Chhattisgarh High Court: Sanjay K Agrawal, J., dismissed the second appeal and held that the first appellate Court is absolutely justified in granting the appeal.
The facts of the case are such that the suit property was originally held by Sugriv who died leaving 4 sons namely Mohan, Abhiram, Goverdhan and Jeeverdhan. Mohan died issueless and Abhiram had a son Ghasi who died and is now left with wife and daughter being defendant 1 and 2 respectively. The third son Goverdhan has a son Loknath who filed a plaint on the ground that since Ghasi died in the year 1942 and his wife defendant 1 entered into second marriage in the year 1954-55 in chudi form, therefore, she ceases to have any interest in the suit property and therefore, defendants 1 & 2 have no right and title over the suit property.
The trial Court after appreciating oral and documentary evidence available on record partly decreed the suit holding that clause 29 of the Raigarh State Wajib-ul-arz applies in the present case and defendant 1 had already entered into second marriage in 1954-55 and as such, she would only be entitled for 5 khandi of land for maintenance. In the appeal preferred by defendant 2 questioning the judgment and decree of the trial Court, the first appellate Court allowed the appeal of defendant 2 and held that in the light of Section 14(1) of the Hindu Succession Act, 1956, Kiya Bai – defendant 1, had become full owner of the suit property on coming into force of the Hindu Succession Act, 1956 and therefore the plaintiff is not entitled for any decree and set aside the judgment and decree of the trial Court, feeling aggrieved against which this second appeal has been preferred by the plaintiff. The defendants 3 to 6 are sons and daughter of Jeeverdhan (4th son).
Counsel for the appellants Mr. Neelkanth Malaviya submitted that, the first appellate Court has clearly erred in holding that Section 14(1) of the Hindu Succession Act, 1956 would apply and defendant 1 & defendant 2 have become full owners of the suit property as they remained in possession thereof on the date of coming into force of the Hindu Succession Act, 1956, and further erred in holding that clause 29 of the Raigarh State Wajib-ul-arz would not apply. It was further submitted that the finding recorded by the first appellate Court that Defendant 1 (wife) has not entered into second marriage in 1954-55 is erroneous finding being contrary to record and it is against the admission made by defendant 2 (daughter) and therefore the judgment of the first appellate Court deserves to be set aside.
No one was present for respondent 1 i.e. Defendant 2.
There is overwhelming evidence available on record to state that the fact remains that defendant No. 1 remained in physical position of the suit land even after coming into force of the Hindu Succession Act, 1956 and her limited right, if any, has ripened into absolute title by virtue of Section 14(1) of the Hindu Succession Act, 1956 (for short, ‘the Act of 1956’).
The Court observed that on a careful perusal of Section 14 (1) of Hindu Succession Act, 1956 it is quite vivid that under Section 14(1) of the Act of 1956, to get attracted, the property must be possessed by the female Hindu on coming into force of the Act of 1956. The object of this provision is firstly, to remove the disability of a female to acquire and hold property as an absolute owner and secondly, to convert any estate already held by woman on the date of commencement of the Act as a limited owner, into an absolute estate.
The Court relied on judgment Shyam Narayan Singh v. Rama Kant Singh, 2017 SCC OnLine SC 1985 wherein it was held as under
“5. On an analysis of Section 14(1) of the Hindu Succession Act of 1956, it is evident that the Legislature has abolished the concept of limited ownership in respect of a Hindu female and has enacted that any property possessed by her would thereafter be held by her as a full owner. Section 14(1) would come into operation if the property at the point of time when she has an occasion to claim or assert a title thereto. Or, in other words, at the point of time when her right to the said property is called into question. The legal effect of Section 14(1) would be that after the coming into operation of the Act there would be no property in respect of which it could be contended by anyone that a Hindu female is only a limited owner and not a full owner. (We are for the moment not concerned with the fact that Sub-section (2) of Section 14 which provides that Section 14(1) will not prevent creating a restricted estate in favour of a Hindu female either by gift or will or any instrument or decree of a Civil Court or award provided the very document creating title unto her confers a restricted estate on her). There is nothing in Section 14 which supports the proposition that a Hindu female should be in actual physical possession or in constructive possession of any property on the date of the coming into operation of the Act. The expression ‘possessed’ has been used in the sense of having a right to the property or control over the property. The expression ‘any property possessed by a Hindu female whether acquired before or after the commencement of the Act’ on an analysis yields to the following interpretation:
(1) Any property possessed by a Hindu female acquired before the commencement of the Act will be held by her as a full owner thereof and not as a limited owner.
(2) Any property possessed by a Hindu female acquired after the commencement of the Act will be held as a full owner thereof and not as a limited owner.”
The Court reverting to the facts and relied judgment, observed that Ghasi died in the year 1942 by which his widow Kiya Bai – defendant 1 became the limited owner of his share by virtue of the provisions contained in Section 3(2) of the Hindu Women’s Rights to Property Act, 1937 and after coming into force of the Act of 1956 and by operation of Section 14(1) of the Act of 1956 with effect from 17-6-1956, her limited right in the suit property would blossom into absolute estate as contemplated by Section 14(1) of the Act of 1956 and she would become the absolute owner of the suit property as on date. Defendant 1 had already became limited owner before the coming into force of the Act of 1956 and thereafter, her limited right has became ripened into absolute right.
The objection regarding remarriage of Defendant 1 was rejected as there is neither adequate pleading with regard to the remarriage of Kiya Bai defendant 1 with any person nor there is admissible evidence on record to hold that Kiya Bai had remarried and lost her right to the property as required under Section 6 of the Act of 1856.
The Court thus held “the finding recorded by the first appellate Court that the suit property fell in the share of Ghasi and after death of Ghasi, defendant No.1 remained in physical possession of the suit land and by virtue of Section 3(2) of the Hindu Women’s Rights to Property Act, 1937, defendant No.1 Kiya Bai became the limited owner of the property during her lifetime till the coming into force of the Act of 1956 and after coming into force of the Act of 1956, she became the absolute of the suit property, is correct finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record.”
[Shribachahh Kumar Bhoi v. Sindhu, Second Appeal No.356 of 2001, decided on 28-06-2021]
Arunima Bose, Editorial Assistant has reported this brief.
