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Jagat Singh and ors. Vs. Teja Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 39 of 1964
Judge
Reported inAIR1970P& H309
ActsHindu Succession Act, 1956 - Sections 14; Hindu Law
AppellantJagat Singh and ors.
RespondentTeja Singh and ors.
Appellant Advocate M.L. Sethi and; Ichhpal Singh, Advs.
Respondent Advocate R.L. Aggarwal,; G.S. Virk and; A.L. Bahl, Advs.
DispositionAppeal dismissed
Cases ReferredTeja Singh v. Jagat Singh
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....harbans singh, j. 1. on the death of one dalipa, ms widow smt.. uttam devi inherited her husband's estate in the year 1938. on 18th of february, 1938, she gifted the entire estate to daulat singh and charan singh in equal shares. this gift was challenged on 29th of june, 1939, by reversioners by means of usual declaratory decree under customary law to the effect that the gift aforesaid will not affect their reversionary rights. the suit abovementioned was decreed on 17th of september, 1939. some 20 years thereafter, that is on 3rd of june, 1959, daulat singh, one of the donees, made a gift back to the widow smt.. uttam devi of one-half share of the property which had originally been gifted to him by her. on 8th of june. 1959. smt. uttam devi sold the property so resifted to her to hazara.....
Judgment:

Harbans Singh, J.

1. On the death of one Dalipa, Ms widow Smt.. Uttam Devi Inherited her husband's estate in the year 1938. On 18th of February, 1938, she gifted the entire estate to Daulat Singh and Charan Singh in equal shares. This gift was challenged on 29th of June, 1939, by reversioners by means of usual declaratory decree under Customary Law to the effect that the gift aforesaid will not affect their reversionary rights. The suit abovementioned was decreed on 17th of September, 1939. Some 20 years thereafter, that is on 3rd of June, 1959, Daulat Singh, one of the donees, made a gift back to the widow Smt.. Uttam Devi of one-half share of the property which had originally been gifted to him by her. On 8th of June. 1959. Smt. Uttam Devi sold the property so resifted to her to Hazara Singh and Teja Singh (copv exhibit D. 1). On 20th of October. 1959, Smt. Uttam Devi died. On 13th of March, 1961. Jagat Singh and others claiming to be the next reversioners and heirs of Dalipa, filed a suit for possession of the entire land which formed the subject-matter of 1938 gift The suit was resisted by the vendees qua one-half which had been sold to them by Smt.. Uttam Devi in 1959. The suit was decreed by the trial Court and this decree was confirmed by the lower appellate Court but in Regular Second Appeal No. 875 of 1963 filed by vendees the learned Single Judge reversed the judgment and the decree of the Courts below and held that Smt. Uttam. Devi qua the one-half of the property gifted back to her on 3rd of June. 1959, became a full owner by virtue of Section 14 of the Hindu Succession Act (hereinafter referred to as the Act) and, therefore, she could convey a good title to the vendees. Jagat Singh etc. filed this Letters Patent Appeal and the Bench consisting of Mehar Singh, C. J. and H. R. Sodhi, J. after hearing the parties referred the matter to be decided by a Full Bench in view of the important point of law involved and that is how the matter is before us.

2. There can be no manner of doubt that If Smt.. Uttam Devi had not gifted the property now in dispute to Daulat Singh in the year 1938 and she was in possession thereof in her capacity as a widow of her husband Dalipa, then on the enforcement of the Hindu Succession Act by virtue of Sub-section (1) of Section 14, her interest in the property would have got enlarged into an absolute estate. It is now well settled and as has been discussed at length by the learned Single Judge, the estate of a widow under the Mitakshara Hindu Law and under the Punjab Agricultural Custom, prior to the enforcement of the Act was not a life estate as it is ordinarily understood. She was a full owner except for the fact that her powers of alienation are limited. In paragraph 176 of Mulla's Hindu Law (Thirteenth Edition), widow's estate is described as follows:--

'A widow or other limited heir is not a tenant-for-life, but is owner of the property inherited by her, subject to certain restrictions on alienation, and subject to its devolving upon the next heir of the last full owner upon her death. The whole estate is for the time vested in her, and she represents it completely. As stated in a Privy Council case, Janaki Ammal v. Narayanasami, 43 Ind App 207 at p. 209= (AIR 1916 PC 117), her right is of the nature of a right of property; her position Is that of owner; her powers in that character are, however, limited; but ............... so long as she Is alive no onehas any vested interest in the succession.'

3. Again. It is now beyond any controversy that whenever a widow makes an alienatio, which is not for necessity and therefore, not binding on the reversioners, the alienee gets all the rights which the widow enjoyed in the property and he is the owner of the property to the same extent as the widow and nobody can disturb his possession during the life-time of the widow or till such time as her estate comes to an end on the happening of any event For example, if she remarries and the remarriage ordinarily results In termination of her estate, the alienee's interest will come to an end. Similarly, if the widow validly adopts ason to her husband then again the estate would vest in the adopted son and the estate of the widow comes to an end and consequently also that of the alinee.

In other words, the right of the alienee In the property is co-extensive with that of the widow. After such an alienation, the widow is left with no right in the property, nor can she retain possession thereof and consequently if, as in the present case, a widow makes an alienation prior to the enforcement of the Act then at the time of the commencement of the Act she is not in possession of any property nor any interest therein and consequently there is no question of any limited right being enlarged into absolute ownership under the provision of Section 14 of the Act on the enforcement of the Act.

See in this respect the decision of the Supreme Court in Kuldip Singh v. Surain Singh, (1968) 70 Pun LR 30 (SC), following the earlier decision in Mangal Singh v. Smt.. Rattno, AIR 1967 SC 1786.

4. The question for determination in this case, however, is as to what is the effect of a reconveyance of the aforesaid alienation to the widow sometime after the enforcement of the Act.

5. We would first consider the result of such a reconveyance if it took place before the Act came into force and before a decree for usual declaration was obtained by the reversioners challenging the alienation made by the widow. This point came up for consideration in Muhammad Rafiq v. Faiz Ahmad, AIR 1933 Lah 597 (2) before a Bench consisting of Jai Lal and Agha Haidar, JJ. In that case the sale was by a proprietor in favour of his son-in-law. Reversioners filed a suit for the usual declaration that the sale would not affect their reversionary rights. The suit was decreed. Subsequent to the decree the son-in-law mutated back the property in favour of the original proprietor. Some three years thereafter the original proprietor, made a gift of that very property in favour of his daughter. The reversioners filed another suit challenging the gift. The Courts below held that the parties were Awams of Shahpur District amongst whom there was an unrestricted power of alienation of ancestral property. The suit was consequently dismissed. In the second appeal before the High Court it was stressed that the decree passed by the Courts below had the effect of nullifying the earlier declaratory decree obtained by the reversioners which had become final. Jai Lal, J., speaking for the Bench observed as follows:--

'But It is clear that the decrees of the Courts below have not led to that effect. On the other hand, the parties having cancelled the previous sale and placed themselves in the same position in which they were before it was effected, the decree in favour of the reversioners practically became useless. No law has been quoted to show that it was not open to the parties by mutual agreement to cancel the sale under the circumstances and obviously there is no law to that effect.'

The second appeal was consequently dismissed. This was no doubt a case of alienation by a male proprietor, but the claim of the reversioners in the earlier declaratory suit was based on the allegation that the male proprietor had a restricted right of alienation and that he could alienate only for necessity. In other words, any alienation made but for legal necessity was not binding on the reversioners. The right of a widow, as already stated, is exactly the same in this respect as that of a male proprietor who has only restricted power of alienation.

6. Apart from other things, when an alienee from a widow or other alienor with restricted power comes to know, either because he is threatened with litigation or a suit is actually filed or otherwise, of the defect or the lacuna in the title of his alienor, there is nothing either in the Hindu Law or the Customary Law or any other law which stands in his way of re-conveying the property back to the alienor and thus restoring the position of the property as it existed prior to the alienation which is being challenged. After all, the relief that is claimed by a reversioner In the usual declaratory suit is that a declaration may be granted to the effect that the impugned alienation would not affect the reversionary rights. In other words, the alienation should be treated as nonexistent so far as the body of the reversioners are concerned. Paragraph 202 of Mulla's Hindu Law describes the reversioners and their rights in the following terms:--

'A reversionary heir, although having those contingent interests which can be differentiated little, if at all, from a spes successionis, is recognised by Courts of law as having a right to demand that the estate be kept free from danger during its enjoyment by the widow or other limited heir. He may, therefore, sue to restrain a widow or other limited heir from committing waste or injuring the property. The reason why such a suit by a reversionary heir is allowed is that the suit is by him in a representative character and on behalf of all the reversioners so that the corpus of the estate may pass unimpaired to those entitled to the reversion. For the same reason he may bring a suit for a declaration that an alienation effected by her is not binding on the reversion.'

So that it is clear that all that the reversioners are interested in is that 'corpus' of the estate may pass unimpair ed to those entitled to the reversion. Now, when the alienees from a widow are limited owners and on reconveyance the property comes back to the alienor, the result Is that the corpus is given back to the widow or the limited heir and thus what the reversioners desire to achieve by obtaining a declaratory decree actually takes place. In principle, therefore, there Is nothing to prohibit the parties to effect alienation by mutual consent or to agree to annul the original conveyance,

7. The learned counsel for the appellants could cite no authority taking a contrary view and in a way did concede that if in the present case the reconveyance had taken place before the enforcement of the Act, then on the date the Act came into force, she would certainly be deemed to be in possession of that property with the result that Section 14 will become applicable.

8. The second point that may be considered in this connection is the effect of the declaratory decree obtained by the reversioners, that is, if the reconveyance is made after the decree had been obtained by the reversioner, would that make any difference? It is now well settled and In fact the nature of the decree that can be obtained by the reversioners makes It quite clear that such a decree does not create any vested right in the presumptive reversioner or reversioners. The only right that they get is that if and when the succession opens and someone or some of the body of reversioners happen to be the next reversioners at the time, then they can ignore the alienation which has been challenged and in respect of which the decree has been obtained by anyone or more of the reversioners. The decree obtained enures for the benefit of the entire body of the reversioners and the actual benefit goes to the next heir at the time the succession opens Irrespective of the fact whether he was one of the plaintiffs in the declaratory decree or not. See in this respect the observations of Achhru Ram J. in Gokal v. Haria, AIR 1949 EP 414, which are to the following effect-

'It Is well settled that till succession opens out no reversioner can claim any right to or interest in the property in the possession of the limited owner. Till succession opens put, the reversionary interest is merely in the nature of spes successions and it cannot be postulated with regard to any particular person whether at the time the estate falls into possession he would be entitled to the property. When the presumptive reverstoner brings a suit for a declaration that an alienation by a limited owner should not affect his reversionary rights at the time of the succession opening out and the suit is decreed the only effect of the decree is to declare the alienation to be invalid except for the life of the alienor. The declaratory decree does not pass any title to the presumptive reversioner and does not create any right in him in the property alienated. The title still remains in the alienee.'

Thus the declaratory decree can, in no way, prevent the alienee, who is the owner and in possession of the property during the period that the interest of the party subsists, to agree with the alienor widow to annul the original alienation and recovery the property back to her, the original owner.

9. All that remains to consider is the effect of reconveyance by the alienee after the enforcement of the Hindu Succession Act and the application of Section 14 to the estate or the interest that is conveyed back to the widow. The argument of the learned counsel for the appellants was that when the original gift is made by the widow to the alienee nothing is left with the widow. About this there can be no doubt. His further contention was that what Is conveyed to the alienee is the limited right which was possessed by the widow which Interest was defeasible on the death of the widow or her remarriage or adoption of an heir etc., and consequently the interest conveyed to the alienee was of a limited nature, and that when the alienee reconveys to the widow, he cannot convey a title better than he himself has got. With these propositions also, there can be no quarrel. However, the learned counsel goes on to argue that what was actually conveyed to the original alienee is an interest which is a limited one and that the Hindu Succession Act would in no way have benefited the alienee and consequently when that alienee reconveys that interest to the widow, she would be in no better position than the alienee and Section 14 would not be applicable. Stress is laid on the fact that it should not make any difference as to whether the reconveyance is made by the original alienee in favour of a male or a female. It was urged that supposing he had reconveyed the property or the interest that he possessed in the property to a third person, then such a third person could not claim to have the benefit of Section 14 irrespective of the fact whether he was a male or a female. There are two things which this argument has not taken note of. First, that in this case it is not conveyed in favour of a third person. It is a reconveyance to the person from whom the property was originally taken and, therefore, it amounts to cancellation of the original document. No doubt this cancellation takes place not retrospectively from the date of the original alienation but from the date that the reconveyance is made. However, on the date on which the reconveyance is actually effected, the result of such a reconveyance is the annulment of the original alienation. In other words, on 3rd of June, 1959, in the present case when Daulat Singh made a gift back to the widow of the property originally gifted to him by her, the widow became owner in possession of whatever interest she originally had on the 18th February, 1938, the date on which she had made a gift to Daulat Singh. The second point that is being pressed by the learned counsel is the clear effect of Sub-section (1) of Section 14. The wording of this section is-

'Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.'

All that this section requires is that (a) if a female is possessed of some property and (b) whether this property is acquired before or after the commencement of this Act, she will hold the property as an absolute owner and not as a limited owner. The words 'possessed by' as interpreted by their Lordships of the Supreme Court in Mangal Singh's case, AIR 1967 SC 1786 (supra) are equivalent to having a title to the property or being the owner of the property. When, as in the present case the property is reconvened to the widow, she does acquire a title to the property in view of the fact that the property has been conveyed to her and the right that she acquires by such a conveyance is a limited right which was possessed by the alienee and which had originally been conveyed to that alienee by the widow herself.

However, as she has come to possess this limited right after the enforcement of the Act, Sub-section (1) of Section 14 will become applicable to her and this right will get enlarged into an absolute estate. On the other hand, if the original alienation had been made by a male having only a limited right, he would have been able to convey to the alienee also a limited interest in the same manner if the alienation had been by a widow. If the alienee reconveys the interest originally conveyed to him back to the male limited owner, then such a man would not be able to take the benefit of the provisions of Sub-section (1) of Section 14 and he will remain only a limited owner of the property conveyed back to him. Thus it makes all the difference whether the person to whom the property is reconveyed, resulting in the annulment of the original alienation, is a male or a female. Otherwise too, this so-called anomaly is of daily occurrence; for example, a male proprietor who is holding ancestral property and is governed by custom would have a limited right to alienate the property for legal necessity only and if he alienates the property without such legal necessity, the reversioners can challenge the alienation. However, on the death of such a limited owner, if he is survived by, say, one son and one daughter, then under the Act both of them will be entitled to equal share in the estate. The son would not have unrestricted right of alienation in the share of the estate that is inherited by him because the rules of custom by which he is governed relating to alienation have not been abrogated by virtue of Section 4 of the Act. Under that section only those rules of Hindu laws and customs have been abrogated which run counter to the provisions made in the Act itself. As the Hindu Succession Act does not deal with the right of alienation of a Hindu male, the restrictions imposed on him by the customary law or under the general Hindu law continue to remain in force. However, so far as the daughter is concerned, she will have an absolute estate by the operation of Sub-section (1) of Section 14 of the Act and inasmuch as the property of which she becomes the owner by virtue of inheritance, whether such an inheritance opens before or after the commencement of the Act, she takes as an absolute owner and not as a limited owner. Alienation by her, therefore, cannot be controlled by the reversioners and the alienee from her would get an absolute title.

10. Similarly, if the estate of a limited male owner is inherited by his widow, then she would have an absolute right of alienation which was not enjoyed by her husband from whom she had inherited the property. Thus it is clear that it makes all the difference whether the person to whom the property is reconveyed by the original alienee is a male or a female.

11. Another point taken by the learned counsel was that inasmuch as the reconveyance in favour of the widow was by means of a document, being a document of gift, the alienee had merely a limited right in the property. Consequently Sub-section (2) of Section 14 of the Act would become applicable and not Sub-section (1) because the title Is by a document and it conveys only a limited estate. The mere fact that the property comes to be 'possessed by' a female Hindu under a deed of gift, by itself would not take the case out of subsection (1) of Section 14. This matter is made clear by the Explanation added to Sub-section (1) of Section 14, the relative part of which is as follows:--

'In this Sub-section 'property' includesboth movable and immovable propertyacquired by a female Hindu by inheritance or device, or at a partition. * ** *, or by gift from any person,whether a relative or not, before, at orafter her marriage, * * *,or in any other manner whatsoever,* * *'

Sub-section (2) becomes applicable only where the deed of gift or other instrument by which a female acquires property itself lays down a restriction on the estate that is to be enjoyed by the female. Relevant part of Sub-section (2) is as follows:--

'Nothing contained in Sub-section (1)shall apply to any property acquired byway of gift * * * or anyother instrument or under a decree ororder of a Civil Court or under an awardwhere the terms of the gift * * * * * or other instrumentor the decree, * * prescribe arestricted estate in such property.'

It is nobody's case that the gift deed, by which the property was conveyed by Daulat Singh to the widow on the 3rd June, 1959, itself prescribes any restricted estate. Daulat Singh, in the deed, makes it absolutely clear that what he intends to transfer is all the bundle of rights that he possessed in the property. This bundle of rights could be nothing more or less than the bundle of rights that were conveyed to him by the widow in the year 1938. Thus the gift deed by which the widow came to acquire a right or title in the property does not, in any manner, prescribe a restricted estate in such property. Sub-section (2) is, therefore, altogether inapplicable. Ganesh Mahanta v. Sukria Bewa, AIR 1963 Orissa 167, was relied upon on behalf of the appellants. In this case, the property was reconveyed to the widow after a declaratory decree had been obtained by the reversioners and in the last paragraph of the judgment it was observed as follows:--

' * * defendant 2 acquired only the widow's estate by thegift in his favour. His retransfer on 13thFebruary 1957 by Ex. B, * * *would transmit to Lata the same titlewhich defendant 2 himself had, * ** the declaration made in O. S. 138of 1946-47, that her gift in favour of defendant 2 was not binding on the reversioners after her death, does not makeany difference in the legal position. Evenif such a suit had not been filed, the interest of the alienee or the donee in theproperty would be that of a limitedowner. Section 14(1) does not purportto enlarge the right, title or interest ofthe alienee with regard to the transferseffected prior to the commencement ofthe Act.'

With respect there can be no quarrel with any of the propositions laid down above. The learned Judge, however, then proceeded as follows:--

'By Ex. B Lata would again Bet the widow's estate. The position would be made clear by an illustration. Supposing defendant 2 had effected a transfer not in favour of Lata but in favour of another male who is in law always en-titled to hold the property as a full owner. Would the transferee in such a case acquire a limited right or a full ownership? The obvious answer is that he would acquire only a limited right as the donee cannot transmit any title higher than what he himself had. The position does not become in any way different merely because defendant 2 retransferred the property in favour of a female. Though the transfer is subsequent to the Act, Lata acquired only a limited right and did not acquire full ownership on account of the limited nature of the interest of the transferor,'

Obviously the learned Judge omitted to take note of the fact that it makes all the difference where the retransfer is in favour of the original transferor resulting in the cancellation of annulment of the original alienation and transfer in favour of a stranger. This distinction was noticed in Chinnakolandai Goundan v. Thanli Gounder, AIR 1965 Mad 497. At page 500, after reproducing the above observations of Misra J., in the Orissa case, Ramamurti J., observed as follows:--

'With respect, I am unable to agree with this view, as the entire reasoning is based upon the view that there is no difference between a reconveyance in favour of the widow herself and alienation in favour of the stranger. In my opinion, there is all the difference between a case of annulment of a conveyance by consent of both the parties and a case of a subsequent alienation by the alienee in favour of a stranger. In the former case the effect of the alienation is completely wiped out and the original position is restored. This distinction has not been noticed in the decision of the Orissa High Court.'

In addition, another point that has not been noticed in the judgment of the Orissa High Court is the distinction between the right possessed by a female and that by a male and the effect of Section 14(1) on the right acquired by the female which happened to be of a limited nature.

12. In the Madras case It was held that there is nothing in law prohibiting retransfer by an alienee from the alienor who suffers from a legal disability. At page 501 it was observed as follows:--

'I am, therefore, clearly of the opinionthat there is nothing in law to preventan alienation being completely nullifiedas if it never took effect provided thealienor and the alienee agree to such acourse. * * * *It cannot be disputed that when the reversioner files the suit. It is open to the alienee to submit to a decrea. After such a declaratory decree is passed, there Is nothing in Hindu Law which compels or obliges the alienee to retain and keep the property himself and hand it over to the reversioner. It is certainly open to him to respect the decree and convey back the property to the widow even before her death. It is obvious that what the alienee can do after the termination of the suit can equally be done during its pendency. Surely the alienee Is not a trustee for the reversioner to keep the property in trust and deliver the property on the death of the widow.'

In the Madras case reconveyance took place during the pendency of the suit and it was held that in view of the re-transfer, the suit would stand dismissed. It was further held that in such a situation. Section 14 would apply and enlarge the estate reconveyed to the widow into an absolute owner, even though the title or the right to possession accrued only after the Act came into force. The learned Judge went on to observe as follows:--

'The crucial fact is that the right accrued to a Hindu female.'

The decision of the learned Single Judge reported in Teja Singh v. Jagat Singh, AIR 1964 Punj 403, was noticed and approved by learned Judge.

12-A. In view of the above discussion, I am definitely of the view that there is nothing in law which prevented the reconveyance of the property in dispute by Daulat Singh to the widow on 3rd of June 1959 vide gift deed. Exhibit D. 2, and by this reconveyance the widow became the owner of the property to the same extent as she originally was before the deed of gift and Sub-section (1) of Section 14 became applicable and her Interest, limited as it was before the date of the gift, got enlarged into an absolute estate which she was entitled to dispose of as she liked. There is, consequently no force in the appeal and the same is dismissed. In the peculiar circumstances of the case, there is no order as to costs.

H.R. Sodhi, J.

13. I agree.

S.S. Sandhawalia, J.

14. I agree.


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