Radhabai Ganpati vs Bhimrai Gyanoba

G.N. Vaidya, J.—The above Second Appeal is filed by the defendants against the concurrent decrees passed by the two Courts below, declaring that by virtue of section 14 of the Hindu Succession Act or by virtue of the document exh. 49 under which defendant No. 1 was put in possession of the suit property in lieu of the maintenance right, defendant No. 1 did not become the absolute owner thereof and restraining defendant No. 1 from alienating the suit property. The admitted genealogy showing the relation between the parties is as follows:

On September 18, 1963 the respondent-original plaintiff filed a suit for a declaration that defendant No. 1 Radhabai was entitled to enjoy the possession of the suit property only during her lifetime and for the issue of a perpetual injunction restraining defendant No. 1 from alienating or wasting the suit property. The suit property consists of two pairs of bullocks, a cow, a she-buffalo, utensils worth Rs. 300, a pair of silver Kadas, a golden Chitang, a Nose ring, Rs. 750 in cash, a bullock-cart, a cattle-shed covered with zinc sheets, a double storeyed room, S. No. 25 measuring 12 acres 20 gunthas and S. No. 26 (AA) measuring 11 acres and 11 gunthas, situated at village Patoda Khurd in taluka Kinwat, district Nanded.

The plaintiff contended that the husband of defendant No. 1 Ganpati who was the plaintiff''s paternal grandfather''s real brother died in or about 1940 A. D. in a state of jointness with the plaintiff''s grand-father Tukaram, long before the Hindu Women''s Rights to Property Act came into force in Nanded. There is no dispute that Radhabai did not get any right under the Hindu Women''s Rights to Property Act as prevailing in Hyderabad. It was alleged by the plaintiff that a written agreement dated June 29, 1950, exh. 49, was executed by way of family arrangement between the mother of the plaintiff and defendant No. 1 and under that family arrangement the suit properties were given to defendant No. 1 to be enjoyed by her During her lifetime. Under the said agreement she acknowledged that she had no right to mortgage or sell or to take in adoption.

The relevant words in exh. 49 are as follows:

In view of these terms and in view of the concurrent findings recorded by the two Courts below that the suit property was joint family property, the two Courts granted an injunction restraining defendant No. 1 from alienating or disposing of the suit lands and house in any way.

The said concurrent finding is challenged by Mr. Lovekar the learned counsel for the appellants on defendant''s behalf contending that the decrees passed by the two Courts below are contrary to section 14 (1) of the Hindu Succession Act. Mr. Lovekar submitted that the two Courts below erred in law in applying the provisions of section 14 (2) to the facts of this case, inasmuch as defendant No. 1, as a widow of a coparcener, had a right of maintenance and she had, therefore, a right to be in possession of the suit property independently of the document exh, 49.

In support of his contention, Mr. Lovekar relied on the decision of the Supreme Court in Seth Badri Prasad Vs. Srimati Kanso Devi, and the decision of Palekar and Kania JJ. in Annasaheb v. Gangabai 1971 Mh. L J 657 : (1970) 73 Bom, L R 407. He also submitted that the Andhra Pradesh High Court has held that even if a widow is in possession of the property otherwise than under any decree for possession of the property in lieu of maintenance, her right of possession ripens into full ownership u/s 14(1) of the Hindu Succession Act. In Badri Pershad''s case the Supreme Court considered the case of a female Hindu acquiring an interest under the Hindu Women''s Rights to Property Act, 193?. It is, therefore, not relevant to the present case. In Annasaheb v. Gangabai this Court considered the effect of section 14 on the right of the widow who was in possession of the property under an award decree passed in 1903.

It is well-established that the claim of a widow for maintenance is not a charge upon the estate of her deceased husband, whether joint or separate, until it is fixed and charged upon the estate. This may be dons by a decree of a Court or by an agreement between the widow and the holder of the estate, or by the will by which the property was bequeathed. (See para. 569, Mulla''s Hindu Law, 13th edn., at p. 556.)

In Annasaheb''s case referred to above it is laid down that the provision in section 14 (2) of the Hindu Succession Act, which is by way of exception, must be strictly construed and will have no application to cases except those where for the first time a new right for property is created, unrelated to the antecedent right or interest in the grantee either in respect of the actual property which is the subject-matter of the grant or the family property the claim against which is crystallised in the allotted property. It is contended by Mr. Lovekar that in view of the said decision of this Court it must be held that when Radha-bai entered into possession of the suit property under the agreement which is held to be a family arrangement by the two Courts below, she acquired the property as a limited owner prior to the commencement of the Hindu Succession Act and therefore, her right ripened into full ownership right u/s 14 (1) having regard to the Explanation to section 14 (1).

As against this, Mr. Deshpande contended relying on the decision of the Supreme Court in S. Shanmugam Pillai and Others Vs. K. Shanmugam Pillai and Others, , and the decision in Kunji Thomman and Others Vs. Meenakshi and Others, , that the mere fact that Radhabai entered into the possession of the suit land under the family arrangement did not constitute the suit property as her property within the meaning of section 14 (1). He submitted that her plea in the trial Court as well as in the appellate Court was that exh. 49 amounted to partition and, therefore, the property was allotted to her as her share in the coparcenary property and not by way of maintenance.

It cannot be disputed that Radhabai had a right of maintenance in respect of the suit property. That right crystallised into a right of possession of the suit property under the Sulenama, exh. 49, irrespective of whether exh. 49 is a document by way of partition or by way of family arrangement or by way of maintenance. Exhibit 49 does not expressly state anything about the motive or intention of the parties or the objects of the parties when they entered into the agreement. All that it shows is that there was a dispute between the parties and in the presence of the ponchos an agreement was entered into. It cannot, therefore, be said that Radhabai acquired under that instrument alone her right to the suit property. Her antecedent right of maintenance is crystallised under the agreement. Hence in my judgment the ratio in Annasaheb''s case is attracted to the facts and circumstances of the case; and it must be held that the two Courts below erred in law in holding that section 14 (2) applies to the case and not section 14 (1).

The Two courts below ignored the explanation to section 14 (1), which lays down:

"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 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."

It is manifest that the suit property was given to Radhabai in lieu of her maintenance, whether exh. 49 is construed as an award or partition deed or Sule-nama, as it calls itself or family arrangement. It is also clear that as Radhabai, defendant No, 1 had an antecedent right to maintenance and to be in possession in lieu of maintenance under the agreement, those rights must be held to have ripened into full ownership u/s 14 (1).

I do not see any difference in principle between the case of the widow who acquired property under an award-decree as in Annasaheb''s case and the ease like the present one where she acquired the property under an agreement, exh. 49. The following principle was staled by Palekar J., as he then was, at 416:

"In the present case, there is a further reason to hold that Hirabat had not only a right to enforce her claim for maintenance against the family properties which was antecedent 10 the sward, but she had also a sufficient possessory title to the lands. She was in possession of the lands after the death of her father-in-law and her husband. That gave her a possessory title which could not have been displaced by the coparcener without making proper arrangement for her maintenance."

With respect, the same principle will apply to a case like the present one where Radhabai entered into possession in the year 1950, long before the Hindu Succession Act came into force, with the consent of the coparcener. She was not a trespasser on the suit property. She went into possession in lieu of her right of maintenance under the agreement. She had admittedly the right to claim maintenance from the joint family property. Hence I am of the opinion that Annasaheb''s case applies to the facts of the present case.

S. S. Pillai v. K. S. Pillai, relied on by Mr. Deshpande, is not relevant to the present case because it was not a case u/s 14 of the Hindu Succession Act. The Kerala case relied upon by Mr. Deshpande is also distinguishable because in that case the widow was daughter-in-law, in respect of whom there was no evidence to show that she had a right to claim a share in the properties in lieu of her maintenance. The Kerala High Court observed (p. 288);

"...There is nothing on evidence to show that the allotment of properties to the second defendant was in recognition of her legal right for maintenance attached to the properties of Vatta Govindan Ext. P-l is in the nature of a family arrangement under which properties have Been allotted Even to persons who are not entitled to the same on the date of Ext. P-l. This is there-fore a case where the second defendant alleged to be a maintenance-holder consented to allotment of properties not according to strict legal rights, in a deed which is in the Nature of a family settlement and which expressly stated that she had only a life interest in the properties given to her creating a vested remainder in favour of others."

Without expressing any opinion on the view taken by the Kerala High Court, T would distinguish that case from the facts of the present case where as stated already admittedly Radhabai had an antecedent right of maintenance before the execution of the document exh. 49.

The view which I am taking with regard to the effect of section 14 in relation to the agreement, exh. 49, is similar to the view taken by a Division Bench of the Andhra Pradesh High Court in Gadam Reddayya Vs. Varapula Venkataraju and Another, . In that case also a clause in a maintenance deed executed by the adopted son in favour of his adoptive mother stated:

"Challamma during her time, can raise the crops and shall enjoy the fruits and she cannot contract any debts on the security of the said lands." Challamma, the adoptive mother, to whom the maintenance was given by this deed died after the coming into force of the Hindu Succession Act.

The question before the Andhra Pradesh High Court was whether sub-section (J) or (2) of section 14 of the Act was attracted, that is whether she became absolutely possessed of the subject matter of the maintenance or whether she had obtained only a restricted estate in the property. Before the execution of the maintenance deed, Challamma had denied the factum of adoption and claimed the whole of the property for herself, while the adopted son had asserted his right as adopted son. It was this dispute that was settled by the mediators. P. Chandra Reddy C. J. speaking for the Division Bench observed at p. 67, para 9:

"...it was clause (?) that made the estate conferred on her limited to her life. So, this document evidences a family settlement, in that, the differences between the parties were resolved and the pre-existing rights of each other, recognised. As such, it is not a new right that was conferred upon the widow Under this document The restriction referred to above merely set out the legal effect on her estate as maintenance holder. This was another way of stating that the widow could have a life estate in the property and that she is to enjoy these properties in lieu of her maintenance. It is not disputed that a maintenance holder cannot alienate properties beyond her life time. Her rights cannot be equated to a widow''s estate. In these circumstances, the instant case falls outside the scope of sub-section (2) and is governed by sub-section (1) of section 14."

For these reasons, the Second Appeal is allowed. The decrees passed by the two Courts below are set aside and the plaintiff''s suit is dismissed. Having regard to the near relations of the parties and the uncertainty which existed when the suit was filed regarding the proper interpretation of section 14, the parties should bear their respective costs throughout.