Jai Bhagwan and Others vs Hakim Sawan Ram

M.S. Liberhan, J.—This order will dispose of R. S. A. Nos. 520 and 530 of 1978 as they involve common question of law.

The facts are taken from R. S. A No. 520 of 1978. Smt. Raja Devi Plaintiff filed a suit for declaration, claiming herself to be the absolute owner of the suit property. Consequential relief of injunction from interference in her possession was sought She claimed to have succeeded to the estate of Rama Nand, being his daughter. The estate was situated in two villages. She executed a registered gift in favour of Basanta with respect to the land in dispute, i. e., the land situate in village Chanarthal, and sold land of village Unstal, vide a registered sale deed. The sale as well as the gift were challenged by a suit for possession by Sewa Ram, father of Sawan Ram, contending the alienations by her were without consideration and legal necessity and were not binding on his reversionary rights. The Decree for declaration that the alienations were not binding on the reversionary rights of Sewa Ram, was granted and relief of possession was declined during the lifetime of Smt Raja Devi. Basanta, in whose favour gift was made by Smt. Raja Devi relinquished his rights in favour of Sewa Ram vide a registered deed of relinquishment dated 23-4-1952, and Sewa Ram gifted the land in dispute to Smt. Raja Devi Plaintiff for her maintenance with a restriction on alienating the same.

She died on 17-1-1971 and her legal representatives were brought on the record, who prosecuted the suit, claiming their rights through a will dated 3-3-1969 by her in their favour. Sewa Ram also died and his legal heirs were brought on the record.

Sewa Ram too filed a suit for possession challenging the will by her. On his death, his legal heir was brought on the record.

The following issues were framed in the suit filed by Smt. Raja Devi:

Whether the Plaintiff is the owner in possession of the property in dispute ?

Relief.

The trial Court dismissed the suit for declaration by Smt. Raja Devi. She was found to be in possession of the property in dispute under gift dated 23-4-1952 by Sewa Ram and it was further found that she had no right of maintenance against Sewa. Ram. Thus, she having acquired the property through the said gift deed (Exhibit PW3/1) with a restriction on alienation, she did not become its absolute owner. She could not will away the same. She was held to be a limited owner and governed by Section 14(2) of the Hindu Succession Act. Sawan Ram''s suit for possession, i. e., of the Defendant, was decreed

The Plaintiff preferred an appeal challenging the said finding, which was dismissed, and finding of the trial Court was affirmed. The judgment and decree of the Courts below have been challenged in this regular second appeal.

I have heard the learned Counsel for the parties and perused the record The counsel for the Appellants, Shri Puran Chand, contended that Smt. Raja Devi inherited the property from her father as a limited owner and she had right of maintenance. She gifted it to Basanta who relinquished his right of possession in favour of Sewa Ram who, in recognition of the right of maintenance gifted the property to her, vide deed P W. 3/1 with no right of alienation. Smt. Raja Devi''s limited estate had enlarged into absolute estate in view of Section 14(1) of the Hindu Succession Act. The learned Counsel relied upon Vaddeboyina Tula-samma and Ors. v. Vaddeboyina Sesha Raddi A. I. R. 1977 S. C. 1944, and Jagannathan Pillai Vs. Kunjithapadam Pillai and Others, . The counsel further contended that the condition imposed in the gift executed by Sewa Ram in favour of Smt. Raja Devi was invalid, therefore, the same was void.

Learned Counsel for the Respondent Shri H. S. Gill, contended, once Smt. Raja Devi gifted the property to Basanta She was left with no interest in the property. The coming into force of the Hindu Succession Act, 1956, was of no consequence as she was not in possession of the property in lieu of her maintenance inasmuch as Basanta was the full owner under the gift subject to the right of the Respondent being reversioner, the execution of relinquishment deed by Basanta is nothing else but an acceleration of succession and Smt. Raja Devi could not have claimed the right of maintenance. The gift by Sewa Ram was not in lieu of maintenance She was given the property for maintenance on account of love and affection being a relation. Consequently, she having acquired the interest in the property through the gift deed which only gave a limited interest, was bound by the condition laid in it.

10 The only question for consideration in this case is whether the land in dispute had been acquired by Smt. Raja Devi through gift deed executed by Sewa Ram with a restriction on her right of alienation or she had come into possession through the gift deed or otherwise, in lieu of her right of maintenance. Whether she was to be governed by Section 14(1) or Section 14(2) of the Hindu Succession Act, in view of the facts stated above

The Courts below came to the conclusion that Smt Raja Devi had acquired the property through the gift deed executed by Sewa Ram with a restriction, and she had no right of maintenance either against Sewa Ram or against the land in dispute in as much as she had shed away all her rights by executing registered gift in favour of Basanta. She was left with no right, title or interest in the land in dispute after the execution of a valid gift in favour of Basanta, who transferred his interest to Sewa Ram. Sewa Ram had given a restricted estate to Smt. Raja Devi. The findings of the Courts below are unassialable No error has been pointed out in the said findings.

On second question, it is obvious that Smt. Raja Devi having acquired the limited estate through the deed, she will be governed by Section 14(2) of the Hindu Succession Act, which reads as under:

14(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 of award prescribe a restricted estate in such property.

The contention of the Respondent further finds support from a judgment in Kothi Satyanarayana v. Gall Sithayya 1987 (1) L. L. R. 269 (S. C.), wherein the following observations were made:

It is not disputed that Sub-section (2) of Section 14 is an exception to Sub-section (1) and if the situation is covered by Sub-section (2), the transformation provided for in Sub-section (i) would not take place.

In view of above observation, the property in dispute having come into the hands of Smt. Raja Devi vide the gift deed as a limited estate, she had no other right, title or interest in the property in dispute on the date of coming into force of the Hindu Succession Act, except through the registered deed of gift in her favour. She having, acquired the property through the deed will be squarely covered by Section 14(2) of the Hindu Succession Act. Thus, she will have a limited estate as bestowed by the said deed.

The judgment reported in Jagannathan Pillai v. Kunjithapadam Pillai''s case (supra) is neither pari materia on facts nor on law as laid down by their Lordships of the Supreme Court. It has been categorically laid down that in case a Hindu widow regains possession subsequent to the commencement of the Act upon the retransfer of the very same property to her by the transferee in whose favour she had transferred it prior to the commencement of the Act, she would become its absolute owner. However, in the case in hand the property has not been re-transferred by the transferee. The propery had been transferred by the transferee to a third person who became its owner and it is the said person who transferred the limited interest in the property to her Same are the facts and situation in Vaddeboyina Tulasamma v. Vaddeboyina Sesha Reddi''s case (supra). The judgment cited by the counsel for the Respondent squarely covers the present case on facts and law.

14 The contention qua the condition in the gift deed being void has to be noted only to be rejected as no such plea was raised either before the Courts below or even in this appeal. Only half heartedly oral submission was made during arguments.

In view of my above findings, I find no force in these appeals and the same are dismissed. The judgments and decrees of the Courts below are affirmed with no order as to costs.