1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.409 OF 2009 1 Venkati s/o Mahadu Shinde, age: 55 years, Occ: Agril., R/o Dornali, Taluka Mukhed, District Nanded. 2 Ramrao s/o Mahadu Shinde, age: 50 years, Occ: Agril., R/o as above. Appellants Versus 1 Rajabai w/o Bhanudas Shinde, age: 45 years, Occ: Agril., R/o Dornali, Taluka Mukhed, District Nanded. 2 Gangabai w/o Dnyanoba Shinde, age: 25 years, Occ: Agril., R/o Undri, Taluka Mukhed, District Nanded. Respondents Mr.M.V.Deshpande, advocate for appellants. Mr.D.R.Shelke, advocate for Respondents. CORAM: R.M.BORDE, J. Reserved on : 17 th February, 2010. Pronounced on: 24 th February, 2010. ORAL JUDGMENT: 1 This is an appeal by original plaintiffs raising exception to the concurrent judgments delivered by the Courts below. 2 Plaintiffs instituted suit, being Regular Civil Suit No.14/2005 against 2 defendants – respondents herein claiming a declaration that decree passed in Regular Civil Suit No.58/1994 shall be declared to be binding on defendants and they be restrained by an order of injunction from alienating suit property. It is the contention of plaintiffs that disputed property has been given to the defendants for their maintenance and in view of the compromise decree effected in Regular Civil Suit No.58/1994, a restricted ownership has been conferred on them. Defendants are entitled to cultivate the property in lieu of payment of maintenance and further that they are not entitled to make permanent alienation of the same. The consent terms recorded in R.C.S. No.58/1994, to that effect, are binding on defendants. It is further alleged that defendants are trying to alienate property in favour of third persons in violation of terms of compromise and as such, they be restrained from making alienation of the property. 3 Defendants appeared and controverted contentions raised by plaintiffs by filing written statement. According to them, the property has been acquired by defendant no.1, who admittedly, has entitlement to receive maintenance out of the suit property. According to defendant no.1, her husband was entitled to have share in the property and on his demise, defendant no.1 and her daughter – defendant no.2 have a preexisting right to receive maintenance. By virtue of compromise decree effected in R.C.S. No.58/1994, their preexisting right has received a stamp of approval and by virtue of provisions of Section 14(1) of Hindu Succession Act, their limited ownership is transformed into full ownership. Plaintiffs are not entitled to secure any declaration imposing restriction on enjoyment of property by defendants. Defendants, as such, prayed for dismissal of suit. 4 The trial Court, on consideration of evidence led by the parties, was pleased to dismiss the suit presented by plaintiffs. An appeal presented by plaintiffs, being Regular Civil Appeal No.58/2006 also came to be dismissed by 3 Ad hoc District Judge-1, Kandhar, in view of judgment and decree dated 20.02.2009. 5 The only question that arises for consideration in the appeal is, whether transfer of suit property in favour of defendants by virtue of compromise decree effected in R.C.S. No.58/1994 would come within the purview of Section 14(1) of Hindu Succession Act, 1956; or whether Section 14(2) of Hindu Succession Act, 1956, would be made applicable thereby holding defendants limited owners of the suit property having no entitlement to alienate same. Admit. By consent of learned Counsel for respective parties, matter is taken up for final hearing forthwith. 6 The law on the question is well settled and any acquisition of the property in lieu of maintenance or any pre-existing right would come within the purview of Section 14(1) of the Act and Section 14(2) would be inapplicable to such cases. It cannot be controverted that in the instant case, defendant no.1 has right to receive maintenance out of the properties. It also cannot be controverted that her deceased husband had share in the property and her entitlement to receive maintenance has merely been recognised in the compromise decree passed earlier. The compromise decree effected in earlier suit, being in recognition of pre-existing right of defendants to receive maintenance out of suit property, her possession over suit property or transfer of said property in her favour, thereby creating life interest, would obviously not come within purview of Section 14(2) of the Act. 7 It need not be reiterated once again that Section 14(2) of the Act, is held by the Apex Court to be in the nature of proviso to sub-section (1) of Section 14 of the Act. Sub-section (1) of Section 14 is large in its amplitude and 4 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 full owner of the property. It would be appropriate to refer to the conclusions drawn by the Apex Court after examining the issue in the matter of V. Tulsamma Vs. V. Sesha Reddi, reported in AIR 1977 SC 1944. It is observed thus: “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 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 5 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 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 6 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 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 7 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 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 8 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 the ratio laid down by the Apex Court in the judgments cited supra, I am of the view that the reasons recorded by the Courts below and conclusion arrived at is legal, proper and does not call for any interference in exercise of powers under Section 100 of the Code of Civil Procedure. 11 Appeal, therefore, stands dismissed. No costs. (R.M.BORDE) JUDGE ******* adb/sa40909