Madras High Court
Jayalakshmi Ammal vs Kaliaperumal on 29 April, 2014
Equivalent citations: AIR 2014 MADRAS 185, (2014) 3 ICC 911, (2014) 7 MAD LJ 397, (2014) 2 MAD LW 894
Author: S.Vimala
Bench: S.Vimala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.04.2014 CORAM THE HONOURABLE Mrs. JUSTICE. S.VIMALA Second Appeal No.471 of 1993 Jayalakshmi Ammal .... Appellant/2nd plaintiff Vs. Kaliaperumal .... Respondent/1st deft. Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree, dated 08.12.1987, in A.S.No.213 of 1986 on the file of the District Court, Cuddalore, setting aside the judgment and decree of the Subordinate Judge, Vridhachalam, dated 04.03.1986 in O.S.No.12 of 1984. For Appellants : Mr. S.Parthasarathy, Sr. Counsel, for, M/s. J.Ramakrishnan For Respondents : Mrs. Hema Sampath, Sr. Counsel, for, M/s. Meenal - - - J U D G M E N T
Fishbowl existence; other people's insensitivity; ridicule even from friends; hurt by the husband; criticism and ostracization from the family and society; frustration because of ill-treatment, yet only limited options - all because of the myth that infertility is always a woman's problem. This is the status of married women, who do not become pregnant. Though women alone are not the cause for this issue, yet, the problem of infertility has broken many homes, separated many couples and caused disharmony among couples while they were living together. Parenthood is the expected status, expected immediately after marriage and out of the couple, it is women who expect more. They themselves ignorantly hurt by asking the question, it is so natural, why can't I?, and also by believing that child-bearing is the ultimate expression of femininity - without understanding the real cause for the problem. Even then, others make the life of women miserable and make women feel inadequate and incomplete as if they are the cause for the failure. The most inhuman form of insult is the husband getting married while the first wife is alive, trying to justify the second marriage in the name of giving gift of property to the first wife. This is one such classic case.
2.The second wife, who entered into the life of Dharmarajpillai, while the first wife was alive, challenges the alienation made by the first wife, who claims the property as per the settlement deed, Ex.A2, executed by her husband.
A. Whether the recitals in the settlement deed, Ex.A2, executed by the husband in favour of his first wife for the purpose of facilitating his second marriage, would confer limited estate or absolute estate upon the settlee ?
and B. Even if the instrument allotting the property prescribes a restricted interest in the property, if the property is bequeathed towards her pre-existing right to maintenance and if the bequeath did not fall within the ambit of Section 14(2) of Hindu Succession Act, 1956, whether it would get enlarged into an absolute estate by virtue of Section 14(1) of Hindu Succession Act, 1956 ?
- are the main issues to be considered in this second appeal.
3. The second plaintiff, Jayalakshmi, who is the second wife of Dharmaraj Pillai, is the appellant. Her minor son, since deceased, is the first plaintiff. Kaliaperumal, who is the first defendant is the purchaser of the property from the second defendant / the first wife of Dharmaraj Pillai, i.e., Swarnathammal.
3.1. The second plaintiff filed the suit informa pauperis in O.P.No.33 of 1983 / O.S.No.12 of 1984 (along with her minor son, Iyyappan), seeking the relief of declaration in respect of first item of the suit property, that the first plaintiff is entitled to first item of the suit property, after the death of the second defendant and further seeking a relief of declaration that both the plaintiffs are absolutely entitled to second item of the suit property as well as possession.
3.2. The said suit was decreed. The first defendant, Kaliaperumal, filed an appeal in A.S.No.213 of 1986 and the appeal was allowed. Challenging the same, the second plaintiff has filed this second appeal, only as against the first defendant, in respect of the first item of the suit property. The first defendant did not claim any right over the second item of the suit property. Therefore, this second appeal is limited only to the first item of the suit property.
4. The parties will be referred to in this second appeal as per their rank before the trial Court, for the sake of convenience.
5. Brief facts:-
One Dharmarajpillai had two wives. The first wife was the second defendant, Swarnathammal. They had no issues, though they lived together for 26 years. Therefore, Dharmarajpillai wanted to marry for the second time, but with the consent of the second defendant. Consent was expressed through a registered document, dated 19.11.1965, executed by the second defendant in favour of her husband. Thereafter, Dharmarajpillai married Jayalakshmiammal, i.e., the appellant / 2nd plaintiff, on 03.12.1965. The child born through the second wife is the first plaintiff, Iyyappan. After the filing of the suit, the first plaintiff, Iyyappan, died. Jayalakshmiammal is on record, in the capacity as Legal Representative of the deceased, first plaintiff also.
5.1.On the date of execution of the consent document, i.e., on 19.11.1965, Dharmarajpillai executed a settlement deed, Ex.A2, in favour of the second defendant in respect of first item of the suit property. The terms of the document read thus:
moapw; fz;l tPl;oy; FoapUe;J bfhz;L vt;tpj ghujPdKk; bra;ahky; g";rhaj;J thp KjyhdJk; ePna brYj;jpf; bfhz;L mDgtpj;J tu ntz;oaJ/ cdf;F thhpR Vw;gl;lhy; cdf;Fg; gpwF cdJ thhpR rh;t Rje;jpukha; Mz;L mDgtpj;Jf; bfhs;s ntz;oaJ/ cdf;F thhpR Vw;glhtpl;lhy;. cdf;Fg; gpwF ehnd mile;J bfhs;s ntz;oaJ. 5.2.The recitals in the document would reveal the expectation in the mind of the settlor that he should / would get back the property at any cost.
a)There is an assumption that the first wife would predecease him;
b)He would be alive to enjoy the property, after the death of his wife;
c)This document is being written after the couple lived together for 26 years; the reason stated for the second marriage of the husband is that there were no children born between the first wife and her husband; therefore, when the document recites that the issues to be born to the first wife would get the property, then it is clear that those recitals have been made, when the hope was that there won't be any issues through her.
d)What should be the interpretation to be given to such kind of documents, which were brought into existence with fraudulent intentions. How the law takes care of such situations and brought out appropriate amendments by amending Section 14 of the Hindu Succession Act. Even after this amendment, whether women can be deprived of their right to property, is the issue to be answered.
5.3. According to the terms of settlement deed, the second defendant was to enjoy the property till her lifetime and later on, the property would revert back to Dharmarajpillai, if there are no issues born to the settlee. Contrary to the terms of settlement deed, the second defendant is stated to have sold the property in favour of the first defendant on 22.09.1982. It is the contention of the plaintiffs that a) the sale deed was sham and nominal; b) the second defendant cannot claim any title based upon the same document, referred to above; and c) that the sale will not bind the plaintiffs.
5.4.So far as the second item of the suit property is concerned, Dharmarajpillai executed a settlement deed in favour of the second plaintiff on 01.12.1965. Child was born between them during 1982. After the death of Dharmarajpillai, the second defendant encroached upon the second item of the property also and she appropriated all the movable properties. After the lifetime of the second defendant, the property belonged to the plaintiffs and as such, the second item of the property has to be declared as the property of the second plaintiff. Concedingly, there is no dispute over the second item of the property, despite the above pleadings.
6.The defendants filed separate written statements. The second defendant, (who is the first wife) did not make any claim over the second item of suit property.
6.1.So far as the first item is concerned, it is her contention that she is the absolute owner, as per the settlement deed, executed by her husband and the property was sold for absolute necessity and therefore, the sale is valid. So far as the purchaser / first defendant is concerned, it is his contention that he is the bona fide purchaser for value and he has derived title from an absolute owner and therefore, his title cannot be challenged. The purchaser also did not make any claim over the second item of the suit property.
6.2. There are two interpretations in respect of the recitals in the settlement deed executed by Dharmarajpillai in favour of his first wife. The interpretation placed by the second wife is that under the settlement deed, the first wife was given only a life estate and after her lifetime, it would revert back to the settlor. But, the contention of the first wife was that, what was given under the settlement deed was the absolute estate, as per Section 14 of the Hindu Succession Act and as such, her right to alienate the property cannot be questioned by the second wife. The trial Court accepted the contentions of the second wife and decreed the suit.
7. When the appeal was filed by the purchaser (from the first wife) in A.S.No.213 of 1986 before the District Court, Cuddalore, the appeal was allowed. Section 21 of the Transfer of Property Act, which deals with contingent interest, was relied upon and the section reads as under:
21. Contingent interest.Where, on a transfer of property, an interest therein is created in favour of a person to take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property. Such interest becomes a vested interest, in the former case, on the happening of the event, in the latter, when the happening of the event becomes impossible. 7.1.Applying the principle adumbrated in Section 21, referred above, it was observed that the death of Dharmarajpillai, i.e., her husband) could not be anticipated and no time limit also can be prescribed and as Dharmarajpillai died even before the death of the second defendant, the contingent interest, i.e., the contingency of property being given to the settlee, would not arise and therefore, the second defendant alone was entitled to the property. In other words, it was held that as the contingent interest failed to take effect, Swarnathammal was held entitled to an absolute interest in the property. Challenging this finding, the second appeal has been filed by Jayalakshmiammal, the second wife of Dharmarajpillai. Therefore, the second appeal is between the purchaser of the property from the first wife of Dharmarajpillai and the second wife of Dharmarajpillai.
8.Before delving into the merits of the appeal, as the issue of maintainability of the second appeal is raised, it has to be decided first.
8.1.The contention of the learned counsel for the respondent / first defendant is that there is no substantial question of law involved in this second appeal and therefore, the second appeal itself is not maintainable. Perusal of records reveals that the only substantial question of law formulated at the time of admission was, Whether on the facts and circumstances of the case, the lower appellate Court is correct in dismissing the suit with reference to the suit item No.1, which is the subject matter of settlement under Ex.A-2 under which the property is to revert to the settlor and what is given is only a right of enjoyment to the settlee with no right of alienation ? The question framed as such would involve interpretation of the recitals made under Ex.A2, settlement deed. While interpreting the terms of Ex.A2, the Court may have to invoke the provisions of several enactments like, Hindu Succession Act, Transfer of Property Act, etc. But, no question of law has been framed invoking the applicability or otherwise of Section 14 of the Hindu Succession Act, to the facts of this case. But, just because it is not framed at the time of admission, it does not mean that it cannot be framed at a later stage.
8.3.The learned counsel for the appellant / 2nd plaintiff relied upon the decision reported in AIR 2005 Calcutta 118 (Smt.Renuprova Paul vs. Sannyasi Charan Ghosh and Ors.), to support the proposition that, even if substantial question of law is not framed at the time of admission of appeal, it can be framed at the time of hearing also.
8.4.The learned counsel for the appellant also relied upon the decision reported in AIR 2001 SC 965 (Santosh Hazari vs. Purushottam Tiwari (Dead) by Lrs.), where-under the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis has been pointed out. In the same decision, it has been held that, it would depend upon facts and circumstances of each case to come to a conclusion as to whether a question of law is a substantial one or not. This contention is perfectly right and this Court holds that the issues raised in the second appeal are substantial questions of law having regard to the facts and circumstances of this case, which would be evident in the following discussions. Therefore, the contention regarding non-maintainability of second appeal is rejected.
9. Now, the next issue to be considered is, whether Swarnathammal, the first wife of Dharmarajpillai / second defendant, had absolute interest over the first item of the suit property, even though only a restrictive interest is alleged to have been conveyed under Ex.A2, settlement deed. In other words, what is the legitimate construction to be placed upon the recitals under Ex.A2.
9.1. It is the contention of the learned counsel for the appellant / second plaintiff that as per the disposition given in Ex.A-2, Swarnathammal is only entitled to the right of enjoyment of suit item No.1 and after her lifetime, the property has to revert back to the settlor, in case, she had no issues. The recitals in Ex.A2 and the interpretation to be placed upon the recitals would decide the fate of the second appeal.
9.2. The learned counsel for the appellant / second plaintiff would contend that Section 14 (2) of the Hindu Succession Act, would not apply to the facts of this case and the restricted interest said to have been conveyed under Ex.A2 would not enlarge into absolute estate in terms of Section 14 (2) of the Hindu Succession Act. It is further pointed out that there are no pleadings at all with reference to the right to maintenance and therefore, in the absence of pleadings and evidence, the settlee will not have absolute interest.
9.3. Learned counsel for the appellant contended that in the absence of pleadings that the limited estate given to the settlee blossomed into an absolute estate, in view of the non-establishment of circumstances under Section 14 of the Act, the respondents cannot claim absolute interest and in support of the proposition, the following four decisions are relied upon:-
(i) 2002-3-L.W.720 (K.Narasimhan (decd.) and Others v. K.Rajagopal).
13. ... whether the Courts below are correct in coming to the conclusion that Rukmani Ammal's right has been enlarged under Section 14(1) of the Hindu Succession Act 1956 and thereby she became absolute owner of the property. Unfortunately, no such plea was raised and no issue was framed to that effect. In spite of that the courts below have dealt with the same and found that the life interest of Rukmani Ammal had enlarged and thereby she became absolute owner of the property. Such a finding cannot be sustained for want of pleading and evidence. (emphasis supplied)
(ii) AIR 2003 SUPREME COURT 160 (Gulabrao Balwantrao Shinde and others vs. Chhabubai Balwantrao Shinde and others ) We agree with the plea raised by the counsel for the appellants that in the absence of any pleadings to the effect that Balwantrao Shinde had given the properties to Chhabubai by way of maintenance and in the absence of any evidence to that effect, the finding that the properties were given in lieu of maintenance to Chhabubai which right could be enlarged into full ownership right could not be recorded. The High Court was clearly fell in error in recording a finding to the effect that Chhabubai had become absolute owner of the properties left by Balwantrao Shinde. Another factor which persuades us to take this view is that the properties were ancestral hands of Balwantrao Shinde in which plaintiff No. 1 had a right by birth. The entire property therefore could not have been given to Chhabubai by way of maintenance.
(iii) 2008 (12) Supreme Court Cases 392 (G.Rama vs. T.G.Seshagiri Rao (dead) by Lrs.) 16. .. No specific issue regarding the nature of the property was framed. There was no issue relating to Section 14(1) of the Act and there was also no evidence led in that regard.
(iv) AIR 2008 Kerala 112 (M.P.Lathika and Ors. vs. Jayasree Sivanand and Ors.) The properties in question were not gifted in lieu of maintenance or arrears of maintenance. There is no pleading or proof to that effect. Ext.A1 gift deed also does not indicate that it was executed in lieu of maintenance or arrears of maintenance. 9.4. The decisions, cited supra, are distinguishable on facts. The object of pleading is to give fair notice to the other side as to the nature of case, the other side has to meet. The facts alleged in this case are admitted facts. The facts pleaded do not require any evidence to prove the same. In fact, the recitals in Ex.A2 settlement deed itself indicate that the settlement deed has been executed in lieu of maintenance. It was held in the decisions reported in AIR 1978 Madras 192 (V.Bapu Kalingarayar vs. Rajam) and AIR 1978 Madras 21 (Chellammal and another vs. Valliammal), that when a plea raised is a new plea, but the point involved is a pure question of law, even though it is not raised in the written statement, it could be entertained, when the record is sufficient for decision making. In this case also, even though the question of law now raised is not raised in the written statement, it could be entertained as the records are sufficient for decision making.
9.5. Admittedly, in this case, the first wife and her husband were living together for 26 years. On the date, when she was alleged to have given consent for the second marriage, the property has been settled in her favour. The recitals in the document reads that as desired by the wife, the husband wanted to lend support to her and that is why, property is settled in her favour. Admittedly, within two weeks thereafter, the second marriage had taken place and the husband had executed a settlement deed in favour of his second wife also. When the first wife was compelled to part with her partner relinquishing her valuable right to companionship and when there is a proof to show that the husband has chosen to leave the company of his first wife on the ground that there are no children, then naturally the act of the husband would amount to cruelty and therefore, execution of settlement in favour of the first wife is towards her pre-existing right to maintenance. It is specifically stated in the document that the husband executed the settlement only towards providing support to her.
9.6.It is contended by the learned counsel for the appellant that the first wife gave consent for the second marriage and therefore, the act of the husband would not amount to cruelty. First of all, the so-called consent deed is not available for perusal and interpretation. When the records were called for, it has been replied that records have been already destroyed. When the second appeal is pending from the year 1993, it is not known how during the pendency of the appeal before the higher forum, those documents came to be destroyed. However, the records being destroyed or the records getting themselves destroyed has been the malady in many cases and the Courts are deprived of the opportunity to peruse the document. However, the trial Court in paragraph 7 of the judgment has observed that there was no male issue between the first wife and the deceased Dharmarajpillai and that is why the consent letter was executed by the first wife. There is no evidence to show that the infertility was on account of the biological incapacity to procreate on the part of the first wife. It is a myth that the cause of infertility is always believed to be on the part of the women alone, but it is not so. The American Society for Reproductive Medicine (ASRM) lists out the following causes as contributing factors for fertility:
Production of healthy sperm by the man.
Production of healthy eggs by the woman.
Unblocked fallopian tubes that allow the sperm to reach the egg.
The sperm's ability to fertilize the egg.
The ability of the fertilized egg to become implanted in the uterus.
Adequate embryo quality.
9.7.It has been pointed out that the fertility requires well-being of both man and woman. The women have to remain helpless because of humiliation from her better-half, her own in-laws and her own relatives. Under such circumstances, the consent said to have been given after 26 years of marital life could not have been a voluntary consent and even if it so, it is an invalid consent.
9.8.Even otherwise, the circumstances under which document has been executed would show that the property has been conferred upon her only towards her pre-existing right towards maintenance. The second plaintiff cannot deny knowledge, being the close associate of her husband and she, being his second wife. Therefore, want of pleadings and want of evidence cannot be the defence for the second wife to contend that the plea regarding right to maintenance is a new one. Therefore, those decisions will not apply to the facts of this case. The recitals in the document itself supports the contention of the purchaser, that it was executed towards the right of the first wife towards maintenance. What is stated in Ex.A2 (a copy of Ex.A2 has been filed in the typed set of papers) is that eP vdJ kidtpahdjhYk; vdf;F cd;nkYs;s gphpaj;jhYk; cdJ tpUg;gg;go cdf;F Mjut[ bra;J itf;f ntz;Lbkd;w vz;zj;jhy; vdf;F ghj;jpakhd ,jdoapy; fz;l U:/1000 xU Mapuk; kjpg;g[s;s tPl;il me;j brl;oy;bkz;l; thapyhf cdf;F bfhLf;fpnwd;/ 9.9. So far as this case is concerned, the available facts themselves are sufficient to come to a conclusion as to whether the properties could have been given in lieu of her right to maintenance or not.
10.What are the circumstances under which such a settlement deed was executed would throw some light on the principle to be adopted in interpretating Ex.A2, settlement deed, in the light of Section 14 of Hindu Succession Act.
10.1.It would be appropriate to refer the provisions of Section 14:
14. Property of a female Hindu to be her absolute Property.-
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.- In this 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 arrears of maintenance, or by gift from any person, whether a relative or note, 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. 10.2.The principle and the purpose of interpretation has been explained in several decisions.
If it is the duty of the Court to make endeavour to give full effect to legislative and constitutional vision of socio-economic equality to female citizens by granting full ownership of property to a Hindu female, as contemplated under Section 14 of the Hindu Succession Act, 1956 (hereinafter referred to as the Act), what should be the interpretation to be placed in respect of the recitals under Ex.A2 ?
If the function of law is for social development, what is the type of construction to be adopted while interpreting the terms of the settlement deed.
10.3. To interpret a particular law or a particular provision of law, four things, as are described hereunder, are to be discerned and considered, as per the decision reported in AIR 2010 Kant 124, (Pushpalatha N.V. vs. V.Padma and others) :
(a) What was the law before the amendment?
(b) What was the mischief and defect for which the earlier law did not provide for?
(c) What is the remedy the parliament intended by amending the law?
(d) The true reason for such remedy?
10.4. The law of Property of a Hindu female is marked by vicissitudes starting from the Vedic society when female enjoyed equal status economically and wife enjoyed equal rights in husbands house (Sir Gooroodas bannerjee in Marriage and Stridhana, remarks, nowhere were proprietary rights of women recognized so early as in India; and in very few ancient systems of law have these rights been so largely conceded as in our own. P.V. Kane has quoted some passages form the Vedas which support the view that women owned property in those times, Kane HDS, Vol. III (1968). Ch. XXX.) to a very inferior position when Manu declared: a wife, son and a slave are declared to have no property and if they happened to acquire it would belong to male under whom they are in protection (Supra) - source 'shodhganga.inflibnet.ac.in'.
The earliest legislation bringing females into the scheme of inheritance is the Hindu Law of Inheritance Act, 1929. This Act, conferred inheritance rights on three female heirs i.e. son's daughter, daughter's daughter and sister (thereby creating a limited restriction on the rule of survivorship). Another landmark legislation conferring ownership rights on woman was the Hindu Women's Right to Property Act (XVIII of ) 1937. This Act brought about revolutionary changes in the Hindu Law of all schools, and brought changes not only in the law of coparcenary but also in the law of partition, alienation of property, inheritance and adoption. The Act of 1937 enabled the widow to succeed along with the son and to take a share equal to that of the son. But, the widow did not become a coparcener even though she possessed a right akin to a coparcenary interest in the property and was a member of the joint family. The widow was entitled only to a limited estate in the property of the deceased with a right to claim partition. A daughter had virtually no inheritance rights.
10.5. The framers of the Indian Constitution took note of the adverse and discriminatory position of women in society and took special care to ensure that the State took positive steps to give her equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of India, thus not only inhibit discrimination against women but in appropriate circumstances provided a free hand to the State to provide protective discrimination in favour of women. These provisions are part of the Fundamental Rights guaranteed by the Constitution. Part IV of the Constitution contains the Directive Principles which are no less fundamental in the governance of the State and inter-alia also provide that the State shall endeavour to ensure equality between man and woman.
10.6. As remarked by Dua, J. in the case of Central Railway Workshop, Jhansi vs. Viswanath, AIR 1970 SC 488, even though all legislations in a welfare State is enacted with the object of promoting general welfare, certain type of enactments are more responsive to some urgent social demand and also have more immediate and visible impact on social vices by operating more directly to achieve social reforms. The amendment to Section 14 of Hindu Succession Act was also brought into effect the social reform (of equality) by ameliorating the conditions of certain class of persons, who according to present day notions, may not have been fairly treated in the past. Remedial statutes should always receive liberal construction.
10.7. Social justice demands that a woman should be treated equally both in the economic and the social sphere. The exclusion of woman from participating in coparcenary property ownership merely by reason of their sex was sought to be corrected by the 1956 Amendment. Improving their economic condition and social status by giving equal rights by birth is a long felt social need.
10.8. Article 13(2) of the Constitution of India declares that the State shall not make any law which takes away or abridges the rights conferred by this part (fundamental right) and any law made in contravention of the said clause, shall to the extent of the contravention, be void. It took decades together to realise this inequality and restore equality. It is in this background the Parliament, took note of the events for the last 50 years after the enactment, various pronouncements of the Apex Court (while interpreting Articles 14, 15 and 16) and the attempts made by successive Governments to eradicate gender bias and came up with the Hindu Succession (Amendment) Act, 1956. That is the purpose of this amendment.
10.9. It would be befitting to refer the decision rendered in Thota Sesharathamma and another vs. Thota Manikyamma (dead) by Lrs., (1991) 4 SCC 312, where the Hon'ble Supreme Court has recognised the fight for the right of full ownership in the context of Art.15(3) of the Constitution of India and interpreted Section 14 of the Hindu Succession Act, as follows:
Section 14(1) of the Act declares that any property, movable or immovable, possessed by a female Hindu shall be held by her as full owner thereof and not as a limited owner irrespective of the time when the acquisition was made, i.e., whether it was before or after the Act. Undoubtedly as contended by Sri Krishna Murty Iyer, a Hindu male has freedom of testamentary disposition of his property or by con- tract and s. 14(1) stand an impediment in his way. Freedom of contract would yield place to public policy envisaged above. Its effect must be tested on the envil of socio- economic justice, equality of status and to oversee whether it would subserve the constitutional animation or frustrates. Art. 15(3) relieves from the rigour of Art. 15(1) and charges the State to make special provision to accord to-women socio-economic equality. The court would, therefore, endeavour to find whether terms of the disposition or clauses in the instruments, will etc.. enumerated in s. 14 would permeate the aforestated constitutional conscience to relieve the Hindu female from the Shastric bondage of limit- ed estate. Both sub-sections (1) and (2) of s. 14 attract the conferment of restricted estate had by a Hindu female under an instrument, i.e. gift, will, decree or order of a Civil Court or an award. Section 14 and the impugned docu- ment must be read harmoniously as an integral scheme. The disability attached to Hindu female by Shastric Law was removed by statutory provisions in Hindu Succession Act. Section 14(1) thereof was thought to be a tool to remove disabilities or restrictions imposed by Customary or Shas- tric Law on Hindu women. s. 14(1) declares in unequivocal terms that the property whether movable or immovable held by a Hindu female acquired either before or after the Act shall be her absolute property, abolishing the limited estate known to Shastric law. Hindu women as a class are declared as class I heirs entitling to intestate succession to a Hindu Male. This Court in Pratap Singh v. Union of India, [1985] Suppl. 2 SCR 773 held that s. 14 of the Act does not discriminate on grounds of sex and is intra vires of Art. 15(3). The preferential treatment accorded, thereby, was held to be not .violative of Arts. 14 and 15(1). Sub-section (2) of s. 14 of the Act attempts to denude the object of sub-section (1) and emasculates its efficacy. It should, therefore, be' read as an exception or a proviso to sub-section (1) of s. 14. The interpretation of the proviso or an exception should not be to allow to eat away the vital veins of full ownership accorded by sub-section (1) of s. 14 when this Court upheld the validity of s. 14(1) on the envil of Art. 15(3) what should be the message thus intended to convey? It would mean that the court would endeavour to give full effect to legislative and constitutional vision of socio-economic equality to female 'citizen by granting full ownership of property to a Hindu female. As a fact Art. 15(3) as a fore runner to common code does animate 'to' make law to accord socio- economic equality to every female citizen of India, irrespective of religion, race cast or region.
10.10. The Apex Court in the case of Mahadfolal Kanodia v. Administrator General of West Bengal reported in MANU/SC/0294/1960 : AIR 1960 SC 936, has laid down the principles to be applied as under:
1) The intention of the legislature has to be gathered from the words used by it, giving them their plain, normal grammatical meaning.
(2) If any provision of a legislation, the purpose of which is to benefit a particular class of persons is ambiguous so that it is capable of two meanings, the meaning which preserves the benefits should be adopted. Otherwise, it may lead or expose the provision to the vice of unconstitutionality.
(3) If the strict grammatical interpretation gives rise to an absurdity or inconsistency, such interpretation should be discarded and an interpretation which will give effect to the purpose will be put on the words, if necessary, even by modification of the language used.
10.11. The Law Commission of India in its 174th Report on Property Rights of Women: Proposed Reforms under the Hindu Law in May 2000 mentioned in the introduction itself that, Discrimination against women is so pervasive that it sometimes surfaces on a bare perusal of the law made by the legislature itself. This is particularly so in relation to laws governing the inheritance/succession of property amongst the members of a Joint Hindu family. It seems that this discrimination is so deep and systematic that it has placed women at the receiving end. Recognizing this the Law Commission in pursuance of its terms of reference, which, interalia, oblige and empower it to make recommendations for the removal of anomalies, ambiguities and inequalities in the law, decided to undertake a study of certain provisions regarding the property rights of Hindu women under the Hindu Succession Act, 1956. The study is aimed at suggesting changes to this Act so that women get an equal share in the ancestral property. 10.12. The property rights of women under the Hindu law can be considered under four stages i.e., pre-1937, 1937-1956, 1956-2005 and post-2005.
10.13. In theory, in the ancient times, the woman could hold property but in practice, in comparison to mens holding, her right to dispose of the property was qualified, the latter considered by the patriarchal set up as necessary, lest she became too-independent and neglect her marital duties and the management of household affairs. This was the situation prior to 1937 when there was no codified law. The Hindu Womens Right to Property Act, 1937 was one of the most important enactments that brought about changes to give better rights to women. The said Act was the outcome of discontent expressed by a sizeable section of society against the unsatisfactory affairs of the womens rights to property. Even the said Act did not give an absolute right to women. Under the said Act a widow was entitled to a limited interest over the property of her husband what was to be termed as Hindu widows estate. The Act was amended in 1938 to exclude the widow from any inheriting any interest in agricultural land.
10.14. The Hindu Succession Act, 1956 introduced many reforms and it abolished completely the essential principle that runs through the estate inherited by a female heir, that she takes only a limited estate. The Supreme Court put a lot of controversy at rest by holding that the woman becomes the absolute owner under Section-14 of the Hindu Succession Act, 1956. The object of Section 14 is two-fold : (1) to remove the disability of a female to acquire and hold property as an absolute owner and (2) to convert the right of woman in any estate held by her as a limited owner into an absolute owner. The provision was retrospective in the sense that it enlarged the limit of the estate into an absolute one even if the property was inherited or held by the woman as a limited owner before the Act came into force. Any property acquired under the 1937 Act held in capacity of a limited owner was now converted to her absolute estate.
10.15.The Hindu Succession Act, 1956 abrogates all the rules of the law of succession hitherto applicable to Hindus whether by virtue of any text or rule of Hindu law or any custom or usage having the force of laws in respect of all matters dealt within the Act. Therefore, no woman can be denied property rights on the basis of any custom, usage or text and the said Act reformed the personal law and gave woman greater property rights. The daughters were also granted property rights in their fathers estate.
11. When such was the intention of the legislature, what is the duty of judicature, is the next issue. The duty of judicature is to act upon the true intention of the legislature the mens or sententia legis. The expression ' intention of the legislature ' is a shorthand reference to the meaning of the words used by the legislature objectively determined with the guidance furnished by the accepted principles of interpretation - R. vs. Secretary of State for the Environment exparte Spath Holme (2001) 1 All ER 195.
11.1. But, the task is often not an easy one and the difficulties arise because of various reasons. Words in any language are not scientific symbols / mathematical equations having any precise or definite meaning and the language is but an imperfect medium to convey ones thought, much less of a large assembly consisting of persons of various shades of opinion. It is impossible for the most imaginative legislature to forestall exhaustively situations and circumstances that may emerge after enacting a statute where its applications may be called for. The function of a Court is only to expound and not to legislate.
11.2. The Hon'ble Supreme Court in the case of Municipal Corporation, Delhi, vs. Mohammed Yasim, (1983) 3 SCC 229, expressed the view that words and phrases take colour and character from the context and the times and speak differently in different context and times. 11.3. Legislation in modern state is actuated with some policy to curb some public evil or to effectuate some public benefit.
11.4. Lord Frankfurter, in the essay on Some reflections on the reading of statutes said, Legislation has an aim, it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of government. That aim, that policy is not drawn, like nitrogen, out of the air, it is evidenced in the language of the statute, as read in the light of other external manifestations of purpose.
11.5. The following are the observations of Lord Bingham in Regina v. Secretary for State for Health, (2003) 2 All ER 113, at page 118 (HL) :
Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish or effect some improvement in the national life. The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole and the statute as a whole should be read in the historical context of the situation which led to its enactment. 11.6.Therefore, it is imperative that it is the duty of the Court to read the controversial provision, not only in the context of the statute as a whole, but also the statute as a whole should be read in the historical context of the situations which led to its enactment. If one has to look into the historical context of the situation which led to its enactment, history would reveal that it took centuries together for the women to establish their right to property, as discussed above.
11.7. In interpreting a legislation regulating the relation between the weaker and stronger contracting parties, K.Iyer, J. advised: Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him. (Sant Ram vs. Rajinderlal, AIR 1978 SC 1601 :: 1979 (2) Scc 2784). Similar approach, with due regard to Part III (Art. 16(4) and Part (IV) (Art.46) of the Constitution, is advocated in interpreting executive directions making reservations and relaxations in favour of members of the scheduled castes and the scheduled tribes. (Comptroller and Auditor-General of India vs. K.S.Jagannathan, (1986) 2 SCC 679 :: AIR 1987 SC 537). In case of a social benefit oriented legislation like the Consumer Protection Act, 1986 the provisions of the Act have to be construed as broadly as possible (State of Karnataka vs. Vishwabharathi House Building Co-op. Society, (2003) 2 SCC 412) in favour of the consumer to achieve the purpose of the enactment but without doing violence to the language (Lucknow Development Authority vs. M.K.Gupta, AIR 1994 SC 787). Equitable considerations may find an important place in the construction of beneficent provisions particularly in the field of criminal law (Bhagirath vs Delhi Administration, (1985) 2 SCC 580) and procedural provisions in civil law (Union Bank of India vs. Khader International Construction, AIR 2001 SC 2277).
12.Now, it is necessary to look into the object of Section 14. The following are the principles that emerges on the object of Section 14:
1.that the provisions of Section 14 of the 1956 Act must be liberally construed in order to advance the object of the Act which is to enlarge the limited interest possessed by a Hindu widow which was in consonance with the changing temper of the times;
2.that sub-section (2) of Section 14 does not refer to any transfer which merely recognizes a pre-existing right without creating or conferring a new title on the widow;
3.That the Act of 1956 has made revolunationary and far-reaching changes in the Hindu society and every attempt should be made to carry out the spirit of the Act which has undoubtedly supplied a long felt need and tried to do away with the individual distinction between a Hindu male and female in matters of intestate succession;
4.that sub-section (2) of Section 14 is merely a proviso to sub-section (1) of Section 14 and has to be interpreted as a proviso and not in a manner so as to destroy the effect of the main provision.
13.Now, coming to the facts of the case, the very fact that husband has chosen to transfer his affection to another woman after 26 years of sharing his affection with first wife, i.e., taking a second wife during the subsistence of first marriage, is certainly a matrimonial injury and cruelty to the first wife. It is a recognised ground for the first wife to seek maintenance and even divorce. The conferment of property will not and cannot lessen her distress or her feelings of neglect. Another woman intruding into her matrimonial life and taking her place in the matrimonial bed is not a tolerable pain and the alleged consent which is not proved to be voluntary and valid, will not exonerate her husband from paying maintenance. Even assuming that consent is voluntary, there cannot be a consent for performing an illegal act, as bigamy is a punishable offence under the Indian Penal Code. It is not the case of the husband that he obtained divorce from Court of law. Husband has no right to compel the first wife to share the matrimonial home with the co-wife. The conferment of property with limited right to enjoy (alone) can only offer a solace to a minimum extent that the woman need not beg for food. In other respects, her right cannot be said to have received any protection. Under such circumstances, if the interpretation that the woman will get only limited right is given, it would amount to encouraging more men to create broken families and to promote illegal activities, which is not conducive for an orderly society. If the aim of the Constitution is to ensure equality and dignity to women, and if gender bias is to be eliminated, then the purposive interpretation would be that the woman would get absolute right under the transaction. Any other interpretation would take the women and in turn the whole society from e-age to stone-age.
14. Contending that the apparent absolute estate in favour of the settlee has to be cut down to a limited estate, in view of the stipulation that the settlee should enjoy the property, (without any power of alienation), the following decisions are relied upon by the appellant:-
(i) AIR 2006 SUPREME COURT 3282 (Sadhu Singh vs. Gurdwara Sahib Narike and Ors) is relied upon, wherein, in paragraph 20, it has been held as follows:-
20...we find that the apparent absolute estate given to his wife by the testator is sought to be cut down by the stipulations that the property must go to his nephews after the death of the wife, that the wife cannot testamentarily dispose of the property in favour of any one else and the further interdict in the note that the wife during her life time would not be entitled to mortgage or sell the properties. Thus on reconciling the various clauses in the will and the destination for the properties that the testator had in mind, we have no hesitation in coming to the conclusion that the apparent absolute estate in favour of Isher Kaur has to be cut down to a life estate so as to accommodate the estate conferred on the nephews.
(ii) 2012-1-L.W.917 (Jagan Singh (Dead) through Lrs v. Dhanwati & Anr.
11. The issue raised in this Civil Appeal is no-longer res-intigra. In Navneet Lal Vs Gokul and others reported in 1976 (1) SCC 630, a bench of three judges of this court was concerned with an almost identical situation, wherein a life estate was created by the testator in favour of his wife. After going through the will, this Court held that it was permissible for the testator to create a limited estate in favour of his wife by making a will. Later, in Amar Singh Vs. Assistant Director of Consolidation reported in 1988 (4) SCC 143, this Court in terms held in paragraph 5 as follows:-
The right of a bhumidhar with transferable rights to bequeath his holding or any part thereof by a will is expressly recognised by Section 169 (1) of the Act.
(iii) 2013 (2) CTC 587 (Shivdev Kaur (D) by Lrs. & Others vs. R.S.Grewal....) 13. Thus, in view of the above, the law on the issue can be summarised to the effect that if a Hindu female has been given only a life interest, through Will or gift or any other document referred to in Section 14 of the Act 1956, the said rights would not stand crystallised into the absolute ownership as interpreting the provisions to the effect that she would acquire absolute ownership/title into the property by virtue of the provisions of Section 14(1) of the Act 1956, the provisions of Sections 14(2) and 30 of the Act 1956 would become otios. Section 14(2) carves out an exception to rule provided in sub- section (1) thereof, which clearly provides that if a property has been acquired by a Hindu female by a Will or gift, giving her only a life interest, it would remain the same even after commencement of the Act 1956, and such a Hindu female cannot acquire absolute title.
(iv) 1994 (2) SCC 111 (Bhura and Others v. Kashi Ram).
6. ... The bequeath in favour of Sarjabai (as extracted above) clearly speaks of the testator's intention of only creating a life interest in her and nothing more and the various expressions used therein are indicative of and are reconcilable only with the hypothesis that the testator was creating an estate in favour of Sarjabai only for her lifetime and not an absolute estate. We, therefore, agree with the High Court that under the will Sarjabai did not get more than a lifetime estate because the language of the will is inconsistent with her having got an absolute right over the land.
7.The limited estate conferred upon Sarjabai by the will (WP-4) could not even be enlarged into an absolute estate under the Hindu Succession Act, 1956, even though she was possessed of that property at the time of the coming into force of the Hindu Succession Act, 1956. Section 14(2) of the Act mandates that nothing contained in sub-section (1) of Section 14 of the Hindu Succession Act, 1956 shall apply to any property acquired by way of gift or under a will or by any other instrument prescribing a restricted right in such property. In view of our finding that the will (Ex. P-4) itself prescribed a restricted right of life-estate in the property in favour of Sarjabai, that estate could not be enlarged into an absolute estate in view of the express provisions of the Hindu Succession Act, 1956. 14.1.The decisions relied upon by the learned counsel for the appellant are distinguishable on facts and are not applicable to the facts of this case.
15. The learned counsel for the respondent submitted that when the property is settled towards satisfaction of the pre-existing right to maintenance, the limited estate enlarges into absolute estate and when the settlee is entitled to absolute estate, the alienation made by the alienee in favour of first defendant is valid and therefore, the second appeal has to be dismissed.
15.1.In support of this proposition, the following decisions are relied upon:-
(i) (2005) 5 SCC 390 (FB) (Shakuntala Devi vs. Kamla ) The editorial note with regard to interpretation placed on Section 14(1) and 14(2) of Hindu Succession Act, 1956, in V.Tulsamma & Ors. vs. V.Sesha Reddi (Dead) (1977) 2 SCC 732, has been referred in the above case and it reads thus:
.... The ambit of Section 14(2) of the Hindu Succession Act, 1956, must be confined to cases where property is acquired by a female Hindu for the first time. as a grant without any pre-existing right under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. ... Where, however, property is acquired by a Hindu female at a partition or in lieu of her right to maintenance it is in virtue of a pre-existing right and such acquisition would not be within the scope and ambit of sub-s.(2) even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property. Thus, even though in the present case, U had inherited the limited interest in question under the Will of her husband, since it was the bequethed for her maintenance, it was a pre-existing right and therefore did not fall within the ambit of Section 14(2), and hence was enlarged to an absolute right by virtue of Section 14(1).
(ii) AIR 2001 SUPREME COURT 3062 (Palchuri Henumayamma vs. Tadikamalla Kotlingam (D) by Lrs and Others) Thus, it is clear from the recitals that though the testator has not used the words in lieu of maintenance, he has certainly intended that the properties settled under the Will were left for the enjoyment of Ramamma during her life-time towards her maintenance. The fact that Ramamma was made a guardian of the minors would not in any manner deviate from the fact that the property under the Will was given to Ramamma for her enjoyment in lieu of her maintenance.
(iii) 2008 (1) SCC 465 (Santhosh vs. Saraswathibai) Quoting the decision of the Supreme Court reported in Nazar Singh and Others vs. Jagjit Kaur and Others, (1996) 1 SCC 35 and following V.Tulasamma's case (supra), the Supreme Court held as under :-
.... According to Sub-section (1), where any property is given to a female Hindu in lieu of her maintenance before the commencement of the Hindu Succession Act, such property becomes the absolute property of such female Hindu on the commencement of the Act provided the said property was "possessed" by her. Where, however, the property is given to a female Hindu towards her maintenance after the commencement of the Act, she becomes the absolute owner thereof the moment she is placed in possession of the said property (unless, of course, she is already in possession) notwithstanding the limitations and restrictions contained in the instrument, grant or award whereunder the property is given to her. This proposition follows from the words in Sub-section (1), which insofar as is relevant read : "Any property possessed by a female Hindu....after the commencement of this Act shall be held by her as full owner and not as a limited owner". In other words, though the instrument, grant, award or deed creates a limited estate or a restricted estate, as the case may be, it stands transformed into an absolute estate provided such property is given to a female Hindu in lieu of maintenance and is placed in her possession.
(iv) 2014-1-L.W.7 (K.Karai Gowder (died) & Others vs. G. Siddan & Others)
41. Therefore, from the above judgments, it is seen that the Hon'ble Supreme Court has laid down a principle that the husband is duty-bound to maintain his wife, irrespective of possession of any joint family property, or, separate property, and, maintenance of a wife by the husband is a matter of personal obligation, and when property is given to a female hindu, towards her maintenance, and her right of enjoyment over that property is restricted till her lifetime, and when she is possessed of that property on the date of coming into force of the Hindu Succession Act, the limited estate will be enlarged into absolute estate and in that case, Section 14 (1) of the Hindu Succession Act will apply. It is also held that a wife's right to maintenance against her husband, is a preexisting right, and, it does not depend upon the possession of the property by the husband, either self acquired, or, joint family property.
15.1.These decisions would clearly go to show that when the property is given to a female Hindu towards her maintenance after the commencement of the Act, she becomes the absolute owner thereof from the moment, she is placed in possession of the said property, (unless, of course, she is already in possession), despite the limitations and restrictions contained in the instrument, i.e., Ex.A2, settlement deed.
15.2.The express language used in Ex.A2, settlement deed, interpreted in the light of Section 14 of the Hindu Succession Act, would lead to conclusion that what is conferred is only an absolute estate and not a limited estate. Therefore, the second defendant / first wife has got every right to dispose of the property and the sale is valid. Therefore, the first defendant / purchaser has to succeed and the second appeal filed by the second wife / 2nd plaintiff is liable to be dismissed.
16.In the result, the Second Appeal is dismissed. The judgment and decree, dated 08.12.1987, in A.S.No.213 of 1986 on the file of the District Court, Cuddalore, upholding the sale in favour of the first defendant, is confirmed, though for different reasons. The suit in O.S.No.12 of 1984, on the file of the Subordinate Judge, Vridhachalam, dated 04.03.1986, is dismissed, so far as the first item of the suit property is concerned. No costs.
29.04.2014 Index : Yes Internet: Yes sra / srk To
1. The District Court, Cuddalore
2. The Subordinate Court, Vridhachalam S.VIMALA, J., srk / sra Pre-Delivery Judgment in S.A.No.471 of 1993 29.04.2014