REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NO.    4215           OF 2008 (Arising out of S.L.P. (C) No.19455 of 2006)  

G. Rama ...Appellant

Versus            

T.G. Seshagiri Rao (D) by Lrs. ...Respondents

J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned

Single Judge of the Karnataka High Court allowing the

appeal filed in terms of Section 96 read with Order XLI of

the Code of Civil Procedure, 1908 (in short the ‘C.P.C’).

3. Background facts in a nutshell are as follows:

The respondent T.G. Seshagiri Rao who after his death

has been substituted by his legal heirs, had filed a suit with

inter alia prayer to declare him as an absolute owner of the

plaint  schedule  property  and  to  direct  the  defendant

(appellant  herein)  to  deliver  vacant  possession  of  the  suit

schedule  property.  The  suit  property  is  a  residential  house

bearing No.257/1,  5th Cross,  Kempegowda Nagar,  Bangalore

measuring East West 15’ x 5’  and north south 35’.   

4. The case set out by the parties is as follows:

The  schedule  premises  was  purchased  by  Kate  T.G.

Seshagiri Rao along with his uncle one T.K. Vasudeva Murthy

under  a registered  sale  deed  dated  5.6.1963  for  a  valuable

sale  consideration  of  Rs.20,000/-  and  that  his  uncle  T.K.

Vasudeva  Murthy  relinquished  his  right,  title  and  interest

which he had over the suit schedule property in favour of the

plaintiff under a registered release deed dated 17.4.1989 and

by virtue of the release deed, the plaintiff became the absolute

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owner  of  the  suit  schedule  property.   The  defendant  is  the

daughter  in  law  of  T.K.  Vasudeva  Murthy  who  lost  her

husband in an accident and that she was permitted to reside

in the house as a licensee.

5. The  suit  was  filed  seeking  possession,  as  the  defendant

refused to vacate the premises in spite of repeated requests

and a legal notice.

6. The defendant contested the case.  According to her written

statement,  Sri  T.K.  Vasudeva  Murthy  has  no  right  to

execute the sale deed and that Vasudeva Murthy purchased

the suit schedule property along with the plaintiff out of the

joint family nucleus and that joint family had consisted of

Vasudeva  Murthy  and  his  son  Venkata  Krishna,  the

deceased husband of the defendant.  According to her, after

the death of her husband, she and her daughter Soumya

were also having equal rights along with Vasudeva Murthy.

It  is  her  further  case  that  she  has  been  residing  in  the

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schedule premises not as a licensee but in her own right as

a  daughter-in-law and that the property was given to her

by her in-laws till the marriage of her daughter Soumya and

to enjoy the same for life with an independent title.   She

also contended that she was put in possession of the suit

schedule  property  by  Vasudeva  Murthy  with  an

understanding that she would remain in possession in lieu

of maintenance and that she has acquired ownership as per

the provisions of Section 14 of the Hindu Succession Act,

1956 (in short the ‘Act’).

7. Based  on the  above  pleadings,  the  following  issues  were

framed:

1. Whether the plaintiff  proves that he is the absolute

owner of the suit schedule property as on the date of

filing of the suit?

2. Whether the plaintiff further proves that he is entitled

to the delivery of vacant possession of the schedule

property from the defendant?

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3. Whether  the  plaintiff  is  entitled  to  past  and  future

mesne profits as claimed?

4. Whether the defendant proves that she has perfected

her  title  to  the  suit  schedule  property  by  way  of

adverse possession?

5. Whether the court fee paid is insufficient?

6. Whether the defendant proves that she has got a legal

right to the extent of her share in the suit schedule

property?

7. To what order and decree?

8. The plaintiff examined himself as PW-1.  He relied upon

Exs.P1 to P9.  The defendant examined himself as DW 1.  She

did not produce  any documents before the trial court.   The

trial  Court  on appreciation  of  the  evidence  adduced  by  the

parties, held issues 1 and 2 in the negative and further held

that the plaintiff is entitled for undivided half share in the suit

schedule  property  and  entitled  for  partition  and  separate

possession of his half share.  In respect of issue No. 3, it was

held that “entitled for future mesne profits from the date of the

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suit till  the date of possession in respect of his half share”.

Issue No. 4 was answered in the negative.  Issue No. 5 was

held in the affirmative. Issue No. 6 in affirmative holding that

the defendant is entitled to claim half share.  Ultimately, the

suit of the plaintiff was decreed in part declaring that he has

become the absolute  owner of the undivided half share and

entitled for partition and separate possession of his half share.

The said judgment and decree was called in question before

the High Court.

9. The High Court found that the basic question related to

Section 14(1) of the Act.  It was noted that a suit OS No. 4949

of  1991  for  partition  was  filed  by  the  defendant,  appellant

herein. It was held that without any material, the trial court

held that defendant had become absolute owner pursuant to

Section 14(1) of the Act.

10. Learned  counsel  for  the  appellant  submitted  that  the

true scope and ambit of Section 14 of Act were lost sight of by

the High Court.

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11. It is pointed out that the property in question was given

to her in lieu of maintenance and therefore she had to

shift  from the  main portion of  the  building  to  the  out

house.  It  is  pointed  out  that  the  claim is  against  the

husband  and not  qua  recovering  lost  property.  Strong

reliance  is  placed  on  a  decision  of  this  Court  in  V.

Tulasamma and Ors. v. Sesha Reddy (d) by Lrs.(1977 (3)

SCC 99).

12. It  is  pointed  out  that after  the  death of  her  husband,

attempt of her father-in-law and the original plaintiff was to

deprive  her  of  the  property  over  which  she  had  legitimate

ownership.

13. It  is  pointed  out  that  she  was  married  to  T.V.

Venkatakrishna  on  4.7.1979  and  her  husband  died  on

11.7.1980 and the child  was born to her on 9.2.1981.  The

release deed was purportedly executed by her father-in-law in

1989.  The admitted position is that her father-in-law wanted

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to  deprive  her  of  the  legitimate  rights  and for  that  purpose

release deed was executed.

14. In  response,  learned  counsel  for  the  respondent

submitted that the factual  scenario needs to be noted.   On

5.6.1963 the original plaintiff Seshagiri and Vasudeva Murthy

who was his  uncle  and the  father-in-law of  the  defendant/

appellant purchased the property jointly.  They were partners

in a partnership firm which was dissolved on 16.8.1971. On

8.3.1981, portion of the land purchased jointly by Sheshagiri

and Vasudeva Murthy was sold to one Puttann.  There was no

challenge to it.  On 17.4.1989 Vasudeva executed the release

deed for consideration of 20,000/- in favour of Sheshagiri.  On

4.1.1990 the suit relating to the present dispute i.e. OS No.

188 of 1990 was filed.  Initially in the written statement filed,

defendant took the stand that the property in question was

joint  family  property  and claimed half  share.  Subsequently,

the written statement was amended.  Plea was taken that she

was  permitted  to  stay  in  lieu  of  maintenance  and  so  the

property was of absolute property and in terms of Section 14

(1) of the Act.  On 19.8.1991 O.S. No. 4949 of 1991 i.e. suit for

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partition  was  filed  claiming  the  partition.    There  is  no

challenge to the release deed dated 17.4.1989 in the suit for

partition.  Appellant took the stand that it was a joint family

property and, therefore, he had half share.  No specific issue

regarding the nature of the property was framed.  There was

no issue relating to Section 14(1) of the Act and there was also

no  evidence  led  in  that  regard.   Strangely  the  trial  court

treated the suit as one for partition though the suit was for

declaration.  There was no counter-claim filed by defendant-

Rama.  It is pointed out that Vasudeva Murthy was alive when

the  trial  of  the  suit  proceeded.   Before  the  High  Court  an

undertaking  was  given  to  vacant  the  premises  which  was

accepted subject to filing of an undertaking which was in fact

filed on 21.5.2004 after delivery of the judgment on 7.1.2004.

Two years after a review petition was filed on 10.8.2006 and

the same was withdrawn on 30.8.2006.

15. As  rightly  contended  by  learned  counsel  for  the

respondent there was no issue framed regarding Section 14 of

the Act.  Even no evidence was led specifically to show that in

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lieu  of  maintenance  she  was  permitted  to  possess  the

property.

16. It is relevant to note that the trial court made a reference

to Section 19 of Hindu Adoption and Maintenance Act, 1956

(in short the ‘Maintenance Act’).  Unfortunately the High Court

did  not  take  note  of  sub  section  (2)  of  Section  19  of  the

Maintenance Act.  

17. Section 14(1) of the Act reads 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 devise,  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.  

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(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.”

18. Section 19 of the Maintenance Act reads as follows:

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Maintenance of widowed daughter-in-law.- (1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law.

Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance-

from the estate of her husband or her father or mother, or

from her son or daughter, if any, or his or her estate.

(2) Any obligation under sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall case on the re- marriage of the daughter-in-law.

19. In  Sadhu  Singh v.  Gurdwara  Sahib  Narike  and  Ors.

[2006(8) SCC 75] it was inter alia observed as follows:

“5. In the case on hand, since the properties admittedly  were  the  separate  properties  of Ralla Singh, all that Isher Kaur could claim de

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hors  the  will,  is  a  right  to  maintenance  and could  possibly  proceed  against  the  property even  in  the  hands  of  a  transferee  from  her husband  who  had  notice  of  her  right  to maintenance under the Hindu Adoptions and Maintenance Act. No doubt, but for the devise, she  would  have  obtained  the  property absolutely as an heir, being a Class I heir. But, since the devise has intervened, the question that arises has to be considered in the light of this position.

xxx xxx xxx

11. On the wording of the section and in the context of these decisions, it is clear that the ratio  in  V. Tulasamma v.  V.  Shesha  Reddi (supra)  has  application  only  when  a  female Hindu is possessed of the property on the date of the Act under semblance of a right, whether it  be  a  limited  or  a  pre-existing  right  to maintenance in lieu of which she was put in possession  of  the  property.  The  Tulasamma ratio  cannot  be  applied  ignoring  the requirement of the female Hindu having to be in possession of the property either directly or constructively  as  on  the  date  of  the  Act, though she may acquire a right to it even after the Act. The same is the position in Raghubar Singh  v.  Gulab  Singh  [1998  (6)  SCC  314] wherein  the  testamentary  succession  was before  the  Act.  The  widow  had  obtained possession  under  a  Will.  A  suit  was  filed challenging  the  Will.  The  suit  was compromised.  The  compromise  sought  to restrict the right of the widow. This Court held that since the widow was in possession of the

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property on the date of the Act under the will as  of  right and since the compromise  decree created  no new or  independent  right  in  her, Section14(2) of the Act had no application and Section 14(1) governed the case,  her right to maintenance  being  a  pre-existing  right.  In Mst. Karmi v. Amru and Ors. (1972 (4) SCC 86) the owner of the property executed a Will in  respect  of  a  self-acquired  property.  The testamentary  succession  opened  in favour  of the wife in the year 1938. But it restricted her right. Thus, though she was in possession of the property on the date of the Act, this Court held that the life estate given to her under the Will cannot become an absolute estate under the provisions of the Act. This can only be on the  premise  that  the  widow  had  no  pre- existing right in the self-acquired property of her husband. In a case where a Hindu female was in possession  of  the property  as  on the date  of  the coming into  force  of  the Act,  the same being bequeathed  to  her  by her  father under a will, this Court in Bhura and Ors. v. Kashi Ram [(1994) 2 SCC 111]after finding on a construction of the will that it only conferred a restricted right in the property in her, held that Section 14(2) of the Act was attracted and it  was  not  a  case  in  which  by  virtue  of  the operation of Section 14 (1) of the Act, her right would  get  enlarged  into  an  absolute  estate. This again could only be on the basis that she had no pre-existing  right  in the  property.  In Sharad  Subramanyan  v.  Soumi  Mazumdar and  Ors. (JT  2006  (11)  SC  535)  this  Court held that since  the legatee  under  the  will  in that case, did not have a pre-existing right in the property, she would not be entitled to rely on  Section  14  (1)  of  the  Act  to  claim  an absolute estate in the property bequeathed to

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her  and  her  rights  were  controlled  by  the terms of the will and Section14 (2) of the Act. This  Court  in  the  said  decision  has  made  a survey  of  the  earlier  decisions  including  the one in  Tulasamma. Thus, it is seen that the antecedents of the property, the possession of the property as on the date of the Act and the existence  of  a  right  in  the  female  over  it, however  limited  it  may be,  are  the  essential ingredients  in  determining  whether  Sub- section  (1)  of  Section  14   of  the  Act  would come into play. What emerges according to us is  that  any  acquisition  of  possession  of property (not right) by a female Hindu after the coming into force of the Act, cannot normally attract  Section  14  (1)  of  the  Act.  It  would depend on the nature of the right acquired by her. If  she takes it as an heir under the Act, she  takes  it  absolutely.  If  while  getting possession of the property after the Act, under a  devise,  gift  or  other  transaction,  any restriction  is  placed  on  her  right,  the restriction will have play in view of Section 14 (2) of the Act.

12.  When  a  male  Hindu  dies  possessed  of property  after  the  coming  into  force  of  the Hindu  Succession  Act,  his  heirs  as  per  the schedule, take it in terms of Section 8 of the Act. The heir or heirs take it absolutely. There is no question of any limited estate descending to  the heir  or heirs.  Therefore,  when a male Hindu dies after 17.6.1956 leaving his widow as his sole heir, she gets the property as class I  heir  and there  is  no  limit  to  her  estate  or limitation on her title. In such circumstances, Section 14 (1) of the Act would not apply on succession after the Act, or it has no scope for

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operation.  Or,  in  other  words,  even  without calling in aid Section 14 (1) of the Act, she gets an absolute estate.”

20. In  Sharad  Subramanyan v.  Soumi  Mazumdar  &  Ors.

[2006(8) SCC 91] this court observed as follows:

“Mr.  Bhaskar  P.  Gupta,  learned  Senior Counsel  for  the  respondents,  rightly distinguished all these cases, as it was clearly proved therein,  that the  properties  had been given to a female Hindu, either in recognition of or in lieu of her right to maintenance under the  Shastric  Hindu Law or  under  the  Hindu Adoption  and  Maintenance  Act,  1956. Consequently, these were instances where the dispositions  of  property,  albeit  as  a  limited estate,  would  blossom into a full  interest  by reason of Sub-section (1) of Section 14 of the Act.

Learned Counsel  further contended that there  is  no  absolute  rule  that  all  properties demised to a female Hindu were necessarily in recognition  of  or  in  lieu  of  her  right  to maintenance.  It  was  possible,  even  after  the Act came into force, to create a limited estate by  reason of  a  gift  or  will.  Such a  situation would fall within the ambit of Sub-section (2) of Section 14 of the Act as long as it was not in recognition  of  or  in  lieu  of  a  right  to maintenance under the Shastric Hindu Law or under a statute. Learned Senior Counsel relied

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on Section 30 of the Act, which recognises the right  of  a  Hindu  to  dispose  of  self-acquired property  by  Will.  Mr.  Gupta  relied  on  the judgment  of  this Court in  Bhura and Ors. v. Kashi Ram (1994 (2) SCC 111) which was also a case of limited estate conferred on a female Hindu by a Will. This Court held that, upon a proper construction of the Will, the bequeathal in  favour  of  the  female  Hindu  was  clearly indicative of:

...the  testator's  intention  of  only creating  a  life  interest  in  her  and nothing  more  and  the  various expressions  used  therein  are indicative  of  and  are  reconcilable only  with  the  hypothesis  that  the testator  was  creating  an  estate  in favour of ...(the female Hindu)... only for her lifetime and not an absolute estate. [(1994)2 SCC 111]

Thus, in view of the fact that there were no indications, either in the Will or externally, to indicate that the property had been given to the female Hindu in recognition of or in lieu of her right to maintenance, it was held that the situation fall  within the ambit of Sub-section (2)  of  Section  14  of  the  Act  and  that  the restricted  life  estate  granted  to  the  female Hindu could not be enlarged into an absolute estate.  Learned  Counsel  for  the  respondents relied  strongly  on  this  judgment  and contended that there was no proposition of law that  all  dispositions  of  property  made  to  a female  Hindu were necessarily  in recognition of her right to maintenance whether under the Shastric  Hindu  Law  or  under  the  statutory law.  Unless  the  said  fact  was  independently

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established to the satisfaction of the court, the grant of the property would be subject to the restrictions contained therein, either by way of a  transfer,  gift  or  testamentary  disposition. Learned Counsel also distinguished the three cases  cited  by  the  learned  Counsel  for  the appellant  that  in  each,  the  circumstances clearly  indicated  that  the  testamentary disposition  was  in  lieu of  the  right  of maintenance  of  the  female  Hindu.  We  think that this contention is well merited and needs to be upheld.”

21. In Eramma v. Verrupanna and Ors. [1966 (2) SCR 626] it

was  observed  by  this  Court  that  mere  possession  does  not

automatically attract Section 14 of the Act.  

22. As  noted  above,  no  issue  was  framed  and  also  no

evidence was led to substantiate the plea that the appellant

was occupying the premises in lieu of maintenance.  In view of

this  factual  position  and  the  proposition  of  law  referred  to

above,  inevitable  conclusion  is  that  the  appeal  is  without

merit, deserves dismissal, which we direct.  No costs.

………………………….………..J. (Dr. ARIJIT PASAYAT)

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………………………….……….J. (LOKESHWAR SINGH PANTA)

New Delhi, July 7, 2008

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