KANCHAN DAKUANI v. TARINI DAKUANI — 1991 DIGILAW 382 (ORI)

A. K. PATNAIK, J. ( 1 ) DEFENDANT No. 2 is the appellant in this Second Appeal against the judgment dated 8-12-1980 rendered by the learned Subordinate Judge, Aska, in Title Appeal No. 27 of 1977 reversing the decision dated 6-9-1977 passed by the learned Munsif, Aska, in Title Suit No. 162 of 1975. ( 2 ) THE plaintiff and defendant No. 2 are the daughter of original defendant No. 1 Rahasa Dakuani, who was the widow of Khali Dakua who died in 1953. Rahasa, after the death of her husband, executed two deeds of settlement. Ext. 3 dated 23-3-1953 is the deed of settlement executed by her in favour of the plaintiff and her husband. On 30-5-1975, Rahasa (original defendant No. 1) made a fresh settlement Ext- A in favour of defendant No. 2 in respect of the property covered under Ext. 1. The plaintiff instituted a suit for declaring Ext. A invalid and for other consequential reliefs. Defendant No. 1, the mother admitted execution of Ext. 1 and Ext. A. She made a fresh settlement in favour of defendant No. 2 when she was not looked after by the plaintiff and her husband. The trial Court dismissed the suit holding that defendant No. 1 was in possession of the property and absolute interest had not been transferred in favour of the plaintiff and the conditions of the settlement having been violated defendant No. 1 was entitled to execute Ext. A. In appeal, the lower appellate Court held that Ext. 1 was acted upon and the plaintiff was in possession thereto and nonfulfilment of the conditions did not render the settlement void nor did it entitle defendant No. 1 to convey the property in favour of defendant No. 2. So holding, it reversed the decision of the trial Court and decreed the suit. ( 3 ) THE only question raised by Mr. Swamy, the learned counsel for the appellant, was that under Ext. 1 no title was conveyed to the plaintiff and her husband and hence it was not a gift but was in the nature of a Will and it was open to defendant No. 1 to make the settlement in favour of defendant No. 1 when the conditions were not fulfilled. Mr. Deepak Misra, the learned counsel for the plaintiff-respondent, has however urged that the lower appellate Court correctly interpreted the recitals of Ext. Mr. Deepak Misra, the learned counsel for the plaintiff-respondent, has however urged that the lower appellate Court correctly interpreted the recitals of Ext. 1 as conveying title in praesenti as having been acted upon and the plaintiff having acquired absolute title on the commencement of the Hindu Succession Act, it was not open to defendant No. 1 to make a further conveyance in respect of the very property. ( 4 ) THE lower appellate Court has held upon a consideration of the evidence :". . . . . . THE evidence led in this case goes to show that Ex. 1 was acted upon and in pursuance thereto plaintiff was possessing the land but once the settlement deed is given effect to and possession is given to the plaintiff, the other condition mentioned in the document may be redundant to disentitle the plaintiff over the properties covered under Ex. 1. The contention of the learned advocate for the respondent that the document Ex. 1 was ab initio void is not tenable even though in 1953 defendant No. 1 was a limited owner. . . . . "in view of the evidence and having regard to the recitals of the document, it cannot be disputed that Ext. 1 was acted upon. The document recites:"i put you in possession of the property today and you shall pay the land revenue. You and I shall enjoy the property and stay in the house. . . . . " ( 5 ) THE learned counsel for the plaintiff-respondent referred me to a decision of this Court in Narasingha Nabak v. Dhima Padhan, 1971 (1) CWR 278, where a decision of this Court in Tila Bewa v. Mona Bawa, AIR 1962 Ori 130 , was referred to. Therein, it was held that a direction for maintenance shall be regarded as only a pious wish on the part of the donor and the donor has no power to revoke the gift for failure of the donee to maintain the donor. Following the aforesaid decision, I hold that Ext. 1 - The deed of settlement created a right in praesenti in favour of the plaintiff. ( 6 ) THE next question for consideration is, Did the plaintiff acquire absolute title on the commencement of the Hindu Succession Act? Following the aforesaid decision, I hold that Ext. 1 - The deed of settlement created a right in praesenti in favour of the plaintiff. ( 6 ) THE next question for consideration is, Did the plaintiff acquire absolute title on the commencement of the Hindu Succession Act? The plaintiff, a donee from a limited owner prior to the commencement of the Hindu Succession Act became an absolute owner of the property on the commencement of the said Act. In Anath Bandhu Sen Mondal v. Smt. Chanchala Bala Dasi, AIR 1976 Cal 303 , a Division Bench of the Calcutta High Court held that S. 14 did not contemplate cases where the limited owner before the commencement of the Act had already parted with possession by way of deed of gift or dead of sale. S. 14 was not meant to benefit an alienee. But, transfer of the limited interest to another woman would not render the interest of the transferee absolute on the commencement of the Act. The contrary, view taken by the Delhi High Court in a Full Bench decision in Smt. Chinti v. Smt. Daulta, AIR 1968 Delhi 264 (FB), was referred to and dissented from. There it was held that a daughter in whose favour the deed was made before the commencement of the Act by the widow mother became the full owner of the gifted property with effect from the date of commencement of the Act by virtue of S. 14 when the daughter-donee was in possession of the gifted property upon the date of the commencement of the Act. The anomaly that whereas a male-donee in a similar circumstance remained a limited owner, but the female-donee became absolute owner by virtue of S. 14, was inherent in the section itself and his right to become absolute owner could not be denied on that ground. The possession of the donee-daughter before the commencement of the Act, could by no means be considered to be illegal and she was certainly not a trespasser. Her possession however restricted the character of her title, fell within the purview of S. 14 (1 ). The possession of the donee-daughter before the commencement of the Act, could by no means be considered to be illegal and she was certainly not a trespasser. Her possession however restricted the character of her title, fell within the purview of S. 14 (1 ). Their Lordships in the Full Bench gave a wide and liberal interpretation to the provisions contained in S. 14 (1) of the Hindu Succession Act and held that the donee-daughter who was holding a limited interest, by virtue of a transfer by her widow mother acquired absolute interest. Having regard to the object with which the provision was enacted, I am in respectful agreement with the decision taken by the Full Bench of the Delhi High Court and respectfully decline to follow the view expressed by the Division Bench of the Calcutta High Court and some other Courts. The approach of the Delhi High Court appeals to me and I hold that the plaintiff acquired absolute interest upon the commencement of the Hindu Succession Act and her right could not be defeated by Rahasa by executing the deed of settlement Ext. A. I, therefore, uphold the decision of the lower appellate Court and find no merit in the second appeal. ( 7 ) ). In the result, the second appeal is dismissed. But, in the circumstances, there would be no order as to costs. Appeal dismissed.