following question is formulated for decision in the second
appeal :
"Whether the right of Kalikutty for maintenance
out of the proceeds of the suit property has
become an absolute right in her favour by virtue
of Section 14 of the Hindu Succession Act?"
4. The right of maintenance of a Hindu widow is not a
right to property, but only a right against the property [See
Vaddeboyina Tulasamma v. Vaddeboyina Sesha Reddi
(AIR 1977 SC 1944)]. In Suraj Mal v. Babu Lal (AIR 1985
Delhi 95), the Delhi High Court held that the provisions
contained in Section 14 of the Hindu Succession Act would
apply to property possessed by a Hindu female and to which
she had some kind of title, however restricted the nature of her
interest may be. It was clarified by the Delhi High Court in the
said case that Section 14 of the Hindu Succession Act will not
have any application to a case where a widow had no rights
whatsoever in the properties except a right of maintenance out
of the proceeds of the property. Later, in Ram Vishal v. Jagan
Nath [(2004)9 SCC 302], the Apex Court reiterated the
aforesaid propositions holding that to come within the scope of
the said Section of the Hindu Succession Act, the Hindu female
must not only be possessed of the property but she must have
acquired the property either by way of inheritance or devise, or
at a partition or "in lieu of maintenance or arrears of
maintenance" or by gift or her own skill or exertion or by
purchase or by prescription and a mere right of maintenance
without acquisition of some right in the property is not sufficient
to attract the said Section. Paragraph 16 of the said judgment
of the Apex Court reads thus :
"16. In our view, the authority in Raghubar Singh case3 can be of
no assistance to the respondent. As has been held by this Court, a
pre-existing right is a sine qua non for conferment of a full
ownership under Section 14 of the Hindu Succession Act. The
Hindu female must not only be possessed of the property but she
must have acquired the property. Such acquisition must be either
by way of inheritance or devise, or at a partition or "in lieu of
maintenance or arrears of maintenance" or by gift or by her own
skill or exertion, or by purchase or by prescription. In the present
matter, it is nobody's case that Manki had got possession of the
1/4th share in lieu of maintenance or in arrears of maintenance. It
was also not their case that there was a partition of the property
and that in such partition, she had been given the property. A
mere right of maintenance without actual acquisition in any
manner is not sufficient to attract Section 14."
As far as the present case is concerned, the plaintiff has no
case that Kalikutty had acquired any right in the property by
way of inheritance or devise, or at a partition or "in lieu of
maintenance or arrears of maintenance" or by gift or her own
skill or exertion or by purchase or by prescription. As such, it
cannot be held that Kalikutty had limited interest in the
property within the meaning of Section 14 of the Hindu
Succession Act.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 7TH DAYOF JANUARY 2016
SA.No. 357 of 2003
VASUDEVAN,
Vs
DEVAKAY,
Citation: AIR 2016 (NOC) 442 Kerala
The defeated first defendant in a suit for partition is the
appellant.
2. The suit property belonged to one Kalavan. The
plaintiff and defendants 1 to 3 are the children of Kalavan.
Defendants 4 and 5 are the children of the deceased daughter
of Kalavan. The property sought to be partitioned was a
property purchased by Kalavan in the year 1920. According to
the plaintiff, Kalavan died intestate after the Hindu Succession
Act and as such, on his death, the suit property devolved on the
plaintiff and defendants and that she is entitled to 1/5 share
over the same. The first defendant resisted the suit, while
defendants 2 to 5 supported the plaintiff. According to the first
defendant, Kalavan died on 14.4.1946, prior to the Hindu
Succession Act and as such, since the parties were governed
by Hindu Mitakshara Law, the suit property devolved
exclusively on him, being the only son of Kalavan. The trial
court accepted the case of the first defendant and dismissed
the suit. The plaintiff took up the matter in appeal. Since the
plaintiff was not able to assail the finding of the trial court that
Kalavan died prior to the Hindu Succession Act, the contention
raised by her before the appellate court was that on the death
of Kalavan, the suit property devolved on his wife Kalikutty and
the first defendant and since Kalikutty died after the Hindu
Succession Act, the plaintiff, at any rate, is entitled to 1/10
share in the suit property as one of the legal representatives of
Kalikutty. According to the plaintiff, Kalikutty was entitled to
one half right in the suit property on the death of Kalavan as
per the provisions of the Hindu Women's Rights to Property Act,
1937. The first defendant resisted the said contention of the
plaintiff pointing out that being an agricultural property, the suit
property is not covered by Hindu Women's Rights to Property
Act, 1937. According to the first defendant, agricultural
properties were brought under the purview of the said Act in
the Province of Madras where the property was situated at the
relevant time, only with effect from 18.12.1947 by virtue of the
Madras Hindu Women's Rights to Property (Extension to
Agricultural Land) Act, 1947 and since the succession opened
up on the death of Kalavan on 14.4.1946 itself, Kalikutty had
not acquired any right over the suit property which is
admittedly an agricultural property. On an appraisal of the
materials on record, the appellate court took the view that
Kalikutty was entitled to maintenance out of the profits of the
suit property and since she was also in possession of the suit
property, the said right of maintenance blossomed into an
absolute right by virtue of Section 14 of the Hindu Succession
Act. Consequently, the appellate court reversed the decision of
the trial court and passed a preliminary decree declaring the
1/10 share of the plaintiff over the suit property. The first
defendant who is aggrieved by the said decision of the
appellate court has thus come up in this second appeal.
3. After hearing the learned counsel on either side, the
following question is formulated for decision in the second
appeal :
"Whether the right of Kalikutty for maintenance
out of the proceeds of the suit property has
become an absolute right in her favour by virtue
of Section 14 of the Hindu Succession Act?"
4. The right of maintenance of a Hindu widow is not a
right to property, but only a right against the property [See
Vaddeboyina Tulasamma v. Vaddeboyina Sesha Reddi
(AIR 1977 SC 1944)]. In Suraj Mal v. Babu Lal (AIR 1985
Delhi 95), the Delhi High Court held that the provisions
contained in Section 14 of the Hindu Succession Act would
apply to property possessed by a Hindu female and to which
she had some kind of title, however restricted the nature of her
interest may be. It was clarified by the Delhi High Court in the
said case that Section 14 of the Hindu Succession Act will not
have any application to a case where a widow had no rights
whatsoever in the properties except a right of maintenance out
of the proceeds of the property. Later, in Ram Vishal v. Jagan
Nath [(2004)9 SCC 302], the Apex Court reiterated the
aforesaid propositions holding that to come within the scope of
the said Section of the Hindu Succession Act, the Hindu female
must not only be possessed of the property but she must have
acquired the property either by way of inheritance or devise, or
at a partition or "in lieu of maintenance or arrears of
maintenance" or by gift or her own skill or exertion or by
purchase or by prescription and a mere right of maintenance
without acquisition of some right in the property is not sufficient
to attract the said Section. Paragraph 16 of the said judgment
of the Apex Court reads thus :
"16. In our view, the authority in Raghubar Singh case3 can be of
no assistance to the respondent. As has been held by this Court, a
pre-existing right is a sine qua non for conferment of a full
ownership under Section 14 of the Hindu Succession Act. The
Hindu female must not only be possessed of the property but she
must have acquired the property. Such acquisition must be either
by way of inheritance or devise, or at a partition or "in lieu of
maintenance or arrears of maintenance" or by gift or by her own
skill or exertion, or by purchase or by prescription. In the present
matter, it is nobody's case that Manki had got possession of the
1/4th share in lieu of maintenance or in arrears of maintenance. It
was also not their case that there was a partition of the property
and that in such partition, she had been given the property. A
mere right of maintenance without actual acquisition in any
manner is not sufficient to attract Section 14."
As far as the present case is concerned, the plaintiff has no
case that Kalikutty had acquired any right in the property by
way of inheritance or devise, or at a partition or "in lieu of
maintenance or arrears of maintenance" or by gift or her own
skill or exertion or by purchase or by prescription. As such, it
cannot be held that Kalikutty had limited interest in the
property within the meaning of Section 14 of the Hindu
Succession Act.
5. The learned counsel for the plaintiff, relying on the
decision of the Apex Court in Subhan Rao v. Parvathi Bai (JT
2010 (9) SC 553), contended that if a Hindu female is put in
possession of property pursuant to or in recognition of a right to
maintenance, it cannot be denied that she has acquired a
limited right or interest in the property and once that position is
accepted, it follows that the rights get enlarged to full
ownership under Section 14(1) of the Hindu Succession Act.
Subhan Rao v. Parvathi Bai (supra) is a case where a Hindu
widow was conferred a right to possession of an item of
property by its owner in recognition of her right to maintenance
by virtue of a document executed in that behalf. The said case,
unlike the instant one, is a case where the Hindu female had
acquired an interest in the property in lieu of her right of
maintenance and would therefore, fall within the ambit of
Section 14(1) of the Hindu Succession Act.
6. The question formulated for decision is thus answered
in favour of the appellant.
7. In the result, the second appeal is allowed, the
impugned decision is set aside and the decision of the trial
court is restored.
Sd/-
P.B.SURESH KUMAR, JUDGE
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