Bhabataran Bagish vs Prahlad Chandra Mahapatra

M.M. Dutt, J.—In this appeal, preferred at the instance of the Plaintiffs, we are concerned with the interpretation of the words ''possessed by a female Hindu'' in Section 14(1) of the Hindu Succession Act, 1956 (hereinafter referred to as the Act).

The suit out of which this appeal arises, was instituted by the Plaintiffs for a declaration that their reversionary rights in respect of the suit lands remained unaffected. One Tripura Charan Banerjee, who was the owner of the suit lands, died leaving his widow Fakirmoni, the Defendant No. 7, as his sole heiress and legal representative. Fakirmoni inherited only a limited interest in the suit lands from her husband. She granted permanent leases in respect of item Nos. 1 and 2 of ka schedule lands of the plaint in favour of Defendants Nos. 1 and 2 on April 26, 1952 and April 20, 1953, respectively, reserving yearly rents to herself and sold item No 3 of the ka schedule lands to the Defendant No. 3 by a kobala dated January 29, 1957. She also granted permanent leases in respect of items Nos. 1 and 2 of kha schedule lands of the plaint in favour of the Defendants Nos. 4 and 5 on January 10, 1951 and November 8, 1954, respectively, reserving yearly rents to herself. The Plaintiffs, who are the sister''s sons of the said Tripura Charan Banerjee, claimed to be his reversionary heirs. It was alleged by the Plaintiffs that all those transfers by Fakirmoni were illegal, fraudulent and collusive and had cast a cloud on their title as reversionary.

The Defendants contested the suit and their defence was that the said transfers by Fakirmoni were bona fide and valid transfers and that, in any event, by virtue of the provisions of the Act Fakirmoni became the absolute owner of the suit lands which precluded the Plaintiffs from challenging the said transfers.

The trial Court came to the conclusion that the limited interest of Fakirmoni in the suit lands was transformed into an absolute interest under the provisions of Section 14 of the Act and upon that view the trial Court dismissed the suit. On appeal by the Plaintiffs, the lower appellate Court came to the same conclusion as that of the trial Court and dismissed the appeal. Hence this second appeal before us.

Before we proceed further, it may be stated here that the sale of item No. 3 of the ka schedule lands by Fakirmoni in favour of the Defendant No. 3 was not challenged before us, presumably because the sale was effected after the Act came into force and the finding of the Courts below is that the property was in the possession of Fakirmoni from before the Act came into force upto the date of the sale.

Section 14(1) of the Act runs as follows:

Property of 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.

The provisions of Section 14(1) of the Act, particularly the expression ''any property possessed by a female Hindu'' contained in the said provision, came up from time to time for judicial interpretation before different High Courts and also before the Supreme Court. In Gostha Behari Bera and Others Vs. Haridas Samanta and Others, our learned brother P. N. Mookerjee J. expressed his opinion as to the meaning of the words ''any property possessed by a female Hindu'', as follows:

The opening words ''any property possessed by a female Hindu'' obviously mean that, to come within the purview of the section, the property must be in the possession of the female concerned at the date of the commencement of the Act. They clearly contemplate the female''s possession when the Act came into force. That possession might have been either actual or constructive or in any form recognised by law, but unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was as least in such possession, taking the word ''possession'' in its widest connotation, when the Act came into force, the section would not apply.

In Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva and Others, the Supreme Court approved of the above view of P. N. Mookerjee J. as the correct view as to how the words ''any property possessed by a female Hindu'' should be interpreted.

In the case of Venkayamma v. Veerayya AIR 1957 A.P. 280 Viswanatha Sastri J., with whom Satyanarayana Raju J. agreed, expressed the view that

the word ''possessed'' in Section 14 refers to possession on the date when the Act came into force. Of course, possession referred to in Section 14 need not be actual physical possession or personal occupation of the property by the Hindu female but may be possession in law. The possession of a licensee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purpose of Section 14. The word ''possessed'' in Section 14 in a broad sense and in the context possession means the state of owning or having in one''s hands or power. It includes possession by receipt of rents and profits. Even if a trespasser is in possession of land belonging to a female owner on the date when the Act came into force, the female owner might conceivably be regarded as being in possession of the land, if the trespasser had not perfected his title by adverse possession before the Act came into force.

The above view as expressed in the said case of the Andhra Pradesh High Court was referred to in the above Supreme Court decision (2). The Supreme Court seems to have approved of the above view except that, in the facts and circumstances of the case before it, the Supreme Court did not think it necessary to go to the extent that even if a trespasser were in possession of the property belonging to a female owner, it might conceivably be regarded as being in possession of the female owner, provided the trespasser had not perfected his title.

It follows from the decisions referred to above that the word ''possessed'' in Section 14 of the Act must not be understood in the narrow or restricted sense of actual physical possession. It has a wide connotation and includes not only actual physical possession but also constructive possession and possession in any form recognised by law.

Now the question is, where, a female owner has granted a permanent lease of the property reserving to herself a yearly rent, as in the instant case, can the property be said to be ''possessed'' by her within the meaning of Section 14(1) of the Act ? It was contended by Mr. Mukherjee, learned Advocate for the Appellants, that Fakirmoni having granted permanent leases of the suit lands to the Defendants before the Act came into force, she could not be said to the in the constructive possession of the suit lands. According to him, permanent leases of the suit lands were tantamount to absolute conveyances of the suit lands and the widow, by granting the permanent leases, lost all interest therein. Our attention was drawn to the terms of the leases and it was pointed out that, save and except the provision for payment of yearly rents to the lessor, no interest was reserved by the widow Fakirmoni and the leases did not contain any term as to forfeiture. The leases in question were governed by the Bengal Tenancy Act as the interests created by the leases in favour of the Defendants were raiyati interests at rents fixed in perpetuity. u/s 18(l)(b) of the Bengal Tenancy Act, a raiyat holding at a rent or rate of rent fixed in perpetuity, shall not be ejected by his landlord except on the ground that he has broken a condition consistent with the provisions of the said Act, and on breach of which he is, under the terms of a contract between himself and his landlord, liable to be ejected. In the instant case, the leases did not contain any condition and, therefore, there is no question of ejectment of the Defendants as provided in Section 18(1)(b) of the Bengal Tenancy Act. Mr. Mukherjee strenuously urged that, as the widow Fakirmoni had not the right to recover possession of the suit lands, she could not be said to be in constructive possession of the suit lands.

The distinction between a permanent lease and a conveyance was explained by Jenkins J. in the case of Rally Das Ahirt v. Monmohini Dasste (1897) IX.R. 24 Cal. 440 (447) in the following terms:

Because at the present day a conveyance in fee simple leaves nothing in the grantor, it does not follow that a lease in perpetuity here has any such result... The law of this country does undoubtedly allow of a lease in perpetuity.... A man who, being owner of land, grants a lease in perpetuity carves a subordinate interest out of his own and does not annihilate his own interest. This result is to be inferred by the use of the word ''lease'', which implies an interest still remaining in the lessor.

The above observation of Jenkins J. was quoted with approval by the Privy Council in the case of (1909) L.R. 36 I.A. 148 (Privy Council) , and also in the case of (1919) L.R. 46 I.A. 158 (Privy Council) . In view of the distinction between a permanent lease and a conveyance as laid down by Jenkins J. in the case of Rally Dass Ahiri (Supra) and approved by the Privy Council in (1909) L.R. 36 I.A. 148 (Privy Council) and in the case of Raghunath Roy Marwari the contention of Mr. Mukherjee that by granting the permanent leases the widow Fakirmoni lost all her interest in the suit lands, or that the leases in question were tantamount to conveyances, cannot be accepted, and is overruled.

It has not been disputed before us that the widow Fakirmoni was entitled to receive rents and had been realizing rents from the Defendants ever since the grant of the permanent leases. Realisation of rents by her from the Defendants would only signify possession of her interest in the suit lands. The only mode of enjoyment of the suit lands which the widow exercised was the realisation or collection of rents from the lessees. Where there is relationship of landlord and tenant, the landlord possesses the demised property through the tenant and this applies not only to the case of a lease other than a permanent lease but also to the case of a permanent lease. In the decision of Mangal Singh v. Smt. Rattno AIR 1967 S.C. 1786 the Supreme Court has expressed the view that ''the constructive possession may be through a lessee, mortgage, licensee etc'' Mr. Mukherjee, however, contended that by using the word ''lessee'' the Supreme Court did not mean the case of a permanent lessee but a lessee other than a permanent lessee. We are unable to accept the contention of Mr. Mukherjee. In our view, the said observation of the Supreme Court applies not only to the case of a lessee other than a permanent lessee but also to the case of a permanent lessee. In either case, the lessee''s possession of the property should be regarded as the possession of the female heir or, in other words, the female heir should be held to be in the constructive possession of the property through the lessee, no matter whether he is a permanent lessee or a lessee other than a permanent lessee. As already stated hereinabove, in the case of Gummalapura Taggina Matada Kotturuswani v. Setra Veerava (Supra) the Supreme Court approved of the view expressed by the Andhra Pradesh High Court in Venkayamma v. Veerayya (Supra), that possession referred to in Section 14 of the Act includes possession by receipt of rents and profits.

It has been held in the case of Sarbananda Basu Mozumdar v. Pran Sankar Roy Cowdhuri ILR (1888) Cal. 527 and in the case of Surb Narain. Singh v. Birj Mohun Thakur I.L.R, (1895) Cal. 80, that the Zemindar''s possession of the right to collect rent from the tenants in occupation is actual possession of a tangible property. It has been held by the Privy Council in Secretary of State for India v. Krishnamoni Gupta ILR (1902) Cal. 518 that where a person has proprietary interest in land and, as such, is entitled to receive rent, he is in possession of his interest if he is in receipt of rent, while his tenant who is in actual occupation has possession which, in a sense, is the possession of the landlord or superior proprietor. The aforesaid decisions were relied upon and followed in the case of Omatul Medhi v. Kulsum (1907) 8 C.L.J. 245. In Omalul Medhi''s case Sir Asutosh Mookerjee observed as follows:

In the case before us, it has been found that the Petitioner, the widow, is in possession of the estate by receipt of rent from the lessees. It is not quite accurate to describe this as-constructive possession, In the case of zemindaries where the proprietor can be in possession only by receipt of rent, he is in actual possession of his interest, if he is in receipt of rent. The Zemindar''s possession of the right to collect- rent from the tenants in occupation is actual possession of a tangible property...when a person has proprietary interest in land and, as such, is entitled to receive rent, he is in possession of his interest if he is in receipt of rent, while his tenant who is in actual occupation has possession which, in a sense, is the possession of the landlord or superior proprietor.... If, therefore, a proprietor finds that the rent receivable by him is intercepted by some other person, he is dispossessed of his interest in the land. He loses possession, because the only mode of enjoyment by which that possession can be held, ceases to be available by the act of the trespasser.

In the instant case, on the authority of the aforesaid decisions we hold that the widow Fakirmoni was in actual possession of her interest by the receipt of rents from the Defendants, the lessees, and the actual occupation of the Defendants of the suit lands was the possession of the widow, on the date of the commencement of the Act. The suit lands, therefore, were possessed by the widow, the female heir, within the meaning of Section 14(1) of the Act. The limited interest of the widow Fakirmoni became transformed into an absolute interest by the application of the provisions of Section 15(1) of the Act and the Plaintiffs ceased to have any reversionary rights. The Courts below were right in dismissing the Plaintiffs'' suit.

In the result, this appeal fails and it is dismissed with costs.

D. Basu, J.

I agree.