JOGI RAM versus SURESH KUMAR & ORS

[2022] 9 S.C.R. 766

[2022] 9 S.C.R.

JOGI RAM

SURESH KUMAR & ORS.

(Civil Appeal Nos. 1543-1544 of 2019)

BFEBRUARY 01, 2022

[SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]

Hindu Succession Act, 1956 – s.14(2) vis-à-vis 14(1) –Objective and applicability of – Held: Objective of sub-sec.(2) isthat there cannot be fetter in owner of property to give aClimited estate if he so chooses to do including to his wife but ofcourse if the limited estate is to the wife for her maintenance thatwould mature in an absolute estate u/s.14(1) – Sub-sec.(2) of s.14inter alia applies to Will which may create independent and newtitle in favour of females for the first time and is not recognitionDof pre-existing right – In such cases restricted estate in favourof female is legally permissible and s.14(1) of the said Act will notoperate in that sphere – Further, the objective of s.14(1) is to createan absolute interest in case of limited interest of the wife wheresuch limited estate owes its origin to law as it stood then – Theobjective cannot be that Hindu male who owned self-acquiredEproperty is unable to execute Will giving limited estate to wifeif all other aspects including maintenance are taken care of – Inthe present case, the testator had taken all care for the needs ofmaintenance of his second wife (‘RD’) by ensuring that the revenuegenerated from the estate would go to her alone – However, heFwished to give only limited life interest to her as the second wifewith the son (appellant) inheriting the complete estate after herlifetime – Thus, it would be the provisions of s.14(2) of the said Actwhich would come into play in such scenario and ‘RD’ only had alife interest in her favour – Hence, the respondents-third parties(claiming to be bona fide purchasers) who derived their rights fromG‘RD’ cannot inherit better title than what she had – Further, inview of the sequence of litigations, respondents can hardly be saidto be bona fide purchasers – The first endeavour was by the daughterof ‘RD’ by seeking collusive decree when she had no interest inthe property – She then sought to create lease interest in the propertyH– Both these aspects were held against ‘RD’ and her daughter right

till the Supreme Court in the first round of litigation clearly opiningthat ‘RD’ had only limited estate in the property – Despite havinglost right till the Supreme Court, the sale deeds were interveningfactors even during the pendency of the litigation which went against‘RD’ – Also, High Court has wrongly proceeded on the basis thatthe first round of litigation would not create any binding precedentsbecause there was change in law after the first round of litigation –There was, in fact, no change in law as all the judgments weremuch prior in time – The rights of the respondents are derived onlyfrom ‘RD’ and once the judgment is binding on her it cannot besaid that she can create rights contrary to the judgment in favourof third parties and that too during the pendency of the litigation –View taken by trial court and the first appellate court is correct –Sale deeds in favour of the respondents cannot be sustained –Impugned judgment of the High Court is set aside – Decree of thetrial court (in favour of the appellant decreeing his suit fordeclaration and injunction challenging the sale deeds executed by‘RD’) affirmed by the appellate court is reaffirmed – Transfer ofProperty Act, 1882 – s.41 – Res judicata.

Allowing the appeals, the Court

HELD: 1.1 Sub-Section (2) of Section 14 of the said Act isin the nature of proviso. It begins with ‘non-obstante clause’.Thus, it says that “nothing contained in sub-section (1) shall applyto any property acquired by way of gift or under will or anyother instrument or under decree or order of civil court....”etc. where restricted estate in such property is prescribed. Theobjective of sub-Section (2) is quite clear as enunciated repeatedlyby this Court in various judicial pronouncements, i.e., there cannotbe fetter in owner of property to give limited estate if heso chooses to do including to his wife but of course if the limitedestate is to the wife for her maintenance that would mature in anabsolute estate under Section 14(1) of the said Act. The Will whileconferring limited estate on Ram Devi, Tulsi Ram had clearlystated that she will earn income from the 12 property for herlivelihood. The income, thus, generated from the property is whathas been given for maintenance and not the property itself. Thenext clarification is that after the lifetime of Ram Devi, theappellant will get the ownership of the remaining half portion also.

AIt is specified that in case Ram Devi pre-deceases Tulsi Ram,then all the properties would go absolutely to the appellant andthat the other children will have no interest in the property. [Paras18, 19][776-G-H; 777-A-D]

1.2 There are only two real aspects to be examined in theBpresent case - i. In the given factual scenario did Ram Devibecome the absolute owner of the property in view of Section14(1) of the said Act or in view of the Will the Explanation underSection 14(2) would apply. ii. What is the effect of the first roundof litigation which came up to this Court between the appellantand Ram Devi, the two beneficiaries of the Will. Both theseCquestions have to be answered in favour of the appellant and forthat reason the impugned judgment is unsustainable. [Paras 26,27][779-A-C]

1.3 The relevant aspect of the conclusion in the seminaljudgment in V. Tulasamma & Ors. case is para 4 which opinesDwhere sub-section (2) of Section 14 of the said Act would applyand this does inter alia applies to Will which may createindependent and new title in favour of females for the first timeand is not recognition of pre-existing right. In such cases of arestricted estate in favour of female is legally permissible andESection 14(1) of the said Act will not operate in that sphere. Theobjective of Section 14(1) is to create an absolute interest in caseof limited interest of the wife where such limited estate owesits origin to law as it stood then. The objective cannot be that aHindu male who owned self-acquired property is unable to executea Will giving limited estate to wife if all other aspects includingFmaintenance are taken care of. If this Court was to hold so itwould imply that if the wife is disinherited under the Will it wouldbe sustainable but if limited estate is given it would mature intoan absolute interest irrespective of the intent of the testator. Thatcannot be the objective. [Paras 30, 31][782-G-H; 783-A-C]G

V. Tulasamma & Ors. v. Sesha Reddy (Dead) by LRs.(1977) 3 SCC 99 : [1977] 3 SCR 261 – referred to.

1.4 The testator in the present case had taken all care forthe needs of maintenance of his wife by ensuring that the revenue

generated from the estate would go to her alone. He, however,wished to give only limited lift interest to her as the secondwife with the son inheriting the complete estate after her lifetime.Thus, it would be the provisions of Section 14(2) of the said Actwhich would come into play in such scenario and Ram Devi onlyhad life interest in her favour. The natural sequittur is that therespondents cannot inherit better title than what the vendorhad and, thus, the view taken by the trial court and the firstappellate court is the correct view and the sale deeds in favour ofthe respondents cannot be sustained. [Para 32][783-C-E]1.5 On consideration of the second aspect, the sequenceof litigations can hardly be said to classify the respondents asbona fide purchasers. The first endeavour was by the daughter ofRam Devi by seeking what is undoubtedly collusive decreewhen she had no interest in the property. She then sought tocreate lease interest in the property. Both these aspects wereheld against Ram Devi and her daughter right till the SupremeCourt in the first round of litigation clearly opining that Ram Devihad only limited estate in the property. Despite having lost righttill the Supreme Court, the sale deeds were intervening factorseven during the pendency of the litigation which went against thevendor Ram Devi. The High Court wrongly proceeded on thebasis that the first round of litigation would not create any bindingprecedents because there was change in law after the first roundof litigation. There is, in fact, no change in law as all the judgmentswere much prior in time. The rights of the respondents are derivedonly from Ram Devi and once the judgment is binding on RamDevi it cannot be said that she can create rights contrary to thejudgment in favour of third parties and that too was done duringthe pendency of the litigation. The transactions in question arenot only not bona fide but dubious in character to somehow denythe appellant rights conferred under the Will respondents beingthird parties. The repeated endeavour of Ram Devi and herdaughter did not succeed earlier and cannot be permitted tosucceed qua the purchasers from Ram Devi. The impugnedjudgment of the single Judge of the High Court is set aside andthe decree of the trial court dated 13.8.2009 as affirmed by theappellate court dated 7.10.2010 is reaffirmed. [Paras 33-35][783-E-G; 784-B, D-E]

AJupudy Pardha Sarathy v. Pentapati Rama Krishna &Ors. (2016) 2 SCC 56 : [2015] 14 SCR 374; ShakuntlaDevi v. Kamla & Ors. (2005) 5 SCC 390 –distinguished.

Mathura Prasad Bajoo & Ors. v. Dossibai N.B.BJeejebhoy (1970) 1 SCC 613 : [1970] 3 SCR 830;Pankajakshi (dead) through LRs & Ors. v. Chandrika& Ors. AIR 2016 SC 1213 : [2016] 3 SCR 1018; SadhuSingh v. Gurudwara Sahib Narike & Ors. (2006) 8 SCC75 : [2006] 5 Suppl. SCR 799; Gaddam RamakrishnaCReddy & Ors. v. Gaddam Ramireddy & Ors. (2010) 9SCC 602 : [2010] 11 SCR 656 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1543-F1544 of 2019.

From the Judgment and Order dated 22.02.2018 of the High Courtof Punjab and Haryana at Chandigarh in RSA Nos. 210 and 209 of2011.

GGagan Gupta, Adv. for the Appellant.

Viswajeet Singh, Sr. Adv., Manish Kumar Choudhary, BhaskarMishra, Ms. Srishti Khurana, Ms. Srishti Choudhary, Ms. NamitaChoudhary, Advs. for the Respondents.

The Judgment of the Court was delivered by

SANJAY KISHAN KAUL, J.

Background:

1. The consequences of testamentary disposition by Will dated15.4.1968 by one Tulsi Ram, who passed away on 17.11.1969 is stillpending resolution before us after half century.

2. The Will aforesaid bequeathed the testator’s estate to his son,the appellant herein, and his second wife Ram Devi (the first wife beingdeceased whose progeny is the appellant). Land measuring 175 kanalsand 9 marla, residential house and Bara is Village Jundla, Haryanawas bequeathed half and half to the appellant and Ram Devi. However,the nature of bequeath was different for the two. The appellant wasgiven absolute ownership rights to the extent of his share of land andproperty whereas Ram Devi was given limited ownership for herenjoyment during her lifetime with respect to her share of the land witha specific provision that she could not alienate, transfer or create thirdparty rights over the same. Thereafter the property was to vest absolutelyin the appellant after her lifetime.3. It appears that the properties were enjoyed as per the Willafter the demise of Tulsi Ram in 1969 for quite few years till the firstround of litigation began – Bimla Devi, daughter of Ram Devi instituteda suit in the Court of Sub Judge 1[st] Class, Karnal for declaration againsther mother, Ram Devi, claiming that she had become owner in possessionof half share of the land willed to Ram Devi by Tulsi Ram, which resultedin decree being passed on 15.1.1986. It may be stated at this stageitself that by very nature the suit was collusive. On the decree beingpassed Bimla Devi executed lease deed in favour of one Amar Singhon 17.6.1986 in respect of land falling within Ram Devi’s limited share.This prompted the appellant to file Civil Suit No.94/1993 for declarationand permanent injunction before the Senior Sub Judge, Karnal impleadingRam Devi, Bimla Devi and Amar Singh. The gravamen of the suit wasthat Ram Devi having only limited life interest the decree of declarationby Bimla Devi had been obtained through collusion and the lease deedwas bogus document which would not have any effect upon the rightsof the appellant to inherit the property after the demise of Ram Devi.The suit was, however, contested only by Ram Devi with the other two

Adefendants being proceeded ex parte. The suit resulted in judgmentand decree dated 27.9.1995 to the effect that the appellant having provedthe Will executed by Tulsi Ram, the case clearly fell under Section 14(2)of the Hindu Succession Act, 1956 (hereinafter referred to as the ‘saidAct’) which was in the nature of an exception as it precluded the benefitsof Section 14(1) of the said Act to accrue with respect of propertyBinter alia inherited under Will with restricted right in such property.Thus, it was concluded that the limited estate of Ram Devi could not beexpanded to an absolute estate and the decree of the Civil Court dated15.1.1986 and the lease deed dated 17.6.1986 were consequently setaside.C4. It may be noted that even though the suit was pending in theinterregnum period Ram Devi executed two sale deeds dated 29.4.1993qua land measuring 38 kanals 14 marlas in favour of one Dharam Singhand 11 kanals 3 marlas in favour of Kanta Devi. Another sale deed wassubsequently executed on 8/9.6.1998 in favour of Baldeva for landDmeasuring 40 kanals 8 marlas. All these were part of the suit land. Thelatter was during the pendency of the appeal by Ram Devi before theAdditional District Judge, Karnal which appeal was also finally dismissedvide judgment dated 15.4.1999. Insofar as the appeal qua Baldeva wasconcerned, that was also dismissed due to inability of Ram Devi to servenotice on Baldeva despite sufficient opportunity. In the third round of theEsame litigation Ram Devi’s second appeal under Section 41 of the PunjabCourts Act, 1918 (hereinafter referred to as the ‘PC Act’) also met thesame fate vide judgment dated 23.10.2001 in RSA No.1700/1999. Thewhole matter ought to have received quietus thereafter as the SpecialLeave Petition was also dismissed vide order dated 29.4.2002. It may

Fbe noticed that in the interregnum period Ram Devi also passed awayon 26.8.1999. This is as far as the story of the first round of litigation.

5. The second round of litigation began when the appellant instituteda Civil Suit No.256/157 of 2008 before the Civil Judge, SD, Karnal fordeclaration and injunction challenging the sale deeds executed by RamGDevi. This suit was also decreed vide judgment and decree dated13.8.2009 in favour of the appellant.

6. Once again the gravamen of the decision of the learned CivilJudge was the earlier judgment and decree dated 27.9.1995 opining thatRam Devi had only limited ownership right and could not have alienatedHthe suit property. There being no change in law, the previous decree in

favour of the appellant was held binding among the parties and theirsuccessors-in-interest. The sale deeds executed, thus, found to beunsustainable being against the decree of the lower court. Once again,opinion was the same as to the construction of Sections14(1) and 14(2)of the said Act as any contrary interpretation would tantamount toproscribing the right of Hindu to execute Will as envisaged underSection 30 of the said Act. The court granted decree of possession tothe appellant being the rightful owner of the same. The court also notedthat the title of the purchasers could not be better titled than Ram Devipossessed as they had acquired their rights from her and could not evenbe considered bona fide purchasers for value in view of the history ofthe litigation.

7. Kanta Devi, legal heirs of Baldev and Dharam Singh thenpreferred an appeal against the said judgment dated 13.8.2009, whichwas dismissed vide judgment dated 7.10.2010 in Civil Appeal No.56/2009. That gave rise to the second appeal before the High Court, beingRSA No.210/2011.

8. The respondents pleaded before the High Court by relying uponthe judgment of this Court in V. Tulasamma & Ors. v. Sesha Reddy(Dead) by LRs.[1] to contend that Ram Devi’s right over the suit propertygranted under the Will had crystallised into an absolute ownership rightmaking her competent to transfer the same. The subsequent judgmentof this Court in Jupudy Pardha Sarathy v. Pentapati Rama Krishna& Ors.[2] was also referred to in support of the said proposition. Thedecree in the first round of litigation was contended not to operate as resjudicata in the second suit as the judgment in the earlier suit was contraryto the law prevailing at the time of their consideration (Shakuntla Deviv. Kamla & Ors.[3] which referred to Mathura Prasad Bajoo & Ors. v.Dossibai N.B. Jeejebhoy[4]). Without prejudice to the same therespondents also claimed to be bona fide purchasers for value and,thus, were protected under Section 41 of the Transfer of Property Act,1882 (hereinafter referred to as the ‘TP Act’).

9. On the other hand the appellant contended that the doctrine ofres judicata would apply in view of the earlier adjudication as the matter

1 (1977) 3 SCC 99

2 (2016) 2 SCC 56

3 (2005) 5 SCC 390

4 (1970) 1 SCC 613

Aof Ram Devi having limited estate has been upheld right till the SupremeCourt. The appellant had also taken possession of the suit property andexecution of the judgments was under challenge before the High Court.

10. The fate of the respondents after the amendment turnedfavourable as they succeeded before the High Court in terms of theBimpugned judgment dated 22.2.2018. The discussion in the impugnedjudgment revolves around three aspects:

(a) Whether the first round of litigation operate as res judicatafor the appeal.

(b) Whether Ram Devi’s limited right over the suit propertyCconferred through the Will had crystallised into an absoluteright under Section 14(1) of the said Act.

(c) Whether the High Court was mandated to frame substantialquestion of law in deciding the second appeal.

D11. On the first aspect the High Court found that the factualscenario and legal principles enunciated in Shakuntla Devi[5] case wouldbe squarely applicable to the facts of the present case. In the factualscenario of that case, one Uttamdasi was the successor of the suitproperty and had alienated the same through sale deed and gift deed.The daughter of Uttamdasi, Takami, successfully challenged the alienationEand the decree became final. Uttamdasi thereafter executed Will withrespect to the same suit property. Tikami instituted suit for possessionon the basis of previous declaratory decree wherein she had been heldto have ownership right of the property. This Court opined that the casewould constitute as principle of res judicata. The first declaratoryFdecree in favour of Tikami was granted on the basis of limited rightheld by Uttamdasi in the suit property. By the time the second decreewas tried, the Supreme Court in V. Tulasamma & Ors.[6] case haddeclared the law under Section 14 of the said Act to the extent that thebeneficiary under Will such as Uttamdasi with limited rights wouldbecome the absolute owner of the same. Since the law had been alteredGsince the first declaratory decree, the same would not operate as resjudicata in decree for possession. The judgment in V. Tulasamma &Ors.[7] case was not retrospective but declaratory decree simpliciter

5 (supra)

6 (supra)H7 (supra)

would not attain finality if it is used in future decree of possession andit would be open for defendant in future suit for possession to establishthat the earlier declaratory decree was not lawful. Thus, the respondentswere held entitled to challenge the appellant’s possession of the suitproperty.

12. On the second aspect the High Court has taken view that V.Tulasamma & Ors.[8] case had sufficiently resolved any uncertaintyunder Sections 14(1) & 14(2) of the said Act. Hindu female has aright to maintenance on property if charge was created for hermaintenance, the right would become legally enforceable irrespective,even without charge, the claim for maintenance was pre-existingright so that any transfer declaring such right would not confer newtitle but merely confirm pre-existing rights and Section 14(2) of the saidAct cannot be interpreted in manner that would dilute Sections 14(1)and 14(2) of the said Act. Only in scenario where the instrument createda new title in favour of the wife for the first time, would Section 14(2)would come into play and not where there was pre-existing right.Ram Devi was held to have been conferred with limited right whichwould translate into an absolute right over the suit property as it wasonly confirmation of the pre-existing right over the property.

13. On the last aspect it was held that in view of the decision ofthis Court in Pankajakshi (dead) through LRs & Ors. v. Chandrika& Ors.[9], the High Court was not required to frame substantial questionof law while deciding the plea as Section 97(1) of the Code of CivilProcedure, 1908 (hereinafter referred to as the ‘said Code’) would haveno applicability to the PC Act.

14. On the appellant approaching this Court notice was issued inthe SLP on 4.7.2018 with the direction to maintain status quo as on thedate as the appellant had already taken over possession in the executionof the decree. Leave was granted on 4.2.2019 and the interim ordermade absolute.

15. In the conspectus of the aforesaid, the matter was heard by

The Arguments:

8 (supra)

9 AIR 2016 SC 1213

A16. In order to appreciate the provisions of the said Act, it may beappropriate to reproduce Section 14 of the said Act as under:

“14. Property of female Hindu to be her absoluteproperty.—

(1) Any property possessed by female Hindu, whether acquiredBbefore or after the commencement of this Act, shall be held byher as full owner thereof and not as limited owner.

Explanation.—In this sub-section, “property” includes both movableand immovable property acquired by female Hindu by inheritanceor devise, or at partition, or in lieu of maintenance or arrears ofCmaintenance, or by gift from any person, whether relative ornot, before, at or after her marriage, or by her own skill or exertion,or by purchase or by prescription, or in any other mannerwhatsoever, and also any such property held by her as stridhanaimmediately before the commencement of this Act.

D(2) Nothing contained in sub-section (1) shall apply to any propertyacquired by way of gift or under will or any other instrument orunder decree or order of civil court or under an award wherethe terms of the gift, will or other instrument or the decree, orderor award prescribe restricted estate in such property.”

E17. There is no doubt that Section 14 of the said Act is the part ofthe said Act to give rights of property to Hindu female and was aprogressive step. Sub-Section (1) of Section 14 of the said Act makes itclear that it applies to properties acquired before or after thecommencement of the said Act. Any property so possessed was to beFheld by her as full owner thereof and not as limited owner. TheExplanation to sub-Section (1) of Section 14 of the said Act defines themeaning of “property” in this sub-section to include both movable andimmovable property acquired by the female Hindu by inheritance ordevise or partition, or in lieu of maintenance or arrears of maintenance,or by gift from any person, or by her skill or exertion, or by purchase orGby prescription or in any other manner whatsoever, including stridhana.The Explanation is quite expansive.

18. Sub-Section (2) of Section 14 of the said Act is in the natureof proviso. It begins with ‘non-obstante clause’. Thus, it says that“nothing contained in sub-section (1) shall apply to any property acquired

by way of gift or under will or any other instrument or under decreeor order of civil court....” etc. where restricted estate in such propertyis prescribed. In our view the objective of sub-Section (2) above is quiteclear as enunciated repeatedly by this Court in various judicialpronouncements, i.e., there cannot be fetter in owner of propertyto give limited estate if he so chooses to do including to his wife but ofcourse if the limited estate is to the wife for her maintenance that wouldmature in an absolute estate under Section 14(1) of the said Act.19. Before considering the submissions it would be appropriate toturn to the Will itself. The Will while conferring limited estate on RamDevi, Tulsi Ram had clearly stated that she will earn income from theproperty for her livelihood. The income, thus, generated from the propertyis what has been given for maintenance and not the property itself. Thenext clarification is that after the lifetime of Ram Devi, the appellant willget the ownership of the remaining half portion also. It is specified thatin case Ram Devi pre-deceases Tulsi Ram, then all the properties wouldgo absolutely to the appellant and that the other children will have nointerest in the property. We may note that Tulsi Ram had six children.One son and four daughters are from the first wife and Bimla Devi wasthe daughter from the second wife. At the stage when the Will wasexecuted one of the daughters was unmarried and the Will also providedthat in case for performing the marriage Ram Devi needs money shewill have the right to mortgage the property and earn money from thesame and will further have the right to gain income even prior to themarriage.

20. We have set forth the terms and conditions of the Will tounderstand the intent of the testator. The testator is, at least, clear interms that the income derived from the property is what is given to thesecond wife as maintenance while insofar as the properties areconcerned, they are divided half and half with the appellant having anabsolute share and the wife having limited estate which after her lifetimewas to convert into an absolute estate of the appellant.

21. Now turning to the submissions of the learned counsel for theparties.

22. Learned counsel for the appellant contended that the life estatewas not given to Ram Devi in lieu of recognition of any pre-existing rightof Ram Devi or in lieu of maintenance and, thus, Section 14(2) of the

Asaid Act would apply and not Section 14(1) of the said Act. The plea ofres judicata was again reiterated. It was urged that the High Courtproceeded on an erroneous premise as if the law had changed from thefirst round of litigation while the fact was that the law was the same atboth stages of time. The distinction which was sought to be made wasthat Shakuntla Devi[10] case was wrongly relied upon as the Will in thatBcase was dated 1.10.1935 and it was, thus, pre-1956 Will and, thus,that judgment was not precedent for factual scenario in question. Thesuit property was self-acquired property of Tulsi Ram and, thus, hewas competent to execute the Will.

23. We may note that learned counsel for the appellant did seekCto contend that since possession of the property was taken over by theappellant and Ram Devi was not in possession thereof, she cannot claimthe benefit of Section 14(1) of the said Act (Sadhu Singh v. GurudwaraSahib Narike & Ors.[11] and Gaddam Ramakrishna Reddy & Ors. v.Gaddam Ramireddy & Ors.[12]). We may, however, note that in ourDperspective that is not material consideration as the possession is statedto have been taken over in pursuance of the decree of the trial court.

24. On behalf of the respondents it was, once again, emphasisedthat the factual scenario was similar to Shakuntla Devi[13] case and therights of female Hindu post the said Act have been crystallised andEenunciated in V. Tulasamma & Ors.[14] case since she was an absoluteowner she was entitled to sell the land and the respondents were bonafide buyers who were protected by Section 41 of the TP Act. Further nosubstantial question of law was required to be framed in view of theConstitution Bench judgment of the Supreme Court in Pankajakshi(dead) through LRs & Ors.[15] case.F

Our view:

25. We have extracted the relevant portions of the enactment, thedocument in question being the Will and have already opined on theinterpretation of the Will. The submissions of the learned counsel for theGparties have, thus, to be appreciated in the conspectus of the same.

10 (supra)11 (2006) 8 SCC 7512 (2010) 9 SCC 60213 (supra)14 (supra)H15 (supra)

26. We do believe that there are only two real aspects to beexamined in the present case as the issue of even framing question oflaw stands settled. The two aspects, in our view are as under:

i.In the given factual scenario did Ram Devi become theabsolute owner of the property in view of Section 14(1) of thesaid Act or in view of the Will the Explanation under SectionB14(2) would apply.

ii. What is the effect of the first round of litigation which cameup to this Court between the appellant and Ram Devi, the twobeneficiaries of the Will.

27. We are of the view that both these questions have to beanswered in favour of the appellant and for that reason the impugnedjudgment is unsustainable.

28. We would first like to turn to the seminal judgment in V.Tulasamma & Ors.[16] case. In para 20 the propositions emerging inrespect of incidents and characteristics of Hindu woman’s right tomaintenance have been crystallised as under:

“20. Thus on careful consideration and detailed analysis of theauthorities mentioned above and the Shastric Hindu Law on thesubject, the following propositions emerge with respect to theincidents and characteristics of Hindu woman’s right tomaintenance:

(1) that Hindu woman’s right to maintenance is personalobligation so far as the husband is’ concerned, and it is his dutyto maintain her even if he has no property. If the husband hasproperty then the right of the widow to maintenance becomesan equitable charge on his property and any person whosucceeds to the property carries with it the legal obligation tomaintain the widow;

(2) though the widow’s right to maintenance is not right toproperty but it is undoubtedly pre-existing right in property, i.e.it is jus ad rem not jus in rem and it can be enforced by thewidow who can get charge created for her maintenance onthe property either by an agreement or by obtaining decreefrom the civil court;

(3) that the right of maintenance is matter of moment and isof such importance that even if the joint property is sold andthe purchaser has notice of the widow’s right to maintenance,the purchaser is legally bound to provide for her maintenance;

(4) that the right to maintenance is undoubtedly pre-existingright which existed in the Hindu Law long before the passingof the Act of 1937 or the Act of 1946, and is, therefore, pre-existing right;

(5) that the right to maintenance flows from the social andtemporal relationship between the husband and the wife byvirtue of which the wife becomes sort (I.L.R. 27 Mad. 45.(2) I.L.R. 18 Bom. 452) of co-owner in the property of herhusband, though her co-ownership is of subordinate nature;and

(6) that where Hindu widow is in possession of the propertyof her husband, she is entitled to retain the possession in lieu ofher maintenance unless the person who succeeds to theproperty or purchases the same is in position to make duearrangements for her maintenance.”

29. In the light of the aforesaid passage, Sections 14(1) & 14(2)Eof the said Act were entered by the Court. The word “possessed” washeld to be used in wide sense not requiring Hindu woman to be anactual or physical possession of the property and it would suffice if shehas right in the property. The discussion in para 33 thereafter opinesthat the intention of the Parliament was to confine sub-section (2) ofSection 14 of the said Act only to two transactions, viz., gift and will,Fwhich clearly would not include property received by Hindu female inlieu of maintenance or at partition. The intention of the Parliament inadding the other categories to sub-section (2) was merely to ensure thatany transaction under which Hindu female gets new or independenttitle under any of the modes mentioned in Section 14(2) of the said Act.GThe conclusions were thereafter set forth in para 62 of the judgment asunder:

“62. We would now like to summarise the legal conclusions whichwe have reached after an exhaustive considerations of theauthorities mentioned above; on the question of law involved in

this appeal as to the interpretation of s. 14(1) and (2) of the Act of1956. These conclusions may be stated thus:

(1) The Hindu female’s right to maintenance is not an emptyformality or an illusory claim being conceded as matter ofgrace and generosity, but is tangible right against propertywhich flows from the spiritual relationship between the husbandand the wife and is recognised and enjoined by pure ShastricHindu Law and has been strongly stressed even by the earlierHindu jurists starting from Yajnavalkya to Manu. Such rightmay not be right to property but it is right against propertyand the husband has personal obligation to maintain his wifeand if he or the family has property, the female has the legalright to be maintained therefrom. If charge is created for themaintenance of female, the said right becomes legallyenforceable one. At any rate, even without charge the claimfor maintenance is doubtless pre-existing right so that anytransfer declaring or recognising such right does not conferany new title but merely endorses or confirms the pre-existingrights.

(2) Section 14(1) and the Explanation thereto have beencouched in the widest possible terms. And must be liberallyconstrued in favour of the females so as to advance the objectof the 1956 Act and promote the socio-economic ends, soughtto be achieved by this long needed legislation.

(3) Sub-section (2) of s. 14 is in the nature of proviso and hasa field of its own without interfering with the operation ofs. 14(1) materially. The proviso should not be construed in amanner so as to destroy the effect of the main provision or theprotection granted by s. 14(1) or in way so as to becometotally inconsistent with the main provision.

(4) Sub-section (2) of s. 14 applies to instruments, decrees,awards, gifts etc. which create independent and new titles infavour of the females for the first time and has no applicationwhere the instrument concerned merely seeks to confirm,endorse, declare or recognise pre-existing rights. In such casesa restricted estate in favour of female is legally permissibleand s. 14(1) will not operate in this sphere. Where, however,an instrument merely declares or recognises pre-existing right,

such as claim to maintenance or partition or share to whichthe female is entitled, the sub-section has absolutely noapplication and the female’s limited interest would automaticallybe enlarged into an absolute one by force of s. 14(1) and therestrictions placed, if any, under the document would have tobe ignored. Thus where property is allotted or transferred toa female in lieu of maintenance or share at partition, theinstrument is taken out of the ambit of sub- s. (2) and would begoverned by s.14(1) despite any restrictions placed on thepowers of the transferee.

(5) The use of express terms like “property acquired by femaleHindu at partition”, “or in lieu of maintenance” “or arrears ofmaintenance” etc. in the Explanation to s. 14(1) clearly makessub-s.(2) inapplicable to these categories which have beenexpressly excepted from the operation of sub-s.(2).

(6) The words “possessed by” used by the Legislature in s.14(1) are of the widest possible amplitude and include the stateof owning property even though the owner is not in actual orphysical possession of the same: Thus, where widow gets ashare in the property under preliminary decree before or atthe time when the 1956 Act had been passed but had not beengiven actual possession under final decree, the property wouldbe deemed to be possessed by her and by force of s. 14(1) shewould get absolute interest. in the property. It is equally wellsettled that the possession of the widow, however, must beunder some vestige of claim, right or title, because the sectiondoes not contemplate the possession of any rank trespasserwithout any right or title.

(7) That the words “restricted estate” used in s. 4(2) are widerthan limited interest as indicated in s.14(1) and they includenot only limited interest, but also any other kind of limitationthat may be placed on the transferee.”

30. In our view the relevant aspect of the aforesaid conclusion ispara 4 which opines where sub-section (2) of Section 14 of the said Actwould apply and this does inter alia applies to Will which may createindependent and new title in favour of females for the first time and isnot recognition of pre-existing right. In such cases of restricted

estate in favour of female is legally permissible and Section 14(1) ofthe said Act will not operate in that sphere.

31. We may add here that the objective of Section 14(1) is tocreate an absolute interest in case of limited interest of the wife wheresuch limited estate owes its origin to law as it stood then. The objectivecannot be that Hindu male who owned self-acquired property is unableto execute Will giving limited estate to wife if all other aspectsincluding maintenance are taken care of. If we were to hold so it wouldimply that if the wife is disinherited under the Will it would be sustainablebut if limited estate is given it would mature into an absolute interestirrespective of the intent of the testator. That cannot be the objective, inour view.

32. The testator in the present case, Tulsi Ram, had taken all carefor the needs of maintenance of his wife by ensuring that the revenuegenerated from the estate would go to her alone. He, however, wishedto give only limited lift interest to her as the second wife with the soninheriting the complete estate after her lifetime. We are, thus, of theview that it would be the provisions of Section 14(2) of the said Actwhich would come into play in such scenario and Ram Devi only hada life interest in her favour. The natural sequittur is that the respondentscannot inherit better title than what the vendor had and, thus, the viewtaken by the trial court and the first appellate court is the correct viewand the sale deeds in favour of the respondents cannot be sustained.33. On consideration of the second aspect, we must begin bystating that the sequence of litigations can hardly be said to classify therespondents as bona fide purchasers. The first endeavour was by thedaughter of Ram Devi by seeking what is undoubtedly collusive decreewhen she had no interest in the property. She then sought to create leaseinterest in the property. Both these aspects were held against Ram Deviand her daughter right till the Supreme Court in the first round of litigationclearly opining that Ram Devi had only limited estate in the property.Despite having lost right till the Supreme Court, the sale deeds wereintervening factors even during the pendency of the litigation which wentagainst the vendor Ram Devi.

34. We may also notice that the reliance on Shakuntla Devi[17]case by the High Court is misplaced as the factual scenario cannot besaid to be identical. In fact the most crucial aspect was that the Will in

ABC

Aquestion was dated 1.10.1935, pre-1956 Will which is the distinguishingfactor. The same factual scenario prevailed in Jupudy Pardha Sarathy[18]case. We must also notice that the High Court wrongly proceeded onthe basis that the first round of litigation would not create any bindingprecedents because there was change in law after the first round oflitigation. There is, in fact, no change in law as all the judgments wereBmuch prior in time. We have already stated that the rights of therespondents are derived only from Ram Devi and once the judgment isbinding on Ram Devi it cannot be said that she can create rights contraryto the judgment in favour of third parties and that too was done duringthe pendency of the litigation. We believe from the facts on record thatCthe transactions in question are not only not bona fide but dubious incharacter to somehow deny the appellant rights conferred under theWill respondents being third parties. The repeated endeavour of RamDevi and her daughter did not succeed earlier and cannot be permittedto succeed qua the purchasers from Ram Devi.

DConclusion:

35. The result of the aforesaid is that the appeals are allowed andthe impugned judgment of the learned single Judge of the High Court isset aside and the decree of the trial court dated 13.8.2009 as affirmedby the appellate court dated 7.10.2010 is reaffirmed. The parties are leftto bear their own costs.E

Divya Pandey(Assisted by : Deepak Panwar, LCRA)

Appeals allowed.

H18 (supra)