Suresh Govind Mandavgane vs Raghunath Moreshwar Pendase and Others

Sawant, J.—The question which has been referred to us by the learned single Judge is whether the property which was given to the widow in fieu of her maintenance under the Will dt. Nov. 27, 1947 executed by her husband. Had become of her full ownership under s. 14(1) of the Hindu Succession Act , 1956 (hereinafter referred to as the Act ).

The facts necessary to appreciate the question of law are as under:

One Dadaji died leaving certain properties. He had two sons Govinda and Vinayak. Vinayak''s son was one Shridhar, Govinda has to sons and a Daugher. Defendants 1 and 2 are the sons and defendant 3 is the daughter. Vinayak died while he was joint with Govinda. Thereafter there was a partition between Govinda, his sons and his partition between Govinda, his sons and his nephew Shridhar and in that partition the suit property which consisted of a house and some agricultural lands came to the share of Shridhar. Shridhar died on Oct. 20, 1948 leaving his widow Ramabai. Before his death, Shridhar has executed a will on Nov. 27, 1947. Under the Will, he had bequeathed the entire property to his entire property to his widow Ramabai. Under the terms of the will she was to enjoy the property for her life only. The Will further directed that after her death the property was to go to plaintiff who was Shridhar''s disciple and manasputra.

Ramabai died on Jan. 15, 1971 while she was in possession of the suit property. Before her death, she made a Will on Mar, 27, 1970, and bequeathed the suit property to defendant 2 who as stated above, is one of the sons of Govinda.

The plaintiff filed the present suit against the defendants claiming possession of the property under the Will of Nov. 27, 1947 executed in his favour by Shridhar and disputing not only the Will made by Ramabai in 1970 in favour of defendant 2 but also her right to will away the property since, she had not become full owner of the property, under S. 14(1) of the Act , the Trial Court held that both the Wills viz., the will made by Shridhar in favour of the plaintiff as well as the Will made by Ramabai in favour of defendant 2 were valid. However, the Court came to the conclusion relying upon a decision of the Supreme Court reported in Mst. Karmi Vs. Amru and Others, , that Ramabai had not become a full owner of the property under S. 14(1) of the Act because she has acquired the property under the Will only as a limited owner. In the circumstances the said acquisition was excepted by sub-sec. (2) from the provisions of sub-sec. (I) of S. 14 of the Act . The Court therefore, decreed the suit. The appeal filed by defendant 2 against the said decision, was dismissed by the District Court confirming the findings of the trial Court by its decision of May 2, 1980. Defendant 2 has filed the present Second Appeal against the said decision.

In view of the finding of fact that both the wills viz., that of shridhar in favour of plaintiff and of Ramabai in favour of defendant 2 are valid, the question whether it is the plaintiff or defendant 2 who will be entitled to the suit property would depend upon the answer to the question which has been referred to us by the learned single Judge viz., whether the property which was admittedly in possession of Ramabai in lieu of her right of maintenance had become of her ful ownership under S. 14(1) of the Act or not.

There is no doubt that there are at least two decision of the Supreme Court reported in Mst. Karmi Vs. Amru and Others, and Smt. Naraini Devi Vs. Smt. Ramo Devi and Others, in favour of the plaintiff''s contention that since the property was given to Ramabai by her husband under his Will specifically restricting her right to enjoy the property during her lifetime, it is covered by the provisions of sub-sec. (2) of the said S. 14 and the provisions of sub-sec. (I) thereof do not apply to it. However, there have been at least three decisions of the Supreme Court thereafter viz., those reproted in AIR 1977 SC 1944 Bai Vajia (Dead) by Lrs. Vs. Thakorbhai Chelabhai and Others, , Bai Vajia v. Thakorbhai Chelabhai and Gulwant Kaur and Another Vs. Mohinder Singh and Others, . Smit. Gulwant Kaur v. Mohinder Singh which have taken a contrary view,. What is more, in all the later three decisions reference has been made to the earlier decision of the court reported in Smt. Naraini Devi Vs. Smt. Ramo Devi and Others, . Naraini Devi''s case and it has been expressly overruled. It is true that there is no reference in these decisions to the decision of the Court reported in Mst. Karmi Vs. Amru and Others, , and that was the strongest contention advanced on behalf of the plaintiff before us. However, in view of the exhaustive discussion by the Court on the point in the later three decisions, and the express overruling of its decisions in Smt. Naraini Devi Vs. Smt. Ramo Devi and Others, . Naraini Devi''s case, it will have to be held that that decision has also been in terms overruled. To appreciate it, we may briefly discuss the facts and law which fell for consideration before the court In those cases.

Before we do so, it is necessary to quote the provisions of S. 14 of the Act Section 14 reads as follows.

"14. Property of a female Hindu to be her absolute property.- (I) 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 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 (I) 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 language of s. 14 is clear. Sub-sec, (I0 read with the Explanation in terms states that any property of whatsoever type possessed by any female Hindu and acquired in any manner whatsoever whether before or after the commencement of the Act shall become of her full ownership and will no longer continue to be held by her only as a limited owner. The Explanation, further, is inclusive,. Hence, the property acquired by the female is not confined to the inherited, devised, gifted or partitioned property or as a substitute for maintenance. What is further necessary to note from the provisions of sub-sec. (I) Is that it also includes the property acquired by the female "in lieu of maintenance or arrears of maintenance" and this expression sued in the explanation has its own significance in the context of the right of a Hindu female to maintenance under the Hindu Law.

Sub-sec. (2) of s. 14 no doubt is an exception to sub-sec. (I) thereof and states in so many words that the property acquired by a Hindu female under any instrument which gives her only a restricted estate in such property will be governed by the terms of that instrument and will not be a property of her full ownership. On the face it, the provisions of sub-sec (2) therefore suggest that the property which comes to a female as a restricted property under an instrument, cannot become the property of her full ownership. This is because the source from which she derives the property or the instrument by virtue of which she gets the property itself confers on her a restricted estate in that property. It is, therefore, apparent that the Legislature had in mind two sets of limited properties one which is covered by sub-sec. (I) and the other which is excepted by sub-sec. (2), Obviously, the two sub-sections are not meant to cover or operate on, the same kind of property. It is, therefore, necessary to harmonies the two provisions particularly with reference to their bearing on the property which comes in the possession of the female in lieu of or for the purpose of her maintenance. The harmonization can be effected only if it is held that whereas the property contemplated by Sub-sec. (I) is the property which vests in the female in recognition of her pre-existing right viz., right independent of the instrument which creates, it, the property contemplated by sub-sec. (2) owes its origin to the instrument in question and the female ahs not right to it independently of the instrument. If this were not so, an unjust and inequitable result will follow. In cases where a Hindu female is in possession of property for her maintenance without the same having been given under an instrument will become full owner thereof whereas a Hindu female who is so in possession of property under an instrument will take it only for her life. Although both have the right to maintenance under the Hindu Law. Hence, the correct reading of the provisions of s. 14 is to hold that the provisions of its sub-sec. (I0 apply to cases where the female is in possession of the property in recognition of her pre-existing right or a right independent of any instrument, and sub-sec. (2) refers to the property acquired by the female for the first time under an instrument. We find that this is exactly the view which has been taken by the authorities which are binding on us.

8.In order to application the above said proposition further, it is necessary to remember that Hindu females viz.., windows, unmarried daughters have a right to maintenance from out of the joint family property as well as the property of their husband or father, as the case may be. This right has existed all along . In fact, the property which is liable to maintenance of a Hindu female can be alienated only after satisfying the said right or subject to it, expect of course the bona fide purchaser without the knowledge of such right. This right of the Hindu female was enlarged to a certain extent by the Hindu Women''s Right to Property Act , 1937. Amongst other things, the Act provided that it if a Hindu governed by the Dayabhaaga School. Died intestate leaving any property and if a Hindu governed by any other school died intestate leaving his separate property, , his window will be entitled to the same share as a son. However , if a Hindu governed by a School other than the Dayabhaga died leaving an interest in the joint family property, his window would get in the property the same interest as he himself had, Further although this Act , recognized only a limited interest of the female in such property, it gave her for the first time a right to claim partition as male member. The Act no doubt applied to Hindus dying intestate after the commencement of the Act and not earlier. However. Even this Act while it qualified the share of the Hindu window in the joint family property as well as the property of her husband and gave her a right to claim partition of the property, recognized her right to maintenance which was in existence prior to the said Act . What is therefore, necessary is to remember that even under the said Act . no new right of maintenance was conferred on the Hindu female. The Act quantified and provided teeth to the pre-existing right.

It is true that even under this Act unless a widow had in fact exercised her right to partition the property she could not claim any particular protein of the property as her own or excise her proprietary right in it. It is also true that even when she came in possession of a specific portion of the property after partition she had only a limited interest in it and could alienate it only if it was necessary to maintain herself, and not otherwise. In that sense, undoubtedly she had less than the property right in it. The fact however remains that the property in which she had a share whether it was partitioned or not always stood charged implicitly with her right to maintenance which was pre-existing.

This being the nature of a Hindu Woman''s right to maintenance, if had and has its existence independently of any instrument. If therefore matters not whether it is recognised by any instrument or not. The right cannot also be defeated by any instrument and if any instrument seeks to do it without her consent if will be invalid to that Hindu woman''s right to maintenance, we may now discuss the relevant decisions cited before us by both sides.

In Mst. Karmi Vs. Amru and Others, . the facts were that one Jaimal was the owner of the suit property and he died in 1938 leaving behind his Widoe Nihali. His son Ditta had predeceased him. The appellant was the daughter of Ditta. The respondents were collaterals of Jaimal. During the lifetime of Jaimal, he had executed two wills. By the second will be revoked the first will and directed that on his death his entire estate will devole on his widow Nihali during her lifetime,and the same would thereafter devolve on Bhagtu and Amru, his collaterals. On the death of Jaimal, the properties were mutated in the name of his widow Nihali who died somewhere in 1960 or 1961. On her death. Bhagtu and Amru claimed the properties on the basis of the will of Now. 13, 1937 but the basis of the will of Nov. 13, 1937 but the appellant, the deugther of Jaimal''s son Ditta claimed the properties of a sole legatee from Nihali under her will of April 25, 1958. The facts would appear to be similar to those in out present case. On these facts, the Supreme court held that the widow Nihali having succeeded to the property of her husband Jaimal on the strengh of the will of Nov. 13, 1937 which had given her only a life estate, she could not become an absolute owner under the provisions of the Hindu Succession Act . hence, the will executed by Nihali would not give the property to the appellant. This decision is undoubtedly infavour of the respondent. Unfortunately there in no discussion either of the provisions of s. 14 of the Act or any or the earlier decisions of the Court under the said provisions.

The next decision is reported in Smt. Naraini Devi Vs. Smt. Ramo Devi and Others, . The facts in this case were that under a registered award dt. Jan. 4, 1946,t he plaintiff Naraini Devi was given a life interest in the house in dispute. Naraini Devi who was the appellant in thatcase, contended that her limited interest in the house was enlarged into that of a full owner by the operation of sub-sec. (1) of S. 14 of the Act . as against that, the respondent maintained that her case fell under sub-sec. (2) of the said Section. The Court''s attention was drawn to its earlier decision viz., Seth Badri Prasad Vs. Srimati Kanso Devi, , which had taken the view that if the widow had the pre-existing right in the property then the case will fall under sub-sec. (I) and sub-sec. (2) will not be attracted. The court however, held that the ruling in that case was not applicable because in that case the widow had acquired a share in the property by virtue of the Hindu Women''s Rights to Property Act , 1937 on the death of her husband which took place after the coming into operation of that Act . since, in the case which fell before them the appellant''s husband had died in 1925, in the presence of her sons, she did not get any share or interest in the house left by her husband under the Hindu Law as then applicable. The court therefore, held that she had no pre-existing right or interest in the house in question, and it was the award of Jan. 4, 1946 that created restricted estate for her in the house in question. The court therefore, came to the conclusion that the appellant''s case fell squarely within the ambit of sub-sec. (2) of S. 14 and her interest came to an end on her death which took place during the pendency of the proceedings before the supreme Court. it may be mentioned here, with respect, that as has been held by the Supreme Court itself, this decision which proceeded on the footing that there was no "pre-existing right " in the Hindu woman for maintenance was not a correct exposition of the Hindu Law on the subject . it may further be mentioned that Justice Fazi Ali who was a party to this decision has in the subsequent decision reported in AIR 1977 SC 1944 Veddeboyina Tulasamma v. Vaddeboyina Sesha Reddi in terms held that this case was not correctly decided.

Along with two other learned Judges, Justice P.N. Bhagwati and Justice A.C. Gupta, the learned Judge in Tulsamma''s case has in terms held that sub-sec. (2) of S. 14 did not apply to cases where the Hindu female held the property in recognition of her pre existing right to maintenance although the right was incorporated in an instrument. In this case facts were that one Venkatasubba Reddy, husband of appellant 1 Tulasamma, died in the year 1931 while he was joint with his step brother V. Sesha Reddy leaving behind Tulasamma as his widow. On Oct. 11, 1944 Tulasamma filed a petition for maintenance against the respondent in the court of the District Judge, Munsif subsequently, this application was registered as a suit and an ex-parte decree was passed on June 29, 1946. On Oct, 1, 1946 the respondent Sesha Reddy filed an interlocutary application for recording a compromise alleged to have been arrived at between the parties out of Court on April9, 1945. The appellant Tulasamma opposed this application which was ultimately dismissed on Oct. 16, 1946. Appeal filed against the said dismissal also came to be dismissed. Thereafter Tulasamma started execution proceedings of the decree and in the execution proceedings the parties arrived at a settlement out of Court which was certified by the Court on July 30, 1949. Under the compromise, Tulasamma was allotted the suit property but it was stated therein that she was to enjoy only a limited interest therein with no power to alienate it. The properties were thereafter to revert to the plaintiff-respondent. Subsequently, Tulasamma continued to remain in possession even after the coming into force of the Act and by two registered deeds of April 12, 1960 and May 25, 1961, she alienated the properties leasing out some of the properties to defendants 2 and 3 by the first deed, and selling others to defendant 4 by the second deed. The plaintiff-respondent filed a suit on July 31, 1961 for a declaration that the alienation made by the widow Tulasamma were not binding on his and could remain valid only till the lifetime of the widow. It is on these facts that the Supreme Court expressly disapproved of its earlier decision reported In Smt. Naraini Devi Vs. Smt. Ramo Devi and Others, Naraini Devi''s case and held that since Tulasamma had a pre-existing right to maintenance and was in possession of the suit property on the date the said Act came into operation, she had become full owner of the property under s. 14(1) of the Act . The Court further held that the provisions of sub-sec. (2) of s. 14 did not apply to the said property and hence the Alienations made by her were valid. Whatever, therefore was the controversy arising out of the decisions of the Supreme Court reported in Mst. Karmi Vs. Amru and Others, and in Smt. Naraini Devi Vs. Smt. Ramo Devi and Others, , was set at rest by expressly overruling the second and by implicitly overruling the first.

In Bai Vajia (Dead) by Lrs. Vs. Thakorbhai Chelabhai and Others, i the facts were that in the year 1908 Renchhodji,son of Dahyabhai instituted Civil Suit against Bhimbhai son of Haribhai, Dayalji and Dahyabhai sons of Mohandhai, Motabhai and Gulabhai etc., for the partition of a joint family properties belonging to the parties. The suit resulted in a decree dt, Aug. 18, 1909 which provided inter alia that Dayalji and Dahyabhai would be full owners of survey No. 31 and 403 and also owners of a half share in Survey Nos. 591, 611, 288 and 659 /3,. There properties were burdened by the decree with the responsibility to pay yearly maintenance allowance of Rs. 42/- to Bai Vajia and the decree further provided that in the event of default in payment continuing for a period of a month after the due date. Bai Vajia would be entitled to take possession of that land which was burdened and would enjoy the income therefrom without however being competent to sell, mortgage, bequeath, otherwise transfer the same. The decree also declared that any aliencation made by Bai Vajia in contravention of the direction would be void. By clause 8 of the decree sons of Mohanbhai as well as Motabhai were also deprived of the right of alienation of their land during the lifetime of Bai Vajia. Default having been made in payment of maintenance, Bai Vajia took out execution and obtained possession of the land. Thereafter Dayalji and Delhyabhai deposited in Court the arrears of maintenance and filed an application with a prayer that the land of which possession had been given to Bai Vajia in execution of the decree be restored to them. The application was dismissed and thereafter Dayabhai instituted a suit for a declaration that the dismissal of his application was null and void and for recovery of the land. The suit was decreed but was dismissed in first appeal. Bai Vajia continued to enjoy the land till Oct. 21. 1963 when sh sold survey No. 31 in favour of one Dhirubhai Paragi Desai. The sale was challenged by a suit by the heirs of Mohanbhai and Motabhai, the defendants to the suit being Bai Vajia and Dhirubhai Paragji Desai. It was claimed by the plaintiff that Bai Vajia had no right to alienate in any manner the land obtained by her in execution as per the terms of the decree; that sub-sec. (I) of s. 14 had no application to her case and that her case was covered by sub-sec. (2). The suit was decreed by the trial Court. Bai Vajia''s appeal to the District Court was dismissed. While her second appeal was pending before the High court, she expired and her sole heir Chirubhai Dayalji Desai was brought on record. The single Judge of the High Court thereafter dismissed the second appeal on the ground that the decree passed in suit No. 403 of 1908 in which show as given the right to maintenance did not recognise any pre-existing right of Bai Vajia in the property in dispute. For coming to the said decision, the learned judge relied upon Naraini Devi''s case (supra). When the case came before the Supreme Court, the Court referring to the several decisions held that Bai Vijia had a pre-existing right to the maintenance and the property right to the maintenance and the property which had come to her was in lieu of the said right and it had become her absolute property in view of the provisions of sub-sec. (I) of s. 14 and sub-sec. (2) thereof had no application.

The same view has been reiterated by the Supreme Court in a very recent judgment on the subject reported in Gulwant Kaur and Another Vs. Mohinder Singh and Others, . The facts in that case were that Major General Gurbux Singh and his wife Gulwant Kaur were estranged and were living apart. Their son and daughter-in-law were living with gulwant Kaur and Gulwant Kaur was complaining that Major General Gurbux Singh was not providing her wirt adequatemaintenance. Therefore on July 29, 1958, Major General Gurbux Singh wrote her a letter under which he gave her the land in dispute in lieu of maintenance. The High Court sought to take -sec. (I) of S. 14 on the ground that it was given to her for her day to day expenses but not in lieu of maintenance. The Supreme Court rejecting the said distinction held that the land was given to Gulwant Kaur in lieu of maintenance and since it was given to her in exercise of her pre-existing right to maintenance it had become her absolute property within the meaning of sub-sec. (I) of s. 14. while coming to this conclusion, the court has referred to its earlier decisions on the point.

We may also point out that a Division Bench of this Court in First Appeal No. 708 of 1980 decided on June 11, 1987 to which one of us (sawant, J.) was a party, has taken the same view.

We have, therefore, no manner of doubt that in the present case Remabai had a pre-existing right to maintenance. That right existed independently of the will made by her husband Shridhar in her favour. The will merely recognised her said right. Even if it was not so recognised, it would have prevalied. Since the property was given to her in recognition of the said right and she was in possession of it when the Act came into force, she had become absolute owner of it. She had, therefore, the right to alienate it in any manner she liked.

The finding that both the Wills are valid and proper is a findings of facts and cannot be questioned in this Second Appeal. Hence, under Ramabai''s will, the appellant''s is entitled to the suit property. As Mr. Abhyankar pointed out even otherwise and independently of the will, the Appellant being the cousin brother of Ramabai''s husband Shridhar, he will be entitled to the said property under the provisions of S. 15(1)(b) read with S. 8 to Sch.11 of the Hindu Succession Act .

The appeal therefore succeeds. The decree passed by the lower Courts are set aside and the suit stands dismissed. In the circumstances of the case, there will be no order as to costs.

Appeal allowed.