Research › Search › Judgment

Jharkhand High Court · body

2007 DIGILAW 424 (JHR)

Sukur Mani Devi v. Bipin Bihari Singh

2007-05-14

M.Y.EQBAL

body2007
JUDGMENT M.Y. EQBAL, J. 1. Plaintiff is the appellant and the judgment is of affirmance. 2. The facts of the case lie in a narrow compass: One Narayan Singh was common ancestor who died leaving behind his two sons, Ajambar Singh and Bisambar Singh. Ajambar Singh died before 1937 leaving behind his widow Rusmi Devi who is defendant No. 1. Fulo Kuer is the daughter of Ajambar Singh and Bipin Bihari Singh and Basumati Devi defendant Nos. 2 and 3 are the son and daughter of Fulu Kuer. In other words, defendant No. 2 and 3 are the grand daughters of late Ajambar Singh. The second son of Narayan Singh, namely, Bisambar Singh died leaving behind Digambar Singh who is the plaintiff. 3. The admitted facts are that after the death of Ajambar Singh, defendant No. 1 Rusmi Devi filed Title Suit No. 20/1941 claiming the property left by her husband by way of maintenance. The suit was decreed on compromise in terms of judgment dated 25.3.1942. By virtue of that compromise decree, defendant No. 1 continued in possession of the suit property till 1981 when she transferred the suit property to her grand children by way of gift. 4. Plaintiff-Digambar Singh then filed Title Suit No. 7/1982 for declaration of his title without seeking any consequential relief. The suit was taken up ex parte and eventually the same was dismissed. Aggrieved by the said ex parte judgment and decree plaintiff filed Title Appeal No. 27 of 1988. The court of appeal below in terms of the impugned judgment and decree dismissed the appeal and affirmed the ex parte judgment and decree passed by the trial court. 5. At the time of hearing of this appeal under Order 41 Rule 11 C.P.C. the following substantial question was framed: Whether in the facts and circumstances of this case, the transfer made by Rushan Devi, in the year 1991 is binding upon the appellant. 6. Mrs. M. Patra, learned Counsel appearing for the appellants assailed the impugned judgment as being illegal and contrary to law and facts on the record. Learned Counsel submitted that certain restricted rights were given to defendant No. 1 Rusmi Devi by virtue of compromise decree passed in Title Suit No. 20/1941. That restricted right cannot and shall not be hit by Section 14(1) of the Hindu Succession Act 1956. Learned Counsel submitted that certain restricted rights were given to defendant No. 1 Rusmi Devi by virtue of compromise decree passed in Title Suit No. 20/1941. That restricted right cannot and shall not be hit by Section 14(1) of the Hindu Succession Act 1956. According to the learned Counsel, Sub-section (2) of Section 14 of the Act will apply and therefore, in no case defendant No. 1 shall become absolute owner of the property by virtue of Section 14 of the Act. In this connection, learned Counsel relied upon the decision rendered in the case of Somthim Veerabhadra Rao and Anr. v. Duggirala Lakshmi Devi. Learned Counsel also relied upon the decision of the Supreme Court in the case of "Sadhu Singh v. Gurdwara Sahib Narike and Ors. 7. Mr. V. Shivnath, learned senior counsel appearing for the respondents submitted that Sub-section (2) of Section 14 of the Act shall not apply in the facts and circumstances of the present case. Learned Counsel submitted that Sub-section (2) of Section 14 of the Act will apply in respect of the property other than the property inherited by the widow as limited owner. Learned Counsel relied upon the decision of the Supreme Court in the case of Raghubar Singh v. Gulab Singh: [1998] 3 SCR 555 and in the case of "Beni Bai. v. Raghubir Prasad: [1999] 236 ITR 898 (SC) 8. I have examined the provisions of Section 14 of the Hindu Succession Act, 1956, which reads as under: 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 devise, or at a partition, or in lieu of 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. 9. Explanation to Section 14 very categorically clarifies that the word "property" used in Sub-section (1) of Section 14 includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of arrears of maintenance. 10. Admittedly, in the instant case she acquired right over the suit property for maintenance and by virtue of that right she continued possession of the property. Admittedly, the suit property is ancestral property and defendant No. 1 being widow of Ajambar Singh acquired property in accordance with the provisions of the Act. In the case of "Raghubar Singh. v. Gulab Singh" (Supra), the fact of the case was quite similar to the facts of the instant case. In that case the husband of the widow executed a will that his son shall be the owner of the testator's house only after the death of testator's wife. The widow had only limited interest in the said house in lieu of her maintenance. After the death of testator, his widow inherited possession of the house during her lifetime. Since the widow was conferred limited right in relation to pre-existing right the limited interest confers right to maintain and does not recognize pre-existing right. The said right is prescribed under Section 14(1) of the Act. For better appreciation, paragraph 7 and 8 of the said judgment is quoted herein below: After holding that the Civil Court had jurisdiction to try the suit and that the challenge made on the basis of Section 37 of the V.P. Abolition of Jagirs and Land Reforms Act, 1952 could not operate as a bar, the learned single Judge held that in the absence of any allotment in plaintiff's favour, they could not lay any claim to the land comprised in four Khasra Nos. namely 549, 538/3525, 486 and 551/3527. The second appeal was thus partly allowed and judgment and decree of the Courts below insofar as it related to Khasra Nos. namely 549, 538/3525, 486 and 551/3527. The second appeal was thus partly allowed and judgment and decree of the Courts below insofar as it related to Khasra Nos. 549, 538/3525, 486 and 551/3527 was set aside and the plaintiff-respondents suit relating to those Khasra numbers was dismissed. The decree passed by the first appellate Court regarding the remaining part of the suit land was maintained. This appeal by special leave is directed against the judgment and order of the learned single Judge in Second Appeal No. 402 of 1980 dated 20.1.1981. We have heard learned Counsel for the parties and examined the record. Before proceeding to consider the submissions made by learned Counsel for the parties at the bar, it would be appropriate to first notice the relevant terms of the Will. Now as I have grown old and cannot look after the household affairs property therefore my whole property movable and immovable pawai (Jagirdari) Britta, 55/45 Kothar (state owned) and 55/45 tenancy Khata No. 320 under 320 and under 320 area 8.03, 6.14, 16.92 rental Rs. 25 as six, Rs. five as nine and Rs. 56 as six total area 31.09 Area total rental Rs. 87 as 5 with house gold silver, gram, Bullock, Cow, Buffalow, labourer, trees mango Mahuwa, Bair, Bamur, Jamun, Kaitha. Imli etc. all property in my possession have given you all on condition that you remain obedient to me and do service and homage to me and to my wife and other members in my family till our death and after death perform Gaya Barahe and remain in possession of property movable and immovable from generation to generation in case of need mortgage and sell. But till myself along with my wife are alive we shall have full control over all our property movable and immovable. After demise of our lives you will have all power like ours in our property movable and immovable. I, therefore, execute this gift deed so that it may remain in tact and may be helpful in case of need. The witnesses have put their signature below and stamp of Rs. 5/- No. 4291 dated 23.7.46 is attached Miti Sawan Badi II Sambat 2003. 11. Similar view has been expressed by the Supreme Court in the case of "Beni Bai v. Raghubir Prasad" (Supra). 12. The witnesses have put their signature below and stamp of Rs. 5/- No. 4291 dated 23.7.46 is attached Miti Sawan Badi II Sambat 2003. 11. Similar view has been expressed by the Supreme Court in the case of "Beni Bai v. Raghubir Prasad" (Supra). 12. Be that as it may, admittedly, defendant No. 1 Rusmi Devi after death of her husband acquired some interest in the property by virtue of enactment of Hindu Women's Rights to Property Act 1937 and irrespective of the condition put in terms of decree her right continued and the same became absolute by virtue of enforcement of Section 14 of the Hindu Succession Act. In that view of the matter also the defendant No. l who acquired absolute interest in the property had right to transfer the same to her grand children by way of gift. 13. In my considered opinion, therefore, both the courts below have correctly appreciated the law and decided the issues involved in the suit. Hence, no substantial question of law is involved in this appeal, which is accordingly, dismissed. Appeal dismissed.