Amulya Charan Dhara v. Gour Hari Jana — 1991 DIGILAW 136 (CAL)

JUDGMENT: This is a defendants appeal against a judgment and decree passed by the Additional District Judge, 3rd Court, Midnapore, confirming a decree of declaration of title and permanent, injunction passed by the Second Court of Munsif, Tamluk. The plaintiffs respondents filed a suit for declaration of title and permanent injunction in respect of certain land which they claimed to have inherited from their mother. The defendants appellants on the other hand claimed their title on the basis of a deed of gift executed long ago by the plaintiff's maternal grandfather. Before stating the facts the following genealogy may be looked into as it would facilitate to understood the facts clearly. Narayan Ch. Dhara Haricharan purnima (died in 1333 B.S.) Parameswar (d. in 1371 B.S.) Kuntibala (d. 1347 B.S.) Baradamoyee Tarendra Surendra Kiranbala D.3 Jamuna Rasbmoni Menoka Gour hari Amulya Satyacharan Pl.2 D.1359B.S. D.1356 B.S. Pl.1 D.1 D.2 2. The disputed property originally belonged to Haricharan. He gifted this property along with other properties to his brother's son Surendra by a registered deed dated 12.7.25. The most essential conditions of this deed, of gift were as follows: “........... I am making a gift of a total of three bighas nine kathas and fifteen chhataks of land having an annual revenue of thirteen rupees six annas and, six pies with structures thereon in favour of you Surendra Nath Dhara With the stipulation that you being the owner of the property will continue to enjoy it by mutating your name in be zaminder's serista and that your heirs will also be entitled to enjoy the same after your death. So Long, however, I and my wife shall remain alive, this demised property shall remain under our management and we shall earn our living on the usufructs of the property. Neither you nor your heirs will have any right to transfer the property during the lifetime of myself and my wife. Similarly we shall also not be able to transfer it. You and your heirs will have the right to transfer the property after our deaths. If you meet your death during the lifetime of myself and my wife, even then the property will devolve on your heirs. Similarly we shall also not be able to transfer it. You and your heirs will have the right to transfer the property after our deaths. If you meet your death during the lifetime of myself and my wife, even then the property will devolve on your heirs. If by the grace of God any son is born to my wife through me, then in that event the said son will get half of this demised property and the remaining half will belong to you. If, however, a daughter is born to my wife instead of a son and if she is not married during my life time then you will have the responsibility of giving her in marriage to a suitable groom and the expenditure therefore will be borne by you. Both you and your heirs will be bound by this condition. The demised property will never devolve on my daughter or my grandchildren through her and if they even make any claim over this property the same shall not be entertained.................” 3. Haricharan died on the 12th Sravan, 1331 B.S. corresponding to August, 1925, that is, within one month of the execution of the deed of gift. Purnima died in 1371 B.S. Kunti Bala, the daughter of Purnima died in 1347 B.S. Surendra died in 1384 B.S. Plaintiffs respondents are the sons of Kunti Bala. They claim that their grandmother Purnima was in possession of the suit property when the Hindu Succession Act, 1956 came info force and that as such she acquired an absolute interest in the said property. As regards the deed of gift their case is that it was a fraudulent document being executed by the exertion of undue influence on Haricharan by his brother Parameswar. They further asserted that Purnima was in possession of all the gifted properties all along and that she sold a good number of plots. After her death the properties were inherited by her only surviving daughter Kunti Bala and after her the plaintiff-respondents inherited the same as heirs of their mother. 4. The Learned Munsif found that the allegation of fraud and undue influence against Parameswar was not proved. He, therefore, found the deed of gift to be a genuine document. After her death the properties were inherited by her only surviving daughter Kunti Bala and after her the plaintiff-respondents inherited the same as heirs of their mother. 4. The Learned Munsif found that the allegation of fraud and undue influence against Parameswar was not proved. He, therefore, found the deed of gift to be a genuine document. However, although he accepted the deed of gift he found that Purnima was in possession of the suit property at the time of coming into force of the Hindu Succession Act, 1956 with a limited interest as per terms of the deed of gift. He, therefore, held that Purnima's limited interest was converted to absolute interest under the provisions of sub-s. (1) of s. 14 of the Hindu Succession Act and that the property devolved on her daughter Kunti Bala through whom the plaintiffs inherited the same. 5. The learned Additional District Judge did not reverse the finding of the Munsif that the deed of gift was not vitiated by fraud and undue influence. He held that the restrictions in, posed in the deed of gift being violative of ss. 10 and 11 of the Transfer of Property Act, 1882 were void. But he found that the gift was not accepted by anybody and that as such it was void under s. 122 of the Transfer of Property Act. He agreed with the Munsif that Purnima being in possession of a life-estate at the time of coming into force of the Hindu Succession Act became full owner of the property under s. 14(1) of the said Act. He, accordingly dismissed the appeal and affirmed the judgment and decree passed by the Munsif. 6. Mr. S.P. Roychowdhury appearing on behalf of the appellants submits that the court below erred in law in holding that s. 14(1) of the Hindu Succession Act was applicable here. According to him the possession of Purnima was covered by s. 14(2) of the Act and that Purnima's possession on the basis of the deed of gift did not ripen into full ownership. As regards the infirmity of the gift for its non-acceptance by anybody Mr. Roy Chowdhury argues that it was a new point raised by the 1st appellate court. As regards the infirmity of the gift for its non-acceptance by anybody Mr. Roy Chowdhury argues that it was a new point raised by the 1st appellate court. However, the averments made in the plaint show that Parameswar wanted to grab the property by making a fraudulent deed and that it cannot be conceived that he did not accept the gift on behalf of his minor son. For a proper consideration of the nature of Purnima's possession of the property at the time of her husband's death it is necessary to examine the deed of gift and the intention of the donor closely in the light of the provisions of the Transfer of Property Act, 1882. 7. I have set out the most essential terms of the deed of gift in paragraph 2 above. It is clear from the said terms that Haricharan Intended to demise the property to his nephew Surendra by giving him full ownership but he postponed the demise until the death of himself and his wife Purnima as he wanted to accept the usufructs of the property for their maintenance. He created a vested estate for Surendra subject to only one condition that if any son was born to him through his spouse, such son would be entitled to half of the property. His positive intention was that the demised properly would not devolve on his daughter or his grandsons after their deaths. In short if he died without leaving any son, his intention was to donate the entire property to Surendra and his heirs. Judging the intention of the donor it cannot be said to be a rash of unconscionable document. He made provisions for himself, hi, wife, unborn son and daughter and wanted and confine the property to the descendants of his father's family had the deed been executed on the terms engineered by Parameswar, would he agree to those term, particularly when they restricted the present enjoyment of the property by the done? Certainly not. So the Munsif's finding that no fraud or undue influence vitiated the deed seems to be a correct one. 8. Coming now to the legality of the deed. The learned Additional District Judge has held that as it was a gift the conditions/restrictions imposed under the deed is void. Certainly not. So the Munsif's finding that no fraud or undue influence vitiated the deed seems to be a correct one. 8. Coming now to the legality of the deed. The learned Additional District Judge has held that as it was a gift the conditions/restrictions imposed under the deed is void. The learned Judge has not specified which of the conditions have made the gift void Section 126 of the Transfer of Property Act deals with the suspension or revocability of a gift. The Section reads thus :- "126. The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable, wholly or in part, at the mere will of the donor is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferee-s for consideration without notice." In this case barring the contingency of the birth of a possible son there was no question of revocation of the gift. It has been recited in the deed that in the event of a son being burn to the donor, the said son shall get half of tile property. To that extent these was a revocation of half of the property. But was the birth of a son at that date depended at his mere will? Presumably not. He was suffering from T.B. and he died shortly after the execution of the deed of gift. It the implied revocation was at the mere will of the donor, the condition as to revocation to the extent agreed to, would have been void and in any case it would endure to the benefit of the donee. No son was, however, born to the donor and the condition as to revocation lapsed. It seems that the learned Additional District Judge was under the impression that any condition in a deed of gift is void and the gift in that case is free of conditions. No son was, however, born to the donor and the condition as to revocation lapsed. It seems that the learned Additional District Judge was under the impression that any condition in a deed of gift is void and the gift in that case is free of conditions. This impression is, however, not correct Section 127 of the Transfer of Property Act deals with onerous gifts, i.e. gifts burdened by obligations. It is therefore, not correct to say that an obligation attached to a gift is void and can always be ignored. 9. Sections 10 and 11 of the Transfer of Property Act have been referred to by the lower appellate court as affecting the validity of the transfer effected by the deed of gift. The learned Additional District Judge has not discussed these sections. Section 10 refers to a condition in a deed of transfer absolutely restraining the transferee or any person claiming under him from parting with, or disposing of his interest in the property. Section 11 refers to a condition that the transferee of a particular property acquiring an absolute interest in the property by such transfer shall enjoy the property in a particular manner. On a perusal of the deed of-gift It would appear that there was no condition in the deed that the donee was restrained absolutely from transferring the properly or enjoying the property in a particular manner. What was stipulated in the deed was a temporary suspension of the power of disposal until the death of the donor and his wife. The restriction was imposed in order to enable the donor and his Wife to enjoy the usufructs of the property which was one of the conditions of the deed of gift. 10. From the recitals in the deed it is clear that Haricharan intended to create an absolute interest in favour of Surendra in respect of half of the property if per chance any son was born to him and in respect of the entire property in case no such son was born. Simultaneously he intended to retain control of the property until the death of himself and his wife. His intention was, therefore, that the transfer in favour of Surendra would operate to create an interest in his favour which was to take effect after the life time of two living persons. Simultaneously he intended to retain control of the property until the death of himself and his wife. His intention was, therefore, that the transfer in favour of Surendra would operate to create an interest in his favour which was to take effect after the life time of two living persons. As Surendra was to get his interest absolutely with the death of the last surviving spouse in relation to the donor it did not offend the rule against perpetuity. A provision was made that even if Surendra died during the life time of Haricharan or his wife the property would devolve on the heirs of Surendra. This makes it all the more clear that the interest created in favour of Surendra was a vested interest (more so when the interest would devolve on the happening of some specified events which must happen). This interest cannot, therefore, fail. 11. The learned Additional District Judge held that the gift was not accepted. According to D.W. 1 Satyeswar Dharha Surendra was a minor when the deed of gift was executed. The Additional District Judge has remarked that there is no evidence that some one on his behalf accepted the gift. The gift was effected in 1925. The defendants are not expected to prove the events during the minority of their father. As regards the plaintiff; none of them was born when the deed was executed. It is curious to seek direct evidence on t his point. It is to be ascertained from other collateral circumstances. If it was a fraudulent document (a fact alleged but disbelieved) the acceptance of the gift would be a prominent part of fraud. The suit properly has been recorded in the R.S. Khatian in the name of Surendra showing the possession of Purnima in life estate. The name of Surendra has been recorded along with other co-sharers. Both sides have adduced evidence regarding recent possession, but such evidence does not help to prove how and when the gift was accepted. The important fact to be considered is that the enjoyment of the property by Surendra for the purpose of usufructs was postponed by Haricharan himself. So naturally the property was in possession of Haricharan and Purnima until their deaths. So non-possession of the property by Surendra was not any decisive proof that the gift was, not accepted. The important fact to be considered is that the enjoyment of the property by Surendra for the purpose of usufructs was postponed by Haricharan himself. So naturally the property was in possession of Haricharan and Purnima until their deaths. So non-possession of the property by Surendra was not any decisive proof that the gift was, not accepted. Subsequent dispute between the parties and the recording of record of rights in the name of Surendra can only be explained by the fact that the claim over the property by Surendra and his heirs was based on the deed of gift. All these points were not considered by the Additional District Judge and his cryptic finding regarding the invalidity of the deed of gift for want of acceptance cannot be accepted. 12. In the above background of facts let us enter the arena of legal battle as to whether Purnima's possession had ripened into an absolute ownership. The centre of conflict here is s. 14 of the Hindu Succession Act, 1956. The appellants have stressed that sub-s. (2) of the said section would be attracted here. On the other hand the contention of the respondents is that sub-s. (1) of the section would apply to the case. Section 14 of the Hindu Succession Act, l956 reads as follows :- "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 the Act, shall be held by her as full owner there of 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 device, or at a partition, or in lieu of maintenance or arrears of maintenance of 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 properly held by her as Stridhan immediately before the commencement of this Act. (2) Nothing contained in sub-s. (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". The provisions of this section have come under judicial scrutiny in innumerable cases before the High Courts and the Supreme Court evidently because of the suddenness of its advent and the wider scope of its application In the judgments of both the lower courts emphasis has been given to the acquiring of property in lieu of maintenance (the expression appears in the Explanation to sub-s. (1) of s. 14) and two decisions of the Supreme Court have been cited in aid of interpretation of the expression. One is Tulasamma's case (V. Tulasama v. V. Sesha Reddi AIR 1977 SC 1944 ), a very famous case where the scope of a woman's limited estate being converted to an, absolute estate where the woman concerned got the property for restricted use of maintenance only was elaborately discussed and in this connection the difference between sub-ss. (1) and (2) of s. 114 of the Hindu Succession Act was also elucidated. In the said case a woman claimed maintenance out of joint family property at the hand of her deceased husband's brother. The claim was denied and in execution of the decree a compromise was effected allotting a certain property to her for her maintenance and giving her a limited interest to such property. It was held that she acquired the properly within the meaning of sub-s. (1) of s. 14 of the Hindu Succession Act and became an absolute owner of the property. It was broadly held that where a Hindu female acquired a properly by partition or in lieu of maintenance it was in virtue of a pre-existing right and such an acquisition could not be covered by Sub. S. (2) while on the other hand "here property of a female Hindu acquired for the first time as a grant without any pre-existing right under a gift, will, instrument, decree, order or award terms of which prescribe a restricted estate in the property, sub-s. (2) would apply. 13. S. (2) while on the other hand "here property of a female Hindu acquired for the first time as a grant without any pre-existing right under a gift, will, instrument, decree, order or award terms of which prescribe a restricted estate in the property, sub-s. (2) would apply. 13. It is not easy to make a purposeful distinction between the pre-parties acquired by a female Hindu under sub-s. (1) and sub-s. (2) by a verbatim reading of the section. As for example, a properly with a restricted estate may be acquired by gift by a female Hindu but whether it would Come under sub-s. (1) or sub-s. (2) would depend on the nature of, and for the purpose for which, the property was given. Paragraph' 40 of the judgment in Tulasamma's case is very instructive and useful for the interpretation of s. 14 The said paragraph is set out below: "Finally, we cannot overlook the scope and extent of a Proviso. There can be no doubt that the sub-s. (2) of s. 14 is clearly a Proviso to s. 14(1) and this has been so held by this court in Badri Parshad’s case ( AIR 1970 SC 1963 ). It is well settled that a provision in the nature of a Proviso merely carves out an exception to the main provision and cannot be interpreted in a manner so as to destroy the effect of the main provision or to render the same nugatory. If we accept the arguments of the respondents that sub-s. (2) to s. 14 would include even a property which has been acquired by a Hindu female at partition or in lieu of maintenance then a substantial part of the Explanation would be completely set at naught which could never be the intention of the proviso. Thus we are clearly of the opinion that sub-s. (2) of s. 14 of the Proviso should be interpreted in such a way so as not to substantially erode S. 14.1) or the Explanation thereto. In the present case we feel that the proviso has calved out completely a separate field and before it can apply three conditions must exist :- (i) that the property must have been acquired by way of gift, will, instrument, decree, order of the court or by an award. In the present case we feel that the proviso has calved out completely a separate field and before it can apply three conditions must exist :- (i) that the property must have been acquired by way of gift, will, instrument, decree, order of the court or by an award. (ii) that any of these documents executed in favour of a Hindu female must prescribe a restrictive estate in such property; and (iii) that the instrument must create or confer a new right, title or interest on the Hindu female and not merely recognize or give effect to a preexisting right which the female Hindu already possessed. Where any of these documents are executed but no restricted estate is prescribed, sub-s. (2) will have no application Similarly when these instruments do not confer any new title for the first time on the female Hindu s. 14(2) would have no application. It seems to me that s. 14(2) is a salutary provision which has been incorporated by the Parliament for historical reason in order to maintain the link between the shastric Hindu Law and the Hindu Law which was sought to be changed by recent legislation so that where a female Hindu became possessed of property not in virtue of any preexisting right but otherwise, and the grantor chose to impose certain conditions on the grantee, the legislature did not want to interfere with such a transaction by obliterating or setting at naught conditions imposed.” The other case referred to is Gulwant Kaur & Anr. vs. Mohinder Singh & Ors. AIR 1987 SC 2251 . In this case Gulwant Kaur, a Hindu wife, got come land from her husband in lieu of maintenance. The land was subsequently sold by her husband ignoring her implorations. The purchaser brought a suit to retrain Gulwant Kaur from interfering with his possession. The Supreme Court, on an analysis of the legal position, restored the order of a Single Judge in which he held that the property being given in lieu of maintenance became the absolute property of the wife. 14. Both the cases referred to above involve allotment of some immovable property to a Hindu female in lieu of maintenance a mode of acquisition of property expressly mentioned In the Explanation to sub-s. (1) of S. 14 of the Hindu Succession Act. 14. Both the cases referred to above involve allotment of some immovable property to a Hindu female in lieu of maintenance a mode of acquisition of property expressly mentioned In the Explanation to sub-s. (1) of S. 14 of the Hindu Succession Act. It is necessary to examine how the tests mentioned in the above cases apply to the facts of the present case and whether, if at all, sub-s. (1) or sub-s. (2) would apply to them. 15. The first point to be considered is whether the property in question was acquired by Purnima in lieu of her maintenance. The facts of the case analyzed hereinbefore would show that the property was actually demised to Surendra but he was to acquire full ownership of the same until the interest of two successive life interest holders ceased. The property was gifted by the husband Haricharan but the interest created in the transferred was to take effect after the life time of Haricharan and Purnima. It was, therefore, not a transfer of land to a Hindu female in lieu of maintenance. Purnima happened to possess the Land fortuitously, Surendra had a vested interest in it and Purnima could not acquire it. It is well settled that each and every possession of property by a Hindu female on the date of coming into force of the Hindu Succession Act, does not confer an absolute title on her. Evidently possession coming under sub-s. (2) of s. 14 does not confer any such title. A possession by a trustee or by a legal representative is not covered by s. 14(1). The real test is if the Hindu female possessed it independently in her own right having some title over it. Put to this test it would be found that Purnima was possessing the land as a surviving beneficiary only. 16. It is needless to say that the case hinges on the point that the disputed land was given to Purnima in lieu of her maintenance. The term in the deed was that Haricharan and Purnima were to get the usufructs of the property until their deaths. It is pertinent to note that the majority of the property was sold by Purnima within a short time after her husband's death. In the recitals in the relevant deeds she mentioned that Parameswar got a sale deed fraudulently. This has already been disbelieved by the court. It is pertinent to note that the majority of the property was sold by Purnima within a short time after her husband's death. In the recitals in the relevant deeds she mentioned that Parameswar got a sale deed fraudulently. This has already been disbelieved by the court. So it was not correct to say that she was utilizing the property for her maintenance. If she was not possessing the land in her own right, however, inchoate that right might be, and in lieu of maintenance, her claimed title under s. 14(1) of the Act could not be considered Purnima did not inherit the property from her husband as he had already created a vested interest in favour of Surendra on the basis of a deed of gift. So her possession was on the basis of the terms of the deed independently and having a restricted interest given by the deed. Judging the entire circumstances, therefore, it must be held that sub-s. (1) of s. 14 of the Hindu Succession Act would not be attracted here. Purnima did not "acquire" the property from anybody and it was not given to her in lieu of maintenance, there was clear direction in the deed of gift that Haricharan and Purnima would not be able to dispose of the property as already a vested interest was created in respect thereof in favour of Surendra. But Purnima sold the property soon after the death of her husband treating the deed as 8 scrap of paper. At that time she did not even dream of a possibility of acquiring any absolute estate in the property. So she acted malafide and her action manifested that she did not require the property for her maintenance. 17. Fur the reasons above, it must be held that the Judgments of both the courts below were not correct. In the result, this appeal succeeds. The appeal is allowed 'with costs. The judgments and decrees of both the first appellate court and the trial court are set aside and the suit be dismissed with costs. Judgments of the two courts below set aside; appeal allowed and suit dismissed with costs.