Karnataka High Court
Shekarappa Kallappa Gunjal vs Prakashgouda Mallanagouda ... on 14 August, 2019
Equivalent citations: AIRONLINE 2019 KAR 1716, (2019) 6 KANT LJ 521
-1-
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14 T H DAY OF AUGUST 2019
BEFORE
THE HON'BLE MR.JUSTICE P.G.M. PATIL
R.S.A.NO.52/2007 (DEC & INJ)
BETWEEN:
1. SHEKARAPPA KALLAPPA GUNJAL
AGE 65 YEARS
2. SHIVAPPA SHEKARAPPA GUNJAL
AGED 38 YEARS
3. MEENAKSHI YALLAPPA ANNIKERI
AGE 45 YEARS
4. MAHADEVAPPA SHEKARAPPA GUNJAL
AGE 40 YEARS
ALL ARE AGRICULTURIST
R/O MANTUR
TALUK HUBLI-581158 ... APPELLANTS
(BY SRI.G.MEERA BAI, ADV.)
-2-
AND
1. PRAKASHGOUDA MALLANAGOUDA
RAMANGOUDAR
AGE 21 YEARS, OCC: STUDENT
R/AT C/O VR DODDALINGANAGOUDAR
SHIRGUPPI VILLAGE
TALUK HUBLI
2. NIJAGUNIGOUDA MALLANAGOUDA
RAMANAGOUDAR
AGE: 10 YEARS, OCC: STUDENT
MINOR REPTD. BY RESPONDETN NO.4
NATURAL MOTHER FOR SELF AN ON
BEHALF OF THE MINOR
R/AT C/O VR DODDALINGANAGOUDAR
SHIRGUPPI VILLAE, TALUK HUBLI
3. MANJULA D/O MALLANAGOUDA
RMANAGOUDAR
AGE: 15 YEARS, OCC: HOUSEHOLD
MINOR REPTD. BY RESPONDETN NO.4
NATURAL MOTHER FOR SELF AN ON
BEHALF OF THE MINOR
R/AT C/O VR DODDALINGANAGOUDAR
SHIRGUPPI VILLAE, TALUK HUBLI
4. DEVANNAVVA W/O MALLANAGOUDA
RAMANAGOUDAR
AGE: 44 YEARS, OCC: HOUSEHOLD
R/AT C/O VR DODDALINGANAGOUDAR
SHIRGUPPI VILLAE
TALUK HUBLI. ... RESPONDENTS
(BY SRI. B.S.KAMATE, ADV. FOR R1 TO R4)
-3-
RSA FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED:29.9.2006
PASSED IN R.A.NO.52/2005 ON THE FILE OF
THE II ADDL.CIVIL JUDGE (SR.DN.), HUBLI,
ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGEMENT AND DECREE
DATED:14.2.2005 PASSED IN
OS.NO.297/1999 ON THE FILE OF THE IV
ADDL.CIVIL JUDGE (JR.DN.), HUBLI.
RESERVED FOR JUDGMENT ON: 10/07/2019
JUDGMENT PRONOUNCED ON : 14/08/2019
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff appellant being aggrieved by the judgment and decree dated 29/9/2006 passed in RA No.52/2005 on the file of the II Additional Civil Judge (Sr.Dn), Hubli, reversing the judgment and decree dated 14/2/2005, in O.S.No.297/1999 on the file of IV Addl. -4- Civil Judge (Jr.Dn.) Hubli, has filed this regular second appeal.
2. The status of the parties is referred to as per their ranking before the trial Court.
3. The original plaintiff Smt. Shantavva W/o Shekarappa Gunjal filed the suit bearing O.S.No.297/1999 seeking declaration that she is the absolute owner of the suit property by virtue of a deed of maintenance and that the loan borrowed by the defendants is not binding on her.
4. It is the case of the plaintiff that her father Basanagouda executed a registered maintenance deed (Potige patra) in her favour on 31/1/1961 in respect of the suit schedule properties as she had no support from her husband's side. Defendants 1 to 3 are the sons of the brother of the plaintiff and defendant No.4 is his wife. She has alleged that on the death of the brother of -5- the plaintiff, defendant Nos.1 to 3 colluding with revenue authorities got their names mutated in the record of rights of the suit land on 31/10/1991 under M.E.No.1310 and that the revenue authorities without issuing of notice and without holding preliminary enquiry and without hearing the plaintiff have mutated the names of the defendants. She has further contended that she is the absolute owner in possession and enjoyment of the suit property. She had also filed another suit for partition in O.S.No.94/99 in respect of remaining portion of property, namely Block No.178 measuring 11 acres 14 guntas situated at Nagarahalli village of Hubli Taluk. She has further contended that defendants at the instigation of the father of defendant No.4 trying to dispossess her from the suit land. She had also filed private Criminal Case in PC No.73/99. -6- Therefore, she was constrained to file the said suit for the relief stated above.
5. In pursuance of summons, defendants appeared before the trial Court and filed written statement. They contended that the description of the suit property is incorrect and incomplete. They have denied the averments made in the plaint. They have questioned the factum, execution, attestation and legality of the deed of maintenance. They have further contended that the plaintiff was never in possession of the suit property in any capacity and that the maintenance deed is a sham document, never intended to be acted upon and that it is invalid, opposed to Karnataka Village Offices Abolition Act and public policy. The entry made on 31/10/1991 is legally valid and that the plaintiff cannot challenge it after lapse of time. They also contended that the Lower Court has no jurisdiction to pass the -7- decree in respect of the revenue entries and the value of the suit property is more than Rs.50,000/- and hence, the Lower Court has no jurisdiction to entertain the suit. Therefore, sought for dismissal of the suit with compensatory cost.
6. On the basis of pleadings of the parties, the trial Court framed the following issues and additional issues:-
1. Whether the plaintiffs proves the ownership, possession and vahivat of the suit property since from the execution of the Potagi Patra dated 30.1.1961?
2. Whether the plaintiff also proves that the mutation entry erected behind the back? -8-
3. Whether the plaintiff proves the interference placed by the defendants?
4. Whether the suit is properly valued?
5. Whether the court got jurisdiction to entertain the suit?
6. Whether the plaintiff entitled for the relief of declaration, injunction and also mandatory injunction?
7. What order or decree Additional Issues:
1. Whether the plaintiff proves that the defendants have no right to borrow the loan on suit schedule property?
2. Does the loan alleged to be raised by the defendants on the suit schedule property had no bindings on plaintiff?"-9-
7. In support her case, plaintiff got examined 7 witnesses as PWs-1 to 7 and got marked 16 documents as Ex.P1 to Ex.P16. The defendants got examined one witness and got marked 11 documents as Exs.D1 to D11.
8. It appears during the pendency of said suit the original plaintiff died and her LRS have come on record.
9. The trial Court after hearing both the parties answered the additional issues and issue Nos.1 to 5 in affirmative and issue No.6 partly in the affirmative and proceeded to partly decree the suit. The trial Court declared that the plaintiff is the lawful owner of the suit property, land bearing Block No.178 as per the deed Potagi patra and that the loan borrowed by the defendants on the suit property is not binding on her. It was also further declared that M.E.No.1310 dated 31/10/1991 is illegal and not binding on the plaintiff
- 10 -
and further granted decree for permanent injunction restraining the defendants from creating hurdles or interference with the peaceful possession and enjoyment of the suit property of the plaintiff.
10. The defendants being aggrieved by the said judgment and decree filed regular appeal No.52/2005 on the file of the II addl. Civil Judge (Sr.Dn), Hubli. The Appellate Court secured the Lower Court records. Heard the learned counsel for the parties and allowed the appeal by the impugned judgment dated 29/9/2006 and consequently, dismissed the suit of the plaintiff.
11. The plaintiff being aggrieved by the impugned judgment passed by the First Appellate Court has filed this Regular Second appeal on the ground that the Lower Appellate Court has committed an error in not considering Ex.P2 the Registered maintenance deed (Potagi Patra).
- 11 -
12. The plaintiff has specifically pleaded that the original deed was destroyed and as such secondary evidence has been produced. The Lower Appellate Court ought to have noticed that the maintenance deed has been executed by the plaintiff's father, wherein it is specifically stated that the suit property is handed over to the plaintiff for her maintenance.
13. It is also contended that the Lower Appellate Court has committed an error in disbelieving the certified copy of the registered maintenance deed Ex.P2 and that it was not acted upon. The Lower Appellate Court also committed an error in holding that the limited right of the plaintiff for maintenance does not get ratified to absolute right as provided under Section 14(2) of the Hindu Succession Act.
- 12 -
14. This Court after hearing both the learned counsel admitted the appeal for consideration of the following substantial questions of law:-
i. Whether the learned Judge of the lower appellate court has committed an error in law in recording a finding that the plaintiffs have not laid sufficient foundation for leading secondary evidence in the form of certified copy of a registered document when the trial court on an application filed for amendment of the pleadings of the plaint had allowed the pleadings and had permitted the plaintiffs to produce secondary evidence for the reason that the original had been destroyed in fire accident at the house of the plaintiffs
- 13 -
and therefore it was a case within the scope of clause [c] of section 65 of the Indian Evidence Act, 1872?
ii. Whether the lower appellate court has rightly appreciated the provisions of section 90 of the Indian Evidence Act, 1872 and can come to the rescue of the plaintiffs for the purpose of calling in aid the presumption in respect of Exhibit.P2 dated 30.1.1961 - a document which was not less than 38 years at the time of filing of the suit and therefore whether was justified in reversing the finding of the trial court not only to permit leading of secondary
- 14 -
evidence but also decreeing the suit on the basis of such document?
Apart from the substantial questions raised in the memorandum of appeal the following substantial questions of law were also raised which read as under:
i. Whether the Lower Appellate Court has committed an error in disbelieving Certified Copy of the Registered Maintenance-Deed/potige patra marked as Ex.P2 on the ground that the secondary evidence is not permissible?
ii. Whether the Lower Appellate Court
has committed an error in holding
that Ex.P.2 Registered Maintenance
Deed is not acted upon?
- 15 -
iii. Whether the Lower Appellate Court has committed an error in holding that the limited right of the plaintiff for maintenance does not get ratified to an absolute right as provided under Sec.14(2) of the Hindu Succession Act.
iv. Whether the Lower Appellate Court has committed an error in holding
that the land is a service inam land in the absence of there being any pleading/evidence to that effect? v. Whether the Lower Appellate Court has committed an error in dismissing the suit for declaration in its entirety even though the plaintiff is entitled for a share in the property?
vi. Whether the Lower Appellate Court has committed an error in not drawing the presumption as provided under
- 16 -
Sec.90 of the Indian Evidence Act in respect of Ex.P.2 dated 30.01.1961?
vii. Whether the findings of the Lower
Appellate Court are arbitrary &
capricious?
viii. Whether the Lower Appellate Court has committed an error in reversing the judgment & decree passed by the trial court?
15. This Court after hearing the learned counsel appearing for the parties disposed of this appeal by judgment dated 23/9/2014 whereby the appellants were held entitled for 5 acres of land towards southern portion and the remaining 4 acres on the northern portion shall be made available to the respondents. The said judgment and decree was challenged before the Hon'ble Supreme Court of India in Civil appeal
- 17 -
No.9409/2016. The said appeal was disposed of by the Hon'ble Supreme Court of India on 19/9/2016 by which the Hon'ble Supreme court set aside the judgment and decree passed by this Court and restored the appeal to the file of this Court and directed the parties to appear before this Court on 28/10/2016. This Court was requested to dispose of the appeal as expeditiously as possible by dealing with all the contentions raised by the rival parties.
16. Heard the learned counsel for the parties on the above stated substantial questions of law.
17. Learned counsel Smt. G.Meera, appearing for the appellants vehemently submitted that the suit filed by the plaintiff is based on the registered deed of maintenance executed by her father and therefore, in view of Section 14(1) of the Hindu Succession Act, she would become absolute owner of the suit property. The
- 18 -
learned counsel further submitted that Ex.P2 is the certified copy of the registered maintenance deed which was exhibited without any objections. The plaintiff got amended the plaint stating that the original deed was burnt in the accidental fire in the house, and therefore, foundation was laid for production of secondary evidence in the pleadings itself. Therefore, the First Appellate Court ought to have considered Ex.P2 as proof and on that basis, ought to have held that the plaint has become absolute owner of the suit property by virtue of Section 14(1) of Hindu Succession Act. Learned counsel further submitted that the amendment of the plaint relates back to the date of presentation of plaint, and therefore, finding recorded by the First Appellate Court that the secondary evidence is not permissible in the present case is erroneous. The learned counsel also further submitted that the plaintiff
- 19 -
had pre-existing right of maintenance in the suit property which was the absolute property of her father and her father executed the said deed of maintenance/ Potagi patra for the maintenance of the plaintiff and it is also pertinent to mention that at that time, the plaintiff was minor though married. Therefore, the plaintiff had preexisting right of maintenance in the property of her father.
18. Per contra, Sri. B.S.Kamate, the learned counsel for the respondents submitted that the suit land is inam land governed by Inams Abolition Act and Village Offices Abolition Act. Further that the Potagi patra was never acted upon and the revenue entry in respect of suit land were continued in the name of the father Basavanagounda and after his death, the name of the defendant Mallanagouda came to be mutated. Subsequently, the land has been regranted in favour of
- 20 -
the defendant by the competent authority and therefore, the father of the plaintiff had no right to execute Ex.P2 or to alienate the suit land. Lerned counsel further submitted that Section 14(2) of the Hindu Succession Act is applicable in the case and not Section 14(1) of the Act.
19. Under the first substantial question of law formulated by this Court, this court has to examine as to whether the First Appellate Court has committed an error in law in recording the finding that the plaintiffs have not laid sufficient foundation for leading the secondary evidence in the form of certified copy of registered document inspite of the fact that the plaintiff had filed amendment application before the trial Court and the same was allowed and pleadings were permitted to be amended. It is also admitted that by virtue of amendment, the plaintiff has pleaded that the original
- 21 -
deed had been destroyed in the fire accident in the house of the plaintiff, and therefore, it was a case within the scope of Section 65(c) of the Indian Evidence Act 1872. Even the second substantial question of law framed by this Court refers to Ex.P2-the certified copy of the registered maintenance deed in respect of which whether the presumption can be raised under Section 90 of the Indian Evidence Act. Under the Additional substantial question of law at Sl.Nos.12 and 6, the same question as to whether Ex.P2-certified copy of the registered maintenance deed could be received in evidence by way of secondary evidence under Section 65(c) of the Indian Evidence Act or the same is not permissible has to be considered.
20. It is not disputed that during the pendency of the suit, the plaintiff filed an amendment application seeking amendment of the plaint so as to plead that the
- 22 -
original registered deed of maintenance dated 30/11/1961 was lost due to fire in the house of the plaintiff by short circuit and she had also stated that a police complaint was lodged to that effect in the year 1992 and the police authorities have replied that the said document is not available in that office. The plaintiff has produced the certified copy of the maintenance deed and the endorsement given by the police authorities which were duly marked as Ex.P2 and P15 respectively. It is also necessary to observe that Ex.P2 was marked as Exhibit without any objection.
21. On the other hand, the First Appellate Court has held that the plaintiff has not laid any foundation for production of secondary evidence by producing Ex.P2 the certified copy of the registered maintenance deed and therefore, the said document is not admissible under Section 65 of the Indian Evidence Act. The Lower
- 23 -
Appellate Court has also held that no presumption can be raised under Section 90 of the Indian Evidence Act as Ex.P2 is not a original document but it is a certified copy. Therefore, the First Appellate Court only on the ground that the plaintiff has not laid any foundation for production of secondary evidence has produced the certified copy of Ex.P2, and therefore it is not admissible.
22. On this point, the learned counsel for the appellants has relied on the judgment in the case of Marwari Kumhar Vs. Bhagwanpuri Guru Ganeshpuri reported in LAWS (SC) 2000 8 148. In this case, the Hon'ble Supreme Court considering the scope of Section 65 of the Evidence Act has held in para 10 of the judgment as follows:-
- 24 -
"Thus it is to be seen that under sub-clause
(c) of Section 65, where the original has been lost or destroyed, then secondary evidence of the contents of the document is admissible. Sub-
clause (c) is independent of sub-clause (f)- Secondary evidence can be led, even of a public document, if the conditions as laid down under sub-clause (c) are fulfilled. Thus if the original of the public document has been lost or destroyed then the secondary evidence can be given even of a public document. This is the law as has been laid down by this Court in Mst. Bibi A is ha and Others v. The Bihar Suhai Sunni Majlis Avaqaf and Others, reported in AIR 1969 Supreme Court
253. In this case a suit had been filed for setting aside a registered mokarrari lease deed and for restoration of possession of properties. The suit
- 25 -
had been filed on behalf of a Waqf. The Original Waqf Deed was lost and an ordinary copy of the Waqf Deed was produced in evidence. The question was whether an ordinary copy was admissible in evidence and whether or not secondary evidence could be led of a public document. The Court held that under section 65 clauses (a) and (c) secondary evidence was admissible. It is held that a case may fall both under clauses (a) or (c) and (f) in which case secondary evidence would be admissible. It was held that clauses (a) and (c) were independent of clause (f) and even an ordinary copy would, therefore, be admissible. As stated above the case that the original was no longer available in Court records and the certified copy was lost has not been disbelieved. Thus the ordinary copy of
- 26 -
the earlier judgment was admissible in evidence and had been correctly marked as an exhibit by the trial court."
23. Learned counsel for the appellants has relied on the judgment in the case of Dayamati Vs. K.M.Shaffi reported in LAWS(SC) 2004 8 17, the Hon'ble Supreme court in para 14 of the judgment has held as follows:-
"To the same effect is the judgment of the Privy Council in the case of Gopal Das & Anr. v. Sri Thakurji & Ors. reported in [AIR 1943 PC 83], in which it has been held that when the objection to the mode of proof is not taken, the party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. That when the objection to be
- 27 -
taken is not that the document is in itself inadmissible but that the mode of proof was irregular, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. Similarly, in Sarkar on Evidence, 15th Edition, page 1084, it has been stated that where copies of the documents are admitted without objection in the trial Court, no objection to their admissibility can be taken afterwards in the court of appeal. When a party gives in evidence a certified copy, without proving the circumstances entitling him to give secondary evidence, objection must be taken at the time of admission and such objection will not be allowed at a later stage."
- 28 -
24. Therefore, when the party has shown that the original has been lost or destroyed, the secondary evidence of the document is admissible. It is true that the party who intends to lead the secondary evidence has to lay foundation for production of the secondary evidence by making a ground on which he is seeking permission of the court for production of secondary evidence as stated in Section 65 of the Evidence Act itself. In the present case, the plaintiff by virtue of the amendment of the plaint has pleaded in detail that the original of Ex.P2 was burnt in the fire accident in her house and in respect of the same, she had filed a police complaint which was proved by production of certified copy of the private complaint at Ex.P4, certified copy of the FIR-Ex.P5 and endorsement issued by the police at Ex.P15. Therefore, the plaintiff has laid foundation in
- 29 -
the pleading itself for production of secondary evidence in respect of the registered deed of maintenance and it was exhibited without any objections by the defendants.
25. Under these circumstances, the First Appellate Court ought to have held that that the plaintiffs have laid foundation for production of secondary evidence, by way of pleadings, and therefore, the production of Ex.P2-the certified copy of the registered maintenance deed by way of secondary evidence is permissible. Therefore, the finding as recorded by the First Appellate Court in this regard is illegal, perverse and capricious and same is liable to be set aside.
26. Further finding of the First Appellate Court that no presumption can be raised under Section 90 of the Indian Evidence Act in respect of Ex.P2, which is certified copy of the registered deed is sustainable.
- 30 -
Presumption under Section 90 of the Indian Evidence Act has to be raised only in respect of original document of 30 years old and it does not apply to the certified copies. Accordingly, substantial question of law framed by this Court at Sl.No.1 is answered in the affirmative and Sl.No.2 is answered in the negative. Further, additional substantial question of law at Sl.No.1 is answered in the affirmative and Sl.Nos.2 and 6 are answered in the negative.
27. The next and foremost important question of law raised in this appeal is as to the application of the provisions of Section 14(1) or 14(2) of the Hindu Succession Act. Learned counsel for the appellants plaintiffs contended that in the present case, Section 14(1) of the Hindu Succession Act is applicable as the father of the plaintiff had given the suit property to the plaintiff by executing a registered maintenance deed
- 31 -
dated 30/11/1961 for her maintenance, and therefore, her limited estate has become absolute estate by virtue of section 14(1) of the Hindu Succession Act.
28. On the contrary, the learned counsel for the respondents submitted that the plaintiff had no preexisting right in the suit property and that she was married, and therefore, the question of giving the suit land to the plaintiff for her maintenance does not arise and that Ex.P2 the document itself is sham and was not acted upon at any point of time. Further, that even if the suit land was given to the plaintiff for her maintenance, her right over the suit land was only limited and it does not extend to the absolute right by virtue of section 14(2) of the Hindu Succession Act. It is also further contended that the suit land is Inam land governed by the provisions of the Karnataka Village Offices Abolition Act and that the said land has been
- 32 -
regranted in favour of the defendants, and therefore, the plaintiff cannot contend that she is in actual possession and enjoyment of the suit land and that her right has become absolute by virtue of Section 14(1) of the Hindu Succession Act.
29. It is not disputed that the father of the plaintiff-Basanagouda was absolute owner of the properties, and therefore, he had absolute right and interest over the suit property including the right to alienate. Therefore, registered maintenance deed executed by the father of the plaintiff in her favour cannot be held as sham document. It is also not disputed that at the time of executing the said deed, the plaintiff was aged about 16 years and was a minor though she was married, and therefore, intention of the father of the plaintiff to give the suit property to the plaintiff was for her peaceful enjoyment and
- 33 -
maintenance. Only for the reasons that immediately after the execution of the said registered deed, the name of the plaintiff was not mutated in the revenue records of the suit land , the right title and interest vested in the plaintiff by virtue of the registered deed cannot be taken away. The registered maintenance deed executed on 30/11/1966, is subsequent to the coming into force of Hindu Succession Act 1956. Therefore, by virtue of Section 14(1) of the said Act, limited interest of the plaintiff becomes absolute by virtue of Section 14(1) of the Act.
30. It is also necessary to observe that as per Section 14(1) of the Act, a woman acquires a right over the immovable property implies to be in constructive possession and not actual possession. The Lower Appellate court has mainly stressed on the point that the plaintiff had no pre-existing right in the suit
- 34 -
property, and therefore, Section 14(1) of the Act is not attracted and further that the suit land is governed by the provision of the Inam Abolition Act and Karnataka Village Offices Abolition Act.
31. The learned counsel for the respondent has relied on the judgment in the case of Sadu Sing Vs. Gurdwara Sahib Narike and Others reported in (2006) 8 SCC 75. In this case, the Hon'ble supreme Court has held as follows:-
"The essential ingredients for determining whether Section 14(1) of the Hindu Succession Act would come into play are, the antecedents of the property, the possession of the property as on the date of the Act and the existence of a right in the female over it, however limited it may be. Any acquisition of possession of property (not right) by a female Hindu after the coming into force of the
- 35 -
Act, cannot normally attract Section 14(1) of the Act. It would depend on the nature of the right acquired by her. If she takes it as an heir under the Act, she takes it absolutely. If while getting possession of the property after the Act, under a devise, gift or other transaction, any restriction is placed on her right, the restriction will have play in view of Section 14(2) of the Act."
32. Therefore, it is crystal clear that where a woman acquires possession of property (not right) after coming into force of the Act, if she takes it as an heir, she takes it absolutely. If while getting possession of the property after the Act, under a device, gift or other transaction, any restriction is placed on her right, the restriction will have play in view of Section 14(2) of the Act. In the present case, the plaintiff had made out that she had pre-existing right of maintenance over the
- 36 -
property of her father being a minor, and therefore, when the said property was given to her in lieu of her maintenance, it becomes her absolute property as stated under Section 14(1) of the Act.
33. The Hon'ble Supreme Court has further held in page 9 as follows:-
"On a reading of sub-Section (1) with Explanation, it is clear that wherever the property was possessed by a female Hindu as a limited estate, it would become on and from the date of commencement of the Act her absolute property. However, if she acquires property after the Act with a restricted estate, sub-Section (2) applies. Such acquisition may be under the terms of a gift, will or other instrument or a decree or order or award."
- 37 -
34. It is also further held that two things are necessary that she must have had a right to the possession of that property and she must have been in possession of that property either actually or constrictively in order to seek the benefit of Section 14(1) of the Act.
35. Learned counsel for the appellants has relied on the judgment in the case of Vidya Vs. Nand Ram Alias Asoop Ram reported in 2001(10) AIR(SC) 747. In para 5 of the judgment, the Hon'ble Supreme Court has interpreted Section 14(1) and 14(2) of the Act, it has been held that the language of Section 14(1) in this respect is very clear. Subsection (1) of Section 14 refers to any property possessed by female Hindu whether acquired before or after the commencement of this Act, shall be held by her as full owner and not as a limited owner.
- 38 -
36. The learned counsel for the appellants has relied on the judgment in the case of Jagannathan Pillai Vs. Kunjithapadam Pillai reported in 1987 AIR(SC) 1493. The Hon'ble Supreme Court has held as follows:-
"It is settled that the limited estate or a limited ownership of the Hindu Female would enlarge into in absolute estate or full ownership of the property in question, where the acquired the limited estate in the property before or after the commencement of the Act, provided she was in possession of the property at the time of the coming into force of the Act on June 17, 1956, and even the property in question was possessed by her in lieu of her right to maintenance as against the State of her deceased husband or the joint family property, she would be entitled to become a
- 39 -
full or absolute owner having regard to the fact that the origin of her right was traceable to the right against her husband's estate.
There is nothing Section 14 which supports the proposition that Hindu female should be in actual possession or in constructive possession of any property on the date of the coming into operation of the Act."
37. In the case of Punithavalli Ammal Vs. Minor Ramlingam reported in 1970, AIR(SC) 1730 the same principle is reiterated by the Hon'ble Supreme Court that the property possessed by Hindu female on the date the Act came into force or after commencement of the Act, shall be held by her as full owner thereof.
38. Again in the decision in the case of Bai Vajia Vs. Thakorbhai Chelabhai reported in 1979
- 40 -
AIR(SC) 993, the Hon'ble Supreme Court has held in para 5 as follows:-
"5. Fazal Ali, J., then embarked on a consideration of the scope and meaning of section 14 of the Act in the light of various pronouncements made by this Court as also of the decisions rendered by various High Courts in relation to the points in dispute. During the course of the discussion he made the following pertinent observations:-
"It is true that a widow's claim for maintenance does not ripen into a full-fledged right to property, but nevertheless it is undoubtedly right which in certain cases can amount to a right to property where it is charged. It cannot be said that where a property is given to a widow in lieu of maintenance, it is given to her for the first time and not in lieu of a pre-existing right. The claim to maintenance, as
- 41 -
also the right to claim property in order to maintain herself, is an inherent right conferred by the Hindu Law and, therefore, any property given to her in lieu of maintenance is merely in recognition of the claim or right which the widow possessed from before. It cannot be said that such a right has been conferred on her for the first time by virtue of the document concerned and before the existence of the document the widow had no vestige of a claim or right at all. Once it is established that the instrument merely recognised the pre-existing right, the widow would acquire absolute interest. Secondly, the Explanation to section 14(1) merely mentions the various modes by which a widow can acquire a property and the property given in lieu of maintenance is one of the modes mentioned in the Explanation. Subsection (2) is merely a proviso to section 14(1) and it cannot
- 42 -
be interpreted in such a manner as to destroy the very concept of the right conferred on a Hindu woman under section 14(1). Sub-section (2) is limited only to those cases where by virtue of a certain grant or disposition a right is conferred on the widow for the first time and the said right is restricted by certain conditions. In other words, even if by a grant or disposition a property is conferred on a Hindu male under certain conditions, the same are binding on the male. The effect of sub-section (2) is merely to equate male and female in respect of grant conferring a restricted estate."
39. Therefore, it is made clear by this pronouncement that the claim to maintenance is also right to claim property in order to maintain herself is
- 43 -
her inherent right confirmed by the Hindu Law and therefore, any property given to her in view of maintenance is merely in recognizaion of claim or right which the widow possessed from before. The same principle is applicable to the present case on hand.
40. In view of the principles stated above, applying the same to the facts of the case on the hand, absolutely there is no reason to hold that the plaintiff had no preexisting right in the property of her father seeking maintenance and that the registered maintenance deed executed by the father of the plaintiff was not at all acted upon or that it was impermissible in view of the provisions of Inam Abolition Act or Karnataka Village Offices Abolition Act. It is not in dispute that the defendants have not at all pleaded any expressed bar or restriction under the said Acts, so as to take away the right of the plaintiff over the suit land
- 44 -
which was given to her in lieu of her maintenance by the father who was absolute owner of the suit property.
41. Under these circumstances, this Court holds that the findings recorded by the First Appellate Court that the registered maintenance deed is a sham document and it was not acted upon or that the certified copy of the said document is not admissible as secondary evidence and that the facts of the present case attracts Section 14(2) of the Hindu Succession Act are perverse, capricious and same are liable to be set aside. Accordingly, the additional substantial questions of law at Sl.Nos.3 to 5, 7 and 8 are held in the affirmative stating that the Lower appellate court has committed error in holding that the limited right of the plaintiff for maintenance does not get ratified as an and absolute right as provided under Section 14(1) of the Hindu Succession Act. Further, that the suit land is
- 45 -
service Inam land and therefore, the suit is not maintainable in the absence of any pleading and evidence to that effect. The Lower Appellate Court is also not justified in dismissing the suit of the plaintiff in entirety for the reason that the plaintiff even as a daughter had a share in the suit property of her father. Therefore, the finding of the Lower Appellate Court in reversing the judgment and decree passed by the trial Court is liable to be set aside. The substantial questions of law framed by this Court are answered accordingly.
42. In the result, appeal succeeds. The judgment and decree passed by the First Appellate Court is liable to be set aside and the judgment and decree passed by the trial Court deserves to be restored.
- 46 -
43. Accordingly, this Court proceed to pass the following:
ORDER The regular second appeal filed under Section 100 of the CPC is allowed with costs throughout.
The judgment and decree dated 29.9.2006 passed in RA Nos.52/2005 by the II Additional Senior Civil Judge, Hubli, is hereby set aside. The judgment and decree dated 14/2/2005 passed in O.S.No.297/1999 by the II Addl. Civil Judge (Jr. Dn.) Hubli, is restored.
Sd/-
JUDGE Vmb