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Bapusaheb Bhausaheb Patil and anr. Vs. Gangabai and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai High Court
Decided On
Case NumberA.F.O.D. No. 895 of 1968
Judge
Reported inAIR1972Bom16; (1971)73BOMLR407
ActsHindu Succession Act, 1956 - Sections 14(1) and 14(2); Hindu Women's Rights to Property Act, 1937; Hindu Law
AppellantBapusaheb Bhausaheb Patil and anr.
RespondentGangabai and ors.
Respondent AdvocateN.S. Shrikhande, ;L.G. Khare and ;K.J. Abhyankar, Advs.
Excerpt:
hindu succession act (xxx of 1956), section 14 - widow under award decree allotted joint family property for life in lieu of maintenance before coining into force of hindu women's rights to property act, 1937--widow in possession of this property on date of passing of hindu succession act--whether widow a full owner of property on such date--applicability of section 14(2)--hindu women's rights to property act (xviii of 1937).;the widow of a coparcener who died before the coming into force of the hindu women's rights to property act, 1937, was put in possession of certain joint family property for her lifetime in lieu of maintenance under an award decree passed in 1903. her right to alienate the property was confined to raising of a loan on the security of the property for the purpose of.....1. this is an appeal by the plaintiffs whose suit for possession has been dismissed by the learned joint civil judge senior division, kolhapur. the suit was for the recovery of possession of some agricultural lands and a house in village shrati in kolhapur district. the lands are about 35 acres in extent and are assessed to land revenue of rs. 211-5-9.2. the plaintiffs and defendant no. 1 are the daughters of one appa alias jingonda and their mother's name was hirabai. appa was the only son of one devgonda. devgonda had a brother named jingonda, who appears to have been deaf and dumb. defendants nos. 2 to 6 are the grand-sons of this jingonda, being the sons of nemgonda alias balgonda.3. jingonda died sometime before devgonda leaving behind him his son, nemgonda alias balgonda. in about.....
Judgment:

1. This is an appeal by the plaintiffs whose suit for possession has been dismissed by the learned Joint Civil Judge Senior Division, Kolhapur. The suit was for the recovery of possession of some agricultural lands and a house in village Shrati in Kolhapur District. The lands are about 35 acres in extent and are assessed to land revenue of Rs. 211-5-9.

2. The plaintiffs and defendant No. 1 are the daughters of one Appa alias Jingonda and their mother's name was Hirabai. Appa was the only son of one Devgonda. Devgonda had a brother named Jingonda, who appears to have been deaf and dumb. Defendants Nos. 2 to 6 are the grand-sons of this Jingonda, being the sons of Nemgonda alias Balgonda.

3. Jingonda died sometime before Devgonda leaving behind him his son, Nemgonda alias Balgonda. In about 1902 Devgonda and his son Appa went on a pilgrimage. When they were on the pilgrimage Devgonda died first in 1902 and Appa soon thereafter. So, Devgonda's branch in 1902 consisted of Appa's widow Hirabai and her three daughters viz., the plaintiffs and defendant No. 1. It appears that the two brothers Devgonda and Jingonda were members of a Hindu joint family and it can, therefore, be said that after the death of Devgonda, Jingonda and Appa, the only male member of Hindu joint family was Nemgonda alias Balgonda. All the properties of the family, many of which had been acquired by Devgonda, were in the possession of Devgonda's branch, and, naturally, on death of Devgonda and Appa in 1902, Hirabai came into possession of all the agricultural lands belonging to the family and also the houses. Disputes arose between Nemgonda and Hirabai and the same were referred to an Arbitrator, who gave his award on 15-10-1903. This award was filed in Court and a decree in terms of the award was passed on 24-10-1903. Broadly, the result of this decree was that, out of about 130 acres of lands and six houses and house sites, 65 acres of lands and one house were allotted to Hirabai. Out of the 65 acres, 30 acres were ear-marked for the provision of maintenance and marriage of the three daughters and the rest of the property was ordered to be retained by Hirabai for life with certain restrictions. The 30 acres of lands given to the daughters were by way of absolute gift. But, so far as the lands allotted to Hirabai were concerned, they were to be in her possession only for her lifetime whereafter they were to revert to Nemgonda.

4. Accordingly, the daughters obtained possession of their thirty acres and there is no dispute about them before us. The dispute is confined to the remaining thirty five acres and the house. Hirabai was in possession of this property, which is the subject-matter of the suit, till her death on 25-2-1967. At that time Nemgonda was dead and his sons, viz., defendants Nos. 2 to 6, were in the village. They got their names entered in the revenue records in respect of this property and obtained possession of the same.

5. The plaintiffs, who are two daughters out of the three daughters of Hirabai, filed this suit for possession of these properties claiming title to the same through Hirabai. They alleged that Hirabai, who was the limited owner of these properties under the award, had become the full owner of the same after the commencement of the Hindu Succession Act, 1956 and, therefore, the two plaintiffs and their sister, defendant No. 1, were entitled to succeed to the properties of their mother after her death. They further alleged that the suit properties had been allotted to Hirabai by the award in lieu of maintenance.

6. Defendants Nos. 2 to 6 contested the suit and the principal contention with which we are now concerned is, whether Hirabai got full ownership of these properties after the commencement of the Hindu Succession Act, 1956. It is not disputed that if Hirabai is held to have become the full owner of the properties by reason of Section 14 of the Hindu Succession Act, 1956 (hereinafter referred to as the Act), the plaintiffs and defendant No. 1 would be her heirs and, therefore, entitled to the possession of the said properties. On the other hand, if Hirabai had not become the full owner of the properties, her estate being limited to her lifetime, then under the terms of the award the suit properties were liable to revert to Nemgonda and his branch in which case defendants Nos. 2 to 6 would be entitled to the suit properties. The learned Civil Judge held that by reason of the award decree dated 24-10-1903, Hirabai was merely constituted a limited owner of the properties for her lifetime within the contemplation of Section 14(2) of the Act and, therefore, neither the plaintiffs nor defendant No. 1 was entitled to those properties. It is on that ground that he dismissed the suit.

7. The plaintiffs have, therefore, come in appeal and Mr. Shah, appearing on their behalf, submits that the learned Civil Judge erred in holding that the case fell within Section 14(2) instead of Section 14(1) of the said Act. His contention is that by reason of the award-decree Hirabai was constituted a limited owner and as she was in possession of these properties at the commencement of the Act, she became the full owner thereof. Mr. Shah further contended that sub-section (2) of Section 14 of the Act had no application to this case, because the award-decree did no more than define and recognize Hirabai's right to the family properties for her maintenance. According to Mr. Shah, the said sub-section comes into play only when a restricted estate has its origin, for the first time, in the grant, decree or award, and the grant, decree or award do not merely give expression to a pre-existing or antecedent right to or against the family properties. On the other hand, it is contended by Mr. Shrikhande, appearing on behalf of the contesting respondents, that the learned Judge was right in holding that the case fell within sub-section (2) of Section 14 of the Act and not sub-section (1) thereof. That is the only point at issue before us.

8. Section 14 of the said Act is as follows :

'(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 as stridhana 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'.

The object of this particular enactment is clear. The object is to assure equality of rights to property to all Hindu males and females and to remove the artificial disparity in the capacity to hold property imposed by the Hindu Law on the Hindu female. In circumstances where a Hindu male was entitled to obtain full ownership of the property, a Hindu female could not be condemned to hold property as only a limited owner because of the restrictions imposed on her by the Hindu Law. On the other hand, where in circumstances it was lawful for a Hindu male to hold property as only a limited owner it was not the intention of the legislature that a Hindu female should hold the property as a full owner. Sub-section (1) of Section 14 of the Act takes care of the former while sub-section (2) takes care of the latter.

9. For the purpose of sub-section (1) we must be concerned with property which is in the possession of a Hindu female after the commencement of the Act of 1956. That Act came into force on 17-6-1956. If such property was acquired by her, whether before or after the commencement of the said Act, it would be held by her as a full owner and not as a limited owner in spite of the restrictions placed by the Hindu Law. Then there is an explanation of the word 'property' referred to in sub-section (1). By this explanation all kinds of properties are attempted to be included in sub-section (1). Though the explanation purports to give an inclusive meaning of the word 'property' it is really an exhaustive explanation, because after enumerating the various kinds of properties acquired by a Hindu female, traditionally mentioned in all the text books on Hindu Law, the explanation includes property acquired by a Hindu female 'in any other manner whatsoever'. To make the explanation all pervasive it also includes property held by a Hindu female as stridhana, because although it is well known that under the Hindu Law stridhana property is the property of the female with absolute ownership therein, under certain schools of the Hindu Law a few types of properties though regarded as stridhana are not disposable by the wife without the consent of her husband. The explanation, thus, brings under its purview all properties traditionally acquired by a Hindu female in which merely by reason of the incidents of the Hindu law she has limited ownership. In other words, sub-section (1) read with this explanation provides that any property, howsoever acquired and in possession of a Hindu female after the commencement of the Act shall be held by her as a full owner in all cases where she formerly held merely limited ownership. As a matter of fact, this sub-section proceeds on the basis that there are several categories of properties of which a Hindu female, under the provisions of the Hindu Law, is merely a limited owner. By this enactment her rights are enlarged and wherever under the Hindu Law she would merely obtain limited ownership, she would, after the commencement of the Act obtain full ownership.

10. Sub-section (2) of Section 14 of the Act comes by way of exception as is clear from the words with which the sub-section itself commences. If sub-section (1) had stood alone, a Hindu female would obtain full ownership in all properties however partial or limited interest in them a grant may create in her favour. If, for example, by a will or a gift a life interest is created in her favour with the remainder vesting in another, sub-section (1) would have the effect of making her the full owner thereof and destroy the remainder. This result, however, is not intended. In similar circumstances, a life interest created in a Hindu male would give him no more than a life interest and it would impair the principle of parity of rights between the Hindu male and female, if a similarly worded grant gives a Hindu male a life interest but a Hindu female an absolute estate. To prevent this anomaly sub-s. (2) is enacted. It emphasized that in all cases where a grant can lawfully create a limited estate in favour of a Hindu male grantee, it can equally do so in the case of a Hindu female grantee and the general rule of sub-section (1) would have no application. It is in that sense that sub-section (2) is read as an exception to sub-section (1).

11. There is consensus of judicial opinion with regard to the ambit of sub-s. (2) of S. 14 of the Act. It covers only those cases of grants where the interest in the grantee is created by the grant itself or, in other words, where the gift, will, instrument, decree, order or award is the source or origin of the interest created in the grantee. Where, however, the instruments referred to above are not the source of interest created but are merely declaratory or definitive of the right to property antecedently enjoyed by the Hindu female, sub-section (2) has no application; and it matters not if in such instruments it is specifically provided in express terms that the Hindu female had a limited estate or that she shall not alienate the property or that the property would revert on her death to the next reversioner such terms are merely the reiteration of the incidents of the Hindu Law applicable to the limited estate. (see P. Pattabiraman v. Parijatham Ammal : AIR1970Mad257 , and the cases referred to in paragraphs 2 and 3 of that judgment).

12. It, therefore, follows that in cases arising out of the Hindu Women's Rights to Property Act, 1937, which on the death of a coparcener gave a Hindu widow a share in the coparcenary property, the Hindu woman's limited estate would be enlarged into full ownership in spite of any subsequent instrument, award or decree declaring or redefining her rights as a limited estate. (See Raghunath Sahu v. Bhimsen Naik : AIR1965Ori59 ; Sasadhar Chandra v. Tara Sundar : AIR1962Cal438 ; Sampathkumari v. Lakshmi Ammal : AIR1963Mad50 and Lachhia v. Ram Shankar : AIR1966Pat191 ).

13. In cases where a coparcener died before the Hindu Women's Rights to Property Act, 1937 came into force, the widow did not have normally a share in the joint family property but only a right to be maintained out of the joint family property. In numerous instances this right was assured to her by allotting property to her for life whether under an instrument, award or decree or even by an oral arrangement. The difficult question which arises in such a case is whether the widow in possession of such properties on the date of the commencement of the Act of 1956 gets full ownership to these properties under sub-section (1). There is divergence of judicial opinion on this question between the various High Courts, some holding that she does and other holding that she does not. And that is the precise question which arises in the present case. Those cases which hold that the Hindu female gets full ownership proceed on the footing that a right to be maintained from the family property is a right crystallised, declared and recognised in the instrument, award or decree, having been in existence antecedent to those documents, and hence not covered by sub-section (2) of Section 14 of the Act. (See Yamunabai Gangadhar v. Parappa (1968) 70 Bom LR 611; Gadam Reddayya v. Venkataraju, : AIR1965AP66 ; Sumeshwar v. Swami Nath : AIR1970Pat348 and Sharbati Devi v. Hiralal AIR 1964 P&h; 114.

14. Other cases hold that her right to be maintained out of the family property was not 'a right to property' which, according to them, she gets for the first time under the instrument, decree or award and hence she falls under sub-section (2) of Section 14 of the Act. (See Gurunadham v. Navaneethamma : AIR1967Mad429 and Narayan Patra v. Tara Patrani : AIR1970Ori131 ).

15. The first question for decision is whether Hirabai was a limited owner of the suit properties on the date of the commencement of the Act of 1956. For the present it may be conceded that she had no title to these properties before the date of the award except to the extent of a possessory lien for her maintenance which is recognised in this State for more than a hundred years. (See Yellawa v. Bhimangavda ilr(1894) 18 Bom 452). It has been held in that case that the Court will not allow the heir to recover family property from a widow entitled to be maintained out of it without first securing a proper maintenance for her. This position in law has been recently recognised by the Supreme Court in Rani Bai v. Yadunandan : [1969]3SCR789 where it is pointed out that the widow was entitled to remain in possession if she could establish that she had entered into possession by virtue of her claim or right to maintenance until the person laying the claim to the estate made proper arrangement for payment of maintenance to her. But, after the date of the award, Hirabai was undoubtedly constituted a limited owner with some restricted powers to alienate the properties. It would appear from the award that she was entitled to remain in possession for her lifetime, the right to alienate being confined to raising of a loan on the security of the properties for the purpose of paying Government revenue.

16. It is true that the award (Exh. 67) dated 15-10-1903 does not in so many words say that the suit properties were given to Hirabai in lieu of maintenance. But, we have no doubt that this was the case. Nemgonda, who was the other party to the dispute, had specifically asked in the plaint which he filed before the arbitrator that maintenance should be provided for Hirabai and all the properties should be handed over to him. The arbitrator, while dealing with this aspect of the case, observed as follows :-

'... ... ... ... Devgonda was the Karta and an honoured gentleman. It would appear that since Jingonda was dumb he was not useful to conduct the day-to-day affairs. Since Devgonda was the Karta, both the parties agreed that it was Devgonda himself who developed the income of the properties. The plaintiff (Nemgonda) fully admits that it was Devgonda who retained the Patilki Watan in the family after putting forth great efforts in the dispute that had arisen. On the whole, there is no dispute before me that Devgonda was the Karta. The defendant Hirabai is the daughter-in-law of such a Karta member and to pass an order merely to give her maintenance as requested by the plaintiff (Nemgonda) would amount to ignoring the real position of those nearest to the man who had after great endeavours developed the properties. Therefore, having regard to the status of Devgonda and the relationship between Devgonda and the defendant (Hirabai) I do not desire to give to the defendant (Hirabai) bare maintenance as if she is an unsheltered woman'.

Reliance was placed upon these observations made by the arbitrator in the award to contend that the award does not really give these properties to Hirabai in lieu of maintenance but that the award is an anomalous instrument wherein the rights of the parties were for the first time decided. We are unable to accept this submission. So far as could be gathered from the award it would appeal that while Hirabai was saying that she should get all the properties and maintenance should be given to the other side. Nemgonda was contending that he should get all the properties from Hirabai and Hirabai should be merely paid some maintenance. That was the issue which has before the arbitrator. He found that they were all members of a joint family and against that background he had to pass the award. Nemgonda being the only surviving male coparcener could not be side-tracked by merely providing him with maintenance. On the other hand, having regard to the fact that Hirabai under the Hindu Law would be only entitled to maintenance, the arbitrator thought that it would be unfair to give her merely a pittance for her maintenance as a widow in the joint family and, therefore, he decided to make a liberal provision for her in lieu of her maintenance. Having regard to the manner in which the family properties had been increased and developed by the personal efforts of Devgonda, the arbitrator thought that Hirabai deserved to be provided on a liberal scale. As a matter of fact, a specific allegation was made in the plaint in the present suit that the suit properties were given to Hirabai under the award in lieu of maintenance, and we do not find any specific denial of the same in the written statement. We, therefore, hold that the suit properties had been allotted to Hirabai in lieu of her maintenance which is also the finding of the learned trial Judge.

17. Thus we find that the suit properties were allotted to Hirabai under the award in lieu of maintenance for life with a very restricted power of alienation only in cases where the land revenue fell in arrears. The Explanation appended to sub-section (1) of Section 14 of the Act assumes that property acquired by a Hindu female in lieu of maintenance is property of limited ownership a concept not inconsistent with the Hindu Law, 2nd Edition, at page 565 in paragraph 44 has stated as follows :

'..........Although the division of property into stridhana and non-stridhana is based upon certain conceptions peculiar to Hindu law it corresponds to the division of property into absolute and limited. Absolute ownership means and connotes that (1) the owner has certain unqualified rights over the property such as (A) the exclusive right to its possession, (B) the right to its management, (C) the right to its exclusive enjoyment, and (D) the right of disposition by an act inter vivos or will, and (2) on the death of the owner the property devolves by succession on his heirs. Where any of these essentials (of the content) of absolute ownership is lacking, the property is not regarded as absolute but limited. Limited property would therefore be property the ownership of which is limited in some way or other irrespective of the manner in which it may be limited in any particular case'.

We have no difficulty, therefore, in holding that on the date of commencement of the Act of 1956 Hirabai was a limited owner within the contemplation of sub-section (1) of Section 14 of the Act. It would then follow that Hirabai was entitled to become the full owner of the suit properties on that date in which case on her death after that date, her daughters would be entitled to inherit the suit properties.

18. It is, however, contended by Mr. Shrikhande that the case falls within the exception embodied in sub-section (2) of Section 14 of the Act. His contention is that the award in this case creates a restrictive estate within the meaning of sub-section (2) and not a limited estate or limited ownership an expression which is to be found in sub-section (1). He contends that this is a restrictive estate because Hirabai was less than a limited owner and for this he refers to the restrictive terms of the award which lay down that Hirabai's right to alienate was strictly restricted to the purpose of raising a loan to pay the land revenue. The argument assumes that a restricted estate is different in quality from limited ownership. That is not so. 'Restricted estate' is a generic term by which all kinds of limited ownerships are covered. The expression 'limited ownership' has been used in sub-section (1) of Section 14 of the Act, because that is an expression generally found in the text books on Hindu Law and has almost acquired a technical connotation in connection with the estate of a Hindu female. Sub-section (2), on the other hand, does not want to move within the technical concept of 'limited ownership'. Therefore, sub-section (2) has used a more generic term 'restricted estate', which in its wide ambit can take into account all limited ownerships within sub-section (1). Indeed, the expression 'limited ownership' within the Explanation appended to sub-section (1) accounts for a wide variety of cases as shown by Gupte in the passage already referred to. They range from Stridhana on the one hand, to acquisition in lieu of maintenance on the other. An absolute estate may be restricted or limited in a variety of ways in point of duration enjoyment, disposal or the like, and all such cases are covered by the Explanation without differentiating between the several kinds of restrictions. In our opinion, Limited ownership is also restricted ownership and every case of limited ownership will fall within the meaning of 'restricted estate' in sub-section (2).

19. Mr. Shrikhande next contended that the words 'award or decree or order of a Court' are not specifically mentioned in sub-section (1) and, therefore, where a limited ownership or restricted estate is created by an award or decree, the case entirely falls within sub-section (2) and not sub-section (1) of Section 14 of the Act. We are unable to accept this submission. It is true that sub-section (1) does not in terms refer to an award or a decree of a Civil Court. But the Explanation to sub-section (1) is wide enough to include property acquired under an award or a decree. The property as explained therein, not only includes the several kinds of acquisition by a Hindu female under the Hindu law but the explanation winds up by providing that property acquired 'in any other manner whatsoever' by the Hindu female would be property referred to in sub-section (1). The expression 'in any other manner whatsoever' is wide enough to include property acquired under an award or a decree. Nor is there any substance in the further contention of Mr. Shrikhande that the words 'the decree or award' are not mentioned in sub-section (1) but mentioned in sub-section (2) because of the higher respectability which is attached to a decree or award. They are adjudications by either a domestic court or by a Civil Court and, therefore, they stand on a higher footing. That is the reason why Mr. Shrikhande says that property acquired under a decree or award was intended to be excluded from the operation of sub-section (1). We do not really see why a decree or award passed on an agreement between the parties or on the basis of a settlement between them should have greater value than a private arrangement amicably arrived at. Moreover, sub-section (2) does not provide for acquisitions made only under an award or a decree but it also makes provision for the property acquired under a gift or will or any other instrument. They are all of the same quality and the only purpose for which sub-section (2) was enacted was to make it clear that where under these several documents a new restricted right to property is created for the first time, sub-section (1) will have no application to such a case.

20. That brings us to the really vexed question in the present case. Mr. Shrikhande does not dispute that when a limited or restricted estate apparently created by the means referred to in sub-section (2) is only a redefinition or recognition of an antecedent right to property, sub-section (1) will not cease to have effect. In such a case, he concedes that it will not be possible to argue that the limited interest created in favour of the grantee has its foundation or origin in the grant itself. The grant, instrument or decree will have only to be regarded as working out the Hindu female's antecedent right to property which is thereby recognised. He, however, contends that where a Hindu female has no right or interest directly to any property antecedent to the documents referred to in sub-section (2), there is no question of that right being recognised in the documents and, therefore, if a restricted estate is given by these documents they alone should be regarded as the foundation or source of the grant and such a grant would fall under sub-section (2). According to Mr. Shrikhande, Hirabai being a widow in the joint family had no direct interest in or right of the family properties prior to the award. Her right was confined to a mere claim for maintenance out of the joint family properties. Hence though her right of maintenance was antecedent to the award it was not a right to any property, that is to say, she had no proprietary right to any property, and hence the right to the limited estate created by the award has its origin in the award itself. Therefore Mr. Shrikhande contends, Hirabai's case falls under sub-section (2) of Section 14 of the Act. In other words, the emphasis, according to Mr. Shrikhande, is on the question whether the antecedent right of the Hindu female is a proprietary right or not. If it is not a proprietary right, the right which is given under the grant in sub-section (2) would be a restricted right having its origin in the grant itself.

21. The right of a Hindu widow to be maintained out of joint family properties has, amongst others, the following characteristics :

1. Under Hindu Law, where a person has succeeded by survivorship to the share of the deceased coparcener, he takes it subjects to the burden of maintaining the widow and unmarried daughters of the deceased coparcener. The burden attaches to the property. The holder of such interest for maintenance amounting as it does to a burden on the property is entitled as a matter of right to ask the Court to create a formal charge on such property; (See Secy. of State v. Ahalyabai 40 Bom LR 422 : AIR 1938 Bom 321).

2. A widow is entitled not only to claim maintenance out of the joint family property in possession of a coparcener but also from the property of the joint family which has been purchased by a stranger with notice of the existence of the widow. (See Dattatraya Putto v. Tulsabai Chidambar : AIR1943Bom412 .

3. If a widow entitled to maintenance is in possession of the joint family property, she is, as already pointed out, not to be ousted from the joint family property even by an heir unless arrangement is made for providing her with maintenance.

4. The liability to maintain a widow is attached to the joint family property. It is true that all these characteristics mentioned above do not amount to any proprietary right to any portion of the joint family property. Nevertheless, a right to maintenance is a right attached to the family property. The question is whether this distinction determines the application of sub-section (1) or sub-section (2) of Section 14 of the Act, as the case may be. In our opinion, this emphasis on the nature of the antecedent right is not as important as the question whether the instrument, decree or award in sub-section (2) is the real source or originator of the restricted estate granted thereunder. It is conceded that a widow having a share in the coparcenary property under Hindu Women's Rights to Property Act, 1937, cannot be prevented from claiming absolute estate under sub-section (1) by the mere fact that an instrument, decree or award which came into existence after 1937 allotted her some joint family property specifically declaring that she will have only a life estate. The reason is that the instrument, decree or award is not the source or foundation of the limited grant. Such a widow is entitled to say :

'The property which I have now in my possession is in lieu of my share in the joint family property. I was given nothing under the instrument or the decree. My antecedent right to a share in the property is merely translated into another form through the medium of the instrument, decree or award and hence sub-section (2) does not apply to me'. It appears to us that a similar contention can be made by a widow when some joint family property is allotted to her in lieu of maintenance. She can say : 'I have an antecedent right attached to the family property for my maintenance. What is given to me through the medium of the instrument decree or award is in lieu of my right to maintenance. My former right is merely translated into another form through the medium of the instrument, decree or award. Therefore, it is not the source or foundation of the right to property I have now in possession. Therefore, sub-section (2) does not apply'.

On principle we see no difference between the two cases. The emphasis is not on the nature of the antecedent right claimed against the joint family property but on the question whether the instrument, decree or award was the originator of the right conferred under it. Since in both types of cases the instrument, decree or award serves merely as a medium which translated one form of right into another it cannot be regarded as the originator of the right conferred under it.

22. It may be interesting to observe that under the Hindu Law the right to a share in coparcenary property given to some widows was held equivalent to the right to maintenance out of the family property. After the Hindu Women's Rights to Property Act, 1937, came into force, the situation is explained by Mulla in his book on Hindu Law, 13th Edition, at page 98, as follows :-

'... ... ... ... The share she gets on partition, it has been held, is in lieu of maintenance and if she can get a share in all the coparcenary property including agricultural lands, her right to maintenance would cease. The right of claiming partition conferred upon a widow under the Act is personal to her. The right being personal would come to an end on her death if no partition had taken place. It has been held in a number of cases that, if she dies pending a suit for partition, her undivided interest would devolve by survivorship and would not go to her husband's heirs as reversioners. The reason generally adopted is that she got her interest in lieu of maintenance and the right conferred upon her being personal would not be crystallized until actual partition by metes and bounds.'

The passage cited above seems to suggest that a widow gets a share after 1937 in lieu of her maintenance. We have gone through the cases noted in the foot-note on that page. But, we have not been able to find therein any direct decision that a share has been granted to her under the Act in lieu of maintenance. That seems to be the learned author's inference from the fact that the share endures only for the lifetime of the widow, that the right given to her to share in the property is only personal to her and that if she gets such a share she is no longer entitled to get maintenance. The conclusion from these facts may well lead to the inference that the share which was for the first time granted to a widow in 1937 was in lieu of maintenance. Moreover, even before the Hindu Women's Rights to Property Act, 1937, when some schools of Hindu Law permitted the wife, mother and grand-mother to share in the coparcenary property on actual partition, the share which was given to them was not because they had any direct or proprietary interest in the coparcenary property but in lieu of maintenance. Some of the favoured widows under the Hindu Law obtained a share in the property in lieu of maintenance, while others did not obtain any share but only got maintenance. It appears to us that in the context of the Hindu widows the right to maintenance conferred under the Hindu Law is indistinguishable in quality from her right to a share in the family property. That may well be the reason why the explanation to sub-section (1) of Section 14 of the Act makes the female allottee of property 'in lieu of maintenance' as much a limited owner as when the widow acquires on 'inheritance' or 'at a partition'. And if in the latter two cases it is conceded that sub-section (2) does not apply on the ground of antecedent right to the family properties, we do not see any rational justification to exclude a widow who has an equality sufficient claim over the family properties for her maintenance.

23. One has to see the anomalous results which follow on a narrow construction of Section 14 of the Act. Before and after 1937 there were widows in the joint family who did not get a share in the family properties but were only entitled to maintenance e.g. the widow of a pre-deceased son prior to 1937 would be entitled to maintenance and not to a share. If such a widow is allotted under an oral arrangement family properties of which she remains in possession till 1956, she would directly come under sub-section (1) of Section 14 of the Act and there is no question of the application of sub-section (2) since there is no instrument whatsoever under which she claims. Then again, if after she is allotted family properties orally, her rights to the same are confirmed in a document some years later but before 1956, she would still become the full owner of these properties after 1956. (See Sharbati Devi v. Hiralal AIR 1964 P&h; 114. But, if the same widow lives amicably in the family and in order to prevent future trouble some family properties are allotted to her for maintenance sometime before 1956, the Madras case : AIR1967Mad429 and the Orissa case : AIR1970Ori131 referred to above would have it that her case should fall under sub-section (2) and not under sub-section (1) of Section 14 of the Act. We do not see any justification for coming to such an unjust result which could not have been within the contemplation of the legislature when it enacted sub-section (2). The provision therein which comes by way of exception must be strictly construed and would have no application to cases except those where for the first time a new right to property is created, unrelated to the antecedent right or interest in the grantee either in respect of the actual property which is the subject-matter of the grant or the family property the claim against which is crystallised in the allotted property. With respect, therefore, it is not possible to agree with the view taken by the Madras High Court in Gurunadham's case : AIR1967Mad429 or by the Orissa High Court in Narayan Patra's case : AIR1970Ori131 . We respectfully agree with the view taken by Mr. Justice Deshpande in Yamunabai Gangadhar's case (1968) 70 Bom LR 611 and also the view taken in Gadam's case : AIR1965AP66 , Sharbati Devi's case AIR 1964 P&h; 114 and Sumeshwar's case, : AIR1970Pat348 .

24. We must, however, draw attention to another judgment of this Court in Udhav Shankar v. Tarabai : AIR1968Bom308 . It is a decision of Mr. Justice Patel sitting singly and we are in respectful agreement with him on the point which was necessary to be decided on the facts of that case. The learned Judge held that in Section 14(2) of the Act of 1956 the word 'acquired' means acquired for the first time under any of the instruments there mentioned or under a decree. When the Hindu female has already by reason of law or otherwise an interest in the property, then she does not 'acquire' any interest in it by reason of the instrument or the decree, and in that case the restriction imposed cannot be effective. However, in the last paragraph of his judgment the learned Judge has observed as follows : (page 796 of Bom LR) = (at page 309 of AIR) :

'... ... ... ... In both these cases the husbands of the widows had died prior to the coming into force of the Hindu Women's Rights to Property Act, 1937, and on their husbands' death they had only a right of maintenance. In lieu of maintenance they were given a share in the properties with the restriction of their interest to their lifetime. Evidently, the interest was 'acquired' under the decrees of the Court.'

These observations were made by the learned Judge with a view to distinguish the two cases which had been cited before him. The question with regard to property acquired in lieu of maintenance - whether it falls under sub-section (1) or sub-section (2) of Section 14 of the Act was not directly before the learned Judge in that case. The observations are, therefore, merely obiter. There is no full discussion also of the basis on which the learned Judge made those observations.

25. 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. We have already referred in this connection to the decision in Rani Bai's case : [1969]3SCR789 . Therefore, even if the narrow view of the Madras case in : AIR1967Mad429 referred to above was the correct view, Hirabai would have a possessory lien sufficient to create an interest in the suit properties and she would, therefore, fall within sub-section (1) and not sub-section (2) of Section 14 of the Act. Mr. Shrikhande referred to the decision in Eramma v. Veeruppane : [1966]2SCR626 and contended that a widow in the joint family who had no proprietary interest in the joint family properties would be deemed to be a trespasser if not in possession with the consent of the coparceners. That case was not similar to the case 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 Section 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 first 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 did not 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 the 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. In that view also sub-section (2) of Section 14 of the Act will have no application to this case. Dated The 14th October, 1970 :

26. In the result, therefore, we hold that Hirabai who was in possession of the suit properties till the commencement of the Act, obtained full ownership over them thereafter, and therefore, after her death in 1967 her daughters viz., the two plaintiffs and defendant No. 1, would be the owners of the said properties. Since defendants Nos. 2 to 6 are in possession of the properties after Hirabai's death, the plaintiffs and defendant No. 1 would be entitled to recover possession of the same from them.

27. The appeal, therefore, succeeds, the order passed by the learned Civil Judge, Senior Division, Kolhapur, is set aside and a decree is passed in favour of the plaintiffs and defendant No. 1 for possession of the suit properties from defendants Nos. 2 to 6. Inquiry to be made under Order 20, Rule 12(1)(c), Civil P.C. for mesne profits from the date of the suit. The plaintiffs shall get their costs in both the Courts from defendants Nos. 2 to 6.

28. Appeal succeeds.


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