Thoppa Naicker vs Smt. Chinnammal and another

The substantial question of law raised in this second appeal is with reference to the interpretation of Section 14(1) of Hindu Succession Act,

1956, in and by which, any right of a female Hindu, who possessed any property acquired either before or after the commencement of the Act,

should be held to be held by her as full owner thereof and not as a limited owner.

In the case on hand, the respondents herein who are the wife and daughter of the deceased Andi Naicker came forward with the suit for

partition as against the appellant who is none other than the younger brother of the said Audi Naicker, in respect of 11 items of suit schedule

properties said to have been owned by the joint family of the appellant along with the deceased Andi Naicker. The said Andi Naicker is stated to

have expired on 20.8.1952. Out of 11 items of the properties, in respect of item No.9, it is conceded by the respondents herein that the same is

the exclusive property of the Appellant''s daughter and therefore the conclusion of the Courts below in excluding the said Item of the property is

not questioned. As regards the other properties, the contention of the respondents was that those properties were the joint family properties of the

deceased Andi Naicker held along with the appellant herein, that the first respondent herein being the widow of the late Andi Naicker, was as a

matter of right, entitled to half share in the various items of the suit schedule properties except item No.9. The Courts below accepted the case

pleaded by the first respondent herein and passed a preliminary decree in favour of the first respondent herein.

The learned counsel for the appellant, after referring to Section 14(1) and (2) of the Hindu Succession Act, 1956, would vehemently contend

that as there was no pre-existing right in favour of the first respondent herein as on the date when 1956 Act came into force, she had absolutely no

right to rest her claim based on sub-section (1) of section 14 of the Act. The learned counsel relied upon Vaddeboyina Tulasamma and others v.

Vaddeboyina Sesha Reddi (died) by L.rs, AIR 1977 SO 1944 as well as 1999 SCR Civil 185 equivalent to Smt. Naresh Kumari (Dead) By Lrs.

and Another Vs. Sh. Shakshi Lal (Dead) By Lrs. and Another, and Velamuri Venkata Sivaprasad (D)By Lrs. Vs. Kothuri Venkateswarlu (D)By

Lrs. Ors., .

As against the above stated submission of the learned counsel for the appellant, Sri R.Subramanian, learned counsel for the respondents would

contend that by virtue of the provision contained in Hindu Women''s Rights to Property Act, 1937, the first respondent having acquired her lawful

right by stepping into the shoes of her late husband in respect of his share in the joint family property, held by the appellant along with her late

husband Andi Naicker, the limited right held by the first respondent got enlarged by virtue of Hindu Succession Act, 1956 and in the

circumstances, the judgment of the Courts below cannot be interfered with. The learned counsel for the respondents relied upon Jalkishan Mallah

Matseyajeevi Sahakari Samiti Ltd. Vs. State of Uttar Pradesh and Others, for the proposition that there is a distinction between possessed as

against the expression in possession while interpreting section 14(1) of the Hindu Succession Act, 1956. I am entirely in agreement with the learned

counsel for the respondents for the proposition of Jaw as advanced by him in his arguments.

Section 14(1) of the Hindu Succession Act, 1956 reads as under;

S. 14 property of a female Hindu to be her absolute property. (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.

As far as sub-section (1) of section 14 is concerned, in my opinion, as rightly contended by the learned counsel for the respondents, one need not

to go to the explanation part of sub section (1) of section 14. A reading of sub section (1) of section 14 itself would show that what all required is,

a female Hindu must have possessed her property which she should have acquired either before or after the commencement of the 1956 Act. In

which event, she should be held to be full owner thereof and not a limited owner.

A reading of Sections 3(2) and 3(3) of Hindu Women''s Right to Property Act, 1937, would show that a right is created in favour of a Hindu

widow governed by any school of Hindu Law other than the Dayabhaga School at the time of the death of her husband, an interest in a Hindu joint

family property, the same interest as her husband had. The said right was, however, subject to the extent of limited interest known as a Hindu

woman''s estate, though in all other respects, she should have the same right of claiming partition as a male owner. A conjoint reading of sub

sections (2) and (3) of Section 4 of Hindu Women''s Rights to Property Act, 1937 along with Section 14(1) of the Hindu Succession Act, 1956,

did show that a Hindu widow, who was holding a limited right to possess a property as a Hindu widow, while keeping intact, the said right, a

further right was created in her favour to claim that share of her property which her husband would have claimed in a joint family property as a

coparceaner. To that extent, when the right of a Hindu widow was recognized under sub sections (2) and (3) of Section 3 of Hindu Women''s

Right to Properties Act, 1937, under the Hindu Succession Act, 1956 a further enlargement was made to the extent that she could exercise all her

rights as a full owner of any such property.

To what extent, when the law is so very clear, the only other questions to be considered is what is the significance or the meaning to be given to

the word ""possessed"" under sub section (1) of section 14 of the Hindu Succession Act, 1956. In this context, I wish to be guided by the judgment

of the Honourable Supreme Court reported in Mongol Singh and others v. Smt. Rattno (dead) by her L.Rs. AIR 1967 SC 1786, Vaddeboyina

Tutasamma and others v. Vaddeboyina Sesha Reddi (died) by Lrs AIR 1977 SC 1944 as Velamuri Venkata Sivaprasad (D)By Lrs. Vs. Kothuri

Venkateswarlu (D)By Lrs. Ors., .

In Mongal Singh and others v, Smt. Battno (dead) by her L.Rs., AIR 1967 SC 1786, their Lordships have stated the legal position as under:

..... it appears to us that the expression used in Section 14 of the Act was intended to cover cases of possession in law also, where lands may have

described to a female Hindu and she has not actually entered into them. It would of course, cover the other cases on actual or constructive

possession. On the language of Section 14(1), therefore, we hold that this provision will become applicable to any property which is owned by a

female Hindu, even though she is not in actual, physical of constructive possession of that property."" (Italics is mine)

In Vaddeboyina Tulasamma and others v. Vaddeboyina Sesha Reddi (died) by Lrs, AIR 1977 SC 1944, the famous Tulasamma''s case, AIR

1977 SC 1944 wherein the provisions of the 1956 Act came up for consideration, in particular section 14(1) of the said Act, their Lordships have

explained as to how Section 14(1) is to be construed. The relevant passage rendered in the said judgment can be usefully referred to which has

been stated in Para 3 of the said judgment,

The Act confers upon Hindu females full rights if inheritance and sweeps away the traditional limitations on her powers of disposition which were

regarded under the Hindu Law as inherent in her estate"". Sub- section (1) of section 14 is wide in its scope and ambit and uses language of great

amplitude. It says that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by

her as full owner thereof and not as a limited owner. The words "" any property"" are even without any amplification, large enough to cover any and

every kind of property, but in order to expand the reach and ambit of the section and make it all comprehensive the legislature has enacted an

explanation which says that property would include 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 the Act. Whatever be the kind of property, movable or immovable, and whichever

be the mode of acquisition, it would be covered by sub- section (21) of Section 14, the object of the Legislature being the wipe out the disabilities

from which a Hindu Female suffered in regard to ownership of property under the old Sastric I,aw, to abridge the stringment provisions against

proprietary rights which were often regarded as evidence of her perpetual tutelage and to recognize her status as an independent and absolute

owner of property.

Subsequently in Smt. Naresh Kumari (Dead) By Lrs. and Another Vs. Sh. Shakshi Lal (Dead) By Lrs. and Another, , it has been reiterated to

the following extent.

The words ""possessed by"" used by the Legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a

properly even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a

preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the

property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property. It is equally well

sealed that the possession of the widow however, must be under some vestige of a claim right or title, because the section does not contemplate

the possession of any rank trespasser without any right or title. (ltalics is mine)

The learned counsel for the appellant, would however, contend that a reading of sub- para (2) of para 11 of the judgment reported in Velamuri

Venkata Sivaprasad (D)By Lrs. Vs. Kothuri Venkateswarlu (D)By Lrs. Ors., , would show that unless a Hindu Widow had asserted her right in

the form of partition decree by invoking the provisions of the Hindu Women''s Right to Property Act, 1937, it cannot be held that she had a pre-

existing right so as to rely upon sub- section (1) of section 14 of the Act. I am unable to accept the said contention of the learned counsel for the

appellant. On a plain reading of sub -section 1 of section 14 read along with sub- sections (2) and (3) of section 3 of Hindu Women''s Rights to

Property Act, 1937, it is crystal clear that a Hindu widow acquired a right in her favour in respect of the share of her late husband in a joint Hindu

family property which was in existence and which was existing to a limited extent got fully enlarged by virtue of the coming into force of the 1956

Act in particular, by virtue of sections 14(1) and 15 of the said Act. By virtue of the coming into force of 1937 Act, when a right had already come

into existence in favour of a Hindu widow, it cannot be said that unless a decree for partition is obtained, such a right did not get crystallised so as

to maintain her claim under sub section (1) of section 14 of the Act, 1956. A reading of Paragraph 3 of the judgment of the Honourable Supreme

Court in Tulasamma''s case, AIR 1977 SC 1944 and Paragraph 6 (6) Smt. Naresh Kumari (Dead) By Lrs. and Another Vs. Sh. Shakshi Lal

(Dead) By Lrs. and Another, , make it clear that what all required was whether the widow had a right or title to claim and so long as her title to

that share of the property which she was entitled to claim as a matter of right by virtue of application of 1937 Act the first respondent herein was

fully entitled to claim for the same after the coming into force of 1956 Act by virtue of sub section 4 of section 14 of the Act.

I hold that having regard to the application of 1937 Act, the first respondent had a per-existing right as on the date when the Hindu Succession

Act, 1956 came into force and as such her right to claim for partition was fully protected under the said provision of the said Act and the courts

below were therefore right in granting a preliminary decree of half share of the properties in item Nos.1 to 11 except Item No.9 in her favour. The

only substantial question of law raised on behalf of the appellant having been answered against the appellant, the second appeal fails and the same

is dismissed. No costs. Consequently, the C.M.Ps are closed.