Madras High Court
Doraibabu And Ors. vs K. Masilamani And Ors. on 29 April, 1991
Equivalent citations: (1991)2MLJ359
JUDGMENT Mishra, J.
1. These appeals against the decrees in C.S. No. 313 of 1976 and C.S. No. 22 of 1977 arise out of a common, judgment of a learned single Judge of this Court. They have been heard together. Common arguments have been advanced both on behalf of the appellants and the respondents. Since most of the questions involved in the two suits and appeals are common, they are disposed of together.
2. C.S. No. 313 of 1976 was filed for a declaration of the plaintiffs title under a settlement deed dated 12.6.1967 and recovery of possession against 13 defendants of defendants 5 to 13 are tenants. C.S. No. 222 of 1977 had been filed by the first defendant in C.S. No. 313 of 1976 against the 9th defendant in C.S. No. 313 of 1976. Originally C.S. No. 222 of 1977 was filed on the file of the City Civil Court, Madras as O.S. No. 9874 of 1975 for recovery of arrears of rent.
3. Mylai Ammal alias Alamelu Ammal, the younger sister of the father of the plaintiff in C.S. No. 313of 1976 (first respondent in O.S.A. No. 29 of 1982) was the widow of one Thirumalai Chetty who died on 28.9.1944. Thirumalai Chetty and his two brothers Govindarajulu Chetty and Jagannadhan Chetty constituted a joint family and possessed joint family properties. His widow, Mylai Ammal became entitled to her husband's share in the joint family properties along with her grandson Doraibabu, the first defendant under the Hindu Women's Right to Property Act, 1937 to the extent of one-sixth share in the joint family properties. The first defendant in C.S. No. 313 of 1976, one of the appellants in O.S.A. No. 29 of 1982 and his mother Kamakshi Ammal filed C.S. No. 134 of 1945 on the file of the High Court, Madras claiming their respective shares. In the said suit, Mylai Ammal figured as fifth defendant. A preliminary decree was passed on 13.3.1946 awarding one-sixth share to Mylai Ammal. In the final decree dated 18.3.1947, Mylai Ammal was allotted 9 items of properties with limited estate for her one-sixth share in addition to cash of Rs. 10,374-6-0. In the said suit, one Gopalakrishna Chetty was awarded a right of maintenance as illegitimate son, even though he had claimed a share in the properties. Gopalakrishna Chetty subsequently instituted C.S. No. 608 of 1949 on the file of this Court against Mylai Ammal and Kamakshi Ammal claiming that he was entitled to a separate interest in the properties belonging to the share of his father Thirumalai Chetty. A preliminary decree was passed on 4.4.1955 in the said suit granting a share to Gopalakrishna Chetty and modifying the share allotted to Mylai Ammal to 5/12 share with limited interest in the suit properties and also that after the death of Mylai Ammal, her share would devolve on Gopalakrishna Chetty and the first defendant in C.S. No. 313 of 1976 that is to say the grandson in the ratio of 1/4 : 3/4 respectively. The first defendant in C.S. No. 313 of 1976 that is to say that grandson and Kamakshi Ammal filed O.S.A. No. 92 of 1955 against the preliminary decree dated 4.4.1955. During the pendency of the said appeal, a compromise was arrived at on 24.5.1960 under which Mylai Ammal was allotted 7 houses that is to say the suit properties in C.S. No. 313 of 1976 and a cash of Rs. 9,820. The compromise provided that the first defendant in the suit and Gopalakrishna Chetty should take the suit properties allotted to Mylai Ammal in the ratio of 3 : 1 after her death. The final decree was accordingly passed on 28.6.1960. On 12.6.1967 Mylai Ammal executed a settlement deed in favour of the plaintiff in C.S. No. 313 of 1976. Mylai Ammal died on 1.3.1973.
4. Alleging that the first defendant in the suit issued notices dated 10th March, 1973 to the tenants calling upon them to pay the rents to him and that excepting defendants 7 and 8 other tenants issued reply notices in March, 1973 stating that they had attorned to the plaintiff and that the first defendant might establish his right in a Court of law, it is the case of the plaintiff that under the influence of the notice issued by the first defendant, the tenant committed default in payment of rent at the instigation of defendants 1 to 4 compelling the plaintiff to file H.R.C. No. 2506 of 1973 on the file of the Rent Controller, Madras for eviction of the fifth defendant. The fifth defendant deposited some rent into the Court of the Rent Controller. But during the pendency of the proceedings before the Rent Controller, he claimed to purchase the plaint schedule item No. 4 from defendants 3 and 4 under a sale deed dated 19.1.1976. Plaintiff filed H.R.C. No. 1572 of 1973 against the seventh defendant, which was dismissed. He then filed H.R.C. No. 340 of 1975 against him. He also filed H.R.C. No. 1951 of 1973 against the eighth defendant, which was dismissed. Against it he has preferred H.R.A. No. 340 of 1975. He then filed H.R.C. No. 3205 of 1973 against the ninth defendant, which was also dismissed. He filed O.S. No. 7315 of 1973 on the file of the Court of Small Causes, Madras against the tenth defendant, which suit was decreed, but set aside on appeal in N.T.A. No. 32 of 1975 giving rise to C.R.P.SR. No. 2018 of 1976 on the file of this Court. In H.R.C. No. 2119 of 1973 as against one Jayalakshmi (not a party before us), the plaintiff obtained an order of eviction. But the eleventh defendant obstructed the delivery of property on the ground that he was a sub-tenant. The plaintiff then filed an application for removal of obstruction caused by the eleventh defendant which application was allowed. The eleventh defendant filed O.S. No. 6666 of 1976 for injunction to restrain the plaintiff from evicting him. The plaintiff filed H.R.C. No. 1614 of 1975 against 12th defendant for fixation of rent which was allowed. The 13th defendant fell in arrears of rent to the tune of Rs. 7,400. Thus according to the plaintiff, he is entitled to recover possession from the defendants 5 to 13 since they have rendered themselves liable to be evicted by their conduct.
5. In the written statement of the first defendant it is conceded that Mylai Ammal's claim to life estate over the suit properties was decreed in C.S. No. 134 of 1945 as well as C.S. No. 608 of 1949. It is however said that when the compromise decree dated 28.6.1960 was passed, the Hindu Succession Act, 1956 was in force. Mylai Ammal, who was alive for 17 years after the coming into force of the Hindu Succession Act never disputed the fact that she was entitled to a life estate only and never took any step to set aside the compromise decree on the ground of undue influence or misrepresentation or coercion or fraud. Thus it has to be presumed that Mylai Ammal voluntarily and consciously surrendered her absolute estate over the suit properties in favour of defendants 1 to 4 who are the grandsons. The only person entitled to assert absolute right under the Hindu Succession Act, 1956 was Mylai Ammal. She did not assert during her life time or at the time of executing the so called settlement deed in favour of the plaintiff that she had absolute right in the properties that devolved upon her as the widow of her deceased husband Thirumalai Chetty. The first defendant also questioned the validity of the deed of settlement as the document for transfer of any interest of Mylai Ammal in favour of the plaintiff. According to him, the settlement deed was never acted upon and in any case, it did not convey any title to the plaintiff to the detriment of the rights of the grandsons recognised in the compromise decree dated 28.6.1960. It is stated that on the date of the settlement deed. Mylai Ammal was 80 years old. She was illiterate. The plaintiff was with her and was helping her. He has thus obtained the settlement deed by fraud, undue influence and misrepresentation. After the death of Mylai Ammal on 1.3.1973, the division of the suit property was effected among the defendants 1 to 4. Accordingly, the plaint schedule items 1 to 4 went to the share of defendants 2 to 4 and the remaining five items went' to the share of the first defendant. The sale in favour of the fifth defendant in respect of the plaint schedule item No. 4 is thus a true and bona fide transaction supported by consideration.
6. The other written statement filed on behalf of the fifth defendant has supported the case of the first defendant and added that the fifth defendant had purchased the plaint schedule item No. 4 from the rightful owners.
7. Defendants 6, 9, 10, 12 and 13 filed separate written statements to the effect that they are tenants and entitled to remain in possession and that the plaintiff cannot recover possession from them though he could claim rents if his claim of title was upheld.
8. C.S. No. 222 of 1977 was a suit filed by the first defendant in C.S. No. 313 of 1976 alleging that he had become a co-owner of the plaint Schedule property as per Clause 3 of the compromise final decree in C.S. No. 608 of 1949 dated 8.6.1960 on 1.3.1973 on which date the life estate holder Mylai Ammal, who was his paternal grandmother died. The other co-owners of the property conveyed their interest to him under a registered release deed dated 9.10.1974 and thus he became the exclusive owner of the plaint schedule property. The defendant, who was inducted as a tenant by the deceased Mylai Ammal did not pay the arrears of rent in spite of the lawyer's notice between 10.3.1973 and 25.4.1975. The defendant therein has resisted the suit on the ground that on the death of Mylai Ammal on 1.3.1973, there was a dispute between the plaintiff and K. Masilamani (plaintiff in C.S. No. 313 of 1976). He, for the said reason, filed H.R.C. No. 3205 of 1973 impleading both of them for permission to deposit the rent into the Court. He has alleged that he paid all the rents to the plaintiff in C.S. NO. 313 of 1976 till February, 1976 since he filed a petition against him and some other tenants as the settlee from Mylai Ammal.
8-A. It is thus the common case of the parties that Doraibabu, the first defendant in C.S. No. 313 of 1976 is the grandson of Mylai Ammal. Mylai Ammal was granted a life estate over 9 items of properties under the final decree dated 183.1947 in C.S. No. 134 of 1945. Ex. P-3, the certified copy of the final decree in C.S. No. 134 of 1945 shows that the fifth defendant Mylai Ammal got to her share immovable properties detailed in Schedule B as life interest. Ex. P-3 also shows that Gopalakrishna Chetty was only granted maintenance. He filed C.S. No. 608of1949onthefileofthisCourtagainst the first defendant and his mother Kamakshi Ammal and Mylai Ammal claiming partition and separate possession in the properties allotted to them under Ex. P-13, Ex. P-5, the certified copy of the preliminary decree dated 4.4.1955 in C.S. No. 608 of 1949 shows that Mylai Ammal was allotted 5/12 share and that the 5/12th share which may be allotted to the 3rd defendant (Mylai Ammal) as per Clause 2 supra shall after her death, devolve on the plaintiff and the first defendant that is the plaintiff taking 1/4th of the said properties and the first defendant taking 3/4th of the said properties.
The final decree in C.S. No. 608 of 1949 was passed about four years after the Hindu Succession Act came into force that is to say on 28.6.1960 in terms of a compromise. In this decree (Ex. P-6), the pre-existing right of Mylai Ammal and the predecessor of defendants 2 to 4 herein is traced and in Clause 2, it is stated that Mylai Ammal, the third defendant in C.S. No. 608 of 1949 was allotted the properties mentioned in Schedule B. There is no mention however about the nature of the interest of Mylai Ammal in the properties allotted to her except that in a separate clause therein it is said;
that the division of the properties allotted to the share of defendant-3 herein under the decree as aforesaid shall be made after the death of defendant-3 herein, in the proportion of 1/4th share to the plaintiff herein, (predecessor of defendants 2 to 4 in this suit) and 3/4th share to the first defendant herein (1st defendant in this suit) as provided in the preliminary decree dated 4.4.1955.
9. It is not in dispute that Thirumalai Chetty and his two brothers Jagannathan Chetty and Govindarajulu Chetty constituted a joint family and possessed joint family properties. It is also not in dispute that Thirumalai Chetty died on 28.9.1944 leaving behind his widow Mylai Ammal and his grandson (Doraibabu) whose father had pre-deceased him. Besides them, there was one Gopalakrishna Chetty, the illegitimate son of Thirumalai Chetty. Before the death of Thirumalai Chetty, the textual Hindu Law had undergone a statutory intervention in the shape of Hindu Women's Right to Property Act, 1937 under which a widow had become entitled to a share to the extent of the share of her husband in a joint family property to hold for life subject to the right of reversioners. There is some attempt before us to suggest that in C.S. No. 134 of 1945 or in C.S. No. 608 of 1949, it was the life interest and not the right under the Hindu Women's Right to Property Act of a widow for life subject to the right of reversioners, that was pleaded and accepted by the Court to which we shall advert later, but the limited right that a Hindu widow got under the Hindu Women's Right to Property Act, 1937 was enlarged under the Hindu Succession Act, 1956, a fact that is not disputed before us. But it is stated that the incidence recognised under Section 14(1) of the Hindu Succession Act shall not apply to the properties in question for the reason that the Court's final decree in C.S. No. 608 of 1949 (Ex. P-6) was limited to Mylai Ammal's interest to a life estate only.
10. Learned trial Judge however has said in the judgment;
Neither the promoters of the compromise terms, nor the parties to the compromise decree focused their attention to the enlarged absolute estate of Mylai Ammal at the time of drafting the compromise terms and the final decree. If they had done so, they would have certainly made a reference to the same, both in the memorandum of compromise and in the final decree under Ex. P-6...We have already found that there is absolutely nothing to indicate in the memorandum of compromise that Mylai Ammal was even conscious of the enlargement of her life estate into an absolute estate, or whether she was apprised of her enlarged interest either by her counsel or by the promoters of the compromise or whether she had abandoned her absolute interest in favour of her grandsons...There is no material to show that Mylai Ammal was conscious of her enlarged absolute interest at the time of drafting the memorandum of compromise or that she had any knowledge about the enlargement of her right or that she was informed of her enlarged interest at the crucial point of time or that she had actually waived her very valuable interest in the immovable properties.
Even assuming for arguments sake that Mylai Ammal was granted only a life estate in the suit properties under Ex. P-6 final decree, it has to be seen whether the defendants 1 to 4 herein as the successors in interest of the plaintiff in C.S. No. 608 of 1949 are entitled to claim any interest in law after the death of Mylai Ammal on 1.3.1973...There is no indication in the final decree under Ex. P-6 that the absolute interest of Mylai Ammal shall devolve on the plaintiff in C.S. No. 608of 1949In this case also what the compromise intended was to recognise and declare Mylai AmmaPs pre-existing right in her husband's property, her interest being a women's estate as known to Hindu Law Mylai Ammal was the full owner of the property albeit her powers of disposal are limited and that, therefore there was no scope for any vested remainder existing so long as Mylai Ammal was in possession of her life estate. Therefore, the gift over of the remainder after the widow's estate being in the nature of spes succession can confer no title to the defendants 1 to 4 herein either under the preliminary decree or under the final decree...The final decree in C.S. No. 134 of 1945 did not create any new life interest in favour of Mylai Ammal and it has only affirmed her pre-existing limited estate and crystalised her interest over nine items of properties. The same preexisting right has once again been reiterated in Ex. P-5, preliminary decree in C.S. No. 608 of 1949 and the same has been crystalised over seven items of properties. A question may be asked as to why the limited interest crystalised over nine items was reduced to seven items in the final decree in C.S. No. 608 of 1949. It was j elicited in the cross examination of P.W. 1 by the learned Counsel for the first defendant that before the compromise there was exchange of property between Mylai Ammal and the other parties, that Mylai Ammal exchanged door No. 551, T.H. Road, for door No. 7, Kalingaraya Mudali Street and door No. 51, Perambalu Chetty Street with the first defendant and Mylai Ammal gave her door Nos. 1 and 1-A to Gopalakrishna Chetty, the plaintiff in C.S. No. 608 of 1949. It was further elicited during cross-examination of P.W. 1 that Mylai Ammal gave to the above items in exchange towards the share of the plaintiff in C.S. No. 608 of 1949 before the compromise only at the request of the first defendant herein and the plaintiff in C.S. No. 608 of 1949, according to the preliminary decree in C.S. No. 608 of 1949. The above is the answer to the question...There is no document or decree, which says that Mylai Ammal gave her absolute interest under the terms of the compromise in order to favour her grandson, defendants 1 to 4. Thus, in any view of the matter, the plaintiff in C.S. No. 608 of 1949 or the defendants 1 to 4 herein cannot claim any interest in the suit properties under the final decree in C.S. No. 608 of 1949 It follows therefore that Mylai Ammal was entitled to an absolute interest in the suit properties, that Section 14(1) of the Hindu Succession Act will apply to the facts of this case and that the compromise decree dated 28.6.1960 will not in any way affect the absolute rights of late Mylai Ammal....
11. The origin of the dispute in this case is the interest that Mylai Ammal got in the joint estate of the family of her husband Thirumalai Chetty after his demise in the year 1944. Her husband had a divisible interest in a joint family property belonging to the co-parcenary consisting of Thirumalai Chetty himself and his two brothers. Since Doraibabu's father had admittedly died during the life time of Thirumalai Chetty, he had become a co - parcener along with his grandfather Thirumalai Chetty in the joint estate. After the death of his grandfather, he became entitled to seek partition. When the first suit was instituted that is to say C.S. No. 134 of 1945, he was a minor. His mother Kamakshi Ammal was alive, but she had no interest of her own in the joint estate as her husband Raghavalu Chetty had died in the year 1934 before the Hindu Women's Right to Property Act came into force. Mylai Ammal, Thirumalai Chetty's widow however was beneficiary of Hindu Women's Rights to Property Act, 1937. Since textual Hindu Law had not recognised any right of inheritance or succession Doraibabu's mother Kamakshi Ammal claimed no share and got no share in the joint estate of the family. But for Hindu Women's Right to Property Act, 1937, Mylai Ammal would not have joined her grandson in suing for partition in C.S. No. 184 of 1945. We are not concerned with the incidence of inheritance in the case of any absolute property in the hands of her husband Thirumalai Chetty. Had she not been a beneficiary under this Act, she would not have succeeded in preference to her grandson or any other male heir or along with him or them. She would have received maintenance and the male owners of the property could grant any immovable property to her in lieu of maintenance, but not otherwise. Under this Act however she became entitled to inheritance since her husband Thirumalai Chetty died intestate. Section 3 of this Act stated Devolution of Property: When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property his widow or if there is more than one widow, all his widows together shall subject to the provisions of Sub-section (3) be entitled in respect of which he dies intestate to the same share as a son:
Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son:
Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.
(2) When a Hindu governed by any school of Hindu Law other than they Dayabhaga School or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3), have in the property the same interest as he himself had.
(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Woman's estate, provided however that she shall have the same right of claiming partition to a male owner.
(4) The provisions of this section shall not apply to an estate which by a customary or diner rule of succession or by the terms of the grant applicable thereto descends to a.single heir or to any property to which the Indian Succession Act, 1925 applies.
Since under this provisions Mylai Ammal became a heir in her own fight to succeed to the share of her husband in the joint family estate, what followed as a consequence in the decree dated 133.1946 in C.S. No. 134 of 1945 was a recognition of her right as the heir of her husband, the estate in her being a Hindu Woman's estate. It is also important to notice that Gopalakrishna Chetty, who was recognised only as one entitled to maintenance in the judgment in C.S. No. 134 of 1945, preferred O.S. A. No. 26 of 1946 which appeal was dismissed. It was only thereafter he filed C.S. No. 608 of 1949. In the judgment in C.S. No. 134 of 1945 the preliminary decree and the final decree, Mylai Ammal and Doraibabu were allotted their respective shares and Mylai Ammal got the widow's estate to the extent of one-sixth share that is to say equal to that of her grandson Doraibabu. Gopalakrishna Chetty however got the element of the right of the illegitimate son to succeed to the estate of Thirumalai Chetty and between Mylai Ammal, Doraibabu and Gopalakrishna Chetty, consequent variations and adjustment of interests became necessary. The preliminary decree dated 4.4.1955 in C.S. No. 608 of 1959 thus achieved necessary adjustment in the shares between Mylai Ammal, Doraibabu and Gopalakrishna Chetty all the time maintaining in the eye of law that Mylai AmmaPs estate was a widow's estate. The final decree dated 28.6.1960 was the actual determination of the properties to be allotted to Mylai Ammal, Doraibabu and Gopalakrishna Chetty. How they took it and what rights they acquired in the shares allotted to them fully stood decided in the judgment of this Court in C.S. No. 608 of 1949 and the preliminary decree dated 4.4.1955. There was no occasion therefore of any adjudication or advancement of any claim under Section 14(1) of the Hindu Succession Act, which enlarged the interests of Mylai Ammal from the widow's estate to absolute interest because that had to follow as an incidence of law as a matter of course.
12. Section 14 of the Hindu Succession Act states, (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.
13. The question as to whether a female Hindu acquired interest under the Hindu Women's Rights to Property Act, 1937, under a Court partition came up before the Courts more than once. This Court had the occasion of taking notice of this provision in Subba Rao v. Krishna Prasadam , followed by a Bench decision of this Court in Rangaswami v. Chinnammal . since the facts of the later case are very close to the facts of the instant case, we propose to look into them and the inference drawn from them to apply the law on the subject.
14. One Kariakali Naicken constituted a joint Hindu family with his son Sinnamman Naicken and owned two items of properties. After the death of Sinnamman Naicken, who predeceased his father. Kariakali Naicker and Sinnamman Naicken's son Rangaswami Naicker constituted a joint Hindu family. Kariakali died in the year 1951 leaving behind his widow Angammal, three daughters and his grandson Rangaswami. Angammal, filed a suit O.S. No. 63 of 1952 in the District Munsif s Court, Coimbatore claiming that she was entitled to one-half share in the properties of the family the other half vesting in Rangaswami. The suit though contested at the beginning, terminated in a compromise. The substance of the arrangement was that Angammal was declared to be entitled to one-half share in the properties, but possession of that share was to be with the appellant so long as he paid rents stipulated and that, (1) The plaintiff, Angammal, be and hereby entitled to half share of all the properties of her husband;
(2) that the first defendant (appellant) herein, shall enjoy the plaint properties without prejudice to the rights of the plaintiff in the suit property; and (3) that the first defendant shall be entitled to the suit properties after the plaintiffs lifetime.
Both the parties to the compromise enjoyed their respective properties in accordance with the terms thereof. While so, the Hindu Succession Act, 1956 was passed by the Central Legislature and became effective on 17.6.1956. Angammal thereafter made a testamentary disposition of the properties so declared by her in favour of her daughters on 7.3.1957, Soon thereafter she died on 25.3.1957. The daughters thereafter filed a suit for partition and separate possession. Their claim failed in the trial court. But on appeal, a decree for partition was granted. In the Letters Patent Appeal, a Bench of this Court interpreted the compromise in the suit between Angammal and her grandson Rangaswami as a recognition and declaration of Angammal's pre-existing right in her husband's property, her interest as a women's estate as known to Hindu Law. The Court observed, A Hindu widow in possession of her husband's estate represents such estate in its entirety and that so long as she is in possession of that property, no other person has any right thereto. She will be the full owner of the property albeit her powers of disposal are limited. There is, therefore, no scope for any vested remainder existing so long as the female owner possesses her estate as defined by the law. The gift over of a remainder after a widow's estate being in the nature of spes successions can confer no title. In Vasantha Rao v. Venkata Kodanda Rao (1940) 1 M.L.J. 188 : A.I.R. 1940 Mad. 210. Venkataramana Rao and Newsam, JJ. held that it would not be possible to have a vested remainder after conferring a limited estate of the nature of a Hindu Women's estate. Applying that rule to the present case, Clause 9 of the compromise will be void, for repugnancy if the nature of the estate that it declared in favour of Angammal under Clause 1 is a Hindu Widow's estate.
Coming to Section 14(1) and Section 14(2) of the Hindu Succession Act, the Bench observed, A reading of the section will show that the intention of the Legislature is to enlarge the limited ownership of woman in the property whether acquired before or after the Act into an absolute one. Sub-section (2) makes it clear that the object of the section is only to remove the disability on women imposed by law and not to interfere with the contracts, grants, etc., by virtue of which a women's right is restricted. Section 14(1) is comprehensive in its ambit, the Explanation to that section shows that whatever be the mode of acquisition whether it be by inheritance or grant, the limited owner will thereafter have full ownership. But Sub-section (2) provides an exception to the operation of Section 14(1). It is based on the principle of sanctity of contracts and grants. Both Sub-sections (1) and (2) use the word 'acquired" which means "gain oneself for one's self," in the letter sub-section, the mode of acquisition is specified; in the former it is unlimited. An acquisition of property by virtue of provisions of any statute, like the Hindu Women's Rights to Property Act will prima facie be comprehended by Section 14(1).
Repelling the argument that a widow obtaining property under the Hindu Women's Rights to Property Act is neither a case of acquisition nor inheritance but one by virtue of a statutory right, her husband in theory being alive in her and that therefore Section 14 will not apply as the Explanation does not envisage such a case, the Court observed, The fallacy underlying assumption of the argument is, that Sub-section (1) of Section 14 is confined in its operation to the cases specified by the explanation. But the explanation is not exhaustive; it only includes certain cases which the legislature felt might not come within the main part of the section.
The right got by a Hindu widow under the former enactment though statutory is a right obtained under the law. The statute purported to give better rights to widows and to that extent it amended the Hindu law. Such a right cannot be one obtained under any of the categories mentioned in Sub-section (2) That provision is an exception and it should be strictly construed. It does not refer in terms to an acquisition of property under statute. But such an acquisition would be covered by Sub-section (1).
14. Coming to the facts Of the case in hand, there is no difficulty in holding that iri C.S. No. 134 of 1945 as wellas in C.S. No. 608 of 1949, thestatutory right of a Hindu widow Mylai Ammal was recognised by the Courts and accordingly she was found to be entitled to the widow's estate having stepped into the shoes of her husband Thirumalai Chetty except that in Rangaswami's case, (supra), the compromise had been arrived at before the enforcement of the Hindu Succession Act, 1956, whereas in the instant case, the compromise took place after the enforcement of the Hindu Succession Act, but in course of final decree, the judgment and the preliminary decree in C.S. No. 608 of 1949 in which the compromise was recorded, however, were passed and made before the enforcement of the Act.
15. The main argument on behalf of the appellants before us is that once the Hindu Succession Act had come into force and a new right had been created in favour of Mylai Ammal, the compromise which finally found its expression in the final decree was in the shape of a family settlement, a transaction entered into by the parties who were all members of a family bona fide to put an end to the dispute among themselves. This argument on behalf of defendants 1 to 4 in C.S. No. 313 of 1976 has been negatived by the trial Court. It is necessary however to understand the nature of the compromise. There is nothing consciously entered into the terms of the compromise from which it can be inferred that Mylai Ammal and other parties to C.S. No. 608 of 1949 agreed to life interest in the properties allotted to Mylai Ammal. The preliminary decree in the said suit dated 4.4.1955 states that the third defendant that is to say Mylai Ammal was entitled to 5/12th share in the suit properties, which after her death would devolve on the plaintiff and the first defendant that is to say her grandson and the illegitimate son Gopalakrishna Chetty of her husband Thirumalai Chetty. This is in consonance with the law which existed before the enforcement of the Hindu Succession Act. The widow's estate to which Mylai Ammal was entitled to inherit, gave to her an interest in the properties for life and since it was the ancestral property of her husband, after her demise, it had to revert to the reversioners, who were entitled to inherit as heirs and legal representatives of her husband, both her grandson, the first defendant in the said suit and the illegitimate son of her husband Thirumalai Chetty viz., Gopalakrishna Chetty. The final decree also contained a statement that the properties mentioned in Schedule B were allotted to the share of third defendant that is to say Mylai Ammal and that the division of the properties allotted to the share of defendant 3 herein under the decree as aforesaid shall be made after the death of defendant 3 herein, in the proportion of 1/4th share to the plaintiff herein and 3/4fh share to the first defendant herein as provided in the preliminary decree dated 4.4.1955.
It thus only carried into effect the preliminary decree and recognised the right of the first defendant that is to say the grandson and the plaintiff that is to say the illegitimate son to inherit as reversioners and if there was any settlement of the dispute that could arise between the illegitimate son, who was the plaintiff and the grandson, who was the first defendant with respect to the succession to the interests of the third defendant that is to say Mylai Ammal, that was between them and not with the third defendant Mylai Ammal. It is difficult for the said reason to read in the compromise any admission of the title of the illegitimate son or the grandson independent of their rights as reversioners in the share allotted to Mylai Ammal by virtue of the decree in C.S. No. 608 of 1949.
16. In Ram Charan v. Girja Nandini (1966) 1 S.C.J. 61 : A.I.R. 1966 S.C. 323, a question arose for consideration whether the validity of the transaction evidenced by a deed of settlement between the parties was binding or not. The property involved in the dispute in the said case belonged to one Kanhaiyalal, who died in 1922 without leaving a widow or any issue. This property along with some other property originally belonged to Kanhaiyalal's grandfather Chunilal, who according to some of the parties, had by a will executed in the year 1883, devised his property in favour of Kanhaiyalal and his brother Madho Prasad. Madho Prasad died during the life time of Kanhaiyalal, leaving a daughter Maheshwari Bibi. After Madho Prasad's death, Kanhaiyalal entered into possession of the property which had been bequeathed to Madho Prasad by Chunnilal. After Kanhaiyalal's death, Kadma Kaur, his mother entered into possession of the entire property which was in the possession of Kanhaiyalal till his death. Kadama Kaur died in October, 1937 and shortly thereafter the suit out of which the appeal arose was instituted by Ram Charan Das, the appellant. Kanhaiyalal and Madho Prasad had a sister by name Mst. Pyari Bibi. She had a son Gopinath who died in the year 1934 leaving a widow Girja Nandhini, the first defendant to the suit. The plaintiff was the sixth son of Diwan Madan Gopal who was one of the two sons of Brijlal and Brijlal was the only son of Deoki Nandan, the elder brother of Chunilal. In effect, the plaintiff in the suit from which the appeal had arisen was a collateral of Kanhaiyalal. However, it was not disputed that his brothers were the next reversioners entitled to succeed to Kanhaiyalal's property after the death of his mother Kadma Kaur. To the suit, he jointed Girja Nandhini Devi the widow of Gopinath as defendant No. 1. She was the contesting respondent before the Supreme Court. The relevant facts however which were taken notice of by the Supreme Court were that after Kadma Kaur entered into possession of the estate of Kanhaiyalal, she applied to the appropriate authority for taking over possession of management of the property which was in the possession of Kanhaiyalal at the time of his death whereupon the Court of Wards took over its management under Section 10 of the U.P. Court of Wards Act, 1912. This property consisting not only of property which Kanhaiyalal had obtained under the will of Chunilal but also of the property which had been bequeathed in that will to Madho Prasad and of which Kanhaiyalal had obtained possession during his life time. Maheshwari Bibi, the daughter of Madho Prasad laid a claim to the property which had been bequeathed by Chunilal on the ground that the two brothers who took these properties under Chunilal's will took them not as joint tenants but as tenants in common. The claim made by her in this respect was examined by the Court of Wards and upon Kadma Kaur agreeing, the Court of Wards and upon Kadma Kaur agreeing, the Court of Wards released half of the estate under its management, that is, the share in the property which is said to have been bequeathed to Madho Prasad. Three suits however came to be instituted during the life time of Kadma Kaur, the first being 30 of 1932. This was instituted by Gopinath, who claimed to be the next reversioner upon the ground that he being the sister's son of Kanhaiyalal had become an heir preferential to Ram Charan and his brothers because of the passing of the Hindu Law of Inheritance (Amendment) Act, 1929. To the suit, Maheshwari Bibi and Kadma Kaur and the Court of Wards were made defendants. He sought therein a declaration to the effect that the Court of Wards had no right to release half the property in favour of Maheshwari Bibi. The suit however was eventually withdrawn. The second suit being 53 of 1932 was instituted by Ram Charan Das himself, who claimed to be the nearest reversioner upon theground that the Act of 1929 did not affect his right to the property left by Kanhaiyalal. His brother Hanuman Prasad instituted the third suit being 54 of 1938 raising a similar claim. Both of them sought a declaration that Maheshwari Bibi and Gopinath had no right of any kind in respect of these properties because Chunilal could not by his will devise the property to her father Madho Prasad. These two suits were compromised. Under one of the compromises, the dispute with Maheshwari Bibi was settled. Decrees were drawn up in these suits embodying the terms of each of the compromises arrived at amongst the parties. The compromise of the dispute with Gopinath and Kadma Kaur, entered into in Suit No. 53 of 1932 on March 31,1933 was under challenge. According to Ram Charan Das, the compromise in question was neither a surrender nor a family arrangement and that in any case Kadma Kaur, was not entitled to make a family settlement and that what she did would not amount in law to a surrender. The Supreme Court observed, It seems to us abundantly clear that this document was in substance a family arrangement and, therefore, was binding on all the parties to it. Moreover it was acted upon by them. For, under certain terms thereof one of the parties, Gopinath, paid off certain liabilities to which the property which was allotted to his share was subjected.
Dealing with the law on the subject, the Supreme Court observed, Once it is held that the transaction being a family settlement is not an alienation, it cannot amount to the creation of an interest. For, as the Privy Council pointed out in Mst. Hiran Bibi's case A.I.R. 1914 P.C. 44, in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. It is not necessary, as would appear from the decision in Rangasami Gounden v. Nachiappa Gounden 46 I.A. 72 : A.I.R. 1918 P.C. 196, that every party taking benefit under a family settlement must necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary is that the parties must be related to one another in someway and have a possible claim to the property or a claim or even a semblance of a claim on some other ground as, say affection.
This case is obviously distinguishable. As we have already noticed, a family settlement must be one in which a party takes share in the property in which a party takes share in the property by virtue of independent title which is admitted to that extent by the other party. There has been no such admission by Mylai Ammal of any interest of her grandson or the illegitimate son in her property involved in the said suit a question not at all inv61ved in either C.S. No. 134 of 1945 or C.S. No. 608 of 1949. In the absence of any admission found in the compromise, it is not possible to hold that there has been any sort of family settlement under which Mylai Ammal had knowingly acknowledged the interests of her grandson and illegitimate son in the property.
16-A. It is also not possible to invoke the doctrine of estoppel against Mylai Ammal or any person claiming through or under her. True, a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the Court exercises its mind on a contested case and even if the plea of estoppel is not raised in the statement of case filed by the parties, if there was no question of suppression the court would permit such a plea to be raised. See Sailendra Narayan v. State of Orissa 1956 S.C.J. 449 : 1956 S.C.R. 72 : A.I.R. 1956 S.C. 346. But in Rangaswamy's case A.I.R. 1964 Mad. 387, we have already noticed that a condition of this kind that interest devolving upon a widow would after her death devolve upon the reversioners would have no effect upon the statutory right under Section 14(1) of the Hindu Succession Act.
17. In the case of S.S. Munnalal v. S.S. Rajkumar , it is stated that the word possessed in Section 14(1) of the Act was used in a broad sense meaning thereby "of owning one's power." The Supreme Court distinguished the Pratapmull's case A.I.R. 1936 P.C. 20 : 63 I.A. 33, in these words:
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 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's case A.I.R. 1936 P.C. 20 : 631 A. 33, undoubtedly laid down that till actual division of the share declared in her favour by a preliminary decree for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, but that rule cannot in our judgment apply after the enactment of the Hindu Succession Act. The Act is a codifying enactment, and has made far reaching changes in the structure of the Hindu Law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu Law as interest in her estate. She is under the Act regarded as a fresh stock of descent in respect of property possession 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 of her right to maintenance. She was not entitled to claim partition. But the Legislature by enacting the Hindu Women's 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 Council in Pratapmull's case A.I.R. 1936 P.C. 20 : 63 I.A. 33,...Section 4 of the Act gives an overriding effect to the provisions of the Act. If enacts:
Save as otherwise expressly provided in this Act:
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of the law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act.
(b)...Manifestly, the Legislature intended to supersede the rules of Hindu Law on all matters in respect of which there was an express provision made in the Act. Normally a right declared in an estate by a preliminary decree would be regarded as property, and there is nothing in the context in which Section 14 occurs or in the phraseology used by the Legislature to warrant the view that such a right declared in relation to the estate of a joint family in favour of a Hindu widow is not property within the meaning of Section 14. In the light of the scheme of the Act and its avowed purpose it would be difficult without doing violence to the language used in the enactment to assume that a right declared in property in favour of a person under a decree for partition is not a right to property. If under a preliminary decree the right in favour of a Hindu male be regarded as property the right declared in favour of a Hindu female must also be regarded as property.
18. It is also not possible to acknowledge any surrender of the right under Section 14(1) of the Hindu Succession Act by Mylai Ammal in favour of her grandson Doraibabu or the illegitimate son of her husband for, in the suit that culminated to the final decree there was no controversy as to the rights of Mylai Ammal beyond the widow's estate which had been declared in the preliminary decree. The ordinary rule of construction of a document is to give effect to the normal and nature meaning of the words employed in the document. There is no thing as we have noticed already in the words of the compromise decree which can be understood as a surrender of the absolute estate under Section 14(1) of the Hindu Succession Act, which Mylai Ammal got in the widow's estate she had inherited from her husband under Section 3 of the Hindu Women's Rights to Property Act, 1937. Learned Counsel for the appellant however has placed reliance upon a judgment of the Supreme Court in Krishnabtharilal v. Gulabchand (1972) 1 S.C.J. 30. A.I.R. 1971 S.C. 1041. That was a case of the compromise in the shape of a family arrangement in which a Hindu widow's life interest was sought to be enlarged by a compromise with the reversioners and some strangers. The Supreme Court considered the case by posing the question whether on a true construction of the compromise decree it could be held that the widow had been given an absolute estate. The Supreme Court said, The ordinary rule of construction of a document is to give effect to the normal and natural meaning of the words employed in the document. The compromise deed specifically says that the properties given to Pattobai were to be enjoyed by her as "Malik Mustakil". The meaning of the expression "Malik Mustakil" and Urdu word, has come up for consideration before this Court in some cases. In Dhyan Singh v. Jugal Kishore , this Court ruled that the words "Malik Mustikal" were strong, clear and unambiguous and if those words are not qualified by other words and circumstances appearing in the same document, the Courts must hold that the estate given is an absolute one. A similar view was taken by the Judicial Committee in Bishunath Prasad Singh v. Chandika Prasad Kumari A.I.R. 1933 P.C. 67 : 64 M.L.J. 302 : 60 I.A. 36. The circumstances which the compromise was entered into as well as the language used in the deed do not in any manner go to indicate that the estate given to Pattobai was anything other than an absolute estate.
Examining further whether a Hindu widow could enlarge her own right by entering into a compromise in the suit the Supreme Court observed, ...It was a compromise entered into with the presumptive reversioners. Further at no stage the plaintiffs had pleaded that the compromise entered into in 1941 was an illegal compromise. The plaintiffs took no such plea in the plaint. There was no issue relating to the validity of the compromise. Hence the High Court was not justified in going into the validity of the compromise. Further even if the compromise was an invalid one, the parties to the compromise are estopped from challenging the impugned alienations.
The Supreme Court then proceeded to the question of estoppel and observed, It is well settled that a Hindu widow cannot enlarge her estate by entering into a compromise with third parties to the prejudice of the ultimate reversioners. But the same will not be true if the compromise is entered into with persons who ultimately become the reversioners. It was urged on behalf of the respondents that Pattobai was impleaded in the earlier suit only as a legal representative of her deceased husband; therefore, she could only represent his estate and not carve out an estate for herself. But this argument overlooks the fact that according to Pattobai she was entitled to enjoy the entire properties included in the earlier suit during her lifetime, but under the compromise a fraction of those properties were given to her absolutely; that being so, the plaintiffs are estopped from backing out of that compromise. It was urged on behalf of the plaintiffs that the representation made by the defendants in the earlier suit is at best a representation as regards the true legal position and such a representation cannot estop them; before there can be an estoppel, the representation must be about some fact, the opposite side must rely on that representation and must suffer some detriment by acting on the basis of that representation. It was urged on their behalf that in this case the only representation that the plaintiffs are said to have made is that Pattobai had an absolute estate in a portion of the suit properties; this cannot be said to be a representation of a fact and therefore the same cannot form any basis for invoking the rule of estoppel. We are unable to accept this contention. From the facts set out earlier, it is clear that Bulakichand claimed the entire estate for himself after the death of Jwalaprasad. If the contention of Bulakichand is correct as we must assume for the purpose of this case, then Pattobai would have been entitled to enjoy the entire properties during her lifetime. But she gave up her right in a substantial portion of those properties on the representation by the defendants that she can take a portion of the suit properties absolutely. This is a representation of a fact and not of law. The representation is that the defendants were willing to confer on Pattobai an absolute right in a portion of the suit properties if she gave up her right in the remaining properties. Pattobai relied on that representation and gave up her claim in respective of a substantial portion of the properties included in the earlier suit. Hence the plaintiffs particularly Lakshmichand and Ganeshilal who alone were the reversioners to the estate of Bulakichand and the date of the death of Pattobai, are estopped from contending that they are entitled to succeed to the properties given to Pattobai. The other plaintiffs have no independent right of their own in the properties with which we are concerned. In Dhyan Singh v. Jugal Kishore , this Court ruled that even if an award made is invalid, the persons who were parties to that award are estopped from going behind the award in a subsequent litigation. In T.V.R. Subbu Chetty's Family Charities v. M. Raghava Mudaliar A.I.R. 1961 S.C. 797, this Court ruled that if a person having full knowledge of his rights as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponent at the relevant time, he cannot be permitted to go back on that arrangement when reversion actually opens. At the time of the compromise Lakshmichand and Ganeshilal were the nearest presumptive reversioners. They must be deemed to have known their rights under law. Under the compromise they purported to give a portion of the suit properties absolutely to Pattobai, evidently in consideration of her giving up her claim in respect of the other properties. They cannot be now permitted to resile from the compromise and claim a right inconsistent with the one embodied in the compromise. They cannot advance their case by impleading their sons as co-plaintiffs. Their sons can only claim through them.
This case is also an authority besides above, on the principle that the Courts lean strongly in favour of the family arrangements to bring about harmony in a family and do justice to its various members and avoid in anticipation future disputes which might ruin them all and that if the dispute which is settled is one between near relations then the settlement of such a dispute can be considered as a family arrangement.
19. In the case, in hand, we have no material to hold that Mylai Ammal, assuming she was aware of the enlargement of her estate by dint of Section 14(1) of the Hindu Succession Act, ever intended to give up her absolute right in the properties in favour of her grandson and/or the illegitimate son of her husband. She could no doubt enter into a compromise and/or be a party to a family arrangement by way of settlement of dispute and in the course of such settlement, give up any existing or future rights in a property in favour of any other person. The onus however to establish that she gave up her absolute right in favour of her grandson and the illegitimate son of her husband is upon those who allege that she had given up her right under Section 14(1) of the Hindu Succession Act. The sheet-anchor, we have already said, is the final decree arrived at on a compromise. We have already looked into it and we see nothing in it to show that Mylai Ammal had given up her absolute right in favour of the reversioners. The law stated in the case of S.S. Munna Lal v. S.S. Rajkumar A.I.R. 1962 S.C. 1493, cited in this judgment is enough to convince us that it was the right declared in the preliminary decree, which was made final although in accordance with the compromise between the parties and since in the suit the dispute was confined to the extent of the widow's estate to which Mylai Ammal was entitled there was no scope to enlarge the final decree to cover a case of conscious surrender of the. absolute right which Mylai Ammal got under Section 14(1) of the Hindu Succession Act.
20. Several other decisions have been cited before us. But we do not find them all relevant for, some of the citations state the same law which we have been conscious of and applied to the facts of this case. For example, no one can dispute that a consent decree is binding upon the parties thereto as a decree passed by invitum and if it is not vitiated by fraud, misrepresentation or mistake, it will have the force of res judicata. See Shankar Sitaram v. Balkrishna Sitaram A.I.R. 1954 S.C. 352 : 1954 S.C.J. 552; (1955) 1 S.C.R. 99.
21. The judgment of the Supreme Court in the case of V. Tulasamma v. Shesha Reddi A.I.R. 1977 S.C. 1944, however requires a mention. Prior to the enactment of Section 14, the textual Hindu Law as well as the Hindu Women's Rights to Property Act, 1937, restricted the nature of the interest of a Hindu female in property acquired by her and even as regards the nature of this restricted interest, there was great diversity of doctrine on the subject. It has been urged before us that under the textual law, the life interest of a female was understood not in the same sense as the interest of a widow in the estate of her husband under Section 3 of the Hindu Women's Rights to Property Act. In V. Tulasamma v. Shesha Reddi A.I.R. 1977 S.C. 1944, the Supreme Court has particularly said about the effect of Section 14 of the Hindu Succession Act as regards the nature of this restricted interest of a Hindu female in view of the diversity of doctrine on the subject. The Supreme Court has said, ...The Legislature by enacting Sub-section (1) of Section 14, intended, as pointed out by this Court in S.S. Munna Lal v. S.S. Rajkumar , 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." This Court pointed out that the Hindu Succession Act, 1956" 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 disposition which were regarded under the Hindu Law as inherent in her estate". Sub-section (1) of Section 14, is wide in its scope and ambit and uses language of great amplitude. It says that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. The words "any property" are, even without any amplification, large enough to cover any and every kind of property, but in order to expand the reach and ambit of the section and make it all comprehensive, the Legislature has enacted an explanation which says that property would include "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 the Act. Whatever be the kind of property, movable or immovable and whichever be the mode of acquisition it would be covered by Sub-section (1) of Section 14, the object of the Legislature being to wipe out the disabilition from which a Hindu female suffered in regard to ownership of property under the old Sastric law, to abridge the stringent provisions against proprietary rights which were often regarded as evidence of her perpetual tutelage and to recognize her status as an independent and absolute owner of property. This Court has also in a series of decisions given a most expansive interpretation to the language of Sub-section (1) of Section 14 with a view to advancing the social purpose, of the legislation and as part of that process, construed the words 'possessed of also in a broad sense and in their widest connotation. It was pointed out by this Court in Gumalapura Taggina Matada Kotturswami v. Setra Veeravva (1959) 1 S.C.R. (Supp.) 968 : A.I.R. 1959 S.C. 577, that the words 'possessed of mean "the state of owning or having in one's hand or power". It need not be actual or physical possession or personal occupation of the property by the Hindu female, but may be possession in law. It may be actual or constructive or in any form recognised by law. Elaborating the concept, this Court pointed out in Mangal Singh v. Rattno A.I.R. 1967 S.C. 1786, that the section covers all cases of property owned by a female Hindu although she may not be in actual, physical or constructive possession of the property provided of course, that she has not parted with her rights and is capable of obtaining possession of the property. It will, therefore, be seen that Sub-section (1) of Section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property.
The Supreme Court has in this judgment particularly dealt with the effect of Sub-section (2) of Section 14 and said, Now, Sub-section (2) of Section 14 provides that nothing contained in Sub-section (1) shall apply to any property acquired byway 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. This provision is more in the nature of a proviso or exception to Sub-section (1) and it was regarded as such by this Court in Badri Pershad v. Smt. Kanso Devi (1970) 2 S.C.R. 96 : A.I.R. 1970 S.C. 1963. It excepts certain kinds of acquisition, of property by a Hindu female from the operation of Sub-section (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of women in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in Sub-section (1). It cannot be interpreted in a manner which would rob Sub-section (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by Sub-section (1). The language of Sub-section (2) is apparently wide to include acquisition of property by a Hindu female under an instrument or a decree or order or award where the instrument, decree, order or award prescribes a restricted estate for her in the property and this would apparently cover a case where property is given to a Hindu female at a partition or in lieu of maintenance and the instrument, decree, order or award giving such property prescribes limited interest for her in the property. But that would virtually emasculate Sub-section (1), for in that event, a large number of cases where property is given to a Hindu female at a partition or in lieu of maintenance under an instrument, order or award would be excluded from the operation of the beneficent provision enacted in Sub-section (1), Since in most of such cases, where property is allotted to the Hindu female prior to the enactment of the Act, there would be a provision in consonance with the old Sastric law then prevailing, prescribing limited interest in the property and where property is given to the Hindu female subsequent to the enactment of the Act, it would be the easiest thing for the dominant male to provide that the Hindu female shall have only a restricted interest in the property and thus make a mockery of Sub-section (1). The Explanation to Sub-section (1) which includes within the scope of that sub-section property acquired by a female Hindu at a partition or in lieu of maintenance would not contain a provision prescribing restricted estate in the property. The social purpose of the law would be frustrated and the reformist zeal underlying the statutory provision would be chilled. That surely could never have been the intention of the Legislature in enacting Sub-section (2). It is an elementary rule of construction that no provision of a statute should be construed in isolation but it should be construed with reference to the context and in the light of other provisions of the statute so as, as far as possible, to make a consistent enactment of the whole statute. Sub-section (2) must, therefore, be read in the context of Sub-section (1) so as to leave as large a scope for operation as possible to Sub-section (1) and so read, it must be confined to causes 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. This constructional approach finds support in the decision in Badri Prasad's case (1970)2 S.C.R. 95 : A.I.R. 1970 S.C. 1963, where this Court observed that Sub-section (2) can come into operation only if acquisition in any of the methods enacted therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of the property.
Proceeding further, the Supreme Court dealt with the legislative intent and stated conclusively.
This circumstance would also seen to indicate that the legislative intendment was that Sub-section (2) should be applicable only to cases where acquisition of property is made by a Hindu female for the first time without any pre-existing right a kind of acquisition akin to one under gift or will. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, 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 prescribes a restricted estate in the property.
22. We have already noticed that it was only in acknowledgment of the pre-existing right of Mylai Ammal in the preliminary decree and the final decree in C.S. No. 608 of 1949, she was given a share in the properties and that thereafter it was said that after her demise her grandson and the illegitimate son of her husband would divide the properties in the manner indicated therein. This division as indicated in the final decree is said to be a result of a compromise. We have also noticed that it is not possible to say that Mylai Ammal had evidently given up her absolute interest that had accrued to her under Section 14(1) of the Hindu Succession Act. The right that Mylai Ammal exercised during her life time with respect to the properties belonging to her was not one acquired by her for the first time under the civil Court's decree. It would be in consonance with the observation of the Supreme Court to hold that mention of any division of her properties after her demise between her grandson and the illegitimate son of her husband was not binding upon her because if held otherwise, it would virtually be a concession to dominant males to succeed providing to a Hindu female only a restricted interest in the properties, one of the instances referred to in V. Tulasamma's Case A.I.R. 1977 S.C. 1944.
23. Learned Trial Judge after taking into consideration the evidence and the circumstances held that there is no material to show that the settlement deed (Ex. P-8) by Mylai Ammal in favour of the plaintiff in C.S. No. 313 of 1976 was not executed by her voluntarily out of her own free will and while she was in a sound state of mind and health. This finding of the learned trial Judge has not been challenged before us seriously. We have however looked into the contents of Ex. P-8, which is registered settlement deed dated 12.6.1967. The beneficiary under the said settlement deed is admittedly the brother's son of the settler Mylai Ammal. The first defendant in his written statement has specifically stated that the plaintiff (beneficiary) was helping Mylai Ammal and was With her. In the plaint in C.S. No. 134 of 1945 it is clearly stated that Mylai Ammal and other defendants in the said suit had always been taking a hostile attitude towards the plaintiff in the said suit and that Mylai Ammal, who was generally of quarrelsome disposition had expressed considerable hatred against the first defendant in C.S. No. 313 of 1976 and his mother on several occasions and even went to swear that they would be left as paupers. It is also on the record by way of admission of the said defendant that Mylai Ammal died only in the house of the plaintiff in 1973 although he has said that after her death, the dead body was removed by him to his house. We are not referring to the other evidence on the record as learned trial Judge has referred to all the relevant evidence elaborately and recorded a specific finding. We do not find anything erroneous either in the consideration of the evidence by the learned Trial Judge or in applying the principles and doctrines of law which have to be applied to such a case. There has not been any other argument or contention except the one with respect to the question of Mylai Ammal's right of disposition by way of the settlement in favour of the plaintiff in C.S. No. 313 of 1976 and the effect of the compromise decree upon her right under Section 14(1) of the Hindu Succession Act, 1956. We do not find any merit in these appeals.
24. In the result, the appeals are dismissed. The parties however shall bear their respective costs throughout.