Decided on November 17,1960

TULSIRAM Respondents

Referred Judgements :-



CHHANGANI, J. - (1.)THIS is an appeal by the defendant Idol Shri Satyanarainji through the Panchas of the Kalal community, Bundi against the judgment of the Civil Judge, Bundi setting aside the dismissal of the suit of the plaintiff-respondent Tulsiram by the Munsiff, Bundi and remanding the case for trial on merits.
(2.)THE facts leading to this appeal are these: One Mst. Shiv Kanwari, who was defendant No. 11 in the plaint initially filed by the respondent Tulsiram, was previously married to one Mangilal of Thikarda. After Mangilal's death, she contracted a second marriage with one Gopilal who was the brother of the respondent Tulsiram. Subsequent to the death of Gopilal, on 19. 11. 55, Mst. Shiv Kanwari executed a deed of gift in respect of a house in favour of the panchas of Kalal community of Bundi for being converted into a temple and installation of the idol of Sri Satyanarainji therein. In the gift deed it was recited that the house had been built by her with the money which she had inherited from her first husband Mangilal and that the property was her absolute property.
Tulsiram,the respondent, instituted a suit on 5-12-55 in the Court of Munsif Bundi for a declaration that : (1) the house was the property of the deceased Gopilal and that Mst. Shiv Kanwari was not competent to gift it and that the gift is not binding upon him so as to affect his reversionary interest. During the pendency of the suit, the Hindu Succession Act (herein after called the Act) came into force on 17th June, 1956. Sec. 14 of the Act, which has given rise to the controversy in this litigation provides: "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. " Mst. Shiv Kanwari died on 7. 8. 1956 admittedly after the promulgation of the Act. The plaintiff thereupon was permitted to strike the name of Mst. Shiv Kanwari from the array of the defendants and to add a relief for possession against the remaining defendants.

The trial Court, on the pleadings of the parties, framed four issues. The third issue, which is relevant, was framed as under : - fgunw mrjkf/kdkjh ,dv lu~ 1956 dk nkosa ij D;k izhkko im+k\ The trial Judge took up issue no. 3 first and recorded the following conclusions : - (i) That in spite of the gift, Shiv Kanwari continued to be in possession of the house till her death and that the other defendants took possession of the house only after her death, (ii) Being in possession of the property at the commencement of the Act, she became an absolute owner of the property under sec. 14 of the Act,

On the question, whether the alienees can take the benefit under sec. 14 of the Act and claim full ownership, the Munsif relied upon Dhirajkunwar Vs. Lakhansingh (1) and Mst. Janki Kuer Vs. Chhathu Prasad (2) and held in favour of the alienees. The contrary decisions in Gostha Behari Bera Vs. Haridas Samanta (3), Hari Kishen Vs. Hira (4), Thailambal Ammal Vs. Kasavan Nair (5) and Gaddam Venkayamma Vs. Gaddam Veeraya (Died) (6) were not followed by the Munsif. In the result, he dismissed the plaintiff's suit.

On an appeal by the plaintiff, the Civil Judge, Bundi took a contrary view. He held that after the gift the possession of Mst. Shiv Kanwari was merely physical and was not in the capacity of an owner. Sec. 14 of the Act, according to him, does not enable a female occupant of property to claim absolute ownership on a mere physical possession without reference to the question of title. It only enables a limited owner in possession of the property at the time of commencement of the Act to be treated as an absolute owner of the property. Dealing with the question as to whether the alienees from the limited owner can resist the suit of the reversioners after the promulgation of the Act. he discussed the various authorities expressing conflicting opinions. The Patna and the Allahabad cases, which favoured the alienees and denied a right to the reversioners to file a suit, were considered as not laying down good law. The cases of the other High Courts which permitted the reversioners to challenge invalid alienations by the widows even after the Act, were followed by the Civil Judge, Bundi. In this view of the law, he held the suit maintainable and remanded the case to the Court of Munsif for disposal after deciding other issues. The defendants have come in second appeal.

The effect of sec. 14 of the Act has been considered in two decisions of this Court. The first is a decision of a Single Judge reported in Bhairav Lal vs. Ram Gopal and others (7 ). In that case one Smt. Pushpa who was a limited owner sold two shops before the promulgation of the Act. The reversioners filed a suit for a declaration that the sale of the shops was ineffective against them. The reversioners' suit was decreed by the two courts. During the pendency of the second appeal the Act came into force. The applicant claimed benefit under sec. 14 of the Act. The single Judge following the three Patna cases reported in Ram Ayodhya Missir Vs. Raghunath Missir (8), Baijnath Potedar Vs. Ramautar Chou-dhary (9) and Mt. Janki Kuer Vs. Chhathu Prasad (2) held that Mst. Pushpa Bai became full owner of the property which was acquired by her even before its commencement and hence all the reversionary rights of the plaintiff came to and end after the commencement of the Hindu Succession Act, 1956. Later on a bench of this Court of which I was a member, expressed a different opinion in Mst. Mohari Vs. Mst. Chukli (10) in the following words : "but this section, in our judgment, would have no application where a female Hindu never acquired any property at all, or where, having acquired it, she happens to have lost her title thereto by alienation, surrender or otherwise and of which such was nor or could not be said to be in juridical possession at the commencement of the Act of 1956. The learned counsel for the appellants contended that the case in which these observations were made was not one in which the alienees claimed any benefit of sec. 14 of the Act and, therefore, the observations made in that case should be interpreted only with reference to the facts of that case and should not be taken as an authoritative statement of law as general. It is true that the facts of that case were slightly different but after hearing the learned Advocates for the parties and going through the various cases cited at the Bar I have come to the conclusion that the general observations made in that case lay down the correct law and should govern the present case also. It will be unnecessary to undertake a comprehensive examination of the various cases expressing conflicting opinions in view of the recent authoritative pronouncement of Supreme Court in Gummalapura Teggina Matada Kotturuswami Vs. Setra Veeravva (n ). Before the Supreme Court judgments also the majority of the High Courts had taken the view that the object of sec. 14 is not to enlarge the estate of the alienee but to confer benefits on females who had limited ownership only. The Allahabad High Court in B. Hanuman Prasad And Others Vs. Mst. India wati (12) the Patna and Madhya Pradesh High Courts in some earlier cases had expressed contrary views favouring the alienees observing that sec. 14 of the Act abolishes the reversionary clause and that the words 'possessed' in sec. 14, refer also to possession by the female owner in the past. Later on the Patna and Madhya Pradesh High Courts by their full bench judgments abandoned the earlier view and fell in line with other High Courts. The Supreme Court after referring to the various cases summed up the position as follows: - "indeed, the Patna High Court in the case of Harak Singh Vs. Kailash Singh, AIR 1958 Patna 581 (FB) overruled its previous decisions referred to above and rightly pointed out that the object of the Act was to improve the legal status of Hindu women, enlarging their limited interest in property inherited or held by them to an absolute interest, provided they were in possession of the property when the Act came into force and, therefore, in a position to take advantage of its beneficial provisions; but the Act was not intended to benefit alienees who with their eyes open purchased the property from the limited owners without justifying necessity before the Act came into force and at a time when the vendors had only a limited interest of Hindu women. " These observations in unmistakably terms lay down the law that the alienees from limited owners can not claim improvement of their estate by reference to sec. 14 of the Act. The contrary opinion expressed in the cases noticed above stands overruled. The Civil Judge, Bundi was accordingly quite justified in holding that the alienees from Hindu widows under alienations made before the promulgation of the Act cannot take advantage under sec. 14 of the Act.

Mr. Kishore Singh, however, laid emphasis on the following observations in the judgment of Supreme Court: "in the present case if the adoption was invalid, the full owner of Veerappa's estate was his widow Veeravva and even if it be assumed that the second defendant was in actual possession of the estate his possession was merely permissive and Veeravva must be regarded as being in constructive possession of it through the second defendant. In this situation, at the time when the Act came into force, the property of Veerappa must be regarded in law as being possessed by Veeravva. " It was contended that if the gift is invalid the possession being with the donee the donor in view of the above observations must be treated to be in constructive possession of the property on the basis of the possession of the donee. It was submitted that a case of invalid gift and invalid adoption should be treated on the same footing. This question has been recently determined by a full bench of the Punjab High Court in Amar Singh Vs. Sewa Ram (13 ). The majority consisting of Mehar Singh & K. L. Gosain JJ. held that: "the case of a gift by the widow made to the daughter of the last male owner stands at par with the case of a sale. The effect of an invalid gift by her is not the same as the effect of an invalid adoption. " S. S. Daulat J. however, however, took a contrary view. Mehar Singh J. discussed in detail the effects of invalid adoption and invalid gift and stated that: "under the invalid adoption an adopted son acquires no right in the adoptive family, but in the case of invalid gift, the gift is good as against Hindu female for her life and as against the reversioners until avoided. . . . . . Any declaration with regard to alienation (the underlined is mine) that a reversioner obtains in such a case is always effective only after the death of the Hindu female. In the case of invalid adoption no right in the property of the adoptive family passes to the adopted son, but in the case of an invalid gift by a Hindu female, the property passes to the donee to the extent of the life interest of such a female, though the gift can be avoided by the reversioner as not affecting his reversionary rights after the death of such a female. " In view of these fundamental differences between the effects of invalid adoption and invalid gifts the learned Judge did not treat the Supreme Courts observations to govern the cases of gifts by limited female owners. I am in full agreement with the view taken by Mehar Singh J. with whom Gosain J. agreed in the following words : - "in the present case, however, the widow had made a gift and the donee had come into possession of the property in his own right in his capacity as a donee. The alienation was binding on the widow and she could not in any case, oust the donee frome possession even though the gift may not be binding on the reversioners of her husband. The analogy of adoption cannot possibly apply to the case where an alienation had been made. This case is at par with the case where a sale has been made by a widow and the vendee has come into possession of the property in his own rights. The gift in one case and the sale in the other may be open to attack at the instance of reversioners, but they are not open to attack at the instance of the widow. The donee or the vendee, whatever the case may be must be deemed to be in possession of the property in his own rights and the widow, therefore, must be deemed to have parted with the possession. " The gift being binding upon the limited owner and a declaration of invalidity being available only for the benefit: of the reversioners after the death of the limited owner, a limited owner can not on a declaration in favour of a reversioner, be deemed to come into juridical possession of the property and claim her poseession through the donee who continues to be in possession in his own right except as against the reversioners. In this view of the law the argument of the learned Advocate for the appellant based on the observations of the Supreme Court in connection with the effects of invalid adoptions can not be accepted.

Lastly, it was contended that as per plaint itself Mst. Shiva Kanwari continued to be in possession till her death and was thus in possession of the property at the time of the promulgation of the Act and, therefore, she was entitled to acquire absolute estate on a proper construction of the language of sec. 14 and the alienees can avail of the subsequent improvement of the estate on the basis of an earlier absolute transfer in their favour. The defendants of course did not admit the position taken up by the plaintiff. The trial Court did not frame any issue on these allegations and no enquiry has been made. Each party emphasises and relies upon the admission of the other side. In my opinion, however, nothing material turns upon the question whether Mst. Shiv Kanwari did not repudiate the gift and did not assert her right. Possession of Mst. Shiv Kanwari even if held was mere physical possession ; the real juridical possession remaining with the trustee-defendants. In the very nature of things sec. 14 contemplates not mere physical possession but possession as an owner through (a limited one) as a condition precedent for the creation of an absolute ownership. Musamat Shiv Kanwari having parted with the ownership by means of gift, she can not claim any improvement of the estate by merely continuing in physical possession after the gift as she can not but be deemed to possess the house on behalf of the donees. Mr. Kishore Singh in this connection placed reliance upon Jamuna Choudhuri Vs. Ramarup Singh (14 ). The facts of that case are substantially different. There the reversioners themselves had pleaded that the alienation by the widow was a sham transaction and that she was in actual possession. On those facts the learned Judge rightly held that the widow was in juridical possession of the property at the time of the promulgation of the Act and that she would hold the property thereafter as a full owner. The decision of that case can not be of much use in the present case where the plaintiff did not come forward with a case that the gift was a sham transaction.

(3.)IN the light of the fore-going discussions, I have no doubt that the decision of the lower appellate court is based upon a correct view of law and is fully justified. The appeal has no merits and is consequently dismissed. IN the circumstances of the case, the parties are left to bear their own costs in this Court. .

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