A WILL EXECUTED AFTER 1956 WITH LIMITED RIGHTS - THEN THE WILL FALSS UNDER SEC.14[2] OF HINDU SUCCESSION ACT - THEREFORE NO ABSOLUTE RIGHTS CONFERRED ON DONEE - THEREFORE HER DAUGHTER CAN NOT ALIENATE THE SAME NOR GET ANY COLLUSIVE DECREE. THEREFORE THE QUESTION OF BONAFIDE PURCHASED DID NOT ARISE
Will dated 15.4.1968 by one Tulsi Ram, who passed away on 17.11.1969 -. The Will aforesaid bequeathed the testator’s estate to his son, the appellant herein, and his second wife Ram Devi (the first wife being deceased whose progeny is the appellant).- Land measuring 175 kanals and 9 marla, a residential house and a Bara is Village Jundla, Haryana was bequeathed half and half to the appellant and Ram Devi.- However, the nature of bequeath was different for the two. - The appellant/son was given absolute ownership rights to the extent of his share of land and property whereas Ram Devi/second wife, was given a limited ownership for her enjoyment during her lifetime with respect to her share of the land with a specific provision that she could not alienate, transfer or create third party rights over the same. Thereafter the property was to vest absolutely in the appellant after her lifetime. - apex court held that The testator in the present case, Tulsi Ram, had taken all care for the needs of maintenance of his wife by ensuring that the revenue generated from the estate would go to her alone. He, however, wished to give only a limited lift interest to her as the second wife with the son inheriting the complete estate after her lifetime. We are, thus, of the view that it would be the provisions of Section 14(2) of the said Act which would come into play in such a scenario and Ram Devi only had a life interest in her favour. - the daughter of Ram Devi by seeking what is undoubtedly a collusive decree when she had no interest in the property. She then sought to create lease 22 interest in the property. Both these aspects were held against Ram Devi and her daughter right till the Supreme Court in the first round of litigation clearly opining that Ram Devi had only a limited estate in the property. Despite having lost right till the Supreme Court, the sale deeds were intervening factors even during the pendency of the litigation which went against the vendor Ram Devi -
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.1543-1544 OF 2019
JOGI RAM … Appellant
Versus
SURESH KUMAR & ORS. …Respondents
J U D G M E N T
SANJAY KISHAN KAUL, J.
Background:
1. The consequences of a testamentary disposition by a Will dated
15.4.1968 by one Tulsi Ram, who passed away on 17.11.1969 is still
pending resolution before us after half a century.
2. The Will aforesaid bequeathed the testator’s estate to his son, the
appellant herein, and his second wife Ram Devi (the first wife being
deceased whose progeny is the appellant). Land measuring 175 kanals
and 9 marla, a residential house and a Bara is Village Jundla, Haryana
was bequeathed half and half to the appellant and Ram Devi. However,
the nature of bequeath was different for the two. The appellant was
1
given absolute ownership rights to the extent of his share of land and
property whereas Ram Devi was given a limited ownership for her
enjoyment during her lifetime with respect to her share of the land with a
specific provision that she could not alienate, transfer or create third
party rights over the same. Thereafter the property was to vest absolutely
in the appellant after her lifetime.
3. It appears that the properties were enjoyed as per the Will after the
demise of Tulsi Ram in 1969 for quite a few years till the first round of
litigation began – Bimla Devi, daughter of Ram Devi instituted a suit in
the Court of Sub Judge 1st Class, Karnal for declaration against her
mother, Ram Devi, claiming that she had become owner in possession of
half share of the land willed to Ram Devi by Tulsi Ram, which resulted
in a decree being passed on 15.1.1986. It may be stated at this stage
itself that by very nature the suit was collusive. On the decree being
passed Bimla Devi executed a lease deed in favour of one Amar Singh on
17.6.1986 in respect of land falling within Ram Devi’s limited share.
This prompted the appellant to file a Civil Suit No.94/1993 for
declaration and permanent injunction before the Senior Sub Judge,
Karnal impleading Ram Devi, Bimla Devi and Amar Singh. The
2
gravamen of the suit was that Ram Devi having only a limited life
interest the decree of declaration by Bimla Devi had been obtained
through collusion and the lease deed was a bogus document which would
not have any effect upon the rights of the appellant to inherit the property
after the demise of Ram Devi. The suit was, however, contested only by
Ram Devi with the other two defendants being proceeded ex parte. The
suit resulted in a judgment and decree dated 27.9.1995 to the effect that
the appellant having proved the Will executed by Tulsi Ram, the case
clearly fell under Section 14(2) of the Hindu Succession Act, 1956
(hereinafter referred to as the ‘said Act’) which was in the nature of an
exception as it precluded the benefits of Section 14(1) of the said Act to
accrue with respect of a property inter alia inherited under a Will with a
restricted right in such a property. Thus, it was concluded that the limited
estate of Ram Devi could not be expanded to an absolute estate and the
decree of the Civil Court dated 15.1.1986 and the lease deed dated
17.6.1986 were consequently set aside.
4. It may be noted that even though the suit was pending in the
interregnum period Ram Devi executed two sale deeds dated 29.4.1993
qua land measuring 38 kanals 14 marlas in favour of one Dharam Singh
3
and 11 kanals 3 marlas in favour of Kanta Devi. Another sale deed was
subsequently executed on 8/9.6.1998 in favour of Baldeva for land
measuring 40 kanals 8 marlas. All these were part of the suit land. The
latter was during the pendency of the appeal by Ram Devi before the
Additional District Judge, Karnal which appeal was also finally
dismissed vide judgment dated 15.4.1999. Insofar as the appeal qua
Baldeva was concerned, that was also dismissed due to inability of Ram
Devi to serve notice on Baldeva despite sufficient opportunity. In the
third round of the same litigation Ram Devi’s second appeal under
Section 41 of the Punjab Courts Act, 1918 (hereinafter referred to as the
‘PC Act’) also met the same fate vide judgment dated 23.10.2001 in RSA
No.1700/1999. The whole matter ought to have received a quietus
thereafter as the Special Leave Petition was also dismissed vide order
dated 29.4.2002. It may be noticed that in the interregnum period Ram
Devi also passed away on 26.8.1999. This is as far as the story of the
first round of litigation.
5. The second round of litigation began when the appellant instituted
a Civil Suit No.256/157 of 2008 before the Civil Judge, SD, Karnal for
declaration and injunction challenging the sale deeds executed by Ram
4
Devi. This suit was also decreed vide judgment and decree dated
13.8.2009 in favour of the appellant.
6. Once again the gravamen of the decision of the learned Civil Judge
was the earlier judgment and decree dated 27.9.1995 opining that Ram
Devi had only a limited ownership right and could not have alienated the
suit property. There being no change in law, the previous decree in
favour of the appellant was held binding among the parties and their
successors-in-interest. The sale deeds executed, thus, found to be
unsustainable being against the decree of the lower court. Once again,
opinion was the same as to the construction of Sections14(1) and 14(2) of
the said Act as any contrary interpretation would tantamount to
proscribing the right of a Hindu to execute a Will as envisaged under
Section 30 of the said Act. The court granted a decree of possession to
the appellant being the rightful owner of the same. The court also noted
that the title of the purchasers could not be better titled than Ram Devi
possessed as they had acquired their rights from her and could not even
be considered bona fide purchasers for value in view of the history of the
litigation.
7. Kanta Devi, legal heirs of Baldev and Dharam Singh then
5
preferred an appeal against the said judgment dated 13.8.2009, which
was dismissed vide judgment dated 7.10.2010 in Civil Appeal
No.56/2009. That gave rise to the second appeal before the High Court,
being RSA No.210/2011.
8. The respondents pleaded before the High Court by relying upon
the judgment of this Court in V. Tulasamma & Ors. v. Sesha Reddy
(Dead) by LRs.1
to contend that Ram Devi’s right over the suit property
granted under the Will had crystallised into an absolute ownership right
making her competent to transfer the same. The subsequent judgment of
this Court in Jupudy Pardha Sarathy v. Pentapati Rama Krishna &
Ors.2
was also referred to in support of the said proposition. The decree
in the first round of litigation was contended not to operate as res
judicata in the second suit as the judgment in the earlier suit was contrary
to the law prevailing at the time of their consideration (Shakuntla Devi
v. Kamla & Ors.3
which referred to Mathura Prasad Bajoo & Ors. v.
Dossibai N.B. Jeejebhoy4
). Without prejudice to the same the
respondents also claimed to be bona fide purchasers for value and, thus,
were protected under Section 41 of the Transfer of Property Act, 1882
1
(1977) 3 SCC 99
2
(2016) 2 SCC 56
3
(2005) 5 SCC 390
4
(1970) 1 SCC 613
6
(hereinafter referred to as the ‘TP Act’).
9. On the other hand the appellant contended that the doctrine of res
judicata would apply in view of the earlier adjudication as the matter of
Ram Devi having a limited estate has been upheld right till the Supreme
Court. The appellant had also taken possession of the suit property and
execution of the judgments was under challenge before the High Court.
10. The fate of the respondents after the amendment turned favourable
as they succeeded before the High Court in terms of the impugned
judgment dated 22.2.2018. The discussion in the impugned judgment
revolves around three aspects:
(a) Whether the first round of litigation operate as res judicata for
the appeal.
(b)Whether Ram Devi’s limited right over the suit property
conferred through the Will had crystallised into an absolute
right under Section 14(1) of the said Act.
(c) Whether the High Court was mandated to frame a substantial
question of law in deciding the second appeal.
11. On the first aspect the High Court found that the factual scenario
and legal principles enunciated in Shakuntla Devi5
case would be
5
(supra)
7
squarely applicable to the facts of the present case. In the factual
scenario of that case, one Uttamdasi was the successor of the suit
property and had alienated the same through a sale deed and gift deed.
The daughter of Uttamdasi, Takami, successfully challenged the
alienation and the decree became final. Uttamdasi thereafter executed a
Will with respect to the same suit property. Tikami instituted a suit for
possession on the basis of a previous declaratory decree wherein she had
been held to have ownership right of the property. This Court opined that
the case would constitute as a principle of res judicata. The first
declaratory decree in favour of Tikami was granted on the basis of a
limited right held by Uttamdasi in the suit property. By the time the
second decree was tried, the Supreme Court in V. Tulasamma & Ors.6
case had declared the law under Section 14 of the said Act to the extent
that the beneficiary under a Will such as Uttamdasi with limited rights
would become the absolute owner of the same. Since the law had been
altered since the first declaratory decree, the same would not operate as
res judicata in a decree for possession. The judgment in V. Tulasamma
& Ors.7
case was not retrospective but a declaratory decree simpliciter
6
(supra)
7
(supra)
8
would not attain finality if it is used in a future decree of possession and
it would be open for a defendant in a future suit for possession to
establish that the earlier declaratory decree was not lawful. Thus, the
respondents were held entitled to challenge the appellant’s possession of
the suit property.
12. On the second aspect the High Court has taken a view that V.
Tulasamma & Ors.8
case had sufficiently resolved any uncertainty under
Sections 14(1) & 14(2) of the said Act. A Hindu female has a right to
maintenance on a property if a charge was created for her maintenance,
the right would become legally enforceable irrespective, even without a
charge, the claim for maintenance was a pre-existing right so that any
transfer declaring such right would not confer a new title but merely
confirm pre-existing rights and Section 14(2) of the said Act cannot be
interpreted in a manner that would dilute Sections 14(1) and 14(2) of the
said Act. Only in a scenario where the instrument created a new title in
favour of the wife for the first time, would Section 14(2) would come
into play and not where there was a pre-existing right. Ram Devi was
held to have been conferred with a limited right which would translate
into an absolute right over the suit property as it was only a confirmation
8
(supra)
9
of the pre-existing right over the property.
13. On the last aspect it was held that in view of the decision of this
Court in Pankajakshi (dead) through LRs & Ors. v. Chandrika &
Ors.9
, the High Court was not required to frame a substantial question of
law while deciding the plea as Section 97(1) of the Code of Civil
Procedure, 1908 (hereinafter referred to as the ‘said Code’) would have
no applicability to the PC Act.
14. On the appellant approaching this Court notice was issued in the
SLP on 4.7.2018 with the direction to maintain status quo as on the date
as the appellant had already taken over possession in the execution of the
decree. Leave was granted on 4.2.2019 and the interim order made
absolute.
15. In the conspectus of the aforesaid, the matter was heard by us.
The Arguments:
16. In order to appreciate the provisions of the said Act, it may be
appropriate to reproduce Section 14 of the said Act as under:
“14. Property of a female Hindu to be her absolute
property.—
(1) Any property possessed by a female Hindu, whether
9 AIR 2016 SC 1213
10
acquired before or after the commencement of this Act, shall be
held by her as full owner thereof and not as a limited owner.
Explanation.—In this sub-section, “property” includes both
movable and immovable property acquired by a female Hindu
by inheritance or devise, or at a partition, or in lieu of
maintenance or arrears of maintenance, or by gift from any
person, whether a relative or not, before, at or after her
marriage, or by her own skill or exertion, or by purchase or by
prescription, or in any other manner whatsoever, and also any
such property held by her as stridhana immediately before the
commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any
property acquired by way of gift or under a will or any other
instrument or under a decree or order of a civil court or under
an award where the terms of the gift, will or other instrument or
the decree, order or award prescribe a restricted estate in such
property.”
17. There is no doubt that Section 14 of the said Act is the part of the
said Act to give rights of a property to a Hindu female and was a
progressive step. Sub-Section (1) of Section 14 of the said Act makes it
clear that it applies to properties acquired before or after the
commencement of the said Act. Any property so possessed was to be
held by her as full owner thereof and not as a limited owner. The
Explanation to sub-Section (1) of Section 14 of the said Act defines the
meaning of “property” in this sub-section to include both movable and
immovable property acquired by the female Hindu by inheritance or
11
devise or a partition, or in lieu of maintenance or arrears of maintenance,
or by gift from any person, or by her skill or exertion, or by purchase or
by prescription or in any other manner whatsoever, including stridhana.
The Explanation is quite expansive.
18. Sub-Section (2) of Section 14 of the said Act is in the nature of a
proviso. It begins with a ‘non-obstante clause’. Thus, it says that
“nothing contained in sub-section (1) shall apply to any property
acquired by way of gift or under a will or any other instrument or under a
decree or order of a civil court....” etc. where a restricted estate in such
property is prescribed. In our view the objective of sub-Section (2)
above is quite clear as enunciated repeatedly by this Court in various
judicial pronouncements, i.e., there cannot be a fetter in a owner of a
property to give a limited estate if he so chooses to do including to his
wife but of course if the limited estate is to the wife for her maintenance
that would mature in an absolute estate under Section 14(1) of the said
Act.
19. Before considering the submissions it would be appropriate to turn
to the Will itself. The Will while conferring a limited estate on Ram
Devi, Tulsi Ram had clearly stated that she will earn income from the
12
property for her livelihood. The income, thus, generated from the
property is what has been given for maintenance and not the property
itself. The next clarification is that after the lifetime of Ram Devi, the
appellant will get the ownership of the remaining half portion also. It is
specified that in case Ram Devi pre-deceases Tulsi Ram, then all the
properties would go absolutely to the appellant and that the other
children will have no interest in the property. We may note that Tulsi
Ram had six children. One son and four daughters are from the first wife
and Bimla Devi was the daughter from the second wife. At the stage
when the Will was executed one of the daughters was unmarried and the
Will also provided that in case for performing the marriage Ram Devi
needs money she will have the right to mortgage the property and earn
money from the same and will further have the right to gain income even
prior to the marriage.
20. We have set forth the terms and conditions of the Will to
understand the intent of the testator. The testator is, at least, clear in
terms that the income derived from the property is what is given to the
second wife as maintenance while insofar as the properties are
concerned, they are divided half and half with the appellant having an
13
absolute share and the wife having a limited estate which after her
lifetime was to convert into an absolute estate of the appellant.
21. Now turning to the submissions of the learned counsel for the
parties.
22. Learned counsel for the appellant contended that the life estate was
not given to Ram Devi in lieu of recognition of any pre-existing right of
Ram Devi or in lieu of maintenance and, thus, Section 14(2) of the said
Act would apply and not Section 14(1) of the said Act. The plea of res
judicata was again reiterated. It was urged that the High Court
proceeded on an erroneous premise as if the law had changed from the
first round of litigation while the fact was that the law was the same at
both stages of time. The distinction which was sought to be made was
that Shakuntla Devi10 case was wrongly relied upon as the Will in that
case was dated 1.10.1935 and it was, thus, a pre-1956 Will and, thus, that
judgment was not precedent for factual scenario in question. The suit
property was a self-acquired property of Tulsi Ram and, thus, he was
competent to execute the Will.
23. We may note that learned counsel for the appellant did seek to
contend that since possession of the property was taken over by the
10 (supra)
14
appellant and Ram Devi was not in possession thereof, she cannot claim
the benefit of Section 14(1) of the said Act (Sadhu Singh v. Gurudwara
Sahib Narike & Ors.11 and Gaddam Ramakrishna Reddy & Ors. v.
Gaddam Ramireddy & Ors.12). We may, however, note that in our
perspective that is not a material consideration as the possession is stated
to have been taken over in pursuance of the decree of the trial court.
24. On behalf of the respondents it was, once again, emphasised that
the factual scenario was similar to Shakuntla Devi13 case and the rights
of a female Hindu post the said Act have been crystallised and enunciated
in V. Tulasamma & Ors.14 case since she was an absolute owner she was
entitled to sell the land and the respondents were bona fide buyers who
were protected by Section 41 of the TP Act. Further no substantial
question of law was required to be framed in view of the Constitution
Bench judgment of the Supreme Court in Pankajakshi (dead) through
LRs & Ors.15 case.
Our view:
25. We have extracted the relevant portions of the enactment, the
11 (2006) 8 SCC 75
12 (2010) 9 SCC 602
13 (supra)
14 (supra)
15 (supra)
15
document in question being the Will and have already opined on the
interpretation of the Will. The submissions of the learned counsel for the
parties have, thus, to be appreciated in the conspectus of the same.
26. We do believe that there are only two real aspects to be examined
in the present case as the issue of even framing a question of law stands
settled. The two aspects, in our view are as under:
i. In the given factual scenario did Ram Devi become the absolute
owner of the property in view of Section 14(1) of the said Act
or in view of the Will the Explanation under Section 14(2)
would apply.
ii. What is the effect of the first round of litigation which came up
to this Court between the appellant and Ram Devi, the two
beneficiaries of the Will.
27. We are of the view that both these questions have to be answered
in favour of the appellant and for that reason the impugned judgment is
unsustainable.
28. We would first like to turn to the seminal judgment in V.
Tulasamma & Ors.16 case. In para 20 the propositions emerging in
16 (supra)
16
respect of incidents and characteristics of a Hindu woman’s right to
maintenance have been crystallised as under:
“20. Thus on a careful consideration and detailed analysis of
the authorities mentioned above and the Shastric Hindu Law on
the subject, the following propositions emerge with respect to
the incidents and characteristics of a Hindu woman's right to
maintenance:
(1) that a Hindu woman's right to maintenance is a personal
obligation so far as the husband is' concerned, and it is his
duty to maintain her even if he has no property. If the
husband has property then the right of the widow to
maintenance becomes an equitable charge on his property
and any person who succeeds to the property carries with it
the legal obligation to maintain the widow;
(2) though the widow's right to maintenance is not a right to
property but it is undoubtedly pre-existing right in property,
i.e. it is a jus ad rem not jus in rem and it can be enforced by
the widow who can get a charge created for her maintenance
on the property either by an agreement or by obtaining a
decree from the civil court;
(3) that the right of maintenance is a matter of moment and
is of such importance that even if the joint property is sold
and the purchaser has notice of the widow's right to
maintenance, the purchaser is legally bound to provide for
her maintenance;
(4) that the right to maintenance is undoubtedly a preexisting right which existed in the Hindu Law long before
the passing of the Act of 1937 or the Act of 1946, and is,
therefore, a pre-existing right;
(5) that the right to maintenance flows from the social and
temporal relationship between the husband and the wife by
17
virtue of which the wife becomes a sort (I.L.R. 27 Mad. 45.
(2) I.L.R. 18 Bom. 452) of co-owner in the property of her
husband, though her co-ownership is of a subordinate
nature; and
(6) that where a Hindu widow is in possession of the
property of her husband, she is entitled to retain the
possession in lieu of her maintenance unless the person who
succeeds to the property or purchases the same is in a
position to make due arrangements for her maintenance.”
29. In the light of the aforesaid passage, Sections 14(1) & 14(2) of the
said Act were entered by the Court. The word “possessed” was held to
be used in a wide sense not requiring a Hindu woman to be an actual or
physical possession of the property and it would suffice if she has a right
in the property. The discussion in para 33 thereafter opines that the
intention of the Parliament was to confine sub-section (2) of Section 14
of the said Act only to two transactions, viz., a gift and a will, which
clearly would not include property received by a Hindu female in lieu of
maintenance or at a partition. The intention of the Parliament in adding
the other categories to sub-section (2) was merely to ensure that any
transaction under which a Hindu female gets a new or independent title
under any of the modes mentioned in Section 14(2) of the said Act. The
conclusions were thereafter set forth in para 62 of the judgment as under:
18
“62. 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 interpretation of 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.
19
(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 pre-existing rights. In
such cases a restricted estate in favour of a female is legally
permissible and s. 14(1) will not operate in this sphere.
Where, however, an instrument merely declares or
recognises a pre-existing right, such as a claim to
maintenance 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 s. 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 sub- s. (2) and would
be governed by s. 14(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-s. (2) inapplicable to these categories
which have been expressly excepted from the operation of
sub-s.
(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 s. 14(1) she would get absolute
interest. in the property. It is equally well settled that the
20
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. 4(2) are
wider than limited interest as indicated in s.14(1) and they
include not only limited interest, but also any other kind of
limitation that may be placed on the transferee.”
30. In our view the relevant aspect of the aforesaid conclusion is para
4 which opines where sub-section (2) of Section 14 of the said Act would
apply and this does inter alia applies to a Will which may create
independent and new title in favour of females for the first time and is
not a recognition of a pre-existing right. In such cases of a restricted
estate in favour of a female is legally permissible and Section 14(1) of
the said Act will not operate in that sphere.
31. We may add here that the objective of Section 14(1) is to create an
absolute interest in case of a limited interest of the wife where such
limited estate owes its origin to law as it stood then. The objective
cannot be that a Hindu male who owned self-acquired property is unable
to execute a Will giving a limited estate to a wife if all other aspects
including maintenance are taken care of. If we were to hold so it would
imply that if the wife is disinherited under the Will it would be
21
sustainable but if a limited estate is given it would mature into an
absolute interest irrespective of the intent of the testator. That cannot be
the objective, in our view.
32. The testator in the present case, Tulsi Ram, had taken all care for
the needs of maintenance of his wife by ensuring that the revenue
generated from the estate would go to her alone. He, however, wished to
give only a limited lift interest to her as the second wife with the son
inheriting the complete estate after her lifetime. We are, thus, of the view
that it would be the provisions of Section 14(2) of the said Act which
would come into play in such a scenario and Ram Devi only had a life
interest in her favour. The natural sequittur is that the respondents cannot
inherit a better title than what the vendor had and, thus, the view taken by
the trial court and the first appellate court is the correct view and the sale
deeds in favour of the respondents cannot be sustained.
33. On consideration of the second aspect, we must begin by stating
that the sequence of litigations can hardly be said to classify the
respondents as bona fide purchasers. The first endeavour was by the
daughter of Ram Devi by seeking what is undoubtedly a collusive decree
when she had no interest in the property. She then sought to create lease
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interest in the property. Both these aspects were held against Ram Devi
and her daughter right till the Supreme Court in the first round of
litigation clearly opining that Ram Devi had only a limited estate in the
property. Despite having lost right till the Supreme Court, the sale deeds
were intervening factors even during the pendency of the litigation which
went against the vendor Ram Devi.
34. We may also notice that the reliance on Shakuntla Devi17 case by
the High Court is misplaced as the factual scenario cannot be said to be
identical. In fact the most crucial aspect was that the Will in question
was dated 1.10.1935, a pre-1956 Will which is the distinguishing factor.
The same factual scenario prevailed in Jupudy Pardha Sarathy18 case.
We must also notice that the High Court wrongly proceeded on the basis
that the first round of litigation would not create any binding precedents
because there was change in law after the first round of litigation. There
is, in fact, no change in law as all the judgments were much prior in time.
We have already stated that the rights of the respondents are derived only
from Ram Devi and once the judgment is binding on Ram Devi it cannot
be said that she can create rights contrary to the judgment in favour of
17 (supra)
18 (supra)
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third parties and that too was done during the pendency of the litigation.
We believe from the facts on record that the transactions in question are
not only not bona fide but dubious in character to somehow deny the
appellant rights conferred under the Will respondents being third parties.
The repeated endeavour of Ram Devi and her daughter did not succeed
earlier and cannot be permitted to succeed qua the purchasers from Ram
Devi.
Conclusion:
35. The result of the aforesaid is that the appeals are allowed and the
impugned judgment of the learned single Judge of the High Court is set
aside and the decree of the trial court dated 13.8.2009 as affirmed by the
appellate court dated 7.10.2010 is reaffirmed. The parties are left to bear
their own costs.
...……………………………J.
[Sanjay Kishan Kaul]
...……………………………J.
[M.M. Sundresh]
New Delhi.
February 01, 2022.
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