Sambhu Charan Saha vs Indu Bala Saha

Chittatosh Mookerjee, J.—The Plaintiff-Appellant, Sambhu Charan Saha and his brother late Bhagabati Charan Saha were sons of late Harigopal Saha and it is admitted that originally each had half share in the suit property. In March 1950, Bhagabati Charan died leaving his widow, Indu Bala Saha, the Defendant-Respondent. Sambhu Charan brought Suit No. 489 of 1951 against Indu Bala in the High Court at Calcutta in its ordinary original civil jurisdiction, inter alia, for declaration, for possession and for injunction etc. On May 18, 1951 the said suit was decreed in Terms of Settlement set forth and annexed to the decree passed in the said suit.

Sambhu Charan had filed Title Suit No. 95 of 1968 against Sm. Indu Bala as the principal Defendant inter alia for declaration that Indu Bala had life interest in the property described in the schedule to the plaint without any power of alienation or any other right over the same. He, further, prayed that the relevant settlement records be declared as erroneous and a permanent injunction be granted restraining her from alienating or in cumbering the suit property. The Defendant contested the said suit inter alia claiming that she had become the absolute owner of the half share of the suit property in terms of Section 14 of the Hindu Succession Act, 1956 and therefore, the Plaintiff had no cause of action.

The learned Munsif, Second Court, Chandannagar, dismissed the suit brought by Sambhu Charan. The learned District Judge, Hooghly, dismissed the appeal preferred by him. Hence this Second Appeal. Both Courts held that by operation of Section 14(1) of the Hindu Succession Act, 1956, Indu Bala was now the absolute owner of the suit property and the Plaintiff was not entitled to it.

The scope and effect of the said Terms of Settlement in Suit No. 489 of 1951 is the principal question involved in the present Second Appeal.

Mr. Ranjit Kumar Banerjee, learned Advocate for the Plaintiff-Appellant, submitted before me that in the instant case Indu Bala, the Defendant-Respondent had acquired her interest in the suit property under the compromise decree passed in Suit No. 489 of 1951 (Ex. 4). Therefore, her restricted interest was not enlarged into full ownership in terms of Sub-section (1) of Section 14 of the Hindu Succession Act. Mr. Banerjee also contended that under the said compromise decree (Ex. 4) Indu Bala was holder of a life estate and not of a limited estate of a Hindu woman. According to Mr. Banerjee, Sub-section (2) of Section 14 of the Act was, therefore, applicable to the instant case.

I am unable to accept the above submission. It is admitted that on the death of Bhagabati Charan, his widow Indu Bala inherited a widow''s estate in the half share of the suit property. Under terms of settlement which was made part of the decree in Suit No. 489 of 1961, both Sambhu Charan and Indu Bala had declared that properties described in Parts I and II of Schedule ''A'' to the said terms were originally joint properties belonging to the estate of Hari Gopal Saha, the father of Sambhu Charan and Bhagabati Charan and that the Plaintiff and the Defendant in the said suit were each entitled to a half share therein. The said terms recorded that the movable properties in Part I had been partitioned between the parties. Further, ''the immovable properties mentioned in Pt. II of Schedule ''A'' will remain joint, but for the sake of convenience and as a family arrangement the same will be managed and the incomes thereof will be used and utilized and enjoyed by the respective parties hereto as particulars mentioned in the paras. 8, 9 and 10 hereunder written''. (Vide para. 1 of the Terms of Settlement). Thus, under the Terms of Settlement the immovable properties continued to be joint. But Sambhu Charan and Indu Bala entered into a family arrangement for management of the different items of joint immovable properties and for utilization and enjoyment of incomes thereof. The particulars of the said arrangement were set out in paras. 8, 9 and 10 of the Terms of Settlement. The property which is the subject-matter of the present Second Appeal was item No. 4 of Schedule ''A'', Pt. II of the said Terms of Settlement. Para. 9 of the Terms of Settlement contained the arrangement regarding the management, enjoyment and utilization of the incomes of the said property. Both paras. 9 and 11 were ancillary clauses containing the particulars of the modes in which Indu Bala was to enjoy her half share in the said joint property. At the relevant time she was the holder of a limited estate which share she had inherited from her late husband Bhagabati Charan. The last portion of paras. 9 and 11 of the Terms of Settlement had set out some of the incidence of her said limited estate. The restrictions upon her right to sell or to mortgage and lease for any period exceeding 5 years in substance recorded her limited and qualified powers of alienation as the then limited owner of the half share. The half share in the immovable properties was to revert to the line of succession of her husband and accordingly, the same was to devolve upon Sambhu Charan and his sons who are reversioners. It would not be correct to construe the said Terms of Settlement to mean that Indu Bala had acquired only a life interest under the above Terms of Settlement (Ex. 4). She had acquired her interest in the half share by inheritance from her husband in March 1950 and not for the first time under the compromise decree passed in Suit No. 489 of 1951. The compromise decree, on the other hand, recognised her said interest in the half share of the immovable properties which were kept joint. The provisions contained in Clauses 7, 8 and 9 which contained details of the arrangement regarding enjoyment and appropriation of income of the joint immovable properties did not reduce Indu Bala''s limited estate into a life estate. These paras. 7 and 11 did not override the clear terms of para. 1 of the Terms of Settlement. (Ex. 4)

On June 17, 1956, Indu Bala was possessing the half share of the suit properties which had devolved upon her after the death of her husband Bhagabati Charan and which had been recognized under the Terms of Compromise (Ex. 4). Therefore, alter the commencement of Hindu Succession Act, she became the full owner thereof and ceased to be a limited owner. By operation of law, Indu Bala''s interest was enlarged into absolute ownership, necessarily the fetters imposed upon her right to enjoyment over the suit properties disappeared. Restrictions upon her right of alienation were repugnant to and inconsistent with the full ownership contemplated u/s 14(1) of the Hindu Succession Act. In my view, her interest in the suit property was covered by the Explanation to Sub-section (1) of Section 14. She had acquired by inheritance half share in the suit property. Under the prevailing law, she had restricted interest. The compromise decree recorded such restrictions upon her limited ownership. After she became the full owner by operation of Section 14(1), the entire basis for restricting her power of alienation and the provisions for devolution of her interest contained in paras. 9 and 11 ceased to be operative on and from the date of commencement of the Hindu Succession Act and Indu Bala became entitled to enjoy full rights of absolute ownership over her half share in the suit property.

I respectfully agree with the decision of P.C. Mallick J. in Sasadhar Chandra Day and Others Vs. Sm. Tara Sundari Dasi and Others, with regard to the scope of Sub-sections (1) and (2) of Section 14 of the Hindu Succession Act. The learned Judge had correctly observed that when a Hindu female had title and all that a partition passed before the commencement of the Hindu Succession Act, the decree was to declare that title in the said properties and she could not be said to have acquired the property under the said decree in terms of Section 14(2). Therefore, a Hindu female would acquire absolute title in respect of properties allotted to her under a final decree passed prior to the Hindu Succession Act in a partition suit wherein she was declared to have a restricted interest in the property. The decision of R.S. Bachawat and C.N. Laik JJ. in Lalchand Bhur and Another Vs. Sm. Sushila Sundari Dassi and Others, also supported the view taken by me in the present case regarding the effect of the compromise decree. In the said case, in a suit by reversioners against a widow a consent decree was passed before the passing of the Hindu Succession Act, the terms of which embodied an undertaking by the widow not lo alienate or encumber or otherwise deal with the estate so as to prejudicially affect the reversionary interest. The Division Bench in Lalchand Bhur v. Sm. Sushila Sundari Dassi Supra held that after passing of the Hindu Succession Act, there was no longer in existence a limited Hindu widow''s estate in respect of the properties nor any reversionary interest in respect thereof. The widow concerned had become the full owner of those properties and the Terms of Settlement restricting her power of alienation no longer operated.

Mr. Ranjit Kumar Banerjee, appearing on behalf of the Appellant submitted before me that paras. 9 and 11 of the Terms of Settlement (Ex. 4) embodied a mutual arrangement made between Sambhu Charan and Indu Bala about the management and enjoyment of the items of joint properties mentioned therein. Mr. Banerjee further submitted that Section 14 of the Hindu Succession Act is not attracted when a Hindu widow as a part of family arrangement had voluntarily agreed to imposition of restrictions upon her power of alienation of her share of the joint immovable properties. A contract of this kind, according to Mr. Banerjee, being not repugnant to any of the provisions of Hindu Succession Act the Plaintiff was entitled to a decree for permanent injunction to restrain Indu Bala from alienating her share of the suit property in contravention of Clause (9) of the Terms of Settlement. In this connection, Mr. Banerjee relied upon the judgment delivered by Grover J. in Seth Badri Prasad Vs. Srimati Kanso Devi, . Grover J. observed that:

The Madras High Court was right in the observations made in Rangaswami Naicker Vs. Chinnammal and Another, , that Sub-section (2) made it clear that the object to Section 14 was only to remove the disability on women imposed by law and not to interfere with contracts, grants or decrees etc. by virtue of which a woman''s right was restricted. In Sukhram and Another Vs. Gauri Shankar and Another, , one Kishan Devi had acquired in 1952 the same interest in the property of the joint family which her husband Hukum Singh had under the provisions of Act XVIII of 1937. The question arose, whether after the coming into force of the Act she got rights of full ownership and could alienate the properties in which she had acquired a limited interest without the consent of the male members of the family. this Court decided that she had become full owner by virtue of the provisions of Section 14(1) of the Act.

The Plaintiff-Appellant brought the suit out of which this Second Appeal arises solely on the basis that Indu Bala had acquired a life estate under the Terms of Settlement (Ex. 4) and therefore, Sub-section (2) and not Sub-section (1) of Section 14 applied. It is well-settled now that Sub-section (2) of Section 14 which is in the nature of a proviso or exception to Sub-section (1) of Section 14 comes into operation only if acquisition of interest by Hindu female in any of the modes indicated therein was made for the first time without there being any pre-existing right in the female Hindu who was in possession of the said property. See Sukhram and Another Vs. Gauri Shankar and Another, and Badri Pershad v. Smt. Kanso Devi Supra. The decision of the Madras High Court in Rangaswami Naicker v. Chinnammal AIR 1974 Mad. 387 really goes against the contention of Mr. Ranjit Kumar Banerjee, learned Advocate for the Appellant. In the said case a lady had become entitled to the half share in the joint family properties by virtue of the provisions of Hindu Women''s Right to Property Act, 1937. A suit brought by her terminated in a compromise recording an arrangement by which she was declared entitled to half share of the properties of her husband. Clause (ix) of the said arrangement stipulated ''that the Defendant shall be entitled to the suit properties after the Plaintiff''s life time''. The widow in question possessed the properties at the date of the commencement of the Hindu Succession Act, 1956. Thereafter, she died in March 1957 leaving a will disposing of the properties in favour of her daughter. Section Ramchandra Iyer J. in Rangaswami Naicker v. Chinnammal AIR 1974 Mad. 387 held that under the aforesaid compromise the lady did not acquire any new title but the said compromise had declared pre-existing right under the law and Clause (ix) of the same will have to be regarded as invalid as both a Hindu widow''s estate and the vested reminder cannot coexist. The learned Judge further held that a compromise decree did not serve as a fresh source of her title or as a family arrangement of doubtful claims. No restriction was imposed on the enjoyment by the lady concerned except what was inherited in the nature of the estate as a part of the law. In other words, there was no restriction imposed by virtue of any term in the compromise or grant. The learned Judge at page 333 approved the view of P.C. Mallick J. in Sasadhar Chandra Dey v. Sm. Tara Sundari Dasi Supra, regarding the scope of Section 14(2) of the Hindu Succession Act.

In my view, the Terms of Settlement (Ex. 4) between Sambhu Charan and Indu Bala did not serve as a fresh source of Indu Bala''s title and when her title in the half share was admitted, there is no question of settlement of doubtful claims. I have already observed that Clauses 9 and 11 really amounted to recognition of the limited nature of estate inherited by Indu Bala from her late husband Bhagabati Charan. The said terms, in my view, should be construed in the same manner in which Bachawat and Laik JJ. in Lalchand Bhur v. Sm. Sushila Sundari Dassi Supra had interpreted the compromise decree involved in the case before them. Mr. Bankim Chandra Banerjee, appearing on behalf of the Respondent No. 1, drew my attention to the decision of Deshmukh J. in Jagannathpuri Guru Kamaleshwarpuri Vs. Godabai and Another, . The learned Judge in the said case interpreted a clause in a partition deed dated April 13, 1950, entered into by two widows and an adopted son. Deshmukh J. relying upon the decision of P.C. Mallick J. in Sasadhar Chandra Dey v. Sm. Tara Sundari Dassi Supra and the decision of Bachawat and Laik JJ. in Lalchand Bhur v. Sm. Sushila Sundari Dassi Supra held that the case before him was governed by Sub-section (1) and not Sub-section (2) of Section 14. Therefore, the Plaintiff widow had obtained full title to the properties.

In the instant case, the restrictions imposed by paras. 9 and 11 were concomitant of the widow''s estate held by Indu Bala at the date of the compromise. When by operation of law she became the full owner, necessarily these restrictions ceased to exist because the same were repugnant to the absolute ownership concerned upon her by Section 14(1). The whole foundation of the Terms of Settlement (Ex. 4) was that Indu Bala was the holder of a limited estate in respect of herself share. After the commencement of the Hindu Succession Act the clauses restricting her right of alienation stood overridden.

In the above view the suit brought by the Plaintiff Appellant was rightly dismissed.

I accordingly dismiss the Second Appeal without any order as to costs.