http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: RANI BAI

       Vs.

RESPONDENT: SHRI YADUNANDAN RAM & ANR.

DATE OF JUDGMENT: 19/02/1969

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C. RAMASWAMI, V.

CITATION:  1969 AIR 1118            1969 SCR  (3) 789  1969 SCC  (1) 604  CITATOR INFO :  RF         1977 SC1944  (26)  RF         1979 SC 993  (3)

ACT: Hindu Women’s Right to Property Act, 1937, s. 3(2)-Right  of predeceased son’s widow to hold father-in-law’s property for maintenance--Scope of.

HEADNOTE: J owned certain inherited properties and his son predeceased him  leaving the appellant his widow as his heir  and  legal representative.  After the son’s death, J married B in 1948. J  himself  died  in  1950 and after  his  death  the  first respondent claimed the properties by virtue of a gift  deed. On this basis he obtained possession of the properties  from the  appellant  under s. 145 Cr.P.C.  in  December  1962.The appellant,  together with J’s widow B instituted a suit  for declarations  respect of  her tights and for  possession  of the  properties. During the pendency of  the suit B  entered into  a compromise with the first respondent giving  up  all her claims.  The Trial Court found that the appellant was in possession until dispossessed by the first respondent  under s.145  Cr.   P.C  and  that  the  respondent  had  illegally occupied the properties.  However, the Court non-suited  the appellant  on the ground that since her husband had died  in the  life-time  of J, the latter’s assets  devolved  on  his widow  B who would be his only heir.  Although the  District Judge  allowed  the first appeal and remanded  the  case,  a further  appeal by the first respondent was allowed  by  the High  Court  on the view that the appellant  could  have  no interest in the properties left by J and she could not  take advantage of the provisions of s. 3(2) of the Hindu  Women’s Right to Properties Act, 1937 which conferred certain rights on the widow of a predeceased son.  It further held that the rightful  claimant  of the properties of J was B  alone  and owing  to  the  compromise entered into by  her,  the  first respondent  was  ’.clothed with the same rights  which  were possessed by her". On appeal to this Court, HELD : Allowing the appeal : The High Court’s decision  must

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

be reversed and that of the District Judge restored. It  could  not be disputed that the appellant  who  was  the widow  of the predeceased son of J was entitled  to  receive maintenance,  so  long as she did not remarry, out  of  the’ estate   of  her  father-in4aw.   Although  her  claim   for maintenance  was not a charge upon the estate until  it  had been fixed and specifically charged thereupon, her right was not liable to be defeated except by transfer to a bona  fide purchaser  for value without notice of a claim or even  with notice  of the claim unless the transfer was made  with  the intention of defeating her right. [793 B] The appellant was presumably in possession of the properties in  lieu  of  her  right of maintenance  and  could  not  be deprived  of  them even by B without first  securing  proper maintenance for heir out of the properties. Rachawa  &  others v. Shivayogappa, I.L.R. 18 Bom,  679  and Yellawa  Ors, v. Bhimangavda, I.L.R. 18 Bom.  452;  referred to, 790 The  High  Court  was in error in  holding  that  the  first respondent was clothed with the very same rights which  were possessed" by B. If the Trial Court’s finding that the first respondent  was  a  mere trespasser was right,  it  was  not possible  to see how B could effect the transfer of all  her rights  by merely filing a petition to the effect  that  she did not wish to prosecute a suit as a plaintiff. [794 E-G] Ismail Ariff v. Mohamed Ghouse, 20 I.A. 99, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 532 of 1966. (In forma pauperis). Appeal  by special leave from the judgment and  order  dated September 17, 1962 of the Madhya Pradesh High Court in Misc. Appeal No. 22 of 1962. M.   V. Goswami, for the appellant. S. C. Agarwala and D. P. Singh for respondent No. 1. The Judgment of the Court was delivered by Grover,  J. This is an appeal in forma pauperis  by  special leave  from a judgment of the Madhya Pradesh High  Court  at Jabalpur  dismissing  the  suit  of  the  appellant  for   a declaration  that she was the owner of the  suit  properties and for possession thereof. Jangi   Jogi  had  inherited  from  his  father   properties consisting  of some groves and a house in village  Mukupdpur which was in the erstwhile State of Rewa which later  became a  part of the St-ate now called Madhya Pradesh.  He  had  a son  Laldas who is stated to have died in 1945  leaving  the appellant, his widow, as, his heir and legal representative. After  the  death of Laldas Jangi Jogi is  alleged  to  have married  Mst.   Jugli  Bai in the  year  1948.   Jangi  Jogi himself  died sometime in 1950.  Respondent No. 1 is  stated to  have raised a claim to the properties of Jangi  Jogi  by virtue  of a gift deed.  On the basis of that deed be  moved the  criminal courts under S. 145, Criminal  Procedure  Code and  on  December 29, 1962 an order was made  directing  the possession  of  the properties to be delivered to  the  said respondent.  The appellant, therefore, instituted a suit  in the  court  of  Civil judge at Rewa  for  a  declaration  in respect  of her rights and for possession of the  properties mentioned  in  the plaint.  The suit was instituted  by  the appellant  along  with Jugli Bai the widow  of  Jangi  Jogi. Respondent No. 1 who was the sole defendant in the suit  put up several pleas claiming, inter alia. that he had ’been  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

continuous  possession of the suit properties for more  than twelve years and had become the owner.  Alternatively it was pleaded  if  any  one could have any interest  it  would  be plaintiff  No. 2 Jugli Bai but she had as a matter  of  fact not  joined  in  the suit and her thumb  impression  on  the plaint had been obtained by fraud.  On the 791 pleadings  of the parties the trial court framed as many  as 12 issues.  During the pendency of the suit plaintiff No.  2 Jugli  Bai  entered into compromise with  respondent  No.  1 giving up all her claims. The trial court found that the thumb impression of plaintiff had  not  been obtained by fraud but that  she  had  changed sides much to the disadvantage of the appellant.  As regards the  deed of gift set up by respondent No. 1, it  was  found that Jangi Jogi had never made such a gift.  It was  further found  that  the appellant was in possession until  she  had been  dispossessed  by  respondent No. 1  by  means  of  the proceedings  under  s. 145, Cr.P.C. According to  the  trial court  the said respondent had illegally occupied the  lands for  some  time  and since the  proceedings  under  s.  145, Cr.P.C.,  resulted in his favour he was put into  possession through  the process taken under those proceedings.  So  far as the title of respondent No. 1 was concerned it was  found that his position was that of a mere trespasser.  The  trial court,  however, nonsuited the appellant on the ground  that since  her husband ’had died in the lifetime of  Jangi  Jogi the later’s estate devolved on his widow Jugli Bai who would be his only heir and she had entered into a compromise  with respondent  No.  1. The appellant went up in appeal  to  the court  of District Judge, Rewa.  The learned District  Judge examined  the point whether the compromise entered  into  by one of the plaintiffs Jugli Bai with the defendant was valid and  should  have been given effect to by the  trial  court. According to him it could not be said that the appellant bad no right or interest in the properties left by Jangi  Jogi. He  felt that the compromise which had been entered into  by Jugli  Bai and the, defendant should not have been  accepted as the appellant was not a party to that compromise.  He was further of the view that the trial court bad not decided all the  matters which arose for decision.  He,  therefore,  set aside  the decree of the trial court and remanded  the  case with  directions  to re-admit the suit  under  its  original number and dispose it of in accordance with law.  Respondent No. 1 filed a second appeal before the High Court.  The High Court took the view that the present appellant could have no interest  in the properties left by Jangi Jogi.   She  could not take advantage of the provision of s. 3(2) of the  Hindu Women’s  Right to Property Act 1937 which conferred  certain rights  on the widow of a pre-deceased son. in view  of  the decision of Federal Court in Umayal Ach; v. Lakshmi Achi(1). The  aforesaid  Act had been extended to Rewa State  by  the Part C (State Laws) Act 1950 which came into force on  April 16,  1950,  It was urged, inter alia before the  High  Court that the appellant could take a boy in adoption and as  soon as  such an adoption was made its effect would be  that  the adoptee would be the son not only of the (1)  [1945] F.C.R, 1, 792 widow  but of her deceased husband as well and further  that she  had a claim for maintenance over the suit  lands.   The High Court disposed of this contention-by saying               "It is not possible to prejudge the results of               ’an adoption which may, or may not, be made by               Smt.  Ranibai at all.  Similarly, this is not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

             a  case in which the right of maintenance  was               sought  to be enforced against Smt.   Juglibai               on  the  property which was inherited  by  her               from the last male holder, Jangi Jogi.  It may               be  possible  to take up  these  questions  in               appropriate proceedings." According  to the High Court the compromise which  had  been entered into between Jugli Bai and respondent No. 1 did  not adversely  affect  the  right,  title  or  interest  of  the appellant as she had no right, title or interest in the suit lands.  It was contended on behalf of the appellant that she was  in possession of the properties at the time  respondent No.  1  dispossessed her by committing an act  of  trespass and,   therefore,  she  was  entitled  to   restoration   of possession  of  those properties from the  trespasser.   The High  Court  disposed this of by saying  that  the  rightful claimant on the death of Jangi Jogi was Jugli Bai alone  and owing to the compromise entered into by her respondent No. 1 was  clothed  with the same rights which were  possessed  by her.   It  was  further  held by the  High  Court  that  the compromise had been properly and lawfully recorded and given effect to by the trial court under 0. 23, r. 3 of the  Civil Procedure Code. Now  Jugli Bai had filed an application under 0. 23,  r.  1, Civil Procedure Code, on February 19, 1959 before the  trial court  saying,  inter  alia, that  her  signature  or  thumb impression   on   the   plaint   had   been   obtained    by misrepresentation by the appellant.  The application  stated that  she  was not interested in prosecuting  the  suit  and therefore  she  was  withdrawing the  same.   The  following portion from that application may be reproduced               "..........  plaintiff  No.  2  withdraws  her               plaint   and  the  statement  of  claim   made               therein,  and so far as she is  concerned  she               withdraws the suit and prays that no claim  be               decreed in her favour nor any relief mentioned               in  plaint be granted in her favour.   On  the               other hand, the plaint may be dismissed to the               extent  of  her  claim.  She  is  also  filing               herewith  a compromise to that effect  arrived               at   with   the  defendant,   which   may   be               accepted......" An application was also filed under 0. 23, r. 3 of the Civil Procedure Code, which purposed to bear the thumb  impression of Jugli.  Bai and was signed by respondent No. 1. All  that was 793 stated  therein  was  that the suit of plaintiff  No.  2  in respect of suit lands be dismissed and no relief be  granted in  accordance  with the prayer made in the plaint.   It  is difficult to see how on the basis of these applications  the suit  of  the appellant could be dismissed.   It  cannot  be disputed   that  the  appellant  who  is  the  widow  of   a predeceased  son  of  Jangi Jogi  was  entitled  to  receive maintenance so long as she did not remarry out of the estate of  her father-in-law.  Although her claim  for  maintenance was not a charge upon the estate until it had been fixed and specifically  charged thereupon her right was not liable  to be defeated except by transfer to a bona fide purchaser  for value  without notice of a claim or even with notice of  the claim  unless  the transfer was made with the  intention  of defeating  her  right.  The courts in India have  taken  the view  that  where  a widow is in possession  of  a  specific property  for  the purpose of her  maintenance  a  purchaser buying  with  notice  of  her  claim  is  not  entitled   to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

possession  of that property without first  securing  proper maintenance   for   her  :  [vide  Rachawa   &   Others   v. Shivayogappa(1)).   In Yellawa & Ors. v.  Bhimangavda(2)  it was  taken  to be the settled practice of  the  Bombay  High Court  not to allow the heir to recover the family  property from  a  widow entitled to be maintained out of  it  without first  securing  a  proper maintenance for her  out  of  the property  or  by  such  other  means  as  might  be   deemed sufficient.   it  is  clear  from  the  provisions  of   the Explanation  appearing in s. 14 a the Hindu  Succession  Act that a situation was contemplated where a female Hindu could be  in  possession  of joint family properties  in  lieu  of maintenance.  It may be mentioned that after the enforcement of the Hindu Adoption and Maintenance Act 1956 the rights of widowed daughter-in-law to maintenance are governed by s. 19 of that Act which, however, would not be applicable. In  the present  case  it  is  difficult  to  understand   how   the appellant could be deprived of the possession of property by a trespasser.  Moreover she was presumably in possession  of these  properties  in lieu of her right of  maintenance  and could  not  be deprived of them even by  Jugli  Bai  without first  securing  proper  maintenance  for  her  out  of  the aforesaid properties. The  rights  of  the appellant who  was  in  possession  qua respondent  No. 1 who was found by the trial court to  be  a trespasser  have not been properly considered by the  Court. On  this  point reference may be made to a decision  of  the Privy Council in Ismail Ariff v. Mohamed Ghouse(3).  In that case  in  a suit for a declaration that  the  plaintiff  was absolute  owner of the land in suit and for  an  injunction, the defence was that the land was subject to a wakf  created by  the  plaintiff’s  predecessor  in  title  and  that  the defendant was mutwali thereof.  Both courts found in (1)  I.L.R. 18 Bom. 679. (2)  I.L.R. 18 Bom. 452. (3) 20 I.A. 99. 794 favour of the plaintiff’s possession, and that the defendant was  not  the mutwali nor possessed of any interest  in  the land,  but differed as to the dedication.  It was held  that the  plaintiff was entitled to a declaration as against  the defendant  that he was lawfully entitled to  possession  and the relief consequent thereon.  The following observation of Sir Richard Couch may be reproduced with advantage :               "It  appears to their Lordships that there  is               here  a misapprehension of the nature  of  the               plaintiff’s case upon the facts stated in  the               judgment.  The possession of the plaintiff was               sufficient evidence of title as owner  against               the defendant.  By S. 9 of the Specific Relief               Act (Act 1 of 1877), if the plaintiff had been               dispossessed  otherwise than in due course  of               law, he could, by a suit instituted within six               months  from  the date of  the  dispossession,               have recovered possession, notwithstanding any               other title that might be set up in such suit.               If  he  could thus  recover  possession  from,               person who might be able, to prove a title, it               is certainly right and just that he should  be               able, against a person who has no title and is               a mere wrong-doer, to obtain a declaration  of               title as owner,-and an injunction to restrain               the   wrongdoer  from  interfering  with   his               possession." Keeping  the above statement of law in view it must be  held

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

that  the High Court was in error in considering that  since Jugli  Bai had entered into some compromise with  respondent No.  1  the  trial court was  justified  in  dismissing  the appellant’s  suit.  It is somewhat difficult  to  understand the observation of the High Court that respondent No. 1  was "clothed  with the very same rights which were possessed  by Jugli  Bai".  If the findings of the trial court  was  right that  respondent  No.  1 was a mere trespasser,  it  is  not possible to see how Jugli Bai could effect a transfer of all her  rights by merely filing a petition to the  effect  that she  did not wish to prosecute the suit as  a  co-plaintiff. As has been pointed out the appellant had a possessory title and was entitled to restoration of possession in case it was found that respondent No. 1 had no right, title or  interest whatsoever  and was a mere trespasser.  The  appellant  was further  entitled  to  remain in  possession  if  she  could establish that she had entered into possession by virtue  of her claim or right to maintenance until the person laying a claim  to  the  estate  of  Jangi  Jogi  made  some   proper arrangement  for the payment of maintenance to  her.   These are,  however,  matters on which no final  opinion  need  be expressed as the District Judge was of the opinion that  the trial  court  had  not given a proper decision  on  all  the issues and for that reason the suit had been remanded for  a fresh decision on all the questions of fact 795 and law.  In the view that we have taken the decision of the High Court has to be reversed and that of the District Judge restored. The  appeal is thus allowed with costs here and in the  High Court.   The amount of court fee shall be recovered  by  the Government  from respondent No. 1 in accordance  with  Order 17, Rule 8 of the Supreme Court Rules.  Costs of appellant’s Advocate  to  be  taxed against Respondent No.  1  and  made recoverable from him. R.K.P.S.                  Appeal allowed. 796