SANTHOSH AND ORS.

A v.

SARASWATIIIBAI AND ANR.

NOVEMBER 20, 2007

[S.B. SINHA AND HARJIT SINGH BEDI, JJ.) _,

Hindu Succession Act, 1956:

Sections 14(1) and (2)-Applicability of-Right of female Hindu c to possess any property-Jn a consent decree, widow allotted property by way of maintenance with limited right over property-Held: Since property was acquired in lieu of right to maintenance, it was by virtue of pre-existing right and such acquisition would not be within ambit of s.14(2)-s.14(1) would apply-Property would become absolute D property of such female Hindu.

In a suit between the first wife of 'T' and the second wife and her son, a compromise was entered and a consent decree dated 20. 7 .1964 was passed. The terms of consent decree was that the land to the extent E of 6 acres 33 guntas was given to first wife for her maintenance till her death; thatthe second wife and her son would not interfere and obstruct in the peaceful possession of that portion ofland given to first wife; that the first wife would not alienate land which was given for maintenance

~ ' and after the death of first wife, the land given to her would be reversed to the second wife and her son. The first wife died in 1992.

Respondents-plaintiffs who were heirs and legal representatives of the firstwife filed a suit claiming the said land on the ground that first wife was the owner thereof in terms of s.14(1) ofHindu Succession Act,

1956. Appellants-defendants contested the suit on the ground that first G

-i wife was not the absolute owner of the said property having been allotted to her by reason of the consent decree and that the suit land was allotted to her byway of maintenance which she could keep in possession only

375 H

A during her life time and therefore s.14(2) of the Act and not s.14(1) would apply.

The suit was dismissed on the ground that respondents were not the owners and were not in possession of the suit property. First appellate

8 Court allowed the appeal opining that s.14(1) being applicable, the respondents became the owners of the suit property. Second appeal by appellants was dismissed. Hence the present appeal.

Dismissing the appeal, the Court c HELD: 1. The possession of first wife in respect of 6 acres 33 guntas ofland even prior to the institution of the suit has been accepted in the said consent decree. Appellants undertook not to interfere in her peaceful possession thereover. Admittedly after the death of'T' who died after coming into force of the Hindu Succession Act, first wife D became one of the co-owners of the property. It is, therefore, not a case where she had no right to possess the said land. If she had a right to possess the said land as a co-owner, the question of divesting her of the said right by invoking sub-s.(2) of s.14 of the Act would not arise. The stipulations made in the consent decree dated 20. 7.1964 must thus be E construed having regard to the well settled legal position.

[Paras 13and14) [383-G; 384-A, B, CJ

Shakuntla Devi v. Kam/a and Ors., [2005) 5 SCC 390 and Chandrika Singh (D) by L.Rs v.Sarjug Singh andAnr., (2006) 13 SCALE 408, relied

F on.

Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva and Ors., [1959) Supp. I SCR 968, referred to.

2.1. The Hindu female's right to maintenance is not an empty G 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. 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 H family has property, the female has the legal right to be maintained

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SANTHOSH v. SARASWATHlBAI 377

 therefrom. If a charge is created for the maintenance of a female, the A 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.

[Para 15] (384-D, E, F, G] B _,

2.2. S.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 c legislation. 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 become totally inconsistent with the main D provision. 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 fU"St time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise preexisting rights. In such cases a restricted estate in favour of a female is E legally permissible and s.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 F absolute one by force of s.14(1) and the restrictions placed, if any, under the documentwould 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 G of the transferee. [Para 15] [385-A, B, C, D, E, F] ....,

2.3. 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 s.14(1) clearly makes sub- H

A section (2) inapplicable to these categories which have been expressly excepted from the operation of sub-section (2). 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 B 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 s.14(1) she would get absolute interest in the property. It is equally well settled that the C 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.

[Para 15] (385-G; 386-A, B, CJ

D V Tulasamma and Ors. v. Sesha Reddy (dead) by L.Rs., (1977] 3 SCC 99 and Nazar Singh and Ors. v. Jagjit Kaur and Ors., (1996] 1 sec 35, relied on.

3. The pre-existing right of first wife was crystallized by reason of the said consent decree. Furthermore there is nothing on record to show E that 12 acres 33 guntas ofland was the only property belonging to the joint family and thus, she had been granted more lands to which she was not entitled to. (Para 17] [387-G; 388-A]

CIVIL APPELLATE nJRISDICTION : Civil Appeal No. 5321 of

F 2007.

From the final Judgment and Decree dated 15.11.2005 of the High Court ofKamataka at Bangalore in R.S.A. No. 276/2003.

C.G. Solshe and Vinesh Solshe for the Appellants.

G Basava Prabhu S. Patil, V.N. Raghupathy, B. Subrahmanya Prasad,

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Narayan P. Kengasr and B.B. Patil for the Respondents. ,_

The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted

....

2. Application of Section 14(1) of the Hindu Succession Act, 1956 A (hereinafter referred to as 'the Act') calls for consideration in this appeal which arises out of a judgment and order dated 15th November, 2005 passed by a learned Single Judge of the Kamataka High Court at Bangalore in Regular Second Appeal No. 276 of2003.

3. The short factual matrix involved may be noticed at the threshold .

4. Forthe said purpose, we may notice the genealogy of the family.

Shivaraya (Dead) S/o. Hanumanthappa Patil

Trimukhrao (Died in 1957) Manikappa (Dead) = 1st wife Sundari Bai (Died on 16.10.1992)

Saraswathi

(P-1)

=2nd wife Kashibai

(D-4)

Sharadabai

(P-2)

Shantabai Mallikarjun Jagadevi Mallamma Neelamma (Died in 1987) = wife K Kamalabai

(D-3)

Santosh

(D-1)

Satish

(D-2)

Neelamma

5. Original Suit bearing No. 34of1964 was filed by Sundrabai, first wife of Trimukhrao (respondent No.1 herein) against Mallikarjun (since deceased) and Kashibai (defendant No.4 therein). A consent

~ A decree was passed in that suit, the relevant clauses whereof were as under:-

"1. The plaintiff and the defendant no.2 are the wives of deceased Trimbakrao. The defendant No. I is the son of Trimbakrao. The

B plaintiffSundrabai and Mallikarjun and his mother Kashibai resides separately. ,_

,..,

2. That as per compromise the land Sy. No.73 Kh. No.145 to the extent of measuring 6 acres 33 gunatas. R.A. Rs.9.00 situated c at Khandala, on north side bounded in the east the land of Shivalingappa Biradar in the west public way. In the north the land ofShankarappa in the south remain land Sy. No.73, was given to the plaintiff for her maintenance. She is in possession of that portion of land since 5/6 years. The defendants will not interfere and

D obstruct in the peaceful possession of that portion of land which was given to the plaintiff for her maintenance, till her death. The defendants No, 1 and 2 will remain in possession of remaining half portion ofland Sy.No. 73 on south side as owner. The plaintiff will not alienate (through gift or sale) land which was given for her

E maintenance.

3. That after the death of the plaintiff the land given to her will be ft

reversed to the defendant No.1 and 2. The parties will bear their costs of the cost"." . . ..

6. Mallikarjun died in the year 1987. Sundrabai died in 1992.

Respondents herein who are heirs and legal representatives ofSundrabai '•

filed Original Suit No.210 of 1993 claiming the said land admeasuring 6 Acres 33 guntas from the Northern side of Survey No. 73 on the ground

G that she had become owner thereof in terms of Section 14(1) of the Act.

Appellants who were arrayed in the suit as defendants inter alia contended that Sundrabai was not the absolute owner of the said property v having been allotted to her by reason of the consent decree. It was furthermore contended that the land in suit was allotted to her by way of

H maintenance which she could keep in possession only during her life time

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and, therefore, Section 14(2) of the Act and not Section 14(1) of the A Act would apply.

7. The said suit was dismissed on the premise that the plaintiffs were not the owners and were not in possession of the suit property.

8. On an appeal having been preferred thereagainst, the Principal District Judge Bidar by his judgment and order dated 2nd January, 2003 allowed the said appeal opining that Section 14( 1) of the Act being applicable, the-plaintiffs became the owners of the suit property. By reason of the impugned judgment the second appeal preferred by the appellants has been dismissed.

9. Mr. Sofashe, learned counsel appearing on behalf of the appellants, in support of this appeal inter alia would submit tliat the High Court committed a serious error of law in so far as it failed to take into consideration that Sundrabai on partitioi: could not have been allotted 6 Acres 33 guntas ofland and in that view of the matter, although the land which could fall in her share would be covered by Section 14(1) of the Act, but according to the.learned counsel the share of Sundrabai in the joint family being 7/24 in the total land of joint family being 12 acres 33 guntas, share of Sundrabai would come only to 3 acres 29 guntas. It was submitted that the word "possessed" contained in Section 14 (1) of the Act must be construed to mean ownership as has been held by this Court in [1959] Supp. 1 SCR 968 : Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva and Ors.

10. Mr. Patil, learned counsel appearing on behalf of the respondents, on the other hand, would. support the judgment. It was moreover contended that there is nothing on record to show that the total agricultural lands belonging to the joint family was only to the extent of 12 acres 33 guntas. In fact, Mr. Patil would urge that there were other properties of the joint family besides, .the suit land.

11. Sub-sections (1) and (2) of Section 14 of the Act reads as under:-

A "14. Property of a female Hindu to be her absolute property- (!) 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.

B Explanation - In this sub-section, "property" includes both moveable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or anears of maintenance, or by gift from any person, whether a relative or not, before, at or after the marriage, or by her own skill c or exertion, or by purchase or by prescription, or in any other manner whatsoever, and 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

D 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. In Gummalapura Taggina Matada (supra) on which reliance has been placed by the learned counsel, this Court held that Section 14(1) of the Act has wide application. It not only takes within its sweep a land which was not only in possession of the female Hindu but also covers the

F land over which she has a right to possess stating:-

"Of course, possession referred to in section 14 need not be actual physical possession or personal occupation of the property by the Hindu female but may be possession in law. The possession of a

G licensee, lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purpose of section 14. The word "possessed" is used in section 14 in a broad sense and in the context possession means the state of owning or having in one's

H hands or power. It includes possession by receipt of rents and

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profits. The learned Judges expressed the view that even if a A trespasser were in possession of the land belonging to a female owner, it might conceivably be regarded as being in possession of the female owner, provided the trespasser had not perfected his title. We do not think that it is necessary in the present ase to go to the extent to which the learned Judges went. It is sufficient to B say that "possessed" in section 14 is used in a broad sense and in the context means the state of owning or having in one's hand or power. In the case of Gostha Behari v. Haridas Samanta, P.N.

Mookherjee, J., expressed his opinion as to the meaning of the words "any property possessed by a female Hindu" in the following C words:-

"The opening words in "property possessed by a female Hindu" obviously mean that to come within the purview of the section the property must be in possession of the female concerned D at the date of the commencement of the Act. They clearly contemplate the female's possession when the Act came into force. That possession might have been either actual or constructive or in any form recognised by law, but unless the female Hindu, whose limited estate in the disputed property is E claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word "possession" in its widest connotation, when the Act came into force, the section would not apply."

(See also (2005] 5 SCC 390 : Shakuntla Devi v. Kam/a and Ors., and (2006) 13 SCALE 408 : Chandrika Singh (D} by L.Rs v. Sarjug Singh and Anr.,

13. Sundrabai's possession in respect of 6 acres 33 guntas ofland G even prior to the institution of the suit has been accepted in the said consent decree. Appellants herein undertook not to interfere in her peaceful possession thereover. Admittedly after the death ofTrmukhrao who died after coming into force of the Act, Sundrabai became one of the co-owners of the property being one of his wives who had half share H

A in the joint properties. Succession thereof was governed by Sections 6, 8 and 12 of the Act. It is, therefore, not a case where she had no right to possess the said land. If she had a right to possess the said land as a coowner, the question of divesting her of the said right by invoking subsection (2) of Section 14 of the Act would not arise.

14. The stipulations made in the consent decree dated 20th July, I 964 must thus be construed having regard to the well settled legal position. It is now a well settled principle of law that in considering a deed, the legal position obtaining in this behalf should be kept in mind.

15. Legal position in regard to the right of a female Hindu was laid down by this Court in [1977] 3 SCC 99 : V Tulasamma and Ors. v.

Sesha Reddy (dead) by L.Rs., wherein the legal consequences were summarized as under :-

"(I) The Hindu female's right to maintenance is not an empty fomrnlity 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 ifhe 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 preexisting 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 A 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 B 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 C 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 !egally permissible and Section 14(1) will not operate in this sphere.

Where, however, an instrument merely declares or recognises a D 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 would have to E 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 tal(en out of the ambit of sub-section (2) and would be governed by Section 14(1) despite any restrictions p laced 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 G 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 andinclude the state of owning a property even though the owner is not in actual or H

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."

16. In Nazar Singh and Ors. v. Jagjit Kaur and Ors., [1996] 1

SCC 35, this Court following Tulasamma (supra) held as under:-

"The principles enunciated in this decision have been reiterated in a number of decisions later but have never been departed from.

According to this decision, Sub-section (2) is 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. It has also been held that where the property is acquired by a Hindu female in lieu of right of maintenance inter al ia, 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 to her prescribes a restricted estate in the property. Applying this principle, it must be held that the suit lands, which were given to Harmel Kaur by Gurdial Singh in lieu of her maintenance, were held by Harmel Kaur as full owner thereof and not as a limited owner notwithstanding the several restrictive covenants accompanying the grant. (Also see the recent decision of this Court in Mangat Mal v. Punni Devi, where a right

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to residence in a house property was held to attract Sub-section A

(1) of Section 14 notwithstanding the fact that the grant expressly conferred only a limited estate upon her.) According to Sub-section (1 ), where any property is given to a female Hindu in lieu of her maintenance before the coinmencement of the Hindu Succession f.d, such property becomes the absolute property of such female B

Hindu on the commencement of the Act provided the said property was "possessed" by her. Where, however, the property is given to a female Hindu towards her maintenance after the commencement of the Act, she becomes the absolute owner thereof the moment she is placed in possession of the said property c

(unless, of course, she is already in possession) notwithstanding the limitations and restrictions contained in the instrument, grant or award whereunder the property is given to her. This proposition follows from the words in Sub-section (1 ), which insofar as is D relevant read : "Any property possessed by a female Hindu .... after the commencement of this Act shall be held by her as full owner and not as a limited owner". In other words, though the instrument, grant, award or deed creates a limited estate or a restticted estate, as the case may be, it stands transformed into an absolute estate E provided such property is given to a female Hindu in lieu of maintenance and is placed in her possession. So far as the expression "possessed" is concerned, it too has been the subjectmatter of interpretation by several decisions of this Court to which it is not necessary to refer for the purpose of this case." F

(emphasis supplied)

17. In view of the aforementioned binding authoritative pronouncements of this Court, we are of the opinion that the pre-existing right of Sundrabai was crystallized by reason of the said consent decree. G

,.,_,, Furthermore there is nothing on record to show that 12 acres 33 guntas of land was the only property belonging to the joint family and thus, she had been granted more lands to which she was not entitled to.

18. In view of the matter, we do not find any infirmity in the impugned

judgment. The appeal is accordingly dismissed with costs. Counsel's fees assessed at Rs. I 0,0001-.

D.G.

Appeal dismissed.