BENI BAI Vs. RAGHUBIR PRASAD

JUDGEMENT

(1.) One Nanho Dubey, father of the appellant herein, was the owner in possession of House No. 27 situate in Mohalla Purani Kotwali, in the town of Jhansi. During his lifetime Nanho Dubey executed a Will on 16-12-1935 in respect of his properties, including House No. 27 which was duly registered. It was the last will of Nannhu Dubey whereunder Raghubir Prasad - the respondent herein, was to be the owner of the House No. 27 only after the death of testator's wife Smt. Bhagwati Bai. Smt. Bhagwati Bai, widow of Nanho Dubey was given only life interest in the said house in lieu of her maintenance. Nanho Dubey died in May, 1943. After the death of the testator, his widow Smt. Bhagwati Bai entered into the possession of the house for her lifetime. On 28-3-1962, Smt. Bhagwati Bai executed a Gift Deed in respect of House No. 27 in favour of her daughter who is the appellant before us. It is at this stage, the plaintiff-respondent filed a suit for declaration that the Gift Deed dated 28-3-1962 executed by Smt. Bhagwati Bai in favour of her daughter is illegal and void. The trial Court dismissed the suit on the ground that Smt. Bhagwati Bai having possessed the house in lieu of her pre-existing right she became the absolute owner under sub-section (1) of Section 14 of the Hindu Succession Act (hereinafter referred to as "the Act") and the Gift Deed executed by her was valid. The First Appellate Court allowed the appeal and decreed the suit on the premise that the present case is to govern by sub-section (2) of Section 14 of the Act as the source of right was conferred for the first time on Smt. Bhagwati Bai by virtue of the Will. The judgment of the First Appellate Court was affirmed by the High Court in the second appeal.

(2.) Learned counsel appearing for the appellant urged that once Smt. Bhagwati Bai- widow of Nanho Dubey had been given the right of possession in lieu of her maintenance, it was in recognition of her pre-existing right. The said limited right was transformed into an absolute right by virtue of sub-section (1) of Section 14 of the Act and as such she was legally competent to gift the property in favour of her daughter. On the other hand, the contention on behalf of respondent is that since the widow of Nanhu Dubey got the right by virtue of a Will for the first time, her rights would be governed by sub-section (2) of Section 14 of the Act and in that case, she was not legally competent to execute the Gift Deed in favour of the appellant.

(3.) According to old Shastric Hindu law, marriage between two Hindus is not a contract but a sacrament. The marriage is regarded as a holy union of wife and husband and by such union the wife becomes part and parcel of the husband. Under the Shastric Hindu law, after marriage it is a pious obligation on the part of the Hindu husband to maintain his wife during his lifetime and after his death the widow is to be maintained out of the property of the husband if the husband has left any property. This was on account of spiritual relationship between a Hindu husband and wife. This principle was statutorily recognized by the enactments known as Hindu Women's Rights to Property Act, 1937 and Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946. Under these two Acts, the right to maintenance of a Hindu widow was preserved as a pre-existing right. After independence it was felt necessary to assure the equality of right in property to a Hindu female and to remove the artificial disparity in right to property where a male was entitled to obtain full ownership in the property and a Hindu female would only be contained by limited ownership because of the restrictions imposed on her by the Hindu law. With this object in mind, Parliament enacted The Hindu Succession Act, 1956. After the Act came into force, the question arose whether the right of maintenance given to a widow would crystalised into a full-fledged right by virtue of Section 14(1) of the Act. After a number of decisions by this Court, the said question is no longer res integra.