ROOP DEVI Vs. SULTAN SINGH

JUDGEMENT

(1.) Appellant's husband owned suit property. It died on 27-2-42 leaving behind appellant and 3 sons. They partitioned the property. The share which appellant got, it was said that she was owner for life only. After the coming into force of Hindu Succession Act, 1956, she in 1958 applied to MCD that she had becomes full owner of her share and her name be also mutated. It was allowed. Her similar request to DDA was rejected. She in 1967 sued DDA & Ors. for declaration which was decreed. In 1971, heirs of one of the sons brought a suit that appellant was a limited owner and on her death they would inherit the property. Suit was dismissed in 1973 and appeal against same is pending. In 1975 appellant sued heirs of Murarilal for possession for portion of her property in their possession. Appellant died during pendency of suit and on the basis of a will, her L R's were brought on record. The defendants, contention was that appellant had not become full owner. Issues framed were :

(2.) With the background of state of facts mentioned above, there is little doubt that in the year 1956 when the Hindu Succession Act came into force, Roop Devi held existing ownership right in the property in dispute. She had been allotted the same in the partition effected between her and the three sons in early forties soon after the death of her husband. It was not a case of her getting maintenance for her life time under the old Hindu Law. Instead the Hindu Women's Right to Property Act 1937 had come intKo force, and she had become entitled to equal share as any her son at the time of the partition. Of course, it was enjoined that the allotment of this property to her would ensure for her life, and she was not entitled to alienate that in any manner. In other words, the title conferred was strictly of the nature as was well understood in the then existing Hindu Law of Limited estate. The property would have devolved intestate on her three sons, or the descendants in case any of them pre-deceased her, and she was not competent to bequea the that under a will. The complexion, however changed with the enactment of the Hindu Succession Act. S. 14(1) thereof rendered such Limited ownerships as fulfledged ownerships.

(3.) S. 14(2) which saves properties from the applicability of sub-section ,(1) and is in the nature of an exception, has reference to those cases of grants where the interest in the guarantee is created by the grant itself or, in other words, where the gilt, will, instrument, decree, order or award is the source of origin of the interest created in the guarantee. Where, however, the instruments referred to above are not the source of interest created but are merely declaratory or definitive of the right to property antecedently enjoyed by the Hindu female, sub-section (2) has no application, and it matters not if in such instruments it is specifically provided in express terms that the Hindu female had a limited estate or that she shall not aliente the property or that the property would revert on her death to the next reversioner, such terms are merely the reiteration of the incidents of the Hindu Law applicable to the limited estate. (See P. Pattabiraman v. P. Ammal, 1970 Mad. 257, and Banusaheb v. Smt. Gangabai 1972 Born. 16). The Supreme Court too had the occasion to consider the implication of section 14 of the Hindu Succession Act in the context of a property given to a female in lieu of maintenance, and observed that where a property is acquired by Hindu female at a partition or' or in lieu of right of maintenance, it is in virtue of pre-existing right and such acquisition would acquire full ownership u/s 14(1). The operation of sub-section (2) was held confined to cases were property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property (see Vaddeboyina v. Vaddehoyina 1977, S.C. 1945 and Bal Valid v. Thakorbai 1979, S.G. 933)