G. Rama Vs. T. G. Seshagiri
Rao (D) by LRS  INSC 1037 (7 July 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4215 OF 2008 (Arising
out of S.L.P. (C) No.19455 of 2006) G. Rama ...Appellant Versus T.G. Seshagiri
Rao (D) by Lrs. ...Respondents
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a learned Single Judge of the
Karnataka High Court allowing the appeal filed in terms of Section 96 read
with Order XLI of the Code of Civil Procedure, 1908 (in short the
facts in a nutshell are as follows:
The respondent T.G.
Seshagiri Rao who after his death has been substituted by his legal heirs, had
filed a suit with inter alia prayer to declare him as an absolute owner of the
plaint schedule property and to direct the defendant (appellant herein) to
deliver vacant possession of the suit schedule property. The suit property is a
residential house bearing No.257/1, 5th Cross, Kempegowda Nagar, Bangalore measuring
East West 15' x 5' and north south 35'.
case set out by the parties is as follows:
The schedule premises
was purchased by Kate T.G. Seshagiri Rao along with his uncle one T.K. Vasudeva
Murthy under a registered sale deed dated 5.6.1963 for a valuable sale
consideration of Rs.20,000/- and that his uncle T.K. Vasudeva Murthy
relinquished his right, title and interest which he had over the suit schedule
property in favour of the plaintiff under a registered release deed dated
17.4.1989 and by virtue of the release deed, the plaintiff became the absolute
owner of the suit schedule property. The defendant is the daughter in law of
T.K. Vasudeva Murthy who lost her husband in an accident and that she was
permitted to reside in the house as a licensee.
suit was filed seeking possession, as the defendant refused to vacate the
premises in spite of repeated requests and a legal notice.
defendant contested the case. According to her written statement, Sri T.K.
Vasudeva Murthy has no right to execute the sale deed and that Vasudeva
Murthy purchased the suit schedule property along with the plaintiff out
of the joint family nucleus and that joint family had consisted of
Vasudeva Murthy and his son Venkata Krishna, the deceased husband of the
defendant. According to her, after the death of her husband, she and her
daughter Soumya were also having equal rights along with Vasudeva Murthy.
It is her further case that she has been residing in the schedule premises
not as a licensee but in her own right as a daughter-in-law and that the
property was given to her by her in-laws till the marriage of her daughter
Soumya and to enjoy the same for life with an independent title. She also
contended that she was put in possession of the suit schedule property by
Vasudeva Murthy with an understanding that she would remain in possession
in lieu of maintenance and that she has acquired ownership as per the
provisions of Section 14 of the Hindu Succession Act, 1956 (in short the
on the above pleadings, the following issues were framed:
1. Whether the plaintiff
proves that he is the absolute owner of the suit schedule property as on the
date of filing of the suit?
2. Whether the plaintiff
further proves that he is entitled to the delivery of vacant possession of the
schedule property from the defendant?
3. Whether the plaintiff
is entitled to past and future mesne profits as claimed?
4. Whether the defendant
proves that she has perfected her title to the suit schedule property by way of
5. Whether the court fee
paid is insufficient?
6. Whether the defendant
proves that she has got a legal right to the extent of her share in the suit
7. To what order and
8. The plaintiff
examined himself as PW-1. He relied upon Exs.P1 to P9. The defendant examined
himself as DW 1. She did not produce any documents before the trial court. The
trial Court on appreciation of the evidence adduced by the parties, held issues
1 and 2 in the negative and further held that the plaintiff is entitled for undivided
half share in the suit schedule property and entitled for partition and
separate possession of his half share. In respect of issue No. 3, it was held
that "entitled for future mesne profits from the date of the suit till the
date of possession in respect of his half share". Issue No. 4 was answered
in the negative. Issue No. 5 was held in the affirmative. Issue No. 6 in
affirmative holding that the defendant is entitled to claim half share.
Ultimately, the suit of the plaintiff was decreed in part declaring that he has
become the absolute owner of the undivided half share and entitled for
partition and separate possession of his half share.
The said judgment and
decree was called in question before the High Court.
9. The High Court found
that the basic question related to Section 14(1) of the Act. It was noted that
a suit OS No. 4949 of 1991 for partition was filed by the defendant, appellant
herein. It was held that without any material, the trial court held that
defendant had become absolute owner pursuant to Section 14(1) of the Act.
10. Learned counsel for
the appellant submitted that the true scope and ambit of Section 14 of Act were
lost sight of by the High Court.
11. It is pointed out
that the property in question was given to her in lieu of maintenance and
therefore she had to shift from the main portion of the building to the out
house. It is pointed out that the claim is against the husband and not qua
recovering lost property. Strong reliance is placed on a decision of this Court
in V. Tulasamma and Ors. v. Sesha Reddy (d) by Lrs.(1977 (3) SCC 99).
12. It is pointed out
that after the death of her husband, attempt of her father-in-law and the
original plaintiff was to deprive her of the property over which she had
13. It is pointed out
that she was married to T.V. Venkatakrishna on 4.7.1979 and her husband died on
11.7.1980 and the child was born to her on 9.2.1981. The release deed was
purportedly executed by her father-in-law in 1989. The admitted position is
that her father-in-law wanted to deprive her of the legitimate rights and for
that purpose release deed was executed.
14. In response, learned
counsel for the respondent submitted that the factual scenario needs to be
noted. On 5.6.1963 the original plaintiff Seshagiri and Vasudeva Murthy who was
his uncle and the father-in-law of the defendant/ appellant purchased the
property jointly. They were partners in a partnership firm which was dissolved
on 16.8.1971. On 8.3.1981, portion of the land purchased jointly by Sheshagiri
and Vasudeva Murthy was sold to one Puttann. There was no challenge to it. On
17.4.1989 Vasudeva executed the release deed for consideration of 20,000/- in
favour of Sheshagiri. On 4.1.1990 the suit relating to the present dispute i.e.
OS No. 188 of 1990 was filed. Initially in the written statement filed,
defendant took the stand that the property in question was joint family
property and claimed half share. Subsequently, the written statement was
amended. Plea was taken that she was permitted to stay in lieu of maintenance
and so the property was of absolute property and in terms of Section 14 (1) of
the Act. On 19.8.1991 O.S. No. 4949 of 1991 i.e. suit for partition was filed
claiming the partition. There is no challenge to the release deed dated
17.4.1989 in the suit for partition. Appellant took the stand that it was a
joint family property and, therefore, he had half share. No specific issue
regarding the nature of the property was framed. There was no issue relating to
Section 14(1) of the Act and there was also no evidence led in that regard.
Strangely the trial court treated the suit as one for partition though the suit
was for declaration. There was no counter-claim filed by defendant- Rama. It is
pointed out that Vasudeva Murthy was alive when the trial of the suit
proceeded. Before the High Court an undertaking was given to vacant the
premises which was accepted subject to filing of an undertaking which was in
fact filed on 21.5.2004 after delivery of the judgment on 7.1.2004. Two years
after a review petition was filed on 10.8.2006 and the same was withdrawn on
15. As rightly contended
by learned counsel for the respondent there was no issue framed regarding
Section 14 of the Act. Even no evidence was led specifically to show that in
lieu of maintenance she was permitted to possess the property.
16. It is relevant to
note that the trial court made a reference to Section 19 of Hindu Adoption and
Maintenance Act, 1956 (in short the `Maintenance Act'). Unfortunately the High
Court did not take note of sub section (2) of Section 19 of the Maintenance
17. Section 14(1) of the
Act reads as follows:
"14. (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, 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.
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
18. Section 19 of the
Maintenance Act reads as follows:
Maintenance of widowed
daughter-in-law- (1) A Hindu wife, whether married before or after the
commencement of this Act, shall be entitled to be maintained after the death of
her husband by her father-in-law.
Provided and to the
extent that she is unable to maintain herself out of her own earnings or other
property or, where she has no property of her own, is unable to obtain
maintenance- from the estate of her husband or her father or mother, or from
her son or daughter, if any, or his or her estate.
(2) Any obligation
under sub-section (1) shall not be enforceable if the father-in-law has not the
means to do so from any coparcenary property in his possession out of which the
daughter-in-law has not obtained any share, and any such obligation shall case
on the re- marriage of the daughter-in-law.
19. In Sadhu Singh v.
Gurdwara Sahib Narike and Ors. [2006(8) SCC 75] it was inter alia observed as
"5. In the case
on hand, since the properties admittedly were the separate properties of Ralla
Singh, all that Isher Kaur could claim dehors the will, is a right to
maintenance and could possibly proceed against the property even in the hands
of a transferee from her husband who had notice of her right to maintenance
under the Hindu Adoptions and Maintenance Act. No doubt, but for the devise,
she would have obtained the property absolutely as an heir, being a Class I
heir. But, since the devise has intervened, the question that arises has to be
considered in the light of this position.
xxx xxx xxx
11. On the wording of
the section and in the context of these decisions, it is clear that the ratio
in V. Tulasamma v. V. Shesha Reddi (supra) has application only when a female
Hindu is possessed of the property on the date of the Act under semblance of a
right, whether it be a limited or a pre-existing right to maintenance in lieu
of which she was put in possession of the property. The Tulasamma ratio cannot
be applied ignoring the requirement of the female Hindu having to be in
possession of the property either directly or constructively as on the date of
the Act, though she may acquire a right to it even after the Act. The same is
the position in Raghubar Singh v. Gulab Singh [1998 (6) SCC 314] wherein the
testamentary succession was before the Act. The widow had obtained possession
under a Will. A suit was filed challenging the Will. The suit was compromised.
The compromise sought to restrict the right of the widow. This Court held that
since the widow was in possession of the property on the date of the Act under
the will as of right and since the compromise decree created no new or
independent right in her, Section14(2) of the Act had no application and
Section 14(1) governed the case, her right to maintenance being a pre-existing
right. In Mst. Karmi v. Amru and Ors. (1972 (4) SCC 86) the owner of the
property executed a Will in respect of a self-acquired property. The
testamentary succession opened in favour of the wife in the year 1938. But it
restricted her right. Thus, though she was in possession of the property on the
date of the Act, this Court held that the life estate given to her under the
Will cannot become an absolute estate under the provisions of the Act. This can
only be on the premise that the widow had no pre- existing right in the
self-acquired property of her husband. In a case where a Hindu female was in
possession of the property as on the date of the coming into force of the Act,
the same being bequeathed to her by her father under a will, this Court in
Bhura and Ors. v. Kashi Ram [(1994) 2 SCC 111]after finding on a construction
of the will that it only conferred a restricted right in the property in her,
held that Section 14(2) of the Act was attracted and it was not a case in which
by virtue of the operation of Section 14 (1) of the Act, her right would get
enlarged into an absolute estate. This again could only be on the basis that
she had no pre-existing right in the property. In Sharad Subramanyan v. Soumi
Mazumdar and Ors. (JT 2006 (11) SC 535) this Court held that since the legatee
under the will in that case, did not have a pre-existing right in the property,
she would not be entitled to rely on Section 14 (1) of the Act to claim an
absolute estate in the property bequeathed to her and her rights were
controlled by the terms of the will and Section14 (2) of the Act.
This Court in the
said decision has made a survey of the earlier decisions including the one in
Tulasamma. Thus, it is seen that the antecedents of the property, the
possession of the property as on the date of the Act and the existence of a
right in the female over it, however limited it may be, are the essential
ingredients in determining whether Sub- section (1) of Section 14 of the Act
would come into play. What emerges according to us is that any acquisition of
possession of property (not right) by a female Hindu after the coming into
force of the Act, cannot normally attract Section 14 (1) of the Act. It would
depend on the nature of the right acquired by her. If she takes it as an heir
under the Act, she takes it absolutely. If while getting possession of the
property after the Act, under a devise, gift or other transaction, any
restriction is placed on her right, the restriction will have play in view of
Section 14 (2) of the Act.
12. When a male Hindu
dies possessed of property after the coming into force of the Hindu Succession
Act, his heirs as per the schedule, take it in terms of Section 8 of the Act.
The heir or heirs take it absolutely. There is no question of any limited
estate descending to the heir or heirs. Therefore, when a male Hindu dies after
17.6.1956 leaving his widow as his sole heir, she gets the property as class I
heir and there is no limit to her estate or limitation on her title. In such
circumstances, Section 14 (1) of the Act would not apply on succession after
the Act, or it has no scope for operation. Or, in other words, even without
calling in aid Section 14 (1) of the Act, she gets an absolute estate."
20. In Sharad Subramanyan
v. Soumi Mazumdar & Ors. [2006(8) SCC 91] this court observed as follows:
"Mr. Bhaskar P.
Gupta, learned Senior Counsel for the respondents, rightly distinguished all
these cases, as it was clearly proved therein, that the properties had been
given to a female Hindu, either in recognition of or in lieu of her right to
maintenance under the Shastric Hindu Law or under the Hindu Adoption and
Maintenance Act, 1956.
were instances where the dispositions of property, albeit as a limited estate,
would blossom into a full interest by reason of Sub-section (1) of Section 14
of the Act.
further contended that there is no absolute rule that all properties demised to
a female Hindu were necessarily in recognition of or in lieu of her right to
maintenance. It was possible, even after the Act came into force, to create a
limited estate by reason of a gift or will. Such a situation would fall within
the ambit of Sub-section (2) of Section 14 of the Act as long as it was not in
recognition of or in lieu of a right to maintenance under the Shastric Hindu
Law or under a statute. Learned Senior Counsel relied on Section 30 of the Act,
which recognises the right of a Hindu to dispose of self-acquired property by
Will. Mr. Gupta relied on the judgment of this Court in Bhura and Ors. v. Kashi
Ram (1994 (2) SCC 111) which was also a case of limited estate conferred on a
female Hindu by a Will. This Court held that, upon a proper construction of the
Will, the bequeathal in favour of the female Hindu was clearly indicative of:
...the testator's intention of only creating a life interest in her and nothing
more and the various expressions used therein are indicative of and are
reconcilable only with the hypothesis that the testator was creating an estate
in favour of (the female Hindu) only for her lifetime and not an absolute
estate. [(1994)2 SCC 111] Thus, in view of the fact that there were no
indications, either in the Will or externally, to indicate that the property
had been given to the female Hindu in recognition of or in lieu of her right to
maintenance, it was held that the situation fall within the ambit of
Sub-section (2) of Section 14 of the Act and that the restricted life estate
granted to the female Hindu could not be enlarged into an absolute estate.
Learned Counsel for the respondents relied strongly on this judgment and
contended that there was no proposition of law that all dispositions of
property made to a female Hindu were necessarily in recognition of her right to
maintenance whether under the Shastric Hindu Law or under the statutory law.
Unless the said fact was independently established to the satisfaction of the
court, the grant of the property would be subject to the restrictions contained
therein, either by way of a transfer, gift or testamentary disposition. Learned
Counsel also distinguished the three cases cited by the learned Counsel for the
appellant that in each, the circumstances clearly indicated that the
testamentary disposition was in lieu of the right of maintenance of the female
Hindu. We think that this contention is well merited and needs to be
21. In Eramma v.
Verrupanna and Ors. [1966 (2) SCR 626] it was observed by this Court that mere
possession does not automatically attract Section 14 of the Act.
22. As noted above, no
issue was framed and also no evidence was led to substantiate the plea that the
appellant was occupying the premises in lieu of maintenance. In view of this
factual position and the proposition of law referred to above, inevitable
conclusion is that the appeal is without merit, deserves dismissal, which we
direct. No costs.
(Dr. ARIJIT PASAYAT)