Customary Law , in the, Punjab; , adoption . is '. secular v. HamamSingh

in the year 1907, the second daughter, died in the year,, 1927. while Mst. · Badni, the widow, died Mst. Laxmi remained in possession of the property till her death in the year 1928. After her. death Balabux, her husband, on the 5th of July, 1930, claiming as heir to her mortgaged the defendant appellant Nathoo Lal and later on the 5th of . ,October, 1933, he sold it to him and put him into possession of it and since then he is in possession. On the 4th October, 1945, that is one day before the expiry of the period of 12 years the date of the the house, into possession of defendant's entry plaintiff, son of Mst. · Bhuri, sister of Mst. Laxmi, claim~ in f orma mg as an heir to her estate, filed pauperis for possession of the house. He alleged that he was in possession of the house till the 24th of August; that after it was vacated by 1933, the tenant he locked it and went away to his native village Harmara ; and that on the 27th of September, 1944, he came to know that the house had been taken pos.,es~ion ·of by the appellant during his, absen~e ... It through his tenant, this suit 1954 Nathoo Lal v. Durga Prasad. Mehr Chand Mahajan C. J. 54 SUPREME COURT REPORTS [~955] was contended ·by him that Balabui, had .no right-.~ither to mortgage·or sell the- house and' that. Laxmi was.pot the ·absolute. owner of the .property but had_.,only a limited estate -in ·it, . and .on .her <lea.th' he was . ,. possession of it. ,entitled .. , " , . .. . , .- , , ' ' - - + .. On the' 28th. o{ A\lgust; 1947,' . the 'suit· was' dismjssed by the Civil Judge, who. held that Msi. Laxmi became the absolute owner of the property; · and the' plaintiff therefore had no title .to claim possession of i.t after her death, < Balabux being her stridhan, heir. ··The learned Judge. however held that tl1e. suit was. within .. lim.itaticm On appeal, this decision -was· affirmed by the ... District the widow. in Judge. He expressed executing the deed , of gift was only acting as an execu trix of the oral will .made by Ramchandra at his .death bed and that Laxmi, -got .under. this. will an absolute . suit property. The plea of. Jimitation estate m raised by the defendant. was negatived on the fin.ding that the plaintiff .was in possession of it within twelve ., years of the suit. · the. opinion the case the house was bequeathed Plaintiff preferred a second appeal to the High Court of Jaipur and this time with success. The High Court held that· after the death of Laxmi the plaintiff conti in possession of the house till he was· dispossessed by the defendant on the 5th of October, 1933, and that he was in . possession even durin'g her lifetime. On the mam question the High Court held that though to Laxmi by Ram that ·it chandra under an oral will, conferred upon her an absolute interest m the property and that in the absence of any evidence indicating. that the donor intended to convey an absolute the gift being in favour of a female. could only con her, fer upon her a limited life estate and on her death re to. the donor's heirs and the plaintiff being• such an heir was entitled to succeed. In the result the appeal was allowed and the plaintiff's suit was · decreed with costs throughout. there was no proof interest The defendant applied for· a review of· this judgment. Meanwhile the Jaipur High Court· had become ·defunct and the review was. heard by the Rajasthan High Court - S.C.R. SUPREME CdlJR']_) REPORTS 55 it was provided therein as successor to· the Jaipur High Court' under the ·High Courts Ordinance and was partially . allowed on the 5th of April,· 1950, and the ·decree was accordingly amend that the· plaintiff shall ed and the house except on not be entitled the defendant as costs of im payment of Rs. 4,000 to It is· against provements and repairs. this · judgment and decree passed after the coming into force of the Constitution of India ·that the present appeal has been preferred to this Court by leave of the Rajasthan High Court under article 133 ( 1) ( c) of the Constitution. to · possession of Nathoo Lal v. Durga Prasarl. Mehr Chand Mahajan C. J. the maintainability of The learned counsel for the respondent raised a preli mmary objection appeal. He contended that according to the Code of Civil Procedure of the Jaipur State the decision of final as no appeal Jaipur High Court had become It was incompetent. from it and hence this appeal was in the suit decided in 1945 argued that the proceedings had concluded by the decision of the High Court given in 1949, and the review judgment which modified improvements, could not entitle decree in to reopen the decision of the High Court the appellant of Jaipur given in 1949. regard In our op1111on, this objection is not well foun, foi. The only operative decree in the suit which finally and is the conclusively determines the rights of the parties decree passed on the 5th of April, 1950, by the Rajas than High Court and that having been passed after the the pro coming into force of the Constitution of India, to it and it is appeal visions of article 133 are attracted able to this Court provided the requirements of article are fulfilled. The Code of Civil Procedure of the jurisdiction of Jaipur State could not determine this Court and has no relevancy to the maintainability of the appeal. The requirements of article 133 having been fulfilled, this appeal is clearly competent. · The learned counsel then contended that the High Court was in error in granting the certificate m case. We are unable to agree. An inquiry was made into the valuation of the property and it was reported that its value was Rs. 20,000. or that the decision affected } 1954 Nathoo Lal . . v. Durga Prasad. ,Mehr Chand. Mahajan C. ]. 56 SUPREME COURT REPORTS [1955] in the case, property of the. value · of . above Rs. 20,000. A .. subs tantial questioff of law . was ·involved 1s, whether a testamentary· • disposition by a Hindu in favour of a female .. heir conferred on her only a limit in the absence of evidence that . he . intended ed estate to confer on her· an ·absolute interest . in the property. the High Court In these ·circumstances .was fully justi fied in granting ·the··· certificate. · We ourselves would have been prepared this appeal under our extraordinary powers conferred by article 136(1) of the Constitution, ·a certificate had not been given . the . case .. For. the reasons given above, we see no m two preliminary objections which we overrule. , in either of these to admit if such Dr. Bakshi Tek Chand for the appellant contended that the. Courts below . were in error in .holding that the plaintiff's suit was within limitation. He urged . that in order to bring the suit within limitation the plaintiff in paragraph 5. of the plaint alleged that after the death of Laxmi he kept tenants in rent· and enjoyed it .and that the· last tenant vacated on ·August, 1933, and thereafter he went to his the 24th this. alle native place after locking the house, but that gation had not been made good by him, and as it should be ~as no' evidence . that he locked the house, held that plaintiff's possession discontinued with · effect froIT\ the. 24th August, 1933, and hence his suit· brought more than twelve 'years ffom that date . was not within time: the house; realised · · ·· · · · in possession in possession of this house even during It has 'been found by the C~urts below that the plaint the life iff was time of La)\mi . and c9ntinued thereafter. Even if the· tenant vacated. the house on the 24th August, 1933, and the plaintiff did not lock it, his possession would be presumed . to conti111.1e till he was dispossessed by ·some one, The law presumes in favour of coptinuity of possession. 'I'he three Courts below have unanimously held that on the evidence it was established that after the . death · of· Laxmi plaintiff continued in possession of tlie house and the suit was within limitation. There are no valid grounds for reviewing this finding in the fourth Cou1t· and ihe contention is therefore negatived. • -- - 1954 Nathoo Lal v. Durga Prasad. Mehr Chand Mahajan C. J. \ S.C.R. SUPREME C©URT REPORTS 57 limited interest could it seems that .the the High· Court was to convey an ' absolute Dr. Bakshi Tek Chand next contended inhedt a as conferring 1 an absolute that Laxmi title in the · suit property . ··under acquir.ed an absolute the will of· her father and error in holding that unless · there were express words indica~ing that the donor who had absolute interest in the gifted property intended the gift in favour of an heir who would terest to her, riot be ordinarily interest. The construed learned counsel for. the respondent on the . other. hand raised two · · contentions; He urged in the first instance intention of Ramchandra was to make a. gift of the suit property in favour. of Laxmi but he was unable to perfect the gift by executing a registered deed, , being on his deathbed and · in that situation the property. devolved on his widow by . inheri the ·widow's tance and it only came to Laxmi under gift and under interest than what the widow herself possessed, . namely,. a limit ed life est'ate, which terminated on her death. In the alternative, . it was said that there was no evidence as to the terms of the oral will and that beirig so, the' gift being in favour of. a female heir.. . the presumption in the absence of ,evidence to the contrary was donee got only a limited life interest in the bequeathed property. not get a larger it she could In our judgment, there is force in the ·contention of Dr. Tek Chand and none of the contentions raised by That respondent's counsel have any validity. Ramchandra bequeathed ·the suit · property · and did not gift it to his daughter Laxmi is a fact which cannot ·by ··the be questioned at this stage. plaintiff himself . in the witness box. · This is what he said:- It was · admitted \ )- "Ramchandra had made a will in 'favour of Mst. irr that connection my maternal grand Laxmi and mother and maternal great ·grandmother got the · gift deed registered. This very gift deed was got ·executed by my maternal grandmother and materrial great grand mother and had got it registered. Through this gift deed Mst. Laxmi held possession over it till she was alive. She had kept deponent as her son and so 1954 Nathoo Lal v. Durga Prasad. Mehr Chand MahaJan C. ]. .( • - 58 SUPREME COlJRT REPORTS [1955] to be in any manner she It definitely states 'What she got the rent ·notes executed ·in· my name!" true must be·· pre 1s admitted by a party shown. There sumed· to be true unless the contrary is the case. The gift is no· evidence to the contrary m testimony of the plaintiff on deed fully supports that according to this point. the gift deed was executed· in favour of Laxmi and will, it further recites that Laxmi was entitled to deal with liked. Those who were the house directed to execute the oral will made by Ramchandra must be presumed to have carried out his directions m It seems clear accordance· with his wishes. to benefit his daughter, intention of the testator was title as he him Laxmi, and to confer upon her the same the sole object of his bounty self possessed. She was and on the attendant circumstances of this. case it 1s intended to confer on her whatever title he himself had. Laxmi therefore became the absolute owner of the property under the terms of the oral will of her father and the plaintiff is no heir to the property law devolved on Laxmi's husband which under who had full right to alienate it. that he interest. We are further of the opm1on that the High Court was in error in thinking that it is a settled principle of law that unless there are express terms in the deed of gift to indicate that the donor who had absolute interest intended to convey absolute ownership, a gift in favour of an heir who inherits only a limited interest cannot It 1s be construed as conferring an absolute true that this was the principle once deduced from the Privy Council decision m Mahomed Shumsool v. Shewukram(') wherein it was held that a bequest to a daughter-in-law passed a limited estate. The proposi tion laid down in Mahomed Shumsool's case was constru ed by the High Courts in India to mean that a gift of immovable property to a woman could not be deemed inheritance to confer upon her an absolute estate of which she could alienate at her pleasure unless deed or will gave her in express terms a heritable estate or power of alienation. Later decisions of the Judicial if words were used Committee made it clear (1)2 I.A. 7• • -- - S.C.R. SUPREME COURT· REPORTS 59 t \ ~. ,·; ! ,· \ conferring absolute ownership upon the wife, the wife enjoyed the rights of ownership without their being con ferred by;. express and additional terms. Shumsool' s case(1) has been ·examined in recent years in some High Courts and it has been observed that according to law as understood at present there is . no' presumption one way or the other and there is no difference between the case of a male and .fact that the donee is . a woman does not make· the gift ahy the less absolute where the words would be suffi (see Nagammal v. Subbalakshmi Ammal (2). The matter has now been set at rest by the decision of this Court in Ram Gopal v. Nand Lal( 3 ). In this case it was observed as follows :- to convey an absolute estate the case of a female, and io a male 1954 Nathoo Lal v. -Durga Ptasatl. Mehr Chand Mahajan C. J. is made "It may be taken to be quite settled that there is no warrant for the proposition of law that when a grant of an immovable property to a Hindu female, she does not get an absolute or alienable interest in such property, unless such power is expressly conferred upon her. The reasoning adopted by Mitter J. of the Calcutta High Court in Mst. Kollani Kuar v. Luchmi Kuar(4), .which was approved of and accepted by in a number of decisions, the Judicial Committee seems to me to be unassailable. It was held by the case of Tagore v. Privy Council as early as m that if an estate were given to a man Tagore(5) without express words of carry, by IS Hindu Law, an estate of general principle of law which is recognized and embo died in section 8 of the Transfer of Property Act and unless it is shown that under Hindu Law a gift to a female means a limited gift or carries with it the res trictions or disabilities similar to those that exist in a 'widow's estate,' justification for ·depart ing from this principle. There IS certainly no such provision in Hindu Law and no text could be supplied in support of the same. to convey an "The position, absofote estate to a Hindu female, no express power (il 2 I.A. 7· context, inheritance. This inheritance, conflicting it would, therefore, Is . that absence IS no of a (4) 24 W.R. 395· (5) 9 Beng. L.R. 377. P.C. (1947) 1 M.L.J. 64. (2 (3 A.LR. 1951 S.C. 139. 5-86 S. C. India/59 1954 Nathoo Lal v. Durga Prasad. M<MChand Mah<ijan C. J, 1954 April.,, 60 SUPREME COURT REPORTS [1955] of alienation need be given ; it is enough used of such amplitude as would convey full ·ownership." The learned Judges of were therefore clearly wrong in law will having been made by the father daughter, it should be presumed give her a limited life estate. if words are rights of the High Court in holding that the in favour of his intended that he to . For. the reasons given above we allow the appeal, set aside the decree of the High Court decreeing the plaint the decree of the trial Court dis iff's suit and restore missing· the plaintiff's suit. the circumstances of this case we will make no order as to costs. In Appeal allowed. ' • CHHOTE KHAN,. DECEASED, REPRESENTED ... BY HIS SON, HARMAT, AND OTHERS v. MAL KHAN AND OTHERS. [Suom RANJAN DAs, . GHULAM HASAN and B. Wajih-Ul..arz-Entry JAGANNADHADAS JJ.] agreement r"egarding therein-Whether holds good .after the expiry of period of Settlement. Held, that an entry regafding agrccinent in a Wajib-ul-arz holds the currency of the Settlement and dOcs not survive good during the expiry of the period of Settlement. ·-,. .-. Hira and Others v. Muhamadi and Others (16 P.R. · 1915 at p. 89), Allah Bakhsh and Others v. Mirza Bashir·ud-Din and Others (1932 L.T.R. 56) and Lieut. Chaudhri Chattar Singh v. Mt . • · -4 Shugni and Another (A.LR. 1941 L.ah. 239) referred to. '> . CmL APPELLATE JUR1sDICTION : Civil Appeal No. 61 of 1951. Appeal from the -Judgment and Decree· dated 10th November; 1944, of the High Court of Judicature at Lahore in Civil Regular First Appeal No. 259 of 1942, arising out of the Judgment and Decree dated the 29th July; 1942, of the Court of the Extra Assist- ant Settlement Officer and · Assistant Collector · of · the ' . :~