1. This is first appeal by Raj Kumar and other defendants against Sardarni Prem Parkash Kaur plaintiff. It is directed against the judgment of Shri Om Parkash Saini, Sub-Judge 1st Class, Ludhiana dated August 31, 1962 decreeing the suit of the plaintiff for possession of a building bearing unit number B.II 1745 situated in the town of Ludhiana.
2. The property in dispute belonged to Sardar Gajjan Singh. He had a son Jaswant Singh. The plaintiff was married to Jaswant Singh. On August 8, 1928, Sardar Gajjan Singh executed a will in favour of Jaswant Singh bequeathing all his property including the property in dispute. In that will, he provided that Smt. Ajmer Kaur, mother of Jaswant Singh shall have the right of residence in the property during her lifetime. Sardar Gajjan Singh died on June 10, 1929. Jaswant Singh succeeded to the property by virtue of inheritance as well as on the strength of will. Jaswant Singh died on March 12, 1936. The plaintiff succeeded to his entire property including the property in dispute. Smt. Ajmer Kaur died on April 6, 1961. The defendants took from Smt. Ajmer Kaur on rent the property in dispute. The plaintiff filed suit for possession of the property against Raj Kumar, Mangat Rai and Kulwant Rai partners of the firm Messrs Khushal Singh & Company and the firm itself pleading that Smt. Ajmer Kaur being entitled only to right of residence of the property in dispute had no right to let out the same to the defendants. It was also pleaded in the alternative that even if Smt. Ajmer Kaur could give the property on rent, the plaintiff is not bound after her death by the tenancy so created in favour of the defendants. It was pleaded on behalf of the plaintiff that the possession of the defendants is of trespassers.
3. Mangat Rai defendant filed written statement saying that he had no concern with the firm Messrs Khushal Singh & Company and he had been unnecessarily impleaded in the suit as a defendant. In their written statement, the other three defendants pleaded that they are tenants under the plaintiff on the basis of rent deed dated September 8, 1953 executed by Raj Kumar in favour of the plaintiff, when she was the owner in possession of the property in dispute. They also pleaded in the alternative that the rights of tenancy created by Smt. Ajmer Kaur were inherited by the plaintiff as successor land-lady of the defendants and consequently the defendants continued to be the tenants of the plaintiff. In the replication filed on behalf of the plaintiff, the plaintiff denied execution of rent deed dated September 8, 1953 in her favour. The plea of the defendants that Smt. Ajmer Kaur was entitled to let out the property in dispute in favour of the defendants was also repudiated.
4. On the above pleadings of the parties, the Trial Court framed the following two issues:--
(1) Whether the defendants are in possession of the property in suit as trespassers?
(2) Whether the defendants took this property on rent from the plaintiff?
5. The appeal came up for arguments on March 23, 1971. Under Issue No. 2, the counsel for the defendants-appellants brought to the notice of the Court that in order to satisfactorily prove entry, Exhibit D-4 pertaining to the execution of rent deed dated September 8, 1953 by Raj Kumar in favour of plaintiff, production of the original register, in which that entry exists, by Bihari lal D. W., petition-writer, who proved that entry and the recording of evidence of R. S. Phulka, the attorney of the plaintiff, who was stated by that witness to have been present at the time the rent deed was executed and the entry in that register was made, was necessary. Attempts made on behalf of the defendants to produce that register, however, turned out to be infructuous. Bihari lal and R. S. Phoolka have been examined as Court witnesses.
6. Under Issue No. 1, Shri H. L. Sibal appearing on behalf of the defendants has contended that by virtue of Section 14 of the Hindu Succession Act, 1956, hereinafter called the Act, Smt. Ajmer Kaur, who was residing in the property on that date, when that property had been let out by her to the defendants, became absolute owner of the property on June 17, 1956, when the Act came into force and consequently on her death, the tenancy created by Smt. Ajmer Kaur would be heritable by the plaintiff and the defendants could not be held to be trespassers on that property. Section 14 of the Act runs as under:--
'(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.'
7. By virtue of Explanation appended to sub-section (1) of Section 14 of the Act, the definition of the word, 'property' occurring in that sub-section has been extended so as to include property acquired by a female Hindu in lieu of maintenance or arrears of maintenance. It is contended by Shri Sibal that as referred to in Clause 16 of the will dated August 8, 1928 executed by Sardar Gajjan Singh, Smt. Ajmer Kaur was entitled to Rs.60 per mensem by way of maintenance and also to the right of residence, that the provision in that clause for right of residence was by way of maintenance apart from the monthly monetary maintenance allowance provided therein and that the property in dispute having been acquired by her in lieu of maintenance and she being in its possession on the date the Act came into force, she became absolute owner of the property. In order that sub-section (1) of Section 14 of the Act may apply, the following three conditions must be satisfied on the date the Act came into force:--
(i) the property must be possessed by a female Hindu;
(ii) the property possessed by her must have been acquired and
(iii) she must have been a limited owner.
8. In the absence of any one of the three conditions being satisfied, Section 14(1) will not become operative. To attract the applicability of that provision, mere showing of possession of a female Hindu will not result in maturity of title of full ownership on the date when the Act came into force. It is further to be shown on her behalf that the property, of which she was in possession on that date had been acquired by her as a limited owner.
9. The word, 'acquired' implies that she got or there came or fell to her some right, title or interest in the property, by virtue of which she could hold the property and claim to be in her exclusive possession and no one else could compete with her for or defeat or frustrate whatever she acquired. As is clearly provided in Clause 16 of the will, title of ownership of the property had been bequeathed by Sardar Gajjan Singh testator in favour of Jaswant Singh. Both by inheritance as well as by will, the ownership of property after the death of Sardar Gajjan Singh came to vest in Jaswant Singh. The provision for residence made in that clause runs as follows:--
'My son will provide residential accommodation to both of them (the two widows including Smt. Ajmer Kaur) either at Ludhiana or Narangwal or wherever he might like.'
10. Smt. Ajmer Kaur was only entitled to reside in any part of the property, which was allowed to be occupied by her for her stay. As the term of that clause shows, he could make her reside anywhere he liked. She could be made to live in a portion of the residence, in which he was residing or she could be provided accommodation in residential property either in village Narangwal or in the town of Ludhiana. Right to reside in that limited sense was subject to the permission or license of Jaswant Singh in respect of any property she was permitted to occupy for her residential purpose. It is nothing but a restricted obligation of a son as also enjoined by the will to make provision for accommodation of his mother. It cannot be legitimately contended that the property in dispute possessed by her in that limited sense had been acquired by her. Thus the second condition of sub-section (1) of Section 14 of the Act namely, the property having been acquired by Smt. Ajmer Kaur before the Act came into force, has not been satisfied.
11. The third condition that Smt. Ajmer Kaur was limited owner on the date when the Act came into force cannot at all be said to have been fulfilled, as the ownership vested in Jaswant Singh and she had the bare right of any building or part of the building, which Jaswant Singh in his discretion considered to be sufficient for her residential purpose and allotted to her for her stay. According to the scope of the above reproduced term of Clause 16 of the will, Jaswant Singh could at any time ask her to vacate the property in dispute and to stay elsewhere in any other item or residential property as desired by him. Thus, her occupation of the property was of a transitory licensee without any right to maintain a claim for possession of the property in dispute for the whole of her life. She could not be held to enjoy the status of a limited owner while in occupation of any portion of the property. This type of right of residence, if it can at all be described as such, is purely a personal right. It inheres only in the person, who has been assigned that right. This right does not admit of alienation.
12. The will directed the son to provide his mother with the facility of residential accommodation. Even otherwise as much as the will provided, a son has to provide his widowed mother with residential accommodation. Such a provision in the will could not be regarded as having conferred any right on Smt. Ajmer Kaur so as to make her a limited owner of the property.
13. The expression, 'limited owner' in sub-section (1) of Section 14 of the Act came up for consideration before the Supreme Court in R. B. S. S. Munalal v. S. S. Rajkumar, AIR 1962 SC 1493. Their Lordships observed as under:--
'By Section 14(1), the legislature sought to convert the interest of a female Hindu, which under the Sastric Hindu Law would have been regarded as a limited interest, into an absolute interest.'
14. As the language of sub-section (1) of Section 14 shows, any property possessed by a female Hindu and acquired by her shall be held by her as full owner and not as a limited owner. The provision implies that on the date the Act came into force, she shall cease to be a limited owner and her status as limited owner shall stand converted into full-fledged owner. This presupposes the existence of her status as a limited owner on the date the Act was enforced. It is only if a female Hindu, who was a limited owner of property on the date, when the Act came into force and the property was possessed and acquired by her that her limited ownership could be held to have matured into absolute ownership. If on her behalf, it is contended that her title matured into absolute ownership on that date, it should not only be shown that the property claimed to have matured into title of ownership, was possessed by her and had been acquired by her, but it must also be further shown that she possessed it and had acquired it in her capacity as a limited owner. Thus, the ingredient of limited ownership to be established, for claim of maturity into title of ownership is a condition precedent and sine qua non of sub-section (1) of Section 14. Without the property possessed by a female Hindu having been shown to have been so done as a limited owner, she could not claim title of full ownership under sub-section (1) of Section 14. Supposing a female Hindu was, on the date, the Act came into force, in possession of proprietary right either as a mortgagee or as a tenant, she could be held to have satisfied the condition of property having been possessed and acquired by her but she could in no way claim to be a limited owner so as to have the title of full-fledged ownership conferred upon her. The owner of such property will, in spite of her possession and acquisition of the property, be the mortgagor or the landlord, from whom she has acquired the right to be in its possession.
15. A limited owner no doubt is not a full and complete owner but the concept of limited ownership implies certain attributes or elements of ownership though limited or restricted in scope or character. Illustratively, a widow, under Customary Law succeeding to property of her husband is under certain restrictions against alienation by her. Subject to those limitations or restrictions, which entail the rights of a limited owner, she is virtually the owner and can within the scope of those restrictions or limitations deal with the property as she likes. The right of occupation and user by Smt. Ajmer Kaur of a part of the property bequeathed as owner to Jaswant Singh, did not carry with it any characteristics of limited ownership. Hence, she cannot be held to be limited owner of the property, in which she was allowed to stay or reside.
16. Thus, the two ingredients of the proprietary right having been acquired by Smt. Ajmer Kaur and she being a limited owner as provided in sub-section (1) of Section 14 have not been satisfied. These two ingredients have to be satisfied even if the amplified definition of the word, 'property' as given in the Explanation appended to sub-section (1) of Section 14 is taken into consideration. These ingredients nonetheless control even the extended definition.
17. No help could either be sought by the defendants from the provision of sub-section (2) of Section 14. That provision rather helps the plaintiff. Sub-section (2) is set out hereunder:--
'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, or award prescribe a restricted estate in such property.'
18. According to sub-section (2), if a property is claimed to have been acquired by a will and the terms of the will provide for restricted estate in that property, sub-section (1) shall not apply. Provision in the will for arrangement of residential accommodation for Smt. Ajmer Kaur in any portion of the property as her son, Jaswant Singh determined and nothing further resulted in restricting her estate in the property in dispute. The will provided merely a right of use and occupation unaccompanied by any right of transfer. The nature of her occupation of the property is covered by sub-section (2) of Section 14 of the Act and does not confer on her the status of a limited owner. As Smt. Ajmer Kaur had no right to lease the property, the defendants qua the plaintiff are trespassers and liable of dispossession.
19. Now, I come to the second issue. It is stated on behalf of the defendants that rent deed was executed on September 8, 1953 by Raj Kumar in favour of the plaintiff. As the burden of Issue No. 2 was upon the defendants, they produced evidence of Bihari Lal D. W., petition writer to prove the execution of rent deed on behalf of Raj Kumar in favour of the plaintiff. He placed on the file entry from the register said to have been maintained as petition writer. That entry has been marked as D-4. According to that entry, a rent deed on a stamp paper of Rs.6/- had been executed by Raj Kumar in favour of the plaintiff on September 8, 1953. As contained in that entry, the rent of the premises in dispute fixed was Rs.120/- per mensem and the tenancy was for a period of six months. The plaintiff denied that any such document was executed in her favour. Bihari Lal stated that the document was executed by Raj Kumar defendant and that on behalf of the plaintiff, one Phulka, her attorney was present. In support of the statement of Bihari Lal, the defendants produced two witnesses, Jaidev Singh and Khauroo Mal, D. Ws. claimed to be attesting witnesses. They stated that they signed the rent deed as attesting witnesses. Khauroo Mal stated that the rent deed had been executed for a period of one year and had been drawn up on stamp paper of Rs.2.25. This statement is directly in conflict with the evidence of Bihari Lal proving the entry from his register, Exhibit P-4. According to that entry, stamp paper, on which rent deed had been drawn, was of the value of Rs.6/- and the term of tenancy was for six months and not for one year. When Khauroo Mal was asked as to how he happened to be in the premises of the Civil Courts, where the deed had been executed by Raj Kumar in favour of the plaintiff and where the petition writer was present, he stated that he visited the premises of the Civil Courts to obtain a certified copy of a decree. He, however, could not give the particulars of the suit, in which copy of the decree was sought to be obtained. Jaidev Singh also reiterated against the contents of that entry that the period of tenancy was one year and not six months. When Jaidev Singh was asked as to what was the value of the stamp paper, he said that he could not say anything about that value. When this witness was asked as to whether he had just before the date he gave the evidence appeared in the Civil Court at Jagraon as a witness in support of a case of Raj Kumar defendant, he gave a reply of non-committal nature by saying that he did not remember, if he had appeared. When he was further cross-examined as to whether he had prior to the date his statement was recorded, visited Jagraon, he replied that he did not know. This shows the extent, to which he is evasive and undependable. The witness, admitted that he had business dealings with Raj Kumar defendant. Both these witnesses, who claim to have attested the rent deed have made contradictory statements and do not appear to have attested any such document as is alleged to have been executed by Raj Kumar defendant in favour of the plaintiff.
20. Raj Kumar defendant as D. W. 6, Nihal Singh P. W. 6 and Rabinder Singh, P. W. 7 have proved that business of cycle dealers had been carried on by the firm of Messrs. Nihal Singh Khushal Singh in the premises in dispute, that the business was started in 1949 and rent deed was executed by Messrs Nihal Singh Khushal Singh on September 5, 1949 in favour of Smt. Ajmer Kaur. In 1950, as stated by these witnesses, there was executed another rent deed marked 'C' by that firm in favour of Smt. Ajmer Kaur, the rent was paid to her and she used to issue printed receipts in token of her having received the rent, Nihal Singh retired as a partner in 1951 and in his place, two other partners, namely Raj Kumar and Kulwant Rai defendants joined the firm as partners with Khushal Singh and continued business under the firm name of Messrs. Khushal Singh and Company. They say that on June 17, 1955, Khushal Singh retired, that rent was paid on behalf of the said firm to Smt. Ajmer Kaur and that printed receipts in token of receipt of the rent were issued by her. Rabinder Singh P. W. is son of Khushal Singh, previous partner of the firm and could know about the affairs of the firm.
21. Raj Kumar defendant stated that on September 8, 1953, rent deed had been executed by him in favour of the plaintiff and that the plaintiff accompanied by her attorney, R. S. Phulka visited his shop and that he along with him proceeded to the Courts and the rent deed was drawn up there on stamp paper by Bihari Lal petition writer. When Raj Kumar was asked as to whether he had any receipt issued by the plaintiff about the payment of rent to the plaintiff from September 8, 1953 onward, he replied that he had none. He, however, stated that he had been maintaining accounts showing to the payments of rent from the date of the rent deed onward but the accounts maintained by him had been misplaced and could not be traced. Had that been a fact, accounts would have been forthcoming without any hitch or hesitation. Being a business firm liable to pay income tax and sales tax, account books must have been maintained and entries pertaining to payments of rent to the plaintiff for 8 years from 1953 onward, if any, made should find place in those books. To overcome the difficulty of adverse inference drawable by Court because of the withholding of those accounts, baseless suggestion of loss of account books has been contrived. It is hard to swallow that the partners of the firm would from 1953 up to date not persist for issue of receipts by the plaintiff against payments of rent made to her on behalf of the firm when those receipts could establish the title of tenancy to the premises in dispute. In her statement the plaintiff assertively repudiated this stand of the defendants by emphatically denying that any rent deed on September 8, 1953 or any other date had been executed by Raj Kumar defendant or the firm in her favour or that she had ever received any rent from defendants in respect of the premises in dispute.
22. Rabinder Singh P. W. has clearly stated that up to the year 1955, when Khushal Singh retired, rent had been regularly paid by the firm to Smt. Ajmer Kaur. Raj Kumar has also admitted that rent was paid right up to June 17, 1955 to Smt. Ajmer Kaur when Khushal Singh retired. As proved by Rabinder Singh P. W. and as admitted by Raj Kumar, rent had been paid from the date of execution of rent deed on September 8, 1953 to June 17, 1955 to Smt. Ajmer Kaur. If rent deed in favour of the plaintiff had come into existence on the date alleged, rent after that date had become payable to the plaintiff and not to Smt. Ajmer Kaur. The myth of execution of rent deed by Raj Kumar in favour of the plaintiff on September 8, 1953 has been exploded. It has been proved by Rabinder Singh that there was executed on August 1, 1955 rent deed marked 'C' by the firm of Messrs. Khushal Singh and Company in favour of Smt. Ajmer Kaur. If rent deed marked 'C' had been so executed on August 1, 1955, the hollowness of the plea taken on behalf of the defendants that rent deed had been executed in favour of the plaintiff on September 8, 1953, stands fully exposed. Smt. Ajmer Kaur died in the year 1961. The rent was being paid to her up to the date of her death. Even the last receipt pertaining to the payment of rent issued in the month of April, 1961 was executed by her in favour of the defendants in token of receipt of rent. Thus, the evidence devising the existence of a rent deed by Raj Kumar defendant in favour of the plaintiff in 1953, cooked as it is, has no legs to stand.
23. We afforded two opportunities to the defendants to enable them to obtain the particulars of the case and the Court, in which the register is said to have produced by Bihari Lal. It was stated by Bihari Lal that that register had been produced by him in 1962 in Ambar Hosiery Ludhiana v. Prakash Ghai in the Court of Shri Om Parkash, Senior Sub-Judge, Ludhiana. That register, however, could not be found to be existing on the file of that case. It appears that the entry made in that register was fictitious and consequently Bihari Lal did not want that that register should be subjected to scrutiny by us. It is on account of that reason that the register has been withheld from being produced in Court. His statement recorded by us does not yield any gain to the defendants in support of their plea of rent deed having been executed by Raj Kumar in 1953 in favour of the plaintiff.
24. We also examined R. S. Phulka. He stated that he had never given the property in dispute on rent to Raj Kumar defendant and that Raj Kumar never executed any rent deed on September 8, 1953 in favour of the plaintiff. He asserted that from 1952 to 1955, he was doing his own business at Jullundur and was not working as attorney with the plaintiff on the date on which the rent deed is stated to have been executed.
25. On the basis of the evidence led in the case, we are satisfied that the Trial Court has taken correct view in coming to the conclusion that no rent deed had been executed on behalf of the defendants in favour of the plaintiff on September 8, 1953 and hence the defendants could not be held to be the tenants of the plaintiffs. The evidence as scrutinized above fully warrants that finding and the same is upheld.
26. In the result, the appeal is disallowed with no order as to costs.
27. Appeal disallowed.