IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.1128/2006 Reserved on:6.8.2008 Decided on:25.8.2008 Bhoop Singh. …Petitioner. Versus Financial Commissioner (Appeals) and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes For the petitioner : Pt. Om Parkash Sharma, Advocate. For the Respondent : Mr. Rajinder Dogra, Additional Advocate General with Ms. Shubh Mahajan, Deputy Advocate General for respondents No.1 and 6. Mr. G.D. Verma, Senior Advocate with Mr. Romesh Verma, Advocate for respondents No.2 to 5. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition, as gathered from the pleadings of the parties, are that one Sh. Gokul was the last male holder of the property. Shiba was the son of Gokul, who pre- deceased him and left his widow Mahanti Devi. After the death of Gokul, his widow Ghungi succeeded to the property. The mutation was effected in the name of Ghungi. She made a gift of the property in favour of Sh. Mangat Ram, predecessor-in-interest of respondents No.2 to 5. The 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 predecessor-in-interest of the petitioner, Sh. Hari Singh and his brother Khemdi sons of Kundan, real brother of Gokul filed a suit for declaration challenging the gift made by Ghungi in favour of Mangat Ram. A decree was passed in favour of Hari Singh and Khemdi in the year 1927. The donee Mangat Ram retransferred the property in favour of Ghungi and the mutation was effected in her favour on May 29, 1930. The name of Mahanti was also added as owner of the land on 16.10.1931. One half share was mutated in favour of Mahanti. Smt. Ghungi and Mahanti gifted part of the land in favour of predecessor-in-interest of respondents No.2 to 5 Sh. Mangat Ram on 1.9.1939. Another part of the land was gifted by Smt. Ghungi in favour of Mangat Ram on 30.9.1948. The third gift was made by Mahanti in respect of part of the land on 3.5.1949 in favour of Mangat Ram. The fourth gift was made by Mahanti in favour of Mangat Ram in respect of part of the property on 25.4.1956. Ghungi died in the year 1949. It was on 20.10.1957 that petitioner son of Sh. Hari Singh and Khemdi filed a suit for declaration that the four gifts would not effect their reversionary rights after the death of Mahanti. The suit was resisted by Mangat Ram. Mahanti did not put in appearance and was proceeded exparte. The primary stand of the Mangat Ram was that Ghungi was the full owner of the property and Bhup Singh and Khemdi had no locus standi to file the suit after coming into force the Hindu Succession Act, 1956. The learned Senior Subordinate Judge dismissed the suit on 26.12.1958. The petitioner and Sh. Khemdi filed an appeal before the learned District Judge, Kangra at Dharamshala. The learned District Judge accepted the appeal and set aside the judgment and decree passed by the learned Senior Subordinate Judge on 18.1.1971. Feeling aggrieved by the judgment and decree dated 18.1.1971 Sh. Mangat Ram predecessor in interest of respondents No.2 to 5 filed a Regular Second Appeal before 3 this Court bearing RSA No. 36/71. The learned Single Judge dismissed the Regular Second Appeal on 27.11.1973. An application, preferred by appellants seeking certificate of fitness under clause 10 of the Letter Patents was rejected by the learned Single Judge on 11.9.1974. The petitioner filed an application on 16.9.1991 before the Assistant Collector 1st Grade, Jaisinghpur for correction of revenue entries and for cancellation of mutation No. 26 regarding gift sanctioned on 26.9.1988 of Tika Sadda, Mauza Alampur, Tehsil Jaisinghpur. It transpires from the record that after the judgment rendered by this Court in RSA No. 36/71 dated 27.11.1973, Mahanti executed a gift in favour of respondents No.2 to 5 on 19.9.1988 which was registered on 20.9.1988. The mutation was sanctioned on 26.9.1988. The AC-Ist Grade accepted the application and sanctioned mutation No. 61 on 25.10.1993. Respondents No. 2 to 5 preferred an appeal against mutation No. 61 sanctioned on 25.10.1993 before the Collector, Sub Division, Jaisinghpur. The appeal was accepted by the Collector, Sub Division, Jaisinghpur on 30.6.1999. The mutation No. 61 attested on 25.10.1993 was set aside. The petitioner preferred an appeal against this order before the Deputy Commissioner exercising the powers of Commissioner on 19.7.1999. The same was rejected by the Additional Deputy Commissioner-cum-Commissioner, Kangra at Dharamshala on 29.8.2002. He preferred a revision petition under section 17 of the Himachal Pradesh Land Revenue Act, 1954 against the order dated 29.8.2002 before the Financial Commissioner (Appeals). The Financial Commissioner (Appeals) dismissed the revision petition on 25.7.2006. The petitioner has challenged the order dated 25.7.2006. PT. Om Prakash Sharma, Advocate had strenuously argued that orders dated 30.6.1999 (Annexure P-6), 29.8.2002 (Annexure P-7) and 25.7.2006 (Annexure P-8) are not sustainable in the eyes of law. He also 4 contended that the order passed by the AC-Ist Grade on 25.10.1993 is liable to be restored. He further contended that the revenue authorities could not go beyond the judgment rendered by this Court in RSA No. 36/71 dated 27.11.1973. Mr. G.D. Verma, Senior Advocate had supported the orders dated 30.6.1999, 29.8.2002 and 25.7.2006. He further contended that the orders are in conformity with the provisions of section 14 of the Hindu Succession Act, 1956. I have heard the learned counsel for the parties and perused the record carefully. What emerges from the facts enumerated hereinabove is that the predecessor-in-interest of petitioner, Sh. Hari Singh and Kundan, his uncle, had filed a suit challenging the gift made by Smt. Ghungi in favour of the predecessor-in-interest of respondents No.2 to 5. A decree was passed in favour of the predecessor-in-interest of the petitioner and Khemdi in the year 1927. The predecessor-in-interest of respondents No.2 to 5 had re-transferred the property in favour of Ghungi and mutation was effected in her favour on 29.5.1930. The name of Mahanti was added as owner of the land. On 1.9.1939 Ghungi and Mahnati gifted part of the land in favour of Mangat Ram. Another part of land was gifted by Ghungi in favour of Mangat Ram on 30.9.1948. The third gift was made by Mahanti in respect of part of land on 3.5.1949 in favour of Mangat Ram and fourth gift was made by Mahanti in favour of Mangat Ram on 25.4.1956. The petitioner and Sh. Khemdi, his brother, filed a suit for declaration to the effect that the gifts would not effect their reversionary rights after the death of Mahanti. The suit was contested by the predecessor-in-interest of respondents No.2 to 5 on the ground that Ghungi was the full owner of the property and the plaintiffs had no locus 5 standi to file the suit after coming into force the Hindu Succession Act, 1956. He claimed that he was the sole heir of Mahanti and the suit for declaration was not maintainable against him. The suit was dismissed by the learned Senior Subordinate Judge on 26.12.1958. The appeal preferred against the judgment dated 26.12.1958 by the petitioner and Khemdi was accepted by the District Judge on 18.1.1971. A Regular Second Appeal bearing No. 36/71 by Mangat Ram was dismissed by the learned Single Judge on 27.11.1973. It will be apt at this stage to take note of the reasoning of the learned Single Judge in his judgment dated 27.11.1973 dealing with the issue whether Mahanti had acquired full ownership rights under section 14 of the Hindu Succession Act, 1956 or not. The learned Single Judge has categorically held that four gifts were completed before 25.4.1956 and the Hindu Succession Act, 1956 came into force on 17.6.1956. Mahnati was a limited owner of the property, she could not gift her title in favour of Mangat Ram. When the Hindu Succession Act, 1956 came into force, the property was not possessed by her and she did not become its absolute owner. The learned Single Judge had observed that alienation by a widow prior to the coming into force of the Act, whereby she is deprived of possession, does not entitle her to get absolute ownership under section 14 (1) of the Hindu Succession Act, 1956. The learned Single Judge had further observed that the gifts had been made in favour of Mangat Ram and he was in lawful possession as long as Mahanti was alive. Since Mahanti was not in possession of any property, she could not make her title absolute. The learned Single Judge has dealt with the independent right of Mangat Ram. His Lordship has held that he could not be considered the heir of deceased Gokul. He is the illegitimate son of his pre-deceased son’s wife Mahanti. When Mahanti dies, the succession would open to Gokul’s legal heir on her death. 6 Pt. Om Prakash Sharma had vehemently argued that once the judgment rendered by this Court in RSA No. 36/71 on 27.11.1973 had attained the finality, Smt. Mahanti could not gift the property on 19.9.1988 in favour of Sh. Mangat Ram, predecessor-in-interest of respondents No.2 to 5. His further contention was that the revenue authorities misconstrued the judgment of this Court delivered in RSA No. 36/71 while sanctioning mutation No. 26 on 26.9.1988. It was in this backdrop that the application for correction of revenue entries and cancellation of mutation No. 26 dated 26.9.1988 was filed before the Assistant Collector-IInd Grade on 16.9.1991. He accepted the application and sanctioned mutation No. 61 on 15.10.1993 in favour of the petitioner. However, in appeal, the Collector, Sub Division, Jaisinghpur preferred by respondents No.2 and 3, set aside the mutation No. 61 dated 25.10.1993. The Collector, Sub Division, Jaisinghpur allowed the appeal in view of the provisions of section 14 (1) of the Hindu Succession Act, 1956. According to him, Mahanti had become absolute owner of the property after coming into force the Hindu Succession Act, 1956 and she could make valid gift in favour of Mangat Ram, which was registered on 20.9.1988. The Additional Deputy Commissioner exercising the powers of Commissioner, Kangra at Dharamshala without a speaking order rejected the appeal on 29.8.2002 preferred by the petitioner. The Financial Commissioner (Appeals) without taking into consideration the true import of the judgment dated 27.11.1973 passed in RSA No. 36/71 has endorsed the decision of the Additional Deputy Commissioner exercising the powers of Commissioner, Kangra at Dharamshala. The learned Single Judge of this Court, as noticed above, in his judgment has categorically held that all the four gifts were completed before 25.4.1956 and the Hindu Succession Act, 1956 came into force 7 with effect from 17.6.1956. Mahanti was neither in possession of the land nor she had any title to the property when the Hindu Succession Act, 1956 came into force on 17.6.1956. She was not entitled to get absolute ownership under section 14 (1) of the Hindu Succession Act, 1956. The gifts had been made in favour of Mangat Ram and he was in lawful possession as long as Mahanti was alive. It was incumbent upon the Collector, Sub Division, Jaisinghpur to have taken into consideration the judgment of this Court rendered in RSA No. 36/71 decided on 27.11.1973. He has exceeded his jurisdiction by not taking into consideration the judgment dated 27.11.1973 rendered in RSA No. 36/71 in its letter and spirit. He has made out a new case for respondents No. 2 to 5 on the basis of gift deed executed by Mahanti in favour of Mangat Ram on 19.9.1988 registered on 20.9.1988. The mutation No. 26 could not be attested in favour of Mangat Ram on the basis of gift deed dated 19.9.1988. The revenue authorities are bound by the judgments given by the civil courts. The benefit which has accrued to the petitioner on the basis of the judgment of this Court rendered in RSA No. 36/71 could not be rendered otiose by the revenue authorities. Once a declaration has been made by the learned Single Judge of this Court that Mahanti Devi had not become absolute owner of the land in question, there was no occasion for the revenue authorities to go against the judgment date 27.11.1973. The learned Single Judge had taken into consideration the effect of section 14 of the Hindu Succession Act, 1956. Smt. Mahanti was not in possession of the land in the year 1956 since the same was already gifted to Mangat Ram. One of the appellate authorities i.e. Additional Deputy Commissioner exercising the powers of the Commissioner has passed absolutely non-speaking order on 29.8.2002. The order of the Financial 8 Commissioner (Appeals) in revision petition dated 25.7.2006 is also a non- speaking order. The appellate and revising authorities have to pass speaking/reasoned orders. The Hon’ble Supreme Court has held in State of West Bengal v. Atul Krishna Shaw and another, AIR 1990 Supreme Court 2205 that unless adequate reasons are given, merely because it is an appellate authority, it cannot brush aside the reasoning or findings recorded by the primary authority. Their Lordships have held as under:- “The appellate authority being final authority on facts is enjoined and incumbent upon it to appreciate the evidence; consider the reasoning of the primary authority and assign its own reasons as to why he disagrees with the reasons and findings of the primary authority. Unless adequate reasons are given, merely because it is an appellate authority, it cannot brush aside the reasoning or findings recorded by the primary authority.” Their Lordships of the Hon’ble Supreme Court in latest pronouncement in Divisional Forest Officer, Kothagudem and others Versus Madhusudhan Rao, 2008 (2) Scale 322 have held that though it is true that no detailed reasons are required to be given by the appellate authority, but some brief reasons should be indicated even in an order confirming the views of the lower forum. Their Lordships have held as under. “It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his 9 appeal and/or revision. It is true that no detailed reasons are required to be given by the appellate authority, but some brief reasons should be indicated even in an order confirming the views of the lower forum.” Their Lordships of the Hon’ble Supreme Court in Gummalapura Taggina Matada Kotturuswami versus Setra Veeravva and others, AIR 1959 SC 577 have held that that words “property possessed by a female Hindu” mean to come within the purview of the section, the property must be in possession of the female concerned at the date of the commencement of the Act. Their Lordships have further held that possession might have been either actual or constructive or in any form recognized by law, but unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word “possession” in the wider connotation, when the Act came into force, this section would not apply. Their Lordships have held as under: “In the case before us, the essential question for consideration is as to how the words "any property possessed by a female Hindu, whether acquired before or after the commencement of this Act" in S. 14 of the Act should be interpreted. Section 14 refers to property which was either acquired before or after the commencement of the Act and that such property should be possessed by a female Hindu. Reference to property acquired before the commencement of the Act certainly makes the provisions of the section retrospective, but even in such a care the property must be possessed by a female Hindu at the time the Act came into force in order to make the provisions of the section applicable. There is no question in the present case that Veeravva acquired the property of her 10 deceased husband before the commencement of the Act. In order that the provisions of S. 14 may apply to the present case it will have to be further established that the property was possessed by her at the time the Act came into force. It was the case of the appellant that the estate of Veerappa was in actual possession of the second defendant and not Veeravva at the relevant time. On behalf of the respondent it was urged that the words "possessed by" had a wider meaning than actual physical possession, although physical possession may be included in the expression. In the case of Venkayamma v. Veerayya (S) AIR 1957 Andh-Pra 280; Viswanatha Sastri J, with whom Satyanarayana Raju J. agreed, expressed the opinion that "the word possessed" in S. 14 refers to possession on the date when the Act came into force. Of course, possession referred to in S. 14 need not be actual physical possession or personal occupation of the property by the Hindu female but may be possession in law. The possession of a licensee, lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purpose of S. 14. The word "possessed" is used in S. 14 in a broad sense and in the context possession means the state of owning or having in one's hands or power. It includes possession by receipt of rents and profits". The learned Judges expressed the view that even if a trespasser were in possession of the land belonging to a female owner, it might conceivably be regarded as being in possession of the female owner, provided the trespasser had not perfected his title. We do not think that it is necessary, in the present case to go to the extent to which the learned Judges went. It is sufficient to say that "possessed" in S. 14 is used in a broad sense and in the context means the state of owning or having in one's hand or power. In the case of Gostha Behari v. Haridas Samanta, (S) AIR 1957 Cal 557 at p. 559, P. N. 11 Mookherjee J, expressed his opinion as to the meaning of the words "any property possessed by a female Hindu" in the following words :- "The opening words "property possessed by a female Hindu" obviously mean that to come within the purview of the section the property must be in possession of the female concerned at the date of the commencement of the Act. They clearly contemplate the female's possession when the Act came into force. That possession might have been either actual or constructive or in any form recognized by law, but unless the female Hindu, whose limited estate in the disputed, property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word "possession" in its widest connotation, when the Act came into force, the section would not apply." In our opinion, the view expressed above is the correct view as to how the words "any property possessed by a female Hindu" should be interpreted. In the present case if the adoption was invalid, the full owner of veerappa's estate was his widow Veeravva and even if it be assumed that the second defendant was in actual possession of the estate his possession was merely permissive and Veeravva must be regarded as being in constructive possession of it through the second defendant in this situation, at the time when the Act came into force, the property of Veerappa must be regarded in law as being possessed by Veeravva.” Their Lordships of the Hon’ble Supreme Court in Kuldip Singh and others versus Surain Singh and others, 1968 Vol. LXX PLR-30 have held that once a widow gifts away the property in which she had a limited interest, she is no longer in a position to claim any legal right to that property and in the absence of such a right, she could not be held to be 12 possessed of it. After gifting the property and parting with possession of the property, she was not left with any rights at all under which she could retain possession in her own life time. She could not avoid the deed of gift and could not claim back possession from the donee or his successors-in- interest. Once she had gifted the property, she could not be held to be possessed of the property when the Act came into force and consequently, she could not become full owner of it. Their Lordships have held as under: “It is clear from the questions reproduced above that on the principles laid down by this Court in the case of Mangal Singh and others (Supra), it has to be held in the present case that the property in dispute cannot be held to be possessed by Smt. Mehtab Kaur, because, after gifting the property to Harnam Singh and parting with the possession of the property, she was not left with any rights at all under which she could regain possession in her own life time. The gift executed by her was binding on her, even though it may not have been binding on the reversioners. She could not, therefore, avoid the deed of gift and could not claim back possession from Harnam Singh or his successors-in-interest. Having thus completely parted with her rights, she could not be held to be possessed of the property when the Act came into force and consequently she could not become full owner of it. Learned counsel appearing on behalf of the appellants sought to distinguish all these case decided by this Court on the ground that in none of those cases had the property been transferred by a deed of gift, so we do not think that any such distinction is possible, because, in those cases, this Court explained the full significance of the expression ‘possessed by a Hindu female” and the meaning accepted by the Court clearly covers the case of a female Hindu who may have parted with the property by making a gift of it. Once she gifts 13 away the property she is no longer in a position to claim any legal right to that property; and in the absence of such a right, she cannot be held to be possessed of it. The same view has been expressed by several High Courts when dealing with the effect of gifts or settlements made by a widow. Reference may be made to the decisions of the Patna High Court in Harak Singh versus Kailash Singh, the Punjab High Court in Amar Singh versus Sewa Ram, the Oriassa High Court in Ganesh Mahanta versus Sukris Bewa and the Madras High Court in Kurruppuiayar versus Periathambi Udayar. In all these cases, gifts or settlements made by a widow were held to lead to the result that the widow could not be held to be possessed of the property which she had gifted away or given away by settlement. The ground taken by the appellants, therefore, has no force.” Their Lordships of the Hon’ble Supreme Court in Munshi Singh and others versus Smt. Sohan Bai (dead) by LRs, AIR 1989 SC 1179 while interpreting section 14 of the Hindu Succession Act, 1956 have held that in view of gift made in favour of ‘R’, the widow on the date on which Hindu Succession Act came into force, was not possessed of any right in the property, therefore, she could not get any advantage from the coming into force of the Hindu Succession Act. Therefore, on the date on which the widow executed the sale deed, in fact she had no title to the property nor she was in possession thereof. Their Lordships have