Res
judicata- The issue of res judicata cannot be raised for the first time in the
second appeal.
Hindu Succession Act, 1956 - Section 14 - Hindu Women’s Right to Property Act, 1937 - Section 3 - Devolution of property - Property of a female Hindu to be her absolute property - Discussed.
HIGH COURT OF ORISSA: CUTTACK
PRESENT: THE HONOURABLE DR. JUSTICE A.K.RATH
Date of judgment:25.02.2019
S.A. No.130 of 2001
From
the judgment and decree dated 14.11.2000 and 30.11.2000 respectively passed by
Sri S.P. Raju, 2nd Addl. District Judge, Cuttack in T.A No.72 of
1994 reversing the judgment and decree dated 30.4.1994 and 13.5.1994 passed by
Sri M.R. Parida, Civil Judge (Junior Division), 1st Court, Cuttack in T.S.
No.57 of 1981.
Gandharba
Swain & another …. Appellants
Versus
Sudarsan Lenka & others …. Respondents
For
Appellants … Mr.Anam Charan Panda, Advocate
For Respondents 1 to 4 and 7 to 12 …
Mr.Alok Kumar Mohanty, Advocate
J U D G M E N T
Dr.
A.K. Rath, J.
This
appeal at the defendants’ instance assails the reversing judgment of the 2nd Additional
District Judge, Cuttack in T.A. No.72 of 1994.
2.
The following genealogy would show the relation
of the parties.
3.
Jagu, predecessor-in-interest of plaintiff nos.1
and 2 and Nalu, plaintiff no.3 instituted suit for declaration that the sale
deed dated 26.12.1969 executed by Maguni Bewa in favour of Gandharb, defendant no.1
is a fraudulent one and confirmation of possession. Case of the plaintiffs was
that the suit properties are the joint family properties of Jagu, father of
plaintiff nos.1 & 2 and Nalu, plaintiff no.3. Jagu died while living joint
with Nalu. After death of Jagu, Nalu and Maguni, widow of Jagu, continued to
remain in joint family. Maguni died in the year 1972. After death of Maguni,
her three daughters and Nalu were in joint possession of the suit land. The
suit land was recorded jointly in thename of Nalu and Maguni in the settlement
as well as consolidation ROR. They used to pay rent. While matter stood thus,
defendant no.1 initiated a proceeding under Sec.145 Cr.P.C., which was
registered as Criminal Misc. Case No.569 of 1980. In the said case, he
disclosed that he had purchased the suit land from Maguni. The suit properties
being the joint family properties, Maguni could not have alienated the same
without consent of Nalu. There was no legal necessity for Maguni to sell the
suit properties. Defendant no.1 had fraudulently obtained the sale deed dated
26.12.1969 without any valid consideration. The sale deed had not been acted
upon. Plaintiffs and defendant no.2 were in joint possession of the suit
properties. Jagu died in the year 1931 before the Hindu Women’s Right to
Property Act, 1937 (‘1937 Act’) came into force. Maguni had no right to sell
the undivided interest of Jagu in the joint family properties. Maguni was an
illiterate woman. By playing fraud, defendant no.1 had obtained the sale deed.
4.
Defendant no.1 entered appearance and filed
written statement pleading, inter alia, that Jagu had separated from his brother,
Gopi. The suit property was not the joint family property. There was severance
of joint family status. Nalu and Maguni were in separate possession of the
lands according to their convenience. In respect of khata no.221, separate note
of possession has been recorded. After death of Maguni, her daughters were not
in possession of the suitproperty. Nalu sold a portion of the family property
to one Bai Behera whose name has been recorded in the settlement R.O.R.
published in the year 1974. Therefore, the joint recording of the names of Nalu
and Maguni in respect of 16 dec. of land is wrong. Nalu sold a specific portion
of the aforesaid plot from the eastern side with boundaries. Nalu and Jagu were
not the members of the joint family. During the life time of Gopi and Jagu,
properties of Naran were separated. Both the brothers were living in separate
mess prior to 1931 settlement operation. There was prior partition between the
co-sharers. Jagu died prior to the year 1931 leaving behind his wife Maguni.
The name of Maguni had been recorded in the settlement R.O.R.. Schedule ‘ka’
property was the property of Jagu. The same was inherited by Maguni prior to
1931 settlement operation. Maguni was a Pre-Act widow. She inherited her husband’s
property. She was in possession of the same after Hindu Succession Act, 1956 (‘1956
Act’) came into force. She became absolute owner of the schedule ‘ka’ property.
Her daughters have no semblance of right, title and interest over the same. To
press her legal necessity, Maguni sold schedule ‘ka’ property to him by means
of a registered sale deed dated 23.12.1969 for a consideration of Rs.400/- and,
thereafter, delivered possession. The suit property is his exclusive property.
In the settlement R.O.R. published in the year 1973, names of Nalu and Maguni
have been wrongly recorded. By order dated20.7.1992, the Commissioner,
Consolidation of Holdings, Orissa in Revision Case No.106 of 1982 held that he
is the absolute owner of the suit property. The order has attained finality. He
is in possession of the suit property peacefully, continuously and with the
hostile animus for more than twelve years and, as such, perfected title by way
of adverse possession.
5.
Stemming on the pleadings of the parties, the
trial court struck eight issues. Parties led evidence, oral and documentary.
The trial court dismissed the suit holding inter alia that Maguni had interest
in the property prior to 1931. She was the absolute owner of the property. She had
right to alienate the same. The sale deed dated 26.12.1969, Ext.A, had been
validly executed. The plaintiffs were not in possession of the suit property.
The plaintiffs filed Title Appeal No.72 of 1994 before the Second Additional
District Judge, Cuttack. The appellate court held that Maguni was a Pre-Act
widow. Her husband died prior to 1931. She had no right to sell property in the
year 1969. The sale by Maguni, a Pre-Act widow, in respect of the suit property
is void one and the plaintiffs being the descendants of Gopi, are not bound by
the said sale. Held so, it allowed the appeal. It is apt to state here that
during pendency of this appeal, respondent nos.5 and 6 died, whereafter their
names have been deleted.
6.
This appeal was admitted on the substantial
questions of law enumerated in ground nos.C, D & F of the appeal memo. The
same are:-
“C.
For that from the Record of Rights the learned lower Appellate Court should
have held that Maguni was in possession of the property as an absolute owner
and that the suit properties were the joint properties of Maguni and Gopi and
not their joint family properties.
D)
For that the learned Lower Appellate Court on the basis of Ext-‘B’, should have
held that Nalu Mohanty, S/o. Jagu Mohanty having sold eastern half of plot
no.708, to Bai Behera and had described in the sale-deed that Maguni was the
owner in possession of the western half of the said plot which clearly establishes
partition between the 2 branches and there was no joint family property.
F)
For that assuming for the sake of argument though not admitting that the sale
deed dtd.26/12/69 (Ext-A) in favour of defendant No.1, is void, yet the learned
Lower Appellate Court should have held that possession of defendant No-1, is
adverse from the date of the void document and no relief can be granted to the
plaintiffs.”
7.
Heard Mr.Anam Charan Panda, learned Advocate on
behalf of Mr.Asoke Mukherjee, learned Senior Advocate for the appellants and Mr.Alok
Kumar Mohanty, learned Advocate for respondents 1 to 4 & 7 to 12.
8.
Mr.Panda, learned Advocate for the appellants
submitted that there was partition of joint family properties. Maguni was in possession
of the property prior to 1931. She sold the said property to her
grandson-defendant no.1 by means of a registered sale deed dated26.12.1969 for
a valid consideration and, thereafter delivered possession. The description of
the property given in Ext.B shows the admission of Nalu with regard to the
separate possession of Maguni. The Commissioner, Consolidation passed an order
under Ext.F holding that the sale deed dated 26.12.1969, Ext.A, is genuine and
defendant no.1 has right, title and interest over the same. In view of the
provisions enumerated in Sec. 14(1) of 1956 Act, Maguni was the absolute owner of
the suit property and she had right to sell the same. To buttress submission,
he placed reliance on the decisions of this Court in the case of Ganapath Sahu
and another v. Smt. Bulli Sahu and others, AIR 1974 Orissa 192, Harabati and
others v. Jasodhara Devi and others, AIR 1977 Orissa 142, Srinibas Jena (And after
him) Madhabananda Jena and others, 1980 ILR-CUT-86, Bhagabat Prasad Das v.
Haimabati Devi and others, AIR 1990 Orissa 70 and Sudam Charan Panda and
another v. State of Orissa and others, 2008 (II) OLR 193.
9.
Per contra, Mr.Mohanty, learned Advocate for
respondents 1 to 4 & 7 to 12 submitted that Jagu died prior to 1931 while
he was living joint with his brother, Gopi. After death of Jagu, his undivided
coparcenary interest devolved on Gopi. Maguni, widow of Jagu, had no interest
in the property of Jagu. The appellate court has rightly held that the property
in question were the joint family properties of Gopi and Maguni. The same was
not partitioned. Maguni was a Pre-Act widow.She had no saleable right. Before
commencement of 1937 Act, a widow had absolutely no share in the Hindu joint
family property, even if she was in possession of the same. Defendant no.1 is
not in possession of the suit property. He placed reliance on the decisions of
the Apex Court in the case of Eramma v. Veerupana and others, AIR 1966 SC 1879,
Madhukar D. Shende v. Tarabai Aba Shedage, AIR 2002 SC 637 and this Court in
the case of Maheswar Barik (dead) after him his L.Rs., Kartik Ch. Barik and
others v. Upendra Barik and others, 2014 (Supp.-I) OLR- 162.
10.
Before adverting into the contentions raised by
the counsel for both parties, it will be necessary to set out the relevant
provision of Hindu Women’s Right to Property Act, 1937 (‘1937 Act’) and Hindu Succession
Act, 1956 (‘1956 Act’).
Sec.3
of 1937 Act reads as follows:
3.
Devolution of property. (1) When a Hindu governed by the Dayabhag School of
Hindu Law dies intestate leaving any property, and when a Hindu governed by any
other school of Hindu Law or by customary law dies intestate leaving separate
property, his widow, or if there is more than one widow all his widows
together, shall, subject to the provisions of sub-section (3), be entitled in
respect of property in respect of which he dies intestate to the same share as
a son:
Provided
that the widow of a predeceased son shall inherit in like manner as a son if
there is no son surviving of such predeceased son, and shall inherit in like
manner, as a son’s son if there is surviving a son or son’s son of such predeceased
son:Provided further that the same provision shall apply mutatis mutandis to
the widow of a predeceased son of a predeceased son.
(2)
When a Hindu governed by any school of Hindu Law other than the Dayabhag School
or by customary law dies having at the time of his death an interest in a Hindu
joint family property, his widow shall, subject to the provisions of
sub-section (3), have in the property the same interest as he himself had.
(3)
Any interest devolving on a Hindu widow under the provisions of this section
shall be the limited interest known as a Hindu Woman’s estate, provided however
that she shall have the same right of claiming partition as a male owner.
(4)
The provisions of this section shall not apply to an estate which by a
customary or other rule of succession or by the terms of the grant applicable
thereto descends to a single heir or to any property to which the Indian
Succession Act, 1925, applies.
xxx
xxx xxx
Sec.14
of 1956 Act reads as follows: 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 courtor under an award where the terms of the gift, will or other instrument
or the decree, order or award prescribe a restricted estate in such property.”
11.
In Mangal Singh and others v. Smt. Rattno (dead)
by her legal Representatives and another, AIR 1967 SC 1786, the Apex Court had
the occasion to interpret the words “possessed by a female Hindu” appearing in
Sec.14 of the Act, 1956. The Apex Court held:
“The
Legislature begins S.14(1) with the words “any property possessed by a female
Hindu” and not “any property in possession of a female Hindu”. If the
expression used had been “in possession of” instead of “possessed by”, the
proper interpretation would probably have been to hold that, in order to apply
this provision, the property must be such as is either in actual possession of
the female Hindu or in her constructive possession. The constructive possession
may be through a lessee, mortgagee, licensee etc. The use of the expression “possessed
by” instead of the expression “in possession of”, in our opinion was intended
to enlarge the meaning of this expression.
It
appears to us that the expression used in S.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
S.14(1), therefore, we hold that 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.”
12.
In the celebrated judgment, the Apex Court in the
case of Vaaddeboyina Tulasamma and others v. Vaddeboyina Sesha Reddi (dead) by
L.Rs., AIR 1977 SC 1944, held :
“We
would now like to summarise the legal conclusions which we have reached after
an exhaustive considerations of the authorities mentioned above on the question
of law involved in this appeal as to the interpretationof S.14(1) and (2) of
the Act of 1956. These conclusions may be stated thus:
(1)
The Hindu female's right to maintenance is not an empty formality or an
illusory claim being conceded as a matter of grace and generosity, but is a
tangible right against property which flows from the spiritual relationship between
the husband and the wife and is recognised and enjoined by pure Shastric Hindu
Law and has been strongly stressed even by the earlier Hindu jurists starting
from Yajnavalkya to Manu. Such a right may not be a right to property but it is
a right against property and the husband has a personal obligation to maintain
his wife and if he or the family has property, the female has the legal right
to be maintained therefrom. If a charge is created for the maintenance of a
female, the said right becomes a legally enforceable one. At any rate, even
without a charge the claim for maintenance is doubtless a pre-existing right so
that any transfer declaring or recognising such a right does not confer any new
title but merely endorses or confirms the pre-existing rights.
(2)
Section 14(1) and the Explanation thereto have been couched in the widest
possible terms and must be liberally construed in favour of the females so as
to advance the object of the 1956 Act and promote the socio-economic ends
sought to be achieved by this long needed legislation.
(3)
Sub-section (2) of S.14 is in the nature of a proviso and has a field of its
own without interfering with the operation of S.14(1) materially. The proviso should
not be construed in a manner so as to destroy the effect of the main provision
or the protection granted by S.14(1) or in a way so as to become totally
inconsistent with the main provision.
(4)
Sub-section (2) of S.14 applies to instruments, decrees, awards, gifts etc.
which create independent and new titles in favour of the females for the first
time and has no application where the instrument concerned merely seeks to
confirm, endorse, declare or recognise preexisting rights. In such cases a
restricted estate in favour of a female is legally permissible and Section
14(1) will not operate in this sphere. Where, however, an instrument merely
declares or recognises a pre-existing right, such as a claim tomaintenance or
partition or share to which the female is entitled, the sub-section has
absolutely no application and the female's limited interest would automatically
be enlarged into an absolute one by force of Section 14(1) and the restrictions
placed, if any, under the document would have to be ignored. Thus where a
property is allotted or transferred to a female in lieu of maintenance or a
share at partition, the instrument is taken out of the ambit of subs.( 2) and
would be governed by Section14(1) despite any restrictions placed on the powers
of the transferee.
(5)
The use of express terms like "property acquired by a female Hindu at a
partition", "or in lieu of maintenance" "or arrears of
maintenance" etc. in the Explanation to S.14(1) clearly makes sub-section
(2) inapplicable to these categories which have been expressly excepted from the
operation of sub-section (2).
(6)
The words "possessed by" used by the Legislature in S.14(1) are of
the widest possible amplitude and include the state of owning a property even
though the owner is not in actual or physical possession of the same: Thus,
where a widow gets a share in the property under a preliminary decree before or
at the time when the 1956 Act had been passed but had not been given actual
possession under a final decree, the property would be deemed to be possessed by
her and by force of Section 14(1) she would get absolute interest in the
property. It is equally well settled that the possession of the widow, however,
must be under some vestige of a claim, right or title, because the section does
not contemplate the possession of any rank trespasser without any right or
title.
(7)
That the words "restricted estate" used in S.14(2) are wider than
limited interest as indicated in Section 14(1) and they include not only
limited interest, but also any other kind of limitation that may be placed on the
transferee.”
Vaaddeboyina
Tulasamma has been followed by the Apex Court in catena of decisions.
13.
In Bai Vajia (dead) By Lrs., v. Thakorbhai
Chelabhai and others, AIR 1979 SC 993, the Apex Court held :
“A
plain reading of sub-sec (1) makes it clear that the concerned Hindu female
must have limited ownership in property which limited ownership would get
enlarged by the operation of that subsection. If it was intended to enlarge any
sort of a right which could in no sense be described as ownership, the
expression “and not as a limited owner” would not have been used at all and
becomes redundant, which is against the well recognised principle of interpretation
of statues that the Legislature does not employ meaningless language.
It
does not in any way confer a title on the female Hindu where she did not in
fact possess any vestige of title. It follows, therefore, that the section
cannot be interpreted so as to validate the illegal possession of a female
Hindu and it does not confer any title on a mere trespasser. In other words,
the provisions of section 14(1) of the Act cannot be attracted in the case of a
Hindu female who is in possession of the property of the last male holder on
the date of the commencement of the Act when she is only a trespasser without
any right to property."
14.
In Raghubar Singh and others v. Gulab Singh and
others, AIR 1998 SC 2401, the Apex Court held :
“It
is by force of Section 14(1) of the Act, that the widow's limited interest gets
automatically enlarged into an absolute right notwithstanding any restriction
placed under the document or the instrument. So far as sub-section (2) of
Section 14 is concerned, it applies to instruments, decrees, awards, gifts
etc., which create an independent or a new title in favour of the female for
the first time. It has no application to cases where the instrument/document
either declares or recognises or confirms her share in the property or her
"pre-existing right to maintenance" out of that property. As held in
Tulasamma's case (supra), sub-section (2) of Section 14 is in the nature of a
proviso and has a field of its own, without interfering with the operation of
Section 14(1) of the Act.”
15.
On an interpretation of Sec. 3 of 1956 Act and
Sec.14 of 1956 Act, the Apex Court in Ram Vishal (dead) By Lrs. and others v. Jagan
Nath and another, (2004) 9 SCC 302, held :
“9.
It is an admitted position that the parties are governed by the Mitakshara
school of Hindu law. As this is an Act of 1937, Manki could make no claim,
under the Act, in the property of Tulsidas who had died in 1930. This is
because Section 4 clearly lays down that the provision of this Act would not
apply to the property of any Hindu dying before the commencement of this Act. Manki
could only claim a right in the property of Sarju (who died in 1952) provided this
Act gave her any rights.
10. In respect of persons governed by the
Mitakshar school of Hindu law Section 3(1) applies only when a Hindu dies
intestate leaving separate property. If a Hindu dies intestate leaving joint
family property then Section 3(2) would apply. Under Section 3(2), it is only
the widow of that person who gets the same interest as that person would have
had. Manki is not the widow of Sarju and can make no claim under Section 3(2).
As the property was joint family property she could make no claim under Section
3(1) also.
11. We are unable to accept the submission
that a proper reading of Section 3(1) and the proviso thereto would show that
Section 3(1) (sic applies to joint) family property. In our view a
plain reading of Section 3(1) makes it clear that it only applies to separate
property. Therefore, the first appellate court was wrong in concluding that
Manki acquired rights under this Act.
xxx
xxx xxx
13.
The final question for consideration is whether a right of maintenance which a
Hindu female has under the customary law could fructify into full ownership
under Section 14 of the Hindu Succession Act.
xxx
xxx xxx
16.
In our view, the authority in Raghubar Singh case can be of no assistance to
the respondent. As has been held by this Court, a pre-existing right is a sine
qua non for conferment of a full ownership under Section 14 of the Hindu Succession
Act. The Hindu female must not only be possessed of the property but she
must have acquired the property. Such acquisition must be either by way of inheritance
or devise, or at a partition or “in lieu of maintenance or arrears of
maintenance” or by gift or by her own skill or exertion, or by purchase or by
prescription. In the present matter, it is nobody’s case that Manki had got
possession of the 1/4th share in lieu of maintenance or in arrears of
maintenance. It was also not their case that there was a partition of the
property and that in such partition, she had been given the property. A mere
right of maintenance without actual acquisition in any manner is not sufficient
to attract Section 14.”
(Emphasis laid)
16.
The parties are governed by Mitakshara school of
Hindu Law. Admittedly, Jagu, husband of Maguni, died prior to 1931 i.e., before
commencement of 1937 Act. Sec.4 of 1937 Act clearly postulates that provision
of the Act would not apply to the property in any Hindu dying before
commencement of the Act.
17.
In Ram Vishal, it was held that Sec.(3) (1)
applies only when a Hindu dies intestate leaving separate property. If a Hindu
dies intestate leaving joint family property, then Sec.3(2) would apply. Under Sec.3(2),
it is only the widow of that person who gets the same interest as that person
would have had. Sec.3(1) has no application in case of joint family property.
On a reading of Sec.3(1) of 1937 Act, it is crystal clear that it only applies
to separate property. As the property was joint family property, Maguni could
make no claim under Sec.3(1) of 1937Act. There is no evidence on record that
the property was partitioned between the co-sharers. A pre-existing right is
sine qua non for conferment of a full ownership under Sec.14 of 1956 Act. A
female Hindu must not only be possessed of the property, but she must have acquired
the property. Such acquisition must be either by way of inheritance or devise,
or at a partition or “in lieu of maintenance or arrears of maintenance” or by
gift or by her own skill or exertion, or by purchase or by prescription. It is
not the case of the parties that there was a partition of the property and in
such partition, Maguni had been given the property. Without actual acquisition
in any manner is not sufficient to attract Sec.14 of 1956 Act.
18.
In Eramma, the Apex Court held that Sec.8 must be
construed in context of Sec.6. Sec.8 is not retrospective.
19.
In Maheswar Barik, this Court held that the
provisions of 1937 Act is not applicable to a widow whose husband died prior to
coming into force of the said Act. A Pre-Act widow has a right of maintenance
in a joint Hindu undivided family and does not have any power of disposition.
20.
The decisions cited by Mr.Panda are
distinguishable on facts. In Ganapath Sahu, the husband of the widow died in a
state ofseparation. This Court held that she was not a maintenance holder, but had
some interest in the property. The case is distinguishable.
21.
In Harabati, this Court held that widow who
inherited life interest in property of her husband and was in possession of the
same on the date of coming into force of Succession Act, she acquires absolute title
to the property under Section 14(1) of the Act.
22.
In Bhagabat Prasad Das, this Court held that a
post Act, 1937 widow succeeds to her husband’s estate without being a coparcener.
The interest that devolves upon her becomes defined and definable in her hands,
though it continues to be a part of the joint family estate. When a property
devolves upon the widow on the death of her husband, her interest unlike a
coparcener’s interest can be predicted with certainty and, therefore, it
carries with it the incident of transferability at the hands of the holder
either limited or absolute. In the instant case Maguni is a Pre 1937 Act widow.
23.
In Sudam Charan Panda, this Court held that any
property possessed by a female Hindu whether acquired before or after commencement
of the said Act shall be held by her as full owner thereof and not as a limited
owner.
24.
In Srinibas Jena, the Full Bench of this Court
held that a decision of right, title and interest which are matters within
their jurisdiction would operate as res judicata.
25.
In Madhukar D.Shende, plea of res judicata was
raised first time in the Apex Court. The same was not raised in the trial
court. No issue was framed. The Apex Court held that res judicata is a mixed question
of fact and law. The same cannot be raised before the Apex Court for the first
time.
26.
In the instant case, no issue was framed with
regard to res judicata. The same was not raised either before the trial court
or appellate court. The issue of res judicata cannot be raised for the first time
in the second appeal. The substantial questions of laws are answered
accordingly.
27.
In the result, the appeal fails and is dismissed.
There shall be no order as to costs.