Nachhatro Devi vs Chetan Singh

R.L. Anand, J.—This is defendant''s appeal and has been directed against the judgment and decree dated 8th February, 1990 passed by the Additional District Judge, Kurukshetra, who set aside the judgement and decree dated 12th January, 1989 passed by the Court of Senior Sub Judge, Kurukshetra, and decreed the suit of the plaintiff-respondent Chetan Singh son of Norata Ram, as prayed for.

The brief facts of the case are that Chetan Singh son of Norata Ram was minor at the time of the filing of the suit in the year 1984, but during the pendency of the suit he became major and his case in the trial Court was that he constituted a joint Hindu family with his father Norata Ram and that the said joint Hindu family was the owner in possession of land measuring 122 Kanals 13 Marias situated in village Kurri, Tehsil Thanesar, fully described in para No. 3 of the plaint. Said Norata Ram had since expired. Smt. Nachhattro Devi, defendant No. 1, who is his mother, got one-third share in the aforesaid land and mutation was also effected in her favour. The plaintiff alleges that he being the son was entitled to inherit the property of his father. Defendant No. 1 Smt. Nachhattro was a lady of loose character. She mortgaged one-third share of the aforesaid land measuring 122 Kanals 13 Marias in favour of defendant No. 2 Chuhru Ram, regarding which mutation No. 2209 was also sanctioned. The plaintiff further alleges that defendant No. 1 Smt. Nachhattro after mortgaging the land, wants to sell the same without any authority. With the said al legations, the plaintiff filed a suit for permanent injunction, praying that defendant No. 1 be restrained from alienating the suit land by way of sale, mortgage, lease or in any other manner in favour of defendant No. 2 or any other person and that the defendants be restrained from interfering with the possession of the plaintiff.

The suit was contested by defendant No. 1, who pleaded that on the basis of the Civil Court decree dated 8.6.1979 passed in Civil Suit No. 741 of 1979, she be came the co-owner of the land in dispute, and she is the owner to the extent of one-third share in the land measuring 122 Kanals 13 Marlas and she has every right to use the same. The plaintiff filed a rejoinder to the written statement filed by the defendant No. 1 in which he reiterated the allegations made in the plaint by denying those of the written statement. It may also be stated here that the said suit was not contested by defendant No. 2 Chuhru Ram, who was proceeded exparte in the trial Court.

From the above pleadings of the parties the learned trial Court framed the following issues:

Whether the plaintiff and his father Norata Ram constituted joint Hindu family, as alleged ? OPP.

Whether the Joint Hindu family is owner in possession of the suit land ? OPP.

Whether the defendant has no right to alienate the suit land ? OPP.

Whether the defendant in liable to be prosecuted as alleged ? OPD.

Whether the defendant is joint owner in joint possession of the suit land and no injunction can be granted ? OPD.

Whether the plaintiff has no locus standi to file the present suit ? OPD.

Whether the suit is not maintainable in the present form ? OPD.

Whether the plaint is not verified as required by law? OPD.

Whether the suit is nothing but an abuse of the process of the court and law? If so, its effect ? OPD.

Relief.

The parties led oral and documentary evidence in support of their case and it was held by the trial Court that it was not established that the property in the hands of Norata Ram was ancestral as the plaintiff did not lead any evidence to prove that he ever constituted a Joint Hindu Family with Norata Ram or that there was any Joint Hindu Family property. The Court further held that Smt. Nachhattro defendant No. 1 had become the fullfledged owner of the property by virtue of the provisions of Section 14(1) of the Hindu Succession Act, 1956, and that sub-section (2) of Section 14 of the said Act did not apply in her case and that defendant No. 1 did not acquire any restricted estate on the basis of the decree. Also it was held that defendant No. 1 became joint owner to the extent of one-third share on the basis of the decree dated 8.6.1979, therefore, the suit of the plaintiff for injunction was not maintainable against the co-sharer.

Aggrieved by the judgment and decree of the trial Court, Chetan Singh plain tiff filed appeal in the Court of Additional District Judge, who vide the impugned judgment and decree dated 8.2.1990 set aside the judgment of the trial Court and decreed the suit of the plaintiff Chetan Singh for injunction and the main reason given by the first appellate Court for the reversal of the judgment and decree of the trial Court are contained in para Nos. 8 and 9 of its judgment and the operative part of the judgment of the first appellate Court can be reproduced as under:

" He, thus gave 1/3rd share of the land to his wife with an idea that she may re quire that land for her maintenance in case she comes to face some odd days. Thus, he gave 1/3rd share of the land in favour of his wife for her maintenance. It was his self-acquired property as observed by the learned trial Court and he could make any arrangement regarding that land. So, the defendant No. 1 inherited the property not u/s 14(1) of the Hindu Succession Act but u/s 14(2) of the Act. She has already realised an amount of Rs. 45,000/ from the mortgage of that land and even the interest of that amount is enough for her maintenance. The appellant who has grown major is ready to perform the marriage of his sister if the custody of the girl is given to him. Earlier, he was minor and dependent upon others."

Aggrieved by the judgment and decree of the first appellate Court this time Smt. Nachhattro has come in appeal.

I have heard Mrs. Lisa Gill, Advocate, on behalf of the appellant, and Mr. K.S. Kundu, Advocate, on behalf of the respondent, and with their assistance have gone through the record of this case.

On going through the record of this case and after applying my mind to the reason as contained in the judgment of the trial Court and that of the first appellate Court, I am of the considered opinion that the impugned judgment and decree of the first appellate Court cannot be sustained in the eyes of law as the said judgment is based on suppositions and assumptions not borne out from the record and the first appellate Court has tried to make out a case for the plaintiff on the basis of the evidence from which'' this inference could not be drawn.

A perusal of the record would show that Smt. Nachhattro and Chetan Singh earlier filed a suit for declaration against Norata Ram somewhere in the year 1979 and it was alleged in para 3 of the plaint (Exhibit D1) that defendant (Norata Ram) used to spend the whole of the income from the land in dispute in order to enjoy his extravagant habits, i.e., drinking, gambling and other vices. On account of these disputes arose which became serious later on and the family peace was disturbed. To settle these disputes and to bring harmony in the family peace, a family settlement consisting of the Biradari, common relations and friends took place one year prior to the institution of the suit and defendant Norata Ram promised to transfer the land to the extent of one-third share in favour of plaintiff No. 1 Smt. Nachhattro and the remaining two-third share in favour of plaintiff No. 2 Chetan Singh, respectively. There was no averment made by plaintiff Chetan Singh in the earlier suit regarding the Joint Hindu Family property nor it was ever averred that plaintiff No. 1 would get the share as a limited owner by virtue of the decree which might be passed in. their favour. The suit was not contested by Norata Ram, who filed a signed written statement (Exhibit D2) and he admitted the allegations of the plaint and it was never said by Norata Ram that he was parting the land by virtue of the decree which might be passed in favour of the plaintiffs of that suit, namely, Smt. Nachhattro and Chetan Singh and that Smt. Nachhattro would be the limited owner. Exhibit D-3 is the judgment which was passed on 8.6.1979 by the Court of Senior Sub Judge, Kurukshetra, on the basis of the admission of Norata Ram plaintiff and it was held that plaintiff No. 1 was the owner in possession to the extent of one-third share and plaintiff No. 2 Chetan Singh to the extent of two-third share in the suit land. Again from this judgment it is not established that Smt. Nachhattro was getting the suit land for the first time as a restricted owner. Exhibit D-4 is the decree which was prepared on the basis of the judgment dated 8.6.1979. It is settled law that the wife of a Hindu male has a preexisting right of maintenance in the property of her husband. Assuming for the sake of argument that in lieu of her preexisting right of maintenance, the decree (Exhibit D-3) was passed in her favour, still she could be entitled to get as a fulfledged owner by virtue of the provisions of Section 14(1) of the Hindu Succession Act and Section 14(2) of the said Act would not come into play. Section 14(1) of the Hindu Succession Act lays down that 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. According to sub-section (2) of Section 14 of the said Act 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. I have already held above that in the earlier suit when Chetan Singh, plaintiff of the present suit, was co-plaintiff with his mother Smt. Nachhattro against his father Norata Ram, it was never averred that Smt. Nachhatro would be considered as a limited owner after the passing of the decree or that she would ac quire the limited interest in the property of her father. Even the decree (Exhibit D-3) does not speak of restricted estate in favour of Smt. Nachhttro. In other words, by virtue of the decree (Exhibit D-3) Smt. Nachhttro became the fullfledged owner of the one-third share of the property of her husband and she must have acquired the same on account of her preexisting right of maintenance in the estate of her husband. In Bai Vajia (Dead) by Lrs. Vs. Thakorbhai Chelabhai and Others, , it was held as follows:

"The widow''s right to maintenance, though not an indefeasible right to property, is undoubtedly a "preexisting" right. It is true that a widow''s claim for maintenance does not ripen into a fullfledged right to property, but nevertheless it is undoubtedly a right which in certain cases can amount to a right to property where it is charged. It cannot be said that where a property is given to a widow in lieu of maintenance, it is given to her for the first time and not in lieu of a preexisting right. The claim to maintenance as also the right to claim property in order to maintain herself, is an inherent right conferred by the Hindu Law, and therefore, any property given to her in lieu of maintenance is merely in recognition of the claim or right which the widow possessed from before. It cannot be said that such a right has been conferred on her for the first time by virtue of the document concerned and before the existence of the document the widow had no vestige of a claim or right at all."

Similar observations were made in Vaddeboyina Tulasamma and Ors. v. Vaddeboyina Sesha Reddi (dead) by L.R.s. AIR 1977 S.C. 1944. Learned counsel for the appellant also relied upon C. Masilamani Mudaliar v. The Idol of Sri Swaminathanswami Thirukoil 1996(2) R.R.R. 161 (S.C), Mangat Mal (dead) and Anr. v. Smt. Punni Devi (dead) and Ors. 1996(3) R.R.R. 632, in support of her contention that Smt. Nachhaltro was the fullfledged owner of the property by virtue of the judgment Exhibit D-3 and decree Exhibit D-4 being the joint owner with her son can successfully defeat the injunction. There is force in the argument of the learned counsel for the, appellant in view of the citation earlier quoted of the Hon''ble Supreme Court.

Learned counsel for (he respondent has, however, tried to make a vain attempt to support the judgment of the lower appellate Court by urging that Smt. Nachhattro got the limited interest as she became a lady of loose character after the death of her husband; so much so she left the village and started residing in the house of her alleged paramour at Ambala and it is also established that the property in the hands of Norata Ram was ancestral and Smt. Nachatro would not get one third share in the decree Exhibit D-3. The argument is devoid of any merit. Chetan Singh was co-plaintiff with his mother Smt. Nachatro in the earlier suit. There is not an iota of allegation regarding the ancestral nature of the property. Also in the present suit no evidence has been led to that effect. In this view of the matter, I am inclined to reverse the findings of the lower appellate Court when it held that the plaintiff constituted a Joint Hindu Family with his father and that defendant No. 1 had no right to sell away the suit land or create any further charge on the land in dispute except the mortgage already effected by her. I also reverse the findings of the lower appellate Court which are contrary to the findings of the trial Court.

Resultantly, I accept this appeal, set aside the judgment and decree dated 8.2.1990 passed by the Court of Additional District Judge, Kurukshetra, and dismiss the suit of the plaintiff-respondent, as prayed for. There will, however, be no order as to costs.