JAGANNATHPURI GURU KAMALESHWARPURI Vs. GODABAI

JUDGEMENT

(1.) THIS second appeal raises an important question relating to the interpretation of section 14 (2) of the Hindu Succession Act, 1956, under the following circumstances:-One Kamaleshwar Puri died on 23rd March 1938, leaving behind him two widows - Godabai, and Rangubai- and a fairly large estate. Godabai, the senior widow, adopted Defendant No. 2 Jagannathpuri to has deceased husband. The date of adoption does not appear on record, but is of on consequence. Some time after the adoption, the parties found that they cannot pull on together. Hence partition-deed (exhibit P-11) was executed between the two widows and the adopted son, on 13th April 1950. Defendant No. 2 the adopted son, was minor at that time and was represented by a guardian. After attaining majority, Defendant No. 2 has not disowned the partition, but the present litigation has continued on the basis that the Defendant No. 2 accepts that partition as a good and binding partition on all. In that partition, the estate of Kamaleshwarpuri was divided into three different portions. The partition-deed recited that each one of the parties to the partition took the estate mentioned against his/her respective name, as full owner. However, there is a further clause in the partition-deed that all the three agreed that none of them will sell the property. It is further stated that this condition is being put because the property cannot be sold or otherwise disposed of during the lifetime of the two widows; If any alienation is done by any one of them, it will be considered void according to the agreement incorporated in this document. The three persons as heirs of Kamaleshwarpuri were in possession of their respective shares from 13th April 1950, and were enjoying the produce of the property. After the passing of the Hindu Succession Act, 1956, Godabai, the senior widow, desired to sell the property. She was prevented by Defendant no. 2 Jagannathpuri. Hence, she filed a suit for a declaration that the property allotted to her on partition, under exhibit p-11, now be longs to her fully and the effect of the Hindu Succession Act is to enlarge her estate into full estate. The condition in the document, exhibit P-11, restraining her from alienating the property either by sale or otherwise, is unlawful and cannot bind her. That condition has become inoperative. In such a suit, she impleaded her co-widow Rangubai as Defendant no. 1 and her adopted son Jagannathpuri an defendant No. 2. He was already aged 24 when the suit came to be instituted. The only defence that is raised for the purpose for defeating the suit claim is that the partition is a valid and binding partition; the condition in exhibit P-11, that none of the parties to the partition will sell or otherwise dispose of the property is a valid and binding condition. It is alleged that the provisions of the Hindu Succession Act, 1956, do apply to the present case, but it is the view of Defendant No. 2 that the document of partition falls within the purview of sub-section (2) of section 14 of the Hindu Succession Act and as such, the terms and conditions in exhibit P-11 bind the parties and the estate.

(2.) ON these pleadings, the learned trial Judge came to the conclusion that the estate given to the Plaintiff Godabai under exhibit P-11 is a restricted estate. This is because there is a condition not to sell or otherwise dispose of the property during her lifetime. The trial Court further held that the plaintiff, a Hindu widow, is already possessed of property when the Hindu Succession Act came into operation and this possession is related to a partition in 1950, under exhibit P-11. However he thought that the instrument of partition is included in the "other instrument" mentioned in sub-section (2) of section 14 and due to the effect of sub-section (2) of section 14, the limited or restricted estate obtained by the plaintiff filed her appeal in the District Court Amravati. The learned District Judge, how however, took the contrary view. According to him, the estate was enlarged into full title under the provisions of sub-section (1) of section 14 because the property came to the Plaintiff under a partition-deed. The acquisition contemplated by sub-section (2) of section 14 is an acquisition of title, where there was no prior title and the title obtained, for the first time, by an instrument like a gift-deed or will or such other instrument, similar to these. In that view of the matter, the appeal was allowed and the plaintiff's suit came to be decreed. Being aggrieved, Defendant No. 2 has filed this present appeal.

(3.) SHRI Kalele, who supports the decree of the first Appellate Court, has two-fold approach to the dispute between the parties. Exhibit P-11, according to him, is the basic document which must be properly interpreted in order understand and appreciate the real intention of the parties. In the opening paragraph, exhibit P-11 describes the relationship between the parties and the fact that the property to be divided belonged to deceased Kamaleshwarpuri. It then recites that the parties to the deed are unable to carry on amicably and, therefore, they have decided to separate the properties and to divide the joint Hindu family. Then follows the recitals relating to properties given to each individual. At the end of the description of everybody's property, there is a uniform recital that the person concerned shall get his name entered in the record of right as to the properties allotted to him and thereafter, he will not claim any right at all towards the properties allotted to the other persons. After such recitals at the end of the description of the property given to each one of them, follows a further paragraph, which is the most important portion of this document requiring interpretation. It is better to translate that portion as the original appears in Marathi. It is as follows:-"in this way, we have divided the property and each one has obtained separate possession of the estate allotted to him or her as full owner according to this partition-deed. However, Nos. 1 and 2 amongst us are widows and No. 3 is the adopted son of the deceased, adopted by the widow. We are so deciding by this partition-deed that none of us will sell any part of the estate mentioned in this partition-deed, because the desire is that no part of the property should be sold or otherwise disposed of during lifetime of Nos. 1 and 2 (viz, the widows) and, if any one sell the property, the transaction will be deemed to be void because of the conditions mentioned in the document. " the rest of the recitals are the usual, formal recitals in any document and are not relevant for the purpose of this litigation.