Mst. Kirpal Kaur vs Bachan Singh And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 137 of 1953

Decision Date: 15 November, 1957

Coram: A.K. Sarkar, Syed Jaffer Imam

In this matter, the Court recorded that the case titled Mst. Kirpal Kaur versus Bachan Singh and others had been decided on 15 November 1957 by the Supreme Court of India. The judgment was authored by Justice A. K. Sarkar, who was joined on the bench by Justices Syed Jaffer Imam and, for the appellate division, by Justices Das, Sudhi Ranjan and Chief Justice. The petitioner was identified as Mst. Kirpal Kaur and the respondents were Bachan Singh together with several other parties. The citation of the decision was noted as 1958 AIR 199 and 1958 SCR 950. The substantive issue involved the doctrine of adverse possession as it applied to a Hindu Jat widow who claimed full ownership of certain lands, the nature of a life estate created by a subsequent agreement with collateral relatives, and the admissibility of an unregistered agreement under Section 49 of the Indian Registration Act, 1908 (XVI of 1908). The factual matrix disclosed that upon the death of a Hindu Jat identified only as “R” in either April or May of 1920, the widow of his pre‑deceased son, designated “H”, entered into possession of the disputed properties. Subsequently, on 24 August 1920, a mutation of the settlement records was obtained that listed the widow as the owner of the lands previously held by R. Later, H’s daughter, referred to as “K”, received a gift of half of the property from H, which gave rise to disputes with the collaterals. The parties resolved the dispute when H executed a document dated 6 February 1932, under which H agreed that the lands would belong to her for the duration of her life and thereafter to her daughter for the daughter’s lifetime, with a stipulation that neither party would sell or mortgage the lands. The document remained unregistered. In 1939, H transferred the entire property to K, who subsequently obtained a mutation showing her as the owner. In 1945, the collaterals instituted a suit challenging the transaction, arguing that the transfer was not binding on them as they were the reversionary heirs of R. The custom admitted by the parties provided that a widow of a pre‑deceased son was entitled only to maintenance when collateral heirs were present. Both H and K asserted that, at the time of the 1939 gift, H possessed an absolute title by virtue of adverse possession that had arisen from her possession since 1920. The plaintiffs contended that, although the February 1932 agreement could not be admitted as evidence to prove that H and K held only life estates, it should be admitted to demonstrate the character of H’s possession and to show that her possession was not adverse. The Court held that the document dated 6 February 1932 was inadmissible under Section 49 of the Indian Registration Act, 1908 because H had already been in possession before the execution of the document. To admit the document to illustrate the nature of her subsequent possession would effectively nullify the prior adverse possession and convert it into permissive possession, thereby giving effect to the agreement contained therein. Consequently, the Court rejected the plaintiffs’ attempt to use the agreement as evidence of the character of the possession. The Court distinguished the earlier authority of Varatha Pillai v. Jeevarathnammal, (1918) L.R. 46 I.A. 285, on the basis that the factual and legal circumstances differed.

In this appeal, the Court noted that the only issue to be decided was whether title to certain lands had been acquired by adverse possession. The appeal, designated as Civil Appeal No. 137 of 1953, was filed against the judgment and decree dated 30 November 1951 issued by the former Patiala and East Punjab States Union High Court in R S Appeal No. 49 of 1948. That judgment itself had been rendered against an earlier judgment and decree dated 1 May 1948 by the District Judge of Patiala in Civil Appeal No. 22 of 1946‑47, which arose from the judgment and decree dated 4 April 1947 of the Sub‑Judge, Class II, Bassi in Suit No. 721 of 1945. Counsel for the appellant, identified as Achhru Ram and K L Mehta, appeared for the appellant, while counsel for respondent No 1, identified as Raghbir Singh and S S Dhillon, appeared for the first respondent. The judgment was delivered on 15 November 1957 by Justice Sarkar.

The Court described the factual background as follows: Ram Ditta, a Hindu Jat from the village of Bhathal in the district of Bassi, originally part of Patiala but later incorporated into the Patiala and East Punjab States Union, died in April or May 1920 leaving certain lands that later became the subject of the present dispute. Ram Ditta’s son, Jeona, predeceased him, leaving a widow named Harnam Kaur. Harnam Kaur had a daughter, Kirpal Kaur, who is the appellant before this Court, and Kirpal Kaur had a son named Satwant Singh. The contesting respondents in this appeal were certain collateral relatives of Ram Ditta, who were opposed to Harnam Kaur and Kirpal Kaur.

According to the record, after Ram Ditta’s death Harnam Kaur took possession of the lands and, on 24 August 1920, obtained a mutation of the settlement records that entered her name as the owner in place of Ram Ditta. By a deed dated 27 November 1929, she purported to donate half of the lands to her daughter Kirpal Kaur on the occasion of Kirpal’s marriage. An attempt was then made to have the settlement records mutated to reflect Kirpal Kaur as the owner of the gifted portion, but the mutation was refused on 12 May 1930 owing to objections raised by the collateral relatives. This alleged gift gave rise to a series of civil and criminal litigations between Harnam Kaur and Kirpal Kaur on one side and the collaterals on the other.

Mutual friends intervened to resolve the contention and, as a result of their efforts, a settlement was reached. On 6 February 1932, Harnam Kaur executed a document in which she agreed that the lands would remain hers for her lifetime and, after her death, would belong to Kirpal Kaur for Kirpal’s lifetime, with the stipulation that neither party would sell or mortgage the lands. The document further declared that Harnam Kaur had previously created a mortgage on the lands and that she retained the right to create another mortgage to discharge specified debts, a mortgage that would bind the collaterals, but that after her death no further burden would fall on them. This document was never registered. The Court recorded these facts as the basis for determining whether the title claimed by Kirpal Kaur arose through adverse possession.

The document executed on February 6, 1932 allowed Harnam Kaur to create an additional mortgage on the lands in order to pay certain specified debts, and it provided that such mortgage would bind the collaterals, but that after Harnam Kaur’s death no further burden would remain on the collaterals; this document was never registered. In 1936 Harnam Kaur executed another mortgage on the same lands and subsequently transferred that mortgage to Satwant Singh, who was the son of Kirpal Kaur. Three years later, in 1939, Harnam Kaur made a further gift, this time transferring the entire parcel of land to Kirpal Kaur, and Kirpal Kaur thereafter succeeded in obtaining a mutation of the settlement records that showed her as the owner of the lands in place of Harnam Kaur. The succession of these transactions gave rise to the suit from which the present appeal originates. The suit was filed in March 1945 by a number of the collaterals against Harnam Kaur, Kirpal Kaur and Satwant Singh, and it also impleaded certain other collaterals who did not appear as plaintiffs but were pleaded as defendants. The plaintiffs sought a declaration that the 1939 gift of the lands by Harnam Kaur to Kirpal Kaur and the mortgage created in 1936 were illegal and therefore not binding on the collaterals, who were the reversionary heirs of Ram Ditta. Harnam Kaur, Kirpal Kaur and Satwant Singh contested the suit. The trial court framed six issues for determination: (1) whether the plaintiffs were collaterals of Jeona; (2) whether the disputed property was ancestral; (3) whether the mortgage in question had been effected for legal necessity; (4) whether the gift complied with custom; (5) whether the suit was time‑barred; and (6) whether Harnam Kaur had acquired a right to the lands by adverse possession at the time of the gift to Kirpal Kaur. The court decided the first five issues in favour of the plaintiffs and rejected the sixth issue for them. Regarding the sixth issue, both sides accepted that under the prevailing custom a widow of a pre‑deceased son, such as Harnam Kaur, was entitled to maintenance only when collaterals of the degree existing in this case were present. The learned trial judge therefore held that Harnam Kaur’s possession was adverse to the collaterals, noting that she had been in possession since 1920 and that relations between her and the collaterals had been unfriendly; consequently, the judge concluded that at the date of the 1939 gift she had acquired an absolute title to the lands by adverse possession. The plaintiffs argued that the February 6, 1932 agreement, although not admissible as substantive evidence because it was unregistered, could be used to show the nature of Harnam Kaur’s possession and to demonstrate that her possession was not adverse. The trial judge rejected this argument and, based on his findings on issue 6, dismissed the suit. The plaintiffs subsequently appealed the decision.

In this case, the plaintiffs appealed to the District Judge of Patiala. Harnam Kaur and her side did not object to any of the issues that the trial Judge had found against them. Consequently, the learned District Judge considered only the sixth issue. The plaintiffs contended before the District Judge that Harnam Kaur’s possession was not adverse because she occupied the land only on a claim of maintenance, and they sought to support that claim with the Patwari’s report relating to the mutation dated 24 August 1920. The District Judge held that the report, which will be discussed later, did not contain any statement by Harnam Kaur asserting that she was the heir of Ram Ditta or that she occupied the land in lieu of maintenance. Regarding the agreement dated 6 February 1932, the District Judge concluded that the agreement offered no assistance to the collaterals. Accordingly, the District Judge dismissed the appeal. The collaterals then appealed to the High Court of Patiala and Eastern Punjab States Union. The High Court observed that the lower courts had reached the conclusion that Harnam Kaur’s possession was adverse on the basis that, as the widow of Ram Ditta’s predeceased son, she was not an heir and therefore her possession of Ram Ditta’s estate was necessarily adverse to his heirs, the collaterals. The High Court noted that this reasoning applied Hindu law, under which a widow of a predeceased son is not an heir but is only entitled to maintenance, and it held that the lower courts had overlooked the fact that the parties were Punjabi Jats governed by custom. The High Court then referred to paragraph 9 of Rattigan’s Digest of Customary Law, a respected authority on Punjab customs, which states that “the widow of a sonless son who predeceases his father, is, in some tribes, permitted to succeed to his share.” The Court found that the earlier Patwari’s report indicated that Harnam Kaur was regarded as an heir of Ram Ditta, which was why the mutation in her favour had been sanctioned. From this, the High Court inferred that the tribe to which Ram Ditta belonged recognized a right for a widow of a predeceased son to succeed her father‑in‑law in place of her husband, ahead of the deceased’s collaterals. The High Court concluded that, given this custom, which it held was proved in the present case, Harnam Kaur was entitled to possession of the lands and that no presumption could arise that she held them adversely to the collaterals. The High Court also held that the agreement of 6 February 1932 was admissible as evidence to show the nature of Harnam Kaur’s possession, although it could not be used to prove title because it had not been registered.

In the earlier decision, the agreement of 6 February 1932 was held to be admissible as evidence of title because it had never been registered. The trial judge concluded that the agreement demonstrated that, from the time it was executed, Harnam Kaur’s possession was of a permissive character rather than an adverse one. Moreover, at the date of the agreement she had not yet occupied the land for the statutory period required to acquire title by adverse possession, and consequently she could not have obtained such title regardless of the nature of any earlier possession. The court further observed that Harnam Kaur had taken possession in the capacity of an heir of her father‑in‑law. Therefore, any claim of adverse possession on her part would amount only to the creation of a widow’s estate, not to the acquisition of absolute ownership. The estate so created was governed by the customary law applicable to widows and did not confer any power of alienation. On these grounds the High Court allowed the appeal and entered a decree in favour of the plaintiffs. The present appeal arises from that judgment. Initially both Harnam Kaur and Kirpal Kaur filed the appeal, but Harnam Kaur later abandoned the proceedings and was removed from the record. Accordingly, the appeal before this Court now proceeds solely on behalf of Kirpal Kaur.

The respondents argued that Kirpal Kaur, acting alone, lacked the competence to maintain the appeal because the alienations being contested had been effected by Harnam Kaur. This contention was rejected. It was held that, as the transferee of the alienated property, Kirpal Kaur possessed a sufficient personal right to prosecute the appeal in order to protect her interests, irrespective of whether the original alienor elected to support the alienation. The matters raised before this Court mirrored those addressed by the High Court. Regarding the special custom that the High Court had said governed the parties, the appellant’s counsel contended that no such custom had ever been pleaded, that no issue was framed on it, and that there was no indication of it at any earlier stage of the litigation in the subordinate courts. The court found these contentions persuasive. The plaint contained no reference to the alleged custom. The defence of adverse possession was introduced only in an amended written statement filed by Harnam Kaur and Kirpal Kaur. The plaintiffs never filed a replication to establish the special custom that the defendants later sought to rely upon, a step that would have been necessary had they intended to invoke it. Furthermore, both parties, before the trial judge, conceded that the prevailing custom among them was that a widow of a predeceased son was entitled merely to maintenance out of her father‑in‑law’s estate. As the appellant’s counsel highlighted, the passage in Rattigan’s Digest makes clear that the general custom limits the widow’s right to maintenance, thereby undermining any claim that a distinct special custom had been proved.

In the present matter the general rule of the community is that a widow of a son who has pre‑deceased his father is not considered an heir of her father‑in‑law, although in some tribal groups a particular custom may exist that treats her as an heir; the law places the burden of proving the existence of such a special custom on the party who asserts it. Accordingly, it was incumbent upon the respondents to set forth the special custom in their pleadings and to produce proof of its operation. The court observed that the respondents failed to plead the special custom, failed to produce any evidence of its existence, and did not even attempt to do so. After the plaintiffs Harnam Kaur and Kirpal Kaur had closed their case, the respondents were afforded an opportunity to present rebuttal evidence, yet they again made no effort to establish the alleged custom. In view of these circumstances the court concluded that the High Court should not have allowed the question of the special custom to be raised at all. Moreover, the court could not accept the view of the High Court that the record contained sufficient evidence to prove the custom. The High Court had inferred, on the basis of a report prepared by the Patwari on 9 June 1920, that the special custom governing the tribe to which the parties belonged was applicable. That Patwari’s report was prepared in connection with the mutation of the estate of the late Ram Ditta to the name of Harnam Kaur shortly after Ram Ditta’s death. The report stated: “Sir, Ram Ditta son of Begha Jat Bhathal died a month back. Mst. Harnam Kaur widow of Jeona, who is the real daughter‑in‑law of the deceased, is the heir and is in possession of the property. Hence the mutation having been entered is hereby submitted for orders.” On the basis of this report an order dated 24 August 1920 was issued, which recorded that “the factum was confirmed in the general gathering in presence of Bhana, Arjan Singh and Narain Singh, lambardars and of Mst. Harnam Kaur, the daughter‑in‑law of the deceased. Hence the mutation of the holding of Ram Ditta deceased in favour of Mat. Harnam Kaur, widow of Jeons Jat, is hereby sanctioned.” The report undeniably declares Harnam Kaur to be the heir of Ram Ditta, and it is asserted that she could be regarded as an heir only if the special custom applied, thereby leading to the contention that the special custom had been proven. However, the court noted that the Patwari’s report merely reflected his personal opinion that Harnam Kaur was the heir, without indicating how he arrived at that opinion or whether it was based on the special custom. Moreover, the report was not offered as evidence in the trial, and it does not meet the strict requirements of admissible proof of a custom. The report was also not presented as evidence of the existence of the custom. It was further suggested that the Patwari’s report implied an application by Harnam Kaur for mutation on the ground that she succeeded to the lands as heir under the special custom; yet no such application appears in the court record. Consequently, the court found no basis to infer that the special custom had been established by the evidence on record.

In this case, the Court observed that it could not draw any inference about what might have been stated in an application, if such an application ever existed, because no record of it was produced. The Court further held that the order dated 24 August 1920 did not advance the matter beyond this point. Although it was suggested that the phrase “the factum was confirmed” in the order meant that the factual existence of the special custom was affirmed, the Court declined to accept this interpretation. The Court explained that the term “factum” might equally refer to the death of Ram Ditta or to the fact that Harnam Kaur was the daughter‑in‑law of Ram Ditta. Even assuming that the confirmed fact was the special custom, the order would still merely reflect the opinion of the lambardars regarding the existence of that custom, and such an opinion, for the reasons previously stated, could not be treated as admissible evidence to prove the custom.

Moreover, the operative portion of the order did not expressly state that the mutation was granted on the ground that Harnam Kaur was the “heir” of Ram Ditta. Consequently, the Court concluded that neither the Patwari’s report nor the order based on it established that Harnam Kaur was the customary heir of Ram Ditta or that she had taken possession in 1920 as such an heir, which would have precluded any claim of adverse possession. The matter then turned to the agreement dated 6 February 1932, which was argued to demonstrate that Harnam Kaur’s possession after that date was permissive. The High Court had permitted that agreement to be used as evidence of the nature of her possession.

The Court referred to the precedent set in Varatha Pillai v. Jeevarathnammal (1), where a document that should have been registered but was not, was nonetheless admitted to explain the character of a person’s possession. In that case, two widows, who jointly held a property, filed a petition with the Collector on 10 October 1895, stating that on 8 October 1895 they had transferred the property as stridhan to a woman named Duraisani and requesting that the villages be transferred into her name. The petition led to the registration of the property in Duraisani’s name, and she remained in possession until her death in 1911. The court held that, although the unregistered petition could not be used to prove a gift, it could be referenced to show that Duraisani’s subsequent possession was as a donee and owner, not as a trustee or manager for the original owners, thereby indicating that her possession was adverse to them.

Applying that principle, the Court said it could not agree that the authority of Varatha Pillai’s case justified admitting the 6 February 1932 agreement as evidence of the nature of Harnam Kaur’s possession of the lands after its date. The Court noted that Harnam Kaur had already been in possession prior to the execution of that agreement, and admitting the agreement to characterize her later possession would effectively overturn the earlier adverse possession and convert it into a permissive possession. Such an approach would, in effect, give effect to an unregistered agreement, thereby circumventing the statutory prohibition imposed by section 49 of the Registration Act. Consequently, the Court could not accept the agreement as evidence to demonstrate that Harnam Kaur’s possession after 6 February 1932 was permissive rather than adverse.

The Court observed that in Varatha Pillai’s case (1) Duraisani had taken possession only after the petition was filed and her claim to retain possession was based solely on the gift mentioned in that petition. Accordingly, the petition was admitted as evidence to demonstrate the character of her possession. In the present matter, Harnam Kaur had already been in possession before the date of the agreement. To admit the agreement as evidence in order to describe the character of her subsequent possession would, in effect, nullify the nature of the earlier possession. Such an admission would transform the original adverse possession into a permissive possession and would give effect to the agreement, which could not be done because the agreement lacked registration. Accepting the agreement for that purpose would therefore circumvent the statutory limitation imposed by section 49 of the Registration Act.

The High Court had concluded that because Harnam Kaur entered possession as the heir of Ram Ditta, at most she could be said to have acquired, by adverse possession, a widow’s estate in the land and consequently could not lawfully convey the land as a gift. The High Court relied on Bura Mal v. Narain Das (1) for that proposition. The Court held that the cited decision was of no assistance, because in Bura Mal the woman was not an heir of the last full owner; she was only entitled to maintenance and had taken possession of the property in lieu of that maintenance through an arrangement with the owners. In those circumstances the earlier court held that her possession could not be characterized as adverse. No similar arrangement was shown in the present case, and the respondents did not contend that any such arrangement ever existed.

The High Court also referred to Pandappa Mahalingappa v. Shivalingappa, a decision that derived from Lajwanti v. Safa Chand. The cited passage explained that the widows could possess only for themselves, that the last widow Devi would acquire a personal title, and that the respondents, not the plaintiffs, were the heirs of Devi. The passage further clarified that a Hindu widow is not a life‑renter but holds a widow’s estate—meaning a widow’s estate in her deceased husband’s property. When a widow possesses as such, her possession is adverse to others with respect to certain parcels; she does not acquire the parcels as stridhan, but she makes them beneficial to her husband’s estate (1) 102 P.R., 1907; (2) A.I.R. 1946 Bom. 193; (3) (1924) 51 I.A. 71, 176. For the authority of that case to apply here, it would have to be proved that Harnam Kaur entered into possession of the lands claiming a widow’s estate therein as an heir of Ram Ditta. The Court found no evidence to support such a claim.

In this case, the Court observed that there was no evidence to establish that Harnam Kaur claimed the lands as a widow’s estate. The earlier Patwari’s report was merely the Patwari’s opinion about the facts and could not be interpreted as a claim by Harnam Kaur. Consequently, the Court could not hold that she possessed the lands claiming a widow’s estate as the customary heir of her father‑in‑law. The Court then contrasted the present facts with those in Lajwanti’s case. In Lajwanti’s case, the widows who succeeded by adverse possession were clearly the heirs of their husbands and would have inherited the property if a post‑humous son, which the Judicial Committee had assumed existed, had not been born. Those widows were therefore able to claim the property as heirs and to vest it in their husbands’ estates. The Court stressed that Lajwanti’s case involved a woman who was undeniably an heir, a situation that did not obtain here. The Court reiterated that the special custom that could have made Harnam Kaur an heir of Ram Ditta had not been proved. On the basis of the material placed before it, the Court concluded that Harnam Kaur could not be considered an heir of Ram Ditta. Because she was not an heir, she could not acquire title to the property by adverse possession in the capacity of an heir, and the observations of the Judicial Committee in the earlier case of Koer were not applicable. The Court then referred to the decision in the case of Bhau Nath Singh, which held that, assuming the deceased was a member of an undivided Hindu family governed by Mitakshara law, neither his widow nor the widow of his son was entitled to anything beyond maintenance from his estate. Their possession of the villages was therefore adverse to the reversionary heirs unless it resulted from an agreement. The Court noted that there was no evidence of any arrangement between Harnam Kaur and the respondents, and therefore her possession was adverse to the collaterals. The Court accepted that her possession began in 1920, when Ram Ditta died, and continued uninterrupted. Accordingly, at the time of the mortgage and the gift, Harnam Kaur had acquired title to the lands by adverse possession. The Court held that the respondents’ claim could not succeed and allowed the appeal, awarding costs throughout.