BOMBAY HIGH COURT
V.H. Bhairavia, J.
S.A. No. 266 of 1983. D/d. 7.7.1994.
For the Appellant :- S.G. Karandikar with G.B. Karandikar, Advocates.
Tarabai Dattatraya Guirathi - Appellant
Rangnath Vishwanath Gujarathi - Respondent
For the Respondent :- G.R. Rege, Advocate.
V.H. Bhairavia, J. - This appeal is by the original defendants against the judgment and order dated 10th March, 1983 passed by the 11 Extra Assistant judge, Nasik, in Civil Appeal No. 339 of 1980, confirming the judgment and decree dated 29th July 1980 passed by the learned Civil Judge, Junior Division, Sinnar, in Regular Civil Suit No. 60 of 1972.
2. The plaintiff filed the suit for possession of the suit property, being Municipal House No. 548 situated at Kasbe-Sinnar, taluka Sinnar, District Nasik, which house is on the record of the City Survey, being C.S. Nos. 1306 and 1307, and for mesne profits from the defendants. The trial Court decreed the suit by its judgment and decree dated 29th July 1980. In appeal filed against the aforesaid judgment and decree by the defendants, the appellate Court try its judgment and order dated 10th March, 1983 confiremed the trial Court's decree and dismissed the appeal. Hence this appeal.
3. As a very Important, question of law is raised in this second appeal on behalf of the appellants; a few facts are required to be stated. Municipal House No. 548 standing on C.S. Nos. 1306 and 1307 situated at Kasbe-Sinnar, taluka Sinnar, District Nasik, was owned by Pandharinath Raghunath Gujarathi as his self-acquired property. Panuharinath had 3 sons viz., Harisha, Vishwanath and Narayan, out of whom eldest son Harisha died before Pandharinath's death, leaving behind him his widow, Saraswatibai, and daughter Tarabai. The property being a self-acquired property of Pandharinath, he gave this property to his two sons Vishwanath and Narayan by executing a Will (Vyavasthapatra) dated 26th March 1936. A partition of this property took place between Vishwanath and Narayan on 30th December 1943. In the artition, Vishwanath, the father of the plaintiff, received the suit property towards his share, Saraswatibai, widow of Harisha, filed a suit, being Regular CM) Suit No. 75 of 1937, against Vishwanath and Narayan for maintenance and in that suit a decree in the, nature of an award was passed. Under the decree, Saraswati bai received maintenance of Rs. 13/- per month and Rs. 2000/- in cash. Further, under the said decree, there was an agreement to provide accommodation to Saraswatibai for her residence during her life time. It was, however, clarified in the decree that Saraswatibai will not have any ownership right over the said residential accommodation. In pursuance of the said decree, two khans from the eastern portion of the house of Vishwanath were given to Saraswatibai. Saraswatibai died on 22nd March, 1959. After her demise, the present appellant No. 1 defendant Tarabai, the daughter of Saraswatibai, occupied these premises and was staying there. It is alleged that Saraswatibai and her daughter Tarabai were licensees of the suit property and they have no ownership rights under the decree. it is alleged that during the life time of Vishwanath, a partition took place between the two sons of Vishwanath including the present respondentplaintiff on 15th April, 1969, in which partition the suit property consisting of 2 rooms was alleged to have been allowed to the present respondent-plaintiff and thus it is alleged that he became the owner of the suit property. By registered notice dated 8th November 1971 the plaintiff called upon the defendants to deliver possession of the suit property. As there was no reply to the said notice from the defendants, the plaintiff filed the suit for possession of the suit property. The defendants filed their written statement and denied all the allegations made in the plaint.
4. It was contended in the written statement that by virtue of Hindu Succession Act, deceased Saraswatibai had become the owner of the suit property and as the appellant-defendant No. 1 is the only heir of the deceased Saraswatibai, she has inherited the suit property and thus she acquired the full title of ownership of the suit property. Further, in the alternative, it has been contended that the entire suit property was in the possession of Saraswatibai and after her demise, the appellantdefendant No. 1 became the owner of the suit property it was also contended that the suit was barred by limitation.
5. After framing the necessary issues and recording the evidence, the trial Court held that deceased Saraswatibai was merely a licensee under the decree or award in Regular Civil Suit No. 75 of 1937 and that the defendants had no right to retain the suit property. Consequently, the trial Court decreed the suit. In appeal against the said decree by the defendants, the appellate Court confirmed the judgment and & decree of the trial Court and dismissed the appeal.
6. Mr. S.G. Karandikar, learned Counsel for the appellants, has vehemently contended that both the Courts below have committed an error of law in deciding the issues in the suit without considering the settled legal position regarding the right of interest in the suit property and the right extended to a female Hindu member under the Hindu member under the Hindu Succession Act, 1956 It has been contended by Mr. Karandikar that right of maintenance was a pre-existing right of Saraswatibai and by virtue of Sectionl 4(1) of the Act, she had become the absolute owner of the suit property which she had acquired in lieu of maintenance. Therefore, the finding of the Courts below that Saraswatibai is a licensee under the decree is contrary to law and is perverse. The learned Counsel has further contended that the suit was not maintainable and it was barred by limitation under Article 65 of the Limitation Act. It has been further contended that the alleged partition deed was not adequately stamped under the Bombay Stamp Act and it was not registered under the Registration Act. Further, it has been contended that the plaintiff has no right to file the suit on the basis of the alleged partition of the suit property between two brothers during the life tine of their father Vishwanath. The learned Counsel has emphatically submitted that in fact there was no partition of the suit property and the suit property was not a coparcenary or co-ownership property of Vishwanath. Vishwanath was very much alive at the time of filing of the suit and the suit property being a separate property of Vishwanath under the Hindu Law, partition was not permissible. As no title was passed on to the plaintiff; the plaintiff had no right to file suit for possession against the appellants-defendants. Therefore, the suit is liable to be dismissed.
7. Dealing with the contentions and submissions of the learned Counsel for the appellants, the first contention of the learned Counsel for the appellants is that the Courts below have erroneously held that Saraswatibai was a licensee under the decree. The learned Counsel further submitted that the right of maintenance is a pre-existing right of a Hindu female and by virtue of the amended Hindu Succession Act, 1956, under Section 14(1), she becomes the absolute owner of the said property. Section 14(1) of the Act reads as under :-
- "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."
- In this Sub-section, property includes both movable and immovable property acquired by a female Hindu by inheritance or device, 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 presentation, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act."
- "Sub-section (1) of Section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property. Sub-section (2) is more in the nature of a proviso or exception to Sub-section (1). It except certain kinds of acquisition of property by a Hindu female from the operation of Sub-section (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of woman in Hindu Society. 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). It cannot be interpreted in a 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)..... The appellant therein claimed maintenance out of the joint family properties in the hands of the respondent who was her deceased husband's brother. The claim was decreed in favour of the appellant and in execution of the decree for maintenance, a compromise was arrived at between the parties allotting the properties in question to the appellant for her maintenance and giving her limited interest in suit properties. It is held there that since in the present case the properties in question were acquired by the appellant under the compromise in lieu of satisfaction of her right of maintenance, it was Sub-section (1) and not Sub-section (2) of Section 14 which would be applicable and hence the appellant must be deemed to have become full owner of the properties notwithstanding that the compromise prescribed a limited interest for her in the properties."
- "The liability of the father-in-law governed by the Dayabhaga law towards the widow of his son is no doubt a moral liability but that liability when transmitted to his sons on his death becomes, in their persons, a legal liability, the measure of which is restricted to the amount of the estate to which they succeed from their father."
9. As against the aforesaid contention, Mr. Rege, learned Counsel for the respondents-plaintiff, has emphatically submitted that the suit property is not a joint family property. It is a separate property of Vishwanath and Narayan and they are not under any legal obligation to provide maintenance to Saraswatibai. But after the decree in the form of an award was passed by the Civil Court, Saraswatibai was allowed to stay in the suit premises as a licensee and was also paid Rs. 13/- per month towards her maintenance. In the decree there is a declaration that Saraswatibai has no right of ownership over the suit property and the right of maintenance and stay in the suit premises existed during her life time only Mr. Rege has relied upon the decree (Exh. 28) and submitted that this Court cannot go beyond this decree. Right of full ownership cannot be extended by virtue of Section 14(1) of the Hindu Succession Act. The property in the possession of Saraswatibai is governed under Section 14(2) of the Act. Section 14(2) reads as under :
- "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."
10. In this connection, the learned Counsel has referred to a Full Bench ruling in T.A. Lakshmi Narasamba v. T. Sundaramma and others, AIR 1981 AT. 88, wherein it has been observed thus :
- "The moral obligation of a father-in-law possessed of separate or self acquired property to maintain the widowed daughter-in-law ripens into a legal obligation in the hands of persons to whom he has either bequeathed or made a gift of his property."
- "Under the Hindu law there is a moral obligation on the Father- in-Law to maintain the daughter-in-law and the heirs who inherit the property are liable, to maintain the dependents. It is the duty of the Hindu heirs to provide for the bodily and mental or spiritual needs of their immediate sad nearer ancestors to relieve them from bodily and mental discomfort and protest their souls from the consequences of sin. They should maintain the dependants of the persons of property they succeed. Merely because the property is transferred by gift or by will in favour of the heirs, the obligation is not extinct. When there is property in the hands of the heirs belonging to the deceased who had a moral duty to provide maintenance, it becomes a legal duty on the heirs. It makes no difference whether the property is received either by way of succession or by way of gift or will, the principle being common in either case........"
- "Even if a donee or devisee is a stranger, the liability to maintain does not cease. The entire background of the Hindu jurisprudence clearly indicates that the head of the family cannot dispose of property in favour of strangers in such a manner as to deprive the dependants of their maintenance. On principles of Section 39 of the T.P. Act, the status of a widowed daughter-in-law is equal to that of a widow for the purpose of receiving maintenance and her moral right to receive maintenance alters into a legal right on the demise o her father-in-law.........."
- "Keeping in view the background of the Hindu Society as it existed and also having regard to the fact that there is no difference between a moral obligation and legal obligation in so far as the head of the family is concerned, the only inference that could be drawn is that the property, even if self-acquired, was treated as trust property for maintenance of the family members including the dependants. Therefore, he transferees are affected by such charge and they would also constitute as trustees to maintain the dependants when the property is in their hands."
- "Where a Hindu wife gets lands in lieu of maintenance from her husband and she enjoys the produce therefrom, her right becomes absolute by virtue of Section 14(1) of the Act...... Section 14 is aimed at removing restrictions or limitations on the right of a female Hindu to enjoy, as a full owner, property possessed by her so, long as her possession is traceable to a lawful origin, that is to say, if she has a vestige of a title. It makes no difference whether the property is acquired by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or by her own skill or exertion or by purchase or by prescription or in any other manner whatsoever. The explanation expressly refers to property acquired in lieu of maintenance and the widow is not required to establish any further title before she can claim full ownership under Section 14(1) in respect of property given to her and possessed by her in lieu maintenance. The very right to receive maintenance is sufficient title to enable the ripening of possession into full ownership if she is in possession of the property in lieu of maintenance, Sub-section (2) of Section 14 is in the nature of an exemption, to Section 14(1) and provides for a situation where property is acquired by a female Hindu under a written instrument or a decree of Court and not where such acquisition is traceable to any antecedent right."
11. On the Other hand, Mr. Rege, learned Counsel for the respondents, has vehemently submitted that the benefit of Sub-section (1) of Section 14 of the Act is available to a Hindu female provided she had a limited riot of ownership prior to the Act came into force. According to him, Saraswatibas had no right to limited ownership and she was merely a licensee. This argument is untenable in view of the observations rendered by the Supreme Court in Bai Vajia v. Thakorbhai Chelabhai and others, AIR 1979 SC 993, wherein it has been observed thus :
- "Ownership in the fullest sense is a sum-total of all the rights which may possibly flow from title to property, while limited ownership in its very nature must be a bundle of eights constituting in their totality not full ownership but something less. When a widow holds the property for her enjoyment as long as she lives, nobody is entitled to deprived list of or to steal with the, property in any manner to her detriment. The property is for the time being beneficially vested in her and she has the occupation, control and usufruct of it to the exclusion of all others. Such a relationship to property fails squarely within the meaning of the expression 'limited owner' as used in Sub-section (1) of Section 14, of the Act."
12. As an alternate submission, the learned Counsel for the appellants has submitted that the suit is barred by limitation under Article 65 of the Limitation ACt, and the appellants-defendants have become the owners by adverse possession.
13. Article 65(b) reads as under :
- "For possession of immovable property or any interest therein based on title (b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies."
14. The learned Counsel for the appellants then submitted that the plaintiffs/respondents have no right to file the suit because no title is invested in them by partition or by a will. It has been submitted that at the time of filing of the present suit. Vishwanath was alive. The suit property belonged to Vishwanath as his separate property and hence partition is not permissible during his life time. The suit is based on title of ownership of the suit property. It is alleged that there was partition of the property between the plaintiff's brothers. Though a support of his claim, the plaintiff has relied en the partition decal, it was not produced before the trial Court but a carbon copy of the so-called partition deed has been produced and that has been admitted in evidence by both the Court below. It is at Exh. 48. The learned Counsel emphatically submitted that such document is not admissible in evidence. In support of his contention, the learned Counsel has relied on the following authorities viz.,
- (1) AIR 1948 PC 114; (2) 1977 Mh L J, 68 = AIR 1976 Bombay 264;(3) 83 MLJ 339; and (4) AIR 1946 PC 24.
15. Learned Counsel for the appellants further submitted that the so- called partition deed was not adequately stamped under the Bombay Stamp Act nor was it registered under the Registration, in support of his contention, the learned Counsel has relief on the following authorities viz.,
- (1) AIR 1946 PC 51;
- (2) AIR 1971 SC 1070;
- (3) AIR 1974 Punjab 130;
- (4) AIR 1972 A.P. 273; and
- (5) AIR. 1968; SC 1299.
16. Having regard to the facts and circumstances of the case, the aforesaid argument of Mr. Rege is not sustainable in view of the clear legal position as observed above. Therefore, for filing suit for possession, the plaintiff first of all has to rove his title over the suit property. In the instant case, the plaintiff has no legal title over the suit property. The plaintiff merely relied on the so-called partition deed (Exh. 48) and the mutation entry and some receipts in respect of tax paid to the municipality. However, whatever evidence produced on behalf of the plaintiff which the Courts below relied on, is contrary to law. As observed above, the suit property is a separate property of Vishwanath and it is not a coparcenary property where the plaintiff is entitled for partition. It has been observed in the ruling in C.N. Arunachala Mudaliar v. A. Muruganatha Mudaliar and another, AIR 1953 SC 495; thus :
- "The son can assert an equal right with the father only when the grandfather's property has devolved upon his father and has become ancestral property in his hands. The property of the grandfather can normally vest in the father as ancestral property if and when the father inherits such property on the death of the grandfather or receives it, by partition made by the grandfather himself during his life-time. On both these occasions the grand- father's property comes to the father by virtue of the latter's legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands."
- The learned Counsel for the appellants has also relied on the commentary on Hindu Law under heading 'Property Liable to Partition' which reads thus :
- The only property that can be divided on a partition is coparcenary property. Separate property cannot be the subject of partition nor can property which the custorn descends to one member of the family to the execlusion of other members."
17. In view of the above observations, it need not be necessary to deal with the other contentions raised by learned counsel for the appellants.
18. in the result, the appeal is allowed. The judgments and decree passed by both the Court below are sit aside and the suit is dismissed. No order as to costs.
19. Certified copy expedited.
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