Allahabad High Court
Kamlesh Shukla And Others vs Smt. Annapurna Devi And Anr on 17 February, 2022
Author: Subhash Chandra Sharma
Bench: Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Case :- SECOND APPEAL No. - 940 of 1997 Appellant :- Kamlesh Shukla And Others Respondent :- Smt. Annapurna Devi And Anr Counsel for Appellant :- S.D. Kautilya,Dinesh Dwivedi Counsel for Respondent :- R.P. Shastri,H.P. Mishra,Raghvendra P. Shastri,Vivek Saran Hon'ble Subhash Chandra Sharma,J.
1. Heard Sri S.D. Kautilya, learned counsel for the appellants and Sri H.P. Mishra, learned counsel for the respondents.
2. This second appeal arises from the judgment and decree dated 12.09.1997 passed in First Appeal No.12/1993 (Smt. Annapurna Devi and others vs. Pt. Ram Shankar Shukla substituted by his legal heirs) by learned First Additional District Judge, Pilibhit by which learned court has allowed the appeal and set aside the judgment and decree dated 28.11.1981 passed by Civil Judge, Pilibhit in O.S. No.49/2007 (Ram Shankar Shukla Vs. Smt. Annapurna Devi and Harish Chandra Bajpai) holding that Smt. Ramshri Kunwar (mother of Smt. Annapurna Devi) became full owner of the property in suit by virtue of Section 14 (1) of the Hindu Succession Act and not a licencee.
3. The facts giving rise to the present appeal are in brief that Pt. Jagan Mohan Shukla was owner of movable and immovable property. He had two wives, one Smt. Ramshri Kunwar and other Smt. Saraswati Devi. Smt. Annapurna Devi was daughter of Smt. Ramshri Kunwar and Pt. Ram Shankar Shukla was son of Smt. Saraswati Kunwar. Sri Ram Shankar Shukla was represented by his son Kamlesh Kumar, daughter Smt. Indra Prakashini and Smt. Raj Mohini. During pendency of this appeal, Kamlesh Shukla also died and represented through his legal representatives. Likewise respondent Smt. Annapurna Devi died and represented through her legal representatives.
4. Pt. Jagan Mohan Shukla executed a family settlement deed on 27.05.1940 with a view to maintain peace and harmony in the family between Sri Ram Shankar Shukla and Smt. Ramshri Kunwar his step mother. He made arrangement of his entire property and gave life estate to his wife Smt. Ram Shri Kunwar in two houses as described in para no.4 A of the plaint and granted absolute rights of ownership of one shop as mentioned in para no.4C, half share in two grooves as mentioned in para no.4B of the plaint. He reserved for his own use, the property mentioned in para no.5 for lifetime and after his death, the plaintiff/Ram Shankar Shukla was to become its absolute owner. The settlement deed dated 27.05.1940 was acted upon and Smt. Ramshri Kunwar was given possession accordingly. She sold some of the property given to her by the deed dated 27.05.1940 and continued to occupy the houses mentioned in para no.4A of the plaint till she died on 16.04.1977 and then property was occupied by her daughter Smt. Annapurna Devi and her husband. Since Smt. Ram Shri Kunwar was given life interest in the property (houses) and daughter of Smt. Ram Shri Kunwar with her husband was living in the houses even after the death of Smt. Ram Shri Kunwar, therefore, they were asked to vacate the property but on their failure, this suit was filed by the plaintiff Ram Shankar Shukla which was decreed by the learned trial court holding that since Smt. Ram Shri Kunwar was given life interest in the disputed houses by way of gift-cum-will-cum family settlement by Pt. Jagan Mohan Shukla, therefore, the case was covered by sub Section 2 of Section 14 of the Hindu Succession Act.
5. Being aggrieved with this judgment and decree Smt. Annapurna Devi preferred first appeal before the District Judge which was heard and decided by learned First Additional District Judge, Pilibhit on 12.09.1997 by which learned court allowed the appeal and held that Smt. Ram Shri Kunwar became the owner of the property in view of Section 14 of the Hindu Succession Act and she was not a licencee. Being aggrieved with this judgment and decree this second appeal has been preferred by legal heirs of Ram Shankar Shukla against Smt. Annapurna Devi (died during the pendency of appeal) and her husband Harish Chandra Bajpai before this Court.
6. Heard learned counsel for the parties and perused the record.
7. In this appeal two substantial questions of law were formulated.
I. Whether the Gift-cum-will-cum-family settlement dated 27.5.1940 executed by Pt. Jagan Mohan Shukla is not covered by the provisions of Section 14(2) of the Act of 1956.
II. Whether the defendants/opposite parties have any rights on the property in dispute by virtue of the settlement dated 27.05.1940.
8. Learned counsel for the appellants has argued that in the present situation of the case sub-section (2) of Section 14 of Hindu Succession Act will apply because property was not given to Smt. Ram Shri Kunwar by her husband Pt. Jagan Mohan Shukla for her maintenance with limited interest but she was admitted to the property as licencee. The family settlement by which property was devised will not come within the ambit of sub-section (1) of Section 14 of the Act. Nowhere the word maintenance gets mention in the deed of family settlement. In this view, the judgment and decree passed by learned first appellate court is to be set aside and appeal be allowed.
9. Per contra, learned counsel for the respondents urged that the reasoning as given by the learned counsel for the appellants does not get support from the language as used in sub-section (1) & (2) of Section 14 of Hindu Succession Act. It is against the intention of the legislature. By passing the act the legislature intended to confer full rights of ownership in the property possessed by a female Hindu either before or after the commencement of the Act. As per interpretation by Hon'ble the Supreme Court, if pre-existing right of a female is recognized in conferring rights regarding some property then sub-section (1) of Section 14 will apply. On the contrary if new right is created only then sub-section (2) may apply. In the present case respondent Smt. Annapurna Devi is daughter of Smt. Ram Shri Kunwar wife of Jagan Mohan Shukla who was entitled for her residence and maintenance from her husband and that right was recognized by devising the property to her through family settlement, therefore, sub-section (1) of Section 14 will apply but not sub-section (2). The learned first appellate court has passed the judgment and decree in question in this appeal after considering all these facts in the light of law as laid down by Hon'ble the Supreme Court and as provided under Section 14 of the Hindu Succession Act. There is no any illegality or infirmity in the impugned judgment but this appeal being forceless, is liable to be dismissed with cost. Learned counsel for the respondent relied on the cases of V. Tulasamma & othes Vs. V. Shehsa Reddy, AIR 1977 SC 1944 and Gullapalli Krishna Das Vs. Vishnumolakala Venkaiah & others, AIR 1978 SC 361.
10. To decide the question, as to whether property in dispute which was devised by Pt. Jagan Mohan Shukla in favour of Smt. Ram Shri Kunwar through family settlement creating life interest in it, confers full right of ownership on her by virtue of sub-section (1) of Section 14 of the Hindu Succession Act or it is covered with the provisions of sub-section (2) of Section 14 of the Act, it is necessary to go through the provisions as contained in Section 14 of the Act and also the various judicial pronouncements in this regard.
11. Section 14 of Hindu Succession Act, 1956 provides that :-
"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 inheri- tance or device, 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 what- ever, and also any such property held by her as stridharas immediately before the commence- ment of this Act.
(2) Nothing contained in sub-section (1) shah apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
12. Prior to the enactment of Section 14, the Hindu Law restricted the nature of the interest of Hindu female in property acquired by her. The legislature by enacting sub-section (1) of the Section 14 intended to convert the interest which a Hindu female has in property, however, restricted the nature of that interest under the Shastri Hindu Law, into absolute interest. The Hindu Succession Act, 1956 had made far reaching changes in this regard. The Act confers upon the Hindu female, full rights of inheritance and sweeps away the traditional limitations on her powers of disposition.
13. Section 14 (1) is wide in its scope and ambit. It provides that 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. The words 'any property' are large enough to cover any and every kind of property but in order to make it comprehensive, there is an explanation. Now, whatever be the kind of property movable or immovable and whichever be the mode of acquisition, it would be covered by sub-section (1) of Section 14, the object of legislature being to wipe out the disabilities from which a Hindu female suffered in regard to ownership of property under the old law.
14. The provision under sub-section (2) of Section 14 is more in the nature of a proviso or exception to sub-section (1). It cannot be interpreted in a manner to deprive a Hindu female of the protection sought to be given to her by sub-section (1). Sub-section (2) must, therefore, be read in the context of sub-section (1) so as to leave as large a scope for operation as possible to sub-section (1). It 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.
15. This line of approach in the construction of sub-section (2) of section 14 is amply borne out by the trend of judicial decisions of Hon'ble the Apex Court. In this connection reference be made to the decision in the case of Badri Parasad vs. Smt. Kanso Devi AIR 1970 SC 1963. The facts in that case were that one Gajju Mal owning self- acquired properties died in 1947 leaving five sons and a widow. On August 5, 1950, one Tulsi Ram Seth was appointed by the parties as an arbitrator for resolving certain dif- ferences which had arisen relating to partition of the properties left by Gujju Mal. The arbitrator made his award on December 31, 1950 and under clause 6 of the award, the 'widow was awarded certain properties and it was expressly stated in the award that she would have a widow's estate in the properties awarded to her. While the widow was in possession of the properties, the Act came into force and the question arose whether on the coming into force of the Act, she became full owner of the properties under sub- section (1) or her estate in the properties remained a restricted one under sub-section (2) of section 14. It was held that although the award gave a restricted estate to the widow in the properties allotted to her, it was sub- section (1) which applied and not sub-section (2), because inter alia the properties given to her under the award were on the basis of a pre-existing right which she had as an heir of her husband under the Hindu Women's Right to Property Act, 1937 and not as a new grant made for the first time. Sub-section (2) can come into operation only if acquisition in any of the methods enacted 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 was further held that the mere fact that the partition was by means of an award would not bring the matter within Section 14(2) of the Act, because the interest given to the widow was on the basis of pre-existing right and not a new grant for the first time. So also in Nirmal Chand v. Vidya Wanti (dead) by her legal representatives, C.A. No.609 of 1965, D/-21-1 1969 (SC) there was a regular partition deed made on December 3, 1945 between Amin Chand, a coparcener and Subhrai Bai, the widow of a deceased coparcener, under which a certain property was allotted to Subhrai Bai and it was specifically provided in the partition deed that Subhrai Bai would be entitled only to the user of the property and she would have no right to alienate it in any manner but would only have a life interest. Subhrai Bai died in 1957 subsequent to the coming into force of the Act after making a will bequeathing the property in favour of her daughter Vidyawati. The right of Subhrai Bai to bequeath the property by will was challenged on the ground that she had only a limited interest in the property and her case was covered by sub-section (2) and not sub-section (1). This contention was negatived and it was held that though it was true that the instrument of partition prescribed only a limited interest for Subhrai Bai in the property, that was in recognition of the legal position which then prevailed and hence it did not bring her case within the exception contained in sub-section (2) of section 14. It was observed:
"If Subhrai Bai was entitled to a share in her husband's properties then the suit proper- ties 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 con- clude that the properties in question were given to her subject to the condition of her enjoying it for her life time. 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 S. 14 (2) of the Hindu Succession Act, 1956."
16. It will be seen from these observations that even though the property was acquired by Subhrai Bai under the instrument of partition, which gave only a limited interest to her in the property, the Court held. that the case fell within sub- section (1) and not sub-section (2). The reason obviously was that the property was 'given to Subhrai Bai in virtue of a pre-existing right inhering in her and when the instrument of partition provided that she would only have a limited interest in the property, it merely provided for something which even otherwise would have been the legal position under the law as it then stood. It is only when property is acquired by a Hindu female as a new grant for the first time and the instrument, decree; order or award giving the property prescribes the terms on which it is to be held by the Hindu female, namely, as a restricted owner, that sub- section (2) comes into play and excludes the applicability of sub-section (1).
17. The object of sub-section (2), as pointed out by Hon'ble the Apex Court in Badri Prasad's case (supra) while quoting with approval the observations made by the Madras High Court in Rangaswami Naicker v. Chinnammal, AIR 1964 Mad 387, is "only to remove the disability of women imposed by law and not to interfere with contracts, grants or decree etc. by virtue of which a woman's right was restricted" and, there- fore, where property is acquired by a Hindu female under the instrument in virtue of a pre-existing right, such as a right to obtain property on partition or a right to maintenance and under the law as it stood prior to the enactment of the Act, she would have no more than limit- ed interest in the property, a provision in the instrument giving her limited interest in the property would be merely by way of record or recognition of the true legal position and the restriction on her interest being a "disability imposed by law" would be wiped out and her limited interest would be enlarged under sub-section (1). But where property is acquired by a Hindu female under an instrument for the first time without any pre-existing right solely by virtue of the instrument, she must hold it on the terms on which it is given to her and if what is given to her is a restricted estate, it would not be enlarged by reason of sub-section (2).
18. In the light of the above decisions of the Hon'ble Apex Court the following principles appear to be clear:
(1) that the provisions of Section 14, of the 1956 Act must be liberally construed in order to advance the object of the Act which is to enlarge the limited interest possessed by a Hindu widow which was in consonance with the changing temper of the times;
(2) it is manifestly clear that sub-s. (2) of Section 14 does not refer to any transfer which merely recognises a pre-existing right without creating or conferring a new title on the widow. This was clearly held by this Court in Badri Parshad's case (supra).
(3) that the Act of 1956 has made revolutionary and far-reaching changes in the Hindu society and every attempt should be made to carry out the. spirit of the Act which has undoubtedly supplied a long felt need and tried to do away with the invidious distinction between a Hindu male and female in matters of intestate succession;
(4) that sub-s. (2) of Section 14 is merely a proviso to. subs. (1) of Section 14 and has to be interpreted as a proviso and not-in a manner so' as to destroy the effect of the main provision.
19. The Hon'ble Apex Court in the case of V. Tulasamma & othes Vs. V. Shehsa Reddy, AIR 1977 SC 1944 has considered the aforesaid cases and discussed the legal position elaborately relating to sub-section (2) of Section 14 and held in Para No.40 as under :-
"Finally, we cannot overlook the scope and extent of a proviso. There can be no doubt that sub-s. (2) of Section 14 is. clearly a proviso to Section 14 (1) and this has been so held by this Court in Badri Prasad's case (supra). It is well settled that a provision in the nature of a proviso merely carves out an exception to the main provision and cannot be interpreted in a manner so as to. destroy the effect of the main provision or to render the same nugatory. If we accept the argument of the respondent that sub-s. (2 ) to Section 14 would include even a property which has been acquired by a Hindu female at a partition or in lieu of maintenance then a substantial part of the Explanation would be completely set at naught which could never be the intention of the proviso Thus we are clearly of the opinion that sub-s. (2) of of the proviso should be interpreted in such a way so as not to substantially erode Section 14 (1) or the Explanation thereto. In the present case we feel that the proviso has carved out completely a separate. field and before it can apply three conditions must exist:
(i) that the property must have been acquired by way of gift, will, instrument, decree, order of the Court or by an award;
(ii) that any of these documents executed in favour of a Hindu female must prescribe a restricted estate in such property; and
(iii) that the instrument must create or confer a new right, title or interest on the Hindu female and not merely recognise or give effect to a pre-existing right which the female Hindu already possessed."
20. In the case of Gullapalli Krishna Das Vs. Vishnumolakala Venkaiah & others, AIR 1978 SC 361, the Hon'be Apex Court has again affirmed the law as laid down by it in the case of V. Tulasamma Vs. V. Shehsa Reddy (supra).
21. In the instant case Pt. Jagmohan Shukla had two wives and Smt. Ram Shri Kunwar was one of them who had a daughter namely Smt. Annapurna Devi. Ram Shankar Shukla was from the other wife. Being wife, Smt. Ram Shri Kunwar was entitled for residence and maintenance from her husband Pt. Jagan Mohan Shukla. Through family settlement several properties were devised in favour of her and her step son Ram Shankar Shukla by Pt. Jagan Mohan Shukla to avoid future disputes. She was also conferred right of full ownership in respect of other properties but the houses in dispute except the right to transfer with the consent of Ram Shankar Shukla. Possession was also handed over to her. In the year 1956, the Hindu Succession Act came into force with Section 14 conferring the rights of full ownership on Hindu women. At that time, she was occupying the property. She died on 16.04.1977. It is crystal clear that through family settlement the pre-existing right of residence & maintenance of Smt. Ram Shri Kunwar was recognized. No any new right was conferred on her. So she became full owner of the property in question by virtue of sub-section (1) of Section 14 of the Hindu Succession Act and sub-section (2) of Section 14 of the Act, cannot be applied.
22. Consequently the defendant/respondent Smt. Annapurna Devi, daughter of Smt. Ram Shri Kunwar, who became the full owner of the property in question, is also entitled to inherit the property.
23. This Court is of the considered opinion that there appears no illegality or impropriety in the judgment and decree dated 12.09.1997 passed by learned First Additional District Judge, Pilibhit by which learned court had allowed the appeal and set aside the judgment and decree dated 28.11.1981 passed by Civil Judge, Pilibhit in O.S. No.49/2007.
24. Accordingly, this second appeal lacks merit and is, hereby, dismissed and the judgment and decree passed by first appellate court is confirmed.
25. No order as to costs.
Order Date :- 17th February, 2022 Ashok Gupta (Subhash Chandra Sharma,J.)