RSA No.4665 of 2010 (OM) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

(1) RSA No.4665 of 2010 (OM)
Date of Order:19th September, 2018

Nirmaljit Kaur and another ..Appellants

Versus

Kuldip Singh and others ..Respondents

(2) RSA No.4666 of 2010 (OM)

Bikkar Singh ..Appellant

Versus

Smt. Mohinder Kaur and others ..Respondents

(3) RSA No.4667 of 2010 (OM)

Paramjit Kaur ..Appellant

Versus

Smt. Mohinder Kaur and others ..Respondents

(4) RSA No.4668 of 2010 (OM)

Rachhpal Singh ..Appellant

Versus

Smt. Mohinder Kaur and others ..Respondents

CORAM: HON’BLE MR. JUSTICE ANIL KSHETARPAL

Present: Mr.Ashwani Kumar Chopra, Sr. Advocate, with
Mr. Akshit Chaudhary, Advocate and
Ms. Eesha Khanna, Advocate,
for the appellants.

Mr. Naresh Kumar, Advocate,

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for the respondents.

ANIL KSHETARPAL, J.

By this judgment, Regular Second Appeal Nos.4665, 4666,

4667 and 4668 of 2010 shall stand disposed of.

In the considered opinion of this court, following substantial

question of law arises for determination:-

(i) Whether a wife, who had been abandoned by her

husband and as husband has started living with another

women, gets possession of the property in a settlement,

recognizing her right of maintenance, she would

become full owner of the property or not in terms of

Section 14(1) of the Hindu Succession Act, 1956?

These four appeals are arising out of 4 different suits, 3 filed by

Mohinder Kaur, alleged subsequent wife and sons from her for possession

and one filed by daughters of first wife claiming entire property.

Certain facts would be required to be noticed.

Budha Singh was having 4 daughters and one son (Joginder

Singh). He was owner of approximately 500 kanals of land. Joginder Singh

married with late Smt. Chhinder Kaur. 2 daughters were born to the couple

Nirmaljit Kaur and Parmajit Kaur. However, it is the case of the plaintiffs

i.e. Daughters, Nirmaljit Kaur and Parmajit Kaur from first marriage that

Joginder Singh thereafter started living with Mohinder Kaur and 2 sons

were born, namely, Kuldip Singh and Gurmeet Singh. Mohinder Kaur

(alleged second wife), Kuldip Singh and Gurmeet Singh are plaintiffs in the

other 3 suits.

Since Chhinder Kaur was not being taken care off and Joginder

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Singh had started living with Mohinder Kaur, hence, she initiated

proceedings under the Indian Penal Code. During the pendency of the

proceedings pending before the High Court, a settlement was arrived at on

03.04.1961, which is not disputed between the parties. There was 3

signatories of the aforesaid settlement, namely Buddha Singh, Joginder

Singh and Chhinder Kaur. Through this settlement, right of maintenance of

Chhinder Kaur was recognised and it was agreed that she would be

delivered possession of little bit more than 15 acres of land i.e. 121 kanals

and she would be entitled to cultivate the land herself or get it cultivated

from anyone else, to maintain herself. Of course, it has been written that

she would be a lessee on the land.

It has also come in evidence that during the proceedings

initiated by Chhinder Kaur, Joginder Singh and Mohinder Kaur made a

statement before the court that they are not husband and wife.

Learned senior counsel appearing for the appellants in all these

four appeals has confined his arguments only on this 15 acres of land which

was given to Chhinder Kaur vide settlement dated 03.04.1961. Although,

he admitted that the suit filed by Nirmaljit Kaur and Paramjit Kaur is with

respect to the entire property but he is not pressing to that extent.

Both the courts below on the one hand decreed the suits filed

by Mohinder Kaur (alleged 2nd wife) Kuldeep Singh and Gurmeet Singh,

for possession and dismissed the suit filed by Nirmaljit Kaur and Paramjit

Kaur, daughters of Chhinder Kaur.

Both the courts have primarily held that since property i.e. 15

acres belonged to Buddha Singh i.e. the father-in-law and father-in-law has

no obligation to maintain daughter-in-law during the life time of her

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husband, therefore, Chhinder Kaur had no pre-existing right of maintenance

against this property and hence she cannot claim benefit of Section 14(1) of

the Hindu Succession Act.

Although, at the time of admission of the appeal, following

substantial questions of law were framed on 21.08.2015, however, learned

counsel has confined his argument only to the fact noticed above. The

questions of law are extracted as under:-

“1. Whether the statements got recorded by a person under

Section 313 of the Code of Criminal Procedure can be

taken as admission against the said person in civil

litigation?

2. Whether ancestral and coparcenary property could be

legally bequeathed by way of Will in favour of a third

person and/or illegitimate children, especially when the

natural legal heirs are alive?

3. Whether the judgments and decrees passed by the

learned courts below are result of non-reading and

misreading of the pleadings, evidence and material

placed on record and, as such, unsustainable in the eyes

of law and are liable to be set aside?

It is undisputed that Buddha Singh was having only one son

and 4 daughters. It is also undisputed that settlement which was arrived at

between the parties, apart from Buddha Singh, Joginder Singh and Chhinder

Kaur were also signatories. In other words, Buddha Singh in order to save

his son from criminal prosecution, agreed to give land measuring 15 acres to

Chhinder Kaur recognizing her right of maintenance.

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Section 19 of the Hindu Adoption and Maintenance Act, 1956

provides that a Hindu wife shall be entitled to be maintained after the death

of her husband by her father-in-law. Hence, it cannot be said that she was

having any pre-existing right of maintenance during the life time of her

husband from the property of the father. Section 19 of the Hindu Adoption

and Maintenance Act, 1956 is extracted as under:-

19. Maintenance of widowed daughter-in-law- (1) A

Hindu wife, whether married before or after the

commencement of this Act, shall be entitled to be

maintained after the death of her husband by her

father-in-law. Provided and to the extent that she is

unable to maintain herself out of her own earnings or

other property or, where she has no property of her

own, is unable to obtain maintenance- (a) from the

estate of her husband or her father or mother, or (b)

from her son or daughter, if any, or his or her estate.

(2) Any obligation under sub-section (1) shall not be

enforceable if the fatherinlaw has not the means to do

so from any coparcenary property in his possession out

of which the daughter-in-law has not obtained any

share, and any such obligation shall cease on the

remarriage of the daughter-in-law.

However, the facts of the case have to be examined in the

proper perspective.

Buddha Singh had only one son i.e Joginder Singh. Criminal

proceedings were pending before the court against his son. There was a

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settlement between daughter-in-law, son and father-in-law. Such settlement

was in recognition of rights of the daughter-in-law to the extent of her

maintenance. Once Buddha Singh signed the aforesaid settlement, along

with Joginder Singh, he recognised the rights of Chhinder Kaur through

Joginder Singh.

Section 14 of the Hindu Succession Act, 1956 is a beneficial

provision for females. Section 14(1) provides that if a female is possessed

of any property whether acquired before or after the commencement of the

Act of 1956, shall be held by her as full owner thereof and not as a limited

owner. Explanation added to sub-section (1) of Section 14 clearly explains

the scope of Section 14(1) of the Act. It provides that any movable or

immovable property possessed by a female Hindu in lieu of maintenance or

arrears of maintenance shall be full owner of the property. In the present

case, recognition of her right of maintenance is admitted in the settlement,

dated 03.04.1961. Section 14 of the Hindu Succession Act is extracted as

under:-

14. Property of a female Hindu to be her absolute

property:-

(1) Any property possessed by a Female Hindu,

whether acquired before or after the commencement of

this Act, shall be held by her as full owner thereof and

not as a limited owner. Explanation: In this sub-

section, “property” includes both movable and

immovable property acquired by a female Hindu by

inheritance or devise, or at a partition, or in lieu of

maintenance or arrears of maintenance, or by gift from

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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.

In such circumstances, if father-in-law had come forward to

save his son from criminal prosecution and offered to give land in his own

name, obviously, he was taking action on behalf of his son. In such

situation, both the courts erred in overlooking this aspect. The courts have

further erred in overlooking the fact that Buddha Singh was only having one

son i.e. Joginder Singh and ultimately after the death of Buddha Singh,

Joginder Singh was to inherit more than 15 acres of land, in absence of any

testament.

Hon’ble Supreme Court while interpreting respective scope of

Sections 14(1) and 14(2) of the Act has very elaborately dealt with the

aforesaid provisions in the case of V.Tulsamma and others v. Sesha Reddy

(Dead) by Lrs. (1977) 3 Supreme Court Cases, 99. Two concurring

judgments have been written. It has been held that Section 14(2) is in the

nature of exception to Section 14(1) of the Act. It has further been held that

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Section 14(2) shall be confined to cases where property is acquired by a

female Hindu for the first time as a grant without any pre-existing rights.

Hon’ble Mr. Justice S. Murtaza Fazal Ali while writing a concurring

judgment has culled out following proposition with respect to incidents and

characteristic of Hindu women’s right to maintenance. A relevant part of

the judgment is extracted as under:-

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 Section14(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 Section 14 is
in the nature of a proviso and has a field of its own
without interfering with the operation of Section 14
(1) materially. The proviso. should not be construed in

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a manner so as to destroy the effect of the main
provision or the protection granted by Section 14(1) or
in a way so as to become totally inconsistent with the
main provision.

(4) Sub-section (2) of Section 14 applies to instruments,
decrees, awards, gifts etc. which create independent
and new titles in favour of the females for the first time
and has no application where the instrument concerned
merely seeks to confirm, endorse, declare or recognise
preexisting rights. In such cases a restricted estate in
favour of a female is legally permissible and Section 14
(1) will not operate in this sphere. Where, however, an
instrument merely declares or recognises a pre-existing
right, such as a claim 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 Section 14(1) and the
restrictions placed, if any, under the document would
have to be ignored. Thus where a property is allotted or
transferred to a female in lieu of maintenance or a
share at partition, the instrument is taken out of the
ambit of sub- Section . (2) and would be governed by
Section 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 Section 14
(1) clearly makes sub-s. (2) inapplicable to these
categories which have been expressly excepted from the
operation of sub-section (2).

(6) The words “possessed by” used by the Legislature in
Section 14(1) are of the widest possible amplitude and
include the state of owning a property even though the
owner is not in actual or physical possession of the
same: Thus, where a widow gets a share in the property
under a preliminary decree before or at the time when
the 1956 Act had been passed but had not been given
actual possession under a final decree, the property
would be deemed to be possessed by her and by force of
Section 14(1) she would get absolute interest. in the
property. It is equally well settled that the possession of
the widow, however, must be under some vestige of a
claim, right or title, because the section does not
contemplate the possession of any rank trespasser with-
out any right or title.

(7) That the words “restricted estate” used in Section
14(2) are wider than limited interest as indicated in
Section 14(1) and they include not only limited interest,
but also. any other kind of limitation that may be placed
on the transferee.”

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This judgment has been consistently followed.

In view of the aforesaid binding precedent, reference to other

judgments is not necessary.

Although, no arguments have been addressed, however, with

regard to question no.1, courts have wrongly held that the statement given

by Joginder Singh and Mohinder Kaur in the criminal proceedings that they

are not married and therefore, they are not husband and wife is not binding

in the civil court, is erroneous. The statement given by the accused in the

court cannot be allowed to be brushed aside easily by the court. The courts

were wrong in ignoring the statement on the ground that the aforesaid

statement was given by Joginder Singh and Mohinder Kaur, in order to save

themselves from the criminal prosecution.

Still further, courts have wrongly observed that continuous co-

habitation of a man and women raises a presumption of marriage. There

cannot be any valid marriage amongst the Hindus during the life time of his

first wife. So, therefore, even if there was any second marriage, that was

void and therefore, Mohinder Kaur had no right to claim that she was a legal

married wife of Joginder Singh.

As noticed earlier, only one point has been raised by learned

counsel for the appellant, therefore, this court refrains from answering the

questions no.2 and 3 framed at the time of admission.

In view thereof, the judgments and decrees passed by the courts

below are modified to the extent that 15 acres of land which was given to

Chhinder Kaur would be her absolute property. Chhinder Kaur or her

daughters would have no rights over the remaining property of Joginder

Singh or Buddha Singh as these have been bequeathed in favour of Kuldip

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Singh, Gurmeet Singh etc. and the aforesaid testamentary document has

been upheld by the courts.

C.M.Nos.114-C-2016
C.M.Nos.117-C-2016
C.M.Nos.123-C-2016
C.M.Nos.135-C-2016

Counsel for the appellants does not wish to press these

applications for mesne profits.

Hence, dismissed as not pressed.

C.M.Nos.9556-C-2017, C.M.Nos.9560-C-2017
C.M.Nos.9591-C-2017, C.M.Nos.9592-C-2017
C.M.Nos.1568-C-2011, C.M.Nos.1305-C-2011
C.M.Nos.1294-C-2011, C.M.Nos.1314-C-2011

These applications are disposed of in terms of the judgment

passed above.

19th September, 2018 (ANIL KSHETARPAL)
nt JUDGE

Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No

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