Hussain Uduman vs Venkatachala Mudaliar and Others

Maharajan, J.—This Letters Patent Appeal which is directed against the second appellate judgment of V. Ramaswami, 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 Chcttiar. Viswanatha Chettiar died on 18-2-1918. Sometime before his death, he executed a

partition deed and a will whereby he bequeathed the suit property and other properties to his wife, Gomathiammal. After his death, disputes arose

between Gomathi animal and Palaniandi Chettiar. Thereupon, Gomathiammal instituted two suits in the District Munsif Court, Tirunelveli, for

enforcement of the partition deed and the will and for direction to register the same. On 6-11-1920 under Ex. A.1, both the suits were

compromised by the parties, and a decree was granted in terms thereof, Under the terms of the decree, Gomathiammal 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 Vefayutham

Pillai and Ramiah Pillai obtained a decree against Palaniandi Chettiar in S. C. 564 of 1934 and in execution thereof brought to sale the vested

remainder that Palaniandi Chetliar had in the suit property, purchased the same and obtained symbolic delivery of possession. The plaintiff

purchased this right from the court auction purchasers on 29-11-1954. Gomathiammal herself died on 8-8-1964. 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

Gomathiammal, the father of defendants 1 to 12 got possession of item 1 (S. 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. Defendant 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 Mohammed Hanifa Tharaganar, contended that as per the compormise decree, Gomathiammal

was given S. 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 S. No. 60/1 instead of as S. 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 S. 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 S. 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 S. No. 60/1 instead of as S. No. 30/3, that

Palaniandi Chettiar sold S. No. 60/1 to the predecessor-in-interest of the defendants and that therefore 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 I as well.

Against this judgment, the third defendant preferred S. A. 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 Gomathiammal 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 Gomathiammal got under Ex. A.1, the razinama decree dated 6-

11-1920, 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, Gomathiammal 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 estate u/s 14(1) of the Hindu Succession Act.

Section 14 of the Hindu Succession Act reads as follows--

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 prescribed 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 device 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 this 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 ''o 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 (1) 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 restate 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 (2) 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 course 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 that 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 (3) 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 Ex. A.1, Gomathiammal 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 properly. In order to understand what she actually got under the compromise, it is necessary to set forth a few facts: Gomatbiammal was the

wife of Viswanatha Chettiar, who died on 18-2-1918, leaving him surviving his widow Gomathiamrnal and his younger brother Palaniandi Chettiar.

A few days prior to his death, that is to say, on 13-2-1918, 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 S. No. 60/1, the property now in dispute and some

other items in favour of Gomathiammal. Gomathiammal proceeded to enforce her rights under the partition and under the testament of her husband

by instituting two suits, O. S. 262 of 1920 and 286 of 1920 on the file of the District Munsif Court, Tirunelveli, against Palaniandi Chettiar.

Palaniandi Chettiar contested both these suits. But ultimately on 6-11-1920, Gomathiammal and Palaniandi Chettiar entered into a compromise

which was recorded by the court, and embodied in a decree as per Ex. 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 a house in Kokkarakulam) were allotted to Gomathiammal for her

maintenance to be enjoyed by her for life. It was further provided that after the lifetime of Gomathiammal, Palaniandi and his heirs should become

absolutely entitled to the said properties. It was also provided that Gomathiammal 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 Gomathiammal.

It may be noted that in the suits filed by Gomathiammal, 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. Viswanatha 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 Gomathiammal and his brother Palaniandi Chettiar in regard to the registration of the said two documents. The registering

authorities having refused to register the documents, Gomathiammal filed two suits O. S. 264 of 1920 and O. S. 286 of 1920 respectively, both on

the file of the Additional District Munsif 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 Gomathiammal claimed rights to the suit property

and other properties of her husband and traced her title to the partition deed under 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 Gomathiammal, 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 Ex. A-1 is not a document, which by its own force and independently of any pre-existing right of Gomathiammal 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 hi the suit property and certain other properties: Under the compromise, the preexisting 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 Gomathiammal, the benefit of Section 14(1) of the Act, we

must be satisfied that she possessed the suit property as limited owner on 17-6-1956, 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 pos session 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 Bera and Others Vs. Haridas Samanta and Others, 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 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 which 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 Gomathiammal was on the date of the Act in physical or constructive -possession of S.

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 S. No. 60/1 under the compromise decree set out in the plaint, that what was really given to her was S. No.

30/3 and another property, that Gomathiammal was in enjoyment of S. No. 30/3 and ihe other property right from ihc date of the said compromise

and that she never had possession of S. No. 60/1 which is item 1 of plaint schedule. It is also found from the evidence of P. W. 2 that some time in

1932 S. No. 60/1 was transferred from Ihc patta No. 557 of Gomathiammal 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

Gomathiammal for S. No. 60/1 after 1932. In fact, Gomathiammal herself had executed a will under Ex. B-5, dated 24-5-1964, whereby she

bequeathed, not S. No. 60/1, but S. 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 S. No. 60/1 several decades earlier and with her having been in possession only of S. 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 S. No. 60/1. In

fact, in the trial court, the case of the defendants was that what was allotted to Gomaihiammal was only S. No. 30/3 and not S. No. 60/1, that S.

No. 60/1 mentioned in Ex. A.1, the razinama decree was a mistake for S. No. 30/3 and throughout Gomathiammal had been in possession of only

S. 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 S. No. 60/1 under a court sale

on the basis that under the razinama, it was only a life interest in S. No. 30/3 that was allotted to Gomaihiammal, 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 Gomathiammal was not at the time the Act

came into force, in possession S. No. 60/1 even according to the defendants, and the evidence is conclusive that she was not in possession of S.

No. 60/1 on the relevant date. It would, therefore, follow that Gomathiammal 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 S. No. 30/3. The subject-matter of the dispute in this Letters

Patent appeal is only S. No. 60/1 and not S. No. 30/3. The third defendant has failed to make out that Gomathiammal was in possession of S. 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.