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IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
M. N. GILANI, J.
Smt. Gangabai w/o. Krishnarao Mandalik – Appellants.
Vs.
Smt. Chindhabai w/o. Bapurao Wangekar – Respondent
Second Appeal No. 296 of 1995.
Decided On : 24th July, 2012.
Where husband died in 1953, leaving behind widow and two unmarried daughters therefore limited interest of widow ripening into full ownership after coming into force of Section 14(1) of Act. - Facts of the instant case are : After death of Eknath in the year 1953, his widow Sakubai acquired limited interest in the property left by him which ripened into full ownership after coming into force of Section 14(1) Hindu Succession Act. Viewing from any angle and having regard to the right of both these daughters to receive maintenance from the properties left by their father there would be no warrant in saying that they acquired a limited ownership in the said properties. There is a distinction between acquiring the limited ownership in the property and having charge over the said property to ensure existence of source for future maintenance. Merely having right to receive maintenance without anything more is not suffice.
In case of Gulabrao Balwantrao Shinde and others v. Chhabubai Balwantrao Shinde and others, AIR 2003 SC 160 : 2003 (1) All MR 398 (SC), the widow was in possession of the ancestral property. There was no pleadings that said property was given to her by way of maintenance. Their Lordships held that mere possession would not enlarge into full ownership right by invoking Section 14 of the Hindu Succession Act. In the instant case after death of Eknath possession was that of mother when Hindu Succession Act came into force.
In Balwant Kaur and another v. Chanan Singh and others, AIR 2000 SC 1908, the question before Their Lordships was chance of a daughter to succeed to her father’s estate in case father died intestate in the light of the facts that the father had conferred limited ownership on her by executing will. Resolving the issue, Their Lordships observed that : "limited ownership conferred on daughter by her father’s will would not mature into full ownership merely on basis of such chance to succeed." Her legal right being not preexisting she has merely a chance to succeed i.e. spessuccessionis. Aforesaid being the legal position, it follows that on death of deceased in the year 1953, Salubai who succeeded to the properties by virtue of provisions of Hindu Womens Right to Property Act would became full owner of the said properties on coming into force of Hindu Succession Act. Her limited ownership will be enlarged into full ownership. Since she became full owner of the properties left by deceased, she has a right to transfer the same. The question of the daughters becoming co-owners along with their mother does not arise. Original defendant relied upon the partition deed which was not accepted and rightly so. The trial Court found number of flaws touching to the execution of the said deed. It was rightly held by both the Courts below that it is not admissible in evidence.
The very foundation of the mutations is nothing but this partition deed which is inadmissible in evidence and has not been proved. Exhibit 49 is the ferfarently which refers to Salubai partitioning the lands in her possession and allotting them to her daughters. Since this ’Ferfar’ and subsequent entries in the 7/12 extracts are an outcome of the alleged partition deed which the defendant could not prove and substantiate, they became redundant, Both the Courts below were fully justified in discarding the same. In that view of the matter, the sale deed executed by Salubai on 19.10.1982 cannot be questioned on the ground that on 10.8.1982 (date of partition) Salubai was divested of her rights in the suit properties. Sale deed executed by Salubai is perfectly valid. Mutations carried out will have no bearing on her right to transfer the property of which she is full owner. This is the only inference which can possibly be deduced from the evidence on record.
This is an appeal directed against the judgment and decree dated 24/1/1995 passed by Additional District Judge, Nagpur in Regular Civil Appeal No.107/1990 thereby conforming the judgment and decree dated 21/2/1990 passed by Civil Judge Junior Division, Saoner in Regular Civil Suit No.58/ 1986 thereby suit filed by the plaintiff respondent herein for declaration and delivery, of possession of the suit land came to be decreed.
2. One Eknath who is the original owner of the agricultural land area 0.67 H.R. and the house No.38 situated at Bramhani, Tq. Kalmeshwar, Distt. Nagpur (for short "suit property") which is the subject matter of instant appeal who died in the year 1953 leaving behind him a widow Salubai and two daughters namely Chindhabai original plaintiff and Gangabai original defendant. Salubai mother of the plaintiff and defendant died in the year 1983. Before her death, on 19th October 1982 she executed the sale deed of the suit properties in favour of the plaintiff. The dispute arose between plaintiff and defendant over the ownership of the suit properties. This has resulted in the plaintiff filing suit for declaration, injunction and possession of the suit properties against her sister - defendant.
3. Defendant resisted the suit. Her case was that during life time and in the year 1982 Salubai mutually partitioned the suit properties and placed the plaintiff and defendant in possession of their respective shares. The mutations were also carried out. As against the sale deed executed by Salubai in respect of the suit properties, it is stated that fraud was practiced on her by the plaintiff. Sale deed being an outcome of fraud, no title in respect of the suit properties passed in favour of the plaintiff.
4. The learned Trial Court framed as many as 10 issues. Oral as well as documentary evidence was adduced by the parties. The learned Trial Court held that after death of Eknath, Salubai came in possession of the suit properties. By virtue of Section 14 of the Hindu Succession Act she became absolute owner of the same. On 10th August 1982 she executed sale deed in favour of the plaintiff. As regards defendant's Case that there was amicable settlement and suit properties were alloted to plaintiff and defendant in equal shares, it was held that there was no such partition and socalled partition deed is not admissible in evidence. In that light of the matter, the learned Trial Court held that plaintiff is entitled to suit properties and granted the relief of declaration and possession of the suit properties.
5. The First Appellate Court after considering the material placed on record concurred with the findings of facts on all the points recorded by learned Trial Court. Resultantly, appeal came to be dismissed.
6. This Court vide order dated 12/6/1996 admitted this second appeal on grounds 2, 3 and 5 and thereafter the learned counsel for the appellant raised 3 more substantial questions of law for being adjudicated upon in this second appeal. They are reproduced below:
"I. Whether Smt. Salubai could transfer the property by saledeed which property has already been transfered before the day of saledeed and was in possession of the appellant, as owner thereof?
2. What was the effect of the mutation proceedings in mutating the said property in the name of the appellant in August 1982?
3. That, both the Courts below have erred in law in totally disregarding and overlooking the relevant papers on record showing that the suit property belonged to the appellant?
4. On the death of their father, were not the appellant and the respondent vested with right to maintenance against the suit property, which belonged to their deceased father?
5. On the commencement of the Hindu Succession Act, 1956 did not this limited right of maintenance blossom into an absolute right in view of section 14(1) of the said Act?
6. After the commencement of the Hindu Succession Act, 1956 did not the appellant, respondent and their mother become co-owners
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