Pachiammal vs N. Radhakrishnan

Sengottuvelan, J.—The legality and correctness of the judgment and decree of the learned Subordinate Judge of Tiruvannamalai in A.S. 7 of

1978, regarding the interpretation of section 14 of the Hindu Succession Act, are challenged in this second appeal. The facts of the case are briefly

as follows:- One Sadaya Achari died on 21st November, 1918 leaving behind him his widow Kishtammal, his son Nagappan alias Kuppa Achari

and his two daughters Rajammal and Chinnathayammal Nagappan alias Kuppa Achari married one Pachiammal, the appellant herein (the plaintiff

in the suit;. Nagappan alias Kuppa Achari died on 30th October, 1946. The genealogical table showing the relationship among the parties is gives

below:-

Sadaya Achari = Kishtammal (died on 21-11-1918).

Pachaiammal, the widow of Nagappan alias Kuppa Achari filed the above suit for a declaration that she is the absolute owner of the suit properties

and for possession of the same. It is alleged in the plaint that the defendant viz, the respondent herein, by means of the sale deed, dt. 1st January,

1975 purported to purchase the suit properties from Kishtammal the widow of Sadaya Achari and Rajammal and Chinnathayammal, the daughters

of Sadaya Achari and that the vendors had no right to convey the suit properties in favour of the respondent. It is also alleged in the plaint that the

respondent trespassed upon the suit properties shortly after the purchase in January 1975 and bad taken possession of the same. Hence the

appellant/plaintiff came forward with the suit for the relief of declaration and for recovery of possession. The contention of the

respondent/defendant is that the suit properties originally did not belong to Sadaya Achari, on the other hand, it belonged to Kishtammal. The

respondent also contended that the patta in respect of the suit properties stood in the name of Kishtammal for more than 40 years, that it is not

correct to say that since the said Nagappan alias Kuppa Achari was a minor the patta stood in the name of Kishtammal and that the patta always

stood in the name of Kishtammal till it was purchased by the respondent. Nagappan alias Kuppa Achari was never in possession of the suit

properties and be did not enjoy the same. It was only Kishtammal who was in possession and enjoyment of the suit properties. At the time of

death of Nagappan alias Kuppa Achari, that is 32 years prior to the riling of the suit, the appellant could not have succeeded to the estate of the

deceased Kuppa Achari. According to law as it stood then the estate of Kuppa Achari devolved by survivorship upon the next reversioners since

Kuppa Achari had no brothers. As the law then stood the appellant will not be entitled to the agricultural properties of her husband but she is only

entitled to non-agricultural properties. The allegation that the appellant had been in separate possession and enjoyment of the suit properties for

more than 30 years and thus she had perfected title by adverse possession is also denied. It was also alleged that Kishtammal was in possession

and enjoyment of the suit properties and perfected title to the same by adverse possession. The learned District Munsif after considering the

documentary and oral evidence in the case came to the conclusion that the suit properties originally belonged to Sadaya Achari and that they were

not the absolute properties of Kishtammal. The learned District Munsif also held that the appellant/plaintiff is the sole heir of Nagappan alias Kuppa

Achari. Considering the documents Exs. A5 to A7 relating to possession the learned District Munsif came to the conclusion that the

appellant/plaintiff had perfected title by adverse possession. The learned District Munsif also held that the respondent/defendant had not perfected

title by adverse possession. The District Munsif came to the conclusion that the respondent is not a bona fide purchaser for value. In view of the

findings arrived at the learned District Munsif passed a decree as prayed for. As against the judgment and decree of the trial court, the defendant,

viz., the respondent herein, preferred A.S. No. 7/78 on the file of the Subordinate Judge of Tiruvannamalai. The learned Subordinate Judge do a

consideration of the oral and documentary evidence in the case came to the following conclusion: Kishtammal as the wife of Sadaya Achari had in

law a right to maintain herself out of the joint family properties of late Sadaya Achari and that right is deemed to be an interest in the immovable

property which had become absolute as per S. 14(1) of the Hindu Succession Act. Consequent to the enactment of S. 14(1) Kishtammal is

entitled to an absolute right and as such she along with her daughters is entitled to sell a half share in the suit properties. In view of the conclusion

arrived at the learned Subordinate Judge allowed the appeal and passed a decree for partition and possession of a half share in respect of the suit

properties. The plaintiff had filed the above second appeal challenging the legality and correctness of the judgment and decree of the learned

Subordinate Judge.

Since the determination of the question in this second appeal turns round on the true interpretation of the two sub-sections of S. 14 of the Hindu

Succession Act, the same is set out below:-

14(1) Any property possessed by a female Hindu, whether acquired before or alter 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-S. (1) shall apply to any property acquired by

way of gift or under a Will of any other instrument or under a decree of 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"".

Before the enactment of S. 14, the Hindu law, as it was then in operation, allowed; only a restricted interest to a Hindu female in the property,

inherited by her and even as regards the nature of this restricted interest there was a divergence of opinion. The intention of the Legislature in

enacting S. 14 is to convert the interest which a Hindu female has in the property, however, restricted the nature of that interest under the Sastric

Hindu Law may be, into absolute estate. By the enactment of the above said section absolute rights are conferred upon the female Hindus with full

rights of inheritance and the traditional limitation on her powers of disposition which were regarded under the Hindu Law as inherent in her estate

are done away with. Sub-S. (1) of section 14 lays down that any property possessed by a female Hindu shall be her absolute property without any

limitation and the term ""any property"" occurring in S.14 (1) includes both movable and immovable properties acquired by a female Hindu by

inheritance or device, or at partition, or in lieu of maintenance or arrears of maintenance or by a gift from any person. The Supreme Court in a

series of decisions had given an elaborate interpretation of Sub-S. 1 of S. 14 bearing in mind the social purpose of the legislation. In the case

reported in Gummalepura Taggina Matada Kotturuswami v. Setra Veeravva 1959 Supp 1 S.C.R. 968 the words ''possessed of occurring in S.

14(1) have been interpreted as 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 recognized by law.

In the case reported in Mangal Singh v. Rattno AIR 1967 S.C. 1786 the Supreme Court pointed out that S. 14 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. Thus it is seen that sub S. 1 of S. 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 was subsequently acquired and possessed, she would become the full owner of the property.

Sub-S (2) of S. 14 is more in the nature of a proviso to sub-S.(1) and as per the decision of the Supreme court in Badri Pershad v. Smt. Kanso

Debi 1970-2 S.C.R. 95 sub-S. 2 excepts certain kinds of acquisition of property by a Hindu female from the operation of sub-S. (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 women 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-S. (1). It cannot be interpreted in a manner which would rob sub-S. (1) of its efficacy and deprive a Hindu female of the

protection sought to be given to her by sub-S. (1). The intention of the Legislature is to make the property possessed by a female Hindu which is

acquired by her in lieu of maintenance or by a gift, her absolute property. But in the process of acquisition of such rights prior to the

commencement of the Act it was always natural to describe the incidence of the right in the document relating to such acquisition In other words in

all cases where the Hindu females were put into possession of a portion of the family property in lieu of the maintenance prior to the Act it was

usual to insert the recital that the property should be enjoyed by the female for her life time and afterwards it would revert to the heirs of the last

male owner. If this recital is taken to be a restricted estate to which S. 14(2) applies then the very purpose in enacting S. 14(1) viz., converting the

restricted estate of a woman into an absolute estate, will fail The I Supreme Court taking into consideration the intention of the Legislature laid

down that in cases where the possessory right emanated from a pre-existing right, such as maintenance, then even if the document contains a

restricted estate S. 14(1) would be attracted and S.14(2) cannot be applied to such cases. In the case reported in V. Tulasamma and Others Vs.

Sesha Reddy (Dead) by Lrs., the Supreme Court after considering the entire decisions rendered by the Supreme Court earlier and the several

High Courts, laid down the law positively that in cases of acquisition of rights by Hindu females in pursuance of a pre-existing right in spite of

restricted covenants only S. 14(1) will apply and the property will enlarge into an absolute estate. But where the property is acquired by a Hindu

female under an instrument for the first time without any pre-existing right solely by the virtue of an instrument, she must hold it on the terms on

which it is given to her and if what is given to her is a restricted estate, it would not be enlarged by reason of sub-S. (2).

Having understood the legal position we will have to consider the facts of this case to see whether the conclusion arrived at by the first appellate

court is correct. The first appellate court came to the conclusion that Kishtammal''s right to maintenance out of the family property is itself a right to

property possessed by her in the family property which had converted itself into an absolute estate as per S.14(1). It is seen from the evidence in

this case that soon after the death of Sadaya Achari the registry of the entire family property including the suit property was transferred in the name

of Kishtammal as guardian mother of the minor Nagappan alias Kuppa Achari. After the attainment of majority the registry had been transferred in

the name of Nagappan alias Kuppa Achari and Ex. A4 is the patta book issued to Nagappan alias Kuppa Achari. After his death kist had been

paid by Pachiammal, the appellant herein, in respect of the entire property as evidenced by Ex A5 series. There is no evidence to show that

Kishtammal was put in possession of any item of property in lieu of her right to maintenance. Of course there is also no evidence to show that

Kishtammal relinquished her right to maintenance.

The question to be considered is whether the right of Kishtammal for maintenance can be considered as a right in the family properties. If it can

be said that the right to maintenance is the right to property then S. 14(1) will apply to such a right since the Supreme Court in the case reported in

Mangal Singh v. Rattno AIR 1967 S.C. 1786 held that the words ''possessed of'' occurring in S. 14(1) need not even be actual or physical

possession of the property and will include even a mere right of possession and S. 14(1) takes in its fold the juridical possession also. A Division

Bench of this Court in the case reported in Muthu Bhattar v. D. Cokku Bhattar 88 L.W. 602 = AIR 1976 Mad 8, a case arising under S. 14 of

the Hindu Succession Act, 1956, observed as follows :-

Before doing so, it is necessary to understand as to what is a maintenance right The components of maintenance understood both in civil and

criminal law are many and varied. Inter alia, it contains the right to claim food, attire and shelter. These and other ingredients of the right of

maintenance are to be consolidated and not to be treated disjunctively. In the case of the right of maintenance of a Hindu Female or a Hindu

widow, until the passing of the Hindu Adoptions and Maintenance Act, 1956, this was governed by the personal law of the parties. A peculiar

situation, however, is always demonstrable with reference to the pre-1937 widows. In the case of such widows or female members, when a

maintenance right is recognised either by the act of parties or by an involuntary measure, such as a decree of court, then that right so secured by

the Hindu female has to be understood with reference to the facts and circumstances under which the grant was made. But, as was stated by a Full

Bench of our court in Ramanadan v. Rengammal ILR 12 Mad. 260 at Page 268 (F.B):

The correct view is that the obligation to maintain the mother is strengthened by giving her an interest in immovable property and thereby enabling

her to constitute that interest into a specific charge, or an actual existing proprietary interest for the term of her life, and to protect her right of

maintenance against improvident alienation of the fund from which it is to be satisfied To this extent, the right of maintenance is a right in re or an

interest in ancestral property"".

We will have to consider whether the mere right of maintenance available to Kishtammal in the family properties can be considered as property

possessed by her to which S. 14(1) applies. The joint family estate of the deceased husband of Kishtammal is liable to provide maintenance to

Kishtammal and Kishtammal has a right to be maintained out of toe joint family properties. But it remains as a mere right until such maintenance is

determined and made a specific charge either by an agreement or by a decree of court. Kishtammal''s right to maintenance is not liable to be

defeated except by transfer to a bona fide purchaser for value without notice of her claim. The widow can for the purpose of her maintenance

follow the joint family property ""into the hands of any one who takes it as a volunteer or with notice of her having set up a claim for maintenance"".

The Supreme Court in the case reported in Shrimati Rani Bai Vs. Shri Yadunandan Ram and Another, had specifically laid down that the right to

maintenance itself transfers into a charge only when it is ascertained by means of an agreement or by a decree of court. In the case reported in V.

Tulasamma and Others Vs. Sesha Reddy (Dead) by Lrs., at page 273 while dealing with the rights of a widow for maintenance Bhagwati, J.,

observed as follows:-

The right of the widow to be maintained is of course not a jus in rem, since it does not give her any interest in the joint family property, but it is

certainly jus ad rem, i.e., a right against the joint family property Therefore, when specific property is allotted to the widow in lieu of her claim for

maintenance, the allotment would be in satisfaction of her jus ad rem, namely, the right to be main aimed out of the joint family property .It would

not be a grant for the first time without any pre-existing right in the widow. The widow would be getting the property by virtue of her pre-existing

right, the instrument giving the property being merely a document effectuating such pre-existing right and not making a grant of the property to her

for the first time without any antecedent right or title.

Taking into consideration the views expressed by the Supreme Court as well as this Court and also in view of the fact that the maintenance right

of Kishtammal, a pre-1937 widow, cannot be said to be ripened into a charge on the family property since the same had not been ascertained by

means of an agreement or by a decree of the court the maintenance right of Kishtammal remains only a mere right. As per the decisions cited

above that right in order to become a right in immovable property an ascertainment by mutual agreement or by a decree of court is necessary. In

this case there is no evidence to show that Kishtammal''s maintenance right was ascertained so as to form a charge on the immovable property.

Hence the view taken by the first appellate court that Kishtammal''s right to maintenance out of the family estate is an interest in the property which

becomes an absolute right as per S. 14(1) of the Hindu Succession Act, 1956, is not correct. I have no hesitation in setting aside the judgment and

decree of the first appellate court and restore the judgment and decree of the trial court. In the result the second appeal is allowed, the judgment

and decree of the first appellate court are set aside and the judgment and decree of the trial court are restored. However, there will be no order as

to costs.