Skip to content


Arakhita Das Vs. Hari Mohapatra and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 218 of 1961
Judge
Reported inAIR1963Ori162; 29(1963)CLT397
ActsHindu Succession Act, 1956 - Sections 14(2); Bengal Agra and Assam Civil Courts Act, 1887
AppellantArakhita Das
RespondentHari Mohapatra and ors.
Appellant AdvocateS. Misra, ;D. Singh and ;P.C. Misra, Advs.
Respondent AdvocateA. Das, ;B.B. Rath and ;L. Rath, Advs.
DispositionAppeal dismissed
Cases ReferredBlanda v. Duni Chand
Excerpt:
.....decree was that the widow would enjoy the propertytill her death, but there was no restriction against herpower of alienation. it is well settled that the limited heir is not a tenant for life but is owner of the property subject to certain restriction alienation. when therefore by the order of the deputy commissioner the widow was given the restricted estate to the effect that she would enjoy it for life, a limited estate, well known in hindu law and which is usually called 'widow's estate',was created and such estate carried with it the necessary restrictions on her power of alienation. it need not have expressly stated that though she would enjoy the property till death, she had no power of alienation. i am satisfied that a limited estate, as understood in hindu law, was created in..........that civil court would mean those which have been constituted under the bengal, agra and assam civil courts act (xiii) of 1887. i am unable to accept such a contention. the matter came up for consideration before their lordships of the judicial committee in 9 ind app 174, nilamoni singh deo v. taranath mookherjee. that case arose out of bengal rent act, x of 1859 under which certain classes of rent suits were made exclusively triable by revenua officers in accordance with the procedure laid down therein. the question was whether the revenue officials exercising the powers under that act acted as civil courts. that act contained several provisions making distinction between revenue courts and civil courts, and on the strength of those provisions it was contended that the rent courts.....
Judgment:

G.K. Misra, J.

1. Defendant-3 is the appellant. Plaintiff's case is as follows: The disputed property belonged to late Madhu Mohapatra. Madhu adopted late Antarjyami, father of the plaintiff. Paluni, widow of Madhu, died on August 21, 1957. During the settlement operations of 1916, Paluni and Antarjyami did not pull on well. Palu'ni claimed maintenance. The matter was decided in her favour by the Superintendent of the ex-State of Nayagarh. In Miscellaneous case No. 27 of 1916-17, the Deputy Commissioner of Angul passed the following order:

'I dismiss the appeal and direct that the land be divided into two equal shares. Half will be recorded in the name of Paluni as her maintenance. She will enjoy the land until her death. The other half will be recorded in the name of Antarjyami with Paluni as guardian. She will have full right to arrange for the cultivation of her share of the land until her death.'

After this decision, there existed good feelings between Paluni and Antarjyami and they continued to live together. Paluni and the plaintiff also lived together after the death of Antarjyami. On February 28, 1957 she executed a registered sale deed (Ex. A) in respect of the disputed land in favour of defendant No. 1 who is her brother's daughter's son. The sale was without consideration and legal necessity. Defendant No. 1 transferred the very property in favour of defendants 2 and 3 by a registered sale deed (Ex. B). On April 16, 1957, and by another registered sale deed (Ex. B/1) in favour of defendant-3 on the same day. These sales are also without consideration and legal necessity. As defendants 2 and 3 threatened to dispossess the plaintiff, the suit has been filed for declaration of title and confirmation of possession, or, in the alternative, for recovery of possession. The suit was filed on May 16, 1958 after the death of Paluni.

2. Defendants contested the suit challenging the adoption of Antarjyami and asserting that Paluni was the owner of the suit property in exclusive possession. The sales were for consideration and Paluni became full owner after 1956.

3. The Courts below concurrently found that Antarjyami was adopted by Madhu, that the disputed property was separately possessed by Paluni towards her maintenance and that there was consideration for the sale deeds (Exs. A, B and B/l). The alienees did not press the question that the sales were for legal necessity. The finding must therefore be that the sales were without legal necessity.

4. The Trial Court dismissed the suit on the finding that after the passing of the Hindu Succession Act, 1956 (hereinafter called the Act) Paluni was a full owner and th& alienations being for consideration were valid and that the plaintiff cannot question the alienations. The lower Appellate Court held that Paluni was not full owner and that her rights were restricted under the decree passed by the Deputy Commissioner which, according to him, was a Civil Court, and as the sales were not for legal necessity the alienations were not binding on the plaintiff, the next reversioner. He accordingly decreed the suit subject to the condition that the plaintiff would pay a sum of Rs. 600/- to defendants 2 and 3 and another sum of Rs. 100/- to defendant No. 3, which were the consideration under sale deeds (Exs. B and B/1).

5. Defendant No. 3 has filed the second appeal against the appellate decree declaring that the alienations were not binding on the plaintiff while the plaintiff has filed a cross-objection against that part of the decree directing refund of consideration.

6. Mr. Misra contends (i) that the decree of the Deputy Commissioner, Angul, is not a decree or order of the Civil Court, and (ii) that under the orders of the Deputy Commissioner the only restricted right created was that the widow would enjoy the disputed land till her death and there was no express prohibition against alienations by the widow. As the restriction under Section 14(2) of the Act is to be spelt out of the grant and cannot be implied, Section 14(2) has no application to this case.

7. The operative portion of the order of the Deputy Commissioner in his judgment dated October 19, 1916 (Ex. 2)has already been quoted. The restriction imposed was that the widow would enjoy the land until her death. There is no express restriction that the widow had no power of alienation. Section 14 of the Act may be quoted-

'14. (1) Any property possessed by a female Hindu,whether acquired before or after the commencement of thisAct, shall be held by her as full owner thereof and not alimited 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, ar 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.'

8. The lower Appellate Court on a construction of Ex. 2 held that the judgment of the Deputy Commissioner was passed in his capacity as a Civil Court, as ordinarily known, and not in his capacity as the highest Revenue Court. On a construction of the document and the allegations in the plaint that it arose out of a dispute in course of settlement proceedings, the judgment was delivered by the Deputy Commissioner in appeal as the highest Revenue Court and not as the Civil Court as it is ordinarily understood. The question that still needs consideration is as to the import of 'Civil Court' within Section 14(2). Mr. Misra contends that Civil Court would mean those which have been constituted under the Bengal, Agra and Assam Civil Courts Act (XIII) of 1887. I am unable to accept such a contention.

The matter came up for consideration before their Lordships of the Judicial Committee in 9 Ind App 174, Nilamoni Singh Deo v. Taranath Mookherjee. That case arose out of Bengal Rent Act, X of 1859 under which certain classes of rent suits were made exclusively triable by Revenua Officers in accordance with the procedure laid down therein. The question was whether the Revenue Officials exercising the powers under that Act acted as Civil Courts. That Act contained several provisions making distinction between Revenue Courts and Civil Courts, and on the strength of those provisions it was contended that the Rent Courts were not Civil Courts. In rejecting this contention, Lord Hobhouse observed as follows :

'It must be allowed that in those sections there is a certain distinction between the Civil Courts there spoken of snd the Rent Courts established by the Act, and that the Civil Courts referred to in Section 77 and the kindred sections mean Civil Courts exercising all the powers of Civil Courts as distinguished from the Rent Courts which only exercise powers over suits of limited class. In that sense there is a distinction between the terms; but it is entirely another question whether the Rent Court does not remain a Civil Court in the sense that it is deciding on purely civil questions between persons seeking their Civil Rights.'

These observations show that the Courts constituted for deciding purely civil questions between persons seeking their Civil Rights must be considered to be Civil Courts, notwithstanding that they are created by special statute and arementioned in that statute as distinct from Civil Court. The true import of such a distinction is that while special Courts have jurisdiction over a limited class of suits specified in the statute, the jurisdiction of the Civil Court is not limited to any class of suits -- (Sriramarao v. Suryanarayanamurthi, AIR 1954 Mad 340). In that sense Ex. 2 must be construed as an order of the Civil Court though it was passed by the Deputy Commissioner of Angul in exercise of highest revenue jurisdiction.

9. Mr. Misra makes a distinction between 'limited' and'restricted'. According to him the only restriction imposedby the decree was that the widow would enjoy the propertytill her death, but there was no restriction against herpower of alienation. In support of the contention he placesreliance on a Single Judge decision of the Punjab High Courtreported in Blanda v. Duni Chand, AIR 1963 Punj 34. Inthat case the finding was that by the gift the widow wasmerely given a limited estate and not a full estate. Butthe limitation imposed upon her was that she could not sellor mortgage the property. His Lordship construed this asto mean that there was no embargo on her against makinggift of the property. On this principle that the restrictionmust be spelt out of the grant and it cannot be implied, hisLordship held that the donee from the widow acquired fullownership -- I am unable to accept this decision aslaying down the correct law. It would appear from para174 (4) of Mulla's Hindu Law that there is no distinctionbetween limited and restricted estates. Both the wordsmean the same thing.

It is well settled that the limited heir is not a tenant for life but is owner of the property subject to certain restriction alienation. The whole estate is for the time being vested in her and she represents it completely. The restrictions on her power of alienations are, however, in separable from her estate. When therefore by the Order of the Deputy Commissioner the widow was given the restricted estate to the effect that she would enjoy it for life, a limited estate, well known in Hindu Law and which is usually called 'widow's estate', was created and such estate carried with it the necessary restrictions on her power of alienation. It need not have expressly stated that though she would enjoy the property till death, she had no power of alienation. On the contrary, if the alienation was for legal necessity, she had full power of alienation. The restrictions were inherent in the legal conception itself and in the nature of the estate created in her favour which was a life estate.

The expression 'full ownership' on the other hand connotes a right indefinite in point of user, unrestricted in point of disposition, unlimited in point of duration and heritable as such by the heirs of the owner. It is not legally accurate to say that the restricted estate must be prescribed in express terms. Whether in fact a restricted or limited estate has been created or not must be a question of construction of the instrument, decree, order or award with the assistance of the ordinary rules of construction. The restriction in the Punjab case that the widow had no right of alienation by way of sale or mortgage was merely descriptive of the restricted right that she had no right of transfer. In that case when the widow was given no right of transfer for consideration, it is somewhat difficult to conceive that she was given the right to make a gift. I am satisfied that a limited estate, as understood in Hindu Law, was created in favour of Paluni by the order of the Deputy Commissioner, Angul. Section 14(2) of the Act operates with full force.

10. While under Section 14(1) full ownership was intended to be given in certain circumstances to the widowin case of 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 operation of Sub-section (1). The operation of both the sub-sections is independent of each other. The lower Appellate Court came to the correct conclusion that the estate alienated by Paluni was a limited estate and that as it was not for legal necessity, the alienation was not binding on the plaintiff.

11. The lower Appellate Court allowed certain equities in favour of the alienees on setting aside the alienations. As the cross-objection was not seriously pressed I do not want to disturb that part of the order.

12. In the result both the appeal and the cross-objection fail and are dismissed. Parties to bear their owncosts.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //