1. This second appeal is directed against the impugned judgment and decree dated 23-07-2004 passed by the Second Additional District Judge, Raigarh in Civil Appeal No.66-A/2002, by which, the plaintiff''s appeal against the judgment and decree dated 02-08-2002 passed by the learned trial Court in Civil Suit No.145-A/2002, has been dismissed, affirming the judgment and decree passed by the trial Court.
2. The appellant-plaintiff filed a suit seeking declaration and permanent injunction on the pleadings inter alia that Sudhakar, Padmakar and Bhogilal are sons of common ancestor Lallan Prasad Pandey. Family tree was described in para 2 of the plaint. The plaintiff's case was that the plaintiffs and defendant No.5 (widow of Sudhakar) had ancestral joint family property recorded in the joint account at Village Paraspali, P.H.No.7, Tahsil Kharasiya, District Raigarh and land measuring 1.659 Hectare, Khasra No.164/2 was also part of the family property. Further pleading was that defendant No.5-Triveni Bai illegally sold the land ad-measuring 1.659 Hectare in Khasra No.164/2 without any consideration, being victim of fraudulent transaction and the sale deed registered, showing payment of Rs.18,000/-. According to the plaintiffs, sale of land was done by Triveni Bai without consent and knowledge of the plaintiff, who were the joint holders and co-sharer along with Triveni Bai. Further case was that the sale deed was illegal, inoperative and void.
Purchasers-defendants No.1 to 4 filed their written statement and in order to support the sale transaction, submitted that the property in dispute fell to the share of Triveni Bai, after partition of the family property.
Triveni Bai had filed written statement, in which, she came out with the pleading that by taking undue advantage of the family dispute, father of defendants No.1 to 4-namely Nakul Sahu, who had given money to the defendant No.5 from time to time, got the lands registered in the name of their sons-defendants No.1 to 4 by fraudulent transaction and neither defendants No.1 to 4 nor their father paid Rs.18,000/- to Triveni Bai. According to her, price of the land was Rs.20,000/-, at the time, when transaction had taken place.
3. She, however, remained ex-parte during trial and on the basis of pleadings of the parties, learned trial Court framed following issues:-
Upon consideration of oral and documentary evidence led by the parties, learned trial Court recorded a finding that Triveni Bai had acquired absolute ownership in the joint family property, after enactment of the Hindu Succession Act, 1956, and further that the partition had taken place and in the partition, disputed land fell to the share of Triveni Bai, was validly sold by her to the defendants No.1 to 4.
On appeal being preferred, the learned lower appellate Court recorded concurrent finding that the trial Court, on all aspects including right of the defendants No.5-Triveni Bai as also with regard to partition, recorded correct finding.
4. This appeal was admitted for hearing on following substantial question of law:-
“Whether both the Courts below were justified in holding that defendant No.5-Triveni Bai was empowered to alienate the suit property vide sale deed dated 08-01-1986 in favour of defendants No.1 to 4 by recording a finding which is perverse and contrary to record?”
5. Assailing legality and validity of the impugned judgment and decree passed by the Court below, learned counsel for the appellant argued that the Courts below have recorded a perverse finding ignoring that Triveni Bai had no right or title to dispose off the property in dispute. He would argue that Triveni Bai was the widow of Sudhakar Prasad Pandey. Sudhakar, Padmakar and Bhogilal were sons of common ancestor Lallan Prasad Pandey. He argued that Mr. Sudhakar died in the year 1947, the share of Lallan Prasad Pandey, which was part of the ancestral property, devolved upon surviving co-parceners- Padmakar and Bhogilal. Triveni Bai did not get any right by way of inheritance. According to Shashtrik Hindu Law, after enactment of Hindu Succession Act, 1956, Triveni Bai was entitled to limited estate in the property of her husband for the limited purpose of her maintenance and nothing more. Later on, Neelmani was adopted in the year 1960 by Triveni Bai. Plaintiffs No.1 to 8, who were sons of Neelmani Pandey, became joint owner of the property along with Triveni Bai. Padmakar and other brother were also entitled to share in the property. The property remained unpartitioned and joint in the accounts and cultivation amongst the parties. Triveni Bai, therefore, had no title to sell the property, as she had limited interest in the property to maintain herself and the so-called partition, as claimed by Triveni Bai, would not give her any title in the property beyond her right of maintenance. Learned counsel for the appellant also submits that even if it is accepted that Triveni Bai had right and title and she was entitled to sell the property, her undivided share alone could be disposed off by her by any mode of transfer including sale. Out of 1.659 Hectare of land, which were sold by Triveni Bai in favour of defendants No.1 to 4 vide registered sale deed dated 08-01-1986, defendants No.1 to 4 at the most, could claim partition to the extent of one third of that property as being undivided share of Late Triveni Bai. The Courts below wrongly held Triveni Bai to be absolute owner and wrongly recorded a finding with regard to partition and dismissed the plaintiff's suit. In support of his submission, learned counsel for the appellant has relied upon the judgment in the case of Ramdayal vs. Manaklal 1973 JLJ 764.
6. Per contra, learned counsel for the respondents would argue that the Courts below have recorded a concurrent finding not only with regard to absolute title of Triveni Bai, defendant No.5, but also with regard to aspect of partition. Relying upon other judicial pronouncement of the Supreme Court in the case of Chhabil Das vs. Pappu (2006) 12 SCC 41 and Jupudy Pardha Sarathy vs. Pentapati Rama Krishna and others (2016) 2 SCC 56, it has been argued that the limited estate, which Triveni Bai, being widow of Sudhakar, was enjoying, ripened into absolute estate as per Section 14 of the Hindu Succession Act, 1956, because, at that time, no adoption had taken place. Adoption of Neelmani by Triveni Bai had taken place only in the year 1960. That adoption would not result in divesting Triveni Bai any title in the property, to which, she had become absolute owner, after commencement of the Hindu Succession Act. In support of her submission, learned counsel for respondents has placed reliance on decision in the case of Dina Ji and others vs. Daddi and others AIR 1990 SC 1153.
7. I have heard learned counsel for the parties and perused the records.
8. Plaintiff's pleading are that the plaintiffs and defendant No.5-Triveni Bai are joint holder of the property ad-measuring 1.659 Hectare situated in Khasra No.164/2. Pleadings are that the sale deed is incapable of passing any title in favour of defendants No.1 to 4 as sale of joint family property was made without consent and notice of the other joint holders/Khatedar. In the entire pleading, the plaintiffs have not come out with the case that Triveni Bai has no title as joint holder of the property. According to the plaintiffs, Triveni Bai was one of the cosharer in the property. In the written statement filed by Triveni Bai, defence has been taken that the sale deed was got executed by fraudulent means and no sale consideration was paid to her.
It would, thus, be seen that the plaintiffs have not raised any dispute with regard to title or ownership of Triveni Bai in the joint family property. There case has been that Triveni Bai could not sell her undivided share without consent and notice of other co-sharer/joint holders
9. The submission that Triveni Bai was having only limited estate in the joint family property, not absolute ownership, to maintain herself, but no right to sell the property as owner thereof, is liable to be rejected, in view of well settled legal position as authoritatively pronounced by the Supreme Court in plethora of decisions.
10. In one of its earliest decision on the issue regarding consequence flowing in view of Section 14 of the Hindu Succession Act, 1956, in the case of V. Tulasamma v. Sesha Reddy (1977) 3 SCC 99, the Supreme Court held as below:-
62. We would now like to summarise the legal conclusions which we have reached after an exhaustive considerations of the authorities mentioned above on the question of law involved in this appeal as to the interpretation of Section 14(1) and (2) of the Act of 1956. These conclusions may be 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 starting from Yajnavalkya to Manu. Such a right 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(1) 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 s. 14 is in the nature of a proviso and has a field of its own without interfering with the operation of s. 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 s. 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 s. 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 s. 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- s. (2) and would be governed by s. 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 s. 14(1) clearly makes sub-s. (2) inapplicable to these catego- ries which have been expressly excepted from the operation of sub-s. (2).
(6) The words "possessed by" used by the Legislature in s. 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 s. 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 with- out any right or title.
(7) That the words "restricted estate" used in s. 4(2) are wider than limited interest as indicated in s. 14(1) and they include not only limited interest, but also. any other kind of limitation that may be placed on the transferee.”
11. In view of aforesaid decisions, it is clear that the limited estate, which Hindu women are enjoying and which was statutorily recognized under Hindu Married Women's Right to Separate Maintenance and Residence Act, 1946, ripened into absolute ownership, in view of the provision contained in Section 14 of the Hindu Succession Act. The said legal position, as laid down in the case of V. Tulasamma (supra) was reiterated by the Supreme Court in the subsequent decisions, which were noted in the case of Chandrika Singh (Dead) by Lrs. and another vs. Sarjug Singh and Another (2006) 12 SCC 49.
12. In the case of Raghubar Singh and Others vs. Gulab Singh and Others7, the statement of law in this regard was in following terms:-
"17. The obligations, under the Shastric Hindu Law, to maintain a Hindu widow out of the properties of her deceased husband received a statutory recognition with the coming into force of the Hindu Women's Rights to Property Act, 1937. the law on the subject was, thereafter, consolidated and codified by the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 which came into force on 23.4.1946. The right to maintenance of the Hindu widow, as a Pre-existing right, was thus recognised by the two statutes referred to above but it was not created for the first time by any of those statutes. Her right to maintenance exited under the Shastric Hindu law long before statutory enactments came into force. After the attainment of independence, the need for emancipation of women from feudal bondage because even more imperative. There was growing agitation by Hindu women for enlargement of their rights as provided by the Shastric Hindu law in various spheres. It was at this juncture that Parliament stepped in and enacted various statutes like the Hindu Marriage Act, 1956 the Hindu Adoption and Maintenance Act, 1956 and the Hindu Succession Act, 1956 providing for intestate succession.
18. The Hindu Succession Act, 1936 made far-reaching charges in the structure of Hindu law by removing the traditional limitations on the powers of a Hindu widow to deal with the property of her deceased husband in her possession in lieu of her right to maintenance and the Act made her an absolute owner of the property, over which hitherto fore, she had only a limited right."
It was further held:
"24.....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 that right in the case of a widow is `a pre-existing right ", which existed under the Shastric Hindu Law 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 widows 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."
13. In another decision in the case of Shakuntala Devi vs. Kamla8, the aforesaid legal position was reiterated by the Supreme Court.
The settled legal position was succinctly stated and re-stated in subsequent decision of the Supreme Court in the case of Chandrika Singh (Dead) by Lrs. (supra) and Jupudy Pardha Sarathy (supra). In these decisions also, earlier legal position, as stated in the case of V. Tulasamma 7 (1998) 6 SCC 314 8 (2005) 5 SCC 390 (supra) was followed.
14. In view of the aforesaid settled legal position, it is clear that the limited estate, which Triveni Bai was enjoying, after death of her husband-Sudhakar, who died in the year 1947, upon commencement of Hindu Succession Act, 1956, ripened into absolute ownership under Section 14 of the Hindu Succession Act.
15. The next question, which arises for consideration in this case is that what would be the effect of Triveni Bai had adopting Neelmani, who is the father of defendants No.1 to 8. It is undisputed position on record that Triveni Bai had adopted Neelmani in the year 1960. That means, much after Triveni Bai became absolute owner of the limited estate of her husband, upon commencement of the Hindu Succession Act, 1956. The provision contained in Section 13 of the Hindu Adoption and Maintenance Act, 1956, provides that subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will.
The aforesaid provision came up for consideration before the Supreme Court in the case of Dina Ji (supra), in which, Their Lordships interpreted the provision, as below:-
7. “Proviso (c) of this Section departs from the Hindu General Law and makes it clear that the adopted child shall not divest any person of any estate which has vested in him or her before the adoption. It is clear that in the prsent case, Smt. Yashoda Bai, who was the limited owner of the property after the death of her hsuband and after Hindu Succession Act came into force, has become an absoloute owner
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and therefore the property of her husband vested in her and therefore merely by adopti9ng a child she could not be deprived of any of her rights in the property. The adoption would come into play and the adopted child could get the rights for which he is entitled after her death as is clear from the Scheme of Section 12 proviso (C)”. Therefore, it is clear in law that upon adoption, Neelmani did not acquire any interest in the property, which were held by Triveni Bai in her absolute ownership. Neelmani being adopted son, would get interest in the property only by way of inheritance, after death of Triveni Bai, but during life time of Triveni Bai, Neelmani or after his death, his sons could not claim any interest in the property held by Triveni Bai in absolute ownership. 16. As far as the factum of partition is concerned, the Courts below have recorded a concurrent finding in this regard that partition had taken place and relying upon settled legal position, after commencement of Hindu Succession Act, 1956, Triveni Bai had become absolute owner of the property of her husband. It has also been held that parts of the property were disposed off to different persons. Therefore, it has to be held that Triveni Bai had absolute right to alienate her property which fell to her share. The sale of 1.659 Hectare of land in Khasra No.164/2 by Triveni Bai are within her right and title and it could not be assailed by the plaintiffs on the ground that either she had no authority as title holder or on the ground that she was co-sharer and it remained unpartitioned and joint family property. 17. In view of above, the question of law framed by this Court is answered in favour of the respondents-defendants and against the appellants-plaintiffs that Triveni Bai had right and authority to alienate the property in dispute. 8. In the result, the appeal fails and is hereby dismissed. Parties to bear their respective costs. Let appellate decree be accordingly drawn.