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Introduction
Seldom have we come across cases in which the understanding of a Lawyer is challenged to the core. Only Lawyers who have in depth knowledge of the law and its intricacies can fight these cases. One such case was “Jumma Masjid, Mercara Vs Kodimaniandra Deviah” which deals with property law on such a level that it truly enriches your legal knowledge.
As it was difficult to discuss this Judgment and the above said terms in a single Article I am dividing this article into two parts. In these articles we will understand the meaning of the terms like Issueless, Spes Successionis, Absolute Owner of a Property, Life Interest Holder in a Property, Mutation etc. Also we will know about the rights of a Hindu Widow without children before passing of Hindu Succession Act and afterwards i.e. today. The discussion about a Bona Fide Purchaser or Innocent Purchaser who did not know of the fraud or error committed on him by the Seller is also there. Furthermore this Article contains Two very specific advices from the Author of this Article, who is also a Property Lawyer, to Purchasers of Immovable Property for protection from fraud.
So, let’s see what this case is about.
Breif Facts
Basappa had 3 sons Santhappa, Nanjundappa and Basappa (let’s say A, B & C respectively) and a daughter namely Mallamal. While A died without marriage, B & C each died without any children i.e. survived by their wives only. (A person dying without a child is called “Issueless” in legal jargon). Mallamal also had no living sons but had 3 grandsons namely Basappa, Mallappa and Shanthappa (let’s say XYZ). Now in 1910 B’s wife died and as it was an era before the Hindu Succession Act, 1956 was enacted we have to understand the dynamics as to how a widow’s property devolved.
Before 1956 if a widow was issueless (i.e. without any children), she did not have any absolute right in husband’s property and she was entitled to only a life interest in the property which means that she could only enjoy the property till her death after which the property will pass onto the husband’s male heirs in the property like to Paternal Uncle (colloquially called Chacha, Tau etc. in Northern India) or their sons/grandsons in case paternal uncles have died. But what if the there was no male alive on the paternal side? The property then goes to Paternal Aunt (colloquially called Bua) or her sons/grandsons in case of Paternal Aunt’s death. But what if the paternal Aunt is also not alive? Then the husband’s property will be passed to the Maternal Uncles (colloquially called Mama) or in case of death of maternal uncle to his son. That’s the reason that the males on the paternal/maternal side are generally called the Reversioners as the property of a widow ultimately reverts to them.(Similarly the Landlord of a property is called the Ultimate Reversioner as whenever the tenant vacates the leased property it will revert back to the Landlord).
But what is meant by the phrase that “the widow is not an Absolute Owner but had a limited life interest in her husband’s property”? When someone is an Absolute Owner of a property he can deal with the property in any manner he wants. Absolute Ownership denotes a bundle of rights like an Absolute Owner has a right to lease the property and collect its rent, he has a right to reside in the property, he has the right to mortgage the property and finally he has the right to sell his property. Before 1956 a widow was not an Absolute Owner of her husband’s property but only a life interest holder. This essentially meant that she could not sell her husband’s property or mortgage it and if she does so, these actions will be valid till she lives and would become void after her death. What she had was the right to enjoy her husband’s property till her life only. (Though there were some exceptions to it like if the property is not enough to maintain her she can sell it or if she wants to perform some rituals which will bring her deceased husband salvation (Moksha) and she does not have enough money for these rituals then she can sell the property, despite the fact that she is only a life interest holder). Though today, after passing of Hindu Succession Act, situation has changed drastically and after the death of her husband a widow is an Absolute Owner of the property by virtue of Section 14 of the said Act because if a Hindu Male dies and he does not have any children and mother alive, according to Section 8 of Hindu Succession Act his Separate Property will be given to his wife in terms os Schedule I.
Now again coming back to the facts of the case. As B’s wife died X, Y and Z claimed that the property on the ground that being a Hindu Joint Family Property and there being no child in the family the property has reverted back to them and on the strength of this theory they sold the property to the Respondent vide a Sale Deed. In the Sale Deed it was very clearly written that the property was a Hindu Joint Family property belonging to A, B & C and after the death of B’s wife, as A, B and C had no son, the property devolved (meaning transferred) on them.[First Advice: It is very important to demand from the Seller (also called the Vendor) of a property to write in the sale deed as to how he obtained the property from the previous owner and if possible also the explanation as to how the previous owner became the holder of the property. This chain of ownership protects the Purchaser (also called the Vendee) from any potential fraud about which he may become aware later, as continuous title chain means that Seller has clear title].
But Gangamma i.e. C’s wife challenged selling of the property by X,Y and Z on the ground that the property was not a Hindu Joint Family property but separate property of her husband C and hence being a separate property only Gangamma is entitled to it.
Now let’s understand what “Separate Property” means. Separate Property is a term used to connote a property which is purchased by a person from his own income and own resources and not from someone else’s money ( in which case it will be called Benami) or Hindu Joint Family funds. So if a property is separate property of a person, after that person’s death only his wife (in case he doesn’t have any children) will be entitled to it and none of his brothers or sisters claim any right in the said property. But in cases where a property is said to be purchased from Hindu Joint Family funds things will be entirely different as all brothers and sisters will be entitled to a share in the property on Partition.( Continued with this Article…)
Parveen Semwal
Advocate, High Court of Delhi and Supreme Court of India