GURDEV SINGH Vs. KEHAR SINGH

JUDGEMENT

(1.) THE appellant filed a suit for declaration that alienations made by Smt. Nihal Kaur who was second wife of plaintiff's father, were void.

(2.) IT was stated that plaintiff's father Partap Singh married Smt. Nihal Kaur, after the death of plaintiff's mother. Partap Singh made a gift of land to Nihal Kaur which was recorded in the form of mutation dated 9.7.1944. The plaintiff filed a suit challenging the said gift which was against custom as the property was ancestral. The suit was decreed on 10.6.1947 to the effect that the gift will not affect the reversionary rights of the plaintiff after the death of Partap Singh. Thereafter, Smt. Nihal Kaur alienated the property received by way of gift during the life time of Partap Singh. The plaintiff challenged the same but his suit was dismissed on the ground that he could not question alienations during the life time of Partap Singh. After the death of Partap Singh on 16.6.1978, fresh suit was filed.

(3.) THE trial Court dismissed the suit. It was held that in view of provisions of Punjab Custom (Powers to Contest) Amendment Act, 1973 alienations could not be challenged on the ground of the same being violative of custom and thus, gift made in favour of Nihal Kaur was a valid gift. Further contention that a declaration was granted in favour of the plaintiff in the earlier litigation that gift will not affect reversionary rights of the plaintiff, was also rejected on the ground that reversionary rights did not survive after coming into force of the 1956 Act. It was held that Nihal Kaur did not acquire the property merely by way of gift but also by way of her maintenance claims and, therefore, clause (1) of Section 14 of the Act will apply and not clause (2). Reliance was placed on a decision of the Apex Court in Bai Vajia (dead) by LRs. v. Thakarbhai Chelabhai and others, AIR 1979 SC 993, wherein after referring to earlier judgment of the Apex Court in V. Tulasamma v. V. Sesha Reddy, AIR 1977 SC 1944, it was held that Section 14(2) was in the nature of proviso to Section 14(1) and was to be read with explanation appended thereto and will apply only to those cases where by virtue of a certain grant or disposition, right is conferred on the widow for the first time if such a right is conferred on a widow in recognition of her right of maintenance, Section 14(2) will not apply.