BENI BAI Vs. RAGHUBIR PRASAD

JUDGEMENT

(1.) Heard Sri P. N. Tewari for the appellant and Sri. G. P. Bhargava for the respondent. The suit was filed by the plaintiff-respondent for a declaration that defendant No. 2 Smt. Bhagwati Bai had illegally gifted the property in dispute to defendant No. 1, her daughter. The plaintiff was entitled to succeed to the property on the death of Smt. Bhagwati Bai defendant No. 2, under a register ed will deed dated 16-12-1935, exeouted by Sri Mannhu Dubey, the owner of the property. The suit was resisted by the defendants. Smt. Bhagwati Bai expired on 14-10-1972. Smt. Beni Bai was the heir, who was already on record. The trial Court dismissed the suit holding that Smt. Bhagwati Bai was in possession of the disputed property as a limited owner being widow of Nannhu Dube and her right matured into absolute right under Section 14 of the Hindu Succession Act, 1956. It was further held that sub-section (2) of Section 14 was not applicable to the case as by that will only the right available to Smt. Bhagwati Bai at that time was recognised. The trial Court relied upon the case of Nirmal Chand v. Vidyawati (1969 R. D. 303.), It was held that the right given to Smt. Bhagwati Bai under the will was merely a recognition of her pre-existing rights under law and no new right was given to her. It accordingly held that Smt. Bhagwati Bai being an absolute owner under Section 14 (1) of the Hindu Succession Act had every right to gift the property in favour of Smt. Beni Bai, her daughter. The lower appellate Court set aside the decision and after reading the will came to a conclusion that Smt. Bhagwati Bai was given only a right of residence in the house No. 27 for her life and not a right of maintenance from that After relying upon several cases it held that in view of sub-section (2) of Section 14 of the Hindu Succession Act Smt. Bhagwati Bai could not acquire absolute rights in respect of the disputed property. Smt. Beni Bai has come in appeal. From the will it appears that Nannhu Dube had three properties. Two were immovable properties i. e. , houses No. 27 and 32 and the third was 1/4 right in the 'vrit'. of Temple of Sri Shitla Devi Ji. From the will it appears that Sri Nannhu Dube had no son. He had a nephew Raghubir Prasad, plaintiffs, and one daughter Beni Bai. He executed the will giving out that house No. 27 was to go to Raghubir Prasad, house No. 34 to be given to daughter Smt. Beni Bai and the share in the 'vrit' of the Temple to be given to one Munni Lal. All this devolution was to take effect after the death of the testator, i. e. , Nannhu Dube and in case his wife Mst. Bhagwati Bai survived him, after her death. House No, 27 was mentioned in the will as the residential house. The relevant portion of the will has been reproduced in the judgment of the lower appellate Court only partly. It will be expedient to reproduce the portion of the will relating to Smt. Beni Bai as well. Those averments are contained in paras 1, 2 and 3 of the will which read as under:- @hindi It is not disputed that in case the property was given to widow under any award, will, gift settlement, decree etc, in recognition of the rights available to her under law at that time, sub-section (2) of Section 14 of the Hindu Succes sion Act would have no application. What has been argued by the learned counsel for the respondent was that the will gave the properties of various persons. House No. 27 that is in dispute had been given to the plaintiff. House No. 32 was given to Smt. Bent Bai, the daughter in the share in the 'vrit' of the Temple was given to a third person Munni Lal. There was no ambiguity in the will and the intention of the testator was to give away these properties to the persons mentioned in the will. The will had been executed on 16th December, 1935. Only one clog was placed on the right of succession under the will that the succession would open not merely on the death of the testator, but in case his wife survived him, after the death of the wife as well. Under the circumstances it cannot be said that any existing right of Smt. Bhagwati Bai, the wife, was recognised by that will. Only devolution under the will was postponed till death. The learned counsel for the appellant has mainly relied upon the case oiveddeboyina Tulsamma and others v. Veddeboyina Sesha Reddy (dead) by L. Rs. (2) What has been held in that case was summed up in para 71 which is reproduced below: - (i) That the properties in suit were alloted to the appellant Tulasamma on July 30, 1949 under a compromise certified by the Court. (ii) that the appellant had taken only a life interest in the properties and there was a clear restriction prohibiting her from alienating the properties. (iii) that despite these restrictions, she continued to be in possession of the properties till 1956 when the Act of 1956 came into force and (iv) that the alienations which she had made in 1960 and 1961 were after she had acquired an absolute interest in the properties". That principle of law is not disputed, but as the construction of the present will goes, the operation of the will was postponed till the death of the widow and not that the widow was given any particular right under the will. No right of maintenance or residence or any other thing was mentioned in the will as such. The learned counsel for the appellant argued that in the year 1935 when the will was executed, Smt. Bhagwati Bai was entitled to a son's share in the husband's property and she was also entitled to be maintained by the husband irrespective of the fact whether he had any property or not. I fully agree with him, but that stage could have come only if there was a partition or she was not being maintained by Nannhu Dube, who was alive. The learned counsel then placed reliance on the provisions of Hindu Women's Right to property Act. 1937. I am afraid that the provisions of that Act cannot be applied to either the defendant Smt. Bhagwati Bai or to the property in dispute. Section 5 of the Act reads as under:- "for the purpose of this Act, a person shall be deemed to die intestate in respect of all property of which he has not made a testamentary dis position which is capable of taking effect". Consequently even though Sri Nannhu Dube expired in the year 1943 Smt. Bhagwati Bai could not get any rights in respect of the disputed property under the Hindu Women's right to property Act, as the will of Nannhu Dube was admittedly in existence. Under these circumstances I agree with the finding of fact recorded by the Court below that the will of Nannhu Dube in favour of Bhagwati Bai was not in recognition of any right of the widow under law at the time of its execution. Really speaking the operation of the will was postponed till the death of Smt. Bhagwati Bai and the property was given to the persons mentioned in paras 2, 3 and 4 of the will. The learned counsel lastly argued that the plaintiff has filed the suit merely for a declaration that the gift executed by Smt. Bhagwati Bai in favour of Smt. Beni Bai was null and void. He did not seek any possession over the property though he should have sought. Both the Courts below have come to a finding that during the life time of Smt. Bhagwati Bai, the plaintiff could not have sought possession. No doubt after her death the plaint could be amended but as the suit as such was maintainable, it could not be hit by provisions of Section 34 of the Specific Relief Act. I agree with the findings of the Court below and I do not find any substance in the argument of the learned counsel. In the result, I do not find any merits in the appeal, which is hereby dismissed. There will, however, be no order as to costs. .