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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 09TH DAY OF OCTOBER , 2017
BEFORE THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR
R.S.A. NO.5385/2012 (PAR, DEC & INJ)
BETWEEN: MONAKKA SHINDE W/O SOMANATH SHINDE, AGE: 76 YEARS, OCC: HOUSEWORK, R/O: 1917, KADOLKAR GALLI, BELGAUM.
… APPELLANT
(BY SRI.RAGHAVENDRA SRIVATSA, SRI. PRASHANT F GOUDAR AND SRI. VEERESH R BUDIHAL, ADVOCATES) AND: 1. MARUTI SHINDE
S/O SOMANATH SHINDE, AGE: 71 YEARS, OCC: RETIRED, R/O: FLAT NO. D-2, LA- SANTA MARIA, VASUDEO PEDNEKAR MARG, OPP. BOHIWADA P.S., PAREL, MUMBAI AND ALSO R/O. 1917, KADOLKAR GALLI, BELGAUM
2. RAMESH SHINDE S/O. SOMANATH SHINDE,
AGE: 57 YEARS, OCC: BUSINESS, R/O: PLOT NO.252, BUDA SCHEME,
R
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NEAR HINDALAGA TEMPLE, BELGAUM.
… RESPONDENTS (BY SRI. SACHIN S MAGADUM, ADV. FOR R1) (SRI. GAUTAM SHRIDHAR B BARADWAJ, ADV. FOR R2)
THIS APPEAL IS FILED UNDER SECTION 100 R/W.
ORDER XLII RULE 1 OF C.P.C., 1908., AGAINST THE
JUDGMENT AND DECREE DATED 13.01.2012 PASSED IN
R.A.NO.117/2010 ON THE FILE OF THE PRINCIPAL
DISTRICT JUDGE, BELGAUM, ALLOWING THE APPEAL,
FILED AGAINST THE JUDGMENT DATED 07.01.2010 AND
THE DECREE PASSED IN O.S.NO.370/2004 ON THE FILE
OF THE I ADDL. CIVIL JUDGE (SR.DN), BELGAUM,
DECREEING THE SUIT FILED FOR REOPENING OF
PARTITION, DECLARATION AND INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 10.08.2017, AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED
THE FOLLOWING : -
JUDGMENT
This appeal under Section 100 of C.P.C. is by the
plaintiff in the suit, O.S. 370/2004, on the file of I Addl.
Senior Civil Judge, Belagavi. Since the suit was decreed,
respondent No.1 herein preferred an appeal, R.A.117/2010
to the District Court, Belagavi. The said appeal, having been
allowed and the judgment and decree of the trial Court set
aside on 13.01.2012, the plaintiff, aggrieved by the said
judgment, has filed this second appeal.
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2. By referring to the parties with respect to their
positions in the suit, pleadings are summarized as below:-
3. The plaintiff is the stepmother of defendant No.1
and natural mother of defendant No.2. As the plaintiff states,
she is the second wife of one Somanath Shinde. The 1st
defendant’s mother died when he was a child; Somanath
married the plaintiff after his first wife died and she brought
up defendant no.1 since his childhood, as her own son.
According to plaintiff, even before her marriage, she was
managing agricultural operations; she was growing and
purchasing paddy and processing it into rice for being
marketed. She had good source of income from her
independent business. Besides this, she had been given gold
jewellery at the time of her marriage and other occasions.
Her husband, Somanath was working in Regional Transport
Office, Belagavi and his salary income was just sufficient to
maintain the family and that he had spent a lot for the
medical treatment of his first wife; he had no surplus funds
to purchase property. The plaintiff states that the properties
at items A, B, C, D and E as described in the plaint were
acquired by her and two other items, F and G are the joint
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family properties of her husband. She also states that after
the death of her husband on 26.08.1979, she along with her
son i.e., defendant No.1, obtained loan from the Belagavi
Pioneer Urban Co-operative Bank Ltd., and constructed a
commercial complex at plaint items D, E, F and G properties.
4. It is the further case of plaintiff that defendant
No.1 joined the services of Maharastra Government as a
police officer and that her son i.e., the second defendant
started a printing press at Belagavi. The defendants, very
particularly, the defendant No.1 started behaving
indifferently. They put pressure on her to effect partition of
the suit properties. She did not agree for partition of her
self-acquired property, but the defendants assured of giving
her 1/3rd equal share and also an amount of Rs.50,000/- for
her maintenance. Therefore, she agreed for effecting division,
and thus, on 09.10.2002, the partition deed came into
existence. She was under the impression that she had been
given equal 1/3rd share. The defendants also did not give her
Rs.50,000/-. In the month of May 2004, defendant No.1
tried to dispossess her illegally from her house at Kodalkar
galli, Belagavi. He told her that the said house belonged to
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him exclusively and that she had no right, title or interest in
that house. Immediately, she approached the elderly persons
of her society and came to know that both the defendants
had obtained her thumb impression on the partition deed by
misrepresenting to her that 1/3rd equal share had been given
to her. She came to know about fraud only then, and
therefore, she instituted the suit seeking a declaration that
the partition deed dated 09.10.2002 did not bind her and
that it was null and void as it was obtained fraudulently; for
awarding 1/3rd equal share in the properties and granting
perpetual injunction restraining the defendants from
interfering with her peaceful possession and enjoyment of
suit property.
5. The defendant No.1 in his written statement
disputes the correctness of relationship as has been stated
in the plaint. Although, he admits that he is the stepson of
the plaintiff, he states that the plaintiff is the third wife of his
father. After the death of his mother, Sundara Bai, he states
that his father married one Krishana Bai with whom the
marriage did not last long and it ended in a divorce.
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Thereafter, his father married the plaintiff and at that time,
he was a boy of 8-10 years old.
6. The defendant No.1 disputes that some of the items
of suit property to be her self-acquisitions. He contends that
his mother’s health condition was not so much bad that his
father had to incur huge medical expenses. In fact his
mother was taken care of by her parents during her
sickness. His father, being an employee of R.T.O., Belagavi
had decent income, he was able to manage the family.
Actually, his grandmother Dhudhakka was into the business
of paddy processing and the plaintiff was assisting her. The
plaintiff did not have her own income. Entire family was
being managed by Dhudhakka; she was the head of the
family practically. All the properties were acquired by the
joint efforts of his father Somanath and Dhudhakka. The
plaintiff was fully aware that the suit properties were the
joint family properties. Some of the suit properties were
purchased by his father in the names of his wife i.e., plaintiff
and Dhudhakka only to overcome the procedural hurdles of
obtaining permission from the Government. She voluntarily
agreed for division as she knew very well that she had no
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independent and exclusive right over the properties that
were acquired in her name. The terms of partition were
finalized in the presence of one Monappa Omanna Kesarkar
and S.S.Muchandi. The plaintiff herself opted to receive an
amount of Rs.50,000/- in one lumpsum in lieu of her share
in the family property and she acknowledged the receipt of
this amount. There was no fraud. Defendant No.2 colluded
with the plaintiff in getting the suit filed. He has denied the
allegations against him that he tried to dispossess the
plaintiff illegally from the house where she was staying. He
has stated that the plaintiff voluntarily vacated the house in
the month of May-2004 and handed over the keys to
Monappa Kesarkar.
7. Defendant No.2 has virtually supported the plaintiff
though he has filed separate written statement, in which he
has also contended that the properties at Mumbai should
have been included in the suit.
8. On 19.09.2013 this second appeal was admitted to
consider the following substantial questions of law.
1) Whether the lower appellate Court was
justified in setting aside the judgment and
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decree passed by the trial Court without
considering the manner in which Ex.D1- Deed
of Partition is registered?
2) Whether the lower appellate Court was
justified in holding that no fraud is committed
by defendants 1 and 2 against plaintiff in
execution of Ex.D.1- Deed of Partition wherein
some of the properties subjected to partition
were absolute properties of plaintiff?
9. The trial Court came to conclusion to decree the
suit for the reason that defendant no.1, who adduced
evidence as D.W.1 admitted in his cross-examination that
some of the properties were purchased in the name of
plaintiff, that share allotted to her was not proper and
correct, that only a meager amount of Rs.50,000/- was given
to her and that there was no equitable partition between the
defendants and the plaintiff. Referring to the evidence of
D.W.2 and D.W.3, the trial Court held that though they
stated that there was no fraud or misrepresentation, no
ordinary prudent man would agree to receive only
Rs.50,000/- and just a right of residence when there were
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huge joint family properties. Ascribing these reasons, the
trial Court held that the partition deed dated 09.10.2002
was null and void and ordered for reopening of partition.
10. The First Appellate Court, upon re-appreciation
of evidence, held that the document dated: 09.10.2002 was a
family settlement. To see that differences among the plaintiff
and the defendants were settled, they referred the matter to
Panchayatdars on whom they had confidence. The parties
agreed to the arrangement suggested by the Panchayatdars
and Ex.D.1 was the result of such a settlement. Mere
unequal distribution was no ground to impeach that family
arrangement. The appeal was ultimately allowed.
11. The learned counsel for the appellant/plaintiff
argued that the First Appellate Court has not appreciated
the facts and evidence properly and it gives rise to a
substantial question of law. He argued that this court can
re-appreciate the evidence if the first appellate court has
reached wrong conclusions and drawn erroneous inferences.
He garners support from the decisions of the Supreme Court
in the cases of Krishna Mohan Kul Alias Nani Charan Kul
and another v. Pratima Maity and Others [(2004) 9 SCC
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468] and Pratima Chowdhury v. Kalpana Mukherjee and
another [(2014) 4 SCC 196].
12. The learned counsel for respondent/defendant
No.1 argued that there is no scope for appreciation of
evidence in the second appeal; if the First Appellate Court
has re-appraised the evidence by applying its independent
mind, those findings cannot be interfered with even if they
are found to be wrong.
13. As regards this argument, it has to be stated
that the findings of the First Appellate Court, on facts,
cannot be ordinarily interfered with if the First Appellate
Court is found to have appreciated the evidence
independently. However, if perverse approach in appreciation
of facts and evidence is apparent, it gives rise to substantial
question of law, and there is scope for interfering with facts
even in second appeal.
14. The appellant’s counsel tries to make out a case
by arguing that the First Appellate Court adopted a wrong
approach by throwing the burden on the plaintiff to prove
fraud and misrepresentation in regard to execution of
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partition deed dated 09.10.2002. He argued that the
plaintiff is an aged woman and illiterate. The defendants
were in a position to dominate her will. There existed a
fiduciary relationship between the plaintiff and the
defendants, and therefore, the burden should have been cast
on the defendants to prove that they acted fairly and that
there was no misrepresentation or undue influence or
pressure on the plaintiff. He has placed reliance on 1)
Poosathurai v. Kannappa Chettiar and others (AIR 1920
PC 65), 2) Krishna Mohan Kul Alias Nani Charan Kul
and another v. Pratima Maity and Others [(2004) 9 SCC
468], 3) A. Venkappa Bhatta and others v. Gangamma
and others (AIR 1988 Ker 133), 4) Sher Singh and
others v. Pirthi Singh and others (AIR 1975 All 259), 5)
Guljan Bibi v. Nazir-uddin Mia (AIR 1975 Gau 30), and 6)
Smt. Chinnamma and others v. The Devanga Sangha
and others (AIR 1973 Mysore 338).
15. Needless to say that whenever plaintiff alleges
fraud, misrepresentation and undue influence, the burden is
on him/her to prove this, if he or she seeks to cancel or set
aside a document that has affected his or her interest, this is
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the general principle. But an exception to this general
principle is that though a party to a suit alleges fraud or
misrepresentation or undue influence, the burden lies on the
opponent to prove that the transaction was fair throughout,
if the party who makes allegation of fraud etc., stands in
fiduciary relationship with his/her opponent. Fiduciary
relationship arises where one person places complete
confidence in another in regard to a particular transaction or
one’s general affairs or business. What is the responsibility
of a person who is trusted by another is very well explained
by the Supreme Court in the case of Pratima Chowdhury v.
Kalpana Mukherjee and another, [(2014) 4 SCC 196]. At
page 239, it is observed as below:-
“A person standing in a fiduciary relation to
another has a duty to protect the interest given to
his care and the Court watches with jealousy all
transactions between such persons so that the
protector may not use his influence or the
confidence to his advantage.”
16. This rule is equally applicable to an old,
illiterate, ailing person, who is unable to comprehend the
nature of the document or contents thereof. Even in the
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other decisions cited by the learned counsel for appellant on
this aspect, same is the principle; there is no need to refer to
all the decisions to maintain brevity.
17. While the proposition that the onus is always on
the person in whom confidence is reposed by another to
prove the transaction is fair and conscionable, is well
accepted, to apply this principle wherever it emerges, it is
necessary that existence of such kind of relationship must
first be established. The party complaining of this must show
that he/she reposed absolute faith or confidence in another.
Mere nearness of relationship does not give rise to a
presumption about existence of fiduciary relationship.
Implicit circumstances as to existence of fiduciary relation
may be demonstrated. It must be pleaded first and then
proved. In fact in Pratima Chowdhury (supra), it is further
held in page 239 as below:-
“When the party complaining shows such
relation, the law presumes everything against
the transaction and the onus is cast against the
person holding the position of confidence or
trust to show that the transaction is perfectly
fair and reasonable, that no advantage has
been taken of his position.”
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18. In Subhas Chandr Das Mushib v. Ganga
Prasad Das Mushib and others, (1967) 1 SCR 331, the
Hon’ble Supreme Court has held as below:-
“8. It must also be noted that merely because
the parties were nearly related to each other no
presumption of undue influence can arise. As
was pointed out by the judicial committee of
the Privy Council in Poosathurai V/s.
Kannappa Chettiar and others.
“It is a mistake (of which there are a good many
traces in these proceedings) to treat undue
influence as having been established by a proof
of the relations of the parties having been such
that the one naturally relied upon the other for
advice, and the other was in a position to
dominate the will of the first in giving it. Up to
that point ‘influence’ alone has been made out.
Such influence may be used wisely, judiciously
and helpfully. But whether by the law of India
or the law of England, more than mere influence
must be proved so as to render influence, in the
language of the law, ‘undue’. ”
(underlining by me)
19. Later, the Hon’ble Supreme Court, in the case of
M. Rangasamy v. Rengammal and others (AIR 2003 SC
3120) had an occasion to refer to the judgment in the case of
Subhas Chandr Das Mushib v. Ganga Prasad Das
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Mushib and others to hold that mere existence of close
relationship will not lead to a presumption of undue
influence. It is held as below :
“14. The only issue out of seven which were
framed by the learned Subordinate Judge at the
trial of the suit which has any bearing on this
point Issue No. 5. This reads:
"Is the deed of gift by the grandfather to
defendant 1 valid and true : If so, is the
suit maintainable without setting aside
the deed of gift?"
15. It will be noted at once that even the
expression "undue influence" was not used in the
issue. There was no issue as to whether the
grandfather was a person of unsound mind and
whether he was under the domination of the
second defendant.”
(underlining by me)
20. Reference to a Pratima Chouwdhary’s case
(supra) must be made again for, in this decision three
different stages involved in proving the case of undue
influence has been explained by making a reference to earlier
decision of the Hon’ble Supreme Court in the case of Subhas
Chandr Das Mushib’s case (supra) and of the Privy Council
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in Raghunath Prasad v. Sarju Prasad (AIR 1924 PC 60),
it is held in page 238 as below:-
“6. Sub-Section (3) of the Section throws the burden of
proving that a contract was not induced by undue
influence on the person benefiting by it when two
factors are found against him, namely, that he is in a
position to dominate the will of another and the
transaction appears on the face of it or on the
evidence adduced to be unconscionable.
7. The three stages for consideration of a case of
undue influence were expounded in Raghunath
Prasad v. Sarju Prasad in the following words: (IA
P.105)
‘… In the first place the relations between the parties
to each other must be such that one is in a position to
dominate the will of the other. Once that position is
substantiated the second stage has been reached,
namely, the issue whether the contract has been
induced by undue influence. Upon the determination
of this issue a third point emerges, which is that of the
onus probandi. If the transaction appears to be
unconscionable, then the burden of proving that the
contract was not induced by undue influence is to lie
upon the person who was in a position to dominate
the will of the other.”
(emphasis supplied)
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21. If the present case is examined in the light of the
above principles, the first thing that appears is that the
plaint is not founded on fiduciary relationship between the
plaintiff and the defendants. The plaintiff is the natural
mother of defendant No.2 and stepmother of defendant No.1.
She is illiterate and aged. Yet, there is no pleading in
conformity with Order VI Rule 4 of C.P.C. that the first
defendant was in a position to dominate the will of plaintiff.
She has not pleaded that she had placed absolute confidence
in him. Indeed she has stated that the defendants
misrepresented to her that she would be given 1/3rd equal
share. She has made this allegation against both the
defendants, but it can be seen very clearly that it is against
first defendant she has a grouse. To appreciate the
arguments of appellant’s counsel that the onus was on
defendant No.1 to establish that the transaction of partition
was very fair, the plaintiff should have firstly pleaded that
she had reposed confidence in him and depended on him in
every transaction and secondly proved it. The defendant
No.1, even according to plaintiff, was staying away being a
police officer in the service of Government of Maharashtra. It
is not her case that she was living with him, so that there
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were chances of her being put to his pressure. There is no
pleading and proof. Moreover, the second defendant, her
natural son, has supported the case of plaintiff. That means
the plaintiff was in a position to obtain the advice of her son,
who is not illiterate. The second defendant also states in his
written statement the defendant No.1 played a major role in
preparation of partition deed and put pressure on him. He
has taken a share equal to that of plaintiff, and this he does
not deny. Suit is for partition; every party is interested.
Having supported his mother, and as he has equal share in
the properties, he could have proved or established that the
defendant No.1 played major role and defrauded him and his
mother. If according to 2nd defendant, his mother’s interest
has not been well protected and equal share was not given to
her as was made known to her before execution of the
partition deed, nothing prevented him from entering the
witness box for proving the fraud played by defendant No.1.
It is true that the trial Court raised the issue in this regard
throwing burden on the plaintiff and that the Appellate
Court has also held that the plaintiff has not proved the said
issue. I do not think, that in the circumstances as discussed
above, the First Appellate Court adopted a wrong approach.
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The judgment of the First Appellate Court shows
independent application of mind while re-appreciating the
evidence. There are no perverse findings. Hence, there is no
need to appreciate the evidence again in this second appeal.
22. The learned counsel for the appellant has raised
another point that construction and interpretation of a
document also gives rise to a substantial question of law. In
this regard he referred to judgment of the Hon’ble Supreme
Court in the case of M. B. Ramesh (Dead) by LRs v. K.M.
Veeraje Urs (Dead) by LRs and others, [(2013) 7 SCC 490].
According to the learned counsel, the partition deed, Ex.D.1,
contains serious flaws and illegalities which invalidate the
document. The First Appellate Court has not noticed this
aspect of the matter, and therefore, argued for examining the
document by considering it as a substantial question of law.
In fact, the two substantial questions of law framed by this
court at the time of admission touch this point.
23. The learned counsel, in this regard, argued that
in Ex.D.1, it is mentioned as “in lieu of her share”. This itself
shows deception. The plaintiff has not been given the
legitimate share that she is entitled to. There is no equal
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distribution of the property among the plaintiff and
defendants 1 and 2. Many items of the suit property are self-
acquisitions of the plaintiff. In fact, even after execution of
Ex.D.1, the title deeds of the properties have been with the
plaintiff. If really, Ex.D.1 is a partition deed, which came into
existence with the consent of the plaintiff, she would have
handed over those documents to the defendants. The very
fact that the originals are with the plaintiff shows that
Ex.D.1 was brought into existence by playing fraud on her.
He also argued that D.W.2 and D.W.3 are interested
witnesses.
24. The learned counsel for the appellant further
argued that Ex.D.1 was executed on 09.10.2002. It was
presented for registration on 10.10.2002. There is no
explanation for the delay. Then the said document was
presented by defendant No.1 on 10.10.2002 at about 5.45
p.m. i.e., after closure of the business hours of the Sub-
Registrar’s office. Ex.D.1 does not contain mandatory
endorsements, as required under Sections 52, 58 and 59 of
the Indian Registration Act (for short “the Act”). An amount
of Rs.50,000/- is separately shown as property in Ex.D.1.
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Actually it is not an identifiable property. The said amount is
also not described as being in the form of bank deposits,
securities etc., so as to say that the said property is in the
form of actionable claim. Therefore, the said amount is
unreal and transient property, which cannot be included for
partition along with immovable properties. The Sub-
Registrar should have been examined. Ex.D.1 is in English
and the plaintiff is illiterate. There is no statement by the
defendants or any of the witnesses that the contents of the
document were read over and explained to the plaintiff.
There is violation of Rule 73 of the Karnataka Registration
Rules, 1965 (for short, ‘the Rules’). For all these reasons,
Ex.D.1 is vitiated and it is null and void. In support of his
arguments, the learned counsel has referred to the judgment
of the Division Bench of this Court in the case of
Kenchawwa v. Amagonda (ILR 1988 KAR 1185) and
Nand Lal Kapur and others v. Lakshamma (since
deceased by LRs and others) (ILR 1967 Mysore 217).
25. The learned counsel for the respondent argued
that Ex.D.1 is basically a deed of family settlement. Though
it is captioned as partition deed, if its contents are read, it
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becomes very clear that it is a settlement between the
plaintiff and defendants. In a settlement, there need not be
equal distribution of the properties. If the parties arrive at a
settlement with regard to distribution of the properties of the
family, it should be given into effect and it has sanctity. In
this regard, he relied on the judgment of the Hon’ble
Supreme Court in the case of Kale and others v. Deputy
Director of Consolidation and others (AIR 1976 SC 807).
26. The learned counsel for the respondent further
argued that the First Appellate Court has given due
weightage to the evidence adduced by D.W.2 and D.W.3.
These two witnesses were the friends of the plaintiff’s
husband Somanath Shinde. Their evidence is impartial and
they have clearly stated that the contents of Ex.D.1 were
explained to the plaintiff by the Sub-Registrar. If the cross-
examination of these two witnesses is perused, it becomes
very clear that they have not been impeached. There was no
need to examine the Sub-Registrar. The document cannot be
doubted just because it was presented on the next day of its
execution. Likewise, if the document was registered at 5.45
p.m. on 10.10.2002, that does not get vitiated. The law does
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not prohibit the registration of the document after office
hours. It does not mean that the parties went to Sub-
Registrar’s office at 5.45 p.m. only, they might have gone
earlier and the Sub-Registrar might have received the
document for registration purpose at that time.
27. With regard to payment of Rs.50,000/- to the
plaintiff, the learned counsel for the respondent argued that
though it was not the property of the family, it was the
amount agreed to be given to the plaintiff and that the
plaintiff in fact had received that amount. When it was a
settlement, necessarily the amount to be given to the plaintiff
should be separately shown in the document. For this
reason, the document does not get vitiated. He further
argued that examining the validity of the document from the
angle of Sections 52, 58 and 59 of the Act arises when one of
the parties to the document disputes it. Here, the plaintiff
does not dispute the execution of Ex.D.1. Her only grievance
is that she is not given equal share. Moreover, making an
endorsement by the Sub-Registrar under Section 58(1)(c) of
the Act with regard to payment arises only if payment is
made before him at the time of registration. In this case
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payment was made earlier. Therefore, Section 58(1)(c) of the
Act is not applicable. The plaintiff herself has stated in the
plaint that all the properties belong to joint family and that
in the cross-examination she has clearly admitted that she
was doing rice business with her mother-in-law and
whatever they acquired from the business income became
the joint family property. The plaintiff cannot claim to be an
exclusive owner. If the original documents of the properties
were retained by her after execution of Ex.D.1, it cannot be
said that there was no settlement without the consent of the
plaintiff. Therefore, he argued that Ex.D.1 must be given into
effect.
28. On this point, it is to be held that certainly the
interpretation and construction of a document gives rise to
substantial question of law. When one party puts forward a
document for asserting his right, and the same document is
assailed by another party, to know the true purport of the
document, it should be interpreted. The Hon’ble Supreme
Court in the case of M. B. Ramesh (Supra) has held as
below:-
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“16. We may, however, note in this behalf that
as held by a Constitution Bench of this Court in
Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg.
Co. Ltd., it is well settled that the construction of a
document of title or of a document which is the
foundation of the rights of parties, necessarily raises
a question of law. That apart, as held by a Bench of
three Judges in Santosh Hazari v. Purushottam
Tiwari, whether a particular question is a substantial
question of law or not, depends on the facts and
circumstances of each case. When the execution of
the will of Smt Nagammanni and construction
thereof was the subject-matter of consideration, the
framing of the question of law cannot be faulted.
Recently, in Union of India v. Ibrahim Uddin, this
Court referred to various previous judgments in this
behalf and clarified the legal position in the following
words:”
29. Before interpreting Ex.D.1, it is necessary to
state here that the plaintiff may have stated in the plaint
that she was doing rice business and that from her business
income, she purchased in her name, some of the items of the
suit property. But in the cross-examination, she has clearly
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given answers that her mother-in-law was managing the
affairs of the family during her lifetime, that she (mother-in-
law) was doing rice polishing business and that she (plaintiff)
was also doing business with her (mother-in-law), that the
income derived from the business was kept in the joint
account of the family, and that her mother-in-law used to
keep the money in the joint account of the family and that
from the income of the rice business, they purchased some
of the properties. So these answers of P.W.1, the plaintiff,
make it very clear that she cannot claim exclusive right over
some of the items of the suit property. The First Appellate
Court has considered this aspect of the matter. (Para 14 of
the judgment of the First Appellate Court).
30. Ex.D.1 needs to be examined from the angle of
applicability of Sections 52, 58 and 59 of the Act. Section 52,
58 and 59 of the Act are extracted here as below:-
52. Duties of registering officers when
document presented. - (1)(a) The day, hour and
place of presentation, [the photographs and finger
prints affixed under Section 32A], and the
signature of every person presenting a document
for registration, shall be endorsed on every such
document at the time of presenting it;
: 27 :
(b) a receipt for such document shall be given by
the registering officer to the person presenting the
same; and
(c) subject to the provisions contained in Section
62, every document admitted to registration shall
without unnecessary delay be copied in the book
appropriated therefor according to the order of its
admission.
(2) All such books shall be authenticated at such
intervals and in such manner as is from time to
time prescribed by the Inspector-General.
58. Particulars to be endorsed on documents
admitted to registration. - (1) On every
document admitted to registration, other than a
copy of a decree or order, or a copy sent to a
registering officer under Section 89, there shall be
endorsed from time to time the following
particulars, namely:-
(a) the signature and addition of every person
admitting the execution of the document, and, if
such execution has been admitted by the
representative, assign or agent of any person, the
signature and addition of such representative,
assign or agent;
(b) the signature and addition of every person
examined in reference to such document under
any of the provisions of this Act; and
: 28 :
(c) any payment of money or delivery of goods
made in the presence of the registering officer in
reference to the execution of the document, and
any admission of receipt of consideration, in
whole or in part, made in his presence in
reference to such execution.
(2) If any person admitting the execution of a
document refuses to endorse the same, the
registering officer shall nevertheless register it,
but shall at the same time endorse a note of such
refusal.
59. Endorsements to be dated and signed by
registering officer.-
The registering officer shall affix the date and his
signature to all endorsements made under
Sections 52 and 58, relating to the same
document and made in his presence on the same
day.
31. Perusal of Ex.D.1 shows compliance of Section
52 of the Act being there. Even compliance of Section 58 (1)
(a) & (b) of the Act is very much forthcoming. With regard to
compliance of Section 58 (1) (c) of the Act, it has to be stated
that endorsement by the registering officer is necessary
when payment of money or delivery of goods is made in his
presence. Ex.D.1 shows that amount of Rs.50,000/- was not
paid to the plaintiff in the presence of the Sub-Registrar. It
: 29 :
was paid, probably at the time of execution of Ex.D.1 on
09.10.2002. The plaintiff has acknowledged the receipt of
Rs.50,000/-. Therefore, compliance under Section 58(1)(c) of
the Act was not necessary. The signature of the registering
officer with date can be seen, therefore there is compliance of
Section 59 of the Act.
32. Rule 73 of the Rules states that it is not the duty
of the registering officer to enquire into the validity of a
document presented before him for registration or to attend
to any written or verbal protest against the registration of a
document, if the execution is admitted. But only requirement
is if the executants are unable to read, the document shall
be read out and if necessary, explained to them. If the
document is in a language which the executants do not
understand, it must be interpreted to them. In my opinion,
no doubt a duty is cast on the Sub-Registrar to explain the
contents of the document presented for registration to a
party who is illiterate or one who does not know the
language of the document, but the whole document does not
become vitiated for non-compliance of this. If the party is
aware of the contents of document before it was presented
: 30 :
for registration, non-compliance of Rule 73(i) of the Rules
need not be given any importance. In the present case, the
evidence of P.W.1 shows that even 15 days before the
execution of Ex.D.1, she knew that properties would be going
to be partitioned. The witnesses D.W.2 and D.W.3 have
spoken very clearly in their examination-in-chief itself that
Sub-Registrar explained the contents of the document to the
plaintiff. Particularly on this aspect there is no cross-
examination. They have also stated very clearly that the
entire talks were held in the presence of the plaintiff and the
defendants. They have stated that they were the friends of
Somanath Shinde, the husband of the plaintiff. Their
evidence discloses that they are disinterested in any of the
parties. There is no substance in the argument of the
learned counsel that they are interested witnesses. They
have not been impeached in the cross-examination. It may
be true that Ex.D.1 does not disclose an endorsement by the
Sub-Registrar that he explained the contents of Ex.D.1 to
plaintiff, but when it is very much forthcoming from the
evidence that she knew what was the nature of the
settlement going to take place, absence of endorsement by
the Sub-Registrar does not make the document illegal.
: 31 :
33. It is true that Ex.D.1 was executed on
09.10.2002 and that it was registered at 5.45 pm on
10.10.2002. According to the appellant’s counsel, document
was registered after business hours of the Sub-Registrar’s
office. This cannot be a ground for invalidating the entire
document. There is no bar for registration of a document
after office hours, it is for the registering officer to decide
whether a document can be accepted for registration after
office hours or not. The document shows that the document
was presented at 5.45 p.m. for registration. It means to say
that the parties might have gone to the office much before
that time and for this reason the Sub-Registrar might have
entertained the registration. Section 23 of the Indian
Registration Act makes it very clear that a document has to
be presented for registration within 04 months from the date
of execution. For this reason, if the document was registered
on 10.10.2002, it does not invalidate the document.
34. The two judgments cited by the appellant’s
counsel, viz., Nand Lal Kapur and others v. Lakshamma
(since deceased by LRs and others), and Kenchawwa V.
Amagonda are not applicable to the present case. In the
: 32 :
first judgment, the facts are that defendants No.1 and 2
deposed that the contents of the document were not
explained to them and this evidence was not challenged in
the cross-examination. In the second judgment, the plaintiff
took a specific stand in the plaint and also deposed that she
did not execute the suit document. Same is not the position
here in the present case. As discussed above, the plaintiff
had the knowledge of the document going to be effected and
that she has deposed that she did put her thumb impression
on the document.
35. The finding of the First Appellate Court is that
Ex.D.1 is a family arrangement or settlement. It has relied
on the judgment of the Hon’ble Supreme Court in the case of
Ram Charan Das v. Girija Nandini Devi and others (AIR
1966 SC 323). The clear finding of the First Appellate Court
is extracted here:-
“34. In the present case, the intention was to
see that the differences amongst plaintiff and
defendants were amicably settled, and precisely for
that reason the parties referred the matter to
Panchayatdars, namely, DW.2, DW.3 and one Anant
Joshi. Said persons were those on whom the parties
had confidence. Said persons did not have any
personal interest in the subject matter of the suit.
: 33 :
Those persons thought it fit that the properties be
divided between defendants 1 and 2, and that the
plaintiff be given right of residence in the house which
is situated in the 1st Floor at Kadolkar Galli property.
Their decision was accepted and it is only after the
said acceptance the document Ex.D.1 came to be
executed. Mere allegation that there has been unequal
distribution of share is no ground to impeach such a
family arrangement.”
36. The Hon’ble Supreme Court in the case of Kale
and others (Supra), a judgment cited by the respondent’s
counsel, has held as below :-
“19. Thus it would appear from a review of the
decisions analysed above that the Courts have taken
a very liberal and broad view of the validity of the
family settlement and have always tried to uphold it
and maintain it. The central idea in the approach
made by the Courts is that if by consent of parties a
matter has been settled, it should not be allowed to
be re-opened by the parties to the agreement on
frivolous or untenable grounds.”
37. In the light of the principles laid by the Hon’ble
Supreme Court, if the whole case is examined, I am too of
the opinion that Ex.D.1 is actually a family settlement
: 34 :
though captioned as partition deed. Just because
Rs.50,000/- and right of residence till her lifetime has been
given to plaintiff, it cannot be said that the plaintiff did not
agree for such an arrangement. The evidence is to the effect
that she did agree for such an arrangement. An amount of
Rs.50,000/- given to plaintiff may not be available in the
form of a deposit or a security. But it could be the amount
agreed by defendants No.1 and 2 to be given to the plaintiff.
P.W.1 has been cross-examined by the counsel for defendant
No.2 also. In this cross-examination, a suggestion is given to
P.W.1 that defendant No.2 was ready to give his part of
Rs.25,000/-. So this suggestion implies that each of
defendants 1 and 2 agreed for paying Rs.25,000/- to the
plaintiff. Merely because Rs.50,000/- is shown as a property
in Ex.D.1, the whole document cannot be looked with
askance. This was the arrangement that the plaintiff and
defendants agreed to and it cannot be made ineffective on
the basis of grounds urged by the appellant’s counsel.
38. The appellant’s counsel raises another question
of law alternatively to the points already referred and this
question, which appears to be substantive, touches
: 35 :
applicability of Section 14(1) of the Hindu Succession Act. He
invoked Order XLI Rule 33 of C.P.C. to consider the case of
plaintiff within the parameters of Section 14(1) of the Hindu
Succession Act, in that the limited life interest given to her
under Ex.D.1 in a residential premises actually allotted to
defendant No.1 enlarges into her absolute estate. To
substantiate his argument that even at the stage of second
appeal, the powers under Order XLI Rule 33 of C.P.C. can be
exercised, he has placed reliance on the judgments of the
Hon’ble Supreme Court, namely, K. Muthuswami Gounder
v. N. Palaniappa Gounder [(1998) 7 SCC 327],
C.Cheriathan v. P. Narayanan Embranthiri [(2009) 2
SCC 673], Ramachandra Nathu Ghadage v. Rajaram
Nathu Gadage [2008 (2) Mh.L.J.754] and Umakanta Rao
v. Lalitha Bai (ILR 1988 KAR 3067).
On the point of applicability of Section 14(1) of Hindu
Succession Act, he has referred to the decisions – 1) Dr.
Mahesh Chand Sharma v. Raj Kumari Sharma (Smt) and
others [(1996) 8 SCC 128] and 2) Chellammal and
another v. Valliammal (1990 Mad.L.W. 588).
: 36 :
39. Meeting this argument, the respondents’ counsel
argued that applicability of Section 14(1) of the Hindu
Succession Act must be examined in the light of right of the
plaintiff before 1956. Here, the plaintiff had 1/3rd equal
share in all the suit properties and she voluntarily gave up
her share by taking Rs.50,000/-. Right of residence given to
her is in the property of defendant No.1. Defendant No.2 has
also taken equal half share. Therefore, her case squarely
falls under Section 14(2) and not under Section 14(1) of the
Hindu Succession Act. He also argued that the plaintiff is no
longer residing in the house; she voluntarily vacated the
house as can be gathered from the oral evidence, and when
she no longer possesses the house, she cannot take shelter
under Section 14(1) of the Hindu Succession Act. He has
garnered support from the judgments of the Hon’ble
Supreme Court in the cases of Kothi Satyanarayana v.
Galla Sithayya and others (AIR 1987 SC 353) and Himi
D/o. Lachhmu and another v. Hira Devi widow of Budhu
Ram and others (AIR 1997 SC 83).
40. On these points of arguments, firstly it has to be
stated that there is no impediment for invoking Order XLI
: 37 :
Rule 33 of C.P.C. even at the stage of second appeal. Order
XLII Rule 1 of C.P.C. states that, so far as may be Order XLI
of C.P.C. shall apply to appeals from appellate decrees. If the
facts and circumstances are as such that in the second
appeal, after hearing on the substantial question of law, if it
is possible to come to a conclusion that the relief requires to
be moulded in tune with actual relief that ought to have
been granted, certainly Order XLI Rule 33 of CPC can be
invoked.
41. In Vaddeboyina Tulasamma and others v.
Vaddeboyina Sesha Reddi (AIR 1977 SC 1944), the
Hon’ble Supreme Court has interpreted Section 14(1) and (2)
of Hindu Succession Act, what is held is as below:-
“Sub-Section (1) of Section 14 is large in its
amplitude and covers every kind of acquisition of
property by a female Hindu including acquisition in
lieu of maintenance and where such property was
possessed by her at the date of commencement of
the Act or was subsequently acquired and possessed,
she would become the full owner of the property.
Sub-Section (2) is more in the nature of a proviso or
exception to sub-Section (1). It excepts certain kinds
of acquisition of property by a Hindu female from the
operation of sub-Section (1) and being in the nature
of an exception to a provision which is calculated to
: 38 :
achieve a social purpose by bringing about change in
the social and economic position of woman in Hindu
society, it must be construed strictly so as to impinge
as little as possible on the broad sweep of the
ameliorative provision contained in sub-section (1). It
cannot be interpreted in a manner which would rob
sub-section (1) of its efficiency and deprive a Hindu
female of the protection sought to be given to her by
sub-section (1).
Sub-section (2) must, therefore, be read in the
context of sub-section (1) so as to leave as large a
scope for operation as possible to sub-section (1) and
so read, it must be confined to cases where property
is acquired by a female Hindu for the first time as a
grant without any pre-existing right, under a gift,
will, instrument, decree, order or award, the terms of
which prescribe a restricted estate in the property.
Where, however, property is acquired by a Hindu
female at a partition or in lieu of right of
maintenance, it is in virtue of a pre-existing right
and such an acquisition would not be within the
scope and ambit of sub-section (2), even if the
instrument, decree, order or award allotting the
property prescribes a restricted estate in the
property.”
42. In Chellammal v. Valiammal, (Supra) the
Hon’ble Supreme Court has held as below:-
“15. It is settled law that if a partition deed or
any other instrument only recognised a pre-existing
right of the widow, it is not a case of the widow
: 39 :
'acquiring' the property as contemplated under that
sub-Section and that under such circumstances that
sub-Section would have no application. But when
S.14(1) speaks of a female Hindu acquiring property
before or after the commencement of the Act, the
question is whether the acquisition contemplated
should necessarily be without any preexisting right
whatsoever. The explanation to S.14(1) defines the
word 'property' occurring in that sub-Section as
including both moveable and immoveable property
acquired by a female Hindu by inheritance or devise,
or at a partition, or in lieu of maintenance or arrears
of maintenance etc. The contention on behalf of the
plaintiff-respondent is that in this case, in any event,
there having been a partition (whether the widows
were entitled to enter into a final and absolute
partition or not) in the year 1943, it must be held
that the plaintiff acquired the suit properties under
the said partition as contemplated under S.14(1) and
as she is in possession, her widow's estate became
an absolute estate. However, the contention on
behalf of the appellants is that the plaintiff did not
'acquire' the suit properties under the partition
inasmuch as she along with the first defendant had
inherited a widow's estate in the properties on the
death of their husband. But it should be
remembered that the explanation to S.14(1)
specifically refers to acquisition of properties under a
partition. One can get a share under a partition only
if he or she had some pre-existing right in the same.
It is true that in a partition in a family, a woman may
: 40 :
be allotted certain properties even though she had no
pre-existing right to a share because of her right to
maintenance or arrears of maintenance. But as
already seen the explanation to S.14(1) specifically
refers to property acquired in lieu of maintenance or
arrears of maintenance apart from property acquired
at a partition. What I stress is that the words
'acquired by a female Hindu......... at a partition'
would not refer to properties given to a female Hindu
(even though it might be under a partition deed) in
lieu of maintenance or arrears of maintenance, for
the simple reason, the explanation refers to
acquisition of properties in lieu of maintenance or
arrears of maintenance as distinct from property
acquired at a partition. If a female Hindu does not
have a pre-existing right to a share and she is not
given property in lieu of maintenance or arrears of
maintenance, but still if property is given to her
under a partition deed it would be a case of pure gift.
The mere fact that the property is given to the female
Hindu under a partition deed would not mean that
she did not acquire the property by way of gift and
that she so acquired 'at a partition'. I am of the view
that the words 'acquired by a female Hindu...... at a
partition' do not mean that she should not have had
any pre-existing right in the property.”
43. The learned counsel for appellant has referred to
para 28 of the judgment in the case of Dr. Mahesh Chand
Sharma’s case (Supra). It is as below:-
: 41 :
“28. Now, we come to the third important
event, viz., the enforcement of the Hindu Succession
Act and its effect. The Act came into force in June,
1956. By operation of Section 14 of the said Act, the
right of residence given to Satyawati in the first floor
of the Doctor's Lane house ripened into an absolute
title inasmuch as the said right was given to her in
recognition of a pre-existing right to maintenance
inhering in her. Even under the Hindu Law obtaining
prior to the enforcement of Hindu Adoptions and
Maintenance Act, 1956, the son was under a
personal obligation to maintain his mother and he
was bound to maintain her whether or not he
inherited property from his father. [See Para 548 of
Mulla's Hindu Law at P.552 (16th Edn.)]. Under the
settlement, Satyawati was given not only the right of
residence in the first floor but also a sum of Rs.125/-
per month in cash towards her maintenance. It was
further provided under the settlement that if
Satyawati did not intend to reside in the aforesaid
portion, the first defendant shall pay her Rs.150/-
per month as maintenance instead of Rs.125/- per
month. This clearly indicates that the right of
residence was given to her in lieu of and in
recognition of her pre-existing right to maintenance.
Once this is so, it is sub-Section (1) of Section 14
that applies and not sub-Section (2) vide V.
Tulasamma v. V. Sesha Reddi. It has recently been
held by a Bench of this Court (S.P. Bharucha, J. and
one of us, S.B. Majmudar, J.) in Mangat Mal v. Punni
Devi that a right of residence given for life to a female
: 42 :
Hindu in a property plus a sum of money in lieu of
her right to maintenance ripens into full ownership
on the coming into force of the Act. Accordingly, it
must be held that on the date of coming into force of
the Hindu Succession Act, 1956, Satyawati became
the absolute owner of the first floor of the Doctor's
lane house property.
44. The Hon’ble Supreme Court in Kothi
Satyanarayanan v. Galla Sithayya and others (AIR
1987 SC 353) had an occasion to examine the applicability
of Sections 14(1) and 14(2) of the Hindu Succession Act in
the light of settlement deed. What is held by Hon’ble
Supreme Court is as below:-
“5. The Settlement Deed is an instrument
contemplated under sub-Section (2) and admittedly
it created a restricted estate in favour of the widow.
Therefore, sub-Section (1) of Section 14 would not be
attracted. The submission of the appellant's learned
counsel that the Settlement deed brought the
properties covered by it in exchange or in lieu of
properties unauthorisedly alienated by Ramamurty
and as the widow had full title in the alienated
property, title must be held to have accrued in favour
of the widow in the properties covered by the
settlement cannot be accepted.”
: 43 :
45. In Himi D/o. Lachhmu and another, (AIR
1997 SC 83), following the principles enunciated in V.
Vaddeboyina Tulasamma’s case (supra), the effect of
compromise in a suit was considered for applying Section 14
of the Hindu Succession Act, and what is held in this regard
is as follows:-
“Applying the aforesaid settled legal position to
the facts of the present case it must be held that the
Compromise Decree for the first time created a right
in favour of Bai Utti to remain in possession of the
property belonging to Bai Lachhmu only during her
lifetime and as that right was conferred for the first
time under the Consent Decree and was not in lieu of
any pre-existing right of Bai Utti in Bai Lachhmu`s
property Section 14 sub-Section (2) applied to the
facts of the case and not Section 14 sub- Section (1).
It is difficult to appreciate how the High Court
persuaded itself to hold that as the Will was not
proved on record and as the donees by claiming the
suit properties from the donor Bai Utti were
strangers to the Consent Decree they were not bound
by the admission of Bai Utti in the Consent Decree. It
is obvious that the contesting respondents herein
who were donees of the properties could not claim a
better title to the suit properties than what was
available to the donor Bai Utti. If Bai Utti was not the
full owner of the properties she had no right to gift
away these properties in favour of the respondent-
donees. They could not be said to be strangers to the
: 44 :
Consent Decree, on the contrary, they were claiming
through one of the parties to the Consent Decree,
namely, Bai Utti. The obligations flowing from the
Consent Decree and which were binding to the donor
Bai Utti would necessarily bind the donees, namely,
the respondents who stepped in the shoes of Bai
Utti. They cannot claim any better right than what
the donor had only a personal right to occupy the
properties during her lifetime, she could not have
conveyed any title of the properties to the donees. It
is equally difficult to appreciate how the learned
Single Judge of the High Court could hold that
admissions of the predesor-in-title of the respondent-
donees were not binding on the respondents. For all
these reasons, therefore, it must be held that the
High Court was in error in interfering with the
Decree for possession as passed by the Trial Court
and as confirmed by the First Appellate Court by
holding that Section 14 sub-Section (2) of the Act
was not applicable to the facts of the present case
and Bai Utti had become the full owner of the suit
properties pursuant to the said provision.”
46. On analysis of the principles, it can be said that
if a limited right given to a woman in a property should
enlarge into her absolute estate in accordance with Section
14(1) of the Hindu Succession Act, she must have a pre-
existing right. If a limited right is created independently of
pre-existing right, Section 14(2) of the Hindu Succession Act
: 45 :
comes in operation. If limited right over a property is
conferred on a woman through settlement or compromise,
Section 14(2) applies and not Section 14(1). If a woman
relinquishes her pre-existing right when a settlement or
compromise takes place, and during that settlement or
thereafter, a life estate is created, it amounts to creation of a
right anew in a woman and Section 14(2) is applicable. In
fact, the Hon’ble Supreme Court in the case of Dr. Mahesh
Chand (Supra), has recognized the effect of settlement and
held as below:-
“30. We may pause here and append a note of
explanation. It is true that under the 1942 Will,
the bequest to Satyawati was only for her life and
the bequest to "the legal heirs of the testator”, i.e.,
to the first defendant, vested in him on the death
of the testator, as held by us and for the reasons
assigned hereinbefore. But all this is subject to
the statutory provisions contained in Section
14(1) of the Hindu Succession Act. This statutory
provision supersedes the recitals in the Will. By
virtue of Section 14(1) of the said Act, the limited
estate of Satyawati (given to her under the 1942
Will) would have ripened into absolute estate if
Satyawati had been ‘possessed’ of the entire
Doctor's Lane house on the date of
commencement of the Hindu Succession Act. But
she was not. She had given up her possession
: 46 :
and right to possession over the First floor under
the 1955 Settlement. She was ‘possessed’ of only
the first floor of the house. Secondly, and more
important, first defendant is basing his title to the
Doctor's Lane house on the 1955 settlement. As
stated hereinabove, both Satyawati and the first
defendant arrived at a particular settlement
notwithstanding their respective claims and
contentions. Satyawati never challenged the said
settlement during her lifetime. The settlement
cannot, therefore, be held to be involuntary or
inoperative. Satyawati, in fact, acted for a number
of years as the General Power of Attorney of her
son, the first defendant, and managing his
properties in India. Merely because in these
proceeding, the 1942 Will is held to be the last
and valid Will of Ram Nath, the settlement of
1955 cannot be ignored or brushed aside. It is
also nobody's case that the settlement was not
bonafide or that it was not acted upon. For these
reasons, it must be, and is, held that Satyawati
became the absolute owner only of the first floor
of the Doctor's Lane house - and not of the whole
house.”
(underlining by me)
47. Harking back to the facts of the instant case, by
being a party to Ex.D.1, the plaintiff impliedly relinquished
her right for equal share in the suit properties and received
an amount of Rs.50,000/- from defendants No.1 and 2. As
: 47 :
has been held already, Ex.D.1 is a family settlement. Right of
residence given to plaintiff till her lifetime in a house allotted
to the share of defendant No.1 is by virtue of settlement only
and not in recognition of her pre-existing right. If at all she
needs to be maintained, the primary obligation is on her
natural son i.e. defendant No.1. If defendant No.1, her
stepson, agreed for accommodating her till her lifetime in a
house allotted to him, it is nothing but permitting her to stay
there, and nothing more. Probably, the position would have
been otherwise, if the house was allotted to plaintiff till her
life time, without allotting it to the defendant No.1. In these
circumstances, the plaintiff cannot claim to have become
absolute owner of the house taking shelter under Section
14(1) of the Hindu Succession Act. I have no hesitation in
also expressing my opinion that neither Section 14(1) nor
14(2) of the Hindu Succession Act gets attracted when
defendant No.1 allowed the plaintiff to stay in his house. If
at all, Section 14 of the Hindu Succession Act has to be
applied, it’s sub-Section (2) that can be applied here.
48. From the above discussion, I arrive at a
conclusion that the appeal should fail, accordingly appeal is
: 48 :
dismissed confirming the judgment of the First Appellate
Court. There is no order as to costs.
Sd/-
JUDGE
yan