Lachhman Dass vs Chuhra Mal

Kesho Ram Passey, J.—This appeal by Lachhman Dass dependant is directed against the judgment of the District Judge, Fatehgarh Sahib, dated 31-7-1950, decreeing Chuhra Mal plaintiff''s suit for possession of two shops in Banur. The facts axe tense:

Mt. Parmeshwari, widow of Sansei Mal, who had succeeded co her husbands estate and held it as a limited or widow''s estate executed a Will on 29-5-1975 devising that estate to Chuhra Mal, who is Sansari Mars sister''s son. On 2-3-1980 she executed two deeds of gift, by one of which Ex. PA/ she gave two shops styled as property No. 1 in the plaint to her daughter Mt. Naina Devi and by the other Ex. PB/ Chuhra Mal was made the owner of 9 shops an 4 houses. Mt. Naina Devi died before 1985 survived by two minor daughters Sita Devi and Parkash Wati. On 28-12-1385, Muna Lal, husband of Mt. Naina Devi, in the capacity of being the father and guardian of the minor girls sold these two shops to Lachhman Das, defendant for Rs. 4,500/-. On 2-10-1993 Mt. Parmeshwari mortgaged with possession a shop which was described as property no. 2, to Amar Chand for Rs. 500/-. Mt. Parmeshwari died on 18-12-1995 and the present suit for possession of the three shops mentioned above was instituted by Chuhra Mal on 21-8-2003 in the Court of Sub-Judge, 1st Class, Partial, but as subsequently It was discovered that the value of the subject-matter of the suit, exceeded the pecuniary jurisdiction of the Sub-Judge, the plaint was returned for being presented to the District Judge Fatehgarh Sahib which was done on 28-11-2005. The plaintiff has based his suit for possession on the strength of ills preferential right to succeed to the property of Sansari Mal over that of Seta Devil and Parkash Wati, who are his daughter''s daughters. The gift by Mt. Parmeshwari in favour of Mt. Naina Devi and the mortgage by the former in favour of Amar Chand have been attacked as invalid and unauthorized because they were by a widow who could not dispose of her husband''s property except for necessity which there was none in this case. The property in dispute admittedly came to the hands of Mt, Parmeshwari from Sansari Mal.

The suit was resisted by Lachhman Pass and Amar Chand on various grounds and from the parties'' pleadings ten issues were drawn up. The learned District Judge has had that the impugned gut was void and that me mortgage was vane to the extent of Rs. 200/- only winch amount had been proved by the mortgagee to have been paid to Mt. Parmeshwari for legal necessity. Only Lachhman Das has appealed and Mr. Atma Ram appearing for him has argued that the plaintiff has faded to prove himself to be the sister''s son of Sansei Mal, that he is not a better heir of Sansari Mal than Mt. Sita Devi and Mt. Parkash wati, and that the gift by Mt. Parmeshwari in lavour of her daughter Mt. Naina Devi was tantamount to an acceleration of the latter''s succession and was, therefore, unassailable by any remoter heir. To support the last argument it was stressed by the learned counsel that the gift executed by Mt. Parmeshwari on 2-3-80 in favour of Chuhra Mal was complete in all respects and since that had preceded the gift of property No. 1 to Mt. Naina Devi, the later gift only purported to pass on the property that had been left with Mt. Parmeshwari to the next heir Mt. Naina Devi. The judgment of the learned District Judge is not attacked on any other ground.

(On the question whether the plaintiff was Sansari Mai''s sister''s son his Lordship considered the evidence and concluded:) We have, therefore, no hesitation in endorsing the conclusion of the learned trial Judge that the plaintiff has succeeded in proving himself to be the sister''s son of the husband of Mt. Parmeshwari.

The next question that falls for determination is whether the gift in favour of Mt. Naina Devi amounted to an acceleration of her succession. As has been mentioned above, two deeds of gift, one in favour of Mt. Naina Devi and the other in favour of the plaintiff were executed by Mt. Parmeshwari on 2-3-1980, but there is no evidence that the gift in favour of the latter preceded the one in favour of the former. There is not an iota of evidence on the record to suggest that the donor after making these two gifts had no property left to herself. On the other hand, Ex. PX/1 which was a deed of compromise between Mt. Parmeshwari and Chuhar Mal, makes mention of a piece of land in village Jalalpur having been retained by her for herself exclusively. This document establishes that she had not parted with her entire estate and in the face of that fact it cannot be argued with any force that she bad efface- herself and transferred whatever property she held to her daughter. The gift-deeds, dated 2-3-1980 clearly show that Mt. Naina Devi was given two shops only, whereas the bulk of the property was gifted to Chuhar Mai. The rights and powers of alienation of a Hindu widow over property that has come to her hands from her husband on his death are very much restricted and she can alienate it for necessity only. As she holds the estate as a widow''s estate, she cannot make a gratuitous gift in favour of the nearest reversion or reversionary even, unless the gift embraces her whole Interest in the whole estate. We, therefore, hold that the gift in favour of Mt. Naina Devi was invalid and it cannot affect the plaintiff''s right of inheritance. If the gift to Mt. Naina Devi is ignored as, for reasons given above, it must be, then we would have to determine whether the plaintiff is the next heir to Sansari Mal''s estate or his daughter''s daughters Sita Devi and Parkas Wait. The succession opened on 18-12-1995 when Mt. Parmeshwari passed away and on that date the plaintiff and the above named two girls were the contesting claimants. Except possibly in Bombay and Madras, a daughter''s daughter was not recognized as an heir under Hindu Law and it was for the first time by Act No. II of 1929 (Hindu Law of Inheritance (Amendment) Act, 1929), that a change was made in the order of succession of certain heirs of a Hindu male dying intestate and a daughter''s daughter was recognized as an heir and to have preference over a sister''s son. The provisions of that Act were never enforced in the Partial State and were not in force either when the succession opened or when the suit was instituted. They cannot, therefore, be invoked to sustain the daughter''s daughter''s claim of a preferential right of inheritance over that of the son if the sister of the last male owner.

The gift in favour of Sita Devi and Parkash Wait''s mother being invalid and they themselves being not better entitled to succeed to the property of Sensory Mal, the plaintiff''s claim must, succeed. The appeal is dismissed with costs.

Teja Singh, C.J.

I agree.