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Raol Shri Chandrasinhji Dilawarsinhji and ors. Vs. Dhanvantkunverba Wd/O Raol Shri Madhavsinhji Hematsinhji and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtGujarat High Court
Decided On
Judge
Reported in(1967)8GLR1055
AppellantRaol Shri Chandrasinhji Dilawarsinhji and ors.
RespondentDhanvantkunverba Wd/O Raol Shri Madhavsinhji Hematsinhji and anr.
Cases ReferredIn Gadam Reddayya v. Varapula Venkatarajura and Anr.
Excerpt:
- - her possession by virtue of mutation was perfectly lawful and must be deemed to have been lawful. 1. in that view of the matter, the order passed by the learned trial judge is perfectly proper and correct......on 26-4-53. that suit was for a declaration that the plaintiff was the absolute owner of the suit property and that the defendant no. 1 had merely a right for maintenance and that she was, therefore, not entitled to have any right or interest in the property. that suit was resisted by the defendants and a consent decree was passed between the plaintiff and defendant no. 1 in the court of a civil judge (s. d.) at bhavnagar. the terms of the consent decree were as under:(1) defendant no. 1 ba shri dhankunverba has a daughter named ramakunverba. if after the death of defendant no. 1 this ramakunverba is the lawful heir, she, and if she is not the lawful heir, then the plaintiff and his heirs shall be declared heirs of the defendant.(2) defendant no. 1 shall not transfer or create any.....
Judgment:

N.G. Shelaf, J.

1. The facts giving rise to the appeal broadly stated are that in a Civil Suit No. 40 of 1953 filed by the plaintiff-appellant, a consent decree between the plaintiff and defendant No. 1 came to be passed on 26-4-53. That suit was for a declaration that the plaintiff was the absolute owner of the suit property and that the defendant No. 1 had merely a right for maintenance and that she was, therefore, not entitled to have any right or interest in the property. That suit was resisted by the defendants and a consent decree was passed between the plaintiff and defendant No. 1 in the Court of a Civil Judge (S. D.) at Bhavnagar. The terms of the consent decree were as under:

(1) Defendant No. 1 Ba Shri Dhankunverba has a daughter named Ramakunverba. If after the death of defendant No. 1 this Ramakunverba is the lawful heir, she, and if she is not the lawful heir, then the plaintiff and his heirs shall be declared heirs of the defendant.

(2) Defendant No. 1 shall not transfer or create any burden and shall not gift away and shall not transfer by outright sale the immovable properties, i. e. residential houses and Gharkbed lands, and also she shall not create any burden on the compensation amount to be paid by the Government.

2. After that decree was passed, one Shri Ratilal Manekchand Kamdar, the holder of power of attorney for defendant No. 1, had executed a sale-deed for a sum of Rs. 6000/- in respect of certain lands referred to in the prayer clause of the Darkbast, to Meghji Hari and Kunverji Hari and as it was presented for registration, the defendant No. 1 had committed breach of the term contained in Clause (2) of that decree. That led the plaintiff to file the Darkhast in the Court of the Civil Judge (S. D. ) Bhavnagar against defendant No. 1. Therein it is prayed that by reason of her having committed breach as stated above, she should be sent to civil prison under Order 21 Rule 32 of the Civil Procedure Code and to have the terms of decree enforced by attachment of her properties. This Darkhast was filed on 31-8-57. It was resisted by defendant No. 1 inter alia contending that she has become the absolute owner in respect of the suit property by reason of Section 14 of the Hindu Succession Act, 1956 and that the plaintiff has no right or interest justifying him to take any action in pursuance of any such consent decree, and that therefore no such relief can be asked for as the decree bas ceased to be operative in law.

3. The trial Court found that the defendant No. 1 had become the absolute owner of the suit property and that the decree no longer survived. It was, thus, not enforceable at law and the Darkhast was consequently dismissed. Feeling dissatisfied with that order passed on 17th March 1958 by Mr. B. M. Vadalia, Civil Judge (S.D.) Bhavnager, the plaintiff filed Civil Appeal No. 260 of 1959 in the Court of the District Judge, Bhavnagar. The learned District Judge raised a point for determination as to whether the decree can be executed against the judgment-debtor in view of the provisions contained in Section 14 of the Hindu Succession Act, 1956 and agreeing with the finding recorded by the trial Court, he held that the decree was not executable, and in the result, dismissed the appeal with costs. Aggrieved by that decision passed by 22nd February 1960 by Mr. M. K. Thakore, District Judge, Bhavnagar, the plaintiff has come in appeal before this Court.

4. The contention made out by Mr. Shah, the learned advocate for the appellant is that the consent decree passed in the suit gave defendant No. 1 a certain right in respect of the property in suit and consequently Sub-section (2) of Section 14 of the Act would come in the way of any such declaration of absolute ownership in respect thereof under Sub-section (1) of Section 14 of the Act. According to him, she had no right or interest whatever in the property before and that it was not therefore a recognition of her right or interest in the property under the terms of the decree but that by reason of that decree itself she got certain right over the property subject to certain restrictions set out in Clause (2) thereof and that, therefore, Sub-section (2) of Section 14 would operate as against the claim made by the respondent under Section 14(1) of the Act. Section 14 of the Act provides as under:

14. (1) Any 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 devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether 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 stridhana 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.

5. Now, it is clear that the property in suit was possessed by a Hindu female defendant No. 1 Ba Dhankunverba, the widow of Madhavsinhji son of Hematsinhji. That the property was with her before the suit and thus before the commencement of this Act which came in force from 17th June 1956, can hardly be disputed. Thus, by reason of Section 14(1) of the Act, she became full owner of the suit property and she did not remain a limited owner. This provision would no doubt be subject to the provisions contained in Sub-section (2) of Section 14 of the Act. If, therefore, it is shown that the property in suit was acquired under a decree passed by the Civil Court and that certain restrictions thereon were put thereby, Sub-section (1) of Section 14 would not help the respondent. In order, therefore, to avail of Sub-section (2) of the Act, it is essential to show that the property was acquired under a decree of a Civil Court and secondly that decree prescribes a restricted estate in such property. Now it is clear that the consent decree postulates certain restrictions in respect of the suit property. But the material question is whether the suit property can be said to have been acquired by defendant No. 1 under the decree or that it was merely a reiteration or recognition of her right which can be said to be as widow's estate in respect of that property.

6. Now, the term 'acquire' has not been defined under the Act. The meaning of the word 'acquire' as given in the Oxford Dictionary is 'gain by oneself and for oneself; come into possession of'. Ordinarily therefore, word 'acquire' means getting the property for oneself or coming into possession of any such property. It would pre-suppose that she had no right in the property and that it has come up to her under any such decree. Applying that test for the time-being, it is not possible to say that by reason of this decree she had gained anything or come into possession of any such property. It says nothing of the kind. If we turn to the first clause in the decree, it shows that defendant No. 1 had a daughter named Ramakunverba, and stating something which would have some effect after the death of that Dhankunverba, as to who shall become the heir on her death. It further says that if her daughter is an heir in law, she, and if not, the plaintiff and his heirs would inherit her property. It presupposes that she was the owner in respect of the property which was in her possession at that time and that the dispute would have to be later on determined if it arises on her death i. e. when the succession opens in respect of the property held by her. By Clause (2) of the consent decree, the right if any, which would arise later on to the plaintiff or his heirs on the death of Ba Dhankunverba is sought to be protected by putting certain restrictions on the enjoyment of that property by defendant No. 1 by saying that she shall not alienate any of the immovable properties and also shall not create any burden on the compensation amount to be paid by the Government. On a plain reading of the decree, it appears, therefore, clear that she retained what she had with her and that was subject to limitations contained in Clause (2) thereof. The right or interest in respect of that property on her death was kept open and that would be a matter to be considered when that arose on the death of Dhankunverba. It was, however, urged by Mr. Shah that there is nothing on record to show that she had a widow's estate in the property and that it has come to be affirmed by the terms of the consent decree. According to him, the onus of showing the same would be on defendant No. 1 in order to avail of the benefit under Section 14(1) of the Act. In my opinion, the onus of proving that she has acquired the property under the decree would be on the appellant no sooner it is shown that Section 14(1) operates in her favour. That defendant No. 1 has been able to show froro-clause (1) of the decree itself. As already pointed out hereabove, nothing of the kind is shown from the terms of the decree that she was given any such property, and having regard to the fact that the defendant nq, 1 was possessed of those properties in dispute, it can be legitimately hold that she retained the property during her life-time as an- owner, though no doubt that right was subject to the limitations contained in Clause (2) of the decree.

7. The term 'acquired' has, however, been considered in various decisions relied upon by Mr. Som pura, the learned advocate for respondent No. 1. According to him, the term 'acquire' would mean to get or gain for the first time suggesting at the same time that prior thereto any such person had no right or interest in the property. The first case referred to by him was of Smt. Sharbati Devi v. Pt. Harilal and Anr. A.I.R. 1964 Punjab 114. In that case, Section 14 of the Act came to be considered and it was held that Sub-section (2) will apply only if for the first time a female Hindu acquires the property in any of the ways mentioned in that sub-section i. e. by a gift or under a will, or under a decree. It will, therefore, depend on the facts of each case as to whether any property had already been acquired under Sub-section (1). If the answer be in the affirmative, then Sub-section (2) cannot apply. If it is in the negative, Sub-section (2) will become applicable provided the property is acquired in any of the several ways mentioned therein. In that case, after the death of D, a Hindu male, in 1938, his properties were mutated half and half between his son H and S, the widow of another pre-deceased son. In 1950 a suit was filed by H against S and it ended in a consent decree declaring H as sole heir and owner; S was given possession of suit land for her life, her rights being restricted with regard to alienations etc. S however sold the suit land. The question arose whether Sub-section (1) was applicable and S was entitled to alienate the land as a full owner or Sub-section (2) governed the case because S had acquired the land under the consent decree. On those facts it was held that S being a widow of the predeceased son she was not entitled to anything beyond maintenance. Maintenance could be paid to her either from the estate or she could be put in possession of a part of the estate in lieu of maintenance and that was done when the mutation was effected in her favour. The view that she was in possession as a trespasser and that whatever rights she obtained to get into possession of the suit property were conferred upon her by the consent decree in the year 1951, was wrong. Her possession by virtue of mutation was perfectly lawful and must be deemed to have been lawful. By the consent decree she did not get any larger interest or was not put in possession of more properties or share in the properties than what was in her possession already by virtue of the mutation. Therefore, it was not by virtue of the decree that she came to be in possession of the suit property Sub-section (2) of Section 14, therefore, would have no application, with the result that she was full owner of the suit property at the time when she. sold it. Similarly in the present case by reason of the consent decree, it is not that the defendant No. 1 came to be in possession of the property, or any larger interest or right came to be created in her. As I said above, she possessed the widow's estate in the property and she did not get anything more by way of the terms of the decree itself so as to say that she had acquired any right or interest in the property in suit.

8. Another case referred to by Mr. Sompura was that of Sasadhar Chandra Dav and Ors. v. Smt. Tara Sundari Dassi and Ors. : AIR1962Cal438 , where the term 'acquired' has been considered, and it has been held as under:

In the context of the explanation given in Sub-section (1) of Section 14 of the Hindu Succession Act, the word 'acquired' must be given the widest possible connotation. The explanation being restricted to Sub-section (1), recourse to it was not intended by the legislature to be taken for construing Sub-section (2) of Section 14 The language used in Sub-section (2) indicates that the word 'acquired' will have a restricted meaning. It was not intended to have a meaning wider than its ordinary meaning. A property is said to be acquired when prior to the acquisition the person acquiring it had no interest in the property.

If prior to the date of the decree the Hindu female had title and all that the decree does is to declare that title in the said properties, she cannot be said to have acquired the property under the decree.

9. In the case of Lalchand Bhur and Anr. v. Smt. Sushila Sundari Dassi and Ors. : AIR1962Cal623 , in a suit by reversioners against a widow before the passing of the Hindu Succession Act, 1956, a consent decree was passed, the terms of which embodied an undertaking by the widow not to alienate or encumber or otherwise deal with the estate so as to prejudically affect the reversionary interest. In a suit by widow for declaration the passing of the Act, it was held that after the passing of the Hindu Succession Act there was no longer in existence a limited Hindu widow's estate in respect of the properties nor any reversionary interest in respect thereof. The widow became the full owner of those properties. There could be no reversion and no reversionary interest in respect of the properties held by her as full owner and the terms of settlement could no longer operate. In the present case also no such claim by way of reversionary interest was in existence and that the decree had become inoperative by the provisions contained in the Act. In another case of Raghunath Sahu and Anr. v. Hhimsen Naik and Anr. : AIR1965Ori59 , it has been observed that the word 'acquired' will have a restricted meaning. The estate is said to be acquired when prior to the acquisition the person acquiring had no interest in the property.

10. In Gadam Reddayya v. Varapula Venkatarajura and Anr. : AIR1965AP66 , a similar view has been taken with regard to the term 'acquired' used in Section 14 of the Act. A document evidencing a family settlement wherein the differences between the parties were resolved, it cannot be said that the new right was conferred upon the widow under that document. The restriction referred to above merely set out the legal effect on her estate as maintenance holder. Acquisition implies that a new right in respect of any property is conferred apart from widow's estate. No such right appears to have been created under the decree in question and at any rate there is nothing to show that she had lesser interest than what the decree indicated and that some larger interest was created under the decree in question. Ordinarily no doubt, as pointed out by Mr. Shah that would be so where the decree would crystalize the rights of the parties. But in the present case, the decree does not declare or give any such right in the properties and it merely declares by clear implication that she retains the property that she had subject to certain limitations. The right or interest of the plaintiff has been kept open to be considered as and when it arises viz. after the death of defendant No. 1. In that view of the matter, the order passed by the learned trial Judge is perfectly proper and correct. The decree ceased to have any operation by reason of Section 14(1) of the Act already referred to hereabove. It was, therefore, not executable and the Darkhast is liable to be dismissed. 10. The appeal is dismissed with costs.


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