Omchand Soni v. Mohan Lal Marwari — 1984 DIGILAW 347 (PAT)

JUDGMENT : Chaudhary Sia Saran Sinha, J. - Omchand Soni and Jhabarmal, who were arrayed as defendant nos. 4 and 11, respectively, in Title Suit No. 12 of 1962; are the appellants in this First Appeal against the JUDGMENT : of the learned 1st Additional Subordinate Judge, Purnea, decreeing the suit. 2. Short facts, necessary for disposal of the limited contentions raised before this Court, are these:- One Kedarnath Marwari, father of the plaintiffs, namely, Mohan Lal Marwari and Jagdish Prasad Agrawal, as also Govind Ram Marwari, husband of Mosst. Brahmadevi (defendant no. 1) were full brothers and they were governed by the Mitakshara School of Hindu Law. Kedarnath Marwari died in a state of jointness with Govind Ram Marwari abovenamed, leaving behind the plaintiffs, his two sons, and his full brother Govind Ram Marwari. 3. According to the plaintiffs' case, Govind Ram Marwari died on 22-6-1935 in a state of Jointness with the plaintiffs leaving behind him, defendant no. 1 his widow. Govind Ram Marwari having died prior to the coming into force of the Hindu Women's Rights to Property Act, 1931, his interest in the joint family property came in possession of the plaintiffs and defendant no. 1 who had only a right of maintenance, was being maintained by the plaintiffs. By coming in collusion with one Janakdhari Singh (defendant no. 18), since dead, defendant no. 1 instituted Title Suit No. 36 of 1947 in the Court of Subordinate Judge, Purnea, against the plaintiffs, who were then minor, for the partition of the joint family properties, claiming half share in them. On the intervention of the well-wishers and relations, of the plaintiffs, this suit was compromised on 30.8.1948 by filing compromise petition, which formed a part of the decree. By this compromise, certain properties mentioned in the plaint, were allotted to defendant no. 1 (defendant 1st party) for her maintenance with the condition that the defendant 1st party, namely, Mosst. Brahmadevi, would enjoy the usufruct of those properties during her life time and after her death, the properties would revert to the plaintiffs or their heirs. Further condition imposed in that compromise petition was that the defendant 1st party will have no right to alienate any of those properties unless the plaintiffs also joined in the alienation. 4. Alleging that defendant no. 1, Mosst. Further condition imposed in that compromise petition was that the defendant 1st party will have no right to alienate any of those properties unless the plaintiffs also joined in the alienation. 4. Alleging that defendant no. 1, Mosst. Brahma Devi, without any legal necessity, created and manufactured false and collusive documents of transfer in respect of some of the properties, given to her for her maintenance, in the name of defendant-2nd party including the two appellants, the plaintiffs instituted the instant suit being Title Suit No. 12 of 1962, for declaration that defendant-1st party had no right to alienate the suit properties and that those alienations were not binding upon the plaintiffs, who were reversioners. 5. Defendant nos. 1, 2 and 11 alongwith 19 jointly filed three sets of written statements mainly alleging that Govind Ram Marwari died in the year 1937-38 and that the allegation of the plaintiffs that defendant no. 1 had only right of maintenance was incorrect. The properties mentioned in the compromise petition filed in Title Suit No. 12 of 1962 were not allotted to defendant no. 1 for her maintenance but as her half share in the joint family properties under the law. Defendant no. 1 became the absolute owner thereof and she was legally entitled to alienate those properties to defendants-2nd party for legal necessity. 6. The trial Court, on a consideration of the evidence adduced on behalf of both the parties, came to a finding that Govind Ram Marwari died before the passing of the Hindu Women's Right to Property Act, 1937. It further found that as Govind Ram Marwari died in the year 1935, defendant no. 1 had no right to claim partition of the joint family properties and she was only entitled to receive maintenance out of the income of the joint family property. The further finding of the trial Court was that defendant no. 1 was not entitled to any share in the joint family property though she was entitled to be maintained out of the joint family income. The further finding of the trial Court was that defendant no. 1 was not entitled to any share in the joint family property though she was entitled to be maintained out of the joint family income. The finding of the trial Court, in the middle of paragraph-8 of its JUDGMENT :, further was as follows:- "No doubt, properties given to a female in lieu of maintenance either before or after the passing of the Hindu Succession Act, 1956, becomes her absolute property under sub-section (1), but sub-section (2) has engrafted an exception and while considering sub-section (1), sub-section (2) cannot be overlooked Defendant no. 1 Mossomat Brahma Devi acquired interest in the suit properties for the first time by virtue of the compromise decree passed in Title Suit No. 36 of 1947 and before that she had no interest in the property except that of being maintained out of its income......... " Taking this view of the legal position, it was held that defendant no. 1 did not become full owner in the properties allotted to her in the compromise decree and as such she had no right to alienate any of those properties in favour of defendants-2nd party and those alienations are thus not binding on the plaintiffs. The suit was, therefore, decreed. 7. The sole submission of the learned counsel for the appellants, Sri R. K. Verma, was that even assuming everything, stated in the plaint to be correct and further that as found by the trial Court, Govind Ram Marwari died in the year 1935, the plaintiffs' suit was bound to be dismissed. This contention was resisted by the learned counsel for the respondent who further submitted that the whole appeal has abated on account of the death of Respondents 6 and 18 during the pendency of this appeal. The hearing of this appeal concluded on the 30th August, 1984 and JUDGMENT : was reserved. On 6.9.1984, a petition was filed on behalf of respondent nos. 1 and 2 stating that appellant no. 1 Omchand Soni died on 17.12.1983 but no steps for substitution of his heirs in his place had been taken and as such the appeal had become incompetent due to the death of appellant no. 1. Learned counsel for the appellants desired adjournment and On 20.9.1984 a petition was filed on behalf of the legal heirs of appellant no. 1 Omchand Soni died on 17.12.1983 but no steps for substitution of his heirs in his place had been taken and as such the appeal had become incompetent due to the death of appellant no. 1. Learned counsel for the appellants desired adjournment and On 20.9.1984 a petition was filed on behalf of the legal heirs of appellant no. 1 admitting the fact of the death of appellant no. 1 on 17.12.1983 and praying for setting aside the abatement and substituting the petitioners in place of appellant no. 1 as his heirs after condoning the delay in filing the petition. Thus, these are only the two points which arise for determination in this appeal. 8. Coming to the first point, on the own showing of the plaintiff as stated in paragraph-1 of the plaint, defendant no. 1 was entitled to be maintained and in fact she used to be maintained by the plaintiffs. It is also undisputed that on the date when the Hindu Succession Act, 1956, came into effect, defendant no. 1 was possessed of the properties given under the compromise decree and that she made alienations with respect to some of those properties in favour of defendants-2nd party after 1956. Sub-section (1) of section 14 of the Hindu Succession Act (hereinafter referred to as, the Succession Act) states that "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". Sub-section (2), thereof states, inter alia, that nothing contained in sub-section (i) 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. The position, that is by now well-settled, is that where a widow is entitled to maintenance and certain properties are given to her by way of maintenance prior to the coming into force of the Succession Act, 1956, and she is possessed of those properties at the time when the Act, abovementioned, came into force, it is sub-section (1) of section 14 of the Succession Act which will apply and not sub-section (2) thereof. In appropriate cases, the explanation to subsection (1) of the Succession Act may furnish a clue as to what was the intention behind sub-section (1) of section 14. Though the term acquired occurs both in sub-section (1) and subsection (2) of section 14 of the Succession Act, in the context in which it appears in the two sub-sections of section 14, it may mean differently. Reaching (sic) sub-section (1) of section 14 of the Succession Act with the explanation attached to it, the term 'acquired' occurring in sub-section (1) of section 14 would mean acquisition by virtue of a pre-existing right. The term 'acquired' in sub-section (2) of section 14 of the Succession Act would mean acquisition under an instrument etc. for the first time with any pre-existing right solely by virtue of that instrument. 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 recognized and enjoined by pure Shastric Hindu Law. Such a right of maintenance may not be a right to property but it is a right against property and the husband has a perpetual obligation to maintain his wife and if be or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of the 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 recognizing such a right does not confer any new title but merely endorses or confirms the pre-existing rights. It is to be noted that sub-section (2) of section 14 of the Succession Act 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 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. What is material for consideration is whether the acquisition comes under sub-section (1) of section 14 or sub-section (2) of section 14 of the Succession Act. What is material for consideration is whether the acquisition comes under sub-section (1) of section 14 or sub-section (2) of section 14 of the Succession Act. If it comes under sub-section (1) of section 14, this sub-section will have effect in respect of the documents containing fetters on the power of the female. In the facts and circumstances of this case, there can be no difficulty in holding that the property that was acquired by Mosst. Brahma Devi by virtue of the compromise decree in Title Suit No. 36 of 1947 would be an acquisition which would be covered by sub-section (1) of section 14 of the Succession Act. I am supported in my view by a decision of the Supreme Court in the case of Vaddeboyina Tolasamma and others v. Vaddeboyina Sesha Reddi (dead) by L. Rs. reported in A.I.R. 1971 SC 1944. This view also finds support from a Division Bench decision of this Court reported in A.I.R. 1981 Patna 103 (Mosst. Champa Devi and others. v. Madho Sharan Singh and others) to which I was a party as also by another decision of this Court reported in A.I.R. 1981 Patna 255 (Mossomat Baijoath Koer v. Maheshwari Devi and another). This being the position in law, defendant no. 1 Brahma Devi will be absolute owner of the property in question possessed by her on the coming into force of the Hindu Succession Act, 1956, and consequently she would have legal right and title to alienate those properties. The view of the trial Court to the contrary is based on misconception of law, is unsustainable in law and liable to be set aside. This point is accordingly decided. 9. Coming to the second point, Respondent nos. 6 and 18 died during the pendency of this appeal and their heirs not having been brought on record, the appeal has abated as against the heirs of these two respondents. Question is whether this abatement would result in the abatement of the whole appeal. Respondent no. 6 along with Respondent nos. 7 and 8 was also "purchaser from defendant no. 1 Mosst. Brahma Devi by virtue of a registered sale deed dated 1.11.1958, 0.81 acres of land of plot no. 83 having been transferred under that sale deed which land is, undisputedly, not covered by any of the sale deeds executed in favour of the other respondents. Defendant no. 7 and 8 was also "purchaser from defendant no. 1 Mosst. Brahma Devi by virtue of a registered sale deed dated 1.11.1958, 0.81 acres of land of plot no. 83 having been transferred under that sale deed which land is, undisputedly, not covered by any of the sale deeds executed in favour of the other respondents. Defendant no. 18 did not purchase any property from defendant no. 1. He appears to have been impleaded as a party as he managed the property on behalf of the plaintiffs till 1952. Obviously, therefore, the abatement of the appeal against Respondent no. 18 will not result in abatement of the whole appeal. Similar will be the position in respect of respondent no. 6 as he too, along with respondent nos. 7 and 8, purchased a particular portion of land from defendant no. 1 with which the other purchasers had no concern. ORDER :XXII rule 1 of the Code of Civil Procedure provides that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. The words 'right to sue' must be interpreted to mean "right to seek relief". The test to determine whether on the death of a defendant, the abatement is partial or complete is to see whether the suit can proceed in the absence of the deceased defendant, that is to say, it has to be examined whether the suit is one in which the liability of the defendant is joint and indivisible or joint and several. Respondent no. 6 along with Respondent nos. 7 and 8 having purchased a distinct item of property, quite different from the lands purchased by other members of defendants 2nd party, it is not a ease of the liability of defendants being joint and indivisible. Rather the liability is several. In such a situation, it must be held that the whole appeal will not abate On account of the death of Respondent nos. 6 and 18 and on account of their heirs not having been brought on record. Coming to the death of appellant no. 1 Omchand Soni he undisputedly died on 17.12.1983, in spite of appellant no. 1 having died as far back as on 17.12.1983, the respondents brought this matter to the notice of this Court only on 6.9.1984 by filing an application. Coming to the death of appellant no. 1 Omchand Soni he undisputedly died on 17.12.1983, in spite of appellant no. 1 having died as far back as on 17.12.1983, the respondents brought this matter to the notice of this Court only on 6.9.1984 by filing an application. The stand taken by the heirs of appellant is that this appeal being pending in this Court since the year 1969, they were not aware about its pendency earlier than 8.9.1984, when they learnt about the same for the first time on receipt of a registered letter sent by Mr. N. K. Agrawal, learned counsel for the appellants. Had it not been so, there was no earthly reason why the heirs of deceased appellant no. 1 would not have taken steps for substitution of their names in place of appellant no. 1. If this position is accepted, it would be a fit case where the abatement of the appeal resulting from the death of appellant no. 1 should be set aside and the names of the legal heirs of deceased appellant no. 1 should be substituted in place of deceased appellant no. 1, after condoning the delay made in filing the petition for substitution. Relying on a decision of the Supreme Court, reported in A.I.R. 1983 Supreme Court 355 (Bhagwan Swaroop and others v. Mool Chand and others), Sri R. K. Verma, learned counsel for the appellants, contended in that case the heirs were ORDER :ed to be substituted even after a delay of about three years even when the heirs were said to have knowledge about the death of the deceased. In the facts and circumstances of this case, particularly, in view of the long pendency of this appeal in this Court and for ends of justice the prayer for substitution, as made by the heirs of deceased appellant no. 1, in their petition filed on 20.9.1984, is allowed after setting aside the abatement of the appeal resulting from the death of appellant no. 1 and condoning the delay for making the application for substitution, their names are ORDER :ed to be substituted in place of the name of deceased appellant no. 1. Thus, the question of abatement of the whole appeal on account of the death of appellant no. 1 cannot arise and the two petitions, referred to above, are disposed of accordingly. 10. 1. Thus, the question of abatement of the whole appeal on account of the death of appellant no. 1 cannot arise and the two petitions, referred to above, are disposed of accordingly. 10. In the petition filed on 6.9.1984, a point was taken that Mosst. Brahma Devi and two others had also preferred an appeal against the impugned JUDGMENT : and decree which was numbered as F. A. No. 28 of 1969. This appeal namely, F. A. 28 of 1969, was dismissed for default. The contention raised was that the dismissal of F. A. 28 of 1969 would result in the dismissal of this appeal also. This contention is without any merit and is negatived. 11. Sri R. K. Verma, learned counsel for the appellants relying on the provisions of ORDER :XLI rule 4 and rule 33 of the Code of Civil Procedure, submitted that in case the decree passed by the trial Court is reversed, it should be reversed against all the alienees barring respondent no. 6 against whose heirs, the appeal has abated. The interest of respondent no. 6 and those of respondent nos. 7 and 8, they being purchasers under one common sale deed dated 1.11.1958; joint and indivisible and it is not possible to separate the interest. The position with respect to other alienees, however is different. The decree passed by the trial Court proceeds on a ground common to all the alienees arrayed as defence second party. Even in this appeal, the position is the same that is to say, the decision of this appeal proceeds on a ground common to all the alienees. In such a situation for ends of justice, I consider it necessary that the appeal should be allowed not only in favour of appellant no. 2 and the heirs of deceased appellant no. 1 but also in favour of other alienees arrayed as defendants 2nd party, except defendants 2nd party nos. 6, 7 and 8. For reasons stated above, the question of the, appeal being allowed against respondent no. 18 will not arise. 12. The result is that the appeal is allowed. The JUDGMENT : and decree of the trial Court, so far as they relate to defendants-2nd party, barring defendant-2nd party nos. 6, 7 and 8, are set aside. The plaintiffs suit, so far as it relates to defendants-2nd party, barring respondent nos. 18 will not arise. 12. The result is that the appeal is allowed. The JUDGMENT : and decree of the trial Court, so far as they relate to defendants-2nd party, barring defendant-2nd party nos. 6, 7 and 8, are set aside. The plaintiffs suit, so far as it relates to defendants-2nd party, barring respondent nos. 6, 7 and 8 and 18 is dismissed. In the facts and circumstances of this case, however there shall be no ORDER :for costs either of this Court or of the trial Court an4 the parties are directed to bear their own costs of both the two stages of litigation.