1. This regular second appeal is by the unsuccessful plaintiffs. Both the Courts below have dismissed their suit for declaration to claim that the land in dispute transferred by Shrimati Patto, defendant -respondent No. 1(since death and her name struck off from the array of respondents) in favour of the contesting defendant-respondent was without legal necessity, illegal and ineffective against the reversionary rights of the plaintiff-appellants. That claim is reiterated in the present appeal. Facts giving rise thereto are mentioned hereafter.
2. A parcel of land in village Tigrana Tahsil Bhiwani, District Hissar, was owned by one Gopala. On his death sometimes after 1905 but before 1914, his estate was mutated in favour of his widow Shrimati Bujhi. Gopala was a Bhardwaj Brahmin a high caste Hindu. On 14-4-1911, the Patwari of the village recorded a mutation suggesting transference of the estate of Shrimati Bujhi in favour of her widowed daughter Shrimati Patto. It came to be recorded on her statement to the effect that she had only one daughter Shrimati Patto and who was a widow. It was, further stated that from her in-law's side, there was no one to look after her. She expressed the wish that her share out of the joint land be mutated in the name of Shrimati Patto so that she could maintain herself comfortably. It was also stated therein that after the death of Shrimati Patto, the reversioners would be entitled to the estate and that the former will not be entitled to sell or mortgage the land and would only be entitled to maintain herself out of it during her lifetime. This statement was supported by Pat Ram, Mam Raj, Mohan Lal, besides Shrimati Pauji out of the collateral's of Gopala. There upon, the Revenue officer concerned sanctioned the mutation on 16-4-1911. After verifying the facts stated by the widow with particular emphasis on the fact that Shrimati Patto was destitute. At the time of the mutation two, other reversioners namely Sis Ram and Shrimati Dharkan besides Mam Raj and Mohan Lal also supported the mutation. They readily agreed to the mutation but required it subjected to the clog that Patto would hold the estate for her lifetime and maintain herself but would not be entitled to sell or mortgage the land. This mutation is Exhibit P. 2 on the file and was the basis of the claim of the plaintiffs, since Shrimati Patto, after the passing of the Hindu succession Act, 1956 sold the land to the contesting respondents for a sum of Rs. 5,600/- vide registered deed, copy of which is Exhibit P. 3 on the file. The land at that time measured 35 kanals 4 marlas fully described in the plaint as post-consolidation fields. Since there was an apparent violation of the terms of mutation. Exhibit P. 2 the plaintiff-appellants filed the instant suit for declaration,out of which this appeal has arisen, to safeguard their reversionary rights operative after the death of Shrimati Patto. The suit was contested by the vendees. They pleaded that Shrimati Patto had become the absolute owner by virtue of the provisions of Section 14 of the Hindu Succession Act, 1956 and thus the reversioners had no interest in the land. On the pleading of the parties, the following issues were framed:--
1. Whether Shrimati Patto was a limited owner and her right had been curtailed as alleged? If so, to what effect?
2. Have the plaintiffs locus standi to sue?
3. Whether the suit land is ancestral qua the plaintiff?
4. If issue No. 1 is proved, whether Shrimati Patto was absolute owner ?
3. Under issue No. 3, the trial Court found that the land was ancestral qua the plaintiffs. The learned Judge chose to rely upon some admissions suggestedly coming forth from the witness. Under issue No. 2, it was held that the plaintiffs had no locus standi to file the suit. Under issues Nos. 1 and 4, it was held that Shrimati Patto had become an absolute owner of the property in dispute and thus the plaintiffs were held disentitled to challenge the alienation. As a result, their suit was dismissed. On appeal to the Additional District Judge, Hissar, the Plaintiff-appellants lost further ground inasmuch as the lower appellate Court reversed the finding on issue No. 3 by holding that the suit land was not ancestral qua the plaintiff and it explained away the suggested admission of the character of land coming forth in the evidence of the defendants. Findings on other issues were maintained. Resultantly, the appeal too was dismissed. This has given rise to the present second appeal.
4. It was contended on behalf of the learned counsel for the appellants that Shrimati Patto had received the estate of Gopala through her mother Shrimati Patto under an instrument and that fell within the exception embodied in sub-clause (2) to the general principle embodied in sub-clause (1) of Section 14 of the Hindu Succession Act, Section 14 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 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 the civil court of 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.'
5. In support of the contention that the mutation was an instrument, a Division bench of the Delhi High Court reported as Jamna Devi v. Prem Chand, ILR (1970) 1 Delhi 721 was cited to contend that somewhat akin mutation was held to fall squarely within Section 14(2) of the Hindu Succession Act. In that case it was observed by the Bench as follows.:-
'Held, that mutation order in question, which incorporated the compromise between the parties, is an instrument as contemplated by sub-section (2) of Section 14 of the Hindu Succession Act. Held accordingly that where a Hindu widow acquired land in dispute as a result of compromise in the course of mutation proceedings and the said compromise had been incorporated in the mutation order, the said mutation order was an instrument for the purpose of sub-section (2) of Section 14 of the Hindu succession Act'.
6. Conscious of the impediment created by the lower appellate court that the property in dispute was not proved to be ancestral qua the plaintiffs, the above analysis of law despite being put forward could be of no avail. Effort was made to trace the land as ancestral, but before this could engage attention, a cross reasoning has to be noted side by side.
7. Now it stands settled that while determining whether a particular case is governed by sub-section (1) or sub section (2) of Section 14, the section has to be read as a whole and it would depend on the facts of each case whether the same is covered by sub-section (1) or sub-section (2). The word 'possesed' in sub-section (1) has been used in its widest connotation and it may be either actual or constructive or in any form recognised by law. In the context in which it has been used in Section 14, it means the state of owning or having in one's hand or power. Sub-section (2) has been held as more in the nature of an exception of proviso to sub-section (1). It comes into operation only if acquisition in any of the methods indicated therein is made for the first time without there bring any pre-existing right in the female Hindu who is in possession of the property. Their Lordship of the Supreme court in Badri Pershad v. Smt. Kanso Devi, AIR 1970 SC 1963, settled the aforesaid proposition. This Court in a Division Bench judgment reported as Nand Singh v. Nachhattar Singh, ILR (1976) 1 Punj and Har 384: (AIR 1975 Punj and Har 45) applied the principle and so did a Full bench o this Court in Jaswant Kaur v. Major Harpal Singh (1977) 79 Pun LR 523: (AIR 1977 Punj and Har 221). An instrument in writing which comes in to being so as to create a restricted estate for the first time would attract subsection (2) of Section 14 whereas an instrument which recognises, enhances or curtails any pre-existing right of a Hindu female would be covered by sub-section (1) of the Section 14. Such restricted estate which fails under sub-section (1) of Section 14 qualifies on the commencement of the Act to mature into absolute ownership of property for the female Hindu.
8. It would thus become necessary to determine as to where the mutation dated 16-4-1911 in favourof Shrimati Patto was in recognition of her pre-existing rights, or rights in property were created only by virtue of the said mutation. It is undisputed that the estate of Gopala was mutated in favour of Shrimati Bujhi, and Shrimati Patto was the sole progeny of Gopala. The recitals in the mutation which were recorded mere than half of century ago convey that Smt. Patto was the widowed daughter of Gopala, was unable to claim maintenance from anyone from her in-law's side and was indigent or destitute. She legitimately could thus look forward for support and maintenance in her father's house. Though it is true that a Hindu father is not bound to maintain his married widowed daughter under the law, yet he is under a moral obligation to maintain her if she is unable to obtain maintenance from the family of her husband. It stands settled by the Privy Council in Rajni Kanta Pal v. Sajani Sundaree Dasee (1933) 66 Mad LJ 148: (AIR 1934 PC 29) and practically by all the high Courts of India that a moral obligation becomes a legal obligation when the estate of a person on whom the moral obligation lay comes into possession of his heirs. There has been a conflict of opinion as to whether the aforesaid principle of a moral obligation becoming a legal obligation should extend to the case f a widowed daughter. A Full Bench of the Madras High Court in Ambu Bai Ammal v. Soni Bai Ammal, (1940) 2 Mad LJ 298: (AIR 1940 Mad 804) and Mokhada Dassee v. Nundo Lall Haldar, (1901) ILR 28 Cal 278 have taken the view that the right flows to a destitute widowed daughter.These authorities have distinguished a case from the Bombay High Court in Bai Mangal v. Bai Rukhmini, (1989) ILR 28 Bom 291, as there the widowed daughter apperently had means for maintainence in her husband's family. The majority of the High Courts seems to take the view that widowed daughter has such a right. A Division Bench of the Lahore High Court in Mst. Bholi Bai v. Dwarka Das, (1924) ILR 5 Lah 375 : (AIR Lah 32) observed as follows:--
'Held, that under Hindu Law an heir is legally bound to provide out of the estate which descends to him maintenance for those persons whom the late proprietor was legally or morally bound to maintain. The reason is that the estate is inherited subject to the obligation to provide for such maintenance.'
9. The aforesaid statement of law was borrowed by their Lordship from Hindu Law by Mulla, Fourth Edition Paragraph 451, and which was quoted with approval. In that case, the expenses of the marriage of a daughter were considered as valid charge on the estate of her father in the hands of his heirs. Added to the aforesaid reasoning is the concept that a daughter's relationship is not altogether severed when she is given in marriage in another family. The natural bond remain existing between the father and daughter as the famous saying goes 'the son is a son until he gets a wife and the daughter is a daughter throughout her life.'. The father remains under a moral obligation to maintain his destitute married daughter if she cannot fend for herself in her father-in-law's family for after all if the father has a legal duty to maintain her unmarried daughter (provisions of he recent Hindu Adoptions and Maintenance Act, 1956 apart) a widowed daughter can at least look towards maintenance under his moral obligation for the purpose, for she walked out of her father's family at his behest by giving away in marriage.
10. Applying the aforesaid principles as deduced, to the facts of the present case, it would appearthat Shrimati Patto, the indigent widowed daughter, was under a moral obligation of being maintained by Gopala if alive, and after his death such obligation matured into a legal obligation for Shrimati Bujhi to have maintained Shrimati Patto. If in recognition of that pre-existing right, Shrimati Bujhi had transferred her life estate which she had received from Gopala to discharge a legal obligation, it would be in recognition of a pre-existing right so as to enable such limited estate in the hands of Shrimati Patto to mature into absolute ownership under Section 14(1) of the Hindu Succession Act.
11. Before the Court below, the pleadings were uncertain as to whether the parties were governed by custom and what that custom was, concededly the parties, as said before, are Bhardwaj Brahmins, High caste Hindus. Under Section 5 of the Punjab Laws Act, custom is the first rule with regard to succession and alienation etc., if so pleaded and proved, otherwise principles of Hindu Law govern the Hindus.The trial Court took the view that Shrimati Bujhi estate on her death had in any case to come to Shrimati Patto and the gift/transfer was in the nature of acceleration of succession. This presumably was the view of the trial Court, under however agreed that the parties had not been proved to be governed by custom and that the principles of Hindu Law would be applicable. Since it had held the property to be non-ancestral, it had non-suited the plaintiffs on that ground as well. It was attempted to be argued that the parties were governed by custom and they had wrongly been held to be governed by Hindu Law. From the pleadings of the parties no such categoric averment is forthcoming and the inferences, if any, are too meagre to be taken as the basis of the suit. In any case, no issue was claimed on the subject and the parties straightway came into grips with the subject as to whether the property was ancestral. It is too late in the day to let the plaintiffs plead and prove that the parties were governed by custom. The mere fact that the property involved is agricultural land will not make the parties govern themselves, by custom in preference to Hindu Law.
12. It would be fair to the learned counsel for the appellant to note down his arguments regarding the ancestral nature of the property. It is stated in paragraphs 1 and 11-A of the plaint when read in the light of the title thereof that land measuring 35 kanals 4 marlas once belonged to Gopala which came to Shrimati Bujhi after his death and that the suit land had been allotted during consolidation in lieu of old Khasra Numbers mentioned therein. The written statement of the contesting respondents, though of denial, further said that the suit land belonged to Bhuji and thereafter had come to Shrimati Patto. Added to this is the evidence or Gopi (D.W.1) and Kundan (D.W. 3) to the effect that the property in dispute was ancestral. From this it is sought to be urged that the property was ancestral and should be held as such. In the first place, whether the property is or is not ancestral is essentially a question of fat and incapable of being interfered with in second appeal. Even on examination, the property entirely cannot be said to be ancestral. In the excerpt produced, a joint parcel of land in 1885-86 was shown to be in possession of five brothers sons of Jee Sukh. From this a presumption was sought to be raised by citing Jiwan Singh v. Mst. Har Kaur, 41 Pun Re 1914 : (AIR 1914 Lah 279), Mt. Maryan Bibi v. Ghulam Muhamad, AIR 1924 Lah 175, and Sobha Singh v. Mst. Gurbarhshi, 1960-62 Punj LR 440 read with the pedigree table. Exhibit P. 1 in which Jee Sukh finds mention, to contend that the equality of share mentioned therein raise a presumption that the property had come to the five brother in equal shares from Jee Sukh, that may be so, but the position is altered in 1890-91 Puran, one son of Jee Sukh, appears to have at that time one share where as three others sons inclusive of Gopala have the remaining six shares where as three other sons inclusive of Gopala have the remaining is shares where as the fifth one. Namely Sis Ram, stands completely eliminated. It is left to guess as to how the change took place. In the next jamabandi of 1894-95 the same position continues. In 1898-99 and 1902-03 the holding gets recorded in three equal shares to the exclusion o another line represented of one brother. The plaintiffs concededly are progeny of the four originally mentioned brothers. Thence forth the property continues in three equal shares; one share ultimately finding its way in the ownership of Shrimati Patto. Thus the ancestral share was one-fifth to begin with but came to be owned as one-third in the absence of any proof of mutation by inheritance. Obviously the increase upon share has to be treated as non-ancestral in favour of Gopala, the original person who received the accretion and thus that can hardly he called ancestral. Since there was intermingling of ancestral and non-ancestral land and it is so inextricably mixed up that the three Khasra numbers representative of Gopala's share being 1993, 1934 and 1992 out of a larger holding have not been shown by any document to be connected with the land in dispute after consolidation of holding. The connection, if any was sought to be established by the afore referred to pleadings and the statements but since the lower appellate court has chosen not to attach any value to them bereft of proper connection by revenue record, it would not be possible to interfere with the finding as to the nature of the land in second appeal. Even otherwise, the entire suit land cannot be said to be ancestral for the aforesaid reasons and on account of its intermixing incapable of being segregated. The land was thus rightly held non-ancestral.
13. No other point arises and none has been urged. For the foregoing reasons, this appeal fails and is hereby dismissed with no order as to costs.
14. Second appeal dismissed.