Sunday, 13 November 2016

Whether property received by widowed daughter from her father in lieu of maintenance will become her absolute property?

Hindu Law- Hindu Succession Act, 1956- Sec. 14(1)- Moral obligation,
when becomes legal obligation- Discussed
In this matter, argument of the counsel for the petitioner that interest of
Smt. Parag Devi under gift deed dated 17.07.1956 was due to her pre-existing
right of maintenance as such it was enlarged under Section 14(1) of Hindu
Succession Act, 1956 as held by Supreme Court in Jupudy Pardha Sarathy Vs.
Pentapati Rama Krishna and others passed in Civil Appeal No. 375 of 2007
decided on 6.11.2015, is also liable to be accepted. Supreme Court in
Laxmappa Vs. Balawa Kom Tirkappa Chavdi (Smt), (1996) 5 SCC 458, held
that the position of the married daughter is somewhat different. It is 
acknowledged that if the daughter is unable to obtain maintenance from her
husband, or, after his death, from his family, her father, if he has got separate
property of his own, is under a moral, though not a legal, obligation to maintain
her. The High Court has concluded that it was clear that the father was under an
obligation to maintain the plaintiff-respondent. Seemingly, the High Court in
doing so was conscious of the declaration made in the gift deed in which she
was described as a destitute and unable to maintain herself. In that way, the
father may not have had a legal obligation to maintain her but all the same there
existed a moral obligation. And if in acknowledgment of that moral obligation
the father had transferred property to his daughter then it is an obligation wellfructified.
In other words, a moral obligation even though not enforceable under
the law, would by acknowledgment, bring it to the level of a legal obligation,
for it would be perfectly legitimate for the father to treat himself obliged out of
love and affection to maintain his destitute daughter, even impinging to a
reasonable extent on his ancestral property. It is duly acknowledged in Hindu
law that the Karta of the family has in some circumstances, power to alienate
ancestral property to meet an obligation of the kind. Court would be rather
construe the said paragraph more liberally in the modern context having regard
to the state of law which has been brought about in the succeeding years.
Therefore, in court‟s view, the High Court was within its right to come to the
conclusion that there was an obligation on the part of the father to maintain his
destitute widowed daughter. 
IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
Consolidation No. 738 of 2006
Decided On: 26.02.2016
Prem Kali
Vs.
 Deputy Director of Consolidation Sitapur and Ors.
Coram:Ram Surat Ram (Maurya), J.


1. Heard Sri Vikas Srivastava Bakshi, for the petitioner and Sri D.P. Gupta, for the contesting respondents.
2. This writ petition has been filed against the orders of Consolidation Officer dated 21.07.2003 and Deputy Director of Consolidation dated 24.07.2006, passed in title proceeding, under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).
3. The dispute relates to plot 489 (area 2.36 acre) of village Dariyapur, pargana Lahar, district Sitapur. In basic consolidation year, land in dispute was recorded in the name of Smt. Prem Kali (the petitioner), Smt. Manno Devi and Ghan Shyam (respondents-4 and 5) in khata 145. Ramesh Chandra (respondent-3) filed an objection (registered as Case No. 69/57/53/49) under Section 9-A of the Act, claiming co-tenancy of 1/2 share in the land in dispute. It has been stated by Ramesh Chandra that land in dispute [whose old numbers were plots 448 (area 0.58 acre), 478 (area 0.82 acre), 841 (area 0.89 acre) and 879 (area 0.55 acre) (total area 2.84 acre) was bhumidhari holding of Guru Prasad, his great grand father, who executed a gift deed dated 17.07.1956 in favour of Smt. Parag Devi, his widow daughter, creating a life interest in her for her maintenance. Smt. Parag Devi did not have transferable right over the land in dispute. After death of Smt. Parag Devi, land in dispute was jointly inherited by Ram Narain and Bankey Lal sons of Guru Prasad as such he had 1/2 share and remaining 1/2 share belonged to Smt. Manno Devi and Ghan Shyam (respondent-4 and 5). Gift deed dated 05.03.1974, executed by Smt. Parag Devi in favour of Smt. Prem Kali and Smt. Manno Devi was void. Smt. Manno Devi (respondent-4) supported the case of Ramesh Chandra (respondent-3).
4. The petitioner contested the case. It has been stated by the petitioner that Guru Prasad, who was bhumidhar of the land in dispute, executed a gift deed dated 17.07.1956 in favour of Smt. Parag Devi, his widow daughter, which was accepted by her. Name of Smt. Parag Devi was mutated over the land in dispute and she was in possession of it. Smt. Parag Devi was living with the petitioner and Smt. Manno Devi during her life time. Due to love and affection, Smt. Parag Devi executed a gift deed dated 05.03.1974 in their favour, which was accepted by them and their names were mutated over the land in dispute. Smt. Parag Devi had transferable right and gift deed dated 05.03.1974 was valid. Ramesh Chandra was never in possession of the land in dispute.
5. The case was tried by Consolidation Officer. Apart from documentary evidence, Ramesh Chandra examined himself, Sitaram son of Banwari, Vidya son of Mahadeo as witnesses. The petitioner filed gift deed dated 05.03.1974 and examined Shridhar son of Ram Bilas, Lalji son of Deen Dayal and Smt. Prem Kali as witnesses. Consolidation Officer, after hearing the parties, by order dated 21.07.2003 held that pedigree as given by Ramesh Chandra, Guru Prasad being bhumidhar of the land in dispute and execution of gift deed dated 17.07.1956 in favour of Smt. Parag Devi were admitted to the parties. A perusal of gift deed dated 17.07.1956 shows that life interest was created in favour of Smt. Parag Devi for her maintenance, specifically stipulating that she had no transferable right and after her death, land in dispute would devolved upon his sons Ram Narain and Banke Lal. All the terms of gift deed dated 17.07.1956 were liable to be read together. Terms of the gift deed specifically stipulated that after death of Smt. Parag Devi, land in dispute would be inherited by his sons. As such Smt. Parag Devi had no transferable right and gift deed dated 05.03.1974 executed by her in favour of the petitioner and Smt. Manno Devi was void. Ramesh Chandra was co-sharer in the land in dispute as such he shall be deemed to be in possession of it. On these findings, he allowed the objection of Ramesh Chandra and held his 1/2 share in it.
6. The petitioner filed an appeal (registered as Appeal No. 617/428/203) from the aforesaid order. The appeal was heard by Assistant Settlement Officer Consolidation, who by order dated 16.06.2005 held that on the basis of gift deed dated 17.07.1956, absolute right has been transferred to Smt. Parag Devi and possession was also transferred to her. Terms, restricting right of transfer of Smt. Parag Devi, was void. Gift deed dated 05.03.1974 was valid. On the basis of which, possession over the disputed land was handed over to Smt. Prem Kali and Smt. Manno and their names were also mutated in revenue record. No one has challenged gift deed dated 05.03.1974. On these findings, the appeal was allowed, order of Consolidation Officer dated 21.07.2003 was set aside and objection of Ramesh Chandra was dismissed.
7. Ramesh Chandra filed a revision (registered as Revision No. 333/256) against aforesaid order. The revision was heard by Deputy Director of Consolidation, who by order dated 24.07.2006 held that Guru Prasad executed gift deed dated 17.07.1956 in favour of Smt. Parag Devi and her name was mutated over the land in dispute. Smt. Parag Devi executed gift deed dated 05.03.1974 in favour of Smt. Manno Devi and Smt. Prem Kali. While mutating their names on the basis of gift deed dated 05.03.1974, name of Ghan Shyam was wrongly mutated, which is liable to be deleted. Smt. Parag Devi accepted gift deed dated 17.07.1956 as such she accepted all the terms of gift deed. Under the terms of gift deed dated 17.07.1956, she was not given transferable right of the land in dispute as such gift deed dated 05.03.1974, executed by her was void and on its basis no right can be given to the petitioner and Smt. Manno Devi. After death of Smt. Parag Devi, land in dispute was jointly inherited by Ram Narain and Banke Lal as such Ramesh Chandra has 1/2 share in land in dispute. On these findings, he allowed the revision and set aside order of Assistant Settlement Officer Consolidation and affirmed order of Consolidation Officer. Hence this writ petition has been filed.
8. The counsel for the petitioner submitted that gift is a mode of transfer, governed by the provisions of Transfer of Property Act, 1882. Section 10 of Transfer of Property Act, 1882 provides that where property is transferred subject to condition or limitation absolutely restraining the transferee from parting with the property, then such condition is void. Admittedly Guru Prasad was father of Smt. Parag Devi, who was a widow and living with him. Due to natural love and affection, preexisting right of maintenance and pitiable condition of Smt. Parag Devi, Guru Prasad executed gift deed dated 17.07.1956 of the land in dispute, which was accepted by her and her name was also mutated over gifted land. Term of the gift deed dated 17.07.1956, imposing condition of non-transferable right, of the land gifted to Smt. Parag Devi, was void. Gift deed dated 17.07.1956 was a valid document and on its basis possession was transferred to Smt. Parag Devi. This gift deed was not challenged during life time of Smt. Parag Devi. On the basis of gift deed Smt. Parag Devi had become bhumidhar of the land in dispute under Section 130 of U.P. Act No. 1 of 1951 and had transferable right under Section 152 of that Act. Gift deed dated 05.03.1974, executed by her was a valid document and has been illegally ignored by respondents-1 and 2. He relied upon judgments of Calcutta High Court in Gorachand Mukherjee Vs. Smt. Malbika Dutta, MANU/WB/0334/2001 : AIR 2002 Cal 26 and Patna High Court in Jagdeo Sharma Vs. Nandan Mahto, MANU/BH/0005/1982 : AIR 1982 Pat 32, in which it has been held that Section 10 of Transfer of Property Act, 1882 is applicable over gift deed and condition, restraining donee from right to alienation, is void. Judgment of Supreme Court in Civil Appeal No. 375 of 2007 Jupudy Pardha Sarathy Vs. Pentapati Rama Krishna (decided on 06.11.2015), in which it has been held that life estate created in favour of widow lady in lieu of maintenance is enlarged under Section 14(1) of Hindu Succession Act, 1956.
9. In reply to the aforesaid arguments, the counsel for the respondent submitted that gift deed dated 17.07.1954 is liable to be read as a whole. All the clauses of gift deed dated 17.07.1954 has to be given effect to. Smt. Parag Devi derived her title on the basis of gift deed dated 17.07.1954 as such restriction of alienation imposed upon her right in the gift deed is equally applicable with all force and rigour. Smt. Parag Devi was not given transferable right. In fact of the case, she, being widow daughter, living with her father, gift deed dated 17.07.1954 was executed for her maintenance, creating life interest only. Gift deed dated 05.03.1974 executed by her is void. Under terms of gift deed dated 17.07.1954, land in dispute devolved upon sons of Guru Prasad after death of Smt. Parag Devi. Under law conditional gift deed was permitted as held by Supreme Court in Thukur Raghunath Ji Maharaj Vs. Ramesh Chandra, MANU/SC/0352/2001 : AIR 2001 SC 2340. He also relied upon judgment of this Court in Dashrath Vs. Board of Revenue, U.P., 1983 RD 46 (H), in which it has been held that will is not a transfer but devolution of interest. A widow lady has no right to bequeath the land in favour of any other person. Shri Sharif Ahmad Vs. Faiz Mohammad, 2015 (33) LCD 2545, in which it has been held that if transaction of sale deed was not materialized according to agreement to sell then protection under Section 53-A of Transfer of Property Act, 1882 would not be available.
10. I have considered the arguments of the counsel for the parties and examined the record. Pedigree as given by Ramesh Chandra, Guru Prasad being bhumidhar of the land in dispute and execution of gift deed dated 17.07.1956 by him, in favour of his widow daughter, Smt. Parag Devi, transfer of possession over land in dispute to her and mutation of her name in revenue record on its basis are admitted to the parties. According to the respondent, a conditional gift is permitted under the law. The conditions of gift deed dated 17.07.1956, granting non-transferable right, creating life interest in favour of Smt. Parag Devi, for her maintenance and specifically stipulating that after her death, land in dispute would devolved upon his sons Ram Narain and Banke Lal, were valid, as held by Supreme Court in Thakur Raghunath Ji Mahraj (supra). Smt. Parag Devi accepted gift deed as such the conditions imposed therein were binding upon her. Gift dated 05.03.1974 executed by her is void.
11. So far as case of Thakur Raghunath Ji Mahraj (supra), relied upon by the counsel for the respondent, is concerned, in that case, gift was for religious purposes. In the gifts of religious and charitable purposes real donee are either deity or general public. Donee, in which favour, gift was made, is only in capacity of manager or trustee. He has to fulfill the obligations created by gift deed. As such it was held that conditional gift deed was valid. Paragraph-7 of the judgment, is quoted below:--
"7. Further the relationship between the plaintiff and the defendants was fiduciary as the suit property was gifted for a specific charitable purpose and the condition attached to the gift that in case the college building was not constructed within a specified time, the plaintiff would be entitled to the property, was a valid condition; the donee continued to be trustee and the donor could claim back property on the breach of conditions mentioned in the agreement. The High Court rightly relied on the decision of this Court in State of U.P. v. Bansi Dhar, MANU/SC/0429/1973 : AIR 1974 SC 1084 which fully supports the case of the respondent in regard to his claim for possession of the property. In the said judgment, it was held that the donation given by Dubey was conditional; the Government was a mere custodian of the cash till condition was complied with and if the performance thereof was defeated by the Government, the gift did not take effect. It was further held that the transaction was not a gift simpliciter but was subject to certain conditions; as conditions were not carried, the State could not keep the money and the suit was liable to be decreed."
12. Supreme Court in Renikuntla Rajamma Vs. K. Sarwanamma, MANU/SC/0612/2014 : AIR 2014 SC 2906, held that actual delivery of property at the time of gift is not necessary as such if donor retains possession for her life time of the gifted property then such a conditional gift was valid. As under Section 124 gift of future property can be also made as such retaining possession by donor for her life time was held as a valid condition.
13. The other Case laws relied upon by the counsel for the respondents in Dashrath Vs. Board of Revenue, U.P., 1983 RD 46 (H), in which it has been held that will is not a transfer but devolution of interest. A widow lady has no right to bequeath the land in favour of any other person, is based upon Section 169 (2) of U.P. Act No. 1 of 1951 (now deleted by U.P. Act No. 30 of 1975), has no application as Section 169 regulates right of a bhumidhar to execute a will, while in this case, there is a gift deed and not a will. Shri Sharif Ahmad Vs. Faiz Mohammad, 2015 (33) LCD 2545, in which it has been held that if transaction of sale deed was not materialized according to agreement to sell then protection under Section 53-A of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882") would not be available, is also not applicable.
14. A gift is "transfer of property whether movable or immovable" with meaning of Section 5 of Transfer of Property Act, 1882 and are governed by its provisions. Gift has been defined under Section 122 of Transfer of Property Act, 1882 and mode of gift has been given under Section 123. In this case, interpretation of Section 10, 122 and 126 which are necessary, quoted below:--
"10. Condition restraining alienation.--Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: Provided that property may be transferred to or for the benefit of a woman (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same for her beneficial interest therein.
122. "Gift" defined.--"Gift" is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made.--Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void.
126. When gift may be suspended or revoked.--The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked, but a gift which the parties agree shall be revocable wholly or in part at the mere will of the donor is void wholly or in part, as the case may be.
A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.
Save as aforesaid, a gift cannot be revoked.
Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.
Illustrations
(a) A gives a field to B, reserving to himself, with B's assent, the right to take back the field in case B, and his descendants die before A. B dies without descendants in A's lifetime. A may take back the field.
(b) A gives a lakh of rupees to B, reserving to himself, with B's assent, the right to take back at pleasure Rs. 10,000 out of the lakh. The gift holds good as to Rs. 90,000 but is void as to Rs. 10,000 which continue to belong to A."
15. A bare reading of Sections 10 and 126 of Act, 1882, shows that Section 10 lays down that in a transfer, the condition restraining alienation, cannot be inserted. Section 126 of Act, 1882 lays down that on happening of certain condition, not depended on the will of the donor, the gift can be suspended or revoked. Present case is not covered under Section 126. According to the respondent, gift can be conditional. But there is no question as to whether a gift can be conditional but the real question is that condition, which has been specifically prohibited under Section 10 of Act, 1882 can be imposed in the gift or not. There is no reason to hold that the condition which is specifically prohibited under Section 10 of Act, 1882 is not applicable to gift. This question came for consideration before various Courts in under noted cases from time to time, viz Re Dugdale (1888) 38 Ch D 176; Nabob Amiruddaula Vs Nateri (1876) 6 Mad HC 356 (Mohomedan Law); Anantha Vs Nagamuthu (1882) ILR 4 Mad 200; Ali Hasan Vs Dhirja MANU/UP/0073/1882 : (1882) ILR 4 All 518; Bhairo Vs. Parmeshri (1885) ILR 7 All 516; Muthukamara Vs. Anthony (1915) ILR 38 Mad 86724 IC 120; Narayanan Vs Kannan(1884) 7 Mad 315, Brij Devi v. Shiv Nanda Prasad, MANU/UP/0084/1938 : AIR 1939 All 221; Giani Ram Vs Balmakand MANU/PH/0109/1956 : (1956) 58 Punj LR 114, MANU/PH/0109/1956 : AIR 1956 Punj 255; Ramasamy and ors Vs. Wilson Machine Works AIR 1994 Madras 222 (NOC), Jagdeo Sharma Vs. Nandan Mahto, MANU/BH/0005/1982 : AIR 1982 Pat. 32 and Gorachand Mukherji Vs. Smt. Malabika Dutta, MANU/WB/0334/2001 : AIR 2002 Cal 26. This Court has already taken the view that condition restraining donee from alienation of gift, cannot be imposed and such a condition is void under Section 10 of the Act, 1882. I respectfully agree with the aforesaid view taken in Birj Devi (supra).
16. In this case, a perusal of the gift deed shows that in the gift deed non-transferable right has been conferred upon Smt. Parag Devi with further stipulation that after her death the property will devolve upon the sons of donor. This condition restraining Smt. Parag Devi from transferring the property in dispute is void and gift deed dated 05.03.1974 executed by Smt. Parag Devi is valid.
17. Other argument of the counsel for the petitioner that interest of Smt. Parag Devi under gift deed dated 17.07.1956 was due to her preexisting right of maintenance as such it was enlarged under Section 14(1) of Hindu Succession Act, 1956 as held by Supreme Court in Jupudy Pardha Sarathy Vs. Pentapati Rama Krishna and others passed in Civil Appeal No. 375 of 2007 decided on 6.11.2015, is also liable to be accepted. Supreme Court in Laxmappa Vs. Balawa Kom Tirkappa Chavdi (Smt), MANU/SC/0961/1996 : (1996) 5 SCC 458, held that the position of the married daughter is somewhat different. It is acknowledged that if the daughter is unable to obtain maintenance from her husband, or, after his death, from his family, her father, if he has got separate property of his own, is under a moral, though not a legal, obligation to maintain her. The High Court has concluded that it was clear that the father was under an obligation to maintain the plaintiff-respondent. Seemingly, the High Court in doing so was conscious of the declaration made in the gift deed in which she was described as a destitute and unable to maintain herself. In that way, the father may not have had a legal obligation to maintain her but all the same there existed a moral obligation. And if in acknowledgment of that moral obligation the father had transferred property to his daughter then it is an obligation well-fructified. In other words, a moral obligation even though not enforceable under the law, would by acknowledgment, bring it to the level of a legal obligation, for it would be perfectly legitimate for the father to treat himself obliged out of love and affection to maintain his destitute daughter, even impinging to a reasonable extent on his ancestral property. It is duly acknowledged in Hindu law that the Karta of the family has in some circumstances, power to alienate ancestral property to meet an obligation of the kind. We would rather construe the said paragraph more liberally in the modern context having regard to the state of law which has been brought about in the succeeding years. Therefore, in our view, the High Court was within its right to come to the conclusion that there was an obligation on the part of the father to maintain his destitute widowed daughter.
18. Otherwise also on the basis of gift deed dated 17.7.1956 Smt. Parag Devi had become bhumidhar of the land in dispute and her name was recorded as such in the revenue records. In view of Sections 130 read with Section 152 of UP Act No. 1 of 1951, she has transferable right and gift deed dated 5.3.1974 is valid as held by Supreme Court in Ramji Dixit Vs. Bhrigu Nath, MANU/SC/0146/1968 : AIR 1968 SC 1058.
19. In view of the aforesaid discussions, the writ petition succeeds and is allowed. The order of Consolidation Officer dated 21.07.2003 and Deputy Director of Consolidation dated 24.04.2006 are set aside. The order of Assistant Settlement Officer, Consolidation dated 16.06.2005 is affirmed.

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