KUSUMGAURI WD O GANPATRAM THAKORDAS Vs. UMIABEN

JUDGEMENT

(1.) In all these appeals which are referred to us the question raised for our determination is whether the right of maintenance and residence which a Hindu widow whose husband has died prior to the coming into force of Hindu Women Rights to Property Act 1937 has can be held to be property possessed by her as a limited owner so as to attract the provisions of sub-sec. (1) of sec. 14 of the Hindu Succession Act 1956 (hereinafter referred to as the Act). These appeals were argued together and we shall dispose of them by this common judgment.

(2.) In order to understand the question at issue we will first state the facts of Second Appeals Nos. 209 of 1970 and 554 of 1970. The property in dispute therein is house bearing No. 2047 situated in Ward No. 3 Salabatpura Surat. This house originally belonged to one Thakordas who died in the year 1931 leaving behind him his widow Devkorben son Ganpatram Ganpatrams wife Kusumben and two daughters namely Umiaben and Taraben. Devkorben resided with her son Ganpatram. Umiaben and Taraben were got married. Ganpatram died on October 1 1962 leaving behind him his wife Kusumben and mother Devkorben. Ganpatram made a will dated September 4 1962 and gave the suit property to his wife subject to the conditions that she has a life interest therein and that if she re-married the suit property was to devolve upon his mother. Under the will Devkorben was also given only life interest. The suit property was ultimately given absolutely to the Surat Borough Municipality with the condition to use the same for the purposes of a school building or maternity home. It was provided in the will that during the time when the property was in possession of his wife Devkorben had right to reside in the house and she was to be maintained by his wife. The further direction in the will was that if Devkorben and his wife Kusumben could not reside together amicably in the house Devkorben was to be given a part in the house for residence and a specific amount for her maintenance. After the death of Ganpatram the two ladies resided amicably in the house. Devkorben died on December 19 1963 She had made a will in the year 1950 and it was stated in the will that she had no interest in the suit property. Umiaben daughter of Devkorben filed Civil Suit No. 246 of 1967 in the Court of the Civil Judge Junior Division Surat alleging that the dwelling house is ancestral property that on the death of Thakordas the property had gone to Ganpatram that Ganpatram and Devkorben each had one half share in the house that on the death of Ganpatram share of Devkorben was 3/4 that on the death of Devkorben she and Taraben are entitled to succeed to the share of Devkorben in the suit house that Kusumben has one half share in the house and the plaintiff and defendants Nos. 1 and 2 has each one fourth share etc. It was also prayed that the property should be divided between the parties and they be given possession of the part of the property going to their respective shares. This claim in the suit was opposed by Kusumben as well as the Municipal Corporation of Surat. The trial Court dismissed the suit of the plaintiff holding that Bai Devkorben had merely a right of residence in the suit house that she had no proprietary interest therein and that being so the plaintiffs claim to get partition of the suit property had no basis. Umiaben filed Civil Appeal No. 227 of 1968 which was allowed by the District Judge Surat holding that on coming into force of the Hindu Womens Right to Property Act 1937 (hereinafter referred to as the Act of 1937) she had a right of residence in the suit house she had also a right of maintenance which was attached to the suit house and she held the share as a limited owner. He further held that the Act of 1937 was repealed by sec. 31 of the Hindu Succession Act of 1956 and under the provisions of sec. 14(1) of the Act the share which she was holding as limited owner assumed the character of ownership. He therefore decreed the suit of the plaintiff holding that the plaintiff and defendant had 1/6th share and Kusumben who was defendant No. 1 in the suit had 4/6th share in the suit house. Being aggrieved by this decree Kusumben has filed Second Appeal No. 209 of 1970 and the Municipal Corporation of the City of Surat has filed Second Appeal No. 554 of 1970.

(3.) The answer to the question raised before us mainly depends upon the interpretation of sec. 14(1) of the Act which is as follows:-