YAMUNABAI GANGADHAR KHARADE Vs. PARAPPA SADASHIV RAJMANE

JUDGEMENT

(1.) AFTER stating the facts and dealing with a point not material in this respect the judgment proceeds. Assuming, however, that the finding of the fact recorded by the Assistant Judge is unassailable and binding on me in Second Appeal and it is held as proved that Shivubai acquired the property in dispute in lieu of maintenance on the strength of instrument, Exh. 54, as alleged by the plaintiff -respondent, the question still remains as to whether this circumstance alone could prevent Shivubai from becoming the absolute owner of the property in terms of section 14 (1) of the Hindu Succession Act, According to Mr. Lalit, Shivubai became the absolute owner of the property in view of the provisions of section 14 (1) of the Hindu Succession Act, as she was in possession of this property on June 17, 1956, and the property was given to her in lieu of her maintenance. The circumstance that she acquired the property in lieu of her maintenance under the strength of the instrument, Exh. 54, cannot make any difference to the right conferred on her under section 14 (1) of the Hindu Succession Act. He relies on the judgment of the Calcutta High Court, reported in Sasadhar Chandra v. Tata Sundari : AIR 1962 Cal. 438, and the judgments of the Madras High Court reported in Sampathkumari v. Lakshmi Ammal : AIR 1963 Mad. 50 and Rathinasamy v. Nayammal AIR 1963 Mad. 133. As against that, Mr. L G. Khare, the learned advocate for the respondent -plaintiff, relied on the judgments reported in Jaria Devi v. Shyam Sunday : AIR 1959 Cal. 338 and Mt. S. Kuer v. D. M. Devi AIR 1960 Pat. 360 and urged that the property having been acquired by Shivubai pursuant to the terms of Exh. 54, the rights created in her under the said instrument must remain restricted in view of section 14 (2) of the Hindu Succession Act, The judgments reported in Jaria Devi v. Shyam Sundar : AIR 1959 Cal. 338 and Mt. S. Kuer v. D. M. Devi AIR 1960 Pat. 360 are based on the peculiar facts of the respective cases. In subsequent judgments of the Calcutta High Court reported in Sasadhar Chandra v. Tara Sundari : AIR 1962 Cal. 438 and Lalchand v. Sushila A I R 1962 Cal. 623, a different view has been taken. In the Patna case, the widows had already relinquished all the rights they possessed in the property by way of inheritance and after such relinquishments, one of the widows was again put in possession of the disputed property under an instrument creating restricted rights. The ratio of the said judgment, therefore, cannot be of any assistance to support Mr. Khare's argument. The reliance on Mali Bewa v. Dadhi Das A I R 1960 Orissa 81 by Mr. Khare is also equally misplaced, inasmuch as the same High Court has taken a different view in subsequent judgments. [Refer to Raghunath Sahu v. Bhimsen Naik A I R 1965 Orissa 09]. The judgments cited by Mr. Lalit, the learned advocate for the appellants, undoubtedly support his contention. The same view has been adopted by other High Courts also. [See Janak Dulari v. District Judge, Kanpur A I R 1961 All. 294, Venugopal v. Madhavakrishnan : AIR 1964 Mad. 155, Rangaswami v. Chinnammal AIR 1964 Mad. 387, A. V. Subbareddi v. A. Penchalamma AIR 1962 A P 368, Lachhia v. Ram Shankar AIR 1966 Pat. 191 and Gadam v. Venkataraju AIR 1965 A P 66]. The same view is adopted by the Punjab High Court in the case reported in Sharbati Devi v. Hiralal AIR 1964 Punj. 114. The view taken by the learned Judges of various High Courts is, that section 14 (2) of the Hindu Succession Act deals with rights which were acquired by the female Hindu for the first time under an instrument, or a gift, or a will, or a decree or an award as mentioned in the said sub -section (2) of section 14. Sub -section (2) of section 14 does not apply to cases where the female Hindu was already possessed of rights in the said property and the subsequent instrument or the decree merely proceeded to recognise the said rights. These judgments lay down further that the connotation of the word "acquire" occurring in sub -section (1) of section 14 has been enlarged and amplified by the explanation added to sub -section (1); while in the absence of such explanation to sub -section (2) the word "acquire" must be deemed to have been used in a very limited sense, and in sub -section (2) the words "acquire......or under a decree or order of a civil Court or under an award" have to be read ejusdem generis with the preceding words viz. "property acquired by way of gift or under a will". It has been observed by the learned Judges in all these cases that the object of section 14 was to enlarge the right of the women in the property possessed by them as female Hindu and sub -section (2) was carved out as an exception to cover such cases where female Hindu recovered property by way of grants and the grantors did not intend to grant the property to female Hindu without any restrictions. While the judgment was being dictated, Mr. L. G. Khare, the learned advocate appearing for the respondent very fairly drew my attention to the judgment of this Court delivered by my learned brother Deshmukh J. in the case of Jagannathpuri Guru v. Godabai 1967 Mh. L J 813 : A I R 1968 Bom. 25, wherein Deshmukh J. also has taken the same view.

(2.) IT is, however, argued by Mr. Khare that all these cases relied on by Mr. Lalit and referred to in the above paragraph deal with cases where the female Hindus had acquired the property in dispute in the course of the partition to which they were entitled in exercise of their right to inherit the same by virtue of the provisions of the Hindu Women's Rights to Property Act, 1937, or otherwise where the female Hindu possessed the right to inherit. These cases do not deal with the rights of the widow over the property given to her in lieu of her maintenance which came into possession of the widow for the first time pursuant to the terms of the instrument such as under Exh. 54 in this case. In the case reported in Sharbati Devi v. Hiralal AIR 1964 Punj. 114, the widow was already in possession of the property, before her possession in lieu of maintenance was subsequently confirmed under Court decree. According to Mr. Khare, till the execution of Exh. 54 on July 14, 1941, Shivubai did not possess any definite and ascertained right or interest in any property belonging to the joint family and her rights in the suit property were crystallised only when the property was put in her possession in lieu of her maintenance pursuant to the terms of Exh. 54. Mr. Khare's argument is that, on the facts of this case, it must be held that Shivubai acquired this property in dispute under the instrument, Exh. 54, within the meaning of section 14 (2) of the Hindu Succession Act and as this instrument restricted the rights of Shivubai in the said property to her life -time the terms of section 14 (1) of the Hindu Succession Act cannot have the effect of enlarging the said restricted rights of Shivubai so as to make her absolute owner on June 17, 1956. Mr. Khare's arguments do find support in a judgment of the Madras High Court reported in Gurunadham v. Navaneethamma : AIR 1967 Mad. 429 delivered by Natesan J.

(3.) NOW it is true that this right of the widow for her maintenance out of the joint family property did suffer from these and several other infirmities. Even so, it was a potential right capable of being ascertained and being a subject -matter of the charge on the joint family property. Once it is found that a widow did possess such rights in the joint family property, it cannot be said that such rights or interests, attached to the property given in her possession in lieu of her maintenance at some stage, are created for the first time when the property is put in her possession under some arrangement or instrument or under a decree of some Court or under some award. The instrument or decree, still, cannot be said to be a source or foundation of her rights, in the property bo assigned. What she gets under the instrument or the decree in such cases, is only in recognition of the rights she possessed in the property by virtue of her being a widow of the said joint family. The true legal character of a widow's rights in the joint family property is aptly described by this Court in the case of Secretary of State v. Ahalyabai : AIR 1938 Bom. 321 -(1937) 10 Bom. L R 422 : I L R 1938 Bom. 454.. Dealing with the rights of the widow and daughter of a deceased coparcener in joint family property in possession of the sole surviving coparcener, the Court observed (p. 426):