* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CS(OS) Nos.575/2001 conn. matters

% 4th April, 2018
1. CS(OS) No.575/2001
PARAMJIT ANAND ….. Plaintiff
Through: Mr. Manjit Singh Ahluwalia,
Advocate.
versus

MOHAN LAL ANAND (SINCE DECEASED) THROUGH LRS
ORS. ….. Defendants
Through: Mr. Rajat Wadhwa, Advocate
with Mr. Karanpreet Singh,
Advocate.
2. CS(OS) No.1588/2007

MOHAN LAL ANAND (SINCE DECEASED) THROUGH LRS
ANR. ….. Plaintiffs
Through: Mr. Rajat Wadhwa, Advocate
with Mr. Karanpreet Singh,
Advocate.
versus
PARAMJEET ANAND ORS. ….. Defendants
Through: Mr. Manjit Singh Ahluwalia,
Advocate.
3. Test Cas. No.23/2007
NARESH ANAND ….. Petitioner
Through: Mr. Rajat Wadhwa, Advocate
with Mr. Karanpreet Singh,
Advocate.
versus
STATE ….. Respondent

CS(OS) No.575/01 conn. matters Page 1 of 60

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Three matters are being decided in terms of the present

judgment. The three matters are:-

(i) CS(OS) No.575/2001 titled as Paramjit Anand Vs. Sh.

Mohan Lal Anand (Deceased) through LRs Ors.

(ii) CS(OS) No.1588/2007 titled as Mohan Lal Anand

(Deceased) through LRs Anr. Vs. Paramjit Anand Ors.

(iii) Test. Cas. No.23/2007 titled as Naresh Anand Vs. State.

2.(i) CS(OS) No.575/2001 is the suit for partition etc of the

property bearing no. J-5/129, Rajouri Garden, New Delhi. This suit

was filed by two plaintiffs Sh. Paramjeet Anand and Sh. Suresh

Chander Anand. Sh. Suresh Chander Anand who was the plaintiff

no.2 in the suit has during the pendency of the suit got transposed

himself as the defendant no.4 in the suit and he now supports the

defendant nos.1 and 2 in the suit. Defendant no.1 in this suit is Sh.

Mohan Lal Anand, father of the plaintiff and defendant nos.2 to 4. Sh.

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Mohan Lal Anand has also since expired and now the main contesting

defendant is Sh. Naresh Chander Anand, defendant no.2. Defendant

no.3 is Sh. Ramesh Chander Anand, son of Sh. Mohan Lal Anand and

the brother of the plaintiff and defendant nos. 2 and 4. Defendant no.3

supports the plaintiff.

(ii) As per the suit plaint of CS(OS) No. 575/2001, partition is

sought of the suit property by pleading that though the suit property in

terms of the title deed dated 12.10.1956 stands in the name of

defendant no.1/Sh. Mohan Lal Anand (father of the other parties to the

suit), but this suit property was purchased by Sh. Mohan Lal Anand

from the funds inherited by him from his father Sh. Nathuram Anand,

the grandfather of plaintiff and defendant nos. 2 to 4. Sh. Nathuram

Anand had left behind the properties in Pakistan when he migrated to

India at the time of independence. Sh. Nathuram Anand filed his claim

with the Ministry of Rehabilitation for the properties left behind by

him in Pakistan. This claim application was filed in the year 1947.

This claim application was allowed and a sum of Rs.5,411/- was paid

by the Ministry of Rehabilitation. The funds were paid in the year

1956 on the application of Sh. Nathuram Anand of the year 1947.

CS(OS) No.575/01 conn. matters Page 3 of 60
Since succession of the properties of Sh. Nathuram Anand opened in

the year 1948 on his death before the enactment of the Hindu

Succession Act, 1956, the funds of Sh. Nathuram Anand inherited by

his four sons were ancestral in their hands (with one son being Sh.

Mohan Lal Anand). Each of the sons got 1/4th share out of the amount

of Rs.5,411/-. Since the suit property was purchased by Sh. Mohan Lal

Anand from his share of the funds received from the estate of Sh.

Nathuram Anand, therefore the suit property is an HUF property.

Once the suit property is an HUF property, then each of the five

parties to the suit will have 1/5th share, with the five parties being Sh.

Mohan Lal Anand – the father and his four sons. Sh. Mohan Lal

Anand has expired during the pendency of the suit and he is now

represented by Sh. Naresh Chander Anand/defendant no.2. Reference

in this judgment to the parties to the suits would be with reference to

their numbering in the memo of parties filed on 23.3.2018 in this CS

(OS) No. 575/2001.

3. CS(OS) No.1588/2007 is filed by two plaintiffs Sh.

Mohan Lal Anand and Sh. Naresh Chander Anand. This suit is a suit

filed for possession of the ground floor of the suit property in

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possession of Sh. Paramjeet Anand, and who is the plaintiff in CS(OS)

No.575/2001. The cause of action in this suit is that the suit property

is a self-acquired property of Sh. Mohan Lal Anand and it is not an

HUF property. Since Sh. Mohan Lal Anand is the owner of the suit

property hence Sh. Paramjeet Anand, the defendant is a trespasser and

who is liable to hand over possession of the ground floor of the suit

property to the plaintiffs in CS(OS) No.1588/2007.

4. Testamentary case no.23/2007 has been filed on account

of death of Sh. Mohan Lal Anand, who as per the petitioner in this

testamentary case Sh. Naresh Chander Anand, left behind his Will

dated 9.3.2005 whereby the deceased Sh. Mohan Lal Anand gave to

his widow Smt. Sushila Rani Anand life-interest/life-estate in the suit

property and after the death of Smt. Sushila Rani Anand (the mother

of the petitioner) to the petitioner Sh. Naresh Chander Anand as an

absolute owner.

5. In sum and substance the aspects which arise for decision

between the parties in the three matters, two suits and one

testamentary case, fall under the following heads:-

(i) Whether or not the suit property is an HUF property.

CS(OS) No.575/01 conn. matters Page 5 of 60

(ii) If the suit property is an HUF property, then, Sh. Mohan Lal

Anand would have only 1/5th share in the suit property with 1/5th share

each going to the four sons of Sh. Mohan Lal Anand, namely Sh.

Paramjeet Anand, Sh. Naresh Chander Anand, Sh. Ramesh Chander

Anand and Sh. Suresh Chander Anand.

(iii) Whether Sh. Mohan Lal Anand died leaving behind his valid

Will dated 9.3.2005, and which will have the effect that whatever was

the share of Sh. Mohan Lal Anand in the suit property, whether as

complete owner or only as 1/5th owner of the suit property, if the suit

property is HUF property, such title of Sh. Mohan Lal Anand would

devolve in terms of his Will dated 9.3.2005.

(iv) If the Will dated 9.3.2005 of Sh. Mohan Lal Anand is held to be

proved, and the suit property is not an HUF property, whether Smt.

Sushila Rani Anand who got life-estate in the suit property in terms of

the Will dated 9.3.2005 of her husband Sh. Mohan Lal Anand,

whether this life-estate gets converted into a full ownership because of

Section 14(1) of the Hindu Succession Act with the sequitur that since

Smt. Sushila Rani Anand has died intestate now the suit property will

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be owned by the four sons of Smt. Sushila Rani Anand and Sh. Mohan

Lal Anand, with each of them getting 1/4th share.

(v) In case the suit property is an HUF property and thus Sh.

Mohan Lal Anand only had 1/5th share, then by virtue of his Will he

could only bequeath his 1/5th share in the suit property, and Smt.

Sushila Rani Anand‟s estate therefore would have only 1/5 th share in

the suit property, and if Sh. Sushila Rani Anand‟s right is only of a

life-estate under Section 14(2) of the Hindu Succession Act, then this

1/5th share will not go equally to the four sons of Smt. Sushila Rani

Anand and Sh. Mohan Lal Anand but this 1/5th share of Sh. Mohan

Lal Anand will be owned by Sh. Naresh Chander Anand thus

increasing his 1/5th share in the suit property to 40% i.e 1/5th plus 1/5th.

(vi) In case the suit property is not an HUF property, and if the Will

dated 9.3.2005 is proved, and if the life-estate of Smt. Sushila Rani

Anand does not get converted into a full estate, then Sh. Naresh

Chander Anand will be the sole and exclusive owner of the suit

property.

CS(OS) No.575/01 conn. matters Page 7 of 60

6. The two suits were consolidated by the order dated

13.5.2010 passed by a learned Single Judge of this Court, and the

following same/common issues were framed in both the suits on

30.9.2010:-

“(i) Whether the plaintiff proves that the property which is subject
matter of the CS(OS) 575/2001 belonged to the HUF and was,
therefore, incapable of bequest by Late Sh. Mohan Lal Anand?
OPP in CS(OS) 575/2001.

(ii) Whether the plaintiff in CS(OS) 575/2001 is entitled to a decree for
partition, as claimed? OPP

(iii) Whether Ms. Sushila Anand and Mr. Naresh Anand (defendant
nos.1(a) and 2 in CS(OS) 575/2001) prove that Late Shri Mohan
Lal Anand executed a valid, genuine and binding Will bequeathing
the suit properties legally in their favor on 9.3.2005? OPD-1(a) 2
in CS(OS) 575/2001.

(iv) Whether the plaintiff in either suits are entitled to decree for
rendition of accounts and/or mesne profits? OPP
(v) Whether the plaintiff in CS(OS) 1588/2007 is entitled to a decree
of possession as claimed? OPP
(v) Relief.”

7.(i) The testamentary case was consolidated with the two

suits in terms of the order dated 16.12.2011 passed in testamentary

case and which records that the lead case shall be CS(OS) No.

575/2001.

(ii) Counsels for the parties agree that all the three matters have

been consolidated for the purpose of trial and therefore evidence

which is led in all the three matters will be treated as common

CS(OS) No.575/01 conn. matters Page 8 of 60
evidence in all the three matters for the issues which have to be

decided. This Court therefore for the purpose of this judgment will

decide the issues framed in the suits on 30.9.2010. Reference in this

judgment to the parties will be by their names or as per the Memo of

Parties in CS(OS) No. 575/2001. Since some of the original parties

have expired, reference to them will however be to them as parties as

per their position as plaintiff and defendants in CS(OS) No. 575/2001,

and reference to a party will also include to mean reference to the

legal heirs of those parties who have expired.

8. At this stage it is noted that counsel for the plaintiff in

CS(OS) No.575/2001 states that issue no. (iv) with respect to

entitlement of decree for rendition of accounts and mesne profits is not

pressed on behalf of the plaintiff Sh. Paramjeet Anand. Counsel for

Sh. Ramesh Chander Anand also makes a similar statement.

9.(i) Let me first take up the issue no. (i) as to whether the suit

property is an HUF property or was the suit property a self-acquired

property of Sh. Mohan Lal Anand.

(ii) Counsel for the plaintiff Sh. Paramjeet Anand has argued that

the Sale Deed dated 12.10.1956 (Ex.PW1/D1) which has been

CS(OS) No.575/01 conn. matters Page 9 of 60
executed in favour of Sh. Mohan Lal Anand on payment of

consideration of Rs.1,257.10/-, is though a Sale Deed in the name of

Sh. Mohan Lal Anand, but the consideration of Rs.1,257.10/- which

was paid by Sh. Mohan Lal Anand to the seller DLF Housing and

Construction Limited was out of the ancestral funds received by Sh.

Mohan Lal Anand and his three brothers from the Ministry of

Rehabilitation in terms of the document Ex.PW1/B. This document

Ex. PW1/B is an application filed in the year 1947 by Sh. Nathuram

Anand, the father of Sh. Mohan Lal Anand i.e the grandfather of the

plaintiff in CS(OS) No.575/2001, seeking compensation on account of

the properties left by Sh. Nathuram Anand in Pakistan, and an

endorsement made on the top left of this document shows that on

26.7.1956 a sum of Rs.5,411/- was paid by the Ministry of

Rehabilitation. The case of Sh. Paramjeet Anand is that though Sh.

Mohan Lal Anand and Sh. Nathuram Anand have disputed the validity

of this document but since this original document is over 30 years old

therefore this Court should apply Section 90 of the Indian Evidence

Act, 1872 for holding that this document stands proved and especially

because the plaintiff had on various occasions summoned the

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witnesses from the Ministry of Rehabilitation, but these witnesses

from Ministry of Rehabilitation have stated that the concerned record

could not be traced out in the Ministry of Rehabilitation.

(iii) On behalf of the plaintiff reliance is also placed upon the

deposition of Sh. Virender Kumar Anand son of Sh. Chaman Lal

Anand, the brother of Sh. Mohan Lal Anand (and one of the four sons

of Sh. Nathuram Anand), and in which deposition Sh. Virender Kumar

Anand has categorically stated that the grandfather Sh. Nathuram

Anand expired in May, 1948 and his father Sh. Chaman Lal Anand

along with his three brothers got a sum of Rs.5,411/- and that this

amount of Rs.5411/-was distributed equally among four sons of Sh.

Nathuram Anand, with two of the sons being the defendant no.1/Sh.

Mohan Lal Anand and Sh. Chaman Lal Anand, the father of the

witness Sh. Virender Kumar Anand who deposed as PW-4. It is

argued by Sh. Paramjeet Anand that Sh. Virender Kumar Anand has

specifically so deposed in para 5 of his affidavit by way of evidence

with respect to four sons of Sh. Nathuram Anand getting Rs.5,411/-

and which amount was equally divided among these four sons of Sh.

Nathuram Anand being the four brothers, and on this deposition there

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is no specific cross-examination conducted by Sh. Mohan Lal Anand

and Sh. Naresh Chander Anand that the amount of Rs.5,411/- was not

divided among the four brothers being the four sons of Sh. Nathuram

Anand, and therefore it has to be held that the suit property is an HUF

property having been purchased by Sh. Mohan Lal Anand from

ancestral funds received by him.

10.(i) In response to the above argument of Sh. Paramjeet

Anand, Sh. Mohan Lal Anand and Sh. Naresh Chander Anand have

argued that once the Sale Deed of the suit property dated 12.10.1956/

Ex.PW1/D1 is in the name of Sh. Mohan Lal Anand then it is Sh.

Mohan Lal Anand who has to be taken as the owner of the suit

property because Sh. Paramjeet Anand has failed to discharge the

burden of proof upon him that the suit property is an HUF property. It

is argued that nowhere in the Sale Deed Ex.PW1/D1 it is mentioned

that the amount paid by Sh. Mohan Lal Anand of Rs.1,257.10/- was

out of the compensation paid by the Ministry of Rehabilitation in

terms of the document Ex.PW1/B. It was also argued on behalf of Sh.

Mohan Lal Anand and Sh. Naresh Chander Anand that the plaintiff

Sh. Paramjeet Anand in his cross-examination conducted on 9.5.2011

CS(OS) No.575/01 conn. matters Page 12 of 60
has admitted that Sh. Mohan Lal Anand was even working before the

birth of Sh. Paramjeet Anand, and therefore it is argued that it stands

admitted that Sh. Mohan Lal Anand had the necessary funds with him

to purchase the suit property in terms of the Sale Deed/Ex.PW1/D1 by

making payment of a sum of Rs.1,257.10/-. It is also argued on behalf

of Sh. Mohan Lal Anand and Sh. Naresh Chander Anand that in the

cross-examination of Sh. Paramjeet Anand conducted on 13.5.2011 it

was stated by Sh. Paramjeet Anand that he will produce the documents

to show that Sh. Mohan Lal Anand received his share of the claim of

Rs.5,411/- as stated in Ex.PW1/B, but on subsequent dates of cross-

examination of Sh. Paramjeet Anand, Sh. Paramjeet Anand failed to

prove this document to show receipt by Sh. Mohan Lal Anand of 1/4 th

total consideration of Rs.5,411/- which was paid in terms of

Ex.PW1/B.

(ii) It is also argued on behalf of Sh. Naresh Chander Anand that

the date of payment of consideration for Sale Deed/Ex. PW1/D1 is on

17.8.1956 where as the date of payment by Ministry of Rehabilitation

is later on 26.9.1956 and therefore since payment for Sale Deed is

prior to receipt of Rs.5411/- from the Ministry of Rehabilitation, hence

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the ancestral funds of Sh. Nathuram Anand cannot be said to have

been used by Sh. Mohan Lal Anand for purchase of the suit property

and hence the suit property is not an HUF property in the hands of Sh.

Mohan Lal Anand.

11. In view of passing of the Benami Transactions

(Prohibition) Act, 1988 ordinarily a person in whose name the title

deed of the property is, such a person has to be taken as the owner,

however two exceptions were carved out to the bar of the benami

transactions in terms of Section 4(3) of the Benami Transactions

(Prohibition) Act as it originally stood, with one exception being that

the bar of benami will not apply in case there is an HUF. The Benami

Transactions (Prohibition) Act has been amended w.e.f 25.10.2016

and this Act is now called as the Prohibition of Benami Property

Transactions Act, 1988. Though Section 4(3) of the Benami

Transactions (Prohibition) Act has been repealed from the statute book

but the position comprised in erstwhile Section 4 (3) of the Benami

Transactions (Prohibition) Act is now incorporated in the definition of

„benami transaction‟ contained in Section 2(9) of the new Act with the

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exception of HUF now being contained in Section 2(9)(A)(b)(i) of the

Prohibition of Benami Property Transactions Act.

The issue therefore still to be examined is as to whether the suit

property was or was not the HUF property or was the property only a

self-acquired property of Sh. Mohan Lal Anand.

12.(i) Let me first examine the aspect as to what is the date of

payment by the Ministry of Rehabilitation in Ex.PW1/B. When Ex.

PW1/B is examined it is seen that in the handwritten date, the day and

year being 26th and 1956 is clear, but the numerical figure of the

month is smudged. Sh. Paramjeet Anand says that this figure is ‘7’

whereas Sh. Naresh Chander Anand argues the figure is ‘9’.

(ii) In my opinion the figure is ‘7’ and not ‘9’ because Sh. Naresh

Chander Anand in his cross-examination of Sh. Paramjeet Anand on

9.5.2011 has given a specific suggestion of the date being 26.7.1956.

Also the date cannot be 26.9.1956 merely because Sh. Paramjeet

Anand has allegedly stated the date 17.8.1956 in para 8 of the plaint,

because firstly the smudged figure in Ex.PW1/B definitely is not ‘8’ or

‘9’, and secondly Sh. Paramjeet Anand in para 5 of the plaint has

categorically given the date of payment by the Ministry of

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Rehabilitation to the legal heirs of the grandfather (i.e Sh. Nathuram

Anand) as 26.7.1956. Also in para 8 of the plaint when Sh. Paramjeet

Anand has stated the date of 17.8.1956, the said date is with reference

to the date of the agreement/Sale Deed Ex.PW1/D1 and mention of

receipt of payment by a receipt, but without any date mentioned of the

receipt. In any case even if there is ambiguity as regards the date of

17.8.1956 being or not stated as the date of payment for the Sale

Deed/Ex.PW1/D1 or the date of execution of the agreement being the

Sale Deed, yet on the aspect of actual date of receipt of consideration

from Ministry of Rehabilitation this will have no bearing because of

the date of 26.7.1956 being specifically so mentioned in para 5 of the

plaint of CS(OS) No. 575/2001, and added to this is the suggestion of

date of payment being 26.7.1956 by defendant nos. 1 and 2 themselves

to Sh. Paramjeet Anand on 9.5.2011. It is hence held that date of

payment by Ministry of Rehabilitation is 26.7.1956, and which date is

prior to the date of payment of consideration for the Sale Deed

Ex.PW1/D1 as 17.8.1956.

13.(i) In my opinion, it has to be held that the suit property is an

HUF property. The suit property will have to be an HUF property as

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the plaintiff, in the opinion of this Court, has succeeded in discharging

the burden of proof that the moneys for purchase of the suit property

in terms of the Sale Deed Ex.PW1/D1 of Rs.1,257.10/- were in fact

paid out of the 1/4th share of Sh. Mohan Lal Anand from the sum of

Rs.5,411/- given on 26.7.1956 by the Ministry of Rehabilitation in

terms of Ex.PW1/B because:- (A) the admitted fact is that it is Sh.

Nathuram Anand who had filed the application Ex.PW1/B in the year

1947 (and this is so stated specifically in the application itself where

the name of Sh. Nathuram Anand as the applicant is found as also the

year 1947 at the left hand bottom of this document) and I take this

document to be proved as rightly argued on behalf of Sh. Paramjeet

Anand by placing reliance upon Section 90 of the Indian Evidence Act

because this original document is of the year 1947/1956 (i.e

application being made in the year 1947 and compensation paid of

Rs.5,411/- on 26.7.1956), (B) that there is no dispute between the

parties that Sh. Nathuram Anand died in the year 1948 prior to coming

into force of the Hindu Succession Act, 1956 and thus the properties,

whether moveable or immoveable, of Sh. Nathuram Anand would

therefore devolve upon his four sons with one son being Sh. Mohan

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Lal Anand, the father of the parties (C) since the date of payment

written by the Ministry of Rehabilitation for a sum of Rs.5,411/- is on

26.7.1956, and that the amount of Rs.1,257.10/- paid on 17.8.1956 to

the DLF Housing and Construction Limited for the Sale

Deed/Ex.PW1/D1 dated 12.10.1956 is from the amount of Rs.5,411/-

received just around 21 days earlier on 26.7.1956 vide Ex.PW1/B in

view of the depositions of Sh. Virender Kumar Anand/PW-4 and that

on such an important deposition if the same was to be challenged on

behalf of Sh. Mohan Lal Anand and Sh. Naresh Chander Anand then

there had to be specific cross-examination that the amount of

Rs.5,411/- which was received from the Ministry of Rehabilitation

vide Ex.PW1/B was not divided among the four brothers, however

indubitably there is no specific cross-examination on this part of

evidence of PW-4 of Rs.5411/- being divided among four brothers and

there is only a general cross-examination at the end of cross-

examination that the witness PW-4 is deposing falsely.

(ii) Also since admittedly Sh. Mohan Lal Anand was only 24 years

of age in the year 1956, therefore in my opinion merely because of

admission of Sh. Paramjeet Anand in his cross-examination conducted

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on 9.5.2011 that his father was working even prior to his birth, the said

admission would not automatically mean and it has to be held that the

father Sh. Mohan Lal Anand had with him that much saving from his

earning (that too at the age of 24 years) for buying an immovable

property being the suit property on payment of the consideration of

Rs.1,257.10/-. As already noted above, the compensation which was

received from the Ministry of Rehabilitation was on 26.7.1956 of the

amount of Rs.5,411/-, and the consideration paid of Rs. 1,257.10/-

under the Sale Deed for the suit property is 21 days thereafter on

17.8.1956 clearly showing co-relation between the payment received

by Sh. Mohan Lal Anand, being 1/4th of the amount of Rs. 5,411/-, and

payment of consideration made soon thereafter to DLF Housing and

Construction Limited for purchase of the suit property.

(iii) I therefore hold that in view of compensation application of Sh.

Nathuram Anand to the Ministry of Rehabilitation Ex.PW1/B, the

specific deposition of Sh. Virender Kumar Anand as PW-4, of

Rs.5411/- being divided among the four sons of Sh. Nathuram Anand

and to which there is no specific cross-examination, with the factum of

close proximity of 21 days between the disbursement of compensation

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by Ministry of Rehabilitation of Rs.5,411/- and the payment for

purchase of the suit property by Sh. Mohan Lal Anand from DLF

Housing and Construction Limited on 17.8.1956, it has to be held that

the suit property was purchased by Sh. Mohan Lal Anand out of the

funds inherited by him from his father Sh. Nathuram Anand who died

in the year 1948 and funds were therefore HUF funds in the hands of

Sh. Mohan Lal Anand, hence the suit property purchased from such

funds has to be taken and is taken as an HUF property in the hands of

Sh. Mohan Lal Anand though the sale deed is only in the name of Sh.

Mohan Lal Anand.

14. The consequence of holding that the suit property is an

HUF property is that even if Sh. Mohand Lal Anand is taken to have

expired leaving behind his Will dated 9.3.2005, Sh. Mohan Lal Anand

could have at best made a Will of his 1/5th share in the suit property in

favour of Sh. Naresh Chander Anand, and which aspect of proof of the

Will and its effect, is otherwise dealt with hereinafter.

15.(i) That takes us to the issue no.3 as to whether Sh. Mohan

Lal Anand died leaving behind his Will dated 9.3.2005.

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(ii) In my opinion, Sh. Naresh Chander Anand has been successful

in proving this Will dated 9.3.2005 because this Will is proved

through the deposition of the attesting witness to the Will Sh. Rajan

Mahajan. Sh. Rajan Mahajan has deposed as DW-5. In his affidavit

by way of evidence dated 22.3.2012 Sh. Rajan Mahajan, who is an

Advocate, has deposed with respect to due execution and attestation of

the Will and Sh. Mohan Lal Anand being of sound disposing mind.

This witness has also deposed with respect to his appearing before the

Sub-Registrar at the time of registering of the Will on 14.3.2005 when

he again met the executant Sh. Mohan Lal Anand and the other

attesting witness Sh. Satish Kumar. This witness has also deposed that

in addition to the due execution and attestation of the Will, the thumb

impression of Sh. Mohan Lal Anand was once again taken by the Sub-

Registrar on the Will in the presence of the attesting witnesses and that

Sh. Mohan Lal Anand again put his signatures on the back page of the

Will in the presence of the attesting witness at the time of registration

of the Will by the Sub-Registrar. This witness has further deposed

with respect to the aspects of stamp being put of registration of the

Will at the back side of the page of the Will, and of signing of the Will

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by him and the other attesting witness Sh. Satish Kumar at the time of

registration.

16. In addition to the aforesaid facts, whereby the Will dated

9.3.2005 of Sh. Mohan Lal Anand is proved, I would in the facts of

this case also like to draw an inference in favour of due execution and

registration of the Will as per Section 114 of the Indian Evidence Act

which provides that courts have to draw a presumption that official

acts would have been properly performed. The Will is undoubtedly a

registered Will, and therefore in the facts of the present case I hold

that the Sub-Registrar would have duly ensured the official act

required of putting questions of the factum with respect to execution

of the Will by Sh. Mohan Lal Anand and the attesting of the Will by

the attesting witnesses, and that all three persons being the executant

and the two attesting witnesses had again signed in the presence of the

Sub-Registrar.

17.(i) Though learned counsel for Sh. Paramjeet Anand sought

to argue that the Will is not proved by arguing existence of

discrepancy in the cross-examination of Sh. Rajan Mahajan because

allegedly Sh. Rajan Mahajan stated at one place that he was consulted

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by Sh. Mohan Lal Anand in a few cases before execution of the Will

but that he further stated that Sh. Rajan Mahajan met with Sh. Mohan

Lal Anand only for the first time on 14.3.2005, and further that there is

a discrepancy that the witness Sh. Rajan Mahajan has allegedly stated

that he signed the Will on 14.3.2005 whereas the Will is dated

9.3.2005.

(ii) In my opinion however none of these arguments urged on

behalf of Sh. Paramjeet Anand have any substance because there is no

contradiction in the deposition of Sh. Rajan Mahajan as is sought to be

argued by Sh. Paramjeet Anand inasmuch as the set of questions put to

Sh. Rajan Mahajan in his cross-examination on 17.7.2012 are to be

seen in a series as a whole and such questions and answers only show

that Sh. Rajan Mahajan deposed with respect to he being consulted by

Sh. Mohan Lal Anand in certain cases prior to the first meeting for

execution of the Will and the question allegedly being misinterpreted

by Sh. Paramjeet Anand of signing of the Will by Sh. Rajan Mahajan

only on 14.3.2005 is a misplaced one because when Sh. Rajan

Mahajan answered the question as to when did Sh. Mohan Lal Anand

actually come before Sh. Rajan Mahajan and Sh. Rajan Mahajan

CS(OS) No.575/01 conn. matters Page 23 of 60
stated that this was on 14.3.2005, but this question and answer is part

of the series of questions pertaining to the Will and therefore answer

of Sh. Rajan Mahajan of signing on 14.3.2005 is as regards the date of

coming on 14.3.2005 for the registration of the Will. There is therefore

no inconsistency of date of execution of the Will and registration of

the Will because there are two separate dates of 9.3.2005 and

14.3.2005, first date being of execution of the Will and second date

being of registration of the Will.

(iii) Also, I reject the argument urged on behalf of Sh. Paramjeet

Anand that merely by putting suggestions in cross-examination it is

proved that deceased Sh. Mohan Lal Anand was not of sound mind for

execution of the Will dated 9.3.2005, and this is more so because Sh.

Mohan Lal Anand was defendant no.1 in the suit being CS (OS) No.

575/2001 and he besides filing his written statement regularly

contested the suit including by personally appearing in the suit till the

time of his death in the year 2005.

(iv) I therefore hold that Sh. Naresh Chander Anand has been

successful in proving the Will dated 9.3.2005 as validly executed by

Sh. Mohan Lal Anand.

CS(OS) No.575/01 conn. matters Page 24 of 60

18. However, it is noted that even if the Will of Sh. Mohan

Lal Anand is proved, at best Sh. Naresh Chander Anand would only

get 1/5th share of the suit property on account of there being five

coparceners being the father Sh. Mohan Lal Anand and his four sons,

and which share of 20% of Sh. Naresh Chander Anand would get

increased to 40% in case it is held that the mother Smt. Sushila Rani

Anand did not become an absolute owner because of Section 14(2) of

the Hindu Succession Act. If Section 14(1) of the Hindu Succession

Act applies and the mother has died intestate leaving behind the four

sons of Sh. Mohan Lal Anand and Smt. Sushila Rani Anand, then each

son of Sh. Mohan Lal Anand and Smt. Sushila Rani will have 1/4 th

right each in the suit property. The aspect as to what is the meaning

and interpretation to be given to the Will dated 9.3.2005, as to whether

the said Will has to be taken as conferring in favour of the mother

Smt. Sushila Rani Anand, widow of Sh. Mohan Lal Anand as absolute

ownership or only a life-estate as stated in the Will and after the death

of Smt. Sushila Rani Anand the suit property vesting absolutely as an

exclusive owner with Sh. Naresh Chander Anand as mother only had

a life-estate, will now be thereafter examined.

CS(OS) No.575/01 conn. matters Page 25 of 60

19. The Will Ex.DW1/B dated 9.3.2005 states that by the

Will life-estate is given by the executant Sh. Mohan Lal Anand in

favour of his widow Smt. Sushila Rani Anand and that after her death

the suit property was to be inherited by his son Sh. Naresh Chander

Anand as an absolute owner. Great deal of arguments were addressed

on this aspect as to whether or not there is application of Section 14(1)

of the Hindu Succession Act whereby the life-estate bequeathed to

Smt. Sushila Rani Anand did or did not become full estate/ownership.

This relevant portion of the Will dated 9.3.2005 of Sh. Mohan Lal

bequeathing life-estate to his wife Smt. Sushila Rani Anand is

reproduced as under:-

“My wife Smt. Sushila Rani shall hold and enjoy all my movable and
immovable properties including the house bearing No-J-5/129, Rajouri
Garden, New Delhi possessed by me at present and also which I may
acquire in future during her life time and she will be having only life
interest in the said properties and after her death all these properties shall
be inherited by my son Naresh Chander Anand. In case, my life
predeceases me, all my movable and immovable properties including the
aforesaid house J-5/129, Rajouri Garden New Delhi shall be inherited by
my son Naresh Chander Anand, who would become, the sole and
exclusive owner of the said properties. My other sons including their
family members hires etc, shall have absolutely no right of share in the
said properties.”

20.(i) The case of the plaintiff Sh. Paramjeet Anand is that the

effect of Smt. Sushila Rani Anand widow of Sh. Mohan Lal Anand

getting a life-interest in the suit property, will convert this life-interest

CS(OS) No.575/01 conn. matters Page 26 of 60
into a complete ownership because of Section 14(1) of the Hindu

Succession Act and for this purpose reliance is placed upon the

judgment of the Supreme Court in the case of C. Masilamani

Mudaliar and Others vs. The Idol of Sri Swaminathaswami

Swaminathaswami Thirukoli and Others (1996 )8 SCC 525 . This is

a judgment of a Division Bench of three judges of the Supreme Court

and which holds that any right of a life-estate in an immovable

property which is given to a Hindu widow for maintenance, since this

right is given in recognition of the pre-existing right of the Hindu

widow to get maintenance from her husband, both under the shastric

law and/or the statutory provision of right to maintenance under the

Hindu Adoptions and Maintenance Act, 1956 therefore such life-estate

which is granted because of the pre-existing right of a Hindu widow,

would convert itself into a full estate/full ownership in view of Section

14(1) of the Hindu Succession Act. I note that the relevant provision

of the Hindu Adoptions and Maintenance Act entitling a wife to

maintenance from her husband is the provision of Section 18(1) of this

Act. The relevant paras of the judgment in the case of C. Masilamani

CS(OS) No.575/01 conn. matters Page 27 of 60
Mudaliar (supra) are paras 4,5,6,12,26,27,28 and 29 and these paras

read as under:-

“4. The appellants are the alienees from Sellathachi, widow of
Somasundaram Pillai who had executed a Will, Ex. A-3 on 16-7-1950
bequeathing the suit properties to his wife and his cousin’s widow
Janakathachi mentioning thereunder as follows:

“Whereas I have no male or female issues and my wife (1) Sellathachi
and (2) Janakathachi, wife of my senior paternal uncle’s son
Thabasuya Pillai are living with me and in my family and other than
the other 2 persons, there is none else in my family. Amongst the
aforesaid persons, the aforesaid Janakathachi has got only maintenance
relationship and none else in my family have any right in the share or
have maintenance relationship. I am duty-bound to provide
maintenance for the aforesaid two persons and I have no other duty to
be performed. Therefore, after my lifetime, the undermentioned A
Schedule property valued at Rs 2000 shall be got by the aforesaid two
persons and shall be enjoyed in equal shares without any right to
alienate the same and perform the charities as per their wish and after
the lifetime of both the aforesaid persons, Govindasrasan Pillai, s/o
Peria Pillai, of the aforesaid Eduvankudi Village shall be the trustee of
A Schedule property and with the income derived from the
undermentioned land shall perform the pooja to the idol at
Swamimalai Sri Swaminatha Swami Devasthanam, Kumbakonam
Taluk, every month on the Krithigai Star Day and also do the charity
of feeding the poor on the aforesaid day, and also shall put up the
lamps everyday at the Subramania Swamiar Temple of the aforesaid
Edavankudi Village and perform the pooja and the charity of feeding
the poor every month on the Krithigai Star Day. Further in respect of
the undermentioned B Schedule property valued at Rs 1000, after my
lifetime, the aforesaid Govindasrasan Pillai himself shall be the trustee
and from the revenue derived from the aforesaid property shall
perform the pooja and the charity of feeding the poor as detailed above
to the aforesaid Swaminatha Swami and the aforesaid Subramania
Swamy. Amongst the aforesaid Sellathachi and Janakathachi, if one of
the persons were to die survived by the other, the surviving member
shall have the right to enjoy the A Schedule property in its entirety.
This Deed of Will shall come into force only after my lifetime, and I
shall have the right and authority to change or cancel this Deed of Will
during my lifetime.”

5. Somasundaram Pillai died in September 1950. The legatees
Sellathachi and another had come into possession of the properties.
Janakathachi died in the year 1960. In 1970, Sellathachi had appointed a

CS(OS) No.575/01 conn. matters Page 28 of 60
power of attorney holder who had alienated the suit properties and the
appellants had purchased them under registered sale deed. The suit was
filed for declaration that the legatees having succeeded to limited estate
under the Will, the alienations made by Sellathachi were illegal. The trial
court decreed the suit. The learned Single Judge allowed the appeal and
dismissed the suit and in LPA No. 161 of 1988 dated 2-7-1992, the
Division Bench of the High Court has set aside the decree of the Single
Judge holding that the legatees had succeeded to restricted estate under
sub-section (2) of Section 14 of the Hindu Succession Act, 1956 (for short
„the Act‟) and that, therefore, their rights have not blossomed into absolute
estate. Thus, this appeal by special leave.

6. The question, therefore, is: whether Sellathachi, the widow of
Somasundaram Pillai, had become the absolute owner, by operation of
Section 14(1) of the Act? Recital of the Will clearly indicates that the
testator was conscious of the pre-existing legal position, namely, he was
under an obligation to maintain his wife and also moral obligation to
maintain his cousin’s wife. He stated that “I am duty-bound to provide
maintenance for the aforesaid two persons and I have no other duty to be
performed.” He had stated that after his lifetime the two legatees would be
entitled to take possession of the properties and enjoy the same in equal
share without any right to alienate and to perform the charities as per his
last wish. He also mentioned that if one of the legatees predeceases, the
other surviving member would have the right to enjoy the properties
mentioned in the Will. The right to maintenance and a charge on her
husband’s properties are pre-existing legal rights available to her.

xxxxx xxxxx xxxxx

12. It is true, as rightly contended by Shri Rangam, learned counsel for
the respondent, that a Bench of two Judges of this Court
in Gumpha v. Jaibai considered the effect of the Will and had held that
property acquired under the Will does not fall under Section 14(1). In that
case, the Will was executed in the year 1941 and the testator died in 1958
after the Act had come into force. Therefore, this Court had held that she
acquired right to maintenance under the Will as a restricted estate and by
operation of Section 30 of the Act read with Section 14(2), she acquired a
limited estate. The learned Judges appear to have construed the operation
of sub-section (2) of Section 14 in the light of the language mentioned in
the Will. It would be seen that the Will was executed in the year 1941. As
per pre-existing law in 1941, she had only a right to maintenance. The
learned Judges proceeded on the premise that a Hindu male’s power to
dispose of his property being absolute, it includes right to create limited or
restricted estate in favour of a female. By operation of Section 30 of the
Act the restricted estate under the Will comes under sub-section (2) of
Section 14 as it is not a device under which she acquired the property
under sub-section (1) thereof. However, the learned Judges noted that if

CS(OS) No.575/01 conn. matters Page 29 of 60
the maintenance was given in recognition of a pre-existing right, such an
acquisition of property was taken out of sub-section (2) to promote the
object of Section 14. The manner of acquisition under sub-section (1)
includes inheritance etc. specifically mentioned in sub-section (1) before
the commencement of the Act. Therefore, it was held that it does not
include acquisition by Will. The construction of sub-sections (2) and (1)
being consistent with Section 30 of the Act led to that conclusion, in the
view of the learned Judges, that the words “in lieu of” or “arrears of” for
maintenance appeared to be significant.

xxxxx xxxxx xxxxx

26. It is true that Section 30 of the Act and the relevant provisions of
the Act relating to the execution of the Wills need to be given full effect
and the right to disposition of a Hindu male derives full measure
thereunder. But the right to equality, removing handicaps and
discrimination against a Hindu female by reason of operation of existing
law should be in conformity with the right to equality enshrined in the
Constitution and the personal law also needs to be in conformity with the
constitutional goal. Harmonious interpretation, therefore, is required to be
adopted in giving effect to the relevant provisions consistent with the
constitutional animation to remove gender-based discrimination in matters
of marriage, succession etc. Cognizant to these constitutional goals, Hindu
Marriage Act, Hindu Adoption and Maintenance Act, Hindu Succession
Act, etc. have been brought on statute removing the impediments which
stood in the way under the Sastric law. Explanation I to Section 14(1)
gives wide amplitude to the acquisition of property in the widest
terms. It is merely illustrative and not exhaustive. The only condition
precedent is whether Hindu female has a pre-existing right under the
personal law or any other law to hold the property or the right to
property. Any instrument, document, device etc. under which Hindu
female came to possess the property — moveable or immovable — in
recognition of her pre-existing right, though such instrument, document
or device is worded with a restrictive estate, which received the colour
of pre-existing restrictive estate possession by a Hindu female, the
operation of sub-section (1) of Section 14 read with Explanation I, remove
the fetters and the limited right blossoms into an absolute right.

27. As held by this Court, if the acquisition of the property attracts
sub-section (1) of Section 14, sub-section (2) does not come into play. If
the acquisition is for the first time, without any vestige of pre-existing
right under the instrument, document or device etc. then sub-section (2) of
Section 14 gets attracted. Sub-section (2) being in the nature of an
exception, it does not engulf and wipe out the operation of sub-section (1).
Sub-section (2) of Section 14 independently operates in its own sphere.
The right to disposition of property by a Hindu under Section 30 is
required to be understood in this perspective and if any attempt is made to

CS(OS) No.575/01 conn. matters Page 30 of 60
put restriction upon the property possessed by a Hindu female under an
instrument, document or device, though executed after the Act had come
into force, it must be interpreted in the light of the facts and circumstances
in each case and to construe whether Hindu female acquired or possessed
the property in recognition of her pre-existing right or she gets the rights
for the first time under the instrument without any vestige of pre-existing
right. If the answer is in the positive, sub-section (1) of Section 14 gets
attracted. Thus construed, both sub-sections (1) and (2) of Section 14 will
be given their full play without rendering either as otiose or aids as means
of avoidance.

28. In Gumpha case though the Will was executed in 1941 and the
executor died in 1958 after the Act had come into force, the concept of
limited right in lieu of maintenance was very much in the mind of the
executor when Will was executed in 1941 but after the Act came into
force, the Will became operative. The restrictive covenant would have
enlarged it into an absolute estate; but unfortunately the Bench had put a
restrictive interpretation which in our considered view does not appear to
be sound in law.

29. The legatee Sellathachi had right to maintenance under the
Hindu Adoption and Maintenance Act when the property was given to
her for maintenance. It must be in lieu of her pre-existing right to
maintenance and the property given under the Will, therefore, must
be construed to have been acquired by the legatee under the Will in
lieu of her right to maintenance. That right to maintenance to a Hindu
female received statutory recognition under the Hindu Adoption and
Maintenance Act, 1956. She is entitled to realise maintenance from
property of her husband and even in the hands of strangers except the
bona fide purchasers for value whether notice of her right. She is
equally entitled under Section 37 of the Transfer of Property Act to have
charge created over the property for realisation of her maintenance. On the
demise of the testator, she being the Class I heir but for the bequeath, is
entitled to succeed as an absolute owner. In either of those circumstances,
the question emerges whether she acquires a limited right under Section
14(2) for the first time under the Will. In the light of the facts and
circumstances of the case and the legal setting, we are of the considered
view that she having had under Sastric law, as envisaged in the Will, the
properties in recognition of her pre-existing right to maintenance, it is not
a right acquired for the first time under the instrument Will, but it is a
reflection of the pre-existing right under the Sastric Law, which was
blossomed into an absolute ownership after 1956 under Section 14(1) of
the Act. Under these circumstances, it cannot be held that Sellathachi
acquired the right to maintenance for the first time under the
instrument Will. The Division Bench, therefore, does not appear to
have approached the problem in the correct perspective. In view of
the settled legal position right from Tulasamma case the right

CS(OS) No.575/01 conn. matters Page 31 of 60
acquired under the Will is in recognition of the pre-existing right to
maintenance known under the Sastric law and was transformed into
an absolute right under Section 14(1) wiped out the restrictive estate
given under the Sastric law and Sellathachi as absolute owner of the
property. The Division Bench of the High Court, therefore, was not correct
in holding that Sellathachi has acquired only a limited estate under the
Will and Section 14(2) attracts to the restrictive covenants contained in the
Will limiting her right to maintenance for lifetime and, thereafter, the right
to enjoy the income from the lands and on her demise, the income should
go to the temples as mentioned in the Will is not correct in law.”

(emphasis added)

(ii) Reliance on behalf of the plaintiff Sh. Paramjeet Anand (and the

counsel appearing for Sh. Ramesh Chander Anand) is also placed

upon the judgments delivered by this Court in the cases of Reena Jain

Ors. Vs. Rajiv Kumar Saxena (2016) 159 DRJ 139 and Dalip

Kumar Vs. Gopal Jain Manu DE/1874/2016 wherein this Court by

relying on the ratio of C. Masilamani Mudaliar’s case (supra) has

held that where a Will as per its language only gives a life-estate to a

widow, yet such life-estate has to be taken as being granted to the

widow on account of the pre-existing right of maintenance as

contained in Hindu Adoptions and Maintenance Act, and therefore

once there is a pre-existing right then the immovable property which is

received by virtue of the pre-existing right, will not be taken as life-

estate but the life-estate would get converted to a full ownership

because of Section 14(1) of the Hindu Succession Act.

CS(OS) No.575/01 conn. matters Page 32 of 60

21. On behalf of Sh. Naresh Chander Anand, it is argued that

if a Will only gives a life-estate, such life-estate cannot be converted

into a full estate as per Section 14(1) of the Hindu Succession Act. It

is argued by placing reliance upon a judgment of the Supreme Court in

the case of Sharad Subramanyan Vs. Soumi Mazumdar and Others

AIR (2006) SC 1993 that if a Will grants only life-interest then the

life-interest has to be read as a life-interest and it cannot be converted

into a full ownership because only life-interest has to be taken as being

granted under the Will, and therefore Section 14(2) of the Hindu

Succession Act applies and not Section 14(1) of the Hindu Succession

Act. The relevant observations of the Supreme Court in the case of

Sharad Subramanyan (supra) relied upon by Sh. Naresh Chander

Anand are contained in paras 3,4,14,17 and 18 of the judgment and

these paras read as under:-

“3. Kamal Kumar Mitra entered into an agreement dated 22-5-1988
with T.K. Ramasubramanyan (father of Sharad Subramanyan, hereinafter
“the appellant”) by which a tenancy was created in respect of the ground
floor flat of certain premises situated at 13/1, Promothesh Barua Sarani,
Kolkata (hereinafter “the suit property”) at a monthly rental of Rs 5000.
A further agreement dated 1-11-1988 was made between Kamal Kumar
Mitra and the present appellant Sharad Subramanyan for providing to the
tenants the fittings and fixtures on the ground floor at a monthly charge
of Rs 750. On 24-2-1989, there was a third agreement between Kamal
Kumar Mitra and the appellant Sharad Subramanyan and a fourth on 28-
4-1989, by which the former agreed to lease the whole of terrace of the
existing construction of the suit property to enable the appellant to

CS(OS) No.575/01 conn. matters Page 33 of 60
construct at his cost an additional floor. The demise was for a period of
twenty-one years commencing from 1-4-1989 with a renewal clause for a
further period of twenty-one years after expiry of every period of twenty-
one years. Though the agreement created a lease for such a long period
with a renewal clause, it was not registered.

4. On 19.3.1991, Kamal Kumar Mitra executed his last Will and
Testament under which, he appointed Reba Mitra, his wife, as Executrix
and on her death, the appellant and one Subir Kumar Deb as Executors.
Under the Will, the Testator had given all his movable properties to Reba
Mitra, but she was given only a life interest in the Suit Property. The
Will further provided that on the death of the said Reba Mitra, the
Executors would execute the Will and realise and collect the rents, issues
and profits arising out of the Suit Property and distribute the same in the
manner as prescribed in the Will. Kamal Kumar Mitra died on 26.9.1991
leaving behind his wife, Reba Mitra, as his sole heir.

xxxxx xxxxx xxxxx

14. In C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami
Swaminathaswami Thirukoil the views expressed in Tulasamma (supra)
were reiterated as necessary for carrying forward the intention of the
Parliament to ensure “…that women have an active role in the
development process. Appropriate economic and social reforms should
be carried out with a view to eradicate all social injustice.”: Hence, it was
held that the limited estate, which had been conferred on the legatee in
lieu of the right to maintenance under the Hindu Adoption and
Maintenance Act, 1956, was in recognition of the pre-existing right to
maintenance known under the Shastric law and it became an absolute
right under Section 14(1) and the legatee became the absolute owner of
the property.

xxxxx xxxxx xxxxx

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 tight 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 Mi 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 a
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 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

CS(OS) No.575/01 conn. matters Page 34 of 60
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.

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 tell 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 cm 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.

18. Turning to the facts of the present case, we notice that not only
was there no material to indicate to the High Court that the property
was given to Reba Mitra in lieu of her right of maintenance, but such
an argument was not even advanced before the Court. Even the
impugned judgment of the High Court observes:

“It is not the case of the appellant that at the time when K.K. Mitra
executed the Will, his wife was entitled to enforce her right of
maintenance under the provisions of Hindu Adoptions and
Maintenance Act or otherwise. She had been undisputedly living with
her husband upon her husband’s death till the Will was probated, she
was enjoying the property as her own. Even in terms of the Will dt.
19.3.1991 she had a right of enjoyment in respect of the entire
property.”

The High Court then noticed Section 30 of the Act which empowers a
Hindu possessed of any property to execute a Will; and confer a grant in
favour of another either absolutely or to a limited extent; even to the
extent of depriving his natural heirs from enjoying the estate left by him.
We think that the High Court was right in taking this view. The High
Court also took notice of the fact that there was no material on record
from which it could be concluded that the disposition of life estate in
favour of Reba Mitra in the Will of her husband, Kamal Kumar Mitra,
was in lieu of or in recognition of her right of maintenance.
Consequently, we agree with the finding of the High Court that Reba
Mitra had only a limited right, namely, life interest in the Suit Property.

CS(OS) No.575/01 conn. matters Page 35 of 60

Thus, she could not have created a long-term lease as she has purportedly
done.” (underlining added)

22. On behalf of Sh. Naresh Chander Anand reliance is also

placed upon the observations made by the Supreme Court in the cases

of Gaddam Ramakrishnareddy Ors. Vs. Gaddam Rami Reddy AIR

2011 SC 179, Mst. Karmi Vs. Amru and Ors. AIR 1971 SC 745 and

Sadhu Singh Vs. Gurudwara Sahib Narike and Others (2006) 8 SCC

75. The relevant observations of the Supreme Court in the case of

Sadhu Singh (supra) which are relied upon are paras 1 to 5, 11, 12,

13 and 14, and which read as under:-

“1. One Ralla Singh held some property. It was self- acquired. Isher
Kaur was his wife. They had no children. On 7.10.1968, Ralla Singh
executed a will. Ralla Singh died on 19.3.1977. His widow Isher Kaur on
21.1.1980, purported to gift the property in favour of a Gurdwara. The
appellant filed a suit challenging the deed of gift. He also prayed for
recovery of possession after the death of Isher Kaur. The appellant
claimed that under the will of Ralla Singh, Isher Kaur took only a life
estate and the properties were to vest in the appellant and his brother. On
the terms of the will under which she took the properties, Isher Kaur had
no right to gift the property to the Gurdwara. She was bound by the terms
of the bequest. Isher Kaur and the Gurdwara, contended that the property
received by Isher Kaur on the death of her husband was as his heir and it
was taken by her absolutely and she was competent to deal with the
property. It was pleaded that in any event, Section 14(1) of the Hindu
Succession Act entitled her to deal with the property as an absolute owner.
The appellant countered that Isher Kaur having taken the property under
the disposition of her husband, was bound by its terms and she had only a
life estate and no competence to donate the property. It was a case to
which Section 14(2) of the Hindu Succession Act applied and the
limitation on rights imposed by the will was binding on Isher Kaur. Her
estate could not get enlarged under Section 14(1) of the Act.

CS(OS) No.575/01 conn. matters Page 36 of 60

2. The trial court held that the will propounded by the
appellant was not genuine. On that basis, it dismissed the suit holding that
Isher Kaur had taken the property absolutely on the death of her husband
as an heir and under the circumstances she was entitled to donate the
property to the Gurdwara. The appellant filed an appeal. Pending the
appeal, on 17.6.1996, Isher Kaur died. The lower appellate court held that
the will propounded by the appellant was proved to be the last will and
testament of Ralla Singh. The appellant had proved its due and valid
execution. The will was thus upheld. The Court held that on the terms of
the Will, Isher Kaur had only a life estate or limited interest in the
property and she had no right to transfer the property by way of gift. Since
Isher Kaur had taken the property under the will which placed a restriction
on her right, Section 14(2) of the Hindu Succession Act applied.
Consequently, the appellant as the legatee under the will was entitled to
recover possession of the property on the termination of the life estate of
Isher Kaur. Thus the trial court decree was reversed and the suit decreed.
On behalf of the donee Gurdwara, a Second Appeal was filed in the High
Court. The High Court, by what can even charitably only be called a
thoroughly unsatisfactory judgment, reversed the decision of the lower
appellate court. It did not strain its thought process. Purporting to apply
the ratio of the decision of this Court in V. Tulasamma v. V. Shesha Reddi
and Raghubar Singh v. Gulab Singh that court held that Section 14(1) of
the Act applied to the case. It did not refer to the decisions relied on, on
behalf of the appellant herein. Though it accepted the finding of the
appellate court on the genuineness and due execution of the will by Ralla
Singh, it did not specifically deal with the question whether Section 14(2)
of the Act was attracted to the case. Thus, reversing the decision of the
lower appellate court, the High Court dismissed the suit. The appellant –
plaintiff, is before us challenging the decision in Second Appeal.

3. The finding that Ralla Singh had executed a will on
7.10.1968 rendered by the lower appellate court has not been upset by the
Second Appellate Court. In fact, it has considered the Second Appeal on
the basis that the will has been executed and the property came to Isher
Kaur on the basis of that Will. What it has presumably held is that Isher
Kaur had pre-existing right in the property and consequently the limitation
placed on her rights in the Will, could not prevail in view of Section 14(1)
of the Hindu Succession Act. It did not bear in mind that the property was
the separate property or self-acquired property of Ralla Singh and his
widow, though might have succeeded to the property as an absolute and
sole heir if Ralla Singh had died intestate on 19.3.1977, had no pre-
existing right as such. The widow had, at best, only a right to maintenance
and at best could have secured a charge by the process of court for her
maintenance under the Hindu Adoptions and Maintenance Act in the
separate property of her husband. May be, in terms of Section 39 of the
Transfer of Property Act, she could have also enforced the charge even as

CS(OS) No.575/01 conn. matters Page 37 of 60
against an alienee from her husband. Unlike in a case where the widow
was in possession of the property on the date of the coming into force of
the Act in which she had a pre-existing right at least to maintenance, a
situation covered by Section 14(1) of the Hindu Succession Act, if his
separate property is disposed of by a Hindu male by way of testamentary
disposition, placing a restriction on the right given to the widow, the
question whether Section 14(2) would not be attracted, was not considered
at all by the High Court. It proceeded as if the ratio of V. Tulasamma
(supra) would preclude any enquiry in that line.

4. Under Section 18 of the Hindu Adoptions and Maintenance
Act, a Hindu wife is entitled to be maintained by her husband during her
life time, subject to her not incurring the disqualifications provided for in
Sub-section (3) of that Section. The widow is in the list of dependants as
defined in Section 21 of the Act. The widow remains a dependant so long
as she does not remarry. Under Section 22, an obligation is cast on the
heirs of the deceased Hindu to maintain the dependant of the deceased out
of the estate inherited by them from the deceased. Under Sub-section (2),
where a dependant has not obtained by testamentary or intestate
succession, any share in the estate of a Hindu dying after the
commencement of the Act, the dependant would be entitled, but subject to
the provisions of the Act, to maintenance from those who take the estate.
It is seen that neither Section 18 relating to a wife nor Section 21 dealing
with a widow, provides for any charge for the maintenance on the property
of the husband. To the contrary, Section 27 specifies that a dependant’s
claim for maintenance under that Act, shall not be a charge on the estate of
the deceased unless one would have been created by the will of the
deceased, by a decree of court, by an agreement between the dependant
and the owner of the estate or otherwise. Thus a widow has no charge on
the property of the husband. Section 28 provides that where a dependant
had a right to receive maintenance out of an estate, that right could be
enforced even against a transferee of the property if the transferee had
notice of the right, or if the transfer is gratuitous, but not against a
transferee for consideration without notice of the right. Section 28 is in
pari materia with Section 39 of the Transfer of Property Act. The Kerala
High Court in Kaveri Amma v. Parameswari Amma and Ors. has liberally
interpreted the expression “right to receive maintenance” occurring in the
section as including a right to claim enhanced maintenance against the
transferee. The sum and sub-total of the right under the Hindu Adoptions
and Maintenance Act is only to claim maintenance and the right to receive
it even against a transferee. In the absence of any instrument or decree
providing for it, no charge for such maintenance is created in the separate
properties of the husband.

5. In the case on hand, since the properties admittedly were
the separate properties of Ralla Singh, all that Isher Kaur could claim de
hors the will, is a right to maintenance and could possibly proceed against

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the property even in the hands of a transferee from her husband who had
notice of her right to maintenance under the Hindu Adoptions and
Maintenance Act. No doubt, but for the devise, she would have obtained
the property absolutely as an heir, being a Class I heir. But, since the
devise has intervened, the question that arises has to be considered in the
light of this position.

xxxxx xxxxx xxxxx

11. On the wording of the section and in the context of these decisions,
it is clear that the ratio in V. Tulasamma v. V. Shesha Reddi (supra) has
application only when a female Hindu is possessed of the property on the
date of the Act under semblance of a right, whether it be a limited or a pre-
existing right to maintenance in lieu of which she was put in possession of
the property. The Tulasamma ratio cannot be applied ignoring the
requirement of the female Hindu having to be in possession of the
property either directly or constructively as on the date of the Act, though
she may acquire a right to it even after the Act. The same is the position in
Raghubar Singh v. Gulab Singh (supra) wherein the testamentary
succession was before the Act. The widow had obtained possession under
a Will. A suit was filed challenging the Will. The suit was compromised.
The compromise sought to restrict the right of the widow. This Court held
that since the widow was in possession of the property on the date of the
Act under the will as of right and since the compromise decree created no
new or independent right in her, Section 14(2) of the Act had no
application and Section 14(1) governed the case, her right to maintenance
being a pre-existing right. In Mst. Karmi v. Amru and Ors., the owner of
the property executed a will in respect of a self-acquired property. The
testamentary succession opened in favour of the wife in the year 1938. But
it restricted her right. Thus, though she was in possession of the property
on the date of the Act, this Court held that the life estate given to her under
the will cannot become an absolute estate under the provisions of the Act.
This can only be on the premise that the widow had no pre- existing right
in the self-acquired property of her husband. In a case where a Hindu
female was in possession of the property as on the date of the coming into
force of the Act, the same being bequeathed to her by her father under a
will, this Court in Bhura and Ors. v. Kashi Ram, after finding on a
construction of the will that it only conferred a restricted right in the
property in her, held that Section 14(2) of the Act was attracted and it was
not a case in which by virtue of the operation of Section 14(1) of the Act,
her right would get enlarged into an absolute estate. This again could only
be on the basis that she had no pre-existing right in the property. In Sharad
Subramanyan v. Soumi Mazumdar and Ors. this Court held that since the
legatee under the will in that case, did not have a pre-existing right in the
property, she would not be entitled to rely on Section 14(1) of the Act to
claim an absolute estate in the property bequeathed to her and her rights

CS(OS) No.575/01 conn. matters Page 39 of 60
were controlled by the terms of the will and Section 14(2) of the Act. This
Court in the said decision has made a survey of the earlier decisions
including the one in Tulasamma. Thus, it is seen that the antecedents of
the property, the possession of the property as on the date of the Act and
the existence of a right in the female over it, however limited it may be,
are the essential ingredients in determining whether Sub-section (1) of
Section 14 of the Act would come into play. What emerges according to
us is that any acquisition of possession of property (not right) by a female
Hindu after the 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.

12. 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 absolutely.
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.

13. 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 testamentary 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.

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

CS(OS) No.575/01 conn. matters Page 40 of 60
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 otios.
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.” (underlining added)

23. Before referring to the observations of different

judgments of the Supreme Court which have been relied upon by the

parties, it is required to be noted that it is the law that a decision

rendered by a larger number of judges of a Division Bench of the

Supreme Court will prevail over a judgment given by Division Bench

of a lesser number of judges. This is being stated because the decision

of C. Masilamani Mudaliar (supra) is a decision of three judges

whereas the decisions of the Supreme Court in Sharad

Subramanyan’s case (supra) and Sadhu Singh’s case (supra) are of

two judges.

24.(i) Let us first discuss as to what is the ratio of the judgment

of the Supreme Court in the case of C. Masilamani Mudaliar (supra)

with reference to the relevant observations given by the Supreme

CS(OS) No.575/01 conn. matters Page 41 of 60
Court in different paras of the said judgment. Supreme Court in the

judgment in the case of C. Masilamani Mudaliar (supra) specifically

overruled the judgment of a Division Bench of two judges of the

Supreme Court in the case of Gumpha (Smt.) Others Vs. Jaibai

(1994) 2 SCC 511 and which had held that where a Will gives a life-

estate then such life-estate will remain a life-estate as the Will is an

instrument falling under Section 14(2) of the Hindu Succession Act as

a Hindu male has full freedom to deal with his estate and therefore the

Hindu male can create only a life-estate by his Will and such life-

estate given will not become full estate/ownership. Therefore, before

we go to the relevant observations of the Supreme Court in C.

Masilamani Mudaliar’s case (supra) let us see what were the facts of

Gumpha’s case (supra) and the ratio laid down by the Supreme Court

in Gumpha’s case (supra). In Gumpha’s case (supra) the issue was

that whether the life-estate given to a widow under a Will does or does

not get converted into a full estate because of Section 14(1) of the

Hindu Succession Act when by a Will specifically only a life-estate is

bequeathed. The issue has been specifically stated by the Supreme

CS(OS) No.575/01 conn. matters Page 42 of 60
Court in paras 1 to 3 of Gumpha’s case (supra) and these paras read

as under:-

“1. Does the life estate of a widow under a will executed in 1941 gets
enlarged into an absolute estate under Section 14(1) of the Hindu
Succession Act, 1956 (in brief ‘the Act’) if the-succession opened after
death of the testator in 1958 is the question of law that arises for
consideration in this appeal directed against the judgment and order of the
Bombay High Court (Nagpur Bench).

2. How the dispute arose may be narrated, in brief, to determine if the
High Court committed any error of law in setting aside the concurrent
orders passed by the two courts below dismissing the suit of the plaintiff –
respondent for declaration of title and recovery of possession. It has been
found and is not disputed that the last male holder had two wives. He
executed a will of his property in 1941 giving one half share to each of his
wives till their life and the respondent, the only daughter, was to be
ultimate beneficiary. The testator died in 1958. The next to die in 1966
was one of his wives, the stepmother of the plaintiff. But, few months
before her death, she had executed a will in favour of the defendant-
appellant, a complete stranger to the family, allegedly her domestic
servant. It is the validity of this will, basically, which has been subject
matter of dispute. According to the respondent, the will was invalid as her
mother having right of maintenance, only, she had no right or title which
she could validly transfer by way of will in favour of the appellant. On
pleadings of parties various issues were framed. It is not necessary to
narrate them as the finding on the nature of interest that the mother of the
respondent had in the property, was recorded both by the trial court and
First Appellate Court in her favour. It was held that her mother had life
interest only. But the suit was dismissed as the life estate created under the
will stood converted into absolute estate under Section 14(1) of the Act as
it was in recognition of pre-existing right. The High Court did not agree
with this and held that the widow could not get larger interest than that
was intended by the testator. Thus execution of the will by the last male
holder in 1941, grant of life interest to the two wives, vesting of property
ultimately in the daughter, death of testator in 1958, his wife whose share
is now in dispute in 1966 and bequeathing of the property by her in favour
of the appellant few months before her death are facts which have been
found to have been proved by all the courts. The difference arose between
the High Court and the two courts below on applicability of the law only.

3. What, therefore, falls for consideration is if the testamentary
disposition of property by a male Hindu by a will which comes into
operation after 1956, creating life interest in favour of his widow, subsists
as such after his death or she becomes an absolute owner by operation of

CS(OS) No.575/01 conn. matters Page 43 of 60
Sub-section (1) of Section 14 read with the explanation. In other words,
what is the dichotomy between two sub-sections of Section 14 which
forms the bedrock of revolutionary changes brought out in Hindu Law of
succession in 1956. The Act was one out of the series of legislations
enacted in 1956 effecting far reaching changes in the customary Hindu
Law. It undid the social injustice to which the females were subjected for
centuries by equating them with males in matters of inheritance,
succession and disposition of property. The Act confers rights of
inheritance and sweeps away the traditional limitations on powers of
females on disposition of property etc. which were regarded under the
Hindu Law as inherent in her estate (S.S. Munna Lal v. S.S. Raj Kumar).
They too became, ‘a stock of descent’ (Kalawatibai v. Soiryabai). A
female Hindu who, except for stridhan property, was a limited owner
became an absolute owner under Section 14 of the Act? The section not
only removed the disability from which a female suffered in acquiring and
holding property but it converted any estate held by her on the date of
commencement of the Act from limited or restricted estate to an absolute
estate or full ownership. (See S.S. Munna Lal v. S.S. Raj Kumar Bai
Vijia v. Thakorbhai Chelabhai ) In Thota Sesharathamma v. Thota
Manikyamma, it was observed that Section 14(1) was used as a tool to
undo past injustice to elevate her to equal status with dignity of person on
par with man’. In Kalawatibai (supra) it was observed that this, ‘Section
was a step forward towards social amelioration of women who had been
subjected to gross discrimination in matter of inheritance‟.

(underlining added)

(ii) On these questions framed, the Supreme Court in Gumpha’s

case (supra) held that the life-estate which is given under a Will falls

within the scope of Section 14(2) of the Hindu Succession Act and not

within the scope of Section 14(1) of the Hindu Succession Act and the

life-estate granted by a Will is not converted into a full ownership.

The relevant observations of the Supreme Court so holding are

contained in paras 6, 7, 9, 11 and 12 of Gumpha’s case (supra), and

these paras read as under:-

CS(OS) No.575/01 conn. matters Page 44 of 60

“6. 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 recognised. 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.

7. Law being thus and power of a Hindu to dispose of his property
‘being absolute including the right to create limited or restricted estate in
favour of a female the question is, does she take a life interest or she
becomes an absolute owner by virtue of operation of Section 14 of the Act
in respect of property which comes into her possession on death of the
testator after 1956? Will under Indian Succession Act, which applies to
Hindu Succession Act, as well, operates from the date of death of testator.
Since on the date the last male holder died the Act applied the
testamentary disposition made by him was governed by Chapter III of the
Act. To this extent there can be no dispute. But when he died and the
property came into possession of his widow the question is what right she
got absolute under Section 14(1) or limited under the will by operation of
Section 14(2) of the Act. The purpose and objective of Section 14 has
been explained earlier. Its reach, too, is very wide. In V. Tulasamma v.
Shesha Reddy, it was held that the explanation appended to the Section
enlarges its ambit further by expanding the meaning of word ‘property’ to
include both moveable and Immovable properties acquired by a female
Hindu in any of the manner mentioned therein. Thus any property
possessed by a female Hindu if it is covered in Sub-section (1) then by
operation of law she becomes absolute owner of it. The meaning of the
words ‘possessed’ and ‘any property’ was explained to have been used in
wide and broad sense as including whatever the ‘kind of property and
possessed either actually or constructively or in ‘any form recognized by
law’. The wide and extensive meaning to ‘advance social purpose of
legislation’ was recognised as far back as 1962 in S.S. Munna Lal’s case,
was reiterated in Mangal Singh v. Shrimati Rattno, reaffirmed in Badri
Pershad v. Smt. Kanso Devi, advanced further in Tulasamma’s case
(supra) and has not been deviated since then. Fazal Ali, J. in Tulasamma
deduced following principles in this regard:

“In the light of the above decisions of this Court the following
principles appear to be clear:

(1) that the provisions of Section 14 of the 1956 Act must be liberally
construed in order to advance the object of the Act which is to enlarge

CS(OS) No.575/01 conn. matters Page 45 of 60
the limited interest possessed by a Hindu widow which was in
consonance with the changing temper of the times;

(2) it is manifestly clear that Sub-section (2) of Section 14 does not
refer to any transfer which merely recognises a pre-existing right
without creating or conferring a new title on the widow. This was
clearly held by this Court in Badri Pershad’s case (supra);
(3) that the Act of 1956 has made revolutionary and far-reaching
changes in the Hindu society and every attempt should be made to
carry out the spirit of the Act which has undoubtedly supplied a long
felt need and tried to do away with the individuals distinction between
a Hindu male and female in matters of intestate succession;
(4) that Sub-section (2) of Section 14 is merely a proviso to Sub-
section (1) of Section 14 and has to be interpreted as a proviso and not
in a manner so as to destroy and not in a manner so as to destroy the
effect of the main provision.”

xxxxx xxxxx xxxxx

9. The Court by interpretative process, thus, removed the anomaly
arising out of ‘inapt drafting’ by construing Sub-section (1) widely and
reading Sub-section (2) as a proviso. But this wide meaning has to be so
read as to be in conformity with Section 30 and Sub-section (2) of Section

14. Tulasamma’s case (supra) was concerned with the right of
maintenance granted to a widow in a decree. It became necessary,
therefore, to evolve the principle of pre-existing right. That is if the
maintenance was given in recognition of pre-existing right then such
acquisition of property was taken out of Sub-section (2) to promote the
objective of Section 14. But if that concept is extended to a will executed
under Section 30 it would militate against express provision in Section 30
and Sub-section (2) of Section 14. The right of maintenance explained in
Tulasamma and reiterated in Bai Vijia’s case was the one recognised under
customary Hindu Law to maintain a widow, daughter-in-law, a mother as
a member of the joint family property. It would not operate where a Hindu
is bequeathing his property in exercise of his right under Section 30 of the
Act. In G. Appaswami Chettiar v. R. Sarangapani Chettiar, it was held by
this Court that where a female got a life estate under a will executed by
her father, she was not entitled to claim absolute rights under Section
14(1) and her claim was covered by Section 14(2). In Kothi
Satyanarayana v. Galla Sithaya, a life estate created under a Deed of
Settlement was held to be an instrument contemplated under Sub-section
(2) and, therefore, a female Hindu was held not to have acquired better
right than what was given to her under the instrument. That the legislature
was aware of the unrestricted power of a Hindu to dispose of his property
in any manner he considered proper subject to such restrictions as were
operating in different schools is clear from Sub-section (2) of Section 14.
It does not curtail or erode the absolute estate which comes into operation

CS(OS) No.575/01 conn. matters Page 46 of 60
by law but excludes from it specifically the property acquired in the
manner mentioned therein. That is if any property is acquired by a female
Hindu as provided in Sub-section (2) then it would be beyond the purview
of Sub-section . (1). Reason for it was that the legislature never intended
to confer larger estate on females than on males. If a Hindu could
bequeath his property of which he was capable of and could create life
interest or restricted estate for a male it would have been incongruous to
create an absolute estate in favour of female. Sub-section (2) of Section 14
was read as proviso or exception to Sub-section (1) so that it may impinge
as little as possible on . the broad sweep of the ameliorative provision
contained in Sub-section (1). In Tulasamma it was observed that, ‘it cannot
be construed in a manner which would rob sub-section of its efficacy and
deprive a Hindu female of the protection sought to be given to her by Sub-
section (1)’. True it is an exception to Sub-section (1) and should be read
in such a manner as not to rob Sub-section (1), ‘of that modicum of
certainty which it mast always . possess’. Yet the field of operation of the
two sub-sections is independent and separate. The legislature while
obliterating the dark side of Hindu Law could not have intended to
encroach upon right which existed under customary law and which it
widened by adding explanation to Section 30.

xxxxx xxxxx xxxxx

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:

“Section 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 her own skill or exertion, or by purchase or by
prescription, or in any other manner whatsoever, and also any such
property held by her as Stridhana immediately before the
commencement of this Act.

(2) Nothing contained in Sub-section (1) shall apply to any property
acquired by way of gift or under a will or any other instrument or
under a decree or order of a civil court of under an award where the

CS(OS) No.575/01 conn. matters Page 47 of 60
terms of the gift, will or other instrument of 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 by the first part the operations of Sub-section
(1) is extended to both moveable and Immovable 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
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 he
extended to those acquisition which are specifically dealt with by Sub-
section (2). Its operation has to be confined to such an acquisition which is
not covered by subsection (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 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 then what was enjoyed by a male Hindu.

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In Tulasamma’s case 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; Kuldeep Singh v. Surain Singh; and Dindayal v.
Rajaram) 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 subsection (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.”

(underlining added)

25. It is therefore seen that in Gumpha’s case (supra) there

was a Will executed in favour of the widow which specifically gave

only a life-estate. Supreme Court held in Gumpha’s case (supra) that

the life-interest/life-estate in favour of a widow did not convert the

life-interest/life-estate into a full ownership because by a Will a Hindu

male had a right to give restricted ownership in his property to his

widow. Supreme Court has in para 9 in Gumpha’s case (supra)

specifically held that legislature was aware of the unrestricted power

of the Hindu male to dispose of his property and which is recognized

as Section 14(2) of the Hindu Succession Act and therefore such right

to give full estate by a Hindu male cannot be curtailed by converting

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the life-estate into full estate and the Will granting the life-estate has

to be taken as a document/instrument which is covered under Section

14(2) and not Section 14(1) of the Hindu Succession Act. In para 12

of the judgment in Gumpha’s case (supra) Supreme Court has

observed that a Hindu can bequeath his interest even in a joint

property and the effect on the right of the widow of the testator given

as life-estate for maintenance is for maintenance and not in lieu of

maintenance i.e life-estate is given for maintenance and not in lieu of

maintenance, and consequently the life-estate granted to the widow

falls under Section 14(2) and not under Section 14(1) of the Hindu

Succession Act.

26. In the judgment in the case of C. Masilamani Mudaliar

(supra) it is seen that the Will was dated 16.7.1950 and under the Will

the property which was given to the widow was to provide for the

maintenance of the widow. In spite of the fact that the Will in the case

of C. Masilamani Mudaliar (supra) gave the property towards

maintenance yet the Supreme Court held that the property which was

given for maintenance by such wording of the Will, however the

property given as a life-estate has to be taken as being given towards a

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pre-existing right of maintenance which existed under the shastric law

and/or Hindu Adoptions and Maintenance Act and therefore the

property given as life-interest for maintenance would be converted

into a full ownership. In para 12 of the judgment in the case of C.

Masilamani Mudaliar (supra) reference is made to the judgment in

the case of Gumpha (supra) and it is observed that judgment in the

case of Gumpha (supra) proceeded on the basis that the right of a

Hindu male to dispose of his property is absolute and therefore there is

a right to create a limited/restricted estate/life-estate in favour of a

female but however if the right to maintenance can be read as being

given in recognition of pre-existing rights as per C. Masilamani

Mudaliar’s case (supra), then the property given for maintenance

would be taken out of Section 14(2) and would be included under

Section 14(1) of the Hindu Succession Act. Para 26 of the judgment

in the case of C. Masilamani Mudaliar’s (supra) holds that when

interpretations have to be given to the provision of a statute then the

same should be in conformity with the constitutional goals to remove

any handicap or discrimination against a Hindu female and all that

was required for a property which is given as a life-estate to a Hindu

CS(OS) No.575/01 conn. matters Page 51 of 60
female for becoming a full owner thereof was that the Hindu female

must be found to have a pre-existing right either under the personal

law or any other law of the country and that this personal law or other

law would include right to maintenance under the law of the country

which is the Hindu Adoptions and Maintenance Act. This is so

categorically clarified in the very first line of para 29 of the said

judgment where it is specified that the widow in C. Masilamani

Mudaliar’s case (supra) had a pre-existing right to maintenance under

the Hindu Adoptions and Maintenance Act when the property was

given to her for maintenance. I would like to note that the provision

of Hindu Adoptions and Maintenance Act which is not stated in para

29 is the provision of Section 18 of the Hindu Adoptions and

Maintenance Act which gives right to the wife for maintenance from

the property of her husband. Second line of para 29 of the judgment

in the case of C. Masilamani Mudaliar’s (supra) lays down a specific

ratio that once there is a pre-existing right of a Hindu wife to

maintenance because of the Hindu Adoptions and Maintenance Act,

then because of this reason the property given to the Hindu female has

to be taken in lieu of her pre-existing right to maintenance and

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therefore the property given under the Will for a limited right of a life-

estate, the life-estate will blossom into full ownership because of

Section 14(1) of the Hindu Succession Act. Referring to para 28 of

the judgment in the case of Gumpha (supra) in the later para 29 of the

judgment in the case of C. Masilamani Mudaliar (supra), the

Supreme Court has observed in the case of C. Masilamani Mudaliar

(supra) that the restrictive interpretation put by the Bench of two

Judges in the case of Gumpha (supra) that the life-estate will remain

a life-estate is not sound in law and the Division Bench in the case of

Gumpha (supra) did not approach the problem from a correct

prospective by interpreting right of life-estate given under the Will

only as a life-estate and not to have become a full ownership which it

should be as per Section 14(1) of the Hindu Succession Act. In para

29 by referring to V. Tulasamma and Others Vs. Sesha Reddy (Dead)

by Lr’s (1977) 3 SCC 99, it is observed that a right acquired under a

Will can be because of pre-existing right of maintenance under the

shastric law, and once that pre-existing right to maintenance exists,

under the shastric law then because of Section 14(1) of the Hindu

Succession Act the restrictive estate given under the shastric law is

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wiped out and the widow becomes absolute owner of the property.

The judgment in the case of Gumpha (supra) was therefore set aside

by holding that what is required to be seen is not the language of the

Will as to whether by the Will a Hindu husband gave the property to

the wife as a life-estate or for maintenance but the issue was whether

what is given as a life-estate or maintenance to the widow/wife is or is

not because of a pre-existing right, and that since a pre-existing right

clearly exists either under a shastric law or under Section 18 of the

Hindu Adoptions and Maintenance Act, and once there does exist a

pre-existing right for a life-estate to be created or for maintenance to

be given, then the limited interest/life-interest/life-estate will get

converted into the full ownership because of Section 14(1) of the

Hindu Succession Act which specifically lays down that once there is

a pre-existing right then what is given pursuant to a document being a

Will would not result in a restrictive estate but the life-estate would

become a full ownership.

27. I may note that though in the case of Sharad

Subramanyan (supra) the Division Bench does make reference to the

judgment of C. Masilamani Mudaliar (supra) , however reference is

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made to the judgment of C. Masilamani Mudaliar (supra) without

referring to the specific ratio laid by the judgment in C. Masilamani

Mudaliar (supra) in paras 29 and 30 of the judgment and which paras

have already been reproduced above by this Court. Also, in the case

of Sharad Subramanyan (supra) it had escaped the attention of the

Hon‟ble Supreme Court that in the case of C. Masilamani Mudaliar

(supra), Gumpha’s case (supra) was specifically overruled and which

Gumpha’s case (supra) had held that a life-estate given to the Hindu

wife/widow would remain as life-estate and would not get converted

into a full ownership. The Supreme Court held that the ratio in

Gumpha’s case (supra) was not the correct position of law because

the Supreme Court held in the case of C. Masilamani Mudaliar

(supra) that irrespective of the wording of a Will or an instrument

giving property to a Hindu wife/widow as a life-estate for maintenance

this is not an aspect in itself since what has to be seen is whether the

property which is given as maintenance or life-estate is or is not in

recognition of a pre-existing right, and that once there is a pre-existing

right either because of shastric law or because of Section 18 of the

Hindu Adoptions and Maintenance Act, the property given as life-

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estate or maintenance under a Will or any instrument since it is to be

taken in recognition of the pre-existing right, therefore the life-estate

gets converted into a full ownership.

28. Accordingly with utmost respect and humility in my

opinion the Division Bench of two Judges of the Supreme Court in the

case of Sharad Subramanyan (supra) will not bind this Court

although in the case of Sharad Subramanyan (supra) because of use

of the expression „property being given for maintenance‟, the property

given was held to be taken only as a life-estate though the law as laid

down by the larger number of judges of the Division Bench in C.

Masilamani Mudaliar’s case (supra) is that what is important is not

the language of the Will which gives the Hindu widow/wife life-estate

or maintenance from an immovable property, but what is to be seen is

whether the life-estate or maintenance given is because of or not any

pre-existing right of a wife/widow, and which pre-existing right

definitely does exist, prior to passing of the Hindu Adoptions and

Maintenance Act because of the shastric law, or after the passing of

the Hindu Adoptions and Maintenance Act because of Section 18 of

the Hindu Adoptions and Maintenance Act. Therefore with all

CS(OS) No.575/01 conn. matters Page 56 of 60
humility I hold that it is the ratio of the judgment in C. Masilamani

Mudaliar’s case (supra) which will hold the field and not the ratio of

a Division Bench of lesser number of two judges of the Supreme

Court in the case of Sharad Subramanyan (supra).

29. The judgment relied upon by Sh. Naresh Chander Anand

in the case of Sadhu Singh (supra) will again not apply for two

reasons. Firstly, the judgment of Sadhu Singh (supra) does not refer

to the judgment of the Supreme Court by the Division Bench of three

Judges in the case of C. Masilamani Mudaliar (supra). The second

reason is that everything which is observed and held by the Division

Bench of two Judges in Sadhu Singh (supra) is identical to what is

held by the Supreme Court in Gumpha’s case (supra) but the

judgment of the Division Bench of two Judges in Gumpha’s case

(supra) has been over ruled by the Division Bench of three judges in

the case of C. Masilamani Mudaliar (supra). In my opinion,

therefore, Sh. Naresh Chander Anand can take no benefit of the

judgment in the case of Sadhu Singh (supra).

30. For the self same reasons given for holding that Sh.

Naresh Chander Anand cannot take benefit of judgments in the cases

CS(OS) No.575/01 conn. matters Page 57 of 60
of Sadhu Singh (supra) and Sharad Subramanyan (supra), Sh.

Naresh Chander Anand cannot also place reliance upon the judgment

of the Supreme Court in the case of Gaddam Ramakrishnareddy

(supra).

31. Sh. Naresh Chander Anand also cannot seek any benefit

of the judgment in Mst. Karmi’s case (supra) as the said judgment of

two paras does not in any manner lay down any law as regards the

interpretation of Sections 14(1) and 14(2) of the Hindu Succession Act

that whether the life-estate given to a widow is or is not referable to a

pre-existing right of maintenance and that once the right of

maintenance of life-estate given to a widow under a Will is traceable

to a pre-existing right of maintenance (whether under the shastric law

or under the Hindu Adoptions and Maintenance Act); the life-estate or

a right to maintenance given as life-interest will convert into a full

estate and ownership because of Section 14(1) of the Hindu

Succession Act in view of the ratio in the case of C. Masilamani

Mudaliar (supra).

32. In view of the aforesaid discussion, it is held that even if

issue no. 3 is held in favour of Sh. Naresh Chander Anand that Sh.

CS(OS) No.575/01 conn. matters Page 58 of 60
Mohan Lal Anand died leaving his valid Will dated 9.3.2005, yet all the

four sons of Sh. Mohan Lal Anand and Smt. Sushila Rani Anand will be

equal co-owners of the suit property because what is inherited by Smt.

Sushila Rani Anand as a life-estate under the Will of Sh. Mohan Lal

Anand dated 9.3.2005, gets converted to a full ownership as this life-

estate is given to Smt. Sushila Rani Anand because of her pre-existing

right of maintenance under Section 18 of the Hindu Adoptions and

Maintenance Act, and since Smt. Sushila Rani Anand who became the

absolute owner of the suit property has died intestate, all her four sons

being the plaintiff in CS (OS) No. 575/2001 and the defendant nos. 2 to 4

being Sh. Naresh Chander Anand, Sh. Ramesh Chander Anand and Sh.

Suresh Chander Anand will get each 1/4th ownership rights in the suit

property.

33. In view of the aforesaid discussion, issue no. 5 is also

answered against Sh. Naresh Chander Anand holding that he as the

plaintiff in CS(OS) No. 1588/2007 is not entitled to decree of possession

with respect to the ground floor of the suit property.

Relief

In view of the aforesaid discussion, CS(OS) No.575/2001 is

decreed by passing a preliminary decree of partition and consequently

CS(OS) No.575/01 conn. matters Page 59 of 60
each of the four sons of Sh. Mohan Lal Anand and Smt. Sushila Rani

Anand i.e Sh. Paramjeet Anand, Sh. Naresh Chander Anand, Sh. Ramesh

Anand and Sh. Suresh Anand would be 1/4th owner each of the property

bearing no. J-5/129, Rajouri Garden, New Delhi.

List for further proceedings with respect to final decree

proceedings on 23rd July, 2018.

CS(OS) No. 1588/2007 will stand dismissed.

Probate case being Test. Case No.23/2007 is allowed but since the

interest of the sole petitioner is adverse to that of his three other brothers

in the bequeathed property at Rajouri Garden, therefore though probate is

granted to the petitioner, but for acting upon the probate granted the

petitioner so far as property bearing no. J-5/129, Rajouri Garden, New

Delhi is concerned, will never act individually but will always act jointly

with his three other brothers namely Sh. Paramjeet Anand, Sh. Suresh

Chander Anand and Sh. Ramesh Chander Anand. Petitioner will also

file the necessary Administration Bond and Surety Bond as also court

fees payable on a probate petition and only on such aspects being done

would the judgment in the case of Test. Case No.23/2007 become

operative and binding.

APRIL 04, 2018 VALMIKI J. MEHTA, J

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