J.V Gupta, J.:— This order will dispose of Regular Second Appeal Nos. 580 and 419 of 1980, as both have been filed against the same order.
2. The plaintiff appellant has filed this appeal against the judgment and decree of the Additional District Judge, Jullundur, dated 12th November, 1979, whereby the decree of the trial Court dismissing the plaintiff's suit was maintained.
3. Natha Singh, grand father of the plaintiff Tirath Singh and Harbhajan Singh and Mehnga Singh, defendant, was the owner of the suit land. After his death, the land was mutated in favour of Shmt. Banti widow of Santa Singh (wife of pre-deceased son of Natha Singh). In the year 1942, the plaintiffs filed a suit for poasession of the said land on the ground that Natha Singh had executed a will dated 4th July, 1938, in their favour. The suit was compromised and on the basis of that compromise, 20 Ghumaons of land was given to Shmt. Banti by way of maintenance and she was given restricted estate, inasmuch as she was to keep this 20 Ghumaons of land in her possession till her death and not to alienate the same in any manner. Meanwhile, consolidation of holdings took place in the village and she gifted the land measuring 136 Kanals 10 Mar as to Manmohan Singh and Manjit Singh sons of Puran Singh defendants by means of a gift-deed, dated 27th January, 1976.
4. Thereupon, Tirath Singh and Harbhajan Singh, plaintiff-appellants, filed the present suit out of which these appeals have arisen, for declaration that the gift-deed made in favour of the defendants Nos. 1 and 2 by Shmt. Banti was null and void and was ineffective against their right, as under the compromise and the decree of the Civil Court both dated 20th June, 1942, the land in suit was given to her as a life estate for maintenance on the condition that after her death the property would go to the present plaintiffs. It was also pleaded inter alia, that the gift was not complete and perfect as no possession was ever delivered to the donees which was the sine-quanon of the gift. The suit was contested by defendants: Nos. 1 to 3 i.e the donees and the donor who was alive at the time of the filing of the suit. They denied the plaintiff's allegations and alleged that Shmt. Banti was the absolute owner of the suit land and she validly executed the gift-deed in question in their favour. The said gift-deed is, therefore, valid and binding upon the plaintiffs. It was further alleged that since Shmt. Banti was the absolute owner of the property in dispute, the plaintiffs had no locus-standi to file the suit. On the pleadings of the parties, the trial Court framed the following issues:—
1. Whether the suit is maintainable?
2. Whether deceased Banti had restricted estate without any power of alienation by way of gift of the property in dispute as alleged in the plaint?
3. Whether deceased Banti made a valid gift in favour of defendant Nos. 1 and 2? If so, what is its effect?
5. Issues Nos. 1 and 2 were decided by the trial Court against the plaintiffs and issue No. 3 was decided in favour of the defendants, and, consequently, the plaintiff's suit was dismissed. In appeal, the findings of the trial Court on all the issues have been maintained, and, consequently, the appeal was dismissed. Feeling aggrieved against this concurrent finding of the two Courts below, the plaintiff-appellants have come up in appeal to this Court.
6. The learned counsel for the appellant vehemently contended that Shmt. Banti had a restricted estate without any power of alienation by way of gift of the property in dispute and it has been wrongly held by the Courts below that she had become the full owner thereof by virtue of the provisions of Section 14(1) of the Hindu Succession Act, 196???. According to the learned counsel, the case was not covered by the provisions of Section 14(1), but it would be governed by the provisions of Section 14(2), as the suit property was acquired by Shmt. Banti under a decree prescribing a restricted estate in that property. In support of his contention he has relied upon a Full Bench judgment of this Court, in Jaswant Kaur v. Major Harpal Singh . 1977 79 PLR 523., in which it has been held that a restricted estate created by will, gift, decree, award or any other instrument, prior to the commencement of the Act shall not be enlarged into full ownership under sub-section (1) of Section 14 and that a restricted estate can be created in favour of a female even after coming into a force of the Act.
7. It was next contended that in any case, the gift made by Smt. Banti in favour of defendant Nos. 1 and 2 was not a valid one, as there was no delivery of possesion of the donees at the time of the gift. In support of this contention, he cited Smt. Mukhtiar Kaur v. Smt. Gulab Kaur . 1977 79 PLR 185., in which it was held that delivery of possession can prove the assent of the donor and mere assent in the gift-deed cannot prove the factum of delivery of possession of the gifted property.
8. On the otherhand, the learned counsel for the denfendants vehemently contended that since the suit land was given to Shmt. Banti by way of maintenance to which she was entitled under the law being the daughter-in-law of Natha Singh deceased, and, therefore, any restriction put on her by way of compromise, will cease to have its effect after the commencement of the Hindu Succession Act in view of the provisions of Section 14(1) thereof in support of this contention, he has cited Vad???eboyina Tulasamma v. Ve???de???oyina Sesha Reddi . 1977 3 SCC 99, and Bai Vajia (dead) by Lrs. v. Thakorbhai Chelabhai . 1979 3 SCC 300.
9. I have heard the learned counsel for the parties at great length and I find force in the contentions raised on behalf of the defendant-respondents. After the decision of the Full Bench of this Court in Smt. Jaswant Kaur's case (supra) the matter has been set at rest by the highest Court of the land in its judgment in V. Tulasamma's case (supra) and again reiterated in Vajia's case (supra). It is the common case of the parties that Smt. Banti was the widow of the pre-deceased son of Natha Singh and under the law prevailing at that time she was entitled to maintenance from the estate of her father-in-law. In the compromise-deed itself it is mentioned that the suit land was given to her by way of maintenance. Thus, under the circumstances, it could not be held that she acquired the property for the first time as a grant, without any per-existing right, under the compromise, and the decree of the civil Court. The provisions of sub-section (2) of Section 14 will only be attracted if any property is acquired by way of gift or under will etc., only for the first time without there being any pre-existing right. The matter has been considered at great length by the Supreme Court in V. Tulasamma's case (supra). It has been held therein that:—
“sub-section (1) of Section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including-acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property. Sub section (2) is more in the nature of a proviso or exception to subsection (1). It excepts certain kinds of acquisition of property by a Hindu female from the aperation of sub-section (???) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of woman in Hindu society, it must be construed strictly so as to imi???ge as little as possible on the broad sweep of the a???eliorative provision contained in sub-section (1). It cannot be interpreted in a mannar which would rob sub-section (1) of its efficacy and deprive a Hindu female of the protection sought to be a given to her by sub-section (1).
Sub-section (2) must, therefore, be read in the context of sub-section (1) so as to leave as large a scope for operation as possible to sub-section (1) and so read, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of subsection (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property.”
10. Again, in Vajia's (supra), it has been reiterated that it cannot be said that where a property is given to a widow in lieu of maintenance, it is given to her for the first time and not in lieu of a preexisting right. The claim of maintenance, as also the right to claim property in order to maintain herself, is an inherent right conferred by the Hindu Law and, therefore, any property given to her in lieu of maintenance is merely in recognition of the claim or right which the widow possessed from before. It cannot be said that such a right has been conferred on her for the first time by virtue of the document concerned and before the existence of the document concerned, the widow had no vestige of a claim or right at all. Once it is established that the instrument merely racognised the per existing right, the widow would acquire absolute interest.
11. Thus, in view of these binding precedents, it has been rightly held by the Courts below that Shmt. Banti had become the absolute owner of the property after the commencement of the Hindu Succession Act.
12. As regards the contention that the gift was not complete as there was no delivery of possession to the donees, I do not find any merit therein. Once it is held that Shmt. Banti had become the full owner of the suit land, the plaintiffs have no right to challenge her alienation and as such the suit cannot be held to be maintainable. In any case, the gift-deed has been signed by the donees in token of their acceptance of the delivery of possession. If ???he donor supports that a valid gift was made, then non-delivery of possession if any, becomes immaterial. Section 123 of the Transfer of Property Act, provides that for the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. In the present case, the compliance with that provision has been made and under the circumstances the non-delivery of possession, if any, is of no consequence, particularly when the plaintiffs have no right to challenge the gift itself.
13. For the reasons recorded above, both the appeals fail and are dismissed with costs.
R.M.S
Appeals dismissed.