1. In this second appeal from a decree passed by the leaned Senior Subordinate Judge, Kangra at Dharamsala, learned Counsel for the appellant has raised several contentions but the real controversy centers round the question as to whether the law that should govern the decision of the case is contained in sub-section (1) or Sub-section (2) of Section 14 of the Hindu Succession Act 30 of 1956 which came into force on 17th June, 1956. if Sub-section (1) applies then the appellant succeeds and Respondent No. 1 who was plaintiff in the trial Court fails. On the other hand if Sub-section (2) applies then the appeal fails and the plaintiff-respondent No. 1 is entitled to a decree being passed in this favour.

2. There is no dispute as to facts. One Nihala grand-father of Mangtu was the last male holder of certain land situate in a village in Tehsil Nurpur, District Kangra. His widow Smt. Orku got it by inheritance. Her marriage with Nihala was a second marriage, her first marriage being with one Dhanu from whom she had a daughter named Smt. Naro. By mutation No. 128 sanctioned on 27th May, 1944 (Exhibit P.5) Smt. Orku made a gift of the land in favour of her daughter Smt. Naro. At the time of mutation the donor Smt. Orku, the donee Smt. Naro and Mangtu the present plaintiff appeared before the sanctioning authority. English translation of the order sanctioning mutation may be reproduced here as it is the language and effect of this order which is mainly responsible for the controversy arising in this litigation.

In the general assembly the donor Mst. Orku and the donee Mst. Naro (mother and daughter respectively) who are identified by Munshi Ram Numbardar admit and verify the factum of gift. Mst. Naro the donee states that she will retain this land with herself during her life-time and will have no right to alienate the same. On this statement, Rangtu the reversioner of the donor, on his identification by the Numbardar, gives his consent. Consequently sanction is accorded for mutation of half of Khata No. 33 measuring 23 Bighas and 2 Biswas in favour of Mst. Naro for her life.

Sd./

Revenue Officer.

Smt. Orku died on 13th July, 1945. On 22nd January, 1959 Smt. Naro gifted the land to her daughter Smt. Kaushalya who is appellant in this Court and was defendant No.2 in the trail Court. Smt. Naro who is Respondent No.2 in this court was defendant No. 1 in the trial Court. The gift in favour of the appellant was by means of a registered deed and mutation was sanctioned in her favour by mutation entry No. 179 on 27th February, 1959. The plaintiff Mangtu alleging himself to be the grand-son of Nihala brought the present suit against the defendants Smt. Naro and her donee Smt. Kaushalya on 14th April, 1959 in the Court of Subordinate Judge First class, Nurpur, challenging the alienation of the land on the allegations that the property being ancestral could not be alienated by gift according to custom governing the parties and as such the gift made by Smt. Naro would not affect his rights after her death.

3. The defendants filed separate written-statements taking similar pleas. They pleased that the gift in favour of Smt. Naro was not conditional and that she being in possession of the property when the Hindu Succession Act came into force became full owner thereof. They denied the ancestral character of the land and also pleaded that the parties were not governed by custom in matters of alienation and succession and averred that the plaintiff had no locus standi to sue.

4. The trial Court dismissed the suit holding that the gift in favour of Smt. Naro had not been proved to be conditional and therefore she was competent to make a gift in favour of Smt. Kaushalya as full owner of the property. He also held that the property was not ancestral and the parties were not governed by custom in matters of alienation. He further held that the plaintiff had no locus standi to sue.

5. The plaintiff appealed to the Court of the Senior Subordinate Judge, Kangra at Dharamsala. The appellate Court reversed the decision of the trial Court and held that although the land was not ancestral, the parties were governed by custom according to which irrespective of the nature of the property, a widow cannot permanently alienate her husbands property

6. The appellate Court also held that the gift was conditional and since Smt. Naro had herself agreed to be bound by the condition that she was a limited owner and as such she had no right to alienate the property permanently by means of a gift. As a result of that finding the lower appellate Court held that when the Hindu Succession Act came into force Smt. Naro was in possession of the land under a conditional gift. The case was therefore covered by Sub-section (2) of Section 14 and not by Sub-section (i) of Section 14. The plaintiffs suit was according decreed with costs throughout. This second appeal is Smt. Kaushalya and is directed against the aforesaid of the appellate Court below.

7. The judgment and decree passed by the lower appellate Court, as already state, has been attacked by the learned Counsel for the appellant on several grounds.

8. Firstly, it is urged by the learned Counsel that the suit filed by the plaintiff was barred by limitation. According to the leaned Counsel, the plaintiffs right to relief could only be as a reversioner to the last male holder of the property. Smt. Orku being alianted owner, a gift made by herein favour of Smt. Naro could not ensure beyond her life. The right to sue for possession of the land thus accrued to the plaintiff on Smt. Orkus death on 13th July, 1945 when Smt. Naro continued to remain in possession of the property even after that date. A suit for possession could therefore be filed by the plaintiff within 12 years from that date. But the present suit was not filed by him till 14th April, 1959.

9. Secondly, the plaint did not contain any allegation that the alienation made by Smt. Orku was invalid the plaintiff could only succeed if he alleged and proved that he was a reversioner to the last male owner of the property and an alienation adversely affecting his rights had been made by the intervening limited owner. The challenge in the plaint is only to a gift by Smt. Naro. In the absence of such allegation the plaint did not disclose any cause of action and should have been rejected out-right. In any case the issue regarding locus siandi should have been decided against the plaintiff.

10. Thirdly, the plaintiff having given his consent to the gift by Smt. Orku in favour of Smt. Naro was estopped from challenging the validity of the gift which had the effect of transferring ownership rights and possession of the property to the donee.

11. Fourthly, the property being in the possession of Smt. Naru when the Hindu Succession Act came into force the same having been acquired by her under a gift valid made in her favour she became its full owner under sub-section (1) of section 14 of the Act. Subsequent transfer by her in favour of Smt. Kaushalaya was in her capacity as full owner of the property and there fore conferred absolute ownership rights on the latter.

12.Question of limitation, estoppal and liability of the plaint to be rejected on the ground that it did not disclose any cause of action were not canvassed before the Courts below and therefore cannot be allowed to be raised or the first time in a second appeal. The pleas of limitation and estoppal were not raised even in the written statements filed by the defendants. Likewise the plea that the plaint did not disclose any course of action and was therefore liable to be rejected was also not raised in the written-statement. The issue regarding plaintiffs locus staddi to sue was not based on the plea that the plaint did not disclose any cause of action; it arose out to the preliminary objection raised by the defendants to the effect that they had become full owners of the property under the Hindu Succession Act and as such the plaintiff had no locus standi to maintain any action against them.

13. The only contention that needs consideration therefore is whether Sub-section (1) or Sub-section (2) of Section 14 governs the case. The section reads:

14. (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 included 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.

14. Before construing the section and its application to the facts of the case, it is necessary to clear the fore-ground by referring to certain matters which have an important bearing on the question arising for consideration in this case. It has been found that the parties to the suit are Ghirth by caste which is a prominent tribe of Tehsil Nurpur in District Kangra and that they are governed by custom. It was held by a Division Bench of Lahore High Court in Gobinda v. Nandu, 5 Lahore 450=AIR 1922 Lahore 217 a case relating to Ghirths of Kangra District, that the estate of a widow under customary law subject to the same restriction as that of a widow under the Hindu Law. This case was referred to with approval by a Divisions Bench of the same High Court (Abdul Rashid and M.C. Mahajan JJ.) in Titru Ram v. Mt. Parsinni, AIR 1946 Lahore 414. where it was held that in the Kangra District a widow governed by customary law could sell the lands in case of necessity and her power were not restricted to temporary alienation Lahori v. Radho, 72 PR 1906. and Mt. Kokan v. Mt. Lakhoo, 60 PR 1910., were some of the earlier decisions of the Punjab Chief Court which were referred by the learned Judges in the connection desides the Privy Councils decision in Mst. Subhani v. Nawab 68 IA 1.

15. The relevance of the Bench decision in Titru Rams case, how- ever, lies in Questions 2 and 3 in the Riwaj-i-am of 1868 relating to the Kangra District which were in the following terms and were held to be in accordance with the general custom as enunciated in Rattigans Digest of Customary law:

Question 2: Can widow a lienate by gift or by will

Answer: In the presence of her husbands collaterals she can only do so with their consent. If there are no such collaterals she can do so without restraint.

Question 3: Can a widow alienate by sale or mortgage

Answer: She can do so far personal and proper necessity such as paying debts left by husband, marrige of daughter maintenance of children and paying Government dues. She must first offer to alienate to her husbands collaterals and can only alienate to others on their refusing.

Answer of Question No. 45 created confusion with regard to her power to alienate permanently for neccessity which was however clarified by the observation that the answer to that question had not been correctly re- corded and it was held that a widow in Kangra District had the same powers as a widow in the rest of the Province of Punjab.

16. In this case we are concerned with answer 2 to Question No. 2 which correctly represents the law applicable to the case.

17. The next point to be borne in mind is that Smt. Naro was stranger to the family and as such she had no pre-existing rights in the property gifted to her by Smt. Orku. According to the custom Smt. Orku could not make a gift of the property inherited by her from her husband which would enure beyond her life time. The gift in favour of Smt. Naro could therefore enure only till the death of Smt. Orku on 13th July, 1945. But the custom did permit Smt. Orku to made a gift in favour of Smt. Naro which enure even after her death if the next reversioner was willing to give his consent thereto.

18. The gift in favour of Smt. Naro was also not made by an instrument, registered or unregistered. It was an oral gift which was late evidenced by the donor and the donee appearing before the Revenue Officer and admitting and verifying the factum of gift. It is at that time that Smt. Naro made a statement that she would retain the property with herself during her life-time and would have no right to a lienate the same and on this statement Mangtu, the reversioner, gave his consent and the mutation of the property was sanctioned in favour of Smt. Naro for her life.

19. There is nothing to slow that any conditions were imposed on Smt. Naro by the donor Smt. Orku. When the gift was made the transfer of Property Act, 1882 did not apply to Kangra District. It was therefore not necessary for the validity of the gift that it would have been effected by a registered instrument as required by Section 123 of that Act nor was the execution of a formal document necessary for the purpose. If therefore with a view to avoid litigation and to ensure that the gift should enure for the benefit of the donee even after the death of the donor the donee agreed with the collateral of the donors husband that she shall retain possession of the property with herself for her life only and will also not alienate the same, the arrangement could not be treated as a condition of the gift at all. The lower appellate Court was therefore wrong in holding that the gift in favour of Smt. Naro was a conditional gift. The next question is whether as a result of the limi- tations which the donee herself imposed upon her rights under the above mentioned arrangement with the collateral of the donors husband, she can be held to have agreed to the creation of a restricted estate in her favour. It has already been noticed that she had no pre-exting rights in the property. All her rights whatever they were, flowed from the gift her estate could not therefore be called what is known, in law as a Hindo womans estate.

20. It is in this back-ground that the question of application of one or the other of the two Sub-section of Section 14 has to be consi- dered.

21. The construction of section 14 has come up before various High Courts. There are also two decisions of the Supreme Court: Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva, AIR 1959 SC 577 [LQ/SC/1958/173] and Eramma v. Neerupana, AIR 1966 SC 1879 [LQ/SC/1965/325] . Recently a Full Bench of this Court (I.D. Dua C.J., S.N. Andley and S.N. Shankar JJ.) has also dealt with the scope of Section 14(1) in Smt. Chinti v. Smt. Daulto , (1968) 70 PLR 2191DS. but the question as to whether a gift in a particular case is a conditional gift or is one that prescribes a restricted estate within the meaning of Sub-section (2) of Section 14 has not been considered in any of these cases.

22. The principle of law that emerges from the decisions of the Supreme Court is that the object of Section 14 is to make a Hindu female a full owner of the property which she has already acquired or which she acquires after the enforcement of the Act. The Section does not in any way confer a title on the female Hindu where she did not in fact possess any vestige of title.

23. Speaking of Section 14 (I) in Erammas case their lordship observed:

Section 14(I) of the Act contemplates that a Hindu female who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder.

Explanation to Sub-section (I) defines property in terms of widest amplitude. But the Explanation does not apply to Sub-section (2) which is confined to property acquired by a Hindu female by only some of the modes of acquistion mentioned therein. It relates to 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. The pro- vision is in the nature of an exception to Sub-section (I) in respect of property acquired by means described therein or in other words in respect of such property, Sub-section (I) has to be read as being subject to the provisions of Sub-section (2). It lays down that in the case of such property one has to look to the terms of the gift will or other instrument or decree or order of a civil Court or award under which it has been acquired by her, to find out if the acquistion by her is of a restricted estate.

24. The term restricted estate as observed by Gopal Rao Ekbote J. in Somthim Veerabhadra Rao v. Duggirala Lakshmi Devi, AIR 1965. ANDHRA PRADESH 367 at P. 370 is not defined in the Act. It also does into appear in text of Hindu Law and it would be a mistake to equate it with the womans estate or life estate as is commonly understood under the old Hindu Law. As I read the two Sub-sections of Section 14 the concept of womans estate or life estate as understood under the old Hindu Law is already covered by Sub-section (I) as in my opinion the conversion of the at estate into an absolute estate its the principal object of Section 14. The legislature could not have therefore intended to take away with one hand what it had given to the Hindu female with the other. The term has thus to be understood in reference to Sections 10 and 11 of the Transfer of Property Act. The condition in a gift or other transfer of property restricting enjoyments is dealt with in Section 10 and a restrictive condi- tion repugnant to the interest created is dealt with in Section 11. If the instrument merely creates a life interest without any restriction it is obvious that it cannot be a restricted estate. But if along with the creation of a life estate, certain valid restrictions are put, then what is created is a restricted estate.

25. This is the view taken by Ekbote J. and I find myself in respectful agreement with the learned Judge. Where I differ from him, and I do so in all huminity, is when he goes on to add:

In order to attract the provisions of sub-section (2), three things must necessarily exists. Firstly, there must be an instrument or do-cument in writing; Secondly that instrument or document must be the source or the foundation of the right of the Hindu female to the property in question; and thirdly that document must contain terms which create restricted estate taken by the Hindu female. It is plain that if any one those essentialities is absent, the estate, taken by the women would fall under sub-section (i) and she will get absolute estate. The above said three requirements may be said to constitute the test to determined whether a given caw falls under Sub-section (2). If that test is not fulfilled, if the requirements of Sub-section (I) are fulfilled, it must follow that the women instead of a restricted estate would get an absolute one Sub-section (I) therefore can be said to be subject to Sub-section (2).

26. In my view the first and second requirements about the gift or transfer being under an instrument or document in writing and about the instrument or document being the source or foundation of the right of the Hindu female to the property in question, on which emphasis has been laid by the learned Judge do not appear to be correct. Sub-section (2) does talk of acquisition of property under an instrument, but that is one of the several modes of acquisition mentioned therein. If the law permits oral gift, as it did in the instant case, merely because the gift was not under an instrument or document in writing, the application of Sub-section (2) to such a gift cannot be said to be ruled out. The question as to whether the gift created a restricted estate in the property forming the subject matter of gift will in such a case have to be determined by reference to the intention of the parties gathered from the surrounding circumstances and oral testimony of witnesses if such direct evidence is available.

27. Applying the above test to the fact of the present case the position is that the restriction which Smt. Naro imposed on herself and which induced the plaintiff Mangtu to give his consent to the making of the gift in her favour resulted in a gift which did no merely create in her a life interest in the property in question but also prevented her from alienating the same. Under Section 2 of the Transfer of Property Act, such restrictive condition is not repugnant to the interest created in her favour. It is well settled that though the provisions of the Transfer of Property Act did not apply to Punjab at the material time, the principles underlying those provisions could be applied as rules of equity and good conscience.

28. The result of the above discussion is that the gift in favour of Smt. Naro created a restrictive estate in the property in question within the meaning of Sub-section (2) of Section 14 which precludes the application of Sub-section (I) to the case. Smt. Naro therefore could not become a full owner of the property on the coming into force of the Hindu Succession Act and thus could not make a gift in favour of her daughter Smt. Kaushalaya.

29. Mangtu plaintiff is admittedly the grandson of Nihalas brother and as such a revisioner of the last male holder. As was held by a Full Bench of the Punjab High Court in Amar Singh v. Sewa Ram (1960) 62 PLR 537. there is nothing in the Hindu Succession Act that had directly or indirectly taken away the rights of reversioners as such the Act in no way abolishes either reversionary or their rights or status. Where there is a restriction and control over the alienation of property, there the position of law before and after the Act continues to be the same and the next reversioner is entitled in law of the protection of his reversion.

30. The result of the above discussion is that the appeal is dismissed, the judgment and decree of the lower appellate Court are upheld and the plaintiffs suit is decreed with costs throughout.