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2007 DIGILAW 546 (CAL)

SRISTIDHAR MONDAL v. LAKSHMANJOY MONDAL

2007-07-23

SAILENDRA PRASAD TALUKDAR

body2007
( 1 ) THE instant appeal is directed against the judgment dated 17th december, 1999 and the decree dated 3. 1. 2000 passed in Title Appeal No. 32 of the 1998 by learned Civil Judge, Senior Division, Suri, Birbhum. The said appeal arose out of the suit being Title Suit No. 48 of 1995 which was dismissed by the learned Munsif, 1 st Court, Rampurhat, Birbhum by passing judgment dated 17. 2. 98 and decree dated 24. 2. 98. ( 2 ) AT the very outset, it may toe worth mentioning that the only point raised for adjudication in the present appeal is whether the facts and circumstances of the present case attract Section 14 (1) or Section 14 (2) of the Hindu Succession Act, 1956. ( 3 ) IN the best interest of proper appreciation of the controversies raised in the dispute between the parties, it is, perhaps, necessary to refer to the factual backdrop of the present case. ( 4 ) THE father of the plaintiff, Bankulal Mandal, since deceased, was owner of the suit property. He died in July, 1955 leaving the plaintiff behind as his only legal heir. The brother of the plaintiff pre-deceased his father leaving his wife Dukhubala Devi behind. The said Dukhubala naturally did not inherit any property-particularly that of her father-in-law, Bankulal mandal. The plaintiff as owner of the property however, executed a deed in favour of the wife of his deceased brother on 26. 9. 55 for her maintenance. Thus, by virtue of a registered deed the plaintiff gave his property to his sister-in-law, Dukhubala, with the rider that it was for her life interest and without any right to alienate the property in favour of others. It was also mentioned therein that with the death of Dukhubala, such property would revert back to the executor i. e. the plaintiff. ( 5 ) PLAINTIFF filed the suit for declaration as well as the other reliefs and alleged in it that the defendants caiming to be bona fide purchasers of such property for valuable consideration from the said Dukhubala by dint of a registered deed of sale dated 9. 61. 92 were trying to grab the property. ( 5 ) PLAINTIFF filed the suit for declaration as well as the other reliefs and alleged in it that the defendants caiming to be bona fide purchasers of such property for valuable consideration from the said Dukhubala by dint of a registered deed of sale dated 9. 61. 92 were trying to grab the property. Since Dukhubala could not have had any right to transfer or alienate the property, any deed allegedly executed in favour of defendants would be a mere sham transaction and could create no right, title or interest in favour of the defendants. The plaintiff also challenged the relevant entry in the R. S. record of right and claimed that the said entry should have indicated that dukhubala did only have life interest i. e. , "jiban Satta". ( 6 ) THE said suit was contested by the defendants by filing a joint written statement wherein the material allegations made by the plaintiff were categorically denied. It was claimed that the plaintiff having gifted the property in favour of Dukhubala, with the Hindu Succession Act coming into force, she became the absolute owner of the property and there could be no restriction to the manner of its dispossession. Defendants also claimed barga right in respect of the suit land. It was, further, pleaded that the defendants acquired right, title and imterest by way of adverse possession. ( 7 ) THE learned trial Court framed as many as eight issues upon the pleadings and after considering the relevant facts and circumstances by the judgment dated 17. 2. 98 dismissed the suit. ( 8 ) IT was challenged by preferring an appeal and the learned appellate Court by its judgment dated 17. 02. 99 allowed the said appeal thereby setting aside the judgment passed by the learned trial Court but chose to send the case back on remand with liberty to the plaintiff to amend the plaint and direction upon the learned trial Court to decide the suit afresh. ( 9 ) AS mentioned earlier, the only point raised at the time of hearing of the instant appeal is whether in view of the Hindu Succession Act, 1956 coming into force, the plaintiff could claim the property. A brief reference to the circumstances leading to coming into operation of the said Act may be relevant in this context. ( 9 ) AS mentioned earlier, the only point raised at the time of hearing of the instant appeal is whether in view of the Hindu Succession Act, 1956 coming into force, the plaintiff could claim the property. A brief reference to the circumstances leading to coming into operation of the said Act may be relevant in this context. ( 10 ) THE said Act came into operation with effect from 17th of June, 1956. It is an Act to amend and codify the law relating to intestate succession among Hindus. ( 11 ) BORROWING the words from the book "the Hindu Succession Act, 1956" by D. N. Sen, it may be said that "the objects achieved by the new legislation are substantial unification of Hindu Law by blending such as was progressive in the various schools of law which prevailed in different parts of the country and rsmoval of numerous anomalies and incongruities. . . . . . . . . The underscoring of the rights of the woman to be in equal Jura finds concrete shape in the new legislation thereby doing away with the ordain of Menu as to the perpetual dependence of the female sex. " ( 12 ) SECTION 14 of the Act abolishes a Hindu woman's limited estate and confers absolute title to the property in possession of a Hindu female on the date of coming into force of the Act, subject to certain restrictions contained in sub-section (2) of the said section. The materials on record which, of course, include the document of title in favour of the father of the plaintiff, the deed by which the plaintiff gave life interest in respect of the suit property to his sister-in-law (wife of the deceased brother), Dukhubala, certainly go a long way to indicate that it was not necessarily a legal obligation on the part of the plaintiff to take care or maintain the wife of his deceased brother Dukhubala. Section 14 of the Hindu Succession Act, 1956 may now be reproduced as follows :- "14. Property of a female Hindu to be her absolute property.- (1)Any property possessed by a femsle 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. Section 14 of the Hindu Succession Act, 1956 may now be reproduced as follows :- "14. Property of a female Hindu to be her absolute property.- (1)Any property possessed by a femsle 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 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'" ( 13 ) SUB-SECTION (2) of Section 14 certainly guides the nature of the transaction. It cannot be denied that the document executed by the plaintiff in favour of the wife of his deceased brother was confined to transfer of life interest and nothing more. By no stretch of imagination, it could be said to be an absolute transfer of right, title and interest in favour of the said dukhubala. Mr. Dey as learned Counsel for the appellant referred to the decision in the case of Mst. Karmi v. Amru and Ors. reported in AIR 1971 SC 745 in support of his contention that where only life interest is conferred, she cannot claim to have become absolute owner under the Act. It was, of course, a case with a different factual background where a widow succeeded to properties of her deceased husband on the strength of Will executed by the husband in her favour. It was, of course, a case with a different factual background where a widow succeeded to properties of her deceased husband on the strength of Will executed by the husband in her favour. ( 14 ) REFERENCE was made to the decision in the case of K. Thoman v. Meenakshi reported in AIR 1970 Kerala 284 while contending that the section 14 is to be read as a whole and it would depend on the facts of each case whether the same is covered by the first sub-section or subsection (2 ). The Apex Court in the case of Seth Badri Pershad v. Smt. Kanso Devi (Civil Appeal No. 1937 of 1966) dated 26. 8. 1969 (SC) explained the situation in the following manner :- "the critical words in sub-section (1) are 'possessed' and 'acquired'. The word 'possessed' has been used in its widest connotation and it may either be actual or constructive or in any form recognised by law. In the context in which it has been used in Section 14 it means the state of owning or having in one's hand or power. . . . . . . . . . . . . . . The word 'acquired" in sub-section (1) 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 by inheritance or devise or arrears of maintenance or by gift or by a female's own skill or exertion or by purchase or prescription or in any manner whatsoever. . . . . . . . . ". ( 15 ) APPLYING the principle to the facts and circumstances of the present case, the Court finds it difficult to brush aside the argument advanced on behalf of the plaintiff/respondent. It cannot be denied that the owner of the property namely Bankulal Mandal died and since the brother of the plaintiff pre-deceased him, the plaintiff stepped into his shoes. Having regard to the law in force at that time, question of any inheritance by the wife of the deceased brother of the plaintiff could not arise. The plaintiff however, executed the deed/document in favour of his sister-in-law (brother's wife)but it was only relating to life interest in respect of property. Having regard to the law in force at that time, question of any inheritance by the wife of the deceased brother of the plaintiff could not arise. The plaintiff however, executed the deed/document in favour of his sister-in-law (brother's wife)but it was only relating to life interest in respect of property. Such restricted transfer clearly indicated that the property would revert back to the plaintiff with the death of the said Dukhubala Dasi. Thus, it cannot be said that any document executed by the said Dukhubala Dasi in favour of the defendants could have any force in the eyes of law. ( 16 ) IT is not disputed that 'sub-section (2) of Section 14 is an exception to sub-section (1) thereof and if the situation in the present case is covered by sub-section (2), the transformation provided for in sub-section (1) cannot take place. ' ( 17 ) IT may be mentioned once again that no other point was raised by either of the parties. ( 18 ) CONSIDERING all such facts and circumstances and having regard to the aforesaid discussion, this Court finds it difficult to accept the grievances ventilated on behalf of the appellant. Since no other point was raised at the time of hearing of the instant appeal, this Court is not inclined to deal with the other findings made in the impugned judgment. The present appeal being F. M. A. No. 1792 of 2000 be accordingly dismissed on contest. ( 19 ) IN the facts and circumstances, parties are, however, directed to bear their own respective costs. .