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2013 DIGILAW 546 (KER)

Panakkal Rajendran v. M. Sreenivasan

2013-07-02

N.K.BALAKRISHNAN

body2013
JUDGMENT N.K. Balakrishnan, J. 1. The following substantial questions of law arise for consideration in this Second Appeal filed by the defendants in a suit for partition:- i) Did the courts below go wrong in interpreting the words "any property possessed by a female Hindu" occurring in Sec.14 (1) of the Hindu Succession Act, 1956 ? ii) Were the plaint schedule properties or any one of those items or any part of any of the items possessed by Radha the daughter of Kelu in lieu of maintenance ? iii) Was any custom contrary to the Hindu Mitakshara Law proved by the appellants ? 2. Admittedly the properties in respect of which a preliminary decree was passed by the trial Court and which was confirmed by the appellate Court belonged to deceased Kelu. Kelu died in the year 1945. He left behind his widow Chiruthakutty and his two children, Radha and respondent (Sreenivsan) who were then minors. In the plaint the entire property covered by Ext.A1 were not included. But in the written statement filed by the defendant a schedule showing all properties covered by Ext.A1 was incorporated. Plaintiff contended that the remaining property shown in Ext. A1 was excluded from claiming partition since that property was an agricultural land and as such it was entitled to be exempted. But the courts below found that there is absolutely no evidence to show that the excluded portion was an agricultural land. The courts below have given cogent and convincing reason to hold that the property which was sought to be excluded from partition was not an agricultural land. No evidence whatsoever was adduced by the plaintiff to show that it was an agricultural land so as to get exclusion from partition. That finding is not very much in dispute now. 3. The fact that the entire properties in respect of which preliminary decree was passed are available for partition is not in dispute now. The main thrust of the argument advanced by Sri. R. Sudheesh, the learned counsel appearing for the appellants is that the courts below went wrong in interpreting Sec.14 (1) of the Hindu Succession Act. Admittedly, the plaintiff and defendants are Thiyyas of North Malabar following Hindu Mitakshara Law of Inheritance. Kelu died in the year 1945 after the commencement of the Hindu Women's Right to Property Act, 1937. 4. R. Sudheesh, the learned counsel appearing for the appellants is that the courts below went wrong in interpreting Sec.14 (1) of the Hindu Succession Act. Admittedly, the plaintiff and defendants are Thiyyas of North Malabar following Hindu Mitakshara Law of Inheritance. Kelu died in the year 1945 after the commencement of the Hindu Women's Right to Property Act, 1937. 4. Section 14 of the Hindu Succession Act uses the expression "female Hindu" and no distinction has been drawn between a "widow" and a "daughter". The Hon'ble Supreme Court in the decision in Vidhya v. Nandaram - (2001) 10 SCC 747 , while considering the expression "female Hindu" held as follows: "The submission that the third wife would have no right to claim maintenance hence S. 14 (1) will not apply, has no merit. The language of Sec. 14 (1) in this respect is very clear. Sub-S. (1) of Se. 14 refers to 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 and not as a limited owner. Smt. Durga is a female Hindu, who acquired her right in lieu of maintenance, under the Will dated 30-09-1932 executed by her husband Khimi Ram. The Explanation clarifies that property referred to in sub-s. (1) of S. 14 includes a property held by her in lieu of maintenance. If that be so, right of such female Hindu would be covered by sub-s. (1) making her the absolute owner. The submission for the appellant is against the very language of this sub-section. To read differently what is referred to is contrary to all canons of interpretation. To read "female Hindu" as only "wife" is totally misconceived. Both sub-s.(1) and the Explanation refer significantly to the words "female Hindu" and not "wife". It would not only be too limited an interpretation but an interpretation against the plain language of this sub-s.(1). The interpretation is totally misconceived". 5. The aforesaid decision was followed by a Division Bench of this Court in Jose v. Ramakrishnan Nair - 2003 (3) KLT 999 . The learned counsel for the appellants would submit that gender equality is one of the basic principles of our Constitution and so the Court should bear in mind the socio- economic perspective while interpreting the provisions. 5. The aforesaid decision was followed by a Division Bench of this Court in Jose v. Ramakrishnan Nair - 2003 (3) KLT 999 . The learned counsel for the appellants would submit that gender equality is one of the basic principles of our Constitution and so the Court should bear in mind the socio- economic perspective while interpreting the provisions. The learned counsel further submits that the widest possible connotation should be given to the words used in Section 14 of the Hindu Succession Act, as otherwise the very object of the legislature would stand stultified and frustrated. The words "any property possessed by a female Hindu" have to be given a wider interpretation in consonance with the wishes and desires of the framers of the Constitution, the learned counsel further submits. 6. In the light of the decisions referred to earlier, there can be no doubt that the expression female Hindu occurring in Sec.14 (1) of the Act includes "daughter" also. If that be so, the limited interest of the daughter would get enlarged to full right under Sec.14 (1) of the Hindu Succession Act, provided there is evidence to show that the property in question was possessed by the daughter in lieu of maintenance. It is pointed out by the learned counsel for the respondent that on the death of a Hindu male governed by Mitakshara Law, the self acquired property would devolve firstly upon the son, grandson and great grandson only and it would never devolve upon the daughter. But after the commencement of Hindu Women's Right to Property Act, 1937, along with the category mentioned above, widow, pre-deceased son's widow, deceased son's predeceased widow would also inherit in like manner as son. As such the learned counsel for the respondent would submit that under the Mitakshara Law of Inheritance, the question of daughter inheriting the self acquired property left by a Hindu male, when son and widow were alive did not arise at all. As such the learned counsel for the respondent would submit that under the Mitakshara Law of Inheritance, the question of daughter inheriting the self acquired property left by a Hindu male, when son and widow were alive did not arise at all. But it is argued by the learned counsel for the appellants that since the words "female Hindu" occurring in Sec.14 (1) of Hindu Succession Act would take in "daughter" also and hence even though under the provisions of Hindu Women's Right to Property Act, the right of maintenance of the daughter has not been specified still by virtue of the provisions contained in Sec.14 (1) of the Hindu Succession Act, the limited estate, which confers right to maintenance would get itself enlarged into full and absolute estate and as such it makes no difference whether the claim is made by a widow or daughter. The learned counsel for the respondent would submit that it is only a pre-existing right coupled with possession which can attract Sec.14 (1) of the Hindu Succession Act and it is such right coupled with possession which can blossom into full right. The right of a Hindu female is only to get maintenance from her father or from the income of the property left behind by the father. That does not mean that she has a right to possession of the property nor can she be treated as a co- parcener entitled to claim possession along with other members. As already stated, the parties were governed by Hindu Mitakshara Law. 7. Though a vague plea was raised by the appellants to the effect that there was a custom prevalent in the community as per which the daughter was also entitled to equal share in the property, the courts below found that the plea so raised by the appellants is too vague to found a justifiable claim. No evidence whatsoever was adduced to substantiate the said plea. The contention seriously advanced by the appellants is that there was no specific denial of the plea set up by them. The custom pleaded by the respondent and accepted by the courts below does not gain ground in view of the fact that no specific custom was pleaded. The court should be convinced of the existence of a custom. The contention seriously advanced by the appellants is that there was no specific denial of the plea set up by them. The custom pleaded by the respondent and accepted by the courts below does not gain ground in view of the fact that no specific custom was pleaded. The court should be convinced of the existence of a custom. The enquiry pertaining to such a custom pleaded by the party should satisfy the test of antiquity, continuity, consistency and invariability so as to hold that the settled system of pure Mitakshara Law was no longer applicable to the parties. Therefore, even if it is accepted that there was no specific denial of the custom pleaded by the appellants, they cannot succeed in view of the fact that the plea regarding custom is too vague and also because no evidence whatsoever was adduced to prove that there was any such custom prevalent in that community. The conditions required for proof of custom are conspicuously absent. The courts below were thus perfectly justified in negativing the contention so raised by the appellants. 8. As has been stated earlier the crucial question is whether the plaint schedule properties were possessed by Radha, the mother of the appellants in lieu of maintenance. Sec.14 of the Hindu Succession Act reads as follows:- "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 maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after 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. The argument vehemently advanced by Sri.Sudheesh, the learned counsel or the appellants is that the specific contention raised by them is that Radha, their mother was entitled to the right of maintenance and so the property left behind by Kelu must be held to have been in the constructive possession of Radha for the purpose of getting maintenance during her minority and till she was married in 1958 or 1959 and as such it has to be found that the plaint schedule properties were liable to be charged for the amount of maintenance which Radha was entitled to get. But it is pertinent to note that there was no document whatsoever to show that the plaint items or any of the plaint items were set apart for taking income for the purpose of giving maintenance to daughter Radha. No document was executed either by Kelu or by any other person with a stipulation that the suit property was set apart for that purpose. 10. The learned counsel Sri.Sudheesh would argue vehemently that if the words "property possessed by female Hindu" is given a wider connotation and is understood and interpreted bearing in mind the object and intendment of the legislature and also bearing in mind the fact that it was to obviate the gender inequality such a provision was incorporated, then certainly, it can be found that even if there was no document to show that the property in question was set apart for taking income so as to give maintenance to the daughter still it is possible to hold that there was constructive possession and, if that be so, the limited estate should certainly blossom into a full and absolute estate. This submission is strongly resisted by Sri.Sreenivasan, the learned counsel for the respondent pointing out that there is absolutely no evidence to show that this property was possessed by Radha or that she was in constructive possession of the same. This submission is strongly resisted by Sri.Sreenivasan, the learned counsel for the respondent pointing out that there is absolutely no evidence to show that this property was possessed by Radha or that she was in constructive possession of the same. It is submitted by Sri.Sreenivasan that in order to contend that Radha was in constructive possession of the property, it must be shown that the property was in the possession of a lessee/mortgagee/licensee etc. in order to make use of the income from the property to provide maintenance to the minor. It is true that the actual possession of the property by the female Hindu is not necessary; it would suffice if there is evidence of constructive possession. But in this case there is no plea or evidence to show that Rahda was in constructive possession of the property. Mere right to claim maintenance is one thing and the possession of the property for the purpose of maintenance is quite another. Simply because the daughter was entitled to claim maintenance it cannot be held that the property was in the constructive possession of the party entitled to maintenance. Admittedly the property was not in the possession of a lessee/mortgagee/licensee for the purpose as aforesaid. 11. The learned counsel for the respondents would submit that the expression "possessed by" is not intended to apply for a mere possession without any vestige of title. The legislature intended this provision to apply in such cases where the Hindu female possessed the right of ownership of the property in question. Even physical possession of the property without the right of ownership will not attract the provisions of the section. Anyway, it is not necessary to dwell much on those aspects since admittedly Radha was not in physical possession of the property. As said earlier, it was not in her constructive possession as well. Therefore, the conditions mentioned in Sec.14(1) are not seen fulfilled. If so the question of enlargement of the limited estate blossoming into a full estate does not arise at all. 12. As said earlier, it was not in her constructive possession as well. Therefore, the conditions mentioned in Sec.14(1) are not seen fulfilled. If so the question of enlargement of the limited estate blossoming into a full estate does not arise at all. 12. Sec.14 of the Act intends to extinguish the estate called "limited estate" or "widow's estate" in Hindu Law and to make a Hindu Woman who under the old law would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder. The words "as full owner thereof and not as limited owner" as given in the last portion of Sec.14 (1) would suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. But in order to sustain that plea it must be proved that the property was possessed by a female Hindu as contemplated under Sec.14 of the Act. The decision in Nazar Singh and Others v. Jagjit Kaur and Others- AIR 1996 SC 855 has also been relied on in this connection. That was a case where the property was given to a female Hindu in lieu of her maintenance by way of compromise and accordingly she was in possession and enjoyment of that property from the date of compromise and thus it was held that the provisions of Sec.14 (1) of the Act is squarely applicable. Here, the property was not set apart for providing maintenance to Radha nor was the property in the physical or at least in the constructive possession of Radha. Had there been any evidence to show that any of these items was set apart for providing maintenance to Smt.Radha or that this property was least mortgaged or given on lease to other persons for the purpose of taking income so as to pay the same as maintenance to Radha then the position would have been different but no document whatsoever was executed by Kelu or by any of the legal heirs nor was any provision made in any document to show that the property was given possession to any lessee mortgagee or licensee for the purpose of taking income therefrom to provide maintenance to Smt. Radha. As such the contention that the property was in the constructive possession of Smt. Radha in lieu of maintenance must fall to the ground. 13. In Eramma v. Veerupanna - AIR 1966 SC 1879 it was held that the expression "possessed by" is not intended to apply to a case of mere possession without title and that legislature intended this provision to apply to cases where the Hindu female possesses the right of ownership on the property in question but mere physical possession of the property without the right of ownership will not attract Sec.14 (1) of the Act. It was held by the Supreme Court in Tulasamma v. Sesha Reddi V. AIR 1977 SC 1944 as hereunder: " (1) The provisions of Sec. 14 of the 1956 Act must be liberally construed in order to advance the object of the Act which is to enlarge the limited interest possessed by a Hindu Widow which was in consonance with the changing temper of the times. 2) It is manifestly clear that sub-s. (2) of Sec. 14 does not refer to any transfer which merely recognises a pre-existing right without creating or conferring a new title on the widow. This was clearly held by this Court in Badri Pershad's case ( AIR 1970 SC 1963 ) (supra). 3) That the Act of 1956 has made revolutionary and far- reaching changes in the Hindu Society and every attempt should be made to carry out the spirit of the Act which has undoubtedly supplied a long felt need and tried to do away with the invidious distinction between a Hindu male and female in matters of intestate succession. (4) That sub-s. (2) of S. 14 is merely a proviso to sub. s. (1) of Sec. 14 and has to be interpreted as a proviso and not in a manner so as to destroy the effect of the main provision. It was further held in paragraph 63 thus: "That the right of a Hindu widow to claim maintenance is undoubtedly a right against property though not a right to property. Such a riught can mature into a full-fledged one if it is charged on the property either by an agreement or any a decree. It was further held in paragraph 63 thus: "That the right of a Hindu widow to claim maintenance is undoubtedly a right against property though not a right to property. Such a riught can mature into a full-fledged one if it is charged on the property either by an agreement or any a decree. Even otherwise where a family possesses property, the husband, or in case of his death, his heirs are burdened with the obligation to maintain, the widow and therefore, the widow's claim for maintenance is not an empty formality but a pre-existing right. (2) Section 14 (2) which is in the nature of a proviso to S. 14 (1) cannot be interpreted in a way so as to destroy the concept and defeat the purpose which is sought to be effectuated by S. 14 (1) in conferring an absolute interest on the Hindu women and in doing away with what was here to before kn own as the Hindu Women's estate. The proviso will apply only to such cases which flow beyond the purview of the Explanation to Sec. 14 (1). 14. It is argued by the learned counsel for the appellant that Sec.14(1) and the explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the Hindu Succession Act and to obviate the gender inequality and that the provision should not be construed in such a manner as to defeat the object and the intendment of the Act. In the aforesaid decision it was found that where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given the actual possession under a final decree the property would be deemed to be possessed by her and by virtue of Sec.14(1) she would get absolute interest in the property. It was held that the possession of the widow however must be under some vestige of a claim, right or title because the Section does not contemplate the possession of any rank trespasser without any right or title. 15. Sri. It was held that the possession of the widow however must be under some vestige of a claim, right or title because the Section does not contemplate the possession of any rank trespasser without any right or title. 15. Sri. Sudheesh, the learned counsel for the appellants has relied upon the decision of the Supreme Court in Mangal Singh and Others v. Smt. Rattno - AIR 1967 SC 1786 where it was held as hereunder: "It is significant that the Legislature begins S. 14 (1) with the words "any property possessed by a female Hindu" and not "any property in possession of a female Hindu". If the expression used had been "in possession of" instead of "possessed by" the proper interpretation would probably have been to hold that, in order to apply this provision, the property must be such as is either in actual possession of the female Hindu or in her constructive possession. The constructive possession may be through a lessee, mortgagee, licensee etc. The use of the expression "possessed by" instead of the expression "in possession of ", in our opinion, was intended to enlarge the meaning of this expression. It is commonly known in English language that a property is said to be possessed by a person, if he is its owner, even though he may, for the time being, be out of actual possession or even constructive possession". 16. The decision of the Supreme Court in Sri Ramakrishna Mutt v. M. Maheswaran and Others - (2011) 1SCC 68 has also been referred to here. That was a case where one Kumudammal was given possession of the suit property and she was also given the right to enjoy the property by collecting rent of the same even during the lifetime of her husband Kannabiran Pillai who was only managing the properties on her behalf. Those documents clearly proved the possession of the property by Kumudammal right from 4-3-1939 and therefore, the subsequent death of her husband Kannabiran Pillai on 31-12- 1956 was held to be of no consequence. Therefore, that was a case where the widow was in possession of the property based on her pre-existing right of maintenance. In this case admittedly, the evidence would show that Radha was never in possession of the scheduled properties. So much so the decision cited supra does not come to the rescue of the appellants. 17. Therefore, that was a case where the widow was in possession of the property based on her pre-existing right of maintenance. In this case admittedly, the evidence would show that Radha was never in possession of the scheduled properties. So much so the decision cited supra does not come to the rescue of the appellants. 17. In order to succeed in a claim based on the words "any property possessed by a female Hindu" occurring in Sec.14 (1) of the Act it must be proved that the property was in the possession of the female concerned on the date of the commencement of the Hindu Succession Act, though the possession might have been either actual or constructive or in any form recognized by law. Even if the word "possession" is taken in its widest connotation still it must be shown that she was atleast in constructive possession of the property either in one form or other. Here, except the plea that Radha was entitled to be maintained, there is nothing to show that this property was set apart for her maintenance, or that it was in the possession of a person for the purpose of providing maintenance to her. Though Radha might have been entitled to claim maintenance it cannot be said that any item was separately kept apart for taking income for providing maintenance to Radha. There was no such case at all. The only case is that she was entitled to maintenance and so it should be held that the property was possessed by her as on the date of the commencement of Hindu Succession Act. Such an interpretation cannot be had. At least constructive possession should have been there. 18. The ratio enunciated in all the aforesaid decisions would make it clear that the Hindu female should possess the property though that possession can be even constructive, and it should be in lieu of maintenance. In this case, there was no documentary or other evidence to show that any of the items was set apart for taking income for providing maintenance to Radha mentioned earlier nor was any document executed so as to make use of the income from the property for the purpose of providing maintenance to Radha. In this case, there was no documentary or other evidence to show that any of the items was set apart for taking income for providing maintenance to Radha mentioned earlier nor was any document executed so as to make use of the income from the property for the purpose of providing maintenance to Radha. Therefore, even though Radha might have been entitled to claim maintenance that by itself is not sufficient to hold that the property was possessed by her in lieu of maintenance. In Dindayal v. Rajaram - AIR 1970 SC 1019 , it was held by the Apex Court that before any property can be said to be "possessed" by a Hindu Woman, two things are necessary (a) she must have had a right to the possession of that property and (b) she must have been in possession of that property either actually or constructively. 19. Following the decisions in Eramma v. Veerupanna - AIR 1966 SC 1879 ; Dindayal v. Rajaram - AIR 1970 SC 1019 ; Vaija v. Thakorbhai - AIR 1979 SCC 993; and Ram Vishal v. Jagan Nath - (2004) 9 SCC 302 it was held by a Division Bench of this court in Devu v. Preetha - 2012(1) KLT617 that it is a pre- existing right coupled with possession alone which can attract Sec.14 (1) of the Hindu Succession Act and it is such right coupled with possession which can blossom into full right .It was further held by the Division Bench thus: "The right of a Hindu widow is only to be maintained from out of the income of the joint family properties of which her deceased husband was a sharer. She has a charge too on such property. But that does not mean that she has a right to possession of joint family properties nor is she a coparcener entitled to claim possession along with the other members". 20. Therefore, in the light of the principles of law adumbrated in the various decisions cited supra, I have no hesitation to hold that the properties in question were not possessed by Radha in lieu of maintenance and that those properties were not held by Radha as limited estate so as to get itself blossomed in to full estate by virtue of Sec.14 of the Hindu Succession Act. The right of Radha was only to claim maintenance. The right of Radha was only to claim maintenance. There was no document whatsoever to show that any of the items were set apart from providing maintenance to Smt.Radha. Therefore, the contention that the properties in question were possessed by Smt.Radha in lieu of maintenance and so after Sec.14(1) of the Hindu Succession Act was introduced the limited estate got itself blossomed into a full estate is too tenuous to be countenanced. 21. The contention that Radha had full right over the plaint schedule property and so the properties were held by three co- owners; namely the respondent herein, Radha and Chiruthakutty and on the death of Chiruthakutty, Radha and Sreenivasan (the respondents herein) had equal share in the scheduled properties was rightly found against by the courts below. Chiruthakutty died in the year 1988. Radha, the mother of the defendant died in the year 1995. The contention that Radha had obtained equal right in the said property by virtue of the provisions contained in the Hindu Succession (Amendment) Act, 2005 cannot be sustained, in view of the fact that succession opened on the death of Chiruthakutty in 1988 and that Radha did not acquire any right over the property on the strength of Sec. 14 of the Hindu Succession Act. Respondent and his mother Chiruthakutty were having equal right in the property. On the death of Chiruthakutty her half right in the properties devolved upon Radha and the respondent. Hence, Radha-the appellant had only < share in the said property. Preliminary decree thus passed directing division of the properties shown in the schedule to the plaint and the written statement into four equal shares and to allot one such share to the plaintiffs/appellants (the heirs of Radha) and 3 such shares to be allotted to the defendant/respondent is perfectly correct. 22. In view of what is stated above, the preliminary decree granted by the trial Court which was upheld by the appellate Court, requires no interference. In the result, this second appeal fails and is dismissed. Parties are directed to suffer their respective costs.