1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 33 OF 1989 (BOMBAY: SECOND APPEAL NO.498 OF 1984) 1 Shankar Kisan Pangavhane, age: 33 years, Occ: Agriculture, R/o Pohegaon. 2 Bansi Kisan Pangavhane, age: 28 years, Occ: Agriculture, R/o Pohegaon, Dist.Ahmednagar. 3 Bhambai Kishan Pangavhane, age: 66 years, Occ: Household, R/o Chincholigurav, Taluka Sangamner, Dist.Ahmednagar. 4 Babubai Shrimant Sonawane, age: 46 years, R/o Kopergaon, District Ahmednagar. 5 Jigabai Popat Shinde, age: 46 years, R/o Kopargaon, Dist. Ahmednagar. 6 Narmadabai Ghangde Kale, age: 40 years, R/o Mahegaon, Thadi, Taluka Kopargaon, Dist.Ahmednagar. 7 Gangubai Thakunkhond, age: about 36 years, R/o Mahegaon, Deshmukh, Taluka Kopergaon, District Ahmednagar. Appellants Versus 1 Venubai Amrita Rohomare, deceased, through her L.Rs.: 1A Anna Amruta Rohmare, 2 age: 74 years, Occ: Agri., 1B Jagannath Amruta Rohmare, age: 70 years, Occ: Agri., 1C Chandrabhan Amruta Rohmare, age: 67 years, Occ: Agri., All R/o Pohegaon, Tq. Kopargaon, District Ahmednagar. 2 Bhagu Baburao Kale, age: 61 years, R/o Mahegaon-Deshmukh, Taluka Kopergaon, Dist.Ahmednagar. 3 Parvatibai Baburao Kale, age: 67 years, R/o Mahegaon Deshmukh, Tal. Kopergaon, Dist.Ahmednagar. Respondents Mr.R.N.Dhorde, advocate for appellants. Mr.S.D.Kulkarni, advocate For Respondent No.1. Respondents No.2 & 3 served. CORAM: R.M.BORDE, J. DATE : 19 th December, 2008 JUDGMENT: 1 This is an appeal by original defendants no.1, 2, 6 to 9, raising challenge to the concurrent judgments recorded by the Courts below. 2 Respondent No.1 – original plaintiff instituted Regular Civil Suit No.736 of 1975 claiming declaration of ownership and recovery of possession of the suit property. Plaintiff also sought a direction in respect of deletion of names of defendants no.1 and 2 from revenue record; and declaratory relief in respect of payment of rent amount by defendants no.3 and 4 to the plaintiff is also sought for. Plaintiff, in the alternative, has prayed for a declaration to the effect that she is entitled for ½ share out of the suit property and on effecting partition, such share be delivered in her possession. Plaintiff has also sought relief in respect of determination of 3 mesne profits. 3 The case put up by the plaintiff can be summarised in nutshell, as below: Original owner of the disputed lands was one Laxman. He died some where in 1909 survived by his wife Deubai. Deubai has a daughter by name Venubai i. e. the plaintiff. On 18.12.1915, Deubai adopted Kishan i. e. father of defendants no.1 and 2 and husband of defendant no.5, and also transferred all the properties in favour of Kishan, by virtue of said adoption deed. On 07.10.1943, Deubai executed a gift deed in favour of Venubai. Said gift deed was challenged by Kishan in R.C.S. No.350/1951. He sought a declaration to the effect that the gift deed executed by Deubai does not bind his right, title and entitlement. Suit filed by Kishan, father of defendants no.1 and 2, was decreed and gift deed was held to be operative during life time of Deubai and it was further held that said gift deed will not bind right, title and entitlement of Kishan. Decree in the suit was passed on 11.07.1952. After coming into force Hindu Succession Act, Deubai executed a will deed in favour of Venubai (plaintiff) on 06.01.1958, thereby bequeathing all the properties in her favour. Deubai expired on 28.11.1974. After demise of Deubai, an application was filed by Shankar and Bansi i.e. defendants no.1 & 2 to record their names in the revenue record, which was allowed by the revenue authorities. This gave cause of action for presenting suit by the plaintiff seeking relief, as stated above. 4 The plaintiff, after presentation of the plaint, sought amendment therein by presenting a separate application. By way of 4 amendment, plaintiff requested that in the event Court comes to the conclusion that Deubai i.e. her mother was not full owner of the property even after enforcement of Hindu Succession Act, plaintiff, being legal heir of deceased Laxman, father of plaintiff, be held entitled to claim her rights in all the properties to the extent of her share, which she claims to be ½. Plaintiff, as such, seeks leave to incorporate the prayer in respect of partition and separate possession. The application for amendment was allowed by the trial Court. 5 Defendants resisted the suit by presenting written statement at Exhibit-16. Defendants admitted that the land originally belonged to Laxman and after his demise, Deubai, being his wife, succeeded to the property. Kishan, father of defendants no.1 and 2, was adopted son of Deubai. On execution of gift deed by Deubai in favour of her daughter Venubai, same was challenged by Kishan in R.C.S. No.380/1951. In view of the decree passed in said suit, wherein plaintiff as well as her mother Deubai, were parties, it was declared that the gift deed shall be valid during the life time of Deubai. The validity of adoption of Kishan by Deubai was not controverted by either of the defendants in the said suit. It is, therefore, contention of defendants no.1 and 2 in their written statement that the decree passed in earlier suit binds the parties to the suit and as such, plaintiff is not entitled to raise claim in respect of the suit property. That, so far as entitlement of the plaintiff on the strength of will deed is concerned, it is contended that Deubai had no entitlement to bequeath the properties in favour of the plaintiff herein and as such, 5 plaintiff cannot base her entitlement on the strength of will deed. It is further contention of defendants that admittedly, Deubai was not possessed of the properties on the date of implementation of Hindu Succession Act and as such, she did not become full owner of the properties. She did not have entitlement to bequeath the properties in favour of the plaintiff by executing a will deed. So far as the contention raised by the plaintiff in respect of her entitlement to the property, she being the legal heir of Laxman, it is contended that it is Kishan, father of defendants no.1 and 2, whose entitlement to the property, stand confirmed on demise of Laxman in 1909. It is contended that Kishan became entitled to the property by virtue of his adoption by Deubai in the year 1915. The entitlement of Kishan in respect of the suit property, is as per the old Hindu Law and as such, present plaintiff cannot base her claim dependent on the provisions of Hindu Succession Act, which came into force much later. Defendants, as such, prayed for dismissal of the suit. 6 The trial Court, after recording evidence of the parties, came to the conclusion that the plaintiff has established her case in respect of her entitlement to the property as legal heir of Laxman. The trial Court took a view that in view of the law laid down by the Apex Court in the case of Daya Singh (dead) through L.Rs. and another Vs. Dhan Kaur, reported in AIR 1974 SC 665, opening of succession to the property is deferred till the date of death of limited owner i.e. Laxman’s wife Deubai, in view of provisions of 8 of the Hindu Succession Act and entitlement of the plaintiff shall be determined in accordance with the law, which is in 6 force on the date of death of limited owner i.e. her mother, which event took place in 1974 much after coming into force of provisions of Hindu Succession Act. The trial Court, thus, took a view that the plaintiff would be entitled to have relief in respect of partition and separate possession of the suit property to the extent of her ½ share. The trial Court, as such, proceeded to pass decree to that effect on 30 th July, 1981. 7 Defendants 1, 2 and 5 raised challenge to the judgment and decree passed by the trial Court by preferring an appeal bearing Regular Civil Appeal No.351/1981. Plaintiff herein also presented an appeal being R.C.A. No.379 of 1981, raising exception to the decree passed in respect of refusal by trial Court to grant relief in totality. Both the appeals were heard and disposed of by the Assistant Judge, Ahmednagar, on 04.04.1984. The first appellate Court confirmed the finding in respect of entitlement of the plaintiff to have share in the property as legal heir of deceased Laxman. The first appellate Court, however, held the plaintiff entitled for 1/4 th share in the suit property. It was further directed that plaintiff be put in symbolic possession over the property, which is held to be possessed by defendants no.3 and 4. Defendants no.3 and 4 were directed to pay rent to the plaintiff in respect of 1/4 th share in the suit property. The appeal presented by the plaintiff, bearing R.C.A. No. 379/1981, came to be dismissed. 8 Being aggrieved by the judgment and decree passed by the Courts below, original defendants no.1, 2 and 6 to 9 have approached this Court by presenting instant Second Appeal. 7 9 I have heard arguments advanced by Shri R.N.Dhorde, learned Counsel for appellants and Shri S.D.Kulkarni, learned Counsel for Respondent No.1- original plaintiff. 10 Following substantial questions of law arise for determination of this Second Appeal: (A) Whether the limited rights in respect of the property conferred on Deubai, got transformed into full ownership after coming into force provisions of Hindu Succession Act, 1956? (B) Whether Deubai had a capacity to bequeath the suit properties in favour of plaintiff Venubai by executing will deed on 06.01.1958 in her capacity as a full owner of the properties; and whether Venubai, the plaintiff, got entitlement to the property on the basis of such will deed. (C) Whether in the alternative, Venubai, the plaintiff, being possessed of the properties on the date of coming into force the provisions of Hindu Succession Act, is entitled to be considered as the full owner of the properties by virtue of provisions of Section 14 of the Hindu Succession Act? (D) Whether succession to the properties left by deceased Laxman can be said to be governed by Section 8 of the Hindu Succession Act; and whether it can be accepted that succession to the estate of deceased Laxman, who died in 1909, opens on the date of death of 8 limited owner i.e. his wife Deubai, and the entitlement of the plaintiff to the estate shall be governed by provisions of Section 8 of the Act? (E) What would be the effect of adoption of Kishan, father of defendants No.1 and 2, by deceased Deubai on 18.12.1915; and in view of such adoption, whether the plaintiff can be held entitled to the property. 11 While adverting to the arguments advanced by the plaintiff to the effect that she (Venubai) became entitled to the properties as a legatee under the will executed by deceased Deubai on 06.01.1958, it is necessary to probe into the question, whether the limited rights in respect of the property conferred on Deubai on demise of her husband Laxman transformed into full ownership after coming into force the provisions of Hindu Succession Act, 1956. It would be advantageous to refer to the provisions of Section 14 of the Act. 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 her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and 9 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. 12 The scope and ambit of Section 14(1) & (2) come up for consideration in the landmark judgment in the matter of V. Tulsamma Vs. V. Sesha Reddi, reported in AIR 1977 SC 1944. While dealing with the entitlement of a Hindu female in respect of suit property acquired by her, the Apex Court has laid emphasis on certain prerequisites. Although, considering the social and reformative provisions having need to put liberal interpretation, which would benefit the class i.e. Hindu female, the Apex Court has ruled in favour of putting restrictive meaning to sub- section (2) of Section 14, which limits the entitlement of Hindu women to acquire the property, thereby widening the scope of applicability of sub- section (1) of Section 14. The acquisition of the property by Hindu female in lieu of maintenance and where such property was possessed by her on the date of enforcement of the provisions of the Act or was subsequently acquired by her and possessed, the law declares that she would be entitled to become full owner thereof. The Apex Court has ruled that provisions of sub-section (2) of Section 14 shall have to be construed as in the nature of proviso or exception to sub-section (1). It is laid down by the Apex Court: 10 “Sub-section (1) of Section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property. Sub-section (2) is more in the nature of a proviso or exception to sub-section (1). It excepts certain kinds of acquisition of property by a Hindu female from the operation of sub-section (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of woman in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in sub-section (1). It cannot be interpreted in a manner which would rob sub-section (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub-section (1). Sub-section (2) must, therefore, be read inthe context of sub-section (1) so as to leave as large a scope for operation as possible to sub-section (1) and so read, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of sub-section (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property. 11 13 In order that a female Hindu acquires full ownership in respect of the property, she must have entitlement to the property and secondly, she must be possessed of the property. However, where the property is acquired by a female Hindu for the first time, without there being any pre-existing right and under any instrument, such as decree, gift, will or award, the terms of which prescribe a restricted estate, she would not be entitled to claim full ownership and or interest in the property remains restricted or limited. 14 While dealing with the question, as to whether a female Hindu should be in actual possession of the property, the Apex Court, while interpreting the provisions, has led emphasis on her entitlement to possess and it is not necessary for application of Section 14(1) that the Hindu woman should be in actual or physical possession of the property. The word “possessed” used in Section 14(1) has been interpreted by the Apex Court and it has been held that the word has been used in very wide sense so as to include the state of owning or having the property in ones power and need not be in actual or physical possession of a Hindu female. It is sufficient if she has a right in the property and said property is in her power or domain. The domain over the property is held to be of prime importance. The question in respect of interpretation of provisions of Section 14(1) has fallen for interpretation in the matter of Eramma Vs. Veerupana and others, reported in AIR 1966 SC 1879. The Apex Court, while analysing the provisions, has stressed the need in respect of acquisition of the property by a female Hindu by virtue of acquisition or conferment of title and further ruled that the Section does not, in any way, confer title on a Hindu female where she did not possess in fact any 12 vestige of title. It has been observed in para 7: “The property possessed by a female Hindu, as contemplated in the section, is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act. It may be noticed that the Explanation to S.14(1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title, however restricted the nature of her interest may be. The words “as full owner thereof and not as a limited owner” as given in the last portion of subsection (1) of S.14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. In other words, S.14(1) of the Act contemplates that a Hindu female who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of this section. The object of the section is to extinguish the estate called `limited estate’ or `widow’s estate’ in Hindu Law and to make a Hindu woman, who under the old law would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder. The Explanation to sub-section (1) of S.14 defines the word `property’ as including “both movable and immovable property acquired by a female Hindu by inheritance or devise ....” Sub-section (2) of S.14 also refers to acquisition of property has not given any exhaustive connotation of the word `property’, but the word `acquired’ used in the Explanation and also in sub-s.(2) of S.14 clearly indicates that the object of the section is to make a Hindu female a full owner of the property which she has already acquired or which she acquires after the enforcement of the Act. 13 It does not in any way confer a title on the female Hindu where she did not in fact possess any vestige of title. It follows, therefore, that the section cannot be interpreted so as to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser. In other words the provisions of S. 14 (1) of the Act cannot be attracted in the case of a Hindu female who is in possession of the property of the last male holder on the date of the commencement of the Act when she is only a trespasser without any right to property.” 15 Turning to the facts of the instant case, it is to be noted that on demise of Laxman, father of the plaintiff, her mother Deubai succeeded to the property as a limited owner. Laxman died in 1909. The entitlement of Deubai as a limited owner has been recognised by Hindu Women’s Right to Property Act, 1935. However, on demise of Laxman, his immovable property, which was in the hands of his widow Deubai, was the restricted estate, held by her. She, however, adopted Kishan i.e. father of defendants no.1 & 2 on 18.12.1915. Deubai had also executed a gift deed in favour of Venubai in 1943 in respect of the suit property. 16 Another development, which requires consideration, is presentation of the suit by Kishan, father of defendants no.1 and 2 and adoptive son of Deubai, seeking declaration that the gift deed executed by Deubai in favour of plaintiff Venubai be declared as inoperative and not binding on his rights. The suit was decreed and gift deed was held to be inoperative during the life time of Deubai and it was further held that the said gift deed does not bind Kishan. These peculiar facts make a difference and keeps Deubai away from becoming entitled to the property as a full owner. The execution of the will deed in favour of 14 Venubai after coming into force Act of 1956, is required to be viewed considering the developments, those have taken place between 1915 to 1958. The impact of adoption of Kishan, which has been admitted and accepted by Deubai as well as Venubai, the plaintiff, in earlier litigation, has to be considered while dealing with the entitlement of plaintiff Venubai to the property. It is required to be taken note of, at this stage, that adoption of Kishan was prior to coming into force Hindu Adoption and Maintenance Act and Hindu Succession Act. As such, right, title and entitlement of Kishan in relation to the properties left behind by Laxman is required to be determined in accordance with Shastrik Hindu Law. On execution of gift deed in favour of plaintiff Venubai, Deubai parted with possession over the suit property. It has been declared in subsequent litigation presented by Kishan in the shape of Regular Civil Suit No. 350/1951 that Venubai would be entitled to retain possession until the death of Deubai. It is not controverted and there is no evidence to arrive at a conclusion that Deubai was not in physical possession over the suit property until her death, which is admittedly much after coming into force of Hindu Succession Act. Thus, it is clear that deceased Deubai was not possessed of the suit property on the date of enforcement of Hindu Succession Act. Even if meaning attached to the word “possessed” is construed in liberal manner, no inference can be drawn in respect of possession of Deubai over the suit property. Deubai, on her own accord, transferred the property in favour of her daughter by executing gift deed, which is held to be binding and operative during life time of Deubai. The gift deed would bind Deubai until her life time, obviously, for the reason that in accordance with the law prevailing then, Deubai had a lilmited right in the property. If the property is already transferred by way of any 15 instrument and if a Hindu female is found to be not in possession of the property on the date of commencement of Hindu Succession Act, she is not entitled to acquisition of full ownership in respect of the property, obviously for the reason that she had already transferred her interest therein. The provisions of Section 14 of the Hindu Succession Act, therefore, do not come for rescue of plaintiff Venubai in contending that her mother Deubai had become full owner of the