Marriages are settled in heaven, and they are performed on earth. Happy couples are all alike, every unhappy couple is unhappy in its own way. That unhappiness often finds its painful way into a courtroom.

Whether and where a marriage can be dissolved is a matter in the domain of the earthly law governing the spouses, but the matrimonial laws are not common everywhere in the world and they differ from country to country. The problem arises when the parties have their domicile in one country and one of them obtains matrimonial relief in a foreign country. The moot question posed is whether the foreign court can pass a valid decree of Divorce, when the matrimonial chord between the parties is governed by the provisions of Hindu Marriage Act,1955 & ancillary to this is whether the decree passed by a foreign court can be recognized by the Court in India, as being conclusive.

It is further pointed out that many foreign decrees in matrimonial cases is becoming the order of the day and therefore, a time has come to ensure certainty in the recognition of the foreign judgments in these matters. In the absence of any legislation, the Supreme Court of India has taken initiative and ventured to lay down the minimum rules of guidance for securing the certainty in the matters of recognition of foreign judgments as according to it beginning has to be made as best as one can.

To fully understand the issues, it is necessary to go through various provisions of enactments, the interpretation of various enactments by the Supreme Court of India and other High Courts of States.

It would be apt to reproduce the relevant provisions of Code of civil procedure, Indian Evidence Act, Hindu Marriage Act,1955, Hindu Adoption and maintenance Act,1956 and governing the issues involved: –

Code of Civil Procedure

Section 13. When foreign judgment not conclusive. – A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except- (a) where it has not been pronounced by a Court of competent jurisdiction; (b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of [India] in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice; (e) where it has been obtained by fraud; (f) where it sustains a claim founded on a breach of any law in force in [India].

Section 14. Presumption as to foreign judgments. – The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

Indian Evidence Act:

Section 41. Relevancy of certain judgments in probate, etc., jurisdiction.-A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. Such judgment, order or decree is conclusive proof- that any legal character, which it confers accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, [order or decree] declares it to have accrued to that person; [order or decree] declares it to have accrued to that person;” that any legal character which it takes away from any such person ceased at the time from which such judgment, 1[order or decree] declared that it had ceased or should cease; [order or decree] declared that it had ceased or should cease;” and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, 1[order or decree] declares that it had been or should be his property. [order or decree] declares that it had been or should be his property.

Hindu Marriage Act, 1955

Section 1. Short title and extent. – (1) This Act may be called the Hindu Marriage Act, 1955. (2) It extends to the whole of India except the State of Jammu and Kashmir and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.

3. Definitions. -In this Act, unless the context otherwise requires, –

(b) “district court” means, in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act.

Section 10. Judicial separation.-1 [(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.]

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

Section 11. Void marriages. -Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.

Section 12. Voidable marriages.-(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:- [(a) that the marriage has not been consummated owing to the impotence of the respondent; or] (b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 4 [was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)], the consent of such guardian was obtained by force [or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent]; or (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage- (a) on the ground specified in clause (c) of sub-section (1) shall be entertained if- (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied- (i) that the petitioner was at the time of the marriage ignorant of the facts alleged; (ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and (iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of 6 [the said ground].

13. Divorce.-(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- 1 [(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or] (ii) has ceased to be a Hindu by conversion to another religion; or [(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.-In this clause,- (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or] * * * * * (v) has * * * been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order; or (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; *** * * * * * * [Explanation.-In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.] [(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground- (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,- (i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or (ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or 1 [bestiality; or] [(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; (iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. Explanation. -This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).]

13A. Alternate relief in divorce proceedings.-In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

13B. Divorce by mutual consent.-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

14. No petition for divorce to be presented within one year of marriage.-(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, [unless at the date of the presentation of the petition one year has elapsed] since the date of the marriage: Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented [before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the 1 [expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after 2 [expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed. (2) In disposing of any application under this section for leave to present a petition for divorce before the [expiration of one year] from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the [said one year].

Section 19. Court to which petition shall be presented.-Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction:- (i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition, resides, or (iii) the parties to the marriage last resided together, or [(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or] (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.

Section 24. Maintenance pendente lite and expenses of proceedings.-Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable. 2 [Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.]

Section 25. Permanent alimony and maintenance.-(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall *** pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant [the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify, or rescind any such order in such manner as the court may deem just.

(3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just].

Section 27. Disposal of property. -In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.

Hindu Adoptions and Maintenance Act, 1956

Section 18. Maintenance of wife – (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance –

(a) If he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of willfully neglecting her;

(b) If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

(c) If he is suffering from a virulent form of leprosy;

(d) If he has any other wife living ; (e) If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; (f) if he has ceased to be a Hindu by conversion to another religion;

(g) if there is any other cause justifying her living separately;

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

Concept of Domicile

Before adverting to the issue, it is necessary to discuss the concept of domicile adopted by the courts in interpreting the word residence occurring in section 19 of Hindu Marriage Act,1955.

The plain dictionary meaning of the term ‘domicile’ is one’s legally recognized place of residence. Domicile has been described in Halsbury’s Laws of England, 4th edition, Volume 8, Paragraph 42 1) as the legal relationship between individual and a territory with a distinctive legal system which invokes that system as his personal law. Such residence must be coupled with the intention to make it a permanent home. A mere sojourn or temporary residence does not constitute domicile. Domicile is the condition in virtue whereof is ascribed to an individual the character of a citizen of some country on the basis of which the personal rights of the party that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy must depend. The object of ascertaining domicile is to determine which municipal law is applicable for regulating the rights and obligations of the parties. Thus, domicile signifies connection with a single system of territorial law. There are some general rules regarding domicile, and they are that-(i) nobody is without domicile, (ii) a person cannot have two domiciles, (iii) there is a presumption in favour of continuance of an existing domicile. There are two main classes of domicile; the domicile of origin which is communicated by operation of law to each person by birth i.e., domicile of his father or mother and domicile of choice which every person of full age is free to acquire in substitution for that which he at present possesses. The domicile of origin is received by operation of law at birth and for acquisition of a domicile of choice, one of the necessary conditions is the intention to remain there permanently. The domicile of origin is retained and cannot be divested until the acquisition of the domicile of choice. By merely leaving his country, even permanently, one will not, in the eye of law, lose one’s (his) domicile until he acquires a new one. So far married woman is concerned, the domicile of her husband is communicated to her immediately on marriage and it is necessarily and inevitably retained by her for the duration of her marriage. This means that she is incapable of acquiring a domicile of her choice during the subsistence of her marriage and that her domicile follows that of her husband’s domicile. It is thus a domicile of dependence or a matrimonial domicile. Thus, domicile is a test for determining personal law. (Louis De Readt v. Union of India, 1991(3) S.C.C. 554. To confer jurisdiction on the ground of plaintiff’s residence and entitle the decree to extraterritorial recognition, the residence must be actual and genuine and accompanied by an intent to make the State his home. A mere sojourn or temporary residence as distinguished from legal domicile is not sufficient in Central Bank of India, v. Ram Narain, [1955] 1 SCR 697, wherein it was pointed out that if a person leaves the country of his origin with undoubted intention of never returning to it again, nevertheless his domicile of origin adheres to him until he actually settles with the requisite intention in some other country. Thus, the proposition that the domicile of origin is retained until the acquisition of a domicile of choice is well established and does not admit of any exception.

“Domiciles are of three kinds, viz. domicile of origin, the domicile by operation of law and the domicile of choice. In the present case, we are concerned only with the domicile of origin and domicile of choice. Domicile of origin is not necessarily the place of birth. The birth of a child at a place during temporary absence of the parents from their domicile will not make the place of birth as the domicile of the child. In domicile of choice, one is abandoned, and another domicile is acquired but for that, the acquisition of another domicile is not sufficient. Domicile of origin prevails until not only another domicile is acquired but it must manifest intention of abandoning the domicile of origin. When we consider Section 1(2) of the Act, it is evident that the Act extends to the Hindus of whole of India except the State of Jammu and Kashmir and also applies to Hindus domiciled in India who are outside the said territory. In short, the Act, in our opinion, will apply to Hindus domiciled in India even if they reside outside India. If the requirement of domicile in India is omitted altogether, the Act shall have no nexus with India which shall render the Act vulnerable on the ground that extra-territorial operation has no nexus with India. In our opinion, this extra-territorial operation of law is saved not because of nexus with Hindus but Hindus domiciled in India. Sondur Gopal v. Sondur Rajini, 2013(7) SCC 426, Mandeep Kaur v. Dharam Lingam, (Punjab and Haryana) (DB), 2017(2) PLR 376.

Irretrievable breakdown of Marriage

It would also be necessary to consider, as to whether Irretrievable breakdown of Marriage can be considered as a valid ground for divorce for considering would satisfy the requirement of section 13 of Code of Civil Procedure, when such ground for grant of decree of divorce is alien and not provided under Hindu Marriage Act,1955. The reason is obvious because the divorce is mainly granted by the foreign courts because of Irretrievable or simply breakdown of Marriage. The answer is no, in view of pronouncement by Supreme Court of India. Irretrievable breakdown of marriage is not a ground for divorce as it is not contemplated under section 13 and granting divorce on this ground alone would amount to adding a clause therein by a judicial verdict which would amount to legislation by Court. V. Bhagat v. Mrs. D. Bhagat, (1994) 1 SCC 337 Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 SCC 379, Neelam Kumar v. Dayarani AIR 2011 Supreme Court 193.

Concept of Matrimonial Property

There is no concept of matrimonial property under the provisions of Indian laws. A woman can claim maintenance under Hindu Marriage Act,1955, Hindu Adoption and maintenance Act,1956, The Protection of Women from Domestic Violence Act 2005, as also under Section 125 of Code of Criminal procedure. However, the maintenance awarded under different enactments cannot be claimed consecutively, she would be entitled to the highest amount under any of the enactments. She can claim permanent alimony/maintenance at the time of passing any decree or at any time subsequent thereto under Hindu Marriage Act,1955. She can claim right to reside in the matrimonial home in which she resides under the Protection of Women from Domestic Violence Act 2005.The property in the name of each of spouse is their personal property. None of the spouse can claim the division or ownership of property owned and possessed by either of spouse. Even if one spouse purchases the property in the name of other spouse, still, it is the ownership, which is the deciding factor, as, whosoever is the title holder of property retains the same, because of the Prohibition of Benami Property Transactions Act, 1988. Section 4 of the Act,1988 explicitly prohibits the right to recover a property held benami, however there is exception to section 4 of the Act,1988 by virtue of Section 27 of Hindu Marriage Act,1950 provides for that in any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife. A Division Bench of Punjab & Haryana High Court in Bhai Sher Jang Singh v. Smt. Virender Kaur, 1978 Hindu LR 703: observed as follows :-

“Section 27 of the Hindu Marriage Act empowers a Court while deciding a matrimonial dispute to also pass a decree in respect of property which money jointly belong to both the husband and the wife. This section at best provides a civil remedy to an aggrieved wife and does not in any way take away her right to file a criminal complaint if the property belonging to her is criminally misappropriated by her husband. Further The Punjab & Haryana High Court, Chandigarh in the case of Surinder Kaur v. Madan Gopal Singh, AIR 1980 Pb & Hry 334 explained the true import of Section 27 of the Act,1950 as:-

It would seem that the object of studding this section in the fabric of the Hindu Marriage Act,1950 is intended to pass consequential orders in relation to certain properties between the parties while dealing with any proceedings under the Act and to make provision of that nature In the decree to be passed in those proceedings. Obviously, an application for the purpose must be made before the proceedings terminate and the order can be made at the time of the passing of the decree. The sequence in which the said section appears in the statute is after the provision for the passage of decree in Section 23 of the Act and then to provide remedially as well in the terms of granting permanent alimony and maintenance under Section 25, deciding the custody of the children under Section 26, and to dis se of property jointly belonging to both the husband and the wife under Section 27, so as to ameliorate the lot of the spouse or spouses left bruised by a broken or a shattered marriage. It would also seem that Section 27 goes not envisage deciding any question as to the title of the prop involved therein or extending to all the properties of the spouses. It is couched in such a language so as to narrow its ambit within a small aphere. Analytically, the section pours out the following principles :-

(i) It must be a matrimonial proceeding pending under the Act before the Court and an application for disposal of property must be made before the decision of the Proceeding.

(ii) it is not incumbent on the Court to make provision in the decree with regard to disposal of property and it is left to its judicial discretion.

(iii) the provision so made it any, must be just and proper as the Court deems having regard to the adjustment of the equities between the parties and all surrounding material circumstances:

(iv) the order would envelope only that property which was presented at or about the time of the marriage, which means not only presented at the marriage but also at a time either prior to or after the marriage. That must be in close proximity of the time of the marriage and not to those made outside the extending limit of that time.

(v) the property so presented may either be to the wife or the husband or both; and

(vi) at the time the Court is required to exercise its discretion, the property may belong jointly to both the husband and the wife.

Now it is well understood that the word “belong” necessarily does not reflect title to the property in the sense of ownership. It only denotes connection with property and is a term connecting a person with his possessions. It appears to me that the property thus presented to the spouses within the afore-explained time limit, may fall jointly to belong to bath the husband and the wife, irrespective of the title in those properties to be vesting in one or the other or both. To give an earthly example, a saree presented by the husband or anyone else to the wife, may or may not involve transfer of title to the saree to the wife, but will belong to her exclusively and not jointly to both the husband and the wife, as the very nature of the garment so suggests Similarly, a suit presented to the husband in the same fashion would be exclusively belonging to the husband. Properties and articles presented from any source and to any one of them which by the very nature of the present, or by intention of the donor or by tacit agreement of spouses, has come to be jointly in use by both the husband and the wife, can well be said to belong jointly to both of them. An earthly example of such incident can be that of a set of dining table and chairs for joint user in the matrimonial home irrespective of the fact as to which spouse received it as a present within that allocated time. The said dining table and chairs would obviously be joint belong of both the husband and the wife and capable of being subjected to orders under Section 27 of the Act.

If any parity is permissible, it can be drawn with the principle underlying Section 25 of the Act. Each spouse’s earning capacity and other property, despite title thereto, is taken into account while equitably apportioning the income of both the spouses in such s manner so as to keep the less provided one adequately maintained at the cost of the other having regard to their post-marital-social status. In the same way Section 27 of the Act provides-for sharing of that property which the spouses received individually or collectively as presents, at or about the time of the marriage and which had come to be, as a way of life, in their joint use in their day to day living and thus `belongings’ for the purpose. If matrimony is disrupted, such jointly belonging articles would require the attention of the Court to be apportioned between the spouses as a measure of remedial relief.

In India, when Hindu marriage is by and large arranged by others than the spouses themselves, its breakage causes ripples in members of the society. It is one of the reasons why most of the judgments rendered by matrimonial Courts which fall squirrel within Section 41 of the Indian Evidence Act, are judgments in rem affecting the world at large. If a contested issue of disposal of property were to engage the attention of the matrimonial Court predominating other proceedings regarding which decree is sought, then the decision cannot be rendered with promptitude. The disposal of property as envisaged under Section 27 can only become part of the decree subject to other conditions fulfilling, if, it is capable of being settled without consuming much time so as not to entail delay in the passage of the decree. But if the Court finds itself confronted with regular contest from the tenor of pleadings the divergence of views and the anticipated quantity of evidence, it would well be within its right to refuse passing orders regarding disposal of property as a part of the decree. The disposal of property matter cannot outweigh the main proceedings before the Court regarding which it is required to pass a decree in the first place, the Court has to discern as to whether the presents received by either of the spouses from whatever source were in fact received end within the time earmarked in the section. Then in the second place the Court has to see as to which of the present or presents belong jointly to the spouses.

The Supreme Court of India in Balkrishna Ramchandra Kadam v. Sangeeta Balkrishna Kadam decided on September 4, 1997, while dealing section 27 of The Hindu Marriage Act,1950 held as: “On a plain reading of the section. it becomes obvious the Matrimonial Court trying any proceedings under the Hindu Marriage Act, 1955, has the jurisdiction to make such provision in the decree as it deems just and proper with respect to nay property presented “at or bout the time of marriage” which may belong jointly to both the husband and wife. This section provides an alternate remedy to the wife so that she can recover the property, which is covered by the Section, by including it in the decree in the matrimonial proceedings, without having to take resources to the filling of a separate Civil Suit and avoid further litigation”.

Further Punjab & Haryana High court, Chandigarh in Deepak v. Rajni, Civil Revision No.7127 of 2018, decided on December 13, 2018 held as: Firstly, Section 27 of the Act is only an enabling provision where by the Court in any proceedings under the Act may make any provision in the decree with regard to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife. It does not specifically oust the jurisdiction of the Civil Court in that regard. Hence, it can be considered as an additional remedy available to the aggrieved. Secondly, Section 27 has been held to be applicable only to the property contemplated therein i.e., any property presented, at or about the time of marriage, which jointly belongs to both the husband and the wife. Istridhan being the absolute and exclusive ownership of the wife, it has been held that no order under Section 27 of the Act can be passed in regard thereto.

Interpretation of Section 13 of Code of Civil Procedure.

R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, (AIR 1963 Supreme Court 1), the Supreme Court pointed out that Section 13 of Code of Civil Procedure incorporates a branch of the principle of res judicata. However, the Supreme Court also clarified that though both rules are founded upon the principle of sanctity of judgments competently rendered, the rule of conclusiveness of a foreign judgment as enacted in Section 13 CPC is somewhat different in its operation from the rule of res judicata incorporated in Section 11 CPC. But the rule of conclusiveness of a foreign judgment applies only to matters directly adjudicated upon and hence, what is conclusive is the judgment. While the competence of a Court, for the application of the rule of res judicata, is determined strictly by the Municipal Law, the competence of the foreign court is determined by the dual test of competence by the laws of the State, in which the court functions as well as in an international sense. To apply the rule of res judicata, the adjudication should have been in a former suit. But, for the application of rule of conclusiveness, it is not necessary that the judgment must have been delivered by the foreign court, before the institution of the suit in which the plea is set up. Again, what is conclusive in respect of a foreign judgment is only the final adjudication and not the reasons. More importantly, the Supreme Court held in R. Viswanathan that in adjudging the competence of the foreign court, it would not be open to the Indian court to ignore the course of practice in that court, even if it be not strictly warranted by the procedural law of that State. Whether the procedure of the foreign court, which does not offend natural justice is valid or not, is for the foreign court to decide and not by the court in which the foreign judgment is pleaded as conclusive.

Smt. Satya v. Teja Singh, (SC), 1975(1) SCC 120, In determining whether a divorce decree will be recognized in another jurisdiction as a matter of comity, public policy and good morals may be considered. No country is bound by comity to give effect in its courts to divorce laws of another country which are repugnant to its own laws and public policy. Thus, where a “mail-order divorce” granted by a Mexican court was not based on jurisdictional finding of domicile, the decree was held to have no extraterritorial effect in New Jersey, State v. Najjar, 2 NJ 208. American courts generally abhor the collusive Mexican mail-order divorces and refuse to recognize them, Langner v. Langner, 39 NYS 2d 918. Mail-order divorces are obtained by correspondence by a spouse not domiciled in Mexico. Latey in his well-known book on divorce says that “The facilities afforded by the Mexican courts to grant divorces to all and sundry whatsoever their nationality or domicile have become even more notorious than those in Reno, Nevada”. (“The Law and Practice in Divorce and Matrimonial Causes”, 15th Ed. (1973) p. 461.) Recognition is denied to such decrees as a matter of public policy. Foreign decrees of divorce including decrees of sister States have been either accorded recognition or have been treated as invalid, depending on the circumstances of each particular case. But if a decree of divorce is to be accorded full faith and credit in the courts of another jurisdiction it is necessary that the court granting the decree has jurisdiction over the proceedings. A decree of divorce is thus treated as a conclusive adjudication of all matters in controversy except the jurisdictional facts on which it is founded. Domicile is such a jurisdictional fact. A foreign divorce decree is therefore subject to collateral attack for lack of jurisdiction even where the decree contains the findings or recitals of jurisdictional facts. Section 13(A)) of the Code of Civil Procedure, 1908 makes a foreign judgment conclusive as to any matter thereby directly adjudicated upon except “where it has not been pronounced by a court of competent jurisdiction.

Surinder Kaur Sandhu v. Harbax Singh Sandhu, AIR 1984 Supreme Court 1224, The modern theory of Conflict of Laws recognizes and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. The jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstances as to when the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offspring of marriage.

Y. Narasimha Rao v. Y. Venkata Lakshmi, (SC), 1993(1) SCC 451, Under Section 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as the “Code”), a foreign judgment is not conclusive as to any matter thereby directly adjudicated upon between the parties if (a) it has not been pronounced by a court of competent jurisdiction; (b) it has not been given on the merits of the case; (c) it is founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable; (d) the proceedings are opposed to natural justice; (e) it is obtained by fraud; (f) it sustains a claim founded on a breach of any law in force in India. The Supreme Court declined to give its imprimatur to foreign decree which did not take into consideration the provisions of Hindu Marriage Act under which the parties were married. The Supreme Court while interpreting Section 13 of Civil Procedure Code has held that unless the respondent voluntarily and effectively submitted to the jurisdiction of the foreign court and contested the claim which is based on the grounds available in the matrimonial law under which the parties were married, the judgment of the foreign court could not be relied upon. The relevant portion of the judgment of the Supreme Court is reproduced as under :-

We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life. Thus, the Supreme Court of India interpreted the various clauses of Section 13 of Code of Civil Procedure as: Clause (a) of Section 13 states that a foreign judgment shall not be recognized if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognizes as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression “competent court” in section 41 of the Indian Evidence Act has also to be construed likewise. Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognize such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiescence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate. The second part of Clause (c) of Section 13 states that where the judgment is founded on a refusal to recognize the law of this country in cases in which such law is applicable, the judgment will not be recognized by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the cine under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognized by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under Clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country. Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilized system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of Audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are filed by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognized. This jurisdiction principle is also recognized by the Judgments Convention of this European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognized only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of Clause (d) may be held to have been satisfied. The provision of Clause (e) of Section 13 which requires that the courts in this country will nor recognize a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh, (supra) it must be understood that the fraud need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts. From the aforesaid discussion the following rule can be deduced for recognizing a foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married.

The exceptions to this rule may be as follows:-

(i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually, and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married:

(ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married.;

(iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. Furthermore, the decree should not be affected by any of the circumstances enumerated in Clauses (a) to (f) of Section 13 CPC The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainty in the most vital field of national life and conformity with public policy. The rule further takes account of the needs of modern life and makes do allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife’s domicile follows that of her husband and that it is the husband’s domiciliary law which determines the jurisdiction and judges the merits of the case.

Deepalakshmi v. K. Murugesh (Madras), 2010(4) RCR 956, once the parties have selected H.M. Act [Hindu Marriage Act] as their personal law, they cannot abdicate the same at their free will or as per exigencies of situation or according to their whims and fancies. The time at which the domicile is to be determined is when the parties tie nuptial knot under the Hindu Marriage Act and not the date when an application is made for matrimonial reliefs. As a natural corollary thereof, even if a party to the matrimonial petition establishes that after marriage he acquired domicile of some other country, it would not take away the jurisdiction of the Court in India if on the date of the marriage he was domiciled in India.

Smt. Hemavathi Shivashankar v. Dr. Tumkur S. Shivashankar (Karnataka), 2014(12) RCR 844, It was present to the mind of the foreign court that there was a personal law which governed the parties, and the foreign court could not have assumed jurisdiction in the light of Section 19 of the 1955 Act. The court below was clearly wrong in holding that the petition for divorce could have been filed before the foreign court. If further proceedings had stopped at that stage, it was clearly a case where the decree of divorce granted by the foreign court could have been held not binding on the appellant. Therefore, the foreign court did lack jurisdiction as the parties were clearly governed by the provisions of the 1955 Act and therefore, the marriage, to which the 1955 Act applied, could not have been dissolved by a court without jurisdiction, notwithstanding the local law under which the proceedings may have been instituted. The judgment of the foreign court was also violative of clause (a) of Section 13 of the Civil Procedure Code, as the foreign court cannot be considered as a court of competent jurisdiction, since the law under which the parties were married could not recognize it as a competent jurisdictional court to entertain the matrimonial dispute in terms of clause (a) of 13 of the Civil Procedure Code.

Conclusion:

Once the parties are Hindus & their marriage was solemnized according to the Hindu rites. Their matrimonial dispute or relationship is, therefore, governable by the provisions of Hindu Marriage Act,1955. Once the parties or either of the party did not submit to the jurisdiction of the Foreign Court either voluntarily or unconditionally and neither did consent for the grant of divorce in the Foreign Court, the foreign court has no jurisdiction to entertain and try the divorce petition and is neither recognizable nor enforceable in India. The foreign court can pass a valid decree of Divorce, when the matrimonial chord between the parties is governed by the provisions of Hindu Marriage Act,1955 & the decree passed by a foreign court is recognized by the Court in India, as being conclusive, however, subject to fulfilment of rigor of section 13 of Code of Civil procedure, as interpreted by the Supreme Court of India in Y. Narasimha Rao v. Y. Venkata Lakshmi. There is no concept of matrimonial property in India except right of maintenance, right to reside in matrimonial home and to claim in the proceeding under Hindu Marriage Act,1950 from the court to make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.

“He, who has a why to live for, can bear with almost any how.”    Friedrich Nietzsche

The Constitution of India grants rights to every Indian citizen, especially in the shape of fundamental rights, irrespective of his caste, creed, gender, and race, for his protection, assertion, defence, and livelihood. Articles 14, 15, and 16 of the Constitution not only deter discrimination against women but also, in appropriate circumstances, provide a free hand to the State to implement protective discrimination, especially in favour of women. Despite the equality so guaranteed by the Indian Constitution, and other laws, women in India were not entitled to any share in the property held by a male, in earlier times.

In older times, much before the enactment of any codified law for the governance of Hindu property and much prior to the adaption of the Constitution of India, the property of a Hindu male was inherited by males only. Though there are adequate proofs in the historical Vedas and commentaries which justify that women were capable of holding property, however, they were not given any such rights. Moreover, the transactions carried out by them were considered to be without any legal recognition and were often subjected to custom. The property held by a Hindu woman was bifurcated into Stridhan and Non-Stridhan. The former was further divided into Saudayika and Non-Saudayika. While a woman had absolute rights over her Stridhan(Saudayika) property, she only had a limited right with regard to other properties held by her.

Before the enactment of the Hindu Women’s Right to Property Act 1937, women were not entitled to a share in the joint family property, and succession was governed by survivorship. As per the rules of survivor ship, on the death of a member of a joint and undivided family, his share in the joint family property would pass on to the surviving coparceners, which included only the male members of the family. Thus, prior to 1937, there were no codified laws to deal specifically with the Hindu woman’s right to property. Where disputes arose, they were settled in accordance with the customary practices.

The Act of 1937 enabled the widow to succeed along with the son and to take a share equal to that of the son. The widow was entitled only to a limited estate in the property of the deceased with a right to claim partition. A daughter had virtually no inheritance rights. With the introduction of the Hindu Women’s Right to Property Act, 1937, the widow of the deceased husband now had a right to her husband’s property after his death. Unlike previously, where the property was divided among the surviving coparceners by the doctrine of survivorship, now it was the widow who had the sole right to such property. However, she only had limited rights (popularly called “limited estate”) over such property, which remained with her till her death. The said enactment, which was passed after much voicing of discontent over the unsatisfactory condition of women’s rights, came as a huge protection for women who were widows and were left unprovided for with nothing after the death of their husbands. The act clearly lays down that it shall be applicable only to cases where no testament regarding succession has been made by a Hindu male and he dies intestate. The intent of the said act was only to provide protection to widows by recognising their right to a limited estate even after the death of their husband. The rights and protection offered under the 1937 Act were not only to the widow of the deceased but also included the widow of a predeceased son and also the widow of a predeceased son of a predeceased son (widow granddaughter-in-law), but no other female, including a daughter, was included in the ambit of the said act. The said law was made applicable to all schools of Hindu law, including Dayabhaga and Mitakshara.

Section 3 of the 1937 Act, deals with the devolution of property. It lays down that “Devolution of property:-

(1) When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow, all his widows together, shall, subject to the provisions of sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son: Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son’s son if there is surviving a son or son’s son of such predeceased son: Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.

(2) When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had.

(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman’s estate, provided however that she shall have the same right of claiming partition as a male owner.

(4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends to a single heir or to any property to which the Indian Succession Act, 1925, applies.”

Though the said Act nowhere defines the word “property” and a cursory reading of section 3 clearly shows that the equal property as to a son, were given to the widow, predeceased son’s widow and predeceased grandson’s widow, but when the said Act came into force then the same was voiced opposition and resentment on the ground that agricultural land cannot be said to be included in the said Act, and no limited right in the agricultural property can be said to be given to a widow woman on that accord.

The said conflict about exclusion of agricultural land from the purview of 1937 Act, was settled by a decision of Federal Court in AIR 1941 Federal Court 72.

The following questions were considered by the Federal Court:-

“(1) Does either the Hindu Women’s Rights to Property Act, 1937 (Central Act, 18 of 1937), which was passed by the Legislative Assembly on 4th February, 1937, and by the Council of State on 6th April 1937, and which received the Governor-General’s assent on 14th April 1937, or the Hindu Women’s Rights to Property (Amendment) Act, 1938 (Central Act, 11 of 1938), which was passed in all its stages after 1st April 1937, operate to regulate (a) succession to agricultural land? (b) devolution by survivorship of property other than agricultural land?

(2) Is the subject of devolution by survivorship of property other than agricultural land included in any of the entries in the three Legislative Lists in Sch. 7, Government of India Act, 1935?”

The observations of the Federal Court relevant for the present purposes were:-

“……….After 1st April 1937, the Central Legislature was precluded from dealing with the subjects enumerated in List II of Sch. 7, Constitution Act, so far as the Governors’ Provinces were concerned. Laws with respect to the “devolution of agricultural land” could be enacted only by the Provincial Legislatures (entry No.21 of List II), and “wills, intestacy and succession, save as regards agricultural land” appeared as entry No.7 of List III, the Concurrent List. Act 18, read with the amending Act of 1938, endeavoured to improve the position of Hindu widows in two classes of cases (a) where by the operation of the principle of survivorship the widow is excluded from enjoyment of the share of her husband in property which he held jointly with other coparceners; and (b) where, even apart from the rule of survivorship, the widow is excluded from claiming any share in her husband’s estate by reason of the existence of sons, grandsons or great-grandsons of the deceased who under the law take in preference to the widow. Provision is also made for securing a share to a widow even in cases where her husband had pre-deceased the last male owner (S.3 (1), first proviso). The Act purports to deal in quite general terms with the “property” or “separate property” of a Hindu dying intestate, or his “interest in joint family property”; it does not distinguish between agricultural land and other property and is therefore not limited in terms to the latter.“

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The questions were answered by the Federal Court as under:-

“……(1) The Hindu Women’s Rights to Property Act, 1937, and the Hindu Women’s Rights to Property (Amendment) Act, 1938, (a) do not operate to regulate succession to agricultural land in the Governors’ Provinces; and (b) do operate to regulate devolution by survivorship of property other than agricultural land.

(2) The subject of devolution by survivorship of property other than agricultural land is included in entry No.7 of List 3, the Concurrent List.“

The said decision of the federal court lays down that the Act of 1937 shall not apply to or include agricultural land. Thus, what was welcomed as a revolution for the protection of widows’ rights was held to be available only for granting limited rights in properties other than agricultural land.

After the said decision, many states, like UP, Bihar, Maharashtra, and a few others, amended the 1937 Act and passed an extension bill in order to make the 1937 Act applicable to include agricultural land in its ambit.

However, there were many States, including the erstwhile Punjab, where no such extension to include agricultural land was provided. The decision of the Federal Court (Supra) was also considered by a Division Bench judgement of the Punjab and Haryana High Court in Hari Dass v. Hukmi, 1965 AIR (Punjab and Haryana) 254. The Division Bench was seized of the matter arising out of a decision by a Single Bench of the High Court whereby the suit filed by the appellant therein was dismissed.

While holding that Act 18 of 1937 was not within the legislative competence of the Central Legislature when it was enacted so far as agricultural land was concerned, the learned single judge was of the view that on the enactment of the Constitution, the shadow that had been cast on it was lifted, inasmuch as under List III of the Seventh Schedule, item 5, the subject-matter of “Wills, intestacy, and succession” came within the concurrent field without the qualification which was attached to that subject in the Government of India Act, in item 7 of List III. It relied on a decision of the Supreme Court in Bhikaji Narain v. State of Madhya Pradesh, AIR 1955 Supreme Court 781, and observed –

“The impugned Act had suffered only from a temporary eclipse and the shadow which had been cast on the impugned Act was the Constitution of India *****“

Thus, the question before the Division Bench was whether the Act of 1937 was applicable to agricultural land after the coming of the Constitution of India.

The Division Bench, relying upon the decision of the Federal Court in Umayal Achi v. Lakshmi Achi, AIR 1945 Federal Court 25, and the Lahore High Court in Udham Kaur v. Parkash Kaur, AIR 1945 Lahore 282, held that:-

“In the present case Act 18 of 1937 as interpreted by the Federal Court and the Lahore High Court governed evolution and succession of property other than agricultural land. It was a valid piece of legislation qua that property. There was no question of any shadow being removed after the Constitution came into force and there had to be fresh legislation in order to make Act 18 of 1937, applicable to agricultural land also. In this view of the matter the decision of the learned Single Judge cannot be sustained on the main point.”

Thus, it was held that even after the coming of Constitution of India came into force, the cloud casted upon inclusion of agricultural land under the 1937, was not removed and the said Act shall not govern the succession in respect to thereof. It may be mentioned that the Federal Court in Umayal Achi v. Lakshmi Achi, AIR 1945 Federal Court 25 (Supra) as relied upon by Division Bench had further relied upon the decision of Federal Court in 1941 AIR federal Court 72 to hold that agricultural land shall not be included under the 1937 Act.

In the meantime, with the passage of time and development, a codified law to deal with the succession and inheritance of Hindu’s was passed and Hindu Succession Act, 1956 came into force on 17th of June, 1956.

The said Act repealed all the previous Acts and, by virtue of section 4, unless expressly provided, had an overriding effect on all the Acts, usages, and customs with respect to any matter for which provision was made in the act.

Furthermore, by virtue of section 14 of the said Act, any limited right given to a woman in movable and immovable property, whether given before or after the commencement of the Act, shall be deemed to be her absolute property by virtue of section 14(1).

Section 14(2), on the other hand, carved out an exception to the said rule, stating that property acquired by a Hindu female by way of gift, will, or any other instrument, or a decree or an award, conferring restricted rights to her, shall not become her absolute property by virtue of section 14.

14. Property of a female Hindu to be her absolute property:-

(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation.-In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

Thus, after the coming of the Hindu Succession Act, 1956, any property that was held by a Hindu female, whether before or after the commencement of the said act and which does not fall under the exception of 14(2), shall be held by her in an unrestricted and absolute manner. The word “possessed” as incorporated in section 14 was further held by various judgements of the Supreme Court to include any kind of remote possession, be it constructive, physical, or even a right to possess.

The result of the incorporation of this section led to a situation whereby all the limited rights given to a female Hindu under the 1937 Act became absolute by virtue of section 14(1) of the Hindu Succession Act. However, by virtue of judicial precedents as discussed above, the said section was unable to provide any benefit to the Hindu Female with respect to any agricultural lands, as the same was held to be not included in the ambit of 1937 Act, and no Hindu Widow was entitled to even a limited right in the agricultural land under the 1937 Act.

The ratio of exclusion of agricultural land under the 1937 Act, was again put to test by the Supreme Court in Vaijnath v. Guramma 1999 AIR (SC) 555 whereby, while examining the scope of 1937 Act viz a viz Hyderabad (application of Central Acts) 1952, held that there is nothing in the 1937 Act which would exclude the agricultural land. Thus, it was held that federal court judgement shall not apply and the said Act shall also be deemed to include agricultural land. It was held that :-

“…………The language of the Hindu Women’s Right to Property Act, 1937 as enacted in the State of Hyderabad is as general as the Original Act. The words ‘property’ as well as ‘interest in Joint Family Property’ are wide enough to cover agricultural lands also. Therefore, on an interpretation of the Hindu Women’s Right to Property Act, 1937 as enacted by the State of Hyderabad, the Act covers agricultural lands. As the Federal Court has noted in the above judgment, the Hindu Women’s Right to Property Act is a remedial Act seeking to mitigate hardships of a widow regarding inheritance under the Hindu Law prior to the enactment of the 1937 Act; and it ought to receive a beneficial interpretation. The beneficial interpretation in the present context would clearly cover agricultural lands under the word ‘property’. This Act also received the assent of the President under Article 254(2) and, therefore, it will prevail.

The appellants, however, rely upon a subsequent Act passed by the State of Hyderabad, namely, Hyderabad Hindu Women’s Rights to Property (Extension to Agricultural Land) Act, 1954. Section 2 of the said Act provides that “term ‘property’ in the Hindu Women’s Rights to Property Act as in force in the State of Hyderabad shall include agricultural land. This Act received the assent of the President on 15th October, 1954 and was published in the State Gazette dated 22nd of October, 1954. It was submitted that prior to the enactment of the Hyderabad Hindu Women’s Right to Property (Extension to Agricultural Lands) Act, 1954, the Hindu women’s Right to Property Act as enacted in 1952 would not apply to agricultural land. The High Court has rightly negatived this contention. A subsequent Act cannot be used to interpret the provisions of an earlier enactment in this fashion. The language of the earlier Act is wide enough to cover agricultural land also. In the entire Hindu Women’s Right to Property Act, 1937, there is nothing which would indicate that the Act does not apply to agricultural land. The word ‘property’ is a general term which covers all kinds of property, including agricultural land. A restricted interpretation was given to the original Hindu Women’s Right to Property Act, 1937 enacted by the then Central Legislature, entirely because of the legislative entries in the Government of India Act, 1935, which excluded the legislative competence of the Central Legislature over agricultural lands. Such is not the case in respect of the Hindu Women’s Right to Property act, 1937, as enacted by the State Legislature of the State of Hyderabad. The ratio of the Federal Court judgment, therefore, would not apply……“

The ratio of the scope of the 1937 Act to include agricultural land was again tested by the Supreme Court in Babu Ram v. Santokh Singh (Deceased) through LR’s, 2019 AIR SC 1506, whereby the Supreme Court was dealing with a judgement of the Himachal High Court with respect to the inclusion of agricultural land with respect to the right of premption under section 22 of the Hindu Succession Act, 1956. While dealing with the aspect and scope of section 22 to include agricultural land, the Supreme Court discussed the comparison between the Government of India Act, 1935 and the Constitution of India. It also discussed various judgements under the 1937 Act, including the Federal Court judgement whereby agricultural land was excluded from the scope of the 1937 Act. While specifically holding that section 22 of the Hindu Succession Act 1956 should apply to agricultural land also, it was held that:-

“13. In the aforesaid background, we are called upon to decide the applicability of Section 22 of the Act in respect of agricultural lands. Before we consider the issues in question, we must refer to the decision of this Court in Vaijanath and ors. v. Guramma and anr., 1999(1) RCR (Civil) 210 : (1999) 1 SCC 292. In that case matters pertaining to intestacy and succession relating to joint family property including agricultural land, were dealt with by a state law which had received the assent of the President. Following observations of this Court, are relevant for the present purposes:-

“8. There is no exclusion of agricultural lands from Entry 5 which covers Wills, intestacy and succession as also joint family and partition. Although Entry 6 of the Concurrent List refers to transfer of property other than agricultural land, agriculture as well as land including transfer and alienation of agricultural land are placed under Entries 14 and 18 of the State List. Therefore, it is quite apparent that the Legislature of the State of Hyderabad was competent to enact a Legislation which dealt with intestacy and succession relating to Joint Family Property including agricultural land. The language of the Hindu Women’s Rights to Property Act, 1937 as enacted in the State of Hyderabad is as general as the Original Act. The words ‘property’ as well as ‘interest in Joint Family Property’ are wide enough to cover agricultural lands also. Therefore, on an interpretation of the Hindu Women’s Right to Property Act, 1937 as enacted by the State of Hyderabad, the Act covers agricultural lands. As the Federal Court has noted in the above judgment, the Hindu Women’s Right to Property Act is a remedial Act seeking to mitigate hardships of a widow regarding inheritance under the Hindu Law prior to the enactment of the 1937 Act; and it ought to receive a beneficial interpretation. The beneficial interpretation in the present context would clearly cover agricultural lands under the word ‘property’. This Act also received the assent of the President under Article 254(2) and, therefore, it will prevail.“

14. When the Federal Court was called upon to consider the matter, Entry 21 of List II of 1935 Act had inter alia dealt with “transfer, alienation and devolution of agricultural land”. It was in the exclusive domain of the provincial legislatures. The idea that the provincial legislatures were alone entitled to deal with matters relating to “transfer, alienation and devolution of agricultural land” was again made clear in Entry 7 of List III by expression “…succession, save as regards agricultural land” which dealt with concurrent powers. The provincial legislature had thus exclusive competence with regard to transfer, alienation and devolution of agricultural land. In the circumstances, the Federal Court had answered the first question that the provisions of Hindu Women’s Rights to Property Act, 1937 and Hindu Women’s Property (Amendment) Act, 1938 would not regulate succession to agricultural lands in the provinces.

15. But the situation underwent considerable change after the Constitution of India was adopted.

(i) The subjects “Transfer, alienation of agricultural land” are retained in the State List in the form of Entry 18 but the subject “devolution” was taken out.

(ii) As against earlier Entry 7 of List III where the subject, “succession” came with express qualification, “…save as regards agricultural land”, that qualification is now conspicuously absent in comparable Entry 5 in the present List III. The expression in Entry 5 today is “…intestacy and succession”. The changes indicated above as against what was earlier available in Entry 21 of List II and Entry 7 of List III make the position very clear. The present Entry 5 of List III shows “succession” in its fullest sense to be a topic in the Concurrent List. The concept of succession will take within its fold testamentary as well as intestate succession. The idea is, therefore, clear that when it comes to “transfer, alienation of agricultural land” which are transfers inter vivos, the competence under Entry 18 of List II is with the State legislatures but when it comes to “intestacy and succession” which are essentially transfers by operation of law as per law applicable to the person upon whose death the succession is to open, both the Union as well as State legislatures are competent to deal with the topic. Consequently, going by the principles of Article 254 of the Constitution of India the matter will have to be dealt with….“

The judgement in Babu Ram’s case laid down that after the coming into force of the constitution of India, any distinction that was there earlier with respect to the State list and Central list stands removed, and resultantly, no distinction can be made between agricultural and non-agricultural land. The Supreme Court clearly discussed the scope of the 1937 Act and the Federal Court judgement and many subsequent judgements which were passed on the basis of that judgement to hold that since the said distinction between state property list and Central list is no longer good, the word property, for all intents and purposes, shall be deemed to include agricultural land too.

Thus, with the said question having been decided in favour of the widow, holding that the provisions of the 1937 Act shall apply to agricultural land as well. The unrest that was caused by earlier decisions of the Federal Court and other judgements following that has been put to rest. As a result, it can safely be inferred that any restricted or limited right that the Hindu Widow derived in a property under the 1937 Act and which was acquired after the coming of Indian constitution, shall become her absolute property under section 14(1) of the 1956 Act.

(The author is a practicing advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

The effect of Hindu Succession Act, 1956 on partition of HUF property is a debatable issue between the legal experts of Hindu Law. In my opinion, this legal position has been settled by the following judgments of the Apex Court that on partition of HUF the coparcener who receives the property will be his individual property under section – 8 of Hindu Succession Act, 1956 :

1. In the Landmark Judgments, Commissioner of Wealth Tax v. Chandra Sen, 1986 (3) SCC 567 : AIR 1986 (SC) 1753, The Supreme Court held that on partition son inherit the property as an individual and not as Karta of his own family.

Under Hindu Law, the son inherit the property of his father as Karta of his own family. But The Hindu Succession Act has modify the rule of succession. In interpreting the provisions of the act it is necessary to bear in mind the Preamble of the Hindu Succession Act. The preamble states that it was an act to amend and codify the law relating to intestate succession among Hindus.

Furthermore, Section – 4 of Act makes it clear that one should look to the Act in case of doubt and not to the pre-existing Hindu Law. It would be difficult to hold today that the property which devolved on a Hindu under Section – 8 of Hindu Succession Act would be HUF in his hands vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in Class – I.

The express words of Section – 8 of Hindu Succession Act cannot be ignored and must prevail. The preamble of the Act reiterates that act is inter alia to amend the law, with that background the express language which excludes son’s son but included son of predeceased son cannot be ignored.

2. In Judgment of Yudhishthir v. Ashok Kumar, 1987 (1) SCC 204 : AIR 1987 (SC) 558, it is held that property devolved on Hindu under Section – 8 would not be HUF in his hands vis-a-vis his own sons.

3. In Judgment Bhanwar Singh v. Puran & Ors, 2008 (3) SCC 87 : AIR 2008 (SC) 1490, it is held Ancestral property – Death of Hindu male in the year 1972, property inherited by the son “A” and his three daughters – Property was partitioned by all the four in equal shares – The property thus lost the character of Ancestral property in terms od Section – 8 of Hindu Succession Act – Son of “A” born in the year 1997 acquired no interest in property by birth.

4. In a Important Judgment – Uttam v. Saubhag Singh & Ors. 2016 (4) SCC 68 : 2016 AIR (SC) 1169, it is held that an Ancestral property ceases to be joint family property from the date of death of grandfather – and devolved by succession under section – 8 of Hindu Succession Act.

On a conjoint reading of Section 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.

Applying the law to the facts of the case it is clear that on the death of Jagannath Singh in 1973, the joint family property which was ancestral property in the hands of Jagannath Singh and other coparceners devolved by succession under Section – 8 of Hindu Succession Act. This being the case of on the date of birth of the Appellant in 1977, the said Ancestral property not being the joint family property the suit for partition of such property would not be maintainable.

{According to my opinion, In this case legal position has been made clear that after partition of the joint family property the plaintiff/grandson has no right in such property because the joint family does not continue and the property in the hands of father being his individual property under Section – 8 of Hindu Succession Act.}

5. In a recent Judgment of Apex Court Radha Bai v. Ram Narayan & Ors. 2020 (1) RCR (Civil) 326, decided on 22.11.2019, it is held that after the death of the great grandfather, ancestral property partitioned between grandsons which came in exclusive share in individual capacity – The Grandfather legitimately dispose of the same vide registered sale deed in favour of defendant – Transfer of the property upheld.

6. In an another recent Judgment of Apex court – M. Arumugam v. Ammaniammal & Ors. 2020 DNJ 80, decided on 8.01.2020, it is held that that on the death of the coparcener notional partition is deemed to have taken place immediately before his death – Property no longer can be treated as joint property – Surviving members of the coparcenary get their share each in property – Share of deceased coparcener to be inherited in terms of Section – 8 of Hindu Succession Act.

There is another reason to take this view, section – 30 of the Succession Act clearly lays down that any Hindu can dispose of his share of the property by will or by any other testamentary disposition which is capable of being so disposed of by him. The explanation to Section – 30 clearly provides that the interest of a male Hindu in Mitakshara coparcenery shall be deemed to be property capable of being disposed by him within the meaning of Section – 30. This means that the law markers intended that all intents and purpose the interest of a male Hindu in Mitakshara coparcenery was to be virtually like his self acquired property. Furthermore, when we conjointly read Section – 30 with Section – 19, which provides that when two or more heirs success together to the property of an interstate, they shall take the property per capita and as tenants in common and not as joint tenants. This also clearly indicates that the property was not to be treated as a joint family property though it may be held jointly by the legal heirs as tenants in common till the property is divided, apportioned or dealt with in a family settlement.

7. In the latest Judgment Vineeta Sharma v. Rakesh Sharma dated 11-08-2020 of Larger Bench of Apex Court, discussed the amended provisions about partition of HUF and clarified that if partition of HUF has taken place as per law before 20th Day of December 2004, the daughter/coparcener will not get any share in HUF property because of partition.

Thus, If we go through the above judgments it becomes clear that if there is a partition of HUF after the commencement of Hindu Succession Act 1956 then the property in the hands of coparcener will becomes his individual property as per the section-8 of Hindu Succession Act 1956 and In such case there cannot be revival of HUF again even on the birth of son/daughter as coparcenary ceases on partition.

INTRODUCTION

On 01.06.2020, the Hon’ble Punjab & Haryana High Court finally adjudicated the 28 years long dispute over FARIDKOT RULER PROPERTY in its 547 pages judgement beautifully written and determined by Hon’ble Mr. Justice Raj Mohan Singh. This decision on such a long dispute has reposed the faith of people in the Indian Judiciary. In this article, we will try to decode and demystify the said judgement resulting in determination and adjudication of rancour over property estimated to be worth Rupees 20,000 crore.

WHAT WAS THE DISPUTE ABOUT?

Late Maharaja Colonel Sir Harinder Singh Brar was the last ruler of the former Faridkot State. He was born on 29.01.1915 and was the eldest son of Maharaja H.S. Farjand-i-Saddat-Nishan Hazrat-i-Kesar-i-Hind Maharaja BrijInder Singh Brar Bans Bahadur Raja of Faridkot. Raja Harinder Singh Brar died on 16.10.1989. His only son Tikka Harmohinder Singh died on 13.10.1981. Raja Harinder Singh Brar was survived by three daughters namely Rajkumari Amrit Kaur, Rajkumari Deepinder Kaur and Rajkumari Mahipinder Kaur. Father of Raja Harinder Singh Brar i.e. Maharaja BrijInder Singh died in the year 1918. He was survived by his widow Maharani Mohinder Kaur, Raja Harinder Singh Brar and Kanwar Manjit Inder Singh. Raja Harinder Singh Brar succeeded by his three daughters as his son Tikka Harmohinder Singh had died earlier to his death. Kanwar Manjit Inder Singh was succeeded by Tikka Bharat Inder Singh, Rajkumari Devinder Kaur and thereafter Rajkumari Heminder Kaur. Wife of Raja Harinder Singh Brar had died during his life time, however she was alive on 01.06.1982 i.e. the date on which Raja Harinder Singh Brar is purported to have executed the alleged Will. Raja Harinder Singh Brar died on 16.10.1989 in Batra Hospital at Delhi.

On 20.10.1989, Board of Trustees and Executors assembled in the Palace known as Moti Mahal Qila Mubarik, Faridkot, where Sardar Umrao Singh Dhaliwal read over the contents of Will in the presence of Board of Trustees and Executors. Under the aforesaid Will, all the concerned persons are alleged to have occupied the position with which they were invested under the said Will. They passed resolution No.1 dated 20.10.1989. Board of Trustees alleged to have taken possession, control and management of the entire estate of deceased Raja Harinder Singh Brar with the assent of the Executors. The properties located in various revenue estates were mutated in the name of the Trust and the urban properties were also transferred in the name of the Trust.

Last rites of Raja Harinder Singh Brar were performed on 26.10.1989 in Qila Mubarik, Faridkot, where Sardar Karnail Singh Doad proclaimed in the huge gathering that late Raja Harinder Singh Brar had executed a registered Will dated 01.06.1982, there by bequeathing his entire properties in favour of Trust known as Maharwal Khewaji Trust with definite Board of Trustees for the benefit of public at large.

On 14.10.1992, Rajkumari Amrit Kaur filed a suit for declaration that she is owner of 1/3rd share in the property as shown in the headnote of the plaint along with consequential relief of joint possession with defendants No.1 and 2. She further sought relief of injunction restraining the defendants from alienating the suit property by way of mortgage and exchange etc. At a subsequent stage, she also challenged the Will by way of amendment and in alternative prayer, claimed ownership of entire estate left by the deceased Raja Harinder Singh Brar on the basis of The Raja of Faridkot’s Estate Act, 1948. The second suit was filed by Kanwar Manjit Inder Singh through LRs seeking inheritance of entire estate of deceased Raja Harinder Singh on the basis of Rule of Primogeniture, besides Challenging the Will dated 01.06.1982 being null and void, which was partly decreed and partly dismissed vide judgment and decree dated 25.07.2013 passed by the Addl. Civil Judge (Senior Division) Chandigarh and Amrit Kaur was held entitled to joint possession to the extent of 1/2 (half) share with defendant No.1 Maharani Deepinder Kaur qua the properties, except the properties which have been acquired by any State Governments or Central Government. Trust which was constituted on the basis of the alleged Will is hereby declared as non-existent and the will dated 01.06.1982 was declared null and void.

Feeling aggrieved from the said judgement and decree, appeal and cross objections were filed, which were dismissed by Ld. First Appellate Court, which leads to the filing of Second Appeal before the Hon’ble High Court, Chandigarh.

QUESTIONS OF LAW INVOLVED AND THEIR DETERMINATION

(1) Whether the Raja of Faridkot’ Estate Act 1948 is a valid enactment and is applicable for succession to the Estate of Raja by the plaintiff (Rajkumari Amrit Kaur)?

(2) Whether Law of Primogeniture is applicable in the succession of Estate of deceased Raja Harinder Singh?

(3) Whether Raja Harinder Singh executed a valid Will dated 01.06.1982 and Maharwal Khewaji Trust constituted thereunder is a legally constituted Trust?

(4) Whether Civil Suit No.4193 dated 21.08.2010/04.04.1992 titled ‘Kanwar Manjit Inder Singh through LR v. Maharani Deepinder Kaur and others‘ is maintainable?

(5). Whether Civil Suit No.437 dated 23.07.2010/15.10.1992 titled ‘Rajkumari Amrit Kaur v. Maharani Deepinder Kaur and others is maintainable?

ISSUE NO.1

DECISION: The Raja of Faridkot’s Estate Act, 1948 does not advance the case of the appellant Rajkumari Amrit Kaur for the succession of the Estate. The said Act was not a valid law on the date of commencement of Constitution of India on 26.01.1950 as the said Act never savedby Article 372 of the Constitution of India, rather Ordinance No.XVI (2005 BK) as amended by Ordinance No.XVIII (2006BK) was saved on the strength of proclamation made by Rajpramukh on 24.11.1949 as no Constituent Assembly came into being and Rajpramukh proclaimed that Constitution of India shall be the Constitution of PEPSU. The said fact finds mention in the White Paper on record. Once The Raja of Faridkot’s Estate Act, 1948 was not adopted and it had ceased to have any effect on the covenanting States, therefore, it has no application to the succession in terms of Section 4 of The Raja of Faridkot’s Estate Act, 1948. Once the Raja of Faridkot’s Estate Act, 1948 itself was not approved by PEPSU, the properties as per list of properties in the hands of late Raja Harinder Singh Brar will not be governed by the said Act. It is held that The Raja of Faridkot’s Estate Act, 1948 stood repealed in view of Section 3 of Ordinance No.I and Ordinance No.XVI (2005 BK) as amended by Ordinance XVIII (2006 BK) which was the result of valid exercise of legislative powers by Rajpramukh and Ordinance No.XVI (2005 BK) was saved by Article 372 of the Constitution of India as law. The Rajpramukh made a proclamation on 24.11.1949 that the Constitution of India shall be the Constitution of PEPSU, therefore, Ordinance No.XVI(2005 BK) unequivocally fell in the category of laws as defined under Article 13(3)(a) and (b) of the Constitution of India. Therefore, The Raja of Faridkot’s Estate Act, 1948 has no application in the context of succession in the present case(s). Rajpramukh was exercising legislative powers under Ordinances No.I and XVI (2005 BK) and Ordinance No.XVIII(2006 BK) as held in Dalip Kumar v. State of Rajasthan and Dalmiya Dadri Cement Limited’s cases (supra). Article 372 of the Constitution of India did not save The Raja of Faridkot’s Estate Act, 1948 and at the time of commencement of Hindu Succession Act, 1956, the said Act had stood repealed in view of Ordinances, reference of which has already been made. Exception in terms of Section 5(ii) of the Hindu Succession Act is not attracted in case of succession of Rajkumari Amrit Kaur on the basis of Section 4(3) of The Raja of Faridkot’s Estate Act, 1948. The 26th Amendment of Constitution of India has also the effect of repealing The Raja of Faridkot’s Estate Act, 1948 and succession to Raja Faridkot’s of Faridkot’s Estate Act, 1948 in any manner. Moreover, According to Section 30(2) of Patiala General Clauses Act, (2002 BK), when an Ordinance expires, it does not revive anything not in force or existing at the time of expiry of the Ordinance, rather provision of Section 6 shall apply which provides that on expiry of Ordinance, it shall not revive anything not in force. From this proposition as well, The Raja of Faridkot’s Estate Act, 1948 is not covered under exception of Section 5(ii) of the Hindu Succession Act, 1956. For the reasons recorded hereinabove, it is held that The Raja of Faridkot’s Estate Act, 1948 is not a valid enactment after commencement of Constitution of India and is not applicable for succession to the Estate of deceased Raja Harinder Singh Brar by the appellant-Rajkumari Amrit Kaur.

ISSUE NO.2

DECISION: In view of the latest law of the land settled by the Hon’ble Apex Court, succession is to be governed by the personal law of succession and not as per Rule of Primogeniture. The aforesaid judgment Madhav Rao Scindia, etc. v. Union of India, (1971) 1 SCC 85 has been rendered by the Hon’ble Apex Court after considering earlier precedents/Constitutional Benches of the Hon’ble Apex Court, therefore, the judgment in question cannot be ‘per incuriam’. The Hon’ble Apex Court has set at naught the controversy arising from different precedents by way of present authoritative judgment after consideration of earlier judgments of the Hon’ble Apex Court and has taken recourse to the principle for settling the issue to the hilt. The judgment is well founded on reasons and is a law declared by the Hon’ble Apex Court under Article 141 of the Constitution of India. The law declared by the Hon’ble Apex Court by way of authoritative pronouncement is the law of the land. The law includes not only legislative enactments, but also judicial precedents. Reference can be made to Virender Kumar Dixit v. State of U.P., 2014(9) ADJ 506 and Bhargavi Constructions and another v. Kothakapu Muthyam Reddy And others, 2017(4) R.C.R. (Civil) 359. For the reasons recorded hereinabove, it is concluded that Law/Rule of Primogeniture has no validity in the present case. The succession has to be governed by the personal law of succession and not as per Rule of Primogeniture.

ISSUE NO.3

DECISION: The alleged Will dated 01.06.1982 executed by Raja Harinder Singh is found to be forged, fabricated and shrouded with suspicious circumstances and Maharwal Khewaji Trust constituted thereunder is not a legally constituted Trust. The decision was based on following reasons:

1. The alleged Will dated 01.06.1982 isproved to be forged, fabricated and shrouded with suspicious circumstances on the basis of statement of DW-3 Maharani Deepinder Kaur.

2. The handwriting expert report qua genuiness of the signatures of Raja Harinder Singh on the will cannot be treated as genuine report from any angle.

3. Evasive stand of the witness DW-1 (attesting witness of will) throughout, admission of fact on being subjected to proof and his background would make him interested witness and on the basis of his testimony, the Will in question cannot be held to be genuine, rather the same is proved to be forged, fabricated and shrouded with suspicious circumstances which could not be dispelled by the propounder of the Will.

4. The Will dated 22.05.1952 (Ex.PX-133/Ex.D-20) has no adverse effect on the right of the plaintiff – Rajkumari Amrit Kaur in the inheritance of Raja’s Estate.

ISSUE NO. 4

DECISION: Simpliciter suit for declaration is barred under the provisions of Section 34 of the Specific Relief Act and relief of possession cannot be claimed under the garb of mandatory injunction in the facts and circumstances of the case as the conditions of Section 39 of the Specific Relief Act are not fulfilled. While deciding maintainability of the suit filed by Kanwar Manjit Inder Singh through LR, effect of Will dated 29.03.1990 (Ex.D-10) executed by Maharani Mohinder Kaur mother of late Raja Harinder Singh is also to be seen. This Court is not precluded from taking judicial notice of inheritance, based on the Will of Maharani Mohinder Kaur on the date of death of Raja Harinder Singh on 16.10.1989, as the inheritance cannot remain in abeyance. The lawful share had come to the fold of late Maharani Mohinder Kaur on the basis of succession under Hindu Succession Act. Such qualified share is the subject matter of registered Will dated 29.03.1990 (Ex.D-10), which cannot remain in abeyance after the death of Maharani Mohinder Kaur on 05.03.1991. In this way, the beneficiaries of the Will (Ex.D-10) would also be entitled to some share in the estate of Raja Harinder Singh on the basis of inheritance by late Maharani Mohinder Kaur and further inheritance by Kanwar Manjit Inder Singh, Rajkumari Devinder Kaur and Kanwar Bharat Inder Singh on the strength of registered Will dated 29.03.1990. The Will under probate was dated 27.01.1997 and that was in respect of movable and immovable properties owned and possessed by Kanwar Manjit Inder Singh as per clause 8 of the aforesaid Will. In view of aforesaid position, the rigour of inheritance based on registered Will dated 29.03.1990, has to be honoured as per spirit of Will dated 29.03.1990 executed by Maharani Mohinder Kaur. For the reasons recorded hereinabove, the Will dated 29.03.1990 (Ex.D-10) executed by Maharani Mohinder Kaur has definite bearing on the succession of the parties to the estate of Raja Harinder Singh in accordance with law.

ISSUE NO. 5

DECISION: The said issue is discussed in the following categories:-

1. Maintainability of the suit filed by plaintiff- Rajkumari Amrit Kaur.

2. Limitation regarding challenge to the Will dated 01.06.1982.

3. Limitation with regard to filing of court fee.

1. For deciding maintainability of the suit filed by plaintiff-Rajkumari Amrit Kaur following points need to be adjudicated upon:-

(a) Question of court fee.

(b) Whether the suit is barred under Section 34 of the Specific Relief Act or not?

(c) Non-joinder and mis-joinder of necessary parties.

(d) Relief beyond pleadings.

(e) Assignment of right by the plaintiff in favour of 3rd party.

1. Maintainability of the suit filed by plaintiff- Raj kumari Amrit Kaur

Point (a) – In the light of legal principles laid down by the Hon’ble Apex Court in the Manohar v. Shivarajan and others, 2014(4) SCC 163, the waiver in respect of court fee (if any) can be appreciated and the plaint cannot be rejected on this score alone. Even otherwise issue of court fee exclusively lies under the domain of the court and the plaintiff in view of law laid down in Sri Rathnavarmaraja v. Smt. Vimla, 1961 AIR(SC) 1299 followed in CR No.5104 of 2017 titled ‘Mohinder Kumar v. Baldev Kumar’ decided on 29.11.2017. The issue of court fee is answered accordingly.

Point (b) – Non-maintainability of suit on the ground of bar under Section 34 of the Specific Relief Act cannot be appreciated.

Point (c) – Suit is not bad on account of non-joinder of necessary parties. Since the validity of Will dated 01.06.1982 has been discarded, therefore, this issue would also go to its fold and the inheritance cannot remain in abeyance even in the absence of a suit.

Point (d) – The Court can grant relief to the parties which has emerged from the record. Validity of Will dated 01.06.1982 has been discarded. Effect of undisputed Will dated 29.03.1990 (Ex.D-10) has also been noticed by this Court, therefore, the parties would succeed to the estate of late Raja as per The Hindu Succession Act, 1956. The lawful shares of the parties would be quantified and thereafter all will succeed in accordance with law. The Court can take even judicial notice of any admitted fact in order to impart justiceand to achieve ends of justice.

Point (e) – Will dated 01.06.1982 has been discarded, therefore, this question pales into insignificance and has no bearing in the case as the plaintiff has contested the case throughout and represented the estate of the deceased in her capacity as one of the heirs.

2. Limitation regarding challenge to the Will dated 01.06.1982

The suit has been preferred within limitation as the suit based on title does not attract any limitation of three years. The defendants have not claimed or proved their adverse possession by way of leading any evidence. There cannot be any dispute with regard to the proposition based on Article 58 of the Limitation Act, however question which is to be determined is whether the case in hand is governed by Article 58 or 65 of the Limitation Act. The proposed challenge to the Will by way of amendment is virtually a challenge to the document on the basis of title. Such a prayer does not attract any such limitation of three years. Even the filing of application and acceptance thereof vide order dated 19.02.1994 would fall within the period of five years from the date of death of Raja Harinder Singh. The Will was produced by the defendants only in the year 2012. Even there was no such correct knowledge available with the plaintiff prior thereto. The Trust has not claimed or proved its adverse possession.

3. Limitation with regard to filing of court fee

Since the Will has been declared null and void, therefore, this point has become nugatory.

Result of Second Appeal

RSA No.2006 of 2018 titled ‘Rajkumari Amrit Kaur v. Maharani Deepinder Kaur and others‘ is dismissed. The claim with regard to succession to the estateof late Raja Harinder Singh on the basis of The Raja of Faridkot’s Estate Act, 1948 is not sustainable. RSA No.1418 of 2018 titled ‘Maharani Deepinder Kaur and others v. Rajkumari Amrit Kaur and others‘ is totally devoid of merits. The same is dismissed. Will dated 01.06.1982 is found to be forged,fabricated and shrouded with suspicious circumstances. Therefore, the same has been rightly discarded by the Courts below and the Trust created thereunder is also held to be unfounded. RSA No.2176 of 2018 titled ‘Bharat Inder Singh (since deceased) though his LR Kanwar Amarinder Singh Brar v. Maharwal Khewaji Trust through its Boards of Trustees and others‘ is dismissed with the following observations:-

The claim with regard to succession to the estate and private properties of deceased Raja Harinder Singh on the basis of Law of Primogeniture is dismissed, however the appellant would succeed to proportionate share of late Maharani Mohinder Kaur on the basis of registered Will dated 29.03.1990 executed by her. Maharani Mohinder Kaur (mother of Raja) was alive at the time of death of Raja on 16.10.1989 and she being one of the first class heirs of Raja would have succeeded share in the estate/properties of late Raja. Therefore, on the basis ofdeemed succession/inheritance by Maharani Mohinder Kauron 16.10.1989 and thereafter to the extent of share conferred by late Maharani Mohinder Kaur upon the appellant by virtue of aforesaid Will dated 29.03.1990(Ex.D-10), the appellant would succeed to the said proportionate share in the estate of late Raja in accordance with law.

EPILOGUE

From the above discussion, the following conclusion can be deduced:

1. That the Will dated 01.06.1982 is found to be forged, fabricated and shrouded with suspicious circumstances, therefore, the claim of trust over Raja’s estate is discarded and dismissed.

2. That the Hon’ble High Court holds that The Raja of Faridkot’s Estate Act, 1948 is invalid after commencement of Constitution of India, and therefore, Rajkumari Amritkaur has no legal right over property in question on the basis of the said Act. However, she is entitled to her share in the estate in view of inheritance rule and law of succession.

3. That the will dated 29.03.1990 executed by Maharani Mohinder Kaur (mother of Raja) is valid, therefore, the legal heirs of Bharat Inder Singh are entitled to the share in the Raja’s estate to the extent of share of Maharani Mohinder Kaur bequeathed to Kanwar Manjit Singh and further inherited by Rajkumari Devinder Kaur and Kanwar Bharat Inder Singh on the strength of registered Will dated 29.03.1990. It is imperative to mention here that Maharani Mohinder Kaur was alive on the death of Raja Harinder Brar, therefore, his share in the property is devolved on his mother Maharani Mohinder Kaur to the extent of her share being class-1 heir as per law of succession.

Happy Families are all alike, every unhappy Family is unhappy in its own way. That unhappiness often finds its painful way into a courtroom.

The concept of Joint Hindu Family, Ancestral, coparcener has always been a debatable issue and give rise to litigation and as such effort has been made to clarify the doubts and to explain the law in a more explicit manner.

To begin with, it is important to understand, as to who are Hindus.

The word “Hindu” is derived from the river Sindhu otherwise known as Indus which flows from the Punjab. “That part of the great Aryan race”, which immigrated from Central Asia, through the mountain passes into India, settled first in the districts near the river Sindhu (now called the Indust). The Persians pronounced this word Hindu and named their Aryan brethren Hindus. ”

The Constitution-makers were fully conscious of the broad and comprehensive character of Hindu religion; and so, while guaranteeing the fundamental right to freedom of religion, Explanation II to Article 25 of Constitution of India was kept in mind under the codifying Acts, namely, the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956, thereafter the concept of the term “Hindu” has undergone a radical change and it has been given an extended meaning. Section 2 The Hindu Succession Act, 1956 for instance, provides that this Act applies-

This Act applies-

(a) to any person, who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;

(b) to any person who is a Buddhist, Jaina or Sikh by religion; and

(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. Explanation.-The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:-

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

The same provision is made in the other three Acts, as referred above.

Succession/Inheritance Under Hindu Law:-

Hindus were governed by Shastric and Customary laws which varied from region to region and sometimes it varied in the same region on a caste basis. As the country is vast and communications and social interactions in the past were difficult, it led to adversity in the law. Consequently in matters of succession also, there were different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations.

The two systems of inheritance which are predominant amongst the Hindus in India are; Mitakshara system and Dayabhaga system. Dayabhaga system prevails in Bengal, Mitakshara system in other parts of India. The difference between the two systems arises from the fact that, while the doctrine of religious efficacy is the guiding principle under Dayabhaga School, there is no such definite guiding principle under Mitakshara School.

Mitakshara System recognizes two modes of devolution of property, namely, survivorship and succession. The rule of survivorship applies to joint family property, the rule of succession apply to property held in absolute severalty by the last owner. The reason is that while every member of a Mitakshara joint family has only an undivided interest in the joint property. On birth, the son acquires a right and interest in the family property. According to this school, a son, grandson and a great grandson constitute a class of coparcenars, based on birth in the family. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth. No female is a member of the coparcenary. The principles of Mitakshara coparcenary are embedded in the Hindu Law jurisprudence and continue to apply after 1956 Act(of course prior to the amending Act of 2005).

Dayabhaga recognizes only one mode of devolution, namely, succession. It does not recognize the rule of survivorship even in the case of joint family property, a member of a Dayabhaga joint family holds his share in quasi-severalty, so that it passes on his death to his heirs as if he was absolutely seized thereof, and not to the surviving coparceners. The Dayabhaga school neither accords a right by birth nor by survivorship though a joint family and joint property is recognized. Neither sons nor daughters become coparceners at birth nor do they have rights in the family property during their father’s lifetime. However, on his death, they inherit as tenants-in-common. It is a notable feature of the Dayabhaga School that the daughters also get equal shares along with their brothers.

Joint Hindu Family

A joint Hindu Family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. Joint Hindu Family is controlled by the head of the family and is called Karta. Gowli Buddanna v. Commissioner of Income-tax, Mysore, AIR 1966 SC 1523.(Para 210 of Hindu Law by Mulla)

There must be atleast two members to constitute it. It may even consists of two female members. It may similarly consists of a male Hindu and the widow of the deceased brother. Smt. Sitabai and another v. Ramachandra, reported in AIR 1970 SC 343

Possession of a joint family property is not a necessary requisite for the constitution of joint family. It is true that for the existence of a joint family, the family need possess no property. The chord that knits the members of the family together is not property but the relationship. Hindus get a joint family status by birth and the joint family property is only an adjunct of the joint family.

A presumption has always been in favour of joint Hindu undivided family property unless it is proved to the contrary. The law presumes that the members of a Hindu family are joint. That presumption will be stronger in the case of a father and his sons. It is for the party who pleads that a member of a family has separated himself from the family to prove it satisfactorily. Bhagwati Prasad Sah and others v. Dulhin Rameshwari Kuer and another, reported in AIR 1952 SC 72, Indranarayan v. Roop Narayan and another, AIR 1971 Supreme Court 1962, Kaushal Kishore and others v. Dharam Kishore and others, 1977 PLR 749.

No doubt, the Old Hindu Law, after coming into being of The Hindu Succession Act,1956 has been codified, to the extent mentioned therein. However, even, at the time of framing the Act,1956, the concept of Joint Hindu Family co-parcenary property, was retained, by the law framers. It was, under these circumstances, that Section 6 of the Act, was incorporated, in the said Act, which relates to the mode of devolution of the property, which was co-parcenary, in the hands of the male holder. It, therefore, could not be said, that the entire concept of the co-parcenary property, was completely eliminated or obliterated, while framing the Act. Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum and others, AIR 1978 Supreme Court 1239, Raj Rani v. Chief Settlement Commissioner, AIR 1984 Supreme Court 1234 Balbiri Devi v. Tejbir Singh, 2010(3) RCR(Civil) 35.

Under the Hindu Law, the moment a son is born, he gets a share in father’s property and become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This position has been affected by section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Karta of his own undivided family but takes it in his individual capacity. “the property which devolved on a Hindu on the death of his father inte-state would not constitute HUF property consisting of his own branch including his son. In other words, the son’s son would not have any right in the property of his grand father”. Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors. [1986] 161 ITR 370, Yudhishter v. Ashok Kumar, (1987) 1 SCC 204, Commissioner of Income Tax v. P.L. Karuppan Chettiar, 1993 Supp (1) SCC 580 and Additional Commissioner of Income Tax v. M. Karthikeyan, 1994 Supp. (2) SCC 112.

It is manifest that the language of Section 8 must be constructed in the context of Section 6 of the Act. The provisions of Section 8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act,1956 came into force i.e. where succession opened before the Amending Act, Section 8 of the Act will have no application. Eramma v. Veerupana and others, AIR 1966 Supreme Court 1879, Daya Singh (Dead) Through LRs. and another v. Dhan Kaur, 1974(1) SCC 700.

Ancestral property commonly known as Jaddi, Pushtani, Dada lahi and Coparcenary Property

The terminology “Ancestral” has been derived from the word “Jad” i.e. A Grandfather, an ancestor and from “Pusht dar Pusht” i.e. generation after generation.

The word ancestral property has not been defined in any statute i.e. The Hindu Succession Act, 1956, The Indian Succession Act,1925.

Ancestral Property means Property inherited from paternal ancestor-All property inherited by a male Hindu from his father, fathers father or fathers fathers father, is ancestral property and any property inherited by a person from any other relation is his separate property. The essential feature of ancestral property according to Mitakshara law is that the sons, grandsons and great-grandsons of the person who inherits it, acquire an interest, and the rights attached to such property at the moment of their birth. (Para 221 of Hindu Law by Mulla) Ass Kaur v. Kartar Singh, 2007(3) RCR(Civil) 369 : (2007)5 SCC 561.

Coparcener is one who shares (equally) with others in inheritance in the estate of a common ancestor. Otherwise called parceners, are such as have equal portion in the inheritance of an ancestor, or who come in equality to the lands of their ancestors. A person to whom an estate descends jointly and who holds it as an entire estate. But sometimes, two or more persons together constituted the heir, and to this case they took the land as ‘parceners’ or ‘coparceners’, the latter expression being the more common. In theory of law, coparceners together constituted a single heir; ‘they be but one heir and yet several persons’. They were called parceners because, every coparcener had a common law right to have a partition made.

A male member of a joint family and his sons, grandsons and great grandsons constitute a coparcenery(Prior to amendment Act,2005). In other words, three generations comes to the holder in unbroken male descendant. Coparcenery is a creature of law. It cannot be created by act of parties. By adoption, a stranger may be introduced as a member thereof. It is a family unit. A Hindu coparcenary is, however, a narrower body than the joint family, only males who acquire by birth an interest in the joint or co-parcenary property can be members of the coparcenary or coparceners. No female can be ‘a coparcener prior to enactment of Hindu Succession (Amendment) Act, 2005 but by virtue of amendment,2005, now daughters have equal right and are co-parceners. (Para 211 to 214,219 of Hindu Law by Mulla)

Coparcenary is a creature of Hindu Law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent, express or implied, of the members of the family, any other member or members can carry on business or acquire property, subject to the limitations laid down by the said law, for or on behalf of the family. Such business or property would be the business or property of the family. One or more members of that family can start a business or acquire property without the aid of the joint family property, but such business or acquisition would be his or their acquisition. The business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or their self-acquisition, and succession to such property would be governed not by the law of joint family but only by the law of inheritance. In such a case, if a property was jointly acquired by them, it would not be governed by the law of joint family; for Hindu law does not recognize some of the members of a Joint family belonging to different branches, or even to a single branch, as a corporate unit. Bhagwan Dayal (since deceased) v. Mst. Reoti Devi (deceased) reported in AIR 1962 SC 287, Sunil Kumar and another v. Ram Prakash and others [(1988) 2 SCC 771.

Concept of Three Degrees above & Below:

Under Mitakshara law, whenever a male ancestor inherits any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him, would get an equal right as coparceners in that property. A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, son’s sons, and son’s son’s sons, but as regards other relations, he holds it, and is entitled to hold it as his absolute property. if the property is inherited from a paternal ancestor beyond the third degree then the property is not ancestral as against the inheritor’s sons, and the inheritor has absolute powers of disposal over it. So also, if the inheritor has neither a son, son’s son nor son’s son’s son, the property is absolute in the inheritor’s hands even though he may have other relations, for instance, a great-great-grandson or a paternal uncle, in the case of inheritance from father. But property which comes to an inheritor from one of his three immediate paternal ancestors as absolute property owing to the absence of sons, grandsons or great-grandsons, becomes ancestral property with the birth of any of them, though an alienation made by the inheritor before such birth, cannot be impeached. The character of ancestral property is not taken away by there being a partition of the property in the family of the inheritor, and though a share of ancestral property allotted to a coparcener on partition will be his separate property as regards others [Bejai Bahadur v. Bhupindar, 17A. 456 : 221. A 139 (PC), it will be ancestral property as against the allottee’s sons, grandsons, and great-grandsons whether born before or after the partition. Valliammai Achi v. Nagappa Chettiar, (SC), AIR 1967 SC 1153, Sunil Kumar and another v. Ram Prakash and others (1988) 2 SCC 771 Sheela Devi v. Lal Chand, (SC) : 2006(4) RCR CIVIL 912, 2018(3) RCR(Civil) 1004, Maya Devi v. Amrjit Kaur.

It is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently: If that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, The character cannot change merely because the father makes a will by which he gives the residue of the joint family property (after making certain bequests) to the son. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession Valliammai Achi v. Nagappa Chettiar and Ors., AIR 1967 SC 1153, C. Krishna Prasad v. C.I.T, Bangalore, 1975 (1) SCC 160, Rohit Chauhan v. Surinder Singh and Ors. 2013(4) R.C.R.(Civil) 40 : 2013 (9) SCC 419, Shyam Narayan Prasad v. Krisha Prasad & Ors., (2018) 7 SCC 646.

” ‘Interest‘ is a word of wide and vague significance, and no doubt it might be used of a wife’s or daughter’s right to be maintained which right accrues in the daughter’s case on birth; but if the father’s obligations are increased, his ownership is not divested, divided or impaired by marriage or the birth of a daughter. This is equally true of ancestral property belonging to himself alone as of self-acquired property.” (AIR 1966 SC 1523)

Acceleration of Succession:-Property which is originally ancestral does not become the self acquired property of the donee by the fact of his having obtained it by gift,will and not by inheritance, when it would have descended to him by inheritance even if there had been no gift,will. (1925)7 Lah 4, Kapur Chand Major v. Des Raj, 1974 PLR 522.

Presumption, Proof & Onus:-There is no presumption that the property is ancestral. It is well settled that the onus lies on the person who asserts the ancestral nature of the property. Mere mention of name of common ancestor in the settlement pedigree table, not presumptive proof that the land is ancestral. The ancestral nature of the property has to be proved by way of documentary evidence. It is however tirate of law that once the party has admitted in the pleadings that the property is ancestral,there cannot be an issue in this regard, so that the party has to still prove the same, although there is admission of other party. It is true that the property being ancestral in nature has to be proved in terms of its devolution/descendance from generations, in essence, last generation should be fourth generation. The burden lies upon the plaintiffs to prove the ancestral nature of land in question. Mere assertion in the plaint and admission thereof in the written statement would not clothe the Court to presume ancestral nature of the property. The ancestral nature of the property has to be proved in terms of excerpt, pedigree table and as per requirement of Volume 1, Chapter 9, Rules 5 and 6 of High Court Rules and Orders. As per para No.232 of Mullah’s Law, the plaintiffs who have asserted that the property was ancestral in nature, have to prove that the same has devolved upon them from three generations, in essence, they are the fourth generation. The admission of the defendants would not change the legal position. If a co-parcener of a joint family claims that properties are his self-acquired properties, the burden is on him to prove that the same are the self-acquired properties. Matu Ram (deceased) through LRs v. Kartar Singh and others 2004 (3) LJR 818, V.K. Surendra v. V.K. Thimmaiah (SC) : 2013(10) SCC 211, Gurmail Singh v. Rajbir Singh and another 2014(4) RCR (Civil) 397, Balihar Singh v. Sarabjit Kaur 2017(2) RCR(Civil) 226, Hari Kishan v. Rati Ram, 2018(4) PLR 783.

Mixed property:-Where it is found that some of the property in the suit is ancestral but the whole of it is not, and it is impossible to distinguish which portion is ancestral, the whole of the property in the suit must be held to be non-ancestral and must be regarded as self acquired. The law has been settled in Mara Singh v. Mst. Nikko alias Punjab Kaur and another, AIR 1964 Supreme Court 1821, G. Narayana Raju v. G. Chamaraju, AIR 1968 SC 1276, Inder Singh v. Channo and others, 2004(3) RCR(Civil) 803 (SC) : 2005(1) CCC 138.

Alienation of Coparcenary property and onus to prove:- The concept of “ancestral property” under customary law is similar to the concept of “coparcenary property” under Hindu Law in the matters of exercise of power of alienation. In Punjab, the right of succession and power of alienation are governed by personal law, i.e., in case of Muslims by Muhammadan Law and in case of Hindus by Hindu Law of Mitakshara School except to the extent to which it is modified by custom. However, power of a male holder to alienate the property was limited only if there were reversioners in existence qua whom the property held by the male holder could be treated as ancestral. This power to control the alienation by a male holder and to challenge any alienation so made was further hedged round by two statutes, the Punjab Limitation (Custom) Act (No. 1 of 1920) and the Punjab Custom (Power to Contest) Act (No. 2 of 1920), according to which only a reversioner within five degrees could challenge and control the power of alienation of a male holder within the period prescribed. Thus if a person had no reversioner living within fixed degrees his power of alienation even qua the ancestral property was co-extensive with that over his self-acquired property. In respect of State of Punjab it has to be held by virtue of Punjab Custom (Power to Contest) Act, 1920, Punjab Customs (Power of contest) Amendment Act, 1973, that there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on the ground that such alienation or appointment was contrary to custom. In Haryana, the property in the hands of a successor may be held to be coparcenary property as well as ancestral property as known to Customary Law. It is well settled that the parties can fall back upon Hindu Law in case they fail to establish that the rule of decision is custom. Therefore, in Haryana both under Hindu Law and the Customary Law, the alienation would be open to challenge. Mihan v. Inder, 2008(3) RCR(Civil) 824(FB), Hardip Singh v. Sukhdev Singh, 2010(3) RCR(Civil) 644.

Similarly the power of a person governed by Hindu Law was also restricted qua ancestral property or what is termed as coparcenary property. It is settled law that the power of a Karta to sell coparcenary property is subject to certain restrictions viz. the sale should be for legal necessity or for the benefit of the estate. Apart from that, a karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality. Such alienation would bind the interests of all the undivided members of the family whether they are adults or minors.. His acts could be questioned in the Courts of law. The other members of the family have a right to have the transaction declared void, if not justified. No doubt the law confers a right on the coparcener to challenge the alienation made by karta, but that right is not inclusive of the right to obstruct alienation. Nor the right to obstruct alienation could be considered as incidental to the right to challenge the alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latter right and indeed, he is not entitled for it. When an alienation is challenged as being unjustified or illegal it would be for the alienee to prove that there was legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such-necessity. If the alienation is found to be unjustified, then it would be declared void. It is settled that a karta of the Joint Hindu Family can alienate the ancestral/coparcenary property for legal necessity and a coparcener has no right to restrain the karta from alienating the coparcenary property but if the sale is made without legal necessity and it is not for the benefit of the estate, it can be challenged by the coparceners but after the sale is made. The principle of law applicable in this case is that so long a property remains in the hands of a single person, the same was to be treated as a separate property and thus, would be entitled to dispose of the coparcenary property as the same were his separate property, but, if a son is subsequently born to him or adopted by him, the alienation whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations so made by his father before he was born or begotten. But once a son is born, it becomes a coparcenary property and he would acquire an interest therein. Legal necessity to support the sale must however be established by the alienees. Joginder Singh v. Kehar Singh, (Punjab) (F.B.), 1965 PLR 700, Rani & Anr. v. Santa Bala Debnath & Ors., (1970) 3 SCC 722, C. Krishna Prasad v. C.I.T. Bangalore, 1975(1) SCC 160, Manohar Lal v. Dewan Chand, (P&H)(FB) (1985) PLR 689, Sunil Kumar and another v. Ram Parkash AIR 1988 (S.C.) 576, Daljit Kaur Mangat v. Surinder Singh Sandhu, 2017(4) LH 1821 Vijay A. Mittal & Ors. v. Kulwant Rai (Dead) through LRs & Ors., (2019) 3 SCC 520. (Para 253 to 268 of Hindu Law by Mulla)

Court Fee:- The Court fee payable on a suit for declaration challenging the Joint Hindu Family property and the alienation challenged on the ground of fraud and misrepresentation. The Court found that the suit for declaration challenging the alienation of a Joint Hindu Family property stands on a different footing that the suit challenging the sale deed on the ground of fraud and misrepresentation, which attracts ad valorem Court fee. The ad valorem Court fee is not payable in such a suit “Niranjan Kaur v. Nirbigan Kaur 1981 P.L.J. 423 (Full Bench), Smt. Beena and others v. Rajinder Kumar and others 2006 (2) P.L.R. 6; 2006 (1) PLJ 96, Bhagwan Kaur and others v. Amrik Singh and others, 2006 (2) P.L.R. 649, Dr. Ashok Kumar Goyal v. Arya Mittar and others, Sheela Devi v. Lal Chand, (SC): 2006(4) RCR CIVIL 912, 2007 (11) P.L.R. 798, Vijay Pal v. Beer Pal Alias Jag Pal, 2007(2) PLJ 512. (Section 7(iv) of Court Fees Act, 1970)

Limitation:-The period of limitation for setting aside an alienation by a father of joint family property is 12 years from the date when the alienee takes possession of the property(Schedule 1,Article 109 of The Limitation Act,1963)(Para 269 of Hindu Law by Mulla). The period of limitation by a person excluded from a joint family property to enforce a right to share therein 12 years, when the exclusion becomes known to the plaintiff.(Article 110(of The Limitation Act,1963)

The terminology “ancestral” has lost its significance after The Hindu Succession Act, 1956 came into force w.e.f 17.6.1956 and there is no ancestral property thereafter and it is only coparcenary property under section 6 of the Act. After the Hindu Succession Act, 1956 came into force, this position has undergone a change. Post – 1956, if a person inherits a self-acquired property from his paternal ancestors, the said property becomes his self acquired property, and does not remain coparcenary property. If succession opened under the old Hindu law, i.e. prior to the commencement of the Hindu Succession Act, 1956, the parties would be governed by Mitakshara law. The property inherited by a male Hindu from his paternal male ancestor shall be coparcenary property in his hands vis-a-vis his male descendants upto three degrees below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act, 1956. The law in this regard has been clarified by the Hon’ble Supreme Court of India in Arshnoor Singh v. Harpal Kaur, 2019(3) RCR(Civil) 529, wherein it has been held” Lal Singh was the owner of large tracts of agricultural land in Village Khangarh, District Ferozepur, Punjab. The Appellant herein is the great-grandson of Lal Singh. The genealogy table of Lal Singh’s family is set out herein below for the sake of convenience:

Rights of Female in coparcenery property as per The Hindu Succession Act, 1956 and The Hindu Succession(Amendment) Act, 2005 (w.e.f. 9.9.2005)

The earliest legislation bringing females into the scheme of inheritance is the Hindu Law of Inheritance Act, 1929. This Act, conferred inheritance rights on three female heirs i.e. son’s daughter, daughter’s daughter and sister, thereby creating a limited restriction on the rule of survivorship. Another landmark legislation conferring ownership rights on woman was the Hindu Women’s Right to Property Act (XVIII of) 1937. This Act brought about revolutionary changes in the Hindu Law of all schools, and brought changes not only in the law of coparcenary but also in the law of partition, alienation of property, inheritance and adoption.

The framers of the Indian Constitution took note of the adverse and discriminatory position of women in society and took special care to ensure that the State took positive steps to give her equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of India, thus not only inhibit discrimination against women but in appropriate circumstances provide a free hand to the State to provide protective discrimination in favour of women. These provisions are part of the Fundamental Rights guaranteed by the Constitution. Part IV of the Constitution contains the Directive Principles which are no less fundamental in the governance of the State and inter-alia also provide that the State shall endeavor to ensure equality between man and woman.

It is not that the women were totally excluded from inheriting the coparcenery-ancestral property after the enactment of The Hindu Succession Act,1956. Section 6 of Act,1956 although excluded the daughters to be coparceners, but provided that if the deceased had left him surviving a female relative or a male relative through such female relative specified in Class 1 of the schedule, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under the Act and not by survivorship. And further it has been explained that the interest of a Hindu Mitakshara Coparcener shall be deemed to be the share in the property that would have been allotted to him if the partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Thus, if A was a coparcener in the property died leaving behind his widow and daughter, then, on his death, there will be deemed partition of coparcenery property and his interest would be inherited by his widow and daughter. (Para 215 & 215 -A of Hindu Law by Mulla)

Section 6 of Hindu succession Act, 1956 prior to amendment in 2005 is reproduced as:-

“6. Devolution of interest in coparcenary property.-When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act :

Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation 1.-For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

Explanation 2.-Nothing contained in the proviso to this section shall be construed as enabling a person who had separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.”

The Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act(Amendment), 2005 and now the daughters also become coparcener by birth in her own right as the son However, the amendment has een held to be prospective and is not retrospective. Prakash v. Phulavati, 2015(4) RCR(Civil) 952.

Thus to some extent the discrimination amongst the male and female have been removed, but not completely. Every member of the joint family, whether male or female should become the coparcener, so as to wipe out the discrimination for all times to come.

The law of inheritance in respect of all the real & personal properties should be so simplified that every family becomes Happy.

There are divergent views on the interpretation of section 52 of TPA and the doctrine of lis-pendence. Whether, there is any resemblance between the provisions of section 52 TPA and the essentials of lis-pendence in any manner. This dilemma is sought to be cleared by the present article.

The owner of the property has every right to alienate the same in any manner whatsoever he likes. No restrictions on his right can be imposed to alienate the said property. Even if the property has been transferred subject to a condition or limitation absolutely restraining the transferee from parting with or disposing of his interest in the property is void. Such like restrictions are imposed in the sale deed/conveyance deed executed by the local bodies or Govt. department regarding the residential plots/flats/industrial plot. The sole purpose of posing such restrictions on the use of the property is that nobody is able to convert a residential property into commercial or an industrial plot into a residential plot by carving out the sub-plots. Such like bodies are competent to impose such restrictions on the use of property. However, no restriction can be put on the right of alienation of the property. If such like restrictions are maintained and upheld, then, the purpose of ownership of a property will be rendered nugatory and otiose.

Section 10 of the Transfer of property act is reproduced as under :-

Section 10 of Transfer of Property Act prohibits putting of such like restriction on alienation of the property and the same is introduced as under:-

10. Condition restraining alienation.- Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: provided that property may be transferred to or for the benefit of a women (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.

According to this section, any condition, restraining the person from disposing his property is void. However, a question which frequently arises in the civil litigation is that if the person/ defendant disposes of or alienates the property in its entirety or in parts, then what are the consequences thereof. A lot of time is wasted in deciding this question by the courts. The questions, which arise are, as to whether the transferee pendent lite is to be impleaded as a party to the lis or not or whether any right is given to him to file a separate written statement or whether he can independently defend the said case.

Lis pendence viz a viz section 52 of Transfer of Property Act; comparative study;

The Indian legal jurisprudence is primarily based on the British legal jurisprudence. Most of the acts, now in force in India, were enacted during the period the British ruled India. The Transfer of Property Act, 1882 was brought on the statue book by the British Empire. Though, the provisions of entire TPA were not made applicable in the State of Punjab, yet, certain provisions were made applicable to the State of Punjab from time to time. It may be mentioned here that in England, there is no act governing the Transfer of Property. Certain principles and phrases are in vogue in England viz. Caveat Emptor, Lis pendence etc. which were applicable to the Transfer of property. Most of the case law is based on the sole premise of the interpretation of lis pendence given to it by our judiciary.

Generally, when the provisions of Transfer of Property Act are taught to the law students in a law college, it is usually said that Section 52 of the Transfer of Property Act contains the principles of lis pendence. In this section, it is nowhere provided that any alienation made during the pendency of any litigation shall be subject to the final outcome of the suit. The British people knew that there are certain deficiencies in the principle of lis pendence. To overcome the said short comings, they enacted section 52 of the Transfer of Property Act in an entirely different manner, then the interpretation of Phrase lis pendence, which governed Britain.

Section 52 of the Transfer of Property Act.

52. Transfer of property pending suit relating thereto.-During the 1[pendency] in any Court having authority 2[3[within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by 4[the Central Government] 5[* * *] of 6[any] suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

7[Explanation.-For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.]

For applicability of this section, the following requirements are essential.

i) There has to be a suit or proceedings pending.

ii) The said suit or the proceedings must be pending in any court, having authority within the limits of India. The word court has been defined in section 2 of CPC.

iii) The proceedings must not be collusive.

The word collusion has been defined by Hon’ble Supreme Court of India in “Sukhnandan Singh etc. v. Jamaiat Singh, AIR 1971 SC 1158” as under:-

“Collusion in judicial proceedings is normally associated with secret arrangement between two persons that one should in2stitute a suit against the other in order to obtain the decision of the judicial tribunal for some sinister purpose. In such a proceedings, the claim put forward is fictious, the contest feigned or unreal and the final adjudication, a mask, design to give false appearance of a genuine judicial determination and this is generally done with the object of confounding third parties. In such a proceedings, the contest is a mere sham.”

This rule was followed by Hon’ble Mr. Justice V.K. Jhanji, of Punjab and Haryana High Court in judgment “Ram Singh v. Sohan Lal, 1994(2) RRR 668“.

iv) Any right to immovable property is directly and specifically in question.

v) The property cannot be transferred or otherwise dealt with by any party to the suit or proceedings, so as to effect the rights of any other party, thereto under any decree or order, which may be made therein.

vi) The said alienation must be made under the authority of the court and on such terms as it may impose.

Thus, the bare reading of this section, does not in any way suggest that the alienation shall be subject to the final outcome to the suit. The moment a suit is filed regarding any immovable proprety, the restriction or alienation comes into force on the date of filing of the suit, for which no order of injunction is required to be passed by any court. The party, who intends to alienate the property or otherwise, alienate the property, transfer the property or deal with the property has to seek the permission of the court, where the suit is pending and the court may permit any such party to do so or such terms as it may impose.

There are few judgments of Punjab and Haryana High court, which have applied the principles laid down in section 52 Transfer of Property Act in its true letter and spirit. Hon’ble Mr. Justice Ashok Bhan (as his lordship then was) has observed in Sunita Jain v. Chander Kanta, 1996 (1) RRR 331 as under:-

“8. I have ordered that the property be transferred only after taking possession from the court and bringing on record the proposed vendees, in order to bind them to the decree which may ultimately be passed in the suit, to safeguard the interest of both the parties, which under the facts and circumstances of the present case, is just and proper.”

Similarly, Hon’ble Justice Mr. V.K.Jhanji, in case “Kusum Tondon v. Kanwal Tondon, 1997(2) RCR (Civil) 364” has gone a step further and has held that

“However, in order to protect the interest of appellants, if any, in that suit, it is ordered that in case the respondents alienate the property, they would make aware the vendee about the pendency of litigation by making a mention of the same in the sale deed.”

However, the said procedure is not being followed. Application for injunction for restraining the alienation of property remains pending for years together, resulting into first appeal, revision and SLP to the Supreme Court of India. Any such proceedings are not required in view of the provisions of section 52 of the Transfer of Property Act are applied in its true sense to any such proceedings or suits. It is often observed in the judgements that alienation if any, will be subject to the principle of lis pendence.

Consequences of alienation:-

A defendant may feel frustrated by the long pendency of the suit. Out of sheer frustration or just to complicate the matters, he alienates the property to third person after suppressing the fact of the pendency of the litigation. Sometime, the transferee pendent lite comes to know about the proceedings only when the summons in the execution are served on him. He shocked like hell. His entire savings in purchasing the property come at a stake.

The Hon’ble Supreme Court of India in the judgement in case Civil Appeal No. 10325 of 2010 (Arising out of SLP Civil) No.163 of 2010) decided on 08.12.2010 in case title “T.G. Ashok Kumar v. Gobindammal and other“, in para no.13 has held as under:-

It is necessary to refer to the hardship, loss, anxiety and unnecessary litigation caused on account of absence of a mechanism for prospective purchasers to verify, whether a property is subject to any pending suit or a decree or attachment. At present, a prospective purchaser can easily find out about any existing encumbrance of a property either by the inspection of the Registration Registers or by securing a certificate relating to encumbrances (i.e. copies of the entries in the registration registers from the jurisdictional Sub-Registrar under section 57 of the Registration Act, 1908). But a prospective purchaser has no way of ascertaining whether there is any suit or proceeding pending in respect of the property, if the person offering the property for sale does not disclose it or deliberately suppresses the information. As a result, after parting with the consideration (which is many times the life time savings) the purchaser gets a shock of his life, when he comes to know that the property purchased by him a subject to litigation and that it may drag on for decades and ultimately, deny him title to the property. The pendente lite purchaser will have to wait for the litigation to come to an end or he may have to take over the responsibility of conducting the litigation, if the transferor loses interest after the sale………

The Apex court of India has aptly described the condition of the transferee pendent lite, when he is duped by the defendant by selling the property which is subject matter of litigation.

Amendments made in the State of Maharashtra and Gujrat in section 52 of Transfer of Property Act.

In the State of Maharashtra and Gujrat, an amendment was made to Section 52 of the Act, by adding sub-section 2, which provides as under:-

“2: Every notice of pendency of a suit or proceedings referred to in Sub-Section-1 shall contain the following particulars namely:-

(a) The name and address of the owner of the immovable property or any other person, whose right to immovable property in question;

(b) The description of the immovable property, the right to which is in question;

(c) The court in which the suit or proceedings is pending;

(d) Nature and title of the suit or proceedings, and;

(e) The date on which, the suit or proceedings was instituted.

The Hon’ble Supreme Court of India, expressed the hope that Law Commission and the parliament ought to consider the incorporation of such amendments or suitable amendments in section 52 of TPA to cover the existing void in title verifications or due diligence procedures. Nothing has been done so far by the Law commission or by the Central Government to comply with the directions given by the Apex Court of India till date. Provisions can also be made for compulsory registration of the decrees and in regard to attachment of immovable properties.

In Punjab, if an entry is made in the Municipal or revenue record maintained by a local authority, regarding the above said particulars, an unwary purchaser will stay his hands in purchasing any such property and invest his life time earnings and feels cheated thereafter.

A lot of litigation will be curtailed which is pending in the courts in Punjab in this regard.

Till date, no amendment has been made either by the Central Govt. or by the State of Punjab in section 52 of the Transfer of Property Act in consonance with sub-section (2) inserted by them on the statue book.

Serious Action:-

A serious action for disobedience of the provisions of section 52 under order 39 rule 2 A CPC, ought to be taken by imposing punishment on the seller as provided therein. It has also been noticed that in the registration manual, at the time of registration of sale deed, the Sub Registrar requires that an entry should be made in the document to the effect that no case is pending in any court of law in India regarding the said property. Most of the time, the sellers conceal this fact about the pendency of the case by inserting a false recital. A criminal case ought to be taken against such unscrupulous persons in a quick manner to reduce the frauds being committed by them.

The judicial view that in proceedings for taking action for disobedience of injunction, the plaintiff is required to prove the case beyond all reasonable doubts, just like a criminal case. It is humbly submitted that proceedings under order 39 rule 2A CPC or disobedience of injunction are not criminal proceedings but are provided in the court of Civil Procedure. In civil cases, the case is decided on the basis of preponderance of probabilities while a criminal case has to be proved beyond any shadow of doubt. In the cases, regarding alienation of the property only documentary evidence is sufficient to prove the breach of injunction and no oral other evidence is required to be led. In case, the courts will take a strict penal action against persons who disobey such order, the majesty of law will be upheld. No one will dare to take the law lightly.

Rights of the Transferee Pendente Lite:–

Once the property is sold during the pendency of litigation, various contingencies come into existence between the parties to the suit and transferees pendent lite which are discussed hereinafter:-

1) Impleadment of Transferee Pendente lite. There is a divergent view taken by various courts, as to whether the transferee pendent lite has to be impleaded as a party to the suit or not. In case, the transferee pendent lite is impleaded as a party, then, notice is sent to him, which again leads to unnecessary prolonging of litigation. Who has to make an application for impleadment of the transferee pendent lite as a party to the suit, is also a matter of dispute.

2) Rights of the Transferee pendent lite. Here, again there are divergent views are taken by the various court, as to whether the transfer pendent lite has to be given an opportunity to file a written statement or not. This is also one of the bone of contention as to what plea can be taken by the transferee pendent lite in the written statement. In most of the judgments, it has been held that he cannot take a plea which was not originally taken by the defendant in a suit, who has made the alienation. It is said that he is to swim and sink along with original defendant. Whether, the transferee pendent lite ought to be given an opportunity to cross examine the witness already examined and to cross examine the witnesses a fresh.

3) Plea of bonafide purchaser:- Filing of the suit is a notice to the entire world. No person can feign ignorance regarding the pendency of the suit. Otherwise in view of the explanation attached in section 52 of the Transfer of Property Act, a suit is deemed to have been commenced from the date of presentation of the plaint or institution of the proceedings in a court of competent jurisdiction, if the date of alienation, is after the presentation of the plaint, then, he is dubbed as transferee pendent lite.

I am already sent a representation to the State of Punjab for making asuch amendment on the lines of the amendment made by State of Mahrashtra and Gujrat, be also made applicable to Punjab.

The true and correct interpretation of section 52 as suggested above, will reduce the number of cases, pending before the Civil courts on account of the illegal alienation made by the unscrupulous defendant to dupe the innocent and unwary purchasers. Even the criminal litigation on the ground of fraud will also come to an end, will also be minimum, as in case, if an entry is made in the records, regarding the pendency of the case, then, no person will purchase the property and involve himself in litigation.

It is also settled principle of law that in case there is no express provisions contained in the act, then, the court invoking the inherent powers u/s 151 of the Code of Civil Procedure, can pass order on the first date of hearing that an entry regarding the pendency of the suit or proceedings shall be made in the concerned record and impose such conditions as contained in section 52 of TPA, so that the innocent purchaser is not involved in uncalled for litigation.

Conclusion:-

In the end, it is humbly suggested that the followings steps ought to be taken by the courts while disposing of the application for injunction seeking the relief of alienation;

a) The seller ought to take permission from the court to sell the property.

b) The seller ought to bring the proposed purchasers on the court file, as parties to the suit.

c) The seller ought to make a recital in the Transfer Deed about the pendency of the case.

d) Any other condition, which may be imposed by the court viz. deposited of the sale consideration in court, so that if the defendant is found entitled to the property in suit, he can be suitably compensated and does not have take resort to separate proceedings for the same.

[1*] The author passed degree in Master of Laws from the Panjab University Chandigarh in the year 1978. He has been practicing on civil side at Ludhiana. He has been a guest professor in Panjab University Regional Centre, Ludhiana. The author has written various articles, which have been published in the journals. The author has also addressed various webinars on facebook/youtube on various legal aspects to enlighten the younger generation. He had judged various moot competitions held in PURC, Ludhiana. Contact No. 9814712425, email: advocateajayjindal@gmail.com, Ch.No.425, 4th Floor, Advocates Complex, District Courts, Ludhiana, Punjab.

[2*] The co-author started visiting the courts since may, 2011 and completed his law graduation from Panjab University, Chandigarh and is regularly doing practice on Civil Side. Email:-Abhayjindal14@yahoo.co.in, M No. 9814912425

Where there is a will, there are relatives

A Will or testament is a legal document that expresses a person’s (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution. It is an instrument in which a person specifies his intention and desire to be applied in the management and distribution of his estate after his death. At Common Law, an instrument disposing of Personal Property was called a “testament,” whereas a Will disposed of real property. Over time the distinction has disappeared so that a Will, sometimes called a “last will and testament,” disposes of both real and personal property.

The term Will has been defined in Blacks Dictionary as – “The legal expression of an individual’s wishes about the disposition of his or her property after death; esp., a document by which a person directs his or her estate to be distributed upon death”. Collins Dictionary explains – “Will as the declaration of a person’s wishes regarding the disposal of his or her property after death”. Webster Dictionary defines it as – “a legal declaration of a person’s wishes regarding the disposal of his or her property or estate after death especially: a written instrument legally executed by which a person makes disposition of his or her estate to take effect after death”.

Thus, a Will is an instrument which leaves the estate of the person, who signed the Will, to named persons or entities (beneficiaries, heirs, legatees), including portions or percentages of the estate, specific gifts, creation of trusts for management and future distribution of all or any portion of the estate.

Though it has, at times, been thought that a “Will” historically applied only to the real property, while “Testament” applied only to the personal property, (thus giving rise to the popular title of the document as “last Will and Testament”), however over the times, the terms have been used interchangeably. Thus, the word “Will” validly applies to both the personal and the real property.

Throughout most of the world, disposal of an estate, of a deceased has been a matter of social custom, but originally, it was a device intended solely for men who died without an heir i.e. intestate. The English phrase “Will and Testament” is derived from a period in English law, when Old English and French laws were used side by side, for maximum clarity.

Under the Indian Succession Act 1925, a Will is a legal declaration of the intention of the testator, with respect to his property which he desires to be carried into effect after his death. After the death of a person, his property devolves in two ways – according to his Will i.e. testamentary, or according to the respective laws of succession, when no Will is made. In case an individual dies intestate (no Will is made), the laws of succession come into play.

The testamentary succession is governed as per provisions of the Indian Succession Act, 1925, even in case of Hindus. However, the rules relating to the intestate succession, even for Hindus, are applicable as per the Hindu Succession Act, 1956.

It may also be mentioned that in the case of Muslims, the Indian Succession Act, 1925 is not applicable, to both the testamentary and intestate succession, as in their case, the succession is on the basis of the Uncodified law, which is based on Quran and other applicable laws and customs.

A Will serves a variety of important purposes. It enables a person to select his heirs, rather than allowing the State laws of descent and distribution to choose the heirs, who, although blood relatives, might be people the testator dislikes, or with whom he is unacquainted, or in some circumstances, where the property remains unclaimed, for want of any heirs, the same is taken over by the State as escheat. It also allows a person to decide which individual could best serve as the executor of his estate, distributing the property fairly to the beneficiaries while protecting their interests, rather than allowing a court to appoint a stranger to serve as administrator.

A valid Will cannot exist unless three essential elements are present. First, there must be a competent testator; Second, the document purporting to be a Will must be the honest expression of the testator’s intention; Third, it must be clear that the testator intended the document to have the legal effect of a Will and be acted upon after as such after his death.

Under Section 18 of the Registration Act, 1908, the registration of a Will is not compulsory, and merely because of non-registration of the Will an inference cannot be drawn against its genuineness or validity. However, once a Will is registered, it forms a strong legal evidence that the proper parties had appeared before the registering officers, and the latter had attested the same after being satisfied of its registration procedure. Though the Will can also be registered after the death of the testator under section 40 of the Registration Act, but the same shall not add any useful benefit for the purpose of proving its due execution and authenticity.

In general, a Will made by the testator can be revoked at any time during his lifetime, and testator can even choose to make any alteration or make any other person as his legatee. There may be instances where a testator wishes to carry out some alterations in the Will, then he can make the required and necessary amendments in the prepared Will. The subsequent/supplementary document so prepared is known as a Codicil. A person, as the testator, has power to make instrument of Will, repeatedly and unenumerable times, revoking the earlier Will or changing the beneficiaries, or making any type of amendments therein, but it is always the last Will of testator which would prevail.

The Will, unlike any other document, is enforceable only after the death of the testator. Therefore, it is popularly called that the Will is the only document that speaks from the grave of the testator and where the person who intends to distribute his blessings and assets in a particular way is not there to endorse and prove the same. Accordingly, the existence, the due execution and validity of the Will is gathered from the circumstances. The initial burden to prove all these essentials with regard to due execution of a Will rests upon the person who propounds the same.

The party propounding a Will, or otherwise making a claim under a Will, is no doubt seeking to prove a document, and that too when the executor of the same is no more ,thus in proving the same , the relevant statutory provisions of Indian Succession Act ,1925, and Indian Evidence Act, become operative.

According to the Indian Succession Act, there are basically two types of Will. Privileged Will and Unprivileged Will. Privileged Wills are those that can be made by members of the armed forces employed in an expedition or engaged in actual warfare, and can be made in oral form as well. Unprivileged Wills are the Wills that can be created by every person, other than those who can create a Privileged Will.

The Relevant Law.

Section 63 in The Indian Succession Act, 1925.

63 Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 12 [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules: –

(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

Section 68 of The Indian Evidence Act, 1872.

Section 68– Proof of execution of document required by law to be attested.-If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

Though the provisions relating to the execution of a Will appear to be very simple, yet all the ingredients are required to be strictly proved, by dispelling all the suspicious circumstances, that may prick the conscious of the court. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator.

The following are the requisite and necessary factors, which have to be kept in mind while ascertaining, the due execution and validity of a Will.

• According to Section 63 of the Indian Succession Act, a Will needs to be attested by two or more witnesses, each of whom must have seen the testator sign or affix his mark to the `Will‘ and further, each of the witnesses to the `Will‘ should have signed the `Will‘ with the requisite Animus Attestandi.

• Likewise, according to Section 68 of Indian Evidence Act, a document required by law to be attested has to be proved by calling for the purpose of proving its execution at least one attesting witness. Thus, is it incumbent that:

• The Propounder of the `Will‘ has to prove that the `Will‘ was signed by the testator in the presence of two attesting witnesses;

• The attesting witnesses should have seen the testator sign the `Will‘ or else, the attesting witnesses should depose that they were told by the testator that the `Will‘ is that of the testator and the testator had signed the `Will‘; and,

• It is not necessary that both or all the attesting witnesses to the `Will‘ must be examined to prove the `Will‘, but, at least one attesting witness should be called to prove the due execution of the `Will‘.

Whether a particular `Will‘ is surrounded by suspicious circumstances or not is a question of fact, and depends upon the facts and circumstances of each case. Where the execution of a `Will‘ appears to be surrounded by suspicious circumstances, the Propounder has to explain all these circumstances, and has to remove the suspicion in the mind of the Court, in order to satisfy its conscience.

A thumb mark of the testator instead of his usual signature, a feeble mind, proof of his being a person of an unsound mind, undue influence upon the testator at the time of execution, an unfair and unjust disposition of property, apart from the propounder himself taking a leading part in the execution of the `Will‘, under which he himself is a beneficiary, may be termed as some of the suspicious circumstances. All the suspicious circumstances, in due execution of the `Will‘ have to be removed by the propounder of the `Will,’ before the same can be accepted as legal and valid and be acted upon. Once the propounder is able to dispel all the suspicious circumstances, the onus of the same shifts upon the other party asserting it to be so, and challenging the execution thereof.

A Constitution Bench of the Supreme Court in Shashi Kumar Banerjee and others v. Subodh Kumar Banerjee since deceased and others AIR 1964 SC 529 has held:

“The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426 and Rani Purniama Devi v. Khagendra Narayan Dev, (1962) 3 SCR 195. The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator’s mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator’s mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested.”

Again, in Gorantla Thataiah v. Thotakura Venkata Subbaiah and others in 1968 AIR SC 1332 the Supreme Court reiterated the rule as laid down in Fulton v. Andrew, (1875) 7 HL 448 whereby it was held that “those who take a benefit under a will, and have been instrumental in preparing or obtaining it, have thrown upon them the onus of showing the righteousness of the transaction”. It was held that:

“There is however no unyielding rule of law (especially where the ingredient of fraud enters into the case) that, when it has been proved that a testator, competent in mind, has had a will read over to him, and has thereupon executed it, all further enquiry is shut out”. In this case, the Lord Chancellor, Lord Cairns, has cited with approval the well-known observations of Baron Parke in the case of Barry v. Butlin, (1838) 2 Moo PC 480 at p. 482. The two rules of law set out by Baron Parke are: “first, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator”; “the second is, that, if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court and calls upon it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.”

Further in Janki Narayan Bhoir v. Narayan Namdeo Kadam 2003 RCR (1)(Civil) 409 Supreme Court held that, Section 68 of the Indian evidence act necessitates that a document in the shape of a “Will‘ which is required by law to be attested shall not be used as evidence, until and unless, at least one attesting witness to that document has been called in evidence for the purpose of proving its execution. Thus, according to the mandate of Section 68, if there is an attesting witness to a document, alive and capable of giving evidence, then that attesting witness, subject to the process of the court, has to be necessarily examined before the document required by law to be attested can be used as evidence. Where one attesting witness examined to prove the Will under Section 68 of the Evidence Act fails to prove the due execution of the Will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness, there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.

It was further held in Ganesan (D) Through Lrs. v. Kalanjiam and Others 2019(3) RCR (Civil) 843:

“5. The appeals raise a pure question of law with regard to the interpretation of Section 63 (c) of the Act. The signature of the testator on the will is undisputed. section 63 (c) of the Succession Act requires an acknowledgement of execution by the testator followed by the attestation of the Will in his presence. The provision gives certain alternatives and it is sufficient if conformity to one of the alternatives is proved. The acknowledgement may assume the form of express words or conduct or both, provided they unequivocally prove an acknowledgement on part of the testator. Where a testator asks a person to attest his Will, it is a reasonable inference that he was admitting that the Will had been executed by him. There is no express prescription in the statute that the testator must necessarily sign the will in presence of the attesting witnesses only or that the two attesting witnesses must put their signatures on the will simultaneously at the same time in presence of each other and the testator. Both the attesting witnesses deposed that the testator came to them individually with his own signed Will, read it out to them after which they attested the Will.”

Thus, what may constitute to be a valid Will depends upon the facts and circumstances of each case and evidence led in the matter. It is sine qua non for the propounder of the Will to show, by way of satisfactory evidence that the Will was signed by the testator; and at that time he was in as sound and disposing state of mind; that he understood the nature and effect of disposition; and had put his signature to the document of his own free volition. If the Will is surrounded by suspicious circumstances, such as the alleged signature on the Will by the testator may be shaky and doubtful or indications that the testator’s mind may appear to be very feeble or the testator may appear to be not of fully sound disposing mind, in that circumstance, the propounder will be called upon to dispel all the suspicious circumstances.

However, what may be a suspicious circumstance in one case may not be so in the other case. Each situation depends on the facts and circumstances of its own case. Disinheritance of natural heir, unequal distribution of assets, love and affection may be asserted as some more suspicious circumstances, but then the fact remains that the very purpose of `Will‘ is to change the natural line of succession. Thus, the mere fact that natural heirs are not given anything in the Will, or there is an unequal distribution of the assets among the heirs or siblings, would not de-facto make the same as a suspicious or an invalid and unenforceable document. The person challenging the same has to duly prove and show it to be surrounded by suspicious circumstances, that are enough to discard its authenticity.

The circumstances may so arise where a Will so propounded has not been used on purpose, or was not within the knowledge of the propounder or has not seen the light of the day for a period of more than 30 years for any reason, whether in these circumstances the propounder can be allowed to take an advantage of section 90 of the Indian evidence act to say that since it’s a 30-year-old document and therefore it is authentic. The answer to such a question is `No’ as such a presumption shall not apply in the case of a Will as was so held so in 2020 (1) CCC 513.

A Will so executed by the testator is liable to be revoked or altered anytime, till the time the executant is alive and is competent to dispose of his property. A testator who wishes to revoke his original Will, which is executed by him on a particular date, can do so by revoking the Will himself, by merely writing a subsequent Will, or alter the same by writing a Codicil, duly executed, and even by destruction of the previous Will. However as has been stated in the preceding paragraphs only the last Will of the testator would be treated as operative.

At this stage, it may also be pertinent to mention a few words about another form of Will -Holographic Will. A holographic Will is a Will and testament, which is a holographic document, i.e., it has been entirely handwritten and signed by testator. Although the probity and authenticity of such a handwritten Will, himself by the testator is of course on a much higher pedestal, but like any other Will, even in case of a holographic Will, it has to be proved that:

• There must be evidence that the testator actually created the Will, which can be proved through the statements of witnesses, handwriting experts, or other methods.

• The testator must have had the intellectual capacity to write the Will, although there is a presumption that a testator had such capacity unless there is evidence to the contrary.

• The testator must be expressing a wish to direct the distribution of his or her estate to beneficiaries.

However, we must hasten to add that the statutory requirements, stipulated under Section 63 of the Indian Succession act and also Section 68 of the Indian Evidence Act, have to be fully and duly complied with, even in case of a holographic Will, before it can be acted upon.

In this context it would be relevant to notice a few observations made by the Apex Court in the case of Mrs. Joyce Primrose Prestor (Nee Vas) v. Miss Vera Marie Vas & Ors, JT 1996 (4), 333:

12. while the presumption in the case of ordinary Wills is as stated above, in the case of “holograph Wills“, the presumption is all the more – a greater presumption. Ex.P-1 is a “holograph will”. It is one which is wholly in the handwriting of the testator. The Calcutta High Court in Ajit Chandra Majumdar v. Akhil Chandra Majumdar (AIR 1960 Cal. 551 at P. 552) stated about such a Will, thus: –

“The whole of this Will was written in the hand by the testator himself in English. The handwriting is clear and firm. The law makes a great presumption in favour of the genuineness of holograph will for the very good reason that the mind of the testator in physically writing out his own will is more apparent in holograph will than where his signature alone appears to either a typed script or to a script written by somebody else.”

Further, it would be appropriate to notice that although, it is the general principle of law of Wills that the testator can not impose conditions or restrictions in the Will at the time of execution of the document, and any such conditions or covenants shall be treated to be a nullity, as taken in the totality of the document, yet there may be some circumstances where a covenant is included at the time of execution of the Will.

In Mohammad Raza and others v. Mt. Abbas Bandi Bibi AIR 1932 Privy Council 158 the Privy Council confirmed the judgment of the Chief Court of Oudh which had ruled that when a person is allowed to take property under a conditional family arrangement, he cannot be heard to complain against the restriction on alienation of the property outside the family.

It may also be pertinent to refer to a relevant portion of Sections 131 and 138 of The Indian Succession Act:

“Section 131. “Bequest over, conditional upon happening or not happening of specified uncertain event.

(1) A bequest may be made to any person with the condition superadded that, in case a specified uncertain event shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person”

“Section 138: Direction that fund be employed in particular manner following absolute bequest of same to or for benefit of any person– Where a fund is bequeathed absolutely to or for the benefit of any person, but the Will contains a direction that it shall be applied or enjoyed in a particular manner, the legatee shall be entitled to receive the fund as if the Will had contained no such direction”

Laying the distinction between the two provisions it was held in Suresh Chand Mathur v. Harish Chand Mathur 2010 (30) RCR (Civil) 478 (Delhi)

“This section (Section 131) deals with a defeasance clause, whereas Section 138 of the Act deals with a repugnant clause. The distinction behind a repugnant provision and a defeasance provision is that where the intention of the Testator is to maintain an absolute estate conferred on the legatee, but he simply adds some restriction, in derogation of incidents of such absolute ownership, such restrictive clause would be repugnant to the absolute grant and, therefore void, but, where the grant of an absolute estate is expressly or impliedly made subject to defeasance o the happening of a contingency and where the effect of such defeasance would not be a violation of any rule of law, the original estate is curtailed and the gift over is taken to be valid and operative. Section 138 thus provides for divestment of the estate which has already vested, but is subject to divested by some act or event at an after period. Of course, the defeasance must be in favour of somebody in existence at the time the bequest is made”

The Supreme Court in K. Naina Mohamed v. A.M. Vasudevan Chettiar 2010 (7) SCC 603, while examining the principles of English law on the issue of imposing a restriction on the Will, has held that the restriction which was meant to ensure that the property bequeathed by Smt. Ramakkal Ammal does not go into the hands of third party was perfectly valid and did not violate the rule against perpetuity evolved by the English Courts, or the one contained in Section 114 of the Indian Succession Act, 1925.

Further more, where a bequest is made to a person by a particular description, and there is no person in existence at time of the testator’s death, who answers that description, the bequest is void. S.113 of Indian Succession Act, 1925 provides that for a transfer to an unborn person, a prior interest for life has to be created in another person, and the bequest must comprise of whole of the remaining interest of the testator.

Thus what transpires from the above is that while the basic purpose of the Will is to honour the wishes of the deceased executor, with regard to his asset distribution, but what is most crucial of all is that the same have to be beyond all suspicious circumstances, with a clear intention of the executant, in a sound disposing mind. In order to constitute a sound disposing mind, a testator must not only be able to understand that he is, by his Will, giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom, by his Will, he is excluding from all participation in that property. All this has to be done out of his free volition and without any influence and also without there being any element of fraud. There is one clearly distinguishing feature for the proof of Will than the other documents. As the Will, unlike other documents speaks from graveyard of the testator, and when the same is propounded or produced before the court, the testator has already departed from the world and has no comments to offer as to whether it is his duly executed Will, signed by him out of his own free volition and without any undue influence or not.

In a situation like this, it is for the court to prick its conscience to find out if the `Will‘ was executed willfully.

(The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

Plea of adverse possession can be used both as an offence and as a defence i.e. both as sword and as a shield.

History of Adverse possession:-

Historically, adverse possession is a pretty old concept of law. The concept of adverse possession appeared in the Code of Hammurabi approximately 2000 years before Christ era. Law 30 contained a provision “If a chieftain or a man leaves his house, garden, and field …. and someone else takes possession of his house, garden and field and uses it for three years; if the first owner returns and claims his house, garden, and field, it shall not be given to him, but he who has taken possession of it and used it shall continue to use it.” However, there was an exception to the aforesaid rule: for a soldier captured or killed in battle and the case of the juvenile son of the owner. In 1639, the Statute of Limitation fixed the period for recovery of possession at 20 years. The Statute of Tenures enacted in 1660 ended the feudal system and created the concept of the title. The adverse possession remained as a part of the law and continue to exist. The doctrine of adverse possession arose in an era where lands were vast particularly in the United States of America and documentation sparse in order to give quietus t the title of the possessor and prevent fanciful claims from erupting.

Human rights have been historically considered in the realm of individual rights such as, right to health, right to livelihood, right to shelter and employment etc. but now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context.

Adverse possession has not been defined in any statute.

The statute does not define adverse possession, it is a common law concept, the period of which has been prescribed statutorily under the Limitation Act, 1963. Modern statutes of limitation operate, as a rule, not only to cut off ones right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title.

Section 27 of the Limitation Act, 1963 provides “Extinguishment of Right to property: At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished”. Article 65 of the Limitation Act, 1963 reads as :-

Under Article 65 of the Limitation Act, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed.

What is “adverse possession” and on whom the burden of proof lies and what should be the approach of the Courts while dealing with such plea have been the subject-matter of a large number of cases.

An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner, i.e., with the intention of excluding all persons from it, including the rightful owner, he is in adverse possession of it. Where possession could be referred to a lawful title it shall not be considered to be adverse.

Adverse possession is of two kinds. (A) Adverse from the beginning or (B) that become so subsequently. If a mere trespasser takes possession of A’s property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A’s bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitles the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property although the true owner is ignorant of the adverse possessor being in occupation.

The plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed.

In order to prove the plea of adverse possession, the first requirement is (a) Actual Possession for the twelve-year period. To succeed, the acts of possession must be open, notorious, peaceful, adverse, exclusive, actual and continuous. If any one of these elements is missing at any time during the statutory period, the claim for possessory title will fail.

Possession must be open and notorious, not clandestine, for two reasons. First, open possession shows that the claimant is using the property as an owner might. Second, open possession puts the true owner on notice that the statutory period has begun to run. Because the doctrine of adverse possession is based on the true owner’s failure to take action within the limitation period, time should not run unless the delay can fairly be held against the owner.

The element of adversity means that the claimant is in possession without the permission of the owner. If the claimant acknowledges the right of the true owner then the possession is not adverse. The nature of the acts needed to establish possession depends on the type of property. For some types of property, even intermittent use will satisfy the element of continuity. The sufficiency and character of the possession necessary to pass title must be considered and tested in the light of the circumstances which surround each particular case. Acts which amount to possession in one case may be wholly inadequate to establish it in another. Matters such as the nature of the property, the appropriate and natural uses to which it can be put, the course of conduct which the owner might reasonably be expected to adopt with a due regard to his own interests, are all matters to be considered in evaluating the adverse possession which has been proved to have been exercised by a trespasser or successive trespassers.

The law in respect of adverse possession, therefore, is now well settled. It should be nec vi nec clam nec precario i.e. peaceful, open and continuous. (Secretary of State for India v. Debendra Lal Khan, AIR 1934 PC 23, page 25). This decision has been referred and followed by in P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314 (para 4). Court further says that the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. In Chhote Khan & others v. Mal Khan & others AIR 1954 SC 575, Court observed that no question of adverse possession arises where the possession is held under an arrangement between the co-sharers. The possession of one co-heir is considered, in law, as possession of all the co-heirs. It is settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.” In Darshan Singh v. Gujjar Singh (2002) 2 SCC 62, held: “… It is well settled that if a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse for other co-sharers unless there has been an ouster of other co-sharers.” In S.M. Karim v. Mst. Bibi Sakina, AIR 1964 SC 1254, it has been ruled that adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. In Karbalai Begum v. Mohd. Sayeed (1980) 4 SCC 396 in the context of a co-sharer, it was held: “It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession.”A three-Judges Bench in Parsinnin v. Sukhi (1993) 4 SCC 375, laid down the following three requisites for satisfying the claim based on adverse possession:”Party claiming adverse possession must prove that his possession mast be “nee vi nee clam nee precario” i.e. peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner.” In Vidya Devi v. Prem Prakash (1995) 4 SCC 496, held: … it will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. In A.S. Vidyasagar v. S. Karunanandam, 1995 Supp (4) SCC 570, Court has held that permissive possession is not adverse possession and can be terminated at any time by the rightful owner. In Thakur Kishan Singh v. Arvind Kumar, AIR 1995 SC 73, Court said: “A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession.”In Parwatabai v. Sona Bai, 1996 (10) SCC 266, it was stressed upon the Court that to establish the claim of adverse possession, one has to establish the exact date from which adverse possession started. A person pleading adverse possession has no equities in his favour since he is trying to defeat the right of the true owner and, therefore, he has to specifically plead with sufficient clarity when his possession became adverse and the nature of such possession. In Karnataka Board of Wakf v. Government of India & others (2004) 10 SCC 779, Court held that whenever the plea of adverse possession is projected, inherent therein is that someone else is the owner of the property. “The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.” The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. In Saroop Singh v. Banto and others, 2005 (8) SCC 330, Court held “Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. In T. Anjanappa and others v. Somalingappa and another 2006 (7) SCC 570, the pre-conditions for taking plea of adverse possession has been summarized as under: “It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent to as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action. “In P.T. Municipal Reddy & Ors. v. Revamma & Ors. AIR 2007 SC 1753, it was held: “It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner.” “Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.”

Modern statutes of limitation operate, as a rule, not only to cut off one’s right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. “Therefore, to assess a claim of adverse possession, two pronged enquiry is required: 1. Application of limitation provision thereby jurisprudentially “willful neglect” element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property” in P.T. Munichikkanna Reddy v. Revamma, 2007(2) R.C.R.(Civil) 847 held” Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. In Annakili v. A. Vedanayagam and others, AIR 2008 SC 346, Court pointed out that a claim of adverse possession has two elements (i) the possession of the defendant becomes adverse to the plaintiff; and (ii) the defendant must continue to remain in possession for a period of 12 years thereafter. “Animus possidendi” is held to be a requisite ingredient of adverse possession, well known in law. Court held: “It is now a well settled principle of law that mere possession of the land would not ripen into possessor title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title.” In Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale and others, JT 2009 (5) SC 395, Court said:” for claiming title by adverse possession, it was necessary for the plaintiff to plead and prove animus possidendi. A peaceful, open and continuous possession being the ingredients of the principle of adverse possession as contained in the maxim nec vi, nec clam, nec precario, long possession by itself would not be sufficient to prove adverse possession.” in the case of Roop Singh v. Ram Singh, AIR 2000 SC 1485 has held thus; “mere possession for a long time does not result in converting permissive possession into adverse possession“. In Amarendra Pratap Singh v. Tej Bahadur Prajapati and others, AIR 2004 SC 3782 : (2004) 10 SCC 65, held “What is adverse possession” Every possession is not, in law, adverse possession. Under Article 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of 12 years calculated from the date when the possession of the defendant becomes adverse to the plaintiff. By virtue of Section 27 of the Limitation Act, at the determination of the period limited by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter’s title. It is that extinguished title of the real owner which comes to vest in the wrongdoer. The law does not intend to confer any premium on the wrong doing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and re-enter into possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. Inaction for a period of 12 years is treated by the Doctrine of Adverse Possession as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession. In L.N. Aswathama & another v. V.P. Prakash, JT 2009 (9) 527, held: To establish a claim of title by prescription, that is adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence.” State of Haryana v. Mukesh Kumar and others, (2011)10 SCC 404 held “A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to clearly plead and establish all facts necessary to establish adverse possession. The right to property is now considered to be not only constitutional or statutory right but also a human right. Human rights have already been considered in realm of individual rights such as right to health, right to livelihood, right to shelter and employment etc. But now human rights are gaining a multi faceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context. The Parliament may consider abolishing the law of adverse possession or at least amending and making substantial changes in law in the larger public interest. The Parliament must seriously consider at least to abolish “bad faith” adverse possession, i.e., adverse possession achieved through intentional trespassing. In case, the Parliament decides to retain the law of adverse possession, the Parliament might simply require adverse possession claimants to possess the property in question for a period of 30 to 50 years, rather than a mere 12. In Chatti Konati Rao & Ors. v. Palle Venkata Subba Rao, 2011(2) R.C.R.(Civil) 824 held” mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within twelve years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Tribhuvanshankar v. Amrutlal 2014(2) SCC 788 : 2014(1) RCR(Civil) 206 “The conception of adverse possession fundamentally contemplates a hostile possession by which there is a denial of title of the true owner. Possession to be adverse has to be actual, open, notorious, exclusive and continuous for the requisite frame of time as provided in law so that the possessor perfects his title by adverse possession. In the case of Ram Nagina Rai & Anr. v. Deo Kumar Rai (Deceased) by LRS. And Anr. 2018(10) Scale 630, the Apex Court has held thus; “Article 65 presupposes that limitation starts only if the defendants prove the factum of adverse possession affirmatively from a particular time. Adverse possession means a hostile assertion, i.e. a possession which is expressly or impliedly in denial of the title of the true owner. The person who bases his title on adverse possession must show, by clear and unequivocal evidence, that the possession was hostile to the real owner and it amounted to the denial of his title to the property claimed. In deciding whether the acts alleged by the person constitute adverse possession, regard must be given to the animus of the person doing such acts, which must be ascertained from the facts and circumstances of each case. “The said settled law has been reiterated by Supreme court in Mallikarjunaiah v. Nanjaiah & Ors., 2019(3) RCR(Civil) 12; there was no element of either adversity or/and hostility between two co-owners/brothers because in a dispute of this nature where both the parties are related to each other, the possession of one is regarded to be the possession of other unless the facts show otherwise” it is a settled principle of law that mere continuous possession howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner the burden to prove the adverse possession is upon the person, who had set up this plea; In Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors., 2019(4) R.C.R. (Civil) 1 has held : The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Animus possidendi under hostile colour of title is required. Trespasser’s long possession is not synonymous with adverse possession. Trespasser’s possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. The matter has been examined by a Constitution Bench in M. Siddiq (D) through LRs v. Mahant Suresh Das & Ors., (2019) SCC OnLine SC 1440 wherein, it has been held that a plea of adverse possession is founded on the acceptance that ownership of the property vests in another, against whom the claimant asserts possession adverse to the title of the other. In a reference made to a larger Bench in the case of Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors., Civil Appeal No.7764 of 2014, decision dated 07.08.2019, the larger Bench had held that the plea of adverse possession can be used both as an offence and as a defence i.e. both as sword and as a shield. once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit. Resultantly, we hold that decisions of Gurudwara Sahab v. Gram Panchayat Village Sirthala (supra) and decision relying on it in State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj (supra) and Dharampal (dead) through LRs v. Punjab Wakf Board (supra) cannot be said to be laying down the law correctly, thus they are hereby overruled. We hold that plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights of a plaintiff. Law of limitation does not define the concept of adverse possession nor anywhere contains a provision that the plaintiff cannot sue based on adverse possession. It only deals with limitation to sue and extinguishment of rights. The law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.

Thus adverse possession is boon for person in possession and claiming to have become owner by way of adverse possession and curse for the real owner.

Happy neighbors are all alike, every unhappy neighbor is unhappy in its own way. That unhappiness often finds its painful way into a courtroom.

Land has always been a contentious issue, may be due to greed, power, mistake or otherwise.

Boundary disputes are since beginning of civilization. There are boundary disputes not only between the neighboring countries but also between the states in respective countries, between two civic bodies and between the neighbors, co-owners and so on.

Historically battles have been fought for boundary disputes regarding borders and even at present the boundary dispute between India and China has resulted into war like situation, where China wants to lay false claim over land belonging to India, which illegal action of China has been thwarted by our brave soldiers.

The present topic relates to boundary disputes, which has resulted into flood of litigation in courts for decades.

Dispute about the boundaries of respective land vis-a-vis ownership or possession is general bone of contention and when comes in the court, takes years to resolve as a result of procedural technicalities and often remains unresolved for want of proper evidence.

Often, it is seen that suit for possession against the unauthorized occupant/trespasser or by a owner against his neighbor, who has mistakenly or otherwise has occupied some portion of land is dismissed, because of insufficient evidence and exact demarcation with regard to encroached portion, which results in miscarriage of justice.

Although, the party to the suit can file an application for appointment of local commissioner under order 26 rule 9 of Code of Civil Procedure(C.P.C),which provision gives discretionary power to court to order a local investigation( by way of appointment of local commissioner) to be requisite or proper for the purpose of elucidating any matter in dispute. Further order 26 rule 10 C.P.C provides for procedure of commissioner and that his report and depositions to be evidence in suit.

The real Hercules task is to get the appointment of local commissioner, as the discretion of appointment of local commissioner is seldom used by the court on the ground that:-

“It is settled principle of law that he, who alleges, must prove initially that such and such things are in existence. This is not the duty of the court that it should appoint Local Commissioner and then identify which part has been encroached upon. The courts are not to help the plaintiff or the defendant for collecting evidence available for that purpose. It is duty of the parties to lead substantive evidence in that regard. However, when there is dispute regarding certain evidence and existence of some facts, only then court can appoint Local Commissioner. Here is a case where the petitioner wants that evidence should be collected for him by the court by appointing Local Commissioner, which cannot be allowed.”

“Hon’ble Supreme Court in Haryana Waqf Board v. Shanti Sarup and others, (2008) 8 SCC 671 has held that Local Commissioner can be appointed only to clarify the position of the existing state of affairs only after the evidence is led”. (Jagmohan v. Ramesh Kumar, 2013(15) RCR(Civil) 464)

“It was for the petitioner-defendant to show that he is in possession of the property in dispute, which was handed over to him at the time of registration of sale deed, as per his assertions. Court is not to collect evidence for the parties and hence, Local Commissioner cannot be appointed to report as to who is in possession of the property in dispute”.(Smt. Ulfat v. Hardeep Singh, 2012(5) RCR(Civil) 753).

Even, the party who wants to get the local commissioner appointed, looses right to file revision challenging the order declining the appointment of local commissioner. It has been held:-

“it is settled principle that against an order declining the appointment of a Local Commissioner, a revision petition is not maintainable. Two Division Bench judgments of this Court have held to the said effect in Harvinder Kaur v. Godha Ram, ILR 1979 (1) P&H 147 and Pritam Singh & another v. Sunder lal & others, 1990 (2) PLR 191. The said view has also been followed by two Single Judge Benches of this Court in Sumer Chand Jain v. Vishnu Bhagwan Mangla, 2006 (2) RCR (Civil) 445 and Rajiv Kumar Batra v. Kashmiri Lal Sika, to the effect that merely because a revision petition has been filed under Article 227 of the Constitution of India, the binding precedent of the Division Benches cannot be wished away. (Harbhajan Singh & another v. Gurmail Singh & others, 2015(9) RCR(Civil) 163).

Even in boundary disputes regarding identification of the boundaries between the states of Nagaland, Assam and Arunachal Pradesh , the Hon,ble Supreme Court of India appointed Local Commissioner with the consent of said states. (State of Assam v. Union of India & others, 2010(9) SCC 278)

There is complete chapter in the rules and orders of Punjab and Haryana High Court, with regard to mechanism for resolving the Hadd-Shikni” suits and other suits of boundary disputes of land, which, if followed in its true letter and spirit would result in resolution of such disputes.

Although for Hadd-Shikni” suits and other suits of boundary disputes of land falling within the jurisdiction of a Civil Court, it is generally desirable that enquiry be made on the spot and proper procedure to be followed by the local commissioner has been incorporated in the rules and orders of Punjab and Haryana High Court, but, the same is seldom exercised on the ground that the courts cannot collect the evidence for the parties. The said provision has been applied in a number of cases i.e Baraham Sarup v. Gagandeep & others, 2019(1) PLR 741, Ram Murti Goyal v. Smt. Basant Kaur, 1991(2) RRR 142).

For a perusal, the volume 1, chapter 1, part M, clause (i) of the rules and orders of Punjab and Haryana High Court is reproduced as under:-

(1) Procedure in “Hadd Shikni” cases.

In “Hadd-Shikni” suits and other suits of boundary disputes of land falling within the jurisdiction of a Civil Court it is generally desirable that enquiry be made on the spot. This can usually be done in the following ways:

(a) by suggesting that one party or the other should apply to the Revenue Officer to fix the limits, under section 101 (1) of the Punjab Land Revenue Act. Time for such purpose should be granted under Order XVII, Rule 3, of the Code of Civil Procedure;

(b) by appointing a local Commissioner, and

(c) by the Court itself making a local enquiry.

2. An order of the Revenue Officer made under Section 101 of the Land Revenue Act is not conclusive; but when his proceedings have been held in the presence of, or after notice to, the parties of the suit, and contain details of enquiry and of the method adopted in arriving at the result, it would be a valuable piece of evidence. It may be noted that an Assistant Collector of the second grade can deal with cases in regard to boundaries which do not coincide with the limits of an estate.

3. Similarly the report of the local Commissioner should contain full details so that the Court may satisfactorily deal with the objections made against it.

Instructions for the guidance of commissioners.

No person other than a Revenue Officer (or retired Revenue Officer) not below the rank of a Field Kanungo should usually be appointed a local Commissioner. The appointment of retired Revenue Officers is to be preferred as these Officers have the spare time and the inclination for completing the work with expedition. A commission issued to a Revenue Officers in service necessitates the obtaining of permission of the higher authorities and this along with the fact that such Revenue Officers are usually busy often results in delay in the disposal of the case. The wishes of the parties in regard to the appointment of a particular individual as commissioner for local investigations should be taken into consideration while making such appointments.

4. On the motion of the Judges, the Financial Commissioners have issued the following detailed instructions for the guidance of Revenue Officials or Field Kanungos appointed as Local Commissioners in Civil suits of this nature.

(Financial Commissioner’s Instructions)

(i) If a boundary is in dispute, the Field Kanungo should relay it from the village map prepared at the last Settlement. If there is a map which has been made on the square system he should reconstruct the squares in which the disputed land lies. He should mark on the ground on the lines of the squares the places where the map shows that the disputed boundary intersected those lines, and then to find the position of points which do not fall on the lines of the squares. He should with his scale read on the map, the position and distance of those points from a line of a square, and then with a chain and cross staff mark out the position and distance of those points. Thus he can set out all the points and boundaries which are shown in the map. But if there is not a map on the square system available, he should then find three points on different sides of the place in dispute, as near to it as he can, and, if possible, not more than 200 kadams apart which are shown in the map and which the parties admit to have been undisturbed. He will chain from one to another of these points and compare the result with the distance given by the scale applied to the map. If the distances, when thus compared, agree in all cases, he can then draw lines joining these three points in pencil on the map and draw perpendiculars with the scale from these lines to each of the points which it is required to lay out on the ground. He will then, lay them out with the cross-staff as before and test the work by seeing whether the distance from one of his marks to another is the same as in the map. If there is only a small dispute as to the boundary between two fields the greater part of which is undisturbed then such perpendiculars as may be required to points on the boundaries of these fields as shown in the field map can be set out from their diagonals, as in the field book and in the map, and curves made as shown in the map.

(ii) In the report to be submitted by him, the Field Kanungo must explain in detail how he made his measurements. He should submit a copy of the relevant portion of the current Settlement field map of the village showing the fields, if any, with their dimensions (karu kan) of which he took measurements, situated between the points mentioned in Instruction No. (i) above and the boundary in dispute. This is necessary to enable the Court to follow the method adopted and to check the Field Kanungo’s proceedings.

(iii) If a question is raised as to the position of the disputed boundary according to the field map of the Settlement preceding the current Settlement, that also should be demarcated on the ground, so far as this may be possible, and also shown in the copy of the current field map to be submitted under Instruction No. (ii)

(iv) On the same copy should be shown also, the limits of existing actual possession.

(iv) The areas of the fields, abutting on the boundary, in dispute, as recorded at the time of the last Settlement and those arrived at as a result of the measurement on the spot should be mentioned in the Field Kanungo’s report with an explanation of the cause or causes of the increase or decrease, if any, discovered.

(v) When taking his measurements the Field Kanungo should explain to the parties what he is doing and should enquire from them whether they wish anything further to be done to elucidate the matter in dispute. At the end, he should record the statements of all the parties to the effect that they have seen and understood the measurements that they have no objection to make to this (or if they have any objection he should record it together with his own opinion) and that they do not wish to have anything further done on the spot. It constantly happens that when the report comes before the Court, one or other party impugns the correctness of the measurements and asserts that one thing or another was left undone. This raises difficulties which the above procedure is designed to prevent.

(vi) The above instructions should be followed by Revenue Officers or Field Kanungos whenever they are appointed by a Civil Court as Commissioners in suits involving disputed boundaries”.

To my mind, the law needs re-visitation by keeping the technicalities aside. Procedural law is handmaid of justice and should not be overcome by technicalities.

When there is a dispute regarding the identification of the property, the proper course is to appoint local Commissioner by invoking the provision of order 26 rule 9 of Code of Civil Procedure(C.P.C), particularly a revenue official or an expert for demarcation( as per the Procedure in “Hadd Shikni” cases contained in the volume 1, chapter 1, part M, clause (i) of the rules and orders of Punjab and Haryana High Court) of the suit property to properly adjudicate the real question in controversy between the parties and for doing substantial justice between the parties.

There is no question of collecting the evidence for the parties by way of appointment of local commissioner, but for doing substantial justice between the parties and so that the justice is not only done but appears to have been done. If the controversy can be resolved in a simplified manner, then why to undergo the huge exercise of leading the voluminous and tiring oral evidence, which evidence is generally ignored for want of substantive evidence.

A party may not have resources to collect evidence as a result of illiteracy, economic inability, week social support and for any other reason due to which the other party has a strong edge over him, can the court, which is a temple of justice, shut its eyes to let the injustice happen, the answer is and should be no.

What prejudice is to the party opposing the appointment of local commissioner, when the cost of appointment is to be borne by the party seeking appointment and if the revenue official or any other expert visits the spot to find out the actual position, the same will result in real and substantial justice and cannot amount to collection of evidence for any party.

There should be real justice by way of resolution of dispute and not mere decision, as simplicitor decision is not always doing substantial justice.

Justice should not only be done but seems to have been done.

The right will be right and wrong will be wrong and after all let the right win & truth prevail.

Whether Hindu Succession Act, 1956 has abolished the concept of J.F.P. of Hindu Law?

1. Hindu Law is traditionally classified into two schools of law, namely: Mitakshra and Dayabhaga. Wherein Dayabhaga school prevails in Bengal and Mitakshra school prevails in other parts of India. The concept of Joint Hindu Family is defined in the Article 212 of Mulla Principles of Hindu Law and Article 213 of the same principle defines the concept of the Coparcenary rights i.e. ideally much narrower body than joint family. It only includes those persons who acquire rights by birth in the joint or coparcenary property. These persons include sons, grandsons and great-grandson of the holder of the joint property for the time being. In other word, three generation next to the holder in unbroken male descents. Moreover, Article 217 of the above principles clearly states that no female can be a coparcener under the Mitakshra school and Article 218 further classify the coparcenary rights into 2 parts i.e. (1) unobstructed heritage (2) obstructed heritage. Wherein property in which a person acquires an interest by birth is called unobstructed heritage whereas property the right on which accrues not by birth but on the death of the last owner without leaving male issue is called obstructed heritage.

Therefore, unobstructed heritage devolves by survivorship whereas obstructed heritage devolves by succession. Further, Hindu law under its Article 220 has classified property into the 2 classes: (1) Joint Hindu family property (2) Separate property.

Joint Hindu Family property: may be divided according to sources which it come into-

• Ancestral property: According to Article 223 all properties inherited by a male Hindu from his father, fathers father, or fathers fathers father.

• Separate property of coparcener thrown into the common coparcenary stock: property jointly acquired by the member of’ the joint family with the aid of the ancestral property is joint family property. Whereas property jointly acquired by the member of the joint family without the aid of the ancestral property may or may not be the joint family property. Whether it is so or not would be question of fact in each case. Ideally, the term joint family property is synonymous with coparcenary property.

According to article 236 of the above mentioned act, property belonging to a joint family is the ordinary managed by the father or the other senior member for the time being of the family, the manager of the joint family is called Karta and according to the article 242 of the abovementioned act, the manager of the joint Hindu family has a power to alienate for value joint family property so as to bind the interest of both adult and minor coparcener in the property provided that the alienation is made for legal necessity or for the greater benefit of the state.

According to Sitara Lal v. Shiv Kumar, 1985 HAP 74 under Punjab customary law and law son have no right to partition against their father because sons do not have any right by birth.)

2. On the other hand, section 3(f) of the Hindu succession act 1956 defines “heir”- as any person male or female who is entitled to succeeded to the property of an intestate under this act. Further, section 3(g) of the same act defines “intestate”- a person is dimmed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect.

Whether article 220(1) ancestral property of Mulla has been abolished by section 4,8 and schedule of Hindu Succession Act, 1956 ?

Section 4 of Hindu succession act, 1956 clearly laid down the overriding effect of the act which reads as “save as expressly provided in the act- any text, rule or interpretation of Hindu law or any custom or usage as part of that law enforced immediately before the commencement of the act should cease to have effect with respect to any matter for which provision was made in the act.”

But Hindu Succession Act, 1956 which was only enforced to amend and codify the law relating to intestate succession among Hindu and include in its section 6 and 30 – Joint Hindu Family governed by Mitakshra law. So, here it is necessary to mention that Hindu Succession act cross its limit and enter into a concept of Hindu law. Both law was merge and mixed up.

Section 8 of the Hindu Succession Act, 1956 laid down scheme of the succession to the property of Hindu dying intestate. A Sons son was not mentioned as an heir under clause 1st of the schedule therefore, he could not get any right in the property of his grandfather under the provision. The right of the Sons son on his grandfather property during the lifetime of his father which exist under the Hindu Law as enforced before the act was not saved expressly by the act and therefore, the earlier interpretation of the Hindu law giving a right by the birth in the joint property has cease to have any effect. Thus, the property which devolve on a Hindu on the death of his father intestate after the coming in the force of Hindu succession act, 1956 did not constitute HUF property consisting of his own branch including his sons.^[1], ^[2].

Whether article 220(2) has been abolished by Hindu Succession Act, 1956 ?

Once a property is thrown into common hotchpotch, it is necessary that the exact detail of the specific date, month, year etc. of creation of an HUF for the first time by throwing a property into a common hotchpotch must be clearly pleaded and mentioned which is legal requirement due to order 6 rule 4 of CPC, which provides that all necessary factual detail of the cause of action must be clearly stated.

Undoubtedly, an HUF can exist even if paternal ancestral property is inherited prior to 1956 and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from paternal ancestral.^[3], ^[4].

Conclusion

My personal opinion upon the above mentioned both the point are firstly, Hindu succession act, 1956 till today neither abolished Hindu law and ancestral property in its any section. Secondly, Mulla article 220 define joint family property and separate property and article 218 define unobstructed heritage when property in which a person has acquired an interest by birth and obstructed heritage property the right to which accrues not by birth but on the death of the last holder. Hindu Succession act, which basically governs with intestate succession among Hindu cover joint Hindu family governed by Mitakshra law in section 6 and section 30 and even Benami transaction prohibition act, 1988 and 2016 (amended) also deal with the legal concept coparcener and Hindu undivided family meaning thereby till today Hindu succession act recognise the existence of joint Hindu family Mitakshra law. The main point to be noted in AIR SC 1753, the property which devolve on a Hindu on the death of his father intestate after the coming into the force of Hindu succession act, 1956 did not constitute HUF property but according to supreme court judgements mentioned in the above paragraphs HUF properties are abolished due to section 8 of Hindu succession act. On the other hand, AIR 2016 DELHI 120 and AIR 2017 DELHI 15 has laid down two exceptions to these concepts. Firstly, HUF property remains continue in case HUF existed and continued before and after 1956 and second exception is after 1956, a person who owns the self-acquired property throws such property into a common hotchpotch.

Moreover, in case if joint family property abolishes then there would be no chance of filing admission suit, relinquish deed and memorandum of partition (family settlement).

Therefore, old concept of joint family property is still to be maintained along with Hindu Succession Act, 1956