IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.440 of 1998 Date of decision: 18.11.2010 Smt. Bhago ….. Appellant. Vs. Hardeep Kumar and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate. For the Respondents : Mr. Ramakant Sharma, Advocate with Mr. Malay Kaushal, Advocate, for proposed LRs of respondent No.1 and for respondents No.2 to 5 and 8. Mr. Dinesh Bhanot, Advocate, for the proposed LRs of respondent No.7 ______________________________________________________ Kuldip Singh, J(Oral) The plaintiff has come in appeal against judgment, decree dated 24.7.1998 passed by learned District Judge, Solan Camp Court at Nalagarh in Civil Appeal No.24-NL/13 of 1997 reversing judgment, decree dated 11.4.1997 passed by learned Sub Judge Ist Class, Nalagarh in Civil Suit No.110/1 of 91, partly decreed the suit of appellant declaring her to be the owner of the Whether the reporters of the local papers may be allowed to see the Judgment? …2… property and passing a decree of possession in her favour on the land more specifically detailed in the judgment dated 11.4.1997. 2. The brief facts of the case are that appellant had filed a suit for declaration with consequential relief of injunction and in the alternative for possession. The pedigree table of the parties is a follows:- _____Charnu _________ I I I I Mast Ram Rullia I I I I Munshi ----Smt. Rodi Sita Ram (dead) (widow) I (defendant No.l I since dead) Diwan Chand-----Smt.Bhago (widow) (plaintiff) Ganga Ram I I Munshi -------Smt. Rodi I (widow) I (defendant No.1 since dead) Rattan Singh (defendant No.2) 3. The further case of the appellant is that land measuring 29 bighas 15 biswas vide jamabandi for the year 1985- 86 situate in village Manpura was initially owned and possessed by one Munshi son of Mast Ram who was married to Smt.Rodi original defendant No.1. Munshi son of Masat Ram died after one year of his marriage and thereafter Smt. Rodi married with one Munshi son of Ganga Ram and gave birth to Rattan Singh defendant No.2. It has also been alleged that Smt. Rodi had developed illicit relations with Sita Ram son of Rulia and gave birth to Diwan Chand husband …3… of plaintiff. On the death of Munshi son of Masat Ram Smt. Rodi inherited his estate as limited owner which was forfeited on her remarriage with Munshi son of Ganga Ram and the estate of Munshi reverted to Sita Ram who was the only nearest reversioner entitled to inherit to the estate of said Munshi son of Mast Ram. It is the case of the plaintiff that on remarriage of Smt. Rodi the suit land was inherited by Sita Ram who was predecessor-in-interest of plaintiff. However, in revenue record the name of Smt.Rodi was wrongly recorded as owner of the suit land. It has been alleged that defendants have no right, title or interest on the suit land and entry recorded in the revenue record are wrong, illegal and not binding on the plaintiff. On this averment, the suit was filed. 4. The suit was contested by defendants and joint written statement was filed by defendants No.1,2,4 and 5. They have admitted that Smt. Rodi was married to Munshi son of Masat Ram and after his death she was married to Munshi son of Ganga Ram. It has been pleaded that Rattan Singh was born to Smt. Rodi from Sita Ram. On the death of Munshi son of Masat Ram, Smt. Rodi became absolute owner in possession of the estate left by Munshi son of Mast Ram. They have denied that Sita Ram became owner in possession of the suit land. It has further been alleged that defendant No.2 got the suit land from plaintiff during her life time, defendants No.4 and 5 got the suit land measuring 3 bighas 13 biswas by way of purchase and are bonafide purchaser for valuable consideration. …4… 5. The defendant No.6 had filed separate written statement and pleaded that he had purchased land measuring 6 bighas 12 biswas comprised in khasra No.1286 min vide sale deed dated 8.1.1979. He has been coming in possession of the suit land. He is bonafide purchaser for valuable consideration. 6. On the pleadings of the parties, the following issues were framed:- 1. Whether Sita Ram S/o Rullia, inherited the estate of Munshi Ram S/o Masat Ram as alleged? OPP 2. Whether Sita Ram has also inherited the estate of Munshi Ram S/o Ganga Ram? OPP 3. Whether the plaintiff is owner in possession of the suit land as alleged? OPP 4. Whether the plaintiff is entitled for the relief of declaration as claimed? OPP 5. Whether the plaintiff is entitled for relief of permanent prohibitory injunction as prayed? OPP 6. Whether there is no cause of action? OPD 1 to 5 7. Whether the suit is not maintainable? OPD 8. Whether Defendants No.4 & 5 are bonafide purchaser of the land as alleged? OPD 1 to 5 9. Whether defendant No.6 is bonafide purchaser? OPD 6 to 8 10. Relief The issues No.1,8 and 9 were answered in affirmative, issues No.2,5,6 and 6 were in negative, issues No.3 and 4 were answered partly in affirmative and the suit was partly decreed on 11.4.1997. The appeal was accepted by learned …5… District Judge on 24.7.1998 and the judgment, decree dated 11.4.1997 were set aside, hence, the second appeal which has been admitted on the following substantial questions of law:- 1. Whether due to re-marriage of Smt. Rodi with Shri Munshi son of Shri Ganga Ram, she ceased to have any interest over properties left behind by her first husband Shri Munshi son of Shri Munshi son of Shri Mast Ram? 2. Whether learned District Judge was in error in his view that her limited rights due to death of her first husband Shri Munshi son of Shri Masat Ram have been enlarged on account of provisions of Hindu Succession Act, 1956? 3. Whether the entries in revenue record in favour of defendant No.1 Smt. Rodi, have been amply rebutted and the presumption of correctness cannot be attached to the same? 4. Whether the findings recorded by learned District Judge below are vitiated due to mis-reading and mis-appreciation of pleadings of the parties and oral and documentary evidence on record? 7. I have heard learned counsel for the parties and have also gone through the record. It has been submitted on behalf of the appellant that Smt.Rodi was married to Munshi son of Mast Ram. After the death of Mast Ram, Smt.Rodi married to Munshi son of Ganga Ram prior to the year 1935 and thus in view of Section-2 of Hindu Widows’ Remarriage Act, 1856 (for short 1856 Act) which was applicable at that time Smt.Rodi forfeited her limited rights in the estate of Munshi son of Mast Ram in favour of reversioner. On coming into force of Hindu Succession Act, 1956 …6… (for short 1956 Act) Smt.Rodi was having no right title and interest in the estate left by Munshi son of Mast Ram, therefore, there is no question of full ownership of Smt. Rodi of alleged estate which come to Smt. Rodi from Munshi son of Masat Ram. The learned District Judge has misconstrued the revenue record. The learned counsel for appearing respondents have supported the impugned judgment, decree. They have submitted that Smt. Rodi was in possession of the property left by Munshi son of Masat Ram as limited owner after the death of Munshi son of Masat Ram and limited ownership of Smt. Rodi has blossomed into full ownership under Section 14 of the 1956 Act. Mr. Dinesh Bhanot, Advocate has additionally submitted that the suit filed by the appellant is time barred. 8. The substantial questions of law No.1 to 4 are interconnected; therefore, substantial questions of law No.1 to 4 are taken up collectively for disposal. The admitted facts are that Smt. Rodi was married to Munshi son of Mast Ram who died after about one year of marriage. After the death of Munshi son of Mast Ram, Smt. Rodi remarried to Munshi son of Ganga Ram. Smt. Rodi gave birth to defendant No.2 from her marriage with Munshi son of Ganga Ram. Smt. Rodi developed illicit relations with Sita Ram son of Rullia and gave birth to Diwan Chand husband of plaintiff, who has died. On the death of Munshi son of Mast Ram, Smt. Rodi inherited his estate as limited owner. The limited ownership of Smt. Rodi which came to her from Munshi son of Mast …7… Ram was to remain till she remarried. The Section-2 of 1856 Act is as follows:- “Rights of widow in deceased husband’s property to cease on her remarriage- All rights and interests which any widow may have in her deceased husband’s property by way of maintenance, or by inheritance to her husband or to his lineal successors, or by virtue of any will or testamentary disposition conferring upon her, without express permission to remarry, only a limited interest in such property, with no power of alienating the same, shall upon her remarriage cease and determine as if she had then died; and the next heirs of her deceased husband, or other persons entitled to the property on her death, shall thereupon succeed to the same.” 9. PW-1 Smt. Bhago Devi has stated that Smt. Rodi married with Munshi son of Masat Ram who died one year after the marriage. Smt.Rodi had performed Krewa with Munshi son of Ganga Ram about 60-65 years ago. The statement of DW-1 was recorded on 20.4.1995 as per order sheet of the trial Court. It means Smt. Rodi had performed marriage with Mushi son of Ganga Ram somewhere in the year 1930-35. DW-2 Rattan Singh has stated that his mother Smt. Rodi was earlier married with Munshi son of Mast Ram. Thereafter she married with his father Munshi son of Ganga Ram. Diwan is son of Sita Ram and he was also born to Smt. Rodi. Sita Ram and Smt. Rodi had no marriage. He could not say that Munshi son of Mast Ram was the owner of land in dispute. The defendants did not challenge the statement of PW-1 Smt. Bhago in cross-examination as to when Smt. Rodi married with Munshi son of Mast Ram. The defendants have led no positive evidence when Smt. Rodi married with Munshi son of …8… Ganga Ram. Thus, it can be safely concluded that Smt. Rodi after the death of Munshi son of Mast Ram, married to Munshi son of Ganga Ram somewhere in between 1930-35. In view of Section 2 of 1856 Act Smt. Rodi had forfeited her limited ownership rights in the land which she inherited from Munshi son of Mast Ram in favour of reversioner(s). In other words on or after the year 1935 Smt. Rodi had no right, title and interest in the property left by Munshi son of Mast Ram. 10. The sub section (1) of Section 14 of 1956 Act is 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 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.” 11. the learned counsel for respondents have submitted that Smt. Rodi remained in possession of the property left by Munshi son of Masat Ram, therefore, on coming into force of 1956 Act, Smt. Rodi became full owner of the property left by Munshi son of Mast Ram which was in possession of Smt. Rodi. The learned counsel for the respondents have relied Gangamma and …9… others vs. G. Nagarathnamma and others (2009) 15 SCC 756 and have relied paragraph-12 of the report which is as follows:- “In Seth Badri Prasad v. Kanso Devi the learned Judges held that the word “acquired” in sub- section (1) of Section 14 of the said Act has to be given the widest possible meaning( see paras 6 and 7) . In V.Tulasamma v. Sesha Reddy Bhagwati, J. speaking for the Court held that sub-section (1) of Section 14 is very large in its amplitude and covers every kind of acquisition of property by a female Hindu. Regardless of whether such property was possessed by a female Hindu on the date of commencement of the Act or was subsequently acquired or possessed, she would be the full owner of the property.” 12. The Section 14 refers to expressions “acquired” and “possession”. The explanation to sub- section (1) of Section 14 further provides that in the sub-section “property” includes both movable and immovable property acquired by a female Hindu by inheritance etc. The “possession” of a female must be of property acquired by inheritance etc. V.Tulasamma and others v. Sesha Reddy (dead) (1977) 3 SCC 99 is a judgment of three judges. In paragraph 62 of the judgment of Hon’ble Justice S.Murtaza Fazal Ali, the conclusions with respect to interpretation of Section 14(1) and (2) of the Act, 1956 have been stated as follows:- 1) The Hindu female’s right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognized and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such …10… a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre- existing right so that any transfer declaring or recognizing such a right does not confer any new title but merely endorses or confirms the pre-existing rights. 2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends sought to be achieved by this long needed legislation. 3) Sub-section (2) of Section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of Section 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by Section 14(1) or in a way so as to become totally inconsistent with the main provision. 4) Sub-section (2) of Section 14 applied to instruments, decrees, awards, gifts, etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognize pre-existing rights. In such cases a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the female’ limited interest would automatically be enlarged into an absolute one by force of Section 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in …11… 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 14(1) despite any restrictions placed on the powers of the transferee. 5) The use of express terms like “property acquired by a female Hindu at a partition”, “or in lieu of maintenance” , “or arrears of maintenance”, etc. in the Explanation to Section 14(1) clearly makes sub-section (2) inapplicable to these categories which have been expressly excepted from the operation of sub- section(2). 6) The words “possessed by” used by the Legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title. 7) That the words “restricted estate” used in Section 14(2) are wider than limited interest as indicated in Section 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee. Hon’ble Justice P.N. Bhagwati writing judgment for himself and for Hon’ble Justice A.C. Gupta has observed that “we have had the advantage of reading the judgment prepared by Hon’ble Justice S.Murtaza Fazal Ali and we agree with the conclusion reached by him in that judgment but we would prefer to give our own reasons.” In aforesaid conclusion (6) it has been …12… clearly stated that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title. On remarriage of Smt. Rodi with Munshi son of Ganga Ram around the year 1935, she forfeited her limited ownership in the property inherited by her from Munshi son of Mast Ram, her husband, in view of Section 2 of the 1856 Act. Smt. Rodi had no right, title or interest in the property left by Munshi son of Mast Ram on her remarriage with Munshi son of Ganga Ram, therefore, so called limited estate of Smt. Rodi could not have been enlarged after coming into force of 1956 Act. The contention of Mr. Dinesh Bhanot, Advocate regarding the suit is barred by limitation is rejected on the ground that the appeal has been admitted only on above referred substantial questions of law. There was no issue of limitation. The substantial questions of law No.1 to 4 are decided in favour of the appellant 13. No other point was urged. 14. The result of the above discussion, the appeal is allowed, judgment decree dated 24.7.1998 passed by learned District Judge, Solan Camp Court at Nalagarh in Civil Appeal No.24-NL/13 of 1997 are set aside, judgment, decree dated 11.4.1997 passed by the trial Court are restored with no order as to costs. November 18, 2010 ( Kuldip Singh (sks) Judge. …13…