Smt. Chhabubai Balwantrao Shinde ... vs Gulabrao Balwantrao Shinde And ...
2001 Latest Caselaw 69 Bom

JUDGMENT

S. Radhakrishnan, J.

1. The brief background in this case is that one Gulabrao Balwantrao Shinde along with his two sisters viz. Sau. Prabhavati and Sau. Nalinibai had filed a suit being Regular Civil Suit No. 199 of 1981 before the 6th Joint Civil Judge, Junior Division at Jalgaon against Smt. Chhabubai Balwantrao Shinde being step-mother of the plaintiffs. The plaintiffs are the children of one Balwantrao Bhagwantrao Shinde out of his first marriage whereas the defendant No. 1 Smt. Chhabubai Balwantrao is the second wife of the said Balwantrao. The said Balwantrao died on 27th June, 1954. The said Balwantrao had married Smt. Chhabubai after the death of his first wife and out of the second marriage with Smt. Chhabubai Defendants Nos. 2, 3, 4 and 5 were born viz. four daughters Lilabai, Ranjanabai, Padmabai and Pushpabai. The case of the plaintiffs before the trial Court was that agricultural suit land Gat No. 441 admeasuring 2 Hec. 27R. situated at village Tarsod, Tal Jalgaon and in addition two houses being Grampanchayat House Nos. 2 and 26 at village Tarsod was the suit property wherein the plaintiffs had contended that they had half share and the suit land consisting of the aforesaid agricultural land and both the houses should be partitioned and half share should be granted to the plaintiffs. The trial Court after appreciating the evidence on record came to a conclusion that both the Grampanchayat houses at Tarsod were in possession of the appellants herein and also the said suit land at Gat No. 441 admeasuring 2 Hec. 27 R. was also in possession of the appellants and the said Chhabubai Balwantrao Shinde being the second wife was actually cultivating the said land. It appears that the plaintiff had tried to make out a case that he was sending money to the said Smt. Chhabubai for the purpose of cultivating the land. The trial Court came to a conclusion that there is no proof that the plaintiff was in fact sending any money for cultivation to Smt. Chhabubai. The trial Court has clearly given a finding that it is an admitted fact that the said Smt. Chhabubai was in possession of the said agricultural land and was cultivating on the said suit land. It is very clearly observed in para 6 of the said judgment, the suit land at Gat No. 441 as well as both the Grampanchayat houses were in possession of the defendant viz. Smt. Chhabubai Shinde. The plaintiffs case before the trial Court was that only half of the said land and both the houses was given to Smt. Chhabubai towards maintenance. On the contrary, the defendant-the appellant herein had contended that the entire agricultural land at Gat No. 441 as well as both Grampanchayat houses in the said village Tarsod were the exclusive property of the defendants and they had full rights over the same and that they were the absolute owners.

2. Finally the trial Court, after appreciating the evidence on record gave a declaration that plaintiff No. 1 Gulabrao Balwantrao Shinde had 9/12th shares in the said suit property and plaintiff Nos. 2 and 3 had 1/24th share in the said suit property. The trial Court had also directed the Collector, Jalgaon to partition the said property and to hand over and put in possession the plaintiffs Nos. 1, 2 and 3 in their respective share in the suit land. That is to say the trial Court came to a conclusion that all the plaintiffs put together were entitled to 11/24th share and the defendants were entitled to 13/24th share of the suit property.

3. Aggrieved thereby the present appellants had filed Civil Appeal before the Court of Additional District Judge, Jalgaon being Civil Appeal No. 67 of 1987. The learned lower Appellate Court has referred to Section 6 of the Hindu Succession Act and has held that Chhabubai can never get any title with regard to the said property and at the most the said Smt. Chhabubai can only have a right of maintenance with regard to the property of Balwantrao and that she cannot claim any exclusive right and title in the said suit property. The lower Appellate Court has given a finding that Smt. Chhabubai is only entitled to maintenance till she survives and she gets no exclusive title to the suit land. Accordingly the appeal was dismissed and strangely the judgment of the trial Court was modified to the extent that the plaintiff No. 1 Gulabrao as an exclusive owner of the said agricultural land Gat No. 441 as well as house Nos. 2 and 26 situated at village Tarsod, Tal. and Dist. Jalgaon. The said order further directs that the said Chhabubai to hand over possession of the said property to Respondent No. 1-Gulabrao. By that order the learned lower Appellate Court has held that Chhabubai can only have a right of residence as well as right of maintenance and had directed Gulabrao to maintain Chhabubai and allowed her to reside in the suit house, till she survives. In this context it is pertinent to note that after the suit was decreed by the trial Court holding that the plaintiffs were entitled to 11/24th share of the suit land the respondents herein had never filed any cross objection in the aforesaid appeal filed before the lower Appellate Court viz. Civil Appeal No. 67 of 1997 claiming exclusive ownership of the said agricultural land Gat No. 441 admeasuring 2 Hec. and 26R. at village Tarsod, Tal. and District Jalgaon. It must be stated herein in fairness that Shri Sabnis, the learned Counsel for the respondents very fairly stated that his clients had never made any claim for the entire property being the suit land and the grampanchayat houses and also that no such argument was advanced that they were entitled to the entire property.

4. Aggrieved by the judgment of the lower Appellate Court the present appellants viz. Smt. Chhabubai and her four daughters have filed this Second Appeal raising following two substantial questions of law :

a) Balwantrao the husband of Chhabubai (appellant herein Origl. deft.No. 1) had died in the year 1954 before the Hindu Succession Act had come in to force. The appellant No. 1 was in possession of the suit property even before the Hindu Succession Act come into the force but after the Hindu Succession Act the original defendant No. 1 became the absolute owner of the suit property which was in her actual possession, as per Section 14 of the Hindu Succession Act. Even if it is taken for granted that after the death of Balwantrao in 1954, original defendant No. 1 come in possession of the suit property as an alienated owner, her ownership rights had become absolute after the Hindu Succession Act had come into force. Hence the respondents are not entitled to claim any share in the suit property?

b) Did the lower appellate Court have jurisdiction to give relief other than relief sought by the plaintiff because the plaintiff had filed a suit for partition i.e. for only half of portion, of the suit property, therefore, could the District Court have passed an order that plaintiff became the absolute owner of the entire suit property?

5. Shri Raghuvanshi, the learned Counsel for the appellants contended that both the lower Courts have in categorical terms stated that the appellant No. 1 was in possession of the suit land i.e. agricultural land being Gat No. 441 admeasuring 2 Hec. and 27 R. at village Tarsod as well as two Grampanchayat houses Nos. 2 and 26 at village Tarsod. He further contended that the same was given to Smt. Chhabubai by way of maintenance. The trial Court had rejected the claim of the appellant that the land was given to her husband Balwantrao as an exclusive owner which contention was rejected by both the lower Courts. On the contrary, both the lower Courts came to a conclusion that it is an admitted position that the said suit land viz. agricultural land as well as two houses were given to Smt. Chhabubai towards her maintenance after the death of her husband on 27th June, 1954.

6. Shri Raghuvanshi, the learned Counsel for the appellants brought to my notice regarding Section 14(1) of the Hindu Succession Act, 1956 and the explanation thereto, which read as under :--

"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."

Therefore, Shri Raghuvanshi, the learned Counsel for the appellants contends that the appellant No. 1 has been in possession of the suit land towards her maintenance since the death of her husband on 27th June, 1954, automatically as soon as the provisions of Hindu Succession Act, 1956 came into force on 17th June, 1956 she became the absolute owner of the said suit property.

7. In that behalf Shri Raghuvanshi relied on a judgment of the Apex Court in Mahesh Chand Sharma v. Smt. Raj Kumari Sharma, . The Hon'ble Supreme Court in para 30, while interpreting Section 14(1) of Hindu Succession Act, has clearly held that even if there were to be a contrary comprimise, the statutory provisions in Section 14(1) of Hindu Succession Act will apply inasmuch as the statutory provisions supersede the recitals in the Will and held that the right ripened into an absolute estate. Recently the Apex Court again in the case of Raghubar Singh v. Gulab Singh , while interpreting Section 14(1) has held that the limited interest automatically got enlarged into an absolute one in view of Section 14(1) of the Hindu Succession Act. The relevant observations are found in paragraphs 13 and 14 (of SRJ) :(Paras 22 to 25 of AIR) which read as under:--

"13. Thus we find that there is enough authority for the proposition that the right to maintenance of a Hindu female is a preexisting right, which existed in the Hindu Law long before the Act of 1937 or the Act of 1946 came into force and is not a creation of those statutes, which only recognised that position. In the words of Fazal Ali, J. in Tulasamma's case (AIR 1977 SC 1944 at pp. 1977-78) (supra) :

"The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace 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 Yajanvalkya 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 if he or the family has property, the female has the legal right to be maintained therefrom. If a 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 pre-existing rights."

Accordingly, we hold that the right to maintenance of a Hindu female flows from the social and temporal relationship between the husband and the wife and that right in the case of widow is "a pre-existing right", which existed under the Shastric Hindu Law long before the passing of the 1937 or the 1946 Acts. Those acts merely recongnised the position as was existing under the Shastric Hindu Law and gave it a "statutory" backing. Where a Hindu widow is in possession of the property of her husband, she has a right to be maintained out of it and she is entitled to retain the possession of that property in lieu of her right to maintenance.

"14. Explaining the meaning of the expression "possessed" as used by the legislature in Section 14(1) of the 1956 Act in Tulasamma's case (AIR 1977 SC 1944 at p. 1978) (supra) this Court held:

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 of the 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 the force of Section 14(1) she would get absolute interest in the property. It is equally well settled 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.

It is by force of Section 14(1) of the Act, that the widow's limited interest gets automatically enlarged into an absolute right notwithstanding any restriction placed under the document or the instrument. So far as Sub-section (2) of Section 14 is concerned, it applies to instruments, decrees, awards, gifts, etc., which create an independent or a new title in favour of the female for the first time. It has no application to cases where the instrument/document either declares or recognise or confirms her share in the property or her "pre-existing right to maintenance" out of that property. As held in Tulasamma's case (supra), 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) of the Act."

8. In fact, if one were to read Section 14(1) along with the explanation, it is explicitly clear that if any property is possessed by a female Hindu, before or after the commencement of Hindu Succession Act, even in lieu of maintenance, such a property shall be held by her as a full owner thereof and not as a limited owner.

9. Under these circumstances it is very clear that as far as the first substantial question of law is concerned, it has to be answered that the appellant No. 1 becomes the absolute owner of the suit land in view of the unambiguous and clear statutory provisions under Section 14(1) read with the explanation of the Hindu Succession Act, 1956.

10. The second substantial question of law raised by the learned Counsel for the appellants in the second Appeal whether the lower Appellate Court could have any jurisdiction to grant any relief other than relief sought by the plaintiffs. In fact, on this issue of substantial question of law, Shri Sabnis, the learned Counsel for the respondents himself admits that his clients cannot claim more than half share in the suit land and as such ex facie the grant of entire suit land in favour of respondent No. 1 was totally unsustainable in law. Therefore, I answer the second substantial question of law to the effect that the lower Appellate Court could not have at all granted such a relief.

11. Under the aforesaid facts and circumstances, the judgment and order of the lower Appellate Court dated 3rd April, 1997 in Civil Appeal No. 67 of 1987as well as the judgment and order of the trial Court dated 24th July 1986 in Regular Civil Suit No. 199 of 1981 is hereby quashed and set aside.

12. In view of the very clear provisions of Section 14(1) read with explanation thereto of the Hindu Succession Act, 1956, appellant No. 1 is declared as the absolute owner of the entire suit property. Second Appeal is accordingly allowed and decreed. There shall however be no order as to costs.