Case: MUNNI DEVI ALIAS NATHI DEVI (DEAD) THR LRS. &amp; ORS Vs. RAJENDRA ALIAS LALLU LAL (DEAD) THR LRS. &amp; ORS

2. In order to appreciate the controversy involved in the matter, it would be beneficial to reproduce the genealogical table/pedigree of the families of the parties.3. The original plaintiff Daulalji filed the suit being No.56 of 1973 seeking possession of the suit property alongwith the mesne profits, against the original defendant - Smt. Bhonri Devi, widow of Late Shri Dhannalalji and against the other defendant Nos. 2 to 12, who were the tenants in the suit property. The suit property is the house property bearing No.1875, Chokdi Topkhana Desh, Jaipur which was an ancestral property in the hands of Harinarayanji and his brother Ganeshnarayanji. As per the case of the plaintiff – Daulalji, he was adopted by Sri Bakshji, who was the great- grandson of their common ancestor Gopalji on 11.06.1916. The husband of the defendant No.1 Bhonri Devi, i.e., Dhannalalji predeceased his father Ganeshnarayanji in 1936. Ganeshnarayanji expired in 1938 and his brother Harinarayanji died issueless on 11.11.1953. As per the further case of the plaintiff Daulalji, Harinarayanji had executed a Will on 30.07.1949 in his favour, and upon his death, on 11.11.1953, he had become the owner of the suit property alongwith other properties of Harinarayanji by virtue of the said Will. Upon the death of Harinarayanji, the defendant No.1 – Bhonri Devi started harassing the plaintiff and therefore the plaintiff left the suit property on 25.12.1953, and since then the defendant No.1 was in possession of the suit property. The defendant Nos.2 to 12 were the tenants in the part of suit property. The plaintiff Daulalji claimed that after the death of Harinarayanji, he being the only male member in the family as well as the legatee under the Will of Harinarayanji, had become the sole owner of the suit property and, therefore, was entitled to recover the possession of the suit property from the defendant No.1 Bhonri Devi, who had no legal right or interest in the suit property.4. The suit was resisted by the defendant No.1 Bhonri Devi by filing the written statement, denying the averments and allegations made in the plaint. She also denied any Will having been executed by Harinarayanji in favour of the plaintiff Daulalji and further contended that Harinarayanji, with a view to take her care, after the demise of her husband and father-in- law, had started residing with her in the suit property, however, the plaintiff never resided in the suit property. It was further contended that the defendant Nos.2 to 12 were giving rent to her, she being the wife of Dhannalalji and daughter-in-law of Ganeshnarayanji, and thus, was in possession of the suit property as an owner and was maintaining herself from the income derived from the suit property. It was also contended that the limited right vested in her favour in the suit property, had enlarged into full ownership by virtue of Section 14(1) of the Hindu Succession Act, 1956, which came into force on 17.06.1956. She, therefore, contended that the suit at the instance of the plaintiff was not maintainable and was liable to be dismissed. The defendant Nos.2 to 8 and 10 to 12 had also filed their respective written statements contending, inter alia, that the defendant No.1 Bhonri Devi was the owner of the suit property, and they were her tenants and were paying rent to her only.5. It may be noted that the original plaintiff Daulalji expired on 10.11.1983 and original defendant No. 1 Bhonri Devi expired on 17.04.1979, pending the suit. Thereafter, the suit was prosecuted by Munnidevi, daughter of original plaintiff – Daulalji and the legal representatives i.e. the nephews and niece of defendant No. 1 Bhonri Devi, who were substituted in her place pending the suit. The suit was decreed by the trial Court on 05.08.1989, against which the First Appeal being No. 120/1989 was preferred by the legal representatives of the defendant no. 1 Bhonri Devi. Pending the appeal, Munnidevi, daughter of original plaintiff Daulalji also expired, and her legal representatives were substituted in her place. The said First Appeal having been allowed by the High Court vide the impugned order dated 20th July, 2017, the present appeal has been filed by the heirs and legal representatives of the said Munnidevi (hereinafter referred to as the appellants) against the respondent nos. 1 to 4 (contesting respondents) and respondent nos. 5 & 6 (Proforma respondents).

Reasoning: 8. Though number of issues were raised by the parties during the course of trial before the Trial Court and during the course of the appeal before the High Court, the learned Counsel Mr. Puneet Jain for the appellants has not disputed before this court that Bhonri Devi had a right of maintenance from the estate of her husbands joint family. He also has not disputed that Bhonri Devi was residing in the suit house since the time Harinarayanji was alive i.e., prior to 11.11.1953, and that after the death of Harinarayanji, Bhonri Devi continued to live in the said house and was collecting the rent from the tenants who were occupying part of the suit premises.9. Similarly, learned Senior Advocate Mr. Shishodia for the concerned respondents has also not pressed into service the contentions raised by Bhonri Devi in the suit with regard to the plaintiff Daulalji being a stranger to the joint family of her husband, and with regard to his adoption by Sri Bakshji. He has also not pressed into service the issue with regard to the Will executed by Harinarayanji in favour of Daulalji.11. From the plain reading of Section 14(1) along with the Explanation thereto, it emerges that in order to become a full owner and not a limited owner, of a property by virtue of Section 14(1), a female Hindu, before or after the commencement of Act of 1956, must be in possession of the property, and it must have been acquired by her 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, or any such property must have been held by her as stridhana immediately before the commencement of the Act.12. In the instant case, we are concerned with the claim of Bhonri Devi of having become the full owner in respect of the suit property on the ground that she was in settled legal possession of the suit property before and after the commencement of the Act, in lieu of her pre-existing right of maintenance, and such limited ownership right had fructified into full ownership by virtue of Section 14(1). The High Court while discussing about the right of a Hindu widow to the property, has observed that the Hindu Womens Right to Property Act, 1937 was in force in the year 1937 when Ganeshnarayanji, father-in-law of Bhonri Devi expired in 1938, and that even prior to the said Act of 1937, the right of Hindu widow was recognised as per the old shastric customs prevalent in the area. In our opinion, the Hindu Womens Rights to Property Act, 1937 conferred right on Hindu widow to the property of her husband, who died after the commencement of the said Act of 1937 and not prior thereto. Bhonri Devis husband Dhannalalji having expired in 1936, the said Act of 1937 would not be applicable to facts of the case. However, prior to the said Act of 1937, the right to maintenance of Hindu widow was recognised in Shastric law. This court in case of V.Tulasamma and other vs. Sesha Reddy(Dead) (supra) has elaborately considered the pre-existing right to maintenance of a Hindu woman while considering the provisions of Section 14 of the said Act of 1956. Justice fazal Ali, as he then was, after quoting the authorities on the subject and elucidating the nature and extent of right of a Hindu wife to maintenance, summarised the position in para 62 as under: -62. We would now like to summarise the legal conclusions which we have reached after an exhaustive consideration of the authorities mentioned above on the question of law involved in this appeal as to the interpretation of Sections 14(1) and (2) of the Act of 1956. These conclusions may be stated thus:(1) The Hindu females 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 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 females 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-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 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.(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.13. Following the said observations made in the case of V.Tulasamma (supra), this court in Raghubar Singh & Ors vs Gulab Singh & Ors (1998) 6 SCC 314  held as under:22. The judgment in Tulasamma case [(1977) 3 SCC 99]  has held the field till date. (See also with advantage: Ram Kali v. Choudhri Ajit Shankar [(1997) 9 SCC 613]  and Bhoomireddy Chenna Reddy v. Bhoospalli Pedda Verrappa [(1997) 10 SCC 673] .)23. Thus, we find that there is enough authority for the proposition that the right to maintenance of a Hindu female is a pre-existing right, which existed in the Hindu law long before the Act of 1937 or the Act of 1946 came into force and is not a creation of those statutes, which only recognised that position. In the words of Fazal Ali, J. in Tulasamma case [(1977) 3 SCC 99]  : (SCC p. 135, para 62)(1) The Hindu females 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.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 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.25. Explaining the meaning of the expression possessed as used by the legislature in Section 14(1) of the 1956 Act in Tulasamma case [(1977) 3 SCC 99]  this Court held: (SCC p. 136, para 62)(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 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.26. It is by force of Section 14(1) of the Act, that the widows 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 [(1977) 3 SCC 99]  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.14. In view of the above, there remains no shadow of doubt that a Hindu womans right to maintenance was not and is not an empty formality or an illusory claim being conceded as a matter of grace and generosity. It is a tangible right against the property, which flows from the spiritual relationship between the husband and the wife. The said right was recognised and enjoined by pure Shastric Hindu Law, which existed even before the passing of the 1937 or the 1946 Acts. Those Acts merely gave statutory backing recognising the position as was existing under the Shastric Hindu Law. Where a Hindu widow is in possession of the property of her husband or of the husbands HUF, she has a right to be maintained out of the said property. She is entitled to retain the possession of that property in lieu of her right to maintenance. Section 14(1) and the Explanation thereto envisages liberal construction in favour of the females, with the object of advancing and promoting the socio-economic ends sought to be achieved by the said legislation. As explained in V.Tulasamma (supra) case, the words possessed by used in Section 14(1) are of the widest possible amplitude and include the state of owning a property, even though the Hindu woman is not in actual or physical possession of the same. Of course, it is equally well settled that the possession of the widow, 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.15. The undisputed facts in the instant case are that Dhannalalji, the husband of Bhonri Devi expired in 1936, Ganeshnarayanji, the father-in-law of Bhonri Devi expired in 1938 and Harinarayanji, the brother of Ganeshnarayanji died on 11.11.1953. Daulalji was adopted by Sri Bakshji in the year 1916. Harinarayanji, Ganeshnarayanji and Sri Bakshji had common ancestor Gopalji. It is also not disputed that the suit property was an ancestral property in the hands of Harinarayanji and Ganeshnarayanji. It is also not disputed that Bhonri Devi was staying in the suit property before the death of Harinarayanji, and after his death she was in possession and in charge of the said property, and was maintaining herself by collecting rent from the tenants who were occupying part of the suit property.17. From the said documents it clearly emerges that Bhonri Devi was paying the house tax prior to 1956 and was collecting the rent from the tenants prior to and after 1956. Pertinently from the document Exhibit-54, it emerges that in 1940 Bhonri Devi, when she was staying with her in-laws, had no source of maintenance, and therefore she was granted Rs. 2.50 per month by way of maintenance, by the Punya Department of the Government. She claiming to be a PARDANASHEEN lady had authorised Daulalji to collect the said amount of maintenance. The said document clearly shows that Bhonri Devi was residing in the suit house since 1940. Be that as it may, it was well established that Bhonri devi was in possession of the suit house before and after the death of Harinarayanji in 1953 and had continued to remain in possession thereafter and was collecting rent from the tenants who were in occupation of part of the suit premises since 1955, till the date of filing of the suit in 1965 by the plaintiff Daulalji.18. The afore-stated facts and circumstances clearly established that Bhonri devi had long settled possession of the suit property, which she had acquired in lieu of her pre-existing right to maintenance, prior to the commencement of the Act of 1956, which entitled her to become a full owner of the suit property by virtue of Section 14(1) of the said Act. Her exclusive possession of suit property after the death of Harinarayanji in 1953 i.e., prior to coming into force of the said Act in 1956, was not only not disputed but was admitted by the plaintiff Daulalji in the plaint itself. Her pre-existing right to maintenance from the estate of the HUF of her husband was also well established. The submission of Mr. Jain for the appellants that mere right to maintenance would not ipso facto create any charge on the property and that for creating legal charge recognising right of Hindu women to maintenance required execution of a document, device or agreement, cannot be countenanced. Her pre-existing right to maintenance, coupled with her settled legal possession of the property, would be sufficient to create a presumption that she had a vestige of right or claim in the property, though no document was executed or specific charge was created in her favour recognizing her right to maintenance in the property.19. It may be noted that in the Will executed by Harinarayanji in favour of Daulalji, there was no mention of the suit property. What was stated in the Will was that whatever movable and immovable property, which belonged to Harinarayanji would be devolved upon Daulalji. It was only in the Probate proceedings filed by Daulalji in respect of the said Will, he had shown the suit property in the Schedule. It is true that the objections raised by Bhonri Devi against granting of Probate in favour of Daulalji were not accepted by the Probate Court, and the alleged Will executed by Harinarayanji in favour of Bhonri Devi was also not proved by her in the said proceedings. Nonetheless, in view of her pre-existing right to maintenance from the estate of the HUF of her husband and in view of her exclusive settled possession of the suit property prior to and after the commencement of the Act of 1956, the only conclusion which could be drawn, would be that Bhonri Devi had acquired the suit property in lieu of her pre-existing right to maintenance, and that she had held the suit property as the full owner and not limited owner by virtue of Section 14(1) of the said Act of 1956.20. As stated earlier, Hindu womans right to maintenance is a tangible right against the property which flows from the spiritual relationship between the husband and the wife. Such right was recognized and enjoined under the Shastric Hindu Law, long before the passing of the 1937 and the 1946 Acts. Where a Hindu widow is found to be in exclusive settled legal possession of the HUF property, that itself would create a presumption that such property was earmarked for realization of her pre-existing right of maintenance, more particularly when the surviving co-parcener did not earmark any alternative property for recognizing her pre-existing right of maintenance. The word possessed by and acquired used in Section 14(1) are of the widest amplitude and include the state of owning a property. It is by virtue of Section 14(1) of the Act of 1956, that the Hindu widows limited interest gets automatically enlarged into an absolute right, when such property is possessed by her whether acquired before or after the commencement of 1956 Act in lieu of her right to maintenance.