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Harabati and ors. Vs. Jasodhara Debi and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 316 of 1973
Judge
Reported inAIR1977Ori142; 43(1977)CLT524
ActsHindu Succession Act, 1956 - Sections 14(1); Hindu Widows' Remarriage Act, 1856 - Sections 2
AppellantHarabati and ors.
RespondentJasodhara Debi and ors.
Appellant AdvocateA. Das and ;S.N. Satapathy, Advs.
Respondent AdvocateH.G. Panda and ;C. Pani, Advs.
DispositionAppeal dismissed
Cases Referred(Katragadda Chinna Anjaneyulu v. Kattragadda Chinna Ramayya). The
Excerpt:
.....glt 246, are not good law]. - if the said settlement is of any value, at its best, it only conferred on defendant no. in the deed it is mentioned that as jasodhara was dependant on dileswar for her maintenance during her lifetime, the properties mentioned in the fifth paragraph of the said deed were left entirely in her possession so that she on payment of all taxes and dues for the said period would enjoy (anubhaba) the said properties during her lifetime. 1 the suit properties were allowed to be enjoyed exclusively by jasodhara in lieu of her maintenance during her lifetime and that she remained in possession of the said properties on her said right till dileswar's death and after his death she in accordance with the law then in force inherited life interest in the said properties..........settlement is of any value, at its best, it only conferred on defendant no. 1 a life estate in the suit properties, and on her admitted second marriage with one satchidananda misra of sundargerh. she lost all her rights, title and interest in the said properties due to her civil death after the said second marriage.6. defendant no. 4 merely filed a written statement stating therein that he was not a necessary party to the suit. he of course supported some of the averments in the plaint.defendant no. 1, who alone contested the suit, in her written statement inter alia asserted that she was the legally married wife of dileswar; she was in possession of the suit properties during the lifetime of dileswar and also after his death, and as such whatever interest dileswar had in the said.....
Judgment:

S. Acharya, J.

1. The plaintiffs have preferred this appeal against the judgment and decree passed in Title Appeal No. 28/72------- by the Addl. District Judge,58/69 Berhampur confirming the decision of the Additional Subordinate Judge, Berhampur in Title Suit No. 18 of 1968.

2. To appreciate the facts of this case, the admitted genealogy showing the relationship of the parties is given below:--

MUKUNDA PANI

______________________|_________________________

| | |

Arjun Kasi Chandrasekhar

(dead) (dead) (dead)

| | |

| Madan Mohan |

| (D.4) |

| adopted son |

_________|____________ ____________________|____________

| | | | | | |

Benu Ballabha Madan Mohan Hara Nisamani Srimati Dileswar

(dead) (D.3) (D.4) (P.1) (P.2) (P.3) (dead)

=Brundabati (adopted to =Jasodhara

(D.2) Kasi) (D.1)

3. The plaintiffs, as shown in the genealogical tree, are the sisters of Dileswar and defendants 2 to 4 are the distant cousins of Dileswar.

4. The plaintiffs in the plaint alleged that Jasodhara (defendant No. 1), respondent No. 1 in this appeal, was not the legally married wife of Dileswar. But on the finding of the trial court that Jasodhara (D, 1) was the legally married wife of Dileswar, the plaintiffs in the lower appellate court and also in this Court do not challenge that fact. In view of the above position, it is not necessary to state the averments made in the plaint on that aspect of the matter.

5. The relevant averments made by the plaintiffs which are necessary for the determination of the questions agitated in this appeal are as follows:--

The registered deed of settlement (Ext. 1), allegedly executed by Dileswar in favour of Jasodhara (D. 1) was not a genuine settlement, and as such it is not binding on the plaintiffs; if the said settlement is of any value, at its best, it only conferred on defendant No. 1 a life estate in the suit properties, and on her admitted second marriage with one Satchidananda Misra of Sundargerh. she lost all her rights, title and interest in the said properties due to her civil death after the said second marriage.

6. Defendant No. 4 merely filed a written statement stating therein that he was not a necessary party to the suit. He of course supported some of the averments in the plaint.

Defendant No. 1, who alone contested the suit, in her written statement inter alia asserted that she was the legally married wife of Dileswar; she was in possession of the suit properties during the lifetime of Dileswar and also after his death, and as such whatever interest Dileswar had in the said properties vested absolutely in her after the coming into force of the Hindu Succession Act, 1956 (hereinafter referred to as the 'Act'), and accordingly the right, title and interest in the said properties vested in her absolute right and she has full ownership over the said properties. She further alleged that some of the other defendants through some persons disturbed her possession over the suit properties, so she filed Title Suit No. 5 of 1954 for a declaration of her title to and recovery of possession of the suit properties; and the said suit was decreed in her favour-In the final decree proceedings the defendants alleged forfeiture of defendant No. 1's claim to the suit properties on the ground of her second marriage, but the High Court in Civil Revision No. 50 of 1964 held that this defendant prior to her second marriage had acquired absolute right, title and interest to the suit properties as soon as the Act came into force, and so she could not be divested of her such right in the said properties only due to her second marriage. Mainly on the above averments she contested the plaintiffs' suit.

7. Mr. Das, the learned counsel for the plaintiffs-appellants, did not contest the genuineness of the registered deed of settlement (Ext. 1). According to Mr. Das by that settlement the limited life estate in the suit properties devolved on Jasodhara on and from the date of the said deed, and accordingly under Section 14(2) of the Act she got only the said restricted estate in the said properties. That being so, on her admitted second marriage with the said Satchidananda Misra she is divested of her said limited interest in the properties due to her civil death on her second marriage.

Mr. Panda, the learned counsel for defendant No. 1--respondent No. 1, contends that from the contents of Ext. 1 it would be evident that by that settlement the title and corpus in the said properties did not devolve absolutely on Jasodhara for her lifetime, and the owner of the said properties was not completely divested of his right and title in the said properties for any time whatsoever. According to Mr. Panda, by that deed Dileswar only left the properties mentioned therein in the exclusive possession of Jasodhara (D. 1) during her lifetime so that she would maintain herself out of the usufructs thereof. That being so, defendant No. 1 had only that interest in the said properties, and on her husband's death she acquired life estate in the same, and as she was in possession of the said properties at the time the Act came into force, she acquired absolute right to and interest over the said properties. Mr. Panda further submits that even if it is found that by the said deed the right, title and interest in the said properties devolved on Jasodhara for her lifetime then also she gets absolute right in the said properties as per the provisions of Section 14(1) of the Act, as the said device was made in lieu of her maintenance, as expressly mentioned in Ext. 1, the deed of settlement.

8. On the above contentions it is at first to be seen whether the title and corpus in the suit properties were absolutely transferred in favour of Jasodhara by Dileswar for her lifetime, thereby divesting himself entirely of all his right, title and interest in the said properties till the lifetime of Jasodhara, or whether by the said document only exclusive possession of the said properties was given to Jasodhara so that she could maintain herself out of the same during her lifetime. Without doubt, if by Ext. 1 merely the right to possess the said properties in lieu of her maintenance was given to her and she continued in possession of the said properties on that right, then on her widowhood and on the coming into force of the Hindu Succession Act. she would get absolute right over the said properties. Therefore, Ext. 1 has to be very carefully construed in order to see whether the right, title and interest in the said properties absolutely devolved on Jasodhara for her lifetime, or only exclusive possession of the said properties was given to her for her maintenance.

9. On a careful perusal of the deed of settlement (Ext. 1) it appears that the properties mentioned in the said deedwere left in the exclusive possession of Jasodhara for her maintenance during her lifetime. In the deed it is mentioned that as Jasodhara was dependant on Dileswar for her maintenance during her lifetime, the properties mentioned in the fifth paragraph of the said deed were left entirely in her possession so that she on payment of all taxes and dues for the said period would enjoy (Anubhaba) the said properties during her lifetime. From the averments in paragraph 5 of the said deed it is quite clear that Jasodhara was not permitted to alienate the said properties in any manner, even for her necessity, without the express permission of her husband Dileswar. It is also expressly stated therein that after her death her husband or his collaterals will exercise all possible right, title and interest in respect of the said properties. There is no specific averment in the said deed that the entire right, title and interest in the said properties devolved absolutely on defendant No. 1 by virtue of the said deed even for her lifetime. From the contents of the said deed it appears that there was no transfer of the corpus of the estate in the suit properties in favour of defendant No. 1, but as she was dependant on Dileswar, he for her maintenance allowed her to exclusively possess the said properties throughout her lifetime so that she could maintain herself out of the same. So, Jasodhara was merely given possession of the said properties in lieu of her maintenance till her lifetime.

Dileswar admittedly died before the Hindu Succession Act came into force, and it is not disputed that at the time when the said Act came into force, Jasodhara was in possession of the suit properties. As Jasodhara was in possession of the said properties in lieu of her maintenance, and absolute right, title and interest in the same had not devolved in her even during her lifetime, the provisions of Section 14(1) of the Act would squarely apply to her case, and she would get full ownership over the said properties as she was in possession thereof at the commencement of the said Act. During the lifetime of Dileswar. Jasodhara possessed the said properties by virtue of the said deed of settlement; on Dileswar's death, which took place before the coming into force of the Hindu Succession Act, she became a limited owner of the said properties in accordance with the provisions of the Hindu Women's Right to Property Act, 1937, and while she was continuing in possession of the said properties on her said right as a limited owner, the Hindu Succession Act came into force, and so on the coming into force of the Hindu Succession Act she became a full owner of the said properties by virtue of the provisions of Section 14(1) of the said Act.

Ext. 1 came to be construed in Civil Revision No. 50 of 1964 reported in ILR (1965) Cut 398 (Ballabha Pani v. Jasodhara Pani) in which civil death of Jasodhara on the ground of her remarriage was alleged by the parties contesting Jasodhara's claim of absolute right and title to the suit properties. There, the learned Single Judge in construing the said document has held :

'In the deed of gift there was the provision for maintenance of the plaintiff during her lifetime. The plaintiff was prohibited from effecting any alienation of the property in any manner, even for necessity, without taking the consent of her husband. There was no transfer of the corpus of the estate in favour of the wife.'

The learned Judge further states that the decree in the said suit shows that Jasodhara's title to the land did not flow 'from the said deed but was based on inheritance from her husband, and that being so, as per the law as it obtained on the date of the institution of the suit in 1954, she had a limited interest in the property, and so she acquired an absolute title therein under Section 14(1) of the Hindu Succession Act, as admittedly she was in possession of the property on the date of the passing of the Act. The said findings of course are not binding on the plaintiffs in this case as they were not parties in the said suit, but the construction given by a learned Judge of this Court about that document amounts to and should be regarded as a judicial precedent. That the interpretation and construction of a relevant document in a previous case can be considered as a judicial precedent has been accepted in the decision reported in AIR 1955 SC 481 (Sahu Madho Das v. Mukand Ram) and also in the Full Bench decision reported in AIR 1965 Andh Pra 177 (Katragadda Chinna Anjaneyulu v. Kattragadda Chinna Ramayya). The above interpretation and construction given by the learned Judge in Civil Revision No. 50 of 1964 concur with my interpretation and construction of the said document as stated above.

10. The contentions of Mr. Das, the learned counsel for defendant No. 1, that the above statements in the judgment in the Civil Revision are not the findings or conclusions of the learned Judge, but were only the contentions of the lawyer appearing for the opposite parties (defendants 3 and 4 in the present suit) in that case, and that the said judgment was obtained in a collusive suit, are fallacious and without any substance or material to substantiate the same.

11. On my above finding that by Ext. 1 the suit properties were allowed to be enjoyed exclusively by Jasodhara in lieu of her maintenance during her lifetime and that she remained in possession of the said properties on her said right till Dileswar's death and after his death she in accordance with the law then in force inherited life interest in the said properties and continued to possess the same with that limited right and interest till the coming into force of the Hindu Succession Act, she acquired absolute title to the said properties under Section 14(1) of the Act, as admittedly she was in possession of the suit properties on the date of the coming into force of the said Act.

12. On my finding that on the coming into force of the Hindu Succession Act the right, title and interest in the suit properties devolved on Jasodhara (D. 1) in her absolute right, it is not necessary for me to delve into the contention of Mr. Das that as limited ownership of the properties devolved on Jasodhara only for her lifetime by the settlement made by Dileswar as per Ext. 1, her case comes within the purview of Section 14(2) of the Act and so she cannot acquire absolute ownership over the same under Section 14(1) of the Act.

13. On my above finding that absolute ownership in the suit properties vested in Jasodhara for all intents and purposes as per Section 14(1) of the Act, she cannot lose her said right merely on her remarriage with some other person. So long a widow had only a limited life interest in her husband's properties, her said right ceased and determined on her remarriage under the provisions of Section 2 of the Hindu Widows' Remarriage Act (Act 15 of 1856). But in view of the provisions of Section 31 of the Hindu Succession Act, any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of that Act ceased to have any effect in respect of any matter for which provision is made in this Act, and other laws in force immediately before the commencement of the said Act ceased to apply to Hindus in so far as the same were inconsistent with any of the provisions contained in that Act. The provisions of Section 2 of Act 15 of 1855 (supra) being inconsistent with the provisions of Section 14 of the Hindu Succession Act, the former and/or any other such provision in any other law ceased to apply to the Hindus and the same stand repealed to the extent of repugnancy. Accordingly, Jasodhara, who has acquired absolute ownership over the suit properties under Section 14(1) of the Act, cannot be divested of her said right in the suit properties even on her remarriage with any other person. My above view is supported by the decision reported in ILR 1965 Cut 398 (supra).

14. On the above discussions and considerations I do not find any merit in this appeal and it is accordingly dismissed, but in the circumstances without costs.


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