G.M. Lodha, J.
1. This is a defendant's second appeal in a suit which was dismissed by the trial Court, but decreed by the first appellate Court.
2. Sualal died in 1962 leaving behind two sons Gujarmal and Jiwanlal. Gujarmal died in Samvat-Year 1974 leaving behind widow Mst. Narangi.
3. Mst. Narangi has sold this property to Mool Kanwar for a consideration of Rs. 600/-.
4. This sale was challenged by Jiwalal and his son Inderchand on the ground that Narangi had no right of ownership in the property and she could not have sold the property to Mool Kanwar. So far as other pleas are concerned regarding the plaintiff's having a will from deceased Gujarmal and challenge to consideration or allegation that the sale deed was executed when Narangi was paralytic and was not having proper senses, both the Courts have given concurrent finding against the plaintiffs, and, therefore, it is not necessary to deal with those points as none of them has been challenged before this Court.
5. The sole point on which the plaintiffs' suit has been decreed is that Narangi widow of Gujarmal could not take advantage of Section 14 of the Hindu Succession Act, because it has not been proved that she got this property in maintenance. It was held that Hindu Women's Rights to Property Act was not in force in Jaipur State. The first appellate Court was of the view that it has not been alleged or proved that Narangi was holding the property in lieu of maintenance, and, therefore, she had any right to alienate the property.
6. I have heard the learned counsel for the parties, and I am of the opinion that this finding of the lower Court cannot be sustained. It has been held in Vaddeboyina Tulasamma v. Vaddeboyina Sesha Reddi AIR 1977 SC 1944, that a Hindu female has got a right of maintenance from her husband and this right was in existence under the basic tenets and Shastric Hindu Law.
7. Hindu concept of marriage is not contractual, but it is treated as a sacrament, a religious ceremony which results in a sacred and a holy union of man and woman by virtue of which the wife is completely transplanted in the household of her husband and takes a new birth as a partner of her husband becoming a part and parcel of the body of the husband. A well known Hindi Maxim 'Ardhangni Nar Ki Nari Hai' is based on the concept that the wife shares not only life and love with the husband, but sorrows and troubles and tribulations and becomes an integral part of her husband's life and activities.
8. Their Lordships of the Supreme Court in para 14 have referred to Digest of Hindu Law (Vol. II) by Colebrooke, where on page 158 the wife is described as half of the body of the husband.
9. In paras 14, 15, 16 and 17, the Hon'ble Supreme Court has discussed the Hindu Text of Mahabharat and intentions of Manu. Para 16 reads as under:--
'Colebrooke in his 'Digest of Hindu Law', Vol. II, quotes the Mahabharat at p. 121 thus:
Where females are honoured, there the deities are pleased; but where they are unhonoured, there all religious acts become fruitless.
This clearly illustrates the high position which is bestowed on Hindu women by the Shastric Law. Again Colebrooke in his book Vol. II at p. 123, while describing the circumstances under which the maintenance is to be given to the wife, quotes Manu thus.
MANU:-- Should a man have business abroad, let him assure a fit maintenance to his wife, and then reside for a time in a foreign country; since a wife, even though virtuous, may be tempted to act amiss, if she be distressed by want of subsistence.
While her husband, having setteled her maintenance, resides abroad, let her continue firm in religious austerities; but if he leaves no support, let her subsist by spinning and other blameless arts.
This extract clearly shows that there is a legal obligation on the part of the hub-band to make arrangements for his wife's due maintenance even if he goes abroad for business purposes, Colebrooke again quotes Yajnyawalkya at p. 243 of his book Vol. II thus:
When the father makes an equal partition among his sons, his wives must have equal shares with them, if they have received no wealth either from their lord or from his father.
If he makes an equal partition among his sons by his own choice, he must give equal shares to such of his wives also as have no male issue.
This shows that when a partition is effected, the Hindu Law enjoins that the wife must get an equal share with his sons. Thus reinforcing the important character of the right of maintenance which a Hindu wife or widow possesses under the Hindu Law.'
This Court in Mst. Gaumati v. Shanker Lal AIR 1974 Rai 147 at p. 150 observed as under:--
'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(1) 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 the property 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.'
10. In the instant case, it has been held that possession was given to Narangi Bai and she used to reside in the disputed property. It has also been held that the property was ancestral property. Narangi was a widow and she was entitled to maintenance under the Hindu Law irrespective of the application of the Hindu Women's Rights to Property Act, 1937.
11. I am, therefore, in agreement with the view expressed in Para 12 in Gaumatis case (AIR 1974 Rai 147) (supra) that even though there is no direct evidence that the property in dispute was given to her in lieu of maintenance, it will not be unreasonable to presume that she has acquired the property in lieu of maintenance. In the present case, the lower Court has held that the property was given for residence. In this view of the mailer, as held in Gaumati's case (supra), Section 14(1) of Hindu Succession Act would apply.
12. Reliance has been placed in Gaumati's case (AIR 1974 Rai 147) (supra) on the judgment reported in Smt. Rani Bai v. Yadunandan Ram AIR 1969 SC 1118. I am', therefore, convinced that Narangi Bai who was in possession of this property, which was given to her for residence, was also holding it for maintainance, and Section 14 applies in her case. She was, therefore, entitled to alienate the property to the present appellant and the alienation was valid. Mr. Bhandari pointed out that before the passing of slay order in this case, the possession was taken by the plaintiff-respondents, and they have constructed a house over it in which they are living for the last 10 years, and it would be too harsh to dispossess them now after a period of more than 10 years. From the record, I find that the stay application was dismissed by this Court in 1970, and an order was passed that if the appellant is successful in the executing court in her objections, then she may apply for stay again in this Court. Admittedly, no such application has been made, although more than a decade has passed ever since then.
13. Confronted with the abovesituation, where the respondenthas made constructions over this property after taking possession, I inquired from the learned counsel for the parties, if it was possible to enter into a compromise to take price of the land, so that the defendant would be able to get the fruits of the litigation, and at the same time the plaintiffs who took possession and whoare in possession since last ten years andhave made constructions would not beput to any serious hardship. Though, on principle, both the parties are not contesting the suggestion of the Court, but in the absence of instructions from their clients the learned counsel . submitted that it would not be possible for them to enter into a compromise, and the Court may pass an appropriate order. Mr. P.N. Agrawal submitted that the better course would be to leave it to the executing court to determine the amount, which should be paid as expenses of improvements to the plaintiffs at the time of execution or restitution as the case may be. This suggestion of Mr. Agrawal appears to be reasonable and is accepted.
14. The result is that this appeal is accepted, the judgment of the first appellate Court is reversed and that of the trial Court is restored, but with the modification that the possession of the property in dispute would be handed over back to the appellant-defendant Mool Kanwar only after the executing Court has determined the amount to be paid of the improvement in the form of constructions etc. made by the plaintiff-respondenls Jiwalal and Inderchand, and after that determination that amount is paid to them. In the circumstances of the case, the parties would bear their own costs in all the three courts.