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PETITIONER:

NAZAR SINGH AND ORS.

Vs.

RESPONDENT:

JAGJIT KAUR AND ORS.

DATE OF JUDGMENT13/11/1995

BENCH:

JEEVAN REDDY, B.P. (J)

BENCH:

JEEVAN REDDY, B.P. (J)

MAJMUDAR S.B. (J)

CITATION:

1996 AIR 855 1996 SCC (1) 35

JT 1995 (8) 161 1995 SCALE (6)476

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

B.P.JEEVAN REDDY,J.

Leave granted. Heard counsel for the parties.

This appeal is preferred against the judgment and

decree of the Punjab and Haryana High Court dismissing the

second appeal filed by the defendants-appellants. The suit

for "possession of the land (suit lands) to the extent of

7/8th share" has been decreed by the trial court and

affirmed in appeal and second appeal.

Gurdial Singh was a resident of a village in Bhatinda

district in Punjab. He owned 94 kanals and 19 marlas of land

in the village. He was working as an employment officer in

Madhya Pradesh. The relations between him and his wife,

Smt.Harmel Kaur, were strained. They were living apart.

Harmel Kaur filed a petition under Section 488 of the

Criminal Procedure Code (old code) for grant of maintenance.

In those proceedings, a compromise was arrived at between

Gurdial Singh and Harmel Kaur whereunder the suit lands (94

kanals and 19 marlas in extent) were given to Harmel Kaur in

lieu of her maintenance. The compromise entered into between

them is evidenced by Exh. P-3. The lands were given to

Harmel Kaur subject to the following conditions:

"1. That the possession of the land in

dispute was given to Harmel Kaur

defendant No.4.

2. That Harmel Kaur would be entitled to

get the land cultivated or to lease it

out and to utilize its income for

herself, wherever she likes.

3. That she would not sell or mortgage

this land. She would however be

responsible for the payment of land

revenue or any other Govt. Tax from time

to time.

4. If during the life time of Harmel

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Kaur, Gurdial Singh gets back the land

from her he would pay her Rs.50/- per

month as maintenance.

5. If Gurdial Singh died before Harmel

Kaur, then, in that case, Harmel Kaur

would be entitled to get her share from

the said land as a legal heir in

accordance with the law.

6. The maintenance allowance of Rs.25/-

per month already being paid to her,

shall be stopped.

7. Harmel Kaur shall also be entitled to

keep her residence at V.Mehraj in the

house belonging to Gurdial Singh.

8. Harmel Kaur also thumb marked this

agreement/compromise and agreed that in

case the land is taken away back by

Gurdial Singh, then she would get

Rs.50/- per month as maintenance from

him."

Exh.P-3 is dated December 3, 1963.

Gurdial Singh died on July 30, 1981.

Harmel Kaur executed four sale deeds in November, 1987 and

August, 1988 in favour of Defendant Nos.1 to 3 (appellants

herein) whereunder she sold 70 kanals and 19 marlas of land

out of the suit lands for a consideration of Rs.1,62,200/-.

On that basis, mutation was also effected in the name of the

appellants.

In January, 1991 the present suit was filed. The first

plaintiff claimed to be the wife (second wife) of Gurdial

Singh while Defendant Nos.2 to 4 claimed to be their

daughters. According to the plaintiffs, the first plaintiff

was married to Gurdial Singh on March 21, 1946. They claimed

a 7/8th share in the suit lands (including 70 kanals and 19

marlas sold to the appellants) under and in accordance with

the Hindu Succession Act. According to them, Harmel Kaur was

entitled only to a 1/8th share. The defendants denied that

the first plaintiff was married to Gurdial Singh or that

Plaintiff Nos.2 to 4 are the daughters of Gurdial Singh.

This issue is, however, concluded by the finding of the

first appellate court to the effect that the first plaintiff

was indeed married to Gurdial Singh and that Plaintiff Nos.2

to 4 are their daughters.

The courts below have decreed the suit holding that

under the compromise aforementioned, only a life interest

was created in Harmel Kaur and not an absolute interest.

According to them (the High Court dismissed the second

appeal in limine), it is sub-section (2) of Section 14 of

the Hindu Succession Act that applies herein and not sub-

section (1). The correctness of the said view is questioned

by the defendants-appellants. Section 14 of the Hindu

Succession Act, 1956 reads as follows:

"14. Property of a female Hindu to be

her absolute property.-- (1) Any

property possessed by a female Hindu,

whether acquirod 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, or in lieu of maintenance or

arrears of maintenance, or by gift from

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any person, whether a relative or 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 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."

According to sub-section (1), any property possessed by a

female Hindu shall be held by her as full owner thereof and

not as a limited owner irrespective of the fact whether the

said property was acquired by her before the commencement of

the Act or after the commencement of the Act. Explanation to

sub-section (1) elaborates the meaning and content of the

expression "property" in sub-section (1). It includes

property given in lieu of maintenance.

Section 14 and the respective scope and ambit of sub-

section (1) and (2) has been the subject-matter of a number

of decisions of this Court, the most important of which is

the decision in V.Tulasamma v. V.Sesha Reddi (1977 (3)

S.C.C.99)*. The principles enunciated in this decision have

been reiterated in a number of decisions later but have

never been departed from. According to this decision, sub-

section (2) is confined to cases where property is acquired

by a female Hindu for the first time as a grant without any

pre-existing right under a gift, will, instrument, decree,

order or award, the terms of which prescribe a restricted

estate in the property. It has also been held that where the

property is acquired by a Hindu female in lieu of right of

maintenance inter alia, it is in virtue of a pre-existing

right 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 to her prescribes a

restricted estate in the property. Applying this principle,

it must be held that the suit lands, which were given to

Harmel Kaur by Gurdial singh in lieu of her maintenance,

were held by Harmel Kaur as full owner thereof and not as a

limited owner notwithstanding the several restrictive

covenants

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*Reference may also be had to the decision in Jagannathan

Pillai v. Kunjithapadam Pillai (1987 (2) S.C.C.572) which

deals with post-Act acquisition of property by a female

Hindu.

accompanying the grant. [Also see the recent decision of

this Court in Mangat Mal v. Punni Devi (1995 (6) S.C.C.88)

where a right to residence in a house property was held to

attract sub-section (1) of Section 14 notwithstanding the

fact that the grant expressly conferred only a limited

estate upon her.] According to sub-section (1), where any

property is given to a female Hindu in lieu of her

maintenance before the commencement of the Hindu Succession

Act, such property becomes the absolute property of such

female Hindu on the commencement of the Act provided the

said property was "possessed" by her. Where, however, the

property is given to a female Hindu towards her maintenance

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after the commencement of the Act, she becomes the absolute

owner thereof the moment she is placed in possession of the

said property (unless, of course, she is already in

possession) notwithstanding the limitations and restrictions

contained in the instrument, grant or award whereunder the

property is given to her. This proposition follows from the

words in sub-section (1), which insofar as is relevant read:

"Any property possessed by a female Hindu.....after the

commencement of this Act shall be held by her as full owner

and not as a limited owner". In other words, though the

instrument, grant, award or deed creates a limited estate or

a restricted estate, as the case may be, it stands

transformed into an absolute estate provided such property

is given to a female Hindu in lieu of maintenance and is

placed in her possession. So far as the expression

"possessed" is concerned, it too has been the subject-matter

of interpretation by several decisions of this Court to

which it is not necessary to refer for the purpose of this

case.

The learned counsel for the respondents-plaintiffs

relied upon a recent decision of this Court in Gumpha v.

Jaibai (1994 (2) S.C.C.511) in support of his contention

that in the facts of this case, it is sub-section (2) of

Section 14 and not sub-section (1) that is attracted. But

that was a case where certain property was given to a Hindu

female under a Will. The Bench held that since Will is

referred to only in sub-section (2) and not in sub-section

(1), it is sub-section (2) that is attracted in the case of

a property bequeathed under a Will. Since, the suit lands

were given to Harmel Kaur under a compromise - and not under

a Will - the principle of the said decision has no

application herein.

For the above reasons, we hold that the said lands

became the absolute property of Harmel Kaur the moment she

was placed in possession thereof. (It is not disputed that

the said property was indeed placed in her possession and

that she was in possession and enjoyment thereof from the

date of the aforesaid compromise.) Once this is so, the suit

must fail. The courts below were in error in holding that

because the compromise whereunder the said lands were given

to Harmel Kaur towards her maintenance, created a life

estate and a restricted estate, sub-section (1) of Section

14 is not attracted and that it is sub-section (2) that is

attracted here.

The appeal is allowed. The judgment and decree of the

trial court as affirmed by the first and second appellate

courts are set aside and the suit is dismissed. There shall

be no order as to costs.