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Basant Kumar v/s Indra Sen

    F. A. No. 243 of 1997

    Decided On, 25 November 2010

    At, High Court of Madhya Pradesh

    By, THE HONOURABLE MR. JUSTICE G. S. SOLANKI

    For the Appearing Parties: Divesh Jain, Arun Choubey, Advocates.



Judgment Text

(1.) Being aggrieved by the judgment and decree date 5th April, 1997 passed by Second Additional Judge to the Court of District Judge, Hoshangabad in Civil Suit No. 9-A/1982, plaintiff/ appellant has preferred this appeal under section 96 of the Code of Civil Procedure.

(2.) It is undisputed that Respondents No. 1 and 7 were died during the trial before lower Court. Their respective legal representatives were brought on record. It is also undisputed that respondents No. 4, 5 and 6 remained absent after filing their written - statements, therefore, trial Court had proceeded ex parte against them. Respondent No. 8, State of Madhya Pradesh was formal party remained absent, trial Court had also proceeded ex parte against it. It is also undisputed that genealogy of Moolchand, husband of Baijanti Bai (predecessor in title of plaintiff/ appellant) is as follows :- _Mannulal (died on 1910)_ Moolchand Balmukund (died on 1922) (died on 1968) BaijantiBai Indrasen Chandrasen Laljit Prasad Keshribai Bhagwatibai It is also undisputed that Balmukund had executed a Gift deed Ex. D/1 in favour of Baijantibai in the year 1960.

(3.) Plaintiff /appellant Basant Kumar had filed a suit against defendant / respondent for declaration and permanent injunction of disputed land as mentioned in plaint of para No. 1. According to him, Baijantibai, widow of Moolchand, executed a registered gift deed of disputed land on 3-11-1980 (Ex. P/1). Since then plaintiff has possession over the disputed land. Disputed land was mutated in the name of plaintiff. According to plaintiff/ appellant, defendant/ respondent has no right, title or interest in the disputed land but on 2-7-1982 defendants/respondents 1 to 7 had interfered in the possession of plaintiff/ appellant, therefore, he

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filed the suit before the trial Court.(4.) Defendants / respondents No. 1 to 7 denied the fact regarding execution of Gift deed in favour of plaintiff/appellant on 3-11-1980. According to them, Moolchand, husband of Baijantibai, had died in the year 1922 and his right, title or interest of the property devolve into defendant/respondent by way of principle of reversion. At that time Baijantibai had not acquired any right, title or interest in the disputed land. They further pleaded that Balmukund, father of respondent, executed gift deed in favour of Baijantibai Ex. D/l on 26-7-1960 with a condition that Baijantibai has a limited right of maintenance in the disputed land and she was restrained to alienate the disputed property, therefore, Baijantibai has no right to execute the Gift deed in favour of plaintiff/ appellant.(5.) It is also pleaded that on 3-11-1980, Baijantibai was aged of 80 years. She was unable to understand the recital of document and Munshilal, father of appellant, taken her in active confidence and Gift deed dated 3-11-1980 got executed by playing fraud on her. In these circumstances, Gift deed Ex. P/l is void and effectiveless, thereby no title, interest has passed, in favour of plaintiff/ appellant. On the basis of aforesaid pleadings respondent prays for dismissal of suit.(6.) On appraisal of evidence on record, trial Court dismissed the suit of plaintiff / appellant. Being aggrieved, this appeal has been filed by the plaintiff/ appellant under section 96 of Code of Civil Procedure.(7.) Learned counsel for the plaintiff/ appellant submitted that trial Court committed error in not appreciating the evidence on record, in its proper perspective. He further contended that trial Court committed error in holding that Baijantibai had no right, title or interest in the disputed land. He further contended that the case of Baijantibai will govern by section 14(1) and explanation and not by section 14(2) of Hindu Succession Act (hereinafter referred to 'The Act'). After coming into the force of Hindu Succession Act, 1956 she acquired an absolute right in the disputed property and that absolute right cannot be limited by any deed.(8.) On the contrary, learned counsel for the respondent No. 2 submitted that trial Court was right in holding that after the death of Moolchand, the entire property including disputed land was devolved by the principle of reversions and after the death of Balmukund in 1968, defendants/respondents become title holder. Baijantibai had only limited right for maintenance in the disputed land through gift deed Ex. D/1. In this way, he justified and supported the impugned judgment and decree and prays for dismissal of the appeal.(9.) I have heard the learned counsel for the parties and perused the impugned judgment and the evidence and other material on record.(10.) The main controversy between the parties hinges on the facts that Baijantibai had acquired absolute right in the disputed property or she had only limited right of maintenance. In other words case of Baijantibai is governed by section 14(1) and explanation thereof or by section 14(2) of the Hindu Succession Act, 1956?(11.) It is undisputed that Moolchand, husband of Baijantibai, died in the year 1922 before coming into force of Hindu Womens' Right to Property Act, 1937. On this fact defendant Chandra Sen (DW2) deposed that after the death of Moolchand, his father Balmukund was in possession of the whole ancestral property. He further deposed that Baijantibai had no right, interest or title in the property. She had only right to maintenance which was executed through Ex. D/l, executed by Balmukund.(12.) Ramesh Chandra Sharma (DW-1) proved the registration of Ex. D/l.(13.) On the strength of aforementioned evidence, learned counsel for the respondents contended that Moolchand, husband of Baijantibai, was died before the enactment of Womens' Right to Property Act, 1937 applies only to separate property left by a Hindu Male. It does not apply to co-parcenary property. He places reliance on Shyamlal vs. Amar Nath, AIR 1970 SC 1643.(14.) On the other hand, learned counsel for the appellant submitted that Baijantibai had pre-existing right of maintenance in the property of her husband and afterward same was recognized by his brother-in-law Balmukund by executed Ex. D/l Gift Deed in her favour. Therefore, she became absolute owner of the disputed property. He further contended that this absolute right cannot be restricted by any deed. He relied on Vaddeboyina Tulasamma and ors. vs. Vaddeboyina Sesha Reddi, AIR 1977 SC 1944.(15.) It is true that Moolchand had died on 1922 thus, succession opened in 1922 and the benefit of Hindu Womens' Right to Property Act, 1937 was not available to Smt. Baijantibai but even then Baijantibai being a widow of late Moolchand, who had share in co-parcenary immovable property clearly had a right of maintenance out of the property of her late husband. Please see section 559(1) of Principles of Hindu Law by Mulla which read as follows :- (i) A widow, who does not succeed to the estate of her husband as his heir, is entitled to maintenance - (ii) out of her husband's separate property, (iii) out of the property in which he was a co-parcener at the time of his death. Under old Hindu Law the widow had at least a right to maintenance out of her husband's estate whether such estate was in the hands of his male issue or in the hands of his co-parceners. The co-parceners in possession of such estate was liable to maintain the widow "not because he was under an obligation to maintain her but he has in his hands her husband's estate". Thus, obviously, even if Smt. Baijantibai did not succeed as a heir to her husband, she had a right to maintenance out of the property of her husband which was in the hands of Balmukund, father of the respondents, who afterward had executed a Gift Deed Ex. D/1 in her favour.(16.) Gift Deed Ex. D/l is undisputed document. Learned Counsel for the respondent contended on the basis of note written in the document as to the effect that Baijantibai has no right to sale, alienate, gift or mortgage the disputed land. In this way, Baijantibai was granted a limited right by Ex.D/1.(17.) On the contrary, learned counsel for the appellant contended that an absolute right was given by Ex. D/l. He referred the first part of the document in which it is written that Baijantibai got possession of the property as owner thereof.(18.) Section 14 of the Hindu Succession Act, 1956 read as follows:"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 device, 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 the sub-section (1) shall apply to any property acquired by way of gift or under a Will or any other instrument or under 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 prescribed a restricted estate in such property." Analysis of this provision would show that female Hindu would become a full owner in case (1) she is in possession of property (2) whether the same is acquired before or after the commencement of Act. The provision has a under explanation "property" includes both movable and immovable property and mode of acquisition is also very widely defined including (1) by inheritance, (2) by device, (3) at a partition, (4) in lieu of maintenance or arrears of maintenance, (5) by gift by any person whether relative or not, before at or after her marriage, (6) by her own skill or exertion, (7) by purchase, (8) by prescription and (9) by any other manner whatsoever, and also any such property held by her as 'stridhana' immediately before the commencement of the Act. Obviously, sub-section (2) is a proviso to sub-section (1) and is applicable only when any property is acquired under some instrument like gift, Will or other instrument or decree, order or award of the Court which prescribes a restriction by its own terms. However, in cases where such a female has 'any pre-existing right' to hold the property otherwise than under such an instrument, section 14 (2) is not applicable."(19.) In Vaddeboyina Tulasamma's case (supra) Hon'ble Apex Court elaborately discussed the applicability of sub-clauses (1) and (2) of section 14 of Hindu Succession Act that a Hindu widow has a pre-existing right of maintenance as an heir of her husband in the property left by her husband and if any instrument executed afterward in her favour in which her right shown as limited right. In that circumstances, the property given to her was in recognization of her pre-existing right, and not as a new right created for first time. Same position is in the case in hand. In this case Balmukund, father of respondent, executed gift deed Ex. D/l and gave possession of the disputed property, in lieu of her right of maintenance. In these circumstances, although Ex. D/1 gave a restricted right to Baijantibai in the property, but due to the preexisting right of maintenance in the property of her husband, this document only recognizes her pre-existing right in the property. In other words no new right, title or interest was created by Ex. D/l. In these circumstances sub-clause (2) of section 14 of Hindu Succession Act will not applicable in this case.(20.) As far as possession of the Baijantibai is concerned, as discussed hereinabove Baijantibai had pre-existing right in the co-parcenary property. In these circumstances, she was in joint possession with her brother-in-law Balmukund before executing of Ex. D/l and after execution of Ex. D/l, she acquired absolute possession on the disputed property. In these circumstances possession of a share of her husband in the joint family property in lieu of maintenance is sufficient to apply the provision of sub-clause (1) of section 14 of the Hindu Succession Act. For the applicability of the provisions, two conditions must co-exist namely (1) the concern female Hindu must be in possession of the property and (2) such property must be possessed by her as a limited owner. In this case both the conditions are fulfilled, therefore, Baijantibai became full owner of the property possessed by her at the time of commencement of Hindu Succession Act, 1956.(21.) In above circumstances, the authority cited by learned counsel for the respondent Shyamlal vs. Amar Nath, AIR 1970 SC 1643 is not applicable to the present case because in this case Baijantibai had a pre-existing right of maintenance in the co-parcenary property of her husband Moolchand and ultimately this pre-existing right was recognized in sub-clause (1) of section 14 of Hindu Succession Act, 1956.(22.) Learned Counsel for the appellant contended that Baijantibai being a absolute owner executed a gift deed Ex. P/1 dated 3-11-1980 in favour of appellant Basant Kumar, therefore, Basant Kumar became the owner of disputed property.(23.) Learned counsel for the respondent contended that Baijantibai was an old woman. She was not in fit mental condition to execute the gift deed, therefore, Ex. P/l is doubtful document. He further contended that execution of Ex. P/1 is also not proved by the appellant.(24.) Basant Kumar (PW1) deposed that Baijantibai had executed the gift deed Ex. P/l in his favour, therefore, he is in possession of the disputed land from the date of execution of Ex. P/1.(25.) Mahesh Kumar Shrivastava (PW4) is a witness of execution of Ex P/l. He categorically stated that at the time of execution of document Baijantibai was healthy and fit to execute the document. Document was written by Munshi Gendalal, who is no more in the world.(26.) Another witness of this document is Thakur Virendra Singh (DW6) appeared on behalf of respondent and deposed that at the time of execution of document Baijantibai was about 85-90 years of age. Her treatment was continued in Hoshangabad Hospital and for execution of the document she was brought from the hospital. She remained unable to explain the disease of Baijantibai and time and date regarding the admission of Baijantibai in Hoshangabad Hospital. On the contrary, he clearly admitted that he signed the document Ex. P/l which was written by Munshi Gendalal. He further admitted that Baijantibai recognized him at the time of execution of document. In these circumstances, execution of Ex. P/l cannot be said to be doubtful though Baijantibai was old aged person but despite old age she was in sound and fit condition to execute the Ex. P/l, therefore trial Court committed error in not appreciating the evidence on record in its proper perspective.(27.) Regarding possession of the disputed property witnesses Sunderlal (PW2) and Hyderbeg (PW3) supported the statement of plaintiff Basant Kumar. It is further supported by Patwari, Sudama Patel (PW5), who proved Kishtbandi Khitoni (Ex. P/l 1) and Khasra Panchsala Exhibits P/12, 13 and 14.(28.) Respondent Chand Sen (DW2) filed Khasra Panchsala of 1979-80 vide Ex.D/13 and 14, the orders of Revenue Courts regarding dispute of mutation Ex.P/11, 12, 15 and 16.(29.) It is well settled principle of law that no right, title or interest can be created by the orders of Revenue Court regarding mutation. Oral evidence of Hyderbeg (PW3) and Sudama Patel (PW5) shows that Sunderlal was in possession of disputed land as Bataidar on behalf of plaintiff/appellant. Defendant Chandsen raised the dispute when crops were harvested by Sunderlal. Sudama Patel, Patwari also admitted that he seen the possession of both the parties on disputed land, then he further stated that he is unable to say that who was in possession of the disputed land. In these circumstances in the year 1981 - 82, there was a dispute regarding the possession of the property and it shows that defendant/respondent tried to dispossessed plaintiff /appellant from the disputed property, therefore, plaintiff/appellant is entitled to get a decree of declaration as well as injunction against the defendant/respondent.(30.) Thus, from the above mentioned discussion, it is proved that Baijantibai had the absolute right in the disputed property and she had executed the gift deed in favour of appellant Basant Kumar, therefore, Basant Kumar became the owner of the disputed property/land and he is entitled to get decree of declaration and injunction against the respondent.(31.) In the result, this appeal is allowed and judgment and decree passed by the trial Court is hereby set aside, and following decree is passed against the respondents :-(i) It is declared that Plaintiff/appellant is the bhumiswami of disputed land i.e., KhasraNos. 2, 3,12,13,4,11,16,18, 19,41,42,43, 332, 335 and 448/14 total Rakba 12.678 Hectare of village Tamcharu, Tehsil and District Hoshangabad. (ii) Defendants/respondents are restrained permanently to interfere in the possession of above mentioned property of plaintiff /appellant. (iii) Respondents shall bear their own cost and cost of the appellant.(32.) Counsel fees as per schedule or as per certificate (whichever is less).(33.) Decree be drawn accordingly. Appeal allowed.
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