VIPIN KUMAR JAIN vs. RAM BABU JAIN & ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ RFA (OS) No. 159/2014

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Reserved on: 14 July, 2017
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% Date of Decision: 31 July, 2017

VIPIN KUMAR JAIN ..... Appellant
Through Mr. T.K. Ganju, Sr. Advocate with
Mr. Manik Ahluwalia, Mr. Abhishek
Bhardwaj and Ms. Swati R.Singh,
Advocates
versus
RAM BABU JAIN & ORS ..... Respondents
Through Mr. J.P.Sengh, Sr.Advocate with
Mr. Girish Aggarwal
Ms. Manisha Mehta & Mr. Vaibhav
Jain, Advocates
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAVIN CHAWLA



SANJIV KHANNA, J.
This intra-Court appeal under Section 96 read with Order XLI of the
Code of Civil Procedure, 1908 and Section 10 of Delhi High Court Act
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impugns order/judgment dated 25 September, 2014, allowing the
application under Order XII Rule 6 of the aforesaid Code and the
preliminary decree holding that each of the parties i.e. plaintiff Nos.1, 2, 3,
the respondents before us, and defendant No.1, the appellant before us, are
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entitled to 1/4 share in flat No.C-4/31 at Rajasthali Apartments, Madhuban
Chowk, Pitampura, Delhi.
2. The appellant and the three respondents are sons of late Ratan Lal
Jain, who was the owner of the aforesaid flat and had executed the Will
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dated 6 March, 2002. The said Will is undisputed and is not under
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challenge. Ratan Lal Jain had expired on 8 December, 2003 and was
survived by the present appellant, the three respondents and wife-Shanti
Devi Jain.
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3. Shanti Devi Jain died on 10 May, 2011. After the death of Shanti
Devi Jain, the respondents filed CS (OS) No.2370/2013, claiming that each
one of the four siblings are entitled to ¼ share in the flat/property mentioned
above. The appellant, however, claims that he is the sole and exclusive
owner of the said flat relying upon the “Will” from late Shanti Devi Jain,
which is in Form No.17 i.e. nomination form for transfer of share and
interest after death furnished to the cooperative society. Whether the said
Form No.17 is a valid Will etc. are not the subject matter of the present
appeal or the impugned order. It is the subject matter of Test Case No.86 of
2011, which is pending.
4. Subject matter of the present appeal is clause (a) of the Will of late
Ratan Lal Jain, which is as under:-
“That so long as I am alive, I shall remain the sole and absolute
owner of the aforesaid properties both moveable and
immoveable and after my death the aforesaid properties shall
go and devolve in the following manner:-

a) Residential Flat bearing No.C-4/31, situated at Rajasthali
Apartments, Madhuban Chowk, Pitam Pura, Delhi-110034 and
all other properties both moveable and immoveable belonging
to me at the time of my death in favour of my wife Smt. Shanti
Devi Jain for her life time only, who shall have the life interest
in the aforesaid residential flat, but she shall have no right to
sell, transfer or alienate the same in any manner and after her
death the said property shall go and evolve on all my four sons
namely Ram Baboo Jain, Omprakash Jain, Vipin Kumar Jain
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and Pavan Kumar Jain, who shall be the sole and absolute
owners thereof in equal shares and shall have full right to hold,
use, enjoy and transfer the same in any manner, they like and
my other heirs and successor shall have no right, title, interest,
claim or concern of any nature whatsoever with the said flat.
Since my three sons namely Ram Baboo Jain, Omprakash Jain
and Pavan Kumar Jain are already staying out of station and
they shall have full right to stay in the aforesaid flat temporarily
or permanently with their families at any time. In case if my
wife said Smt. Shanti Devi Jain predecease me then the said
property shall go and devolve on all my four sons aforesaid.”

The contention of the respondents which has been accepted in the impugned
order is that late Shanti Devi Jain, the mother was given a limited estate or
life interest with no right to sell, transfer or alienate the property. After her
death, the property was to devolve on the appellant and the three
respondents in equal share. The appellant claims that this life interest in
favour of the late mother-Shanti Devi Jain made her the absolute owner of
the flat and, therefore, the bequest made by her in Form No.17 in favour of
the appellant would be operative. The bequest made by late Ratan Lal Jain
in favour of the appellant and the three respondents in equal share would be
inoperative and invalid in view of Section 14 of the Hindu Succession Act,
1956 (Act, for short).
5. Section 14 of the Act deals with inheritance of property by a female
Hindu and reads 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 this Act, shall be held by her
as full owner thereof and not as a limited owner.
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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.”

Sub-section (1) of Section 14 states that female Hindu shall be absolute or
full owner and not limited owner of any property possessed by her, whether
acquired before or after commencement of the Act. Explanation states that
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. Sub-section (2) of
Section 14 states that 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
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the gift, will or other instrument or the decree, order or award etc. which
prescribes a restricted estate in such property.
6. The difference between the two sub-sections has been a subject
matter of several decisions of the Supreme Court wherein it has been
uniformly held that where a female Hindu has a pre-existing right in the
property i.e. it is a jus ad rem not jus in rem, sub-section (2) of Section 14
will not apply. Therefore when and where the female Hindu has a pre-
existing right in property the limited right so granted would automatically
enlarge into an absolute right by virtue of sub-section (1) of Section 14 of
the Act. The restriction and limited estate granted by the document etc
would have to be ignored. Thus, existence or absence of a pre-existing right
of the female Hindu is the determinative check and test which answers the
conundrum whether section 14 (1) or section 14 (2) would apply in a given
case. The Explanation has been couched in the widest possible terms and
must be liberally construed in favour of the female Hindus so as to advance
the object of the Act and to promote the socio-economic ends.
7. To this extent there is no dispute on understanding the difference
between sub-section (1) and (2) of section 14 of the Act. However there is a
variance and divergent opinion on how the "pre-existing right" of a Hindu
female can be established under sub-section (1) of section 14 to exclude the
operation of sub-section (2) of section 14 of the Act. This difference of
opinion stems from the right of maintenance given under the Hindu law to a
female Hindu which is recognised and accepted since time immemorial. The
right of maintenance flows from the social and temporal relationship
between the husband and the wife. Way back in 1977 in V . Tulasamma
and Ors. Vs. Sesha Reddy (1977) 3 SCC 99, the three-Judge Bench of the
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Supreme Court had elucidated on the right of a female Hindu to
maintenance and held it to be a pre-existing right, and with reference to
Section 14 of the Act had observed:
“ 20 . Thus on a careful consideration and detailed analysis of the
authorities mentioned above and the Shastric Hindu Law on the
subject, the following propositions emerge with respect to the
incidents and characteristics of a Hindu woman's right to
maintenance:

„(1) that a Hindu woman's right to maintenance is a personal
obligation so far as the husband is concerned, and it is his duty to
maintain her even if he has no property. If the husband has property
then the right of the widow to maintenance becomes an equitable
charge on his property and any person who succeeds to the property
carries with it the legal obligation to maintain the widow;

(2) though the widow's right to maintenance is not a right to
property but it is undoubtedly a pre-existing right in property i.e. it
is a jus ad rem not jus in rem and it can be enforced by the widow
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;

(3) that the right of maintenance is a matter of moment and is of
such importance that even if the joint property is sold and the
purchaser has notice of the widow's right to maintenance, the
purchaser is legally bound to provide for her maintenance;

(4) that the right to maintenance is undoubtedly a pre-existing right
which existed in the Hindu law long before the passing of the 1937
Act or the 1946 Act, and is, therefore, a pre-existing right;

(5) that the right to maintenance flows from the social and temporal
relationship between the husband and the wife by virtue of which
the wife becomes a sort of co-owner in the property of her husband,
though her co-ownership is of a subordinate nature; and
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(6) that where a Hindu widow is in possession of the property of her
husband, she is entitled to retain the possession in lieu of her
maintenance unless the person who succeeds to the property or
purchases the same is in a position to make due arrangements for her
maintenance.

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“ 62 . We would now like to summarise the legal conclusions which
we have reached after an exhaustive considerations of the authorities
mentioned above on the question of law involved in this appeal as to
the interpretation of Sections 14(1) and (2) of the 1956 Act. These
conclusions may be stated thus:
„(1) The Hindu female's right to 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 recognised and enjoined by pure Shastric Hindu Law and has been
strongly stressed even by the earlier Hindu jurists starting from
Yajnavalkya to Manu. Such a right may not be a right to property
but it is a right against property and the husband has a personal
obligation to maintain his wife and if he or the family has property,
the female has the legal right to be maintained therefrom. If a charge
is created for the maintenance of a female, the said right becomes a
legally enforceable one. At any rate, even without a charge the claim
for maintenance is doubtless a pre-existing right so that any transfer
declaring or recognising such a right does not confer any new title
but merely endorses or confirms the pre-existing rights.
(2) Section 14(1) and the Explanation thereto have been couched in
the widest possible terms and must be liberally construed in favour
of the females so as to advance the object of the 1956 Act and
promote the socio-economic ends sought to be achieved by this
long-needed legislation.
(3) Sub-section (2) of Section 14 is in the nature of a proviso and
has a field of its own without interfering with the operation of
Section 14(1) materially. The proviso should not be construed in a
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manner so as to destroy the effect of the main provision or the
protection granted by Section 14(1) or in a way so as to become
totally inconsistent with the main provision.
(4) Sub-section (2) of Section 14 applies to instruments, decrees,
awards, gifts, etc. which create independent and new titles in favour
of the females for the first time and has no application where the
instrument concerned merely seeks to confirm, endorse, declare or
recognise pre-existing rights. In such cases a restricted estate in
favour of a female is legally permissible and Section 14(1) will not
operate in this sphere. Where, however, an instrument merely
declares or recognises a pre-existing right, such as a claim to
maintenance or partition or share to which the female is entitled, the
sub-section has absolutely no application and the female's limited
interest would automatically be enlarged into an absolute one by
force of Section 14(1) and the restrictions placed, if any, under the
document would have to be ignored. Thus, where a property is
allotted or transferred to a female in lieu of maintenance or a share
at partition, the instrument is taken out of the ambit of sub-section
(2) and would be governed by Section 14(1) despite any restrictions
placed on the powers of the transferee.
(5) The use of express terms like „property acquired by a female
Hindu at a partition‟, „or in lieu of maintenance‟, „or arrears of
maintenance‟, etc. in the Explanation to Section 14(1) clearly makes
sub-section (2) inapplicable to these categories which have been
expressly excepted from the operation of sub-section (2).
(6) The words „possessed by‟ used by the legislature in Section
14(1) are of the widest possible amplitude and include the state of
owning a property even though the owner is not in actual or physical
possession of the same. Thus, where a widow gets a share in the
property under a preliminary decree before or at the time when the
1956 Act had been passed but had not been given actual possession
under a final decree, the property would be deemed to be possessed
by her and by force of Section 14(1) she would get absolute interest
in the property. It is equally well settled that the possession of the
widow, however, must be under some vestige of a claim, right or
title, because the section does not contemplate the possession of any
rank trespasser without any right or title.
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(7) That the words „restricted estate‟ used in Section 14(2) are wider
than limited interest as indicated in Section 14(1) and they include
not only limited interest, but also any other kind of limitation that
may be placed on the transferee.”
8. Similar view was taken in case of Nazar Singh Vs. Jagjit Kaur
(1996) 1 SCC 35 in which it has been observed that:-
“ 9 . Section 14 and the respective scope and ambit of sub-sections
(1) and (2) has been the subject-matter of a number of decisions
of this Court, the most important of which is the decision in V.
Tulasamma v. Sesha Reddy [ V. Tulasamma v. Sesha Reddy ,
(1977) 3 SCC 99 : AIR 1977 SC 1944] . The principles
enunciated in this decision have been reiterated in a number of
decisions later but have never been departed from. According to
this decision, sub-section (2) is confined to cases where property
is acquired by a female Hindu for the first time as a grant without
any pre-existing right under a gift, will, instrument, decree, order
or award, the terms of which prescribe a restricted estate in the
property. It has also been held that where the property is acquired
by a Hindu female in lieu of right of maintenance inter alia, it is
in virtue of a pre-existing right and such an acquisition would not
be within the scope and ambit of sub-section (2) even if the
instrument, decree, order or award allotting the property to her
prescribes a restricted estate in the property. Applying this
principle, it must be held that the suit lands, which were given to
Harmel Kaur by Gurdial Singh in lieu of her maintenance, were
held by Harmel Kaur as full owner thereof and not as a limited
owner notwithstanding the several restrictive covenants
accompanying the grant. [Also see the recent decision of this
Court in Mangat Mal v. Punni Devi [ Mangat Mal v. Punni Devi ,
(1995) 6 SCC 88] where a right to residence in a house property
was held to attract sub-section (1) of Section 14 notwithstanding
the fact that the grant expressly conferred only a limited estate
upon her.] According to sub-section (1), where any property is
given to a female Hindu in lieu of her maintenance before the
commencement of the Hindu Succession Act, such property
becomes the absolute property of such female Hindu on the
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commencement of the Act provided the said property was
„possessed‟ by her. Where, however, the property is given to a
female Hindu towards her maintenance after the commencement
of the Act, she becomes the absolute owner thereof the moment
she is placed in possession of the said property (unless, of course,
she is already in possession) notwithstanding the limitations and
restrictions contained in the instrument, grant or award
whereunder the property is given to her . This proposition follows
from the words in sub-section (1), which insofar as is relevant
read: „Any property possessed by a female Hindu … after the
commencement of this Act shall be held by her as full owner and
not as a limited owner‟. In other words, though the instrument,
grant, award or deed creates a limited estate or a restricted estate,
as the case may be, it stands transformed into an absolute estate
provided such property is given to a female Hindu in lieu of
maintenance and is placed in her possession. So far as the
expression „possessed‟ is concerned, it too has been the subject-
matter of interpretation by several decisions of this Court to
which it is not necessary to refer for the purpose of this case.”

9. Following this view it has also been observed that reference to right
to maintenance need not be specifically stated and written in the Will for the
said right already exists. In Balwant Kaur and Anr. Vs. Chanan Singh &
Ors. , (2000) 6 SCC 310, it was observed:-

Harpal Singh , (1989) 3 SCC 572, and Gulwant Kaur Vs. Mohinder Singh ,
RFA(OS)159/2014 Page 10 of 15



(1987) 3 SCC, 674, on the question of antecedent right and acquisition
traceable to it, to hold that in such cases sub-section (1) of Section 14 and
not sub-section (2) would be applicable. In the case of Thota
Shesharathamma Vs. Thota Manikyamma (1991) 4 SCC 312, a clear,
categoric, and binding dictum is found in the following words:-
“There need be no express recital even in the will of the
enjoyment of the property devised under the will in lieu of
maintenance as a limited owner for her life. Even if so
mentioned, it would be a reflection or restatement of the law
existing as in 1932 when the will was executed. The respondent,
admittedly, being a widow of the testator who, under Shastric law
was obligated to provide maintenance of his wife, and it being
personal obligation, the property bequeathed was in lieu of
maintenance for her life. She was in enjoyment of the property
and beneficial interest therein stood vested in her.”

10. On the other hand we have the judgement of Supreme Court in Mst.
Karmi Vs. Amru and Ors ., (1972) 4 SCC 86, which appears to be at
variance with the aforesaid view. Decision and ratio of Karmi (supra) is also
voiced in Sadhu Singh Vs. Gurdwara Sahi Narike , (2006) 8 SCC 75, and
then in Shivdev Kaur Vs. R.S. Grewal , (2013) 4 SCC 636. The last decision
observes as under:
"14. Thus, in view of the above, the law on the issue can be
summarised to the effect that if a Hindu female has been given
only a “life interest”, through will or gift or any other document
referred to in Section 14 of the 1956 Act, the said rights would
not stand crystallised into absolute ownership as interpreting the
provisions to the effect that she would acquire absolute
ownership/title into the property by virtue of the provisions of
Section 14(1) of the 1956 Act, the provisions of Sections 14(2)
and 30 of the 1956 Act would become otiose. Section 14(2)
carves out an exception to the rule provided in sub-section (1)
RFA(OS)159/2014 Page 11 of 15

(supra) was referred to and commented upon in Thota Shesharathamma
(supra) in the following words:
“10. The case of Mst Karmi v. Amru [(1972) 4 SCC 86 : AIR
1971 SC 745] on which a reliance has now been placed by
learned counsel for the appellant and petitioners was also decided
by a bench of three Judges Hon. J.C. Shah, K.S. Hegde and A.N.
Grover, JJ. It may be noted that two Hon'ble Judges, namely, J.C.
Shah and A.N. Grover were common to both the cases. In Mst
Karmi v. Amru [(1972) 4 SCC 86 : AIR 1971 SC 745] , one
Jaimal died in 1938 leaving his wife Nihali. His son Ditta pre-
deceased him. Appellant in the above case was the daughter of
Ditta and the respondents were collaterals of Jaimal. Jaimal first
executed a will dated December 18, 1935 and by a subsequent
will dated November 13, 1937 revoked the first will. By the
second will a life estate was given to Nihali and thereafter the
property was made to devolve on Bhagtu and Amru collaterals.
On the death of Jaimal in 1938, properties were mutated in the
name of Nihali. Nihali died in 1960/61. The appellant Mst Karmi
claimed right on the basis of a will dated April 25, 1958 executed
by Nihali in her favour. It was held that the life estate given to a
widow under the will of her husband cannot become an absolute
estate under the provisions of the Hindu Succession Act.
Thereafter, the appellant cannot claim title to the properties on the
basis of the will executed by the widow Nihali in her favour. It is
a short judgment without adverting to any provisions of Section
14(1) or 14(2) of the Act. The judgment neither makes any
mention of any argument raised in this regard nor there is any
mention of the earlier decision in Badri Pershad v. Smt Kanso
Devi [(1969) 2 SCC 586 : (1970) 2 SCR 95 : AIR 1970 SC 963] .
The decision in Mst Karmi [(1972) 4 SCC 86 : AIR 1971 SC 745]
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cannot be considered as an authority on the ambit and scope of
Section 14(1) and (2) of the Act.”
12. The decision in Karmi (supra) , Sadhu Singh (supra) , Shiv Dev Kaur
(supra) , and other set of decisions expressing the contra view were referred
to and considered in Jupudy Pardha Sarathy Vs. Pentapati Ram Krishna
and Ors. , (2016) 2 SCC 56. The Supreme Court preferred to follow the
dictum pronounced in the case of V. Tulsamma (supra). On the respect of
antecedent right in Jupudy Pardha Sarathy (supra) it has been observed:-

RFA(OS)159/2014 Page 13 of 15

opinion is the binding precedent and we cannot therefore refer to and rely
upon the ratio in Karmi (supra) , Sadhu Singh (supra) , and Shiv Dev Kaur
(supra) . We have referred to the said decisions as we find that in the present
case the appellant had not claimed and pleaded pre-existing right of Shanti
Devi Jain, who had acquired rights in the property under clause (a) of the
Will of late Ratan Lal Jain. The Will of late Ratan Lal Jain is also silent.
However, in view of law laid down in Jupudy Pardha Sarathy (supra), such
pre-existing right, in terms of sub-section (1) of section 14 of the Act, would
have made late Shanti Devi Jain the absolute owner of the said property. In
these circumstances we do not think that the Single Judge was right in
allowing the application under Order XII, Rule 6 of the Code and passing
the preliminary decree, defining the shares of the parties as 1/4th each.
14. The preliminary decree in the present case cannot be passed without
there being adjudication and decision in Test Case No.86 of 2011 which
relates to the purported Will of Shanti Devi Jain. The preliminary decree of
partition passed is accordingly set aside. We would also clarify that
notwithstanding the present order, if there is a change and declaration of law
by the Supreme Court which is at variance to the view/ratio expressed
above, before the final pronouncement and decision by the Single Judge on
remand, the same would be considered and applied.
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15. With aforesaid observations, we allow the present appeal and set
aside the impugned order allowing I.A. No.11910/2014 and the preliminary
decree passed in CS (OS) 2370/2013. No Costs. List before the Single Judge
on 28.8.2017 .






(SANJIV KHANNA)
JUDGE



(NAVIN CHAWLA)
JUDGE
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JULY 31 , 2017
NA/ssn

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