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PUNJAB & HARYANA HIGH COURT
S.S.Dewan, J.
Shiv Dass
Versus
Devki
Second Appeal No. 295 of 1968,765 of 1968,
Decided On : FEBRUARY 14, 1978
HINDU LAW - SUCCESSION - LIMITED ESTATE - GIFT BY WIDOW - VALIDITY - HINDU SUCCESSION ACT, 1956, SEC. 14 - WILL - EXECUTION - PROOF - REGISTRATION ACT, 1877, SECS. 58, 59, 60 - TRANSFER OF PROPERTY ACT, 1882, SEC. 41 - LIMITATION ACT, 1963, ART. 65 - RES JUDICATA.
Fact of the Case:
Mela Ram died in 1913, leaving behind his mother Smt. Radhan, who inherited his property as a limited estate. In 1922, Smt. Radhan executed a gift deed in favor of Shiv Dass, her pre-deceased daughter's son, transferring properties A, B, C, and D to him. Smt. Radhan passed away in 1960. In 1965, Smt. Devki, Mela Ram's sister, filed a suit challenging the validity of the gift deed, claiming that Smt. Radhan, as a limited owner, could not make such a gift. Shiv Dass and the alienees from him contested the suit, arguing that the gift was valid, the suit was barred by limitation and res judicata, and the alienees were protected by Section 41 of the Transfer of Property Act.
Finding of the Court:
The court held that Smt. Radhan, being a limited owner, was not competent to make a gift of the properties under Hindu Law, and the gift deed was therefore invalid and ineffective against Smt. Devki's interest. The court also found that the suit was not barred by limitation or res judicata. The court further held that the alienees from Shiv Dass could not claim protection under Section 41 of the Transfer of Property Act as they had not acted in good faith or made necessary inquiries before entering into the sale transactions.
Issues: 1. Whether Smt. Radhan, as a limited owner, could make a valid gift of the properties under Hindu Law? 2. Whether the suit was barred by limitation or res judicata? 3. Whether the alienees from Shiv Dass were protected by Section 41 of the Transfer of Property Act?
Ratio Decidendi: 1. Under Hindu Law, a limited owner is not competent to make a gift of property. 2. A suit for possession of immovable property by a Hindu entitled to possession on the death of a Hindu female is governed by Article 65 of the Limitation Act, 1963, and the period of limitation is twelve years from the date when the possession of the defendant becomes adverse to the plaintiff. 3. The principle of res judicata is not applicable where there is no finding in the previous litigation that the gift deed executed by the limited owner was competent and valid. 4. To claim protection under Section 41 of the Transfer of Property Act, the alienees must prove that they acted in good faith and made necessary inquiries before entering into the sale transactions.
Final Decision: The court dismissed both appeals, upholding the findings of the trial court and the lower appellate court. Smt. Devki was granted a decree for possession of the properties, except for property E, which was inherited by Shiv Dass under the testamentary disposition made in the gift deed.
1. This judgment will dispose of two regular second appeals No. 295 of 1968 by Shiv Dass and others and No. 765 of 1968 by Smt. Devki, which are directed against the judgment of the Additional District Judge, Gurdaspur dated 3rd of February, 1968, whereby the learned Judge dismissed the appeals, upholding the findings of the trial Court on the issues mooted before him.
2. The facts giving rise to the litigation at the instance of Smt. Devki may be set out briefly :-
Mela Ram was the last male-holder of the property in dispute consisting of a house, two shops and two pieces of agricultural land referred to in the heading of the plaint as A , B , "C, D and E respectively. On his death in the year 1913, the property devolved upon his mother Smt. Radhan, as a limited estate. She made a gift of the property A , B , C and D in favour of Shiv Dass, her pre-deceased daughter s son through a registered gift deed dated 28th of March, 1922. Smt. Radhan died on 21st of Dec. 1960. In between Shiv Dass made several alienations of the properties. The family is admittedly governed by Hindu Law in the matter of alienation and succession. Nand Lal and other reversioners of Mela Ram filed a declaratory suit in the year 1925 against Shiv Dass and thereby assailed the validity of the aforesaid gift deed on the ground that Smt. Radhan, being a limited owner, was not competent to make a gift of the properties. The suit was decreed. On appeal by Shiv Dass, the decree was vacated in view of the enforcement of Act. No. II of 1929 according to which, Shiv Dass came to be recognised as a preferential heir as against Nand. Lal etc.
3. The suit by Smt. Devki, who is daughter of Smt. Radhan, was instituted by her on 12th of March, 1965. It was pleaded by her that as a holder of limited estate Smt. Radhan had no right to make a gift of the properties inherited by her from Mala Ram, gift deed dated 28th March, 1922 in favour of Shiv Dass was consequently invalid and inoperative; gift dead could not operate beyond her life, she was in law a preferential heir to the properties as against Shiv Dass. Apart from Shir Dass, alienees from him were impleaded as defendants Nos. 2 to 47. Decree for possession of the entire property was claimed.
4. The defendants repudiated the claim of Smt. Devki pleading that she had no locus standi to question the validity of the gift deed, the suit was barred by limitation and by principle of res judicata in view of the judgment delivered in the suit instituted by the reversioners. On behalf of the alienees from Shiv Dass it was pleaded that they were bona fide purchasers for consideration without notice of the plaintiff s title and consequently protected by Sec. 41 of the T. P. Act.
5. The trial Court framed the following issues :-
(1) Whether Smt. Radhan deceased made a valid gift in favour of defendant No. 1?
(2) Whether the plaintiff has locus standi to challenge to gift or sue for possession?
(3) Whether the suit is within time?
(4) Whether Mst. Radhan deceased made a valid will in favour of defendant No. 1?
(5) Whether defendants 2 to 47 are bona fide transferees for value without notice of the plaintiffs title and are protected by Sec. 41 of the T. P. Act?
(6) Whether the suit is barred by res judicata as alleged in para 3 of the written statement?
(7) Relief.
6. The trial Court found that Smt. Radhan, being a limited owner of the property was not competent under the Hindu Law to make a gift and hence the gift was ineffective, the suit was neither barred by limitation nor by the principles of res judicata, Smt. Devki was in law a preferential heir to Shiv Dass, being the sitser of Mela Ram, the last male holder and as such had the locus standi to sue, protection of Sec. 41 of the T. P. Act could not be claimed by the alienees and lastly the gift deed exhibited as D-2 contained a testamentary disposition with the result that Shiv Dass was entitled to inherit the property not specifically gifted, i. e., the agricultural
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