Second Appeal No.539 of 2004

24th September, 2008

Petitioner Counsel: Mr. A. V. ANTURKAR , Mr. S. S. SAYYED,Mr. A. A. JOSHI , Mr. ALOK SINGH,M/s. ABG , Associates
Respondent Counsel: Mr. I. S. THAKUR

Cases Cited:
Anandibai Bhaskar Nilkanth Vs. Narayan Dhonddev Tattoo, A.I.R. 1915 Bombay 63 [Para 13]
Mangal Singh Vs. Smt. Rattno (dead) by her LRs., AIR 1967 SC 1786 [Para 14]
V. Tulasamma Vs. Vaddeboyina Sesha Reddi (dead) by L.Rs., AIR 1977 SC 1944 [Para 14]
Bai Vajia (dead) by LRs. Vs. Thakorbhai Chelabhai, AIR 1979 SC 993 [Para 14]
Mangat Mal (dead) Vs. Smt. Punni Devi (dead), AIR 1996 SC 172 [Para 14]
Jagannathan Pillai Vs. Kunjithapadam Pillai, AIR 1987 SC 1493 [Para 14]
Ram Vishal (Dead) by LRs. Vs. Jagan Nath, (2004)9 SCC 302 [Para 15]

JUDGMENT

JUDGMENT :- The appeal is filed by the original defendant challenging the judgment and order passed by the learned Joint District Judge, Thane in Civil Appeal No.10 of 2004, whereby the said appeal was allowed, setting aside the dismissal of the regular civil suit no.220 of 2000 by the learned Vth Joint Civil Judge, Junior Division, Thane.

2. To state in brief, the plaintiff/respondent Moreshwar and the deceased defendant/appellant Jamunabai were the real brother and sister. Jamunabai died pending the second appeal and her legal representatives were brought on record. One Mukund Bhoir was their father and Gangabai was their mother. Suit property bearing Survey No.658, Hissa No.3 corresponding to new Survey No.251, Hissa No.3 situated at Village: Bhayander, Taluka & District: Thane was admittedly owned by Mukund, father of the parties. According to the plaintiff, their parents were married in or about 1928 and the defendant Jamunabai was born sometimes in the year 1932. Plaintiff was born on 20th June, 1935. Their father Mukund died intestate sometimes in 1936 leaving behind his widow, daughter and son as the only legal heirs. In 1945 defendant married. At the time of death of their father, plaintiff was infant and was under the guardianship of his mother Gangabai. Under the Hindu Law as prevailing at that time, the plaintiff became exclusive owner of the property left behind by his father. Defendant had no legal right of inheritance. Their mother Gangabai was entitled only to maintenance out of the property of her husband. She had also no right of inheritance or share in the property. Their mother Gangabai died on 10-10-1990. According to the plaintiff, after death of the mother, the defendant approached the revenue authority and got her name entered as shareholder in the property. Plaintiff raised objection and also preferred appeal but without success. Therefore, the plaintiff filed suit for declaration of his exclusive title over the suit property and for perpetual injunction restraining the defendant from causing any interference in his possession over the suit property.

3. The defendant contested suit by filing written statement. She admitted relationship between the parties. According to her, suit property was ancestral property in the hands of their father Mukund as he had inherited the same from his father. It is denied that their parents were married in 1928. According to her, they were married in 1932. According to her, their father died in 1939 and not in 1936 as pleaded by the plaintiff. It is also contended that she herself was aged about 6 years at the time of death of the father. According to her, plaintiff himself was born in 1938. After death of their father, their mother had equal right in the property alongwith the plaintiff and she had become absolute owner to the extent of half share in the property. After her death, defendant is entitled to right of inheritance in that property. It is contended that land was being actually cultivated by Bhalchandra, who was husband of the defendant and after his death, land was being cultivated jointly by the plaintiff and the defendant. The plaintiff can not claim exclusive ownership over the property. Mutation entry has been rightly taken in the revenue record showing the plaintiff and the defendant as the owners. Therefore, she contended that the suit is liable to be dismissed.

4. Several issues were framed by the learned trial Court. The learned Trial Court came to conclusion that the plaintiff was born prior to 1937 and also their father had died prior to 1937. However, the learned trial Court came to conclusion that the plaintiff is not exclusive owner of the suit property nor he is in exclusive possession of the same. According to the learned trial Court, Gangabai mother of the parties was in possession of the property on the basis of right of maintenance and in view of the provisions of Section 14(1) of the Hindu Succession Act, she had become absolute owner of the property. The learned trial Court opined that in view of this after death of the mother, defendant is entitled to share in the property. With these findings, suit came to be dismissed.

5. Plaintiff preferred regular civil appeal no.10 of 2004. The learned Lower Appellate Court noted that the learned counsel for the defendant had fairly conceded that the evidence on record could not come to her rescue to suggest that their father Mukund had died after 1937. The learned Appellate Court also agreed with the findings of the trial Court that their father Mukund had died prior to 1937. Having come to this conclusion, the learned Appellate Court found that even though their mother Gangabai was entitled to maintain from that property, she had never acquired nor possessed that property and, therefore, she could not claim to have become absolute owner of the property under Section 14(1) of the Hindu Succession Act, 1956. The learned Appellate Court came to conclusion that the plaintiff alone was exclusive owner of the suit property since the time of death of his father and the defendant does not get any right, title or interest in the suit property. In the result, appeal was allowed. Judgment and decree passed by the trial Court came to be set aside. The suit filed by the plaintiff was decreed. Being aggrieved by the said judgment of the Appellate Court, the defendant has preferred the second appeal.

6. The appeal was admitted observing that substantial questions of law are raised in ground nos.12, 15 and 18 in the appeal memo. These grounds read as follows :

"12) The Lower Appellate Court erred in holding that Mukund Jagu Bhoir died prior to 1937. In this connection, the Appellant/Defendant submit that there was no any documentary evidence before the Trial Court that the said Shri. Mukund Jagu Bhoir died prior to 1937. However, the advocate of the Appellant/Defendant had fairly conceded before the Ld. Lower Appellate Court that there was no any documentary evidence to show the date of death of late Shri. Mukund Bhoir. However, the Ld. Lower Appellate Court has taken a different meaning of the said statement made by the Advocate of the Appellant/Defendant during the course of argument of the said appeal.

15) The Lower Appellate Court had given much importance to the provisions of Hindu Womens Right to Properties Act, 1937. In this connection, the Appellant/Defendant submit that the said Act has become redundant by virtue of enactment of Hindu Succession Act, 1956 and not only that the said fact has been elaborately discussed by the Hon'ble Supreme Court, in a judgment reported in AIR 1977 Supreme Court, 1944. However, the Ld. Lower Court failed to appreciate the said legal provisions and without considering the said legal provisions, the Ld. Lower Court was pleased to hold that late Smt. Gangabai Mukund Bhoir had not inherited any rights in the suit properties by giving much reliance to the uncodified Hindu Law and also the provisions of Hindu Womens Right to Properties Act, 1937, when in fact, the provisions of Hindu Succession Act overrides the provisions of uncodified Hindu Law and the provisions of Hindu Womens Right to Properties Act, 1937. Hence, the findings given by the Ld. Lower Appellate Court are contrary to the provisions of Hindu Succession Act.

18) The Lower Appellate Court ought to have held that right of maintenance of Hindu Women was pre-existing rights, which flows from the Shastric Law. However, the Ld. Lower Appellate Court failed to appreciate the law interpreted by the Hon'ble Supreme Court in Judgment Reported in AIR-1977, Supreme Court, 1944 and Judgment reported in AIR-1998, Supreme Court, 2401. The Appellant/Defendant further submit that the facts involved in the said Judgment Reported in AIR-1977, Supreme Court, 1944 and Judgment reported in AIR-1998, Supreme Court, 2401, are identical to the facts involved in the present matter. However, the Ld. Lower Appellate Court had wrongly interpreted the provisions of law enunciated in the said Judgments, which resulted into miscarriage of justice."

7. Heard the learned counsel for the Parties. From the ground no.12, it appears that defendant/appellant has challenged the concurrent findings of both the Courts below that their father had died prior to 1937. Infact, when the concurrent finding of the fact is there, it does not present any substantial question of law. However, date of death of their father is relevant only to find out whether their mother Gangabai would be entitled to share in the property equal to her son, i.e. plaintiff under Hindu Women's Rights to Property Act, 1937 and if so whether the limited estate has been converted into absolute ownership by virtue of Section 14(1) of the Hindu Succession Act, 1956. Undoubtedly, if their father had expired prior to 14-4-1937, when the Hindu Women's Rights to Property Act had come into force, their mother Gangabai could not claim any right to the property under that Act. Grounds 15 and 18 present another question. If their father had expired before 1937, what would be rights of their mother. According to the learned counsel for the defendant/appellant, their mother was entitled to be maintained and that was the pre-existing right. She was in possession of the suit property alongwith her son and she used to exercise her right of ownership and as she was in occupation and possession of the suit property on the basis of the right of maintenance. When Hindu Succession Act came into force, she would become absolute owner of the property in view of the provisions of Section 14(1) of Hindu Succession Act. Before the question of law is considered, it will be useful to consider the evidence about the date of death of their father.

8. Plaintiff specifically pleaded that he was born on 20th June, 1935 and in 1936 his father had died. He produced school record supporting his claim. In the school record, date of his birth is recorded as 20th June, 1935. According to him, defendant was born in 1932 and the age difference between the two was about three years. Defendant pleaded that she was born in 1933 and was aged about 6 years in 1939 when their father died. She also pleaded that plaintiff was born in 1938 and he was aged about six months at the time of death of their father. It appears that both the parties admit that the plaintiff was aged about six months or so when his father died. Question is when the father died. If the date of birth of the plaintiff recorded in the school record is correct, he was born on 20th June, 1935 and a few months after that their father died. Period of death comes to 1936. Evidence on record reveals that on 3rd October, 1945 Gangabai had executed a conditional sale deed in favour of one Nanubai for a period of ten years by registered document. Admittedly, Exhibit 55 is the true copy of that document. In that document, age of plaintiff Moreshwar was shown to be 11 years. Exhibit 56 is the true copy of the reconveyance deed executed by Nanubai in favour of Gangabai and Moreshwar on 4th November, 1950. In that reconveyance deed, age of plaintiff Moreshwar is shown to be 16 years. In view of this, it appears that Moreshwar must have born in 1935 or so. These documents show approximate age and not date of birth. In any case, these two documents provide corroboration to plaintiffs claim and run contrary to the contention of the defendant that plaintiff was born in 1938.

9. P.W.2 Vijay Agarwal was working as salt inspector in the salt department. His evidence reveals that Mukund J. Bhoir, father of the parties, was holding licence for the salt work in the name and style of Rai Salt Factory. For the purpose of salt manufacturing, it was necessary to obtain licence. Record was maintained in the form of Jamin Kharda by the Collector of Revenue for Bombay. His evidence shows that he had produced before the Court Kamin Kharda exhibit 79A, which reveals that prior to 1937 the said Rai Salt Factory was in the name of Mukund and after his death as per the order of the Collector bearing no.3958 dated 6-5-1937, licence was transferred in the name of plaintiff Moreshwar. From this it appears that before 6-5-1937, Mukund had expired. Of-course, this order does not specifically point out date of death of Mukund. The learned counsel for the defendant/appellant vehemently contended that the entries taken in the record of rights have got presumptive value under Section 157 of the Land Revenue Code and it can be presumed that entries are correct. According to him, no such presumption is available to the entry taken in Jamin Kharda by the salt department. He contended that when the Collectors order was not produced before the Court, the said entry only about transfer of name of the plaintiff was not sufficient to prove that Mukund had died prior to 1937. It is material to note that D.W.1 Bhanudas, who is son of the defendant, admitted in cross-examination that his ancestors had owned salt pans. He also admitted that entries in respect of salt pans are maintained by salt department and are recorded in Jamin Kharda. He also admitted that Kurus Agar is situated in Murdha village and the plaintiff is extracting salt from the Kurus Agar. Thus, admissions of D. W. Bhanudas provides corroboration to the documentary evidence in the form of entry in Jamin Kharda. From the evidence of Vijay Agarwal and admission of D.W.1 Bhanudas, there remains no doubt that the Jamin Kharda was maintained by the salt department in respect of licensees, who held licence of land for the purpose of manufacturing salt on the land. Therefore, it is clear that Collector Revenue was required to maintain that record as a part of his official duty. Section 114 of the Indian Evidence Act provides that "Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." Illustration (e) provides that it may be presumed that judicial and official acts have been regularly performed. The maintenance of Jamin Kharda in respect of salt pans was official act of the Collector and, therefore, in view of Illustration (e) to Section 114, it may be presumed that the said official acts have been regularly performed and the entries were correctly taken unless contrary is proved. There is nothing on record to show that the said entry was wrongly taken. There is nothing to show that the said entry was added later on. Even if said entry in Jamin Kharda does not specifically mention the date of death of Mukund, it certainly reveals that the said entry about transfer of the licence of salt pan in favour of the plaintiff was taken on 6-5-1937 on the ground that his father Mukund had expired. Therefore, atleast from this it can be safely held that Mukund had died prior to 6-5-1937.

10. The said entry in Jamin Kharda, conditional sale deed of 1945, reconveyance deed of 1950 and the school record showing date of birth of the plaintiff to be 20th June, 1935 certainly go to falsify the contention of the defendant that defendant was born in 1938. If he would have been born in 1938, his name could not have been recorded in Jamin Kharda in May, 1937. In the written statement, defendant admits that at the time of death of their father, plaintiff was aged about 6 months. If he was six months old at the time of death of his father, he could not have been born in 1938 because his father had died prior to May, 1937. In view of this material, contention of the defendant was rightly rejected by both the Courts below and I find that before the learned Lower Appellate Court, the counsel appearing for the defendant had rightly conceded that there was no material to show that their father had died after 1937. In view of this, I am in agreement with the both the Courts below that Mukund had died sometimes in 1936 and in any case, prior to 14-4-1937, when the Hindu Womens Rights to Property Act came in force.

11. Section 3 of the Hindu Womens Rights to Property Act reads as follows :

3.(1) When a Hindu governed by the Dayabhag school of Hindu Law dies intestate his property, and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property that separate property shall, subject to the provisions of sub-section (3), devolve upon his widow along with his lineal descendants, if any, in like manner as it devolves upon a son;

Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son:

Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.

(2) When a Hindu governed by any school of Hindu Law other than the Dayabhag school or by customary law dies intestate having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had.

(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu womans estate, provided however that she shall have the same right of claiming partition as a male owner.

(4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession descends to a single heir or to any property to which the Indian Succession Act, 1925, applies."

Thus under Section 3(1), if Hindu dies intestate leaving separate property that separate property shall, devolve upon his widow along with the lineal descendants subject to the provisions of sub-section (3) and under sub-section (2), if a Hindu governed by Mitakshara School of Hindu Law died intestate having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had. Sub-section (3) provides that the interest was to be limited interest known as Hindu Women's estate. Section 4 of that Act declared that nothing in the said Act shall apply to the property of any Hindu dying intestate before the commencement of this Act. Gangabai could claim share in the property under Section 3 of this Act if her husband would have died after the commencement of this Act. As stated earlier this Act came into force on 14-3-1937. As her husband had died prior to that date, this Act is not applicable to the facts of this case and she could not get any share or interest in the property. Admittedly, under the Shastric Hindu Law, widow was not entitled to inherit any right or share in the joint family property or even in the separate property of her husband. She had only right of maintenance from the property.

12. In view of the fact that it is proved that Mukund had died prior to commencement of Hindu Women Rights to Property Act and his widow Gangabai did not get any interest in the property under that Act, now we have to consider what would be her right in the property left behind by Mukund particularly in the light of provisions of Section 14(1) of Hindu Succession Act. Section 14 reads as follows :

"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.

(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."

From the provisions of Section 14(1), it becomes clear that any property possessed by a female Hindu whether acquired before or after commencement of Hindu Succession Act shall be held by her as full owner thereof and not as a limited owner. Sub-section (2) is an exception to sub-section (1). Sub-section (2) is not relevant for the purpose of present matter.

13. Admittedly, Mukund died leaving behind his widow Gangabai, daughter Jamunabai and son Moreshwar. Both the children were minor. It appears that daughter was aged about 3 or 4 years, though according to her she was 6 years and the son was aged about six months at the time of his death. In view of this naturally both of them were under the guardianship of their mother, Gangabai. She was looking after not only the children but also the property left behind by her husband. Under the law, in force at that time neither she herself nor her daughter could claim any right of inheritance or share in the said property. Their son Moreshwar alone would be entitled to inherit property if it was separate property of their father and even if the property had come to his father from his grandfather, still as the sole surviving male member of the joint family, he would become exclusive owner of that property. His mother and sister could only claim to be maintained from that property. Defendant was maintained and her marriage was performed. Thus, it becomes clear that their mother Gangabai was in possession of the property not under her own right but as the guardian of her minor son. Even though she had right of being maintained, she herself was maintaining children and herself. There was never any dispute about the right of her maintenance, nor there was any occasion for any suit, decree, compromise, settlement in respect of her right of maintenance. The learned counsel for the defendant vehemently contended that in the record of rights, name of Gangabai was recorded alongwith her son as joint owners and from this it can be presumed that she had claimed to be owner of the property and that was recognised by the revenue authority. The learned counsel also contended that entry in the revenue record has presumptive value in view of Section 157 of the Land Revenue Code. He also placed reliance on Anandibai Bhaskar Nilkanth Vs. Narayan Dhonddev Tattoo and others, A.I.R. 1915 Bombay 63 wherein it was held that under Section 135(j) of the Bombay Land Revenue Code, 1879 enacts that the entries in the record of rights shall be presumed in effect to be a true statement of their contents and therefore, in the absence of any other evidence, a Court would be obliged to be guided by any facts so entered in the Record-of Rights. Provisions of Section 135 of the Bombay Land Revenue Code, 1879 and the provisions of Section 157 of the Maharashtra Land Revenue Code, 1966 are pari-materia. From this it is clear that presumption of correctness is attached to the entries in the record of rights. The Court would be obliged to be guided by the factors so entered in the record of rights in absence of any other evidence. In the present case, there is clear evidence that Gangabai did not have any legal right of inheritance or share in the property left by her husband and she was in possession of the property not in own right but as guardian of her son. In the face of this material, merely because there was entry in the record of rights to show her as joint owner with her son can not be given much importance nor any presumption of correctness could be attached to that.

14. The learned counsel for the appellant contended that in his evidence, plaintiff had admitted that his mother had limited interest in the property and in view of his admission, it must be held that she had limited interest in the suit property and that limited interest was converted into absolute right in 1956. I am unable to accept this contention. Mere admission about legal position by a layman can not be binding. There could be admission about facts giving rise to legal rights. Certainly the plaintiff was layman, he was not expected to know what is the correct legal position. Therefore, mere stray admission that his mother had limited right does not make any difference. The learned counsel for the defendant/appellant vehemently contended that while Gangabai was having right of maintenance and she was in actual possession of the property, when Hindu Succession Act came into force, she became absolute owner of the property by virtue of provisions of Section 14(1). In support of his contention he placed reliance on number of authorities. They include Mangal Singh and others Vs. Smt. Rattno (dead) by her legal Representatives and another, AIR 1967 Supreme Court 1786; V. Tulasamma and others Vs. Vaddeboyina Sesha Reddi (dead) by L.Rs., AIR 1977 Supreme Court 1944; Bai Vajia (dead) by Lrs. Vs. Thakorbhai Chelabhai and others, AIR 1979 Supreme Court 993; Mangat Mal (dead) and another Vs. Smt. Punni Devi (dead) and others, AIR 1996 Supreme Court 172; Jagannathan Pillai Vs. Kunjithapadam Pillai and others, AIR 1987 Supreme Court 1493. V. Tulasamma is the leading authority about the interpretation of Section 14(1) of the Hindu Succession Act. After taking stock of a number of authorities in the field, Their Lordships observed as follows in paragraph 70 :

"70. 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 S.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 pre-existing 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 females 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-s.(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 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 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 S.14(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."

This authority has been followed by the Supreme Court in almost all the cases thereafter.

15. On the other hand, the learned counsel for the plaintiff/respondent vehemently contended that in all the above cases on one or the other stage, there was some dispute and, therefore, either some suit was filed or matter was referred to arbitration or in some settlement, rights were recognised and the widow was put in possession of the property and, therefore, she had acquired the right and was possessed of the property. The learned counsel vehemently contended that for application of Section 14(1), it is necessary that the woman should have acquired and should have been possessed of the property and unless both these requirements were satisfied, Section 14(1) would not be applicable. In support of this contention, he placed reliance on Ram Vishal (Dead) by LRS. and Others Vs. Jagan Nath and Another, (2004)9 Supreme Court Cases 302 wherein Their Lordships observed as follows in paragraph -

"16. In our view, the authority in Raghubar Singh case can be of no assistance to the respondent. As has been held by this Court, a pre-existing 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. In the present matter, it is nobody's case that Manki had got possession of the 1/4th share in lieu of maintenance or in arrears of maintenance. It was also not their case that there was a partition of the property and that in such partition, she had been given the property. A mere right of maintenance without actual acquisition in any manner is not sufficient to attract Section 14."

16. Facts of Ram Vishal Vs. Jagan Nath and another were almost similar to the present case. It appears that in V. Tulasamma, the appellant had claimed maintenance out of the joint family properties in the hands of the respondent, who was her deceased husbands brother. The claim was decreed in favour of the appellant and in execution of the decree for maintenance, a compromise was arrived at between the parties allotting the properties in question to the appellant for her maintenance and giving her limited interest in such properties. It was held that since the properties in question were acquired by the appellant under the compromise in lieu of satisfaction of her right of maintenance, it was sub-section (1) and not sub-section (2) of Section 14 which would be applicable and she must be deemed to have become full owner of the properties notwithstanding that the compromise prescribed a limited interest for her in the properties. In Bai Vajia (dead) by Lrs., Vs. Thakorbhai Chelabhai others and others, a suit for partition was filed by one of the members of the joint family and decree was passed in 1909 wherein Bai Vajia, widow of one of the members of the family, was held to be entitled to maintenance and that was decided to be at Rs.42/- per annum. Decree provided that in the event of default in payment continuing for a period of a month after the due date, Bai Vajia would be entitled to take possession of the land mentioned therein in lieu of the maintenance. Default having been made in the payment of maintenance to her, she took out execution and obtained possession of the land in dispute. In such circumstances, it was held that she had become absolute owner of the property under Section 14(1). In Mangat Mal (dead) and another Vs. Smt. Punni Devi (dead) and others, after some dispute arose between the parties, matter was referred to the arbitrator and as per the terms of the reference, the award and the document executed the property was put in possession of the widow in lieu of her pre-existing right to maintenance, upon coming into force of Hindu Succession Act, her limited rights were found to have blossomed into full ownership rights and she became entitled to sell it. In Jagannathan Pillai Vs. Kunjithapadam Pillai and others, widow had acquired and was possessed of certain property as limited estate prior to commencement of Hindu Succession Act, 1956. She had transferred that property. However, she had again come in possession of the said property on re-transfer prior to 1956 Act had came into force. The Supreme Court held that she had become absolute owner of the property under Section 14(1).

17. On perusal of the facts of each of the cases relied upon by the defendant, it would be clear that at one or the other stage, there was some kind of dispute about the rights of Hindu widow, who was member of the family. For the rights of maintenance either some suit was filed or proceeding was initiated or the matter was referred to arbitrator or partition had taken place wherein she was put in possession or she had acquired the possession of the property. Thus, she had acquired property and was possessed of the property when Section 14(1) came into force and, therefore, by virtue of Section 14(1), she became absolute owner of the suit property. However, facts of the present case are totally different. In the present case, there was never such dispute. After death of Mukund, Gangabai herself was looking after both the children and property of her son as his guardian. There was no dispute till her death in 1990 and till the defendant claimed share in the property and moved revenue authority for recording her name as one of the joint owners of the property. In my considered opinion to the facts of the present case, authority of Supreme Court in Ram Vishal (dead) by LRS. and Others Vs. Jagan Nath and Another is aptly applicable wherein Their Lordships held that a mere right of maintenance without actual acquisition in any manner is not sufficient to attract S.14(1). As pointed out earlier, facts of that case and present one are similar. In that case also Their Lordships held that a concerned Hindu widow namely, Manki had no right at all which could fructify into full ownership under the Hindu Succession Act. In the present case also there was never any dispute nor it can be stated that Gangabai had acquired rights in the property and, therefore, it can not be said that she had become absolute owner of certain share in the suit property left behind by her husband Mukund. If she had not become absolute owner of the property and if she had no right or title over the property at the time of her death, her daughter could not claim any share by way of inheritance or otherwise. Taking into consideration the facts and the legal position, I find that the learned Appellate Court was right in allowing the appeal and passing the decree in favour of the plaintiff.

18. In the result, appeal stands dismissed.

19. At this stage, the learned counsel for the defendant/appellant makes a request to continue interim relief, which is already operating for a further period of 8 weeks. The learned counsel for the plaintiff/respondent objects to the same. However, as the plaintiff is already in possession, for further period of eight weeks, he shall not create any third party rights in the suit property.

Appeal dismissed.