H.R. Khanna, J.
1. This appeal filed by Harnam Kaur and another is directed against the judgment and decree of learned Additional District Judge, Ludhiana, whereby, he affirmed the declaratory decree granted in favour of the plaintiff-respondent by the trial Court.
2. Harnam Kaur, widow of Chanan Singh a jat, resident of village Rajewal, TehsiI Samrala, District Ludhiana, executed a registered will dated 4-1-1954 in respect of her estate in favour of Mohinder Kaur, grand-daughter of Sher Singh brother of Chanan Singh, Sher Singh thereupon brought the present suit for a declaration that the aforesaid will executed by Harnam Kaur, who was impleaded as defendant No. 1, in favour of Mohinder Kaur, defendant No. 2, would not affect the reversionary rights of the plaintiff after the death or re-marriage of Harnam Kaur. According to the plaintiff, the parties were governed by Customary Law and the property comprised in the Will was ancestral of Chanan Singh qua the plaintiff.
The suit was contested by Harnam Kaur and Mohinder Kaur. According to them, Chanan Singh, husband of Harnam Kaur, made a gift of two-third share of the property in dispute in favour of Harnam Kaur during his lifetime and thus made her full owner of two-third share. The will in favour of Mohinder Kaur was stated to have been made in lieu of services and was stated to be valid under customary Law. Following issues were framed by the trial Court:
1. Whether Harnam Kaur holds the property in dispute as a limited owner?
2. Whether Chanan Singh gifted any part of the property in dispute in favour of Harnam Kaur, if so, what is its effect?
3. Whether the defendant No. 1 made a valid will favouring defendant No. 2?
3-A. Whether the property in suit is ancestral qua the plaintiff and Chanan Singh deceased? Issues 1, 2 and 3 were decided in favour of the plaintiff and against the defendant. On issue No. 3-A, the finding was that the property in dispute was not ancestral of Chanan Singh. As a result of the findings on the different issues, the decree prayed for was granted in favour of the plaintiff. The two defendants filed an appeal but their appeal was dismissed by learned Additional District Judge, Ludhiana.
3. In second appeal, it has been contended by the learned counsel for the appellants that the finding of the Courts below on the point as to whether Harnam Kaur field the property in dispute as a limited owner or not is not correct. In this respect, I find that Exhibit 0-2 is the copy of mutation No. 973 which was sanctioned in favour of Harnam Kaur on 28-5-1943 when Chanan Singh made a gift of two-third share in his land in favour of Harnam Kaur. It was an oral gift and the order of the Revenue Officer shows that at the time of the mutation Chanan Singh, Harnam Kaur and Sher Singh were present. Sher Singh plaintiff then stated that he had no objection to the gift provided Harnam Kaur agreed not to squander the property. Harnam Kaur then gave an undertaking not to squander the land gifted in her favour. The gift itself was described as a Tamlik. The mutation was thereafter sanctioned in favour of Harnam Kaur. The learned counsel for the appellants has cited Ram Gopal v. Nand Lal, AIR 1951 SC 139, wherein it has been held that there is no warrant for the proposition 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, unless such power is expressly conferred upon her. It has further been laid down that to convey an absolute estate to a Hindu female, no express power of alienation need be given and that it is enough if words are used of such amplitude as would convey full rights of ownership. The word 'Tamliknama' was also considered in the above' authority and it was held to mean a document by which ownership rights were transferred.
4. The decision of the question as to whether a gift by a husband in favour of his wife makes her absolute owner of the property gifted in her favour or whether she gets a life interest in that property would depend primarily on the intention of the parties. The trial Court held that the intention behind making the gift by Chanan Singh in favour of Harnam Kaur was merely to provide for her maintenance and was not to make her absolute owner of the gifted land. The learned Additional District Judge on appeal also came to the conclusion that the gift in favour et Harnam Kaur was intended to be only for her lifetime and that she acquired only a life interest in the gifted property and she had no power of disposal over it. These are essentially findings of fact and in second appeal I cannot interfere with the same. It is settled law that the High Court cannot in second appeal interfere with the finding of fact of the lower appellate Court however grossly erroneous that finding may be. I, therefore, am of the view that the finding of the Courts below on issues 1 and 2 cannot be interfered with in second appeal.
5. The learned counsel for the appellants has next argued that on account of the coming into force of the Hindu Succession Act the plaintiff's suit was liable to be dismissed. The learned counsel has in this context referred to Section 14 of the Hindu Succession Act which reads as under:
'14. (1) 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.
Explanation. In this sub-section, 'property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or alter her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribed a restricted estate in such property.'
Reference has also been made to a case Lachmeshwar Prasad v. Keshwar Lal, AIR 1941 FC 5, the relevant head note of which reads as under:--
'The hearing of an appeal under the procedural law of India is in the nature of re-hearing and therefore in moulding the relief to be granted in a case on appeal, the appellate Court is entitled to take into account even facts and events which have come into existence after the decree appealed against. Consequently, the appellate Court is competent to take into account legislative changes since the decision in appeal was given and its powers are not confined only to see whether the lower Court's decision was correct according to the law as it stood at the time when Its decision was given.'
The above observations go to show that the Court in appeal should take cognizance of legislative changes and this proposition indeed has not been controverted before me on behalf of the respondent. It is now to be seen as to what is the effect of the Hindu Succession Act on the present case.
6. So far as two-third share in the land which was gifted in favour of Harnam Kaur is concerned, the Courts below have held that she under the gift made in her favour has a restricted estate and I have held above that the findings of the Courts below in this respect cannot be interfered with. The aforesaid two-third share in land is covered by Sub-section (2) of Section 14 reproduced above and as such the appellants cannot derive much benefit from Section 14 qua that two-third share.
(7) So far as the property of Harnam Kaur Is concerned, which is not covered by the gift made by Chanan Singh, Harnam Kaur became a full owner of that property by virtue of the provisions of Sub-section (1) of Section 14 of the Hindu Succession Act. As the Will made by Harnam Kaur operates after her death and as Harnam Kaur has become now full owner of the above mentioned property, she has an absolute power to bequeath the same. The learned counsel for the plaintiff-respondent has cited a Full Bench case Amar Singh v. Sewa Ram, 1960-62 Pun LR 537: (AIR 1960 Punj 530), wherein the relevant head note reads as under:--
'Held that the collaterals (reversioners) of the last Hindu male-holder, are entitled to file, or, if filed already, to continue, a suit, after the enforcement of the Hindu Succession Act, challenging an alienation, effected, prior to the enforcement of the Act by an intervening female heir who at the time of alienation sold only a widow's estate.'
The above case related to a gift made by a widow and it is argued on behalf of the respondent that alienation under the Customary Law includes a testamentary disposition and that a reversioner under Customary Law has as much right to file a suit for declaration in respect of a Will as he has in the case of a gift. In this respect, I am of the view that even though a Will is treated as an alienation like a gift or a sale for the purpose of a suit for declaration by a reversioner under the Customary law, there is one essential difference between a Will and an alienation in the nature of a gift or sale. In the case of a gift or sale, the donor immediately divests himself of the property alienated while a Will speaks only after the death of testator. A legatee in whose favour the property has been dequeatned under a Will gets no immediate interest in the property bequeathed on the execution of the Will but gets that interest only on the death of the testator. It is open to the testator, if he so chooses, to cancel the Will or to bequeath his property in favour of a different person by executing a subsequent Will. This basic difference between a Will and other alienation in the nature of a gift or sale cannot be lost sight of. The property of Chanan Singh, which came in the hand of Harnam Kaur and which was not covered by the gift made by Chanan Singh, as stated earlier, became the absolute property of Harnam Kaur as soon as the Hindu Succession Act came into force in 1956 because of the provisions of Sub-section (1) of Section 14 of the Hindu Succession Act. She had since then full powers to bequeath that property. Whatever limitation there was on the power of Harnam Kaur to execute Will in respect of that property, ceased to exist after 1956. The infirmity in the Will in respect of the above mentioned property, which was initially there because of the limited estate or Harnam Kaur, was cured because Harnam Kaur became a full owner of the aforesaid property before the date when the Will Is to come Into operation.
8. It is significant that Harnam Kaur is still sticking to the Will and wants it to be given effect to after her death. This is apparent from the fact that Harnam Kaur along with Mohinder Kaur filed first an appeal in the lower appellate Court and thereafter in this Court. Harnam Kaur has thus clearly indicated after the coming into force of the Hindu Succession Act that she wants the Will, Exhibit D-1 to be acted upon and her property to go to Mohinder Kaur in accordance with the Will. The decree for declaration in favour of the plaintiff-respondent in respect of the property of which Harnam Kaur has now become full owner would hardly prove to be an effective decree, because Harnam Kaur can set it at naught by executing another Will in respect of that property. Such a new Will under the law as it stands at present cannot be assailed. It is well established that a decree for declaration is in the discretion of the Court and a Court, in my opinion, should be reluctant to pass a declaratory decree which can be set at naught or got rid of by a party by executing another Will at her own sweet will. On this ground also the decree for declaration in so far as it relates to property of Harnam Kaur of which she has become full owner cannot be maintained.
9. 1 accordingly partially accept the appeal, I maintained the decree passed by the Courts below about the Will, Exhibit D.1, in respect of the two-third share in land which was gifted by Chanan Singh in favour of Harnam Kaur. The suit regarding the Will in so far as it affectsproperty of Harnam Kaur not covered by the aforesaid giltis dismissed. Considering all circumstances, I leave theparties to bear their own costs throughout.