Nand Ram vs Vidya

V.P. Gupta, J.—Shri Nand Ram, Appellant (hereinafter the Plaintiff) filed a Civil Suit in the Court of Sub-Judge, Kullu.on 27-7-1965 for declaration to the effect that he was the owner in possession of the suit property (described in the plaint) and was entitled to remain in possession of the same as an owner. In the alternative he prayed for possession of the suit property.

It was alleged that Khimi Ram son of Damodar, the last male owner of the suit property, died on the night intervening 30th September, 1932 and 1st October, 1932. On his death, the mutation of inheritance was sanctioned in favour of his three widows, namely, Smt. Khunkhi, Smt. Nengu and Smt. Durga. Smt. Khunkhi died in 1953, while Smt. Nengu died in 1960. Smt. Durga also died on 8-3-1965. After the death of Smt. Khunkhi, her property was inherited by Smt. Nengu and Smt. Durga in equal shares. On the death of Smt. Nengu in 1960, she was succeeded by her daughter Smt. Vidya Respondent (hereinafter the Defendant).

Smt. Durga executed a registered will (Ex. P-l) in favour of the Plaintiff on 27-2-1965 and the Plaintiff claimed to be the owner and in possession of the disputed property on the basis of the will Ex. P-l.

The suit was contested by the Defendant who denied the various allegations. She admitted that Khimi Ram was the last male owner of the suit property but alleged that Shri Khimi Ram had executed a will in her favour and she became the owner of the property by virtue of this will. The three widows of Khimi Ram were only limited owners and had no right of alienation. The will of Smt. Durga was void and ineffective. Other allegations of the plaint were also denied.

On the pleadings of the parties, the following issues were framed on 30-9-1965:

Whether Smt. Durga was a limited owner of the disputed land ? OPD.

Whether Smt. Durga made a valid will in favour of the Plaintiff regarding the disputed land ? OPP.

Whether the plaint has been properly valued for purposes of Court fee and jurisdiction ? If not, what is the correct value? O. P. Parties.

Relief.

It may be mentioned that the counsel for the Defendant gave the following statement on 30-9-1965:

Mst. Durga remained in possession of the disputed land as limited owner.

The suit for declaration was decreed by the learned Sub-Judge on July 1, 1968, who decided issue No. 1 against the Defendant and issue No. 2 in favour of the Plaintiff. The plaint was found to be properly valued for purposes of Court fee and jurisdiction.

Feeling aggrieved from the judgment and decree dated July 1, 1968 of the Sub-Judge, Kullu, the Defendant filed a Civil Appeal No. 65 of 1968 in the Court of District Judge, Kullu. The learned District Judge vide his judgment and decree dated 13th November, 1969 accepted the appeal of the Defendant and dismissed the Plaintiff''s suit. He decided issue No. 1 in favour of the Defendant and issue No. 2 against the Plaintiff.

The Plaintiff thereafter filed a Regular Second Appeal No. 25 of 1970 in this Court and a learned single Judge vide his judgment dated October 28, 1974 dismissed the Plaintiff''s appeal with costs. Before the learned single Judge, it was contended that the will by Khimi Ram was not a genuine document but this contention was not accepted. It was also contended that Smt. Durga was the full owner of the property and Section 14(1) of the Hindu Succession Act (hereinafter Act) was applicable to the facts and circumstances of the case but the learned single Judge found that the case was covered u/s 14(2) of the Act and Smt. Durga was not the full owner of the property. He also held that Smt. Durga had no right to execute a will.

Feeling aggrieved from the judgment dated October 28, 1974, the Plaintiff has now filed the present appeal (LPA No. 7 of 1975). The Defendant has also filed (Cross objection No. 26 of 1975).

By this judgment, we are disposing of the appeal as well as the cross objections.

In the cross-objections, the learned Counsel for the Respondent (Defendant) contended that the appeal before the learned single Judge was also liable to be dismissed on the ground of limitation.

We find no force in this contention of the learned Counsel for the Respondent.

The judgment of the District Judge was announced on November 13, 1969 and application for obtaining the copies was filed on November 18, 1969. The copies were obtained by the Appellant on November 25, 1969 and the Second Appeal was filed on March 9, 1970, because March 8, 1970 was Sunday. The limitation for filing the appeal expired on 28-2-1970, but in February 1970, the High Court was closed due to winter vacations. The High Court re-opened on March 2, 1970. The Plaintiff/Appellant had filed an application (CMP No. 52/1970) for condoning the delay in filing the appeal. This application was allowed on August 22, 1974 by a learned single Judge, who passed the following orders:

CMP 52 of 1970: I have heard learned Counsel for the parties and in my opinion there is sufficient ground for condoning the delay in filing this appeal. The application is allowed, the delay is condoned and the appeal shall be deemed to have been filed in time.

Thus, the delay in filing the appeal was condoned by the learned single Judge after considering the various facts.

In the facts and circumstances of the case and in view of the allegations made in CMP No. 52 of 1970 filed in RSA No. 25 of 1970, we find that the learned single Judge was justified in condoning the delay in filing the appeal and we find no reason to interfere with the discretionary order passed by the learned single Judge. The learned Counsel for the Respondent also did not press the cross-objections. In view of the aforesaid circumstances, the cross-objections of the Respondent (Cross Objections No. 26 of 1975) are dismissed.

In appeal the only question for determination is as to whether the estate of Smt. Durga was enlarged u/s 14(1) of the Act or not. If the provisions of Section 14(1) of the Act are applicable then Section 14(2) of the Act will not apply. At the outset we may mention that the parties admit the due execution, validity and genuineness of the will dated September 30, 1932 (Ex. D-l) executed by Shri Khimi Ram. Khimi Ram died on 1-10-1932 and the mutation No. 624 of his inheritance (Ex. D-6) was sanctioned in favour of Smt. Khunkhi, Smt. Durga and Smt. Nengu on 30-11-1932. On the death of Smt. Khunkhi, mutation No. 338 of her inheritance was sanctioned in favour of Smt. Durga and Nengu in equal shares on 27-6-1953 and after the death of Smt. Nengu, the mutation No. 1035 of her inheritance (Ex. D-9) was sanctioned in favour of Smt. Vidya (Defendant) on 8-11-1960.

Smt. Khunkhi, Smt. Durga and Nengu sold some property out of the disputed property in favour of Lakhat Ram son of Bhuru and a mutation was sanctioned on 2nd February, 1937. Lakhat Ram subsequently gifted this property in favour of Tula Ram son of Jawahar Lal and Tula Ram sold the same to Gulab Chand, who further sold it to Salig Ram and Smt. Relu. Aggrieved from these alienations, the Defendant filed Civil Suit No. 99/1945 in the Court of Sub-Judge, Kullu, claiming a declaration to the effect that the aforesaid alienations were ineffective upon her rights after the death or remarriage of Smt. Khunkhi, Smt. Durga and Smt. Nengu. In para 4 of this plaint (Ex. D-2), the Defendant alleged that Smt. Khunkhi, Smt. Durga and Smt. Nengu had limited rights (maintenance rights) in the property and were entitled to remain in its possession in lieu of maintenance during their life time but had no right of alienation. The suit was finally decreed on 9th May, 1946 on the basis of a compromise and the copy of the decree sheet is Ex. D-8. The copies of the statements of the learned Counsel for the parties are Ex. D-4 and D-5. In Ex. D-5, the counsel for the present Defendant stated that the Defendant had no right to become owner during the life time of Smt. Khunkhi, Durga and Nengu. In Civil Suit No. 99 of 1945 the present Defendant had admitted that Smt. Khunkhi, Durga and Nengu had a limited estate in the disputed property in lieu of maintenance.

By will Ex. D-l, also Khimi Ram had bequeathed a part of his property in favour of his daughter''s son Amin Chand, for which mutation No. 823 (Ex. D-3) was sanctioned on 20-11-1932.

The present disputed property is the remaining property of Khimi Ram mentioned in the will Ex. D-l. For this disputed property, Khimi Ram has stated in the will Ex. D-l, as follows:

The remaining land and other Immovable property, I give to my daughter Vidya. Till the time my three wives are there, they will look after the same and will also maintain themselves out of it. After the death of my three wives, my daughter Vidya will have the right in the moveable and Immovable properties.

Thus, the language used in the will proves that the three wives/widows of Khimi Ram were to enjoy the property during their life time in lieu of maintenance and after their death, Smt. Vidya was to become the owner of the property. The recitals in the will Ex. D-l unequivocally prove that the three widows of the testator were entitled to remain in possession of the property of the testator during their life time in lieu Of maintenance and were given a widow''s life estate in the property.

The harmonious reading of the will clearly shows that the property was to vest in Vidya after the death of the three widows and not earlier. Section 88 of the Indian Succession Act also provides that where two clauses of gifts in a will are irreconcilable, so that they cannot possibly stand together, the last shall prevail. In view of this provision in Section 88 of the Indian Succession Act, the last clause in the will is to prevail which clearly recites after the death of the widows Smt. vidya will have a right in the moveable and Immovable property.

The learned Counsel for the (Defendant) Respondent contended that the widows never became the full owners of the property u/s 14(1) of the Hindu Succession Act but this contention cannot be accepted, for the reason that the widows were entitled to a widows life estate and the testator had in fact given them a widows life estate only in lieu of their right of maintenance.

The learned Counsel for the Respondent further contended that the interest in the property created by the will Ex. D-l was a restricted estate and the case was covered u/s 14(2) of the Hindu Succession Act. This contention of the learned Counsel also cannot be accepted. The widows Were given a right to possess the property during their life time in lieu of the maintenance.

In AIR 1977 SC 1944, [Veddeboyina Tula-samma and Ors., Appellants v. Veddeboyina Sesa Reddi (dead) by L.Rs. Respondents], para 14 of the judgment reads as follows:

Under the Hindu Law the husband has got a personal obligation to maintain his wife and if he is possessed of properties then his wife is entitled as of right to be maintained out of such properties. The claim of a Hindu widew to be maintained is not an empty for-mality which is to be exercised as a matter of concession or indulgence, grace or gratis or generosity but is a valuable spiritual and moral right which flows from the spiritual and temporal relationship of the husband and wife.

Para 27 of this judgment again reads as follows:

Thus on a careful consideration and detailed analysis of the authorities mentioned above and the Shastric Hindu Law on the subject, the following propositions emerge with respect to the incidence and characteristics of a Hindu woman''s right to maintenance:

(1) that a Hindu woman''s right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her even if he has no property. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow;

(2) though the widow''s right to maintenance is not right to property but it is undoubtedly a preexisting right in property, i.e. it is a jus and rem not jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a decree from the civil Court;

(3) that the right of maintenance is a matter of moment and is of such importance that even if the joint property is sold and the purchaser has notice of the widow''s right to maintenance, the purchaser is legally bound to provide for her maintenance;

(4) that the right to maintenance is undoubtedly a preexisting right which existed in the Hindu Law long before the passing of the Act of 1937 or the Act of 1946, and is, therefore, a pre-existing right;

(5) that the right to maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which the wife becomes a sort of co-owner in the property of her husband, though her co-ownership is of a subordinate nature; and

(6) that where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to property or purchases the same is in a position to make due arrangements for her maintenance.

In para 37 of the judgment, their Lordships again enunciated the various principles in the following words:

(1) that the provisions of Section 14 of the 1956 Act must be liberally construed in order to advance the object of the Act which is to enlarge the limited interest possessed by a Hindu widow which was in consonance with the changing temper of the times;

(2) it is manifestly clear that sub-section (2) of Section 14 does not refer to any transfer which merely recognises a pre-existing right without creating or conferring a new title on the widow. This was clearly held by this Court in Badri Pershad''s case (AIR 1970 SC 1963);

(3) that the Act of 1956 has made revolutionary and far-reaching changes in the Hindu Society and every attempt should be made to carry out the spirit of the Act which has undoubtedly supplied a long felt need and tried to do away with the invidious distinction between a Hindu male and female in matters of intestate succession;

(4) that sub-section (2) of Section 14 is merely a proviso to sub-section (1) of Section 14 and has to be interpreted as a proviso and not in a manner so as to destroy the effect of the main provision.

28.. In para 70 of the judgment, the following conclusions have been derived :

(i) The Hindu female''s right to maintenance is not an empty formality or an illusory claim being conceded as a matter of .grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and 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. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights.

(2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socioeconomic ends sought to be achieved by this long needed legislation.

(3) Sub-section (2) of Section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of Section 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by Section 14(1) or in a way so as to become totally inconsistent with the main provision.

(4) Sub-section (2) of Section 14 applies to instruments, decrees, awards, gifts etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-existing rights. In such cases a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the female''s limited interest would automatically be enlarged into an absolute one by force of Section 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at 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.

(5) The use of express terms like "property acquired by a female Hindu at a partition", "or in lieu of maintenance", "or arrears of maintenance" etc. in the Explanation to Section 14(1) clearly makes subsection (2) inapplicable to these categories which have been expressly excepted from the operation of sub-section (2).

(6) The words "possessed by" used by the Legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige or a claim, right or title, because the Section does not contemplate the possession of any rank trespasser without any right or title.

(7) That the words "restricted estate" used in Section 14(2) are wider than limited interest as indicated in Section 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee.

Their Lordships in paras 71 and 72 of the judgment conclude as follows:

Applying the principles enunciated above to the facts of the present case, we find- (i) that the properties in suit were allotted to the Appellant Tulasamma on July 30, 1949 under a compromise certified by the Court;

(ii) that the Appellant had taken only a life interest in the properties and there was a clear restriction prohibiting her from alienating the properties.

(iii) that despite these restrictions, she continued to be in possession of the properties till 1956 when the Act of 1956 came into force; and

(iv) that the alienations which she had made in 1960 and 1961 were after she had acquired an absolute interest in the properties.

It is, therefore, clear that the compromise by which the properties were allotted to the Appellant Tula-samma in lieu of her maintenance were merely in recognition of her right to maintenance which was a pre-existing right and, therefore, the case of the Appellant would be taken out of the ambit of Section 14(2) and would fall squarely within Section 14(1) read with the Explanation thereto. Thus the Appellant would acquire an absolute interest when she was in possession of the properties at the time when the 1956 Act came into force and any restrictions placed under the compromise would have to be completely ignored. This being the position, the High Court was in error in holding that the Appellant Tulasamma would have only a limited interest and in seating aside the alienations made by her. We are sausned that the High Court decreed the suit of the Plaintiffs on an erroneous view of the law.

In Bai Vajia (Dead) by Lrs. Vs. Thakorbhai Chelabhai and Others, , it is held "the widow''s right to maintenance is not a right to property, but it is undoubtedly a pre-existing right in property. It is true that a widow''s claim for maintenance does not ripen into a full-fledged right to property, but nevertheless this 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 for the first time and not in lieu of a pre-existing 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." In para 4 of the judgment, it is held that "ownership in the fullest sense is a sum-total of all the rights which may possibly flow from the title to property, while limited ownership in its very nature must be a bundle of rights constituting in their totality not fulf ownership but something less. When a widow holds the property for her enjoyment as long as she lives, nobody is entitled to deprive her of it or to deal with the property in any manner to her detriment. The property is for the time being beneficially vested in her and she has the occupation, control and usufruct of it to the exclusion of all Ors. . Such property falls squarely within the meaning of the expression ''limited owner'' as used in sub-section (1) of Section 14 of the Act."

In para 5 of the judgment, it is again held that a combined reading of the two Sections and the Explanation leaves no doubt that sub-section (2) does not operate to take property acquired by a Hindu female in lieu of maintenance or arrears of maintenance (which is property specifically included in the enumeration contained in the Explanation) out of the purview of sub-section (1)."

In Shakuntala Devi Vs. Beni Madhav, , one Pundri Kaksh was the owner of the property. Smt. Shakuntla was his widow. Pundri Kaksh died in 1947. Smt. Shakuntla was given compensation bonds of Rs. 10,000/-in respect of the share of her husband Pundri Kaksh, but the balance amount of compensation was withheld on the ground that she had a limited interest in the property. She made an application for the balance amount on the ground that she had become full owner and was entitled to the balance compensation amount from the Bank. Beni Madhav was the brother of Pundri Kaksh and he objected to the payment being made to Smt. Shakuntla. Pundri Kaksh had made a will of the property. Pundri Kaksh had bequeathed property to his wife saying that his wife Smt. Shakuntla would be entitled to his share in the property and would enjoy the same as a Hindu widow after his death. In these circumstances, it was held that Smt. Shakuntla got under the will the interest of a Hindu widow in her husband''s property and not a restricted estate in the sense of an estate for life.

In the present case, Smt. Durga was given the disputed property in lieu of maintenance, by Khimi Ram. The fact that she had been given widow''s life estate by Shri Khimi Ram is also evident from the fact that on the death, the life estate of Smt. Khunkhi was inherited by Smt. Nengu and Durga in equal shares. The Defendant herself in the previous litigation of 1945 also admitted that Smt. Durga had a widow''s life estate in the property. In the present suit also, the learned Counsel for the Defendant gave a statement on 30th September, 1965 to the effect that Mst. Durga remained in possession of the disputed land as a limited owner. In the written statement also, the Defendant has admitted in para 5 that according to the will of Khimi Ram, Smt. Durga had a limited estate in the property. Thus, from the pleadings in the present suit as well as from the various other proved facts, it is proved that Smt. Durga was admitted to be in possession of the disputed property as a limited owner, i.e. enjoying a widow''s estate. The right of a Hindu widow to maintenance from her husband''s property is an established right. It is further clear from the language of the will Ex. D-l that Smt. Durga was given all the rights which a widow could get i.e. a widow''s estate and she remained in possession of such widow''s estate during her life time. She being in possession of the property in her capacity as a widow become its full owner on the coming into force of the Act and by virtue of Section 14(1) of the Act. She did not acquire any rights by will and in fact the rights which were given to her were in recognition of her rights of maintenance, which were pre-existing. Section 14(2) of the Act will, therefore, have no application. This right of maintenance of Smt. Durga was a pre-existing right, which she could enforce in her capacity as a wife/widow of Khimi Ram.

The learned Counsel for the Respondent also contended that the Plaintiff never pleaded that Smt. Durga had a preexisting right of maintenance in the property, and for this reason the Plaintiff should not be allowed to raise this plea. This contention cannot be accepted in view of the fact that the Plaintiff''s simple case was that Smt. Durga was the full owner of the property and she had a right to execute a valid will in favour of the Plaintiff. The question that Smt. Durga had a preexisting right of maintenance in the property requires consideration for the purposes of determination as to whether Smt. Durga was an absolute owner of the property.

As a resuh of the above discussion, we hold that Smt. Durga was in possession of the property in dispute in lieu of maintenance and was in enjoyment of its income in her capacity as a widow of Khimi Ram. She became absolute owner of this property and her estate was enlarged by Section 14(1) of the Act. In such circumstances, she was fully competent to execute the will Ex. D-l in favour of the Plaintiff. The result is that Issue No. 1 is decided against the Defendant and issue No. 2 is decided in favour of the Plaintiff. The judgments and decrees of the learned District Judge dated 13th November, 1969 and that of the learned single Judge dated October 28, 1974 are set aside and that of the learned Sub-Judge, Kullu, dated 1-7-1968 is restored. The present appeal is accepted and the Plaintiff''s suit is decreed. In the facts and circumstances of the case, the parties are left to bear their own costs throughout.