MUKHTIARI Vs. GURDEV SINGH

JUDGEMENT

(1.) The land in dispute was owned by one Gobinda. He died and left behind his widow Smt. Kishni alias Kishan Kaur and four daughters, namely, Smt. Nando, Smt. Bachni, Smt. Mukhtiari and Smt. Rajo. Smt. Kishni died in November, 1965. Gurdev Singh son of Smt. Nando brought a suit or possession of 1/3rd share of property in dispute claiming that after the death of Smt. Kishni, he had the right to succeed to 1/3rd share of the property, through his mother Smt. Nando. This suit was resisted by the appellant, who is a defendant in the suit, claiming that the property in dispute was validly gifted by Smt. Kishni during her life-time to Smt. Mukhtiari and further that Smt. Nando having consented to the gift in favour of Smt. Mukhtiari, was estopped from challenging the gift and consequently the plaintiff, who claimed his right through his mother Smt. Nando, was estopped from filing the said suit. Various other pleas were also raised. On the pleadings of the parties, the following issues were framed :-

(2.) It has been vehemently contended by Shri Gur Rattan Pal Singh, the learned counsel for the appellant, that Exhibit D.1 which is termed as release Deed, executed by Smt. Nando and Smt. Bachni relinquishing their right to succeed in favour of Smt. Mukhtiari, was a family settlement between the members of the family of Gobinda and consequently the disputes regarding which the parties had yet to get a right, were validly settled and, therefore, in view of the deed Exhibit D.1, Smt. Nando having consented to the gift made by Smt. Kishni in favour of Smt. Mukhtiari, the plaintiff, who claimed his right through Smt. Nando, his mother, was estopped from filing the suit. The learned counsel has relied on a decision of the Supreme Court in Kale and others v. Deputy Director of Consolidation and others, 1976 AIR(SC) 807 for the contention raised by him. This contention is without any merit. The plea that the document Exhibit D. 1 was a family settlement, was neither raised in the written statement nor any issue was claimed to this effect. On the other hand, the only issues claimed have been enumerated in the earlier part of the judgment. Moreover, after going through the contents of Exhibit D.1, it is quite clear that the said deed is only a release deed which has been captioned as such by which Smt. Nando and her sister Smt. Bachni relinquished their right to succeed to the property to Smt. Kishni before the succession had opened. Admittedly, Smt. Kishni was alive when this deed was executed. During her life-time none of the daughters had any right to succeed to her property. They had only chance to succeed to her property after the death of Smt. Kishni. The release deed clearly mentions that the executants are relinquishing their rights to succeed in favour of Smt. Mukhtiari. Such a transfer is admittedly hit by the provisions of Section 6 of the Transfer of Property Act, as no deed could be got executed for tranferring the right which is yet to accrue. To the similar effect are the findings of both the Courts below with which no fault can be found. In this view of the matter, it cannot be said that the release deed Exhibit D.1 or the mutation, copy of which is Exhibit D.3, by which the gifted land was mutated in favour of Smt. Mukhtiari, can in no way be termed as a family settlement. The learned counsel has referred to the contents of Exhibit D.3 for showing that Smt. Nando and Smt. Bachni consented to the gift made by Smt. Kishni in favour of Smt. Mukhtiari. This contention is again without any merit. The contents of mutation will show that there is a reference to the release deed Exhibit D.1, and on the basis of the said deed, the Revenue Officer came to the conclusion that Smt. Nando and Smt. Bachni were the consenting party to the gift. This observation made in the mutation is patently against the very language of the release deed Exhibit D.1. The release deed was executed on 7.1.1942 and was got registered on 15.1.1942. The said deed makes no mention of any gift in favour of Smt. Mukhtiari. The mutation was admittedly sanctioned on 16.9.1942, many months after the release deed was executed and got registered. Therefore, the observation made in the mutation that Shrimati Nando and Shrimati Bachni were consenting to the gift, is really without any basis. In this view of the matter, the finding of the Courts below that on facts it is not proved that Smt. Nando ever agreed to the gift, is, therefore, correctly arrived at.

(3.) From what has been stated above, it is quite clear that the release deed Exhibit D.1 or the mutation, copy of which is Exhibit D.3, cannot be termed to be a family settlement and such a plea cannot be allowed to be raised at the stage of second appeal. That being so, the gift made by Smt. Kishni in favour of Smt. Mukhtiari could only be valid during the life time of Smt. Kishni and after her death, the property in dispute had to devolve upon the heirs of Smt. Kishni. Smt. Nando was admittedly the heir of Smt. Kishni and that being so, the plaintiff being the son of Smt. Nando had a right to succeed to the 1/4th share of the property.