A. Misra, J.
1. Plaintiffs Nos. 2 to 5. sons of deceased plaintiff No 1 have preferred this appeal aeainst concurrent iudg-ments of the court? below The subject-matter of the litigation is 10.21 acres of land and homestead in village Ratnapur As per the genealopy given in the plaint, the common ancestor Sadasiv Baril had seven sons Arakhita, Hari, Ugri. Nata, Damo, Urdhab and Ghann. They constituted a joint family. The family possessed lands in three villages Hariharpur, Phulihari and Ratnapur Ghano died, while the familv was 1oint sometiine prior to the settlement of 1924-31. Damo married Lakhmi through whom he had one son Nimei/defendant No 1). Defendant No 2 is the son of Nimei Damo predeceased Ghano Ghano had one daughter Usha (defendant No. 3) through his first wife After Damo's death his widow Lakhmi re-married Ghano. Urdhab was plaintiff No. 1 and plaintiffs Nos. 2 to 5 are his sons. According to plaintiffs, after the death of Ghano and while Sadasiv was alive, the family divided. In the said division, the bhogra lands in Hariharpur were allotted to the share of Arakhit and portions of the rayati in that village were allotted to the shares of Hari, Ugri and Nata.
All the lands owned in mouza Pnuljhari were allotted to the share of defendant No. 1 and all the family lands in mouza Ratna-pur were allotted to the share of plaintiff No. 1. Ghano haying died in a state of jointness, Lakhmi was not allotted any share in the partition, but plaintiff No. 1 out of pity allowed her to live in his own house and during the settlement operations of 1924-31 allowed her name to be iointly re-corded in Khata No 13 of mouza Ratnapur, although he was all along in possession of the lands. Some differences arose in 1946 or 1947 on account of which plaintiff No. 1 allowed Lakhmi to enjoy the usufruct of the 10 acres and odd in dispute, and therefore, in the settlement of 1947, her possession was recorded. Lakhmi died in Falgoon 1958. After her death, defendant No. 1 initiated a proceeding under Section 145 Cr. P. C., in respect of these lands which terminated in his favour.
As Lakhmi had no right, title or interest in the disputed properties and her enjoy-ment of the usufruct was only permissive, the properties reverted to plaintiffs on Lakhmi's death Alternatively they allege that by their uninterrupted and hostile possession for over the statutory period, plaintiffs have acquired an indefeasible right to the said properties. According to defendants Nos. 1 and 2, the partition of the family properties took place during the life time of Ghano and he was allotted some other land, besides those in dispute towards his shan After Ghano's death, Lakhmi resided with defendant No. 1, her son through her first husband, who was cultivating the disputed lands on her behalf. On Lakhmi's death, these lands inherited by her from her deceased husband Ghano devolved on defendant No. 3 who sold the same to defendants Nos. 1 and 2 on 1-10-58 for Rs. 2.500 since which date they are in possession in their own right. Defendant No. 3, while claiming that the properties devolved on her on Lakhmi's death, alleges that defendants Nos. 1 and 2 have taken a sale deed from her by practising fraud without payment of any consideration, and as such she asserts that she is entitled to the said properties.
2. The concurrent findings of the courts below are (1) that Ghano died in a state of jointness and that the partition between the members of the family took place after Ghano's death, while Sadasiv was still alive; (2) that the deed of partition dated 17-8-1928 (Ex 11/b) between Sadasiv and other members of the family is valid and genuine: (3) that both the courts have negatived the plaintiffs' case that the suit properties constituted a part of the share allotted to plaintiff No. 1 and that out of pity he gave the same to Lakhmi for maintenance without her having any rights therein with the condition that they would revert back to him on Lakhmi's death; (4) that the suit properties were given to Lakhmi for her maintenance at the family partition, and as such, after coming into force of the Hindu Succession Act, 1956, she became the absolute owner and (5) that defendant No. 3 is entitled to succeed to the properties. On these findings, the suit was dismissed.
3. Learned counsel for appellants assails the judgments of the courts below on the following grounds; (1) that both the courts have erred in holding that the suit lands were given to Lakhmi under Ex. 11/b at the family partition towards her maintenance, (2) that both the courts have erred in rejecting the plaintiff's case that plaintiff No. 1 gave the suit lands to Lakhmi for her maintenance and Lakhmi's possession and enjoyment of the usufruct were only permissive without conferment of any rights on her and (3) that even assuming that Lakhmi got the lands at the family partition towards her maintenance, she would not be entitled to acquire an absolute right to the properties on passing of the Hindu Succession Act, 1956 as Section 14(2) of the Act will apply.
4. The first contention of learned counsel for appellants is that the courts below have erred in their finding that the suit lands measuring 10.21 acres in Ratnapur bad been allotted to Lakhmi under Ex. 11/b at the family partition. In support of this contention, it is argued that the recitals in Ex. 11/b do not support such a finding, and the courts below in spite of the non-mention of the name of the village in which Lakhmi was given lands in Ex. 11/b have erroneous-ly come to the conclusion that they must appertain to Ratnapur. On the other hand, it is pointed out that Ex. 11/b contains recitals to the effect that lands with a seed capacity of 5 khandis which according to the evidence of P. W 2 comes to 3 acres, were given to Lakhmi and the further recital that all the lands in Ratnapur were allotted to Urdhab would lead to the inference that lands given to Lakhmi were in a village other than Ratnapur
Further, it is urged that when under Ex 11/b all the lands in village Ratnapur were allotted to Urdhah it is not correct to say that the lands allotted to Lakhmi would appertain to that village Even otherwise, it is contended that when according to the recitals in Ex 11 /b Lakhmi got only lands of 5 khandis seed capacity which roughly amounts to 3 acres in extent, the finding that the entire suit lands measuring 10 acres and odd appertain to Lakhmi's share cannot be correct. These contentions of appellants, in my opinion are not acceptable in a consideration of the recitals in Ex. 11/b and the subsequent conduct of the parties. Ex. 11/b is a document executed by Sadasiv Barik whereunder he purports to divide his self-acquired properties among his sons and grandsons. While stating that his four sons Arakhit, Hari, Ugri and Nata were allotted shares of bhogra and rayati lands in village Hariharpur. it recites that Lakhmi. widow of his fifth son Ghano, was to get and enjov one sharp of rayati land of 5 khandis
It is no doubt true that in Ex. 11/b there is no express mention of the village to which the lands allotted to Lakshmi appertain and are described as 5 khandis. The absence of mention of the village to which the lands allotted to Lakhmi appertain does not neces-sarilv mear that they must appertain to some other village and not Ratnapur. The extent of rayati land allotted to the share of Urdhah is clearly recited in Ex. 11/b. It is stated that Urdhab Barik would enjoy 9 Mans (acres) of rayati land in Ratnapur. In the later part of the document (Ex. 11/b), there is also a reference to Urdhab being in charge of maintaining Sadasiv in his old age further there is an express recital to the effect that Urdhab exclusively will enjoy 9 Mans of rayati land in Ratnapur mouza. From this document, it is patent that only 9 Mans ot rayati lands in Ratnapur were allotted to Urdhab. The plaint allegations show that Khata No 13 of the 1924-31 settlement corresponding to Khata No. 16 of the 1947 settlement contains an extent of 25.32 acres recorded jointly in the name of Urdhab Barik and Takhmi Bewa.
If, as indicated in Ex. 11/b, Urdhab got only 9 Mans of rayati lands in Ratnapur, it will be unreasonable to draw an inference that all the lands in Ratnapur were allotted to him and the lands allotted to Lakhmi were in some other village. The subsequent conduct of the parties also lends support to the conclusion that the lands allotted to Lakhmi appertain to Ratnapur and not to any other village and the extent described roughly as 5 khandis relates to the suit lands Admittedly, both in the 1924-31 as well as in the 1947 settlements Khata Nos. 13 and 16 respectively were jointly recorded in the names of Urdhab and Lakhmi. The courts below have rightly negatived plaintiff's case that such recording of Lakhmi's name was only permissive. Ex. 8 is the certified copy of an order in the settlement proceeding of 1929-30 wherein an objection raised by Urdhab against joint recording of Lakhmi's name was negatived. It is observed there that from the settlement of the parties it was clear that the disputed lands fell to the share of Ghano. husband of Lakhmi. Admittedly, since 1946 Lakhmi's possession was noted in respect of some of these plots. Therefore the contention of appellants that the suit lands situate in Ratnapur do not appertain to the share allotted to Lakhmi at the partition does not appear to be correct and I see no reason to disagree with the finding of the courts below.
5. The second point urged by learned counsel for appellants is that the courts below have erred in rejecting the plaintiff's case that Urdhab gave the suit lands to Lakhmi for her maintenance and her possession and enjoyment were permissive. This contention has no merit and has been rightly rejected by the courts below. The very fact that during the 1924-31 settlement Urdhab objected to the name of Lakhmi being recorded which objection was overruled (vide Ex. 8) militates against such a contention.
6. The last point urged by learned counsel for appellants is that even assuming that Lakhmi got the suit lands at the family partition towards her maintenance, she would not acquire absolute right to them under the provisions of the Hindu Succession Act of 1956, as the present case will be governed by Section 14(2) and not Section 14(1) of the Act The courts below on the finding that Lakhmi got the suit lands at the family partition and was in possession and enjoyment of the same till her death in 1958 have held that she became full owner of the suit lands by virtue of Section 14(1) of the Hindu Succession Act, 1956. The contention of appellants, on the other hand, is that this is a clear case where Section 14(2) of the Act will ap-ply.
7. Before dealing with the respective contentions of the parties about applicability of Section 14(1) or 14(2) of the Hindu Succession Act, I may state that this aspect is not very relevant for decision of the present appeal. The specific case of plaintiffs as made out in the plaint is that in the partition all the ray-ati lands fell to the share of plaintiff No. 1 exclusively and that out of pity he permitted Lakhmi, widow of his brother to reside at his house. He also got her name recorded in respect of Khata Nos. 13 and 16 in the two successive settlements, got her possession noted in respect of some specific plots and although he was all along in possession, he was giving the usufruct to Lakhmi for her maintenance. The concurrent findings of the courts below, which findings are also maintained in this second appeal are, that the suit lands had been allotted to Lakhmi at the family partition effected in 1928 by Sadasiv under the document (Ex 11/b); and that Lakhmi got herself jointly recorded and continued in possession and enjoyment of the said lands by virtue of the allotment made to her at the family partition
These findings totally negative the plaintiff's specific case that title to the suit lands belonged to plaintiff no. 1 by his having got them in the family partition and that he had allowed Lakhmi to possess or enjoy the same permissively towards her maintenance Plaintiffs thus having failed to establish their specific case that the lands had been allotted to their share at the family partition and their claim of adverse possession having been negatived, and no alternative case of the lands having been allotted to Lakhmi at the family partition towards her maintenance with restricted rights having been pleaded, the suit as framed must fail and the question of application of Section 14(1) or 14(2) will not arise. This itself is sufficient to dispose of the third point.
8. However, as both the courts below have found that Lakhmi having been in possession and enioyment of the suit properties till her death in 1958 became full owner of the same by virtue of sec. 14(1) of the Hindu Succession Act, 1956 and as learned counsel for appellants disputes the correctness of the view, I propose to deal with the contentions raised. Sec. 14 of the Hindu Succession Act (hereinafter referred to as the Act) runs 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 a limited owner.
Explanation:- In this sub-section, 'property' includes both moveable and im-moveable 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 stri-dhan 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 when the terms of the gift will or other instrument or the decree, order or award prescribe a restricted estate in such property.'
9. According to learned counsel for appellants even assuming that the suit properties were allotted to Lakhmi towards her maintenance, as she got only a restricted estate in the properties, on her death it will not devolve on her heirs but will revert back to the different branches of the family among whom the partition had taken place. He relies on Ex. 8 to show that Lakhmi got a restricted estate under orders of the court. In support of his contention, he has placed reliances on the decisions reported in I.L.R. (1963) Cut 628: (AIR 1963 Ori. 162) and 1964 2 Andh W R 383. In the decision reported in ILR (1963) Cut. 628: (AIR 1963 Ori. 162) the point decided was that the order of the Deputy Commissioner disposing of a claim for maintenance during settlement operations would amount to a decree of a civil court within the meaning of sec. 14(2) of the Act and that there is no distinction in Hindu law between the 'limited'' and 'restricted' estates, That was a case where by the order of the Deputy Commissioner disposing of the claim for maintenance made, the widow acquired a limited estate to a share in the properties. The decision reported in 1964-2 Andh WR 383 also dealt with the question whether mere possession of properties by a Hindu female would be sufficient to enlarge the ownership under Section 14(1) of the Act. It was held that there must be ownership, although subject to certain restrictions to successfully invoke that provision.
10. Section 14(1) the Act confers the right of full ownership of property in her possession whether the female Hindu has acquired the property by inheritance or otherwise. The Explanation to Sub-section (1) makes it clear that it would apply to any property which a female Hindu acquires whether by inheritance, gift, partition, purchase or otherwise. The word 'acquire' is intended to be given the widest possible connotation On the other hand, sub-section (2) exempts certain properties acquired by a female Hindu from the application of Sub-section (1). The object is to prevent enlargement of the ownership where restricted estates are created by operation of transactions inter vivos, by testamentary dispositions, by decree or order of the civil court or under an award. To attract the application of Sub-section (2), it is necessary that the property must have been acquired in any of the ways specified therein. The expression 'acquire' occurring in sub-section (2) must necessarily mean that the female Hindu did not have any interest in the property prior to its acquisition under the instrument inter vivos, will, decree, etc. If prior to the date of the instrument, decree etc. the female Hindu had already acquired, title or interest, and the decree or instrument etc. does not do anything more than declare that title, it will not be correct to say that the acquisition of title or interest is under the decree or instrument to bring it within the scope of sub-section (2) of Section 14 (vide A.I.R. 1963 Mad. 50: A.I.R. 1962 Cal 438 and AIR 1962 Andh Pra 368).
11. Coming to the facts of the present case, as the recitals in Ex. 11/b show, at the partition Lakhmi was given some landp as a share for possession and enioyment. So, Lakhmi acquired right to the lands and came into possession and enjoyment of the same by virtue of the allotment to her under Ex 11/b The recitals in Ex. 11/b do not purport to create any restricted estate. Therefore, it cannot be said that under this instrument (Ex. 11/b) Lakhmi got a restricted estate which will attract the application of Section 14(2) of the Act. Learned counsel for appellants relies on Ex. 8 as a decree or order under which Lakhmi acquired a restricted estate, and as such, Section 14(2) will be applicable.
Even assuming that this order of the Settlement Officer is to be equated to a decree on order of a civil court, facts of the decision reported in ILR 1963 Cut 628 = (AIR 1963 Ori 162) are distinguishable. In that case, by the order of the Deputy Commissioner in deciding a claim for maintenance by a female Hindu she was granted a restricted estate in property wherein she had acquired no right previously. In the present case, as already stated. Lakhmi having been allotted certain lands under Ex. 11/b had already acquired right to that property prior to the date of Ex. 8, and Ex 8 did nothing more than declare the existence of such a right, Even otherwise, the contents of Ex. 8 show that the Settlement Officer assumed that those lands had fallen to the share of Ghano Barik, husband of Lakhmi, and therefore, she was entitled to have that limited estate by inheritance. In any view of the matter, it cannot be construed from Ex. 8 that Lakhmi acquired a restricted right to the property under the said order
12. None of the contentions advancedby appellants is sustainable. The appealtherefore fails and is dismissed with costs.