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2012 DIGILAW 974 (MP)

Pandhari v. Ramchandra

2012-10-04

ALOK ARADHE

body2012
JUDGMENT 1. This appeal has been filed by the defendant No. 1 which was admitted on the following substantial question of law:- “Whether the lower appellate Court erred in law in holding that the deceased Mohini from whow the appellant is claiming his right, did not acquire rights of full owner under section 14(1) of Hindu Succession Act even though she obtained a decree in her favour in respect of her pre-existing right?” 2. Facts giving rise to filing of the appeal, briefly stated, are that the plaintiff filed the suit on the ground that one Tulsi Bai was legally married wife of Pandurang and one Mohini bai was his concubine. The aforesaid Mohini Bai filed a suit for partition against Narayan son of Pandurang, namely, Civil Suit No. 18-A/1947. During the pendency of the aforesaid civil suit the parties entered into a compromise under which Mohini Bai was granted the right of maintenance in respect of the suit property. Accordingly, the compromise decree was passed. Thus, Late Mohini Bai had limited right in the suit property and had no authority to alienate the same. After the death of Mohini Bai, Narayan and thereafter the plaintiff is in culitivating possession of the suit property. However, the defendant got a forged Will prepared which was allegedly executed by Mohini Bai and started asserting his right over the suit property. Accordingly, the plaintiff filed the suit seeking the relief of declaration of title and permanent injunction. 3. The defendant No. 1 filed written statement in which, inter alia, it was pleaded that Mohini Bai was married wife of Pandurang. The factum of compromise in the earlier suit was denied. It was pleaded that suit land was allotted to Mohini Bai in lieu of her right to maintenence and after commencement of Hindu Succession Act, 1956 (for short the ‘Act’), by operation of law, Late Mohini Bai became absolute owner of the property. Thereafter, she executed a registered Will in favour of the defendant No.1. A counter-claim was also filed seeking relief of possession and damages. 4. The learned trial Court vide judgment and decree dated 4.2.1993, inter alia, held that Mohini Bai was not concubine of Pandurang. Thereafter, she executed a registered Will in favour of the defendant No.1. A counter-claim was also filed seeking relief of possession and damages. 4. The learned trial Court vide judgment and decree dated 4.2.1993, inter alia, held that Mohini Bai was not concubine of Pandurang. On the basis of judgment and decree which was passed on the basis of compromise (Exhibits-P-1 and P-2), the trial Court held that Mohini Bai was granted right of maintenance in respect of the suit propety and after commencement of the Act, by operation of law, she became the absolute owner of the property in question and accordingly, she was competent to execute the Will (Exhibit-D-1) in favour of the defendant. The trial Court dismissed the suit and decreed the counter-claim of the defendant and the plaintiff was directed to handover possession of the suit property. 5. Being aggrieved by the aforesaid judgment and decree of the trial Court the plaintiff preferred an appeal. The lower appellate Court held that the plaintiffs had acquired limited right of maintenance under the decree of the Court and, therefore, in view of section 14(2) of the Act, she did not become the absolute owner and consequently had no authority to execute the Will in favour of the defendant No.1. Accordingly, the decree passed by the trial Court was set aside and the plaintiff’s suit was decreed whereas the counter-claim filed by defendant No.1 was dismissed. 6. Learned counsel for the appellant submitted that the lower Appellate Court committed an error of law in setting aside the decree passed by the trial Court. It ought to have been appreciated that provisions of section 14(2) of the Act have no application to the facts of the case. In support of his submissions learned counsel for the appellant has placed reliance on the decision reported in Sellammal and others vs. Nellammal (dead) by L.Rs. , AIR 1977 SC 1265 , V. Tulasamma and others vs. Sesha Reddi, AIR 1977 SC 1944 and santhanam Kachapalaya Gurukkal vs. V. Subramanya Gurukkal, AIR 1977 SC 2024 . 7. I have considered the submissions made by learned counsel for the appellant and have perused the record. The sole question which arises for consideration in the appeal is whether the provisions of section 14(1) or 14(2) of the Act would apply to the facts of the case. 7. I have considered the submissions made by learned counsel for the appellant and have perused the record. The sole question which arises for consideration in the appeal is whether the provisions of section 14(1) or 14(2) of the Act would apply to the facts of the case. The object of section 14 of Act is to wipe out the disability from which the Hindu female suffer in regard to the ownership of the property in old Sastric Hindu law. In Badri Pershad vs. Smt. Kamso Devi, AIR 1970 SC 1963 while dealing with the ambit and scope of section 14(2) of the Act it has been held that section 14(2) is in the nature of an exception to section 14(1) of the Act and is calculated to achieve a social purpose by bringing about the change in the social and economic position of women in Hindu society. It is further held that it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in sub-section (1) of section 14 of the Act. It cannot be interpreted in the manner which would rob sub-section (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub-section (1) of section 14. It has further been held that if a Hindu female is given a right in the property in view of her pre-exising right, in such a case, sub-section (1) of section 14 of the Act would apply. [Also see: Balwant Kumar and another vs. Chanan Singh and others, AIR 2000 SC 1908 and Sharad Subramanyan vs. Soumi Mazumdar, AIR 2006 SC 1993 ]. 8. In the backdrop of well settled position, the facts of the case may be seen. From perusal of Exhibit-P-1 i.e. compromise decree passed in Civil Suit No. 18-A/1947 dated 4-11-1947 it is apparent that Mohini Bai was granted right of maintenance of the suit property in lieu of her pre-existing right under Hindu Womens Rights Act, 1937. The relevant extract of the decree reads as under:- “I.............The plff. and the defts. constituted members of the joint Hindu family and the plff. now wants her 1/3rd share from the estate of her husband under Hindu Womens Right Act. The defts. The relevant extract of the decree reads as under:- “I.............The plff. and the defts. constituted members of the joint Hindu family and the plff. now wants her 1/3rd share from the estate of her husband under Hindu Womens Right Act. The defts. contested the suit on various grounds and at the time of evidence, they filed compromise, I hold the compromise both fair and valid and in the interest of the minor deft. 1. The compromise is allowed. The suit is decreed in terms of the compromise. 2. It is therefore decreed and ordered that the plff. shall get 13.11 acres only from Kh. Nos.-85, 86 and 88 in suit which are total 17.11 and the rest of 4 acres towards the north of these fields shall be in possession of the defts. That the field No. 55/1 in suit shall be in possession of the defts. That the plff. shall continue to be in possession of the portion of the house in which she is staying. That the plffs. gets this property with limited interest and has no right to alienate and she shall enjoy the property till her life time. That the parties shall bear their own costs.” 9. This relevant extract of the compromise decree leaves no iota of doubt that Late Mohini Bai was granted limited right under the decree in lieu of her pre-existing right under Hindu Womens Right to Property Act, 1937. Therefore, in view of law laid down in the case of Badri Pershad (supra) the provisions of section 14(1) of the Act would apply. 10. Accordingly, the substantial question of law framed by this Court is answered in affirmative and in favour of the appellant. The judgment and decree passed by the lower Appellate Court is set aside and that of the trial Court is restored. 11. In the result, the appeal is allowed with costs.