Chanchal Chopra v. Subhash Duggal & Ors.

1. Plaintiff Chanchal Chopra has filed the suit CS(OS) 122/2017 seeking partition of the suit property i.e. E-79, Anand Niketan admeasuring 197.50 sq.yds. and declaring the plaintiff to be owner of 1/4th share of suit property besides injunction, rendition of accounts, etc. The defendant No.1 and 2 are the brothers of plaintiff and defendant No.3 her sister. During the pendency of the present suit plaintiff passed away and thus her legal heirs i.e. her husband, son and daughter have been impleaded as her legal heirs.

2. Case of the plaintiff in the plaint is that the father of the deceased plaintiff and defendants, Late Shri Ram Chand Dugal executed his last Will 2020:DHC:1776 and testament dated 29th June, 1998 bequeathing his entire estate including the suit property in favour of his wife Late Smt. Agyawati Duggal absolutely. Late Shri Ram Chand Duggal passed away on 1st December, 1999 and thus as per his Will on his death, his entire estate devolved solely and exclusively on his wife late Smt. Agyawati Duggal. Smt. Agyawati Duggal had applied for conversion of suit property from leasehold to freehold on 1st June, 2007 whereafter a conveyance deed dated 8th October, 2007 was executed in respect of the suit property which thereafter stood mutated in the name of Smt. Agyawati Duggal. Late Smt. Agyawati Duggal passed away on 16th March, 2012 without leaving behind any Will or testament and leaving behind 5 legal heirs in Class 1. Further, after the death of Late Smt. Agyawati Duggal, elder sister of the plaintiff and defendants Ms. Prem Lata died issueless on 7th August, 2016 without leaving behind any Will or testament, thus leaving behind the plaintiff and defendants as her sole legal heirs. Plaintiff thus claims that the plaintiff and the three defendants are entitled to 1/4th Share in the entire estate of Late Smt. Agyawati Duggal. It is further stated that the suit property comprises of three floors and the terrace; the ground floor comprising of three rooms out of which one room and one bathroom have been rented out and the two other rooms on the ground floor are lying unused. Defendant No.1 and 2 who are holding all the movable assets of the deceased mother including her bank lockers, fixed deposit, bank accounts, mutual funds, jewellery, etc., are also receiving the rental income from the one room rented out on the ground floor and despite the plaintiff seeking her share the defendants have failed to give the same.

3. Written statements have been filed to the plaint by defendant No.1, 2 and 3. Defendant No.3 in her written statement has supported the stand of the plaintiff. However, the defendant No.1 and 2 i.e. the two brothers claim that the plaintiff and defendant No.3 are not entitled to any share in the suit property belonging to Late Shri R.C. Duggal for the reason in his life time Shri R.C. Duggal executed a Will dated 7th May, 1979 whereby he bequeathed the suit property on the defendant No.1 and 2 and only a life interest in the suit property was given to Smt. Agyawati Duggal who died on 16th March, 2012 and after her death as per the registered Will dated 7th May, 1979 the suit property devolved on defendant No.1 and 2 in equal shares. It is further stated that the Will dated 29th June, 1998 relied upon by the plaintiff is a forged and fabricated document and does not bear the signatures of Late Shri Ram Chand Duggal. The Will has not been filed in original and therefore is a fabricated document. The Will dated 7th May, 1979 has been signed by the Late father of the parties, which is duly attested by two attesting witnesses. At the time of execution of the Will dated 7th May, 1979 father of the plaintiff and defendants was in sound disposing mind. Plaintiff in the plaint has concealed the material fact of execution of the Will dated 7th May, 1979. It is further claimed that based on the forged and fabricated Will dated 29th June, 1998 the plaintiff and defendant No.3 sought mutation and a conveyance deed of the suit property was executed and thus the mutation dated 27th September, 2000 and conveyance deed dated 8th October, 2007 cannot be relied upon. The defendant No.1 and 2 have also filed a complaint before the Vice-Chairman, DDA seeking cancellation of the mutation deed dated 27th September, 2000 and conveyance deed dated 8th October, 2007. The defendant No.1 and 2 have thus denied that Late Shri Ram Chand Duggal left a Will and testament dated 29th June, 1998 in favour of his wife Late Smt. Agyawati Duggal, but admit the execution of the Will dated 7th may, 1979 whereby life interest in the suit property was created in favour of Smt. Agyawati Duggal.

4. By this application under Order XII Rule 6 CPC plaintiff seeks a judgment on admission. Case of the plaintiff is that the defendant No.3 having admitted the stand of the plaintiff and herself claiming 1/4th share, the plaintiff is entitled to a judgment qua defendant No.3. As against defendant No.1 and 2, it is claimed that even as per the case of defendant No.1 and 2 Late father of the parties had left a Will dated 7th May, 1979, and based on the Will dated 7th May, 1979 the defendant No.1 and 2 are admitting the following facts thereby plaintiff being entitled to a decree even against defendant no. 1 and 2: i) That the conveyance deed dated 8th October, 2007 was executed in the name of Late Ms. Agyawati Duggal with the consent of all legal heirs of Late Mr. Ram Chand Duggal and the suit property stands mutated in her name ever since. ii) That at the time of execution of the conveyance deed dated 8th October, 2007 the defendant No.1 and 2 furnished NOCs to DDA in favour of Late Ms. Agyawati Duggal. iii) That Late Ms. Agyawati Duggal died intestate.

5. Plaintiff thus claims that based on the Will dated 7th may 1979 whereby Late Sh. Ram Chand Duggal created life interest in favour of Late Smt. Agyawati Duggal and admission of defendant No.1 and 2 who have admitted that conveyance deed dated 8th October, 2007 stood executed in favour of Late Smt. Agyawati Duggal and she died intestate, the law of intestate succession shall automatically apply and each of her legal heir will be entitled to 1/5th share and on the demise of the third sister late Ms. Prem Lata, the plaintiff and the three defendants would be entitled to 1/4th share each in the suit property.

6. The only defense taken by defendant No.1 and 2 to oppose the instant suit is to allege that the Will dated 7th May, 1979 created only life interest in favour of Late Smt. Agyawati Duggal and consequently no interest in the suit property was left with Late Smt. Agyawati Duggal on her death so that the same could devolve intestate and must only devolve on the basis of the Will dated 7th May, 1979. Learned counsel for the plaintiff states that the defence taken is legally untenable and a moonshine defense for the reason the Will dated 7th May, 1979 relied upon by the defendants stood revoked by Late Shri Ram Chand Duggal by the registered Will dated 29th June, 1998 and the subsequent conveyance deed dated 8th July, 2010 and the conveyance deed dated 8th July, 2010 having been admitted by defendant No.1 and 2 thereby making it immaterial as to which Will of Late Shri Ram Chand Duggal is valid.

7. It is further stated that as long as Late Smt. Agyawati Duggal is the admitted owner of the suit property by virtue of Section 14 of the Hindu Succession Act, 1956 she acquired absolute interest in the suit property and since she did not leave behind any Will, the suit property must devolve on the basis of intestate succession on the legal heirs. It is well settled that Section 14 of the Hindu Succession Act, 1956 creates absolute and full ownership rights in favour of female Hindus and wherever there is any preexisting right of a female Hindu in a property, Sub-Section 2 of Section 14 of the Hindu Succession Act, 1956 does not apply. Therefore, even if the defendant No.1 and 2 are able to prove the Will dated 7th May, 1979 as the last valid Will of Late Shri Ram Chand Duggal they will not succeed in defeating the rights of the plaintiff and the counter claimant, defendant No.3.

8. In reply to this application case of defendant No.1 and 2 is that admittedly Late Shri R.C. Duggal was the absolute owner of the suit property. However they plead that during his life time he executed a Will dated 7th May, 1979 thereby bequeathing the suit property to his two sons i.e. defendant No.1 and 2 equally and only a life time interest in the suit property was given to Smt. Agyawati Duggal who died on 16th March, 2012 and after her death as per the registered Will dated 7th May, 1979 the suit property devolved on defendant No.1 and 2.

9. Thus, the issues in the present application are that based on the admission of the defendant No.1 and 2 in respect of the Will dated 7th May, 1979 whereby a life interest was created in favour of Smt. Agyawati Duggal whether by virtue of Hindu Succession Act, 1956 Smt. Agyawati Duggal became the absolute owner of the suit property and secondly, whether by virtue of conveyance deed having been executed in favour of Smt. Agyawati Duggal she became the absolute owner of the suit property thereby resulting in the devolution of the suit property by intestate succession on her legal heirs on her death.

10. Supreme Court in the decision reported as (1977) 3 SCC 99 V.Tulasamma Vs. Sesha Reddy (Dead) by L.Rs summarized the rights of a Hindu woman to maintenance based on the authorities and the Shastric Hindu Law on the subject and also interpreted Section 14(1) and 14(2) of the Hindu Succession Act 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 a 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 virtue of which the wife becomes a sort 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. xxx xxx

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 Sections 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 preexisting 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 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 pre-existing 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-section (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 without 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.”

11. Following the decision in V.Tulasamma (supra) after discussing various other decisions on the issue, Supreme Court in 2016 (2) SCC 56 Jupudy Pardha Sarathy Vs. Pentapati Rama Krishna & Ors. dealing with the right of property of a woman under Section 14 of the Hindu Succession Act held: “2. The only question that needs consideration in this appeal is as to whether the High Court is correct in law in interpreting the provisions of Section 14 of the Hindu Succession Act, 1956 (for short “the Act”) in arriving at a conclusion that the widow of the deceased P. Venkata Subba Rao acquired an absolute interest in the property by the operation of Section 14 of the Act. xxxx xxxx

8. Before we decide the question involved in this appeal we would like to reproduce the contents of the will (Ext. A-1) which is as under: “I, Pularvathi Venkata Subba Rao, s/o late Pularvathy Venkamma Vysya, Business, r/o Rajahmundhry, have executed the will dated 24-8-1920 with good consciousness and wisdom. I am now approximately 53 years. Now I have less physical strength and consequently I may not survive for longer period, hence I have proposed to give all my properties both movable and immovable mentioned in the schedule below by way of this will. My first wife died issueless. My second wife got two sons by name Manikyaro and Narasimha Rao and a daughter by name Nagarathnamma. My second wife also died. Thereafter I married Veeraraghavamma my third wife and she is alive. She has not begotten any children. I have house property bearing Municipal D. No. 6/875, another house bearing D. No. 6/876 and also 5 shop rooms abutting to them with vacant house site covered by D. No. 6/870 in Innespeta, Rajahmundry Village, Rajahmundry Sub-Registry, E.G. Distt. I have wetland of extent Ac.15.17 cents in Rustumbada Village, Naraspuram Sub-Registry, Naraspuram Taluk. The said landed property was in the name of my second wife and after her lifetime my two sons mentioned above got the same mutated it in their names. I have a policy bearing No. 23232 in Oriental Life Insurance Company and I have to receive monies from the said policy and also silver, gold, brass articles household utensils Beeruva, furniture, iron safe, etc., I have made the following dispositions which are to take place after my lifetime. My third wife Veeraraghavamma shall enjoy for life the tiled house with site and compound wall and with half right in the well covered by Municipal D. NO. 6/875, Rajahmundry and after lifetime of my wife my second son Narasimha Rao shall have the property with absolute rights such as gift, sale, etc. My second son Narasimha Rao shall have absolute rights such as gift and sale in respect of the tiled house bearing D. No. 6/876 and the 5 shop rooms covered by D. NO. 6/870 and the site abutting the above two properties with Chavidi and one big latrine out of the two and that my wife Veeraraghavamma shall enjoy for life the small latrine covered by D. No. 6/870 and after her lifetime my son Narasimha Rao shall have the property with absolute right. The said Veeraraghavamma is entitled to fetch water from the well situated in backyard of house bearing D. No. 6/870. My eldest son Maniyarao shall have absolute rights such as gift and sale, etc., in respect of Ac.15.17 cents of Zeroyiti wetland of Rustumbada Village Narasapuram Taluk and my eldest son Maniyarao shall pay Rs 650 which I am liable to pay to her and thus either Nagarathnamma or any one has got no right in the said property. The amount receivable from the Insurance Company referred above shall be recovered and my two sons, daughter and my wife, all the four shall share the same equally and that the ornaments lying with them shall take the same absolutely and that one shall not claim or demand for any owelties against another. This will I have executed with full and good consciousness and the same shall come into force after my lifetime. The properties mentioned in this will are all my self-acquired properties and I did not get any ancestral properties. I reserve my right to change the contents of the will during my lifetime. Signed Pularvati Venkata Subba Rao Attesting witnesses Modali Subbarayudu Yendi Surayya Scribed by Pularvati Venkata Subba Rao with his own handwriting The contents of the said will shall come into force after my lifetime. Signed by Pularvati Venkata Subbarao” xxxx xxxx

21. A three-Judge Bench of this Court in Munnalal v. Rajkumar [Munnalal v. Rajkumar, AIR 1962 SC 1493], while interpreting the provisions of Section 14(1) of the Act observed: (AIR pp. 1499-1500, para 16) “16. By Section 14(1) the legislature sought to convert the interest of a Hindu female which under the Shastric Hindu Law would have been regarded as a limited interest into an absolute interest and by the Explanation thereto gave to the expression „property‟ the widest connotation. The expression includes property acquired by a Hindu female 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. By Section 14(1) manifestly it is intended to convert the interest which a Hindu female has in property however restricted the nature of that interest under the Shastric Hindu Law may be into absolute estate. Pratapmull case [Pratapmull Agarwalla v. Dhanabati Bibi, 1935 SCC OnLine PC 55: (1935-36) 63 IA 33] undoubtedly laid down that till actual division of the share declared in her favour by a preliminary decree for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, but that rule cannot in our judgment apply after the enactment of the Hindu Succession Act. The Act is a codifying enactment, and has made far-reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate. She is under the Act regarded as a fresh stock of descent in respect of property possessed by her at the time of her death. It is true that under the Shastric Hindu Law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance. She was not entitled to claim partition. But the legislature by enacting the Hindu Women's Rights to Property Act, 1937 made a significant departure in that branch of the law; the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned she became owner in severalty of her share, subject of course to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil. It cannot be assumed having regard to this development that in enacting Section 14 of the Hindu Succession Act, the legislature merely intended to declare the rule enunciated by the Privy Council in Pratapmull case. Section 4 of the Act gives an overriding effect to the provisions of the Act.” xxxx xxxx

22. Reference may also be made to a three-Judge Bench decision of this Court in Nirmal Chand v. Vidya Wanti [Nirmal Chand v. Vidya Wanti, (1969) 3 SCC 628]. In that case, by a registered document of partition, the related right was given to the widow — the user of the land with the condition that she will have no right to alienate in any manner. This Court holding that the case falls under Section 14(1) of the Act held as under: (SCC p. 631, para 6)