1. The above First Appeals are directed against the judgment and decree dated Dec. 28, 1968, passed by the Civil Judge, Senior Division,Latur, in Special Civil Suit No. 30 of 1965, filed by respondent No. 1 Manik-rao, on April 29, 1965.
2. The allegations made by the plaintiff, in the plaint, may be briefly summarised as under;
The plaintiff was related to defendant No. 1, Sitabai, as per the following pedigree:
NARHARRAO (Died in 1939 A.D)|------------------------------------------| | |Bhujangrao Sitabai Govindrao(Died in 1940) (Deft. No. 1) (died in 1950)|Manikrao(Plff.) 3. The subject-matter of dispute was the land, survey No. 24, measuring 25 acres 27 gunthas, assessed at Rs. 19.72, situated at village Shivoor, in Taluka Latur. The said land was part of the plaintiff's ancestral property, enjoyed during the lifetime of the father of the plaintiff and the husband of defendant No. 1 Govindrao as joint family property.
4. The father of the plaintiff Bhujangrao died, on Feb. 20, 1950. As a result of his death, the surviving family consisted of the plaintiff and Govindrao, who also died as a member of the joint family on Dec. 4, 1950, without leaving any male issue and leaving only defendant No. 1 as his widow. The plaintiff thus claimed to be in enjoyment of the suit property since his minority till 1954 as the sole surviving coparcener till he was dispossessed of the land, with the help of some persons, by defendant No. 1 who, according to him, had no proprietary right and had only the right of maintenance therein.
5. It was alleged in the plaint that the plaintiff was dispossessed in the month of May 1954, since then defendant No. 1 continued to occupy the said land, till the filing of the suit. But in the meanwhile, defendant No. 1 entered into a contract for sale of the land for a consideration of Rs. 25,000 and received Rs. 11,000 by way of earnest money. The defendant No. 1 also executed an agreement of sale and a receipt of Rs. 11,000 on Sept. 15, 1963 at Latur.The plaintiff, therefore, called upon the defendants to restore possession of the land; but the defendant No. 1 was trying to transfer the land in favour of defendants Nos. 3 and 4. Hence the plaintiff filed the suit praying for possession after the defendants refused to deliver possession on April 24, 1965, with mesne profits and costs.
6. The defendant No. 1 by her written statement Ex. 39 resisted the suit contending that the suit property was not part and parcel of the ancestral property of the family of the plaintiff. She did not even admit that her husband died in union with the family or the plaintiff was in enjoyment of the family property till 1954. She denied the allegation that she had no right in the family property or that she had only a right of maintenance in the said property or that she dispossessed the plaintiff of the suit property in May 1954 forcibly.
7. According to her, her deceased husband was the full owner in exclusive possession of the suit property and other properties, and they came in possession of the defendant No. 1, after the death of her husband; and since then, she was in possession and enjoyment thereof. She admitted that she agreed to sell the suit land to the defendant No. 2 but the agreement was revoked. She denied that the plaintiff had asked her to deliver possession and contended that the plaintiff's suit for recovery of possession was liable to be dismissed, particularly when the plaintiff himself pleaded that Govindrao, the deceased husband of defendant No. 1 was holding the suit property exclusively along with the other separate lands before the tenancy authorities and gave evidence on oath to that effect.
8. Defendants Nos. 3 to 5 by their written statement, Ex. 75, reiterated the contentions made by defendant No. 1 and further stated that they entered into the agreement for purchasing the suit land from defendant No. 1; and in fact defendant No. 3 purchased 8 acres out of survey No. 25 for Rs. 6,000/-. The defendant No. 1 executed the registered sale deed in that behalf on May 24, 1966; and since then defendant No. 3 was in possession under the sale deed. Similarly defendant No. 4 purchased 2 acres 13 1/2 gunthas out of survey No. 25 for Rs. 1,125/- under a sale deed dated May 25, 1966 and defendant No. 5 purchased 2 acres out of survey No. 25 for Rupees 1,500/- from defendant No. 1 on May 24,1966; and since then he was in possession thereof. According to them, defendant No. 1 was the full owner of the suit land; and the plaintiff had no right to challenge the transactions in favour of defendants Nos. 3 to 5,
9. The suit proceeded against defendant No. 2 ex parte as he did not file any written statement; and we are told that defendant No. 1 Sitabai is involved in another litigation with defendant No. 2 in respect of the part of the suit property which was agreed to be sold to him; but which agreement, according to defendant No. 1, was cancelled.
10. The learned Judge framed as many as 10 issues on the basis of these pleadings. On behalf of the plaintiff, the plaintiff himself was examined. He also examined the 60 years old Vatandar Patwari of Shivoor, by name Raghvendra Kulkarni; and a 65 years old cultivator, by name Satba Dhangar, who claimed to have cultivated the suit land in 1951-52 and 1953-54 on behalf of the plaintiff after executing a Batai Patrak in favour of the plaintiff 17 1/2 years before he gave evidence; one Nagnath Mahadu Mote, the scribe who had written the Batai Patrak; and one Ram chandra Kulkarni a relative of the plaintiff and defendant No. 1, were also examined in support of the plaintiff's case. Defendant No. 1 examined herself. Defendant No. 4 also examined himself. One Ramrao Suryavanshi of Shivoor who was cultivating the land adjacent to survey No. 24 was examined to show that plaintiff was never in possession of the suit land.
11. The learned Judge considered the said oral and the documentary evidence, produced by the parties, consisting of Pahani Patrak and other entries relating to the land; and held that the suit property was a part and parcel of the ancestral property of the plaintiff's deceased father and his brother Govindrao; that the plaintiff was the sole surviving coparcener of the said family; and that defendant No. 1 failed to prove that her husband Govindrao was separate from the family before his death or was the exclusive owner of the suit property.
12. He, however, came to the conclusion that defendant No. 1 was not only entitled to maintenance but was in Joint possession legally. Although while recording his finding against the issue Nos. 5 and 6 he seems to have recordedthem wrongly simply as 'yes', in the body of the judgment in para, 18, he concluded :
'The plaintiff alleged that he lost his possession of the suit property in 1954 while defendant No. 1 contended that she is in possession of property since the death of Govindrao i.e. since 1950. It is Important to note that the suit is instituted after the application of the new Limitation Act, the suit is based on title and therefore, Article 65 will be applicable. The defendant has not pleaded adverse possession nor her possession will be adverse in spite of length of possession because she is a widow of Joint Hindu Family. In a letter (Ext. 108) written by her to the plaintiff she has stated that she would be required to purchase her own clothes if she does not receive them in time. Then at another place she has stated, she is managing the family as if the uncle of the plaintiff is alive. Taking the purport of the whole letter into account I have no hesitation to find that defendant No. 1 was all along treating the property as family property. If this is so, her possession on the suit property is not illegal though she is not entitled to remain in separate possession.' 13. Similarly the learned Judge recorded a finding with respect to issue No. 6 that defendant No. 1 can be dispossessed of the suit property without making a provision for her maintenance. The said finding is not supported by any reasons in any part of the judgment. Again with regard to issue No. 7, though the learned Judge recorded a finding that the plaintiff proved that he had been dispossessed by defendant No. 1, we do not find anything in the judgment to show any reasons given by him in support of that finding.
14. Notwithstanding the fact that the learned Judge had not framed any issue with regard to Section 14 of the Hindu Succession Act, 1956, the point under Section 14 appears to have been dealt with by the learned Judge in para. 19 on the basis of the arguments made before him. He has observed :--
'Another contention of defendant No. 1 is based on Section 14 of Hindu Succession Act and it is argued that any property possessed by female widow after the commencement of Hindu Succession Act shall be her absolute property. In my opinion the words in the section 'Whether acquired' are important and therefore in order that a widow shall be anabsolute owner of the property possessedby her, she must have 'acquired a right to possess.' Here in this particular case, defendant No. 1 has no right to retain her possession. I was likely to be carried away with a moral consideration that a joint widow cannot be deprived of her possession of a part of the property of the family unless a provision for maintenance is made. But I am told that still she is in possession of other property from village Dhanora from which she can maintain herself. Besides, defendant No. 1 already sold the property to outsiders i. e. defendants Nos. 3 to 5. I, therefore, think these moral considerations should not prevail and in conclusion the plaintiff will be entitled to recover possession of the suit property.' 15. The learned Judge, therefore, passed a decree in favour of the plaintiff and against defendants Nos. 1, 3 to 5 on Dec. 28, 1968. The judgment and decree are challenged by Sitabai defendant No. 1 by filing first Appeal No. 449 of 5909 and by defendants Nos. 3 to 5 by filing First Appeal No. 135 of 1969.
16. On behalf of the appellants it is urged that in the absence of a finding of dispossession; and having regard to the long settled view of this Court that a widow in a joint family cannot be dispossessed without making provision for her maintenance of the property in her possession, the ratio in the decision of the Division Bench of this Court in Bapusaheb v. Gangabai : AIR1972Bom16 and the decision in Radhabai v. Bhimrao (1975) 77 Bom LR 210, applied to the present case; and the view taken by the learned Civil Judge with regard to the applicability of Section 14 of the Hindu Succession Act was contrary to the said decisions.
17. The appellants' counsel did not seriously challenge the finding of the learned Civil Judge that the suit property was not the separate property of Govindrao, the deceased husband of defendant No. 1. But he challenged the finding with regard to dispossession firstly on the ground that no reasons wore given by the learned Civil Judge and secondly because of the admissions made in the cross-examination by the plaintiff himself which show that he came to Court with a false case.
18. In the course of his cross-examination, the plaintiff had to admit as follows:
'In about 1953-54 the old survey No. 15 was changed to survey No. 24. I received a notice about that change and I have produced the copy. Ex. 9/B is the evidence in that behalf. I worked as Patwari of the village Shiradhon from 1955-60 and of the village Shiur from 1956 to 1960. Narharrao in all owned 100 acres of land in three villages viz. Shivur, Sawargaon and Dhanuri as ancestral property. The Dhanuri lands were survey Nos. 10-A, 21-B and 20-A, 22-B, 50-B and 51 from the village Sawargaon and Survey No. 24 from Shivoor is the ancestral property of Narharrao. Survey Nos. 19, 20 and 2l are in my possession and survey Nos. 22 and 23 are in the possession of the purchasers of defendant No. 1. Defendant No. 1 was in possession of survey Nos. 22 and 23 since 1951 till the date of the suit. I have not so far complained about the transaction entered in (the name of?) defendant No. 1 because I have deposed in that way, in some proceeding (Vide Ex. 45/3). It is not correct to suggest that survey No. 19-A from village Dhanuri is in possession of Manohar Dhondiba Kadam. It is not correct to suggest that the defendant No. 1 executed a sale deed in his favour in 1954. My statement was recorded on 11-4-1959 (Ex. 45/3). I have stated therein that survey Nos. 22 and 23 were in possession of Govindrao in the year of his death. I have further stated that I have produced the extract of Pherphar made in the name of defendant No. 1, Ex, 45/4 is a copy of my application dated 24-3-1958. I admit it as true and correct. In the holding register, survey Nos. 22 and 23 of Dhanuri were entered in the name of defendant No. 1 in the year 1061 (Ex. 45/1). In the copy (Ex. 45/2) there is a reference of survey No. 10, but survey No. 10 is not mine. It should be survey No. 19. The copy is correct to that extent. The succession was sanctioned in my name (Vide page 1 of Ex. 95/20). After the death of Narharrao my father made a report about succession and he showed my father and Govindrao are the heirs of Narharrao, vide pages 6 and 7 of Ex. 95/20.' After having entered the land in the name of defendant No. 1 in this fashion, as a Patwari the plaintiff cannot now say that he was dispossessed by the defendant No. 1. The case is further shown to be palpably false as in the examination-in-chief he stated that he was dispossessed during his minority in the year 1954, though he had given his age as 35 in the year 1968 and he would have attained majority in 1951. The finding recordedby the learned Civil Judge that the defendant No. 1 dispossessed the plaintiff is therefore without any rhyme or reason; and we find that there is no baas to support the allegation made by the plaintiff in the course of his evidence that he was dispossessed.
19. Sitabai in her evidence stated in support of her case which has been rightly disbelieved by the learned Civil Judge that there was a partition between Govindrao and Bhujangrao. She admitted that when Bhujangrao died Manikrao was about 12 to 13 years old; and her husband looked after the estate of Manikrao. She also admitted that after her husband's death, Manikrao started proceedings for transferring the watan of Patwari in his name; and in those proceedings started within 3 months after the death of her husband, Manikrao obtained an affidavit from her; and in that affidavit, he had written that the family was joint. The allegations and counter allegations of the parties, in the circumstances, were held by the learned Civil Judge not to be true to facts.
20. The allegations appear to have been made by the plaintiff and defendant No. 1 in proceedings before the tenancy Courts to suit their own convenience without any regard for truth. But it is clear that the suit property was the joint family property in the possession of defendant No. 1. After her husband's death, the plaintiff himself had transferred the land in the name of defendant No. 1 after he became Patwari: and it cannot, therefore, be said that he was dispossessed of the land.
21. The next question is whether the defendant No. 1 became the owner of the suit land under Section 14 of the Hindu Succession Act, which runs as follows:
'14 (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 also any such property held by her asStridhana 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.'
22. In view of the absence of evidence of the alleged partition, there could be no doubt that in this case Sitabai was in possession of the suit land within the meaning of Section 14(1); and, therefore, she became full owner thereof.
23. However, Mr. Deshpande, the learned counsel appearing for the plaintiff Manikrao, submitted that Section 14 has no application to the case because according to him the section is applicable only in the case of a female who was in possession as a limited owner; and having regard to the clear finding that she was not in possession as a limited owner but only as the widow of Govindrao and as plaintiff was the sole surviving co-parcener, he alone was the owner of the suit land. He also submitted that the word 'acquire' in Section 14(1) Explanation means acquisition of proprietary right and not merely a right to maintenance.
24. In support of his argument, the first case which he referred to was the decision of the Supreme Court in Kotturuswami v. Veeravva : AIR1959SC577 . Instead of supporting his argument, in our opinion, it supports the argument on behalf of the appellants that the widow being in possession, in the facts and circumstances of the case, was not only 'possessed of the property,' within the meaning of Section 14, but had also 'acquired,' a right to be in possession, for it is laid down in that case at page 581, para 11.
'......The word 'possessed' is used inSection 14 in a broad sense and in the context possession means the state of owning or having in one's hands or power. It includes possession by receipt of rents and profits.' ........ It is sufficient to 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.'
It was further laid down in that case that 'In the case of Gostha Behari v. Haridas Samantra : AIR1957Cal557 , P. N. Mookherjee J. expressed his opinion as to the meaning of thewords 'any property possessed by a female Hindu'' in the following words:--
'The opening words '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 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 recognized by law but unless the female Hindu, whose limited estate in the disputed property is 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.' 25. In our opinion, the view expressed above by us about the possession of Sitabai is the correct view consistent with the ratio in the above Supreme Court decision, as to how the words 'possessed by female Hindu'' should be interpreted. If we apply the above principles to the facts of the present case, there could be no doubt that Sitabai was possessing the suit land within the meaning of Section 14 of the Hindu Succession Act.
26. Mr. Deshpande then referred as to the decision of the Supreme Court in Eramma v. Veerupana : 2SCR626 where it was laid down that Section 14 was not attracted where the female Hindu was in possession of property, without any right to it. Mr. Deshpande relied on the following observations at page 1882 :--
'..... .The property possessed by afemale 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 Section 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 Sub-section (1) of Section 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. In other words, Section 14(1) of the Act contemplates that a Hindu female who inthe 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 Section 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 Section 14 also refers to acquisition of property. It is true that the Explanation has not given any exhaustive connotation of the word 'property' but the word 'acquired' used in the Explanation and also in Sub-section (2) of Section 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. It does not in any way confer a title on the female Hindu where she did not in fact possess any vestige of title......' 26-A. With profound respect, the ratio in that case was considered by a Division Bench of this Court in Bapusaheb v. Gangabai : AIR1972Bom16 ; and it was observed at p. 417 (of Bom LR) : (At p. 25 of AIR) as follows:
'......That case was not similar to thecase of a widow who was in possession of the property in lieu of her maintenance. The widow therein claimed to be an heir by inheritance under Sections 6 and 8 of the Act although the provisions thereof did not apply to her. She maintained that she was the heir of the deceased and it was in that capacity that she claimed title. She also claimed that as she was in possession of the property at the time when the Act of 1956 came into force, she should be regarded as having enlarged her limited ownership into full ownership. Their Lordships in the 1st instance pointed out that she had no title by inheritance. On the other question, they held that in order that the widow may claim full title under Sub-section (1) of Section 14 she must have some proprietary interest in the property however small it may be. They pointed out that the appellant before them didnot show that in fact she possessed some vestige of title, her mere possession not being sufficient and that possession was held to be the possession of a trespasser. We do not think that that case has any application to the facts of the present case. There is nothing in the award before us to show that Hirabai was regarded as a trespasser when the award was made. Mere allegations and counter-allegations made in the pleadings before the arbitrator cannot be taken into account for the purpose of deciding now whether she was really a trespasser. Nemgonda in his plaint claimed the whole of the property as the last surviving coparcener and requested the arbitrator only to pay maintenance to Hirabai. This was countered by Hirabai by saying that she alone was entitled to the whole of the property and Nemgonda should be granted maintenance. The fact that both of them were saying that the other should get maintenance would go to show that the status of the joint family was not denied and the property also was claimed as joint family property. In a case like this, the position would be that Hirabai was in possession in exercise of her possessory lien over the property as no provision had been made for her maintenance.....
27. In our opinion, the distinction which was made between the ratio in Eramma's case and the facts of Annasaheb's case also comes into play in the facts of the present case inasmuch as here too Sitabai could not be described as a trespasser; but she was admittedly in possession of the suit land after her husband's death; and the sole surviving coparcener, the plaintiff himself, had recognized her possession when he became a Patwari; and further she had a right to be in possession in exercise of the powers of lien as to provision to be made for her maintenance.
28. The learned Civil Judge was not right in taking into consideration the existence of the other lands in her possession and ignoring that her possession was rightful possession for the purpose of Section 14 of the Hindu Succession Act. It is also necessary in this connection to notice the decision of the Supreme Court in Rani Bai v. Yadunandan, : 3SCR789 , where the Supreme Court has observed at page 1121 :--
'.......The Courts in India have takenthe view that where a widow is inpossession of a specific property for the purpose of her maintenance a purchaser buying with notice of her claim is not entitled to possession of that property without first securing proper maintenance for her : (vide Rachawa v. Shivayogapa, ILR (1894) Bom 679. In Yellawa v. Bhimangavda ILR (1894) Bom 452 it was taken to be the settled practice of the Bombay High Court not to allow the heir to recover the family property from a widow entitled to be maintained out of it without first securing a proper maintenance for her out of the property or by such other means as might be deemed sufficient. It is clear from the provisions of the explanation appearing in Section 14 of the Hindu Succession Act that a situation was contemplated where a female Hindu could be in possession of joint family properties in lieu of maintenance. It may be mentioned that after the enforcement of the Hindu Adoptions and Maintenance Act, 1956 the rights of widowed daughter-in-law to maintenance are governed by Section 19 of that Act which, however, could not be applicable. In the present case it is difficult to understand how the appellant could be deprived of the possession of properties by a trespasser. Moreover she was presumably in possession of these properties in lieu of her right of maintenance and could not be deprived of them even by Jungli Bai without first securing proper maintenance for her out of the aforesaid properties.' With respect, the distinction which was made by the Division Bench of this Court in Bapusaheb's case : AIR1972Bom16 appears to be supported by the above remarks of the Supreme Court; and we are bound by the decision in Annasaheb's case. We also agree with it with respect.
29. In the present case, there was no award as in Annasaheb's case AIR 1973 Bom 16; but the ratio of that case expressed in the following terms must apply :--
'In the present case there is a further reason to hold that Hirabai had not only a right to enforce her claim for maintenance against the family properties which was antecedent to the award, but she had also a sufficient possessory title to the lands. She was in possession of the lands after the death of her father-in-law and her husband. That gave her a possessory title which could not have been displaced by the coparcener without making proper arrangement for her maintenance' That is also the view taken in Radhabai V. Bhimrao, (1975) 77 Bom LR 210.
30. Deshpande submitted relying on two other decisions of the Supreme Court Badri Pershad v. Kanso Devi : 2SCR95 and Naraini Devi v. Ramo Devi : 3SCR55 and a decision of the Rajasthan High Court Mohari v. Chukli, that the word 'acquired' must necessarily mean acquisition of ownership, limited or otherwise; and it cannot be said merely because she was entitled to remain in possession till arrangements are made for her maintenance, that she had any ownership right in the land in her possession.
31. It is true that in Badri Pershad v. Kanso Devi : 2SCR95 , the Supreme Court has construed the word 'acquired'. But what the Supreme Court has laid down, with respect, is contrary to the contention raised by Mr. Deshpande, because the Supreme Court has laid down at page 1966 :--
'The word 'acquired' in Sub-section (1) has also to be given the widest possible meaning. This would be so because of the language of the explanation which makes Sub-section (1) applicable to acquisition of property by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or by a female's own skill or exertion or by purchase of prescription or in any manner whatsoever. Where at the commencement of the Act a female Hindu has a share in joint properties which are later on partitioned by metes and bounds and she gets possession of the properties allotted to her there can be no manner of doubt that she is not only possessed of that property at the time of the coming into force of the Act but has also acquired the same before its commencement.' 32. With respect, applying the said principle to the present case, it is clear that Sitabai who continued to be in possession of the suit land, after the death of her husband, was in such possession is a member of the joint family though the plaintiff remained the sole surviving coparcener on the death of her husband. We are unable to find anything in Badri Pershad's case : 2SCR95 decision to support the argument of Mr. Deshpande that the possession by the female must be as that of an owner or as a limited owner.
33. In Naraini Devi v. Ramo Devi : 3SCR55 , the facts were,with greatest respect, again distinguishable because in that case one Ramo Devi, widow of Kapur Chand obtained a money decree against her husband's brother Nemi Chand. In execution of her decree she got attached one-half share in the double storeyed house situate in Agra representing it to be of the judgment-debtor. Smt. Naraini Devi, widow of Hira Lal, filed an objection petition under Order 21, Rule 58, Code of Civil Procedure, against that attachment claiming the house to be her property. That objection was dismissed by the executing Court on July 16, 1962.
34. Thereafter she filed a suit under Order 21, Rule 63 to establish her claim. The suit was decreed by the trial Court but reversed by the District Court; the decree of the District Court was confirmed by the summary dismissal of the appeal by the High Court; and a review application filed by her was also rejected.
35. In an appeal by special leave, the Supreme Court observed at page 2199 :--
'Mr. Goyal however, submits that her case would fall within this Court's ruling in Badri Pershad v. Kanso Devi : 2SCR95 according to which, if the widow has a pre-existing right in the property, then the case will fall under Sub-section (1) and Sub-section (2) which is in the nature of a proviso to Sub-section (1) of Section 14 will not be attracted. The rule in Badri Pershad's case is not applicable here. In that case the widow had acquired a share in the property by virtue of the Hindu Women's Rights to Property Act, 1937, on the death of her husband, which took place after the coming into operation of that Act. In the present case, Smt. Naraini Devi's husband died in 1925. In the presence of her sons, the widow did not get any share or interest in the house left by her husband under the Hindu Law as then applicable. In short, she had no pre-existing right or interest in the house in question.' 36. With profound respect, the observations there are not attracted to the facts of the present case in which Sitabai had an interest which was aptly described in Bapusaheb's case : AIR1972Bom16 as stated above, as 'a possessory title which could not have been displaced by the coparcener without, making arrangement therefor.' So far as Bombay High Court is concerned, it has been the uniform practice of this Court since 1883 Printed Judgments p. 48. which is re-lied upon in Yellawa v. Bhimangavda ILR (1894) Bom 452, not to allow the heir to recover the family property from a widow entitled to be maintained out of it without first securing a proper maintenance for her out of the property or by such other means as might be deemed sufficient.
37. This, in our opinion, would constitute possession 'acquired' within the meaning of Section 14 of the Hindu Succession Act; and, therefore, the view taken by the learned Civil Judge in this case that though Sitabai was entitled to maintenance, Section 14(1) was not attracted must be held to be inconsistent with the provisions of Section 14 of the Hindu Succession Act, as interpreted by the Division Bench of this Court in Bapusaheb's case : AIR1972Bom16 with which, with respect as already stated, we agree.
38. Mr. Deshpande submitted that the view taken by the Division Bench of this Court is not correct; and the proper interpretation of Section 14 has been done in Mohari v. Chukli, . But there is nothing in that case which would support the argument of Mr. Deshpande, because that was a case where the interest of a deceased coparcener had passed by survivorship in 1946; his widow was turned out of the family by the surviving coparcener, and was not in possession of her husband's share at the commencement of the Act; and in those circumstances the Division Bench of the Rajasthan High Court held that Section 14 of the Act could not be invoked by her in support of her claim for partition of her husband's share.
39. So far as the present case is concerned, there could be no doubt that even on the statement of Manikrao in the examination-in-chief Sitabai was, during his minority, acting as the guardian of the plaintiff himself; and there is hardly any evidence to show that she dispossessed the plaintiff. On the contrary, as stated above the plaintiff himself has admitted her possession; and made an entry in the Pahani Patrak to show that she was in possession. Mr. Deshpande submitted that as this was neither the case of the plaintiff nor of the defendants in the pleadings, a further opportunity should have been given to the plaintiff before coming to the conclusion that, even if she was in possession of the joint family property including the suit property, she would become owner under Section 14 of the Hindu Succession Act.
40. It is difficult to understand whatfurther opportunity requires to be given to the plaintiff. Even in Bapusaheb's case : AIR1972Bom16 , there were allegations and counter-allegations which were not held proved. But mere allegations and counter-allegations cannot be the basis of a finding by the Court. It is clear from the oral and documentary evidence in the record that the plaintiff and the defendant No. 1 have solemnly made some versions against their present versions in revenue proceedings such as Ex. 107, the statement of the plaintiff recorded by the Tenancy Tribunal on March 24, 1958 wherein he stated that Sitabai was heir of Govindrao and Govindrao was separate since long. Ex. 166 is another statement of plaintiff in which he has stated that Survey Nos. 22 and 23 from village Dhanora belonged to Sitabai thereby indicating that Sitabai owned the lands which were formerly the family lands.
41. As against this, defendant No. 1 also made a statement against her present plea of separate property, in an affidavit made by her on Feb. 21, 1952, before the Tahsildar, Latur, in an enquiry into the succession to the estate of Govindrao. In Exh. 150, defendant No. 1 stated on oath that Govindrao died leaving behind him herself as his widow and his real nephew, the plaintiff, who were the members of the joint Hindu family of her deceased husband.
42. Whatever may be the purposes for which the diverse statements were made by the parties prior to the present suit, those admissions or statements cannot be said to be conclusive; and the Court has to decide the matter on the basis of not only those statements in other proceedings but also the evidence led by the parties. We have already referred to the admissions made by the plaintiff in the cross-examination which clearly show that the plaintiff had no pangs of conscience when making any kind of statement, suitable to him, with respect to the suit property. In the facts and circumstances of the case, therefore, it cannot be held that defendant No. 1 had not dispossessed the plaintiff but she was in possession thereof after the death of her husband; and she continued in possession thereof right upto the time when she wanted to alienate the suit properties i.e. till the institution of the suit.
43. Even though the plaintiff appears to have attained majority sometime in 1951, he never challenged the possessionof the defendant No. 1, as unlawful till he filed the present suit in 1965. In the circumstances, it must be held that the possession of Sitabai was lawful possession for the purpose of Section 14 of the Hindu Succession Act; and she became the full owner of the suit property.
44. In the result, the decree passed by the learned Civil Judge on the basis that defendant No. 1 was not the owner; and she had no right in the suit property must be set aside, for the reasons stated herein above.
45. The appeals are allowed withcosts; the judgment and decree passed bythe Civil Judge, Senior Division, Latur,on Dec. 28, 1968 are set aside; and theplaintiff's suit is dismissed with costs.
46. Appeals allowed.