M.R. Calla, J.
1. This is the plaintiffs' First Appeal against the judgment and decree dated 29-2-1980 passed by the Civil Judge (S.D.), Ahmedabad (Rural), at Narol in Special Civil Suit No. 9 of 1978 whereby the plaintiffs' suit was dismissed with costs.
2. The plaintiffs, four in number, i.e. four daughters of Jayvant Kunwar (mother) and Jayvant Sinhji (father) filed Special Civil Suit on 2nd February, 1978 in the Court of Civil Judge (S.D.), Ahmedabad (Rural), at Narol. They came with the case that their mother Jayvant Kunwar who was known as Rani Sahiba had become the full and absolute owner of the agricultural lands bearing Survey Nos. 252/3, 254 Part, 262. 501, 678 Part. 320 Part and 571 Part situated within the sim of village Utelia in Taluka Dholka and after the death of their mother Rani Sahiba, the agricultural lands as above devolved upon them and they as her heirs became the full and natural owners of the aforesaid lands. Besides declaration that they had become the full and absolute owners as aforesaid, they claimed a further declaration in the suit that the name of defendant No. 3 namely - Shri Mukundlal Sheth, Advocate of Dholka had been wrongly entered into the revenue records in respect of the lands as aforesaid and that the entry to this effect in the revenue records was invalid, illegal and inoperative. A permanent injunction was also sought against the defendant Nos. 1 and 2, i.e., the State of Gujarat and the Mamlatdar and Agricultural Lands Tribunal, Dholka restraining them from resorting to any activities of invasion over their rights of the suit lands and from interfering with the possession of the suit lands in any manner.
3. Late Jaysinhji Sursinhji was the father of the plaintiffs and the husband of Rani Sahiba. He was the Talukadar of village Utelia. The rule of primogeniture was prevalent amongst the Tahtkadars and there was a family custom to grant 'Jivai' lands to the wife of the Talukadar or 'Gadipati' and to other female members of the family who were otherwise not entitled to inherit the properties of Talukadars. The lands which were granted for maintenance of the wife or other female members of the family were known as 'Jivai' lands meant for the maintenance of the ladies and such properties were kept apart exclusively for their maintenance. Initially, the lands which were given to Rani Sahiba for her maintenance as 'Jivai' lands by her husband Jaysinhji Talukadar did create a limited interest in favour of Rani Sahiba as per the then Hindu custom in vogue, but after coming into force of the Hindu Succession Act, 1956, by operation of Section 14 thereof, the plaintiffs' mother Rani Sahiba who had a limited interest in the 'Jivai' lands became the full owner and her death, the plaintiffs being the daughters inherited the suit lands and became the owners of the lands as aforesaid. It is the case of the plaintiffs that after the suit lands were kept apart as 'Jivai' lands in favour of their mother, she was put in exclusive possession of these lands and these lands stood in her name in the 'Jivai Khata' and according to them, thereafter the suit lands were held by her as the wife of the Talukadar, but as the owner thereof and the Talukadar Jaysinhji acted only as a Trustee to manage the affairs of the plaintiffs' mother's land. He used to collect the income and hand over the same to the plaintiffs' mother. While the plaintiffs' father Jaysinhji was alive, the Gujarat Agricultural Lands Ceiling Act, 1960 came into force and the proceedings under the Ceiling Act were initiated by the State against the lands of their father Jaysinhji. In these proceedings under the Gujarat Agricultural Lands Ceiling Act, 1960, the lands as aforesaid were also erroneously considered to be the lands of Talukadar Jaysinhji by the Mamlatdar and A.L.T., for the purpose of finding out the surplus lands. Against such a decision of the concerned Mamlatdar and A.L.T., an appeal was preferred but the same was dismissed. A revision application was also preferred before the Gujarat Revenue Tribunal but the same was also rejected. Therefore, Special Civil Application No. 2121 of 1979 was preferred before the High Court and that too was rejected on 8-11-1976 by the single Bench. In fact, the Agricultural Lands Tribunal had passed an order on 13th June, 1968 but before that on 19th May, 1968, the Talukadar Jaysinhji died. The case of the plaintiffs is that in view of the fact that Shri Jaysinhji had died on 19th May, 1968 even before the passing of the order dated 13th June, 1968 by the A.L.T., the decision of the A.L.T., after the death of the Talukadar was illegal; the suit lands, were kept as 'Jivai' lands and therefore, the A.L.T., the Collector and the Gujarat Revenue Tribunal were also in error in holding the suit lands to be surplus lands under the Act. The plaintiffs' case is that in fact the Act was not applicable to the suit lands as the same were 'Jivai' lands and whereas the suit lands were not really the lands of Talukadar, i.e. the plaintiffs' father, the plaintiffs' mother became the owner of these lands. The grievance was also raised that neither plaintiffs nor their mother were made parties in the proceedings under the Gujarat Agricultural Lands Ceiling Act and so the declaration by the Government that the suit lands were surplus lands under the Ceiling Act was not binding upon them and hence the order passed under the Ceiling Act was bad in the eye of law and the entire proceedings under the Ceiling Act after the demise of the plaintiffs' father were null and void, yet the Government tried to implement the order and took away the suit lands under an illegal order and thereby their rights, titles and interests were injured by the implementation of the order. Their rights, titles and interests were also not considered by the A.L.T., the Collector and the Gujarat Revenue Tribunal and also by the High Court, and therefore, they filed the present suit for the reliefs as aforesaid on 2nd April, 1978 alleging that the defendant No. 3 had got these lands mutated in the revenue records illegally, he was also joined as a party to the suit.
4. The defendant Nos. 1 and 2 filed their written statement vide Exh. 18 contending that the whole suit was misconceived and false; that the Court had no jurisdiction to hear and decide the suit; the suit was also barred by the principle of res judicata as it had already been decided by the A.L.T. under the Act and the decision of the A.L.T.. had been confirmed in appeal and revision by the Collector and Gujarat Revenue Tribunal respectively, and lastly by this Court. According to the defendants, the case set up in the plaint was not true and the suit lands were really belonging to late Jaysinhji and not to his wife Rani Sahiba. It was also pleaded by the defendant Nos. 1 and 2 that in fact there was no custom of 'Jivai'; the mother of the plaintiffs was never the owner of the suit lands. That soon after the decision of the A.L.T., under the ceiling proceedings, the suit lands came to be vested in Government and neither the mother of the plaintiffs nor the plaintiffs acquired any right, title or interest in the suit lands. Whatever rights, titles and interests late Jaysinhji had stood extinguished immediately after the order of the Ceiling proceedings. It was also the case of the defendant No. 1 that the case about the custom of 'Jivai' was an afterthought and was advanced only with a view to defeat the purpose of the operation of the order passed under the Ceiling Act, the suit was therefore sought to be dismissed.
5. On the basis of the pleadings of the parties, the issues as under were framed and the findings against each of the issues were recorded against each of the issues as under :
1. Whether this Court has jurisdiction to hear and decide this suit? --- Yes
2. Whether plaintiffs prove that there was a custom of Jivai, and as per that custom suit lands were allotted to late Jayavant Kunwarba their mother as Jivai maintenance by their father Jayavantsighji? - No
3. Whether plaintiffs prove that their father held suit lands not as owner, but as trustee of their mother? -- No
4. Whether plaintiffs prove that their mother became full owner under Hindu Succession Act, 1956? -- No
5. Whether plaintiffs prove that order of competent authority under ceiling act is null void and illegal or not? -- Not empowered to decide.
6. Whether plaintiffs prove that the said decision was not binding to their mother and now the same is not binding to them? -- No
7. Whether plaintiffs prove that they have now become the owner of the suit lands as the heirs of their mother? -- No
8. Whether plaintiffs prove that mutation of name of defendant No. 3, in Govt. Records is invalid? -- No
9. Whether the suit is hit by the principle of res-judicata? -- No
10. Whether Court fees paid are sufficient? -- Yes
11. Whether plaintiffs are entitled to the reliefs sought for? -- No
12. What order and decree? -- As per order below.
6. On behalf of the plaintiffs, plaintiff No. 3 has deposed at Exh. 39 and thereafter Devchand Harjivandas; their father's Hujoor Daftari at Exh. 43. The defendant Nos. 1 and 2 did not lead any oral evidence, but rest contended by producing documents at Exhs. 75, 76 and 77. The defendant No. 3 did not appear to adduce any evidence and hence no evidence was available. This Court finds that the issue No. 1 as to whether the Court had the jurisdiction to hear and decide the suit has been correctly arrived at and no interference is required with the finding on issue No. 1.
7. Issue Nos. 2, 3, 4, 6 and 7 are interconnected and the basic question to be considered is as to whether the plaintiffs' mother had become the full and absolute owner of the lands in question under the Hindu Succession Act, and therefore, after her death these lands could be claimed by the plaintiffs and they became the owners of the suit lands as the heirs of their mother.
8. Before I proceed to consider the findings on these issues, it will be appropriate if we consider the findings on Issue Nos. 5, 8 and 9. Whereas the order passed by the competent authority under the Ceiling Act has been a subject-matter of challenge by way of appeal, revision and ultimately the Special Civil Application before this Court and such order has been upheld throughout, it is not possible for this Court to consider the challenge to such order passed by the competent authority in these proceedings before the Civil Court collaterally. However, it is made clear that the impact of the decision in this case will have to be examined by the competent authority under the Gujarat Agricultural Lands Ceiling Act afresh if at all the present appellants succeed before this Court and in case it is held that they became the owners of the lands in question and that the lands in question became vested in their mother's possession during her life time as full and absolute owner in view of the provisions of Section 14 of the Hindu Succession Act, 1956. So far as issue No. 8 is concerned, the trial Court has held that no evidence was led against the defendant No. 3, and therefore, the mutation of the fields bearing Survey Nos. 254, 320, 362 and 510 in the name of the defendant No. 3 has been found to be proper and valid. It goes without saying that the mutation of entries of these lands in the name of defendant No. 3 were made on the basis that he was the owner and in possession of these fields, nevertheless, the fact remains that he was already an Advocate of the plaintiffs' father (Talukadar) during his life time and he also worked as his Karbhari upto 1952, and thereafter, as permanent Advocate of the plaintiffs' father. It is therefore, clear that even if these lands had been got mutated in the name of the Advocate, i.e. defendant No. 3, the entries were based on the foundational fact that these lands were the properties of the Talukadar. In this view of the matter, if at all it is found in these proceedings that the lands in question no more remained to be a part of the property of the Talukadar as the same had been given to the plaintiffs' mother as 'Jivai' lands and on that basis if at all it is found that she became the full and absolute owner of these lands on the strength of the provisions of Section 14 of the Hindu Succession Act, the effect of such finding if at all so arrived at in favour of the plaintiffs, shall also have to be considered, and therefore, notwithstanding the finding on this issue as recorded by the trial Court, the impact of such findings on issue Nos. 2, 3, 4, 6 and 7 will have to be taken into consideration.
9. Regarding issue No. 9, the Court has rightly held that the suit was not hit by the principle of res judicata inasmuch as the present plaintiffs were no parties in the earlier proceedings and that they were not claiming as heirs of their father, but their claim is based on the full and absolute ownership of the properties in question of their mother Jayvant Kunwarba. There is no lis in the two proceedings under the same title and therefore, there was no question of invoking the principle of res judicata.
10. Regarding issue No. 10, the trial Court has rightly found that the Court fee paid by the plaintiffs was sufficient and I do not find any reason to disagree with this finding.
11. So far as issue Nos. 2, 3, 4, 6 and 7 are concerned, the first and the foremost question is as to whether 'Jivai' lands which were set apart for the maintenance of the plaintiffs' mother became vested in her and she became the full and absolute owner of these lands or not. The witness Devjibhai Harjivandas examined by the plaintiffs at Exh. 43, has produced the account books being Hujoor Daftari. He has proved these account books and the fact that 'Jivai Khata' was separately maintained. The entries in the account books were produced from Exhs. 44 to 74. From the evidence of this witness examined at Exh. 43 and the entries of account books at Exhs. 44 to 74, in the opinion of this Court, it is clear that there was the custom of 'Jivai' and 'Jivai Khata' was separately maintained and the lands in question had been set apart for the plaintiffs' mother and the lands were in possession of their mother during her life time. The plaintiff No. 3 had also stated that there was a custom of 'Jivai' and for the maintenance of the female members of the family, certain properties were kept aside by the Karta of the family. The statement of the plaintiff No. 3 was not controverted by the defendants and I fail to understand how her statement about the custom of 'Jivai' could be termed as sweeping and fishy by the trial Court and how the same could be said to be lacking to fulfil the requirements for establishing the custom of 'Jivai'. In the opinion of this Court, even if the plea to this effect taken before the revenue authorities had been negatived, the fact remains that the present plaintiffs were not parties in those proceedings, and therefore, any finding in the earlier proceedings recorded in this regard cannot have a binding effect upon them. I find that there is oral as well as documentary evidence from contemporaneous revenue records as pointed out above (Exh. 43) to establish the custom of setting apart 'Jivai' lands for female members by the then Talukadars and in fact the lands as aforesaid had been set apart as 'Jivai' lands in the name of Rani Sahiba, these lands came to be vested in her and under her possession during her life time and now the only question which requires consideration is as to whether she became the full and absolute owner of these properties with the coming into force of the Hindu Succession Act, 1956 and Section 14 thereof or not?
12. This question has to be considered and answered by this Court and for that purpose, 1 proceed to discuss the position of law as decided and laid down in the decisions which have been cited before me and relied upon by the learned Counsel for the appellants - with reference to Section 14(1) and (2) of the Hindu Succession Act, 1956 which is reproduced as under :-
'14. Property of a female Hindu to be her absolute property :-(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 device, 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 oilier manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in Sub-section (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.' Dated 9-2-2001 :
A. In the case of Bai Vajia v. Thakorbhai Chelabhai, reported in 1979 GLR 641 (SC) while considering the meaning of 'limited ownership' in the context of Section 14(1) & (2) of the Hindu Succession Act, 1956 and applicability of Sub-section (1) of Section 14 the Supreme Court found that a plain reading of Sub-section (1) of Section 14 of the Hindu Succession Act makes it clear that concerned Hindu female must have limited ownership in property, which limited ownership would get enlarged by the operation of that sub-section. Limited ownership in the concerned Hindu female is thus a sine qua non for the applicability of Sub-section (1) of Section 14. The widow is competent to protect the property from all kinds of trespass and to sue and be sued for all purposes in relation thereto so long as she is alive. Ownership in the fullest sense is a sum total of all the rights which may possibly flow from title to property, while limited ownership in its very nature must be a bundle of rights constituting in their totality not full ownership but something less. When a widow holds the property for her enjoyment as long as she lives, nobody is entitled to deprive her of its or to deal with the property in any manner to her detriment. The property is for the time being beneficially vested in her and she has occupation, control and usufruct of it to the exclusion of all others. Such a relationship to property falls squarely within the meaning of the expression 'limited owner' as used in Sub-section (1) of Section 14 of the Act. The Supreme Court in this case considered the earlier decision in V. Tulasamma v. V. Sesha Reddi, reported in AIR 1977 SC 1944 and opined that Tulasamma's case had been correctly decided. The main controversy was as to whether Bai Vajia was only given the right to possess the property for her life - the ownership remaining all along with the other three persons who are contesting and the Court held that so long as she lived, Bai Vajia was to have full enjoyment of and complete control over the land, barring any right to alienate it and after the land was made over to her she became its owner for life although with a limited right, and therefore, only a limited owner and as soon as Bai Vajia took possession of the land, no rights of any kind whatsoever in relation thereto remained with those three persons and thus they ceased to be the owners for the span of Bai Vajia's life. Following Tulasamma's case, it was held that Bai Vajia became full owner of the land in dispute under the provisions of Sub-section (1) of Section 14 of the Act and that Sub-section (2) thereof had no application to her case, the land having been given to her as a limited owner and in recognition of her pre-existing right against property.
B. In the case of C. Masilamani Mudaliar v. Idol of Swaminathaswami Thirukoil, reported in 1996 (8) SCC 525, it was held that the test to determine is whether Hindu female acquired or possessed the property in recognition of her pre-existing right or she got the right for the first time under an instrument without any pre-existing right. In case of the former Sub-section (1) will apply and in case of the latter Sub-section (2) will apply. If the acquisition or possession was in recognition of pre-existing right of the female such as right to maintenance under Sastric law, Sub-section (1) will operate irrespective of whether the testator died before or after commencement of the Act and thereby her limited estate will blossom into full ownership and Section 14(2) will not apply. Even doctrine of proportionality of maintenance is not applicable. The Supreme Court held that Section 14 should be construed harmoniously consistent with the constitutional goal of removing gender-based discrimination and effectuating economic empowerment of Hindu females. Women have a right to elimination of gender-based discrimination particularly in respect of property so as to attain economic empowerment and this forms part of universal human rights. They have right to equality of status and opportunity which also forms part of the basic structure of the Constitution and the Supreme Court is obliged to effectuate these rights of women and further that the Personal laws inconsistent with the constitutional mandates are void under Article 13.
C. In the case of Beni Bai v. Raghubir Prasad, reported in 1999 (3) SCC 234, it was held that Sub-section (1) applies to the cases where the conferment of right on a Hindu widow was in lieu of maintenance or in recognition of her pre-existing right as provided under the Shastric law and the Hindu Women's Rights to Property Act. Sub-section (2) of Section 14 of the Act would apply only to such cases where such a grant conferred a fresh right or title for the first time and while conferring the said right, certain restrictions were placed by the grant or transfer.
In the case of Vijay Pal Singh v. Deputy Director of Consolidation, reported in AIR 1996 SC 146, it was categorically held while considering the scope of Section 14 of the Hindu Succession Act in para 5 that,
'It is settled law that the widow is entitled only to limited estate for maintenance. By operation of Sub-section (1) of Section 14 of the Hindu Succession Act, her limited estate enlarged into absolute right as she was in possession when the Act came into force. Thereby, she becomes the absolute owner of the property. When she died intestate, her daughter Champi became absolute owner as Class-I heir, since she was in possession and enjoyment of the land in her own right.' E. In the case of Mohindero v. Kartar Singh, reported in AIR 1991 SC 257, the Supreme Court while considering the scope of the Act in para 5 held that the Act came into force on June 17, 1956, and thereafter, Santi died on October 6, 1956. If the gift in favour of Mohindero was invalid as has been held by the High Court then Santi continued to be limited owner upto June 17, 1956 when the Act came into force, and thereafter, by virtue of the provisions of the said Act, she became full owner of the property. In para 9 it has been held that Santi held that property as limited owner till the coining into force of the Act and she became full owner thereafter and that when she died on October 6, 1956 succession to her property was to be governed be the Act and Santi having died intestate, succession to her property was to be governed by Section 15 read with Section 16 of the Act and Mohindero being daughter of a predeceased son of Santi she had the first preference to succeed under Section 15(1)(a) of the Act. F. In the case of Panch Kari Lalia v. Annapurna Laha, reported in AIR 1990 NOC 89 (Cal.), while considering the effect of Section 14 of the Hindu Succession Act, the Calcutta High Court found that a Hindu widow having limited interest in properties left by her husband and by her mother, dying after coming into force of the Act, limited interest of widow ripened into full ownership and on her death her interest would devolve on her sons and daughter equally. The principle which has been laid down is that where a Hindu widow having limited interest in the property left by her husband and by her mother died after coming into force of the Act and was in possession of those properties at time when Act came into force, the limited interest of the widow to the properties had ripened into full ownership after coming into force the Act.
13. From the analysis of the various decisions on which reliance has been placed by the learned Counsel for the appellants, the legal position is clearly discernible that even if the right to maintenance is given for life time to a Hindu lady, it creates an ownership in her and such ownership culminates into full and absolute ownership after coming into force of the Hindu Succession Act and such property of which she became the full and absolute owner devolves upon her legal heirs on her death. If this principle is applied to consider the grievance of the appellants herein, it becomes clear that the Jivai land, which was set apart for the maintenance of Jayavant Kunwarba had become vested in her and she became full and absolute owner of these lands after coming into force of the Hindu Succession Act. It has come on record in the evidence of witness No. 1, namely, Nirmaladevi, daughter of Jayavant Kunwarba that Rani Sahiba had died in 1970, it has also come on record that husband of Rani Sahiba had already passed away on 19-5-1968 and the Hindu Succession Act had come into force in the year 1956. Thus Rani Sahiba became the full and absolute owner of the properties, which were given to her as 'Jivai' lands and on her death according to law, as discussed above, these properties must devolve upon her legal heirs including the present plaintiffs i.e., her daughters and in no way their rights can be defeated at the altar of the orders passed in the earlier proceedings to which they were never the parties. There is no evidence to show that the present suit was filed at the instance of the brothers of the plaintiffs, and therefore, there is no basis for the uncalled for observation made in this regard in Para 30 of the Judgment by the trial Court. The plaintiffs are accordingly entitled to the declaration sought in their favour with regard to the suit properties in accordance with Hindu Succession Act, 1956 and accordingly such declaration is granted in their favour. It will be open for the appellants to approach the concerned Competent Authority under the Gujarat Agricultural Lands Ceiling Act with the request to consider the impact of this order on the orders passed in the earlier proceedings as has been observed in para 8 of this order.
14. The order and decree passed by the trial Court is set aside and the Appeal is, therefore, allowed and the suit is decreed. The decree be drawn accordingly. No order as to costs.
15. Appeal allowed.