(1) The appellant is the purchaser of the suit house from respondent No. 2 under a sale-deed dated 26-4-1954 for a sum of Rs. 600/- (O.S.). Respondent No. 2 is the widow of the cousin brother of respondent No. 1 who is the plaintiff that instituted O.S. 64/1 of 1956 in the Court of the Munsiff at Chincholi on 31-8-1956 for a declaration that the alienation was not binding upon him as the alienated property was the joint family property. Respondent No. 2 first conceded for a decree being passed in favour of the plaintiff but subsequently resiled. The trial Court did not permit her to resile from the stand that she had taken in the first instance by filing a written statement consenting to a decree being passed in favour of the plaintiff. The purchaser contended that the family of the plaintiff and of his vendor was not a joint Hindu family, that his vendor's husband Kishan Rao had become divided during his lifetime and that as his vendor had been in possession of all the properties of her husband in her own right, she put him in possession of the suit house after the execution of the sale-deed.
(2) The trial Court dismissed the suit holding that the family had been divided and that the plaintiff could not claim the declaration sought for in the suit. The plaintiff preferred an appeal (C.A. 176/4 of 1959-60) to the Court of the District Judge, Gulbarga. The appeal was heard by the Additional District Judge who came to the conclusion that the question of status of the plaintiff and defendant 1's husband was not an open question as it had been concluded by the judgment of the Court of the Munsiff in O.S. No. 97/14 of 1953-54. He took the view that the decree passed by the High Court in 1333 Fasli on a compromised between the parties and one Munnalal stating that the family had become divided was no longer operative in view of the subsequent decree passed by the Court at Kondangal. He further held that there was no legal necessity for defendant No. 1 (Mathura Bai) to alienate the property.
It was urged on behalf of the defendants that in view of S. 14 of the Hindu Succession Act, 1956, Mathura Bai became the absolute owner as even according to the recitals of the plaint she was in possession of the suit property. The learned Judge repelled this contention on the ground that Mathura Bai had alienated the property before the Act came into operation and that the purchaser cannot claim the benefit of S. 14 of the Act. He accordingly reversed the decree of the trial Court and granted the plaintiff a declaration to the effect that the sale deed executed by Mathura Bai was not binding upon him.
(3) In this Court Mr. Murlidhar Rao, the learned Advocate for the appellant, has challenged the judgment of the District Judge on all the three grounds. Firstly, he contended that the provisions of section 14 of the Hindu Succession Act, 1956 (hereinafter called the Act) made Mathura Bai the absolute owner of the suit property and that it was not competent for the plaintiff to claim the declaration sought for by him. He further contended that the alienation was justified by legal necessity and that the finding of the appellate Judge on the question of res judicata was erroneous since he ought to have given effect to the judgment of the highest Court within the State.
(4) Dealing with the first question as regards Section 14(1) of the Act, it is necessary to quote the relevant part of that Section which reads 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 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 purchases 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). * * * * *
It would be obvious from the wording of this Section that before a female Hindu could claim any benefit of that Section, it must be established that (1) she was possessed of the property in dispute and (2) that she had acquired that property whether before or after the commencement of that Act. Sub-section (1) provides that after this Act she shall hold that property as full owner and not as a limited owner as she would have held if the Act had not been passed. The explanation makes it clear that the Section applies both to movable as well as immovable property. It further enumerates the modes by which the female Hindu could have acquired the property. She might have acquired it 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, etc.
The words 'Any property possessed by a female Hindu' with which sub-section (1) of section 14 opens limit the benefit conferred on such female to property which was possessed by her at the date of the commencement of the Act. Such possession may be actual or constructive. It is enough if she has control over the property and possesses a separate legal interest which could be enforced by her under the law. In this connection reference may be made to the decision of the Supreme Court in Kotturuswami v. Veeravva, : AIR1959SC577 wherein their Lordships have explained the meaning of the aforesaid words as follows:
'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.'
'In our opinion, the view expressed above is the correct view as to how the words 'any property possessed by a female Hindu' should be interpreted. In the present case if the adoption was invalid, the full owner of Veerappa's estate was his widow Veeravva and even if it be assumed that the second defendant was in actual possession of the estate his possession was merely permissive and Veeravva must be regarded as being in constructive possession of it through the second defendant. In this situation at the time when the Act came into force, the property of Veerappa must be regarded in law as being possessed by Veeravva.'
(5) Mr. Murlidhar Rao's contention is that according to the recitals of the plaint it was Mathura Bai that was in possession of the property. The question of possession has not been gone into in any of the courts below. It is sufficient to notice that the purchaser has claimed in his written statement to have been in possession. Assuming for the sake of argument that Mathura Bai was in possession on the date of the suit, her possession cannot be regarded as possession in law as she had alienated as early as on 26-4-1954 all her interest in the property including her right to remain in possession of the property, it was not in her own right but it was either as a trespasser or as licensee of the purchaser. Possession as contemplated by section 14(1) may be actual or, constructive, but it should necessarily be in one's own right. As Mathura Bai was not possessed of this property at the date when the Act came into operation the purchaser cannot claim the benefit of S. 14 for his vendor.
(6) There is another impediment in the way of the appellant. The Hindu Women's Right to Property Act, 1937, which by S. 3 conferred on a widow of a co partner in a Hindu joint-family dying intestate after commencement of the Act, the same interest as he himself had in the joint family property including his right to claim a partition of such property, came into force in the Hyderabad State with effect from 7th February 1954 as per provisions contained in the Hyderabad (Application of Central Acts) Act, 1952. Kishen Rao had died in 1929 or so and so his widow Mathura Bai is to the benefit (sic) of this Act. She had been residing in the suit house as a widow in a Hindu joint family. It is not her case that it had been allotted to her in lieu of her right to separate residence and maintenance. Hence S. 14 of the Act is inapplicable to the facts of this case. So, considered from any point of view, Mathura Bai could not have claimed title to the house in her own right. Under these circumstances the purchaser gets no title to the property. This question was permitted to be raised in appeal, by granting I.A. No. 2 filed for the purpose.
(7) Mr. Murlidhar Rao next contended that the Court below had found that the alienation was justified by legal necessity. In my opinion this question does not arise for consideration in this case. The doctrine of legal necessity is peculiar to Hindu law and it imposes a restriction on the power of alienation conferred on the manager of a joint Hindu family dealing with joint family property. Mathura Bai was not in possession of the suit house even as a limited owner. Since she had no title to the suit property, she had not at all any right to alienate it and hence the question whether the sale to the appellant was justified by legal necessity is irrelevant.
(8) The last question raised by Mr. Murlidhar Rao is as regards res judicata. The compromise decree stating that Kishen Rao and other coparceners of his family were divided was passed by the Hyderabad High Court in Fasli 1333. But for reasons which are not explained, the parties did not produce that decree in O.S. 97/14 of 1953-54 in the Court of the Munsiff at Kondangal. One of the issues raised in that suit and necessary for the purpose of granting relief to the plaintiff in that suit was the question of status of the family of the present plaintiff, his brother Srinivasa Rao and Mathura Bai's husband Kishen Rao. The parties could have produced the compromise decree of the High Court and shown that the family was divided. On the evidence before the Court, the Munsiff came to the conclusion that the family was joint. The judgment became final as none of the parties challenged it in appeal.
So the position at the date of the present suit was that there were two decrees recording conflicting decisions on the question of status of a Hindu family. In such a situation, where both the decrees satisfy the requirements of S. 11 of the Civil Procedure Code, it is the later decree that prevails over the earlier for the purpose of deciding the question of res judicata. The fact that the earlier decision was of the High Court is not material since the principle of res judicata is not dependent upon the status or the grade of the two Courts which have rendered the decisions but upon the finality of the decision and its binding character on the parties concerned. In that view, the learned District Judge was right in holding the decision of the Munsiff's Court operated as res judicata and that the parties could not re-agitate the question of status.
(9) In this view, I uphold the decree passed by the District Judge and dismiss the appeal with costs.
(10) Appeal dismissed.