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2011 Supreme(P&H) 2087
2012(3) LAW HERALD (P&H) 1956
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice K.Kannan
Regular Second Appeal No.2027 of 1980 (O&M)
Udham Singh (deceased) through his LRs & Ors.
v.
Harnek Singh & Ors.
{Decided on 02/12/2011}
For the Petitioners:Mr. M.L. Sarin, Senior Advocate, with Ms. Alka Sarin, Advocate, and Mr. Nitin Sarin, Advocate.
For the Respondents:Mr. Alok Jain, Advocate.
Succession--Widow gifting the property to daughter but possession of property remained with the widow--Daughter died before the 1956 Act--Widow u/s 14(1) of the Act is the absolute owner.
Headnote:Hindu Succession Act, 1956, S.14(1)--Property divested with the widow--Widow gifted the property to her daughter but the possession remained with the widow--Daughter died before the 1956 Act--If the widow had been in possession of property of the widow's estate, by virture of section 14(1) of the Act, the widow's estate will be enlarged to absolute interest--If the widow herself had parted with possession then the person who holds the property will hold the property during the life time of the widow only with the incident of a limited right and not a full right which the widow would have obtained by virture of section 14(1)--In a case where the alienee was in possession of property, the applicability of Section 14(1) does not simply arise and the right of succession obtaining in faovour of the reversioner to the exclusion of alience could never be doubted. (Paras 7, 11)
Mr. K. Kannan, J.:- The lis & geneology
1. The plaintiffs, who were successful for securing a half share in the suit properties suffered a reversal of the decision at the appellate court. The Additional District Judge allowed the appeal of the defendants and dismissed the plaintiffs’ suit. The plaintiffs are the appellants before this Court.
2. The suit related to the estate of Jiwan Singh. The case will have to be understood in the context of the relationship between parties and it is, therefore, immediately set forth as under:-
Makhan Singh
Jiwan Singh Narain Singh
(Died prior to 1930)
Chand Kaur (2nd wife) Bholi (1st wife)
(Died on 09.04.1978) (died in 1930)
Gurbansi Chinti
(Died on 15.02.1954)
Harnek Singh Jagtar Singh Avtar Singh Udham Singh Bakhshish Singh Nami
(defendants) (plaintiffs)
II. History of previous litigation
3. It is an admitted case that Jiwan Singh died before 1930 leaving behind two widows, namely, Bholi and Chand Kaur. The two widows held their respective widow’s estate jointly and on the death of Bholi, the properties survived to Chand Kaur. Chand Kaur had made a settlement of the property that she inherited in favour of Gurbansi, her daughter on 29.06.1929. Chinti, who was the only daughter of the first wife Bholi, filed a suit impeaching the alienation as not binding on her. Jiwan Singh’s brother Narayan Singh also filed a suit as a reversioner that the gift will not bind him. Both the suits were disposed of together. It was held that the gift would not bind Chinti. On an inter se dispute between Chinti and Narain Singh, it was held that the custom existing in Punjab preferred the daughter to the collateral of the deceased and upheld the claim of Chinti as a nearer reversioner.
4. Two appeals had been filed before the Division Bench of the High Court of Judicature of Lahore and the Division Bench held through a judgment dated 28.11.1934 that the trial Court judgment was correct that revealed a well established custom amongst Jats of Jalandhar district that a daughter excluded a nearer male collateral in succession to the self-acquired property of her father.
III. Basis of the plaintiffs claim as pleaded
5. In the present suit instituted during the life time of Chand Kaur by the children of Chinti in assertion of the right declared in the suit filed by their mother, the defence was entered by the children of Gurbansi. Their contention was that the plaintiffs had no right in the property during the life time of Chand Kaur. In any case, Chand Kaur had become the full owner of the property under the Hindu Succession Act and she could alienate the property in any manner she pleased. Chand Kaur filed an independent written statement pleading enlargement of estate under the Hindu Succession Act, as she was in possession at the time of coming into force of the Act. The trial Court framed several issues and decreed the suit for half share on the basis of amended pleadings that the plaintiffs were staking a claim only to a half share referable to the the branch represented through the first wife Bholi and the remaining half share belonged to the other branch Chand Kaur and for their descendants. The appellate Court reversed the decision and held that the appeal was bound to succeed on a short ground that the plaintiffs had failed to connect the land in suit with the land comprised in the decree that had been passed in the suit filed by their mother. I find the appellate Court’s observation to be wholly erroneous, for, there was never a dispute that their mother was filing a suit in relation to some other property. Both parties were only contending the property to have originally belonged to Jiwan Singh and their respective claims to ownership emanated only through the lines of succession drawn through his respective two wives. I will, therefore, discard the finding of the appellate Court and hold that the decree obtained by the plaintiffs’ mother Chinti against Cha
