Judgment:
Gokal Chand Mital, C.J.
(1) In order to appreciate the controversy, the following pedigree table may be kept in view:
Banwari Lal = Roop Devi | | | +---------------------------------------------+ | | | Murari Lal = Memo Devi Amar Nath Dewan Chand | +------------------+ | | | | Sultan Singh Shiv Raj Singh
Banwari Lal was the Karta of the joint Hindu family and the joint Hindu family had substantial joint Hindu property and business. On 27th March, 1942, Banwari Lal died, leaving behind, his widow, Smt. Roop Devi and three sons, namely, Murari Lal, Amar Nath and Dewan Chand. Murari Lal was the eldest son and, thereforee, he became the Karta. On 10th July, 1942, the coparcenaries was dissolved and on 26th June, 1943 added of settlement/partition was executed between the coparceners and their mother, Smt. Roop Devi, as on partition of joint Hindu family, besides some cash, she was given the ownership of a three strayed house on plot No.49, Block G, Lekhram Road, Darya Ganj, Delhi. In plot, the erstwhile, Hindu undivided family had held perpetual lease hold rights. The translation of the relevant recital is reproduced herein below:
'THE property which have fallen in the share of Smt. Roop Devi - Party No.4 that cannot be mortgaged, sold, gifted etc. and cannot be put-in the surety etc.. i.e. the same cannot be alienated in any way by the said Smt. Roop Devi. All the four parties shall reside in the abovementioned house. The present and the future electric, house-tax, water bills and other taxes regarding the said building shall be paid by the first, second and third parties in equal shares. Any party cannot give the house to any one for use nor any party can alienate the property in any way in his life time and no party shall disturb in the residence of Smt. Roop Devi. Must Roop Devi shall remain the owner of the lease hold rights and structure of the said building in her life time. The mutation will be effected on the Municipal Committee or improvement trust, where required. That the said properly shall be owned and possessed by the first, second and third party after the death of Smt. Roop Devi, and they shall get full rights. Smt. Roop Devi does not claim any share from the estate of L. Banwari Lal deceased, except the said house and the amount which has fallen in the share of Smt. Roop Devi - party No.4. But she also gives up all her claims by her own will from all her rights from the estate of L. Banwari Lal and she will not claim in future about those rights. The property situated at Connaught Circus, New Delhi known as Aggarwal Building, Plot No.3, Block M, shall be owned and possessed by parties No.1, 2 and 3 in equal shares, which is from the estate of Banwari Lal. Smt. Roop Devi has no concern with this property. That each of the party have taken the possession of his own moveable and immovable property and share. No party has any concern with the property of other party, (emphasis is ours).'
(2) On 17th June, 1956, Hindu Succession Act came into force and by virtue of Section 14 of the Act, whatever property she got under the settlement deed of 26th June, 1943, became the full ownership of Smt. Roop Devi and she ceased to have a restricted widow's estate. There is a string of authorities of the Supreme Court in this behalf that where a Hindu female is given immovable property in recognition of her pre-existing right, she becomes the full owner thereof by virtue of section 14 of the Act and the limited estate which she held immediately before coming into force of the Act, got converted into full ownership.
(3) On 18th October, 1961, Murari Lal died and on 4th November, 1971 the two sons of Murari Lal filed a suit for declaration against their grand-mother and uncles to the effect that they are owner of l/3rd undivided share in the immovable property of Darya Ganj along with the perpetual lease-hold rights in the plot and in the alternative prayed that they will have absolute ownership of l/3rd share in the said property on the death of smt. Roop Devi and yet prayed in the alternative that in respect of the portion occupied by them in the house of Smt. Roop Devi, they have become owners by adverse possession. The Delhi Development Authority was imp leaded as a defendant in the said suit.
(4) The aforesaid suit was dismissed with costs on 26th November, 1973 by Vyas Dev Misra, J., after recording a funding that by virtue of Hindu Succession Act, Smt. Roop Devi had become full owner and Murari Lal and his lineal descendants had no interest therein. Thereafter Smt. Roop Devi filed a suit in the year 1975 against the wife and sons and daughters of Murari Lal, minor son of Sultan Singh and M/s. Deys Medical Store Private Ltd. for possession and for recovery of mesne profit and injunction on the ground that in the partition of joint Hindu family properties, she was allotted the house and by virtue of section 14 of the Act, became full owner thereof. She also relied on the decision rendered by Vyas Dev Misra, J. in the suit filed by sons of Murari Lal, wherein she was declared to be the owner and revoked the permission, which she had granted to Murari Lal to stay in the house and their position of being licensees was terminated by filing a suit.
(5) During the pendency of the suit, Smt. Roop Devi died on 11th September, 1976 and her other two sons were imp leaded as plaintiffs on the basis of a will, set up by them in their favor by Smt. Roop Devi.
(6) The suit filed by Smt. Roop Devi was decreed by D.R. Khanna, J. vide judgment and decree dated 23rd March, 1982. On the will, the finding is against the lineal descendants of Murari Lal and in favor of other two branches to the effect that Smt. Roop Devi left the will in favor of Amar Nath and Dewan Chand. This matter was not disputed by counsel for the appellants before us.
(7) While R.F,A.(OS) 40 of 1982 is filed against the judgment and decree of D.R.Khanna,J, R.F.A.(OS) 20 of 1974 was filed against the dismissal of the other suit. Since common questions arise, both have been put up for decision together and rightly so and are being disposed of by this common judgment.
(8) Learned counsel for the appellants fairly admitted that in view of catena of judgments of the Supreme Court that in case a Hindu female had preexisting rights, under which she was granted immovable property by way of life estate, she would become full owner by virtue of section 14 of the Hindu Succession Act, 1956. The aforesaid facts and legal proposition are not in dispute between the parties. Counsel for the appellant has raised a basic question: 'Whether Amar Nath and Dewan Chand as heirs of Smt. Roop Devi can recover possession from Sultan Singh and Shiv Raj Singh, the two sons of Murari Lal?
(9) As already noticed, the legal proposition in regard to a Hindu female having a pre-existing right and on allotment of some immovable property in lieu thereof become her ownership by virtue of Section 14 of the Act, is not disputed before us. The only basis for raising the question before us by counsel for the appellants is that in the partition/settlement deed, the branch of Murari Lal, namely, the third son, was also allowed to reside and once they were allowed to reside, the portion they occupied would not belong to Smt. Roop Devi and provisions of section 14 would not apply to that portion. We find not the least merit in this argument.
(10) Assuming for the sake of arguments, that in a given case, a Hindu female is given immovable property in lieu of her pre-existing rights and in that property she were to allow her sons to occupy as tenants, would the sons claim that on coming into force of section 14 their mother could not become full owner. When this illustration was put to counsel for the appellants, he agreed that in that situation, the sons would not be able to say that their mother did not acquire full ownership rights under section 14 of the Act, but proceeded to contend that the case in hand is a better one on the facts and section 14 would not be attracted.
(11) On a reading of the quotation of the settlement/partition deed, it is clear that Smt. Roop Devi was declared to be the owner of the entire house in dispute. While giving her full ownership of the house in dispute, it was recited that she will not claim any share from the estate of Banwari Lal except the said house and the amount which had fallen to her share. Not only this, it was also recited that she gives up all her claims by her own will from all her rights from the estate of Banwari Lal and she will not claim in future about those rights. If we have a look at the properties, which Banwari Lal, the common ancestor, held as Karta, shows that large number of properties, business, shares etc. were owned by the Hindu undivided family, including Aggarwal Building, situated in Connaught Circus. At that time, the three sons of Smt. Roop Devi allotted the house to her, valuing it equal to their 1/4th share each, whereas the property which they took for themselves was of much higher value and the little property, i.e. the house, which went to her share, is also sought to be disputed merely because Smt. Roop Devi was not probably being properly treated by Murari Lal and she disinherited him and willed away the property to other two sons. To settle the score with the other two sons, firstly the execution and genuineness of the will was disputed and then the right of Smt. Roop Devi to become full owner under section 14 of the Act is disputed.
(12) On a consideration of the settlement/partition deed, there is no escape from the conclusion that in recognisation of the pre-existing right of Smt. Roop Devi, she was allotted the house in dispute as owner with limited estate in the year 1943, which matured into full ownership under section 14 of the Act and the sons who remained in possession of her house right from the deed of settlement till the filing of the suit were merely by her sufferance and right to continue on sufferance stood terminated by filing of a- suit for possession by her and the learned Single Judge was justified in decreeing the suit for possession and in dismissing the suit for declaration filed by the sons of Murari Lal. It may be noted here that no argument was raised before us that Murari Lal or his descendants have become owner of the property in dispute by way of adverse possession.
(13) This brings us to the consideration of the cross-objections bearing No. 701 of 1982 filed by the legatees of Smt. Roop Devi in R.FA.(OS) No. 40 of 1982. Smt. Roop Devi had claimed damages for use and occupation in the year 1975 at the rate of Rs. 750.00 per month. However, the learned Single Judge allowed Rs.300.00 per month and in doing so, kept in view the relationship and that the family of Murari Lal fell in disfavor with Smt. Roop Devi. There is not much of discussion in this behalf by the learned Single Judge.
(14) Counsel for the cross-objectors has invited our attention to the statement of Public Witness I, Sh. Onkar Nath and has urged that a decree for mesne profit at the rate of Rs. 750.00 per month should have been granted.
(15) We have gone through the statement of Sh.0nkar Nath. He proved plan Ex.P2 which shows that the defendants are in possession of the portion red in colour in that plan. A look at the plan shows that except two rooms, the entire ground floor, consisting of five rooms, one room on the first floor and one room on the second floor are in possession of the defendants. It was also the statement of this witness that two garages, which are part of the house, were let out at Rs.80.00 per month. On this basis, it was sought to be urged that the accommodation in the main house, with the defendants, would not fetch less than Rs.750.00 per month. There has been no challenge to the aforesaid statement of the witness in cross-examination. We find the argument unexceptional and has merit. Considering that the dispute is between relations, we consider just and proper to fix the mesne profit at the rate of Rs.500.00 , month. The decree granted by the learned Single Judge in this behalf is modified from Rs300.00 to Rs.500.00 per month.
(16) In the result, while both the appeals are dismissed, the cross-objections are partly allowed, as indicated above, leaving the parties to bear their own costs.
(17) An oral prayer is made by counsel for the appellants for a certificate for appeal to the Supreme Court. Since the matter is already decided by the Supreme Court with regard to interpretation of Section 14 of the Hindu Successions Act and the cases in which it should be applicable, we decline the prayer us it would be wasteful to burden the Supreme Court with another appeal.