(R) 1 2(i) 2(ii) 2(iii) 2(iv) 2(v) 3. 4. 5. 6. 7. 8. Anil v. 1. Naresh Ram 2. Dead 3. Dead 4
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S. A. No. 112 of 1999 (R) 1 2(i) 2(ii) 2(iii) 2(iv) 2(v) 3. 4. 5. 6. 7. 8. Anil Ram Parwati Devi Vicky Kumar Nicky Kumari (Minor) Kajal Kumari (Minor) Choti Kumari (Minor) Sushil Ram Ajit Ram Arbind Ram Manju Devi Chandramukhi Devi Kamlloti Devi Versus 1. Naresh Ram 2. Dead 3. Dead 4. Smt. Subhagi Devi .... …. Appellant .... .... Respondents ----- CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ----- : Mr. V.K. Prasad, Advocate : M/s Rajeev Ranjan Tiwary & Ranjit Kr. Tiwary, Advocates For the Appellants For the Respondents ----- C.A.V. ON 02.07.2024 PRONOUNCED ON 19.07.2024 Heard, learned counsel for the parties. This Second Appeal has been filed by the appellants/ defendant against the judgment of affirmance. Parties shall be referred by their original placement in the suit and will include 1. 2. their legal representatives substituted at different stages.
Legal Reasoning
PLAINTIFF’S CASE 3. Plaintiff(s) filed the suit for declaration of title and confirmation of possession and if found to be dispossessed by the defendant over the suit land, then for recovery of possession. 4. The case of the plaintiff is that Sheofal Kahar was the common ancestor and he had raiyati land, and after his death, Bhagwat Kahar and Parmeshwar Kahar came into possession and their names were recorded with cadastral survey records of right. Parmeshwar Kahar died in the year 1938 leaving behind his widow, Basia Kaharin and minor daughter, Chhathani Kaharin. Chhathani Kaharin was married with Belash Kahar and settled in her matrimonial home. 5. Basia died in the year 1950-51 in the state of jointness with her husband’s brother Bhagwat Kahar and she was maintained by him and after death of Bhagwat Khar 1 by the plaintiff. Bhagwat died after three years of the death of Parmeshwar. The plaintiff remained in possession over the disputed land. 6. Sale deed no.378 dated 05.03.65 purported to be executed by vendor, Basiya Kuar in favour of defendant(s) was forged and fictitious document. Being in possession, plaintiff(s) had been paying rent to the State. However, by suppressing notice, the land was mutated in favour of the defendant(s) with respect to the Schedule B land. CASE OF DEFENDANT 7. Case of the defendant is that Sheofal Kahar had no raiyati land and he died prior to survey settlement operation leaving behind his two sons, Bhagwat and Parmeshwar. Both acquired land in Village- Kurkuta and their names were recorded in the survey settlement operation under Khata nos.13, 36 & 56. The two brothers constituted a joint Hindu family. Bhagwat died in the year 1945 and two years thereafter, Parmeshwar also died in the year 1947 leaving behind his widow, Most. Basia died in the year 1967 and she was not maintained by the plaintiff. 8. Most. Basia sold half share in favour of the defendant who happened to be her own maternal grandson by registered sale-deed executed on 05.03.1965. She died in 1967. Basia herself inherited half share in the suit land and she had her own house which she enjoyed in joint possession, till she sold her share in favour of her own daughter’s son in 1965. After the said purchase, defendant came in possession and got it mutated in mutation Case No. 14/1965-66. 9. A partition by metes and bounds of the land took place between plaintiff and this defendant. The said sale followed by possession was very much within knowledge of the plaintiff. 10. Parmeshwar kahar had left behind two daughters Chhathani Devi and Chanarkali Devi. Both were major and the time of the death of their father. Chhatharni was married to Ram Bilas Ram @ Ram Bilas Singh and Chanarkala was married to Ramprit Ram. 11. On the basis of pleadings of the parties, the following main issues were framed: (iii) Is the suit barred by law of limitation and Specific Relief Act? (iv) Whether Parmeshwar Kahar pre-deceased his brother Bhagwat Kahar in the year 1938? (v) Whether sale deed executed by Basia Kaharin in favour of defendant in the year 1965 is valid, genuine and for consideration? 12. Learned Trial Court decreed the suit by recording a finding in favour of the plaintiff : 2 I. As per the record of right (Ext.1) land of khata no.36,56 and 13 were jointly recorded in the name of Parmeshwar and Bhagwat and was therefore joint family property. II. Parmeshwar died in 1938 leaving behind his brother, and widow before coming into force of Women’s Right to Property Act 1937, in force on 14.01.1941 in Chotanagpur Division. III. The entire property of Bhagwat and Parmeshwar devolved by survivorship to the son of Bhagwat and not on the heirs of Parmeshwar. IV. Had Parmeshwar separated from Bhagwat then property would not devolve by survivorship. But the property had not been partitioned. V. After death of Parmeshwar his widow and daughter had not acquired any interest in the property and therefore the sale deed executed in the year 1965 was not valid. 13. First appellate court has concurred with the finding of the learned Trial Court. 14. Second Appeal preferred by the defendants has been admitted to be heard on the following substantial question of law :- “Whether in the facts and circumstances of the case the law of survivorship was applicable?” 15. It is argued by the learned counsel on behalf of the appellants/defendant that the valid right, title and interest passed by registered sale deed executed by Basia Kuar in favour of the defendants on 05.03.1965, was never assailed by the executor of the sale deed. 16. Even if it is presumed that her husband Parmeshwar Kahar died in 1938 before coming into force of Woman’s Right to Property Act, 1937, the interest of Parmeshwar Kahar devolved by survivorship to the plaintiff party, but she continued to be in possession of the said property. After coming into force of the 1956 Act, she became the full owner of the suit property under Section 14 of the 1956 Act. She transferred the property in 1965 in favour of her son-in-law by registered deed of sale who came in possession of it and land was duly mutated in his name. 17. It is argued by the learned counsel on behalf of the defendant that there is concurrent finding of fact regarding the death of Parmeshwar Kahar to have taken place before coming into force of the Woman’s Right to Property Act, 1937. At the said time, widow had only a right to maintenance from the joint family property and had no interest in it. The interest of Parmeshwar Kahar devolved by 3 survivorship over the plaintiff and therefore, Basia had no right to transfer the property by registered sale deed. FINDINGS 18. There is concurrent finding of facts regarding death of Parmeshwar Kahar in 1938, and there is no reason to disbelieve the same. On the basis of finding of facts recorded by the learned Courts below, some dates need to be set out to put the matter in proper perspective. 1938-39 : Parmeshwar Kahar dies 05.03.1965: Basia w/o Parmeshwar kahar executed registered deed of sale in favour of her son-in-law and in the following year the land was duly mutated in the name of the purchaser. 30.07. 1981: Suit filed before the learned Court below for declaration that sale deed was declaration of title and confirmation of possession and recovery if found to be dispossessed. 19. After death of Parmeshwar Kahar his interests in the joint family property devolved on the joint family by survivorship, is beyond any doubt. 20. Basia continued to be the member of joint family and therefore it will be necessary to examine the nature of right and interest of a widow of a coparcener in the joint family after coming into force of the Woman’s Right to Property Act of 1937 and that under Hindu Succession Act 1956. 21. What is the nature of the right granted under Section 3(2) of the 1937 Act to a Hindu widow? This questions fell for consideration in Satrughan Isser Vs. Sabujpari & Others, 1966 SCC online Supreme Court 26 wherein it has been held that a widow of coparcener is invested by the Act with the same interest which her husband had at the time of his death in the property of the coparcenary. She is thereby introduced into the coparcenary, and between the surviving coparceners of her husband and the widow so introduced, there arises community of interest and unity of possession. But the widow does not on that account become a coparcener, though invested with the same interest which her husband had in the property, she does not acquire the right which her husband could have exercised over the interest of the other coparceners. Because of statutory substitution of her interest in the coparcenary property in place of her husband, the right which the other coparceners had under the Hindu law of the Mitakshara School of taking that interest by the rule of survivorship remains suspended so long as the estate enures. The interest acquired by her under Section 3(2) is subject to the restrictions on alienation which are inherent in her estate. She has still power to make her interest 4 definite by making a demand for partition, as a male owner may. If the widow after being introduced into family to which her husband belonged does not seek partition, on the termination of her estate her interest will merge into the coparcenary property. But if she claims partition, she is severed from the other members and her interest becomes a defined interest in the coparcenary property, and the right of the other coparceners to take that interest by survivorship will stand extinguished. If she dies after partition on her estate is otherwise determined, the interest in coparcenary property which has vested in her will devolve upon the heirs of her husband. It is true that a widow obtaining an interest in coparcenary property by Section 3(2) does not inherit that interest but once her interest has ceased to have the character of undivided interest in the property, it will upon termination of her estate devolve upon her husband's heirs. To assume as has been done in some decided cases that the right of the coparceners to take her interest on determination of the widow's interest survives even after the interest has become definite, because of a claim for partition, is to denude the right to claim partition of all reality. 22. From the above, it follows that after coming into force of the 1937 Act a widow of coparcener was invested by the Act with the same interest which her husband had at the time of his death in the property of the coparcenary. She had however no right to alienate the joint family property. 23. Section 14 of the Hindu Succession Act, 1956 made the widow the full owner held by her and not limited owner. Section 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. Explanation.—In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (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 5 instrument or the decree, order or award prescribe a restricted estate in such property. 24. The expression ‘possessed’ in the section is not without any significance and appears to have been deliberately used by the legislature in order to protect the title of the female Hindu after coming into force of the 1956 Act. Before coming into force of the 1956 Act, women had limited ownership which got transformed into full ownership after coming into force of the 1956 Act. Earlier rule of survivorship applied, and on death of the last in male line, his property devolved by survivorship on the other coparcener of the joint family. However, for maintenance if the female was in possession of specific property, she became absolute owner thereof. It has been held in Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva, 1958 SCC OnLine SC 18 10. In the case before us, the essential question for consideration is as to how the words “any property possessed by a female Hindu, whether acquired before or after the commencement of this Act” in Section 14 of the Act should be interpreted. Section 14 refers to property which was either acquired before or after the commencement of the Act and that such property should be possessed by a female Hindu. Reference to property acquired before the commencement of the Act certainly makes the provisions of the section retrospective, but even in such a case the property must be possessed by a female Hindu at the time the Act came into force in order to make the provisions of the section applicable. … In the case of Gostha Behari v. Haridas Samanta [AIR 1957 Cal 557, 559] P.N. Mookherjee, J. expressed his opinion as to the meaning of the words “any property possessed by a female Hindu” in the following words: “The opening words in “property possessed by a female Hindu” obviously mean that to come within the purview of the section the property must be in possession of the female concerned at the date of the commencement of the Act. They clearly contemplate the female's possession when the Act came into force. That possession might have been either actual or constructive or in any form recognized by law, but unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word —possession” in its widest connotation, when the Act came into force, the section would not apply.” Import of ‘possession’ came for interpretation in AIR 1979 Mad 31 R.Narsimhachari Vs Andalammal wherein it was held that possession within the meaning of Section 14(1) of the Act need not be possession in the dictionary meaning of the expression, but in the legal sense of entitlement to secure such possession. It followed the ratio laid down in Import of expression ‘acquired’ in section 14 (1) was elucidated by the Apex Court in Seth Badri Prasad v. Kanso Devi, (1969) 2 SCC 586 at page 589 that the critical words in sub-section (1) are “possessed” and “acquired”. The word “possessed” had been used in its widest connotation 6 and it may either be actual or constructive or in any form recognised by law. The word “acquired” in sub-section (1) has also to be given the widest possible meaning. This would be so because of the language of the Explanation which makes sub-section (1) applicable to acquisition of property by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or by a female's own skill or exertion or by purchase or prescription or in any manner whatsoever. Where at the commencement of the Act a female Hindu has a share in joint properties which are later on partitioned by metes and bounds and she gets possession of the properties allotted to her there can be no manner of doubt that she is not only possessed of that property at the time of the coming into force of the Act but has also acquired the same before its commencement. Further it has been noted in Arunachala Gounder v. Ponnusamy, (2022) 11 SCC 520 According to “Mulla”, Mitakshara recognises two modes of devolution of property, namely, survivorship and succession. The rules of survivorship apply to joint family property, and the rules of succession apply to property held in absolute severalty by the last owner. 25. From the above stated position of law, what follows is that if the widow continued to be in possession of the property which was the part of the joint family property, she became limited owner after 1937 Act and absolute owner thereof after 1956 Act. In the present case after the death of Parmeshwar Kahar, his interest devolved on the joint family by survivorship, but his widow Basia was not altogether divested of interest in the joint family and continued to have right of maintenance under the Shastric law, even before coming into force of 1937 Act. Her interest continued in the joint family property after coming into force of the 1937 Act by which she became limited owner and by 1956 Act, she became the full owner in terms of Section 14 of the 1956 Act. 26. Suit of the plaintiff was decreed only on the ground that Parmeshwar Kahar had died before coming into force of Women’s Right to Property Act and therefore his interest devolved by survivorship on the joint family and not by inheritance on Basia. Plea of the plaintiff that the sale was vitiated by fraud was not proved and no finding has been returned regarding it. Further, initially it was pleaded by the plaintiff that Basia died in 1961 and later on plaint was amended inserting date of death in 1950-51 instead of 1960-61. This pleading was also not backed by evidence and proved before the learned Court below. Burden of proof was on the plaintiff to establish the date of death of Basia to be in 1950-51. 27. There is a presumption of due execution of a registered sale deed which was not rebutted during trial by the plaintiff. On the contrary, execution of sale deed was 7 executed by Basia in 05.03.1965 followed by mutation in 1966-67 has been admitted in para-10 &16 of the plaint. Therefore, learned trial Court was in clear error to have refused to admit into evidence the certified copy of the said sale deed, in the absence of original having not been produced. It is settled law that certified copy of a sale deed is admissible in evidence as a public document (Refer to State of Haryana v. Ram Singh, (2001) 6 SCC 254). 28. Execution of sale deed and subsequent mutation is an act of possession. Defendant continued in possession over the suit property and paid rent without any let or hindrance. Suit is filed in 1981 after about 16 years of the execution of the sale deed. Execution of the sale deed and subsequent mutation is evidence of separate possession of Basia followed by the purchaser defendant. Being in separate possession of her husband’s property, she became the full owner thereof and passed a valid title by registered deed of sale. Thus, this Court is of the view that learned Courts below fell in error in appreciating the principles of survivorship and interest of a widow of a coparcener after coming into force of the Women’s Right to Property Act, 1937 and Hindu Succession Act, 1956. Substantial question of law is accordingly answered in favour of the Appellant/Defendant. Judgment and decree passed by the Court below is set aside. Second Appeal is allowed.
Decision
Pending I.A., if any, stands disposed of. (Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated the 19th July, 2024 AFR / AKT/Satendra 8