1. The following pedigree-table will be helpful in understanding the facts of this case:--
KANHAYA___________________|________________________| |Maghar Singh Kesar Singh____________|____________ ________|_________| | | |Sewa Singh Namak Singh Sbankar Singh Bela Singh(Died without leaving (Plaintiff). (died issueless). |any widow or issue). |= Shrimati Nanti (wife)= Shrimati Chindo (daughter)(Defendant No. 1).
2. The facts giving rise to this second appeal are these. Bela Singh died on 26th March, 1947. His property was mutated in favour of his widow Shrimati Nanti on 11th June, 1947. She died in December, 1948 and thereafter, the said property was mutated in favour of Nanak Sing and Sewa Singh in June, 1949. In August,. 1958, Chindo brought a suit for possession of this property against Nanak Singh and Sewa Singh on the ground that the said property was originally occupied by her father Bela Singh and the same was non-ancestral qua the defendants. She was a preferential heir as against the defendants and was entitled to get possession of the same as against them. She denied that the defendants were the collaterals of her deceased father. Her case, in the alternative, was that at any rate, she was entitled to remain in its possession till her marriage.
3. The suit was resisted by Nanak Singh and Sewa Singh, who denied the plaintiff's relationship with Bela Singh. According to them the property was ancestral and they, being the collaterals of Bela Singh, were the immediate heirs of the deceased under custom by which they were governed.
4. On 14th July, 1959, the Senior Subordinate Judge held that the property was ancestral and the parties were governed by custom. The defendants were the third degree collaterals of Bela Singh and the plaintiff was his daughter. She was therefore, entitled to get possession of the property in question for her maintenance and retain the same till her marriage, after which the possession of the property would revert to Nanak Singh and Sewa Singh, who were superior heirs to the said land.
5. On the basis of the above judgment, mutation was effected by the revenue authorities on 26th March, 1960. It appears that Sewa Sing died thereafter. On apprehending that Chindo was going to mortgage a part of this property, Nanak Singh, in September, 1967, issued notices through a counsel to Chindo and Santa Singh father of Gurmej Singh, defendant No. 2, informing them that Chindo had no right to alienate this property in any manner and if anybody got the property either on sale or mortgage from her, he would do so on his own risk and responsibility. On 8th March, 1968, Chindo actually mortgaged with possession 12 Kanals out of the land in question in favour of Gurmej Singh son of Santa Singh for 10 years in lieu of Rs. 3,000/-. In November, 1968, Nanak Singh brought a suit for a declaration, out of which the present second appeal has arisen, against both Chindo and Gurmej Singh, defendants Nos. 1 and 2, challenging the mortgage in question saying that it would not be binding on his rights, the same being without consideration and necessity. It was alleged that the land was ancestral and the parties were governed by custom. Chindo was not the full owner of the property and she had no right to alienate the same in any manner. She could retain its possession till her marriage. The plaintiff relied on the judgment dated 14th July, 1959, in support of his pleas.
6. The suit was resisted by the defendants, who controverted the allegations made by the plaintiff and also pleaded that after the enforcement of the Hindu Succession Act, 1956, Chindo had become the complete owner of the property.
7. The trial Judge dismissed the suit, holding that the mortgage-deed executed by defendant No. 1 in favour of defendant No. 2 was not illegal or void. It was found that the judgment dated 14th July, 1959, had no effect on the rights of Chindo, after the coming into force of the Hindu Succession Act under which she had become the full owner of the property. That judgment did not act as respondent judicata between the parties. It was also held that the plaintiff was a minor at the time she brought this suit, which resulted in the judgment dated 14th July, 1959.
8. When the matter went in appeal before the learned Senior Subordinate Judge, Gurdaspur, he dismissed the same, and confirmed the findings of the trial Court. The present second appeal has been directed against that decision.
9. The only point urged by the learned counsel for the appellant was that the Courts below were in error in holding that Chindo had become the full owner of the land in dispute by virtue of Section 14(1) of the Hindu Succession Act, 1956, hereinafter called the Act, and, consequently, the plaintiff could not challenge the mortgage effected by her in favour of Gurmej Singh. Chindo, according to the counsel, was never in possession of the land before the Act came into force and she only got a restricted estate by virtue of the decree dated 14th July, 1959. It was only in pursuance of this decree that Chindo obtained possession of the land in lieu of maintenance on the condition that her possession would be till her marriage, after which the said land would revert to the plaintiff and his brother Sewa, Singh, who were superior heirs to this property as against her. In view of these facts, so argued the counsel, Section 14(1) had no application and the case would be governed by Section 14(2) of the Act Chindo would not become the full owner of this property.
Section 14 of the Act reads:
'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 after 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 prescribe a restricted estate in such property.'
10. The point that requires determination is whether the provisions of sub-section (1) or (2) of Section 14 will apply in the instant case. This section has been the subject-matter of several decisions of the Supreme Court. It has now been repeatedly held that sub-section (2) of Section 14 of the Act will come into operation only if acquisition in any of the methods indicated therein was made for the first time without there being any pre-existing right in the female Hindu, who was in possession of the property and further that his sub-section was more in the nature of a proviso or an exception to sub-section (1). It has also been held that the word 'acquired' in sub-section (1) had to be given the widest possible meaning. That would be so because of the language of the explanation which made sub-section(1)applicable to acquisition of property in the manners mentioned therein. The word 'possessed' in sub-section (1) had been used in its widest connotation and it might be either actual or constructive or in any form recognised by law. In the context in which it had been used in Section 14 it meant the state of owning or having in one's hand or power. Reference in this connection may be made to the Supreme Court decision in Badri Pershad v. Smt. Kanso Devi, AIR 1970 SC 1963. reliance in that decision was also placed on the earlier two Supreme Court rulings in G. T. M. Kotturuswami v. Setra Veerayya, AIR 1959 SC 577; and Sukh Ram v. Gauri Shankar, AIR 1968 SC 365. In the present case. Chindo did not acquire this property for the first time by virtue of the judgment dated 14th July, 1959. She had a pre-existing right therein, because the last male-holder of this property was admittedly her father Bela Singh. The parties were governed by custom and on Bela Singh's death, the property was mutated in favour of his widow Nanti for her lifetime and after her death. It had to go to Bela Singh's daughter Chindo for her maintenance till her marriage. This is the position under the customary law. A daughter has a right of maintenance out of the estate of her father till she is married, even if the property is ancestral. That being so, she did not acquire rights in the property for the first time under the decree dated 14th July, 1959. Under the explanation to Section 14(1), even if the property is acquired by a female Hindu in lieu of maintenance, it would be included in the word 'property' mentioned in Section 14(1) and if the same is possessed by a female Hindu and whether it is acquired before or after the commencement of the Ac, it shall be held by her as full owner thereof and not as a limited owner under Section 14(2). The Courts below were, therefore, right in holding that Chindo had become the full owner of this property and the present suit for a declaration regarding the mortgage effected by her was, therefore, not competent. This was the only contention raised by the learned counsel for the appellant and in my opinion, it is without an y merit. This apart, the mortgage, that is being challenged by the plaintiff, was found to be for consideration and necessity by the trial Court and this finding was not disputed by the plaintiff before the lower Appellate Court. That being so, the suit for a declaration that the said mortgage was not binding on the plaintiff, being without necessity and consideration, was liable to be dismissed on that ground as well.
11. It may be mentioned that the learned counsel for the respondent also raised the contention that the suit for a declaration under custom by a collateral challenging an alienation of ancestral property did not lei in view of the recent Punjab Custom (Power to Contest) Amendment Act, 1973, and it had been held by a number of learned Single Judges of this Court that this amendment in the law applied to the pending appeals as well. Reference in this connection was made by the learned counsel inter alia to the decision of B.R. Tuli, J. in Bant Singh v. Gurpreet Singh, (1973) 75 Pun LR 797, where it was held:
'That Section 7 of the Punjab Custom (Power to Contest) Act, 1920 was amended by substituting the words 'immovable property whether ancestral or non-ancestral' in place of the words 'non-ancestral' and reading the section as amended, its language clearly leads to the conclusion that no reversioner is permitted to contest an alienation of immovable property, whether ancestral or non-ancestral, after the coming into force of he Amending Act. It has nothing to do with the date of the alienation. It concerns itself with the power to contest an alienation. That power cannot be allowed to be exercised after the amendment of Section 7 by the Amending Act. It is a well-established principle of law that any change in law, which has taken place between the date of the decree and the decision of the appeal, has to be taken into consideration so that the appellate decree is in conformity with the law as existing on the date it is passed. Therefore, the appeal of the alienee could not be dismissed, as that would be permitting the reversioners to contest the alienation, which is not permissible.'
It is needless to decide this point, because I am informed that a Letters Patent Appeal No. 541 of 1973 has been filed against one of such decisions and arguments in that case have been concluded though the judgment has not been pronounced.
As I have already mentioned above, only one contention was raised by the learned counsel for the appellant before me and the same has been found by me to be without any substance. The result is that this appeal fails and is dismissed. In the circumstances of this case, however I will make no order as to costs.
12. Appeal dismissed.