Section 14 subSection (1) had no application in this case. The essential ingredient of Section 14 sub Section(1) is possession over the property. Admittedly the plaintiff was never in possession of the property. The possession was always that of the defendant and therefore Section 14 subSection (1) would not be applicable. In Ram Vishal (dead) by lrs. and Ors. v.Jagan Nath & Another. reported in (2004) 9 SCC 302 the position of possession being a prerequisite to sustain a claim under subsection (1) of Section 14 of the 1956 Act was confirmed in Para 16 which is quoted below:
‘16. In our view, the authority in Raghubar Singh case [(1998)
6 SCC 314] can be of no assistance to the respondent.
As has been held by this Court, a preexisting 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…’
[Emphasis Supplied]
5. As per the law as it existed at their relevant time the
property which was an agricultural property would devolve
upon the male child and daughters would get only a
limited right to maintenance till, they were married and the
widow would be entitled to maintenance from the income
from the property till her death or remarriage. As per the
family Settlement Deed dated 12.03.1938 which was relied
upon by both the parties, the property in dispute was
specifically allotted to Sami Vaidyar and his only son
Sukumaran. Therefore, the widow of Sami Vaidyar i.e.,
Choyichi will not have any right over the property. The
findings of all the courts below were that Choyichi was
never in possession of the property and therefore she
would not get the right, as claimed by her under Section
14(1) of the Hindu Succession Act, 1956.
2023INSC774
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.254 OF 2010
M. SIVADASAN (DEAD) THROUGH LRs. & ORS Vs A. SOUDAMINI (DEAD) THROUGH LRs. & ORS.
Dated: AUGUST 28, 2023.
1. The appellants had filed a suit for partition and mesne
profit way back in the year 1988, before the Court of
Principal Munsif, KozhikodeI,
Kerala, claiming ancestral
rights over the property comprising of Items 1 & 2 in Plaint
Schedule A; property admeasuring 33 ½ cents and 42
cents respectively. The Trial Court dismissed the suit of
the plaintiffs/appellants vide its Order and Judgment
dated 03.02.1993 on the ground that the land along with
the house sought to be partitioned is an agricultural land
on which the plaintiffs/appellants, cannot claim any right.
This finding of the Trial Court was upheld by the First
Appellate Court, and finally by the High Court of Kerela by
2
the impugned Judgment dated 29.01.2009 in second
appeal. In short, the present appellants have lost from all
the Courts below.
2. The contesting parties before this Court belong to
“Thiyyas” community of Kozhikode, Kerala who were
governed by Hindu Mitakshara law. The admitted position
is that amongst “Thiyyas” of Kozhikode, ancestral property
devolves only on the male children; daughters, have a right
of maintenance till the time of their marriage. We are
speaking here of the rights, including possession as it
existed prior to the Hindu Succession Act, 1956. The
plaintiff/appellant had filed a civil suit before the court of
Munsif for partition of the property which has a total area
of 75 ½ cents. Built on the land is the ancestral residential
house of the parties. The suit of partition was dismissed
by the trial court holding that Hindu Women’s Right to
Property Act, 1937 was not applicable to agricultural land,
till its amendment in the year 1946 and the succession to
the said property had opened in the year 1942 itself which
precedes the date of amendment.
3
3. The property originally belonged to Sami Vaidyar. On his
death in the year 1942, it devolved on his male successor
son Sukumaran. Rights on the property are being claimed
presently by the progenies or daughters of Sami Vaidyar
through their mother Choyichi, who was the widow of Sami
Vaidyar. The claim of the plaintiff was that Choyichi (who
died in the year 1962) had a right, though a limited right
under the Hindu Mitakshara law as well as by virtue of
Hindu Women’s Right to Property Act, 1937 which
blossomed into fullfledged
right under Section 14 subsection
(1) of Hindu Succession Act, 1956 which is
reproduced below:
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
4. This argument of the plaintiff was rejected by the Trial
Court and the same was upheld by the First Appellate Court
as well as by the Second Appellate Court on the reasoning
that after the death of Sami Vaidyar, his son Sukumaran
succeeded in the property in year 1942 itself. Thereafter,
Sukumaran and later the children succeeding Sukumaran
had the right over the property which undisputedly
remained in their possession. Section 14 subSection
(1)
had no application in this case. The essential ingredient of
Section 14 subSection
(1) is possession over the property.
Admittedly the plaintiff was never in possession of the
property. The possession was always that of the defendant
and therefore Section 14 subSection
(1) would not be
applicable. In Ram Vishal (dead) by lrs. and Ors. v.
Jagan Nath & Another. reported in (2004) 9 SCC 302 the
position of possession being a prerequisite
to sustain a
claim under subsection
(1) of Section 14 of the 1956 Act
was confirmed in Para 16 which is quoted below:
‘16. In our view, the authority
in Raghubar Singh case [(1998)
6 SCC 314] can be of no
assistance to the respondent.
As has been held by this Court,
a preexisting
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…’
[Emphasis Supplied]
5. As per the law as it existed at their relevant time the
property which was an agricultural property would devolve
upon the male child and daughters would get only a
limited right to maintenance till, they were married and the
widow would be entitled to maintenance from the income
from the property till her death or remarriage. As per the
family Settlement Deed dated 12.03.1938 which was relied
upon by both the parties, the property in dispute was
specifically allotted to Sami Vaidyar and his only son
Sukumaran. Therefore, the widow of Sami Vaidyar i.e.,
Choyichi will not have any right over the property. The
findings of all the courts below were that Choyichi was
never in possession of the property and therefore she
would not get the right, as claimed by her under Section
14(1) of the Hindu Succession Act, 1956.
6. We have heard at length Mr. P.N. Raveendran and Mr.
Sudhivasudevan, learned senior counsel appearing on
behalf of the appellants and Mr. V. Chitambaresh, learned
senior counsel, for the respondents/defendants. The effort
of the learned senior counsel for the appellants here was to
persuade us to reappreciate the entire case on facts, on
which three Courts have given the same findings. The
learned Counsel would argue that the determination of the
land in question as an agricultural land has been wrongly
done by all the three Courts. The argument which has
been put forward by the learned senior counsel before us is
on the reasoning that merely because the land has a few
coconut trees, that will not make it an agricultural land, as
in Kerela, coconut trees are found everywhere even in the
urban residential properties and their presence itself will
not make the land an agricultural land.
7. The land in question undoubtedly has coconut trees on it,
most of them are very old but fruit bearing, and moreover
in revenue records, the land is described as “theaattam”
i.e., “garden”. This would mean that the land in question
may be put for agricultural use. Theoretically, it is
possible that a land which is recorded as “theaattam” may
not be actually put for agricultural use. All the same, in
the present case, the overwhelming evidence which has
been duly appreciated by the three Courts below clearly
prove that the land was indeed an agricultural land. We
therefore find no reason to take a different view at this
stage.
8. We must state here that this case is here before us in a
Special Leave Petition filed under Article 136 of the
Constitution of India. It is true that leave has been granted
in this case. Nevertheless, the settled legal position
remains that even after leave is granted and appeal is
admitted, the appellants must show that exceptional and
special circumstances exist to reverse the findings, or grave
injustice will be done if the decision under challenge is not
interfered with. We do not find any special circumstances
here which may warrant our interference. [See Pritam
Singh v. State, AIR (1950) SC 169: (1950) SCR 453, Hem
Raj v. State of Ajmer AIR (1954) SC 462: (1954) SCR
8
1133, Bengal Chemical & Pharmaceutical Works Ltd.
v. Employees, AIR (1959) SC 633: 1959 Supp (2) SCR 136:
(1959) 1 LLJ 413, Municipal Board, Pratabgarh and
Anr. v. Mahendra Singh Chawla and Ors. (1982) 3 SCC
331: (1983) SCC (L&S) 19, Taherakhatoon (dead) by LRs
v. Salambin Mohammad (1999) 2 SCC 635].
9. There is another aspect of the matter. Admittedly the
defendants have all along been in possession of the
property. The finding of adverse possession in favour of the
defendants by the Trial Court, was never challenged by the
plaintiffs/appellants before the First Appellate Court. We
refer here the observations of the High Court which are as
under:
“10…It is pertinent to note that
the findings of the trial court
that the rights, if any, of the
plaintiffs have been lost by
adverse possession and ouster
does not appear to have been
assailed before the lower
appellate court. The lower
appellate court also did not
interfere with the said finding…”
9
Consequently, even if we keep nature of the land aside for
a while, the present appeal is liable to be dismissed on this
ground alone.
10. The concurrent findings on facts by the Trial Court and the
First Appellate Court have been reaffirmed in second
appeal by the High Court, yet by and large the entire
submissions of the appellants is nothing but a persuasion
before this Court for reappraisal of the case on facts.
11. In view of the above discussion, the judgment of the Trial
Court and First Appellate Court, affirmed by the High
Court in second appeal on 29.01.2009 is upheld and the
present appeal is hereby dismissed. The order granting
status quo by this Court dated 06.01.2010 stands vacated.
No order as to costs.
…………………………..J.
[C.T. RAVIKUMAR]
…………………………..J.
[SUDHANSHU DHULIA]
AUGUST 28, 2023.
NEW DELHI
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