Case: Mst. Mahli Vs. Ranbir Singh and Others

| | |Bhagwani Ram Sarup Mst. Mahliwidow | plaintiffPhoolmati Chhotu Hoshiar Ranbir Singhdefendant defendant Singh defendant No. 1No. 5 No. 4 defendantdaughter daughter No. 23. Chandgi owned fair amount of land in village Asan, Tehsil and District Rohtak. He was Jat by caste and governed by Punjab Customary Law. On November 21, 1954, he made an oral gift of 2/3rds of the land in favour of Ranbir Singh and Hoshiar Singh, his grandsons, his son Ram Sarup having died. Mutation was entered by the Patwari and submitted for sanction. The mutation was reviewed because this mutation had been "decided (after) the date of possession of land given vide mutation 1290 respecting repartition". This apparently has reference to repartition proceedings in consolidation proceedings. At any rate, the mutation regarding Tamlik (gift) of 2/3rd share measuring7 Kanals of land, entered at Khewat No. 18, comprising 43 plots, measuring1 Kanals, together with rights in Shamlat was sanctioned4. In Column 9 headed "Name of the owner with description" is mentioned "Ranbir Singh and Hoshiar Singh, s/o Ram Sarup, s/o Chandgi, s/o Nota, residents of the village in equal shares2/3 shares, remaining as before 1/3 share". Under the heading "name of the cultivator with description" in Column 5 is mentioned "under personal cultivation"5. On August 16, 1961, Chandgi Ram registered a will and bequeathed the remaining 1/3rd share of the lands in favour of respondent Nos. 1 and 2. On April 6, 1963, Chandgi Ram died. On November 16, 1963, Mst. Mahli filed a suit for decree for possession of 1/6th share in the lands in dispute. The main grounds alleged in the plaint were that the gift, dated November 21, 1954, was void because it was made in order to defeat the provisions of the Punjab Security of Land Tenures Act, 1953, and further that no possession had been transferred to the donees Ranbir Singh and Hoshiar Singh who were minors at that time. The will was challenged on various grounds but we are only concerned with one ground, namely, that the land being ancestral in his hands, Chandgi Ram could not make a will and, at any rate, the plaintiff was entitled to challenge this alienation because she had become an heir under Section 8 of the Hindu Succession Act. The Trial Court decreed the suit to the extent of 1/9th of the land in dispute6. On appeal, however, the suit was dismissed by the Senior Subordinate Judge. He held that both the gift and the will were valid and the plaintiff was not entitled to challenge the alienation, even if the property was ancestral in the hands of Chandgi Ram. He further held that there had been transfer of possession under the gift, and relying on Faujdar v. Bhamma ((1883) 91 PB.) he held that, at any rate, the possession of the donor was on behalf of the donees as the donees were minors who lived alongwith their mother with the donor7. The High Court dismissed the appeal of Mst. Mahli in limine and the learned Single Judge refused to grant a certificate of fitness for appeal to the Letters Patent Bench. Having obtained special leave, the appeal is now before us.

Reasoning:
9. Coming to the first point, we agree with the finding of the Seniore that under the circumstances possession had been delivered. The donees were minors and they were living with the donor, and the donor had done all that he could to effectuate the gift. Mutation was entered and it clearly showed that there had been change of possession. Further, the Khasra Girdawari papers also show the name of cultivator as under the personal cultivation of the owners, the owners being Chandgi s/o Sheo Lal, etc., as entered in Khewat No. 19. The entries in Khewat No. 19 are not printed in the record but the Seniore refers to these as showing that the owners of Khewat No. 19 are Chandgis two grandsons, Ranbir Singh and Hoshiar Singh.The learned counsel points to Ext., Khasra Girdawari for2 where under the heading "name of owner" only the name of "Chandgi s/o Sheo Lal entered at Khewat No. 19" had been mentioned.It appears that the word "etc., " had been omitted in the first page of this document because we find that on the next page in the entry the word "etc., " is added10. Be that as it may, it was a gift of a share in the land and it was gift in favour of minors, and it seems to us that the learned Senior Subordinate Judge was right in applying the decision in Faujdar v. Bhamma (supra)12. Coming to the second point, it seems to us that the Hindu Succession Act has not made any change as far as the right of a female to challenge an alienation made by the last male holder of ancestral land is concerned. It is true that under Section 8 of the Hindu Succession Act a daughter is an heir if a male Hindu dies intestate. But Section 30 of the Act provides that"any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus".The Punjab Customary Law is a law for the time being in force within the meaning of Section 30 and was applicable to the testator Chandgi Ram. Under the Punjab Customary Law applicable to Jats in Rohtak District, Chandgi Ram could alienate his property except for immoral purposes14. It follows from the above discussion that before the enactment of the Hindu Succession Act the plaintiff had no right to contest alienations made by Chandgi Ram, and the Hindu Succession Act has made not change in this respect. The fact that she is an heir now does not bring her within the provisions of Section 6 of the Punjab Custom (Power to Contest) Act, 1920.