Himachal Pradesh High Court
Jethu Ram vs Bhimu Through Her Lrs on 28 May, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
R.S.A. No. 640/2007
Decided on: 28.5.2019
.
Jethu Ram ...Appellant
Versus
Bhimu through her LRs ....Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No
For the appellant: Mr. Ajay Kumar, Senior Advocate with
Mr. Dheeraj K. Vashisht, Advocate.
For the respondents: None.
Tarlok Singh Chauhan, Judge
The plaintiff is the appellant, who aggrieved by the
judgments and decrees concurrently passed by the learned
courts below, has filed the instant appeal.
The parties shall be referred to as the "plaintiff"
and "defendant".
2 Briefly stated the facts leading to filing of the
present appeal are that late Bihu, husband of the defendant,
on 28.6.1986 made a grant of the suit land/property in
1
Whether reporters of Local Papers may be allowed to see the Judgment ?Yes
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
2
favour of the defendant on account of maintenance as finds
recorded in Cr. Revision No.8M/85. This grant was upheld
.
even by this Court in RSA No. 266/2004 and thereafter the
defendant obtained the possession of the suit property in
Execution Petition No.1X/05, decided on 27.5.2005. It was
further averred that the grant made by late Bihu to the
defendant was conditional to the effect that the same was till
the life time of the defendant and she would not be able to
transfer the same by way of sale, will, gift or in any other
manner during her life time. Late Bihu made a registered will
in favour of the plaintiff on 27.8.1982 vide which he was
entitled to entire estate of Bihu and also as an adopted son,
which fact was also mentioned in the will. Subsequently
when the possession of the suit property was handed over to
the defendant on 24.5.2005 at the spot, the plaintiff
requested that the entry, as stated in the compromise before
the learned Additional Sessions Judge, Mandi dated
28.6.1986, be incorporated in the revenue papers, but the
same was not done. Hence, the suit.
3 The suit was resisted and contested by the
defendant by filing written statement, wherein preliminary
objections regarding maintainability, cause of action,
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
3
estoppel, valuation and locus standi were taken. On merits, it
was denied that the grant of the suit land/property made by
.
late Bhiu to defendant was conditional to the effect that the
same was during her life time. It was further averred that
there was no such condition ever imposed or agreed by her
in the compromise executed before the learned Additional
District Judge, Mandi on 18.6.1986. She claimed herself to
be an individual
owner of the suit land/property having
every right to enjoy and develop the same as she wished. The
plaintiff had no right, title or interest over the suit land/
property. It was further contended that neither the plaintiff
had right to get executed a registered will in his name of the
suit land/property neither he was the adopted son of late
Bihu.
4 The plaintiff filed replication to the written
statement, wherein averments made in the written statement
were denied and the averments made in the plaint were re
affirmed and reasserted.
5 On the pleadings of the parties, the learned trial
court on 5.11.2005 framed the following issues:
1. Whether the plaintiff is entitled for the decree of
declaration that the defendant is limited owner
in the suit land ? OPP
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
4
2. Whether the plaintiff is entitled for the relief of
permanent prohibitory injunction against the
defendant? OPP
.
3. Whether the plaintiff is entitled for the
reversionary rights after the death of defendant?
OPD
4. Whether the present suit is not maintainable?
OPD
5. Whether the plaintiff has no locus standi to file
the present suit? OPD
6. Whether the plaintiff has no enforceable cause of
action? OPD.
7. Whether the plaintiff has estopped to file the
present suit by his act, conduct and deeds?
OPD.
8. Whether the suit has not been properly valued
for the purpose of court fee and jurisdiction? OPD
9. Relief.
6 After recording the evidence and evaluating the
same, the learned trial court vide judgment and decree dated
13.6.2006 dismissed the suit filed by the plaintiff with costs
by concluding that the suit land/property acquired by the
defendant under Section 14 (1) of the Hindu Succession Act
(for short, the "Act") in lieu of maintenance and the same was
possessed by her on the date of commencement of the Act,
which had ripened into full ownership and therefore, the
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
5
plaintiff was not entitled for the decree of declaration to the
effect that after the death of defendant, he was entitled to
.
succeed to the suit land/property. The appeal against the
same was also dismissed by the learned first appellate court
vide judgment and decree dated 8.10.2007 constraining the
plaintiff to file the instant appeal.
7 On 21.5.2008, the appeal was admitted on
following substantial questions of law:
1. Whether the findings of the learned first appellate
court and the learned trial court are a result of
complete misreading of pleadings, evidence and the
law as applicable to the facts of the case and
particularly document, Exhibit PW1/C, PW1/H, PW1/J
and PW1/K and as such palpably erroneous and
illegal and if so to what effect?
2. Whether the property given to the defendant in lieu
of maintenance in the proceedings under Section 125
Cr.P.C. with the condition that she would be limited
owner till her life time could be considered as her
absolute property or the same is covered by sub
section (2) of Section 14 of the Hindu Succession Act,
1956?
3. Whether the findings of the Courts below to the
effect that the suit property given to the defendant in
the proceedings under Section 125 Cr.P.C. for her life
time is covered by Section 14(1) of the Hindu
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
6
Succession Act, 1956 are sustainable in the face of
oral and documentary evidence on the case file?
8 I have heard the learned counsel for the appellant
.
and have also gone through the records of the case carefully.
SUBSTANTIAL QUESTIONS OF LAW NO. 1 to 3:
9 Since all these substantial questions of law are
intrinsically interlinked and interconnected, therefore, they
are taken up together for consideration and are being
answered by common reasoning.
10 The moot question that arises for consideration is
that as to whether the defendant had only a life interest in
the suit property or the same had blossomed into a complete
ownership in terms of the provisions of Act.
11 Section 14 of the Act reads thus:
"14. Property of a female Hindu to be her absolute
property.--
(1) Any property possessed by a female Hindu,
whether acquired before or after the commencement
of this Act, shall be held by her as full owner thereof
and not as a limited owner. Explanation.--In this
subsection, "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,
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
7
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 subsection (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."
12
Though there is plethora of law on the subject,
however, at this stage, I need only refer to a recent judgment
of the Hon'ble Supreme Court in Jupudy Pardha Sarathy
Vs. Pentapati Rama Krishna and others (2016) 2 SCC 56,
wherein after discussing the entire law on the subject it has
been held that property given to Hindu woman in lieu of her
preexisting right of maintenance, even if by Will creating
only life interest, the same would get transformed into an
absolute right by operation of Section 14(1). This is because
under the Hindu law, the husband has got a personal
obligation to maintain his wife and if he is possessed
properties, then his wife is entitled to a right to be
maintained out of such properties. This claim of the Hindu
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
8
woman is not a mere formality which is to be exercised as a
matter of concession, grace or gratis but is a valuable,
.
spiritual and moral right. It is apt to reproduce the relevant
observations, which read thus:
"12. Mr. K.V. Viswanathan, learned senior advocate
appearing for the appellant, confined his argument to
the question of law as to whether the High Court
erred in law in holding that Section14(1) of the Act
will be attracted and the widow Veeraghavamma
have acquired absolute interest in the properties.
Learned counsel made the following submissions:
12.1 Section 14(1) cannot be interpreted to mean
that each and every Will granting a limited/life
interest in a property to a widow is
deemed/assumed to be in lieu of her maintenance. If
the testator in his Will specifically provides that he is
granting only life interest in the property to his
widow, his right to limit his widows right in the
property is recognized by Section 14(2) of the Hindu
Succession Act, 1956. Further, the testators right to
dispose off his property by will or other testamentary
disposition is recognized by Section 30 of the Hindu
Succession Act, 1956. Therefore, Section 14(1) of the
Hindu Succession Act, 1956 cannot be interpreted in
a manner that renders Section 14(2) and Section 30
of the same Act otiose.
12.2 In Mst. Karmi vs. Amru & Ors. (1972)4 SCC 86,
a 3Judge Bench of this Court held to the effect that
a widow who succeeded to the property of her
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
9
deceased husband on the strength of his will cannot
claim any rights in the property other than those
conferred by the will.. The life estate given to her
.
under the Will cannot become an absolute estate
under the provisions of the Hindu Succession Act.
12.3 In V. Tulsamma vs. Sesha Reddy (1977) 3 SCC
99, this Court clarified the difference between sub
section (1) and (2) of Section 14, thereby restricting
the right of a testator to grant a limited life interest in
a property to his wife. Learned counsel referred para
62 of the judgment in Tulsamma case.
12.4 V. Tulsammas case involved a compromise
decree arising out of decree for maintenance
obtained by the widow against her husband's
brother in a case of intestate succession. It did not
deal with situations of testamentary succession.
Therefore, strictly on facts, it may not be applicable
to cases of testamentary succession. However, in
terms of law declared therein, a doubt may arise
whether Section 14(1) may apply to every instance of
a Will granting a limited/life interest in a property to
the widow on the ground that the widow has a pre
existing right of maintenance.
12.5 This doubt was resolved by the Supreme Court
in Sadhu Singh vs. Gurdwara Sahib Narike, (2006) 8
SCC 75, where it was held at paras 13 and 14 that
the right under section 30 of the Hindu Succession
Act, 1956 cannot be rendered otiose by a wide
interpretation of Section 14(1) and that these two
provisions have to be balanced.
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
10
12.6 The above view has been subsequently
affirmed by this Court. In Sharad Subramanayan vs.
Soumi Mazumdar & Ors. (2006) 8 SCC 91 (at para
.
20), this Court upheld the contention of the learned
counsel for the respondents therein 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.
12.7 Learned counsel referred para 14 in the case of
Shivdev Kaur vs. R.S. Grewal.
12.8 The position of law as recorded in Sadhu
Singhs case and followed subsequently, therefore,
appears to be that the question as to whether Section
14(1) applies to a Will granting life interest to a
widow hinges on the finding by the Court that the
grant was in lieu of maintenance. This leads to the
second arguments.
13. Mr. Viswanathan, learned senior counsel.
submitted the fact that the life interest in property
granted to the widow by way of a Will was actually
in lieu of her maintenance needs to be specifically
pleaded, proved and decided by the Court based on
examination of evidence and material on record.
Further, referring paragraph nos. 17, 22 and 24 of
the decision in G. Rama vs. TG Seshagiri Rao, (2008)
12 SCC 392, learned counsel submitted that issues
are required to be framed and evidence has to be led
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
11
to specifically show that the Will granted interest in
property in lieu of maintenance.
14. It is well settled that under the Hindu Law, the
.
husband has got a personal obligation to maintain
his wife and if he is possessed of properties then his
wife is entitled to a right to be maintained out of such
properties. It is equally well settled that the claim of
Hindu widow to be maintained is not a mere
formality which is to be exercised as a matter of
concession, grace or gratis but is a valuable, spiritual
and moral right. From the judicial pronouncement,
the right of a widow to be maintained, although does
not create a charge on the property of her husband
but certainly the widow can enforce her right by
moving the Court and for passing a decree for
maintenance by creating a charge.
15. The Hindu Married Women's Right to Separate,
Maintenance and Residence Act, 1946 was enacted
giving statutory recognition of such right and,
therefore, there can be no doubt that the right to
maintenance is a preexisting right.
16. In V. Tulsamma and others vs. Sesha Reddy,
AIR 1977 SC 1944, three Judges Bench of this Court
has elaborately considered the right of a Hindu
woman to maintenance which is a preexisting right.
My Lord Justice Fazal Ali writing the judgment firstly
observed: (SCC pp. 11314, para 20)
"20. Thus on a careful consideration and
detailed analysis of the authorities
mentioned above and the Shastric Hindu law
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
12
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 widows right to maintenance
is not a right, to property but it is
undoubtedly a preexisting 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 widows 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
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
13
existed in the Hindu law long before the
passing of the Act of 1937 or the Act of 1946,
and is, therefore, a preexisting 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 coowner 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
r 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.
17. Interpreting the provisions of Section 14 of the
Hindu Succession Act, their Lordships observed: (V.
Tulasamma case, SCC pp. 12021, para 30)
"30. In the light of the above decisions of this
Court the following principles appear to be
clear:
(1) that the provisions of Section 14 of the
1956 Act must be liberally construed in order
to advance the object of the Act which is to
enlarge the limited interest possessed by a
Hindu widow which was in consonance with
the changing temper of the times;
(2) it is manifestly clear that subsection (2) of
Section 14 does not refer to any transfer
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
14
which merely recognises a preexisting right
without creating or conferring a new title on
the widow. This was clearly held by this
.
Court in Badri Pershad case.
(3) that the Act of 1956 has made
revolutionary and farreaching changes in
the Hindu society and every attempt should
be made to carry out the spirit of the Act
which has undoubtedly supplied a long felt
need and tried to do away with the invidious
distinction between a Hindu male and female
in matters of intestate succession;
r (4) that subsection (2) of Section 14 is merely
a proviso to sub section (1) of Section 14 and
has to be interpreted as a proviso and not in
a manner so as to destroy the effect of the
main provision.
18. Lastly, His Lordship after elaborate
consideration of the law and different authorities
came to the following conclusions: (V. Tulsamma
case, SCC pp. 13536, para 61)
"61.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:
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
15
'(1) The Hindu females 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 preexisting
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
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
16
economic ends sought to be achieved by this
long needed legislation.
(3) Subsection (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) Subsection (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 preexisting right, such as a
claim to maintenance or partition or share to
which the female is entitled, the subsection
has absolutely no application and the
females 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
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
17
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 subsection (2)
inapplicable to these categories which have
been expressly excepted from the operation
of subsection (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
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
18
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.
19. Mr. Vishwanathan put heavy reliance on the
decision of this Court in the case of Mst. Karmi vs.
Amru (1972) 4 SCC 86. In our considered opinion,
the ratio decided in that case will not apply in the
facts of the present case. In Mst. Karmi case (Supra),
one Jaimal, who was the owner of the property, had
executed a Will directing that on his death, his entire
estate would devolve upon his widow Nihali during
her life and thereafter, the same would devolve upon
his collaterals on the death of Jaimal. The properties
were mutated in the name of Nihali who eventually
died in 1960. On her death, the collaterals claimed
the properties on the basis of Will, but the appellant
claimed the properties as their sole legatee from
Nihali under her Will of 1958. On these facts, it was
held that Nihali having succeeded to the properties of
Jaimal on the strength of Will cannot claim any right
in those properties over and above that was given to
her under the Will. The Court observed that the life
estate given to her under the Will cannot become an
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
19
absolute estate under the provisions of Hindu
Succession Act, 1956.
20. The facts in Karmis case and that of the present
.
case are fully distinguishable. In the instant case,
the Will was executed in 1920 in which Subba Rao
has mentioned that his first wife died, the second
wife got two sons and one daughter. Thereafter,
second wife also died. He, then, married to
Veeraraghavamma as a third wife, who is alive. The
executant of the Will have also mentioned the
description of the properties owned by him. He, very
specifically mentioned in the Will that his third wife
Veeraraghavamma shall enjoy for life one tiled house
situated in the compound wall. For that enjoyment, it
was also mentioned in the Will that the widow
Veeraraghavamma shall also be entitled to fetch
water from the well situated in the backyard of a
different house. In other words, the executant of the
Will made arrangements for his third wife to
maintain her enjoyment in the suit schedule property
till her life. The intention of the executant is therefore
clear that he gave the suit schedule property to his
third wife Veeraraghavamma in order to hold and
enjoy the suit property for her maintenance during
her lifetime. It is not a case like Karmi case that by
executing a Will, the executant directed that his
entire estate will devolve upon his widow
Veeraraghavamma.
21. A three Judges Bench of this Court in the case of
R.B. S.S. Munnalal and Others vs. S.S. Rajkumar &
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
20
Others, AIR 1962 SC 1493, while interpreting the
provisions of Section 14(1) of the Act observed: (AIR
pp. 14991500, para 16)
.
"16. By Section 14(1) the legislature sought
to convert the interest of a Hindu female
which under the Sastric 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
r 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 Sastric Hindu law may be
into absolute estate. Pratapmull case
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
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
21
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 Sastric Hindu law, the share given
to a Hindu widow on partition between her
sons or her grandsons was in lieu other right
to maintenance. She was not entitled to claim
partition. But the Legislature by enacting the
Hindu Womens' Right 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
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
22
Council in PratapmuIl case. Section 4 of the
Act gives an overriding effect to the
provisions of the Act.
.
22. Reference may also be made to a three Judges
Bench decision of this Court in the case of Nirmal
Chand vs. 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)
r "6. If Subhrai Bai was entitled to a share in
her husband's properties then the suit
properties must be held to have been allotted
to her in accordance with law. As the law
then stood she had only a life interest in the
properties taken by her. Therefore the recital
in the deed in question that she would have
only a life interest in the properties allotted to
her share is merely recording the true legal
position. Hence it is not possible to conclude
that the properties in question were given to
her subject to the condition of her enjoying it
for a life time. Therefore the trial court as
well as the first appellate court were right in
holding that the facts of the case do not fall
within Section 14(2) of the Hindu Succession
Act, 1956. Consequently Subhrai Bai must
be held to have had an absolute right in the
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP
23
suit properties, in view of Section 14(1) of the
Hindu Succession Act.
23. In the case of Thota Sesharathamma vs. Thota
.
Manikyamma, (1991) 4 SCC 312, life estate was
granted to a Hindu women by a Will as a limited
owner and the grant was in recognition of pre
existing right. Following the ratio decided in
Tulasammas case, their Lordships held that the
decision in Mst. Karmi cannot be considered as an
authority on the ambit of Section 14(1) and (2) of the
Act. The Court held: (Thota Sesharathamma, SCC p.
321, paras 910)
r "9. It was clearly held in the above case that
Section 14(2) of the Act is in the nature of a
proviso or an exception to Section 14(1) and
comes into operation only if acquisition in
any of the methods indicated therein is made
for the first time without there being any pre
existing right in the female Hindu to the
property. The Bench consisted of Hon. J.C.
Shah, V. Ramaswamy and A.N. Grover, JJ.
10. The case of Mst Karmi v. Amru on which a reliance has now been placed by learned counsel for the appellant and petitioners was also decided by a bench of three Judges Hon. J.C. Shah, K.S. Hegde and A.N. Grover, JJ. It may be noted that two Honble Judges, namely, J.C. Shah and A.N. Grover were common to both the cases. In Mst Karmi v. Amru, one Jaimal died in 1938 leaving his ::: Downloaded on - 31/05/2019 21:57:15 :::HCHP 24 wife Nihali. His son Ditta predeceased him.
Appellant in the above case was the daughter of Ditta and the respondents were .
collaterals of Jaimal. Jaimal first executed a will dated December 18, 1935 and by a subsequent will dated November 13, 1937 revoked the first will. By the second will a life estate was given to Nihali and thereafter the property was made to devolve on Bhagtu and Amru collaterals. On the death of Jaimal in 1938, properties were mutated in the name of Nihali. Nihali died in 1960/61. The appellant Mst Karmi claimed right on the basis of a will dated April 25, 1958 executed by Nihali in her favour. It was held that the life estate given to a widow under the will of her husband cannot become an absolute estate under the provisions of the Hindu Succession Act. Thereafter, the appellant cannot claim title to the properties on the basis of the will executed by the widow Nihali in her favour. It is a short judgment without adverting to any provisions of Section 14(1) or 14(2) of the Act. The judgment neither makes any mention of any argument raised in this regard nor there is any mention of the earlier decision in Badri Pershad v. Smt Kanso Devi. The decision in Mst Karmi cannot be considered as an ::: Downloaded on - 31/05/2019 21:57:15 :::HCHP 25 authority on the ambit and scope of Section 14(1) and (2) of the Act.
24. Reference may also be made to the decision of .
three Judges Bench of this Court in the case of Shakuntala Devi vs. Kamla and Others, (2005) 5 SCC 390, where a Hindu wife was bequeathed life interest for maintenance by Will with the condition that she would not have power to alienate the same in any manner. As per the Will, after death of the wife, the property was to revert back to his daughter as an absolute owner. On this fact their Lordships following the ratio decided in Tulasammas case (supra) held that by virtue of Section 14(1) a limited right given to the wife under the Will got enlarged to an absolute right in the suit property.
25. Mr. K.Ramamurty, learned senior counsel appearing for the respondent, also relied upon the decision in the case of Santosh and Others vs. Saraswathibai and Another, (2008) 1 SCC 465, Subhan Rao and Others vs. Parvathi Bai and Others, (2010) 10 SCC 235 and Sri Ramakrishna Mutt vs. M. Maheswaran and Others, (2011) 1 SCC 68.
26. In Santoshs case,(2008) 1 SCC 465 this Court followed the decision given in Nazar Singhs case, (1996) 1 SCC 35, and held that the preexisting right of wife was crystallized and her limited interest became an absolute interest in the property possessed by her in lieu of maintenance.
27. A similar question arose for consideration before this Court in Subhan Rao case, where a portion of ::: Downloaded on - 31/05/2019 21:57:15 :::HCHP 26 suit property was given to the plaintiffwife for her maintenance subject to restriction that she will not alienate the land which was given to her .
maintenance. The question arose as to whether by virtue of Section 14(1) of the Act she became the owner of the suit property. Considering all the earlier decisions of this Court, their Lordships held that by virtue of Section 14(1) of the Act, the preexisting right in lieu of her right to maintenance transformed into absolute estate.
28. In the case of Nazar Singh and Others vs. Jagjit Kaur and Others, (1996) 1 SCC 35, this Court following the decision in Tulasammas case held as under: (Nazar Singh case, SCC pp. 3839, para 9) "9. Section 14 and the respective scope and ambit of subsections (1) and (2) has been the subjectmatter of a number of decisions of this Court, the most important of which is the decision in V. Tulasamma v. Sesha Reddy. The principles enunciated in this decision have been reiterated in a number of decisions later but have never been departed from. According to this decision, subsection (2) is confined to cases where property is acquired by a female Hindu for the first time as a grant without any preexisting right under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. It has also been held that where the property is ::: Downloaded on - 31/05/2019 21:57:15 :::HCHP 27 acquired by a Hindu female in lieu of right of maintenance inter alia, it is in virtue of a pre existing right and such an acquisition would .
not be within the scope and ambit of sub section (2) even if the instrument, decree, order or award allotting the property to her prescribes a restricted estate in the property. Applying this principle, it must be held that the suit lands, which were given to Harmel Kaur by Gurdial Singh in lieu of her maintenance, were held by Harmel Kaur as full owner thereof and not as a limited owner notwithstanding the several restrictive covenants accompanying the grant. [Also see the recent decision of this Court in Mangat Mal v. Punni Devi where a right to residence in a house property was held to attract subsection (1) of Section 14 notwithstanding the fact that the grant expressly conferred only a limited estate upon her.] According to subsection (1), where any property is given to a female Hindu in lieu of her maintenance before the commencement of the Hindu Succession Act, such property becomes the absolute property of such female Hindu on the commencement of the Act provided the said property was possessed by her. Where, however, the property is given to a female Hindu towards her maintenance after the commencement of ::: Downloaded on - 31/05/2019 21:57:15 :::HCHP 28 the Act, she becomes the absolute owner thereof the moment she is placed in possession of the said property (unless, of .
course, she is already in possession) notwithstanding the limitations and restrictions contained in the instrument, grant or award whereunder the property is given to her. This proposition follows from the words in subsection (1), which insofar as is relevant read: Any property possessed by a female Hindu after the commencement of this Act shall be held by her as full owner and r not as a limited owner. In other words, though the instrument, grant, award or deed creates a limited estate or a restricted estate, as the case may be, it stands transformed into an absolute estate provided such property is given to a female Hindu in lieu of maintenance and is placed in her possession. So far as the expression possessed is concerned, it too has been the subjectmatter of interpretation by several decisions of this Court to which it is not necessary to refer for the purpose of this case."
(emphasis in original)
29. In Sadhu Singhs case, (2006) 8 SCC 75, the facts of the case were quite different to that of the present case. In Sadhu Singhs case, this Court proceeded on the basis that the widow had no preexisting right in ::: Downloaded on - 31/05/2019 21:57:15 :::HCHP 29 the property, and therefore, the life estate given to her in the Will cannot get enlarged into absolute estate under Section 14(1) of the Act.
.
30. Mr. Vishwanathan, learned senior counsel for the appellants last contention was that in the absence of any pleading and proof from the side of the appellant to substantiate the plea that Veeraraghavamma was occupying the property in lieu of maintenance, Section 14 will not be automatically attracted. We do not find any substance in the submission made by the learned counsel. Indisputably, Exhibit A2 is a document which very categorically provided that the property in question was given to Veeraraghavamma to enjoy the same till her life. Neither the genuineness of the said Exhibit A2 was disputed nor it was disputed that Veeraraghavamma was enjoying the property by way of maintenance. In our considered opinion, unless the factum of bequeathing the property in favour of the wife and her continuous possession are disputed, the question of pleading and proof does not arise. In other words, no one disputed the arrangement made in the Will and Veeraraghavamma continued to enjoy the said property in lieu of maintenance. Hence, the ratio decided in G. Ramas case (supra) does not apply.
31. Further, indisputably, Mr. P. Venkata Subba Rao, the original owner of the property, realized the fact that his wife Veeraraghavamma was issueless and she has a preexisting right to be maintained out ::: Downloaded on - 31/05/2019 21:57:15 :::HCHP 30 of his property. He further realized that physically he was weak and may not survive for long period. He therefore, decided to give his properties to his family .
members. For the maintenance of his third wife Veeraraghavamma, he gave the tiled house with site and compound wall with the stipulation that she shall enjoy the property for life in lieu of maintenance. She will also be entitled to fetch water from the well and use other facilities. Admittedly, no one disputed the arrangements made in the Will and Veeraraghavamma continued to enjoy the said property. In view of the admitted position, we have no doubt to hold that by virtue of Section 14(1) of the Act, her limited right became absolute right to the suit property.
32. In the impugned judgment, the High Court has elaborately discussed the facts of the case and the law applicable thereto and came to the conclusion that the trial court committed serious error of law in holding that by virtue of Section 14(2) of the Act, her limited right has not become absolute.
33. Though no specific word has been mentioned in Exhibit A2 that in lieu of maintenance life interest has been created in favour of Veeraraghavamma, in our opinion in whatever form a limited interest is created in her favour who was having a preexisting right of maintenance, the same has become an absolute right by the operation of Section 14(1) of the Hindu Succession Act.
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP 3134. After giving our anxious consideration to the matter and the judicial pronouncements of this Court in a series of decisions, we hold that the impugned .
judgment of the High Court is perfectly in accordance with law and needs no interference by this Court." 13 In addition to the aforesaid judgment I may now refer to a Hon'ble three Judges Bench decision of the Hon'ble Supreme Court in C. Masilamani Mudaliar and others Vs. Idol of Shri Swaminathaswami Swaminathaswami Trirukoil and others (1996) 8 SCC 525, wherein it was held that the Hindu Marriage Act, Hindu Adoption and Maintenance Act and Hindu Succession Act etc. have been brought on statute removing the impediments which stood in the way under the Sastric law. It was further held that explanation I to Section 14(1) gives wide amplitude to the acquisition of property in the widest terms. It is merely illustrative and not exhaustive. The only condition precedent is whether Hindu female had a preexisting right under the personal law or any other law to hold the property or the right to property. Any instrument, document, device etc. under which Hindu female came to possess the property--
moveable or immoveable in recognition of her preexisting right, though such instrument, document or device is worded ::: Downloaded on - 31/05/2019 21:57:15 :::HCHP 32 with a restrictive estate, which received the colour of pre existing restrictive estate possession by a Hindu female, the .
operation of sub section (1) of Section 14 read with Explanation I, remove the fetters and the limited right blossoms into an absolute right. It is apt to reproduce the relevant observations, which read thus: "26. It is true that Section 30 of the Act and the relevant provisions of the Act relating to the execution of the wills need to be given full effect and the right to disposition of a Hindu male derives full measure thereunder. But the right to equality removing handicaps and discrimination against a Hindu female by reason of operation of existing law should be in conformity with the right to equality enshrined in the Constitution and the personal law also needs to be in conformity with the Constitutional goal. Harmonious interpretation, therefore, is required to be adopted in giving effect to the relevant provisions consistent with the constitutional animation to remove genderbased discrimination in matters of marriage, succession etc. Cognizant to these constitutional goals, Hindu Marriage Act, Hindu Adoption and Maintenance Act, Hindu Succession Act etc. have been brought on statute removing the impediments which stood in the way under the Sastric law. Explanation I to Section 14 (1) gives wide amplitude to the acquisition of property in the widest terms. It is merely illustrative and not ::: Downloaded on - 31/05/2019 21:57:15 :::HCHP 33 exhaustive. The only condition precedent is whether Hindu female has a preexisting right under the personal law or any other law to hold the property or .
the right to property. Any instrument, document, device etc. under which Hindu female came to possess the property movable or immovable in recognition of her preexisting right, though such instrument, document or device is worded with a restrictive estate, which received the colour of pre existing restrictive estate possession by a Hindu female. the operation of subsection (1) of Section 14 read with Explanation I, remove the fetters and the limited right blossoms into an absolute right.
27 As held by this Court, if the acquisition of the property attracts subsection (1) of Section 14,sub section (2) does not come into play. If the acquisition is for the first times, without any vestige of pre existing right under the instrument, document or device etc. then subsection (2) of Section 14 gets attracted. Subsection (2) being in the nature of an exception, it does not engulf and wipe out the operation of subsection (1). Subsection (2) of Section 14 independently operates in its own sphere. The right to disposition of property by a Hindu under Section 30 is required to be understood in this perspective and if any attempt is made to put restriction upon the property possessed by a Hindu female under an instrument, document or device, though executed after the Act had come into force, it must be interpreted in the light of the facts and ::: Downloaded on - 31/05/2019 21:57:15 :::HCHP 34 circumstances in each case and to construe whether Hindu female acquired or possessed the property in recognition of her preexisting right or she gets the .
rights for the first time under the instrument without any vestige of pre existing right. If the answer is in the positive, sub section (1) of Section 14 gets attracted. Thus construed, both subsections (1) and (2) of Section 14 will be given their full play without rendering either as otios or aids as means of avoidance."
14 Thus, what can be considered to be well settled is that the property held by a Hindu female in lieu of pre existing right of maintenance, after coming into force the Act, would blossom into complete ownership and therefore, she can deal with the same in any manner, she likes, in accordance with law. No hurdles or fetters can be placed on such ownership. Substantial questions of law No. 2 and 3 are answered accordingly.
15 As regards substantial question of law No.1, I really do not find there being any misreading of pleadings, evidence more particularly, when the facts in question are not in dispute and pure question of law arises for consideration in this appeal. Substantial question of law No.1 is answered accordingly.
::: Downloaded on - 31/05/2019 21:57:15 :::HCHP 3516 In view of aforesaid discussion, I find no merit in .
this appeal and the same is accordingly dismissed leaving the parties to bear their own costs. Pending application(s), if any, also stands dismissed.
28.5.2019 (Tarlok Singh Chauhan) Judge (pankaj) ::: Downloaded on - 31/05/2019 21:57:15 :::HCHP