Raghubar
Singh & Ors Vs. Gulab Singh & Ors [1998] INSC 328 (14 July 1998)
A.S.
Anand, V.N. Khare
Dr. A.S. Anand,J
ACT:
HEAD NOTE:
THE
14TH DAY OF JULY, 1998 Present:
Hon'ble
Dr. Justice A.S. Anand Hon'ble Mr. Justice V.N. Khare Pramod Swarup, Ms. Prerna
Swarup and Prashant Chaudhary, Adv., for the appellants. T.L.V. Iyer, Sr. Adv.,
S.S. Khanduja and B.K. Satija. Advs. with him for the respondents.
J U D
G E M E N T
The
following Judgment of the court was delivered:
An
answer to the question whether smt. Janak Dulari wife of Manraj Singh had any
pre-existing right in the suit land whether after the coming into force of the
Hindu succession Act, 1958 (hereinafter referred to us the Act) she became the
full or obsolute owner of that land, would determine the fate of this appeal by
special leave.
The
following table shows the relations to between the parties:- Subransingh
------------------------------------------------------------ Hakim singh Dashrath
Hukum singh singh Dhurandhur singh Manraj Khedu Dilraj Rabiraj Pancham Singh Singh
Singh Singh Singh =Janak =Kalawati Dulari Narbadia Osersingh Samsher Manpher
Singh. Raghubir singh & Ors.
(Defendant
No. 1)=Appellants Gulabsingh Jokhai Sheojorsingh (Pltiff.1) Singh (Pltff.3)
(Pltff.2) (Respondents) Manraj singh son of Dhurandhar singh and grandson of Hakimsingh
son of the common ancestor of the parties Subransingh, executed a will (Ex.D-5)
on 23.7.1946. He died on 27.8.1945. Manpher Singh son of Dashrath Singh son of
the common ancestor Subransingh filed a suit for cancellation of the will in
which Smt.Janak Dulari widow of Manraj Singh and her grandson Reguhvir Singh
(son of Narbadia) were both made parties. That suit ended in a compromise and a
decree was passed in terms of the compromise and a decree was passed in terms
of the compromise deed (ex-P-3) on 2.8.47. Clause Nos. 1 and 2 of the
compromise decree read as follows:-
"1.
That as till her life time as Hindu widow per terms of will dated 23.7.1946
executed by Manraj in favour of Raghubar Singh Mst. Janak Dulari will remain in
ownership and possession.
2.
That after the death of defendant Janak Dulari Pawai (Jagirdar) Britt, Pawai
55/45, except land which was received in partition by the father of Manraj
Singh, Dhurandher Singh all property moveable and immovable whole house will go
to the heirs of Maniraj singh, Defendant Raghubar Singh as owner and to his
heirs and legal representatives." Smt. Janak Dulari continued to remain in
possession of the suit property after the death of her husband Manraj Singh on
27.8.1946. She died on 3.11.1969. The respondents (sons of Samsher Singh son of
Dashrath Singh) herein, after the death of Smt. Janak Dulari, filed a suit for
possession of the suit land and mesne profits inter alia alleging that the land
in suit was ancestral Pawai land of Manraj Singh and on the death of Manraj singh,
Smt. Janak Dulari as his widow came into possession of the entire land. That Manraj
Singh had no son and as his only issue, a daughter by name Narbadia, according
to the law than in force in Rewa State (where the suit lands are situated)
could not inherit from her father, he (Manraj Singh) executed a will on 23.6.46
gifting the entire property, movable and immovable, to Raghubir singh
protecting the right of his wife Smt. Janak Dulari to enjoy the usufruct from
the land during her life time. It was also alleged that Janak Dulari had no
pre- existing right in the suit land and that the compromise decree (ex-P-3)
had created only life interest in her and, therefore, despite Section 14 of the
Hindu Succession Act, 1956, Smt. Janak Dulari, never became the full or
absolute owner of the suit property. According to plaintiffs (respondents
herein) they being the reversioners were entitled to possession as owners of
the land left by Manraj singh. They also questioned the validity of the sale
deeds executed by Smt. Janak Dulari in favour of defendant vendors on the
ground that sales had not been made for any legal necessity and, therefore, the
vendees acquired no valid title to the property purchased by them. The
plaintiffs further questioned the right of Raghubir singh to the property left
by Manraj Singh on various grounds. They also claimed certain amounts by way of
mesne profits but did not pursue that claim later on.
The
suit was contested. The defence on the part of the appellants (defendants) was
that Smt. janak Dulari had an inherent right of maintenance out of the estate
of Manraj Singh and that the compromise decree (ex-P-3) had conceded ownership
of the land to her in recognition of that right.
It was
claimed that Smt. Janak Dulari had become an absolute owner of that land by
virtue of Section 14(1) of the Act and was, therefore, fully competent to
transfer that land through sale deeds Exs. D-13 and D-14 and that those
alienations could not be challenged by the plaintiffs after her death. It was
further pleaded that after the death of Smt. janak Dulari, the land devolved on
Raghubir Singh in accordance with the terms of the will of Manraj Singh (Ex.D-
5) and, therefore, the right of Raghubir Singh over the suit property, as its
owner was beyond doubt. The right of the plaintiffs to claim ownership and
possession of the suit land was denied.
The
Trial Court framed a number of issues and ultimately after recording evidence
dismissed the suit. The Trial Court held that Smt. Janak Dulari had been given
life interest in the property of her husband through the will and that right
was her pre-existing right and after the coming into force of the Hindu
Succession Act in 1956, Smt. janak Dulari acquired absolute right over that
property and she had every right to sell that property. The Trial Court,
further held that since smt. Janak Dulari had got an absolute right over the
suit property in 1956, therefore, the question whether the transfer was made
for any legal necessity or not was irrelevant. The Trail court held that the
plaintiffs had failed to establish that they had any right or title over the
suit land. Aggrieved by the judgment and order of the Trial Court, the
respondents-plaintiffs filed Civil Appeal No. 58 of 1978 which was heard by the
First Additional District Judge. The appeal was allowed and the judgment and
decree of the Trial Court was set-aside and plaintiff's suit was decreed in
respect of certain portions of the suit land. The defendants were directed to
deliver vacant possession of agricultural holdings measuring about 32 acres in
village Baron, Tehsil Sirmaur, District Rewa to the plaintiffs. Aggrieved by
the judgment and decree of the First Additional District Judge in civil Appeal
No. 58 of 1978, the appellants filed a Second Appeal in the High Court of
Madhya Pradesh. A learned Single Judge of the High Court partly allowed the
appeal by setting aside plaintiffs suit in so far as it related to Khasra
numbers 549, 538/3525, 486 and 551/3527 but maintained the decree and judgment
made by the first appellate court in respect of remaining land. The High Court
held that Smt. Janak Dulari had only been allowed to remain in possession and
enjoy the property under the will (Ex.D-5) and that same right had been
reiterated by the compromise decree (ex-P-3) as well. That the said right was
not in lieu of any pre-existing right of maintenance. The High Court,
therefore, held that Smt. Janak Dulari never became full owner of the estate
and that her case was governed by sub-Section 14 of the Act. It was also held
that she was not competent to transfer any portion of the suit land by sale and
the transfers made by her therefore, did not bind the plaintiffs after her
death. The High Court accepted the plea of the plaintiff-respondents that under
the will the entire estate of the testator was to devolve on the legatee Raghuvir
singh and that no proprietory rights were ever created in favour of Mst. Janak Dulari
by the will and that she was only to remain in possession of the land and enjoy
the usufruct of the property during her life time.
The
High Court negatived the interpretation placed by the appellants on the terms
of the Will (Ex.D-5) as well as the compromise decree and rejected the plea
that Mst. Janak Dulari had acquired the property of her deceased husband in
lieu of her right of maintenance. According to the learned singh died, Smt. Janak
Dulari acquired no pre-existing right, which could mature into full ownership
after the coming into force of the Act in 1956. In the words of the learned
single Judge:
"I
am, therefore, of opinion that Janak Dulari was allowed to remain in possession
and enjoy the property under the will Ex.D-5 and that the same right was
reiterated by the compromise decree Ex.P/3 and not in lieu of any pre-existing
right of maintenance. That being so, she never became the full owner of the
estate and her case would be governed by sub-section (2) of Section 14 and not
by sub-section (1) thereof. She was, therefore, not competent to transfer the
lands to the appellants and those transfers, therefore, do not bind the
plaintiffs after the death of Janak Dulari." After holding that the civil
court had jurisdiction to try the suit and that the challenge made on the basis
of Section 37 of the V.P. Abolition of Jagirs and Land Reforms Act, 1952 could
not operate as a bar, the learned single Judge held that in the absence of any
allotment in plaintiff's favour, they could not lay any claim to the land
comprised in four khasra Nos. namely 549, 538/3525, 486 and 551/3527. The
second appeal was thus partly allowed and judgment and decree of the courts
below insofar as it related to Khasra No.549, 533/3525, 486 and 551/3527 was
set aside and the plaintiff-respondents suit relating to those Khasra numbers
was dismissed. The decree passed by the first appellate court regarding the
remaining part of the suit land was maintained. This appeal by special leave is
directed against the judgment and order of the learned Single Judge in Second
Appeal No. 402 of 1980 dated 20.1.1981.
We
have heard learned counsel for the parties and examined the record. Before
proceeding to consider the submissions made by learned counsel for the parties
at the benefit would be appropriate to fist notice the relevant terms of the
Will (Ex.D-5):
"Now
as I have grown old and cannot look after the household affairs property
therefore my whole property moveable and immovable Pawai (Jagirdari) Britta,
55/45 Kothar (state owned) and 55/45 tenancy Khata No. 320 under 320 and under
320 area 8.03, 6.14, 16.92 rental Rs. 25 as six, Rs. five as nine and Rs.56 as
six total areal 31.09 Area total rental Rs.87 as 5 with house gold silver,
gram, Bullock, Cow, Buffalow, labourer, trees mango, Mahuwa, Bair, Bamur, Jamun,
Kaitha, Imli etc. all property in my possession have given you all on condition
that you remain obedient to me and do service and homage to me and to my wife
and other members in my family till our death and after death perform Gaya Barahe
and remain in possession of property moveable and immovable from generation to
generation in case of need mortgage and sell. But till myself along with my
wife are alive we shall have full control over all our property moveable and
immovable.
After
demise of our lives you will have all power like ours in our property moveable
and immovable. I, therefore, execute this gift deed so that it may remain in
tact and may be helpful in case of need. The witnesses have put their signature
below and stamp of Rs.5/-No.4291 dated 23.7.1946 is attached Miti Sawan Badi II
Sambat 2003." Since, there is some dispute about the correct translation
of a material portion of the will, we reproduce that portion of the will in the
vernacular, the language in which the will was written:
"Jab
tak ham apney dharam patni Samet jiwit hain tab tak kul jaidad kula wa gair Mankula
men hamara pura Adhikar Kayam Rahega bad Khatama ham logon ki jindgi key tumhara
Adhikar Kul Jaidad Kula we gair mankula me hamarey Adhikar ki tarah par hoga
bas yeg Bakshishnamah likh diya ki sanad rahey wakata par kam Awey."
Clause (1) of the compromise decree (Ex.P.3.) dated 2.8.1947 reads:- "1.
That as till her life time as Hindu widow per terms of Will dated 23.7.1946
executed by Manraj in favour of Raghubar Singh Mst. Janak Dulari will remain in
ownership and possession." The main issue on which learned counsel for the
parties have addressed their arguments revolves around the interpretation of
Section 14 of the Act which reads:
"14.(1)
Any property possessed by a female Hindu, whether acquire 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.
(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 the learned Single Judge of the High Court, Smt. janak
Dulari was only allowed to remain in possession of and enjoy the property left
under the Will (Ex.D-5) during her life time and that the same position was
reiterated in the compromise decree (Ex.P-3) and therefore she had only a
restricted estate in that property. It was also held that the property had not
been bestowed on her in lieu of any pre-existing right of maintenance and that
her case was governed by Section 14(2) of the Act and not by Section 14(1) of
the Act. In taking this view, the High court appears to have been mainly
influenced by the fact that Hindu Women's Rights to Property Act, 1937 was not
in force in Rewa State in the year 1946, when Manraj Singh died and therefore Smt.
Jank Dulari could not be said to have acquired any pre-existing right over the
suit property in lieu of her right to maintenance, which right could ripen into
an absolute ownership after the coming into force of the Act in 1956 by Virtue
of Section 14(1) of the Act.
Before
considering the terms of the Will (Ex.D-5) and the compromise decree (Ex.P-3),
we consider it appropriate to first examine the question whether the right of
maintenance, as a pre-existing right of a Hindu widow, is traceable only to the
statutory provisions of the Hindu Women's Rights to Property Act, 1937 (which
admittedly was not in force in Rewa State in 1946 when Manraj Singh died) as
opined by the High court or does it flow from shastric Hindu law on account of
the incidence of marriage itself and that right received protection by the Act
in 1956 through Section 14(1) of the Act.
The
first question, requiring an answer, therefore, is:
"What
are the obligations of a Hindu husband towards the maintenance of his wife both
during his life time and after his death?' According to the old Shastric Hindu
Law, marriage between two Hindus is a sacrament - a religious ceremony which
results in a sacred and a wholly union of man and wife by virtue of which the
wife becomes a part and parcel of the body of the husband. She is, therefore,
called Ardhangani.
It is
on account of this status of a Hindu wife, under the Shastric Hindu law, that a
husband was held to be under a personal obligation to maintain his wife and
where he dies, possessed of properties, then his widow was entitled, as of
right, to be maintained out of those properties. The right of a Hindu widow to
be maintained out of the properties of her deceased husband is, thus, a
spiritual and moral right, which flows from the spiritual and temporal
relationship of husband and wife, though the right is available only so long as
the wife continues to remain chaste and does not remarry.
Mulla
in his classic work on "Hindu Law", 14th Edu., dealing with the
characteristic of the right of maintenance of a Hindu wife observes:- "A
wife is entitled to be maintained by her husband, whether he possesses property
or not. When a man with his eyes open marries a girl accustomed to a certain
style of living, he undertakes the obligation of maintaining her in that style.
The maintenance of a wife by her husband is a matter of personal obligation
arising from the very existence of the relationship, and quite independent of
the possession by the husband of any property, ancestral or self-
acquired." (Emphasis ours) May he in his Treatise on "Hindu Law and
Usage" 11th Edn., while tracing the history and origin of the right of
maintenance of a Hindu wife says:- "The maintenance of wife by her husband
is, of course, a matter of personal obligation, which attaches from the moment
of marriage." (emphasis ours) The obligations, under the Shastric Hinud
Law, to maintain a Hindu widow out of the properties of her deceased husband
received a statutory recognition with the coming into force of the Hindu
Women's Rights to Property Act, 1937. The law on the subject was, thereafter,
consolidated and codified by the Hindu Married Women's Right to Separate
Maintenance and Residence Act, 1946 which came into force on April 23, 1946. The right to maintenance of the
Hindu widow, as a pre-existing right, was thus recognised by the two statutes
referred to above but it was not created for the first time by any of those
statutes. Her right to maintenance existed under the Shastric Hindu Law long
before statutory enactments came into force. After the attainment of
independence, the need for emancipation of women from feudal bondage became
even more imperative.
There
was growing agitation by Hinud women for enlargement of their rights as
provided by the Shastric Hindu Law in various spheres. It was at this juncture
that the Parliament stepped in and exacted various statutes like the Hindu
Marriage Act, 1956, and the Hindu Succession Act, 1956 providing for intestate
succession.
The Hinud
Succession Act, 1956 made far reaching changes in the structure of Hindu law by
removing the traditional limitations on the powers of a Hindu widow to deal
with the property of her deceased husband, in her possession in lieu of her
right to maintenance and the Act made her an absolute owner of the property,
over which hitherto fore she had only a limited right.
A most
elaborate discussion about the rights of a female Hinud before and after the
coming into force of the Hindu succession Act, 1956 and particularly the
provisions of Section 14 of the Act, is contained in a three Judge Bench
judgment of this court in V Tulasamma and others vs. Sesha Reddy (Dead) by L.Rs.,
(1977) 3 SCC 99. dealing with the provisions of the Hindu Succession Act, 1956,
this Court in V.Tulasmma and other vs. Sesha Reddy (Dead) by L.Rs., (supra)
observed:- "The Act is a codifying enactment, and has made far-reaching
changes in the structure of the Hindu law of inheritance, and succession. The
Act confers upon Hindu females full rights of inheritance, and sweeps away the
traditional limitations on her powers of dispositions which were regarded under
the Hindu law as inherent in her estate......" Fazal Ali, J in his
exhaustive judgment, dealing with the question of the pre-existing right of a
Hindu widow laid down:
"Thus
on a careful consideration and detailed analysis of the authorities mentioned
above and the Shastric Hindu Law on the subject, the following propositions
emerge with respect to the incidents and characteristics of a Hindu woman's
right to maintenance:
(1) that
a Hindu woman's right to maintenance is a personal obligation so far as the
husband is concerned, and it si his duty to maintain her even if he has no
property. If the husband has property then the right of the widow to
maintenance becomes an equitable charge on his property and any person who
succeeds to the property carries with it the legal obligation to maintain the
widow;
(2)
though the widow's right to maintenance is not a right to property but it si
undoubtedly a pre-existing right in property, i.e. it is a jus ad rem not jus
in rem and it can be enforced by the widow wh can get a charge created for her
maintenance on the property either by an agreement or by obtaining a decree
from the civil court;
(3) that
the right of maintenance is a matter of moment and is of such importance that
even if the joint property is sold and the purchaser has notice of the widow's
right to maintenance, the purchaser is legally bound to provide for her
maintenance;
(4)
that the right to maintenance is undoubtedly a pre- existing right which
existed in the Hindu law long before the passing of the Act of 1937 or the Act
of 1946, and is, therefore, a pre- existing right; (Emphasis ours)
(5)
that the right to maintenance flows from the social and temporal relationship
between the husband and the wife by virtue of which the wife becomes a sort of
co-owner in the property of her husband, though her co-ownership is of a
subordinate nature; and
(6)
that where a Hindu widow is in possession of the property of her husband, she
is entitled to retain the possession in lieu of her maintenance unless the
person who succeeds to the property or purchases the same is in a position to
make due arrangements for her maintenance." Dealing with the scope of
Section 14 of the Act, the learned Judge opined that the provisions of the
Section must by liberally construed in order to advance the object of the Act,
which is "to enlarge the limited interest possessed by a Hindu widow"
in "consonance with the changing temper of the times" and observed:-
"that the Act of 1956 has made revolutionary and far-reaching changes in
the Hindu society and every attempt should be made to carry out the spirit of
the Act which has undoubtedly supplied a long-felt need and tried to do away
with the invidious distinction between a Hindu male and female in matters of
intestate succession;
The
learned Judge then interpreted Section 14 thus:
"1.
Section 14(1) and the Explanation thereto have been couched in the widest
possible terms and must be liberally construed in favour of the females so as
to advance the object of the 1956 Act and promote the socio- economic ends
sought to be achieved by this long-needed legislation.
2.
Sub-section (2) of Section 14 is in the nature of a proviso and has a field of
its own without interfering with the operation of Section 14(1) materially. The
proviso should not be construed in a manner so as to destroy the effect of the
main provision or the protection granted by Section 14(1) or in a way so as to
become totally inconsistent with the main provision.
3.
Sub-section (2) of Section 14 applies to instruments, decrees, awards, gifts,
etc. which create independent and new titles in favour of the females for the
first time and has no application where the instrument concerned merely seeks
to confirm, endorse, declare or recognise pre-existing rights.
In
such cases are stricted estate in favour of a female is legally permissible and
Section 14(1) will not operate in this sphere. Where, however, an instrument
merely declares or recognises a pre- existing right, such as a claim to
maintenance or partition or share to which the female is entitled, the
sub-section has absolutely no application and the female's limited interest
would automatically be enlarge into an absolute one by force of Section 14(1)
and the restrictions placed, if any, under the document would have to be
ignored. Thus where a property is allotted or transferred to a female in lieu
of maintenance or a share at partition, the instrument is taken out of the
ambit of sub-section (2) and would be governed by Section 14(1) despite any
restrictions placed on the powers of the transferee.
4. The
use of express terms like 'property acquire by a female Hindu at a partition',
'or in lieu or maintenance', 'or arrears of maintenance', etc. in the
Explanation to Section 14(1) cleraly makes sub-section (2) inapplicable to
these categories which have been expressly excepted from the operation of
sub-section (2)." The judgment in Tulasamma's case has held the field till
date (See also with advantage: Ram Kali(Smt.) vs. Choudhri Ajit Shankar and
others, 1997 (9) SCC 613 and Bhoomireddy Chenna Reddy and another vs. Bhoospalli
Pedda Verrapa (Dead) by L.Rs. and another 1997(10) SCC 673).
Thus,
we find that there is enough authority for the proposition that the right to
maintenance of a Hindu female is a pre-existing right, which existed in the
Hindu Law long before the Act of 1937 or the Act of 1946 came into force and is
not a creation of those statutes, which only recognised that position. In the
words of Fazal Ali, J. in Tulasamma's case (supra):
"The
Hindu female's right to maintenance is not any empty formality or an illusory
claim being conceded as a matter of grace and generosity, but is a tangible
right against property which flows from the spiritual relationship between the
husband and the wife and is recognised and enjoined by pure Shastric Hindu Law
and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya
to Manu. Such a right may not be a right to property but it is a right against
property and the husband has a personal obligation to maintain his wife and if
he or the family has property, the female has the legal right to be maintained therefrom.
If a charge is created for the maintenance of a female, the said right becomes
a legally enforceable one. At any rate, even without a charge the claim for maintenance
is doubtless a pre-existing right so that any transfer declaring or recognising
such a right does not confer any new title but merely endorses or confirms the
pre- existing rights.
Accordingly,
we hold that the right to maintenance of a Hindu female flows from the social
and temporal relationship between the husband and the wife and that right in
the case f a widow is "a pre-existing right", which existed under the
Shastric Hindu Law long before the passing of the 1937 or the 1946 Acts. Those
acts merely recognised the position as was existing under the Shastric Hindu
Law and gave it a "statutory" backing. Where a Hindu widow is in
possession of the property of her husband, she has a right to be maintained out
of it and she is entitled to retain the possession of that property in lieu of
her right to maintenance.
Explaining
the meaning of the expression "possessed" as used by the legislature
in Section 14(1) of the 1956 Act in Tulasamma's case (supra) this court held:
"The
words 'possessed by' used by the Legislature in Section 14(1) are of the widest
possible amplitude and include the state of owning a property even though the
owner is not in actual or physical possession of the same. Thus, where a widow
gets a share in the property under a preliminary decree before or at the time
when the 1956 act had been passed but had not been given actual possession
under a final decree, the property would be deemed to be possessed by her and
by force of Section 14(1) she would get absolute interest in the property. It
is equally well settled that the possession of the widow, however, must be
under some vestige of a claim, right or title, because the section does not
contemplate the possession of any rank trespasser without any right or
title." (Emphasis supplied) It is by force of Section 14(1) of the Act,
that the widow's limited interest gets automatically enlarged into an absolute
right notwithstanding any restriction placed under the document or the
instrument. So far as sub-section (2) of Section 14 is concerned, it applies to
instruments, decrees, awards, gifts etc., which create an independent or a new
title in favour of the female for the first time. It has no application to
cases where the instrument/document either declares or recognises or confirms
her share in the property or her "pre-existing right to maintenance"
out of that property. As held in Tulasamma's case (supra), sub-section (2) of
Section 14 is in the nature of a proviso and has a field of its own, without
interfering with the operation of Section 14(1) of the Act.
Having
examined the legal position, let us now advert to the salient facts of a the
present case.
The
suit filed by Manpher Singh against Smt. Janak Dulari and Raghubar Singh,
questioning the validity of the will executed by Manraj Singh on 23.6.(7).1946
and seeking the cancellation of the said will ended in a compromise decree
dated 2.8.1947. Manraj Singh died on 27.8.1946. Smt. Janak Dulari died on
3.11.1969 and admittedly till her death she was in rightful possession of the
suit property which position was duly recognised in the compromise decree also.
The
case set up by the plaintiff in the subsequent suit out of which the present
appeal arises, as already noticed, was that Smt. janak dulari had no
pre-existing right to the suit land but only a restricted right under the Will
and that the compromise decree only created a life interest in her favour for
the first time and therefore Smt. Janak dulari never became full or absolute
owner of the property in dispute even after the coming into force of the 1956
Act and as such after her death, the plaintiffs became entitled to possession
of the suit property, being reversioners of Manraj Singh. According to them her
case was governed by Section 14 (2) of the Act. The case of the defendants on
the other hand was that in the will itself, it was recognised that smt. Janak Dulari
would remain in possession of the suit property as its owner and this position
was accepted in the compromise decree as well and as such her "ownership
and possession" of suit property was protected by Section 14(1) of the
Act. While dismissing the suit, the Trial Court opined that Smt. Janak Dulari
had become an absolute owner of the suit property by virtue of Section 14(1) of
the Hindu succession Act and, therefore she could legitimately alienate the
property in favour of the defendants and that plaintiffs could make no
challenge to it after her death.
Learned
counsel for the parties have reiterated the stand of their respective clients
before us also. With a view to appreciate the rival stand of the parties, it is
appropriate to find out the intention of the testator when he executed the Will
on 23.6.(7).1946 and the effect of the compromise decree.
We
have referred to the relevant clauses of the Will as also clauses 1 and 2 of
the Compromise Decree in an earlier part of this judgment. A careful reading of
the Will shows that the testator clearly declared his intention to the effect
that the "right and control" over the suit property shall vest in Raghuvir
Singh after the demise of the testator and his wife and that during the life
time of either of them, the "right, control and ownership" of the
property would remain with the survivor. This position emerges quite clearly
from the vernacular portion of the Will which has been referred to in an
earlier part of this judgment. A free english translation of that vernacular
portion would read:
".........Till
such time as myself and my wife remain alive and till then we shall have full
right, control and ownership of the entire property but after the death of both
of us all those movable and immovable properties which vest in myself and my
wife would devolve on Raghuvir Singh like they vest in us".
(Emphasis
ours) It is, thus, clear from a reading of the above portion of the Will, that Manraj
Singh and Janak dulari were to retain all their rights and control over the
property as owners thereof till their death and all those rights which they had
over the suit property, were to later on devolve upon Raghuvir Singh after
their death. Raghuvir Singh was to acquire only such "rights" and
"control" over the suit property, which the testator and his wife Smt.
Janak Dulari themselves had in respect of the suit property during their life
time. It si an admitted case of the parties that Smt. Janak Dulari had the
"possession and control" of the suit property after the death of her
husband and in terms of the Will that right and control was by virtue of the
recognition of her "ownership" of the suit property. Even if it be
assumed for the sake of argument, (though the intention of the testator was
clearly otherwise) that the "right" which Smt. Janak dulari had under
the Will, was to remain in possession of the property during her life time only
and enjoy the property as well as its usufruct only during her life time, her
limited estate ripened into full ownership by virtue of the coming into force
of the Hindu succession Act.
Admittedly
she had continued to remain in possession of the property till her death in
1969, long after the coming into force of the Act in 1956. On a proper
construction of the Will, we hold that the use of the expression "till
myself along with my wife are alive we shall have full control over all our
property movable and immovable" as owners unmistakably shows that the rights
which Smt. Janak Dulari was declared to possess during her life time were the
same as those of the testator himself and that she was to remain in "full
control over all the property movable and immovable" during her life time
as an owner of the property.
After
the death of her husband, she continued to remain in possession of the suit
property as its owner and she had full right and control over the same. Clause
1 of the Compromise Deed filed in the suit filed by Manpher Singh which reads: per
terms of Will dated 23.7.1946 executed by Manraj in favour of Raghubar Singh Mst.
Janak Dulari will remain in ownership and possession." (Emphasis ours)
lends support to the interpretation which we have placed on the Will. It recognises
her right to remain in "ownership and possession" of the suit
property. The terms of the Will and the compromise decree thus unmistakably show
that Smt. Janak Dulari had the "ownership and possession of the suit
property" till her death and (even if it be assumed to be her "limited
estate", for the sake of argument) it ripened into full ownership by
virtue of Section 14(1) of the Act.
The
impugned judgment of the learned single judge of the High court suffers from a
misconception about the nature of the "pre-existing right" of a Hindu
widow. The opinion of the learned single that there could be no
"pre-existing right" vesting in Smt. Janak Dulari because of the non-
applicability of the 1937 Act in Rewa
State is clearly erroneous. Her right to
maintenance existed under the Shastric Hindu Law and was not created by the
1937 or 1946 Acts. Those Acts merely gave statutory backing to her existing
rights.
The
High Court also fell in error in holding that the case of Smt. Janak Dulari was
covered by Section 14(2) of the Act and not by Section 14(1) of the Act. The
'Will' as already noticed declared and the Compromise decree recognised the
right of Smt. Janak Dulari as an "owner in possession" of the suit
property with all the "rights and control" over it. The compromise
decree did not create any independent or new title in her favour for the first
time.
Sub-section
(2) of Section 14, thus has no application to her case. By virtue of
sub-section (1) of Section 14, the limited interest (even if it be assumed for
the sake of argument that Smt. Janak Dulari had only a limited interest in the
property of which she was in possession as an owner) automatically got enlarged
into an absolute one, her case was clearly covered by Section 14(1) of the Act.
The
impugned judgment of the High Court thus cannot be sustained. This appeal,
therefore, succeeds and is allowed.
The
judgment and decree of the High Court is set-aside and that of the Trial Court
restored. The parties are however directed to bear their own costs.
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