SADHU SINGH Vs. GURDWARA SAHIB NARIKE

JUDGEMENT

(1.) One Ralla Singh held some property. It was self-acquired. Isher Kaur was his wife. They had no children. On 7.10.1968, Ralla Singh executed a Will. Ralla Singh died on 19.3.1977. His widow Isher Kaur on 21.1.1980, purported to gift the property in favour of a Gurdwara. The appellant filed a suit challenging the deed of gift. He also prayed for recovery of possession after the death of Isher Kaur. The appellant claimed that under the Will of Ralla Singh, Isher Kaur took only a life estate and the properties were to vest in the appellant and his brother. On the terms of the Will under which she took the properties, Isher Kaur had no right to gift the property to the Gurdwara. She was bound by the terms of the bequest. Isher Kaur and the Gurdwara, contended that the property received by Isher Kaur on the death of her husband was as his heir and it was taken by her absolutely and she was competent to deal with the property. It was pleaded that in any event, Section 14(1) of the Hindu Succession Act entitled her to deal with the property as an absolute owner. The appellant countered that Isher Kaur having taken the property under the disposition of her husband, was bound by its terms and she had only a life estate and no competence to donate the property. It was a case to which Section 14(2) of the Hindu Succession Act applied and the limitation on rights imposed by the Will was binding on Isher Kaur. Her estate could not get enlarged under Section 14(1) of the Act.

(2.) The trial Court held that the Will propounded by the appellant was not genuine. On that basis, it dismissed the suit holding that Isher Kaur had taken the property absolutely on the death of her husband as an heir and under the circumstances she was entitled to donate the property to the Gurdwara. The appellant filed an appeal. Pending the appeal, on 17.6.1996, Isher Kaur died. The lower appellate court held that the Will propounded by the appellant was proved to be the last Will and testament of Ralla Singh. The appellant had proved its due and valid execution. The Will was thus upheld. The Court held that on the terms of the Will, Isher Kaur had only a life estate or limited interest in the property and she had no right to transfer the property by way of gift. Since Isher Kaur had taken the property under the Will which placed a restriction on her right, Section 14(2) of the Hindu Succession Act applied. Consequently, the appellant as the legatee under the Will was entitled to recover possession of the property on the termination of the life estate of Isher Kaur. Thus the trial court decree was reversed and the suit decreed. On behalf of the donee Gurdwara, a Second Appeal was filed in the High Court. The High Court, by what can even charitably only be called a thoroughly unsatisfactory judgment, reversed the decision of the lower appellate court. It did not strain its thought process. Purporting to apply the ratio of the decision of this Court in V. Tulasamma Vs. V. Shesha Reddi [(1977) 3 SCR 261] and Raghubar Singh Vs. Gulab Singh [AIR 1998 SC 2401] that court held that Section 14(1) of the Act applied to the case. It did not refer to the decisions relied on, on behalf of the appellant herein. Though it accepted the finding of the appellate court on the genuineness and due execution of the Will by Ralla Singh, it did not specifically deal with the question whether Section 14(2) of the Act was attracted to the case. Thus, reversing the decision of the lower appellate court, the High Court dismissed the suit. The appellant-plaintiff, is before us challenging the decision in Second Appeal.

(3.) The finding that Ralla Singh had executed a Will on 7.10.1968 rendered by the lower Appellate Court has not been upset by the Second Appellate Court. In fact, it has considered the Second Appeal on the basis that the Will has been executed and the property came to Isher Kaur on the basis of that Will. What it has presumably held is that Isher Kaur had pre-existing right in the property and consequently the limitation placed on her rights in the Will, could not prevail in view of Section 14(1) of the Hindu Succession Act. It did not bear in mind that the property was the separate property or self-acquired property of Ralla Singh and his widow, though might have succeeded to the property as an absolute and sole heir if Ralla Singh had died intestate on 19.3.1977, had no pre-existing right as such. The widow had, at best, only a right to maintenance and at best could have secured a charge by the process of court for her maintenance under the Hindu Adoptions and Maintenance Act in the separate property of her husband. May be, in terms of Section 39 of the Transfer of Property Act, she could have also enforced the charge even as against an alienee from her husband. Unlike in a case where the widow was in possession of the property on the date of the coming into force of the Act in which she had a pre-existing right at least to maintenance, a situation covered by Section 14(1) of the Hindu Succession Act, if his separate property is disposed of by a Hindu male by way of testamentary disposition, placing a restriction on the right given to the widow, the question whether Section 14(2) would not be attracted, was not considered at all by the High Court. It proceeded as if the ratio of V. Tulasamma (supra) would preclude any enquiry in that line.