Madras High Court
Mariappa Gounder And Two Others vs V. Kandasamy And Two Others on 27 April, 1998
Equivalent citations: 1998(3)CTC61
ORDER
1. The plaintiffs in O.S. No. 633 of 1983 on the file of the District Munsif, Pollachi are the appellants herein. They filed the suit for partition, to divide the properties into four equal shares and allot two such share to the plaintiffs. Their case is that the suit property originally belonged to their father. The defendants 1 and 2 are the brothers of the plaintiffs. Their mother one Thangammal filed the suit O.S. No.185 of 1980 claiming maintenance against her husband, the father of the plaintiffs and the defendants 1 and 2. The said suit was ended in compromise. The father of the plaintiffs and the defendants 1 and 2 agreed to give the plaint 'A' and 'B' schedule properties in lieu of her maintenance, apart from paying a sum of Rs.2,500 towards arrears of maintenance and the court expenses. Pursuant to the said compromise decree, the mother of the plaintiffs and the defendants 1 and 2 were given possession of the said properties. Though a restricted life interest had been granted in favour of the mother under the compromise decree, she became a full owner pursuant to Section 14(1) of the Hindu Succession Act. The plaintiffs and defendants 1 and 2 are equally entitled to share the plaint schedule properties. Since their father had executed a settlement deed in favour of the fourth defendant who is to get the properties after the death of the mother of the plaintiffs and the defendants 1 and 2, the fourth defendant is claiming title over the property. Hence the suit.
2. The third defendant claims to be a lessee under the fourth defendant. The first defendant filed the written statement contending that he is in possession and enjoyment of the suit properties as the lessee and the plaintiffs are fully aware about the same. Hence they cannot claim separate possession of the property. The plaintiffs are entitled to have their half share in the lease amount. The first defendant has no objection to ascertain the share of the plaintiffs. The defendants 2, 3 and 4 colluded together to deprive the first defendant's lease hold right and set up the third defendant to file a suit O.S. No.526 of 1982. The fourth defendant does not have any title or right over the property. The second defendant filed a written statement which was adopted by the fourth defendant, who is his son. Their, case is that the mother of the plaintiffs and the defendants 1 and 2 got the property only under the compromise decree and as such it is not open to the plaintiffs to claim that their mother is an absolute owner. They also denied the lease hold right of the first defendant. The fourth defendant claimed title pursuant to the settlement deed executed by his grandfather and also contented that he had leased the plaint 'A' schedule properties to the third defendant. Since the plaintiffs have no right to claim title, the suit is liable to be dismissed.
3. The third defendant also filed written statement contending that he is in possession and enjoyment of the 'A' schedule property as a tenant and his name has been registered in the revenue records under the Record of Tenancy Act.
4. The third defendant filed a separate suit O.S. No.526 of 1982 for bare injunction restraining the defendants therein from interfering with his possession on the basis that he is a tenant. The defendants 1 to 3 and the plaintiffs in O.S. No.633 of 1983 are the defendants in this suit.
5. On the above pleadings the parties have let in evidence. The trial court, after considering the rival contentions of both the parties, decreed the suit O.S. No.633 of 1983 finding that the mother of the plaintiffs and the defendants 1 and 2 got the properties under the compromise decree Ex.A1 and since the properties have been given to her in lieu of maintenance, she became the absolute owner in accordance with Section 14(1) of the Hindu Succession Act, 1956. Further the trial court had dismissed the suit O.S. No.526 of 1982 filed by the third defendant on the ground that he has denied the title of the plaintiffs as well as the first defendant. By such denial, the third defendant had lost his right assuming, if any, by way of forfeiture.
6. As against the common judgments and decree of the trial court, the second and fourth defendants filed the appeal A.S. 97 of 1984 and the third defendant filed appeal A.S. 95 of 1984 on the file of the sub-court, Udumalpet. The learned Subordinate Judge took a different view and allowed the appeal filed by the defendants 2 and 4 holding that Section 14 (1) of the Hindu Succession Act is not applicable to the present case. Since the mother of the plaintiffs and defendants 1 and 2 got the property only under the compromise decree, the provisions of Section 14(2) of the said Act alone is applicable and as such the mother of the plaintiffs and the defendants 1 and 2 will get only a limited estate and she cannot have an absolute title.
7. So far as the appeal A.S. 95 of 1984 filed by the tenant, the third defendant is concerned, the learned Subordinate Judge has allowed the same on the ground that the settlement deed in favour of the fourth defendant executed by his grand father is valid; especially when his grand mother has got only a limited estate under the compromise decree. Since the fourth defendant had admitted the lease in favour of the third defendant, the third defendant is entitled to have the decree for injunction. As against the said common judgment of the Subordinate Judge, the present second appeals have been filed. S.A No. 880 of 1985 arises out of the suit O.S. No.526 of 1982 filed by the tenant. S.A No. 881 of 1985 arises out of the suit O.S. No.633 of 1983 filed by the daughters, claiming partition.
8. The learned counsel for the appellants contended that under the compromise decree in O.S. No.185 of 1960 on the file of the District Munsif, Udumalpet the mother of the plaintiffs and defendants 1 and 2 was put in possession of the plaint schedule properties. She was given the possession of the properties in lieu of her maintenance right. Hence as rightly pointed out by the trial court, section 14(1) of the Hindu Succession Act is applicable whereby the limited estate granted to the mother has enlarged into an absolute estate. Consequently the plaintiffs and the defendants 1 and 2 are entitled to divide the properties equally.
9. On the contrary, the learned counsel for the respondents contended that, to have the benefit under section 14(1) of the Hindu Succession Act the lady must have a pre-existing right of maintenance. In this case the mother of the plaintiffs and the defendants 1 and 2 do not have any pre- existing right of maintenance. The properties were given to her only under the compromise decree Ex.A-1 and as such the section 14(2) of the said Act is clearly applicable. The lower appellate court has rightly held so.
10. I carefully considered the contention of both the counsel. The short question to be decided is whether Section 14(1) or 14(2) of the Hindu Succession Act is applicable on the facts of the case. It may be worthwhile to refer to the claim of the mother of the plaintiffs and the defendants 1 and 2 in her suit O.S. No.185 of 1960 and the decree passed in the suit pursuant to the compromise memo filed by the parties. In the decree in O.S. No.185 of 1960 the particulars of the claim has been mentioned as follows:
"Claim for past maintenance of Rs.1,200, future maintenance at Rs.100 per month Rs.15 per month for residence, and Rs.5 per month for cloth and for costs. The plaintiff is the legally wedded wife of defendant. For the past 5 years the defendant is keeping a concubine and has neglected to maintain his family property. On account of continuous ill treatment the plaintiff left defendant 1 1/2 years ago and is living with her sister. The defendant is a rich man and is bound to provide for the plaintiff. Hence the suit Angalakurichi about 1 1/2 years back."
The terms of the compromise memo are as follows: "(1) that the defendant do pay plaintiff Rs.2,500 towards past maintenance and costs of the suit and the plaintiff do draw the same from court deposit out of the amounts of the defendant. (2) that the defendant do put the plaintiff in possession of the A-Schedule property for future maintenance on or before 1.11.1961. (3) in default the plaintiff be at liberty to execute this decree for recovery of the same with mesne profits of Rs.800 per annum and costs of the execution proceedings."
Pursuant to the abovesaid decree, the mother of the plaintiffs and defendants 1 and 2 were put in possession of the said property and the delivery was recorded in E.A. 2016 of 1961 on 29.9.61.
11. From the above available materials, it is clear that the mother of the plaintiffs and the defendants 1 and 2 filed the suit O.S. No.185 of 1960 for maintenance on the ground that her husband had been keeping a concubine and neglected to maintain her family and consequently she was forced to live with her sister. Her husband agreed to pay maintenance to her. But, however, by way of the compromise, instead of paying the maintenance, the mother of the plaintiffs and defendants 1 and 2 was given a life estate in respect of the properties mentioned therein.
12. It has to be considered that whether the said Thangammal has got a pre-existing right of maintenance on the date when she was put in possession of the properties in order to attract Section 14(1) of the Hindu Succession Act or whether the said Thangammal has got the property under the compromise decree for the first time without any pre-existing right of maintenance so as to attract Section 14(2) of the said Act.
13. Section 14 of the Hindu Succession Act reads thus:
"14. Property of a female Hindu to be her absolute property--(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 arid 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 terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
14. In a leading case reported in Tulasamma v. Sesha Reddi, A.I.R. 1977 S.C. 1944, a Bench of three Judges had elaborately discussed the issue and considered the right acquired under the will and held at page 1947 as follows:
"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 the Legislature being to wipe out the disabilities from which a Hindu female suffered in regard to ownership of property under the old Sastric law, to abridge the stringent provisions against proprietary rights which were often regarded as evidence of her perpetual tutelage and to recognize her status as an independent and absolute owner of property. This Court has also in a series of decisions given a most expansive interpretation to the language of sub-sections (1) of section 14 with a view to advancing the social purpose, of the legislation and as part of that process, construed the words 'possessed of' also in a broad sense and in their widest connotation. It was pointed out by this court in Gumalapura Taggina Matada Kotturuswami v. Setra Veeravva, that the words 'possessed of' mean 'the state of owning or having in one's hand or power'. It need not be actual or physical possession or personal occupation of the property by the Hindu female, but may be possession in law. It may be actual or constructive or in any form recognised by law. Elaborating the concept, this court pointed out in Mangal Singh v. Rottno, A.I.R. 1967 S.C. 1786 that the section covers all cases of property owned by a female Hindu although she may not be in actual, physical or constructive possession of the property, provided of course, that she has not parted with her rights and is capable of obtaining possession of the properly. It will, therefore, be seen that sub-section (1) of section 14 is large in its amplitude and covers every land of acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property."
At page 1948 it has been held as follows:
"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) and so read, 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. This constructional approach finds support in the decision in Badri Prasad's case, where this court observed that 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 may also be noted that when the Hindu Succession Bill 1954, which ultimately culminated into the Act, was referred to a Joint Committee of the Rajya Sabha, Cl. 18 (2) of the Draft Bill, corresponding to the present sub-section (2) of section 14, referred only to acquisition of property by a Hindu female under gift or will and it was subsequently that the other modes of acquisition were added so as to include acquisition of property under an instrument, decree, order or award. This circumstance would also seem to indicate that the legislative intendment was that sub-section (2) should be applicable only to cases where acquisition of property is made by a Hindu female for the first time without any pre-existing right kind of acquisition akin to one under gift or will. 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 sub-section (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property."
15. From the above discussion it is clear that the provisions were enacted in order to provide the due rights the women are entitled to. The same principle had been followed in a catena of cases. I am of the opinion that it is unnecessary to refer all the decisions. In the latest judgment on this question reported in Mangat Mal v.Punni Devi, it has been held as follows:
"In our view, on a perusal of the terms of reference, the award and the document executed by Sukh Devi, indicating her preference for the Bidasar property there is no doubt that Sukh Devi acquired the bidasar property and the sum of Rs.38,000 in lieu of her pre-existing right to maintenance. That the award of the property and the money was linked is clear from the fact that the quantum of the money depended upon whether Sukh Devi chose the Bidasar property or the Ladnu property. The award of both property and money was in lieu of her pre-existing right to maintenance.
Maintenance, as we see it, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu there of. It may also be made by providing, for the course of the lady's life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Section 14(1)."
16. It is clear that consistently the Supreme Court has held that if a female Hindu acquired the property either before or after the commencement of the Act in lieu of maintenance then Section 14(1) of the Act is attracted. When once the right of maintenance comes in it has to be considered as to whether on the date when she acquires the property has she got a pre-existing right of maintenance. If the pre-existing right of maintenance is in existence and that a female Hindu is acquiring the property in lieu of such right then the provision of Section 14(1) of the Act conies into play Section 14(2) comes into play when the female Hindu acquires the property only under the documents mentioned therein without any pre-existing right.
17. Now the question of consideration is whether Tnangammal was having a pre-existing right of maintenance on the date of compromise decree pursuant to which she acquired the property. From Ex.A-1 it is clear that the said Thangammal has filed the suit against her husband for maintenance on the ground that he was keeping a concubine for the past five years prior to the filing of the suit and unable to bear the illtreatment she left the marital house and lived with her sister. The defendant, her husband did not contest the suit, but agreed to enter into a compromise in the terms mentioned under Ex.A-1. Under the terms of the compromise, he agreed to pay a sum of Rs.2,500 towards past maintenance and further agreed to put the plaintiff in possession of the property on or before 1.11.61 for future maintenance and in case if he fails to hand over possession of the property his wife is entitled to execute the decree and recover possession.
18. On the above terms of the compromise, it is clear that the husband of Thangammal admitted that she is entitled for the maintenance and agreed to pay the past maintenance and gave the property in lieu of the further maintenance. It may be worth to refer to Section 18 of the Hindu Adoptions and Maintenance Act, 1956 which reads as follows:-
"18. Maintenance of wife--(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. (2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance-- (a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her; (b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband; (c) if he is suffering form a virulent from of leprosy; (d) if he has any other wife living; (e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; (f) if he has ceased to be a Hindu by conversion to another religion; (g) if there is any other cause justifying her living separately.
(2) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion."
Sub-clause (e) of sub section (2) of section 18 gives the Hindu wife a liberty to live separately if her husband habitually resides with a concubine elsewhere. The plaint averment in the maintenance suit is that the husband is living with the concubine for the past five years. The suit has been laid on 16.4.60. The compromise memo was filed on 20.6.61. When once the husband admitting the averment made in the plaint, agreed to give maintenance to his wife, then naturally the averments made in the plaint are to be taken as true or deemed to have been admitted, hence when the husband is living with his concubine, the wife is entitled to live separately and get maintenance. Without contesting the suit on merits the husband has agreed to pay the past maintenance and also deliver the properties in lieu of the future maintenance. If suppose the suit has been contested and decreed and thereafter, pursuant to the decree a compromise has been agreed upon whereunder the Hindu wife has been given the property in lieu of her maintenance decree, then naturally she will be having a pre-existing right of maintenance. On the date when she was put in possession of the property. In this case also the compromise was entered into on 20.6.61. Under the said compromise the husband has agreed to give maintenance to his wife and in lieu of the said maintenance admittedly the properties have been given to Thangammal. When the arrears of maintenance was agreed to be paid that means on the date of the compromise decree itself the said Thangammal was having a pre- existing right of maintenance. Otherwise is no need for there husband to pay the arrears of maintenance. Even otherwise when the wife is put in possession of certain property in lieu of her maintenance, that itself is more than enough to conclude that she has got a pre-existing right of maintenance.
Hence I am of the opinion that Thangammal, the mother of the plaintiffs and defendants 1 and 2 was having a pre-existing right of maintenance on the date of the compromise decree dated 20.6.61 pursuant to which she had been put in possession of the properties on 29.9.61.
19. In view of the above findings, the judgment of the lower appellate court is set aside and accordingly S.A. No. 881 of 1985 is allowed.
20. So far as the appeal S.A. No. 880 of 1985 is concerned, the same is arising out of the suit O.S. No.526 of 1982 filed by the tenant. He claims that he is a tenant under the fourth defendant in whose favour the settlement deed was executed by the father of the plaintiffs and defendants 1 and 2. The fourth defendant is to get the properties after the death of Thangammal, the mother of the plaintiffs and the defendants 1 and 2 who was put in possession of the properties under the compromise decree Ex.A1.
21. In view of the findings already arrived at that the Thangammal, the mother of the plaintiffs and the defendants 1 and 2 is entitled to have an absolute estate, the settlement deed executed in favour of the fourth defendant is of no consequence. Hence the fourth defendant has no title and the third defendant being put in possession by a person who has no title or right over the property cannot claim any tenancy against the real owner. Hence this appeal S.A. 880 of 1985 is also allowed.