RSA No. 2971 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2971 of 1984 Date of Decision: 13.07.2010 1. Devta Ram; 2. Atma Ram; both sons of Harpal Singh; 3. Rajnish Kumar; 4. Ved Parkash; both sons of Sh. Manphool; all residents of village Sainpal, Tehsil and District Sirsa. ... Appellants Versus 1. Smt. Dalip Kaur d/o Smt. Sant Kaur widow of Sh. Kehar Singh, son of Gulab Singh, resident of village Sainpal, Tehsil and District Sirsa. 2. Smt. Kishan Kaur d/o Smt. Sant Kaur r/o village Sainpal, District Sirsa. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Amit Jain, Advocate, for the appellants. Mr. Sanjiv Gupta, Advocate, for the respondents. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree dated 27.01.83, rendered by the Court of Senior Sub Judge, Sirsa, vide RSA No. 2971 of 1984 2 which, it decreed the suit of the plaintiff, and, the judgement and decree dated 15.11.84, rendered by the Court of Additional District Judge, Sirsa, vide which, it dismissed the appeal. 2. The facts, in brief, are that, Sant Kaur widow of Kehar Singh, was the owner of the land, situated in village Sainpal, Tehsil and District Sirsa. She had two daughters namely Tej Kaur and Dalip Kaur. Tej Kaur, was married to Harpal Singh, as his second wife, who already had two sons namely Devta Ram and Atma Ram, defendants (now appellants), from his first marriage. From the loins of Harpal Singh a son was born to Tej Kaur, who was adopted by Dalip Kaur. Tej Kaur, was murdered, in the year 1974, and criminal case under Sections 302 etc. was registered against Dalip Singh and others, who were convicted by the trial Court, but were acquitted by this Court. It was stated that, at that time, she was issueless. It was further stated that, Kehar Singh, owned some land, in village Bhawalpur (Pakistan), and, after partition of the Country, the land, in dispute, was allotted, to him. It was further stated that, after the death of Kehar Singh, the land, in dispute, was to be inherited by his wife Sant Kaur, and, daughters namely Tej Kaur and Dalip Kaur, but, the mutation in respect thereof, was sanctioned, in her (Sant Kaur's) favour only. Feeling aggrieved, a civil suit, was filed by her daughters, against her, wherein, she admitted their claim, and, as such, decree dated 09.06.70, was passed, in favour of Tej Kaur, regarding land, measuring 168 kanals 9 marlas, in dispute, whereas, the decree, in respect of other portion of the land, measuring 169 kanals 2 marlas, was passed, in favour of Dalip Kaur. It RSA No. 2971 of 1984 3 was further stated that, since the land, in dispute, had been inherited by Tej Kaur, from her father Kehar Singh, and, later on, she died issueless, the same, was inherited by Sant Kaur, as per the provisions of Section 15(2)(a) of the Hindu Succession Act, 1956. The defendants, were many a time asked, to admit the claim of the plaintiff, over the land, in dispute, but to no avail. Ultimately, a suit for declaration and possession was filed. 3. Devta Ram and Atma Ram, defendants put, in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was stated that, the succession to the estate of Tej Kaur, was to be regulated, as per the provisions of Section 15(1)(a) of the Hindu Succession Act, 1956, as the land, in dispute, devolved upon her, on the basis of decree dated 09.06.70 and not by way of natural succession. It was further stated that, as such, the defendants, became the owners of the land, in dispute, being her step-sons, as she died issueless. 4. Rajnish Kumar and Ved Parkash, defendants, filed a separate written statement, wherein, it was stated that, Harpal Singh, executed a valid Will, in their favour, bequeathing the land, in dispute, and, as such, they are the exclusive owners thereof. The remaining averments, were denied, being wrong. 5. On the pleadings of the parties, the following issues were struck:- (i) Whether the suit land was inherited by Smt. Tej Kaur from her father and as such the plaintiff is entitled to succeed to the RSA No. 2971 of 1984 4 estate of Smt. Tej Kaur on her death? OPP (ii) Whether the order of the Assistant Collector 1st Grade Sh. I.D. Kaushik, sanctioning the mutation of inheritance of Smt. Sant Kaur in the name of Harpal Singh is illegal and without jurisdiction in view of Section 25 of the Hindu Succession Act? OPP (iii) Whether the defendants have no right or authority to take the suit land even if the defendants No. 3 and 4 have a Will dated 22.10.78, from Harpal Singh in their favour? OPP (iv) Whether the suit land was obtained by Smt. Tej Kaur in Civil Court decree and as such it cannot be said to have come to her from her father? OPD (v) Whether the alleged conviction of Harpal Singh and the others by the Court of Ld. Additional Sessions Judge for murder of Smt. Tej Kaur has been set aside by the Hon'ble High Court and its effect? OPD (vi) Whether the appeal of Smt. Sant Kaur, plaintiff against the order of the Assistant Collector 1st Grade sanctioning the mutation has been dismissed by the Collector and its effect? OPD (vii) Whether the suit not maintainable in the present form? OPD (viii)Whether the land has not been correctly described and its effect? OPD (ix) Whether the defendants are entitled to special costs? OPD (x) Relief. 6. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of the RSA No. 2971 of 1984 5 plaintiff. 7. Feeling aggrieved, an appeal, was preferred by the defendants (now appellants), which was dismissed, by the Court of Additional District Judge, Sirsa, vide judgement and decree dated 15.11.84. 8. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the appellants. 9. Sant Kaur, respondent, died and her legal representatives were brought on record. 10. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 11. The following substantial question of law arises, in this appeal, for the determination of this Court:- Whether the Courts below, recorded perverse findings, on account of misreading and misappreciation of evidence, and law, on the point, that the heirs of the father of Tej Kaur (now deceased), shall be entitled to succeed to her property, as per the provisions of Section 15(2)(a) of the Hindu Succession Act, 1956, though, the same, was not inherited by her, from her father or mother, but, devolved on her, on the basis of decree, suffered by Sant Kaur, her mother, in her favour? 12. The Counsel for the appellants, submitted that, Kehar Singh husband of Sant Kaur, plaintiff/respondent (now deceased), died, in 1927. He further submitted that, according to the Hindu Law, prevailing at that time, which was applicable, to the parties, Sant Kaur, widow, had only limited interest, in the property of her husband, and, RSA No. 2971 of 1984 6 could not succeed, to the same. He further submitted that, she remained, in possession of the property, in dispute, throughout, until the Hindu Succession Act, 1956, came into force, and, thus, by operation of law, she became the full-fledged owner. He further submitted that, under these circumstances, it could not be said, that Sant Kaur, widow, inherited the property of Kehar Singh, at the time of his death. He further submitted that, in 1970, Tej Kaur and Dalip Kaur daughters of Sant Kaur, filed a suit, on the basis of settlement, against Sant Kaur, as a result whereof, decree dated 09.06.70, was passed, in favour of Tej Kaur, regarding land, measuring 168 kanals 9 marlas, whereas, the decree, in respect of other portion of the land, measuring 169 kanals 2 marlas, was passed, in favour of Dalip Kaur, her other daughter. He further submitted that, as such, Tej Kaur and Dalip Kaur daughters of Sant Kaur, did not inherit the property, by way of natural succession, which could only open after the death of said Sant Kaur, but, on the basis of the decree, referred to above. He further submitted that, as such, Tej Kaur, became the exclusive owner of the property, in dispute. He further submitted that, Tej Kaur, married Harpal Singh, who had already two sons from his first marriage, and, one son, from her womb. He further submitted that, it was the admitted case of the parties, that the son of Tej Kaur, who was born, to her, from the loins of Harpal Singh, was adopted by Dalip Kaur, her other sister. He further submitted that, since Sant Kaur, became full-fledged owner of the property, in dispute, by operation of law, and, not by way of natural succession, and, Tej Kaur, became the owner of the property, in RSA No. 2971 of 1984 7 dispute, not by way of natural succession, but, on the basis of decree aforesaid, it being her exclusive ownership, on her death, her property was to be inherited by the heirs of her husband, as per the provisions of Section 15(1)(b) of the Hindu Succession Act 1956, and, not according to Section 15(1)(2)(a) of the Act ibid. He also placed reliance, on Balwant Singh Vs. Mahabir Singh, 1970, PLJ, 148, LPA, decided by a Division Bench of this Court, in support of his contentions. He further submitted that, as such, the judgements and decrees of the Courts below, holding that, the property of Tej Kaur, shall be inherited by the heirs of her father, being perverse and illegal, are liable to be set aside. 13. On the other hand, the Counsel for the respondents, submitted that, Kehar Singh husband of Sant Kaur, died, in 1927, and, she according to the un-codified Hindu Law, prevalent at that time, governing the parties, only had limited interest, in his property, yet, she remained in possession thereof, until Hindu Succession Act, 1956, came into being, and, as such, became the full-fledged owner thereof. He further submitted that, as such, the property, was inherited by Sant Kaur, from Kehar Singh. He further submitted that, despite the fact, that Sant Kaur, suffered decree dated 09.06.70, in favour of Tej Kaur and Dalip Kaur, her two daughters, in respect of the land, in dispute, which only recognized their pre-existing right, in the land, in dispute, that did not mean, that she (Tej Kaur), did not inherit the property, from her mother, which she got from her father. He further submitted that, under these circumstances, the Courts below, were right, in RSA No. 2971 of 1984 8 holding, that the heirs of the father of Tej Kaur, were entitled to inherit her property, on her death, according to Section 15(1)(2)(a) of the Hindu Succession Act, 1956. He also placed reliance, on Bhagat Ram (Dead) Vs. Teja Singh (1999) 4, SCC, 86, and, V. Dandapani Chettiar Vs. Balasubramanian Chettiar (Dead) by LRs. and others (2003), 6, SCC, 633, in support of his contentions. He further submitted that, the judgements and decrees of the Courts below, being neither perverse, nor illegal, are liable to be upheld. 14. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal, is liable to be accepted, for the reasons to be recorded, hereinafter. Undisputedly, the land, in dispute, at one time, was the ownership of Kehar Singh, husband of Sant Kaur. There is, no dispute, between the parties, that he died, in the year 1927, and, the parties, being governed, by the un-codified Hindu Law, at that time, his widow only had a limited interest, in his property, as she could not succeed to the same, at that time. There is also, no dispute, with regard to the factum, that she remained in possession of the property, in dispute, until the Hindu Succession Act, 1956, came into being. She, thus, became full-fledged owner of the property, in dispute, by operation of law. In the plaint itself, it was admitted, by the plaintiff, that Tej Kaur and Dalip Kaur, filed Civil Suit No. 553, dated 09.04.70, and, their claim, was admitted by Sant Kaur, as a result whereof, Tej Kaur, was declared to be the owner in possession of the property, in dispute vide decree dated 09.06.70. Tej Kaur had no pre-existing right RSA No. 2971 of 1984 9 in the property of Sant Kaur. Under these circumstances, it could not be said, that Tej Kaur, inherited the land, in dispute, by way of natural succession. At the time of her death Sant Kaur was not the owner of any property, as she had divested herself of her property, by way of decree dated 09.06.70, aforesaid, during her life time. According to Section 15(2) of the Hindu Succession Act, 1956, any property, inherited by a female Hindu, from her father or mother, shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs, referred to, in Sub-Section (1), in the order, specified therein, but, upon the heirs of the father. The words 'any property, inherited by a female Hindu, from her father or mother', appearing, in Section 15(2) of the Hindu Succession Act, 1956, are very significant. Had the property, been inherited, by Tej Kaur, by way of natural succession, from her mother or father, the matter, would have been different. As stated above, she became the owner of the property, in dispute, on the basis of the decree dated 09.06.70. Under these circumstances, the Courts below, were wrong, in coming to the conclusion, on account of misreading and misappreciation of evidence, and law, on the point, that Tej Kaur, succeeded to the property, in dispute, through her father, and, as such, heirs of her father were entitled to succeed to her property, on her death. The concurrent findings of fact, recorded by the Courts below, in this regard, being perverse and illegal, are liable to be set aside. The submission of the Counsel for the appellants, carries substance, and stands accepted. RSA No. 2971 of 1984 10 15. Coming to V. Dandapani Chettiar's, and, Bhagat Ram (Dead's) cases (supra), relied upon, by the Counsel for the respondents, it may be stated here, that the facts thereof, are clearly distinguishable, from the facts of the instant case, as would be discussed, hereinafter, and, as such, no help, can be drawn, by the Counsel for the respondents therefrom. In V. Dandapani Chettiar's case (supra), Rajathiammal was proved to have pre-existing right in the property, the subject matter of that litigation. In these circumstances, it was held that the compromise decrees, in her favour, only recognized her pre-existing right, in the property, and, as such, the same did not change the nature of succession. It was, thus, held that she succeeded to the property of her mother and, as such, the heirs of her father shall succeed to her property, on her death, as she did not leave behind her son or daughter or children of her pre-deceased son or daughter. In the instant case, as stated above, Tej Kaur, did not have any pre-existing right in the property of her mother, which she (mother) inherited from her husband. In Bhagat Ram (Dead's), case (supra), the property of the mother did not devolve on her daughters, by way of decree. They succeeded to the property, through their father, by way of natural succession. In these circumstances, on the death of one sister, who died issueless, it was held by the Apex Court, that the other sister, who was the heir of the father, would succeed to her property. In this view of the matter, the facts of both these authorities, being clearly distinguishable, ratio of law, laid down therein, does not apply, to the facts of the instant case. The submission of the Counsel for the respondents, thus, being without RSA No. 2971 of 1984 11 merit, must fail, and the same stands rejected. 16. The judgements and decrees of the Courts below, being not based, on the correct reading and due appreciation of evidence, as also law, on the point, suffer from illegality and perversity, warranting the interference of this Court. The same, are, thus, liable to be set aside. 17. The substantial question of law, depicted above, is answered, in favour of the appellants. 18. For the reasons recorded above, the instant Regular Second Appeal, is accepted with costs. The judgements and decrees of the Courts below, are set aside. The suit of the plaintiffs shall stand dismissed. 13.07.2010 (SHAM SUNDER) Amodh JUDGE