Karnataka High Court
Subhan Rao And Anr. vs Parvathi Bai And Ors. on 26 September, 2001
Equivalent citations: AIR2002KANT134, ILR2002KAR724, 2002(1)KARLJ606, AIR 2002 KARNATAKA 134, 2002 AIR - KANT. H. C. R. 555, (2002) ILR (KANT) (1) 724, (2002) 2 CIVLJ 291
Author: H. Rangavittalachar
Bench: H. Rangavittalachar
JUDGMENT H. Rangavittalachar, J.
Hon'ble Judges:
H. Rangavittalachar, J.
1. These two appeals arise against a common judgment and decree in O.S. Nos. 62 of 1974 and 116 of 1982 and confirmed in R.A. Nos. 183 of 1989 and 40 of 1985 and the same facts and question of law is involved in both the appeals. Hence both the appeals are disposed off by this common order.
2. Both the appeals are filed by the plaintiff to the two suits, O.S. Nos. 62 of 1974 and 116 of 1982, on the file of the Principal Civil Judge, Chickodi.
3. The subject-matter, involved in the two suits are, 4 items of Agricultural land; 2 items are situate at Belagali Village, measuring in all about 36 acres 17 guntas and another 2 items situate at Kabbur Village measuring in all 34 acres 37 guntas. According to the plaintiffs these properties originally belonged to one Sadashiva Rao Siddoji Rao Parvathrao Desai (hereinafter referred to as "Siddoji Rao" for brevity). Plaintiff 2-Prafulla Devi is the wife of Siddoji Rao, plaintiff 1-Subhan Rao Sadashiva Rao is the adopted son of Siddoji Rao (though this adoption was questioned by the defendants to the two suits but the findings of both the Courts below is that he is the "adopted son"). The said Siddoji Rao had a kept mistress called Gangu Bai from whom a son, Ramachandra Rao was born. (He was declared not entitled to inherit Siddoji Rao's property by the earlier binding decision of this Court in BSA No. 354 of 1956 (Ex. P. 11). Ramachandra Rao's wife is Sundara Bai. The couple had no issues. Sundari Bai was defendant 4 to the two suits. Ramachandra Rao died in 1957. Sundari Bai died on 22-7-1979 during the pendency of the proceedings before the Trial Court and one Ningavva and Prakash Virupaksha Mahajan claiming as legal representatives of Sundari Bai under her registered will were brought on record as defendants 4(A) and 4(B). Parvathi Bai, defendant 1 to the suit is the purchaser of one of the items of suit property bearing Sy. No. 262 of Kabbur Village, Deepak and Vinayak, defendants 2 and 3 to the suit are purchasers of another item of Belagali Village in revision survey No. 3 from Sundara Bai.
4. Plaintiffs had filed the suit O.S. No. 62 of 1974 for declaration of title challenging the alienations made by Sundari Bai in favour of defendants 1, 2 and 3, and for possession. In the suit O.S. No. 116 of 1982, (the plaintiffs had earlier filed the suit, O.S. No. 66 of 1972 on the file of the Munsiff, Chikkodi which was transferred later to the file of the Civil Judge, Chikkodi and renumbered as O.S. No. 116 of 1982), plaintiffs had prayed for bare injunction in respect of the suit properties against defendants 1 and 2. According to the plaintiffs, that said Siddoji Rao was a paraganawatandar of the village of Nagaranianoli in Chikkodi Taluk. That Siddoji Rao in order to provide for maintenance for his illegitimate son, Ramachandra Rao and his wife Sundara Bai, under a registered deed dated 1-9-1941 described as "potgi patra", had granted the suit properties to Ramachandra Rao creating a life estate and after his death the property to devolve to Sundari Bai and to the male issues born to them. If the couple died without any male issues, the lands should revert to the family of the grantor, Siddoji Rao. After Ramachandra Rao's death in the year 1957, Sundari Bai inherited the life estate and though the couple had no issues Sundari Bai alienated certain items of the suit property in favour of defendants 1, 2 and 3 contrary to the terms of potgi patra. After the death of Sundari Bai, plaintiffs amended the plaint contending that, the life estate of Sundari Bai terminated and the property reverted to the reversioners, i.e., plaintiffs 1 and 2.
5. Suit was contested. Various defences were taken by the defendants including denying of the relationship of plaintiffs 1 and 2 to Siddoji Rao as pleaded and more important of them being that "potgi patra" was in the nature of a settlement deed recognising the antecedent right of Ramachandra Rao in the coparcenery property as he was an illegitimate son. The conditions creating the life estate under Ex. P. 1 being contrary to the terms of the grant did not hind Ramachandra Rao, and he became the absolute owner of the suit properties. After his death his wife, Sundari Bai inherited the property as a heir. Even otherwise Sundari Bai had a pre-existing right of maintenance when she came into possession of the suit properties under Ex. P. 1. After coming into force of Section 14(1) of the Hindu Succession Act, her life estate got enlarged into an absolute estate. Therefore, Sundari Bai as a rightful owner was entitled to deal with the property in any manner she liked.
6. Trial Judge framed as many as 18 issues in the main suit O.S. No. 62 of 1974 and 5 issues in the injunction suit 116 of 1982. He has repelled the defences that the plaintiffs are not related to Siddoji Rao and has held that the plaintiff 2 is the legally wedded wife of Siddoji Rao and plaintiff 1 is the adopted son, suit properties are part of coparcenery property and 2 items of agricultural lands situated at Belagali Village was a part of the watan lands regranted in favour of Ramachandra Rao. The other 2 items of lands in Kabbur Village is the absolute property of Ramachandra Rao having got it under the potgi patra, Ex. P. 1. According to the learned Trial Judge, this potgi patra is in the nature of a settlement deed executed by Siddoji Rao in recognition of pre-existing right of illegitimate son. The restriction placed on the right to deal with the property was contrary to the provisions of Transfer of Property Act, Ramachandra Rao takes the property as if the restriction did not exist. Learned Trial Judge has also accepted the alternative defences that Sundari Bai had a pre-existing right of maintenance from the family of Siddoji Rao and the property granted to her under Ex. P. 1 is in recognition of such a right. Therefore, having regard to Section 14(1) of the Hindu Succession Act, 1956 she became the absolute owner entitled to deal with the property as such. Accordingly, Trial Judge dismissed both the suits of the plaintiffs by his judgment and decree dated 30-3-1985.
7. The two judgments and decrees were challenged by the plaintiffs by filing 2 regular first appeals before the Additional District Judge, Belgaum. The same arguments argued before the learned Munsiff were again pressed, besides it was also contended by the plaintiffs by filing an application under Order 41, Rule 27 of the CPC that the regrant order made by the inam authorities in respect of the watan lands of Belagali Village are being challenged by them, same had not become final.
8. Appellate Judge concurred with the findings of the learned Trial Judge on all points except the finding that "Ramachandra Rao had an independent right to inherit the property". He has held Ex. P. 1, the potgi patra was not in the nature of a settlement deed in recognition of any independent right. Ramachandra Rao got only a life estate under the deed. The other reasonings of the Civil Judge that the life estate granted in favour of Sundari Bai was in recognition of her pre-existing right of maintenance was upheld.
9. These 2 judgments and decrees are under challenge by the plaintiffs as stated above. This Court admitted the appeal to consider the following substantial question of law:
"Whether the right of maintenance conferred on defendant 4 under the document, Ex. P. 1 had enlarged into an absolute right under Section 14(1) of the Hindu Succession Act, 1956?"
10. After hearing the arguments, I am of the view apart from the above substantial questions of law, one other question of law also arises for consideration:
"Whether the Courts below were justified in declaring title of the two watan lands of Belagali Village when the very regrant is being agitated before the Competent Authorities".
11. Sri G.S. Vishveshwara, learned Counsel appearing for the appellants/plaintiffs contended firstly that having regard to the earlier decision of this Court as per Ex. P. 10 in RSA No. 354 of 1956, the status of Ramachandra Rao vis-a-vis the family of Siddoji Rao is already decided inasmuch as he has been held as the son of Siddoji Rao born from an adulterous intercourse not entitled to any property rights in the estate of Siddoji Rao. Ramachandra Rao takes the property only under Ex. P. 1-potgi patra and not independent of it. He is bound by the terms of the grant. Since potgi patra itself states that his wife, Sundari Bai will take a life estate after the death of Ramachandra Rao and in the absence of any male children born to Ramachandra Rao and Sundari Bai, the life estate of Sundari Bai gets terminated on her death and the property reverts to the family of Siddoji Rao, i.e., the plaintiffs herein. The life estate created in favour of Sundari Bai will not get enlarged into an "Absolute estate" as there was no pre-existing right of Sundari Bai to be maintained by the family of Siddoji Rao. The entire right to property flows only from and through the potgi patra and not independent of it. Therefore, it is Section 14(2) of the Hindu Succession Act that has application to the facts of this case and not Section 14(1). In order to bring out the distinction between Section 14(1) and 14(2) of the Hindu Succession Act, learned Counsel has relied on the following decisions:
(1) Himi and Anr. v. Hira Devi and Ors.;
(2) Bhura and Ors. v. Kashi Ram ;
(3) Vankamamidi Venkata Subba _ Rao v Chatlapalli Seetharamaratna Ranganayakamma;
(4) Gumpha and Ors. v. Jaibai;
(5) Kothi Satyanarayana v. Gall a Sithayya and Ors.;
(6) G. Appaswami Chettiar and Anr. v. R. Sarangapani Chettiar and Ors.''.
12. Basing his submission on the strength of the above arguments it was further contended that Sundari Bai had only a right of usufruct and not right to the corpus which means that she had no right to alienate the property. The alienation therefore made in violation of terms of potgi patra was void and the alienees did not acquire any title to the property defeating the right of reversioners. He therefore prayed that the substantial question of law at No. 1 must be held accordingly.
13. Insofar as the lands at Belagali is concerned, learned Counsel's contention was that the regrant order made by the jurisdictional revenue authorities in pursuance of the Bombay Watan Abolition Act, in favour of Ramachandra Rao was being challenged by the plaintiffs before the proper jurisdictional authorities and the Civil Courts had no jurisdiction to pronounce about the validity or otherwise of the regrant order.
14. Meeting these arguments, Sri K.I. Bhatta and Basavaraj Kareddy, learned Counsels appearing for the contesting respondents submitted firstly that Ramachandra Rao was the illegitimate son of Siddoji Rao, and this fact is recognised by Siddoji Rao himself when he executed the potgi patra. If that is so, Sundari Bai being the daughter-in-law of Siddoji Rao had a right of maintenance against the family property of Siddoji Rao and the potgi patra only recognised the said right of maintenance which existed independently and de hors of potgi patra, hence on the coming into force of Section 14(1) of the Hindu Succession Act, the shackle of life estate was removed and Sundari Bai became the absolute owner entitled to deal with all the jurisprudential rights of an owner including right to alienate the property. Hence, the alienations are perfectly valid and binding. Plaintiffs suit was rightly dismissed by the Courts below.
15. Insofar as the watan lands are concerned, learned Counsel fairly agreed that the parties will be bound by the decision of the jurisdictional authorities regarding regrant made in favour of "Ramachandra Rao being questioned. _____
16. From a reading of the judgments of the Courts below and the contentions advanced by the parties before this Court and also in order to answer that substantial question of law framed at No. 1, the most important question that arises for consideration is, "Whether Sundari Bai, w/o. Ramachandra Rao who has been granted a life estate in respect of suit properties under the potgi patra had a pre-existing right of maintenance, other claim or right either against Siddoji Rao or the joint family property of Siddoji Rao independently and de hors of potgi patra? If so, whether the life estate granted under the potgi patra, is in recognition of such a right". It is the answer to this question that determines the application of either Section 14(1) or 14(2) of the Hindu Succession Act.
17. Before I proceed to answer the question, facts regarding the relationship of plaintiffs and deceased Ramachandra Rao and Sundara Bai to the family of Siddoji Rao is required to be stated as both of them claim right to property of Siddoji Rao's family. It is unnecessary to enter into a detailed discussion on this point as the same is already decided by a binding decision of this Court in Ramachandra Shiddojirao deceased by L.Rs v. Sadashivarao Shiddojirao Parvatrao and Others. The said second appeal arose from the decision of the Senior Divisional Judge, Belgaum in Special Suit No. 55 of 1953 which was filed by Ramachandra Rao, the husband of Sundari Bai against the adoptive father of plaintiff 2-Sadashiva Rao Siddoji Rao for partition and separate possession of 1/4th share in the estate of Siddoji Rao. Ramachandra Rao had taken up a contention that he was the illegitimate son of Siddoji Rao being born to Ganga, the kept mistress of Siddoji Rao and since Ramachandra Rao and Siddoji Rao (Lingayats) happen to be sudras, he was entitled to inherit 1/4th share as a coparcener. The said contention was rejected by the Division Bench of this Court, this Court has held about the relationship of parties as under:
"Ramachandra Rao's mother was one Ganga, she was the legally wedded wife of one Bheema Talwar. During the subsistence of the said marriage, she was in exclusive keeping of Siddoji Rao during which period Ramachandra Rao was born. Ganga died on 27-9-1904, her husband Bheema Talwar died in the year 1945, Siddoji Rao died on 16-1-1942 and Ramachandra Rao was born on 6-3-1897".
18. After elaborately considering the evidence on record and also the relevant texts on Hindu Law and the Judicial pronouncements, it was further held:
"Thus after a careful review of the judicial decisions, it appears to us that an illegitimate son of sudra born to a married woman as a result of an incestuous or adulterous intercourse is not entitled to inherit his putative father's estate".
19. On the status of Ramachandra Rao, vis-a-vis the family of Siddoji Rao, Court held:
"We hold that the plaintiff is not entitled to inherit and claim partition and possession of 1/4th share in the suit schedule properties since he is born to Ganga as a result of an adulterous intercourse with deceased Siddoji Rao".
(emphasis supplied)
20. Accordingly, Ramachandra Rao's suit for partition was dismissed which concluded about the status of Ramachandra Rao as the judgment of the Court was not challenged further.
21. There is no dispute that the non-watan lands were the ancestral property of Siddoji Rao and Siddoji Rao has expired. Sundari Bai is the legally wedded wife of Ramachandra Rao, is also not in dispute. But Ramachandra Rao is already held by this Court as not having the status of a legitimate or an illegitimate son though he is born to Ganga from Siddoji Rao, on account of adulterous intercourse. Whether Ramachandra Rao can be held to be a disqualified or excluded heir of Siddoji Rao and if so, whether his lawfully wedded wife has any right of maintenance from the property of Siddoji Rao and the right granted under potgi patra, Ex. P. 1 viz., life interest to the non-watan lands is relatable to the said interest and whether said life interest enlarged into an absolute estate under Section 14(1) of the Hindu Succession Act is required to be decided.
22. The problem of the "illegitimate children" and their wives or children born out of adulterous intercourse outside marriage is a sociological problem which has given rise to various legal difficulties regarding their rights in respect to the property of their begetters. The society was always confronted with this problem. While on one hand it realised the fact that the illegitimate children or children born out of adulterous intercourse were in no way responsible for the circumstances which attended their conception and to neglect them legally and relegate to a no status possession in regard to their legal rights to the property of the begetters was always felt cruel but at the same time the society was also faced with the problem to protect the interests of the lawful family and to dissuade men and women from crossing the lawful bounds of wedlock which if permitted would be ruinous.
23. J. Duncan M. Duncan in his Essays ''Classical and Modern Hindu Law", Vol. III (Indian reprint, 1995) at page 182 while dealing with the Chapter "Inheritance by, from and through illegitimates at Hindu Law" has echoed the sentiments felt by the Hindu Dharmashastrakaras and his own in the following passages:
"The truth is admitted on all hands that illegitimate children are in no way responsible for the circumstances which attended their conception. The fact that the father and the mother were not married at that time is accepted even Dharmashastra as stamping them forever with the mark of illegitimacy. That is to say they are not aurasas and will never be entitled to succeed to their fathers on intestaced unless they can take advantage of the special provisions concerning the dasiputra of the sudra. Birth outside marriage or birth within marriage but attended by the proof of non-access still causes in most societies serious disabilities and even in less enlighten times and communities some disgrace. Both are generally admitted to be totally undeserved".
After dealing with the reforms undertaken in Europe on the question of recognition of illegitimate children who were born outside the wedlock and children born out of a condemned intercourse or adultery, learner! author sympathising with their position states as under:
'They remain those children born of adultery or of an incestuous or condemned intercourse, whose position cannot be cured by the implementation of the aforesaid theory of tacit promise. Accordingly, the indulgence of the community might be sought in their favour in order that they might in some respects gain a status which they had failed to acquire though no fault of their own".
24. Dealing with the Hindu sentiments on these questions, learned author observes:
"Hindu sentiment on the whole strongly favours a strict moral approach though compassion for the unfortunate illegitimates is probably strongly felt among Hindus as anywhere in the world".
25. The Hindu smritikaras, recognised the rights of illegitimate children and their families if for any reason they are excluded from the inheritance at least for a right of maintenance both on legal as well as moral grounds. The sentiment of morality had also a strong hold. P.V. Kane in his book of the Hindu Dharmashastra, Vol. III, page 805, states that the "Heir is bound to maintain out of the estate taken by him those persons whom the deceased was legally and morally bound to maintain".
(emphasis supplied)
26. In the facts of the present case, though Ramachandra Rao cannot be termed as the heir at law as coming within the definition of the 13 legally recognised sons by the smritikaras or not an illegitimate son being a dasiputra but certainly is a son of Siddoji Rao in the biological sense, though he is said to have been born in the adulterous intercourse between Siddoji Rao and Ganga. Can he be termed as a heir excluded or disqualified from inheritance.
27. Persons who are disqualified from inheritance under the Hindu Law are mentioned in H.T, Cole Brooke, ''Digest of Hindu Law on Contracts and Successions", III Edition, Vol. IT from page 422, under the Chapter "Exclusion from Inheritance". Learned Author translating the Sanskrit version of the smrithikaras on this chapter states as under:
"Quoting Narada it is stated: "A professed enemy to his own father, a degraded man, one who deprived of virility, and a man formally expelled by his kinsmen, shall not inherit though begotten by the deceased; muchless if begotten on his wife by a kinsman legally appointed.
Quoting Devala it is stated: '"On the death of a father or other owner of property, neither an impotent man nor a person afflicted with elephantiasis nor a mad man nor an idiot nor one born blind nor one degraded for sin nor the issue of a degraded man nor a hypocrite or imposter shall take any share of his heritage".
Quoting Manu it is stated: "Eunuchs and outcastes, persons born blind or deaf, mad men, idiots and such as the loss of the use of the limb or excluded from the share of the heritage".
Quoting Yagnavalkya it is stated at page 4,36: "An outcaste and his son and eunuch one lame, a mad man, an idiot, one born blind and who is afflicted by incurable diseases must be maintained without any allotment of shares".
At page 438, their daughters must be supported so long as they be not disposed off in marriage;
And their childless wives who preserve chastity must be supplied with food and apparel (see page 438).
Quoting Kathyayana at page 439 it is stated: "the son of a woman not taken in marriage according to the order of the clauses or one related by blood to her husband and a man who has assumed the order of a religious and anchoret are never capable of inheritance".
28. And by judicial decisions a person who kills another is disqualified from inheriting the farmer's property. Similarly in the cases an "Illegitimate son by incestuous intercourse is not entitled to inherit".
29. The Privy Council in the case of P.M.A.M. Vellaiyappa Chetty and Ors. v. Natarajan and Anr., referred to with approval the decision of the Madras High Court in the case of Gopalasami Chetti v. Arunachellam Chettir the following passage:
"The text does not expressly deal with maintenance of sudras it is true, but the authorities are quite clear that when the illegitimate son cannot ask for a share he is entitled to get maintenance from his putative father's joint family estate even in the hands of his coparceners".
In Viraramuthi Udayan and Anr. v. Singaravelu''', it has been held relying on Rahi v. Govinda Vala Teja;
"The son of an adulterous intercourse who has been acknowledged by his father is entitled to maintenance out of his father's estate though not entitled to inherit", (emphasis supplied)
30..Thus Ramachandra Rao but for this peculiar situation of being born could have inherited the property of Siddoji Rao but he has incurred the disqualification or is excluded only by the fact of he being a product of the adulterous intercourse. Hence, it is a case of a person excluded from inheritance.
31. Regarding the status and right of the lawfully wedded wives of such persons, Prof. P.V. Kane, at page 805 (Vol. III) in his book on History of Dharmashastra relying on Yagnavalkya No. II, pages 140-142, Manu (x. 202, Vas. 17. 54) has stated that the wives of persons who are excluded from inheritance are entitled to maintenance.
32. S.T. Strang in his "Manual on Hindu Law", Vol. I, page 235 compiled in 1825 in the chapter on "Charges on Inheritance" has stated "of persons disqualified to inherit. Their childless wives continuing chaste are moreover to be provided for. As also the maintenance and nuptials of their unmarried daughters". This statement of Strang is quoted with approval in the case of Bhorib Chander Ghose v. Nobo Chunder Ghose, at page 51. This is what has been stated by the Court:
''And the general rule of law is, that all persons (other than outcastes) disqualified from inheriting by various disabilities are entitled to maintenance. Even the childless wives of such persons are to be provided for;
Strang Man S 198 and their daughters maintained and married. "So anxiously careful" justly writes Sri T. Strang (Vol. I, page 235), "has the Hindu Law been that there shall exist no final distress in families, while means exist to prevent it even in the instance of most undeserving". (The full report of this case is reproduced by the Hon'ble John Bruce Norton in his publication and Selection of Leading Cases on Hindu Law of Inheritance, Part 1, page 31. The above extracted para is to be found at page 51.)"
(emphasis supplied)
33. The potgi patra, Ex. P. 1 is executed by Siddoji Rao on 2-9-1941. The contents of the same is referred to in the judgment of the learned Trial Judge at para 18 and that of the learned Appellate Judge at para 54 (there is no dispute about the correctness of the same). According to the learned Trial Judge Ex. P. 1 mentions, "That there was a dispute between Siddoji Rao and Sadashiva Rao on one hand and Ramachandra Rao and Sadashiva Rao on the other hand and the dispute was settled through pancha. In Ex. P. 1 it is stated that the suit properties were given to the possession of Ramachandra Rao as on the date of the execution of Ex. P. 1 for the maintenance of himself and his natural male issues to enjoy the properties happily forever. But in case if Ramachandra Rao were to the without having any natural male issues, his wife, Sundari Bai after Ramachandra Rao's death should enjoy the suit lands for her maintenance only till her lifetime and after her death the suit lands should revert back to the grantors, Siddoji Rao and Ramachandra Rao".
34. What emerges from Ex. P. 1 is Siddoji Rao had recognised Ramachandra Rao as his son and Sundari Bai as his daughter-in-law though not in the legal sense but at least in the biological sense. It is not improbable that he realised that he was obliged to maintain the family of Ramachandra Rao morally even if it is said that he thought that he was not legally bound. After the death of Siddoji Rao, this moral liability for maintenance of the family of Ramachandra Rao and his wife got matured into "legal liability" in respect of the property of Siddoji Rao in the hands of Sadashiva Rao. Hindu Law has recognised the moral duty of a father-in-law to maintain the widowed daughter-in-law from his self-acquired property and on his death, the said moral liability ripens into a legal liability, in respect of the property of the father-in-law (see the decision of Madras High Court in Appavu Udayan v. Nallamma). No doubt this principle of Hindu Law applies to cases where the widowed daughter-in-law was the wife of the legitimate son of the father-in-law. I am only referring to this case to appreciate how the Hindu Law viewed the duty to maintain persons who are related even morally also. In a case like the one on hand where this duty is felt by Siddoji Rao to maintain his son and his family members it may not be improper to extend the above reasoning of the Madras High Court to this case on the peculiar facts. There is nothing in the Hindu Law which was applicable prior to the Adoption and Maintenance Act or in the provisions of the Adoption and Maintenance Act which prohibits the application of the above reasonings.
35. In my view the combined reasoning of what is stated above, leads to the conclusion that Sundari Bai had a right or interest to be maintained in whatever way or form earlier to the execution of Ex. P. 1 and Ex. P. 1 can be related to this right.
36. If such a right or interest can be claimed by Sundari Bai recognised by Ex. P. 1, the next question is whether Section 14(1) or (2) of the Succession Act which has application to the facts,
37. Before answering, it is necessary to extract the provisions of Section 14(1) and (2) of the Hindu Succession Act, 1956 (hereinafter referred to as the 'Act') and how the Supreme Court has viewed and interpreted it-Section 14(1) and (2) 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.
(2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a Will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, Will or other instrument or the decree, order or award prescribe a restricted estate in such property".
38. After the enactment of this section, large number of cases arose as to the real meaning and intention and difference between the two sub-sections (1) and (2) of Section 14. Different approaches were adopted by different High Courts in this country while some of the High Courts took up a conservative view of strict interpretation the other High Courts took a liberal view. Ultimately in the leading case Vaddeboyina Tulasamma and Ors. v. Vaddeboyina Sesha Reddi (dead) by L.Rs., the Supreme Court held having regard to the object and purpose and historical perspective of the Act Section 14(1) is to be liberally interpreted. This is what has been stated:
"Sub-section (1) of Section 14 is wide in its scope and ambit and uses language of great amplitude. It says that any property possessed by a female Hindu whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. The words "any property" are, even without any amplification, large enough to cover any and every kind of property, but in order to expand the reach and ambit of the section, and make it all comprehensive the Legislature has enacted an explanation which says that property would include "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 the Act. Whatever be the kind of property, movable or immovable, and whichever be the mode of acquisition, it would be covered by Sub-section (1) of Section 14, the object of the Legislature being to wipe out the disabilities from which a Hindu female suffered in regard to ownership of property under the old Shastric law, to abridge the stringent provisions against proprietary rights which were often regarded as evidence of her perpetual tutelage and to recognise her status as an independent and absolute owner of property. This Court has also in a series of decisions given a most expensive interpretation to the language of Sub-section (1) of Section 14 with a view to advancing the social purpose, of the legislation and as part of that process, construed the words 'possessed of also in a broad sense and in their widest connotation. It was pointed out by this Court in Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva, that the words 'possessed of mean "the state of owning or having in one's hand or power". It need not be actual or physical possession or personal occupation of the property by the Hindu female, but may be possession in law. It may be actual or constructive or in any form recognised by law. Elaborating the concept, this Court pointed out in Mangal Singh v. Rattno (dead) by her L.Rs that the section covers all cases of property owned by a female Hindu although she may not be in actual, physical or constructive possession of the property, provided of course, that she has not parted with her rights and is capable of obtaining possession of the property. It will therefore, be seen that Sub-section (1) of Section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property".
39. Bringing out the distinction between Section 14(1) and (2) and the way Section 14(2) has to be interpreted, the Court held at para 4:
"These provisions is more in the nature of a proviso or exception to Sub-section (1). It expects certain kind of acquisition of property by Hindu female by operation of Sub-section (1), and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of woman in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in Sub-section (1). It cannot be interpreted by a manner which would rob Sub-section (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by Sub-section (1)".
40. The Court further held after refeiring to Badri Pershud v. Kanso Devi and to Clause 18(2) of the Draft Bill corresponding to Section 18(2):
"The legislative intentment was that Sub-section (2) should be applicable only to cases where acquisition of property is made by the Hindu female for the first time without any pre-existing right - a kind of acquisition akeing to one under gift or Will".
41. There is no deviation from this liberal approach in any of the later decisions of the Supreme Court, except a distinction was drawn in Gumpha's case, supra, to the effect that Section 14(1) has no application to cases where a female Hindu comes into possession of property after the Act comes into force under a Will executed by a person under Section 30 of the Act, as enlarging life estate in such cases would run counter to spirit of Section 30 of the Act.
42. In Gulwant Kaur and Anr. v. Mohinder Singh and Ors., Section 14(1) of the Act again came up for consideration. It has been held:
"Section 14 is aimed at removing restrictions or limitations on the right of 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 the widow is not required to establish any further title before she can claim full ownership under Section 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-section (2) of Section 14 is in the nature of an exception to Section 14(1) and provides for a situation where property is acquired by a female Hindu under a written instrument or a decree of Court and not where such acquisition is traceable to any antecedent right".
43. In this case I have held that Sundari Bai prior to execution of Ex. P. 1 had certainly a claim, interest or a right for maintenance in the properties of Siddoji Rao. Ex. F. 1 can only be relatable to this interest and the life estate created in her favour under Ex. P. 1 fructifies and matures into an absolute estate after coming into force of Section 14(1) of the Hindu Succession Act. Sundari Bai became an absolute owner of the suit properties viz., lands in Kabbur Village and the findings of the Court below though on a different reasoning cannot be held to be illegal or against the provisions of Hindu Law.
44. However, Sri G.S. Vishveshwara, learned Counsel for the appellant submitted that, the smrithis does not declare a son born out of adulterous intercourse as a "disqualified heir". According to him, the only disqualified heirs are persons who are of unsound mind, impotent persons, outcaste, born blind, deaf and idiots. Hence, Ramachandra Rao cannot be said to be a disqualified heir, so as to press the argument that Sundari Bai is the wife of a disqualified heir, therefore entitled for maintenance. Initially I was inclined to agree with the said arguments, but on a closer consideration and examination it is difficult to accept the same. No doubt, the smritikaras like Manu, Yagnavalkya and commentator Mithakshara have declared the above described persons as disqualified heirs but they have not stated that the list is exhaustive. In fact, Kathyayana, one of the commentators who is also considered as an authority on Hindu Texts has added to the said list persons born out of incestious relationship as disqualified heirs. Similarly, by judicial pronouncements a person who has murdered is a disqualified heir to inherit the victim's property. So also persons born out of adulterous intercourse are held to be disqualified heirs.
45. Since the learned Counsel had referred to the decisions of the Supreme Court, rendered under Section 14(1) and (2) of the Hindu Succession Act, 1956, during the course of arguments, it is therefore necessary to refer to them in order to appreciate how far the same has any bearing on the questions to be decided in this appeal.
46. The first case referred to is:
Smt. Himi's case, supra:
In a suit filed by the step-daughter against her step-mother claiming right to half share of her father's property under a Will executed by the father a compromise was arrived at between the parties under which the step-daughter agreed for her step-mother to continue to be in possession of her share till her lifetime only i.e., creating a life estate. Section 14(1) of the Act was pressed into service to contend that the life estate got statutorily matured into an absolute estate. Repelling the contention it was held, "Step-daughter is not bound to maintain the step-mother and when she created a life interest in respect of her property in favour of her step-mother it was not in recognition of any pre-existing right".
47. In the second case of Vankamamidi Venkata Subba Rao, supra:
It was a case where a Hindu widow who hart sued for partition of her husband's estate had agreed to take a life estate under a compromise entered into in adjustment of her share. To a contention raised that the life estate got enlarged under Section 14(1) the Court held, when the widow admitted that she got a limited estate for the first time under a compromise, it was Section 14(2) and not Section 14(1) that has application. The Court however recognised the distinction between Section 14(1) and 14(2) at para 9 of its judgment as expounded in Tulasamma's case, supra, in the following passage:
"9. It is well-settled legal position that if the right by a Hindu woman under any instrument is in recognition of pre-existing right, the limited right though prescribed under the instrument, gets enlarged into an absolute right by operation of Section 14(1) of the Act. On the other hand if a right is acquired for the first time under the document, then Sub-section (2) of Section 14 gets attracted and, therefore, the right acquired under the instrument by operation of Sub-section (2) of Section 14 does not get enlarged".
48. In Gumpha's case, supra:
"That was a case where a male Hindu by his Will made in 1941 bequeathed one half share to each of his wives for life, and directed thereafter the property to devolve upon his daughter. The testator died in 1958. One of the wives bequeathed her share to a stranger. A dispute arose between the daughter of the testator and the legatee of the Will of the original testator's wife. The question that came up for consideration before the Supreme Court was as to whether the life estate created under the Will by the testator in favour of his wife, remained a life estate under Section 14(2) or became an absolute estate under Section 14(1). The Court held relying on Section 30 of Hindu Succession Act, and explaining Tulasamma's case, supra, as--
(i) The right of maintenance explained in Tulasamma's case, supra, was one recognised under customary Hindu Law to maintain a widow, a daughter-in-law, mother, as a member of a joint family and it would not operate where Hindu is bequeathing his property in exercise of his right under Section 30 of the Act. A distinction was made of property acquired by a female under a Will where the testator died after the coming into force of Hindu Succession Act, 1956 and the property acquired where the testator died before 1956. In the earlier case Section 14(2) was held to be applicable and the later case by Section 14(1). A female Hindu who, except for the stridhana property was a limited owner became an absolute owner under Section 14(1) of the Act"."
49. None 'of the cases deal with the questions of law involved in this appeal and thus are not helpful for the decision of this case nor they have deviated in any manner on the law declared from Tulsamma's case, supra.
50. Insofar as the lands bearing Sy. Nos. 3 and 12 measuring about 12 acres and 16 guntas are "paragana watan lands" of Belagali Village. Under the Bombay Paragana and Kulkarni Watans Abolition Act, 1950 the Paragana and Kulkarni Watans in the State of Bombay was abolished on and after the coming into force of the said Act.
Section 3 of the said Act abolished the right, title and interest of the watandars in the watan lands and they were resumed by the State.
Section 4 of the said Act the watan land resumed could be regranted to the holder of the watan to which it appertained under certain conditions stated therein.
Section 11 of the said Act provides for the finality of the award. Section 11 reads as under:
"Section 11. Finality of an award of collector and decision of Revenue Tribunal.--The award made by the collector subject to an appeal to the Bombay Revenue Tribunal and the decision of the Bombay Revenue Tribunal on the appeal shall be final and conclusive and shall not be questioned in any suit or proceeding in any Court".
51. In the facts of the present case, the findings of the Courts below are that Siddoji Rao was the watandar. After his death and after the coming into force of the Watan Abolition Act, Ramachandra Rao made an application for regrant of the suit lands which application was allowed under Section 4 of the act and he has been paying the land revenue. However, during the pendency of the appeal, Sadashiva Rao had made an application under Order 41, Rule 23 of the CPC - I.A. II referred to by the Appellate Court as para 23 of its judgment. In the affidavit filed in support of the application - I.A. II, he had stated that he has made an application to the Assistant Commissioner, Chikkodi for conversion of the watan lands into Rayatawarpatta and the Assistant Commissioner by his order dated 26-3-1987 has declared him as the holder of the watan lands. It is also stated that the regrant order made in favour of Ramachandra Rao has been challenged by him by preferring an appeal before the Assistant Commissioner, Chikkodi and the appeal is still pending. Learned Appellate Judge after noticing the same, at para 80 of his judgment has held as: "It is rightly contended by the learned Advocate for the defendants that the plaintiffs have not challenged the regrant order as null and void". Before this Court also the factual situation regarding the regrant made in favour of Ramachandra Rao being challenged before the Appellate Authority, is not disputed. Having regard to this fact, and in view of Sections 3, 4 and 11 of the Watan Abolition Act, untill the Appellate Authority decides the appeal, the finality of the orders under the Act has not reached and it would be premature at this stage far the Civil Courts to declare the title of either of the parties in respect of watan lands as it is the exclusive jurisdiction of the authorities under the Watans Act.
52. For the reasons stated above, the substantial question of law framed viz., "Whether the right of maintenance conferred on defendant 4 under the document, Ex. P. 1, had enlarged into an absolute right under Section 14(1) of the Hindu Succession Act, 1956", is answered holding the life estate granted under Ex. P. 1 in respect of lands at Kabbur Village in favour of Sundari Bai gets enlarged into "Absolute Estate" under Section 14(1) of the Hindu Succession Act and the conclusions of the Courts below on this behalf is upheld.
53. Insofar as substantial question of law at No. 2 is concerned, "Whether the Courts below were justified in declaring title of the two watan lands of Belagali Village when the very regrant is being agitated before the Competent Authorities", the same is answered as holding that the Courts below were not justified in declaring title to the watan lands when the matter was pending before the Competent Authority. The findings of the Courts below in this regard is set aside and the parties shall abide by the decision of the authorities under the Kulkarni Watan Abolition Act which is dealing with the matter.
54. For the reasons stated above, the appeal is partly allowed to the extent indicated above and there shall be a decree in terms of what is stated above. No costs.