Madras High Court
P.Rukmini(Died) vs V.Balasubramaniam(Died) on 16 March, 2020
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
S.A.No.1983 of 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 21.02.2020
Date of Verdict : 16.03.2020
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
S.A.No.1983 of 2002
1.P.Rukmini(died)
2.A.S.Palanisami
3.P.Karunakaran
4.P.Damodaran ...Appellants
(Appellants 2 to 4 brought on record as LR's
of the deceased sole appellant vide order
of court dated 21.10.2019 made in
CMP.No.336 of 2015 in SA.No.1983 of 2002)
Vs.
1.V.Balasubramaniam(died)
2.Sivabagyam
3.B.Sampath Kumar
4.B.Mohanraj
5.R.Subramaniam
6.A.M.Abdul Aziz
(RR2 to 4 are brought on record as
legal representatives of the
deceased sole respondent and
RR5 and 6 are impleaded as party
respondent vide order of court
dated 14.12.2006 made in
CMP.No.17174 of 2005 and
CMP.Nos.9358 & 9359 of 2006) ...Respondents
Prayer :- This Second Appeal is filed under Section 100 of Civil Procedure
Code against the judgment and decree dated 29.08.2001, in A.S.No.45 of
2001 on the file of the II Additional Subordinate Court, Coimbatore,
https://www.mhc.tn.gov.in/judis
1/47
S.A.No.1983 of 2002
confirming the decree and judgment dated 21.11.2000 in O.S.No.2337 of
1996 on the file of the II Additional District Munsif, Coimbatore.
For Appellants : Mr.T.M.Hariharan
For Respondents
R1 : Died (steps taken)
For R2 to R4 : Mr.R.Srinivas
for Mr.S.Sithirai Anandan
For R5 and R6 : Mr.V.Manohar
JUDGMENT
This second appeal is directed as against the judgment and decree dated 29.08.2001, in A.S.No.45 of 2001 on the file of the II Additional Subordinate Court, Coimbatore, confirming the decree and judgment dated 21.11.2000 in O.S.No.2337 of 1996 on the file of the II Additional District Munsif, Coimbatore.
2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.
3. The case of the plaintiff in brief is as follows :-
3.1. The suit is filed for partition and mesne profit. The suit properties and other properties were owned by late Ramasamy Pillai. The plaintiff and the defendant are grand daughter and grand son of the late Ramasamy Pillai. He had one son, Vellingiri Pillai and his wife https://www.mhc.tn.gov.in/judis 2/47 S.A.No.1983 of 2002 Mrs.Kuppammal. Till his death, the properties were jointly enjoyed by the family members. He executed registered Will dated 09.01.1938. According to the said Will, the properties left behind by him have to be enjoyed by the said Kuppammal till her lifetime without any power of alienation and after her lifetime, the properties should go to the heirs of his son, Mr.Vellingiri, namely the plaintiff and the defendant herein. The said Ramasamy Pillai bequeathed the properties in favour of his wife Kuppammal for her enjoyment till her life time in lieu of maintenance and he died in the year 1938. After his demise, the properties were jointly enjoyed by the family members. While being so, the said Kuppammal also died in the year 1975. After the demise of her son Vellingiri, the defendant turned hostile towards the plaintiff and he is trying to appropriate the entire suit property without providing half share to the plaintiff. Therefore, she caused lawyer notice dated 13.06.1996 call upon the defendant to agree for amicable partition of the suit property. Hence, the suit.
4. Resisting the same, the defendant filed written statement stating that the entire contentions and averments made in the plaint are denied as false, frivolous and vexatious. It is true that the suit property originally belonged to Ramasamy Pillai and he was married to Kuppammal. They had one son, by name Vellingiri. But the said Vellingiri was not leading a https://www.mhc.tn.gov.in/judis 3/47 S.A.No.1983 of 2002 responsible life and he was wayward and extravagant. The plaintiff and the defendant are his son and daughter. Therefore, the said Ramasamy Pillai to safeguard his properties, executed a Will dated 09.01.1938 and it was registered one. He never intended to give any life estate to his wife or any absolute right. No such recital is there in the Will and in fact, he intended and desired to give the properties to the heirs of his son, and till such time the property should be managed by his wife and maintain the family till her life time and after her lifetime, the suit property should be taken by the heirs born to Vellingiri. Therefore, at the time of executing the Will, the law contemplated only male issues and did not include the female issues of a person. Thus, on interpretation the defendant alone became entitled to the suit property on the death of Ramasamy Pillai and Kuppammal. The plaintiff is not a heir as contemplated under the Will and as such she is not entitled to have any share or right in the suit property. Further, he denied that after demise of the said Kuppammal and their father Vellingiri, the suit property was enjoyed by all the members of the family. The plaintiff is living in Udumalpet Taluk along with her husband, and immediately after death of their father Vellingiri Pillai, the plaintiff caused legal notice dated 29.03.1983 and the defendant suitably replied by the reply notice dated 21.04.1993.
Once again, she sent another notice, at the instigation of her husband on 13.06.1996, namely after the period of 3 years from the earlier notice, call https://www.mhc.tn.gov.in/judis 4/47 S.A.No.1983 of 2002 upon the defendant to allot a share of the suit property. The defendant also replied by the reply notice dated 18.06.1996 and as such the plaintiff is not entitled to have any share over the suit property and the entire property absolutely belonged to the defendant. Further the plaintiff is not in possession and enjoyment of the suit property at any point of time and prayed for dismissal of the suit.
5. In support of the plaintiff's case, P.W.1 was examined and twelve documents were marked as Ex.A.1 to Ex.A.12. On the side of the defendant, D.W.1 to D.W.4 were examined and Ex.B.1 to Ex.B.4 were marked. On considering the oral and documentary evidences adduced by the respective parties and the submissions made by the learned counsel, the trial Court dismissed the suit. Aggrieved over the judgment and decree of the trial Court, the plaintiff preferred an appeal suit in A.S.No.45 of 2001 before the II Additional Subordinate Court, Coimbatore. The first appellate Court on appreciating the materials placed on records, dismissed the appeal by confirming the judgment and decree passed by the trial Court. Challenging the same, the plaintiff has come forward with the present second appeal.
6. At the time of admission of the second appeal, the following substantial question of law was framed :-
https://www.mhc.tn.gov.in/judis 5/47 S.A.No.1983 of 2002
a) Whether the word 'varis' in Ex-A1 will not include female heirs of Vellingiri as well and whether the same is restricted only to sons born to Vellingiri?
7.1. The learned counsel for the plaintiff submitted that the suit property originally belonged to one, Ramasamy Pillai and it was a self acquired property. He married Kuppammal and gave birth to his son, Vellingiri. During his life time, he executed a registered Will dated 09.01.1938. In the said Will, the Ramasamy Pillai has given life interest to his wife and only after her life time, the heirs of the Vellingiri should get absolute right over the suit property. In the Will, the said Ramasamy Pillai categorically stated that the suit property after his life time vested to his wife and after her life time it should go to legal heirs of their son, Vellingiri. Though he stated that the account should be maintained for the income derived from the financial transaction with third parties and if there is any strained relationship between herself and his son, he must be given 50% of the income derived from the suit property and that should be accounted properly. Admittedly, his son Vellingiri was not leading a responsible life. He was wayward and extravagant. As such that was borne in mind of Ramasamy Pillai and stated that if there is any strained relationship between his wife and son, 50% of the income derived from the property should be given to him and that should be accounted properly. At the time of execution https://www.mhc.tn.gov.in/judis 6/47 S.A.No.1983 of 2002 of Will, the plaintiff as well as the defendant were not born to the said Vellingiri. Therefore, the recital of the Will are very clear that the property first vested with his wife, namely Kuppammal and after her lifetime it should go to heirs of Vellingiri. Unfortunately both the courts below misconstrued the recital of the Will as it restricting the rights of the Kuppammal only to manage the suit properties and she was not given any life estate during her lifetime.
7.2 He contended that the said Kuppammal had right to maintain herself and her family members from the estate of her husband and as such the Will cannot be construed as an attempt to curtail the legal right vested on the wife. The recitals must be read in a conjugation with the clause prohibiting the alienation by Kuppammal and it seeks to explain life interest granted and does not seek to operate against the life interest. Further only after life time of Kuppammal, the property should go to the legal heirs of the said Vellingiri and as such it has to be construed as a life interest in favour of Kuppammal. Only because she was directed to maintain the accounts, she is not mere manager. If the intention of the attestor was to appoint her only as a manager, he would not have definitely given the absolute vested right till her life time. Therefore, the intention of the attestor is very clear that initially the life estate was given to Kuppammal and only after her life time, the https://www.mhc.tn.gov.in/judis 7/47 S.A.No.1983 of 2002 property should go to the legal heirs of the said Vellingiri. Though the Will has to be interpreted in the contract meaning and law as it then prevailed, the intention of the attestor is very clear that the said Kuppammal was given life estate and categorically mentioned that after life time of Kuppammal, the property should go to heirs of the said Vellaingiri.
7.3 In the year 1938, though heir meant only male, on reading of whole of the Will, the mind of the attestor reads as all the issues of Vellingiri are entitled to have absolute right over the suit property. On either way, the plaintiff is entitled to have half share, namely the said Kuppammal had absolute right over the property after the Hindu Succession Act, 1956 under Section 14(1) of the Act and after her demise, her legal heirs, namely the plaintiff and the defendant are entitled to have half share each in the suit property. On another hand, the mind of the attestor revealed that the heirs of the Vellingiri are entitled to have absolute right to the suit property and as such the plaintiff and the defendant are being the heirs of the said Vellingiri, they are entitled to have their half share.
7.4 He further contended that the recital of the Will is very clear that the said Kuppammal was vested with the right of maintenance and to maintain the family members till her life time. Therefore, in the year 1938, https://www.mhc.tn.gov.in/judis 8/47 S.A.No.1983 of 2002 she had preemptive right under Hindu Women's Rights to Property Act, 1937 and Shastric Law. Therefore, the recitals mean that in lieu of maintenance and as such the said Kuppammal was vested with life interest over the property.
7.5 He further contended that at the time of execution of Will, namely on 09.01.1938, admittedly the plaintiff and the defendant were not born to Vellingiri and as such the Will itself is void as per Section 112 of Indian Succession Act. Further, when the said Kuppammal had preemptive right over the property, the succession opens to her legal heirs after her death. Therefore, the plaintiff as well as the defendant are entitled to have half share in the suit property. The defendant never raised either in his statement or in his evidence about the family trust and the Kuppammal is only a trust since the said Ramasamy Pillai created trust. Therefore, the Kuppammal has no right over the property except to maintain the property with proper accounts. He also relied upon the definition of trust under Section 4 of the Trust Act.
7.6 He further contended that on perusal of Ex.A.1, Kuppammal was given life or limited estate. Therefore, the Will succession opens on the https://www.mhc.tn.gov.in/judis 9/47 S.A.No.1983 of 2002 death of Kuppammal. The last male holder of a property might have actually died years ago leaving behind the widow. The physical death of the last male holder is not taken into account for determining the heirs and the heirs should be decided as the last heirs in the year 1975 and not in the year 1938. Hence, the plaintiff and the defendant are being the legal heirs entitled to have their half share in the suit property.
7.7 Further submitted that in respect of applicability of Section 14 (1) of Hindu Succession Act, the said Kuppammal had a pre-existing right of maintenance under the Sastric Law and Hindu Women's Rights to Property Act which came into force in the year 1937, namely prior to the execution of the Will Ex.A.1. Therefore, she had pre-existing rights and had a limited estate immediately after the death of her husband. During the arguments of the defendant, they raised ground that Ex.A.1 Will creates a family trust and the said Kuppammal is being the trustee cannot claim against the interest of the beneficiaries. There is no whisper about the same in Ex.A.1 Will regarding the creation of any trust and there is no pleadings or evidence or issue or findings in this regard before the courts below. The plea of creation of trust, that too in the second appeal only defeat the rights of said Kuppammal granted under statute and to divest of her property. Therefore, the object of the projected trust is illegal and not at all applicable to the case https://www.mhc.tn.gov.in/judis 10/47 S.A.No.1983 of 2002 on hand.
7.8 He further contended that both the courts concurrently held that the plaintiff is not entitled to have half share in the suit property. However, both the courts failed to consider that the said Kuppammal had preemptive right even in the year 1938 itself and the word 'varisu' mentioned in Ex.A.1 would also include female. Therefore, this Court has ample power under Section 100 of CPC to interfere with the concurrent findings on these substantial questions of law. In support of his contention, the learned counsel appearing for the plaintiff relied upon the following judgments :-
(i) C.Masilamani Mudaliar and Others Vs. Idol of Sri Swaminathaswami Swaminathaswami Thirukoil and Others reported in (1996) 8 SCC 525.
(ii) Maharaja Pillai Lakshmi Ammal Vs. Maharaja Pillai Thillanayakom Pillai and Another reported in (1988) 1 SCC 99.
(iii) Gulwant Kaur and another Vs. Mohinder Singh and Others reported in (1987) 3 SCC 674
(iv) Hero Vinoth (Minor) Vs. Seshammal reported in (2006) 5 SCC 545
(v) Basudeb Dey Sarkar Vs. Chhaya Dey Sarkar https://www.mhc.tn.gov.in/judis 11/47 S.A.No.1983 of 2002 reported in 1991 SCC Online Cal 9 : AIR 1991 Cal 399
(vi) K.Rajeswari & Others Vs. M.V.Shanmugam reported in 2011-4-LW 164
(vii) Beni Bai Vs. Raghubir Prasad reported in (1999) 3 SCC 234
(viii) K.Rajeswari & Others Vs. M.V.Shanmugam reported in 2011-4-LW-164
(ix) Shanmughasundarathammal Vs. Narayana Konar reported in 85 LW 678
(x) Bay Berry Apartments (P) Ltd and another Vs. Shobha and others reported in (2006) 13 SCC 737
(xi) K.Lubna and Others Vs. Beevi and Others reported in 2020 SCC Online SC 26
(xii) V.Tulsamma and Others Vs. Sesha Reddy (dead) by LR's reported in (1977) 3 SCC 99.
8.1 Per contra, the learned counsel appearing for the defendant submitted that both the courts below held concurrently and as such no substantial question of law is involved in this second appeal. He further submitted the suit property is a self acquired property by the said Ramasamy Pillai, and he bequeathed the suit property in favour of heirs of his son Vellingiri by the registered Will dated 09.01.1938. The recitals are very clear https://www.mhc.tn.gov.in/judis 12/47 S.A.No.1983 of 2002 that no vested interest was given to his wife in the year 1938, and heir meant only male issues are heirs and did not include female issues as heirs. Therefore, the defendant alone is entitled to get the suit property on the death of the Ramasamy Pillai and Kuppammal. When the said Kuppammal wife of Ramasamy Pillai was not given any interest over the property, the Section 14(1) of the Hindu Succession Act would not at all apply.
8.2 She was directed to maintain the suit property by proper accounts and the income derived from the suit property can be utilised for maintenance of the family, that too by proper accounts. Further categorically stated that if there is any strained relationship between herself and her son, he must be given half of the income derived from the property with proper accounts. After her life time, the absolute right of the entire property goes to heirs of Vellingiri. Therefore, no right is vested with Kuppammal and in fact, the Ramasamy Pillai created trust to maintain the property, in which the Kuppammal is one of the trustee, therefore she was not vested with any interest except to maintain the property.
8.3 He further submitted that the entire Will and succeeding portions will have to be read as a whole and it would show what was given to Kuppammal was only the right to manage the property and responsibility to https://www.mhc.tn.gov.in/judis 13/47 S.A.No.1983 of 2002 use the income therefrom to protect and maintain the property and responsibility to maintain accounts. Therefore, she was never given any life estate and she had not acquired life estate under the Will Ex.A.1. Even after the Act came into force called Hindu Succession Act, 1956, a Hindu lady who is in possession of a property before 1956 Act and after the commencement will not become an absolute owner if she does not acquire life estate or some vestige of title over the property. Therefore, mere possession of the Will properties and the management did not confer any life estate and the same will not bloom into an absolute title to the said Kuppammal over the suit properties.
8.4 He further submitted that the word 'heirs' used by executant of the Will denotes make issues or sons of Vellingiri. In the year 1938, only sons were heirs under Hindu Law and daughters were not at all heirs. He did not use the word children or issues. Therefore, the word 'varisu' or heir should be interpreted to mean only sons. Further at the time of execution of Will, the said Ramasami Pillai would not have known that daughters will also become heirs in the year 1956 by the Hindu Succession Act.
8.5 He further submitted that in respect of validity of the Will executed in favour of unborn heirs of Vellingiri, the executant Ramasamy https://www.mhc.tn.gov.in/judis 14/47 S.A.No.1983 of 2002 created bequeath for maintenance of his family on his death. Thereafter the property will devolve on the heirs of the Vellingiri on the death of his wife, namely Kuppammal. Therefore, since there is a bequeath taking effect immediately on the death of Ramasamy Pillai and the son of Vellingiri was in existence on the death of Kuppammal in the year 1975, the explanation to Section 112 will apply and the bequeath complies with both sections 112 and 113 of the Transfer of Property Act and as such the Will is valid one.
8.6 He also contended that in respect of new plea raised before this Court that the arrangement of the said Ramasami Pillai created in dedicating his property for maintenance of his family under the control of Kuppammal was a private trust under the management of Kuppammal who was the trustee. Public trust are governed by Indian Trusts Act, 1882, in which the Section 3 explains about the trustee. Therefore, private trust can be created by Will and the Will executed by the Ramasamy Pillai is nothing but trust.
8.7 He finally contended that concurrent finding of fact should not be normally interfered in the second appeal, when there is no perversity, wrong reading of judgment or illegality in the findings. Therefore, this Court should not interfere in the second appeal since the courts below did not commit any illegality or irregularity in their findings. There is no perversity or https://www.mhc.tn.gov.in/judis 15/47 S.A.No.1983 of 2002 misreading of evidence, error of law or interpretation on the part of both the courts below. Therefore, prayed for dismissal of the second appeal. In support of his contention, the learned counsel appearing for the defendant relied upon the following judgments :-
(i) Eramma Vs. Verrupanna and others reported in CDJ 1965 SC 311
(ii) Kalawatibai Vs. Soiryabai and others reported in CDJ 1991 SC 142
(iii) Sayeda Akhtar Vs. Abdul Ahad reported in (2003) 7 SCC 52
(iv) Naresh and others Vs. Hemant and others reported in 2019 SCC Online SC 1490
(v) K.M.S.L. Sundaramier Vs. K.N.Sarojini reported in MANU/TN/ 1459/1983
(vi) Athmaram Rao and another Vs. Shanthan Phawar and another in AS(MD).No.111 of 2015
(vii) N.Krishnammal Vs. R.Ekambaram & Others reported in CDJ 1979 SC 114
(viii) K.S.Palanisami (dead) through LR's Vs. Hindu Community in General and Citizens of Gobichettipalayam https://www.mhc.tn.gov.in/judis 16/47 S.A.No.1983 of 2002 and others reported in (2017) 13 SCC 15
(ix) V.Tulasamma & others Vs. V.Sesha Reddi(dead) by LR's reported in CDJ 1977 SC 176
(x) Rangammal Vs. Marudamuthu Muthuraja reported in CDJ 1970 MHC 260.
9. Heard Mr.T.M.Hariharan, learned counsel appearing for the plaintiff / appellant and Mr.R.Srinivas, learned counsel appearing for the respondents 2 to 4, Mr.V.Manohar, learned counsel appearing for the respondents 5 and 6.
10. After hearing lengthy and elaborate arguments on either side, this Court formulated additional substantial question of law in this second appeal as follows:
(i) Whether the life interest of the Kuppammal who is legally entitled to be maintained from out of the estate of her husband does not enlarge into absolute estate on the coming into force of Section 14(1) of Hindu Succession Act, 1956?
11. Admittedly, the suit property is a self acquired property and owned by Ramasamy Pillai. He got married one, Kuppammal. He executed https://www.mhc.tn.gov.in/judis 17/47 S.A.No.1983 of 2002 registered Will dated 09.01.1938, thereby bequeathing the suit property with absolute right to the heirs of his son Vellingiri. The recital of the Will dated 09.01.1938 is very important to decide the substantial question of law formulated by this Court and the relevant recital reads as follows:
vdf;F Rahh;$;$pjtifapy; ghj;jpag;gl;l ,jdoapy; fz;l !;jhtubrhj;Jf;fisa[k; vdf;F tuntz;oa nythnjtp tifauhf;fisa[k; vd; $Ptjpirtiuapy; ehd; mDgtpj;J te;J vd; $Ptjpirf;Fg; gpd; vd; kidtp Fg;gk;khs; mile;J ,jdoapy; fz;l brhj;Jf;fisa[k; tu ntz;oa nythnjtpfisa[k; vt;tpj ghuhjPdkk; bra;ahky; mjd; tUk;goiaf; bfhz;L kl;Lk; FLk;gj;ija[k; rtuc &id bra;J te;J ic& nythnjtpfisa[k; !;jhtu brhj;Jf;fspd; tUk;goiaa[k; rhpahdgo fzf;Fitj;J te;J nkw;go vd; kidtp Fg;gk;khs; $Ptjpirf;Fg; gpd; vd; Fkhud; bts;spa';fphp gpsi ; sf;F gpwf;Fk; thhpRfs; rh;t Rje;jpukha; mDgtpj;Jf; bfhs;s ntz;oaJ/ ic& bts;spa';fphpg; gpsi ; s thhpRfs; rh;tRje;jpuj;Jld; jhdhjp tpff; pua';fSf;F nahf;fpakha; Mz;lDgtpj;Jf; bfhs;s ntz;oaJ ic& vd; FLk;gj;jpy; vd; kditp Fg;gk;khSf;Fk; vd; Fkhuh; bts;spa';fphpg;gpsi ; sf;Fk; ic& Fg;gk;khs;
$Ptjpirf;Fs; xw;Wik Vw;glhtpl;lhy; ic& vd; kidtp Fg;gk;khs; vd; Fkhuh; bts;spa';fphpg; gpsi ; sf;F ,jdoapy; fz;l brhj;Jf;fspd; K:ypakha; Vw;gLk; tUk;goapy; rhpghjp tUk;goiaf; bfhLj;J gpujpia ic& bts;sp'f; phpg;gpsi ; sahy;
urPJ bgw;Wf; bfhs;sntz;oaJ/ On reading of the above recitals in whole, the intention of the attestor is very clear that the suit property was self earned one and it was vested with his wife for her maintenance for herself and family members from the income derived from the suit property and the financial transaction with others, more particularly his wife Kuppammal vested with the interest of the entire suit property till her life time without any right to alienate and also with proper https://www.mhc.tn.gov.in/judis 18/47 S.A.No.1983 of 2002 accounts in respect of the income derived from the suit property. Further, if any dispute with her son, namely Vellingiri in respect of their unity, she was directed to give half of the income derived from the suit property with proper receipt. Therefore, she was given life estate till her life time and thereafter the property should go to the heirs of the said Vellingiri.
12. It is also proved from the written statement filed by the defendant, namely the son of the Vellingiri, his father was not leading a responsible life and he was wayward and extravagant. Therefore, it was borne out in the mind of the testator, namely the Ramasamy Pillai and directed his wife to maintain accounts of the income derived from the suit property and also get receipt on payment of half income from the suit property to son, namely Vellingiri. The intention of the testator is very clear that the entire interest over the suit property was vested with his wife Kuppammal except the right of alienations. In this regard, the learned counsel for the defendant relied upon the judgment in the case of K.S.Palanisami (dead) through LR's Vs. Hindu Community in General and Citizens of Gobichettipalayam and others reported in (2017) 13 SCC 15, wherein the Hon'ble Supreme Court of India held as follows:
32. Before we advert to the Will dated 27.09.1968, it is useful to recall few well settled rules of construction of a Will. Privy Council in an https://www.mhc.tn.gov.in/judis 19/47 S.A.No.1983 of 2002 old decision, Sreemutty Soorjeemoney Dossee Vs. Denubundoo Mullick (1854-57) 6 MIA 526, laid down following rules of construction of a Will:
“The Hindu Law, no less than the English law, points to the intention as the element by which we are to be guided in determining the effect of a testamentary disposition; nor, so far as we are aware, is there any difference between the one law and the other as to the materials from which the intention is to be collected. Primarily the words of the will are to be considered. They convey the expression of the testator’s wishes; but the meaning to be attached to them may be affected by surrounding circumstances, and where this is the case those circumstances no doubt must be regarded. Amongst the circumstances thus to be regarded, is the law of the country under which the will is made and its dispositions are to be carried out. If that law has attached to particular words a particular meaning, or to a particular disposition a particular effect, it must be assumed that the testator, in the dispositions which he has made, had regard to that meaning or to that effect, unless the language of the will or the surrounding circumstances displace that assumption.”
33. In Rajendra Prasad Bose and another. Versus Gopal Prasad Sen, AIR 1930 Privy Council 242, laid down that “the duty of the Court is to ascertain the intention from the words used in the document” and it further held:-
“...once the construction is settled, the court is bound to carry out the intention as expressed and no other...” https://www.mhc.tn.gov.in/judis 20/47 S.A.No.1983 of 2002 The above judgment is squarely applicable to the case on hand and the Hon'ble Supreme Court of India held that the courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the attestor, his family relationships, the probability that he would use the words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure. The court is entitled to put itself into the testator's armchair, but all this is solely as an aid to arriving at a right construction of the Will and to ascertain the meaning of its language when used by that particular testator in that document. On the recitals of the Will, as above narrated, clearly shows the intention of the attestor that his son was not leading a good life and as such the entire property was vested with the interest of his wife and after her life time it goes to the heirs of his son, Vellingiri. Further on reading the Will as whole, this Court bear in mind that the property was bequeathed in favour of his wife, namely Kuppammal as her life estate till her death without any absolute right, namely without the power to alienate the suit property.
13.1. The Will Ex.A.1 was executed in the year 1938. Even assuming that the said Kuppammal, namely wife of Ramasamy Pillai was not given any https://www.mhc.tn.gov.in/judis 21/47 S.A.No.1983 of 2002 right over the suit property, she had pre-existing right over the suit property immediately after the death of her husband, namely Ramasamy Pillai died in the year 1938 itself after executing the Will dated 09.01.1938. Even the suit property was vested with the said Kuppammal only to maintain the property and maintain the family, it must be in lieu of her pre-existing right to maintenance and the property given under the Will and as such it must be construed to have been acquired by the legatee under the Will in lieu of her right to maintenance. That right to maintenance to a hindu female received statutory recognition under the Hindu Adoption and Maintenance Act, 1956.
She is entitled to realise maintenance from the property of her husband and even in the hands of strangers except the bona fide purchasers for value whether notice of her right, and wife is entitled to maintain by the husband during the subsistence of matrimonial relationship, such right of maintenance also includes the right of residence. The background in which the deed of Will was executed and also appears from the recital itself that it was executed obviously for maintenance of his wife Kuppammal and the maintenance of her entire family till her life time. Further, in the year 1938 both the Shastric Hindu Law and the subsequent statutes recognise this right of the wife to enforce such right against the properties in the hands of the alienee with notice of her claim. In this regard, the learned counsel for the plaintiff relied upon the following judgments.
https://www.mhc.tn.gov.in/judis 22/47 S.A.No.1983 of 2002
(i) C.Masilamani Mudaliar and Others Vs. Idol of Sri Swaminathaswami Swaminathaswami Thirukoil and Others reported in (1996) 8 SCC 525, wherein it is held as follows:
15.It is seen that if after the Constitution came into force the right to equality and dignity of person enshrined in the Preamble of the Constitution, Fundamental Rights and Directive Principles which are a Trinity intended to remove discrimination or disability on grounds only of social status or gender, removed the pre-existing impediments that stood in the way of female or weaker segments or the society. In S.R. Bommai v. Union of India [(1995) 1 SCC ] this Court held that the Preamble is part of the basic structure of the Constitution. Handicaps should be removed only under rule of law to enliven the Trinity of justices equality and liberty with dignity of person. The basic structure permeates equality to status and opportunity. The personal laws conferring inferior status on women is anathema to equality. Personal laws are derived not from the Constitution but from the religious scriptures. The laws thus derived must be consistent with the Constitution lest they became void under Article 13 if they violated fundamental rights. Right to equality is a fundamental right. Parliament, therefore, has enacted Section 14 to remove pre-existing disabilities fastened on the Hindu female limiting her right to property without full ownership thereof. The discrimination is sought to be remedied by Section 14 [1] enlarging the scope of acquisition of the property by a Hindu female appending an explanation with it.
29.The legatee Sellathachi had right to maintenance under the Hindu Adoption and Maintenance Act when the property was given to her for maintenance. It must be in lieu of her pre- existing right to maintenance and the property given under the will, https://www.mhc.tn.gov.in/judis 23/47 S.A.No.1983 of 2002 therefore, must be construed to have been acquired by the legatee under the will in lieu of her right to maintenance. That right to maintenance to a Hindu female received statutory recognition under the Hindu Adoption and Maintenance Act, 1956. She is entitled to realise maintenance from property of her husband and even in the hands of strangers except the bona purchasers for value whether notice af her right. She is equally entitled under Section 37 of the Transfer of Property Act to have charge created over the property for realization of her maintenance. On the demise of the testator, she being the class-I heir but for the bequeath, is entitled to succeed as an absolute owner. In either of those circumstances, the question emerges whether she acquires a limited right under Section 14(2) for the first time under the Will. In the light of the facts and circumstances of the case and the legal setting, we are of the considered view that she having had under Sastric law, as envisaged in the Will, the properties in recognition of her pre-existing right to maintenance, it is not a right acquired for the first time under the instrument will, but it is a reflection of the pre-existing right under the Sastric law, which was blossomed into an absolute ownership after 1956 under Section 14 [1] of the Act.
Under these circumstances, it cannot be held that Sellathachi acquired the right to maintenance for the first time under the instrument will. The Division Bench, therefore, does not appear to have approached the problem in the correct perspective. In view of the settled legal position right from Tulasamma's case [supra] the right acquired under the Will is in recognition of the pre-existing right to maintenance known under the Sastric law and was transformed into an absolute right under Section 14(1) wiped out the restrictive estate given under the Sastric law and Sellathachi as absolute owner of the property. The Division bench of the High https://www.mhc.tn.gov.in/judis 24/47 S.A.No.1983 of 2002 Court, therefore, was not correct in holding that Sellathachi has acquired only a limited estate under the Will and Section 14(2) attracts to the restrictive covenants contained in the will limiting her right to maintenance for life time and, thereafter, the right to enjoy the income from the lands and on her demise, the income should go to the temples as mentioned in the will is not correct in law.
30.Shri Rangam then contended that when the testator has thought of providing only maintenance, to the two widows, the properties being more than 10 acres, the maintenance must be only proportionate to the needs of the widow and to that extent the widow acquires an absolute right but not the entire property. We find no force in that contention. It is to be seen that under the pre-existing law, she is entitled to remain in possession of the whole estate known as widow's estate and after the Act has come into force that widow's estate was blossomed into an absolute estate by operation of Section 14(1) Even in the Will Ex-A1, no such restrictive covenant was engrafted giving reasonable proportion of income consistent with her needs for maintenance. On the other hand, the express covenant is that, he recognized her right to maintenance and in lieu of the maintenance property was given to her for her maintenance during her lifetime. That is the pre-existing right as per then existing law. After the Act has come into force, the limited estate has blossomed into an absolute estate. Therefore, the doctrine of proportionality of maintenance is not applicable and cannot be extended.
(ii) Basudeb Dey Sarkar Vs. Chhaya Dey Sarkar reported in 1991 SCC Online Cal 9 : AIR 1991 Cal 399, wherein it is held as follows:
https://www.mhc.tn.gov.in/judis 25/47 S.A.No.1983 of 2002
2. The undisputed facts of this case are the plaintiff-
appellant Shri Basudeb Dey Sarkar is the husband's brother or Smt. Chhaya Dey Sarkar the wife defendant-respondent. The plaintiff- appellant brought this suit claiming to be the absolute owner of an undivided moity share in respect of a partly two storeyed and partly single storeyed brick built house and that his brother Gourhari Dey Sarkar the husband of the defendant-appellant was the owner of other undivided half share in the suit premises. It was alleged that due to family troubles the brother of the plaintiff i.e., the husband of the defendant-respondent was living apart and the appellant was living in one room on the ground floor of the suit premises. It was also alleged that brother of the plaintiff has filed a matrimonial suit against his wife which is still pending. It was the further case of the plaintiff that by virtue of a registered deed of settlement dated 8-8-84, the brother of the plaintiff, absolutely transferred his undivided half share in the suit premises, appointing the plaintiff as the sole trustee for the plaintiffs children delivering possession of his half share in the suit premises. The defendant- respondent was allowed to occupy a room of the suit premises as a licensee without payment of any fee and the said licence having been revoked and the defendant-respondent having not vacated the same, the plaintiff was compelled to bring the suit.
8. It goes without saying that a wife is entitled to maintenance by the husband during the subsistence of the matrimonial relationship, such right of maintenance also includes the right of residence. The background in which the deed of settlement (Exbt. 2) was made and as it also appears from the recital of the deed itself that it was created obviously for a definite purpose. The deed itself is undoubtedly gratuitous in nature to a close relation i.e., the brother who had the clear notice of the https://www.mhc.tn.gov.in/judis 26/47 S.A.No.1983 of 2002 position of the wife, being a resident of the said premises. Cl. (e) of such deed shows that the husband reserves the right to appoint trustee and showing further that it was just a device to get back the properly afterwards. It is not a simple deed of gift or even a family settlement and the purpose for which such deed was created is strictly forbidden u/S. 4 of the Trust Act. The obvious purpose was to defeat the right of the defendant wife claiming right of residence. If a deed of trust is made for a purpose which is other than lawful or to defeat the provision of particular Act, or for a fraudulent purpose to injure the person or property of another, hardly it can be said to be a lawful transaction and is forbidden u/ S. 4 of the Trust Act.
13. The principle of law that the wife can enforce such right, under the express terms of S. 39 of the Transfer of Property Act finds endorsement from the decision of the different High Courts and it has been held that both the Shastric Hindu Law and the subsequent statutes recognise this right of the wife to enforce such right against the properties in the hands of the alienee with notice of her claim. We may refer in this connection to the decision of Subha Rao, C.J. as reported in AIR 1958 Andh Pra 396 and also another decision of the same High Court reported in AIR 1957 Andh Pra 710. In, the latter decision, it was held that "the Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Jajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal https://www.mhc.tn.gov.in/judis 27/47 S.A.No.1983 of 2002 obligation to maintain his wife and if he or the family has property, the female has, the legal right to be maintained therefrom. If a charge is created for the maintenance of a family the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right."
(iii) Beni Bai Vs. Raghubir Prasad reported in (1999) 3 SCC 234, wherein it is held as follows:
7.From the aforesaid pronouncement of law by this Court, it is clear that sub-section (1) of Section 14 applies to the cases where the conferment of right to a Hindu widow was in lieu of maintenance or in recognition of her pre-existing right as provided under the Shastric law and Hindu Womens Rights to Property Act.
Sub-sections(2) of Section 14 of the Act would apply only to such cases where grant conferred a fresh right or title for the first time and while conferring the said right certain restrictions were placed by the grant or transfer.
In the above judgments, the Hon'ble Supreme Court of India held that the property which was given to wife has to be construed as her pre-existing right to maintenance under the Hindu Adoption and Maintenance Act. Further held that under the pre-existing law, the wife is entitled to remain in possession of the whole estate known as widow's estate and after the Act has come into force, that widow's estate was blossomed into an absolute estate by operation of Section 14(1) of Hindu Succession Act, 1956. https://www.mhc.tn.gov.in/judis 28/47 S.A.No.1983 of 2002 13.2. The above judgments are squarely applicable to the case on hand. It is seen from the recital of the Will as extracted above, the word called “ vd; $Ptjpirf;Fg;gpd; vd; kidtp Fg;gk;khs; mile;J Fg;gk;khspd; $Ptjpirf;Fg;gpd; “ means that his wife was given life estate till her life time. Even assuming that she was not given any right, interest over the suit property by the Will, she was entitled for her maintenance being the wife of the said Ramasamy Pillai.
14. When the said Ramasamy Pillai died after execution of the Will, his wife the said Kuppammal entitled for her maintenance. She was being the wife, she is entitled for maintenance not as a charge but as a matter of right. The right of the said Kuppammal under the Will was in lieu of maintenance. If so, the right acquired by the said Kuppammal under Ex.A.1 is absolute one. It cannot be restricted in any manner. Therefore, Section 14(1) of the Hindu Succession Act Central Act, 1956 is squarely applicable. In this regard, the learned counsel for the plaintiff relied upon the following judgments.
(i) Maharaja Pillai Lakshmi Ammal Vs. Maharaja Pillai Thillanayakom Pillai and Another reported in (1988) 1 SCC 99, wherein it is held as follows:
The property possessed by a female referred to
under Section 14(1) includes property both movable and
immovable, property. It may be acquired by a female Hindu by https://www.mhc.tn.gov.in/judis 29/47 S.A.No.1983 of 2002 inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance etc. The deed or any other arrangement by which the husband gives the property to his wife for maintenance need not specifically state that it is given in lieu of maintenance. It is not an act of charity the husband does. It is out of his personal obligation to maintain her. The right to maintenance of a Hindu woman is a personal obligation of the husband. If, therefore, the wife is put in exclusive possession of the property with the right to take the income for her maintenance, it must be presumed that the property is given to her in lieu of maintenance. The very right to receive maintenance which is inherent in her, is itself sufficient to enable the ripening of possession of any property into full ownership under Section 14(1) of the Hindu Succession Act.
(ii) Gulwant Kaur and another Vs. Mohinder Singh and Others reported in (1987) 3 SCC 674, wherein it is held as follows:
It is obvious that sec. 14 is aimed at removing restric- tions or limitations on the right of a female Hindu to enjoy, as a full owner, property possessed by her so long as her possession is traceable to a lawful origin, that is to say, if she has a vestige of a title. It makes no difference whether the property is acquired by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or by her own skill or exertion or by purchase or by prescription or in any other manner whatsoever. The explanation expressly refers to property acquired in lieu of maintenance and we do not see what further title the widow is required to establish before she can claim full ownership under sec. 14(1) in respect of property given to her and possessed by her in lieu of maintenance. The very right to receive maintenance is sufficient title to enable the ripening of possession into full https://www.mhc.tn.gov.in/judis 30/47 S.A.No.1983 of 2002 ownership if she is in possession of the property in lieu of maintenance. Sub-sec. 2 of sec. 14 is in the nature of an exception to sec. 14(1) and provides for a situation where property is acquired by a female Hindu under a written instrument or a decree of court and not where such acquisition is traceable to any antecedents right.
(iii) V.Tulsamma and Others Vs. Sesha Reddy (dead) by LR's reported in (1977) 3 SCC 99, wherein it is held as follows:
We would now like to summarise the legal conclusions which we have reached after an exhaustive considerations of the authorities mentioned above; on the question of law involved in this appeal as to the interpretation of S. 14(1) and (2) of the Act of 1956. These conclusions may be stated thus:
(1) The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-
existing right so that any transfer declaring or recognising such a https://www.mhc.tn.gov.in/judis 31/47 S.A.No.1983 of 2002 right does not confer any new title but merely endorses or confirms the pre-existing rights.
(2) Section 14(1) and the Explanation thereto have been. couched in the widest possible terms. and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends, sought to be achieved by this long needed legislation.
(3) Sub-section (2) of s. 14 is in the nature of a proviso and has a field of its own without interfering with the operation of s. 14(1) materially. The proviso. should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by s. 14(1) or in a way so as to become totally inconsistent with the main provision.
(4) Sub-section (2) of s. 14 applies to instruments, decrees, awards, gifts etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise preexisting rights. In such cases a restricted estate in favour of a female is legally permissible and s. 14(1) will not operate in this sphere. Where, however, an instrument merely de- clares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the female's limited interest would automatically be en- larged into. an absolute one by force of s. 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or trans- ferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub- https://www.mhc.tn.gov.in/judis 32/47 S.A.No.1983 of 2002 s. (2) and would be governed by s. 14(1) despite any restrictions placed on the powers of the transferee.
(5) The use of express terms like "property acquired by a female Hindu at a partition", "or in lieu of maintenance" "or arrears of maintenance" etc. in the Explanation to s. 14(1) clearly makes sub-s. (2) inapplicable to these catego- ries which have been expressly excepted from the operation of sub-s. (2).
(6) The words "possessed by" used by the Legislature in s. 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same: Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of s. 14(1) she would get absolute interest. in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser with- out any right or title.
(7) That the words "restricted estate" used in s. 4(2) are wider than limited interest as indicated in s. 14(1) and they include not only limited interest, but also. any other kind of limitation that may be placed on the transferee.
It is relevant to extract the provision under Section 14 (1) and (2) of the Hindu Succession Act.
(1) Any property possessed by a female Hindu, whether https://www.mhc.tn.gov.in/judis 33/47 S.A.No.1983 of 2002 acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.- In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
By Section 14(1) of the legislature sought to convert the interest of a Hindu female which under the Sastric Hindu Law would have been recorded as a limited interest into an absolute interest and by the explanation thereto gave to the expression property the widest connotation. The expression includes property acquired by a Hindu female by inheritance or device, or at a partition, or in lieu of maintenance of arrears of maintenance, or by gift from https://www.mhc.tn.gov.in/judis 34/47 S.A.No.1983 of 2002 any person, etc. Therefore, it is intended to convert the interest which a Hindu female has in property however restricted the nature of that interest under Sastric Hindu Law may be into absolute estate. The Act is a codifying enactment, and has made far reaching changes in the structure of the Hindu Law of inheritance, and succession. It also confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her power of dispositions which were regarded under the Hindu law as inherent in her estate. In this regard, it is also relevant to rely upon the judgment in the case of Jupudy Pardha Sarathy Vs. Pentapati Rama Krishna and others in Civil Appeal No.375 of 2007, wherein it is quoted the judgment of three Judges Bench of the Hon'ble Supreme Court of India in the case of R.B.S.S.Munnalal Vs. S.S.Rajkumar reported in AIR 1962 SC 1493, wherein it is held as follows:
21. The facts in Karmi’s case (supra) and that of the present case are fully distinguishable. In the instant case, the Will was executed in 1920 in which Subba Rao has mentioned that his first wife died, the second wife got two sons and one daughter.
Thereafter, second wife also died. He, then, married to Veeraraghavamma as a third wife, who is alive. The executant of the Will have also mentioned the description of the properties owned by him. He, very specifically mentioned in the Will that his third wife Veeraraghavamma shall enjoy for life one tiled house situated in the compound wall. For that enjoyment, it was also mentioned in the Will that the widow Veeraraghavamma shall also be entitled to fetch water from the well situated in the backyard of https://www.mhc.tn.gov.in/judis 35/47 S.A.No.1983 of 2002 a different house. In other words, the executant of the Will made arrangements for his third wife to maintain her enjoyment in the suit schedule property till her life. The intention of the executant is therefore clear that he gave the suit schedule property to his third wife Veeraraghavamma in order to hold and enjoy the suit property for her maintenance during her lifetime. It is not a case like Karmi case that by executing a Will, the executant directed that his entire estate will devolve upon his widow Veeraraghavamma.
22. A three Judges Bench of this Court in the case of R.B. S.S. Munnalal and Others vs. S.S. Rajkumar & Others, AIR 1962 SC 1493, while interpreting the provisions of Section 14(1) of the Act observed:- “16. By Section 14(1) the legislature sought to convert the interest of a Hindu female which under the Sastric Hindu law would have been regarded as a limited interest into an absolute interest and by the Explanation thereto gave to the expression “property” the widest connotation. The expression includes property acquired by a Hindu female by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever. By Section 14(1) manifestly it is intended to convert the interest which a Hindu female has in property however restricted the nature of that interest under the Sastric Hindu law may be into absolute estate. Pratapmull case undoubtedly laid down that till actual division of the share declared in her favour by a preliminary decree for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, but that rule cannot in our judgment apply after the enactment of the Hindu Succession Act. The Act is a codifying https://www.mhc.tn.gov.in/judis 36/47 S.A.No.1983 of 2002 enactment, and has made far reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate. She is under the Act regarded as a fresh stock of descent in respect of property possessed by her at the time of her death. It is true that under the Sastric Hindu law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu other right to maintenance. She was not entitled to claim partition. But the Legislature by enacting the Hindu Womens' Right to Property Act, 1937 made a significant departure in that branch of the law; the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned she became owner in severalty of her share, subject of course to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil. It cannot be assumed having regard to this development that in enacting Section 14 of the Hindu Succession Act, the legislature merely intended to declare the rule enunciated by the Privy Council in PratapmuIl case. Section 4 of the Act gives an overriding effect to the provisions of the Act.” The Hon'ble Supreme Court of India in above all the cases, observed that the very right to receive maintenance which is inheritent in her, is itself sufficient to enable the ripening of possession of any property into full ownership under Section 14 (1) of the Hindu Succession Act. In the case on hand, the testator executed Will under Ex.A.1 and bequeathed the suit property in favour of the https://www.mhc.tn.gov.in/judis 37/47 S.A.No.1983 of 2002 heirs of his son Vellingiri with absolute right over the suit property. Before that, his wife the said Kuppammal was given right to maintain the property. On perusal of the recitals of the Will as extracted above, it is very clear that the arrangements made by the testator had given the property to his wife Kuppammal for maintenance. It is not an act of charge, husband does. It is out of his personal obligation to maintain her. The right to maintenance of a Hindu woman is a personal obligation of her husband. Therefore, the wife is put in exclusive possession of the property with the right to take the income for her maintenance. It must be presumed that the property is given to her in lieu of maintenance. The very right to receive the maintenance which is inheritent in her is itself sufficient to enable the ripening of possession of any property into full ownership under Section 14(1) of the Hindu Successions Act. Therefore, the above judgments are squarely applicable to the case on hand and the recital of the Will in question that the said Kuppammal would have only a life interest in the property allotted to her.
15. The learned counsel for the defendant vehemently contended that the word 'heirs' used in the Will denotes make issues or sons of Vellingiri. In the year 1938, only sons were heirs in the Hindu Law and the daughters were not heirs. In support of his contention, he relied upon the following https://www.mhc.tn.gov.in/judis 38/47 S.A.No.1983 of 2002 judgments:
(i) K.M.S.L. Sundaramier Vs. K.N.Sarojini reported in MANU/TN/ 1459/1983, wherein it is held as follows:
“6.The words that call for interpretation in the trust deed are The ward 'varisu' means an heir at law. The term 'varis' arose for interpretation in Jagdeo v. Dy. Commissioner Partabgarh. There, one Raja Ajit Singh had executed a will on 5th November, 1884 under which he provided that one Raj Partab Bahadur Singh would, after his death get all his properties and would be his 'varis' and 'janashin'. In constructing the words 'varis' and 'janashin' Hasan, J.observed as follows:
The word 'waris' and 'janashin' are well-known words of limitation denoting and estate of inheritance; but this natural meaning may of course be displaced by the context as showing a different meaning. According to my judgment, however, there is nothing in the context to alter the natural and original meaning of these words. The literal translation of the word 'waris' is heir and of 'janashin locum tenens. Ordinarily a person does not take an estate in the character of an heir without possessing the quality of transmitting the inheritance to his future heirs according to law.
(ii) N.Krishnammal Vs. R.Ekambaram & Others reported in CDJ 1979 SC 114 “It is well settled that legal terms such as "heirs", used in a Will must be construed in the legal sense, unless a contrary https://www.mhc.tn.gov.in/judis 39/47 S.A.No.1983 of 2002 intention is clearly expressed by the testator. The word "heirs", as pointed out by this Court in Angurbala Mullick v. Debabrata Mullick(1) cannot normally be limited to "issues" only. It must mean all persons who are entitled to the property of another under the law of inheritance.
There is nothing in the language of Clause 5 of the Will which compels the construction that by use of the expression "my heirs" the testator meant something different from his 'heirs under the law.' The expression "my heirs" has therefore to be construed as equivalent to "my legal heirs". Thus considered, the words used in the last two sentences of Clause 5 of the Will are not words of gift over to any 'artificial' class of heirs. They only indicate that in the event of Nataraja's death without any male issue, further devolution of the estate that had been given to him for life, would be regulated in favour of the testator's heirs ascertained in accordance with Hindu Law of intestate succession. That is to say, the testator did not specify or lay down any line of heirs, deviating from the Hindu Law of intestate succession.”
16. Per contra, the learned counsel for the plaintiff contended that Ex.A.1 Will's recital clearly shows that the heirs of the Vellingiri will take the property after the life time of the Kuppammal. On the plain reading of Ex.A.1 Will, succession arose on the death of the said Kuppammal. If at all the argument of the defendant accepted neither the plaintiff nor the defendant were born in the year 1938, namely at the time of executing the Will, the gift or bequeath to an unborn person is void. Unfortunately, the courts below https://www.mhc.tn.gov.in/judis 40/47 S.A.No.1983 of 2002 have applied a legal fiction in determining the law to be applied. The last male holder of a property might have died years ago leaving behind widow. In such case, the physical death of the last male holder is not taken into account for determining the heirs. On the contrary, the last male holder is fictionally deemed to be died only when the widow dies and the heirs should be determined only when the widow dies and the heirs should be decided as the law stood in the year 1975 and not in the year 1938. On death of their mother Kuppammal, the parties are governed by Central Act 30 of 1956. Therefore, the plaintiff and the defendant are the heirs and they are entitled to have their respective shares in the suit properties. In support of his contention, he also relied upon the judgment in the case of Bay Berry Apartments (P) Ltd and another Vs. Shobha and others reported in (2006) 13 SCC 737, wherein it is held as follows:
17.Indisputably, in the year 1932 when the Will was executed the plaintiffs were not the heirs of the propounder. In terms of the law as was existing then, they were not heirs of the testator. They could not have inherited their property further as they were not the heirs of V. Papaiah Naidu.
18.The Parliament, however, enacted Hindu Succession Act, 1956. On the date of execution of the Will, the original defendant No. 1 was a minor. He was married later on. He was blessed with a son only in the year 1957. On the date when the deed of sale was executed, i.e. on 3.12.1975, the original defendant No. 1 and his son were majors. He has not questioned the legality of the said deed of sale. The question, however, would arise as to whether the https://www.mhc.tn.gov.in/judis 41/47 S.A.No.1983 of 2002 plaintiffs became the heirs of their father having regard to the provisions of the Hindu Succession Act. In law, indisputably, the question is whether they were 'heirs' within the meaning of the said term as expressed in the Will. By reason of the Will, the original defendant No. 1 did not succeed to the interest absolutely. He was given only life interest. Succession under the Will opened only on his death. He died during pendency of the suit in the year 1998. Succession opened only then. In the year 1975, the original defendant No.1 and his son, thus, had no authority to execute any deed of sale. The defendant No.1 could only transfer or alienate the interest he had in the property. Respondent No.3, thus, did not inherit the property although in the deed of sale dated 3.12.1975 it was stipulated that both of them were owners thereof and had perfect title therein.
The Hon'ble Supreme Court of India held when the question arises as to whether the plaintiffs became the heirs of their father having regard to provisions of the Hindu Succession Act, father was given only life interest and the succession under the Will opens only on his death. In the case on hand, though the Will was executed in the year 1938, as decided above, the life interest was given to Kuppammal, namely the mother of the plaintiff and the defendant, and only after her demise, the succession under the Will opened. Admittedly, the said Kuppammal died in the year 1975 and thereafter the plaintiff and the defendant are entitled to have their respective shares in the suit properties. Therefore, the judgments cited by the defendants are not https://www.mhc.tn.gov.in/judis 42/47 S.A.No.1983 of 2002 applicable to the case on hand. Further the issue of the word “heirs” mentioned in the Will executed in the year 1938, whether includes female or not will left open. This Court felt this issue does not need to be answered, when this Court decided other substantial questions of law in favour of the plaintiff.
17. The other point raised by the learned counsel for the defendant that the concurrent findings of the courts below should not be normally interfered in second appeal, when there is no perversity, wrong reading of judgment or finding without evidence or illegality in the findings. In support of his contention, he relied upon the judgment in the case of Naresh and Others Vs. Hemant and others reported in 2019 SCC Online SC 1490, wherein it is held as follows:
“The High Court therefore manifestly erred by interfering with the concurrent findings on facts by two courts below in exercise of powers under Section 100, Civil Procedure Code, a jurisdiction confined to substantial questions of law only. Merely because the High Court may have been of the opinion that the interference and conclusions on the evidence were erroneous, and that another conclusion to its satisfaction could be drawn, cannot be justification for the High Court to have interferred.” https://www.mhc.tn.gov.in/judis 43/47 S.A.No.1983 of 2002
18. Per contra, the learned counsel for the plaintiff submitted that when the judgments of the courts below are based on misinterpretation of the documentary evidence or consideration of inadmissible evidence or ignoring material evidence or on a finding of fact have ignored admissions or concession made by witnesses or parties, the High Court can interfere in appeal under Section 100 of CPC. In support of his contention, he relied upon the judgment in the case of Hero Vinoth(Minor) Vs. Seshammal reported in (2006) 5 SCC 545, wherein it is held as follows:
The principles relating to Section 100 CPC, relevant for this case, may be summerised thus:-
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of https://www.mhc.tn.gov.in/judis 44/47 S.A.No.1983 of 2002 express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where
(i) the courts below have ignored material evidence or acted on no evidence;
(ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
19. In the case on hand, the courts below erred in holding that Ex.A.1 Will is restricting the rights of Kuppammal only to maintain the suit property on the ground that it has been stated in Ex.A.1 that she must maintain family from the income without powers of alienation and also maintain accounts. As discussed above in detail, the findings of the courts below are perverse and against law and as such this Court necessarily has to https://www.mhc.tn.gov.in/judis 45/47 S.A.No.1983 of 2002 interfere with the findings of the courts below, and this Court is satisfied that the second appeal involves substantial questions of law and not mere questions of law.
20. In view of the above discussion, the substantial question of law formulated by this Court while admitting the second appeal and the additional substantial question of law formulated by this Court while at the stage of arguments are answered accordingly in favour of the plaintiff and against the defendant.
21. In fine, the second appeal is allowed, and the judgment and decree passed by the courts below are set aside, and resultantly the suit filed by the appellant in O.S.No.2337 of 1996 on the file of the II Additional District Munsif, Coimbatore is decreed, with costs.
16.03.2020
Index : Yes/No (½)
Internet : Yes/No
Speaking order/Non-speaking order
lok
G.K.ILANTHIRAIYAN, J.
lok
https://www.mhc.tn.gov.in/judis
46/47
S.A.No.1983 of 2002
To
1. The II Additional Subordinate Court,
Coimbatore
2. The II Additional District Munsif,
Coimbatore.
3. The Section Officer,
V.R. Section,
Madras High Court,
Chennai.
Pre delivery Judgment
in S.A.No.1983 of 2002
16.03.2020
https://www.mhc.tn.gov.in/judis
47/47