Gurdip Singh and Anr. v. Amar Singh and Anr.

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2877 of 1977. From the Judgment and Decree dated 19.8.1977 of the Punja~ r and Haryana High Court in R.S.A. No. 334of1975. R. Bana for the Appellants. Harbans Lal and G.K. Bansal for the Respondents. The following Order of the Court was delivered: Kehar Singh had two wives, Basant Kaur and Sahib Devi. Sahib Devi died during Kehar Singh's life time. Sahib Devi's son was Niranjan Singh who also died during Kehar Singh's life time. Niranjan Singh had four sons and one daughter. On 26th April, 1947 Kehar Singh in lieu of maintenance made three oral gifts of properties situated in three different villages in favour of his wife Basant Kaur. The question li..._ ~ which arose for consideration before the lower Court was whether/ - Basant Kaur got an absolute estate in the gifted properties as result of the passing of the Hindu Succession Act. In regard to the land in village Ballowal the lower Courts have held that she got an absolute estate.

The High Court was concerned in the second Appeal with the lands in village Dhaipai and Chominda, and it. held the gift having been without any power of alienation would fall under Section 14(2). The Exhibit D-1 was the report of the Patwari in connection with~ the mutation proceedings and it said: "Today Kehar Singh owner of Khewat came alongwith Narain Singh Lambardar and stated that he had on 14th April, 1947, made an oral gift of land-half of total land measuring 8 bighas Pukhta, 3 Biswas and 3 Biswani, which is 4 Bighas Pukhta, 12 Biswas and 1 Biswani as detailed in favour of his wife Mst. Basant Kaur, and given possession of the same. I had only one son who is dead and. he had four sons and no other male issue. There is no certainty of life. She served me. Lambardar attests so the mutation is entered." GURDIP SINGH v. AMAR SINGH On 30th July, 1947, the Assistant Collector made the following orders:

"In the gathering, Kehar Singh donor and Basant Kaur donee, identified by Kishan Singh Lambardar are present. The change of possession of this case is admitted and verified by the donor and the donee. Donor stated that he· has got no son. I had got two wives. My grand sons, it is possible may not gift maintenance to my wife. With this view I make the gift. Gift is for maintenance. After gift there would be no powers of mortgage or sale. After the death of Basant Kaur Malkiat Singh, Amar Singh, Gurdeep Singh and Mohan Singh, children would be heirs. This gift is of 1/2 share or Khasra No. 4658/2468 measuring 4 Bighas, 12 Biswas 1 Biswani, Khewat Nos. 324 to 326, which is attested in favour of Mst. Basant Kaur donee."

The High Court on interpretation of the Assistant Collector's report came into conclusion that Basant Kaur derived only a limited estate inasmuch as such a gift, according to the High Court, would fall directly under-section 14(2) of the Hindu Succession Act and as such the limited estate of Basant Kaur would not stand enlarged into an absolute estate. The challenge was to the gift made by Basant Kaur in favour of two step grand sons ignoring the other two. There is no doubt that Basant Kaur had the right of maintenance I E and the gift was explicitly in lieu of maintenance. As such we are of the! view that it was not a case of her acquiring any new property by virtue i of the gift but it was a case of her right of maintenance being given to! her by way of a gift. It was a property acquired by gift in lieu o( maintenance.

This acquisition on 26th April, 1947 havin&been prior to -)>- the Hindu Succession Act, we are ofthe view that she hating acquired this property by way of gift in lieu of her antecedent right to maintenance, it would fall under sub-section (1) and not under sub-section (2) of section 14 of the Hindu Succession Act, 1956. In this view we are in consonance with ~he decisions in Bai Vijia (Dead) by Lrs. v. Thakorbhai Chelabhai & Ors., [1979] 3 SCR 291; Gu/want Kaur & Anr. v. Mohinder Singh & Ors., [1987] 3 SCC 674; Maharaja Pillai Lakshmi Ammal v. Maharaja Pillai Thillanayakom Pillai & Anr., [1988] 1 SCC 99 and Jaswant Kaur v. Major Harpal Singh, [1989] 3 sec 572. In view of the facts and circumstances, we are of the view that the decisions of Mst. Karmi v. Amru & Ors., [ 1972) 4 SCC 86 and Kothi Satyanarayana v. Galla Sithayya & Ors., [1986] 4 SCC 760 are distinguishable on facts.