Verinder Parkash vs Smt. Manshan

V.P. Gupta, J.—One Sunder Brahmin was the owner of the disputed land along with certain other land. He gifted the whole of his property to his daughter, Smt. Manshan, and his son-in-law, Parman, husband of Smt. Manshan, by a registered gift deed dated 23rd June, 1920. It was stipulated in the gift deed that Smt. Manshan and Parman were rendering services to Sunder (the donor) and his wife Smt. Kirpi, and were providing them all the necessities of life. The gift was executed for past as well as future services, and it was mentioned that in case the donees failed to render services to the donor or his wife, Smt. Kirpi, then the donor would have the right to revoke the gift but in that case the donor would compensate Parman donee for the services. Due to this gift the property of Sunder was mutated in the name of Smt. Manshan and Parman in ''equal shares. At the time of the gift, Sunder had no male issue and had only two daughters, i.e. Smt. Manshan and Smt. Sita. After the gift he begot a male issue. On the birth of a son, Parman donee (the husband of Smt. Manshan re-transferred his one-half share of the land in favour of Sunder (the donor) in 1925. This one-half share of land, which was retransferred by Parman to Sunder, was subsequently gifted to Smt. Sita Devi. This gift was challenged by Smt. Manshan but the same was upheld, as is evident from copy of the judgment of the District Judge (Exhibit P.7) dated 21st June, 1948.

Sunder died on 17th September, 1941, and after the death of Sunder, Smt. Kirpi filed a suit in the year 1944 (Suit No. 1039 of 1944) for possession of the property which was left with Smt. Manshan on account of the gift of 23rd June, 1920. This suit was contested by Smt. Manshan, and finally a compromise was arrived at between the parties on 3rd August, 1945. A compromise decree for possession of 3/4th share of the property (in Suit No. 1039 of 1944) was passed in favour of Smt. Kirpi and for the remaining 1/4th of the property, the suit was dismissed. According to the terms of the compromise (Exhibit P.1.) and the decree sheet (Exhibit P.2.) the possession of this property was to be taken by Smt. Manshan after the death of Smt. Kirpi, and Smt. Kirpi had no right to mortgage or sell the 3/4th share of the property decreed in her favour. Due to this compromise decree, Smt. Kirpi became the owner of the property which is in dispute in the present suit.

The Hindu Succession Act, 1956 (hereinafter shortly called the Act) came into force on 17th June, 1956, and Smt. Kirpi was admittedly in possession of the disputed property on 17th June, 1956. She executed an adoption deed as well as a gift deed in favour of Verinder Parkash (the present Appellant) on 23rd August, 1958 (Exhibits D.1 and D.2). Verinder Parkash is the son of Smt. Sita Devi, the real sister of Smt. Manshan. After the adoption deed and the gift deed, dated 23rd August, 1958, Smt. Manshan filed this suit in the court of Sub Judge, Kangra, on 27th May, 1959, and alleged that Smt. Kirpi had no right to transfer the property by way of gift in favour of Verinder Parkash and that the said gift was ineffective upon her rights after the death of Smt. Kirpi. It was also alleged that Verinder Parkash was not a validly adopted son of Smt. Kirpi. The suit was contested by Smt. Kirpi and Verinder Parkash. The Sub Judge, Kangra, vide his order dated 14th August, 1959, framed the following issues:

(1) Has the plff. locus standi to sue?

(Onus objected to)

(2) Was deft. No. 2 validly adopted by deft. No. 1?

If so, was she competent to do so?

(3) Is the gift in question binding, on the plff.?

(4) What is the effect of Hindu Succession Act on the rights of deft. No. 1?

(5) Relief.

The Sub Judge, Kangra, decreed the suit of the Plaintiff, vide his judgment and decree, dated 16th January, 1960. An appeal was filed by the Defendants but the same was also dismissed on 29th April, 1960. The Defendants filed a regular second appeal No. 232 of 1967 challenging the judgments and decrees of the two courts below, but vide judgment and decree, dated 26th May, 1970, this regular second appeal was also dismissed, and it is in these circumstances that this present letters patent appeal is before us.

We have heard Shri K.D. Sood, Advocate, for the Appellant and Shri Chbabil Dass, Advocate, for the Respondent.

The learned Counsel for the Appellant contended that Smt. Kirpi had a right of maintenance in the property of Sunder and for that reason she had a pre-existing right in the disputed property at the time of the compromise (Exhibit P. 1) and the compromise decree (Exhibit P. 2) only confirmed her pre-existing right. On these contentions the learned Counsel for the Appellant argued that the provisions of Section 14(2) of the Act have no applicability and Smt. Kirpi became an absolute owner of the pro perty on 17th June, 1956, by virtue of Section 14(1) of the Act. Reliance was placed upon Vaddeboiyna Tulasamma and Ors. v. Vaddeboyina Sesha Reddi (dead) by L.Rs. (AIR 1977 S.C. 1944) and Han Dutt v. Shiv Ram I.L.R 1978. (HS) 293 . It was next contended that even under a compromise decree, Kirpi was at liberty to gift away the property because the only restriction placed upon her rights was with respect to the sale and mortgage and, therefore, the gift by Smt. Kirpi in favour of Verinder Parkash (the present Appellant) was valid and could not be challenged by Smt. Manshan. In support of this contention reliance was placed upon Blanda and Others Vs. Duni Chand Khazana, .

The learned Counsel for the Respondent contended that Smt. Kirpi had no pre-existing right in the disputed porperty and that the same was given to her under the compromise decree and, therefore, Section 14(2) of that Act is applicable in the present case. It was also con tended that on the death of Smt. Kirpi, the Plaintiff was to get possession of the property and the restrictions put upon the rights of Smt. Kirpi were for all types of alienations and the same could not be construed to cover the alienation by way of mortgage and sale only.

We have considered the contentions of the learned Counsel for the parties and have also gone through the records of the case.

The main controversy is with regard to the applicability of Section 14 of the Act, which roads as follows:

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.

There is no dispute that under the latest law, as has been pronounced by their Lord ships of the Supreme Court, if a female is given some property by way of compromise or settlement under a decree and if she has any pre-existing rights in such property, then the said property will not come within the purview of Section 14(2) of the Act and the female Hindu will become the absolute owner of such property. Section 14(2) of the Act is an exception and a person who wants to claim benefit of Section 14(2) has to prove that the property in pos session of the Hindu female has come to her in any of the modes as have been mentioned in Section 14(2).

In the present case the original gift of 23rd June, 1920, was made by Sunder. Smt. Kirpi had no right to control the power of alienation of Sunder and the gift by Sunder could not be challenged by Smt. Kirpi. If Smt. Kirpi had any right of maintenance as a wife then she could claim maintenance from Sunder. Smt. Kirpi had no right to claim any charge on the property which had been validly transferred by Sunder in favour of third persons, may be his own daughter, and, therefore, naturally Smt. Kirpi could not claim any charge on the disputed property of which Sunder was no longer the owner. In the year 1944, when Smt. Kirpi filed a suit for possession of the property (which had been gifted by Sunder to Smt. Manshan), she claimed this relief because she was not maintained or served by Smt. Manshan. In other words, Smt. Kirpi sought the relief of revocation of gift which had been made by Sunder in favour of Smt. Manshan. It is note-worthy that according to the terms of the gift deed of 1920, Smt. Kirpi had not been given any right to revoke the gift and this right of revocation was reserved to Sunder (the donor) alone. More over, only the donor has a right to revoke a gift, and Smt. Kirpi was never a donor. Smt. Kirpi became a widow in 1941 after the death of Sunder. The disputed property was not the owner ship of Sunder at the time of his death and, therefore, it cannot be said that Smt. Kirpi had any right of maintenance out of the disputed property. Smt. Kirpi could not claim any charge on this property for her maintenance. In view of the fact that Smt. Kirpi had no right to claim maintenance out of the disputed property or had no right to have a charge created upon the disputed property, Smt. Kirpi cannot be said to possess any pre-existing rights in the disputed property. She was the mother of the donee (Smt. Manshan) and it appears that a family settlement was arrived at between the mother and the daughter by which the daughter (Smt. Manshan) agreed to give possession of the disputed property to Smt. Kirpi during her life time with a clear stipulation that the property would revert to Smt. Manshan on the death of Smt. Kirpi. The contention of the Appellant''s Counsel that the property was given to Smt. Kirpi in lieu of her right of maintenance or that she had any pre existing right in this property cannot be accepted in the facts and circumstances of this case.

In Vaddeboyina Tulsamma and Ors. v. Vaddeboyina Sesha Reddi (dead) by L.Rs. (supra) the facts were that Venkatasubba Reddy, husband of Tulasamma, died in the year 1931 in a state of jointness with the step-brother, V. Sesha Reddy. Tulsamma claimed maintenance and an ex-parte decree was passed against V. Sesha Reddy on 29th June, 1946. An application for recording a compromise was filed by V. Sesha Reddy claiming that a compromise has been arrived at on 9th April, 1945, but this application was dismissed on 16th October, 1946. Appeal against this order was also dismissed with the result that Tulsamma filed execution proceedings. During execution proceedings, a settlement was arrived at, which was recorded by the Court and under the compromise Tulsamma was allotted properties which she was to enjoy with limited interest having no power of alienation at all and these properties were to revert to the Plaintiff after the death of Tulsamma. Tulsamma remained in possession of the property in this manner and was in possession even at the time of the enforcement of the Act. Tulsamma leased out some property and also sold some of it in 1960-61. A suit was filed by the Plaintiff, V. Sesha Reddy, claiming that the alienations by Tulsamma were not binding upon him as she had no power of alienation and was having a restricted estate in the property and that the provisions of Section 14(2) of the Act were applicable. This suit was contested and in the light of the facts of this case, the Hon''ble Judges of the Supreme Court held that the case was governed under the provisions of Section 14(1) of the Act. In this judgment it was held by the Hon''ble Judges that Smt. Tulsamma had a pre-existing right in the property and by the compromise her pro-existing right was confirmed. In para 4 of The judgment, it has been held that "the legislative intendment was that Sub-section (2) should be applicable only to cases where acquisition of property is made by a Hindu female for the first time without any pro-existing right a kind of acquisition akin to one under gift or will. 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 pro-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 prescribes a restricted estate in tub property".

In the present case, it is clear from the facts that Smt. Kirpi had no right of maintenance in the disputed property at the time of the compromise, Exhibit P.1. She could also not claim any charge on this property. At the time of the compromise, Exhibit P.1., this property was the owner ship of Smt. Manshan only. Hence it cannot be said that Smt. Kirpi was having any pro-existing right in this property.

In Han Dutt''s case (supra), the aforesaid judgment of the Supreme Court in Vaddeboyina Tulsamma and others'' case was followed. The facts in Han Dutt''s case were also that one Surjan deserted his wife, Smt. Aurku. Shri Sardaru, the father of Surjan, gifted some property in favour of Smt. Aurku, and this gift was challenged by Surjan. A compromise was arrived at, and according to the terms of the compromise, Smt. Aurku was to hold the property for her life time. In these circumstances, it was held following the judgment in Vaddeboyina Tulsamma and others'' case (supra) that Aurku had a right of maintenance in the property of her father-in-law and this right of maintenance was only confirmed by the compromise. It was hold that Smt. Aurku had a pre-existing right of maintenance in this property and, therefore, the provisions of Section 14(2) of the Act are inapplicable.

In view of the facts of the two judgments cited above, they are quite distinguishable from the facts of the case in hand, and hence, they are of no help to the Appellant''s Counsel. We are of the view that the property in dispute was given to Smt. Kirpi under the terms of the decree only and the case is covered u/s 14(2) of the Act.

The other contention of the learned Counsel for the Appellant also cannot be accepted. In the compromise (copy of which is Exhibit P.1.), it is specifically mentioned that possession of 3/4th of the property is being given to Smt. Kirpi, but the same shall come back to Smt. Manshan after the death of Smt. Kirpi, meaning thereby that at the time of the settlement of the compromise the parties were aware of their rights and it was specifically agreed that the property must revert back to Smt. Manshan, who was, in fact, giving this property to Smt. Kirpi for her life time. The restrictions upon the rights of Smt. Kirpi not to sell or mortgage the property also impliedly mean that the rights of alienation of Smt. Kirpi were restricted. If Smt. Kirpi had no right to mortgage or sell, then naturally she could not be given the right to transfer the property by a gift. Under the customary law or the Hindu law, as was prevalent in 1944-45, a Hindu widow could alienate the property by sale or mortgage in case of necessity but she had no right to gift the property without cause. If restrictions for sale or mortgage had been placed then it can easily be inferred that Smt. Kirpi had no right to transfer the property even if there was a bonafide necessity for doing so. The transfer by gift is a gratuitous transfer and by no imagination it can be thought that Smt. Manshan could agree for such a transfer. The language of Exhibit P.1, if read as a whole, clearly proves that Smt. Kirpi was given a restricted estate without giving her any powers of alienation in the property. It may be mentioned that the Clause restricting the powers by sale and mortgage has been added after the Clause that the property will revert to Smt. Manshan after the death of Smt. Kirpi. The first Clause becomes operative and the property is to vest with Smt. Manshan after the death of Smt. Kirpi. The judgment in the case, Blanda and Ors. (supra) is distinguishable, and has no application. In the instant case, there is a written com promise, the terms of which can be interpreted easily after looking into the intention of the parties.

No other point was urged before us.

As a result of the above discussion, the present appeal is dismissed, but as legal points were involved in the case, therefore, we leave the parties to bear their own costs throughout.