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PETITIONER: SMT. BENI BAI

       Vs.

RESPONDENT: RAGHUBIR PRASAD

DATE OF JUDGMENT:       24/02/1999

BENCH: V.N.Khare, Syed Shah Mohammed Quadri

JUDGMENT:

V.N.KHARE, J.

     One  Nanho Dubey, father of the appellant herein,  was the  owner in possession of House No.  27 situate in Mohalla purani Kotwali, in the town of Jhansi.  During his life time Nanho  Dubey executed a Will on 16.12.1935 in respect of his properties,   including  House  No.    27,  which  was  duly registered.  It was the last Will of Nannhu Dubey whereunder Raghubir Prasad - the respondent herein, was to be the owner of the House No.  27 only after the death of testators wife Smt.   Bhagwati  Bai.   Smt.  Bhagwati Bai, widow  of  Nanho Dubey was given only life interest in the said house in lieu of  her maintenance.  Nanho Dubey died in May, 1943.   After the  death  of  the testetor, his widow Smt.   Bhawwati  Bai entered  into the possession of the house for her life time. On  28.3.62,  Smt.   Bhagwati Bai executed a  Gift  Deed  in respect  of  House No.  27 in favour of her daughter who  is the  appellant  before  us.   It  is  at  this  stage,   the plaintiff-respondent  filed a suit for declaration that  the Gift  Deed  dated 28.3.62 executed by Smt.  Bhagwati Bai  in favour of her daughter is illegal and void.  The trial court dismissed  the  suit on the ground that Smt.   Bhagwati  Bai having possessed the house in lieu of her pre-existing right she  became  the  absolute owner under  sub-  section(1)  of Section 14 of the Hindu Succession Act (hereinafter referred to  as  the  Act) and the Gift Deed executed  by  her  was valid.   The  First Appellate Court allowed the  appeal  and decreed  the suit on the premise that the present case is to govern  by  sub-section(2) of Section 14 of the Act  as  the source  of  right was conferred for the first time  on  Smt. Bhagwati  Bai  by virtue of the Will.  The judgment  of  the First  Appellate Court was affirmed by the High Court in the second appeal.

     Learned counsel appearing for the appellant urged that once Smt.  Bhagwati Bai- widow of Nanho Dubey had been given the  right of possession in lieu of her maintenance, it  was in recognition of her pre- existing right.  The said limited right  was  transformed into an absolute right by virtue  of sub-section(1)  of Section 14 of the Act and as such she was legally  competent  to  gift the property in favour  of  her daughter.   On  the other hand, the contention on behalf  of respondent  is  that since the widow of Nanhu Dubey got  the

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right  by  virtue of a Will for the first time,  her  rights would be governed by sub-section(2) of Section 14 of the Act and  in that case, she was not legally competent to  execute the Gift Deed in favour of the appellant.

     According  to old Shastric Hindu law, marriage between two  Hindus is not a contract but a sacrament.  The marriage is  regarded as a holy union of wife and husband and by such union  the  wife  becomes part and parcel  of  the  husband. Under  the Shastric Hindu law, after marriage it is a  pious obligation  on the part of the Hindu husband to maintain his wife  during his life time and after his death the widow  is to  be maintained out of the property of the husband if  the husband  has  left  any property.  This was  on  account  of spiritual  relationship  between a Hindu husband  and  wife. This  principle was statutorily recognized by the enactments known  as  Hindu  Womens Rights to Property Act,  1937  and Hindu  Married  Womens  Rights to  Separate  Residence  and Maintenance  Act, 1946.  Under these two Acts, the right  to maintenance of a Hindu widow was preserved as a pre-existing right.   After independence it was felt necessary to  assure the  equality of right in property to a Hindu female and  to remove the artificial disparity in right to property where a male  was entitled to obtain full ownership in the  property and  a  Hindu  female  would only be  contained  by  limited ownership  because of the restrictions imposed on her by the Hindu law.  With this object in mind, Parliament enacted The Hindu  Succession Act, 1956.  After the Act came into force, the question arose whether the right of maintenance given to a  widow  would  crystalised into a  full-fledged  right  by virtue  of  Section  14 (1) of the Act.  After a  number  of decisions  by this Court, the said question is no longer res integra.

     This  Court  in V.Tulasamma vs.  Sesha Reddi (1997)  3 SCC 99 at 125 has held as under :-

       38.  Thus the following propositions emerge from  a detailed discussion of this case :

     (1)   that  the  widows   claim  to  maintenance   is undoubtedly a tangible right though not an absolute right to property so as to become a fresh source of title.  The claim for  maintenance can, however, be made a charge on the joint family  properties, and even if the properties are sold with the  notice of the said charge, the sold properties will  be burdened with the claim for maintenance;

     (2)  that  by  virtue of the Hindu Womens  Rights  to Property  Act,  1937, the claim of the widow to  maintenance has  been  crystallized  into a full-fledged right  and  any property  allotted  to  her in lieu of  maintenance  becomes property to which she has a limited interest which by virtue of  the  provisions  of  Act of 1956  is  enlarged  into  an absolute title ;

     (3) Section 14(2) applies only to cases where grant is not in lieu of maintenance or in recognition of pre-existing rights but confers a fresh right or title for the first time and while conferring the said title certain restrictions are placed  by the grant or transfer.  Where, however, the grant is  merely  in  recognition  or   in  implementation  of   a pre-existing  right  to  claim maintenance, the  case  falls beyond  the  purview  of Section 14(2)  and  comes  squarely within the explanation to Section 14(1).

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     The  aforesaid  case  was  followed in  Ram  Kali  vs. Choudhri  Ajit Shankar (1997) 9 SCC 613.  This Court held in Ram Kalis case as under :-

     16.   The  only  argument  raised before  us  by  the learned counsel for the respondents was that on the facts of this  case Section 14(2) of the Hindu Succession Act applies and not Section 14(1).  According to the learned counsel for the  respondents the Hindu women have no pre-existing  right for  maintenance  and  assuming  she had so,  that  must  be pursuant  to  Hindu Womens Right to Property Act, 1937  and not  earlier.  This argument is not available in view of the clear pronouncement to the contrary in Tulasamma case.

     This Court in Raghubar Singh vs.  Gulab Singh (1998) 6 SCC 314, held as under :-

     26.  It is by force of Section 14(1) of the Act, that the  widows  limited interest gets  automatically  enlarged into  an  absolute  right  notwithstanding  any  restriction placed  under  the  document or the instrument.  So  far  as sub-section  (2)  of Section 14 is concerned, it applied  to instruments,  decrees, awards, gifts, etc., which create  an independent  or a new title in favour of the female for  the first  time.   It  has  no application to  cases  where  the instrument/document   either  declares  or   recognizes   or confirms  her  share  in the property or  her  pre-existing right  to  maintenance  out of that property.  As  held  in Tulasamma  case  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) of the Act.

     From the aforesaid pronouncement of law by this Court, it  is  clear that sub-section (1) of Section 14 applies  to the cases where the conferment of right to a Hindu widow was in lieu of maintenance or in recognition of her pre-existing right  as provided under the Shastric law and Hindu  Womens Rights  to  Property Act.  Sub-sections(2) of Section 14  of the Act would apply only to such cases where grant conferred a  fresh  right  or  title  for the  first  time  and  while conferring  the said right certain restrictions were  placed by the grant or transfer.

     In  the  present  case, the widow  was  conferred  the limited  right in lieu of maintenance in recognition of  her pre-existing right.  The limited interest conferred upon her by  virtue  of the Will being in lieu of maintenance and  in recognition  of  her  pre-existing  right,  the  said  right transformed  into an absolute right by virtue of Section  14 (1) of the Act.  The said right was not conferred on her for the  first time.  Thus sub-section (2) of Section 14 of  the Act  has  no  application to the present case.   Under  such circumstances,  the widow became the absolute owner of House No.   27 and was fully competent to execute the Gift Deed in favour of her daughter.  The Gift Deed executed by the widow was thus valid.

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     For  the  foregoing reasons, the view taken the  First Appellate  as well as the Second Appellate Court deserve  to be  set aside.  We accordingly set aside the judgment of the First  Appellate Court as well as the Second Appellate Court and  the suit filed by the plaintiff- respondent shall stand dismissed.   The appeal is allowed.  There shall be no order as to costs.