Parukutty vs Federal Bank Ltd. and Others

M.R. Hariharan Nair, J.—During execution of the decree in O.S. No. 78 of 1990 of the Additional Sub Court, North Paravur through E.P. No. 184 of 1992, the Petitioner put in an application seeking her impleadment as additional Petitioner in the claim petition filed as E.A. 605 of 1984 by her mother. It was contended that the Petitioner is also a legal heir of the deceased mother along with Respondents 2, 4 and 5 and that her presence was hence necessary to continue the claim petition.

The decree was obtained against the 2nd Respondent based on a loan obtained from the decree-holder. In the property that was mortgaged by the 2nd Respondent, her mother Lakshmi also had a life estate and that was why the claim was filed. The request for impleadment was resisted on the ground that the life interest for which alone Lakshmi was entitled to, has ceased to be in existence with her death and that no right over the property has survived in favour of the present Petitioner and as such she is an unnecessary party. The court below accepted the Respondent''s version and dismissed the petition.

According to the learned Counsel for the revision Petitioner, by virtue of Section 14(1) of the Hindu Succession Act, 1956 the property of the 5th Respondent namely her life estate has ripened into an absolute right and as such the Petitioner who is the daughter is also one of the legal heirs. The argument of the 1st Respondent is that it is Section 14(2) of the Hindu Succession Act, 1956 that will apply in the instant case.

Though the main question involved is the right of impleadment, that is closely connected with the impact of Section 14 of the Hindu Succession Act with regard to the rights of the deceased Petitioner-Lakshmi. It is not in dispute that she had only a right of enjoyment for life in the property mortgaged to the decree-holder. It will be useful to quote here Section 14 of the Hindu Succession Act.

Property of female Hindu to be her absolute property.- (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation.-In this Sub-section, ''property'' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of 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 of 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.

It is clear from a plain reading of the Section itself that Section 14(2) is actually a proviso or exception to Sub-section (1) of Section 14 of the Act with its operation confined to cases where property is acquired for the first time as a grant without any pre-existing right. If the female had an existing interest in the property, the interposition of any instrument will not affect the operation of Sub-section (1) of Section 14 of the Act and the property will still be held by the female as her absolute property.

The case law in the matter may now be looked into. It was found in Jasjit Singh and another Vs. Smt. Charanjit Kaur and another, that Section 14(1) applies to all kinds of rights, whether it be right of full ownership or a right falling short of ownership. The term ''Right'' mentioned in the Section would comprehend every right known to the law. It would include both corporeal and incorporeal rights including ''a right of ownership''. In Dr. Mahesh Chand Sharma Vs. Smt. Raj Kumar Sharma and others, the position is reiterated. It was held that it would not be just and proper not to give effect to the salutary provision in Section 14 of the Act on the ground of technicalities and that Section 14 should operate on its own force once the facts requisite for attracting its application are established. That was a case where the settlement which gave rise to the life estate was dated 27th January 1955 which was before the commencement of the Hindu Succession Act include 1956. It was found that the limited right has ripended into full right on the commencement of the Hindu Succession Act.

In C. Masilamdni Mudaliar v. Idol of Sri Swaminathaswami AIR 1996 S.C. 1967 the life estate was created in lieu of maintenance as per a Will which came into force before the commencement of the Hindu Succession Act, 1956. It was held that the right must be construed to be in lieu of the donee''s pre-existing right to get maintenance under the pristine Hindu Law and it cannot be construed as right acquired for the first time under the Will and that it has ripened into absolute ownership u/s 14(1) of the Act. It was further found that if the acquisition under the document is for the first time, without any vestige of pre-existing right, Sub-section (2) of Section 14 would get attracted. That Sub-section, it was held, being one in the nature of an exception does not wipe out the operation of Sub-section (1). Actually Section 14(2) operates independently in its own sphere. Sub-sections (1) and (2) of Section 14 will be given their full play in their respective fields without rendering either as otiose or aids as means of avoidance.

Smt. Naresh Kumari (Dead) By Lrs. and Another Vs. Sh. Shakshi Lal (Dead) By Lrs. and Another, also went into the scope and extent of operation of Sub-sections (1) and (2) of Section 14. It was found that for establishing right u/s 14(1) all that has to be shown by a female Hindu is that she had a right in the property in question, whether her possession be physical or constructive. If she was put in possession of any property pursuant to her right to maintenance, her limited right or interest in the property would blossom into full ownership by operation of Section 14(1). On the other hand Sub-section (2) excludes a woman''s right from the field of Sub-section (1) if she got the property by way of gift or under a Will or other instrument or under an order or a decree of a civil court or under an award. In such eases, it will not mature into full right.

What emerges from the aforesaid discussion is that the material question that has to be gone into in such a case is whether the widow had a pre-existing right of maintenance, albeit limited, as on the date of execution of the instrument. If she had such a right by way of maintenance or otherwise, Section 14(1) would apply and the right would ripen into absolute right. In the other case, she would get only the limited right conferred under the document and that would be covered by Section 14(2). In cases where Section 14(2) apply, the limited right will not survive to the legal heirs of the particular woman.

In the case in hand, it is not clear from the order of the court below as to whether Lakshmi obtained the grant at a time which she had any right of maintenance. The circumstances in which the grant was obtained by her are also not known. The matter requires to be probed into further. If such probe reveals any such pre-existing right, then, notwithstanding the fact that the document was executed after the commencement of the Hindu Succession Act, the right would be absolute. In that event, the Petitioner has necessarily to be impleaded as one of the legal heirs of the deceased.

In the circumstances, the impugned order is set aside and the matter is remitted to the court below for fresh decision in accordance with what is discussed above and after collection of evidence.