Bindroo vs Munshi and others

(1) This civil second appeal which is directed against the judgment and decree dated August 13, 1970 of the learned Additional District Judge,

Jammu, affirming the Judgment and decree dated March 15, 1969, of the Sub Judge (C, J. M) Jammu, declaring the will dated June 20, 1963,

executed by Mst Pahto, widow of Shaman Brahmin, resident of Larangan, Tehsil Samba, in favour of the appellant as inoperative and ineffective

so far as the plaintiffrespondents' rights to the properties covered by the will were concerned, is concluded by findings of fact.

(2) It has been concurrently found by the courts below that Jawala and his four sons including Shaman, the husband of Mst. Pahto, constituted a

joint Hindu family, that after the death of Jawala his sons Mathura, Deelu, Shaman, and Dula continued to constitute a joint and undivided family,

that Shaman predeceased his brothers without leaving any issue, and that no partition1; ever took place between the members of the coparcenary

either during the life time of Jawala or after his death.

(3) Mr. Rounaq Singh appearing on behalf of the appellant has not challenged the findings of fact arrived at by the courts below. The short point

taken by him is that Mst Pahto having entered into possession of 23 Kanals and 10 Marias of land comprised in Khasra Nos.. 117, 423/129/424/

179, 198, 199 and 200 situate in village Larangan lugab before the commencement of the Hindu Succession Act, 1956, became a full owner of the

Property after the coming into force of the Act and as such was competent to will away the property. He has in support of his contention relied on

the words ''Any property possessed by a female Hindu"" occurring in Section 12 (1) of the Act. I regret I am unable to accede to this contention

which appears to be based upon a total misconception of the provisions of the Act. Shaman having died before the coming into force of the Act

and no partition having taken place between him and his three brothers, his widow, Mst. Pahto, who could not be a member of the coparcenary

under the Shastrik Hindu Law had merely a right of maintenance out of the joint family property but had no title to the property as such. Not having

a preexisting limited right to the property at the time of the coming into force of the Hindu Succession Act she did not as a consequence of the Act

become a full owner of the property in question so as to entitle her to will away the property. The Act, in my opinion, conferred upon a Hindu

female full rights of ownership and removed the clog on her power of disposition only in respect of the properties which could be said to have

belonged to her in a limited way. Section 12 of the Act only converted the interest of a Hindu female which prior to the Act was a limited one into

an absolute interest. In other words it conferred on a Hindu female full rights of disposal over the property which she in someway owned. The right

to maintenance out of the joint family property is not an interest which can be said to be possessed by a Hindu female within the meaning of the

Act.

(4) In Sm Krishna Dassi Saha v. Akhil Ch. Saha and another, A. I. R, 1958 Calcutta, 671, it was held that the words ""possessed of"" can be and

have been used as implying title or ownership. At another place in the same judgment it was observed that ""the phrase possessed of"" in the opening

clause of S. 14 has been used in the sense of ownership, which gives right to possession. There is no doubt that the Section purports to deal with

property in which a Hindu female had limited ownership and this Section gives greater interest to the Hindu female in these properties. The

concluding phrase in subsection (1) is a clear indication of this intention.

(5) In Harak Singh v. Kailash Singh and another, AIR 1958 Patna 581, (F. B) it was held :

The expression ""any property possessed by a female Hindu"" occurring in Section 14 must be broadly interpreted in the context of the language of

the subSection and must be taken simply to mean ""any property owned by a female Hindu1' at the date of the commencement of the Act.

(6) In Mst. Bakhtwari v. Sadhu Singh and others A. I. R. 1959 Punjab, 558, it was observed :

Section 14 (1) of the Hindu Succession Act, 1956, can only be interpreted to mean that a Hindu female, who in the absence of this provisions

would have been a limited owner of the property, will now become by virtue of the provisions of this Section. The word ""possessed"" in this Section

cannot possibly be held to mean anything other than lawful possession or possession as an owner. The words ""as full owner thereof and not as a

limited owner"" as given in the last portion of subsec. (I) of S. 14 clearly suggest that the Legislature only intended that the limited ownership of a

female may be changed into full ownership.

(7) In Gummalapura Taggina Matada Koituru Swami v. Setra Veerayva and others, A. I. R. 1959 Supreme Court, 577, it was held :

The word ""Possessed"" in S. 14 is used in a broad sense and in the context means the state of owning or having in one s hand or power.1'

(8) In Erama v. Veerupana and others, A. I. R. 1966 Supreme Court, 1879. it was observed :

The property possessed by a female Hindu, as contemplated in the Section is clearly property to which she has acquired some kind to title

whether before or after the commencement of the Act. It may be noted that the Explanation to S. 14 (1 sets out the various modes of acquisition of

the property by a female Hindu and indicates that the Section applies only to property to which the Hindu female has acquired some kind of title,

however restricted the nature of her interest may be. The words ""as full owner thereof and not as a limited owner"" as given in the last portion of

subsection (1) of b. 14 clearly suggest that the legislature intended that limited ownership of a hindu female should be changed into full ownership.

In other words S. 14 (1) 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 same by virtue of this Section. The object of the Section is to extinguish the estate called ""limited

estate"" or ""widow estate in Hindu Law and to make a Hindu women who under the old law would have been only a limited owner a 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.

The Explanation to subsection (1) of Section 14 defines the word ""property'' as including 'both movable and immovable property acquired by a

female

Hindu by inheritance or devise......' Sub'

Section (2) of S. 14 also refers to acquisition of property. It is true that the Explanation has not given any exhaustive connotation of the word

property"" but the word ""acquired"" used in the Explanation and also in subsection (2) of S. 14 clearly indicates that the object of the Section is to

make a Hindu female a full owner of the property which she had already acquired or which she acquires after the enforcement of the Act. It does

not in any way' confer a title on the female Hindu where she did not infact possess, any vestige of title1'.

(9) In Mangal Singh and others v. Smt. Kattro, A. I. R. 1967 S. C. 1786 it was held :

The expression ''possessed by"" is not intended to apply to a case of mere possession without title, and that the legislature intended this provision

for cases where the Hindu female possesses the right of ownership of the property in question."" (10) Again in Din Daval and another v. Rajaram A.

I. R. 1970 Supreme Court, 1019, Hegde J. speaking for the bench observed :

Before any property can be said to be ""possessed"" by a Hindu woman, as provided in Section 14 (1) of the Hindu Succession Act, two things are

necessary (a) she must have had a right to the possession of that property and (b) she must have been in possession of that property either actually

or constructively.

(11) The position that emerges from a perusal of the above mentioned rulings is that the words ''possessed by'' as used in Section 14(1) of the

Hindu Succession Act imply title or ownership. In this view of the matter, it is clear that mere right to maintenance dues not give a Hindu widow a

title to the property. I am fortified in this view by a decision of the Orissa High Court in Naravan Patra and others v. Tara Patrani and another

A.I.R. 1970, Orissa, 131, Patra J speaking for the court interalia said :

'The right of a Hindu widow to be maintained out of the family properties by itself does not confer on her any possessory lien or proprietory right

or title in the property of the family.

(12) In the present case, though Mst. Pahto appears to have been in possession of 23 Kanals and 30 Marias of land from Rabi 1957 (A. D.) to

Kharif 1963 (A. D.) she did not Inve a right to possess the property. Shaman being a member of the joint and undivided family technically called a

caparcenary and having died long before the coming into force of the Hindu Succession Act and his widow Mst Pahto not being a coparcener, his

undivided interest in the caparcenary property devolved under the Matakashri Law on his other coparceners by survivorship. The mere fact that

Mst. Pahto had a right to be maintained out of the joint family property does not, as already observed, mean that she had a title to the property.

(13) The present case is also not covered by the Explanation to Section 12 (1) of the Act as it was never the case of the appellant that Mst. Pahto

acquired the aforementioned land in lieu of her right of maintenance.

Thus there is no merit in the argument advanced by Mr. Rounaq Singh.

(14) For the foregoing reasons, the appeal fails and is heredy dismissed but in the circumstances of the case without any order as to costs.

Jammu, Sd/ Jaswant Singh, Judge

January 21, 1971

Immediately after hearing the above judgment, Mr. Rounq Singh made an oral prayer for leave to appeal under Paragraph 12 of the letters Patent

against my aforesaid judgment In view, however, of the catena of authorities including those of the Supreme Court referred to and relied upon by

me, in the judgment, I cannot declare the case to be a fit one for appeal.