YAMUNA RAMCHANDRA HALWANE Vs. VITHAL WASUDEO SAPKAL

JUDGEMENT

(1.) The defendant has filed this Second Appeal challenging the concurrent judgments and decrees delivered by the Courts below. The suit before the trial Court was filed by present respondent . Vithal for declaration of his ownership on the basis of sale deed. He purchased the suit property from one Jaywantabai on 22.4.1981 and also entered its possession and started cultivating it. As he received threats from the present appellants and also apprehending dispossession, he issued registered notice and filed the suit. The contention of appellants/ defendants was that Jaywantabai was only having life estate and therefore was not entitled to transfer suit property and as such Vithal did not acquire title. In view of the provisions of Section 14 sub-section (1) of Hindu Succession Act, the trial Court did not accept that defence and decreed the suit. The appellants then filed Regular Civil Appeal No. 369 of 1989 and 4th Additional District Judge, Akola, on 26.11.1991, dismissed that appeal.

(2.) Thereafter this Second Appeal has been admitted on question -

(3.) Shri Mohokar, learned counsel for the appellants has vehemently contended that there was no pre-existing right in Jaywantabai for maintenance and as such Will Exh. 82 cannot be interpreted as conferring any right upon her in lieu of such right of maintenance. He points out that under provisions of Hindu Adoption and Maintenance Act, wife is not entitled to maintenance against husband during his life time and also after his death. He contends that Ramchandra has made an arrangement for his widow after his death and as it is not in recognition of any pre-existing right, Section 14 sub-section (2) of Hindu Succession Act, has only to apply and Courts below have erroneously applied Section 14 sub-section (1) thereon. He also states that the judgment of the Hon'ble Apex Court in the case of V. Tulasamma vs. V. Sesha Reddy , reported at AIR 1977 SC 1944, by both the Courts is erroneous. He contends that said judgment is clarified and explained by the Hon'ble Apex Court in its recent judgment in the case of Sharad vs. Soumi, reported at 2007 (1) Mh. L.J. 293. He states that facts of said judgment are identical with present facts and in any case law as explained therein must apply to present facts. He also relies upon the Division Bench judgment of this Court in the case of Kamlabai vs. Shantabai , reported at 1983 Mh. L.J. 221 to contend that Section 14(1) had no application in present facts as there is no pre-existing right.