C.V. RANE, M.U. SHAH

(1.) This judgment will govern the disposal of the First Appeals Nos. 481 of 1961 and 1112 of 1969 both of which arise out of the judgment and decree dt. 11-1-67 of the learned Judge City Civil Court 5 Court Ahmedabad in Civil Suit No. 162 of 1964. The facts of the above suit were in brief as under:

Lalbhai Chunilal died in the year 1915 leaving behind him his widow Bai Mukta alias Bai Manek. Lalbhais brother Maneklal died on 16-12-59 leaving behind him his widow Bai Champa son Devendrakumar and two daughters namely (1) Nirmalaben and Bai Suryakanta. Bai Manek also died on 6th of June 1963 During her life time Bai Manek had transferred some of the properties which she had inherited from her husband. Some of the suit properties were sold by Bai Manek to one Jamnadas Harilal on 12th October 1928 Reversionary heirs of Lalbhai Chunilal had filed a suit to set aside the above alienations and a decree was passed in their favour. Bai Manek had bequeathed some of the properties to defendants Nos. 1 and 2 by her will executed on 29th March 1958 and registered on 15-5-58. It was the case of the plaintiffs that on the day on which the Hindu Succession Act 1956 (hereinafter called the Act) came into force she was not in possession of the suit properties and hence she continued to have only limited interest as a widow so far as the suit properties were concerned. The plaintiffs therefore filed the above suit to obtain a declaration that as reversioners they were the owners of the suit properties and also for an injunction restraining the defendants Nos. 1 2 and 3 from recovering the rent of such of the properties as were in possession of the tenants. They also prayed for possession of the suit properties.

(2.) Suit properties have been divided into four lots. Property at serial No. 1 in lot No. 1 is in possession of tenants. This property is bequeathed to defendant No. 2 under the will dated 29-3-58 by Bai Manek. Property at serial Nos. 2 and 3 in lot No. 1 have also been bequeathed in a similar manner to defendant No. 2. These two properties were formerly sold to Jamnadas Harilal on 12-10-28. Suits filed by reversioners to challenge the above sale were decided in their favour. Properties at serial Nos. 4 to 7 in lot No. 1 were alleged to have been given by way of a gift to defendant No. 1 in the year 1951.

(3.) Lot No. 2 and Lot No. 3 consisted of 5 fields and 2 fields respectively and they were all along in possession of Bai Manek. Lot No. 4 consisted of 12 fields but the plaintiffs had not prayed for any relief in respect of those fields. A reference has also been made to annuity of Rs. 37. 57 in lot No. 4. The annuity was alleged to be a sort of political pension but no evidence was adduced as to the nature of the plaintiffs right to claim any relief in respect of the annuity.

(4.) According to defendants Nos. 1 and 2 who were contesting the above suit the properties in question were bequeathed to them by a will of Bai Manek registered on 15-5-58. As Bai Manek had become the full owner of those properties by virtue of the provisions of sec. 14 of the Act they have become the owners of the properties as a result of the above will of Bai Manek. The defendant No. 3 was merely a reversionary heir and no relief was claimed against him and defendants Nos. 4 5 and 6 were the tenants in possession of some of the properties. They had not filed their written statements and the suit was heard ex-parte against them. Defendant No.7 who was also a tenant had filed his written statement at Ex. 32. Defendants Nos.8 and 9 were also tenants but no relief was claimed against them. Even though defendants Nos. 7 and 8 had filed their written statements they were not present when the suit was heard.

(5.) The learned Judge has held that the plaintiffs were reversionary heirs for the purpose of the estate of deceased Lalbhai Chunilal. He has also held that the plaintiffs and defendant No.3 in their capacity as reversionary heirs of deceased Lalbhai Chunilal are entitled to the two properties at serial Nos. 2 and 3 in lot No. 1. Defendant No. 7 who is a tenant in respect of the above properties was restrained from paying any rent to defendant No.2. As regards the rest of the suit properties he took the view that by virtue of sec. 14 of the Act Bai Manek bad become the full owner of those properties and hence the plaintiffs were not entitled to claim any relief in respect of those properties. The plaintiffs suit in respect of the rest of the properties was therefore dismissed by him. Being aggrieved by the decision to the above effect the plaintiffs have come in appeal which has been numbered as first appeal No. 481 of 1967. Defendant No. 2 has also preferred an appeal being appeal No. 1112 of 1969 to challenge that part of the decree of the learned Judge by which he declared that plaintiffs and defendant No.3 were entitled to the two properties at serial Nos. 2 and 3 in lot No. 1. As both these appeals arise out of the decision in one and the same case they will be disposed of by this common judgment.

(6.) It is not disputed that after the death of Lalbhai Chunilal in the year 1915 his widow Bai Manek was in possession of the suit properties. As observed above it is the case of the plaintiffs that Bai Manek alias Bai Mukta had only a limited interest as a widow of deceased Lalbhai in the suit properties. As some of the properties had been transferred by her before the Act came into force she cannot be said to be in possession of those properties on the day on which the Act came into force and hence she cannot be said to be a full owner of the suit properties on the basis of sec. 14 of the Act. We shall first deal with those properties (serial Nos. 2 and 3 lot No. 1) which were sold by Bai Manek to one Jamnadas on 12-10-28-Maneklal who is a brother of deceased Lalbhai had filed a suit being Civil Suit No. 1070 of 1932 to challenge the above alienations. Deceased Bai Mukta and Jamnadas were parties to the above suit. The above suit was decided in favour of the plaintiff Maneklal. Appeal preferred from the above decision was dismissed by the District Court Ahmedabad and his judgment was confirmed by the High Court on 263-39. According to the decision in the above suit the sale in question was not binding to the plaintiff. In spite of the above position an attempt was made on behalf of the defendants Nos. 1 and 2 to show that after the decision in the above suit Bai Manek had acquired the possession of the properties in question before the Act came into force. The above contention of defendants Nos. 1 and 2 was however not accepted by the learned Trial Judge. In order to show that Bai Mukta was in possession of the above properties entries from the record of rights were produced at Exhs. 39 and 40. The above entries show that on the basis of the decision in Civil Suit No. 1070 of 1932 the sale deed in favour of Jamnadas Harilal was treated as cancelled and the name of Bai Mukta was entered in the City Survey record as the owner of the properties. Jamnadas Harilal has not been examined as a witness in the suit to show that he had at any time surrendered the possession of the properties purchased by him on 12-10-28. Under these circumstances it cannot be assumed merely on the basis of the aforesaid two entries that the deceased Bai Manek had taken back the possession of those properties after the decision in the above suit. It should further be remembered that the transaction in question was binding to Bai Manek and there is no evidence on record to show that Jamnadas had agreed to treat the above transaction as cancelled. Considering all these circumstances it cannot be said that on the day on which the above Act came into force the properties covered by the above sale deed were possessed by Bai Manek as contemplated by sec. 14(1) of the Act and in that case she cannot be treated to be a full owner of those properties. If any authority is needed on the point it is provided by the decision of the Supreme Court in the case of . In that case the female Hindu who had succeeded to the property as the widow of her husband Ramdeo Singh had transferred the property under two sale deeds. It was found that the sale deeds were not for legal necessity; and the question arose whether in those circumstances when the Act came into force it could be held that the widow was possessed of that property. It was held in the above case that:

"It is well settled that an alienation made by a widow or other limited heir of property inherited by her without legal necessity and without the consent of the next reversioners though not binding on the reversioners is nevertheless binding on her so as to pass her own interest (i e. life interest) to the alienee."

" It was thus made clear in that case that the property was held not to be possessed by the widow because the alienation made by her being binding on her she had no longer any legal right left in that property even in the sense of being in the state of owning it. In view of the above clear decision on the point we hold that Bai Manek had not become the owner of those properties under sec. 14(1) of the Act. We therefore agree with the finding of the learned Judge on the point. This shows that first appeal No. 1112 of 1969 is liable to fail.

(7.) We have already pointed out that five fields in lot No. 2 and 2 fields in lot No. 3 were all along in possession of Bai Manek and as held by the learned Trial Judge Bai Manek had become the full owner of those properties by virtue of sec. 14 of the Act. As observed above plaintiffs had not claimed any relief in respect of lot No. 4 consisting of 12 fields of which also Bai Manek had become the full owner. As regards political pension according to the learned Trial Judge the plaintiffs had failed to establish their case We therefore hold that the learned Trial Judge was quite justified in dismissing the plaintiffs suit in respect of those properties and his finding on the point is not challenged before us.

(8.) We shall now consider as to whether the plaintiffs have any right to the properties which have been bequeathed by deceased Bai Manek to defendants Nos. 1 and 2 by her will dated 22-3-58. Those properties have been shown at serial Nos. 1 to 7 in lot No. 1. As regards properties at serial Nos. 2 and 3 we have already pointed out that they were formerly sold to Jamnadas Harilal on 12-10-28 and that the learned Trial Judge has rightly held that the plaintiffs have a right to those properties. As regards the remaining properties i.e. properties at serial No. 1 and serial Nos. 4 to 7 it may be pointed out that deceased Bai Manek had given them to the defendant No. 1 Chandrakant Hiralal who is her brothers son by an oral gift. She has made a statement to the above effect before the City Survey Officer on 18-1-51. In her above statement Exh. 95 she has stated that the possession of those properties was also handed over to Chandrakant on 4-1-51. Chandrakant also made a statement to that effect before the City Survey Officer on 18-1-51 (vide Exh. 96 The Act however came into force on 17-6-56. It appears that thereafter Bai Manek cancelled the above transaction by making a suitable application in the matter to the City Survey Officer. By her application dated 20-6-56 she informed the City Survey Officer that as her nephew Chandrakant was not willing to accept the above properties in gift the transaction may be treated as cancelled and his name may be removed from the record of rights and her own name may be entered in the suitable register as the owner of the properties. Even Chandrakant gave consent to the mutation as suggested by Bai Manek. He has made it clear in his endorsement below the above application that he was not willing to accept the above properties by way of gift. According to sec. 123 of the Transfer of Property Act the above properties could not have been given in Gift to Chandrakant merely on the basis of the statement made by deceased Manek. The learned Trial Judge therefore held that on the day on which the Act came into force the properties in question were possessed by Bai Manek and hence in view of sec. 14 of the Act she had become the full owner thereof. It is found from the evidence on record that in spite of mutation of the properties in the name of Chandrakant and the version of Bai Manek as regards oral gift the properties continued to remain in her possession.

(9.) According to the evidence of defendant No. 1 the transaction by way of oral gift was never acted upon and he had never collected rents from the tenants on the basis that properties in question belonged to him. Now the property at serial No. 4 in which Bai Manek resided was all along in her possession. The same was the case with the property at serial No. 5 which consisted of a latrine. The evidences of defendant No. 1s witnesses Jagabhai and Hirabhai show that the rent was being paid in the name of Bai Manek. Their evidence is supported by the documentary evidence on the point. According to defendant No. 5 he was paying rent to defendant No. 1 at the instance of Bai Manek. On the basis of his evidence which is not convincing it cannot be held that he was paying rent to the defendant No. 1 Chandrakant on the assumption that he was the landlord. When the evidence of the aforesaid witnesses is considered along with the documentary evidence consisting of entries from the books of accounts relating to the rent it is found that it was Bai Manek who was in possession of the properties in question and that Chandrakant was recovering the rent on her behalf. It should further be remembered that in the year 1956 the above transaction was treated as cancelled by Bai Manek as well as Chandrakant. This shows that on the day on which the Act came into force the properties in question were possessed by Bai Manek.

(10.) It is however argued by the learned advocate for the appellant in first appeal No. 481 of 1967 that as Bai Manek has admitted in her statement in the year 1951 that she had put the defendant No. 1 in possession of the properties in question no reliance can be placed on the evidence adduced by defendant No. 1 to controvert the above position. In this connection it may be pointed out that inspite of what is stated by Bai Manek in her statement in the year 1951 there is ample evidence on record to show that Bai Manek continued to remain in possession of those properties. Under these circumstances it cannot be held merely on the basis of her statement made by her in the year 1951 that she was not in possession of those properties on the day on which the Act came into force. The learned advocate for the appellant has further argued that according to Hindu Law oral gift of immoveable property is valid. It however cannot be disputed that once the Transfer of Properties Act has come into force in the territory in which the properties are situated the above provisions of the Hindu Law would not apply to the gift of such immoveable property as in the present case. Moreover in the present case defendant No. 1 had already relinquished whatever interest he had in the properties in question in favour of Bai Manek and in that aspect of the matter also Bai Manek had become the full owner of the properties in question under sec. 14 of the Act. The above view is supported by the decisions in the cases of Chinnakolandai v. Thanji A I.R. 1965 Mad. 497 [LQ/MadHC/1964/377] and Teja Singh v. Jagat Singh A.I.R. 1964 Punjab 403.

(11.) It is further argued by the learned advocate for the appellant Shri Chhatrapati that whatever may be the position of a widow to inherit her husbands property after the Hindu Womens Rights to Property Act (Act No. XVIII of 1937) came into force widows right in respect of such property was limited before the above Act came into force and as in the present case Bai Maneks husband had died before the Act XVIII of 1937 came into force she could not have become the full owner of the properties in question under sec. 14 of the Act. Looking to the object of sec. 14 of the Act which is to convert into full ownership the properties of a Hindu woman it is difficult to say that the widow who had lost her husband before the Act of XVIII of 1937 had came into force was not entitled to become the full owner of the properties left by him under sec. 14 of the Act according to which 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. In order to achieve the above object it has been specifically laid down in sec. 4(1) of the Act Save as otherwise expressly provided in this Act :

(a) any text rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act."

The above provisions clearly show that by virtue of sec. 14 of the Act any estate held by a Hindu woman as a limited owner is converted into an absolute estate notwithstanding any rule of Hindu Law to the contrary. When both the above sections are read together it becomes evident that for the purpose of application of sec. 14 of the Act no distinction is made between the case of a woman becoming a widow before the date on which the Act No. XVIII of 1937 came into force and that of the woman whose husband dies after that date. In the present case as observed above the properties in question were possessed by Bai Manek as an owner even as a limited heir before the Act came into force and hence she should be held to be the full owner thereof on the basis of the above clear provisions of the Act. If any authority is needed on the point it is provided by the decision of the Supreme Court in the case of Mangal Singh and others v. Smt. Rattno and another A.I.R. 1967 S.C. 1786. The ratio of the decision of the Supreme Court on the point in the above Case is contained in the following head note C of the report:

"Even if a female Hindu be in fact out of actual possession the property must be held to be possessed by her if her ownership rights in that property still exist and in exercise of those ownership rights she is capable of obtaining actual possession of it. The use of the expression possessed by instead of the expression in possession of in sec. 14(1) was intended to enlarge the meaning of this expression. It is commonly known in English language that a property is said to be possessed by a person if he is its owner even though he may for the time being be out of actual possession or even constructive possession. The expression used in sec. 14(1) of the Act was intended to cover cases of possession in law also where lands may have descended to a female Hindu and she has not actually entered into them It would of course cover the other cases of actual or constructive possession. On the language of sec. 14(1) therefore this provision will become applicable to any property which is owned by a female Hindu even though she is not in actual physical or constructive possession of that property. The relevant date on which the female Hindu should be possessed of the property in dispute must be the date on which the question of applying the provision of sec. 14(1) arises. If on that date when the provisions of this section are sought - to be applied the property is possessed by a female Hindu it would be held that she is full owner of it and not merely a limited owner. Such a question may arise in her own life time or may arise subsequently when succession to her property opens on her death. The expression possessed by is not intended to apply to a case of mere possession without title and the legislature intended this provision for cases where the Hindu female possesses the right of ownership of the property in question. Even mere physical possession of the property without the right of ownership will not attract the provisions of this section. The section will however not apply at all to cases where the Hindu female may have parted with her rights so as to place herself in a position where she could in no manner exercise her rights of ownership in that property any longer. A Hindu widow who had entered into possession of land belonging to her deceased husband in 1917 but who was illegally dispossessed by the collaterals of her husband in 1954 brought a suit for possession. During the pendency of suit the Hindu Succession Act 1956 came into force and subsequently in 1958 the widow died and her legal representative was brought on record. Held that the land was possessed by the plaintiff when she died in 1958 within meaning of sec. 14(1) and therefore her legal representative must be deemed to have succeeded to those rights."

At this stage it may be pointed out that even if it is assumed that on the day on which the Act came into force the actual possession of the properties was with the defendant No.1 the transaction by way of oral gift not being legal in view of sec. 123 of the Transfer of Property Act Bai Manek was in a position to recover the possession of those properties from defendant No.1 and in that case on the basis of the above decision of the Supreme Court it should be held that the properties in question were possessed by Bai Manek as contemplated by sec. 14 of the Act. In the case of Punithavalli Ammal v. Minor Ramalingam and another A.I.R 1970 S.C. 1730 it has been observed that :

"The rights conferred on a Hindu female under sec. 14(1) of the Act are not restricted or limited by any rule of Hindu Law. That provision makes a clear departure from the Hindu Law texts or rules."

In view of what is stated above the argument of Shri Chhatrapati to the contrary cannot be accepted.

(12.) As observed above some of the properties have been bequeathed by deceased Manek to defendants Nos. 1 and 2 by her will executed in the year 1958. In this connection it is argued by Shri Chhatrapati for the appellant that as in the previous litigation between her and the reversioners an injunction was issued restraining her from alienating any of the properties inherited from her husband she had no right to bequeathed the above properties by the will in question. It appears that Maneklal Chunilal the husband of the plaintiff No. 1 had filed a suit being Civil Suit No. 1014 of 1928 against Bai Mukta alias Manek and some other persons to challenge the sale deed executed by defendant No.1 Bai Mukta in favour of defendant No.2 of that suit on 24-4-1925 and also to obtain permanent injunction restraining her from alienating immoveable properties of her deceased husband. The above suit was decreed in his favour and the appeal filed by Bai Mukta to the District Court was dismissed on 10-2-1932. As regards the properties sold by Mukta to defendant No.2 of that suit by the above sale deed it has been made clear in the plaint that no relief in respect of those properties is claimed in the present suit. We have therefore to consider the effect of the decree for injunction passed in the above suit on the right of Bai Mukta to bequeathed the properties by a will. In this connection it may be pointed out that before the Act came into force a Hindu widow had only a limited interest in the property inherited by her from her husband and Civil Suit No. 1014 of 1928 was also instituted on the above basis. Under these circumstances it is obvious that she was not entitled to dispose of any of those properties except for the purposes recognized by Hindu Law. It was in view of the above position in law as it existed then that the decree in question was passed in the above suit. According to the injunction issued in the above suit Bai Manek was restrained from transferring the properties belonging to her husband Lalbhai Chunilal. The position however changed after the Act came into force. It cannot be denied that inspite of the above decree Bai Manek continued to be in possession of the properties in question and that the decree did not in any way affect her right or position as an owner of those properties subject to such limitations as were imposed by Hindu Law. This shows that on the day on which the Act came into force the properties in question were possessed by her in her own right as a Hindu widow as a result of which the requirements of sec. 14 of the Act were satisfied and she became the full owner thereof by virtue of that section the consequence of which was that the decree passed in Civil Suit No. 1014 of 1928 ceased to be operative so far as the question of injunction was concerned. When sec. 14 of the Act as interpreted by the Supreme Court in the cases referred to above and other cases all of which need not be mentioned here is read with sec. 4 it becomes evident that the above decree could not come in the way of deceased Bai Manek becoming the full owner of the properties in question under sec. 14 of the Act. The above view is supported by the decision in the case of Lalchand v. Sushila A.I.R. 1962 Calcutta 623. The head note of the report which is relevant for our purpose reads as under:

"In a suit by reversioners against a widow before the passing of the Hindu succession Act 1956 a consent decree was passed the terms of which embodied an under taking by the widow not to alienate or encumber or otherwise deal with the estate so as to prejudicially affect the reversionary interest. In a suit by widow for declaration that the decree had become inoperative after the passing of the Act; Held that after the passing of the Hindu succession Act there was no longer in existence a limited Hindu widows estate in respect of the properties nor any reversionary interest in respect thereof. The widow became the full owner of those properties. There could be no reversion and no reversionary interest in respect of the properties had by her as full owner and the terms of settlement could no longer operated."

We are therefore unable to accept the submission of Shri Chhatrapati that in view of the decree passed in Civil Suit No. 1014 of 1928 deceased Bai Manek was not entitled to bequeathed the above properties by her will. As regards the will in question as pointed out by the learned trial Judge there is ample evidence on record to show that it was executed by Bai Manek according to law in a sound and disposing state of mind and his finding on the point is not challenged before us.

(13.) The learned advocate for the appellant has cited certain authorities of other High Courts in support of his argument that in view of the circumstances of the case Bai Manek could not have become the full owner of the properties in question under sec. 14 of the Act. We have already pointed out that the view that we have taken in the matter is supported by the decisions of the Supreme Court referred to above and hence it is not necessary to refer to those authorities which in our view not being relevant do not in any way support his argument on the point. We therefore find that the learned trial Judge was quite justified in taking the view that Bai Manek being the full owner of the properties in question was entitled to bequeathed them by her will. This shows that first appeal No. 481 of 1967 is also liable to fail. In the result both the appeals are dismissed. The order of this court passed in Civil Application No. 2520 of 1970 in FA. No. 481/68 on 14-10-70 stands vacated. Appointment of Receivers is terminated and they are directed to submit the accounts and reports of the work done by them as receivers to the trial court within two weeks from the receipt by it of the record of the case. The trail court will pass necessary orders according to law on the above reports and also regarding the remuneration to be paid to the receivers.

(14.) As regards costs of the appeals in view of the peculiar circumstances of the case we feel that the proper order would be that parties should bear their own costs. Appeals dismissed.