11. Incidentally, in Tulasamma's case, the instrument, under which the property had been conferred on Tulasamma was circumscribed by certain conditions. The question whether those conditions restricted the right of the Tulasamma was covered under sub-section (2) of Section 14 was answered in the negative and the Court read down the conditions imposed and the property was treated as her absolute property. In the present case on hand, there are not even any such restrictions imposed and it was acted upon, in the mutation entries being effected on an application made by the plaintiff himself and therefore he was estopped from contending otherwise to defeat the right which is absolutely protected under Section 14 of the HS Act.
Consequently, the substantial question of law is answered in favour of the appellants and both the Courts below were wrong in their conclusions that the sale deed in favour of appellant No. 2 was null and void as it was on the basis of the opinion formed that appellant No. 1 did not have absolute right over the property. The substantial question of law stands answered in the vein aforesaid.
IN THE HIGH COURT OF KARNATAKA (KALABURAGI BENCH)
Regular Second Appeal No. 562/2005
Decided On: 19.07.2016
Anusuya and Ors. Vs. Mallayya
Coram:Anand Byrareddy, J.
Citation:AIR 2016 karnataka, 201
1. Heard the learned Counsel for the appellants. The learned Counsel for the respondent remains absent. It is noticed that he was absent on previous occasions as well. And on the earlier occasion, the matter was adjourned only to enable Shri S.G. Math to produce certain additional documents.
2. The learned Counsel seeking to represent Shri S.G. Math, has now produced a certified copy of the sale deed executed in favour of appellant No. 2, which is not an additional document, but a document which was already on record. Therefore, no useful purpose is served in adjourning the matter further to secure the presence of Shri S.G. Math, if has chosen to keep away from the Court. Accordingly, the appeal is heard.
3. The facts leading up to the appeal are that the respondent, who is the husband of appellant No. 1 had filed a civil suit in O.S. No. 127/1994 seeking a declaration that he was the owner of the land bearing Survey No. 94/2B measuring 4 acres 31 guntas of Kommanur village, Lingasugur taluk, Raichur district and for perpetual injunction against appellant No. 2 from alienating the said property. The plaint was then said to have been amended also seeking the relief of recovery of possession of the suit schedule property. The plaint was further amended to implead appellant No. 2 on the ground that during the pendency of the suit, the suit property had been purchased by appellant No. 2 under a registered sale deed and a further relief of declaration that the sale deed was null and void was also incorporated.
It is was the plaintiff's case that appellant No. 1 and he were married about 25 years prior to the suit and that it was a child marriage and at the time of marriage, the plaintiff was said to be 11 years old and appellant No. 1 was 4 years old. It is his further case that even after attaining puberty, appellant No. 1 did not join him in her matrimonial home and therefore he had taken another wife, by whom he had begotten three children. It was the further case that land bearing Sy. No. 94/2, totally measured 9 acres 22 guntas and it was one compact parcel of land. It was not assigned two different survey numbers. However, it is his allegation that appellant No. 1 had got her name mutated in the record of rights in respect of a portion of the land as Sy. No. 94/2B, measuring 4 acres 31 guntas somewhere in the year 1985 and this was not to the knowledge of the plaintiff. It is only when he received the Court summons in a civil suit said to have been filed by appellant No. 1 in O.S. No. 218/1989 on the file of the Munsiff Court at Hungund, Bijapur district. That he became aware of the same. After entering appearance, he had filed written statement in the said suit. He had, in turn, filed a suit in O.S. No. 75/1991 against appellant No. 1 and others for declaration of ownership and injunction, in which the appellant had filed a consent written statement admitting the ownership of the plaintiff and accordingly, the said suit has been decreed in so far as the lands and house situated in Kodihal village in Hungund taluk. But, the suit had been dismissed insofar as the suit schedule land described in the present suit is concerned as the Court of Munsiff, Hungund had formed an opinion that the present suit schedule property could not be included in the civil suit in O.S. No. 75/1991 as it was situated outside the jurisdiction of the Court of Hungund and accordingly, the suit was partly dismissed insofar as it pertained to the present suit schedule property, which was one of the properties described therein. Later on, it is alleged that appellant No. 1 had withdrawn the suit in O.S. No. 218/1989, as settled out of Court.
Further, it is stated that the plaintiff had filed an application before the Tahsildar of the taluk on 20.9.1993, wherein appellant No. 1 had filed objections and the matter was treated as a disputed case, as appellant No. 1 had opposed the change of entries on the basis of the decree in O.S. No. 75/1991 and O.S. No. 218/1989.
It is in this background that the plaintiff-respondent was constrained to file yet another suit, namely, the present suit. On service of summons, appellant No. 1 had filed a detailed written statement denying the case of the plaintiff on the ground that when the plaintiff married for the second time, a Panchayath was called for in the presence of the witnesses examined as DWs. 2 and 3 and others. In which the plaintiff had agreed to give half of the suit schedule property and another half parcel of the land in Kodihal village, Hungund taluk and the residential house to appellant No. 1, in lieu of maintenance. On the same day, the parcels of land were identified in the presence of Panchayathdars and the land measuring 4 acres 31 guntas, was handed over to appellant No. 1 and on the basis of the application filed by the plaintiff, her name was entered in the record of rights as per mutation order vide Ex. D5 in the year 1985 and that she has been in possession of the land as the owner and she had not filed any consent written statement in O.S. No. 75/1991, admitting ownership and possession over the suit land.
On coming to know of the filing of consent written statement, she had even filed two suits in O.S. No. 26/1992 for the relief of perpetual injunction and O.S. No. 82/1992 for the relief of setting aside the decree in O.S. No. 75/1991 on the allegation of fraud and those suits were pending on the file of the Court of Munsiff, Hungund. Therefore, the decree passed in O.S. No. 75/1991 had not attained finality.
It was further claimed by appellant No. 1 that she was not in good health and in order to meet the litigation expenses, she was compelled to raise a loan and in order to repay the loan amount, he was forced to sell the suit properties in favour of appellant No. 2 and appellant No. 2 was already in possession of the suit schedule property. Appellant No. 2 in turn had sought to be impleaded as a party and to contest the suit on the footing that he was a bona fide purchaser for value and without the knowledge of the pendency of the litigation he had purchased the suit property. The Trial Court had framed the following issues:
"1. Does the plaintiff prove that he is the absolute owner of the suit property?
2. Does the plaintiff prove that he is in lawful possession of the suit property as on the date of suit?
3. Does the plaintiff prove that there is interference by the defendant to the lawful possession of plaintiff over suit property?
4. Does the plaintiff prove that the defendant is estopped from denying the admission given is O.S. No. 75/1991?
5. Does the defendant prove that the suit property is in lieu of her maintenance?
6. Does the defendant prove that the suit of the plaintiff is barred by limitation?
7. Does the plaintiff prove that he is entitled for the relief sought against the defendant?"
Additional Issue framed on 25.07.1996.
"1. Whether the plaintiff is entitled to recover the possession of the suit property from the defendant, in view of ousting the plaintiff from possession of the suit property by the defendant on 20.01.1996 onwards?"
The Trial Court answered issue Nos. 1, 2 and 4 in the affirmative and held that issue No. 3 would not survive for consideration and issue No. 5 was held in the negative. Issue No. 6 was held in favour of plaintiff and the additional issue was held in the affirmative and the suit was decreed accordingly.
The sale deed executed by appellant No. 1 in favour of appellant No. 2 was declared as null and void. In an appeal before the First Appellate Court by the appellants, the judgment of the Trial Court was affirmed and therefore the present appeal.
4. This Court, while admitting the appeal, has framed the following substantial question of law.
"Whether the concurrent findings of the Court below declaring the title of the plaintiff in respect of the property despite the land having been conferred on defendant No. 1, in lieu of maintenance was perverse and contrary to the law and the evidence on record?"
5. The learned Counsel for the appellants and the respondents are heard at length.
6. The learned Counsel for the appellant No. 1 would contend that the lower appellate court having held that the civil suit in OS 75/1991 having been dismissed in respect of the suit schedule property and hence the same would not bind appellant No. 1, could not then have proceeded to confirm the decree of the trial court only on the ground that there was no registered document to evidence the title of the petitioner to the land in question, when the said suit property was given to appellant No. 1 in lieu of maintenance. And the lower appellate court having also opined that mere entries in the record of right in respect of the land in favour of appellant No. 1, could not confer any right over the property. This is contrary to the tenor and spirit of Section 14 of the Hindu Succession Act, 1956 (Hereinafter referred to as the 'HS Act', for brevity).
The opinion of the lower appellate court to the further effect that even if the property had been given to appellant No. 1 in lieu of maintenance, she could at most enjoy the usufructs of the suit property, which were given to her and therefore proceeded to conclude that the suit of the plaintiff for possession ought to be decreed, was contrary to the settled legal position.
That when the possession of appellant No. 1 was not illegal, and if the property was given to her in lieu of maintenance, as disclosed in Exhibit D. 5, the court having concluded that she would have no absolute right over the property and that the property should revert to the plaintiff, was contrary to the legal position.
It is also contended that the finding of the courts below is to the effect that Exhibit D. 6, the order passed by the Assistant Commissioner, Lingasugur was without any basis in the absence of a certified copy of the application said to have been filed by the plaintiff not having been produced. This, the learned Counsel would point out, is clearly an erroneous finding and the courts below have overlooked the evidence available on record and therefore would require this court to reverse the findings of the trial court. In that, in the order passed by the Assistant Commissioner at Exhibit D. 5, it is held as follows:-
"On the perusal of the original mutation filed, it is seen that the appellant had given an application to the Village Accountant wherein he has stated that the land in Survey Number is left to his first wife."
This was clearly with reference to the declarations by the plaintiff himself and that having been noticed from the original file by the Assistant Commissioner, it could not be said by the courts below that there was no basis for the change of mutation entries in favour of the appellant No. 1 of the property having been given to her in lieu of maintenance.
The learned counsel would also point out that there was no issue framed by the trial court a regards the binding nature of the sale deed executed by appellant No. 1 in favour of appellant No. 2 and the point for consideration framed by the lower appellate court as to whether appellant No. 2 was a bona fide purchaser for value without notice of the litigation, ought to have remanded the matter to the trial court, to enable appellant No. 2 to tender evidence in this regard.
However, the lower appellate court having proceeded notwithstanding this aspect of the matter, could not have arrived at a finding to the prejudice of appellant No. 2, without any such opportunity being afforded to demonstrate that he was a bona fide purchaser for value. It is the above primary contentions which are urged in support of the substantial questions of law framed in this appeal.
7. The learned Counsel for appellant No. 2 would also support the case of the appellant No. 1 and would submit that in the lis between the respondent - plaintiff and appellant No. 1, the property which has been purchased by him, as a bona fide purchaser for value, ought not to be jeopardised and the sale deed executed in his favour being legal and valid, cannot be declared as null and void in the face of the legal position as to the right of appellant No. 1, which ripens into an absolute right under Section 14, and would not require a formal document of conveyance being executed and it is by virtue of operation of law that appellant No. 1 would be absolute owner of the land given to her in lieu of maintenance.
8. While the learned counsel for the respondent, on the other hand, would contend that appellant No. 1 having filed a consent statement in the suit filed by the plaintiff, is precluded from denying that the suit property was not the subject property that was given to her in lieu of maintenance, but it was one other item of land, namely, survey No. 53/4, measuring 1 acre 36 guntas of Kodihal village and that the suit property continued to remain as the absolute property of the plaintiff.
It is his further grievance that appellant No. 1 having sold the said item of property, has also chosen to sell the present suit property, though it was never offered to her in lieu of maintenance.
9. However, it is to be seen that the respondent is canvassing a whole new case and this was not the stand before the court below and therefore, the endeavour on the part of the Counsel to project a totally new case is impermissible. It is only the substantial question of law that would be required to be answered by this court and to reconcile the same with the judgments of the courts below.
In this endeavour, it is necessary to first take note of the language and tenor of Section 14 of the HS Act:
"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 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 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."
The explanation to sub-section (1) would indicate that the property, as contemplated under the section, would include both movable and immovable properties and it could be acquired by a female Hindu by inheritance, in which case, there would be no documentation or devise, where there is conveyance or at a partition, in which case, it could be an oral partition as well, or in lieu of arrears of maintenance. The property given in lieu of maintenance is not required to be conveyed under a registered document. It would suffice if there is acceptable evidence to indicate that it was indeed given in lieu of maintenance. In this regard, there is a document at Exhibit D. 3, whereby the plaintiff has declared that the suit property as well as one other item of property, apart from a house is given to the appellant No. 1 in lieu of maintenance. Therefore, it would not appear that there was a requirement of conveyance insofar as the husband giving to his wife certain property in lieu of maintenance. If there is a declaration to this effect, that would evidence this circumstance it would be adequate. In the present case on hand, it is on the basis of the said written application of the plaintiff himself, that the revenue authorities have proceeded to carry out the mutation entries in favour of appellant No. 1 and this would be sufficient to confer absolute title in favour of the wife, appellant No. 1.
The learned Counsel for appellant No. 1 has placed reliance on a decision of the Supreme Court in V. Tulasamma vs. Sesha Reddy, MANU/SC/0380/1977 : AIR 1977 SC 1944, wherein the points that fell for consideration in the said decision were as follows:-
"1. Whether the instrument of compromise under which the properties were given to the appellant Tulasamma before the 1956 Act in lieu of maintenance falls within Section 14(1) or is covered by Section 14(2) of the 1956 Act; and
2. Whether a Hindu widow has a right to property in lieu of her maintenance, and if such a right is conferred on her subsequently by way of maintenance it would amount to mere recognition of a pre-existing right or a conferment of a new title so as to fall squarely within Section 14(2) of the 1956 Act."
After noticing the divergence of judicial opinion on the subject, where various High Courts had taken contrary views on this point, the court has proceeded to consider the real legal nature of the incidence of a Hindu Wife's right to maintenance and has quoted from Colebrooke's book -'Digest of Hindu Law', Volume II, where the status of a wife is described thus:
"A wife is considered as half the body of her husband, equally sharing the fruit of pure and impure acts; whether she ascend the pile after him, or survive for the benefit of her husband, she is a faithful wife. This being the position after marriage, it is manifest that the law enjoins a corresponding duty on the husband to maintain his wife and look after her comforts and to provide her food and raiment. It is well settled that under the Hindu Law the husband has got a personal obligation to maintain his wife and if he is possessed of properties then his wife is entitled as of right to be maintained out of such properties. The claim of a Hindu widow to be maintained is not an empty formality which is to be exercised as a matter of concession or indulgence, grace or gratis or generosity but is a valuable spiritual and moral right which flows from the spiritual and temporal relationship of the husband and wife. As the wife is in a sense a part of the body of her husband, she becomes co-owner of the property of her husband though in a subordinate sense. Although the right of maintenance does not per se create a legal charge on the property of her husband, yet the wife can enforce this right by moving the Court for passing a decree for maintenance by creating a charge. This right is available only so long as the wife continues to be chaste. Thus the position is that the right of maintenance may amount to a legal charge if such a charge is created either by an agreement between the parties or by decree.
Further, quoting from Golapchandra Sarkar Sastri's Hindu Law, the nature of the liability of the husband to maintain his wife, is extracted:
"When the husband is alive, he is personally liable for the wife's maintenance, which is also a legal charge upon his property, this charge being a legal incident of her marital co-ownership in all her husband's property....... But after his death, his widow's right of maintenance becomes limited to his estate, which, when it passes to any other heir, is charged with the same..... There cannot be any doubt that under Hindu law the wife's or widow's maintenance is a legal charge on the husband's estate; but the Courts appear to hold, in consequence of the proper materials not being placed before them, that it is not so by itself, but is merely a claim against the husband's heir, or an equitable charge on his estate; hence the husband's debts are held to have priority, unless it is made a charge on the property by a decree."
And after careful consideration and detailed analysis of the authorities on Shastric Hindu Law, the following propositions with respect to the incidence and characteristics of a Hindu Woman's right to maintenance:
"(1) that a Hindu woman's right to maintenance is a personal obligation so far as the husband is' concerned, and it is his duty to maintain her even if he has no property. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow;
(2) though the widow's right to maintenance is not a right to property but it is undoubtedly a pre-existing right in property, i.e. it is a jus ad rem and not jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a decree from the civil court;
(3) that the right of maintenance is a matter of moment and is of such importance that even if the joint property is sold and the purchaser has notice of the widow's right to maintenance, the purchaser is legally bound to provide for her maintenance;
(4) that the right to maintenance is undoubtedly a preexisting right which existed in the Hindu Law long before the passing of the Act of 1937 or the Act of 1946, and is, therefore, a pre-existing right;
(5) that the right to maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which the wife becomes a sort of co-owner in the property of her husband, though her co-ownership is of a subordinate nature; and
(6) that where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchases the same is in a position to make due arrangements for her maintenance."
And thereafter, the Apex Court has proceeded to determine the questions of law that arose for consideration in that case and the legal conclusions on the question of law are 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 recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists stratify from Yajnavalkya to Manu. Such weight may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights.
(2) Section 14(j) and the Explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends, sought to be achieved by this long needed legislation.
(3) Sub-section (2) of Section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of Section 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by Section 14(1) or in a way so as to become totally inconsistent with the main provision.
(4) Sub-section (2) of s. 14 applies to instruments, decrees, awards, gifts etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise preexisting rights. In such cases a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the female's limited interest would automatically be enlarged into an absolute one by force of section 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-section (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 possession of any rank trespasser without any right or title.
(7) That the words "restricted estate" used in section 4(2) are wider than limited interest as indicated in section 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee.
10. Hence, applying the above principles enunciated, to answer the substantial question of law framed in this appeal, it could be safely said that the suit property was given to appellant No. 1 under Exhibit D. 5 in lieu of maintenance and there could be no restriction on the appellants' right over the property and it definitely did not require any registered conveyance in order that she could claim an absolute right over the property on such property being given in lieu of her maintenance.
11. Incidentally, in Tulasamma's case, the instrument, under which the property had been conferred on Tulasamma was circumscribed by certain conditions. The question whether those conditions restricted the right of the Tulasamma was covered under sub-section (2) of Section 14 was answered in the negative and the Court read down the conditions imposed and the property was treated as her absolute property. In the present case on hand, there are not even any such restrictions imposed and it was acted upon, in the mutation entries being effected on an application made by the plaintiff himself and therefore he was estopped from contending otherwise to defeat the right which is absolutely protected under Section 14 of the HS Act.
Consequently, the substantial question of law is answered in favour of the appellants and both the Courts below were wrong in their conclusions that the sale deed in favour of appellant No. 2 was null and void as it was on the basis of the opinion formed that appellant No. 1 did not have absolute right over the property. The substantial question of law stands answered in the vein aforesaid.
The appeal is allowed and the judgment and decree of the lower appellate court as well as the trial court are set aside.
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