Bindroo vs Munshi and others

Jaswant Singh, J.—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 Sharnan Brahmin, resident of Larangan, Tehsil Samba, in favour of the appellant as

inoperative and ineffective so far as the plaintiff-respondents' rights to the properties covered by the will were concerned, is concluded by findings

of fact.

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, Deel, Shaman, and Duhia continued to constitute a joint and undivided family,

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

either during the lifetime of Jawala or after his death.

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 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 14(1) of the Act. I regret I am unable to accede

to this contention which appears to be based upon a total mis-conception 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 the 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 14 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 right 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.

In Krishna Dassi Saha Vs. Akhil Ch. Saha and Another, it was held that the words ""possessed of"" can be and have been used as implying title

of ownership. At another place in the same judgment it was observed that ""the phrase ""possessed of"" in the opening clause of Section 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 sub-section

(1) is a clear indication of this intention.

In Harak Singh Vs. Kailash Singh and Another, , 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 Sub-section and must be taken simply to mean ""any property owned by a female Hindu"" at the date of the commencement of the Act.

In Mst. Bakhtwari v. Sadhu Singh, AIR 1959 Punj 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 provision would

have been a limited owner of the property, will now become full owner of the same 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 sub-section (1) of Section 14 clearly suggest that the Legislature only

intended that the limited ownership of a female may be changed into full ownership.

In Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva and Others, , it was held:-

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

In Eramma Vs. Verrupanna and Others, , it was observed:-

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

before or after the commencement of the Act. It may be noticed that the Explanation to Section 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

sub-section (1) of Section 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full

ownership. In other words Section 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 woman 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 sub-section (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 Section 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 sub-

section (2) of Section 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 in fact possess any vestige of title.

In Manual Singh v. Smt. Rattno, AIR 1967 SC 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.

Again in Dindayal and Another Vs. Rajaram, , 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.

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 does 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 Narayan Patra and Others Vs. Tara Patrani and Another, , Patra

J., speaking for the Court inter alia 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 proprietary right or

title in the property of the family.

In the present case, though Mst. Pahto appears to have been in possession of 23 Kanals and 10 Marias of land from Rabi 1957 (A.D.) to Kharif

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

coparcenary 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 coparcenary property devolved under the Mitakshra 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.

The present case is also not covered by the Explanation to Section 14(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.

For the fore-going reasons, the appeal fails and is hereby dismissed but in the circumstances of the case without any order as to costs.

Immediately after hearing the above judgment, Mr. Rounaq 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.