Case: AJIT KAUR @ SURJIT KAUR Vs. DARSHAN SINGH (DEAD) THROUGH LRS

1. This is the defendant?s appeal by special leave against the judgment of the High Court of Punjab and Haryana at Chandigarh dated 28 th July, 2004 and arises in the following circumstances.Original plaintiffs, Darshan Singh son of Bhana, and Amriti and Udhi alias Iqbal Kaur, daughters of Bhana filed a suit for possession of the subject land in dispute. It was claimed by the plaintiffs that Bhana, son of Moti was the original owner of the subject properties in dispute. The plaintiffs along with one Gurdev Kaur were the children of aforesaid Bhana from his first wife Bhago and after the death of his wife(Bhago), Bhana was remarried to Smt. Banti but because of strained relations of Bhana and Smt. Banti, they started living separately. There was even a litigation between them. Bhana and Smt. Banti had a daughter, namely, Ajit Kaur(appellant) from the aforesaid wedlock. To settle the dispute between them, Bhana parted the suit land to Smt. Banti by way of gift for her maintenance way back in the year 1950. In furtherance thereof, mutation was also entered in favour of Smt. Banti bearing no. 3813 sanctioned on 25 th February, 1950. The aforesaid gift came to be challenged by the original plaintiff Darshan Singh in a Civil Suit No. 103/1953 for declaration under the customary law. It was claimed by him that the aforesaid gift by late Bhana in favour of Smt. Banti qua the ancestral property would not affect the reversionary rights of Darshan Singh(original plaintiff). The aforesaid civil suit filed at the instance of Darshan Singh was decreed by the learned trial Court vide judgment dated 30 th June, 1954 and it was held that the aforesaid gift by late Bhana in favour of Smt. Banti would not affect the reversionary rights of Darshan Singh and would operate only during the life time of Bhana. The Civil Appeal No. 101/1954 preferred by Banti against the aforesaid judgment and decree was dismissed by learned District Judge vide judgment dated 29 th November, 1954 and the Regular Second Appeal No. 193/1955 filed at her instance(Smt. Banti) came to be dismissed by the High Court on 3 rd November, 1959. It was claimed that Smt. Banti was to continue to have the rights in the property only during the life time of Bhana and was not an absolute owner. Since Bhana died on 27 th March, 1973 and prior to his death, he had executed a registered will dated 5 th January, 1973 whereby he bequeathed his estate in favour of plaintiffs Darshan Singh and others by excluding Smt. Banti and Smt. Ajit Kaur, original (defendant no. 1) and (defendant no. 25) appellant herein and other daughter Gurdev Kaur. In reference to the aforesaid will dated 5 th January, 1973, Civil Suit No. 15/1975 was filed by the plaintiff for possession. The appellant contested the suit and it was claimed by her that Banti was the absolute owner of the suit property. She even denied the earlier litigation between the parties whereby reversionary rights of Darshan Singh came to be upheld. The will as claimed by the plaintiffs dated 5 th January, 1973 was also contested.On the other hand, the appellant in separate litigation between the parties reached upto the Regular Second Appeal no. 933/1984 and the validity of the will dated 5 th January, 1973 came to be upheld by the High Court vide judgment dated 28 th July, 2004 and the Special Leave Petition(Civil) no. 24724/2004 preferred at the instance of the appellant came to be dismissed as not pressed. According to the will dated 5 th January, 1973, the original plaintiffs became entitled to claim the property of Bhana(deceased) including the land in dispute to the exclusion of the present appellant. It was stated in the will dated 5 th January, 1973 that Smt. Banti was residing separately for almost 20 years and questioned her character having illegitimate relations with Maal Singh, son of Nihal Singh, r/o Bada Pind and despite that, the testator has taken care of her maintenance. The will dated 5 th January, 1973 came to be executed in supersession of the earlier will dated 11 th April, 1956 and for the aforesaid reason, it was stated by the testator that the entire property after his death be devolved to his daughter Smt. Amriti, Udi alias Iqbal Kaur and son Darshan Singh in three equal shares.The trial Court in the instant proceedings held that the suit land had been allotted in lieu of the original land during the consolidation proceedings. Both the wills set up by the plaintiffs dated 5 th January, 1973 and the defendants dated 21 st February, 1973 were held to be executed by Bhana. Learned trial Court further recorded a finding that Banti had become absolute owner of the suit property after the commencement of the Hindu Succession Act, 1956 (hereinafter being referred to as Act 1956) and, therefore, the plaintiffs could not take any benefit of the earlier decree and accordingly dismissed the suit filed by the plaintiffs.On reappraisal of the evidence on record, the appellate Court reversed the findings of the trial Court with regard to Banti having become absolute owner of the suit property on the basis of an oral gift executed by Bhana in the year 1950 and the gift came to be set aside and held that Smt. Banti could not be held to be the absolute owner of the suit property even after the commencement of the Act, 1956 inasmuch as her title to the suit property was to operate only during the life time of Bhana who died on 27 th March, 1973. The judgment of the Court of appeal came to be challenged at the instance of the appellant(defendant) and second appeal before the High Court also came to be dismissed under the impugned judgment dated 28 th July, 2004 which is the subject matter of challenge in the instant appeal.

Reasoning: 13. The concurrent finding of fact has been recorded by the High Court in the regular second appeal in separate proceedings initiated in reference to will dated 5 th January, 1973 in RSA No. 933/1984 decided on 28th July, 2004 held to be validly executed and based on the recital of the will, it was held that the plaintiffs became entitled to succeed to the entire property of Bhana (deceased) including the land in dispute to the exclusion of defendant(appellant herein). It may be relevant to note that the finding of fact recorded under the impugned judgment in reference to a later will dated 21 st February, 1973 on which much emphasis was laid by the present appellant, it was observed that the propounder of the will was legally required not only to prove the due execution of the will but also to dispel all suspicious circumstances which may have existed in its due execution of the aforesaid will and it was observed that the later will dated 21 st February, 1973 claimed by the present appellant cannot be taken to be duly proved and being a finding of fact duly supported by the material on record, we find no perversity or manifest error in the finding to be reviewed by this Court in the instant appeal.It is a settled position of law that the mutation of a property in the revenue records are fiscal proceedings and does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation has been ordered, to pay the land revenue. At the same time, the effect of a declaratory decree to restore the property alienated to the estate of the alienor and until and unless the alienees are able to convince the court that they have no subsisting interest in the property, the heirs of the alienees would be entitled to the benefits of the property as per the law of succession. The effect of the operation of the aforesaid declaratory decree would be to restore the land in dispute to the aforesaid estate of Bhana(deceased) and the succession would be deemed to have opened on 27 th March, 1973 when Bhana died. On his death, the estate left behind him including the land in dispute would devolve upon his heirs as per their entitlement and after the registered will dated 5 th January, 1973 has been upheld by the High Court in RSA No. 933/1984 decided on 28 th July, 2004 and attained finality, its consequence was to follow accordingly.The submission of learned counsel for the appellant that the appellant being in possession of the subject property in question at the time when Act, 1956 came into force and by virtue of Section 14(1) of the Act became an absolute owner of the subject property and the decree being a nullity is inexecutable and it is a jurisdictional error against the policy of legislature, is without substance for the reason that Section 14(1) of the Act, 1956 clearly envisage that the possession of the widow, however, must be under some vestige of a claim, right or title or under any of the devise which has been purported under the law. Indisputedly, in the instant case, the appellant was not holding any valid possession over the subject property and as already observed, opening of fiscal proceedings would not confer a right of acquisition by either of the devise which has been referred to under the explanation to Section 14(1) of the Act, 1956.In Eramma Vs. Veerupana and Others (supra), the widow was in possession of the half of the property of her late husband and claimed her absolute ownership by virtue of Section 14 of the Act, 1956 which was negated by this Court for the reason that the widow was not holding possession over the subject property in question under any of the devise indicated in the explanation to Section 14(1) of the Act, 1956.Wherein V. Tulasamma and Others Vs. Sesha Reddy(Dead) by LRs, it was an admitted case before the Court that the suit property came in possession of the widow under a compromise in execution of decree of the Court, restricting her right of alienation in recognition of right to maintenance, having pre -existing right over the subject property in question on the date the Act, 1956 came into force(i.e. 17 th June, 1956). In that reference, the claim was considered by this Court and held that the pre -existing right of the widow on the date of the commencement of the Act, 1956 will get her the absolute rights over the subject property.In the instant case, the appellant although was holding possession but not under any of the devise referred to under explanation to Section 14(1) of the Act, 1956 and mere possession would not confer pre-existing right of possession over the subject property to claim full ownership rights after the Act, 1956 came into force by operation of law and this what was considered and negated by the High Court in the impugned judgment.