E.S.R. Packirisamy Pillai vs Vijayalakshmi and Another

Mishra, J.—One Sundaram Pillai executed a Will Exs.A-1 and B-1, on 14.4.1937, on the day the Hindu Women''s Right to Property Act,

1937, came into force, disposing of his properties including the suit property, which is item 8 of A Schedule property in Ex.B-1. The relevant will

recitals are as follows:

Will executed this 14th day of April, 1937 by Ko. Rama Sundaram Pillai, son of Ko. Ram Badra Pillai of Vadakku Pogainallur, Nagapattinam

Taluk, out of free will and in a sound disposing state of mind.

I have become very aged. I am suffering from diabetes for some time and day-by-day I am becoming lean and weak and I have no faith that I will

live long. I want to make arrangement in respect of all the movables/immovable properties owned by. me and I am making this arrangement out of

free will.

The entire properties described in the Schedule below including ""E"" Schedule and ""P"" Schedule properties and the outstandings due to me were all

myself- acquired properties and 1 am owning them exclusively. There is no other person entitled to the same. I have my third wife

Soundaraththammal. I have no other heirs. Therefore my obsequies/ceremonies shall be performed by my divided brother''s son Subramaniam

Pillai son of Seppayam Pillai. The ''A'' Schedule property belonging to me shall be enjoyed by my third wife Soundaraththammal, without any right

of alienation and shall enjoy the income therefrom. After her life time, the entirety of the A Schedule properties shall belong to my elder brother''s

son Subramaniam Pillai son of Seppayam Pillai absolutely with the right of alienation and over this property nobody shall have any rights....

Soundaraththammal, the third wife of Sundaram Pillai, who was given thus life interest with no power of alienation under the Will of her husband

Sundaram Pillai, executed a will on 3.1.1951 as per the original of Ex.B-2, and on 25.11.1974 as per Ex.B-3, a codicil, the combined effect being

that the suit property should devolve on the defendant-appellant after the demise of Soundaraththammal. Soundaraththammal died on 5.3.1975.

The plaintiff-respondent however filed the instant suit alleging that as per the last will and testament executed by Sundaram Pillai, he provided for

the devolution of the property under the various schedules therein, provided for the life interest of his widow Soundaraththammal in respect of the

A Schedule to the will comprising of 9 items including the suit item, and with regard to the other items and the other schedules in the will, gave right

to others including the plaintiff. With respect to A schedule, however, Sundaram Pillai said that after Soundaraththammal''s life time, the entirety of

the A schedule property shall belong to his elder brother''s son Subramaniam (and thereafter the plaintiff) absolutely with the right of alienation.

Sundaram Pillai continued to enjoy the property till his demise on 18.7.1942, and after his death, Soundaraththammal had only a restricted life

enjoyment of the property, and after the death of Soundaraththammal on 5.3.1975, the plaintiff became entitled to the property as per the terms of

the will. The plaintiff-respondent thus claimed the property under the will as absolutely belonging to him after the death of the third wife of

Sundaram Pillai, Soundaraththammal. There were several issues and contentions before the trial court, but it pronounced on the main question

whether u/s 14(1) of the Hindu Succession Act, Act 30 of 1956, (hereinafter referred to as the Act), Soundaraththammal became the absolute

owner and thus acquired right of disposition of the properties described in the Will, Exs.A-1 and B-l, or it was a property given to her under the

will and thus u/s 14(2) of the Act, after her demise, Schedule A properties vested in the plaintiff, and whether disposition of a property so given to

her in favour of the defendant-appellant is valid as she is the widow of Sundaram Pillai, acquired absolute interest in favour of the defendant and

against the plaintiff. The plaintiff preferred an appeal in A.S. No. 1067 of 1980. He, however, died during the pendency of the appeal, and his legal

representatives were brought on record. Nainar Sundaram, J., (as he then was), who finally disposed of the appeal, however, has held as follows:

There are certain features, which have to speak, and if I take note of them, I find that the stand expressed by the learned Counsel for the defendant

cannot be accepted. The first feature is, the recitals in Ex.B-1 do not refer to any pre-existing right of Soundaraththammal against property, such as

her right to maintenance, so as to say, that it was only in recognition thereof, or in confirmation and reiteration thereof, the suit property was given

to her in the manner done under Ex.B-1. If we go by the express recitals in Ex.B-1, it is not possible to spell out a theory that the disposition under

Ex.B-1 of the suit property in favour of Soundaraththammal, was done to confirm, endorse, declare or recognise any pre-existing right of

Soundaraththammal against property. It will be proper and safer to go by the express recitals found in the document itself to find out as to whether

only in recognition of any pre-existing right against property the disposition could be staled to have been made. Another feature, which speaks

against the case of the defendant is that there is no pleading at all that only in recognition or confirmation or declaration of any preexisting right of

Soundaraththammal against property, the suit site was given to her under Ex.B-1. While deciding this question, the parties are bound by their

pleadings, unless the express recitals in the deed do support their cases one way or the other. Here, the express recitals do not in any way indicate

that the disposition was in confirmation or reiteration of declaration of any pre-existing right of Soundaraththammal against property, such as her

right to maintenance. In my view, the recitals being unambiguous and there being no pleading on the part of the defendant that the disposition under

Ex.B-1 was only in confirmation, reiteration and declaration of any pre-existing right of Soundaraththammal against property, there is no scope for

invoking the aid of Section 14(1) of the Act and on the facts of the case, the rigor of Section 14(2) alone must rule. The third feature is, that even

assuming that without pleadings, evidence could be let in, which proposition will certainly offend the well accepted norm in this behalf, I find that

the defendant has not placed any evidence at all that the disposition of the suit site under Ex.B-1 was intended to reiterate, declare and confirm any

pre-existing right of Soundarathlhammal against property, such as her right to maintenance.

Nainar Sundaram, J., (as he then was) has stood by his view in spile of his attention being drawn to a judgment of this Court in Sri Mahaliamman

Temple and Vigneswaran Koil and Another Vs. Vijayammal, , for in his view, the law on the subject has been staled clearly and in detail in the

judgment of the Supreme Court in V. Tulasamma v. V. Sesha Reddi (1978)1 S.C.J. 299 : (1978)1 A.W.R. (S.C.) 6 : AIR 1977 S.C. 1944, but

on the facts of that case, that in a compromise arrived at between the Parties, allotting the properties in question to a woman for her maintenance

and giving her limited interest in such properties, the Supreme Court held that such allotment in lieu of her maintenance was in recognition of her

right to maintenance, which was a pre-existing right, and, therefore, the case of the woman would be taken out of the ambit of Section 14(,2) and

would fall squarely within Section 14(1) read with the explanation thereto,

No material has been exposed in the case by the defendant to demonstrate that the suit property was given to Soundaraththammal in reiteration,

confirmation or in declaration of any pre-existing right of her against property. Neither the recitals in Ex.B-1 nor the pleadings put forth by the

defendant, nor the evidence placed by him supports such a theory.

Sundaram Pillai''s will is not in question. He executed the will on the date the Hindu Women''s Right to Property Act came into force. Sundaram

Pillai died on 18.7.1942; On that day, u/s 3 of the Hindu Women''s Right to Property Act, his widow Soundaraththammal, in the event of intestate

succession, became entitled to limited interesi, known as the Hindu Women''s estate, and inheritance, equal to the share of her son, if there was

one living at the time of her husband''s death. It is, however, agreed that there was no son to inherit and/or there was no other person to share the

A schedule properties in the will in the event of intestate succession to Sundaram Pillai with his widow Soundaraththammal. When the Hindu

Succession Act, 1956, came into force, Soundaraththammal was alive and was in possession of the A schedule properties in the will. Section 14 of

the Act reads as follows:

(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

device, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or

after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such

property held by her as 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 or under an award where the terms of the gift, will or other instrument or the decree, order of award prescribe a

restricted estate in such property.

It is not in dispute before us, and it is not possible to so dispute, that the plaintiff has got no right to the property except as reversioner and

vested remainder in the event of intestate succession or under the will Ex.B-1, if the property is given to Soundaraththammal by Sundaram Pillai

under the will.

In S.S. Munna Lal Vs. S.S. Rajkumar and Others, , the Supreme Court has said,

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 device, or at a partition, or in lieu of maintenance or arrears of maintenance or by

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

or in any other manner whatsoever. 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. AIR 1936 20 (Privy Council) 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 Hindu Succession Act.

Proceeding further, the Supreme Court has, in this judgment, said:

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

confers upon Hindu females a full right 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 of her right to maintenance. She was not entitled to claim partition. But the Legislature by enacting the Hindu

Women''s Right to Property 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 severality 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 Council in Pratapmull''s case... Section 4 of the Act given an overriding effect to the provision of the Act. It enacts : ""save as otherwise

expressly provided in this act,

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of the law in force immediately before the commencement of this

Act shall cease to have effect with respect to any matter for which provision is made in this Act.

(b)...

Manifestly, the Legislature intended to supersede the rules of Hindu law on all matters in respect of which there was an express provision made in

the Act. Normally a right declared in an estate by a preliminary decree would be regarded as property, and there is nothing in the context in which

Section 14 occurs or in the phraseology used by the Legislature to warrant the view that such a right declared in relation to the estate of a joint

family in favour of a Hindu widow is not property within the meaning of Section 14. In the light of the scheme of the Act and its avowed purpose it

would be difficult without doing violence to the language used in the enactment to assume that a right declared in property in favour of a person

under a decree for partition is not a right to property. If under a preliminary decree the right in favour of a Hindu male be regarded as property the

right declared in favour of a Hindu female must also be regarded as property.

The above cited judgment of the Supreme Court thus has clarified how a wider meaning should be given to the expression ""property"" and with

respect to a joint family property any declaration by a court as to the right in favour of a Hindu female be regarded as a right and how a departure

from the Sastric or textual Hindu Law has been made by the provisions made in Section 14(1) of the Act. It is, however, pointed out by the

Supreme Court again in its judgment in Krishna Beharilal Vs. Gulabchand and Others, , that it shall always be on the basis of a true construction of

the document about which a dispute has arisen that it should be decided whether it is conferment of a new right or recognition of any existing right.

In this judgment, the Supreme Court has said:

The ordinary rule of construction of a document is to give effect to the normal and natural meaning of the words employed in the document. The

compromise deed specifically says that the properties given to Pattobai were to be enjoyed by her as ""Malik Mustakil""....The circumstances under

which the compromise was entered into as well as the language used in the deed do not in any manner go to indicate that the estate given to

Pattobai was anything other than an absolute estate.

...

It was a compromise entered into with the presumptive reversioners. Further, at no stage the plaintiff had pleaded that the compromise entered into

in 1951 was an illegal compromise. The plaintiffs took no such plea in the plaint. There was no issue relating to the validity of the compromise.

Hence the High Court was not justified in going into the validity of the compromise. Further even if the compromise was an invalid one, the parties

to the compromise are estopped from challenging the impugned alienation.

Prior to the enactment of Section 14 of the Act, the textual Hindu Law as well as the Hindu Women''s Right to Property Act, 1937, extracted

above, restricted the nature of the interest of a Hindu female in property acquired by her, and even as regards the nature of this restricted interest,

there was great diversity of doctrine on the subject. In V. Tulasamma v. V. Sesha Reddi (1978)1 S.C.J. 29 : (1978)1 A.W.R.6 : AIR 1977 S.C.

1944, the Supreme Court has said about the effect of Section 14 as regards the nature of the restricted interest of Hindu female, in view of the

diversity of doctrine on the subject as follows:

...The Legislature by enacting Sub-section (1) of Section 14, in tended as pointed out by this Court in S.S. Munna Lal Vs. S.S. Rajkumar and

Others, , 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"". This Court pointed out that the Hindu Succession Act 1956 is a codifying enactment, and has made far-reaching

changes in the structure of the Hindu Law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance and sweeps

away the traditional limitations of her powers of disposition which were regarded under the Hindu Law as inherent in her estate"". Sub-section (1)

of Section 14, is wide in its scope and ambit and uses language of great amplitude. It says that any property possessed by a female Hindu, whether

acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. The words ""any

property"" are, even without any amplification, large enough to cover any and every kind of property, but in order to expand the reach and ambit of

the section and make it all comprehensive, the Legislature has enacted an explanation which says that property would include ""both movable and

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

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

prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement"" of

the Act. Whatever be the kind of property, movable or immovable and whichever be the mode of acquisition, it would be covered by Sub-section

(1) of Section 14, the object of the Legislature being to wipe out the disabilities from which a Hindu female suffered in regard to ownership of

property under the old Sastric Law, to abridge the stringent provisions against proprietary rights which were often regarded as evidence of her

perpetual tutelage and to recognize her status as an independent and absolute owner of property. This Court has also in a series of decisions given

a most expansive interpretation to the language of Sub-section (1) of Section 14 with a view to advancing the social purpose, of the legislation and

as part of that process, construed the words ''possessed of also in a broad sense and in their widest connotation. It was pointed out by this Court

in Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva and Others, . that the words ''possessed of mean ""the state of owning or

having in one''s hand or power"". It need not be actual or physical possession or personal occupation of the property by the Hindu female, but may

be possession in law. It may be actual or constructive or in any form recognised by law. Elaborating the concept, this Court pointed out in Mangal

Singh v. Rattne AIR 1967 S.C. 1786, that the section covers all cases of property owned by a female Hindu although she may not be in actual,

physical or constructive possession of the property, provided of course, that she has not parted with her rights and is capable of obtaining

possession of the property. It will, therefore, be soon that Sub-section (1) of Section 14 is large in its amplitude and covers every kind of

acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of

commencement of the Act or the subsequently acquired and possessed, she would become the full owner of the property.

xxx xxx xxx

Now, Sub-section (2) of Section 14 provides that 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 terms of the gift, will or other

instrument or the decree, order or award prescribe a restricted estate in such property. This provision is more in the nature of a proviso or

exception to Sub-section (1) and it was regarded as such by this Court in Seth Badri Prasad Vs. Srimati Kanso Devi, It excepts certain kinds of

acquisition, of property by a Hindu female from the operation of Sub-section (1) and being in the nature of an exception to a provision which is

calculated to achieve a social purpose by bringing about change in the social and economic position of woman in Hindu Society, it must be

construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in Sub-section (1). It cannot be

interpreted in a manner which would rob Sub-section (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by

Sub-section (1). The language of Sub-section (2) is apparently wide to include acquisition of property by a Hindu female under an instrument or a

decree or order or award where the instrument, decree, order or award prescribes a restricted estate for her in the property and this would

apparently cover a case where property is given to a Hindu female at a partition or in lieu of maintenance and the instrument, decree, order or

award giving such property prescribes limited interest for her in the property. But that would virtually emasculate sub-sec(1), for in that event, a

large number of cases where property is given to a Hindu female at a partition or in lieu of maintenance under an instrument, order or award and

would be excluded from the operation of the beneficent provision enacted in Sub-section (1), since in most of such cases, where property is

allotted to the Hindu female prior to the enactment of the Act, there would be a provision in consonance with the old Sastric law then prevailing,

prescribing limited interest in the property and where property is given to the Hindu female subsequent to the enactment of the Act, it would be the

easiest thing for the dominant male to provide that the Hindu female shall have only a restricted interest in the property and thus make a mockery of

Sub-section (1). The Explanation to Sub-section (1) which includes within the scope of that sub-section property acquired by a female Hindu at a

partition or in lieu of maintenance would not contain a provision prescribing restricted estate in the property. The social purpose of the law would

be frustrated and the reformist zeal underlying the statutory provision would be chilled. That surely could never have been the intention of the

Legislature in enacting Sub-section (2). It is an elementary rule of construction that no provision of a statute should be constructed in isolation but it

should be construed with reference to the context and in the light of other provisions of the statute so as, as far as possible to make a consistent

enactment of the whole statute. Sub-section (2) must, therefore, be read in the context of Sub-section (1) so as to leave as large a scope for

operation as possible to Sub-section (1) and so read, it must be confined to cases where property is acquired by a female Hindu for the first time

as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which, prescribe a restricted estate in

the property. This constructional approach finds support in the decision in Badri Prasad''s case AIR 1970 S.C. 963 : 1970 M.L.J. 509 : (1970)2

S.C.J. 299 : 1970 Cri. L.J. 88, where this Court observed that Sub-section (2) ""can come into operation only if acquisition in any of the methods

enacted therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of the property.

Proceeding further, the Supreme Court has dealt with the Legislative intent, and stated conclusively,

This circumstance would also seem to indicate that the legislative intendment was that Sub-section (2) should be applicable only to cases where

acquisition of property is made by a Hindu female for the first time without any pre-existing right-a kind of acquisition akin to one under gift or will.

Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and

such an acquisition would not be within the scope and ambit of Sub-section (2) even if the instrument, decree, order or award allotting the property

prescribes a restricted estate in the property.

A Bench of this Court, to which one of us was a member, in O.S. A. Nos. 29 and 30 of 1982 Doraibabu v K. Masilamani, judgment, dated

29.4.1991, dealt with a case which had arisen on the following facts : One Thirumalai Chetti died on 28.9.1944, leaving behind Mylai Ammal alias

Alamelu Ammal, his widow. At the time of his death, he constituted a joint family with his two brothers Govindarajulu Chetty and Jagannatha

Chetty, and possessed joint family properties. Mylai Animal became entitled to her husband''s share in the joint family properties along with her

grandson Doraibabu under the Hindu Women''s Right to Property Act, 1937, to the extent of one-sixth share in the joint family properties. Suits

were filed for partition, and a preliminary decree was passed on 13.3.1946 awarding one-sixth share to Mylai Ammal. In the final decree dated

18.3.1947, Mylai Ammal was allotted 9 items of properties with limited estate for her one-sixth share in addition to cash of Rs. 10,374-6-0. In the

said suit, one Gopalakrishna Chetty was awarded a right of maintenance as the illegitimate son, even though he had claimed a share in the

properties. Gopalakrishna Chetty subsequently instituted another suit against Mylai Ammal and others claiming that he was entitled to a separate

interest in the properties belonging to the share of his father Thirumalai Chetty. A preliminary decree was passed on 4.4.1955 granting a share to

Gopalakrishna Chetty and modifying the share allotted to Mylai Ammal to 5/12 share with limited interest in the suit properties and also that after

the death of Mylai Ammal, her share would devolve on Gopalakrishna Chetty and the first defendant in C.S. No. 313 of 1976, that is to say, the

grandson in the ratio of 1/4 : 3/4 respectively. The grandson and another preferred appeals against the preliminary decree in the suit by Gopala

krishna Chetty. During the pendency of the appeal, a compromise was arrived at on 24.6.1960, under which Mylai Ammal was allotted 7 houses,

that is to say, the suit properties and a cash of Rs. 9820. The compromise provided that the first defendant in the suit and Gopalakrishna Chetty

should take the suit properties allotted to Mylai Ammal in the ratio of 3 : 1 after her death. A final decree was accordingly passed on 28.6.1960.

Mylai Ammal, however, executed a settlement deed on 12.6.1967 in favour of another person. He filed C.S. No. 313 of 1976 saying that Mylai

Ammal had absolute interest and that she had executed the settlement deed as the full owner of the properties. The question that arose for

consideration in the suit, and ultimately in the appeals, O.S.A. Nos. 29 of 1982 and 30 of 1992, was whether the compromise decree granting a

life interest was one falling under Sub-section (2) of Section 14 of the Act or was one that was arrived at only for recognition of the preexisting

rights with respect to which the suits were contested between the parties, although the compromise decree was passed after the Hindu Succession

Act came into force. The Bench referred to the judgment in V. Tulasamma v. V. Sesha Reddi (1978)1 S.C.J. 29 : (1978)1 A.W.R. 6 : AIR 1977

S.C. 1944, and other authorities on the subject and held as follows:

We have already noticed that it was only in acknowledgement of the pre-existing right of Mylai Ammal in the preliminary decree and the final

decree in C.S. No. 608 of 1949, she was given a share in the properties and that thereafter it was said that after her demise, her grandson and the

illegitimate son of her husband would divide the properties in the manner indicated therein. This division as : indicated in the final decree is said to

be a result of a compromise. We have also noticed that it is not possible to say that Mylai Ammal had evidently given up her absolute interest that

had accrued to her u/s 14(1) of the Hindu Succession Act. The right that Mylai Ammal exercised during her life time with respect to the properties

belonging to her was not one acquired by her for the first time under the civil court''s decree. It would be in consonance with the observation of the

Supreme Court to hold that mention of any division of her properties after her demise between her grandson and the illegitimate son of her husband

was not binding upon her because if held otherwise, it would virtually be a concession to dominant males to succeed providing to a Hindu female

only a restricted interest in the properties, one of the instances referred to in V. Tulasamma v. V. Sesha Reddi (1978)1 S.C.J. 299 : (1978)1

A.W.R.6 : AIR 1977 S.C. 1944.

On the heels of the judgment of this Court, and obviously without reference to the Judgment in O.S.A. Nos. 29 and 30 of 1982 has cornea

judgment by the Supreme Court in Thota Sesharathamma and Another Vs. Thota Manikyamma (Dead) by Lrs. and Others, . The facts in the case

before the Supreme Court are almost similar to the facts in the instant case. One Thota Madhav Rao, the plaintiff, filed a suit against Thota

Manikayamma on the allegation that his father Yellamanda and the husband of Thota Manikyamma were brothers. As Manikayamma and her

husband had no issue, they brought up Thota Madhav Rao as their foster son from the age of 8 years, and thereafter he continued to live with them

and was brought up treating him as their own son. Manikyamma''s husband died on January, 14,1932. Before his death, he executed a will

bequeathing the suit properties in favour of his wife Manikyamma for her life with a vested remainder in favour of Thota Madhav Rao.

Manikyamma, however, executed a registered will on October 26,1969, bequeathing the suit properties in favour of one Ramisetti Koteswara

Rao. Thota Madhav Rao claimed absolute right in the suit properties after the lifetime of Manikyamma. The question involved in the suit was

whether the life interest in the property acquired by Thota Manikyamma under the will executed by her husband and continued to be in her

possession became her absolute property u/s 14(1) of the Act. There were other cases having similar facts which were brought before the

Supreme Court by Special Leave. The Supreme Court has referred to the judgment in the case of Assistant Collector of Customs and Another Vs.

L.R. Malwani and Another, , Mst. Karmi Vs. Amru and Others, , and V. Tulasamma v. V. Sesha Reddi (1978)1 S.C.J. 299 : (1978)1 A.W.R. 6

: AIR 1977 S.C. 1944, supra, and then stated the law as follows:

A mention of all the above cases shows that this Court in a long series of case has taken a consistent view 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. If the case falls under the provisions of Section 14(1)

of the Act then the female Hindu shall be held to be full owner of the property and Sub-section (2) of Section 14 will only apply where the

property is acquired without there being any pre-existing right of the female Hindu in such property. Thus we affirm and reiterate that Sub-section

(2) of Section 14 will be construed more in the nature of a proviso or an exception to Sub-section (1) of Section 14 of the Act. This view lends

support to the subject of the section which was to remove the disability on women imposed by law and to achieve a social purpose by bringing

about change in the social and economic position of women in Hindu society.

K.Ramaswamy, J. supplementing the above view, reiterated and indicated how in V. Tulasamma''s case (1978) 1 S.C.J. 299 : (1978)1 A W.R.

(S.C.) 6 : AIR 1977 S.C. 1944, the Supreme Court has recognised the social purpose and stated as follows:

Sub-Section (1) of Section 14 cannot be interpreted in a manner which would deprive the Hindu women of the protection sought to be given to

her by sub-sec(1). The social purpose of the law would be frustrated and reformist zeal underlying the statutory provisions would be chilled. It was

not the intention of the legislature in enacting Sub-section (2) which must be construed as an exception or a proviso to Sub-section (1). No

provision should be construed in isolation and should be read in the context so as to take a consistent enactment of the whole statute. Sub-section

(2) must be read in the context of Sub-section (1) of Section 14 and if so read Sub-section (2) must be confined to cases where the Hindu female

acquires the property for the first time as a grant without any pre-existing right to the property under a will or by way of gift or in any other

instruments or a decree or order of the civil court or an award, the terms of which prescribe a restricted estate in the property. Sub-section (2)

must be read as an exception or proviso to Sub-section (1) so as to leave as large a scope for operation as possible to Sub-section (1) of Section

It was, therefore, held that the property given to Tulasamma in a compromise decree in lieu of her maintenance with restricted estate known as

window''s estate in Hindu law was enlarged and she became an absolute owner under the Act. She had the right to alienate the property in favour

of others.

In this judgment, K. Ramaswamy, J., has referred to other judgments of the Supreme Court on the subject, and finally said:

Thus I hold that the Act revolutionised the status of a Hindu female; used Section 14(1) as a tool to undo past injustice to elevate her to equal

status with dignity of person on par with man; extinguished pre-existing limitation of women''s estate, or widow''s estate known to Shastric Law

and removed all the fetters to blossom the same into full ownership. The discrimination suffered by Hindu female under Sastric law was

exterminated by legislative fiat. The social change thus envisaged must be endeavoured to be given full vigour, thrust and efficacy. Section 14(1)

enlarges the restricted estate into full ownership when the Hindu female has pre-existing right to maintenance etc. Sub-section (2) operates when

the grant was made for the first time under the document with no pre-existing right. Sub-section (2), therefore, must be read as an exception or a

proviso to Sub-section (1). Both the sub-sections read with the explanation to be pragmatically considered as a constituent integral scheme. The .

court would sit in the armchair of the testator or its maker and summon to its aid the attending circumstances to execute the instrument; the

relationship of the parties and to see whether the Hindu female acquired the property with vestige of pre-existing right and the will, gift deed, order,

decree or an award of the civil court or in any of the forms known to law was executed in recognition thereof or entitled under the existing law. If

the finding is positive her limited estate, though created with restrictive covenants in instrument or an omission to expressly so mention in full

particulars thereof in the instrument in that regard are of little consequence. Her limited estate gets blossomed into full ownership u/s 14(1) with a

right to bequeath, gift over, alienate or to deal in any manner recognised by law. If on the other hand the Hindu female acquires for the first time the

title therein as a grant with restrictive estate under the instrument with on pre-existing title or right, Sub-section (2) of Section 14 gets attracted and

the restrictive covenants contained in the instrument would bind her. She remains to be a limited owner in terms thereof. The subsequent alienee or

transverse acquires no higher right thereunder than the legatee etc. The reversioner to the last male holder is not bound by such transfer and is

entitled to succeed to the estate, on her demise, in terms of the instrument. It is too late in the day to take retrograde step to reopen Tulasamma

ratio.

Coming to the facts of the case in the suit instituted by Thota Madhav Rao, the Supreme Court has said:

The courts are not giving retrospective operation to Section 14(1) or to the instrument. The courts only would be applying the law to the facts

found as on the date when the question arose to find whether legatee has preexisting vestige of title under law; and the nature of possession of the

property held by her and whether the legatee would get the benefit of Section 149(1) of the Act. There need be no express recital even in the will

of the enjoyment of the property deviced under the will in lieu of maintenance as a limited owner for her life. Even if so mentioned, it would be a

reflection or restatement of the law existing as in 1932 when the will was executed. The respondent, admittedly, being a widow of the testator who,

under Shastric Law, was obliged to provide maintenance to his wife, and it being personal obligation, the property bequeathed was in lieu of

maintenance for her life. She was in enjoyment of the property and the beneficial interest therein stood vested in her. As per existing law as in 1932

the widow as a legatee was entitled to widow''s estate and she remained in possession on the date the Act came into force and was in enjoyment

of the income derived therefrom for her life. No one had a right to interdict it. The restrictive covenant, therefore, does not stand an impediment to

Section 14(1) to have full play to extinguish the same and enlarge the limited estate of widow into an absolute ownership. The restrictions contained

in the will, though falls both under Sub-section (2) as well as Sub-section (1), of Section 14 the right to maintenance being a pre-existing right over

property ""res ad rem"" Section 14(1) would apply. The testamentary succession with restrictive conditions in the will was obliterated. She became

an absolute owner on or after June 17,1956. Accordingly, I have no hesitation to hold that, though the will created a restrictive covenant, Section

14(2) does not apply. Section 14(1) enlarged the widow''s limited estate held by Manikyamma into an absolute ownership as full owner with a

right to disposition by testamentary instrument or otherwise.

Coming to the facts of the instant case, we cannot fail to notice that the right to maintenance which Soundarathammal before the Hindu

Women''s Right to Property Act came into force, had matured into a statutory right giving to her a limited interest for life, and the recitals

abovequoted thus recognised only a pre-existing right in her and extended the benefits, after her death to the reversioners who had vested

remainders to inherit, the consequence of which the law then existing had pre-determined. Such recognition of the preexisting vestige of title under

law and the nature of possession of the property she had, must be allowed to be enlarged u/s 14(1) of the Act as it was not a grant coming to her

under the testament without there being any pre-existing right in her to succeed to the estate of her husband on his demise, having a life interest.

We fail thus to understand how on the facts as above, the court can say that a specific pleading would be needed that the will under which

Soundarathammal entered upon the property had been executed in recognition of a pre-existing right against the property and/or that unless such a

recital is found in the will, it will not be permissible for the widow or any person claiming through her to say that the will only recognised a pre-

existing right. We are of the opinion that the learned single Judge has committed an error of law and that he has not applied the law engrafted in

Sections l4(1) and 14(2) of the Act properly on the Acts of the case.

10.To be fair, however, to learned Counsel for the respondents, we must also refer to a judgment of the Supreme Court in S. Rajagopal Chettiar

Vs. Hamasaveni Ammal and others, , which ended with an extract from the Judgment of the High Court and the recitals in the will. The recitals, it

seems were not similar to the one in the case of Thota Sesharathamma and Another Vs. Thota Manikyamma (Dead) by Lrs. and Others, , and the

recitals in the will of Sundaram Pillai under consideration by us. The Supreme Court has said:

The question which arises on the basis of the contents of the above will is whether Rajalakshmi Ammal had acquired a life estate under the will or

an absolute estate. The High Court took the view that it was one of the cardinal principles of construction of wills that so far as legally possible

effect should be given to every disposition contained in the will unless the law prevents such effect being given to it. The High Court held that the

fact that the testator directed that after Rajalakshmi Ammal it shall go to her male children clearly showed an intention that Rajalakshmi Animal''s

interest in the properties should not be absolute.

One can see the obvious distinctions in the rights in the estate of Rajalakshmi Ammal and the estate in the hands of Manikyamma in the case of

Thota Sesharathamma and Another Vs. Thota Manikyamma (Dead) by Lrs. and Others, . Whereas limited estate in the hands of Manikyamma on

her demise was determined to go to the vested reminder, in the case of Rajalakshmi to go to her male child only a departure from the pre-existing

law. On these facts, the Supreme Court has said in the case of S. Rajagopal Chettiar Vs. Hamasaveni Ammal and others,

After going through the contents of the will we agree with the view taken by the High Court. We do not agree with the contention of the learned

Counsel for the appellant raised before us that Padmanabha Chettiar, the testator of the will wanted to give absolute right in the property to his wife

Dhanalakshmi Ammal and thereafter absolute right in favour of his daughter Rajalakshmi Ammal. The above intention is negatived by a clear

mention in the will that after Rajalakshmi Ammal the property shall ultimately go to her male children. In case the intent of the testator was to give

the properties absolute in favour of Rajalakshmi and not merely life interest then there was no question of mentioning that after her it should go to

her male children.

An attempt, however, was made in the case of S. Rajagopal Chettiar Vs. Hamasaveni Ammal and others, , before the Supreme Court to

consider whether the life interest of Rajalakshmi Ammal under the will became absolute u/s 14(1) of the Act. The Supreme Court, however,

declined to enter into that contention saying:

This contention was neither raised in any of the Courts below nor before the High Court nor in the petitioner for special leave and we cannot

permit this ground to be raised for the first time before us during the course of arguments.

The principles of law stated in S. Rajagopal Chettiar Vs. Hamasaveni Ammal and others, , are not different from the principles of law stated in

the case of Thota Sesharathamma and Another Vs. Thota Manikyamma (Dead) by Lrs. and Others, . We are satisfied that the judgment under

Appeal has not been delivered in accordance with law. It is accordingly set aside. The Judgment and Decree of the trial Court are confirmed. The

appeal is allowed. On the facts of the case, however, we are making no order as to costs.