SUHAG WANTI Vs. SODHAN

JUDGEMENT

(1.) BRIEFLY stated the facts giving rise to the present execution second appeal against the order of the learned Additional District Judge, Ferozepur, dated the 21st February, 1966, are these. Khushi Ram and Mohan Lal were two brothers. Mohan Lal died first. He was survived by his widow Smt. Sodhan three married daughters and two unmarried, daughters namely Smt. Santosh and Smt. Sushila devi. Khushi Ram filed a suit on 17th March, 1945, for possession of the house in dispute against his sister-in-law Smt. Sodhan and two unmarried nieces Smt. Sushila Devi and Smt. Santosh in the Court of the Subordinate Judge 1st Class, ferozepur. It was alleged that the house was the property of the joint Hindu family comprising of Khushi Ram and Mohan Lal two brothers, that on the death of the latter it devolved on the former by the rule of survivorship. A portion of the house is said to have been in possession of Smt. Sodhan for her residence and the remaining is said to have been forcibly occupied by her after the death of her husband. Smt. Sodhan and her two daughters conceded that the house was purchased out of the joint Hindu family funds but all the same two brothers did not form Joint Hindu Family and added that they had been living in the house since the time of its purchase. They continued to state that the house was barely sufficient for their residence and maintenance. The learned Senior subordinate Judge while deciding a preliminary issue held that the question of maintenance and residence raised by the defendants could not be decided in the suit. He framed the following three issues on merit-

(2.) WHAT portion of the house in dispute should be sufficient for residence for defendants Nos. 1 to 3? The trial Judge finally granted a decree to Smt. Suhag Wanti and Jagdish Rai for possession of the house subject to the condition that they would not be entitled to execute till the marriage of Smt. Santosh and Smt. Sushila Devi or the death of smt. Sodhan whichever was later. Smt. Santosh and Smt. Sushila both after the passing of the decree got married. Smt. Sodhan also died. Thereafter Smt. Suhag wanti and Jagdish Rai sought execution of the decree against the five daughters of mohan Lal and Smt Sodhan deceased who resisted it on the ground that Smt. Sodhan in her life time had become full owner of the house in dispute under section 14 (1) of the Hindu Succession Act, hereinafter referred to as the Act. The decree holders on the other hand maintained that Smt. Sodhan was given the house in lieu of her right of maintenance and residence under a decree of the court and as such her case fell within the purview of Sub-section (2) of Section 14 of the Act. She, therefore, could not become full owner thereof on the enforcement of the Act. The executing Court after a careful review of the case law found that the case fell within the orbit of Sub-section (1) of Section 14 of the Act and Smt. Sodhan had become full owner thereof and the decree could not be executed against her five daughters who as her heirs were entitled to succeed to her estate, The execution application was dismissed and the parties were left to bear their own costs.

(3.) THE learned counsel for the decree-holders-appellants strenuously urged that the present case fell within the orbit of Sub-section (2) of Section 14 of the Act because the house for the first time was given to Smt. Sodhan and her two daughters for their maintenance and residence by the judgment and decree of the learned Subordinate Judge, 1st Class, dated the 29th January, 1951, Exhibit D. A/1. The case of the other side is that the aforesaid judgment and decree only recognised Smt. Sodhan's and that of her two daughters' right of maintenance and residence in the house which already vested in them. The learned Judges while allowing regular first appeal against the judgment and decree of the trial Judge in the original suit found as a fact that the house in dispute was in the possession of Smt. Sodhan widow of Mohan Lal and that Khushi ram husband of Smt Suhag Wanti decree-holder and father of Jagdish Rai was never in possession thereof. They further observed-