Full Judgment Text
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PETITIONER:
SMT. HIMI D/O SMT. LACHHMU & ANR.
Vs.
RESPONDENT:
SMT. HIRA DEVI WD/O BUDHU RAM & ORS.
DATE OF JUDGMENT: 25/09/1996
BENCH:
N.P. SINGH, S.B. MAJMUDAR
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
S.B. Majumdar, J.
The appellants who are the heirs of one Bai Lachhmu,
are the original plaintiffs whose suit for possession
against the respondent-donees of suit agricultural lands
claiming through the donor Bai Utti came to be decreed by
the Trail Court and which decree was confirmed by the
District Court but who lost before the High Court in Second
Appeal and consequently their suit for possession came to be
dismissed by the High Court.
A few relevant facts leading to the present proceeding
by special leave to appeal under Article 136 of the
Constitution of India may be noted at the outset. the suit
lands originally belonged to one Bali Ram. Said Bali Ram
made a will of his properties dividing equally the suit
properties between his second wife Utti and his daughter
from the first wife Bia Lachhmu through whom the appellants
claim. The legatees under the said Will of Bali Ram were his
second wife and his daughter from the first wife who inter
se were step-mother and step-daughter respectively.
Said Bali Ram died on 25th July 1946. Thereafter
Lachhmu claiming her half share in the properties on the
basis of the Will of her father Bali Ram filed a Civil Suit
on 5th May 1947 against her step-mother Utti challenging the
mutation of properties in her name and for enforcing her
rights under the Will and for possession of her half share
in the properties as a legatee under her father’s Will. In
the said suit between step-daughter plaintiff Bai Lachhmu
and step-mother Bai Utti a compromise was arrived on 6th
November 1947. Under the said compromise the defendant step-
mother acknowledged the ownership of the half share of
plaintiff Bia Lachhmu in the suit properties pursuant to the
Will of Bali Ram. The plaintiff Bai Lachhmu on the other
hand agreed that her properties comprising of the half share
under her fathers’ will may remain in possession of Bia Utti
during her lifetime but after the death of Bai Utti,
plaintiff Bia Lachhmu or her heirs would be entitled to
enter upon the possession of the suit properties. It was
also agreed between the parties that both the parties will
have equal rights in the suit properties during the lifetime
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of Bai Utti, the step-mother of the plaintiff. Accordingly
consent Decree was passed. We will refer to the relevant
terms of the consent Decree a little later. To resume the
narration of events Bai Utti who was permitted during her
lifetime to remain in possession of the properties which
were accepted to be belonging to Bai Lachhmu as per the
aforesaid Compromise Decree, assuming that she had become
full owner of these properties during her lifetime
presumably by virtue of Section 14 sub-section (1) if the
Hindu Succession Act, 1956 (hereinafter referred to as ’the
Act’) donated the suit properties by two gift Deeds dated
17th April 1970 and 26th August 1970 in favour of one Bellu
Ram and one Budhu respectively. Under these gift Deeds this
apart from her half share in the properties for which there
was no dispute she also gifted away the other half share of
the properties which belonged to Bai Lachhmu and which half
share was possessed by her during her lifetime pursuant to
the Consent Decree. Accordingly the respective donees
entered upon possession of there properties. Thereafter Bai
Utti dies on 4th September 1971. The appellant as heirs of
Bai Lachhmu filed a Civil Suit against both the donees Bellu
Ram and Budhu on 28th January 1972 claiming possession of
the properties which according to the appellants belonged to
Lachhmu and which were illegally donated by Bai Utti to the
concerned donees. The learned Trial Judge after hearing the
parties passed a decree for possession on 6th September 1976
in favour of the appellants, holding that they are the heirs
if Bai Lachhmu and that the defendants are stopped from
challenging the Will as they had claimed their rights under
Bai Utti and they were bound by the admission made by Bai
Utti relating to the validity of the Will and the right,
title and interest regarding the half share of Bai Lachhmu
in the suit properties. The learned Trial Judge also held
that Bai Utti who was possessed of these properties. When
the Act came into force possessed them as limited owner but
not on account of any pre-existing right in these properties
and that her right flowed from the Compromise Decree passed
in 1947 and consequently she had a restricted estate not
capable of being enlarges into absolute ownership on account
of the provisions of Section 14 sub-section (2) of the Act.
Appeal preferred against the said decree by the aggrieved
defendant came to be dismissed by the First Appellate Court
on 19th November 1979. The aggrieved defendant thereafter
carries the matter in second appeal before the High Court. A
learned Single Judge if the High Court took the view that as
defendant Budhu was a third party and a stranger and as he
was claiming de hors the Will of Bali Ram and as the said
Will was not proved in the litigation between the parties
and as the admission of Bai Utti regarding the validity of
the Will in the Consent Decree was not binding on Budhu the
suit of the appellants was liable to be dismissed and
accordingly the learned Single Judge of the High Court
allowed the second appeal and dismissed the suit of the
appellants, as noted above. The said judgment and decree of
the High Court is brought in challenge by the dissatisfied
plaintiffs in this appeal.
Learned counsel for the appellants vehemently contended
that the compromise Decree dated 6th November 1947 between
the step-daughter Bai Lachhmu, predecessor-in-interest of
the appellants on the one hand and her step-mother Bai Utti,
predecessor-in-interest of the contesting respondents
conferred for the first time a right on Bai Utti to remain
in possession of the suit lands which belongs to Bai
Luchhmu. That the said Consent Decree which gave life
interest to Bai Utti does not acknowledge any pre-existing
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right of Bai Utti in the properties for maintenance as the
step-daughter was not bound to maintain the step-mother.
Therefore, the arrangement between the parties recognised by
the Consent Decree created a new right in favour of Bai Utti
to remain in possession of the decree and consequently
Section 14 sub-section (2) of the Act applied and not
Section 14 sub-section (1). It was next contended that the
High Court had totally gone wrong in holding that the
admissions contained in the Consent Decree on the part of
Bai Utti were not binding on the respondents who were
strangers to the said Decree. It was, therefore, contended
that the High Court had patently erred in law in interfering
with the Decree of the Trial Court as rightly confirmed by
the First Appellate Court.
Learned counsel for the respondents on the other hand
submitted that admittedly the contesting respondent-donees
were not admittedly the contesting respondent-donees were
not parties to the Compromise Decree. That even though the
Compromise Decree acknowledged the rights of Bai Lachhmu
under the Will of her father as the Will was not legally
proved on record no right in the suit properties endured in
favour of Bai Lachhmu and consequently the appellants as her
heirs also cannot claim any interest in the suit properties.
That the suit properties were possessed by Bai Utti when
Section 14(1) of the Act came into operation and, therefore,
her possession as limited owner matured into full ownership
pursuant to Section 14(1) and consequently the suit was
rightly dismissed by the High Court.
Having given our anxious consideration to these rival
contentions we find that the High Court was not justified in
upsetting the decree for possession as passed by the Trail
Court and as confirmed by the First Appellate Court. The
reason for reaching this conclusion is obvious. It may be
that in the suit filed by Bai Lachhmu the step-daughter
against Bai Utti her stepmother the Will of Bali Ram
bequeathing one half share in the properties of the of the
testator in favour of his daughter Bai Lachhmu was seriously
disputed. But that dispute was settled and Bai Utti accepted
by way of compromise the right, title and interest of Bai
Lachhmu in the suit properties as flowing form the Will of
her father. When we turn to the consent terms dated 6th
November 1947 we find the following clear recitals on the
part of Bai Utti acknowledging the tight, title and interest
of Bai Lachhmu in the suit properties :
"Defendant no.1 Bai Utti had
accepted with regard to the half
share in right, title and interest
in favour of the plaintiff in the
remaining lands, the will dated
20th March 1946 made by Bali, the
father of the plaintiff. As regards
in the remaining half lands, right,
title and interest thereto vests in
the defendant no.1. Both the
plaintiff and defendant no.1 have
equal right, title and interest in
these lands. However, the
possession would remain with the
defendant no.1 and that after her
death the plaintiff shall be
entitled to take the possession
thereof, provided she is alive and
if she is not alive, her heirs
would be entitled to take the
possession. .... .... .... decree
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may be passed in terms of the
conditions of this compromise
arrived at between the plaintiff
and the defendant no.1, and the
case file be consigned to the
Record room.
N.B.: During the lifetime of the
defendant no. 1, the plaintiff
shall not be entitled to take
possession."
In view of these clear recitals in the Compromise
Decree it becomes clear that Bai Utti who was defendant no.1
in that suit acknowledged the right, title and interest of
plaintiff Bai Lachhmu, her step-daughter to the extent of
one half share in the suit properties and share agreed to
remain in possession of the properties during her lifetime
only and it was clearly provided that on her death plaintiff
Bai Lachhmu or her heirs would be entitled to take
possession of these properties obviously as full owners
thereof. Thus only a restricted right to occupy the suit
properties was created in the properties belonging to the
plaintiff Bai Lachhmu in favour of her step-mother Bai Utti
during the latter‘s lifetime. It is obvious that this life
interest was created not in lieu of any pre-existing or
antecedent right of Bai Utti for being maintained by the
plaintiff Bai Lachhmu, her step-mother . The step-daughter
was not bound to maintain her step-mother under any
provisions of law. Nor was there any pre-existing legal
right of the step-mother Bai Utti qua these properties.
Despite that Bai Utti was permitted to remain in possession
of plaintiff Bai Lachhmu‘s property which was purely by way
of a concession to resolve the dispute between the parties.
Thus the right to remain in possession of the first rime on
Bai Utti, the step-mother by her step-daughter Bai Lachhmu,
the plaintiff in that suit. By these consent terms Bai Utti
also acknowledged the right of the plaintiff Bai Lachhmu
flowing from her father‘s Will. This life interest flowing
from the consent terms in favour of Bai Utti, therefore,
cannot be said to have been created in acknowledgement of
any pre-existing right of maintenance. Consequently Section
14 sub-section (1) could not be attracted on the facts of
the present case and it is only Section 14 sub-section (2)
which applied. Section 14 with its sub-sections 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.
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, of in
lieu of maintenance or arrears of
maintenance, or by gift from any
person, whether a relative or by
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
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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."
It is no doubt true as decided by this Court in the
case of Vaddeboyina Tulasamma and others v. Vaddeboyina
Sesha Reddi (dead) by L.Rs. AIR 1977 SC 1944 that sub-
section (2) of Section 14 of the Hindu Succession Act is a
proviso to sub-section(1) of Section 14. But Section 14 sub-
section (1) would apply only if property is acquired by
female Hindu in lieu of maintenance or by virtue of any pre-
existing right. Bhagwati, J., (as he then was) speaking for
himself and A.C. Gupta,J., in the aforesaid decision has
made the following pertinent observations in this connection
in paras 3 and 4 of the Report :
"Sub-section (1) of Section 14 is
large in its amplitude and covers
every kind of acquisition of
property by a female Hindu
including acquisition in lieu of
maintenance and where such property
was possessed by her at the date of
commencement of the Act or was
subsequently acquired and
possessed, she would become the
full owner of the property. Sub-
section (2) is more in the nature
of a proviso or exception to sub-
section (1) . It excepts certain
kinds of acquisition of property by
a Hindu female from the operation
of sub-section (1) and being in the
nature of an exception to a
provision which is calculated to
achieve a social purpose by
bringing about change in the social
and economic position of woman in
Hindu society, is must be construed
strictly so as to impinge as little
as possible on the broad sweep of
the ameliorative provision
contained in sub-section (1). it
cannot be interpreted in a manner
which would rob sub-section (1) of
its efficacy and deprive a Hindu
female of the protection sought to
be given to her by sub-section (1).
Sub-section (2) must, therefore,
be read in the context of sub-
section (1) so as to leave as large
a scope for operation as possible
to sub-section (1) and so read, to
must be confined to cases where
property is acquired by a female
Hindu for the first time as a grant
without any pre-existing right,
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under a gift, will, instrument,
decree, order or award, the terms
of which prescribe a restricted
estate in the property. Where,
however, property is acquired by a
Hindu female at a partition or in
lieu of right of maintenance, it is
in virtue of a pre-existing rightly
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 prescribes a
restricted estate in the property."
Applying the aforesaid settled legal position to the
facts of the present case it must be held that the
Compromise Decree for the first time created a right in
favour of Bai Utti to remain in possession of the property
belonging to Bai Lachhmu only during her lifetime and as
that right was conferred for the first time under the
Consent Decree and was not in lieu of any pre-existing right
of Bai Utti in Bai Lachhmu‘s property Section 14 sub-section
(2) applied to the facts of the case and not Section 14 sub-
section (1). It is difficult to appreciate how the High
Court persuaded itself to hold that as the Will was not
proved on record and as the donees by claiming the suit
properties from the donor Bai Utti were strangers to the
Consent Decree they were not bound by the admission of Bai
Utti in the Consent Decree. It is obvious that the
contesting respondents herein who were donees of the
properties could not claim a better title to the suit
properties than what was available to the donor Bai Utti. If
Bai Utti was not the full owner of the properties she had no
right to gift away these properties in favour of the
respondent-donees. They could not be said to be strangers to
the Consent Decree, on the contrary, they were claiming
through one of the parties to the Consent Decree, namely ,
Bai Utti. The obligations flowing from the Consent Decree
and which were binding to the donor Bai Utti would
necessarily bind the donees, namely, the respondents who
stepped in the shoes of Bai Utti . They cannot claim any
better right than what the donor had only a personal right
to occupy the properties during her lifetime, she could not
have conveyed any title of the properties to the donees. It
is equally difficult to appreciate how the learned Single
Judge of the High Court could hold that admissions of the
predesor-in-title of the respondent-donees were not binding
on the respondents. For all these reasons, therefore, it
must be held that the High Court was in error in interfering
with the Decree for possession as passed by the Trial Court
and as confirmed by the First Appellate Court by holding
that Section 14 sub-section (2) of the Act was not
applicable to the facts of the present case and Bai Utti had
become the full owner of the sit properties pursuant to the
said provision.
In the result this appeal succeeds and is allowed. The
judgment and decree of the High Court in R.S.A. No.18 of
1978 dated 5th August 1988 is set aside, instead the decree
padded in favour of the plaintiffs by the learned Senior
Sub-Judge, Kulu in 6th September 1976 and as confirmed by
the learned Additional District Judge, Mandi, Himachal
Pradesh, on 9th November 1977 in Civil Appeal No.50 of 1976
is restored. In the facts and circumstances of the case
there will be no order as to
costs.
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