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Sumer Chand v. Ram Kishan And Others
Structured Summary of the Opinion — A.L. Bahri, J.
Factual and Procedural Background
This appeal was filed by the defendant against the judgment and decree of the Additional District Judge, Kurukshetra dated 16 December 1986. The lower appellate court had partly decreed the plaintiffs' suit in respect of the "tabela" (granting a decree for possession) but dismissed the suit insofar as the shop was concerned. The trial court had earlier dismissed the entire suit.
The plaintiffs in the suit were Ram Kishan Kaura, Harcharan Dass and Tejinder Kumar Kaura as members of a joint Hindu family carrying on as M/s Harcharan Dass and brothers. The family pedigree in the opinion states that Shiv Dass had two sons, Amar Nath and Baij Nath. Amar Nath died in 1918 leaving his widow Paramjot and a daughter Krishna Devi; there was no partition of the joint family property. In 1958 a family settlement (Panchayat) is said to have allowed Paramjot to receive the rent of the shop and to reside in the tabela. In October 1958 Paramjot purportedly gifted the shop and tabela to her daughter Krishna Devi. Paramjot died on 6 May 1972. Smt. Krishna Devi sold the shop and tabela to Sumer Chand on 21 June 1973.
There was prior litigation concerning rent recovery from a tenant; in one of those cases Sumer Chand was impleaded and the gift and sale were held valid, a finding that was affirmed by the High Court. Against the appellate dismissal R.S.A. No. 1418 of 1987 filed by Ram Kishan Kaura and others was dismissed in limine by D.V. Sehgal, J. in April 1987, and a Special Leave Petition was stated to be pending in the Supreme Court at the time of this opinion.
In the present suit the plaintiffs sought declarations that the gift deed (31-10-1958) and the sale deed (23-6-1973) were illegal, and claimed possession of both the shop and the tabela. They also alleged the gift and sale were effected in connivance with certain defendants and sought damages. The trial proceeded on a set of issues framed in the trial court (issues 1–14 are listed in the opinion). The trial court held that principles of res judicata applied and dismissed the suit. The lower appellate court modified that result and decreed the suit as regards the tabela.
Legal Issues Presented
- Whether the principle of res judicata (preclusive effect of earlier litigation) barred the plaintiffs' suit in respect of the disputed shop and/or the tabela.
- Whether, under Section 14(1) of the Hindu Succession Act, a female (here Paramjot) who acquired or possessed property after the commencement of the Act could be treated as full owner when she was not in possession on the date the Act came into force (i.e., whether possession on commencement is a prerequisite).
- Whether the plaintiffs' suit was barred by the law of limitation — in particular the application of Article 58 (three years for declarations) and Article 65 (twelve years for possession by adverse possession) of the Limitation Act.
- Whether the gift and sale affecting the shop and the tabela should be treated and adjudicated upon as a single combined transaction (i.e., whether they must be held valid or invalid as a whole), as argued by counsel for the parties.
Arguments of the Parties
Appellant's Arguments
- Challenged the lower appellate court's findings and asked for the shop-related finding to be reviewed and the gift and sale qua the shop to be declared bad.
- Relied on Order 41 Rule 33 of the Code of Civil Procedure as a basis for relief (argued by respondent Ram Kishan in person as well, but the court declined the relief in the circumstances of an earlier dismissed appeal and pending SLP).
- Argued the plaintiffs' case should have been brought within three years from the date of gift or sale (relying on Article 58 of the Limitation Act).
- Contended that the gift and sale of shop and tabela should be held legal or illegal as a whole (this contention was advanced by counsel for appellant and also by respondent No. 1 according to the opinion).
- Contended that Paramjot's acquisition was, in substance, a devise in lieu of maintenance and thus should confer full ownership under Section 14(1) of the Hindu Succession Act despite non-possession on the date of commencement.
Respondent's Arguments (as recorded)
- Respondent Ram Kishan (appearing in person) urged the court to review the finding on the shop and to pronounce that gift and sale qua the shop were bad; he also invoked Order 41 Rule 33 of CPC.
- Respondent (and counsel appearing for respondent No. 1) argued that the gift and the sale should be held legal or illegal in entirety (i.e., that shop and tabela should be treated together), a contention the court considered but rejected for the present state of proceedings.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Daya Singh v. Dhart Kaur, 1974 I S.C.C. 700 | Held that if a widow (or female) was not in possession of the property on the date the Hindu Succession Act came into force, she did not become a full owner under Section 14(1) and subsequent transfers could be held invalid. | The court relied on this authority to conclude that Paramjot could not be held to have become full owner of the tabela by virtue of the 1958 arrangement when she was not in possession on the date the Hindu Succession Act came into force; therefore the subsequent gift and sale could not be upheld on that basis. |
Court's Reasoning and Analysis
The court's analysis proceeded by addressing the principal legal points raised on appeal in the context of the trial record and prior proceedings.
Res judicata: The trial court had concluded that res judicata applied and that findings in earlier litigation regarding validity of the gift and sale were binding on the parties, resulting in dismissal of the suit. The lower appellate court found res judicata to be applicable "qua the shop and qua the tabela" and modified the trial court's decree so as to decree the suit in respect of the tabela. The present appeal, filed by the defendant, challenged that result. The opinion records those prior conclusions and resolves the appeal without disturbing the lower appellate court's decretal position as to the tabela.
Section 14(1) of the Hindu Succession Act: The court identified Section 14(1) as central to the dispute over ownership of the tabela. It quoted Section 14(1) including the Explanation and explained that the subsection operates in two parts: (a) the female must have been in possession of the property on the day the Hindu Succession Act came into force to be treated as full owner under the first part; and (b) property acquired thereafter in various modes is addressed in the second part. The court accepted the principle (as laid down by the Supreme Court in Daya Singh v. Dhart Kaur) that if the female was not in possession on the commencement date she cannot be treated as a full owner by virtue of later transactions. Applying that principle to the facts before it, the court held that Paramjot could not be treated as owner of the tabela (and hence could not validly gift it to Krishna Devi and Krishna Devi could not validly sell it to Sumer Chand) on the ground relied upon by the plaintiffs that she acquired the property in 1958 in lieu of maintenance.
Whether shop and tabela must be treated as one transaction: The court noted the contention urged by counsel that the gift and sale should be held valid or invalid as a whole. The court rejected that contention for the present state of proceedings, observing that the plaintiffs' case had already failed qua the shop in earlier proceedings which were under challenge before the Supreme Court. Therefore, the court held it was necessary to decide independently whether the tabela was owned by the appellant or the respondent, rather than treat the two items as inseparable for purposes of the present appeal.
Limitation: The court considered the appellant's contention that the suit was time-barred under Article 58 of the Limitation Act (three years for declarations). The court observed that the present suit was also one for possession on the basis of title and that an owner’s suit for possession is ordinarily within time against trespassers unless adverse possession for twelve years (Article 65) is established. The court relied on a specific finding recorded by the lower appellate court (issue No. 6) that defendant Sumer Chand entered possession of the tabela and shop in April 1981 — a finding that was not challenged on this appeal. Given that factual finding, the suit brought on 5 June 1985 was held to be within time; therefore the limitation objection was rejected.
Order 41 Rule 33 CPC: The court addressed the invocation of Order 41 Rule 33 by Ram Kishan (in person) but declined to grant relief under that provision in the peculiar circumstances where an appeal filed by Ram Kishan Kaura and others had already been dismissed (R.S.A. No. 1418 of 1987 was dismissed in limine) and a Special Leave Petition was pending in the Supreme Court. The court indicated that if the plaintiffs succeeded before the Supreme Court they would obtain appropriate relief there, but no relief under Order 41 Rule 33 could be granted by this court in the present circumstances.
In sum, the court applied the two-part structure of Section 14(1), relied on authoritative precedent (Daya Singh) for the proposition that possession on commencement is material to full ownership under that section, accepted the unchallenged factual finding on date of actual possession by Sumer Chand for limitation purposes, and declined to disturb the lower appellate outcome regarding the tabela.
Holding and Implications
APPEAL DISMISSED. For the reasons recorded in the opinion, the appeal is dismissed with no order as to costs.
Direct consequences for the parties (as recorded in the opinion):
- The dismissal of the appeal means the decision of the lower appellate court (including the decree regarding the tabela) remains undisturbed by this court.
- The court noted that a Special Leave Petition in the Supreme Court against an earlier in limine dismissal of R.S.A. No. 1418 of 1987 was pending; the opinion records that if the plaintiffs succeed there they would obtain appropriate relief, but no such relief was granted by this court.
The opinion does not purport to lay down a new precedent beyond application of established principles (in particular Section 14(1) of the Hindu Succession Act and the Supreme Court authority cited). The decision operates to resolve the present appeal in favor of the respondent and leaves any further remedy dependent on outcomes in the pending Supreme Court proceedings.
R.M.S. — Appeal dismissed.
A.L Bahri, J.:— This appeal is by the defendant filed against the judgment and decree of the Additional District Judge, Kurukshetra, dated December 16, 1986 whereby suit filed by Ram Kishan Kaura and others was partly decreed as regards tabela. Decree for possession was passed. However, the suit was dismissed regarding the shop. The trial Court had, however, dismissed the entire suit.
2. Ram Kishan Kaura plaintiff had also filed R.S.A No. 1418 of 1987 which was dismissed in limine by D.V Sehgal, J. on April, 1987. It is stated that Special Leave Petition is pending in the Supreme Court against the said order.
3. For deciding the controversy arising in this appeal, only relevant facts are being noticed. The suit was brought by Ram Kishan Kaura, Harcharan Dass and his son Tejinder Kumar Kaura as members of the Hindhu Joint family known as M/s Harcharan Dass and brothers. The relationship between the parties can only be appreciated from the following pedigree table. Shiv Dass had two sons. Amar Nath and Baij Nath. Ram Kishan, Harcharan Dass, Vidya Rani and Prem Sagar are the sons of Baij Nath Amar Nath died in 1918 during the life time of Shiv Dass who died in 1935. Amar Nath left behind his widow Paramjot and a daughter Krishan Devi. There was no partition of the Joint Hindu family property. It was in 1958 that some settlement was arrived at whereby Smt. Paramjot was allowed to recover rent of the shop and to stay in the tabela. Subsequently, in October 1958. Smt. Paramjot gifted the shop and the tabela to her daughter Krishna Devi. Paramjot died on May 6, 1972 Smt. Krishna Devi sold the shop and the tabela to Sumer Chand on June 21, 1973.
4. There was a tenant in the shop aforementioned who was earlier paying rent to Baij Nath. Some litigation was with the tenant on behalf of Harcharan Dass and thereafter by Ram Kishan for the recovery of the rent. In one of the litigations Sumer Chand was also impleaded as a party and in that case it was decided that gift deed and the sale deed aforesaid were valid. This litigation came upto the High Court and the aforesaid findings were affirmed.
5. In the present suit declaration was claimed regarding the illegality of the gift deed and the sale deed as the plaintiffs claim to be owners. They also claimed possession of the shop as well as tabela. The plaintiffs also claimed that gift reed and the sale deed aforesaid were prepared in connivance with the defendants Panna Lal and others and, therefore, they should he made liable to pay damages. The suit was contested by Sumer Chand inter alia alleging that Paramjot was the owner of the property in dispute and gift and the sale deed aforesaid were valid. Other defendants also contested the suit. The trial proceeded on the following issues:—
(1) Whether Paramjot had any transferable title in the impugned property of the Joint Hindu family?
(2) Whether Paramjot was maintained by the joint Hindu family of M/s Baij Nath and Harcharan Dass etc?
(3) Whether the gift deed dated 31-10-1958 is invalid?
(4) Whether the sale deed dated 23-6-1973 is also invalid?
(5) Whether the defendant Nos. 3, 4 and 6 have played the role of conspirators in the conversion of the impugned property?
(6) Whether the defendant Nos. 1 and 5 are tres-passers?
(7) How and when the physical possession of the impugned property was acquired by defendant No. 5?
(8) Whether to plaintiffs are entitled to compensatory costs?
(9) Whether the suit is barred by Section 11 CPC?
(10) Whether the suit is not properly valued for purposes of court fee and jurisdiction?
(11) Whether the plaintiffs are estopped from filing the present suit?
(12) Whether the plaintiffs have waived their right to file the suit?
(13) Whether the suit is maintainable in the present from?
(14) Whether the plaint is liable to be struck off under Order 7 Rule. 16 CPC?
6. The trial Court held that principle of res judicata was attracted and the findings recorded in the previous case regarding validity of the gift and the sale would be binding on the parties. It was primarily on this ground that the suit was dismissed.
7. The lower appellate Court on the question of res judicata held that it was applicable qua the shop and qua the tabela and thus modified the judgment and decree of the trial Court decreeing the suit regarding the tabela.
8. Respondent Ram Kishan, who has appeared in person, and argued the appeal, urged that the finding on the question of shop should be reviewed and this Court should give a finding that the gift and the sale qua the shop was also bad. He has further urged that further finding be also recorded that this gift and sale were made with connivance with other respondents and he referred to the provisions of Order 41, Rule 33 of the Code of Civil Procedure in this respect. I am afraid that in the peculiar circumstances of the case where appeal filed by Ram Kishan Kaura and others has already been dismissed, no relief under Order 41 Rule. 33 of the Code of Civil Procedure can be given to Ram Kishan Kaura and others respondents. The matter is still before the Supreme Court as is argued and if Ram Kishan Kaura and others succeed there, they would get appropriate relief As far as the present appeal is concerned, only two questions debated on behalf of the appellant are being adjudicated upon.
9. Another point can also be noticed. According to the counsel for the appellant as well as respondent No. 1, who has appeared in person, the gift deed and the sale deed should have been held to be legal or illegal as a whole. However, this contention, in the facts and circumstances of this case, cannot be accepted as the case of the plaintiff Ram Kishan Kaura, as stated above, has already failed qua the shop and the matter is pending in the Supreme Court. The contention of the counsel for the appellant in this respect also cannot be accepted. The question has to be independently decided as to whether the tabela in dispute is owned by the appellant or the respondent.
10. Since the question involved relates to interpretation of Section 14 of the Hindu Succession Act. It is necessary to refer the relevant evidence produced in this case. In the plaint itself in para 4(e) the case of the plaintiffs is that it was orally agreed in the meeting that as a provisional family arrangement to ensure domestic peace, Paramjot may receive monthly rent of the impugned shop from the tenant directly or through the karto or any other member of the family as convenient to her and she could reside in the tabela so that she could meet the expenses of her living till death. It is further mentioned that this was done with the intention to facilitate receipt of maintenance of the widow Paramjot. PW-1 Ram Kishan also made statement to the same effect. As per his evidence upto 1957 Paramjot continued living with them. It was in March 1958 that Paramjot visited them in Ismailabad where brotherhood (Panchayat) was collected and she stated that from the recovery of the rent of the house she would maintain herself. However, the Panchayat orally decided that Paramjot would get the rent of the shop and would live in the tabela in her lifetime. PW-3 Ram Pyari widow of Baij Nath also supported this case and stated that the decision was taken in the Panchayat that Paramjot would cook food in the tabela and would continue to get rent of the shop. At this stage, it may be stated that earlier rent of the shop was being collected by Baij Nath and others. The question for consideration is as to whether Paramjot was in possesion of the tabela on June 14, 1956 when the Hindu Succession Act came into force and if not whether getting possession of the shop afterwards she should be held to be owner thereof. Section 14(1) of the Hindu Succession A ct 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 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 such other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.”
11. The contention of the counsel for the appellant is that though Paramjot was not in possession of the tabela on the day the Hindu Succession Act came into force, however, she acquired it in 1958 under the devise as mentioned above, she would be full owner and not a limited owner. It is further in this context that it has been argued that this devise as aforesaid of acquiring the property was in lieu of maintenance. This contention cannot be accepted Section 14(1) referred to above is in two parts. As far as first part is concerned, it is necessary that the female should be in possession of the property on the day the Hindu Succession Act came into force. It is the acquisition of the property which may be before the enforcement of the said Act or thereafter which is in the second part of the Section. If the female was not in possession of the property, the second part will not be attracted. This was so held by the Supreme Court in Daya Singh v. Dhart Kaur . 1974 I S.C.C 700.. In that case the property belonged to Wadhawa Singh, who died in 1933 leaving behind his widow. She gifted the property in favour of her daughter in April 1933. This was challenged by the reversioners successfully. After enforcement of the Hindu Succession Act, the widow again made a gift of the same land and she died in 1963. It was in such premises it was held that since widow was not in possession of the property on the day the Hindu Succession Act came into force, she did not become the full owner and the subsequent gift was, therefore, bad in law. In this viev of the matter, Paramjot cannot be held to be owner of the tabela which was gifted by her to Krishna Devi and subsequently sold by her to Sumer Chand.
12. Learned counsel for the appellant has also argued that the present suit was barred by time Although this question was not raised in the trial Court or in the grounds of appeal, since question of law only was involved, I have heard the respondent on this point. According to the learned counsel for the appellant the suit should have been brought within three years from the date of gift or the sale. Reference has been raids to Article 58 of the Limitation Act. Articles 58 provides limitation of three years for obtaining any declaration when the right first accrues. The present is not only a suit for declaring the gift deed and the sale as invalid, the present is also a suit for possession on the basis of title as the plaintiffs claim to be owners of the property in dispute and that Paramjot was not competent to make the gift of the same. The suit filed by the owner on the basis of the title for possession would always be within time as far as trespassers are concerned unless they establish their adverse possession within 12 years as provided under Article 65 of the Limitation Act. A specific finding was recorded on issue No. 6 by the lower appellate Court that defendant Sumer Chand entered into possession of the tabela as well as the shop in April 1981 which has not been challenged in this appeal. It is held therein that though for some time Paramjot resided in the tabela and it was also let out for few months, the roof of the same fell down and the possession reverted to the Joint Hindu family and it was only in April 1981 that actual possession was taken by Sumer Chand. The suit is, therefore, obviously within time as filed or June 5, 1985. This contention of the counsel for the appellant is repelled.
13. For the reasons recorded above, this appeal is dismissed with no order as to costs.
R.M.S-Appeal dismissed.
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