REPORTABLE        IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 226 OF 2010

AJIT KAUR @ SURJIT KAUR ….Appellant(s)

VERSUS

DARSHAN SINGH(DEAD) THROUGH LRS.& ORS. ..Respondent(s)

J U D G M E N T

Rastogi, J.

1. This is the  defendant’s  appeal  by special leave  against the

judgment of the High Court of Punjab and Haryana at Chandigarh

dated 28th July, 2004 and arises in the following circumstances.

2. Original plaintiffs, Darshan Singh son of Bhana, and Amriti

and  Udhi alias Iqbal  Kaur, daughters of  Bhana filed a suit for

possession of the subject land in dispute.   It was claimed by the

plaintiffs that  Bhana,  son of  Moti  was the  original  owner of the

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subject properties in dispute.  The plaintiffs along with one Gurdev

Kaur were the children of aforesaid Bhana from his first wife Bhago

and after the death of his wife(Bhago), Bhana was remarried to Smt.

Banti but because of strained relations of Bhana and Smt. Banti,

they started living separately.  There was even a litigation between

them.   Bhana and Smt. Banti had a daughter, namely, Ajit

Kaur(appellant) from the aforesaid wedlock.   To settle the dispute

between them, Bhana parted the suit land to Smt. Banti by way of

gift for her maintenance way back in the year 1950.  In furtherance

thereof, mutation was also entered in favour of Smt. Banti bearing

no.  3813 sanctioned on 25th  February,  1950.  The aforesaid gift

came to be challenged by the original plaintiff Darshan Singh in a

Civil Suit No. 103/1953 for declaration under the customary law.  It

was claimed by him that the aforesaid gift by late Bhana in favour

of Smt. Banti qua the ancestral property would not affect the

reversionary rights of Darshan Singh(original plaintiff).   The

aforesaid civil suit filed at the instance of  Darshan Singh  was

decreed by the learned trial Court vide judgment dated 30th June,

1954 and it was held that the aforesaid gift by late Bhana in favour

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of Smt. Banti would not affect the reversionary rights of Darshan

Singh and would operate only during the life time of Bhana.   The

Civil Appeal No. 101/1954 preferred by Banti against the aforesaid

judgment and decree was dismissed by learned District Judge vide

judgment dated 29th  November, 1954 and the Regular Second

Appeal No. 193/1955 filed at her instance(Smt. Banti) came to be

dismissed by the High Court on 3rd November, 1959.  It was claimed

that Smt. Banti was to continue to have the rights in the property

only during the life time of Bhana and was not an absolute owner.

Since Bhana died on 27th March, 1973 and prior to his death, he

had executed a registered will dated 5th January, 1973 whereby he

bequeathed  his  estate in favour  of  plaintiffs  Darshan Singh and

others by excluding Smt. Banti and Smt. Ajit Kaur, original

(defendant no. 1) and (defendant no. 25) appellant herein and other

daughter Gurdev Kaur.  In reference to the aforesaid will dated 5th

January, 1973, Civil Suit No. 15/1975 was filed by the plaintiff for

possession.  The appellant contested the suit and it was claimed by

her that Banti was the absolute owner of the suit property.   She

even denied the earlier litigation between the parties whereby

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reversionary rights of Darshan Singh came to be upheld.   The will

as claimed by the plaintiffs dated 5th  January, 1973  was also

contested.

3. On the other hand, the appellant in separate litigation between

the parties reached upto the Regular Second Appeal no. 933/1984

and  the  validity  of the  will  dated 5th  January,  1973 came  to  be

upheld by the High Court vide judgment dated 28th July, 2004 and

the Special  Leave Petition(Civil)  no.  24724/2004 preferred at the

instance  of the  appellant  came  to  be  dismissed  as  not  pressed.

According to the will dated 5th January, 1973, the original plaintiffs

became entitled to claim the property of Bhana(deceased) including

the land in dispute to the exclusion of the present appellant.  It was

stated in the  will dated  5th  January,  1973  that  Smt.  Banti  was

residing separately for almost 20 years and questioned her

character having illegitimate relations with Maal Singh, son of Nihal

Singh, r/o Bada Pind and despite that, the testator has taken care

of her maintenance.   The will dated 5th January, 1973 came to be

executed in supersession of the earlier will dated 11th  April, 1956

and for the aforesaid reason, it was stated by the testator that the

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entire property after  his death be devolved to his daughter Smt.

Amriti, Udi alias Iqbal Kaur and son Darshan Singh in three equal

shares.

4. The trial Court in the instant proceedings held that the suit

land had been allotted in lieu of the original land during the

consolidation proceedings.  Both the wills  set up by the plaintiffs

dated 5th  January, 1973 and the defendants dated 21st  February,

1973  were  held to  be executed  by  Bhana.   Learned trial  Court

further recorded a finding that Banti had become absolute owner of

the suit property after the commencement of the Hindu Succession

Act, 1956 (hereinafter being referred to as “Act 1956) and, therefore,

the plaintiffs could not take any benefit of the earlier decree and

accordingly dismissed the suit filed by the plaintiffs.

5. On reappraisal of the evidence on record, the appellate Court

reversed the findings of the trial Court with regard to Banti having

become absolute owner of the suit property on the basis of an oral

gift executed by Bhana in the year 1950 and the gift came to be set

aside and held that Smt. Banti could not be held to be the absolute

owner of the suit property even after the commencement of the Act,

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1956 inasmuch as her title to the suit property was to operate only

during the life time of Bhana who died on 27th March, 1973.   The

judgment of the  Court of appeal came to be challenged at the

instance of the appellant(defendant) and second appeal before the

High Court also came to be dismissed under the impugned

judgment dated  28th  July, 2004  which is the subject  matter of

challenge in the instant appeal.

6. Mr. J.M. Khanna, learned counsel for the appellant submits

that once this fact is admitted by the parties that Smt. Banti was

the  widow  of  Bhana  whose  property is in  dispute and  as such

formed coparcenary and was entitled to 1/3rd  share after the

enforcement of the Act, 1956 and the learned appellate Court has

erred in relying upon a will dated 5th January, 1973 without taking

note of a subsequent will executed by the testator dated 21st

February, 1973 and the finding which has been recorded by the

first appellate Court in reference to a later will dated 21st February,

1973 is perverse and no adverse inference could be drawn and it

needs to be reviewed by this Court.

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7. Learned counsel further submits that the progeny of Bhana

was consisting of one son and three daughters from the first wife

since  deceased  and  another  daughter  alongwith  widow  from  the

second marriage.   If plainly the succession stood opened after the

enforcement of Act, 1956 then even one son and three daughters

from first wife would get 2/3rd of the property and widow and one

daughter i.e. from second marriage would get 1/3rd property.  So far

as the finding in reference to the will dated 5th  January, 1973 is

concerned, it was never proved or produced before the trial Court

and could not be agitated at a belated stage.   

8. Learned counsel submits that the first appellate Court as well

as the  High  Court in second appeal has  misconstrued the law

applicable to the coparcenary property and right of the female to

succeed would be defeated by execution of a Sham sale deed and

the same had to be questioned during the life time of the deceased

Bhana and the limitation is only three years.   Since the right to

succeed to deceased Bhana arose only after his demise in the year

1973 and the suit for possession could be filed within 12 years of

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the same especially when the appellant was in possession of a part

of the land left by the deceased.

9. Learned counsel submits that the validity of the will dated 5th

January, 1973 executed by Bhana could not be effecting the right of

the successor after the enforcement of the Hindu Succession Act, as

Bhana had gifted the property to the appellant and the will could

not operate  qua  that  property  even  if it is  assumed  to be valid.

The  property  gifted  or  otherwise  given to the  separated  wife i.e.

Banti before the enforcement of the Act, 1956 for maintenance of

the separated wife now widow would hold the absolute right over

the property after the Act, 1956 has come into force.

10. Learned counsel further submits that no will could be

executed by Bhana regarding the aforesaid ancestral property to his

progeny since the subject property was in possession of Banti, in

view of maintenance and irrespective of the nature of

document/statement made by Bhana, the property would become

absolute  property  of  Banti  on  enforcement  of  Act,  1956 on  17th

June, 1956.  The reversionary rights of the respondents’/plaintiffs’

declaration suit do not become effective when the succession

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opened after the enforcement of the Hindu Succession Act and the

decree is only to be effective if the reversionary rights existed when

the succession opened on the death of Bhana the Karta and co­

parcener.   The property  does  not revert to the co­parcenary or

Hindu joint family or to Bhana as Karta and after the enforcement

of Act, 1956, the succession is to be governed by the provisions of

Hindu Succession Act  and  if the reversionary  who  have  got the

decree and he is not the successor in accordance with the Hindu

Succession Act or Hindu Law, he cannot get the benefit under the

reversionary declaratory decree.   Whatever the customs earlier

existing, if any, stands abrogated in view of the mandate of Section

4 and Section 30 of the Act, 1956 which is applicable to all and no

customary law overrides the Hindu Succession Law.

11. Per contra, Ms. S. Janani, learned counsel for the

respondents,  while supporting the findings recorded  by the first

appellate Court and confirmed by the High Court in appeal submits

that the subject land in dispute was mutated in the name of Smt.

Banti on the basis of the oral gift and the suit which was filed by

the respondents for  mutation  would  not  bind their reversionary

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rights on the suit land and that has been held by all the courts that

the alleged oral gift has not been proved and being the concurrent

finding of fact, needs no further indulgence.   Learned counsel

further submits that if the respondents cannot rely upon the said

decree to seek possession of the land yet the findings in the suit

proceedings would bind the parties.   It was never the case of the

appellant that the suit land was given to her mother Banti in lieu of

the maintenance.   On the contrary, it was pleaded that such land

was given to her in lieu of service rendered and the subject land

which was given to her mother Banti  in lieu of maintenance has

been specifically mentioned in the will dated 5th  January, 1973 of

late Bhana.   In the aforesaid will, late Bhana(testator) also

mentioned that Smt. Banti was living in adultery and separate from

him for more than 20 years and merely being in possession of the

suit land will not make her an absolute owner of the property on

coming in effect of the Act, 1956 and bare reading of Section 14(1)

makes it clear that in order to avail the benefit of the mandate of

law, the women must come in possession of the land under one of

the devise mentioned therein.

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12. Learned counsel further submits that in the earlier

proceedings, the appellant  had conceded that the  will dated  5th

January, 1973 was validly executed and in RSA No. 933/1984, the

validity of the will dated 5th January, 1973 has been upheld and the

present appellant preferred appeal by special leave against the said

judgment which came to be dismissed as withdrawn by this Court

vide order dated 7th April, 2006 and the finding was recorded that

will dated 21st  February, 1973 has not been legally executed and

proved.  In the given circumstances, the appellant has no legitimate

right to claim possession by way of succession under the Act, 1956

and no error was committed in restoration of reversionary rights of

the respondents under the impugned judgment.

13. The concurrent finding of fact has been recorded by the High

Court in the regular second appeal in separate proceedings initiated

in reference to will dated 5th January, 1973 in RSA No. 933/1984

decided on 28th July, 2004 held to be validly executed and based

on  the  recital  of the  will, it  was held that the  plaintiffs  became

entitled to succeed to the entire property of Bhana (deceased)

including the land in dispute to the exclusion of

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defendant(appellant herein).   It  may be relevant to note  that the

finding of fact recorded under the impugned judgment in reference

to a later will dated 21st February, 1973 on which much emphasis

was laid by the present appellant, it was observed that the

propounder of the will was legally required not only to prove the due

execution of the will but also to dispel all suspicious circumstances

which may have existed in its due execution of the aforesaid will

and it was observed that the later will dated 21st  February, 1973

claimed by the present appellant cannot be taken to be duly proved

and being a finding of fact duly supported by the  material on

record, we find no perversity or manifest error in the finding to be

reviewed by this Court in the instant appeal.

14. It is a settled position of law that the mutation of a property in

the revenue records are fiscal proceedings and does not create or

extinguish title nor has it any presumptive value on title.   It only

enables the person in whose favour mutation has been ordered, to

pay the land revenue.  At the same time, the effect of a declaratory

decree to restore the property alienated to the estate of the alienor

and until  and unless the alienees are able to convince the court

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that they have no subsisting interest in the property, the heirs of

the alienees would be entitled to the benefits of the property as per

the law of succession.   The effect of the operation of the aforesaid

declaratory decree would be to restore the land in dispute to the

aforesaid estate of Bhana(deceased) and the succession would be

deemed to have opened on 27th March, 1973 when Bhana died.  On

his death, the estate left behind him including the land in dispute

would devolve upon his heirs as per their entitlement and after the

registered will dated 5th January, 1973 has been upheld by the High

Court in RSA No. 933/1984 decided on 28th  July, 2004 and

attained finality, its consequence was to follow accordingly.   

15. The submission of learned counsel for the appellant that the

appellant being in possession of the subject property in question at

the time when Act, 1956 came into force and by virtue of Section

14(1) of the Act became an absolute owner of the subject property

and the decree being a nullity is inexecutable and it is a

jurisdictional error against the policy of legislature, is without

substance for the reason that Section 14(1) of the Act, 1956 clearly

envisage that the possession of the widow, however, must be under

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some vestige of a claim, right or title or under any of the devise

which  has  been  purported  under the law.   Indisputedly, in the

instant case,  the appellant was not holding any valid possession

over the subject property and as already observed, opening of fiscal

proceedings would not confer a right of acquisition by either of the

devise which has been referred to under the explanation to Section

14(1) of the Act, 1956.  Section 14 of the Act, 1956 is as under:­

“14.  Property of a female  Hindu to  be  her  absolute property ­­ (1)  Any  property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation.— In this sub­section,  ‘property’  includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance,  or  by gift from any person,  whether  a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as  stridhana immediately before the commencement of this Act.

(2)  Nothing contained in sub­section(1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift,  will  or  other instrument  or the decree,  order or award prescribe a restricted estate in such property.”

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16. The effect of Section 14, after the Act, 1956 came to be

examined by a three Judge Bench of this Court in  Eramma  Vs.

Veerupana and Others AIR 1996 SC 1879 as under:­

“6.  It  was next contended by the appellant that she was admittedly in possession of half the properties of her husband Eran Gowda after he died in 1341­F and by virtue of Section 14 of the Hindu Succession Act she became the full owner of the properties and Respondents 1 and 2 cannot, therefore, proceed with the execution case. We are unable to accept this argument as correct. At the time of Eran  Gowda's death the Hindu Women's Right to Property Act, 1937 (Act 18 of 1937) had not come into force. It is admitted by Mr. Sinha that the Act was extended to Hyderabad State with effect from February 7, 1953. It is manifest that at the time of promulgation of Hindu Succession Act, 1956 the appellant had no  manner of title to properties of Eran Gowda. Section 14(1) of the Hindu Succession Act states:

“14. (1)  Any  property  possessed  by  a female  Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation.— In this sub­section,  ‘property’  includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance,  or  by gift from any person,  whether  a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as  stridhana immediately before the commencement of this Act.”

7.  It is true that  the appellant  was  in possession of Eran  Gowda's properties but that fact alone is not sufficient  to attract the operation of  Section 14.  The

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property possessed by a female Hindu, as contemplated in the section, is clearly property to which she  has acquired some  kind of title  whether before or after the commencement of the Act. It may be noticed that the Explanation to Section 14(1) sets out the various modes of acquisition of the property by a female  Hindu  and  indicates that the section  applies only to property to which the female Hindu has acquired some kind of title, however restricted the nature of her interest may be. The words “as full owner thereof and not as a limited owner” as given in the last portion of sub­section (1) of Section 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. In  other  words,  Section  14(1) of the  Act contemplates that a Hindu female who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of this section. The object  of the section  is to extinguish the estate called limited estate or “widow's estate” in Hindu law and to make a Hindu woman, who under the old law  would have been only a limited owner, a full owner of the property with all powers of disposition  and  to  make the  estate  heritable  by  her own heirs and not  revertible  to  the heirs of the  last male holder. The Explanation to sub­section (1) of Section  14  defines the  word “property” as including “both movable and immovable property acquired by a female Hindu by inheritance or devise …”. Sub­section (2) of Section 14 also refers to acquisition of property. It is true that the Explanation has not given any exhaustive connotation of the word “property” but the word “acquired” used in the Explanation and also in sub­section (2) of Section 14 clearly indicates that the object of the section is to make a Hindu female a full owner of the property which she has already acquired or which she acquires after the enforcement of the Act. It  does  not in  any  way  confer  a title  on the female Hindu where she did not in fact possess any vestige of title. It follows,  therefore, that  the section cannot be interpreted so as to validate the illegal possession of female Hindu and it does not confer any title on a mere trespasser.  In other  words, the  provision of Section 14(1) of the Act cannot be attracted in the case of a

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Hindu female who is in possession of the property of the last male holder on the date of the commencement of the Act when she is only a trespasser without any right to property.

(emphasis supplied)

17. It was further considered by a three­Judge Bench of this Court

in  V.  Tulasamma and Others  Vs.  Sesha Reddy(Dead)  by LRs

1977(3) SCC 99 and interpretation of Section 14(1) and (2) of the

Act, 1956 has been summarized as under:­

62.  We would now like to summarise the legal conclusions which we have reached after an exhaustive considerations of the authorities mentioned above on the question of law involved in this appeal as to the interpretation of  Sections 14(1)  and (2)  of the Act  of 1956. These conclusions may be stated thus:

“(1) The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu law and  has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained  therefrom. If  a charge is created for the maintenance of a female, the said right becomes a legally enforceable  one.  At  any rate, even  without  a charge the claim for maintenance is doubtless a pre­ existing right so that any transfer declaring or recognising such a right does not confer any new title

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but merely endorses or confirms the pre­existing rights.

(2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio­economic ends sought to be achieved by this long needed legislation.

(3) Sub­section (2) of Section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of Section 14(1)  materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by Section 14(1) or in a way so as to become totally inconsistent with the main provision.

(4) Sub­section (2) of Section 14 applies to instruments, decrees, awards, gifts, etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre­existing rights. In such cases a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in this sphere.  Where, however, an instrument  merely declares or recognises a pre­existing right, such as a claim to maintenance or partition or share to which the female  is  entitled, the sub­section has absolutely no application and the female's limited interest would automatically be enlarged into an absolute one by force of Section 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of  maintenance or a share at partition, the instrument is taken out of the ambit of sub­section (2) and would be governed by Section 14(1)  despite any restrictions placed on the powers of the transferee.

(5) The use of express terms like ‘property acquired by a female Hindu at a partition’, ‘or in lieu of maintenance’,  ‘or arrears of maintenance’, etc. in the Explanation to Section 14(1) clearly makes sub­section

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(2) inapplicable to these  categories  which have  been expressly  excepted  from the operation of  sub­section (2).

(6) The words ‘possessed by’ used by the Legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner  is not in actual  or  physical  possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property.   It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section  does  not contemplate the  possession of any rank trespasser without any right or title.

(7)  That the words  ‘restricted estate’  used  in Section 14(2)  are wider than  limited  interest  as  indicated  in Section 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee.”

(emphasis supplied)

18. In  Eramma Vs. Veerupana and Others  (supra), the widow

was in possession of the half of the property of her late husband

and claimed her absolute ownership by virtue of Section 14 of the

Act, 1956 which was negated by this Court for the reason that the

widow  was  not  holding possession over the subject property in

question under any of  the devise  indicated  in the explanation to

Section 14(1) of the Act, 1956.   

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19. Wherein V. Tulasamma and Others Vs. Sesha Reddy(Dead)

by LRs, it  was an admitted case before the  Court that the  suit

property came in possession of the widow under a compromise in

execution of decree of the Court, restricting her right of alienation in

recognition of right to maintenance, having pre­existing right over

the subject property in question on the date the Act, 1956 came

into force(i.e.  17th  June, 1956).  In that reference, the claim was

considered by this Court and held that the pre­existing right of the

widow on the date of the commencement of the Act, 1956 will get

her the absolute rights over the subject property.

20. In the instant case, the appellant although was holding

possession but not under any of the devise referred to under

explanation to Section 14(1) of the Act, 1956 and mere possession

would not confer pre­existing right of possession over the subject

property to claim full ownership rights after the Act, 1956 came into

force by operation of law and this what was considered and negated

by the High Court in the impugned judgment.

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21. Consequently, the appeal fails and is accordingly dismissed.

No costs.

22. Pending application(s), if any, stand disposed of.

…………………………….J. (A.M. KHANWILKAR)

…………………………….J. (AJAY RASTOGI)

NEW DELHI April 04, 2019

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