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. Nagarathnamma

Vs.
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. Rama

Vs.
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.