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PETITIONER: MUNSHI SINGH(DEAD) BY LRS. AND ORS.

       Vs.

RESPONDENT: SMT. SOHAN BAI (DEAD) BY LRS.

DATE OF JUDGMENT13/03/1989

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) SAIKIA, K.N. (J)

CITATION:  1989 AIR 1179            1989 SCR  (1)1012  1989 SCC  (2) 265        JT 1989 (1)   621  1989 SCALE  (1)682

ACT:     Hindu Succession Act--Section 14(1)--Residuary rights of Hindu  widow--What  are--Rights of reversioners  to  get  as heirs of husband-When arises.

HEADNOTE:     One  Hazari Singh died in November 1918  leaving  behind his widow Smt. Mam Kaur and two daughters viz., Smt. Pan Bai and  Smt.  Sohan Bai. The widow  inherited  the  agriculture properties  of her husband. The present appeals have  arisen out  of the two suits filed by the two  daughters  aforesaid claiming their half share in the property. The circumstances that led to the filing of the suits may be stated thus:     Smt. Mam Kaur, the widow, adopted Ranjit Singh grand-son of Sanehi Singh and son of Lakhi Singh (one of the collater- als)  in 1944 and gifted all the lands to him  inherited  by her  from  her husband. Both the adoption as also  the  gift were made orally.     Munshi Singh and his brothers (reversions) filed a  suit challenging  the  validity both of the  adoption  of  Ranjit Singh and the gift of the properties to him.     By  a decree of the Court both the adoption as also  the gift  in favour of Ranjit Singh were declared invalid and  a declaration was granted in respect of the gift so far as  it affected the reversionary rights.     Thereupon on 4th June, 1963, Smt. Mam Kaur sold away the entire   property  to  Ranjit  Singh  &  his  brothers   for Rs.50,000.  Pan Bai, daughter of deceased Hazari  Singh  and Munshi  Singh and others (revisioners) filed suits  claiming pre-emption  rights to purchase the properties in  question. By  a  decree of the Court it was held that Pan  Bai  has  a superior  right to purchase the property. Accordingly  first preference was granted in favour of Smt. Pan Bai to  deposit the sale amount and seek pre-emption failing which her  suit was  to  be dismissed and a later date was given  to  Munshi Singh  and others. Smt. Pan Bai did not deposit  the  amount with  the result Munshi Singh & others deposited the  amount and took possession of the properties and came to be substi- tuted in the sale. 1013     On  the death of Mam Kaur in January, 1965,  Smt.  Sohan

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Bai (her 2nd daughter) filed a suit for a decree for posses- sion  of half of the share on the plea that in view  of  the declaratory  decree  of 24.7.47, on the death  of  Smt.  Mam Kaur,  succession had to be traced to Hazari Singh i.e.  her father. Smt. Pan Bai, also filed a suit for the same relief. The Trial Court decreed the suit filed by Smt. Sohan Bai but dismissed the suit filed by Smt. Pan Bai on the ground  that as  Smt. Pan Bai had flied a suit claiming on the  basis  of pre-emption  earlier,  she was estopped from  disputing  the validity of the sale made by Smt. Mam Kaur.     On  appeal the Additional District Judge maintained  the decree passed in the suit of Smt. Sohan Bai and reversed the trial Court’s Judgment in the suit filed by Smt. Pan Bai and held  that  both the daughters were entitled to  succeed  to half  share each in the property. Against the order  of  the Additional  District  Judge, defendants in  both  the  suits filed  Regular Second Appeals in the High Court  which  were dismissed by the impugned judgment. Hence these appeals.     Before  this  Court it was inter alia contended  by  the appellants  that  ; in an earlier suit the adoption and  the gift  having  been declared invalid, the donee who  was  the adopted son of Ranjit Singh was not left with any rights  in the  properties; on the other hand it was contended  by  the Respondents that no doubt adoption was declared invalid  but so  far as gift was concerned, it was declared invalid in  a suit  for declaration by reversioners to the limited  extent that this gift will not affect the rights of the  reversion- ers  thereby meaning that so far as the life estate of  Smt. Mam Kaur was concerned, it was transferred by the gift  deed but the right of the reversioners to succeed on the death of Smt.  Mam  Kaur was protected as it was declared  that  this gift will not affect the rights of the reversioners. Dismissing the appeals, this Court,     HELD: The gift will not affect the rights of the  rever- sioners  on the death of Smt. Mam Kaur but it could  not  be disputed  that so far as Smt. Mam Kaur during her life  time is concerned, as she had gifted away the property to  Ranjit Singh and delivered possession, she had no rights left  with her. [1020E-F]     What  residuary rights could be thought of were not  the rights of the widow but the right of the reversioners to get as  heirs of her husband on her death and on that  basis  it could not be said that she could be said to be possessed  of any right in the property which she held 1014 as a limited owner on the date the Hindu Succession Act came into force. [1020G-H]     On  the  date on which Smt. Mam Kaur executed  the  sale deed, in fact, she had no title to the property nor she  was in possession thereof. [1022D-E] Jagannathan Pillai v. Kunjithapadam Pillai & Ors., [1987]  2 SCC 572.     Gopal  Singh & Ors. v. Dile Ram (dead) by Lrs.  &  Ors., [1988] 1 SCC 477     Kuldip  Singh & Ors. v. Surain Singh and others,  [1968] PLR 30 referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal Nos.  123124 of 1985.     From  the  Judgment  and Order dated  21.9.1984  of  the Punjab and Haryana High Court in R.S.A. No. 1716 of 1978 and

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R.S.A. No. 1898 of 1978.     Shanti  Bhushan,  Vishnu Mathur, Mrs.  Roxna  Swamy  and Rajinder Singh for the Appellants.     T.A.  Ramachandran  and Ramesh K. Keshwani for  the  Re- spondents. The Judgment of the Court was delivered by     OZA,  J.  These  appeals arise out of  the  judgment  of Punjab  &  Haryana  High Court dated  21.9.1984  in  Regular Second  Appeal Nos. 1716/78 and 1698/78 wherein the  learned Judge  dismissed the two second appeals and  maintained  the judgment  of  the appellate court i.e.  Additional  District Judge granting a decree for half share of the property  each in favour of Smt. Pan Bai and Smt. Sohan Bai, the two daugh- ters of deceased Smt. Mam Kaur.     In order to clearly understand the facts the pedigree of the family would be relevant: 1015 Hari Singh Sanehi Singh   Hazari Singh  -- Smt. Mam Kaur Jawana Singh Lakhi Singh      Smt. Pan Bai       Smt. Sohan Bai Munshi     ’          (Plaintiff in    (Plaintiff in   Singh & Ranjit Singh     suit out of        suit out of five others and6 other sons which RSA No.       which RSA No.(defendants (Defendants 7  1698 of 1978         17 16 of 1978 Nos.1to 6) to 13)           has arisen)        has arisen)     Hazari Singh owned agricultural lands the dimensions and its  identity  is not in dispute before us and  he  died  in November  1918  leaving behind his widow Smt. Mam  Kaur  who inherited  the  property. Hazari Singh had left  behind  two daughters  i.e. Smt. Pan Bai, Plaintiff in the suit  out  of which  second appeal before the High Court was  No.  1698/78 and  Smt. Sohan Bai who was also a plaintiff in suit out  of which second appeal before the High Court was No. 17  16/78. In  1944  it is alleged that Smt. Mam  Kaur  adopted  Ranjit Singh grandson of Sanehi Singh and son of Lakhi Singh.  This Ranjit  Singh had six other brothers and it is alleged  that in  1945  Smt. Mam Kaur gifted all the lands which  she  had inherited from her husband by an oral gift to Ranjit  Singh. As  regards the two events i.e. adoption and gift  there  is some  controversy  in respect of the  respective  dates.  It appears  and it was contended by the counsel for the  appel- lants that adoption was first and gift was only a consequen- tial act to accelerate the succession whereas learned  coun- sel for the respondents contended that gift was first where- as adoption was subsequent. But it is not disputed that  the gift also is nothing more than an oral gift and the same  is about adoption.      Munshi  Singh  and his five brothers filed a  suit  for declaration challenging this gift and adoption made by  Smt. Mam  Kaur in favour of Ranjit Singh. By judgment and  decree dated  24..7.1947 the suit was decreed and it was held  that the  adoption of Ranjit Singh was invalid and the gift  also was  held  ,to be invalid and a declaration was  granted  in respect  of the gift so far as it affected the  reversionary rights.  Against  this judgment Ranjit  Singh  preferred  an appeal but this was also dismissed.      On  4th June, 1963 Smt. Mam Kaur sold away  the  entire lands  to  Ranjit Singh and his brothers for  an  amount  of Rs.50,000. Thereafter 1016 to  claim pre-emption a suit was filed by Smt. Pan  Bai  and the other suit was filed by Munshi Singh and his five broth- ers on the ground that as reversioners they have a  superior right to pre-emption. In these preemption matters ultimately the  Court  held that Smt. Pan Bai had a superior  right  as

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compared to Munshi Singh and his brothers and therefore  and earlier  date was given to Smt. Pan Bai to deposit the  sale amount and seek pre-emption failing which her suit was to be dismissed and a later date was given to Munshi Singh and his brothers to deposit the sale amount and opt for pre-emption. Similar  condition of dismissal of the suit for  failure  of depositing the amount was imposed. So far as Smt. Pan Bai is concerned  she did not deposit the amount and therefore  her suit for pre-emption was dismissed where as Munshi Singh and others deposited the amount and obtained a decree of preemp- tion which was executed and they obtained possession and  in this manner they stood substituted in the sale.     In  January 1965 Smt. Mam Kaur died and Smt.  Sohan  Bai filed a suit bearing No. 403/65 seeking a decree for posses- sion  of half of the share on the plea that in view  of  the declaratory  decree dated 24.7. 1947 which was confirmed  on appeal that on the death of Smt. Mam Kaur succession had  to be  traced to Hazari Singh i.e. Sohan Bai’s father  and  she being  the direct heir of Hazari Singh was entitled to  half share  in the land. It was also pleaded that Smt.  Mam  Kaur had already parted with her widow’s estate by gift deed made by  her in 1945 in favour of Ranjit Singh and therefore  she had  no subsisting title which she could transfer by way  of sale  by  the sale deed dated 4.9.63 and thus by  this  sale deed  as she herself had no title she could not  convey  any title in favour of Ranjit Singh and his brothers. Smt. Sohan Bai’s suit was decreed but on appeal it was remanded. In the mean  time Smt. Pan Bai also filed a similar suit which  was numbered  203/68 to claim possession of the  remaining  half share  on the same ground, as was filed by Smt.  Sohan  Bai. The  two suits were consolidated and the trial court by  its judgment  dated 2nd January, 1973 decreed Smt.  Sohan  Bai’s suit  but  dismissed the suit filed by Smt. Pan Bai  on  the ground that as Smt. Pan Bai had filed a suit claiming on the basis of pre-emption earlier she was estopped from disputing the  validity of sale made by Smt.. Mam Kaur.  Against  this judgment  of  the  trial court losing  parties  filed  their appeals  before  the Additional District Judge  who  by  his judgment  and decree dated 25.9.78 maintained the decree  in the suit of Sohan Bai and reversed the trial court  judgment in the suit of Smt. Pan Bai and held that both the daughters were entitled to succeed to half share each in the property. Against  this  judgment the defendants in Smt.  Sohan  Bai’s case filed a regular second appeal which was No. 1716/78 1017 and  defendants in Smt. Pan Bai’s case filed regular  second appeal  which was No. 1698/78 in the Punjab &  Haryana  High Court.  Both  these second appeals Were disposed of  by  the impugned judgment of the High Court.     Most  of the facts are not in dispute. The main  contro- versy  raised in these appeals is that in the  earlier  suit the  adoption  and gift both were declared as invalid  in  a suit for declaration filed by the reversioners, what will be its  effect?  On  the one hand counsel  for  the  appellants contended that in fact adoption was followed by gift more or less  in the nature of a step to accelerate  the  succession and  when the court declared both to be invalid  it  clearly meant  that the donee who was the adopted son  Ranjit  Singh was  not left with any rights in the properties  whereas  on behalf of the respondents it was contended that adoption  no doubt was declared invalid but so far as gift was  concerned it was declared invalid in a suit for declaration by  rever- sioners to the limited extent that this gift will not affect the  rights of the reversioners thereby meaning that so  far as  the  life estate of Smt. Mam Kaur was concerned  it  was

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transferred  by this gift deed but the right of  the  rever- sioners  to succeed on the death of Smt. Mam Kaur  was  pro- tected as it was declared that this gift will not affect the rights of the reversioners.     A  controversy was also raised as to which  adoption  or gift was first in time and what is its effect?     Learned counsel for the appellants contended that as the adoption  and  gift both were declared  invalid  although  a declaration  was  granted in a suit by reversioners  but  it clearly meant that nothing remained with the so-called donee and  therefore  when Hindu Succession Act  come  into  force because  of Section 14 clause (1) Smt. Mam Kaur  became  the absolute owner and therefore she had a valid right to trans- fer the property by sale. It was also contended that  Ranjit Singh in whose favour the gift was alleged to have been made himself  agreed  to  purchase this  property  alongwith  his brothers; this indicates that he accepted the position  that Smt.  Mam Kaur after coming into force of the Hindu  Succes- sion  Act  had acquired the absolute rights  and  she  could convey  the property by sale. In any event his accepting  to purchase  the  property from Smt. Mam Kaur,  amounts  to  an admission  that there was no right created in his favour  by gift  which was declared invalid and on this  basis  learned counsel for the appellants contended that the appellants are entitled  to  succeed and the High Court was  not  right  in granting  the  decree on the basis of the claim of  the  two daughters  who  claimed  to be the heirs  of  Hazari  Singh. Alternatively it was 1018 also  contended by learned counsel for the  appellants  that even if the gift in favour of Ranjit Singh is accepted it is clear that Smt. Mam Kaur had succeeded to the property as an heir  of her husband and because of Hindu women’s  right  to property Act, 1937 Smt. Mam Kaur had a limited estate. As it is  well-settled that this limited estate in favour of  Smt. Mam  Kaur  had all the rights which an heir  could  have  in immovable property but in the case of female heirs the  only limitation was in respect of alienation and alienation could only  be  of  the rights that she could  alienate  and  that amounts to only life interest. It is also well settled  that the alienaee in this case Ranjit Singh will get the property till  the  life time of Smt. Mam Kaur and it is  also  well- settled that if during the life-time of Smt. Mam Kaur  Hindu Succession Act came into force, as the property in suit  was in  the hands of alienee i.e. Ranjit Singh he will  not  get the  benefit of Section 14(1) and will not become the  abso- lute  owner but on the death of Smt. Mam Kaur  the  property will revert back to the heirs of Smt. Mam Kaur’s husband. It was  also  contended that in spite of the fact that  a  gift creating  a life interest in favour of Ranjit Singh  was  in existence  but Smt. Mam Kaur still had the residuary  rights of  disposing of the property after her death if during  her lifetime the Hindu Succession Act came into force. As in the present  case  it did come into force,  the  limited  rights which  remained  with Smt. Mam Kaur became  full  rights  on coming into force of the Hindu Succession Act and  therefore if  Smt. Mam Kaur transferred by sale the property the  sale would  convey  at least the residuary rights vested  in  her i.e.  the  right of absolute ownership at  most  subject  to possession  of the alienee during her lifetime and  on  this basis  it was contended that the sale made by Smt. Mam  Kaur is  valid and therefore the view taken by the High Court  is not correct.     On  the other hand learned counsel for  the  respondents contended that as the gift was valid the property was trans-

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ferred  in favour of the alienee i.e. Ranjit Singh  although it  was  the life estate but with the Hindu  Succession  Act coming  into force she could not be said to be possessed  of the property as there were no rights in the property  vested in Smt. Mam Kaur and even if the widest meaning is given  to ’possessed of’ still it could not be contended that she  had any rights left with her. Therefore during her lifetime  the alienee alone had the rights in property. The effect if  any of  the  earlier decree was that on her death  the  property will  revert back and in that event it will revert  back  to the  heirs of her husband not to her heirs and in this  view it was contended that the judgment passed by the High  Court is correct. As regards the effect of Smt. Pan Bai’s suit for pre-emption 1019 leading to estoppel also contentions were advanced.     Learned  counsel  for  the appellants on  the  basis  of decisions of this Court in Jagannathan Pillai v. Kunjithapa- dam  Pillai and Ors., [1987] 2 SCC 572 and Gopal  Singh  and Another  v. Dile Ram (dead) by LRs and others, [1988] 1  SCC 417  contended that as the gift at best could be said to  be effective  during  the lifetime of Smt. Mam Kaur she  had  a residuary  right  left in her which she  could  dispose  of. Alternatively it was contended that gift in favour of Ranjit Singh  was declared invalid and therefore she could be  said to  be  possessed  of the property in view  of  language  of Section  14(1)  of  the Hindu Succession Act.  It  was  also contended  that in the sale deed, Ranjit Singh  himself  was one  of the purchasers and the sale deed indicates  that  at the  time of sale Smt. Mam Kaur delivered possession to  the purchasers. On these basis it was contended that it  appears that  Ranjit Singh had given the possession of the  property back to Smt. Mam Kaur before this sale deed was executed.     Learned  counsel for the respondents on the  other  hand contended that the decree declaring the gift bad was only  a declaratory decree in favour of the reversioners that clear- ly meant that so far as reversioners rights on the death  of Smt.  Mam Kaur are concerned they could not be  affected  by gift but it did not mean that Smt. Mam Kaur did not transfer her rights by gift in favour of Ranjit Singh. It was  there- fore contended that in view of decision in Kuldip Singh  and others v. Surain Singh and Others, [1968] P.L.R. 30 which is a  judgment of a Bench .of three Judges of this Court,  Smt. Mam  Kaur  could  not be said to be a  person  possessed  of anything  and  therefore  no benefit could  be  obtained  by Section  14(1) so far as Smt. Mam Kaur is concerned  and  it was therefore contended that the judgment passed by the High Court  could not be assailed. It was also contended that  so far  as  the question of re-conveyance by  Ranjit  Singh  in favour of Smt. Mam Kaur is concerned, the question has  been examined  on the basis of evidence by the two  courts  below and  a  positive finding has been arrived at by  the  courts that  the evidence is not sufficient to come to the  conclu- sion that there was transfer of possession from Ranjit Singh to  Smt. Mam Kaur before the sale deed was executed. It  was also  contended that the two decisions on which reliance  is placed by the learned counsel are clearly distinguishable on facts  as in these two judgments on the date the Hindu  Suc- cession Act came into force, the widow was possessed of  the property  and  therefore it was held that she  acquired  the rights as full owner. 1020     So far as the contention of the learned counsel for  the appellant about the transfer of possession from Ranjit Singh back to Smt. Mam Kaur is concerned the learned courts  below

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have  come to a positive finding of fact that there  was  no transfer of possession in favour of Smt. Mam Kaur before the sale  deed by her was executed and while coming to the  con- clusion  the courts below have considered the effect of  the recital  in the sale deed executed by Smt. Mam Kaur and  the fact  that Ranjit Singh is one of the purchasers and  having gone through the judgments, in our opinion, the  conclusions could not be said to be erroneous and therefore the  conten- tions  of  the learned counsel for the  appellants  on  that ground could not be accepted.     As  regards  the question about the declaration  of  the gift to be invalid, the judgment which granted the decree in favour  of the reversioners clearly indicated that it was  a decree of declaration saying that the gift had no effect  on the  rights of the reversioners. The words in the  operative part of the judgment stated:               "For  the  reasons  aforesaid  the  plaintiffs               succeed and are granted a decree for  declara-               tion that Mst. Mam Kaur did not validly  adopt               Ranjit  defdt.  and  that gift  in  favour  of               Ranjit  defdt. shall not affect the  right  of               the  reversioners after the death or  termina-               tion of the interest in the suit land of  Mst.               Mam Kaur." In  this view of the matter it is therefore clear that  what was held was that the gift will not affect the rights of the reversioners on the death of Smt. Mam Kaur but it could  not be disputed that so far as Smt. Mam Kaur during her lifetime is  concerned as she had gifted away the property to  Ranjit Singh  and delivered possession she had no rights left  with her.     The  contentions advanced by learned counsel in  respect of  residuary  rights  also is of no consequence  as  it  is apparent  that  Smt. Mam Kaur who was enjoying  the  limited estate  before  the Hindu Succession Act  came  into  force, transferred  her rights by gift and if a valid gift  is  ef- fected it could not be contended that there were any residu- ary  rights  left with her. In fact  what  residuary  rights could be thought of were not the rights of the widow but the right of the reversioners to get as heirs of her husband  on her  death and on that basis it could not be said  that  she could  be said to be possessed of any right in the  property which  she  held as a limited owner on the  date  the  Hindu Succession Act came into force. In Jagannathan Pillai’s case the 1021 property  was  re-conveyed in favour of the widow  and  this Court therefore observed:               "The  case  of the widow who  had  temporarily               lost  the right in the property by  virtue  of               the  transfer in favour of the alienee or  the               donee cannot be equated with that of a strang-               er  by forgetting the realities of the  situa-               tion. Surely, the Act was intended to  benefit               her.  And when the widow becomes possessed  of               the  property, having regained precisely  that               interest which she had temporarily lost during               the  duration  of the eclipse,  Section  14(1)               would  come to her rescue which would  not  be               the  matter  in  the case of  a  stranger  who               cannot invoke Section 14( 1)." In Gopal Singh’s case, this Court while examining the facts, clearly stated as under:               "It  is pertinent to note that the  compromise               decree reads as follows:

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             I  allow  the  appeal of  the  appellants  and               modify the judgment of the trial court to  the               extent  that gift deed in respect of the  land               measuring  21-15-17  bighas  comprising  Khata               Khatauni  No.  3/16 to 27 bighas  situated  in               village  Barsu Ballah is hereby  rejected  and               declared ineffective. The aforesaid land along               with the other land shall be divided in  equal               shares after the death of Sheru alias  Bhushe-               hari and Dhari shall himself give due share to               Hari Ram in accordance with the aforementioned               order." The  operative  portion of the compromise decree  which  was quoted by this Court in the judgment clearly indicated  that as  the  gift deed was ineffective in respect of  the  lands mentioned  therein the widow continued to enjoy  the  rights and benefits till the Hindu Succession Act came in force  as it is observed:               "The effect of the aforesaid was that the gift               was ineffective and Smt. Bhushehari  continued               to enjoy the right and benefit she had  during               her limited ownership until 1956".      Under these circumstances therefore these cases do  not help the appellant. It is clear that in view of gift made in favour  of Ranjit Singh,Mam Kaur on the date on which  Hindu Succession Act came into 1022 force,  was not possessed of any fight in the  property  and therefore  she could not get any advantage from  the  coming into force of the Hindu Succession Act. This Court in Kuldip Singh’s case clearly held:               "It  is  clear from the  questions  reproduced               above  that,  on the principles laid  down  by               this  Court  in the case of Mangal  Singh  and               others  (supra)  it  has to  be  held  in  the               present  case  that the  property  in  dispute               cannot be held to be possessed by Smt.  Mehtab               Kaur,  because, after gifting the property  to               Hamam  Singh, and parting with the  possession               of  the  property, she was not left  with  any               fights  at  all under which she  could  regain               possession  in  her own life  time.  The  gift               executed  by  her  was binding  on  her,  even               though  it may not ’have been binding  on  the               reversioners. She could not, therefore,  avoid               the  deed  of gift and could  not  claim  back               possession from Hamam Singh or his  successors               in  interest.  Having thus  completely  parted               with  her fights, she could not be held to  be               possessed  of the property when the  Act  came               into  force  and consequently  she  could  not               become full owner of it."     It  is  clear that on the date on which Smt.  Main  Kaur executed  the  sale deed, in fact she had no  title  to  the property nor she was in possession thereof.     As  regards  the contention about Smt. Pan  Bai  on  the basis of estoppel is concerned it is clear from the language of Section 115 of the Evidence Act that doctrine of estoppel can not be invoked merely because Smt. Pan Bai filed a  suit for pre-emption. Section 115 of the Evidence Act reads thus:               "When one person has, by his declaration,  act               or omission, intentionally caused or permitted               another  person to believe a thing to be  true               and  to act upon such belief, neither  he  nor               his  representative shall be allowed,  in  any

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             suit  or proceeding between himself  and  such               person  or  his representative,  to  deny  the               truth of that thing." In view of this learned counsel did not seriously press  the contention.  Consequently we see no reason to entertain  the appeal.  The appeals are therefore dismissed and the  decree passed by the learned courts below is maintained. In view of the circumstances of the case we pass no orders as to costs. Y.L.                                      Appeals dismissed 1023