favour of the plaintiffs as his heirs on 06.06.1945 and Rachhpal Kaur was given limited estate vide mutation No.1415 dated 24.09.1959. Admittedly, Rachhpal Kaur remained in possession of the land in dispute till her death on 04.08.1973 when the plaintiffs took possession. It was not a pleaded case of the plaintiffs that there was an unregistered Will dated 17.07.1945 purported to have been executed by Harnam Singh on a day before his death on 18.07.1945. The said Will is tried to be set up during trial without there being any issue framed in that regard or any issue with regard to the nature of the property in dispute or the parties being governed by custom. In any case, there is a complete denial by the defendants in their written statement about nature of the suit land being ancestral or the parties being governed by custom. When the Trial Court did not agree with the Will Ex.PA by which the plaintiffs wanted to bring the case of the defendants within the definition of Section 14(2) of the Act and also when the learned Trial Court did not agree with the story of agreements, Mark `A' and `B', by which Rachhpal Kaur was allegedly given life estate so as to be held that by virtue of those instruments she was given only life estate in terms of Section 14(2) of the Act and when the learned Trial Court RSA No.1168 of 1984 (O&M) -9- ******* agreed to the disposition of the property in dispute by Rachhpal Kaur by way of gift in favour of her daughters (defendants) and had also observed that there is no sufficient and cogent evidence on file to prove that the parties are governed by custom and the suit was dismissed, a new case was set up before the learned First Appellate Court by seeking an additional issue on 27.03.1982 with regard to the nature of the land and additional issues on 14.10.1983 with regard to Will dated 17.07.1945. The learned First Appellate Court though did not agree with the Will dated 17.07.1945 and also the agreement set up by the plaintiffs, meaning thereby, the case was not found to be governed by Section 14(2) of the Act, yet the learned First Appellate Court decreed the suit of the plaintiffs by observing that though the record of the learned Trial Court on issue of ancestral nature of the land in dispute was controverted, yet it was admitted by the defendants and also that custom was denied in the written statement yet it was alleged to be admitted and decreed the suit. To my mind, the finding recorded by the learned First Appellate Court are totally erroneous as there is no admission on the part of the defendants shown to the Court by the learned counsel for the plaintiffs and in view thereof the present case is fully covered by the provisions of Section 14(1) of the Act, according to which if a female Hindu is in possession of the property in dispute, whether acquired before or after the commencement of the Act, she is held to be a full owner and not a limited owner and since in the present case, Rachhpal Kaur was admittedly in possession of the land in dispute in 1973, i.e. till her death, she had already acquired full ownership rights and had already dispose it of by virtue of gift deed Ex.D1, which has not even been discussed by the learned First Appellate Court in its judgment. Hence, the questions of law, which have been framed by learned counsel for the appellants, are found to be substantial and are, thus, decided in their favour accordingly and as such, the present appeal is allowed by setting aside the judgment and decree of the learned First Appellate Court. The parties to the case, in the peculiar facts and circumstances, are directed to bear their own costs. April 20, 2011. (Rakesh Kumar Jain ) vinod* Judge