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Raghunath Sahu and anr. Vs. Bhimsen Naik and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 80 of 1963
Judge
Reported inAIR1965Ori59
ActsHindu Succession Act, 1956 - Sections 14, 14(1) and 14(2)
AppellantRaghunath Sahu and anr.
RespondentBhimsen Naik and anr.
Appellant AdvocateR.N. Sinha and ;S.N. Sinha, Advs.
Respondent AdvocateR.N. Misra, Adv.
DispositionAppeal allowed
Cases ReferredRathinaswamy Konar v. Nagammal
Excerpt:
.....it has no application to the facts of this case as the plaintiff has failed to plead and establish that 4.10 acres allotted to defendant-2 is not related to the property she is entitled to get in partition. i am, therefore, satisfied that defendant no......of contractual rights and obligations and other rights of similar nature.the character of the right title and interest of a member of a joint family in respect of property allotted in partition is settled by the decision of their lordships of the judicial committee in air 1916 pc 104, mt. glrjabal v. sadashiv dhundiraj. at page 108 their lordships observed.partition does not give him a title or create a title on him; it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former co-sharers. at page 109, their lordships further observed:the right which each individual member had in this joint property did cot spring from deed or the agreement of the parties to which it gave expression. the agreement.....
Judgment:

Barman, J.

1. The point involved in this appeal is the interpretation of Section 14 of The Hindu Succession Act, 1956 for determination of a female Hindu Widow's right under a compromise decree in a certain partition suit in respect of property allotted to her to be held by her in severally in lieu of her undivided share in the joint estate in the manner provided in the decree.

2. Defendants 1 and 2 are appellants. The suit out of which this appeal arises was filed by the plaintiff for a declaration that the sale effected by his widowed paternal grand-mother defendant No. 2 Dulei Bewa in favour of defendant No. 1 is not binding on the plaintiff beyond the life time of defendant No. 2 Dulei Bewa and for issue of permanent injunction against defendant No. 2 restraining her from further transferring the suit, land's in future as prayed for in the plaint.

3. The facts so far as material for the present purpose are shortly these:

Defendant No. 2 Dulei Bewa is a widow of one Satura Naik deceased. Plaintiff's father Arakhit (deceased) was the only son of defendant No. 2 Dulei Bewa. Defendant No. 3 Bisika Bewa is the widow of Arakhit. In a previous partition suit T. S. No. no of 1953 filed by defendant No. 2 Dulei Bewa for partition against defendant No. 3 Bisika Bewa and plaintiff Bhimsen Naik there was a compromise decree dated August 18, 1954 Ext. 1 by which defendant No. 2 Dulei Bewa was allotted 4.10 acres out of which she was given absolute right in respect of 1.10 acres (Ka schedule) and life interest in respect of the remaining 3 acres and she gave up her interest in respect of the remaining 6.59 acres to which she was legally entitled. Under the terms of the said compromise defendant No. 2 Dulei Bewa could not transfer her interest in the 3 acres of land in respect of which she was allowed life interest. On May 23, 1959 defendant No. 2 Dulei Bewa sold 1.77 acres (out of the said 3 acres) being Kha schedule to defendant No. 1 under a sale deed. The plaintiff's case is that the said sale was in violation of the terms of the compromise. On October 27, 1955, the plaintiff filed this present suit for reliefs as aforesaid. Defendants 1 and 2 filed a joint written statement. The defence is that defendant No. 2 Dulei Bewa had acquired absolute right in the suit property by virtue of Section 14 of the Hindu Succession Act.

4. The trial Court found that defendant No. 2 Dulei Bewa was allowed life interest in respect of the property in dispute; so it comes under Section 14(2) of the Hindu Succession Act: and accordingly defendant No. 2 Dulei Bewa cannot be held to be full owner. In appeal the learned lower appellate Court confirmed the said decision. Accordingly both the Courts decreed the suit in favour of the plaintiff. Hence this second appeal by defdts. 1 and 2.

5. The only point argued herein is: Did defendant No. 2 Dulei Bewa become full owner of the property in dispute by virtue of Hindu Succession Act ?

Sub-sections (1) and (2) of Section 14 of the Act read thus:

14. Property of a female Hindu to be her absolute property.

(1) Any property possessed by a female Hindu, whether acquired before or after the commencement 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 moveable and immoveable 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.'

6. The question is: By the compromise decree in the partition suit did' defendant No. 2 Dulei Bewa become a full owner under Sub-section (1) or did she acquire a restricted estate in the property in dispute? On the interpretation of this Section by different High Courts,--on the peculiar facts of each case,--the settled view, on the underlying basic principles, is this: the right of a female Hindu to full ownership in property in her possession is given by Section 14(1) whether the female Hindu has acquired the property by inheritance or otherwise. The word 'acquired' in Sub-section (1) has been given the widest possible meaning. The explanation to the sub-section makes it clear that Sub-section (1) would apply to any property which a female Hindu acquires whether by inheritance, gift, partition, purchase or otherwise. In the context of the Explanation given in the sub-section, the word 'acquired' must be given the widest; possible connotation. The Explanation is restricted to Sub-section (1) and recourse to this Explanation was not intended by the Legislature to be taken for construing Sub-section (2) of Section 34. The language in Sub-section (2) indicates that the word 'acquired' will have a restricted meaning. A property is said to be acquired when prior to the acquisition the person acquiring it had no interest In the property. In Sub-section (2) the illustration of acquisition given is acquisition by way of 'gift' or 'devise'. It is to be noticed that while in the Explanation to Sub-section (1) specific reference is made to properties allotted to the female Hindu on partition or in lieu of maintenance so that she may acquire absolute title therein there is no such specific reference in Sub-section (2). Partition of joint family property must be evidenced either by a, deed of partition or by a decree of a Court in the partition suit as in the present case. The property allotted to a female Hindu on such partition must necessarily be a restricted estate as prescribed by Hindu Law. It follows that if the Legislature intended that the property allotted to a female Hindu on partition or in lieu of maintenance be treated on the same footing as 'gift' or 'devise' in Sub-section (2) then the whole of the Sub-section (1) would be destroyed in respect of properties which were partitioned prior to the Act either privately by a deed or by Court in a partition suit. The words 'any other instrument' in Sub-section (2) must be construed ejusdem generis, that is, any other instrument of the same nature whereby the acquisition is made in respect of property in which the person had no interest previously. The Calcutta High Court followed and referred to these basic principles in deciding the case of Sasadhar Chandra Dev v. Sm. Tara Sundari Dasi, AIR 1962 Cal 438.

7. Let us now examine the position of defendant No. 2 Dulei Bewa jn the present case. Under the compromise decree she was given absolute right in respect of 1.10 acres of land; she got only a restricated right to the land's including the suit land now in dispute; she was given some lands for her maintenance but her power of alienation was restricted; she would get usufruct of the land during her life time without any power of alienation, the property would not come back to the reversioners on her death; even though the lands were given to her for maintenance, it was the plaintiff Bhimsen who had the right to pay the rent. In substance, the compromise was that the widow got 1.10 acres of land as absolute owner and the rest of the lands (3 acres including the suit property) were given to her with life interest in lieu of maintenance.

8. What is the legal effect of this compromise decree in the partition suit? Did defendant No. 2 Dulei Bewa become full owner or did she acquire only a restricted right in respect of the suit property? The position is this: Defendant No. 2 Dulei Bewa, who is a female Hindu, prior to partition of joint Hindu family property had substantial interest therein. No doubt that prior to the partition she had interest jointly with other co-sharers in respect of the whole estate, while on partition she was given exclusive title in the properties allotted to her in the manner as provided in the compromise decree Ext. 1. It is however to be noted that on partition she did not acquire any property in which she had no interest or title prior to partition. The disruption of the coparcenary by partition resulted in the distribution of the coparcenary property amongst the coparceners to be enjoyed by each in severalty. In order to ensure separate possession and enjoyment by each, the other co-parceners ceased to have title on properties not allotted to them. Thus defendant No. 2 Dulei Bewa did not acquire any new property by partition; in lieu of her undivided share in the whole estate she was given exclusive right in the properties allotted to her in the manner aforesaid. There was no new acquisition of property by her. Whatever right she had in the joint family property had already been acquired by her by inheritance from her deceased husband. Until partition, she was enjoying the same jointly with the other members of the joint family.

9. The effect of the compromise decree in the partition suit was only this: On disruption, her interest in coparcenary was crystallised in the coparcenary property allotted to her. It is not that she acquired the property under the compromise decree. Nor did the allotment amount to acquisition of the shares of other coparceners in the property. The position is that prior to the date of the compromise decree, namely August 18, 1954 defendant Dulei Bewa had already acquired title by inheritance from her deceased husband; all that the compromise decree did was to declare that pre-existing title of defendant Dulei Bewa in the said properties; she cannot be said to have acquired the property under the decree. Her right was merely declared. Such a declaration of a preexisting right jn the property cannot be said to be an acquisition of property by her. The compromise decree in the partition suit did nothing more than declare the existing rights of the parties. The declaration under the decree was to the effect that she would have absolute right in respect of 1.10 acres and life interest in respect of 3 acres which, includes the property in dispute. It cannot be said that by such a declaration in the decree she acquired a share In the joint family property. Nor can it be said that the directions in the decree to allot to her property to be held by her in severalty in lieu of her undivided share in the joint estate amount to acquisition of new property by her. The compromise decree in the partition suit cannot therefore be said to be a decree within the meaning of Sub-section (2) of Section 14.

10. In the Calcutta case cited above, there is reference to an earlier decision of the Division Bench of the Calcutta High Court in Jaria Devi v. Shyam Sundar Agarwalla, AIR 1959 Cal 338 where there is an observation to the effect that in a simple case of partition wherein allotment was made according to shares, Sub-section (2) would not apply and the female Hindu would acquire absolute title under Sub-section (1) of Section 14.

11. In this view of the compromise decree in the partition suit in the light of the settled position in law discussed above, we are of opinion that defendant No. 2 Dulei Bewa acquired absolute title in the properties allotted to her (including the property in dispute) in lieu of the undivided share in the manner provided in the decree; she thus became full owner of the suit property and had absolute right to sell the same to defendant No. 1. The plaintiff's suit therefore must fail. In the result, therefore, the decision of the Courts below is set aside and the suit dismissed. This appeal is accordingly allowed. Each party to bear own costs throughout.

Misra, J.

12. I agree. In view of the importance of the question of law involved, I would also express my own view. Facts may be stated in short to bring into bold relief the point of law involved. One Arikhit Naik died leaving behind him his son (plaintiff), widow (defdt.-3) and mother (defendants). Admittedly defendant-2 was entitled to half of the joint family properties under the Hindu Women's Right to Property Act as her husband Satura Naik died after 1937. The total land of the family is about 21 acres and odd. Defendant-2 was therefore entitled to 10.69 acres in her own rights. In character, it was a limited estate. Under the compromise decree (Ext. 1) dated 18-8-1954, she, however, got only 4-10 acres out of which 1.10 acres (Ka schedule) was given to her absolutely. The remaining 1.77 acres (kha schedule) and 1.23 acres (Ga schedule)--in all 3 acres--were allotted to her as a limited estate. Rent of this 4.10 acres was payable by the plaintiff under the compromise. On 23-5-1959 defendant No. 2 sold Ka schedule land to defdt.-1 by a registered sale deed (Ex. A). Plaintiff filed the suit for a declaration that the sale deed (Ext. A) was not binding on him beyond the lifetime of defdt-2 and for a permanent injunction restraining her from alienating the Ga schedule land. Ka schedule land is not the subject-matter of this litigation.

13. Courts below concurrently found that the sale under Ex. A was without legal necessity. This finding is not assailed. Plaintiff's suit was decreed on the finding that defendant-2 had only a limited estate in respect of Kha and Ga schedule lands under Section 14(2) of the Hindu Succession Act, hereinafter referred to as the Act.

14. Mr. R. N. Sinha contends that under Section 14(1) of the Act Kha and Ga schedule lands became the absolute property of defendant-2. To appreciate the contention, the section may be quoted:

'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.

Explanations: In this sub-section, 'Property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, on 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 Stridhan 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.'

I had said in 29 Cut LT 397: (AIR 1963 Orissa 162) Arakhita Das v. Hari Mohapatra:

'While under Section 14(1) full ownership was intended to be given in certain circumstances to the widow in the case of a limited estate, under Section 14(2) it was intended that restricted right created prior to the commencement of the Act would not be enlarged into full ownership by the operation of Sub-section (1). The operation of both the sub-sections is independent of each other.'

In both the sub-sections the word 'acquired' has been used. In Sub-section (1), the mode of acquisition is unlimited and is absolutely wide while in Sub-section (2) it is specified. Sub-section (1) is not confined in its operation to cases mentioned in the Explanation which is not exhaustive and refers only to cases which might not have come within Sub-section (1) but for the Explanation. A limited estate acquired under gift or will is governed by Sub-section (2). Prior to the gift or will, the donee or devisee has no title. 'Any other instrument' used in Sub-section (2) must be read ejusdem generis with the documents preceding, namely gift or will. Sub-section (2) therefore refers to instrument under which a person acquires a title for the first time prescribing a limited estate. Similarly, the decree or order of a Civil Court or the award, referred to in Sub-section (2), must refer to cases where for the first time a person acquires a limited estate. If those instruments, decree or order or award prescribe a restricted estate, Sub-section (1) has no application to such cases, and the restricted estate cannot be enlarged into an absolute estate. Authorities are unanimous on this point and no dissenting voice has been brought to our notice--AIR 1962 Cal pp. 438, Lalchand Bhur v. Sm. Sushjia Sundari Dasi, AIR 1962 Cal 623; Rangaswami Naicker v. Chinnammal, 77 Mad LW p: (AIR 1964 Mad 387); Smt. Janak Dulari v. Dist. Judge Kanpur, AIR 1967 All 294 and Smt. Sharbati Devi v. Pt. Hiralal, AIR 1964 Punj 114.

15. The next question for consideration is whether property, obtained in partition by a member of a joint family to which he/she is entitled by right, can be said to be acquired by him/her under the decree of the Court within the meaning of Section 14(2). On this point also there is unanimity of authority that where the decree for partition merely recognises the pre-existing title to the property, it would come within the operation of Section 74(1). Unless the compromise decree is intended to be a fresh source of title or as a family arrangement of doubtful claims, it cannot be said to confer title for the first time but merely recognise? the pre-existing title. Under Sub-section (1) the Legislature wanted to remove the disability on women of their having only a limited estate under the Hindu Law, as it then stood. It was not, however, the intention of the Legislature to interfere with or put premium on the rights secured by women under contracts or grants under which they only acquire a limited or restricted right. Sub-section (2) comprehends the class of rights acquired under a contract or grant and other rights of similar nature. If under a contract, grant, decree or award, a restricted right is acquired by a male, that right cannot be enlarged into absolute right and the object of Section 14 was not to give the females any higher right or to put them on a different footing from the males. Sub-section (2) purports to obviate such absurd and inequitable position in the matter of contractual rights and obligations and other rights of similar nature.

The character of the right title and interest of a member of a joint family in respect of property allotted in partition is settled by the decision of their Lordships of the Judicial Committee in AIR 1916 PC 104, Mt. Glrjabal v. Sadashiv Dhundiraj. At page 108 their Lordships observed.

Partition does not give him a title or create a title on him; it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former co-sharers. At page 109, their Lordships further observed:

The right which each individual member had in this joint property did cot spring from deed or the agreement of the parties to which it gave expression. The agreement only recognised existing rights in each individual member which he was entitled to assert at any time he liked.

The aforesaid dictum of their Lordships lends full countenance to the theory that defendant No. 2 would not acquire a new title under the compromise decree for partition if 10.69 acres to which she was admittedly entitled would have been allotted to her as a limited estate. As she had pre-existing title, the compromise decree comprising 10-69 acres would not have been a fresh source of title and the property so allotted to her would have been enlarged into an absolute title under Section 14(1).

16. The real question for consideration is whether on account of the fact that in place of 10.69 acres of limited estate to which she was entitled, if she got 4.10 acres with absolute title in 1.10 acres and limited interest in 3 acres, the compromise decree would be treated as a fresh source of title, or if 4.10 acres allotted to her would be treated as a family arrangement of doubtful claims. Mr. Misra rightly did not urge that the compromise decree was a family arrangement of doubtful claims as in the very document itself it was admitted that defendant-2 was entitled to half the undivided interest of 21 acres and odd. Family arrangement of doubtful claims was neither pleaded nor proved. He, however, urged that the compromise decree was a family arrangement constituting a fresh source of title. Mr. Misra developed his argument by laying emphasis on the fact that the widow acquired absolute interest in respect of 1.10 acres though she had no pre-existing title to an absolute estate in that land. Though Ka schedule land is not in dispute in this litigation, it cannot be disputed that the compromise must be taken as a whole in construing its terms, 1.10 acres in respect of which absolute title was conferred cannot be dissociated from the 3 acres of limited estate. Acceptance of this theory does not, however, solve the difficulty. The crucial test as to whether pre-existing rights were recognised in the compromise or whether new rights were created would depend upon the further finding as to if defendant-2 had been allotted, taken as a whole, property higher than her legitimate share in value. In other words it has not been pleaded or proved that the value of 3 acres limited estate and 1.10 acres absolute estate, taken together, are higher than the undivided half interest of 21 acres and odd to which defendant-2 was entitled in law. To take an illustration, which was presented by Mr. Misra in course of argument. If without allotting any immovable property to defendant-2 in the partition she would have been given towards her half share as equivalent value in terms of money, could it be said that in the money she had no pre-existing title? The Privy Council decision referred to is a complete answer to this and such contention is wholly untenable. On the selfsame reasoning d'efendant-2 cannot be said to have acquired a fresh title in 4.10 acres unless it was further established that taken as a whole, defendant-2 got more properties under the compromise to which she was not legally entitled. Merely because in respect of 1.10 acres, absolute-right was conferred in place of limited right difference in legal concept is not made out. The condition on the compromise decree that the plaintiff was liable to pay rent of 4.10 acres, though defendant No. 2 would be in possession, does not militate against the aforesaid conclusion. That factor is to be taken into consideration in assessing the value of the entire share and in determining whether defdt. No. 2 got more than her legitimate share. In the cases reported in 77 Law Weekly 9, the substance of the arrangement was that Angammal was to be declared entitled to half a share of the properties, but possession of the share was to be with appellant so long as he paid her rents stipulated. Despite the condition, their Lordships held that the title was absolute AIR 1959 Cal 338 relied upon by Mr. Misra is clearly distinguishable. Under the compromise in that case, the widow was given half of the entire property with limited interest though she was entitled to one fourth only. The family property, as is rightly observed in Rathinaswamy Konar v. Nagammal, AIR 1963 Mad 133, allotted to the widow in that case was not under any admitted share which could be related to the law of inheritance. Though no exception can be taken to AIR 1959 Cal 338, in principle, it has no application to the facts of this case as the plaintiff has failed to plead and establish that 4.10 acres allotted to defendant-2 is not related to the property she is entitled to get in partition. I am, therefore, satisfied that defendant No. 2 acquired an absolute-right in Kha and Ga schedule lands under Section 14(1) of the Act. Those properties being absolute in character, the plaintiff has no right of reversion and the suit must accordingly be dismissed.

17. In the result, the judgments of the Courts below are set aside and the appeal is allowed. In view of the complexity of the legal question involved, parties must bear their own costs throughout.


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