Thatha Gurunatham Chetti vs Smt. Thatha Navaneethamma (died) and another

Natesan, J.—This second appeal involves the question, of the applicability of S. 14of the Hindu Succession Act, of 1956 to the facts of the

case. One Guruviah Chetti died about the year 1932 prior to the Hindu Women''s Right to Property Act, 1937 leaving surviving his widow Thatha

Muniamma and four sons, Venkatachalam Chetti, Gurunathan Chetti, Narasimhalu Chetti and Bangaru Chetti. The four sons partitioned their family

properties in 1946 under the deed of partition Ex. A-2 dated 11th December, 1946. The family properties were divided into five Schs. A to E.

Schs. B to E were taken, one by each son and the A schedule which contained four items was allotted to the widow of the deceased, their mother,

for her maintenance. Under the terms of the allotment, the widow had no powers of alienations of any kind and had only the right to enjoy for her

life the income from the properties after meeting the taxes. The four items allotted to the widow for her lifetime were also the subject of division

between the four sons, the deed particularising the items respectively to be taken by the sons after her lifetime. Under this provision, the suit

property has to go to the share of the son Venkatachalam Chetti on her death. The said Venkatachalam Chetti died issueless in 1954, and the

plaintiff in the suit out of which this second appeal arises is his widow. The first defendant in the suit is the widow of Guruviah Chetti and mother of

Venkatachalam Chetti and his brother after the death of her son, Venkatachalam Chetti, by a registered deed, Ex. B-1 dated 6th December,

1956, she conveyed the suit property which was to go to the share of Venkatachalam Chetti on her death, to her son Gurunathan Chetti, the

second defendant, in the suit. It is in these circumstances, that the widow of Venkatachalam Chetti filed the suit for the declaration of the invalidity

of the conveyance of the suit property by the first defendant in favour of the second defendant, contending that the first defendant had no power of

alienation of the suit property beyond her lifetime and that the plaintiff as heir of Venkatachalam Chetti had the vested remainder in the property

after the lifetime of the first defendant. It was also pleaded for the plaintiff that the deed of a sale was a sham and nominal transaction brought about

to defraud the plaintiff of her right in the property. In defence, it was inter alia contended that Venkatachalam''s interest in the property was

contingent on his surviving the widow and that in any event, the widow''s right in the property had become absolute by reason of the Hindu

Succession Act 1956. The first defendant died pending the suit. No one was brought on record as her legal representative, and the defence was

continued by the 2nd defendant. All the contentions put forward in defence were overruled and it was further held that the sale deed Ex. B-1 was a

sham and nominal one. It was pointed out that the first defendant got the suit property only by virtue of the partition deed with restricted rights, and

that in the circumstances, there was no enlargement of her estate under the Hindu Succession Act. For the second defendant, who appealed as the

sole defendant, the only question mooted in appeal was whether on the date of partition, Ex. A-2 the properties allotted to the first defendant

vested in her, the plaintiff''s husband having only a contingent interest. As may be expected, in the face of the clear recitals in the deed of partition,

the question was answered against the appellant and the learned Counsel for the appellant has not re-agitated before me this aspect of the defence

in my view quite properly. Mr. K.R. Krishnaswami Aiyer, the learned counsel appearing for the appellant, however, strongly contended that the

property having been placed in the possession of the widow for maintenance, under S. 14of the Hindu Succession Act, it became her absolute

property. Learned counsel relied on the definition of property given in the explanation to Sub-S. (1) of S. 14. The explanation provides.--

In this sub-section, ''property'' includes both moveable and immovable property acquired by a female Hindu by inheritance or device, of 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 a after her marriage,

or by her own skill or exertion or by purchase of 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.

It was argued that the property in question in this case has been acquired by the widow either at a partition or in lieu of maintenance; it is

therefore ''property'' that fell under Sub-S. (1) of S. 14, for the respondent (plaintiff died pending the second appeal and her legal representative

has come on record), reliance is placed Sub-S. (2) of S. 14. Sub-S. (2) is an exception to Sub-S. (1) of S. 14and takes out of the application of

Sub-S. (1) property that would fall under Sub-S. (2). Sub-S. (2) runs thus:

nothing contained in Sub-S. (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.

It is contended for the plaintiff that the first defendant acquired the property for the first time only under the instrument of partition and that under

the Instrument she was given only a restricted estate, a life estate pure and and simple and not a woman''s estate, or what is popularly known as

the ""widow''s estate"" in Hindu law.

No doubt property given to a female in lieu of maintenance either before or after the Act, becomes her absolute properly under sub-S. (1). But

sub-S. (2) has engrafted an exception and while considering sub-S. (1), sub-S.(2) cannot be overlooked. Where the acquisition by the female of

the property is in any of the modes prescribed in sub-S. (2) and the acquisition is itself of a restricted estate, such an estate is not enlarged. sub-S.

(2) makes it clear that it is not the intention of the Legislature to grant full ownership to a Hindu female who gets the properly under a gift, will or

other instrument and the instrument itself in express terms gives her only a limited right or restricted estate in the property. All the clauses of S.

14must be read and interpreted one with the other, with S. 4and with the other provisions of the Act, and thus read, clearly S. 14is not intended to

override lawful terms in contracts and bargains or bequests and gifts. Certainly, it is not and it cannot be contended that the object of S. 14is to put

a Hindu female in a better position than a Hindu male where the gift or bequest of other instrument as a matter of construction of the document

confers only a restricted estate. S. 14 (1)of the Act only removes disabilities imposed by the personal law of the Hindus as to the quality or the

extent of the estate taken by the female in certain circumstances, generally found in inherited properties, properties given to her in partition and by

interpretation in properties devolving on her without specification of her estate therein. The Act it both an amending and codifying Act and in the

deflations of property in S. 14of the Act, it will be seen included not only property in which the female Hindu would have a limited estate but also

properties which he would hold as full owner even before the Act. For sub-S. (2) to apply, it is an essential condition that the instrument which

limits or restricts the estate should itself be the source or foundation of the female''s title in the property. If the has an existing right in the property,

the interposition of an instrument will not affect the operation of sub-clause (1) on the property. If the instrument, be it a decree or order or award,

or deed of partition merely declares the pre-existing title of the Hindu woman to any particular property sub-S. (2) would not take the property out

of the coverage of sub-S. (1). Where a female Hindu takes property under an instrument of the kind specified in Sub-S. (2), and not by virtue of

any antecedent legal right or title in the property, any restriction placed on the property would have its full effect.

Learned Counsel contends that a widow of a deceased coparcener like the first defendant in this case has a right to be maintained from the

family properties and this interest is sufficient for the operation of S. 14of the Act. But the right to be maintained out of family properties by itself

does not confer on her any possessory lien or proprietary right or title in the property of the family. The widow''s right to be maintained out of her

husband''s properly or out of joint family property is an indefinite right which no doubt can be made certain and charged on specific properties by

agreement, decree of Court of Panchayat, ward or otherwise. S. 39of the Transfer of property Act provides for the enforcement of the right of

maintenance from the profits of Immovable property even against a transferee of the property if he has notice thereof or where the transfer is

gratuitous ; but it is manifest that neither S. 39of the Transfer of Property Act nor the personal law make the bare right of maintenance out of the

profits of a property a proprietary right in the property, given when a charge is created over a specified property it is well known there is no

transfer of the property or of any right in the property, only there is creation of a right of payment out of the property. In the discharge of the

obligation to maintain out of the estate of the husband or of the property of the family, particular property may be transferred to the female and

placed in her possession. Thus no doubt she acquires the property in lieu of maintenance, but the instrument where there is one which transfers the

property to her is then the source of her title to the property. She acquires the property only under the instrument, true in lieu of her right to

maintenance. If there are no restrictions on the estate thus carved out or no limitation on the property thus provided for maintenance in the

instrument, then Sub-S. (1) of S. 14can apply. But if the instrument gives only a restricted estate, Sub-S. (2) is attracted. As to the validity of the

restriction imposed under the instrument, one must look to the Transfer of Property Act the Succession Act or other laws governing transfer of

interest in the property. But restrictions validly imposed by the instrument will have full operation notwithstanding that the beneficiary under the

instrument is a Hindu female and she takes the estate may be in lieu of maintenance or for arrears of maintenance.

Learned Counsel for the appellant sought support for his contention in the decisions. Sasadhar Chandra Day and Others Vs. Sm. Tara Sundari

Dasi and Others, and Shanbati v. Hiralal AIR 1964 Pun. 114 in my view, these decisions are of little help to the appellant. In Sampath Kumari v.

Lakshmiammal ILR 1962 Mad. 832 the Hindu male died intestate leaving his two widows and two daughters and the instrument which was relied

upon as restricting the right of the widows under S. 14(2) of the Act was the deed of partition between the two widows. The learned Judge,

Venkataraman, J. who delivered the leading judgment of the Bench in the case besides observing that the deed there in question did not in any way

restrict the ordinary Hindu widow''s estate which each of the widows would otherwise have had in the properties on the date of the partition,

observed at page 855:

Secondly, we are also in agreement with the learned Subordinate Judge that it cannot be said that the widows acquired the right to the properties

only under the partition deed, for the simple reason, that they had acquired the right even previously by inheritance as widows of their husband and

the partition merely divided the properties allotting some to the first defendant and the rest to the fourth defendant.

The case Sasadhar Chandra Day and Others Vs. Sm. Tara Sundari Dasi and Others, is also similar. It is pointed out that a property is said to

be ""acquired"" under S. 14(2) when prior to the acquisition the person who acquired it had no interest in the property. It is observed at page 440:

If prior to the date of the decree (it was a case of allotment of property to a female Hindu under a pre-Act partition decree) the the Hindu females

had title and all that the decree does is to declare the title of the female Hindu in the said properties, the female Hindu cannot be said to have

acquired the property under the decree. Her right is merely declared. Such a declaration of a preexisting right in a property cannot be said to be an

acquisition of property by a female Hindu. The preliminary decree in a partition suit does nothing more than declare the existing rights of the parties.

In the case of a female Hindu the declaration must necessarily be to the effect that she would have restricted estate of a Hindu female. It cannot be

said that such a declaration in the preliminary decree, the Hindu female acquires a share in the joint family property, Nor does the direction in the

preliminary decree to allot to her property to be held by her in severalty in lieu of her undivided share in the joint estate amounts to acquisition of

new property by her. The preliminary decree in a partition suit cannot therefore be said to be a decree within the meaning of sub-S. (2) of S. 14.

In Sharbati Devi v. Hiralal AIR 1964 Punj. 114 a case from Punjab the properties were mutated half and half between the widow and her

husband''s brother. In a subsequent suit between the two there was a compromise decree and it was claimed that subsequent to the Hindu

Succession Act of 1956, the property having been taken by the widow in lieu of maintenance, she became the full owner of the same under S. 14

(1) of the Act. Upholding the claim, it was observed at page 116:-

It is admitted that by means of the compromise on which the consent decree was passed in 1951 she did not get any larger interest or was not put

in possession of more properties or share in the properties than what was in her possession already by virtue of the mutation dated 31st

December, 1938..... In this view, of the matter it cannot be said that it was by virtue of the decree that the appellant came to be in possession of

the suit property.

It should be noticed that when the properties were mutated half and half the widow was put in possession of a part of the estate in lieu of

maintenance or no restrictions were specifically imposed on her interest in, the property. On the other hand reference may be made to the decision

in Mt. Sampato Kuer and Another Vs. Dulhin Mukha Debi and Others, . In that case, a widow who came into possession of her husband''s

property gifted all of them to her daughters in 1947 and the daughters in turn executed a deed of maintenance in her favour providing by the deed

that she would have possession of the properties for her lifetime only with a right to enjoy the income from the property in lieu of maintenance. She

was conferred no powers of alienation. The learned Judges, Ramaswami C.J. as he then was and Kanhaiya Singh J. held that the widow''s interest

in the case was only a restricted estate and the case was governed by sub-S. (2) and not by the sub-S. (1) of S. 14of the Hindu Succession Act.

The first defendant in this case lost her husband prior to the Hindu Woman''s Right to Property Act 1937. The only right that she then had

under the law was right to be maintained out of the family properties. She had no title and no right to share in the family properties. The sons could

have contended themselves with making a regular money payment and if required charging certain properties for the maintenance amount. But

when they partitioned the estate amongst themselves, they set apart property giving her a life estate pure and simple in the property, the property to

revert to the sons on her death. The estate given to the widow for her maintenance was restricted to a life estate. She was not granted any powers

of alienation. Her right was limited to the enjoyment of the income from the property. What she got under the partition was not the qualified estate

of a Hindu female known as woman''s estate or widow''s estate. She was not even a party to the partition deed as partition could be had only

between persons having pre-existing proprietary rights in the property. It follows that the estate given to the widow under the instrument of partition

fell under S. 14(2)of the Act, and that S. 14(1) did not operate on the estate and make the widow a full owner. In the circumstances, any alienation

by the widow cannot ensure beyond her lifetime. The second appeal therefore fails and is dismissed and in the circumstances these will be no order

as to costs.