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2000 DIGILAW 626 (KAR)

A. K. LAXMANAGOUDA v. A. K. JAYARAM

2000-09-06

H.N.TILHARI

body2000
H. N. TILHARI, J. ( 1 ) THIS appeal under Section 96 of the Code of Civil Pro-cedure has arisen from the judgment and decree 20-1-1997 in O. S. No. 87/93 whereby the trial Court (Civil Judge, Chikmagalur) has dismissed the plaintiff/appellant's suit for decree for declaration that after the life time of the 2nd defendant, the plaintiff becomes the absolute owner of the schedule property and for decree for permanent injunction restraining the defendants/respondents from alienating the suit schedule property in any manner and from cutting and removing the timber or shade trees standing in the schedule property. ( 2 ) THE brief facts of the case giving rise to this appeal are that Kenchegowda, his two sons A. K. Lakshmana Gowda and A. K. Jayaram as well as Smt. S. Yeshodamma, wife of Kenchegowda and mother of the plaintiff/appellant and defendant/respondent No. 1 constituted a joint family. That according to the plaintiff's case, on 28-3-1980, with the consent of all the members, like Kenche Gowda effected a partition vide partition deed executed and registered on 28-3-1980 and the property was divided into three shares, one share of the property namely the schedule property was retained by Kenche Gowda while other two shares of the joint familiy property were given to the plaintiff/appellant and defendant/respondent No. 1. So far as the schedule property is concerned, according to the plaintiff/appellant's case. Sri. Kenche Gowda, father of the plaintiff and defendant No. 1, retained it with himself as property falling in his share. The plaintiff asserted that on 28-1-1987, during his life time and life time of his wife namely the 2nd defendant, Kenche Gowda executed a Will of the schedule property. According to the plaintiff's case, under that Will executed by Kenche Gowda, life interest was given in the schedule property to the defendant/respondent No. 2 Smt. Yashodamma. The plaintiff's case is that Kenche Gowda having died on 19-5-1991, and on and after the death of Kenche Gowda, Smt. Yashodamma inherited only limited or life estate in scheduled properties under the Will. The plaintiff further alleged that on 30-3-1993, the defendant/respondent No. 2 Smt. Yashodamma executed a registered sale-deed of the suit schedule property in favour of defendant/respondent No. 1. The plaintiff further alleged that on 30-3-1993, the defendant/respondent No. 2 Smt. Yashodamma executed a registered sale-deed of the suit schedule property in favour of defendant/respondent No. 1. The plaintiff alleged that the defendant/respondent No. 2 Smt. Yashodamma had no right to sell the suit schedule property and she could not sell the suit schedule property as she had the life interest therein only and so the sale deed 30-3-1993 cannot bind the plaintiff/appellant, and the plaintiff/appellant's right to ownership of the schedule property cannot be affected thereby. The plaintiff alleged that the defendants 1 and 2 i. e. , respondents started threatening to alienate the suit property and standing timber to third persons in order to defeat the plaintiff/appellant's claim. The plaintiff alleged that in the above circumstances, he has been compelled to file the suit and has filed this suit. The defendants 1 and 2 filed the written statement and the case of the defendants has been at the time of partition it was specifically agreed that the schedule property should go to defendant No. 2 absolutely after the death of Kenche Gowda and it is false to state that late Kenche Gowda made the Will 28-1-1987 bequeathing the suit schedule properties to plaintiff and creating only a life interest in favour of defendant No. 2. In alternative it was asserted that even otherwise defendant No. 2 had a right of maintenance over the family properties at the time of partition and it continued even after the death of Kenche Gowda, that the life interest in favour of defendant No. 2 was created in lieu of her pre-existing right of maintenance over the suit schedule properties and that the same, as such, stood enlarged into an absolute right by virtue of provisions of Section 14 (2) of the Hindu Succession Act. The defendants further asserted that the defendant No. 2 sold the schedule property for valuable consideration under the registered sale-deed 30-3-1993. The defendants further asserted that it is false to contend that the defendant No. 1 i. e. , respondent No. 1 did not derive any title to schedule properties under the said deed. The defendants alleged that the defendant No. 2 was forced to alienate the suit schedule property to defendant No. 1 to clear the debts of her deceased husband and to raise funds for the marriage of her unmarried daughter. The defendants alleged that the defendant No. 2 was forced to alienate the suit schedule property to defendant No. 1 to clear the debts of her deceased husband and to raise funds for the marriage of her unmarried daughter. ( 3 ) ON the basis of the pleadings of the parties, the trial Court framed the following issues :- (1) Whether the plaintiff proves that he has valued the suit properly and the Court fee paid is sufficient? (2) Whether the plaintiff proves that his father Kenche Gowda bequeathed the suit schedule property to the plaintiff and created only life interest to the 2nd defendant? (3) Whether the plaintiff proves that the 2nd defendant has no right or title to the suit schedule property except for the life interest? (4) Whether the plaintiff proves that the sale deed executed by the 2nd defendant in favour of 1st defendant is not binding on the plaintiff? (5) Whether the plaintiff proves that he is entitled for declaration as prayed for in the plaint? (6) Whether the plaintiff proves that he is entitled for permanent injunction as sought for in the plaint? (7) Whether the defendants prove that the suit schedule property is the absolute property of the 2nd defendant? (8) Whether the defendants prove that the 2nd defendant and deceased Kenche Gowda have incurred debts for family necessity and the suit schedule property is sold to discharge the debts and to celebrate the marriage of the daughters? (9) Whether the defendants prove that the suit is not maintainable as pleaded in para 6 of the written statement? (10) What order or decree? ( 4 ) THE trial Court, after a consideration of the materials on record, dismissed the plaintiff's suit after having recorded the following findings :-THAT the plaintiff proves that his father bequeathed the suit schedule property to the plaintiff and created only life interest to the 2nd defendant and life interest created was really in lieu of maintenance and as such, the interest became absolute and not limited and Section 14 (1) of the Hindu Succession Act applied and the defendant No. 2 became the absolute owner and Section 14 (2) did not apply. The learned Civil Judge held that the property was sold to make arrangement of money for the marriage of the daughter and the sale-deed in favour of the defendant No. 1 was for valid consideration. The learned Civil Judge held that the property was sold to make arrangement of money for the marriage of the daughter and the sale-deed in favour of the defendant No. 1 was for valid consideration. Having recorded these findings, the trial Court dismissed the plaintiff's suit for declaration and injunction. ( 5 ) FEELING aggrieved from the judgment and decree of the trial Court, the plaintiff has come up in appeal before this Court. ( 6 ) WE have heard Sri C. N. Kamat, learned counsel for the appellant at length. The learned counsel for the appellant strenuously submitted that the Will indicates that the defendant No. 2 was given only life estate and after defendant No. 2, the widow of Kenche Gowda, the schedule property had to vest in the plaintiff/appellant as full owner and therefore she could not execute the sale-deed in respect thereof in favour of either defendant/respondent No. 1 or any one. ( 7 ) THE first and foremost question to be considered in this appeal is, whether the Will 28-1-1987 conferred life estate or right of absolute ownership in favour of Smt. Yashodamma and whether Section 14 (1) or Section 14 (2) of the Act applies to this case? Another further question is, whether the sale deed 30-3-1993 is valid and is effective? ( 8 ) IT may be mentioned here that so far as the bare facts are concerned, as stated by the appellant's counsel, there is no dispute amongst the parties as regards the partition alleged nor there is any dispute regarding execution of Will 28-1-1987 by Kenche Gowda nor there is dispute about the execution of sale deed 30-3-1993 by defendant/respondent No. 2 in favour of defendant/respondent No. 1. ( 9 ) THE main contention of the appellant's counsel is and has been that, under the Will in question 28-1-1987, only life interest was conferred to Smt. M. S. Yashodamma and so she could not execute the sale deed 30-3-1993, and it was asserted by the appellant, to be not binding on the appellant. In the Will 28-1-1987 in the earlier part it is indicated that the Will was executed in favour of A. K. Lakshmana Gowda, appellant (before this Court) by his father Kenche Gowda. In the Will 28-1-1987 in the earlier part it is indicated that the Will was executed in favour of A. K. Lakshmana Gowda, appellant (before this Court) by his father Kenche Gowda. In the Will, Kenche Gowda had stated that he had in all seven daughters and out of them six had been already married and all are residing with their respective husbands. In the Will it is further mentioned that one daughter namely Parvathy is still unmarried and so she is living under the care of Kenche Gowda, her father. He further mentions that apart from daughters, he has got two sons namely the present plaintiff appellant and present respondent No. 1 (A. K. Lakshmana Gowda and A. K. Jayarama Gowda ). In the Will it has further been mentioned that there has been a mutual partition by registered partition deed 28-3-1980 amongst Kenche Gowda and his aforesaid two sons and each of them got their respective shares in the properties and that by virtue of that partition deed, properties mentioned in schedule 'c' to the partition deed was allotted to A. K. Jayaram, respondent No. 1. He further mentions that the properties, as mentioned in the schedule to the Will, were allotted to his share i. e. , Kenche Gowda's share. About those properties, in order to avoid any complications, he has executed this Will and in the Will, with reference to those properties coming to the share of Kenche Gowda, it has been provided as under :-"you have been taking care of myself, my wife Yashodamma and my daughter Parvathi and I have the confidence that you will continue to look after us and the following properties both moveables and immoveables shall go only to you after my wife's life time and my life time and you shall become the full owner by this Will and no body shall have any right whatsoever and this Will shall take effect after the life time of my wife and myself. "again after giving the details of the pro-perties in that Will which has again been mentioned, it has been provided as under :-"all these properties should go to you after my life time and that of my wife's life time and you shall become the full owner and they shall not go to any body else. "again after giving the details of the pro-perties in that Will which has again been mentioned, it has been provided as under :-"all these properties should go to you after my life time and that of my wife's life time and you shall become the full owner and they shall not go to any body else. "in the later part again it has been provided,"the above properties shall go to you after my and my wife's life time, and you shall become the full owner and get the khatha changed to your name. "a reading of the Will, in the first place in my opinion, makes it clear that during the life time of Kenche Gowda and his wife Yashodamma, they will remain the owners and it is after their death, A. K. Lakshmana Gowda, for whom expression used in the Will is "you", shall become the full owner and the properties are not to go to anybody else. A reading of the Will, in my opinion, thus provides that till Kenche Gowda who executed the Will is alive, he shall remain as owner and in the same way, till Smt. Yashodamma, namely the wife of Kenche Gowda, is alive, she will remain as full owner as he himself has been and then after their death i. e. , death of both Kenche Gowda and his wife, the legatee namely A. K. Lakshmana Gowda will become full owner of the Will no where provides either by express terms or by implication that she i. e. , the widow or wife of Kenche Gowda will be limited owner with no right to transfer. When the testator states and provides in the Will and during his life time, he will remain the owner and after him the same position as owner would be occupied by his wife during her life time. It means that her rights will remain same as of a full fledged owner during her life time and after the death of the testator and his wife only, the legatee A. K. Lakshmana Gowda will get the rights of full ownership in the property. Therefore, in my opinion, firstly the Will did not confer limited estate rights to Smt. Yadhodamma, wife or widow of the testator. Therefore, in my opinion, firstly the Will did not confer limited estate rights to Smt. Yadhodamma, wife or widow of the testator. Apart from that if for the sake of arguments it be taken that she was given limited or life interest, then in that case what has to be looked into is, whether really under the Will she was given limited estate? It is a well recognised principle of law, not only under the statutory Hindu law, but also under the Shastric law and laws under Smrithis that a husband is bound to maintain his wife for her life and after the death of husband, right of maintenance becomes the first charge on the estate left by a Hindu man on his death. This principle of law and right of maintenance of a Hindu lady from and against the husband and estate left by the husband is a well recognised law and had been recognised even under the Hindu Adoption and Maintenance Act vide Section 18. So, when this right had been pre-existing since antiquity and had been recognised under the statutory law, the execution of the Will clearly provides that she will be entitled to hold the property even if for her life time, but it was in consideration and in lieu of her right of maintenance and she acquired that property even under the Will in lieu of maintenance, that is in lieu of her pre-existing right of maintenance, then in that case, Section 14 (2) will not apply, instead Section 14 (1) of the Act will apply in view of explanation to Section 14 of the Hindu Succession Act and so defendant/respondent acquired right as full owner. It will be appropriate to quote Section 14 of the Hindu Succession Act in extenso. It reads as under :-"section 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 this Act, shall be held by her as full owner thereof and not as a limited owner. It reads as under :-"section 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 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 device, 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. (2) Nothing contained in sub-section (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. " ( 10 ) IN the case of C. Masilamani Mudaliar v. The Idol of Sri Swaminatha-swami Swaminathaswami Thirukoil, AIR 1996 SC 1697 , a three Judges' Bench of the Supreme Court, after having considered the material and relevant case law and the provisions of Section 14 and Section 30, observed as under :-"25. It is true that Section 30 of the Act and the relevant provisions of the Act relating to the execution of the wills need to be given full effect and the right to disposition of a Hindu male derives full measure thereunder. But the right to equality removing handicaps and discrimination against a Hindu female by reason of operation of existing law should be in conformity with the right to equality enshrined in the Constitution and the personal law also needs to be in conformity with the Constitutional goal. Harmonious interpretation, therefore is required to be adopted in giving effect to the relevant provisions consistent with the constitutional animation to remove gender-based discrimination in matters of marriage, succession etc. Cognizant to these constitutional goals, Hindu Marriage Act, Hindu Adoption and Maintenance Act, Hindu Succession Act etc. Harmonious interpretation, therefore is required to be adopted in giving effect to the relevant provisions consistent with the constitutional animation to remove gender-based discrimination in matters of marriage, succession etc. Cognizant to these constitutional goals, Hindu Marriage Act, Hindu Adoption and Maintenance Act, Hindu Succession Act etc. , have been brought on statute removing the impediments which stood in the way under the Sastric law. Explanation I to Section 14 (1) gives wide amplitude to the acquisition of property in the widest terms. It is merely illustrative and not exhaustive. The only condition precedent is whether Hindu female has a pre-existing right under the personal law or any other law to hold the property or the right to property. Any instrument, document, device etc. under which Hindu female came to possess the property - movable or immovable - in recognition of her pre-existing right, though such instrument, document or device is worded with a restrictive estate, which received the colour of pre-existing restrictive estate possession by a Hindu female, the operation of sub-section (1) of Section 14 read with Explanation I, remove the fetters and the limited right blossoms into an absolute right. 26. As held by this Court, if the acquisition of the property attracts sub-section (1) of Section 14, sub-section (2) does not come into play. If the acquisition is for the first time, without any vestige of pre-existing right under the instrument, document or device etc. then sub-section (2) of Section 14 gets attracted. Sub-section (2) being in the nature of an exception, it does not engulf and wipe out the operation of sub-section (1 ). Sub-section (2) of Section 14 independently operates in its own sphere. The right to disposition of property by a Hindu under Section 30 is required to be understood in this perspective and if any attempt is made to put restriction upon the property possessed by a Hindu female under an instrument, document or device, though executed after the Act had come into force, it must be interpreted in the light of the facts and circumstances in each case and to construe whether Hindu female acquired or possessed the property in recognition of her pre-existing right or she gets the rights for the first time under the instrument without any vestige or pre-existing right. If the answer is in the positive, sub-section (1) of Section 14 gets attracted. If the answer is in the positive, sub-section (1) of Section 14 gets attracted. Thus construed, both sub-sections (1) and (2) of Section 14 will be given their full play without rendering either as otiose or aids as means of avoidance. "it has been further held in paragraph 28 as under :-"the legatee Sellathachi had right to maintenance under the Hindu Adoption and Maintenance Act when the property was given to her for maintenance. It must be in lieu of her pre-existing right to maintenance and the property given under the Will, therefore, must be construed to have been acquired by the legagee under the Will in lieu of her right to maintenance. That right to maintenance to a Hindu female received statutory recognition under the Hindu Adoption and Maintenance Act, 1956. She is entitled to realise maintenance from property of her husband and even in the hands of strangers except the bona fide purchasers for value whether notice of her right she is equally entitled under Section 37 of the Transfer of Property Act to have charge created over the property for realisation of her maintenance. On the demise of the testator, she being the Class-I heir but for the bequeath, is entitled to succeed as an absolute owner. In either of those circumstances, the question emerges whether she acquires a limited right under Section 14 (2) for the first time under the Will. In the light of the facts and circumstances of the case and the legal setting, we are of the considered view that she having had under Sastric Law, as envisaged in the Will, the properties in recognition of her pre-existing right to maintenance, it is not a right acquired for the first time under the instrument Will, but it is a reflection of the pre-existing right under the Sastric Law, which was blossomed into an absolute ownership after 1956 under Section 14 (1) of the Act. Under these circumstances, it cannot be held that Sellathachi acquired the right to maintenance for the first time under the instrument Will. The Division Bench therefore, does not appear to have approached the problem in the correct perspective. Under these circumstances, it cannot be held that Sellathachi acquired the right to maintenance for the first time under the instrument Will. The Division Bench therefore, does not appear to have approached the problem in the correct perspective. In view of the settled legal position right from Tulasamma's case, AIR 1977 SC 1944 (supra), the right acquired under the Will is in recognition of the pre-existing right to maintenance known under the Sastric law and was transformed into an absolute right under Section 14 (1) wiped out the restrictive estate given under the Sastric law and Sellathachi as absolute owner of the property. " ( 11 ) IN the present case also, a perusal of the Will does not indicate that there was any restrictive covenant to the effect that she will only be given a reasonable portion of income without any right over the property and as such, Ex. P-1 i. e. , the Will in question per se reveals that the testator under the Will gave his widow, after his lifetime, the same right of ownership as he used to enjoy and he had to enjoy during his lifetime. I further find support for my above observations from the decision of Their Lordships of the Supreme Court in the case of Raghubir Singh v. Gulab Singh, AIR 1998 SC 2401 , wherein Their Lordships of the Supreme Court observed that right of maintenance of a Hindu female is pre-existing right which existed under the Hindu Law long before the Act of 1937 (Hindu Women's Right to Property Act, 1937) and Act of 1946 (Hindu Married Women's Right to Separate Maintenance and Residence Act, 1947 ). Their Lordships followed their earlier decision given in the Tulsamma's case in AIR 1997 SC 1944. In view of these decisions of Their Lordships of the Supreme Court as well as considering the Will as mentioned earlier, in my opinion, under the Will itself as well as in view of provisions of Section 14 (1) under the Will, Smt. Yashodamma, wife of the testator, got the rights of full owner and was given rights of full owner and not the rights with any restriction or rider and even if there was any rider, though I do not find any, that said right appears to be in lieu of maintenance, so the case is covered/governed by Section 14 (1) of the Act. ( 12 ) THUS considered, Smt. Yashodamma, respondent No. 2, being the full owner of the property and right of ownership having been conferred thereunder to her, it cannot be said that she could not execute the sale-deed dt. 30-3-1993. The said sale-deed dt. 30-3-1993 in my view is perfectly legal and valid and as plaintiff/appellant's suit has rightly been dismissed. The trial Court's decree does not suffer from any error of law or fact. No other point has been pressed in course of argument nor has any other contention been raised. ( 13 ) THUS considered in my opinion, the appeal is devoid of merits and has got to be dismissed. The appeal, as such, is hereby dismissed. No order as to costs. --- *** --- .