Patna High Court
Lachhmini Devi & Ors vs Raj Kishore Prasad & Ors on 17 October, 2012
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
Patna High Court SA No.3 of 2004 dt.17-10-2012
1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.3 of 2004
(Against the judgment and decree dated 30.09.2003 passed by the
learned 3rd Additional District Judge, Nawadah in Title Appeal
No.15 of 1989/4 of 2003 allowing the appeal and reversing the
judgment and decree dated 17.03.1989 passed by learned
Additional Munsif, Nawadah in Title Suit No.32 of 1976/18 of
1989).
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Lachhmini Devi & Ors
.... .... Appellant/s
Versus
Raj Kumar Prasad & Ors
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. S.S.Dvivedi, Sr. Advocate
Mr. Sourendra Pandey
Mr. Suniti Kumari
Mr. Ranjan Kumar Dubey
Mr. Sangeeta Sharma
Mr. Rakesh Chandra, Advocates.
For the Respondent/s : Mr. Dinu Kumar, Advocate
Mr. Arvind Kr.Sharma, Advocate.
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
CAV JUDGMENT
Date: 17-10-2012
Mungeshwar 1. The plaintiffs have filed this Second Appeal
Sahoo, J.
against the judgment and decree dated 30.09.2003 passed by the
learned 3rd Additional District Judge, Nawadah in Title Appeal No.15
of 1989/4 of 2003 whereby the Lower Appellate Court allowed the
appeal and thereby reversed the trial court judgment and decree dated
17.03.1989passed by the Additional Munsif, Nawadah in Title Suit No.32 of 1976/18 of 1989 dismissing the plaintiff's suit.
2. The plaintiffs-appellants filed the aforesaid suit for partition of the suit property to the extent of half share. The plaintiffs Patna High Court SA No.3 of 2004 dt.17-10-2012 2 claimed the aforesaid relief of partition to the extent of half share alleging that Pran Mahto was the common ancestor of the parties who died leaving behind 3 sons namely Rajnath Mahto, Ramo Mahto and Govind Mahto. After the death of Pran Mahto, three sons came in possession of the suit property. Rajnath Mahto and his wife died issueless, therefore, Ramo Mahto and Govind Mahto came in possession jointly over the entire suit property by the rule of survivorship. Both the brothers separated in mess and dwelling house and partitioned their movable properties half and half but remained in joint possession in immovable properties described in Schedule A of the plaint. Ramo Mahto died in the year 1939 leaving behind his widow, Deoki Kunwar, plaintiff no.1 and daughter, Lacchmini Devi, plaintiff no.2 and her son, plaintiff no.3. After death of Ramo Mahto, the plaintiffs came in possession of the immovable suit properties. Govind Mahto died in the year 1974 leaving behind his two sons namely Raj Kumar Prasad and Nand Kishore Prasad who came in joint possession of the properties. After the death of Govind Mahto, differences arose in the family regarding cultivation of the suit land. Hence, the suit was filed by the plaintiffs.
3. The defendants appeared and filed contesting written statement mainly contending that Ramo Mahto continued as member of the coparcenery family and there was neither any separation nor partition between Ramo Mahto and Govind Mahto. Ramo Mahto died Patna High Court SA No.3 of 2004 dt.17-10-2012 3 in the year 1935 on 20.03.1935 in the state of jointness with Govind Mahto. The plaintiff no.1 being the widow was entitled to maintenance only which she has been receiving which has also been noted in the current survey record of right. On the death of Ramo Mahto, the property devolved on Govind Mahto by the rule of survivorship. The plaintiff no.1 being a widow prior to coming into force of 1937 Act i.e. Hindu Women's Right to Property Act, 1937 had only the right to maintenance.
4. The trial court decreed the plaintiff's suit recording the finding that Ramo Mahto died in the year 1939. There is unity of title and possession between the parties and accordingly, decreed the plaintiff's suit. Appeal was filed by the defendants-respondents. The Appellate Court after reappreciating the evidences recorded a finding that Ramo Mahto died in the year 1935 and reversed the finding of the trial court and then allowed the appeal and trial court judgment was set aside.
5. It appears that this Second Appeal was heard in admission matter by this High Court on 24.06.2008 and the Second Appeal was dismissed finding that the question which was sought to be raised regarding the year of death of Ramo Mahto was a question of fact and not a substantial question of law. The appellant then filed review application which was also dismissed. Thereafter, the appellant filed Civil Appeal No.2419-20 of 2010 before the Apex Patna High Court SA No.3 of 2004 dt.17-10-2012 4 Court and the Apex Court allowed the Civil Appeal and set aside the order passed by this High Court and the Apex Court framed the substantial question of law for decision in this Second Appeal and remitted the matter. The substantial question of law formulated by the Apex Court is quoted hereunder:
"Whether the right to maintenance of a widow is a pre-existing right which existed under the Hindu Law long before the Acts of 1937 or 1946 came into existence. In other words the Act of 1937 or 1946 has merely recognized the position of Hindu widow as was existing under the Shastrik Law and gave it a statutory backing. The limited right of maintenance of a widow of any time as held by the Supreme Court has been enlarged by Section 14(1) of Hindu Succession Act 1956 and a widow has become absolute owner of the property possessed by it. It is well settled that possession of one-sharer is the possession of all. Ext. I is an admitted document not challenged and thereby the plaintiff No.1 was in possession of the suit land jointly and thereby according to Apex Court the widow's right of maintenance is a pre-existing right and that right has been enlarged after 1956 and the widow became absolute owner and hence in this case the plaintiff No.1 became absolute owner and is entitled to partition or not?"
6. Thereafter, the Second Appeal was again listed under Order 41 Rule 11 C.P.C. and by terms of order dated 28.09.2010, the same substantial question of law was formulated as formulated by the Apex Court.
7. The learned senior counsel, Mr. S.S. Dvivedi appearing on behalf of the appellant submitted that the right to maintenance of a widow is pre-existing right which was only recognized by the Act of Patna High Court SA No.3 of 2004 dt.17-10-2012 5 1937 or 1946. The said limited right to maintenance has been enlarged by Section 14(1) of the Hindu Succession Act, 1956 and the widow became the absolute owner of the property possessed by her. According to the learned counsel, on the death of Ramo Mahto in the year 1935, the plaintiff no.1 came in joint possession of the suit property in recognition of her right to be maintained and it is settled principles of law that the possession of a co-sharer is possession of all co-sharers. In such circumstances, even if the widow was not in de facto possession of the property, she will be deemed to be in possession of the property because of the said principle that possession of co-sharer will be for the benefit of the possession of other co-sharers. According to the learned counsel, this right of the widow became absolute with regard to the property possessed by the widow in view of Section 14(1) of the 1956 Act. Both the courts below have misconstrued the provisions of Section 14(1) of the 1956 Act. The word "possessed of" will not mean only the physical possession of the widow. The widow may be in possession through either her co-sharer or through any other person because the widow being the lady is not expected to keep her feet on the land itself.
8. On the other hand, the learned counsel for the respondents submitted that on the death of Ramo Mahto, his widow was entitled to maintenance only and property devolved by the rule of survivorship on the defendants. The right to maintenance was only a Patna High Court SA No.3 of 2004 dt.17-10-2012 6 charge on the property and it does not create any right or ownership to the property. So far the finding that Ramo Mahto died in 1935 is concerned, it is a finding of fact. Therefore, on his death, the property devolved on the defendants and the plaintiff no.1 was getting maintenance regularly as such, she was never in possession of the property. The principle of possession of co-sharer is possession of other co-sharer will not apply in the present case, because plaintiff was never the co-sharer of the defendant. A right of a widow for being maintained cannot be equated with right of an owner or co- sharer. Therefore, she was neither owner nor co-sharer after the death of her husband. In such circumstances, Section 14(1) of 1956 Act will not help the plaintiff no.1.
9. For better appreciation of the substantial question of law formulated by the Apex Court, Section 14 of the Hindu Succession Act is quoted here-in-below for ready reference:
"Property of a female Hindu to be her absolute property.- (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.- In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana Patna High Court SA No.3 of 2004 dt.17-10-2012 7 immediately before the commencement of this Act.
(2) Nothing contained in sub-section(1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
10. Therefore, in view of the provision as contained in Section 14 of the Hindu Succession Act, the property possessed by a female Hindu whether acquired before or after the commencement of Hindu Succession Act shall be held by her as full owner. In the present case, at our hand, the case of the plaintiff no.1 is that after death of her husband, she came in joint possession of the property and became the absolute owner after coming into force of this Hindu Succession Act according to Section 14. There is nothing on record to show that over which property she was in possession on the commencement of this Act.
11. The word "possessed" has been considered in the light of this provision by the Apex Court in various decisions. In one case i.e. the case of Mangal Singh and others vs. Smt. Rattno and another, AIR 1967 Supreme Court 1786, the Apex Court at paragraph 7 has held as follows:
"7. It is significant that the Legislature begins S. 14 (1) with the words "any property possessed by a female Hindu" and not any property in possession of a female Hindu." If the expression used had been "in possession of' instead of "possessed by", the proper interpretation would probably have been to hold that, in order to apply this provision, the property must be such as is either in actual possession of the female Patna High Court SA No.3 of 2004 dt.17-10-2012 8 Hindu or in her constructive possession. The constructive possession may be through a lessee, mortgagee, licensee, etc. The use of the expression "possessed by" instead of the expression "in possession of", in our opinion, was intended to enlarge the meaning of this expression. It is commonly known in English language that a property is said to be possessed by a person, if he is its owner, even though he may, for the time being, be out of actual possession or even constructive possession. The expression "possessed by" is quite frequently used in testamentary documents, where the method of expressing the property, which is to pass to the legatee, often adopted is to say that "all property I dispossessed (Sic) of shall pass to......." In such documents, wills, etc., where this language is used, it is clear that whatever rights the testator had in the property would pass to the legatee, even though, at the time when the will is executed or when the will becomes effective, the testator might not be in actual, physical or constructive possession of it. The legatee will, in such a case, succeed to the right to recover possession of that property in the same manner in which the testator could have done. Stroud in his Judicial Dictionary of Words and Phrases Vol. 3, at p. 2238, has brought out this aspect when defining the scope of the words "possess" and "possessed." When dealing with the meaning of the word "possession Stroud defines "possession" as being in two ways, either actual possession or possession in law. He goes on to say that "actual possession is when a man enters in deed into lands or tenements to him descended, or otherwise. Possession in law is when lands or tenements are descended to a man, and he has not as yet really, actually, and in deed, entered into them." In Wharton's Law Lexicon, 14th Edn., at p. 777, the word "possession" is defined as being equivalent to "the state of owning or having a thing in one's own hands or power." Thus, three different meanings are given; one is the state of owning, the second is having a thing in one's own hands, and the third is having a thing in one's own power. In case where property is in actual physical possession, obviously it would be in one's own hands. If it is in constructive possession, it would be in one's own power. Then, there is the third case where there Patna High Court SA No.3 of 2004 dt.17-10-2012 9 may not be actual, physical or constructive possession and, yet, the person still possesses the right to recover actual physical possession or constructive possession; that would be a case covered by the expression "the state of owning". In fact, elaborating further the meaning of the word "possession", Wharton goes on to say that "it is either actual, where a person enters into lands or tenements descended or conveyed to him; apparent, which is a species of presumptive title where land descended to the heir of an abator, intruder, or disseisor, who died seised; in law, when lands, etc., have descended to a man, and he has not actually entered into them; or naked, that is, mere possession, without colour of right."
It appears to us that the expression used in S. 14 (1) of the Act was intended to cover cases of possession in law also, where lands may have descended to a female Hindu and she has not actually entered into them. It would, of course, cover the other cases of actual or constructive possession. On the language of S. 14 (1), therefore, we hold that this provision will become applicable to any property which is owned by a female Hindu, even though she is not in actual, physical or constructive possession of that property."
12. In view of the above decision of the Apex Court, Section 14(1) of the Hindu Succession Act(hereinafter referred to as "the Act") will become applicable to any property which is owned by a Hindu female even though she is not in actual physical or constructive possession of that property. Therefore, the condition precedent is that the property must be owned. In the present case at our hand, the finding of the Lower Appellate Court is that her husband died in the year 1935. On the death of her husband, the property devolved on the defendants according to the principles of survivorship. Therefore, she was not the owner of the property of her husband. She became the Patna High Court SA No.3 of 2004 dt.17-10-2012 10 limited owner only after commencement of the Hindu Women's Right to Property Act, 1937. Prior to that, she was not recognized as owner of the property of her husband.
13. On this question which is being raised here in this Second Appeal, the Apex Court in the case of V. Tulasamma v. V. Sesha Reddi, AIR 1977 Supreme Court 1944, the Apex Court considered all earlier decisions on this point and held at paragraph 27 as follows:
"27. Thus on a careful consideration and detailed analysis of the authorities mentioned above and the Shastric Hindu Law on the subject, the following propositions emerge with respect to the incidence and characteristics of a Hindu woman's right to maintenance:
(1) that a Hindu woman's right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her even if he has no property. If the husband has property then the right of the widow to maintenance becomes an equitable charge on the property and any person who succeeds to the property carries with it the legal obligation to maintain the widow;
(2) though the widow's right to maintenance is not a right to property but it is undoubtedly a pre-
existing right in property, i. e. it is a jus ad rem not jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a decree from the civil court;
(3) that the right of maintenance is a matter of moment and is of such importance that even if the joint property is sold and the purchaser has notice of the widow's right to maintenance, the purchaser is legally bound to provide for her maintenance;
(4) that the right to maintenance is undoubtedly a pre-existing right which existed in the Hindu Law long before the passing of the Act of 1937 or the Act of 1946, and is, therefore, a pre-existing Patna High Court SA No.3 of 2004 dt.17-10-2012 11 right ;
(5) that the right to maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which the wife becomes a sort of co-owner in the property of her husband, though her coownership is of a subordinate nature; and (6) that where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to property or purchases the same is in a position to make due arrangements for her maintenance.
14. In view of the decisions of the Apex Court in the case of V. Tulasamma(supra), the right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her even if he has no property. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain widow. The right of the widow to maintain is not a right to property but it is a pre-existing right in property i.e. it is jus ad rem not jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a decree from the civil court.
15. In the present case, the plaintiff no.1 is the widow prior to coming into force of the Act in the year 1937. Therefore, her right was only to maintenance and she could have created a charge for her maintenance on the property either by an agreement or by obtaining a Patna High Court SA No.3 of 2004 dt.17-10-2012 12 decree from the civil court but it is not the case that she came in possession of any particular property granted to her either by agreement or by decree of court for the purpose of maintenance. No doubt, the right to maintenance is undoubtedly a pre-existing right which was in existence long before passing of the Act of 1937 or the Act of 1946 but it is only a charge on the property and it is not a right to property. In view of the above decision of the Apex Court where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to property or purchases the same is in a position to make due arrangement for her maintenance. It is not the case of the plaintiff no.1 that she continued in possession of the share of her husband.
16. This decision of the Apex Court has again been followed in AIR 1998 Supreme Court 2401(Raghubar Singh vs. Gulab Singh). The Apex Court held that the right to maintenance of Hindu female flows from the social and temporal relationship between the husband and the wife and that right in the case of a widow is a pre- existing right, which existed under the Shashtric Hindu Law long before the passing of 1937 or 1946 Act. These Acts merely recognized the position as was existing under the Shashtric Hindu Law and gave it a statutory backing. Where a Hindu widow is in possession of the property of her husband, she has a right to be Patna High Court SA No.3 of 2004 dt.17-10-2012 13 maintained out of it and she is entitled to retain the possession of that property in lieu of her right to maintenance. This is the settled principles of law. Here, in the present case, admittedly, the suit has been filed by the plaintiff claiming share in the suit property. It is not her case that in lieu of her right to be maintained, she continued in possession of this or that property. Therefore, she was not possessed of any property on the date of commencement of Hindu Succession Act as such no question of holding her as full owner thereof in view of Section 14(1) of the Hindu Succession Act arises.
17. In view of the above settled proposition of law, now it is clear that the pre-existing right to maintenance of the Hindu widow is not a right to property. She cannot be termed as either co-sharer or co-owner. In such view of the matter, the principles applicable to either co-sharer or co-owner will not apply so far Hindu widow whose husband died prior to coming into force of 1937 Act is concerned i.e. the principle that possession of co-owner is possession of all co-owner or possession of co-sharer is possession of all co-sharer.
18. So far Exhibit 1 is concerned, it is khatiyan wherein Deoki Kunwar has been shown as one sharer. It is settled law that entry in the revenue record of right neither creates title nor extinguishes title. If according to law, the property devolved according to rule of survivorship then merely because her name is appearing in Exhibit 1, it cannot be said that she was owner of even Patna High Court SA No.3 of 2004 dt.17-10-2012 14 limited owner of the property nor there can be presumption that she was in possession of any particular property. In the revisional survey record of right, her name has been entered as maintenance holder.
19. In view of the above discussion and in view of the settled proposition of law laid down by the Apex Court in the above decisions, I find that the plaintiff no.1 had only the right to maintenance and no right was created in her favour because of entry in the Exhibit-I on the death of her husband and no property was possessed of by her and Section 14(1) of the Hindu Succession Act do not recognize any joint possession.
20. In view of the above discussion, the substantial question of law formulated is answered against the appellants. Accordingly, this Second Appeal is dismissed. In the facts and circumstances of the case, no order as to cost.
(Mungeshwar Sahoo, J) Saurabh/A.F.R.