Bombay High Court
Kailash Prabhakar Shinde vs Indubai Kailas Shinde And Another on 11 February, 2025
2025:BHC-AUG:4491
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 813 OF 2013
Kailas s/o. Prabhakar Shinde,
Age 32 years, occ. Agril,
R/o. Gikulwadi (Kharpudi)
Tq. and Dist. Jalna.
.. APPELLANT
VERSUS
1. Indubai w/o. Kailas Shinde,
Age 28 years Occ. Household,
R/o. Nikalak (Akola) Tq. Badnapur,
Dist. Jalna.
2. Bapurshabe s/o. Nivrutirao Barkad,
Age 42 years, Occ. Service,
R/o. Police Quarters, Near Police Complex,
Bus stand Road, New Jalna, Dist. Jalna
.. RESPONDENTS.
Mr. B.R. Kedar, Advocate for applicants
Appeal abated against respondent No.1.
Mr. N.V. Gaware, alongwith Mr. S.N. Gaikwad, Advocate for respondent
No.2.
CORAM : S.G. CHAPALGAONKAR, J.
RESERVED ON : 24.01.2025
PRONOUNCED ON : 11.02.2025
J U D G M E N T :
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The appellant/original plaintiff impugns the judgment and
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decree dated 18.07.2013 passed by District Judge, Jalna in Regular Civil
Appeal no. 205 of 2009, thereby upholding the judgment and decree
dated 30.11.2009 passed by Civil Judge (S.D.) Jalna, in Special Civil Suit
No. 78 of 2007, thereby dismissing the suit of the appellant seeking
cancellation of sale deed, declaration of ownership and perpetual
injunction.
2. For sake of convenience, parties are referred as per their
original status in the suit.
3. The Appellant/plaintiff instituted Special Civil Suit No. 78 of
2007 contending that defendant No.1 Indubai was his legally wedded
wife. After solemnization of marriage on 10.5.1997, she happily resided
with him for about 8 years. Thereafter, some dispute erupted between
them eventually, she started residing with her parents. She instituted
proceeding for grant of maintenance under Section 125 of Cr.P.C. against
him. The dispute was amicably resolved by intervention of friends.
Defendant No.1 resumed matrimonial life with him. In turn, he executed
a registered management deed dated 9.3.2006 in her favour giving her
right to manage suit property bearing Gat No. 281, admeasuring 1
Hectare 20 R situated at Kapurwadi. A lifetime interest was created in
her favour with restriction from creating third party interest. However
within a short span, defendant again left matrimonial home. Thereafter,
she suffered mental disorder and was under treatment of a psychiatrist at
Aurangabad. Taking disadvantage of her mental health, her brother, who
was serving in Police Department, made her to execute a sale deed dated
4.6.2007 in respect of suit property in favour of defendant No.2.
According to plaintiff, sale deed dated 4.6.2007 is invalid as Defendant
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No.1 had neither authority to transfer the suit property nor was she in fit
state of mind to make valid disposition.
4. Defendants resisted suit contending that suit property was
handed over to defendant No.1 under Management deed in lieu of
maintenance. She was in possession of suit property as exclusive owner.
Plaintiff's ill-treatment made her to leave the matrimonial home. She had
no source of income to maintain herself. Therefore, she sold out the
property to defendant No.2 for valuable consideration. Defendant No.2
has acquired ownership and possession in pursuance to the sale deed.
5. The trial court framed issues based on pleadings of the
parties and after hearing them, concluded that the suit property was
given in lieu of maintenance to the defendant No.1. Consequently, she
had acquired absolute ownership over the suit property and disposition
of property by her in favour of defendant No.2 is valid.
6. Plaintiff assailed decision of trial court in appeal before the
District Judge, Jalna, who concurred with the judgment and decree
passed by trial court, eventually dismissed the appeal.
7. Mr. B.R. Kedar, learned advocate appearing for the appellant
submits that judgments and decrees passed by the courts below are
perverse, based on misreading/misinterpretation of the Management
Deed dated 9.3.2006. By inviting attention of this court to the contents
of the management deed, Mr. Kedar would submit that a restricted right
was created in favour of defendant No.1 to enjoy the ownership and
possession of the property for maintenance with further rider to not to
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create third party interest in the property. He would submit that suit
property was to revert back to plaintiff and his legal heirs after
defendant's lifetime enjoyment. Defendant No.1 could have secured
absolute ownership only if any instance of ill-treatment towards
defendant No.1 erupts. According to Mr. Kedar, there is nothing on
record to show that condition precedent for conferment of ownership in
favour of defendant No.1 has been ever complied. In support of his
contentions, he relies upon observations of Supreme Court in the case of
Gaddam Ramakrishana Reddi and others vs. Gaddam Rami Reddi 2011
AIR (SC) 179, so also judgment in the matter Shivdeo Kaur vs. R.S.
Grewal 2013 (4) SCC 636.
8. Per contra, Mr. Nitin Gaware learned Advocate appearing for
the respondent No.2 ( Purchaser) would invite attention of this court to
Section 14 of the Hindu Succession Act to contend that suit property was
to be possessed by defendant No.1 in lieu of maintenance. Life interest
was created in her favour. Plaintiff being husband was under obligation
to maintain his wife. The Management Deed conferred existing right of
maintenance in favour of defendant wife. Eventually, she was put into
possession acknowledging her absolute right. She transferred suit
property in favour of defendant No.2 to satisfy her needs since plaintiff
failed to maintain her. According to him, condition restricting unfettered
right of defendant No.1 to enjoy property will have to be ignored in view
of law declared by Constitution Bench of the Supreme Court in the case
of V. Tulsamma and others Vs. Shesha Reddi (dead) AIR 1976 SC 2198.
He also places his reliance on the recent judgment of the Supreme Court
in the case or Kallakuri Pattabhiramaswamy (Dead) through LRs vs.
Kallakuri Kamaraju and others (Civil Apeal No. 5389 of 2012)
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He would submit that the legal position, as espoused in the
case of V. Tulsamma (supra) still holds field. Consequently, defendant
no.1 had absolute right over the suit property and disposition made by
her in favour of defendant No.2 under registered sale deed dated
4.6.2007 was legal and valid.
9. I have considered submissions advanced by learned
advocates appearing for respective parties, Admittedly, defendant No.1
is legally wedded wife of plaintiff. Plaintiff executed registered Deed of
Management dated 9.3.2006, gist of which connotes thus :-
"The suit land is transferred in favour of defendant wife
without consideration for the purpose of maintenance. The
wife is entitled to take produce out of land and utilize the
same for her maintenance. The land is permanently given to
and possession is handed over to defendant wife. The wife
shall not have right to transfer the land or create third party
interest. Wife shall be entitled to enjoy the property as
owner during her lifetime. Thereafter, ownership of land
would be reverted back to plaintiff and his legal heirs and no
one else would have any right on it. Wife shall be entitled to
enjoy the property as owner without any interruption from
the plaintiff husband. The plaintiff is taking wife for
cohabitation. In case he fails to maintain good behaviour or
causes ill-treatment to wife, the transfer of land shall be
treated as absolute. The defendant wife shall be entitle to
mutate her name in the revenue record of the suit property."
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10. In the light of aforesaid stipulations, question that falls for
consideration before this Court, is as to whether defendant had acquired
absolute right in the suit property with right of disposition or create third
party interest therein.
11. The legal position on the aforesaid aspect has been
crystallized in the case of V. Tulsamma and others Vs. Shesha Reddi
(supra). Para.62 reads thus :-
"We would now like to summarise the legal conclusions which we
have reached after an exhaustive considerations of the authorities
mentioned above; on the question of law involved in this appeal
as to the interpretation of s. 14(1) and (2) of the Act of 1956.
These conclusions may be stated thus:
(1) 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 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 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.
(2) Section 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 1956 Act and promote the socio-economic ends, sought
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to be achieved by this long needed legislation. (3) Sub-section
(2) of s. 14 is in the nature of a 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.
(4) Sub-section (2) of section14 applies to instruments, decrees,
awards, gifts etc. which create independent and new titles in
favour of the females for the first time and has no application
where the instrument concerned merely seeks to confirm,
endorse, declare or recognise preexisting rights. In such cases a
restricted estate in favour of a female is legally permissible and s.
14(1) will not operate in this sphere. Where, however, an
instrument merely de- clares 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 en-
larged into. an absolute one by force of s. 14(1) and the
restrictions placed, if any, under the document would have to be
ignored. Thus where a property is allotted or trans- ferred to a
female in lieu of maintenance or a share at partition, the
instrument is taken out of the ambit of sub- s. (2) and would be
governed by s. 14(1) despite any re- strictions placed on the
powers of the transferee. (5) The use of express 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-s. (2) inapplicable to these catego-
ries which have been expressly excepted from the operation of
sub-s. (2).
(6) The words "possessed by" used by the Legislature in s.
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
force of s. 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 with- out any right or title.
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(7) That the words "restricted estate" used in s. 4(2) are wider
than limited interest as indicated in s. 14(1) and they include
not only limited interest, but also. any other kind of limitation
that may be placed on the transferee.
12. In yet another judgment, in case of Kallakuri (supra) in
reference to the judgment in case of Magatmal Vs. Punni Devi (1995) 6
SCC 88, the Supreme Court observed in para.10 as under :-
"What flows from the above is that the Hindu Women's right to
maintenance is not by virtue of statute, but is found in Shastric
Hindu law; maintenance has to be proper, appropriate and
adequate, giving the woman so maintained the ability to continue
to live the life, similar to what she once lived; and that 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".
13. In both the aforesaid cases, the Honourable Supreme Court
held that in case, pre-existing right is conferred upon the woman, she
would acquire an absolute right under Section 14(1) of the Hindu
Succession Act. Section 14(2) would have no application in such cases.
Further, restriction imposed upon the right to enjoy the property as full
owner under any instrument or decree creating right in her favour will
have to be ignored. The restriction contemplated under sub-clause 2 of
section 14 would have no operation where the pre-existing right, such as,
claim of maintenance or partition or share to which the family member is
entitled has been created, the limited interest would automatically be
enlarged into absolute one by force of Section 14(1). The restriction if
any placed under document would have to be ignored.
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14. In present case, undisputedly, the limited right was created
in favour of defendant No.1 in lieu of maintenance. Since the right to
maintenance is recognized as pre-existing right, limited right created in
favour of defendant No.1 under management deed would automatically
get enlarged to absolute right by operation of Sub-Section (1) of Section
14 of the Hindu Succession Act.
15. Mr. Kedar, learned advocate appearing for the appellant
heavily relied on judgment of Supreme Court in case of Gaddam
Sheshamma (supra). In that case, one G. Kela Reddi had executed
registered deed of gift giving limited right in his share of property to his
wife Gaddam Sheshamma without right of alienation and management
was vested in G. Rami Reddi. In the context of aforesaid facts, the
question that arose for consideration, whether, Gaddam Sheshamma had
absolute right in the property. The Court held that the right created in
favour of Sheshamma was not in lieu of her maintenance, as she was
already managing the property in question and it was the Donee's desire
that suit property should ultimately go to his son Romi Reddi and
therefore, right of Sheshamma was held to be governed by Sub-Section
(2) of Section 14 of the Hindu Succession Act. Therefore, the law laid
down in the case of Gaddam would not assist the appellant to advance
his cause. Similarly, another judgment in case of Shivdeo Kaur(supra),
Honourable Supreme Court found that if the properties acquired by
Hindu female by will or gift giving her only life interest that would
remain same even after commencement of the Act of 1956. In that case,
it is held that disposition of the property in favour of daughter under the
will would not constitute pre-existing right.
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16. Before parting, it is desirable to take note of the recent
judgment of the Supreme Court in the case of Tejbhan (D) through LRS
and others vs. Ram Kishan through LRs and others (2024) SCC online
SC 3661, wherein, the Bench of the Supreme Court felt it necessary to
make reference to the larger Bench for re-considering principles laid
down in various judgments of the Supreme Court for restating the law on
interplay between sub-Section (1) and (2) of Section 14 of the Hindu
Succession Act. However, in that case, the issue involved pertains to
right crated in favour of wife under a will. The life interest in favour of
wife in lieu of maintenance is not doubted and still governed by
exposition in V. Tulsamma (supra).
17. In result, no substantial question of law arises in this appeal.
Appeal sans merit, hence dismissed. Civil Application, if any, stands
disposed of.
[S.G. CHAPALGAONKAR, J]
grt/-
