JUDGMENT
S.T. Kharche, J.
1. This Second Appeal arises out of the Judgment and Decree passed by IVth Additional District Judge, Akola in Regular Civil Appeal No. 295/1982, dismissing the appeal and upholding the finding of the Trial Court in Regular Civil Suit No. 185/1981, dismissing the suit of the appellant/plaintiff, seeking possession of the suit property and permanent injunction.
2. None appears for the respondent/defendant, though served.
3. On hearing Mr. Palshikar, the learned Counsel for the original plaintiff, the substantial question of law involved in this appeal is, since the Gangaram and Chinnu are brothers having ancestral property in question, and Chinnu having died on 17.2.1923 his widow, deceased Premabai had no share in the ancestral property and that she had only a right of maintenance. Her possession of the premises in question was only that of licensee and she could not become the owner of the property, by virtue of Section 14 of the Hindu Succession Act, 1956.
4. Brief facts are as under:
The genealogical tree of the parties are not disputed, which is as under:
Kalu (dead)
_________________________________________________________________________
| | |
Chinnnu = Premabai Gangaram
(Died in 1939) D-1 P-1
(died during pendency of the suit) |
________________|
|
Deokabai Bhiku Jamanabai
D-2 (Dead) P-2
|
Harishchandra
P-3
5. The case of the plaintiff is that the subject matter of the suit is nazul plot Nos. 151 and 146, situated in Municipal Ward No. 8 at Balapur, admeasuring 88.5 and 172.7 sq. meters respectively. Kalu died leaving behind him two sons – Chinnu and Gangaram plaintiff No. 1. Chinnu died in the year 1939 leaving behind him widow Premabai defendant No. 1, who died during the pendency of the suit. Chinnu and Premabai has one daughter by name Deokabai, who is defendant No. 1. Gangaram has one son Bhiku, who died leaving behind him widow – Jamnabai plaintiff No. 2 and son Harishchandra who is plaintiff No. 3. It is contended that Bhiku died intestate about 10 years back. It is contended by the plaintiffs that their grandfather Gangaram was the exclusive owner of the suit property.” After his death his son became the exclusive owner and after Bhiku’s death the present plaintiff became exclusive owner of the suit property. The suit property is in possession of the defendant since life time of their grandfather. It is contended by the plaintiffs, that the defendants have no right, title or interest in the property, but they are occupying the suit house as licensee from plaintiffs grandfather Gangaram. It is contended that the notice dated 8.3.1989 was served on the defendant by their grand father Gangaram, calling upon them to deliver that possession after revoking the licence. It is further contended that defendant No. 1 continued to be in possession and in the year 1973, he had executed gift deed in favour of her daughter defendant No. 2. But according to them Deokabai cannot claim title on the strength of the gift deed. Thus, the plaintiff had filed suit for possession and consequential relief of permanent injunction.
6. The defendants combated the claim of the plaintiffs and contended that Chinnu died intestate in the year 1939, and he had half share in the suit property. It is contended that after the death of Chinnu, his widow Premabai came in possession of the suit property, and she became the exclusive owner of the same by virtue of Section 14 of the Hindu Succession Act, 1956. It is further contended that Premabai have executed a gift deed of the suit property in favour of her daughter Deokabai – defendant No. 2, and she became owner of the same by virtue of the said gift deed, and in such circumstances, the suit is liable to be dismissed.
7. Mr. Palshikar, the learned Counsel for the plaintiffs, contended that Premabai – defendant No. 1 cannot claim any share in the property because Chinnu died before coming into force of the Hindu Succession Act, and she had a right of maintenance only. Her possession on the premises was only in the nature of licensee. He contended that after the death of Chinnu property in question would devolve on the sole surviving coparcener – Gangaram and he would become the sole owner of the property and thereafter the plaintiffs would succeed to the suit property by inheritance and become exclusive owners. He contended that both the Courts below have committed an error of law in recording the finding that Premabai became the owner of the suit property by virtue of Section 14 of the Hindu Succession Act, and therefore the impugned judgment and decree passed by both the Courts below are not sustainable in law.
8. I have carefully considered the contentions canvassed by the learned Counsel for the plaintiffs. It is not disputed that Kalu died intestate long ago, and he had two sons by name Chinnu and Gangaram. Chinnu also died intestate in the year 1939 leaving behind him widow Premabai and daughter Deokabai. Gangaram has one son Bhiku. Bhiku died leaving behind him widow Jamnabai and one son Harishchandra.
9. It is not disputed that the house property which is the subject matter of this suit is ancestral property of Kalu, and therefore, it is obvious that Chinnu and Gangaram would be entitled to half share each, in the suit property. It is admitted position that Kalu as well as Chinnu died intestate, and therefore, after the death of Chinnu his half share in the house property came in possession of his widow – Premabai and daughter Deokabai and they continued to be in possession of the same, even after coming into force of the Hindu Succession Act, 1956.
10. It is necessary to produce Section 14 of the Hindu Succession Act, 1956. It reads thus:
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation. – In this sub-section “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gilt, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
11. The explanation to Section 14, would clearly reveal that the property possessed by a female Hindu would include both movable and immovable property acquired by a female Hindu in lieu of arrears of maintenance. In the present case it is not disputed that Chinnu died some time in the year 1939 leaving behind him widow Premabai who continued to be in possession of the suit property, as a limited owner. She had a limited interest in the property on account of maintenance, it would follow that she continued to be In possession of the said property, even after coming into force of the Hindu Succession Act, 1956 and therefore, it is obvious that she became exclusive owner of the suit property by virtue of explanation to Section 14 of the Hindu Succession Act, 1956.
12. It may be useful to refer the Division Bench decision of the Apex Court in the matter of Kalawatibai v. Soiryabai and Ors. wherein it has been observed in relevant paras as under:
9. Mention is necessary to be made in this; connection about observation in Gulwant Kaur v. Mohinder Singh that the Court in Bai Vijia’s case did not purport to lay down, that, “what was enlarged by Sub-section (1) of Section 14 into a full estate was the Hindu woman’s estate known to Hindu Law. When the Court uses the word ‘limited estate’, the words are used to connote a right in the property to which possession of the female Hindu may be traced, but which is not a full right of ownership”. Gulwant Kaur’s case was concerned with acquisition of right by wife, on entrustrnent of property in lieu of maintenance, after 1956, when the concept of widows’ estate or limited estate or even stridhana had ceased to exist. Therefore, what was necessary was being possessed of property, actual or constructive, by female Hindu under some right or title. Whereas Bai Vijia’s case was concerned with acquisition of right in property held in lieu of maintenance before 1956. Therefore a female Hindu could become absolute owner only if she was limited owner. Sub-section (1) of Section 14 deals with rights of female Hindus both before and after the Act came into force. Female Hindu could become absolute owner of property possessed by her on the date the Act came into force only if she was a limited owner whereas, she would become absolute owner after 1956 of the property of which she would otherwise have been a limited owner.
10. Reference may be made to Maharaja Pillai Lakshmi Ammal v. Maharaja Pillai T. Pillai where this Court while examining right of wife put in exclusive possession of the property with the right to take the income for her maintenance was held to have become full owner under Section 14(1) as she entered into possession after the death of her husband in 1955 and was in possession in 1956. The Court held that the right to utilise income for her maintenance must be “presumed to have resulted in property being given to her in lieu of maintenance”. On this finding the property being possessed on the date the act came into force as contemplated in the explanation, the widow being a limited owner became a full owner and the gift executed by her in favour of her daughter after 1956 was unexceptionable. The Court, however, while repelling the submission advanced on superficial conflict in Gulwant Kaur and Bai Vijia reiterated what was observed in Gulwant Kaur’s case. As already discussed Gulwant Kaur’s case related to acquisition of property after 1956, whereas in Bai Vijia it was acquired before 1956. The observations made in the two decisions must be understood in that context. Moreover in Gulwant Kaur’s case the ratio was founded on Jagannathan Pillai v. Kunjithapadam Pillai a decision which shall be adverted to later. But it too was concerned with acquisition after 1956. And the Bench while discussing scope of Section 14(1) observed (at p. 1495 of AIR) that the limited estate or limited ownership of a Hindu female would enlarge into an absolute estate or full ownership of the property in question in the following situation:
Where she acquired the limited estate in the property before or after the commencement of the Act provided she was in possession of the property at the time of the coming into force of the Act on June 17. 1956′.
None of these decisions, namely Gulwant Kaur (supra) or Maharaja Pillai (supra) or Jagannathan Pillai purported to lay down that the Section 14(1) contemplated enlargement of estate prior to 1956 of even those females who were not limited owners. According to Mulla’s Hindu Law (Sixteenth Edition, paragraph 174) every female who took a limited or restricted estate was known as limited heir. And according to every school except Bombay every female who succeeds as an heir whether to a male or female took a limited estate in the property. Even in Bombay a female who by marriage entered into Gotra (family) of the deceased male inherited a limited estate only. And in para 176 it is stated that incident of estate taken by every limited owner was similar to incident of widow’s estate. Mayne’s Hindu Law, (12th edition, para 671) too brings out the same by stating that the typical form of estate inherited by a woman from a male was compendiously known as the widow’s estate. And the limitation which applied to such estate applied to all estates derived by a female by descent from a male or female whether she inherited as daughter, mother, grandmother, sister or as any other relation. Even stridhana property according to Mulla created limited interest in its successors, except in Bombay in certain circumstances and a female inheriting stridhana took a limited interest in it and on her death it passed not to her heirs but to the next stridhana heirs of the female from whom she inherited.
11. Thus on plain reading of the section and its interpretation by this Court In various decisions a female Hindu possessed of the property on the date the Act came into force could become absolute owner only if she was a limited owner. This being the legal position it may now be seen if a Hindu widow could transfer or alienate widow’s estate by way of gift prior to 1956 and if so to what extent. And in such alienation what right or interest was created in the alienee. Did she become a limited owner so as to become a full owner under Section 14 of the Act ? A Hindu widow succeeding or inheriting any property from her husband or as widow of predeceased son, held limited interest known as Hindu women’s estate, prior to coming into force of 1956 Act, under the Hindu Women’s Right to Property Act, 1937. Since such an estate could not be alienated under Hindu Law except in certain circumstances and for specific purpose the holder of the estate was known as limited owner. The expression ‘limited owner’ thus could not be understood, except as it was interpreted and understood in Hindu Law. Could the same be said of a female donee or alienee? The Delhi High Court assumed that a female donee was a limited owner. Consequently, if she was possessed of the property on the date the Act came into force and her possession was not ‘without title’, she became an absolute owner. Basis for the decision was construction of the word ‘possessed’ by this Court in Gummalapura Taggina’s case (supra) wherein it was held that the word was used in widest connotation so that a widow, even if in constructive possession, was entitled to absolute ownership under Section 14 of the Act. Support was also drawn from converse case of Eramma (supra) as this Court negatived the claim of widow under Section 14 as her possession on the date the Act came into force was not legal but that of a trespasser. What the High Court lost sight of was that the claim of widow in Gummalapura’s case (supra) was upheld because the adoption made by her having been found to be invalid she was deemed to be in constructive possession on the date of the Act came into force. And Eramma’s case (supra) was concerned with a widow, who claimed to have inherited through son in State of Hyderabad where Hindu Women’s Right to Property Act did not apply on the date the son died. Consequently, it was held that “the provisions of Section 14 of the Art cannot be attracted in the case of Hindu female who is in possession of the property of the last male holder on the date of the commencement of the Act, when she is only a trespasser without any right to property”. The High Court overlooked the vital observation made in earlier part of the judgment to the effect. “In other words, Section 14(1) of the Act contemplates that a Hindu female who in absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of this Section.”
13. The plaintiffs contention that she was only a licensee of the property is required to be rejected because after the death of Chinnu in the year 1939, Premabai would be entitled to the right of maintenance in the said property by virtue of provisions of Hindu Women’s Right to Property Act, 1937 (Act No. XVIII of 1937). Hindu woman’s estate recognized a woman’s pre-existing Hindu law right to claim maintenance and the Legislature did not intend to create a new kind of interest in her favour nor intended to make her to become a coparcener, though her interest in the family property is to be the same as that of her deceased husband, except that it becomes the estate of the widow. Thus any property possessed by the female Hindu, whether acquired before or after the commencement of the Hindu Succession Act, 1956, shall be held by her as full owner thereof and not as a limited owner, and as per the explanation enacted to Section 14 of the Hindu Succession Act, the property includes both move-able and immovable properties acquired by the female Hindu in lieu of arrears of maintenance. The wording in the explanation “and also any such right held by her as stridhana immediately before the commencement of this Act”, would indicate that Premabai came into possession of the suit property after the death of her husband Chinnu in the year 1939, and therefore, she would become exclusive owner after coming into force of the Hindu Succession Act, 1956 because the Hindu Woman’s estate recognize a woman’s pre-existing Hindu law right to claim maintenance and the Legislature did not intend to create a new ground of interest in her favour nor intended to make her to become the coparcener, though her interest in the family property is to be the same, as that of her deceased husband, except that it becomes the estate of the widow.
14. It is not in dispute that Premabai had made a gift of the said property in favour of her daughter Deokabai – defendant No. 2 and the latter has also become the absolute owner of the said property, and acquired title to it, and this fact is not challenged by the plaintiff. No any other point is argued by the learned Counsel for the plaintiff. In such circumstances, it is obvious that the contention of the plaintiffs that Premabai was licensee in the suit property is devoid of any merit and liable to be rejected. In that view of the matter, it cannot be said that both the Courts below had committed any error of law, and therefore, no interference into the concurrent findings recorded by both the Courts is warranted, therefore the Second Appeal fails and stands dismissed with costs throughout.