Karnataka High Court
K Doddarangareddy S/O Venkanna vs K Ushamma @ Hushamma ... on 29 September, 2020
Author: P.N.Desai
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29th DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
REGULAR SECOND APPEAL NO.7254/2013
C/w.
REGULAR SECOND APPEAL NO.7255/2013
IN REGULAR SECOND APPEAL NO.7254/2013
BETWEEN:
K. DODDARANGAREDDY S/O. VENKANNA
AGED ABOUT 52 YEARS, OCC: AGRICULTURE,
R/O. CHANNALLI VILLAGE,
SINDHANUR, DIST. RAICHUR - 584 101.
.... APPELLANT
(BY SRI I.R. BIDARADAR, ADVOCATE)
AND:
K. USHAMMA @ HUSHAMMA
W/O. K. DODDARNGAREDDY
AGE: 47 YEARS, OCC: HOUSEHOLD,
R/O. CHANNALLI VILLAGE, TQ. SINDHANUR,
PRESENTLY R/O. DANDIN EARLA VILLAGE,
TQ. & DIST. BELLARY - 583 101.
... RESPONDENT
2
(BY SRI. P. VILAS KUMAR FOR RESPONDNET)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE PRAYING
TO ALLOW THIS REGULAR SECOND APPEAL AND TO SET
ASIDE THE JUDGMENT AND DECREE DATED: 04.04.2013,
PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND
JMFC AT LINGASUGUR SITTING AT SINDHANUR IN
R.A.NO.25/2009, DISMISSING THE APPEAL WITH COSTS
AND CONFIRMING THE JUDGMENT AND DECREE DATED:
10.11.2009 PASSED BY THE LEARNED PRL. CIVIL JUDGE
(JR.DN), SINDHANUR, IN O.S.NO.165/2007 AND DECREED
THE SUIT OF PLAINTIFF, IN THE INTEREST OF JUSTICE
AND EQUITY.
IN REGULAR SECOND APPEAL NO.7255/2013
BETWEEN:
K. DODDARANGAREDDY S/O. VENKANNA
AGED ABOUT 52 YEARS, OCC: AGRICULTURE,
R/O. CHANNALLI VILLAGE,
SINDHANUR, DIST. RAICHUR - 584 101.
.... APPELLANT
(BY SRI G.G. CHAGASHETTY, ADVOCATE)
AND:
K. USHAMMA @ HUSHAMMA
3
W/O. K. DODDARNGAREDDY
AGE: 47 YEARS, OCC: HOUSEHOLD,
R/O. CHANNALLI VILLAGE, TQ. SINDHANUR,
PRESENTLY R/O. DANDIN EARLA VILLAGE,
TQ. & DIST. BELLARY - 583 101.
... RESPONDENT
(BY SRI. P. VILAS KUMAR FOR RESPONDENT)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE PRAYING
TO ALLOW THIS REGULAR SECOND APPEAL AND TO SET
ASIDE THE JUDGMENT AND DECREE DATED: 04.04.2013,
PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND
JMFC AT LINGASUGUR SITTING AT SINDHANUR IN
R.A.NO.16/2009, DISMISSING THE APPEAL WITH COSTS
AND CONFIRMING THE JUDGMENT AND DECREE DATED:
29.06.2009 PASSED BY THE LEARNED PRL. CIVIL JUDGE
(JR.DN), SINDHANUR, IN O.S.NO.11/2006 AND DECREED
THE SUIT OF PLAINTIFF, IN THE INTEREST OF JUSTICE
AND EQUITY.
THESE REGULAR SECOND APPEALS HAVING BEEN
HEARD, RESERVED FOR JUDGMENT COMING ON FOR
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING
4
JUDGMENT
1. These two appeals arise out of Judgment and decree passed by the first appellate courts in Regular Appeal No.25/2009 and Regular Appeal No.16/2009 passed by Senior Civil Judge & JMFC Lingasugur sitting at Sindhanur dated: 04-04-2013.
2. Appellant in both these appeals is the plaintiff and respondent is the defendant before the trial court in O.S. No.165/2007 and O.S No.11/2006. The appellant and respondent are the husband and wife.
3. For the purpose of easy understanding and convenience and to avoid repetition, the parties will be referred in these appeals as per their respective ranks before the Trial Court.
4. The plaintiff / appellant has instituted a suit O.S. No.11/2006 seeking declaration of his title over the suit property and to declare mutation granted 5 on the basis of decree in O.S.No.41/1989 as illegal and restrain the defendant from alienating the suit schedule property i.e. house property. Similarly he has instituted O.S. No.165/2007 against the wife claiming declaration of title and permanent injunction in respect of land bearing survey No.138/E measuring 5 acres & 156 guntas of Chanalli village Taluka Sindhanur.
It is the contention of the plaintiff / appellant that the wife has filed a suit in O.S.No.41/1989 which ended in compromise. According to the terms of the compromise the defendant has agreed to enjoy the suit property house and agricultural land for her life in lieu of maintenance. The defendant also agreed not to alienate these properties having only life interest over the suit properties. Accordingly the plaintiff has delivered the possession of both house and land to her. The wife also got mutated her name in respect of the said house in Gram Panchayat. Now he learnt that the 6 defendant is going to alienate the suit property. It is further contended that, the wife has no right to alienate the property as she did not heed to his advise he has filed the separate suit one in respect of the house property situated at Gram Panchayat the other is agricultural land seeking declaration of his title and also permanent injunction against the defendant restraining her from alienating the said suit properties.
5. The defendant wife has appeared in both the suits admitted her relationship with the plaintiff and also admitted the decree passed in O.S.No.41/1989, but she denied the allegation that she intends to alienate the same. She has contended that, now the plaintiff is having no right in the suit property. She has enjoyed the suit property as an exclusive owner. In fact the plaintiff filed an appeal against the Judgment and decree in O.S.No.41/1989 which came to be dismissed. 7
Defendant has further contended that, the plaintiff and second wife and children have filed one more suit before the Civil Judge Court in O.S.No.78/1992 which also dismissed and he went in appeal before High Court and the said appeal RFA No.460/1997 also came to be dismissed. It is further contended that, both courts have observed that, the defendant is the absolute owner of the suit properties i.e., land and house. She has got every right to deal with the said property in view of section 14(1) of Hindu Succession Act. It is further contended that, the plaintiff cannot file such a suit and prayed to dismiss the suit.
6. On the basis of the pleadings, the trial court has framed the following Issues:
Issues in O.S.No.11/2006:
1. Whether the plaintiff proves that he is the owner of schedule property?8
2. Whether the plaintiff further proves that the defendant is trying to alienate the schedule property to strangers?
3. Whether the plaintiff is entitled to declaratory and consequential relief as sought for, in this suit?
4. What decree or order.
Additional Issue
1. Whether the plaintiff proves that mutation order of Gram Panchayath, Channalli dated 19-04-2005 on the basis of decree in O.S.No.41/89 is illegal, null and void?
Issues in O.S.No.165/2007:
1. Whether the plaintiff proves that there he is the absolute owner of the suit land?
2. Whether the plaintiff proves that the defendant is trying to alienate the suit property illegally?
3. Whether the plaintiff is entitled for the relief sough?
4. What decree or order?9
7. The plaintiff got examined himself in both suits as PW.1 and got examined two witnesses as PW.s 2 & 3 and got marked two documents as Ex.P.1 & Ex.P.2 in O.S. No.11/2006 and six documents as Ex.P.1 to Ex.P6 in O.S.No.165/2007 which consist of certified copy of compromise petition and decree in O.S.No.41/1989 and the property extracts and R.O.R in respect of house and agricultural land. The defendant in both suits got examined as DW.1 and got marked nine documents as Ex.D.1 to Ex.D.9 which consist of certified copies of Judgment and decree in O.S.No.41/1989, O.S.No.78/1992, RFA No.460/1997, Judgment in O.S.No.225/1997, the property extract in respect of house and ROR in respect of agricultural land.
8. The trial court after hearing both sides, dismissed both suits of the plaintiff holding that the wife has acquired the property in lieu of maintenance recognizing her pre-existing right of maintenance. 10 Against the dismissal of both suits the plaintiff preferred Regular Appeals as referred above which also came to be dismissed.
9. Being aggrieved by the same the plaintiff/appellant preferred these two separate Regular Second Appeals on the following grounds:
10. In both the appeals the plaintiff/appellant has taken same grounds contending that, both the courts have erred in holding that the defendant has become owner of suit properties by virtue of Sec.14(1) of Hindu Succession Act. Both the courts have not appreciated Sec.14(2) of the Hindu Succession Act and have given erroneous findings. It is further contended that, in the compromise petition filed in O.S.No.41/1989 one of the compromise terms is that "that the plaintiff will enjoy both the properties as owner during her lifetime and she must not will away, transfer, create charge or transfer by way of sale deed to anyone 11 else. The said suit properties given to the defendant for maintenance during her lifetime". It is further contended that, as the properties were given to the defendant only with limited interest, she would not become absolute owner under section 14(1) of the Hindu Succession Act. It is contended that, in fact the said compromise decree through which the wife acquired limited right of maintenance till her lifetime is governed by Section 14(2) of the Hindu Succession Act.
With these main contentions the appellant has prayed to allow both the appeals and set aside the impugned Judgments.
11. I have heard Sri.I.R. Biradar learned counsel for appellant and Sri.P.Vilas Kumar learned counsel for respondent in both the appeals.
12. Sri.I.R Biradar learned counsel for appellant argued that, the properties were given to the wife in lieu 12 of maintenance in a compromise decree entered between them. There is also a clause in terms of the compromise that, it is only a limited right she has to enjoy the properties but has no right to alienate the properties. The learned counsel further argued that, in view of section 14(2) of the Hindu Succession Act the wife will not become the full owner during lifetime of the husband as the properties were given to wife in lieu of maintenance in a compromise decree. The learned counsel further argued that, both the courts have wrongly applied Section 14(1) of Hindu Succession Act and prayed to allow both the appeals. In support of his arguments, learned counsel has relied on following three decisions :
1) Appeal (Civil) 4153 /2002 (Sharad Subramanyan V/s Soumi Mazumdar & others )
2) AIR 1997 Supreme Court 3082 (Venkamamidi Venkata Subba Rao Vs Chatlapalli Seetharamaratha Ranga-nayakamma)
3) ILR 2013 KAR. 1711 (Sri.Vishwaraj and Another Vs Sri.B.M.Byrappa and Others) 13
13. Per contra, Sri.P.Vilas Kumar learned counsel for respondent/defendant argued that, though the properties were given in terms of compromise decree but the said properties were given in lieu of maintenance to her which is her pre-existing right. Therefore, in view of Section 14(1) of the Hindu Succession Act, she became full owner of the properties. Moreover the challenge made by the husband regarding compromise decree and the other suits filed by him and his brothers for declaration in respect of the properties involved in these suits also having been dismissed and attained finality in appeal. The learned counsel also argued that, there was also divorce decree passed and the appeal is pending. The learned counsel argued that, totally the appellant has instituted 18 cases against the respondent. Urging the dismissal of the appeals. In support of his arguments he relied upon following Judgments and decisions :
1) certified copy of Judgment in RFA No.460/1997 dated: 15-06-1998 on the file of this court) 14
2) certified copy of Judgment in O.S. No. 78/1992 dated: 17-04-1997 on the file of Prl. Civil Judge at Raichur.
3) certified copy of Judgment in O.S. No.225/1997 dated: 31-03-2004 on the file of Prl. Civil Judge (Jr.Dn.) Sindhanur.
4) AIR 1977 SC 1994 (V. Tulsamma & Ors Vs Sesha Reddy (Dead) by Lrs.
5) AIR 1987 SC 2251 (Gulwant Kaur and Ors. Vs Mohinder Singh and Ors.
6) ILR 1991 Kar. 2877 (Smt.Babalabai Vs Union of India)
7) ILR 2003 Kar. 3188 (Yemanappa Dudappa Marve & Ors. Yellubai and Ors.)
8) ILR 2006 Kar. 156 (Sri.Santosh & Ors. Vs Smt.Saraswathibai and Anr.)
14. From the above materials, evidence and arguments a common substantial question of law that would arise in both the appeals for my consideration is as under:-
'Whether the first appellate court is justified in dismissing the appeals holding that, Section 14(1) of Hindu Succession Act is applicable to the properties given to the wife /defendant in lieu of her maintenance in a compromise decree in O.S.No.41/1989"15
15. My answer to the above point is as under for the reasons given below.
16. The undisputed contentions are that, the plaintiff and defendant are husband and wife. Suit properties were given to wife in a compromise decree entered between them in O.S. No.41/1989 in lieu of her maintenance. The challenge made by the husband in respect of the said compromise decree is negatived and become final. The other suits filed by the plaintiff along with other brothers seeking declaration also came to be dismissed. The challenge to the said dismissal has also attained finality by the High Court dismissing the Regular First Appeal. The wife defendant is admittedly in possession of both house and agricultural land. Her name is also mutated in respect of the said properties in panchayat extract and R.O.R. They are living separately for more than three decades. In the light of these undisputed contention if the evidence and the 16 concurrent findings of both the courts are considered, it is evident that, the suit properties were given to the wife in recognition of her pre-existing right to maintenance. The said properties were given to her not for the first time to create any right but they are given in recognition of her pre-existing right i.e. right of maintenance. In order to appreciate whether such a comprise decree governed by section 14(1) or 14(2) of the Hindu Succession Act 1955. In order to appreciate the same it is necessary to refer to Sec.14(1) and 14(2) of Hindu Succession Act 1955 which reads as under:
Section 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 and not as a limited owner.
Explanation:- In this Sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.17
(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 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.
So on plain reading of both the sections, it is evident that, when a specific property is allotted to a woman in lieu of claim for maintenance, such allotment would be satisfaction of her pre-existing right and where such properties are allotted to her under a instrument or decree prescribed in restricted estate for her property then it will be governed by section 14(1) of Hindu Succession Act and section 14(2) has no application.
17. The Apex Court in a decision reported in AIR 1987 SC 2251 in case of Gulwant Kaur Vs Mohinder Singh considered the applicability of section 14(1) & section 14(2) of Hindu Succession Act by referring to its earlier decisions. The facts of that case are similar to this case. Dealing with the property given by husband to a wife in lieu of maintenance and subsequently selling it 18 to some other person the Apex Court held at paragraphs Nos.3 to 12 it as under :
3. It is obvious that Sec. 14 is aimed at removing restrictions or limitations on the right to a female Hindu to enjoy, as a full owner, property possessed by her so long as her possession is traceable to a lawful origin, that is to say, if she has a vestige of a title. It makes no difference whether the property is acquired by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or by her own skill or exertion or by purchase or by prescription or in any other manner whatsoever. The explanation expressly refers to property acquired in lieu of maintenance and we do not see that further title that widow is required to establish before she can claim full ownership under Sec. 14(1) in respect of property given to her and possessed by her in lieu of maintenance. The very right to receive maintenance is sufficient title to enable the ripening of possession into full ownership if she is in possession of the property in lieu of maintenance. Sub-sec(2) of Sec.14 is in the nature of an exception to Sec.14(1) and provides for a situation where property is acquired by a female Hindu under a written instruments or a decree of court and not where such acquisition is traceable to any antecedent right.
4. In Eramma v. Verrupanna, (1966) 2 SCR 626 on the death of the last male holder, his two step mothers who had no vestige of title to the properties got possession of the properties and in answer to a suit by the rightful heirs, one of them claimed that she had become full owner of the property under sec. 14 of the Hindu Succession Act. The Supreme Court pointed out that the object of sec. 14 was to extinguish the estate called limited estate and to make a Hindu woman who would otherwise be a limited owner, a full owner of the property but it was not to confer a title on a female Hindu, who did not in fact possess any vestige of title. The case did not deal with the case of Hindu a woman who was given 19 property in lieu of maintenance and in whom therefore a right or interest was created in the property.
5. In Badri Pershad v, Smt, Kanso Devi, [1970] 2 SCR
95. The Court pointed out that a Hindu widow who after the death of her husband obtained properties under a partition award between herself and her sons, would be entitled to an abso- lute estate under sec. 14(1) of the Act and that merely because the partition was by means of an arbitration award, sec. 14(2) would not be attracted. It was made clear that sec. 14(2) was in the nature of a proviso or an exception to sec. 14(1) and that it came into operation only if the Hindu woman required the property in any of the methods indicated therein for the first time without their being any pre- existing right in her to the property. The principle of the case far from supporting Shri Tarkunde's submission supports the submission of the appellants.
6. In Naraini Devi v. Smt. Rano Devi and Ors., [1976] 3 SCR 55 the case of Badri Pershad v. Smt. Kanso Devi (supra) was distinguished on the ground that the widow had no pre-exist- ing right in the property which she obtained under an award and therefore, the case fell squarely within sec. 14(2) of the Hindu Succession Act.
7. In Tulasamma v. Sesha Reddi, (1977) 3 SCR 261, it was clearly laid down that sec. 14(1) would be applicable to property given to a female Hindu in lieu of maintenance. It was also made clear that sec. 14(2) would apply only to cases where the acquisition of property was made by a Hindu female without any pre-existing right.
It was said (at pp. 1947 and 1951 of AIR) : "It will, therefore, be seen that sub-sec. (1) of sec.14 is large in its amplitude and covers every kind of acqui- sition 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 subsequently acquired and possessed, she would become the full owner of the property. Now, sub-section (2) of sec. 14 provides that nothing contained in sub-sec. (1) shall apply to another property acquired by way of gift or under a will or any instrument or 20 under a decree by order of a civil court or under an award when the terms of the gift, will or other instrument or the decree, order or award prescribed a restricted estate in such property. This provision is more in the nature of a proviso or an exception to sub-sec. (1) and it was regarded as such by this court in Badri Pershad v. Kanso Devi (supra) ................................... ........................................................... It is, therefore, clear that under the Shastric Hindu Law a widow has a right to be maintained out of joint family property and this right would ripen into a charge if the widow takes the necessary steps for having her maintenance ascertained and specifically charged in the joint family property and even if no specific charge is created, this right would be enforceable against joint family property in the hands of a volunteer or a purchaser taking it with notice of her claim. The right of the widow to be maintained is of course not a jus in rem, since it does not give her any interest in the joint family property but it is certainly jus ad rem, i.e., a right against the joint family property. Therefore, when specific property is allotted to the widow in lieu of her claim for maintenance, the allotment would be in satisfaction of her jus ad rem, namely, the right to be maintained out of the joint family property. It would not be a grant for the first time without any preexisting right, in the widow. The widow would be getting the property in virtue of her pre-existing right, the instrument giving the property being merely a document effectuating such pre-existing right and not making a grant of the property to her for the first time without any antecedent right 'or title. There is also another consideration which is very relevant to this issue and it is that, even if the instrument were silent as to the nature of the interest given to the widow in the property and did not, in so many terms, prescribe that she would have a limited interest, she would have no more than a limited interest in the property under the Hindu Law 'as it stood prior to the enactment of the Act and hence a provision in the instrument prescribing that she would have only a limited interest in the property would be, to quote the words of this Court in Nirmal Chand's case (supra), "merely recording the true legal position" and that would not attract the applicability of sub- section (2) but would be governed by sub-section (1) 21 of section 14. The conclusion is, therefore, inescapable that where property is allotted to a widow under an instrument, decree, order or award prescribes a restricted estate for her in the property and sub-section (2) of section 14 would have no application in such a case."
8. In Bai Vajia v. Thakorbhai Chelabhai (1979) 3 SCR 291: the court referred to the earlier judgment in Tulsamma's (AIR 1977 SC 1944) case and said (at p.1000 of AIR) :
"All the three Judges were thus unanimous in accepting the appeal on the ground that Tulsamma's right to maintenance was a pre-existing right, that it was in recognition of such a right that she obtained property under the compromise and that the compromise therefore did not fall within the ambit of sub-section (2) of section 14 of the Act but would attract the provisions of sub- section (1) thereof coupled with the Explanation thereto. With respect we find ourselves in complete agreement with the conclusions arrived at by Bhagwati and Fazal Ali, JJ., as also the reasons which weighed with them in coming to those conclusions."
8-A. Shri Tarkunde particulary relied on the following passage in Bai Vajia v. Thakorbhai's case (AIR 1979 SC 993 at p.1001):
"A plain reading of sub-section(1) makes it clear that the concerned Hindu female must have limited ownership in property, which limited ownership would get enlarged by the operation of that sub-section. If it was intended to enlarge any sort of a right which could in no sense be described as ownership, the expression "and not as a limited owner"
would not have been used at all and becomes redundant, which is against the well recognised principle of interpretation of statutes that the Legislature does not employ meaningless language."
We do not understand the court as laying down that what was enlarged by sub-sec. 1 of S.14 into a full estate was the Hindu woman's estate known to Hindu law. When the court uses the word 'limited estate', the words are used to connote a right in the property to which the possession of the female Hindu may be legitimately traced, but which is not a full right 22 of ownership. If a female Hindu is put in possession of property pursuant to or in recognition of a right to maintenance, it cannot be denied that she has acquired a limited right or interest in the property and once that position is accepted, it follows that the right gets en- larged to full ownership under sec. 14(1) of the Act. That seems to us to follow clearly from the language of sec. 14(1) of the Act.
9. In Sellammal v. Nellammal, AIR 1977 SC 1265, the court held that property allotted to a Hindu widow in lieu of her maintenance in recognition of her pre-existing right became her the asbolute property.
10. In Santnanam v. Subramanya, AIR 1977 SC 2024, it was again held that property in the possession of a widow of the deceased coparcener which had been allotted to her for life in lieu of maintenance without power of alienation became her absolute property under s. 14(1) of the Act with powers of alienation.
11. In Krishna Das v. Venkayya, AIR 1978 SC 36 1, it was reiterated that where a widow was put in possession of joint family property in lieu of her right to maintenance, her right to the property became enlarged into an absolute estate under s. 14(1). We, therefore, think that it is rather late in the day for Shri Tarkunde to contend that the Khurana land which was given to Gulwant Kaur in lieu of maintenance did not vest in her absolutely.
12. We may finally refer to a recent decision of this Court in Jagannathan Pillai v. Kunjithapadam Pillai, [1987] 2 SCC 572 where Thakkar and Ray, JJ. pointed out (para 5).
" On an analysis of Section 14(1) of the Hindu Succession Act of 1955, it is evident that the legislature has abolished the concept of limited ownership in respect of a Hindu female and has enacted that any property possessed by her would thereafter be held by her as a full owner. Section 14(1) would come into operation if the property (Sic) at the point of time when she has an occasion to claim or assert a title thereto. Or, in other words, at the point of time when her right to the said property is called into question. The legal effect of section 14(1) would be that after the coming into 23 operation of the Act there would be no property in respect of which it could be contended by anyone that a Hindu female is only a limited owner and not a full owner. (We are for the moment not concerned with the fact that sub- section(2) of section 14 which provides that Section 14(1) will not prevent creating a restricted estate in favour of a Hindu female either by gift or will or any instrument or decree of a civil court or award provided the very document creating title unto her confers a restricted estate on her). There is nothing in Section 14 which supports the proposition that a Hindu female should be in actual physical possession or in constructive possession of any property on the date of the coming into operation of the Act. The expression 'proposed' has been used in the sense of having a right to the property or control over the property. The expression 'any property possessed by a Hindu female whether acquired before or after the commencement of the Act' on an analysis yields to the following interpretation:
(1) Any property possessed by a Hindu female acquired before the commencement of the Act will be held by her as a full owner thereof and not as a limited owner.
(2) Any property possessed by a Hindu female acquired after the commencement of the Act will be held as a full owner thereof and not as a limited owner."
In that case also the husband wrote a letter to wife entrusting a land to her as a maintenance, subsequently he conceived the idea of selling the said land and sold the said land. The said purchaser instituted a suit against the wife which ultimately reached the Apex Court and the Apex court holding 24 that, section 14(1) of Hindu Succession Act is applicable and wife though has limited interest but she become full owner in view of the said Act.
18. The Hon'ble Supreme Court in a decision AIR 1977 SC 1944 in case of Tulsamma and Ors. Vs. Sesha Reddy (Dead) by Lrs. referring to various decisions and provision of Hindu Succession Act it is held at para No.30 as under:
30. It is in the light of these circumstances that we have now to interpret the provisions of s. 14(1) & (2) of the Act of 1956. Section 14 of the 1956 Act runs thus:
"14. (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.--In this Sub-section, "property"
includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under 25 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."
This Court has interpreted the scope and ambit of s. 14(1) and the Explanation thereto on several occasions and has pointed out that the object of the legislation was to make revolutionary and far-reaching changes in the entire structure of the Hindu society. The word "possessed" used in s. 14(1) has also been interpreted by this Court and it has been held that the word has been used in a very wide sense so as to include the state of owning or having the property in one's power and it is not necessary for the application of s. 14 (1) that a Hindu woman should be in actual or physical possession of the property. It is sufficient if she has a right to the property and the said property is in her power or domain. In S.S. Munnalal v.S.S. Rajkumar (1) it was held that mere declaration of the share of the widow passed only an of her share under a preliminary decree would fall within the ambit of s. 14(1) and even though the widow did not get actual possession of the property until a final decree is passed she would in law be deemed to be in possession of the property. In that case, the High Court had held that mere declaration of the share of the widow passed only an inchoate interest to her and she never came to possess the share within the meaning of s. 14 of the Act and there- fore the property remained joint family property. This Court reversed the judgment of the High Court holding that once a preliminary decree was passed in favour of the widow granting her a share in the property she must be deemed to be in possession of the property in question. Their Lordships emphasised that the words "possessed by" used in s. 14(1) clearly indicated that such a situation was envisaged by the Legislature. White interpreting the provisions of s. 14 the Court also pointed out that the 1956 Act was a codifying enactment which had made far-reaching changes in 26 the structure of the Hindu society and the object was to sweep away traditional limitations placed on the rights of the Hindu women. In this connection, the Court observed as follows:
"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 ..........Normally a right declared in an estate by a preliminary decree would be regarded as property, and there is nothing in the context in which S.14 occurs or in the phraseology used by the Legislature to warrant the view that such a right declared in relation to the estate of a joint family in favour of a Hindu widow is not property within the meaning of S.14 In the light of the scheme of the Act and its evolved purpose it would be difficult, without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a person under a decree for partition is not a right to property. If under a preliminary decree the right in favour of a Hindu male be regarded as property the right declared in favour of a Hindu female must also be regarded as property.
Earlier the Court observed in that very case as under:
"By S.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, or in any other manner 27 whatsoever. By s. 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."
19. Further the trial court and first appellate court have also considered the decision of this court in ILR 1991 Karnataka page 2877 (Smt.Babalabai Vs Union of India) 2) ILR 2003 Kar. No.3188, (Yemanappa Dudappa Marve and Ors. Vs Yellubai and Ors.) and 3) ILR 2006 Kar. 156 (Sri. Santosh and others Vs Smt.Saraswathibai and others) which also considered the case of giving property to the wife in recognition of her pre-existing right in lieu of maintenance and also effect of any such compromise decree and held that such a limited right of the wife will blossom into full right in view of Section 14(1) of Hindu Succession Act, 1955. If the right is created first time, then only it calls under section 14(2) of Hindu Succession Act, 1955.
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20. The learned counsel for appellant has relied upon decision of Apex Court in Civil Appeal No.4153 of 2002 in Sharat Subramaim Vs Soumi mazumadar dated:
20-04-2006. On perusing the said Judgment it is evident that, the Hon'ble Supreme Court has referred its earlier decision in V.Tulsamma's case supra has analyzed the conditions that must be satisfied under section 14(2) of Hindu Succession Act. The Apex Court has referred to its earlier other decisions also and has held that when the properties were given to wife in recognition and in lieu of her right to maintenance which was pre-existing right, consequently it fell out of ambit of section 14(2) of Hindu Succession Act as a result she became full owner. So this decision will not help the appellant in any way.
21. Learned counsel for appellant further relied on decision of Hon'ble Supreme Court reported AIR 1997 SC 3082 (Vankamamidi Venkata Subba Rao Vs 29 Chatlapalli Seetharamaratna). But again the facts and principles stated in that case are not helpful to the appellant. Because in that case, the right is acquired to the wife for the first time under the document i.e. compromise decree and there also she has admitted that she has only limited right. In that case there was a document which get reflected in subsequent document to which she was a party. Therefore, the said decision is not applicable to the appellant's case. Learned counsel lastly relied upon another decision of this court reported ILR. 2013 Kar. 1711 (Sri.Vishwaraj and another Sri.B.M.Bairappa and others). But again on bare reading of the said decision it in fact goes against the appellant. It is clearly held in that decision, that if the acquisition of the property cannot have any connection or relation to any kind of antecedent right or interest in the property of the female Hindu and such acquisition is condition by restricted clause she will not become absolute owner. But if the acquisition of the properties 30 is referable to a pre-exiting right or interest of the property the limited ownership becomes full-fledged ownership on coming into force of the 14(1) of Hindu Succession Act. It is clearly held that if a Hindu woman had any preexisting right or interest in the property the inter position of any instrument will not affect the operation of Section 14(1) of Hindu Succession Act and the property will be held by female as absolute owner. The High Court has also referred to decision of Apex Court in Tulsamma's case referred supra. In that case also the Court held that, the right of Hindu female to get maintenance out of the joint family property is an indefeasible right and in that case also in a compromise decree a property was given, which was in her possession, Court held that she has become full owner. In that case answering the points for determination No.1 & 2 held that, the document to be construed as one falling under section 14(1) and not under section 31 14(2) of the Hindu Succession Act. So this decision in fact help the defendant.
22. On the other hand, the learned counsel for the respondent has produced the certified copies of Judgment in O.S. No.78/1992 dated: 17-04-1997 passed by the Prl. Civil Judge at Raichur wherein the brothers and mother of this appellant have filed a suit for partition wherein this appellant and respondent were also parties. In that Judgment also there is a reference to the compromise decree in O.S.No.41/1989 and the validity of the said decree was also challenged. The court held that the said decree cannot be nullified. The said Judgment was passed on 17th April 1997. Against that, the plaintiffs in that suit preferred Regular First Appeal wherein this Court in RFA No.460/1997 by Judgment dated: 15th June 1998 held that, this respondent wife who was the respondent No.4 in that case can exercise her right over 4 acres and odd in 32 survey No.138B and dwelling house which was given to her and the said appeal also came to be dismissed.
23. It is also pertinent to note that, the learned counsel for the respondent has also produced certified copy of the Judgment in O.S.No.225/1997 dated: 31- 03-2004 on the file of Prl. Civil Judge Sindhanur. In the said Judgment it clearly indicates that, this appellant Dodda Rangareddy and his father filed the suit against this defendant contending that, his wife has no right to alienate the said land. There also they have contended that, in view of compromise decree passed in O.S. No.41/1989 that will not create any interest in her wherein the court considered applicability of section 14(1) & section 14(2) of Hindu Succession Act and held that, the said properties given in lieu of maintenance to her become her absolute properties as owner and she has got every right to alienate the said properties. 33 Accordingly the said suit also came to be dismissed. It appears no appeal is filed against the said Judgment.
24. The trial court and first appellate court have considered all these aspects and have given a finding based on the established principles under section 14(1) & section 14(2) of Hindu Succession Act 1955 and also by relying on the decision cited by both sides both courts have clearly come to the conclusion that, the properties viz land and house were given by the appellant to his wife in recognition of her pre-existing right of maintenance. He has filed a suit seeking relief restraining her from alienating the suit properties which also negatived. In fact he has challenged the very compromise decree which was also negatived. His brothers, mother, father including himself have also made a challenge to said compromise decree which was negatived holding that the wife has got a pre-existing right of maintenance and she has become full owner of 34 the said properties. Therefore, simply because the said properties were given to wife in lieu of maintenance which is her pre-existing right by way of compromise decree even though, there is a restriction clause but that decree is not conferring any new right but those properties were given in recognition of her pre-existing right. Then in view of the principles stated by the Apex Court regarding enlargement of limited right into a full ownership right when the properties were given in lieu of maintenance in recognition of wife pre-existing right of maintenance then section 14(2) of Hindu Succession Act has no application. Her limited right will blossom into full ownership in view of section 14(1) of Hindu Succession Act. Accordingly I answer substantial question of law in both appeals in the affirmative. Consequently both the appeals being devoid of merits are liable to dismissed.
Therefore I pass the following:
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ORDER The appeals in RSA Nos.7254/2013 and 7255/2013 are dismissed.
The Judgment and decree passed by the first appellate court in R.A. No.16/2005 dated: 04-04-2013 & R.A. No.25/2009 dated: 04-04-2013 are hereby confirmed.
Parties to bear their own costs.
Send back the secured records to concerned courts.
Sd/-
JUDGE MNS.
CT/VK