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Smt. Sumitra and anr. Vs. Smt. Maharaju and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Regular Second Appeal No. 2 of 1961
Judge
Reported inAIR1963HP21
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 27(1); ;Hindu Succession Act, 1956 - Section 14
AppellantSmt. Sumitra and anr.
RespondentSmt. Maharaju and ors.
Appellant Advocate D.R. Chaudhary, Adv.
Respondent Advocate Indar Singh, Adv.
DispositionAppeal dismissed
Cases ReferredHanuman Prasad v. Indrawati
Excerpt:
- .....that her father was the last male-holder of the disputed property and respondent no. 2 had merely limited rights therein and was not competent to make a gift in respect of it, that the appellants were her illegitimate daughters and on the aforesaid allegations she filed the suit for a declaration that the aforesaid deed of gift was void and ineffective against her reversionary interest and could not enure beyond the life time of the donor. respondents nos. 3 to 9 were impleaded as pro forma defendants.3. respondent no. 5 was the husband of appellant no. 2 and he, the appellants and respondent no. 2 contested the suit upon the grounds that respondent no. 1 was not the daughter of panjku, that panjku was not the last male-holder of the disputed property, that the appellants werethe.....
Judgment:

C.B. Capoor, J.C.

1. This second appeal by Smts. Sumitra and Kagdu is directed against a judgment and decree of the learned District Judge Mandi and Chamba districts whereby an appeal preferred by the respondents against a judgment and decree of the learned additional Subordinate Judge Mandi dismissing the suit filed by respondent No. 1 was accepted.

2. Respondent No. 1 was the daughter and respondent No. 2 was the widow of Panjku. Respondent No. 2 executed a deed of gift dated 7-2-1956 in favour of respondent No. 1 and the appellants in respect of the property set forth in paragraph 1 of the plaint in equal shares. Respondent No. 1 alleged that her father was the last male-holder of the disputed property and respondent No. 2 had merely limited rights therein and was not competent to make a gift in respect of it, that the appellants were her illegitimate daughters and on the aforesaid allegations she filed the suit for a declaration that the aforesaid deed of gift was void and ineffective against her reversionary interest and could not enure beyond the life time of the donor. Respondents Nos. 3 to 9 were impleaded as pro forma defendants.

3. Respondent No. 5 was the husband of appellant No. 2 and he, the appellants and respondent No. 2 contested the suit upon the grounds that respondent No. 1 was not the daughter of Panjku, that Panjku was not the last male-holder of the disputed property, that the appellants werethe legitimate offsprings of respondent No. 2, that the gift had been given effect to and the appellants were in possession of the donated property and that respondent No. 1 was not entitled to maintain the suit. It was also pleaded that the appellants had acquired an absolute estate by virtue of the provisions of the Hindu Succession Act, 1956.

4. During the course of argument it was conceded on behalf of the contesting defendants that respondent No. 1 was the daughter of Panjku and respondent No. 2 and that the appellants were the illegitimate daughters of respondent No. 2. On the other disputed questions the learned Court held that Panjku was not proved to be the last male-holder of the disputed property. Aggrieved by the aforesaid decision, respondent No. 1 preferred an appeal. The learned District Judge upset the finding on the question as to whether Panjku was the last male-holder of the disputed property and held that respondent No, 2 had merely limited lights in the said property and repelled the contention advanced on behalf of the appellants that they had acquired absolute interest in the disputed property by virtue of Section 14 of the Hindu Succession Act and granted the declaratory relief prayed for by respondent No. 1.

5. The first question that has been raised onbehalf of the appellants is that the learned Court of appeal erred in admitting additional evidence. It appears that an application was filed in the trial Court for permission to produce additional evidence but that application was rejected. The correctness of the aforesaid order was challenged inthe Court of appeal and the contention found favour with it and in my opinion rightly.

6. The relevant portion of Order 41, Rule 27, Civil P. C., runs as below:

'The parties to an appeal shall not be entitledto produce additional evidence, whether oral or documentary in the Appellate Court. But if :

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence ordocument to be produced, or witness to be examined.'

7. It will have been noticed that the aforesaid rule consists of two parts. The first part embraces a case in which the trial Court has refused to admitevidence which ought to have been admitted andthe second part relates to a case in which the Appellate Court requires additional evidence to be produced in order to enable it to come to a decision. Thus, a party to a suit has no right to file additional evidence at the appellate stage if anapplication was not made by it in the trial Court for being permitted to produce that evidence unless the Appellate Court itself requires such evidenceto be produced in order to arrive at a decision of the case. The instant case falls under Clause (a).The expression 'ought to be admitted' in my opinion means 'should be admitted in the exercise ofsound discretion.' In other words, if the interest of justipe require the admission of additional evidence permission for its admission should be accorded. The documents which the appellants sought to produce in the trial Court were certified copies of public documents and had a material bearing on the case. The learned trial Court would thus have exercised a better discretion in allowing them to be brought on record.

8. The cases cited on behalf of the appellants namely (i) State of U.P. v. Manbodhan Lal Srivastava, (S) AIR 1957 SC 912, (ii) Jit Ram v. Chaudhari, AIR 1953 Bilaspur 17 and (iii) Mohammad Akbar Khan v. Mt. Motai, AIR 1948 PC 36, were cases which fell under Clause (b) and not under Clause (a), referred to above, and as such are not applicable to the instant case.

9. The second question that arises tor decision is as to whether by virtue of Section 14 of the Hindu Succession Act the appellants had become full owners of the disputed property. The precise contention advanced on behalf of the appellants is that as the appellants were Hindu females and were possessed of the disputed property at the time of the coming into force of the Hindu Succession Act they had become absolute owners thereof. The contention is a plausible one but, as will presently appear, it is not sound.

10. Section 14 of the Hindu Succession Act reads as below:

'(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.'

11. The expression 'shall be held by her as full owner thereof and not as limited owner' is significant and means that the property which prior to the coming into force of the aforesaid Act was held by a Hindu female as limited owner will thereafter be held by her as full owner. The learned counsel for the appellants seems to overlook altogether the expression 'and not as a limited owner' in putting forward the contention, referred to above. It was not the intention of the Legislature that after the coming into force of the aforesaid Act a Hindu female shall have absolute rights in any and every property possessed by her. The intent of the Legislature was that if a Hindu female possessed any property whether acquiredbefore or after the commencement of the Hindu Succession Act as a limited owner she shall have absolute rights therein after the coming into force of the aforesaid Act. The expression 'limited owner' has not been defined in the Hindu Succession Act but its connotation is too wellknown. An essential ingredient of ownership is the power of disposal over the thing owned. A limited owner is an owner who does not enjoy the full power of disposal over the property owned. Thus a person in order to be a limited owner must have ownership rights. Under the Hindu law a widow inheriting the separate property of her husband or a daugher inheriting the property of her father did not have absolute rights of ownership in such property and they were known as 'limited owners'.

12. Adverting to the facts of the present case one finds that respondent No. 2 had limited rights in the disputed property. She made a gift in favour of the appellants and respondent No. 1 prior to the coming into force of the Hindu Succession Act. The appellants were not the next presumptive reversioners to the estate of Panjku and the deed of gift in question cannot be held to have accelerated succession. On the assumption that respondent No. 2 had parted with possession she could not be said to be possessed of the aforesaid property at the time that the Act came into force and she could not and did not, therefore, acquire absolute rights therein on the coming into force of the said Act and the next presumptive reversioners had a right to challenge the aforesaid gift and to seek a declaration that it would be void and ineffective as against their interests.

In support of the aforesaid proposition of law there is preponderance of judicial authority vide AIR 1959 SC 577 Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva, AIR 1958 Pat 581 (FB), Harakh Singh v. Kailash Singh; AIR 1962 Pat 296 Tulsi Ahir v. Mt. Soni, AIR 1962 Orissa 190 Gangadhar Charan Naga Goswami v. Sm. Saraswati Bewa, AIR 1961 Him Pra 10 Devi Singh v. Mt. Phulma and AIR 1960 Punj 530 (FB), Amar Singh v. Sewa Ram. On behalf of the appellants reliance was placed upon a ruling of the Punjab High Court reported in AIR 1960 Punj 404 Smt. Chawli v. Hansa in support of the contention that a deed of gift executed by a limited owner such as a Hindu widow or mother is unlawful and the donor should be deemed to be in possession of the donated property.

In the aforesaid case mother was in possession of property as heir to her son who died issuelesswithout leaving any widow. She made a gift ofher property in favour of her daughters. A suit was filed by the reversioners who were collaterals in the fifth degree to challenge the deed of gift. It was held that the daughters and sisters were preferable to fifth degree collaterals in respect of ancestral and non-ancestral property and that finding was sufficient for the disposal of the case. In the alternative it was also held that the possession of the donees could not be regarded to be unlawful and it had ripened into full ownership under Section 14 of the Hindu Succession Act. The aforesaid observations were thus more in the nature of obiter dicta. That apart the view on the alternative casedid not find favour with the majority of the Judges composing the Full Bench in the case of Amar Singh, AIR 1960 Punj 530 (supra).

A Division Bench of the Allahabad High Court had in the case of Hanuman Prasad v. Indrawati, AIR 1958 All 304 held that by virtue of the provisions of Section 15 of the Hindu Succession Act reversioners had completely disappeared and after the passing of that Act nobody could get a decree as reversioner even though the alienation by a Hindu widow be such that it could have been successfully challenged at the instance of the reversioners prior to the enforcement of the said Act. The aforesaid decision was considered by this Court in the case of AIR 1961 Him Pra 10 referred to in the foregoing portion of this judgment and for reasons assigned therein the view expressed in the Allahabad case was, with respect, not followed.

13. The right which the appellants acquired under the aforesaid deed was to remain in possession of the donated property during the life time of (respondent No. 2. They did not have any right of ownership therein and their rights were akin to those of a licensee. They could not thus be characterized to be 'limited owners' of the property and their rights were not capable of maturing into absolute rights by virtue of Section 14, referred to above. Sub-section (2) of Section 14 is in the nature of an exception and it excepts from Sub-section (1) property acquired by way of gift..........where the terms of the gift......prescribed arestricted estate in such property and it is clear that the property referred to in Sub-section (1) is property which if acquired by gift was such in which the donor had and purported to transfer absolute rights. In the instant case respondent No. 2 did not have absolute rights in the property donated and ex hypothesi she was incompetent to transfer such rights and the appellants cannot be held to have acquired absolute rights therein.

14. If the contention advanced on behalf of the appellants were to be accepted an anomalous position will arise, as will appear from the following illustration:--A gift is made by a Hindu female having limited rights of ownership in favour of strangers some of whom are males and some females prior to the coming into force of the Hindu Succession Act. According to the contention advanced on behalf of the appellants the females would acquire absolute rights in the donated property whereas the male donees will have the right to remain in possession during the life time of the donor. The next presumptive reversioner will have a right to challenge the gift so far as it is in favour of the males and not so far as it is in favour of the females and I am prone to think that the Legislature did not intend to bring about such an anomalous position. I am, therefore, unable to accept the contention advanced OR behalf of the appellants.

15. It has lastly been contended on behalf of the appellants that possession of the donated property was not transferred by respondent No. 2 to the donees and as such respondent No. 2 should be held to have been in possession of the said property and by virtue of Section 14, referred to above,to have become absolute owner thereof. In support of the aforesaid contention reliance has been placed upon an averment in the plaint to the effect that the possession was not transferred in pursuance of the deed of gift. A reference to the written-statement filed by the appellants will, however, indicate that they claimed to have entered into possession of the disputed property in pursuance of the deed of gift and in the face of that allegation it is not open to them to put forward the aforesaid contention.

16. Cases in which a finding is recorded by a Court of law that the donor did not part with possession of the donated property, however, stand on a different footing. In the instant case there is no such finding.

17. In conclusion, the appeal fails and is hereby dismissed with costs.


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