Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Regular Second Appeal No. 2 of 1961

Advocates

D.R. Chaudhary
Shri Indar Singh
for Respondent No. 1

Judges

C.B Capoor, J.C

Acts

Section 14, referred to above. Sub-section (2) of Section 14
SECTION 15 HINDU SUCCESSION ACT
SECTION 14 HINDU SUCCESSION ACT
HINDU SUCCESSION ACT 1956
Order 41, Rule 27 of the CPC,

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Smart Summary

Legal Opinion Summary

Factual and Procedural Background

This second appeal was filed by Smts. Sumitra and Kagdu against a judgment and decree of the learned District Judge (Mandi and Chamba districts). The District Judge had allowed an appeal preferred by the respondents against a judgment and decree of the learned Additional Subordinate Judge, Mandi, which had dismissed a suit filed by respondent No. 1.

Key factual points (as stated in the opinion):

Respondent No. 2 (the widow of Panjku) executed a deed of gift dated 7-2-1956 in favour of respondent No. 1 and the appellants in equal shares in respect of certain disputed property.
Respondent No. 1 alleged that Panjku was the last male-holder of the disputed property, that respondent No. 2 had only limited rights and was not competent to make a gift of the full estate, and that the appellants were illegitimate daughters of respondent No. 2. On these grounds she sued for a declaration that the deed of gift was void and ineffective against her reversionary interest and could not enure beyond the lifetime of the donor.
Respondents Nos. 3 to 9 were impleaded as proforma defendants.
The contesting defendants (including respondent No. 2, the appellants and respondent No. 5) contended, among other things, that respondent No. 1 was not Panjku's daughter, that Panjku was not the last male-holder, that the appellants were legitimate, that the gift had been given effect to and that the appellants were in possession; they also relied on Section 14 of the Hindu Succession Act, 1956.
During trial certain concessions were made (respondent No. 1 conceded to be the daughter of Panjku and respondent No. 2; appellants conceded to be illegitimate daughters of respondent No. 2). The trial Court held Panjku was not proved to be the last male-holder and dismissed the suit. On appeal, the District Judge reversed that finding, held that respondent No. 2 had merely limited rights, repelled the appellants' contention under Section 14 of the Hindu Succession Act, and granted the declaratory relief claimed by respondent No. 1. The present matter is a second appeal by the appellants against that decision.

Legal Issues Presented

Whether the Appellate Court correctly admitted additional evidence that had been refused by the trial court, i.e., the proper application of Order 41, Rule 27 of the Civil Procedure Code (CPC) in the circumstances of this case.
Whether, by virtue of Section 14 of the Hindu Succession Act, 1956, the appellants (female donees) had become full owners of the disputed property—in particular, whether possession by female donees (or the fact of their being in possession at the commencement of the Act) converted any limited interest into an absolute ownership right.
Whether the deed of gift executed by a widow with limited rights could be effective to transfer absolute ownership, and whether the next presumptive reversioners could challenge such a gift.

Arguments of the Parties

Respondents' / Plaintiff's Arguments (as presented in the opinion)

Respondent No. 1 asserted that Panjku was the last male-holder and that respondent No. 2 had only limited rights in the disputed property and therefore was not competent to make a gift of the full estate.
Respondent No. 1 sought a declaration that the deed of gift was void and ineffective against her reversionary interest and could not enure beyond the lifetime of the donor.

Contestants' / Appellants' Arguments (as presented in the opinion)

The appellants and other contesting defendants denied the relationship and factual allegations (initially they pleaded that respondent No. 1 was not the daughter of Panjku, and that the appellants were legitimate); they also contended the gift had been given effect to and the appellants were in possession.
The appellants contended that under Section 14 of the Hindu Succession Act, 1956, any property possessed by a female Hindu (whether acquired before or after commencement of the Act) shall be held by her as full owner and not as a limited owner; hence they argued they had become absolute owners because they were Hindu females in possession at the commencement of the Act.
The appellants challenged the trial Court's refusal to admit certain additional evidence (certified copies of public documents) and relied on precedents in support of admission of such evidence (though the Court found those precedents were not on point for clause (a) of Order 41, Rule 27 CPC).
It was lastly contended by the appellants that possession of the donated property was not transferred by respondent No. 2 to the donees and therefore respondent No. 2 should be held to have been in possession and thereby to have acquired full ownership under Section 14; the Court noted this contention conflicted with their written-statement where they claimed to have entered into possession pursuant to the deed of gift.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State Of U.P v. Manbodhan Lal Srivastava, AIR 1957 SC 912	Cited by the appellants in support of admission of additional evidence at the appellate stage.	The Court held this case fell under clause (b) of Order 41, Rule 27 CPC (Appellate Court requiring evidence) and was not applicable to the present case which fell under clause (a). Thus it was not followed for admitting the evidence here.
Jit Ram v. Chaudhari, AIR 1953 Bilaspur 17	Cited by the appellants as authority on admission of evidence before appellate courts.	The Court observed this case also fell under clause (b) and therefore was not applicable to the facts of the instant case.
Mohammad Akbar Khan v. Mt. Motai, AIR 1948 PC 36	Cited by the appellants concerning production of additional evidence before an appellate court.	The Court held this precedent likewise fell under clause (b) and was not applicable to the matter before it.
Gummalapura Taggina Matada Kotturuswami v. Setra Veerawa, AIR 1959 SC 577	Cited in support of the proposition that a deed of gift by a limited owner (e.g., a widow) could be challenged by next presumptive reversioners; i.e., that limited owners did not necessarily acquire absolute rights.	The Court listed this case among a preponderance of judicial authority supporting the proposition that limited-owner gifts can be challenged and do not automatically vest absolute ownership in donees under Section 14.
Harakh Singh v. Kailash Singh, AIR 1958 Pat 581 (Full Bench)	Cited as judicial authority consistent with the proposition that limited-owner gifts are challengeable and do not automatically mature into absolute ownership under Section 14.	The Court relied on this decision as part of the supporting judicial authority for its legal position on limited ownership and the effect of Section 14.
Tulsi Ahir v. Mt. Soni, AIR 1962 Pat 296	Cited among authorities addressing the effect of post-Act rights and the capacity of limited owners.	The Court included this case in the list of precedents supporting its conclusion that the appellants did not acquire absolute ownership merely by reason of being female donees or by possession at commencement of the Act.
Gangadhar Charan Naga Goswami v. Sm. Saraswati Bewa, AIR 1962 Orissa 190	Cited as supporting authority for the proposition that certain gifts by limited owners are challengeable and do not become absolute ownership under the Act.	The decision was cited by the Court as part of the preponderant judicial authority underpinning its view.
Devi Singh v. Mt. Phulma, AIR 1961 Him Pra 10	Cited as authority considered by this Court on the subject of reversioners' rights and effect of the Hindu Succession Act.	The Court referred to this decision (and noted that it had considered and not followed certain views expressed in other cases), and included it among authorities supporting the proposition against automatic conversion into absolute ownership.
Amar Singh v. Sewa Ram, AIR 1960 Punj 530 (Full Bench)	Cited among authorities dealing with the effect of gifts by limited owners and the scope of Section 14.	The Court indicated that the alternative views in Smt. Chawli v. Hansa did not find favour with the majority of Judges in this Full Bench authority (Amar Singh), and relied upon it as part of the supporting judicial trend.
Smt. Chawli v. Hansa, AIR 1960 Punj 404	Relied upon by the appellants to support the contention that a deed of gift by a limited owner is unlawful and that the donor should be deemed to be in possession, with consequent application of Section 14.	The Court described the observations in this case as more in the nature of obiter dicta and noted that the alternative view expressed there did not find favour with the majority in the Full Bench decision in Amar Singh (AIR 1960 Punj 530).
Hanuman Prasad v. Indrawati, AIR 1958 All 304	Held (in that case) that reversioners had disappeared by virtue of Section 15 of the Hindu Succession Act and that after the Act nobody could get a decree as a reversioner even if alienation by a Hindu widow could previously be challenged.	The Court noted this decision, observed that it had been considered by this Court in another case (AIR 1961 Him Pra 10) and, for reasons given therein, the view in the Allahabad case was not followed by this Court.

Court's Reasoning and Analysis

The Court's analysis proceeded in two main strands: (A) admissibility of additional evidence under Order 41, Rule 27 CPC; and (B) the legal effect of Section 14 of the Hindu Succession Act on the appellants' claimed rights.

A. Admissibility of Additional Evidence (Order 41, Rule 27 CPC)

The Court set out the relevant text of Order 41, Rule 27, noting two distinct clauses:

Clause (a): where the trial Court has refused to admit evidence which "ought to have been admitted"; and
Clause (b): where the Appellate Court requires further evidence to enable it to pronounce judgment, or for any other substantial cause.

From this, the Court reasoned that the rule divides situations into two kinds—those where the trial court wrongly excluded evidence that should have been admitted (clause (a)), and those where the Appellate Court itself requires evidence (clause (b)). A party does not have a right to file additional evidence at the appellate stage merely because it did not apply at trial, unless the case falls under clause (a) (trial court wrongfully refusing evidence which ought to have been admitted) or the Appellate Court requires it under clause (b).

The Court concluded the instant case fell under clause (a): an application to produce certified copies of public documents was made to the trial Court and rejected; these documents were material to the case and the trial Court in the opinion of the Appellate Court should have exercised its discretion to admit them. The expression "ought to be admitted" was interpreted as meaning they "should be admitted in the exercise of sound discretion"—i.e., when the interests of justice require admission. Consequently, the appellate Court rightly allowed the additional evidence.

The Court rejected the appellants' reliance on State Of U.P v. Manbodhan Lal Srivastava, Jit Ram v. Chaudhari and Mohammad Akbar Khan v. Mt. Motai because those authorities dealt with clause (b) situations and not with refusal by the trial court under clause (a); hence they were inapposite.

B. Effect of Section 14 of the Hindu Succession Act

The Court examined Section 14 (quoted in the opinion), focusing on the phrase "shall be held by her as full owner thereof and not as a limited owner." The Court drew the following conclusions from the statutory language and the facts before it:

The legislative intent of Section 14 is to convert prior limited ownership (i.e., where a female Hindu previously held a property only as a limited owner) into full ownership. It is not a blanket provision meant to give absolute rights in every instance of property merely because a female Hindu possessed it.
A "limited owner" is an owner who lacks full power of disposal over the property; examples under Hindu law include a widow inheriting her husband's separate property or a daughter inheriting her father's property—the widow/daughter had ownership rights but not absolute rights.
In the present case, respondent No. 2 (the widow) had only limited rights in the disputed property and made a gift prior to the commencement of the Hindu Succession Act. Because she did not possess absolute rights and purported to transfer absolute rights which she did not have, the deed of gift could not be treated as effecting an acceleration of succession or conferring absolute ownership on the donees by virtue of Section 14.
The appellants were, on the facts as found, in a position akin to licensees (possessory rights during the donor's life) rather than being "limited owners" whose rights could mature into absolute ownership under Section 14. Sub-section (2) of Section 14 is an exception protecting property acquired by gift or will where the terms prescribe a restricted estate; the Court read the subsection as distinguishing those situations where the donor purported to transfer absolute rights from those in which the donor's own rights were restricted.
The Court also observed that acceptance of the appellants' argument would lead to anomalous results (for example, female donees becoming absolute owners while male donees receiving merely life possession), which the Legislature could not have intended.
Finally, the Court rejected the appellants' contention that respondent No. 2 remained in possession and thereby acquired full ownership under Section 14, noting this contention conflicted with the appellants' written-statement which claimed they had entered into possession under the deed of gift; moreover, the trial record contained no finding that the donor did not part with possession.

Holding and Implications

HOLDING: The appeal is dismissed. The Court affirmed the view that the deed of gift executed by respondent No. 2 did not vest absolute ownership in the appellants under Section 14 of the Hindu Succession Act, and that the Appellate Court properly admitted the additional evidence under Order 41, Rule 27 CPC (clause (a)).

Implications:

The immediate legal consequence is that the appellants did not acquire absolute ownership of the disputed property by virtue of Section 14 of the Hindu Succession Act; their rights were limited and susceptible to being challenged by next presumptive reversioners.
The Appellate Court's admission of certified public documents (additional evidence) was held to be proper because the trial Court had refused evidence which "ought to have been admitted" in the exercise of sound discretion.
The opinion does not state that a novel legal principle or binding new precedent was established; it situates the decision within existing judicial authority and applies statutory interpretation and precedent to the facts. The decision's direct effect is confined to the parties and the property dispute before the Court.

Disposition: Appeal dismissed.

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Smt. Sumitra And Another v. Smt. Maharaju And Others

1. This second appeal by Smts. Sumitra and Kagdu is directed against a judgment and decree of the learned District Judge Mandi and Chamba districts whereby an appeal preferred by the respondents against a judgment and decree of the learned additional Subordinate Judge Mandi dismissing the suit filed by respondent No. 1 was accepted. Respondent No. 1 was the daughter and respondent No. 2 was the widow of Panjku. Respondent No. 2 executed a deed of gift dated 7-2-1956 in favour of respondent No. 1 and the appellants in respect of the property set forth in paragraph 1 of the plaint in equal shares. Respondent No. 1 alleged that her father was the last male-holder of the disputed property and respondent No. 2 had merely limited rights therein and was not competent to make a gift in respect of it, that the appellants were her illegitimate daughters and on the aforesaid allegations she filed the suit for a declaration that the aforesaid deed of gift was void and ineffective against her reversionary interest and could not enure beyond the life time of the donor. Respondents Nos. 3 to 9 were impleaded as proforma defendants.

2. Respondent No. 5 was the husband of appellant No. 2 and he, the appellants and respondent No. 2 contested the suit upon the grounds that respondent No. 1 was not the daughter of Panjku, that Panjku was not the last male-holder of the disputed property, that the appellants were the legitimate offsprings of respondent No. 2, that the gift had been given effect to and the appellants were in possession of the donated property and that respondent No. 1 was not entitled to maintain the suit. It was also pleaded that the appellants had acquired an absolute estate by virtue of the provisions of the Hindu Succession Act, 1956.

3. During the course of argument it was conceded on behalf of the contesting defendants that respondent No. 1 was the daughter of Panjku and respondent No. 2 and that the appellants were the illegitimate daughters of respondent No. 2. On the other disputed questions the learned Court held that Panjku was not proved to be the last male-holder of the disputed property. Aggrieved by the aforesaid decision, respondent No. 1 preferred an appeal. The learned District Judge upset the finding on the question as to whether Panjku was the last male-holder of the disputed property and held that respondent No. 2 had merely limited rights in the said property and repelled the contention advanced on behalf of the appellants that they had acquired absolute interest in the disputed property by virtue of Section 14 of the Hindu Succession Act and granted the declaratory relief prayed for by respondent No. 1.

4. The first question that has been raised on behalf of the appellants is that the learned Court of appeal erred in admitting additional evidence. It appears that an application was filed in the trial Court for permission to produce additional evidence but that application was rejected. The correctness of the aforesaid order was challenged in the Court of appeal and the contention found favour with it and in my opinion rightly.

5. The relevant portion of Order 41, Rule 27 of the CPC, runs as below:

“The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the Appellate Court. But if:

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.”

6. It will have been noticed that the aforesaid rule consists of two parts. The first part embraces a case in which the trial Court has refused to admit evidence which ought to have been admitted and the second part relates to a case in which the Appellate Court requires additional evidence to be produced in order to enable it to come to a decision. Thus, a party to a suit has no right to file additional evidence at the appellate stage if an application was not made by it in the trial Court for being permitted to produce that evidence unless the Appellate Court itself requires such evidence to be produced in order to arrive at a decision of the case. The instant case falls under clause (a). The expression ‘ought to be admitted’ in my opinion means ‘should be admitted in the exercise of sound discretion.’ In other words, if the interest of justice require the admission of additional evidence permission for its admission should be accorded. The documents which the appellants sought to produce in the trial Court were certified copies of public documents and had a material tearing on the case. The learned trial Court would thus have exercised a better discretion in allowing them to be brought on record.

7. The cases cited on behalf of the appellants namely (i) State Of U.P v. Manbodhan Lal Srivastava, (S) AIR 1957 SC 912, (ii) Jit Ram v. Chaudhari, AIR 1953 Bilaspur 17 and (iii) Mohammad Akbar Khan v. Mt. Motai, AIR 1948 PC 36, were cases which fell under clause (b) and not under clause (a), referred to above, and as such are not applicable to the instant case.

8. The second question that arises for decision is as to whether by virtue of Section 14 of the Hindu Succession Act the appellants had become full owners of the disputed property. The precise contention advanced on behalf of the appellants is that as the appellants were Hindu females and were possessed of the disputed property at the time of the coming into force of the Hindu Succession Act they had become absolute owners thereof. The contention is a plausible one but, as will presently appear, it is not sound.

9. Section 14 of the Hindu Succession Act reads as below:

“(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 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 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.”

10. The expression ‘shall be held by her as full owner thereof and not as limited owner’ is significant and means that the property which prior to the coming into force of the aforesaid Act was held by a Hindu female as limited owner will thereafter be held by her as full owner. The learned counsel for the appellants seems to overlook altogether the expression ‘and not as a limited owner’ in putting forward the contention, referred to above. It was not the intention of the Legislature that after the coming into force of the aforesaid Act a Hindu female shall have absolute rights in any and every property possessed by her. The intent of the Legislature was that if a Hindu female possessed any property whether acquired before or after the commencement of the Hindu Succession Act as a limited owner she shall have absolute rights therein after the coming into force of the aforesaid Act. The expression ‘limited owner’ has not been defined in the Hindu Succession Act but its connotation is too wellknown. An essential ingredient of ownership is the power of disposal over the thing owned. A limited owner is an owner who does not enjoy the full power of disposal over the property owned. Thus a person in order to be a limited owner must have ownership rights. Under the Hindu law a widow inheriting the separate property of her husband or a daugher inheriting the property of her father did not have absolute rights of ownership in such property and they were known as limited owners’.

11. Adverting to the facts of the present case one finds that respondent No. 2 had limited rights in the disputed property. She made a gift in favour of the appellants and respondent No. 1 prior to the Coming into force of the Hindu Succession Act. The appellants were not the next presumptive reversioners to the estate of Panjku and the deed of gift in question cannot be held to have accelerated succession. On the assumption that respondent No. 2 had parted with possession she could not be said to be possessed of the aforesaid property at the time that the Act came into force and she could not and did not, therefore, acquire absolute rights therein on the coming into force of the said Act and the next presumptive reversioners had a right to challenge the aforesaid gift and to seek a declaration that it would be void and ineffective as against their interests.

12. In support of the aforesaid proposition of law there is preponderance of judicial authority vide AIR 1959 SC 577 Gummalapura Taggina Matada Kotturuswami v. Setra Veerawa, AIR 1958 Pat 581 (FB), Harakh Singh v. Kailash Singh; AIR 1962 Pat 296 Tulsi Ahir v. Mt. Soni, AIR 1962 Orissa 190 Gangadhar Charan Naga Goswami v. Sm. Saraswati Bewa, AIR 1961 Him Pra 10 Devi Singh v. Mt. Phulma and AIR 1960 Punj 530 (FB), Amar Singh v. Sewa Ram. On behalf of the appellants reliance was placed upon a ruling of the Punjab High Court reported in AIR 1960 Punj 404 Smt. Chawli v. Hansa in support of the contention that a deed of gift executed by a limited owner such as a Hindu widow or mother is unlawful and the donor should be deemed to be in possession of the donated property.

13. In the aforesaid case mother was in possession of property as heir to her son who died issueless without leaving any widow. She made a gift of her property in favour of her daughters. A suit was filed by the reversioners who were collaterals in the fifth degree to challenge the deed of gift it was held that the daughters and sisters were preferable to fifth degree collaterals in respect of ancestral and non-ancestral property and that finding was sufficient for the disposal of the case. In the alternative it was also held that the possession of the donees could not be regarded to be unlawful and it had ripened into full ownership under Section 14 of the Hindu Succession Act. The aforesaid observations were thus more in the nature of obiter dicta. That apart the view on the alternative case did not find favour with the majority of the Judges composing the Full Bench in the case of Amar Singh, AIR 1960 Punj 530 (supra).

14. A Division Bench of the Allahabad High Court had in the case of Hanuman Prasad v. Indrawati, AIR 1958 All 304 held that by virtue of the provisions of Section 15 of the Hindu Succession Act reversioners had completely disappeared and after the passing of that Act nobody could get a decree as reversioner even though the alienation by a Hindu widow be such that it could have been successfully challenged at the instance of the reversioners prior to the enforcement of the said Act. The aforesaid decision was considered by this Court in the case of AIR 1961 Him Pra 10 referred to in the foregoing portion of this judgment and for reasons assigned therein the view expressed in the Allahabad case was, with respect, not followed.

15. The right which the appellants acquired-under the aforesaid deed was to remain in possession of the donated property during the life time of (respondent No. 2. They did not have any right of ownership therein and their rights were akin to those of a licensee. They could not thus be characterized to be ‘limited owners’ of the property and their rights were not capable of maturing into absolute rights by virtue of Section 14, referred to above. Sub-section (2) of Section 14 is the nature of an exception and it excepts from sub-section (1) property acquired by way of gift……… where the terms of the gift…… prescribed a restricted estate in such property and it is clear that the property referred to in sub-section (1) is property which if acquired by gift was such in which the donor had and purported to transfer absolute rights. In the instant case respondent No. 2 did not have absolute rights in the property donated and ex hypothesi she was incompetent to transfer such rights and the appellants cannot be held to have acquired absolute rights therein.

16. If the contention advanced on behalf of the appellants were to be accepted an anomalous position will arise, as will appear from the following illustration:— A gift is made by a Hindu female having limited rights of ownership in favour of strangers some of whom are males and some females prior to the coming into force of the Hindu Succession Act According to the contention advanced on behalf of the appellants the females would acquire absolute rights in the donated property whereas the male donee will have the right to remain in possession during the life time of the donor. The next presumptive reversioner will have a right to challenge the gift so far as it is in favour of the males and not so far as it is in favour of the females and I am prone to think that the Legislature did not intend to bring about such an anomalous position. I am, therefore, unable to accept the contention advanced or behalf of the appellants.

17. It has lastly been contended on behalf of the appellants that possession of the donated property was not transferred by respondent No. 2 to the donees and as such respondent No. 2 should be held to have been in possession of the said property and by virtue of Section 14, referred to above to have become absolute owner thereof. In support of the aforesaid contention reliance has been placed upon an averment in the plaint to the effect that the possession was not transferred in pursuance of the deed of gift A reference to the written-statement filed by the appellants will, however, indicate that they claimed to have entered into possession of the disputed property in pursuance of the deed of gift and in the face of that allegation it is not open to them to put forward the aforesaid contention.

18. Cases in which a finding is recorded by a Court of law that the donor did not part with possession of the donated property, however, stand on a different footing. In the instant case there is no such finding. In conclusion, the appeal fails and is hereby dismissed with costs.

AG/V.S.B

19. Appeal dismissed.

Smt. Sumitra And Another v. Smt. Maharaju And Others

Legal Opinion Summary

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondents' / Plaintiff's Arguments (as presented in the opinion)

Contestants' / Appellants' Arguments (as presented in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

A. Admissibility of Additional Evidence (Order 41, Rule 27 CPC)

B. Effect of Section 14 of the Hindu Succession Act

Holding and Implications

Smt. Sumitra And Another v. Smt. Maharaju And Others

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