THAKUR SHER SINGH Vs. VIJAY KUMAR SINGH

JUDGEMENT

(1.) THE factual background of the present second appeal is as follows : Certain lands belonged to three brothers, namely, Prakash Nandan Singh, Thakur Sher Singh and Sardar Singh. Prakash Nandan died in 1934. His widow, Vidyawati, died in 1978. THE only daughter of Prakash Nandan and Vidyawati, namely, Prakashwati, died in 1976 and she left behind three sons, namely, Vijai Kumar Singh, Anil Kumar Singh and Rajiv Kumar Singh. THE aforementioned Sardar Singh left a son, Digendra Kumar Singh. A suit was filed by the three sons of Prakashwati that Vidyawati was given the suit-property on the basis of family arrangement in 1935 between herself and her two brothers- in-law, Sardar Singh and Sher Singh, for her maintenance. She was in possession of the house and was realising rent from the tenants living In the house. Before her death in 1978, Vidyawati had executed a will in favour of her three grandsons for the said house and after the death of Vidyawati, they became the owners of the suit-property. Sher Singh and Sardar Singh, however, made a prayer illegally for mutation of their names in the municipal records for the suit property and their names were mutated illegally. THE plaintiffs sued for declaration of title and confirmation of possession on the suit-property. THEy had made a sale of the suit-property in favour of Ram Murti Devi and after sale, she was in possession as owner thereof. THE suit was contested by Thakur Sher Singh and his nephew Digendra Kumar Singh on the ground that Vidyawati was only a limited owner in terms of the family arrangement and her right could not have ripened into that of a full owner and she had no right to make a will for the suit-property nor had the plaintiffs any right to sell the same to Ram Murti Devi.

(2.) THE suit was decreed against the defendants in Suit No. 694 of 1980 on 19.3.1988 by order of the IVth Addl. Civil Judge, Meerut. THE first appeal that was filed before the Illrd Addl. District Judge, Meerut. numbered as No. 354 of 1988, was also dismissed by the judgment and decree dated 11.1.1994 and, thereafter, the present second appeal has been filed.

(3.) IT appears that sub-section (1) makes a female Hindu a full owner of the property possessed by her at the date of commencement of this Act; but subsection (2) makes an exception to this general rule and states that the aforesaid general principle shall not apply to any property acquired by way of gift or under a will or under any other instrument or under a decree or order of a civil court or under an award where the terms prescribe a restricted estate in such property. The learned counsel for the appellants submits that the right by way of possession in favour of the widow, Vidyawati, was created by the family arrangement only and it was a case to be covered by sub-section (2) of Section 14 and not by sub-section (1). He places reliance on a decision of the Supreme Court in Smt. Naraini Devi v. Ramo Devi and others, AIR 1976 SC 2198. IT was a case where a widow acquired a right under an award dated 4.1.1946 and the right was restricted to the extent of receiving rent of a house property and the husband had died in 1925 before the enactment of the Hindu Women's Rights to Property Act. The Court held that the widow had no pre-existing right or interest in the house and the case was covered by Section 14 (2) and not by Section 14 (1). The learned counsel also relied on a decision of the Allahabad High Court in Smt. Narayani Devi v. Sonpal and others. 1986 ALJ 146. In this case, it was held that there was no presumption that every single property obtained by a Hindu widow by testamentary or intestate succession from her husband must be deemed to have been acquired by her for her maintenance. If the will or instrument or decree which prescribed a restricted estate in property did not merely recognise pre-existing right of a Hindu widow, then sub-section (2) of Section 14 would be attracted and the law would deprive the widow of the benefit contemplated under sub-section (1) of Section 14. In this case-law, however, it was observed that if it was by way of recognition of a pre-existing right, sub-section (1), rather than sub-section (2) of Section 14 would apply.