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IN THE HIGH COURT OF BOMBAY
Palekar and M.H.Kania, JJ.
Appellants: Bapusaheb Bhausaheb Patil and Anr.
Vs.
Respondent: Gangabai and Ors.
A.F.O.D. No. 895 of 1968Decided On: 14.10.1970
Counsels:
For Respondents/Defendant: N.S. Shrikhande, L.G. Khare and K.J. Abhyankar, Advs.
HINDU SUCCESSION ACT, 1956 - SECTION 14 - SUB-SECTION (1) AND (2) - INTERPRETATION - PROPERTY ACQUIRED BY HINDU FEMALE IN LIEU OF MAINTENANCE - WHETHER FALLS UNDER SUB-SECTION (1) OR SUB-SECTION (2) - AWARD DECREE ALLOTTING PROPERTY TO HINDU WIDOW IN LIEU OF MAINTENANCE - WHETHER CREATES RESTRICTED ESTATE - WHETHER SUB-SECTION (2) APPLIES.
Fact of the Case:
Hirabai, the widow of Appa, was in possession of certain agricultural lands and a house in lieu of maintenance as per an award decree passed in 1903. The award decree was passed in a dispute between Hirabai and Nemgonda, the grandson of Jingonda, Appa's brother. The award decree allotted 65 acres of land and one house to Hirabai out of 130 acres of land and six houses. 30 acres of the allotted land were earmarked for the provision of maintenance and marriage of Hirabai's three daughters, and the rest of the property was ordered to be retained by Hirabai for life with certain restrictions. Hirabai died in 1967, and Nemgonda's sons, defendants 2 to 6, got their names entered in the revenue records and obtained possession of the suit properties. Hirabai's two daughters, plaintiffs 1 and 2, filed a suit for possession of the properties, claiming title through Hirabai. The defendants contended that Hirabai was merely constituted a limited owner of the properties for her lifetime within the contemplation of Section 14(2) of the Hindu Succession Act, 1956 (the Act), and therefore, the plaintiffs were not entitled to those properties.
Finding of the Court:
The court held that Hirabai was a limited owner of the suit properties on the date of the commencement of the Act of 1956, but she became the full owner of the suit properties on that date under sub-section (1) of Section 14 of the Act. The court further held that the award decree dated 24-10-1903, which allotted the suit properties to Hirabai in lieu of maintenance, did not create a restricted estate within the meaning of sub-section (2) of Section 14 of the Act, and therefore, sub-section (2) did not apply to the case.
Issues: 1. Whether Hirabai was a limited owner of the suit properties on the date of the commencement of the Act of 1956? 2. Whether the award decree dated 24-10-1903, which allotted the suit properties to Hirabai in lieu of maintenance, created a restricted estate within the meaning of sub-section (2) of Section 14 of the Act?
Ratio Decidendi: 1. The court held that Hirabai was a limited owner of the suit properties on the date of the commencement of the Act of 1956 because the award decree dated 24-10-1903, which allotted the suit properties to Hirabai in lieu of maintenance, constituted her a limited owner with some restricted powers to alienate the properties. 2. The court held that the award decree dated 24-10-1903 did not create a restricted estate within the meaning of sub-section (2) of Section 14 of the Act because the award decree was not the source or origin of the interest created in Hirabai. The court held that Hirabai had an antecedent right to maintenance from the joint family property, and the award decree merely translated that right into a specific allotment of property.
Final Decision: The court allowed the appeal, set aside the order passed by the learned Civil Judge, Senior Division, Kolhapur, and passed a decree in favor of the plaintiffs and defendant No. 1 for possession of the suit properties from defendants Nos. 2 to 6.
2. The plaintiffs and defendant No. 1 are the daughters of one Appa alias Jangonda and their mothers name was Hirabai. Appa was the only son of one Devgonda. Devgonda had a brother named Jingonda, who appears to have been deaf and dumb. Defendants Nos. 2 to 6 are the grand-sons of this Jingonda, being the sons of Nemgonda alias Balgonda.
3. Jingonda died sometime before Devgonda leaving behind him his son, Nemgonda alias Balgonda. In about 1902 Devgonda and his son Appa went on a pilgrimage. When they were on the pilgrimage Devgonda died first in 1902 and Appa soon thereafter. So, Devgondas branch in 1902 consisted of Appas widow Hirabai and her three daughters viz., the plaintiffs and defendant No. 1. It appears that the two brothers Devgonda and Jingonda were members of a Hindu joint family and it can, therefore, be said that after the death of Devgonda, Jingonda and Appa, the only male member of Hindu joint family was Nemgonda alias Balgonda. All the properties of the family, many of which had been acquired by Devgonda, were in the possession of Devgondas branch, and, naturally, on death of Devgonda and Appa in 1902, Hirabai came into possession of all the agricultural lands belonging to the family and also the houses. Disputes arose between Nemgonda and Hirabai and the same were referred to an Arbitrator, who gave his award on 15-10-1903. This award was filed in Court and a decree in terms of the award was passed on 24-10-1903. Broadly, the result of this decree was that, out of about 130 acres of lands and six houses and house sites, 65 acres of lands and one house were allotted to Hirabai. Out of the 65 acres, 30 acres were ear-marked for the provision of maintenance and marriage of the three daughters and the rest of the property was ordered to be retained by Hirabai for life with certain restrictions. The 30 acres of lands given to the daughters were by way of absolute gift. But, so far as the lands allotted to Hirabai were concerned, they were to be in her possession only for her lifetime whereafter they were to revert to Nemgonda.
4. Accordingly, the daughters obtained possession of their thirty acres and there is no dispute about them before us. The dispute is confined to the remaining thirtyfive acres and the house. Hirabai was in possession of this property, which is the subject-matter of the suit, till her death on 25-2-1967. At that time Nemgonda was dead and his sons, viz., defendants Nos. 2 to 6, were in the village. They got their names entered in the revenue records in respect of this property and obtained possession of the same.
5. The plaintiffs, who are two daughters out of the three daughters of Hirabai, filed this suit for possession of these properties claiming title to the same through Hirabai. They alleged that Hirabai, who was the limited owner of these properties under the award, had become the full owner of the same after the commencement of the Hindu Succession Act, 1956 and, therefore, the two plaintiffs and their sister, defendant No. 1, were entitled to succeed to the properties of their mother after her death. They further alleged that the suit properties had been allotted to Hirabai by the award in lieu of maintenance.
6. Defendants Nos. 2 to 6 contested the suit and the principal contention with which we are now concerned is, whether Hirabai got full ownership of these properties after the commencement of the Hindu Succession Act, 1956. It is not disputed that if Hirabai is held to have become the full owner of the properties by reason of Section 14 of the Hindu Succession Act, 1956 (hereinafter referred to as the Act), the plaintiffs a
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