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PETITIONER: NAZAR SINGH AND ORS.

       Vs.

RESPONDENT: JAGJIT KAUR AND ORS.

DATE OF JUDGMENT13/11/1995

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) MAJMUDAR S.B. (J)

CITATION:  1996 AIR  855            1996 SCC  (1)  35  JT 1995 (8)   161        1995 SCALE  (6)476

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T B.P.JEEVAN REDDY,J.      Leave granted. Heard counsel for the parties.      This appeal  is  preferred  against  the  judgment  and decree of  the Punjab  and Haryana High Court dismissing the second appeal  filed by  the defendants-appellants. The suit for "possession  of the  land (suit  lands) to the extent of 7/8th share"  has  been  decreed  by  the  trial  court  and affirmed in appeal and second appeal.      Gurdial Singh  was a  resident of a village in Bhatinda district in Punjab. He owned 94 kanals and 19 marlas of land in the  village. He  was working as an employment officer in Madhya Pradesh.  The relations  between him  and  his  wife, Smt.Harmel Kaur,  were strained.  They  were  living  apart. Harmel Kaur  filed a  petition  under  Section  488  of  the Criminal Procedure Code (old code) for grant of maintenance. In those  proceedings, a  compromise was  arrived at between Gurdial Singh  and Harmel Kaur whereunder the suit lands (94 kanals and 19 marlas in extent) were given to Harmel Kaur in lieu of her maintenance. The compromise entered into between them is  evidenced by  Exh. P-3.  The lands  were  given  to Harmel Kaur subject to the following conditions:      "1. That  the possession  of the land in      dispute  was   given  to   Harmel   Kaur      defendant No.4.      2. That Harmel Kaur would be entitled to      get the  land cultivated  or to lease it      out  and   to  utilize  its  income  for      herself, wherever she likes.      3. That  she would  not sell or mortgage      this  land.   She   would   however   be      responsible  for  the  payment  of  land      revenue or any other Govt. Tax from time      to time.      4. If  during the  life time  of  Harmel

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    Kaur, Gurdial  Singh gets  back the land      from her  he would  pay her  Rs.50/- per      month as maintenance.      5. If  Gurdial Singh  died before Harmel      Kaur, then,  in that  case, Harmel  Kaur      would be  entitled to get her share from      the  said   land  as  a  legal  heir  in      accordance with the law.      6. The  maintenance allowance of Rs.25/-      per month  already being  paid  to  her,      shall be stopped.      7. Harmel Kaur shall also be entitled to      keep her  residence at  V.Mehraj in  the      house belonging to Gurdial Singh.      8. Harmel  Kaur also  thumb marked  this      agreement/compromise and  agreed that in      case the  land is  taken  away  back  by      Gurdial  Singh,   then  she   would  get      Rs.50/- per  month as  maintenance  from      him."      Exh.P-3 is dated December 3, 1963.      Gurdial Singh died on July 30, 1981. Harmel Kaur  executed four  sale deeds in November, 1987 and August, 1988  in favour  of Defendant Nos.1 to 3 (appellants herein) whereunder  she sold 70 kanals and 19 marlas of land out of  the suit lands for a consideration of Rs.1,62,200/-. On that basis, mutation was also effected in the name of the appellants.      In January,  1991 the present suit was filed. The first plaintiff claimed  to be  the wife  (second wife) of Gurdial Singh while  Defendant  Nos.2  to  4  claimed  to  be  their daughters. According  to the plaintiffs, the first plaintiff was married to Gurdial Singh on March 21, 1946. They claimed a 7/8th  share in the suit lands (including 70 kanals and 19 marlas sold  to the appellants) under and in accordance with the Hindu Succession Act. According to them, Harmel Kaur was entitled only  to a  1/8th share. The defendants denied that the first  plaintiff was  married to  Gurdial Singh  or that Plaintiff Nos.2  to 4  are the  daughters of  Gurdial Singh. This issue  is, however,  concluded by  the finding  of  the first appellate court to the effect that the first plaintiff was indeed married to Gurdial Singh and that Plaintiff Nos.2 to 4 are their daughters.      The courts  below have  decreed the  suit holding  that under the  compromise aforementioned,  only a  life interest was created  in Harmel  Kaur and  not an  absolute interest. According to  them (the  High  Court  dismissed  the  second appeal in  limine), it  is sub-section  (2) of Section 14 of the Hindu  Succession Act  that applies  herein and not sub- section (1).  The correctness of the said view is questioned by  the  defendants-appellants.  Section  14  of  the  Hindu Succession Act, 1956 reads as follows:      "14. Property  of a  female Hindu  to be      her   absolute   property.--   (1)   Any      property possessed  by a  female  Hindu,      whether acquirod  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

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    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      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." According to  sub-section (1),  any property  possessed by a female Hindu  shall be held by her as full owner thereof and not as  a limited owner irrespective of the fact whether the said property was acquired by her before the commencement of the Act or after the commencement of the Act. Explanation to sub-section (1)  elaborates the  meaning and  content of the expression  "property"   in  sub-section  (1).  It  includes property given in lieu of maintenance.      Section 14  and the  respective scope and ambit of sub- section (1)  and (2) has been the subject-matter of a number of decisions  of this  Court, the most important of which is the decision  in V.Tulasamma  v.  V.Sesha  Reddi  (1977  (3) S.C.C.99)*. The  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 ------------------------------------------------------------ *Reference may  also be  had to  the decision in Jagannathan Pillai v.  Kunjithapadam Pillai  (1987 (2)  S.C.C.572) which deals with  post-Act acquisition  of property  by  a  female Hindu. accompanying the  grant. [Also  see the  recent decision  of this Court  in Mangat  Mal v. Punni Devi (1995 (6) S.C.C.88) 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

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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   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.      The  learned  counsel  for  the  respondents-plaintiffs relied upon  a recent  decision of  this Court  in Gumpha v. Jaibai (1994  (2) S.C.C.511)  in support  of his  contention that in  the facts  of this  case, it  is sub-section (2) of Section 14  and not  sub-section (1)  that is attracted. But that was  a case where certain property was given to a Hindu female under  a Will.  The Bench  held that  since  Will  is referred to  only in  sub-section (2) and not in sub-section (1), it  is sub-section (2) that is attracted in the case of a property  bequeathed under  a Will.  Since, the suit lands were given to Harmel Kaur under a compromise - and not under a  Will  -  the  principle  of  the  said  decision  has  no application herein.      For the  above reasons,  we hold  that the  said  lands became the  absolute property  of Harmel Kaur the moment she was placed  in possession  thereof. (It is not disputed that the said  property was  indeed placed  in her possession and that she  was in  possession and  enjoyment thereof from the date of the aforesaid compromise.) Once this is so, the suit must fail.  The courts  below were  in error in holding that because the  compromise whereunder the said lands were given to Harmel  Kaur towards  her  maintenance,  created  a  life estate and  a restricted  estate, sub-section (1) of Section 14 is  not attracted  and that it is sub-section (2) that is attracted here.      The appeal  is allowed.  The judgment and decree of the trial court  as affirmed  by the  first and second appellate courts are  set aside and the suit is dismissed. There shall be no order as to costs.