Delhi High Court
Chanchal Chopra vs Subhash Duggal & Ors. on 20 March, 2020
Equivalent citations: AIRONLINE 2020 DEL 912
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 23rd October, 2019
Decided on: 20th March, 2020
+ CS(OS) 122/2017
CHANCHAL CHOPRA (SINCE DECEASED THRU.LRs)
..... Plaintiff
Represented by: Ms.Manmeet Arora and Ms.Chand
Chopra, Advocates.
versus
SUBHASH DUGGAL & ORS. ..... Defendants
Represented by: Mr.Rajiv Bajaj and Mr.Anshuman
Sood, Advocates for defendant No.1.
Mr.R.K.Sachdeva, Advocate for
defendant No.2.
Ms.Pavitra Kaur, Advocate for
defendant No.3.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
I.A. 2615/2018 (under Order XII Rule 6 CPC-by plaintiff)
1. Plaintiff Chanchal Chopra has filed the suit CS(OS) 122/2017 seeking
partition of the suit property i.e. E-79, Anand Niketan admeasuring 197.50
sq.yds. and declaring the plaintiff to be owner of 1/4 th share of suit property
besides injunction, rendition of accounts, etc. The defendant No.1 and 2 are
the brothers of plaintiff and defendant No.3 her sister. During the pendency
of the present suit plaintiff passed away and thus her legal heirs i.e. her
husband, son and daughter have been impleaded as her legal heirs.
2. Case of the plaintiff in the plaint is that the father of the deceased
plaintiff and defendants, Late Shri Ram Chand Dugal executed his last Will
CS(OS) 122/2017 Page 1 of 22
and testament dated 29th June, 1998 bequeathing his entire estate including
the suit property in favour of his wife Late Smt. Agyawati Duggal
absolutely. Late Shri Ram Chand Duggal passed away on 1 st December,
1999 and thus as per his Will on his death, his entire estate devolved solely
and exclusively on his wife late Smt. Agyawati Duggal. Smt. Agyawati
Duggal had applied for conversion of suit property from leasehold to
freehold on 1st June, 2007 whereafter a conveyance deed dated 8th October,
2007 was executed in respect of the suit property which thereafter stood
mutated in the name of Smt. Agyawati Duggal. Late Smt. Agyawati Duggal
passed away on 16th March, 2012 without leaving behind any Will or
testament and leaving behind 5 legal heirs in Class 1. Further, after the
death of Late Smt. Agyawati Duggal, elder sister of the plaintiff and
defendants Ms. Prem Lata died issueless on 7th August, 2016 without
leaving behind any Will or testament, thus leaving behind the plaintiff and
defendants as her sole legal heirs. Plaintiff thus claims that the plaintiff and
the three defendants are entitled to 1/4th Share in the entire estate of Late
Smt. Agyawati Duggal. It is further stated that the suit property comprises
of three floors and the terrace; the ground floor comprising of three rooms
out of which one room and one bathroom have been rented out and the two
other rooms on the ground floor are lying unused. Defendant No.1 and 2
who are holding all the movable assets of the deceased mother including her
bank lockers, fixed deposit, bank accounts, mutual funds, jewellery, etc., are
also receiving the rental income from the one room rented out on the ground
floor and despite the plaintiff seeking her share the defendants have failed to
give the same.
CS(OS) 122/2017 Page 2 of 22
3. Written statements have been filed to the plaint by defendant No.1, 2
and 3. Defendant No.3 in her written statement has supported the stand of
the plaintiff. However, the defendant No.1 and 2 i.e. the two brothers claim
that the plaintiff and defendant No.3 are not entitled to any share in the suit
property belonging to Late Shri R.C. Duggal for the reason in his life time
Shri R.C. Duggal executed a Will dated 7th May, 1979 whereby he
bequeathed the suit property on the defendant No.1 and 2 and only a life
interest in the suit property was given to Smt. Agyawati Duggal who died on
16th March, 2012 and after her death as per the registered Will dated 7 th
May, 1979 the suit property devolved on defendant No.1 and 2 in equal
shares. It is further stated that the Will dated 29th June, 1998 relied upon by
the plaintiff is a forged and fabricated document and does not bear the
signatures of Late Shri Ram Chand Duggal. The Will has not been filed in
original and therefore is a fabricated document. The Will dated 7th May,
1979 has been signed by the Late father of the parties, which is duly attested
by two attesting witnesses. At the time of execution of the Will dated 7th
May, 1979 father of the plaintiff and defendants was in sound disposing
mind. Plaintiff in the plaint has concealed the material fact of execution of
the Will dated 7th May, 1979. It is further claimed that based on the forged
and fabricated Will dated 29th June, 1998 the plaintiff and defendant No.3
sought mutation and a conveyance deed of the suit property was executed
and thus the mutation dated 27th September, 2000 and conveyance deed
dated 8th October, 2007 cannot be relied upon. The defendant No.1 and 2
have also filed a complaint before the Vice-Chairman, DDA seeking
cancellation of the mutation deed dated 27th September, 2000 and
conveyance deed dated 8th October, 2007. The defendant No.1 and 2 have
CS(OS) 122/2017 Page 3 of 22
thus denied that Late Shri Ram Chand Duggal left a Will and testament
dated 29th June, 1998 in favour of his wife Late Smt. Agyawati Duggal, but
admit the execution of the Will dated 7 th may, 1979 whereby life interest in
the suit property was created in favour of Smt. Agyawati Duggal.
4. By this application under Order XII Rule 6 CPC plaintiff seeks a
judgment on admission. Case of the plaintiff is that the defendant No.3
having admitted the stand of the plaintiff and herself claiming 1/4 th share,
the plaintiff is entitled to a judgment qua defendant No.3. As against
defendant No.1 and 2, it is claimed that even as per the case of defendant
No.1 and 2 Late father of the parties had left a Will dated 7th May, 1979, and
based on the Will dated 7th May, 1979 the defendant No.1 and 2 are
admitting the following facts thereby plaintiff being entitled to a decree even
against defendant no. 1 and 2:
i) That the conveyance deed dated 8th October, 2007 was executed
in the name of Late Ms. Agyawati Duggal with the consent of
all legal heirs of Late Mr. Ram Chand Duggal and the suit
property stands mutated in her name ever since.
ii) That at the time of execution of the conveyance deed dated 8 th
October, 2007 the defendant No.1 and 2 furnished NOCs to
DDA in favour of Late Ms. Agyawati Duggal.
iii) That Late Ms. Agyawati Duggal died intestate.
5. Plaintiff thus claims that based on the Will dated 7th may 1979
whereby Late Sh. Ram Chand Duggal created life interest in favour of Late
Smt. Agyawati Duggal and admission of defendant No.1 and 2 who have
admitted that conveyance deed dated 8th October, 2007 stood executed in
favour of Late Smt. Agyawati Duggal and she died intestate, the law of
CS(OS) 122/2017 Page 4 of 22
intestate succession shall automatically apply and each of her legal heir will
be entitled to 1/5th share and on the demise of the third sister late Ms. Prem
Lata, the plaintiff and the three defendants would be entitled to 1/4th share
each in the suit property.
6. The only defense taken by defendant No.1 and 2 to oppose the instant
suit is to allege that the Will dated 7th May, 1979 created only life interest in
favour of Late Smt. Agyawati Duggal and consequently no interest in the
suit property was left with Late Smt. Agyawati Duggal on her death so that
the same could devolve intestate and must only devolve on the basis of the
Will dated 7th May, 1979. Learned counsel for the plaintiff states that the
defence taken is legally untenable and a moonshine defense for the reason
the Will dated 7th May, 1979 relied upon by the defendants stood revoked by
Late Shri Ram Chand Duggal by the registered Will dated 29 th June, 1998
and the subsequent conveyance deed dated 8th July, 2010 and the
conveyance deed dated 8th July, 2010 having been admitted by defendant
No.1 and 2 thereby making it immaterial as to which Will of Late Shri Ram
Chand Duggal is valid.
7. It is further stated that as long as Late Smt. Agyawati Duggal is the
admitted owner of the suit property by virtue of Section 14 of the Hindu
Succession Act, 1956 she acquired absolute interest in the suit property and
since she did not leave behind any Will, the suit property must devolve on
the basis of intestate succession on the legal heirs. It is well settled that
Section 14 of the Hindu Succession Act, 1956 creates absolute and full
ownership rights in favour of female Hindus and wherever there is any pre-
existing right of a female Hindu in a property, Sub-Section 2 of Section 14
of the Hindu Succession Act, 1956 does not apply. Therefore, even if the
CS(OS) 122/2017 Page 5 of 22
defendant No.1 and 2 are able to prove the Will dated 7 th May, 1979 as the
last valid Will of Late Shri Ram Chand Duggal they will not succeed in
defeating the rights of the plaintiff and the counter claimant, defendant No.3.
8. In reply to this application case of defendant No.1 and 2 is that
admittedly Late Shri R.C. Duggal was the absolute owner of the suit
property. However they plead that during his life time he executed a Will
dated 7th May, 1979 thereby bequeathing the suit property to his two sons
i.e. defendant No.1 and 2 equally and only a life time interest in the suit
property was given to Smt. Agyawati Duggal who died on 16 th March, 2012
and after her death as per the registered Will dated 7 th May, 1979 the suit
property devolved on defendant No.1 and 2.
9. Thus, the issues in the present application are that based on the
admission of the defendant No.1 and 2 in respect of the Will dated 7th May,
1979 whereby a life interest was created in favour of Smt. Agyawati Duggal
whether by virtue of Hindu Succession Act, 1956 Smt. Agyawati Duggal
became the absolute owner of the suit property and secondly, whether by
virtue of conveyance deed having been executed in favour of Smt. Agyawati
Duggal she became the absolute owner of the suit property thereby resulting
in the devolution of the suit property by intestate succession on her legal
heirs on her death.
10. Supreme Court in the decision reported as (1977) 3 SCC 99
V.Tulasamma Vs. Sesha Reddy (Dead) by L.Rs summarized the rights of a
Hindu woman to maintenance based on the authorities and the Shastric
Hindu Law on the subject and also interpreted Section 14(1) and 14(2) of the
Hindu Succession Act as under:-
CS(OS) 122/2017 Page 6 of 22
"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;
(2) though the widow's right to maintenance is not a
right, to property but it is undoubtedly a pre-existing
right in property i.e. it is a jus ad rem not jus in
rem and it can be enforced by the widow who can get a
charge created for her maintenance on the property
either by an agreement or by obtaining a decree from
the civil court;
(3) that the right of maintenance is a matter of moment
and is of such importance that even if the joint property
is sold and the purchaser has notice of the widow's
right to maintenance, the purchaser is legally bound to
provide for her maintenance;
(4) that the right to maintenance is undoubtedly a pre-
existing right which existed in the Hindu law long
before the passing of the Act of 1937 or the Act of
1946, and is, therefore, a pre-existing right;
(5) that the right to maintenance flows from the social
and temporal relationship between the husband and
the wife by virtue of which the wife becomes a sort of
CS(OS) 122/2017 Page 7 of 22
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.
xxx
xxx
62. 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 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.
CS(OS) 122/2017 Page 8 of 22
(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 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.
CS(OS) 122/2017 Page 9 of 22
(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 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."
11. Following the decision in V.Tulasamma (supra) after discussing
various other decisions on the issue, Supreme Court in 2016 (2) SCC 56
Jupudy Pardha Sarathy Vs. Pentapati Rama Krishna & Ors. dealing with
the right of property of a woman under Section 14 of the Hindu Succession
Act held:
CS(OS) 122/2017 Page 10 of 22
"2. The only question that needs consideration in this appeal
is as to whether the High Court is correct in law in
interpreting the provisions of Section 14 of the Hindu
Succession Act, 1956 (for short "the Act") in arriving at a
conclusion that the widow of the deceased P. Venkata Subba
Rao acquired an absolute interest in the property by the
operation of Section 14 of the Act.
xxxx
xxxx
8. Before we decide the question involved in this appeal we
would like to reproduce the contents of the will (Ext. A-1)
which is as under:
"I, Pularvathi Venkata Subba Rao, s/o late
Pularvathy Venkamma Vysya, Business, r/o
Rajahmundhry, have executed the will dated 24-8-1920
with good consciousness and wisdom.
I am now approximately 53 years. Now I have less
physical strength and consequently I may not survive
for longer period, hence I have proposed to give all my
properties both movable and immovable mentioned in
the schedule below by way of this will.
My first wife died issueless. My second wife got two
sons by name Manikyaro and Narasimha Rao and a
daughter by name Nagarathnamma. My second wife
also died. Thereafter I married Veeraraghavamma my
third wife and she is alive. She has not begotten any
children. I have house property bearing Municipal D.
No. 6/875, another house bearing D. No. 6/876 and
also 5 shop rooms abutting to them with vacant house
site covered by D. No. 6/870 in Innespeta,
Rajahmundry Village, Rajahmundry Sub-Registry, E.G.
Distt. I have wetland of extent Ac.15.17 cents in
Rustumbada Village, Naraspuram Sub-Registry,
Naraspuram Taluk. The said landed property was in
the name of my second wife and after her lifetime my
two sons mentioned above got the same mutated it in
their names.
CS(OS) 122/2017 Page 11 of 22
I have a policy bearing No. 23232 in Oriental Life
Insurance Company and I have to receive monies from
the said policy and also silver, gold, brass articles
household utensils Beeruva, furniture, iron safe, etc., I
have made the following dispositions which are to take
place after my lifetime.
My third wife Veeraraghavamma shall enjoy for life
the tiled house with site and compound wall and with
half right in the well covered by Municipal D. No.
6/875, Rajahmundry and after lifetime of my wife my
second son Narasimha Rao shall have the property
with absolute rights such as gift, sale, etc. My second
son Narasimha Rao shall have absolute rights such as
gift and sale in respect of the tiled house bearing D.
No. 6/876 and the 5 shop rooms covered by D. No.
6/870 and the site abutting the above two properties
with Chavidi and one big latrine out of the two and
that my wife Veeraraghavamma shall enjoy for life the
small latrine covered by D. No. 6/870 and after her
lifetime my son Narasimha Rao shall have the property
with absolute right. The said Veeraraghavamma is
entitled to fetch water from the well situated in
backyard of house bearing D. No. 6/870. My eldest son
Maniyarao shall have absolute rights such as gift and
sale, etc., in respect of Ac.15.17 cents of Zeroyiti
wetland of Rustumbada Village Narasapuram Taluk
and my eldest son Maniyarao shall pay Rs 650 which I
am liable to pay to her and thus either
Nagarathnamma or any one has got no right in the
said property.
The amount receivable from the Insurance
Company referred above shall be recovered and my
two sons, daughter and my wife, all the four shall
share the same equally and that the ornaments lying
with them shall take the same absolutely and that one
shall not claim or demand for any owelties against
another.
CS(OS) 122/2017 Page 12 of 22
This will I have executed with full and good
consciousness and the same shall come into force after
my lifetime. The properties mentioned in this will are
all my self-acquired properties and I did not get any
ancestral properties.
I reserve my right to change the contents of the will
during my lifetime.
Signed Pularvati Venkata Subba Rao
Attesting witnesses
Modali Subbarayudu
Yendi Surayya
Scribed by Pularvati Venkata Subba Rao
with his own handwriting
The contents of the said will shall come into force
after my lifetime.
Signed by Pularvati Venkata Subbarao"
xxxx
xxxx
21. A three-Judge Bench of this Court
in Munnalal v. Rajkumar [Munnalal v. Rajkumar, AIR 1962
SC 1493] , while interpreting the provisions of Section 14(1) of
the Act observed: (AIR pp. 1499-1500, para 16)
"16. By Section 14(1) the legislature sought to convert
the interest of a Hindu female which under the Shastric
Hindu Law would have been regarded as a limited
interest into an absolute interest and by the Explanation
thereto gave to the expression „property‟ the widest
connotation. The expression includes property acquired
by a Hindu female 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,
CS(OS) 122/2017 Page 13 of 22
or in any other manner whatsoever. By Section 14(1)
manifestly it is intended to convert the interest which a
Hindu female has in property however restricted the
nature of that interest under the Shastric Hindu Law may
be into absolute estate. Pratapmull case [Pratapmull
Agarwalla v. Dhanabati Bibi, 1935 SCC OnLine PC 55 :
(1935-36) 63 IA 33] undoubtedly laid down that till
actual division of the share declared in her favour by a
preliminary decree for partition of the joint family estate
a Hindu wife or mother, was not recognised as owner, but
that rule cannot in our judgment apply after the
enactment of the Hindu Succession Act. The Act is a
codifying enactment, and has made far-reaching changes
in the structure of the Hindu law of inheritance, and
succession. The Act confers upon Hindu females full
rights of inheritance, and sweeps away the traditional
limitations on her powers of dispositions which were
regarded under the Hindu law as inherent in her estate.
She is under the Act regarded as a fresh stock of descent
in respect of property possessed by her at the time of her
death. It is true that under the Shastric Hindu Law, the
share given to a Hindu widow on partition between her
sons or her grandsons was in lieu of her right to
maintenance. She was not entitled to claim partition. But
the legislature by enacting the Hindu Women's Rights to
Property Act, 1937 made a significant departure in that
branch of the law; the Act gave a Hindu widow the same
interest in the property which her husband had at the time
of his death, and if the estate was partitioned she became
owner in severalty of her share, subject of course to the
restrictions on disposition and the peculiar rule of
extinction of the estate on death actual or civil. It cannot
be assumed having regard to this development that in
enacting Section 14 of the Hindu Succession Act, the
legislature merely intended to declare the rule enunciated
by the Privy Council in Pratapmull case. Section 4 of the
Act gives an overriding effect to the provisions of the
Act."
CS(OS) 122/2017 Page 14 of 22
xxxx
xxxx
22. Reference may also be made to a three-Judge Bench
decision of this Court in Nirmal Chand v. Vidya Wanti [Nirmal
Chand v. Vidya Wanti, (1969) 3 SCC 628] . In that case, by a
registered document of partition, the related right was given to
the widow -- the user of the land with the condition that she
will have no right to alienate in any manner. This Court
holding that the case falls under Section 14(1) of the Act held
as under: (SCC p. 631, para 6)
"6. If Subhrai Bai was entitled to a share in her
husband's properties then the suit properties must be
held to have been allotted to her in accordance with
law. As the law then stood she had only a life interest
in the properties taken by her. Therefore the recital in
the deed in question that she would have only a life
interest in the properties allotted to her share is
merely recording the true legal position. Hence it is
not possible to conclude that the properties in
question were given to her subject to the condition of
her enjoying it for a lifetime. Therefore the trial court
as well as the first appellate court were right in
holding that the facts of the case do not fall within
Section 14(2) of the Hindu Succession Act, 1956.
Consequently Subhrai Bai must be held to have had
an absolute right in the suit properties, in view of
Section 14(1) of the Hindu Succession Act."
23. In Thota Sesharathamma v. Thota Manikyamma [Thota
Sesharathamma v. Thota Manikyamma, (1991) 4 SCC 312],
life estate was granted to a Hindu women by a will as a limited
owner and the grant was in recognition of pre-existing right.
Following the ratio decided in Tulasamma case [V.
Tulasamma v. Sesha Reddy, (1977) 3 SCC 99 : AIR 1977 SC
CS(OS) 122/2017 Page 15 of 22
1944] , Their Lordships held that the decision
in Karmi [Karmi v. Amru, (1972) 4 SCC 86 : AIR 1971 SC
745] cannot be considered as an authority on the ambit of
Sections 14(1) and (2) of the Act. The Court held: (Thota
Sesharathamma case [Thota Sesharathamma v. Thota
Manikyamma, (1991) 4 SCC 312] , SCC p. 321, paras 9-10)
"9. It was clearly held in the above case that Section
14(2) of the Act is in the nature of a proviso or an
exception to Section 14(1) and comes 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 to the
property. The Bench consisted of Hon'ble J.C. Shah, V.
Ramaswamy and A.N. Grover, JJ.
10. The case of Karmi v. Amru [Karmi v. Amru, (1972) 4 SCC 86 : AIR 1971 SC 745] on which a reliance has now been placed by the learned counsel for the appellant and petitioners was also decided by a Bench of three Judges Hon'ble J.C. Shah, K.S. Hegde and A.N. Grover, JJ. It may be noted that two Hon'ble Judges, namely, J.C. Shah and A.N. Grover were common to both the cases.
In Karmi v. Amru [Karmi v. Amru, (1972) 4 SCC 86 :
AIR 1971 SC 745] , one Jaimal died in 1938 leaving his wife Nihali. His son Ditta predeceased him. Appellant in the above case was the daughter of Ditta and the respondents were collaterals of Jaimal. Jaimal first executed a will dated 18-12-1935 and by a subsequent will dated 13-11-1937 revoked the first will. By the second will a life estate was given to Nihali and thereafter the property was made to devolve on Bhagtu and Amru collaterals. On the death of Jaimal in 1938, properties were mutated in the name of Nihali. Nihali died in 1960/1961. The appellant Mst Karmi claimed right on the basis of a will dated 25-4-1958 executed by Nihali in her favour. It was held that the CS(OS) 122/2017 Page 16 of 22 life estate given to a widow under the will of her husband cannot become an absolute estate under the provisions of the Hindu Succession Act. Thereafter, the appellant cannot claim title to the properties on the basis of the will executed by the widow Nihali in her favour. It is a short judgment without adverting to any provisions of Section 14(1) or 14(2) of the Act. The judgment neither makes any mention of any argument raised in this regard nor is there any mention of the earlier decision in Badri Prasad v. Kanso Devi [Badri Prasad v. Kanso Devi, (1969) 2 SCC 586] . The decision in Karmi [Karmi v. Amru, (1972) 4 SCC 86 :
AIR 1971 SC 745] cannot be considered as an authority on the ambit and scope of Sections 14(1) and (2) of the Act."
24. Reference may also be made to the decision of a three-
Judge Bench of this Court in Shakuntla Devi v. Kamla [Shakuntla Devi v. Kamla, (2005) 5 SCC 390] , where a Hindu wife was bequeathed life interest for maintenance by will with the condition that she would not have power to alienate the same in any manner. As per the will, after death of the wife, the property was to revert back to his daughter as an absolute owner. On this fact Their Lordships following the ratio decided in Tulasamma case [V. Tulasamma v. Sesha Reddy, (1977) 3 SCC 99 : AIR 1977 SC 1944] held that by virtue of Section 14(1) a limited right given to the wife under the will got enlarged to an absolute right in the suit property.
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27. A similar question arose for consideration before this Court in Subhan Rao case [Subhan Rao v. Parvathi Bai, (2010) 10 SCC 235 : (2010) 4 SCC (Civ) 141] , where a portion of the suit property was given to the plaintiff wife for her maintenance subject to restriction that she will not CS(OS) 122/2017 Page 17 of 22 alienate the land which was given to her for her maintenance. The question arose as to whether by virtue of Section 14(1) of the Act she became the owner of the suit property. Considering all the earlier decisions of this Court, Their Lordships held that by virtue of Section 14(1) of the Act, the pre-existing right in lieu of her right to maintenance transformed into absolute estate."
12. Learned counsel for the defendants has relied upon the decision of Supreme Court in (2018) 12 SCC 1 Ranvir Dewan Vs. Rashmi Khanna & Anr. In this decision Supreme Court relying on its earlier decision in Tulasamma (supra) on facts held that the case fell under Section 14(2) of the Act as the testator therein had bestowed on Mrs. Pritam other properties for maintenance, thus in the suit property, she only had a life interest. It was held:
"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 would apply.
42. A fortiorari, plaintiff No.2, late Mrs.Pritam received only "life interest" in the suit house by the Will dated 24.06.1986 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 following factual reasons arising in the case.
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.CS(OS) 122/2017 Page 18 of 22
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 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 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 CS(OS) 122/2017 Page 19 of 22 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 12.09.2016.
42.7. Seventh, as mentioned above, the facts of the case on hand and the one involved in the case of Sadhu Singh (supra) are found to be somewhat similar. The facts of the case of Sadhu Singh were that the husband executed a Will in favour of his wife of his self-acquired property in 1968. Though he gave to 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 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 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‟s case (supra) and, therefore, this case is fully covered by the law laid down in Sadhu Singh's case".
13. In Jupudy Pardha Sarthy (supra) Supreme Court discussed the ratio in the earlier decisions rendered after V.Tulasamma (supra) i.e. karmi, Sadhu Singh, and Shiv Dev Kaur, and came to the conclusion that when a woman acquires right in the property by virtue of her pre-existing right of maintenance etc. the same would fall within sub-Section (1) of Section 14 of the Act and thereby making her an absolute owner of the property. The facts in the present case are similar to that in the case of Jupudy Pardha Sarthy CS(OS) 122/2017 Page 20 of 22 (supra) and thus the ratio of the said decision wherein the decision in V.Tulasamma (supra) was followed would squarely apply to this case. Even in the decision in Ranvir Dewan (supra) relied upon by learned counsel for the defendant No.1 and 2, Supreme Court noted that the widow therein had been bestowed other properties which would have taken care of the maintenance and thus the life interest created in the suit house by the Will dated 24th June, 1986 by her Late husband Ranvir Dewan (supra) did not ripen into an absolute interest and the said interest would fall under Section 14(2) of the Act.
14. Considering the fact that in the present case, the life interest so created in the Will dated 7th May, 1979 which is admitted by the defendant No. 1 and 2 was in the nature of providing maintenance to Smt. Agyawati Duggal by her Late husband, the testator, the bequeath fell under Section 14(1) of the Act, thereby creating an absolute interest in favour of Smt. Agyawati Duggal.
15. There is yet another reason to come to the conclusion that Smt. Agyawati Duggal was the absolute owner of the suit property, for the reason the conveyance deed dated 8th July, 2010 was executed in her favour pursuant to the no objection given by the parties which fact is admitted by the defendant No.1 and 2. By virtue of the conveyance deed in her favour, Smt. Agyawati Duggal became the absolute owner of the suit property. Defendant Nos. 1 and 2 have not sought cancellation of the conveyance deed in favour of Smt. Agyawati Duggal.
16. Smt. Agyawati Duggal undisputedly has died intestate and no Will has been executed by her in favour of the defendant No. 1. One of the daughter of Smt. Agyawati Duggal having passed away without leaving any CS(OS) 122/2017 Page 21 of 22 legal heir, the suit property would devolve on the plaintiff and the three defendants in equal share. Consequently, the plaintiff is entitled to a decree on admission of the defendant Nos. 1 and 2 as also of defendant No. 3, who has supported the case of the plaintiff and it is declared that the plaintiff is entitled to 1/4th share in the suit property. Consequently, a decree is passed in favour of the plaintiff and against defendants, defining her share as 1/4 th in the suit property. The suit property would also devolve on the three defendants in 1/4th share each.
17. Application is disposed of.
CS(OS) 122/2017
1. After this Court had reserved judgment in IA 2615/2018, it was informed on 24th February, 2020 that defendant No. 2 has passed away. However, based on the arguments of the parties addressed when defendant No. 2 was alive, IA 2615/2018 under Order XII Rule 6 CPC by the plaintiff having been allowed, the suit and the counter-claim are required to be decreed. Consequently, the date of 28th April, 2020 listed before this Court in suit and counter-claim is cancelled.
2. In view of the decision in IA 2615/2018, suit is decreed in favour of the plaintiff decreeing her share as 1/4th in the suit property.
CC 16/2019Counter claim is also decreed in favour of the defendant No. 3, declaring that she is entitled to 1/4th share in the suit property.
(MUKTA GUPTA) JUDGE MARCH 20, 2020 'ga' CS(OS) 122/2017 Page 22 of 22