TaxTMI 
TaxTMI 
1998 (7) TMI 682
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....Rabiraj Singh Pancham Singh =Kalawati Osersingh Samsher Singh. Manpher Raghubir singh & Ors. (Defendant No. 1)=Appellants Gulabsingh (Pltiff.1) Jokhai Singh Sheojorsingh (Pltff.3) (Pltff.2) (Respondents) Manraj singh son of Dhurandhar singh and grandson of Hakimsingh son of the common ancestor of the parties Subransingh, executed a will (Ex.D-5) on 23.7.1946. He died on 27.8.1945. Manpher Singh son of Dashrath Singh son of the common ancestor Subransingh filed a suit for cancellation of the will in which Smt.Janak Dulari widow of Manraj Singh and her grandson Reguhvir Singh (son of Narbadia) were both made parties. That suit ended in a compromise and a decree was passed in terms of the compromise and a decree was passed in terms of the compromise deed (ex-P-3) on 2.8.47. Clause Nos. 1 and 2 of the compromise decree read as follows:- "1. That as till her life time as Hindu widow per terms of will dated 23.7.1946 executed by Manraj in favour of Raghubar Singh Mst. Janak Dulari will remain in own....
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.... of the estate of Manraj Singh and that the compromise decree (ex-P-3) had conceded ownership of the land to her in recognition of that right. It was claimed that Smt. Janak Dulari had become an absolute owner of that land by virtue of Section 14(1) of the Act and was, therefore, fully competent to transfer that land through sale deeds Exs. D-13 and D-14 and that those alienations could not be challenged by the plaintiffs after her death. It was further pleaded that after the death of Smt. janak Dulari, the land devolved on Raghubir Singh in accordance with the terms of the will of Manraj Singh (Ex.D- 5) and, therefore, the right of Raghubir Singh over the suit property, as its owner was beyond doubt. The right of the plaintiffs to claim ownership and possession of the suit land was denied. The Trial Court framed a number of issues and ultimately after recording evidence dismissed the suit. The Trial Court held that Smt. Janak Dulari had been given life interest in the property of her husband through the will and that right was her pre-existing right and after the coming into force of the Hindu Succession Act in 1956, Smt. janak Dulari acquired absolute right over that property ....
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....tion placed by the appellants on the terms of the Will (Ex.D-5) as well as the compromise decree and rejected the plea that Mst. Janak Dulari had acquired the property of her deceased husband in lieu of her right of maintenance. According to the learned singh died, Smt. Janak Dulari acquired no pre-existing right, which could mature into full ownership after the coming into force of the Act in 1956. In the words of the learned single Judge: "I am, therefore, of opinion that Janak Dulari was allowed to remain in possession and enjoy the property under the will Ex.D-5 and that the same right was reiterated by the compromise decree Ex.P/3 and not in lieu of any pre-existing right of maintenance. That being so, she never became the full owner of the estate and her case would be governed by sub-section (2) of Section 14 and not by sub-section (1) thereof. She was, therefore, not competent to transfer the lands to the appellants and those transfers, therefore, do not bind the plaintiffs after the death of Janak Dulari." After holding that the civil court had jurisdiction to try the suit and that the challenge made on the basis of Section 37 of the V.P. Abolition of Jagirs and Land ....
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....e reproduce that portion of the will in the vernacular, the language in which the will was written: "Jab tak ham apney dharam patni Samet jiwit hain tab tak kul jaidad kula wa gair Mankula men hamara pura Adhikar Kayam Rahega bad Khatama ham logon ki jindgi key tumhara Adhikar Kul Jaidad Kula we gair mankula me hamarey Adhikar ki tarah par hoga bas yeg Bakshishnamah likh diya ki sanad rahey wakata par kam Awey." Clause (1) of the compromise decree (Ex.P.3.) dated 2.8.1947 reads:- "1. That as till her life time as Hindu widow per terms of Will dated 23.7.1946 executed by Manraj in favour of Raghubar Singh Mst. Janak Dulari will remain in ownership and possession." The main issue on which learned counsel for the parties have addressed their arguments revolves around the interpretation of Section 14 of the Act which reads: "14.(1) Any property possessed by a female Hindu, whether acquire 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 subsection, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in....
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....ndu husband towards the maintenance of his wife both during his life time and after his death?' According to the old Shastric Hindu Law, marriage between two Hindus is a sacrament - a religious ceremony which results in a sacred and a wholly union of man and wife by virtue of which the wife becomes a part and parcel of the body of the husband. She is, therefore, called Ardhangani. It is on account of this status of a Hindu wife, under the Shastric Hindu law, that a husband was held to be under a personal obligation to maintain his wife and where he dies, possessed of properties, then his widow was entitled, as of right, to be maintained out of those properties. The right of a Hindu widow to be maintained out of the properties of her deceased husband is, thus, a spiritual and moral right, which flows from the spiritual and temporal relationship of husband and wife, though the right is available only so long as the wife continues to remain chaste and does not remarry. Mulla in his classic work on "Hindu Law", 14th Edu., dealing with the characteristic of the right of maintenance of a Hindu wife observes:- "A wife is entitled to be maintained by her husband, whether he posses....
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....cession Act, 1956 and particularly the provisions of Section 14 of the Act, is contained in a three Judge Bench judgment of this court in V Tulasamma and others vs. Sesha Reddy (Dead) by L.Rs., (1977) 3 SCC 99. dealing with the provisions of the Hindu Succession Act, 1956, this Court in V.Tulasmma and other vs. Sesha Reddy (Dead) by L.Rs., (supra) observed:- "The Act is a codifying enactment, and has made far-reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate......" Fazal Ali, J in his exhaustive judgment, dealing with the question of the pre-existing right of a Hindu widow laid down: "Thus on a careful consideration and detailed analysis of the authorities mentioned above and the Shastric Hindu Law on the subject, the following propositions emerge with respect to the incidents 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,....
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....e 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 socioeconomic ends sought to be achieved by this long-needed legislation. 2. 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. 3. Sub-section (2) of Section 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 pre-existing rights. In such cases are stricted 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 preexisting right, such as a claim to maintenance or partition or share to which the female is....
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....ising such a right does not confer any new title but merely endorses or confirms the preexisting rights. Accordingly, we hold that the right to maintenance of a Hindu female flows from the social and temporal relationship between the husband and the wife and that right in the case f a widow is "a pre-existing right", which existed under the Shastric Hindu Law long before the passing of the 1937 or the 1946 Acts. Those acts merely recognised the position as was existing under the Shastric Hindu Law and gave it a "statutory" backing. Where a Hindu widow is in possession of the property of her husband, she has a right to be maintained out of it and she is entitled to retain the possession of that property in lieu of her right to maintenance. Explaining the meaning of the expression "possessed" as used by the legislature in Section 14(1) of the 1956 Act in Tulasamma's case (supra) this court held: "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 preli....
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....led to possession of the suit property, being reversioners of Manraj Singh. According to them her case was governed by Section 14 (2) of the Act. The case of the defendants on the other hand was that in the will itself, it was recognised that smt. Janak Dulari would remain in possession of the suit property as its owner and this position was accepted in the compromise decree as well and as such her "ownership and possession" of suit property was protected by Section 14(1) of the Act. While dismissing the suit, the Trial Court opined that Smt. Janak Dulari had become an absolute owner of the suit property by virtue of Section 14(1) of the Hindu succession Act and, therefore she could legitimately alienate the property in favour of the defendants and that plaintiffs could make no challenge to it after her death. Learned counsel for the parties have reiterated the stand of their respective clients before us also. With a view to appreciate the rival stand of the parties, it is appropriate to find out the intention of the testator when he executed the Will on 23.6.(7).1946 and the effect of the compromise decree. We have referred to the relevant clauses of the Will as also clauses 1 ....
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....the expression "till myself along with my wife are alive we shall have full control over all our property movable and immovable" as owners unmistakably shows that the rights which Smt. Janak Dulari was declared to possess during her life time were the same as those of the testator himself and that she was to remain in "full control over all the property movable and immovable" during her life time as an owner of the property. After the death of her husband, she continued to remain in possession of the suit property as its owner and she had full right and control over the same. Clause 1 of the Compromise Deed filed in the suit filed by Manpher Singh which reads: per terms of Will dated 23.7.1946 executed by Manraj in favour of Raghubar Singh Mst. Janak Dulari will remain in ownership and possession." (Emphasis ours) lends support to the interpretation which we have placed on the Will. It recognises her right to remain in "ownership and possession" of the suit property. The terms of the Will and the compromise decree thus unmistakably show that Smt. Janak Dulari had the "ownership and possession of the suit property" till her death and (even if it be assumed to be her "limite....