Bhagwana v. Mst. Pritam Kaur

Harnam Singh, J.:— In order to appreciate the position of the persons to be mentioned in this judgment, the sub-joined pedigree-table may be seen.

2. In Civil Suit No. 413 of 1947 plaintiffs claimed declaration that the deed of gift, Exhibit D.1, made by Mst. Bhagwani, defendant No. 3, will not bind them on the death of Mst. Bhagwani. Mst. Pritam Kaur and Mst. Narinjan Kaur, defendants Nos. 1 and 2, resisted the suit on pleas which gave rise to the following issues:—

1. Whether the plaintiffs are collaterals of Lal Singh, husband of defendant No. 3? If so, in what degree?

2. Whether the properties in dispute were ancestral in the hands of Lal Singh qua the plaintiffs?

3. If issues Nos. 1 and 2 are decided in favour of the plaintiffs, then was defendant No. 3 competent to make a valid gift of the disputed properties in favour of defendants Nos. 1 and 2?

4. If issue No. 3 fails, then was the gift in the nature of acceleration of succession?

5. If issue No. 4 is established, then can the plaintiffs challenge the gift?

6. If issues Nos. 2 and 4 fail, then are the plaintiffs not entitled to maintain the suit or is the gift binding on them?

7. Relief.

3. In the Court of first instance Mistri Hukam Chand P.W 1, Dalipa P.W 2, Chandu P.W 3, Gur Ditta P.W 4 and Hakam Singh P.W 5 gave evidence on the 8th of April, 1948. On the last mentioned date counsel for the plaintiffs tendered in evidence copies, Exhibits P. 1 to P. 22, and closed the case.

4. On the 8th of April, 1948, Mst. Bhagwani D.W 1, Parma Nand D.W 2, Amar Singh D.W 3 and Mst. Pritam Kaur gave evidence.

5. Mst. Bhagwani gave evidence that in the deed of gift, Exhibit D.1, part of the property inherited by her from Lal Singh was not) included and that she had given that property to defendants Nos. 1 and 2; by deed of gift, Exhibit D.3, made on the 7th of April, 1948. To similar effect is the evidence given by Mst. Pritam Kaur D.W 4. On payment of conditional costs, defendants Nos. 1 and 2 were permitted to give in evidence deed of gift, Exhibit D.3, made on the 7th of April, 1948. In permitting the defendants to give in evidence deed of gift, Exhibit D.3, the Court allowed the plaintiffs to examine evidence in rebuttal. On the 3rd of May, 1948, deed of gift, Exhibit D.3 was given in evidence. On the 3rd of May, 1948 Hakam Singh P.W 5 tendered in evidence copies, Exhibits P. 23 to P. 25. In that evidence there is no rebuttal of the evidence furnished by deeds, Exhibits D.1 and D.3

6. In Civil Suit No. 413 of 1947 the correctness of the pedigree given above was not challenged. That being so, the Court found the plaintiffs to be collaterals of Lal Singh. In deciding that suit the Court found that the properties which were given to defendants Nos. 1 and 2 by deeds, Exhibits D.1 and D.3, were non-ancestral qua the plaintiffs. In the Court of first instance counsel for the defendants admitted that the validity of the deed, Exhibit D.1, could not be supported except on the ground of acceleration of succession. Finding for defendants Nos. 1 and 2 on issue No. 4 the Court upheld the deed of gift, Exhibit D.1 In the result, the Court dismissed the suit leaving the parties to bear their own costs.

7. From the decree passed in Civil Suit No. 413 of 1947 plaintiffs appealed in the Court of the District Judge, Hoshiarpur. In the Court of the District Judge the correctness of the findings given by the Court of first instance on issues Nos. 2 and 4 was challenged. Finding that issues Nos. 2 and 4 were correctly decided by the Court of first instance, the District Judge dismissed the appeal with costs.

8. From the decree passed in appeal plaintiffs have come in further appeal under section 100 of the Code of Civil Procedure.

9. Mr. Som Datta Bahri maintains that the properties given to defendants Nos. 1 and 2 by deeds, Exhibits D.1 and D.3, were ancestral qua the plaintiffs, that the deed. Exhibit D.1, was a sale deed, and that in any case Mst. Bhagwani could not operate her death by installments.

10. From a perusal of the excerpt, Exhibit P. 22, it is plain that in the first settlement the descendants of Karam Singh did not hold the land given to defendants Nos. 1 and 2 in ancestral shares and that persons not connected with the family were owners in that property. Again, Kaifiyat dehi, Exhibit P. 5, shows that in the first settlement the measure of ownership was possession and that at least 14 persons had founded the village. Plainly, the land which was gifted by deed, Exhibits D.1 and D.3, was non-ancestral qua the plaintiffs. In this Court the finding given by the sub-ordinate Courts as regards the non-ancestral character of the bara and the bouse was not disputed. In these circumstances, the finding as regards the non-ancestral character of the property is not open to challenge.

11. Mr. Som Datta Bahri urges that the deed. Exhibit D.1, was a sale-deed. That plea was neither taken in the Court of first instance nor in the Court of first appeal. In the deed, Exhibit D.1, it was said:—

“Mahbub eleham muzahra zaiful umar ki har tareh se khidmatguzari karli hain aur muzhara ke pas hi rehti hain aur khabargiri rakhti hain. Lihaza yih hibanama sandan likh diya.”

12. In Rangaswami Gounden v. Nichiappa Gounden . A.I.R 1918 P.C 196., Lord Dunedin found the alienation made inter alia for services rendered to be valid gift. That being so, I repel the argument raised.

13. Mr. Som Datta Bahri then urges that in deciding the question of acceleration of succession the sub-ordinate Courts were wrong in taking into consideration the deed of gift. Exhibit D.3, made on the 7th of April, 1948.

14. In an earlier part of this judgment I have mentioned the circumstances under which the defendants were permitted to produce deed of gift, Exhibit D.3, made on the 7th of April, 1948. In permitting the defendants to produce the deed of gift, Exhibit D.3, the Court recorded an order allowing the plaintiffs to examine evidence in rebuttal. No evidence in rebuttal was examined. In these circumstances it cannot be sustained that the plaintiff's had no opportunity to meet the defence based on the deed of gift, Exhibit D.3

15. Then it is said that Mst. Bhagwani could not operate her death by installments.

16. In numerous cases it has been said that when a widow brings about a complete effacement of herself by a process consisting of several stages, the acceleration of succession is not open to challenge. For authority on this point Maru v. Hanso . A.I.R 1926 All. 413. may be seen.

17. Mst. Pritam Kaur gave evidence that on the 8th of April, 1948, she had three daughters and one eon. Mst. Bhagwani gave her age to be sixty years on the 8th of April, 1948. From what I have said above, it is plain that the entire estate of Mst. Bhagwani is in possession of her daughters, Mst. Pritam Kaur and Mst. Narinjan Kaur, who happen to be the next reversioners.

18. In Janaki Ammal v. Narayanaswami Aiyer . A.I.R 1916 P.C 117., Lord Shaw observed that Courts should not grant declaration of right which “would appear to be stamped with something in the nature of futility.”

19. Plainly, the sub-ordinate Courts were right in dismissing Civil Suit No. 413 of 1947.

20. For the reasons given above, I dismiss Regular Second Appeal No. 101 of 1949. No orders as to costs in these proceedings.

21. Dulat, J.:— I agree.

22. Appeal dismissed.