Saroop Singh vs Banto - 2005 Supreme(SC) 1354

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2005 Supreme(SC) 1354

2005(7) Supreme 144
Supreme Court of India
(From Punjab and Haryana High Court)
S.B. Sinha & R.V. Raveendran, JJ.
Saroop Singh —Appellant
versus
Banto & Ors. —Respondents
Civil Appeal No. 4426 of 1999
Decided on 7-10-2005
Counsel for the Parties :
For the Appellant : P.L. Jain, Sr. Advocate, Balbir Singh Gupta, Advocate.
For the Respondents : P.N. Mishra, Sr. Advocate, K.P. Singh, Dr. H.P. Rathi, K.S. Rana, M.M. Kashyap, Shalman Ali and Hirender Chaudhary, Advocates.

Headnote:Hindu Succession Act, 1956—Section 14—Punjab Limitation (Customs) Act, 1920—Entry 2(b) of schedule—Limitation Act, 1963—Sections 64 and 65—Suit for possession and injunction filed in 1994—Plaintiffs were daughter of deceased owner on whose death widow inherited the suit property and on 7.1.1955 by a gift deed widow donated suit property in favour of appellant-Reversioners of deceased filed suit in 1957 challenging the legality of gift and suit was decreed in 1958 holding that declaratory decree would ensue for benefit of daughters—Gift deed dated 7.1.1955 was held to be valid only so long donor widow was alive—On death of widow succession reopened—Suit was decreed by Courts below—Appeal—Death of widow was not in question but date of death was—Court shall presume that she was dead having not heard of for 7 years by those who would have naturally heard of her if she had been alive but that by itself would not be a ground to presume that she had died seven years prior to institution of suit—Appellant however had not raised any plea of adverse possession—No reason to interfere with decree passed by Courts below.
       Held : It has not been disputed before us that the judgment and decree passed in Suit No. 204 of 1957 had attained finality. In the said suit, it was held:
       “...In the present case the declaratory decree will ensue for the benefit of the daughters of Shadi deceased and the daughters’ sons who are minors. In the circumstances, I would in exercise of my discretion, grant the plaintiffs a decree for a declaration to the effect that the gift in dispute shall not affect their reversionary rights after the death of defendant No. 1. The parties are, however, left to bear their own costs....”
       It is furthermore not in dispute that Indira Devi had only a life interest. The deed of gift dated 7.1.1955 was, therefore, held to be valid only so long as she was alive. On her death the succession reopened having regard to the provisions of the Hindu Succession Act, 1956. The Respondents being daughters inherited the interest of Shadi. They were also reversioners in terms of their personal law as was opined by the Civil Court in the earlier suit. The plaintiff-respondents, therefore, rightly claimed their title by inheritance. (Paras 15 and 16)
       There is neither any doubt or dispute that the date of death of Indira Devi is not certain. By reason of the aforementioned provision, a presumption of death can be raised. In this case, however, death of Indira Devi is not in question, the date of death is. In the instant case, both the parties have failed to prove the date of death of Indira Devi. However, having regard to the presumption contained in Section 108 of the Indian Evidence Act, the Court shall presume that she was dead having not heard of for a period of seven years by those who would naturally have heard of him, if he had been alive, but that by itself would not be a ground to presume that she had died seven years prior to the date of institution of the suit. (Para 21)

Judgment

S.B. Sinha, J.—The first defendant in the suit is in appeal before us. The plaintiff-respondents filed a suit for possession and permanent injunction being Suit No. 218 of 1994.

2. One Shadi admittedly was the owner of the suit property. He left behind his widow, Indira Devi, who inherited the same. On or about 7.1.1955 by a deed of gift Indira Devi donated the suit property in favour of the Appellant herein. One Harnama son of Jatti and Nathu son of Chetu (as reversioners of said Shadi) filed a suit being Suit No. 204 of 1957 challenging the legality of the said deed of gift, contending that said Indira Devi had a limited life interest therein.

3. In terms of a judgment and decree dated 31.1.1958, the said suit was decreed. The said Indira Devi is stated to have died subsequently. Her date of death is not known. The Appellant - First Respondent contended that she died at Haridwar in the year 1961. While filing the aforementioned suit on 7.7.1994, the Respondents raised a plea that as she was not heard for a period of seven years prior thereto, by them and by others who would have heard from her had she been alive, she was presumed to have been died.

4. The plaintiffs-Respondents as regard the earlier suit averred:

“One Harnama son of Jatti and one Nathu son of Chetu challenged the gift deed mentioned above in the year 1957 through a suit No. 204 and sought declaration to the effect that the gift deed in dispute shall not effect their reversionary rights after the death of Inder Devi and their suit was decreed on 31.1.58 by Sub-Judge, Ist Class, Ambala. However, at the same time it was observed by the Ld. Sub-Judge, that declaratory decree will ensue for the benefit of daughters of Shadi deceased. Apart from it under the customary law of Punjab Smt. Inder Devi was not absolute owner on 7.1.1955 i.e. the day of gift of the suit properties, rather on the other hand she was only having life interest in the suit properties and could not gift away the same to defendant No. 1 as Smt. Inder Devi had already parted with the suit properties in favour of defendant No. 1 and could not become absolute owner with the pasasing of Hindu Succession Act, 1956, rather her life interest continued through in the hand of defendant No. 1.”

5. In the said suit, the plaintiff-respondents prayed:

“It is, therefore, prayed that the suit of the plaintiffs for possession as owner of the land comprised in Kh/kh. No. 285/356, Khasra Nos. 194(8-4), 195(5-7), 2124(6-18), 1854(1-2), 1859(4-7), 1856(4-7), 851(4-3), 850/2(0-8), 1621(0-15), and for symbolical possession as owner of the land comprised in kh/kh No. 285/337. Khasra Nos. 849(1-10), 850(3-7), situated within the revenue limits of village Mullanpur Garib Dass and of 1/6 share of kh No. 2078(3-7) and of 1/6 share out of Bara bounded as.........and for permanent injunction restraining the defendant No. 1 from alienating the suit properties to anybody may kindly be decreed in favour of the plaintiff against the defendants with costs.

Any other relief this Ld. Court deeds fit may kindly be granted to the plaintiff in the interest of justice.”

6. The statements made in paragraph 1 was traversed by the Appellant herein in paragraph 3 of the written statement, contending.

“It is incorrect and denied. Smt. Inder Devi who had been absolute owner of the suit properties and she made a valid gift in favour of the answering defendant.”

7. A plea that the suit is time-barred was also raised as an additional plea.

8. The learned Trial Judge in view of the pleadings of the parties, inter alia, framed the following issues:

“3. What is the effect of the judgment and decree dated 31.1.1958? OPP. Parties.

4. Whether Smt. Inder Devi has not been heard for the last 7/7 1/2 years back by plaintiff and other family members and is presumed to be dead? OPP.

5. Whether plaintiffs are entitled to possession of the suit land. OPP.

6. Whether suit is time barred? OPP.”

9. While dealing with Issue No. 3, the Trial Court noticed that in the

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2005 Supreme(SC) 1354

Cases Referred (5)