C.M. Lodha, J.
1. The plaintiff-respondent Shanker Lal filed the suit out of which this appeal arises against Ramkaran Lal (who died during the Dendeney of this litigation and is represented by his legal representatives Smt. Gaumati and others -- appellants) for declaring that the will Exhibit 3, dated 3-2-1961 made by Smt. Kalawati is ineffective against the plaintiff and further that a decree for possession of the ground-floor of the house and other movable property, ornaments etc. bequeathed by Smt. Kalawati to Ramkaran Lal be granted in his favour. The trial Court decreed the suit for possession of the ground floor of thehouse and its judgment and decree were affirmed by the District Judge, Bharatpur, and consequently the legal representatives of Ramkaran Lal have filed this appeal.
2. A few relevant facts may now he stated. One Jagan Nath had three sons Chaturbhui, Ramkaranlal (defendant) and Shankerlal (plaintiff). Chaturbhui died in St. 1967. i. e. in the year 1910-11 A. D. leaving behind his widow Smt. Kalawati but no issue. Ramkaranlai went in adoption to one Ramchander some time in Section 1973 i. e. 1916-17 A. D. As already stated above, on 3-2-1961 Smt. Kalawati executed a will of the property in question in favour of Ramkaran Lal and died about a month later. On the death of Smt. Kalawati, Ramkaran Lal took possession of the property willed to him by Smt. Kalawati and thereupon Shanker Lal filed the present suit on the ground that Ramkaran Lal had gone in adoption to another family, and was not entitled to get any share in the family of his birth and further that Smt. Kalawati had no right to will away the property in question. The suit was resisted by Ramkaran Lal mainly on the ground that Smt. Kalawati became absolute owner of the property by virtue of Section 14(1) of the Hindu Succession Act No. 31 of 1956 which came into force on 17-6-1956. The Courts below held that since Smt. Kalawati did not acquire even limited ownership to the property in question an the date of the commencement of the Hindu Succession Act (hereinafter to be referred to as 'the Act') she could not become full owner thereof and consequently the will executed by her in respect of the property in question was not valid.
3. The only point for decision in this case is as to whether on the coming into force of the Hindu Succession Act Smt. Kalawati became an absolute owner of the property in question. If she did, the suit is liable to be dismissed and if she did not, it has been rightly decreed by the courts below.
4. Learned counsel for the appellants has urged that even the plaintiff has admitted in paras Nos. 2 and 6 of the plaint that on the death of Chaturbhui, husband of Smt. Kalawati the latter sot a right of residence and maintenance out of the property of Jagannath Prasad, father of her deceased husband. He has further invited my attention to the statement of the plaintiff Shanker Lal P. W. 1. Shankerlal has stated that Smt. Kalawati used to reside in the portion of the house which had been willed by her D. W. 1 Ram Karan Lal has also stated that the disputed premises which had been willed away to him had been continuously in possession of Smt. Kalawati for a period of about 50 years from the date of the death of her husband to the date of her own death. On the basis of the aforesaid averments in the pleadings and the evidence, the learned counsel has argued that the property in question was possessed by Smt. Kalawati on the date of coming into force of the Act and that the same had been acquired by her in lieu of maintenance. In support of his contention he has placed reliance on Rani Bai v. Yadunandan, AIR 1969 SC 1118 and B.B. Patil v. Gangabai, AIR 1972 Bom 16. On the other hand, learned counsel for the respondent has urged that the property in question was never acquired by Smt. Kalawati and she had not a vestige of title to it. The house in question was given to her only for residence and a person who had only a right of residence in the property cannot be said to have acquired the property. In other words his contention is that Section 14 of the Act has no application to the present case. In support of his contention learned, counsel has relied upon Rao Raia Tejsingh v. Hastimal. 1972 Rai LW 133 = (AIR 1972 Rai 191): Mt. Mohari v. Mt. Chukli, AIR 1960 Rai 82. He has futher argued that the plea of acquisition of the property in question by Smt. Kalawati is negatived by the judgment Ex. 2.
5. Before I embark upon the consideration of the points canvassed before me it may be relevant to reproduce Section 14 of the Hindu Succession Act:--
'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 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 stridhana immediately before the commencement of this Act.
'(2) Nothing contained in Sub-section (l) 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.'
6. It is beyond dispute that the house in question was in actual possession of Smt. Kalawati on the date of. coming into force of the Act. So also there is no controversv between the par-ties that Smt. Kalawati was entitled to get maintenance out of the joint family property. The bone of contention, however, is whether in the facts and circumstances of the case it can be said that the property was acquired by Smt. Kalawati in lieu of maintenance or in any other manner. Of course there is no clear evidence on the record that the property was given to Smt. Kalawati in lieu of maintenance.
7. In AIR 1969 SC 1118 the facts were that one Jangi Jogi had a son named Laldas who pre-deceased the former leaving behind his widow Rani Bai. After the death of Laldas, Jangi Jogi married Mst. Jugli and died two years after their marriage. After Jangi Jogi's death, Mst. Jugli gifted the property in dispute to Yadunandan who obtained possession of the same in the course of criminal Proceedings under Section 145, Criminal P.C. Thereupon Mst. Jugli and Smt. Rani Bai jointly instituted a suit for declaration in respect of their right, and for possession of the property. Jugli Bai filed an application under Order 23, Rule 3, Civil P. C. and the Question arose before their Lordships as to whether Rani Bai was entitled to get possession of the property from Yadunandan. It was observed by their Lordships that Rani Bai was entitled to receive maintenance out of the share of her father-in-law and that although her claim for maintenance was not a charge upon the estate until it had been fixed and specifically charged thereupon, her right was not liable to be defeated except by transfer to a bona fide purchaser for value without notice. They further observed that the Courts in India have taken the view that where a widow is in possession of a specific property for the purpose of her maintenance, a purchaser buying with notice of her claim is not entitled to possession of that property without first securing proper maintenance for her: (vide Rachawa v. Shivayog-appa, (1894) ILR 18 Bom 679). It was further observed.
'it is clear from the provisions of the Explanation appearing in Section 14 of the Hindu Succession Act that a situation was contemplated where a female Hindu could be in possession of joint family properties in lieu of maintenance, It may be mentioned that after the enforcement of the Hindu Adoptions and Maintenance Act, 1956 the rights of widowed daughter-in-law to maintenance are governed by Section 19 of that Act which, however, could not be applicable. In the present case, it is difficult to understand how the appellant could be deprived of the possession of properties by a trespasser. Moreover she was pre sumably in possession of these properties in lieu of her right of maintenance and could not be deprived of them even by Jugli Bai without first securing proper maintenance for her out of the aforesaid properties.'
(Note: The underlining is mine)
8. It is true that their Lordships held Yadunandan to be a trespasser and granted a decree for possession in favour of Rani Bai but in this connection they observed that 'the appellant (Rani Bai) was further entitled to remain in possession if she could establish that she had entered into possession by virtue of her claim or right to maintenance until the person laying a claim to the estate of Jangi Jogi made some proper arrangement for the payment of maintenance to her'. However, their Lordships did not express any final opinion as the suit had been remanded for a fresh decision on questions of fact and law.
9. In AIR 1'972 Bom 16 the suit properties had been allotted to the widow Heera Bai under an award in lieu of maintenance for life with a restricted power of alienation. In view - of the award it was held that on the date of commencement of the Act of 1956 Hira-bai was a limited owner within the contemplation of Sub-section (1) of Section 14 of the Act and was entitled to become the full owner on that date. A contention was raised on behalf of the opposite party that the case fell within the exception embodied in Sub-section (2) of Section 14 of the Act and the award created a restricted estate. This contention was however, overruled and it was observed that the Explanation to Sub-section (1) is wide enough to include the property acquired under an award or a decree, and that Sub-section (1) will not cease to have effect. It was further held that the award was not the source of interest created but was merely declaratory of the right to the property antecedently enjoyed by the Hindu female.
10. In AIR 1960 Rai 82 it was held that 'the essential pre-conditions for attracting the benefit of Section 14 are that the female Hindu must have in the first place 'acquired property' albeit before the commencement of the Act as contra-distinguished, for example, from a mere right of maintenance or residence and, secondly, that she must have been in possession of 11 at the commencement of the Act, and the section can have no application where she cannot be said to be in such possession.' In the present case Smt. Kalawati was admittedly in possession of the property in dispute on the date of the commencement of the Act, and, therefore, the case is clearly distinguishable.
11. In 1972 Raj LW 133 = (AIR 1972 Rai 191) a right of residence had been granted to the younger brother by the mortgagor against whom a decree for sale of the mortgaged property was sought to be executed. The younger brother's wife raised an objection that she had a right of residence in the property which had ripened into absolute ownership on coming into force of the Hindu Succession Act, There was no question of maintenance involved in the case and the right of residence was claimed by the widow not in her own right but as an heir of her deceased husband who too had a limited right, namely, a right of residence only. This authority has also no application to the facts and circumstances of the present case.
12. As already stated above, it is not disputed that Smt. Kalawati was in actual possession of the property in dispute and was entitled to maintenance out of the joint family property. There is nothing on the record to show that any separate arrangement was made for her maintenance nor it is the plaintiff's case that she had any other source of maintenance. It is further crystal clear that she resided in the property in dispute and had exclusive control over it for a period of 50 years since the death of her husband. Under these circumstances even if there is no direct evidence that the property in dispute was given to her for residence and in lieu of maintenance, it will not be unreasonable to presume that she had acquired this property in lieu of maintenance. The words used in the Explanation to Section 14(l) are wide enough so as to include acquisition in any other manner whatsoever. In the facts and circumstances of this case I am of opinion that Smt. Kalawati was in possession of theproperty in dispute and had acquired the same in lieu of maintenance and consequently she became full owner thereof on coming into force of the Act.
13. In view of the foregoing discussion, I allow this appeal, set aside the judgments and decrees of the Courts below and hereby dismiss the plaintiff's suit The parties are left to bear their own costs throughout.
14. Learned counsel for the respondent prays for leave to appeal under Section 18 of the Rajasthan High Court Ordinance, 1949. Since the question involved is of considerable importance and likely to arise frequently and there is no direct authority on all fours. I consider it a fit case for grant of leave. Leave to appeal to Division Bench is granted.