HARNAM KAUR Vs. SAWAN SINGH

JUDGEMENT

(1.) This appeal raises questions which are arising frequently on account of the abolition of occupancy rights in land by legislation.

(2.) It is common ground that the land in dispute measuring 223 bighas 2 biswas was held by Smt. Fatto as an occupancy tenant. Part of this land, that is 113 bighas 7 biswas was inherited by her from her son Harchand Singh and the Balance 109 bighas 15 biswas from a collateral of her husband Kehar Singh. It is also common ground that on the 11th March, 1947, a Firman-i-Shahi was issued by his Highness the Maharaja of Patiala, whereby the occupancy tenants and the landlords were to become absolute owners of the land in the ratio of two-third and one-third respectively, and the occupancy tenancy was to come to an end. This Fireman-i-Shahi was later on repealed by the Patiala and East Punjab States Union Abolition of Biswedari Ordinance (No. XXIII of 2006 B.K.) whereby the ratio was changed from two-third and one-third to three-fourth and one-fourth, and an option was given to the tenants to purchase the one-fourth as well. This Ordinance was later on replaced by the Patiala and East Punjab States Union Occupancy Tenants (Vesting of Proprietary Rights), Act (No. III of 1953) whereby the ratio was done away with and the entire land was to vest in the occupancy tenants as absolute owners and the landlords were to be given compensation in lieu of their rights.

(3.) On the 12th of January, 1951, Smt. Fatto made a gift of the entire 223 bighas 2 biswas to her daughter Harnam Kaur. This gift was challenged by Swan Singh, a fifth degree collateral of Kehar Singh, on the usual ground that the widow had no power to make a gift of the ancestral land and the same would not be binding on his reversionary rights. This suit was decreed by the trial Court on the 31st of December, 1952, on the short ground that a widow has no power to make a gift of the ancestral or the self-acquired property whether inherited from her husband or by way of collateral succession. It was further held, that as regards Harchand Singh's property the position of Harnam Kaur was that of a sister and a sister being not an heir under custom, the gift to her would not be valid and as such there will be no acceleration of succession. Against this decision, an appeal was preferred by Harnam Kaur. The learned Judge on appeal reversed the decision of the trial Court with regard to the property which Smt. Fatto had collaterally succeeded, that is, 109 bighas 15 biswas on the ground that qua this property her position was that of a daughter and as such she was a preferential heir to the property which was non-ancestral than the fifth degree collateral of Kehar Singh. The decision of the trial Court with regard to the estate which Smt. Fatto inherited on the death of Harchand Singh was, however, upheld as qua this estate her position was that of a sister and not that of a daughter. Dissatisfied with this decision both parties have come up in second appeal to this Court, and this order will dispose of Regular Second Appeal No. 307(P) of 1953 and Regular Second Appeal No. 9(P) of 1954.