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2015 Supreme(P&H) 269
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Surinder Gupta
R.S.A. No. 2260 of 1987 (O&M)
Harbans Kaur
v.
Tej Kaur through L.Rs & Ors.
{Decided on 08/04/2015}
For the Appellant(s):Mr. B.R. Mahajan, Sr. Advocate with Mr. Prateek Mahajan, Advocate.
For the Respondent(s):Mr. Arun Jain, Sr. Advocate with Mr. Abhishek Dhull, Advocate.
Headnote:(A) Hindu Succession Act, 1956, S.14(1)--Absolute Ownership--Pre-existing Right--As per Gift deed ‘J’ daughter of ‘H’ was given limited rights during her life time in the suit land for her maintenance--Therefore, ‘J’ had pre-existing right in the suit property which was held to be ‘self acquired property of ‘H’--Thus claim of plaintiff, on property being collateral of ‘H’ that property was ancestral and was governed by customs prevalent in jats in Punjab is not maintainable--Moreover, according to general custom in the province of Punjab, daughter or daughter’s daughter has better right to succeed non ancestral property than the collateral of the propositus. (Para 13)
(B) Hindu Succession Act, 1956--Ancestral Property--Determination of--In order to prove the ancestral nature of the property sufficient and cogent documentary evidence is required to be produced on record--The fact that a particular property was ancestral in nature cannot be proved by mere admission or by drawing inference. (Para 15)
(C) Hindu Succession Act, 1956--Ancestral Property--Determination of--In absence of evidence on record to prove the suit property to be the ancestral property, it is to be deemed as the self-acquired property--In the matter of self-acquired property, the daughter excludes the collateral. (Para 13)
(D) Customary Law--Succession--According to general custom in the province of Punjab, daughter or daughter’s daughter has better right to succeed non ancestral property than the collateral of the propositus.
Mr. Surinder Gupta, J.: - Kulwant Singh son of Bhagat Singh alias Bhagtu filed suit for possession of land measuring 10 Bigha 5 Biswa bearing Khewat No.262, Khatauni No.456, Khasra No.1375/761, as per jamabandi for the year 1975- 76 situated at village Mahaulikalan, Tehsil Malerkotla. The pedigree table given below will help in understanding the relationship of parties.
Ghulla
|
____________________
| |
Dharam Singh Sahib Singh
| |
Buta Singh Waryam Singh
| |
Mangal Singh Hardit Singh
| (died in 1905)
| |
| Gulabi (died on 9.2.1947)
| |
Bhagat Singh @ Bhagtu Jarnail Kaur
(Died on 13.5.1975) (Died on 26.2.1976)
| |
____________________ Tej Kaur
| | (Defendant No.1)
Kulwant Singh Gurmail Kaur
(Plaintiff died during (Defendant No.3)
pendency of case)
2. The case of plaintiff Kulwant Singh (since deceased, now represented by his legal heirs), in brief, is that the suit property along with other property was owned by Hardit Singh who died in the year 1905 leaving behind his widow Gulabi. After the death of Hardit, Gulabi became limited owner of suit property and other land owned by Hardit Singh during her life time, which would have ultimately devolved upon Bhagat Singh @ Bhagatu as collateral of Hardit Singh.
3. Gulabi gifted the suit land to her daughter Jarnail Kaur vide gift deed dated 29.5.2003 (Samvat). It was specifically mentioned in the gift deed that Jarnail Kaur shall have no right to sell or mortgage the land gifted to her and she will be limited owner of the gifted land during her life time. A mutation No.1348 on the basis of gift deed was sanctioned in favour of Jarnail Kaur. Smt. Gulabi died in the year 1947 and after her death, entire estate left by Hardit Singh (except the suit land) was inherited by Bhagat Singh alias Bhagtu vide mutation No.1361 (Ex.P3). Bhagat Singh alias Bhagtu died on 13.5.1975, leaving behind the plaintiff Kulwant Singh (since deceased) as his legal heir. Jarnail Kaur daughter of Gulabi died on 26.2.1976 and after her death, the suit land had reverted to the legal heirs of Bhagat Singh alias Bhagtu in accordance with the terms of gift deed. However, defendant No.1-Tej Kaur (since deceased now represented by her legal heirs) who was daughter of Jarnail Kaur got the suit land mutated in her name in revenue record. Request of plaintiff-appellant Kulwant Singh to defendant No.1/respondent No.1-Tej Kaur to hand over possession of suit land failed to have any impact, compelling him to file the instant suit.
4. In the written statement, relationship of parties was not disputed. It was, however, denied, that the suit property and other estate owned by Hardit Singh was his ancestral property. Jarnail Kaur daughter of Gulabi had lost her husband and was residing with her mother. It was denied that after the death of Hardit Singh, Gulabi became limited owner of the land owned by her husband Hardit Singh and Bhagat Singh alias Bhagtu was the heir of Hardit Singh and Gulabi. He had taken the benefit of the old age of Gulabi and got the mutation of estate of Hardit Singh (except the suit land), sanctioned in his favour. Gulabi had gifted 10 bigha 5 biswa of land in favour of her daughter Jarnail Kaur. The term of the gift deed that Jarnail Kaur could not sell or mortgage the suit land was illegal, null and void. Jarnail Kaur was entitled to inherit the entire estate of Gulabi but Bhagat Singh alias Bhagtu in connivance with revenue officials got the mutation of that land sanctioned in his favour and Jarnail Kaur being hapless widow was left to fend with 10 bigha 5 biswa of land gifted to her. She had executed a registered Will dated 4.6.1963 regarding her entire estate in favour of her daughter Tej Kaur, on the basis of which mutation dated 26.2.1976 was rightly sanctioned in her favour.
5. Pleadings of the parties led to the framing of issues as follows :-
1. Whether Bhagat Singh @ Bhagtu was the
