Andhra HC (Pre-Telangana)
P. Rameswara Rao vs I. Sanjeeva Rao on 26 June, 2003
Equivalent citations: AIR2004AP117, 2003(5)ALD564, 2003(5)ALT697, AIR 2004 ANDHRA PRADESH 117, (2003) 5 ANDH LT 697, (2003) 2 HINDULR 636, (2004) 2 MARRILJ 313, (2003) 5 ANDHLD 564, (2004) 1 CIVLJ 84
JUDGMENT C.Y. Somayajulu, J.
1. Unsuccessful Plaintiff in O.S. No. 59 of 1988 on the file of the Court of Principal Subordinate Judge, Kurnool in the Trial Court and before a learned Single Judge of this Court, preferred this Letters Patent Appeal. For the sake of convenience the parties would hereinafter be referred to as they are arrayed in the Trial Court.
2. The case, in brief, of the plaintiff is that his adoptive father P. Subrahmanyamaiah delivered possession of the plaint schedule property to his widowed daughter-in-law Venkamma for her maintenance under Ex.B.1 registered deed dated 26.4.1928 with a condition that it should revert to him after her lifetime, and so consequent on the death of Venkamma he became the owner of the plaint schedule property as his adoptive father predeceased Venkamma, more so because he has been in continuous possession of the plaint schedule property and is enjoying the usufruct therefrom and is paying maintenance of Rs. 300/- per annum to Venkamma as agreed to by his father in the registered deed, and that the defendant, who has no manner of right over the plaint schedule property, is trying to interfere with his possession, and so his title to the plaint schedule property may be declared and consequently the defendant may be restrained by an injunction from interfering with his possession over the plaint schedule property. The case of the defendant is that Venkamma, who was given possession of the plaint schedule property in lieu of her right to maintenance became the absolute owner thereof by virtue of Section 14(1) of the Hindu Succession Act (for short 'the Act'), and that Venkamma, prior; to her death, executed a Will (Ex.B.36) in a sound disposing state of mind bequeathing the plaint schedule property to him, and so consequent on the death of Venkamma he, who became entitled to the plaint schedule property with absolute right, took possession of the same and has been in possession and enjoyment thereof in his own right and so plaintiff is not entitled to any relief.
Basing on the pleadings, the trial Court framed six issues/for trial, which include the question as to whether Venkamma became the absolute owner of the plaint schedule property by virtue of the provisions of the Act and whether the plaintiff is in possession of the plaint schedule property. In support of his case, plaintiff examined himself as PW.1 and marked Exs.A.1 to A.8. In support of his case, defendant examined himself as DW.1 and four other witnesses as DWs.2 to 5 and marked Exs.B.1 to B.45. Exs.X.1 to X.4 were marked through DW.5. The Trial Court held that the limited right granted to Venkamma under Ex.B.1 enlarged into an absolute right by virtue of Section 14(1) of the Act and that Ex.B.36 Will relied on by the defendant is true and valid, and so the plaintiff, who is not in possession of the plaint schedule property, is not entitled to the declaration and injunction sought, and dismissed the suit. Appeal against that decree preferred by the plaintiff in CCCA No. 3156 of 1990 to this Court, heard by a learned Single Judge, met with the same fate. Hence this Letters Patent Appeal.
3. The main contention of the learned Counsel for the plaintiff is that since a father-in-law, as per the Hindu Law prevailing at the time of Ex.B.1, had only a moral duty but not a legal liability to provide maintenance to his daughter-in-law, Venkamma had no pre-existing right of maintenance against heir father-in-law, and since Ex.B.1 was confirmed by the father of Venkamma, as her guardian during her minority, Exs.A.1 and B.1, when read together, would clearly show that Venkamma . was given the plaint schedule property to be enjoyed by her towards the agreed maintenance of Rs. 300/- par annum, and so it is clear that the plaint schedule property was given to Venkamma towards discharge of his moral obligation, but not in recognition of her pre-existing right of maintenance against him or in the joint family property. It is his contention that subsequent to the execution of Ex.B.1 plaintiff took possession of the plaint schedule property and was paying Rs. 300/-per annum to Venkamma, as agreed to earlier, as evidenced by Ex.B.1, and since Venkamma, in any event, was not in possession of the plaint schedule property by the date of coming into force of the Act, the essential requirement of being 'possessed' of the property as contemplated by Section 14(1) of the Act is not satisfied and so Venkamma did not acquire absolute right over the plaint schedule property. It is his contention that in view of Ex.B.1 and Ex.A.1 it is Section 14(2) of the Act that would apply to the facts of this case. He placed strong reliance on Kothi Satyanarayana v. Galla Sithayya and Ors., , Gurunadham v. Navaneethamma, , Suraj Mal v. Babu Lal, , Eramma v. Veerupana, , and P. Achuta Rao v. Union of India, , in support of his above said contentions. His next contention is that various suspicious circumstances surrounding the execution of Ex.B.36 Will by Venkamma are not dispelled by defendant, but the Trial Court and the learned Single Judge, without seriously bestowing their thought on the due execution and attestation of Ex.B.36, mechanically upheld Ex.B.36, and if Ex.B.36 is disbelieved, plaintiff, who is the only heir to the estate of Venkamma, is entitled to the declaration and injunction sought. The contention of the learned Counsel for defendant is that in view of the ratio in V. Tulasamma v. Sesha Reddi, , reiterated in V. Muthusami v. Angammal and Ors., , the contention that limited right given to Venkamma under Ex.B.1 did not enlarge into a full estate and that Section 14(2) of the Act only is applicable to the facts of the case, cannot be accepted. It is his contention that Venkamma had a pre-existing right of maintenance in the joint family property of which she was a member, and since her husband died as a member of the joint family, the plaint, schedule property given to her under, Ex.A.1 got enlarged into a full estate by virtue of Section 14(1) of the Act. It is his contention that sometime after Ex.B1 Venkarmma had shifted her residence to Kurnool, and has been staying with the defendant and his father, and was being looked after and maintained by the defendant and his father, and so she developed affection towards the defendant and as such she executed Ex.B.36 Will bequeathing the plaint schedule property to the defendant and got it duly registered, and since the Trial Court and the learned Single Judge gave cogent reasons for believing Ex.B.36 Will, there are no grounds to interfere with their findings.
4. The points for consideration in this appeal are:
(i) Whether Venkamma had any preexisting right of maintenance in the plaint schedule property and if so whether her limited right granted to her under Ex.B1 transformed into an absolute right by virtue of Section 14(1) of the Act?
(ii) Whether Ex.B.36 Will dated 25.4.1986, relied on by the defendant, is true, valid and genuine?
5. Point No. 1: Since the husband of Venkamma died in 1926, much prior to the coming into force of the Hindu Women's Right to Property Act, 1937, the important point for determination is whether Venkamma had a pre-existing right of maintenance in the joint family property of her husband's family by the date of the death of her husband. In our opinion this question is not res integra, because in Tulasamma case (supra) Fazal Ali J, after exhaustive consideration of the various text books including Colebrooke on 'Yajnavalkya' and Gopalchandra Sarkar Sastri on the topic 'Hindu Widows right to maintenance' at page 523 of his treatise on Hindu Law, observed as follows at page-108:
"The learned Author highlights the importance of the right of maintenance as being a charge on the property of the husband and observes as follows:
The ancestral immovable property is the hereditary source of maintenance of the members of the family, and the same is charged with the liability of supporting its members, all of whom acquire a right to such property from the moment they become members of the family, by virtue of which they are at least entitled to maintenance out of the same. Such property cannot be sold or given away except for the support of the family: a small portion of the same may be alienated, if not incompatible with the support of the family.
There is no difference between the two schools as regards the view that the ancestral property is charged with the maintenance of the members of the family, and that no alienation can be made, which will prejudicially affect the support of the group of persons who ought to be maintained. Hence heirs are bound to maintain those whom the last holder was bound to maintain.
The author further points out that under the Mitakshara law the daughter-in-law does, with her husband, acquire a right to the ancestral property, since her marriage, but she becomes her husband's co-owner in a subordinate sense, and the principal legal incident of this ownership is the right to maintenance, which cannot be defeated by gift or devise made by the holder of such property. Similar observations have been made by the learned Author at p.52 8 of the book which may be extracted thus:
According to both the schools, the lawfully wedded wife acquires from the moment of her marriage a right to the property belonging to the husband at the time and also to any property that may subsequently be acquired by him, so that she becomes a co-owner of the husband, though her right is not co-equal to that of the husband, but a subordinate one, owing to her disability founded on her status of perpetual or lifelong tutelage or dependence."
At page -111, his Lordship after referring to the decisions of Privy Council in Mst. Dan Kuer v. Smt. Sarla Devi, AIR 1947 PC 8, observed:
"Summarising the entire position the Privy Council enunciated the law thus:
The true rule of Hindu Law in such matters would appear to be as follows:
Two obligations confront a joint Hindu family, (1) The obligation to pay the debts (for instance, of the father) binding on the family; and (2) the moral obligation to provide maintenance to the widows of the family. The latter obligation would, under certain circumstances, ripen into a legal obligation, as, for instance, when a charge is created on specific property of the family either by agreement or a decree of the Court; that, so long as neither of these two obligations has taken the form of a charge on the family property, the obligation to pay the binding debts will have precedence (as, for instance, in the course of the administration of the estate) over mere claims of a female member's maintenance fee; but, if either of these two obligations assumes the shape of a charge, it would take precedence over the other.
and summarized the incidents and characteristics of a Hindu Woman's right to maintenance at page-113, para-4 of which reads:
"The right of maintenance is undoubtedly a pre-existing right which existed in the Hindu Law long before the passing of the Act of 1937 or the Act of 1946, and is, therefore, a pre-existing right in para-38 at page-126 observed:
Once it is recognized that right of maintenance is a pre-existing tangible right, it makes no difference whether a Hindu widow died before or after the enactment of Hindu Women's Right to Property Act, 1937."
and further observed in para-53 at page-130 as follows:
"Thus, in short, these two decisions suffer from the following legal infirmities: (i) the Madras High Court has not correctly or properly appreciated the nature and extent of the widow's right to maintenance; and (ii) the distinction drawn by the Court regarding the share given to the widow under the Hindu Women's Rights to Property Act allotted to her before the passing of the Act in lieu of maintenance is based on artificial grounds. In fact the Act of 1937 did not legislate anything new, but merely gave statutory recognition to the old Shastric Hindu Law by consolidating the same and clarifiying the right of the widow which she already possessed in matter of succession under the Hindu Law. This being the position, the Act of 1937 makes no difference so far as the legal status of a widow in regard to her right to maintenance was concerned. The Act neither took away the right of maintenance nor conferred the same."
Bhagwati, J, speaking for himself and Gupta, J, agreeing with Fazal Ali, J, held as follows in para-71 at page-144 of the said judgment:
"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 on 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...............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."
In V. Muthusami case (supra) also the Supreme Court held in para-12 at page-322 as follows:
"The Bench expressed the view that the Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognized and enjoined by the customary Hindu Law and such a right may not be a right to property, that is, jus in rem but it is a right against property, that is, jus ad rem. The husband has a personal obligation to maintain his wife and if a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. It is also well settled that a widow is entitled to maintenance out of her deceased husband's estate irrespective of whether that estate is in the hands of his male issue or in the hands of his coparcener."
and held in para-15 at page-323 that the law laid down in Tulasamma case (supra) is being consistently followed by that Court. Therefore, it is clear that a widow had a right to be maintained from the joint family property even prior to 1937 and if she had taken steps to get her maintenance ascertained, it became a charge on the property specified for that amount. In this case the maintenance payable to Venkamma was ascertained as Rs. 300/- per annum and for realizing that amount the plaint schedule properly was delivered possession of to her.
6. From the recitals in Ex.B.1 it is seen that the husband of Venkamma died on 14.4,1926 "while staying in the undivided family". Since there is no recital in Ex.B.1 that the plaint schedule property, given to Venkamma in lieu of her maintenance, was the self-acquired property of its executant, i.e., the adoptive father of the plaintiff, it necessarily follows that the property covered by Ex.B1, i.e., the plaint schedule property, was the joint family property of the executant of Ex.B.1 (the adoptive father of the plaintiff) and the husband of Venkamma, because the husband of Venkamma was the only son of Subrahmanyamiah, the executant of Ex.B.1, and since the plaintiff was adopted by him long subsequent to Ex.B.1.
7. Now adverting to contention of the learned Counsel for the plaintiff that since Venkamma was not in actual possession of the plaint schedule property at the time of coming into force of the Act, she is not entitled to the benefit conferred under Section 14(1) of the Act, it has to be stated that the word "possessed" used in Section 14(1) does not refer to actual or Khas possession of the land given to a female in lieu of her maintenance. In fact, in para-68 at page-139 of Tulasamma case (supra) after referring to G.T.M. Kottumswami v. Satre Veerayya, , and Mangal Singh v. Rattno, AIR 1967 SC 1786, it is held that Section 14 (1) of the Act covers all cases of property owned by a female Hindu, although she may not be in actual physical or constructive possession of the property, provided if she had not parted with her rights and is capable of obtaining possession of the property. Since it is not the case of the plaintiff that Venkamma surrendered the right of maintenance granted to her under Ex.B.1 to him, and since his case is that he took possession of the property and was given Rs. 300/- per year to her as maintenance in Ex.B.1, it should be deemed that she was 'possessed of' the plaint schedule property by the date of coming into force of the Act. Here it should be stated that we are not able to accept the contention that Venkamma was accepting Rs. 300/- per year as provided in Ex.B.1, after putting the plaintiff in possession of the plaint schedule property.
It should be kept in view that Rs. 300/- in 1928 was not a small amount. At that time a bag of paddy was costing less than a quarter of a rupee, which means that Venkamma could purchase more than 1200 bags of paddy per year at that time. By the date of filing of the suit in 1988, bag of paddy was costing more than Rs. 100/-. So, it is difficult to believe that a lady who is entitled to be in possession of about 19 acres of land would have parted with its possession by receiving a petty amount of Rs. 300/- per year, and hence we are not able to accept that plaintiff was put in possession of the plaint schedule property by Venkamma and so it is clear that Venkamma herself was in possession of the plaint schedule property by the date of coming into force of the Act.
8. P. Achuta Rao case (supra), relied on by the learned Counsel for the plaintiff, was rendered on 28.2.1977. The judgment in Tulasamma case (supra) was delivered on 17.3.1977, subsequent to the decision in P. Achuta Rao case (supra). Since the law laid down by the Supreme Court in Tulasamma case (supra) is binding, P. Acthuta Rao case (supra) is of no help to the plaintiff. In Kothi Satyanarayana case (supra) two brothers amicably partitioned their properties in 1909. One of the brothers died in 1927 leaving behind a widow. The surviving brother sold some properties belonging to Veeraraju in 1928. When the widow raised a dispute, mediators brought about a settlement and got executed a deed of settlement on 18.8.1937, whereunder Ramamurthy, the surviving brother, settled certain properties on the widow of Veeraraju, to be enjoyed by her for her life and after her death those properties are to revert back to him or his heirs. Since that is not a case of granting property in lieu of maintenance, the Supreme Court Held that Section 14(2) of the Act governs the deed in that case and that the widow of Veeraraju is not entitled to the benefit of Section 14(1) of the Act. The facts in that case are entirely different from the facts in this case. So, the said decision is of no help to the plaintiff. Suraj Mal case (supra) relied on by the learned Counsel for plaintiff has no application to the facts of this case. In that case no property was given to Tara Bai, wife of Kastur Chand, who died in 1936 in lieu of her maintenance and there is nothing in that case to show that she took steps to ascertain the maintenance payable to her. After the death of Kastur Chand, his brother Suraj Mal became entitled to his share by survivorship. Since Tara Bai was not put in possession of any property in lieu of her maintenance, she cannot, by invoking Section 14 (1) of the Act, claim a share in the joint family property. The facts in that case are entirely different from the facts of this case. May be if Ex.B.1 was not executed by the father-in-law of Venkamma, and had she not been put in possession of the plaint schedule property towards her maintenance, that decision could have come to the aid of the plaintiff. Gurunadham case (supra), rendered long prior to the decision in Tulasamma case (supra), taking a view different from that of Tulasamma case (supra), is also of no help to the plaintiff. Erramma case (supra), in our opinion, instead of rendering any help to the plaintiff, would help the case of defendant, because it is clearly held in para-7 thereof that Section 14(1) of the Act contemplates that a Hindu female, who is a limited owner of the properly, would, after coming into force of Section 14(1) of the Act, become a full owner of the same, as the object of that section is to extinguish the 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, and that Section 14(1) does not confer a title on a female Hindu where she did not in fact possess any vestige of title earlier thereto. In this case, as stated earlier, Venkamma, who had a pre-existing right of maintenance, was given the plaint schedule property to be enjoyed by her in lieu of her maintenance under Ex.B1. So, by virtue of Section 14(1) of the Act, as held in Tulasamma case (supra), her limited estate stood enlarged into complete ownership. The point is answered accordingly.
9. Point No. 2; Since defendant propounded Ex.B.36 Will, the burden is on him to establish its truth, validity and genuineness. It is pertinent to note that the fact that Venkamma was living with defendant and his family members from decades prior to her death is neither denied nor disputed by the plaintiff. It is not even the case of the plaintiff that there is any love last between him and Venkamma for her to think of him at the time of execution of a Will by her. A person would normally think of bequeathing his/her property to the persons who are near and dear to him/her, and who are looking after him/her comforts in his/her old age. When it is the defendant and his family members that were looking after the comforts of Venkamma, it is but natural for Venkamma to make them the beneficiaries of the properties belonging to her. So, there is nothing unnatural in her making a bequest to the defendant ignoring the plaintiff. We have gone through the evidence of DWs.2 to 5, and also the reasoning of the learned Trial Judge and the learned Single Judge for upholding Ex.B.36 Will of Venkamma. We find no grounds to interfere with the concurrent finding arrived at by them regarding due execution and attestation of Ex.B36, more so because it is a registered document, and since Venkamma was alive for a period of one year after its execution. So, we hold that Ex.B36 Will is true, valid and genuine. The point is answered accordingly.
10. In view of our findings on the points for consideration, we find no merits in this Letters Patent Appeal and so the same is dismissed, but in the circumstances without costs.