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PETITIONER:

SMT. HIMI D/O SMT. LACHHMU & ANR.

Vs.

RESPONDENT:

SMT. HIRA DEVI WD/O BUDHU RAM & ORS.

DATE OF JUDGMENT: 25/09/1996

BENCH:

N.P. SINGH, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

S.B. Majumdar, J.

The appellants who are the heirs of one Bai Lachhmu,

are the original plaintiffs whose suit for possession

against the respondent-donees of suit agricultural lands

claiming through the donor Bai Utti came to be decreed by

the Trail Court and which decree was confirmed by the

District Court but who lost before the High Court in Second

Appeal and consequently their suit for possession came to be

dismissed by the High Court.

A few relevant facts leading to the present proceeding

by special leave to appeal under Article 136 of the

Constitution of India may be noted at the outset. the suit

lands originally belonged to one Bali Ram. Said Bali Ram

made a will of his properties dividing equally the suit

properties between his second wife Utti and his daughter

from the first wife Bia Lachhmu through whom the appellants

claim. The legatees under the said Will of Bali Ram were his

second wife and his daughter from the first wife who inter

se were step-mother and step-daughter respectively.

Said Bali Ram died on 25th July 1946. Thereafter

Lachhmu claiming her half share in the properties on the

basis of the Will of her father Bali Ram filed a Civil Suit

on 5th May 1947 against her step-mother Utti challenging the

mutation of properties in her name and for enforcing her

rights under the Will and for possession of her half share

in the properties as a legatee under her father's Will. In

the said suit between step-daughter plaintiff Bai Lachhmu

and step-mother Bai Utti a compromise was arrived on 6th

November 1947. Under the said compromise the defendant step-

mother acknowledged the ownership of the half share of

plaintiff Bia Lachhmu in the suit properties pursuant to the

Will of Bali Ram. The plaintiff Bai Lachhmu on the other

hand agreed that her properties comprising of the half share

under her fathers' will may remain in possession of Bia Utti

during her lifetime but after the death of Bai Utti,

plaintiff Bia Lachhmu or her heirs would be entitled to

enter upon the possession of the suit properties. It was

also agreed between the parties that both the parties will

have equal rights in the suit properties during the lifetime

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of Bai Utti, the step-mother of the plaintiff. Accordingly

consent Decree was passed. We will refer to the relevant

terms of the consent Decree a little later. To resume the

narration of events Bai Utti who was permitted during her

lifetime to remain in possession of the properties which

were accepted to be belonging to Bai Lachhmu as per the

aforesaid Compromise Decree, assuming that she had become

full owner of these properties during her lifetime

presumably by virtue of Section 14 sub-section (1) if the

Hindu Succession Act, 1956 (hereinafter referred to as 'the

Act') donated the suit properties by two gift Deeds dated

17th April 1970 and 26th August 1970 in favour of one Bellu

Ram and one Budhu respectively. Under these gift Deeds this

apart from her half share in the properties for which there

was no dispute she also gifted away the other half share of

the properties which belonged to Bai Lachhmu and which half

share was possessed by her during her lifetime pursuant to

the Consent Decree. Accordingly the respective donees

entered upon possession of there properties. Thereafter Bai

Utti dies on 4th September 1971. The appellant as heirs of

Bai Lachhmu filed a Civil Suit against both the donees Bellu

Ram and Budhu on 28th January 1972 claiming possession of

the properties which according to the appellants belonged to

Lachhmu and which were illegally donated by Bai Utti to the

concerned donees. The learned Trial Judge after hearing the

parties passed a decree for possession on 6th September 1976

in favour of the appellants, holding that they are the heirs

if Bai Lachhmu and that the defendants are stopped from

challenging the Will as they had claimed their rights under

Bai Utti and they were bound by the admission made by Bai

Utti relating to the validity of the Will and the right,

title and interest regarding the half share of Bai Lachhmu

in the suit properties. The learned Trial Judge also held

that Bai Utti who was possessed of these properties. When

the Act came into force possessed them as limited owner but

not on account of any pre-existing right in these properties

and that her right flowed from the Compromise Decree passed

in 1947 and consequently she had a restricted estate not

capable of being enlarges into absolute ownership on account

of the provisions of Section 14 sub-section (2) of the Act.

Appeal preferred against the said decree by the aggrieved

defendant came to be dismissed by the First Appellate Court

on 19th November 1979. The aggrieved defendant thereafter

carries the matter in second appeal before the High Court. A

learned Single Judge if the High Court took the view that as

defendant Budhu was a third party and a stranger and as he

was claiming de hors the Will of Bali Ram and as the said

Will was not proved in the litigation between the parties

and as the admission of Bai Utti regarding the validity of

the Will in the Consent Decree was not binding on Budhu the

suit of the appellants was liable to be dismissed and

accordingly the learned Single Judge of the High Court

allowed the second appeal and dismissed the suit of the

appellants, as noted above. The said judgment and decree of

the High Court is brought in challenge by the dissatisfied

plaintiffs in this appeal.

Learned counsel for the appellants vehemently contended

that the compromise Decree dated 6th November 1947 between

the step-daughter Bai Lachhmu, predecessor-in-interest of

the appellants on the one hand and her step-mother Bai Utti,

predecessor-in-interest of the contesting respondents

conferred for the first time a right on Bai Utti to remain

in possession of the suit lands which belongs to Bai

Luchhmu. That the said Consent Decree which gave life

interest to Bai Utti does not acknowledge any pre-existing

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right of Bai Utti in the properties for maintenance as the

step-daughter was not bound to maintain the step-mother.

Therefore, the arrangement between the parties recognised by

the Consent Decree created a new right in favour of Bai Utti

to remain in possession of the decree and consequently

Section 14 sub-section (2) of the Act applied and not

Section 14 sub-section (1). It was next contended that the

High Court had totally gone wrong in holding that the

admissions contained in the Consent Decree on the part of

Bai Utti were not binding on the respondents who were

strangers to the said Decree. It was, therefore, contended

that the High Court had patently erred in law in interfering

with the Decree of the Trial Court as rightly confirmed by

the First Appellate Court.

Learned counsel for the respondents on the other hand

submitted that admittedly the contesting respondent-donees

were not admittedly the contesting respondent-donees were

not parties to the Compromise Decree. That even though the

Compromise Decree acknowledged the rights of Bai Lachhmu

under the Will of her father as the Will was not legally

proved on record no right in the suit properties endured in

favour of Bai Lachhmu and consequently the appellants as her

heirs also cannot claim any interest in the suit properties.

That the suit properties were possessed by Bai Utti when

Section 14(1) of the Act came into operation and, therefore,

her possession as limited owner matured into full ownership

pursuant to Section 14(1) and consequently the suit was

rightly dismissed by the High Court.

Having given our anxious consideration to these rival

contentions we find that the High Court was not justified in

upsetting the decree for possession as passed by the Trail

Court and as confirmed by the First Appellate Court. The

reason for reaching this conclusion is obvious. It may be

that in the suit filed by Bai Lachhmu the step-daughter

against Bai Utti her stepmother the Will of Bali Ram

bequeathing one half share in the properties of the of the

testator in favour of his daughter Bai Lachhmu was seriously

disputed. But that dispute was settled and Bai Utti accepted

by way of compromise the right, title and interest of Bai

Lachhmu in the suit properties as flowing form the Will of

her father. When we turn to the consent terms dated 6th

November 1947 we find the following clear recitals on the

part of Bai Utti acknowledging the tight, title and interest

of Bai Lachhmu in the suit properties :

"Defendant no.1 Bai Utti had

accepted with regard to the half

share in right, title and interest

in favour of the plaintiff in the

remaining lands, the will dated

20th March 1946 made by Bali, the

father of the plaintiff. As regards

in the remaining half lands, right,

title and interest thereto vests in

the defendant no.1. Both the

plaintiff and defendant no.1 have

equal right, title and interest in

these lands. However, the

possession would remain with the

defendant no.1 and that after her

death the plaintiff shall be

entitled to take the possession

thereof, provided she is alive and

if she is not alive, her heirs

would be entitled to take the

possession. .... .... .... decree

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may be passed in terms of the

conditions of this compromise

arrived at between the plaintiff

and the defendant no.1, and the

case file be consigned to the

Record room.

N.B.: During the lifetime of the

defendant no. 1, the plaintiff

shall not be entitled to take

possession."

In view of these clear recitals in the Compromise

Decree it becomes clear that Bai Utti who was defendant no.1

in that suit acknowledged the right, title and interest of

plaintiff Bai Lachhmu, her step-daughter to the extent of

one half share in the suit properties and share agreed to

remain in possession of the properties during her lifetime

only and it was clearly provided that on her death plaintiff

Bai Lachhmu or her heirs would be entitled to take

possession of these properties obviously as full owners

thereof. Thus only a restricted right to occupy the suit

properties was created in the properties belonging to the

plaintiff Bai Lachhmu in favour of her step-mother Bai Utti

during the latter`s lifetime. It is obvious that this life

interest was created not in lieu of any pre-existing or

antecedent right of Bai Utti for being maintained by the

plaintiff Bai Lachhmu, her step-mother . The step-daughter

was not bound to maintain her step-mother under any

provisions of law. Nor was there any pre-existing legal

right of the step-mother Bai Utti qua these properties.

Despite that Bai Utti was permitted to remain in possession

of plaintiff Bai Lachhmu`s property which was purely by way

of a concession to resolve the dispute between the parties.

Thus the right to remain in possession of the first rime on

Bai Utti, the step-mother by her step-daughter Bai Lachhmu,

the plaintiff in that suit. By these consent terms Bai Utti

also acknowledged the right of the plaintiff Bai Lachhmu

flowing from her father`s Will. This life interest flowing

from the consent terms in favour of Bai Utti, therefore,

cannot be said to have been created in acknowledgement of

any pre-existing right of maintenance. Consequently Section

14 sub-section (1) could not be attracted on the facts of

the present case and it is only Section 14 sub-section (2)

which applied. Section 14 with its sub-sections reads as

under :

"14. Property of a female Hindu to

be her absolute property. - (1) Any

property possessed by a female

Hindu, whether acquired before or

after the commencement of this Act,

shall be held by her as full owner

thereof and not as a limited owner.

Explanation.- In this sub-section,

"property" includes both movable

and immovable property acquired by

a female Hindu by inheritance or

devise, or at a partition, of in

lieu of maintenance or arrears of

maintenance, or by gift from any

person, whether a relative or by

not, before, at or after her

marriage, or by her own skill or

exertion, or by purchase or by

prescription, or in any other

manner whatsoever, and also any

such property held by her as

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stridhana immediately before the

commencement of this Act.

(2) Nothing contained in sub-

section (1) shall apply to any

property acquired by way of gift or

under a will or any other

instrument or under a decree or

order of a civil court or under an

award where the terms of the gift,

will or other instrument or the

decree, order or award prescribe a

restricted estate in such

property."

It is no doubt true as decided by this Court in the

case of Vaddeboyina Tulasamma and others v. Vaddeboyina

Sesha Reddi (dead) by L.Rs. AIR 1977 SC 1944 that sub-

section (2) of Section 14 of the Hindu Succession Act is a

proviso to sub-section(1) of Section 14. But Section 14 sub-

section (1) would apply only if property is acquired by

female Hindu in lieu of maintenance or by virtue of any pre-

existing right. Bhagwati, J., (as he then was) speaking for

himself and A.C. Gupta,J., in the aforesaid decision has

made the following pertinent observations in this connection

in paras 3 and 4 of the Report :

"Sub-section (1) of Section 14 is

large in its amplitude and covers

every kind of acquisition of

property by a female Hindu

including acquisition in lieu of

maintenance and where such property

was possessed by her at the date of

commencement of the Act or was

subsequently acquired and

possessed, she would become the

full owner of the property. Sub-

section (2) is more in the nature

of a proviso or exception to sub-

section (1) . It excepts certain

kinds of acquisition of property by

a Hindu female from the operation

of sub-section (1) and being in the

nature of an exception to a

provision which is calculated to

achieve a social purpose by

bringing about change in the social

and economic position of woman in

Hindu society, is must be construed

strictly so as to impinge as little

as possible on the broad sweep of

the ameliorative provision

contained in sub-section (1). it

cannot be interpreted in a manner

which would rob sub-section (1) of

its efficacy and deprive a Hindu

female of the protection sought to

be given to her by sub-section (1).

Sub-section (2) must, therefore,

be read in the context of sub-

section (1) so as to leave as large

a scope for operation as possible

to sub-section (1) and so read, to

must be confined to cases where

property is acquired by a female

Hindu for the first time as a grant

without any pre-existing right,

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under a gift, will, instrument,

decree, order or award, the terms

of which prescribe a restricted

estate in the property. Where,

however, property is acquired by a

Hindu female at a partition or in

lieu of right of maintenance, it is

in virtue of a pre-existing rightly

and such an acquisition would not

be within the scope and ambit of

sub-section (2), even if the

instrument, decree, order or award

allotting the property prescribes a

restricted estate in the property."

Applying the aforesaid settled legal position to the

facts of the present case it must be held that the

Compromise Decree for the first time created a right in

favour of Bai Utti to remain in possession of the property

belonging to Bai Lachhmu only during her lifetime and as

that right was conferred for the first time under the

Consent Decree and was not in lieu of any pre-existing right

of Bai Utti in Bai Lachhmu`s property Section 14 sub-section

(2) applied to the facts of the case and not Section 14 sub-

section (1). It is difficult to appreciate how the High

Court persuaded itself to hold that as the Will was not

proved on record and as the donees by claiming the suit

properties from the donor Bai Utti were strangers to the

Consent Decree they were not bound by the admission of Bai

Utti in the Consent Decree. It is obvious that the

contesting respondents herein who were donees of the

properties could not claim a better title to the suit

properties than what was available to the donor Bai Utti. If

Bai Utti was not the full owner of the properties she had no

right to gift away these properties in favour of the

respondent-donees. They could not be said to be strangers to

the Consent Decree, on the contrary, they were claiming

through one of the parties to the Consent Decree, namely ,

Bai Utti. The obligations flowing from the Consent Decree

and which were binding to the donor Bai Utti would

necessarily bind the donees, namely, the respondents who

stepped in the shoes of Bai Utti . They cannot claim any

better right than what the donor had only a personal right

to occupy the properties during her lifetime, she could not

have conveyed any title of the properties to the donees. It

is equally difficult to appreciate how the learned Single

Judge of the High Court could hold that admissions of the

predesor-in-title of the respondent-donees were not binding

on the respondents. For all these reasons, therefore, it

must be held that the High Court was in error in interfering

with the Decree for possession as passed by the Trial Court

and as confirmed by the First Appellate Court by holding

that Section 14 sub-section (2) of the Act was not

applicable to the facts of the present case and Bai Utti had

become the full owner of the sit properties pursuant to the

said provision.

In the result this appeal succeeds and is allowed. The

judgment and decree of the High Court in R.S.A. No.18 of

1978 dated 5th August 1988 is set aside, instead the decree

padded in favour of the plaintiffs by the learned Senior

Sub-Judge, Kulu in 6th September 1976 and as confirmed by

the learned Additional District Judge, Mandi, Himachal

Pradesh, on 9th November 1977 in Civil Appeal No.50 of 1976

is restored. In the facts and circumstances of the case

there will be no order as to

costs.

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