Where a female acquires property interest through partition or in lieu of maintenance, her pre-existing right ensures it is held as absolute ownership, rendering any restrictive clauses in the allotment instrument void and ineffective.

ORAL ORDER :

1. Heard.

2. Judgment and decree dated 08.07.2022, passed by the learned District Judge-1, Nagpur, in Regular Civil Appeal No.318 of 2018 and the judgment and decree dated 13.04.2018, passed by the learned Joint Civil Judge, Junior Division, Nagpur, in Regular Civil Suit No.487 of 1988, are under challenge in the present second appeal. The dispute in the matter pertains to the family of one Balaji, who had purchased the suit properties in the year 1928 and constructed a house thereon in the year 1931. Balaji died intestate in the year 1932. On 26.10.1953, there was a partition between his three sons namely Harihar, Keshao and Krushna and widow namely Laxmibai. Laxmibai the widow has expired on 23.12.1979. In the partition that took place in the year 1953, certain properties were allotted to the shares of the three sons, while the suit properties were allotted to the share of the widow, Laxmibai. During her lifetime, Laxmibai transferred the suit properties in favour of her grandson, defendant No.1. The present suit is filed to challenge the gift deed dated 08.06.1967, executed by Laxmibai in favour of defendant No.1 and for seeking partition of the suit properties.

3. The contention of Mr. Kshirsagar, learned Advocate for the appellants is that the so called partition of the year 1953 is, in fact, a family settlement and not a partition. He contends that the document dated 26.10.1953, which is purportedly a partition, cannot be termed to be partition since it is not a registered document. He contends that under the said family settlement, only a life interest was created in favour of Laxmibai and therefore, she was not competent to transfer the same by way of gift to defendant No.1. He further contends that the family arrangement made in the year 1953 did not confer any right of maintenance upon Laxmibai in respect of the suit properties. The learned Advocate further contends that the share granted to the widow, Laxmibai, will continue to remain a limited estate in view of Section 14(2) of the Hindu Succession Act, 1956 (hereinafter referred to as “HS Act of 1956”), and that it will not enlarge into a full ownership under Section 14(1) of the H.S. Act of 1956. The learned Advocate has placed reliance on the judgment of the Hon’ble Supreme Court in the matter of Sharad Subramanyan ..vs.. Soumi Mazumdar and Ors, reported in AIR 2006 SC 1993.

4. Per contra, Mr. Jachak, the learned Advocate for the respondents, contends that Laxmibai being widow of Balaji had a pre-existing right of maintenance in the properties of her husband, Balaji. Mr. Jachak, the learned Advocate therefore, contends that the limited estate granted to her under the partition deed dated 26.10.1953 would become a full estate under Section 14(1) of the HS Act of 1956. As regards the contention relating to the nature of the transaction in the year 1953, Mr. Jachak has drawn attention to Paragraph-3 of the plaint, wherein it is stated that a partition had taken place in the year 1953 between the three sons and the widow of Balaji, which was subsequently reduced into writing. The learned Advocate also drawn attention to the specific statement in the plaint that the suit properties was allotted to Laxmibai in lieu of her maintenance.

5. I have perused the plaint and evidence with the able assistance of the learned Advocates. Perusal of the documents of partition demonstrates that it is stated therein that Laxmibai would be