Judgment:
(Prayer: This RSA is filed under Section 100 of CPC praying to set aside the judgment and decree dated 7.4.2005 passed in RA No.5/2003 by the Civil Judge (Sr.Dn.) and CJM, Chamarajanagara, allowing the appeal and setting aside the judgment and decree dated 30.11.2002 passed in O.S.No.119/1997 by the Addl. Civil Judge (Jr.Dn.) and JMFC, Chamarajanagar.)
1. This second appeal is by defendants 2 to 4 challenging the judgment and decree passed by the Civil Judge, (Sr.Dn.), and CJM, Chamarajanagar, in R.A.No.5/2003.
2. Brief facts of the case are, plaintiffs 1 to 4 had filed a suit before the Addl. Civil Judge, (Jr.Dn.) and JMFC, Chamarajanagar in O.S.No.119/1997 seeking for declaration and permanent injunction against defendant No.1 and other defendants. According to plaint averments, plaintiff No.1 and defendant No.1 are the wives of late Basappa. According to the plaintiffs, 1st defendant had no issues through her husband. Plaintiff Nos.2 to 4 are the children of the 1st plaintiff and late Basappa. Late Basappa had executed a deed of maintenance in favour of 1st defendant on 10.9.1968. Plaintiff Nos.1 to 4 are the owners in possession in respect of the remaining portion of Sy.No.47 of Mudnakoodu village and also the absolute owners in respect of remaining portion of the house by virtue of the deed of maintenance executed by late Basappa. It is stated that, the 1st defendant has already alienated some portion of the land measuring 1 acre 27 guntas in favour of defendant Nos.2 to 4 which according to the plaintiffs, is an illegal transaction and the 1st defendant has no right. Further, it is stated that the 1st defendant is also trying to alienate the remaining portion of the land. Accordingly, stating that the sale deed dated 28.10.1996 executed by the 1st defendant in favour of defendants 2 to 4 is illegal and void, they sought for declaration and permanent injunction. The suit was contested by the defendants wherein it is stated that late Basappa was living with plaintiffs and defendants and since trouble arose, the 1st defendant was given a property, as such, she has got every right over the same. Basappa died leaving the properties. 1st defendant pleads her ignorance as to the alleged maintenance deed and contends that behind her back by playing fraud the plaintiffs have declared themselves as absolute owners, as such, they are not entitled to get the properties.
3. Based on the pleadings as many as five issues were raised. After enquiry, the trial court dismissed the suit of the plaintiffs holding that there is a right given to the wife by way of maintenance as per Section 14(1) of the Hindu Succession Act and 1st defendant is the absolute owner of the property mentioned in Ex.P1. As such, the question of seeking declaration and injunction by the plaintiffs against the defendants is not maintainable. As against the said judgment, in the appeal filed by the plaintiffs before the Civil Judge (Sr.Dn.), Chamarajanagar in RA.No.5/2003, referring to Section 14(2) of the Hindu Succession Act, 1956, (for short ‘the Act’) the lower Appellate Court has opined that, Section 14(2) of the Act would be applicable to the case on hand and not Section 14(1) of the Act and accordingly, has reversed the finding of the Trial Court and allowed the suit filed by the plaintiffs. Hence this second appeal by the defendants.
4. At the time of admission on 31.3.2006 the following substantial question of law was raised for consideration:
Whether the first appellate Court was justified in reversing the finding of the trial Court on the ground that Mahadevamma had only a life estate and she had no right to alienate the property though limited right has transformed to an absolute right in view of Section 14(1) of Hindu Succession Act of 1956?
5. Heard.
6. Learned counsel appearing for the appellants has submitted that the suit filed by the plaintiffs is not maintainable. Plaintiff No.1 is not the legally wedded wife of late Basappa nor she has got a right along with other plaintiffs to challenge the property which was given to the 1st defendant towards her maintenance. It is submitted that the marriage of the 1st plaintiff with late Basappa is after the commencement of Hindu Succession Act of 1956, as such, it is a void marriage and children born to her are not at all entitled for a share in the joint family property and even if they are entitled for any right, on proof that they are born to late Basappa and if their parenthood is proved, they would only be entitled to the share in the self acquired property of late Basappa. When the 1st defendant has specifically denied the relation of plaintiffs with late Basappa, it was for the plaintiffs to establish their relation with late Basappa. As long as the marriage of the 1st defendant with late Basappa is not dissolved, she is having a right in all the properties available to late Basappa which cannot enure to the benefit of plaintiffs. It is further submitted that the property in question has been given in lieu of maintenance to the 1st defendant, which enures to the benefit of the 1st defendant as her absolute property and the conditions, if any laid in the compromise deed becomes void. The alienation made, if any by the 1st defendant in favour of defendants 2 to 4 is on the right available to her as it becomes her absolute property on such parting of the property in her favour by late Basappa. In support of his argument, learned counsel for the appellants has relied upon the decision in the case of Vaddeboyina Tulasamma and others Vs. Vaddeboyina Sesha Reddi by LRs., reported in AIR 1977 SC 1944 wherein it is held thus:
Sub-section (1) of Section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property. Sub-section (2) is more in the nature of a proviso or exception to sub-section (1). It excepts certain kinds of acquisition of property by a Hindu female from the operation of sub-section (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of woman in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in sub-section (1). It cannot be interpreted in a manner which would rob sub-section (1). It cannot be interpreted in a manner which would rob sub-section (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub-section (1).
Sub-section (2) must, therefore, be read in the context of sub-section (1) so as to leave as large a scope for operation as possible to sub-section (1) and so read, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of sub-section (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property.
The appellant claimed maintenance out of the joint family properties in the hands of the respondent who was her deceased husband’s brother. The claim was decreed in favour of the appellant and in execution of the decree for maintenance, a compromise was arrived at between the parties allotting the properties in question to the appellant for her maintenance and giving her limited interest in such properties.
7. The argument of the learned counsel for the respondents is, the lower appellate Court has rightly applied Section 14(2) of the Hindu Succession Act as there was no pre-existing right available to the 1st defendant-Mahadevamma and she has only a limited estate on the right created in lieu of her maintenance in the compromise deed which shall devolve on the plaintiffs on her death and the other defendants have no right. The sale deed executed, if any in favour of defendants 2 to 4 by defendant No.1 is void and illegal. Accordingly, he has relied upon the decision of the Apex Court reported in (2010) 9 SCC 602 in the case of Gaddam Ramakrishnareddy and others Vs. Gaddam Ramireddy and another to contend that, Section 14(2) of the Hindu Succession Act of 1956 applies and wife’s right did not blossom into an absolute estate as contemplated under Section 14(1) of the Hindu Succession Act. He has also relied upon another judgment of this Court reported in ILR 2004 KAR 2153 in the case of Chamu Jinnappa Sheri and others Vs. Savitri Yeshwantrao Chagule and others.
8. Sections 14(1) and 14(2) of the Hindu Succession Act of 1956 reads thus:
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.
(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.
9. In the case on hand Mahadevamma, the 1st defendant is the first wife of late Basappa. Plaintiff No.1 is said to be the second wife and her marriage is only after 1956. As per the facts, the marriage of Magadevamma has taken place in the year 1962 and during June 1965 the 1st plaintiff had married Basappa. For all practical purposes, since the marriage of the 1st defendant with late Basappa was not dissolved, the marriage of the 1st plaintiff is to be treated as either void marriage or she would be treated as illegitimate wife and the children born to the 1st plaintiff through late Basappa i.e., plaintiffs 2 to 4 are to be treated as illegitimate children. It transpires that, in the year 1968 the 1st defendant filed a suit in O.S.No.369/1968 against her husband late Basappa which ended in a compromise. The suit property measuring 1 acre 27 guntas of land in Sy.No.47 of Mudnakoodu village and a portion of the house is given to the 1st defendant in lieu of her maintenance with a restricted right. As such, according to the plaintiffs, the sale deed executed by Mahadevamma, the 1st defendant in favour of defendants 2 to 4 is void and not binding on the plaintiffs and the 1st defendant is only entitled to maintenance out of the income of the said land during her lifetime. Of course, the 1st defendant has denied any of the conditions and also pleads her ignorance as to the conditions stipulated in the deed of maintenance pursuant to the compromise entered into in the suit filed by her and rather according to her, plaintiffs have no right, title or interest to claim the suit properties.
10. Learned counsel for the appellants has produced the certified copy of the suit filed by Mahadevamma, the 1st defendant, as against the plaintiffs herein in O.S.No.248/1998 which of course, on the death of Mahadevamma during 13.6.2003, has abated. In the said suit, the properties mentioned as per the schedule are, Sy.No.64/1 measuring about 3 acres 6 guntas, Sy.No.70/C measuring about 13 guntas, Sy.No.47/3A measuring 11 guntas, Sy.No.47/2A measuring 21 guntas, Sy.No.47/1A measuring 25 guntas and Sy.No.47/2B measuring 39 guntas and a country tiled house bearing No.357 and property No.336 measuring 5 ankanas house situate in Mudnakoodu village. It appears, 1 acre and 27 guntas of land was given to defendant No.1 in lieu of her maintenance by late Basappa along with a portion of the house property. According to the plaintiffs, defendants No.1 is entitled only for a limited estate over the property given to her in lieu of her maintenance and thereafter, it reverts to the plaintiffs as per the compromise deed. However, defendant No.1 being an illiterate lady, pleads her ignorance about the conditions and stipulations in the compromise deed. It transpires that after 1968, the 1st defendant had been enjoying the property which was given to her share and during February 1996, Basappa, the husband of the 1st defendant died and she has alienated the property given in lieu of her maintenance on 28.10.1996 after his death in favour of defendants 2 to 4. As such, plaintiff No.1 who is the illegitimate wife of Basappa along with children born to her out of illegitimate marriage, has filed O.S.No.119/1997. However, during the pendency of the appeal before the Civil Judge (Sr.Dn.), the 1st defendant Mahadevamma died. Now the litigation in the second appeal is fought by defendants 2 to 4, who are the purchasers of the property. The trial Court, by applying the principles of Section 14(1) of the Hindu Succession Act, has non-suited the plaintiffs, as against which, in the appeal preferred in R.A.No.5/2003 before the Civil Judge (Sr.Dn.) applying the principles of 14(2), the lower appellate Court has reversed the finding of the trial Court and decreed the suit of the plaintiffs. Hence, this second appeal.
11. The questions of law to be considered in this appeal are, whether the lower appellate Court is justified in applying the principles as prescribed under Section 14(2) of the Hindu Succession Act when the trial Court has opined that Section 14(1) of the Hindu Succession Act applies to the case on hand; whether the lower appellate Court is justified in decreeing the suit of the plaintiffs and reversing the finding of the trial Court and also whether the lower appellate Court has committed any error in interpreting the judgment of the Apex Court reported in AIR 1977 SC 1944 in the case of V Tholasamma Vs. V Sheshareddy and also the judgment reported in AIR 1998 SC 2401 in the case of Raghuveer Singh Vs Gulab Singh.
12. Under the Hindu Adoptions and Maintenance Act of 1956 which came into force on 21.12.1956, it is a legitimate right given to the wife for maintenance by her husband during her lifetime. As it transpires, the 1st defendant Mahadevamma has married late Basappa in the year 1962 and in the year 1965 the 1st plaintiff has married Basappa as a second wife/illegitimate wife. Under the Right to Maintenance Act, on filing of the maintenance petition, the 1st defendant having entered into compromise in the suit filed by her against her husband in O.S.No.369/1968, was given a property in Sy.No.47 of Mudnakoodu village to the extent of 1 acre 27 guntas, which is mentioned in the deed of maintenance. According to the plaintiffs, only limited estate is given to the 1st defendant. It transpires that, Basappa died during February 1996 and on his death, the status of the 1st defendant continued as that of wife of late Basappa and she succeeded to the estate of Basappa as a legal heir and she being a class-I heir of late Basappa, is entitled to claim share in the property. The position of law as per Sections 14(1) and (2) of Hindu Succession Act, in this context, is of course reduced to a formality, as on the death of Basappa apart from the property which was given to her as maintenance, she is also entitled for a legitimate share in the property available to Basappa as indicated above. A separate suit has been filed by the 1st defendant in O.S.No.248/1998, which is indicative of the fact that, apart from one of the properties which was given to her as maintenance, there are several other properties which runs to a larger extent. Whatever may be the interpretation under Tholasamma’s case or subsequently thereon as to the right of maintenance acquired by women whether as a pre-existing right or a right under the decree after the commencement of the Act, when once she became the legitimate heir of late Basappa on his death during February 1996, and if she has alienated the property which was given to her specifically under the compromise deed, though it is mentioned as a limited right, in favour of defendants 2 to 4 on 28.10.1996 but since she has inherited the property of Basappa not only through the compromise deed towards her maintenance, but also as a class I heir in respect of other properties and when admittedly plaintiff No.1 is a illegitimate wife and children born to her namely, plaintiffs 2 to 4 are illegitimate children, they are entitled to a share in the self acquired property of Basappa or for any other share. When defendant No.1 has succeeded to the estate of Basappa on his death and if she has alienated one of the properties in favour of defendants 2 to 4, enlarging the absolute right or as a sharer in all the properties of late Basappa and although the suit filed by her for declaration and permanent injunction abated on her death, she being the legitimate heir of late Basappa, the alienation made in a portion of the property available to the family of Basappa cannot be challenged. Even if it is challenged, the plaintiffs herein ought to have filed a comprehensive suit to determine the share of the parties. Suit filed in the present form by the plaintiffs is not maintainable without bringing all the properties which are available to late Basappa into common hotchpot. Apart from that, even if the plaintiffs seek a share in the property in question, then to protect the interest of defendants 2 to 4, they may have to part with other properties available to Basappa in a separate suit for partition against defendants 2 to 4, as they have purchased the property from the 1st defendant after the death of late Basappa. Since the share has been enlarged and the 1st defendant is entitled to succeed as one of the co-sharer, also having regard to the position of the plaintiffs that they are the illegitimate wife and children, defendant No.1 stands in a better footing than the plaintiffs. Hence, in my opinion, Section 14(1) of the Hindu Succession Act of 1956 straightaway applies to the case on hand, in the facts and circumstances of the case.
13. As per the provisions of Section 8 of the Hindu Succession Act of 1956, property of a male Hindu dying intestate shall devolve firstly upon the heirs being the relatives specified in class I of the schedule. The class I heirs of the schedule are a son, daughter, widow and others. In the case on hand, the 1st defendant Mahadevamma is a widow and falls within the category of class I heir. What is not in dispute is, though the property was given as a maintenance to the 1st defendant by way of a limited right, on the death of Basappa her right is enlarged i.e., the limited estate though is specifically mentioned, enlarges into an absolute right. In the event plaintiffs claim themselves also to be the heirs, their position is not better than that of the 1st defendant. Admittedly, the marriage of the 1st plaintiff is a void marriage during the subsistence of the marriage of the 1st defendant with deceased Basappa during his lifetime and the right to share in the property to the children born to them, is a restricted one unlike the 1st defendant who is a class I heir.
14. Section 18 of the Hindu Adoptions and Maintenance Act, 1956 reads thus:
18.) Maintenance of wife- (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Ac, shall be entitled to be maintained by her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,-
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of willfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injuries to live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion;
(g) if there is any other cause justifying her living separately.
(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.
This Act acts as a pre-existing right which was declared by the order of the Court and, by way of compromise or otherwise, a property was made available to the 1st defendant wherein a clause has also been introduced that she has to enjoy the property during her lifetime and thereafter, it reverts back to the plaintiffs. Here the question of reverting back does not arise in view of the fact that on the death of Basappa, the husband of 1st defendant, her right is enlarged and she is also entitled for a share. Thus, the property in her possession which was given to her as a right to maintenance prior to the death of her husband, on the death of her husband during 1996 during the subsistence of marriage ties between the 1st defendant and the deceased Basappa, the pre-existing right by way of limited ownership is enlarged into a absolute right and even Section 14(1) of the Hindu Succession Act mandates that after the commencement of this Act, the property shall be held by her as a full owner and not as a limited owner. In that view of he matter, the clause introduced that she is entitled for life estate and thereafter, it would be divested has become repugnant on the death of Basappa, the husband of the 1st defendant.
15. The explanation to Section 14(1) of the act also makes it clear that the property includes both movable and immovable acquired by a female Hindu by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance etc. When the explanation itself is very much clear to include the words ‘in lieu of maintenance or arrears of maintenance’, even assuming that it is given as a limited estate, by virtue of class I of the schedule, it enlarges into an absolute estate from limited estate. The ratio laid down in Tholasamma’s case referred supra clearly envisages that Section 14(1) of the Act clearly applies to the factual situation.
16. The contingency prior to enactment of Hindu Succession Act of 1956 in vogue was that, the woman has no right except the limited estate or life estate which came to be enlarged into an absolute right if there is a pre-existing right. But in this context, confusion is often being created to interpret as to the property possessed by female Hindu after the commencement of the Act. But in the facts and circumstances of the case in hand, on the death of her husband in the year 1996, the 1st defendant becomes a class I heir to inherit the property – not only the one which was given to her by way of maintenance but, she is equally entitled to a share in the other properties of late Basappa, as her legitimate right. Hence, as observed by me above, the suit filed by the plaintiffs in this form itself is not maintainable.
The appeal filed by defendants 2 to 4 is allowed while answering the substantial questions of law accordingly. No order as to costs.