RSA No. 3338 of 2003 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 3338 of 2003
Date of Decision: 16.7.2009
Kishan Singh ......Appellant
Versus
Pritam Singh and others .......Respondents
CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Shri Balram Singh, Advocate, for the appellant.
HEMANT GUPTA, J. (Oral).
The plaintiff is in second appeal aggrieved against the
judgment and decree passed by the Courts below, whereby the suit filed by
the plaintiff claiming the estate of Dhan Kaur wife of Waryam Singh as
natural heirs, has been dismissed.
Waryam Singh son of Ran Singh was owner of the property in
dispute. Ran Singh had three other sons, namely, Bhagwan Singh; Harnam
Singh and Rittu. Waryam Singh executed a gift deed dated 12.1.1972 in
favour of his wife Dhan Kaur. After the death of Waryam Singh, his widow
Dhan Kaur has executed a Will dated 22.12.1972 in favour of defendant
Nos. 1 and 2. The challenge in the suit is to the Will executed by
deceased-Dhan Kaur.
It has been found that earlier the gift deed dated 12.1.1972 was
challenged in a suit, which was decided on 3.9.1973, Exhibit D.1. Waryam
Singh deceased appeared as a witness in the aforesaid suit and admitted
RSA No. 3338 of 2003 (2)
execution of the gift deed. The said gift deed executed by Waryam Singh
in favour of his wife was upheld by the learned trial Court as it was held
that the issue regarding right of Waryam Singh to execute gift deed in the
previous suit, is substantially the same in the present suit and therefore, the
finding recorded in the aforesaid suit would be binding while deciding the
present suit.
Learned trial Court recorded that the Will dated 22.12.1972 is
proved to be executed and that in terms of Section 14(1) of the Hindu
Succession Act, 1956 (for short `the Act’), the limited estate inherited by
Dhan Kaur would ripe into an absolute one. Reliance was placed upon
Gulwant Kaur v. Mohinder Singh, AIR 1987 SC 2251. Such finding has
been affirmed in appeal as well.
Learned counsel for the appellant has vehemently argued that
the property was a joint Hindu family property and therefore, Waryam
Singh, could not execute the gift deed nor could Dhan Kaur, who was not a
member of the co-parcenary, execute a Will. Therefore, the findings
recorded by the Courts below are not sustainable.
However, the argument raised by the learned counsel for the
appellant is not sustainable. Even if the property was a joint Hindu family
property, the same is deemed to be notionally partitioned soon before the
death of Waryam Singh. Being a widow of Waryam Singh, Dhan Kaur has
a right of maintenance against the property of Waryam Singh. Such limited
interest in the property of Waryam Singh ripens into full ownership in terms
of the provisions of Section 14(1) of the Act, as explained by the Hon’ble
Supreme Court in V. Tulasamma v. Sesha Reddy, (1977)3 SCC 99 and
other judgments following the aforesaid case.
RSA No. 3338 of 2003 (3)
Consequently, I do not find any patent illegality or material
irregularity in the findings recorded or that the findings recorded give rise to
any substantial question of law in the present second appeal.
Hence, the present appeal is dismissed.
(HEMANT GUPTA)
JUDGE
16-07-2009
ds