: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.481 OF 2005 SECOND APPEAL NO.481 OF 2005 SECOND APPEAL NO.481 OF 2005 Tukaram Ananda Ingole ...Appellant V/s. 1. Shevanta Sopan Ingole, Deceased, . 2. Bhagwat Pandurang Pawar ...Respondents Mr.A.P. Kulkarni, Advocate, for the Appellant. Mr.Surel Shah, Advocate, for Respondent No.2. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 20TH FEBRUARY, 2008. DATE : 20TH FEBRUARY, 2008. DATE : 20TH FEBRUARY, 2008. JUDGMENT : JUDGMENT : JUDGMENT : 1. The appellant-original plaintiff has taken an exception to the Decree of the Trial Court dismissing the suit filed by him and the Decree of the Appellate Court by which the Appeal preferred by him has been dismissed. The question which is canvassed in the Second Appeal is that whether the 1st respondent (1st defendant) can claim to have become absolute owner of the suit property on the basis of sub-section 1 of section 14 of the Hindu Succession Act, 1956. 2. The suit property was originally owned by one Hariba who expired in the year 1939. He had two sons by the name Ananda and Sopan. Both the sons pre-deceased the said Hariba. Sopan left behind his : 2 : widow Shevantabai (1st respondent-1st defendant). Ananda was survived only by his son Tukaram (appellant-plaintiff). According to the case of the appellant-plaintiff Sopan died prior to coming into force of Hindu Women’s Right to Property Act, 1937. At the time of death of Ananda, he alongwith Hariba were the only surviving coparceners. According to the plaintiff, the said Sopan died in the year 1933 and Ananda died in the year 1935. It is, therefore, contended that on demise of Hariba the plaintiff Tukaram became the only surviving coparcener and therefore the owner of the suit property. It is contended that 1st defendant Shevantabai became a widow prior to coming into force of the said Act of 1937 and therefore she had no right, title and interest in respect of the suit property. 3. In the year 1955, a suit was filed by the appellant-plaintiff against the 1st respondent-1st defendant. According to the case of the plaintiff, there was a settlement between the appellant and the 1st respondent in the said suit on 27th August, 1956 and under the said settlement, the 1st respondent relinquished her right, title and interest in respect of the suit property. Under the said settlement it was provided that one half portion of the suit : 3 : property shall remain in possession of the 1st respondent in lieu of her maintenance and after her demise, the property shall be revert to the appellant-plaintiff. The compromise records that the 1st respondent shall not sale or transfer the suit property. 4. The suit was filed by the appellant as 1st respondent had executed a sale deed in respect of the suit property in favour of the 2nd respondent. The contention raised in the plaint is that the said sale deed was ab-initio void and not binding on the plaintiff-appellant. The appellant-plaintiff, therefore, claimed declaration in the suit as regards the sale deed and injunction as against the 2nd respondent. A prayer for possession was also made. 5. The suit was contested by the 1st respondent by raising a contention that by virtue of sub-section 1 of section 14 of the Hindu Succession Act, 1956, she became the absolute owner of the suit property and, therefore, she had every right to execute the sale deed. 6. The learned Trial Judge held that the appellant-plaintiff failed to establish that the 1st : 4 : respondent had relinquished her right, title and interest in respect of the suit property by the consent decree passed in the said suit of the year 1955. The Trial Court upheld the contention of the 1st respondent that she had become absolute owner of the suit property by virtue of sub-section 1 of section 14 of the said Act of 1956. In Appeal preferred by the appellant, the 1st Appellate Court held that sub-section 2 of section 14 of the said Act of 1956 will not apply and the Trial Court was right in holding that the 1st respondent had become absolute owner of the suit property by virtue of sub-section 1 of section 14 of the said Act of 1956. 7. The learned Advocate for the appellant has invited my attention to the terms and conditions incorporated in the consent decree passed in the said suit of 1955. He submitted that as the appellant had become owner of the suit property on demise of Hariba and as the 1st respondent had no pre-existing right of maintenance at the time of coming into force the said Act of 1956, sub-section 2 of section 14 of the said Act of 1956 will apply. His submission is that the compromise was effected in the said suit after the said Act of 1956 came into force. He submitted that the effect of the consent decree was the : 5 : relinquishment of the right, title and interest of the 1st respondent on the date of passing of the consent decree. His submission is that assuming that any right accrued to the 1st respondent under sub-section 1 of section 14 of the said Act of 1956, in view of applicability of sub-section 2 of section 14 of the said Act of 1956, the right has been taken away by the consent decree. 8. The learned Advocate appearing for the 1st respondent placed reliance on the decision of the Apex Court in the case of V. Tulasamma and Ors. V/s. Sesha Reddy [(1977) 3 SCC 99]. By placing reliance on the said decision, he submitted that there was already a pre-existing right to claim maintenance on the date on which the said Act of 1956 came into force and therefore it cannot be stated that only a limited right was created by the consent decree in favour of the 1st respondent for the first time without their being any pre-existing right. He placed reliance on another decision of the Apex Court in the case of Raghubar Singh and Ors. V/s. Gulab Singh and Ors. [AIR 1998 SC 2401]. He submitted that the view taken by the Courts below is right and no interference is called for. : 6 : 9. I have given careful consideration to the submissions. It is true that the 1st respondent became a widow prior to coming into force of the said Act of 1937. In the case of Raghubar Singh & Ors. (supra), the Apex Court held that the right to maintenance of a Hindu female is a pre-existing right which existed in Hindu Law long before the said Act of 1937 came into force and is not a creation of the said statute. The Apex Court held that the statute only recognizes the pre-existing right which was available to a Hindu female. In paragraph No.23 of the said decision, the Apex Court held that the right to maintenance of a Hindu female flows from the social and temporal relationship between the husband and wife and that right in case of a widow is a pre-existing right which existed under the Hindu Law long before passing of the 1937 enactment. The Apex Court further held that where a Hindu widow is in possession of the property of her husband, she has a right to be maintained out of it and she is entitled to retain possession of that property in lieu of her right to maintenance. 10. It will be necessary to refer to the consent terms filed in the said Regular Civil Suit No.119 of 1955. The first part of the said consent terms : 7 : provides that the suit property shall be equally partitioned between the appellant and the 1st respondent and the 1st respondent will keep one half share in the suit property for her maintenance. The consent terms record that the partition shall be effected through the Collector and the 1st respondent will not alienate the said one half share. The consent decree further records that the 1st respondent had given up all her contentions and that after her demise, the appellant will become full owner of the said one half share given to the 1st respondent. It must be also noted here that perusal of the plaint in the said Regular Civil Suit No.119 of 1955 shows that the prayer made in the said suit was for possession of the suit property and for mesne profits. The said prayer made in the suit filed on 30th September, 1955 shows that the 1st respondent was possessing the suit property on the date on which the said Act of 1956 came into force. On that date, as held by the Apex Court, the 1st respondent had a pre-existing right to claim maintenance against the estate held by her deceased husband. 11. The learned Counsel appearing for the appellant has placed reliance on sub-section 2 of section 14 of the said Act of 1956. Apart from the : 8 : fact that the consent decree was passed after coming into force of the said Act of 1956, the right to maintenance recognized by the consent decree is not a right which was created for the first time under the consent decree and it was a pre-existing right of the 1st respondent before coming into force of the said Act of 1956. The said pre-existing right cannot be defeated by the subsequent compromise. 12. Therefore, the Courts below were right in holding that the appellant has failed to establish his exclusive ownership over the suit property. Therefore, the Courts were right in holding that the 1st respondent became the absolute owner by virtue of sub-section 1 of section 14 of the said Act of 1956. 13. In view of discussion made above, no substantial question of law arises. The Second Appeal is dismissed with no orders as to costs. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]