A. Pakkiathammal (died) and Another vs T. Ramasamy and others

Srinivasan, J.—One Alagappa Pillai, who was the original owner of the suit property and other properties, died to 1942, leaving his second

wife, Pakkiathammal, the first defendant, a son through her by name Sankaran Pillai and the first wife''s daughter Vinayakathammal, the second

defendant. The plaintiffs are the sons of Vinayakathammal: Sankaran Pillai died in 1943. Some disputes arose between the parties on account of an

alienation effected by the second defendant in January, 1986 with reference to an extent of 1.35 acres of land in favour of a stranger treating

herself as the owner of the property. The parties settled their disputes and an agreement between the first defendant and second defendant was

brought into existence on 12-4-1956 by means of a registered deed. The same is marked as Ex.A1. It is necessary to set out the recitals of Ex.A1

as the entire case will depend on the interpretation thereof. The relevant portion of Ex.A1 reads thus:-

The suit property, which is a house, is one of the items found in schedule-I of the document which fell to the share of Pakkiathammal. On account

of heavy rains sometimes prior to the suit, the house was considerably damaged and about to fall down. Alleging that the first defendant was giving

out that she would demolish the building and remove the materials for selling the same, the plaintiff instituted the suit for a declaration that they have

got vested right in the property and consequentially, for the grant of a permanent prohibitory injunction restraining the first defendant from

demolishing the property, removing the materials and selling the same. It is the case of the plaintiffs that Ex.A1 created a vested interest in them in

all the properties covered thereby.

The suit was resisted by the first defendant denying the genuineness of the agreement. It was the contention of the first defendant that the

agreement was brought about by fraud, coercion and misrepresentation It was also contended that the fight of the first defendant had enlarged to

an absolute estate under S.14(1) of the Hindu Succession Act, and that neither the plaintiff nor the second defendant had any right whatever to the

properties.

Both the Courts below negatived the contentions of the first defendant with reference to the validity of Ex.A1, holding that it was not vitiated by

fraud, coercion and misrepresentation. It was further had that under Ex.A1, the plaintiffs got a vested right over the suit property and the first

defendant''s right did not mature into an absolute ownership by virtue of S.14(1) of the Hindu Succession Act. The Courts below took the view

that the first defendant had parted with her right of ownership in the properties under Ex. A1 and had retained only a mere right to possession and

enjoyment which could not enlarge under S.14(1) of the Hindu Succession Act. Consequently, a decree as prayed for by the plaintiff was granted

by the courts below.

Challenging the correctness of the said decree, the first defendant preferred this second appeal. She died on 24-3-1985. During her life time on

22-11-1979 she had executed a will bequeathing her properties in favour of her brother''s wife who filed C.M.P. 9346 of 1985 to bring herself on

record as the legal representative of the deceased appellant. The petition was contested by the respondents and this Court called for a finding from

the Sub-Court. Tenkasi, with regard to the genuineness of the will. The learned Subordinate Judge returned a finding that the will executed by

Pakkiathammal is genuine and valid. Accepting the said finding, this Court permitted the legatee to come on record as the appellant in the place of

the deceased Pakkiathammal.

Learned counsel for the appellant contends that under Ex.A1, the estate of Pakkiathammal was not in any way restricted and she did not give up

or surrender her widow''s estate in the properties left by her husband. It is urged by learned counsel that the recitals of the document are only

setting out the position in law as it stood at that time and cannot be interpreted as restricting the interest of Pakkiathammal to one of life estate. It is

further argued that Ex.A1 recognises the preexisting right of Pakkiathammal in the properties and it is not as if she acquired any interest in the

properties for the first time under Ex.A1 with restrictions enforced thereon. Learned counsel places reliance on the decisions of the Supreme Court

in Thulasamma v. Sesha Reddi AIR 1977 S.C. 1944= 90 L.W. 89 (S.N.) , and Jagannathan Pillai Vs. Kunjithapadam Pillai and Others, and

decisions of two Division Benches, of this Court in Palaniappa alias Balasubramania v. Kuppammal 88 L.W. 236, and Venugopala Pillai v.

Thayanayaki Ammal 92 L.W. 84, for the purpose of invoking the aid of S.14 (1) of the Hindu Succession Act. According to learned counsel, the

right of Pakkiathammal having enlarged into an absolute one, by virtue of the Act, the plaintiffs cannot maintain a claim for vested remainder in the

properties.

In countering the arguments advanced by learned counsel for the appellant, it is contended by learned counsel for the respondents that Ex.A1

represents a family arrangement, whereby Pakkiathammal restricted her own interest in the properties which devolved on her as the heir of her

husband and surrendered her woman''s estate therein. It is urged by learned counsel that there is no prohibition in the Hindu Succession Act,

against a woman giving up her right to any property and any arrangement or transaction therefor will not be hit by S.14 of the Hindu Succession

Act. According to learned counsel, though S.14(2) of the Hindu Succession Act is not applicable to the present case, as the properties were not

acquired by Pakkiathammal, for the first time under Ex.A1, S.14 (1) of the Act is also not applicable as Pakkiathammal had already parted with

her interest before the Act came into force. It is submitted by learned counsel that the arrangement embodied in Ex.A1 is akin to a surrender by

Pakkiathammal of her woman''s estate and a retention of a lesser estate viz., life estate. Learned counsel relied upon the rulings in Seetharama Pillai

v. Sevu Pillai 83 L.W. 226, Unnamalaiammal v. Vellaya Pillai 83 L.W. 717 , of this Court, Kunji Thomman and Others Vs. Meenakshi and

Others, of the Kerala High Court and Sampuran Singh (Deceased) and Others Vs. Labh Singh and Another, , in support of his contention that it

was not open to Pakkiathammal to assert that she has any right in the property higher than that given to her in the family arrangement evidenced by

Ex.A1.

Before considering the various decisions referred to by the learned counsel on both sides, it is necessary to find out what exactly was the

arrangement between the parties under Ex.A1. The terms of Ex.A1 have already been set out in full. It has to be remembered that it is an

arrangement between Pakkiathammal who was the only person on that date entitled to be in possession and enjoyment of the properties holding a

woman''s estate therein on the one hand, and Vinayakathammal, who was only a presumptive reversioner having no subsisting legal right in the

properties on that date. It is not possible to reject the contention of learned counsel for the respondents that Ex.A1, represented a family

arrangement. As stated already, disputes arose because of alienations effected by Vinayakathammal, claiming rights in the properties. It is seen

from the first paragraph of the document that the arrangement was brought about by mediators. The relevant portion in paragraph 1 is to the effect

that the dispute was with reference to the enjoyment of the property. The actual words are�

It is clear that the parties intended only to have a peaceful arrangement for the purpose of future enjoyment of the properties. In the next paragraph

of the document, it is stated that party No. 1, viz., Pakkiathammal, should pay the tax and enjoy the properties described in schedule-I and party

No. 2 Vinayakathammal should enjoy the properties set out in schedule II. It is expressly stated that neither party has any right to encumber any of

the properties excepting an extent of one acre 20 cents of nanja lands in schedule I. The particulars of such alienable lands are set out in the last

paragraph which provides that if there is an absolute necessity, the first party Pakkiathammal has got a right to encumber the same. The third

paragraph states that after the death of Pakkiathammal, Vinayakathammal should enjoy the properties without making any alienation thereof. In the

next clause, the provision is than after the life time of both, the properties are to be taken absolutely by the male heirs of late Alagappa Pillai, who

are the sons of party No. 2.

A reading of the document as a whole shows that Pakkiathammal did not surrender her woman''s estate or restrict her interest to one of life

estate. No doubt, she has agreed not to alienate the properties set apart for her enjoyment excepting an extent of one acre 20 cents. That does not

mean that she had restricted her interest or converted her woman''s estate into a life estate. Whatever might be said about the properties allotted to

Vinayakathammal for her enjoyment, there can be no doubt whatever that in the properties retained by Pakkiathammal for her enjoyment, she had

not parted with any right of ownership therein. Admittedly she had a woman''s estate in those properties. The document only says that in the event

of any absolute necessity, she can encumber an extent of 1 acre 20 cents and with regard to the other properties, she has no right to do so. If at all

it would only amount to a declaration or an assurance on her part that she would not alienate the property. Obviously, it is with a view to preserve

the properties for the grandsons of Alagappa Pillai, viz, the plaintiffs. But there is no clause in the document conveying any interest as such to the

plaintiffs. The clause which declares that, after the lifetime of both the parties to the document, the male heirs of Alagappa Pillai would take the

properties absolutely will not create a vested remainder in favour of the plaintiffs. It is only a statement of law as it obtained at that time. If the

document is to be construed as a surrender of the woman''s estate held by Pakkiathammal, it is not valid in law as the same is not in favour of the

nearest reversioner, viz., Vinayakathammal. It is well settled that it is not possible for a widow to withdraw herself from her husband''s estate in

order that it might vest in somebody other than the next heir of the husband. In favour of a stranger, there can be an act of transfer but not one of

renouncement. Even if the surrender is made in favour of the next heir, with whom a stranger is associated and the widow purports to relinquish the

estate, in order that it might vest in both of them, it will not be valid. Vide Mummareddi Nagi Reddi and Others Vs. Pitti Durairaja Naidu and

Others, .

In this case, it is not a surrender in favour of Vinayakathammal and her sons at the same time, so that the estate could vest in all of them. In fact,

there is no surrender at all with reference to the properties set out in schedule I to the document which were retiled by Pakkiathammal for her own

enjoyment. It is not possible for her in law to create a vested remainder in favour of any other person. If Ex.A1 is to be construed as a transfer or a

conveyance of any particular right such as a vested remainder in favour of the plaintiffs, then it has to satisfy the requirements of the Stamp Act.

Whether as a surrender or as a transfer Ex.A1 could not be treated as a document which validly put an end to the rights of Pakkiathammal as a

woman''s estate holder. If there was no valid alienation of her interest in the properties, the operation of S.14(1) of the Hindu Succession Act could

not be avoided. On the date when the Act came into force in June 1956, Pakkiathammal continued to hold a woman''s estate in the properties. As

she was in possession of the properties at that time her right enlarged into an absolute estate by virtue of the Hindu Succession Act. Hence, I hold

on a construction of Ex.A1, that Pakkiathammal continued to retain her woman''s estate on the date when the Hindu Succession Act came into

force and became an absolute owner of the properties which were in her possession at that time. There is no question of the plaintiffs having any

vested right in the said properties.

In the view I have taken, it is not necessary to refer in detail to the decisions cited by learned counsel for the appellant the principles laid down

in those decisions are not in dispute, but as contended by learned counsel for the respondents, those are cases in which properties were given to

the women concerned in lieu of maintenance or in recognition of their preexisting right in the estates of the deceased male propensities. It is not the

contention of learned counsel for the respondents that the case fall under S.14 (2) of the Hindu Succession Act. Admittedly, the property is not

acquired by Pakkiathammal under Ex.A1 for the first time. The only contention urged is that Pakkiathammal having restricted her interest

voluntarily under the family arrangement is not entitled to dispute the vested rights of the plaintiffs. It will be, therefore, sufficient if the rulings relied

on by learned counsel for the respondents are considered to find out whether this case would be governed by any of them.

Strong reliance is placed upon the decision of Natesan, J., in Seetharama Pillai v. Sevu Pillai 83 L.W. 226, wherein the following statement of

law is found:-

S.14 of the Hindu Succession Act can manifestly have no application to a case of this kind. S.14 enlarges the limited ownership of a Hindu female

under the personal law to full ownership. A Hindu female possessed of property in which but for the status she would have only a limited estate of

what is commonly referred to as a Hindu woman''s or ''widow''s estate'', by virtue of S.14(1) becomes an absolute or full owner of the property.

The section extinguishes the limited estate of a Hindu widow under the personal law and confers on the widow all powers of disposition making her

a fresh stock of descent. A widow''s estate vested in possession, in a Hindu widow under the Act becomes enlarged into a heritable and

transmissible estate, without reversion to the heirs of the last male holder S.14(1) of the Hindu Succession Act only removes disabilities imposed

by the personal law of the Hindu as to the quality of the estate taken by a female Hindu in certain circumstances though the whole estate may be

vested in her and she represents it completely. In the instant case it is S.14(2) that applies. The family settlement which governed the rights of

parties in the instant case does not declare the pre existing title of Visalakshi as the holder of a woman''s estate from her father. The family

settlement was arrived at as a result of contesting claims in the properties put forward and rights under a will whose terms we are not aware of.

The recitals in the document certainly bind the appellant; manifestly he put forward rights to the properties even during the life time of the widows

Maybe he claimed rights under the will, whatever that may be it is well settled that in a family settlement each patty takes a share in the property by

virtue of the independent title which is admitted to that extent by the other parties. As observed by the Supreme Court in Sahu Madho Das and

Others Vs. Mukand Ram and Another, . It is well settled that a compromise or family settlement is based on the assumption that there is an

antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all rights to

property other than that falling to his share and recognising the right of the others as they had previously asserted it, and the portions allotted to

them respectively...It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or in

her so far as property failing to his or her share is concerned.

That being the principle governing a family settlement, Visalakshi must be deemed to have had even prior to the family settlement, only the rights

recognised under the family settlement and no more. After the family settlement, it is not open to any one to assert that they have any higher rights

in the property. All parties to the settlement are bound by its terms. The defence based on the Hindu Succession Act therefore fails.

It is seen from the passage extracted above, that on the facts of that case, there was no evidence as regards the extent of the rights held by the

widows in question prior to the family settlement, to which they were parties. In those circumstances, the principle that the parties to family

settlement must be deemed to have had even prior to the family settlement only those rights which were recognised under the family settlement was

invoked by His Lordship. The decision, therefore, turned on the facts of that case and S.14(2) of the Hindu Succession Act was held applicable.

That ruling will not help the respondent in the present case, as admittedly S.14(2) of the Hindu Succession Act is not applicable and the rights to

which Pakkiathammal was entitled before Ex.A1 are not in doubt or dispute.

The decision in Unnamalai Ammal v. Vellaya Pillai 83 L.W. 717, is rendered on similar facts and the ruling of Natesan, J. in Seetharama Pillai

v. Sevu Pillai 83 L.W. 226, referred to above has been relied upon. That case will not help the respondents.

The judgment of a Division Bench of the Kerala High Court in Kunji Thomman and Others Vs. Meenakshi and Others, , turned on the facts of

that case as seen from the following passage relied on by learned counsel for the respondents�

In order to decide whether the case is governed by sub-S.(1) or sub-S.(2) of S.14, we have to examine the circumstances under which Ex.P1,

was brought into existence. The parties to Ex.P1, are senior Gowri Bai, Parvathi, Raman, defendants 1 and 2 and the plaintiff. On the death of

Vattu Govindan, senior Gowri Bai succeeded to his estate taking a widow''s estate therein. Neither Parvathi nor Lakshmi''s children could have

claimed any interest in the properties during the lifetime of senior Gowribai. The reversion would open only on her death. The allotment of

properties therefore to Parvathi, Raman, first defendant and plaintiff was not on the basis of any pre-existing right. The object of sub-S.(2) of S.14

is only to remove the disability on Hindu woman imposed by law and not to interfere with contracts, grants etc, by which a restricted right is

created in her favour, sub-S.(2) is based on the principle of sanctity of contracts and grants. What the second defendant consented to take under

Ex.P1, is not a woman''s estate but an estate for life with a vested remainder in favour of others. There is nothing on evidence to show that the

allotment of properties to the second defendant was in recognition of her legal right for maintenance attached to the properties of Vattu Govindan.

Ex.P1 is in the nature of a family arrangement under which properties have been allotted even to persons who are not entitled to the same on the

date of Ex.P1. This is therefore a case where the second defendant alleged to be a maintenance-holder consented to allotment of properties not

according to strict legal fights, in a deed which is in the nature of a family settlement and which expressly stated that she had only a life interest in

the properties given to her creating a vested remainder in favour of others.

Their Lordships had found on the facts that there was no legal obligation to maintain the second defendant in that case to whom properties were

allotted for the first time under the document marked as Ex.P1 in that case with restrictions. The ratio of that decision will not apply to the facts of

this case. In fact, the Supreme Court had occasion to make a reference to the aforesaid decision of the Kerala High Court in Tulasamma''s case

AIR 1977 S.C. 1944. The Supreme Court observed that the view taken by the Kerala High Court turned on the facts of that particular case.

Considerable reliance is placed upon the observations of Chinnapa Reddy, C.J., in Sampuran Singh (Deceased) and Others Vs. Labh Singh

and Another, . The law is stated in that decision in the following terms:�

S.14(1) provides that 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. The Explanation to S.14(1) provides that property for the purpose of S.14(1) includes

property acquired by a female Hindu by inheritance or device, or at a partition, or in lieu of maintenance or arrears of maintenance, or any gift from

any person, whether a relative or root, before at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any

other manner whatsoever, and also any such property held by her as a Stridhana. S.14(2) which is in the nature of an exception to sub-S.(1),

provides that nothing contained in sub-S.(1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a

decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a

restricted estate in such property. The clear object of S.14(2) as was pointed out In Rangaswami Naicker Vs. Chinnammal and Another, , was not

to interfere with contracts, grants or decrees etc, by virtue of which woman''s right was restricted though the disability on women imposed by law

was removed by S.14(1). If a donor expressly gave a life interest in some property to a Hindu female, it was not to be enlarged into an absolute

estate. If similarly a Hindu female entered into a contract restricting the nature of her own interest in property to that of a life interest, it was not to

stand enlarged by S.14(1) of the Act. The freedom of the donor to give such interest as he pleased and the freedom of contracting parties to create

such interest as they agreed upon was not meant to be encroached upon by S.14(1). That is the effect of S.14(2). If as a result of some agreement

between the parties, a Hindu female is left with some interest which she already had in the property namely, a Hindu widow''s estate that would

stand enlarged into an absolute estate under S.14(1) of the Act S.14(2) would not be applicable to such a case. On the other hand, if a Hindu

female expressly enters into a contract restricting the interest already possessed by her, the interest so restricted of her own volition or agreement

would not get enlarged as a result of S. 14(1). In such a case, S.14(2) alone would be applicable.

With great respect to the learned Judge, I cannot agree with the proposition that S.14(2) of the Hindu Succession Act would be applicable to

cases in which a Hindu female expressly enters into a contract restricting the interest already possessed by her. S.14(2) of the Hindu Succession

Act would come into play only in cases where a property is acquired for the first time by a woman and in which she had no pre-existing right. That

sub-section will not apply to cases where the woman parts with her interest in favour of others or restricts the interest possessed by her. In cases

where the woman had already alienated her interest partially or in full, S.14(1) of the Hindu Succession Act may not operate to enlarge her interest

into an absolute estate as she had already restricted it voluntarily. To that extent, I am in agreement with the statement of law made by the learned

Judge. But it is not correct to say that S. 14(2) would apply to such cases.

It is, however, seen that on the facts of the case, the learned Judge held that the compromise to which the widow in question was a party did

not restrict her interest in any manner. The learned Judge observed thus�

In the present case, as already stated by me, Gulab succeeded to the property left by her father-in-law and had a life interest in the property.

The compromise did no more than to recognise her preexisting rights in the property. There were no express words restricting her interest. The

statement that she should enjoy the property during her lifetime and maintain herself was no more than a statement of what had to be under the law.

No restriction could be inferred by that statement. If Gulab already possessed life interest in the property and if her interest was in no manner,

restricted by the compromise, it stood automatically enlarged into an absolute interest under S.14(1) of the Act.

In this case too, I have a ready held that Ex.A1 does not restrict in any manner the interest, owned by Pakkiathammal in the properties in her

possession. In the result, it has to be held that the plaintiffs have no right whatever to the suit property and they are not entitled to get the reliefs

prayed for by them as Pakkiathammal became an absolute owner on the passing of the Hindu Succession Act, in June 1956. In fine, the second

appeal is allowed, and the decree and judgment of the Courts below are set aside. The suit O.S. 155 of 1979 on the file of the District Munsif,

Shencottah is dismissed with costs throughout.