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TMI Blog2019 (4) TMI 2116X X X X Extracts X X X X X X X X Extracts X X X X ..... intenance, having pre-existing right over the subject property in question on the date the Act, 1956 came into force(i.e. 17th June, 1956). In that reference, the claim was considered by this Court and held that the pre-existing right of the widow on the date of the commencement of the Act, 1956 will get her the absolute rights over the subject property. In the instant case, the Appellant although was holding possession but not under any of the devise referred to under explanation to Section 14(1) of the Act, 1956 and mere possession would not confer pre-existing right of possession over the subject property to claim full ownership rights after the Act, 1956 came into force by operation of law and this what was considered and negated by the High Court in the impugned judgment. The appeal fails and is accordingly dismissed. - A.M. Khanwilkar And Ajay Rastogi, JJ. For the Appellant : J.M. Khanna, Tanuj Bagga Sharma and Shefali Khanna Sethi, Advs. For the Respondents : Rajinder Mathur, S. Janani, Shruti Bist and Nishant Kumar, Advs. JUDGMENT AJAY RASTOGI, J. 1. This is the Defendant's appeal by special leave against the judgment of the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luding Smt. Banti and Smt. Ajit Kaur, original (Defendant No. 1) and (Defendant No. 25) Appellant herein and other daughter Gurdev Kaur. In reference to the aforesaid will dated 5th January, 1973, Civil Suit No. 15/1975 was filed by the Plaintiff for possession. The Appellant contested the suit and it was claimed by her that Banti was the absolute owner of the suit property. She even denied the earlier litigation between the parties whereby reversionary rights of Darshan Singh came to be upheld. The will as claimed by the Plaintiffs dated 5th January, 1973 was also contested. 3. On the other hand, the Appellant in separate litigation between the parties reached upto the Regular Second Appeal No. 933/1984 and the validity of the will dated 5th January, 1973 came to be upheld by the High Court vide judgment dated 28th July, 2004 and the Special Leave Petition(Civil) No. 24724/2004 preferred at the instance of the Appellant came to be dismissed as not pressed. According to the will dated 5th January, 1973, the original Plaintiffs became entitled to claim the property of Bhana(deceased) including the land in dispute to the exclusion of the present Appellant. It was stated in the wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 5th January, 1973 without taking note of a subsequent will executed by the testator dated 21st February, 1973 and the finding which has been recorded by the first appellate Court in reference to a later will dated 21st February, 1973 is perverse and no adverse inference could be drawn and it needs to be reviewed by this Court. 7. Learned Counsel further submits that the progeny of Bhana was consisting of one son and three daughters from the first wife since deceased and another daughter alongwith widow from the second marriage. If plainly the succession stood opened after the enforcement of Act, 1956 then even one son and three daughters from first wife would get 2/3rd of the property and widow and one daughter i.e. from second marriage would get 1/3rd property. So far as the finding in reference to the will dated 5th January, 1973 is concerned, it was never proved or produced before the trial Court and could not be agitated at a belated stage. 8. Learned Counsel submits that the first appellate Court as well as the High Court in second appeal has misconstrued the law applicable to the coparcenary property and right of the female to succeed would be defeated by execution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the findings recorded by the first appellate Court and confirmed by the High Court in appeal submits that the subject land in dispute was mutated in the name of Smt. Banti on the basis of the oral gift and the suit which was filed by the Respondents for mutation would not bind their reversionary rights on the suit land and that has been held by all the courts that the alleged oral gift has not been proved and being the concurrent finding of fact, needs no further indulgence. Learned Counsel further submits that if the Respondents cannot rely upon the said decree to seek possession of the land yet the findings in the suit proceedings would bind the parties. It was never the case of the Appellant that the suit land was given to her mother Banti in lieu of the maintenance. On the contrary, it was pleaded that such land was given to her in lieu of service rendered and the subject land which was given to her mother Banti in lieu of maintenance has been specifically mentioned in the will dated 5th January, 1973 of late Bhana. In the aforesaid will, late Bhana(testator) also mentioned that Smt. Banti was living in adultery and separate from him for more than 20 years and merely being i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fiscal proceedings and does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation has been ordered, to pay the land revenue. At the same time, the effect of a declaratory decree to restore the property alienated to the estate of the alienor is that until and unless the alienees are able to convince the court that they have no subsisting interest in the property, the heirs of the alienor would be entitled to the benefits of the property as per the law of succession. The effect of the operation of the aforesaid declaratory decree would be to restore the land in dispute to the aforesaid estate of Bhana(deceased) and the succession would be deemed to have opened on 27th March, 1973 when Bhana died. On his death, the estate left behind him including the land in dispute would devolve upon his heirs as per their entitlement and after the registered will dated 5th January, 1973 has been upheld by the High Court in RSA No. 933/1984 decided on 28th July, 2004 and attained finality, its consequence was to follow accordingly. 15. The submission of learned Counsel for the Appellant that the Appellant being in possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the properties and Respondents 1 and 2 cannot, therefore, proceed with the execution case. We are unable to accept this argument as correct. At the time of Eran Gowda's death the Hindu Women's Right to Property Act, 1937 (Act 18 of 1937) had not come into force. It is admitted by Mr. Sinha that the Act was extended to Hyderabad State with effect from February 7, 1953. It is manifest that at the time of promulgation of Hindu Succession Act, 1956 the Appellant had no manner of title to properties of Eran Gowda. Section 14(1) of the Hindu Succession Act states: 14. (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.-- In this Sub-section, 'property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, 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 other manner whatsoever, and also any such p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... validate the illegal possession of female Hindu and it does not confer any title on a mere trespasser. In other words, the provision of Section 14(1) of the Act cannot be attracted in the case of a Hindu female who is in possession of the property of the last male holder on the date of the commencement of the Act when she is only a trespasser without any right to property. 17. It was further considered by a three-Judge Bench of this Court in V. Tulasamma and Ors. v. Sesha Reddy(Dead) by L.Rs. 1977(3) SCC 99 and interpretation of Section 14(1) and (2) of the Act, 1956 has been summarized as under: 62. We would now like to summarise the legal conclusions which we have reached after an exhaustive considerations of the authorities mentioned above on the question of law involved in this appeal as to the interpretation of Sections 14(1) and (2) of the Act of 1956. These conclusions may be stated thus: (1) The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee. (5) The use of express terms like 'property acquired by a female Hindu at a partition', 'or in lieu of maintenance', 'or arrears of maintenance', etc. in the Explanation to Section 14(1) clearly makes Sub-section (2) inapplicable to these categories which have been expressly excepted from the operation of Sub-section (2). (6) The words 'possessed by' used by the Legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the Section does not contemplate the posse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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