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2004 DIGILAW 344 (MP)

Paribai v. Bhagwanlal

2004-04-06

SUBHASH SAMVATSAR

body2004
Judgment ( 1. ) THIS appeal is filed by the plaintiff challenging judgment and decree dated 10-8-87 passed by Addl. District Judge. Indore in civil regular appeal No. 26-A/87 whereby the First Appellate Court has confirmed the judgment and decree dated 8-4-85 passed by 5th Civil Judge Class II, Indore in Civil Original Suit No. 267-A/75. ( 2. ) BRIEF facts of the case are that the appellant plaintiff had filed the present suit for declaration, partition, possession and mesne profit alleging that she is a widow of Kanhaiyalal. Kanhaiyalal had three brothers namely Dattu, Mukund and Balwant. Defendant No. 1 Sukhram is the son of Dattu, defendant Nos. 2 and 3 Ranchor and Moolchand are sons of Mukund and defendant Nos. 4 and 5 are sons of Baiwant. According to the plaintiff the four brothers owned an agricultural land having an area of 74. 58 acres. The husband of the plaintiff Kanhaiyalal died somewhere in the year 1930-31. At that time Indore Land Revenue and Tenancy Act, 1931 was in force. Section 54 of the said Act provides that on the death of a Pattedar the agricultural land will devolve in accordance with the principles of personal law. Parties are governed by the Hindu law and at that time the widow have only a right of maintenance against the share of her husband. Hindu Womens Right to Property Act has come into force during Holkar Estate in the year 1940. Plaintiff alleges that though there was no partition in the family she was in possession of a land bearing Khasra No. 250 having an area of 17. 03 acres. According to the plaintiff she continued to be in possession of the said property till 1965. ( 3. ) IN the year 1965 due to her old age she shifted to the house of her daughter and started residing with her. Taking advantage of this fact the other respondent took possession of her property and also got their name mutated by deleting the name of the present plaintiff in the year 1969. Hence she filed the present suit. ( 4. ) DEFENDANT Nos. 1, 2, 4 and 5 have filed their written statements separately from defendant No. 3. Defendant No. 3 has admitted the claim of the plaintiff. Case of the defendant Nos. 1, 2, 4 and 5 is that at the time of death of Kanhaiyalal. Hence she filed the present suit. ( 4. ) DEFENDANT Nos. 1, 2, 4 and 5 have filed their written statements separately from defendant No. 3. Defendant No. 3 has admitted the claim of the plaintiff. Case of the defendant Nos. 1, 2, 4 and 5 is that at the time of death of Kanhaiyalal. The present plaintiff has only a right of maintenance. She had no right, title or interest in the suit property. They have also stated that the plaintiff has sold 15 bighas of land to Gaurishankar and Shivram. This fact is admitted by the plaintiff. Thus, according to the defendants the plaintiff has no right, title or interest in the suit property as at the time of the death of her husband she has only a right of maintenance and the property developed on three brothers after the death of Kanhaiyalal. ( 5. ) BOTH the Courts below dismissed the suit hence this appeal. ( 6. ) THIS appeal is admitted on 27-11-87 on following substantial questions of law : "whether the Courts below having concurrently found as a fact that the original plaintiff Paribai being possessed of the part of the holding as her maintenance as her deceased husbands one-fourth share of the suit lands alongwith respondents, the Courts below erred in law in not holding that she was entitled to seek partition and separate possession and recover mesne profit of her husbands full one-fourth share from respondents on the impact of Section 14 of the said Act?" ( 7. ) SHRI M. G. Upadhayaya, learned Counsel for the appellant submitted that both the Courts below have erred in holding that plaintiff have no right in the suit property as at that time Hindu Womens Right to Property Act has not come into force and under the provisions of Indore Land Revenue and Tenancy Act, 1931, the widow has a right of maintenance only and the ownership has devolved on the defendants as per Section 54 of the Land Revenue Code. ( 8. ) SECTION 14 of the Hindu Succession Act provides 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. ( 8. ) SECTION 14 of the Hindu Succession Act provides 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 to said section provides that 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. As per the defendants case the plaintiff was holding the said land in lieu of maintenance thus she became the absolute owner after coming into force of Hindu Succession Act. ( 9. ) THUS, both the Courts below have erred in holding that since in 1931 plaintiff had no right in the suit property and had only a right of maintenance as she docs not acquire the rights of an absolute owner under Section 14 of the Act. In the present case the revenue records shows that the name of the plaintiff is recorded as joint owner till 1969 vide Ex. P-15 and P-16 which are Khasra entries to that effect. Name of the present plaintiff was deleted for the first time by Ex. P-14. A perusal of Ex. P-14 shows that the name of the plaintiff is deleted only in respect of the land which she has sold to Ramprasad and Bhagirath. From the pleadings of the parties it appears that the respondents have nowhere disputed the possession of the plaintiff and that is why there is no clear finding of possession by both the Courts below. However, from revenue record it is established that plaintiff was in possession of the suit property. Case of the defendants is that though she was in possession of the property she was in possession only in lieu of maintenance. ( 10. ) AFTER perusing Section 14 of the Hindu Succession Act it is clear that if a widow is in possession of the property in lieu of maintenance on the date of coming into force of Hindu Succession Act, she acquired the right of a full owner. In such circumstances both the Courts below have erred in dismissing the suit filed by the plaintiff. ( 11. ) IN the result this appeal succeeds and is allowed. Judgment and decree passed by two Courts below is set aside and the plaintiffs suit is decreed. In such circumstances both the Courts below have erred in dismissing the suit filed by the plaintiff. ( 11. ) IN the result this appeal succeeds and is allowed. Judgment and decree passed by two Courts below is set aside and the plaintiffs suit is decreed. The plaintiff is held entitled to the possession of the land having an area of 17. 03 acres as previously held by her after adjusting the land sold by her. She is also entitled to the mesne profits of the remaining land of her share from the date of the filing of the suit. Trial court is directed to determine the mesne profits, after affording both the parties opportunity of hearing. Parties are directed bear their own costs.