Telangana High Court

M/S. Victory Constructions., ... vs C. Pradeep Kumar 5 Ors, Hyderabad. on 10 February, 2023

Bench: P Naveen Rao, J Sreenivas Rao

             HIGH COURT FOR THE STATE OF TELANGANA

                          CCCA No.168 OF 2006
Between

M/s. Victory Constructions rep.
by its Managing Partners (a regd.
Partnership firm) C. Mohan Reddy and
N. Surender Rao, Flat No.201, Korutla Flats,
MCH No.3-6-393/1, Street No.3,
Himyathnagar, Hyderabad.

                                                  .... Appellant/Plaintiff
                                    AND

A.Shyamala Devi (died) as per Lrs. R4 to R5
C. Pradeep Kumar, S/o. C. Sriramulu,
Aged about 46 years, Occ : Govt. Servant
R/o. 4-1-1229/1, Boggulkunta, Hyderabad
And 4 others

                                             ... Respondents/Defendants

DATE OF JUDGMENT PRONOUNCED: 10.02.2023

SUBMITTED FOR APPROVAL:

HONOURABLE SRI JUSTICE P. NAVEEN RAO AND HONOURABLE SRI JUSTICE J. SREENIVAS RAO

1. Whether Reporters of Local newspapers Yes/No may be allowed to see the judgment?


2.   Whether the copies of judgment may be                      Yes/No
     marked to Law Reporters/Journals


3.   Whether Their Lordships wish to                            Yes/No
     see the fair copy of the judgment?

                                                               PNR, J & JSR, J
                                                          CCCA.No.168 OF 2006




          * HONOURABLE SRI JUSTICE P. NAVEEN RAO
                           AND
          HONOURABLE SRI JUSTICE J. SREENIVAS RAO


                          + CCCA No.168 of 2006

                   % DATED 10TH FEBRUARY, 2023

Between :

# M/s. Victory Constructions rep. by its Managing Partners (a regd. Partnership firm) C. Mohan Reddy and N. Surender Rao, Flat No.201, Korutla Flats, MCH No.3-6-393/1, Street No.3, Himyathnagar, Hyderabad.

...Appellant And $ A.Shyamala Devi (died) as per Lrs. R4 to R5 C. Pradeep Kumar, S/o. C. Sriramulu, Aged about 46 years, Occ : Govt. Servant R/o. 4-1-1229/1, Boggulkunta, Hyderabad And 4 others

...Respondents <Gist:

>Head Note:

! Counsel for the petitioner : Sri V. Hariharan

^Counsel for Respondents : Sri S. Ashok Anand Kumar - R2 Ms. Prabha Prasad, rep.

VSR Avadhani - R6

? CASES REFERRED:

1. 2004 (1) SCC 252

2. 2019 (2) SCC 241

3. AIR 2014 Cal 192

4. AIR 1977 SC 1944

5. (2004) 9 SCC 302

6. (2022) 4 SCC 274

7. (2019) 10 SCC 259

8. (1964) 1 SCR 1 SCR 980 =AIR 1963 SC 1516

9. 1995 (3) SCC 147

PNR, J & JSR, J CCCA.No.168 OF 2006

HONOURABLE SRI JUSTICE P. NAVEEN RAO AND HONOURABLE SRI JUSTICE J. SREENIVAS RAO.

CCCA.No. 168 OF 2006.

Date: 10.02.2023

Between

M/s. Victory Constructions rep.

by its Managing Partners (a regd.

Partnership firm) C. Mohan Reddy and N. Surender Rao, Flat No.201, Korutla Flats, MCH No.3-6-393/1, Street No.3, Himyathnagar, Hyderabad.

.... Appellant/Plaintiff AND

A.Shyamala Devi (died) as per Lrs. R4 to R5 C. Pradeep Kumar, S/o. C. Sriramulu, Aged about 46 years, Occ : Govt. Servant R/o. 4-1-1229/1, Boggulkunta, Hyderabad And 4 others

... Respondents/Defendants

The Court made the following:

PNR, J & JSR, J CCCA.No.168 OF 2006

HONOURABLE SRI JUSTICE P. NAVEEN RAO AND HONOURABLE SRI JUSTICE J. SREENIVAS RAO.

CCCA.No. 168 OF 2006.

J U D G M E N T:(Perthe Hon'ble Sri Justice J. Sreenivas Rao)

Challenging the judgment and decree dated 20-01-2006

passed in O.S.No.615 of 2000 by the XIV Additional Chief

Judge, City Civil Court, Hyderabad, dismissing the suit filed by

the plaintiff seeking the relief of specific performance of

development agreement dated 05.02.1997.The plaintiff filed this

appeal, under Section 96 of the Code of Civil Procedure 1908.

2. For the sake of convenience, hereinafter the parties will be

referred to as "plaintiff" and "defendants", as they were arrayed

before the trial court.

3. Originally, plaintiff has filed O.S.No.615 of 2000against

defendant No.1 for seeking the following reliefs:

a) To pass a decree for a specific performance of the development agreement dated 05.02.1997 by putting the plaintiff in possession to enable the plaintiff to proceed with the development of complex.

b) To direct the defendant to vacate the tenant premises and settle the dispute if any with third parties and hand over vacant and peaceful possession of the property.

c) To direct the defendant to execute and register such deeds or documents in favour of the plaintiff or their nominees for the share of interest in land to the extent of 60% under the Development agreement dated 05.02.1997;

d) to grant perpetual injunction restraining defendant her men, servants and all those claiming under or thrown her from alienating or in any way encumbering or obstructing plaintiff's developmental activities on the plaint schedule property and towards the costs of the suit.

PNR, J & JSR, J CCCA.No.168 OF 2006

The children of the sister of defendant No.1, who are defendant

No's.2 and 3 came on record claiming to have their vested

remainder in the suit schedule property and alleging that the

defendant No.1 is only having life interest. During pendency of

the suit, defendant No.1 died issueless, therefore her brother

and sister were brought on record as defendant No's.4 and 5

being the legal representatives.

4. In the said suit the plaintiff averred that plaintiff is a

registered firm engaged in the business of development of

property, building of complexes etc.Defendant No.1 is the

absolute owner and possessor of the property admeasuring 930

sq.yds., bearing Municipal No.4-1-1239/3 and a portion of 4-1-

1229 situated at Boggulakunta. She acquired the suit schedule

property under a settlement deed dated 26.02.1952 executed by

her father late Y. Satyanarayana. Thereafter, defendant No.1

alongwith her son, Dinesh Kumar alienated the suit schedule

property in favour of "Ramakrishna Mutt" under a document

dated 11.02.1974. Later, "Ramakrishna Mutt" released their

claim by executing document dated 08.07.1994 in favour of

defendant No.1. The defendant No.1 offered the suit schedule

PNR, J & JSR, J CCCA.No.168 OF 2006

property to plaintiff for development, representing that she is to

be the only legal heir after the death of her son.

4.1 On 05.02.1993 plaintiff and defendant No.1 have

entered into development agreement. As per the agreement,

the plaintiff would construct a commercial complex at their cost

after obtaining due permission from Municipal Corporation of

Hyderabad and that plaintiff was entitled to retain 60% of the

constructed area and the defendant No.1 is entitled to the

remaining constructed area. Construction should be completed

within 18 months with a further extension of six months. There

were two tenants in two portions of the building at the time of

the agreement and the defendant No.1 agreed to settle the issue

and represented that the tenants would vacate and portion of

the building would be handed over to plaintiff soon after they

vacate the building. As per the terms of the agreement, plaintiff

paid a sum of Rs.51,000/- on 21.09.1997 and Rs.1,49,000/- on

05.02.1997 respectively (in all Rs.2,00,000/-) as security

deposit. After completion of the work, the amount has to be

returned without interest. The agreement is irrevocable.

Plaintiff paid a sum of Rs.95,925/- towards the fee payable to

the Municipal Corporation of Hyderabad on 07.08.1997 but the

members of the defendant's family raised objections for

sanctioning plan. The tenants did not vacate the

PNR, J & JSR, J CCCA.No.168 OF 2006

premises,moreover one of the tenantshas been in residing in a

foreign country for the last two years. Plaintiff has always been

ready and willing to perform his part of contract. The execution

of the construction came to a standstill because of the

defendants.

4.2 The learned counsel for the defendants gave a

publication in daily newspaper dated 04.08.2000 that the

development agreement dated 05.02.1997 stands cancelled and

that the plaintiff has obtained signature of the defendant on two

blank stamp papers. On 05.08.2000 the plaintiff got issued a

legal notice. On 25.08.2000 the defendants gave a reply through

her counsel. The defendant has no right to cancel the

agreement. Hence, the present suit is filed for specific

performance of the development agreement dated 05.02.1997

and prayed to grant consequential reliefs of directing the

defendant No.1 to evict the tenants from the suit schedule

premises, deliver possession of the same, execute documents in

their favour or nominees for their 60% share and also for

perpetual injunction against the defendant No.1 from alienating

the suit schedule property.

5. Defendant No.1 filed her written statement, wherein it was

admitted by defendant No.1, who is said to have executed

PNR, J & JSR, J CCCA.No.168 OF 2006

agreement in favour of the plaintiff contending that

thedefendant No.1 is not aware as to whether the plaintiff is a

registered firm and whether Sri C. Mohan Reddy is its Managing

Partner. The suit is bad for want of proper registration, as

required under the Indian Partnership Act. That defendant

No.1 is the absolute owner of suit schedule property having

acquired the same by virtue of settlement deed dated

26.02.1963 executed by her father and a registered release deed

dated 08.07.1994 executed by the 'Ramakrishna Mutt' after the

death of her son Dinesh Kumar on 16.08.1884. Plaintiff paid

Rs.2, 00,000/- to the defendant No.1 and undertook to

construct the complex after being fully satisfied with the title

and possession of the defendant No.1. Plaintiff took absolute

responsibility for construction of the commercial complex at

their cost within a period of 18 months from the date of delivery

of possession of the property and it further provides that the

plaintiff will not rescind from the contract on the ground of

defect in title. Defendant No.1 had performed her obligation by

delivering the title deeds relating to the suit schedule property

and also the legal opinion.

5.1 The plaintiff is not at all ready and willing to perform

his part of contract. The defendant No.1 was compelled to

pursue the contract, as the plaintiff failed to obtain permission

PNR, J & JSR, J CCCA.No.168 OF 2006

even after lapse of 30 months and showed no progress in work.

The defendant No.1 got issued legal notice dated 28.08.1999

calling upon the plaintiff about the cancellation of agreement

and accordingly returned the amount of Rs.2,00,000/-deposited

with the defendants. Thus, the agreement stood rescinded.

Thereafter, the plaintiff came up with a fresh proposal to

purchase the said property for a valid sale consideration of

Rs.60,00,000/- after the cancellation of the development

agreement. They offered to pay Rs.20,00,000/- directly to the

'Ramakrishna Mutt' on 8.3.2000 and the same has to be

adjusted against the sale consideration and balance amount of

Rs.40,00,000/- to be paid within a period of 4 to 5 month,

thereafter a formal sale agreement would be executed. The

deliberations were held on 21.2.2000 in Rama Krishna Mutt was

reduced into writing asMemorandum of Understanding. Plaintiff

failed to comply the pre-requisite condition as stipulated in the

MOU dated 20.01.2000. This itself shows that the development

agreement dated 05.02.1997 was duly cancelled. The plaintiff

has deliberately suppressed the MOU dated 20.01.2000. The

plaintiff has no right to enforce the development agreement

dated 05.02.1997, more so, the plaintiff firm cannot question

the cancellation of the agreement by defendant No.1. Thus, the

PNR, J & JSR, J CCCA.No.168 OF 2006

plaintiff has no cause of action and the Court fee paid is

insufficient and the suit is liable to be dismissed.

6. Defendant Nos. 2 and 3 also filed their written statement

contending that the partnership deed was not registered and it

was executed on a stamp paper worth Rs.300/-. The

development agreement dated 05.02.1997 was not registered

and written on a stamp paper of Rs.100/-. Y. Satyanarayana

executed settlement deed dated 26.02.1953 giving life estate to

the defendant No.1 and vested remainder to Dinesh Kumar in

1/3rd of the suit schedule property to ensure that the fruits of

the property given by him to be enjoyed by his grandson and to

prevent misuse or squander by his daughter. Dinesh Kumar,

who is the only issue of the defendant No.1 died without being

conferred absolute rights and ownership to the extent of

defendant No.1's 1/3rd share in the suit schedule property.

Thus, the defendant No.1 has not acquired any title over the

suit schedule property as Class-I heir of her son. Her son died

before he became an absolute owner. It was also incorporated in

the settlement deed that in case anyone or more of the settles

4,5 and 6 dies or die without leaving any issue, the suit

schedule property given to such deceased settle herein shall be

taken by the surviving settle among Settles 4, 5 and 6

PNR, J & JSR, J CCCA.No.168 OF 2006

i.e.,defendant Nos.1 to D3 herein or their children. The

defendant No.1 has not inherited to the suit schedule property

from her husband A. Ramachander. She is having limited or

restricted estate only and did not acquire absolute interest as

owner. Under Section 14 (1) and 14 (2) of Hindu Succession

Act, it was held that a Hindu widow, who has not inherited the

property from her husband nor possessed of it in lieu of

maintenance from the profit of her husband cannot derive any

higher rights than what is stipulated in the document or

instrument. The suit schedule property is still a joint and

undivided property as per the Government record, within the

terms and scope of Item No.1 of settlement deed dated

26.02.1953. Defendant No.1 is not the absolute owner of the

suit schedule property.

6.1 The contention of the plaintiff that the suit schedule

property was divided even during the lifetime of the settler is

false but it is still undivided. The defendants referred to several

circumstances to prove that the suit schedule property is still

undivided joint family property and not divided among the three

sisters and it is pleaded that the house property was divided for

the sake of convenience for letting out the tenants, collecting

rents for a particular portion and there is no division of suit

schedule property by metes and bounds. They have further

PNR, J & JSR, J CCCA.No.168 OF 2006

pleaded that as the only son of the defendant No.1 died before

her death, she got only life interest in the suit schedule property

and after her death, the property devolves upon the defendant

Nos. 2 and 3, who are the children of late sister of defendant

No.1 and also the defendant No.4, who is a surviving sister. The

"Ramakrishna Mutt" while executing the release deed mentioned

that the defendant No.1 has got only life interest and Dinesh

Kumar, who has vested remainder passed away. They have

correctly given the legal position in the release deed. These

defendants objected to grant and accord sanction for

construction in favour of the plaintiff. All the above averments

of the written statement would reflect that the suit schedule

property was not divided by metes and bounds. The plaintiff has

miserably failed to perform, his part of contract. The garages in

the suit schedule property are in possession and enjoyment of

tenants of these defendants. The defendant No.1 has no right

whatsoever to enter into contract for development of the land in

question. No plan of the suit schedule property is given, so that

it cannot be identified and the suit is liable to be dismissed.

7. The plaintiff filed a rejoinder to the written statements of

the defendant Nos. 2 and 3 inter alia contending that defendant

Nos. 2 and 3 are strangers to the transaction between the

PNR, J & JSR, J CCCA.No.168 OF 2006

defendant No.1 and plaintiff and they have no cause or lis with

this plaintiff. The claim of the defendant Nos. 2 and 3 against

the defendant No.1 cannot be agitated in this suit. The claim of

defendants 2 and 3 is that Smt. Shyamala Devi has only life

interest is not the subject matter in the suit. The conditions

incorporated in the settlement deed 22.02.1953 do not operate

at this juncture, in view of the changed circumstances. The

defendant Nos. 2 and 3 are trying to grab the suit schedule

property while demonstrating the sign of protecting their

interest. The assertion made by the plaintiff with regard to the

title of the defendant No.1 is in consonance with the law of the

land. The release deed dated 08.07.1994 is not related to the

defendants. The defendant Nos. 2 and 3 are trying to confuse

the issue with regard to the common open land. The plaintiff

denied that defendant No.1 has defect in title. The contention of

the defendant Nos. 2 and 3 may be rejected.

8. The defendant No.1 filed a lengthy rejoinder to the written

statement of the defendant Nos. 2 and 3. She pleaded that she

got acquired absolute right over the suit property which was

settled in her favour, as her right against the suit property was

created towards her maintenance, as she became a widow. The

defendant No.1 and her two sisters divided the suit property by

PNR, J & JSR, J CCCA.No.168 OF 2006

oral partition in the year 1970. The defendant No.1 got the suit

property in partition during the year 1970 and that she has

been in peaceful possession and enjoyment of the same by

letting out the suit property to various tenants;

namely,Ramurthy and Company, Yogesh Arora and Vijay Auto

Garage. Her two sisters have been collecting the rents from the

tenants, who are in occupation of their respective premises. The

clause incorporated in settlement deed restraining alienation of

the suit property is void, sham and tissue of arrant falsehood,

as it hit by Section 10 of Transfer of Property Act. The defendant

No.1 has become absolute owner of estate with effect from

17.6.1956 by virtue of provisions of Hindu Succession Act, 1956

and thus she became absolute owner of the suit property. The

defendant Nos. 2 and 3 cannot question the defendant No.1's

right to deal with the suit property. She never made any

statement admitting that the suit property is joint property. The

defendant is no way concerned with the failure of the plaintiff to

obtain approval of plan by the Corporation. The defendant Nos.

2 and 3 have no right over the suit schedule property and they

cannot question the application filed by the plaintiff. The

defendant Nos. 2 and 3 are neither necessary nor proper parties

to the suit. Their claim may be rejected.

PNR, J & JSR, J CCCA.No.168 OF 2006

9. Defendant Nos. 2 and 3 filed their additional written

statement after the death of the defendant No.1 and after his

surviving sister and brother were added as defendant Nos. 4

and 5 in the suit. They have pleaded that the sons of late

Satyanarayana have no right, title or interest whatever over the

suit schedule property. Defendant Nos. 2 to 4 have succeeded to

the property after the death of the defendant No.1.

10. Defendant No.4 filed written statement supporting the

contention of the defendant No.1 as to how she acquired the

property in partition among the sisters, plaintiff's failure to

perform his part of the original development agreement and

subsequent MOU and the defendant No.1 bequeathing the suit

property in favour of "RamkrishnaMutt" by a Will dated 28.05.2001

under which the defendant No.4 and her son were represented

as Executors.

11. The sixth defendant filed written statement reiterating the

pleas taken by the 1st defendant and her son Dinesh Kumar

alienating the property to this defendant and this defendant

releasing the property to the first defendant and other pleas

taken by the first defendant and the plaintiff's failure to perform

their part of first contract or second contract. They pleaded that

the first defendant executed a will dated 28.05.2001

PNR, J & JSR, J CCCA.No.168 OF 2006

bequeathing the suit schedule property to this defendant and

registered the same as document No.41/2004. The fourth

defendant and her son M. Jayanth Tagore were appointed as

executor of the said Will. This defendant succeeded to the suit

property under the Will. The plaintiff cannot enforce the

development agreement against this defendant which is created

under Trust Deed dated 31.01.1991. The suit is liable to be

dismissed.

12. Basing upon the pleadings of the respective parties, the

Court below initially framed five issues for trial and

subsequently framed three additional issues, which are as

follows:

i) Whether the defendant No.1 is the owner and possessor of the suit property?

ii) Whether the development agreement created by D1 in favour of the plaintiff is cancelled as alleged by D1 in her written statement?

iii) Whether the development agreement is valid and enforceable in law?

iv) Whether the plaintiffs are entitled to the reliefs as claimed in law?

v) To what relief?

The following additional issues were framed on

15.12.2003:

Whether there was an oral partition in 1970 among three daughters of the Settler of properties settled

PNR, J & JSR, J CCCA.No.168 OF 2006

under the settlement deed dated 26.02.1953 by metes and bounds as alleged by defendant No.1?

Additional issue framed on 31.08.2004:

Whether the suit agreement for development binds the fourth defendant?

Additional issue framed on 05.04.2005:

Whether the agreement relied upon by the plaintiff binds defendant No.6?

13. The Court below after taking into consideration of oral and

documentary evidence on record and also after hearing both

parties, dismissed the suit with costs, directing the plaintiff to

pay an amount of Rs.95,002/- to the defendant No.6 by its

judgment and decree dated 20.01.2006.

14. Aggrieved by the judgment and decree passed by the Court

below, the plaintiff filed the presentappeal,videCCCA No.168 of

2006 under Section 96 r/w. Order-41 Rule 1 of CPC.

15. The learned Senior Counsel for the plaintiff contended that

the Court below without properly considering the contentions of

the plaintiff, oral evidence of PWs. 1 and 2, documentary

evidence of Exs.A.1 to A.12 had erroneously dismissed the suit,

which is contrary to law. He further contended that the

defendant No.1 is the absolute owner of the suit schedule

property and the same was acquired through registered

PNR, J & JSR, J CCCA.No.168 OF 2006

settlement deed vide document No.69/1953, dated 26.02.1953

executed by her father and since then she has been in

possession and enjoyment of the property. He further

contended that in pursuance of the above said settlement deed,

the defendant No.1 and her son alienated the suit schedule

property in favour of defendant No.6-Ramakrishna Mutt on

11.02.1974 and subsequently defendant No.6 executed release

deed in favour of defendant No.1 on 08.07.1994. By virtue of

the same, the defendant No.1 is owner of the suit schedule

property. While things stood thus, the son of defendant

No.1died.

16. Learned Senior Counsel further submits that the

defendant No.1 executed development agreement on 05.02.1997

in favour of the plaintiff. As per the terms and conditions of the

said development agreement, the plaintiff has to construct a

commercial complex at its cost after obtaining permission from

the Municipal Corporation of Hyderabad and the plaintiff was

entitled to 60% and defendant No.1 is entitled to the remaining

40% of the constructed area. The recital of the said

development agreement discloses that the entire construction

should be completed within a period of 18 months. However,

there is a clause for extension of time for six months more. As

PNR, J & JSR, J CCCA.No.168 OF 2006

per the terms and conditions of the agreement, the entire

construction has to be completed within a period of 24 months

from 05.02.1997. The learned counsel further contended that

there were tenants in two portions of the suit schedule property

and the defendant No.1 has to settle the issues, and would

vacate the tenants and handover the possession of the building

to the plaintiff. He also stated that the plaintiff has to deposit

an amount of Rs.2,00,000/- with the defendant No.1 towards

security. Plaintiff has made an application to the G.H.M.C for

grant of approved sanctioned plan and he paid requisite amount

also. Due to non-cooperation of defendant No.1 as well as the

other family members of defendant No.1 the plaintiff could not

get the sale deeds in respect of the suit schedule property, as

the defendant No.1 failed to hand over the vacant physical

possession of the same to the plaintiff. The learned Senior

Counsel further contended that the plaintiff has expressed his

ready and willingness to perform his part of contract but due to

non-cooperation of the defendants the plaintiff could not get the

approved sanctioned plan from the MCH. He further contended

that defendant No.1 executed the development agreement on

05.02.1997 wherein it was specifically incorporated that she will

obtain "no objection certificate", from her family members and also

further agreed that she will take steps for vacating the

PNR, J & JSR, J CCCA.No.168 OF 2006

tenants,who are in occupation of the suit schedule property.

The plaintiff trusted the assurances given by the defendant No.1

but the defendant No.1, herself violated the terms and

conditions of the development agreement dated 05.02.1997,

which is not enforceable under law and cancelled the said

development agreement of sale and also returned the amount of

Rs.2,00,000/-. He further contended that the sale deed

executed by the defendant No.1 and her son on 11.02.1974 in

favour of "Ramakrsihna Mutt" was cancelled by virtue of the

release deed. He also submits that the defendant No.1 admitted

the entire case of the plaintiff that she is absolute owner of the

suit schedule property and she has rightly executed the

development agreement on 05.02.1997, by receiving of

Rs.2,00,000/- towards security and also admitted that she was

alone responsible to obtain "No Objection Certificates" from her

family members.

17. The learned counsel further submits that the defendant

No.1 has not taken any steps for getting "No Objection Certificate"

from her family members and she has not taken steps to hand

over the vacant possession of the suit schedule property,

wherein part of the suit schedule property is under the

possession and occupation of respective tenants. Due to non-

PNR, J & JSR, J CCCA.No.168 OF 2006

cooperation of the defendant No.1 and her family members, the

plaintiff was unable to get requisite sanctioned plan from MCH

and there are no latches on the part of the plaintiff. In spite of

the same, the Court below without properly appreciating the

contentions of the plaintiff and failed to appreciate the oral and

documentary evidence on record has erroneously dismissed the

suit, which is contrary to law. The learned Senior Counsel

further contended that the trial Court while giving specific

finding in favour of the plaintiff in respect of Issue No.1 holding

that defendant No.1 is owner and possessor of the suit schedule

property, on the other hand, has dismissed the suit. Therefore,

the judgment and decree passed by the Court below is contrary

to the provisions of Sections 19 and 20 of Specific Relief Act.

When the plaintiff has proved and established that he is ready

and willing to perform his part of contract as per the

development agreement dated 05.07.1997 under Ex.A3, the

Court below ought not to have dismissed the suit. He also

contended that the defendants 2 to 5 are not having any

semblance of right over the suit schedule property and they are

not entitled to raise any dispute including execution of the

development agreement under Ex.A.3 in favour of the plaintiff.

PNR, J & JSR, J CCCA.No.168 OF 2006

18. The learned Senior Counsel further submitted that the

father of defendant No.1 had executed settlement deed on

26.02.1953 bequeathing the suit schedule property infavour of

defendant No.1. As per the terms of the settlement deed the

suit schedule property is a self-acquired property of the father of

defendant No.1 and that he has rightly executed settlement

deed and the same was not questioned by any of the parties. In

such, circumstances the defendants 2 to 5 are not entitled to

claim any share in the suit schedule property. Admittedly the

suit schedule property is not a joint family property. The entire

dispute centred round between the plaintiff and defendant No.1

only.

19. The learned counsel vehemently contended that the Court

below, has given specific finding that defendant No.1 is the

absolute owner of the suit schedule property and the said

finding was not challenged by any of the defendants and the

said finding has become final and binding on the respective

parties. In such circumstances, the defendants 2 to 5 are not

having any semblance of right, interest over the suit schedule

property.

20. In support of his contentions the learned counsel for the

appellant relied upon the judgments of the Hon'ble Supreme

PNR, J & JSR, J CCCA.No.168 OF 2006

Court inUnited Bank of India Vs. Ramdas Mahadeo Prashad

and Others1and in Sushil Kumar Agarwal Vs. Meenakshi

Sadhu and Others2 and also in Ashok Kumar Jaiswal and

Others Vs. Ashim Kumar Kar and Others3 contending that

the finding given by the trial Court in respect of Issue No.1

holding that the defendant is the absolute owner of the suit

schedule property has become final and the same was not

challenged by the other defendants by way of appeal. Hence, the

defendant No's. 2 to 5 are not entitled to canvass that they are

having rights in the suit schedule property.

21. The learned counsel for the respondent No.4 Sri Mahmood

Ali contending that defendant No.1 is having life interest only

and she has not entitled to execute any document infavour of

the third parties including the development agreement dated

05.02.1997 infavour of the plaintiff and the same cannot be

enforceable under law.

22. The learned Senior Counsel Sri Ashok Anand Kumar

representing on behalf of the defendant No's. 2 and 3 contended

that as per the settlement deed/Ex.B4 executed by the father of

the defendant No.1 clearly show that the defendant No.1 is

2004 (1) SCC 252

22019 (2) SCC 241 3AIR2014 Cal 192

PNR, J & JSR, J CCCA.No.168 OF 2006

having only limited interest i.e., she is having life interest only

and vested reminder to her son. He further contended that the

son of first defendant died. In view of the same, the defendant

No.1 is having only limited interest to enjoy the suit schedule

property till her life time and she is not entitled to execute any

document in respect of the suit schedule property including the

execution of development agreement/Ex.A3 infavour of the

plaintiff. He further contended that defendant No.1 in her cross-

examination specifically admitted that she is claiming right over

the suit schedule property through settlement deed/Ex.A10,

which was executed by her father only. Except the same, she is

not having any other document to claim the suit schedule

property. He further contended that as per the provisions of

Sections 10, 19, 21 and 23 of the Transfer of Property Act, the

defendant No.1 is not having any right to execute the

development agreement infavour of the plaintiff. He further

contended that as per the provisions of Sections 14 and 30 of

Hindu Succession Act, the defendants 2 and 3 are having rights

over the property, as they are the coparceners.

23. The learned senior counsel further contended that the

Court below after considering the oral and documentary

evidence and after hearing both the parties has rightly

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dismissed the suit. He also contended that merely not

challenging the finding given by the trial Court in respect of

Issue No.1 declaring that the defendant No.1 is owner of the suit

schedule property, the plaintiff is not entitled to seek

enforcement of the development agreement/Ex.A3. The finding

given by the Court below is contrary to the settlement

deed/Ex.A10, wherein the specific recital connotes that the

defendant No.1 is having only life interest. The Court below

without properly considering the recitals as mentioned under

Ex.A-10,has erroneously given the said finding. He further

submitted that as per the provisions of Order-41 Rule 33 of CPC

the defendants are entitled to canvas in the appeal that the

finding given by the lower Court in respect of Issue No.1 holding

that the 1st defendant is owner of the suit schedule property,

iscontrary to the pleadings and evidence on record, without

filing appeal or cross-appeal, the appellate Court is having

power and jurisdiction to examine the said findings. The learned

Senior Counsel further contended that the plaintiff has entered

into MOU with the first defendant on 20.01.2000 under Ex.B12

subsequent to development agreement/Ex.A3, wherein the

plaintiff specifically mentioned that plaintiff is willing to

purchase the suit schedule property and by virtue of execution

of MOU, earlier development agreement executed by the 1st

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defendant dated 05.02.1997 in favour of plaintiff is no more in

existence and the plaintiff is not entitled to seek the

enforcement of the development agreement and the suit filed by

the plaintiff is not maintainable under law and the Court below

rightly dismissed the suit and there is no illegality or irregularity

in the impugned judgment.

24. In support of his contention the learned Senior Counsel

relied upon the following judgments:

(1)Vaddeboyina Tulasamma and Others Vs. Vaddeboyina SeshaReddi4

(2) Ram Vishal (dead by Lrs and Others Vs Jagan Nath and Another5

(3) Jogi Ram Vs. Suresh Kumar and Others6

(4) Prahlad Pradhan and Others Vs. SonuKumhar and Others7

(5) Panna Lal Vs. State of Bombay8,

25. The learned Senior Counsel Sri V. Hari Haran representing

on behalf of the plaintiff in reply contended that Ex.B12 is the

consignment of contract only. Subsequently, the defendant No.1

executed Will-Deed dated 28.05.2001 under Ex.B15

bequeathing the suit schedule property in favour of

4 AIR 1977 Supreme Court 1944 5 (2004) 9 Supreme Court Cases 302 6 (2022) 4 Supreme Court Cases 274 7 (2019) 10 Supreme Court Cases 259 8 (1964) 1 SCR 1 SCR 980 = AIR 1963 SC 1516

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defendantNo.6. In view of the same, plaintiff has rightly

instituted the suit for enforcement of the development

agreement under Ex.A3. The MOU/Ex.B.12 and the

development agreement/Ex.A.3 are not similar. He further

submits that as per the provisions of Section 19 of the Specific

Relief Act the plaintiff has rightly instituted the suit for seeking

enforcement of development agreement and the same is

permissible under law. In support of his contention, he has

relied upon the judgment reported in Anil Kumar Singh Vs.

Shivnath Mishra @ Gadasa Garu9

26. In view of the rival submissions made by the learned

counsels for the parties and material on record, the following

points that arise for consideration in this appeal, which read as

under:

(1) Whether the defendant No's. 2 and 3 are entitled to question the finding given by the Court below in respect of Issue No.1 in the absence of filing independent appeal/cross-objections?

(2) Whether the plaintiff is entitled for grant of decree for specific performance of development agreement dated 05.02.1997?

(3) Whether the judgment and decree passed by the Court below is sustainable under law?

9 1995 (3) SCC 147

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POINT NO.1

27. As per the pleadings of the respective parties as well as

evidence of the defendant No.1, who was examined as DW-1,

clearly discloses that shehas acquired the suit schedule

property from her father through registered settlement

No.816/1974 dated 11.02.1974 which was marked as Ex.A.10.

The recitals of the document clearly state that the defendant

No.1'srights are limited to life interest only. Moreover, during

the cross-examination defendant No.1 has admitted that she is

claiming rights over the suit schedule property through Ex.A.10

only and she is not relying on any other document, and has also

admitted that she is having only a life interest in the suit

schedule property. In view of the specific recitals as well as

specific admissions made by DW.1, the defendant No.1 is

having only limited interest in the suit schedule property and

she is not having any right to transfer the suit schedule

property in favour of third parties including execution of

development agreement/Ex.A.3 infavour of plaintiff. In such

circumstances, the finding given by the Court below that the

defendant No.1 is absolute owner of the suit schedule property,

iscontrary to the evidence on record.

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28. The learned counsel for the second and third defendants

have rightly contended that the appellate Court has the powers

to correct the findings given by the trial Court by exercising the

powers conferred under Order 41Rule 33 of CPC,in the absence

of questioning the said finding by way of appeal or cross-appeal.

28.1 In Panna Lal (supra), paragraphs Nos.11, 12, 14, and 18 read as under:

11. There is however much force in the appellant's contention that the High Court ought to have exercised its jurisdiction under O. 41 Rule 33 of the Code of Civil Procedure in favour of the plaintiff. The operative portion of that rule, which was for the first time introduced in the Civil Procedure Code in 1908, is in these words:

"33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made, and to pass or make such further or other decree or order, as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may have filed any appeal or objection."

A proviso was added to this by Act 9 of 1922 which, however, does not concern us. It is necessary however to set out the illustration to the rule which runs thus:--

"A claim a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X appeals and A and Y are respondents. The appellate decides in favour of X. It has power to pass a decree against Y."

12. Even a bare reading of O. 41 Rule 33 is sufficient to convince anyone that the wide wording was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondent as "the case may require". In the present case, if there was no impediment in law the High Court could therefore, though allowing the appeal of the State by dismissing the plaintiff's suits against it, give the plaintiff a decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the Section make this position abundantly clear the illustration puts the position beyond argument.

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14. The whole argument is based on the assumption that the plaintiff could by filing a cross-objection under Order 41 Rule 22, Civil Procedure Code, have challenged the trial court's decree in so far as it dismissed the suit against the defendants other than the State. We are not, at present advised, prepared to agree that if a party who could have filed a cross- objection under Order 41 Rule 22 of the Code of Civil Procedure has not done so, the Appeal Court can under no circumstances give him relief under the provisions of Order 41 Rule 33 of the Code. It is, however, not necessary for us to discuss the question further as, in our Opinion, the assumption made by the High Court that the plaintiff could have filed a cross-objection is not justified.

18. In our opinion the view that has now been accepted by all the High Courts that Order 41 Rule 22 permits as a general rule, a respondent to prefer an objection directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the appellant in such an objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being re-opened between the objecting respondent and other respondents, that an objection under Order 41 Rule 22 can be directed against the other respondents, is correct. Whatever may have been the position under the old Section 561, the use of the word "cross- objection" in O.41 Rule 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant. As Rajammannar, C.J. said Venkateswarlu v. Ramanma [ILR (1950) Mad, 874]. "The legislature by describing the objection which could be taken by the respondent as a "cross-objection" must have deliberately adopted the view of the other High Courts. One cannot treat an objection by a respondent in which the appellant has no interest as a cross-objection. The appeal is by the appellant against a respondent. The cross-objection must be an objection by a respondent against the appellant". We think, with respect, that these observations put the matter clearly and correctly. That the legislature also wanted to give effect to the views held by the different High Courts that in exceptional cases as mentioned above an objection can be preferred by a respondent against a co-respondent is indicated by the substitution of the word "appellant" in the third paragraph by the words "the party who may be affected by such objection."

29. The judgments relied by the learned counsel for the

plaintiff in 2004 (1) SCC 252, 2019 (2) SCC 241 and AIR 2014 Cal

192 are not applicable to the facts and circumstances of this

case.

30. In the instant case, the defendant No.1 acquired the suit

schedule property from her father through registered settlement

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deed/Ex.A10 and the recitals of the document clearly shows

that defendant No.1 is having only life interest in the suit

schedule property and she is not having any right to transfer

the suit schedule property to third parties including execution

of development agreement/Ex.A3 in favour of plaintiff.

31. In view of foregoing discussion, the finding given by the

Court below that the defendant No.1 is absolute owner of the

suit schedule property, is contrary to the evidence on record

and the same is liable to be set aside by exercising the powers

conferred under Order 41 Rule 33 of CPC as well as principles

laid down by the Hon'ble Apex Court in the case of Panna Lal.

Accordingly, Point No.1 is answered in favour of defendants.

POINT NO.2

32. The Court below after considering the contentions of both

the parties, oral and documentary evidence on record, gave

specific finding that subsequent to execution of Ex.A3/

development agreement, the plaintiff himself entered into MOU

with the defendant No.1 which clearly establish under Ex.B.12

that the plaintiff himself gave up his rights under

Ex.A3/development agreement. The Court below rightly

observed in Para Nos.36 to 38 as under:

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"36. The fact that the plaintiff gave up the development agreement Ex.A3 and wanted to perform their part of contract and Ex.A12 Memorandum of Understanding is evident from the evidence of P.W.1 himself who says that he took Rs.14,50,000/- in the shape of demand draft and balance of Rs.5,50,000/- in the shape of demand draft and balance of Rs.5,50,000/-. In cash to deliver to Swamiji, but he did not hand over the documents or the cash to Swamiji, though the Swamiji was prepared to receive them, as the 1st defendant did not secure the consent of D-2 and D-3 who are objectors before the Municipal Corporation. It has to be seen that there were repeated discussions between the parties. The defendant Nos. 2 and 3 have already raised objections before the Municipal Corporation for construction. But, it was not made a condition in Ex.B12 that the 1st defendant should obtain the consent of Defendants Nos.2 and 3 for performing the plainhtiff's part of contract under Ex.B12. Thus, the plaintiff is introducing new conditions. In fact, it was recited in clause (j) of Ex.A3 development agreement that, "the second party hereby declare that they have verified the title of the 1st party with regard to the schedule property and after satisfying with her title to the schedule property as its sold, absolute and exclusive owner has entered into this development agreement...." And they will not resile from the contract on the ground of defect in title of the 1st party, even if it is detected later by them. I therefore hold that Ex.A3 contract was substituted by Ex.B12 contract and Ex.A3 contract cannot be sought to be enforced by the plaintiff.

37. There is a clause in Ex.B.12 that after the plaintiff paid the amount, a formal sale agreement will be entered into and so. It is conclusion that Ex.B.12 is not an agreement by itself. If the full amount is paid and no other conditions are to be fulfilled by the 1st defendant a sale deed would follow and there is no necessity of another sale agreement. The learned Advocate for the 1st defendant relied upon AIR 1968 SC 1028 (K. Sriramulu Vs. AswathaNaryana) wherein it was held as follows:

"A mere reference to a future formal contract will not prevent a binding bargain between the parties. The fact that the parties refer to the preparation of an agreement by which the terms agreed upon are to be put in a more formal shape does not prevent the existence of a binding contract. There are. however, cases where the reference to a future contract is made in such terms as to show that the parties did not intend to be bound. until a formal contract is signed. The question depends upon the intention of the parties and the special circumstances of each particular case. The fact of a subsequent agreement being prepared may be evidence that the previous negotiations did not amount to a concluded agreement, but the mere fact that persons wish to have a formal agreement drawn up does not establish the proposition that they cannot be bound by a previous agreement".

38. I, therefore, hold that the plaintiff gave up his rights under Ex.A3, the agreement is deemed to be cancelled and it is substituted by Ex.B12 agreement. He did not perform his part of

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contract even under Ex.B12. the plaintiff is not entitled to specific performance of Ex.A3 agreement as well as Ex.B12 agreement".

32.1 In Vaddeboyina Tulasamma and Others (supra), paragraphs-63, 64, 68, 70 read as under:

"63. Thus, on a careful scrutiny and analysis of the authorities discussed above, the position seems to be that the view taken by the High Courts of Bombay, Andhra Pradesh, Patna, Mysore, Punjab, Calcutta and Kerala to the effect that the widow's claim to maintenance, even though granted to her subject to certain restrictions, is covered by Section 14(1) and not by sub-section (2) is based on the following premises:

"(1) That the right of a Hindu widow to claim maintenance is undoubtedly a right against property though not a right to property. Such a right can mature into a full-fledged one if it is charged on the property either by an agreement or by a decree. Even otherwise, where a family possesses property, the husband, or in case of his death, his heirs are burdened with the obligation to maintain the widow and, therefore, the widow's claim for maintenance is not an empty formality by a pre-existing right.

(2) Section 14(2) which is in the nature of a proviso to Section 14(1) cannot be interpreted in a way so as to destroy the concept and defeat the purpose which is sought to be effectuated by Section 14(1) in conferring an absolute interest on the Hindu women and in doing away with what was hereto before known as the Hindu women's estate. The proviso will apply only to such cases which flow beyond the purview of the Explanation to Section 14(1).

(3) That the proviso would not apply to any grant or transfer in favour of the widow hedged in by limitation or restrictions, where the grant is merely in recognition or declaration of a pre-existing right; it will apply only to such a case where a new right, which the female did not possess at all is sought to be conferred on her under certain limitations or exceptions. In fact, in such a case even if a conditional grant is made to a male, he would be bound by the condition imposed. The proviso wipes out the distinction between a male and a female in this respect."

64. The contrary view taken by the Madras, Orissa, Andhra Pradesh, Allahabad and Jammu & Kashmir High Courts proceeds on the following grounds:

"(1) That a widow's claim to maintenance is merely an inchoate or incomplete right having no legal status; unless the widow gets a property in lieu of maintenance or unless a charge is created in a particular property the claim for maintenance cannot be legally enforced. Thus, where under a grant, compromise, transfer or a decree, a property is allotted to the widow in lieu of maintenance, it is not the recognition of any pre-existing right but it amounts to conferment of a new right for the first time which in fact did not exist before the said demise. This view is really based on the provisions of the Hindu Women's Rights to Property Act,

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1937, under which the widow has got the right to get a share of his son in lieu of partition and even otherwise she is entitled to her share in the joint Hindu family property on partition. These High Courts, therefore, seem to be of the opinion that in view of the provisions of the Hindu Women's Rights to Property Act, the widow in claiming a share in the property has a pre-existing right which is recognised by law, namely, the Act of 1937. The same, however, cannot be said of a bare claim to maintenance which has not been recognised as a legal right and which can mature into a legally enforceable right only under a grant or demise. This view suffers from a serious fallacy, which is based on a misconception of the true position of a Hindu widow's claim for maintenance. It has been seen from the discussion regarding the widow's claim for maintenance and her status in family that under the pure Shastric Hindu law the widow is almost a co-owner of the properties with her husband and even before the Act of 1937 she was entitled to the share of a son on the death of her husband after partition according to some schools of Hindu law. The Act of 1937 did not introduce any new right but merely gave a statutory recognition to the old Shastric Hindu law on the subject. In this respect the Act of 1937 is very different from the Act of 1956, the latter of which has made a revolutionary change in the Hindu law and has changed the entire complexion and concept of Hindu women's estate. In these circumstances, therefore, if the widow's claim for maintenance or right to get the share of a son existed before the Act of 1937, it is futile to dub this right as flowing from the Act of 1937. The second fallacy in this view is that Court failed to consider that the claim for maintenance is an important right which is granted to the widow under the Shastric Hindu law which enjoins the husband to maintain his wife even if he has no property.

Where he has a property, the widow has to be maintained from that property so much so that after the death of her husband anyone who inherits that property takes the property subject to the burden of maintaining the widow.

Even where the property is transferred for payment of family debts and the transferee has the notice of the widow's claim for maintenance, he has to discharge the burden of maintaining the widow from the property sold to him. Thus, the nature and extent of the right of the widow to claim maintenance is undoubtedly a pre-existing right and it is wrong to say that such a right comes into existence only if the property is allotted to the widow in lieu of maintenance and not otherwise.

(2) Another reasoning given by the courts taking the contrary view is that sub-section (2) being in the nature of a proviso to Section 14(1) all grants with conditions take the case out of Section 14(1). This, as we have already pointed out, is based on a wrong interpretation of the scope and ambit of sub-section (2) of Section 14.

(3) Lastly, the contrary view is in direct conflict with the observations made by this Court in the cases referred to above, where a grant in lieu of maintenance of the widow has

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been interpreted as being in recognition of a pre-existing right so as to take away the case from the ambit of sub- section (2).

68. Lastly strong reliance was placed by Mr Natesan counsel for the respondents on a decision of this Court in Naraini Devi (Smt) v. Ramo Devi [(1976) 1 SCC 574] to which one of us (Fazal Ali, J.) was a party. This case is no doubt directly in point and this Court by holding that where under an award an interest is created in favour of a widow that she should be entitled to rent out the property for her lifetime, it was held by this Court that this amounted to a restricted estate under Section 14(2) of the 1956 Act. Unfortunately, the various aspects, namely, the nature and extent of the Hindu women's right to maintenance, the limited scope of sub-section (2) which is a proviso to sub-section (1) of Section 14 and the effect of the Explanation, etc. to which we have adverted in this judgment, were neither brought to our notice nor were argued before us in that case. Secondly, the ground on which this Court distinguished the earlier decision of this Court in Badri Pershad v. Kanso Devi was that in the aforesaid decision the Hindu widow had a share or interest in the house of her husband under the Hindu law as it was applicable then, and, therefore, such a share amounted to a pre-existing right. The attention of this Court, however, was not drawn to the language of the Explanation to Section 14(1) where a property given to a widow at a partition or in lieu of maintenance had been placed in the same category, and, therefore, the reason given by this Court does not appear to be sound. For the reasons that we have already given, after taking an overall view of the situation, we are satisfied that the Division Bench decision of this Court in Naraini Devi case was not correctly decided and is, therefore, overruled.

70. We would now like to summarise the legal conclusions which we have reached after an exhaustive consideration of the authorities mentioned above on the question of law involved in this appeal as to the interpretation of Sections 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

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object of the 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 of the main provision or the 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 of the 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 of a female is legally 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, if any, under the document would have to be ignored. Thus, where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub- section (2) and would be governed by Section 14(1) despite any restrictions 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 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 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 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.

(7) That the words 'restricted estate' used in Section 14(2) are wider than limited interest as indicated in Section 14(1) and

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they include not only limited interest, but also any other kind of limitation that may be placed on the transferee."

32.2 In Ram Vishal (dead) by Lrs and Others (supra),

paragraph-16 reads as under:

"16. In this case, R has validly disposed of his separate property by a will. This is permissible as he has the capacity to so dispose of it. He is also enabled to do so by Section 30 of the Hindu Succession Act. He is thus entitled to interfere with the succession that would have ensued if he had died intestate. In the context of the will executed by him the question is what has he bequeathed to his wife and whether he had placed any restriction on her estate so bequeathed".

32.3 In Jogi Ram Vs. Suresh Kumar and Others

(supra), paragraphs 32, 33, 36 read as under:

"32. We would first like to turn to the seminal judgment in V. Tulasamma case [V. Tulasamma v. Sesha Reddy, (1977) 3 SCC 99]. In para 20 the propositions emerging in respect of incidents and characteristics of a Hindu woman's right to maintenance have been crystallized as under: (SCC pp. 113-14)

"20. Thus, on a careful consideration and detailed analysis of the authorities mentioned above and the Shastric Hindu Law on the subject, the following propositions emerge with respect to the incidents and characteristics of a Hindu woman's right to maintenance:

'(1) that a Hindu woman's right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her even if he has no property. If the husband has property, then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow;

(2) though the widow's right to maintenance is not a right to property but it is undoubtedly pre-existing right in property i.e. it is a jus ad rem not jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a decree from the civil court;

(3) that the right of maintenance is a matter of moment and is of such importance that even if the joint property is sold and the purchaser has notice of the widow's right to maintenance, the purchaser is legally bound to provide for her maintenance;

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(4) that the right to maintenance is undoubtedly a pre- existing right which existed in the Hindu Law long before the passing of the Act of 1937 or the Act of 1946, and is, therefore, a pre-existing right;

(5) that the right to maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which the wife becomes a sort (Jayanti Subbaiah V. Alamel Mangamma [Jayanti Subbiah v. AlameluMangamma, 1902 SCC OnLine Mad 4 : ILR (1904) 27 Mad 45] and Yellawa v. Bhimangavda [Yellawa v. Bhimangavda, 1893 SCC OnLine Bom 3 : ILR (1893) 18 Bom 452] ) of co-owner in the property of her husband, though her co-ownership is of a subordinate nature; and (6) that where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchases the same is in a position to make due arrangements for her maintenance.

33. In the light of the aforesaid passage, Sections 14(1) and 14(2) of the said Act were entered by the Court. The word "possessed" was held to be used in a wide sense not requiring a Hindu woman to be in actual or physical possession of the property and it would suffice if she has a right in the property. The discussion in para 33 thereafter opines that the intention of Parliament was to confine sub-section (2) of Section 14 of the said Act only to two transactions viz. a gift and a will, which clearly would not include property received by a Hindu female in lieu of maintenance or at a partition. The intention of Parliament in adding the other categories to sub-section (2) was merely to ensure that any transaction under which a Hindu female gets a new or independent title under any of the modes mentioned in Section 14(2) of the said Act. The conclusions were thereafter set forth in para 62 of the judgment as under: (SCC pp. 135-36)

"62. We would now like to summarise the legal conclusions which we have reached after an exhaustive consideration of the authorities mentioned above on the question of law involved in this appeal as to the interpretation of Sections 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

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right so that any transfer declaring or recognizing 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 to be achieved by this long-needed legislation.

(4) Sub-section (2) of Section 14 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 pre-existing rights. In such cases a restricted estate in favour of a female is legally 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, if any, under the document would have to be ignored. Thus, where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-section (2) and would be governed by Section 14(1) despite any restrictions 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 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 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 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.

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(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 of limitation that may be placed on the transferee.

36. The testator in the present case, Tulsi Ram, had taken all care for the needs of maintenance of his wife by ensuring that the revenue generated from the estate would go to her alone. He, however, wished to give only a limited life interest to her as the second wife with the son inheriting the complete estate after her lifetime. We are, thus, of the view that it would be the provisions of Section 14(2) of the said Act which would come into play in such a scenario and Ram Devi only had a life interest in her favour. The natural sequitur is that the respondents cannot inherit a better title than what the vendor had and, thus, the view taken by the trial court and the first appellate court is the correct view and the sale deeds in favour of the respondents cannot be sustained".

32.4 In Prahlad Pradhan and Others (supra) paragraph No.4 reads as under:

"4. The courts below have found on the basis of the evidence adduced by the parties, that the appellants had failed to prove that the suit property was the self-acquired property of Mangal Kumhar. The burden to prove that the suit property was the self-acquired property of Mangal Kumhar was on the Appellant purchasers. Reliance is placed on this Court's judgment in Adiveppa v. Bhimappa [Adiveppa v. Bhimappa, (2017) 9 SCC 586 : (2017) 4 SCC (Civ) 678] wherein it was held that : (SCC p. 589, para

19)

"19. It is a settled principle of Hindu Law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property. (See Mulla, Hindu Law, 22nd Edn. Article 23 "Presumption as to coparcenary and self-acquired property", pp. 346 and 347.)"

(Emphasis supplied)

The appellants have failed to discharge the burden to prove that the suit property was separate or self-acquired property of Mangal Kumhar".

33. The Court below has given specific findings that the

development agreement under Ex.A3 was deemed to have been

cancelled and is substituted by Ex.B.12/MOU and further held

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that the plaintiff did not perform his part of contract even under

Ex.B12 and thus the plaintiff is not entitled for grant of decree

of specific performance of Ex.A3/development agreement as well

as Ex.B12/MOU. Therefore, the plaintiff is not entitled to the

relief claimed in the suit for grant of specific performance of

contract for enforcing development agreement/Ex.A3.

Accordingly, Point No.2 is answered against the plaintiff.

POINT NO.3