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Smt. Giano Vs. Moti Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 953 of 1960
Judge
Reported inAIR1961P& H274
ActsHindu Succession Act, 1956 - Sections 14
AppellantSmt. Giano;moti Ram and ors.
RespondentMoti Ram and ors.;smt. Giano
Advocates: Tirath Singh and; J.N. Kaushal, Advs.
DispositionAppeal dismissed
Cases ReferredMst. Bakhtawari v. Sadhu Singh
Excerpt:
.....& 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree 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. - 5. in my opinion, there is no force in this appeal which must fail and is dismissed......possession of the land after her marriage on 5th of march 1956, it was pleaded by giano that the hindu succession act, which came into force on 17th of june 1956 converted her possession into one of an absolute estate under the provisions of section 14 of the act. 2. the pleadings of the parties gave rise to the following three substantive issues : (1) whether the plaintiffs went in possession of the land in suit before hindu succession actcame into force? (2) whether smt. giano was in possession of the land in suit on 17-6-1956 when hindu succession act came into force and if so with what effect? (3) whether smt. giano is not bound by the previous judgment for the reasons given in the written statement? 3. the first two issues were decided in favour of giano and it was found that.....
Judgment:

Shamsher Bahadur, J.

1. This is a defendant's appeal from the judgment of the District Judge, Hoshiarpur, who has affirmed in appeal the decree passed in favour of the plaintiffs by the trial Judge. The plaintiffs are the collaterals of Gurdas who was the last male holder of 87 Kanals of land situated in village Jia Natha in Tehsil Dasuya, District Hoshiarpur, This land was held by Jas Kaur, widow of Gurdas, after his death. Jas Kaur made a gift of this land in favour of her daughter, the appellant, Mst. Giano.

On Jas Kaur's death, the respondent-collaterals brought a suit for possession of the land on the allegation that the property being ancestral could not have been gifted away by Jas Kaur in favour of her daughter. This suit was decreed by Mr. Hira Lal Jain, Subordinate Judge, Hoshiarpur, on 30-12-1953 vide Ex. P. 6. The learned Judge, on a discussion of issue No. 1, came to a conclusion that Giano was entitled to retain possession of the land in lieu of maintenance till her marriage in accordance with the Riwaj-i-am of Hoshiarpur District compiled by Mr. Humphreys. Mst. Giano continued to retain possession of this land till her marriage which took place on 5th of March 1956.

The collaterals took forcible possession of this land some time after 17th of June 1956 and Giano had to bring a suit for possession of this land. This suit was decreed and while Giano was executing the decree, the collaterals brought the present suit for restraining her from executing the decree on the ground that she was not entitled to retain possession of the land after her marriage on 5th of March 1956, It was pleaded by Giano that the Hindu Succession Act, which came into force on 17th of June 1956 converted her possession into one of an absolute estate under the provisions of Section 14 of the Act.

2. The pleadings of the parties gave rise to the following three substantive issues :

(1) Whether the plaintiffs went in possession of the land in suit before Hindu Succession Actcame into force?

(2) Whether Smt. Giano was in possession of the land in suit on 17-6-1956 when Hindu Succession Act came into force and if so with what effect?

(3) Whether Smt. Giano is not bound by the previous judgment for the reasons given in the written statement?

3. The first two issues were decided in favour of Giano and it was found that she retained possession of the land till the passing of the Hindu Succession Act on 17th of June 1956. On the third issue, however, it was found that the judgment and decree of Mr. Hira Lal Jain (Exhibit P. 6) of 30th of December 1953 conferred a right on Giano to retain possession of the land only till her marriage which took place on 5th of March 1956. Thereafter, she became a trespasser and her possession was not protected under Section 14 of the Hindu Succession Act. The lower appellate Court, in the appeal preferred by Giano, upheld the findings and decision of the trial Judge. Giano has now come in second appeal to this Court.

4. The learned Counsel for the appellant has urged that Giano having retained possession right up to the passing of the Hindu Succession Act, is protected by Sub-section (1) of Section 14 of the Act. According to Sub-section (1) of Section 14 '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'. The learned counsel has referred me to Sub-section (2) which only makes an exception in case of property acquired '....under a decree or order of a Civil Court'.

The counsel contends that the decree of Mr. Hira Lal Jain was based on the Riwaj-i-am of the Hoshiarpur District and did not confer any rights which did not belong to her under the prevailing law. It may be that the Courts below have placed undue emphasis on the decree of Mr. Hira Lal Jain. This decree, however, is not the foundation of the present suit. It is indisputable that Giano could retain possession of the land in pursuance of the rule of custom that a daughter can keep it in lieu of maintenance till her marriage.

The marriage of Giano having taken place on 5th of March 1956, her right to retain possession disappeared independently of the decree of Mr. Hira Lal Jain. Though the word 'possession' has to be construed in a broad sense, as laid down by their Lordships of the Supreme Court in G. T. M. Kotturuswami v. Setra Veerawa, AIR 1959 SC 577, it cannot be extended to include possession of property by a female without any title to it.

It may be that the collaterals had not challenged her right to remain in possession between 5th of March 1956 and 17th of June 1956, but that could not make her possession a rightful one during this period. Section 14 of the Hindu Succession Act is only intended to convert a limited estate of a Hindu female into an absolute one but possession by her of property without any right or title would not make her an owner of it.

As held in Mst. Bakhtawari v. Sadhu Singh, (1959) 61 Pun LR 539 : (AIR 1959 Punj 558) by a Division Bench of Gosain and Grover JJ.,

'if a Hindu female is in possession of the property already as a limited owner, she becomes an absolute owner of the same by virtue of Section 14 it is only the limited ownership of the Hindu female which has been changed into full ownership by virtue of the aforesaid section. If a female has no rights at all in the property, e. g., if she is a trespasser, she cannot obviously become the owner of the property'. After her marriage on 5th of March 1956, Giano could not be said to be in possession of any estate, limited or otherwise. She may have retained possession but this was without any semblance of right. Section 14 does not and could not intend to confer an absolute estate on a Hindu female over property which she had no right to hold or possess.

5. In my opinion, there is no force in this appeal which must fail and is dismissed. In the circumstances, however, I would leave the parties to bear their own costs.


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