Andhra HC (Pre-Telangana)
T.K. Subhash vs Smt. Kamala Bali And Ors. on 7 March, 2008
Equivalent citations: 2008(3)ALT490, AIR 2008 ANDHRA PRADESH 169, 2008 (5) ALL LJ NOC 989, 2008 (3) AJHAR (NOC) 771 (AP), 2008 A I H C (NOC) 608 (AP), (2008) 2 HINDULR 238, (2008) 4 ICC 116, (2008) 3 ANDH LT 490
Author: B. Seshasayana Reddy
Bench: B. Seshasayana Reddy
JUDGMENT B. Seshasayana Reddy, J.
1. These two civil miscellaneous appeals are directed against the common order dated 12.11.2007 passed on applications being I.A. Nos. 2554 and 2555 of 2007 in O.S. No. 300 of 2007 on the file of II Additional Chief Judge, City Civil Court, Hyderabad, filed under Order 39, Rules 1 and 2 r/w. Section 151 CPC, whereby and whereunder the learned Additional Chief Judge refused to grant interim reliefs sought for by the plaintiff pending disposal of the suit.
2. Appellant is the plaintiff and whereas respondents are the defendants in O.S. No. 300 of 2007. The plaintiff filed the suit seeking the following reliefs:
(a) to declare that the Gift Deed dated 23.03.2005 vide Document No. 1043/2005 registered in the office of SRO - Azampura, Hyderabad is illegal, void and the Plaintiff is not bound by the same.
(b) Consequentially to direct the defendants to deliver the vacant possession of suit property to the plaintiff.
(c) To grant perpetual injunction restraining the defendants, their agents, subordinates or any body claiming through or under them from demolishing the suit house more particularly mentioned in the schedule of the Plaint.
(d) To grant mesne profits/damages at the rate of Rs. 30,000/- per month from the date of suit till date of delivery of vacant possession of the suit property to the plaintiff.
(e) To award the costs of the suit, and
(f) To pass any other relief deemed fit and proper in the circumstances of the case.
The plaintiff also moved two applications being I.A. Nos. 2554 and 2555 of 2007 seeking certain interim reliefs. The relief sought for in I.A. No. 2554 of 2007 is as follows:
For the reasons stated in the accompanying affidavit the petitioner herein prays that this Hon'ble Court may be pleased to restrain the respondents or any body representing them by an order of ad-interim injunction from demolishing or changing the nature of the petition schedule property till the disposal of the main suit in the interest of justice and any other relief deemed fit in the circumstances of the case may be granted.
The relief sought for in I.A. No. 2555 of 2007 is as follows:
For the reasons stated in the accompanying affidavit, the petitioner herein prays that this Hon'ble Court may be pleased to restrain the respondents or anybody representing them by an order of ad-interim injunction from alienating the petition schedule property till the disposal of the main suit in the interest of justice and any other relief deemed fit in the circumstances of the case maybe granted.
3. Background facts of the case in a nutshell leading to filing of the suit by the plaintiff seeking the reliefs stated supra are: T.S. Krishnachar has 3 sons and 5 daughters. His wife is Smt. Kamala Bai. He purchased 5 plots bearing Nos. 33, 34, 35, 50 and 51 admeasuring 1333.30 sq. yards comprising Survey No. 5, situated at Moosarambagh, Hyderabad, under two registered sale deeds dated 29.06.1956 and 27.08.1958. He constructed a two-storied building on Plot Nos.33 and 34 after obtaining necessary sanction from M.C.H., Hyderabad. The municipal authorities assigned Door No. 16-11-784 to the ground floor and Door No. 16-11-784/1/1 to the first floor. T.S. Krishnachar executed a registered Will dated 23.07.1988 whereunder he bequeathed his properties to his wife and 3 sons. Under the said Will he granted life estate to his wife Smt. Kamala Bai in respect of ground floor as well as first floor. For better understanding we may refer the relevant portion of the Will pertaining to the ground floor and the first floor of the house property constructed on Plot Nos. 33 and 34.
That I am giving my ground floor bearing M.C.H. No. 16-11-784 to my Second Son T.K. Mohan, B.Com., aged about 30 years, and employed in State Bank of Hyderabad, Gunfoundry Main Office, which shall be taken and enjoyed by him with absolute rights only after the demise of my wife Smt. Kamala Bai Krishnachar. That I am giving the first floor building bearing M.C.H. No. 16-11-784/1/1 to my third son T.K. Subhash, B.Sc, aged about 28 years, Employed in Paradeep Phosphates Ltd., posted at present at Warangal, which shall be taken and enjoyed by him with absolute rights only after the demise of my wife Smt. Kamalabai Krishnachar. Entry to the first floor from front and rear will have a common portion of land with existing iron gate at the entrance on a paved open ground which has to be utilized by both first floor and ground floor occupants of temporarily constructed shed of about 11 ft. x 16 ft. with asbestos roof existing at the rear end of this common strip of land is for parking, car garage or to let out as desired by the first floor occupant. A water collection sump is also provided with an additional half inch water line adjacent to the main building to facilitate storage of water for the use of first floor occupant in addition to the existing ¾ water line. A strip of paved land from the iron gate entry to the house is taken from Plot No. 33 therefore, Plot No. 33 will not be of 30 ft. x 60 ft. only.
This plot is having 9 in brick in Mud Compound wall on three sides i.e., East, West and South similarly the periphery of the plots are having 9 in brick-in-mud compound wall.
That I am giving this Plot 30 ft. x 60 ft. of land in Plot No. 33 to my wife Kamalabai Krishnachar, aged about 60 years, who will have the right to use and handover with absolute rights to my son T.K. Subhash.
In case of my wife's (Kamala Bhai's) untimely and unexpected death the plot No. 33 will automatically go to with absolute rights to my son T.K. Subhash. My wife Kamala Bhai Krishna Char will have the right to live in first floor No. 16-11-784/1/1 and collect rent from the ground floor No. 16-11-784 and shed for her maintenance till her demise.
Only after my wife's Death my two sons T.K. Mohan will be eligible to occupy the ground floor and T.K. Subhash to occupy the first floor that I am giving Plot No.35 measuring 40 ft. by 60 ft. next to ground floor building No. 16-11-784 facing Amberpet Road to my first son T.K. Gururaj, B.E., aged about 32 years, employed in Bharat Electronics Ltd., Bangalore with absolute rights.
We also deem it appropriate to refer another clause in the Will to know as to the source of acquisition of house property by the testator Krishnachar and it is thus:
That the property detailed above both movables and immoveables are my own self acquired which I have purchased on the basis of Registered Sale Deed dated 12.06.1956 and dated 27.08.1958 out of my own salary savings, insurance amount, provident fund loans etc., and not with assistance of ancestral property as unfortunately my late father was not possessed of any joint family property or any other means and the property in question being my self acquired property of alone am competent to distribute it according to my own will and conscience. I have kept all the registered sale deeds with my wife Kamalabai for safe custody. I retain the right to cancel this will or any provisions will which I might have executed previously.
4. The plaintiff and D7 are sons, D1 is widow and D2 to D6 are daughters of T.S. Krishnachar. Smt. Kamalabhai (D1) executed registered gift deed in favour of her daughters (D2 to D6) on 23.03.2005. Daughters in turn sold the house property to Chinta Rajesh Kumar, Chinta Balanjani, K.M. Charan Gupta and K. Madhavi (D8 to D11) under a registered sale deed dated 17.05.2007. It is the plea of the plaintiff that Smt. Kamalabai-first defendant has got only limited rights i.e., to enjoy the property during her life time and therefore, she is not entitled to gift the house property in favour of her daughters (defendants 2 to 6). The plaintiff also pleaded that the sale deed executed by defendant Nos. 2 to 6 in favour of defendant Nos.8 to11 is illegal, void and unenforceable under law since the donor (1st defendant) has only limited rights over the house property.
5. The 7th defendant, who is another son of Krishnachar and brother of the plaintiff, supported the claim of the plaintiff. The wife and daughters of Krishnachar, who have been shown as Defendant Nos. 1 to 6, resisted the claim of the plaintiff and so also the purchasers (defendant Nos. 8 to 11). The widow and the daughters contended that limited rights conveyed under a Will dated 23.07.1988 in respect of house property blossomed into absolute rights by virtue of Section 14(1) of the Hindu Succession Act, and thereby the widow is entitled to convey the property to her daughters under a gift deed dated 23.03.2005.
6. The learned Additional Chief Judge, initially granted ad interim injunction restraining the respondents/defendants from demolishing or changing the nature of the suit property and also from alienating the suit property. Defendant Nos. 8 and 9 filed I.A. Nos. 2776 and 2777 of 2007 with a prayer to vacate the ad interim injunction. The learned Additional Chief Judge, considered all the applications viz., temporary injunction applications and petitions seeking vacation of ad interim injunctions together and dismissed the temporary injunction applications and vacated the ad interim injunction, by a common order dated 12.11.2007. For better understanding of the reasons given by the learned Additional Chief Judge for vacating the ad interim injunction, we may reproduce paras 14 and 15 of the common order impugned in these civil miscellaneous appeals and they are thus:
14. In a decision reported in 2006 (1) ALT 621 : 2005 (6) ALD 152, the Hon'ble High Court of Andhra Pradesh held that "Husband's will created life interest in suit property in favour of wife and vested remainder in favour of mother. Life interest in favour of wife under the will enlarged into absolute right by virtue of Section 14(1) of Hindu Succession Act. Vested remainder to appellant does not materialize.
15. There is absolutely no material prima facie placed on record by the plaintiff that the Defendant Nos. 8 to11 are not bona fide purchasers of valuable consideration. Thus, in the light of the facts that are available as stated by me and the contents of the will, prima facie, the plaintiff is unable to show that there was any restriction placed in the will on the Defendant No. 1. The factum of the schedule property enlarging into the absolute right of the Defendant No. 1 and the Defendant No. 1 contributing for the construction of the house are all to be finally decided after the evidence is recorded. The plaintiff, if ultimately, succeeds in the suit, could be will compensated adequately also, but, if the interim injunction is continued, the Defendant Nos. 8 to 11 who are bona fide purchasers for valuable consideration without notice of the claim of the plaintiff would be put to irreparable loss. I therefore, hold that the plaintiff has not made out a prima facie case, balance of convenience or establish that he would suffer irreparable loss which cannot be compensated otherwise. Hence, the plaintiff is not entitled for the ad-interim injunction that was granted in his favour and is liable to be set aside and hence set aside.
7. The common order vacating the ad interim injunction is under challenge in these two civil miscellaneous appeals. More precisely, C.M.A. No. 898 of 2007 is directed against the order passed in I.A. No. 2554 of 2007 and C.M.A. No. 899 of 2007 is directed against the order passed in I.A. No. 2555 of 2007. Since both these civil miscellaneous appeals are directed against the common order, they were heard together and are being disposed of by this common judgment.
8. Heard Sri. Kishore Rai, learned Counsel appearing for the appellant/plaintiff and Sri. K. Somakonda Reddy, learned senior counsel appearing for the respondents 1 to 6/D1 to D6, Sri. Ramesh Babu, learned Counsel appearing for R7/D7 and Sri N. Subba Reddy, learned senior counsel appearing for the respondents 8 to 11/D8 to D11.
9. This is a classic case which illustrates as to how the relationship among the kith and kin snaps when the value of the urban property appreciates by leaps and bounds. The dispute is between the daughters and widow on the one hand and the two sons of Late Krishnachar on the other. At the cost of repetition, we may state the relationship of the parties inter se viz., T.K. Subhash, who is the plaintiff and T.K. Mohan, who is the 7th defendant, are sons and 1st defendant-Kamalabai is the widow and defendant Nos. 2 to 6 viz., Smt. L. Pramodini, Smt. Sudha Kashinath Joshi, Smt. Vijay Dharmpuri, Smt. Kunda H. Krishna Rao, Smt. Usha Panduranga Deshpande are the daughters of Late Krishnachar.
10. Late Krishnachar purchased Plot Nos. 33, 34, 35, 50 and 51 admeasuring 1333.30 sq. yards comprising Survey No. 5, situated at Moosarambagh, Hyderabad, out of his own savings under two registered sale deeds dated 29.06.1956 and 27.08.1958. He constructed a two-storied building therein and the municipal authorities assessed the building for tax and allotted Door Nos. 16-11-784 and 16-11-784/1/1 to the ground floor and first floor respectively. He executed a Will on 23.07.1988, whereunder he granted restricted rights to his wife Kamalabai. The restricted rights are viz., to collect rent of the ground floor and reside in the first floor during her life time. As per the Will, absolute rights in respect of ground floor and first floor have been conferred on T.K. Mohan, who is the 7lh defendant; and first floor in favour of the plaintiff T.K. Subhash respectively.
11. Learned Counsel appearing for the appellant/plaintiff submits that the first defendant has only restricted right to be in occupation of ground floor and first floor and after her death, plaintiff T.K. Subhash has to take the first floor absolutely and whereas 7th defendant T.K. Mohan has to take ground floor absolutely. In a way his contention is that the first defendant has no right to convey the property in favour of any one except to enjoy herself during her lifetime. He would contend that Sub-section (1) of Section 14 of the Hindu Succession Act does not apply to the facts of the case. In support of his submissions, reliance has been placed on the decisions of the Supreme Court in Sadhu Singh v. Gurdwara Sahib Narike , Sharad Subramanyan v. Soumi Mazumdar and the division bench decision of our High Court in P. Achuta Rao v. Union of India .
12. In Sadhu Singh's case , the Supreme Court held that when a male Hindu dies possessed of property after the coming into force of the Hindu Succession Act, his heirs as per the Schedule take it in terms of Section 8 of the Act. The heir or heirs take it absolute. There is no question of any limited estate descending to the heir or heirs. Therefore, when a male Hindu dies after 17.6.1956 leaving his widow as his sole heir, she gets the property as Class I heir and there is no limit to her estate or limitation on her title. In such circumstances, Section 14(1) of the Act would not apply on succession after the Act, or it has no scope for operation.
Or, in other words, even without calling in aid Section 14(1) of the Act, she gets an absolute estate. The Supreme Court also held that an owner of property has normally the right to deal with that property including the right to devise or bequeath the property. He could thus dispose it of by a testament. Section 30 of the Act, not only does not curtail or affect this right, it actually reaffirms that right. Thus, a Hindu male could testamentarily dispose of his property. When he does that, a succession under the Act stands excluded and the property passes to the testamentary heirs. Hence, when a male Hindu executes a will bequeathing the properties, the legatees take it subject to the terms of the will unless of course, any stipulation therein is found invalid. Therefore, there is nothing in the Act, which affects the right of a male Hindu to dispose of his property by providing only a life estate or limited estate for his widow. The Act does not stand in the way of his separate properties being dealt with by him as he deems fit. His will hence could not be challenged as being hit by the Act. It is profitable to refer para. 14 of the cited judgment and it is thus:
14. When he thus validly disposes of his property by providing for a limited estate to his heir, the wife, the wife or widow has to take it as the estate falls. This restriction on her right so provided, is really respected by the Act. It provides in Section 14(2) of the Act, that in such a case, the widow is bound by the limitation on her right and she cannot claim any higher right by invoking Section 14(1) of the Act. In other words, conferment of a limited estate which is otherwise valid in law is reinforced by this Act by the introduction of Section 14(2) of the Act and excluding the operation of Section 14(1) of the Act, even if that provision is held to be attracted in the case of a succession under the Act. Invocation of Section 14(1) of the Act in the case of a testamentary disposition taking effect after the Act, would make Sections 30 and 14(2) redundant or otiose. It will also make redundant, the expression "property possessed by a female Hindu" occurring in Section 14(1) of the Act. An interpretation that leads to such a result cannot certainly be accepted. Surely, there is nothing in the Act compelling such an interpretation. Sections 14 and 30 both have play. Section 14(1) applies in a case where the female had received the property prior to the Act being entitled to it as a matter of right, even if the right be to a limited estate under the Mitakshara law or the right to maintenance.
13. In Sharad Subramanyaris case 2006 (6) SCJ 293 : 2006 (6) ALT 23.4 (DN SC) : AIR 2006 SC 1993, the Supreme Court held that in the absence of any material to indicate that property was given in lieu of right of maintenance and when the terms of the Will indicate of her right of enjoyment in respect of the property, she had only limited interest i.e., life interest in the suit property. For better appreciation, we may refer para 17 of the cited judgment and it is thus:
17. Learned Counsel further contended that, there is no absolute rule that all properties demised to a female Hindu were necessarily in recognition of or in lieu of her right to maintenance. It was possible, even after the Act came into force, to create a limited estate by reason of a gift or will. Such a situation would fall within the ambit of Sub-section (2) of Section 14 of the Act as long as it was not in recognition of or in lieu of right to maintenance under the Shastric Hindu law or under a statute. Learned Senior Counsel relied on Section 30 of the Act, which recognises the right of a Hindu to dispose of self-acquired property by will. Mr Gupta relied on the judgment of this Court in Bhura and Ors. v. Kashi Ram which was also a case of limited estate conferred on a female Hindu by a will. This Court held that, upon a proper construction of the will, the bequeathal in favour of the female Hindu was clearly indicative 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...(the female Hindu) only for her lifetime and not an absolute estate" [11 Ibid, at pp. 114-115 (paragraph 6), per Anand, J.] Thus, in view of the fact that there were no indications, either in the will or externally, to indicate that the property had been given to the female Hindu in recognition of or in lieu of her right to maintenance, it was held that the situation fell within the ambit of Sub-section (2) of Section 14 of the Act and that the restricted life estate granted to the female Hindu could not be enlarged into an absolute estate. Learned Counsel for the respondents relied strongly on this judgment and contended that there was no proposition of law that all dispositions of property made to a female Hindu were necessarily in recognition of her right to maintenance whether under the Shastric Hindu law or under the statutory law. Unless the said fact was independently established to the satisfaction of the court, the grant of the property would be subject to the restrictions contained therein, either by way of a transfer, gift or testamentary disposition. Learned Counsel also distinguished the three cases cited by the learned Counsel for the appellant that in each, the circumstances clearly indicated that the testamentary disposition was in lieu of the right of maintenance of the female Hindu. We think that this contention is well merited and needs to be upheld.
14. In Poosarla Achuta Rao's case ., a Division Bench of our High Court, following the 3 Judge Bench decision of the Supreme Court in Mrs. Karmi v. Amru , has held that where the daughter-in-law was given only life estate in suit property under the Will, she had no right to bequeath that property to be enjoyed after her lifetime as her right in the property ceased on the happening of her death a (SC)nd the legatees under her will could not claim any title to the suit property on the basis of will executed by her.
15. Sri N. Subba Reddy, learned Counsel appearing for the respondents 8 to 11 (defendants 8 to 11) submits that the first defendant was given the ground floor and first floor of the suit property in recognition of her right to maintenance and residence and therefore, rights conferred on her under a Will are blossomed into absolute rights by virtue of Section 14(1) of the Hindu Succession Act and thus, the first defendant is entitled to dispose of the house property in a manner she likes and therefore the plaintiff is not entitled to question either the gift deed dated 23.03.2005 or the sale deed dated 17.05.2007. He would further submit that the defendant Nos.8 to 11 parted considerable amount of Rs. 62,00,000/- towards sale consideration and if they are prevented from dealing with the property in a manner they like, it would cause great hardship and irreparable loss to them. In support of his submissions, reliance has been placed on the following decisions:
1. Mangat Mal v. Punni Devi .
2. C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil .
3. Gumpha v. Jaiba .
4. V. Tulasamma v. Sesha Reddy .
5. Ram Kali v. Choudhri Ajit Shankar .
6. Komireddy Venkata Narasamma v. K. Narasimha Murthy .
7. Bhoomireddy Chenna Reddy v. Bhoospalli Pedda Verrappa .
8. Chandrika Singh v. Sarjug Singh 2007 (1) HLR 471.
9. Sharad Subramanyan v. Soumi Mazumdar .
16. We do not wish to make the judgment bulky by referring to the proposition of law laid down by the Supreme Court and our High Court in all the above referred decisions. It is suffice to say the proposition of law laid by the three Judge bench of the Supreme Court in V. Tulasamma's case , wherein it has been 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 Sections 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 properly, 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 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 Section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of Section 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by Section 14(1) or in a way so as to become totally inconsistent with the main provision.
(4) Sub-section (2) of Section 14 applies to instruments, decrees, awards, gifts, etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to conform, undone, declare or recognise pre-existing rights. In such cases a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a 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 enlarged into an absolute one by force of Section 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of Sub-section (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee.
(5) The use of express terms like 'property acquired by a female Hindu at a partition', 'or in lieu of maintenance', 'or arrears of maintenance', etc. in the Explanation to Section 14(1) clearly makes Sub-section (2) inapplicable to these categories which have been expressly excepted from the operation of Sub-section (2).
(6) The words 'possessed by' used by the Legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title.
(7) That the words 'restricted estate' used in Section 14(2) are wider than limited interest as indicated in Section 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the, transferee.
17. The proposition of law laid in V. Tulasamma's case came to be referred in Gumpha's case . A distinction has been made in Gumpha's case with regard to acquisition of property by a female Hindu under a Will. Paras 11 and 12 of the cited judgment reads as hereunder:
11. Acquisition of property under a will is not mentioned under Sub-Section (1). It squarely falls under Sub-section (2). Would it make any difference if the testator after coming into force of the Act creates a restricted estate and provides for maintenance under the will? Can it be said to fall under any of the clauses mentioned in the explanation appended to Sub-section (1).
12. Section 14 reads as under:
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 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 stridhan 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.
The explanation widens the ambit of Sub-section (1) and extends it to any acquisition mentioned in it and by the first part the operation of Sub-section (1) is extended to both moveable and immoveable properties. The second part then enumerates the manner of acquisition. It includes inheritance and device; partition; in lieu of maintenance or arrears of maintenance; gift from any whether relation or not before, at or after her marriage; by her own skill or exertion; by purchase; by prescription; in any manner whatsoever; property held by her as stridhan immediately before the commencement of this Act. It does not include acquisition by will. That is in conformity with Section 30 of the Act. Otherwise it would have given rise to conflict between the property disposed of by a Hindu by a will creating limited interest and the acquisition of interest by a female under Section 14(1). None of these acquisitions are capable of creating any difficulty. But the acquisition in lieu of maintenance or arrears of maintenance and in any manner whatsoever needs elucidation. Use of words In lieu of or 'arrears of appear to be significant. The legislature as explained earlier was aware of absolute power of a Hindu to bequeath his property. But this right did not exist in joint family property or in various other properties under customary law. That has now been specifically recognised by Section 30. A Hindu can bequeath his interest even in joint Hindu property. But what is its effect on the right of his widow if the testator gives only right of maintenance. Can it be said to be in lieu of maintenance? The answer is simple. The legislature then would have used the words, 'for maintenance' and not instead of 'or in lieu of maintenance'. That could not have been the purpose. Under the Act, a female unlike customary law is an heir. She inherits the property in her own right. The expression 'in lieu of maintenance' or 'arrears of maintenance' would thus become inapplicable. Apart from it a right of maintenance under a will after 1956 would fall under Sub-section (2) as even on ratio in Tulasamma's it would be creation of right for the first time and not in recognition of pre-existing right. Even the expression in any manner whatsoever cannot be of any help for deciding the right and interest of a female Hindu acquired under a will. The expression is no doubt very wide but its width cannot be extended to those acquisitions which are specifically dealt with by Sub-section (2). Its operation has to be confined to such an acquisition which is not covered by Sub-section (2) or any of the clauses of the explanation. It is true that the explanation is not exhaustive as is clear from the use of the word 'includes' but its ambit cannot be stretched so as to nullify the effect of Sub-section (2). A reading of the two sub-sections together indicates that even though the law was revolutionized and a female Hindu was made an absolute owner in respect of any property acquired by her either before or after the date of enforcement of the Act yet the law did not intend to confer a higher and better right than what was enjoyed by a male Hindu. In Tulasamma cases it was held by this Court that a female Hindu could acquire rights under Section 14(1) only if she was possessed of the property and that possession was by some legal authority. To put it differently a trespasser or a female Hindu who cannot establish any right in the property of which she was possessed could not acquire any right. (Eramma v. Verrupanna (14 supra); Kuldip Singh v. Surain Singh (15 supra) and Dindayal v. Rajaram (16 supra)). It necessarily follows that the possession must be founded on some basis which may be acceptable in law and the right that she acquires under Section 14 depends on the nature of possession she enjoyed over the property. Consequently if a female Hindu acquires possession after the enforcement of the Succession Act and that possession was traceable to an instrument or a document described in Sub-section (2) then she could not get higher right than what is stipulated in the document itself. The purpose and the legislative intention which surfaces from a combined reading of the two sub-sections is that it attempts to remove the disability which was imposed by the customary Hindu Law on acquisition of rights by a female Hindu but it does not enlarge or enhance the right which she gets under a will giving her a limited estate under Section 30 of the Act.
18. In Mangat Mal's case (1995) 6 SCC 88, the Supreme Court held that maintenance, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing, for the course of the lady's life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a lift interest in property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Section 14(1).
19. Learned senior counsel appearing for the respondents 8 to 11 (Defendants 8 to 11) laying much emphasis on the decision of V. Tulasamma's case submits that the first defendant was given the ground floor and the first floor of the house in recognition of her pre-existing right of maintenance and residence and therefore, Section 14(1) of the Hindu Succession Act attracts making her limited estate blossomed into full ownership.
20. The contention of the learned senior counsel appears to be sound on first blush, but on close scrutiny of the covenants of the Will dated 23.03.2005 executed by Krishnachar, we do not detain ourselves long to reject the same. The covenants in respect of the suit property have been detailed in the afore said paras of this judgment. The intention of the testator is very clear and there is no scope for any ambiguity that what he conveyed to the first defendant is only restricted rights which mean that she can enjoy the ground and first floors of the suit house during her life time. The three Judge bench of the Supreme Court in Mrs. Karmi v. Amru held that where only life estate is conferred on a Hindu woman under the Will, she cannot claim to have become absolute owner under the Hindu Succession Act. The proposition of law laid down in Mrs. Karmts case came to be followed by a Division Bench of our High Court in P. Achuta Rao's case of the judgment in P. Achuta Rao's case needs to be noted and it is thus:
The facts in the present case are exactly similar to the facts in the Supreme Court case discussed above. China Mahalakshmamma having been given the lift estate in the suit property under the will of her father-in-law her right would be governed only by the terms of the will as provided under Sub-section (2) of Section 14 and Sub-section (1) of Section 14 is not attract. In view of the Supreme Court decision the Bench decision of this Court referred to above is no longer good law. Following the Supreme Court decision, we hold that the life estate given to China Mahalakshmamma under Ex. B-21 will is not enlarged to an absolute estate on coming into force of the Hindu Succession Act. Therefore, the appellants cannot claim any title to the suit property on the basis of the will Ex. A-5 executed by China Mahalakshmamma.
21. To appreciate the proposition of law laid down by the Division Bench of our High Court in the above referred case, the facts of the case therein are required to be noted. The suit property viz., the Salt Pans, originally belonged to one M. China Sanyasayya Chetti. Narasimhulu Chetti was his adopted son. Chinna Mahalakshmamma, under the will of whom the plaintiffs are claiming the suit property, was the wife of that Narasimhulu Chetti. China Sanyasi Chetti executed a will certified copy of which is Ex. B-21 dated 12.8.1917 bequeathing the suit property in favour of his daughter-in-law. He died on 6.2.1925. Narasimhulu Chetti died in the year 1929. During her lifetime China Mahalakshmamma executed a will Ex. A-5 dated 10.3.1964 bequeathing the suit property to the plaintiffs and died on 1.6.1965. The defendants are the agnates of China Sanyasayya Chetty. They contested the suit alleging that China Mahalakshmamma had no rights of bequest in the suit property. The right given to her under Ex. B-21 will, being the life estate, that right came to an end on her death.
22. In Sadhu Singh's case , the Supreme Court considered the earlier decisions in V. Tulasamma's case and Karmi's case and held that any acquisition of property (not right) by a female hindu after coming into force of the Act cannot normally attract Section 14(1) of the Act. It would depend on the nature of the right acquired by her. If she takes it as an heir under the Act, she takes it absolutely. If while getting possession of the property after the Act, under a devise, gift or other transaction, any restriction is placed on her right, the restriction will have play in view of Section 14(2) of the Act.
23. Coming to the facts of the case on hand, the suit house is the self-acquired property of Krishnachar. Under Section 30 of the Hindu Succession Act, any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus. The wide and large power of a Hindu to bequeath a property to anyone as it existed before the Act came into force and determine the nature of an estate that could be created by him has, thus, now been statutorily recognized. The language is clear and explicit. It creates absolute power in a Hindu to dispose of his property by will. The section does not impose any restriction, express or implied, except that he should be capable of disposing of such property. The use of expansive language made wider by explanation leaves no room for doubt that the legislature unmistakably intended that any property disposed of by will by a Hindu who is capable of disposing of such property shall be subject to restrictions and conditions imposed by the testator himself in the will.
24. The covenants of the Will of the testator-Krishnachar do not give any scope for ambiguity that he had given life estate to his wife-first defendant. There is nothing in the WILL to indicate that the life estate has been given to the first defendant-Kamala Bai in recognition or in lieu of her pre-existing right. It is beyond the pale of controversy that the suit house is the self-acquired property of the testator and he has every right to convey the same to any one he likes. He cautiously granted restrictive rights to the first defendant who is his wife and absolute rights to his sons who have been arrayed as the plaintiff and 7th defendant in the suit. Therefore, the limited estate granted to the first defendant does not expand to absolute estate. It is the property, which the 1st defendant got without any pre-existing right. The first defendant cannot take shelter under Section 14(1) of the Hindu Succession Act since it is wholly inapplicable to the facts and circumstances of the case on hand. The first defendant accepted the restricted rights in the suit house in pursuance of the WILL of her husband and therefore rights she got would come within the purview of Sub-section (2) of Section 14 and Sub-section (1) of section 14 of the Act. The trial Court has not at all considered the intention of the testator as spelt out from the covenants of the Will and thereby erred in dismissing the applications filed by the appellant/plaintiff seeking necessary interim reliefs. The plea of respondents 8 to 11 (D8 to D11) that they parted considerable amount and thus granting any interim relief in favour of appellant/plaintiff would cause substantial loss to them has no merit since they purchased the property with eyes wide open as to the factual aspect of D1 got limited rights under the WILL executed by T.S. Krishnachar. The appellant/plaintiff is able to make out a prima facie case and balance of convenience in his favour. If interim reliefs as sought for by the appellant/plaintiff are not granted, there is every likelihood of resulting irreparable loss to him. The appellant/plaintiff is able to satisfy all the necessary three ingredients, which entitle him for the reliefs sought for.
25. Accordingly, both the civil miscellaneous appeals are allowed setting aside the common order dated 12.11.2007 passed on applications being I.A. Nos. 2554 and 2555 of 2007 in O.S. No. 300 of 2007 on the file of II Additional Chief Judge, City Civil Court, Hyderabad, and consequently, I.A. Nos. 2554 and 2555 of 2007 in O.S. No. 300 of 2007 shall stand allowed granting the interim reliefs as sought for therein. No order as to costs.