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CASE NO.: Appeal (civil)  5321 of 2007

PETITIONER: Santhosh and others

RESPONDENT: Saraswathibai and another

DATE OF JUDGMENT: 20/11/2007

BENCH: S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T ARISING OUT OF SLP (C) NO. 5437 OF 2006

S.B. SINHA, J.

1.      Leave granted

2.      Application of Section 14(1) of the Hindu Succession Act, 1956  (hereinafter referred to as \021the Act\022) calls for consideration in this  appeal which arises out of a judgment and order dated 15th November,  2005 passed by a learned Single Judge of the Karnataka High Court at  Bangalore in Regular Second Appeal No. 276 of 2003.   

3       The short factual matrix involved may be noticed at the  threshold.

4.      For the said purpose, we may notice the genealogy of the  family.                    Shivaraya (Dead)                    S/o. Hanumanthappa Patil                                         Trimukhrao   (Died in 1957)                     Manikappa (Dead) = 1st wife Sundari Bai          (Died on 16.10.1992)                                                                                                                                 =2nd wife Kashibai                                     (D-4)      ______________________       |                                 |                  Saraswathi              Sharadabai                  (P-1)                       (P-2)                                             _____________________________________________________                                                                                                                     |                          |                       |                    |                        |   Shantabai          Mallikarjun        Jagadevi          Mallamma   Neelamma     Neelamma                             (Died in 1987)                        = wife K Kamalabai                                  (D-3)                                     |        ____________________________                   |                                     |             Santosh                         Satish

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              (D-1)                            (D-2)

5.      Original Suit bearing No. 34 of 1964 was filed by Sundrabai,  first wife of Trimukhrao (respondent No.1 herein) against Mallikarjun  (since deceased) and Kashibai (defendant No.4 therein).  A consent  decree was passed in that suit, the relevant clauses whereof were as  under :-

\0231.  The plaintiff and the defendant no.2 are the  wives of deceased Trimbakrao.  The defendant  No.1 is the son of Trimbakrao.  The plaintiff  Sundrabai and Mallikarjun and his mother  Kashibai resides separately.

2.      That as per compromise the land Sy. No.73  Kh. No.145 to the extent of measuring 6 acres 33  gunatas. R.A. Rs.9.00 situated at Khandala, on  north side bounded in the east the land of  Shivalingappa Biradar in the west public way.  In  the north the land of Shankarappa in the south  remain land Sy. No.73, was given to the plaintiff  for her maintenance.  She is in possession of that  portion of land since 5/6 years. The defendants  will not interfere and obstruct in the peaceful  possession of that portion of land which was given  to the plaintiff for her maintenance, till her death.   The defendants No.1 and 2 will remain in  possession of remaining half portion of land  Sy.No.73 on south side as owner.  The plaintiff  will not alienate (through gift or sale) land which  was given for her maintenance.

3.      That after the death of the plaintiff the land  given to her will be reversed to the defendant No.1  and 2.  The parties will bear their costs of the  cost\024.\024

6.      Mallikarjun died in the year 1987.  Sundrabai died in 1992.   Respondents herein who are heirs and legal representatives of  Sundrabai filed Original Suit No.210 of 1993 claiming the said land  admeasuring 6 Acres 33 guntas from the Northern side of Survey No.  73 on the ground that she had become owner thereof in terms of  Section 14(1) of the Act.  Appellants who were arrayed in the suit as  defendants inter alia contended that Sundrabai was not the absolute  owner of the said property having been allotted to her by reason of the  consent decree.  It was furthermore contended that the land in suit was  allotted to her by way of maintenance which she could keep in  possession only during her life time and, therefore, Section 14(2) of  the Act and not Section 14(1) of the Act would apply.  

7.      The said suit was dismissed on the premise that the plaintiffs  were not the owners and were not in possession of the suit property.     

8.      On an appeal having been preferred thereagainst, the Principal  District Judge Bidar by his judgment and order dated 2nd January,  2003 allowed the said appeal opining that Section 14(1) of the Act  being applicable, the plaintiffs became the owners of the suit property.   By reason of the impugned judgment the second appeal preferred by  the appellants has been dismissed.   

9.      Mr. Solashe, learned counsel appearing on behalf of the  appellants, in support of this appeal inter alia would submit that the

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High Court committed a serious error of law in so far as it failed to  take into consideration that Sundrabai on partition could not have  been allotted 6 Acres 33 guntas of land and in that view of the matter,  although the land which could fall in her share would be covered by  Section 14(1) of the Act, but according to the learned counsel the  share of Sundrabai in the joint family being 7/24 in the total land of  joint family being 12 acres 33 guntas, share of Sundrabai would come  only to 3 acres 29 guntas.  It was submitted that the word \023possessed\024  contained in Section 14 (1) of the Act must be construed to mean  ownership as has been held by this Court in [1959] Supp. 1 SCR 968 :  Gummalapura Taggina Matada Kotturuswami  vs.  Setra Veeravva  and others.   

10.     Mr. Patil, learned counsel appearing on behalf of the  respondents, on the other hand, would support the judgment.  It was  moreover contended that there is nothing on record to show that the  total agricultural lands belonging to the joint family was only to the  extent of 12 acres 33 guntas.  In fact, Mr. Patil would urge that there  were other properties of the joint family besides, the suit land.

11.     Sub-sections (1) and (2) of Section 14 of the Act reads as under:-

\02314.   Property of a female Hindu to be her  absolute property \026 (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 \026 In this sub-section, \023property\024  includes both moveable 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  the 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.\024

12.     In Gummalapura Taggina Matada (supra) on which reliance  has been placed by the learned counsel, this Court held that Section  14(1) of the Act has wide application.  It not only takes within its  sweep a land which was not only in possession of the female Hindu  but also covers the land over which she has a right to possess stating:-  \023Of course, possession referred to in section 14 need not  be actual physical possession or personal occupation of  the property by the Hindu female but may be possession  in law. The possession of a licensee, lessee or a  mortgagee from the female owner or the possession of a  guardian or a trustee or an agent of the female owner  would be her possession for the purpose of section 14.  The word "possessed" is used in section 14 in a broad  sense and in the context possession means the state of  owning or having in one’s hands or power. It includes  possession by receipt of rents and profits. The learned

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Judges expressed the view that even if a trespasser were  in possession of the land belonging to a female owner, it  might conceivably be regarded as being in possession of  the female owner, provided the trespasser had not  perfected his title. We do not think that it is necessary in  the present case to go to the extent to which the learned  Judges went. It is sufficient to say that "possessed" in  section 14 is used in a broad sense and in the context  means the state of owning or having in one’s hand or  power. In the case of Gostha Behari v. Haridas Samanta,  P. N. Mookherjee, J., expressed his opinion as to the  meaning of the words "any property possessed by a  female Hindu" in the following words :-  

"The opening words in "property possessed by a  female Hindu" obviously mean that to come within  the purview of the section the property must be in  possession of the female concerned at the date of  the commencement of the Act. They clearly  contemplate the female’s possession when the Act  came into force. That possession might have been  either actual or constructive or in any form  recognised by law, but unless the female Hindu,  whose limited estate in the disputed property is  claimed to have been transformed into absolute  estate under this particular section, was at least in  such possession, taking the word "possession" in  its widest connotation, when the Act came into  force, the section would not apply."  

(See also (2005) 5 SCC 390 : Shakuntla Devi  vs.  Kamla and others  and  2006 (13) SCALE 408 : Chandrika Singh (D) by L.Rs  vs.   Sarjug Singh and another.

13.     Sundrabai\022s possession in respect of 6 acres 33 guntas of land  even prior to the institution of the suit has been accepted in the said  consent decree.  Appellants herein undertook not to interfere in her  peaceful possession thereover.  Admittedly after the death of  Trmukhrao who died after coming into force of the Act, Sundrabai  became one of the co-owners of the property being one of his wives  who had half share in the joint properties.  Succession thereof was  governed by Sections 6, 8 and 12 of the Act.   It is, therefore, not a  case where she had no right to possess the said land.  If she had a right  to possess the said land as a co-owner, the question of divesting her of  the said right by invoking sub-section (2) of Section 14 of the Act  would not arise.  

14.     The stipulations made in the consent decree dated 20th July,  1964 must thus be construed having regard to the well settled legal  position.  It is now a well settled principle of law that in considering a  deed, the legal position obtaining in this behalf should be kept in  mind.  

15.     Legal position in regard to the right of a female Hindu was laid  down by this Court in (1977) 3 SCC 99 : V. Tulasamma and others    vs.  Sesha Reddy (dead) by L.Rs., wherein  the legal consequences  were summarized as under :-   \023(1) The Hindu female\022s right to maintenance is  not an empty formality or an illusory claim being  conceded as a matter of grace and generosity, but  is a tangible right against property which flows  from the spiritual relationship between the husband  and the wife and is recognised and enjoined by  pure Shastric Hindu law and has been strongly

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stressed even by the earlier Hindu jurists starting  from Yajnavalkya to Manu. Such a right may not  be a right to property but it is a right against  property and the h usband has a personal  obligation to maintain his wife and if he or the  family has property, the female has the legal right  to be maintained therefrom. If a charge is created  for the maintenance of a female, the said right  becomes a legally enforceable one. At any rate,  even without a charge the claim for maintenance is  doubtless a pre-existing right so that any transfer  declaring or recognising such a right does not  confer any new title but merely endorses or  confirms the pre-existing rights. (2) Section 14(1) and the Explanation thereto have  been couched in the widest possible terms and  must be liberally construed in favour of the  females so as to advance the object of the 1956 Act  and promote the socio-economic ends sought to be  achieved by this long needed legislation. (3) Sub-section (2) of Section 14 is in the nature of  a proviso and has a field of its own without  interfering with the operation of Section 14(1)  materially. The proviso should not be construed in  a manner so as to destroy the effect of the main  provision or the protection granted by Section  14(1) or in a way so as to become totally  inconsistent with the main provision.   (4) Sub-section (2) of Section 14 applies to  instruments, decrees, awards, gifts, etc. which  create independent and new titles in favour of the  females for the first time and has no application  where the instrument concerned merely seeks to  confirm, endorse, declare or recognise pre-existing  rights. In such cases a restricted estate in favour of  a female is legally permissible and Section 14(1)  will not operate in this sphere. Where, however, an  instrument merely declares or recognises a pre- existing right, such as a claim to maintenance or  partition or share to which the female is entitled,  the sub-section has absolutely no application and  the female\022s limited interest would automatically  be enlarged into an absolute one by force of  Section 14(1) and the restrictions placed, if any,  under the document would have to be ignored.  Thus where a property is allotted or transferred to  a female in lieu of maintenance or a share at  partition, the instrument is taken out of the ambit  of sub-section (2) and would be governed by  Section 14(1) despite any restrictions p laced on  the powers of the transferee. (5) The use of express terms like \021property  acquired by a female Hindu at a partition\022, \021or in  lieu of maintenance\022, \021or arrears of maintenance\022,  etc. in the Explanation to Section 14(1) clearly  makes sub-section (2) inapplicable to these  categories which have been expressly excepted  from the operation of sub-section (2). (6) The words \021possessed by\022 used by the  Legislature in Section 14(1) are of the widest  possible amplitude and include the state of owning  a property even though the owner is not in actual  or physical possession of the same. Thus, where a  widow gets a share in the property under a  preliminary decree before or at the time when the

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1956 Act had been passed but had not been given  actual possession under a final decree, the property  would be deemed to be possessed by her and by  force of Section 14(1) she would get absolute  interest in the property. It is equally well settled  that the possession of the widow, however, must  be under some vestige of a claim, right or title,  because the section does not contemplate the  possession of any rank trespasser without any right  or title. (7) That the words \021restricted estate\022 used in  Section 14(2) are wider than limited interest as  indicated in Section 14(1) and they include not  only limited interest, but also any other kind of  limitation that may be placed on the transferee.\024  

16.     In Nazar Singh and others   vs.  Jagjit Kaur and others : (1996)  1 SCC 35, this Court following Tulasamma (supra) held as under :- \023The principles enunciated in this decision have been  reiterated in a number of decisions later but have never  been departed from. According to this decision, Sub- section (2) is confined to cases where property is  acquired by a female Hindu for the first time as a grant  without any pre-existing right under a gift, will,  instrument, decree, order or award, the terms of which  prescribe a restricted estate in the property. It has also  been held that where the property is acquired by a Hindu  female in lieu of right of maintenance inter alia, it is in  virtue of a pre-existing right and such an acquisition  would not be within the scope and ambit of Sub-section  (2) even if the instrument, decree, order or award  allotting the property to her prescribes a restricted estate  in the property. Applying this principle, it must be held  that the suit lands, which were given to Harmel Kaur by  Gurdial Singh in lieu of her maintenance, were held by  Harmel Kaur as full owner thereof and not as a limited  owner notwithstanding the several restrictive covenants  accompanying the grant. (Also see the recent decision of  this Court in Mangat Mal v. Punni Devi where a right to  residence in a house property was held to attract Sub- section (1) of Section 14 notwithstanding the fact that the  grant expressly conferred only a limited estate upon her.)  According to Sub-section (1), where any property is  given to a female Hindu in lieu of her maintenance  before the commencement of the Hindu Succession Act,  such property becomes the absolute property of such  female Hindu on the commencement of the Act provided  the said property was "possessed" by her. Where,  however, the property is given to a female Hindu towards  her maintenance after the commencement of the Act, she  becomes the absolute owner thereof the moment she is  placed in possession of the said property (unless, of  course, she is already in possession) notwithstanding the  limitations and restrictions contained in the instrument,  grant or award whereunder the property is given to her.  This proposition follows from the words in Sub-section  (1), which insofar as is relevant read : "Any property  possessed by a female Hindu....after the commencement  of this Act shall be held by her as full owner and not as a  limited owner". In other words, though the instrument,  grant, award or deed creates a limited estate or a  restricted estate, as the case may be, it stands transformed  into an absolute estate provided such property is given to  a female Hindu in lieu of maintenance and is placed in

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her possession. So far as the expression "possessed" is  concerned, it too has been the subject-matter of  interpretation by several decisions of this Court to which  it is not necessary to refer for the purpose of this case.\024                                                         (emphasis supplied)

17.     In view of the aforementioned binding authoritative  pronouncements of this Court, we are of the opinion that the pre- existing right of Sundrabai was crystallized by reason of the said  consent decree.  Furthermore there is nothing on record to show that  12 acres 33 guntas of land was the only property belonging to the joint  family and thus, she had been granted more lands to which she was  not entitled to.   

18.     In view of the matter, we do not find any infirmity in the  impugned judgment.  The appeal is accordingly dismissed with costs.   Counsel\022s fees assessed at Rs.10,000/-.