Hardayal Hardy, J.
(1) In this second appeal from a decree passed by the learned Senior Subordinate Judge Kangra. at Dharamsala, learned counsel for the apellant has raised several contentions but the real controversy centres round the question as to whether the law that should govern the decision of the case is contained in sub-section (1) or sub-section (2) of section 14 of the Hindu Succession Act 30 of 1956 which came into force on 17th June, 1956. If sub-section (1) applies then the appellant succeeds and respondent No- I who was plaintiff in the the trial Court fails. On the toher hand if sub-section (2) applies then the appeal fails and the plaintiff-respondent No. 1 is entitled to a decree being passed in his favor.
(2) There is no dispute as to facts. One Nihala grand-father of Mangtu was the last male holder of certain land situate in a village in Tehsil Nurpur, District Kangra. His widow Smt. Orku gto it by inheritance. Her marriage with Nihala was a second marriage, her first marriage being with one Dhanu from whom she had a daughter named Smt. Naro. By mutation No. 128 sanctioned on 27th May, 1944 (Exhibit P. 5) Smt. Orku made a gift of the land in favor of her daughter Smt. Naro. At the time of mutation, the donor Smt. Orku, the donee Smt. Naro and Mangtu the present plaintiff appeared before the sanctioning authority. English translation of the order sanctioning mutation may be reprodued here as it is the language and effect of this order which is mainly responsible for the controversy arising in this litigation.
'IN the general assembly the donor Mst. Orku and the donee Mst. Naro (mtoher and daughter respectively) who are identified by Munshi Ram Numbardar admit and verify the factum of gift. Mst. Naro the donee states that she will retain this land with herself during her life-time and will have no right to alienate the same. On this statement, Rangtu the reversioner of the donor, on his identification by the Numbardar, gives his consent. Consequently sanction is accorded for mutation of half of Khata No. 33 measuring 23 Bighas and 2 bids was in favor of Mst. Naro for her life. Sd/. Revenue Officer,'
Smt. Orku died on 13th July, 1945. On 22nd January, 1959 Smt. Naro gifted the land to her daughter Smt. Kaushalya who is appellant in this Court and was defendant No. 2 in the trial Court. Smt. Naro who is respondent No. 2 in this Court was defendant No. 1 in the trial Court. The gift in favor of the appellant was by means of a registered deed and mutation was sanctianed in her favor by mutation entry No. 179 on 27th February, 1959. The plaintiff Mangtu alleging himself to be the grand-son of Nihala brought the present suit against the defendants Smt. Naro and her donee Smt. Kaushalya on 14th April, 1959 in the Court of Subordinate Judge first class, Nurpur, challenging the alienation of the land on the allegations frit the property being ancestral could nto be alienated by gift according to custom- governing the parties and as such the gift made by Smt Naro would nto affect his rights after her death.
(3) The defendants filed separate written-statements taking similar pleas. They pleased that the gift in favor of Smt. Naro was nto conditional and that she being in possession of the property when the Hindu Succeesion Act came into force became full owner thereof. They denied the ancestral character of the land and also pleaded that the parties were nto governed by custom in matters of alienation and succession andaverred that the plaintiff had no locus standi to sue.
(4) The trial Court dismissed the suit holding that the gift in favor of Smt. Naro had nto been proved to be conditional and thereforee she was competent to make a gift in favor of Smt. Kaushalya as full owner of the property. He also held that the property was nto ancestral and the parties were nto governed by custom in matters of alienation. He further held that the plaintiff had no locus standi to sue.
(5) The plaintiff appealed to the Court of the Senior Subordinate Judge, Kangra at Dharamsala. The appellate Court reversed the decision of the trial Court and held that although the land was nto ancestral, the parties were governed by custom according to which irrespective of the nature of the property, a widow cannto permanently alienate her husband's property.
(6) The appellate Court also held that the gift was conditional and since Smt. Naro had herself agreed to be bound by the condition that she was a limited owner and as such she hid no right to alienate thproperty permanently by means of a gift. As a result of that finding the lower appellate Court held that when the Hindu. Succession Act came into force Smt. Naro was in possession of the land under a conditional gift. The case was thereforee covered by sub-section (2) of section 14 and nto by sub-section (1) of section 14. The plaintiff's suit was accordingly decreed with costs throughout. This second appeal is Smt. Kaushalya and is directed against the aforesaid decision of the appellate Court below.
(7) The judgment and decree passed by the lower appellate Court, as already stated, has been attacked by the learned counsel for the appellant on several grounds.
(8) Firstly, it is urged by the learned counsel that the suit filed by the plaintiff was barred by limitation. According to the learned counsel, the plaintiff's right to relief could, only be as a reversioner to the last male holder of the property. Smt. Orku being alianted owner, a gift made by her in favor of Smt. Naro could nto ensure beyond her life. The right to sue for possession of the land thus accrued to the plaintiff on Smt. Orku's death on 13th July, 1945 when Smt. Naro continued to remain in possession of the property even after that date. A suit for possession could thereforee be filed by the plaintiff within 12 years from that date. But the present suit was nto filed by him till 14th April, 1959.
(9) Secondly, the plaint did nto contain any allegation that the alienation made by Smt. Orku was invalid the plaintiff could only succeed if he alleged and proved that he was a reversioner to the last male owner of the property and an alienation adversely affecting his rights had been made by the intervening limited owner. The challenge in the plaint is only to a gift by Smt. Naro. In the absence of such allegation the plaint did nto disclose any cause of action and should have been rejected out-right. In any case the issue regarding locus siandi should hava been decided against the plaintiff.
(10) Thirdly, the plaintiff having given his consent to the gift by Smt. Orku in favor of Smt. Naro was estopped from challenging the validity of the gift which had the effect of transferring ownership rights and possession of the property to the donee.
(11) Fourthly, the property being in the possession of Smt. Naru when the Hindu Succession Act came into force the same having been acquired by her under a gift valid made in her favor she became its full owner under sub-section (1) of section 14 of the Act. Subsequent transfer by her in favor of Smt. Kaushalaya was in her capacity as full owner of the property and thereforee conferred absolute ownership rights on the latter.
(12) Questions of limitation, estoppal and liability of the plaint to be rejected on the ground that it did nto disclose any cause of action were nto canvassed before the Courts below and thereforee cannto be allowed to be raised for the first time in a second appeal. The pleas of limitation and estoppoal were nto raised even in the written statements filed by the defendants. Likewise the plea that the plaint did nto disclose any cause of action and was thereforee liable to berejected was also nto raised in the written-statements. The issue regarding plaintff's locus staddi to sue was nto based on the plea that the plaint did nto disclose any cause of action: it arose out of the preliminray objection raised by the defendants to the effect that they had become full owners of the property under the Hindu Succession Act and as such the plaintiff had no locus standi to maintain any action against them.
(13) The only contention that needs consideration thereforee is whether sub-section (1) or sub-section (2) of section 14 governs the case. The section 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 nto as a limited owner. Explanationn.-In this sub-section, 'property' includes btoh 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 nto, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any toher manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Ntohing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any toher instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or toher instrument or the decree, order or award prescribe a restricted estate in such property.'
(14) Before construing the section and its appliction to the facts of the case, it is necessary to clear the fore-ground by referring to certain matters which have an important bearing on the question arising for consideration in this case. It has been found that the parties to the suit are 'Ghirth' by caste which is a prominant tribe of Tehsil Nurpur in District Kangra and that they are governed by custom. It was held by a Division Bench of Lahore High Court in Gobinda v. Nandu, a case relating to Ghirths of Kangra District, that the estate of a widow under customary law is subject to the same restrictions as that of a widow under the Hindu Law. This case was referred to with approval by a Division Bench of the same High Court (Abdul Rashid and M.C. Mahajan JJ.) in Titru Ram v. Mt. Parsinni where it was held that in the Kangra District a widow governed by customary law could sell the lands in case of necessity and her powers were nto restricted to temporary alienation. Lahori v. Radho and Mt. Kokan v. Mt. Lakhoo were some of the earlier decisions of the Punjab Chief Court which were referred by the learned Juges in this connection besides the Privy Council's decision in Mst. Subhani v. Nawab.
(15) The relevance of the Bench decision in Titru Ram's case, however, lics in Questions 2 and 3 in the Riwaj-i-am of 1868 relating to the Kangra District which were in the following terms and were held to be in accordance with the general custom as enunciated in Rattigan's Digest of Customary law :- Question 2 : Can widow a lienate by gift or by will Answer. In the presence of her husband's collaterals she can only do so with their consent. If there are no such collaterals she can do so without restraint. Question 3. Can a widow alienate by sale or mortgage Answer. She can do so far personal and proper necessity such as paying debts left by husband, marriage of daugliter, maintenance of children and paying Government dues. She must first offer to alienate to her husband's collaterals and can only alienate to tohers on their refusing. Answer to Question No. 45 created confusion with regard to her power to alienate permanently for necessity which was however clarified by the observation that the answer to that question had nto been correctly recorded and it was held that a widow in Kangra District had the same powers as a widow in the rest of the Province of Punjab.
(16) In this case we are concerned with answer 2 to Question No. 2 which correctly represents the law applicable to the case.
(17) The next point to be borne in mind is that Smt. Naro was stranger to the family and as such she had no pre-existing rights in the property gifted to her by Smt. Orku. According to the custom Smt. Orku could nto make a gift of the property inherited by her from her husband which would ensure beyond her life time. The gift in favor of Smt. Naro could thereforee ensure only till the death of Smt. Orku on 13th July, 1945. But the custom did permit Smt. Orku to made a gift in favor of Smt. Naro which would ensure even after her death if the next reversioner was willing to give his consent thereto.
(18) The gift in favor of Smt. Naro was also nto made by an instrument, registered or unregistered. It was an oral gift which was later evidenced by the donor and the donee appearing before the Revenue Officer and admitting and verifying the factum of gift. IT is at that time that Smt. Naro made a statement that she would retain the property with herself during her life-time and would have no right to alienate the same and on this statement Mangtu, the reversioner, gave his consent and the mutation of the property was sanctioned in favor of Smt. Naro for her life.
(19) There is ntohing to show that any conditions were imposed on Smt. Naro by the donor Smt. Orku. When the gift was made the Transfer of Property Act, 1882 did nto apply to Kangra District. It was thereforee nto necessary for the validity of the gift that it would have been effected by a registered instrument as required by Section 123 of that Act nor was the execution of a formal document necessary for the purpose. If thereforee with a view to avoid litigation and to ensure that the gift should ensure for the benefit of the donee even after the death of the donor the donee agreed with the collateral of the donor's husband that she shall retain possession of the property with herself for her life only and will also nto alienate the same, the arrangement could nto be treated as a condition of the gift at all. The lower appellate court was thereforee wrong in holding that the gift in favor of Smt. Naro was a conditional gift. The next question is whether as a result of the limitations which the donee herself imposed upon her rights under the above mentioned arrangement with the collateral of the donor's husband, she can be held to have agreed to the creation of a restricted estate in her favor. It has already been ntoiced that she had no pre-exting rights in the property. All her rights whatever they were, flowed from the gift. Her estate could nto thereforee be called what is known, in law as a Hindo woman's estate.
(20) It is in this back-ground that the question of application of one or the toher of the two sub-sections of Section 14 has to be considered.
(21) The construction of Section 14 has come up before various High Courts. There are also two decisions of the Supreme Court: Gummalapura Taggina Matada Ktoturnswami v. Setra Veeravva and Eramma v. Nserupana . Recently a Full Bench of this Court (I. D. Dua C. J., S.N. Andley and S.N. Shankar JJ.) has also dealt with the scope of section 14(1) in Smt. Chinti v. Smt. Daulto but the question as to whether a gift in a particular case is a conditional gift or is one that prescribes a restricted estate within the meaning of Sub-Section (2) of Section 14 has nto been considered in any of these cases.
(22) The principle of law that emerges from the decisions of the Supreme Court is that the object of Section 14 is to make a Hindu female a full owner of the property which she has already acquired or which she acquires after the enforcement of the Act. The Section does nto in any way confer a title on the female Hindu where she did nto in fact possess any vestige of title.
(23) Speaking of Section 14(1) inEramma's case their lordships observed:
'SECTION14 (1) of the Act contemplates that a Hindu female who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and nto revertible to the heirs of the last male holder.'
Explanationn to Sub-Section (1) defines property in terms of widest amplitude. But the Expination does nto apply to Sub-Section (2) which is confined to property acquired by a Hindu femal by only some of the modes of acquistion mentioned therein. It relates to property acquired by way of gift or under a will or any toher instrument or under a decree or order of a civil Court or under an award. The provision is in the nature of an exception to Sub-Section (1) in respect of property acquired by means described therein or in toher words in respect of such property, Sub-Section (1) has to be read as being subject to the provisions of Sub-Section (2). It lays down that in the case of such property one has to look to the terms of the gift, will or toher instrument or decree or order of a civil Court or award under which it has been acquired by her, to find out if the acquistion by her is of a restricted estate'.
(24) The term 'restricted estate' as observed by Gopal Rao Ekbtoe J. in Somthim Veerabhadra Rao v. Duggirala Lakshmi Devi, is nto defined in the Act. It also does nto appear in text of Hindu Law and it would be a mistake to equate it with the woman's estate or life estate as is commonly understood under the old Hindu Law. As I read the two SubSections of Section 14 the concept of woman's estate or life estate as understood under the old Hindu Law is already covered by Sub-Section (1) as in my opinion the conversion of that estate into an absolute estate is the principal object of Section 14. The legislature could nto have thereforee intended to take away with one hand what it had given to the Hindu female with the toher. The term has thus to beunderstood in reference to Sections 10 and 11 of the Transfer of Property Act. The condition in a gift or toher transfer of property restricting enjoyment is dealt with in section 10 and a restrictive condition repugnant to the intrest created is dealt with in Section 11. If the instrument merely creates a life interest without any restriction, it is obvious that it cannto be a 'restricted estate'. But if along with the creation of a life estate, certain valid restrictions arc put, then what is created is a 'restricted estate.'
(25) This is the view taken by Ekbtoe J. and I find myself in respectful agreement with the learned Judge. Where I differ from him, and I do so in all huminity. is when he goes on to add :
'IN order to attract the provisions of sub-section (2), three things must necessarily exist. Firstly, there must be an instrument or document in writing ; secondly that instrument or document must be the source or the foundation of the right of the Hindu female to the property in question ; and thirdly that document must contain terms which create 'restricted estate' taken by the Hindu female. It is plain that if any one of these essentialities is absent, the estate, taken by the women would fall under sub-section (1) and she will get absolute estate. The above said three requirements may be. said to constitute the test to determine whether a given case falls under sub-section (2). If that test is nto fulfillled, if the requirements of sub-section (1) are fulfillled, it must follow that the women instead of a restricted estate would get an absolute one. Sub-section (1) thereforee can be said to be subject to sub-section (2)
(26) In my view the first and second requirements about the gift or transfer being under an instrument or document in writing and about the instrument or document being the source or foundation of the right of the Hindu female to the property in question, on which emphasis has been laid by the learned Judge, do nto appear to be correct. Sub-section (2) does talk of acquisition of property under an instrument, but that is one of the several modes of acquisition mentioned therein. If the law permits oral gift, as it did in the instant case, merely because the . gift was nto under an instrument or document in writing, the application of sub-sect on (2) to such a gift can nto be slid to bs ruled out. The question as to whether the gift created a 'restricted estate' in the Property forming the subject matter of gift will in such a case have to be determined by reference to the intention of the parties gathered from the surrounding circumstances and oral testimony of witnesses if such direct evidence is available.
(27) Applying the above test to the facts of the present case the position is that the restriction which Smt. Naro imposed on herself and which induced the plaintiff Mangtu to give his consent to the miking of the gift in her favor resulted in a gift which did nto merely create in her a life interest in the property in question but also prevented her from alienating the same. Under Section Ii of the Transfer of Property Act, such restrictive condition is nto repugnant to the inetrestd created in her favor. It is well settled that though the provisions of the Transfer of Property Act did nto apply to Punjab at the material time, the principles underlying those provisions could be applied as rules of equity and good conscience.
(28) The result of the above discussion is that the gift in favor of Smt. Naro created a 'restrictive estate' in the property in question within the meaning of sub-section (2) of section 14 which precludes the application of sub-section (I) to the case. Smt. Naro thereforee could nto become a full owner of the property on the coming into fores of the Hindu Succession Act and thus could nto make a gift in favor of her daughter Smt. Kaushalaya.
(29) Mangtu plaintiff is admittedly the grandson of Nihala's brtoher and as such a revisionsr of the last mile holder. As was held by a Full Bench of the Punjab High Court in Amar Singh v. Sewa Ram there is ntohing in the Hindu Succession Act that had directly or indirectly taken away the rights of reversioners as such the Act in no way abolishes either reversioners or their rights or status. Where there is a restriction and control over the alienation of property, there the position of law before and after the Act continues to be the same and the next reversioner is entitled in law to the prtoection of his reversion.
(30) The result of the above discussion is that the appeal is dismissed, the judgment and decree of the lower appellate Court are upheld and the plaintiff's suit is decreed with costs throughout.