Hussain Uduman vs Venkatachala Mudaliar and Others

S. Maharajan, J.—This Letters Patent Appeal which is directed against the second appellate judgment of V. Rarnaswami, J., arises under

the following circumstances:

Survey No. 60/1, which is the subject-matter of this appeal, and certain other properties originally belonged to two brothers, Viswanatha Chettiar

and Palaniandi Chettiar. Viswanatha Chettiar died on 18th February, 1918. Sometime before his death, he executed a partition deed and a will,

whereby he bequeathed the suit property and other properties to his wife, Gomathi Ammal. After his death, disputes arose between Gomathi

Ammal and Palaniandi Chettiar. Thereupon, Gomathi Ammal instituted two suits in the District Munsif''s Court, Tirunelveli .for enforcement of the

partition deed and the will and for direction to register the same. On 6th November, 1920 under Exhibit A-1 both the suits were compromised by

the parties, and a decree was granted in terms thereof. Under the terms of the decree, Gomathi Ammal was to enjoy the suit property and certain

other properties for life and after her death, these properties were to go to Palaniandi Chettiar and his heirs. One Velayutham Pillai and Ramiah

Pillai obtained a decree against Palaniandi Chettiar in S.C. No. 564 of 1934 and in execution thereof brought to sale the vested remainder that

Palaniandi Chettiar had in the suit property, purchased the same and obtained symbolic delivery of possession. The plaintiff purchased this right

from the Court-auction purchaser on 29th November, 1954. Gomathi Ammal herself died on 8th August, 1964 According to the plaintiff, on her

death, he, as the holder of the vested remainder, became entitled to the suit property. The plaintiff''s case was that by some arrangement with

Gomathi Ammal, the father of defendants 1 to 12 got possession of item 1 (Survey No. 60/1) and was in enjoyment of the same till his death, and

after his death, his heirs (defendants 1 to 12) have been in possession of item 1. Defendants 1 to 12, when called upon by the plaintiffs to surrender

possession, refused to do so. Consequently, the plaintiff filed the suit for recovery of possession.

Defendants 1 to 12, who were the children of Mohammad Hanifa Tharaganar, contended that as per the compromise decree, Gomathi Ammal

was given Survey No. 30/3 and S. No. 70/6, that she was in enjoyment of those items, but by mistake the survey number of item 1 was wrongly

mentioned in the compromise decree as Survey No. 60/1 instead of as Survey No. 30/3 and this mistake was reiterated in the subsequent

documents. Likewise, what was sold in execution of the decree against Palaniandi Chettiar was also wrongly described as Survey No. 60/1 and

therefore, the plaintiff had no right in respect of item 1 of the plaint schedule. These defendants also pleaded that they had been in possession of

Survey No. 60/1 and, that in any case they have prescribed title to the property by adverse possession.

The trial Court held that the survey number had been wrongly given in the compromise decree as Survey No. 60/1 instead of as Survey No.

30/3, that Palaniandi Chettiar sold Survey No. 60/1 to the predecessor-in-interest of the defendants and that, therfore, the plaintiff was disentitled

to recover possession of item 1. Consequently it dismissed the suit of the plaintiff in respect of item 1.

On appeal by the plaintiff, the Subordinate Judge, Tirunelveli, held that there was no mistake in the description of the survey number in the

compromise decree or in the subsequent documents, and on this view, decreed the suit as prayed for in respect of item 1 as well.

Against this judgment, the third defendant preferred second Appeal No. 215 of 1968. The learned Judge confirmed the finding of the first

appellate Court that there was no mistake in respect of item 1 in the compromise decree and the subsequent documents. This is a finding of fact,

which is binding upon us. The learned Judge also held upon a construction of the compromise decree that Gomathi Ammal was given the interest in

item 1 only in lieu of maintenance, and that this interest did not get enlarged u/s 14 (1) of the Hindu Succession Act. Consequently, the learned

Second Appellate Judge dismissed the appeal with costs, and granted leave.

The main question that arises for consideration is whether the interest, which Gomathi Ammal got under Exhibit A-1, the razinama decree dated

6th November, 1920 became enlarged into an absolute estate under Sub-section (1) of Section 14 of the Hindu Succession Act, 1956. The

learned Judge held that at the time of the compromise, Gomathi Ammal had only a right to maintenance, and not any pre-existing right to the suit

property, that in lieu of maintenance, she was allotted the disputed property for the duration of her lifetime, that consequently Section 14 (2) of the

Hindu Succession Act applied, and that there could be no enlargement of her interest into an absolute state u/s 14 (1) of the Hindu Succession Act.

Section 14 of the Hindu Succession 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

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, 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 or award prescribe a

restricted estate in such property.

A perusal of the section makes it clear that Section 14 (1) governs all kinds of estate ""acquired "" by a female Hindu before or after the

commencement of the Act, whether by way of inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance, or by gift

from any person or by her own skill or exertion or by purchase or by prescription or in any other manner whatsoever, or by way of stridhana

immediately before the commencement of his Act. On the other hand, Sub-section (2) of Section 14, which is in the nature of an exception to Sub-

section (1) provides that nothing contained in Sub-section (1) shall apply to any property acquired by a female Hindu 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 or order or award ""prescribe"" a restricted estate in such property. In other words, the intention of the Legislature was to remove the

disability imposed on women by Hindu law on the ground of sex, but not to interfere with the sanctity of contracts and grants, whereby only a

restrictive estate had been deliberately conferred upon them. Sub-section (i) removes the restriction imposed by Hindu Law, on the ground of sex,

upon the estate held by a woman and enlarges it into an absolute estate. On the other hand, Sub-section (2) leaves intact the restriction on the

estate of a woman, not imposed by law on account of her sex, but prescribed by the terms of a contract or grant. Some difficulty may arise in the

application of Sub-section (2) of Section 14 to the facts of a given case. The document, instrument, decree or award may, in certain cases, of its

own force, create a restricted estate in property and may in certain other cases only re-state the restricted estate which the female Hindu

possessed even prior to the date of the instrument, decree or award. Before applying Sub-section (2), the proper question to ask is, does the

instrument or decree "" prescribe"" a restricted estate in the property, or does it merely acknowledge and recognise (and not prescribe) a pre-

existing estate upon which the Hindu law had imposed a restriction, because the holder of the estate was a woman? If before the date of the deed

or the decree, she had no interest in the property and her only source of title is the deed or the decree, which confers upon her a restricted estate,

Sub-section (a) of Section 14 of the Act will apply, and such a restricted estate will not be enlarged into an absolute estate under Sub-section (1)

of Section 14. If, on the other hand, the source of her title is independent of the instrument or decree and she held a restricted estate even prior to

the date of the instrument or the decree, and all that the instrument or decree does is merely to recognise the preexisting restricted estate of the

female Hindu then Sub-section (1) of Section 14 would certainly operate upon the restricted estate and expand it into an absolute one. The

Supreme Court in Seth Badri Prasad Vs. Srimati Kanso Devi, has observed as follows:

Sub-section (2) of Section 14 is more in the nature of a proviso or an exception to Sub-section (1). It can come 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 who is in possession of

the property.

We shall next examine, whether on the date of Exhibit A-1 Gomathi Ammal had a pre-existing title to the suit property. If she had, then the

compromise decree merely recognised the estate which she had already acquired and did not create for the first time a restricted estate in the

property. In order to understand what she actually got under the compromise, it is necessary to set forth a few facts: Gomathi Ammal was the wife

of Viswanatha Chettiar, who died on 18th February, 1918 leaving him surviving his widow Gomathi Ammal and his younger brother, Palaniandi

Chettiar. A few days prior to his death that is to say on 13th February, 1918 Viswanatha Chettiar executed a partition deed, whereby he

purported to become divided from Palaniandi Chettiar. On the same day, he executed a will whereby he bequeathed Survey No. 60 (1), the

property now in dispute and some other items in favour of Gomathi Ammal. Gomathi Ammal proceeded to enforce her rights under the partition

and under the testament of her husband by instituting two suits, O.S. N0.264 of 1920 and 286 of 1920 on the file of the District Munsif''s Court,

Tirunelveli, against Palaniandi Chettiar. Palaniandi Chettiar contested both these suits. But ultimately on 6th November, 1920 Gomathi Ammal and

Palaniandi Chettiar entered into a compromise which was recorded by the Court and embodied in a decree as per Exhibit A-1. The terms of the

razinama decree showed that out of the several items of properties dealt with by Viswanatha Chettiar under the partition deed and the will the first

schedule property (which comprises of S. No. 60 /1 and S. No. 70/6) and the second schedule property (comprising of a house in

Kokkarakulam) were allotted to Gomathi Ammal for her maintenance to be enjoyed by her for life. It was further provided that after the life time of

Gomathi Ammal, Palaniandi and his heirs should become absolutely entitled to the said properties. It was also provided that Gomathi Ammal,

should not alienate the said items during her lifetime. With reference to the other properties mentioned in the partition deed and will of Viswanatha

Chettiar, the compromise recites that the plaintiff relinquished the interest that she had been claiming thereunder and that Palaniandi Chettiar should

enjoy the same absolutely. One important clause in the compromise deed is as follows:

As the matter has been settled in accordance with the terms mentioned above it has been decided not to register the partition deed and the will

propounded by Gomathi Ammal.

It may be noted that in the suits filed by Gomathi Ammal, one of the prayers was that these deeds should be directed to be registered. In view of

the compromise., however, it was decided that this relief need not be granted. It is significant that neither the partition deed nor the will was

characterised in the partition deed as spurious or concocted. In paragraph 4 of the plaint in this suit the following admissions have been made by

the plaintiff:

A few days before his death, the said P.K. Viswanathan Chettiar had executed a partition deed effecting division between himself and his younger

brother and also a will in respect of his properties. But he died even before the documents could be registered. After his death, disputes arose

between his widow Gomathi Ammal and his brother Palaniandi Chettiar in regard to the registration of the said two documents. The registering

authorities having refused to register the documents Gomathi Ammal filed two suits O.S. No. 264 of 1920 and O.S. No. 286 of 1920,

respectively both on the file of the Additional District Munsif''s Court, Tirunelveli, for a declaration that the will and the partition deed respectively

were duly executed by her husband and for ordering registration of the documents.

It is therefore, clear on the plaintiff''s own showing that before the compromise was entered into Gomathi Ammal claimed rights to the suit

property and other properties of her husband and traced her title to the partition deed and the will of her husband. It is not as if she merely claimed

a right to maintenance and a right to property was conferred upon her for the first time under the compromise deed in lieu of maintenance. The

deed of compromise recognised or acknowledged the pre-existing right of Gomathi Ammal, which she had already acquired under the testament

and the partition deed, the execution of which has been admitted by the plaintiff in the plaint itself. It appears that these admissions were not

brought to the notice of the learned Second Appellate Judge. In the light of these admissions, we have no option but to disagree with the learned

Second Appellate Judge and hold that Exhibit A-1 is not a document, which by its own force and independently of any pre-existing right of

Gomathi Ammal, created or prescribed any restricted estate in her favour. What she possessed before the date of the compromise was not a mere

right to maintenance, but an interest in the suit property and certain other properties. Under the compromise, the pre-existing right to property was

recognised. It would then follow that the compromise decree would fall u/s 14 (1) of the Act. But, before giving Gomathi Ammal, the benefit of

Section 14 (1) of the Act, we must be satisfied that she possessed the suit property as a limited owner on 17th June, 1956 the date on which the

Hindu Succession Act came into force. The expression ""possessed"" in the initial part of Section 14 (1) appears to have been deliberately used by

the Legislature. The object of the Act was to confer a benefit on Hindu females by enlarging their limited estate in property into an absolute estate

with retrospective effect, provided they were in possession of the property when the Act came into force, and, therefore, in a position to take

advantage of this beneficial provision, in Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva and Others, , the Supreme Court

approved the view taken by the Calcutta High Court in Gostha Behari v. Haridas AIR 1967 Gal. 671 and held that the opening words of Section

14, i.e., "" 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. The Act was not intended to benefit persons who on the relevant

date had already purchased property from a female limited owner. There is abundant authority for the proposition that the operation of the Act is

confined to property in the possession of the female when the Act came into force. In the language of the Supreme Court in Seth Badri Prasad Vs.

Srimati Kanso Devi, .

The critical words in Sub-section (1) are ''possessed'' and ''acquired''. The word ''possession'' has been used in its widest connotation and it may

either be actual or constructive or in any form recognised by law.

It is therefore, necessary for the appellant to make out that Gomathi Ammal was on the date of the Act in physical or constructive possession

of Survey No. 60/1. The appellant, who was the third defendant in the trial Court, adopted the written statement of the first defendant, in which it

was alleged that Gomathi Ammal was not given Survey No. 60/1 under the compromise decree set out in the plaint, that what was really given to

her was Survey No. 3o/3 and another property, that Gomathi Ammal was in enjoyment of Survey No. 30/3 and the other property right from the

date of the said compromise, and that she never had possession of Survey No. 60/1, which is item 1 of plaint schedule. It is also found from the

evidence of P.W. 2 that sometime in 1932 Survey No. 60/1 was transferred from the patta No. 557 of Gomathi Ammal to the Patta No. 116 of

Shahul Hameed and others (plaintiff''s predecessors - in - title). Certain kist receipts were also produced before the trial Court to show that no

payment of kist was ever made by Gomathi Ammal for Survey No. 60/1 after 1932. In fact, Gomathi Ammal herself had executed a will under

Exhibit B-5, dated 24th May, 1964 whereby she bequeathed, not Survey No. 60/1, but Survey No. 30/3, in favour of her sister and her sister''s

daughter. The consciousness behind this testament is consistent with her having lost possession of Survey No. 60/1 several decades earlier and

with her having been in possession only of Survey No. 30/3. It would, therefore, follow that on the date the Act came into force, she was certainly

not in physical or constructive possession of Survey No. 60/1. In fact, in the trial Court, the case of the defendants was that what was allotted to

Gomathi Ammal was only Survey No. 30/3 and not Survey No. 60/1, the Survey No. 60/1 mentioned in Exhibit A-1, the razinama decree was a

mistake for S. No. 30/3, and throughout Gomathi Ammal had been in possession of only Survey No. 30/3. The trial Court accepted this case and

went so far as to direct rectification of this mistake, forgetting that at the time it directed rectification (1966), a third party namely the plaintiff''s

predecessor had already acquired the vested remainder in Survey No. 60/1 under a Court sale on the basis that under the razinama, it was only a

life interest in Survey No. 30/3 that was allotted to Gomathi Ammal, and the vested remainder therein was held by Palaniandi Chettiar. No doubt,

the rectification ordered by the trial Court was set aside, both by the first Appellate Court and the second Appellate Court on certain grounds into

which we need not enter. The resulting position is that Gomathi Ammal was not at the time the Act came into force, in possession of Survey No.

60/1 even according to the defendants, and the evidence is conclusive that she was not in possession of Survey No. 60/1 on the relevant date. It

would, therefore, follow that Gomathi Ammal could not get the benefit of Sub-section (1) of Section 14 of the Act. It is unnecessary for us to

consider whether she could have acquired absolute title to Survey No. 30/3. The subject-matter of dispute in this Letters Patent Appeal is only

Survey No. 60/1 and not Survey No. 30/3. The third defendant has failed to make out that Gomathi Ammal was in possession of Survey No. 60/1

on the relevant date, and that consequently u/s 14 (1) of the Act, her restricted estate became enlarged into an absolute estate.

We, therefore, confirm the judgment of the. second appellate Court, though on different grounds, and dismiss this appeal. There will be no

order as to costs.