Orissa High Court
Suba Bewa vs Gauranga Chandra Swain And Anr. on 11 August, 1970
Equivalent citations: AIR 1971 ORISSA 242
JUDGMENT R.N. Misra, J.
1. The plaintiff is In appeal against a reversing judgment of the learned Subordinate Judge, Kendra-para. She had sued for declaration of her title and confirmation of possession over 31/2 decimals of homestead situated within the Kendrapara town. She had also sued for injunction. According to her, her husband late Bhagaban and Mali, the deceased father of the defendant No. 2 were brothers and were living jointly.
They were owners of 14 decimals of land which was the ancestral property and has been described in the 'Kha' Schedule. Admittedly, the plaintiff became a widow long before 1937, but was living along with Mali and thereafter with the defendant No. 2. She was being maintained from out of the income of the ancestral land. The defendant No. 2 sold two decimals out of the aforesaid land, to different persons. When the defendant No. 2 fell ill, he found it difficult to maintain the plaintiff. Therefore, in March. 1941, the defendant No. 2 set apart 4.J decimals of land out of plots Nos. 173 and 165 for the maintenance of the plaintiff and as evidence of the transaction, on 10th March, 1941, the defendant No. 2 executed an agreement (Ext. 1). A house on the 'Ka' schedule property was given to her and she lived therein raisins vegetables and other crops and was maintaining herself out of it. On 26th June, 1944, the plaintiff along with the defendant No. 2 sold a part of it to one Jagu Sahu. The plaintiff claims that after the Hindu Succession Act came into force she has become an absolute owner with full title. On 18-6-62, the defendant No. 1 on the assertion that he was the purchaser of 2.5 decimals out of the disputed property on the basis of a transfer from the defendant No. 2 tried to possess the same. The plaintiff claims that she has become a full owner under the Act. Even if there was any difficulty in her title she has perfected the same by being in possession for more than the statutory period.
2. The defendant No. 1 alone filed his written statement and contested the suit. His case was that the defendant No. 2 was working as an apprentice under a pleader's clerk. The plaintiff was all along living with her own parents and the defendant No. 2 never maintained her. The defendant No. 2 sold 6 decimals of land for a consideration of Rs. 1850/- and executed a registered sale deed in favour of the defendant No. 1 on 21-4-62. The defendant No. 2 wanted to build a house on the remaining property. But before he could do so, he continued to possess the house conveyed to the defendant No. 1 under the sale deed of 21-4-62 with the permission of the defendant No. 1. The plaintiff was never in possession of the property in dispute.
3. The learned trial Judge recorded the following findings :--
(i) The settlement of 1941 (Ext. 1) is a genuine document. It is at the record of a family settlement and did not require registration;
(ii) the disputed property had been given to the plaintiff in lieu of maintenance; and
(iii) After the coming into force of the Hindu Succession Act, the plaintiff has become an absolute owner with full title.
4. The learned trial Judge did not record a finding on the question of adverse possession as he found the same to be academic. On his aforesaid findings, he decreed the suit.
5. Before the lower appellate Court, the defendant No. 1 in appeal contended (1) that the disputed property had never been set apart for the maintenance of the plaintiff; (2) Ext. 1 was an antedated and fabricated document. At any rate it required registration and in the absence of registration it could not be used as a document of title (3) The plaintiff could not acquire absolute title under Section 14 of the Hindu Succession Act.
6. The learned appellate Judge came to hold in agreement with the learned Munsif that Ext. 1 was a genuine document. He however, held that it required registration as it created a right In immovable property. He examined the evidence for the plea of adverse possession and negatived it. He also found that by virtue of Section 14 of the Hindu Succession Act, the plaintiff did not acquire title to the property. On these findings, he reversed the decree of the trial court and dismissed the suit.
7. The plaintiff is in appeal against this reversing decree,
8. Mr. Ranjit Mohanty, learned counsel for the plaintiff-appellant, contends that the lower appellate Court went wrong in holding that the document Ext. 1 required registration. It is true, Mr. Mohanty contends, in the case of Sahu Madho Das v. Mukand Ram. AIR 1955 SC 481, their Lordships of the Supreme Court had stated that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary. But the principle can be carried further and so strongly do the Courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation future disputes which might ruin them all, that they have no hesitation in taking the next step and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges, that the sole and absolute title to all the properties resides in only one of their number and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present.
9. The selfsame question came up for examination before their Lordships of the Supreme Court in the case of Ram Charan Das v. Giria Nandini Devi, AIR 1966 SC 323. Mudholkar, J. who spoke for the Court stated :--
"Here the transaction in question is a family settlement entered into by the parties bona fide for the purpose of putting an end to the dispute among family members. Could it be said that this amounts to a transfer of or creation of an interest in property? For, unless it does the action of Kadma Kuar would not fall within the purview of the aforesaid clause of Section 37. In Mst. Hiran Bibi v. Mst Sohan Bibi, AIR 1914 PC 44, approving the earlier decision in Khunni Lal v. Govind Krishna Narain ILR 33 All 356 (PC), the Privy Council held that a compromise by way of family settlement is in no sense an alienation by a limited owner of family property. This case, therefore, would support the conclusion that the transaction does not amount to a transfer. Mr. Sinha, however, contends that the transaction amounts to creation of an interest by the ward in property which was under the superintendence of the Court of Wards and in support of his contention relies on Man Singh v. Nowlakhabati. 53 Ind App. 11 = (AIR 1926 PC 2). In the first place once it is held that the transaction being a family settlement is not an alienation, it cannot amount to the creation of an interest. For as the Privy Council pointed out in Mst. Hiran Bibi's case, AIR 1914 PC 44 in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. It is not necessary as would appear from the decision in Rangasami Gounden v. Nachiappa Gounden 46 Ind. App. 72 = (AIR 1918 PC 196) that every party taking benefit under a family settlement must necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground as, say affection. In the second place, in the case relied upon by Mr. Sinha there was no question of the transaction being a family settlement. It was sought to be supported upon the ground that it was a surrender. The Privy Council, however, held that it was not a bona fide surrender evidently because the widow was to get a very substantial amount for maintenance from the re-versioners in whose favour she had purported to surrender the estate and also held that there was in fact no necessity for a surrender of interest of the widow."
10. Thus in their Lordships' view what is necessary is that the arrangement evidenced by Ext. 1 should have been preceded by a claim or even a semblance of a claim on some ground. As indicated in paragraph 11 of the judgment which has been extracted above, even a semblance of a claim on the ground of affection can be the basis for arriving at a family settlement.
11. Admittedly, the property in question was ancestral in the hands of the defendant No. 2. The plaintiff as a widow of the family was entitled to be maintained and the joint property was liable for such maintenance. Therefore, when a dispute is raised on the question of maintenance at the instance of the plaintiff who has a right to be maintained out, of the family estate, it cannot be said that her claim is not one which can give rise to a family settlement. It is quite possible that the widow had no title to any part of the property, that she had a right in law which could work out to bind the ancestral properties in the hands of the defendant No. 2. In such background it indeed becomes difficult to accept the reasonings of the learned appellate Judge that Ext. 1 cannot be taken to be a family settlement and the claim of the plaintiff on the footing that Ext. 1 is the title deed must be overruled for want of registration. For the reasons which I have given above, I would hold, in accepting the contention of Mr. Ranjit Mohanty, that Ext. 1 was a family settlement and did not require registration under the Registration Act. On the concurrent findings that Ext. 1 is genuine and on my finding that it did not require registration, it would follow that Ext. 1 can form the basis of the claim by the plaintiff.
12. The next question that arises is relating to the effect of Section 14 of the Hindu Succession Act. Section 14 of the Act prescribes :--
"(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 stridhan 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 or order or award prescribe a restricted estate in such property."
13. The material portion of Ext. 1 may be translated thus:--
"The donee is my uncle Bhagaban Mahala's widow. The said Bhagaban while living jointly with my father in one common mess, died leaving behind the widow and my father Mali Mahala about 28 years before. The widow was being maintained by my father and after him by me, she has been living in the joint family as a member and my father and after him myself have met all her maintenance. But as I have been constantly ill and am not in a position to make any income, I have not been able to provide maintenance for the widow. On that account, the relationship between myself and the donee has been strained. She has been raising demands for maintenance, but I am incapable of giving her the same. Therefore, in lieu of maintenance, I create life interest in the widow for her maintenance and give her the property described in Schedule along with the house standing thereon., so that during her life time she would enjoy the same in lieu of her maintenance. In her own right from today, the donee widow shall enjoy the property and continue to possess it. I shall have no right to raise any objection about the manner of possession by the widow ........................"
14. The scope of the two sub-sections of Section 14 has been the subject-matter of a series of judicial pronouncements. As has been indicated in the case of Eramma v. Veerupana, AIR 1966 SC 1879:--
"The property possessed by a female Hindu, as contemplated in the section is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act. It may be noticed that the Explanation to Section 14(1) sets out the various modes of, acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title, however restricted the nature of her interest may be. The words "as full owner thereof and not as a limited owner" as given in the last portion of Sub-sec-tion (1) of Section 14 clearly suggest mat the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. In other words Section 14(1) of the Act contemplates that a Hindu female who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the property, by virtue of this section. The object of the section is to extinguish the estate ailed 'limited estate' or 'widow's estate in Hindu Law and to make a Hindu woman, who under the old law would have been only a limited owner a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder. The Explanation to Sub-section (1) of Section 14 defines the word 'property' as including 'both movable and immovable property acquired by a female Hindu by inheritance or devise.................." Subsection (2) of Section 14 also refers to acquisition of property. It is true that the Explanation has not given any exhaustive connotation of the word 'property' but the word 'acquired' used in the Explanation and also in Sub-section (2) of Section 14 clearly indicates that the object of the section is to make a Hindu female a full owner of the property which she has already acquired or which she acquires after the enforcement of the Act. It does not in any way confer a title on the female Hindu where she did not in fact possess any vestige of title. It follows, therefore, that the section cannot be interpreted so as to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser".
15. The scope of Sub-section (2) of Section 14 and the field of the two respective sub-sections have also been the subject-matter of judicial pronouncements. It has been held that if the last male holder intended that the female should take only a limited interest, the Legislature did not intend to interfere with that intention and has clearly saved such transaction by virtue of sub-section (2). According to Sub-section (2) of Section 14 if the gift or will or any other instrument, decree or order of a Civil Court or an award under which the female Hindu acquired property, srants or only a restricted estate then she takes the property according to the terms of the deed and does not become full owner by application of Sub-section (1). The expression "instrument" in Sub-section (2) would certainly cover Ext. 1. I have already extracted the terms of Ext. 1 Under it a life estate was contemplated in favour of the plaintiff. Thus, in face of Ext. 1 it must be held that this case comes squarely within the purview of Sub-section (2) and not of Sub-section (1) read with the Explana tion. The conclusion to follow is that the plaintiff did not acquire a full title to the property by virtue of the statutory provisions contained in Section 14(1) of the Hindu Succession Act. I
16. The plaintiff had sued for her title, possession and injunction. Her limited title under Ext. 1 is bound to be sustained though she fails to get a full title on the footing of Section 14 of the Hindu Succession Act. Once Ext. 1 is found to be genuine and valid, it was not open to the defendant No. 2 to make alienation of any property covered under Ext. 1 in favour of the defendant No. 1. The plaintiff would thus be entitled to declaration of her title in the limited sense on the basis of Ext. 1 and she would also be entitled to protection of her possession.
17. Coming to the question of possession, the learned appellate Judge came to find against the plaintiff after ruling out Ext. 1 from consideration. He had stated:--
"If at all the Ext. 1 would have been admissible in evidence, the position that would have emerged is that both the plaintiff and the defendant No. 2 would have been co-sharers with respect to the entire suit plot. In such a case the plaintiff would have succeeded on showing that she completely ousted the defendant No. 2 from her portion of the suit land. But such a position does not emerge from the evidence adduced on the side of the plaintiff. There is no definite evidence that the plaintiff has been possessing any definite portion by ousting the defendant No. 2 completely from that land."
The learned appellate Judge had embarked to record a finding on the question of adverse possession in paragraph 14 of his judgment on the footing that the trial Court had missed to record that finding. He, however, did not come to consider the question of possession independent of the question of adverse possession. The trial Court came to record the following finding:--
"On a consideration of the evidence adduced by either side, I find that plaintiff has proved that she is in possession of the suit land throughout even up-till now."
This finding was arrived at after considering the entire evidence. The learned appellate Judge confined his consideration only to the question of adverse possession. I think it appropriate to hold that the plaintiff has been in possession of the property conveyed to her in terms of Ext. 1. I would, therefore, conclude that the plaintiff has been in possession of the property which was given to her in lieu of mainenance under Ext. 1 till the date of suit.
18. I have already held that she has been in possession. I would, therefore, give her a decree for confirmation of her possession. During her lifetime she would also be entitled to the benefit of injunction.
19. Thus, the plaintiff must succeed in the suit. The appeal has to be allowed, the judgment of the appellate Court is vacated. As the trial Court had given her a decree for full title, I do not propose to restore the same. The decree which shall be passed in favour of the plaintiff shall be :--
"The plaintiff is entitled to be in possession during her lifetime on terms specified in Ext. 1. Her possession is confirmed. The defendant No. 1 is restrained by permanent injunction enuring during the lifetime of the plaintiff from interfering with her possession in regard to the disputed property. It is made clear that the plaintiff does not have full title to the property by operation of Section 14(1) of the Hindu Succession Act. That claim is negatived."
Both parties shall bear their own costs throughout.