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Smt. Suhag Wanti and anr. Vs. Smt. Sodhan (Died) and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. Second Appeal No. 587 of 1966
Judge
Reported inAIR1968P& H24
ActsHindu Succession Act, 1956 - Sections 14(1) and 14(2)
AppellantSmt. Suhag Wanti and anr.
RespondentSmt. Sodhan (Died) and ors.
Appellant Advocate G.P. Jain and; S.S. Sodhi, Advs.
Respondent Advocate S.L. Puri and; Munshwar Puri, Advs.
DispositionAppeal dismissed
Cases Referred and Susadhar Chandra Dey v. Smt. Tara Sundari Dasi
Excerpt:
.....the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of..........of smt. sodhan to retain the house for her residence and maintenance existed before passing of the decree. the decree which is being executed simply recognised this preexisting right. in the circumstances it cannot be urged that smt. sodhan acquired the house under a decree of the court and that being so her case is not covered by sub-section (2) but by sub-section (1) of section 14 of the act. in this connection reference may be made to ude chand v. mst. rajo, (1966) 68 pun lr 382 = (air 1966 punj 329), which laid down: 'the word 'acquired' as used in sub-section (2) of section 14 of the hindu succession act has to be given a restricted meaning and would cover those cases only where the hindu female had no interest previously in the property and it was for the first time by virtue of.....
Judgment:

P.D. Sharma, J.

1. Briefly stated the facts giving rise to the present execution second appeal against the order of the learned Additional District Judge, Ferozepur, dated the 21st February, 1966, are these. Khushi Ram and Mohan Lal were two brothers. Mohan Lal died first. He was survived by his widow Smt. Sodhan three married daughters and two unmarried, daughters namely Smt. Santosh and Smt. Sushila Devi. Khushi Ram filed a suit on 17th March, 1945, for possession of the house in dispute against his sister-in-law Smt. Sodhan and two unmarried nieces Smt. Sushila Devi and Smt. Santosh in the Court of the Subordinate Judge 1st Class, Ferozepur. It was alleged that the house was the property of the joint Hindu Family comprising of Khushi Ram and Mohan Lal two brothers, that on the death of the latter it devolved on the former by the rule of survivorship.

A portion of the house is said to have been in possession of Smt. Sodhan for her residence and the remaining is said to have been forcibly occupied by her after the death of her husband. Smt. Sodhan and her two daughters conceded that the house was purchased out of the joint Hindu family funds but all the same two brothers did not form Joint Hindu Family and added that they had been living in the house since the time of its purchase. They continued to state that the house was barely sufficient for their residence and maintenance. The learned Senior Subordinate Judge while deciding a preliminary issue held that the question of maintenance and residence raised by the defendants could not be decided in the suit.

He framed the following three issues on merit-

1. Were Mohan Lal and the plaintiff not members of Joint Hindu family?

2. Is the house in dispute Joint Hindu Family property?

3. Was the plaintiff in possession of the portion sued and was he dispossessed by the defendant?

Issue No. 1 was decided against the defendants and issue No. 2 in favour of the plaintiff. As regards issue No. 8 he observed that the plaintiff had been living in a portion of the house in dispute. In the result the plaintiffs suit was decreed for the portion of the house which is said to have been with him before he was forcibly dispossessed therefrom by the defendants.

Smt. Sodhan and Smt. Sushila defendants preferred an appeal against the above judgment and decree of the trial Judge. Smt. Santosh was impleaded as pro forma defendant. Khushi Ram plaintiff died during the pendency of the appeal in the High Court. His widow and minor son Smt. Suhag Wanti and Jagdish Rai were brought on record as his legal representatives. The High Court affirmed the findings of the trial Judge on Issues 1 and 2 but reversed hig decision on Issue No. 3 and further observed that the trial Court was not justified in holding that the question of maintenance and residence raised by the defendants could not be gone into in the present suit. The judgment and decree of the trial Court were set aside and the suit was remanded to the trial Court for fresh decision after determining the following two issues :

1. How much maintenance are the defendants entitled to?

2. What portion of the house in dispute should be sufficient for residence for defendants Nos. 1 to 3?

The trial Judge finally granted a decree to Smt. Suhag Wanti and Jagdish Rai for possession of the house subject to the condition that they would not be entitled to execute till the marriage of Smt. Santosh and Smt. Sushila Devi or the death of Smt. Sodhan whichever was later. Smt. Santosh and Smt. Sushila both after the passing of the decree got married. Smt. Sodhan also died. Thereafter Smt. Suhag Wanti and Jagdish Rai sought execution of the decree against the five daughters of Mohan Lal and Smt Sodhan deceased who resisted it on the ground that Smt. Sodhan in her life time had become full owner of the house in dispute under Section 14(1) of the Hindu Succession Act, hereinafter referred to as the Act. The decree holders on the other hand maintained that Smt. Sodhan was given the house in lieu of her right of maintenance and residence under a decree of the Court and as such her case fell within the purview of Sub-section (2) of Section 14 of the Act. She, therefore, could not become full owner thereof on the enforcement of the Act.

The executing Court after a careful review of the case law found that the case fell within the orbit of Sub-section (1) of Section 14 of the Act and Smt. Sodhan had become full owner thereof and the decree could not be executed against her five daughters who as her heirs were entitled to succeed to her estate, The execution application was dismissed and the parties were left to bear their own costs.

2. The decree-holders felt aggrieved from this order and preferred an appeal which came up for hearing before the learned Additional District Judge who agreed with the Court below that Smt. Sodhan with the passing of the Hindu Succession Act had become full owner of the house and thus dismissed the appeal. It is this order which has been impugned before me,

3. The learned counsel for the decree-holders-appellants strenuously urged that the present case fell within the orbit of Sub-section (2) of Section 14 of the Act because the house for the first time was given to Smt. Sodhan and her two daughters for their maintenance and residence by the judgment and decree of the learned Subordinate Judge, 1st Class, dated the 29th January, 1951, Exhibit D. A/1. The case of the other side is that the aforesaid judgment and decree only recognised Smt. Sodhan's and that of her two daughters' right of maintenance and residence in the house which already vested in them.

The learned Judges while allowing regular first appeal against the judgment and decree of the trial Judge in the original suit found as a fact that the house in dispute was in the possession of Smt. Sodhan widow of Mohan Lal and that Khushi Ram husband of Smt Suhag Wanti decree-holder and father of Jagdish Rai was never in possession thereof. They further observed-

'It cannot be said that this right of maintenance is merely personal in the sense that it has no reference to the property which he gets by survivorship. That being so, provision should be made for the maintenance and residence of the defendants before the plaintiff can be given possession of the property in suit'.

The learned Subordinate Judge who decided the suit after the remand also came to the conclusion that Smt. Sodhan was in possession of the house and not her deceased husband's brother Khushi Ram. He then proceeded to allow Smt. Sodhan to retain the house for her residence and maintenance. It is thus clear that the right of Smt. Sodhan to retain the house for her residence and maintenance existed before passing of the decree. The decree which is being executed simply recognised this preexisting right. In the circumstances it cannot be urged that Smt. Sodhan acquired the house under a decree of the Court and that being so her case is not covered by sub-section (2) but by Sub-section (1) of Section 14 of the Act.

In this connection reference may be made to Ude Chand v. Mst. Rajo, (1966) 68 Pun LR 382 = (AIR 1966 Punj 329), which laid down:

'The word 'acquired' as used in Sub-section (2) of Section 14 of the Hindu Succession Act has to be given a restricted meaning and would cover those cases only where the Hindu female had no interest previously in the property and it was for the first time by virtue of the gift, will or other modes mentioned in this sub-section that the property was acquired by her. Where a female was in possession of land in which she had acquired the widow's estate at death of her husband, her case would be covered by Sub-section (1) of the section and not by Sub-section (2), subsequent execution of compromise between her and her husband's collaterals will not affect her position'.

The same rule of law was iterated in Hira Lal v. Smt. Sharbati Devi, (1966) 68 Pun LR 51; Gadam Reddayya v. Varapula Venkataraju AIR 1965 Andh Pra 66; P.K. Saraswathi Ammal v. Krishan Iyer, AIR 1965 Ker 226; Raghunath Sahu v. Bhimsen Naik, AIR 1965 Orissa 59, Smt Janak Dulari v. District Judge, Kanpur, AIR 1961 All 294 and Susadhar Chandra Dey v. Smt. Tara Sundari Dasi, AIR 1962 Cal 438.

4. Smt. Sodhan admittedly died after coming into force of the Act. She, therefore, became full owner of the house before her death. The decree-holders could not successfully claim possession of the house in execution of the decree. The two Courts below were correct in dismissing their execution application.

5. The appeal fails and is dismissed with no order as to costs.


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