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Oruganti Ramanaiah,S/O Appaiah, … vs Nannapuneni Gangadhara Rao Died … on 29 January, 2018

THE HONBLE SRI JUSTICE A.V.SESHA SAI

A.S.No.392 of 1998

29.01.2018

Oruganti Ramanaiah,S/o Appaiah, aged about 72 years,R/o.Nidubrolu, Ponnur Municipality,Guntur District…Appellant

Nannapuneni Gangadhara Rao Died per LRsS/o Audaiah, Hindu, aged 62 years,R/o. Nidubrolu, Ponnuir Municipality,Guntur Distr

GIST:

HEAD NOTE:

Counsel for the appellant:Sri S.Subba Reddy

Counsel for the fourth Respondents: Sri Srinivas Bodduluri

? Cases referred
AIR 1975 GUJARAT 126
2 AIR 1992 AP 1 (DB)
3 (2017) 0 SUPREME (SC) 1180
4 2016 (2) ALD 52 (DB)
5 (2016) 2 SCC 56
6 AIR 1977 SC 1944
7 AIR 1987 SC 1493

THE HONBLE SRI JUSTICE A.V.SESHA SAI
A.S.No.392 of 1998

JUDGMENT:

The defendant in O.S.No.42 of 1989 on the file of the Court of the
Subordinate Judge, Guntur is the appellant in the present appeal suit,
preferred under Section 96 of the Code of Civil Procedure.

2. This appeal suit is directed against the judgment and decree dated
28.11.1997 passed by the said Court in the said suit.

3. First respondent herein instituted the said suit for declaration of title
and possession. Plaint schedule property is a house property in an extent of
Ac.0-02 cents situated at Nidubrolu, Ponnur Mandal, Guntur District.

4. The case of the plaintiff is that, plaintiffs father is one
Sri Nannapuneni Adeyya and that the said Adeyyas sister, one
Smt.Seethamma was given in marriage to Sri Pamulapati China Ankineedu
and the said Sri Pamulapati China Ankineedu and Seethamma had no issues.
Sri Pamulapati China Ankineedu executed Ex.A.1 Registered Will dated
20.05.1920, giving life interest to his wife, Smt.Seethamma and vested
remainder to the plaintiffs father, Sri Nannapuneni Adeyya (brother of
Smt.Seethamma). Sri Pamulapati China Ankineedu died in the year 1920.
Smt. Seethamma executed Ex.A.2 relinquishment deed dated 09.11.1939 in
favour of Nannapuneni Adeyya i.e., plaintiffs father. Thereafter,
Sri Nannapuneni Adeyya had given half of his property to his brother
Sri Nannapuneni Ankineedu. On the same day i.e., on 26.01.1940,
Sri Nannapuneni Adeyya and his brother Sri Nannpuneni Ankineedu along
with Gangaiah (Plaintiff) executed Ex.A.4 Registered Gift Deed in favour of
their sister Smt.P.Seethamma for plaint property and certain other properties,
giving life interest with vested remainder in favour of Sri Nannapuneni
Adeyya and Nannapuneni Ankineedu and Smt.P.Seethamma enjoyed the
property and executed Ex.A.7 unregistered Will dated 15.10.1984 in favour of
the plaintiff and Smt.P.Seethamma died on 19.10.1984 and thereafter the
disputes arose between the plaintiff and his father Adeyya which led to
litigation before the Court of the District Munsiff, Ponnur.

5. According to the plaintiff, despite the same, defendant by way of
Ex.B.7 registered sale deed dated 09.01.1989, purchased the subject
property without being supported by any valid consideration and that the
defendant trespassed into the plaint schedule property on 06.04.1989, which
led to the filing of the suit on 15.04.1989.

6. A written statement was filed by the defendant and in the written
statement defendant, while pleading ignorance of Ex.A.1 to A.4, pleaded that
the plaintiffs family and the family of his father got separated long time back;
that Smt.Seethamma used to reside in the house of the plaintiffs father till
her death; that the suit house was in possession and enjoyment of Adeyya all
along; that the defendant purchased the same by way of Ex.B.7 Registered
Sale deed and his name was also mutated in municipal records vide
proceedings dated 06.09.1989; that the alleged sale agreement dated
14.10.1981 is false; that Smt.P.Seethamma had no right to execute Ex.A.7
Will dated 15.10.1984 and she had only life interest with vested remainder to
Adeyya and his brother as per Ex.A.1 Registered Will dated 20.05.1920,
Ex.A.2 dated -9/11/1939 and Ex.A.3 dated 26.01.1940.

7. On the basis of the pleadings available on record, the Trial Court
framed the following issues:

1. Whether the plaintiff is entitled for a declaration and possession
as prayed for?

2. Whether the will dated 20.05.1920 executed by Sri Pamulapati
China Ankineedu is true and valid?

3. Whether the relinquishment deed executed by Smt.Seethamma
dated 09.11.1935 is true and valid?

4. Whether the registered Settlement Deed dated 26.01.1940 is
true and valid?

4 (a) Whether the Registered Settlement Deed dated 26.01.1940
executed by Sri Nannapuneni Adeyya in favour of Pamulapati
Seethamma, wife of Pamulapati China Ankineedu is true and
valid?

5. Whether the Will dated 15.10.1984 is true and valid?

6. To what relief?

8. In order to substantiate his case, the plaintiff, apart from examining
himself as PW.1, also examined PWs.2 to 4 and exhibited Exs.A.1 to A.50.
On the other hand, the defendant examined himself as DW.1 and also
examined DWs.2 and 3 on his behalf and filed Exs.B.1 to B.7 documents.
The learned Subordinate Judge, by way of Judgment and Decree dated
20.11.1997, decreed the suit, declaring the plaintiff as absolute owner of the
plaint schedule property while directing the defendant to deliver possession
of the plaint property to the plaintiff. This appeal suit, preferred under
Section 96 of the Code of Civil Procedure assails the validity and legal
sustainability of the said judgment and decree, rendered by the learned
Subordinate Judge.

9. Heard Sri S.Subba Reddy, Advocate, appearing for
Sri V.L.N.G.K.Murthy, learned counsel for the defendant/appellant and
Sri Srinivas Bodduluri, Advocate, representing Sri B.Adinarayana Rao, learned
counsel for the respondents apart from perusing the material available on
record.

10. Submissions/contentions of Sri S.Subba Reddy:
10.1. The impugned judgment and decree are contrary to law, weight
of evidence and probabilities of the case?

10.2. The findings recorded by the learned Subordinate Judge on the
applicability of Sub-section (1) of Section 14 of the Hindu
Succession Act, 1956 are highly erroneous and contrary to law.
10.3. The transaction covered by Ex.A.4 Gift Deed dated 26.01.1940
executed by Sri Nannapuneni Adeyya and others in favour of
Smt.P.Seethamma falls under sub-Section (2) of Section 14 of
the Hindu Succesion Act, 1956, as such, the learned
Subordinate Judge grossly erred in decreeing the suit.
10.4. The learned subordinate Judge ought not to have believed
Ex.A.7 will dated 15.10.1984 said to have been executed by
Smt.P.Seethamma in favour of the plaintiff in view of existence
of the surrounding suspicious circumstances.
10.5. In view of the discrepancies in the evidence adduced on behalf
of the plaintiff, the findings recorded by the learned Judge on
Ex.A.7 Will dated 15.10.1984 are highly erroneous.

In support of his submissions and contentions, learned counsel for the
Appellant places reliance on the judgements of the Honble Apex Court in
KUSUMGAURI v. UMIBEN AND OTHERS , KOTA VARAPRASADA RAO
v. KOTA CHINA VENKAIAH , RANVIR DEWAN v. RASHMI KHANNA
and KRISHNA KUMAR v. SHAH AND ANOTHER .

11. Submissions/contentions of Sri B.Srinivas Rao:
11.1. The judgment rendered by the learned Subordinate Judge is in
accordance with law and the learned Judge decreed the suit
after completely and elaborately considering the entire material
available on record, as such, the judgment does not warrant
any interference of this Court under Section 96 of the Code of
Civil Procedure.

11.2. The instant case, falls under sub-section (1) of Section 14 of the
Hindu Succession Act and the limited estate created in favour of
Smt.P.Seethamma by way of Ex.A.4 document dated
26.01.1940 blossomed into absolute estate of
Smt. P.Seethamma in view of Section 14 (1) of the Hindu
Succession Act and Sections 21 and 22 of the Hindu Adoption
and Maintenance Act.

11.3. The findings of the learned Judge on Ex.A.7 Will dated
15.10.1984 are in accordance with law.

In support of his submissions, learned counsel for the respondents
relied on the judgments of the Honble Apex Court in JUPUDY PARDHA
SARATHY v. PENTAPATI RAMA KRISHNA AND OTHERS ,
VADDEBOYINA TULASAMMA AND OTHERS v. VADDEBOYINA SESHA
REDDI (DEAD) BY LRS and JAGANNATHAN PILLAI v.

KUNJITHAPADAM PILLAI AND OTHERS .

12. In the above backdrop, now the points that emerge for consideration
of this Court are:

1. Whether the findings of the learned Subordinate Judge with
regard to enlargement of limited estate created in favour of
Smt.P.Seethamma by way of Ex.A.4 into absolute estate is in
accordance with Section 14 of the Hindu Succession Act, 1956?

2. Whether the findings of the learned Subordinate Judge on
Ex.A.7 Will is in accordance with law?

3. Whether the plaintiff proved successfully by the execution of
Ex.A.7 Will as per the provisions of Indian Evidence Act and
Indian Succession Act?

13. Point No.1:

The object of Section 14 of the Hindu Succession Act 1956 is the
welfare of women and protection of their property rights and to ensure social
security to the women. Having regard to the object of this legislation a
liberal consideration needs to be given in favour of and in the direction of
advancement of such rights. The present issue on hand is required to be
examined in the light of the said legislative intent.

14. Admittedly, the subject property of the suit which is a house property
originally belonged to one Late Sri Pamulapati China Ankineedu and he
married one Smt.P.Seethamma (sister of the father of the plaintiff namely
Sri Nannapuneni Adeyya). The said couple had no issues. During his life
time, the said Pamulapati China Ankineedu executed Ex.A.1 Registered Will
dated 20.05.1920, giving life interest to his wife Smt.P.Seethamma and
vested remainder to the plaintiffs father, Sri Nannapuneni Adeyya. The said
Pamulapati China Ankineedu died in the year 1920. Smt. Seethamma
executed Ex.A.2 relinquishment deed dated 09.11.1929 in favour of
Nannapuneni Adeyya, plaintiffs father. Thereafter, the said Adeyya executed
Ex.A.3 Registered Settlement Deed dated 26.01.1940, giving half of the
property to his brother Sri Nannapuneni Ankineedu. On the same day, i.e.,
on 26.01.1940 Sri Nannapuneni Adeyya and his brother Sri Nannupuneni
Ankinedu and Nannapuneni Gangaiah (Plaintiff) executed Ex.A.4 Ex.A.10
Registered Gift dated 26.01.1940 in favour of Smt. P.Seethamma in respect
of plaint property and certain other properties, giving life interest to Smt.
P.Seethamma with vested remainder to Nannapuneni Adeyya and his brother
Nannupuneni Ankinedu.

15. Admittedly, the property is not a new property given to Seethamma.
It is a property belonging originally to Pamulapati China Ankineedu who gave
his property to his wife Smt.Seethamma by way of Ex.A.1 registered Will
dated 20.05.1920. Sri Pamulapati China Ankineedu had obligation to
maintain his wife Smt.P.Seethamma. Even as per the evidence of defendant
as DW.1, Smt. Sethamma used to rent the subject house during her absence
and as per the provisions of Hindu Adoption and Maintenanance Act also the
persons who got the property from the persons who have obligation to
maintain are equally obligated to maintain the defendants. In the instant
case, the brothers of Seethamma who got the property from the husband of
Seethamma have obligation to maintain their sister as per the provisions of
Sections 21 and 22 of Hindu Adoption and Maintenance Act read with Section
3 (f) of the Hindu Succession Act, 1956 and item IV of the schedule to the
said legislation.

16. In fact, the Court below placed reliance on the pronouncements of the
Honble Apex Court in the case of JAGANNATHAN PILLAI (Supra 7) and
taking into consideration the fact that Seethamma regained the property by
way of Ex.A.10 which was earlier given to her by her husband by way of
Ex.A.1, held that the limited right of Smt.Seethamma blossomed into absolute
right in favour of Smt.Seethamma. In this connection, it may be appropriate
to refer to the judgments cited by the learned counsel for the appellants.

17. In KUSUMGAURI (supra 1), the Honble Apex Court at paragraph 3,
held as under:

3. The answer to the question raised before us mainly
depends upon the interpretation of section 14(1) of the Act
which is as follows :

“14. (1) : An 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 device, 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 well or any other
instrument or under a decree or order of Civil Court or under
an award where the terms of the gift, will or other instrument
or the decree, order or award prescribed a restricted estate in
such property.”

The object of the section is to extinguish the estate called
‘limited estate’ or widow’s estate in Hindu law and to make a
Hindu female who under the old law would be a limited
owner, a full owner of the property with all the power of
disposition and to make the estate heritable by her own heirs
and not revertable to the heirs of the last male holder. The
legislature desired equality of rights to all males and females.
In cases where a Hindu Trial was entitled to obtain ‘full
ownership of a property, Hindu female could not be
condmned to, hold the property only as a limited owner. It is
to, be noted that it is not the object of the Act that in cases
where a Hindu male can bold property only as a limited
owner, a Hindu female should hold the property as a full
owner. Sub-section (1) of section 14 of the Act enlarges the
right of limited ownership of a Hindu female and sub-section
(2) thereof, has been enacted to provide that in cases falling
there under a Hindu female is, not to get a higher right than
a Hindu male. The two sub-sections of section 14 have to be
read together. To put in other words, the section has to be
read as a whole in order to understand the legislative intent.
In order that sub-section (1) of section 14 may apply the
following 3 conditions must be satisfied: (1) the property
must be possessed by a Hindu female; (2) the property
possessed by her must have been acquired; and (3) she must
have been a limited owner thereof. The expression
“Possessed by” used in section 14(1) came for interpretation
before the Supreme Court in Mangal Singh v. Smt. Rattno,
AIR 1937 SC 1786 and the Court pointed out that the
expression used in the section is ‘possessed by” and not “in
possession of”. The Court pointed out that word “Possessed”
in S. 14 has been used in broad sense and in the context
means the state of owning or having in one’s power. The
word covered cases wherein a Hindu widow was in actual or
constructive possession of the property, it also covered a
case wherein a Hindu female may not be in actual or physical
or constructive possession but she has a right to recover
actual possession or constructive possession because her
case then will be covered by the expression “the state of
owning”. What the Court held was that the word “possessed’
covered the cases wherein a Hindu female has the actual or
constructive possession or hag possession in any form
recognised by law. This decision of the Supreme Court was
followed in Badari Pershad v. Smt. Kanso Devi, AIR 1970 SC
1963. In the later decision the Court also held that the word
“acquired” used in sub-section (1) of section 14 has also to
be given widest possible meaning because of the explanation
attached to the sub-section. Now the word “acquired” implies
that a Hindu female got property or that the property came
to her or the property fell to her with some right, title or
interest by virtue of which she would claim exclusive
possession. Explanation 1 to subsection (1) has to he noticed.
The said explanation sets out various modes of acquisition of
property by a female Hindu. It indicates that the section
applies only to property to which a Hindu female has
acquired some kind of title or interest however restricted
nature of her interest may be. The expression “in any officer
manner whatsoever” itself suggest, that the expression has
not to be construed on the basis of the principle of
adjustments generis or that the words must take colour from
previous expression used in the section but has to be
construed widely. In short section 14 contemplates cases in
which a female Hindu has acquired the property under some
vestige of title, bow-ever restricted it might be. The decisions
of the High Courts were not unanimous as in with cases can
fall under sub-section (1) of section 14 and what cases shall
fall under section 14. But this point is now settled by the
Supreme Court in Badri Pershad case (supra). The Court
observed that sub-section (2) of section 14 is more in the
nature of a proviso or an exception to sub-section (1) and
comes into operation only if acquisition in any of the methods
indicated therein is made for first time, without there being
any pre-existing right in the female Hindu who is in
possession of property. Sub-section (2) of section 14 would
apply to cases in which the instrument mentioned therein is
the source or foundation of the right or title to the property.
It must be noticed that the explanation appended to sub-
section (1) of’ section 14 assumes that the property acquired
by a Hindu female in lieu of maintenance is~ a property of
limited ownership. This explanation is important because of
Section 4 of~ the Act provides, so far relevant, that save as,
otherwise expressly provided any text, rule or interpretation
of Hindu law or any custom or usage as part of that law in
force immediately before the commencement of this Act shall
cease to have effect to any matter for which provision is
made in this Act.

18. In KOTA VARAPRASADA RAO (supra 2), the Honble Apex Court at
paragraphs 26, 31 and 41, held as under:

26. SIRCAR expresses the opinion that a married daughter is
ordinarily to be maintained in her husband’s family, but if
they are unable to maintain her, she is entitled to be
maintained in her father’s family. (8th Edn. p. 534).

31. The Supreme Court in V. Tulasamma v. V. Sesha Reddi,
AIR 1977 SC 1944, had the occasion to interpret the above
provision. The Supreme Court summarising the legal
conclusions after an exhaustive consideration of the
authorities on the question of law as to the interpretation of
Section 14(1) and (2) of the Act, stated thus (at pp. 1977-78
of AIR):

“(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…..

(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 pre-existing rights. In
such cases a restricted estate in favour of the female is
legally permissible, and S. 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 to 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 S. 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-s. (2) and would be governed
by S. 14(1) despite any restrictions placed on the powers of
the transferee.

(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….
(7) That the words “restricted estate” used in S. 14(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.”
In the instant case, the settlement deed, Ex. B-l, specifically
states that the brother –executants have handed over to Adi
Laksh-mamma possession of the suit house on 1-4-1939 with
a view to enable her to lease-out the house and live on the
income arising therefrom, since she had no source of living
and was being maintained by them. Thus, the statement of
the suit property on Adi Lakshmamma was in lieu of her
maintenance and to enable her to live on the lease-hold
income from the said property. Thus, the property having
been settled in lieu of her maintenance, the instrument (Ex.
B- 1) is to be taken out of the ambit of S, 14(2) and would be
governed by S. 14(1) despite the restriction of life-estate on
the powers of Adi Lakshmamma.

41. Before parting with this, we would rather intend to
express that the view we have taken herein as regards the
pre-existing right of the daughter, a destitute widowed
daughter, against the father and brothers for her
maintenance by referring to the texts and precepts earlier to
the codification of the law is absolutely in consonance with
the intendment of the Legislature behind incorporating
Section 22 of the Hindu Adoptions and Maintenance Act,
1956. Section 22 makes it mandatory for the heirs of a
deceased Hindu to maintain the dependants, one such being
the widowed daughter, of the deceased out of the estate
inherited by them from the deceased. The Supreme Court
also had the occasion to interpret Sections 21 and 22 of the
Hindu Adoptions and Maintenance Act in Raja Gopala Rao v.
Sitharam Amnia, dealing with the rights of a concubine for
maintenance from the estate of the deceased paramour. The
Supreme Court while observing that if the rights of
maintenance were acquired by her or illegitimate sons of the
deceased, those rights are not affected by the provisions of
Ss. 21 and 22 of the Act, held (at p. 1973 of AIR):
“Now, before the Act came into force, rights of maintenance
out of the estate of a Hindu dying before the commencement
of the Act were acquired and corresponding liability to pay
the maintenance was incurred under the Hindu Law in force
at the time of his death. It is well recognised rule that a
statute should be interpreted, if possible so as to respect
vested rights, and such a construction should never be
adopted if the words are open to another construction. See
Craies on Statute Law, 6th Edn., (1963) p. 397. We think that
Ss. 21 and 22 read with S. 4 do not destroy or affect any
right of maintenance out of the estate of a deceased Hindu
vested on his death before the commencement of the Act
under the Hindu Law in force at the time of his death.”
We have also had in mind by this to express that the
obligation of the father against the daughter for her
maintenance, since not touched by the codified law, remains
as it is unaffected since nothing contra is stated in the Act.

19. In RANVIR DEWAN (supra 3), the Honble Apex Court at paragraphs
41 to 48, held as follows:

41. Reading of the aforementioned principle of law laid down
in the cases of V. Tulasamma and Sadhu Singh (supra), it is
clear that the ambit of Section 14(2) of the Act must be
confined to cases where property is acquired by a female
Hindu for the first time as a grant without any pre-existing
right, under a gift, will, instrument, decree, order or award,
the terms of which prescribe a restricted estate in the
property. Where, however, property is acquired by a Hindu
female at a partition or in lieu of right of maintenance, it is in
virtue of a pre-existing right and such an acquisition would
not be within the scope and ambit of Section 14(2) of the
Act, even if the instrument, decree, order or award allotting
the property prescribes a restricted estate in the property.

42. Applying the principle laid down in the aforementioned
two cases to the facts of the case on hand, we are of the
considered opinion that the case of plaintiff No.2-Mrs. Pritam
does not fall under Section 14 (1) of the Act but it squarely
falls under Section 14 (2) of the Act. In other words, in our
view, in the facts of this case, the law laid down in Sadhu
Singhs case(supra) would apply.

43. A fortorari, plaintiff No.2-late Mrs.Pritam received only
life interest in the suit house by the Will dated 24.06.1986
from her late husband and such life interest was neither
enlarged nor ripened into an absolute interest in the suit
house and remained life interest, i.e., restricted estate till
her death under Section 14(2) of the Act. This we say for
following factual reasons arising in the case.

44. First, the testator-Mr.Dewan being the exclusive owner of
the suit house was free to dispose of his property the way he
liked because it was his self earned property.

45. Second, the testator gave the suit house in absolute
ownership to his son and the daughter and conferred on
them absolute ownership. At the same time, he gave only
life interest to his wife, i.e., a right to live in the suit house
which belonged to son and daughter. Such disposition, the
testator could make by virtue of Section 14 (2) read with
Section 30 of the Act.

46. Third, such life interest was in the nature of restricted
estate under Section 14(2) of the Act which remained a
restricted estate till her death and did not ripen into an
absolute interest under Section 14(1) of the Act. In other
words, once the case falls under Section 14(2) of the Act, it
comes out of Section 14(1). It is permissible in law because
Section 14(2) is held as proviso to Section 14(1) of the Act.

47. Fourth, the effect of the Will once became operational
after the death of testator, the son and the daughter
acquired absolute ownership in the suit house to the
exclusion of everyone whereas the wife became entitled to
live in the suit house as of right. In other words, the wife
became entitled in law to enforce her right to live in the suit
house qua her son/daughter so long as she was alive. If for
any reason, she was deprived of this right, she was entitled
to enforce such right qua son/daughter but not beyond it.
However, such was not the case here.

48. Fifth, the testator had also given his other properties
absolutely to his wife which enabled her to maintain herself.
Moreover, a right to claim maintenance, if any, had to be
enforced by the wife. She, however, never did it and rightly
so because both were living happily. There was, therefore, no
occasion for her to demand any kind of maintenance from
her husband.

20. In KRISHNA KUMAR (supra 4), a Division Bench of this Court, at
paragraph 18, held as follows:

18. Before proceeding further, it is necessary to refer to the broad
principles, which are relevant for appreciation of evidence in regard
to proof or otherwise of a Will. In the decision in Pinnaka
Hanumantha Rao (died per L.R) and two Ors. V. Garlapati
Dhanalakshmi @ Andallu MANU/AP/0006/2007 : 2007 (2) ALD 435,
this Court having considered the ratios in various precedents on
the subject had formulated the principles that emerged from the
precedents as under:

“30. From the various precedents cited by the learned Counsel
referred to above, the following principles broadly emerge.

1. Whether the Will set up by the propounder is proved to be the
last Will of the testator has to be decided in the light of Sections
67, 68, 45 and 47 of the Evidence Act and Sections 59 and 63 of
the Indian Succession Act.

2. A Will has to be proved like any other document except as to the
special requirements of attestation prescribed by Section 63 of the
Indian Succession Act.

3. Proof with mathematical certainty is not expected and the test
to be applied would be the usual test of the satisfaction of the
prudent mind.

4. The propounder would be called upon to show by disinterested,
satisfactory and sufficient evidence that the Will was signed by the
testator, that the testator at the relevant time was in a sound and
disposing state of mind free from all extraneous influences, that he
understood the nature and effect of the dispositions and put his
signature to the document of his own free Will and that he had
signed it in the presence of two witnesses who attested in his
presence and the presence of each other.

5. The onus on the propounder to prove the due and valid
execution of the Will can be taken to be discharged on proof of the
essential facts.

6. The execution of the Will may be surrounded by suspicious
circumstances like,–

(a) The signature of the testator may be very shaky and doubtful
or not appear to be his usual signature.

(b) The condition of the testator’s mind may be very feeble and
debilitated.

(c) The dispositions made in the Will may be unnatural, improbable
or unfair in the light of relevant circumstances like exclusion of or
absence of adequate provision for the natural heirs without
reasons.

(d) The dispositions may not appear to be the result of the
testator’s free Will and mind.

(e) The propounder takes a prominent part in the execution of the
Will conferring substantial benefit on him.

(f) The testator used to sign blank papers.

(g) The Will did not see the light of the day for long.

(h) Incorrect recitals of essential facts.

(i) The unregistered Will challenged as forged comes from the
custody of major beneficiary.

7. What circumstances would be regarded as suspicious cannot be
precisely defined or exhaustively enumerated and that inevitably
would be a question of fact in each case.

8. Each and every circumstance is not a suspicious circumstance
and a circumstance would be suspicious when it is not normal or is
not normally expected in a normal situation or is not expected of a
normal person.

9. All such legitimate suspicions should be completely removed by
the propounder before accepting the document as the last Will of
the testator and satisfactory discharge of such initial onus is very
heavy and the test of satisfaction of judicial conscience is pivotal in
deciding the solemn question.

10. A Will is executed to alter the mode of succession and by the
very nature of things it is bound to result in either reducing or
depriving the share of a natural heir. If a person intends his
property to pass to his natural heirs, there is no necessity at all of
executing a Will.

11. A testator has the freedom to give his property to whomsoever
he likes and once it is established that the testator was free and
had a sound disposing mind, it is no longer the duty of the Court to
go further to inject its own ethics of what is or is not a moral or a
fair disposition according to its own standard.

12. No hard and fast or inflexible rules can be laid down for the
appreciation of the evidence and application of general and broad
principles would always depend on the facts and circumstances of
each case and on the nature and quality of the evidence adduced
by the parties.

13. Allegations of exercise of undue influence, fraud or coercion in
respect of the execution of the Will propounded have to be proved
by the person making such allegations.

14. Circumstantial evidence to prove the signature of the testator
can lead to a legitimate conclusion only if it leads irresistibly to the
inference that the person must have signed the document in
question, but the presumption of execution of the Will by the
testator on proof of the signature may be rebutted by proof of
suspicious and unnatural circumstances.

15. The registration of the Will by the testator will be a strong
circumstance to support the genuineness of the Will, but will not by
itself be sufficient to dispel all suspicions without subjecting the
evidence of registration to a close scrutiny.

16. Onus as a determining factor of a case can only arise if the
evidence pro and con is so evenly balanced that no conclusion can
be derived therefrom, but not when a determinate conclusion can
be arrived at after hearing and weighing the evidence.

17. The presumption under Section 90 of the Evidence Act in
respect of a Will 30 years old and produced from proper custody, is
one of due execution and attestation as well as of testamentary
capacity of the testator, but does not extend to the truth of the
contents of the Will.

18. To judge the credibility of the witnesses, the demeanour of the
witnesses, surrounding circumstances and the probabilities arising
out of the evidence and nature and contents of the document have
to be looked into.

19. It is more usual to call a known and reliable person, a friend or
a relation, to be a witness when a person is intending to execute a
Will and advantage may be taken of the accidental presence of
chance witnesses also in this connection.

20. It would be sufficient even if one attestor is examined, if he
speaks about all the required elements.

21. The Court has the power to compare the disputed signature
with the admitted signature, which power is available under
Section 73 of the Evidence Act, but it should not normally take
upon itself such responsibility and should leave the matter to the
wisdom of experts in the event of slightest doubt.

22. If the Court is capable of forming an opinion on the strength of
oral and documentary evidence by undertaking comparison under
Section 73 of the Evidence Act, the necessity to send the document
for expert’s opinion may not arise and the opinion rendered by an
expert being only a supporting material, the Court can come to its
own independent conclusion.

The above principles deduced from the cited precedents are only
enumerative and not exhaustive and their application to the facts
and circumstances of each case should be strictly contextual but
not mechanical.

The learned senior counsel for the appellants/defendants 1 and 2
had relied upon the following decisions in regard to proof of
execution of Will:

(i) Surendra Pal and others v. Dr. (Mrs.) Saraswati Arora and
Another MANU/SC/0289/1974 : (1974) 2 Supreme Court Cases

600. This decision deals with the guidelines and nature and extent
of burden of proof on the propounder and the duty of the
propounder to show that the Will was signed by the testator and
that the testator was at the relevant time was in a sound and
disposing state of mind, that he understood the nature and effect
of the dispositions, that he put his signature to the testament of his
own free will and that he has signed it in the presence of the two
witnesses who attested it in his presence and in the presence of
each other. In the cited decision, it was also laid down that when
the execution of the Will itself is surrounded by suspicious
circumstances, such as, where the signature is doubtful, the
testator is of feeble mind or is overawed by powerful minds
interested in getting his property, or where in the light of the
relevant circumstances the dispositions appear to be unnatural,
improbable and unfair, or where there are other persons for
doubting that the dispositions of the Will are not the result of the
testator’s free will and mind, in all such cases where there may be
legitimate suspicious circumstances those must be reviewed and
satisfactorily explained before the Will is accepted. It was finally
held that in the cited decision that ultimately it is the conscience of
the Court that has to be satisfied; as such the nature and quality of
proof must be commensurate with the need to satisfy that
conscience and remove any suspicion which a reasonable man
may, in the relevant circumstances of the case, entertain.

(ii) Meenakshiammal (dead) through L.Rs v. Chandrasekaran
MANU/SC/0953/2004 : (2005) 1 Supreme Court Cases 280. In this
decision, the Hon’ble Supreme Court referred to the ratios in the
decisions in Ryali Kameswara Rao v. Bendapudi Suryaprakasa Rao
(MANU/AP/0088/1962 : AIR 1962 AP 178) and Madhukar D.
Shende v. Tarabai Aba Shedage (MANU/SC/0016/2002 : (2002) 2
SCC 85) and had held in paragraph (21) as follows:
“In the case of Madhukar D. Shende v. Tarabai Aba Shedage
reported in [MANU/SC/0016/2002 : AIR 2002 SC 637], it has been
held as follows: “8. The requirement of proof of a Will is the same
as any other document excepting that the evidence tendered in
proof of a Will should additionally satisfy the requirement of
Section 63 of the Indian Succession Act, 1925 and Section 68 of
the Indian Evidence Act, 1872. If after considering the matters
before it, that is, the facts and circumstances as emanating from
the material available on record of a given case, the Court either
believes that the Will was duly executed by the testator or
considers the existence of such fact so probable that any prudent
person ought, under the circumstances of that particular case, to
act upon the supposition that the Will was duly executed by the
testator, then the factum of execution of Will shall be said to have
been proved. The delicate structure of proof framed by a judicially
trained mind cannot stand on weak foundation nor survive any
inherent defects therein but at the same time ought not to be
permitted to be demolished by wayward pelting of stones of
suspicion and supposition by wayfarers and waylayers. What was
told by Baron Alderson to the Jury in R. v. Hodge, 1838, 2 Lewis
CC 227 may be apposite to some extent “The mind was apt to take
a pleasure in adapting circumstances to one another and even in
straining them a little, if need be, to force them to form parts of
one connected hole; and the more ingenuous the mind of the
individual, the more likely was it, considering such matters, to
overreach and mislead itself, to supply some little link that is
wanting, to take for granted some fact consistent with its previous
theories and necessary to render them complete.” The conscience
of the Court has to be satisfied by the propounder of Will adducing
evidence so as to dispel any suspicions or unnatural circumstances
attaching to a Will provided that there is something unnatural or
suspicious about the Will. The law of evidence does not permit
conjecture or suspicion having the place of legal proof nor permit
them to demolish a fact otherwise proved by legal and convincing
evidence. Well founded suspicion may be a ground for closer
scrutiny of evidence but suspicion alone cannot form the
foundation of a judicial verdict positive or negative.

9. It is well-settled that one who propounds a Will must establish
the competence of the testator to make the Will at the time when
it was executed. The onus is discharged by the propounder
adducing prima facie evidence proving the competence of the
testator and execution of the Will in the manner contemplated by
law. The contestant opposing the Will may bring material on record
meeting such prima facie case in which event the onus would shift
back on the propounder to satisfy the Court affirmatively that the
testator did know well the contents of the Will and in sound
disposing capacity executed the same. The factors, such as the will
being a natural one or being registered or executed in such
circumstances and ambience, as would leave no room for
suspicion, assume significance. If there is nothing unnatural about
the transaction and the evidence adduced satisfies the requirement
of proving a will, the court would not return a finding of ‘not
proved’ merely on account of certain assumed suspicion or
supposition. Who are the persons propounding and supporting a
will as against the person disputing the will and the pleadings of
the parties would be relevant and of significance.”

(iii) In Sridevi v. Jayaraja Shetty MANU/SC/0065/2005 : (2005) 2
Supreme Court Cases 784, the relevant ratio was laid down as
follows:

“It is well settled proposition of law that mode of proving the will
does not differ from that of proving any other document except as
to the special requirement of attestation prescribed in the case of a
will by Section 63 of the Indian Succession Act, 1925. The onus to
prove the will is on the propounder and in the absence of
suspicious circumstances surrounding the execution of the will,
proof of testamentary capacity and proof of the signature of the
testator, as required by law, need be sufficient to discharge the
onus. Where there are suspicious circumstances, the onus would
again be on the propounder to explain them to the satisfaction of
the court before the will can be accepted as genuine. Proof in
either case cannot be mathematically precise and certain and
should be one of satisfaction of a prudent mind in such matters. In
case the person contesting the will alleges undue influence, fraud
or coercion, the onus will be on him to prove the same. As to what
are suspicious circumstances have to be judged in the facts and
circumstances of each particular case. For this see H. Venkatachala
Iyengar v. B.N. Thimmajamma Ors. [MANU/SC/0115/1958 :
(1959) Supp. 1 SCR 426] and the subsequent judgments
Ramachandra Rambux v. Champabai Ors.[MANU/SC/0304/1964 :
(1964) 6 SCR 814]; Surendra Pal Ors. v. Dr. (Mrs.) Saraswati
Arora Anr. [MANU/SC/0289/1974 : (1974) 2 SCC 600]; Smt.
Jaswant Kaur v. Smt. Amrit Kaur Ors. [MANU/SC/0530/1976 :
(1977) 1 SCC 369]; and Meenakshiammal (Dead) thr. LRs. Ors.
v. Chandrasekaran Anr. [MANU/SC/0953/2004 : (2005) 1 SCC
280].”

Further, in paragraph (14) of the judgment, it was held as follows:
“The propounder of the will has to show that the will was signed
by the testator; that he was at the relevant time in sound disposing
state of mind; that he understood the nature and effect of
dispositions and had put his signatures to the testament of his own
free will and that he had signed it in the presence of the two
witnesses who attested in his presence and in the presence of each
other. Once these elements are established, the onus which rests
on the propounder is discharged.”

(iv) Pentakota Satyanarayana v. Pentakota Seetharatnam
MANU/SC/0819/2005 : (2005) 8 Supreme Court Cases 67. This
decision was relied upon in support of the proposition that
circumstances of depriving natural heirs should not raise any
suspicion because the whole idea behind the execution of the Will
is to interfere in the normal line of succession and so natural heirs
would be debarred in every case of the Will and that it may be that
in some cases they are fully debarred and some cases partly.

(v) Savithri v. Karthyayani Amma MANU/SC/8061/2007 : (2007) 11
Supreme Court Cases 621. In this cited case, it was held that the
fact that natural heirs have either been excluded or a lesser share
has been given to them, by itself without anything more, cannot be
held to be a suspicious circumstances and that the testator lived
seven years after the execution of the Will and did not cancel it,
supports the validity of the Will.

(vi) In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and
others MANU/SC/8788/2006 : (2006) 13 Supreme Court Cases 433,
the Hon’ble Supreme Court while dealing with the execution of an
unprivileged Will had held as follows:

“Section 63 of the Indian Evidence Act lays down the mode and
manner in which the execution of an unprivileged Will is to be
proved. Section 68 postulates the mode and manner in which proof
of execution of document is required by law to be attested. It in
unequivocal terms states that execution of Will must be proved at
least by one attesting witness, if an attesting witness is alive
subject to the process of the court and capable of giving evidence.
A Will is to prove what is loosely called as primary evidence, except
where proof is permitted by leading secondary evidence. Unlike
other documents, proof of execution of any other document under
the Act would not be sufficient as in terms of Section 68 of the
Indian Evidence Act, execution must be proved at least by one of
the attesting witnesses. While making attestation, there must be
an animus attestandi, on the part of the attesting witness, meaning
thereby, he must intend to attest and extrinsic evidence on this
point is receivable.

The burden of proof that the Will has been validly executed and is
a genuine document is on the propounder. The propounder is also
required to prove that the testator has signed the Will and that he
had put his signature out of his own free will having a sound
disposition of mind and understood the nature and effect thereof.
If sufficient evidence in this behalf is brought on record, the onus
of the propounder may be held to have been discharged. But, the
onus would be on the applicant to remove the suspicion by leading
sufficient and cogent evidence if there exists any. In the case of
proof of Will, a signature of a testator alone would not prove the
execution thereof, if his mind may appear to be very feeble and
debilitated. However, if a defence of fraud, coercion or undue
influence is raised, the burden would be on the caveator. [See
Madhukar D. Shende v. Tarabai Shedage MANU/SC/0016/2002 :
(2002) 2 SCC 85 and Sridevi Ors. v. Jayaraja Shetty Ors.
MANU/SC/0065/2005 : (2005) 8 SCC 784]. Subject to above, proof
of a Will does not ordinarily differ from that of proving any other
document.”

(vii) Mahesh Kumar (dead) by LRs v. Vinod Kumar
MANU/SC/0208/2012 : (2012) 4 Supreme Court Cases 387. This
precedent was relied upon in support of the proposition that the
signatures of two attesting witnesses to a Will are not required to
be appended simultaneously.

21. The judgments of the Honble Supreme Court in KUSUMGAURI
(supra 1) and KOTA VARAPRASADA RAO (supra 2) would not be helpful to
the appellant.

22. Even as per the judgment of the Honble Apex Court in the case of
RANVIR DEWAN (supra 3), it is clear that Section 14 (2) of the Hindu
Succession Act is available only when the women claims the property for the
first time as a grant without any pre-existing right. The Honble Apex Court
also made it very much clear that where female claims the property at a
partition or in lieu of right of maintenance by virtue of pre-existing right, such
acquisition, would not be within Section 14 (2) of the Hindu Succession Act.
The said judgement in the considered opinion of this Court, would be helpful
to the plaintiff.

23. In JUPUDY PARDHA SARATHY (supra 5), the Honble Apex Court at
paragraphs 14, 15, 20, 30, 31 and 33, held as under:

14. It is well settled that under the Hindu Law, the husband
has got a personal obligation to maintain his wife and if he is
possessed of properties then his wife is entitled to a right to
be maintained out of such properties. It is equally well settled
that the claim of Hindu widow to be maintained is not a mere
formality which is to be exercised as a matter of concession,
grace or gratis but is a valuable, spiritual and moral right.
From the judicial pronouncement, the right of a widow to be
maintained, although does not create a charge on the
property of her husband but certainly the widow can enforce
her right by moving the Court and for passing a decree for
maintenance by creating a charge.

15. The Hindu Married Womens Right to Separate,
Maintenance and Residence Act, 1946 was enacted giving
statutory recognition of such right and, therefore, there can
be no doubt that the right to maintenance is a pre-existing
right.

20. The facts in Karmis 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 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.

30. Mr. Vishwanathan, learned senior counsel for the
appellants last contention was that in the absence of any
pleading and proof from the side of the appellant to
substantiate the plea that Veeraraghavamma was occupying
the property in lieu of maintenance, Section 14 will not be
automatically attracted. We do not find any substance in the
submission made by the learned counsel. Indisputably,
Exhibit A-2 is a document which very categorically provided
that the property in question was given to Veeraraghavamma
to enjoy the same till her life. Neither the genuineness of the
said Exhibit A-2 was disputed nor it was disputed that
Veeraraghavamma was enjoying the property by way of
maintenance. In our considered opinion, unless the factum of
bequeathing the property in favour of the wife and her
continuous possession are disputed, the question of pleading
and proof does not arise. In other words, no one disputed
the arrangement made in the Will and Veeraraghavamma
continued to enjoy the said property in lieu of maintenance.
Hence, the ratio decided in G. Ramas case (supra) does not
apply.

31. Further, indisputably, Mr. P. Venkata Subba Rao, the
original owner of the property, realized the fact that his wife
Veeraraghavamma was issueless and she has a pre-existing
right to be maintained out of his property. He further realized
that physically he was weak and may not survive for long
period. He therefore, decided to give his properties to his
family members. For the maintenance of his third wife
Veeraraghavamma, he gave the tiled house with site and
compound wall with the stipulation that she shall enjoy the
property for life in lieu of maintenance. She will also be
entitled to fetch water from the well and use other facilities.
Admittedly, no one disputed the arrangements made in the
Will and Veeraraghavamma continued to enjoy the said
property. In view of the admitted position, we have no doubt
to hold that by virtue of Section 14(1) of the Act, her limited
right became absolute right to the suit property.

33. Though no specific word has been mentioned in Exhibit
A-2 that in lieu of maintenance life interest has been created
in favour of Veeraraghavamma, in our opinion in whatever
form a limited interest is created in her favour who was
having a pre-existing right of maintenance, the same has
become an absolute right by the operation of Section 14(1)
of the Hindu Succession Act.

24. In VADDEBOYINA TULASAMMA AND OTHERS (supra 6), the
Honble Apex Court at paragraphs 27, 39, 40 and 63, held as follows:

27. Thus on a careful consideration and detailed analysis of
the authorities mentioned above and the Shastric Hindu Law
on the subject, the following propositions emerge with
respect to the incidents and characteristics of a Hindu
woman’s right to maintenance:

(1) that a Hindu woman’s right to maintenance is a personal
obligation so far as the husband is’ concerned, and it is his
duty to maintain her even if he has no property. If the hus-
band has property then the right of the widow to
maintenance becomes an equitable charge on his property
and any person who succeeds to the property carries with it
the legal obliga- tion to maintain the widow;

(2) though the widow’s right to maintenance is not a right to
property but it is undoubtedly pre-existing right in property,
i.e. it is a jus ad rem not jus in rem and it can be en- forced
by the widow who can get a charge created for her
maintenance on the property either by an agreement or by
obtaining a decree from the civil court;

(3) that the right of maintenance is a matter of moment and
is of such importance that even if the joint property is sold
and the purchas- er has notice of the widow’s right to
mainte- nance, the purchaser is legally bound to provide for
her maintenance;

(4) that the right to maintenance is undoubt- edly a
preexisting right which existed in the Hindu Law long before
the passing of the Act of 1937 or the Act of 1946, and is,
therefore, a pre-existing right;

(5) that the right to maintenance flows from the social and
temporal relationship between the husband and the wife by
virtue of which the wife becomes a sort I.L.R. 27 Mad. 45. (2)
I.L.R. 18 Bom. 452.

of co-owner in the property of her husband, though her co-
ownership is of a subordinate nature; and
(6)that where a Hindu widow is in possession of the property
of her husband, she is enti- tled to retain the possession in
lieu of her maintenance unless the person who succeeds to
the property or purchases the same is in a position to make
due arrangements for her maintenance.

39. After considering various aspects of the matter we are
inclined to agree with the contentions raised by Mr. Krishna
Murthy Iyer appearing for the appellant. In the: first place,
the appellant’s contention appears to be more in consonance
with the spirit and object of the statute itself. Secondly, we
have already pointed out that the claim of a Hindu female for
maintenance is undoubtedly a pre-existing right and this has
been So held not only by various Courts in India but also by
the Judicial Committee of the Privy Council and by this Court.
It seems to us, and it has been held as discussed above, that
the claim or the right to maintenance possessed by a Hindu
female is really a substitute for a share which she would have
got in the property of her husband. This being the position,
where a Hindu female who. gets a share in her husband’s
property acquires an absolute interest by virtue of s. 14(1) of
the Act, could it be intended by the legisla- ture that in the
same circumstances a Hindu female who could not get a
share but has a right of maintenance would not get an
absolute interest ? In other words, the position would be that
the appellant would suffer because her husband had died
prior to the Act of 1937. If the husband of the appellant had
died after 1937, there could be no, dispute that the appellant
would have got an absolute interest, because she was
entitled to her share under the provisions of the Hindu
Women’s Right to Property Act, 1937. Furthermore, it may be
necessary to study the language in which the Explanation to
s. 14(1) and sub-s. (2) of s. 14 are couched. It would be seen
that while the Explanation to s. 14( 1 ) clearly and expressly
mentions “property acquired by a female Hindu” at a partition
or in lieu of maintenance or arrears of mainte- nance there is
no reference in sub-s. (2) at all to this particular mode of
acquisition by a Hindu female which clearly indicates that the
intention of the Parliament was to exclude the application of
sub-s. (2) to, cases where the property has been acquired by
a Hindu female. either at a partition or in lieu of maintenance
etc. The Explanation is an inclusive definition and if the
Parliament intended that everything that is mentioned in the
Explanation should be covered by sub-s. (2) it should have
expressly so stated in sub-s. (2). Again the language of sub-
s. (2) clearly shows that it would apply only to such
transactions which. are absolutely independent in nature and
which are not in recog- nition of or in lieu of pre-existing
rights. It appears from the Parliamentary Debates that when
the Hindu Succes- sion Bill, 1954, was referred to a Joint
Committee by the Rajya Sabha, in s. 14(2) which was clause
16(2) of the Draft Bill of the Joint Committee, the words
mentioned were only gift or will. Thus the intention of the
Parliament was to confine sub-s. (2) only to two transactions,
namely a gift or a will, which clearly would not include
property received by a Hindu female in lieu of maintenance
or at a partition. Subsequently, however, an amendment was
proposed by one of the, members for adding other
categories, namely, an instru- ment, decree, order or award
which was accepted by the Government. This would show
that the various terms, viz., gift, will, instrument, decree,
order or award mentioned in s. 14(2) would have to. be read
ejusdem generis so as refer to transactions where right is
created for the first time in favour of the Hindu female. The
intention of the Parliament in adding the other categories to
sub-s. (2) was merely to ensure that any transaction under
which a Hindu female gets a new or independent title under
any of the modes mentioned in s. 14(2), namely, gift, will,
decree, order, award or m instrument which prescribes a
restricted estate would not be disturbed and would continue
to occupy the field covered by s. 14(2). This would be the
position even ‘if a Hindu male was to get the property by any
of the modes mentioned in s. 14(2): he would also get only a
restricted interest and, therefore, the Parliament thought that
there was no warrant for making any distinction between a
male or a female in this regard and both were, therefore,
sought to be equated.

40. Finally, we cannot overlook the scope and extent of a
proviso. There can be no doubt that sub-s. (2) of s. 14- is.
clearly a proviso to s. 14 (1) and this has been so held by this
Court in Badri Prasad’s case (supra). It is well settled that a
provision in the nature of a proviso merely carves out an
exception to the main provision and cannot be interpreted in
a manner so as to. destroy the effect of the main provision or
to render the same nugatory. If we accept the argument of
the respondent that sub-s. (2 ) to s. 14 would include even a
property which has been acquired by a Hindu female at a
partition or in lieu of maintenance then a substantial part of
the Explanation would be completely set at naught which
could never be the intention of the proviso Thus we are
clearly of the opinion that sub-s. (2) of s. 14 of the proviso
should be interpreted in such a way so as not to substantially
erode s. 14(1) or the Explanation thereto. In the present case
we feel that the proviso has carved out completely a
separate. field and before it can apply three conditions must
exist:

(i) that the property must have been acquired by way of gift,
will, instrument, decree, order of the Court or by an award;

(ii) that any of these documents executed in favour of a
Hindu female must prescribe a restricted estate in such
property; and

(iii) that the instrument must create or confer a new right,
title or interest on the Hindu female and not merely recognise
or give effect to a pre-existing right which the female Hindu
already possessed.

Where any of these documents are executed but no
restricted estate is prescribed, sub-s. (2) will have no
application. Similarly where these instruments do not confer a
new title for the first time on the female Hindu, s. 14(1)
would have no application. It seems to me that s. 14(2) is a
salutary provision which has been incorporated by the
Parliament for historical reasons in order to maintain the link
between the Shastric Hindu Law and the Hindu Law which
was sought to be changed by recent legislation, so that
where a female Hindu became possessed of property not in
virtue of any pre-existing right but otherwise, and the grantor
chose to impose certain conditions on the grantee, the
legislature did not want to interfere with such a transaction
by oblit- erating or setting at naught the conditions imposed.

63. Thus on a careful scrutiny and analysis of the authori-
ties discussed above, the position seems to be that the view
taken by the High Courts of Bombay, Andhra Pradesh, Patna,
Mysore, Punjab, Calcutta .and Kerala to the effect that the
widow’s claim to maintenance, even though granted to her
subject to certain restrictions, is covered by s.14 (1) and not
by sub-s. (2) is based on the following premises:
(1) That the right of a Hindu widow to claim maintenance is
undoubtedly a right against property though not a right to
property. Such a right can mature into a full-fledged one if it
is charged on the property either by an agreement or by a
decree. Even otherwise, where a family possesses property,
the husband, or in case of his. death, his heirs are burdened
with the obligation to maintain the widow and, therefore, the
widow’s claim for maintenance is not an empty formality but
a pre-existing right.

(2) Section 14(2) which is in the nature of a proviso to s.
14(1) cannot be interpreted in a way so as to destroy the
concept and defeat the purpose which; is sought to, be
effectuated by s. 14(1) in conferring an absolute interest on
the Hindu women and in doing away with what was here-
tobefore known as the Hindu women’s estate. The proviso
will apply only to such cases which flow beyond the purview
of the Explanation to s. 14(1).

(3) That the proviso would not apply to any grant or transfer
in favour of the widow hedged in by limitation or restrictions,
where the grant is merely in recognition or declaration of a
pre-existing right, it will apply only to such a case where a
new right which the female .did not possess at all is sought
to be conferred on her under cer- tain limitations or
exceptions. In fact in such a case even if a conditional grant
is made to a male, he would be bound by the condition
imposed. The proviso wipes out the distinc- tion between a
male and a female in this respect.

25. In JAGANNATHAN PILLAI (supra 7), the Honble Apex Court at
paragraphs 3 and 5, held as follows:

3. The typical facts in the backdrop of which the problem
has to be viewed are :-

(1) A Hindu female acquired a property, say by reason of the
death of her husband, before the commencement of the Act
(i.e. before June 17, 1956).

(2) What she acquired was a widow’s estate as understood in
shastric or traditional Hindu Law.

(3) She lost the possession of the property on account of a
transaction whereby she trans- ferred the property in favour
of an alienee by a registered document of ‘sale’ or ‘gift’.

4. Ganesh Mahanta v. Sukria Rewa (AIR 1963 Orissa 167).

5. Medicherla Venkataratnam v. Siddani Palamma, (1970 II
Andhra Weekly Reporter 264).

6. Chinnakolandai Goundan v. Thanji Gounder, (ILR 1966 I
Madras 326).

7. Teia Singh v. Jagat Singh, (AIR 1964 Punjab 403).

8. Ramgowda Aunagowda v. Bhausaheb, (ILR 52 Bom. 1).

9. Champa v. Chandrakant, (AIR 1973 Gujarat 227).
(4) The property in question was retransferred to her by the
said alienee ‘after’ the enforcement of the Act by a registered
document thus restoring to the widow the interest (such as it
was) which she had parted with earlier by re- versing the
original transaction.

It is in this factual background that the question will have to
be examined as to whether upon the reconveyance of the
very property which she had alienated after enforcement of
the Act, she would become a full owner in respect of such a
property by virtue ‘of Section 14(1) of the Hindu Succession
Act, 1956 (Act). Be it realized that the law has been set- tled
by this Court that the limited estate or limited owner- ship of
a Hindu female would enlarge into an absolute estate or full
ownership of the property in question in the follow- ing
factsituation:

1. Where she acquired the limited estate in the property
before or after the commencement of the Act provided she
was in possession of the property at the time of the coming
into force of the Act on June 17, 1956.

2. Even if the property in question was possessed by her in
lieu of her right to maintenance as against the estate of her
deceased husband or the joint family property, she would be
entitled to become a full or absolute owner having regard to
the fact that the origin of her right was traceable to the right
against her husband’s estate.

5. On an analysis of Section 14(1) of the Hindu Succession
Act of 1956, it is evident that the Legislature has abol- ished
the concept of limited ownership in respect of a Hindu female
and has enacted that any property possessed by her would
thereafter be held by her as a full owner. Section 14(1) would
come into operation if the property at the point of time when
she has an occasion to claim or assert a title thereto. Or, in
other words, at the point of time when her right to the said
property is called into question. The legal effect of Section
14(1) would be that after the coming into operation of the
Act there would be no property in respect of which it could be
contended by anyone that a Hindu female is only a limited
owner and not a full owner. (we are for the moment not
concerned with the fact that sub-section (2) of section 14
which provides that Section 14(1) will not prevent creating a
restricted estate in favour of a Hindu female either by gift or
will or any instrument or decree of a Civil Court or award
provided the very document creating title unto her confers a
restricted estate on her). There is nothing in Section 14 which
supports the proposition that a Hindu female should be in
actual physical possession or in con- structive possession of
any property on the date of the coming into operation of the
Act. The expression ‘possess ,’ has been used in the sense of
having a right to the property or control over the property.
The expression ‘any property possessed by Hindu female
whether acquired before or after the commencement of the
Act’ on an analysis yields to the following interpretation:
.15 (1) Any property possessed by a Hindu female acquired
before the commencement of the Act will be held by her as a
full owner thereof and not as a limited owner. (2) Any
property possessed by a Hindu female acquired after the
commencement of the Act Will be held as a full owner
thereof and not as a limited owner.

Since the Act in terms applies even to properties possessed
by a Hindu female which are acquired ‘after’ the commence-
ment of the Act, it is futile to contend that the Hindu female
shall be in ‘possession’ of the property ‘before’ the
commencement of the Act. If the property itself is acquired
‘after’ the commencement of the Act, there could be no
question of the property being either in physical or con-
structive possession of the Hindu female ‘before’ the coming
into operation of the Act. There is, therefore, no escape from
the conclusion that possession, physical or construc- tive or in
a legal sense, on the date of the coming into operation of the
Act is not the sine-qua-non for the acqui- sition of full
ownership in property. In fact, the intention of the Legislature
was to do away with the concept of limit- ed ownership in
respect of the property owned by a Hindu female altogether.
Section 4 of the Act (it needs to be emphasized) provides
that any text, rule or interpretation of Hindu Law or custom
or usage as part of that law in force immediately before the
commencement of this Act, shall cease to have effect with
respect to any matter for which provi- sion is made in the
Act. The legislative intent is there- fore, abundantly loud and
clear.

To erase the injustice and remove the legal shackles by
abolishing the concept of limited estate, or the women’s or
widow’s estate once and for all. To obviate hair-splitting, the
Legislature has made it abundantly clear that whatever be
the property possessed by a Hindu female, it will be of
absolute ownership and not of limited ownership notwith-
standing the position obtaining under the traditional Hindu
law. Once it is shown that at the point of time when the
question regarding title to property held by a Hindu female
arises, she was ‘possessed’ of the property on that date, in
the eye of law, the property held by her would be held by her
as ‘full owner’ and not as ‘limited owner’. In other words, all
that has to be shown by her is that she had acquired the
property and that she was ‘possessed’ of the property at the
point of time when her title was called into question. When
she bought the property from the alienee to whom she had
sold the property prior to the enforcement of the Act, she
‘acquired’ the property within the meaning of the explanation
to Section 14(1) of the Act. The right that the original alienee
had to hold the property as owner (subject to his right being
questioned by the reversioner on the death of the female
Hindu from whom he had purchased the property) was
restored to her when she got back the right that she had
parted with. Whatever she had lost ‘earlier’, was ‘now’
regained by her by virtue of the transaction. The status-quo-
ante was restored in respect of her interest in the said
property. In the eye of law, therefore, the trans- action by
which the vendee of the Hindu female acquired an interest in
the said property was ‘reversed’ and the Hindu female was
restored to the position prevailing before the transaction took
place. In other words, in the eye of law the transaction stood
obliterated or effaced. What was ‘done’ by virtue of the
document executed in favour of the transferee was ‘undone’.
Such would be the consequence of a retransfer by the
alienee in favour of a Hindu female from whom he had
acquired an interest in the property in ques- tion. Thus on
the date on which her right to the property was called into
question, she was ‘possessed’ of the proper- ty which she
had inherited from her husband she having by then re-
acquired and regained what she had lost. And by virtue of
the operation of Section 14(1) of the Act the limitation which
previously inhered in respect of the property disappeared
upon the coming into operation of the Act. It is no longer
open to anyone now to contend that she had only a ‘limited’
ownership in the said property and not a ‘full’ ownership, the
concept of limited ownership having been abolished
altogether, with effect from the coming into operation of the
Act.

26. Having regard to the various documents referred to above and the
recitals contained therein and the principles laid down in the pronouncements
referred to supra, it can now be safely concluded that the right created in
favour of Smt.Seethamma did enlarge into absolute right in the subject
property. In fact Seethamma had pre-existing right of maintenance from her
husband and admittedly the subject property belonged to him. Therefore,
the transaction in favour of the plaintiff is well protected and safeguarded
under Section 1 of Section 14 of the Hindu Succession Act, 1956.

27. Another important and crucial aspect which requires mention in this
context is that admittedly the father of the plaintiff through whom the
defendant claims the property gave half share out of the properties to his
brother, Sri Nannupuneni Ankinedu by way of Ex.A.3 Registered Settlement
Deed dated 26.01.1940 and if the same being so, it is not understandable as
to how the father of the plaintiff executed the Will Deed in favour of the
defendant for the entire property without there being any title for half of the
property even assuming that he had such right of alienation. In fact, DW.1
categorically stated in his evidence that Adeyya and his brother alone have
right in the suit house and that he did not obtain any sale deed from
Ankineedu nor he contacted Ankineedu while purchasing the said property
and that the said Ankineedu got half share in the suit property. DW.1 also
stated that he does not know the contents of the written statement. Even
according to DW.1, Smt. P.Seethamma was living in the said property till her
death. Therefore, point No.1 is answered in favour of the plaintiff and
against the defendants.

28. Points 2 and 3:

The case of the plaintiff is that in a sound and disposing state of mind
Smt.Seethamma executed Ex.A.7 Will, dated 15.10.1984, bequeathing the
suit schedule properties in favour of the plaintiff.

29. On the other hand, it is the case of the defendant that the very
execution of Ex.A.7 Will is suspicious and that in view of various material
contradictions in the oral evidence adduced by the plaintiffs, the trial Court
should have discarded Ex.A.7 Will and ought not to have given any credence
for the same and should have ignored the said document.

30. According to the plaintiff, one Sri Chintalapudi Manikya Rao scribed
Ex.A.7 Will. As per the evidence of PW.2 (Sri Pamulapati Hanumantharao),
he is a resident of Nidubrolu and his avocation is cultivation and he acted as
attestor for Ex.A.7 Will and he identified his signature on the said document
and at the time of Ex.A.7 one Sri Gadde Rama Mohana Rao, Pamulapati
Ankineedu, Inturi Satyanarayana, himself, Chintalapudi Manikrao and testatrix
Smt.Seethamma were present. He further deposed that the scribe wrote the
contents of Ex.A.7 to the dictation of Smt.Seethamma and that she was in
good condition and she affixed her thumb impression in their presence. He
also categorically deposed that himself, Pamulapati Ankineedu, Gadde
Rammohan Rao, Inturi Satyanarayana and scribe saw Smt.Seethamma
affixing thumb impression on Ex.A.7 and further deposed that
Smt.Seethamma saw him and attestors attesting the Will. Though, he spoke
of Asthama and lack of vision of Seethamma as pointed out by the learned
counsel for the plaintiff, it cannot be said that Smt.Seethamma was not in a
sound and disposing state of mind when the fact remains that PW.2
categorically spoke about the mental condition of Smt.Seethamma. Simply
because PW.2s sister is given in marriage to the plaintiff, his evidence cannot
be discarded nor its trustworthiness can be doubted so long as the same is in
accordance with the provisions of Indian Evidence Act and the Indian
Succession Act. As pointed out by the learned counsel for the plaintiff, lack
of vision cannot be construed as complete blindness and in fact no such
allegation of blindness was made by the defendant either in the pleadings or
in the evidence.

31. PW.3, one Sri Gadde Ramamohana Rao, another attestor, whose
house is at a distance of 60 or 70 yards from the house of Seethamma also
spoke in the same lines. PW.4, one Sri Pamulapati Ankineedu, another
attestor of Ex.A.7 Will deposed that he is a resident of Nidubrolu and his
avocation is agriculture and his maternal grand mother and mother of
Seethamma are sisters and his house is at a distance of two furlongs from
the suit house. Though he spoke of Asthama and lack of vision, he did not
say that the mental condition of Seethamma was not good at the time of
execution of Ex.A.7 Will.

32. Though certain contradictions have been pointed by the learned
counsel for the appellant in the evidence of PWs.2 to 4 as to the place of
scribing the Will and presence of persons at the time of execution of Ex.A.7
Will, in the considered opinion of this Court, the same are minor in nature
and cannot be construed as fatal to the case of the plaintiff. Therefore, it can
be safely concluded that the plaintiff proved the execution of Ex.A.7
document in accordance with the provisions of Indian Evidence Act and the
Indian Succession Act. In the result Point Nos.2 and 3 are answered in
favour of the plaintiff.

33. The decision of this Court reported KRISHNA KUMAR (supra 4),
cited by the learned counsel for the appellant, would not render any
assistance to the appellant in the facts and circumstances of the case and for
the reasons recorded supra.

34. In the result, the appeal suit is dismissed, confirming the Judgment
and Decree dated 28.11.1997 rendered by the learned Subordinate Judge,
Guntur in O.S.No.42 of 1989. As a sequel, the miscellaneous petitions, if any,
shall stand disposed of. In the circumstances of the case, there shall be no
order as to costs.

__
A.V.SESHA SAI, J
Date:29-01-2018

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