BABY Vs. PRABHAVATHI

JUDGEMENT

(1.) The facts are not seriously in dispute in this second appeal filed by Baby, the additional second defendant impleaded as the legal representative of the 1st defendant Jambula who died during the pendency of the proceedings in O.S. No 90 of 1967 on the file of the Munsiff of Cochin. Plaint schedule item No. 1. consisting of 16 cents of land was purchased by one Sankara Shetty and Yogiyar Shetty who were members of a Hindu undivided family. The 1st defendant's mother Savithri was the widow of Sagara Shetty, the brother of the said Sankara Shetty Sankara Shetty had put plaint schedule item No. 1 into the possession of Savithri in lieu of maintenance due to her; and Savithri had got constructed a house described as item No. 2 in item No. 1 property. These facts are, seen stated in Ext. P1 mortgage deed dated 6-12-1939, executed by Savithri in favour of one Narayanan Shetty, though no document evidencing the terms on which item No 1 was put into the possession of Savithri appears to be available on record. This question need not, however, detain us inasmuch as possession of item No. 1 by Savithri, her having got constructed the house item No. 2 and her having executed Ext. P1 possessory mortgage dated 6-12-1939 in favour of Narayana Shetty are all admitted facts. Savithri had ' instituted a suit, O.S. No 115 of 1957 on the file of the Munsiff of Cochin, for redeeming Ext. P1 mortgage. The Trial Court dismissed the suit as per Ext. P11 judgment dated 3-10-1958; in appeal A. S. No. 9 of 1959 the Sub Court of Cochin as per Ext. D1 judgment dated 19 6 1959 decreed the suit in reversal of the decision of the Trial Court. Though a second appeal S A. No. 85 of 1960 was filed, it would appear that during the pendency of the second appeal Savithri died, and it was dismissed for default, thus allowing Ext. D1 judgment and the decree pursuant thereto to become final. Thereafter the legal representative of Savithri filed E. P. No. 1245 of 1962 in the Munsiff's Court, Cochin for execution of the decree granted in pursuance of Ext. D1 judgment The execution court dismissed the petition taking the view that it was barred by limitation as contended for by present plaintiffs as respondents therein. In appeal, AS. No. 3 of 1964, on the file of the Subordinate Judge of Cochin, the maintainability of the petition was, however, upheld, holding that the pendency of the proceedings in appeal and second appeal had saved limitation, and overruling the plea of limitation raised by the respondents herein. S.A. No. 1568 of 1964 filed by the respondents herein (plaintiffs in the present suit) was dismissed by this Court by Ext. P13 judgment dated 27-1-1967. In paragraph I of Ext. P13 judgment Raman Nayar J., as he then was, who disposed of the matter, has observed as follows:

(2.) The main question that falls for decision is whether by virtue of the provisions contained in S.14(1) of the Hindu Succession Act, 1956, hereinafter referred to as the Act, Savithri had acquired absolute right in item No. 1 which she obtained in lieu of maintenance from Sankara Shetty, the brother of her deceased husband. The court below took the view that under the Act a Hindu widow is entitled to have only a life estate in the property that comes into her hands as a maintenance allottee. On this reasoning it was concurrently held that the interest Savithri had in the property came to an end with her death, the property was to revert to her husband's family, and, therefore, the right to enforce the redemption decree in O.S. No. 116 of 1957 pursuant to Ext. D1 judgment, did not survive her death to be pursued by the defendant. Reliance was also placed on the decision of the Supreme Court in Eramma v. Veerupana & others (AIR 1966 SC 1879) where it was observed as follows:

(3.) The courts below, I am afraid, did not approach the question relating to the nature of the right Savithri had in the property in the proper perspective. Sub-s.(1) of S.14 of the Act is comprehensive enough to cover every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance; and where such property was possessed by her on the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property. Sub-s.(2) is more in the nature of a proviso or exception to sub-s.(1). There is no justification for giving a rigid construction to the sub-section without making a purposive approach for giving effect to the intendment of the legislature. The operation of sub-s.(2) is to be confined to cases where properties are 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. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre existing right; and such an acquisition would not fall within the ambit of sub-s.(2). This position is now well settled by the decision of the Supreme Court in Thulasamma v. V. Sesha Reddi (AIR 1977 SC 1944), followed in a subsequent decision in Bai Vajia v. Thakorbhai Chelabhai (1979 (3) SCC 300).