LODHA, J. - (1.) THE plaintiff-respondent Shanker Lal filed the suit out of which this appeal arises against Ramkaran Lal (who died during the pendency of this litigation and is red-resented by his legal representatives Smt. Gaumati and others (appellants) for declaring that the will Ex. 3, dated 3-2-1961 made by Smt. Kalawati is ineffective against the plaintiff and further that a decree for possession of the ground-floor of the house and other movable property, ornaments etc. bequeathed by Smt. Kalawati to Ramkaran Lal be granted in his favour. THE trial court decreed the suit for possession of the ground floor of the house and its judgment and decree were affirmed by the District Judge, Bharatpur, and consequently the legal representatives of Ram Karan Lal have filed this appeal.
(2.) A few relevant facts may now be stated. One Jagan Nath had three sons Chaturbhuj, Ramkaranlal (defendant) and Shanker Lal (plaintiff ). Chaturbhuj died in St. 1967, i. e. in the year 1910/11 A. D. leaving behind his widow Smt. Kalawati but no issue. Ramkaranlal went in adoption to one Ramchander some time in S. 1973 i. e. 1916-17 A. D. As already stated above, on 3. 2. 1961 Smt. Kalawati executed a will of the property in question in favour of Ramkaranlal and died about a month later. On the death of Smt. Kalawati, Ramkaranlal took possession of the property willed to him by Smt. Kalawati and thereupon Shankerlal filed the present suit on the ground that Ramkaranlal had gone in adoption to another family, and was not entitled to get any share in the family of his birth and further that Smt. Kalawati had no right to will away the property in question. The suit was resisted by Ramkaranlal mainly on the ground that Smt. Kalawati became absolute owner of the property by virtue of S. 14 (1) of the Hindu Marriage Act No. 31 of 1956 which came into force on 17-6-1956. The court below held that since Smt. Kalawati did not acquire even limited ownership to the property in question on the date of the commencement of the Hindu Succession Act (hereinafter to be referred to as 'the Act') she could not become full owner thereof and consequently the will executed by her in respect of the property in question was not valid. The only point for decision in this case is as to whether on the coming into force of the Act Smt. Kalawati became an absolute owner of the property in question. If she did, the suit is liable to dismissed and if she did not, it has been rightly decreed by the courts below. Learned counsel for the appellants has urged that even the plaintiff has admitted in paras Nos. 2 and 6 of the plaint that on the death of Chaturbhuj, husband of Smt. Kalawati, the latter got a right of residence and maintenance out of the property of Jagannath Prasad, father of her deceased husband. He has further invited my attention to the statement of the plaintiff Shankerlal, P. W. 1, Shankerlal has stated that Smt. Kalawati used to reside in the portion of the house which had been willed by her D W. 1 Ramkaranlal has also stated that the disputed premises which had been willed away to him had been continuously in possession of Smt. Kalawati for a period about 50 years from the date of the death of her husband to the date of her own death. On the basis of the aforesaid averments in the pleadings and the evidence, the learned counsel has argued that the property in question was possessed by Smt. Kalawati on the date of coming into force of the Act and that the same had been acquired by her in lieu of maintenance. In support of his contention he has placed reliance on Rani Bai vs. Yadunandan (l) and B. B. Patil vs. Gangabai (2 ). On the other hand, learned counsel for the respondent has urged that the property in question was never acquired by Smt. Kalawati and she had not a vestige of title to it. The house in question was given to her only for residence and a person who had only a right of residence in the property cannot be said to have acquired the property. In other words his contention is that sec. 14 of the Act has no application to the present case. In support of his contention learned counsel has relied upon Rao Raja Tejsingh vs. Hastimal (3), Mt. Mohari vs. Mst. Chukli (4 ). He has further argued that the plea of acquisition of the property in question by Smt. Kalwati is negatived by the judgment Ex. 2. Before I embark upon the consideration of the points canvassed before me, it may be relevant to reproduce sec. 14 of the Hindu Succession Act: "14 (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. . . . . It is beyond dispute that the house in question was in actual possession of Smt. Kalawati on the date of coming into force of the Act So also there is no controversy between the parties that Smt. Kalawati was entitled to get maintenance out of the joint family property. The bone of contention, however, is whether in the facts and circumstances of the case it can be said that the property was acquired by Smt. Kalawati in lieu of maintenance or in any other manner. Of course there is no clear evidence on the record that the property was given to Smt. Kalawati in lieu of maintenance.
(3.) IN Rani Bai vs. Yadunandan (l) the facts were that one Jangi Jogi had a son named Laldas who pre-deceased the former leaving behind his widow Rani Bai. After the death of Laldas, Jangi Jogi married Mst. Jugli and died two years after their marriage. After Jangi Jogi's death, Mst. Jugli gifted the property in dispute to Yadunandan who obtained possession of the same in the course of criminal proceedings under sec. 145 Cr. P. C. Thereupon Mst. Jugli and Smt. Rani Bai jointly instituted a suit for declaration in respect of their rights, and for possession of the property. Jugli Bai filed an application under O. 23, R. 3 Civil P. G. and the question arose before their Lordships as to whether Rani Bai was entitled to the property from Yadunandan. It was observed by their Lordships that Rani Bai was entitled to receive maintenance out of the share of her father-in-law and that although her claim for maintenance was not a charge upon the estate until it had been fixed and specifically charged thereupon, her right was not liable to be defeated except by transfer to a bona fide purchaser for value without notice. They further observed that the Courts in INdia have taken the view that where a widow is in possession of a specific property for the purpose of her maintenance, a purchaser buying with notice of her claim is not entitled to possession of that property without first securing proper maintenance for her (vide Rachawa vs. Shivayogappa 1894 ILR Bom. 679 ). It was observed - "it is clear from the provisions of the Explanation appearing in sec. 14 of the Hindu Succession Act that a situation was contemplated where a female Hindu could be in possession of joint family properties in lieu of maintenance. It may be mentioned that after the enforcement of the Hindu Adoption & Maintenance Act, 1956 the rights of widowed daughter-in-law to maintenance are governed by sec 19 of that Act which, however, could not be applicable. IN the present case, it is difficult to understand how the appellant could be deprived of the possession of properties by a trespasser. Moreover she was presumably in possession of these properties in lieu of her right of maintenance and could not be deprived of them even by Jugli Bai without first securing proper maintenance for her out of the aforesaid properties. " (The italic is mine) It is true that their Lordships held Yadunandan Lal a trespasser and granted a decree for possession in favour of Rani Bai but in this connection they observed that the appellant (Rani Bai) was further entitled to remain in possession if she could establish that she had entered into possession by virtue of her claim or right to maintenance until the person laying a claim to the estate of Jangi Jogi made some proper arrangement for the payment of maintenance to her. " However, their Lordships did not express any final opinion as the suit had been remanded for a fresh decision on questions of fact and law. In B. B. Patil vs. Gangabai (2) the suit properties had been allotted to the widow Heera Bai under an award in lieu of maintenance lor life with a restricted power of alienation. In view of the award it was held that on the date of commencement of the Act of 1956 Hira Bai was a limited owner within the contemplation of sub-sec. (1) of sec. 14 of the Act and was entitled to become the full owner on that date. A contention was raised on behalf of the opposite party that the case fell within the exception embodied in sub sec. (2) of sec. 4 of the Act and the award created a restricted estate. This contention was, however, over-ruled and it was observed that the Explanation to sub-sec. (1) is wide enough to include the property acquired under an award to a decree, and that sub-sec. (1) will not cease to have effect. It was further held that the award was not the source of interest created but was merely declaratory of the right to the property antecedently enjoyed by the Hindu family. ;