MUNNI DEVI ALIAS NATHI DEVI (DEAD) THR LRS. & ORS. versus RAJENDRA ALIAS LALLU LAL (DEAD) THR LRS. & ORS. on 18 May 2022

AMUNNI DEVI ALIAS NATHI DEVI (DEAD) THR LRS. & ORS.

v.

RAJENDRA ALIAS LALLU LAL (DEAD) THR LRS. & ORS.(Civil Appeal No. 5894 of 2019)

BMAY 18, 2022

[AJAY RASTOGI AND BELA M. TRIVEDI, JJ.]

Hindu Succession Act, 1956: s.14 – Property of a femaleHindu to be her absolute property – Hindu widow – Right to hinduundivided property – Held: Hindu woman’s right to maintenance isCa tangible right against the property which flows from the spiritualrelationship between the husband and the wife – Where a Hinduwidow is found to be in exclusive settled legal possession of theHUF property, that itself would create a presumption that suchproperty was earmarked for realization of her pre-existing right ofDmaintenance, more particularly when the surviving co-parcener didnot earmark any alternative property for recognizing her pre-existing right of maintenance – Word “possessed by” and“acquired” used in s. 14(1) are of the widest amplitude and includethe state of owning a property – It is by virtue of s.14(1), that theHindu widow’s limited interest gets automatically enlarged into anEabsolute right, when such property is possessed by her whetheracquired before or after the commencement of 1956 Act in lieu ofher right to maintenance – On facts, defendant no.1-hindu widowwas staying in the suit property before the death of her uncle-in-law, and after his death was in possession and in charge of the saidFproperty, and was paying the house tax prior to 1956 and wascollecting the rent from the tenants in the suit property prior to andafter 1956 – In view of her pre-existing right to maintenance fromthe estate of the HUF of her husband and in view of her exclusivesettled possession of the suit property prior to and after thecommencement of the 1956 Act, the defendant no.1 had acquiredGthe suit property in lieu of her pre-existing right to maintenance,and that she had held the suit property as the full owner and notlimited owner by virtue of s. 14(1) – Thus, the High Court rightlyheld that defendant no 1 had pre-existing right to maintenance inthe suit property that had ripened into full ownership by virtue of s.H14(1) of the Act.

Dismissing the appeal, the Court

HELD: 1.1 From the plain reading of Section 14(1) of theHindu Succession Act, 1956 along with the Explanation thereto,it emerges that in order to become a full owner and not a limitedowner, of a property by virtue of Section 14(1), a female Hindu,before or after the commencement of Act of 1956, must be inpossession of the property, and it must have been acquired byher by inheritance or devise, or at a partition, or in lieu ofmaintenance, or arrears of maintenance or by gift from any person,whether a relative or not, before, at or after her marriage or byher own skill or exertion or by purchase or by prescription, or inany other manner whatsoever, or any such property must havebeen held by her as stridhana immediately before thecommencement of the Act. [Paras 10-11][889-H; 890-A-B]

1.2 In the instant case, the concern is with the claim ofdefendant no.1 of having become the full owner in respect of thesuit property on the ground that she was in settled legalpossession of the suit property before and after thecommencement of the Act, in lieu of her pre-existing right ofmaintenance, and such limited ownership right had fructified intofull ownership by virtue of Section 14(1). The Hindu Women’sRights to Property Act, 1937 conferred right on Hindu widow tothe property of her husband, who died after the commencementof the said Act of 1937 and not prior thereto. Defendant no.1’shusband having expired in 1936, the said Act of 1937 would notbe applicable to facts of the case. However, prior to the said Actof 1937, the right to maintenance of Hindu widow was recognisedin Shastric law. [Para 12][890-C-F]

1.3 Where a Hindu widow is in possession of the propertyof her husband or of the husband’s HUF, she has a right to bemaintained out of the said property. She is entitled to retain thepossession of that property in lieu of her right to maintenance.Section 14(1) and the Explanation thereto envisages liberalconstruction in favour of the females, with the object of advancingand promoting the socio-economic ends sought to be achievedby the said legislation. The words “possessed by” used in Section14(1) are of the widest possible amplitude and include the state A

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Aof owning a property, even though the Hindu woman is not inactual or physical possession of the same. Of course, it is equallywell settled that the possession of the widow, must be under somevestige of a claim, right or title, because the section does notcontemplate the possession of any rank trespasser without anyright or title. [Para 14][895-B-D]B

1.4 In the instant case, the husband of defendant no.1expired in 1936, GN, the father-in-law of defendant no.1 expiredin 1938 and HR, the brother of GN died in 1953. Plaintiff wasadopted by SB in the year 1916. HR, GN and SB had commonancestor GP. It is also not disputed that the suit property was anCancestral property in the hands of HR and GN. It is also notdisputed that defendant no.1 was staying in the suit property beforethe death of HR, and after his death she was in possession and incharge of the said property, and was maintaining herself bycollecting rent from the tenants who were occupying part of theDsuit property. [Para 15][895-D-F]

1.5 It clearly emerges that defendant no.1 was paying thehouse tax prior to 1956 and was collecting the rent from thetenants prior to and after 1956. Pertinently from the documentExhibit-54, it emerges that in 1940 defendant no.1, when sheEwas staying with her in-laws, had no source of maintenance, andtherefore she was granted Rs. 2.50 per month by way ofmaintenance, by the Punya Department of the Government. Sheclaiming to be a PARDANASHEEN lady had authorised theplaintiff to collect the said amount of maintenance. The saiddocument clearly shows that defendant no.1 was residing in theFsuit house since 1940. It was well established that defendant no.1was in possession of the suit house before and after the death ofHR in 1953 and had continued to remain in possession thereafterand was collecting rent from the tenants who were in occupationof part of the suit premises since 1955, till the date of filing of theGsuit in 1965 by the plaintiff. [Para 17][896-C-E]

1.6 It is clearly established that defendant no.1 had longsettled possession of the suit property, which she had acquiredin lieu of her pre-existing right to maintenance, prior to thecommencement of the Act of 1956, which entitled her to become H

a full owner of the suit property by virtue of Section 14(1) of thesaid Act. Her exclusive possession of suit property after the deathof HR in 1953 i.e., prior to coming into force of the said Act in1956, was not only not disputed but was admitted by the plaintiffin the plaint itself. Her pre-existing right to maintenance fromthe estate of the HUF of her husband was also well established.Her pre-existing right to maintenance, coupled with her settledlegal possession of the property, would be sufficient to create apresumption that she had a vestige of right or claim in theproperty, though no document was executed or specific chargewas created in her favour recognizing her right to maintenancein the property. [Para 18][896-E-H; 897-A-B]

1.7 In the Will executed by HR in favour of the plaintiff,there was no mention of the suit property. What was stated in theWill was that whatever movable and immovable property, whichbelonged to HR would be devolved upon the plaintiff. It was onlyin the Probate proceedings filed by the plaintiff in respect of thesaid Will, he had shown the suit property in the Schedule. It istrue that the objections raised by the defendant no.1 againstgranting of Probate in favour of the plaintiff were not accepted bythe Probate Court, and the alleged Will executed by HR in favourof the defendant no.1 was also not proved by her in the saidproceedings. Nonetheless, in view of her pre-existing right tomaintenance from the estate of the HUF of her husband and inview of her exclusive settled possession of the suit property priorto and after the commencement of the Act of 1956, the onlyconclusion which could be drawn, would be that the defendantno.1 had acquired the suit property in lieu of her pre-existingright to maintenance, and that she had held the suit property asthe full owner and not limited owner by virtue of Section 14(1) ofthe said Act of 1956. [Para 19][897-B-E]

1.8 A Hindu woman’s right to maintenance was not and isnot an empty formality or an illusory claim being conceded as amatter of grace and generosity. The Hindu woman’s right tomaintenance is a tangible right against the property which flowsfrom the spiritual relationship between the husband and the wife.Such right was recognized and enjoined under the Shastric Hindu

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ALaw, long before the passing of the 1937 and the 1946 Acts. ThoseActs merely gave statutory backing recognising the position aswas existing under the Shastric Hindu Law. Where a Hindu widowis found to be in exclusive settled legal possession of the HUFproperty, that itself would create a presumption that such propertywas earmarked for realization of her pre-existing right ofBmaintenance, more particularly when the surviving co-parcenerdid not earmark any alternative property for recognizing her pre-existing right of maintenance. The word “possessed by” and“acquired” used in Section 14(1) are of the widest amplitude andinclude the state of owning a property. It is by virtue of SectionC14(1) of the Act of 1956, that the Hindu widow’s limited interestgets automatically enlarged into an absolute right, when suchproperty is possessed by her whether acquired before or afterthe commencement of 1956 Act in lieu of her right to maintenance.The High Court rightly held that defendant no.1 had pre-existingright to maintenance in the suit property that had ripened intoDfull ownership by virtue of Section 14(1) of the Act of 1956. [Para20, 21][897-E-H; 898-A]

V. Tulasamma and Ors. vs. Sesha Reddy (Dead) by Lrs.(1977) 3 SCC 99 : [1977] 3 SCR 261 – relied on.

ERam Vishal (Dead) & Ors. by Lrs. v. Jagan Nath & Anr.(2004) 9 SCC 302; Dindayal & Anr. v. Rajaram (1970)1 SCC 786 : [1971] 1 SCR 298; Sadhu Singh v.Gurdwara Sahib Narike (2006) 8 SCC 75 : [2006] 5Suppl. SCR 799; Shrimati Rani Bai v. Shri YadunandanRam & Anr. (1969) 1 SCC 604 : [1969] 3 SCR 789;FMst. Gaumati v. Shankar Lal AIR 1974 Raj. 147; MoolKanwar v. Jeewa Lal AIR 1982 Raj. 267; Bai Vajia(Dead) by Lrs. v. Thakorbhai Chelabhai and Others(1979) 3 SCC 300 : [1979] 3 SCR 291; Raghubar Singh& Ors v. Gulab Singh & Ors. (1998) 6 SCC 314 : [1998]G3 SCR 555 – referred to.

Case Law Reference

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MUNNI DEVI ALIAS NATHI DEVI (DEAD) THR LRS.v. RAJENDRAALIAS LALLU LAL (DEAD) THR LRS.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5894of 2019.

From the Judgment and Order dated 20.07.2017 of the High Courtof Judicature for Rajasthan at Jaipur Bench, Jaipur in S.B. Civil FirstAppeal No. 120 of 1989.

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Puneet Jain, Mrs. Christi Jain, Harsh Jain, Ms. Yashika Sharma,Umang Mehta, Ms. Shrusti Singh, Yogit Kamat, Mann Arora,Ms. Pratibha Jain, Advs. for the Appellants.

Pallav Shishodia, Rishabh Sancheti, Ms. Padma Priya, AnchitBhandari, Surya Jain, Ms. Saloni Bhandari, K. Paari Vendhan, Advs. forthe Respondents.

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The Judgment of the Court was delivered by BELA M. TRIVEDI, J.

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1. The present appeal is directed against the judgment and decreedated 20.07.2017 passed by the High Court of Judicature for Rajasthan,Bench at Jaipur in S.B. Civil First Appeal No.120 of 1989, filed by theAppellants under Section 96 read with Order 41 of CPC, whereby theHigh Court while allowing the said First Appeal has set aside the judgmentand decree dated 05.08.1989 passed by the Additional District & SessionsJudge, Class-1, Jaipur (hereinafter referred to as “the trial court”) inCivil Suit No.56/73, and has dismissed the suit filed by the plaintiffDaulalji, the predecessor of the present appellants, against the defendantno. 1 Bhonri Devi, the predecessor of the present respondent Nos.1 to 3and others.

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2. In order to appreciate the controversy involved in the matter, itwould be beneficial to reproduce the genealogical table/pedigree of thefamilies of the parties.

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D3. The original plaintiff Daulalji filed the suit being No.56 of 1973seeking possession of the suit property alongwith the mesne profits, againstthe original defendant - Smt. Bhonri Devi, widow of Late Shri Dhannalaljiand against the other defendant Nos. 2 to 12, who were the tenants inthe suit property. The suit property is the house property bearing No.1875,Chokdi Topkhana Desh, Jaipur which was an ancestral property in theEhands of Harinarayanji and his brother Ganeshnarayanji. As per the caseof the plaintiff – Daulalji, he was adopted by Sri Bakshji, who was thegreat-grandson of their common ancestor Gopalji on 11.06.1916. Thehusband of the defendant No.1 Bhonri Devi, i.e., Dhannalalji predeceasedhis father Ganeshnarayanji in 1936. Ganeshnarayanji expired in 1938Fand his brother Harinarayanji died issueless on 11.11.1953. As per thefurther case of the plaintiff Daulalji, Harinarayanji had executed a Willon 30.07.1949 in his favour, and upon his death, on 11.11.1953, he hadbecome the owner of the suit property alongwith other properties ofHarinarayanji by virtue of the said Will. Upon the death of Harinarayanji,the defendant No.1 – Bhonri Devi started harassing the plaintiff andGtherefore the plaintiff left the suit property on 25.12.1953, and since thenthe defendant No.1 was in possession of the suit property. The defendantNos.2 to 12 were the tenants in the part of suit property. The plaintiffDaulalji claimed that after the death of Harinarayanji, he being the onlymale member in the family as well as the legatee under the Will ofHHarinarayanji, had become the sole owner of the suit property and, therefore, was entitled to recover the possession of the suit propertyfrom the defendant No.1 Bhonri Devi, who had no legal right or interestin the suit property.

4. The suit was resisted by the defendant No.1 Bhonri Devi byfiling the written statement, denying the averments and allegations madein the plaint. She also denied any Will having been executed byHarinarayanji in favour of the plaintiff Daulalji and further contendedthat Harinarayanji, with a view to take her care, after the demise of herhusband and father-in-law, had started residing with her in the suitproperty, however, the plaintiff never resided in the suit property. It wasfurther contended that the defendant Nos.2 to 12 were giving rent toher, she being the wife of Dhannalalji and daughter-in-law ofGaneshnarayanji, and thus, was in possession of the suit property as anowner and was maintaining herself from the income derived from thesuit property. It was also contended that the limited right vested in herfavour in the suit property, had enlarged into full ownership by virtue ofSection 14(1) of the Hindu Succession Act, 1956, which came into forceon 17.06.1956. She, therefore, contended that the suit at the instance ofthe plaintiff was not maintainable and was liable to be dismissed. Thedefendant Nos.2 to 8 and 10 to 12 had also filed their respective writtenstatements contending, inter alia, that the defendant No.1 Bhonri Deviwas the owner of the suit property, and they were her tenants and werepaying rent to her only.

5. It may be noted that the original plaintiff Daulalji expired on10.11.1983 and original defendant No. 1 Bhonri Devi expired on17.04.1979, pending the suit. Thereafter, the suit was prosecuted byMunnidevi, daughter of original plaintiff – Daulalji and the legalrepresentatives i.e. the nephews and niece of defendant No. 1 BhonriDevi, who were substituted in her place pending the suit. The suit wasdecreed by the trial Court on 05.08.1989, against which the First Appealbeing No. 120/1989 was preferred by the legal representatives of thedefendant no. 1 Bhonri Devi. Pending the appeal, Munnidevi, daughterof original plaintiff Daulalji also expired, and her legal representativeswere substituted in her place. The said First Appeal having been allowedby the High Court vide the impugned order dated 20[th] July, 2017, thepresent appeal has been filed by the heirs and legal representatives ofthe said Munnidevi (hereinafter referred to as “the appellants”) againstthe respondent nos. 1 to 4 (contesting respondents) and respondent nos.5 & 6 (Proforma respondents).

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ASubmissions:

6. The learned Advocate Mr. Puneet Jain appearing for theappellants assailing the impugned judgement passed by the High Courtmade multiple submissions as follows:

(i) The High Court had committed an error in holding that afterBthe death of Shri Ganeshnarayanji in 1938, a limited right inthe suit property was created in favour of Bhonri Devi andthat the said Bhonri Devi had a right of maintenance evenunder the old Shastric Law, which had fructified into a fullright under Section 14(1) of the Hindu Succession Act, 1956.CAccording to Mr. Jain, the Hindu Woman Right to PropertyAct, 1937 had no application to the facts of the presentcase, as the suit property was located in the erstwhile Stateof Jaipur, where the said Act was not applicable. In theState of Jaipur, the Hindu Woman Right to Property Act,1947 which came into force on 24.09.1947, was applicable,Dhowever, Shri Dhannalal having expired in 1936 andGaneshnarayanji having expired in 1938 i.e., before thecommencement of the Act of 1947, no limited right underthe Act of 1947 was created in favour of the said BhonriDevi. Even under Section 3(2) of 1937 Act, right in the jointEfamily property was created only in favour of the widow ofthe deceased and not in favour of a daughter-in-law of apre-deceased son. In this regard, he has placed reliance onthe decision of this Court in case of Ram Vishal (Dead) &Ors. by Lrs. Vs. Jagan Nath & Anr[1].

F(ii)Mere possession of property or a right to maintenance underthe old Shastric Law did not give any right to the defendantno. 1 Bhonri Devi under Section 14(1) of the said Act of1956. In this regard, Mr. Jain took the Court to the pleadingsof the parties and submitted that there was no specific plearaised by defendant no. 1 in this regard and it was only byGway of alternative contention raised in the written statement,the defendant no.1 had sought to ascertain the plea of herhaving become full owner under Section 14(1) of the saidAct of 1956.

H1 (2004) 9 SCC 302

(iii) There was no limited ownership created in favour of theAdefendant no.1 Bhonri Devi specifically in the suit propertyand that no presumption of limited ownership as sought tobe asserted by her could be raised. The presumption mustnecessarily flow from some statutory or customary law ofinheritance or by instrument or a decree or a device asBcontemplated in the Explanation II of Section 14(1) of theAct.

(iv) The possession of suit property was never given to thedefendant no. 1- Bhonri Devi in the nature of right to possessin lieu of her right of maintenance creating limited ownershipCin the suit property. Mere possession without any vestigeof right in property would not attract Section 14(1). Theexistence of a pre-existing “limited ownership” is a sinequa non for the application of Section 14(1), inasmuch as itis only the limited ownership which would fructify andblossom into a full ownership under the said provision.DWhere no such “limited ownership” is shown to have existed,Section 14(1) has no application.

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(v) Right to maintenance is not a “Right in a specific property”but it is a “Right against the properties of the joint familygenerally.”

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(vi) Mere right to maintenance without acquisition of title alsowould not be sufficient to attract Section 14. Placing relianceon the decision in case of Dindayal & Anr. vs. Rajaram[2],he submitted that before any property could be said to bepossessed by a Hindu Woman, as provided in Section 14(1)of the Act of 1956, it has to be established that the womanhad a right to the possession of the property in question andthat she must have been in possession of such propertyeither actually or constructively.

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(vii) A Hindu Female having a right to maintenance would notipso facto create any charge on the property. A right tomaintenance may amount to a legal charge if such chargeis created either by an agreement between the parties orby a decree. In this regard, Mr. Jain has relied upon the G

2 (1970) 1 SCC 786

Aprovisions of Section 27 of the Hindu Adoption andMaintenance Act, 1956 and the decision in case of SadhuSingh vs. Gurdwara Sahib Narike[3].

(viii) In the alternative, Mr. Jain submitted that the defendantno.1- Bhonri Devi’s claims based on her right toBmaintenance could be raised only qua the share of ShriGaneshnarayanji in the suit property which was to the extentof 1/4[th] of the suit property, and the remaining 3/4[th] share inthe property belonged to the legitimate right of Daulalji andhis heirs, as a consequence of the adoption of Daulalji andthe Will dated 30.07.1949 executed by Harinarayanji in hisCfavour. He also submitted that the probate in respect of thesaid Will was granted to the plaintiff Daulalji and that theclaim of rival Will set up by the defendant no. 1 BhonriDevi was negated by the Probate Court.

(ix) Lastly, he submitted that the suit property being an ancestralDproperty of the appellants, it should have been kept withintheir family and the present respondents who are thenephews and niece of the deceased Bhonri Devi, could notclaim any right in the suit property.

7. The learned Senior Advocate Mr. Pallav Shishodia appearingfor the contesting respondents, supporting the findings recorded by theEHigh Court in the impugned order, made following submissions:

(i) The exclusive possession of widow of HUF property itselfwould create a presumption that such property wasearmarked for realization of her pre-existing right ofmaintenance, more particularly when the surviving co-Fparcener did not earmark any alternative property forrecognizing her pre-existing right of maintenance. In thisregard, Mr. Shishodia has invited the attention of the Courtto the ratio laid down by this Court in case of ShrimatiRani Bai vs. Shri Yadunandan Ram & Anr[4]and theGjudgments of Rajasthan High Court in case of Mst.Gaumati Vs. Shankar Lal[5] and Mool Kanwar Vs. JeewaLal[6].

3 (2006) 8 SCC 754 1969 (1) SCC 6045 AIR 1974 Raj.147H6 AIR 1982 Raj.267

(ii) The exclusive possession of defendant Bhonri Devi, afterthe death of Harinarayanji was never questioned by theplaintiff Daulalji. The suit property was only about 1/4[th] ofthe total HUF properties held by Harinarayanji andGaneshnarayanji, yielding nominal rentals just enough forher sustenance, as compared to much bigger house at PuraniBasti, two shops at Chandpole and other properties takenaway by the original plaintiff-Daulalji.

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(iii) As regards the interpretation of Section 14(1) of the Act of1956, he submitted that the pre-existing right of maintenancein favour of a widow would have remained only a loftyCright throughout her life without any vindication, and wouldhave remained fettered at the mercy of surviving co-parceners, if the case of the plaintiff was accepted that thesaid Bhonri Devi enjoyed the suit property only by way ofgrace and concession of the plaintiff-Daulalji. Otherwise,the very purpose of Section 14(1) of the Act, which wasDenacted to confer absolute ownership on the Hindu widowin settled possession of HUF property in lieu of her pre-existing right of maintenance, would be frustrated. Mr.Shishodia drew the attention of the Court to the variousobservations made and findings recorded by this Court inEcase of V. Tulasamma and Ors. vs. Sesha Reddy (Dead)by Lrs[7]. According to him, once the pre-existing right wasrecognized, the consequences of Section 14(1) cannot bedenied to a Hindu widow.

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(iv) The expression “possession” contained in Section 14(1) isrequired to be given the widest possible meaning to includeactual as well as constructive possession, like attornmentof tenants in the present case. Likewise, the expression“acquire” is also required to be given a widest possiblemeaning to include acquisition by possession, especiallywhen such possession of widow already satisfied her pre-existing right of maintenance. To elaborate his submission,Mr. Shishodia has placed reliance on the decision of thisCourt in case of Bai Vajia (Dead) by Lrs. Vs. ThakorbhaiChelabhai and Others[8].

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7 (1977) 3 SCC 99

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8 (1979) 3 SCC 300

A(v)Till the death of Harinarayanji in 1953, he held HUFproperties as karta and the last surviving co-parcener inthe direct line. However, all the rights, title and interest ofHarinarayanji and his successor were subject to the pre-existing right of maintenance in favour of Bhonri Devi and,therefore, even Harinarayanji could not have bequeathedBmore than whatever right, title or interest he had in theHUF properties, by executing the Will, in view of Section30 of the Indian Succession Act, 1925. The plaintiff Daulalji,therefore, had also got the suit property as a legatee or co-parcener subject to the limited estate of Bhonri Devi, whoseCpre-existing right of maintenance from the suit property,made her absolute owner after Section 14(1) of the Act of1956 came into force.

Analysis:

Analysis:

8. Though number of issues were raised by the parties during theDcourse of trial before the Trial Court and during the course of the appealbefore the High Court, the learned Counsel Mr. Puneet Jain for theappellants has not disputed before this court that Bhonri Devi had a rightof maintenance from the estate of her husband’s joint family. He alsohas not disputed that Bhonri Devi was residing in the suit house sinceEthe time Harinarayanji was alive i.e., prior to 11.11.1953, and that afterthe death of Harinarayanji, Bhonri Devi continued to live in the saidhouse and was collecting the rent from the tenants who were occupyingpart of the suit premises. However, Mr. Puneet Jain has seriously disputedBhonri Devi’s right to maintenance from the suit property alone. He hasdisputed her claim of acquiring the suit property in lieu of her maintenanceFfor being a full owner, as contemplated in Section 14(1) of the Act.According to him, vestige of interest against the property could not besaid to be the same as the vestige in the property. In absence of creationof any charge or execution of a document recognising her right ofmaintenance in the suit property, it could not be said that she had pre-Gexisting or limited ownership in the suit property.

9. Similarly, learned Senior Advocate Mr. Shishodia for theconcerned respondents has also not pressed into service the contentionsraised by Bhonri Devi in the suit with regard to the plaintiff Daulaljibeing a stranger to the joint family of her husband, and with regard to hisHadoption by Sri Bakshji. He has also not pressed into service the issue with regard to the Will executed by Harinarayanji in favour of Daulalji.However, Mr. Shishodia urged that all rights, title or interest ofHarinarayanji were subject to the pre-existing right of maintenance ofBhonri Devi, and he could not have bequeathed by way of Will to Daulalji,more than whatever right or interest he had in the suit property. Admittedly,Bhonri Devi was in possession of the suit property and was collectingthe rent from the tenants occupying part of suit property. Therefore,according to Mr. Shishodia, her settled possession of suit property in lieuof her pre-existing right of maintenance, entitled her to become full ownerof the suit property in view of Section 14(1) of the Act of 1956.

10. The main issue therefore, whether Bhonri Devi, thepredecessor of the present respondents had become an absolute owneron coming into force the Act of 1956, revolves around the interpretationof Section 14 thereof. It reads as under:

“14. Property of a female Hindu to be her absolute property.—

(1) Any property possessed by a female Hindu, whetheracquired before or after the commencement of this Act, shallbe held by her as full owner thereof and not as a limitedowner.

Explanation.—In this sub-section, “property” includes bothmovable and immovable property acquired by a female Hinduby inheritance or devise, or at a partition, or in lieu ofmaintenance or arrears of maintenance, or by gift from anyperson, whether a relative or not, before, at or after hermarriage, or by her own skill or exertion, or by purchase orby prescription, or in any other manner whatsoever, and alsoany such property held by her as stridhana immediately beforethe commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to anyproperty acquired by way of gift or under a will or any otherinstrument or under a decree or order of a civil court or underan award where the terms of the gift, will or other instrumentor the decree, order or award prescribe a restricted estate insuch property.”

11. From the plain reading of Section 14(1) along with theExplanation thereto, it emerges that in order to become a full owner andnot a limited owner, of a property by virtue of Section 14(1), a female A

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AHindu, before or after the commencement of Act of 1956, must be inpossession of the property, and it must have been acquired by her byinheritance or devise, or at a partition, or in lieu of maintenance, or arrearsof 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 bypurchase or by prescription, or in any other manner whatsoever, or anyBsuch property must have been held by her as stridhana immediatelybefore the commencement of the Act.

12. In the instant case, we are concerned with the claim of BhonriDevi of having become the full owner in respect of the suit property onthe ground that she was in settled legal possession of the suit propertyCbefore and after the commencement of the Act, in lieu of her pre-existingright of maintenance, and such limited ownership right had fructified intofull ownership by virtue of Section 14(1). The High Court while discussingabout the right of a Hindu widow to the property, has observed that theHindu Women’s Right to Property Act, 1937 was in force in the yearD1937 when Ganeshnarayanji, father-in-law of Bhonri Devi expired in1938, and that even prior to the said Act of 1937, the right of Hinduwidow was recognised as per the old shastric customs prevalent in thearea. In our opinion, the Hindu Women’s Rights to Property Act, 1937conferred right on Hindu widow to the property of her husband, whodied after the commencement of the said Act of 1937 and not priorEthereto. Bhonri Devi’s husband Dhannalalji having expired in 1936, thesaid Act of 1937 would not be applicable to facts of the case. However,prior to the said Act of 1937, the right to maintenance of Hindu widowwas recognised in Shastric law. This court in case of V.Tulasammaand other vs. Sesha Reddy(Dead) (supra) has elaborately considered Fthe pre-existing right to maintenance of a Hindu woman while consideringthe provisions of Section 14 of the said Act of 1956. Justice fazal Ali, ashe then was, after quoting the authorities on the subject and elucidatingthe nature and extent of right of a Hindu wife to maintenance, summarisedthe position in para 62 as under: - G“62. We would now like to summarise the legal conclusionswhich we have reached after an exhaustive consideration ofthe authorities mentioned above on the question of lawinvolved in this appeal as to the interpretation of Sections14(1) and (2) of the Act of 1956. These conclusions may bestated thus:H

MUNNI DEVI ALIAS NATHI DEVI (DEAD) THR LRS.v. RAJENDRAALIAS LALLU LAL (DEAD) THR LRS. [BELA M. TRIVEDI, J.]

“(1) The Hindu female’s right to maintenance is not an emptyformality or an illusory claim being conceded as a matter ofgrace and generosity, but is a tangible right against propertywhich flows from the spiritual relationship between thehusband and the wife and is recognised and enjoined by pureShastric Hindu law and has been strongly stressed even bythe earlier Hindu jurists starting from Yajnavalkya to Manu.Such a right may not be a right to property but it is a rightagainst property and the husband has a personal obligationto maintain his wife and if he or the family has property, thefemale has the legal right to be maintained therefrom. If acharge is created for the maintenance of a female, the saidright becomes a legally enforceable one. At any rate, evenwithout a charge the claim for maintenance is doubtless apre-existing right so that any transfer declaring or recognisingsuch a right does not confer any new title but merely endorsesor confirms the pre-existing rights.

(2) Section 14(1) and the Explanation thereto have beencouched in the widest possible terms and must be liberallyconstrued in favour of the females so as to advance the objectof the 1956 Act and promote the socio-economic ends soughtto be achieved by this long-needed legislation.

(3) Sub-section (2) of Section 14 is in the nature of a provisoand has a field of its own without interfering with the operationof Section 14(1) materially. The proviso should not beconstrued in a manner so as to destroy the effect of the mainprovision or the protection granted by Section 14(1) or in away so as to become totally inconsistent with the mainprovision.

(4) Sub-section (2) of Section 14 applies to instruments,decrees, awards, gifts, etc. which create independent and newtitles in favour of the females for the first time and has noapplication where the instrument concerned merely seeks toconfirm, endorse, declare or recognise pre-existing rights. Insuch cases a restricted estate in favour of a female is legallypermissible and Section 14(1) will not operate in this sphere.Where, however, an instrument merely declares or recognisesa pre-existing right, such as a claim to maintenance or AB

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Apartition or share to which the female is entitled, the sub-section has absolutely no application and the female’s limitedinterest would automatically be enlarged into an absolute oneby force of Section 14(1) and the restrictions placed, if any,under the document would have to be ignored. Thus, where aproperty is allotted or transferred to a female in lieu ofBmaintenance or a share at partition, the instrument is takenout of the ambit of sub-section (2) and would be governed bySection 14(1) despite any restrictions placed on the powersof the transferee.

(5) The use of express terms like ‘property acquired by a femaleCHindu at a partition’, ‘or in lieu of maintenance’, ‘or arrearsof maintenance’, etc. in the Explanation to Section 14(1)clearly makes sub-section (2) inapplicable to these categorieswhich have been expressly excepted from the operation ofsub-section (2).

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(6) The words ‘possessed by’ used by the Legislature in Section14(1) are of the widest possible amplitude and include thestate of owning a property even though the owner is not inactual or physical possession of the same. Thus, where awidow gets a share in the property under a preliminary decreeEbefore or at the time when the 1956 Act had been passed buthad not been given actual possession under a final decree,the property would be deemed to be possessed by her and byforce of Section 14(1) she would get absolute interest in theproperty. It is equally well settled that the possession of thewidow, however, must be under some vestige of a claim, rightFor title, because the section does not contemplate thepossession of any rank trespasser without any right or title.

(7) That the words ‘restricted estate’ used in Section 14(2)are wider than limited interest as indicated in Section 14(1)and they include not only limited interest, but also any otherGkind of limitation that may be placed on the transferee.”

13. Following the said observations made in the case ofV.Tulasamma (supra), this court in Raghubar Singh & Ors vs GulabSingh & Ors[9]held as under:

H9 (1998) 6 SCC 314

“22. The judgment in Tulasamma case [(1977) 3 SCC 99] hasheld the field till date. (See also with advantage: RamKali v. Choudhri Ajit Shankar [(1997) 9 SCC 613]and Bhoomireddy Chenna Reddy v. Bhoospalli PeddaVerrappa [(1997) 10 SCC 673].)

23. Thus, we find that there is enough authority for theproposition that the right to maintenance of a Hindu femaleis a pre-existing right, which existed in the Hindu law longbefore the Act of 1937 or the Act of 1946 came into force andis not a creation of those statutes, which only recognised thatposition. In the words of Fazal Ali, J. in Tulasammacase [(1977) 3 SCC 99] : (SCC p. 135, para 62)

“(1) The Hindu female’s right to maintenance is not anempty formality or an illusory claim being conceded as amatter of grace and generosity, but is a tangible right againstproperty which flows from the spiritual relationship betweenthe husband and the wife and is recognised and enjoined bypure Shastric Hindu law and has been strongly stressed evenby the earlier Hindu jurists starting from Yajnavalkya toManu. Such a right may not be a right to property but it is aright against property and the husband has a personalobligation to maintain his wife and if he or the family hasproperty, the female has the legal right to be maintainedtherefrom. If a charge is created for the maintenance of afemale, the said right becomes a legally enforceable one. Atany rate, even without a charge the claim for maintenance isdoubtless a pre-existing right so that any transfer declaringor recognising such a right does not confer any new title butmerely endorses or confirms the pre-existing rights.”

24. Accordingly, we hold that the right to maintenance of aHindu female flows from the social and temporal relationshipbetween the husband and the wife and that right in the caseof a widow is “a pre-existing right”, which existed underthe Shastric Hindu law long before the passing of the 1937or the 1946 Acts. Those Acts merely recognised the positionas was existing under the Shastric Hindu law and gave it a“statutory” backing. Where a Hindu widow is in possessionof the property of her husband, she has a right to be A

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maintained out of it and she is entitled to retain the possessionof that property in lieu of her right to maintenance.

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25. Explaining the meaning of the expression “possessed” asused by the legislature in Section 14(1) of the 1956 Actin Tulasamma case [(1977) 3 SCC 99] this Court held: (SCCp. 136, para 62)

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“(6) The words ‘possessed by’ used by the legislature inSection 14(1) are of the widest possible amplitude and includethe state of owning a property even though the owner is notin actual or physical possession of the same. Thus, where awidow gets a share in the property under a preliminary decreebefore or at the time when the 1956 Act had been passed buthad not been given actual possession under a final decree,the property would be deemed to be possessed by her and byforce of Section 14(1) she would get absolute interest in theproperty. It is equally well settled that the possession of thewidow, however, must be under some vestige of a claim, rightor title, because the section does not contemplate thepossession of any rank trespasser without any right or title.”

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26. It is by force of Section 14(1) of the Act, that the widow’slimited interest gets automatically enlarged into an absoluteEright notwithstanding any restriction placed under thedocument or the instrument. So far as sub-section (2) ofSection 14 is concerned, it applies to instruments, decrees,awards, gifts, etc., which create an independent or a new titlein favour of the female for the first time. It has no applicationto cases where the instrument/document either declares orFrecognises or confirms her share in the property or her “pre-existing right to maintenance” out of that property. As heldin Tulasamma case [(1977) 3 SCC 99] sub-section (2) ofSection 14 is in the nature of a proviso and has a field of itsown, without interfering with the operation of Section 14(1)Gof the Act.”

14. In view of the above, there remains no shadow of doubt thata Hindu woman’s right to maintenance was not and is not an emptyformality or an illusory claim being conceded as a matter of grace andgenerosity. It is a tangible right against the property, which flows from

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the spiritual relationship between the husband and the wife. The saidright was recognised and enjoined by pure Shastric Hindu Law, whichexisted even before the passing of the 1937 or the 1946 Acts. ThoseActs merely gave statutory backing recognising the position as wasexisting under the Shastric Hindu Law. Where a Hindu widow is inpossession of the property of her husband or of the husband’s HUF, shehas a right to be maintained out of the said property. She is entitled toretain the possession of that property in lieu of her right to maintenance.Section 14(1) and the Explanation thereto envisages liberal constructionin favour of the females, with the object of advancing and promoting thesocio-economic ends sought to be achieved by the said legislation. Asexplained in V. Tulasamma (supra) case, the words “possessed by”used in Section 14(1) are of the widest possible amplitude and includethe state of owning a property, even though the Hindu woman is not inactual or physical possession of the same. Of course, it is equally wellsettled that the possession of the widow, must be under some vestige ofa claim, right or title, because the section does not contemplate thepossession of any rank trespasser without any right or title.

15. The undisputed facts in the instant case are that Dhannalalji,the husband of Bhonri Devi expired in 1936, Ganeshnarayanji, the father-in-law of Bhonri Devi expired in 1938 and Harinarayanji, the brother ofGaneshnarayanji died on 11.11.1953. Daulalji was adopted by Sri Bakshjiin the year 1916. Harinarayanji, Ganeshnarayanji and Sri Bakshji hadcommon ancestor Gopalji. It is also not disputed that the suit propertywas an ancestral property in the hands of Harinarayanji andGaneshnarayanji. It is also not disputed that Bhonri Devi was staying inthe suit property before the death of Harinarayanji, and after his deathshe was in possession and in charge of the said property, and wasmaintaining herself by collecting rent from the tenants who wereoccupying part of the suit property.

16. Now it appears from the documents on record that the rentnotes (Exhibit A-2 to A-11) executed during the period 1955 to 1965 inrespect of the part of the suit property, were executed in the name ofBhonri Devi. The concerned defendants in the suit had also filed theirwritten statements, stating that they were paying rent to Bhonri Devionly. It further appears from the document (Exhibit A-13) that Daulaljihad raised an objection against Bhonri Devi paying the house tax inrespect of the suit property and that the Municipal Commissioner, Jaipur AB

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Avide order dated 28.03.1957 had observed that Bhonri Devi was payingthe tax in the past also. An appeal against the said order was preferredby Daulalji before the Administrator of Municipal Council, Jaipur howeverthe same was also rejected vide the order dated 28.01.1959. It wasobserved therein that “In this case there is a dispute regarding ownership.Municipal Commissioner who is the reversing authority in his judgmentBdated 28.03.1957 held that Bhonri Devi who was paying tax to themunicipality in the past, should pay the tax and for question of title theconcerned party should seek remedy in the Civil Courts.”

17. From the said documents it clearly emerges that Bhonri Deviwas paying the house tax prior to 1956 and was collecting the rent fromCthe tenants prior to and after 1956. Pertinently from the document Exhibit-54, it emerges that in 1940 Bhonri Devi, when she was staying with herin-laws, had no source of maintenance, and therefore she was grantedRs. 2.50 per month by way of maintenance, by the Punya Departmentof the Government. She claiming to be a PARDANASHEEN lady hadDauthorised Daulalji to collect the said amount of maintenance. The saiddocument clearly shows that Bhonri Devi was residing in the suit housesince 1940. Be that as it may, it was well established that Bhonri deviwas in possession of the suit house before and after the death ofHarinarayanji in 1953 and had continued to remain in possession thereafterand was collecting rent from the tenants who were in occupation of partEof the suit premises since 1955, till the date of filing of the suit in 1965 bythe plaintiff Daulalji.

18. The afore-stated facts and circumstances clearly establishedthat Bhonri devi had long settled possession of the suit property, whichshe had acquired in lieu of her pre-existing right to maintenance, prior toFthe commencement of the Act of 1956, which entitled her to become afull owner of the suit property by virtue of Section 14(1) of the said Act.Her exclusive possession of suit property after the death of Harinarayanjiin 1953 i.e., prior to coming into force of the said Act in 1956, was notonly not disputed but was admitted by the plaintiff Daulalji in the plaintGitself. Her pre-existing right to maintenance from the estate of the HUFof her husband was also well established. The submission of Mr. Jainfor the appellants that mere right to maintenance would not ipso factocreate any charge on the property and that for creating legal chargerecognising right of Hindu women to maintenance required execution ofa document, device or agreement, cannot be countenanced. Her pre-H

existing right to maintenance, coupled with her settled legal possessionof the property, would be sufficient to create a presumption that she hada vestige of right or claim in the property, though no document wasexecuted or specific charge was created in her favour recognizing herright to maintenance in the property.

19. It may be noted that in the Will executed by Harinarayanji infavour of Daulalji, there was no mention of the suit property. What wasstated in the Will was that whatever movable and immovable property,which belonged to Harinarayanji would be devolved upon Daulalji. Itwas only in the Probate proceedings filed by Daulalji in respect of thesaid Will, he had shown the suit property in the Schedule. It is true thatthe objections raised by Bhonri Devi against granting of Probate in favourof Daulalji were not accepted by the Probate Court, and the alleged Willexecuted by Harinarayanji in favour of Bhonri Devi was also not provedby her in the said proceedings. Nonetheless, in view of her pre-existingright to maintenance from the estate of the HUF of her husband and inview of her exclusive settled possession of the suit property prior to andafter the commencement of the Act of 1956, the only conclusion whichcould be drawn, would be that Bhonri Devi had acquired the suit propertyin lieu of her pre-existing right to maintenance, and that she had held thesuit property as the full owner and not limited owner by virtue of Section14(1) of the said Act of 1956.

20. As stated earlier, Hindu woman’s right to maintenance is atangible right against the property which flows from the spiritualrelationship between the husband and the wife. Such right was recognizedand enjoined under the Shastric Hindu Law, long before the passing ofthe 1937 and the 1946 Acts. Where a Hindu widow is found to be inexclusive settled legal possession of the HUF property, that itself wouldcreate a presumption that such property was earmarked for realizationof her pre-existing right of maintenance, more particularly when thesurviving co-parcener did not earmark any alternative property forrecognizing her pre-existing right of maintenance. The word “possessedby” and “acquired” used in Section 14(1) are of the widest amplitudeand include the state of owning a property. It is by virtue of Section14(1) of the Act of 1956, that the Hindu widow’s limited interest getsautomatically enlarged into an absolute right, when such property ispossessed by her whether acquired before or after the commencementof 1956 Act in lieu of her right to maintenance.

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A21. In that view of the matter, we are of the opinion that the HighCourt had rightly held that Bhonri Devi had pre-existing right tomaintenance in the suit property that had ripened into full ownership byvirtue of Section 14(1) of the Act of 1956.

22. The present appeal being devoid of merits is dismissed.

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Nidhi Jain

Appeal dismissed.

(Assisted by : Shashwat Jain, LCRA)

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