HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE K.S. APPA RAO S.A.Nos.95 and 515 of 2000 COMMON JUDGMENT: (Per Hon’ble Sri Justice K.S. Appa Rao) These two appeals are preferred by the second plaintiﬀ aggrieved by the judgment and decree, dated 22- 12-1999 passed in A.S.Nos.17 and 18 of 1994, which had reversed the judgment and decree passed in his favour by the trial Court in two similar suits being O.S.Nos.11 and 218 of 1985 between the same parties relating to the house property and agricultural property respectively. 2. Previously when these two appeals came up for consideration before a learned single Judge of this Court, the learned single Judge referred these appeals for adjudication along with the following questions for consideration and pronouncement by a Division Bench: 1. Whether a concubine has a pre-existing right of maintenance from her paramour or after him, from his estate? 2. Whether grant of such limited right of maintenance by the paramour to her during lifetime of paramour, gets enlarged into an absolute estate under Section 14(1) of the Hindu Succession Act, 1956? 3. Accordingly, the appeals came up for consideration before this Court. Since the issue in these appeals is interconnected and the parties are also similar, both the appeals are clubbed and this common judgment is passed. The appellant and the respondents are referred to as plaintiﬀ and defendants as arrayed before the trial Court. 4. The brief facts of the case, which are necessary for the disposal of these two appeals, are as under: The plaintiﬀ in both the suits in O.S.No.11 of 1985 and 218 of 1985 claimed the property through a common document in Ex.A-24, a registered gift deed executed by late K. Chinna Sarabha Reddy in favour of Smt. Singamsetti Durgamma, who is arrayed in the proceedings herein as concubine of K. Chinna Sarabha Reddy. O.S.No.11 of 1985 relates to the house property, which was ﬁled for declaration of title and injunction, whereas O.S.No.218 of 1985 relates to the agricultural land admeasuring Ac.1-02 cents, which was ﬁled for declaration of title and possession. The said Durgamma is the sister of the ﬁrst plaintiﬀ-Singamsetti Rajamma and she having died pending the suit, her adopted son was impleaded as second plaintiff. The defendants are the widow and sons of late K. Chinna Sarabha Reddy. As per the allegations in the plaint, the said Chinna Sarabha Reddy gifted agricultural land admeasuring Ac.1- 02 cents to Durgamma, who was his kept mistress, towards her maintenance under Ex.A-24, dated 02-04-1945 by creating life interest in her and vested remainder with donor and his heirs. It is alleged that the said Durgamma gifted the house built thereon to plaintiﬀ Nos.1 and 2 under Ex.A-2, registered gift settlement deed, dated 04-09-1978 by creating life interest in the ﬁrst plaintiﬀ and vested remainder in the second plaintiﬀ. It is further alleged that the ﬁrst plaintiﬀ and Durgamma have purchased two adjacent houses from out of the income received by selling their ancestral properties and constructed a house thereon, which was later gifted to the ﬁrst plaintiﬀ. Therefore, they pray that the suits may be decreed. 5. It is the case of the defendants in their written statement that late Chinna Sarabha Reddy purchased house sites in Item Nos.1 and 2 of the suit property in O.S.No.218 of 1985 and constructed house therein with his own money and gifted Ac.1-02 cents in Sy.No.405/2 of Chintapalem village to one Durgamma under the gift deed with limited rights for her maintenance with a rider that her enjoyment was only during the lifetime and after her death, the property should be reverted back to the donor and that Durgamma has no right of alienation as she was only a kept mistress and that late Chinna Sarabha Reddy was paying taxes to the said house properties and it was mutated in his name. Therefore, the suits ﬁled by the plaintiﬀs are liable to be dismissed. 6. During the course of trial, the respective parties adduced both oral and documentary evidence. On behalf of the plaintiﬀs, PWs.1 to 5 were examined and Exs.A-1 to A- 25 were got marked. On behalf of the defendants, DWs.1 to 3 were examined and no documents were got marked. 7. The trial Court, after due trial, decreed both the suits through the judgment dated 17-08-1994 holding that the plaintiﬀs have proved Ex.A-24, gift deed, executed by Chinna Sarabha Reddy to his kept mistress (concubine) Smt. Durgamma and also Ex.A-2 further alleged gift deed executed by Durgamma in favour of the plaintiﬀs. It was also held that Ex.A-24 gift deed was executed by Chinna Sarabha Reddy in favour of Durgama in lieu of her right to maintenance during her lifetime and the said limited interest gets enlarged under Section 14(1) of the Hindu Succession Act, 1956 (for short ‘the Act’) and thereby, Durgamma and after her, the plaintiﬀs acquired absolute rights over the plaint schedule properties. Aggrieved by the same, the defendants preferred A.S.Nos.17 and 18 of 1994 before the Senior Civil Judge, Markapur. 8. The lower appellate Court, during the course of trial, framed the following points for consideration: 1. Whether the vacant site of item No.1 of plaint schedule in O.S.11/85 was purchased by late K. Chinna Sarabha Reddy and kept in the name of his kept mistress Durgamma benamily and whether the said Chinna Sarabha Reddy thereafter purchased item No.2 of plaint schedule in O.S.11/85 and thereafter he made constructions therein and delivered possession of suit houses to Durgamma? 2. Whether as per the provisions of Section 14(1) of Hindu Succession Act, 1956, the limited right of late Durgamma enlarged into absolute right? 9. In the lower appellate Court, plaintiﬀs got marked Ex.A-26, relevant entry in Photostat copy of revision register, and the defendants got marked Ex.B-1, house tax demand register, as additional evidence. 10. On point No.1, the lower appellate Court held that there is no material on record to show that Durgamma and her sister (ﬁrst plaintiﬀ) had sold away their ancestral property and had purchased site on which the suit houses in Item Nos.1 and 2 of the suit property in O.S.No.218 of 1985, were constructed. Though the original sale deed Ex.A-1 standing in her name was in possession of Durgamma and though Durgamma was in possession of the houses till her lifetime, they are not conclusive proof of purchase of the land by Durgamma under Ex.A-1. The lower appellate Court also found that Ex.A-24 gift deed itself states that the houses and the land belong to Chinna Sarabha Reddy and out of love and affection, he gifted it to Durgamma. 11. On Point No.2 relating to the applicability of Section 14(1) of the Act, the lower appellate Court held that a concubine has no right to claim maintenance from her paramour and as such Ex.A-24 gift deed executed by Chinna Sarabha Reddy was not in recognition of any pre-existing right of maintenance available to Durgamma. The lower appellate Court by placing reliance on the decision of the Supreme Court reported in AMMIREDDY RAJA GOPALA RAO v. AMIREDDI SITHARAMAMMA [1], came to the conclusion that the life interest granted to Durgamma under Ex.A-24 was not a pre-existing right and it was a grant in the ﬁrst instance and as such Section 14(2) of the Act would apply. Consequently, it was held that the limited right of maintenance granted to Durgamma under Ex.A-24 does not get enlarged into an absolute estate under Section 14(1) of the Act. Being aggrieved with the ﬁndings of the lower appellate Court, the present second appeals are filed as stated above. 12. The appeals are admitted on 17-02-2000 on the following substantial questions of law formulated under grounds (a) to (c): (a) Whether Ex.A-1 dated 12-08-1937 which is a sale deed in favour of Durgamma could be discarded in view of the maintenance settlement deed Ex.A-24, dated 2-4-1945 and could be that Sarabha Reddy purchased the property under Ex.A-1 in favour of Durgamma contrary to the terms of the Ex.A-1 and the same is permissible in view of Sections 91 and 92 of Indian Evidence Act.? (b) Whether the rights of Durgamma which were limited under Ex.A-24 would not enlarge into absolute rights in view of Section 14(1) of the Hindu Succession Act, 1956 and whether the rights would come under the exception to Section 14 of the Hindu Succession Act i.e. under Section 14(2)? and (c) Even on the ﬁndings of the learned Senior Civil Judge that a kept mistress would not have any free existing right of maintenance against her paramour but she would be entitled to maintenance after the death of the paramour from out of his estate, the rights of Durgamma which were limited and which were not free existing during the lifetime of Sarabha Reddy would not get enlarged after the death of Sarabha Reddy as she is entitled to a right to maintenance as against his estate and 14(1) of the Hindu Succession Act would not enlarge her right of possession into absolute rights? 13. The learned counsel appearing for the appellant fairly advanced his arguments conﬁning to the interpretation of Sections 14(1) and (2) of the Act in view of the ﬁnding of fact of the lower appellate Court that the schedule properties belong to Chinna Sarabha Reddy. He placed reliance upon the decision of a learned single Judge of this Court in PRAKASH v. PUSHPA VANI [2] wherein a concubine’s right to maintenance was considered by this Court and it was held that she is entitled to maintenance from the estate of the paramour. Learned counsel, therefore, contends that the life interest created in her favour by paramour gets enlarged itself into an absolute estate under Section 14(1) of the Act in view of a pre- existing right of maintenance. The learned counsel also relied on MANGAMMA (DIED) AND ANOTHER v. M.B. SUBBARAMAPPA NAYANIMVARUAND OTHERS [3] and VADDEBOYNA TULASAMMA v. VADDEBOYINA SESHA REDDI [4]. 14. Per Contra, the learned counsel appearing for the respondents contends that the decision of the Supreme Court in TULASAMMA’s case (4 supra), has not been properly appreciated in the aforesaid decision of this Court i n PRAKASH’s case (2 supra) and he points out that the case of concubine cannot be equated to that of a window in view of the text of Sastric Hindu Law that a concubine has no right of maintenance against her paramour and therefore, supports the judgment and decree of the lower appellate Court. 15. In view of the rival contentions, the point arises for consideration is whether the judgment and decree of the lower appellate Court are sustainable? POINT: 16. We have gone through the aforesaid decisions and as has been held by the Supreme Court in TULSAMMA’s case (3 supra), acquisition by a female Hindu of any property in any capacity in view of a pre-existing right would undoubtedly fall under Section 14(1) of the Act. However, the question as to whether a concubine has a pre-existing right of maintenance against the paramour has also to be appreciated in situations where a right of such maintenance is claimed during the lifetime of the paramour or after the death of the paramour from his estate. The decision of the Supreme Court in AMMIREDDY RAJA GOPALA RAO’s case (1 supra), related to the claim of concubine from the estate of paramour, was upheld. 17. The Madras High Court in A.P.K. NARAYANASWAMI REDDIAR v. PADMANABHAN [5] held that: “….. Under Hindu Law, a concubine of Hindu will not be entitled to maintenance against the paramour during his life time ….. Apart from considerations of morals and sympathy, we are unable to say that there is a status of wifehood for such a woman intermediate between a legitimate wife, and a concubine. There is no textual authority or statutory authority to be found for such a proposition; nor do we feel justiﬁed that we can recognize such a status, especially when the policy of law is to declare a bigamous marriage as void, and, in fact, constitute it as a crime, which is liable to be punished.” 18. A learned single Judge of this Court, however, in PRAKASH’s case (2 supra) came to the conclusion that under the Sastric Hindu Law, a concubine has a pre-existing right of maintenance against her paramour and consequently, applied Section 14(1) of the Act and held that her limited right to maintenance gets enlarged. It was further held that: “Under Section 14 of the Act, the word used is ‘Hindu Female’ but not ‘Hindu Widow’ as used in Hindu Women’s Right to Property Act. Under the Explanation to this Section, any female Hindu, who acquired or possessed any property either before or after the commencement of the Act is entitled to exercise the full ownership rights over the property and not as a limited owner. From the above explanation, it is made clear that any property acquired by a female Hindu in lieu of maintenance, apart from other forms of acquisition of property gets enlarged as an absolute estate. Even if the property is given to a Hindu Female, in view of her pre-existing right even after the Act came into force, it becomes absolute property notwithstanding the limits or restrictions contained in the instrument.” 19. I n MANGAMMA’s case (3 supra), a Division Bench of this Court held: “The right of mistress to remain in possession of other portion of the house was integral with her right to claim life estate which was granted in recognition of her pre-existing right as the permanent kept mistress. Such a right acquired by the mistress to be in possession of the other portion falls within the ambit of Sub-section (1) of Section 14 of the Act and outside the purview of the exclusionary provision contained in sub-section (2) of S.14. Merely because the compromise decree prescribed a restricted estate as regards the other portion there is no warrant to conclude that the other portion of the property falls within the ambit of sub-section (2). The right ﬂowing from compromise decree in favour of the mistress was not conferred for the ﬁrst time nor was it without any pre-existing right. The compromise decree incorporates the pre-existing right of maintenance as the permanent kept mistress of late Hindu male sub-section (2) of Section 14 of the Act is therefore not attracted. As the mistress acquired the right to be in possession of the portion given as life estate and the other portion of the house before the commencement of the Act, her right as a limited owner has enlarged into an absolute one under sub-section (1) of Section 14 of the Act.” 20. In the factual background of the above settled legal position, it is pertinent to note the evidence on record. Admittedly Smt. Durgamma was the kept mistress of Chinna Sarabha Reddy. The recitals in Ex.A-24 gift deed clearly read that late Chinna Sarabha Reddy gifted an extent of Ac.1-02 cents in favour of Durgamma towards her maintenance. It is clearly recited in unequivocal terms that Chinna Sarabha Reddy stated that Durgamma was under his care and protection and that he was leading marital life with her for the last so many years and he though it ﬁt to put some properties in her name towards her maintenance. DW-1 himself admitted in the chief examination that Durgamma lived with Chinna Sarabha Reddy as his mistress since the date of her discretion. It is also an admitted fact that she was unmarried. It is also an admitted fact that late Chinna Sarabha Reddy was village munsiﬀ and also the Sarpanch of the village. In view of the recitals in Ex.A-24, gift deed, and the evidence of DW-1, it can be said without slightest doubt that Smt. Durgamma was the exclusive kept mistress of the Chinna Sarabha Reddy. It is also admitted fact that Chinna Sarava Reddy pre-deceased Durgamma. There is no dispute regarding Ex.A-24, gift deed, dated 02- 04-1945. Therefore, the recitals in Ex.A-24 should be construed as true, valid and binding on the executant Chinna Sarabha Reddy. When the property under Ex.A-24 was given in lieu of the maintenance in favour of his kept mistress Durgamma by Sarabha Reddy for her life maintenance, her rights will be enlarged during her lifetime even after the death of Sarabha Reddy since he pre- deceased Durgamma. 21. Since the determination of the question in these appeals turns on the true interpretation to be placed on sub-section (2) read in the contest of sub-section (1) of Section 14 of the Act, it would be convenient at this stage to set out both the sub-sections of Section 14 which read as follows: “14(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 of 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.” 22. Section 14(1) clearly reads that any property possessed by a Hindu female shall be held by her as full owner thereof and not as a limited owner. Therefore, the Hindu woman’s pre-existing right of maintenance gets enlarged into an absolute estate. In view of the aforesaid settled legal proposition, as Durgamma was gifted the property in lieu of her maintenance through Ex.A-24, gift deed, her limited rights under the said document gets enlarged as an absolute estate in view of her pre-existing right when the Act came into force. 23. In the present case on hand and while taking into consideration the evidence on record, in particular the recitals in Ex.A-24 executed by the paramour of Durgamma i.e., Chinna Sarabha Reddy, she was the kept mistress all through during the lifetime. It is also an admitted fact that Durgamma was unmarried and she remained with Chinna Sarabha Reddy and lead conjugal life. With that aﬀection and relationship, Sarabha Reddy gifted the property in favour of Durgamma under Ex.A-24 gift deed. In the aforesaid circumstances, it cannot be termed that Durgamma is with any word other than concubine, more or less an exclusive kept mistress. Durgamma, alleged to be the concubine of Sarabha Reddy, has a pre-existing right of maintenance from her paramour. A curse reading of Section 14 of the Act, there is no word concubine or kept mistress, but it clearly reads that any female Hindu. According to Section 14(1) of the Act, if any female Hindu has a pre- existing right of maintenance on the date of the said Act, such limited right of maintenance during the lifetime gets enlarged into an absolute estate. 24. Therefore, in the aforesaid circumstances, we hold that a concubine has a pre-existing right of maintenance from her paramour or after him, from his estate, and the grant of such limited right of maintenance by the paramour to her during lifetime of paramour, gets enlarged into an absolute estate under Section 14(1) of the Act. The trial Court rightly decreed the suits, however, the lower appellate Court, on an erroneous view of the matter, held that the issue in controversy is based under Section 14(2), but not under Section 14(1) of the Act. Accordingly, Durgamma acquired title in respect of the agricultural land of Ac.1-02 cents in O.S.No.218 of 1995. 25. Insofar as the house property in O.S.No.11 of 1985 is concerned, the trial Court framed an issue whether the plaintiﬀs and their predecessors in interest have title in the suit property. 26. It is the contention of the plaintiﬀs that the suit schedule property i.e., two houses belonged to late Durgamma as she purchased the sites with her own funds under a registered sale deed dated 12-08-1937 and another oral sale and constructed the houses in the said sites and continued to live therein. It is not disputed that late Durgamma was kept mistress of late Chinna Sarabha Reddy. It is the contention of the defendants that Sarabha Reddy purchased the said sites in the name of Durgamma and constructed houses therein and kept Durgamma in those houses and she was in exclusive possession and enjoyment of the same. It is the contention of the defendants that Chinna Sarabha Reddy gave the houses along with suit schedule property in O.S.No.218 of 1985 under a registered gift deed dated 02-04-1945 with limited rights for her maintenance. But as per Ex.A-1, it is in favour of Durgamma. It is also admitted by DW-1 in his cross-examination that the sale transaction of the sites took place in the house of Durgamma where she originally resided, but not at the place of suit site. The plaintiﬀs examined PWs.1 to 5 and ﬁled voluminous documentary evidence including house tax receipts. In view of the clear admission of DWs.1 and 2 that Durgamma used to reside in the suit schedule houses during the lifetime and also having regard to the facts and circumstances, it is clear that Durgamma was having pre-existing right prior to the commencement of the Act and therefore, whether the house property belongs to Durgamma or it was gifted by Chinna Sarabha Reddy makes no diﬀerence in view of Section 14(1) of the Act as admittedly she was having possession and pre-existing right as on the date of the Act came into force. 27. Therefore, in any view of the matter, Durgamma acquired title in the suit schedule property as absolute owner and also perfected the title by adverse possession. Therefore, the plaintiﬀs, who ﬁled the suit claiming rights through Durgamma, have satisfactorily discharged their burden in proving the same. Accordingly, the judgment and decree of the lower appellate Court reversing the ﬁndings of the trial Court on that score are erroneous and contrary to law and thereby not sustainable. 28. In the result, both the Second Appeals are allowed. The judgment and decree of the lower appellate Court in A.S.Nos.17 and 18 of 1994 are set aside and consequently, the judgment and decree of the trial Court in O.S.Nos.11 and 218 of 1985 shall stand conﬁrmed. No order as to costs. _______________ V. ESWARAIAH, J _______________ K.S. APPA RAO, J Date:29-11-2011 Note: L.R. copy to be marked. YCR [1] AIR 1965 SC 1970 [2] 2004 (4) ALT 286 [3] AIR 1994 AP 147 [4] AIR 1977 SC 1944 [5] AIR 1966 MADRAS 394