Palaxayya and Others vs Shantaveerayya and Others

B.V. Nagarathna, J.—1. Defendant No. 1 in O.S. No. 71/1981, has preferred this second appeal, assailing judgment and decree passed in R.A. No. 3/2004 dated 18.12.2009 by the Fast Track Court at Gadag, confirming judgment and decree passed in O.S. No. 71/1981 by Civil Judge Court, Gadag.

For the sake of convenience, parties shall be referred to, in terms of their status before the trial Court.

The respondent " plaintiff filed the suit seeking declaration of title and permanent injunction against the defendants in respect of suit schedule property or alternatively for recovery of possession of suit property from defendants. Suit property is an agricultural land bearing R.S. No. 144/3 measuring 7 acres 2 guntas and house property bearing T.M.C. No. 63/C situated at Naregal T.M.C. limits.

It is the case of plaintiff that these properties are owned by him. They were earlier purchased and owned by Shri Chandrashekar Swami @ Chandrashekar Shivacharya Gururachotiswami Amargol " Hiremath about 40-45 years ago. They were self acquired properties of Chandrashekar Swami. After the purchase of said properties, his name was entered in the T.M.C. records. Chandrashekar Swami''s sister was Virupavva W/o. Rudragouda Guruvadeyar of Kodikoppa. She had no means to maintain herself. The suit properties were given by her brother Chandrashekar Swami under a registered deed dated 04.08.1967 for her maintenance. Thereafter Virupavva''s name was entered in the record of rights. According to the plaintiff, the suit properties were given to her with a specific condition that suit properties should revert to Chandrashekar Swami or his heir or a person whom he authorises after his death to enjoy the suit properties. That Virupavva could enjoy the suit properties for her maintenance during her life time. That on 02.10.1977 Chandrashekar Swami died. But he had bequeathed suit properties in favour of plaintiff under a registered Will dated 04.08.1976. That Virupavva, sister of Chandrashekar Swami died on 16.11.1978 in Kodikoppa village. That after the death of Virupavva, plaintiff was entitled to suit properties absolutely in terms of Will executed by Chandrashekar Swami in his favour on 04.08.1976. But, Virupavva, during her life time had executed a Will in favour of defendant No. 1, appellant herein on 08.10.1978. According to plaintiff, Virupavva had no competency to execute said Will. In the circumstances, on demise of Virupavva, it was only plaintiff, who was absolute owner and who was entitled to possession of suit properties. As defendants resisted the claim of plaintiffs, the latter was constrained to file the suit seeking declaration and consequential injunction or recovery of possession.

It is further stated that defendant No. 1 is son-in-law of Virupavva and defendants No. 2 to 5 are daughters of deceased Virupavva. They cannot claim any right in suit properties, as Virupavva had a limited interest in said properties. Initially, plaint was filed before Munsiff Court at Ron. But the said Court returned plaint and it was re-presented to the Court at Gadag.

On service of suit summons and Court notice, defendant No. 1 appeared and filed his written statement. Defendants No. 2 to 5 also filed separate written statements through their Advocates. Defendants admitted that deceased Chandrashekar Swami was the elder brother of deceased Virupavva, mother of defendants No. 2 to 5 and mother-in-law of defendant No. 1.

It was also admitted that deceased Virupavva was enjoying suit properties in lieu of maintenance and she was in possession of same till her death. It was contended that Virupavva had executed a Will dated 08.10.1978 in favour of defendant No. 1 bequeathing suit properties to him. It was denied that Chandrashekar Swami had executed any Will in favour of plaintiff. It was denied that plaintiff was owner of suit properties under a Will alleged to have been executed by Chandrashekar Swami on 04.08.1976 or that plaintiff was in possession of said properties. It was also contended that suit properties were not the self-acquired properties of deceased Chandrashekar Swami. But they were ancestral properties and they belong to Andanayya, who is father of Chandrashekar Swami and Virupavva. That suit properties were given to Virupavva for her maintenance during his life time and same was continued by her brother Chandrashekar Swami, after the death of Andanayya.

It was further contended that Virupavva had bequeathed suit properties to defendant No. 1 as absolute owner by Will dated 08.10.1978. It was denied that Virupavva had only a life interest in suit properties. That after the demise of Virupavva, plaintiff, defendant No. 1 and defendants No. 2 to 5 gave wardi to enter their names in the revenue records in respect of suit properties. But defendant No. 1 gave wardi to T.M.C., Naregal and got his name entered in respect of suit house. Plaintiff has not given any such wardi to enter his name in respect of the suit house. That originally suit land, which belongs to Andanayya, father of Chandrashekar Swami was sold to Basappa with a condition that same should be reconveyed to Andanayya on payment of Rs. 1,500/-. That, in the year 1931 Basappa reconveyed suit land to Andanayya on acceptance of Rs. 1,500/- and Andanayya had given suit land for the purpose of maintenance of Virupavva during his life time. But Andanayya had directed that suit land be registered in the name of his son Chandrashekar Swami. As Virupavva was in possession of the suit land in lieu of her maintenance she became the owner of suit property by virtue of Section 14 of Hindu Succession Act, 1956 (hereinafter referred to as ''the Act'', for brevity). That Chandrashekar Swami had no right, title or interest in suit properties and Will alleged to have been executed by Chandrashekar Swami in favour of plaintiff is fraudulent.

Defendant No. 1 filed additional written statement contending that Chandrashekar Swami had become a Sanyasi, and therefore, he had lost all right, title and interest in family properties as Chandrashekar Swami became a Sanyasi, which amounted to civil death. That Virupavva being in possession of suit properties for over 12 years had become owner of suit properties by virtue of adverse possession. Hence, Will executed by her was in accordance with law and valid as she was absolute owner of suit properties. Therefore, defendants sought for dismissal of suit.

On the basis of above pleadings, trial Court framed the following issues and additional issues for its consideration:

Is the suit house valued properly?

Whether the plaintiff proves that the suit properties were the self-acquired properties of late Chandrashekarswami?

Whether defendant No. 1 proves that Virupavva become the absolute owner of the suit properties by operation of Section 14(1) of Hindu Succession Act?

Whether the Will executed by deceased Chandrashekarswamy in favour of plaintiff is legal, valid and binding on the defendants?

Whether the plaintiff proves that he was in possession of the suit properties as on the date of suit?

Whether plaintiff proves the obstruction?

Whether defendant No. 1 proves that deceased Virupavva has executed a valid Will in his favour?

Whether defendants No. 2 to 5 prove that they are in possession of the suit properties?

Whether the plaintiff is entitled for the reliefs prayed for?

What order and decree?

Additional Issue:

Whether defendant No. 1 proves that he has become the owner of the suit properties by adverse possession?

Whether Chandrashekar Swami has lost his right and interest in the suit properties after becoming Sanyasi?

In support of his case plaintiff examined three witnesses and produced ten documents, which were marked as Exs. P-1 to P-10. The defendants examined five witnesses. They produced eight documents, which were marked as Exs. D-1 to D-8. On the basis of said evidence, trial Court treated issue No. 1 as a preliminary issue and held it in the negative, and the plaintiff thereafter paid additional court fee. Issues No. 2, 4, 7, 8 and 9 were held in the affirmative. Issues No. 3, 5, 6 and Additional Issues No. 11 and 12 were held in the negative. The trial Court decreed the suit by holding that plaintiff was owner of suit properties and entitled to recover possession from defendants. A direction was issued to defendants to hand over possession of suit properties to plaintiffs. Being aggrieved by judgment and decree of trial Court dated 17.08.1984, defendant No. 1 filed R.A. No. 3/2004 before the Fast Track Court at Gadag (I Appellate Court). The said Court after hearing respective counsel framed following points for its consideration:

Whether the plaintiffs prove that, suit properties are the self acquired properties of Late Chandrashekarswamy?

Whether plaintiff proves that, deceased Chandrashekarswamy executed a registered will deed bequeathing suit properties in his favour?

Whether the defendant No. 1 proves that, Virupavva was absolute owner of suit properties?

Whether the will deed executed by Virupavva is valid and binding upon plaintiff?

Whether the plaintiff proves that, defendants No. 2 to 5 are in possession of suit properties?

Whether the judgment and decree of lower court calls for any interference by this Court?

What order or decree?

It answered points No. 1 and 2 in affirmative, points No. 3 to 6 in negative and dismissed appeal by judgment and decree dated 18.12.2009. Being aggrieved by judgment and decree of I Appellate Court, defendant No. 1 has filed his second appeal.

I have heard learned counsel for appellant and learned counsel for respondent No. 1. Service of notice on other respondents is held to be sufficient.

It is contended on behalf of appellant that both the courts were not right in holding that registered maintenance deed dated 14.08.1967 executed by Chandrashekar Swami in favour of his sister Virupavva granted only a limited right in suit properties. She contended that under Section 14(1) of the Act, any property which comes into possession of a female Hindu, whether acquired before or after commencement of Act, shall be held by a female as a full owner and not as a limited owner. Therefore, Virupavva had complete and absolute ownership of suit properties. She had every right and competency to bequeath said properties to defendant No. 1. In terms of Will of Virupavva dated 08.10.1978 defendant No. 1 and appellant herein became owner of said properties on the demise of Virupavva on 16.11.1978. She, therefore, contended that courts below were not right in holding that Virupavva had only a limited interest in suit properties and by also holding that plaintiff had succeeded to suit properties by virtue of Will of Chandrashekar Swami dated 04.08.1976. She contended that Chandrashekar Swami had no right, title and interest in respect of suit properties when once registered maintenance deed was executed by him in favour of Virupavva on 14.08.1967. Therefore, Chandrashekar Swami had no competency to bequeath suit properties to plaintiff.

In the circumstances, she contended that substantial questions of law arise in this appeal, which may be admitted for a detailed hearing.

Per contra, learned counsel for respondent plaintiff, supporting judgment of Courts below, drew my attention to registered maintenance deed dated 14.08.1967, Ex. P-9 equivalent to Ex. D-1 and on placing the same, he contended that right, title and interest of Virupavva in the suit properties, which were given to her in lieu of her maintenance, was only a limited interest. That Section 14(1) was not applicable when Section 14(2) of the Act, was applicable as the said sub-sections are mutually exclusive. That under the instrument of maintenance given by Chandrashekar Swami in favour of Virupavva, his sister, a limited interest was created in Virupavva and that too, for her life time and on the death of Virupavva, suit properties had to revert to Chandrashekar Swami or to whomsoever he would have nominated for the purpose of enjoyment of said properties. He contended that registered maintenance deed comes within the scope of expression, "other instrument" in sub-section (2) of Section 14 of the Act, and hence, sub-section (1) of Section 14 was not applicable in the instant case. The Courts below were, therefore, justified in holding that plaintiff Shantaveeraswami had succeeded to properties pursuant to Will dated 04.08.1976 executed by Chandrashekar Swami in his favour, but after the demise of Virupavva on 16.11.1978.

Placing reliance on the judgment of Hon''ble Supreme Court in the case of Vaddeboyina Tulasamma and others vs. Vaddeboyina Sesha Reddi (dead) by L.Rs., , AIR 1977 SC 1944 and by also referring to a judgment of Division Bench of this Court in 1972(1) M.L.J. 315, he contended that this is not a case where Virupavva had any pre-existing right, title or interest in suit properties. There was no legal obligation on the part of Chandrashekar Swami to maintain his married sister. But, on account of moral obligation he gave these properties for her maintenance only for her life time. Therefore, Section 14 (1) of the Act did not apply. There was no enlargement of limited estate into an absolute estate in the instant case in Virupavva, and hence, Courts below were justified in decreeing the suit of plaintiff. He contended that no substantial question of law would arise in this appeal, and therefore, appeal may be dismissed.

Having heard learned counsel for parties and on perusal of material on record, it is noted that Virupavva was sister of Chandrashekar Swami, both of them were children of Andanayya. Originally, Andanayya was absolute owner of suit properties. On the demise of Andanayya, his son Chandrashekar Swami had succeeded to suit properties. But having regard to financial constrains and plight of his sister Virupavva, Chandrashekar Swami had executed a registered maintenance deed dated 14.08.1967, Ex. P-9 equivalent to Ex. D-1 in favour of Virupavva for her maintenance during her life time. The maintenance deed contains a specific condition that said properties are to be enjoyed by her during her life time and on her demise they would revert to Chandrashekar Swami or his nominee.

It is established that Virupavva died on 16.11.1978 and Chandrashekar Swami died prior to that on 02.10.1977. Both Virupavva as well as Chandrashekar Swami had executed their respective Wills in respect of suit schedule property. Chandrashekar Swami, who died on 02.10.1977 had executed Will in favour of plaintiff on 04.08.1976, whereas, Virupavva, who died on 16.11.1978 had executed a Will in favour of Palaxayya on 08.10.1978.

The question to be considered in this appeal is, ''Whether Virupavva had become absolute owner of suit schedule properties by virtue of sub-section (1) of Section 14 of the Act?''

Sub-section (1) of Section 14 is no doubt plenary and broad based in nature, but sub-Section (2) of Section 14 qualifies sub-section (1) of Section 14 of the Act. The said Section reads as follows:

"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 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 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."

The Hon''ble Supreme Court in the case of Vaddeboyina Tulasamma, has held that, sub-section (1) of Section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance. Where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property. Sub-section (2) is more in the nature of a proviso or exception to sub-section (1). It excepts certain kinds of acquisition of property by a Hindu female from the operation of sub-section (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of woman in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in sub-section (1). It cannot be interpreted in a manner which would rob sub-section (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub-section (1).

Sub-section (2) must, therefore, be read in the context of sub-section (1) so as to leave as large a scope for operation as possible to sub-section (1) and so read, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of subsection (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property.

Thus, after holding so, the Hon''ble Supreme Court has categorically held that where property is acquired by Hindu female under an instrument for the first time without any pre-existing right solely by virtue of the instrument, she must hold it on the terms on which it is given to her and if what is given to her is a restricted estate, it would not be enlarged by reason of sub-section (2). Therefore, the test is whether the property is held by a female Hindu under a pre-existing right or whether it is acquired for the first time as a grant with a restrictive clause.

In the said case, appellant had claimed maintenance out of joint family properties in the hands of respondent, who was her deceased husband''s brother. The claim was decreed in favour of appellant therein and in execution of decree for maintenance, compromise was arrived at between parties allotting properties in question to appellant therein for her maintenance and giving her limited interest in such properties.

It was held that, since the properties in question were acquired by appellant therein 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, 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.

The Hon''ble Supreme Court further held that, the legislative intendment was that sub-section (2) of Section 14 was applicable to only cases where acquisition of property was made by a Hindu female for the first time, without any pre-existing right, a kind of acquisition akin to one under gift or Will, in such a case sub-section (2) of Section 14 would apply. The said subsection would not apply where, however, property was acquired by a Hindu female at a partition or in lieu of right of maintenance, it is by virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of sub-section (2), even if the instrument, decree, order or award allotting the property prescribed a restrictive estate in the property. Thus, when property was acquired by a Hindu female under an instrument for the first time without any pre-existing right solely by virtue of the instrument, she must hold it on the terms on which it is given to her and if what is given to her is a restricted estate, it would not be enlarged by reason of sub-section (2). Thus, in every case, it is necessary to ascertain as to whether the property is acquired by Hindu female by virtue of a pre-existing right or acquired for the first time as a grant owing its origin to the compromise alone and to nothing else.

It is noted that, in the instant case, the registered maintenance deed Ex. P-9 equivalent to Ex. D-1 categorically states that the suit properties have been given to Virupavva for her maintenance during her life time and after her demise the same would revert to Chandrashekar Swami, her brother, or to his nominee. It is, therefore, a case where sub-section (2) of Section 14 is applicable and not sub-section (1) of Section 14 of the Act as Virupavva had no pre-existing right of maintenance vis-a-vis the said property. The brother of Virupavva only under a moral, and not legal obligation, had executed the registered maintenance deed in her favour, for her maintenance, during her life time only. Both the courts below have approached the matter in a proper perspective and have rightly held that there was no enlargement of right in Virupavva in terms of sub-section (1) of Section 14 of the Act, as the registered maintenance deed dated 14.08.1967 gave a restricted right to her, and hence, the case came within the scope of sub-section (2) of Section 14 of the Act.

It is, in this context, that Chandrashekar Swami, prior to his death, had executed a Will dated 04.08.1976 in favour of plaintiff bequeathing his right in the suit schedule properties, which would revert to him on the demise of Virupavva, to plaintiff. But, Shantaveera Swami could not exercise his rights over suit properties until the demise of Virupavva. Although Will of Chandrashekar Swami came into effect, soon after his demise, on 02.10.1977 Virupavva was alive as on that day. Hence, Shantaveera Swami could not exercise his right in relation to suit properties until 16.11.1978 when Virupavva died.

It is, thereafter, that he demanded possession of suit schedule properties from defendants when at that stage defendant, No. 1 set up a Will said to have been executed by Virupavva in his favour on 08.10.1978. Though both Courts have held that Virupavva had indeed executed Will dated 08.10.1978 in favour of defendant No. 1, but in view of registered maintenance deed falling within the scope of sub-section (2) of Section 14 of the Act, Will of Virupavva could not be enforced.

In the circumstances, both Courts have held that defendants had no right, title or interest in respect of suit properties and that plaintiff had to be declared owner of suit properties by virtue of the Will of Chandrashekar Swami dated 04.08.1976, which was proved in accordance with law and a direction was issued to defendants to hand over suit properties to plaintiffs. I do not find any infirmity in the judgments of courts below. No substantial question of law arises in this appeal. The appeal is dismissed.

Parties to bear their respective costs.