ANANDIBAI v. SONABAI MAHADEV RAJADHYAKSHA — 1973 DIGILAW 172 (KAR)

( 1 ) THE above appeal arises out of Spl. Suit No. 16 of 1967 on the file of the Civil Judge, Dharwar. The plaintiffs filed the said suit for possession of the suit properties which belonged to one Dattatreya, who died in the year 1966. The case of the plaintiffs was that they were entitled to the, suit properties on the death of Dattatreya as they were his nearest heirs, and that the defendants who were also claiming as the heirs of dattatreya were not entitled to them. The genealogical tree showing the relationship of the parties is as follows : at a partition which took place amongst the sons of Vishvambhar, the common ancestor referred to in the genealogical tree, Ganapat was allotted the suit properties to his share. Ganapat died leaving behind him two daughters Chimantai and Manakatai and two sons Mahadeo and Dattatreya. On the death of Ganapat, Mahadeo and Dattatreya became entitled to the suit properties by right of survivorship. They continued to be members of joint family until the death of Mahadeo which took place in the year 1923. Mahadeo died leaving behind him his widow Anandibai, defendant 1. Dattatreya became entitled to the suit properties as the sole surviving coporcener of the family. Dattatreya died, unmarried in 1966. His "sisters, Chimantai and Manakatai having predeceased him, plaintiff 1 sonabai, the daughter of Manakatai and plaintiff 2 Govind, the son of chimantai, became entitled to the estate left by Dattatreya as his heirs. It was further stated by the plaintiffs that the suit properties were formerly Kulkarni watan lands and that after the coming into force of the bombay Paragana and Kulkarni Watan Abolition Act, 1950, the lands were regranted to the deceased Dattatreya on payment of occupancy price. It appeal's that there were certain disputes between the parties before the revenue authorities regarding their respective claims to the suit properties and in view of the same, the plaintiffs filed the above suit for possession of the suit properties and for future mesne profits on the basis of title. ( 2 ) DEFENDANT 1 contested the suit. It appeal's that there were certain disputes between the parties before the revenue authorities regarding their respective claims to the suit properties and in view of the same, the plaintiffs filed the above suit for possession of the suit properties and for future mesne profits on the basis of title. ( 2 ) DEFENDANT 1 contested the suit. In the course of her written statement, she pleaded inter alia, that she had become entitled to the suit properties absolutely by virtue of S. 14 (1) of the Hindu Succession Act (hereinafter referred to as the Act) on the death of Dattatreya, and, that she also became entitled to the suit properties because she was the only member of the family of watandars to whom they belonged. ( 3 ) ON behalf of the plaintiffs one witness was examined before the trial court and on behalf of the defendants also one witness was examined. Defendant 1 did not enter the witness box. The Court below made a decree in favour of the plaintiffs after rejecting the contentions raised by defendant 1. Hence this appeal by defendant 1. Only the plaintiffs have been impleaded as respondents in this appeal. The other defendants have not been impleaded as parties. ( 4 ) THE undisputed facts in this case are: That Dattatreya became entitled to the suit properties as the sole surviving coparcener on the death of Mahadeo which took place in the year 1923 and the plaintiffs were the nearest heirs entitled to his properties on his death in the year 1966. The only question which has to be considered in this appeal is,whether defendant 1 whose husband died in the year 1923, has become entitled to the suit properties in any manner known to law. Sri K. G. Datar, the learned Counsel for defendant 1, argued that Anandibai (defendant 1) who became entitled to claim maintenance from out of the suit properties on the death of her husband Mahadeo was entitled in law to the possession of the suit properties, and, therefore, she became entitled to the suit properties absolutely by virtue of 8. 14 (1) of the Act. Section 14 (1) of the Act reads as follows : 14 (1 ). 14 (1) of the Act. 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. " ( 5 ) A reading of S. 14 (1) of the Act shows that in order to claim the benefit of the provisions of S. 14 (1) in respect of any property, a female Hindu must have had a right to possession of that property in question, and that she must have been in possession of that property either actually or constructively. The expressoin 'possessed' appearing in S. 14 (1) means ' lawfully possessed. ' and does not refer to a case where the person in possession is a trespasser. This is the view taken by the Supreme Court in dindayal v. Rajaram,. AIR. 1970 SC. 1019. Sri K. G. Datar, the learned Counsel for the first defendant, however contended relying upon the decision of the supreme Court in Badri Pershad v. Kanso Devi, AIR. 1970 SC. 1963. that the expression 'possessed' in S. 14 (1) should be given its widest connotation and when it is so construed even a right to claim maintenance from out of a property, without more, would have to be considered as a right to possession of that property. Reliance was also placed on the decision of the Supreme court in Mangal Singh v. Rattno, AIR. 1967 SC. 1786. in which it has been laid down that even though a female Hindu may not be in actual possession of the property her rights in the property must be those in exercise of which she is capable of obtaining actual possession of it in order to attract section 14 (1 ). 1967 SC. 1786. in which it has been laid down that even though a female Hindu may not be in actual possession of the property her rights in the property must be those in exercise of which she is capable of obtaining actual possession of it in order to attract section 14 (1 ). Hence, the crucial test laid down by the foregoing decisions of the Supreme Court is that the female Hindu claiming the benefit of s. 14 (1) should establish that either she is in possessioon of the property in question or is capable of securing possession of the same. ( 6 ) WE shall now proceed to examine whether defendant 1 was entilted to possession of the suit properties at any time either before or after the. coining into force of the Act. The properties in question no doubt originally Belonged to the joint family consisting of the husband of defendant 1 and his brother dattatreya prior to the death of the husband of defendant 1. On the death of the husband of defendant 1, Dattatreya became entitled to the family properties as the sole surviving coparcener and defendant 1 being widow of a predeceased coparcener, became entitled to claim maintenance from out of the joint family properties according to the law in force then. What are the. nature and incidents of her right of maintenance? The right of maintenance is a personal right, which can be enforced Against the property of the family by the creation of a charge on it, but it is not proprietary in character. The claim by itself does not amount to a charge until it is fixed by a Court or by agreement between the widow and the holder of the estate. It is liable to be defeated by a transfer of the property to a bona fide purchaser for value without notice of the widow's claim of maintenance (see S. 39 of the Transfer of Property Act ). The liability of a property for payment of maintenance can also be avoided by a transfer to a purchaser for value even with notice of the claim unless the transfer is made with the intention of defeating the claim and the purchaser has notice of such intention. All that a widow can do is that she can recover maintenance from out of the properties of the family. All that a widow can do is that she can recover maintenance from out of the properties of the family. In exercise of that, right, she cannot claim possession of any portion of the family property as a matter of course. But, the claim for maintenance is capable of being settled in several ways, e. g. (1) by the holder of the estate agreing to pay maintenance periodically, or (2) by the decree of a Court, or (3) by an agreement between the widow and the holder of the estate by payment of a lumpsum of money in full settlement of the claim for maintenance, or (4) by delivery of possession of any item of property in lieu of maintenance as a result of an agreement or arrangement. Property referred to as property acquired by a female Hindu in lieu cf maintenance' in the Explanation to s. 14 (1) of the Act is the property referred to in the last of the modes referred to above by which the claim for maintenance of a widow can be settled. It does not include a property against which a claim for maintenance can be enforced or a property on which a charge in respect of maintenance can be created either by a decree or otherwise. ( 7 ) THE decision in Hanmangouda v. Hanmangouda (1972) 1 Mys. L. J. 315. on which reliance was placed by Sri K. G. Datar does not take a different view of the legal position. In that case the Court was dealing with a case in which reliance was placed on an agreement or ekkarnama under which certain properties had been put in possession of the widow of a predeceased coparcener in settlement of her claim for maintenance in enforcement of which she had obtained a decree for maintenance of Rs. 50 per annum. That decision does not lay down that a mere right to claim maintenance would attract provisions of S. 14 (1) of the Act. Hence, defendant 1 cannot derive any assistance from it. ( 8 ) IN our opinion, defendant 1 was not entitled to claim possession of the suit properties either during the lifetime of Dattatreya or after his death. But it was argued that the fact that the suit was one for possession of the properties implied that she was in posssesion of them in lieu of maintenance. ( 8 ) IN our opinion, defendant 1 was not entitled to claim possession of the suit properties either during the lifetime of Dattatreya or after his death. But it was argued that the fact that the suit was one for possession of the properties implied that she was in posssesion of them in lieu of maintenance. We cannot accede to the above submission also. ( 9 ) THE possession of defendant 1, even if it is true, after the death of Dattatreya is that of a trespasser only, as defendant 1 is not the nearest heir of Dattatreya, and she does not claim to be in possession of the suit properties with the consent of the true owners. Such possession does not confer any right under S. 14 (1) as held by the Supreme Court in Dindayal's case (1 ). It may be mentioned that there was no evidence in support of the case of defendant 1 that she was in possession of the suit properties and it is admitted that all the suit properties are in the possession of the tenants who were tenants even during the life time of Dattatreya. Defendant 1 cannot, therefore, be held as being in lawful possession of the suit properties. ( 10 ) WE, therefore, hold that defendant 1 has failed to establish that she has become the absolute owner of the suit Droperties by virtue of S. 14 (1) ot the Act. ( 11 ) IT was lastly contended by Sri K. G. Datar relying upon the decision, of the Federal Court in Umayal Achi v. Lakshmi Achi , AIR. 1945 FC. 25. that the case should be remanded to the trial Court to enquire into the maintenance that should be paid by the holders of the suit properties. On going through that decision, we feel that the decision of the Federal Court turned on the peculiar facts of that case In this case, it is open to defendant 1 to claim maintenance from the holders of the estate in a separate suit. Hence there is no need to remand the suit to the trial Court again. At this stage it is necessary to notice a plea raised by the plaintiffs that by virtue of an order of regrant of the suit properties made after the abolition of watan, ever, the claim for maintenance is lost. Hence there is no need to remand the suit to the trial Court again. At this stage it is necessary to notice a plea raised by the plaintiffs that by virtue of an order of regrant of the suit properties made after the abolition of watan, ever, the claim for maintenance is lost. We do not want to express any opinion on the said question. We leave the said question open to be agitated, if and when necessary. ( 12 ) IN the result, this appeal fails and it is dismissed. In the circumstances, we direct the parties to bear their own cost both in this Court and in the Court below. --- *** --- .