1. Shrimati Ram Rakhi, the plaintiff-appellant, filed this suit for possession of three rooms on the basis of her title. Achhru Mal was admittedly owner of the house in dispute. He died about 40 years ago. His son Kaka Ram had predeceased him leaving a widow by the name of Durga Devi and a daughter by the name of Ram Rakhi-plaintiff-appellant. Durga Devi continued residing in a portion of the house in dispute till her death which took place on 13th Dec., 1964. Her daughter Shrimati Ram Rakhi is married at Jullundur and she had been residing with her husband ever since her marriage. She mentioned in the plaint that after the death of Achhru Mal, his property was inherited by his predeceased son's widow Shrimati Durga Devi along with the other surviving son and grand-sons of Achhru Mal, that she remained in possession of the property as an heir and became its absolute owner due to the enforcement of the Hindu Succession Act. in the alternative, it was pleaded in the plaint that Shrimati Durga Devi was in possession of the disputed portion of the house in lieu of her right of residence and maintenance and thus she became full owner of this property due to the enforcement of the Hindu Succession Act. The suit was resisted on behalf of the defendant-respondents. They pleaded that Shrimati Durga Devi never became full owner of the portion in dispute and, therefore the plaintiff cannot claim possession of the same. It was further pleaded that Achhru Mal formed a joint Hindu family along with his four sons and this house was the property of that joint family. After the death of Achhru Mal, who was the manager and Karta of the joint Hindu family, the property passed on to the remaining coparceners by survivorship. Shrimati Durga Devi was not a coparcener and, therefore, she did not get any proprietary right in the house in dispute. It was not disputed that Shrimati Durga Devi had been residing in the disputed house till her death but it was contended that she used to live in that house as a female along with other ladies belonging to that family. It was not admitted that Durga Devi had remained in exclusive possession of the disputed portion and it was further contended that she was not residing in any portion of the disputed house as an owner, therefore, her right could not be enlarged by S. 14(1) of the Hindu Succession Act.
2. On the said pleadings of the parties, the trial Court framed the following issues:
1. Whether the plaintiff's mother was ever in possession of the property in the suit
2. Whether the property of Achhru Mal devolved by survivorship on the surviving coparceners ?
3. Whether Achhru Mal was a member of the joint Hindu family with the defendants. If so to what effect ?
4. Whether the plaintiff is entitled to the property in suit in her own right as heir of Durga Devi ?
Issues Nos. 1 and 4 were decided in favour of the plaintiff whereas issues Nos. 2 and 3 were decided in favour of the defendants. As a consequence of these findings, the plaintiff's suit was decreed. In appeal, the findings of the trial Court on issues Nos. 1 to 3 were not challenged. The only issue contested was issue No. 4, The learned Additional District Judge after discussing the entire evidence came to the conclusion that in the instant case the portion in dispute was never specifically given to Shrimati Durga Devi for the purpose of her residence. She being a member of the joint Hindu family had the right to live in joint family house like any other lady belonging to that family. Consequently, relying upon Bindroo v. Munshi, AIR 1971 J & K 142 ; Narayan Patra v. Tara Patrani, AIR 1970 Orissa 131 and other judgments, it was ultimately held that Shrimati Durga Devi was occupying the disputed portion without any title when the Hindu Succession Act came into force and she did not become full owner of this portion by virtue of the provisions of S. 14(1) of the Act. As a result of this finding, the decree of the trial Court was set aside and the plaintiff's suit was dismissed. Dissatisfied with the same, the plaintiff has come up in second appeal to this Court.
3. Learned counsel for the appellant contended that Shrimati Durga Devi was in possession of the suit property on account of her pre-existing right f her maintenance and residence being widow of predeceased son of Achhru Mal and, therefore, after coming into force of the Hindu Succession Ac, by virtue of the provisions of S. 14(1) thereof, since she died on 13th Dec., 1964. The plaintiff being her daughter is entitled to succeed to her estate. In support of his contention he referred to Vaddeboyina Tulasamma v. Vaddeboyina Sesha Reddi, AIR 1977 SC 1944; Gullapallik Krishna Das v. Vishumolakala Venkayya, AIR 1978 SC 361; Smt. Suhag Wanti v. Smt. Sodhan, AIR 1968 Punj and Har 24 and also to para 573 of Mulla's Hindu Law. He further submitted that the judgment of the Orissa High Court reported in Tara Patrani's case (supra) relied upon by the lower appellate Court has been overruled by their Lordships of the Supreme Court in Tulasamma's case (supra) and, therefore, the judgment of the lower appellate Court is liable to be set aside. Reference was also made to Sumeshwar Mishra v. Swami Nath Tiwari, AIR 1970 Pat 348; Bapusaheb Bhausaheb Patil v. Smt. Gangabai, AIR 1972 Bom 16 and Smt. Rati Bai v. Gugan Singh, 1978 Rev LR 597.
4. On the other hand, learned counsel for the defendant-respondents argued that the judgment of the Supreme Court in Tulasamma's case (supra) has been fully explained in Bai Vajia v. Thakorbhai Chelabhai, AIR 1979 SC 993. According to the learned counsel, even the judgment reported in Tulasamma's case (supra) also supports the case of the defendants. Of course, Shrimati Durga Devi had been residing in the house in dispute along with other coparceners of the joint Hindu family after the death of her husband Kaka Ram, being the widow of predeceased son of Achhru Mal, who was the karta of the family at that time. But according to the learned counsel, no charge of any specific portion of the house in dispute was ever created or admitted in favour of Shrimati Durga Devi and thus she never acquired any right as such of being a limited owner of the properly which could ripen subsequently into full ownership. The right of Shrimati Durga Devi for residence and maintenance was a personal right and in recognition of that right, no property or a portion of the house in dispute was ever specified for that purpose. Thus, according to the learned counsel, though she was in possession, being residing with the other coparceners of joint Hindu family in the house, yet she did not acquire any right therein as contemplated under Section 14(1) of the Hindu Succession Act.
5. I have herd the learned counsel for the parties at great length and have also gone through the case law cited at the bar.
6. It is the common case of the parties that no specific portion as such of the house in dispute was ever allotted Shrimati Durga Devi, though she was residing in the house along with other coparceners of the joint Hindu family. She had been residing therein till her death in 1964 without any controversy of any kind. Her right to reside in the joint family house is also not disputed by the defendants. She being the widow of the predeceased son Kaka Ram of Achhru Ram, has such a right in view of the provisions contained in para 573 of Mulla's Hindu Law which is to the following effect :--
'Where an undivided family consists of two or more males related as father and son or otherwise, and one of them dies leaving a widow, she is entitled to reside in the family welling-house in which she lived with her husband. If the house is sold by the surviving coparcener or coparceners without necessity, the sale does not affect her right, and the purchaser cannot evict her, at all events until another suitable residence is found for her. If the purchaser buys the house with full knowledge that the widow is residing and is being maintained in it, the purchaser is not entitled to oust her even though there may be other property belonging to the family out of which her maintenance can be derived. But if the sale is for a family necessity, she is liable to be evicted even though the purchaser has notice at the time of purchase that she was in occupation of the house. Similarly the right of residence cannot prevail against the husband's debts.' Thus the main question to be decided in this case it that when Shrimati Durga Devi was never given any specific portion of the house as such for her residence and maintenance, though she had been residing therein along with other members of the joint Hindu family, whether she acquired any right there in the property as contemplated any Section 14(1) of the Hindu Succession Act which is to the following effect :--
'14(1) Any property possessed by a female Hindu, whether acquired before or after 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' including both movable and immovable property acquired by a female Hindu by inheritance or device, or to a partition, or in lieu of maintenance, or arrears of maintenance, or by gift from any person, whether a relative or not, before or after the marriage, or by her own skill or exertion, or by purchase or prescription, or in any other manner whatsoever and also any such property held by her as Stridhana immediately before commencement of this Act.'
In AIR 1979 SC 993 the judgment rendered earlier in Tulasamma's case (supra) reported in AIR 1977 SC 1944 has been summarised. The propositions laid down therein in paragraph 27(2) is that though the widow's right to maintenance is not a right to property but it is undoubtedly a pre-existing right in property, i.e. it is a us ad rem, not us in rem, and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a decree from the Civil Court. The main reliance has been placed by the learned counsel for the defendant-respondents on this proposition. Further, in proposition No. 6 it has been stated that it is equally well settled that the possession of the widow, however, must be under some vestige of the claim, right or title, because Section 14(1) does not contemplate the possession of any rank trespasser without any right or title. It has been further observed by their Lordships that the right of the widow to be maintained is of course not a us in rem, since it does not give her any interest in the joint family property but it is certainly us and rem i.e., a right against the family property. Therefore, when specific property is allotted to the widow in lieu of he claim for maintenance, the allotment would be in satisfaction of her us ad rem namely, the right to be maintained out of the joint family property, It would any pre-existing right in the widow. The widow would be getting the property by virtue of her pre-existing right, the instrument giving the property being merely a document effectuating such pre-existing right and not making a grant of the property to her for the first time without any antecedent right or title. Since to specific portion was ever allotted to the widow Shrimati Durga Devi, the question of her acquiring any limited ownership in the portion in her occupation could not arise because limited ownership in the concerned Hindu female is a since qua non for the applicability of sub-section (1) of Section 14 of the Act. For that purpose, have the occupation, control and usufruct of it to the exclusion of all other members of the coparcenary. It will be only under these circumstances, if proved, that the widow will acquire limited ownership in the said property as contemplated under sub-section (1) of Section 14 of the Act.
7. In Tulasammas case (supra) it has been observed in para 55 that it is true that a widow's claim for maintenance does not ripen into a full-fledged right to property, but nevertheless it is undoubtedly a right which in certain cases can amount to a right property where it is charged. Of course once the property is charged in lieu of maintenance and residence then it will be in recognition of her pre-existing right in that respect and will ripen into full ownership after coming into force of the Act. In the present case, as said earlier, no specific portion of the house in dispute was wither charged, or any right created or allotted in recognition of her right of maintenance or residence. The only thing done was that the widow was allowed to continue to reside in the joint family house in the same manner along with other residing therein. All the cases cited at the Bar are cases where some sort of compromise or document was executed whereby the widow was given the property in lieu of her right of maintenance and, therefore, it was in these circumstances, held that once the property is given to will become full owner thereof after coming into force of the Act, in case she had that right pre-existing. No such question arises in the present case because nothing was done in recognition of her pre-existing right of maintenance and residence. The widow was allowed to continue to reside in joint family house without apportioning any particular portion for her residence as such.
8. Reference was also made to Badri Pershad v. Smt. Kanso Devi, AIR 1970 SC 1963 wherein the term 'acquired' in sub-section (1) of Section 14 was considered. It has been observed therein that the word 'acquired' in sub-section (1) has also to be given the widest meaning. This would be so because of the language of the Explanation which makes sub-section (1) applicable to acquisition of property in manners mentioned therein. In that case also the widow got the property on partition by metes and bounds though on partition by metes and bounds though by means of arbitration which resulted in an award. In these circumstances, it was held therein that mere fact that there was a partition by means of arbitration which resulted in an award and a decree based on it would not bring the matter within sub-section (2) as the provisions of sub-section (2) as the provisions of sub-section (1) became fully applicable particularly in view of the express term of the Explanation.
9. Though in Tulasamma's case (AIR 1977 SC 1944)(supra), he judgment of the Orissa High Court in Tara Patrani's case (AIR 1970 Orissa 131)(supra) was considered and the view expressed therein was not accepted but at the same time, in para 55 it has been observed that 'it is obvious that the conclusions arrived at by the High Court are not warranted by the express principles of Hindu Sastric law. It is true that a widow's claim for maintenance does not ripen into a full-fledged right to property, but nevertheless it is undoubtedly a right to property, but nevertheless it is undoubtedly a right which in certain cases can amount to a right to property where it is charged.' Thus considering the observations made by their Lordships of the Supreme Court in Thakorbhai Chelabhai's case (AIR 1977 SC 993)(supra), I am of the considered opinion hat in the present case Shrimati Durga Devi widow, never acquired any limited estate in the house in dispute or in any portion thereof and, therefore, the question of her becoming an absolute owner after coming into force of the Act did not arise. She had a personal right of maintenance and to reside in the joint family house which came to an end after her death.
10. For the reasons recorded above, this appeal fails and is dismissed with on order as to costs.
11. Appeal dismissed.