Case: Mangal Singh &amp; Ors Vs. Shrimati Rattno &amp; Anr

1. This appeal arises out of a suit brought for possession of some land which was admittedly owned at one time by one Labhu. Labhu died in the year 1917 and, on his death, his widow, Smt. Harnam Kaur, who filed the suit as plaintiff came into possession of the land. She continued in possession of the land until the year 1954 when, on an application made by the collaterals of Labhu, theby his order dated 26th June 1954, effected mutation in favour of those collaterals. These collaterals were defendants 1 to 4 Mangal Singh. Amar Singh, Santa Singh and Ishar Singh. These collaterals, on the basis of the order of thedispossessed Smt. Harnam Kaur. Harnam Kaurs appeal against the order of thewas dismissed by the Collector. The claim of these collaterals was that Smt. Harnam Kaur had entered into karewa marriage with one of these collaterals, Isher Singh, defendant No. 4 and, consequently, she had lost her right to hold the land of her first husband Labhu. Smt. Harnam Kaur denied that she had entered into any karewa marriage with Ishar Singh and. on the basis of this denial, instituted the suit claiming possession of that land. She pleaded that the four defendants had no right to this land and had wrongfully dispossessed her, so that they were mere trespassers. This suit was instituted on 1st March 1956. After the institution of the suit,the Hindu Succession Act, 1956 (No. 30 of 1956) (hereinafter referred to as "the Act") came into force on 17th June 1956. The suit was at that time, pending and it continued to remain pending until the year 1958 when Smt. Harnam Kaur died. Thereupon, Smt. Rattno applied to be substituted as plaintiff in place of Smt. Harnam Kaur as her legal representative. This application was allowed, though it was opposed by defendants 1 to 3. In the trial of the suit, defendants 1 to 3 took the plea that Smt. Harnam Kaur, the original plaintiff, had lost her right to the land because of her karewa marriage with Ishar Singh, defendant No. 4. Defendant No. 4, however, admitted the claim of Smt. Harnam Kaur in his written statement, denied that he had dispossessed her and also denied the allegation of her karewa marriage with him. In these circumstances, two main questions came up for decision by the trial Court. The first question was whether Smt. Harnam Kaur had entered into a karewa marriage with Ishar Singh, defendant No. 4, so as to lose her right to the disputed land as widow of the previous male owner, Labhu? The second question that arose was whether Smt. Rattno, who was substituted as the legal representative of Smt. Harnam Kaur, was entitled to succeed to the property of Smt. Harnam Kaur? This second question depended on whether Smt. Harnam Kaur had, or had not, become full owner of the land under S. 14 of the Act. The trial Court held that Smt. Harnam Kaur had contracted karewa marriage with Ishar Singh, defendant No. 4, and had lost her rights. The further finding of the trial Court was that Smt. Harnam Kaur had been dispossessed before the Act came into force and, consequently, S. 14 of the Act did not apply, with the result that Smt. Rattno could not claim succession to Smt. Harnam Kaur under that provision of law. On these findings, the trial Court dismissed the suit.2. On appeal, the Additional District Judge, Patiala, recorded the finding that Smt. Harnam Kaur had not entered into karewa marriage with Ishar Singh, defendant No. 4, and, further, that S. 14 of the Act was applicable to the present case, as the land in suit was possessed by Smt. Harnam Kaur so as to make her full owner of this land under that provision of law. On these findings, the first appellate Court decreed the suit against defendants 1 to 3 with costs in both Courts, after making a comment that Ishar Singh, defendant No. 4, was a pro forma defendant. Defendants 1 to 3, thereupon, came up in second appeal to the High Court of Punjab and impleaded as respondents Smt. Rattno as well as Ishar Singh. The High Court dismissed the appeal and, thereupon, defendants l to 3 have come up to this Court in appeal under special leave granted to them. In this appeal also, defendants 1 to 3 impleaded both Smt. Rattno and Ishar Singh as respondents.

Reasoning: 4. On merits, we are of the opinion that the decision given by the High Court against the defendants-appellants must be upheld. The first appellate Court, which was the final Court for deciding questions of fact, clearly recorded a finding that the Karewa marriage alleged to have been entered into by the plaintiff, Smt. Harnam Kaur, with Ishar Singh, defendant No. 4, was not proved. That finding of fact was binding on the High Court and was rightly accepted by it. It is no longer open to the appellants to challenge that finding of fact in this CourtOn this Finding, it has to he held that the rights to the land, to which Smt. Harnam Kaur had succeeded as widow of Labhu were not lost by her until her death, and that her dispossession by defendants 1 to 3 in the year 1954 was illegal. They had no right to this land in preference to Smt. Harnammay be mentioned that there was no dispute in the High Court, nor was it disputed before us that, if it be held that S.14 of the Act had become applicable and Smt. Harnam Kaur became full owner of this land, her rights would pass on her death to Smt. Rattno and, subsequently, Oil the latters death, to the present respondents in thisdo not think that any such interpretation can be placed on the words used by this Court. Section 14 (1) covers any property possessed by a female Hindu, whether acquired before or after the commencement of the Act. On the face of it, property acquired after the commencement of the Act by a female Hindu could not possibly be possessed by her at the commencement of the Act. This Court when it made the comments relied upon by learned counsel, was in fact. concerned with a case of a female Hindu, who had acquired the right to the property before the commencement of the Act, but was alleged to be no longer possessed of it because of having adopted a son before the commencement of the Act. It was in these circumstances that the Court in that particular case was concerned with the question whether the female Hindu was possessed of the property in dispute or not at the time the Act came into force. The Court was not laying down any general principle that S. 14 (1) will not be attracted at all to cases where the female Hindu was not possessed of the property at the date of the commencement of the Act. In fact, there are no words used in S. 14 (1) which would lead to the interpretation that the property must be possessed by the female Hindu at the date of the commencement of the Act. It appears to us that the relevant date, on which the female Hindu should be possessed of the property in dispute must be the date on which the question of applying the provisions of S. 14 (1) arises. If, on that date, when the provisions of this section are sought to be applied, the property is possessed by a female Hindu, it would be held that she is full owner of it and not merely a limited owner. Such a question may arise in her own lifetime, or may arise subsequently when succession to her property opens on her death. The case before us falls in the second category, because Smt. Harnam Kaur was a limited owner of the property before the commencement of the Act, and the question that has arisen is whether Smt Rattno was entitled to succeed to her rights in this disputed property on her death which took place in the year 1958 after the commencement of thecase, thus, explains why, in cases of alienation or a gift made by a widow, even though that alienation or gift may not be binding on a reversioner, the property will not be held to be possessed by the widow, because the alienation or the gift would be binding on her for her life-time and she, a least, would not possess any such rights under which she could obtain actual or constructive possession from her transferee or donee. Having completely parted with her legal rights in the property, she could not be said to be possessed of that property anycase also, thus, supports our view that the expression "possessed by" was used in the sense of connoting state of ownership and, while the Hindu female possesses the rights of ownership, she would become full owner if the other conditions mentioned in the section are fulfilled The section will, however, not apply at all to cases where the Hindu female may have parted with her rights so as to place herself in a position where she could? in no manner, exercise her rights of ownership in that property anythese were cases relating to situations where the widow had made some alienation of her rights in the property and none of them was concerned with a case where the female Hindu might have been dispossessed by a trespasser. The reasons given by the High Courts in those cases are, therefore, of no assistance in deciding the applicability of S. 14 (1) of the Act to a case of the nature before us.14. On the interpretation of S. 14 (1) of the Act that we have accepted above, it must be held that the property involved in the present suit was possessed by Smt. Harnam Kaur when she died in the year 1958 and, consequently, Smt. Rattno and, after her, the present respondents must be deemed to have succeeded to those rights.We have already mentioned above that it was not disputed that, if it is held that Smt. Harnam Kaur had become full owner of this property, it would pass on her death to Smt. Rattno. As a result, the decision given by the High Court must behowever, appears that, on the pleadings of parties and the nature of the dispute that came to be settled by the lower Courts, it cannot be held that this appeal must abate as a whole, or must fail because of its abatement against Ishar Singh on his death. We have already mentioned that, though the plaintiff, Smt. Harnam Kaur, had come forward with the allegation that she had been dispossessed by all the four defendants 1 to 4, Ishar Singh, defendant No. 4, in his written statement repudiated this claim. He put forward the plea that he had not dispossessed the plaintiff and, further, supported the claim of the plaintiff by pleading that there had been no karewa marriage between them. The suit was dismissed by the trial Court. It was decreed by the first appellate Court only against defendants 1 to 3, treating Ishar Singh as a pro forma defendant. In these circumstances, it is obvious that, when the case came up before the High Court, the dispute was confined between Smt. Rattno, legal representative of the original plaintiff on the one side, and defendants 1 to 3 on the other. Defendants 1 to 3 sought vacation of the decree for possession which had been granted against them in favour of Smt. Rattno. Ishar Singh, against whom the suit had not been decreed at all, thus became an unnecessary party. In these circumstances, even if Ishar Singh had not been impleaded as respondent in the High Court, the relief claimed by defendants 1 to 3 in that Court against Smt. Rattno could have been granted without bringing into effect any contradictory decrees. In the appeal in this Court also, in these circumstances, Ishar Singh was an unnecessary party and, consequently, the failure to implead his legal representatives as respondents in the appeal after his death does not affect the right of defendants 1 to 3 to claim the relief for which they have come up to this Court in appeal. The preliminary objection, therefore, fails and isuse of the expression "possessed by" instead of the expression "in possession of", in our opinion, was intended to enlarge the meaning of thisappears to us that the expression used in S. 14 (1) of the Act was intended to cover cases of possession in law also, where lands may have descended to a female Hindu and she has not actually entered into them. It would, of course, cover the other cases of actual or constructive possession. On the language of S. 14 (1), therefore, we hold that this provision will become applicable to any property which is owned by a female Hindu, even though she is not in actual, physical or constructive possession of that property.The third case of this Court brought to our notice is that of S. S. Munna Lal v. S. S. Rajkumar, 1962 Supp (3) SCR 418: (AIR 1962 SC 1493  ). In that case, a Digamber Jain of the Porwal sect died in 1934 leaving behind his widow, his son and threeHis son died in 1939. In 1952 a son of one of the grandsons filed a suit for partition of the joint family properties, while the widow was still alive. While the suit was still pending, the widow died. Amongst other questions arising in the partition suit one question that arose was whether the 1/4th share of the widow declared in the preliminary decree was possessed by her and whether, on her death, it descended to her grandsons in accordance with the provisions of Sections 15 and 16 of the Act. Dealing with this question, this Court explained the scope of S. 14 (1) by stating that, by S. 14 (1), the Legislature sought to convert the interest of a Hindu female which, under the Sastric Hindu law, would have been regarded as a limited interest into an absolute interest. It was held that, by S. 14 (1), manifestly, it was intended to convert the interest, which a Hindu female has in property, however restricted the nature of that interest under the Sastric Hindu law may be, into absolute estate. It was also noticedthe Sastric Hindu law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance, and she was not entitled to claim partition. But the Legislature, by enacting the Hindu Womens Right to Property Act, 1937, made a significant departure in that branch of the law the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned, she became owner in severally of her share, subject, of course, to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual orthese principles to the facts of that case, it wasthe light of the scheme of the Act and its avowed purpose, it would be difficult, without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a person under a decree for partition is not a right to property. If, under a preliminary decree, the right in favour of a Hindu male, be regarded as property, the right declared in favour of a Hindu female must also be regarded as property. The High Court was, therefore, in our judgment, in error in holding that the right declared in favour of Khilonabai was not possessed by her, nor are we able to agree with the submission of the learned counsel for Rajkumar that it was not property within the meaning of S. 14 of thethat case, it will be noticed that the widow died, while the suit for partition was still pending, and she was not in actual physical or constructive possession of the property which was held to be possessed by her at the time of her death. Only a preliminary decree declaring her right to the share had been passed. That decree was passed before the Act came into force and the widow died after the Act came into force. On these facts, the Court came to the finding that the disputed property was possessed by the widow; and this finding was given despite the circumstance that she was not in actual possession or constructive possession of the property, but had merely obtained the right to the property under the preliminary decree. The principle laid down in that case, thus, supports the broader meaning given to the expression "possessed by" indicated by us earlier.In this view that we have taken. it does not appear to be necessary for us to refer to the decisions of the various High Courts which were cited before us by learned counsel, for the appellants. The cases mentioned were: Patelin v. Satvabati Naikani, AIR 1958 Ori 75  ; Ganesh Mahanta v. Sukria Bewa, AIR 1963 Ori 167  ; Harak Singh v. Kailash Singh. AIR 1958 Pat 581   Ram Gulam Singh v. Palakdhari Singh, AIR 1961 Pat 60  , Nathuni Prasad Singh v. Mst. Kachnar Kuer, AIR 1965 Pat 160   and Mst. Mukhtiar Kaur v. Mst. Kartar Kaur, AIR 1966 Punj 31. Allthese were cases relating to situations where the widow had made some alienation of her rights in the property and none of them was concerned with a case where the female Hindu might have been dispossessed by a trespasser. The reasons given by the High Courts in those cases are, therefore, of no assistance in deciding the applicability of S. 14 (1) of the Act to a case of the nature before us.