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High Court Of Madhya Pradesh
P. K. Tare, J.
ANANDIBAI - Appellant
Versus
SUNDARABAI - Respondents
Second Appeal 349 Of 1960
Decided On : 09/12/1962
Amendments to pleadings ought to be liberally allowed where the satisfy the two tests of not working injustice to the other party and of being necessary for the purpose of determining the real question in the controversy between the parties. AIR 1957 SC 363 followed. [Para 9
Even a time-barred amendment in pleading may be allowed where the circumstances necessitate such a course; (5) AIR 1957 SC 357, relied on. [Para 9
(2) Co-owners - possession-co-owner, though not in possession, could be deemed to be in joint possession with other co-owner or co-owners. [Para 10
(3) Hindu Succession Act, 1956 - S. 14 - retrospective operation - S. 14 is partly retrospective and partly prospective - phrase "whether acquired before or after the commencement of this act” is retrospective and phrase "any property possessed by of female Hindu is prospective - acquisition and possession entitle full ownership - acquisition and possession must co-exist but need not be simultaneous.
Section 14 of the Hindu Succession Act, 1956, is partly retrospective. The phrase "Whether acquired before or after the commencement of this Act" is retrospective, while the phrase "any property possessed by a female Hindu" is prospective. The property may be acquired, any time either before or after the commencement of the act. Such property if possessed by a female Hindu, is to be held by her as full owner, and not as a limited owner after the act came into force, provided two things co-exist. The first requisite is that she must acquire the property either before or after the commencement of the act, and the second is that the property must be possessed by her. If any of these requisition is wanting, the property cannot be considered to be her absolute estate. Also, if the property is in possession of a trespasser and the possession has ripened into a vested right by virtue of S. 28 of the Limitation Act, 1908 it cannot be said that the property would be the absolute estate of a Hindu female. AIR 1957 SC 577, followed. [Para 18
While the two things, i.e., the acquisition and possession, either actual or constructive, must co-exist for the conferral of an absolute estate on a Hindu female the prior acquisition need not be co-related with possession on the date of the act and the subsequent acquisition co-related to the question of possession on that date. There is no warrant for the proposition that the two factors namely, acquisition and possession, must be simultaneous. Section 14 of the act will be attracted when the two ingredients co-exists, and not only when they co-exist simultaneously. It is enough if they co-exist though at different point, of time Any other interpretation would defeat the very provisions of S. 14 of the act. It is not the object of interpretation to interpret a statute in a way which would defeat the provisions of an enactment. [Para 19
The word "possessed" cannot, however be divorced from the idea of possession altogether. Howsoever broadly and liberally the word "possessed" might be understood, it must include possession either actual or constructive in some legal sense. It is only when the two ingredients viz., acquisition and possession combine, that the female Hindu becomes an absolute owner. If, on the date of acquisition, whether prior to or after the act Cama into force, a limited owner is not in possession, she continues to be a limited owner till such time as she obtains juridical possession of the property either actual or constructive. It is at that time which may accrue at any time after the acquisition, that the property becomes her absolute property by virtue of S. 14 of the Hindu Succession Act. [Para 25
It is not necessary that the interest of a Hindu female should be finalised by a final decree for partition and by a division of the property by metes and bounds to enable S. 14 of the Act, being attracted. Even the share declared by a preliminary decree for partition becomes her absolute estate. AIR 1962 SC 1493; relied on. AIR 1936 PC 20 distinguished. [Para 20
(4) Hindu Law - succession-partition-co-widow or co-heir had a right to partition of property even before Hindu Succession Act, 1956 came into force.
Even before the enactment of the Hindu Succession Act, 1956, a co-widow or a co-heir had a right to claim partition against another co-widow or co-heir, subject to the limitation that the right of survivorship amongst them would not be defensible by such a partition made by them which would merely be an arrangement operative during their lifetime. AIR 1928 PC 251 and 16 Ind. App. 186 (PC) relied on. [Para 30
Where, therefore, one co-heir was in possession of the disputed property, it was held that the other co-heirs suit for partition and separate possession in respect of the property was tenable, even before the coming into force of the Hindu Succession Act.
( 1 ) THIS appeal is by the defendants against the decree, dated, 20-4-1960, passed by Shri S. N. Chaturvedi, Additional District Judge, Dhar, in Civil Appeal No. 25 of 1959, reversing the decree, dated 18-11-1958 passed by Shri R. L. Chandani, Civil judge Class II, Badnawar, in Civil Suit No. 106 of 1953.
( 2 ) THE suit property originally belonged to "pannalal, who died on 6-10-1961, leaving behind two daughters, namely, Anandibai and Sunderbai. The second appellant, Krishna is the son of the first appellant, Anandibai who claimed to be the adopted son of Pannalal.
( 3 ) THE respondent filed the present suit for partition and separate possession of the property left by Pannalal on the premises that she had inherited the same along with her sister, Anandibai. She also claimed mesne profits. The suit was filed in the year 1953, that is, much before the Hindu Succession Act, 1956 came into force.
( 4 ) THE appellants' defence was mainly twofold firstly that the second respondent, krishna had been adopted as a son by Pannalal and that be had been placed in possession of the property by the deceased in acknowledgment of his status as an adopted son; and secondly the suit for partition was not tenable by one of the two sisters inheriting their father's property. The suit for partition was also said to be untenable, as Krishna was in exclusive possession of the property and his mother, anandibai was not at all in possession.
( 5 ) THE trial Judge dismissed the suit mainly on the ground that the property was not in possession of a co-heir, but was in possession of Krishna. In the opinion of the learned Judge, Section 14 of the Hindu Succession Act had no bearing on this case. However, the trial Judge negatived the defence contention about the factum of adoption.
( 6 ) THE plaintiff appealed against that decree to the first appellate Court. Although the learned appellate Judge did not exhaustively consider the question of possession, he roundly came to the conclusion that Section 14 of the Hindu succession Act was applicable to the present case and, therefore, the plaintiff's suit became tenable during the pendency of the litigation. As regards possession, the learned appellate Judge observed that Anandibai, along with her son, Krishna was in possession of the estate and, therefore, the suit for partition was tenable. The learned appellate Judge affirmed the finding of the trial Judge to the effect that the adoption had not been proved.
( 7 ) IN the present appeal, the learned counsel for the appellants did not challenge the concurrent finding of the Courts below regarding the factum of adoption not being proved and, in my opinion, very rightly. The learned counsel at the outset stated that the finding will not be open to a challenge at the second appellate stage according to the dictum laid down by Their Lordships of the Supreme Court from time to time. Therefore, the only questions canvassed in this Court were, (i)regarding the applicability of Section 14 of the Hindu Succession Act, 1956, and (ii) regarding the suit for partition not being tenable in view of the second appellant, Krishna, being in possession in pursuance of a purported adoption by pannalal and the first appellant, Anandibai not being in possession at all. It is, therefore, to be seen that the question whether the second appellant has been in exclusive possession after the death of Pannalal and that his mother, Anandibai or the respondent never having been in possession at any time has bearing on both the questions relating to the applicability of Section 14 of the Hindu Succession act, as also the question of tenability of a suit for partition and separate possession. Therefore, before dealing with the two questions involved, it would be necessary to decide the question of actual physical possession, which will affect the questions involved.
( 8 ) THE trial Judge had not given any detailed finding on the question of possession; but , from the cursor
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