SANTHOSH AND ORS. v. SARASWATHIBAI AND ANR

Citation: [2007] 12 S.C.R. 375

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

SANTHOSH AND ORS. v. SARASWATHIBAI AND ANR.pdf

Judgment text

SANTHOSH AND ORS. v. SARASWATIIIBAI AND ANR. NOVEMBER 20, 2007 [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ) _, Hindu Succession Act, 1956: Sections 14(1) and (2)-Applicability of-Right offemale Hindu to possess anyproperty-Jn a consent decree, widow allottedproperty by way ofmaintenance with limited right overproperty-Held: Since property was acquired in lieu ofright to maintenance, it was by virtue ofpre-existing right and such acquisition would not be within ambit ofs. 14(2)-s. 14(1) would apply-Property would become absolute property ofsuch female Hindu. In a suit between the first wife of'T' and the second wife and her son, a compromisewas entered and a consent decree dated 20. 7. 1964 was passed.

The terms ofconsent decreewas that the land to the extent of6 acres 33 guntas was given to first wife for her maintenance till her death; thatthe secondwife and her sonwould not interfere and obstruct in the peaceful possession ofthat portion ofland given to first wife; that the first wifewould not alienate land which was given for maintenance ~ ' and after the death offirst wife, the land given to herwould be reversed to the second wife and her son. The first wife died in 1992. Respondents-plaintiffs who were heirs and legal representatives ofthe firstwife filed a suit claiming the said land on the ground that first wife was the owner thereofin terms ofs. 14(1) ofHindu Succession Act, 1956.

Appellants-defendants contested the suit on the ground that first wifewas notthe absolute owner ofthe said property havingbeen allotted -i to her by reason ofthe consent decree and that the suit land was allotted to her byway ofmaintenance which she could keep in possession only _, during her life time and therefore s. 14(2) ofthe Actand not s. 14(1) would apply. The suit was dismissed on the ground that respondents were not the owners and were not in possession ofthe suit property. Firstappellate Court allowed the appeal opining that s. 14(1) being applicable, the 8 respondents became the owners ofthe suit property. Second appeal by appellants was dismissed. Hence the present appeal. Dismissing the appeal, the Court HELD: 1. The possession of first wife in respect of 6 acres 33 guntas ofland even prior to the institution ofthe suit has been accepted in the said consent decree. Appellants undertook not to interfere in her peaceful possession thereover.

Admittedly after the death of'T' who died after coming into force of the Hindu Succession Act, first wife became one ofthe co-owners ofthe property. It is, therefore, not a case where she had no right to possess the said land. Ifshe had a right to possess the said land as a co-owner, the question ofdivesting her ofthe said right by invoking sub-s. (2) ofs. 14 ofthe Act would not arise. The stipulations made in the consent decree dated 20. 7. 1964 must thus be construed having regard to the well settled legal position. [Paras 13and14) [383-G; 384-A, B, CJ Shakuntla Deviv. Kam/a andOrs. , [2005) 5SCC 390 and Chandrika Singh (D) byL. Rs v. SarjugSingh andAnr. , (2006) 13 SCALE 408, relied on. . - Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva and Ors. , [1959) Supp. I SCR 968, referred to. 2. 1.

The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter ofgrace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and ifhe or the family has property, the female has the legal right to be maintained SANTHOSH v. SARASWATHlBAI 377 · therefrom. Ifa charge is created for the maintenance ofa female, the said right becomes a legally enforceable one. At any rate, even without· a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights. [Para 15] (384-D, E, F, G] _, 2. 2. S.

14(1) and the Explanation thereto have been couched in the widest possible terms and must be liberally construed in favour ofthe females so as to advance the object of the 1956 Act and promote the socio-economic ends sought to be achieved by this long needed legislation. Sub-section (2) ofs. 14 is in the nature ofa proviso and has a field of its own without interfering with the operation of s. 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by s. 14(1) or in a way so as to become totally inconsistent with the main provision. Sub-section (2) of s. 14 applies to instruments, decrees, awards, gifts, etc. which create independent and new titles in favour of the females for the fU"St time and has no applicationwherethe instrument concerned merely seeks to confirm, endorse, declare or recognise preexisting rights. In such cases a restricted estate in favour ofa female is legally permissible and s.

14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition orshare to which the female is entitled, the sub-section has absolutely no application and the .... female's limited interest would automatically be enlarged into an absolute one by force ofs. 14(1) and the restrictions placed, ifany, under the documentwould haveto be ignored. Thus where a propertyis allotted or transferred to a female in lieu ofmaintenance or a share at partition, the instrument is taken out ofthe ambit ofsub-section (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee. [Para 15] [385-A, B, C, D, E, F] .... , 2. 3. The use ofexpress terms like 'property acquired by a female Hindu at a partition', 'or in lieu of maintenance', 'or arrears of maintenance', etc. in the Explanation to s.

14(1) clearly makes sub- section (2) inapplicable to these categories which have been expressly excepted from the operation ofsub-section (2). The words 'possessed by' used by the Legislature in s. 14(1) are of the widest possible amplitude and include the state ofowning a property even though the owner is not in actual or physical possession ofthe same. Thus, where 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 actual possession under a final decree, the property would be deemed to be possessed by her and by force ofs. 14(1) she would get absolute interest in the property. It is equally well settled that the possession ofthewidow, however, must be undersomevestigeofaclaim, right or title, because the section does not contemplate the possession ofany rank trespasser without any right or title. [Para 15] (385-G; 386-A, B, CJ V Tulasamma and Ors. v. Sesha Reddy (dead) by L. Rs.

, (1977] 3 SCC 99 and Nazar Singh and Ors. v. Jagjit Kaur and Ors. , (1996] 1 sec 35, relied on. 3. The pre-existing right offirst wife was crystallized by reason of the said consent decree. Furthermore there is nothing on record to show that 12 acres 33 guntas ofland was the only property belonging to the joint family and thus, she had been granted more lands to which she was not entitled to. (Para 17] [387-G; 388-A] CIVIL APPELLATE nJRISDICTION : Civil Appeal No. 5321 of . - 2007. From the final Judgment and Decree dated 15. 11. 2005 ofthe High Court ofKamataka at Bangalore in R. S. A. No. 276/2003. C. G. Solshe and Vinesh Solshe for the Appellants. Basava Prabhu S. Patil, V. N. Raghupathy, B. Subrahmanya Prasad, Narayan P. Kengas~r and B. B. Patil for the Respondents. ,_ The Judgment ofthe Court was delivered by S. B. SINHA, J. 1. Leave granted 2.

Application ofSection 14(1) ofthe Hindu Succession Act, 1956 (hereinafter referred to as 'the Act') calls for consideration in this appeal which arises out of a judgment and order dated 15th November, 2005 passed by a learned Single Judge of the Kamataka High Court at -I Bangalore in Regular Second Appeal No. 276 of2003. 3. The short factual matrix involved may be noticed at the threshold. .... 4. Forthe said purpose, we may notice the genealogy ofthe family. Shivaraya (Dead) S/o. Hanumanthappa Patil I Trimukhrao (Died in 1957) Manikappa (Dead) = 1st wife Sundari Bai (Died on 16. 10. 1992) =2nd wife Kashibai (D-4) Saraswathi Sharadabai (P-1) (P-2) Shantabai Mallikarjun Jagadevi Mallamma Neelamma Neelamma (Died in 1987) I = wife K Kamalabai (D-3) I Santosh Satish (D-1) (D-2) 5. Original Suit bearing No. 34of1964 was filed by Sundrabai, first wife of Trimukhrao (respondent No. 1 herein) against Mallikarjun (since deceased) and Kashibai (defendant No. 4 therein).

A consent ~ ~ decree was passed in that suit, the relevant clauses whereof were as under:- "1. The plaintiffand the defendant no. 2 are the wives ofdeceased Trimbakrao. The defendant No. I is the son of Trimbakrao. The plaintiffSundrabai and Mallikarjun and his mother Kashibai resides separately. ,_ ,.. , 2. That as per compromise the land Sy. No. 73 Kh. No. 145 to the extent ofmeasuring 6 acres 33 gunatas. R. A. Rs. 9. 00 situated at Khandala, on north side bounded in the east the land of Shivalingappa Biradar in the west public way. In the north the land ofShankarappa in the south remain land Sy. No. 73, was given to the plaintifffor her maintenance. She is in possession ofthat portion of land since 5/6 years. The defendants will not interfere and obstruct in the peaceful possession ofthat portion of land which was given to the plaintifffor her maintenance, till her death. The defendants No, 1and 2 will remain in possession ofremaining half portion ofland Sy. No.

73 on south side as owner. The plaintiffwill not alienate (through gift or sale) land which was given for her maintenance. ft 3. That after the death ofthe plaintiffthe land given to her will be reversed to the defendant No. 1 and 2. The parties will bear their costs ofthe cost". " .... 6. Mallikarjun died in the year 1987. Sundrabai died in 1992. '• Respondents herein who are heirs and legal representatives ofSundrabai filed Original Suit No. 210 of 1993 claiming the said land admeasuring 6 Acres 33 guntas from the Northern side ofSurvey No. 73 on the ground that she had become owner thereof in terms ofSection 14(1) ofthe Act. Appellants who were arrayed in the suit as defendants inter alia contended that Sundrabai was not the absolute owner ofthe said property v having been allotted to her by reason of the consent decree.

It was furthermore contended that the land in suit was allotted to her by way of maintenance which she could keep in possession only during her life time and, therefore, Section 14(2) of the Act and not Section 14(1) of the Act would apply. 7. The said suit was dismissed on the premise that the plaintiffs were not the owners and were not in possession ofthe suit property. _, 8. On an appeal having been preferred thereagainst, the Principal .. ;- District Judge Bidar by his judgment and order dated 2nd January, 2003 allowed the said appeal opining that Section 14(1) of the Act being applicable, the-plaintiffs became the owners ofthe suit property. By reason ofthe impugned judgment the second appeal preferred by the appellants has been dismissed. 9. Mr.

Sofashe, learned counsel appearing on behalfofthe appellants, in support of this appeal inter alia would submit tliat the High Court committed a serious error of law in so far as it failed to take into consideration that Sundrabai on partitioi: could not have been allotted 6 Acres 33 guntas ofland and in that view ofthe matter, although the land • which could fall in her share would be covered by Section 14(1) ofthe Act, but according to the. learned counsel the share of Sundrabai in the joint family being 7/24 in the total land ofjoint family being 12 acres 33 guntas, share of Sundrabai would come only to 3 acres 29 guntas. It was submitted that the word "possessed" contained in Section 14 (1) ofthe Act must be construed to mean ownership as has been held by this Court in [1959] Supp. 1 SCR 968 : Gummalapura Taggina Matada ~.. - . Kotturuswami v. Setra Veeravva and Ors. ·~ 10. Mr. Patil, learned counsel appearing on behalfofthe respondents, on the other hand, would.

support the judgment. It was moreover contended that there is nothing on record to show that the total agricultural lands belonging to the joint family was only to the extent of 12 acres 33 guntas. In fact, Mr. Patil would urge that there were other properties of "-I the joint family besides,. the suit land. 11. Sub-sections (1) and (2) of Section 14 of the Act reads as under:- "14. Property ofafemale Hindu to be her absolute property- (! ) Any property possessed by a female Hindu, whether acquired before or after the commencement ofthis Act, shall be held by her as full owner thereofand not as a limited owner.

Explanation - In this sub-section, "property" includes both ,_ moveable and immovable property acquired by a female Hindu by ,__ inheritance or devise, or at apartition, or in lieu ofmaintenance or anears of maintenance, or by gift from any person, whether a relative or not, before, at or after the 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 ofthis 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 ofa civil Court or under an 4 award where the terms ofthe gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. " 12.

In Gummalapura Taggina Matada (supra) on which reliance has been placed by the learned counsel, this Court held that Section 14(1) ofthe Act has wide application. It not only takes within its sweep a land which was not only in possession ofthe female Hindu but also covers the t ..... ' land over which she has a right to possess stating:- • "Ofcourse, possession referred to in section 14 need not be actual physical possession or personal occupation ofthe property by the Hindu female but may be possession in law. The possession ofa licensee, lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female v owner would be her possession for the purpose ofsection 14. The word "possessed" is used in section 14 in a broad sense and in the context possession means the state ofowning or having in one's hands or power. It includes possession by receipt of rents and profits.

The learned Judges expressed the view that even if a trespasser were in possession ofthe land belonging to female owner, it might conceivably be regarded as being in possession of the female owner, provided the trespasser had not perfected his title. We do not think that it is necessary in the present ~ase to go to the extent to which the learned Judges went. It is sufficient to say that "possessed" in section 14 is used in a broad sense and in the context means the state of owning or having in one's hand or power. In the case of Gostha Behari v. Haridas Samanta, P. N. Mookherjee, J. , expressed his opinion as to the meaning of the words "any property possessed by a female Hindu" in the following words:- "The opening words in "property possessed by afemale Hindu" obviously mean that to come within the purview ofthe section -. • the property must be in possession of the female concerned at the date of the commencement of the Act.

They clearly contemplate the female's possession when the Act came into force. That possession might have been either actual or constructive or in any form recognised by law, but unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word "possession" in its widest connotation, when the Act came into force, the section would not apply. " • (See also (2005] 5 SCC 390 : Shakuntla Devi v. Kam/a and Ors. , and (2006) 13 SCALE 408 : Chandrika Singh (D} by L. Rs v. Sarjug Singh and Anr. , 13. Sundrabai's possession in respect of 6 acres 33 guntas ofland 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 ofTrmukhrao who died after coming into force ofthe Act, Sundrabai became one of the co-owners ofthe property being one ofhis wives who had half share in the joint properties. Succession thereofwas governed by Sections 6, 8 and 12 ofthe Act. It is, therefore, not a case where she had no right to possess the said land. Ifshe had a right to possess the said land as a coowner, the question of divesting her ofthe said right by invoking subsection (2) of Section 14 ofthe Act would not arise. 14. The stipulations made in the consent decree dated 20th July, ,_ I964 must thus be construed having regard to the well settled legal position. It is now a well settled principle oflaw that in considering a deed, the legal position obtaining in this behalf should be kept in mind. 15. Legal position in regard to the right of a female Hindu was laid down by this Court in [1977] 3 SCC 99 : V Tulasamma and Ors. v. Sesha Reddy (dead) by L. Rs.

, wherein the legal consequences were summarized as under :- "(I) The Hindu female's right to maintenance is not an empty fomrnlity or an illusory claim being conceded as a matter ofgrace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and ifhe or the family has property, the female has the legal right to be maintained therefrom. Ifa charge is created for the maintenance of a female, the said • right becomes a legally enforceable one.

At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the preexisting rights. (2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms and must be liberally construed in favour ofthe females so as to advance the object ofthe 1956 Act and promote the socio-economic ends sought to be achieved by this long needed legislation. (3) Sub-section (2) of Section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of Section 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect ofthe main provision or the _J protection granted by Section 14(1) or in a way so as to become totally inconsistent with the main provision. (4) Sub-section (2) of Section 14 applies to instruments, decrees, awards, gifts, etc.

which ·create independent and new titles in favour ofthe females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-existing rights. In such cases a restricted estate in favour ofa female is ! egally permissible and Section 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely . no application and the female's limited interest would automatically be enlarged into an absolute one by force of Section 14(1) and the restrictions placed, ifany, under the document would have to be ignored. Thus where a property is allotted or transferred to female in lieu ofmaintenance or a share at partition, the instrument is tal(en out ofthe ambit ofsub-section (2) and would be governed . ; .

by Section 14(1) despite any restrictions p laced on the powers ofthe transferee. (5) The use ofexpress terms like 'property acquired by a female Hindu at a partition', 'or in lieu of maintenance', 'or arrears of maintenance', etc. in the Explanation to Section 14(1) clearly makes sub-section (2) inapplicable to these categories which have been expressly excepted from the operation of sub-section (2). (6) The words 'possessed by' used by the Legislature in Section 14(1) are of the widest possible amplitude and·include the state of owning a property even though the owner is not in actual or physical possession ofthe same. Thus, 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 actual possession under a final decree, the property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property.

It is equally well settled that ,_ the possession ofthe widow, however, must be under some vestige ofa claim, right or title, because the section does not contemplate the possession ofany rank trespasser without any right or title. (7) That the words 'restricted estate' used in Section 14(2) are wider than limited interest as indicated in Section 14(1) and they include not only limited interest, but also any other kind oflimitation that may be placed on the transferee. " 16. In Nazar Singh and Ors. v. Jagjit Kaur and Ors. , [1996] 1 I . SCC 35, this Court following Tulasamma (supra) held as under:- "The principles enunciated in this decision have been reiterated in a number ofdecisions later but have never been departed from.

According to this decision, Sub-section (2) is confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. It has also been held that where the property is acquired by a Hindu female in lieu of right ofmaintenance inter alia, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit ofSub-section (2) even ifthe instrument, decree, order or award allotting the property to her prescribes a restricted estate in the property. Applying this principle, it must be held that the suit lands, which were given to Harmel Kaur by Gurdial Singh in lieu \. of her maintenance, were held by Harmel Kaur as full owner thereof and not as a limited owner notwithstanding the several restrictive covenants accompanying the grant.

(Also see the recent decision ofthis Court in Mangat Mal v. Punni Devi, where a right ~ . :.. -- ~ to residence in a house property was held to attract Sub-section (1) ofSection 14 notwithstanding the fact that the grant expressly conferred only a limited estate upon her. ) According to Sub-section (1), where any property is given to a female Hindu in lieu ofher maintenance before the coinmencement ofthe Hindu Succession f. d, such property becomes the absolute property of such female ~· J Hindu on the commencement ofthe Act provided the said property was "possessed" by her. Where, however, the property is given to a female Hindu towards her maintenance after the commencement of the Act, she becomes the absolute owner thereofthe moment she is placed in possession ofthe said property (unless, of course, she is already in possession) notwithstanding the limitations and restrictions contained in the instrument, grant or award whereunder the property is given to her.

This proposition follows from the words in Sub-section (1 ), which insofar as is relevant read : "Any property possessed by a female Hindu.... after ; the commencement ofthis Act shall be held by her as full owner and not as a limited owner". In other words, though the instrument, grant, award or deed creates a limited estate or a restticted estate, as the case may be, it stands transformed into an absolute estate provided such property is given to a female Hindu in lieu of maintenance and is placed in her possession. So far as the expression "possessed" is concerned, it too has been the subject- _, . matter ofinterpretation by several decisions ofthis Court to which it is not necessary to refer for the purpose of this case. " -,; (emphasis supplied) 17. In view of the aforementioned binding authoritative pronouncements ofthis Court, we are ofthe opinion that the pre-existing right of Sundrabai was crystallized by reason ofthe 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. A 18. In view ofthe matter, we do not find any infirmity in the impugned judgment. The appeal is accordingly dismissed with costs. Counsel's fees assessed at Rs. I0,0001-. D. G. Appeal dismissed. B