1. In order to understand the controversy, which has led to the present litigation, it is necessary to reproduce the following pedigree-table:
(See pedigree table on next page) The property in question had been given as a grant to Mata Din by His Highness the Maharaja of the erstwhile State of Patiala. Mata Din is stated to have made a will of his entire property giving one-third each to his two brothers Chet Ram and Badeshi Ram and the remaining one-third to his widow Smt. Anantia. The mutation of succession was sanctioned jointly in the names of these three legatees. On Badeshi Ram's death, Ram Sewak, his son, inherited one-third estate and became joint owner with Chet Ram and Smt. Anantia. On Chet Ram's death, Sahib Ram plaintiff succeeded his father. Smt. Anantia made a will on 5-3-1945 of her entire property in favour of Ram Sewak. Smt. Anantia died in 1949 and her estate was mutated to the extent of two-third share in favour of Ram Sewak and one-third in favour of Sahib Ram Plaintiff.
| | |
Anantia Sardar Smt. Tulsan = Badeshi Chet Ram
(Widow) Mata Din Defendant No. 2 Ram |
(died issueless) | Sahib Ram (Plaintiff)
Mst. Natho = Ram Sewak Mst Shanti
(adopted by Mst Natho
widow of Ram Sewak)
Sewak died on 12-12-1952. Mutation of his succession was sanctioned on 19-2-1953. Smt. Natho on 30-3-1954 executed a registered adoption-deed adopting Hari Kishan in pursuance of her husband's directions given during his lifetime. On 1-5-1954, Smt. Natho died and mutation of her succession was effected in favour of Hari Kishan.
Ram Sewak thereafter applied for partition of the property which was opposed by Sahib Ram. The Revenue Officer, however, decided the question of title in those partition proceedings. It is in these circumstances that the suit out of which the present appeal has arisen was instituted by Sahib Ram on 6-6-1955 claiming the following multifarious reliefs:
1. Possession by partition of one-half share in the property in suit.
2. Declaration to the effect that the adoption-deed dated 30-3-1954 executed by Smt. Natho is a mere paper transaction and in fact no adoption ever took place and indeed Smt. Natho had no authority to do so, with the result that Hari Kishan, defendant No 1 has no right to get the estate of Ram Sewak It is also asserted in this connection that smt. Natho had only a life interest in the estate and that after the death of Smt. Tulsaa the adoption-deed would be ineffectual against the plaintiff's reversionary rights in respect of Ram Sewak's estate Hari Kishan is thus disentitled to gel the partition effected regarding the property in question.
3. Partition proceedings going on in the Court of the Revenue Assistant Patiala, in favour of Hari Kishan are accordingly void and ineffectual against the plaintiff's rights and that the plaintiff is the owner of one-half share in the property in question which he is entitled to get partitioned.
4. Declaration that the mortgage effected by Ram Sewak in favour of Madan Lal has no effect on the plaintiff's share and the charge of additional mortgage for Rs. 1,000 created on 9-5-1953 by Smt. Natho is without consideration, legal necessity and being against law is ineffectual against the plaintiffs right.
2. This suit was resisted by the defendants, the pleadings of the parties giving rise to the following issues on the merits:
1. Whether this suit is incompetent;
(a) without obtaining cancellation of the will dated 4-3-1945 executed by Mst. Anantia in favour of Ram Sewak: (4th appears to be a mistake for 5th);
(b) without obtaining cancellation of the deed of adoption dated 30-3-1954 by Mst. Natho in favour of Hari Kishan defendant No. 1?
2. If issue No. 1 is found in the negative, whether this suit is barred by limitation?
3. Whether Chet Ram is a reversioner of Mst. Anantia and Mst. Tulsan?
4. Whether the will dated 4-2-1945 executed by Mst. Anantia in favour of Hari Kishan defendant No 1 is valid?
(the correct date of the will appears to be 5-3-1945 and it is in favour of Ram Sewak).
5. Whether the deed of adoption dated 30-3-1951 by Mst. Natho in favour of Hari Kishan defendant No. 1 is valid?
6. If issue No. 5 is found in the negative, whether defendant No 1 is entitled lo succeed to the properly in dispute?
7. If issue No 5 is found in the affirmative whether defendant No 1 is not entitled to the property in dispute?
8 Whether the plaintiff is estopped from enforcing the suit claim?
9. Whether the claim of the plaintiff for a declaration regarding entries in the revenue record is within limitation?
10. Whether the mortgage for Rs. 1,000 dated 5-9-1953 by Mst. Natho in favour of defendant No. 3 was effected for legal necessity (5-9-1953 appears lo be a mistake for 9-5-1953)
11. Whether the plaint-scheduted pro-perty. Mandi and Godown are joint property of the parties?
12. What effect if any, has the Hindu Succession Act on the fate of this case? Issue No 12 and another issue on court-fee were framed later pursuant to the plaintiff's application dated 24-1-1957
3. The trial Court held the suit to be competent without obtaining cancellation of the will and the deed of adoption Chet Ram was held a reversioner of the two ladies under issue No 3. The will by Smt. Anantia and the deed of adoption by Smt. Natho were both held invalid Hari Kishan. defendant No. 1 was held disentitled to succeed and the plea of estoppel against the plaintiff was negatived. The plaintiff's suit for a declaration regarding entries in the revenue records was held within limitation, Mst. Natho's mortgage dated 9-5-1953 was held to be valid only to the extent of Rs. 300. Under issue No 11, the property mentioned therein was, held to be joint property of the parties and under issue No. 12, the Hindu Succession Act was held lo have no effect on the present controversy. In the final result, the plaintiff's suit was decreed with costs and a preliminary decree was passed with regard to the relief of partition, the plaintiff being entitled to take possession of half the property in dispute including the agricultural land of which he was held entitled to seek partition in due course from the revenue authorities.
4. On appeal in this Court by Smt. Tulsan, Hari Kishan and Madan Lal, Shri D.C. Gupta, their learned counsel, has to begin with addressed arguments on issue No. 4. The learned Additional District Judge. Patiala, Shri Brijindra Singh Sodhi, decided issue No. 4 in favour of the plaintiff principally on the ground that Smt.. Anantia, executant of the will dated 5-3-1945, had only a life interest in the one-third share which she got from Mata Din, her husband. The line of approach of the learned Additional District Judge is somewhat as follows. The will by moans of which Mata Din bequeathed his estate to his brothers Badeshi Ram and Chet Ram and his widow Smt. Anantia has not been produced and that in the will executed by Suit. Anantia in favour of Ram Sewak on 5-3-1945 (Exhibit D. W. 2/A) she does not describe herself as an absolute owner (Malik Kamil) of the property held by her with the result that according to the legal presumption under the Hindu law, she must be held to have only a life interest in the estate. In support of this view, reliance was placed on a Calcutta decision in Abinash Chandra v. Shree Sree Iswar Dharamraj. AIR 1953 Cal 194, a Madras decision in Chalapati Rao v. Subba Rao, AIR 1929 Mad 691 and a decision of the Judicial Committee in Lalta Baksh Singh Phool Chand, AIR 1945 PC 113. It is common case of the parties before us that there is no evidence on the record one way or the other showing what were the exact terms of the will by means of which Smt. Anantia got one-third of her husband's estate.
5. The appellants' learned counsel has challenged the conclusion of the Court below on issue No. 4 and has submitted that there is no such legal presumption as has been assumed in the judgment appealed against. He has also drawn our attention to Exhibit D. W. 14/A, an extract from the register of mutations which is a copy of mutation No. 931 sanctioned on the death of Mata Din. In this mutation, the report of the Patwari Halqa is as follows:
''Sardar Mata Din died sonless on Asuaj 27 Sambat, 1979 corresponding to 12-10-1922. His legal heir was his widow Smt. Anantia. But he in his lifetime apportioned his self-acquired property amongst the following three persons as per his khangi wasial dated Assauj 23 Sambat, 1979. corresponding to 8-10-1922.
Smt. Anantia. his widow, l/3rd Chet Ram and Badeshi Ram sons of Pekuh Ram who were his real brothers in equal shares -2/3.
Besides this, these three co-sharers were held responsible for the maintenance of Smt. Salesh, widow of Kalu Ram Smt. Anantia also admits this thing. Hence this mutation of succession after having been entered into the register as staled above is submitted for necessary orders.'
This report is dated 18-10-1922. The Tehsildar on 14-11-1922 passed the following order:
'In the public gathering Smt. Anantia, widow of Sardar Mata Din as identified by Jewan Singh and Bir Singh Lambardars has testified to the factum. The will in writing has not been produced. The parties have no objection. Hence the mutation of succession to Sardar Mata Din by Smt. Anantia his widow, 1/3 and Chet Ram and Badeshi Ram his brothers 2/8 in equal shares, is hereby sanctioned.'
Below this order we have a pedigree table showing Pekhu Ram father with three sons, Mata Din, Chet Ram and Badeshi Ram and Mst. Anantia as Mata Din's widow. It is also noted that entry had been made in the Jamabandi for the year Sambat, 1982-83. Shri Gupta has drawn our attention to a decision of the Supreme Court in Nathoo Lal v. Durga Prasad, AIR 1954 SC 355. in support of his challenge to the conclusion of the Court below on issue No. 4. Mahajan. C. J. speaking for the Supreme Court in the reported case made the following instructive observations:
'We are further of the opinion that the High Court was in error in thinking that it is a settled principle of law that unless there are express terms in the deed of gift to indicate that the donor who had absolute interest intended to convey absolute ownership, a gift in favour of an heir who inherits only a limited interest cannot be construed as conferring an absolute interest. It is true that this was the principle once deduced from the Privy Council decision in Mahomed Shumsool v. Shewukram, (1875) 2 Ind App 7 (PC) wherein it was held that a bequest to a daughter-in-law passed a limited estate
The proposition laid down in Mahomed Shamsool's ease, 2 Ind App 7 (PC) was construed by the High Courts in India to mean that a gift of immovable property to a woman could not be deemed to confer upon her an absolute estate of inheritance which she could alienate at her pleasure unless the deed or will gave her in express terms a heritable estate or power of alienation. Later decisions of the Judicial Committee made it clear that if words were used conferring absolute ownership upon the wife, the wife enjoyed the rights of ownership without their being conferred by express and additional terms.
Shumsool's case, 2 Ind App 7 (PC) has been examined in recent years in some High Courts and it has been observed that according to the law as understood at present there is no presumption one way or the other and there is no difference between the case of a male and the case of a female and the fact that the donee is a woman does not make the gift any the less absolute where the words would be sufficient to convey an absolute estate of a male.'
The learned Chief Justice then approvingly reproduced a passage from an earlier decision of the Supreme Court in Ram Gopal v. Nand Lal. AIR 1951 SC 139, which reads as follows:
''It may be taken to be quite settled that there is no warrant for the proposition of law 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. The reasoning adopted by Mitter. J. of the Calcutta High Court in Mst. Kollani Koer v. Luchmee Parsad, 24 Suth WK 196 (Cal), which was approved and accepted by the Judicial Committee in a number of decisions seems to me to be unassailable.'
After referring to a Privy Council decision in Jotendromohun Tagore v. Ganendra mohun Tagore, 9 Beng LR 377 (PC), the learned Chief Justice observed that this is the general principle of law recognised and embodied in Section 8 of the Transfer of Properly Act that an estate given to a man without express words of inheritance, in the absence of a conflicting context, carries an estate of inheritance and unless it is shown that under Hindu law a gift to a female means a limited gift or carrying with the restrictions or disabilities similar to those that exist in a widow's estate, there is no justification for departing from the said principle. The counsel has drawn our attention to the Privy Council decision in Thakur Lalta Bakhsh Singh's case, AIM 1945 PC 113 and to Abinash Chandra's case. AIR 1953 Cal 194 on which the Court below has placed reliance and submitted that in these two cases, the Courts were concerned with the language used in particular wills and the decisions proceeded on the language of those two documents which cannot by any means provide a binding precedent for the case in hand. Reliance on behalf of the appellant has also been placed on a decision of the Andhra Pradesh High Court in Vaddi Seshayya v. Goka Padalamma. VIR 1957 Andh Pra 534 which followed the Supreme Court decision in Nathoo Lal's case.
6. On behalf of the respondent, however main reliance has been placed on the Privy Council decision in Shumsool's case. (1875) 2 Ind App 7 (PC) and it has been emphasised that prior to the recent social trend in favour of women, a Hindu female was always presumed to take a life interest in her husband's estate in addition to the two decisions on which the Court below has placed reliance. Shri Nehra has relied upon Bishunath Prasad Singh v. Chandika Prasad Kumari. AIR 1933 PC 67 in which the words 'Malik Mastakil' meaning thereby absolute owner were used for conferring on the daughter-in law legatee an absolute estate and the counsel submits that only life estate was intended to be conferred on Smt. Anantia.
7. In my opinion, the judgment of the Court below is clearly erroneous and proceeds on a misunderstanding of the real legal position. As observed by the Supreme Court in Nathoo Lal's case. AIR 1954 SC 355 there is no scope for a presumption of life estate being conferred on a female Hindu merely because she is a female. It is instructive here to reproduce one passage from the judgment of Mahajan. C J :
'Dr. Bakshi Tek Chand next contended that Laxmi acquired an absolute title in the suit property under the will of her father and that the High Court was in error in holding that unless there were express words indicating that the donor who had absolute interest in the gifted property intended to convey an absolute interest to her, the gift in favour of an heir who would ordinarily inherit a limited interest could not be construed as conferring an absolute interest. The learned counsel for the respondent on the other hand raised two contentions.
He urged in the first instance that it seems that the intention of Ramchandra was to make a gift of the suit property in favour of Laxmi but he was unable to perfect the gift by executing a registered deed, being on his death bed and in that situation the property devolved on his widow by inheritance and it only camp to 'Laxmi under the widow's gift and under it she could not get a larger interest than what the widow herself possessed, namely a limited life estate, which terminated on her death. In the alternative, it was said that there was no evidence us to the terms of the oral will and that being so, the gift being in favour of a female heir, the presumption, in the abscise of evidence to the contrary, was that the donee got only a limited life interest in the bequeathed property. In our judgment, there is force in the contention of Dr. Tek Chand and none of the contentions raised by the respondent's counsel have any validity'
This decision is clearly an authority for the invalidity of the respondent's contention before us. The Privy Council decision in Mahomed Shumsool's case. (1875) 2 Ind App 7 (PC) was considered by the Judicial Committee in Sasiman Chowdhurain v. Shib Narain Chowdhury AIR 1922 PC 03, and it was emphasised that it was on account of various considerations peculiar to the earlier case that the decision was given against absolute estate of inheritance being conferred on the woman. The danger of construing the words of one will by the construction of more or less similar words in different wills was also emphasised in Sasiman's case. AIR 1922 PC 63.
8. The stress which Shri Nehra has laid on the non-production of the will, in my opinion recoils on his client with no less seriousness. As the mutation entry D W 14/A shows all the three persons claimed under Mata Din's will and if that will is to be construed, it is difficult to understand how Sahib Ram, who was the plaintiff in the Court below, can be absolved of the burden of producing the will under which his predecessor-in-interest claimed the property in qucestion and blame the appellant for her non-production on the risk of raising an adverse inference against her But this apart, the mutation entry which has been reproduced above, clearly suggests that the testator treated all the three beneficiaries in the same manner and there is no suggestion available from which Smt Anantia should be presumed to have been given a life estate. The fact that Smt. Saleah, widow of Kalu Ram a pre-deceased brother of Mata Din, was to be given Maintenance and Smt Anantia was held equally liable with Chet Ram and Badeshi Ram to maintain Kalu Ram's widow would also to an extent go to suggest that Smt. Anantia had been given as absolute an estate as the other two legatees. And then the entries in the revenue papers also do not seem to show any distinction between the three heirs, with the result that there seems to be no cogent or reasonable ground for drawing a distinction between an estate bequeathed to the two males and Smt. Anantia.
9. The result, therefore, is that the decision of the Court below on issue No. 4 must be reversed and Smt. Anantia held to have got an absolute estate from Mata Din. In view of this decision, it is unnecessary to decide issue No. 5 dealing with the adoption of Hari Kishan because admittedly Smt. Tulsan is alive and in her presence, the present plaintiff cannot possibly have any locus standi to challenge Hari Krishan's adoption. The decision of the Court below on this issue should, therefore, be considered to be wholly unnecessary and we quash it, without expressing any opinion on this point. If and when the question of Hari Kishan's adoption is raised in appropriate proceedings, the Court would come to its own decision on the evidence led in that case uninfluenced by the present litigation or opinion of the Court below It is equally unnecessary to decide issues Nos 6 and 7 in the present controversy.
10. In the final result, therefore, this appeal succeeds and allowing the same, we modify the judgment and decree of the Court below to the extent that we grant Sahib Ram Plaintiff a decree for possession by partition of one third share in the property in question. The appellants are entitled to their costs both here and in the Court below.