Is physical/constructive possession of the property by a female Hindu on the date of commencement of the Act, viz. 17-6-1956 a sine-qua-non for attracting section 14(1) is the next question. Question has been answered thus by the Supreme Court in the case of Jagannathan Pillai v. Kunjithapadam Pillai, .
"There is nothing in section 14 which supports the proposition that a Hindu female should be in actual physical possession or in constructive possesion of any property on the date of the coming into operation of the Act... ... ... .. There is, therefore, no escape form the conclusion that possession, physical or constructive or in a legal sense, on the date of the coming into operation of the Act is not the sine qua non for the acquisition of full ownership in property."
Bombay High Court
Gangabai W/O Bala Kada By Jer Jeors ... vs Jagannath Parashram Kadam And ... on 27 September, 1993
Equivalent citations: 1994 (3) BomCR 321
1. Gangabai Kadam, an aged widow (since deceased) filed a civil suit in the year 1976 for (i) a declaration of title to half portion of the house property where she was residing and three acres of agricultural land which was in her cultivating possession and (ii) permanent injunction restraining the defendants from interfering with her possession.
The suit was decreed by the trial Court and dismissed by the Appellate Court. Hence this Second Appeal, by her legal heirs.
2. The follwing facts are either duly established or are undisputed. Gangabai was a widow of Bala who died on 18-4-1924 leaving behind Gangabai, Gunabai, wife of a pre-deceased son Shripat and adopted son Parashram. Parashram died in 1962 leaving behind two widows and two sons (the defendants). Parashram had filed a civil suit, being Regular Civil Suit No. 912 of 1928, against Gangabai and Gunabai for a declaration that he was a validly adopted son of Bala The said suit was decreed on 11-3-1929 in which pre-existing right of Gangabai to continue to remain in possession of the half portion of the house property and to get maintenance from the estate, was recognised. Gangabai was residing in half portion of the house property and was maintained by Parashram by providing her food, clothing and other necessities of life. When Parashram died in the year 1962, his legal heirs were not in a position to provide maintenance to Gangabai and hence she started cultivating the suit land and paid land revenue. In a consolidation scheme under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, the said land was entered in her name long ago and the said entry was not challenged by the defendants.
3. I may hasten to mention that her case in the plaint was that she has been in possession also of the disputed land since the beginning, but that part of the story has not been accepted by the courts in the absence of positive proof.
4. The trial Court had held that since 1962 Gangabai was in possession of the suit land which was given to her in lieu of her pre-existing right of maintenance. House property was undisputedly in her possession since beginning and consequently decreed the suit taking the view that she had become absolute owner of the property under section 14(1) of the Hindu Succession Act (`the Act'). The Appellate Court has held that Gangabai entered into possession of the suit land since 1962, was actually cultivating the land, was paying the land revenue and her name was entered as owner in the Government records. But in his view, the said possession was forcible, and hence section 14(1) of the Act did not apply. He, therefore, dismissed the suit not only in respect of the land but also in respect of house property possession of which was undisputedly lawful.
5. Having heard Shri Rane, learned Counsel for the Appellant and Shri Walawalkar, learned Counsel for the respondents and perused the record, I am satisfied that the appellate judgment and decree cannot stand scrutiny. In no case relief in respect of house property could be refused in the face of undisputed position that she was in possession since much before 1956. Gangabai was in possession of the suit land openly claiming her title as owner for 14 years. It is a common ground that no challenge or protest to her claim or possession was made by the defendants. Gangabai had a pre-existing right of maintenance. Quite obviously she was given possession of the land in lieu of that right. In this background, finding that Gangabai forcibly entered into possession and retained that possession illegally for 14 years, is perverse. There was no justification whatsoever for the District Judge to strike on the subject a note different from the trial Court. The field in question was given to Gangabai in lieu of pre-existing right of maintenance and she had acquired absolute ownership over the same in view of section 14(1) of the Act.
6. Is physical/constructive possession of the property by a female Hindu on the date of commencement of the Act, viz. 17-6-1956 a sine-qua-non for attracting section 14(1) is the next question. Question has been answered thus by the Supreme Court in the case of Jagannathan Pillai v. Kunjithapadam Pillai, .
"There is nothing in section 14 which supports the proposition that a Hindu female should be in actual physical possession or in constructive possesion of any property on the date of the coming into operation of the Act... ... ... .. There is, therefore, no escape form the conclusion that possession, physical or constructive or in a legal sense, on the date of the coming into operation of the Act is not the sine qua non for the acquisition of full ownership in property."
7. In the case Smt. Gulwant Kaur v. Mohinder Singh, , it has been laid down :
"If a female Hindu is put in possession of property pursuant to or in recognition of a right to maintenance, it cannot be denied that she has acquired a limited right or interest in the property and once that position is accepted, it follows that the right gets enlarged to full ownership under section 14(1) of the Act. Therefore, it could not be argued that even if the land was given to the wife in lieu of maintenance, it must be established that what was given to her was a limited estate in the sense of ownership without the right of alienation and that under section 14 of the Hindu Succession Act only such a limited estate would blossom into an absolute estate."
8. My attention was invited on behalf of the respondents to a latest decision of the Supreme Court in the case of Kalawatibai v. Soiryabai and others, . In that case earlier decision in Jagannathan Pillai (Supra) has been noticed and no dissenting note is struck. Other observations made in that judgment are in the context of peculiar facts of that case. Thus the law as well as equity was in favour of Gangabai and there was no justification whatsoever to interfere in Appeal with the relief granted by the trial Court.
9. This Appeal is allowed. The judgment and decree passed by the Appellate Court is, therefore, set aside and the one passed by the trial Court is restored. No order as to costs.
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