HARMAL KAUR Vs. KARTAR KAUR

JUDGEMENT

(1.) THIS regular second appeal by the plaintiffs is directed against the judgment and decree, dated 26-10-1962, of the Subordinate Judge 1st Class, Patiala, dismissing the plaintiffs suit, which was further confirmed in the first appeal by the Additional district Judge, Patiala, on 25-5-1963. It arises out of the following facts.

(2.) ONE Bishna Antal Jat of village Karn pur, Tehsil Patiala, governed by agricultural custom, died more than 41 years before the suit, in 1929 or 1930 A. D. approximately, leaving behind the suit land, measuring 102 bighas and 9 biswas, and a house situated with in the area ol village Karnpur. Daulat the only son of bishna. bad predeceased him by about one month, leaving behind his widow Kartar Kaur, defendant Respondent 1. On Bishna's death, ihe imitation of his landed estate was attested in favour of his daughter-in-law, Kartar Kaur defendant, on 24th Jeth 1983 B. K. , (corresponding to May, 1929 A. D.) Karjai kaur thereafter continued to be in possession and enjoyment of the estate of the deceased. By a registered deed, dated 13-9-1961, this Kartar Kaur gifted that property to surjan Singh. Defendant 2, son ot Amar Singh of Nanhera, Tehsil Ambala. On 177-1962, Harmel Kaur, wife of Kharak Singh and Mst. Wasu, wife of Pritam Singh, daughters of the last male holder Bishna instituted the suit for a declaration that the aforesaid gitt was void and would be in- effective qua the reversionary righto of the plaintiffs after the death of Kartar Kaur, Defendant 1. It was alleged that the plaintiffs were governed by agricultural custom in matters of succession. according to which Kartar Kaur was a limited owner and had no power to alienate the land by g ift, which after her death would revert to the heirs of the last male holder from whom she inherited the same. The suit was resisted by the donee, inter alia, on the ground that by the operation of the Hindu Succession Act, Kartar Kaur donor had become absolute owner of the land, and, At such, was entitled to gift the same. The trial Court upheld this plea, and, in the result, dismissed the suit with costs. The appeal of the plaintiffs to the additional District Judge, Patiala. was dismissed and the decree of the trial Court was confirmed. This is how the plaintiffs have come up in second appeal before this Court.

(3.) SHRI Hans Raj Aggarwal, the learned counsel for the plaintiff-appellants, contends that under Punjab custom (by which the parties were governed in matters of succession at the time of the death of the last male holder, Bishna), kartar Kaur being the widow ot sonless Daulat, who had predeceased Bishna, was not entitled to succeed to Daulat's share, and consequently, her possession of the disputed land was no better than thai of a trespasser. It is fur-ther argued that the word "possession" used in Section 14 of the Hindu Succession Act, cannot be extended to include possession of property by a female without any title to it. According to the counsel, the result is that Section 14 (1) could not he called in aid as enlarging her wrongful title into an absolute, valid title. In support of this contention, the learned counsel has cited Gurdas v. Mst. Prito, 1960-62 Punj LR 844 = (AIR 1961 Punj 203), and Smt. Giano v. Moti Ram. 1961-63 Punj LR 30 = (AIR 1961 Punj 274)