Case: Bai Vajia (Dead) By L.Rs Vs. Thakorbhai Chelabhai and Others

2. In the year 1908 Ranchhodji son of Dahyabhai instituted Civil Suit No. 403 of 1908 against Bhimbhai son of Haribhai, Dayalji and Dahyabhai sons of Mohanbhai, Motabhai son of Gulabbhai, Bai Amba widow of Nichhabhai and Bai Vajia widow of Surbhai, for a partition of the joint Hindu family properties belonging to the parties. The suit resulted in a decree dated August 18, 1909 which provided, inter alia, that Dayalji and Dahyabhai sons of Mohanbhai, and Motabhai son of Gulabbhai would be full owners of Survey Nos. 31 and 403 and also owners of a half share in Survey Nos. 591, 611, 288 and 659/3. These persons were burdened by the decree with the responsibility to pay an yearly maintenance allowance of Rs. 42/- to Bai Vajia on Magsher Sud 2 of every year and the decree further provided that in the event of default in payment of such allowance continuing for a period of a month after the due date, Bai Vajia would be entitled to take possession of the land above-mentioned in lieu of the maintenance awarded to her and would enjoy the income thereof without however being competent to sell, mortgage, bequeath, gift or otherwise transfer the same. The decree declared that any alienation made by Bai Vajia in contravention of the direction given by the decree in that behalf would be void. By clause 8 of the decree sons of Mohanbhai as well as Motabhai were also deprived of the right of alienation of the land during the lifetime of Bai Vajia.Default having been made in the payment of maintenance to Bai Vajia according to the terms of the decree, she took out execution and obtained possession of the land above detailed. Thereafter Dayalji and Dahyabhai sons of Mohanbhai deposited in court the arrears of maintenance and filed an application with a prayer that the land of which possession had been given to Bai Vajia in execution of the decree be restored to them. That application was dismissed on the 8th March 1912 and more than 2 1/2 years later, i.e., on 27th October 1914, Dahyabhai son of Mohanbhai instituted Civil Suit No. 576 o f 1914 in the court of the Additional Sub- Judge, Valsal, for a declaration that the dismissal of his application was null and void and for recovery of possession of the land which Bai Vajia had taken in execution of the decree. The suit was decreed by the trial court but was dismissed in first appeal on the 13th March 1918.Bai Vajia continued to enjoy the land till the 21st October 1963 when she made a sale of Survey No. 31 in favour of one Dhirubhai Paragji Desai. The sale was challenged in Civil Suit No. 110 of 1966 by 10 persons being the heirs of Mohanbhai and Motabhai as shown in the pedigree table above, the defendants being Bai Vajia and the said Dhirubhai Paragji Desai. It was claimed by the plaintiffs that Bai V ajia had no right to alienate in any manner the land obtained by her in execution as per the terms of the decree, that sub-section (1) of section 14 of the Hindu Succession Act (hereinafter referred to as the Act) had no application to her case which was covered by sub-section (2) of that section and that the sale by her in favour of defendant No. 2 was null and void. Bai Vajia contested the suit and contended that the sale was good in view of the provisions of subsection (1) abovementioned which enlarged her limited ownership into full and absolute ownership and that sub-section (2) aforesaid did not cover her case. The suit was decreed by the trial court and Bai Vajia remained unsuccessful in the appeal which she instituted in the court of the District Judge, Bulsar. A second appeal was filed by her before the High Court of Gujarat and during the pendency thereof she expired when one Dhirubhai Dayalji Desai was substituted for her as her sole heir and legal representative. The appeal came up for hearing before a learned Single Judge of the High Court who by its judgment dated 5th November, 1976 dismissed it holding that the decree passed in Civil Suit No. 403 of 1908 did not recognise any "pre-existing" right of Bai Vajia in the property in dispute. In coming to this conclusion, the learned Judge followed Naraini Devi v. Smt. Ramo Devi and others.(1)The legal representative of Bai Vajia is the sole appellant in the appeal before u s, the respondents thereto being nine of the plaintiffs and six legal representatives of plaintiff No. 5 as also the purchaser from Bai Vajia who is arraigned as respondent No. 11.

Reasoning:
We find that only that part of this argument which is interpretative of sub-section (1) is correct, namely, that it is only some kind of "limited ownership" that would get enlarged into full ownership and that where no ownership at all vested in the concerned Hindu female, no question of the applicability of the sub-section wouldplain reading of sub-section (1) makes it clear that the concerned Hindu female must have limited ownership in property, which limited ownership would get enlarged by the operation of that sub section. If it was intended to enlarge any sort of a right which could in no sense be described as ownership, the expression "and not as a limited owner" would not have been used at all and becomes redundant, which is against the well-recognised principle of interpretation of statutes that the Legislature does not employ meaninglessthe reasons which weighed with Bhagwati and Fazal Ali, JJ., in rejecting this argument we find no substance in it as we are in full agreement with these reasons and the same may not be reiterated here. However we may emphasize one aspect of the matter which flows from a scrutiny of subsection (1) of section 14 of the Act and the explanation appended thereto. For the applicability of sub-section ( 1) two conditions must co- exist,the concerned female Hindu must be possessed of property and(2) such property must be possessed by her as a limited owner.If these two condition s are fulfilled, the sub-section gives her the right to hold the property as a full owner irrespective of the fact whether she acquired it before or after the commencement of the Act.The Explanation declares that the property mentioned in sub section (1) includes both movable and immovable property and then proceeds to enumerate the modes of acquisition of various kinds of property which the sub-section would embrace.Tulasammas case (supra) having, in our opinion been decided correctly, the appeal in hand must succeed as the facts in the latter are on all fours with those in the former.Desai did vehemently argue that this was not so inasmuch as by the decree dated August 18, 1909 the ownership of the land in dispute was vested in Dayalji and Dayabhai sons of Mohanbhai and Motabhai son of Gulabbhai while Bai Vajia was only given the right to possess it for her life-the ownership remaining all along in the said three persons, but this argument does not find favour with us. It has to be noted that so long as she lived, Bai Vajia was to have full enjoyment of and complete control over the land, barring any right to alienate it. Such a right was also taken away from the said three persons. The arrangement meant that whatever rights existed in relation to the land during the life-time of Bai Vajia, were exercisable by her alone and by nobody else. Not even the said three persons could deal with the land in any manner whatsoever, and if they did, Bai Vajia had the right to have their acts declared null and void during her life-time. After the land was made over to her she became its owner for life although with a limited right and therefore only as a limited owner. Under the decree the land vested in the said three persons only so long as they were not dispossessed of it at the instance of Bai Vajia in accordance with the terms stated therein. As soon as Bai Vajia took possession of the land, no rights of any kind whatsoever in relation thereto remained with them and thus they ceased to be the owners for the span of Bai Vajias life.