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2023 DIGILAW 678 (CHH)

Lala Ram, S/o Deendayal Sahu v. Shyam Bai, Wd/o Deendayal Sahu

2023-12-08

RAKESH MOHAN PANDEY

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JUDGMENT : Heard. 1) This appeal has been preferred by the plaintiffs challenging therein the judgment and decree passed by the learned Additional District Judge Dhamtari, District Dhamtari (C.G.) in Civil Appeal No. 72-A/2011 dated 16.09.2011, whereby the judgment passed by the learned Civil Judge Class-II Kurud, District Dhamtari in Civil Suit No. 29-A/2005 dated 30.04.2010 has been set aside and findings have been reversed. 2) This appeal was admitted on the following substantial question of law:- “Whether the first appellate Court was justified in reversing the judgment and decree of the trial Court ignoring the judgment and decree passed in Civil Suit No. 29A/72 dated 11.08.1976 by holding that Shyam Bai was the sole owner of the suit property in view of Section 14 (1) of the Hindu Succession Act, 1956 by recording a finding which is perverse to the record?” 3) The facts of the present case are that earlier a Civil Suit No. 29-A/72 was filed between the parties claiming therein partition of agricultural land and house and for possession before the learned Civil Judge Class-II, Dhamtari wherein the parties entered into a settlement and a compromise decree was passed on 11.08.1976. The suit property was partitioned between the parties and 1/4th share was given to defendant No. 1 – Shyam Bai to enjoy the fruits of the property during her lifetime and thereafter the property had to be divided between the remaining parties. Defendant No.1 sold part of the property i.e. Survey Nos. 1354/3 and 1467/3 total admeasuring 1.61 hectares through a registered sale deed dated 14.06.2005 in favour of defendants No. 2 and 3, therefore, the plaintiffs herein filed a civil suit for declaration that the sale deed dated 14.06.2005 be declared null and void and for permanent injunction as the sale deed is hit by the compromise decree passed in Civil Suit No. 29-A/72 dated 16.08.1976. The defendants filed their written statements and stated that by virtue of Section 14(1) of the Hindu Succession Act, 1956, the defendants got exclusive rights over the property which includes the right to alienate the suit property. It was further pleaded that after partition, possession was handed over to defendant No.1 and the sale deed cannot be questioned on the basis of the provisions contained in Section 14(2) of the Hindu Succession Act. It was further pleaded that after partition, possession was handed over to defendant No.1 and the sale deed cannot be questioned on the basis of the provisions contained in Section 14(2) of the Hindu Succession Act. The learned trial Court framed various issues and held that the sale deed executed by defendant No.1 in favour of defendants No. 2 and 3 is null and void being hit by compromise judgment and decree dated 16.08.1976. It is further held that the plaintiffs are entitled to the grant of decree of mandatory injunction. An appeal was preferred by the defendants and the learned first appellate Court vide judgment dated 16.09.2011 reversed the findings recorded by the learned trial Court on the ground that by virtue of Section 14(1) of the Hindu Succession Act, defendant No.1 became absolute owner of the property, therefore, she had right to alienate the property. It was also observed that the learned trial Court has committed an error of law in holding that the sale deed executed by defendant No.1 in favour of defendants No. 2 and 3 is null and void. The plaintiffs have preferred this second appeal challenging therein the judgment and decree passed by the learned first appellate Court. 4) Learned counsel appearing for the appellants/plaintiffs would submit that undisputedly, the compromise decree was passed between the parties in Civil Suit No. 29-A/72 dated 11.08.1976 wherein limited right was given to defendant No. 1 to enjoy the fruits of the subject property during her lifetime, but defendant No.1 misused the liberty and sold the property through registered sale deed dated 14.06.2005 to defendants No. 2 and 3. 5) In support thereof, he would place strong reliance upon the matter of Sadhu Singh vs. Gurdwara Sahib Narike and Others, reported in (2006) 8 SCC 75 wherein the Hon’ble Supreme Court while dealing with a similar issue held in para-11 as under:- “11. On the wording of the section and in the context of these decisions, it is clear that the ratio in V. Tulasamma v. Shesha Reddy, (1977) 3 SCC 99 has application only when a female Hindu is possessed of the property on the date of the Act under semblance of a right, whether it be a limited or a pre-existing right to maintenance in lieu of which she was put in possession of the property. Tulasamma ratio cannot be applied ignoring the requirement of the female Hindu having to be in possession of the property either directly or constructively as on the date of the Act, though she may acquire a right to it even after the Act. The same is the position in Raghubar Singh v. Gulab Singh, (1998) 6 SCC 314 wherein the testamentary succession was before the Act. The widow had obtained possession under a will. A suit was filed challenging the will. The suit was compromised. The compromise sought to restrict the right of the widow. This Court held that since the widow was in possession of the property on the date of the Act under the will as of right and since the compromise decree created no new or independent right in her, Section 14 (2) of the Act had no application and Section 14 (1) governed the case, her right to maintenance being a pre-existing right. In Karmi v. Amru, (1972) 4 SCC 86 the owner of the property executed a will in respect of a self-acquired property. The testamentary succession opened in favour of the wife in the year 1938. But it restricted her right. Thus, though she was in possession of the property on the date of the Act, this Court held that the life estate given to her under the will cannot become an absolute estate under the provisions of the Act. This can only be on the premise that the widow had no pre-existing right in the self- acquired property of her husband. In a case where a Hindu female was in possession of the property as on the date of the coming into force of the Act, the same being bequeathed to her by her father under a will, this Court in Bhura v. Kashi Ram, (1994) 2 SCC 111 after finding on a construction of the will that it only conferred a restricted right in the property in her, held that Section 14(2) of the Act was attracted and it was not a case in which by virtue of the operation of Section 14 (1) of the Act, her right would get enlarged into an absolute estate. This again could only be on the basis that she had no pre-existing right in the property. This again could only be on the basis that she had no pre-existing right in the property. In Sharad Subramanyan v. Soumi Mazumdar, (2006) 8 SCC 91 this Court held that since the legatee under the will in that case, did not have a pre-existing right in the property, she would not be entitled to rely on Section 14(1) of the Act to claim an absolute estate in the property bequeathed to her and her rights were controlled by the terms of the will and Section 14 (2) of the Act. This Court in the said decisions has made a survey of the earlier decisions including the one in Tulasamma. Thus, it is seen that the antecedents of the property, the possession of the property as on the date of the Act and the existence of a right in the female over it, however limited it may be, are the essential ingredients in determining whether sub-section (1) of Section 14 of the Act would come into play. What emerges according to us is that any acquisition of possession of property (not right) by a female Hindu after the coming into force of the Act, cannot normally attract Section 14(1) of the Act. It would depend on the nature of the right acquired by her. If she takes it as an heir under the Act, she takes it absolutely. If while getting possession of the property of the property after the Act, under a devise, gift or other transaction, any restriction is placed on her right, the restriction will have play in view of Section 14(2) of the Act.” 6) On the other hand, learned counsel for respondents No. 2, 3(a) & 3(b) would oppose. He would submit that the compromise decree recorded by the Civil Judge Class-II, Kurud in Civil Appeal No. 29-A/72 was against public policy; therefore, it was not binding upon defendant No.1. He would further submit that by virtue of the provisions of the Hindu Succession Act defendant No.1 became the absolute owner, therefore, she had the right to execute the sale deed. He would also submit that the learned first appellate Court has rightly allowed the appeal preferred by the defendants. 7) In support thereof, he has placed reliance on the judgment of the Hon'ble Supreme Court rendered in the matter of V. Muthusami (dead) by Lrs. He would also submit that the learned first appellate Court has rightly allowed the appeal preferred by the defendants. 7) In support thereof, he has placed reliance on the judgment of the Hon'ble Supreme Court rendered in the matter of V. Muthusami (dead) by Lrs. vs. Angammal and Others, reported in AIR 2002 SC 1279 . In the said judgment, paras- 17, 18 and 19 are relevant which are reproduced herein below:- “17. Arimuthu had personal obligation to maintain his wife-Angammal. After his death Angammal could enforce her tangible right of maintenance over the estate left behind by her husband. After three days of the death of her husband, the entire estate of her husband in the form of movable properties were received by Alagirisamy for which he executed the receipt on September 11, 1940 – Ex.A-6. Thereafter, on 17 -10-1940. Alagirisamy and his wife executed the deed – Ex.A-2 in favour of Angammal providing for payment of Rs.5 per month to her and a charge was created over the properties including suit land of Alagirisamy. In the deed it was also provided that in case of default of payment Angammal would be entitled to take possession of the land. The submission of learned counsel for the defendant that Angammal is claiming maintenance over the properties of her father-in-law – Alagirilsamy – is not sustainable inasmuch as Angammal is claiming maintenance as of right against the property i.e. jus-ad-rem left behind by her husband as property includes both movable and immovable. The right of maintenance could be enforced by Angammal against the estate of her husband in the hands of Alagirisami, though Angammal was not in actual physical possession of the land, she was in legal possession as she never parted with the right of her maintenance and she could enforce such right in law. The finding of the High Court that by Ex. A-2 a contractual right was given to Angammal as the deed was executed in view of the settlement arrived at the intervention of the Panchayat is erroneous as Panchayat only helped the parties to come to a settlement in recognition of her right to be maintained from the properties of her husband. 18. A-2 a contractual right was given to Angammal as the deed was executed in view of the settlement arrived at the intervention of the Panchayat is erroneous as Panchayat only helped the parties to come to a settlement in recognition of her right to be maintained from the properties of her husband. 18. By the deed – Ex.A-4 executed on June 13, 1945 by Alagirisamy in favour of his grand daughter – Gowrammal and her husband – Subramania, a life interest was created over the suit land in favour of Gowrammal and Subramania and in the said deed a provision was made for payment of maintenance to Angammal. In other words. Alagirisamy accepted the pre-existing right of maintenance of Angammal given effect to by the deed – Ex.A-2 and thereafter the said right preserved by Ex.A-4. Ex.A-5 is the deed of maintenance executed on January 21, 1946 by Subramania, Gowrammal and their minor daughter in favour of Angammal by which she was given a right to enjoy the income from the suit property during her life-time, and thereafter would revert back to settlers. Learned senior counsel for the defendant has contended that as Subramania and Gowrammal acquired only limited interest under Ex.-A4 and they could not have transferred a better title. This contention is not acceptable as even prior to the date Ex.A-2 was executed the right of maintenance of Angammal continued and by this deed (Ex.A-5) also her pre-existing right of maintenance was recognised and a charge was also created over the suit land in favour of Angammal. There is a dispute regarding actual physical possession of the suit land by Angammal but it is immaterial as she had legal possession, which would be sufficient in view of the law laid down in Tulsamma's case. 19. Let us now examine whether Angammal became the full owner of the suit property by virtue of Section 14 of the Act. Sub-section (2) of Section 14 of the Act confines to cases where properties are acquired by a Hindu female for the first time as a grant. Angammal did not come for the first time into possession of the suit property on the basis of Ex.A-5 and her possession in law continued from the date Ex.A-2 was executed on 17-10-1940 and this possession was also confirmed by Ex.A-4 dated June 13, 1945 and Ex.A-5 dated January 21, 1946. Angammal did not come for the first time into possession of the suit property on the basis of Ex.A-5 and her possession in law continued from the date Ex.A-2 was executed on 17-10-1940 and this possession was also confirmed by Ex.A-4 dated June 13, 1945 and Ex.A-5 dated January 21, 1946. Therefore, possession of Angammal was not by virtue of sub-section (2) of Section 14. As Angammal has come into possession of the suit land by virtue of pre-existing right of maintenance out of the estate of her late husband, the present case is covered by sub-section (1) of Section 14 and therefore after coming into force of the Act she became full owner over the suit land and as a full owner she had power to execute the agreement for sale dated 13-2-1975 – Ex.B-1 in favour of the plaintiff. Therefore, plaintiff could enforce this agreement of sale, which he did by filing the present suit. In view of the above position the suit should not have been dismissed by the Courts below on the ground of want of title in Angammal. Accordingly, we hold that both the High Court and the trial Court erred in law in rejecting the claim of the plaintiff and consequently the judgment of the trial court and the impugned judgment of the High Court to that extent are set aside.” 8) In Santosh & Ors. vs. Saraswathibai & Anr., reported in AIR 2008 SC 500 , the Hon'ble Supreme Court in paras- 13 and 17 observed as under:- “13. Sundrabai's possession in respect of 6 acres 33 guntas of land even prior to the institution of the suit has been accepted in the said consent decree. Appellants herein undertook not to interfere in her peaceful possession thereover. Admittedly after the death of Trimukhrao who died after coming into force of the Act, Sundrabai became one of the co-owners of the property being one of his wives who had half share in the joint properties. Succession thereof was governed by Sections 6, 8 and 12 of the Act. It is, therefore, not a case where she had no right to possess the said land. If she had a right to posses the said land as a co-owner, the question of divesting her of the said right by invoking sub-section (2) of Section 14 of the Act would not arise. 17. It is, therefore, not a case where she had no right to possess the said land. If she had a right to posses the said land as a co-owner, the question of divesting her of the said right by invoking sub-section (2) of Section 14 of the Act would not arise. 17. In view of the aforementioned binding authoritative pronouncements of this Court, we are of the opinion that the pre-existing right of Sundrabai was crystallized by reason of the said consent decree. Furthermore there is nothing on record to show that 12 acres 33 guntas of land was the only property belonging to the joint family and thus, she had been granted more lands to which she was not entitled to.” 9) In Ram Lubhaya & Ors. vs. Smt. Lachhmi & Ors., reported in AIR 2010 Punjab and Haryana 137 the Punjab and Haryana High Court has observed in paras- 41 and 42 as under:- “41. Once Smt. Shankari is held to be widow of Saria, merely because in the previous suit a compromise was entered into, cannot come in the way of Smt. Shankari to acquire full ownership under Section 14(1) of the Act as she being a widow had a existing right in the land, which matured into absolute ownership on coming into force of the Act. 42. Ex. P.1 cannot be said to be an instrument of transfer, in favour of Smt. Shankari under Section 14 (2) of the Act, as contended by the learned senior counsel for the appellants. The property right under Section 14 (2) of the Act, is one given by a person holding right in the property, which is capable of being transferred in the name of the lady. Every judgment and decree, therefore, cannot take away right of widow to claim absolute ownership right under Section 14 (1) of the Act. The Hon'ble Supreme Court has held that any decree or judgment passed is of no consequence, in conferring of absolute right in the widow on coming into force of the Act.” 10) Learned counsel for the State would support the judgment passed by the first appellate Court. 11) I have heard learned counsel appearing for the parties and perused the records of the Courts below. 11) I have heard learned counsel appearing for the parties and perused the records of the Courts below. 12) From a perusal of Ex.-P/2, it is quite vivid that the compromise decree was passed by the Civil Court on 11.08.1976, whereby 1/4th share was given by defendant No. 1 with a rider that she has the right to use the property during her lifetime and thereafter property which fell in the share of defendant No.1 would devolve between the remaining members of the family. Though the learned counsel for respondents has stated that the compromise decree passed by the court below dated 11.08.1976 was against public policy, it was never challenged before any competent Court and thus, it attained finality and binding for the parties. From a perusal of the contents of the compromise decree, it is apparent that defendant No. 1 was given limited rights over the property which fell in her share. Defendant No.1 sold the part of the property i.e. Survey Nos. 1354/3 and 1467/3 total ad-measuring 1.61 hectares through a registered sale deed dated 14.06.2005 in favour of defendants No. 2 and 3. The issue involved in the present case is whether defendant No. 1 had the right to alienate the property contrary to the rights given to her through a compromise decree. 13) The Hon'ble Supreme Court in the matter of Sadhu Singh (supra) while dealing with a similar issue relying upon the judgment passed by the Hon'ble the Supreme Court in the matter of V. Tulasamma v. Shesha Reddy, reported in (1977) 3 SCC 99 , held that when a female Hindu is possessed of the property on the date of the Act under the semblance of a right, that such right given to a widow by 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, the provisions of Section 14 (1) of the Hindu Succession Act, 1956 would not attract. 14) The provisions of Section 14 of the Hindu Succession Act, 1956 are relevant and are reproduced herein below:- “14. 14) The provisions of Section 14 of the Hindu Succession Act, 1956 are relevant and are reproduced herein below:- “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 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” 15) Taking into consideration the legal position discussed above and the provisions of Section 14 including Explanation of the Hindu Succession Act, 1956, it is quite vivid that defendant No. 1 was given a limited right which does not include the right to sell or alienate, therefore, the findings recorded by the learned first appellate Court are perverse and contrary to the ratio laid down by the Hon'ble Supreme Court. Consequently, the substantial question of law is answered in the affirmative in favour of the plaintiffs and the second appeal is allowed. The judgment and decree passed by the first appellate Court is hereby set aside and that of the learned trial Court is hereby restored. 16) A decree be drawn accordingly.