SUPREME COURT OF INDIA
VELAMURI VENKATA SIVAPRASAD … VS. KOTHURI VENKATESWARLU (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.
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 :
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.
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.
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:
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.
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.
Act on the fact situation in the present case.
Judgement
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:
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.
Single Judge stands restored. No order as to costs.
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SUPREME COURT OF INDIA
NARESH KUMARI (DEAD) BY LRS, & … VS. SHAKSHI LAL (DEAD) BY LRS, &…
DATED : 5.02.1999
Summarised
Judgement
Judgement
Introduction
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:
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.
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 :
It is necessary to give some of the 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.
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.
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 :
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.
Judgement
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:
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.
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SUPREME COURT OF INDIA
MUNINANJAPPA & ORS VS. R. MANUAL & ANR DATED
: 11.04.2001
: 11.04.2001
Summarised
Judgement
Judgement
Introduction
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:
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 :
(a) Whether the right given to 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.
Facts 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.
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:
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.
Judgement
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:
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.
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BOMBAY HIGH COURT
TULSABAI W/O NARAYANRAO … VS. SAKHARAM BHANU
CHAVAN & ORS.
CHAVAN & ORS.
DATED : 25.11.2005
Summarised Judgement (Scroll for Complete Judgement)
Introduction
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:
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.
2. The facts giving rise to the 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.
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 :
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 :
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.
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.
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.
Judgement
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:
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.
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SUPREME COURT OF INDIA
GOPALAKRISHNA (D) BY LRS. .. VS. NARAYANAGOWDA (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.
Facts 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.
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 :
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.
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
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:
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.
MADRAS HIGH COURT
V. SAMPATHKUMARI VS. M. LAKSHMI AMMAL
DATED : 26.10.1961
Summarised
Judgement
Judgement
Introduction
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:
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.
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 :
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.
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.
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.
Observation 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.
“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.
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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.
Facts 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.
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.
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 :
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.
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.
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.
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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.
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.
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 ?
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 ?
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.
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 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.
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.
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 :
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.
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
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.
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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.
Facts 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.
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.
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 :
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.
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.
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.
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