BAI PARSAN GOPALJI v. BHAGWANDAS NARSIDAS — 1970 DIGILAW 54 (GUJ)

S. H. SHETH, J. ( 1 ) THE plaintiff is the daughter of one Manibai who was the widow of one Gopalji. Gopalji was a member of the joint Hindu family of Narsidas Dahyabhai of which the original defendant No. 1 (by his heirs after his death) and the defendants Nos. 2 and 3 were also the members. The plaintiff alleged that the suit properties viz. two houses situate in the city of Bhavnagar were the Joint family properties and that she was entitled to a share therein on partition of the said properties and to the possession of her share in them. ( 2 ) THERE is no dispute about certain facts. Gopalji father of the plaintiff died in 1902 A. D. leaving Manibai as his widow. Manibai was alive in 1956 when the Hindu Succession Act came into force. She died in or about 1958. The plaintiff is the daughter of Gopalji and Manibai and claims through Manibai. ( 3 ) THE defendants resisted the suit principally on two grounds. Their first contention was that the suit properties were not joint and that Manibai had not been in possession of the suit properties in her own right. ( 4 ) THE learned Trial Judge upon evidence held that property A mentioned in the schedule to the plaint was joint and that property B was not joint family property. He also held that Manibai had not been in possession in her own right but that she was permitted to occupy the first floor of property A because she had the right of residence. In that view of the matter the learned Trial Judge dismissed the suit. ( 5 ) THE plaintiff appealed to the District Court. ( 6 ) THE learned Assistant Judge held that both the properties were not joint and that Manibai had not been in possession of the suit properties in her own right. Therefore no benefit of sec. 14 of the Hindu Succession Act was available to Manibai and that therefore it was not available to the plaintiff. In that view of the matter the learned Assistant Judge dismissed the appeal. ( 7 ) IT is against that appellate Judgment and decree that the plaintiff has filed the present Second Appeal. ( 8 ) THE first question which Mr. S. M. Shah has canvassed before me is that the suit properties are joint family properties. In that view of the matter the learned Assistant Judge dismissed the appeal. ( 7 ) IT is against that appellate Judgment and decree that the plaintiff has filed the present Second Appeal. ( 8 ) THE first question which Mr. S. M. Shah has canvassed before me is that the suit properties are joint family properties. Whether the suit properties are joint family properties or not appears to be a question of fact and if I was required to go into the evidence and to reappreciate it in order to arrive at a different finding I would not have done so. Mr. Shah however has rested content with inviting my attention to Ex. 10 which is a letter which the defendants attorney wrote to the plaintiffs attorney on 12th August 1938. This letter has been referred to by the learned Assistant Judge and in his view it does not contain an admission on the part of the defendants that the suit properties were joint family properties. In my opinion the learned Assistant Judge has misread that letter. I reproduce from the said letter the following extract which shows that the defendants have admitted that the suit properties were joint family properties. It is absolutely false that save and except the two houses one of which is in collapsed condition there is any other property belonging to joint family. It is true that your client is a daughter of Manibai but she is not in any way interested in the ancestral property. The exception contained in the said extract read in context of the entire statement makes it clear that the defendants had been telling the plaintiff that except the two properties which indisputably were the suit properties there were no other joint family properties. However the learned Assistant Judge has upon appreciation of evidence held that property B has been the exclusive property of Pragji Dipchand and that it does not belong to the joint family of Narshibhai Dahyabhai. Even though something different has been stated by the defendants in the letter Ex. 10 the learned Assistant Judge after having taken into account several overall circumstances has recorded this finding. It is a finding of fact and it belongs to the realm of appreciation of evidence. I therefore see no justifiable reason to interfere with that finding. Even though something different has been stated by the defendants in the letter Ex. 10 the learned Assistant Judge after having taken into account several overall circumstances has recorded this finding. It is a finding of fact and it belongs to the realm of appreciation of evidence. I therefore see no justifiable reason to interfere with that finding. In my opinion therefore property B has not been the property belonging to the joint family of Narshibhai Dahyabhai. ( 9 ) SO far as property A is concerned it has been held by the learned Assistant Judge that there is no clear evidence to show whether it has been joint family property or whether it has been the separate property of any of the defendants. The learned Assistant Judge has missed so far as property A is concerned to notice the great significance which the recitals in letter Ex. 10 contain. On the strength of what is stated in letter Ex. 10 (I have reproduced the relevant extract therefrom here above) I see no difficulty in holding that it has been the property belonging to the joint family of Narshibhai Dahyabhai. ( 10 ) THE next question which Mr. S. M. Shah has canvassed before me is that the plaintiff as the daughter of Manibai is entitled to claim right of ownership by virtue of sec. 14 of the Hindu Succession Act. Sub-sec. (1) of sec. 14 of the Hindu Succession Act contemplates two things. Firstly a female Hindu must have acquired the property before or after the commencement of the said Act and secondly she must be in possession thereof at the date when the said Act came into force. It is not necessary for me to deal with the question of possession of property B because it has been held to be a property not belonging to the joint family of Narshibhai Dahyabhai but belonging exclusively to Pragji Dipchand. So far as property A is concerned it has been found by the Courts below that Manibai was in possession only of the first floor of that property. Sec. 14 of the Hindu Succession Act does not confer any benefit upon a Hindu widow who became widow before the said Act came into force in respect of property of which she had no possession. Sec. 14 of the Hindu Succession Act does not confer any benefit upon a Hindu widow who became widow before the said Act came into force in respect of property of which she had no possession. In this case Manibai has been found to have been in possession only of the first floor of property A. ( 11 ) THE next question before me is one which relates to nature of her possession and the further rights if any which accrue to her from it on account of the operation of sec. 14 of the Hindu Succession Act. The plaintiffs father Gopalji died in 1902. Therefore her mother who became widow in 1902 had only right of maintenance and residence. It is in exercise only of that right of residence that Manibai had been residing on the first floor of property A. Mr. Mankad has pointed out to me. that it had been in joint possession of Manibai and the defendant because the evidence discloses that the defendants who had been residing at Bombay used to put up with Manibai in the said premises whenever they visited Bhavnagar. Casual visits cannot determine possession. It is therefore not necessary for me to consider that part of the evidence. It has not been disputed before me that the Hindu Womens Rights to Property Act 1937 was not applicable to Bhavnagar at any time before it was repealed by the Hindu Succession Act 1956 That is a finding recorded by the learned Assistant Judge in his judgment. It is therefore clear that all that Manibai had right upto 1956 was the right of residence and nothing more. The question therefore is whether the right of residence which Manibai had until 1956 can be said to be the acquisition of property within the meaning of sub-sec. (1) of sec. 14. If it amounts to acquisition of property then by virtue of the possession which she had of the first floor of the property A whatever estate she had in respect of that property would be enlarged into a full estate of her ownership. ( 12 ) MR. S. M. Shah has invited my attention to the case of Gummalapura Taggina Matada Kotturunswami v. Setra Veerayya and others reported in A. I. R. 1959 Supreme Court 577. The Supreme Court has considered in that decision the connotation of the expression possessed as used in sec. ( 12 ) MR. S. M. Shah has invited my attention to the case of Gummalapura Taggina Matada Kotturunswami v. Setra Veerayya and others reported in A. I. R. 1959 Supreme Court 577. The Supreme Court has considered in that decision the connotation of the expression possessed as used in sec. 141 and has laid down that the word possessed used in sec. 14 of the said Act means the state of owning or having in ones hand or power. It has been further laid down by the Supreme Court that the possession of a female Hindu contemplated by sec. 14 may be either actual or constructive or in any form recognized by law. The ratio of the decision is that sec. 14 of the Hindu Succession Act contemplates any form of lawful possession and excludes such possession as that of a trespasser. It is in that broad sense that that word has come to be construed by the Supreme Court. ( 13 ) IN the case of Eramma v. Veerupana and others reported in A. I. R. 1966 Supreme Court 1879 a similar question arose before the Supreme Court wherein the same principle in more elaborate form has been laid down. It has been held that the possession of a female Hindu contemplated by sec. 14 must be possession with some vestige of title. ( 14 ) IN the case of Smt. Suhag Wanti and another v. Smt. Sodhan (died) and others reported in A. I. R. 1968 Punjab and Haryana 24 the learned Judge of the Punjab High Court was also considering the question of possession within the meaning of sec. 14 of the Hindu Succession Act. The principle which has been laid down is that possession contemplated by sec. 14 of the Hindu Succession Act covers the possession of a Hindu widow of a joint family house for her residence and maintenance. In that case the right of the Hindu widow was recognized subsequently by the decree of the Court. The learned Judge upon the aforesaid facts held that such possession of a Hindu widow was sufficient within the meaning of sec. 14 to enlarge her estate and to make her the absolute owner of the property which was in her such possession. It is clear therefore that possession which sec. The learned Judge upon the aforesaid facts held that such possession of a Hindu widow was sufficient within the meaning of sec. 14 to enlarge her estate and to make her the absolute owner of the property which was in her such possession. It is clear therefore that possession which sec. 14 of the Hindu Succession Act contemplates is the lawful possession with some vestige of title in respect of property which a female Hindu must have acquired either before or after the said Act came into force. In this case Manibai had only the right of residence in the first floor of property A. On account of the fact that the Hindu Womens Rights to Property Act did not apply to Bhavnagar State that right of residence remained un-enlarged until the Hindu Succession Act came into force in 1956. The question therefore which arises for my consideration is whether a mere right of residence which a Hindu widow has can amount to acquisition of property within the meaning of sec. 14 sub-sec. (1) of the Hindu Succession Act. A right of residence is a personal right. ( 15 ) MR. S. M. Shah has also invited my attention to the decision of the Patna High Court in the case of Sheojee Tiwari and another v. Prema Kuer and others reported in A. I. R. 1964 Patna 187. In that case the Patna High Court has dealt with the question of possession of the property which a female Hindu had in lieu of her maintenance. Upon these facts the Patna High Court has held that it is a property acquired within the meaning of sec. 14 sub-sec. (1) of the Hindu Succession Act. In the instant case I am concerned with the question whether the property of which Manibai had possession in exercise of her personal right of residence can be said to have been acquired. ( 16 ) POSSESSION which a Hindu widow may have in exercise of her right of residence is indeed a lawful possession. But a bare right of residence creates no estate in her favour which by virtue of the operation of sub-sec. (1) of sec. 14 of the Hindu Succession Act can be enlarged into estate of her full ownership. ( 16 ) POSSESSION which a Hindu widow may have in exercise of her right of residence is indeed a lawful possession. But a bare right of residence creates no estate in her favour which by virtue of the operation of sub-sec. (1) of sec. 14 of the Hindu Succession Act can be enlarged into estate of her full ownership. She cannot deal in any manner whatsoever with the property which is in her lawful possession in exercise of her right of residence except that she can reside therein and enjoy it as residence. Her right of residence is non-transferable. She cannot alienate or encumber the property. Such a personal right in my opinion does not amount to acquisition of property within the meaning of sub-sec. (1) of sec. 14 of the Hindu Succession Act. The view which I am taking finds support from the Division Bench decision of the Rajasthan High Court in the case of Mst. Mohari v. Mst. Chukli and another reported in A. I. R. 1960 Rajasthan 82 wherein acquired property has been contradistinguished from a mere right of maintenance or residence. Therefore in my opinion the bare right of residence which the plaintiffs mother had in 1956 so far as the first floor of property As is concerned does not amount to the property acquired by her within the meaning of sub-sec. (1) of sec. 14 of the Hindu succession Act. 2 A mere right of residence of a Hindu widow cannot be equated with the acquisition of property with all the necessary concomitants flowing there. from. 3the property in question undoubtedly belonged to the joint family of Narshibhai Dahyabhai. In respect of that property all that the plaintiffs mother Manibai had was a right to reside therein. If her right of residence had led to the creation of Hindu widows estate which would have been the case if the Hindu Womens Rights to Property Act 1937 was applicable to Bhavnagar State then certainly by virtue of the provisions of sub-sec. (1) of sec. 14 of the Hindu Succession Act Manibais Hindu widows estate would have been enlarged into her full estate. In the instant case that is not the situation. Mr. S. M. Shah has invited my attention to explanation to sub-sec. (1) of sec. (1) of sec. 14 of the Hindu Succession Act Manibais Hindu widows estate would have been enlarged into her full estate. In the instant case that is not the situation. Mr. S. M. Shah has invited my attention to explanation to sub-sec. (1) of sec. 14 which gives an inclusive definition of property and provides 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 stridhan immediately before the commencement of the said Act. He has laid emphasis upon the expression in any other manner whatsoever. This expression in my opinion embraces all the lawful modes of acquiring property. I am not concerned so much with the mode of acquisition as with the acquisition itself. The question which has been posed for my consideration is whether a property of which a Hindu widow is in possession in exercise of her right of residence can be said to have been acquired by her within the meaning of sec. 14 (1 ). In other words is a bare personal right of residence property at all ? The definition of property in the explanation to sub-sec. (1) of sec. 14 is inclusive and therefore many other things can as well be contemplated and brought under its canopy. However I am unable to regard a bare personal right of residence available to a Hindu widow as the acquisition of property within the meaning of sub-sec. (1) of sec. 14. The property in possession of a Hindu widow in exercise of her right of residence otherwise continues to belong to the joint family. It can be dealt with by the joint family on the basis of its ownership. It can be alienated or encumbered or otherwise dealt with without in any manner adversely affecting the widows right to reside therein. After the death of the widow it continues to belong to the joint family. It can be dealt with by the joint family on the basis of its ownership. It can be alienated or encumbered or otherwise dealt with without in any manner adversely affecting the widows right to reside therein. After the death of the widow it continues to belong to the joint family. The right of residence therefore which a Hindu widow has in respect of a joint family property is nothing more than the free use of a joint family property for her physical residence. That right is co-extensive with her widowhood. In that view of the matter even though she may be in lawful possession of the property within the meaning of sec. 14 she cannot be said to have acquired it so as to make her the full and absolute owner thereof by virtue of the operation of sec. 14. Therefore the plaintiff who is the daughter of Manibai cannot claim any right of ownership to the said property and cannot claim partition and the contention raised by Mr. S. M. Shah is rejected. ( 17 ) THE result therefore is that the appeal fails and is dismissed. There shall be no order as to costs. Mr. S. M. Shah applies for Certificate of fitness under clause 15 of the Letters Patent. Certificate of fitness is granted. .