1. The respondent-plaintiff's suit for declaration that she has become the absolute owner of the house property in dispute has been decreed by the Civil Judge, Senior Division, Thana. The validity of this decree is challenged by the defendant in this First Appeal. There is practically no dispute about the facts in this case. One Trim-bak had two sons -- Vishwanath and Bhikaji. Vishwanath predeceased Trim-bak leaving behind him his two sons Ramchandra, the defendant-appellant, and Laxman. Plaintiff Savitribai was married to Bhikaji in the year 1928 when the entire family was joint. In the month of October, 1928, sometime after her marriage, Ramchandra and Laxman separated, taking with them their shares in the property from Trimbak. Bhikaji, husband of Savitribai, died on 19th September, 1929. Savitribai appears to have stayed with her parents till 1942, in view of her age. Trimbak executed a will and got it duly registered on or about 7th June, 1930, making provisions for the maintenance of his own wife as also his widowed daughter-in-law, both in the event of their choosing to reside in the family house or choosing not to so reside therein for some reason or the other. Ramchandra, the appellant, was virtually appointed as executor of the will. The will contains a detailed description of the property given earlier in partition to Ramchandra and Laxman as also the property he still held, and sought to be disposed of under the said will. No disposal of the house in dispute is indicated under the will obviously because of the undoubted right of residence of his own wife as his only heir and the need to provide for the residence of the plaintiff Savitribai which appear to have 'been clearly assumed. In fact, after the separation of Ramchandra and Laxman in the month of October, 1928, and the death of the only other son Bhikaji, in the year 1929, his wife Sagunabai was entitled to inherit his entire property including the house as life estate, with the burden of plaintiff's right of residence, and maintenance, but for the contrary provisions made under the will in dispute by Trimbak. Trimbak died on or about 10th January, 1935, while Sagunabai died on or about 18th February, 1939.
2. After the return of plaintiff Savitribai to Bhiwandi and residing in the family house, she felt the inadequacy of quantum of maintenance of Rs. 40/-per month provided under the will in view of the then rising prices. On her making claims to that effect, a settlement in writing was reached between Ramchandra and Savitribai on 12th August, 1945. Ramchandra agreed to pay Rs. 100/- per month and 25 mounds of rice every year. He also allowed her to use the entire house and lease some portions thereof to the tenants if needed for the company and appropriate rent so received to herself. She also was to pay taxes and effect the required repairs. There is a dispute if she was till then residing only in three out of the several rooms of this family house. But the same is irrelevant to the point under consideration. This arrangement continued till the enforcement of Hindu Succession Act (hereinafter referred to as 'the Act') on 17th June, 1956.
3. It is not in dispute that the family was possessed of extensive properties, Though there is no specific pleading or direct evidence about this being the ancestral or joint family property in the hands of Trimbak at the time when Savitribai was married in the family, the circumstances that Ramchandra and Laxman, were allotted portions of the properties in the partition by Trimbak in October, 1928, i.e. after the marriage of the plaintiff, itself indicates that the property so partitioned and thereafter left with Trimbak, was joint family property. The manner in which the property so partitioned and left with Trimbak is referred in his will dated 7-6-1930 by Trimbak also fortifies this view. The contrary contentions raised in this behalf by Mr. Tipnis are devoid of any merits. The position thus that emerges from these admitted facts is that after the death of Bhika.ii on 19th September, 1929, the joint family of Trimbak consisted of Trimbak himself, his wife Sagunabai and widowed daughter-in-law the plaintiff, with extensive joint family properties which were disposed of under the will of 1930 by Trimbak, recognising the right of residence of both these women and also making provision for the maintenance of each at the rate of Rs. 40/- per month.
4. The legal position as to the rights of the widowed daughter-in-law like the plaintiff whose husband died on 19th September, 1929, in the ancestral or joint family property in the hands of her father-in-law admits of no doubt. She was entitled to the right of residence in the family house as also maintenance out of the joint family property held by Trimbak at the time of the death of his son Bhikaji.
5. The learned trial Judge accepted the claim of the plaintiff of her having become the absolute owner of the house, her case being found to have been covered not by Section 14(2) but by Section 14(1) of the Act notwithstanding the terms of the will of 1930 and agreement of 1945, indicating as if these were the sources of her right of residence. According to the trial Judge, this right was conferred on her by the Hindu Law, as it then existed, and mere reference thereto in these documents virtually by way of recognition cannot make the documents a source of her such right.
6. A reference to the settled legal position in regard to some rights under the Act may facilitate appreciation of the points raised in this appeal. Now, under the uncodified Hindu Law, rights of the women in the property were subjected to several restrictions, limitations and discriminations in view of the then notions of the law-makers about the incapacity of the women to manage, protect and preserve the properties and their pliability at the hands of unscrupulous relatives or friends. The Act of 1956 aims at eliminating, this approach of distrust against the women as a whole as also discriminatory treatment conceived thereunder for them. Sub-section (1) of Section 14 makes all women absolute owners of the properties which they possessed as 'limited owner' on the date of the enforcement of the Act according to the then Hindu Law. The properties inherited by widows as heirs of their husbands dying as sole surviving member of the family or, acquired by them in partition under the Hindu Women's Right to Property Act of 1937 in the event of their husbands dying as a member of the joint family, obviously fell in this category. Explanation to Sub-section (1) brought several other acquisitions of these women also within the fold of this Sub-section declaring the women to have become absolute owner thereof with the enforcement of the Act.
7. Sub-section (2), however, seeks to keep such other limitations and restrictions untouched as were not the creatures of the pre-existing Hindu Law but were intentionally imposed on them, independently thereof, by the grantors of the properties, while making the grant out of love or some other considerations, in which property the grantee women did not possess any such prior legal rights. However, more often than not, the women were driven to litigation or arbitration or seek intervention of third parties in view of the disadvantageous situation in which they were socially placed, to enforce even their such restricted rights. This would invariably result in bringing into existence identical instruments referred to in Sub-section (2) of Section 14 of the Act, incorporating such restrictions also in them to which the women's rights were already subjected under the law. This section is not happily worded and does not make any express distinction between the instruments coming into existence under these two different sets of circumstances. It gave rise to doubts as to its true interpretations -- whether instruments covering pre-existing rights could also fall under Sub-section (2). However, it is now well settled that the widows become absolute owners of their such properties and more recourse to instruments referred to in Sub-section (2) in spite of preexisting legal rights does not exclude their claim being governed by Sub-section (1).
8. Some women in the joint family such as widows, were entitled to be maintained out of the joint family property, if there existed any. We are not concerned here with the right of maintenance of the few women personally against their husband, fathers or sons, etc. arising out of sheer relationship. Such rights against the joint family property invariably came to be covered by the instruments referred to in Sub-section (2) emphasising the limitation to which such rights were subjected under the then existing Hindu Law. Judicial opinion was sharply divided whether properties so allotted under such instruments were covered by Sub-section (1) and the widow's possessing the same on the date of enforcement of the Act could claim to have become absolute owners thereof. Doubts on this point cannot be said to be wholly without some basis. This right, though enforceable against such joint family property, was not considered to be an interest, or right in such property. The question of their claiming to have become ever limited owner thereof was almost a cry in wilderness. This right also suffered from several other infirmities including inability to prevent alienation of such property unless the maintenance claim was already made a charge thereon under an instrument or decree before such alienation or alienee had notice of such claim.
9. Notwithstanding these infirmities in the case of Yamunabai Gangadhar Kharade v. Parappa Sadashiv Kajmane (1968) 70 Bom LR 611', this High Court held such claims to have been covered by Sub-section (1) of S. 14 of the Act and declared the widows to have become absolute owners thereof on the enforcement of the Act with effect from 17th June, 1956 for the reasons indicated therein. This view of the single Judge was later affirmed by the Division Bench of this Court in Annasaheb Bhausaheb Patil v. Gangabai Annagonda Patil : AIR1972Bom16 , and now by the Supreme Court in V. Tulasamma v. V. Sesha Reddi AIR 1977 SC 1944 expressly affirming the reasoning of Palekar, J. in Annasaheb Bhausaheb Patil's case (supra).
10. This view does not in any manner seek to underestimate the infirmities with which such right suffered, and adverted to earlier. This view, however, is based on the fact that Joint family property was in fact burdened, if not actually 'charged' with right of maintenance of all the women in the joint family. It also seeks to give effect to the Legislative intent reflected in the Explanation to Sub-section (1) of enlarging their interests and rights in or to the property, possessed by them on the date of enforcement of the Act, howsoever limited or small in extent, these mav be, and of making them absolute owners thereof. Express reference to the properties allotted to them in lieu of maintenance in the Explanation itself is almost conclusive of the controversy as whether such weak and infirm rights in terms could fall under Sub-section (1) at all. It will presently be shown how the Explanation seeks to expand the notion of limited ownership referred to in Sub-section (1). These women's being forced, to get their such pre-existing and antecedent rights incorporated in the instruments referred to in Sub-section (2) and to accept the properties with the limitation indicated in such instrument because of their social disabilities, could not, according to this view, take such cases out of the purview of Sub-section (1) and prevent the woman from becoming full owner thereof.
11. Mr. Tipnis, the learned advocate appearing for the appellant, with his usual fairness and clarity steered clear of all these decided points, and did not try to press them before us at all. He, however, contends that, maintenance for the plaintiff having been separately provided for, both in the will and the agreement, house in dispute cannot be said to have been allotted to the plaintiff 'in lieu of maintenance' to attract the ratio of the Supreme Court judgment in V. Tulasamma's case AIR 1977 SC 1944 (supra). Neither the right of women in the joint family of, mere residence, in family property amounts to 'property', so contends Mr. Tipnis, nor getting any property or portion thereof in discharge of this right can amount to 'acquisition' of any 'limited ownership' in any such property, within the meaning of Section 14(1) of the Act to warrant its application.
12. That, the maintenance of both the women is separately provided for in the will and the agreement does not admit of any dispute. The right of their residence is not expressly referred to in the will. However, maintenance provision in the will itself is based on the assumption and recognition of possible exercise of such right of residence by the women, while the agreement of 1945 specifically allots this house to the plaintiff independently of the provision for maintenance. Mr. Abhyankar, the learned advocate for the respondent, drew our attention to the terms of the agreement under which the plaintiff is permitted, for the first time, to induct tenants in other parts of the house nor actually occupied by her till then, and to appropriate rents so recovered from them to herself, contending that this makes the allotment of the house also in lieu of maintenance. Mr. Tipnis, however, is right, in our opinion, in contending that the permission to introduce the tenants is actuated, as emphasised in the agreement itself, by an anxiety to enable the plaintiff to have the company of neighbours in that large house, rather than to supplement the amount of maintenance. The house cannot, therefore, be said to have been, strictly speaking, allotted to the plaintiff in lieu of maintenance as such.
13. We are, however, not prepared to concede that the right of residence is wholly divorced from the right of maintenance. In fact the right of residence is merely an incidence of right of maintenance and it is difficult to conceive of maintenance being confined and restricted merely to the food and exclude the clothing or the shelter from the conception thereof. Merely because cash amount is paid sometimes, by way of maintenance, without providing for any place of residence does not and cannot mean that it is meant merely to cover food and not clothing or shelter. In our opinion, maintenance includes clothing, shelter and every other amenity indispensable for the living and subsistence of the women concerned and separate reference thereto, in the text of the Hindu Law or instrument cannot make any difference to the legal position that these form the integral parts of conception of maintenance itself.
14. Even if right of residence is treated as separate from the right of maintenance for the sake of argument, the same does not make any difference to the legal position here, as the explanation to Section 14(1) of the Hindu Succession Act is wide enough to cover acquisition of property not only by way of maintenance but also 'in any other manner whatsoever'. It is difficult to see why acquisition of the house property by the plaintiff for residence, should not be covered, at any rate, by this phraseology. Such right of residence, assuming the same to be different from the right of maintenance, suffers from the same infirmities. The property allotted towards right of residence and one in lieu of maintenance qualitatively and legally stand on the same footing and it is difficult to see any basis for different treatment of the same under the scheme of Section 14(1) of the Act.
15. It is true that, strictly speaking, acquisition of the house in satisfaction of the right of residence, cannot amount to acquisition of any ownership, limited or otherwise, therein. Such right being on par with, if not the part of right of maintenance is subjected to the same limitation and disabilities as the right of maintenance itself. By introducing Explanation to Section 14(1) of the Act the' Legislature has, however, expanded the notion of 'ownership' and the connotation of the word 'limited owner' in the main Sub-section (1). The Explanation apparently seeks to indicate what the word 'property' In Sub-section (1) means. Close reading thereof in the context, indicates, however, that emphasis is not so much on the word 'property' as on the several modes by which the same, was open to acquisition by the women: with limited interest therein or thereto. Hindu woman is sought to be made the absolute owner of the property under Section 14(1) acquired toy her fay any one of these several modes, detailed in the Explanation, on the statutory assumption that the woman is the limited owner of the property, acquired by her under any of these modes, though in point of fact, such acquisition may not amount to ownership in any sense, or even an interest therein, but amounts only to some interest or right to the property. In all the reported judgments the word 'limited owner' is assumed to mean 'limited interests or limited rights'. In other words, Hindu woman is assumed to 'have acquired limited ownership under this statutory fiction even in properties allotted to her in discharge of her mere right of residence or in lieu of her right to maintenance, though in fact such acquisition happens to be only of some right or interest, not in, but to, the same and she is expressly then declared to have become absolute owner thereof on this footing. Plaintiff thus must be deemed to have been a limited owner of the house property in dispute allotted to her towards her right of residence under the fiction introduced under the Explanation and to have become absolute owner thereof in terms of the specific mandate under Section 14(1). That the house came to be allotted to her under the agreement of 1945 by itself is not enough to make Sub-section (2) applicable in view of her pre-existing right of residence therein.
16, Mr. Tipnis then contends that the right of residence of the plaintiff under the Hindu Law could not have extended to the entire house. She could legally claim, only reasonable portion thereof and she can be deemed to have become absolute owner, only of such portion. Plaintiff cannot claim absolute ownership of the larger portion allotted to her, so contends Mr. Tipnis almost gratis in 1945, without reference to the extent of her right of residence. It must be conceded that as a matter of law, the contention of Mr. Tipnis is not without some substance. No woman in a joint family can claim right of residence, as of right over the entire family property in disregard of the identical claims of other women and higher rights of other members of the family. She could have claimed only a reasonable portion and then claim to have become absolute owner only thereof under the Act. She cannot claim absolute ownership of any other portion that came into her possession independently of her such legal right out of other considerations. In the present case, however, no facts are pleaded, much less proved, indicating as to what precisely was the total extent of the property and to which smaller portion alone she could have laid her claim. It is alleged that she was in occupation of only three rooms till 1945 and other portions of the house were given to her only under the agreement of 1945. Apart from this fact, itself being disputed, there is no material placed or proved to justify our conclusion that her right to residence could not have extended to the entire house. Mere circumstance that she was permitted to have tenants as neighbours in 1945 indicates that till then her right to other portion was not recognised and not that she was not so entitled. Reference to the properties in the will indicates that the family was possessed of extensive estate. In the absence of any contrary material, her claim to have right of residence extended to the entire house and of her becoming absolute owner thereof cannot be resisted. The decree in favour of the plaintiff, therefore, does not call for any interference.
17. Plaintiff is deprived of the costs of the suit by the trial Judge. Plaintiff has challenged this part of the decree in cross objections. We are unable to see why the plaintiff should have been denied the costs. Mr. Tipnis could not show any good reason why usual rule of costs following the result should not be followed. The cross-objections, therefore, deserve to be allowed.
18. Appeal thus fails.
19. Cross-objections allowed.
20. The plaintiff will get her costs throughout.
21. Appeal dismissed;Cross-objections allowed.