JUDGMENT [ENTITY], J.
Page 1901
1. The appellant herein filed the suit in [CASE NUMBER] for declaration, possession and mesne profits in respect of the suit properties against the respondent-defendant and the said suit was dismissed by the trial court. The appeal preferred by the appellant in [CASE NUMBER] also met with the same fate at the hands of the lower appellate court and hence this second appeal by him.
2. The essential facts are to the effect that one [ENTITY], mother of the appellant as well as the defendant, was allotted certain properties including the suit schedule house under a partition that took place on 18.5.1966. In respect of the suit property which was given to the above said [ENTITY] under the registered partition deed, a condition was put to the effect that [ENTITY] shall have the right to sell the suit house for the purpose of performing the marriage of the children of [ENTITY], (the husband of [ENTITY]) [ENTITY] sold the suit property in favour of her son, the plaintiff, under a registered sale deed dated 22.4.1983. The plaintiff's case is that he put his brother, the defendant, in permissive possession of the suit house, but however, the defendant refused to vacate the suit premises and, therefore, the plaintiff was forced to file the suit as above praying for the relief of declaration, possession and mesne profits. The said suit of the appellant herein was contested by the defendant by taking up the stand that the suit property was given to [ENTITY] under the registered partition deed only for the purpose of performing the marriage of the children, who were not married at the time of partition and, therefore, as the children were married much before the sale deed was executed by Page 1902 [ENTITY] in favour of the plaintiff and as [ENTITY] had not spent any amount towards the marriage expenses, she had no saleable interest in the suit property and, therefore, the sale effected by her is invalid and, it was further contended by the defendant that he has been in possession of the suit property and has been in enjoyment of the same as owner uninterruptedly even prior to the sale deed i.e., 22.4.1983 and, therefore, the suit of the plaintiff was liable to be dismissed for the aforesaid reasons and also on the ground of limitation.
3. The learned trial judge framed as many as ten issues and after appreciating the evidence let in before him, he answered issue Nos. 4, 8 and additional issue No. 1 in the affirmative and all the other issues in the negative. The trial court, in the course of its judgment, came to the conclusion that [ENTITY] had no saleable interest in the suit property and, therefore, the question of the plaintiff acquiring title under the sale deed dated 22.4.1983 did not arise and this finding was also based on the reasoning that the appellant had failed to place evidence to show that [ENTITY] had sold the suit property to meet the marriage expenses of her children or for clearing any loan taken by her. As a result of the said reasoning, the suit of the plaintiff was dismissed. The lower appellate court concurred with the trial court's findings on all the issues and the appeal filed by the plaintiff was dismissed giving rise to this second appeal.
4. At the time of admission of this appeal, the following substantial questions of law were framed by this Court:
a) Admittedly the property in question was given to the possession of the appellant under the partition deed and even though she has been granted another property separately the suit properties were also given to her possession and as such Under [SECTION] of the [ACT] whether the suit property could be said to be the exclusive property of the appellant in view of the said [SECTION] of the Act and whether the court below was justified in holding that in view of the recital in the document, the property in question cannot be said to be the property granted exclusively to [ENTITY]?
b) Whether the courts below are right in holding that the suit filed by the plaintiff is barred by limitation under [SECTION] of the [ACT]?
5. I have heard the learned Counsel for the appellant Sri [ENTITY] and the learned Counsel for the respondents-L.Rs. Sri [ENTITY] and also carefully perused the entire material on record including the judgments of the courts below.
6. The learned Counsel for the appellant submitted that the facts concerning partition having taken place under a registered partition deed dated 18.5.1966 and the further fact that [ENTITY] sold the suit property in favour of the appellant herein under registered sale deed dated 22.4.1983 are not in dispute. But, it was contended by him that the courts below committed serious error in arriving at the Page 1903 conclusion that [ENTITY] had no saleable right to execute the sale deed as per Ex.P-2 in favour of the appellant herein and the said conclusion cannot be accepted as tenable in law because, the very fact that under the registered partition deed, [ENTITY] was given the suit property and further, she was also given the power to sell the suit property itself establishes that [ENTITY] had absolute right over the suit property and, as such, the view taken by both the courts below is not only incorrect but it goes against the very spirit of the partition deed Ex.P-1. It was also submitted that by virtue of [SECTION] of the [ACT], [ENTITY] had become the absolute owner of the suit property and, therefore, she had every right to sell the suit property in favour of the appellant herein and the conditions attached to the sale of the suit property by [ENTITY] will have to be ignored because, once the property vests in [ENTITY] under the partition deed, she becomes the absolute owner of it and takes it without any restrictions whatsoever being attached to the said property. As [ENTITY] had every right to get a share in the joint family property, what was given to her, therefore, will have to be treated as her absolute property and, as such, the conditions attached while vesting the suit property upon [ENTITY] will have to be ignored and, at the most, the said conditions can only be treated as a responsibility put on the shoulders of [ENTITY] and nothing more than that. It was then contended that the appellant had led evidence to show that [ENTITY] did incur the marriage expenses and this is also reflected in the recitals of the sale deed Ex.P-2 and, therefore, the question of [ENTITY] not having any saleable rights in the suit property does not arise even on this score.
7. As far as the ground of limitation is concerned, it was submitted that the courts below erred in applying [SECTION] of the [ACT] to the case on hand, but the proper Article which ought to have been applied is [SECTION] because, the respondent-defendant himself has taken up the stand in his written statement that he is claiming adverse possession of the suit property and even the trial court had framed an issue in this regard and the said issue has been answered in the negative. Therefore, the suit was filed within the period mentioned in [SECTION] of the [ACT]. As regards concurrent findings on facts of the courts below is concerned, it is submitted that as both the courts below have totally misread the partition deed Ex.P-1 and the sale deed Ex.P-2 and have wrongly come to the conclusion that [ENTITY] had no saleable right, the said question is a question of law requiring an answer and, as such, when the document is not properly interpreted by the courts below and the said document itself forms the foundation for the rights of the parties, in such an event, this Court has every power to interfere with the judgments of the courts below though they are based on concurrent findings of facts. In support of the above submissions, the learned Counsel placed reliance on the following decisions:
Page 1904
a) ILR 1992 Karnataka 1421
b) AIR 1963 Madras 133
c) AIR 1990 Bombay 98
d) [PRECEDENT] &
e) AIR 1966 Patna 199
8. On the other hand, learned Counsel Sri. [ENTITY] for the respondents contended that the suit property was given to [ENTITY] the mother of the appellant on the condition that she will have to perform the marriage of her children who had not been married at the time of partition and therefore, in view of the said condition put on [ENTITY] while she was given the suit property, it has to be construed that [ENTITY] had only restricted estate in the suit property and therefore, in the absence of evidence to show that [ENTITY] had incurred expenses towards the marriage of her children, she could not have derive any saleable interest in the suit property. In this regard, the evidence placed before the trial court clearly goes to indicate that the appellant herein has failed to establish the fact of [ENTITY] incurring marriage expenses or incurring any loan in order to perform the marriage of the children who had not been married and as such, the trial court has come to the definite conclusion that the appellant had failed to prove the important aspect of amount being spent by [ENTITY] for performing the marriage of her children. In this connection, learned Counsel took me through the entire evidence on record as well as the reasoning given by the trial court and submitted that no perversity of finding can be found in conclusion reached by the trial court and therefore, the finding on Issue No. 1 by the trial court does not call for any interference and consequently, [ENTITY] could not have sold the suit property to the appellant as per Ex.P-2.
9. Learned Counsel also referred to the contents of the partition deed Ex.P-1 to submit that in more than one place in the partition deed, it has been mentioned that apart from giving some property to her, [ENTITY] was also given the suit property, so that she could sell the suit property and spend the amount towards the marriage of her children. Since the evidence on record goes to show that all the children of [ENTITY] being found married even prior to the execution of the sale deed as per Ex.P-2 in favour of the appellant herein, the question of [ENTITY] incurring any expenses towards marriage of her children therefore, did not arise. It was therefore, submitted that the view taken by the trial court is in accordance with the evidence on record and the lower appellate court, has also concurred with the trial court on all aspects of the matter and thus, concurrent finding of Page 1905 facts cannot be interfered by this Court in this second appeal unless it is shown that the findings recorded on facts are totally perverse in nature. Even if the courts below had arrived at the conclusion erroneously on facts, yet, that is not a ground for this Court to interfere with the concurrent finding of facts merely because it is possible for this Court to take another view of the matter. Another submission made by the learned Counsel for the respondents is that as conditions were put on [ENTITY] for bringing the suit property to sale, it has to be construed that she was not given absolute power over the suit property and she had only limited interest in the suit property and as such, the case fell squarely under [SECTION] of the [ACT] and [SECTION] has no application.
10. It is also contended that it is not in the pleadings of the appellant before the trial court that [ENTITY] had become the absolute owner of the suit property and therefore, in the absence of any pleadings, it is not permissible for the appellant to now canvas before this Court that [ENTITY] has become the absolute owner of the suit property and that the case fell under [SECTION] of [ACT] for short).
11. So far as the ground of limitation is concerned, it is submitted that the view taken by the courts below that, [SECTION] of the [ACT] is applicable, is correct and as the appellant is seeking the relief of declaration of title, it is [SECTION] and not 65 that is applicable to the case on hand and as such, having regard to the date of the sale deed Ex.P-2 the suit filed on 30.4.1996 is therefore, barred by time. As regards the contents of Ex.P-2 sale deed is concerned, it is submitted that oral evidence is permissible to show that the recitals in the sale deed can be shown to be incorrect or wrong or for that matter that they were only nominal in nature. In support of the above submissions, learned Counsel for the respondents placed reliance on the following decisions:
a) (2004) 9 SCC 302
b) (1998) 6 SCC 314
c) AIR 2002 SC 2548
d) 2002 AIR SCW 718
e) 2006 AIR SCW 4790
f) ILR 1989 Karnataka 996
g) 1999 SCW 2240
h) 199 AIR SCW 3004
i) 2006 [CASE NUMBER] In the light of the principles laid down in the above cases, it was submitted that [ENTITY] had only restricted interest in the suit property, because of the conditions imposed upon her in the partition deed and therefore, as the appellant had failed to place convincing evidence to show that [ENTITY] had actually incurred expenses towards the marriage of her children or having taken loan in this connection, the view taken by the courts below does not call for interference and the appeal therefore, be dismissed.
12. Having regard to the submissions made as aforesaid and the contentions put forward by the learned Counsel for the parties and also after having gone through all the decisions cited by the learned Counsel for the parties, I proceed to answer the substantial question of law raised for consideration as under.
13. The first question to be answered is whether it can be said that the suit property was the exclusive property given to the mother of the appellant and that she became the absolute owner of the suit property by virtue of [SECTION] of the Act and if the said question is answered by holding that [ENTITY] had become the absolute owner of the suit property, then the sale deed executed by [ENTITY] in favour of the appellant will have to be upheld as valid in law, notwithstanding the conditions attached to the vesting of the suit property in favour of [ENTITY]. In that event, the entire evidence concerning [ENTITY] having not incurred any expenses towards marriage of her children becomes inconsequential. If on the other hand, the answer to the question falls under [SECTION] of the Act and in view of the evidence indicating that [ENTITY] had not spent any amount towards marriage of her children in favour of the respondents the sale by her will be invalid. With the above premise, I proceed to examine this aspect of the matter having regard to the provisions of law and the principals laid down by the Apex Court and other courts in this regard. [SECTION] of the Act reads as under:
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.
(2) Nothing contained in [SECTION] 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.
14. The above section came up for interpretation before the Supreme Court in the case of [PRECEDENT] and referred to the applicability of [SECTION], the Apex Court laid down the following proposition of law:
[SECTION] is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition Page 1907 in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property. Sub-section (2) is more in the nature of a proviso or exception to [SECTION] and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of woman in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in [SECTION]. It cannot be interpreted in a manner which would rob [SECTION] of its efficacy and deprive a Hindu female of the protection sought to be given to her by [SECTION].
Sub-section (2) must, therefore, be read in the context of [SECTION] so as to leave as large a scope for operation as possible to [SECTION] and so read, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribed a restricted estate in the property. 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 pre-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 the property.
15. It, therefore, becomes clear from the above interpretation given by the Apex Court that where a property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is by virtue of pre-existing right and such acquisition is not 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 the property.
16. The use of word 'possessed' in [SECTION] and the word 'acquired' used in [SECTION] also came to be explained by the Apex Court in another decision in the case of [PRECEDENT] which reads thus:
While determining whether a particular case is governed by [SECTION] or [SECTION], the section has to be read as a whole and it would depend on the facts of each case whether the same is covered by [SECTION] or (2). The word "possessed" in [SECTION] has been used in its widest connotation and it may be either actual or constructive or in any form recognised by law. In the context in which it has been used in [SECTION] it means the state of owning or having in one" hand or power.
The word "acquired" in [SECTION] has also to be given the widest possible meaning. This would be so because of the language of the explanation which makes [SECTION] applicable to acquisition of Page 1908 property in manners mentioned therein. Sub-section (2) is more in the nature of a proviso or an exception to [SECTION]. It comes into operation only if 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 property.
17. Therefore, it becomes clear from the above proposition of law laid down by the apex Court that [SECTION] comes into operation only if acquisition in any of the methods indicated therein is made for the first time without there being any pre-existing right in a female Hindu.
18. It is not the case of the parties that [ENTITY] acquired the right, to the suit property for the first time under Ex.P-1 since [SECTION] of the Act provides that any property possessed by the Hindu female whether acquired before or after the commencement of the Act, the property held by her as full owner and not as a limited owner. As both the parties do not dispute the fact of the suit property being given to [ENTITY] as her share in the partition, it becomes clear that [ENTITY] also had an interest in the property of the family and under the partition she was given the suit property along with another property. In other words, her share of the joint family property was given to her under the partition deed, which implies that [ENTITY] also had a pre-existing right in the property belonging to the joint family. A question was put to the learned Counsel for the parties as to whether [ENTITY] would have got her share in the property even in the absence of the partition deed Ex.P-1 coming into existence and both the counsel answered the said question in the affirmative. In other words, learned Counsel for the respondent submitted that only if there is a pre-existing right of maintenance, in such an event [ENTITY] would get her share in the property even if the partition deed were not be there.
19. By virtue of [SECTION] of the Act, whatever be the nature of interest given to a female member at a partition, she takes the property as a full owner. With regard to the property acquired by a female Hindu under a partition, it is also useful to refer to the observations of the learned author [ENTITY] in his "Hindu Law Principles and Precedents" (8th Edition 1987). He has this to say:
Where a property is acquired by a female Hindu at a partition it is in virtue of a preexisting right and such an acquisition does not fall under [SECTION] even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property. To restrict this interest under an instrument to a limited estate, it is necessary to establish that but for this instrument she cannot have taken any interest in the property.
20. The test is, therefore, to find out whether the acquisition is under the instrument or otherwise. If even without the instrument she has an interest which interest becomes enlarged into an absolute interest by the enactment of this section, that absoluteness cannot be taken away by an instrument of partition giving her a qualified interest in the property. No doubt, the Page 1909 word "instrument" in Sub-section (2) is comprehensive enough to take in an instrument of partition. But the proper construction of Sub-section (2) appears to be that it relates to acquisitions under instruments in cases where but for the instruments she can have no right in the property acquired.
21. As regards property given to the mother at the time of partition (as is in the instant case), it is also pertinent to refer to the commentary of learned author [ENTITY] in his work "Hindu Law and usage" (14th Edition 1998) dealing with the property coming to the share of the mother in a partition, says thus:
Prior to the Act, when the mother was given the property at the time of partition, it was held by her only as limited owner unless that was specifically given to her to be held by as her absolute stridhana. But she now takes the property as full owner. In [PRECEDENT] it was held that the woman in a Hindu family is having an existing right to be maintained and has rights against the family property. It is, therefore, based upon that right that the mother is given a share in the family property at the time of partition by coparceners. Consequently, the partition deed is not one which creates a new right in her. It does not amount to creating a new right for the first time in her in property. It cannot therefore be said that she acquired property by virtue of that deed; and consequently Sub-section (2) is not attracted and [SECTION] only would apply; thereby enlarging her rights in the property as absolute rights notwithstanding any recitals in the deed.
22. In the same work, the learned author also has referred to a decision of the Supreme Court and make the following observations:
In [PRECEDENT], the Supreme Court had to consider a case where the husband bequeathed to his wife half of his property imposing certain restriction on alienation. The Supreme Court observed that if a Hindu female acquires property under a written instrument or decree, where such acquisition is not traceable to any antecedent title Sub-section (2) would be attracted and where an antecedent title is traceable document in the nature of a will is of no consequence and the case will be covered by [SECTION]. The Supreme Court held in this case that [SECTION] applied and the wife had an absolute right and the suit challenging an alienation made by her was liable to be dismissed.
23. It is also observed by the learned author at page 1107 of the said work thus:
Where property is allotted or transferred to a female in lieu of maintenance or a share at partition the instrument is taken out of the ambit of Sub-section (2) and would be governed by [SECTION] despite any restrictions placed on the powers of the transferee.
24. Keeping in view the above position in law as has been laid down by the Apex Court and also the views of the learned author referred to above with Page 1910 regard to [SECTION] and [SECTION] of the Act, in the case on hand, it is not disputed by the parties that the suit property fell to the share of [ENTITY] under a partition effected through a registered partition deed as per Ex.P-1. Therefore, it has to be held that as it was a share given to [ENTITY] under a partition, the case falls squarely within the ambit of [SECTION] of the Act and not under [SECTION] of the Act. Once the said conclusion is reached, it follows that [ENTITY] has absolute right over the suit property and the restrictions put on her in the partition Ex.P-1, therefore, will have to be ignored.
25. In this regard, in the decision referred to by the learned Counsel for the appellant reported in the case of [PRECEDENT] a Division Bench of Patna High Court has observed that where a family property was divided by the owner between his wife and sons under a partition and in the partition deed, the wife was directed to meet the expenses of litigation and ceremonies by selling the properties allotted to her, such a direction held did not take the case out of the ambit of [SECTION] of the Act.
In another case in the case of [PRECEDENT], it has been held that:
In order to attract the provisions of [SECTION], three things must necessarily exist. Firstly, there must be an instrument or a document in writing. Secondly, that instrument or document must be the source or the foundation of the right of the Hindu female to the property in question: and thirdly, that document must contain terms which create "restricted estate" taken by the Hindu female. If any one of these essentialities is absent, the estate taken by the woman would fall under [SECTION] and she will get absolute estate. The three requirements constitute the test to determine whether a given falls under Sub-section (2). If that test is not fulfilled, and if the requirements of [SECTION] are fulfilled, the woman instead of a 'restricted estate' would get an absolute one. [SECTION] therefore can be said to be subject to Sub-section (2).
26. Thus it becomes clear from the above observations made by the court, that if the instrument does not constitute the source of foundation of the right to the property, a female Hindu takes the opportunity absolutely despite the instrument in her favour restricting her right in the property.
27. As [ENTITY] also had a right to the joint family property of the family, what was given to her was her share of the property under the partition deed Ex.P-1 and therefore, it cannot be said that the right to the suit property was created for the first time and newly under the instrument of partition. But what was given to her under the partition was, as already stated by me, her share in the joint family property. Such being the nature Page 1911 of the right derived by [ENTITY], merely because certain conditions were attached to the property which fell to her share in the partition, it cannot be said that the restrictions will have to be given effect and that [SECTION] is applicable and not [SECTION].
28. I therefore, hold that [SECTION] of the Act comes into operation in the instant case in respect of the suit property which fell to the share of [ENTITY] under the partition. [ENTITY] in fact became the absolute owner of the suit property and therefore, the conditions or the restrictions put will have to be ignored and consequently, the subsequent sale of the suit property by [ENTITY] under the sale deed Ex. P-2 dated 22.4.1983 will have to be held valid in law and therefore, the courts below were completely in error in not applying correct provision of law and by holding that [ENTITY] had no saleable interest in the suit property, the trial court as well as the lower appellate court committed serious error of law and the very fact that the suit property was give to the share of [ENTITY] and that she was also given the right to sell the suit property though for the purpose of incurring the marriage expenses, it becomes clear from a reading of conditions of Ex.P-1 that [ENTITY] also had saleable interest. As rightly submitted by the learned Counsel for the appellant, there is no condition mentioned in the partition deed Ex.P-1 that if [ENTITY] does not spend amount towards the marriage expenses of her children, the property would revert back to the family and therefore, what is not there in the document of partition cannot be read into it. Hence, the answer to the first question of law raised is that, [ENTITY] derived absolute ownership over the suit property by virtue of [SECTION] of the Act and having become the exclusive owner of the suit property, she also had the right to sell it and the alienation made by her by way of sale in favour of the first appellant herein will have to be held as valid in law.
29. The next question is with regard to application of relevant article of the [ACT] to the case on hand. Both the courts below have come to the conclusion that [SECTION] of the [ACT] applies in view of the nature of the prayer made in the plaint by the appellant. I am unable to subscribe myself to the view taken by the courts below because in the written statement filed, the respondent has clearly admitted that he is claiming adverse possession of the suit property against the title of the appellant and therefore, the very stand taken by the respondent in the written statement and the trial court also having flamed an issue with regard to the claim of the respondent by way of adverse possession, [SECTION] comes into play and not [SECTION] and therefore, the courts below also committed serious error of law in not applying the proper article to the case on hand. Accordingly, I hold that the suit of the appellant is not barred by limitation. As far as the decisions referred to by the respondents' counsel is concerned, the principles laid down in the said decisions are all well established principles of law, but the application of the said principles will depend upon the facts and circumstances of each case.
Page 1912
30. So far as the scope of interference by this Court in the second appeal is concerned, all the decisions referred to by the learned Counsel for the respondents lays down the well established principles and the Apex Court has summed up the said principles in the recent decision [PRECEDENT] wherein the Supreme Court has observed thus:
The principles relating to [SECTION] summarised as follows: (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognised exceptions are where (a) the Courts below have ignored material evidence or acted on no evidence: (b) the Courts have drawn wrong inferences from proved facts by applying the law erroneously; or (c) the courts have wrongly cast the burden of proof. When refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
31. Thus, where the courts below have drawn wrong inference from proved facts by applying law erroneously, this Court will get the jurisdiction to interfere under [SECTION] of the [ACT]. In the case on hand also, though on facts both the courts have concurred with regard to the appellant having failed to show that [ENTITY] has spent any amount towards marriage expenses or of having incurred any loan, yet in the application of law is concerned, both the courts committed serious error by holding that [ENTITY] had no saleable interest in the suit property and hence, I am of the view that both the courts lost sight of [SECTION] of the [ACT] which confers absolute ownership to a female Hindu in Page 1913 respect of property which falls to her share in a partition. As such, interference is called for despite concurrent finding of facts by the courts below.
32. In the result, I proceed to pass the following order:
33. The appeal is allowed.
34. The judgments and decrees passed by the lower appellate court as well by the trial court are set aside.
35. The suit of the appellant is allowed and decreed as prayed for by holding that the appellant is declared to be the owner of the suit property and is also entitled to possession of the same. The respondent shall deliver possession of the suit property to the appellant within a period of three months, failing which the appellant is at liberty to get the possession with due assistance from the court in accordance with law.
36. An enquiry is ordered in regard to mesne profits in accordance with [SECTION] of the [ACT]. No Costs.