SUPREME COURT OF INDIA
VELAMURI VENKATA SIVAPRASAD … VS. KOTHURI VENKATESWARLU
(DEAD) BY …
(DEAD) BY …
DATED : 24.11.1999
Summarised
Judgement
Judgement
Introduction
:
:
The Judgment of the Court was delivered
by BANERJEE, J. Some specific questions arise for determination in this appeal
by the grant of special leave against a Bench decision of the Andhra Pradesh
High Court : Firstly, whether
re-marriage of a widow prior to Hindu Succession Act, 1956 would divest her of
even the limited ownership of her deceased husband’s property, having due
regard to the provisions of Section 2 of Hindu Widow’s Re-marriage Act, 1856
(hereinafter referred to as`the Act of 1856′); and secondly, whether
disqualification of inheritance, if any, by reason of re-marriage would stand
obliterated by reason of the provisions of the Madras Hindu (Bigamy Prevention
and Divorce) Act, 1949.
by BANERJEE, J. Some specific questions arise for determination in this appeal
by the grant of special leave against a Bench decision of the Andhra Pradesh
High Court : Firstly, whether
re-marriage of a widow prior to Hindu Succession Act, 1956 would divest her of
even the limited ownership of her deceased husband’s property, having due
regard to the provisions of Section 2 of Hindu Widow’s Re-marriage Act, 1856
(hereinafter referred to as`the Act of 1856′); and secondly, whether
disqualification of inheritance, if any, by reason of re-marriage would stand
obliterated by reason of the provisions of the Madras Hindu (Bigamy Prevention
and Divorce) Act, 1949.
Facts
of the Case :
of the Case :
The factual score in the Appeal
presently before us reveals that one Rosaiah was the owner of a large extent of
properties. He died in February, 1937 leaving behind him his wife Lakshmamma
and mother Venkayamma. Rosaiah executed a will on 11th January, 1937 wherein he
bequeathed all his properties to his mother Venkayamma. Apart from providing
some maintenance, Rosaiah did not provide anything else to his wife Lakshmamma.
As a matter of fact in the will he stated that his wife Lakshmamma was not
obedient to him and that her father with her aid was trying to knock off all
his properties and that his wife was also not living with him.
presently before us reveals that one Rosaiah was the owner of a large extent of
properties. He died in February, 1937 leaving behind him his wife Lakshmamma
and mother Venkayamma. Rosaiah executed a will on 11th January, 1937 wherein he
bequeathed all his properties to his mother Venkayamma. Apart from providing
some maintenance, Rosaiah did not provide anything else to his wife Lakshmamma.
As a matter of fact in the will he stated that his wife Lakshmamma was not
obedient to him and that her father with her aid was trying to knock off all
his properties and that his wife was also not living with him.
He however in
the will provided that, in case his wife was prepared to take a boy of his
mother’s choice, in adoption, she could do so but the boy so adopted should be
under the guardianship of his mother until attainment of majority and in that
event would be entitled to certain properties as specified in the will. Factual
score further depicts that after the death of Rosaiah, Lakshmamma filed a suit
(OS No. 52 of 1939) for a declaration as regards her entitlement to all the
properties of her husband. The mother, in her turn, also filed another suit for
administration of the estate, on the basis of the will mentioned above (OS No.
42 of 1940). It appears from the records that there was in fact a compromise
decree between both the mother and the wife of Rossiah which was recorded by
the Court on 19th April 1942.
the will provided that, in case his wife was prepared to take a boy of his
mother’s choice, in adoption, she could do so but the boy so adopted should be
under the guardianship of his mother until attainment of majority and in that
event would be entitled to certain properties as specified in the will. Factual
score further depicts that after the death of Rosaiah, Lakshmamma filed a suit
(OS No. 52 of 1939) for a declaration as regards her entitlement to all the
properties of her husband. The mother, in her turn, also filed another suit for
administration of the estate, on the basis of the will mentioned above (OS No.
42 of 1940). It appears from the records that there was in fact a compromise
decree between both the mother and the wife of Rossiah which was recorded by
the Court on 19th April 1942.
Observation
of Court:
of Court:
We do feel it expedient to record our
concurrence therewith and as such come to the conclusion that the suit cannot
be termed to be barred by the laws of limitation.
concurrence therewith and as such come to the conclusion that the suit cannot
be termed to be barred by the laws of limitation.
Having considered the matter from all
perspectives, we do feel it expedient to record that the Division Bench of the
Andhra Pradesh High Court clearly fell into an error in not considering the
true effect of Section 2 of the Act of 1856. According to us final decision
rendered by the learned Single Judge on non-applicability of Section 14(1) of
the Hindu Succession Act remains well sustained, though on a different line of
reasoning as indicated hereinabove. Accordingly, it must be held that the
Division bench was in error in applying Section 14(1) of the Hindu Succession
Act on the fact situation in the present case.
perspectives, we do feel it expedient to record that the Division Bench of the
Andhra Pradesh High Court clearly fell into an error in not considering the
true effect of Section 2 of the Act of 1856. According to us final decision
rendered by the learned Single Judge on non-applicability of Section 14(1) of
the Hindu Succession Act remains well sustained, though on a different line of
reasoning as indicated hereinabove. Accordingly, it must be held that the
Division bench was in error in applying Section 14(1) of the Hindu Succession
Act on the fact situation in the present case.
Judgement
:
:
We, therefore, allow this appeal and set
aside the order of the Division bench. The order as passed by the learned
Single Judge stands restored. No order as to costs.
aside the order of the Division bench. The order as passed by the learned
Single Judge stands restored. No order as to costs.
———————————————
SUPREME COURT OF INDIA
NARESH KUMARI (DEAD) BY LRS, & … VS. SHAKSHI LAL
(DEAD) BY LRS, &…
(DEAD) BY LRS, &…
DATED : 5.02.1999
Summarised
Judgement
Judgement
Introduction
:
:
The question in issue is, whether a
female Hindu buying a house from a widow, a widow’s estate prior to the coming
into force of the Hindu Succession Act, 1956 (hereinafter referred to as
“the 1956 Act’), would become full owner of such house by virtue of Section
14(1) of the Act? In other words, it raises the question of interpretation of
Section 14(1) and (2), as to, whether the transferee of such widow’s estate, on
the facts of this case, would fall under sub-section (1) or (2) of Section 14?
In case it falls under Sub-section (2), it would not mature her right in such
property and thus it would revert back to the reversioners of the husband of
the widow but if it falls under sub-section (1) she would become full owner of
such property.
female Hindu buying a house from a widow, a widow’s estate prior to the coming
into force of the Hindu Succession Act, 1956 (hereinafter referred to as
“the 1956 Act’), would become full owner of such house by virtue of Section
14(1) of the Act? In other words, it raises the question of interpretation of
Section 14(1) and (2), as to, whether the transferee of such widow’s estate, on
the facts of this case, would fall under sub-section (1) or (2) of Section 14?
In case it falls under Sub-section (2), it would not mature her right in such
property and thus it would revert back to the reversioners of the husband of
the widow but if it falls under sub-section (1) she would become full owner of
such property.
Facts
of the Case :
of the Case :
It is necessary to give some of the
basic bare facts to appreciate and adjudicate the controversies of this case.
basic bare facts to appreciate and adjudicate the controversies of this case.
One Smt. Kesri, widow of Radhakishan,
sold the house in dispute to Smt, Naresh Kumari, the appellant No. 1, on 29th
January, 1954 for Rs. 3,000. Sakshi Lal and Ashwani Kumari, the respondents,
are reversioners of Radhakishan. Earlier, the said reversioners challenged the
said sale and sought declaration of the title over the said house, by filing a
suit for declaration, challenging the claim of the appellants. Their case was
that Smt. Kesri had only a limited interest in the property and thus she had no
right to sell the property without any legal necessity. On 13th June, 1955,
this suit was decreed by the Trial Court holding that the transfer, by virtue
of the said sale made by the widow was without any legal necessity and hence
void against the reversioners interest. Aggrieved by this, Smt. Nirmal Kumari
appealed before the first appellate court. During its pendency, on 17th June,
1956 the aforesaid Hindu Succession Act came into force and on 22nd May, 1957
Smt. Kesri died. Finally, on 11th June, 1958, the appeal Was also dismissed.
sold the house in dispute to Smt, Naresh Kumari, the appellant No. 1, on 29th
January, 1954 for Rs. 3,000. Sakshi Lal and Ashwani Kumari, the respondents,
are reversioners of Radhakishan. Earlier, the said reversioners challenged the
said sale and sought declaration of the title over the said house, by filing a
suit for declaration, challenging the claim of the appellants. Their case was
that Smt. Kesri had only a limited interest in the property and thus she had no
right to sell the property without any legal necessity. On 13th June, 1955,
this suit was decreed by the Trial Court holding that the transfer, by virtue
of the said sale made by the widow was without any legal necessity and hence
void against the reversioners interest. Aggrieved by this, Smt. Nirmal Kumari
appealed before the first appellate court. During its pendency, on 17th June,
1956 the aforesaid Hindu Succession Act came into force and on 22nd May, 1957
Smt. Kesri died. Finally, on 11th June, 1958, the appeal Was also dismissed.
After conclusion of the first leg of
litigation, thereafter on 10th June, 1959, the reversioners of Radhakishan, the
respondents before us, filed another suit for possession of the house in
dispute on the basis of the decree as aforesaid. The defendants, the appellants
before us, have contested the suit on the ground that on the date Smt. Kesri
died, namely, 22nd May 1957, since Hindu Succession Act came into force, Smt.
Kesri became full owner of the said property and hence she being trans-feree
from her and being in possession of this property became full owner. For such
transfer she, in fact, invested Rs. 3,000. The Trial Court decreed the suit in
favour of the plaintiff- respondents. The appeal was allowed by the Additional
District Judge, Kangra Division, thus the suit of the plaintiff was dismissed.
The second appeal by the plaintiff was allowed by the High Court by setting
aside the judgment and decree of the first appellate court and restoring the
decree of the trial court. Aggrieved by this order, the present appellants-Smt.
Naresh Kumari & Ors. have filed this appeal.
litigation, thereafter on 10th June, 1959, the reversioners of Radhakishan, the
respondents before us, filed another suit for possession of the house in
dispute on the basis of the decree as aforesaid. The defendants, the appellants
before us, have contested the suit on the ground that on the date Smt. Kesri
died, namely, 22nd May 1957, since Hindu Succession Act came into force, Smt.
Kesri became full owner of the said property and hence she being trans-feree
from her and being in possession of this property became full owner. For such
transfer she, in fact, invested Rs. 3,000. The Trial Court decreed the suit in
favour of the plaintiff- respondents. The appeal was allowed by the Additional
District Judge, Kangra Division, thus the suit of the plaintiff was dismissed.
The second appeal by the plaintiff was allowed by the High Court by setting
aside the judgment and decree of the first appellate court and restoring the
decree of the trial court. Aggrieved by this order, the present appellants-Smt.
Naresh Kumari & Ors. have filed this appeal.
Observation
of Court :
of Court :
In the present case, this does not
arise, as transfer already held to be void in the earlier suit. A possible
argument, though not argued, that in case the transfer was bad as void, the
property would be deemed to have reverted back to Smt. Kesri and on coming into
force of the 1956 Act she became full owner. Even if that be, alienee could
only succeed if there be any transfer to her after this date. There is mote in
the present case, her claim is only through the sale deed executed when she had
only limited right. On the contrary, we find that the order and decree in the
first suit results into giving an alienee a restricted right. Thus, the said
transfer would be circumscribed and restricted by the order passed in the first
suit. Thus, even on this ground it could not be said that the alienee-
appellants had unrestricted right. It is also not in dispute that the
appellants received the property not in lieu of her any pre-existing right, but
received right in the property for the first time through the sale deed. In view
of this, the appellants’ case would fall under sub-section (2). Thus, the
appellants’ right in the said property could not be upheld.
arise, as transfer already held to be void in the earlier suit. A possible
argument, though not argued, that in case the transfer was bad as void, the
property would be deemed to have reverted back to Smt. Kesri and on coming into
force of the 1956 Act she became full owner. Even if that be, alienee could
only succeed if there be any transfer to her after this date. There is mote in
the present case, her claim is only through the sale deed executed when she had
only limited right. On the contrary, we find that the order and decree in the
first suit results into giving an alienee a restricted right. Thus, the said
transfer would be circumscribed and restricted by the order passed in the first
suit. Thus, even on this ground it could not be said that the alienee-
appellants had unrestricted right. It is also not in dispute that the
appellants received the property not in lieu of her any pre-existing right, but
received right in the property for the first time through the sale deed. In view
of this, the appellants’ case would fall under sub-section (2). Thus, the
appellants’ right in the said property could not be upheld.
Judgement
:
:
In view of our aforesaid findings, none
of the submissions on behalf of the appellants could be accepted. The appeal is
devoid of any merit and thus fails and is, accordingly, dismissed. Cost on the
parties.
of the submissions on behalf of the appellants could be accepted. The appeal is
devoid of any merit and thus fails and is, accordingly, dismissed. Cost on the
parties.
———————————————
SUPREME COURT OF INDIA
MUNINANJAPPA & ORS VS. R. MANUAL & ANR DATED
: 11.04.2001
: 11.04.2001
Summarised
Judgement
Judgement
Introduction
:
:
This appeal also raises similar question
of the interpretation of a Will and consequently the right of a widow of a
benefactor under the Will. The questions raised are :
of the interpretation of a Will and consequently the right of a widow of a
benefactor under the Will. The questions raised are :
(a) Whether the right given to
Guruswamy, the benefactor under the Will dated 1st June, 1942 was a limited
right.
Guruswamy, the benefactor under the Will dated 1st June, 1942 was a limited
right.
(b) If Guruswamy had a limited right,
whether his widow Sevamma could get absolute right under Section 14(1) of the
Hindu Succession Act, 1956 to execute the impugned sale deed in favour of
respondent nos. 1 and 2.
whether his widow Sevamma could get absolute right under Section 14(1) of the
Hindu Succession Act, 1956 to execute the impugned sale deed in favour of
respondent nos. 1 and 2.
Facts
of the Case :
of the Case :
Mr. S.N. Bhat, learned counsel appearing
for the respondent submits, in interpreting a Will; intention of testatrix
should be taken into account and thus if the said Will is construed properly,
it would reveal that testatrix’s brother Lakshmaiah had two wives – one Muniyamma
and other Yellamma. Plaintiff was born from the first wife Muniyamma while
Guruswamy was bom from the second wife Yellamma. Since at the time of the
execution of the said Will both plaintiff and Guruswamy were young, hence
limited right was given to them by dividing the suit property half and half –
one going to the branch of the son bom from the first wife and second going to
the branch of son bom from the second wife. This clearly reveals testatrix
intended the property to go to two branches absolutely specially in the absence
of any reference in the Will that the property would revert to the other branch
where no son is born. Thus the right of the said two brothers even if limited
would mature into absolute right if this intention of the testatrix is read
into the Will. He further submits, in any case, even if Guruswamy had a limited
right, after his death his widow having right in lieu of maintenance out of any
estate of her husband it would mature into full right by virtue of Section
14(1) of the Hindu Succession Act.
for the respondent submits, in interpreting a Will; intention of testatrix
should be taken into account and thus if the said Will is construed properly,
it would reveal that testatrix’s brother Lakshmaiah had two wives – one Muniyamma
and other Yellamma. Plaintiff was born from the first wife Muniyamma while
Guruswamy was bom from the second wife Yellamma. Since at the time of the
execution of the said Will both plaintiff and Guruswamy were young, hence
limited right was given to them by dividing the suit property half and half –
one going to the branch of the son bom from the first wife and second going to
the branch of son bom from the second wife. This clearly reveals testatrix
intended the property to go to two branches absolutely specially in the absence
of any reference in the Will that the property would revert to the other branch
where no son is born. Thus the right of the said two brothers even if limited
would mature into absolute right if this intention of the testatrix is read
into the Will. He further submits, in any case, even if Guruswamy had a limited
right, after his death his widow having right in lieu of maintenance out of any
estate of her husband it would mature into full right by virtue of Section
14(1) of the Hindu Succession Act.
Observation
of Court:
of Court:
We find in the case before us trial
court held that Sevamma became absolute owner by virtue of Section 8 of the
Hindu Succession Act which has no legs to stand, both on facts and law. We have
already recorded Guruswamy has a limited and restrictive right, no absolute
right. His widow on the facts of this case cannot be treated to be class I heir
under the said Act. Hence both the courts below fell into error in holding that
Sevamma became absolute owner. Accordingly, the finding of both the trial court
and the appellate court are unsustainable in law. In view of the aforesaid
findings we answer the first question by holding that the Will dated 1st June,
1942, grants Guruswamy limited and restrictive right in no case to mature into
full right.
court held that Sevamma became absolute owner by virtue of Section 8 of the
Hindu Succession Act which has no legs to stand, both on facts and law. We have
already recorded Guruswamy has a limited and restrictive right, no absolute
right. His widow on the facts of this case cannot be treated to be class I heir
under the said Act. Hence both the courts below fell into error in holding that
Sevamma became absolute owner. Accordingly, the finding of both the trial court
and the appellate court are unsustainable in law. In view of the aforesaid
findings we answer the first question by holding that the Will dated 1st June,
1942, grants Guruswamy limited and restrictive right in no case to mature into
full right.
Judgement
:
:
As a consequence of this we answer the
second question by holding that Sevamma did not inherit the suit property from
her husband nor possessed it in lieu of maintenance hence question of maturing
it into full right under Section 14(1) of the Hindu Succession Act does not
arise. Thus we hold Sevamma had no right to alienate the suit property, thus
sale of the suit property in favour of respondent nos. 1 and 2 can not be held
to be valid. Thus for these reasons and findings, we set aside the findings and
the judgment of both of the trial court and the High Court and decree the suit of
the plaintiff. Costs on the parties.
second question by holding that Sevamma did not inherit the suit property from
her husband nor possessed it in lieu of maintenance hence question of maturing
it into full right under Section 14(1) of the Hindu Succession Act does not
arise. Thus we hold Sevamma had no right to alienate the suit property, thus
sale of the suit property in favour of respondent nos. 1 and 2 can not be held
to be valid. Thus for these reasons and findings, we set aside the findings and
the judgment of both of the trial court and the High Court and decree the suit of
the plaintiff. Costs on the parties.
———————————————
BOMBAY HIGH COURT
TULSABAI W/O NARAYANRAO … VS. SAKHARAM BHANU
CHAVAN & ORS.
CHAVAN & ORS.
DATED : 25.11.2005
Summarised Judgement
(Scroll for Complete Judgement)
(Scroll for Complete Judgement)
Introduction
:
:
1. This Letters Patent Appeal involves
two important questions, one regarding the applicability of Section 14(1) and
(2) of the Hindu Succession Act, 1956 and the other about interpretation of a document
called Tamliknama.
two important questions, one regarding the applicability of Section 14(1) and
(2) of the Hindu Succession Act, 1956 and the other about interpretation of a document
called Tamliknama.
2. The facts giving rise to the
controversy in question are narrated as under.
controversy in question are narrated as under.
The appellant is the legal heir of
plaintiff Tulsabai. Plaintiff Tulsabai filed Special Civil Suit No. 94 of 1972
for declaration of right of ownership and for recovery of possession of land S.
No. 100/B, commonly known as Palsa Babat admeasuring 7 acres 17 gts. and land
S. No. 139 admeasuring 35 acres 4 gts. situated at Barahalli, Tq. Mukhed,
District Nanded.
plaintiff Tulsabai. Plaintiff Tulsabai filed Special Civil Suit No. 94 of 1972
for declaration of right of ownership and for recovery of possession of land S.
No. 100/B, commonly known as Palsa Babat admeasuring 7 acres 17 gts. and land
S. No. 139 admeasuring 35 acres 4 gts. situated at Barahalli, Tq. Mukhed,
District Nanded.
Facts
of the Case :
of the Case :
According to the plaintiff, one
Gangadharrao Deshpande was the owner and possessor of the suit lands. That
Gangadharrao Deshpande died 65 years prior to the institution of the suit
leaving behind him his wife Haranabai and one daughter Tulsabai – the
plaintiff. That after the death of Gangadharrao, his wife Haranabai became the
owner of the properties of Gangadharrao Deshpande and enjoyed the possession
thereof. That the defendants Nos. 2 to 8 are the sons of one Venkatrao
Deshpande, the defendants Nos. 9 and 10 are the real brothers and the defendant
No. 11 is the nephew of defendants Nos. 9 and 10. The defendants Nos. 2 to 11
are the distant kindred of Gangadharrao. The mother of the plaintiff died on
26th November, 1969 after coming into operation of the Hindu Succession Act,
1956. It is the case of the plaintiff that Haranabai was the sole, absolute and
full owner of the properties in dispute and the defendants Nos. 2 to 11 had
absolutely no concern or right whatsoever. That Haranabai died at the age of 85
years at Degloor and before her death, had bequeathed all her properties in
favour of the plaintiff Tulsabai by a registered Will dated 17th June, 1968.
That after the death of Haranabai, Tulsabai intended to mutate the suit
properties in her name.
Gangadharrao Deshpande was the owner and possessor of the suit lands. That
Gangadharrao Deshpande died 65 years prior to the institution of the suit
leaving behind him his wife Haranabai and one daughter Tulsabai – the
plaintiff. That after the death of Gangadharrao, his wife Haranabai became the
owner of the properties of Gangadharrao Deshpande and enjoyed the possession
thereof. That the defendants Nos. 2 to 8 are the sons of one Venkatrao
Deshpande, the defendants Nos. 9 and 10 are the real brothers and the defendant
No. 11 is the nephew of defendants Nos. 9 and 10. The defendants Nos. 2 to 11
are the distant kindred of Gangadharrao. The mother of the plaintiff died on
26th November, 1969 after coming into operation of the Hindu Succession Act,
1956. It is the case of the plaintiff that Haranabai was the sole, absolute and
full owner of the properties in dispute and the defendants Nos. 2 to 11 had
absolutely no concern or right whatsoever. That Haranabai died at the age of 85
years at Degloor and before her death, had bequeathed all her properties in
favour of the plaintiff Tulsabai by a registered Will dated 17th June, 1968.
That after the death of Haranabai, Tulsabai intended to mutate the suit
properties in her name.
However, on 19-3-1969, the defendant No.
7 Malharrao submitted an application before the Talathi setting forth the plea
that he was entitled to get the mutation of the lands effected in his favour.
The plaintiff pleaded that the defendant Nos. 2 to 8, in collusion with the defendants
Nos. 9 to 11, sought to dispute the title of the plaintiff over the suit
properties. That for the year 1969-70, the defendant No. 1 Sakharam was engaged
as an agricultural labourer for cultivating the disputed land on behalf of the
plaintiff. The plaintiff then pleaded that the defendant No. 1 being the
employee of the plaintiff, had absolutely no right to remain in possession of
the disputed land but however the defendant No. 1, in collusion with defendants
Nos. 2 to 10, refused to deliver possession of the suit properties in favour of
the plaintiff in spite of repeated demands. The plaintiff, therefore, filed the
aforesaid suit for declaration of right of ownership and for recovery of
possession of the suit lands.
7 Malharrao submitted an application before the Talathi setting forth the plea
that he was entitled to get the mutation of the lands effected in his favour.
The plaintiff pleaded that the defendant Nos. 2 to 8, in collusion with the defendants
Nos. 9 to 11, sought to dispute the title of the plaintiff over the suit
properties. That for the year 1969-70, the defendant No. 1 Sakharam was engaged
as an agricultural labourer for cultivating the disputed land on behalf of the
plaintiff. The plaintiff then pleaded that the defendant No. 1 being the
employee of the plaintiff, had absolutely no right to remain in possession of
the disputed land but however the defendant No. 1, in collusion with defendants
Nos. 2 to 10, refused to deliver possession of the suit properties in favour of
the plaintiff in spite of repeated demands. The plaintiff, therefore, filed the
aforesaid suit for declaration of right of ownership and for recovery of
possession of the suit lands.
Observation
of Court :
of Court :
Thus after dealing with the respective
pleadings of the parties, the short oral evidence which is produced on record
and the relevant documents, which are produced by the respective parties for
substantiating their claims over the suit properties, we are of the considered
view that the learned trial Court as well as the learned Single Judge was not
justified in dismissing the suit of the plaintiff for a declaration of the
ownership of the suit lands and for possession thereof.
pleadings of the parties, the short oral evidence which is produced on record
and the relevant documents, which are produced by the respective parties for
substantiating their claims over the suit properties, we are of the considered
view that the learned trial Court as well as the learned Single Judge was not
justified in dismissing the suit of the plaintiff for a declaration of the
ownership of the suit lands and for possession thereof.
In view of the observations made hereinabove,
we hold that Gangadharrao was the absolute owner of the suit property and after
his demise in the year 1909, Haranabai, his widow, succeeded to the property of
her husband subject to certain restrictions. That the possession of Haranabai
over the suit properties prior to 1919 and even thereafter, could not be said
to be without any right or interest therein. As already discussed hereinabove,
it was Section 14(1) and not Section 14(2) of the Act which applied to the
case.
we hold that Gangadharrao was the absolute owner of the suit property and after
his demise in the year 1909, Haranabai, his widow, succeeded to the property of
her husband subject to certain restrictions. That the possession of Haranabai
over the suit properties prior to 1919 and even thereafter, could not be said
to be without any right or interest therein. As already discussed hereinabove,
it was Section 14(1) and not Section 14(2) of the Act which applied to the
case.
Hence, after 1956, the limited ownership
of Haranabai transformed into full ownership. That in view of the Will executed
by Haranabai, her only daughter Tulsabai, the plaintiff, became the absolute
owner of the suit property. Having held so, we set aside the judgment of the
learned Civil Judge, Senior Division, Nanded dated 26-9-1975 and also the
judgment dated 18-11-1983 passed by the learned Single Judge and we hereby
declare that the plaintiff is the absolute owner of the suit lands and is also
entitled to the possession thereof. The respondents are directed to place the
appellant in possession of the suit properties. We further direct an enquiry
into mesne profits as accruing from the period commencing three years preceding
the institution of the suit until the delivery of possession.
of Haranabai transformed into full ownership. That in view of the Will executed
by Haranabai, her only daughter Tulsabai, the plaintiff, became the absolute
owner of the suit property. Having held so, we set aside the judgment of the
learned Civil Judge, Senior Division, Nanded dated 26-9-1975 and also the
judgment dated 18-11-1983 passed by the learned Single Judge and we hereby
declare that the plaintiff is the absolute owner of the suit lands and is also
entitled to the possession thereof. The respondents are directed to place the
appellant in possession of the suit properties. We further direct an enquiry
into mesne profits as accruing from the period commencing three years preceding
the institution of the suit until the delivery of possession.
Judgement
:
:
We, therefore, allow the Letters Patent
Appeal. However, in the facts of the case, there would be no order as to costs.
After
pronouncement of the judgment, the counsel appearing on behalf of the
respondents make a prayer that the effect and operation of the judgment may be
stayed for a period of eight weeks. That since the respondents are in
possession of the property for nearly 30 years, we feel that it would be in the
interest of justice to stay the effect and operation of the judgment for a
period of eight weeks from today.
Appeal. However, in the facts of the case, there would be no order as to costs.
After
pronouncement of the judgment, the counsel appearing on behalf of the
respondents make a prayer that the effect and operation of the judgment may be
stayed for a period of eight weeks. That since the respondents are in
possession of the property for nearly 30 years, we feel that it would be in the
interest of justice to stay the effect and operation of the judgment for a
period of eight weeks from today.
———————————————
SUPREME COURT OF INDIA
GOPALAKRISHNA (D) BY LRS. .. VS. NARAYANAGOWDA
(Dead) BY LRS. ..
(Dead) BY LRS. ..
DATED : 3.04.2019
Summarised
Judgement
Judgement
Introduction
: The
case of the appellants is as follows:-
: The
case of the appellants is as follows:-
One Ramanna was the owner of the
properties which are scheduled to the plaint. He passed away in 1907. He was
married to Jankamma (first wife) who predeceased him. The second wife Seethamma
passed away in the year 1938. Through his first wife (Jankamma), he had a
daughter named Venkamma. Venkamma passed away in 1910. Venkamma, in turn, had a
daughter named Jankamma. The appellants before us claimed right to the
properties by virtue of sale deeds executed by Jankamma in the year 1955.
properties which are scheduled to the plaint. He passed away in 1907. He was
married to Jankamma (first wife) who predeceased him. The second wife Seethamma
passed away in the year 1938. Through his first wife (Jankamma), he had a
daughter named Venkamma. Venkamma passed away in 1910. Venkamma, in turn, had a
daughter named Jankamma. The appellants before us claimed right to the
properties by virtue of sale deeds executed by Jankamma in the year 1955.
Facts
of the Case :
of the Case :
After the sale executed by Jankamma, the
father of the first plaintiff and the second plaintiff claimed that they were
in possession of the suit properties. The respondents filed the suits (bearing
O.S. Nos. 211 and 213 of 1955) for declaration of their title and injunction.
The said suit was decreed by the Trial Court. The High Court in second appeal
set aside the decree of the lower court and confirmed the sale of Jankamma in
favour of the first plaintiff’s father and the second plaintiff and held that
title to the properties could not be decided. It is their case that since
Venkamma survived Ramanna, Jankamma became a full owner of the properties and
through her under the sale deed, the plaintiffs claimed absolute ownership, and
sued for declaration of title, recovery of possession and mesne profits.
father of the first plaintiff and the second plaintiff claimed that they were
in possession of the suit properties. The respondents filed the suits (bearing
O.S. Nos. 211 and 213 of 1955) for declaration of their title and injunction.
The said suit was decreed by the Trial Court. The High Court in second appeal
set aside the decree of the lower court and confirmed the sale of Jankamma in
favour of the first plaintiff’s father and the second plaintiff and held that
title to the properties could not be decided. It is their case that since
Venkamma survived Ramanna, Jankamma became a full owner of the properties and
through her under the sale deed, the plaintiffs claimed absolute ownership, and
sued for declaration of title, recovery of possession and mesne profits.
Observation
of Court :
of Court :
Even proceeding on the basis that
Jankamma, the grand-daughter of Ramanna was a reversioner, her estate in
expectancy became vested in her, upon the death of the Ramanna’s widow,
Seethamma in 1938. While it is true that it was open to the reversioner to
ignore the sale deed executed by the widow, as not binding on her, as far as
suit for recovery of possession, the law clearly provided for a period of 12
years and the period of limitation started with the death of the limited owner,
namely, the widow in 1938. The time started ticking with the passing away of
the widow in 1938. The period of limitation being 12 years, it ran out in 1950.
With the running out of the period of limitation prescribed under the
Limitation Act, 1908 (by Articles 140 and 141), the very right of the alleged
reversioner Jankamma also came to an end. Thus, when she executed the sale in
the year 1955 in favour of the appellants, she could not have conveyed any
right. That apart, even for a moment, proceeding on the basis that period of
limitation would start from 12 years from 1955 when the sale deed was executed
in favour of the appellants by Jankamma even that period ran out in 1967.
Jankamma, the grand-daughter of Ramanna was a reversioner, her estate in
expectancy became vested in her, upon the death of the Ramanna’s widow,
Seethamma in 1938. While it is true that it was open to the reversioner to
ignore the sale deed executed by the widow, as not binding on her, as far as
suit for recovery of possession, the law clearly provided for a period of 12
years and the period of limitation started with the death of the limited owner,
namely, the widow in 1938. The time started ticking with the passing away of
the widow in 1938. The period of limitation being 12 years, it ran out in 1950.
With the running out of the period of limitation prescribed under the
Limitation Act, 1908 (by Articles 140 and 141), the very right of the alleged
reversioner Jankamma also came to an end. Thus, when she executed the sale in
the year 1955 in favour of the appellants, she could not have conveyed any
right. That apart, even for a moment, proceeding on the basis that period of
limitation would start from 12 years from 1955 when the sale deed was executed
in favour of the appellants by Jankamma even that period ran out in 1967.
Judgement
:
:
In such circumstances, we see no reason
to interfere with the judgment of the High Court. The appeals will stand
dismissed with no order as to costs.
to interfere with the judgment of the High Court. The appeals will stand
dismissed with no order as to costs.
MADRAS HIGH COURT
V. SAMPATHKUMARI VS. M. LAKSHMI AMMAL
DATED : 26.10.1961
Summarised
Judgement
Judgement
Introduction
:
:
Three main contentions were urged by
him. The first related to the applicability of Section 14(1) of the Hindu
Succession Act of 1956 to this case. It consisted of two parts, the first part
factual and the other part legal. The factual part consisted in the argument
that the possession of the estate by the 2nd defendant amounted to alienation
of the properties by the widows and consequently the widows should be held to
be not in possession of the estate when alone the operation of Section 14(1) of
the Act would be attracted. The argument has been dealt with fully by my
learned brother and I do not propose to add anything more to what he has said.
I agree with him that the possession of the estate, either move-able or
immoveable, by the and defendant does not amount to alienation of it by the
widows, as he occupies the position of an agent of the widows or one of them.
him. The first related to the applicability of Section 14(1) of the Hindu
Succession Act of 1956 to this case. It consisted of two parts, the first part
factual and the other part legal. The factual part consisted in the argument
that the possession of the estate by the 2nd defendant amounted to alienation
of the properties by the widows and consequently the widows should be held to
be not in possession of the estate when alone the operation of Section 14(1) of
the Act would be attracted. The argument has been dealt with fully by my
learned brother and I do not propose to add anything more to what he has said.
I agree with him that the possession of the estate, either move-able or
immoveable, by the and defendant does not amount to alienation of it by the
widows, as he occupies the position of an agent of the widows or one of them.
Facts
of the Case :
of the Case :
The facts in , were these. The last
maleholder Rajendra Singh died in 1931, leaving as his heir only his
grandmother Mst. Ari Kuer, the thirteeth defendant in the suit. In 1951 she
executed two sale deeds in favour of defendants 2, 3, and 4. The suit was
brought by the plaintiffs claiming to be the nearest reversioners of Rajendra
Singh in 1951 for a declaration that the alienations were without legal
necessity and were nominal. The trial judge found that the sale deeds were
neither genuine nor were acted upon and there was in fact no legal necessity or
consideration. The declaration prayed for was therefore granted.
maleholder Rajendra Singh died in 1931, leaving as his heir only his
grandmother Mst. Ari Kuer, the thirteeth defendant in the suit. In 1951 she
executed two sale deeds in favour of defendants 2, 3, and 4. The suit was
brought by the plaintiffs claiming to be the nearest reversioners of Rajendra
Singh in 1951 for a declaration that the alienations were without legal
necessity and were nominal. The trial judge found that the sale deeds were
neither genuine nor were acted upon and there was in fact no legal necessity or
consideration. The declaration prayed for was therefore granted.
During the pendency of the appeal
preferred by the defendants in the High Court the Hindu Succession Act had come
into force. The appellants contended that Section 14 had become a complete
defence to the plaintiffs’ suit. The learned Judges repelled this contention
pointing out that Section 14 was not intended to enlarge the estate of the
alienees. Thereupon the appellants relied upon the Supreme Court decision in
and urged that on the findings of the trial judge that the sale deeds were not
acted upon at all and were nominal, Mst. Ari Kuer must still be deemed to be
possessed of the properties for the purposes of Section 14(1) of the Act.
preferred by the defendants in the High Court the Hindu Succession Act had come
into force. The appellants contended that Section 14 had become a complete
defence to the plaintiffs’ suit. The learned Judges repelled this contention
pointing out that Section 14 was not intended to enlarge the estate of the
alienees. Thereupon the appellants relied upon the Supreme Court decision in
and urged that on the findings of the trial judge that the sale deeds were not
acted upon at all and were nominal, Mst. Ari Kuer must still be deemed to be
possessed of the properties for the purposes of Section 14(1) of the Act.
This submission was also repelled and in
doing so the learned Judge distinguished the Supreme Court decision emphasising
the difference between a transaction which is void and a transaction which is
voidable at the instance of the reversioners and they pointed out that in the
Supreme Court decision, the adoption was assumed to be void ab initio and
therefore destitute of any legal effect and that was why the actual possession
of the adopted son was held to be permissive on behalf of Veeravva. But in the
case before the learned Judges the sale deeds executed by Mst. Ari Kuer could
not be said to be void but were good against Mst. Ari Kuer herself and even the
reversioners might eventually elect to abide by it. We agree with this
decision. But of course Mr. Gopalaswami Aiyangar does not tely on it.
doing so the learned Judge distinguished the Supreme Court decision emphasising
the difference between a transaction which is void and a transaction which is
voidable at the instance of the reversioners and they pointed out that in the
Supreme Court decision, the adoption was assumed to be void ab initio and
therefore destitute of any legal effect and that was why the actual possession
of the adopted son was held to be permissive on behalf of Veeravva. But in the
case before the learned Judges the sale deeds executed by Mst. Ari Kuer could
not be said to be void but were good against Mst. Ari Kuer herself and even the
reversioners might eventually elect to abide by it. We agree with this
decision. But of course Mr. Gopalaswami Aiyangar does not tely on it.
Observation
of Court :
of Court :
It is justified on the ground that there
was no actual transfer of possession from the widow to the alience and that
therefore Section 14(1) was properly applied. We do not think it necessary to
discuss it further. Similarly in the decision of the Patna High Court in
Ramsewak v. Sheopujan, , also there is a discussion of the scope of the word
“possessed” in Section 14(1). In view of the Supreme Court decision
we do not think it necessary to discuss that case either in detail.
was no actual transfer of possession from the widow to the alience and that
therefore Section 14(1) was properly applied. We do not think it necessary to
discuss it further. Similarly in the decision of the Patna High Court in
Ramsewak v. Sheopujan, , also there is a discussion of the scope of the word
“possessed” in Section 14(1). In view of the Supreme Court decision
we do not think it necessary to discuss that case either in detail.
Judgement
:
:
In the result, we hold agreeing with the
learned Subordinate Judge that the plaintiff’s suit must fail because of
Section 14(1) of the Hindu Succession Act, even taking the plaint allegations
to be true. The dismissal of the suit was therefore justified, but we do not
think that the learned Subordinate Judge was right in asking the plaintiff to
bear the costs of the contesting defendants when the dismissal of the suit was
based on a ground which arose subsequent to the institution of the plaint and
when the original allegations had not been tried. The proper order to make was
to direct the parties to bear their own costs and we feel that the same
direction should be made for the costs in the appeal, particularly when the
question raised is agitated for the first time in this Court. Accordingly,
while dismissing the appeal we direct the parties to bear their own costs in
both the Courts.
learned Subordinate Judge that the plaintiff’s suit must fail because of
Section 14(1) of the Hindu Succession Act, even taking the plaint allegations
to be true. The dismissal of the suit was therefore justified, but we do not
think that the learned Subordinate Judge was right in asking the plaintiff to
bear the costs of the contesting defendants when the dismissal of the suit was
based on a ground which arose subsequent to the institution of the plaint and
when the original allegations had not been tried. The proper order to make was
to direct the parties to bear their own costs and we feel that the same
direction should be made for the costs in the appeal, particularly when the
question raised is agitated for the first time in this Court. Accordingly,
while dismissing the appeal we direct the parties to bear their own costs in
both the Courts.
———————————————
ORISSA HIGH COURT
RADHI BEWA & ANR. VS. BHAGWAN SAHU
DATED : 09.02.1951
Summarised Judgement
Introduction
:
:
For the purpose of the present
discussion, it is of importance to consider at what point of time the right
accrues to the widow under the Act.
discussion, it is of importance to consider at what point of time the right
accrues to the widow under the Act.
Facts
of the Case :
of the Case :
The essential facts have been fully set
out in the judgment of my learned brother Justice Das. Appellant Radhi Bewa (who was defendant No. 2
in the original suit) is the widow of one Bairagi who died sometime in 1932 or
1934. Respondent Bhagawan (plaintiff no. 1) is the own brother of Batragi and
respondents Brundaban and Hrudanand (plaintiffs 2 and 3) are the sons of
another brother of Bhagawan and Bairagi named Natha who is dead. There was
another brother of Bhagawan named Bharat who died leaving a widow named Keluni
(defendant no. 1) and a daughter (defendant no 3.) They were also parties to
the litigation in the early stages and it appears that they eventually
compromised with the plaintiffs. The whole case proceeded on the assumption
that the Mitakshara coparcenary which originally consisted of Bhagawan and his
three brothers Natha, Bharat and Bairagi remained in tact even after the death
of Natha, Bharat and Bairagi and that at present the surviving coparceners are
Bhagawan on the one hand and Natha’s two sons Brundaban and Hrudanand on the
other. They, therefore, claimed the suit property (which are agricultural
lands) as the surviving members of the coparcenary and urged that appellant
Radhi Bewa who is the widow of a deceased coparcener whose death took place
prior to 1937 was entitled only to maintenance.
out in the judgment of my learned brother Justice Das. Appellant Radhi Bewa (who was defendant No. 2
in the original suit) is the widow of one Bairagi who died sometime in 1932 or
1934. Respondent Bhagawan (plaintiff no. 1) is the own brother of Batragi and
respondents Brundaban and Hrudanand (plaintiffs 2 and 3) are the sons of
another brother of Bhagawan and Bairagi named Natha who is dead. There was
another brother of Bhagawan named Bharat who died leaving a widow named Keluni
(defendant no. 1) and a daughter (defendant no 3.) They were also parties to
the litigation in the early stages and it appears that they eventually
compromised with the plaintiffs. The whole case proceeded on the assumption
that the Mitakshara coparcenary which originally consisted of Bhagawan and his
three brothers Natha, Bharat and Bairagi remained in tact even after the death
of Natha, Bharat and Bairagi and that at present the surviving coparceners are
Bhagawan on the one hand and Natha’s two sons Brundaban and Hrudanand on the
other. They, therefore, claimed the suit property (which are agricultural
lands) as the surviving members of the coparcenary and urged that appellant
Radhi Bewa who is the widow of a deceased coparcener whose death took place
prior to 1937 was entitled only to maintenance.
Radhi Bewa’s main contention however was
that though she became a widow prior to 1937 there was nothing in the
provisions of the Hindu Women’s Rights to Property Act, 1937 to disentitle her
from claiming an interest in the property of her deceased husband under
Sub-section (2) of Section 3 of that Act in view of the fact that the
coparcenary has yet been disrupted. She, therefore, claimed the share of her
deceased husband. My lord the Chief Justice took the view that though the Hindu
Women’s Rights to Property Act, 1937 (Act XVIII of 1937) as amended by the
amending Act of 1938 (Act XI of 1938) was not retrospective in the broad sense
in which it is ordinarily understood yet there was nothing in that Act to
prevent the widow of a deceased coparcener who died prior to 1937 leaving an
interest in the joint family from claiming that interest when that interest had
not vested in any person either by partition amongst the coparceners or
otherwise.
that though she became a widow prior to 1937 there was nothing in the
provisions of the Hindu Women’s Rights to Property Act, 1937 to disentitle her
from claiming an interest in the property of her deceased husband under
Sub-section (2) of Section 3 of that Act in view of the fact that the
coparcenary has yet been disrupted. She, therefore, claimed the share of her
deceased husband. My lord the Chief Justice took the view that though the Hindu
Women’s Rights to Property Act, 1937 (Act XVIII of 1937) as amended by the
amending Act of 1938 (Act XI of 1938) was not retrospective in the broad sense
in which it is ordinarily understood yet there was nothing in that Act to
prevent the widow of a deceased coparcener who died prior to 1937 leaving an
interest in the joint family from claiming that interest when that interest had
not vested in any person either by partition amongst the coparceners or
otherwise.
Observation
of Court :
of Court :
The point to be considered is whether we
can legitimately draw any presumption as to the intention of a person who has
died intestate. I venture to point out respectfully that if it is permissible
to say that a man did not leave a will, because he was satisfied with the state
of the law regarding the order of succession to his estate, it is equally
permissible to say that his intention might have been to let the law take its
course and that he was not thinking of any particular heir at all. It being
impossible to predicate as to who would succeed to the estate until the
succession opens, it is difficult to say that a person who dies intestate had
contemplated at the time of his death that he would be succeeded by any
particular person or persons. There will be still less justification for
presuming that if he had known that a change was going to be effected in the
existing law, he would have disposed of his property by means of a will.
can legitimately draw any presumption as to the intention of a person who has
died intestate. I venture to point out respectfully that if it is permissible
to say that a man did not leave a will, because he was satisfied with the state
of the law regarding the order of succession to his estate, it is equally
permissible to say that his intention might have been to let the law take its
course and that he was not thinking of any particular heir at all. It being
impossible to predicate as to who would succeed to the estate until the
succession opens, it is difficult to say that a person who dies intestate had
contemplated at the time of his death that he would be succeeded by any
particular person or persons. There will be still less justification for
presuming that if he had known that a change was going to be effected in the
existing law, he would have disposed of his property by means of a will.
That being so, there is no question of
frustrating the presumed intention of a person to whose estate the Act applies,
and as already stated, to hold that the Act applies only when succession opens
is not to give it a retrospective effect and therefore the principles bearing
upon the question as to when a statute shall be construed to have retrospective
operation have no relevancy.
frustrating the presumed intention of a person to whose estate the Act applies,
and as already stated, to hold that the Act applies only when succession opens
is not to give it a retrospective effect and therefore the principles bearing
upon the question as to when a statute shall be construed to have retrospective
operation have no relevancy.
Judgement
:
:
It is therefore ordered that this appeal
be allowed and that the widow concerned will have the same interest in the
joint family property as her husband had at the time of his death. There will
be no order for costs.
be allowed and that the widow concerned will have the same interest in the
joint family property as her husband had at the time of his death. There will
be no order for costs.
———————————————
SUPREME COURT OF INDIA
CONTROLLER OF ESTATE DUTY MADRAS VS. ALLADI KUPPUSWAMY
DATED : 3.05.1977
Summarised
Judgement
Judgement
Introduction :
The respondent filed an appeal before
the Board and contended that as Smt. Alladi died as a Hindu widow she possessed
no coparcenary interest which could pass on her death: her interest merged
without any benefit accruing or arising to the coparceners and hence s. 7
sub-s. (1) had no application.
the Board and contended that as Smt. Alladi died as a Hindu widow she possessed
no coparcenary interest which could pass on her death: her interest merged
without any benefit accruing or arising to the coparceners and hence s. 7
sub-s. (1) had no application.
Facts of the Case :
In order to decide the question of law
arising in the appeal, it may be necessary to set out briefly the facts of the
case.
arising in the appeal, it may be necessary to set out briefly the facts of the
case.
1. Whether, on the facts and in the
circumstances of the case, one-fourth share of the deceased in the joint family
properties, to which she was entitled under section 3 of the Hindu Women’s
Rights to Property Act, 1937, was correctly included in her estate as property
deemed to pass on her death under section 7 of the Estate Duty Act, 1953 ?
circumstances of the case, one-fourth share of the deceased in the joint family
properties, to which she was entitled under section 3 of the Hindu Women’s
Rights to Property Act, 1937, was correctly included in her estate as property
deemed to pass on her death under section 7 of the Estate Duty Act, 1953 ?
2. Whether, on the facts and in the
circumstances of the case, the accrued inter- est on fixed deposits and
Government securi- ties up to the date of death of the deceased was correctly
included in her estate under section 34(2) of the Estate Duty Act, 1953 ?
circumstances of the case, the accrued inter- est on fixed deposits and
Government securi- ties up to the date of death of the deceased was correctly
included in her estate under section 34(2) of the Estate Duty Act, 1953 ?
Although three questions had been
referred to the High Court by the Board at the hearing of the appeal the
respondent gave up questions Nos. 2 and 3 and confined his arguments only to
question No. 1 which falls for determination in this case. The High Court,
relying mainly on the decisions of the Privy Council in Attorney-General of
Ceylon v. Arunacha- lam Chettiar;(1) and Gartside v. Inland Revenue’
Commission- ers(2) came to the conclusion that the interest of Smt. Alladi was
not a coparcenary interest which could have passed under s. 7 (1) of the Act
and as the said interest was incapable of valuation was not exigible to estate
duty. Thereafter the appellant applied to the High Court for granting a
certificate of fitness for leave. to appeal to this Court and the same having
been granted the appeal has now been placed before us for hearing.
referred to the High Court by the Board at the hearing of the appeal the
respondent gave up questions Nos. 2 and 3 and confined his arguments only to
question No. 1 which falls for determination in this case. The High Court,
relying mainly on the decisions of the Privy Council in Attorney-General of
Ceylon v. Arunacha- lam Chettiar;(1) and Gartside v. Inland Revenue’
Commission- ers(2) came to the conclusion that the interest of Smt. Alladi was
not a coparcenary interest which could have passed under s. 7 (1) of the Act
and as the said interest was incapable of valuation was not exigible to estate
duty. Thereafter the appellant applied to the High Court for granting a
certificate of fitness for leave. to appeal to this Court and the same having
been granted the appeal has now been placed before us for hearing.
Observation
& Judgement :
& Judgement :
By virtue of the provisions of the Act
of 1937 a Hindu widow undoubtedly possesses a coparcenary interest as con-
templated by s. 7( 1 ) of the Act and she is also a member of a Hindu
copercenary as envisaged by s. 7(2) of the Act. On the death of Smt. Alladi,
therefore, there was clearly a cesser of her interest and her interest merged
in the coper- cenary property and by reason of the inclusive part of sub- s. (1
) of s. 7, it must be taken to have passed on her death and was hence exigible
to estate duty. Since Smt Alladi was a member of the copercenary, this interest
of her’s which passed on her death was liable to be valued in accordance with
the method provided by s. 39 of the Act. The interpretation of s. 40 of the Act
is not free from difficulty, but as the present case squarely falls within the
ambit of s. 7 (1 ) latter part and sub-s. (2) of s. 7 of the Act which attracts
s. 39, it is not at all necessary for us to enter into the complex domain of
the scope and ambit of s. 40 of the Act in this case.
of 1937 a Hindu widow undoubtedly possesses a coparcenary interest as con-
templated by s. 7( 1 ) of the Act and she is also a member of a Hindu
copercenary as envisaged by s. 7(2) of the Act. On the death of Smt. Alladi,
therefore, there was clearly a cesser of her interest and her interest merged
in the coper- cenary property and by reason of the inclusive part of sub- s. (1
) of s. 7, it must be taken to have passed on her death and was hence exigible
to estate duty. Since Smt Alladi was a member of the copercenary, this interest
of her’s which passed on her death was liable to be valued in accordance with
the method provided by s. 39 of the Act. The interpretation of s. 40 of the Act
is not free from difficulty, but as the present case squarely falls within the
ambit of s. 7 (1 ) latter part and sub-s. (2) of s. 7 of the Act which attracts
s. 39, it is not at all necessary for us to enter into the complex domain of
the scope and ambit of s. 40 of the Act in this case.
The result is that the appeal is
allowed, the judgment of the High Court is set aside and the question referred
to the High Court is answered in the affirmative. There will be no order as to
costs.
allowed, the judgment of the High Court is set aside and the question referred
to the High Court is answered in the affirmative. There will be no order as to
costs.
SUPREME COURT OF INDIA
SATRUGHAN ISSER
VS. SMT. SUBUJPARI
VS. SMT. SUBUJPARI
DATED : 4.08.1966
Summarised
Judgement
Judgement
Introduction :
The Judgment of the Court was delivered
by Shah, J. Musamat Chando Kuer, widow of Babuji, instituted a suit on April
23, 1949 in the Court of the Sabordinate Judge, Darbhanga, against the
collaterals of her husband for a decree for partition and separate possession
of a half share in the properties described in Schedules A to E and a fourth
share in Sch. F annexed to the plaint. It was the case of Chando Kuer that her
husband Babuji separated in 1934 from the coparcenary of which he was a member,
and on his death on October 28, 1937 his share in the family property devolved
upon her, but the defendants failed and neglected to divide the estate and
deliver to her the share inherited by her. The suit was resisted by the
collaterals of Babuji. Chando Kuer died on March 9, 1951, and her daughters
Subujpari and Sujan Devi (hereinafter collectively called ‘the appellants’)
were brought on the record of the suit as her heirs and legal representatives.
by Shah, J. Musamat Chando Kuer, widow of Babuji, instituted a suit on April
23, 1949 in the Court of the Sabordinate Judge, Darbhanga, against the
collaterals of her husband for a decree for partition and separate possession
of a half share in the properties described in Schedules A to E and a fourth
share in Sch. F annexed to the plaint. It was the case of Chando Kuer that her
husband Babuji separated in 1934 from the coparcenary of which he was a member,
and on his death on October 28, 1937 his share in the family property devolved
upon her, but the defendants failed and neglected to divide the estate and
deliver to her the share inherited by her. The suit was resisted by the
collaterals of Babuji. Chando Kuer died on March 9, 1951, and her daughters
Subujpari and Sujan Devi (hereinafter collectively called ‘the appellants’)
were brought on the record of the suit as her heirs and legal representatives.
Facts
of the Case :
of the Case :
The plea of separation of Babuji from
the coparcenary in 1934 was not established, and that the interest of Babuji in
the copercenary property devolved upon the surviving coparceners, the Trial
Court dismissed the suit. In appeal, the High Court of Judicature at Patna,
granted a decree for possession of a share in the property as at the date of
the suit. The held that on the death of Babuji on October 28, 1937, Chando Kuer
by virtue of the Hindu Women’s Rights to Property Act, IS of 1937, acquired in
the property of the coparcenary the same interest which Babuji had, and by the
institution of the suit for partition that interest became defined, and oil her
death it devolved upon the appellants as heirs to the estate of Babuji. With
certificate granted by the High Court, Satrughan the son of Ghiran has appealed
to this Court.
the coparcenary in 1934 was not established, and that the interest of Babuji in
the copercenary property devolved upon the surviving coparceners, the Trial
Court dismissed the suit. In appeal, the High Court of Judicature at Patna,
granted a decree for possession of a share in the property as at the date of
the suit. The held that on the death of Babuji on October 28, 1937, Chando Kuer
by virtue of the Hindu Women’s Rights to Property Act, IS of 1937, acquired in
the property of the coparcenary the same interest which Babuji had, and by the
institution of the suit for partition that interest became defined, and oil her
death it devolved upon the appellants as heirs to the estate of Babuji. With
certificate granted by the High Court, Satrughan the son of Ghiran has appealed
to this Court.
Under the Mitakshara school of Hindu
law, on the death of a coparcener his individual interest in the coparcenary
property devolves by survivorship upon the remaining coparceners, and his widow
if any is entitled to maintenance only out of the property. But the Parliament
enacted Act 18 of 1937 which sought to invest the widow in a family governed by
the Mitakshara law with the same interest which her husband had in the family
estate at the time of his death, and also with the right to obtain by partition
separate possession other interest
law, on the death of a coparcener his individual interest in the coparcenary
property devolves by survivorship upon the remaining coparceners, and his widow
if any is entitled to maintenance only out of the property. But the Parliament
enacted Act 18 of 1937 which sought to invest the widow in a family governed by
the Mitakshara law with the same interest which her husband had in the family
estate at the time of his death, and also with the right to obtain by partition
separate possession other interest
Observation
& Judgement of Court :
& Judgement of Court :
On the finding recorded by the Trial
Court which was not challenged in appeal before the High Court, Babuji did not
separate in 1934 from the other coparceners. But he died in October 1937 and by
the operation of Act 18 of 1937 as modified by Bihar Act 6 of 1942 Chando Kuer
was invested with her husband’s interest in the coparcenary property
agricultural as well as non-agricultural. When she instituted a suit for
partition that interest became de- fined, and vested in her free from all
claims or rights of the coparceners of her husband. The right of the
coparceners to take that interest by survivorship on Chando Kuer’s death was
then extinguished. On her death, even though the interest was not separated by
metes and bounds, and was not in her exclusive possession it still devolved
upon the nearest heirs of her husband, her daughters. The suit was therefore
rightly decreed by the High Court. The appeal fails and is dismissed with
costs.
Court which was not challenged in appeal before the High Court, Babuji did not
separate in 1934 from the other coparceners. But he died in October 1937 and by
the operation of Act 18 of 1937 as modified by Bihar Act 6 of 1942 Chando Kuer
was invested with her husband’s interest in the coparcenary property
agricultural as well as non-agricultural. When she instituted a suit for
partition that interest became de- fined, and vested in her free from all
claims or rights of the coparceners of her husband. The right of the
coparceners to take that interest by survivorship on Chando Kuer’s death was
then extinguished. On her death, even though the interest was not separated by
metes and bounds, and was not in her exclusive possession it still devolved
upon the nearest heirs of her husband, her daughters. The suit was therefore
rightly decreed by the High Court. The appeal fails and is dismissed with
costs.
———————————————
DELHI HIGH COURT
ASHOK KUMAR VS. KISHAN KUMAR
DATED : 24.08.1982
Summarised Judgement
Introduction :
This suit by two brothers claiming a
declaration in respect of immoveable properties and for possession of a part
thereof and recovery of damages mesne profits in respect of the use and
occupation of a part of it, inter alia, raises an interesting question as to
the circumstances in which and the conditions on which a limited estate, held
by a Hindu widow, may mature into an absolute estate by virtue of the provision
of Section 14(1) of Hindu Succession Act, 1956.
declaration in respect of immoveable properties and for possession of a part
thereof and recovery of damages mesne profits in respect of the use and
occupation of a part of it, inter alia, raises an interesting question as to
the circumstances in which and the conditions on which a limited estate, held
by a Hindu widow, may mature into an absolute estate by virtue of the provision
of Section 14(1) of Hindu Succession Act, 1956.
Facts
of the Case :
of the Case :
The facts and circumstances leading to
the suit are, by and large, beyond controversy. One Umrao Singh, who held joint
Hindu family properties as the sole surviving coparcener, executed a Will on
January 9, 1927, duly registered on January 27, 1927, in terms whereof he bequeathed one of the properties absolutely
in favor of Kalawati, widow of his pre-deceased son, Onkar Prasad, and created
two successive life estates in respect of other properties, one in favor of
Kalawati aforesaid, and the other in favor of her daughter, Shanti Devi, then
an infant, and purported to bequeath the absolute ownership of the properties,
forming subject-matter of life estates, to the male issue of Shanti Devi. Onkar
Prasad had died in 1922. Umrao Singh died in 1928. Kalawati died in 1967 and
Shanti Devi died in 1969. Kalawati assumed control and possession of the
properties, forming subject matter of the absolute estate, as well as the life
estate, and during her life time, alienated the property, which formed subject
matter of the absolute estate in her favor.
the suit are, by and large, beyond controversy. One Umrao Singh, who held joint
Hindu family properties as the sole surviving coparcener, executed a Will on
January 9, 1927, duly registered on January 27, 1927, in terms whereof he bequeathed one of the properties absolutely
in favor of Kalawati, widow of his pre-deceased son, Onkar Prasad, and created
two successive life estates in respect of other properties, one in favor of
Kalawati aforesaid, and the other in favor of her daughter, Shanti Devi, then
an infant, and purported to bequeath the absolute ownership of the properties,
forming subject-matter of life estates, to the male issue of Shanti Devi. Onkar
Prasad had died in 1922. Umrao Singh died in 1928. Kalawati died in 1967 and
Shanti Devi died in 1969. Kalawati assumed control and possession of the
properties, forming subject matter of the absolute estate, as well as the life
estate, and during her life time, alienated the property, which formed subject
matter of the absolute estate in her favor.
When she died in 1967, she was survived
not only by her daughter, Shanti Devi, but also a son, Krishan Kuma.r,
defendant No. 1, who was admittedly born to Kalawati, but according to the
plaintiffs, not during the lifetime of her husband or soon thereafter, but
after a lapse of 10 years of the death of Onkar Prasad and was, therefore, an
illegitimate child. When Shanti Devi died in 1969, the plaintiffs were
admittedly her only male issues. During the lifetime of Kalawati. Krishan
Kumar, defendant No. 1, was living with his mother in a part of one of the
properties and continued to be in possession of that portion after her death.
Defendants 2 to 5 are the tenants in the properties and were paying rent to
Kalawati. Defendant No. 6 is another tenant, who had apparently been inducted
in a portion of the property by defendant No. 1.
not only by her daughter, Shanti Devi, but also a son, Krishan Kuma.r,
defendant No. 1, who was admittedly born to Kalawati, but according to the
plaintiffs, not during the lifetime of her husband or soon thereafter, but
after a lapse of 10 years of the death of Onkar Prasad and was, therefore, an
illegitimate child. When Shanti Devi died in 1969, the plaintiffs were
admittedly her only male issues. During the lifetime of Kalawati. Krishan
Kumar, defendant No. 1, was living with his mother in a part of one of the
properties and continued to be in possession of that portion after her death.
Defendants 2 to 5 are the tenants in the properties and were paying rent to
Kalawati. Defendant No. 6 is another tenant, who had apparently been inducted
in a portion of the property by defendant No. 1.
Observation
of Court :
of Court :
If Kalawati held the property as an absolute
estate by virtue of sub-section (1 ) of Section 14 of the Hindu Succession Act,
either because the devise of a life estate in her favor in the will of the
testator was a grant in recognition of of an existing right arising out of the
right of being maintained out of the property or she held the property over the
years by way of adverse possession, it follows that on her death, the second
bequest in favor of Shanti Devi, as in. deed, the further bequest in favor of
the plaintiffs stood frustrated, and the property passed by succession to two
heirs of Kalawati i.e. defendant No. 1 and her sister, Shanti Devi.
estate by virtue of sub-section (1 ) of Section 14 of the Hindu Succession Act,
either because the devise of a life estate in her favor in the will of the
testator was a grant in recognition of of an existing right arising out of the
right of being maintained out of the property or she held the property over the
years by way of adverse possession, it follows that on her death, the second
bequest in favor of Shanti Devi, as in. deed, the further bequest in favor of
the plaintiffs stood frustrated, and the property passed by succession to two
heirs of Kalawati i.e. defendant No. 1 and her sister, Shanti Devi.
This would
disentitle the plaintiffs to the declaration sought by them. Whether the
plaintiffs succeeded to the half share that fall to the share of Shanti Devi as
her sons or there were other heirs of Shanti Devi entitled to take the property
along with the plaintiffs, is a further question with which I am not concerned
in the present suit, the claim of the plaintiffs in the suit being solely based
on the right flowing from the Will.
disentitle the plaintiffs to the declaration sought by them. Whether the
plaintiffs succeeded to the half share that fall to the share of Shanti Devi as
her sons or there were other heirs of Shanti Devi entitled to take the property
along with the plaintiffs, is a further question with which I am not concerned
in the present suit, the claim of the plaintiffs in the suit being solely based
on the right flowing from the Will.
Judgement
:
:
For all these reasons, the suit fails
and is hereby dismissed but, in the peculiar circumstances, leaving the parties
to bear their respective costs.
and is hereby dismissed but, in the peculiar circumstances, leaving the parties
to bear their respective costs.
PG – 30/12/2019