IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 443 of 1999. Date of decision: 12.05.2011. Lekh Ram. ….Appellant. Versus Sunder Ram & Ors. ….Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? Yes For the Appellant : Mr. Ramakant Sharma, Advocate. For the Respondents : Mr. Dhruv Shaunak, Advocate, No.1 to 3. vice Ms. Ruma Kaushik,Advocate. Kuldip Singh, Judge ( Oral). This appeal has been directed against judgment, decree dated 18.08.1999 passed by learned District Judge, Bilaspur, in Civil Appeal No. 27 of 1990, affirming judgment, decree dated 09.04.1990 passed by learned Senior Sub Judge, Bilaspur , in case No. 39/1 of 1988. 2. The facts, in brief, are that Smt. Hardei predecessor-in- interest of respondents 1 to 3 had filed a suit for declaration, permanent prohibitory injunction and in the alternative for possession against appellant, respondent No.4 etc. regarding the land, more particularly, detailed in the plaint. It was pleaded that previously the land was owned by Sansaru respondent No.4. Smt. Lachhmi mother of Smt. Hardei married with Sansaru and from his loins Smt. Hardei was born. On 15.12.1975, Sansaru sold land measuring 10 bighas 2 by way of a registered sale deed in favour of Sukh Ram etc. and mutation to this effect was sanctioned on 22.06.1977. Sansaru again sold 3 bighas 6 biswas of land vide registered sale deed dated 09.01.1976 in favour of Kutabdin. He executed a registered gift deed in favour of appellant regarding land measuring 34 bighas 2 biswas described in the plaint which is the suit land. 3. Smt. Hardei filed a suit claiming that she was owner in joint possession of land measuring 11 bighas 17 biswas in the suit land. Sansaru was owner in joint possession to the extent of 22 bighas 5 biswas in the suit land. She challenged the gift on the ground that her mother ( Smt. Lachhmi) was the legally wedded wife of Sansaru. Smt. Lachhmi had filed a maintenance application against Sansaru which was compromised before the ‘Nayaya Panchayat’. Sansaru parted with the possession of the suit land along with a ‘Katcha’ house consisting of two rooms in lieu of pre-existing right of maintenance of Smt. Lachhmi. Smt. Lachhmi died on 24.01.1977 after acquiring full ownership on the suit land. It has been alleged that after the death of Smt. Lachhmi, Smt. Hardei became owner in possession of the suit land to the extent of share of Smt. Lachhmi. 4. It has been alleged that possession, if any, of Sansaru on part of the suit land was only that of a licensee and, therefore, Smt. Hardei filed suit for declaration that she was owner in joint possession of the suit land measuring 11 bighas 17 biswas out of land measuring 34 bighas 2 biswas. She also prayed consequential relief of injunction. 3 5. The suit was contested by appellant. He took preliminary objections of non-joinder, limitation, maintainability, resjudicata, cause of action. He denied that Smt. Hardei was born to Smt. Lachhmi Devi from the loins of Sansaru, rather, he took the stand that no land was given to Smt. Lachhmi in compromise by Sansaru. He projected the case that he is owner in possession of the suit land. Smt. Hardei earlier filed a suit which was withdrawn. The replication was filed in which defence of the appellant was controverted and case projected in the plaint was reiterated. On the pleadings of the parties, the following issues were framed:- 1. Whether the suit is bad for non-joinder of necessary parties as alleged? …OPD. 2. Whether the plaintiff is barred from instituting the present suit by his own act and conduct as alleged? …OPD. 3. Whether the plaintiff has no locus standi to file the instant suit as alleged? …OPD. 4. Whether the suit in its present form is not maintainable? .OPD. 5. Whether the suit is barred by the principles of resjudicata? …OPD. 6. Whether the plaintiff has no cause of action to sue?...OPD. 7. Whether the suit is within time? …OPP. 8. Whether the plaintiff is in joint possession as owner of the suit land as alleged? …OPP. 4 9. Whether the defendants are interfering in the suit land as alleged? …OPP. 10. Relief. 6 The issue No.1 was decided against the appellant. Issues 2 to 6 in negative, issues 7 to 9 were also decided in favour of the plaintiff. The learned Senior Sub Judge vide judgment dated 09.04.1990 gave the declaration that Smt. Hardei was owner in joint possession with appellant on land measuring 5 bighas 18 biswas out of 34 bighas 2 biswas of the suit land which was gifted by respondent No.4 to appellant. The remaining claim of Smt. Hardei was rejected. Appellant filed Civil Appeal No. 27 of 1990 and Smt. Hardei filed Civil Appeal No. 44 of 1990 against judgment, decree dated 09.04.1990. Both the appeals were dismissed by learned District Judge on 18.08.1999. Lekh Ram appellant has assailed judgment, decree dated 18.08.1999 in Civil Appeal No. 27 of 1990 which has been admitted on following substantial questions of law:- 1. Whether the construction placed by the Courts below on the relative scope of Sections 14(1) and 14(2) of the Hindu Succession Act is correct and the Courts below were right in applying the provisions of Section 14(1) of the Act on the case on hand? 2. Whether the judgment and decree under challenge is the result of non-consideration of documents Ex. R-22, R-23 and R-25? 3. Whether the trial Court was right in holding that the suit is within limitation and the plaintiff has got cause of action especially when Smt. Lachhmi, the mother of Smt. 5 Hardei died on 24.1.1977 and the suit was filed on 31.5.1988? 4. Whether the judgment and decree is the result of non- consideration of oral as well as documentary evidence by the lower appellate Court? 5. Whether the lower Appellate Court is right in not considering the documents Ex. DW2/A the gift deed dated 5.3.1982 executed in favour of the appellant and the fact that the suit having filed on 31.5.1988 was barred by limitation on the face of it? 7. I have heard learned counsel for the parties and have also gone through the record. It has been submitted by the learned counsel for the appellant that two Courts below have not properly appreciated legal position with respect to interpretation of Section 14 (1) (2) of the Hindu Succession Act, 1956 ( in short ‘Act’). The land in dispute was allegedly given to Smt. Lachhmi by way of compromise Ex. R-23 which merged in the order dated 08.03.1961 Ex. R-22. In Ex. R-22 and Ext. R-23, it has been provided that after the death of Smt. Lachhmi the property would revert back to respondent No.4. In these circumstances, the Courts below have erred in returning the finding that after the death of Smt. Lachhmi, her daughter Smt. Hardei is entitled to land measuring 5 bighas 18 biswas. Smt. Lachhmi died on 24.01.1977, whereas, the suit was filed on 31.05.1988 and, therefore, the suit was time barred. Per contra, the learned counsel appearing on behalf of the respondents 1 to 3 has submitted that the two Courts below have concurrently held that Smt. Lachhmi had pre- existing right of maintenance which has been recognized in the 6 compromise Ex. R-23 and order dated 08.03.1961 Ex. R-22 of ‘Nayaya Panchayat’. In view of the Act, the limited right of Smt. Lachhmi in the suit land had converted into full ownership right and after the death of Smt. Lachhmi, Smt. Hardei had rightly succeeded her. The respondent No.4 had no right to execute gift deed dated 05.03.1982 in favour of the appellant regarding share of Smt. Lachhmi in the land in dispute which , later on, was inherited by Smt. Hardei. 8. The substantial questions of law No.1, 2 and 4 can be conveniently considered in one group, therefore, these substantial questions of law are taken up together for determination. It has been proved on record that Smt. Lachhmi Devi married to respondent No.4 and from the loins of respondent No.4, Smt. Hardei was born to Smt. Lachhmi Devi. Smt. Lachhmi Devi had filed a maintenance petition before the ‘Nayaya Panchayat’ against respondent No.4 which was compromised vide Ex. R-23 and on the basis of compromise ‘Nayaya Panchayat’ passed the order Annexure R-22 dated 08.03.1961. The perusal of compromise Ext. R-23 indicates that the pre-existing right of maintenance of Smt. Lachhmi was recognized in the compromise and then on the basis of Ex. R-23 order dated 08.03.1961 Ex. R-22 was passed. No doubt, in compromise and order dated 08.03.1961, it has been recorded that after the death of Smt. Lachhmi, the land in question would go back to respondent No.4. But, this condition recorded in the compromise and order dated 08.03.1961 is of no consequence as far as the right of Smt. Lachhmi is concerned inasmuch as Smt. Lachhmi immediately after execution of 7 compromise and order dated 08.03.1961 became absolute owner of the property under Section 14(1) of the Act. 9. The Supreme Court in Vaddeboyina Tulasamma and others vs. Vaddeboyina Sesha Reddi (dead) by L.R.s, AIR 1977 SC 1944’ has summarized the conclusion as to the interpretation of Section 14(1) and (2) of the Hindu Succession Act, 1956, as follows:- “70. 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 S. 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 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 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 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 S. 14 is in the nature of a proviso and has a field of its own without interfering with the operation of S. 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 S. 14 (1) or in a way so as to 8 become totally inconsistent with the main provision. (4) Sub-section (2) of S. 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 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 famale’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 would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-s. (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 S. 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. 9 (7) That the words ‘restricted estate’ used in S. 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.” 10. In Raghubar Singh and Others vs. Gulab Singh and Others, (1998) 6 Supreme Court Cases 314, the Supreme Court has held as follows:- “24. 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 recognized 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.” The Supreme Court continued:- “26. 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 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 Tulasamma case 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.” 11. In Smt. Beni Bai versus Raghubir Prasad, 1999 (1) S.L.J. 958, the Supreme Court has held that:- “……sub-section (1) of Section 14 applies to the cases where the conferment of right to a Hindu widow was in lieu of maintenance or in recognition of her pre-existing right as provided under the ‘Shastric’ law and Hindu Women’s Rights to Property Act. Sub-section (2) of Section 14 of the Act would apply only to such cases where grant conferred a fresh right or title for the first 10 time and while conferring the said right certain restrictions were placed by the grant or transfer.” 12. In the present case, it has been established on record that the right was not created by virtue of compromise or by order dated 08.03.1961 for the first time in favour of Smt. Lachhmi, rather, pre-existing right of maintenance of Smt. Lachhmi was recognized by way of compromise and order dated 08.03.1961. 13. The relevancy of Ex. P-25 has not been elaborated by either side on the right of Smt. Lachhmi over the suit land. In these circumstances, the limited right of Smt. Lachhmi vide compromise and order dated 08.03.1961 would become her absolute right under Section 14(1) of the Act and no fault can be found with this view which has been taken by two Courts below. The respondent No. 4 had no right to execute gift deed dated 05.03.1982 in favour of appellant regarding the share of Smt. Lachhmi in the suit land which was, later on, inherited by Smt. Hardei. It appears that inadvertently Ex. DW2/A has been put on the file of Trial Court on application under Order 33 Rule 1 in file No. 1/7 of 1984 tiled as ‘Sansaru versus Lekh Ram. Exhibit DW2/A should have been on gift deed dated 05.03.1982. In the statement of DW2 Harbans gift deed Ex. DW2/A has come on record. Therefore, gift dated 05.03.1982 is considered as Ex. DW2/A for purpose of this judgment. In these circumstances, substantial questions of law No. 1,2 and 4 are decided against the appellant. 14. The suit was filed on 31.5.1988 and is based upon title. The plaintiff Smt. Hardei has proved her title on the suit land to the extent the relief has been granted by the two Courts below in her favour. It was not necessary for her to seek declaration for setting 11 aside gift inasmuch as the claim of Smt. Hardei in the suit is that she was owner in joint possession of the suit land and gift deed dated 05.03.1982 was not binding on her as respondent No.4 had no right, title or interest to execute this gift deed in favour of appellant. Smt. Lachhmi died on 24.01.1977 whereas suit has been filed on 31.05.1988 and, therefore, the suit is within limitation. In these circumstances, the substantial questions of law No. 3 and 5 are also decided against the appellant. 15. In view of above, there is no merit in the appeal and the same is dismissed with no order as to costs. May 12, 2011. (Kuldip Singh), ( krt) Judge.