(1) THIS Letters Patent Appeal filed by Shrimati Soma is directed against the Judgment of learned Single judge whereby he accepted the appeal of Brij Lal defendant-respondent, reversed the decisions of the courts below and dismissed the suit for possession of the land in dispute brought by the appellant.
(2) The brief facts of the case are that Kishan Chand respondent NO. 2, who was a Kamboh by caste, made a gift of the land in dispute measuring 27 Bighas and 4 Biswas in favour of his wife Shrimati Indi as per registered gift deed dated the 3rd of June 1944. Shrimati Soma appellant is the daughter of Kishan Chand and Shrimati Indi, Shrimati India died in November 1948 leaving the appellant who was then a minor as her sole heir. During the minority of the appellant, her father Kishan Chand respondent No. 2 mortgaged 11 Bighas and 2 biswas out of the land in dispute for Rs. 2,5000/- in favour of Brij Lal respondent on the 8th of November 1951. Subsequently, Kishan Chand created another mortgage of 6 Bighas and 2 Biswas out of the land in dispute in favour of one Kishan Chand, son of Mathra Dass, for Rs. 1,000/-. On 23rd April 1955 Kishan Chand respondent NO. 2 sold the entire land in dispute in favour of Brij Lal respondent for Rs. 8,000/-. Out of the sale consideration, the two previous mortgages of portions of the land in dispute were to be redeemed. According to the appellant as she had become the sole owner of the land in dispute after the death of her mother Shrimati Indi, her father Kishan Chand respondent had no right to alienate the same. The appellant, accordingly, brought the present suit for possession of the land in dispute.
(3) The suit was resisted by Brij Lal respondent who pleaded that the plaintiff was not the daughter of Shrimati Indi and that Kishan Chand respondent No. 2 had not made a valid gift of the land in dispute in favour of his wife Shrimati Ind. Kishan Chand was stated to be governed by custom in matters of alimentation and succession. Brij Lal also claimed protection of his title under section 41 of the Transfer of Property Act.
(4) The trial Court held that the plaintiff was the daughter of Shrimati Indi and Kishan Chand respondent No. 2, and that Kishan Chand had made a valid gift of the land in favour of Shrimati Indi. It was further held that Kishan Chand was not governed by custom in matters of alienation and succession, and that Brij Lal respondent was not entitled to claim protection under S. 41 of the Transfer of property Act because of the minority of the appellant. A decree for possession in favour of the appellant was, accordingly, awarded. On appeal the findings of the trial court were affirmed by the learned Additional District Judge. Ambala. It was held that by virtue of the gift-deed dated the 3rd of June 1944 Shrimati Indi had become the absolute owner of the land in dispute and after her death plaintiff had become the owner of the same. The appeal fitted by Brij Lal respondent was, accordingly, dismissed.
(5) On second appeal the learned Single judge referred to gift-deed (Exhibit P. 1) in favour of Shrimati Indi and held that it was not the intention of Kishan Chand while making the gift to pass absolute estate to Shrimati Indi and all that he wanted was that she should enjoy the property but keep it intact and not alienate it in any form or manner. It was, in the circumstances, held that on the death of Shrimati Indi the property in dispute would go to her husband Kishan Chand and not to the appellant as her daughter. Brij Lal's appeal was, accordingly accepted and the plaintiffs suit was dismissed.
(6) In Letters Patent Appeal it has been argued by Mr. Jain on behalf of the appellant that Shrimati Indi became absolute owner of the land in dispute under the deed of gift and that the learned Single judge erred in reversing the findings of the courts below in this respect. After giving the matter my earnest consideration I am of the view that there is considerable force in the above contention. It is recited in the gift deed that Kishan Chand was making a gift of the land in dispute along with all the appurtenant rights in favour of his wife Shrimati Indi, and that she had taken possession of the gifted land as an owner in the same manner as he had been doing it previously. It was further distinctly stated that whatever rights or powers of ownership the donor had in the gifted land would vest and would remain vested in the donee and that the donor or his heirs would have no right, title or interest in that land, and that if any one of them ever set up such a claim he would be deemed to be a false claimant. The above words used in the deed of gift, in my opinion clearly go to show that the intention of Kishan Chand in executing the deed of gift, in my opinion clearly go to show that the intention of Kishan Chand in executing the deed of gift was to vest the same right of ownership in the land in dispute in Shrimati Indi as had been vested in him. It was no doubt further added in the gift-deed that the done would have no right to alienate the gifted property but these words have to be read in the content of the words used earlier in the deed of gift and the language used in the deed of gift taken as a whole conveys the impression that the intention of the donor was to vest an absolute estate in Shrimati Indi. Apart from that, the proposition seems to be fairly settled that where in an earlier part of a document some property is given absolutely to a person but later on other directions are inserted in that document which conflict with and take away from the absolute title given in the earlier portion, in such an event the earlier disposition of absolute title would prevail and later direction is to be disregarded. I may in this context refer to the following observations of their lordship of the supreme court in Ramkishorelal v. Kamalnarayan, AIR 1963 SC 890:--
' Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens? It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsucucuesusful attempts to restrict the title already given. ( See Mohd.Kamgar Shah v. Jagdish Chandra Deo Dhabal Deo, (1960) 3 SCR 604 at p. 611: AIR 1960 SC 953 at p. 957). It is clear, however, that an attempt should always be made to read the two parts of the documents harmoniously, if possible; it is only when this is not possible, e.g., where an absolute title is given in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void.'
The learned Single Judge relied on case Radhey Shiam v. Official Receiver of the Estate of Ram Charan Das, AIR 1949 All 464,. but perusal of that case would go to show that the decision in that case was arrived at in the context of its own facts. The gift in that case had been made in favour of the wife with the object of safeguarding her comforts against all possible trouble in future that might arise from the adopted son of the donor. In any case, in view of the later pronouncement reproduced above of their Lordships of the Supreme court, the rule of construction must be held to be well settled that in case of a conflict between an earlier disposition of an absolute title and a later direction curtailing the conferment of absolute title the earlier disposition should prevail and the later direction should be disregarded. I would, accordingly, hold that Shrimati Indi became absolute owner of the land in dispute as a result of the gift made in her favour under the deed of gift.
(7) Shrimati Indi died in November 1948 long before the Hindu succession Act came into force, and the plaintiff who was the daughter of Shrimati Indi. in the circumstances became entitled to the property left by Shrimati Indi as against Kishan Chand who was husband of Shrimati Indi. Para 147 of Principles of Hindu Law by D.F. Mulla, 12th Edition, makes it clear that so far as succession to stridhana other than sulka is concerned, a daughter is a preferential heir compared to the husband of the deceased owner.
(8) Mr. Kaushal on behalf of the respondent has argued that Shrimati Indi had another unmarried daughter Bimla who died 4 or 5 years after the death of Shrimati Indi, as is clear from the statements of Phul Chand ( P. W. 1) and Kishan Chand (P. W. 8) It is urged that after the death of Shrimati Indi, Bimla had one half share in the land in dispute and on the death of Bimla her one half share passed not to the plaintiff but to her father Kishan Chand. Reference in this connection is made to para 145 of principles of Hindu law by Mulla according to which father is a preferential heir to a maiden's property compared to a sister. The plaintiff-appellant, in the circumstances according to the learned counsel was not entitled to a decree for more than one half share of the land in dispute. In my opinion, the above contention is not well founded, for it overlooks the fact the Bimla got only a life east in her half share of the land in dispute and on her (Bimla's) death, we have to look not to the heirs of Bimla but to those of Shrimati Indi. This is made clear in para 162 of Principles of Hindu law by Mulla wherein it is stated that according to schools other than Bombay school a female inheriting stridhana takes a limited interest in it. and on her death it passes not to her heirs but to the next stridhana heirs of the female from whom she inherited it. This has been further reiterated in para 169 of the aforesaid book, and it reads as under:--
' According to the Bengal, Benares, Mithila and Madras schools, the rule laid down in para 168, sub-para (3), as to property inherited by a female from a male, applied also to property inherited by her from female. Consequently a female inheriting property (stridhana) from a takes only a limited estate in such property, and at her death the property passes not to her heirs, but to the next stridhana heirs of the female from whom she inherited it (b).'
The above rule was followed by a Division Bench ( Harries C.J. and Din Mohammad J). in Kehar Singh v. Attar Singh AIR 1944 Lah 442.
(9) The plaintiff-appellant, as stated above, is a preferential heir of Shrimati Indi compared to Kishan Chand. In view of that, the appellant to became entitled to the whole of the land in dispute to the exclusion of Kishan Chand. Kishan Chand, in the circumstances had not right to alienate the aforesaid land.
(10) I, accordingly, accept the appeal, set aside the judgment and decree of the learned Single Judge and restore the decree for possession of the land in dispute which was awarded by the trial Court in favour of the plaintiff-appellant against the defendant-respondent. In view of the facts of the case, I leave the parties to hear their own costs throughout.
A.N. Grover, J.
(11) I agree.
(12) Appeal allowed.