Ujagar Singh and others vs Gopal Singh and others

Teja Singh, C.J.—In order to be able to appreciate the questions involved in this second appeal it is necessary to give briefly the facts a proved by the documentary evidence produced by the parties and admitted by their Counsel.

The suit property which consists of 253 bighas of cultivable land with the Shamilat appurtenant thereto, originally belonged to Harnam Singh, a Jat of village Ralla. Out of this land Harnam Singh gifted 123 bighas and 12 bighas to his daughter Mt. Biro during his life time. Harnam Singh''s collaterals brought a suit for setting aside the gift on the usual grounds that the land was ancestral and Harnam Singh who was governed by customary law had no power to give it away to his daughter in the presence of his collaterals. The suit was dismissed on the ground that the land had not been proved to be ancestral qua the plaintiffs and the decision of the trial Court was maintained upto the Chief Court which was then the highest appellate authority in Patiala State. It appears that out of the remaining land that was left with Harnam Singh some was mortgaged by him with possession and only a small part of it was in his own possession. After his death, which took place sometime in 1980 Samvat, the land which was in the actual possession of Harnam Singn at the time of his death was taken hold of by his collaterals. On this Mt. Biro brought a suit for possession with respect to that land. She also brought a suit for a declaration in respect of the mortgaged land. In both cases her position was that she was the immediate heir of her father and that the collaterals had no right to succeed to the land. Both these suits were decided in Mt. Biro''s favour and thus she became the owner of the entire-property which at one time belonged to Harnam Singh. In the beginning of Samvat 2001 Mt. Biro gifted to her sons the whole of the cullurable land, that is the land that she had got from her father by means of gift as well as the land that had devolved upon her on his death together with her share in the Shamilat. The mutation of the gift was entered by the Patwari on tine order of the Tahsildar on 25-4-2001 and was ultimately sanctioned on 18-7-2001. The plaintiffs who are Harnam Singh''s collaterals instituted the present suit on 23-4-2004. Their allegations were that the land was ancestral qua them that Mt. Brio possessed only life interest therein and consequently they prayed for a declaration that the gift would not affect their reversionary rights after Mt. Biro''s death. The suit was contested both by Mt. Biro and her sons. They denied the ancestral nature of the land. They also denied that the plaintiffs were Harnam "Singh''s collaterals within the fifth degree and that Mt. Biro''s estate was limited in any way. They urged that the plaintiffs had no right to maintain the action and that the suit was liable to be dismissed. The following issues were framed by the trial Sub Judge :

Is the land in dispute ancestral?

Is the gift in question valid?

Are the plaintiffs not within the fifth degree of the alienor and therefore they are not entitled to sue?

Are Mt. Basant Kaur, Jagir Singh and Mt.Sham Kaur necessary parties to the suit? and

Have the plaintiffs got a cause of action?

The trial Sub-Judge found issues Nos. 3 and 4 against the defendants and the first issue against the plaintiffs. As regards the second and the fifth issues he held that the gift was valid and since the plaintiffs were not near collaterals and their chances of succession were remote they had no locus standi to maintain the suit. On these findings the suit was dismissed with costs. The plaintiffs appealed, and the additional District Judge who heard the appeal framed the following additional issue:

Has Mt. Biro gifted the whole of the property which she got from her father Harnam Singh to her sons Defendants 1?

After having recorded the parties'' evidence on this issue the Additional District Judge found it against the donees. He held that since the gifted land did not cover the entire property that Mt. Biro owned, the gift did not amount to acceleration of succession. As regards the other issues, he did not record any finding on issue No. 1, because he thought that Mt. Biro''s estate being of limited nature her powers of alienation were restricted irrespective of the fact whether the property in her hands was ancestral or not. The second issue he found against the defendants and the last issue he decided in the plaintiffs'' favour, in the result lie set aside the decree of the trial Court and decreed the plaintiffs'' claim.

Before dealing with the various points raised before us I cannot help observing that the judgment recorded by the learned Additional District Judge while disposing of the appeal was not in accordance with the provisions of law. He gave very little facts of the case and practically said nothing about the pleadings of the parties. He merely mentioned the fact that:

Mt. Biro, widow of Harnam Singh, gifted the whole of the land in dispute to her sons.

and

the challenging of the said gift was the subject matter of the suit brought by the plaintiffs appellants.

and then after a few other observations quoted the issues and proceeded to give his decision there on. As regards the circumstances out of which the litigation had arisen and the various points raised by the parties in their pleadings he did not consider it necessary to say anything. All that he said about them is contained in the following observation appearing in his judgment:

The facts of the case have been sufficiently given out in detail in the lower Court''s judgment and need no repetition here.

In my opinion the procedure adopted by the learned Judge was erroneous. It is true that by he very nature of things the judgment of an appellate Court need not be as detailed as that of a trial Court and certain matters which must And place in the judgment of a trial Court need not be repeated by the appellate Court in its judgment, but a perusal of Rule 31 of Order 41, Civil Procedure Code, goes to show that the intention of the framers of the Code was that the judgment of an appellate Court should be self-contained. Among the things and particulars that such a judgment should give, one is "the points for determination." Now, in order that it should be possible to understand and know what the points for determination relate to and why they were raised it appears to me to be absolutely essential that mention should also be made in the judgment of the facts of the case and it is not sufficient merely to state that the facts are given in the" judgment of the trial Court. It must be remembered that the judgments, decrees and orders of a District Judge or for the matter of that of all lower appellate Courts are not final. In some cases, they can be questioned in second appeals and in others they are liable to be revised under the revisional powers of this Court. In the circumstances it is only proper that the judgments recorded by all lower appellate Courts in appeals must not be warning in proper details, so that when the case comes up before the High Court, either on second appeal or on revision, this Court should be in a position to have a full grasp of the facts as well as the points for determination without referring to the judgment of the trial Court.

From what I have said above, it is clear that only half the land in dispute devolved upon Mt. Biro as her fathers heir. The other land was gifted to her by her father and since the suit brought by her father''s collaterals for having the gift set aside was dismissed her estate so far as that land is concerned could not be analogous to that of a widow''s estate. This means that she became complete and full owner of that land and the gift made by her to her sons was not liable to be challenged by her father''s collaterals. It was urged before us that since Mt. Biro was Harnam Singh''s daughter and it was in that capacity that the gift was made to her, in the event of her line becoming extinct the gifted land would revert to her father''s collaterals and for this reason they had the right to sue for declaration that the gift was not legally valid. There is no force in this contention because reversion to the collaterals of a doner can take place only if the gifted property is ancestral qua them. Since in this case it is conceded that the land was not ancestral, the Question of revision does not arise and consequently the plaintiffs who cannot be regarded to possess even a remote chance of succession, have no locus standi to challenge the gift.

As regards the rest of the land the position of the defendants is that since the donees, being the sons of the donor, are her immediate heirs the gift in their favour amounted to acceleration of succession and for this reason the plaintiffs could not have it set aside. Counsel for the plaintiffs challenged this contention on the ground that the property was ancestral and the plaintiffs being collaterals of the fifth degree neither Mt. Biro, daughter of Harnam Singh, nor her sons could succeed to it in preference to them. I find that in the judgment of the Chief Court in the first suit brought by Harnam Singh''s collaterals to set aside the gift in Mt. Biro''s favour it was mentioned that the plaintiffs were collaterals of the eighth or ninth degree. A perusal of the pedigree-table produced in this case, however, makes me think fiat the plaintiffs'' allegation that they are collaterals of the fifth degree is correct. As regards the question whether the plaintiffs right of succession to the property left by Harnam Singh was superior to that of Mt. Biro and her sons it depended upon the nature of the property left by Harnam Singh. If the property was ancestral qua the collaterals they would have succeeded to it, but if it was non ancestral it would have devolved upon Mt. Biro and after her upon her sons. As I mentioned above the Additional District Judge did not give any finding on the point whether the property was ancestral or non-ancestral and in my judgment it was not necessary to do so. The succession to the property left by Harnam Singh opened at the time he died. If the property left by him was ancestral and the plaintiff right to succeed to it was superior to that of Harnam sing''s daughter they should have exercised it then. From the judgments given by the Courts in the litigation that had ensued between them it appears that the plaintiffs did take possession of the unencumbered land of Harnam Singh but the Courts held that there was no substance In their claim and Mt. Biro was entitled to the property in preference to them. I am inclined to think that the decrees passed in Mt. Biro''s favour in those suits debar the plaintiffs from questioning her rights of succession to the property left by Harnam Singh even though the property be assumed to be ancestral. Since, however, this point was not raised by the defendants in the Courts below and it would neither be desirable nor proper to have it agitated before us at this stage, it must be ignored. This much, however, cannot be denied that since Harnam Singh''s death took place more than twelve years ago and the property left by him was first in Mt. Biro''s possession, and is now in the possession of her sons whatever remedies the plaintiffs had to recover that property had become barred by time and Mt. Biro became full owner thereof. This being the case, after Mt. Biro''s death the property must go to her sons and not to the plaintiffs. On the other hand, if the property was non-ancestral no question of its going to the plaintiffs in the presence of Mt. Biro and her sons could arise at all. So in whatever way we look at the matter it is clear that Mt. Biro''s sons are her immediate heirs and not the plaintiffs.

It was then urged by the plaintiffs'' Counsel that even if the donees be regarded as the immediate heirs of Mt. Biro, in order that the gift in their favour may amount to acceleration of succession it should have comprised the whole property that she owned but this was not the case here, because in addition to the land she also owned a house and there was no evidence that the gift comprised the house as well. It appears that this question was raised for the first time in the present form in the Court of the Additional District Judge and because it had not been adverted to either by the parties or by the trial Sub Judge, the Additional District Judge framed the additional issue. The defendants contended that on the same day on which mutation regarding the gift of the land was entered in the revenue papers Mt. Biro executed a document (Exhibit DM) evidencing the gift of the house. They also produced witnesses to prove the document. The learned Judge of the Court below has discussed that evidence and has come to the conclusion that it could not be relied upon. In my opinion this finding of his is correct and I am inclined to agree with him that Exhibit D/l was not a genuine document. If it had been executed on the date that it bears and if it were a fact that the house was also gifted along with the land, there is no reason why it should not have been brought to light in the course of proceedings in the trial Court which went on for a fairly long time. It is significant that one of the alleged attesting witnesses to Exhibit D/l gave evidence In the trial Court and so did Mt. Biro but neither of them said anything about the document or the gift of the house.

The question that we have now to consider is whether the gift by Mt. Biro to her sons can be regarded as acceleration of succession notwithstanding the fact that she did not include therein her house. The principles governing gifts by female owners in favour of their immediate heirs and the conditions that such a gift must satisfy before it can be regarded as an acceleration of succession are now well recognised. It was held by their Lordships of the Privy Council in ''RANGASWAMI v. NACHIAPPA'', 42 Mad 523, that an alienation by a widow of her deceased husband''s estate held by her may be validated if it can be shown to be a surrender of her whole interest in the whole estate in favour of the nearest reversioner or reversioners at the time of the alienation. In such circumstances the question of necessity does not fall to be considered. But the surrender must be a bona fide surrender and not a device to divide the estate with the reversioner. This case was under Hindu Law. but as regards the nature of an estate of a widow or a daughter under Customary Law it stands on the same footing, as that of a widow or a daughter under the Hindu Law. While discussing the right of a widow governed by Customary law to relinquish her estate and thereby to accelerate the succession of her next reversioner to the property left by her husband this is what Mr. Chatterji, J., remarked in ''WAZIR CHAND v. MAKHU'', 17 Pun Re 1902:

It may be taken as settled... that Mt. Bhari was competent to relinquish her widow''s estate, and thereby to accelerate the succession of the plaintiffs to the... property left by Nura, but in my opinion it is essential that she should give up her whole estate and not merely a portion of it. It appears to me that this is the only rational and logical conclusion that can be deduced from the principle of relinquishment. It is the fiction of the intermediate heir being non-existent that gives the reversionary the right to step into succession, just as he would do if the heir had died. But it is necessary for this fiction that the widow should step aside altogether and completely efface herself. She does not by her act clothe the reversioner with her rights at all. She takes herself off the line of heirs and puts an end to those rights. It appears to me to follow necessarily from the above that there cannot be a valid renunciation of a part of the estate which can give rise to a right of succession to the reversioners to that part.

It was held by Tek Chand, J., of the Lahore Hign Court in '' AIR 1933 279 (Lahore) that under Hindu Law as well BE under Customary Law a life tenant holding property can no doubt surrender the estate and accelerate the succession of the next heir, but she can do so only if she completely effaces herself and relinquishes the entire estate to him.

There are numerous other authorities on this point but it is unnecessary to refer to them. A careful survey of them makes me think that before an alienation by a female owner holding a limited estate can be regarded as an acceleration of I succession it should satisfy the following conditions:(1) that it should be a bona fide transaction and not a transaction adopted merely as a device to divide the property with the reversioners; & (2) that it must amount to complete effacement of the female owner. The question whether a transaction in a particular case satisfies these conditions, that is, whether it is a bona fide transaction and amounts to complete effacement on the part of the alienor must be decided on the facts of each particular case. There is no doubt that when the alienation does not cover the whole of the property owned by the female owner and she either reserves a substantial part of it for herself or gives it to someone else it will not amount to complete effacement on her part but if the property not included in the alienation is a very small part of the Whole It will not prevent the transaction from taking effect as complete effacement. It has been held that in case of this bind what must be looked to is the substance of the transaction and the intention with which the alienation is made. Reference in this connection Is invited to Ram Krishna Prodhan Vs. Sm. kousalya Mani Dasi and Others, . In that case the widows of the last male owner executed a deed of surrender in favour of his daughters. It was found that in addition to the property to which the deed of surrender related the widows owned another plot which had not been included in the surrender. The questions before the High Court were whether the widows had any right, title or interest in the plot and whether the fact that the plot had not been included in the surrender affected its validity. The learned Judges of the High Court, after holding that the plot had passed out of the family and the widows had no interest therein made the following observations:

But even if it be supposed that the widows had a subsisting interest in the same at the date of the surrender it was such an insignificant part of the inheritance that it might be disregarded as substantially on the terms of the deed of surrender everything which belonged to Bhagabat was intended to pass.

In Haribhai Nanaji Patil Vs. Narayan Hari Purvant, a widow surrendered her interest in the bulk of the property that she owned to her next reversioner, but kept a small part of it for herself. It was held that this did not affect the validity of the surrender as a whole.

If we apply these principles to the facts of the present case there can be no gainsaying the fact that even though Mt. Biro did not include in the gift the house that she owned, her intention was to efface herself completely. As has already been mentioned she gave away every inch of the land that, she had. In addition she also gave the rights that she possessed in the Shamilat land. The reason why she did not include the house in the gift may be that the donees, i.e., her sons, were living in it and she might have honestly believed that they were already owners of the house for all practical purposes. It is true that she also lived in the house along with her sons but since she has given away every bit of her other property and kept nothing with her, even for her maintenance, it cannot be said that she intended to keep the house for herself. Assuming, however, that she knowingly and deliberately kept back the house in order that she might have a place wherein to pass her remaining life, this does not mean that she did not efface herself completely. In Haribhai Nanaji Patil Vs. Narayan Hari Purvant, mentioned above, it was pointed out by Rangnekar, J., that the doctrine as originally laid down in the earlier Privy Council rulings that the surrender must be the widow''s whole interest in the whole estate had not always been strictly adhered to. He referred to the observations of Wallis, J., in ''SITANNA v. VIRANNA'', 61 Ind App 200, and then remarked as follows:

The principles, therefore, which I gather from these decisions and others referred to in the course of the argument are these: (1) that there must be a complete self-effacement of the surrendering widow with the intention of accelerating the succession of the next apparent heir; (2) that the surrender must be bona fide and must not be a mere cloak the real object of which was to divide the estate between the reversionary heir and the widow; and (3) that it is the substance of the transaction that has to be considered in determining the question whether a conveyance operates as a good surrender or not. It may incidentally be noticed that in the last mentioned case it has been clearly conceded that even if provision for the maintenance of a widow is made by reserving a small portion of the property for that purpose, that provision will not affect the validity of the surrender as a whole.

Accordingly, I am of opinion that the gift by Mt. Biro in favour of her sons who were her immediate reversioners amounted to complete effacement of her interest and therefore took effect as an acceleration of succession, with the result that the plaintiffs had no locus standi to challenge it.

It was also argued, before us that the plaintiffs'' suit was speculative and should have been thrown out for this reason alone. I have already made it clear that Mt. Biro''s sons are her immediate heirs, both with regard to the land that she got from her father by means of the gift and the land that devolved on her when her father died. These sons are four in number and it is conceded that some of them are quite young. It is admitted by the Counsel for the plaintiffs that so long as the sons are alive or any of their descendants, whether male or female, are, in existence the plaintiffs can have no right to the land. It was urged that should the lines of descent of all the sons become extinct at any time the land would revert to the plaintiffs or their descendants. I doubt whether this proposition is absolutely correct, but even if it were there is no knowing when that contingency will happen and one can legitimately say that the chances of the plaintiffs'' succession to the suit land are very remote indeed. In the circumstances I cannot but bold that the suit is purely speculative and this in itself is a sufficient reason for dismissing it.

The result is that the appeal is allowed and the suit is dismissed with costs throughout.

Chopra, J.: I entirely agree.