Manphool vs Sampat and others

D.V. Sehgal, J.—This appeal arises out of the judgment and decree dated 30th September, 1976 of the learned Senior Sub-Judge, Sirsa, with enhanced appellate powers, whereby he affirmed the judgment and decree dated 16th August, 1975 of the learned Sub Judge Ist Class, Sirsa, dismissing the suit of Manphool plaintiff-appellant for declaration to the effect that the land measuring 235 Kanals 13 Marlas as described in the heading of the plaint situate in village Subewala Khera, tehsil Sirsa, district Hissar, was owned by him, or in the alternative, was owned by him and his brother Sampat, defendant-respondent No. 1, in equal shares and the revenue entries showing the said land to be owned by Sampat alone were incorrect and for permanent injunction restraining the defendant-respondent not to disturb the possession of the plaintiff appellant on the suit land, or in the alternative for consequential relief for possession of the suit land or any portion of it regarding which the plaintiff appellant was found in possession on the basis of evidence of every description.

To deal with the present appeal, it is necessary to state the facts, in brief Jaswanta alias Jawanta son of Boota had to wives, namely Smt. Dakhan and Smt. Deepan. Jaswanta died in the year 1926. At the time of his death he had no male issue from Smt. Deepan. Only one daughter Smt. Jeewani P.W. 1 was born from the womb of Smt. Deepan, Smt. Dakhan had one son Sampat defendant respondent No. 1. On the death of Jaswanta a mutation in respect of the estate of Jaswanta was entered on 1st October, 1926 in favour of Sampat and Smt. Deepan (as life estate). This mutation was sanctioned on 8the January, 1927 (Ex. D.2). Jaswanta owned land in village Subewala Khera in haryana and in village Bhojasar in Rajasthan. The aforesaid mutation was in respect of he land in village Subewala. A mutation in respect of the land in village Bhojasar in Rajasthan was entered in favour of Sampat on 14th April, 1928 and the same was sanction on 19the June, 1931--certified copies thereof are Exs. D.5 and D.7. This mutation show that Smt. Dakhan appeared in these proceedings in favour of Sampat.

It is worth mentioning that on the death of Smt. Deepan in the year 1943, a mutation in respect of a part of the land, which was held by her as per life estate, was mutated in favour of Sampat on 30th April, 1943. A certified copy of this mutation is Ex. D.3 on the record.

Manphool, the plaintiff-appellant, filed the instant suit on 5th June, 1967 stating that he was the posthumous son of Jaswanta from his widow Smt. Dakhan having been born 5/6 months after the death of Jaswanta. He claimed himself to be the owner of half share of the estate left by Jaswanta on his death 1926. It may also be mentioned here that Sampat defendant-respondent No. 1 alientate the suit land in village Subewala Khera in favour of defendant-respondents Nos. 2 to 4 on 25th January, 1968 during the pendency of the instant suit.

Sampat in his written statement denied that Manphool plaintiff-appellant was the son of Jaswanta. He further averred that after the death of Jaswanta, Smt. Dakhan had entered into Karewa marriage with one Kheta and that Manphool might be the son of Smt. Dakhan from the loins of Kheta. He also pleaded that the suit was barred by time as Manphool plaintiff-appellant was not in possession of the suit land as a co-sharer.

On the basis of the pleadings of the parties, the learned trial Court framed the following issues:--

(1) Whether plaintiff is son of Jaswanta. If so, its effect? OPP

(2) Whether the plaintiff is owner of property in suit as alleged in the plaint? OPP

(3) Whether defendants Nos. 2 to 4 are bona-fide purchasers of the suit land and to what effect? OPD

(4) Whether the suit is within limitation? OPP

(5) Relief.

The learned trial Court held that plaintiff-appellant Manphool was not the son of Jaswanta; that he was not the owner of the property in suit; that defendants Nos. 2 to 4 were not the bona-fide purchasers of the suit land as they had purchased the same during the pendency of the suit and the principle of lispendens was applicable; and that the suit was barred by limitation.

On appeal, the learned Senior Sub Judge, Sirsa, with enhanced appellate powers, reversed the finding of the learned trial Court on issues Nos. (1) and (2) after due appreciation of the evidence on he record came to a firm finding that Manphool plaintiff appellant was the posthumous son of Jaswanta having been born to Smt. Dakhan 5/6 months after the death of Jaswanta. He also affirmed the finding of the learned trial Court on issue No. (3) that the sale in favour of defendant-respondents Nos. 2 to 4 was not protested as the sale took place on 25th January, 1968 more than 6 months after the institution of the suit. The learned lower appellate Court also upheld the finding of the learned trial Court on issue No. (4) that the suit was barred by limitation, and as such dismissed the appeal of Manphool plaintiff-appellant.

So far as he finding of the learned lower appellate Court on issues Nos. (1) and (2) is concerned, the fact that Manphool plaintiff-appellant was the son of Jaswanta is a finding arrived at after a very elaborate discussion of the evidence on the record. I find no reason whatever to disturb this finding of fact recorded by the learned lower appellate Court. Likewise, the concurrent finding of both the Courts below on issue No. (3) that the sale of the suit land in favour of defendant-respondents Nos. 2 to 4 was not protected having taken place during the pendency of the suit also needs no interference. However, I am unable to persuade myself to agree with the finding of the learned Courts below that the suit of Manphool plaintiff-appellant was barred by limitation.

It is not disputed before me that on the death of Jaswanta in 1926, the succession opened and he mutation was entered in favour of Sampat and Smt. Deepan (life estate) on 1st October, 1926 and this mutation was sanctioned on 8th January, 1927 (Ex. D. 2). It is further not in dispute that by then Manphool plaintiff-appellant was not born. On the birth of Manphool after the death of Jaswanta, Manphool was to succeed along with Sampat and Smt. Deepan to the estate of Jaswanta and this succession is to relate back to the date of the death of Jaswanta. The law on the subject is clearly laid down in para 28 of Mull''s ''Hindu Law'' Fifteenth Edition on page 95 as under:--

Inheritance never in abeyance--

(1) On the death of a Hindu, the person who is then his nearest heir becomes entitled at once to the property left by him. The right of succession vests in him immediately on the death of the owner of the property. It cannot under any circumstances remain in abeyance in expectation of the birth of a preferable heir, where such heir was not conceived at the time of the owner''s death.

(2) Where the estate of a Hindu has vested in a person who is his nearest heir at the time of his death, it cannot be divested except either by the birth of a preferable heir such as a son or a daughter, who was conceived at the time of his death, or by adoption in certain cases of a son to the deceased.

Thus, according to Hindu law, as a general principle a person capable of taking undergift or will must either in fact or in contemplation of law be in existence. A son in the embryo on the death of his father is in existence in contemplation of law. The birth of a posthumous son gives him the right to succeed to the estate of his father and such succession ralates back to the date of death of his father. Any other nearest heir at the time of the death of his father, who succeeded to the estate on such death, is divested to the extent the posthumous son is entitled to succeed and the succession of the posthumous son is right from the date of the death of his father

The learned counsel for defendant-respondent No. 1 has, however, placed reliance on Hira v. Buta AIR 1920 Lah, 160, wherein it is laid down that the rights of a son under the Hindu Law in the estate left by his father commence at birth and not before. Therefore, an after-born son divests his mother''s estate as a widow from the moment of his birth and not from the moment from his father''s death. Between the date of the death of her husband and that of the birth of her son, the widow is competent to alienate her husband''s property for necessity. The proposition of law laid down in this authority is not in dispute. The reason is that so long as the posthumous son is not born the widow holds the life estate and for the benefit of the estate and to protect the same if she makes any alienation the same cannot be said to be undone on the birth of the posthumous son on the ground that in the contemplation of law he was in existence and he suceeded to the estate of his father from the date of his father''s death and he was entitled to take the same in deference of the rights acquired prior to his birth. Thus, the judgment of the Lahore High Court in no way displaces the well established principles of Hindu Law. An elaborate discussion in this regard is contained in Srinivas Krishnarao Kanga v. Narayan Devji Kango AIR 1920 Lah, 160.

Once it is concluded that Manphool plaintiff-appellant along with his brother Sampat succeeded to the estate of their father Jaswanta on his death, there can be no dispute for the proposition that Manphool along with Sampat have been the co-sharers of the land in suit Mutation Ex. D.2 having been recorded and sanctioned before the birth of Manphool is of no consequence. Defendant-respondent Sampat has not set up any plea of adverse possession of the suit land or his exclusive ownership on that basis. Otherwise also, it is well settled that mere non-participation in the rent and profits of land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. As laid down by their Lordships of the Supreme Court in Karbalai Begum Vs. Mohd. Sayeed and Another, even if this fact is admitted, then the legal position would be that the co-sharers in possession would become constructive trustees on behalf of the co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustees.

The learned counsel for defendant-respondent No. 1 has urged that the mutations recorded at different times amount to ouster of Manphool plaintiff-appellant from the suit property. I do not feel convinced by this argument. A mutation in the revenue record does not confer any title.

The learned lower appellate Court was wrong in holding that the date of sanction of mutation of succession of Jaswanta in favour of Sampat was the starting point of limitation against the plaintiff-appellant, and since he was a minor a period of limitation was available to him till he attained the age of 21 years. This conclusion is clearly incorrect. Manphool was born after the said mutation and was posthumous son of Jaswanta and his succession relates back to the date of death of Jaswanta. The mutation aforesaid recorded on 1st October, 1926 and sanctioned on 8th January, 1927, is wholly inconsequential and does not affect the rights of Manphool plaintiff appellant The learned lower Appellate Court has observed that the plaintiff-appellant remained a helpless orphan and the period of limitation having expired, no relief could be given to him. I think if the law is properly applied to the facts and circumstances of the instant case, there is no impediment in the way of the plaintiff-appellant getting the relief sought for by him. In this view of the matter, I set aside the finding of the learned Courts below on issue No. (4) and hold that the suit of Manphool plaintiff-appellant was well within limitation.

In consequence, I reverse the judgment and decrees of the learned Courts below and decree the suit of the plaintiff-appellant Manphool and declare him to be the owner of half share of the land in dispute along with his brother Sampat defendant-respondent No. 1, and grant him the consequential relief of possession of half share of the suit land. The plaintiff-appellant shall also get costs throughout.