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Mansa Ram and ors. Vs. Brijindar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 599 of 1950
Judge
Reported inAIR1956P& H209
ActsHindu Law; Transer of Property Act, 1882 - Sections 8
AppellantMansa Ram and ors.
RespondentBrijindar Singh and ors.
Appellant Advocate Tek Chand and; Y.P. Gandhi, Advs.
Respondent Advocate D.K. Mahajan,; M.C. Sud and; M.S. Gujral, Advs.
DispositionAppeal dismissed
Cases ReferredNathoo Lal v. Durga Prasad
Excerpt:
.....is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 6. the courts below have found that the gilt conveyed an absolute estate to iqbal kaur and therefore the plaintiffs are better heirs than was the father. i may here add that in the report made to the patwari of lands in lyallpur, gifted to iqbal kaur, there was specific mention that the donee was to be a malik kamil like the donor, but no such words exist in the mutations which have been entered into of lands which are now in dispute......singh __________________________________________|___________ | | | baldev jodh mohindar singh: - iqbal singh singh singh = kaur harbaus kaur | _______________________________| | | | barjindar bhupinder harinder singh singh singh3. on 3-8-1927 mohindar singh made a gift of certain properties in favour of his wife iqbal kaur. mutations were attested on 15-11-1927. iqbal kaur died on 28-12-1928 and the lands were mutated in favour of mohindar singh on 29-3-1929. he made a number of alienations of pro- perty in favour of the defendants. on 8-6-1935 mohindar singh made a gift in favour of his second wife harbans kaur of certain property, but in this case we are not concerned with them. mohindar singh died in november 1937 and his estate was mutated in the name of his sons, who in 1927, were.....
Judgment:

Kapur , J.

1. This is an appeal by six of the ten defendants against an appellate decree of the District Judge of Ambala confirming the decree of the trial Court decreeing the plaintiffs' suit for possession of land.

2. The following pedigree-table will assist in understanding the case :

Shamsher Singh

__________________________________________|___________

| | |

Baldev Jodh Mohindar Singh: - Iqbal Singh

Singh Singh = Kaur

Harbaus Kaur |

_______________________________|

| | |

Barjindar Bhupinder Harinder

Singh Singh Singh

3. On 3-8-1927 Mohindar Singh made a gift of certain properties in favour of his wife Iqbal Kaur. Mutations were attested on 15-11-1927. Iqbal Kaur died on 28-12-1928 and the lands were mutated in favour of Mohindar Singh on 29-3-1929. He made a number of alienations of pro- perty in favour of the defendants. On 8-6-1935 Mohindar Singh made a gift in favour of his second wife Harbans Kaur of certain property, but in this case we are not concerned with them. Mohindar Singh died in November 1937 and his estate was mutated in the name of his sons, who in 1927, were minors.

4. The plaintiffs brought this suit for possession alleging that they were the owners of the property because the gift made in favour of their mother conveyed an absolute estate and they were heirs of their mother.

5. The defence was that the gift was to defraud the creditors and that the gift was illusory.

6. The Courts below have found that the gilt conveyed an absolute estate to Iqbal Kaur and therefore the plaintiffs are better heirs than was the father.

7. The gift of properties now in dispute was by means of mutations the words of which were 'hibba kar dia hai aur qabza de dia hai (Have gifted and have delivered possession)'. If the contention of the defendants is right that the estate sonveyed was only a life estate, then the suit of the plaintiffs must be dismissed, otherwise it must be decreed. I may here add that in the report made to the patwari of lands in Lyallpur, gifted to Iqbal Kaur, there was specific mention that the donee was to be a malik kamil like the donor, but no such words exist in the mutations which have been entered into of lands which are now in dispute.

8. Counsel for the appellants had drawn our attention to -- 'Mahomed Shamsool v. Shewakram', 2 Ind. App. 7 (PC) (A), from which it was concluded by Indian Courts that unless there were special words to the effect, a gift made in favour of a female relation conveyed only a life estate, but this view has not been accepted in later Judgments, where it was held that there is no difference between gifts made to males and females and merely because the donee is a woman is not a sufficient ground for cutting down the estate conveyed to her if familiar language would have conveyed an absolute estate in the case of a gift to a male : see -- 'Nagammal v. Subbalakshmi Ammal', 1947 Mad. 319 (AIR V 34) (B). In one of the earlier judgments of the Supreme Court in -- 'Ram Gopal v. Nand Lal', 1951 S.C. 139 (AIR V 38) (C), it was held that it is a fundamental rule of construction of documents to ascertain the intention from the words used; the surrounding circumstances are to be considered only for the purpose of finding out the intention.

To convey an absolute estate to a Hindu female, no express power of alienation need be given and. if the words used are of that amplitude then the full estate will be conveyed. This Judgment was considered in a later Judgment of the Supreme Court in -- 'Nathoo Lal v. Durga Prasad', 1954 SC 355 (AIR V 41) (D), where the leading Judgment was of Mahajan C. J. In that case there was an oral will and it was held that there is no warrant for the proposition of law that when a grant of an immovable property is made to a Hindu female, she does not get an absolute or alienable interest in such property.

If an estate were given to a man without express words of inheritance, it would, in the absence of anything to the contrary, convey full estate. This is the general principle of law which is recognised and embodied in Section 8, T. P. Act and unless it is shown that under Hindu Law a gift to a female means a limited gift or carries with it the restrictions or disabilities similar to those that exist in a 'widow's estate', there is no justification for departing from this principle and there is no provision in Hindu Law in support of limiting the estate of a female donee.

In this Court also a similar view was taken in L. P. A. No. 82 of 1949 (Punj) (E) no doubt follow-ing the Supreme Court judgment in 1951 S.C. 139 (AIR V 38) (C). In my view therefore the Courts below have rightly held that the estate that was taken by Iqbal Kaur was an absolute estate and not merely a life estate and on the death of Iqbal Kaur therefore the inheritance would go to the sons and not to the husband of Iqbal Kaur. In this view of the matter the alienations made by the father conveyed no interest and the ownership remains in the sons.

9. It was then contended that no gift could be made by a member of the joint Hindu family even though he was making it in favour of his wife, but this is not a question which has been raised before the learned District Judge and even if it was, third parties cannot challenge the right of a Hindu father] to make a gift in favour of his wife.

10. Another ground sought to be raised was that the lands in dispute were not parts of the lands which were gifted in favour of Iqbal Kaur tout this ground was rightly disallowed by the District Judge and is not open to the appellants in this case. I would, therefore, dismiss this appeal with costs.

Palshaw, J.

11. I agree.


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