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Mali Bewa v. Dadhi Das .
Factual and Procedural Background
This appeal arises from a suit for partition and mesne profits filed by the plaintiff, Mali Bewa (a surviving widow of Jagu Das), against the defendant-respondent, Dadhi Das (an adopted son of the deceased Jagu Das).
Historically, Dadhi Das earlier filed Title Suit No. 244 of 1923 against two widows (including the plaintiff and another widow, Puluni Bewa) and others seeking declaration of his adoption and entitlement over certain properties. In June 1924 that suit was compromised by a decree (referred to as the compromise decree or Ext. 1) which, among other terms, allocated shares between the son and the widows with conditions described in the compromise.
In 1939 Dadhi Das filed Title Suit No. 186 of 1939 against the widows and the superior landlord; by a decree dated April 1, 1940 (Ext. 2) the son's title and possession were declared and it was stated the widows “are entitled to hold half of the property in lieu of their maintenance.” Puluni Bewa later died and, in 1951, the surviving widow Mali Bewa filed Suit No. 283 of 1951 for partition and mesne profits against Dadhi Das.
The son defended on the basis that his title derived from the earlier compromise and that the widows were only entitled to maintenance; alternatively, he claimed the deceased widow's interest had devolved to him. The learned Munsif initially decreed partition in favour of Mali Bewa on November 4, 1952. The son appealed (Title Appeal No. 252 of 1952) and on August 26, 1954 the Additional District Judge allowed the appeal, set aside the decree and remitted the suit for retrial to reconsider partition in light of the pleadings and the compromise decree (the remanding judgment mistakenly cited the wrong earlier suit number).
On remand the learned Munsif on February 19, 1955 again granted partition declaring the parties' shares (eight annas each) and appointed a commissioner. The son again appealed (Title Appeal 38 of 1955) and the learned Additional Subordinate Judge, by judgment dated January 25, 1957, held the partition suit was not maintainable, reversed the Trial Court and dismissed Mali Bewa's suit. This second appeal to the present court followed.
Legal Issues Presented
- How should the compromise decree in Title Suit No. 244 of 1923 (Ext. 1) be interpreted with respect to the nature of the widows' rights (absolute ownership vs. a restricted estate in lieu of maintenance)?
- Whether, on the proper interpretation of the compromise decree, the plaintiff-wife (Mali Bewa) is entitled to a decree for partition of the lands for her share.
- Whether Section 14 of the Hindu Succession Act (and its Explanation and sub-sections) applies to the widow's position and, if so, whether sub-section (1) (full owner) or sub-section (2) (limited owner) applies.
- Whether the remand ordered by the Additional District Judge on August 26, 1954 referred to reconsideration of the compromise decree in Title Suit No. 244 of 1923 despite an erroneous suit number in the remand order.
Arguments of the Parties
Appellant's Arguments (Mali Bewa — represented by Mr. N. Mukherji)
- The compromise decree in Title Suit No. 244 of 1923 (Ext. 1) was correctly interpreted by the learned Munsif on remand to mean that the widows were given a share in lieu of maintenance but with ownership sufficient to permit partition; the Munsif's February 19, 1955 judgment correctly construed Ext. 1.
- The remanding court (Additional District Judge) intended the compromise decree in Title Suit No. 244 of 1923 (Ext. 1) to be reconsidered; the incorrect reference to a different suit number in the remand order was a clerical mistake that did not affect the identity of the decree to be reconsidered.
- The words “in lieu of their maintenance” in the 1939 decree (Ext. 2) do not necessarily make the widows' right merely possessory without title; absolute title can be given in lieu of maintenance and the compromise allowed the widows the right of sale if usufruct were insufficient.
- Reliance on Section 14 of the Hindu Succession Act: because the widow was in possession, she should be regarded as having an absolute interest under the section. The appellant also relied on the Patna decision in Mst. Janki Kuer v. Chhatu Prasad (AIR 1957 Pat 674) and the Explanation to Sec. 14(1) and sub-section (2) to support the argument.
- Cited Sansir Patelin v. Satyabadi Naikani (23 Cut LT 489; AIR 1958 Orissa 75) to show Sec. 14 can give absolute ownership where the female Hindu is in possession.
Respondent's Arguments (Dadhi Das — represented by Mr. K.M. Swain)
- The son's title to the entire property derived from the compromise; the widows were only entitled to maintenance and not to partition or absolute ownership.
- The Patna High Court decision in Mst. Janki Kuer relied upon by the appellant was overruled by a subsequent Full Bench decision in Harak Singh v. Kailash Singh (AIR 1958 Patna 581), which limits the application of Section 14.
- The Hindu Succession Act did not apply to the facts of this case in the manner urged by the appellant, and the point regarding the Act cannot be raised for the first time in a second appeal.
- Alternately, contended that on the death of the other widow (Puluni Bewa) her four annas interest devolved on the son, limiting the surviving widow's share.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mst. Janki Kuer v. Chhatu Prasad, AIR 1957 Pat 674 | Cited by appellant to support an interpretation of Section 14 of the Hindu Succession Act that would grant a widow absolute ownership where she is in possession. | The court noted this decision was relied upon by the appellant, but observed that the respondent contended it had been overruled by a subsequent Patna Full Bench decision; the court considered the competing authorities while determining whether Section 14 applied on the facts and concluded the widow had only a restricted estate under the compromise (bringing the case under sub-section (2) of Section 14). |
| Harak Singh v. Kailash Singh, AIR 1958 Patna 581 (Full Bench) | Patna Full Bench ruling cited by respondent to the effect that Section 14 applies to properties possessed by the female Hindu at the date of commencement of the Act; relied on to challenge the earlier Patna decision (Mst. Janki Kuer). | The court took note of the Full Bench holding and the commencement date of the Act (17 June 1956); the court observed the widow was in possession at the date of commencement, but ultimately analysed the compromise deed's terms and found the widow's right was a restricted estate falling under sub-section (2) of Section 14, notwithstanding the authorities cited. |
| Sansir Patelin v. Satyabadi Naikani, 23 Cut LT 489; AIR 1958 Orissa 75 | Cited by appellant to demonstrate that Section 14 of the Hindu Succession Act can confer absolute ownership on a female Hindu in respect of property which was in her possession. | The court acknowledged this authority and that the plaintiff was in possession along with her son at the commencement of the Act, but after interpreting the compromise decree in the vernacular the court concluded the widows were only given a restricted right (maintenance-based with sale-right if usufruct insufficient) and therefore concluded sub-section (2) rather than sub-section (1) of Section 14 applied. |
Court's Reasoning and Analysis
The court proceeded in the following analytical steps, based only on the material and reasoning contained in the opinion:
- Identification and treatment of remand confusion: The court acknowledged that the Additional District Judge's remand order mistakenly cited the wrong suit number, but held that the only compromise decree relevant to the matter was the compromise in Title Suit No. 244 of 1923 (Ext. 1), and that the remand must be understood to have referred to that decree.
- Examination of the compromise decree (Ext. 1): The court carefully considered the vernacular terms of the compromise. It noted the decree used terms indicating the son would be “entitled” (Satwahan) and “remain in possession” (Dakhalkar) as to eight annas share, and that the widows would have the remaining eight annas share “for the purpose of their maintenance” and remain in possession until their death, meeting maintenance out of the usufruct and with the right to sell part of the property if usufruct proved insufficient.
- Characterisation of the widows' interest: From this close textual reading the court concluded the compromise conferred only a restricted right on the widows — a maintenance-based or limited estate — rather than an absolute, unrestricted ownership as contended by the appellant.
- Application of the Hindu Succession Act, Section 14: The court considered authorities and the date of commencement of the Act (17 June 1956). It concluded that, on the facts and on the proper construction of Ext. 1, the case falls under sub-section (2) of Section 14 of the Hindu Succession Act because the widow had been given only a restricted estate by the compromise decree. Consequently, sub-section (1)'s rule of full ownership for a female in possession did not apply to grant an absolute title here.
- Remedy and effect: Because the widow was entitled to a life-limited interest (eight annas) which she could enjoy during her lifetime, and because the limited interest permitted partition, the court held that she was entitled to a decree for partition of that eight annas share subject to the limited nature of her estate (maintenance out of usufruct; right to sell if necessary). The court therefore upheld the Trial Court's decree of February 19, 1955 subject to the limited character of the widow's interest, set aside the lower appellate court's judgment dated January 25, 1957, and allowed the present appeal.
Holding and Implications
Core Ruling: Appeal allowed.
The court set aside the judgment of the lower appellate court dated January 25, 1957, and upheld the learned Munsif's decree dated February 19, 1955, with the qualification that the plaintiff-widow's interest is a limited estate as provided by the compromise decree (Ext. 1).
Direct consequences for the parties (as stated in the opinion):
- The plaintiff, Mali Bewa, is entitled to an eight annas share in the Ka schedule property which she may enjoy during her lifetime; she may meet her maintenance from the usufruct thereof and, if the usufruct is insufficient, she has the right to sell such portion as may be necessary for her maintenance.
- After the plaintiff's death, the property or that portion remaining will revert to the defendant-son (Dadhi Das).
- Accordingly, the Trial Court's decree for partition in favour of the plaintiff is upheld subject to the limited nature of her title; the lower appellate court's dismissal is set aside.
- Each party shall bear their own costs in this Court.
The opinion confines its outcome to the facts and the construction of the compromise decree; it does not purport to declare or establish any broader new legal precedent beyond application of the compromise's terms and the existing provisions of Section 14 of the Hindu Succession Act as interpreted on these facts.
1. This is the plaintiff's second appeal from a decision of the learned Additional Subordinate Judge Cuttack reversing a decision of the learned Munsif of Kendrapara in a suit for partition and mesne profits filed by the plaintiff against the defendant-respondent.
2. The plaintiff was a widow of one Jagu Das (deceased), his other widow having been one Paluni Bewa (deceased). The defendant-respondent Dadhi Das was an adopted son of the deceased Jagu Das. In 1923 the son Dahi Das filed a suit, — being Title Suit No. 244 of 1923 against the said two widows and eleven other defendants having been the transferees from the widow in respect of certain properties, — for a declaration that the plaintiff in the said suit (Dadhi Das) was the adopted son of deceased Jagu Das and that he was entitled to the said properties being 10 acres 45 decimals mentioned in schedules Ka to Una in the plaint therein and further that the son Dadhi Das was not bound by the alienation made by the widows.
3. In June 1924 the said Title Suit No. 244 of 1923 was compromised between the parties. One of the terms of the said compromise was that the son Dadhi Das was to have -/8/- share and the widows -/8/- share on certain conditions as fully stated in the compromise decree. I shall deal with the said compromise decree hereinafter at the appropriate stage. In 1939, the son Dadhi Das again filed a suit being Title Suit No. 186 of 1939 against the said widows; and the superior landlord under whom they were holding the properties was also made a defendant as defendant no. 3. The reliefs prayed for in the said suit were for declaration that the widows had no right to the properties in the said suit that the record of rights showing the widows as rayats was a mistake and that the son was himself the rayat. On April 1, 1940, the said title suit No. 186 of 1939 was decreed on contest against the widows in favour of the son. By the said decree (Ext. 2), the title of the son was declared over the lands in suit and his possession was confirmed and it was further declared that the widows “are entitled to hold half of the property in lieu of their maintenance.” It was also declared that the son was an occupancy tenant in respect of the lands in suit under the landlord defendant no. 3 and not an under-rayat under the widows. In ??? the widow Pulani Bewa died. In 1951 the surviving widow the plaintiff Mali Bewa filed the ??? suit no. 283 of 1951 against the son for partition and mesne profits.
4. The son in his written statement took the defence that his title to the entire property was by compromise declared in the previous suit and that the widows including the plaintiff Mali Bewa were only entitled to maintenance. Alternatively, the son contended that the other widow Puluni Bewa having died, her four annas interest devolved on him and that the surviving widow the plaintiff Mali Bewa was entitled to four annas interest only.
5. In his judgment dated November 4, 1952, the learned Munsif decreed the suit against the son and held that Mali Bewa is entitled to partition by metes and bounds and declared the respective shares of the parties as mentioned in the said judgment. The son filed an appeal being Title Appeal No. 252 of 1952. On August 26, 1954, the learned Additional District Judge allowed the appeal and set aside the decree for partition and remitted the suit back for retrial for reconsideration of the issue relating to partition with reference to the pleadings and the petition of compromise decree in Title suit No. 186 of 1939. Incidentally, the learned Additional District Judge obviously by mistake gave a wrong number to the compromise decree because the only compromise decree in this connection was the Title suit no. 244 of 1923 as aforesaid and not in Title Suit No. 186 of 1939 as ??? stated by the learned Additional District Judge in his judgment.
6. This mistake however caused some confusion. After remand by the learned Additional District Judge as aforesaid, the suit was reheard by the learned Munsif. In his judgment dated February 19, 1955 after remand the learned Munsif granted a decree for partition declaring that the plaintiff Mali Bewa owned eight annas share in the Ka schedule property and that the son defendant Dadhi Das was entitled to the remaining eight annas interest; and a commissioner was appointed to partition the Ka schedule land as stated in his judgment.
7. The son again appealed from the judgment of the learned Munsif being Title Appeal 38 of 1955 in which the learned Additional Subordinate Judge, in appeal, held that the said suit for partition by the widow Mali Bewa was not maintainable and accordingly the judgment and decree for partition passed by the Trial Court was reversed and the suit filed by Mali Bewa was dismissed. Hence this present second appeal.
8. Mr. N. Mukherji, learned counsel appearing for the appellant widow Mali Bewa, contended that the decree in Title suit no. 186 of 1939 based on the compromise decree in Title suit No. 244 of 1923 was misconceived. According to the learned Counsel the learned Munsif in his judgment dated February 19, 1955 (after remand) correctly interpreted the compromise decree in Title Suit No. 244 of 1923. In fact, Mali Bewa based her claim on the said compromise decree in the said Title Suit No. 244 of 1923 and accordingly the learned Munsif after remand, construed the said compromise decree for determination of the question whether she could demand partition of the suit lands.
9. The learned Munsif in paragraph 10 of his judgment fully interpreted the said compromise decree (Ext. 1) showing that the son would get half the property left by the deceased Jagu Das and the; remaining half was allotted to the widows in lieu of their maintenance and further that the widows would continue to be the owners of the lands referred to therein and possess till their death and maintain themselves out of the usufruct therefrom and in case the usufruct be insufficient for their maintenance they could sell away a portion thereof for their maintenance.
10. The said compromise decree was construed to mean that subsequent to the death of the widows their eight annas share or what would be left behind after sale, it any, would revert to the son of their husband and in case the son would predecease them, his legal representatives would get it. The lower appellate Court however took a contrary view as expressed in his judgment. Mr. N. Mukherji contended that the lower appellate Court's reading and interpretation of the effect of the compromise decree (Ext. 1) was, in his submission, not correct.
11. The learned counsel also contended that the remanding Court in his judgment dated August 26, 1954 intended to refer to Ext. 1 that is to say, this compromise decree in Title suit No. 244 of 1923 to be reconsidered in retrial. Merely because there was a mistake in numbering the suit as aforesaid there could be no doubt with regard to the identity of the only compromise decree, which was in fact intended to be referred to in the judgment of the learned Additional District Judge, remanding the suit for retrial to the learned Munsif. In fact, it was compromise decree in Title suit No. 244 of 1923 which was directed to be reconsidered and not the decree in Title Suit no. 186 of 1939 because there was no compromise decree in the 1939 suit.
12. Furthermore, the judgment in the 1939 suit (Ext. 2) was based on the compromise decree in the 1923 suit (Ext. 1). The learned Counsel also urged that merely because the learned Munsif in his judgment in Title suit No. 186 (Ext. 2) has used the words ‘in lieu of their maintenance’ they however do not make the right of the widows a ??? right only without any title, because absolute title can also be given in lieu of maintenance. In the compromise decree of 1923 (Ext. 1) it is said that eight ??? is given to the widows in lieu of their maintenance with a right of sale, if the usufruct be not sufficient for their maintenance.
13. It was contended on behalf of the plaintiff Mali Bewa that had it been that only possessory right was given to the widows, this right of sale would not have been given to them. In this context the learned Counsel relied on Section 14 of the Hindu Succession Act (Act XXX of 1956). It was contended that in the present case there was no restriction of user and accordingly the widow had absolute interest in the property. As to the applicability of Section 14 of the Hindu Succession Act to the present case, the learned Counsel relied on a decision of the Patna High Court in Mst. Janki Kuer v. Chhatu Prasad, (S) AIR 1957 Pat 674. While pursuing his point under the Hindu Succession Act, the learned Counsel drew my attention to the Explanation to Sec. 14(1) as also sub-section (2) of the section.
14. His point was that the widow Mali Bewa by the said compromise decree in Title Suit No. 244 of 1923 (Ext. 1) had acquired the property in lieu of maintenance and that by the said decree no restricted estate was given to her and according to him the application of the Explanation to Sec. 14 of the Act was attracted. As to the meaning of the word “possession” in Sec. 14, my attention was drawn to a judgment of this Court in Sansir Patelin v. Satyabadi Naikani, 23 Cut LT 489 : (AIR 1958 Orissa 75) where it was held that Sec. 14 of the Act has given the female owner an absolute ownership in respect of property which was in her possession. In the present case the plaintiff widow was in possession of her husband's property with her adopted son.
15. Mr. K.M Swain, learned counsel appearing for the son-respondent contended that the decision of the Patna High Court in (S) AIR 1957 Pat 674 cited above was overruled by a subsequent decision of a Full Bench of the Patna High Court in Harak Singh v. Kailash Singh, AIR 1958 Patna 581 and submitted that the Hindu Succession Act did not apply to the facts of this case and further that the point cannot be raised here in second appeal for the first time. The Patna Full Bench held that Sec. 14 only applies to properties possessed by the female Hindu at the date of the commencement of the Act and that is not correct to say that the expression “possession by a female Hindu” refers to a point of time before the commencement of the Act because such an interpretation would be inconsistent with the expression “shall be held by her as full owner” occurring in the latter part of the section. The Act came into force on June 17, 1956.
16. The widow was in possession along with her son at the date of the commencement of the Act as aforesaid. The lower appellate court passed his judgment on January 25, 1957. Therefore assuming that the Act applied to this case, the question to be decided is what is the position of the widow under the Act. In this context I have carefully considered the vernacular context of the compromise terms of the decree made in Title Suit No. 244 of 1923 (Ext. 1). The decree expressly provides that the son was to be entitled (Satwahan) and remain in possession (Dakhalkar) in respect of eight annas share in the property.
17. By the said decree the widows had also accepted the son as adopted son of Jagu Das. It was further provided that the widows would get the remaining eight annas share for the purpose of their maintenance and that they would remain in possession (Dakhalkar) thereof till their. We time and out of the usufruct of the said properties they would meet their maintenance and if for any reason the usufruct of the said properties be not sufficient then they would be entitled to sell such portion of the said properties for their maintenance as may be necessary. Reading this document it is quite clear that only restricted right was given to the widows and not absolute right as contended on behalf of the widow.
18. In this reading of the compromise decree ‘Ext. 1’, it appears that the case directly falls under sub-section (2) of Section 14 of the Hindu Succession Act. That is to say, the widow having acquired by the said decree only a restricted estate in the property, she would not be entitled to the benefit of sub-section (1) of S. 14 of the Act which gives a widow the right of a full owner and not limited owner. I, therefore, find that the plaintiff widow is entitled to eight annas share in the property which she would enjoy during her life time out of the usufruct of which she would meet her maintenance and in case the usufruct be not sufficient then she would be entitled to sell such portion of the property for her maintenance as may be necessary. After the widow's death, the son will get it.
19. The widow, — thus entitled to the property though as a limited owner as aforesaid, — is entitled to partition of the property as claimed by her. In this view of the matter I hold that the plaintiff is entitled to a decree for partition of her eight annas share which she would enjoy during her life time and out of the usufruct of which she would meet her maintenance and in case the usufruct be not sufficient for meeting her maintenance then she would have the right to sell such portion of the property as may be necessary.
20. After the plaintiff widow's death the property or such portion thereof,—as may be left behind by her,—will revert to the defendant son. Subject to this modification as aforesaid as to the plaintiff-widow's limited interest as stated in terms of the said compromise decree in Title Suit No. 244 of 1923 (Ext. 1), I uphold the decision of the learned Munsif dated February 19, 1955. Accordingly I set aside the decision of the lower appellate Court below dated January 25, 1957 and allow this appeal.
21. Each party to bear own costs of this Court.
IC/H.G.P
22. Appeal allowed.
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