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Kusumgauri Vs. Umiben and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtGujarat High Court
Decided On
Case NumberSecond Appeal Nos. 792 of 1969 and 209, 260 and 544 of 1970
Judge
Reported inAIR1975Guj126; (1975)0GLR222
ActsHindu Succession Act, 1956 - Sections 14(1); Hindu Women's Rights to Property Act, 1937
AppellantKusumgauri
RespondentUmiben and ors.
Appellant Advocate J.C. Sheth and; K.G. Vakharia, Advs.,; M.D. Pandya,
Respondent Advocate S.N. Shelat,; D.U. Shah,; S.B. Majumdar,;
Cases Referred and Rai Kumar v. Prem. Parkash Kaur
Excerpt:
family - ownership - section 14 (1) of hindu succession act, 1956 and hindu women's rights to property act, 1937 - whether district judge erred in holding that widow got share on suit property as per act of 1937 - facts revealed widow remained in joint possession with her son in exercise of general right of residence in suit property - no specific part of property allocated to her in lieu of her right of residence - general right of residence of widow indefinite and imperfect - her right of residence not be equated to share in property - section 14 (1) not applicable as possession not exclusive - it cannot be said she became absolute owner of property - provisions of act of 1937 not applicable as a died before enforcement of act of 1937 - held, district judge erred in holding widow got.....a.d. desai, j.1. in all these appeals which are referred to us, the question raised for our determination is whether the right of maintenance and residence which a hindu widow whose husband has died prior to the, coming into force of hindu womens rights to property act, 1937, has, can be held the property possessed by her as a limited owner so as to attract the provisions of sub-section (1) of section 14 of the hindu succession act, 1956 (hereinafter referred to as the act). these appeals were argued together and we shall dispose of them by this common judgment.2. in order to understand the question at issue we will first state the facts of second appeals nos. 209 of 1970 and 554 on 1970. the property in dispute therein is house bearing no. 2047 situated in ward no. 3, salabatpura, surat......
Judgment:

A.D. Desai, J.

1. In all these appeals which are referred to us, the question raised for our determination is whether the right of maintenance and residence which a Hindu widow whose husband has died prior to the, coming into force of Hindu Womens Rights to Property Act, 1937, has, can be held the property possessed by her as a limited owner so as to attract the provisions of sub-section (1) of section 14 of the Hindu Succession Act, 1956 (hereinafter referred to as the Act). These appeals were argued together and we shall dispose of them by this common judgment.

2. In order to understand the question at issue we will first state the facts of Second Appeals Nos. 209 of 1970 and 554 on 1970. The property in dispute therein is house bearing No. 2047 situated in Ward No. 3, Salabatpura, Surat. This house originally belonged to one Thakordas who died' in the year 1931 leaving behind him his widow Devkorben, son Ganpatram, Ganpatram's wife Kusuirdien and two daughters, namely, Umiaben and Taraben. Devkorben resided with her son Ganpatram. Umiaben and Taraben were got married, Ganpatram died on October 1, 1962 leaving behind him his wife Kusumben and mother Devkorben, Ganpatram made a will dated September 4, 1962 and gave, the suit property to his wife subject to the conditions that she has a life, interest therein and that if she re-married the suit property was to devolve upon his mother. Under the will Devkorben was also by given only life interest. The suit property was ultimately given absolutely to the Surat Borough Municipality with the condition to rise the same for the purposes of a school building or maternity home. It was provided, in the will that during the time when the, property was in possession of his wife Devkorben had right to reside in the house and she was to be maintained by his wife. The further direction in the will was that if Devkorben and his wife Kusumben could not reside together amicably in the house. Devkorben was to be given a part in the house for residence and a specific amount for her maintenance. After the death of Ganpatram, the two ladies resided amicably in the house. Devkorben died on. December 19, 1963. She had made a will in the year 1950 and it was stated, in the will that she had no interest in the property. Umiaben daughter of Devkorben filed Civil Suit No. 246 of 1967 in the Court of the Civil Judge, Junior Division, Surat, alleging that the, dwelling house is ancestral property, that on the death of Thakordas the property bad alone to Ganpatram, that Ganpatram and Devkorben each bad one half share in the house, that on the death of Ganpatram, share of Devkorben was 3/4, that on the death of Devkorben, she and Taraben are entitled to succeed to the share of Devkorben in the suit house, that Kisumben has one half share in the house and the plaintiff and defendants Nos. I and 2 has each, one fourth share, etc. It was also prayed that the property should be divided between the parties and they be given possession of the part of the property going to their respective shares. This claim in the suit was opposed by Kusumben as well as the Municipal Corporation of Surat. The trial Court dismissed the suit of the plaintiff bolding, that Bai Devkorben had merely a right of residence in the suit house, that she bad no proprietary interest therein and that being so the plaintiff's claim to get partition of the, suit property had no basis. Umiaben filed Civil Appeal No. 227 of 1968 which was allowed by the District Judge, Surat, holding that on coming into force of the Hindu Women's Rights to Property Act, 1937 (hereinafter referred to as the Act of 1937) she had a right of residence in, the suit house, she had also a right of maintenance which was attached to the suit house and she held the share as a limited owner. He further held that the Act of 1937 was repealed by section 31 of the Hindu Succession Act of 1956 and under the provisions of section 14(1) of the Act the share which she was holding as limited owner assumed the character of ownership. He, therefore, decreed the suit of the plaintiff holding that the plaintiff and defendant had 1/6th share and Kusumben who was defendant No. I in the suit had 4/6th share in the suit house. Being aggrieved by this decree Kusumben has filed Second Appeal No. 209 of 1970 and the Municipal Corporation of the City of Surat has filed Second. Appeal No.554 of 1970.

3. The answer to the question raised before us mainly depends upon the interpretation of section 14(1) of the Act which is as follows :

'14. (1) : An 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 movable and immovable Property acquired by a female Hindu by inheritance or device, 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 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 well or any other instrument or under a decree or order of Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribed a restricted estate in such property.'

The object of the section is to extinguish the estate called 'limited estate' or widow's estate in Hindu law and to make a Hindu female who under the old law would be a limited owner, a full owner of the property with all the power of disposition and to make the estate heritable by her own heirs and not revertable to the heirs of the last male holder. The legislature desired equality of rights to all males and females. In cases where a Hindu Trial was entitled to obtain 'full ownership of a property, Hindu female could not be condmned to, hold the property only as a limited owner. It is to, be noted that it is not the object of the Act that in cases where a Hindu male can bold property only as a limited owner, a Hindu female should hold the property as a full owner. Sub-section (1) of section 14 of the Act enlarges the right of limited ownership of a Hindu female and sub-section (2) thereof, has been enacted to provide that in cases falling there under a Hindu female is, not to get a higher right than a Hindu male. The two sub-sections of section 14 have to be read together. To put in other words, the section has to be read as a whole in order to understand the legislative intent. In order that sub-section (1) of section 14 may apply the following 3 conditions must be satisfied: (1) the property must be possessed by a Hindu female; (2) the property possessed by her must have been acquired; and (3) she must have been a limited owner thereof. The expression 'Possessed by' used in section 14(1) came for interpretation before the Supreme Court in Mangal Singh v. Smt. Rattno, AIR 1937 SC 1786 and the Court pointed out that the expression used in the section is 'possessed by' and not 'in possession of'. The Court pointed out that word 'Possessed' in S. 14 has been used in broad sense and in the context means the state of owning or having in one's power. The word covered cases wherein a Hindu widow was in actual or constructive possession of the property, it also covered a case wherein a Hindu female may not be in actual or physical or constructive possession but she has a right to recover actual possession or constructive possession because her case then will be covered by the expression 'the state of owning'. What the Court held was that the word 'possessed' covered the cases wherein a Hindu female has the actual or constructive possession or hag possession in any form recognised by law. This decision of the Supreme Court was followed in Badari Pershad v. Smt. Kanso Devi, : [1970]2SCR95 . In the later decision the Court also held that the word 'acquired' used in sub-section (1) of section 14 has also to be given widest possible meaning because of the explanation attached to the sub-section. Now the word 'acquired' implies that a Hindu female got property or that the property came to her or the property fell to her with some right, title or interest by virtue of which she would claim exclusive possession. Explanation 1 to subsection (1) has to he noticed. The said explanation sets out various modes of acquisition of property by a female Hindu. It indicates that the section applies only to property to which a Hindu female has acquired some kind of title or interest however restricted nature of her interest may be. The expression 'in any officer manner whatsoever' itself suggest, that the expression has not to be construed on the basis of the principle of adjustments generis or that the words must take colour from previous expression used in the section but has to be construed widely. In short section 14 contemplates cases in which a female Hindu has acquired the property under some vestige of title, bow-ever restricted it might be. The decisions of the High Courts were not unanimous as in with cases can fall under sub-section (1) of section 14 and what cases shall fall under section 14. But this point is now settled by the Supreme Court in Badri Pershad case (supra). The Court observed that sub-section (2) of section 14 is more in the nature of a proviso or an exception to sub-section (1) and comes into operation only if acquisition in any of the methods indicated therein is made for first time, without there being any pre-existing right in the female Hindu who is in possession of property. Sub-section (2) of section 14 would apply to cases in which the instrument mentioned therein is the source or foundation of the right or title to the property. It must be noticed that the explanation appended to sub-section (1) of' section 14 assumes that the property acquired by a Hindu female in lieu of maintenance is~ a property of limited ownership. This explanation is important because of Section 4 of~ the Act provides, so far relevant, that save as, otherwise expressly provided any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect to any matter for which provision is made in this Act.

4. Having considered the provisions of section 14 we shall consider what is the right of a Hindu widow whose husband has died prior to the Act of, 1937 in the coparcener property or in the separate property of her husband. The law on the point is well settled. justice Westropp in his classical judgment in Lakshman Ramchandra v. Satyabhamabai (1871) ILR 2 Bom 494, observed as under

'This right of survivorship, on the other hand, is fully recognized by the Mitakshara as excluding the widow and other heirs in the enumeration of Yajnavalkya, when there are undivided coparceners to take the estate. The rule is a consequence of the doctrine that the right of each corner extending to the whole estate, it is fully owned as to every part not with standing the death of one of the joint tenants if the coparceners of the deceased were his sons, they, as in Bengal take in preference to all other pretenders. If they make a division of the estate, they must allot to their mother an equal share, and the same to any sonless widow of their father; but this does not of necessity invest the widows here, any more than in Bengal, with a proprietorship in the estate before its partition. The sons must from the moment of their father's death, be regarded as sole owners, yet with a liability to provide for the widows maintenance, and with a competence, on the widow's part to have the estate made answerable'. The learned judge further observed:

'............ The widow set up a claim to a moiety of the dwelling, but the Shastri's answer is : 'A son, after the death of his father, acquiring a perfect right to the property, and while sons are alive the widow has no claim to his property. She cannot, therefore, claim -any share of the house'. It seems opposite therefore, both, to the text of the Mitakshara and to the construction of the local interpreters to regard the widow's maintenance as 'a charge on the inheritance' taken by the son in the sense of a perfect right in are.'

Further observations -of the learned judge on this point are:

The widow's claim being strictly to maintenance and maintenance only, without any defined share in the estate even on partition, and the kind of maintenance ever that she can claim being dependent on the perhaps fluctuating, circumstances of the joint family, it a ears that although she may at her will ' getter claim recognized as chargeable the estate in the hands of the coparceners, reduced to certainty, and secured as a specific charge on the estate, or, as Katyayana says, be 'the allotment of a share for her. She should refrain from that course in the hope of shar in the improving circumstances of the family or through mere carelessness, she leaves to the coparceners as unlimited estate to deal with at their discretion, and must share their ill as well as their good fortune'.

This case was considered by Full Bench of Madras High Court in Ramanadan v. Rangs. minal, (1889) ILR 12 Mad 260 (FB). The learned judges of the Madras Hi b Court were considering the claim of rig t of residence of Hindu female in a dwelling house as against a purchaser thereof- and being on the aforesaid Bombay judgment, Muttusami Ayyar, J. observed as under:

'It must be observed here that, though the mother living with -and under the protection of her sons submits to their dealing with ancestral property, the submission is under Hindu law subject to this condition, viz., that the managing coparcener who deals with the property must act, either really or to the purchaser's knowledge, within the scope of his authority as the manager of a joint fund. As to the mother's right of residence in the family house, it is a right, inherent in her and an incident of her status as mother and the son cannot arbitrarily eject her from it. There is no indefiniteness as to the specific property to which it is referable and as the residence of Hindu females in family houses is a fact well known in this country, a purchaser was held not entitled to eject her, unless he showed that the sale bound that interest. The reason for the distinction between a jus in re over a general fund and a charge on a specific part of that fund did not extend to the right of residence in the family house, and it was therefore held with special reference to the mode in which the theory of a charge in the nature of an existing proprietary right was developed, that the equity of a purchaser for value did not extend to the mother's right of residence in specific property, viz., the family house unless the sale was binding on her'.

The Privy Council in Pratapmull Agarwalla v. Dhanabati Bi1bi, has also considered the right of a Hindu female governed by Mitakshara Law prior to the Act of 1937. After referring to various decisions of the Courts on the point, it was held that according to the Mitakshara law the wife, mother or grand-mother is entitled to a -share when there is a partition by division of the family estate between copaceners but she cannot be recognised as the owner of such share until the partition is actually made as she has no preexisting right in the estate except a right of maintenance. There is nothing in the Mitakshara law from which it can be inferred that upon a mere severance of the joint status of the family, any of the abovementioned females can claim a share. It will not be necessary to refer to other decided cases which repeat the said legal position Thus it is clear that in the Mitakshara law a widow was entitled to a share on partition between the sons but she was not entitled to claim her share all partition was effected. She was entitled to maintenance and residence but she got no ownership in the property of her husband until it was actually divided. Till then the right of widow was inchoate or imperfect. A complete right of maintenance includes in it the right of residence. Various Courts have also considered cases in which a last male holder leaves behind him amongst other properties a dwelling house or a dwelling house alone. So far as a dwelling house belonging to a Hindu family is concerned, the general rule of law is enunciated in Bai Devkore v. Sanmukhram, (1889) ILR 13 Born 101. The Court in that case held that under the general rule of Hindu law prevailing in the Bombay Presidency a coparcener's widow was in the absence of any special circumstances entitled to residence in the family dwelling house. The right of residence given to a widow in the dwelling house belonging to Hindu joint family is the general right of residence. In the case of Ramanadan (supra) the Full Bench of the Madras High Court was considering the extent of right of a Hindu widow as against a stranger and it is in this light that the court had made the observations cited here in before. The said decision Laid down a rule of evidence and pointed out that the purchaser shall be deemed to have knowledge of the right of residence of a Hindu widow in the family house. This decision does not lay down any other principle of law. Even in a case where a Hindu dies leaving a sole dwelling house and his heirs, namely. a widow and a son, the widow has a right of residence but her right of residence is a general right. The right of residence of a Hindu widow is curtailed (1) by restricting to cases where the debt for which the property is sold is not contracted for necessity; (2) by the rule that she cannot claim a right of residence in the whole of the premises if a portion of the house could be set apart for her and would afford reasonably sufficient accommodation, and (3) that if other reasonable accommodation even outside the family dwelling house is offered, she may be bound to accept such a substitute, at least in certain circumstances, P. Suryanarayana Rao v. Blialasubramania, ILR 43 Mad 635 : (AIR 1920 Mad 106). After death of her husband if the widow resides, with her son, she does so in exercise of her general right of residence. The net effect of these decisions is that so far as the right of residence of a Hindu widow in a dwelling house is concerned it stands on the same footing as her right of maintenance out of her husband's property. Both these general rights of a Hindu female are inchoate, indefinite and imperfect. But the question that arises is whether when a particular property is allocated to a Hindu widow or other female in lieu of her right of maintenance or right of residence, any proprietary interest is created therein. This allocation to her may be by contract or by reason of decree of the Court. The allocation of particular property in lieu of the right of maintenance or residence of a Hindu widow or other female may be established by documentary evidence or oral evidence or the circumstances of the case may lead to that conclusion. In the case of Pirdhandas Parsumal v. Hajrabai Mohamed, (1968) 9 Guj LR 24, a Division Bench of this Court considered the said question while dealing with the case of parties who were Cutchi Memons governed by Hindu Law. The facts of the case are that one Shakur Haji Suleman was the owner of the suit house. He died in the year 1947 leaving behind him his son Sitar Haji Shakur and his widow Hairabai. On partition of India, Sitar left for Pakistan and was declared as an evacuee. His properties including suit property were declared as evacuee property by the Assistant Custodian of the Evacuee Property. Hairabai thereupon preferred an appeal to the, Custodian of the Evacuee Property. The Custodian of the Evacuee Property held that Hajrabai's claim to the suit property of Shakur Haji was only that of a right of residence. At the date when Sitar migrated to Pakistan, Hairabai was residing in 2 rooms and the right of residence of Hairabai to reside in the said two rooms as the widow of Shakur Haji Suleman was recognized by the Custodian of Evacuee Property. Hajrabai continued to occupy the said rooms and on November 14, 1953, the Assistant Custodian of the Evacuee. Property issued an order fixing the rent of the premises in possession of Hairabai -at Rs. 20 per month and required her to pay Rs. 680 as and by way of arrears of rent. Hajrabai appealed against the said order and in appeal it was held that it was not proper to ask Hairabai to pay rent for the portion of the house in her possession because she was granted a right of residence in the premises. On June 8, 1955 the Central Government in exercise of its power under Section 12 (1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 issued a notification to the effect that the Central Government had decided to acquire the Evacuee Property mentioned therein which included all urban immovable properties situated within the limits of a Municipality. By virtue of this notification -the right, title and interest of Sitar in the suit house vested absolutely in the Central Government free from all encumbrances under Section 12(2) of the Displaced Persons (Compensation 'and Rehabilitation) Act, 1954. The Central Government thereafter in exercise of power sold the suit house by public auction and the same was purchased by defendants Nos. 5 and 6 of that suit. The Central Government was of the view that acquisition of the suit house by the Central Government had an effect of extinguishing the right of residence and maintenance of Bai Hairabai. Hajrabai, therefore, filed a civil suit in the Court for a declaration that she had a right of maintenance- and residence in the suit house for her lifetime and the action of the Government in issuing notification and orders was illegal. It clearly appears from the facts that Hairabai was in exclusive possession of the suit house in lieu of her right of residence and maintenance. To put in short the suit house was allotted to Hajrabai in lieu of her right of maintenance and residence and in these circumstances that the Court held that she had the proprietary interest in the suit house. The Court considered the Full Bench case of Madras High Court in (1889) ILR 12 Mad 260 (FB) (supra) and observed -as under:

'The right of residence of the widow in the family dwelling house is, there fore, enforceable against whoever is the owner of the house and it is no defence for a transferee of the house from the heirs to say that he is a bona fide purchaser of the house for value without notice of the said right. If the widow is disturbed in the exercise of her right of residence in the family house by any one, she can enforce that right against the person causing the disturbance and she can conceivably sue a trespasser in the portion of the dwelling house inner occupation for injunction or damages. The right of residence of the widow -and the family dwelling house is, therefore, a right available against the world at large and is a right in remain and must, therefore, be held to be an interest in the house. If the right of residence were enforceable only against the heirs or against purchasers for value from the heirs without notice of the right, the right would have been of the nature of just in rem which is a right in personal. In that event the right of residence would have come within the same class of legal rights in which, for example, a charge falls -and that would not have amounted to an interest in the house. But since the right of residence is enforceable against all, it is an interest in the house. As a matter of fact the right to enjoy possession of the house is One of the rights which goes to make up the bundle of ownership and when that right belongs to the widow, owner of the house is excluded, provided of course he is not a member of the family, from the enjoyment of that right and that barrier is removed only on the death of the widow or the widow giving up her right of residence.'

Thus this court has taken the view that when specific property is allotted to a Hindu widow in lieu of her right of maintenance and residence she gets proprietary interest therein. The same view is taken in Lakhmi Chand v. Smt. Sukhdevi. and B. B. Patil v. Smt, Gangabai, AIR 1972 Born 16. The consequence is that in the case where a specifies property is allotted to a Hindu widow in lieu of her right of maintenance and residence, she acquires proprietary interest therein. She cannot be evicted and thus has an exclusive right of residence during her lifetime; she can reside in the house but has no right of alienation. Thus, the widow has got a limited ownership - a concept not unknown to Hindu law This limited right of the Hindu widows becomes an absolute interest in view of section 14(1) and the explanation appended to it.

5. Reliance was sought to be placed On the decision in Bai Parsan v. Bhagwandas, (1972) 13 Guj LR 123, wherein S. H, Sheth, j. took the view that a bare right of residence created no estate in favour of a Hindu widow -and the provisions of section 14 of the Act were not attracted. According to the learned judge, the. right of residence which a Hindu widow gets is non-transferable; is a personal right and is merely right of residence which cannot be equated with the acquisition Of the property with all necessary concomitants flowing there from. In respect of the property of a coparcenery or the property belonging to the husband of the widow, the widow had only right of residence therein and nothing more The right of residence of a widow did not create a Hindu widow's right and, therefore, the provisions of section 14 of the Act were inapplicable. The attention of the Court was not drawn to the decision of the Division Bench of the Court in Pirdhandas's case, (1968) 9 Gui LR 24 (supra). In our opinion with respect, the observations made by the learned Judge are very wide. If the circumstances show that the property has been allotted to her in lieu of right of residence it can certainly be said that she acquired an interest in the property and in such a case the provisions of section 14(1) of the Act do apply.

6. There is an alternative angle from which the question may be considered. Now the Hindu Succession Act, 1956 has been enacted to amend and codify the law relating to inter state succession amongst the Hindus. Section 4 thereof provides that save as otherwise expressly provided in the Act any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made in the Act. This Act has made far-reaching changes in the structure of the Hindu Law of Succession. The traditional restricted power of a Hindu widow and other females in respect of disposition, no longer exists and the Act confers upon a Hindu female of full right of ownership. By enacting Section 4 the legislature intended to supersede the Hindu law in all matters in respect of which there is made an express provision in the Act and it is from this point of view that explanation 1 to sub-section (1) of section 14 requires to be noticed. The explanation provides that in the sub-section 'Property' includes both movable and immovable, acquired by a Hindu female by inheritance or devise or partition or in lieu of maintenance or arrears of maintenance or by gift from any person or by her own skill, exertion or by purchase or by prescription or in any other manner whatsoever meaning there by that a Hindu female gets proprietary interest in the property given to her in lieu of maintenance. To put in short the effect of the explanation is that when a property is allotted to a Hindu female in lieu of maintenance she is regarded as holding -a proprietary interest therein. So also when a female is given by an act of parties or a decree of the Court certain property for residence in lieu of her right of residence she gets proprietary interest therein, this is so because of the expression 'in any other manner whatsoever' used in the explanation. The proprietary interest which a Hindu female thus gets is undoubtedly a limited interest because if it is regarded that she gets absolute interest there was no purpose in enacting the explanation. Even in cases where a Hindu female may not be held to be a limited owner of the property as in a case of coming in possession of the property in lieu of maintenance or residence still because of the inclusive definition of the word t Property' given in the explanation, she will be a limited owner for the Purpose of sub-section (1) of section 14 of the Act. The explanation recognizes that when a property is assigned to a female Hindu in lieu of maintenance or residence she would be regarded -as holding the Property allocated to her as a limited owner. This being the specific Provision in the explanation the ordinary Hindu law must give way to this express provision and to that extent this express Provision of the Act overrides the ordinary rule of the. Hindu Law. In this view of ours we are supported by the decisions in Sheojee Tiwary v. Prema Kuer, : AIR1964Pat1 ; Bindbashni Singh v. Smt. Sheorati Kuer, AIR 1971 Pat 104: Bapusaheb Bhausaheb Patil v. Smt. Gangabai : AIR1972Bom16 ; Smt. Gaumati v. Shanker LaL AIR 1974 Rai 147 and Rai Kumar v. Prem. Parkash Kaur, .

7. Having thus considered the legal position, we will consider the facts of the case. After the death of Thakordas, Ganpatram, his wife Kusumben and Dekorben resided in the family house which was the only property left by Thakordas. There is no dispute on this point before us. Devkorben, therefore, was exercising her general right of residence in the house. The property was not allocated to her in lieu of her right of residence. She stayed in the house in exercise of her general right of residence. It is one thing to say that a widow remains in joint possession with her son in exercise of her general right of residence and quite another thing to say that the Property is allocated to her. The general right of residence of Bai Devkorben was indefinite, inchoate and imperfect. Ganpat ram could have provided only a suitable residence to her and thus could have prevented her from enjoying the entire house. Devkorben resided in the suit property with consent of her son in exercise of her general right of residence. She was not given any property in lieu of her right of residence. Her right of residence in the house cannot be equated to a share in the property; the two things being quite separate. She had a right to enjoy the entire house and no specific part of the property was allocated to her . Her possession was not exclusive, and her right of residence was general, Hence the provisions of section 14(1) cannot apply to the case, and it cannot be said that she became the absolute owner of the property. The provisions of the Act of 1937 were inapplicable as Thakordas had died before coming into force of the said Act. The learned District judge was in error in holding that Devkorben got a share in the suit property by virtue of the provisions of the Act of 1937. For the reasons aforesaid decree passed by the appellate Court for partition cannot be sustained and has to be set aside. The decree of the trial Court dismissing the suit of the plaintiff is restored.

8. Appeals allowed.


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