Gopalrao and Others vs Marotrao

Anand Vasant Nirgude, J—The facts leading to this Second Appeal are as under:-

One Gangaram received the suit property and other properties as his share in family partition, some time in the year 1940. Shri Gangaram was married to Radhabai, but this couple did not have any child. Shri Gangaram apparently has quite affinity to his brothers and father. Shri Gangaram did not have any other property than the suit property for his livelihood. On 17­07­1940, Gangaram made a will in which he said that the suit property was bequeathed to his wife for life. He mentioned clearly that this property was given to her for maintaining herself. Gangaram further mentioned that after Radhabai''s death the property would go to his brothers and father. Gangaram, thus, created limited interest in favour of his wife through his will that the property was given to her in lieu of her right of maintenance. Gangaram died soon after making the will. Radhabai, on the other hand, cultivated the land. In 1976, she was advised that she could gift the suit property to the present respondent who is not her relative from her husband''s side. She died in the year 1988, thereafter, the appellants filed this suit for recovery of possession and for declaration that the gift deed was bad in law. The respondent took a stand that Radhabai became the absolute owner in view of provisions of Section 14(1) of the Hindu Succession Act, 1956 [for short, ''the said Act'']. At the trial Court stage, the suit was decreed, but the learned Judge of the appellate Court held that Radhabai became the absolute owner of the suit property even when the will gave her limited right. He held so in view of provisions of Section 14 of the said Act.

When the appeal was admitted, the following substantial question of law was framed:-

"As to whether Radhabai wd/o Gangaram had acquired absolute ownership in respect of suit property or whether it was restricted life time interest in view of Section 14(2) of the said Act?"

In order to appreciate the submissions, one must to read the relevant provisions of law. Section 14 of the said Act reads as under:-

"14. Property of a 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 arrears of maintenance, or by gift from any person, whether a relative or note, 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."

Section 14 of the said Act has two parts. Sub-section (1) lays down a rule as to when the property of Hindu female would become her absolute property. Sub-section (2) lays down as to in what circumstances any property acquired by a female Hindu would remain restricted estate.

The law was discussed elaborately in the judgment of Supreme Court in the case of V. Tulasamma and Others Vs. Sesha Reddy (Dead) by Lrs., AIR 1977 SC 1944 : (1977) 3 SCC 99 : (1977) 3 SCR 261 . The ratio of this judgment, in my words, can be as under. Under the customary Hindu law the wife is almost a co-owner of the properties with her husband. Even before 1937, she was entitled to the share of a son on the death of her husband. Section 14(1) and the Explanation to sub-section (1) provided that any property possessed by a female Hindu, whether acquired before or after the commencement of the 1956 Act, shall be held by her as full owner thereof and not as a limited owner. The language used in this section is in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the Act and promote the socio-economic ends. On the other hand, Section 14(2) provided an exception to Rule laid down in Section 14(1). The provisions of Section 14(2) would apply to any property acquired by a female Hindu by way of gift or under a will or any other instrument which creates independent and new title in her favour for the first time. It has no application where instrument concerned merely seeks to confirm, endorse, declare or recognize pre-existing rights, such as a claim to maintenance or partition or share to which the female is entitled to. In such cases pre-existing right would automatically be enlarged into an absolute one by force of Section 14(1). In such a case, even if, restrictions are placed in the instrument it must be ignored. Thus, where a property is allotted or transferred to a female in lieu of maintenance or a share at a partition, the instrument is taken out of the ambit of sub-section (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee. A female Hindu right to maintenance is a tangible right against property which flows from the spiritual relationship between the husband and the wife. It is recognized and enjoined by the customary Hindu law. Such a right may not be a right to property but it is a right against property. The husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. The claim for maintenance is pre-existing right, so any transfer to her declaring or recognizing such a right does not confer any new title but merely endorses or confirms the pre-existing right.

The facts of this case as explained above would establish that though Radhabai was bequeathed the suit property, in clear terms her husband gave her the property in lieu of her maintenance. He was probably aware that after his death the only source of income for Radhabai was his property. So he recognized that Radhabai had a claim for maintenance and such claim was her pre-existing right. In recognition of such right he bequeathed the suit property to her. In such a situation, Section 14(1) would operate and Radhabai would take the property absolutely upon her husband''s death. Her husband was not aware that he was not able to restrict Radhabai''s right to the property. He did not know that once the property came to Radhabai she would become absolute owner of the same. Because of this lack of knowledge, apparently, he thought that he could still further bequeath the property to his brothers, father etc. That part of the will, thus, was against the spirit of Section 14. The learned Counsel for the appellants placed the reliance on the recent judgment of the Supreme Court in the case of Shivdev Kaur (D) By L.Rs. and Others Vs. R.S. Grewal, (2013) 4 AD 196 : AIR 2013 SC 1620 : (2013) 2 CTC 587 : (2013) 8 JT 306 : (2013) 171 PLR 671 : (2013) 3 RCR(Civil) 20 : (2013) 4 SCALE 573 : (2013) 4 SCC 636 : (2013) AIRSCW 2228 : (2013) 3 Supreme 186 . The facts of the case would indicate that the will which gave a female Hindu only a life interest could fall within the parameters of sub-section (2) of Section 14 of the said Act. The facts of the case established that the female in whose favour of life interest was created was a well qualified person and MBBS doctor. She had acquired large properties from the family of her late husband. In that situation, the creation of life interest in her favour would not stand converted into absolute ownership. This judgment would not help the appellants because the case had fallen within the ambit of sub-section (2) of Section 14, whereas, the case in hand has squarely fallen within the ambit of Section (1) of Section 14 of the said Act. The second judgment on which reliance was placed is in the case of Gaddam Ramakrishnareddy and Others Vs. Gaddam Rami Reddy and Another, AIR 2011 SC 179 : (2011) 111 CLT 131 : (2010) 10 JT 125 : (2010) 9 SCC 602 : (2010) AIRSCW 6589 . Here, in this case also, the husband created life estate in favour of her wife. It was not in lieu of maintenance. The Supreme Court held that the case would fall within the ambit of Section (2) of Section 14 of the said Act. The learned Counsel for the appellants also placed reliance on the judgment of Division Bench of this Court in the case of Kamlabai Pujari and others Vs. Shantirai and others, (1983) MhLj 221 . In this case also the husband had executed a will and the suit property was given to his wife as limited estate during her life time. The widow despite of this alienated the property.

After discussing the law laid down in the judgment of V. Tulasamma and others case, the Court held as under:

"11. Summarising the nature of the liability of the husband to maintain his wife, the learned Author observed as follows at p. 533 of his book:

When the husband is alive, he is personally liable for his wife''s maintenance, which is also a legal charge upon his property, this charges being a legal incident of her marital co­ownership in all her husband''s property . . . . But after his death, his widow''s right of maintenance becomes limited to his estate, which, when it passes to any other heir, is charged with the same.... There cannot legal charge on the husband''s estate; but the Courts appear to hold, in consequence of the proper materials not being placed before them, that it is not so by itself, but is merely a claim against the husband''s heir, or an equitable charge on his estate; hence the husband''s debts are held to have priority, unless it is made a charge on the property by a decree.

To sum up, therefore, according to Sastri''s interpretation of Shastric Hindu Law the right to maintenance possessed by a Hindu widow is a very important right which amounts to a charge on the property of her husband which continues to the successor of the property and the wife is regarded as a sort of co­owner of the husband''s property though in a subordinate sense, i.e. the wife has no dominion over the property.

Similarly Mayne in his "Treatise on Hindu Law and Usage", 11th Edn., has traced the history of origin of the right of maintenance of a Hindu woman which according to him arises from the theory of an undivided family where the head of the family is bound to maintain the members including their wives and their children. The learned Author observes thus: (p. 813)

The importance and extent of the right of maintenance necessarily arises from the theory of an undivided family. The head of such a family is bound to maintain its members, their wives and their children, to perform their ceremonies and to defray the expenses of their marriages:

Again at p. 816 para 684 the author stresses the fact that the maintenance of a wife is a matter of personal obligation on the part of the husband and observes thus:

The maintenance of a wife, aged parents and a minor son is a matter of personal obligation arising from the very existence of the relationship and quite independent of the possession of any property, ancestral or acquired....'' It is declared by Mann that the aged mother and father, the chaste wife and an infant child must be maintained even by doing a hundred misdeeds''.

Again it has been observed at p. 818 para 687:

The maintenance of a wife by her husband is, of course, a matter of personal obligation, which attaches from the moment of marriage.

The author points out at p. 821 paragraph 689 that even after the coming into force of the Hindu Women''s Rights to Property Act, 1937 which confers upon the widow a right of succession in respect of the non-agricultural property, she is still entitled to maintenance from the family property. The author observes thus:

It cannot, therefore, be said that the reason of the right has ceased to exist and the right is gone. It was accordingly held that the widow of a deceased coparcener is still entitled to maintenance notwithstanding her right under the Act to a share in the non-agricultural part of the family estate.

Furthermore, the author cites the passage of Narada cited in Smritichandrika regarding which there is no dispute. The saying runs thus:

Whichever wife (patni) becomes a widow and continues virtuous, she is entitled to be provided with food and raiment.

At p. 822 para 690 the author points out that the right of a widow to be maintained is taken over even by the heirs of the husband who succeed to his property wither by inheritance or by survivorship. In this connection the following observations are made:

She is entitled to be maintained where her husband''s separate property is taken by his male issue. Where, at the time of his death, he was a coparcener she is entitled to maintenance as against those who take her husband''s share by survivorship.

The Hindu Law is so zealous in guarding the interests of Hindu women that the obligation for maintaining the Hindu woman falls even on the King when he takes the estate by escheat or by forfeiture."

With utmost respect to the learned Judges who authored this judgment, I am inclined to say that the law laid down by the Supreme Court in V. Tulasamma and others case is squarely applicable to the facts of the present case.

The judgment of the Supreme Court is squarely applicable and I would place reliance of the same for deciding this appeal rather than relying on the observations of the judgment of Division Bench.

In view of the above discussion, I would not hold that the case would fall within the ambit of sub­section (2) of Section 14 of the said Act. The appeal shall, therefore, fail.

Hence, the Second Appeal is dismissed.