Rangaswami Naicken vs Chinnammal and Another

S. Ramachandra Iyer, C.J.—Kariakali Naicken, a resident of Vethilakalipalayam in Coimbatore district, who with his son Sinnamma

Naicken, constituted a joint Hindu family, owned the two items of properties, which now form the subject-matter of this litigation. The appellant is

the son of Sinnamma Naicken. Even before he was born, Sinn amma Naicken appears to have executed a release of his interest in the joint family

properties in favour of his father. But that circumstance has little bearing to this case as it has been admitted that even after such release the father

and son and subsequently they along with the appellant lived as members of a joint Hindu family. The properties can therefore be regarded as co

parcenary properties of Kariakali Naicken and his grandson after the death of Sinnamma Naicken Who predeceased his father. Kariakalai

Naicken died in the year 1951 leaving behind him his widow Angammal, three daughters (who are the respondents to this appeal) and his

grandson, the appellant.

By virtue of the provisions of the Hindu Womens Right to Property Act, 1937; Angammal became entitled to a half-share in the properties of

the family the other half vesting in the appellant. Misunderstandings, however, arose between the two persons, the outcome of which was a suit

O.S. No. 63 of 1952 in the District Munsiff Court Coimbatore, by Angammal, for an injunction to restrain the appellant from interfering with her

possession. The suit, though contested at the beginning terminated in compromise. The substance of the arrangement was that Angammal was to

be declared entitled to half a share of the properties, but possession of that share was to be with the appellant so long as he paid her rents

stipulated. The terms of the compromise being material for the purpose of this case we give below certain relevant clauses there of.

The plaintiff (Angammal) be and hereby entitled to half-share of all the properties of ho husband;

that the first defendant (appellant herein) do enjoy the plaint properties without prejudice to the right of the plaintiff in the suit property.

Clauses 3 to 5 then provide for payment by the appellant past and future mesne profits and for recovery of possession of the half-share in case

there be default in the due payment of future rents.

Clause 9 which is material states:

that the first defendant shall be entitled to the suit properties after the plaintiff''s lifetime.

Clauses 1 and 9 are not very clear as to the extent and nature of the estate giver to Angammal in the family property, the former implying an

absolute estate, while the latter would if given effect to cut down the estate given into a life-estate. To resolve that ambiguity, it would be

permissible for us to refer to the terms of the compromise which afforded the basis on which the decree was passed. The memorandum of

compromise is in Tamil and is attached to the decree itself. Clause I there of: is to the following effect:

It is agreed that the plaintiff (Angammal) would be entitled under the law to a half-share in all properties which belonged to her husband and that

the first defendant (appellant) should enjoy the suit properties without prejudice to such a right.

Both the parties to the compromise enjoyed their respective properties in accordance with the terms thereof. While so, the Central Legislature

passed the Hindu Succession Act, 1956(XXX of 1956) : that became effective on 17th June, 1956 when the President gave his assent to it. u/s 14

of the enactment every property (subject to the exceptions mentioned therein) held under a limited right under the law by a Hindu female vested,

forthwith in her with absolute, rights. Angammal, claiming that by reason of Section 14(1) of the Act, she became entitled to a full disposable

interest in what she held, made on 7th March, 1957, a testamentary disposition of the same in favour her daughters the respondents herein. Soon

afterwards i.e., on 25th March, 1957, the testatrix died. The right of the legatees having been disputed by the appellant, the present suit for

partition and separate possession of one half-share in the properties was instituted by the respondents. Their claim failed in the trial Court: but on

appeal a decree for partition Was granted Venkataraman, J., sustained that decree though on slightly different grounds, granting however, leave to

the appellant under Clause 15 of the Letters Patent for his appeal.

The case for the appellant has been put forward on two alternative grounds viz.

(1) the compromise is the only source of Angammal''s title and as she obtained only a limited estate there under, Section 14(2) will prevent such an

estate being enlarged:

(2) even if it were to be held that the compromise is merely declaratory of her rights as limited owner u/s 3 of the Hindu Women''s Rights to

Property Act, Section 14(2) of the Hindu Succession Act will have the effect of saving even those rights from being enlarged into an absolute

estate.

There was some controversy in the lower Courts as to the admissibility in evidence of the compromise decree, as it had not been registered. It is

however, unnecessary indeed the learned Judge himself thought it unnecessary to decide that question. We assume for the purpose of this case that

the terms of the compromise can be looked into as to the extent of right obtained by the parties there under.

The first contention of Mr. R. Gopala swami Iyengar on behalf of the appellant is that what was granted to Angammal under the compromise

was a mere life estate. Support for this contention was sought in the appellant being enabled to continue in possession of the property indefinitely

and in the gift over in his favour under Clause 9. The former circumstance is not of much value as the parties might have thought that instead of

dividing the one item of land forthwith it would be convenient if the appellant continued as a tenant and paid the rent. Further, that arrangement was

to subsist only so long as he paid the rents (mesne profits) regularly ; in case of default the plaintiff was given a right to partition and separate

possession The other feature, viz, the disposal of a remainder of the estate after Angammal''s lifetime in favour of the appellant would prima facie

suggest that what the former was given under the compromise was a mere life estate. It is a recognised rule of construction of documents that they

should be read as a whole and effect should as far as possible be given to all the parts there of. For that purpose it is essential to ascertain first the

precise nature of estate given to Angammal. The decree as we said is a little obscure ; in order therefore to ascertain the intention of the parties, it

will be essential to read it along with Clause 1 of the compromise which clearly indicates that Angammal was to have what she under the law would

be entitled to in respect of her husband''s properties. At the time the compromise was made, the Hindu Women''s Right to Property Act was in

force ; Angammal had obtained her husband''s share by virtue of it. Sub-section (3) of Section 3 of that enactment states:

Any interest devolving on a Hindu widow under the provisions of this seadon shall be the limited interest known as a Hindu woman''s estate

provided, however, that she shall have the same right of claiming partition as a male owner.

What the compromise intended was therefore to recognise and declare her preexisting right in her husband''s properties ; her interest would be

a woman''s estate as known to Hindu Law. A Hindu widow in possession of her husband''s estate represents such estate in its entirety and so long

as she is in possession of that property, no other person has any right thereto. She will be the full owner of the property albeit her powers of

disposal are limited. There is, therefore, no scope for any vested remainder existing so long as the female owner possesses her estate as defined by

the law. The gift over of a remainder after a widow''s estate being in the nature of a spes succession is can confer no title. In Vasantharao

Ammannamma Vs. Vijiapurapu Venkata Kodanda Rao Panthulu and Others, Venkatframana Rao and Newasam, JJ., held that it would not be

possible to have a vested remainder after conferring a limited estate of the nature of a Hindu woman''s estate. Applying that rule to the present

case, Clause 9 of the compromise will be void, for repugnancy if the nature of the estate that is declared in favour of Angammal under Clause 1 is a

Hindu widow''s estate.

Once the conclusion is reached, namely, that it was not any new title that she acquired under the decree which only declared her pre-existing

right under the law, the gift over contained in Clause 9 will have to be regarded as invalid, as both a Hindu widow''s estate and a vested remainder

cannot co-exist. The appellant cannot therefore, obtain any rights under Clause 9.

It was then argued that even if Angammal were held to have a Hindu woman''s estate, that estate having been secured to her under the

compromise, provisions of Section 14(2) of the Hindu Succession Act, 1956, would prevent an enlargement of that estate into an absolute one.

From what we have said it will be plain that what the compromise did was merely to recognise the pre-existing title of Angammal to a half-share in

the properties. It was not intended as a fresh source of title or as a family arrangement of doubtful claims. No restriction has been imposed on the

enjoyment by Angammal except what is inherent in the nature of the estate, as a part of the law. In other words there is no restriction imposed by

virtue of any term in the compromise or grant. But Mr. Gopalaswami Iyengar argues that even so, Angammal having obtained the property by

reason of the provisions of the Hindu Women''s. Right to Property Act, 1937, the restriction imposed by Section 3(3) will continue to subsist by

reason of Section 14(2). In other words the contention is Section 14(1) will apply only to cases where a woman inherited the property under the

ordinary Hindu law and not where she got it by virtue of the provisions of Section 3 of the Hindu Women''s Right to Property Act. Before we

consider that point it will be useful to refer to Section 14 which runs:

(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 movables 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 gif 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 reading of the section will show that the intention of the Legislature is to enlarge the limited ownership of women in the property whether

acquired before or after the Acts into an absolute one. Sub-section (2) makes it clear that the object of the section is only to remove the disability

on women imposed by law and not to interfere with contracts, grants, etc., by virtue of which a woman''s right is restricted.

Section 14(1) is comprehensive in its ambit; the Explanation to that section, shows that whatever be the mode of acquisition whether it be by

inheritance or grant, the limited owner will thereafter have full ownership. But Sub-section (a) provides an exception to the operation of Section

14(1). It is based on the principle of sanctity of contracts and grants. Beth Sub-sections (1) and (2) use the word ""acquired "" which means ""gain

oneself for one''s self."" In the latter Sub-section, the mode of acquisition is specified ; in the former it is unlimited. An acquisition of property by

virtue of the provisions of any statute, like the Hindu Women''s Right to Property Act, will prima facie be comprehended by Section 14(1).

It is next argued for the appellant that widow obtaining property under the Hindu Women''s Right to Property Act is neither a case of

acquisition nor inheritance; but one by virtue of a statutory right, her husband in theory being alive in her. Vide the decision Movva Subba Rao and

Another Vs. Movva Krishna Prasadam by Padyala Muthaiya and Another, and that, therefore, Section 14 will not apply as the Explanation does

not envisage such a case. The fallacy underlying assumption of the argument is, that Sub-section (1) of Section 14 is confined in its operation to the

cases specified by the Explanation. But the Explanation is not exhaustive; it only includes certain cases which the Legislature felt might not come

within the main part of the section.

The right got by a Hindu widow under the former enactment though statutory is a right obtained under the law. The statute purported to give

better rights to widows and to that extent it amended the Hindu law. Such a right cannot be one obtained under any of the categories mentioned in

Sub-section (2). That provision is an exception and it should be strictly construed. It does not refer in terms to an acquisition of property under a

statute. But such an acquisition could be covered by Sub-section (1).

It is contended that a statute would be included within the term of "" other instruments"", in the section. ""Instrument"" according to Wharton''s

Law Lexicon, (14th edition) means a formal legal writing. That would, prima facie include documents inter-parties or those like wills, etc. In

Halbury''s Laws of England (3rd edition, Volume II) at page 371 it is stated:

The word instrument as applied to a writing may have a still wider scope and may include documents which affect the pecuniary position of parties

although they do not create rights or liabilities recognized in law ; but usually it applies to a document under which some right or liability whether

legal or equitable exists. It has been defined for purposes of particular statutes as including an Act of Parliament unless the context otherwise

requires and also as not including a statute unless the statute creates a settlement.

In other words while the word ""instrument"" can only refer to a document of a formal legal kind, it may in some cases include an Act of Parliament

as well if so defined for the purpose of any statute. In Emperor v. Ray an Gottda Lingangouda AIR 1944 Bom. 259, it was observed:

generally speaking an instrument is a writing usually importing a document of formal legal kind but it does not include Acts of Perliament unless

there is a statutory definition to that effect in any Act and in the absence of authority we are not prepared to hold that the order of the Government

delegating its powers to District Magistrate is an instrument within the meaning of Section 3(1) of the General Clauses Act; it is certainly not an

instrument as ordinarily understood.

The Hindu Succession Act, 1956, does not define the word ""Instrument"". We cannot therefore, regard the use of the word in Sub-section (2)

of Section 14 as referring to an Act of the Legislature. Secondly Section 14(2) sets out the category of documents conferring a limited estate on a

woman. The words ""other instrument"" must be held to signify not anything widely differing in character but something allied to documents set out

earlier i.e., the words ""other instrument"" should be read ejusdem generis with the categories of documents referred to earlier. This was also the

view of Mallick, J., in Sasadhar Chandra Day and Others Vs. Sm. Tara Sundari Dasi and Others, . We are, therefore, of opinion that, on a true

construction, Section 14(2) will not apply to a case of limited estate acquired by a woman under a statute. It has been held in several cases that

Section 14 is retrospective in so far as it enlarges a limited estate owned by a Hindu woman into an absolute one in respect of property inherited or

held by her before the Act was put on the Statute book.

Angammal who became entitled to a woman''s estate in half-share of the joint family properties, would likewise acquire an absolute title thereto

and she was, there fore competent to dispose it of by a will. The appeal fails and is dismissed. There will be no order as to costs in any of the

Courts as there has been some real difficulty in the construction of the compromise decree.