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High Court Of Madhya Pradesh
P. D. Muley, J.
REVABAI - Appellant
Versus
SITARAM - Respondents
Second Appeal 284 Of 1971
Decided On : 11/24/1983
The widow's right to maintenance, though not an indefeasible fight to property is undoubtedly a pre-existing right. It is true that a widow's claim for maintenance does not ripen into a full fledged right to property, but nevertheless it is undoubtedly a right which in certain cases can amount to a right to property where it is charged It cannot be said that where a property is given to a widow in lieu of maintenance, it is given to her for the first time and not in lieu of it pre-existing right. The claim to maintenance, as also the right to claim property in order to maintain herself, is an inherent right conferred by the Hindu Law and, therefore, any property given to her in lieu of maintenance is merely in recognition of the claim or right which the widow possessed from before. It cannot be said that such a light has been conferred on her for the first time by virtue of the document concerned and before the existence of the document the widow had no vestige of a claim or right at all.
A plain reading of sub-section (1) makes it clear that the concerned Hindu female must have limited ownership in property, which limited ownership would get enlarged by the operation of that sub-section. Limited ownership in the concerned Hindu female is thus a sine qua non for the applicability of sub-section (1) of S.14 of the Act.
A combined reading of the two sub-section and the Explanation leaves no doubt that sub-section (2) does not operate to take property acquired by a Hindu female in lieu of maintenance or arrears of maintenance out of the purview of sub-section (1) AIR 1979 SC 993 relied on. [Para 8
Even assuming that the widows had no right to effect such an absolute partition putting an end to the right of survivorship, the two widows can be said to have been in joint possession of the suit properties left by their husband. The two co-widows having affected by mutual consent a final partition, it was not open to anyone of them to claim a re-allotment of possession of the properties allotted to the other widow. AIR 1977 SC 394 relied on. [Para 19
Establishment of nexus between prior and subsequent acquisition contemplated by sub-section(2) of S.14 is helpful in revealing that the right in question existed even before the subsequent acquisition and in most of such cases such a nexus can be noticed, but that does not mean that the establishment of such a nexus is a condition precedent for saving the operation of sub-section(2) of S.14 as sub S(2) must be confined to cases where property is acquired by female Hindu for the first time as a grant without pre-existing right under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. AIR 1977 SC 1944 relied on. [Para 20
(2) Hindu Adoption and Maintenance Act, 1956 - S.12 - right of an adopted son -adoption took place before the enforcement of the Hindu Succession Act but after the widows mutually agreed to divide property-adopted son gets the right of his adoptive father just like a real son.
The properties of the deceased husband were inherited by the co-widows. The co-widows partitioned the property and came into exclusive possession of there share. One of the widows adopted a son before the enforcement of the Hindu Succession Act though the right of the, adopting the son, was limited widow it ripened into full ownership on the enforcement of the Hindu Succession Act, and the adopted son gets the right in the property held by the co-widow adopting him. [Para 11
(3) Hindu Law-inheritance-theory of relation back-object of- limitation to this theory.
On the basis of the theory of relation back an adopted son is entitled to take the interest of the adoptive father as on the date of his death. This principle of relation back is based on a legal fiction that there should be no gap or break in the continuance of the line of the adoptive father. This theory of relation back is, however, subject to certain exceptions. One of the limitations is that if the property by inheritance passed to a collateral and the adopted son is adopted after the death of the collateral the adoption cannot divest the estate of the collateral which had gone to his heir by inheritance. Another exception to which the principle of relation back is subject is that the adopted son would be bound by any lawful alienation effected by a male or female heir on the death of adoptive father and before the date of adoption and now the third exception is on account of the provisions of S.14 of Hindu Succession Act. [Para 15
(4) Civil Practice - plea not taken in two courts below - may be considered in second appeal if it is question of law, particularly when the two courts below have given a finding. [Para 15
(5) Hindu Law-property inherited by two co-widows - partition could not be made so between them so as to put an end to right of survivorship - this principle has been given the go by under the Hindu Women's Right to Properties Act, 1937. [Para 18
( 1 ) THIS second appeal filed by the appellant Rewabai. who is now being represented by her legal representative Suresh. is directed against the judgment and decree dated 4th October. 1971 passed by the Addl. District Judge. Barwani. in Civil First Appeal No. 32-A of 66. whereby he set aside the judgment and decree of the trial court which had dismissed the plaintiff respondent's suit for possession of the suit house, agricultural lands and cattle as per schedules A. B and C annexed to the plaint. which are in possession of the defendant and in the alternative for permanent injunction and declaration that the decree of partition in C. S. No. 1 of 38 is void and inoperative against the plaintiff.
( 2 ) FACTS giving rise to this appeal, may be stated, in brief, as under: Chhitar had two sons Roopa and Gopal. These two sons Roopa and Gopal had orally partitioned their ancestral property near about 1928-29. Roopa had two wives, namely Jamna Bai and Rewa Bai, the defendant. Roopa died in October. 1933. Admittedly the property in Schedules A. B and C fell into the share of Roopa. All these facts are not disputed. The defendant Rewa Bai filed C. S. No. 1 of 38-39 against the co-widow Jamna Bai for partition of the property in Barwani court, as the properties in dispute arc situated within the jurisdiction of that court. As per the decree passed in that court on 5-G-39 as per Ex. P/5. properties in schedules A. B and C were given to Rewa Bai who came in exclusive possession thereof on the basis of that decree. On 30-9-39 Hindu Women's Right to Property Act was applied, to Barwani State by Resolution No. 82/28-29. Subsequently on 1-5-41. by resolution No. 3014/40-41 it was extended to agricultural lands also. On 12-11-53 Jamna Bai adopted plaintiff Sitaram. who was her daughter's son of which the registered adoption deed Ex. P/4 was executed on 1-12-53. All these facts are also not in dispute.
( 3 ) ON 30-11-1963. plaintiff Sitaram filed the present suit mainly on the around that after his adoption as a son by Jamna Bai. he has divested defendant Roopa Bai of the properties in dispute and that the judgment and decree Ex. P/5 does not bind him.
( 4 ) THE learned trial court, on evidence, found that the suit property did not vest in the plaintiff since the time of adoption i. e. 12-11-53 by the doctrine of relation back and that conscauently the rights of the defendants are not divested. He also found that there had been a partition between the two cowidows, though since then defendant is in possession of the suit property as a limited owner subject to other rights of inheritance: that the doctrine of devastation Hoes not apply to revenue paying agricultural lands during the lifetime of the defendant: that the defendant had become full owner of the suit property by virtue of the provisions of the Hindu Succession Act and ultimately dismissed the suit
( 5 ) ON an appeal being filed by the plaintiff the learned lower Appellate Court found that the co-widows Jamna Bai and Rewa Bai had limited interest known as a 'hindu Woman' Estate in the property that fell to their share on partition. Relvine on the decision reported in AIR 1960 SC 1172 (Income-tax Commr. v Smt. Indira) he found that even after the partition of the estate of their deceased husband, the co-widows succeeded as co-heirs to the estate of their deceased husband as joint tenants with rich of survivorship and equal beneficial enjoyment. that as between themselves they are entitled to an equal share of the income, that though they take as joint tenants, no one of them has a right to enforce an absolute partition of the estate against the others so that to destroy their right of survivorship, but they are entitled to the property so that each may enjoy her equal share of the income accruing therefrom. He therefore, found that the doctrine of relation back applied to the present case, whatever right. title or interest Rewa Bai had acquired by virue of partition, in
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