Bharucha, J. - (1.) This appeal by special leave impugns the judgment and order dated 8th May, 1970 of the High Court of Rajasthan. The issue in the appeal relates to the application of Section 14(1) of the Hindu Succession Act, 1956. It stands outside the line of cases decided by this Court in that it is argued that, in giving maintenance, provision for residence is not to be made.
(2.) One Karam Chand had two sons, Dhanraj and Askaran. Dhanraj died in 1891 leaving no issue. Askaran had two sons, Johri Mal and Bhikam Chand. In 1905 Johri Mal was taken in adoption by Dhanraj's widow. After the adoption of Johri Mal, Askaran and Bhikam Chand remained co-parceners unit the death in 1911 of Bhikam Chand. Bhikam Chand left behind his wife Sukh Devi and a daughter. On 7th February, 1928, Askaran executed a will bequeathing his estate of Johri Mal, Sukh Devi, who has been living with her father-in law Askaran, protested; being the widow of a co-parcener she was entitled to be maintained out of joint family property. An agreement was then entered into between Askaran and Sukh Devi. it was dated 26th June, 1934. It recited that Sukh Devi had been boarding and lodging with Askaran, and that family disputes had arisen. To put an end to the family disputes, Askaran and Sukh Devi, by the agreement, appointed one Mool Chand as arbitrator to"allot property and cost for executant number 2 for her life for residence and maintenance". The arbitrator Mool Chand entered upon the reference and made an award on 9th July, 1934. He set out the particulars of properties belonging to Askaran at Bidasar and Ladnu and gave the choice of selecting one to Sukh Devi to "reside till her life time in them or in it and she can use it in any way she likes. On necessity she will get its pairs done with her own money. She will have no right to sell, mortgage or transfer in any other way. After her death, the properties stated in para No.1 or 2 (whichever she might take) will revert to Askaran, his heirs and legal representatives. Her right will be only in her life time. She is authorised to undertake construction for necessity and convenience. She may increase or decrease apartments with her money. But she will not be authorised to destroy, deteriorate its usefulness and condition, etc. 4. For the maintenance of Smt. Sukh Devi, I give my finding that it is better to give a lump sum instead of giving monthy or annually because she wants to receive money in lump sum. By giving lum sum, the disputes, which might arise from time to time at the time of demand and payment, might be avioded. Therefore I give my finding that Askaran will pay a sum of Rs. 45,000/- (rupees forty five thousand only) to Smt. Sukh Devi for maintenance in case the accepts the house at Ladnu and in case she takes the house and the Nohra at Bidasar, she will be given Rs. 37,000/- (rupees thirty seven thousand only). Since there is no apartment in the Nohra, Askaran will pay a sum of Rs. 1000/- (rupees one thousand only) more besides Rs. 37,000/- (rupees thirty seven thousand only) for constructing Dhalia, room for keeping grass and fodder and a Hauz........ (5) The money which will be given to her for maintenance will be her personal money and she can use it as she likes ............. (8) After the execution of the aforesaid terms, Askaran will be free from all kinds of litigations or compensation of Smt. Sukh Devi and she will have no right in the ancestral or personal properties of Askaran, his heirs or legal representatives. Further, Askaran, his heirs or legal representatives will also have no right in Smt. Sukh Devi's any property or her Shtridhan except noted in para No 3 ............." On 10th July, 1934, Sukh Devi executed a document wherein she stated that she had accepted the property at Bidasar under the terms of Mool Chand's award. She would "have right in the house and Nohra at Bidasar in the manner that I will go on residing in the said house at Bidasar till my life time and go on using the Nohra. I will keep the house and Nohra in my possession and sue them in the manner I like and on necessity, I will get it repaired with my money. I will be authorised to effect minor changes etc. by way of construction for my convenience, but I will not be authorised to waste or damage the said Haveli and Nohra. After my death the house will again revert to Askaran, his surviving sons and grandsons or other heirs and successors or legal representatives. My heirs and successors or legal representative will have no right of possession or ownership over the said property.... 3. The arbitrator has allowed me Rupees 37,000/- in case I take the house and Nohra at Bidasar (Nohra with Rs. 1000/- for constructing rooms). I agree to take this amount for my maintenance etc. over which I will have absolute right..... 7. In the end it is clearly stated that now I shall have no concern of any kind in the movable and immovable properties and the cash of Askaran which might be existing in this state or in British India or at any other place ...."
(3.) Askaran died on 24th April, 1945.;