JUDGMENT
Hemant Gupta, J.
1. The plaintiff is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court whereby her suit for declaration challenging the order passed by the Collector on 19.3.1963 declaring the suit land as surplus without considering the claim of the plaintiff having 1/3rd share in the suit property being wife of late Ram Kishan was dismissed.
2. The plaintiff has pleaded that Ram Kishan died in the year 1947 leaving behind plaintiff and defendant Nos. 2 and 3 as his legal heirs but the mutation of the estate of Ram Kishan was sanctioned in favour of defendant Nos. 2 and 3 on 10.6.1952 (Exhibit P. 2). The suit was contested by the State primarily on the ground that the order passed by the Collector is legal and valid and that the plaintiff was aware of the surplus proceedings. The proforma defendants have filed their objections in the surplus proceedings on 21.10.1959. The suit was also said to be barred by limitation and that the Civil Court has no jurisdiction to try and entertain the present suit.
3. The learned trial Court on the basis of the pleadings of the parties framed the following issues:
1. Whether the plaintiff is also one of the legal heirs of the deceased Ram Kishan? OPP
2. Whether the plaintiff also succeeded to the Estate of the deceased Ram Kishan at the time of his death in the year 1947? OPP
3. Whether the mutation of inheritance pertaining to the estate of Ram Kishan was wrongly sanctioned in the exclusive name of proforma defendant Nos.2 and 3 as alleged? OPP
4. Whether the Estate of Ram Kishan has been wrongly and illegally taken over under the surplus proceedings by virtue of Pepsu Tenancy and Agricultural Lands Act 1955 as alleged? OPP
5. Whether the order dt. 19.3.19 63 passed by the Collector Agrarian Jind is ultravires illegal and null and void as alleged? OPP
6. Whether the plaintiffs are still in possession of the suit land or any part thereof if nouo what effect? OPD
7. Whether the suit is barred by way of limitation? OPD
8. Whether this Court has no jurisdiction? OPD
9. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD
10. Whether the suit is not maintainable for want of legal and valid notice Under Section 80 CPC? OPD
11. Whether plaintiff has no locus standi? OPD
12. Relief.
4. The learned trial Court held on Issue No. 1 that the plaintiff is the legal heir of deceased Ram Kishan. On Issue No. 2 it was held that on the basis of statement of PW 2 plaintiff Prem Singh PW 3 as well as statement of DW 1 Nand Lal Reader to Naib Tehsildar it was proved that Ram Kishan died in 1947. In view of Act No. 51 contained in Judicial Surplus of Riasat Jind it was found that the plaintiff is a limited owner in the estate of her deceased-husband. On Issue No. 3 it was found that there is no evidence on record to the effect that any notice was given to the plaintiff before sanctioning of mutation therefore the mutation was wrongly sanctioned. On Issues No. 4 and 5 it was found that since notice of determining of and as surplus was not issued to the plaintiff therefore the order was not binding on the plaintiff.
5. However in appeal filed by the State the learned first Appellate Court returned a finding that the plaintiff has failed to prove the death of Ram Kishan before 20.8.1948 when on account of merger of various States including that of disputed area into Patiala and East Punjab Union (Pepsu) the laws of State of Patiala came into force. The Hindu Women’s Right to Property Act 1938 ceased to be in operation forming part of State of Jind. Thus the plaintiff has no right to succeed to the estate of Ram Kishan.
6. The following substantial questions of law arise for consideration in this appeal:
1. Whether the limited estate vested in the plaintiff on account of death of her husband Ram Kishan in the year 1947 or thereafter?
2. Whether such limited estate which ripens into full ownership by operation of law can be ignored by the collector while determining surplus area?
3. Whether the suit for declaration filed in 1977 challenging the order passed by the Collector on 19.3.1963 can be said to be beyond the period of limitation?
7. Learned Counsel for the appellant has vehemently argued that the finding recorded by the learned Appellate Court that Ram Kishan is not proved to have died before 20.8.1948 is a perverse finding. In fact the learned trial Court has recorded the finding of time of death of Ram Kishan on the basis of statement of DW 1 Nand Lal Reader to Naib Tehsildar. Apart from the said statement there is statements of PW 2 Plaintiff and PW 3 Prem Singh that Ram Kishan died in communal riots at the time of partition of the country in 1947. Such evidence was sufficient to return a finding that Ram Kishan had died in the year 1947. It is contended that the finding recorded by the learned Appellate Court that the evidence led by the plaintiff does not show that Ram Kishan died before 20.8.1948 i.e. the date on which the princely State of Jind where the property in dispute is situated merged into Patiala and East Punjab Union (Pepsu) is based upon surmises and conjectures. The evidence has been read in wholly unwarranted manner.
8. Learned Counsel for the appellant has vehemently argued that the date of death of Ram Kishan i.e. either before 20.8.1948 or thereafter is not really relevant inasmuch as the mutation of death of Ram Kishan was sanctioned on 10.6.1952 Exhibit P.2. It is contended that Ram Kishan has died before the commencement of the Hindu Succession Act 1956 (hereinafter referred to as ‘the act’) and therefore the limited estate vested with the appellant on account of her right of maintenance under the Hindu Law against the estate of her deceased husband ripens into full ownership in terms of Section 14 of the Act.
9. After hearing learned Counsel of the parties I am of the opinion that the finding recorded by the learned first Appellate Court that the plaintiff does not have any pre-existing right which could ripen into full ownership is not sustainable in law. The plaintiff has a right to maintenance from the estate of Ram Kishan after the death of her husband in Hindu Law. Such right of maintenance vested in the appellant independent of Hindu Women’s Right to Property Act 1938. Therefore in respect of first substantial question of law it is held that the limited estate vested in the plaintiff on account of her right of maintenance against the estate of deceased husband.
10. Section 14(1) of the Act contemplates that any property possessed by a female Hindu whether acquired before or after the commencement of the Act shall be held by her as full owner thereof and not as a limited owner. The explanation to the said sub-section contemplates that the property includes both movable and immovable property acquired by a female Hindu by inheritance or devise or in lieu of maintenance or arrears of maintenance. Since under the Hindu Law the appellant had a right of maintenance against the estate of her deceased husband therefore the appellant would hold the property to the extent of 1/3rd share as owner thereof the remaining 2/3rd share vesting in her two sons. Since the appellant is the owner to the extent of l/3rd share of the estate of Ram Kishan the learned Collector was bound to take into consideration such share while determining the surplus area. The order passed by the Collector without considering the share of the appellant and without hearing her is illegal and void.
11. The finding recorded by the learned first Appellate Court that the suit has been filed beyond the period of limitation is unjustified. The claim of the petitioner is based upon right of inheritance. Such right could not be defeated except in accordance with law. The learned Collector has passed an order affecting the share of the appellant without giving any notice to the appellant. Since the action is not in accordance with the provisions of the Statute the plea of the limitation cannot be raised in respect of such an order passed. Thus the finding recorded by the learned first Appellate Court that the suit is beyond the period of limitation is also set aside.
12. In view of the discussion above the judgment and decree passed by the learned first Appellate Court is set aside and that of the trial Court is restored.
13. The appeal is allowed in the above terms.