Himachal Pradesh High Court
Dharam Dass Alias Dharam Singh vs Of on 8 September, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 418 of 2003 .
Reserved on: 31.8.2015 Decided on: 8.9.2015 ______________________________________________________ Dharam Dass alias Dharam Singh. ...Appellant.
Versus
of
Puran Dass and others. ...Respondents.
______________________________________________________________ Coram:
rt Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting?1 Yes For the Appellant : Mr. Bhupender Gupta, Sr. Advocate with Mr. Neeraj Gupta, Advocate.
For the Respondents : Respondents No.1 to 3, 5, 7 to 11 and 13 ex parte.
Respondents No. 6 and 12 deleted.
____________________________________________________________ Justice Rajiv Sharma, Judge.
This Regular Second Appeal is directed against the judgment and decree dated 11.7.2003 rendered by the District Judge, Kinnaur Civil Division at Rampur Bushahr in Civil Appeal No. 15 of 2003.
2. "Key facts" necessary for the adjudication of this appeal are that the appellant-plaintiff and proforma 1 Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 2 respondent (herein after referred to as 'plaintiffs' for convenience sake) instituted a suit for declaration to the .
effect that the plaintiffs were co-owners to the extent of their shares specified in the plaint and the revenue entries to the contrary were wrong and illegal and also for declaration that the plaintiffs were in possession as co-owners and also of sought injunction restraining all or any of the respondents-
defendants (hereinafter referred to as 'defendants' for rt convenience sake) from interfering with the possession of the plaintiffs. Maju died in the year 1959. He was survived by his son Sami and daughter-in-law Poshi, who was the widow of his pre-deceased son Sohju. Maju was tenant to the extent of half share in respect of land as entered in Khata Khatauni No. 3/18 to 3/20 Kitas 32 total measuring 5 Bighas and 5 biswas, situated in Mauja Ghat Tehsil Rampur, District Shimla as per Jamabandi for the year 1956-57. The other half share of the land was entered in the name of Dalku and Tirlu, who were tenants to the extent of remaining half share in equal shares and they were now succeeded by defendants No.5 and 6 namely Kodu and Lathu. Similarly, late Shri Maju was tenant in respect of half share of land as entered against khata Khatauni No. 3/23, Khasra No. 120 measuring 9 ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 3 biswas situated in village Ghat, Tehsil Rampur, District Shimla/ Mahasu, as per Jamabandi for the year 1956-57.
.
The state of things continued till 1964-65 as reflected in the Jamabandi for the year 1964-65. The land described was recorded against Khata Khatauni No. 7/7 to 7/11 kitas 34 measuring 58 bighas 14 biswas in the Jamabandi for the of year 1969-70. The tenancy rights of the said persons matured into ownership rights and the same were duly rt recorded in mutation Nos. 2210 and 2213 of Mauza Ghat.
The land mentioned and entered against Khata Khatauni No.11/22, Khasra No.167/1 measuring 9 bighas and 8 biswas situated in Mauza Ghat, as per Jamabandi for the year 1969-70 was recorded in the tenancy of Sami and Poshi to the extent of half share and the other half share was recorded under the tenancy of Dalku and Tirlu. In the year 1960, Poshi widow of late Sh. Sohju son of Maju remarried one Lathu. She begot from the loins of Lathu 4 children, namely, Silu, Fuli, Lumi and Puran Dass. On the remarriage of Poshi, under the provisions of law, she ceased to be a tenant or to have any sort of right, title or interest in the land. In the alternative, it was stated that after the death of Poshi, all her rights in the suit land reverted back to Sami ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 4 under the provisions of Hindu Succession Act. Sami died in the year 1968 leaving behind Magi, Dharam Das, Fariku, .
Nairu and Fedru. According to the plaintiffs, Poshi widow of Sohju predeceased son of Maju, remarried when she had tenancy rights in the suit land, therefore, Sami predecessor-
in-interest of the plaintiffs and proforma defendants became of the tenants over the entire land and the entries to the contrary are wrong and illegal. In the alternative, plaintiffs rt on the death of Poshi, became owner of the land of Poshi, which she inherited from her father-in-law as the widow of predeceased son.
3. Suit was contested by the defendants. Defendants have taken the preliminary objection with regard to limitation. Defendants denied the claim of the plaintiffs and alleged that Poshi was never lawfully married to Lathu.
Defendants have further denied that Poshi ceased to have any interest on the suit land or that the suit land reverted back to the plaintiffs or their predecessor-in-interest, under the provisions of the Hindu Succession Act. According to the defendants, Poshi became absolute owner of the suit property under Section 14 of the Hindu Succession Act.
::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 54. Plaintiffs also moved an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the .
plaint. It was allowed by the District Judge, Rampur and amended plaint was filed. Amended written statement was also filed. Defendants have denied the remarriage of Poshi with Lathu and the estate of Maju was not to be governed by of Section 67 of the HP Abolition of Big Landed Estates and Land Reforms Act, 1953.
5.
rt
Issues were framed by the trial Court on
12.3.1996 and additional issues were framed on 25.4.2000.
Learned Sub Judge, 1st Class dismissed the suit on 27.12.2002. Plaintiffs preferred an appeal before the District Judge against the judgment and decree dated 27.12.2002.
The District Judge dismissed the appeal on 11.7.2003.
Hence, one of the plaintiffs, Shri Dharam Dass preferred an appeal against the judgment and decree dated 11.7.2003.
Santu was arrayed as plaintiff-proforma respondent. The Regular Second Appeal was admitted on the following substantial questions of law:
"1. When both the courts below have wrongly invoked the provisions of Hindu Succession Act in holding Smt. Poshi to be absolute owner of the suit land, by ignoring that the dispute between the parties was with respect to the right of tenancy of ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 6 the suit land? Were not the rights of the parties governed by provisions of HP Abolition of Big Landed Estate and Land Reforms At, 1953?
.
2. Whether the widow in preference of male lined descendant have held the tenancy right as owner when it was proved that such widow ceased to have any right on the tenancy land on account of her remarriage. Have not both the courts below presumed the ownership in favour of Smt. Poshi and misapplied the provision of Section 14 of the Hindu Succession Act, 1956 rejecting the claim of the plaintiffs-appellant to have acquired of the valid right of tenancy exclusively after the death of Shri Maju?
3. Whether both the Courts below have wrongly held the suit of the plaintiffs-appellant to be barred by limitation when the land rt was still joint and the plaintiffs were claiming the joint ownership and possession of the suit land with respect to the land which was earlier held as tenancy land?"
6. Mr. Bhupender Gupta, learned Senior Advocate has vehemently argued that both the courts below have wrongly invoked the provisions of Section 14 of the Hindu Succession Act, 1956. He has also contended that the tenancy rights after the remarriage of Poshi ceased. He has further contended that the suit was filed within limitation.
7. I have heard the learned counsel for the appellant and have gone through the records carefully.
8. Since all the substantial questions of law are interlinked and interconnected the same are taken up ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 7 together for determination to avoid repetition of discussion of evidence.
.
9. PW-1 Mohan Lal Patwari has testified that he was posted as Patwari in Patwar Circle Majholi since 9.8.1995.
According to him, Ext. PA Jamabandi for the year 1956-57 was correct as per original. He has also proved copy of of Jamabandi Ext. PB for the year 1960-61 and Ext. PC for the year 1969-70. According to him, Jamabandi for the year rt 1974-75 Ext. PF and PG, for the year 1979-80 Ext. PH and Ex.PI and for the year 1984-85 Ext. PJ and PK were correct.
He has proved Missal Hakiyat Bandobast Jadid Ext. PL and Ex.PM and copy of Shajra Nasab Ext. PN. He has admitted that the entries of tenancy could not be recorded without order of the superior officer. He has also admitted that whenever there is entry in the revenue record, a Rapat is recorded in Rojnamcha Wakiyati.
10. PW-2 Rikhu has deposed that plaintiff Dharam Dass was resident of his village. Defendants were known to him. Poshi was also known to him. Poshi was married to Sohju. No issue was borne from the loins of Sohju and Poshi.
Poshi lived in the house of Lathu as his wife and defendants No. 1 to 4 were borne from the loins of Poshi and Lathu.
::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 8Lathu had brought Poshi in his house and she resided with Lathu as his wife. The marriage ceremony was not performed .
between Poshi and Lathu. Poshi died when she was about 35-40 years old. Poshi died about 59 years ago. She resided with Sohju only for one and half years and thereafter Sohju died. Thereafter, Poshi resided in the house of Lathu. Maju of was also known to him and Poshi married Sohju according to the customs of the area. Statement of PW-2 Rikhu was again recorded on rt 8.12.2000. He has reiterated the earlier statement. According to him, Sami used to reside in a separate house. The widow of Sohju used to reside with Maju. He has admitted that Sami did not take possession of land allotted to Poshi by Maju. Maju became owner of the property during his life time.
11. PW-3 Dharam Dass has deposed that Maju was non occupancy tenant. Maju died in the year 1959. Sami and Sohju were sons of Maju and Sohju died in the year 1955.
When Maju died his property devolved upon Sami and Poshi, who was widow of Sohju. No child was born out of loins of Sohju and Poshi. Marriage between Poshi and Lathu was performed in his presence and four children were born from the loins of the Lathu and Poshi. He has proved legal heir ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 9 certificate of Lathu Ext. PW-3/A. According to him, the proprietory rights were conferred in the year 1972. The legal .
heirs of Lathu have been shown as owners of the suit property illegally. Statement of PW-3 Dharam Dass was again recorded on 18.12.2000. According to him, the property was illegally devolved upon Poshi after the death of Maju and of proprietary rights were performed in the presence of plaintiffs. He has admitted that Maju died on 29.8.1959 and rt Sohju died in the year 1955. Maju and Sohju used to reside jointly and after the death of Sohju, Maju and his daughter-
in-law resided jointly. He has also admitted that after the death of Maju on 14.2.1957, property was devolved upon Maju and Sami in equal shares and mutation was also sanctioned.
12. PW-4 Chandu Lal has deposed that the parties were known to him. Maju had two sons, namely, Sami and Sohju. Sami had four sons, namely, Fariku, Nieru, Fedru and Dharam Dass. Fariku had died and his son Sant Ram and widow were alive. Sohju was issueless. Sohju died prior to Maju and Poshi remarried with Lathu. He has further admitted that defendants No.1 to 4 were born from the loins of Poshi and Lathu. Maju was tenant under Ayodhya Nath ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 10 Temple and thereafter, proprietary rights were conferred.
When Maju died his age was 5-6 years.
.
13. DW-1 Puran Dass has deposed that Poshi was owner of the suit property qua her share. He has admitted that four sons were born from the loins of Poshi and Lathu.
14. DW-2 Lawda has deposed that Sami, Maju, Poshi of and Sohju were known to him. Sohju died prior to the death of Maju. Poshi was daughter in law of Maju and widow of rt Sohju. The land was in possession of Maju which was owned by Ayodhya Nath Temple.
15. DW-3 Kodu has deposed that the parties were known to him. Maju had two sons, namely, Sami and Sohju.
Sami used to reside separately from Maju. When Sohju died, Sami had already separated from Maju. After the death of Sohju, Maju used to reside with Poshi.
16. DW-1 Puran Dass was cross-examined on 11.6.2002. He has deposed that Poshi was his mother. She died 30-31 years ago. The plaintiffs have no legal right over the suit property. Statement of DW-2 Lawda was again recorded on 11.6.2002. He has reiterated that Maju had two sons, namely, Sami and Sohju. Maju divided his land during his life time. Sohju died prior to Maju and the name of widow ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 11 of Sohju was Poshi. Poshi used to cultivate the land after the death of Sohju. Statement of DW-3 Kodu was again recorded .
on 11.6.2002. He has also reiterated that Maju, Dalku and Tilu were three brothers. Maju had two sons, namely, Sami and Sohju. Sohju died prior to Maju and the widow of Sohju was Poshi. Sami used to reside separate from Maju during of his life time. After the death of Poshi, share of Poshi was devolved upon her children, defendants No.1 to 4.
rt Defendants No.1 to 4 were in possession of the suit land.
17. Mr. Bhupender Gupta, learned Senior Advocate has vehemently argued that after the remarriage of Poshi, she has ceased to be tenant of the suit land and had no right, title or interest. The suit land had devolved upon Sami and Poshi in equal shares vide mutation No. 2190. It was attested on 14.2.1956. It has come in the evidence, as discussed herein above, that Sami had separated from Maju during his life time. He used to reside separately. Sohju used to reside with Maju prior to his death and thereafter Maju and Poshi used to reside jointly. Poshi was shown to be widow of Sohju at the time of attestation of mutation in 1956 vide mutation No. 2156. Poshi died somewhere in the year 1971. The property devolved upon her legal heirs and the mutation was ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 12 attested in favour of Puran Dass, Shilu, Fuli and Lumbi on 10.6.1971 vide mutation No. 2224. According to the .
Jamabandis for the year 1956-57, 1960-61, 1964-65 and 1969-70, Poshi was recorded in possession of the suit land qua her share.
18. Mr. Bhupender Gupta, learned Senior Advocate of has also argued that after the death of Maju, suit land was to be devolved upon his sons under Section 67 of the H.P. rt Abolition of Big Landed Estates and Land Reforms Act, 1953.
In the revenue record, from the year 1956-57, in the column of cultivation, name of Poshi was recorded. After the death of Poshi, her legal heirs Puran Dass, Shilu, Fuli and Lumbi were recorded. The plaintiffs have not led any evidence to show that they remained in possession of the suit land at any given point of time. The proprietary rights were conferred upon legal heirs of Poshi in the year 1975. Mutations were also attested. The plaintiffs have neither examined Patwari nor Tehsildar who have conferred the proprietary rights in favour of legal heirs of Poshi. It has come on record that Sami used to reside separately from Sohju. The land was divided between Sami and Poshi. The possession was also handed over to Sami and Poshi. The possession of defendants is ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 13 proved as per deposition of DW-1 Puran Dass, DW-2 Lawda and DW-3 Kodu.
.
19. Case of the plaintiffs was that Maju was inducted as tenant and limited tenancy rights were inherited by Poshi as per Section 67 of the H.P. Abolition of Big Landed Estates and Land Reforms Act, 1953. Case projected by the of defendants in written statement was that Maju was owner of the suit land from the very beginning and they have inherited rt the property from Poshi after her death. Even if it is assumed hypothetically that Maju was tenant, even then the limited tenancy inherited by Poshi has to be matured as per section 14 of the Hindu Succession Act.
20. Their lordships of the Hon'ble Supreme Court in Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva and others reported in AIR 1959 SC 577, have held that the words "possessed" in Section 14 of the Hindu Succession Act, 1956 is used in a broad sense and in the context means the state of owning or having in once hand or power. Their lordships have held as under:
"11. In the case before us, the essential question for consideration is as to how the words "any property possessed by a female Hindu, whether acquired before or after the commencement of this Act" in S. 14 of the Act should be interpreted. Section 14 refers to property ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 14 which was either acquired before or after the commencement of the Act and that such property should be possessed by a female Hindu. Reference to property acquired before the commencement of the .
Act certainly makes the provisions of the section retrospective, but even in such a care the property must be possessed by a female Hindu at the time the Act came into force in order to make the provisions of the section applicable. There is no question in the present case that Veeravva acquired the property of her deceased husband before the commencement of the Act. In order that the provisions of S. 14 may apply to the present case it will have to be of further established that the property was possessed by her at the time the Act came into force. It was the case of the appellant that the estate of Veerappa was in actual possession of the second defendant and not Veeravva at the relevant time. On behalf of the rt respondent it was urged that the words "possessed by" had a wider meaning than actual physical possession, although physical possession may be included in the expression. In the case of Venkayamma v. Veerayya (S) AIR 1957 Andh-Pra 280; Viswanatha Sastri J, with whom Satyanarayana Raju J. agreed, expressed the opinion that "the word possessed" in S. 14 refers to possession on the date when the Act came into force. Of course, possession referred to in S. 14 need not be actual physical possession or personal occupation of the property by the Hindu female but may be possession in law. The possession of a licensee, lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purpose of S. 14. The word "possessed" is used in S. 14 in a broad sense and in the context possession means the state of owning or having in one's hands or power. It includes possession by receipt of rents and profits". The learned Judges expressed the view that even if a trespasser were in possession of the land belonging to a female owner, it might conceivably be regarded as being in possession of the female owner, provided the trespasser had not perfected his title. We do not think that it is necessary, in the present case to go to the extent to which the learned Judges went. It is sufficient to say that "possessed" in S. 14 is used in a broad sense and in the context means the state of owning or having in ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 15 one's hand or power. In the case of Gostha Behari v. Haridas Samanta, (S) AIR 1957 Cal 557 at p. 559, P. N. Mookherjee J, expressed his opinion as to the meaning of the words "any property .
possessed by a female Hindu" in the following words :-
"The opening words "property possessed by a female Hindu"
obviously mean that to come within the purview of the section the property must be in possession of the female concerned at the date of the commencement of the Act. They clearly contemplate the female's possession when the Act came into force. That possession might have been either actual or constructive or in any form of recognized by law, but unless the female Hindu, whose limited estate in the disputed, property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word "possession" in its rt widest connotation, when the Act came into force, the section would not apply."
In our opinion, the view expressed above is the correct view as to how the words "any property possessed by a female Hindu"
should be interpreted. In the present case if the adoption was invalid, the full owner of veerappa's estate was his widow Veeravva and even if it be assumed that the second defendant was in actual possession of the estate his possession was merely permissive and Veeravva must be regarded as being in constructive possession of it through the second defendant in this situation, at the time when the Act came into force, the property of Veerappa must be regarded in law as being possessed by Veeravva."
21. Their lordships of the Hon'ble Supreme Court in Mangal Singh and others v. Smt. Rattno (dead) by her legal representatives and another reported in AIR 1967 SC 1786, have held that expression "possession by a female Hindu" is intended to cover not only actual or constructive possession but also possession in law i.e. property owned by ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 16 Hindu female, even though she is not in actual possession.
Their lordships have held as under:
.
"6. Section 14 (l) of the Act is as follows:-
"14. (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 of 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 rt manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act."
The dispute in the case has arisen, because this section confers the right of full ownership on a Hindu female only in respect of property possessed by her, whether acquired before or after the commencement of the Act; and, in the present case, admittedly, the plaintiff had been dispossessed in the year 1954 and was not able to recover possession from the defendants- appellants until her death in the year 1958: It was urged on behalf of the appellants that, in order to attract the provisions of S. 14 (1) of the Act, it must be shown that the female Hindu was either in actual physical possession, or constructive possession of the disputed property. On the other side, it was urged that even if a female Hindu be in fact, out of actual possession, the property must be held to be possessed by her, if her ownership rights in that property still exist and, in exercise of those ownership rights, she is capable of obtaining actual possession of it. It appears to us that, on the language used In S. 14 (1) of the Act, the latter interpretation must be accepted.
[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 ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 17 apply this provision, the property must be such as is either in actual possession of the female 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 of 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 rt 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 ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 18 there 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 of 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 rt 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."
22. In the instant case, when the Act came into force, widow was in possession of the suit property after the death of her husband Sohju.
23. Their lordships of the Hon'ble Supreme Court in Bai Vajia (dead) by LRs vs. Thakorbhai Chelabhai and others reported in AIR 1979 SC 993, have explained the term 'limited ownership' as under:
"4. Mr. S. T. Desai, learned counsel for the plaintiffs-respondents, and Mr. U. R. Lalit who very ably assisted the Court at its request, contended that for a Hindu female to be given the benefit of sub- sec. (1) of sec. 14 of the Act she must first be an owner, albeit a limited owner, of the property in question and that Tulasamma not ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 19 being an owner at all, the Bench presided over by Bhagwati, J. did not reach a correct decision in folding that the sub-section aforesaid covered her case. We find that only that part of this .
argument which is interpretative of sub-sec. (1) is correct, namely, that it is only some kind of "limited ownership" that would get enlarged into full ownership and that where no ownership at all vested in the concerned Hindu female, no question of the applicability of the sub-section would arise. We may hers reproduce in extenso sec. 14 of the Act with advantage :
"14 (1) Any property possessed by a female Hindu, whether of 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 rt 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' immediately before the commencement of this Act.
"(2) Nothing contained in sub-sec. (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 prescribed a restricted estate in such property."
A plain reading of sub-sec. (1) makes it clear that the concerned Hindu female must have limited ownership in property which limited ownership would get enlarged by the operation of that sub-section. If it was intended to enlarge any sort of a right which could in no sense be described as ownership, the expression "and not as a limited owner" would not have been used at all and becomes redundant, which is against the well-recognised principle of interpretation of statutes that the Legislature does not employ meaningless language. Reference may also be made in this connection to Eramma v. Verrupanna, (1966) 2 SCR 626 : (AIR 1966 SC 1879) wherein Ramaswami J., speaking on behalf of himself, ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 20 Gajendragadkar, C. J., and Hidayatullah, J., interpreted the sub- section thus :
"The property possessed by a female Hindu, as contemplated .
in the section, is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act. It may be noticed that the Explanation to sec. 14(1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title, however restricted the nature of her interest may be. The words "as full owner thereof of and not as a limited owner" as given in the last portion of sub-sec.
(1) of sec. 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. In other words, sec. 14(1) of the Act contemplates that a rt Hindu female who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of this section. The object of the section is to extinguish the estate called 'limited estate' or 'widow's estate' in Hindu Law and to make a Hindu woman, who under the old law would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder..................................
It does not in any way confer a title on the female Hindu where she did not in fact possess any vestiges of title. It follows, therefore, that the section cannot be interpreted so as to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser. In other words, the provisions of sec. 14 (1) of the Act cannot be attracted in the case of a Hindu female who is in possession of the property of the last male holder on the date of the commencement of the Act when she is only a trespasser without any right to property".
This interpretation of sub-sec. (1) was cited with approval in Manga Singh v. Rattno (1967) 3 SCR 454 : (AIR 1967 SC 1786) by Bhargava, J., who delivered the judgment of the Court and observed :
::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 21"This case also, thus, clarifies that the expression "possessed by" is not intended to apply to a case of mere possession without title, and that the legislature intended this provision for cases .
where the Hindu female possesses the right of ownership of the property in question. Even mere physical possession of the property without the right of ownership will not attract the provisions of this section. This case also, thus, supports our view that the expression "possessed by" was used in the sense of connoting State of ownership and, while the Hindu female possesses the rights of ownership she would become full owner if the other conditions of mentioned in the section are fulfilled. The section will, however, not apply at all to cases where the Hindu female may have parted with her rights so as to place herself in a position where she could, in no manner, exercise her rights of ownership in that property any rt longer".
[12] Limited ownership in the concerned Hindu female is thus a sine qua non for the applicability of sub-sec. () of sec. 14 of the Act but then this condition was fully satisfied in the case of Tulasamma to whom the property was made over in lieu of maintenance with full rights of enjoyment thereof minus the power of alienation. These are precisely the incidents of limited ownership. In such a case the Hindu female represents the estate completely and the reversioners of her husband have only a spes successions, i.e. a mere chance of succession, which is not a vested interest and a transfer of which is a nullity. The widow is competent to protect the property from all kinds of trespass and to sue and be sued for all purposes in relation thereto so long as she is alive. Ownership in the fullest sense is a sum-total of all the rights which may possibly flow from title to property, while limited ownership in its very nature must be a bundle of rights constituting in their totality not full ownership but something less. When a widow holds the property for her enjoyment as long as she lives, nobody is entitled to deprive her of it or to deal with the property in any manner to her detriment. The property is for the time being beneficially vested in her and she has the occupation, control and usufruct of it to the exclusion of all others. Such a relationship to property in our opinion falls squarely within the meaning of the ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 22 expression "limited owner" as used in sub-sec. (1) of sec. 14 of the Act. In this view of the matter the argument that the said sub- section did not apply to Tulasamma 's case (AIR 1977 SC 1944) .
(supra) for the reason that she did not fulfil the condition precedent of being a limited owner is repelled..
[13] The next contention raised by Mr. Desai and Mr. Laiit also challenged the correctness of the decision in Tulasamma's case. They argued that in any case the only right which Tulasamma had prior to the compromise dated July 30,1949 was a right to maintenance simpliciter and not of at all a right to or in property. For the reasons which weighed with Bhagwati and Fazal Ali, JJ., in rejecting this argument we find no substance in it as we are in full agreement with those reasons and the same may not be rt reiterated here. However we may emphasize one aspect of the matter which flows from a scrutiny of sub-sec. (1) of sec.
14 of the Act and the Explanation appended thereto. For the applicability of sub-sec. (1) two conditions must co-exist, namely :
(1) the concerned female Hindu must be possessed of property, and (2) such property must be possessed by her as a limited owner.
[14] If these two conditions are fulfilled, the sub- section gives her the right to hold the property as a full owner irrespective of the fact whether she acquired it before or after the commencement of this Act.
[15] The Explanation declares that the property mentioned in sub-sec. (1) includes both movable and immovable property and then proceeds to enumerate the modes of acquisition of various kinds of property which the sub-section would embrace. Such modes of acquisition are :
(a) by inheritance,
(b) by devise,
(c) at a partition,
(d) in lieu of maintenance or arrears of maintenance, ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 23
(e) by gift from any person, whether a relative or not, before, at or after her marriage,
(f) by her own skill or exertion.
.
(g) by purchase, (h) by prescription,
(i) in any other manner whatsoever, and
(j) any such property held by her as "Stridhana"
immediately before the com mencement of this Act.
[16] A reference to the Hindu law as it prevailed immediately of before the commencement of the Act would lead one to the conclusion that the object of the Explanation was to make it clear beyond doubt that all kinds of property which fell within the ambit of the term ' 'Stridhana" would be held by the owner thereof as full rt owner and not as a limited owner. Reference may in this connection be made to the following enumeration of "Stridhana" in para. 125 of Mulla's Hindu Law :
(1) Gifts and bequests from relations.
(2) Gifts and bequests from strangers.
(3) Property obtained on partition.
(4) Property given in lieu of maintenance.
(5) Property acquired by inheritance.
(6) Property acquired by mechanical arts.
(7) Property obtained by compromise.
(8) Property acquired by adverse possession. (9) Property purchased with Stridhana, or with savings of income of Stridhana.
(10) Property acquired from source other than those mentioned above. These heads of property are then dealt with at length by Mulla in paras, 126 to 135 of his treatise. Prior to the commencement of the Act, the Hindu female did not enjoy full ownership in respect of all kinds of "Stridhana" and her powers to deal with it further varied from school to school. There was a sharp differed; in this behalf between Mitakshara and Dayabhaga. And then the Bombay, Benares, Madras and Mithila schools also differed from each other on the point. Succession to different kinds of "Stridhana" did not follow a uniform pattern. The rights of the Hindu female over "Stridhana" varied according to her status as a ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 24 maiden, a married woman and a widow. The source and nature of the property acquired also placed limitations on her ownership and made a difference to the mode of succession thereto. A comparison .
of the contents of the Explanation with those of para. 125 of Mulla's Hindu Law would show that (he two are practically identical. It follows that the Legislature in its wisdom took pains to enumerate specifically all kinds of "Stridhana" in the Explanation and declared that the same would forrd "property" Within the meaning of that word as used in sub-sec. (1). This was done, in the words of Bhagwati, J., "to achieve a social purpose by bringing about change of in the social and economic position of women in Hindu Society". It was a step in the direction of practical recognition of equality of the sexes and was meant to elevate women from a subservient position in the economic field to a pedestal where they could exercise full rt powers of enjoyment and disposal of the property held by them as owners, untrammelled by artificial limitations placed on their right of ownership by a society in which the will of the dominant male prevailed to bring about a subjugation of the opposite sex. It was also a step calculated to ensure uniformity in the law relating to the nature of ownership of 'Stri-dhana'. This dual purpose underlying the Explanation must be borne in mind and given effect to when the section is subjected to analysis and interpretation, and sub-sec. (2) is not to be given a meaning which would defeat that purpose and negative the legislative intent, if the language used so warrants. A combined reading of the two sub-sections and the Explanation leaves no doubt in our minds that sub-sec. (2) does not operate to take property acquired by a Hindu female ii lieu of maintenance or arrears of maintenance (which is property specifically included in the enumeration contained in the Explanation) out of the purview of sub-sec.(1).
24. Their lordships of the Hon'ble Supreme Court in Bishwanath v. Badami Kaur reported in AIR 1980 SC 1329, have held that widow of the last proprietor of land in dispute was recorded as such and at that time neither the U.P. Act ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 25 was passed nor Succession Act came into force and, as such, after passing of both the Acts, the widow would become .
absolute owner of the property and the interest of collaterals ceased to exist. Their lordships have held as under:
"1..............It was pleaded by the reversioners that the mutation was only by way of consolation without any rights in the properties which were to go to her collaterals; namely the respondents. This of statement was made at a time when neither the U. P. Zamindari Abolition and Land Reforms Act was passed nor the Hindu Succession Act came into force. At the time when the matter was decided by the Deputy Director of Consolidation both the Acts had rt been passed which conferred absolute proprietary rights on Smt. Badami Kaur who is still alive. Once Smt. Badami Kaur became an absolute owner of the property, the respondents' interest as collaterals ceased to exist and they had therefore no locus standi to challenge the status of Smt. Badami Kaur. The Deputy Director of Consolidation therefore proceeded on a totally erroneous view of law in holding that Smt. Badami Kaur had merely a life interest and the property should go to the respondents who were the collaterals.........."
25. Their lordships of the Hon'ble Supreme Court in Vijay Pal Singh v. Deputy Director of Consolidation and others reported in AIR 1996 SC 146, have held that where it was established that husband of the widow was separated from his brothers and was in possession of his share of property and after his death, his widow's name was mutated and continued in the record of rights, her limited estate would be enlarged into absolute right by operation of Section ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 26 14 (1) of Hindu Succession Act as she was in possession when the Act came into force and when she died intestate, .
her only daughter would become as absolute owner as class I heir and would be entitled to the extent of share of property which her father held. Their lordships have further held that widow's tenancy rights would be enlarged into ownership of rights and Section 4 (2) of Hindu Succession Act was not applicable to deny her absolute right. Their lordships have rt held as under:
"4. The question is whether Smt. Champi, daughter of Shiv Devi, has 1/3rd share in the properties left by the father Bhanwar Singh. it would appear from the record that after the demise of Devia the names of three sons were mutated in the revenue record and the finding of the Settlement Officer is that, though they were in separate possession and enjoyment of the properties in their respective share, since there was no partition by metes and bounds, Shiv Devi did not acquire any right. It is not in dispute that Shiv Devi's name continued in the revenue record to the extent of 1/3rd share held by Bhanwar Singh. This fact establishes that prior to 1910 Bhanwar Singh obviously separated from his brothers and was in possession of his 1/3rd share to which he was entitled.
Obviously, by family arrangement between the brothers, on demise of their father Devia, it was mutated and on demise of her husband, Shiv Devi's name was mutated. Even assuming that the contention of the respondents should be accepted, she remained in possession towards her maintenance, by operation of Section 11 of the U. P. Zamindari and Land Reforms Act, 1950, which recognises the right of Shiv Devi as window of Bhanwar Singh. Section 11 is in recognition of the per-existing personal law.
[5] It is settled law that widow is entitled only to limited estate for maintenance. By operation of sub-section (1) of Section ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 27 14 of the Hindu Succession Act, her limited estate enlarged into absolute right as she was in possession when the Act came into force. Thereby she becomes the absolute owner of the property.
.
When she died intestate, her daughter Champi became absolute owner as Class-I heir, since she was in possession and enjoyment of the land in her own right. The entries in the revenue record corroborate the same. Thereby she became the absolute owner."
26. Mutation was attested in favour of Poshi on of 14.2.1956 vide mutation No. 2190. The mutation was sanctioned in favour of legal heirs of Poshi, namely, Puran rt Dass, Shilu, Fuli and Lumbi on 10.6.1971 vide mutation No. 2224. Poshi has succeeded to the property before her marriage with Lathu even as per the statement of PW-3 Dharam Dass. He has also admitted that Sami used to live separately from Maju during his life time and the land was divided in the year 1956 by Maju between Sami and Poshi.
Maju had partitioned the land during his life time. In all the revenue records, Poshi has been shown in possession of suit property and after her death; entries were changed in the name of her legal heirs. These entries have remained unchallenged and no steps were ever taken by the plaintiffs to get the revenue entries corrected.
27. Case of the plaintiff was also that Poshi married Lathu in the year 1958. However, by that time, she had ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP 28 succeeded to the property of her husband Sohju. In the Jamabandi Ext. PB for the year 1960-61, Ext. PC for the year .
1964-65, Ext. PD and PE for the years 1975-76, suit land has been shown in possession of defendant Nos. 1 to 4 and other co-sharers. Poshi has died in the year 1971 and the present suit has been filed after a lapse of 25 years after the of attestation of mutation. Thus, it cannot be said that the suit was filed within the period of limitation.
28. rt All the substantial questions of law are answered accordingly.
29. In view of the analysis and discussion made hereinabove, there is no merit in the present appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.
(Justice Rajiv Sharma), Judge.
8.9.2015 *awasthi* ::: Downloaded on - 15/04/2017 18:53:22 :::HCHP