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2006 DIGILAW 678 (MP)

DAYALAL v. BHAIYALAL

2006-05-10

S.SAMVATSAR

body2006
( 1 ) THIS appeal is filed by the plaintiffs challenging the judgment and decree dated 13-1-1998 passed by District judge, Datia, District Vidisha in Civil Appeal no. 14-A/95 whereby the first appellate Court has confirmed the judgment and decree dated 24-2-1977 passed by Civil judge Class II Kurwai in Civil Suit No. 84-A/74. ( 2 ) BRIEF facts of the case are that the plaintiffs have filed the present suit for declaration of title in respect of agricultural land bearing survey numbers 2025, 2026, 2027, 2028, 2031, 2032, 2033, 2034, 2036,2037, 2038,2039, 2041, 2042, 2043, 2044, 2049, 2062, 2063, 2064, 2065 and 2066 having an area 22. 606 hectare. According to the plaintiffs, the property was owned by Badri. Badrl had two sons Pyarelal and Pooran. Pyarelal died in Jan, 1937. He left behind three sons Nannu, Mannu, and Bhaiyyalal and widow Rambai, while Pooran died in september, 1949 and had a daughter saraswati Bai who married during the lifetime of Pooran. After the death of Pooran, his share devolved on the plaintiffs. As per the plaintiffs Rambai had no share in the property of Pyarelal and the property of pyarelal has also devolved on the heirs of pyarelal namely Nannu, Mannu and bhaiyalal. Rambai who had no share in the suit property sold 1/2 share by registered sale deed to Kanhaiyalal S/o Murlidhar, who is defendant No. 3. According to the plaintiffs Rambai had no right, title or interest to sell the property and possession of kanhaiyalal is illegal. Hence, they also prayed for relief of restoration of possession and for cancellation of the sale deed. Prayer for possession was also made during the pendency of the suit alleging that kanhaiyalal had forcibly took possession of the suit property during the pendency of the suit. ( 3 ) THE case was mainly contested by defendant Kanhaiyalal. He has stated in his written statement that the property was never a joint Hindu Family property and the property was solely owned by Pooran. After his death Rambai who is the widow of Pooran has become the owner of the property and rambai had right to sell the property which was recorded in the name of Pooran. Rambai became the sole owner of the property after the death of Pooran and therefore, she had right to sell the property. After his death Rambai who is the widow of Pooran has become the owner of the property and rambai had right to sell the property which was recorded in the name of Pooran. Rambai became the sole owner of the property after the death of Pooran and therefore, she had right to sell the property. It is also alleged that the suit filed by the plaintiff is barred by limitation. ( 4 ) THUS, according to the defendants, rambai was not the wife of Pyarelal as alleged by the plaintiffs but she was the wife of Pooran. ( 5 ) THE trial Court dismissed the suit holding that Rambai was the widow of pooran and not of Pyarelal and therefore she has a right to sell the land. First appeal was also dismissed. Hence, this second appeal. ( 6 ) THIS appeal was admitted by this Court on the following substantial question of law: "whether the Hindu Women's Rights to property Act, 1937 was applicable in the erstwhile State of Kurwal and the defendants were entitled to benefit under the aforesaid act?" ( 7 ) QUESTION of law is whether the aforesaid 1937 Act was applicable in the erstwhile State of Kurwai. ( 8 ) AS per the defendants as Rambai was the widow of Pooran and as Pooran died in 1949. Rambai became the owner of the property as per the provisions of Hindu Women's rights to Property Act, 1937 (hereinafter, referred to as "1937 Act" ). The two Courts below have concurrently found that Pooran was the sole owner of the property and rambai was the widow of Pooran and not the widow of Pyarelal as alleged by the plaintiffs. This is a question of fact which cannot be gone into in this second appeal. ( 9 ) NOW the question is what was the right of Rambai in the land in question which was received by Pooran. ( 10 ) AS per the findings of the two Courts below, Pooran died in 1947 and Rambai who was his widow continued to be in possession and became the owner as per 1937 Act. Contention of the learned counsel for the appellants is that Kurwai was situated in the erstwhile State of Bhopal and as per merger of States Act, 1949, 1937 Act was adopted in the erstwhile Madhya Bharat in the year 1951. Contention of the learned counsel for the appellants is that Kurwai was situated in the erstwhile State of Bhopal and as per merger of States Act, 1949, 1937 Act was adopted in the erstwhile Madhya Bharat in the year 1951. Therefore, in the year 1947-48 i. e. on the date of death of Pooran, 1937 act was not in force at Kurwai and therefore, rambai had no right, title or interest in the suit property and sale deed executed by her in favour of Kanhaiyalal does not copvey any title and the property devolved on the plaintiff after the death of Pooran. ( 11 ) IN reply to this argument, Shri R. D. Jain, learned senior advocate for the defendants contendd that the 1937 Act was applicable in Kurwat. He invited attention of this Court to Article 35 of the Principles of hindu Law by Mulla. Article 35 provides that the 1937 Act extends to the whole of India except Part B States, there Is nothing on record to show that whether Kurwai which was a part of erstwhile Bhopal State was within Part 8 States or not. ( 12 ) CONTENTION of Shri R. D. Jain, learned senior Advocate for the defendants is that even in the absence of application of 1937 act to Kurwai, the principles of the said Act are applicable to places where this Act was not adopted. For this purpose, he relied upon a judgment of the Apex Court in the case of raghubar Singh v. Gulab Singh, AIR 1998 sc 2401 , The Apex Court in the aforesaid judgment has held that the right to maintenance of a Hindu female flows from the social and temporal relationship between the husband and the wife and that right in the case of a widow is "pre-existing right", which existed under the Shastric Hindu Law long before the passing of the 1937 or the 1946 acts. Those laws merely recognises the position as was existing under the Shastric hindu Law and gave it a "statutory" backing. Where a Hindu widow is in possession of the property of her husband, she has a right to be maintained out of it and she is entitled to retain the possession of that property in lieu of her right to maintenance and becomes the absolute owner by virtue of section 14 of Hindu Succession Act. Where a Hindu widow is in possession of the property of her husband, she has a right to be maintained out of it and she is entitled to retain the possession of that property in lieu of her right to maintenance and becomes the absolute owner by virtue of section 14 of Hindu Succession Act. ( 13 ) IN view of this, counsel for the respondents submitted that even if 1937 Act was not applicable to Kurwai, still the principles will be applicable in the present case as rights given to Hindu widow under 1937 act are pre-existing rights which are recognised by Shastric Hindu Law. 1937 Act merely recognises these existence of rights under Shastric Hindu Law by giving statutory effect. Thus, the right of Hindu widow is pre-existing right and therefore, even in the absence of application of 1937 Act at kurwai, the right of Rambai remained the same. ( 14 ) SHRI K. N. Gupta, the learned Senior advocate for the appellants further urged that even if the said law is made applicable, rambai did not have any right to deal with the property left behind by her husband, he submitted that under Section 14 of the hindu Succession Act, any property possessed by a hindu female 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. He invited attention of this Court to the word "acquired" used in S. 14. Laying emphasis on the word "acquired" Shri Gupta, learned counsel for the appellants submitted that inheritance cannot be said to be acquisition of the property. He, therefore, submitted that as the widow has not acquired right in the property, she did not become the absolute owner of the property under Section 14 of the hindu Succession Act. ( 15 ) IN reply to this argument, counsel for the respondents invited attention of this court to the judgment of the Apex Court in the case of Badri Prasad v. Kanso Devi, AIR 1970 SC 1963 where the Supreme Court interpreted the word "acquired" appearing in S. 14 of the Hindu Succession Act. The apex Court has laid down that the word "acquired" used in sub-section (1) of S. 14 of the Hindu Succession Act has also to be given the widest possible meaning. The apex Court has laid down that the word "acquired" used in sub-section (1) of S. 14 of the Hindu Succession Act has also to be given the widest possible meaning. This would be so because of the language of the explanation which makes sub-section (1)applicable to acquisition of property in manners mentioned therein. Sub-section (2) is more in the nature of a proviso or an exception to sub-section (1 ). It comes into operation only if acquisition in any of the methods indicated therein, is made for the first time without there being any pre-existing right in the female Hindu who is in possession of property. ( 16 ) THUS, as per the judgment of the apex Court, the word "acquired" has to be given the widest possible meaning. ( 17 ) SIMILAR view is taken by the Apex court in the case of Munnalal v. Rajkumar, air 1962 SC 1493 . ( 18 ) THUS, the word "acquired" is used in the widest possible meaning which will also include the right acquired by succession. Thus, property of Pooran which came in possession of Rambai after his death and rambai being the widow of Pooran had acquired right in the suit property by way of succession. Even in the absence of any evidence that 1937 Act was applicable to kurwai or not, as per Shastric Hindu Law, rambai had right in the suit property for maintenance or as heir of Pooran and therefore, she had become the absolute owner after coming into force of Hindu Succession act. Therefore, she had right to alienate the property. ( 19 ) THUS, the two Courts below have not committed any error in dismissing the suit of the plaintiffs. Hence, this appeal fails and is dismissed with costs. Appeal dismissed. .