IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.281 of 1996. Judgment Reserved on:22.4.2008. Date of decision: 05.06.2008 Smt.Laxmi Devi ….Appellant Versus Chain Singh & Others ….Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Mr.Bhupender Gupta, Senior Advocate with Ms.Charu Gupta, Advocate. For Respondent-1: Mr.G.D. Verma, Senior Advocate with Mr.B.C. Verma, Advocate. For Respondent-2: Mr.K.D. Sood with M/s.Sanjeev Sood and Haresh Sood, Advocates. Dev Darshan Sud,J. This is the defendant’s appeal against the judgment of the two Courts below decreeing the suit of the plaintiffs Chain Singh and Yangian Singh declaring the gift executed by late Smt.Durgi Devi in favour of the appellant on 7.10.1977 Ex.PD as being illegal, void and in-operative against the interest of plaintiff. 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 The facts as pleaded are that one Shri Kali Ram was the co-owner of the land alongwith other co- sharers in villages Sheeli Kalan, Jeunti and Juindon in Tehsil Kasauli, District Solan, as described in Jamabandies Ex.PE, Ex.PF and Ex.PG for the years 1974- 75 and 1975-76 alongwith a residential house consisting of two rooms, a kitchen etc. etc. He executed a will Ex.PA on 3rd May, 1972 bequeathing his half share to the plaintiffs and the other half to his wife Smt.Durgi Devi for whom he had created a life estate. Testamentary disposition was that after the death of Durgi Devi, the property would revert to the plaintiffs. Late Smt.Durgi Devi set up another will dated 3.5.1972 stating therein that the earlier will had been revoked and that she was the owner in possession of the land etc. This controversy between the two wills was the subject matter of Civil Suit No.21/1 of 1975, titled: Yangian Singh and Chain Singh vs. Durgi Devi, in the Court of learned Senior Sub Judge, Kasauli. The suit of the respondent-plaintiff herein was decreed and the plea of the defendant was negatived. In appeal [Ex.PZ(1)], being Civil Appeal No.58-S/13 of 1976, titled: Smt.Durgi Devi vs. Yangian Singh and others, which was filed in the Court of learned District Judge, Solan, it was affirmed that the will set up by late Smt.Durgi Devi (Ex.DA therein) was not the last will of testament of the deceased. Her appeal was accordingly dismissed. It is 3 undisputed that this judgment was maintained up to the Supreme Court. In other words the will Ex.PA was upheld by all the Courts. It is undisputed that gift deed Ex.PD was executed by late Smt.Durgi Devi in favour of the appellant for the other half of the property which was, according to the plaintiff, to revert to them after her death. This is the bone of contention between the parties. Both the Courts below, on a consideration on the material on the record, have held that the gift is void and inoperative, against the right of the plaintiff and that the suit land, subject matter of Ex.PD, was to revert to the plaintiff-respondent on the death of Smt.Durgi Devi. During the pendency of the appeal before the learned District Judge, an amendment was sought in the written statement which was filed by the defendant- appellant to the effect that she had become the absolute owner of this property by virtue of provisions of Section 14 of the Hindu Succession Act, 1956 (hereinafter referred to as the `Act’) as she was un-disputably in possession of this property in lieu of her pre-existing right of maintenance. The learned District Judge has disallowed this application. The appeal, though filed in the year 1996, has remained pending on the record of this Court and was admitted on 22.8.2002 on the following questions of law:- 4 “1. Whether both the learned courts below have misappropriated (sic – mis-appreciated) and misapplied the provisions of Section 14 of the Hindu Succession Act and the judgments in this regard as quoted by them? 2. When the plaintiffs-respondents were held to be owner qua half of the share of late Shri Kali Ram in the previously instituted suit which judgment and decree attained finality between the parties, could the plaintiffs-respondents again file and maintain a suit with respect to the other half portion of the suit property for which relief as claimed by them was declined? 3. Whether the application for amendment of the written statement has wrongly been rejected by the learned lower Appellate Court? I have heard learned counsel for the parties and have gone through the record of the case. Questions No.1 and 3 require consideration before question No.2 is taken up for adjudication. Learned counsel appearing for the appellant submits that the learned Courts below were not correct in appreciating the fact that the provisions of Section 14 of the Act are mandatory and brook of no other interpretation save and except that a Hindu female in possession of property in lieu of her right 5 to maintenance is its absolute owner. Learned counsel submits that the legislative intent is clear that the rights of Hindu Widows are to be protected and that concept of limited estate has been abolished except as provided for in the Act itself in Section 14(2) of the Act. He submits that once it is recognized and accepted that a Hindu Widow has a pre-existing right of maintenance, she would be absolute owner of the estate in her possession. Learned counsel for the respondent submits that the property having been the subject matter of previous litigation between the parties and Ex.PA being specifically adjudicated upon, no right can be claimed by the defendant. She was a limited owner which fact was recognized by the Courts and she cannot claim any perfection of title. Before the main issue regarding Section 14 is taken up, the second question regarding amendment is being considered. The learned Additional District Judge was in error in not allowing the amendment. His reasoning is clearly against law. The amendment which was sought by the appellant was in the following terms:- “II-A. That half of share left in Will dated 3.5.1972 in favour of Smt.Durgi in lieu of her maintenance she being wife/widow for maintaining herself after donors death and as such have become absolute owner under law of 6 her share left in her favour. A copy of the amended plaint is also attached.” This is not as if this plea of ownership was being raised for the first time as, in the written statement the defendant-appellant had, in reply to paragraph-3 of the plaint, clearly stated that: “III. In respect to para 3 of the plaint it is submitted the defendant No.1 has neither taken any undue advantage of Revenue entries in her favour nor she has transferred the land in favour of the defendant No.2 surreptiously as alleged. The defendant No.1 has executed a valid and legal gift on 7.10.77 in favour of defendant No.2 for which she was legally competent by virtue of the decree of Senor Sub Judge Solan dated 26.8.76. It is emphatically denied that the defendant No.1 was not absolute owner of any part of the demised property and that she had not right, title and interest for such transfer.” Learned counsel appearing for the appellant submits that no evidence was required on this amended plea it was nothing but clarificatory in nature and reiteration of the settled legal position for which there was already material on the record. Learned counsel appearing for the respondent submits that such 7 amendment if allowed would take away the vested rights of the plaintiffs and could not be permitted at this late stage. In B.K. Narayana Pillai vs. Parameswaran Pillai and Another, (2000) 1 SCC 712, the Supreme Court has held that: “3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled-for multiplicity of litigation. 8 4. … … … … … … … The principle applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as the question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings… … … … … … … …” He also places reliance on Ragu Thilak D.John vs. S.Rayappan and Others, (2001) 2 SCC 472, 9 holding that allowing amendment in pleadings should be liberal and a pedantic approach should be avoided. Learned counsel for the respondent-plaintiff submits that the appellant herein being the successor-in- interest of deceased Smt.Durgi Devi cannot take up a defence which was not taken by the defendant that is to say no right of maintenance having been set up, could not now be urged for adjudication. He places reliance on judgment of this Court in Smt.Amar Devi vs. Smt.Shakuntla Devi, ILR1975 (Himachal Series), 375. The submissions of the learned counsel appearing for the respondent cannot be accepted. Even without the amendment, there is ample material on the record to show that what late Smt.Durgi Devi had acquired was in lieu of right to maintenance to which no attention has been given by the Courts below. In any event, since no evidence was required, and only argument on law, there was no question of raising a new plea before the appellate Court. All that the appellant was urging was the foundation of a right to ownership on the basis of Section 14 of the Act on the existing material and documents on record. One other fact needs be noticed and that is that the respondent in his evidence has admitted that half of the land which was not granted to them by the decree, which was the basis of their right of ownership, had been given to her as in lieu of maintenance. PW-1 Shri Yangian Singh has stated in his examination-in-chief: 10 “… … … … … … … … … …. By virtue of this WILL we got half share of the land in dispute and other half was given Durgi defendant No.1 for her maintenance till her life time. After the death of Durgi her life interest in said half share was to revert back to us but defendant No.1 has gifted said half share to defendants No.2 and 3 without any authority or title. … … … … … … … … … … … … … … … … … Even after the passing of the decree defendant No.1 received Rs.200/- from us for her maintenance in the presence of the villagers. I tender Ex.PB copy of judgment, Ex.PC copy of decree-sheet dated 26.8.76, copy of gift deed Ex.PD, and copy of jamabandi Ex.PE, PF and PG”. The learned appellate Court should have at- least considered this fact rather than undertaking an expansive exercise of pronouncing on the merits of the amendments. I, therefore, hold not only that the learned District Judge was wrong in disallowing the amendment but the appellant was only urging a clarificatory pleading in support of her case. The amendment sought neither withdrew any admission or vested right of the plaintiff but was of a nature which was required and necessary for the adjudication of the controversy between the parties. This question is answered in favour of the appellant that is to say the 11 learned District Judge was wrong in disallowing the amendment. A natural consequence of this would have been to send the matter to the District Judge for decision afresh. However, no remand is required as there is sufficient evidence on the issue on record of this appeal which is being disposed of by this Court. On the question of the applicability of the provisions of the Act, which is central to the entire controversy between the parties, the legal position may be considered. Section 14 of the Act provides:- “14. 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 the 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. 12 (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.“ What is crucial for decision is, as to whether the will Ex.PA leaves half of the property for maintenance of Smt.Durgi Devi or otherwise. In other words, whether the subject matter of the gift Ex.PD was subject of charge of maintenance or not. In Raghubar Singh and others vs. Gulab Singh and others, AIR 1998 SCC 2401, the provisions of Section 14 of the Act were considered by the Supreme Court. Adjudicating on the right of the Hindu Widow for maintenance the Court held:- “13. The first question, requiring an answer, therefore, is: "what are the obligations of a Hindu husband towards the maintenance of his wife both during his life time and after his death?" 14. According to the old Shastric Hindu Law, marriage between two Hindus is a sacrament - a religious ceremony which results 13 in a sacred and a wholly union of man and wife by virtue of which the wife becomes a part and parcel of the body of the husband. She is, therefore, called Ardhangani. It is on account of this status of a Hindu wife, under the Shastric Hindu law, that a husband was held to be under a personal obligation to maintain his wife and where he dies, possessed of properties, then his widow was entitled, as of right, to be maintained out of those properties. The right of a Hindu widow to be maintained out of the properties of her deceased husband is, thus, a spiritual and moral right, which flows from the spiritual and temporal relationship of husband and wife, though the right is available only so long as the wife continues to remain chaste and does not remarry. 15. Mulla in his classic work on "Hindu Law," 14the Edn. , dealing with the characteristic of the right of maintenance of a Hindu wife observes:-"a wife is entitled to be maintained by her husband, whether he possesses property or not. When a man with his eyes open marries a girl accustomed to a certain style of living, he undertakes the obligation of maintaining her in that style. The 14 maintenance of a wife by her husband is a matter of personal obligation arising from the very existence of the relationship, and quite independent of the possession by the husband of any property, ancestral or self- acquired.” (Emphasis ours). 16. The obligations, under the Shastric Hindu Law, to maintain a Hindu widow out of the properties of her deceased husband received a statutory recognition with the coming into force of the Hindu Women's Rights to Property Act, 1937. The law on the subject was, thereafter, consolidated and codified by the Hindu Married Women's Right to Separate Maintenance and Residence Act, 1946 which came into force on 23/04/1946. The right to maintenance of the Hindu widow, as a pre-existing right, was thus recognised by the two statutes referred to above but it was not created for the first time by any of those statutes. Her right to maintenance existed under the Shastric Hindu Law long before statutory enactments came into force. After the attainment of independence the need for emancipation of women from feudal bondage became even more imperative. There was growing 15 agitation by Hindu women for enlargement of their rights as provided by the Shastric Hindu Law in various spheres. It was at this juncture that the Parliament stepped in and enacted various statutes like the Hindu Marriage Act, 1956. The Hindu Adoption and Maintenance Act, 1956, and The Hindu Succession Act, 1956 providing for intestate succession. 17. The Hindu Succession Act, 1956 made far reaching changes in the structure of Hindu law by removing the traditional limitations on the powers of a Hindu widow to deal with the property of her deceased husband, in her possession in lieu of her right to maintenance and the Act made her an absolute owner of the property, over which hithertofore she had only a limited right. 18. A most elaborate discussion about the rights of a female Hindu before and after the coming into force of the Hindu Succession Act, 1956 and particularly the provisions of Section 14 of the Act, is contained in a three Judge Bench judgment of this Court in V. Tulasamma v. Sesha Reddy (Dead) by L. Rs. , (1977) 3 SCC 99 : (AIR 1977 SC 1944 ). Dealing with the provisions of the Hindu Succession 16 Act, 1956, this Court in V. Tulasamma v. Sesha Reddy (Dead) by L. Rs. , (supra) observed:-"the Act is a codifying enactment, and has made far-reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate. . . . . . . . " 22. Thus, we find that there is enough authority for the proposition that the right to maintenance of a Hindu female is a pre-existing right, which existed in the Hindu Law long before the Act of 1937 or the Act of 1946 came into force and is not a creation of those statutes, which only recognised that position. … … … … …”. 23. Accordingly, we hold that the right to maintenance of a Hindu female flows from the social and temporal relationship between the husband and the wife and that right in the case of a widow is "a pre- existing right," which existed under the Shastric Hindu Law long before the passing of the 1937 or the 1946 Acts. Those acts merely recognised the position as was existing under 17 the Shastric Hindu Law and gave it a "statutory" backing. 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 the possession of that property in lieu of her right to maintenance”. (Emphasis supplied) It is nobody’s case that Smt.Durgi Devi was not entitled to any maintenance. In-fact, the plaintiff himself as PW-1, as noticed above, admitted in his evidence that part of the property was given to her only for her maintenance. The will Ex.PA on the basis of which the plaintiffs claimed their right, also recognizes this right of maintenance that is to say the recital is clearly to the effect that the wife (Smt.Durgi Devi) of the testator and the testator would be looked after by the plaintiffs during his life time and after his death his wife if alive. In other words, maintenance became a charge on the property. The law now is well settled. As held by the Supreme Court in Raghubar Singh’s case supra, the plaintiff cannot say that there was no pre-existing right of maintenance and it was claimed for the first time only with the filing of the written statement. Learned counsel for the appellant has also relied upon the decision of this Court in Smt.Namo Devi vs. Rattan Chand and others, AIR 1990 Himachal Pradesh 47, Dalip 18 Chand and another vs. Chuhru Ram, AIR 1989 Himachal Pradesh 44 and Amar Singh vs. Devki Devi and another, 1998(2) S.L.J.1421 in support of his contention that a widow acquires absolute right to the property in her possession having a pre-existing right for maintenance. This proposition of law is now beyond pale of any controversy and does not require any other precedent for support. Learned counsel appearing for the respondent submitted that the right has been acquired for the first time on the Will and therefore in accordance with the decision of the Supreme Court in Ghumpa vs. Jai Devi (1994)4 SCC, 511. This submission cannot be accepted as this judgment has been over-ruled by the Supreme Court in C. Masilamani Mudaliar and Othes vs. Idol of Sri Swaminathaswami Swaminathaswami Thirukoil and others, (1996)8 SCC 525, which decision is also in accord with the judgment in Raghbar’s case (supra). This question is, therefore, answered in favour of the appellant and against the respondent. I hold that the Courts below were wrong in holding that Smt.Durgi Devi, predecessor-in-interest of the appellant, was not the absolute owner of the land gifted to the appellant and consequently the gift Ex.PD was void and inoperative on the interest of the plaintiffs. In view of what I have held, the third question does not require determination. The appeal succeeds and the judgment of the two Courts below is 19 quashed and set aside. The gift Ex.PD is held to be valid and the appellant is absolute owner having been the beneficiary from the absolute owner Smt.Durgi Devi. There shall be no order as to costs. June 5, 2008. (Dev Darshan Sud) (aks) Judge.