Delhi District Court
Baljit Kaur vs Ajit Singh on 28 November, 2023
IN THE COURT OF MR. SATYABRATA PANDA, ADJ-04,
PATIALA HOUSE COURTS, NEW DELHI
CS No. 59017 of 2016
Date of Institution : 28.09.2000
Final arguments heard : 19.08.2023
Date of Judgment : 28.11.2023
Smt. Baljit Kaur (since deceased),
Resident of House No. 1119, Sector-8C
Chandigarh, through her legal representatives:
1. Balbir Singh Wasu (husband) (since deceased),
Resident of House No. 1119, Sector-8C
Chandigarh
2. Ishwinder Kaur Swarn (daughter),
Resident of E-02, Uppals Marble Arch
Pockets 2 & 3, Manimajra, Chandigarh, U.T.
3. Jasdeep Singh Wasu (son),
Resident of House NO. 1119,
Sector-8-C, Chandigarh
.....Plaintiffs
Versus
1. Ajit Singh, S/o late Sh. Sardar Joginder Singh
R/o A-17, Hill View Apartments,
Vasant Vihar, New Delhi
2. Smt. Harish Kaur, W/o Sh. S.S. Bedi
R/o D-1/119, Janakpuri, New Delhi
3. Aarone Developers Pvt. Ltd.
(earlier M/s. Vidhi Constructions Pvt. Ltd.)
Through its director, Sh. Homender Arora
having its registered office at E-335,
East Kailash, New Delhi
.....Defendants
CS No. 59017 of 2016
Baljit Kaur Vs. Ajit Singh Page No. 1 of 78
JUDGMENT
1. The plaintiff Smt. Baljit Kaur has filed the present suit seeking decree of partition claiming one third share in the suit property. The case of the plaintiff as pleaded in the plaint is as follows:
1.1. The plaintiff Smt. Baljit Kaur and the defendant no.2 Smt. Harish Kaur are the daughters and the defendant no.1 Sh. Ajit Singh is the son of late Sardar Joginder Singh and late Smt. Harjit Kaur.
Late Sardar Joginder Singh was the owner of the suit property namely D-6/4, Vasant Vihar, New Delhi measuring 400 sq. yards which was a single storied residential house and the self-acquired property of late Sardar Joginder Singh. Late Sardar Joginder Singh expired on 08/06/1987 leaving behind his wife Smt. Harjit Kaur and his children who are parties to the present suit as legal heirs.
1.2. Late Sardar Joginder Singh during his lifetime had executed a registered will dated 14/06/1983 whereby a life estate in the suit property was given to his wife Smt. Harjit Kaur in lieu of her pre-existing right of maintenance and residence, and it was provided that after her demise, the property shall vest in and be taken absolutely by the son defendant no.1.
CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 2 of 781.3. Despite only a life estate having been given under the will, upon the death of Late Sardar Joginder Singh, his wife Smt. Harjit Kaur who was residing in the suit property became absolute owner thereof by virtue of section 14(1) of the Hindu Succession Act, 1956 and continued to reside in the suit property till her death on 24/08/1994. Smt. Harjit Kaur died intestate.
1.4. The will dated 14/06/1983 was never disclosed to the plaintiff by the defendant no.1 despite being specifically asked and the plaintiff Smt. Baljit Kaur continued to be in the dark in regard to the will. Since the plaintiff was married and was residing at her matrimonial home at Chandigarh, the defendant no.1 continued to occupy the suit premises on behalf of all the co-owners. But the plaintiff visited Delhi regularly and whenever she came to Delhi, she resided in the suit property by virtue of being one of the co-owners thereof. The fact of the will dated 14/06/1983 came to light only when the plaintiff and her family members visited the suit property on 05/09/2000 but were shocked to see that the suit property was being demolished to be rebuilt. It seemed that the defendant no.1 had entered into an agreement with some contractors/builders in respect of the suit property. In this situation, the plaintiff immediately contacted the defendant no.1 and protested and questioned him with regard to his CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 3 of 78 action of demolishing the suit property and trying to rebuild the property and sell it to third parties without her consent or giving her due share. The defendant no.1, however, flatly refused to recognise the plaintiff as a co-owner of the property and claimed to be the sole owner of the property in question on the basis of the will of Late Sardar Joginder Singh dated 14/06/1983 which was disclosed to the plaintiff for the first time and further refused to recognise or give any share to the plaintiff in respect of the suit property. The defendant no.1 played a fraud on the plaintiff by concealing from her, the will dated 14/06/1983. However, even by virtue of the will dated 14/06/1983, the full ownership rights could not be conferred on the defendant no.1 alone after the demise of the mother Smt. Harjit Kaur on 24/08/1994 but the same would be conferred on all the three children i.e. the plaintiff and the defendant no.1 and 2 in equal shares. The defendant no.1 further did not deny that he had entered into an agreement with a builder and was making flats in the suit property and would thereafter sell the same to third parties for commercial gain.
1.5. As per the provisions of section 14(1) of the Hindu Succession Act, Smt. Harjit Kaur became and was full and absolute owner of the suit property and therefore, after her demise intestate, the suit CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 4 of 78 property devolved on her Class I heirs in equal share i.e. the plaintiff and the defendants nos. 1 and 2 in the suit.
1.6. On this basis, the plaintiff has filed the present suit seeking partition of the suit property claiming one third share.
2. The defendants no. 1 and 2 have jointly filed the written statement and have sought dismissal of the suit. The case of the defendants no.1 and 2 as stated in the amended written statement is as follows:
2.1. By virtue of the registered will dated 14/06/1983, Smt. Harjit Kaur was enjoying only a restricted/limited estate in the capacity of a life estate in terms of section 14(2) of the Hindu Succession Act, 1956 and that at the time of her death Smt. Harjit Kaur was not the absolute owner of the suit property as claimed by the plaintiff in the suit. The provisions of section 14(1) of the Hindu Succession Act were not applicable in the facts of the present case and it was section 14(2) which applied in the facts of the present case.
2.2. The plaintiff along with the defendant no. 2 was very much aware of the registered will dated 14/06/1983 left behind by the father of the parties.
On his death on 08/06/1987, immediately since CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 5 of 78 thereafter or after his death, the plaintiff never raised any objection with regard to the nature of the estate acquired by the widow late Smt. Harjit Kaur and enjoyed by her during her lifetime till her death. In fact, late Sardar Joginder Singh had prior to the execution of the will in question discussed the same with his family and his three children who are parties to the suit. He had specifically informed his intentions and desire that he intended to give the suit property to the defendant no.1 since both of his daughters i.e. the plaintiff and the defendant no. 2 had already got married and were living happily in their matrimonial home. It was the desire and wish of the late father of the parties that the suit property should go to the defendant no.1 without the plaintiff or the defendant no.2 having any rights in the same. Both the daughters of the late father were aware of the intentions of late Sardar Joginder Singh. Furthermore, even during the lifetime of the late father, no objection of any nature whatsoever was raised by the plaintiff at any point of time in the past. The whole story as cooked up in the suit was false, frivolous and vexatious. The plaintiff was very much aware and the will of the late father was well within her knowledge and therefore, she is now even estopped by her conduct from filing and maintaining the present suit.
2.3. The suit was barred by limitation. As per the own CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 6 of 78 contention of the plaintiff in her plaint, the cause of action had first arisen upon the death of Smt. Harjit Kaur on 24/08/1994 and hence the suit for partition ought to have been filed within 3 years from the death of the mother.
2.4. It is denied that the restricted/limited rights to Smt. Harjit Kaur were given under the will in lieu of any alleged existing right of maintenance and residence. There was no pre-existing right in favour of Smt. Harjit Kaur in lieu of which the limited right to enjoy the property could be given by Late Sardar Joginder Singh to her. The suit property was the self-acquired property of the late father during his lifetime and therefore the question of any right of maintenance or residence in favour of the wife did not arise.
2.5. It is denied that late Smt. Harjit Kaur had any right to maintenance against the property left behind by late Sd. Joginder Singh. Late Sd. Joginder Singh had retired as Under-Secretary from the Government of India. After retirement, he was getting monthly pension. After his death, the deceased mother of the parties became entitled to get the family pension and she was receiving monthly pension of Rs. 900/-, which was sufficient for her maintenance. She was also the owner of her self-acquired property and house bearing No. J-6, Rajouri Garden, New Delhi.
CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 7 of 78This house was available with her for her residence even during the lifetime of her husband and even thereafter during her lifetime. She had permitted her elder son Sardar Sudershan Singh (who had been given in adoption) for living in the house since there was some matrimonial dispute. This house was constructed on land admeasuring 160 sq. yds. and was a complete four bed room unit. This residence was available with the late mother but she never occupied the same. Further, on the death of her husband, the mother also had cash in the shape of FDRs and bank deposits amounting to about Rs. 2.50 lacs. She was having regular interest income which was about Rs. 1,500/- per month, which was utilised by her for her peaceful living. In view of these facts, the allegation of the plaintiff that late Smt. Harjit Kaur was having any right of maintenance against the suit property or that the limited right in the suit property was given in lieu of any alleged right of maintenance was false.
2.6. On this basis, the defendants nos. 1 and 2 have sought the dismissal of the suit.
3. The plaintiff has filed replication to the written statement of the defendants nos. 1 and 2.
4. During the course of the suit, the defendant no.3 M/s.
Vidhi Constructions Pvt. Ltd. was impleaded as a CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 8 of 78 defendant. The defendant no.3 has also filed its written statement and has sought the dismissal of the suit. The case of the defendant no.3 in its written statement is as follows. The defendant no.3 was a bona fide purchaser of the suit property without notice and for valuable consideration. On the basis of the will dated 16/04/1983 of late Sardar Joginder Singh coupled with the mutation letter dated 15/09/1995 as well as the fact that the defendant no.1 was in actual physical possession of the suit property and was in a position to deliver possession as also the fact that there was no objection from the sisters of the defendant no.1, the defendant no.3 for valuable consideration entered into a collaboration agreement with the defendant no.1. The defendant no.3 had paid a sum of Rs. 85 lacs to the defendant no.1 out of the total consideration of Rs. 1.28 crores. After the development of the suit property by the defendant no.3, the entire basement floor and ground floor had fallen to the share of the defendant no.1. The defendant no.3 had acted bona fide, in good faith and after fully verifying the title of the defendant no.1.
5. During the course of the suit, vide order dated 30/03/2001, an injunction was granted in respect of the basement and ground floor and other portions of the constructed building which as per the collaboration agreement had fallen to the share of the defendant no.1.
6. Vide order dated 20/02/2004, the following issues were framed in the suit:
CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 9 of 78"1. Whether the suit is barred by law of limitation as alleged in the written statement by the defendant No.3? OPD3
2. Whether the mother of the plaintiff Smt. Harjit Kaur became the full owner of the suit property on the basis of Will dated 14/06/1983 executed by her husband Shri Joginder Singh? If so, to what relief the plaintiff is entitled to? OPP
3. Whether Late Smt. Harjit Kaur was allowed to enjoy the suit property only during her lifetime by creation of a life estate in lieu for claim for maintenance or not? If so, it's effect. OPD1
4. Whether the defendant No.3 entered into the collaboration agreement dated 05/04/2000 without notice and for valuable consideration and bona fide? If so, its effect. OPD3
5. Relief."
7. Vide order dated 27/01/2010, an additional issue was framed as under:
"Whether late Shri Joginder Singh executed last will and testament dated 14/06/1983? If so, to what effect? OPD-1"
8. In support of their case, both the sides have led their respective evidence, both oral and documentary.
9. The plaintiff herself did not enter the witness box. In support of her case, the plaintiff examined her husband Sh. Balbir Singh Wasu as PW-1. PW-1 is the holder of special CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 10 of 78 power of attorney executed by the plaintiff. He has deposed that the plaintiff had appointed PW-1 as her special attorney vide power of attorney dated 03/05/2006 Ex.P-1 to depose on her behalf. PW-1 has tendered his affidavit in evidence as Ex.PW-1/A in which he has deposed along the lines of the averments made in the plaint. He was cross-examined by the defendants.
10. The defendants have also led their evidence. The defendant no.1 has examined himself as DW-1 and has tendered his affidavit in evidence as Ex.DW-1/A in which he has deposed along the lines of the averments made in the written statement. The defendant no.1 as DW-1 was cross- examined by the plaintiff.
11. The defendants have also examined Sh. Jasbinder Singh Pruthi as DW-1/4. He is the attesting witness to the will dated 14/06/1983 of the late father and he has tendered his affidavit in evidence as Ex.D1W4/A. He has deposed regarding the due execution of the will by the late father of the parties in his presence. He was cross-examined by the plaintiff.
12. The defendants had also summoned an official from the Syndicate Bank, Vasant Vihar Branch for producing the record pertaining to the bank account of the late mother in the bank. An official from the bank being Sr. Manager, Syndicate Bank had appeared as DW-2 on 07/02/2014 and he has deposed that the record which was requisitioned CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 11 of 78 from the bank was not available with the bank as the bank kept records only for the last 10 years and hence the summoned record was not available, and that any record prior to the period of 10 years was destroyed by the bank. He produced a letter dated 05/02/2014 Ex.DW-2/1 being a letter by the bank addressed to the Court stating that no record pertaining to the personal account of Smt. Harjit Kaur was available as on date.
13. The defendants had also summoned an official from the State Bank of India, Vasant Vihar Branch for producing the record pertaining to the bank account of the late mother in the bank. An official from the bank being Asstt. Manager, State Bank of India had appeared as DW-3 on 07/02/2014 and he has deposed that the record which was requisitioned from the bank was not available with the bank as the same was destroyed in terms of the register Ex.DW-3/1 maintained by the bank.
14. The defendants have also examined as D2W1 Sh.
Mohinder Pal Singh Bedi, who is the son of the defendant no.2 Smt. Harish Kaur (Bedi). He has tendered his affidavit in evidence as Ex.D2W1/A. He was cross- examined by the plaintiff.
15. The defendants have also examined Sh. Nimish Arora, who is director in the defendant no.3 (he is also numbered as DW-3). He has deposed along the lines of the written statement of the defendant no.3. He was cross-examined CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 12 of 78 by the plaintiff.
16. It may be mentioned that after the recording of the plaintiff's evidence and during the course of recording of the defendants' evidence, sometime in 2016, the original plaintiff expired and her legal representatives were impleaded as plaintiffs in the suit.
17. Both the sides have made their respective arguments and have also filed written submissions. The submissions on behalf of the LRs of the plaintiff were made by Mr. Jasdeep Singh Wasu, LR of the plaintiff.
18. I have considered the submissions made by the LRs of the plaintiff and the learned counsels for the defendants, and I have perused the record including the pleadings, evidence (both oral and documentary) and the written submissions.
19. My issue -wise findings are as follows.
Additional Issue: Whether late Shri Joginder Singh executed last will and testament dated 14/06/1983? If so, to what effect? OPD-1
20. A perusal of the pleadings of the parties in the suit reveals that there is no dispute that Late Sh. Joginder Singh had executed his last will dated 14/06/1983 Ex.P-1. In fact, the claims of both the plaintiff as well as the defendants to the suit property are premised on the said will dated 14/06/1983 Ex.P-1. It is the case of the plaintiff that in the CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 13 of 78 will dated 14/06/1983, although only a limited life estate had been granted by Late Sh. Joginder Singh to his wife Smt. Harjit Kaur, however, the limited estate blossomed into an absolute estate in light of section 14(1) of the Hindu Succession Act, 1956. On the other hand, it is the position of the defendants that the life estate bestowed upon Smt. Harjit Kaur remained a life estate in view of section 14(2) of the Act. Thus, there is no dispute between the parties as to the execution of the will dated 14/06/1983 Ex.P-1 and in fact both parties are relying upon the said will dated 14/06/1983 to advance their respective claims. In any case, the defendant no.1 has examined DW-4 Sh. Jasbinder Singh Pruthi who is the attesting witness to the will and through his testimony the due execution of the will Ex.P-1 has been proved. Accordingly, it is held that the execution of the will dated 14/06/1983 of Late Sh. Joginder Singh as the last will is proved. The Issue No.1 is answered accordingly.
Issue 2. Whether the mother of the plaintiff Smt. Harjit Kaur became the full owner of the suit property on the basis of Will dated 14/06/1983 executed by her husband Shri Joginder Singh? If so, to what relief the plaintiff is entitled to? OPP Issue 3. Whether Late Smt. Harjit Kaur was allowed to enjoy the suit property only during her lifetime by creation of a life estate in lieu for claim for maintenance or not? If so, it's effect. OPD1
21. Both the aforesaid issues are based on the application of CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 14 of 78 section 14 of the Hindu Succession Act (hereinafter referred to as the HSA). The question is whether it is section 14(1) which applies as claimed by the plaintiff or section 14(2) which applies as claimed by the defendants.
22. Mr. Wasu, LR of the plaintiff has referred to the relevant pleadings and evidence in support of the plaintiff, and has submitted that the present case was covered under section 14(1) of the HSA. He has made the following submissions:
22.1. The mother of the plaintiff i.e. Smt. Harjit Kaur had a pre-existing right in the suit property for her maintenance and residence.
22.2. The limited life estate which was given to late Smt. Harjit Kaur under the will dated 14/06/1983 executed by late Sardar Joginder Singh was in lieu of her pre-existing right of maintenance and residence.
22.3. Thus, under section 14(1) of the Hindu Succession Act, 1956, the limited interest granted to Smt. Harjit Kaur under the will in lieu of maintenance blossomed into absolute property.
22.4. The defendants nos. 1 and 2 had failed to prove that Smt. Harjit Kaur had an alternative house.
22.5. The defendants nos. 1 and 2 had failed to prove CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 15 of 78 availability of funds/amounts or pension to support their argument that Smt. Harjit Kaur was well off.
22.6. From a reading of paragraph 6 of the will dated 14/06/1983, it is clear that the testator was concerned about the future of his wife as he does not say a word about any alternative property, which is a dilapidated 160 sq. yards house in Rajouri Garden, New Delhi, which was given to his elder son by way of family arrangement. The testator knew that his wife did not have a roof over her head except the house where she was residing in Vasant Vihar, New Delhi, one of the poshest localities of South Delhi till her death. The testator knew that his wife being a housewife had no source of income and could not survive without the house being given to her. In this backdrop, the testator devised and bequeathed the suit property for her residence and utilisation, which enlarged into full ownership by operation of section 14(1) of the Hindu Succession Act.
23. In support of their case that the mother had become absolute owner under section 14(1) of the HSA, the LRs of the plaintiff have placed reliance upon the following decisions of the Hon'ble Supreme Court:
1) Badri Pershad Vs. Kansho Devi AIR 1970 SC 1963;
2) V. Tulasamma Vs. Shesha Reddi AIR 1977 SC 1944;CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 16 of 78
3) Bai Vajia Vs. Thakorbhai Chelabhai AIR 1979 SC 993;
4) Jagannathan Vs. Kunjithapadam Pillai AIR 1987 SC 1493;
5) Gulwant Kaur Vs. Mohinder Singh AIR 1987 SC 2251;
6) Jaswant Kaur Vs. Major Harpal Singh (1989) 3 SCC 572;
7) Thota Sesharathamma Vs. Thota Manikyamma (1991) 4 SCC 312;
8) Mangat Mal Vs. Punni Devi AIR 1996 SC 172;
9) C. Masilamani Mudaliar Vs. Idol (1996) 8 SCC 525;
10) Nazar Singh Vs. Jagjit Kaur (1996) 1 SCC 35;
11) Ram Kali Vs. Choudhri Ajit Shankar (1997) 9 SCC 613;
12) Raghubar Singh Vs. Gulab Singh (1998) 6 SCC 314;
13) Beni Bai Vs. Raghubir Prasad (1999) 3 SCC 234;
14) Santhosh Vs. Saraswathbai AIR 2008 SC 500;
15) Jupudy Pardha Sarathy Vs. Pentapati Rama Krishna (2016) 2 SCC 56;
16) Shyam Narayan Singh Vs. Rama Kant Singh 2017 SCC Online SC 1985;
17) Munni Devi Alias Nathi Devi Vs. Rajendra Alias Lallu 2022 SCC Online Sc 643.
24. On the other hand, the learned counsels for the defendants have referred to the relevant pleadings and evidence in support of the defendants, and have submitted that the case CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 17 of 78 is governed under section 14(2) of the Hindu Succession Act and not under section 14(1), and that hence, the limited life estate given to Smt. Harjit Kaur remained limited under section 14(2) of the Hindu Succession Act and did not become absolute.
25. In support of their submission that the case is governed under section 14(2) of the HSA, the learned counsels for the defendants have relied upon the following decisions of the Hon'ble Supreme Court:
1) Mst. Karmi Vs. Amru 1972 (4) SCC 86;
2) Sharad Subramanyan Vs. Soumi Mazumdar AIR 2006 SC 1993;
3) Sadhu Singh Vs. Gurudwara Sahib Narike AIR 2006 SC 3282;
4) Shyam Lal Kanti Guha Vs. Meena Bose AIR 2009 SC 1194;
5) Gaddam Ram Krishan Reddy Vs. Gaddam Rami Reddy 2010 (9) Scale 402;
6) Shivdev Kaur Vs. R.S. Grewal AIR 2013 SC 1620;
7) Ranvir Dewan Vs. Rashmi Khanna (2018) 12 SCC 1;
8) Jogi Ram Vs. Suresh Kumar (2022) 4 SCC 274.
26. The learned counsels for the defendants have also relied upon the following decisions of the Hon'ble High Court of Delhi:
CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 18 of 781) Sushma Thadani Vs. Yatish Kumar Satija 2007 (96) DRJ 199;
2) Ranvir Dewan Vs. Rashmi Khanna 2013 (139) DRJ 353;
3) Pritam Dewan Vs. Rashmi Khanna Manu/De/1636/2016;
4) Brig. (Retd.) Shyam Prasada Vs. Dayavati 2021 SCC Online Del 237;
5) Mahima v. DDA, CS (OS) No.1771/2012 decided on 18/07/2014.
27. In rejoinder, the LRs of the plaintiff have made the following submissions:
27.1. That the right of residence given to Smt. Harjit Kaur under the will was in lieu of pre-existing right of maintenance. In this regard, reliance is placed upon Mangat Mal (supra).
27.2. That there was no necessity for the Hindu female to be in possession of property on the date of coming into force of the Hindu Succession Act, 1956. In this regard, reliance is placed upon Nazar Singh (supra), Jagannathan (supra), Thota Sesharathamma (supra), Shyam Narayan Singh (supra), and Munni Devi (supra).
27.3. That the decision in Sadhu Singh (supra) which is relied upon by the defendants was per incuriam as it was contrary to the earlier decisions of the Hon'ble Supreme Court which have been cited by the CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 19 of 78 plaintiff. It is submitted that decisions of larger benches and coordinate benches would prevail over any subsequent inconsistent judgment which would be considered per incuriam. In this regard, reliance is place upon Sandeep Kumar Bafna Vs. State of Maharashtra AIR 2014 SC 1745 and Union of India Vs. S.K. Kapoor 2011 (2) SCT 609.
Findings
28. The crux of the matter is whether the case is governed by sub-section (1) or sub-section (2) of section 14 of the Hindu Succession Act. This section reads as under:
"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 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-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 CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 20 of 78 terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
29. Both the sides have relied upon catena of decisions of the Hon'ble Supreme Court on the application of section 14 of the HSA. In all these cases relied upon by both the sides, the common issue involved was on the applicability of section 14(1) or section 14(2) of the HSA, i.e. whether the concerned woman had become absolute owner in view of section 14(1) of the HSA or whether the concerned woman had only a limited interest in view of section 14(2) of the HSA.
30. I have considered all the decisions relied upon by the parties. It is pertinent that each case was decided by the Hon'ble Supreme Court on its own facts and on the interpretation of the particular instrument involved. In this context, it would be pertinent to quote from the decision of the Hon'ble Supreme Court in Badri Pershad (supra), wherein it was held in respect of section 14 of the HSA that:
"The section has to be read as a whole and it would depend on the facts of each case whether the same is covered by the first sub-section or sub-section (2)."
(Emphasis supplied by me)
31. In the decisions relied upon by the LRs of the plaintiff, the Hon'ble Supreme Court on the facts of the case and interpretation of the concerned instrument held that it was CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 21 of 78 section 14(1) which applied and not section 14(2) and hence, the lady had become the absolute owner of the subject property. On the other hand, in the decisions relied upon by the defendants, the Hon'ble Supreme Court on the facts of the case and interpretation of the concerned instrument held that it was section 14(2) which applied and not section 14(1) and hence, the lady only had a limited interest in the subject property.
32. Thus, it would depend on the facts of each case whether the case is covered under section 14(1) or section 14(2) of the HSA.
33. It would be appropriate to refer to the decisions of the Hon'ble Supreme Court in Badri Pershad (supra) and V. Tulasamma (supra). These cases were rendered by three- judge benches of the Hon'ble Supreme Court and are earliest in the line of judgments on the issue of applicability of section 14(1) and section 14(2) of the HSA, and have been consistently followed in the later judgments.
34. In Badri Pershad (supra), the Hon'ble Supreme Court held that section 14(2) was in the nature of a proviso or exception to section 14(1), and that section 14(2) would come into operation only if the acquisition in any of the methods indicated therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of the property. It would be CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 22 of 78 appropriate to extract the relevant portion of the judgment as under:
"7. Sub-section (2) of Section 14, is more in the nature of a proviso or an exception to sub-section (1). It can come into operation only if acquisition in any of the methods indicated therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of the property. ... ... ..." (Emphasis supplied by me)
35. Badri Pershad (supra) was followed by the Hon'ble Supreme Court in V. Tulasamma (supra), which is a landmark judgment on the application of section 14 of HSA. The relevant portion of the judgment in V. Tulasamma (supra) summarising the position as to application of sections 14(1) and 14(2) of the HSA is extracted hereunder:
"61. We would now like to summarise the legal conclusions which we have reached after an exhaustive considerations of the authorities mentioned above on the question of law involved in this appeal as to the interpretation of Sections 14(1) and (2) of the Act of 1956. These conclusions may be stated thus:
"(1) The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu law and has been strongly CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 23 of 78 stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights.
(2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-
economic ends sought to be achieved by this long needed legislation.
(3) Sub-section (2) of Section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of Section 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by Section 14(1) or in a way so as to become totally inconsistent with the main provision.
(4) Sub-section (2) of Section 14 applies to instruments, decrees, awards, gifts, etc. which create independent and new titles in favour of CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 24 of 78 the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-existing rights. In such cases a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the female's limited interest would automatically be enlarged into an absolute one by force of Section 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-section (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee.
(5) The use of express terms like 'property acquired by a female Hindu at a partition', 'or in lieu of maintenance', 'or arrears of maintenance', etc. in the Explanation to Section 14(1) clearly makes sub-section (2) inapplicable to these categories which have been expressly excepted from the operation of sub-section (2).
(6) The words 'possessed by' used by the Legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 25 of 78 same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title.
(7) That the words 'restricted estate' used in Section 14(2) are wider than limited interest as indicated in Section 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee."
(Emphasis supplied by me)
36. Hence, in light of Badri Pershad (supra) and V. Tulasamma (supra), the position is that section 14(2) is in the nature of a proviso and has a field of its own without interfering with the operation of Section 14(1) materially. Section 14(2) applies to instruments, decrees, awards, gifts, etc. which create independent and new titles in favour of the females for the first time, on the other hand, where an instrument merely declares or recognises a pre- existing right, such as a claim to maintenance or partition or share to which the female is entitled, section 14(2) has no application and the female's limited interest would automatically be enlarged into an absolute one under CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 26 of 78 section 14(1) and the restrictions placed, if any, under the document would have to be ignored.
37. The question in the present case boils down to whether, in the facts of the present case, the will dated 14/06/1983 created an independent and new title in favour of the mother Smt. Harjit Kaur for the first time, or whether the will declared or recognised a pre-existing right/claim to maintenance.
38. It would be appropriate at this stage to consider the will dated 14/06/1983 Ex.P-1 which is the subject matter of the present suit. The will is extracted hereunder, in extenso:
"WILL I, Joginder Singh, S/o late Shri Dharam Singh Mahindroo, aged about 73 years, residing at D-6/4, Vasant Vihar, New Delhi has often thought of making a Will, which I hereby do in my sound state of physical and mental health, with my own free will, with any influence, pressure and coercion of any kind whatsoever.
2. I hereby revoke all former Wills that might have been made by me heretofrom.
3. I have retired as under Secretary to the Government of India (Department of Food) on 1 st December, 1967. I own a house on Plot No.D-6/4, measuring 400 square yards, in Vasant Vihar, New Delhi. The plot has been allotted to me as a perpetual sub-lessee by the President of India to the Government Servants' Cooperative House Building CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 27 of 78 Society Ltd. The entire cost of the land was paid by me to the said society out of my own savings. Thereafter, the house was constructed entirely with my own funds and is & therefore my self-acquired property. I am, thus, absolute owner of this property with full right to bequeath it in any manner I like.
4. I have also some movable assets, including Bank Deposits, accumulated during 34 years of my service and thereafter, out of my own savings.
5. In order to avoid any dispute about the inheritance of my property after my death, I devise and bequeath the same as under:
(i) I have my living wife, Smt. Harjit Kaur, two living sons, Shri Sudarshan Singh and Shri Ajit Singh; two living daughters, Smt. Harish Kaur and Smt. Baljit Kaur;
(ii) My elder son, Shri Sudarshan Singh, was adopted as son by my father-in-law, Shri Sukha Singh Khatra and my mother-in-law, Smt. Bhagwanti, both of whom have since expired. Shri Sudarshan Singh has inherited the entire movable and immovable property of his adoptive parents. It is well settled point of law that once a person is adopted he loses all right, title and interest in the property of his natural parents. Further since this inheritance by him, his behaviour towards his natural parents has not been good. Therefore, I devise that he, his divorced wife, Smt. Kuldip Kaur and their children or their assignees will have absolutely no (repeat NO) right to my immovable and immovable property after my and my wife's demise. In case he remarries, his new wife and their CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 28 of 78 children, if any, or their assignees will have NO (repeat NO) right whatsoever to any of my property, immovable and immovable.
(iii) My two daughters, Smt. Harish Kaur and Smt. Baljit Kaur are married and are well settled in their own homes. I have already spent well on their education and marriages and also on the marriages of their daughters. They or their children will have NO (repeat NO) claim on my property, immovable and movable, after my demise and demise of my wife.
6. After taking into account the above facts, I devise and bequeath all my immovable and movable property to my wife, Smt. Harjit Kaur for her residence and utilisation for her life time and after her demise the property, both immoveable and moveable, be vested in and shall be taken absolutely by my son Shri Ajit Singh. The estate duty, if any, shall be paid by my son, Shri Ajit Singh. My son Shri Ajit Singh will have no right to dispose of the house in any manner whatsoever during the life time of my wife, Smt. Harjit Kaur, she will receive all rental income of the entire house and shall be entitled to live in it for her life with all possible comfort and respect. It will be the responsibility of my son, Shri Ajit Singh, and his wife to look after his mother/her mother-in-law, Smt. Harjit Kaur, during her life time and keep her happy and contended like a dutiful son/daughter-in-law.
7. It is further clarified that after my demise and the demise of my wife, Shri Ajit Singh, who is at present working as Regional Coordinator in the Regional Staff training College of the Punjab and Sind Bank at Chandigarh, will perform the customary CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 29 of 78 ceremonies and other duties in the family according to his capacity.
8. If my wife, Smt. Harjit Kaur, predeceases me, my entire estate, immovable and movable will pass on, after my demise to my son, Shri Ajit Singh, as a sole legatee.
8. IN WITNESS OF the above I have executed this my last Will and Testament in the presence of the attesting witnesses and have seen me execute this my Will and whom I have seen attest the same in my presence and in the presence of each other of them at the instance.
Sd/-
(JOGINDER SINGH) TESTATOR.
th DATED: 14 June, 1983 WITNESS:
*** ***"
(Emphasis supplied by me)
39. Upon a perusal and consideration of the will, it can be deduced as follows:
39.1. The testator has mentioned that he was absolute owner of the house on Plot No.D-6/4, measuring 400 square yards, in Vasant Vihar, New Delhi which was his self-acquired property.
39.2. The testator has also mentioned that he was also the owner of some movable assets, including bank deposits, accumulated during 34 years of his service CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 30 of 78 and, thereafter, out of his own savings.
39.3. The testator was conscious that upon his demise he would be survived by his wife, two sons (of which the elder one was given up in adoption) and two daughters.
39.4. It was the testator's clear intention that his biological son Shri Sudarshan Singh (who had been given up in adoption) or the wife and children of the said son would not be inheriting anything from his property.
39.5. It was the testator's clear intention that the testator's daughters, i.e. the plaintiff herein and the defendant no.2 herein, or their children would not be inheriting anything from the testator's property.
39.6. It was the dominant intention of the testator that his son, i.e. the defendant no.1, was to inherit the properties of the testator absolutely, subject to the right of the testator's wife Smt. Harjit Kaur over the properties, moveable and immoveable, for her residence and utilisation for her lifetime.
39.7. It was the testator's intention that his wife Smt. Harjit Kaur shall have over the testator's properties the right of residence and utilisation for her life time.CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 31 of 78
39.8. It was the testator's intention that the defendant no.1 shall have no right to dispose of the house in any manner whatsoever during the lifetime of the testator's wife, Smt. Harjit Kaur.
39.9. It was the testator's intention that his wife Smt. Harjit Kaur had the right to receive all the rental income of the entire house and was entitled to live in the house for her life.
39.10.The testator also observed that it was to be the responsibility of his son, the defendant no.1, and the daughter-in-law to look after Smt. Harjit Kaur during her lifetime and to keep her happy and contended like a dutiful son/daughter-in-law.
40. It is the submission of the legal representatives of the plaintiff that in as much as a right of residence was given to Smt. Harjit Kaur in the house, it would ipso facto mean that the limited right to Smt. Harjit Kaur given under the will was necessarily in lieu of her claim for maintenance and that as such the limited right blossomed into an absolute right over the house.
41. I have given thoughtful consideration to the submissions made by both the parties. I am unable to agree with the submission of the legal representatives of the plaintiff that the limited right given to Smt. Harjit Kaur in the house CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 32 of 78 was in lieu of any pre-existing right/claim for maintenance.
42. The testator has clearly mentioned in the will that he had movable assets, including bank deposits, accumulated during 34 years of his service and thereafter, out of his own savings. By virtue of the will, the testator had given all these movable assets including bank deposits accumulated during the 34 years of his service and thereafter out of his savings to his wife Smt. Harjit Kaur for her utilisation during her lifetime. Apart from this, the testator had also given Smt. Harjit Kaur the right to enjoy all the rental income in respect of the house during her lifetime. Thus, the testator had made provision in the will for his wife Smt. Harjit Kaur for enjoyment and utilisation of the moveable assets including bank deposits and savings as well as rental income from the house. The plaintiff has been unable to show that all this was insufficient to cover the maintenance of the late mother.
43. The defendant nos. 1 and 2 have in paragraph 3A of their amended written statement stated that Late Sd. Joginder Singh had retired as Under-Secretary from the Government of India and that after retirement, he was getting monthly pension. It is further stated that after his death, the deceased mother of the parties became entitled to get the family pension and she was receiving monthly pension of Rs. 900/- which was sufficient for her maintenance. It is further stated that the mother was also CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 33 of 78 the owner of her self-acquired property and house bearing No. J-6, Rajouri Garden, New Delhi. It is further stated that on the death of her husband, the mother also had cash in the shape of FDRs and bank deposits amounting to about Rs. 2.50 lacs and that she was having regular interest income which was about Rs. 1,500/- per month, which was utilised by her for her peaceful living.
44. In the replication, the plaintiff has responded to paragraph 3A of the amended written statement by admitting that the late father had retired as Under-Secretary from the Government of India. The plaintiff has not specifically denied that the family pension was paid to the late mother after the demise of the father and, hence, there is no dispute that the family pension was being collected by the mother. The plaintiff has only denied the quantum of family pension for want of knowledge. The plaintiff has also not specifically denied that the mother also had cash in the shape of FDRs and bank deposits amounting to about Rs. 2.50 lacs and that she was having regular interest income which was about Rs. 1,500/- per month. Hence, the factum of the mother having amounts in FDRs and enjoying interest income is also not disputed. The plaintiff has also admitted that the property at Rajouri Garden was in the name of the late mother. Thus, the admitted position is that the mother was receiving family pension after demise of the father and was also having FDRs and bank deposits from which she was earning interest. The mother also had an immoveable property at Rajouri garden in her CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 34 of 78 own name. Again, the plaintiff has been unable to show that all this was insufficient to cover the maintenance of the late mother.
45. The onus to prove that Smt. Harjit Kaur had any pre-
existing right to maintenance was ultimately upon the plaintiff and upon a perusal of the evidence I would hold that the plaintiff has miserably failed to discharge this onus. It has come on the record that the late mother had received bank deposits and savings under the will. The late mother was also receiving pension. The late mother was also entitled to receive the rental income. The late mother was also having immoveable property in her own name. The plaintiff has been unable to show that all this was insufficient for taking care of the maintenance needs of the late mother. The plaintiff has also been unable to show that the late mother had ever made any claim for maintenance against her husband or her husband's estate. Thus, merely because a right of residence was given to the late mother in the suit property that would not ipso facto mean that the right of residence was in lieu of any maintenance.
46. Furthermore, the late father has observed in the will that it was the responsibility of his son, i.e. the defendant no.1, to take care of his mother during her lifetime so that she has a peaceful life. It is not the case of the plaintiff that the defendant no.1 did not fulfil this responsibility as stated in the will or that the defendant no.1 did not take care of the maintenance needs of his mother. The plaintiff has also CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 35 of 78 been unable to show that the late mother had ever claimed that her son i.e. the defendant no.1 was not looking after her.
47. The plaintiff herself never entered the witness box. The husband of the plaintiff as PW-1 had entered the witness box and had sought to depose on behalf of the plaintiff. He has admitted in his cross-examination that his testimony as made in his affidavit in evidence Ex.PW-1/A was based on what had been told to him by the plaintiff. Thus, his testimony was not based on his own personal knowledge but was only hearsay. The PW-1 has also admitted in his cross-examination that his wife, the plaintiff, had filed the suit independently and without any advice from the PW-1. He has also admitted that he came to know about filing of the suit about after 15 to 20 days of filing. Thus, he has admitted that he had nothing to do with the filing of the suit. The testimony of PW-1 is not based on his personal knowledge but is based on hearsay. A power of attorney holder cannot depose as to facts which are not within his knowledge.
48. The plaintiff has avoided to enter the witness box and to be tested in her cross-examination. As such, an adverse inference would be taken against the plaintiff. The defendant no.1 has clearly deposed that late Sardar Joginder Singh had prior to the execution of the will discussed the same with all his three children who were parties to the suit. He has also deposed that he had CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 36 of 78 specifically informed his children about his intentions and desires. He has further deposed that during the lifetime of late Sardar Joginder Singh, no objection of any nature was raised by the plaintiff. It is further deposed that the plaintiff was aware about the will since 1983. He has further deposed that the deceased mother was receiving family pension which was sufficient for her maintenance. He has further deposed that the mother was also owner of the Rajouri Garden property which was also sufficient to take care of her maintenance needs. He has further deposed that the mother had FDRs and bank deposits for about Rs. 2.5 lacs which were earning interest and that all this was good enough to take care of the mother's maintenance. The testimony of the defendant no.1 as DW- 1 regarding the savings and bank deposits with the late mother is corroborated by the will which mentions the savings and bank deposits. The plaintiff has herself not entered the witness box to depose in contradiction to what has been deposed by the defendant no.1 and to face cross- examination. The deposition of the defendant no.1 is believable in the absence of any contradictory testimony by the plaintiff herself. PW-1 who is the husband of the plaintiff has admitted that his deposition was solely on the basis of what his wife had told him. Thus, his testimony was mere hearsay. It is also clear from the cross- examination of PW-1 that he had no knowledge about the moveable properties of Smt. Harjit Kuar. In his cross- examination, he has deposed that he did not know if Smt. Harjit Kaur received any pension. He did not know if Smt. CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 37 of 78 Harjit Kaur was having any bank deposits to her credit. He has admitted that he made no inquiries about the moveable properties of Smt. Harjit Kaur since the suit was not filed by him. He further deposed that he never spoke to Smt. Harjit Kaur about the deposits or money owned by her and that Smt. Harjit Kaur also never spoke to him about it. He further deposed that he was not aware if Smt. Harjit Kaur was having any income from interest. Thus, PW-1 is clearly unaware of the financial position of late mother and of the moveable assets which were available with the mother for her sustenance and maintenance. In the result, the testimony of PW-1 to the effect that the life estate in the suit property was granted to the late mother in lieu of any right to maintenance cannot be accepted. On the whole, the plaintiff has failed to discharge the onus to prove that the mother had any pre-existing right to maintenance or that the right to residence was granted to her in lieu of any pre-existing right of maintenance.
49. At this juncture, it would be appropriate to refer to the decision of the Hon'ble Supreme Court in Jogi Ram (supra). The facts of this case were that one Tulsi Ram had executed a will dated 15/04/1986. Tulsi Ram passed away on 17/11/1969. The will bequeathed the testator's estate to his son Jogi Ram and his second wife Ram Devi in half and half. However, the nature of bequeath was different for the two. Jogi Ram was given absolute ownership rights over his share, whereas Ram Devi was given a limited ownership for her enjoyment during her lifetime with CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 38 of 78 respect to her share with a specific provision that she could not alienate, transfer or create third-party rights over the same, and that after her lifetime the property was to vest absolutely in Jogi Ram. The issue in the said case was whether the limited right to Ram Devi under the will had become absolute under section 14(1) of the HSA or whether it remained a limited right under section 14(2) of the HSA. It was the argument made on behalf of Ram Devi that the estate had been given to her for maintenance and hence the situation was governed by section 14(1) of the Act.
50. In the aforesaid factual scenario in Jogi Ram (supra), the Hon'ble Supreme Court held as under:
"20. There is no doubt that Section 14 of the said Act is the part of the said Act to give rights of a property to a Hindu female and was a progressive step. Sub-section (1) of Section 14 of the said Act makes it clear that it applies to properties acquired before or after the commencement of the said Act. Any property so possessed was to be held by her as full owner thereof and not as a limited owner. The Explanation to sub-section (1) of Section 14 of the said Act defines the meaning of "property" in this sub-section to include both movable and immovable property acquired by the female Hindu by inheritance or devise or a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, or by her skill or exertion, or by purchase or by prescription or in any other manner whatsoever, including stridhana. The Explanation is quite expansive.CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 39 of 78
21. Sub-section (2) of Section 14 of the said Act is in the nature of a proviso. It begins with a "non obstante clause". Thus, it says that "[n]othing 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....", etc. where a restricted estate in such property is prescribed. In our view the objective of sub-section (2) above is quite clear as enunciated repeatedly by this Court in various judicial pronouncements i.e. there cannot be a fetter in a owner of a property to give a limited estate if he so chooses to do including to his wife but of course if the limited estate is to the wife for her maintenance that would mature in an absolute estate under Section 14(1) of the said Act.
22. Before considering the submissions it would be appropriate to turn to the will itself. The will while conferring a limited estate on Ram Devi, Tulsi Ram had clearly stated that she will earn income from the property for her livelihood. The income, thus, generated from the property is what has been given for maintenance and not the property itself. The next clarification is that after the lifetime of Ram Devi, the appellant will get the ownership of the remaining half portion also. It is specified that in case Ram Devi pre-deceases Tulsi Ram, then all the properties would go absolutely to the appellant and that the other children will have no interest in the property.
23. We may note that Tulsi Ram had six children. One son and four daughters are from the first wife and Bimla Devi was the daughter from the second wife. At the stage when the will was executed one of the daughters was unmarried and the will also provided that in case for performing the marriage CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 40 of 78 Ram Devi needs money she will have the right to mortgage the property and earn money from the same and will further have the right to gain income even prior to the marriage.
24. We have set forth the terms and conditions of the will to understand the intent of the testator. The testator is, at least, clear in terms that the income derived from the property is what is given to the second wife as maintenance while insofar as the properties are concerned, they are divided half-and- half with the appellant having an absolute share and the wife having a limited estate which after her lifetime was to convert into an absolute estate of the appellant.
25. Now turning to the submissions of the learned counsel for the parties.
26. The learned counsel for the appellant contended that the life estate was not given to Ram Devi in lieu of recognition of any pre-existing right of Ram Devi or in lieu of maintenance and, thus, Section 14(2) of the said Act would apply and not Section 14(1) of the said Act. The plea of res judicata was again reiterated. It was urged that the High Court proceeded on an erroneous premise as if the law had changed from the first round of litigation while the fact was that the law was the same at both stages of time. The distinction which was sought to be made was that Shakuntla Devi case [Shakuntla Devi v. Kamla, (2005) 5 SCC 390] was wrongly relied upon as the will in that case was dated 1-10- 1935 and it was, thus, a pre-1956 will and, thus, that judgment was not precedent for factual scenario in question. The suit property was a self- acquired property of Tulsi Ram and, thus, he was competent to execute the will.CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 41 of 78
27. ... ... ...
28. On behalf of the respondents it was, once again, emphasised that the factual scenario was similar to Shakuntla Devi case [Shakuntla Devi v. Kamla, (2005) 5 SCC 390] and the rights of a female Hindu post the said Act have been crystallised and enunciated in V. Tulasamma case [V. Tulasamma v. Sesha Reddy, (1977) 3 SCC 99] since she was an absolute owner she was entitled to sell the land and the respondents were bona fide buyers who were protected by Section 41 of the TP Act.
Further no substantial question of law was required to be framed in view of the Constitution Bench judgment of the Supreme Court in Pankajakshi case [Pankajakshi v. Chandrika, (2016) 6 SCC 157 : (2016) 3 SCC (Civ) 105 : AIR 2016 SC 1213] .
Our view
29. We have extracted the relevant portions of the enactment, the document in question being the will and have already opined on the interpretation of the will. The submissions of the learned counsel for the parties have, thus, to be appreciated in the conspectus of the same.
30. We do believe that there are only two real aspects to be examined in the present case as the issue of even framing a question of law stands settled. The two aspects, in our view are as under:
30.1. (i) In the given factual scenario did Ram Devi become the absolute owner of the property in view of Section 14(1) of the said Act or in view of the will the Explanation under Section 14(2) would apply.CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 42 of 78
30.2. (ii) What is the effect of the first round of litigation which came up to this Court between the appellant and Ram Devi, the two beneficiaries of the will.
31. We are of the view that both these questions have to be answered in favour of the appellant and for that reason the impugned judgment is unsustainable.
32. We would first like to turn to the seminal judgment in V. Tulasamma case [V. Tulasamma v. Sesha Reddy, (1977) 3 SCC 99] . In para 20 the propositions emerging in respect of incidents and characteristics of a Hindu woman's right to maintenance have been crystallised as under : (SCC pp. 113-14) "20. 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 incidents 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 his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow;CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 43 of 78
(2) though the widow's right to maintenance is not a right to property but it is undoubtedly 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 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 (Jayanti Subbiah v. Alamelu Mangamma [Jayanti Subbiah v. Alamelu Mangamma, 1902 SCC OnLine Mad 4 : ILR (1904) 27 Mad 45] and Yellawa v. Bhimangavda [Yellawa v. Bhimangavda, 1893 SCC OnLine Bom 3 : ILR (1893) 18 Bom 452] ) of CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 44 of 78 co-owner in the property of her husband, though her co-ownership 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 the property or purchases the same is in a position to make due arrangements for her maintenance.' "
33. In the light of the aforesaid passage, Sections 14(1) and 14(2) of the said Act were entered by the Court. The word "possessed" was held to be used in a wide sense not requiring a Hindu woman to be in actual or physical possession of the property and it would suffice if she has a right in the property. The discussion in para 33 thereafter opines that the intention of Parliament was to confine sub-section (2) of Section 14 of the said Act only to two transactions viz. a gift and a will, which clearly would not include property received by a Hindu female in lieu of maintenance or at a partition. The intention of Parliament in adding the other categories to sub-section (2) was merely to ensure that any transaction under which a Hindu female gets a new or independent title under any of the modes mentioned in Section 14(2) of the said Act.
The conclusions were thereafter set forth in para 62 of the judgment as under : (SCC pp. 135-36) "62. We would now like to summarise the legal conclusions which we have reached after an exhaustive consideration of the authorities mentioned above on the question of law involved in this appeal as to the CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 45 of 78 interpretation of Sections 14(1) and (2) of the Act of 1956. These conclusions may be stated thus:
(1) The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights.
(2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 46 of 78 the 1956 Act and promote the socio-
economic ends sought to be achieved by this long needed legislation.
(3) Sub-section (2) of Section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of Section 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by Section 14(1) or in a way so as to become totally inconsistent with the main provision.
(4) Sub-section (2) of Section 14 applies to instruments, decrees, awards, gifts, etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-
existing rights. In such cases a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the female's limited interest would automatically be enlarged into an absolute one by force of Section 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 47 of 78 a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-section (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee.
(5) The use of express terms like "property acquired by a female Hindu at a partition", "or in lieu of maintenance", "or arrears of maintenance", etc. in the Explanation to Section 14(1) clearly makes sub-
section (2) inapplicable to these categories which have been expressly excepted from the operation of sub-
section (2).
(6) The words "possessed by" used by the legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same.
Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 48 of 78 contemplate the possession of any rank trespasser without any right or title.
(7) That the words "restricted estate"
used in Section 14(2) are wider than limited interest as indicated in Section 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee."
34. In our view the relevant aspect of the aforesaid conclusion is Conclusion (4) in para 62 which opines where sub-section (2) of Section 14 of the said Act would apply, and this does inter alia apply to a will which may create independent and new title in favour of females for the first time and is not a recognition of a pre-existing right. In such cases of a restricted estate in favour of a female is legally permissible and Section 14(1) of the said Act will not operate in that sphere.
35. We may add here that the objective of Section 14(1) is to create an absolute interest in case of a limited interest of the wife where such limited estate owes its origin to law as it stood then. The objective cannot be that a Hindu male who owned self- acquired property is unable to execute a will giving a limited estate to a wife if all other aspects including maintenance are taken care of. If we were to hold so it would imply that if the wife is disinherited under the will it would be sustainable but if a limited estate is given it would mature into an absolute interest irrespective of the intent of the testator. That cannot be the objective, in our view.
36. The testator in the present case, Tulsi Ram, had taken all care for the needs of maintenance of his CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 49 of 78 wife by ensuring that the revenue generated from the estate would go to her alone. He, however, wished to give only a limited life interest to her as the second wife with the son inheriting the complete estate after her lifetime. We are, thus, of the view that it would be the provisions of Section 14(2) of the said Act which would come into play in such a scenario and Ram Devi only had a life interest in her favour. The natural sequitur is that the respondents cannot inherit a better title than what the vendor had and, thus, the view taken by the trial court and the first appellate court is the correct view and the sale deeds in favour of the respondents cannot be sustained."
(Emphasis supplied by me)
51. It would also be appropriate to refer to the decision of the Hon'ble Supreme Court in Ranvir Dewan (supra). The facts in the said case were that one Mr. B.R. Dewan was the sole owner of the suit house. On 24/06/1984, Mr. B.R. Dewan executed a will and gave the ground floor to his son Mr. Ranvir Dewan exclusively and the first floor exclusively to his daughter Ms. Rashmi Khanna. So far as his wife Mrs. Pritam was concerned, he gave her a "life interest" to reside in the suit house till her death and also to recover the rent and utilise the income earned by way of rent to maintain herself and the suit house and also the right to evict the tenants and induct new ones. Mr. B.R. Dewan expired and disputes cropped up between the mother and son on one side and the daughter on the other. The mother and son claimed that the mother had become absolute owner of the suit house under section 14(1) of the CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 50 of 78 HSA, whereas the daughter claimed that the mother's right was a limited interest under section 14(2). In this factual background, the Hon'ble Supreme Court held as under:
"4. The dispute in this appeal is essentially between the mother, brother(son) and the sister(daughter). It relates to a residential house which consists of basement and two floors situated at D-246, Defence Colony, New Delhi (hereinafter referred to as "the suit house").
5. Mr B.R. Dewan was the sole owner of the suit house. He had two wives, Mrs Kamla Devi and second, Mrs Pritam. From wedlock with first wife Mrs Kamla Devi, a son, Ashok was born whereas from wedlock with second wife, Mrs Pritam, a son, Ranvir, appellant and a daughter, Rashmi, Respondent 1 were born. Mr Dewan owned movable and immovable properties.
6. On 24-6-1984, Mr Dewan executed a will of his properties (movable and immovable). So far as the suit house with which we are concerned in this appeal, Mr Dewan gave its ground floor to his son Ranvir Dewan exclusively whereas the first floor, he gave exclusively to his daughter Rashmi Khanna.
7. So far as wife Pritam was concerned, he gave to her a "life interest" to reside in the suit house till her death and also to recover the rent and utilise the income earned by way of rent to maintain herself and the suit house. He also gave her a right to evict the tenants and induct the new ones.
8. The will, in clear terms, recited that the wife Mrs Pritam is given "life interest" in the suit house and she will act as a trustee of its legal owners (son and CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 51 of 78 daughter) and utilise the income earned out of it and on her death, by his son and daughter to whom the suit house was given exclusively.
9. The will also recited that Ranvir and Rashmi would be free to get themselves assessed as owners of their respective shares in the suit house in their wealth tax assessment cases on the death of Mr Dewan.
10. Mr Dewan then gave his share in HUF property
--B.R. Dewan & sons which consists of a plot at Ghaziabad, bank balances, shares, debentures, fixed deposits and all household articles exclusively to his wife Mrs Pritam. He also made provision for his first wife Kamla Devi for her maintenance to pay a Rs 500 per month to her during her lifetime.
11. In this manner, Mr Dewan made disposition of his entire movable and immovable property in the will. In the last, he expressed that he has executed the will with a hope that there would be no dispute and litigation amongst his family members qua the properties on his death.
12. On 16-9-1984, Mr Dewan expired. Mrs Pritam, second wife of late Mr Dewan then applied for grant of probate of the will dated 26-4-1984. The competent court granted the probate on 12-10-1987. It was followed by the consequential order dated 5- 1-1989 to enable the parties to give effect to the will. The son and daughter accordingly got their names mutated in the municipal records as owners of their respective shares in the suit house.
13. Contrary to the testator's hope, soon after his demise, the disputes started between the mother and son on one side and the daughter on the other side.CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 52 of 78
Initially, the parties sat together and decided to develop the suit house by making some additions/alterations and accordingly entered in family settlement followed by an agreement with the developers/builders to develop the suit house.
14. However, the disputes could not be settled amicably and instead got precipitated. The disputes were essentially centred around to their inter se ownership rights over the suit house including its nature, their shares, income earned from the suit house and the newly constructed 3rd floor and who should receive it and lastly, ownership rights over the 3rd floor.
xxx xxx xxx
xxx xxx xxx
17. According to the plaintiff, Mrs Pritam (wife) was entitled to seek a declaration that she is the absolute owner of the suit house including its 3rd floor. It was alleged that her "life interest" was enlarged and ripened into an absolute interest by virtue of Section 14(1) of the Hindu Succession Act, 1956 (hereinafter referred to as "the Act") on the death of her husband. Though the plaint contains several other averments but they need not be stated herein being unnecessary to examine the issue relating to grant of Relief No. (v).
18. Respondent 1 (Defendant 1) filed the written statement. While denying the plaintiffs' claim, it was contended that Plaintiff 2, Mrs Pritam did not acquire absolute interest in the suit house and nor her "life interest" was enlarged and ripened into an absolute interest by virtue of Section 14(1) of the Act. It was contended that Plaintiff 2 received only "life interest" to live in the suit house during her CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 53 of 78 lifetime in terms of the will and, therefore, such right squarely falls under Section 14(2) of the Act. It was contended that so far as Respondent 1 is concerned, she acquired an absolute ownership right in the first floor of the suit house on the strength of clear recitals in the will.
xxx xxx xxx
xxx xxx xxx
30. The main question, which arises for consideration in this appeal, is whether the two courts below were justified in holding that the case of the appellant i.e. Mrs Pritam falls under Section 14(2) of the Act thereby she continued to enjoy only the "life interest" in the suit house.
31. In other words, the question that arises for consideration in this appeal is, what is the true nature of the right received by Mrs Pritam in the suit house through will dated 24-8-1986 from her husband viz. "absolute" by virtue of Section 14(1) of the Act or "life interest" by virtue of Section 14(2) of the Act.
32. In order to decide the question as to whether the appellant's case falls under Section 14(1) or (2) of the Act, it is necessary to first examine as to what is the true nature of the estate held by the testator. Second, what the testator had intended and actually bequeathed to his wife by his will; and lastly, the right in the property received by Mrs Pritam viz. absolute interest by virtue of sub-section (1) or "life interest" by virtue of sub-section (2) of Section 14 of the Act.
33. Coming now to the facts of the case, it is not in dispute that the suit house was the self-acquired CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 54 of 78 property of late Mr Dewan. It is also not in dispute as one can take it from reading the contents of the will that Mr Dewan had intended to give only "life interest" to his wife in the suit house, which he gave to her for the first time by way of disposition of his estate independent of her any right. It is also not in dispute that it was confined to a right of residence to live in the suit house during her lifetime and to use the income earned from the suit house to maintain herself and the suit house. It is also not in dispute that the testator gave to his son ground floor of the suit house and first floor to his daughter with absolute right of ownership. The testator also permitted both of them to get their names mutated in the municipal records as absolute owners and also get them assessed as owners in the wealth tax assessment cases.
34. So far as other properties viz. one plot at Ghaziabad, share in HUF and movable properties were concerned, Mr Dewan gave these properties to Mrs Pritam, his wife absolutely.
35. It is a settled principle of law that what the testator intended to bequeath to any person(s) in his will has to be gathered primarily by reading the recitals of the will only.
36. As mentioned above, reading of the will would go to show that it does not leave any kind of ambiguity therein and one can easily find out as to how and in what manner and with what rights, the testator wished to give to three of his legal representatives his self-acquired properties and how he wanted to make its disposition.
37. Law relating to interpretation of Sections 14(1) and (2) of the Act is fairly well settled by a series of CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 55 of 78 decisions of this Court. However, the discussion on the interpretation of Sections 14(1) and (2) of the Act can never be complete without mentioning the first leading decision of this Court in V. Tulasamma v. Sesha Reddy [V. Tulasamma v. Sesha Reddy, (1977) 3 SCC 99] . In this decision, their Lordships (three-Judge Bench) interpreted succinctly sub-sections (1) and (2) of Section 14 of the Act and then on facts involved in that case held that the case falls under Section 14(1) of the Act. This decision is referred by this Court in every subsequent case dealing with the issue relating to Section 14 of the Act and then after explaining its ratio has applied the same to the facts of each case to find out as to whether the case on hand attracts Section 14(1) or 14(2) of the Act. Indeed, we find that attempts were made in past for reconsideration of the law laid down in V. Tulasamma [V. Tulasamma v. Sesha Reddy, (1977) 3 SCC 99] , but this Court consistently turned down the request. (See Gullapalli Krishna Das v. Vishnumolakayya Venkayya [Gullapalli Krishna Das v. Vishnumolakayya Venkayya, (1978) 1 SCC 67] , Bai Vajia v. Thakorbhai Chelabhai [Bai Vajia v. Thakorbhai Chelabhai, (1979) 3 SCC 300] and Thota Sesharathamma v. Thota Manikyamma [Thota Sesharathamma v. Thota Manikyamma, (1991) 4 SCC 312] .)
38. In V. Tulasamma [V. Tulasamma v. Sesha Reddy, (1977) 3 SCC 99] , the learned Judge, S. Murtaza Fazal Ali, J. speaking for the Bench, succinctly and in a lucid manner while analysing the true scope of Sections 14(1) and (2) of the Act held as under:
(SCC pp. 102-03) "(3) Section 14(1) and the Explanation thereto of the Hindu Succession Act, 1956, CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 56 of 78 provide that any property possessed by a female Hindu, whether acquired before or after the commencement of the 1956 Act, shall be held by her as full owner thereof and not as a limited owner; and that "property"
includes both movable and immovable property acquired by her by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether from 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 the 1956 Act. The language is in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the Act and promote the socio-economic ends, namely, to enlarge her limited interest to absolute ownership in consonance with the changing temper of the times sought to be achieved by such a long legislation.
(4) Section 14(2) provides that nothing contained in Section 14(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 decree, order or award prescribes a restricted estate in such property. It is in the nature of a proviso and has a field of its own without interfering with the operation of Section 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 57 of 78 provision or the protection granted by Section 14(1) or in a way so as to become totally inconsistent with the main provision.
(5) Section 14(2) applies only to instruments, decrees, awards, gifts, etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-existing rights. In such cases, a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in that sphere. Where, however, an instrument merely declares or recognises a pre-existing right such as a claim to maintenance or partition or share to which the female is entitled, Section 14(2) has absolutely no application and the female's limited interest would automatically be enlarged into an absolute one by force of Section 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus, where a property is allotted or transferred to a female in lieu of maintenance or a share at a partition, the instrument is taken out of the ambit of sub-section (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee.
(6) The use of terms like "property acquired by a female Hindu at a partition", "or in lieu of maintenance", or "arrears of maintenance" etc. in the Explanation to Section 14(1) clearly makes sub-section (2) inapplicable to these categories which have been expressly excepted from the operation of CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 58 of 78 sub-section (2).
*** (8) The words "restricted estate" in Section 14(2) are wider than limited interest as indicated in Section 14(1) and they include not only limited interest but also any other kind of limitation that may be placed on the transferee."
39. Similarly, while explaining the ratio of V. Tulasamma [V. Tulasamma v. Sesha Reddy, (1977) 3 SCC 99] and how one has to read the ratio for being applied to the facts of a particular case, this Court in Sadhu Singh v. Gurdwara Sahib Narike [Sadhu Singh v. Gurdwara Sahib Narike, (2006) 8 SCC 75] again succinctly discussed the applicability of Sections 14(1) and (2) of the Act and on facts involved therein held that the facts involved would attract Section 14(2) of the Act. Balasubramanyan, J. speaking for the two-Judge Bench held in paras 13, 14 and 15 as under: (Sadhu Singh case [Sadhu Singh v. Gurdwara Sahib Narike, (2006) 8 SCC 75] , SCC pp. 86-87) "13. An owner of property has normally the right to deal with that property including the right to devise or bequeath the property. He could thus dispose it of by a testament. Section 30 of the Act, not only does not curtail or affect this right, it actually reaffirms that right. Thus, a Hindu male could testamentarily dispose of his property. When he does that, a succession under the Act stands excluded and the property passes to the testamentary heirs. Hence, when a male Hindu executes a will bequeathing the properties, the legatees take it subject to the CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 59 of 78 terms of the will unless of course, any stipulation therein is found invalid. Therefore, there is nothing in the Act which affects the right of a male Hindu to dispose of his property by providing only a life estate or limited estate for his widow. The Act does not stand in the way of his separate properties being dealt with by him as he deems fit. His will hence could not be challenged as being hit by the Act.
14. When he thus validly disposes of his property by providing for a limited estate to his heir, the wife, the wife or widow has to take it as the estate falls. This restriction on her right so provided, is really respected by the Act. It provides in Section 14(2) of the Act, that in such a case, the widow is bound by the limitation on her right and she cannot claim any higher right by invoking Section 14(1) of the Act. In other words, conferment of a limited estate which is otherwise valid in law is reinforced by this Act by the introduction of Section 14(2) of the Act and excluding the operation of Section 14(1) of the Act, even if that provision is held to be attracted in the case of a succession under the Act. Invocation of Section 14(1) of the Act in the case of a testamentary disposition taking effect after the Act, would make Sections 30 and 14(2) redundant or otiose. It will also make redundant, the expression "property possessed by a female Hindu" occurring in Section 14(1) of the Act. An interpretation that leads to such a result cannot certainly be accepted. Surely, there is nothing in the Act compelling such an interpretation. Sections 14 and 30 both have play. Section 14(1) CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 60 of 78 applies in a case where the female had received the property prior to the Act being entitled to it as a matter of right, even if the right be to a limited estate under the Mitakshara law or the right to maintenance.
15. Dealing with the legal position established by the decisions in Tulasamma [V. Tulasamma v. Sesha Reddy, (1977) 3 SCC 99] and Bai Vajia v. Thakorbhai Chelabhai [Bai Vajia v. Thakorbhai Chelabhai, (1979) 3 SCC 300] the position regarding the application of Section 14(2) of the Act is summed up in Mayne on Hindu Law thus: (SCC pp. 135- 36, para 61) '61. ... (4) Sub-section (2) of Section 14 applies to instruments, decrees, awards, gifts, etc. which create independent and new titles in favour of females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-
existing rights. [The creation of] a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in [such a case]. ...
where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-section (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee.' (See p. 1172 of the 15th Edn.)"
CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 61 of 7840. Reading of the aforementioned principle of law laid down in V. Tulasamma [V. Tulasamma v. Sesha Reddy, (1977) 3 SCC 99] and Sadhu Singh [Sadhu Singh v. Gurdwara Sahib Narike, (2006) 8 SCC 75] , it is clear that the ambit of Section 14(2) of the Act must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a "restricted estate" in the property. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of Section 14(2) of the Act, even if the instrument, decree, order or award allotting the property prescribes a "restricted estate" in the property.
41. Applying the principle laid down in the aforementioned two cases to the facts of the case on hand, we are of the considered opinion that the case of Plaintiff 2, Mrs Pritam does not fall under Section 14(1) of the Act but it squarely falls under Section 14(2) of the Act. In other words, in our view, in the facts of this case, the law laid down in Sadhu Singh case [Sadhu Singh v. Gurdwara Sahib Narike, (2006) 8 SCC 75] would apply.
42. A fortiori, Plaintiff 2, late Mrs Pritam received only "life interest" in the suit house by the will dated 24-6-1986 from her late husband and such "life interest" was neither enlarged nor ripened into an absolute interest in the suit house and remained "life interest" i.e. "restricted estate" till her death under Section 14(2) of the Act. This we say for the following factual reasons arising in the case.CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 62 of 78
42.1. First, the testator, Mr Dewan being the exclusive owner of the suit house was free to dispose of his property the way he liked because it was his self-earned property.
42.2. Second, the testator gave the suit house in absolute ownership to his son and the daughter and conferred on them absolute ownership. At the same time, he gave only "life interest" to his wife i.e. a right to live in the suit house which belonged to son and daughter. Such disposition, the testator could make by virtue of Section 14(2) read with Section 30 of the Act.
42.3. Third, such "life interest" was in the nature of "restricted estate" under Section 14(2) of the Act which remained a "restricted estate" till her death and did not ripen into an "absolute interest" under Section 14(1) of the Act. In other words, once the case falls under Section 14(2) of the Act, it comes out of Section 14(1). It is permissible in law because Section 14(2) is held as proviso to Section 14(1) of the Act.
42.4. Fourth, the effect of the will once became operational after the death of the testator, the son and the daughter acquired absolute ownership in the suit house to the exclusion of everyone whereas the wife became entitled to live in the suit house as of right. In other words, the wife became entitled in law to enforce her right to live in the suit house qua her son/daughter so long as she was alive. If for any reason, she was deprived of this right, she was entitled to enforce such right qua son/daughter but not beyond it. However, such was not the case here.
42.5. Fifth, the testator had also given his other CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 63 of 78 properties absolutely to his wife which enabled her to maintain herself. Moreover, a right to claim maintenance, if any, had to be enforced by the wife. She, however, never did it and rightly so because both were living happily. There was, therefore, no occasion for her to demand any kind of maintenance from her husband.
42.6. Sixth, it is a settled principle of law that the "life interest" means an interest which determines on the termination of life. It is incapable of being transferred by such person to others being personal in nature. Such person, therefore, could enjoy the "life interest" only during his/her lifetime which is extinguished on his/her death. Such is the case here. Her "life interest" in the suit house was extinguished on her death on 12-9-2016.
42.7. Seventh, as mentioned above, the facts of the case on hand and the one involved in Sadhu Singh [Sadhu Singh v. Gurdwara Sahib Narike, (2006) 8 SCC 75] are found to be somewhat similar. The facts of Sadhu Singh [Sadhu Singh v. Gurdwara Sahib Narike, (2006) 8 SCC 75] were that the husband executed a will in favour of his wife of his self-acquired property in 1968. Though he gave to his wife absolute rights in the properties bequeathed but some restrictions were put on her right to sell/mortgage the properties and further it was mentioned in the will that the said properties after wife's death would go to the testator's nephew. Due to these restrictions put by the testator on his wife's right to sell/mortgage, it was held that the wife received only the "life interest" in the properties by will and such "life interest", being a "restricted estate" within the meaning of Section 14(2) of the Act, did not enlarge and nor ripen into the absolute interest under Section 14(1) but remained a "life CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 64 of 78 interest" i.e. "restricted estate" under Section 14(2) of the Act. It was held that such disposition made by the husband in favour of his wife was permissible in law in the light of Section 14(2) read with Section 30 of the Act. In our view, the facts of the case on hand are similar to the facts of Sadhu Singh case [Sadhu Singh v. Gurdwara Sahib Narike, (2006) 8 SCC 75] and, therefore, this case is fully covered by the law laid down in Sadhu Singh case [Sadhu Singh v. Gurdwara Sahib Narike, (2006) 8 SCC 75] .
43. In view of the foregoing discussion, we are of the considered opinion that there is no error in the impugned judgment [Pritam Dewan v. Rashmi Khanna, 2016 SCC OnLine Del 3854] , which has rightly held that the case of Mrs Pritam (Plaintiff 2) falls under Section 14(2) of the Act insofar as it relates to the suit house."
(Emphasis supplied by me)
52. The ratio of the decisions in Jogi Ram (supra) and Ranvir Dewan (supra) would have clear application in the facts of the present case.
53. In the present case, it is clear from the reading of the will that it was the dominant intention of the testator that it was his son, i.e., the defendant no.1, who was to inherit all his properties subject to the right of the testator's wife to utilisation of the properties and residence in the house during her lifetime including the right to rental income from the entire house. The testator had very specifically provided that his other children including the plaintiff herein were not to receive anything in inheritance. The CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 65 of 78 testator had given the right of utilisation of the moveable assets including bank deposits accumulated over 34 years and savings to his wife. The testator had also made provision for rental income of the house for his wife. Thus, the testator had made provision for maintenance of his wife through the bank deposits, savings and rental income. Similar to the case in Jogi Ram (supra), it was the income which would be generated through rentals of the house is what had been given for maintenance and not the house itself. It is also pertinent that in the will the testator has observed that it was the responsibility of his son i.e. defendant no.1 and the daughter-in-law to look after the testator's wife Smt. Harjit Kaur during her lifetime and to keep her happy and contended like a dutiful son/daughter- in-law. Thus, the testator was confident that his son and daughter-in-law would be looking after and maintaining his wife Smt. Harjit Kaur during her lifetime. It is not even the case of the plaintiff that the defendant no.1 and his wife had not maintained and looked after Smt. Harjit Kaur during her lifetime as per the direction of the late father in his will. The plaintiff has also been unable to show that Smt. Harjit Kaur had ever made any claim for maintenance against her husband or her husband's estate or had ever claimed that the suit property had become her absolute property.
54. On the whole, I would hold that the plaintiff has been unable to prove that the right of Smt. Harjit Kaur of residence in the house under the will was in lieu of any CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 66 of 78 claim for maintenance. As such, the entire foundation of the plaintiff's case fails. The case would not be governed by section 14(1) of the HSA but would be covered under section 14(2) of the HSA.
55. The LRs for the plaintiff have raised an argument that the decision in Sadhu Singh (supra) and other decisions following Sadhu Singh (supra) which were relied upon by the defendants were per incuriam as they were contrary to the earlier decisions of the Hon'ble Supreme Court which have been cited by the plaintiff. I do not find any merit in this contention. The cases relied upon by both the parties were on their own respective facts. As I have already mentioned, in the decisions relied upon by the LRs of the plaintiff, the Hon'ble Supreme Court on the facts of the case and interpretation of the instrument involved held that it was section 14(1) which applied and not section 14(2). On the other hand, in the decisions relied upon by the defendants, the Hon'ble Supreme Court on the facts of the case and interpretation of the instrument involved held that it was section 14(2) which applied and not section 14(1).
56. The decisions relied upon by the LRs of the plaintiff are clearly distinguishable since in all these decisions there was a clear finding that the limited interest had been given to the woman in the property in recognition of some pre- existing right or in lieu of maintenance. In this regard, it would be appropriate to refer to the decisions cited by the LRs of the plaintiff, as under:
CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 67 of 7856.1. In C. Musailamani Mudaliar (supra), a limited estate had been given by one Somasundaram Pillai to his widow Sellathachi through a will. The will in question was dated prior to the coming into force of the HSA. On a reading of the particular will in that case, the Hon'ble Court held that the testator was conscious of the pre-existing legal position to maintain his wife and that the limited estate had been given in lieu of maintenance.
56.2. In Munni Devi (supra), there was a finding that the original defendant Smt. Bhonri Devi had a pre-
existing right of maintenance from the estate of the HUF of her husband.
56.3. In Judupy Pardha Sarathy (supra), upon a reading of the particular will in the case, it was found that the executant of the will had made arrangements to maintain his wife out of part of his estate in which limited interest was given to the wife.
56.4. In Mangat Mal (supra), on the particular terms of reference and award giving limited interest in the subject property to the concerned woman Smt. Sukh Devi, it was found that the same was in lieu of a pre-existing right of maintenance.
56.5. In Thota Sesharathamma (supra), the factual CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 68 of 78 background was in the context of a will executed by one Venkata Subbayya who died on 14/01/1932, i.e. in the era prior to the enactment of the HSA, when the Shastric law applied which provided only for a limited estate for Hindu females and only a right to maintenance.
56.6. In Badri Prasad (supra), it was found that the concerned woman Smt. Kansho Devi had a pre- existing right in the joint properties together with the right to partition under the provisions of the Hindu Women's Rights to Property Act, 1937.
56.7. In V. Tulasamma (supra), there was a finding that the appellant Smt. V. Tulasamma had acquired the properties under a compromise in lieu or satisfaction of maintenance.
56.8. In Bai Vajia (supra), the concerned woman Smt. Bai Vajia had obtained possession of the subject land under the terms of a decree when there was default in payment of maintenance under the decree.
56.9. In Nazar Singh (supra), the limited interest was given by one Gurdial Singh to his wife Smt. Harmel Kaur under a compromise in lieu of her maintenance.
CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 69 of 7856.10. In Gulwant Kaur (supra), the finding was that the appellant Smt. Gulwant Kaur had received the limited interest in lieu of maintenance.
56.11. In Ram Kali (supra), upon a reading of the particular will, the Hon'ble Court held that the testator had bequeathed the suit properties recognising and being conscious of her pre- existing right to maintenance. This case was also in the factual setting when the widow was in possession of the suit house when the Hindu Succession Act came into force.
56.12. In Beni Bai (supra), there was a finding that the widow was conferred the limited right in lieu of maintenance in recognition of her pre-existing right under the Shastric law.
56.13. In Jaswant Kaur (supra), the case was in the factual setting of a will which was executed long before the Hindu Succession Act and hence was in the backdrop of the Shastric law providing for only a limited estate upon the Hindu females and the right to maintenance.
56.14. In Santosh (supra), the concerned woman was given possession of the land under a compromise decree in which it was specifically recorded that the land was given for her maintenance.
CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 70 of 7856.15. In Jagannathan Pillai (supra), the concerned woman had acquired a widow's estate under the shastric or traditional Hindu law which applied prior to the commencement of the Hindu Succession Act, 1956.
56.16. In Shyam Narayan Singh (supra), there is a finding that the property was recorded in the name of the concerned woman who was in possession as on the date when the Hindu Succession Act came into being.
56.17. In Raghubar Singh (supra), there was a compromise decree in which it was recorded that the concerned woman Mst. Janak Dulari was to remain in ownership and possession.
57. In the present case, the plaintiff has been unable to discharge the onus to prove that the right to residence in the suit property was given to the mother in lieu of any pre-existing right to maintenance. Thus, the case laws cited by the plaintiff are clearly distinguishable and not applicable to the facts of the present case.
58. There is another important aspect of the matter. An overview of the decisions cited by the LRs of the plaintiff shows that in these decisions the woman who was granted the limited estate had herself claimed that the limited CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 71 of 78 estate had blossomed into an absolute estate and had exercised her rights as an absolute owner. In this regard, it would be appropriate to deal with such cases cited by the LRs of the plaintiff, as under:
58.1. In C. Musailamani Mudaliar (supra), a limited estate had been given by one Somasundaram Pillai to his widow Sellathachi through a will.
Sellathachi herself appointed a power of attorney- holder who alienated the subject properties by registered sale deeds.
58.2. In Munni Devi (supra), the original defendant Smt. Bhonri Devi herself was claiming in the suit that the limited right in her favour in the subject property had enlarged into full ownership under section 14(1) of the HSA.
58.3. In Judupy Pardha Sarathy (supra), a limited estate had been given by one Venkata Subba Rao to his widow Veeraraghavamma through a will. Veeraraghavamma in turn executed a will as absolute owner bequeathing the property to the defendant therein.
58.4. In Mangat Mal (supra), the concerned woman Smt. Sukh Devi had received limited interest in the subject property under an arbitrator's award. However, Smt. Sukh Devi herself executed sale CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 72 of 78 deeds in respect of the subject property as the absolute owner.
58.5. In Thota Sesharathamma (supra), one Venkata Subbayya had executed a will giving a limited interest in the subject property to his wife Thota Manikyamma. After his death, Thota Manikyamma in turn executed a registered will bequeathing the properties as an absolute owner. Thota Manikyamma was herself the defendant in the suit and it was her case that the life interest given to her under the will became absolute property.
58.6. In Badri Prasad (supra), the original defendant Smt. Kansho Devi, who had received a limited interest under an arbitrator's award, herself contested the suit claiming that she had absolute right over the subject property.
58.7. In V. Tulasamma (supra), the appellant Smt. V. Tulasamma herself claimed that she had become absolute owner under section 14(1) of the HSA.
58.8. In Bai Vajia (supra), again, the appellant Smt. Bai Vajia herself claimed that she had become absolute owner under section 14(1) of the HSA.
58.9. In Nazar Singh (supra), the limited interest was CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 73 of 78 given by one Gurdial Singh to his wife Smt. Harmel Kaur. Smt. Harmel Kaur herself executed sale deeds selling the subject properties as absolute owner.
58.10. In Gulwant Kaur (supra), the appellant Smt. Gulwant Kaur herself claimed that the limited estate given to her by her husband had become absolute under section 14(1) of the HSA.
58.11. In Ram Kali (supra), the concerned woman Smt. Kamlawati who had received limited interest in the subject property under a will had herself sold the subject property under a registered sale deed as absolute owner.
58.12. In Beni Bai (supra), the concerned woman Smt. Bhagwati Bai who had received limited interest in the subject property under a will had herself executed a gift deed in respect of the subject property as an absolute owner.
58.13. In Jaswant Kaur (supra), the appellant Smt. Jaswant Kaur herself claimed that the limited interest received by her in the subject property under her husband's will had enlarged into absolute property under section 14(1) of HSA. The appellant Smt. Jaswant Kaur herself had disposed of part of the subject property as absolute owner.
CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 74 of 7858.14. In Jagannathan Pillai (supra), the concerned woman had herself transferred the property in favour of an alienee by way of a registered instrument and the property was subsequently retransferred to her by the alienee by a registered document.
58.15. In Raghubar Singh (supra), the facts were that there was a compromise decree under which the woman Mst. Janak Dulari was to remain in ownership and possession.
59. The aforesaid circumstances which were present in aforesaid decisions cited by the plaintiff wherein the concerned woman had herself claimed that the limited interest had blossomed into absolute property or had acted in such manner are completely absent in the present case. The terms of the will in the present case clearly gave only a limited interest to Smt. Harjit Kaur to reside in the house and utilise the properties, moveable and immoveable, and to derive rental income from the house. The will provided only a life interest to Smt. Harjit Kaur and after her lifetime, the defendant no.1 was to become the absolute owner. There is not even an iota of evidence led by the plaintiff to show that the late mother Smt. Harjit Kaur had herself ever claimed that the limited interest given to her had enlarged into absolute property or that she was the absolute owner of the house or that she had ever purported CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 75 of 78 to act as the absolute owner of the house. The defendant no.1 as DW-1 has deposed that prior to the execution of the will, the late father had discussed about the same with his family and informed of his intention that his properties would go to the defendant no.1 with a limited right to residence and utilisation during her lifetime upon the mother. He has further deposed that there was no objection to this by the plaintiff during the lifetime of the father or even after the late father expired during the lifetime of the mother. The plaintiff has herself not even entered the witness box to depose in support of her case and to face cross-examination. An adverse inference would be drawn against the plaintiff. The plaintiff has been unable to show that Smt. Harjit Kaur had ever claimed maintenance against her husband or her husband's estate or had ever claimed to have become the absolute owner of the suit property or had even acted as such. It would be safe to conclude that Smt. Harjit Kaur had herself never questioned the limited life interest which she derived under her husband's will. She had accepted that she only had a life interest and that it was her son, the defendant no.1, who was to be the absolute owner of the properties. The late mother had accepted the intention of the late father as indicated in the will that the properties would be inherited absolutely by the defendant no.1 only. The plaintiff in the present case is essentially claiming through her mother Smt. Harjit Kaur. When Smt. Harjit Kaur herself had accepted the position that she had only a life interest under the will and that her son was to be the CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 76 of 78 absolute owner after her lifetime, then this would also bind the plaintiff and the plaintiff cannot seek to claim that Smt. Harjit Kaur had become an absolute owner.
60. Thus, it is held that Smt. Harjit Kaur only enjoyed a life interest under the will dated 14/06/1983 under section 14(2) of the HSA and this life interest did not enlarge into absolute ownership under section 14(1) of the HSA as claimed by the plaintiff. In the result, both the Issues No.2 and 3 are decided against the plaintiff and in favour of the defendants.
Issue 1. Whether the suit is barred by law of limitation as alleged in the written statement by the defendant No.3? OPD3
61. At the stage of final arguments, no arguments were addressed by the ld. counsels for the defendants including the defendant no.3 on the issue of limitation. The defendants nos. 1 and 2 have also filed written submissions and no submissions have been made therein also on the point of limitation. As such, it is deemed that the defendants are not contesting the issue of limitation. The Issue No.1 is as such decided in favour of the plaintiff and against the defendants.
Issue 4. Whether the defendant No.3 entered into the collaboration agreement dated 05/04/2000 without notice and for valuable consideration and bona fide? If so, its effect. OPD3 CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 77 of 78
62. On the basis of the evidence adduced by the defendants, it is proved that the defendant no.3 had entered into the collaboration agreement dated 05/04/2000 with the defendant no.1 on the basis of the will dated 14/06/1983 and the mutation of the suit property in the name of the defendant no.1, and that the collaboration agreement was for valuable consideration and bona fide and without notice of any competing claims of the plaintiff. In light of the will dated 14/06/1983, which clearly provided that the plaintiff was not to receive anything in inheritance, the defendant no.3 could clearly not have any notice of any claim by the plaintiff. The Issue No.4 is decided accordingly in favour of the defendant no.3.
63. In the result, the suit is dismissed. Parties to bear own costs. Let the decree-sheet be drawn up accordingly.
File be consigned to record room.
Judgment pronounced in open court.
(SATYABRATA PANDA) Additional District Judge-04 Judge Code- DL01057 PHC/New Delhi/28.11.2023 CS No. 59017 of 2016 Baljit Kaur Vs. Ajit Singh Page No. 78 of 78