- (1.) THIS is a judgment-debtor's second appeal against an appellate order of the District Judge Pali confirming an appeal of the Civil Judge, Sirohi, dismissing her objection under sec. 47 C. P. C.
(2.) THE facts which have given rise to this appeal are these. THE decree-holders obtained a simple money decree against the assets of Harakchand deceased in the hands of his mother Smt. Kankoo widow of Prithvi Raj and in execution got a house attached. Smt. Kankoo filed an objection that the house was the self acquired property of her husband Prithvi Raj, that she was in possession over it in exercise of her right of maintenance and residence and that it could not be sold in the execution of the decree. THE decree-holders filed a reply contesting the allegations of fact made in the application and asserting that the house was liable to be sold in execution of the decree. THE executing court gave an opportunity to the parties to produce their evidence. Smt. Kankoo examined herself and supported the allegations of fact made in her objection. No evidence was produced on behalf of the decree holders. THE executing court dismissed the objection on the ground that the house was inherited by Harakchand from his father Prithvi Raj and on the death of Harakchand his mother inherited it from her son and consequently the house was liable to sale for payment of the debts of Harakchand. Against this order Smt. Kankoo filed an appeal. THE contention put forward on behalf of the appellant before the learned District Judge was that Smt. Kanko was in possession over the house in exercise of the right of maintenance when the Hindu Succession Act 1956 came into force and she became full owner of the property under sec. 14 of that Act and consequently it was not liable to be sold in execution of a simple money decree against the assets of Harakchand in her hands. This contention was not accepted by the learned District Judge. It is not disputed that the house which has been attached was the self acquired property of Prithivi Raj husband of Smt. Kankoo. On the death of Prithvi Raj his son Harakchand became the owner of it. The house was joint family property in the hands of Harakchand. In this property Prithvi Raj's widow Smt. Kankoo had a right of residence. Harakchand was also liable to maintain Smt. Kankoo out of this property. Both the mother and the son lived in this house till the son died sometime before the coming into force of the Hindu Succession Act 1956. On the date when the Act came into force Smt. Kankoo was in possession of the house. She had a right of residence in the house which was the family dwelling house. She had also a right of maintenance against this property. What was attached was Harakchand's interest in the house. That interest was the ownership of the house burdened with the right of residence and maintenance. Both these rights are substantive rights which are attached to property. These rights are enforceable against a transferee if he has notice thereof. These lights can only be defeated if it becomes necessary to sell the property to pay off the husband's debts or to discharge a legal necessity of the joint family. It is not the case of the decree-holders that the debt in respect of which the present decree was passed against Smt. Kankoo was contracted for family necessity. The house could therefore be sold under the law as it stood before the Hindu Succession Act subject to the right of maintenances and residence of Smt. Kankoo. Sec. 14 of the Hindu Succession Act runs as follows: - " (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, or in lieu of maintenance or arrears of maintenance, or by gift from 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-sec. (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. " The contention on behalf of the appellant is that as Smt. Kankoo was possessed of the house in lieu of maintenance and in exercise of maintenance he became full owner of it tinder the above provision of law. I am unable to accept this contention. The relevant words of the Explanation are "property. . . . . . . . . acquired by a female Hindu. . . . . . . . . in lieu of or arrears of maintenance. . . . . . . . . or any other manner whatsoever". Property can only be said to have been acquired in lieu of maintenance or arrears of maintenance if it is given absolutely to her by the coparceners in lieu of maintenance or arrears of maintenance. By residing in a house in exercise of her right of residence a woman never acquires the property in the house. It is not the case of Smt. Kankoo that the house was given to her absolutely in lieu of maintenance or arrears of maintenance. The words in sub-sec. (1) to the effect that any property possessed by a female Hindu. . . . . . . . . shall be held by her as full owner thereof and not as a limited Owner" clearly go to show that the section only applies to cases where a woman is in possession of some property as a limited owner when the Hindu Succession Act 1956 came into force. It has no application to cases in which the woman is not in possession as a limited owner, but is in possession otherwise than as an owner, e. g. when she is in possession in exercise of her right of residence or maintenance. In this connection a reference may be made to Harak Singh Vs. Kailash Singh (1), Bakhtawari Vs. Sadhu Singh (2) and Mst. Mohari Vs. Mst. Chuki (3 ). In the last mentioned case it was observed that one of the essential pre-conditions for attracting the benefit of sec. 14 is that the female Hindu must have in the first place "acquired property" as contra-distinguished for example, from a mere right of maintenance or residence. There is no doubt that a Hindu woman's right of maintenance out of the joint family property is akin to a charge and a transferee with notice of the right gets the property subject to it - see the Secretary of State Vs. Ahalyabai (4) and sec. 39 of the Transfer of Property Act. But a woman who is in possession of the joint family property in exercise of her right of maintenance cannot be regarded as a limited owner of that property so as to attract the provision of sec. 14 (1) of the Hindu Succession Act 1956. On behalf the appellant reliance was placed on the following observations made by their Lordships of the Supreme Court in Kotturuswami Vs. Veeravva (5) : - "it is sufficient to say that "possessed" in sec. 14 is used in a broad sense and in the context means the state of owning or having in one's hand or power. " Their Lordships were dealing with a case in which the widow of the last male owner had taken a son in adoption who came into possession of the property before the Hindu Succession Act 1956 came into force. The validity of the adoption was being challenged. If was [argued before their Lordships on behalf of the respondents that even if the adoption was invalid the widow became the full owner of the property on the coming into force of the Act. The contention on behalf of the appellant was that as the widow was not in possession on the date of the coming into force of the Act sec. 14 was not attracted. They were examining the meaning of the word "possessed" as used in sec. 14. There was no dispute that the widow was the limited owner of the property on the date the Act came into force even if the adoption was invalid. It was in that connection that the above observation was made. It cannot be inferred from that observation that sec. 14 would be attracted if the Hindu woman is in physical possession of some property without being its limited owner. The term "limited owner" as used in sec. 14 obviously refers to a Hindu woman's estate under the Hindu Law as it stood before the enactment of the Hindu Succession Act. I accordingly hold that Smt. Kankoo did not become the full owner of the property on the coming into force of the Hindu Succession Act. All that she had was possession over the house in exercise of her right of maintenance and residence. The house was liable to be sold in execution of the present decree subject to her right of maintenance and residence. The learned District Judge was in error in thinking that it was for Smt. Kankoo to take an objection! that the debt on the basis of which the decree was passed was taken by Harak Chand without legal necessity. The burden lay on the decree-holder to allege and prove that the debt was contracted for legal necessity. No such plea having been taken by the decree-holders the sale will be subject to the right of residence and maintenance of Smt. Kankoo. Nor does sec. 26 of the Hindu Adoptions and Maintenance Act defeat these rights. For Smt. Kankoo is not a dependant of Harak Chand. She is a dependant of her husband Prithvi Raj so far as the attached house is concerned and only the debts of Prithvi Raj could have priority over her right of maintenance and residence. It may be mentioned here that she claims maintenance as the widow of Prithvi Raj whose self acquired property the house in dispute is. If the house had been the self acquired property of Harak Chand and Smt. Kankoo claimed maintenance as a dependant of Harak Chand then the position would have been different. She would then be claiming maintenance as a dependant of Harak Chand and the debts of Harak Chand would have priority over the claims of her maintenance and residence. In view of my findings above the appeal is allowed in part and is dismissed in part. Smt. Kankoo did not become the full owner of the house. But her right of maintenance and residence takes priority over the debts of Harak Chand and the house will be sold in execution of the decree passed against Harak Chand's assets in her hands subject to her right of maintenance and residence. In the circumstances of the case, I direct that parties shall bear their own costs of this objection throughout. . ;