1995 Supreme(P&H) 912

PUNJAB & HARYANA HIGH COURT
N.K.Kapoor, J.
Darshan Kaur
Versus
Mehal Singh
Regular Second Appeal No. 1220 of 1993,
Decided On : AUGUST 14, 1995

A widow's right of maintenance and share in the coparcenery property as a Class I heir under Section 6 of the Hindu Succession Act cannot be restricted by a Tamleeknama, and she becomes the full owner of the property under Section 14(1) of the Act.

Headnote:

HINDU SUCCESSION ACT - SECTION 6, 14 - TAMLEEKANAMA - VALIDITY - INTERPRETATION - OWNERSHIP RIGHTS - MAINTENANCE RIGHTS - COPARCENARY PROPERTY - WILL - EXECUTION - PROOF.

Fact of the Case:

Plaintiffs filed a suit for declaration that they are owners of the land and that defendant No. 1 Smt. Mejo is only a limited owner and so defendant No. 2 Smt. Darshan Kaur has no concern or interest in the suit land, with a consequential relief of permanent injunction restraining the defendants not to alienate the suit land in any manner. The defendants denied the material averments made in the plaint. According to the case set up by the defendants, the land was originally owned by Hardit Singh from whom Josha Singh inherited the property and so Josha Singh along with his four sons became entitled to the same i.e. 1/5th share each. It is in recognition of this right that defendant No. 1 was put in possession of the property (as Mohinder Singh had already died). The defendants also set up a plea of adverse possession. She further made averment to the effect that she is full owner of the property and so competent to deal with as she likes. Tamleeknama was stated to be a void document having been prepared in collusion with the scribe and the witnesses to defeat the rights of the defendants. It was further stated that defendant No. 1 has already sold the land vide sale deed dated 5.1.1987 to defendant No. 2 for consideration of Rs. 21,000/-. This way she is a bona fide purchaser in good faith for consideration without any notice of any Tamleeknama and as such protected Under Section 41 of the Transfer of Property Act.

Finding of the Court:

The trial Court held that Tamleeknama having not been proved is illegal, void being a unilateral document and hence does not bind the defendants. Accordingly, the trial Court held that defendant Smt. Mejo cannot be held to be limited owner of the suit land in terms of said Tamleeknama. Examining the plea of the parties whether Smt. Mejo was entitled to a share in respect of the ancestral/coparcenary property, the Court held that on the death of a coparcener notional partition is presumed and so she is entitled to get her share which her husband would have got in formal partition. Accordingly, the Court held that Smt. Mejo had 1/5th share in the joint holding on the basis of a notional partition. Since she has been found to be in possession from the year 1978 onwards, both these issues were decided in favour of the defendants and against the plaintiffs. The appellants Court while re-examining the matter did not give decision in respect of each issue. The Court, however, dilated upon the pleas raised by the appellants in respect of Tamleeknama, their possession being co-sharer and so the suit being within limitation and their contention that the sale deed was merely a sham transaction as no part of the sale consideration was paid before the Sub Registrar at the time of registration of the sale deed. Similarly, grievance was made with regard to the findings of the trial Court in respect of the will dated 22.3.1971. Examining the Tamleeknama dated 28.8.1975, the lower appellate Court considered it to be a valid document as the same had been scribed by deed writer Barkat Ram and attested by Dr. Dalip Singh and Santa Singh Lambardar and it being a registered document. Since it was a registered document, there was no necessity to examine the attesting witnesses. According to the Court, Tamleeknama is unilateral act and hence signatures of Smt. Mejo were not required on Tamleeknama. Moreover, mutation had been sanctioned in favour of Smt. Majo and her name finds recorded in the revenue paper and it is on the basis of this entry that she is shown to be in possession of the property thereafter. However, the Court came to the conclusion that since Smt. Mejo had succeeded on the basis of Tamleeknama, she has a life interest and hence could not alienate the suit land during her life time. Discarding the plea of the defendants with regard to notional partition, it was held that no such plea had been taken in the written statement. Examining the plea of the defendants that the plaintiffs are not in possession of the suit land, the Court held that possession of Smt. Mejo is that of a co-sharer and so the plaintiffs will be deemed to be in possession of the property. Accordingly, issues No. 1 and 2 were reversed. Reversing the finding of the trial Court in respect of the sale deed executed by Smt. Mejo in favour of her daughter Smt. Darshan Kaur, it has been held that since Smt. Mejo was a limited owner and the fact that the sale had been made in favour of the daughter, it can be presumed that Smt. Darshan Kaur had the knowledge of Tamleeknama and so such a sale is without consideration and is thus not protected Under Section 41 of the Transfer of Property Act. Issues No. 7 and 8 were accordingly reversed. Similarly, the Court held that the will has been proved to be a valid document and mere non-mentioning the names of the widow and daughter of Mohinder Singh cannot be taken to a suspicious circumstance. Accordingly, the appeal was accepted, setting aside the judgment and decree of the trial Court and so the suit of the plaintiffs was decreed.

Issues: 1. Whether the plaintiffs are owners in possession of suit land and defendant No. 1 is only a limited owner on the basis of Tamleeknama dated 28.8.1975? 2. Whether the suit is not maintainable in the present form, as alleged? 3. Whether the suit is time barred? 4. Whether the suit is bad for non-joinder of necessary parties, as alleged? 5. Whether the suit is properly valued for the purposes of Court fee and jurisdiction? 6. Whether the plaintiffs are estopped by their act and conduct? 7. Whether Darshan Kaur defendant No. 2 is bona fide purchaser in good faith for consideration without notice on the basis of sale deed dated 5.1.1987 and is protected Under Section 41 of Transfer of Property Act? 8. Whether the sale deed in favour of defendant No. 2 is null and void, without consideration and a paper transaction, as alleged? 9. Whether the defendants have become owner of the suit land by way of adverse possession in the alternative, as alleged? 10. If issue No. 1 is proved, whether Tamleeknama is void document and illegal and paper transaction, as alleged? 11) Relief.

Ratio Decidendi: 1. The Tamleeknama, being a registered document, was valid and did not require the examination of attesting witnesses. 2. Smt. Mejo, as the widow of Mohinder Singh, had a right of maintenance and a share in the coparcenery property as a Class I heir under Section 6 of the Hindu Succession Act. 3. The Tamleeknama, even if considered valid, was a recognition of Smt. Mejo's pre-existing rights and did not create a restricted estate. 4. Under Section 14(1) of the Hindu Succession Act, Smt. Mejo became the full owner of the property and could deal with it as she wished. 5. The sale deed executed by Smt. Mejo in favor of her daughter, Smt. Darshan Kaur, was valid and not challengeable by the plaintiffs.

Final Decision: The appeal was allowed, the judgment and decree of the Additional District Judge were set aside, and the judgment and decree of the trial Court were affirmed, dismissing the plaintiffs' suit.