Dalip Kaur (D) Thr. Lrs. vs Ram Kishan (D) Thr. Lr.

Dalip Kaur (D) Thr. Lrs. & Ors. ..Appellants Versus Ram Kishan (D) Thr. Lr(s). & Ors. ..Respondents

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

1. This appeal is directed against the judgment dated

22.09.2004 passed by the High Court of Punjab and Haryana at

Chandigarh in Regular Second Appeal No. 551 of 1982.

The appellants herein are the original defendants.

Respondent no.1 in this appeal, namely, Ram Kishan (now dead

and represented through his legal heir) filed a suit for possession

as the owner of the 1/3rd share of the suit property against the

contesting defendant Nos. 1 and 2 (appellants herein). The trial

Court decreed the suit. The first appellate Court reversed the

judgment and decree of the trial Court and dismissed the suit.

The High Court set aside the judgment of the first appellate Court

1 and affirmed the judgment of the trial Court. Consequently, the

suit came to be decreed by the High Court.

2. Brief facts leading to this appeal are as under:

Harnam Singh was the original owner of the property. He

died on 12.11.1934, leaving behind his wife Prem Kaur and three

daughters, namely, Basant Kaur, Dalip Kaur and Raj Kaur. After

the death of Harnam Singh in the year 1934, Prem Kaur

succeeded to the property in question as per the prevailing

custom in the area. She executed a gift deed on 19.09.1951 in

favour of three daughters, namely, Basant Kaur, Dalip Kaur and

Raj Kaur to the extent of 1/3 rd each. Basant Kaur, the first

daughter of Harnam Singh and Prem Kaur expired on

25.03.1975, leaving behind her husband – Ram Kishan s/o Telu.

Basant Kaur had executed a will in favour of her husband – Ram

Kishan. Based on the said will, he filed a suit for possession of

1/3rd share in the property.

It is the case of the defendants that upon the death of their

sister Basant Kaur, the suit property devolved on heirs of her

father Harnam Singh; since they are the only heirs of their father,

they are entitled to the property as reversioners.

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3. There is no dispute with regard to the relationship between

the parties. The only question to be decided in this appeal is, as

to whether the trial Court and the High Court are justified in

concluding that Basant Kaur was entitled to 1/3 rd share in the

property of Prem Kaur, and consequently, as to whether the

plaintiff being the husband of Basant Kaur is entitled to the said

1/3rd share.

4. Indisputably, the suit property was gifted by Prem Kaur by

executing a registered deed in favour of her three daughters,

namely, Basant Kaur (wife of the contesting respondent) and

Dalip Kaur and Raj Kaur (defendant nos. 1 and 2) on 19.09.1951

in equal shares. The possession of the property was also

delivered to them. Mutation no. 1555 was sanctioned on

26.6.1952 in their favour respectively. The gift deed, as well as,

the consequent mutation are not questioned by anybody at any

point of time.

5. The husband of Prem Kaur, viz. Harnam Singh, expired in

the year 1934. The parties are Hindus. The properties are

situated at Punjab. It may be noted at this point that though the

Benaras school of Mitakshara law covers practically the whole of

North India, Punjab is an exception, since here the Mitakshara

3 law has been modified considerably by custom on certain points.

The whole matter is viewed keeping in mind customary Hindu

law prevailing in the state of Punjab during the relevant period of

time.

6 Prem Kaur, being the mother of Basant Kaur, Dalip Kaur

and Raj Kaur, gifted the properties situated at Manauli, tehsil

Kharar in favour of her three daughters. Prem Kaur had a limited

estate in the property. Despite the same, the three daughters did

not object to the alienation. On the contrary, they accepted the

gift and got their names mutated in the revenue records.

7. Learned author Sir Dinshaw Mulla, while commenting in his

book Hindu Law (22nd edition, §191) mentions that a reversioner,

whether male or female, who consents to an alienation (including

by way of gift) by a widow or other limited heir made without legal

necessity, or to an invalid surrender, and transferees from him,

are precluded from disputing the validity of the alienation,

though he may have received no consideration for his consent.

In §192, it is observed by the learned author that where a

widow or other limited heir enters into a family arrangement or a

compromise which involves an alienation of the estate, the

reversioner who has been a party to and has benefitted from the

4 transaction is precluded from questioning the alienation, and so

are his descendants. There is no question in a case of this kind of

a transfer of spes successionis by the reversioner. The

reversioner, being a party to a transaction cannot repudiate it.

This Court in the case of Krisha Behari Lal v. Gulabchand &

Ors., (1971) 1 SCC 837, has held that where a widow entered into

a compromise with a presumptive reversioner and was accepted

as the absolute owner of a portion of the properties, and gave up

her claim in the remaining properties, the presumptive

reversioners who themselves ultimately became the reversioners

were estopped from challenging the transaction. It was held by

the Supreme Court that the settlement could also be considered

as a family arrangement binding on the parties.

8. In the matter on hand, on facts we find that though the

properties were gifted by Prem Kaur in favour of her three

daughters, the said gift by her as a limited owner was treated by

the three daughters, who were the only legal representatives to

their parents, as a surrender of properties by their mother in

their favour. We find that the alienation by way of gift by Prem

Kaur is more in the nature of a family arrangement, inasmuch as

5 she must have intended to avoid any future disputes after her

demise. All the three daughters are beneficiaries of such

arrangement. As mentioned supra, all the three daughters got

their names mutated by Mutation No. 1555 sanctioned on

26.6.1952. The Court leans strongly in favour of family

arrangements/alienations in favour of all legal representatives, to

bring about harmony in the family and to do justice to its various

members and avoid future disputes. We also find that the

alienation by way of gift by the mother in favour of the three

daughters as far back as 1951, under which all daughters were

given equal shares in the property, and by which the mother

relinquished all her rights in favour of the three daughters, was

permissible under the prevailing customary law. Prem Kaur’s

three daughters accepted such agreement with a bona fide

intention. Prem Kaur also did not think of her personal

advantage while settling the properties among her three

daughters equally, bona fide. In this view of the matter, we affirm

the decision of the High Court, which, approving the judgment of

the Trial Court, decreed the suit inasmuch as the late Ram

Kishan, being the plaintiff, was held to be entitled to get

possession as owner of 1/3 of the property.

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9. Hence, the appeal stands dismissed.

…………………………………….J. [N.V. RAMANA]

NEW DELHI; …………………………………….J.

SEPTEMBER 27, 2018. [MOHAN M. SHANTANAGOUDAR]

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