Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4215 OF 2008
(Arising out of S.L.P. (C) No.19455 of 2006)
G. Rama ...Appellant
Versus
T.G. Seshagiri Rao (D) by Lrs. ...Respondents
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned
Single Judge of the Karnataka High Court allowing the
appeal filed in terms of Section 96 read with Order XLI of
the Code of Civil Procedure, 1908 (in short the ‘C.P.C’).
3. Background facts in a nutshell are as follows:
The respondent T.G. Seshagiri Rao who after his death
has been substituted by his legal heirs, had filed a suit with
inter alia prayer to declare him as an absolute owner of the
plaint schedule property and to direct the defendant
(appellant herein) to deliver vacant possession of the suit
schedule property. The suit property is a residential house
th
bearing No.257/1, 5 Cross, Kempegowda Nagar, Bangalore
measuring East West 15’ x 5’ and north south 35’.
4. The case set out by the parties is as follows:
The schedule premises was purchased by Kate T.G.
Seshagiri Rao along with his uncle one T.K. Vasudeva Murthy
under a registered sale deed dated 5.6.1963 for a valuable
sale consideration of Rs.20,000/- and that his uncle T.K.
Vasudeva Murthy relinquished his right, title and interest
which he had over the suit schedule property in favour of the
plaintiff under a registered release deed dated 17.4.1989 and
by virtue of the release deed, the plaintiff became the absolute
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owner of the suit schedule property. The defendant is the
daughter in law of T.K. Vasudeva Murthy who lost her
husband in an accident and that she was permitted to reside
in the house as a licensee.
5. The suit was filed seeking possession, as the defendant
refused to vacate the premises in spite of repeated requests
and a legal notice.
6. The defendant contested the case. According to her written
statement, Sri T.K. Vasudeva Murthy has no right to
execute the sale deed and that Vasudeva Murthy purchased
the suit schedule property along with the plaintiff out of the
joint family nucleus and that joint family had consisted of
Vasudeva Murthy and his son Venkata Krishna, the
deceased husband of the defendant. According to her, after
the death of her husband, she and her daughter Soumya
were also having equal rights along with Vasudeva Murthy.
It is her further case that she has been residing in the
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schedule premises not as a licensee but in her own right as
a daughter-in-law and that the property was given to her
by her in-laws till the marriage of her daughter Soumya and
to enjoy the same for life with an independent title. She
also contended that she was put in possession of the suit
schedule property by Vasudeva Murthy with an
understanding that she would remain in possession in lieu
of maintenance and that she has acquired ownership as per
the provisions of Section 14 of the Hindu Succession Act,
1956 (in short the ‘Act’).
7. Based on the above pleadings, the following issues were
framed:
1. Whether the plaintiff proves that he is the absolute
owner of the suit schedule property as on the date of
filing of the suit?
2. Whether the plaintiff further proves that he is entitled
to the delivery of vacant possession of the schedule
property from the defendant?
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3. Whether the plaintiff is entitled to past and future
mesne profits as claimed?
4. Whether the defendant proves that she has perfected
her title to the suit schedule property by way of
adverse possession?
5. Whether the court fee paid is insufficient?
6. Whether the defendant proves that she has got a legal
right to the extent of her share in the suit schedule
property?
7. To what order and decree?
8. The plaintiff examined himself as PW-1. He relied upon
Exs.P1 to P9. The defendant examined himself as DW 1. She
did not produce any documents before the trial court. The
trial Court on appreciation of the evidence adduced by the
parties, held issues 1 and 2 in the negative and further held
that the plaintiff is entitled for undivided half share in the suit
schedule property and entitled for partition and separate
possession of his half share. In respect of issue No. 3, it was
held that “entitled for future mesne profits from the date of the
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suit till the date of possession in respect of his half share”.
Issue No. 4 was answered in the negative. Issue No. 5 was
held in the affirmative. Issue No. 6 in affirmative holding that
the defendant is entitled to claim half share. Ultimately, the
suit of the plaintiff was decreed in part declaring that he has
become the absolute owner of the undivided half share and
entitled for partition and separate possession of his half share.
The said judgment and decree was called in question before
the High Court.
9. The High Court found that the basic question related to
Section 14(1) of the Act. It was noted that a suit OS No. 4949
of 1991 for partition was filed by the defendant, appellant
herein. It was held that without any material, the trial court
held that defendant had become absolute owner pursuant to
Section 14(1) of the Act.
10. Learned counsel for the appellant submitted that the
true scope and ambit of Section 14 of Act were lost sight of by
the High Court.
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11.
It is pointed out that the property in question was given
to her in lieu of maintenance and therefore she had to
shift from the main portion of the building to the out
house. It is pointed out that the claim is against the
husband and not qua recovering lost property. Strong
reliance is placed on a decision of this Court in V.
Tulasamma and Ors. v. Sesha Reddy (d) by Lrs.(1977 (3)
SCC 99).
12. It is pointed out that after the death of her husband,
attempt of her father-in-law and the original plaintiff was to
deprive her of the property over which she had legitimate
ownership.
13. It is pointed out that she was married to T.V.
Venkatakrishna on 4.7.1979 and her husband died on
11.7.1980 and the child was born to her on 9.2.1981. The
release deed was purportedly executed by her father-in-law in
1989. The admitted position is that her father-in-law wanted
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to deprive her of the legitimate rights and for that purpose
release deed was executed.
14. In response, learned counsel for the respondent
submitted that the factual scenario needs to be noted. On
5.6.1963 the original plaintiff Seshagiri and Vasudeva Murthy
who was his uncle and the father-in-law of the defendant/
appellant purchased the property jointly. They were partners
in a partnership firm which was dissolved on 16.8.1971. On
8.3.1981, portion of the land purchased jointly by Sheshagiri
and Vasudeva Murthy was sold to one Puttann. There was no
challenge to it. On 17.4.1989 Vasudeva executed the release
deed for consideration of 20,000/- in favour of Sheshagiri. On
4.1.1990 the suit relating to the present dispute i.e. OS No.
188 of 1990 was filed. Initially in the written statement filed,
defendant took the stand that the property in question was
joint family property and claimed half share. Subsequently,
the written statement was amended. Plea was taken that she
was permitted to stay in lieu of maintenance and so the
property was of absolute property and in terms of Section 14
(1) of the Act. On 19.8.1991 O.S. No. 4949 of 1991 i.e. suit for
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partition was filed claiming the partition. There is no
challenge to the release deed dated 17.4.1989 in the suit for
partition. Appellant took the stand that it was a joint family
property and, therefore, he had half share. No specific issue
regarding the nature of the property was framed. There was
no issue relating to Section 14(1) of the Act and there was also
no evidence led in that regard. Strangely the trial court
treated the suit as one for partition though the suit was for
declaration. There was no counter-claim filed by defendant-
Rama. It is pointed out that Vasudeva Murthy was alive when
the trial of the suit proceeded. Before the High Court an
undertaking was given to vacant the premises which was
accepted subject to filing of an undertaking which was in fact
filed on 21.5.2004 after delivery of the judgment on 7.1.2004.
Two years after a review petition was filed on 10.8.2006 and
the same was withdrawn on 30.8.2006.
15. As rightly contended by learned counsel for the
respondent there was no issue framed regarding Section 14 of
the Act. Even no evidence was led specifically to show that in
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lieu of maintenance she was permitted to possess the
property.
16. It is relevant to note that the trial court made a reference
to Section 19 of Hindu Adoption and Maintenance Act, 1956
(in short the ‘Maintenance Act’). Unfortunately the High Court
did not take note of sub section (2) of Section 19 of the
Maintenance Act.
17. Section 14(1) of the Act reads as follows:
"14. (1) Any property possessed by a female
Hindu, whether acquired before or after the
commencement of this Act, shall be held by
her as full owner thereof and not as a limited
owner.
Explanation. - In this sub-section, "property"
includes both movable and immovable
property acquired by a female Hindu by
inheritance or devise, or at a partition, or in
lieu of maintenance or arrears of maintenance,
or by gift from any person, whether a relative
or not, before, at or after her marriage, or by
her own skill or exertion, or by purchase or by
prescription, or in any other manner
whatsoever, and also any such property held
by her as stridhana immediately before the
commencement of this Act.
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(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.”
18. Section 19 of the Maintenance Act reads as follows:
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Maintenance of widowed daughter-in-law.- (1) A Hindu
wife, whether married before or after the commencement
of this Act, shall be entitled to be maintained after the
death of her husband by her father-in-law.
Provided and to the extent that she is unable to maintain
herself out of her own earnings or other property or,
where she has no property of her own, is unable to
obtain maintenance-
from the estate of her husband or her father or
mother, or
from her son or daughter, if any, or his or her
estate.
(2) Any obligation under sub-section (1) shall not be
enforceable if the father-in-law has not the means to do
so from any coparcenary property in his possession out
of which the daughter-in-law has not obtained any
share, and any such obligation shall case on the re-
marriage of the daughter-in-law.
19. In Sadhu Singh v. Gurdwara Sahib Narike and Ors.
[2006(8) SCC 75] it was inter alia observed as follows:
“5. In the case on hand, since the properties
admittedly were the separate properties of
Ralla Singh, all that Isher Kaur could claim de
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hors the will, is a right to maintenance and
could possibly proceed against the property
even in the hands of a transferee from her
husband who had notice of her right to
maintenance under the Hindu Adoptions and
Maintenance Act. No doubt, but for the devise,
she would have obtained the property
absolutely as an heir, being a Class I heir. But,
since the devise has intervened, the question
that arises has to be considered in the light of
this position.
xxx xxx xxx
11. On the wording of the section and in the
context of these decisions, it is clear that the
ratio in V. Tulasamma v. V. Shesha Reddi
(supra) has application only when a female
Hindu is possessed of the property on the date
of the Act under semblance of a right, whether
it be a limited or a pre-existing right to
maintenance in lieu of which she was put in
possession of the property. The Tulasamma
ratio cannot be applied ignoring the
requirement of the female Hindu having to be
in possession of the property either directly or
constructively as on the date of the Act,
though she may acquire a right to it even after
the Act. The same is the position in Raghubar
Singh v. Gulab Singh [1998 (6) SCC 314]
wherein the testamentary succession was
before the Act. The widow had obtained
possession under a Will. A suit was filed
challenging the Will. The suit was
compromised. The compromise sought to
restrict the right of the widow. This Court held
that since the widow was in possession of the
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property on the date of the Act under the will
as of right and since the compromise decree
created no new or independent right in her,
Section14(2) of the Act had no application and
Section 14(1) governed the case, her right to
maintenance being a pre-existing right. In
Mst. Karmi v. Amru and Ors. (1972 (4) SCC
86) the owner of the property executed a Will
in respect of a self-acquired property. The
testamentary succession opened in favour of
the wife in the year 1938. But it restricted her
right. Thus, though she was in possession of
the property on the date of the Act, this Court
held that the life estate given to her under the
Will cannot become an absolute estate under
the provisions of the Act. This can only be on
the premise that the widow had no pre-
existing right in the self-acquired property of
her husband. In a case where a Hindu female
was in possession of the property as on the
date of the coming into force of the Act, the
same being bequeathed to her by her father
under a will, this Court in Bhura and Ors. v.
Kashi Ram [(1994) 2 SCC 111]after finding on
a construction of the will that it only conferred
a restricted right in the property in her, held
that Section 14(2) of the Act was attracted and
it was not a case in which by virtue of the
operation of Section 14 (1) of the Act, her right
would get enlarged into an absolute estate.
This again could only be on the basis that she
had no pre-existing right in the property. In
Sharad Subramanyan v. Soumi Mazumdar
and Ors. (JT 2006 (11) SC 535) this Court
held that since the legatee under the will in
that case, did not have a pre-existing right in
the property, she would not be entitled to rely
on Section 14 (1) of the Act to claim an
absolute estate in the property bequeathed to
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her and her rights were controlled by the
terms of the will and Section14 (2) of the Act.
This Court in the said decision has made a
survey of the earlier decisions including the
one in Tulasamma. Thus, it is seen that the
antecedents of the property, the possession of
the property as on the date of the Act and the
existence of a right in the female over it,
however limited it may be, are the essential
ingredients in determining whether Sub-
section (1) of Section 14 of the Act would
come into play. What emerges according to us
is that any acquisition of possession of
property (not right) by a female Hindu after the
coming into force of the Act, cannot normally
attract Section 14 (1) of the Act. It would
depend on the nature of the right acquired by
her. If she takes it as an heir under the Act,
she takes it absolutely. If while getting
possession of the property after the Act, under
a devise, gift or other transaction, any
restriction is placed on her right, the
restriction will have play in view of Section 14
(2) of the Act.
12. When a male Hindu dies possessed of
property after the coming into force of the
Hindu Succession Act, his heirs as per the
schedule, take it in terms of Section 8 of the
Act. The heir or heirs take it absolutely. There
is no question of any limited estate descending
to the heir or heirs. Therefore, when a male
Hindu dies after 17.6.1956 leaving his widow
as his sole heir, she gets the property as class
I heir and there is no limit to her estate or
limitation on her title. In such circumstances,
Section 14 (1) of the Act would not apply on
succession after the Act, or it has no scope for
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operation. Or, in other words, even without
calling in aid Section 14 (1) of the Act, she gets
an absolute estate.”
20. In Sharad Subramanyan v. Soumi Mazumdar & Ors.
[2006(8) SCC 91] this court observed as follows:
“Mr. Bhaskar P. Gupta, learned Senior
Counsel for the respondents, rightly
distinguished all these cases, as it was clearly
proved therein, that the properties had been
given to a female Hindu, either in recognition
of or in lieu of her right to maintenance under
the Shastric Hindu Law or under the Hindu
Adoption and Maintenance Act, 1956.
Consequently, these were instances where the
dispositions of property, albeit as a limited
estate, would blossom into a full interest by
reason of Sub-section (1) of Section 14 of the
Act.
Learned Counsel further contended that
there is no absolute rule that all properties
demised to a female Hindu were necessarily in
recognition of or in lieu of her right to
maintenance. It was possible, even after the
Act came into force, to create a limited estate
by reason of a gift or will. Such a situation
would fall within the ambit of Sub-section (2)
of Section 14 of the Act as long as it was not in
recognition of or in lieu of a right to
maintenance under the Shastric Hindu Law or
under a statute. Learned Senior Counsel relied
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on Section 30 of the Act, which recognises the
right of a Hindu to dispose of self-acquired
property by Will. Mr. Gupta relied on the
judgment of this Court in Bhura and Ors. v.
Kashi Ram (1994 (2) SCC 111) which was also
a case of limited estate conferred on a female
Hindu by a Will. This Court held that, upon a
proper construction of the Will, the bequeathal
in favour of the female Hindu was clearly
indicative of:
...the testator's intention of only
creating a life interest in her and
nothing more and the various
expressions used therein are
indicative of and are reconcilable
only with the hypothesis that the
testator was creating an estate in
favour of ... (the female Hindu) ... only
for her lifetime and not an absolute
estate. [(1994)2 SCC 111]
Thus, in view of the fact that there were
no indications, either in the Will or externally,
to indicate that the property had been given to
the female Hindu in recognition of or in lieu of
her right to maintenance, it was held that the
situation fall within the ambit of Sub-section
(2) of Section 14 of the Act and that the
restricted life estate granted to the female
Hindu could not be enlarged into an absolute
estate. Learned Counsel for the respondents
relied strongly on this judgment and
contended that there was no proposition of law
that all dispositions of property made to a
female Hindu were necessarily in recognition
of her right to maintenance whether under the
Shastric Hindu Law or under the statutory
law. Unless the said fact was independently
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established to the satisfaction of the court, the
grant of the property would be subject to the
restrictions contained therein, either by way of
a transfer, gift or testamentary disposition.
Learned Counsel also distinguished the three
cases cited by the learned Counsel for the
appellant that in each, the circumstances
clearly indicated that the testamentary
disposition was in lieu of the right of
maintenance of the female Hindu. We think
that this contention is well merited and needs
to be upheld.”
21. In Eramma v. Verrupanna and Ors. [1966 (2) SCR 626] it
was observed by this Court that mere possession does not
automatically attract Section 14 of the Act.
22. As noted above, no issue was framed and also no
evidence was led to substantiate the plea that the appellant
was occupying the premises in lieu of maintenance. In view of
this factual position and the proposition of law referred to
above, inevitable conclusion is that the appeal is without
merit, deserves dismissal, which we direct. No costs.
………………………….………..J.
(Dr. ARIJIT PASAYAT)
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………………………….……….J.
(LOKESHWAR SINGH PANTA)
New Delhi,
July 7, 2008
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