Smt. Sharbati Devi vs Pt. Hiralal and Another

A.N. Grover, J.—In order to appreciate the point which is to fie decided in this appeal it is necessary to state the facts shortly. One Din Dayal, who was a lawyer, had two wives, Smt. Mathri and Smt. Basantl. From Smt. Mathri he had a son, Bhikan Lal, who died in 191/leaving a widow Mst. Sharbati Devi who is Defendant No. 1 in the suit out of which this appeal has arisen. Smt. Basanti was the other wife of Din Dayal from whom he had a son, Hira Lal, who is the Plaintiff. Din Dayal died in the year 1938 and on 31st December 1938 his properties were mutated half and half in favour of Mst. Sharbati Devi and Hira Lal who was minor at that time Mst. Sharbati Devi remained in possession of the properties which had been mutated in her favour.

In the year 1950 a suit was filed by Hira Lal against Mst. Sharbati Devi in which a compromise took place on the basis of which a consent decree was passed on 9th May 1951 declaring that Hira Lal was the sole heir and owner of the property left by Din Dayal but she was given possession of the suit land and certain other lands for. lite her rights being restricted with regard to attenation etc.

On 14th September 1956 she sold 4 Kanals and 3 martas of land to Khem Ram Defendant No. 2 for a sum or Rs. 200/-. This led to the institution of a suit by Hira Lal for possession of the land sold and in the alternative for a declaration that the sale by Defendant No. 1 in favour of Defendant No. 2 was void and ineffective as against the Plaintiff''s rights. The suit was contested by Mst. Sharbati Devi and on pleadings of the parties as many as six issues were raised. The only material issue, however, is No. 1 which is-

Whether Defendant No. 1 became full owner of the suit property by coming into force of Act No. 30 of 1956"? The trial court while decreeing the suit made an obvi-ous mistake by passing a decree for possession of 16 bighas and 1 biswa whereas the claim was only in respect of 4 kanais and 3 marlas of land which had been alienated. The learned Senior Suborcinate Judge attirmed the decree of the trial Court. It appears that before him the mistake with regard to the area of the land in dispute was not pointed out. The present appeal has been tiled only by Mst. Sharbati Devi and the sole point on which learned Counsel have addressed arguments relates to the applicability of Section 14(1) of the Hindu Succession Act, 1956 hereinafter to be referred to as the Act) by virtue of which the suit land would be held by Mst. Snarbati Devi as full owner which she would be fully entitled to alienate.

The position taken up by the Plaintiff, however, is that Sub-section (2) of Section 14 governs the present case as the property in dispute was acquired by Mst. Sharbati Devi under the consent decree dated 9th May 1951 and, therefore, she was not entitled to alienate the property in any manner as provided in the compromise on which the decree was based.

Mr. Shamair Chand, who appears for the Defendant-Appellant, contends that the property in dispute had been acquired before the commencement of the Act after the death of Din Dayal by the Appellant in lieu of maintenance and, therefore, it was held by her as full owner by virtue of Section 14(1) at the time when she alienared it in favour of Khem Ram. It is pointed out that if the female Hindu has already acquired property in that manner, then Sub-section (2) of Section 14 will have no application because according to the express language employed therein it can govern only such cases where property has been acquired by way of gift or under a will or any other instrument or under a decree or order of a Civil Court, etc. According to Mr. Shamair Ghana, this means that Sub-section (2) can come into operation only it acquisition in any of the methods indicated therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of the property. My attention has been invited to a decision or Gurudev Singh J. In Dhanna Singh v. Smt Autar kaur Second Appeal No. 292 of 1961 (Punj) against which Utters Patent Appeal No. 310 of 1962 was dismissed in which after referring to Section 14(2) it has been observed is follows:

It is clear that this provision would apply only to that property which is ''acquired'' by way of gift under a will or any other Instrument or under a decree, etc., and not to, the property to which a female Hindu may have succeeded on the death of the last male holder, in the case with which we are dealing Gurdas Singh died issueless on 22nd of January, 1956, and his property Immediately vested in his widow Mst. Avtar Kaur, though as a limited owner. She also took possession of the same and the lands were mutated in her favour. The agreement (Exnibit P. 3) which was arrived at about six months later, merely (sic) her right to hold the estate of her husband as limited owner as at that time under the law she was entitled only to a limited estate. No serape was conferred on her by virtue of this agreement nor did she thereby acquire any estate. All that this document stated was that smt. Avtar Kaur was to hold her husband''s property, of which he was already in possession, as a limited owner and would also be responsible for the payment of her husband''s debts.

In Sasadhar Chandra Day v. Smt. Tara Sundari Dasi All 1962 Cal 438, P.C. Mallick J, was of the view that the language used in Sub-section (2) of Section 14 indicates that the word ''acquired'' will have a restricted meaning. It was not intended to have a meaning wider than its ordinary meaning. A property is said to be acquired when prior to the acquisition the person acquiring it hadno interest in the property.

To my mind, the language of Section 14 is quire clear and leaves no room for doubt that if any property is possessed by a female Hindu which will include immovable property acquired in lieu of maintenance, then she would become the full owner thereof by virtue of Sub-section (1) Sub-section (2) in that event cannot come into operation. It will apply only if for the first time a female Hindu acquires it in any of the ways mentioned in that sub-section i.e. by a gift or under a will or under a decree. It will, therefore depend on the facts of each case as to whether any property had already been acquired under Sub-section (1). If the answer be in the affirmative, then Sub-section (2) cannot apply. If it is in the negative, Sub-section (2) will become applicable provided the property is acquired in any of the several ways mentioned therein.

Mr. Ganga Parshad who appears for the Respondents has relied on Jaria Devi Vs. Shyam Sundar Agarwalla and Others, and Mt. Sampato Kuer and Another Vs. Dulhin Mukha Debi and Others, but these cases are wholly distinguishable on the facts. In the Calcutta case it has been (sic) down that where the widow has been allotted properties not strictly according to her share under a deed, which is described as a deed of partition, but which, in realty, is a deed of family arrangement, expressly stipulating that the widow will have no more than a life interest, the case would fall within the exception to Section 14(2) and not within the general rule enacted in Section 14(1) of the Act and her interest will not be transformed into an absolute interest. In that case the title of the widow to the acquire property was founded on the deed and not on any admitted share of inheritance. It was for that reason that the learned Judges ruled out the applicability of Sub-section (1) and found that the case fell within the exception (sic) in Sub-section (2).

In the Patna case a widow on coming into possession or her husband''s properties, gifted away in the year 1947 at of them to her daughters, who in return executed a deed of maintenance in favour of their mother to the effect than she would be in possession of those properties during her lifetime and have the right to enjoy their usufruct in in the of maintenance without any right of alienation, It was hello that the widow''s Interest was only a restricted estate and the case was governed by Sub-section (2) and not by Sub-section (1) of Section 14 of the Hindu Marriage Act. The real reason why that conclusion was reached was that the widow had obtained possession of the properties on account of the deed executed by the daughters and the question, therefore, that will have to be resolved in cases of this kind is whether the possession of the female Hindu at the time the Act came into force was attributable or was pursuant to any instrument or decree etc. or whether she was already in possession by virtue of her right either as an heir or in lieu of maintenance which was later on recognised or given effect to in the decree etc.

In the present case it is contended by Mr. Shamair Chand that right from 1938 onwards the Appellant was in possession in lieu of maintenance as admittedly she being a widow, of the predeceased son she was not en-titled to anything-beyond maintenance. But maintenance could be paid to her either from the estate or she could be put in possession of a part of the estate in lieu of maintenance and this is what was exactly done when the mutation was effected in her favour on 31st December 1938. The lower appellate Court appears to have treated the Appellant as if she was a trespasser and that whatever rights she obtained to get into possession of the suit property, were conferred upon her by the consent decree in the year 1951. This apparently is an error and it cannot possibly be field that she was in possession before the consent decree of 1951 as a trespasser, indeed, her possession was perfectly lawful and must be deemed to have been lawful in view of what has been laid down in Hardit Singh v. Gurmukh singh 64 Pun Re. 1918 : AIR 1918 PC 1, and Mt. Channi Bibi v. Ahmad Khan AIR 1924 Lah 265.

It is admitted that by means of the compromise on which the consent decree was passed in 1951 she did not get any larger interest or was not put in possession of more properties or share in the properties than what was in her possession already by virtue of the mutation dated 31st December 1938 At any rate, it is quite clear that so far as the suit land is concerned, that was in possession of the Appellant since 1938 until it was alienated and by virtue of the consent decree also she was allowed to remain in possession or that very property though restrictions were imposed on her rights of alienation etc. In this view of the matter it cannot be said that it was by virtue of the decree that the Appellant came to be in possession of the suit property. Sub-section (2) of Section 14, therefore, would have no application, with the result that she was the full owner of the aforesaid property at the time when she said it to Defendant No. 2.

For all the reasons given above this appeal is allowed and the decree of the Courts below is set aside and the suit dismissed, but in the circumstances the parties will be left to bear their own costs throughout.