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Jethu Ram vs Bhimu Through Her Lrs on 28 May, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

R.S.A. No. 640/2007
Decided on: 28.5.2019

.

Jethu Ram …Appellant

Versus

Bhimu through her LRs ….Respondents

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No

For the appellant: Mr. Ajay Kumar, Senior Advocate with
Mr. Dheeraj K. Vashisht, Advocate.

For the respondents: None.

Tarlok Singh Chauhan, Judge

The plaintiff is the appellant, who aggrieved by the

judgments and decrees concurrently passed by the learned

courts below, has filed the instant appeal.

The parties shall be referred to as the “plaintiff”

and “defendant”.

2 Briefly stated the facts leading to filing of the

present appeal are that late Bihu, husband of the defendant,

on 28.6.1986 made a grant of the suit land/property in
1
Whether reporters of Local Papers may be allowed to see the Judgment ?Yes

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favour of the defendant on account of maintenance as finds

recorded in Cr. Revision No.8­M/85. This grant was upheld

.
even by this Court in RSA No. 266/2004 and thereafter the

defendant obtained the possession of the suit property in

Execution Petition No.1­X/05, decided on 27.5.2005. It was

further averred that the grant made by late Bihu to the

defendant was conditional to the effect that the same was till

the life time of the defendant and she would not be able to

transfer the same by way of sale, will, gift or in any other

manner during her life time. Late Bihu made a registered will

in favour of the plaintiff on 27.8.1982 vide which he was

entitled to entire estate of Bihu and also as an adopted son,

which fact was also mentioned in the will. Subsequently

when the possession of the suit property was handed over to

the defendant on 24.5.2005 at the spot, the plaintiff

requested that the entry, as stated in the compromise before

the learned Additional Sessions Judge, Mandi dated

28.6.1986, be incorporated in the revenue papers, but the

same was not done. Hence, the suit.

3 The suit was resisted and contested by the

defendant by filing written statement, wherein preliminary

objections regarding maintainability, cause of action,

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estoppel, valuation and locus standi were taken. On merits, it

was denied that the grant of the suit land/property made by

.
late Bhiu to defendant was conditional to the effect that the

same was during her life time. It was further averred that

there was no such condition ever imposed or agreed by her

in the compromise executed before the learned Additional

District Judge, Mandi on 18.6.1986. She claimed herself to

be an individual

owner of the suit land/property having

every right to enjoy and develop the same as she wished. The

plaintiff had no right, title or interest over the suit land/

property. It was further contended that neither the plaintiff

had right to get executed a registered will in his name of the

suit land/property neither he was the adopted son of late

Bihu.

4 The plaintiff filed replication to the written

statement, wherein averments made in the written statement

were denied and the averments made in the plaint were re­

affirmed and re­asserted.

5 On the pleadings of the parties, the learned trial

court on 5.11.2005 framed the following issues:­

1. Whether the plaintiff is entitled for the decree of
declaration that the defendant is limited owner
in the suit land ? OPP

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2. Whether the plaintiff is entitled for the relief of
permanent prohibitory injunction against the
defendant? OPP

.
3. Whether the plaintiff is entitled for the

reversionary rights after the death of defendant?
OPD

4. Whether the present suit is not maintainable?
OPD
5. Whether the plaintiff has no locus standi to file

the present suit? OPD
6. Whether the plaintiff has no enforceable cause of
action? OPD.

7. Whether the plaintiff has estopped to file the

present suit by his act, conduct and deeds?
OPD.
8. Whether the suit has not been properly valued

for the purpose of court fee and jurisdiction? OPD
9. Relief.

6 After recording the evidence and evaluating the

same, the learned trial court vide judgment and decree dated

13.6.2006 dismissed the suit filed by the plaintiff with costs

by concluding that the suit land/property acquired by the

defendant under Section 14 (1) of the SectionHindu Succession Act

(for short, the “Act”) in lieu of maintenance and the same was

possessed by her on the date of commencement of the Act,

which had ripened into full ownership and therefore, the

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plaintiff was not entitled for the decree of declaration to the

effect that after the death of defendant, he was entitled to

.
succeed to the suit land/property. The appeal against the

same was also dismissed by the learned first appellate court

vide judgment and decree dated 8.10.2007 constraining the

plaintiff to file the instant appeal.

7 On 21.5.2008, the appeal was admitted on

following substantial questions of law:

1. Whether the findings of the learned first appellate

court and the learned trial court are a result of

complete misreading of pleadings, evidence and the
law as applicable to the facts of the case and
particularly document, Exhibit PW1/C, PW1/H, PW1/J

and PW1/K and as such palpably erroneous and
illegal and if so to what effect?

2. Whether the property given to the defendant in lieu
of maintenance in the proceedings under Section 125

Cr.P.C. with the condition that she would be limited
owner till her life time could be considered as her

absolute property or the same is covered by sub­
section (2) of Section 14 of the Hindu Succession Act,
1956?
3. Whether the findings of the Courts below to the
effect that the suit property given to the defendant in
the proceedings under Section 125 Cr.P.C. for her life
time is covered by Section 14(1) of the Hindu

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SectionSuccession Act, 1956 are sustainable in the face of
oral and documentary evidence on the case file?
8 I have heard the learned counsel for the appellant

.

and have also gone through the records of the case carefully.

SUBSTANTIAL QUESTIONS OF LAW NO. 1 to 3:

9 Since all these substantial questions of law are

intrinsically interlinked and interconnected, therefore, they

are taken up together for consideration and are being

answered by common reasoning.

10 The moot question that arises for consideration is

that as to whether the defendant had only a life interest in

the suit property or the same had blossomed into a complete

ownership in terms of the provisions of Act.

11 Section 14 of the Act reads thus:­

“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
sub­section, “property” includes both movable and
immovable property acquired by a female Hindu by
inheritance or devise, or at a partition, or in lieu of
maintenance or arrears of maintenance, or by gift
from any person, whether a relative or not, before, at
or after her marriage, or by her own skill or exertion,

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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 sub­section (1) shall apply to
any property acquired by way of gift or under a will

or any other instrument or under a decree or order of
a civil court or under an award where the terms of
the gift, will or other instrument or the decree, order

or award prescribe a restricted estate in such
property.”

12

Though there is plethora of law on the subject,

however, at this stage, I need only refer to a recent judgment

of the Hon’ble Supreme Court in Jupudy Pardha Sarathy

Vs. Pentapati Rama Krishna and others (2016) 2 SCC 56,

wherein after discussing the entire law on the subject it has

been held that property given to Hindu woman in lieu of her

pre­existing right of maintenance, even if by Will creating

only life interest, the same would get transformed into an

absolute right by operation of Section 14(1). This is because

under the Hindu law, the husband has got a personal

obligation to maintain his wife and if he is possessed

properties, then his wife is entitled to a right to be

maintained out of such properties. This claim of the Hindu

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woman is not a mere formality which is to be exercised as a

matter of concession, grace or gratis but is a valuable,

.
spiritual and moral right. It is apt to reproduce the relevant

observations, which read thus:­

“12. Mr. K.V. Viswanathan, learned senior advocate
appearing for the appellant, confined his argument to
the question of law as to whether the High Court
erred in law in holding that Section14(1) of the Act

will be attracted and the widow Veeraghavamma
have acquired absolute interest in the properties.

Learned counsel made the following submissions:­

12.1 Section 14(1) cannot be interpreted to mean
that each and every Will granting a limited/life
interest in a property to a widow is

deemed/assumed to be in lieu of her maintenance. If
the testator in his Will specifically provides that he is
granting only life interest in the property to his

widow, his right to limit his widows right in the

property is recognized by Section 14(2) of the Hindu
Succession Act, 1956. Further, the testators right to

dispose off his property by will or other testamentary
disposition is recognized by Section 30 of the Hindu
Succession Act, 1956. Therefore, Section 14(1) of the
Hindu Succession Act, 1956 cannot be interpreted in
a manner that renders Section 14(2) and Section 30
of the same Act otiose.
12.2 In Mst. SectionKarmi vs. Amru Ors. (1972)4 SCC 86,
a 3­Judge Bench of this Court held to the effect that
a widow who succeeded to the property of her

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deceased husband on the strength of his will cannot
claim any rights in the property other than those
conferred by the will.. The life estate given to her

.
under the Will cannot become an absolute estate

under the provisions of the SectionHindu Succession Act.
12.3 SectionIn V. Tulsamma vs. Sesha Reddy (1977) 3 SCC

99, this Court clarified the difference between sub­
section (1) and (2) of Section 14, thereby restricting
the right of a testator to grant a limited life interest in

a property to his wife. Learned counsel referred para
62 of the judgment in Tulsamma case.
12.4 V. Tulsammas case involved a compromise

decree arising out of decree for maintenance

obtained by the widow against her husband’s
brother in a case of intestate succession. It did not
deal with situations of testamentary succession.

Therefore, strictly on facts, it may not be applicable
to cases of testamentary succession. However, in

terms of law declared therein, a doubt may arise
whether Section 14(1) may apply to every instance of

a Will granting a limited/life interest in a property to
the widow on the ground that the widow has a pre­

existing right of maintenance.
12.5 This doubt was resolved by the Supreme Court
in SectionSadhu Singh vs. Gurdwara Sahib Narike, (2006) 8
SCC 75, where it was held at paras 13 and 14 that
the right under Sectionsection 30 of the Hindu Succession
Act, 1956 cannot be rendered otiose by a wide
interpretation of Section 14(1) and that these two
provisions have to be balanced.

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12.6 The above view has been subsequently
affirmed by this Court. SectionIn Sharad Subramanayan vs.
Soumi Mazumdar Ors. (2006) 8 SCC 91 (at para

.
20), this Court upheld the contention of the learned

counsel for the respondents therein 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.
12.7 Learned counsel referred para 14 in the case of
SectionShivdev Kaur vs. R.S. Grewal.

12.8 The position of law as recorded in Sadhu

Singhs case and followed subsequently, therefore,
appears to be that the question as to whether Section
14(1) applies to a Will granting life interest to a

widow hinges on the finding by the Court that the
grant was in lieu of maintenance. This leads to the

second arguments.
13. Mr. Viswanathan, learned senior counsel.

submitted the fact that the life interest in property
granted to the widow by way of a Will was actually

in lieu of her maintenance needs to be specifically
pleaded, proved and decided by the Court based on
examination of evidence and material on record.
Further, referring paragraph nos. 17, 22 and 24 of
the decision in SectionG. Rama vs. TG Seshagiri Rao, (2008)
12 SCC 392, learned counsel submitted that issues
are required to be framed and evidence has to be led

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to specifically show that the Will granted interest in
property in lieu of maintenance.
14. It is well settled that under the Hindu Law, the

.
husband has got a personal obligation to maintain

his wife and if he is possessed of properties then his
wife is entitled to a right to be maintained out of such

properties. It is equally well settled that the claim of
Hindu widow to be maintained is not a mere
formality which is to be exercised as a matter of

concession, grace or gratis but is a valuable, spiritual
and moral right. From the judicial pronouncement,
the right of a widow to be maintained, although does

not create a charge on the property of her husband

but certainly the widow can enforce her right by
moving the Court and for passing a decree for
maintenance by creating a charge.

15. The Hindu Married Women’s Right to Separate,
Maintenance and SectionResidence Act, 1946 was enacted

giving statutory recognition of such right and,
therefore, there can be no doubt that the right to

maintenance is a pre­existing right.
16. SectionIn V. Tulsamma and others vs. Sesha Reddy,

AIR 1977 SC 1944, three Judges Bench of this Court
has elaborately considered the right of a Hindu
woman to maintenance which is a pre­existing right.
My Lord Justice Fazal Ali writing the judgment firstly
observed: (SCC pp. 113­14, para 20)
“20. Thus on a careful consideration and
detailed analysis of the authorities
mentioned above and the Shastric Hindu law

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on the subject, the following propositions
emerge with respect to the incidents and
characteristics of a Hindu woman’s right to

.
maintenance:

‘(1) that a Hindu woman’s right to
maintenance is a personal obligation so far

as the husband is concerned, and it is his
duty to maintain her even if he has no
property. If the husband has property then

the right of the widow to maintenance
becomes an equitable charge on his property
and any person who succeeds to the

property carries with it the legal obligation to

maintain the widow;
(2) though the widows right to maintenance
is not a right, to property but it is

undoubtedly a pre­existing right in property
i.e. it is a jus ad rem not jus in rem and it can

be enforced by the widow who can get a
charge created for her maintenance on the

property either by an agreement or by
obtaining a decree from the civil court;

(3) that the right of maintenance is a matter
of moment and is of such importance that
even if the joint property is sold and the
purchaser has notice of the widows right to
maintenance, the purchaser is legally bound
to provide for her maintenance;
(4) that the right to maintenance is
undoubtedly a pre­existing right which

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existed in the Hindu law long before the
passing of the Act of 1937 or the Act of 1946,
and is, therefore, a pre­existing right;

.
(5) that the right to maintenance flows from

the social and temporal relationship between
the husband and the wife by virtue of which

the wife becomes a sort of co­owner in the
property of her husband, though her co­
ownership is of a subordinate nature; and

(6) that where a Hindu widow is in
possession of the property of her husband,
she is entitled to retain the possession in lieu
r of her maintenance unless the person who

succeeds to the property or purchases the
same is in a position to make due
arrangements for her maintenance.

17. Interpreting the provisions of Section 14 of the
Hindu Succession Act, their Lordships observed: (V.

Tulasamma case, SCC pp. 120­21, para 30)
“30. 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 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 sub­section (2) of
Section 14 does not refer to any transfer

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which merely recognises a pre­existing right
without creating or conferring a new title on
the widow. This was clearly held by this

.
Court in Badri Pershad case.

(3) that the Act of 1956 has made
revolutionary and far­reaching 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 invidious
distinction between a Hindu male and female
in matters of intestate succession;
r (4) that sub­section (2) of Section 14 is merely

a proviso to sub­ section (1) of Section 14 and
has to be interpreted as a proviso and not in
a manner so as to destroy the effect of the

main provision.
18. Lastly, His Lordship after elaborate

consideration of the law and different authorities
came to the following conclusions:­ (V. Tulsamma

case, SCC pp. 135­36, para 61)
“61.We would now like to summarise the

legal conclusions which we have reached
after an exhaustive considerations of the
authorities mentioned above on the question
of law involved in this appeal as to the
interpretation of Sections 14(1) and (2) of the
Act of 1956. These conclusions may be
stated thus:

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‘(1) The Hindu females right to maintenance
is not an empty formality or an illusory claim
being conceded as a matter of grace and

.
generosity, but is a tangible right against

property which flows from the spiritual
relationship between the husband and the

wife and is recognised and enjoined by pure
Shastric Hindu law and has been strongly
stressed even by the earlier Hindu jurists

starting from Yajnavalkya to Manu. Such a
right may not be a right to property but it is a
right against property and the husband has

a personal obligation to maintain his wife

and if he or the family has property, the
female has the legal right to be maintained
therefrom. If a charge is created for the

maintenance of a female, the said right
becomes a legally enforceable one. At any

rate, even without a charge the claim for
maintenance is doubtless a pre­existing right

so that any transfer declaring or recognising
such a right does not confer any new title but

merely endorses or confirms the pre­existing
rights.
(2) Section 14(1) and the Explanation thereto
have been couched in the widest possible
terms and must be liberally construed in
favour of the females so as to advance the
object of the 1956 Act and promote the socio­

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economic ends sought to be achieved by this
long needed legislation.
(3) Sub­section (2) of Section 14 is in the

.
nature of a proviso and has a field of its own

without interfering with the operation of
Section 14(1) materially. The proviso should

not be construed in a manner so as to
destroy the effect of the main provision or the
protection granted by Section 14(1) or in a

way so as to become totally inconsistent with
the main provision.
(4) Sub­section (2) of Section 14 applies to

instruments, decrees, awards, gifts, etc.

which create independent and new titles in
favour of the females for the first time and
has no application where the instrument

concerned merely seeks to confirm, endorse,
declare or recognise pre­ existing rights. In

such cases a restricted estate in favour of a
female is legally permissible and Section

14(1) will not operate in this sphere. Where,
however, an instrument merely declares or

recognises a pre­existing right, such as a
claim to maintenance or partition or share to
which the female is entitled, the sub­section
has absolutely no application and the
females limited interest would automatically
be enlarged into an absolute one by force of
Section 14(1) and the restrictions placed, if
any, under the document would have to be

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ignored. Thus where a property is allotted or
transferred to a female in lieu of
maintenance or a share at partition, the

.
instrument is taken out of the ambit of sub­

section (2) and would be governed by Section
14(1) despite any restrictions placed on the

powers of the transferee.
(5) The use of express terms like property
acquired by a female Hindu at a partition, or

in lieu of maintenance, or arrears of
maintenance, etc. in the Explanation to
Section 14(1) clearly makes sub­section (2)

inapplicable to these categories which have

been expressly excepted from the operation
of sub­section (2).
(6) The words possessed by used by the

Legislature in Section 14(1) are of the widest
possible amplitude and include the state of

owning a property even though the owner is
not in actual or physical possession of the

same. Thus, where a widow gets a share in
the property under a preliminary decree

before or at the time when the 1956 Act had
been passed but had not been given actual
possession under a final decree, the property
would be deemed to be possessed by her
and by force of Section 14(1) she would get
absolute interest in the property. It is equally
well settled that the possession of the
widow, however, must be under some

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vestige of a claim, right or title, because the
section does not contemplate the possession
of any rank trespasser without any right or

.
title.

(7) That the words restricted estate used in
Section 14(2) are wider than limited interest

as indicated in Section 14(1) and they
include not only limited interest, but also any
other kind of limitation that may be placed on

the transferee.
19. Mr. Vishwanathan put heavy reliance on the
decision of this Court in the case of Mst. SectionKarmi vs.

Amru (1972) 4 SCC 86. In our considered opinion,

the ratio decided in that case will not apply in the
facts of the present case. In Mst. Karmi case (Supra),
one Jaimal, who was the owner of the property, had

executed a Will directing that on his death, his entire
estate would devolve upon his widow Nihali during

her life and thereafter, the same would devolve upon
his collaterals on the death of Jaimal. The properties

were mutated in the name of Nihali who eventually
died in 1960. On her death, the collaterals claimed

the properties on the basis of Will, but the appellant
claimed the properties as their sole legatee from
Nihali under her Will of 1958. On these facts, it was
held that Nihali having succeeded to the properties of
Jaimal on the strength of Will cannot claim any right
in those properties over and above that was given to
her under the Will. The Court observed that the life
estate given to her under the Will cannot become an

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absolute estate under the provisions of SectionHindu
Succession Act, 1956.
20. The facts in Karmis case and that of the present

.
case are fully distinguishable. In the instant case,

the Will was executed in 1920 in which Subba Rao
has mentioned that his first wife died, the second

wife got two sons and one daughter. Thereafter,
second wife also died. He, then, married to
Veeraraghavamma as a third wife, who is alive. The

executant of the Will have also mentioned the
description of the properties owned by him. He, very
specifically mentioned in the Will that his third wife

Veeraraghavamma shall enjoy for life one tiled house

situated in the compound wall. For that enjoyment, it
was also mentioned in the Will that the widow
Veeraraghavamma shall also be entitled to fetch

water from the well situated in the backyard of a
different house. In other words, the executant of the

Will made arrangements for his third wife to
maintain her enjoyment in the suit schedule property

till her life. The intention of the executant is therefore
clear that he gave the suit schedule property to his

third wife Veeraraghavamma in order to hold and
enjoy the suit property for her maintenance during
her lifetime. It is not a case like Karmi case that by
executing a Will, the executant directed that his
entire estate will devolve upon his widow
Veeraraghavamma.
21. A three Judges Bench of this Court in the case of
SectionR.B. S.S. Munnalal and Others vs. S.S. Rajkumar

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Others, AIR 1962 SC 1493, while interpreting the
provisions of Section 14(1) of the Act observed: (AIR
pp. 1499­1500, para 16)

.
“16. By Section 14(1) the legislature sought

to convert the interest of a Hindu female
which under the Sastric Hindu law would

have been regarded as a limited interest into
an absolute interest and by the Explanation
thereto gave to the expression property the

widest connotation. The expression includes
property acquired by a Hindu female by
inheritance or devise, or at a partition, or in
r lieu of maintenance or arrears of

maintenance, or by gift from any person,
whether a relative or not, before, at or after
her marriage, or by her own skill or exertion,

or by purchase or by prescription, or in any
other manner whatsoever. By Section 14(1)

manifestly it is intended to convert the
interest which a Hindu female has in

property however restricted the nature of that
interest under the Sastric Hindu law may be

into absolute estate. Pratapmull case
undoubtedly laid down that till actual
division of the share declared in her favour
by a preliminary decree for partition of the
joint family estate a Hindu wife or mother,
was not recognised as owner, but that rule
cannot in our judgment apply after the
enactment of the SectionHindu Succession Act. The

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Act is a codifying enactment, and has made
far reaching changes in the structure of the
Hindu law of inheritance, and succession.

.
SectionThe Act confers upon Hindu females full

rights of inheritance, and sweeps away the
traditional limitations on her powers of

dispositions which were regarded under the
Hindu law as inherent in her estate. She is
under the Act regarded as a fresh stock of

descent in respect of property possessed by
her at the time of her death. It is true that
under the Sastric Hindu law, the share given

to a Hindu widow on partition between her

sons or her grandsons was in lieu other right
to maintenance. She was not entitled to claim
partition. But the Legislature by enacting the

Hindu Womens’ Right to SectionProperty Act, 1937
made a significant departure in that branch

of the law; the Act gave a Hindu widow the
same interest in the property which her

husband had at the time of his death, and if
the estate was partitioned she became owner

in severalty of her share, subject of course to
the restrictions on disposition and the
peculiar rule of extinction of the estate on
death actual or civil. It cannot be assumed
having regard to this development that in
enacting Section 14 of the Hindu Succession
Act, the legislature merely intended to
declare the rule enunciated by the Privy

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Council in PratapmuIl case. Section 4 of the
Act gives an overriding effect to the
provisions of the Act.

.
22. Reference may also be made to a three Judges

Bench decision of this Court in the case of Nirmal
Chand vs. Vidya Wanti, (1969) 3 SCC 628. In that

case, by a registered document of partition, the
related right was given to the widow ­ the user of the
land with the condition that she will have no right to

alienate in any manner. This Court holding that the
case falls under Section 14(1) of the Act held as
under: (SCC p. 631, para 6)
r “6. If Subhrai Bai was entitled to a share in

her husband’s properties then the suit
properties must be held to have been allotted
to her in accordance with law. As the law

then stood she had only a life interest in the
properties taken by her. Therefore the recital

in the deed in question that she would have
only a life interest in the properties allotted to

her share is merely recording the true legal
position. Hence it is not possible to conclude

that the properties in question were given to
her subject to the condition of her enjoying it
for a life time. Therefore the trial court as
well as the first appellate court were right in
holding that the facts of the case do not fall
within Section 14(2) of the Hindu Succession
Act, 1956. Consequently Subhrai Bai must
be held to have had an absolute right in the

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suit properties, in view of Section 14(1) of the
Hindu Succession Act.
23. In the case of SectionThota Sesharathamma vs. Thota

.
Manikyamma, (1991) 4 SCC 312, life estate was

granted to a Hindu women by a Will as a limited
owner and the grant was in recognition of pre­

existing right. Following the ratio decided in
Tulasammas case, their Lordships held that the
decision in Mst. Karmi cannot be considered as an

authority on the ambit of Section 14(1) and (2) of the
Act. The Court held: (Thota Sesharathamma, SCC p.
321, paras 9­10)
r “9. It was clearly held in the above case that

Section 14(2) of the Act is in the nature of a
proviso or an exception to Section 14(1) and
comes into operation only if acquisition in

any of the methods indicated therein is made
for the first time without there being any pre­

existing right in the female Hindu to the
property. The Bench consisted of Hon. J.C.

Shah, V. Ramaswamy and A.N. Grover, JJ.

10. The case of SectionMst Karmi v. Amru on which

a reliance has now been placed by learned
counsel for the appellant and petitioners was
also decided by a bench of three Judges
Hon. J.C. Shah, K.S. Hegde and A.N. Grover,
JJ. It may be noted that two Honble Judges,
namely, J.C. Shah and A.N. Grover were
common to both the cases. SectionIn Mst Karmi v.
Amru, one Jaimal died in 1938 leaving his

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24

wife Nihali. His son Ditta pre­deceased him.

Appellant in the above case was the
daughter of Ditta and the respondents were

.

collaterals of Jaimal. Jaimal first executed a

will dated December 18, 1935 and by a
subsequent will dated November 13, 1937

revoked the first will. By the second will a
life estate was given to Nihali and thereafter
the property was made to devolve on Bhagtu

and Amru collaterals. On the death of Jaimal
in 1938, properties were mutated in the
name of Nihali. Nihali died in 1960/61. The

appellant Mst Karmi claimed right on the

basis of a will dated April 25, 1958 executed
by Nihali in her favour. It was held that the
life estate given to a widow under the will of

her husband cannot become an absolute
estate under the provisions of the SectionHindu

Succession Act. Thereafter, the appellant
cannot claim title to the properties on the

basis of the will executed by the widow
Nihali in her favour. It is a short judgment

without adverting to any provisions of
Section 14(1) or 14(2) of the Act. The
judgment neither makes any mention of any
argument raised in this regard nor there is
any mention of the earlier decision in SectionBadri
Pershad v. Smt Kanso Devi. The decision in
Mst Karmi cannot be considered as an

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25

authority on the ambit and scope of Section
14(1) and (2) of the Act.

24. Reference may also be made to the decision of

.

three Judges Bench of this Court in the case of

SectionShakuntala Devi vs. Kamla and Others, (2005) 5
SCC 390, where a Hindu wife was bequeathed life

interest for maintenance by Will with the condition
that she would not have power to alienate the same
in any manner. As per the Will, after death of the

wife, the property was to revert back to his daughter
as an absolute owner. On this fact their Lordships
following the ratio decided in Tulasammas case

(supra) held that by virtue of Section 14(1) a limited

right given to the wife under the Will got enlarged to
an absolute right in the suit property.

25. Mr. K.Ramamurty, learned senior counsel

appearing for the respondent, also relied upon the
decision in the case of Santosh and Others vs.

Saraswathibai and Another, (2008) 1 SCC 465,
SectionSubhan Rao and Others vs. Parvathi Bai and Others,

(2010) 10 SCC 235 and SectionSri Ramakrishna Mutt vs. M.
Maheswaran and Others, (2011) 1 SCC 68.

26. In Santoshs case,(2008) 1 SCC 465 this Court
followed the decision given in Nazar Singhs case,
(1996) 1 SCC 35, and held that the pre­existing right
of wife was crystallized and her limited interest
became an absolute interest in the property
possessed by her in lieu of maintenance.

27. A similar question arose for consideration before
this Court in Subhan Rao case, where a portion of

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26

suit property was given to the plaintiff­wife for her
maintenance subject to restriction that she will not
alienate the land which was given to her

.

maintenance. The question arose as to whether by

virtue of Section 14(1) of the Act she became the
owner of the suit property. Considering all the earlier

decisions of this Court, their Lordships held that by
virtue of Section 14(1) of the Act, the preexisting right
in lieu of her right to maintenance transformed into

absolute estate.

28. In the case of SectionNazar Singh and Others vs. Jagjit
Kaur and Others, (1996) 1 SCC 35, this Court

following the decision in Tulasammas case held as

under: (Nazar Singh case, SCC pp. 38­39, para 9)
“9. Section 14 and the respective scope and
ambit of sub­sections (1) and (2) has been the

subject­matter of a number of decisions of
this Court, the most important of which is the

decision in SectionV. Tulasamma v. Sesha Reddy.
The principles enunciated in this decision

have been reiterated in a number of
decisions later but have never been departed

from. According to this decision, sub­section
(2) is confined to cases where property is
acquired by a female Hindu for the first time
as a grant without any pre­existing right
under a gift, will, instrument, decree, order or
award, the terms of which prescribe a
restricted estate in the property. It has also
been held that where the property is

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27

acquired by a Hindu female in lieu of right of
maintenance inter alia, it is in virtue of a pre­
existing right and such an acquisition would

.

not be within the scope and ambit of sub­

section (2) even if the instrument, decree,
order or award allotting the property to her

prescribes a restricted estate in the property.
Applying this principle, it must be held that
the suit lands, which were given to Harmel

Kaur by Gurdial Singh in lieu of her
maintenance, were held by Harmel Kaur as
full owner thereof and not as a limited owner

notwithstanding the several restrictive

covenants accompany­ing the grant. [Also
see the recent decision of this Court in
SectionMangat Mal v. Punni Devi where a right to

residence in a house property was held to
attract sub­section (1) of Section 14

notwithstanding the fact that the grant
expressly conferred only a limited estate

upon her.] According to sub­section (1), where
any property is given to a female Hindu in

lieu of her maintenance before the
commencement of the SectionHindu Succession Act,
such property becomes the absolute property
of such female Hindu on the commencement
of the Act provided the said property was
possessed by her. Where, however, the
property is given to a female Hindu towards
her maintenance after the commencement of

31/05/2019 21:57:15 :::HCHP
28

the Act, she becomes the absolute owner
thereof the moment she is placed in
possession of the said property (unless, of

.

course, she is already in possession)

notwithstanding the limitations and
restrictions contained in the instrument,

grant or award whereunder the property is
given to her. This proposition follows from the
words in sub­section (1), which insofar as is

relevant read: Any property possessed by a
female Hindu after the commencement of this
Act shall be held by her as full owner and
r not as a limited owner. In other words,

though the instrument, grant, award or deed
creates a limited estate or a restricted estate,
as the case may be, it stands transformed

into an absolute estate provided such
property is given to a female Hindu in lieu of

maintenance and is placed in her
possession. So far as the expression

possessed is concerned, it too has been the
subject­matter of interpretation by several

decisions of this Court to which it is not
necessary to refer for the purpose of this
case.”

(emphasis in original)

29. In Sadhu Singhs case, (2006) 8 SCC 75, the facts
of the case were quite different to that of the present
case. In Sadhu Singhs case, this Court proceeded on
the basis that the widow had no pre­existing right in

31/05/2019 21:57:15 :::HCHP
29

the property, and therefore, the life estate given to
her in the Will cannot get enlarged into absolute
estate under Section 14(1) of the Act.

.

30. Mr. Vishwanathan, learned senior counsel for

the appellants last contention was that in the
absence of any pleading and proof from the side of

the appellant to substantiate the plea that
Veeraraghavamma was occupying the property in
lieu of maintenance, Section 14 will not be

automatically attracted. We do not find any
substance in the submission made by the learned
counsel. Indisputably, Exhibit A­2 is a document

which very categorically provided that the property

in question was given to Veeraraghavamma to enjoy
the same till her life. Neither the genuineness of the
said Exhibit A­2 was disputed nor it was disputed

that Veeraraghavamma was enjoying the property
by way of maintenance. In our considered opinion,

unless the factum of bequeathing the property in
favour of the wife and her continuous possession are

disputed, the question of pleading and proof does not
arise. In other words, no one disputed the

arrangement made in the Will and
Veeraraghavamma continued to enjoy the said
property in lieu of maintenance. Hence, the ratio
decided in G. Ramas case (supra) does not apply.

31. Further, indisputably, Mr. P. Venkata Subba
Rao, the original owner of the property, realized the
fact that his wife Veeraraghavamma was issueless
and she has a pre­existing right to be maintained out

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30

of his property. He further realized that physically he
was weak and may not survive for long period. He
therefore, decided to give his properties to his family

.

members. For the maintenance of his third wife

Veeraraghavamma, he gave the tiled house with site
and compound wall with the stipulation that she

shall enjoy the property for life in lieu of
maintenance. She will also be entitled to fetch water
from the well and use other facilities. Admittedly, no

one disputed the arrangements made in the Will and
Veeraraghavamma continued to enjoy the said
property. In view of the admitted position, we have

no doubt to hold that by virtue of Section 14(1) of the

Act, her limited right became absolute right to the
suit property.

32. In the impugned judgment, the High Court has

elaborately discussed the facts of the case and the
law applicable thereto and came to the conclusion

that the trial court committed serious error of law in
holding that by virtue of Section 14(2) of the Act, her

limited right has not become absolute.

33. Though no specific word has been mentioned in

Exhibit A­2 that in lieu of maintenance life interest
has been created in favour of Veeraraghavamma, in
our opinion in whatever form a limited interest is
created in her favour who was having a pre­existing
right of maintenance, the same has become an
absolute right by the operation of Section 14(1) of the
Hindu Succession Act.

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31

34. After giving our anxious consideration to the
matter and the judicial pronouncements of this Court
in a series of decisions, we hold that the impugned

.

judgment of the High Court is perfectly in accordance

with law and needs no interference by this Court.”
13 In addition to the aforesaid judgment I may

now refer to a Hon’ble three Judges Bench decision of the

Hon’ble Supreme Court in C. Masilamani Mudaliar and

others Vs. Idol of Shri Swaminathaswami

Swaminathaswami Trirukoil and others (1996) 8 SCC

525, wherein it was held that the SectionHindu Marriage Act, Hindu

Adoption and SectionMaintenance Act and SectionHindu Succession Act

etc. have been brought on statute removing the impediments

which stood in the way under the Sastric law. It was further

held that 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 had a pre­existing 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 immoveable ­ in recognition of her pre­existing

right, though such instrument, document or device is worded

31/05/2019 21:57:15 :::HCHP
32

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. It is apt to reproduce the

relevant observations, which read thus:­

“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 gender­based discrimination in
matters of marriage, succession etc. Cognizant to
these constitutional goals, SectionHindu Marriage Act,
Hindu Adoption and SectionMaintenance Act, SectionHindu
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

31/05/2019 21:57:15 :::HCHP
33

exhaustive. The only condition precedent is whether
Hindu female has a pre­existing 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 ­movable or immovable ­ in

recognition of her pre­existing 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 sub­section (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 sub­section (1) of Section 14,sub­
section (2) does not come into play. If the acquisition

is for the first times, without any vestige of pre­
existing right under the instrument, document or

device etc. then sub­section (2) of Section 14 gets
attracted. Sub­section (2) being in the nature of an

exception, it does not engulf and wipe out the
operation of sub­section (1). Sub­section (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 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

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34

circumstances in each case and to construe whether
Hindu female acquired or possessed the property in
recognition of her pre­existing 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 subsections (1) and
(2) of Section 14 will be given their full play without
rendering either as otios or aids as means of

avoidance.”

14 Thus, what can be considered to be well settled

is that the property held by a Hindu female in lieu of pre­

existing right of maintenance, after coming into force the Act,

would blossom into complete ownership and therefore, she

can deal with the same in any manner, she likes, in

accordance with law. No hurdles or fetters can be placed on

such ownership. Substantial questions of law No. 2 and 3

are answered accordingly.

15 As regards substantial question of law No.1, I

really do not find there being any misreading of pleadings,

evidence more particularly, when the facts in question are

not in dispute and pure question of law arises for

consideration in this appeal. Substantial question of law

No.1 is answered accordingly.

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35

16 In view of aforesaid discussion, I find no merit in

.

this appeal and the same is accordingly dismissed leaving the

parties to bear their own costs. Pending application(s), if any,

also stands dismissed.

28.5.2019 (Tarlok Singh Chauhan)
Judge

(pankaj)

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