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HIGH COURT OF HIMACHAL PRADESH
C. B. CAPOOR, J.
Devi Singh
Versus
Phulma
First Appeal No. 12 of 1959
Decided On : 13-09-1960
HINDU LAW - JOINT FAMILY - SEPARATION - EVIDENCE - MUTATION ENTRIES - PRESUMPTION OF JOINTNESS - REBUTTAL - GIFT BY WIDOW - VALIDITY - HINDU SUCCESSION ACT, 1956, SECS. 14, 15 - REVERSIONERS - RIGHT TO CHALLENGE GIFT - DECLARATORY RELIEF.
Fact of the Case:
The plaintiffs filed a suit for a declaration that the gift-deed executed by Mt. Phulma, defendant No. 1, in respect of a one-half share of land and some other property, in favour of Jit Singh, the since deceased defendant No. 2, and Rati Ram, defendant No. 3, was void and ineffective. The main allegations were that the plaintiffs, Mehar Singh, the husband of Mt. Phulma, and Jit Singh and Rati Ram were members of a joint Hindu family governed by the Mitakshara branch of the Hindu Law, that the property comprised in the deed of gift, referred to above, was coparcenary property and was not in possession of Mt. Phulma and as such she was not competent to transfer the same. In the alternative, it was alleged that even if the aforesaid property is held to have been the self-acquired property of Mehar Singh, his wife Mt. Phulma could have had a limited interest only therein and the gift made by her would not ensure beyond her life time.
Finding of the Court:
The court found that Mehar Singh had separated from the other members of the family and his one-half share in the family property was inherited by Mt. Phuhna. The court also found that the plaintiffs were not entitled to maintain the suit for a declaratory relief claimed in,-the alternative in view of S. 14 of the Hindu Succession Act, or of the fact that the donees were also the reversioners to the estate of Mehar Singh.
Issues: 1. Whether Mehar Singh had prior to his death separated from the other members of the family and his one-half share in the family property was inherited by Mt. Phuhna. 2. If the answer to the aforesaid point be in the affirmative, whether the plaintiffs were not entitled to maintain the suit for a declaratory relief claimed in,-the alternative in view of S. 14 of the Hindu Succession Act, or of the fact that the donees were also the reversioners to the estate of Mehar Singh.
Ratio Decidendi: 1. The court held that the entries in the revenue papers indicating that the shares of the different members of the family were specified and defined in the revenue papers even in the life time of Mehar Singh, that after his death the names of his widows were entered as against his one-half share as heirs and that at the time of attestation of mutation some of the adult family members were present, were sufficient to rebut the presumption of jointness. 2. The court held that the donees had entered into possession of the property comprised in the deed of gift and, therefore, Mt. Phulma did not acquire absolute title to the aforesaid property. However, the court also held that the plaintiffs were entitled to a declaration that the gift deed in question shall be void and ineffective against the reversionary rights of the plaintiffs.
Final Decision: The appeal was accepted, the decree passed by the Court below was set aside and the plaintiffs suit was decreed for a declaration that the gift deed dated 16-3-1955 executed by Mt. Phulma in favour of Jit Singh and Rati Ram was void and ineffective against the rights of the reversioners to the estate of Mehar Singh and shall not enure beyond the life time of Mt. Phulma.
2. The main allegations were that the plaintiffs, Mehar Singh, the husband of Mt. Phulma, and Jit Singh and Rati Ram were members of a joint Hindu family governed by the Mitakshara branch of the Hindu Law, that the property comprised in the deed of gift, referred to above, was coparcenary property and was not in possession of Mt. Phulma and as such she was not competent to transfer the same. In the alternative, it was alleged that even if the aforesaid property is held to have been the self-acquired property of Mehar Singh, his wife Mt. Phulma could have had a limited interest only therein and the gift made by her would not ensure beyond her life time.
3. According to the pedigree table, proved in the case, Rattan the father of Mehar Singh and Gosain, the great grandfather of the plaintiffs, were own brothers, being the sons of Narpat. Gosain had two sons named Dass and Sidhia. Dass had three sons named Shibu, Lagnu and Harsliu. Jit Singh and Ratti Ram were the sons of Shibu, Durga, Tulsi Ram, Harmand and Kahan Singh were the sons of Lagnu; Narain Singh was the son of Harshu. Devi Singh, Daulat Ram and Dhyan Singh were the sons of Harichand. The sons of Langu, Harshu and Harichand figured as plaintiffs to the suit.
4. The suit was resisted by the defendants 1 to 3 mainly on the allegations that about 52 years back Mehar Singh separated from other members of the family except the father and grandfather of the donees with whom he continued to remain joint, that after the death of Mehar Singh, the names of his widows Mt. Phulma and Mt. Rajjo were entered in the revenue papers as against his one-half share, that at the time of the making of the gift Mt. Phulma was in possession of the donated property and that under the Hindu Succession Act of 1956 her estate was enlarged and she became the full owner of the property left behind by her husband. Mt. Begamu, the widow of Harshu, was impleaded as defendant No. 4, who did not contest the suit.
5. The learned Senior Subordinate Judge framed as many as 9 issues some of which overlapped inter se and one, namely Issue No. 8, was quite unnecessary. The conclusions reached by the learned Senior Subordinate Judge inter alia were that (i) Mehar Singh had separated from the other members of the family, was in possession of his one-half share, the property comprised in the deed of gift was not coparcenary property and the plaintiffs did not have, any interest therein; (ii) as Mt. Phulma was not in possession of the disputed property at the time when the Hindu Succession Act of 1956 came into force she did not become the absolute owner thereof and (iii) as the donees were themselves the reversioners to the estate of Mehar Singh, the plaintiffs were not entitled to challenge the deed of gift.
6. Such of the aforesaid findings as were against the plaintiffs have been challenged in appeal. The points for determination are (a) whether Mehar Singh had prior to his death separated from the other members of the family and his one-half share in the family property was inherited by Mt. Phuhna. (b) If the answer to the aforesaid point be in the affirmative, whether the plaintiffs were not entitled to maintain the suit for a declaratory relief claimed in,-the alternative in view of S. 14 of the Hindu Succession Act, or of the fact that the donees were also the reversioners to the estate of Mehar Singh.
7. Point (a) : The defendants have filed extracts from Register Intkalat Exs. D.W. 3/32 to Ex. D.W. 3/35. Ex. D.W. 3/32 bears out mat in the life time of
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