Jamna Devi & Others v. Prem Chand & Others S

H.R Khanna, C.J:— The question as to whether a mutation order incorporating a compromise between the parties as an instrument for the purpose of sub-section (2) of Section 14 of the Hindu Succession Act, 1956 (30 of 1956) arises for determination in this regular second appeal. As the matter was considered to be of importance, it was referred to Division Bench.

The present appeal was filed by Maksudan defendant who died during the pendency of the appeal and is now represented by his legal representatives. The appeal is directed against the judgment and decree of learned District Judge, Hoshiarpur, reversing on appeal the decision of the trial Court wherby suit for possession of the land in dispute brought by Kanshi Ram and Hira Ram plaintiffs had been dismissed. As a result of the appeal a decree for possession of 2/3rd share in the land in dispute has been awarded in favour of the plaintiff-respondents against the defendant-appellant.

One Gobind a Brahmin of village Rakha, Tahsil Dehra, district Kangra, was the owner of the land in dispute and some other land. On the death of Gobind, his widow, Rohgan, succeeded to his property as widow's life estate. Rohgan died in 1912 but before that she is alleged to have made a will of the land in dispute in favour of her daughter Durgan. Mutation No. 1349 was entered with regard to the land held by Rohgan as the widow of Gobind. Durgan claimed in mutation proceedings the entire land on the basis of the will alleged to have been made in her favour by Rohgan. As against that, the collaterals of Gobind denied that any will had been executed by Rohgan in favour of Durgan. There was then a compromise between the parties and it was agreed that land measuring 66 Kanals 5 Marias, which is now in dispute, would be given to Durgan on the condition that she would enjoy the usufruct of the land for her life and that after her death it would vest in the collaterals of Gobind. As regards the remaining land, with which we are not concerned, mutation was agreed to be sanctioned in favour of the collaterals of Gobind. Exhibit P. 8 is the copy of the mutation which was sanctioned on January 15, 1918.

Durgan died on August 5, 1959. Maksudan, who is the cousin of the deceased husband of Durgan, got mutation of the land in dispute sanctioned in his favour on the basis of a will dated November 23, 1958, alleged to have been executed in his favour by Durgan, Kanshi Ram and Hiru Ram, who are the grandsons of Gurmukh brother of Gobind, filed the present suit on November 14, 1961, for possession of the land in dispute on the allegations that the land in dispute was ancestral of Gobind qua the plaintiffs and that Durgan had no right to make a will about the land in favour of Maksudan defendant. Durgan was stated to have a restricted right in the land in dispute in view of the compromise during earlier mutation proceedings. The plaintiffs also denied that Durgan had executed any will in favour of Maksudan.

The suit was resisted by Maksudan who denied that the plaintiffs were collaterals of Gobind and that the land in dispute was ancestral of Gobind qua them. Plea was also taken that under Section 14 of the Hindu Succession Act. Durgan had become absolute owner and could validly bequeath the land in his favour.

Following issues were framed in the case:—

(1) Whether the plaint has been properly valued for purposes of court-fee and jurisdiction ?

(2) Whether the plaintiffs have locus standi to sue ?

(3) Whether the plaintiffs can sue for the whole land in dispute ?

(4) Whether the parties are governed by custom in matters of alienation and succession? If so, what the custom is ?

(5) Whether the plaintiffs are collaterals of Gobind ?

(6) Whether Mst. Durgan had a restricted estate in property in dispute as alleged? If so, what is its effect?

(7) Whether Mst. Durgan executed any valid will in favour of defendants ? If so, what is the effect ?

(8) Whether the plaintiffs are estopped by their act and conduct from filing the suit?

(8-A) Whether the property in dispute is ancestral qua the plaintiffs ?

(9) Relief ?

The trial Court decided issues 1, 2, 5, 8 and 8-A in favour of the plaintiffs and against the defendant. On issue No. 3 the finding of the trial Court was that the plaintiffs could sue for only 2/3rd share of the land in dispute because other collaterals, who could claim the remaining 1/3rd share of the land, had not joined as plaintiffs. On issue No. 4 the finding was that the parties were governed by custom in matters of alienation and succession, and that according to that custom the collaterals were entitled to ancestral property in preference to the daughter while the daughter was entitled to the non-ancestral property in preference to the collaterals. Issues 6 and 7 were decided in favour of the defendant. As a result of findings on issues 6 and 7, the plaintiffs' suit was dismissed.

On appeal the learned District Judge held that the provisions of sub-section (2) of Section 14 of the Hindu Succession Act applied because Durgan had acquired land in dispute as a result of the compromise in the course of mutation proceedings. It was further held that mutation was an instrument for the purpose of the aforesaid sub-section. According to the learned District Judge, as Dugan had not acquire full proprietary rights in the land under sub-section (1) of Section 14 of the above-mentioned Act she had no authority to make a will of the land in dispute. In the result the appeal filed by the plaintiffs was accepted and a decree for possession of 2/3rd share in the land in dispute was awarded in their favour against the defendant.

In second appeal Mr. Malhotra, on behalf of the defendant-appellant has argued that mutation order, copy of which is Exhibit P. 8, cannot be held to be an instrument for the purpose of sub-section (2) of Section 14 of the Hindu Succession Act. The section reads as under :—

“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 sub-section, ‘property’ includes both movable and immovable property acquired by a female Hindu by inheritance or device, 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 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 sub-section (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.”

The stand taken by Mr. Malhotra has been controverted by Mr. Sud on behalf of the respondents. According to him a mutation order incorporating a compromise answers to the description of the word “instrument”. We have given the matter our earnest consideration and are of the view that the stand taken on behalf of the respondents is well-founded. The word “instrument” has been defined in Wharton's Law Lexicon, 14th Edition, as a formal legal writing—e.g, a record, charter, deed or transfer, or agreement. A definition though not exhaustive is given of the word “instrument” in Section 2(14) of the Indian Stamp Act as under:—

“(14) ‘instrument’ includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded :”

The word “document” has been defined in Section 3(18) of the General Clauses Act, 1897 (10 of 1897) as under:

“(18) ‘document’ shall include any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose of recording that matter :”

The above definition of the word “document” is of a very comprehensive nature and according to it a document would include every matter written, expressed or described upon any substance by means of letters, figures or marks which may be used for recording that matter. The definitions of the words “instrument” and “document” would go to show that the two are not synonymous. Although every instrument is a document, a document need not necessarily be an instrument. It is only a document which affects a right or liability or is a record of that which would constitute an instrument. According to the Law Laxicon of British India by P. Ramanatha Iyer, 1940 Edition, “the word ‘instrument’ in a legal sense, is defined to be a writing as the means of giving formal expression to some act; a writing expressive of some act, contract, process, or proceeding, as a deed, contract, writ, etc.” Keeping the connotation of the word “instrument” as given above in view, we are of the opinion that a mutation order incorporating a compromise between the parties would constitute instrument. It cannot be disputed that a document recording a compromise or settlement of dispute about property between the parties would constitute an instrument. If that be so, we fail to understand as to why it should make a difference in case the compromise is incorporated in a record of mutation proceedings. The mutation order recording a compromise between the parties and directing entries in revenue papers in accordance with that, in our opinion would answer as much to the description of an instrument as any other document recording a compromise. Whatever might be the position of mutation orders not incorporating a compromise, we have no doubt in our mind that a mutation order embodying the terms of compromise between the parties is an instrument. The compromise in the present case affected the rights of the parties. As a result of the compromise, some land was given to the collaterols of Gobind while the other land was given to Durgan on the condition that she would enjoy the usufruct of the land for her life and that after her death it would vest in the collaterals of Gobind. As the mutation order incorporated the compromise which created certain rights in favour of some parties and limited the rights which were vested in the other parties, the said mutation order would, in our opinion, answer to the description of the word “instrument.”

Mr. Malhotra has referred to the decision of Andlay, J. in Shila Devi v. Wazir Chand, R.S.A No. 37 of 68 decided on December 19, 1968 (1) wherein the learned Judge expressed the opinion that a mutation entry was not an instrument as contemplated by sub-section (2) of Section 14 of the Act. Perusal of that judgment goes to show that the mutation order in that case did not incorporate any compromise between the parties. As such the appellants in our view, cannot derive much assistance from that judgment.

Reference has also been made by Mr. Malhotra to the case of Thakur Nirman Singh and others v. Thakur Lal Rudra Partab Narain Singh and others, AIR 1926 Privy Council 100(2), wherein it was held that the proceedings for the mutation of names are not judicial proceedings in which the title to and the proprietary rights in immovable property are determined. The aforesaid case also did not deal with a mutation order incorporating a compromise and as such the dictum laid down in that case would not be applicable to the present case. Another case, on which reliance has been placed on behalf of the appellant, is a Full Bench decision of Kalawati v. Sri Krishna and others, AIR (31) 1944 Oudh 493. The learned Judges in that case dealt with the question as to whether an order of the mutation Court embodying the petition of compromise affecting immovable property worth more than Rs. 100 required registration. It was held that since the order of the mutation Court merely stated the fact of the compromise having been arrived at between the parties and did not cause a change of legal relations to the property nor declare any right in that property, it did not require registration. It would appear from the above that the question involved in that case was substantially different and as such the above case cannot be of any material assistance.

We would, therefore, hold that the mutation order in question, which incorporated the compromise between the parties, is an instrument as contemplated by sub-section (2) of Section 14 of the Hindu Succession Act. The case shall now go back to the learned Single Judge for disposal of the appeal.

A.N.K Case remanded.