Madras High Court
Elayammal vs N.Padmavathy on 24 September, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.09.2012
C O R A M
THE HONOURABLE MR.JUSTICE G.RAJASURIA
A.S.No.170 of 2006
and
CRP PD No.376 of 2005
Elayammal .. Appellant in A.S.No.170 of 2006
and
Petitioner in CRP PD No.376 of 2005
vs.
1. N.Padmavathy
2. Tamilselvi
3. Revathi
4. Sangeetha
5. Deivanai
6. Subramani
7. Jothi
8. Tailor Manikandan
9. Marayammal
10.Thenmozhi
11.Vasanthi
12.Mani
13.Sundaram
14.Friends Screen Printing
Karur Bye Pass Road
Molagoundanpalayam
Erode District .. Respondents in A.S.No.170 of 2006
and
CRP PD No.376 of 2005
A.S.No.170 of 2006:
Appeal filed as against the judgment and decree dated 21.10.2005 passed by the learned Additional District Judge/Fast Track Court No.I, Erode in O.S.No.59 of 2003.
CRP PD No.376 of 2005:
Civil Revision Petitioner preferred under Article 227 of the Constitution of India as against the fair and decreetal order dated 30.11.2004 passed by the learned Additional District Judge/Fast Track Court No.I, Erode in I.A.No.409 of 2004 in O.S.No.59 of 2003.
For Appellant/ : Mr.N.Manokaran
in A.S.No.170 of 2006
and Petitioner in
CRP PD No.376 of 2005
For respondents : Mr.V.Ayyadurai
1 to 4 in A.S.No.
170 of 2006 and
CRP PD No.376 of 2005
COMMON JUDGMENT
This appeal is focussed at the instance of the plaintiff as against the judgment and decree dated 21.10.2005 passed by the learned Additional District Judge/Fast Track Court No.I, Erode in O.S.No.59 of 2003 and the Civil Revision Petition is focussed as against the fair and decreetal order dated 30.11.2004 passed by the learned Additional District Judge/Fast Track Court No.I, Erode in I.A.No.409 of 2004 in O.S.No.59 of 2003.
2. The parties, for convenience sake, are referred to here under according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the germane facts absolutely necessary for the disposal of this appeal as well as the civil revision petition would run thus:
i] The plaintiff/appellant herein filed the suit seeking the following reliefs:
To pass a decree in favour of the plaintiff and as against the defendants
a) directing the division of the suit properties into 10 equal shares with reference to good and bad portions and allot 6/10 th share to the plaintiff and put her in separate possession of such shares;
b) appointing a Commissioner to divide the suit properties as aforesaid;
c) and for costs.
(extracted as such)
ii) D1 to D4 filed the written statement resisting the suit. D5 and D6 filed the written statement separately. Others remained exparte.
iii) The trial court framed the relevant issues.
iv] During trial, the plaintiff examined herself as PW1 along with P.Ws.2 and 3 and marked Exs.A1 to A14. On the defendants' side, the first defendant examined herself as D.W.1 along with DW2 and marked Exs.B1 to B6.
v] Ultimately, the trial court decreed the suit by passing the preliminary decree to the following effect:
VERNACULAR (TAMIL) PORTION DELETED (extracted as such)
vi) Being aggrieved by and dissatisfied with the judgment and decree of the trial court, the plaintiff has preferred this appeal on various grounds.
vii) It so happened that during the pendency of the suit in O.S.No.59 of 2003, I.A.No.409 of 2004 was filed by the appellant/plaintiff seeking the following relief:
-To appoint an advocate commissioner for taking the documents i.e., the dispute document the Will alleged to have been executed by Jaganathan dated 15.01.1978 along with the admitted signature contained in the documents, i.e., Register maintained by the Registrar, Erode for the registration of the sale deed dated 21.11.1975 (Document No.4420 of 1975) and plan attached with the said document No.4420/1975 and the signatures contained in the sale deed dated 20.2.1980 i.e., the sale deed executed by K.T.Chinnappan to the handwriting expert for examining and comparing the admitted signatures of the late.Jaganathan with the dispute signature contained in the Will dated 15.1.1978, and the signature of K.T.Chinnappan, the alleged witness in the said Will, produced by the respondents by the handwriting expert attached to the Forensic Department, Kilpauk, Chennai-4 and entrust the documents to handover it to the expert and bring back the same."
However, the lower court after hearing both sides dismissed the said I.A; as against which CRP PD No.376 of 2005 was filed before this court pending the original suit. However, as there was no stay granted by this court in the civil revision petition, the suit was decreed as stated supra. Whereupon, the plaintiff preferred the aforesaid appeal.
viii) Wherefore, the first appeal and the civil revision petition have been listed together.
4. Broadly but briefly, the case of the plaintiff in general, as could be discerned from the pleadings as well as from the evidence available on record would be as under:
One Sengoda Gounder owned all the suit properties as his self-acquired properties; he vide Will dated 25.08.1947 bequeathed all his properties in favour of his wife Lakshmiammal for life and thereafter in favour of his grand children to be born to his son Muniappan absolutely; the said Sengoda Gounder died after 1956; whereas Lakshmiammal the life estate holder died during the year 1986; Muniappan, the son of the couple Sengoda Gounder and Lakshmiammal pre-deceased Lakshmiammal leaving behind him his widow Elayammal-the plaintiff herein and his son Nagappan. Padmavathi (D1) is the wife of Nagappan, who died on 05.06.1991 leaving behind D2, D3 and D4 as his children. Muniappan had one other son by name Jagannathan, who died due to sickness. Accordingly, the plaintiff-Elayammal the widow of Muniappan would claim half share in the entire suit properties and also 1/5 th share in the remaining half share of Nagappan as she happened to be one of the Class-I heirs along with the legal heirs of Nagappan.
5. Per contra, the contesting defendants, viz., D1 to D4 would portray and project their defence, which could tersely and briefly be set out thus:
The genealogy as found set out in the plaint is an admitted one. However, the said Jagannathan before his death due to illness, executed the Will Ex.B6 bequeathing his half share in the entire suit properties in favour of D2, D3 and D4; in respect of the remaining half share the said Nagappan, executed a settlement deed-Ex.B1 in favour of his wife-Padmavathi(D1) bequeathing a portion of the suit properties. As such, the claim of the plaintiff is untenable and accordingly, he would pray for the dismissal of the suit.
6. The points for consideration are as under:
1. Whether the lower court wrongly upheld the validity of Ex.B6 even though Ex.B6 would not refer to the settlement deeds Exs.A1, A10, A11 and B1?
2. Whether the lower court was justified in rejecting the prayer of the plaintiff for getting the assistance of an hand writing expert in comparing, analysing and verifying the genuineness of the purported signature of Jagannathan in the Will Ex.B6 and also the purported signature of Samiappan-one of the attesting witnesses to the Will?
3. Whether the parties as well as the lower court were justified in ignoring the mandate as contained in Section 14(1) of the Hindu Succession Act in the light of the decision of the Hon'ble Apex Court reported in (1977) 3 SCC 99 [V.Tulasamma and others vs. Sesha Reddy (Dead) by Lrs.] and also the precedents that followed the said decision and whether the parties were justified in not getting the Will dated 25.08.1947 marked during trial for proper appreciation of the facts and for the disposal of the case as per law?
4. Whether the suit got vitiated because of non-marking of the Will dated 25.08.1947?
5. Whether there is any perversity or illegality in the judgment and decree passed by the trial court?
7. The learned counsel for the plaintiff as well as the defendants cited the following precedents:
Decisions cited on the side of the appellant/plaintiff:
1. 2000(3) SCC 708 [Roop Singh (dead) through L.Rs. vs. Ram Singh (dead) through L.Rs.]
2. AIR 1999 Delhi 281 [Smt.Rama Kanta Jain vs. M.S.Jain and others]
3. 2011(1) MWN (Civil) 770 -Madras High Court [Dhanabaghyam Ammal (died) and others vs. Dhanavel]
4. 2009(16) SCC 517 [Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan and others]
5. AIR 1987 SC 1775 [Thamma Venkata Subbamma (dead) by L.R.vs. Thamma Rattamma and others]
6. 2003(1) MLJ 145-Madras High Court [Kanna Gounder and another vs. Arjuna Gounder]
7. 2004(2) MLJ 457-Madras High Court[Shanmugaiah and another vs. Thirumalayandi alias Thirumalai Pandaram and others]
8. AIR 2009 SC 2735 [Ramdas vs. Sitabai and others]
9. 2009(5) CTC 380 (SC) [Gajara Vishnu Gosavi vs. Prakash Nanasaheb Kamble and others] 10.2007(2) SCC 225 [Apoline D'Souza vs. John D'Souza] 11.2007(2) CTC 172 (SC) [Niranjan Umeshchandra Joshi vs. Mridula Jyoti Rao and others] 12.2008(1) CTC 97[D.B.of Madras High Court] {J.Naval Kishore vs. D.Swarna Bhadran] 13.2008(2) CTC 135 [Madurai Bench of Madras High Court] {Sarojini and another vs. Mohandoss and others] 14.2005(1) CTC 334 [D.B.of Madras High Court] {L.H.Vidyapoornan vs. L.H.Premavathy and others] 15.2010(7) SCC 717 [Laxman Tatyaba Kankate and another vs. Taramati Harishchandra Dhatrak]
16. 2007(1) MLJ 797(SC) [Sheela Devi and others vs. Lal Chand and another] 17.2011(2) MWN (Civil) 637 [Madras High Court] {K.R.Chinnasamy vs. K.R.Chinnasamy] Decisions cited on the side of the respondents/Defendants:
1. AIR 1935 Mad 865 [Akkaraju Visvanadham and others vs. Duthalur Anjaneyalu and another]
2. AIR 1953 SC 495 [C.N.Arunachala Mudaliar vs. C.A.Muruganatha Mudaliar and another]
3. AIR 1960 CAL 609 [Indraloke Studio Ltd. vs. Smt.Santi Debi and others]
4. 1973 (Vol.86) LW 682 [Madras High Court] [Ammalu Ammal vs. Govindaswami Reddiar and another]
5. AIR 1976 Mad 295 [P.Somasundaram vs. K.Rajammal]
6. AIR 1980 SC 419 [BanwariLal vs. Trilok Chand and others]
7. (1996) 5 SCC 201 [Usha Subbarao vs. B.N.Vishveswaraiah and others]
8. (2004) 1 SCC 581 [K.Balakrishnan vs. K.Kamalam and others]
9. (2009) 6 SCC 99 [G.Sekar vs. Geetha and others]
10.(2009) 9 SCC 48 [G.Varalakshmi and another vs. G.Srinivasa Rao (dead) through L.Rs and another]
8. The learned counsel for the plaintiff would submit that Ex.B6 the Will executed by Jagannathan, was not referred to in the other deeds vide Exs.A1, A10, A11 and B1. If really, there existed Ex.B6, even anterior to the emergence of those deeds, then certainly that would have got referred to in those documents. Only as an after thought, Ex.B6 was produced during trial and no reply also was given to the pre-litigation notice issued by the plaintiff claiming partition. As such, the court below simply took it for gospel truth the validity of the Will Ex.B6 even though it was not proved strictly in accordance with Section 68 of the Indian Evidence Act.
9. No doubt, the applicability of Section 14(1) of the Hindu Succession Act as well as the dicta as found enunciated in Tulasamma's case and the subsequent cases of the Hon'ble Apex Court was not considered in this matter.
10. At the outset itself, I would like to point out that in this case two Wills are involved. However, the Will dated 25.08.1947 executed by Sengoda Gounder is the bed rock of the very litigation itself. But for that Will, the order of succession would be entirely different. Only on marking of the Will, one could understand as to how the entire principles enunciated in Tulasamma's case could be pressed into service. I would like to extract here under the relevant portion from the said precedent of the Hon'ble Apex Court reported in 1977(3) SCC 99 [V.Tulasamma and others vs. Sesha Reddy (Dead) by Lrs.]. Certain excerpts from it would run thus:
"9. Similarly Golapchandra Sarkar Sastri dealing with the nature and incidents of the Hindu widow's right to maintenance observes in his treatise Hindu Law at p. 533 thus:
When the husband is alive, he is personally liable for the wife's maintenance, which is also a legal charge upon his property, this charge being a legal incident of her marital co-ownership in all her husband's property. . . . But after his death, his widow's right of maintenance becomes limited to his estate, which, when it passes to any other heir, is charged with the same.... There cannot be any doubt that under Hindu law, the wife's or widow's maintenance is a legal charge on the husband's estate; but the Courts appear to hold, in consequence of the proper materials not being placed before them, that it is not so by itself, but is merely, a claim against the husband's heir, or an equitable charge on his estate: hence the husband's debts are held to have priority, unless it is made a charge on the property by a decree. The view of the author appears to be that the Courts hold that the right of maintenance of a widow does not amount to a legal charge and this is so because proper materials were not placed before the Courts. In other words, the author seems to indicate that the original Hindu law contained clear provisions that the right of maintenance amounts to a charge on the property of her husband and the obligation runs with the property so that any person who inherits the property also takes upon the obligation to maintain the widow. Sastri quotes from the original texts various extracts regarding the nature and extent of the right of maintenance of the Hindu woman some of which may be extracted thus:
The support of the group of persons who should be maintained, is the approved means of attaining heaven, but hell is the man's portion if they suffer: therefore he should carefully maintain them.
The father, the mother, the Guru (an elderly relation worthy of respect), a wife an offspring, poor dependants, a guest, and a religious mendicant are declared to be the group of persons who are to be maintained. Manu, cited in Srikrishna's commentary on the Dayabhaga, ii, 22.
It is declared by Manu that the aged mother and father, the chaste wife, and an infant child must be maintained even by doing a hundred misdeeds. Manu cited in the Mitakshara while dealing with gifts. The last extract clearly shows the imperative nature of the duty imposed on the owner of the property to maintain wife, aged mother, father, etc. even at the cost of perpetrating a hundred misdeeds.
10. Similarly Sastri in his book quotes Yajnavalkya at p. 523 thus:
Property other than what is required for the maintenance of the family may be given. The learned Author highlights the importance of the right of maintenance as being a charge on the property of the husband and observes as follows:
The ancestral immovable property is the hereditary source of maintenance of the members of the family, and the same is charged with the liability of supporting its members, all of whom acquire a right to such property from the moment they become member s of the family, by virtue of which they are at least entitled to maintenance out of the sane. Such property cannot be sold or given away except for the support of the family: a small portion of the same may be alienated, if not incompatible with the support of the family.
There is no difference between the two schools as regards the view that the ancestral property is charged with the maintenance of the members of the family, and that no alienation can be made, which will prejudicially affect the support of the group or persons who ought to be maintained. Hence heirs are bound to maintain those whom the last holder was bound to maintain. The author further points out that under the Mitakshara law the daughter-in-law does, with her husband, acquire a right to the ancestral property, since her marriage, but she becomes her husband's co-owner in a subordinate sense, and the principal legal incident of this ownership is the right to maintenance, which cannot be defeated by gift or devise made by the holder of such property. Similar observations have been made by the learned Author at p. 528 of the book which may be extracted thus:
According to both the schools, the lawfully wedded wife acquires from the moment of her marriage a right to the property belonging to the husband at the time and also to any property that may subsequently be acquired by him, so that she becomes a co-owner of the husband, though her right is not co-equal to that of the husband, but a subordinate one, owing to her disability founded on her status of perpetual or lifelong tutelage or dependence.
* * * This right of the wife to maintenance from her husband is not lost even if the husband renounces Hinduism.
This right subsists even after the husband's death although her husband's right as distinguished from hers may pass by survivorship or by succession to sons or even to collaterals; these simply step into the position of her husband, and she is required by Hindu law to live under their guardianship after her husband's death. Finally it is pointed out by the learned Author at p. 529 of the book that the right which a woman acquires to her husband's property subsists even after his death and observed thus:
According to both the schools, the right which a woman acquires to her husband's property subsisis after his death, whether his interest passes by succession or by survivorship to the male issue or any other person, and that this right does not depend upon the widow's not possessing other means of support.
11. Summarising the nature of the liability of the husband to maintain his wife, the learned Author observed as follows at p. 533 of his book:
When the husband is alive, he is personally liable for the wife's maintenance, which is also a legal charge upon his property, this charge being a legal incident of her marital co-ownership in all her husband's property.... But after his death, his widow's right of maintenance becomes limited to his estate, which, when it passes to any other heir, is charged with the same.... There cannot be any doubt that under Hindu law the wife's or widow's maintenance is a legal charge on the husband's estate; but the Courts appear to hold, in consequence of the proper materials not being placed before them, that it is not so by itself, but is merely a claim against the husband's heir, or an equitable charge on his estate; hence the husband's debts are held to have priority, unless it is made a charge on the properly by a decree. To sum up, therefore, according to Sastri's interpretation of Shastric Hindu law the right to maintenance possessed by a Hindu widow is a very important right which amounts to a charge on the property of her husband which continues to the successor of the property and the wife is regarded as a sort of co-owner of the husband's property though in a subordinate sense i.e. the wife has no dominion over the property.
12. Similarly Mayne in his Treatise on Hindu law and Usage, 11th Edn., has traced the history and origin of the right of maintenance of a Hindu woman which according to him arises from the theory of an undivided family where the head of the family is bound to maintain the members including their wives and their children. The learned Author observes thus: (p. 813) The importance and extent of the right of maintenance necessarily arises from the theory of an undivided family. The head of such a family is bound to maintain its members, their wives and their children, to perform their ceremonies and to defray the expenses of their marriages; Again at p. 816 para 684 the author stresses the fact that the maintenance of a wife is a matter of personal obligation on the part of the husband and observes thus:
The maintenance of a wife, aged parents and a minor son is a matter of personal obligation arising from the very existence of the relationship and quite independent of the possession of any property, ancestral or acquired .... It is declared by Manu that the aged mother and father, the chaste wife and an infant child must be maintained even by doing a hundred misdeeds. Again it has been observed at p. 818 para 687:
The maintenance of a wife by her husband is, of course, a matter of personal obligation, which attaches from the moment of marriage. The author points out at p. 821 para 689 that even after the coming into force of the Hindu Women's Rights to Property Act, 1937 which confers upon the widow a right of succession in respect of the non-agricultural property, she is still entitled to maintenance from the family property. The author observes thus:
It cannot, therefore, be said that the reason of the right has ceased to exist and the right is gone. It was accordingly held that the widow of a deceased coparcener is still entitled to maintenance notwithstanding her right under the Act to a share in the non-agricultural part of the family estate. Furthermore, the author cites the passage of Narada cited in Smritichandrika regarding which there is no dispute. The saying runs thus:
Whichever wife (patni) becomes a widow and continues virtuous, she is entitled to be provided with food and raiment. At p. 822 para 690 the author points out that the right of a widow to be maintained is taken over even by the heirs of the husband who succeed to his property either by inheritance or by survivorship. In this connection the following observations are made:
She is entitled to be maintained where her husband's separate property is taken by his male issue. Where, at the time of his death, he was a coparcener she is entitled to maintenance as against those who take her husband's share by survivorship. The Hindu law is so zealous in guarding the interests of Hindu women that the obligation for maintaining the Hindu woman falls even on the King when he takes the estate by escheat or by forfeiture.
13. Similarly Mulla in his book Hindu law, 14th Edn., describes the incidents and characteristics of Hindu wife's right to maintenance and observes thus at p. 597:
A wife is entitled to be maintained by her husband, whether he possesses property or not When a man with his eyes open marries a girl accustomed to a certain style of living, he undertakes the obligation of maintaining her in that style. The maintenance of a wife by her husband is a matter of personal obligation arising from the very existence of the relationship, and quite independent of the possession by the husband of any property, ancestral or self-acquired. We might further mention that the Hindu women's right to maintenance finally received statutory recognition and the entire law on the subject was consolidated and codified by the Hindu Married Women's Right to Separate Maintenance and Residence Act, 1946 hereinafter to be referred to as the Act of 1946 which came into force on April 23, 1946. Thus there appears to be complete unanimity of the various schools of Hindu law on the important, incidences and indicia of the Hindu women's right to maintenance which has now received statutory recognition and which only shows that the right to maintenance though not an indefeasible right to property is undoubtedly a pre-existing right. We shall now refer to some of the authorities which have dealt with this aspect of the matter.
14. In Narayan Rao Ramchandra Pant v. Ramabai1 the Judicial Committee pointed out that the widow's right to maintenance arises from the common law which developed from time to time. Justice West of the Bombay High Court appears to have entered into a very elaborate discussion of the entire law on the subject in Lakshman Ramchandra Joshi v. Satyabhamabai2 and observed as follows:
These several authorities, no doubt, afford, in combination, a strong support to the proposition that a widow's maintenance, especially as against the sons, is a charge on the estate, a right in rem in the fullest sense adhering to the property, into whatever hands it may pass. These observations were reiterated in a later case in Narbadabai v. Mahadeo Narayan, Kashinath Narayan and Shamabai3. The observations of West, J., in Lakshman Ramchandra Joshi case2, were fully approved by the Judicial Committee in Dan Kuer v. Sarla Devi4 where it was observed:
But, apart from this circumstance, the judgment of West, J., whose dissertations on Hindu law must always command great esteem, contains an exposition of the law on this point, and the case is therefore rightly regarded as a leading authority on the question. In the course of his judgment that learned Judge quotes with approval the remarks of Phear, J., in Srimati Bhagabati v. Kanailal Mitter (1872) 8 Ben. L.R. 226 that as against one who has taken the property as heir, the widow has a right to have a proper sum for her maintenance ascertained and made a charge on the property in his hands. She may also, doubtless, follow the property for this purpose into the hands of anyone who takes it as a volunteer, or with notice of her having set up a claim for maintenance against the heir and that when the property passes into the hands of a bona fide purchaser without notice, it cannot be affected by anything short of an already existing proprietary right; it cannot be subject to that which is not already a specific charge, or which does not contain all the elements necessary for it ripening into a specific charge. Summarising the entire position the Privy Council enunciated the law thus:
The true rule of Hindu law in such matters would appear to be as follows:
Two obligations confront a joint Hindu family. (1) The obligation to pay the debts (for instance, of the father) binding on the family; and (2) the moral obligation to provide maintenance to the widows of the family. The latter obligation would. under certain circumstances, ripen into a legal obligation, as, for instance, when a charge is created on specific property of the family either by agreement or a decree of the court; that, so long as neither of these two obligations has taken the form of a charge on the family property, the obligation to pay the binding debts will have precedence (as for instance, in the course of the administration of the estate) over mere claims of a female member's maintenance fee: but. if either of these two obligations assumes the shape of a charge, it would take precedence over the other. In Pratapmull Agarwalla v. Dhan Bati Bibi5 the Judicial Committee pointed out that while a mother may not be the owner of her share until partition is made and has no pre-existing right with regard to the share in the property, but she has a pre-existing right for maintenance. This Court also has made similar observations in a large number of cases regarding the nature and extent of the Hindu women's right to maintenance. In Beni Bai v. Shri Yadunandan Ram6 this Court, while dealing with a situation where a widow claimed the right of maintenance but refused to hand over possession of the property until she secured her proper maintenance, observed as follows:
It cannot be disputed that the appellant who is the widow of a pre-deceased son of Jangi Jogi was entitled to receive maintenance so long as she did not re-marry out of the estate of her father-in-law. Although her claim for maintenance was not a charge upon the estate until it had been fixed and specifically charged thereupon her right was not liable to be defeated except by transfer to a bona fide purchaser for value without notice of a claim or even with notice of a claim unless the transfer was made with the intention of defeating her right. The courts in India have taken the view that where a widow is in possession of a specific property for the purpose of her maintenance a purchaser buying with notice of her claim is not entitled to possession of that property without first securing proper maintenance for her: (vide Rachawa v. Shivayogappa ILR 18 Bom 679).... In the present case it is difficult to understand how the appellant could be deprived of the possession of properties by a trespasser. Moreover she was presumably in possession of these properties in lieu of her right of maintenance and could not be deprived of them even by Jugli Bai without first securing proper maintenance for her out of the aforesaid properties. In Sheo Dyal Tewaree v. Judoonath Tewaree7 the Calcutta High Court stressed the fact that although the widow may not be the owner of a share but she had a pre-existing right of maintenance.
20. Thus on a careful consideration and detailed analysis of the authorities mentioned above and the Shastric Hindu law on the subject, the following propositions emerge with respect to the incidents and characteristics of a Hindu woman's right to maintenance:
(1) that a Hindu woman's right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her even if he has no property. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow;
(2) though the widow's right to maintenance is not a right, to property but it is undoubtedly a pre-existing right in property i.e. it is a jus ad rem not jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a decree from the civil court;
(3) that the right of maintenance is a matter of moment and is of such importance that even if the joint property is sold and the purchaser has notice of the widow's right to maintenance, the purchaser is legally bound to provide for her maintenance;
(4) that the right to maintenance is undoubtedly a pre-existing right which existed in the Hindu law long before the passing of the Act of 1937 or the Act of 1946, and is, therefore, a pre-existing right;
(5) that the right to maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which the wife becomes a sort of co-owner in the property of her husband, though her co-ownership is of a subordinate nature; and (6) that where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchases the same is in a position to make due arrangements for her maintenance. If a husband bequeaths his property to his wife for life and thereafter to his children or some other person, absolutely the question might arise as to whether such bequeathal would blossom into absolute right in favour of the life estate holder, viz., the wife who is deemed to be the maintenance holder under the Hindu Law.
11. In the following subsequent cases also the Hon'ble Apex Court has followed the Tulasamma's case cited supra.
(i) (2010) 9 SCC 602 [ Gaddam Ramakrishnareddy and others vs. Gaddam Ramireddy and another]
(ii) (2010) 10 SCC 235 [Subhan Rao and others vs. Parvathi bai and others]
12. The pertinent question that would arise is as to why Lakshmiammal should not be treated as the absolute owner by virtue of Section 14(1) of the Hindu Succession Act in view of the fact that she had pre-existing right to get maintenance from Sengoda Gounder.
13. Necessarily, the Will ought to have been exhibited for better appreciation. Simply because both sides did not create any doubt about the Will dated 25.08.1947, that would not absolve them from producing the Will and marking it. As such, I am of the firm view that the said Will should be necessarily produced by the party/parties concerned and get it marked in the way known to law. If the court as per Section 14(1) of the Hindu Succession Act, after entertaining additional oral and documentary evidence relating to the Will and giving due opportunity of being heard both sides comes to the conclusion that as per Tulasamma's case and the mandate as contained in Section 14(1) of the Hindu Succession Act, her life estate got blossomed into absolute right, then the question of the subsequent Will executed by Jagannathan vide Ex.B6 would have no place at all in the litigation because Jagannathan pre-deceased Lakshmiammal. Consequent upon the death of Lakshmiammal during the year 1986, her only son Nagappan would be entitled to the property, who during his life time relinquished his right as per Ex.B1 i.e.,a portion of the suit properties to his wife and the remaining item would be available at the rate of 1/5 th share each in favour of the plaintiff, Nagappan's widow-Padmavathi (D1) and his children, viz., D2, D3 and D4. But on the other hand, if Lakshmiammal is taken to be only the life estate holder then only the question of considering the validity of considering the Will executed by Jagannathan under Ex.B6 would arise. Virtually, the plaintiff herself wanted the purported signature of the testator and the witness-Samiappan should be examined with the assistance of an expert, I am of the considered opinion that the lower court should have readily accepted the prayer for such examination. There is no knowing of the fact as to why such prayer should be rejected and that too when the Will emerged only a few months anterior to the testator's death.
14. The learned counsel for the plaintiff also would argue that but for the execution of the Will by Jagannathan, his brother and mother alone would be the legal heirs and not any other third party and there was no necessity for him to execute such a Will. However, the learned counsel for the defendants would submit that there was nothing unnatural in the execution of the Will by Jaganathan because he was under the care and custody of Nagappan, his brother and he wanted his brother's children to be benefited.
15. Be that as it may, after giving due opportunity to the plaintiff to get the purported signatures of the testator Jagannathan and the attesting witness-Samiappan verified, a final decision could be taken in respect of the validity of the Will Ex.B6 and that too after taking into consideration the various situations, under which Ex.B6 emerged and the court also in such an even should consider as to why the mother was disinherited by Jaganathan in the Will. The lower court simply believed the Will without giving due opportunity to the plaintiff to challenge the Will as per law.
16. Without any rhyme or reason the lower court simply jumped to the conclusion as though the plaintiff is entitled to 1/ 10 th share in the half share of Nagappan excluding the portion settled as per Ex.B1 the settlement deed dated 06.05.1991. Nagappan, who died on 5.6.1991, left behind him only five legal heirs viz., the plaintiff-his mother, D1-his widow and D2, D3 and D4 his three children; accordingly, if taken it will come to only 1/5 th share in the share of Nagappan excluding the portion settled as per Ex.B1 to his wife. As such, neither the lower court nor the parties handled the matter properly and wherefore, interference is warranted.
17. Accordingly, the judgment and decree of the trial court in O.S.No.59 of 2003 as well as the fair and decreetal order in I.A.No.409 of 2004 are set aside and the matter is remitted back to the lower court for framing the following additional issues as under:
1. Whether the Ex.B6-Will is valid even though it is not referred to in Exs.A1, A10, A11 and B1?
2. Whether the life estate of Lakshmiammal as per the Will dated 25.08.1947 got blossomed into absolute estate in her favour by virtue of Section 14 (1) of the Hindu Succession Act?
Both sides shall be given due opportunity of adducing additional oral and documentary evidence as contemplated supra and the parties are directed to appear before the trial court on 15.10.2012. The lower court shall do well to see that the matter is disposed of within a period of three months from the date of receipt of a copy of this order. The lower court shall also appoint an Advocate Commissioner at the costs of the plaintiff and resort to the following procedure:
"An Advocate Commissioner shall be appointed :
(a) To carry the relevant documents in connection with this case personally in a sealed cover;
(b) and produce the same before the Forensic Expert;
(c) leave it in his custody under his acknowledgement for as many days as the Forensic Expert may require;
(d) collect the record from the Forensic Expert on the day as may be fixed by him;
(e) bring it back and lodge it with the Court.
The Forensic Expert is directed to complete the examination of the records in any event, within 48 hours after the depositing of the same by the Advocate Commissioner with him."
18. In the result, this appeal as well as the Civil Revision Petition are allowed setting aside the judgment and decree in O.S.No.59 of 2003 as well as the order passed in I.A.No.409 of 2004 and the matter is remitted back to the trial court, which shall do well to see that the matter is disposed of as mandated supra.
vj2 To The Additional District Judge, Fast Track Court No.I, Erode