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Nand Singh Vs. Nachhatar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 189 of 1970
Judge
Reported inAIR1975P& H45
ActsHindu Succession Act, 1956 - Sections 4(1), 14, 14(1) and 14(2)
AppellantNand Singh
RespondentNachhatar Singh and ors.
Appellant Advocate D.S. Nehra, Adv.
Respondent Advocate H.L. Sibal and; R.C. Setia, Advs.
DispositionAppeal dismissed
Cases ReferredPiara Lal v. Atma Singh
Excerpt:
.....right to alienate it except for legal necessity, and eniov its user for her lifetime clearly indicates that ber right to be maintained as a widow out of the estate of her deceased husband was recognised. sukhdevi, air 1970 rai 285. it was held that a widow's right to receive maintenance was one of an indefinite character which, unless made a charge upon the property, was enforceable only like anv other liability in respect of which no charge existed......by a decree of a court. in lakhmi chand v. smt. sukhdevi, air 1970 rai 285. it was held that a widow's right to receive maintenance was one of an indefinite character which, unless made a charge upon the property, was enforceable only like anv other liability in respect of which no charge existed. but where maintenance had been made a charge upon the property, and the property was subsequently sold, the purchaser must hold it subiect to the charge. a widow had a right of maintenance in all ioint family properties, but she had no title of any sort in those properties, till a specific property or a portion thereof was allotted to her for her maintenance. learned counsel also referred to a bench decision of the mysore high court in anandibai v. sonabai mahadev rajadhyaksha. air 1974 mys.....
Judgment:

Prem Chand Pandit, J.

1. The facts giving rise to this letters patent appeal are these. Isher Singh, a Sidhu Jat of village Kaoni, Tehsil Muktsar, District Ferozepur, was the last male-holder of the property in dispute. He died on 12th April, 1942, leaving behind a widow Shrimati Har Kaur and her step-son Nand Singh. The mutation of the estate of the deceased, including the land in dispute, measuring 155 Kanals 15 Marias, was sot effected bv Har Kaur in her own favour. At that time, she never mentioned to the Revenue Authorities even about the existence of Nand Singh. In 1944, Nand Singh brought a suit against Har Kaur for possession of the entire land left bv his father on the ground that he, being his son, was entitled to the same. During the pendency of that suit, a compromise was effected between the parses on 19th June. 1945. bv which Har Kaur gave up possession of l/3rd of the pro-pertv left bv Isher Singh and with regard to the remaining 2/3rd it was settled that she would remain in its possession during her lifetime, but would not alienate the same without consideration and legal necessity. After her death, even this 2/3rd share would go to Nand Singh. This compromise was incorporated in the order of the Court, which is marked as Exhibit p-7. In 1956, the Hindu Succession Act. 1956. hereinafter called the Act, came into force and thereafter on 15th December. 1961. taking advantage of the provisions of the Act, Har Kaur sold the land in dispute, which was in her possession at that time, to Nachhattar Singh and others for Rs. 35,000/-. This sale was then challenged bv Nand Singh by bringing a suit in January 1962 against Har Kaur and her vendees for a declaration that the said alienation, being w thout consideration and legal necessity, was void and ineffective against his reversionary interests. The property, according to the plaintiff, was ancestral and the parties were governed by custom in matters of succession and alienation. Har Kaur was not competent to alienate the said property without necessity and she could only have its usufruct during her lifetime.

2. The suit was resisted by the vendees alone and Har Kaur did not file any written statement. They pleaded that the sale in their favour was for consideration and necessity. Har Kaur had, by virtue of the provisions of the Act, become the full owner of the property on the date of sale, as she had inherited the same on the death of her husband. It was also said that Nand Sineh was not the son of Isher Singh.

3. The trial Judge did not decide whether the land in dispute was ancestral and the parties were governed bv custom or not. It was found that the plaintiff was the son of Isher Singh and the sale in question had been made without legal necessity. The suit was. however, dismissed on the finding that as a result of the enforcement of the Act, Har Kaur had become the absolute owner of the land in question, which was indisputably in her possession.

4. When the matter went in appeal before the learned Additional District Judge, he came to the conclusion that Har Kaur had not become the full owner of the property, as she had acquired the same under the decree of a Civil Court, which wag based on a compromise with her son and in view of the provisions of Section 14(2) of the Act. she held the property as a limited owner under the terms of that compromise. On that finding, the appeal was accepted and the plaintiff's suit decreed. It might be stated that the other findings of the trial Court were, however, confirmed bv the learned Judge.

5. Against that decision, the vendees came in second appeal to this Court, which was accepted by a learned Single Judge. He found that bv the compromise, Exhibit P-7. the right to the land in dispute was not conferred on Har Kaur, for the first time, because she was the widow of the last male-holder and at least entitled to maintenance. Even if it be held that Nand Singh was her step-son, it could not be disputed that on the death of her husband, she. as his widow, had to be maintained out of the estate of her husband. The fact that under the compromise, she was given 2/3rd of the property without any right to alienate it except for legal necessity, and eniov its user for her lifetime clearly indicates that ber right to be maintained as a widow out of the estate of her deceased husband was recognised. That being so, the provisions of Section 14(2) of the Act would not be attracted and the case would be covered by Sub-section (1) of Section 14. under which she must be held to have become the full owner of the property in question and she could, therefore, pass a valid title to the vendees. The learned Judge relied on a Bench decision of this Court in Ude Chand v. Mst. Raio. 68 Pun LR 382 = (AIR 1966 Puni 329) where it was held;

'That 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 bv virtue of the gift, will or other modes mentioned in this sub-section that the property was acquired by her,'

As a result, the appeal was accepted, the decree of the Lower Appellate Court reversed and that of the trial Court restored. Against this decision, the present letters patent appeal hag been filed by the plaintiff Nand Singh.

6. The sole point that was argued by the learned counsel for the appellant was whether the present case was governed by the provisions of Sub-section (1) or (2) of Section 14 of the Act. If Sub-section (1) applies, then the decision of the learned Single Judge is correct and if, on the other hand, Sub-section (2) is attracted in that event the plaintiff's suit has to be decreed.

7. Section 14 reads--

'14 (1) Any property possessed bv 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 limited owner.

Explanation-- In this sub-section, 'property' includes both movable and immovable property, acquired by a female Hindu bv inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or bv 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 bv prescription, or in any other manner whatsoever, and also any such property held bv her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in Sub-section (1) shall apply to anv property acquired bv way of gift or under a will or anv other instrument or under a decree or order of a Civil Court or under an award where the terms of the sift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.'

8. It has been held by the Supreme Court that while determining whether a particular case is governed bv Sub-section (1) or Sub-section (2) of Section 14, the section has to be read as a whole and it will depend on the facts of each case whether the same is governed by Sub-section (1) or (2). The word 'possessed'' in Sub-section (1) has been used in its widest connotation and it may be either actual or constructive or in any form recognised by law. In the context in which it has been used in Section 14 it means the state of owning or having in one's hand or power. The word 'acquired' in Sub-section (1) has also to be given the widest possible meaning. This will be so. because of the language of the explanation, which makes Sub-section (1) applicable to acquisition of property in manners mentioned therein. Sub-section (2) is more in the nature of a proviso or an exception to Sub-section (1). It comes into operation onlv if acquisition in any of the methods incorporated therein is made for the first time without there being anv pre-existing right in the female Hindu, who is in possession of the property (See in this connection Badri Pershad v. Smt. Kanso Devi. AIR 1970 SC 1963). It is, therefore, clear that sub-section (2) will aPPlv in a case where a female Hindu, who is in possession of the property, had no right previously in the property and it was for the first time that by virtue of the gift, will or anv other mode mentioned in that sub-section, the said property was acquired by her. It was conceded that the property in Question was in possession of Har Kaur at the time of the sale and it belonged to her deceased husband. It was further conceded that she was entitled to maintenance out of the estate of her husband. What was seriously disputed by the learned counsel for the appellant was that although Har Kaur was entitled to maintenance out of the propertv left bV her husband, that did not ipso facto create a right in the property of the deceased in her favour and the alleged right was not attached, to use the words of the learned counsel, to his property. That being so, she had no right in the property. That could be done only bv creating a charge on the said property in her favour. Otherwise, her remedy was to file a suit for the recovery of her maintenance against the leeal heir, who was in possession of the property, and get a decree. If he refused to pay the said maintenance, then she could recover the same from the estate of her husband bv executing the said decree. The right in the propertv in the instant case, according to the learned counsel, was created in favour of Har Kaur only by the compromise. Exhibit P-7. Reliance for this submission was placed on Sections 27 and 28 of the Hindu Adoptions and Maintenance Act, 1956. and para. 569 of Mulla's Hindu Law. whore it was stated that the claim, even of a widow, for maintenance was not a charge upon the estate of her deceased husband whether ioint or separate, until it was fixed or charged upon the estate. That mav be done by a decree of a Court. In Lakhmi Chand v. Smt. Sukhdevi, AIR 1970 Rai 285. it was held that a widow's right to receive maintenance was one of an indefinite character which, unless made a charge upon the property, was enforceable only like anv other liability in respect of which no charge existed. But where maintenance had been made a charge upon the property, and the property was subsequently sold, the purchaser must hold it subiect to the charge. A widow had a right of maintenance in all ioint family properties, but she had no title of any sort in those properties, till a specific property or a portion thereof was allotted to her for her maintenance. Learned counsel also referred to a Bench decision of the Mysore High Court in Anandibai v. Sonabai Mahadev Rajadhyaksha. AIR 1974 Mys l and a Single Bench decision of the Madras High Court in Thatha Gurunadham Chetti v. Smt. Thatha Naveenthamma, AIR 1967 Mad 429 in this very connection.

9. It is unnecessary to discuss this contention of the learned counsel for the appellant, because, even accepting his argument that the right of maintenance of a widow was not a charge on the property of her deceased husband and the same had to be created by the instrument, in the instant case, under the law widow's maintenance was a charge on the whole and every part of the husband's estate and was enforceable against the heir in possession of the property of her husband. In this connection reference mav be made to paras. 16 and 17 of the Rattigan's Customary Law. They are as under:--

'16. In the presence of a male descendant of the deceased his widow is ordinarily only entitled to suitable maintenance, whether such descendant is the issue of the surviving widow or of another wife.

17. Such maintenance is a charge against the whole and every part of the husband's estate, and subject to the two succeeding paragraphs, is enforceable against the heir in possession, or those claiming under him.'

10. In the present case, the last male-holder, as already mentioned above, was a Sidhu Jat of Tehsil Muktsar in Ferozepur District, It ig undisputed that the initial presumption in the case of a dominant agricultural tribe such as Jats, is that thev are governed bv custom. (See in this connection a Full Bench decision of this Court in Piara Lal v. Atma Singh, 1951-53 Pun LR 335). Isher Singh had died in April 1942 and the compromise, in the instant case, was effected on 19th June, 1945, lone before the Hindu Succession Act. 1956. and the Hindu Adoptions and Maintenance Act. 1956, came into force and at that time the parties were governed bv Customary Law and it was only by virtue of Section 4(1)(a) of both these Acts that any text, rule or interpretation of Hindu Law or anv custom or usage as part of that law in force immediately before the commencement of these Acts ceased to have effect with respect to any matter, for which a provision was made in the said Acts. When the last male-holder died and the compromise was effected, the parties were governed bv the Customarv Law, under which a widow had a right of maintenance and the same was a charge on the whole and every part of her husband's estate. Har Kaur had. therefore, a preexisting right in the property of her husband, because she had admittedly a right of maintenance therein. She was, therefore, in possession of the property in dispute in lieu of maintenance when the Act came into force and as such by virtue of the provisions of Section 14(1) of the same, she had become a full owner of the said property. Reference may also be made to para. 559 of Mulla's Hindu Law. where it is stated:

'(1) A widow, who does not succeed to the estate of her husband as his heir, is entitled to maintenance--

(i) out of her husband's separate property; also

(ii) out of property in which he was a coparcener at the time of his death.

(2) A widow does not lose her right of maintenance out of the estate of her husband even though she may have lived apart from him in his lifetime without any justifying cause and was living separate from him at the time of his death.'

11. According to this paragraph, the widow's right of maintenance is a right in and attached to the property of her deceased husband. This right of Har Kaur existed independently of the compromise. Exhibit P-7. and it was not for the first time that by virtue of that compromise the property in dispute was acquired by her.

12. No other point was argued before us.

13. In view of what I have said above, this appeal fails and is dismissed. In the circumstances of this case, however, I will leave the parties to bear their own costs throughout.

Rajendra Nath Mittal, J.

14. I agree.


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