Full Judgment Text
*IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of decision: 18 July, 2014
+ CS(OS) 1771/2012, IAs No.11180/2012 (u/O 39 R-1&2 CPC),
17219/2012 ( of the defendant no.2 u/O 39 R-4 r/w 151 CPC) &
17220/2012 (of the defendant no.2 u/S 151 CPC)
MAHIMA AND ORS ..... Plaintiffs
Through: Ms. Maninder Acharya, Sr. Adv. with
Mr. S.N. Khanna, Adv.
Versus
DDA & ANR ..... Defendants
Through: Ms. Alpana Pandey, Adv. for D-1.
Mr. D.K. Sharma, Adv. for D-2.
CORAM :-
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The three plaintiffs have instituted this suit for the reliefs of,
(i) declaration that they are the absolute owners of MIG Flat No. AD-21-C
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Pitam Pura, New Delhi under the Family Settlement dated 29 November, 2006
executed by the plaintiff no.1 and the defendant no.2 Shri Anil Arora;
(ii) mandatory injunction directing the defendant no.1 DDA to mutate the said
flat from the name of the defendant no.2 Sh. Anil Arora to the name of the
plaintiffs; (iii) mandatory injunction directing the defendant no.2 to handover to
the plaintiffs all the requisite documents pertaining to the said flat; and, (iv)
CS(OS) 1771/2012 Page 1 of 39
permanent injunction restraining the defendant no.2 from creating any third
party interest in the said flat, pleading:-
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(a) that the plaintiff no.1 was married to the defendant no.2 on 22
January, 1987 and out of the said wedlock the plaintiffs no.2&3
Udita Arora and Pulkita Arora were born;
(b) that the plaintiff no.1 and the defendant no.2 were involved in
numerous litigations and after a long standing litigation in various
courts of law, the plaintiff no.1 and the defendant no.2 agreed to
settle all their disputes amicably out of Court and accordingly the
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Family Settlement dated 29 November, 2006 supra was executed
between plaintiff no.1 acting for herself and on behalf of the minor
plaintiff no.3, plaintiff no.2 and defendant no.2;
(c) that the primary reason for execution of the said Family Settlement
was to take care of the pre-existing right of maintenance and up-
bringing, residence, marriage expenses of the plaintiffs who were
in possession of the said flat since much prior to the execution of
the Family Settlement;
CS(OS) 1771/2012 Page 2 of 39
(d) that after the execution of the said Family Settlement, the plaintiff
no.1 as per the terms thereof consented for a decree of divorce by
mutual consent and the marriage of the plaintiff no.1 and the
defendant no.2 was dissolved by a decree of dissolution of
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marriage by mutual consent dated 19 December, 2006;
(e) that the said flat had been originally allotted by the defendant no.1
DDA to one Shri Om Parkash and had changed hands from time to
time and at the time of the execution of the Family Settlement the
defendant no.2 was the owner thereof on the basis of registered
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GPA and Will dated 26 September, 1995;
(f) that under the aforesaid Family Settlement, the defendant no.2
gave the plaintiffs lifetime interest of residence in the aforesaid flat
owned by him; the said lifetime interest of residence was in lieu of
all existing present and future rights of the plaintiffs as to their
residence, maintenance and marriage expenses;
(g) that as per the mandate and force of Section 14(1) of the Hindu
Succession Act, 1956, the plaintiffs have become the sole and
absolute owners of the said flat;
CS(OS) 1771/2012 Page 3 of 39
(h) that the defendant no.2 had in the year remarried and his second
wife was claiming that the defendant no.2 had executed a Will of
the said flat in her favour;
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(i) that the plaintiffs on 26 April, 2011 approached the defendant
no.1 DDA for converting the leasehold rights in the said flat into
freehold in favour of the plaintiffs and also deposited a bank draft
for Rs.59,200/- towards conversion charges; and,
(j) however the defendant no.1 DDA had refused such conversion
owing to non-submission by the plaintiffs of complete chain of
GPAs and Agreement to Sell.
2. Summons of the suit and notice of the application for interim relief were
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issued to the defendants and vide ex parte ad interim order dated 1 June, 2012
the defendant no.2 was restrained from transferring, encumbering or selling the
said flat or any part thereof and/or from making any additions, alterations
thereto.
3. The defendant no.1 DDA has contested the suit by filing a written
statement inter alia on the ground that since the plaintiffs had not submitted the
complete documents and not deposited the conversion fee and also not
CS(OS) 1771/2012 Page 4 of 39
submitted the complete chain of GPAs and Agreement to Sell, hence the
conversion case was still pending for want of compliance on behalf of the
plaintiffs.
4. The defendant no.2 has also contested the suit by filing a written
statement inter alia on the grounds:-
(a) that the suit had been filed to curtail the probable rights of his
newly born child from the second marriage;
(b) that the Family Settlement does not give any ownership rights in
the flat to the plaintiffs;
(c) that the claim of the plaintiffs before the defendant no.1 DDA for
conversion of the leasehold rights in the flat into freehold in the
name of the plaintiffs had been rightly rejected;
(d) that the plaintiffs want to grab the property;
(e) denying that the plaintiffs were in possession of the said flat prior
to the execution of the Family Settlement and pleading that it was
the defendant no.2 who was in possession of the said flat as owner
CS(OS) 1771/2012 Page 5 of 39
thereof and the plaintiffs were residing with him as wife and
children;
(f) that as per the terms of the Family Settlement the rights of the
plaintiffs in the said flat are restricted;
(g) that the plaintiff no.1 is employed with the Income Tax
Department and earning a handsome salary;
(h) the question of applicability of Section 14(1) of the Hindu
Succession Act did not arise as the defendant no.2 who is the
owner of the flat is still alive; and,
(i) that the plaintiffs have no rights to the said flat except in terms of
the Family Settlement.
5. Though replications have been filed by the plaintiffs but need is not felt
to refer thereto.
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6. The suit was listed on 20 March, 2014 for framing of issues and for
hearing on the application for interim relief when attention of the counsel for
the plaintiffs was invited to Section 14 (2) of the Hindu Succession Act and it
was enquired whether not the plaintiffs, having come into use and occupation
CS(OS) 1771/2012 Page 6 of 39
of the said flat on the terms contained in the Memorandum of Family
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Settlement dated 29 November, 2006, were disentitled from asserting any
other rights in the said flat and whether not the plaintiffs could at best restrain
the defendant no.2 from acting in contravention thereof.
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7. The counsel for the defendant no.2 on 20 March, 2014 stated that the
defendant no.2 is willing to abide by the said Memorandum of Family
Settlement and shall not sell / transfer / encumber the said flat till either of the
three plaintiffs have a right of residence therein and shall not disturb the
possession, use and enjoyment of the plaintiffs of the said flat and shall not do
any other thing prejudicial to the rights of the plaintiffs under the said
Memorandum of Family Settlement.
8. On request of the counsels opportunity of hearing was granted. The
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counsels were thereafter heard on 26 March, 2014 and 2 April, 2014.
9. Section 14 of the Hindu Succession Act on which the claim of the
plaintiffs is premised is as under:-
“ 14. Property of a female Hindu to be her absolute
property
(1) Any property possessed by a Female Hindu,
whether acquired before or after the commencement of
CS(OS) 1771/2012 Page 7 of 39
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.”
10. While it is the case of the plaintiffs that they have become the full
owners of the said flat under Sub-Section (1) supra, it is the case of the
defendant no.2 that the rights of the plaintiffs in the said flat are under the
Memorandum of Family Settlement and thus under Sub-Section (2) supra
remain unaffected by the provisions of Sub-Section (1).
11. For proper appreciation of the aforesaid aspect, it is appropriate to
reproduce in entirety herein below the Memorandum of Family Settlement:-
CS(OS) 1771/2012 Page 8 of 39
“ MEMORANDUM OF FAMILY SETTLEMENT
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This Memorandum of Settlement is executed on 29 day of
November, 2006 amongst:
i) Anil Arora S/o Sh. H.L. Arora,
R/o AD-29-A, Pitampura, Delhi -110088
(Party of the First Part)
ii) Smt. Mahima Arora W/o Sh. Anil Arora
(Party of the Second Part)
iii) Ms. Udita Arora D/o Sh. Anil Arora
(Party of the Third Part)
iv) Pulkita Arora D/o Sh. Anil Arora (Minor)
through her mother Mahima Arora and natural guardian
(Party of the Fourth Part)
(Party No.(ii) to (iv) resident of AD-21-C, Pitampura, Delhi-
110088.
The expression First Party, Second Party, Third Party and
Fourth Party unless context means otherwise, shall mean and
include their heirs, representatives, successors, assigns etc.
WHEREAS the litigation between Party of the First Part
and Party of the Second Part are going on in different Courts and
now they have decided to settle the disputes between them and to
take the divorce by mutual consent between Mahima Arora and
Anil Arora.
AND WHEREAS the First Party and the Second Party were
married to each other according to Hindu Rites and Ceremonies
on 22.01.1987 in Delhi.
AND WHEREAS Ms. Udita Arora and Ms. Pulkita Arora
were born from the said wedlock and Pulkita Arora is minor.
AND WHEREAS the differences arose between the parties
and following litigations were pending between First Party and
Second Party.
CS(OS) 1771/2012 Page 9 of 39
1. Divorce Petition pending before Ms. Anju Bajaj Chandna,
ADJ, Delhi.
2. Case Under Section 406/498 IPC pending in the Court of
M.M. Shalimar Bagh, Delhi.
3. Revision Petition pending in the Court of Sh. Yogesh
Khanna, ADJ, Delhi.
4. Petition for Permanent Injunction pending in the Court of
Sh. D.K. Sharma, CJ, Delhi.
AND WHEREAS the parties desire to settle the matter and
to end the differences and continue with their lives peacefully and
without any interference from other party.
AND WHEREAS in order to arrive at just and reasonable
settlement it was necessary to make arrangement for the residence
and maintenance of and Third & Fourth Party.
AND WHEREAS the First, Second and Third Party (Second
Party for self and for Fourth Party) have reached a settlement /
arrangement to settle all their disputes and differences on
28.11.2006.
AND WHEREAS it was found necessary and expedient to
record the terms of settlement to avoid any further or future
disputes.
NOW THIS MEMORANDUM OF FAMILY
SETTLEMENT WITNESSESTH AS UNDER
1. That the First Party is the absolute owner of the second
Floor bearing No.AD-21-C, Pitampura, Delhi-110088 and also
the Third Floor, built-up on the roof of the Second Floor. The
Party of the First Part allows exclusively the Party of the Second
Part by creating life interest of residence and further the Third &
Fourth Party to live in the property at Second Floor only till their
marriages and use the same for their residential purpose only
subject to further following restrictions.
a) That the Third & Fourth Party shall cease to have any right
of residence in the said property after their marriage and
CS(OS) 1771/2012 Page 10 of 39
they will not claim any interest, right and title in the
property whatsoever.
b) That the Second Party also shall cease to have any right of
residence in the entire portion of the property, if she re-
marries or resides at any other place.
c) That the Party of the Second Part can let out for residence
purpose only the Third Floor to any tenant in accordance
with law & rules of any authority, user of the rental income
shall be restricted to Rs.3000/- by herself for the welfare
Third & Fourth Party and over the above Rs.3000/- shall be
deposited in a Bank Account in the name of the Third Party
and Fourth Party and shall be used for their marriage. The
copy of the Rent / Lease Agreements containing occupation,
place of working and the permanent address of every tenant
will be supplied to the Party of the First Part. The Party of
the Second Part is not entitled to let out the Second Floor to
anyone at any point of time whatever the reason may be and
will use the Second Floor as a residence for herself and
daughters namely Udita and Pulkita only. After the
marriage of Udita and Pulkita the rent of the Third Floor
will be recovered from the tenant by the First Party without
any interruption from the side of Second Party, Third &
Fourth Party.
d) That the Party of the First Part will be having the visiting
rights to the Third & Fourth Party once in a month.
e) That the Party of the Second Part will maintain and keep the
Second & Third Floor in accordance with DDA & MCD
Rules & Regulations. They will also pay the House Tax and
Charges of all amenities i.e. water and electricity and keep
the Second and Third Floor in intact and habitable
condition.
2. That the Party of the First Part has assured the other
parties that the Property is free from all encumbrances and he will
not create any Third Party interest and will not mortgage the
property to anyone. Subject to Clause 1 (c) the Second Party will
CS(OS) 1771/2012 Page 11 of 39
not hand over any part of the Flat (Second and Third Floor) to
anyone under any circumstances illegally.
3. That all the claims in respect of any nature whatsoever of
the parties interse themselves i.e. First Party, Second Party (for
self and on behalf of Fourth Party) and Third Party stand settled
and none of the parties shall claim whatsoever anything in future
from the other party and Second Party shall execute documents in
future, if required, for the any other purpose whatsoever the First
and Second Party had signed jointly.
4. That the Party of the First Part and Second Part have
agreed to get their marriage dissolved by mutual consent and
signed all the divorce papers / proceedings (First & Second
Motion) also record their statements in the Court.
5. That the Second Party will co-operate to the First Party to
sign the papers i.e. for closing the Joint Accounts, Lockers etc.
6. That the First Party and Second Party undertake to
withdraw or cause to withdraw all their cases civil / criminal /
complaints against each other pending in different courts and the
Second Party will co-operate to appear before the Hon’ble High
Court for quashing of the FIR. The cases will be withdrawn after
Second Motion will be recorded.
7. That the children shall remain in the custody of the Second
Party.
8. That no party shall claim any right in future over any
properties of each other even received by inheritance.
9. That present settlement is in lieu of all the existing present
and future rights of the Second, Third and Fourth Party as to their
residence, maintenance and marriage expenses etc. The Second,
Third and Fourth Party are already in the possession of the
property No.AD-21-C, Pitampura, Delhi-110 088.
10. That the settlement has been arrived without any coercion,
pressure or threat.
11. That the Second Party has no interest adverse to any
interest of Fourth Party.
CS(OS) 1771/2012 Page 12 of 39
IN WITNESS WHEREOF the First, Second (for herself and
on behalf of the Fourth Party) & Third Party have put their hands
unto this Memorandum of Understanding in the presence of the
Witnesses on this day, month and year as mentioned hereinabove:-
WITNESSES:
Sd/-
1. Sd/- 1. PARTY OF THE FIRST PART
Sd/-
2. Sd/- 2. PARTY OF THE SECOND PART
(FOR HERSELF & ON BEHALF
OF THE FOURTH PARTY)
Sd/-
3. PARTY OF THE THIRD PART”
12. The plaintiffs have also filed before this Court a copy of the judgment
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dated 19 December, 2006 of the Court of the Additional District Judge
passing a decree of dissolution of marriage of the plaintiff no.1 with the
defendant no.2 by way of mutual consent under Section 13B(2) of the Hindu
Marriage Act, 1955 and which inter alia records “Parties have mutually and
amicably settled all the issues on the terms and conditions set out in the
petition. Both the parties have undertaken to abide by the terms and
conditions of settlement so incorporated in the Memorandum of Family
Settlement dated 29.11.06 which is Exhibit C-1…..The parties undertake and
CS(OS) 1771/2012 Page 13 of 39
assure each other that they would not file any claim, petition, complaint and
/ or any other proceedings against each other in any courts of law.”
13. The counsel for the plaintiffs during the hearing informed that at the time
of execution of the deed aforesaid of Family Settlement, a petition filed by the
plaintiffs no.1&2 under Sections 24 & 26 of the Hindu Marriage Act for
maintenance was also pending consideration.
14. It is also not in dispute that the aforesaid Memorandum of Family
Settlement was acted upon as recorded therein.
15. The senior counsel for the plaintiffs, to support the plea of the plaintiffs,
of the plaintiffs under Section 14(1) of the Hindu Succession Act having
become the owners of the flat, has placed reliance on (a) Gadam Reddayya Vs.
Varapula Venkataraju AIR 1965 AP 66 (DB); (b) Seth Badri Prasad Vs.
Srimati Kanso Devi 1969 (2) SCC 586; (c) V. Tulasamma Vs. Sesha Reddy
(1977) 3 SCC 99; (d) Gulwant Kaur Vs. Mohinder Singh (1987) 3 SCC 674;
(e) Mangat Mal Vs. Punni Devi (1995) 6 SCC 88; (f) Jose Vs. Ramakrishnan
Nair AIR 2004 Kerala 16; and, (g) M. Jana Bai Vs. M. Govardhanagiri Naidu
@ M.G. Giri AIR 2007 Karnataka 140.
CS(OS) 1771/2012 Page 14 of 39
16. Per contra, the counsel for the defendant no.2 in support of applicability
of Section 14(2) of the Hindu Succession Act has referred to Rao Raja Tej
Singh Vs. Hastimal AIR 1972 Rajasthan 191 and Kothi Satyanarayana Vs.
Galla Sithayya (1986) 4 SCC 760.
17. The senior counsel for the plaintiffs has further contended that:-
A. that the aforesaid flat is possessed by the three plaintiffs who are
female Hindus ;
B. that the aforesaid flat was acquired by the three plaintiffs under the
Memorandum of Family Settlement aforesaid in lieu of their claim
for maintenance or arrears of maintenance against the defendant
no.2;
C. that notwithstanding anything to the contrary contained in the
Memorandum of Family Settlement, the plaintiffs have under Sub-
Section (1) of Section 14 become the full owners of the said flat
and are not the limited owners in terms of the Memorandum of
Family Settlement;
CS(OS) 1771/2012 Page 15 of 39
D. that the facts of the present case are identical to the facts in Gadam
Reddayya (supra) and which was approved by the Supreme Court
in para 39 of V. Tulasamma supra;
E. Attention is invited to Section 25 of the Hindu Marriage Act and to
Section 20 of the Hindu Adoptions and Maintenance Act, 1956 to
support the plea that the plaintiff no.1 wife and the plaintiffs
no.2&3 children had a right / claim for maintenance against the
defendant no.2 and it is contended that the same was a pre-existing
right; and,
F. in response to a Court query it is stated that there is no difference
between a right of maintenance and a right of residence.
18. Per contra the counsel for the defendant no.2 argued:-
I. that the proceedings for maintenance were only by the plaintiffs
no.2&3 and not by the plaintiff no.1 who was employed and
earning handsomely;
CS(OS) 1771/2012 Page 16 of 39
II. that the plaintiff no.1 at the time of execution of the Memorandum
of Family Settlement had no right of residence against the
defendant no.2;
III. that the defendant no.2 has never admitted any right of any of the
plaintiffs for maintenance against the defendant no.2.
19. I have considered the rival contentions.
20. I must admit that the query as posed by me to the counsel for the
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plaintiffs on 20 March, 2014 was on an understanding of Section 14 (supra)
to the effect that Sub-Section (1) thereof applies only when the possession of
a female Hindu of the property is by operation of law and that Sub-Section
(2) thereof applies when the acquisition of property by a female Hindu is
under an instrument. It was further my understanding that the possession of
the plaintiffs of the subject flat was under the Memorandum of Family
Settlement which is an instrument and in terms of which the order of
dissolution of marriage of the plaintiff no.1 with the defendant no.2 was
passed by the Court of competent jurisdiction and thus Sub-Section (2)
would apply.
CS(OS) 1771/2012 Page 17 of 39
21. However I find that the Division Bench of the Andhra Pradesh High
Court in Gadam Reddayya (supra) was concerned with a settlement deed
between mother and son, whereunder the mother was given certain land
during her lifetime with right to raise the crops and enjoy the fruits but with
prohibition of contracting any debts on the security of the said lands and
dealing with an argument that such a settlement deed is an instrument as
envisaged by Sub-Section (2) of Section 14, held; i) that Sub-Section (2)
comes into effect only in cases where a new right is created with certain
restrictions and conditions and can have no application to cases of
recognition of existing rights; ii) the mother had a right to be maintained by
the son out of the estate; iii) it is pursuant to that right that her claim for
maintenance was settled vide settlement deed and in lieu whereof she gave
up her other claims; iv) that the settlement deed merely recognized the pre-
existing right of the mother to maintenance; v) that no new right was
conferred under the settlement deed on the mother; vi) the restrictions in the
settlement deed merely set out the legal effect on her estate as maintenance
holder and was akin to a life estate, with the mother being entitled to enjoy
the land in lieu of maintenance and thus held the case to be falling outside
CS(OS) 1771/2012 Page 18 of 39
the scope of Sub-Section (2) and being governed by Sub-Section (1) of
Section 14.
22. Similarly, the Supreme Court in Seth Badri Prasad (supra) was
concerned with an arbitration award between the widow and sons of the
deceased owner of the properties and made rule of the Court and under
which the widow was given widow’s estate in some of the properties and
dealing with the contention of the widow having acquired the said properties
under the arbitration award and the decree of the Court, Sub-Section (1)
would be inapplicable, held; i) the critical words in Sub-Section (1) are
“possessed” and “acquired”; ii) the word “possessed” has been used in its
widest connotation and possession may be either actual or constructive or in
any form recognized by law; iii) the word “acquired” in Sub-Section (1) has
also to be given the widest possible meaning owing to the language of the
Explanation to Sub-Section (1) which makes Sub-Section (1) applicable to
acquisition of property by inheritance or devise or at a partition or in lieu of
maintenance or arrears of maintenance or by gift etc.; iv) Sub-Section (2) of
Section 14 is more in the nature of a proviso or an exception to Sub-Section
(1); v) that the object of Section 14 is only to remove the disability on
women imposed by law and not to interfere with contracts, grants or decrees
CS(OS) 1771/2012 Page 19 of 39
etc. by virtue of which a women’s right was restricted; vi) the mere fact that
there was a partition by means of arbitration which resulted in an award and
a decree based on it did not bring the matter within Sub-Section (2) as the
provisions of Sub-Section (1) became fully applicable particularly in view of
the express terms of the Explanation.
23. That brings me to V. Tulasamma (supra). In that case also, a widow
had filed a petition for maintenance against the step brother of her husband
and with whom the said husband was in a state of jointness. An ex parte
decree for maintenance was passed and in execution thereof a compromise
was arrived at under which the widow was allotted certain properties but
was to enjoy a limited interest therein with no power at all of alienation. It
was further provided that on the death of the widow, the properties would
revert to the step brother of her husband. The Supreme Court held; i) that a
Hindu woman’s right to maintenance is a personal obligation so far as the
husband is concerned and 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; ii) a widow’s right to maintenance, though not a right
to property, is undoubtedly a pre-existing right in property which can be
CS(OS) 1771/2012 Page 20 of 39
enforced by the widow who can get a charge created for her maintenance on
the property either by an agreement or by obtaining a decree from the Civil
Court; iii) that the provisions of Section 14 must be liberally construed in
order to advance the object of the Act which is to enlarge the limited interest
possessed by a Hindu widow which was in consonance with the changing
temper of the times; iv) it is manifestly clear that Sub-Section (2) of Section
14 does not refer to any transfer which merely recognizes a pre-existing
right without creating or conferring a new title on the widow; v) the Hindu
Succession Act 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; v) Sub-Section (2) of Section 14 is merely a proviso to Sub-Section (1)
and has to be interpreted as a proviso and not in a manner so as to destroy
the effect of the main provision; vi) that a widow’s claim to maintenance is
undoubtedly a tangible right though not an absolute right to property so as to
become a fresh source of title; vii) that by virtue of the Hindu Women's
Right to Property Act, 1937, the claim of the widow to maintenance has
been crystallized into a full fledged right and any property allotted to her in
lieu of maintenance becomes property to which she has a limited interest
which by virtue of provisions of Section 14 is enlarged into an absolute title;
CS(OS) 1771/2012 Page 21 of 39
viii) Section 14(2) applies only to cases where grant is not in lieu of
maintenance or in recognition of pre-existing rights but confers a fresh right
or title for the first time and while conferring the said title certain restrictions
are placed by the grant or transfer. Where however the grant is merely in
recognition or in implementation of a pre-existing right to claim
maintenance, the case falls beyond the purview of Section 14(2) and comes
squarely within the Explanation to Section 14 (1); ix) Gadam Reddayya
(supra) was noticed and expressly approved; x) a Hindu female’s right of
maintenance is not an 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 recognized and enjoined by pure Shastric Hindu Law and has
been strongly stressed even by the earlier Hindu jurists starting from
Yajnavalkya to Manu.
24. All the aforesaid judgments pertained to cases where the female had
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come into possession of the property prior to the coming into force on 17
June, 1956 of the Hindu Succession Act. I thus enquired from the senior
counsel for the plaintiffs, whether the position would be any different if the
female came into possession of the property after the coming into force of
CS(OS) 1771/2012 Page 22 of 39
the Hindu Succession Act. The senior counsel for the plaintiffs drew
attention to Gulwant Kaur (supra) where the female came into possession of
the property after the coming into force of the Hindu Succession Act, but the
same view, as in the aforesaid judgments, was followed and it was observed
that the very right to receive maintenance is sufficient title to enable the
ripening of possession into full ownership if the female is in possession of
the property in lieu of maintenance.
25. Mangat Mal , Jose & M. Jana Bai (supra) in all of which also the
female had come into possession of the property prior to coming into force
the Hindu Succession Act, merely reiterate the aforesaid legal position save
that in Jose (supra) it was also observed that there is no distinction between
the rights claimed by a widow and a daughter in respect of property of a
male Hindu and Section 14, by using the expression female Hindu does not
draw any distinction between a widow and a daughter.
26. As far as the judgments cited by the counsel for the defendant no.2 are
concerned, though in Rao Raja Tej Singh (supra), the learned Single Judge
of the High Court of Rajasthan undoubtedly held that a person who has only
a right of residence in the property cannot be said to have acquired the
CS(OS) 1771/2012 Page 23 of 39
property, inspite of such right of residence having been created in lieu of a
pre-existing right but the same is contrary to the judgments aforesaid of the
Supreme Court. Similarly in Kothi Satyanarayana (supra) though the
Supreme Court held the settlement deed (of prior to coming into force of the
Hindu Succession Act) in favour of the widow of the predeceased son to be
an instrument within the meaning of Sub-Section (2) of Section 14 but
without any discussion or noticing the earlier judgments supra including of
larger benches of the Court and the same does not bind the undersigned.
27. In the present case the Memorandum of Family Settlement (supra)
itself provides “in order to arrive at just and reasonable settlement it was
necessary to make arrangement for the residence and maintenance of” the
plaintiffs no.2&3; that the said Settlement was in lieu of all the existing
present and future rights of the plaintiffs “as to their residence, maintenance
and marriage expenses etc.” against the defendant no.2, leaving no manner
of doubt that the defendant no.2 was putting the plaintiffs in possession of
the flat in settlement of the claims and rights of the plaintiffs for
maintenance and residence against the defendant no.2. However a distinction
was made; while the possession was given to the plaintiffs no.2&3 in
settlement of their claims for maintenance as well as residence, plaintiff no.1
CS(OS) 1771/2012 Page 24 of 39
was put into possession in lieu of her claim against the defendant no.2 for
residence only.
28. I have wondered whether the claim for residence is part of a claim for
maintenance which is expressly mentioned in the Explanation of Sub-
Section (1) of Section 14. I find the Supreme Court in Mangat Mal supra to
have held that maintenance, necessarily must encompass a provision for
residence and a provision for maintenance may be made by providing, for
the course of the lady's life, a residence and where provision is made in this
manner, by giving a life interest in property for the purposes of residence,
that provision is made in lieu of a pre-existing right to maintenance and the
Hindu lady acquires far more than the vestige of title which is deemed
sufficient to attract Section 14(1). Reference was also made to Section 3(d)
of The Hindu Adoptions and Maintenance Act, 1956 where maintenance is
defined as including a provision for residence. Similarly in B.P. Achala
Anand Vs. S. Appi Reddy (2005) 3 SCC 313 it was held that a Hindu wife is
entitled to be maintained by her husband; she is entitled to remain under his
roof and protection; she is also entitled to separate residence if by reason of
the husband's conduct or by his refusal to maintain her in his own place of
residence or for other just cause she is compelled to live apart from him. It
CS(OS) 1771/2012 Page 25 of 39
was clarified that right to residence is a part and parcel of wife's right to
maintenance. The same view was reiterated in Komalam Amma Vs.
Kumara Pillai Raghavan Pillai (2008) 14 SCC 345.
29. It thus appears that notwithstanding the plaintiffs having been put into
possession of the flat in terms of the Memorandum of Family Settlement, the
same was in lieu of their right / claim of maintenance against the defendant
no.2. Once that is found to be the case, the judgments supra cited by the
senior counsel will apply and the plaintiffs would be entitled to the benefit of
Section 14(1) supra.
30. However on researching further I find the Supreme Court to have
struck a different note in Sadhu Singh Vs. Gurdwara Sahib Narike (2006)
8 SCC 75 to which the counsel for the defendant no.2 failed to draw
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attention. In this case the husband died on 19 March, 1977 bequeathing life
interest only to his wife in the immovable property (though she even
otherwise was the only natural heir). The question for adjudication was
whether Sub-Section (1) or Sub-Section (2) of Section 14 supra would
apply. The High Court, probably following the judgments noticed above,
held that the wife had a pre-existing right in the property and consequently
CS(OS) 1771/2012 Page 26 of 39
the limitation placed on her rights in the Will could not prevail in view of
Section 14(1). The Supreme Court however held, (i) that the High Court did
not bear in mind that the property was the separate or self-acquired property
of the husband and his wife though might have succeeded to the property as
an absolute and sole heir if the husband had died intestate, had no pre-
existing right as such; (ii) the wife, at best, only had a right to maintenance
and at best could have secured a charge by the process of Court for her
maintenance under the Hindu Adoptions and Maintenance Act and may be,
in terms of Section 39 of the Transfer of Property Act,1882 could have also
enforced the charge against an alienee from her husband; (iii) unlike in a
case where the widow was in possession of the property on the date of the
coming into force of the Hindu Succession Act, in which case she had a pre-
existing right at least to maintenance, a situation covered by Section 14(1), if
a Hindu male disposes of his separate property by way of testamentary
disposition, placing a restriction on the right given to the widow, the
question, whether Section 14(2) would not be attracted, was not considered
by the High Court which blindly followed the dicta of the Supreme Court in
V. Tulasamma supra; and, (iv) under Section 18 of the Hindu Adoptions and
Maintenance Act, a Hindu wife is entitled to be maintained by her husband
CS(OS) 1771/2012 Page 27 of 39
during her life time; under Section 22 thereof an obligation is cast on the
heirs of the deceased Hindu to maintain the dependants of the deceased
including his widow out of the estate inherited by them from the deceased;
neither Section 18 relating to a wife nor Section 22 dealing with a widow,
provides for any charge for the maintenance on the property of the husband;
to the contrary, Section 27 specifies that a dependant's claim for
maintenance shall not be a charge on the estate of the deceased unless one
would have been created by the Will of the deceased, by a decree of Court,
or by an agreement between the dependant and the owner of the estate;
(v) though the wife in the absence of the Will would have obtained the
property absolutely as an heir but since the Will had intervened, the question
had to be considered in the light thereof; (vi) V. Tulasamma was a case,
where a female Hindu possessed the property on the date of the
commencement of the Hindu Succession Act and in which she had a pre-
existing right though limited and in such circumstances Section 14(1) had
operation to convert her limited estate into an absolute one and Section 14(2)
could not be relied on for taking the case out of Section 14(1) of the Act on
the basis that the property was put in her possession on the basis of a
compromise; (vii) that for Section 14(1) to get attracted, the property must
CS(OS) 1771/2012 Page 28 of 39
be possessed by the female Hindu on the coming into force of the Hindu
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Succession Act; (viii) reliance was placed on Mayne on Hindu Law, 15
Edn. opining that if a female Hindu acquires property after the
commencement of the Hindu Succession Act, with a restricted estate, Sub-
Section (2) applies; such acquisition may be under the terms of a gift, Will
or other instrument or a decree or order or award; (ix) reference was made to
Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva AIR
1959 SC 577 laying down that the words “property possessed by a female
Hindu” in Section 14(1) clearly contemplate the female's possession when
the Act came into force; (x) 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; (xi) thus 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;(xii) any acquisition of possession of property by a female Hindu
after the coming into force of the Hindu Succession Act, cannot normally
attract Section 14(1); (xiii) if she takes it as an heir under the Act, she takes
CS(OS) 1771/2012 Page 29 of 39
it absolutely; (xiv) if while getting possession of the property after the Hindu
Succession 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; (xv) when a male Hindu disposes of his property by providing for a
limited estate to his wife, the wife or widow has to take it as the estate falls;
this restriction on her right so provided, is really respected by the Act; (xvi)
invocation of Section 14(1) of the Act in the case of a testamentary
disposition taking effect after the Act, would make Sections 30 and 14(2)
redundant or otiose; it will also make redundant, the expression “property
possessed by a female Hindu” occurring in Section 14(1) of the Act.
31. The Supreme Court, thus, in Sadhu Singh supra carved out a
distinction between cases where the female had come into possession of the
property before the coming into force of the Hindu Succession Act and those
where the female came into possession thereafter. Though the Supreme
Court in Gulwant Kaur supra, even where the female had come into
possession after the coming into force of the Hindu Succession Act,
followed V. Tulasamma , also relying on Jagannathan Pillai Vs.
Kunjithapadam Pillai (1987) 2 SCC 572 where it was expressly held that
there is nothing in Section 14 which supports the proposition that a Hindu
CS(OS) 1771/2012 Page 30 of 39
female should be in actual physical possession or in constructive possession
of any property on the date of coming into operation of the Hindu
Succession Act and that any property possessed by a female Hindu acquired
after the commencement of the Hindu Succession Act will be held as a full
and not a limited owner, but unfortunately neither of the said judgments
were noticed in Sadhu Singh , which has held diametrically opposite thereto.
32. The plaintiffs were admittedly not in possession of the flat on the
commencement of the Hindu Succession Act. In fact on that date even the
defendant no.2 was not in possession. Thus applying the test laid down by
Sadhu Singh supra, Section 14(2) would apply and the case of the plaintiffs
would fail.
33. The question came up before the Supreme Court in Jagan Singh Vs.
Dhanwanti (2012) 2 SCC 628, again in the context of a Will bequeathing a
limited estate in favour of the wife and it was held that life estate given to a
wife under a Will cannot become a absolute estate under the provisions of
Section 14(2) of the Hindu Succession Act. In yet another recent judgment
in Shivdev Kaur Vs. R.S. Grewal (2013) 4 SCC 636 also, quoting Sadhu
Singh supra, it was held that if a Hindu female has been given only a "life
CS(OS) 1771/2012 Page 31 of 39
interest", through Will or gift or any other document, the said rights would
not stand crystallized into the absolute ownership as, in interpreting the
provisions to the effect that she would acquire absolute ownership / title to
the property by virtue of the provisions of Section 14(1), the provisions of
Sections 14(2) and 30 would become otiose. It was further held that Section
14(2) carves out an exception to rule provided in Sub-Section (1) which
clearly provides that if a property had been acquired by a Hindu female by a
Will or gift, giving her only a "life interest", it would remain the same even
after the commencement of the Act and such a Hindu female cannot acquire
absolute right. A Single Judge of this Court also in Ranvir Dewan Vs.
Rashmi Khanna 204 (2013) DLT 192 followed the same view.
34. I am now faced with the dilemma, whether to follow Jagannathan
Pillai and Gulwant Kaur (supra) or Sadhu Singh (supra) and the judgments
aforesaid subsequent thereto. All the judgments are of Benches of the same
strength. The problem is confounded by yet another judgment of the
Supreme Court in Nazar Singh v. Jagjit Kaur (1996) 1 SCC 35 (also of a
Bench of the same strength) the facts whereof were identical to the facts of
the present case and on which reliance ought to have been placed by the
plaintiffs. Relying on Jagannathan Pillai (supra), Section 14(1) was held to
CS(OS) 1771/2012 Page 32 of 39
apply; a distinction was also carved out between property given to a Hindu
female under a Will and the property given to a Hindu female under a
compromise, in lieu of the claim of maintenance observing that will is
referred to only in Sub-Section (2) and not in Sub-Section (1) (I may
respectfully state that the Explanation to Sub-Section (1) refers to
acquisition of property by a female Hindu by inheritance by devise and
which would include Will). Nazar Singh was followed in Santhosh v.
Saraswathibai (2008) 1 SCC 465 (again by a bench of the same strength)
without however noticing Sadhu Singh ; though Gummalapura Taggina
Matada Kotturuswami (supra) taking a different view was noticed but no
reason for differing therefrom given.
35. After weighing the two different views of the Supreme Court, I opt to
follow the view taken in Sadhu Singh (supra) for the following reasons:-
A. Sadhu Singh , after analysing and interpreting the language of
Section 14(1) as well as the changes in Hindu Law upon the coming
into force of the Hindu Adoptions and Maintenance Act, 1956 holds
Section 14(1) to be applicable only where the Hindu female is in
possession of the property on the date of commencement of the Hindu
CS(OS) 1771/2012 Page 33 of 39
Succession Act and not where the Hindu female comes into
possession of the property after the commencement of the said Act.
Per contra, Jagannathan Pillai on which the subsequent judgments in
Gulwant Kaur , Nazar Singh and Santhosh (supra) taking a different
view are based, was a case where the widow though acquired a limited
estate from her husband was not in possession on the date of coming
into force of the Hindu Succession Act and repossessed the property
thereafter. It was in this context that the Supreme Court held
Section 14(1) to be applicable holding that the word “possessed” has
to be given a wide meaning. This peculiar fact of the widow in
Jagannathan Pillai having acquired the property prior to the
commencement of the Hindu Succession Act was not noticed in the
subsequent judgments supra holding that possession of the property
under Section 14(1) could be before or after the commencement of the
Act. In none of the said judgments the provisions of the Hindu
Adoptions and Maintenance Act and the changes brought about
thereby in the right of Hindu female to maintenance were also noticed.
B. Section 14(1) carves out a difference between possession of the
property and acquisition of the property. Only the word "acquired" is
CS(OS) 1771/2012 Page 34 of 39
qualified with the words “whether before or after the commencement
of this Act”. Had the intention of the legislature been that a property
acquired by a female Hindu, whether before or after the
commencement of the Act, shall be held by her as full owner and not
as a limited owner, there was no need to carve out a distinction
between possession and acquisition of the property. From such
distinction made out and from the intentional omission to qualify the
word "possessed" with the words "whether before or after the
commencement of this Act" the legislative intent of, for applicability
of Section 14(1), possession on the date of commencement of the Act
being essential is quite explicit.
C. All statutes particularly those governing and regulating human
relations are dynamic in nature and their interpretation, inspite of
societal changes, cannot remain static. Law cannot be a fossil. The
Supreme Court in Union of India v. Raghubir Singh (1989) 2 SCC
754 emphasized the need for adapting the law to new urges in society
and quoted with approval the Holmesian aphorism that the "life of the
law has not been logic, it has been experience". It was further held
that in a developing society such as India, law does not assume its true
CS(OS) 1771/2012 Page 35 of 39
function when it follows a groove chased amidst a context which has
long since crumbled. Similarly in State of Punjab v. Devans Modern
Breweries Ltd. (2004) 11 SCC 26 it was held that a decision although
neither reversed nor overruled may cease to be law owing to changed
conditions and changed law, as reflected by the principle "cessante
ratione legis cessat ipsa lex". In Bhuwalka Steel Industries Ltd. v
Bombay Iron and Steel Labour Board (2010) 2 SCC 273 it was
reiterated that the trend of judicial opinion is that stare decisis is not a
dogmatic rule allergic to logic and reason; it is a flexible principle of
law operating in the province of precedents providing room to
collaborate with the demands of changing times dictated by social
needs, State policy and judicial conscience. V. Tulasamma is a
judgment of a different era, the guiding principle whereof was the
Shastric Hindu Law and to convert, the limited ownership rights of
women who till then were clearly discriminated against insofar as
ownership of property was concerned, to absolute right. However with
the changing times and changing relationships particularly between
husband and wife it is felt that to adopt the interpretation of Section
14(1) as in V. Tulasamma would be to the detriment of wives. If such
CS(OS) 1771/2012 Page 36 of 39
an interpretation were to be followed in today's times, husbands
having differences with their wives would hesitate from providing a
separate residence for the wife for the fear of losing all rights thereto
and the said residence after the lifetime of the wife going into the
hands of her heirs. Similarly husbands owning property would fear
bequeathing a life estate therein to their wives.
D. The additional reasoning given in Nazar Singh of acquisition of
the property under a compromise being different from acquisition of
property under a Will owing to the Will being not mentioned in
Section 14(1), as aforesaid does not appear to be correct.
E. The plaintiffs in the Memorandum of Family Settlement
expressly agreed that the plaintiffs no.2&3 shall cease to have any
right of residence in the flat after their marriage and will not claim any
interest, right or title whatsoever in the flat and that the plaintiff no.1
shall also cease to have any right of residence in the flat if she re-
marries or resides at another place and that the right of residence of
the plaintiff no.1 in the said flat was for her life time only. The
plaintiffs further agreed that they shall not claim any right in future
over any property of the defendant no.2. The plaintiffs further agreed
CS(OS) 1771/2012 Page 37 of 39
that after the marriage of the plaintiffs no.2&3 it will be the defendant
no.2 who would be entitled to the rent of the third floor of the flat.
The plaintiffs presented the said Memorandum of Family Settlement
before the Court and before the Court also undertook to abide by the
terms & conditions of the Settlement and not to file any claim,
petition, complaint or other proceeding against the defendant in any
Court of law. I have wondered whether not the very institution of the
present suit is in violation of the undertaking given by the plaintiffs to
the Court at the time of culmination of the earlier litigation and
whether the plaintiffs are entitled to do so. Though undoubtedly in
some of the judgments cited by the senior counsel for the plaintiffs
also the decrees had been passed in terms of the agreements entered
into (in Santhosh supra it was held that consent decrees must be
construed having regard to the well settled legal position) but at the
same time the Courts have held that such Family Settlements are to be
honoured, upheld and enforced. It is not as if in the earlier litigation
between the plaintiffs and the defendant no.2 any right of maintenance
or residence of the plaintiffs against the defendant no.2 had been
established. The matter was still at large. It is well-nigh possible that
CS(OS) 1771/2012 Page 38 of 39
ultimately the plaintiffs may not have succeeded in any claim for
maintenance against the defendant no.2. It would be against equity, in
my opinion, to in such circumstances permit the plaintiffs to act in
contravention of the Family Settlement and the undertaking given by
them to the Court in the earlier proceedings.
36. I am therefore unable to find the plaintiffs to be entitled to the relief of
declaration sought or to other consequential reliefs. The suit has to thus fail
and is dismissed. The statement of the defendant no.2 as recorded
hereinabove is however accepted and he is ordered to be bound by the
statement given to the Court to not act in contravention of the Memorandum
of Family Settlement and is cautioned of the consequences of breach of such
assurance given to the Court.
In the circumstances, no costs.
Decree sheet be prepared.
RAJIV SAHAI ENDLAW, J.
JULY 18, 2014
pp/gsr
CS(OS) 1771/2012 Page 39 of 39
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% Date of decision: 18 July, 2014
+ CS(OS) 1771/2012, IAs No.11180/2012 (u/O 39 R-1&2 CPC),
17219/2012 ( of the defendant no.2 u/O 39 R-4 r/w 151 CPC) &
17220/2012 (of the defendant no.2 u/S 151 CPC)
MAHIMA AND ORS ..... Plaintiffs
Through: Ms. Maninder Acharya, Sr. Adv. with
Mr. S.N. Khanna, Adv.
Versus
DDA & ANR ..... Defendants
Through: Ms. Alpana Pandey, Adv. for D-1.
Mr. D.K. Sharma, Adv. for D-2.
CORAM :-
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The three plaintiffs have instituted this suit for the reliefs of,
(i) declaration that they are the absolute owners of MIG Flat No. AD-21-C
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Pitam Pura, New Delhi under the Family Settlement dated 29 November, 2006
executed by the plaintiff no.1 and the defendant no.2 Shri Anil Arora;
(ii) mandatory injunction directing the defendant no.1 DDA to mutate the said
flat from the name of the defendant no.2 Sh. Anil Arora to the name of the
plaintiffs; (iii) mandatory injunction directing the defendant no.2 to handover to
the plaintiffs all the requisite documents pertaining to the said flat; and, (iv)
CS(OS) 1771/2012 Page 1 of 39
permanent injunction restraining the defendant no.2 from creating any third
party interest in the said flat, pleading:-
nd
(a) that the plaintiff no.1 was married to the defendant no.2 on 22
January, 1987 and out of the said wedlock the plaintiffs no.2&3
Udita Arora and Pulkita Arora were born;
(b) that the plaintiff no.1 and the defendant no.2 were involved in
numerous litigations and after a long standing litigation in various
courts of law, the plaintiff no.1 and the defendant no.2 agreed to
settle all their disputes amicably out of Court and accordingly the
th
Family Settlement dated 29 November, 2006 supra was executed
between plaintiff no.1 acting for herself and on behalf of the minor
plaintiff no.3, plaintiff no.2 and defendant no.2;
(c) that the primary reason for execution of the said Family Settlement
was to take care of the pre-existing right of maintenance and up-
bringing, residence, marriage expenses of the plaintiffs who were
in possession of the said flat since much prior to the execution of
the Family Settlement;
CS(OS) 1771/2012 Page 2 of 39
(d) that after the execution of the said Family Settlement, the plaintiff
no.1 as per the terms thereof consented for a decree of divorce by
mutual consent and the marriage of the plaintiff no.1 and the
defendant no.2 was dissolved by a decree of dissolution of
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marriage by mutual consent dated 19 December, 2006;
(e) that the said flat had been originally allotted by the defendant no.1
DDA to one Shri Om Parkash and had changed hands from time to
time and at the time of the execution of the Family Settlement the
defendant no.2 was the owner thereof on the basis of registered
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GPA and Will dated 26 September, 1995;
(f) that under the aforesaid Family Settlement, the defendant no.2
gave the plaintiffs lifetime interest of residence in the aforesaid flat
owned by him; the said lifetime interest of residence was in lieu of
all existing present and future rights of the plaintiffs as to their
residence, maintenance and marriage expenses;
(g) that as per the mandate and force of Section 14(1) of the Hindu
Succession Act, 1956, the plaintiffs have become the sole and
absolute owners of the said flat;
CS(OS) 1771/2012 Page 3 of 39
(h) that the defendant no.2 had in the year remarried and his second
wife was claiming that the defendant no.2 had executed a Will of
the said flat in her favour;
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(i) that the plaintiffs on 26 April, 2011 approached the defendant
no.1 DDA for converting the leasehold rights in the said flat into
freehold in favour of the plaintiffs and also deposited a bank draft
for Rs.59,200/- towards conversion charges; and,
(j) however the defendant no.1 DDA had refused such conversion
owing to non-submission by the plaintiffs of complete chain of
GPAs and Agreement to Sell.
2. Summons of the suit and notice of the application for interim relief were
st
issued to the defendants and vide ex parte ad interim order dated 1 June, 2012
the defendant no.2 was restrained from transferring, encumbering or selling the
said flat or any part thereof and/or from making any additions, alterations
thereto.
3. The defendant no.1 DDA has contested the suit by filing a written
statement inter alia on the ground that since the plaintiffs had not submitted the
complete documents and not deposited the conversion fee and also not
CS(OS) 1771/2012 Page 4 of 39
submitted the complete chain of GPAs and Agreement to Sell, hence the
conversion case was still pending for want of compliance on behalf of the
plaintiffs.
4. The defendant no.2 has also contested the suit by filing a written
statement inter alia on the grounds:-
(a) that the suit had been filed to curtail the probable rights of his
newly born child from the second marriage;
(b) that the Family Settlement does not give any ownership rights in
the flat to the plaintiffs;
(c) that the claim of the plaintiffs before the defendant no.1 DDA for
conversion of the leasehold rights in the flat into freehold in the
name of the plaintiffs had been rightly rejected;
(d) that the plaintiffs want to grab the property;
(e) denying that the plaintiffs were in possession of the said flat prior
to the execution of the Family Settlement and pleading that it was
the defendant no.2 who was in possession of the said flat as owner
CS(OS) 1771/2012 Page 5 of 39
thereof and the plaintiffs were residing with him as wife and
children;
(f) that as per the terms of the Family Settlement the rights of the
plaintiffs in the said flat are restricted;
(g) that the plaintiff no.1 is employed with the Income Tax
Department and earning a handsome salary;
(h) the question of applicability of Section 14(1) of the Hindu
Succession Act did not arise as the defendant no.2 who is the
owner of the flat is still alive; and,
(i) that the plaintiffs have no rights to the said flat except in terms of
the Family Settlement.
5. Though replications have been filed by the plaintiffs but need is not felt
to refer thereto.
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6. The suit was listed on 20 March, 2014 for framing of issues and for
hearing on the application for interim relief when attention of the counsel for
the plaintiffs was invited to Section 14 (2) of the Hindu Succession Act and it
was enquired whether not the plaintiffs, having come into use and occupation
CS(OS) 1771/2012 Page 6 of 39
of the said flat on the terms contained in the Memorandum of Family
th
Settlement dated 29 November, 2006, were disentitled from asserting any
other rights in the said flat and whether not the plaintiffs could at best restrain
the defendant no.2 from acting in contravention thereof.
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7. The counsel for the defendant no.2 on 20 March, 2014 stated that the
defendant no.2 is willing to abide by the said Memorandum of Family
Settlement and shall not sell / transfer / encumber the said flat till either of the
three plaintiffs have a right of residence therein and shall not disturb the
possession, use and enjoyment of the plaintiffs of the said flat and shall not do
any other thing prejudicial to the rights of the plaintiffs under the said
Memorandum of Family Settlement.
8. On request of the counsels opportunity of hearing was granted. The
th nd
counsels were thereafter heard on 26 March, 2014 and 2 April, 2014.
9. Section 14 of the Hindu Succession Act on which the claim of the
plaintiffs is premised is as under:-
“ 14. Property of a female Hindu to be her absolute
property
(1) Any property possessed by a Female Hindu,
whether acquired before or after the commencement of
CS(OS) 1771/2012 Page 7 of 39
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.”
10. While it is the case of the plaintiffs that they have become the full
owners of the said flat under Sub-Section (1) supra, it is the case of the
defendant no.2 that the rights of the plaintiffs in the said flat are under the
Memorandum of Family Settlement and thus under Sub-Section (2) supra
remain unaffected by the provisions of Sub-Section (1).
11. For proper appreciation of the aforesaid aspect, it is appropriate to
reproduce in entirety herein below the Memorandum of Family Settlement:-
CS(OS) 1771/2012 Page 8 of 39
“ MEMORANDUM OF FAMILY SETTLEMENT
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This Memorandum of Settlement is executed on 29 day of
November, 2006 amongst:
i) Anil Arora S/o Sh. H.L. Arora,
R/o AD-29-A, Pitampura, Delhi -110088
(Party of the First Part)
ii) Smt. Mahima Arora W/o Sh. Anil Arora
(Party of the Second Part)
iii) Ms. Udita Arora D/o Sh. Anil Arora
(Party of the Third Part)
iv) Pulkita Arora D/o Sh. Anil Arora (Minor)
through her mother Mahima Arora and natural guardian
(Party of the Fourth Part)
(Party No.(ii) to (iv) resident of AD-21-C, Pitampura, Delhi-
110088.
The expression First Party, Second Party, Third Party and
Fourth Party unless context means otherwise, shall mean and
include their heirs, representatives, successors, assigns etc.
WHEREAS the litigation between Party of the First Part
and Party of the Second Part are going on in different Courts and
now they have decided to settle the disputes between them and to
take the divorce by mutual consent between Mahima Arora and
Anil Arora.
AND WHEREAS the First Party and the Second Party were
married to each other according to Hindu Rites and Ceremonies
on 22.01.1987 in Delhi.
AND WHEREAS Ms. Udita Arora and Ms. Pulkita Arora
were born from the said wedlock and Pulkita Arora is minor.
AND WHEREAS the differences arose between the parties
and following litigations were pending between First Party and
Second Party.
CS(OS) 1771/2012 Page 9 of 39
1. Divorce Petition pending before Ms. Anju Bajaj Chandna,
ADJ, Delhi.
2. Case Under Section 406/498 IPC pending in the Court of
M.M. Shalimar Bagh, Delhi.
3. Revision Petition pending in the Court of Sh. Yogesh
Khanna, ADJ, Delhi.
4. Petition for Permanent Injunction pending in the Court of
Sh. D.K. Sharma, CJ, Delhi.
AND WHEREAS the parties desire to settle the matter and
to end the differences and continue with their lives peacefully and
without any interference from other party.
AND WHEREAS in order to arrive at just and reasonable
settlement it was necessary to make arrangement for the residence
and maintenance of and Third & Fourth Party.
AND WHEREAS the First, Second and Third Party (Second
Party for self and for Fourth Party) have reached a settlement /
arrangement to settle all their disputes and differences on
28.11.2006.
AND WHEREAS it was found necessary and expedient to
record the terms of settlement to avoid any further or future
disputes.
NOW THIS MEMORANDUM OF FAMILY
SETTLEMENT WITNESSESTH AS UNDER
1. That the First Party is the absolute owner of the second
Floor bearing No.AD-21-C, Pitampura, Delhi-110088 and also
the Third Floor, built-up on the roof of the Second Floor. The
Party of the First Part allows exclusively the Party of the Second
Part by creating life interest of residence and further the Third &
Fourth Party to live in the property at Second Floor only till their
marriages and use the same for their residential purpose only
subject to further following restrictions.
a) That the Third & Fourth Party shall cease to have any right
of residence in the said property after their marriage and
CS(OS) 1771/2012 Page 10 of 39
they will not claim any interest, right and title in the
property whatsoever.
b) That the Second Party also shall cease to have any right of
residence in the entire portion of the property, if she re-
marries or resides at any other place.
c) That the Party of the Second Part can let out for residence
purpose only the Third Floor to any tenant in accordance
with law & rules of any authority, user of the rental income
shall be restricted to Rs.3000/- by herself for the welfare
Third & Fourth Party and over the above Rs.3000/- shall be
deposited in a Bank Account in the name of the Third Party
and Fourth Party and shall be used for their marriage. The
copy of the Rent / Lease Agreements containing occupation,
place of working and the permanent address of every tenant
will be supplied to the Party of the First Part. The Party of
the Second Part is not entitled to let out the Second Floor to
anyone at any point of time whatever the reason may be and
will use the Second Floor as a residence for herself and
daughters namely Udita and Pulkita only. After the
marriage of Udita and Pulkita the rent of the Third Floor
will be recovered from the tenant by the First Party without
any interruption from the side of Second Party, Third &
Fourth Party.
d) That the Party of the First Part will be having the visiting
rights to the Third & Fourth Party once in a month.
e) That the Party of the Second Part will maintain and keep the
Second & Third Floor in accordance with DDA & MCD
Rules & Regulations. They will also pay the House Tax and
Charges of all amenities i.e. water and electricity and keep
the Second and Third Floor in intact and habitable
condition.
2. That the Party of the First Part has assured the other
parties that the Property is free from all encumbrances and he will
not create any Third Party interest and will not mortgage the
property to anyone. Subject to Clause 1 (c) the Second Party will
CS(OS) 1771/2012 Page 11 of 39
not hand over any part of the Flat (Second and Third Floor) to
anyone under any circumstances illegally.
3. That all the claims in respect of any nature whatsoever of
the parties interse themselves i.e. First Party, Second Party (for
self and on behalf of Fourth Party) and Third Party stand settled
and none of the parties shall claim whatsoever anything in future
from the other party and Second Party shall execute documents in
future, if required, for the any other purpose whatsoever the First
and Second Party had signed jointly.
4. That the Party of the First Part and Second Part have
agreed to get their marriage dissolved by mutual consent and
signed all the divorce papers / proceedings (First & Second
Motion) also record their statements in the Court.
5. That the Second Party will co-operate to the First Party to
sign the papers i.e. for closing the Joint Accounts, Lockers etc.
6. That the First Party and Second Party undertake to
withdraw or cause to withdraw all their cases civil / criminal /
complaints against each other pending in different courts and the
Second Party will co-operate to appear before the Hon’ble High
Court for quashing of the FIR. The cases will be withdrawn after
Second Motion will be recorded.
7. That the children shall remain in the custody of the Second
Party.
8. That no party shall claim any right in future over any
properties of each other even received by inheritance.
9. That present settlement is in lieu of all the existing present
and future rights of the Second, Third and Fourth Party as to their
residence, maintenance and marriage expenses etc. The Second,
Third and Fourth Party are already in the possession of the
property No.AD-21-C, Pitampura, Delhi-110 088.
10. That the settlement has been arrived without any coercion,
pressure or threat.
11. That the Second Party has no interest adverse to any
interest of Fourth Party.
CS(OS) 1771/2012 Page 12 of 39
IN WITNESS WHEREOF the First, Second (for herself and
on behalf of the Fourth Party) & Third Party have put their hands
unto this Memorandum of Understanding in the presence of the
Witnesses on this day, month and year as mentioned hereinabove:-
WITNESSES:
Sd/-
1. Sd/- 1. PARTY OF THE FIRST PART
Sd/-
2. Sd/- 2. PARTY OF THE SECOND PART
(FOR HERSELF & ON BEHALF
OF THE FOURTH PARTY)
Sd/-
3. PARTY OF THE THIRD PART”
12. The plaintiffs have also filed before this Court a copy of the judgment
th
dated 19 December, 2006 of the Court of the Additional District Judge
passing a decree of dissolution of marriage of the plaintiff no.1 with the
defendant no.2 by way of mutual consent under Section 13B(2) of the Hindu
Marriage Act, 1955 and which inter alia records “Parties have mutually and
amicably settled all the issues on the terms and conditions set out in the
petition. Both the parties have undertaken to abide by the terms and
conditions of settlement so incorporated in the Memorandum of Family
Settlement dated 29.11.06 which is Exhibit C-1…..The parties undertake and
CS(OS) 1771/2012 Page 13 of 39
assure each other that they would not file any claim, petition, complaint and
/ or any other proceedings against each other in any courts of law.”
13. The counsel for the plaintiffs during the hearing informed that at the time
of execution of the deed aforesaid of Family Settlement, a petition filed by the
plaintiffs no.1&2 under Sections 24 & 26 of the Hindu Marriage Act for
maintenance was also pending consideration.
14. It is also not in dispute that the aforesaid Memorandum of Family
Settlement was acted upon as recorded therein.
15. The senior counsel for the plaintiffs, to support the plea of the plaintiffs,
of the plaintiffs under Section 14(1) of the Hindu Succession Act having
become the owners of the flat, has placed reliance on (a) Gadam Reddayya Vs.
Varapula Venkataraju AIR 1965 AP 66 (DB); (b) Seth Badri Prasad Vs.
Srimati Kanso Devi 1969 (2) SCC 586; (c) V. Tulasamma Vs. Sesha Reddy
(1977) 3 SCC 99; (d) Gulwant Kaur Vs. Mohinder Singh (1987) 3 SCC 674;
(e) Mangat Mal Vs. Punni Devi (1995) 6 SCC 88; (f) Jose Vs. Ramakrishnan
Nair AIR 2004 Kerala 16; and, (g) M. Jana Bai Vs. M. Govardhanagiri Naidu
@ M.G. Giri AIR 2007 Karnataka 140.
CS(OS) 1771/2012 Page 14 of 39
16. Per contra, the counsel for the defendant no.2 in support of applicability
of Section 14(2) of the Hindu Succession Act has referred to Rao Raja Tej
Singh Vs. Hastimal AIR 1972 Rajasthan 191 and Kothi Satyanarayana Vs.
Galla Sithayya (1986) 4 SCC 760.
17. The senior counsel for the plaintiffs has further contended that:-
A. that the aforesaid flat is possessed by the three plaintiffs who are
female Hindus ;
B. that the aforesaid flat was acquired by the three plaintiffs under the
Memorandum of Family Settlement aforesaid in lieu of their claim
for maintenance or arrears of maintenance against the defendant
no.2;
C. that notwithstanding anything to the contrary contained in the
Memorandum of Family Settlement, the plaintiffs have under Sub-
Section (1) of Section 14 become the full owners of the said flat
and are not the limited owners in terms of the Memorandum of
Family Settlement;
CS(OS) 1771/2012 Page 15 of 39
D. that the facts of the present case are identical to the facts in Gadam
Reddayya (supra) and which was approved by the Supreme Court
in para 39 of V. Tulasamma supra;
E. Attention is invited to Section 25 of the Hindu Marriage Act and to
Section 20 of the Hindu Adoptions and Maintenance Act, 1956 to
support the plea that the plaintiff no.1 wife and the plaintiffs
no.2&3 children had a right / claim for maintenance against the
defendant no.2 and it is contended that the same was a pre-existing
right; and,
F. in response to a Court query it is stated that there is no difference
between a right of maintenance and a right of residence.
18. Per contra the counsel for the defendant no.2 argued:-
I. that the proceedings for maintenance were only by the plaintiffs
no.2&3 and not by the plaintiff no.1 who was employed and
earning handsomely;
CS(OS) 1771/2012 Page 16 of 39
II. that the plaintiff no.1 at the time of execution of the Memorandum
of Family Settlement had no right of residence against the
defendant no.2;
III. that the defendant no.2 has never admitted any right of any of the
plaintiffs for maintenance against the defendant no.2.
19. I have considered the rival contentions.
20. I must admit that the query as posed by me to the counsel for the
th
plaintiffs on 20 March, 2014 was on an understanding of Section 14 (supra)
to the effect that Sub-Section (1) thereof applies only when the possession of
a female Hindu of the property is by operation of law and that Sub-Section
(2) thereof applies when the acquisition of property by a female Hindu is
under an instrument. It was further my understanding that the possession of
the plaintiffs of the subject flat was under the Memorandum of Family
Settlement which is an instrument and in terms of which the order of
dissolution of marriage of the plaintiff no.1 with the defendant no.2 was
passed by the Court of competent jurisdiction and thus Sub-Section (2)
would apply.
CS(OS) 1771/2012 Page 17 of 39
21. However I find that the Division Bench of the Andhra Pradesh High
Court in Gadam Reddayya (supra) was concerned with a settlement deed
between mother and son, whereunder the mother was given certain land
during her lifetime with right to raise the crops and enjoy the fruits but with
prohibition of contracting any debts on the security of the said lands and
dealing with an argument that such a settlement deed is an instrument as
envisaged by Sub-Section (2) of Section 14, held; i) that Sub-Section (2)
comes into effect only in cases where a new right is created with certain
restrictions and conditions and can have no application to cases of
recognition of existing rights; ii) the mother had a right to be maintained by
the son out of the estate; iii) it is pursuant to that right that her claim for
maintenance was settled vide settlement deed and in lieu whereof she gave
up her other claims; iv) that the settlement deed merely recognized the pre-
existing right of the mother to maintenance; v) that no new right was
conferred under the settlement deed on the mother; vi) the restrictions in the
settlement deed merely set out the legal effect on her estate as maintenance
holder and was akin to a life estate, with the mother being entitled to enjoy
the land in lieu of maintenance and thus held the case to be falling outside
CS(OS) 1771/2012 Page 18 of 39
the scope of Sub-Section (2) and being governed by Sub-Section (1) of
Section 14.
22. Similarly, the Supreme Court in Seth Badri Prasad (supra) was
concerned with an arbitration award between the widow and sons of the
deceased owner of the properties and made rule of the Court and under
which the widow was given widow’s estate in some of the properties and
dealing with the contention of the widow having acquired the said properties
under the arbitration award and the decree of the Court, Sub-Section (1)
would be inapplicable, held; i) the critical words in Sub-Section (1) are
“possessed” and “acquired”; ii) the word “possessed” has been used in its
widest connotation and possession may be either actual or constructive or in
any form recognized by law; iii) the word “acquired” in Sub-Section (1) has
also to be given the widest possible meaning owing to the language of the
Explanation to Sub-Section (1) which makes Sub-Section (1) applicable to
acquisition of property by inheritance or devise or at a partition or in lieu of
maintenance or arrears of maintenance or by gift etc.; iv) Sub-Section (2) of
Section 14 is more in the nature of a proviso or an exception to Sub-Section
(1); v) that the object of Section 14 is only to remove the disability on
women imposed by law and not to interfere with contracts, grants or decrees
CS(OS) 1771/2012 Page 19 of 39
etc. by virtue of which a women’s right was restricted; vi) the mere fact that
there was a partition by means of arbitration which resulted in an award and
a decree based on it did not bring the matter within Sub-Section (2) as the
provisions of Sub-Section (1) became fully applicable particularly in view of
the express terms of the Explanation.
23. That brings me to V. Tulasamma (supra). In that case also, a widow
had filed a petition for maintenance against the step brother of her husband
and with whom the said husband was in a state of jointness. An ex parte
decree for maintenance was passed and in execution thereof a compromise
was arrived at under which the widow was allotted certain properties but
was to enjoy a limited interest therein with no power at all of alienation. It
was further provided that on the death of the widow, the properties would
revert to the step brother of her husband. The Supreme Court held; i) that a
Hindu woman’s right to maintenance is a personal obligation so far as the
husband is concerned and 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; ii) a widow’s right to maintenance, though not a right
to property, is undoubtedly a pre-existing right in property which can be
CS(OS) 1771/2012 Page 20 of 39
enforced by the widow who can get a charge created for her maintenance on
the property either by an agreement or by obtaining a decree from the Civil
Court; iii) that the provisions of Section 14 must be liberally construed in
order to advance the object of the Act which is to enlarge the limited interest
possessed by a Hindu widow which was in consonance with the changing
temper of the times; iv) it is manifestly clear that Sub-Section (2) of Section
14 does not refer to any transfer which merely recognizes a pre-existing
right without creating or conferring a new title on the widow; v) the Hindu
Succession Act 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; v) Sub-Section (2) of Section 14 is merely a proviso to Sub-Section (1)
and has to be interpreted as a proviso and not in a manner so as to destroy
the effect of the main provision; vi) that a widow’s claim to maintenance is
undoubtedly a tangible right though not an absolute right to property so as to
become a fresh source of title; vii) that by virtue of the Hindu Women's
Right to Property Act, 1937, the claim of the widow to maintenance has
been crystallized into a full fledged right and any property allotted to her in
lieu of maintenance becomes property to which she has a limited interest
which by virtue of provisions of Section 14 is enlarged into an absolute title;
CS(OS) 1771/2012 Page 21 of 39
viii) Section 14(2) applies only to cases where grant is not in lieu of
maintenance or in recognition of pre-existing rights but confers a fresh right
or title for the first time and while conferring the said title certain restrictions
are placed by the grant or transfer. Where however the grant is merely in
recognition or in implementation of a pre-existing right to claim
maintenance, the case falls beyond the purview of Section 14(2) and comes
squarely within the Explanation to Section 14 (1); ix) Gadam Reddayya
(supra) was noticed and expressly approved; x) a Hindu female’s right of
maintenance is not an 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 recognized and enjoined by pure Shastric Hindu Law and has
been strongly stressed even by the earlier Hindu jurists starting from
Yajnavalkya to Manu.
24. All the aforesaid judgments pertained to cases where the female had
th
come into possession of the property prior to the coming into force on 17
June, 1956 of the Hindu Succession Act. I thus enquired from the senior
counsel for the plaintiffs, whether the position would be any different if the
female came into possession of the property after the coming into force of
CS(OS) 1771/2012 Page 22 of 39
the Hindu Succession Act. The senior counsel for the plaintiffs drew
attention to Gulwant Kaur (supra) where the female came into possession of
the property after the coming into force of the Hindu Succession Act, but the
same view, as in the aforesaid judgments, was followed and it was observed
that the very right to receive maintenance is sufficient title to enable the
ripening of possession into full ownership if the female is in possession of
the property in lieu of maintenance.
25. Mangat Mal , Jose & M. Jana Bai (supra) in all of which also the
female had come into possession of the property prior to coming into force
the Hindu Succession Act, merely reiterate the aforesaid legal position save
that in Jose (supra) it was also observed that there is no distinction between
the rights claimed by a widow and a daughter in respect of property of a
male Hindu and Section 14, by using the expression female Hindu does not
draw any distinction between a widow and a daughter.
26. As far as the judgments cited by the counsel for the defendant no.2 are
concerned, though in Rao Raja Tej Singh (supra), the learned Single Judge
of the High Court of Rajasthan undoubtedly held that a person who has only
a right of residence in the property cannot be said to have acquired the
CS(OS) 1771/2012 Page 23 of 39
property, inspite of such right of residence having been created in lieu of a
pre-existing right but the same is contrary to the judgments aforesaid of the
Supreme Court. Similarly in Kothi Satyanarayana (supra) though the
Supreme Court held the settlement deed (of prior to coming into force of the
Hindu Succession Act) in favour of the widow of the predeceased son to be
an instrument within the meaning of Sub-Section (2) of Section 14 but
without any discussion or noticing the earlier judgments supra including of
larger benches of the Court and the same does not bind the undersigned.
27. In the present case the Memorandum of Family Settlement (supra)
itself provides “in order to arrive at just and reasonable settlement it was
necessary to make arrangement for the residence and maintenance of” the
plaintiffs no.2&3; that the said Settlement was in lieu of all the existing
present and future rights of the plaintiffs “as to their residence, maintenance
and marriage expenses etc.” against the defendant no.2, leaving no manner
of doubt that the defendant no.2 was putting the plaintiffs in possession of
the flat in settlement of the claims and rights of the plaintiffs for
maintenance and residence against the defendant no.2. However a distinction
was made; while the possession was given to the plaintiffs no.2&3 in
settlement of their claims for maintenance as well as residence, plaintiff no.1
CS(OS) 1771/2012 Page 24 of 39
was put into possession in lieu of her claim against the defendant no.2 for
residence only.
28. I have wondered whether the claim for residence is part of a claim for
maintenance which is expressly mentioned in the Explanation of Sub-
Section (1) of Section 14. I find the Supreme Court in Mangat Mal supra to
have held that maintenance, necessarily must encompass a provision for
residence and a provision for maintenance may be made by providing, for
the course of the lady's life, a residence and where provision is made in this
manner, by giving a life interest in property for the purposes of residence,
that provision is made in lieu of a pre-existing right to maintenance and the
Hindu lady acquires far more than the vestige of title which is deemed
sufficient to attract Section 14(1). Reference was also made to Section 3(d)
of The Hindu Adoptions and Maintenance Act, 1956 where maintenance is
defined as including a provision for residence. Similarly in B.P. Achala
Anand Vs. S. Appi Reddy (2005) 3 SCC 313 it was held that a Hindu wife is
entitled to be maintained by her husband; she is entitled to remain under his
roof and protection; she is also entitled to separate residence if by reason of
the husband's conduct or by his refusal to maintain her in his own place of
residence or for other just cause she is compelled to live apart from him. It
CS(OS) 1771/2012 Page 25 of 39
was clarified that right to residence is a part and parcel of wife's right to
maintenance. The same view was reiterated in Komalam Amma Vs.
Kumara Pillai Raghavan Pillai (2008) 14 SCC 345.
29. It thus appears that notwithstanding the plaintiffs having been put into
possession of the flat in terms of the Memorandum of Family Settlement, the
same was in lieu of their right / claim of maintenance against the defendant
no.2. Once that is found to be the case, the judgments supra cited by the
senior counsel will apply and the plaintiffs would be entitled to the benefit of
Section 14(1) supra.
30. However on researching further I find the Supreme Court to have
struck a different note in Sadhu Singh Vs. Gurdwara Sahib Narike (2006)
8 SCC 75 to which the counsel for the defendant no.2 failed to draw
th
attention. In this case the husband died on 19 March, 1977 bequeathing life
interest only to his wife in the immovable property (though she even
otherwise was the only natural heir). The question for adjudication was
whether Sub-Section (1) or Sub-Section (2) of Section 14 supra would
apply. The High Court, probably following the judgments noticed above,
held that the wife had a pre-existing right in the property and consequently
CS(OS) 1771/2012 Page 26 of 39
the limitation placed on her rights in the Will could not prevail in view of
Section 14(1). The Supreme Court however held, (i) that the High Court did
not bear in mind that the property was the separate or self-acquired property
of the husband and his wife though might have succeeded to the property as
an absolute and sole heir if the husband had died intestate, had no pre-
existing right as such; (ii) the wife, at best, only had a right to maintenance
and at best could have secured a charge by the process of Court for her
maintenance under the Hindu Adoptions and Maintenance Act and may be,
in terms of Section 39 of the Transfer of Property Act,1882 could have also
enforced the charge against an alienee from her husband; (iii) unlike in a
case where the widow was in possession of the property on the date of the
coming into force of the Hindu Succession Act, in which case she had a pre-
existing right at least to maintenance, a situation covered by Section 14(1), if
a Hindu male disposes of his separate property by way of testamentary
disposition, placing a restriction on the right given to the widow, the
question, whether Section 14(2) would not be attracted, was not considered
by the High Court which blindly followed the dicta of the Supreme Court in
V. Tulasamma supra; and, (iv) under Section 18 of the Hindu Adoptions and
Maintenance Act, a Hindu wife is entitled to be maintained by her husband
CS(OS) 1771/2012 Page 27 of 39
during her life time; under Section 22 thereof an obligation is cast on the
heirs of the deceased Hindu to maintain the dependants of the deceased
including his widow out of the estate inherited by them from the deceased;
neither Section 18 relating to a wife nor Section 22 dealing with a widow,
provides for any charge for the maintenance on the property of the husband;
to the contrary, Section 27 specifies that a dependant's claim for
maintenance shall not be a charge on the estate of the deceased unless one
would have been created by the Will of the deceased, by a decree of Court,
or by an agreement between the dependant and the owner of the estate;
(v) though the wife in the absence of the Will would have obtained the
property absolutely as an heir but since the Will had intervened, the question
had to be considered in the light thereof; (vi) V. Tulasamma was a case,
where a female Hindu possessed the property on the date of the
commencement of the Hindu Succession Act and in which she had a pre-
existing right though limited and in such circumstances Section 14(1) had
operation to convert her limited estate into an absolute one and Section 14(2)
could not be relied on for taking the case out of Section 14(1) of the Act on
the basis that the property was put in her possession on the basis of a
compromise; (vii) that for Section 14(1) to get attracted, the property must
CS(OS) 1771/2012 Page 28 of 39
be possessed by the female Hindu on the coming into force of the Hindu
th
Succession Act; (viii) reliance was placed on Mayne on Hindu Law, 15
Edn. opining that if a female Hindu acquires property after the
commencement of the Hindu Succession Act, with a restricted estate, Sub-
Section (2) applies; such acquisition may be under the terms of a gift, Will
or other instrument or a decree or order or award; (ix) reference was made to
Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva AIR
1959 SC 577 laying down that the words “property possessed by a female
Hindu” in Section 14(1) clearly contemplate the female's possession when
the Act came into force; (x) 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; (xi) thus 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;(xii) any acquisition of possession of property by a female Hindu
after the coming into force of the Hindu Succession Act, cannot normally
attract Section 14(1); (xiii) if she takes it as an heir under the Act, she takes
CS(OS) 1771/2012 Page 29 of 39
it absolutely; (xiv) if while getting possession of the property after the Hindu
Succession 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; (xv) when a male Hindu disposes of his property by providing for a
limited estate to his wife, the wife or widow has to take it as the estate falls;
this restriction on her right so provided, is really respected by the Act; (xvi)
invocation of Section 14(1) of the Act in the case of a testamentary
disposition taking effect after the Act, would make Sections 30 and 14(2)
redundant or otiose; it will also make redundant, the expression “property
possessed by a female Hindu” occurring in Section 14(1) of the Act.
31. The Supreme Court, thus, in Sadhu Singh supra carved out a
distinction between cases where the female had come into possession of the
property before the coming into force of the Hindu Succession Act and those
where the female came into possession thereafter. Though the Supreme
Court in Gulwant Kaur supra, even where the female had come into
possession after the coming into force of the Hindu Succession Act,
followed V. Tulasamma , also relying on Jagannathan Pillai Vs.
Kunjithapadam Pillai (1987) 2 SCC 572 where it was expressly held that
there is nothing in Section 14 which supports the proposition that a Hindu
CS(OS) 1771/2012 Page 30 of 39
female should be in actual physical possession or in constructive possession
of any property on the date of coming into operation of the Hindu
Succession Act and that any property possessed by a female Hindu acquired
after the commencement of the Hindu Succession Act will be held as a full
and not a limited owner, but unfortunately neither of the said judgments
were noticed in Sadhu Singh , which has held diametrically opposite thereto.
32. The plaintiffs were admittedly not in possession of the flat on the
commencement of the Hindu Succession Act. In fact on that date even the
defendant no.2 was not in possession. Thus applying the test laid down by
Sadhu Singh supra, Section 14(2) would apply and the case of the plaintiffs
would fail.
33. The question came up before the Supreme Court in Jagan Singh Vs.
Dhanwanti (2012) 2 SCC 628, again in the context of a Will bequeathing a
limited estate in favour of the wife and it was held that life estate given to a
wife under a Will cannot become a absolute estate under the provisions of
Section 14(2) of the Hindu Succession Act. In yet another recent judgment
in Shivdev Kaur Vs. R.S. Grewal (2013) 4 SCC 636 also, quoting Sadhu
Singh supra, it was held that if a Hindu female has been given only a "life
CS(OS) 1771/2012 Page 31 of 39
interest", through Will or gift or any other document, the said rights would
not stand crystallized into the absolute ownership as, in interpreting the
provisions to the effect that she would acquire absolute ownership / title to
the property by virtue of the provisions of Section 14(1), the provisions of
Sections 14(2) and 30 would become otiose. It was further held that Section
14(2) carves out an exception to rule provided in Sub-Section (1) which
clearly provides that if a property had been acquired by a Hindu female by a
Will or gift, giving her only a "life interest", it would remain the same even
after the commencement of the Act and such a Hindu female cannot acquire
absolute right. A Single Judge of this Court also in Ranvir Dewan Vs.
Rashmi Khanna 204 (2013) DLT 192 followed the same view.
34. I am now faced with the dilemma, whether to follow Jagannathan
Pillai and Gulwant Kaur (supra) or Sadhu Singh (supra) and the judgments
aforesaid subsequent thereto. All the judgments are of Benches of the same
strength. The problem is confounded by yet another judgment of the
Supreme Court in Nazar Singh v. Jagjit Kaur (1996) 1 SCC 35 (also of a
Bench of the same strength) the facts whereof were identical to the facts of
the present case and on which reliance ought to have been placed by the
plaintiffs. Relying on Jagannathan Pillai (supra), Section 14(1) was held to
CS(OS) 1771/2012 Page 32 of 39
apply; a distinction was also carved out between property given to a Hindu
female under a Will and the property given to a Hindu female under a
compromise, in lieu of the claim of maintenance observing that will is
referred to only in Sub-Section (2) and not in Sub-Section (1) (I may
respectfully state that the Explanation to Sub-Section (1) refers to
acquisition of property by a female Hindu by inheritance by devise and
which would include Will). Nazar Singh was followed in Santhosh v.
Saraswathibai (2008) 1 SCC 465 (again by a bench of the same strength)
without however noticing Sadhu Singh ; though Gummalapura Taggina
Matada Kotturuswami (supra) taking a different view was noticed but no
reason for differing therefrom given.
35. After weighing the two different views of the Supreme Court, I opt to
follow the view taken in Sadhu Singh (supra) for the following reasons:-
A. Sadhu Singh , after analysing and interpreting the language of
Section 14(1) as well as the changes in Hindu Law upon the coming
into force of the Hindu Adoptions and Maintenance Act, 1956 holds
Section 14(1) to be applicable only where the Hindu female is in
possession of the property on the date of commencement of the Hindu
CS(OS) 1771/2012 Page 33 of 39
Succession Act and not where the Hindu female comes into
possession of the property after the commencement of the said Act.
Per contra, Jagannathan Pillai on which the subsequent judgments in
Gulwant Kaur , Nazar Singh and Santhosh (supra) taking a different
view are based, was a case where the widow though acquired a limited
estate from her husband was not in possession on the date of coming
into force of the Hindu Succession Act and repossessed the property
thereafter. It was in this context that the Supreme Court held
Section 14(1) to be applicable holding that the word “possessed” has
to be given a wide meaning. This peculiar fact of the widow in
Jagannathan Pillai having acquired the property prior to the
commencement of the Hindu Succession Act was not noticed in the
subsequent judgments supra holding that possession of the property
under Section 14(1) could be before or after the commencement of the
Act. In none of the said judgments the provisions of the Hindu
Adoptions and Maintenance Act and the changes brought about
thereby in the right of Hindu female to maintenance were also noticed.
B. Section 14(1) carves out a difference between possession of the
property and acquisition of the property. Only the word "acquired" is
CS(OS) 1771/2012 Page 34 of 39
qualified with the words “whether before or after the commencement
of this Act”. Had the intention of the legislature been that a property
acquired by a female Hindu, whether before or after the
commencement of the Act, shall be held by her as full owner and not
as a limited owner, there was no need to carve out a distinction
between possession and acquisition of the property. From such
distinction made out and from the intentional omission to qualify the
word "possessed" with the words "whether before or after the
commencement of this Act" the legislative intent of, for applicability
of Section 14(1), possession on the date of commencement of the Act
being essential is quite explicit.
C. All statutes particularly those governing and regulating human
relations are dynamic in nature and their interpretation, inspite of
societal changes, cannot remain static. Law cannot be a fossil. The
Supreme Court in Union of India v. Raghubir Singh (1989) 2 SCC
754 emphasized the need for adapting the law to new urges in society
and quoted with approval the Holmesian aphorism that the "life of the
law has not been logic, it has been experience". It was further held
that in a developing society such as India, law does not assume its true
CS(OS) 1771/2012 Page 35 of 39
function when it follows a groove chased amidst a context which has
long since crumbled. Similarly in State of Punjab v. Devans Modern
Breweries Ltd. (2004) 11 SCC 26 it was held that a decision although
neither reversed nor overruled may cease to be law owing to changed
conditions and changed law, as reflected by the principle "cessante
ratione legis cessat ipsa lex". In Bhuwalka Steel Industries Ltd. v
Bombay Iron and Steel Labour Board (2010) 2 SCC 273 it was
reiterated that the trend of judicial opinion is that stare decisis is not a
dogmatic rule allergic to logic and reason; it is a flexible principle of
law operating in the province of precedents providing room to
collaborate with the demands of changing times dictated by social
needs, State policy and judicial conscience. V. Tulasamma is a
judgment of a different era, the guiding principle whereof was the
Shastric Hindu Law and to convert, the limited ownership rights of
women who till then were clearly discriminated against insofar as
ownership of property was concerned, to absolute right. However with
the changing times and changing relationships particularly between
husband and wife it is felt that to adopt the interpretation of Section
14(1) as in V. Tulasamma would be to the detriment of wives. If such
CS(OS) 1771/2012 Page 36 of 39
an interpretation were to be followed in today's times, husbands
having differences with their wives would hesitate from providing a
separate residence for the wife for the fear of losing all rights thereto
and the said residence after the lifetime of the wife going into the
hands of her heirs. Similarly husbands owning property would fear
bequeathing a life estate therein to their wives.
D. The additional reasoning given in Nazar Singh of acquisition of
the property under a compromise being different from acquisition of
property under a Will owing to the Will being not mentioned in
Section 14(1), as aforesaid does not appear to be correct.
E. The plaintiffs in the Memorandum of Family Settlement
expressly agreed that the plaintiffs no.2&3 shall cease to have any
right of residence in the flat after their marriage and will not claim any
interest, right or title whatsoever in the flat and that the plaintiff no.1
shall also cease to have any right of residence in the flat if she re-
marries or resides at another place and that the right of residence of
the plaintiff no.1 in the said flat was for her life time only. The
plaintiffs further agreed that they shall not claim any right in future
over any property of the defendant no.2. The plaintiffs further agreed
CS(OS) 1771/2012 Page 37 of 39
that after the marriage of the plaintiffs no.2&3 it will be the defendant
no.2 who would be entitled to the rent of the third floor of the flat.
The plaintiffs presented the said Memorandum of Family Settlement
before the Court and before the Court also undertook to abide by the
terms & conditions of the Settlement and not to file any claim,
petition, complaint or other proceeding against the defendant in any
Court of law. I have wondered whether not the very institution of the
present suit is in violation of the undertaking given by the plaintiffs to
the Court at the time of culmination of the earlier litigation and
whether the plaintiffs are entitled to do so. Though undoubtedly in
some of the judgments cited by the senior counsel for the plaintiffs
also the decrees had been passed in terms of the agreements entered
into (in Santhosh supra it was held that consent decrees must be
construed having regard to the well settled legal position) but at the
same time the Courts have held that such Family Settlements are to be
honoured, upheld and enforced. It is not as if in the earlier litigation
between the plaintiffs and the defendant no.2 any right of maintenance
or residence of the plaintiffs against the defendant no.2 had been
established. The matter was still at large. It is well-nigh possible that
CS(OS) 1771/2012 Page 38 of 39
ultimately the plaintiffs may not have succeeded in any claim for
maintenance against the defendant no.2. It would be against equity, in
my opinion, to in such circumstances permit the plaintiffs to act in
contravention of the Family Settlement and the undertaking given by
them to the Court in the earlier proceedings.
36. I am therefore unable to find the plaintiffs to be entitled to the relief of
declaration sought or to other consequential reliefs. The suit has to thus fail
and is dismissed. The statement of the defendant no.2 as recorded
hereinabove is however accepted and he is ordered to be bound by the
statement given to the Court to not act in contravention of the Memorandum
of Family Settlement and is cautioned of the consequences of breach of such
assurance given to the Court.
In the circumstances, no costs.
Decree sheet be prepared.
RAJIV SAHAI ENDLAW, J.
JULY 18, 2014
pp/gsr
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