IN THE SUPREME COURT OF INDIA

C.A. No. 605 of 2000 (Arising out of S.L.P. (C) No. 17636 of 1998)

Decided On: 27.01.2000

Appellants: Rameshwari Devi Vs.Respondent: State of Bihar and others

Hon'ble Judges:D.P. Wadhwa and S.N. Phukan, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Anurag Dubey, U.D. Tiwari, Rajesh Pathak, A.K. Gupta, S.R. Setia, Mridula Ray and Bhardwaj, Advs.

For Respondents/Defendant: K.N. Rawal, R.N. Trivedi, Addl. Solicitor Generals, Pratibha Jain, S.B. Upadhyay, Rekha Pandey, D.S. Mehra, B.B. Singh and K.R. Singh, Advs.

Subject: Service

Subject: Family

Catch Words

Mentioned IN

Acts/Rules/Orders: Hindu Marriage Act, 1955 - Sections 5 and 16; Hindu Succession Act, 1956; Central Civil Service (Conduct) Rules - Rule 21; Bihar Government Servant's conduct Rules, 1976 - Rule 23; Karnataka Civil Service Rules - Rule 28; Indian Penal Code - Section 494; West Bengal Services (Duties, Rights and Obligations of the Government Employees) Rules, 1980 - Rule 5(4)

Cases Referred:Badri Prasad v. Dy. Director of Consolidation & Ors. [1978(3) SCC 527]; State of Karnataka v. T. Venkataramanappa 1996(6) SCC 455; State of W.B. v. Prasenjit Dutta 1994(2) SCC 37

Prior History: From the Judgment and Order Dated April 13, 1998 of the Patna High Court in L.P.A. No. 613 of 1986

Case Note:

Service – pension – Sections 5, 11 and 16 of Hindu Marriage Act, 1955 and Sections 8 and 10 of Hindu Succession Act, 1956 – appeal against Order of High Court that children of deceased's second wife were entitled to share family pension and benefit of death-cum-retirement gratuity – marriage between deceased and second wife was void marriage under Section 5 (i) – as per Section 16 children of void marriage are legitimate – under Act of 1956 property of male Hindu dying intestate devolve firstly on heirs in Clause (i) which includes widow and son – no infirmity in impugned judgment – appeal dismissed.

JUDGMENT

D.P. Wadhwa, J.

1. Leave granted.

2. Appellant is aggrieved by judgment dated April 23,1998 of the Division Bench of the Patna High Court passed In Letters Patent Appeal affirming the judgment of the learned single Judge dated April 26, 1996.

3. Dispute concerns to payment of family pension and death-cum-retirement gratuity to two wives of Narain Lal, who died in 1987 while posted as Managing Director, Rural Development Authority of the State of Bihar. Appellant is the first wife. Narain Lal is stated to have married second time with Yogmaya Devi on April 10, 1963 while the appellant was still alive. From the first marriage he had one son and from the second marriage four sons born in 1964, 1971, 1972 and 1976. Learned single Judge in his judgment held that children born to Narain Lal from the wedlock with Yogmaya Devi were entitled to share the family pension and death-cum-retirement gratuity and further that family pension would be admissible to the minor children only till they attained majority. He also held that the second wife Yogmaya Devi was not entitled to anything. Appeal by the first wife Rameshwari Devi against the judgment was dismissed by the Division Bench. According to her there was no marriage between Narain Lal and Yogmaya Devi and the children were, therefore, not legitimate. Aggrieved Rameshwari Devi has come to this Court.

4. On filing of the special leave petition notices were Issued to the respondents. In response thereto counter affidavits have been filed by (1) Yogmaya Devi (2) State of Bihar and (3) Accountant General {A & E) II Patna.

5. Stand of the State Government is that Rameshwari Devi was the legally married . wife of Narain Lal. He married again to Yogmaya Devi in April, 1963 and that the marriage with Yogmaya Devi was against the provisions of law as contained in Sections 5 and 11 of the Hindu Marriage Act, 1955. It was, therefore, avoid marriage. Second wife had thus

no status and could not claim any share form the estate of Narain Lal as per the provisions of Hindu Succession Act, 1956. Accordingly State Government sanctioned family pension and gratuity to Rameshwari Devi by its order dated August 22, 1995. By this order the State Government cancelled its previous two orders dated September 23, 1993 and October 6,1993. Group insurance and final withdrawal of GPF had already been sanctioned to Rameshwari Devi. However, in compliance with the order of the High Court dated April 26, 1996 in writ petition filed by Yogmaya Devi family pension, gratuity, GPF, pay for unutilised leave and group insurance were sanctioned to Rameshwari and her son and minor sons of Yogmaya Devi.

6. Accountant General in his affidavit has only to refer to the action of the State Government in cancelling its earlier order dated September 23, 1993 and fresh order dated August 22, 1995 authorising all the payments to Rameshwari Devi being the sole recipient of family pension and death-cum-retirement gratuity. Accountant General says that on the orders of the State Government it authorised full family pension and full gratuity to Rameshwari Devi. Reference was then made to writ petition filed by Yogmaya Devi In the High Court and when the State Government on the. basis of the order of the High Court Issued fresh order dated October 17, 1996 Accountant General accordingly authorised 50% of family pension and death-cum-retirement gratuity to the minor children of Yogmaya Devi. A direction was Issued to the Treasury Officer to recover excess amount of family pension and death-cum-retirement gratuity paid to Rameshwari Devi and further to reduce her family pension and death-cum-retirement gratuity by 50%. Accountant General is non-committal if the children of Yogmaya Devi are legitimate or illegitimate children of Narain Lal and rightly so. He has merely to act as per the directions issued by the State Government.

7. Rameshwari Devi has disputed the very factum of marriage between Narain Lal and Yogmaya Devi. Her case is that nothing has come on record to show that there was any valid marriage solemnized as per Hindu law between Yogmaya Devi and Narain Lal. Yogmaya Devi says that from the time of her marriage with Narain Lal in April, 1963 she has been continuously living with Narain Lal as his wife. At the time of her marriage she had no knowledge if Narain Lal had earlier been married. She has referred to various judgments of this Court to show that when two persons are living together for long years as husband and wife, in such circumstances, even in absence of proof, a presumption of valid marriage between them would arise. She says nothing has been brought on record to rebut that presumption. In Badri Prasad v. Dy. Director of Consolidation MANU/SC/0004/1978 this Court said that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy. The Court further observed that if men and women who lives as husband and wife in society are compelled to prove, half a century later, by eye-witness evidence that they were validly married, few will succeed. There have been various other judgments of this Court holding where a man and a woman live together for long years as husband and wife then a presumption arose in law of legality of marriage existed between the two, though the presumption is rebuttable.

8. An inquiry report dated December 11, 1987 of ADM, Danapur Sub Division, Danapur, Patna has been brought on record. According to this report on inquiry it was found that Narain Lal had married twice. First time to Rameshwari Devi in 1948 and second time to Yogmaya Devi on April 10, 1963. There is mention of one son from his first marriage with Rameshwari Devi and four sons from marriage with Yogmaya Devi. Two persons have testified to the marriage of Yogmaya Devi with Narain Lal. Both Narain Lal and Yogmaya Devi had lived together as husband and wife at all the places wherever Narain Lal was posted. This fact was also verified from the colleagues of Narain Lal and their wives. That four sons were born to Narain Lal from his marriage with Yogmaya Devi has also been similarly testified.

9. Now, when first order was cancelled by the State Government and second passed depriving Yogmaya Devi and her children of any right in the pensionary benefits of Narain Lal, she filed writ petition in the High Court, which as noted above, was allowed by the learned single Judge and later appeal filed by Rameshwari Devi against that was dismissed by the Division Bench of the High Court which is impugned. Learned single Judge referred to Section 16 of the Hindu Marriage Article 1955 holding that even though the marriage of Narain Lal with Yogmaya Devi was void (heir children would be legitimate and thus would be entitled to claim share in the family pension and death-cum-retirement gratuity of Narain Lal but only till they attained majority. Learned single Judge accordingly issued direction to the State Government, to issue fresh sanction order for payment of arrears of family pension and death cum-retirement gratuity to the minor children born from the wedlock between Yogmaya Devi and Narain Lal till they attain majority but nothing would be payable to Yogmaya Devi.

10. Mr. Dubey, counsel for Rameshwari Devi, submitted that inquiry conducted by the State Government as to the marriage of Narain Lal with Yogmaya Devi was incompetent as there was no lawful authority with the State Government to hold such an inquiry. It was for Yogmaya Devi to establish her right of her being married to Narain Lal in a Court, of law. Mr. Dubey said under the relevant Conduct Rules applicable to Narain Lal he could be charged with misconduct of his having married a second time during the life time of his first wife. It is only in that circumstance when there is charge of misconduct there could be an inquiry as to the marriage of Narain Lal with Yogmaya Devi, He referred to Rule 21 of the Central Civil Service (Conduct) Rules as well as to Rule 23 of the Bihar Government Servant's conduct Rules, 1976, which are as under:

CCS Rules

21. Restriction regarding marriage

(1) No Government servant shall enter into or contract, a marriage with a person having a spouse living; and

(2) No Government servant having a spouse living, shall enter into, or contract, a marriage with any person:

Provided that the Central Government may permit a Government servant to enter into or contract, any such marriage as is referred to in Clause (1) or Clause (2), if it is satisfied that -

(a) such marriage is permissible under the personal law applicable to such Government servant and the other party to the marriage; and

(b) there are other grounds for so doing.

(3) A Government servant who has married or marries a person other than of Indian Nationality shall forthwith intimate the fact to the Government, Bihar Government Servant's Conduct Rules, 1976

23. Restrictions regarding marriages.- (1) No Government servant shall enter into, or contract a marriage with a person having a spouse living; and

(2) No Government servant, having a spouse living shall enter into or contract a marriage with any person:

Provided that Government may permit a Government servant to enter into or contract, any such marriage as is referred to in Clause (4) or Clause (2) if it is satisfied that.-

(a) such marriage is permissible under the personal law applicable to such Government servant and the other party to the marriage; and

(b) there are other grounds for so doing.

(3) A Government servant who has married or marries a person other than of Indian Nationality shall forthwith intimate the fact to the Government.

11. We may also note two judgments of this Court on the question when there is charge of misconduct against a Government servant. In State of Karnataka v. T. Venkataramanappa MANU/SC/1276/1996, the respondent, a police constable 'was prosecuted at the instance of his wife for having contracted second marriage. He was discharged for want of evidence. A departmental inquiry was instituted against him for having contracted second marriage, for which he was suspended. He approached the Karnataka Administrative Tribunal against the order of suspension and for stopping of the inquiry against him on the ground that a criminal Court had discharged him of the offence of bigamy. Tribunal accepted the stand of the respondent, quashed the departmental proceedings and lifted the suspension. On appeal filed by the State this Court said as under:

There is a string of judgments of this Court whereunder strict proof of solemnisation of the second marriage, with due observance of rituals and ceremonies, has been insisted upon. The prosecution evidence in the criminal complaint may have fallen short of those standards but that does not mean that the State was in any way debarred from invoking

Rule 28 of the Karnataka Civil Service Rules, which forbids a government servant to marry a second time without the permission of the Government. But here the respondent being a Hindu, could never have been granted permission by the Government to marry a second time because of his personal law forbidding such marriage. It was thus beyond the ken of the Tribunal to have scuttled the departmental proceedings against the respondent on the footing that such question of bigamy should normally not be taken up for decision in departmental enquiries, as the decisions of competent Courts tending to be decisions in rem would stand at the highest pedestal. There was a clear fallacy in such view because for purposes of Rule 28, such strict standards, as would warrant a conviction for bigamy under Section 494, I.P.C. may not, to begin with be necessary.

12. In State of W. B. v. Prasenjit Dutta MANU/SC/0612/1994 departmental proceedings were initiated against the respondent, who was a member of the Police Service of the State of West Bengal under Rule 5 (4) of the West Bengal Services (Duties, Rights and Obligations of the Government Employees) Rules, 1980 for having contracted a second marriage. That Rule says that no government employee who has a wife/husband living shall contract another marriage without previously obtaining the dissolution of the first marriage in accordance with law for the time being in force, notwithstanding such second marriage is permissible in the personal law of the community to which he or she belongs. On an inquiry made by an officer, appointed for the purpose, and on his report that the respondent was guilty of misconduct alleged, an order of dismissal was passed by the disciplinary authority. Respondent approached the High Court and the order of his dismissal was stayed. Nevertheless High Court was of the view that the second marriage was a serious matter, which could not be left to be decided by the departmental authorities, in proceedings such as these, and a civil or matrimonial Court needs to pronounce thereon properly and finally. On appeal filed by the State Government this Court said:

The view of the High Court may be correct that a matter such as the present one concerning the existence or not of a relationship of husband and wife is normally to be dealt with in a matrimonial or a civil Court. It cannot at the same time be said that the departmental authorities cannot go into such question for the limited purposes of Sub-rule (4) of Rule 5 of the aforesaid Rules. When contracting another marriage, in the presence of the previous one, has been termed to be misconduct visiting departmental punishment it is difficult to keep suspended action under the Rule till after a proper adjudication is made by the civil or matrimonial Court. It would, thus, have to be viewed that the departmental proceeding could not be shut in the manner in which the High Court has done and it would have to go on to some finality at a departmental end, on the culmination of which, it may then give rise to the delinquent approaching the civil Court for determining his matrimonial status.

13. But then it is not necessary for us to consider if Narain Lal could have been charged of misconduct having contracted a second marriage when his first wife was living as no disciplinary proceedings were held against him during his lifetime. In the present case, we are concerned only with the question as to who is entitled to the family pension and death-cum-retirement gratuity on the death of Narain Lal. When there are two claimants

to the pensionary benefits of a deceased employee and there is no nomination wherever required State Government has to hold an inquiry as to the rightful claimant. Disbursement of pension cannot wait till a civil Court pronounces upon the respective rights of the parties. That would certainly be a long drawn affair. Doors of civil Courts are always open to any party after and even before a decision is reached by the State Government as to who is entitled to pensionary benefits. Of course, inquiry conducted by the State Government cannot be a sham affair and it could also not be arbitrary. Decision has to be taken in a bona fide reasonable and rational manner. In the present case an inquiry was held which cannot be termed as sham. Result of the inquiry was that Yogmaya Devi and Narain Lal lived as husband and wife since 1963. A presumption does arise, therefore, that marriage of Yogmaya Devi with Narain Lal was in accordance with Hindu rites and all ceremonies connected with a valid Hindu marriage were performed. This presumption Rameshwari Devi has been unable to rebut. Nevertheless, that, however, does not make the marriage between Yogmaya Devi and Narain Lal as legal. Of course, when there is a charge of bigamy under Section 494, IPC strict proof of solemnisation of the second marriage with due observance of rituals and ceremonies has been insisted upon.

14. It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of Clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolve firstly on heirs in Clause (1) which include widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described a widow of Narain Lal, her marriage with Narain Lal being void. Sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal. That is, however, legal position when Hindu male dies intestate. Here, however, we are concerned with the family pension and death-cum-retirement gratuity payments which is governed by the relevant rules, It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the learned single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment.

15. Rameshwari Devi has raised two principal objections : (1) marriage between Yogmaya Devi and Narain Lal has not been proved, meaning thereby that there is no witness to the actual performance of the marriage in accordance with the religious ceremonies required for a valid Hindu marriage and (2) without a civil Court having pronounced upon the marriage between Yogmaya Devi and Narain Lal in accordance with Hindu rights, it cannot be held that the children of Yogmaya Devi with her marriage with Narain Lal would be legitimate under Section 16 of the Hindu Marriage Act. First objection we have discussed above and there is nothing said by Rameshwari Devi to rebut the presumption in favour of marriage duly performed between Yogmaya Devi and Narain Lal. On the second objection, it is correct that no civil Court has pronounced if there was a marriage between Yogmaya Devi and Narain Lal in accordance with Hindu

rights. That would, however, not debar the State Government from making an inquiry about the existence of such a marriage and act. on that in order to grant pensionary and other benefits to the children of Yogmaya Devi. On this aspect we have already adverted to above. After the death of Narain Lal, inquiry was made by the State Government as to which of the wives of Narain Lal was his legal wife. This was on the basis of claims filed by Rameshwari Devi. Inquiry was quite detailed one and there are in fact two witnesses examined during the course of inquiry being (1) Sant Prasad Sharma, teacher, DAY High School, Danapur and (2) Sri Basukinath Sharma, Shahpur Maner who testified to the marriage between Yogmaya Devi and Narain Lal having witnessed the same. That both Narain Lal and Yogmaya Devi were living as husband and wife and four sons were born to Yogmaya Devi from this wedlock has also been testified during the course of inquiry by Chandra Shekhar Singh, Rtd. District Judge, Bhagalpur, Smt. (Dr.) Arun Prasad, Sheohar, Smt. S. N. Sinha, w/o Sri S. N. Sinha, ADM and others. Other documentary evidence were also collected which showed Yogmaya Devi and Narain Lal were living as husband and wife. Further, the sons of the marriage between Yogmaya Devi and Narain Lal were shown in records as sons of Narain Lal.

16. Having considered all the facts of the case as presented before us we do not find any error in the impugned Judgment of the Division Bench of the Patna High Court upholding the judgment of the learned single Judge referred to in the beginning of this judgment. The appeal, therefore, fails and is dismissed. However, there shall be no order as to costs.

IN THE HGIH COURT OF KARNATAKA AT BANGALORE

Miscellaneous Second Appeal No. 372 of 1998

Decided On: 03.01.2000

Appellants: Smt. NagarathnammaVs.Respondent: Smt. Venkatalakshmamma and Others

Hon'ble Judge:Hari Nath Tilhari, J.

Counsels: For Appellant/Petitioner/Plaintiff: Sri B.R. Viswanath, Adv.

For Respondents/Defendant: Sri Ashok R. Kalyan Setty, Adv.

Subject: Family

Catch Words

Mentioned IN

Acts/Rules/Orders:Hindu Marriage Act, 1955 - Sections 5, 11 and 16(3); Special Marriage Act, 1954 - Sections 4 and 18; Code of Criminal Procedure - Order 43, Rule 1

Case Note:

Family – service benefits – Hindu Marriage Act, 1955 and Hindu Succession Act, 1956 - appellant as well as respondent both wife of deceased husband – appellant filed suit for declaration seeking Court declaration that service benefits of deceased be given to her and respondents be restrained – Court observed that marriage of deceased with respondent void and respondent could not claim service benefits but children born out of wed-lock legitimate and entitled to property of benefits – employer of deceased/husband directed to distribute service benefits accordingly.

JUDGMENT

1. This appeal under Order 43, Rule 1 of C.P.C. has been filed by the plaintiff/appellant in the Trial Court from the judgment and order dated 13-8-1997.

2. The facts of the case in brief are that, the present plaintiff/appellant filed the suit for declaration that she is the legally wedded wife of deceased S. Narayanaswamy and she is entitled to receive the benefits of family pension and other monetary benefits of the deceased S. Narayanaswamy. She also prayed for a decree for injunction against the defendant 3 i.e., the present respondent 1 prohibiting and restraining her from withdrawing any of aforesaid benefits. The defendants 1 and 2 to the suit namely, the Secretary of the Karnataka Electricity Board and the Assistant Executive Engineer, Karnataka Electricity Board, filed joint written statement, whereas the 3rd defendant, who is present respondent 1, filed a separate written statement.

3. The plaintiff/appellant asserted herself to be the legally wedded wife of Sri S. Narayanaswamy, an Assistant Lineman in the Karnataka Electricity Board, who had died on 28-1-1992. According to the plaintiff/appellant, she got two children from the wedlock with late Sri S. Narayanaswamy namely Devaraj and Devarajeshwari. According to the plaintiff/appellant's case, the marriage between the plaintiff/appellant and deceased S. Narayanaswamy had taken place on 1-5-1977 and they lived as husband and wife. The plaintiff asserted that with defendant 3-Venkatalakshmamma, the deceased S. Narayanaswamy developed an illicit relationship sometimes in 1986 and she, under the guise thereof, is trying to claim share in monthly pension and other monetary benefits which are payable due to the death of Sri S. Narayanaswamy and with the assistance of

the Employees' Union and Officers, the defendant 3 got the records built up and is claiming half portion of the monthly pension and other benefits. So the plaintiff prayed that an injunction be issued against the defendant 3 i.e., present respondent 1 that she be restrained from receiving or withdrawing any pensional benefits or retiral benefits.

4. The defendant 3-the contesting respondent, who is the respondent 1 before this Court, asserted herself to be the legally wedded wife of the deceased S. Narayanaswamy and alleged that her marriage was registered in the Sub-Registrar's Office, copy of which has been produced. She further asserted that out of wedlock between her i.e., the 3rd defendant who is present respondent 1 and the deceased Narayanaswamy, three children were born namely Shilpa, Sheela and Shashi. The defendant 3 asserted that before filing of the suit, the defendant/respondent 1 and the plaintiff received in equal proportion of one half each the retiral benefits and pension of Narayanaswamy and withdrew with consent of each other half share each and this consent was brought among the two, i.e., between the plaintiff and the 3rd defendant i.e., appellant and the 1st respondent, by the intervention of the elderly members of the village and because she also learnt that the plaintiff was the kept mistress of her late husband. The defendant stated that the suit at the instance of the plaintiff was not maintainable and further that suit was bad for non-joinder of necessary parties.

5. The Trial Court framed the following issues.-

(1) Whether the plaintiff has proved that she alone is entitled to receive the monthly pension and other benefits of the deceased S. Narayanaswamy?

(2) Whether the suit for bare injunction is maintainable in law?

(3) Whether the suit is not maintainable as contended by the 3rd defendant in para 11(d) of her written statement?

(4) Whether the suit is bad for non-joinder of necessary parties?

(5) Whether the suit is bad for mis-joinder of parties?

(6) What order and what decree?

An additional issue was also framed by the Trial Court.

(1) Whether the plaintiff has proved that she is the legally wedded wife of the deceased Narayanaswamy?

6. The Trial Court after having considered the material evidence on record, held that Ex. P. 1 and P. 2 along with other evidence of P.W. 1 and the circumstantial evidence to the effect that the defendant 3 had not denied in cross-examination the fact that the plaintiff is the wife of deceased Narayanaswamy, held that the plaintiff/appellant was and has been the wife of deceased Narayanaswamy and she had been married in 1977. It further

held that the plaintiff has proved that she alone is entitled to receive the monthly pension and other benefits of deceased S. Narayanaswamy. It held that bare suit for injunction is not maintainable. Issue 3 was also answered in negative. Issues 4 and 5 have also been answered in negative. The Trial Court, as such, passed the decree declaring that the plaintiff is the legally married wife of deceased Narayanaswamy and passed an injunction order restraining the defendant 3 from claiming benefits from the defendants 1 and 2 payable to deceased S. Narayanaswamy. It dismissed the plaintiffs claim against defendants 1 and 2 i.e., present respondents 2 and 3. It may also be mentioned here that looking to the circumstances and taking into consideration that both of them have produced the survival certificates in which both were shown as wives of deceased S. Narayanaswamy, as they had sought release of amount to them, it opined that as plaintiff's marriage is proved, she is, no doubt, legally wedded wife of deceased S. Narayanaswamy, but the marriage of 3rd defendant/respondent 1 with the deceased S. Narayanaswamy, as alleged by the defendant 3/respon-dent 1, took place in the year 1986. As such, it opined that the marriage of 3rd defendant/respondent 1 with the deceased Narayanaswamy had taken place subsequent to 1977. Therefore, the marriage of 3rd defendant i.e., present respondent 1 had no value in the eye of law as it was null under Sections 5 and 11 of the Hindu Marriage Act and on that basis, the Trial Court held that the 3rd defendant/respondent 1 was not entitled to get any benefits. The Trial Court further observed that under Section 16 of the Hindu Marriage Act, children of null and void marriage are also entitled to claim with reference to the personal and separate properties of their parents. Therefore, children of the 3rd defendant could claim against the plaintiff their rights. It observed that though 1st and 2nd defendants have released some amount in favour of the plaintiff and the 3rd defendant on a joint representation made by the plaintiff and the 3rd defendant, 1st and 2nd defendants are not to be blamed as it was the result of the agreement and joint representation of the present appellant and respondent 1. But, as the 3rd defendant is not the legally wedded wife, so she cannot claim any pensionary benefits. Taking this view, the Court below passed the decree and injunction against the defendant 3.

7. The defendant 3, aggrieved by the judgment and decree of the Trial Court, preferred an appeal. The Appellate Court allowed the appeal and set aside the decree and remanded it to the Trial Court again to determine the question of validity of the marriage of the 1st respondent namely Venkatalakshmamma, who was appellant before the Appellate Court, in the light of additional documents produced with I.A. III afresh. It also directed that the Trial Court should give an opportunity to both the parties to lead evidence and if the application to implead the children is made, it shall be decided according to law and it directed that entire matter be decided afresh. Feeling aggrieved from the judgment and order of remand passed by the lower Appellate Court, the plaintiff has come up in first appeal from the order under Order 43, Rule 1. This appeal, no doubt, is described here as Miscellaneous Second Appeal.

8. I have heard the learned Counsel for the appellant.

9. The learned Counsel for the appellant contended that the Court below acted illegally in remanding the case. The learned lower Appellate Court ignored from consideration the

factum that the plaintiff/appellant had been married in 1977, whereas the 3rd defendant/respondent 1 claim herself to have married the deceased Narayanaswamy somewhere in 1986. The learned Counsel further submitted that it was not proved nor it was anybody's case that the marriage with the appellant i.e., the plaintiff had been dissolved by divorce. The learned Counsel further urged that once the marriage of deceased Narayanaswamy with the appellant had not been dissolved and under the survival certificate it has been admitted that the plaintiff was wife of the deceased Narayanaswamy and once the evidence shows that the marriage took place in the year 1977, the Court below should have applied its mind to the question whether second marriage which did take place during the life time of 1st wife and during subsistance of 1st marriage i.e., with plaintiff, is and has been illegal, null and void. The learned Counsel submitted that the Trial Court had considered that aspect of the matter and kept all those facts in view and held that the second marriage was void under Section 11. The learned Counsel contended that if a transaction is void, it is void and non est and there was no need for declaration. Even if no declaration was sought, the consequences of the fact that first wife was alive and Narayanaswamy was living with her as husband and their marriage has been subsisting, in view of Section 11 as such, the second marriage with defendant 3 i.e., respondent was in breach of Section 5(i) of Hindu Marriage Act. As such, the second marriage was a nullity and null and void i.e., non est, so, there was no need to seek for declaration when the injunction was sought, that question so involved had to be decided and the parties had urged their arguments during hearing. The learned Counsel submitted, therefore, the direction of the lower Appellate Court that the Trial Court should decide the question of validity of marriage of 3rd defendant i.e., the appellant before it is bad and was not required at all. The learned Counsel further contended that injunction was sought only against defendant 3 and not against other heirs or children of the deceased and therefore, it was thought that they were not necessary parties. Even if they were necessary parties, the lower Appellate Court itself could have directed impleadment of those children and instead of remanding and could have passed suitable order or decree modifying the Trial Court's decree.

10. Notice of the appeal had been served on the respondents. On behalf of the respondent 2, appearance has been put by Sri Ashok R. Kalyan Shetty. Notice to respondent 1 is held sufficient. But, in spite of service of notice, none has appeared on behalf of respondent 1. Respondent 3 is served and unrepresented.

11. The learned Counsel for the respondent 2 contended that validity of marriage was not an issue and no issue was pressed, and under law even the children born of an illicit relationship or illegitimate relationship are also held to be entitled to get equal share in the property of the parents. So children were necessary parties for final adjudication.

12. I have applied my mind to the contentions of the learned Counsel for the parties.

In this case, the decree really has been passed against the children. But, there can be no dispute, as regards the proposition of law is concerned, that children, born of a marriage which is void or voidable in view of Section 16(3) of the Hindu Marriage Act, 1955 are entitled and are capable of possessing rights of succession as regards self-acquired

property of the deceased parents so far are concerned and section provides that children born of such marriage shall be deemed to be legitimate children notwithstanding the nullity of marriage. In view of the provisions of Section 8 of Hindu Succession Act read with schedule to the Succession Act and in particular in view of Section 16 which provides that if children born out of a void or voidable marriage, such children are entitled to inherit the property of their father or mother and of no other person in the order of succession as indicated in the schedule, and son or daughter born of null marriage will be deemed to be legitimate son or daughter entitled to inherit the property of their parents. In this view of the matter, the children born to the deceased from the present appellant, who was married in 1977, as well as present respondent 1, who was married in 1986, - both no doubt may be entitled to retiral benefits subject to law relating to services. As regards second marriage under Special Marriage Act, Section 18 provides that effect of marriage by registration under Chapter 3 is that marriage shall be deemed to have been solemnized under this Act and of children born after the date of ceremony of marriage (whose names shall also be entered in the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents. Proviso to Section 18 provides that nothing contained in this section shall be construed as conferring upon any such children any rights in or to the property of any person other than their parents. It provides that children born after solemnisation of marriage will be entitled to rights and it is further provided under Section 4 of the Special Marriage Act that one of the conditions for solemnisation of special marriages is namely, that neither party has a spouse living. When this essential condition is provided for solemnisation of marriage, the grant of certificate in such a case may not be of any help because the fact is at the time of Narayanaswamy's marriage with defendant 3 i.e., respondent 1 in 1986, that plaintiff i.e., appellant herein has been alive as the wife of deceased S. Narayanaswamy and plaintiff/appellant and Narayanaswamy were married in the year 1977 and the case of defendant 3/respondent 1 is that she married the deceased Narayanswamy in the year 1986, so in view of Section 4 and Section 18 of the Special Marriage Act it is beyond doubt that the second marriage cannot be deemed to be a validly performed marriage. But no doubt, as mentioned earlier, the children born from the two wives to the deceased are heirs of deceased Narayanaswamy. The children born from 1st respondent are also entitled to inherit the personal and separate property of the deceased Narayanaswamy, but they cannot claim property of any other person, while children of present appellant are entitled to inherit the personal property of deceased Narayanaswamy as well as ancestral property, if any.

13. In this case, there was no need to remand the case. The Appellate Court could have modified the decree on facts emerging and materials on record. It could have affirmed the findings of the Trial Court that so far as plaintiff/appellant is concerned, she is the legally wedded wife, married in the year 1977. Secondly, the present respondent 1 prima facie was married to the deceased, but as marriage had been performed during the lifetime of other spouse of deceased, with whom the marriage was not dissolved as such the respondent 1 was not entitled to inherit the property, separate or ancestral, left by the deceased. It could have further held that children born of Narayanaswamy from two ladies herein were entitled to the property involved in the suit equally, no doubt, subject to rule relating to grant of pension and other monetary benefits. If under service rules the

pension is payable to widow, only then the plaintiff i.e., present appellant would be definitely entitled to decree that plaintiff would be entitled to pension because she is the legally wedded wife of the deceased. As regards gratuity and provident fund accumulated, sons and daughters may be entitled to succeed in equal share with plaintiff i.e., present appellant. If the daughters of defendant 3 are minors, the Court could pass the decree that to the extent of share of her three daughters, the defendant 3 could act as guardian and the plaintiff could, 110 doubt, get the pension amount and so far as the provident fund or gratuity are concerned, plaintiff will only be entitled to the extent of her share and if her children are minors, she can realise on their behalf acting as guardian. Really it comes out to be that the plaintiff/appellant with her son and daughter may be entitled to 3/6 and 3/6 may go to three daughters of the defendant 3/respondent 1 and if the children of defendant 3 i.e., the present respondent 1 are minors, she can realise on their behalf as their guardian. But so far as pension amount is concerned, she has no right to it.

14. So, Trial Court's decree is modified. The plaintiff/appellant is held to be the legally wedded wife of the deceased Narayanaswamy and she is entitled to 50% of the provident fund and 50% of gratuity amount along with her children, subject to any earlier agreement reached between the parties. As regards pension is concerned, subject to service rules, the widow is entitled to family pension for her life. The defendant 3 i.e., the present respondent 1 not being the legally wedded wife, cannot claim any share in pensional benefits. It is only the appellant who is entitled to pensional benefits and the defendant 3/respondent 1 is restrained from taking any pension or pensionary amount which is payable only to the plaintiff/appellant. The Trial Court's decree is modified to this extent, The 2nd respondent is directed to make the payments of pensionary benefits and others keeping in view the observations and directions made herein above.

The appeal is thus allowed and order of remand is set aside and the trial decree is modified as and in above terms.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4215 of 2008 (Arising out of S.L.P. (C) No. 19455 of 2006)

Decided On: 07.07.2008

Appellants: Smt. G. RamaVs.Respondent: T.G. Seshagiri Rao (Dead) by LRs.

Hon'ble Judges: Arijit Pasayat and Lokeshwar Singh Panta, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Kiran Suri, S.J. Amith and Aparna Bhat, Advs.

For Respondents/Defendant: Raghvendra S. Srivatsa, Adv.

Subject: Family

Acts/Rules/Orders: Hindu Succession Act, 1956 - Sections 8, 14, 14(1), 14(2) and 30; Hindu Adoption and Maintenance Act, 1956 - Section 19 and 19(2); Civil Procedure Code (CPC), 1908 - Section 96 - Order 41; Shastric Hindu Law

Cases Referred: V. Tulasamma and Ors. v. Sesha Reddy (d) by Lrs. MANU/SC/0380/1977; Sadhu Singh v. Gurdwara Sahib Narike and Ors. MANU/SC/8475/2006; Raghubar Singh v. Gulab Singh MANU/SC/0415/1998; Mst. Karmi v. Amru and Ors. MANU/SC/0480/1971; Bhura and Ors. v. Kashi Ram MANU/SC/0265/1994; Sharad Subramanyan v. Soumi Mazumdar and Ors. JT 2006 (11) SC 535; Sharad Subramanyan v. Soumi Mazumdar and Ors. MANU/SC/2508/2006; Eramma v. Verrupanna and Ors. MANU/SC/0365/1965

Prior History: From the Judgment and final order dated 7/1/2004 of the High Court of Karnataka at Bangalore in R.F.A. No. 191/2000

Disposition: Appeal dismissed

Citing Reference:

***            Discussed

V. Tulasamma and Ors. v. Sesha Reddy (d) by Lrs. ***

Sadhu Singh v. Gurdwara Sahib Narike and Ors. ***

Raghubar Singh v. Gulab Singh ***

Mst. Karmi v. Amru and Ors. ***

Bhura and Ors. v. Kashi Ram ***

Sharad Subramanyan v. Soumi Mazumdar and Ors. ***

Eramma v. Verrupanna and Ors. ***

JUDGMENT

Arijit Pasayat, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge of the Karnataka High Court allowing the appeal filed in terms of Section 96 read with Order XLI of the Code of Civil Procedure, 1908 (in short the `C.P.C').

3. Background facts in a nutshell are as follows: The respondent T.G. Seshagiri Rao who after his death has been substituted by his legal heirs, had filed a suit with inter alia prayer to declare him as an absolute owner of the plaint schedule property and to direct the defendant (appellant herein) to deliver vacant possession of the suit schedule property. The suit property is a residential house bearing No. 257/1, 5th Cross, Kempegowda Nagar, Bangalore measuring East West 15' x 5' and north south 35'.

4. The case set out by the parties is as follows:

The schedule premises was purchased by Kate T.G. Seshagiri Rao along with his uncle one T.K. Vasudeva Murthy under a registered sale deed dated 5.6.1963 for a valuable sale consideration of Rs. 20,000/- and that his uncle T.K. Vasudeva Murthy relinquished his right, title and interest which he had over the suit schedule property in favour of the plaintiff under a registered release deed dated 17.4.1989 and by virtue of the release deed, the plaintiff became the absolute owner of the suit schedule property. The defendant is the daughter in law of T.K. Vasudeva Murthy who lost her husband in an accident and that she was permitted to reside in the house as a licensee.

5. The suit was filed seeking possession, as the defendant refused to vacate the premises in spite of repeated requests and a legal notice.

6. The defendant contested the case. According to her written statement, Sri T.K. Vasudeva Murthy has no right to execute the sale deed and that Vasudeva Murthy purchased the suit schedule property along with the plaintiff out of the joint family nucleus and that joint family had consisted of Vasudeva Murthy and his son Venkata Krishna, the deceased husband of the defendant. According to her, after the death of her husband, she and her daughter Soumya were also having equal rights along with Vasudeva Murthy. It is her further case that she has been residing in the schedule premises not as a licensee but in her own right as a daughter-in-law and that the property was given to her by her in-laws till the marriage of her daughter Soumya and to enjoy the same for life with an independent title. She also contended that she was put in possession of the suit schedule property by Vasudeva Murthy with an understanding that she would remain in possession in lieu of maintenance and that she has acquired ownership as per the provisions of Section 14 of the Hindu Succession Act, 1956 (in short the `Act').

7. Based on the above pleadings, the following issues were framed:

1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property as on the date of filing of the suit?

2. Whether the plaintiff further proves that he is entitled to the delivery of vacant possession of the schedule property from the defendant?

3. Whether the plaintiff is entitled to past and future mesne profits as claimed?

4. Whether the defendant proves that she has perfected her title to the suit schedule property by way of adverse possession?

5. Whether the court fee paid is insufficient?

6. Whether the defendant proves that she has got a legal right to the extent of her share in the suit schedule property?

7. To what order and decree?

8. The plaintiff examined himself as PW-1. He relied upon Exs.P1 to P9. The defendant examined himself as DW 1. She did not produce any documents before the trial court. The trial Court on appreciation of the evidence adduced by the parties, held issues 1 and 2 in the negative and further held that the plaintiff is entitled for undivided half share in the suit schedule property and entitled for partition and separate possession of his half share. In respect of issue No. 3, it was held that "entitled for future mesne profits from the date of the suit till the date of possession in respect of his half share". Issue No. 4 was answered in the negative. Issue No. 5 was held in the affirmative. Issue No. 6 in affirmative holding that the defendant is entitled to claim half share. Ultimately, the suit of the plaintiff was decreed in part declaring that he has become the absolute owner of the undivided half share and entitled for partition and separate possession of his half share. The said judgment and decree was called in question before the High Court.

9. The High Court found that the basic question related to Section 14(1) of the Act. It was noted that a suit OS No. 4949 of 1991 for partition was filed by the defendant, appellant herein. It was held that without any material, the trial court held that defendant had become absolute owner pursuant to Section 14(1) of the Act.

10. Learned Counsel for the appellant submitted that the true scope and ambit of Section 14 of Act were lost sight of by the High Court.

11. It is pointed out that the property in question was given to her in lieu of maintenance and therefore she had to shift from the main portion of the building to the out house. It is pointed out that the claim is against the husband and not qua recovering lost property. Strong reliance is placed on a decision of this Court in V. Tulasamma and Ors. v. Sesha Reddy (d) by Lrs. MANU/SC/0380/1977.

12. It is pointed out that after the death of her husband, attempt of her father-in-law and the original plaintiff was to deprive her of the property over which she had legitimate ownership.

13. It is pointed out that she was married to T.V. Venkatakrishna on 4.7.1979 and her husband died on 11.7.1980 and the child was born to her on 9.2.1981. The release deed was purportedly executed by her father-in-law in 1989. The admitted position is that her

father-in-law wanted to deprive her of the legitimate rights and for that purpose release deed was executed.

14. In response, learned Counsel for the respondent submitted that the factual scenario needs to be noted. On 5.6.1963 the original plaintiff Seshagiri and Vasudeva Murthy who was his uncle and the father-in-law of the defendant/ appellant purchased the property jointly. They were partners in a partnership firm which was dissolved on 16.8.1971. On 8.3.1981, portion of the land purchased jointly by Sheshagiri and Vasudeva Murthy was sold to one Puttann. There was no challenge to it. On 17.4.1989 Vasudeva executed the release deed for consideration of 20,000/- in favour of Sheshagiri. On 4.1.1990 the suit relating to the present dispute i.e. OS No. 188 of 1990 was filed. Initially in the written statement filed, defendant took the stand that the property in question was joint family property and claimed half share. Subsequently, the written statement was amended. Plea was taken that she was permitted to stay in lieu of maintenance and so the property was of absolute property and in terms of Section 14(1) of the Act. On 19.8.1991 O.S. No. 4949 of 1991 i.e. suit for partition was filed claiming the partition. There is no challenge to the release deed dated 17.4.1989 in the suit for partition. Appellant took the stand that it was a joint family property and, therefore, he had half share. No specific issue regarding the nature of the property was framed. There was no issue relating to Section 14(1) of the Act and there was also no evidence led in that regard. Strangely the trial court treated the suit as one for partition though the suit was for declaration. There was no counter-claim filed by defendant- Rama. It is pointed out that Vasudeva Murthy was alive when the trial of the suit proceeded. Before the High Court an undertaking was given to vacant the premises which was accepted subject to filing of an undertaking which was in fact filed on 21.5.2004 after delivery of the judgment on 7.1.2004. Two years after a review petition was filed on 10.8.2006 and the same was withdrawn on 30.8.2006.

15. As rightly contended by learned Counsel for the respondent there was no issue framed regarding Section 14 of the Act. Even no evidence was led specifically to show that in lieu of maintenance she was permitted to possess the property.

16. It is relevant to note that the trial court made a reference to Section 19 of Hindu Adoption and Maintenance Act, 1956 (in short the `Maintenance Act'). Unfortunately the High Court did not take note of Sub-section (2) of Section 19 of the Maintenance Act.

17. Section 14(1) of the Act reads as follows:

14. (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 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.

18. Section 19 of the Maintenance Act reads as follows:

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-

from the estate of her husband or her father or mother, or

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 father-in-law 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 case on the re- marriage of the daughter-in-law.

19. In Sadhu Singh v. Gurdwara Sahib Narike and Ors. MANU/SC/8475/2006 it was inter alia observed as follows:

5. In the case on hand, since the properties admittedly were the separate properties of Ralla Singh, all that Isher Kaur could claim de hors the will, is a right to maintenance and could possibly proceed against the property even in the hands of a transferee from her husband who had notice of her right to maintenance under the Hindu Adoptions and Maintenance Act. No doubt, but for the devise, she would have obtained the property absolutely as an heir, being a Class I heir. But, since the devise has intervened, the question that arises has to be considered in the light of this position.

xxx xxx xxx

11. On the wording of the section and in the context of these decisions, it is clear that the ratio in V. Tulasamma v. V. Shesha Reddi (supra) has application only when a female Hindu is possessed of the property on the date of the Act under semblance of a right, whether it be a limited or a pre-existing right to maintenance in lieu of which she was put in possession of the property. The Tulasamma ratio cannot be applied ignoring the requirement of the female Hindu having to be in possession of the property either directly

or constructively as on the date of the Act, though she may acquire a right to it even after the Act. The same is the position in Raghubar Singh v. Gulab Singh MANU/SC/0415/1998 wherein the testamentary succession was before the Act. The widow had obtained possession under a Will. A suit was filed challenging the Will. The suit was compromised. The compromise sought to restrict the right of the widow. This Court held that since the widow was in possession of the property on the date of the Act under the will as of right and since the compromise decree created no new or independent right in her, Section 14(2) of the Act had no application and Section 14(1) governed the case, her right to maintenance being a pre-existing right. In Mst. Karmi v. Amru and Ors. MANU/SC/0480/1971 the owner of the property executed a Will in respect of a self-acquired property. The testamentary succession opened in favour of the wife in the year 1938. But it restricted her right. Thus, though she was in possession of the property on the date of the Act, this Court held that the life estate given to her under the Will cannot become an absolute estate under the provisions of the Act. This can only be on the premise that the widow had no pre- existing right in the self-acquired property of her husband. In a case where a Hindu female was in possession of the property as on the date of the coming into force of the Act, the same being bequeathed to her by her father under a will, this Court in Bhura and Ors. v. Kashi Ram MANU/SC/0265/1994 after finding on a construction of the will that it only conferred a restricted right in the property in her, held that Section 14(2) of the Act was attracted and it was not a case in which by virtue of the operation of Section 14(1) of the Act, her right would get enlarged into an absolute estate. This again could only be on the basis that she had no pre-existing right in the property. In Sharad Subramanyan v. Soumi Mazumdar and Ors. JT 2006 (11) SC 535 this Court held that since the legatee under the will in that case, did not have a pre-existing right in the property, she would not be entitled to rely on Section 14(1) of the Act to claim an absolute estate in the property bequeathed to her and her rights were controlled by the terms of the will and Section 14(2) of the Act. This Court in the said decision has made a survey of the earlier decisions including the one in Tulasamma. Thus, it is seen that the antecedents of the property, the possession of the property as on the date of the Act and the existence of a right in the female over it, however limited it may be, are the essential ingredients in determining whether Sub-section (1) of Section 14 of the Act would come into play. What emerges according to us is that any acquisition of possession of property (not right) by a female Hindu after the coming into force of the Act, cannot normally attract Section 14(1) of the Act. It would depend on the nature of the right acquired by her. If she takes it as an heir under the Act, she takes it absolutely. If while getting possession of the property after the Act, under a devise, gift or other transaction, any restriction is placed on her right, the restriction will have play in view of Section 14(2) of the Act.

12. When a male Hindu dies possessed of property after the coming into force of the Hindu Succession Act, his heirs as per the schedule, take it in terms of Section 8 of the Act. The heir or heirs take it absolutely. There is no question of any limited estate descending to the heir or heirs. Therefore, when a male Hindu dies after 17.6.1956 leaving his widow as his sole heir, she gets the property as class I heir and there is no limit to her estate or limitation on her title. In such circumstances, Section 14(1) of the Act would not apply on succession after the Act, or it has no scope for operation. Or, in

other words, even without calling in aid Section 14(1) of the Act, she gets an absolute estate.

20. In Sharad Subramanyan v. Soumi Mazumdar and Ors. MANU/SC/2508/2006 this Court observed as follows:

Mr. Bhaskar P. Gupta, learned Senior Counsel for the respondents, rightly distinguished all these cases, as it was clearly proved therein, that the properties had been given to a female Hindu, either in recognition of or in lieu of her right to maintenance under the Shastric Hindu Law or under the Hindu Adoption and Maintenance Act, 1956. Consequently, these were instances where the dispositions of property, albeit as a limited estate, would blossom into a full interest by reason of Sub-section (1) of Section 14 of the Act.

Learned Counsel further contended that there is no absolute rule that all properties demised to a female Hindu were necessarily in recognition of or in lieu of her right to maintenance. It was possible, even after the Act came into force, to create a limited estate by reason of a gift or will. Such a situation would fall within the ambit of Sub-section (2) of Section 14 of the Act as long as it was not in recognition of or in lieu of a right to maintenance under the Shastric Hindu Law or under a statute. Learned Senior Counsel relied on Section 30 of the Act, which recognises the right of a Hindu to dispose of self-acquired property by Will. Mr. Gupta relied on the judgment of this Court in Bhura and Ors. v. Kashi Ram MANU/SC/0265/1994 which was also a case of limited estate conferred on a female Hindu by a Will. This Court held that, upon a proper construction of the Will, the bequeathal in favour of the female Hindu was clearly indicative of:

...the testator's intention of only creating a life interest in her and nothing more and the various expressions used therein are indicative of and are reconcilable only with the hypothesis that the testator was creating an estate in favour of...(the female Hindu)...only for her lifetime and not an absolute estate. MANU/SC/0265/1994

Thus, in view of the fact that there were no indications, either in the Will or externally, to indicate that the property had been given to the female Hindu in recognition of or in lieu of her right to maintenance, it was held that the situation fall within the ambit of Sub-section (2) of Section 14 of the Act and that the restricted life estate granted to the female Hindu could not be enlarged into an absolute estate. Learned Counsel for the respondents relied strongly on this judgment and contended that there was no proposition of law that all dispositions of property made to a female Hindu were necessarily in recognition of her right to maintenance whether under the Shastric Hindu Law or under the statutory law. Unless the said fact was independently established to the satisfaction of the court, the grant of the property would be subject to the restrictions contained therein, either by way of a transfer, gift or testamentary disposition. Learned Counsel also distinguished the three cases cited by the learned Counsel for the appellant that in each, the circumstances clearly indicated that the testamentary disposition was in lieu of the right of maintenance of the female Hindu. We think that this contention is well merited and needs to be upheld.

21. In Eramma v. Verrupanna and Ors. MANU/SC/0365/1965 it was observed by this Court that mere possession does not automatically attract Section 14 of the Act.

22. As noted above, no issue was framed and also no evidence was led to substantiate the plea that the appellant was occupying the premises in lieu of maintenance. In view of this factual position and the proposition of law referred to above, inevitable conclusion is that the appeal is without merit, deserves dismissal, which we direct. No costs.