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PETITIONER: SMT. HIMI D/O SMT. LACHHMU & ANR.

       Vs.

RESPONDENT: SMT. HIRA DEVI WD/O BUDHU RAM & ORS.

DATE OF JUDGMENT:       25/09/1996

BENCH: N.P. SINGH, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:                        J U D G M E N T S.B. Majumdar, J.      The appellants  who are  the heirs  of one Bai Lachhmu, are  the  original  plaintiffs  whose  suit  for  possession against the  respondent-donees of  suit  agricultural  lands claiming through  the donor  Bai Utti  came to be decreed by the Trail  Court and  which  decree  was  confirmed  by  the District Court  but who lost before the High Court in Second Appeal and consequently their suit for possession came to be dismissed by the High Court.      A few  relevant facts leading to the present proceeding by  special  leave  to  appeal  under  Article  136  of  the Constitution of  India may  be noted at the outset. the suit lands originally  belonged to  one Bali  Ram. Said  Bali Ram made a  will of  his properties  dividing equally  the  suit properties between  his second  wife Utti  and his  daughter from the  first wife Bia Lachhmu through whom the appellants claim. The legatees under the said Will of Bali Ram were his second wife  and his  daughter from the first wife who inter se were step-mother and step-daughter respectively.      Said Bali  Ram  died  on  25th  July  1946.  Thereafter Lachhmu claiming  her half  share in  the properties  on the basis of  the Will of her father Bali Ram filed a Civil Suit on 5th May 1947 against her step-mother Utti challenging the mutation of  properties in  her name  and for  enforcing her rights under  the Will  and for possession of her half share in the  properties as  a legatee under her father’s Will. In the said  suit between  step-daughter plaintiff  Bai Lachhmu and step-mother  Bai Utti  a compromise  was arrived  on 6th November 1947. Under the said compromise the defendant step- mother acknowledged  the ownership  of  the  half  share  of plaintiff Bia Lachhmu in the suit properties pursuant to the Will of  Bali Ram.  The plaintiff  Bai Lachhmu  on the other hand agreed that her properties comprising of the half share under her fathers’ will may remain in possession of Bia Utti during her  lifetime  but  after  the  death  of  Bai  Utti, plaintiff Bia  Lachhmu or  her heirs  would be  entitled  to enter upon  the possession  of the  suit properties.  It was also agreed  between the  parties that both the parties will have equal rights in the suit properties during the lifetime

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of Bai  Utti, the  step-mother of the plaintiff. Accordingly consent Decree  was passed.  We will  refer to  the relevant terms of  the consent  Decree a  little later. To resume the narration of  events Bai  Utti who  was permitted during her lifetime to  remain in  possession of  the properties  which were accepted  to be  belonging to  Bai Lachhmu  as per  the aforesaid Compromise  Decree, assuming  that she  had become full  owner   of  these   properties  during   her  lifetime presumably by  virtue of  Section 14  sub-section (1) if the Hindu Succession  Act, 1956 (hereinafter referred to as ’the Act’) donated  the suit  properties by  two gift Deeds dated 17th April  1970 and 26th August 1970 in favour of one Bellu Ram and  one Budhu respectively. Under these gift Deeds this apart from  her half share in the properties for which there was no  dispute she also gifted away the other half share of the properties  which belonged to Bai Lachhmu and which half share was  possessed by  her during her lifetime pursuant to the  Consent   Decree.  Accordingly  the  respective  donees entered upon  possession of there properties. Thereafter Bai Utti dies  on 4th  September 1971. The appellant as heirs of Bai Lachhmu filed a Civil Suit against both the donees Bellu Ram and  Budhu on  28th January  1972 claiming possession of the properties which according to the appellants belonged to Lachhmu and  which were illegally donated by Bai Utti to the concerned donees. The learned Trial Judge  after hearing the parties passed a decree for possession on 6th September 1976 in favour of the appellants, holding that they are the heirs if Bai  Lachhmu and  that the  defendants are  stopped  from challenging the Will as they had claimed  their rights under Bai Utti  and they  were bound  by the admission made by Bai Utti relating  to the  validity of  the Will  and the right, title and  interest regarding  the half share of Bai Lachhmu in the  suit properties.  The learned  Trial Judge also held that Bai  Utti who  was possessed  of these properties. When the Act came into force possessed  them as limited owner but not on account of any pre-existing right in these properties and that  her right flowed from the Compromise Decree passed in 1947  and consequently  she had  a restricted  estate not capable of being enlarges into absolute ownership on account of the  provisions of Section 14 sub-section (2) of the Act. Appeal preferred  against the  said decree  by the aggrieved defendant came  to be dismissed by the First Appellate Court on 19th  November 1979.  The aggrieved  defendant thereafter carries the matter in second appeal before the High Court. A learned Single Judge if the High Court took the view that as defendant Budhu  was a  third party and a stranger and as he was claiming  de hors  the Will  of Bali Ram and as the said Will was  not proved  in the  litigation between the parties and as  the admission  of Bai Utti regarding the validity of the Will  in the Consent Decree was not binding on Budhu the suit of  the appellants  was  liable  to  be  dismissed  and accordingly the  learned Single  Judge  of  the  High  Court allowed the  second appeal  and dismissed  the suit  of  the appellants, as noted above.  The said judgment and decree of the High  Court is  brought in challenge by the dissatisfied plaintiffs in this appeal.      Learned counsel for the appellants vehemently contended that the  compromise Decree  dated 6th November 1947 between the step-daughter  Bai Lachhmu,  predecessor-in-interest  of the appellants on the one hand and her step-mother Bai Utti, predecessor-in-interest  of   the   contesting   respondents conferred for  the first  time a right on Bai Utti to remain in possession  of  the  suit  lands  which  belongs  to  Bai Luchhmu. That  the  said  Consent  Decree  which  gave  life interest to  Bai Utti  does not acknowledge any pre-existing

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right of  Bai Utti  in the properties for maintenance as the step-daughter was  not bound  to maintain  the  step-mother. Therefore, the arrangement between the parties recognised by the Consent Decree created a new right in favour of Bai Utti to remain  in possession  of  the  decree  and  consequently Section 14  sub-section (2)  of  the  Act  applied  and  not Section 14  sub-section (1).  It was next contended that the High Court  had totally  gone  wrong  in  holding  that  the admissions contained  in the  Consent Decree  on the part of Bai Utti  were not  binding  on  the  respondents  who  were strangers to  the said  Decree. It was, therefore, contended that the High Court had patently erred in law in interfering with the  Decree of  the Trial Court as rightly confirmed by the First Appellate Court.      Learned counsel  for the  respondents on the other hand submitted that  admittedly the  contesting respondent-donees were not  admittedly the  contesting respondent-donees  were not parties  to the  Compromise Decree. That even though the Compromise Decree  acknowledged the  rights of  Bai  Lachhmu under the  Will of  her father  as the  Will was not legally proved on  record no right in the suit properties endured in favour of Bai Lachhmu and consequently the appellants as her heirs also cannot claim any interest in the suit properties. That the  suit properties  were possessed  by Bai  Utti when Section 14(1) of the Act came into operation and, therefore, her possession  as limited owner matured into full ownership pursuant to  Section 14(1)  and consequently  the  suit  was rightly dismissed by the High Court.      Having given  our anxious  consideration to these rival contentions we find that the High Court was not justified in upsetting the  decree for  possession as passed by the Trail Court and  as confirmed  by the  First Appellate  Court. The reason for  reaching this  conclusion is  obvious. It may be that in  the suit  filed by  Bai Lachhmu  the  step-daughter against Bai  Utti  her  stepmother  the  Will  of  Bali  Ram bequeathing one  half share  in the properties of the of the testator in favour of his daughter Bai Lachhmu was seriously disputed. But that dispute was settled and Bai Utti accepted by way  of compromise  the right,  title and interest of Bai Lachhmu in  the suit  properties as flowing form the Will of her father.  When we  turn to  the consent  terms dated  6th November 1947  we find  the following  clear recitals on the part of Bai Utti acknowledging the tight, title and interest of Bai Lachhmu in the suit properties :      "Defendant  no.1   Bai   Utti   had      accepted with  regard to  the  half      share in  right, title and interest      in favour  of the  plaintiff in the      remaining  lands,  the  will  dated      20th March  1946 made  by Bali, the      father of the plaintiff. As regards      in the remaining half lands, right,      title and interest thereto vests in      the  defendant   no.1.   Both   the      plaintiff and  defendant no.1  have      equal right,  title and interest in      these    lands.     However,    the      possession would  remain  with  the      defendant no.1  and that  after her      death  the   plaintiff   shall   be      entitled  to  take  the  possession      thereof, provided  she is alive and      if she  is  not  alive,  her  heirs      would  be   entitled  to  take  the      possession. ....  ....  .... decree

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    may  be  passed  in  terms  of  the      conditions   of   this   compromise      arrived at  between  the  plaintiff      and the  defendant  no.1,  and  the      case  file   be  consigned  to  the      Record room.      N.B.: During  the lifetime  of  the      defendant  no.   1,  the  plaintiff      shall  not   be  entitled  to  take      possession."      In view  of these  clear  recitals  in  the  Compromise Decree it becomes clear that Bai Utti who was defendant no.1 in that  suit acknowledged  the right, title and interest of plaintiff Bai  Lachhmu, her  step-daughter to  the extent of one half  share in  the suit  properties and share agreed to remain in  possession of  the properties during her lifetime only and it was clearly provided that on her death plaintiff Bai  Lachhmu   or  her  heirs  would  be  entitled  to  take possession of  these properties  obviously  as  full  owners thereof. Thus  only a  restricted   right to occupy the suit properties was  created in  the properties  belonging to the plaintiff Bai  Lachhmu in favour of her step-mother Bai Utti during the  latter‘s lifetime.  It is obvious that this life interest was  created not  in lieu  of any  pre-existing  or antecedent right  of Bai  Utti for  being maintained  by the plaintiff Bai  Lachhmu, her  step-mother . The step-daughter was  not   bound  to  maintain  her  step-mother  under  any provisions of  law. Nor  was there  any  pre-existing  legal right of  the step-mother  Bai Utti  qua  these  properties. Despite that  Bai Utti was permitted to remain in possession of plaintiff  Bai Lachhmu‘s property which was purely by way of a  concession to resolve the dispute between the parties. Thus the  right to remain in possession of the first rime on Bai Utti,  the step-mother by her step-daughter Bai Lachhmu, the plaintiff  in that suit. By these consent terms Bai Utti also acknowledged  the right  of the  plaintiff Bai  Lachhmu flowing from  her father‘s  Will. This life interest flowing from the  consent terms  in favour  of Bai  Utti, therefore, cannot be  said to  have been  created in acknowledgement of any pre-existing  right of maintenance. Consequently Section 14 sub-section  (1) could  not be  attracted on the facts of the present  case and  it is only Section 14 sub-section (2) which applied.  Section 14  with its  sub-sections reads  as under :      "14. Property  of a female Hindu to      be her absolute property. - (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, of  in      lieu of  maintenance or  arrears of      maintenance, or  by gift  from  any      person, whether  a relative  or  by      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

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    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."      It is  no doubt  true as  decided by  this Court in the case of  Vaddeboyina Tulasamma  and  others  v.  Vaddeboyina Sesha Reddi  (dead) by  L.Rs. AIR  1977 SC  1944  that  sub- section (2)  of Section  14 of the Hindu Succession Act is a proviso to sub-section(1) of Section 14. But Section 14 sub- section (1)  would apply  only if  property is  acquired  by female Hindu in lieu of maintenance or by virtue of any pre- existing right.  Bhagwati, J., (as he then was) speaking for himself and  A.C. Gupta,J.,  in the  aforesaid decision  has made the following pertinent observations in this connection in paras 3 and 4 of the Report :      "Sub-section (1)  of Section  14 is      large in  its amplitude  and covers      every  kind   of   acquisition   of      property   by    a   female   Hindu      including acquisition  in  lieu  of      maintenance and where such property      was possessed by her at the date of      commencement  of  the  Act  or  was      subsequently      acquired      and      possessed,  she  would  become  the      full owner  of the  property.  Sub-      section (2)  is more  in the nature      of a  proviso or  exception to sub-      section (1)  . It  excepts  certain      kinds of acquisition of property by      a Hindu  female from  the operation      of sub-section (1) and being in the      nature  of   an  exception   to   a      provision which  is  calculated  to      achieve   a   social   purpose   by      bringing about change in the social      and economic  position of  woman in      Hindu society, is must be construed      strictly so as to impinge as little      as possible  on the  broad sweep of      the     ameliorative      provision      contained in  sub-section  (1).  it      cannot be  interpreted in  a manner      which would  rob sub-section (1) of      its efficacy  and deprive  a  Hindu      female of  the protection sought to      be given to her by sub-section (1).       Sub-section  (2) must,  therefore,      be read  in  the  context  of  sub-      section (1) so as to leave as large      a scope  for operation  as possible      to sub-section  (1) and so read, to      must be  confined  to  cases  where      property is  acquired by  a  female      Hindu for the first time as a grant      without  any   pre-existing  right,

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    under  a  gift,  will,  instrument,      decree, order  or award,  the terms      of  which  prescribe  a  restricted      estate  in   the  property.  Where,      however, property  is acquired by a      Hindu female  at a  partition or in      lieu of right of maintenance, it is      in virtue of a pre-existing rightly      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 prescribes a      restricted estate in the property."      Applying the  aforesaid settled  legal position  to the facts  of  the  present  case  it  must  be  held  that  the Compromise Decree  for the  first time  created a  right  in favour of  Bai Utti  to remain in possession of the property belonging to  Bai Lachhmu  only during  her lifetime  and as that right  was conferred  for  the  first  time  under  the Consent Decree and was not in lieu of any pre-existing right of Bai Utti in Bai Lachhmu‘s property Section 14 sub-section (2) applied to the facts of the case and not Section 14 sub- section (1).  It is  difficult to  appreciate how  the  High Court persuaded  itself to  hold that  as the  Will was  not proved on  record and  as the  donees by  claiming the  suit properties from  the donor  Bai Utti  were strangers  to the Consent Decree  they were  not bound by the admission of Bai Utti  in   the  Consent  Decree.  It  is  obvious  that  the contesting  respondents   herein  who  were  donees  of  the properties could  not claim  a  better  title  to  the  suit properties than what was available to the donor Bai Utti. If Bai Utti was not the full owner of the properties she had no right to  gift  away  these  properties  in  favour  of  the respondent-donees. They could not be said to be strangers to the Consent  Decree, on  the contrary,  they  were  claiming through one  of the  parties to the Consent Decree, namely , Bai Utti.  The obligations  flowing from  the Consent Decree and  which   were  binding  to  the  donor  Bai  Utti  would necessarily bind  the donees,  namely, the  respondents  who stepped in  the shoes  of Bai  Utti .  They cannot claim any better right  than what  the donor had only a personal right to occupy  the properties during her lifetime, she could not have conveyed  any title of the properties to the donees. It is equally  difficult to  appreciate how  the learned Single Judge of  the High  Court could  hold that admissions of the predesor-in-title of  the respondent-donees were not binding on the  respondents. For  all these  reasons, therefore,  it must be held that the High Court was in error in interfering with the  Decree for possession as passed by the Trial Court and as  confirmed by  the First  Appellate Court  by holding that  Section   14  sub-section  (2)  of  the  Act  was  not applicable to the facts of the present case and Bai Utti had become the  full owner of the sit properties pursuant to the said provision.      In the  result this appeal succeeds and is allowed. The judgment and  decree of  the High  Court in  R.S.A. No.18 of 1978 dated  5th August 1988 is set aside, instead the decree padded in  favour of  the plaintiffs  by the  learned Senior Sub-Judge, Kulu  in 6th  September 1976  and as confirmed by the  learned  Additional  District  Judge,  Mandi,  Himachal Pradesh, on 9th November 1977 in Civil Appeal  No.50 of 1976 is restored.  In the  facts and  circumstances of  the  case there      will       be      no       order      as      to costs.

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