JUDGMENT
Untwalia, J.
1. This second appeal is by Bindbasni Singh, defendant No. 1, and Mosstt.. Phulwati Kuer, defendant No. 2. and arise out of a suit filed by the plaintiff-respondents for a declaration that the deed of sift executed by the latter in favour of the former on the 15th December, 1958, is not binding on the plaintiffs.
2. The main parties belong to the three branches of the family, the common ancestor of which was one Dund Singh. All the three branches were joint long before 1917. Subsequently there was separation, but the three sub-branches of one of the branches, namely, of Inder Singh, whose son was Sajiwan Singh, remained joint. Sajiwan had three sons, Chintaman Singh, Jagdeo Singh and Nanku Singh. Chintaman died leaving a widow Mostt. Dhaneshwar Kuer. Nanku died leaving a widow Mostt. Phulwati Kuer (appellant No. 2) Jagdeo Singh was the only surviving male member in that branch. He died issueless in the year 1918 and leaving no widow. Upon his death a registered deed of maintenance was executed on the 15th September. 1918, by the members of the other two branches in favour of two widows, Mosstt. Dhaneshwar Kuer and Mostt. Phulwati Kuer, giving in possession the properties of Jagdeo Singh in lieu of their right of maintenance for the period of their life, but the maintenance deed was not to remain operative after their death.
Mostt. Dhaneshwar Kuer died long ago and her half share in the property reverted to the members of the other two branches. Mostt. Phulwati Kuer, however, remained in possession of her half share which was given to her in lieu of maintenance. Thereafter on the H5th December. 1958, she executed a deed of gift in favour of appellant No. 1, which Is being challenged by the plaintiff-respondent No. 1 is Mosstt. Sheorati Kuer, widow of Dukhdevan Singh belonging to one of the branches of Dund Singh. Bindbasni Singh, appellant No. 1, is the son of Khublal Singh, belonging to the other branch of Dund Singh. Plaintiff No. 2 claims to be a donee from plaintiff No. 1.
3. The main defence in the suit was that on the passing of the Hindu Succession Act, 1956, defendant No. 2 had become absolute owner of the property. namely, half the property given in maintenance to her and the other widow.
4. Both the courts below have decreed the suit on the ground that even after passing of the Hindu Succession Act defendant No. 2 did not become the absolute owner and she had no right to execute a deed of gift in favour of defendant No. 1. The two defendants, therefore, have come up in second appeal.
5. The argument put forward on on their behalf, on the basis of a decision of a Bench of this court, of which I was a member, in Second Appeal No. 832 of 1966, decided on the 5th September, 1969, is that the defendant No. 2 had become an absolute owner on the passing of the Hindu Succession Act and, therefore, had absolute right to execute a deed of gift on the 15th December, 1958. It was also urged on behalf of the appellants that the properties in suit were the bakasht lands of the intermediaries and on the date of vesting of the Zamindari they were not in possession of the plaintiffs and hence they have no right to ask for any declaration in this suit as on the date of vesting they lost their title. I do not propose to go into the second question as, in my opinion, the appeal has got to be allowed on the first point.
6. On a consideration of the various authorities and the relevant provisions of the Hindu Succession Act in Sumeshwar Mishra v. Swami Nath Tiwari. Second Appeal No. 832 of 1966 (reported in AIR 1970 Pat 348) I have held:
“The difference to my mind between the cases under Sub-section (1) and Sub-section (2) of Section 14 of the Act, as has been laid down in several cases to which I will make a reference here, is that if the acquisition of the property by a famale Hindu can be related to her antecedent right or interest in the property then such an acquisition although as a limited owner or an acquisition of property in a limited sense will confer absolute ownership on the widow on and from the day of corning into force of the Act. If, however, the acquisition of the property cannot have any connection or relation to any kind of antecedent right or interest in the property of the female Hindu and the acquisition is conditioned by a restrictive clause, she will not become the absolute owner but will be governed by the restrictive clause mentioned in the gift, will, instrument, decree or order of a Civil Court or an award. The Explanation appended to
sub-section (1) of Section 14 of the Act says that ‘In this sub-section, ‘property’ includes both movable and immovable property acquired by a female Hindu by inheritance or demise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person . . .’ meaning thereby that even in cases where the female Hindu may not be held to be a limited owner of the property, as in the case of her coming in possession of the property in lieu of maintenance, it is possible to take such a view, still the inclusive definition of the word ‘property’ given in the Explanation will make her a limited owner for the purpose of Sub-section (1) of Section 14 of the Act. The right of a Hindu widow to get maintenance out of the joint family properties is an indefinite right; yet it is a right and she does not set maintenance gratis or by way of charity. She gets it in her right under the Hindu Law. If she is put in possession of certain property in satisfaction of that right for her life she is not a trespasser of the property. She enters into possession of the property acquiring some kind of limited ownership in it. In such a situation even if the restrictive clause is there in the instrument conferring a limited right on the widow it will have no effect because under Sub-section (1) she will
become the full owner of the property. …”
7. The case Is covered by the decision aforesaid and the view taken by the courts below is erroneous in law. The appeal is, accordingly, allowed with costs, the judgments and the decrees of the courts below are set aside and the suit of the plaintiffs is dismissed. The appellants will have the costs in the lower appellate court also but not of the trial court.
A.N. Mukharji, J.
8. I agree.