Singh & Ors Vs. Jagjit Kaur & Ors  INSC 662 (13 November 1995)
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Majmudar S.B. (J) B.P. Jeevan Reddy, J.
1996 AIR 855 1996 SCC (1) 35 JT 1995 (8) 161 1995 SCALE (6)476
counsel for the parties.
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.
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.
Kaur filed a petition under Section 488 of the Criminal Procedure Code (old
code) for grant of maintenance.
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:
That the possession of the land in dispute was given to Harmel Kaur defendant
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.
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.
during the life time of Harmel 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
maintenance allowance of Rs.25/- per month already being paid to her, shall be
Kaur shall also be entitled to keep her residence at V.Mehraj in the house
belonging to Gurdial Singh.
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.
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/-.
that basis, mutation was also effected in the name of the appellants.
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.
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.
courts below have decreed the suit holding that under the compromise
aforementioned, only a life interest was created in Harmel Kaur and not an
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
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
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 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.
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.
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 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 where under the property is given to her.
This proposition follows from the words in sub-section (1), which insofar as is
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.
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
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.
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.