1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.318 OF 1999 Mahadeo Maruti Mali, age: 54 years, Occ: Agriculture, R/o Kashegaon, Tq. and District Osmanabad. Appellant Versus 1 Narsing Dhondiba Shinde, age: 58 years, Occ: Agriculture, R/o Kashegaon, Tq. and District Osmanabad. 2 Gunda Mahadeo Mali, age: 68 years, Occ: Agriculture, R/o Kashegaon, Tq. and District Osmanabad. 3 Kondabai Govind Mali, age: 78 years, Occ: Agriculture, R/o Solapur, District Solapur. Respondents Mr.K.K.Kulkarni, advocate holding for Mr.Rahul P. Dhase, advocate for the appellant. Mr.P.G.Mahalankar, advocate holding for Mr.S.A.Wakure, advocate for Respondent No.1. CORAM: R.M.BORDE, J. DATE : 08th October, 2009. P.C.: 1 This is an appeal by original plaintiff raising exception to the concurrent judgments delivered by the Courts below. 2 Plaintiff instituted suit claiming avoidance of sale effected by 2 defendant no.3 in favour of other defendants, declaration in respect of ownership, and decree for perpetual injunction and possession of suit property. According to plaintiff, Govind, Sambhu and Maruti were brothers and they constitute Hindu joint family. Out of them, Maruti, being karta of the family, possessed the ancestral property. He was unmarried. Defendant No.3 Kondabai was wife of another brother Govind. Plaintiff is grandson of third brother Sambhu. Govind died in the year 1952 issueless, whereas Maruti, who was unmarried, also died somewhere in 1954-55. According to plaintiff, he was adopted in 1953 by Maruti. Plaintiff contends that there was an agreement between him and wife of Govind, defendant no.3 Kondabai, whereby plaintiff agreed to maintain her and in lieu thereof, she relinquished her share in the suit property. It is further contended that consolidation scheme was implemented in the year 1973-74 and plaintiff was found in possession of suit property after consolidation. At some point, defendant no.3 Kondabai agreed to sale suit land in favour of defendant no.1 and subsequently executed sale deed in the year 1977. According to plaintiff, defendant no.3 Kondabai had no entitlement to alienate the property in favour of other defendants. It is the contention of plaintiff that defendant no.3 Kondabai was the limited owner of the property and after demise of her husband, who died in the year 1952, she had only entitlement in respect of her maintenance. According to plaintiff, by operation of law, the property devolved on Maruti and plaintiff, being successor of Maruti, is entitled to claim the property. The sale deed executed by defendant no.3 Kondabai is illegal as she had no entitlement in respect of suit property. 3 Defendants appeared, filed their written statement and controverted the contentions raised by plaintiff. 4 The trial Court, after appreciating the evidence on record, came to the conclusion that defendant no.3 Kondabai was possessed of the property 3 left behind by her husband and she had entitlement to alienate the property. The trial Court, thus, dismissed the suit by judgment and decree passed on 12.01.1989. The judgment and decree passed by the trial Court was subject matter of challenge at the instance of original plaintiff in Regular Civil Appeal No. 78 of 1989, which came to be dismissed by the first appellate Court on 01.08.1998. 5 I have perused the judgments delivered by the Courts below and heard arguments advanced by learned Counsel appearing for respective parties. 6 Learned Counsel appearing for the appellant has vehemently contended that defendant no.3 Kondabai had no entitlement in respect of suit property as her husband died in 1952 before coming into force of Hindu Succession Act or even applicability of Hindu Women's (Right to Property) Act, 1936 to Hyderabad region. According to him, therefore, by operation of law the property devolved on Maruti and plaintiff, being successor of deceased Maruti, is entitled to claim the property and further defendant no.3 Kondabai has no right in respect of suit property. It is also contended that defendant no.3 has not contested the suit and has not proved her entitlement and as such, the Courts below ought to have decreed the suit. 7 Plaintiff himself has come to the Court contending that he has entered into agreement with Kondabai and accepted the liability to maintain her. The trial Court has held that the alleged agreement is not valid, as, at that time, age of plaintiff was 7 to 10 years, however, it cannot be disputed that husband of defendant no.3 had entitlement to the property, being member of joint family and on his demise, defendant no.3 Kondabai had right to be maintained out of the property. The right available to Kondabai to receive maintenance has been even accepted by the plaintiff as plaintiff himself has 4 come with the contention that he had agreed to maintain Kondabai. The right of maintenance of Kondabai, out of the property left behind by her husband, is crystalised and matured into full ownership after coming into force provisions of Hindu Succession Act. The Supreme Court has interpreted the word "possessed" and has applied a wider meaning. What is required to be seen is the entitlement to be maintained out of the joint family property. It doesn't matter, whether the widow herself is in physical possession or the property is being cultivated by any other member of the family. What is required to be seen is her preexisting right to receive maintenance out of the property. It is worthwhile to note the observations made by the Apex Court in the matter of V. Tulasamma Vs. V.Sesha Reddi, reported in AIR 1977 SC 1944. “We would now like to summarise the legal conclusions which we have reached after an exhaustive considerations of the authorities mentioned above on the question of law involved in this appeal as to the interpretation of section 14(1) and (2) of the Act of 1956. These conclusions may be stated thus: (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 recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such 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 recognising such a right does not confer any new 5 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 applies 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 recognise 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’s 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 will have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or 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 6 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 could 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 ranked 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.” 8 “In yet another case of the Apex Court in the case of Raghubir Singh and others Vs. Gulab Singh and others, AIR 1998 SC 2401, the Apex Court observed in para Nos.22, 23, 24 and 25 thereof as under: “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 as “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 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. It is by force of section 14(1) of the Act, that the widow’s limited interest gets automatically enlarged into an absolute right notwithstanding any 7 restriction placed under the document or the instrument. So far as sub-section (2) of Section 14 is concerned, it applies to instruments, decrees, awards, gifts etc., which create an independent or a new title in favour of the female for the first time. It has no application to cases where the instrument/document either declares or recognises or confirms her share in the property or her “pre- existing right to maintenance” out of that property. As held in Tulsamma’s case (supra), 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) of the Act.” 9 In yet another matter, while dealing with similar set of facts, the Apex Court has ruled that the settlement deed arrived at because of intervention of the Panchayat, thereby affirming pre-existing right to receive maintenance out of the property has an effect of transforming the limited ownership into full ownership by virtue of provisions of Section 14(1) of the Act. It is observed by the Apex Court, in the matter of V. Muthusami (dead) by L.Rs. Vs. Angammal and others, reported in AIR 2002 SC 1279, that: “Hindu female has right of maintenance against properties of her husband. Where father-in-law of widow received property of her deceased-husband and subsequently made settlement deed providing for maintenance to her, it could be said that settlement deed recognised her pre-existing right of maintenance against properties of her husband. Therefore, S.14(2) would be inapplicable to her case. But S.14(1) would cover her case. Plea that she claimed maintenance over the properties of her father-in-law is not tenable as she claimed maintenance as of right against the property i.e. jus-ad- rem left behind by her deceased-husband. The right of maintenance could be enforced by widow against the estate of her husband in the hands of her father-in-law, though she was not in actual physical possession of the land, she was in legal possession as she never parted with the right of her maintenance and she could enforce such right in law. Therefore the finding of the High Court that by settlement deed a contractual right was given to her as 8 the deed was executed in view of the settlement arrived at the intervention of the Panchayat is erroneous as Panchayat only helped the parties to come to a settlement in recognition of her right to be maintained from the properties of her husband, therefore after coming into force of the Act she became full owner over the suit land and as a full owner she had power to execute the agreement for sale in favour of the plaintiff. Therefore, plaintiff could enforce this agreement of sale, which he did by filing the present suit. Therefore, dismissal of said suit by the Courts below on the ground of want of her title would be improper.” 10 Considering these aspects, I am of the view that defendant no.3 Kondabai had entitlement to the property and her right in the property is transformed into full ownership after coming into force Hindu Succession Act and that she had legal entitlement to alienate the property. Appeal does not raise any substantial question of law. 11 Appeal, therefore, stands dismissed. (R.M.BORDE) JUDGE ******* adb/sa31899