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Likhmi Chand and ors. Vs. Smt. Sukhdevi and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtRajasthan High Court
Decided On
Case NumberCivil Regular First Appeal No. 83 of 1962
Judge
Reported inAIR1970Raj285; 1970(3)WLN225
ActsHindu Succession Act, 1956 - Sections 14(2)
AppellantLikhmi Chand and ors.
RespondentSmt. Sukhdevi and ors.
Appellant Advocate S.C. Bhandari, Adv.
Respondent Advocate R.K. Rastogi, Adv. for Respondents Nos. 2 and 3
Cases ReferredGadam Reddayya v. Varapula Venkataraju
Excerpt:
.....these properties although they were joint family properties and she was entitled to exercise the right of maintenance and residence against them. her title in the nohra and the haveli at bidasar was only created under the written agreement ex.2. prior to the written agreement she was residing in another property with her father-in-law and she was exercising her right of residence in that property. therefore, she acquired some sort of title to the nohra and the haveli at bidasar under agreement ex. 2 and consequently the case falls under the exception enacted under sub-section (2) of section 14.;smt. sukh devi did not become the full owner of the 'nohra' and the 'haveli' in dispute on the coming into force of the hindu succession act because under the agreement ex. 2 she had only a..........must hold it subject to the charge. (see mulla's hindu law, 13th edition, para 569). a widow has a right of maintenance in all joint family properties but she has no title of any sort in those properties till a specific property or a portion thereof is allotted to her for her maintenance.11. she has a right of residence in the joint family house in which she resided with her husband during his lifetime. (see para 573, mulla's hindu law). but some other property can be allotted for her residence after she becomes a widow and then her right is transferred to that property. if specific property is allotted to the widow for her residence then she gets some sort of title to this property.12. section 14 of the hindu succession act runs as follows:--'14. (1) any property possessed by a female.....
Judgment:

Jagat Narayan, C.J.

1. This is an appeal by the plaintiffs whose suit for grant of some reliefs in respect of a 'Nohra' and a 'Haveli' situated at Bidasar was dismissed by the Senior Civil Judge, Churn.

2. The findings of fact arrived at by the trial Court are not disputed before us. The only question for determination before us is a pure question of law. The facts necessary for the decision of the question are these: One Askaran had a son Bhikamchand who died in his life-time leaving a widow Smt. Sukhdevi. Bhikamchand left a daughter Kan Kanwari who was not implead-ed as a party to this suit. Askaran was separate from his brother Dhanraj but Askaran and Bhikamchand constituted a joint Hindu family. On the death of Bhikamchand his coparcenary interest in the joint family property went to Askaran by survivorship. Smt. Sukhdevi had only a right of residence and maintenance in the joint family properties.

3. On 7-2-1928 Askaran executed a will in favour of his nephew Johrimal bequeathing all his properties on him. In view of this Smt. Sukhdevi asked for separate provision, to be made for her maintenance and residence. It may be stated here that Bhikamchand was living with Askaran in the family dwelling house at Bidasar with his wife. After his death Smt. Sukhdevi continued to live in the same family dwelling house in which her father-in-law was living.

4. Smt. Sukhdevi and Askaran appointed one Mool Chand Sethia as an arbitrator and he gave an award Ex. 2 on 9-7-1934. This award was accepted both bv Askaran and Smt. Sukhdevi and so far as the present case is concerned it constitutes an agreement between them. Under this award two alternatives were given to Smt. Sukhdevi, She could either take a 'Haveli' and a 'Nohra' described in the award at Bidasar for her residence, or a 'Haveli' with 'Bakhal' at Ladnu. The 'Haveli' offered to her at Bidasar was different from the family dwelling house in which Askaran and Smt. Sukhdevi were residing at that time. The award went on to say that if she chose the house and 'Nohra' at Bidasar she would only get Rupees 37,000/- for her maintenance. If on the other hand she chose the 'Haveli' and the 'Bakhal' at Ladnu she was to get Rupees 45,000/- for her maintenance. The sum ol Rs. 37,000/- or Rs. 45,000/- would become her absolute property but the immovable properties were given to her only for her life-time. Para 3 of the award runs as follows:--

'3. Out of the properties stated in para Nos. 1 and 2, whichever property Smt, Sukhdevi wants to take, she will reside till her lifetime in them or in it and she can use it in any way she likes. On necessity she will get its repairs done with her own money. She will have no right to sell, mortgage or transfer in any other way. After her death the properties stated in para No. 1 or 2 (whichever she might take) will revert to Askaran, his heirs and legal representatives. Her right will be only in her lifetime. She is authorised to undertake construction for necessity and convenience. She may increase or decrease apartments with her money. But she will not be authorised to destroy, deteriorate its usefulness and condition, etc.'

5. Smt. Sukhdevi chose the 'Haveli' and the 'Nohra' at Bidasar which were given to her and she went to reside in them,

6. On 24-4-1945 Askaran died. On 11-4-1960 Smt. Sukhdevi sold the western half of the 'Nohra' to Mangatmal defendant No. 2 by a registered sale deed Ex. 5 for Rupees 10,000/- and the eastern half of it to Trilok-chand defendant No. 3 by means of a registered sale deed Ex. 6 for Rs. 10,000/-. The purchasers were put into possession of the 'Nohra' as owners.

7. The present suit was filed by Johrimal and his sons and grandsons for the following reliefs:--

'(a) That it be declared that the Haveli and Nohra described in the schedule annexed to this plaint belong to the plaintiffs and that the interest of the defendant No. 1 in these properties was created only to the extent of residence therein and use thereof during her lifetime, and further that she having relinquished her right of residence and user in the Nohra by transferring its possession to defendants Nos. 2 and 3 under sale-deeds dated 11th April, 1960, she has no more interest in the Nohra even during her lifetime;

(b) that it be declared that the two sale deeds dated llth April, 1960 executed by defendant No. 1 in favour of defendants Nos. 2 and 3 in respect of western half and eastern half of the Nohra respectively are unauthorised and void and totally ineffective against the plaintiffs vested right of ownership in this Nohra;

(c) that the possession of the Nohra shown in the Schedule be given to the plaintiffs by ejecting defendants Nos. 2 and 3.

(d) That a permanent injunction may be granted against defendant No. 1 restraining her from transferring the Haveli and/or its possession to any person in any manner whatsoever.'

8. The suit was resisted by all the defendants on the ground that on the coming into force of the Hindu Succession Act Smt. Sukhdevi became the full owner of the immovable properties allotted to her under the agreement entered into between her andAskaran. The trial Court held that Smt. Sukhdevi had become the full owner of the properties given to her under the agreement referred to above by virtue of Section 14(1) of the Hindu Succession Act. He did not consider whether Sub-section (2) of Section 14 was applicable.

9. The contention on behalf of the plaintiffs-appellants before us is that as the properties were given to Smt. Sukhdevi under a written instrument which restricted her right, Sub-section (2) of Section 14 is applicable and she did not become the full owner of these properties on the coming into force of the Act. On behalf of the respondents it was contended that Sub-section (2) was not applicable. We have heard learned counsel for the parties and are of the opinion that Sub-section (2) of Section 14 is applicable to the present case and the right of Smt. Sukhdevi is a restricted right, the terms of which are contained in agreement Ex. 2.

10. A widow's right to receive maintenance is one of an indefinite character which, unless made a charge upon the property, is enforceable only like any other liability in respect of which no charge exists. But where maintenance has been made a charge upon the property, and the property is subsequently sold, the purchaser must hold it subject to the charge. (See Mulla's Hindu Law, 13th Edition, para 569). A widow has a right of maintenance in all joint family properties but she has no title of any sort in those properties till a specific property or a portion thereof is allotted to her for her maintenance.

11. She has a right of residence in the joint family house in which she resided with her husband during his lifetime. (See Para 573, Mulla's Hindu Law). But some other property can be allotted for her residence after she becomes a widow and then her right is transferred to that property. If specific property is allotted to the widow for her residence then she gets some sort of title to this property.

12. Section 14 of the Hindu Succession Act runs as follows:--

'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 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 stridhana immediately before the commencement of this Act.

(2) Nothing contained in Sub-section (1) shall apply to any property acquired by wayof 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.'

13. This section came up for interpretation before the Supreme Court in several cases which have been summarised in their decision in Mangal Singh v. Smt. Rattno, AIR 1967 SC 1786 and again in Civil Appeal No. 1937 of 1966 (SC), Badri Pershad v. Smt. Kanso Devi -- decided on 26-8-1969 (unreported). In Mangal Singh's case, AIR 1967 SC 1786 it was observed;--

'It may be noticed that the Explanation to Section 14(1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title, however restricted the nature of her interest may be. The words 'as full owner thereof and not as a limited owner' as given in the last portion of Sub-section (1) of Section 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership.'

14. With regard to Sub-section (2) of Section 14 it was held that it is an exception to Section 14(1) and will only apply where the title of the widow to the property in question was created by the instrument, etc., and will have no application to a case where the deed, etc., merely recognised a pre-existing right.

15. Now when a specific property is allotted to a widow for maintenance, a restricted title is created in her favour in that property. Before the allotment of a specific property for her maintenance she had no title of any sort to any of the joint family properties. In our opinion the words in the explanation to Section 14(1) 'in lieu of maintenance' apply to property specifically allotted to a widow for her maintenance and the words 'or in any other manner whatsoever' cover specific property allotted to her for her residence.

16. In the present case we have to see whether Smt. Sukhdevi had any title of any sort to the Nohra or the Haveli in Bidasar before they were allotted to her under the written agreement Ex. 2. We are firmly of the opinion that she bad no sort of title in these properties although they were joint family properties and she was entitled to exercise the right of maintenance and residence against them. Her title in the Nohra and the Haveli at Bidasar was only created under the written agreement Ex. 2. Prior to the written agreement she was residing in another property with her father-in-law and she was exercising her right of residence in that property. Therefore, she acquired some sort of title to the Nohra and the Haveli at Bidasar under agreement Ex. 2 and consequently the case falls under the exception enacted under Sub-section (2) of Section 14.

17. A number of cases of this Court and of other High Courts were cited before us. Out of the cases which are relevant the following support the view which we have taken:--

Thatha Gurunadham Chetti v. Smt. Thatha Navaneethamma, AIR 1967 Mad 429; Smt. Prema Devi v. Joint Director of Consolidation, Gorakhpur, AIR 1970 All 238; Vaddaboyina Sesha Reddi v. Vaddaboying Tulasamma, AIR 1969 Andh Pra 300; Mali Bewa v. Dadhi Das, AIR 1960 Orissa 81; Jaria Devi v. Shyam Sundar Agarwalla, AIR 1959 Cal 338; Damodhar Rao v. Bhima Rao, AIR 1965 Mys 290.

18. We are unable to subscribe to the view taken in Gadam Reddayya v. Varapula Venkataraju, AIR 1965 Andh Pra 66. In that case a widow by name Challamma adopted the plaintiff some time after her husband's death early in 1935. Shortly thereafter, there were some disputes between the plaintiff and Challamma which were ultimately referred to some mediators for settlement. Ultimately it ended in settlement evidenced by Ex. A-8 by and under which she was given four acres of wet land and one acre of dry land to be enjoyed by her for her life and the rest of the property to be taken by the plaintiff in recognition of his rights as an adopted son. In that case Chellarnma had no sort of title to the five acres of land which was allotted to her under settlement Ex. A. 8 before that settlement had taken place because by virtue of the adoption her adopted son had become owner of all the properties owned by her. Therefore in our opinion Section 14(2) would be attracted in the case, there being no pre-existing right in the widow to specific properties allotted to her under the settlement.

19. Cases in which the Hindu Women's Rights to Property Act, 1937 is applicable are distinguishable as there the widow inherits the share of her husband in the joint family properties on his death and she has a pre-existing share in those properties. This title is a limited one but nevertheless it is a pre-existing title, Even if it is subsequently recognised by partition, by award or by a decree of the Court, Section 14(2) is not attracted.

20. We accordingly hold that Smt. Sukhdevi did not become the full owner of the 'Nohra' and the 'Haveli' in dispute on the coming into force of the Hindu Succession Act because under the agreement Ex. 2 she had only a restricted life estate in the property. Under this agreement she is prohibited from selling, mortgaging or transferring these properties.

21. So far as relief (a) is concerned, it cannot be declared that the plaintiffs are the owners of the 'Haveli' and the 'Nohra' during the lifetime of Smt. Sukhdevi. Smt. Sukhdevi will remain the limited owner of these properties with rights restricted as indicated in agreement Ex. 2. She has no right to sell, mortgage or transfer these properties. The properties will revert after her death to the plaintiffs.

22. We are also not satisfied that by executing sale deeds in favour of defendants Nos. 2 and 3 her rights in the properties granted to her under agreement Ex. 2 are extinguished altogether.

23. So far as relief (b) is concerned, we declare that the two sale deeds dated 11th April, 1960 executed by defendant No. 1 in favour of defendants Nos. 2 and 3 in respect of the western half and the eastern half of the 'Nohra' respectively are void and are not binding on the plaintiffs.

24. With regard to relief (c) we are not satisfied that the plaintiffs are entitled to possession over the 'Nohra' so long as Smt. Sukhdevi is alive, Learned counsel for theplaintiffs has expressed an apprehension that if defendants Nos. 2 and 3 are not evicted they might claim adverse possession over the 'Nohra' under the two void sale deeds dated 11-4-1960. To allay this apprehension Shri R. K. Rastogi has acknowledged on behalf of defendants Nos. 2 and 3 that their possession will be merely permissive if this judgment is finally upheld and the plaintiffs will be entitled to possession over the 'Nohra' after the death of Smt. Sukhdevi.

25. So far as relief (d) is concerned, we grant a permanent injunction restraining Smt. Sukhdevi from selling, mortgaging or transferring the 'Haveli' or the 'Nohra' in future.

26. The appeal of the plaintiffs is allowed in part as indicated above. In the circumstances of the case we allow the parties to bear their own costs of this appeal and the suit,


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