Dakshyanamma vs B. Siddalingaiah

Huluvadi G. Ramesh, J.—This is an appeal by the plaintiff-wife against the defendant-husband being aggrieved by the order passed by the first appellate Court allowing the appeal and dismissing the suit. The wife had filed a suit for a declaration against the husband in respect of the suit property before the Civil Judge, Jr. Dvn., Arsikere in OS 301/1993.

There is said to be strained relationship between the parties after marriage and as they could not live together, the plaintiff wife -Dakshayanamma was given a share in lieu of her maintenance. However, as per the compromise entered into between the parties, it appears that in an earlier injunction suit it is stated that she has to enjoy the property during her life time i.e., only a limited estate was Created in the suit property. Stating that she is not allowed to enjoy the property peacefully despite her right over the suit property, she is said to have filed a declaratory suit. The suit was contested by the husband - Siddalingaiah. After a full fledged trial, the Trial Court has raised as many as four issues to the effect whether the plaintiff is the absolute owner of the suit property and whether she is in lawful possession and whether there is interference over her possession. While answering all the three issues, the Trial Court has held that the plaintiff is the owner in possession of the property and there is interference over her enjoyment and as such decreed the suit in her favour by permanently injuncting the defendant/respondent. The Trial Court has referred to the provisions of Section 14(1) of the Hindu Succession Act while declaring that the plaintiff is the absolute owner of the property and has also relied upon the decision reported in 1990 (1) CLT 157. Aggrieved by the said judgment, appeal was preferred before the Civil Judge, Sr. Dvn., Arsikere by the defendant - husband which came to be allowed. Hence, this appeal is preferred raising substantial questions of law.

While admitting the appeal, learned brother Shylendra Kumar J, has raised the following substantial question of law for consideration for determination:

Whether the first appellate Court was justified in holding that Section 14(2) of Hindu Succession Act applies to the case on hand and not Section 14(1) of Hindu Succession Act?

Whether the first appellate Court had not properly constructed the purport of the Karar dated 9.1.1985, while recording a finding against the appellant?

Whether in the facts and circumstances of the case the first appellate Court was justified in reversing the judgment and decree of the trial Court?

Heard the counsel representing the appellant and the respondent.

Learned Counsel for the appellant having taken me through the relevant provisions under the Hindu Succession Act and also relying upon the judgments of the Apex Court in State of Maharashtra and Another Vs. Dr. S.S. Srivastava and Another, . By Lrs contended that, before or after the commencement of the Hindu Succession Act by whatever means or device the wife acquires the property in lieu of her maintenance or arrears of maintenance, she becomes the absolute owner and as such the lower Appellate Court has erred in setting aside the decree. Accordingly, he prayed for to allow the appeal.

Learned Counsel for the respondent vehemently contended that the provisions of Section 14(2) of the Hindu Succession Act applies to the case on hand and not the provisions of Section 14(1) and submitted that the appellant by her conduct, has waived her right by way of consenting for having a limited estate in the property which was given to her in lieu of her maintenance and that too, in a compromise entered into in an injunction suit and the suit filed by her had become redundant and strangely the appellant has filed a suit and also pursued the matter before this Court and that it operates as estoppel and the decision relied upon is not applicable to the case on hand.

Having heard the Learned Counsel for the respective parties it is for me to answer the substantial questions of law which were raised at the time of admission. I may not dilate much on the facts which are in controversy and I restrict myself to answer the substantial questions of law raised.

The first substantial question of law raised is: "Whether the first appellate Court was justified in holding that Section 14(2) of Hindu Succession Act applies to the case on hand and not Section 14(1) of Hindu Succession Act?" In this regard Section 14(1) of the Hindu Succession Act, 3 956 reads thus:

Section 14: Property of a female Hindu to he her absolute property:

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 moveable and immovable property acquired by a female hindu by inheritance device 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 immediate before the commencement of this Act.

Further, the explanation provided to the said section also makes it clear that with regard to any property acquired by a female hindu in lieu of maintenance or arrears of maintenance she has to be held as a full owner and not as a limited owner. It may be so because of the fact that prior to the enactment of Hindu Succession Act, 1956 the law then in existence had only conferred a limited estate on the female that too to a wife of a coparcener and she has a limited right of enjoyment during her lifetime without the right of alienation as is specifically provided under the Married Women''s Property Act, 1933 (Mysore). Further, it is also made clear in the judgment of the Apex Court in the decision in Vaddeboyina Tulasamma and Ors. v. Vaddeboyina Sesha Reddi (Dead) AIR 1977 SC 1944 By Lrs that; "since in the present case the properties in question were acquired by the appellant under the compromise in lieu of satisfaction of her right of maintenance, it was Sub-section (1) and not Sub-section (2) of Section 14 which would be applicable and hence the appellant, must be deemed to have become full owner of the properties notwithstanding that the compromise prescribed a limited interest for her in the properties."

As noted above, even in the decision cited above which is similar to the case on hand, their Lordships have observed that it is Sub-section (1) and not Sub-section (2) of Section 14 which is applicable in similar circumstances and as such, the appellant must be deemed to have become full owner of the property notwithstanding the compromise prescribing a limited interest for her in the properties. Such being the position of law as laid down by the Apex Court, it has to be held that Section 14(1) of the Hindu Succession Act applies to the case on hand and not Section 14(2). Further, it has to be noted that estoppels pleaded cannot be accepted in view of the above legal position.

The second substantial question of law raised as to whether there is illegality committed by the lower appellate court in setting aside the reasoned judgment rendered by the Trial Court, though need not be answered in view of the above legal position, in a passing reference, it may be noted that the first appellate Court while not considering the explanation to Section 14(1) has observed that it cannot be said that because of the explanation all such cases must fall under coverage of Sub-section (1). The decision in each case must depend on the construction of the instrument, award or decree and the facts of the particular case would be examined in the light of the principles which emerge from the decision of the Supreme Court''. Relying upon the commentary of Mulla on Hindu Law, it appears the appellate Judge has interpreted that a right cannot be created in favour of the wife where the property is given to her in lieu of maintenance. Further, as submitted, only one acre of garden land and 15 guntas of dry land and a portion of the house is given to the appellant which appears to be very small, though reasonable to eek out her livelihood and to reside. It is not as if the entire property or a major portion of the property of the respondent is given to the appellant in lieu of her maintenance. May be the appellate Court while distinguishing this fact was under the impression that such an acquisition under the compromise or what has been acquired in lieu of maintenance cannot form the basis to acquire ownership, as such, it has held so. The appellate court has not properly constructed the purport of the compromise entered into between the spouses.

Since the first substantial question of law has been answered in favour of the appellant, the judgment and decree rendered by the Lower Appellate Court has to be reversed while confirming the findings and the judgment rendered by the Trial Court.

Accordingly, the appeal is allowed. The judgment and decree in RA 25/1997 rendered by the Civil Judge, Sr. Dvn., Ariskere on 16.9.1999 is set aside while confirming the judgment and decree passed by the Trial Court in OS 301/1993. Parties to bear their own costs.