Arumuga Goundar vs Nachi Muthu Pillai and others

Ramaswami, J.—This is an appeal arising from the decree and judgment of the learned Subordinate Judge, Dindigul, in A. S. No. 21 of 1954, confirming the decree and judgment of the learned District Munsif, Dindigul in O. S. No. 72 of 1953. Kuppanna Pillai, Ammayappa Pillai and Arumugham Pillai were three brothers who effected a partition 25 years ago. The land in suit fell to the share of Arumugham Pillai. Plaintiffs 1 to 3 are the sons of Kuppana Pillai. Plaintiffs 4 and 5 are the sons of Ammayappa Pillai Arumugham Pillai died in 1949, leaving defendant I. his widow, as his heir Defendant I has mortgaged the suit lands in favour of defendant 2 by a deed dated 3rd February, 1953 for Rs. 2,500.

It is in these circumstances that the plaintiffs have filed a suit for a declaration that the mortgage deed dated 3rd February, 1953 executed by defendant 1 in favour of defendant 2 it not valid and binding upon them, the reversionary, beyond the lifetime of the widow, on the ground that there was no necessity to mortgage the lands and that the mortgage is not supported by consideration.

Defendant 1 remained expert. Defendant 2 contested the suit on the ground that the mortgage was validly executed by the widow for purposes binding upon the estate.

The learned District Munsif came to the conclusion that one portion of the mortgage amount was binding upon the reversionary and that the other portion was not binding upon them. He gave a declaration to that effect. There was an appeal there from and the learned Subordinate Judge confirmed the decree and the judgment of the learned District Munsif. Therefore, the defeated alienee has preferred this Second Appeal.

A preliminary point was taken by the learned Counsel for the appellant, namely, that by reason of S. 14 of the Hindu Succession Act, Act XXX of 1956, which is retrospective in so far as it enlarges a Hindu woman''s limited estate into an absolute estate even in respect of property inherited or held by her as a limited owner before the Act came into force, this reversionary is nowhere now in the picture and cannot obtain the declaration asked for.

It has now become well-settled law that S. 14 of the Hindu Succession Act is retrospective, secondly, that it enlarges limited estates into absolute estates and thirdly, that it applies to all cases, where the widow as in this case was ''''possessed" of the property in controversy when the Act came into force.

The opening words ''''any property possessed by a female Hindu" obviously mean that to come within the purview of the Section, the property must be in the possession of the female concerned at the date of the commencement of the Act. They clearly contemplate the female''s possession when the Act came into force. That possession might have been either actual or constructive or in any form, recognized by law, but unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession taking the word ''''possession" in its widest connotation, when the act came into force, the section would not apply: Gosta v. Haridas 61 C.W.N. 625. The word "possessed'''' in this section refers to possession on the date when the Act came into force. The possession need not be actual physical possession or personal occupation, but may be possession in law. The possession of a licensee, lessee or mortgagee from the female owner or the possession of a guardian or trustee or agent of the female owner would be her possession for the purpose of this section. The word ''''possessed" is used in this section in a broad sense and in the context "possession" means "the state of owning or having in one''s hands or power". It includes possession by receipt of rents and profits. Where, however, before the Act came into force, the female owner had sold away the property in which she had only a limited interest and put the vendee in possession, she should in no sense be regarded as "possessed" of the property when the Act came into force. The object of the Act was to confer a benefit on Hindu females by enlarging their limited interest if they were in possession of the property when the Act came into force. The Act was not intended to benefit an aliened who, with eyes open purchased property from the female limited owners without any justifying necessity before the Act came into force and at a time when the female vendor had only the limited interest of a Hindu woman. It is only the transferor''s interest that would pass to the transferee, and a transferee cannot have a better title than what the transferor had S. 14 merely enlarges her limited interest into an absolute estate in the property held by her when the act came into force and does not enlarge the rights of a purchaser of her limited interest before the Act came into force. The rule of "interest feeding the estoppels" enacted in S. 43 of the Transfer of Property Act would not avail the vendees because the female vendor does not get as absolute estate under S. 14 of the Act in property of which she was not in possession at the date when the Act came into force; Venkayamma v. Veerayya 1956 Andhra W. R. 988. The word "possessed" also includes "will be possessed"; otherwise female inheriting property would not get absolute interest of it: Gosta v. Haridas 61 C.W.N. 328. Thailambal Ammal Vs. Kesavan Nair, .

This state of "being possessed" can get terminated in two ways: (a) by an out and out sale accompanied by delivery of possession or loss of possession and into which alienation the widow is perfectly competent to enter into and which would be binding on the reversionary, except when such alienations are beyond the scope of the widow''s powers and subject to the restrictions placed under the Hindu Law or (b) by dispossession or discontinuance of possession for over the statutory period extinguishing the title of the widow and barring her remedies for recovery of possession.

The term "possession" has been defined as follows: Simply the owning or having a thing in one''s power the present right and power to control a thing; the detention and control of the manual or ideal custody of anything which may be the subject of property, for one''s use of enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one''s place and name: the detention or enjoyment of a thing which a man holds or exercises by himself or by another who keeps or exercises in his name; the act of possessing a having and holding or retaining of property in one''s power or control; the sole control of the property or of some physical attachment to it; that condition of fact under which one can exercise his power over a corporeal thing at his pleasure, to the exclusion of all other persons Emperor Vs. Sita Ram, Nandlal Thakersey v. The Bank of Bombay 12 Bom. L. R. 316. For a full discussion of possession : see M. Krishnaswami''s Law of Adverse Possession. 2nd Edition (1952), Chapter II, page 23 and following :

In this case on 17th June 1956 when the Hindu Succession Act came into force, the widow certainly had a right to redeem the mortgage and had not also alienated the equity of redemption. This is a clear case of the widow being possessed of the property on the date when Act XXX of 1956 came into force.

The decision in Venkayamma v. Veerayya 1956 Andh. W. R. 988 referred to above has also been followed by a Division Bench of this Court, to which I was a party, viz., Marudakkal v. Armugha Gounder A.S. No. 844 of 1953 (since reported in L.W. 57) decided on 15th November 1957.

On this conclusion, it follows that the decrees and judgments of both the Courts below, which were delivered before the coming into operation of Section 14 of the Hindu Succession Act, Act XXX of 1956, and the construction placed on S. 14 in Venkayamma v. Veerayya 1956 Andh. W. R. 988 cannot be sustained. The decree and judgment of the Courts below are hereby set aside and the suit of the plaintiffs is dismissed, but, in the circumstances, without costs.