SHARBATI DEVI Vs. SATENDRA PRAKASH SINGHAL

JUDGEMENT

(1.) This is a defendants' second appeal arising out of the suit filed by the plaintiff for a declaration that he is the owner of house No. 188 situated in Mohalla Durga Bari, Sadar Bazar and also of shop Nos. 203, 206, 206a and 207 situated in Mohalla Rangsaz, Meerut Cantt. The plaintiff also claimed a relief for recovery of possession over that portion of the house which was in the occupation of the defendants. Mesne profits, pendent elite and future interest at the rate of Rs. 10/- per month were also claimed from the defen dants. According to the plaint allegations Baldeo Sahai had three sons, Roorey Mai, Mukand Lal and Raghubar Dayal (the plaintiff ). They constituted a joint Hindu Family. Raghubar Dayal died and he is represented by his sons and daughters. Mukund Lal died without any male issue. Roorey Mal died in 1927 leaving his wife Smt. Kalawati. Smt. Kalawati met her end on 23rd December, 1962 leaving behind her daughter Smt. Sharbati Devi, who is the defendant in the instant litigation. The plaintiff claimed to be the sole owner of the joint Hindu Family properties on the basis of the survivorship. It appears that on 3-2-1931 Smt. Kalawati instituted suit No. 18 of 1931 against Raghubar Dayal in the Court of the Sub-Judge Meerut for a declaration of Rs. 40/- per month. She also claimed a right of residence in the house in suit. This suit was compromised on 4th July, 1933. On the basis of this compromise it was agreed that Raghubar Dayal would pay Rs. 2000/- as arrears of main tenance allowance and deliver possession over the house in suit and the four shops aforesaid to Smt. Kalawati. She was to hold this property as a limited owner during her life time and was entitled to realise rent in lieu of mainten ance allowance. She was also given a right of residence in the house. The compromise was duly varifiedand a decree was passed in terms thereof. Omitting the unnecessary details it is sufficient to add that Smt. Kalawati died on 22/23 December, 1962. The plaintiff, thereafter became entitled to recover possession of the suit property. Hence the instant suit. The defendants Smt. Sharbati Devi and her husband Lala Murari Lal con tested the suit and filed a joint written statement. . Their case was that after the death of Baldeo Sahai, his three sons have separated. Roorey Mal died as separated member of the family and his properties were inherited by his widow Smt. Kalawati. It was also alleged that during the pendency of Suit No. 18 of 1931, the joint properties were partitioned between Smt. Kalawati and Raghubar Dayal. In this partition Smt. Kalawati was allotted the house and the shops in suit and her name was mutated in the records of the Cantonment Board. It was further alleged that she had perfected her title by adverse possession and she also became the sole owner of the disputed property under the Hindu Succession Act, 1956. Lala Murari Lal, defendant No. 2 did not claim any independent title or interest in the suit property but since he also resided in the premises in suit, he has been impleaded as a defendant. Pleas of Section 42 of the Specific Relief Act and multifariousness were also taken in the written state ment. The trial Court decreed the suit of the plaintiff for a declaration that he was the owner of the house and the shops in suit and was entitled to reco very of possession over the portion in the house claimed by him. He was awarded pendentelite and future mesne profits at Rs. 7. 50 per month till the date of the delivery of the possession. Aggrieved thereby the. defendants filed an appeal which has also been dismissed by the Additional District Judge. Meerut, on 5th December, 1974. Hence this second Appeal. On the question whether the property in dispute is joint property of the parties or the separate property of the husband of Smt. Kalawati, both the Courts below have given concurrent findings that the property was joint family property. That question now is a closed question. The sole question for con sideration now is whether as a result of the compromise decree in suit No. 18 of 1931 the defendant Smt. Kalawati would be deemed to be the absolute owner or the limited owner of the suit property. In this connection, it would be rele vant to refer Section 14 of the Hindu Succession Act, 1956 which runs as follows: - "14. Property of a female Hindu to be her absolute property (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.-In this sub-section ''property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of mainten ance, or by gift from any person, whether a relative or not before, at or after her marriage, or by her own skill or exertion, or by purchase, or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (1) Nothing contained in sub-section (2) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. " The question which arises is whether the compromise decree which was entered into between the parties would fall within the explanation to Section 14 or would be covered by sub-section 2 of Section 14. A perusal of this com' promise indicates that a sum of Rs. 2,000/- has been agreed to be paid by the plaintiff to the defendant in satisfaction of the arrears of maintenance due to her. She was also permitted to reside in the house in dispute and to recover rent from the four shops, 203, 206, 206a and 207 during her life time in lieu of maintenance. The liability for the payment of the Municipal taxes were also fastened upon her. It is also mentioned in this compromise that after her death the plaintiff would become the owner of the property in question and that the defendant would have no right to transfer the property or to encumber the same in any manner whatsoever. There can be no doubt on a reading of the aforesaid compromise that severe restrictions were placed by the defendant on the absolute rights of ownership of Smt. Kalawati. The question is, can the placing of such restrictions wrench the case out of the purview of the explana tion to Section 14 of the Hindu Succession Act so as to make sub- section (A. I. R. 1970 S. C. 1963) of Section 14 of the Act applicable. Counsel for both the parties have cited case law in their support. Counsel for the respondents has relied upon the following three decisions Eramma v. Veerupana and others Badri Pershad v. Smt. Kama Devi (A. I. R. 1970 S. C. 1963) and Mst. Karmi v. Amru and others, (A. I. R. 1971 S. C. 745) On the other hand, counsel for the appellants has placed reliance on much later decisions of this Court which have been reported in Vaddeboyina Tulasamma and others v. Vaddeboyina Sesha Reddi (A. I. R. 1977 S. C. 1944) and Bai Vajia v. Thakorbhai Khelabhai and others. (A. I. R. 1979 S. C. 993) The facts of the instant case were similar to the facts in the Supreme Court case reported in Vaddeboyina Tulasamma and others (supra) wherein fetters had been placed on the exercise of absolute rights by the widow in pursuance of a compromise decree as in the instant case. The question arose whether the placing of these restrictions would attract the application of Section 14, sub-section (2) of the Hindu Succession Act. It is to be noticed that the arrears of Rs 2,000/- which had been given in the instant case was in satisfac tion of antecedent rights of maintenance which existed with Smt. Kalawati, widow of Poorey Mal and as such the view that has been taken by the Supreme Court was that sub-section 2 of Section 14 would not be attracted because the decree in question did not by itself originate or create any rights, it merely confirmed already existing rights. The Supreme Court went to the extent of observing that these absolute restrictions which had been placed on the right of the widow must be ignored so that the widest scope may be given to the application of the Explanation of Section 14 (1) of the Act and the purpose for which the Act had been framed may not be frustrated. In this connection, it would be pertinent to quote the following passage from the aforesaid deci sion:- "sub section (2) must, therefore, be read in the context of sub-section (1) so as to leave as large a scope for operation as possible to sub-section (1) and so read, it must be confined to cases where 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. 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 acquisi tion would not be within the scope and ambit of sub-section (1), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property. " A similar view has been expressed by the Supreme Court in Bai Vajia v. Thakorbhai Chelabhai and others (supra):- "the widow's right to maintenance, though not an indefeasible right to property is undoubtedly a "pre- existing" right. It is true that a widow's claim for maintenance does not ripen into a full fledged right to property, but nevertheless it is undoubtedly a right which in certain cases can amount to a right to property where it is charged. It cannot be said that where a property is given to a widow in lieu of maintenance, it is given to her for the first time and not in lieu of a pre-existing right. The claim to maintenance, as also the right to claim property in order to maintain herself is an inherent right conferred by the Hindu law and, therefore, any property given to her in lieu of maintenance is merely in recognition of the claim or right which the widow possessed from before. It cannot be said that such a right has been conferred on her for the first time by virtue of the document concerned and before the existence of the docu ment the widow had no vestige of a claim or right at all. " In view of the aforesaid exposition of the law which has been laid down by the Supreme Court, I am of the opinion that the Courts below have acted illegally in the exercise of their jurisdiction in decreeing the plaintiffs suit. This appeal by the defendants is accordingly allowed and the decree of the Court below is set aside with costs of this Court only. .