Patna High Court
Mossomat Baijnath Kuer vs Maheshwari Devi And Anr. on 6 March, 1981
Equivalent citations: AIR1981PAT255, 1981(29)BLJR709, AIR 1981 PATNA 255
JUDGMENT Chaudhary Sia Saran Sinha, J.
1. This second appeal by the plaintiff against the judgment of reversal raises a short point, namely, whether, in the facts and circumstances of this case, Subsection (1) of Section 14 of the Hindu Succession Act, 1956, or Sub-section (2) of that section shall apply.
2. Short facts, relevant for disposal of this appeal, on the limited contention raised before this Court which are undisputed, are these: Mahadeo and Sidheshwar were two full brothers. The plaintiff is the widow of Mahadeo. One Mossomat Asharfi, impleaded as defendant No. 2 was the widow of Sidheshwar. Sidheshwar died sometime in the year 1922 leaving his widow Asharfi and his daughter, Maheshwari, who was then a baby in the arms. There is controversy between the parties about separation between Mahadeo and Sidheshwar. Defendant No. 2 alleged that Sidheshwar had separated from Mahadeo, severing the joint status, although the properties were not partitioned by metes and bounds. The plaintiff alleged otherwise, namely, that Sidheshwar died in state of jointness with Mahadeo and the properties of Sidheshwar passed on to Mahadeo by right of survivorship.
3. Sidheshwar fell seriously ill before he died. For maintenance of his widow Asharfi and the marriage of his daughter named above, in the year 1922, he executed a Mokarrari Heyati deed. By this deed, six annas and odd proprietary interest in mouza Belchi which included the suit land, the same being the bakasht land, was given to Asharfi.
4. On 21st April, 1935, Asharfi executed a registered deed of Ladavi (deed of relinquishment) in favour of Mahadeo disclaiming her interest in the property, conveyed to her under the Mokarrari Heyati deed. There is controversy between the parties regarding this Ladavi deed as well. Defendant No. 2 alleged that this Ladavi deed was a fictitious document which Mahadeo got executed by her under the pretext that she was executing a Mokhtarnama in his favour. According to the plaintiff, it was a genuine and valid document. Two days after the execution of this Ladavi deed, namely, on 23rd April, 1935, a further deed of maintenance came into being which was executed by Mahadeo in favour of defendant No. 2.
5. Yet another event took place in the year 1947 when defendant No. 2 instituted Title Suit No. 22 of 1947 before the Subordinate Judge, Patna, for declaration inter alia, that the deed of Ladavi was a sham and invalid document and was inoperative and ineffective. Under the orders of the Court, the dispute between the parties, namely, the plaintiff and defendant No. 2, centering round the Ladavi deed, was referred to arbitration. The arbitrators gave an award. It was made a rule of the Court and is Ext. 2, While the arbitrators left open the question of title with respect to the properties of Sidheshwar, 8 Bighas 15 Kathas and 12 Dhurs of land was given to defendant No. 2 for her maintenance. She was allowed life interest in this property with the limitation that she could secure loan only up to Rs. 1,000/- by giving this property in security. It is undisputed that Asharfi (defendant No. 2) continued in possession of this 8 Bighas 15 Kathas and odd land and was in possession thereof till the vesting of the zamindari some time in the year 1956 and the coming into force of the Hindu Succession Act, 1956. After this award came into being, defendant No. 2 mortgaged some of these properties to one Dhanraj Sharma for a sum of Rs. 1,000/-. Subsequently, on 1st July, 1963, she executed another rehan deed in favour of defendant No. 1 for a consideration of Rs. 600/- by mortgaging a portion of the land given to her for maintenance under Ext. 2. This led the plaintiff, the wife of Mahadeo, to institute the instant suit out of which this second appeal has arisen for a declaration that defendant No. 2 had no right to execute the mortgage deed dated 1st July, 1963, and it was not binding on the plaintiff. The suit was contested by defendant No. 2.
6. The trial Court was of the view that defendant No. 2 did not become an absolute owner of 8 Bighas 15 Kathas and odd land in spite of her remaining in khas possession thereof both at the time of the vesting of the zamindari and the coming into force of the Hindu Succession Act for the reason that she acquired this property with the limitations as mentioned in the award (Exhibit 2), one of the limitations being that defendant No. 2 could not secure loan of more than Rs. 1,000/- by giving this property in security. She was held to have no right to execute the subsequent mortgage deed in favour of defendant No. 1 and it was held not binding on the plaintiff. The result was that the plaintiff's suit was decreed by the trial Court.
7. Defendant No. 2 carried the matter in appeal. The only question that was mooted before the lower appellate Court Was whether defendant No. 2 acquired absolute right in the 8 Bighas 15 Kathas and odd land which included the land mortgaged under Ext. 5/c, by virtue of the provisions of the Hindu Succession Act. The lower appellate Court held, inter alia, that there could be no manner of any doubt that the Mokarrari Heyati deed was executed in favour of defendant No. 2 for her maintenance and she remained in possession of the land as such and that the award, Ext. 2, simply re-established the maintenance right of defendant No. 2 over the suit properties. Holding that the provisions of Section 14 (1) of the Hindu Succession Act shall apply and not the provisions of Sub-section (2) of Section 14, defendant No. 2 was held to be absolute owner of the land given to her under Ext. 2 including the land mortgaged under Ext. 5/c, and as such, she was held entitled to secure a loan of Rs. 600/- as well. Result was that the judgment and decree of the lower Court was set aside and the plaintiff's suit was dismissed. It is under these circumstances that the plaintiff has taken up this matter to this Court in second appeal.
8. The submission of Shri Tarakant Jha, learned counsel for the appellant, was that the finding of the lower appellate Court that the Mokarrari Heyati deed was executed in favour of defendant No. 2 for her maintenance and she remained in possession of the land as such and that the award (Ext. 2) merely re-established the said maintenance right of defendant No. 2 was based on no evidence and was liable to be set aside necessitating a remand of the matter to the lower appellate Court for a fresh decision in accordance with law. Shri Jagdish Pandey, learned counsel for the respondents, stoutly refuted this contention of Shri Tarakant Jha.
9. Although some controversy existed between the parties on some of the points referred to above, the sole and the prime point for consideration in this second appeal is whether the facts and circumstances of this case would warrant the application of Sub-section (1) of Section 14 or of Sub-section (2) of Section 14. The answer to this problem would depend on the construction of the award (Exhibit 2) as also on certain facts which were not in dispute between the parties. Defendant No. 2 claimed that Sidheshwar died after severing his joint family status with Mahadeo, though the properties were not divided by metes and bounds. The plaintiff disputed this and claimed the properties of Sidheshwar by right of survivorship. Be that as it may, it cannot be disputed that even if the plaintiff's story be accepted, defendant No. 2 would be entitled to maintenance out of the properties owned and possessed by Mahadeo and Sidheshwar. In other words, even according to the plaintiff's case, she would be possessed with the right of maintenance from out of the properties belonging to the two brothers. This right of defendant No. 2 to be maintained is a statutory right possessed by her under the Hindu law. In fact also, this right of defendant No. 2 was recognised by execution of the Mokarrari Heyati deed as far back in the year 1922 as also by the execution of another undisputed deed of maintenance on 23rd April, 1935, by Mahadeo himself in her favour after he succeeded in getting the Ladavi deed dated 21st April, 1935, executed by defendant No. 2, Exhibit 2 shows that defendant No. 2 instituted Title Suit No. 22 of 1947 for a declaration that she had got title over the properties given in Mokarrari Heyati and that the Bajidawa dated 21st April, 1935, in favour of Mahadeo was fraudulent. There was also a prayer for delivery of possession. It further shows that in lieu of the claim of Ashrfi, the arbitrators awarded 8 Bighas 15 Kathas and odd land to her in which she was given widow's estate without any right of alienation. She was also held entitled to obtain loan to a maximum of Rs. 1,000/- by securing this property. It was further observed that the deed of maintenance executed - in her favour, presumably referring to the deed dated 23rd April, 1935, was to remain inoperative as before. Lastly, Baijnath Kuer, widow of Mahadeo was also allotted the property described in Sch. 2 to the award over which she was to remain in possession for her lifetime.
10. Section 14 (1) of the Hindu Succession Act is large in its amplitude, covers every kind of acquisition of property by a Hindu widow and includes the acquisition of property by a Hindu widow as maintenance. Sub-section (2) of Section 14 must be confined to cases where the property is acquired by a Hindu female for the first time as grant without any pre-existing right. Defendant No. 2 claimed to have succeeded to the properties of the deceased husband on his separation from Mahadeo. She was armed with a Mokarrari Heyati deed executed as far back as in the year 1922. On the execution of Ladavi deed on 21st April, 1935, she felt that a cloud was cast on her title and she went to the Court in Title Suit No. 22 of 1947 in spite of the execution of the deed of maintenance by Mahadeo dated 23rd April, 1936. The arbitration took place some time in the year 1947, after coming into force of the Hindu Women's Rights to Property Act, 1937, and prior to the coming into force of the Hindu Succession Act. The arbitrators felt that litigation will be ruinous for the parties. They, therefore, left open the controversial question of separation between Mahadeo and Sidheshwar and allotted certain properties to both the widows, namely, Baijnath Kuer and defendant No. 2 for their enjoyment till lifetime, obviously by way of their maintenance. If defendant No. 2 was statutorily entitled to be maintained out of the properties of Sidheshwar, can it be said that she acquired the properties of Schedule 1 to Ext. 2 within the meaning of the term "acquired" as used in Sub-section (2) of Section 14. The reply must be in the negative.
11. Shri Jagdish Pandey, learned counsel for the respondents, relied in this connection on two decisions of the Supreme Court, namely, (i) reported in AIR 1977 SC 1944 (Vaddeboyina Tulasamma v. Vaddeboyina Sesha Reddi), and, (ii) reported in AIR 1978 SC 361 (Gullapalli Krishna Das v. Vishumolakala Venkayya). The third decision relied upon by him was a Division Bench decision of this Court reported in AIR 1980 Pat 101 (Dukhit Thakur v. Mosst. Godami Kuer) to which I was a party. The principles of law enunciated in these decisions support the contention of Shri Jagdish Pandey. As against the broad term 'possessed' used in Sub-section (1) of Section 14 of the Hindu Succession Act, the term used in Subsection (2) of Section 14 is 'acquired'. 'Acquire' according to Black's Law Dictionary, Fourth Edition, means to gain by any means, Usually by one's own exertions; to get as one's own; to obtain by search, endeavour, practice or purchase; receive or gain in whatever manner; come to have, etc. Keeping in view the far reaching and revolutionary changes sought to be introduced by the Parliament by enacting the Hindu Succession Act and the meaning assigned to the term 'acquired' in ordinary parlance, Sub-section (2) of Section 14 of the Hindu Succession Act can come into play only in cases where properties are acquired by a female Hindu for the first time as a grant without any pre-existing right under the various kinds of deeds mentioned therein. In the facts and circumstances of this case, the conclusion is, therefore, inescapable that the appropriate provisions applicable to the case would be Subsection (1) of Section 14 and not Sub-section (2) of that section. This being the position, if defendant No. 2 was in possession of these properties on the date when the Hindu Succession Act came into force, she will have an absolute right over those properties. Once it is so held, there will be no difficulty in coming to the conclusion that in spite of the limitations created under Ext. 2, when her limited interest turned into absolute interest on the coming into force of the Hindu Succession Act, she will be entitled to deal with the properties in any manner as absolute owner, and consequently, she would have the right to execute even the second mortgage deed for Rs. 600/- in favour of defendant No, 1.
12. Shri Tara Kant Jha wanted a remand of the case for the reason that the lower appellate Court gave a finding in para 11 of the judgment about the Mokarrari Heyati deed and her possession thereon as such without any material. It is not possible to accept this contention of Shri Tara Kant Jha. The prime question for consideration in this second appeal is the applicability of the provisions of Section 14 of the Hindu Succession Act. Execution of the Mokarrari Heyati deed by Sidheshwar in favour of defendant No. 2 is not in dispute. What is in dispute is whether the deed came to be operative. The disposal of the second appeal does not turn upon that point. Material facts are whether defendant No. 2 was in possession of the disputed properties on the date when the Hindu Succession Act came into force. Undisputedly, she was in possession. According to the plaintiff's case, this possession of defendant No. 2 was bused on Ext. 2. Even if that be so, defendant No. 2 will be entitled to invoke the aid of the provisions of Section 14 of the Hindu Succession Act. In such a situation, there would be absolutely no justification for remand of the case.
13. There is thus no merit in the contention raised by Shri Tara Kant Jha and it must fail. The result is that the appeal fails and is dismissed. The judgment and decree of the lower appellate Court are hereby confirmed. In the circumstances of the case, however, there shall be no order for costs of this second appeal and the parties shall bear their own costs.