Thota Sesharathamma and Another vs Thota Manikyamma (Dead) by Lrs. and Others

N.M. Kasliwal, J.—In the above appeal and Special Leave Petitions question has been raised about the ambit and scope of Secs. 14(1) and 14(2) of the Hindu Succession Act, 1956(herinafter referred to as the Act'). Before adverting to the legal question, it would be proper to narrate in short the facts of each case.

Civil Appeal No. 630 of 1981

Thota Madhav Rao, the plaintiff filed a suit against Thota Manikyamma on the allegation that the plaintiff's father Yellamanda and the defendant's husband Late Venkata Subbayya were brothers. As the defendant and her husband had no issue they brought up the plaintiff as their foster son from the age of eight years and thereafter the plaintiff continued to live with them and was brought up treating him as their own son. Venkata Subbayya died on 14-1-1932 and before his death he executed a will bequeathing the suit properties in favour of his wife Suit. Thota Manikyamma for her life with a vested remainder in favour of the plaintiff. Both the parties lived together with perfect understanding but after some time there was misunderstanding and the defendant assumed hostile attitude towards the plaintiff and began to claim the suit property as her absolute property. The defendant also executed a registered will on 26-10-69 bequeathing the suit properties in favour of one Ramisetti Koteswar Rao. The plaintiff in these circumstances claimed absolute right in the suit properties after the lifetime of the defendant and challenged the right of the defendant to execute any will in respect of the suit properties. The defendant took the plea that her husband died issueless and intestate and did not execute any will at any time. Neither she nor her husband brought up the plaintiff as their foster son nor did they educate him. The defendant had brought up Ramisetti Koteswar Rao, who is her newphew, from his childhood and performed his marriage. On account of love and affection for him and his children, the defendant executed a registered will on 26-10-69 bequeathing all her properties in his favour. The Trial Court held the will dated 14-1-1932 proved and decreed the plaintiff's suit. The First Appellate Court upheld the Judgment and decree of the Trial Court. The defendant preferred a second appeal in the High Court. During the pendency of the Second Appeal in the High Court the plaintiff died and his legal representatives were brought on record. The High Court by Judgment dated 24-8-1979 allowed the second appeal and dismissed the suit with costs throughout. The legal representatives of the plaintiff have come to this Court by grant of special leave. The question involved is whether the life interest in the property acquired by Thota Manikyamma under the will executed by her husband and continued to be in her possession became her absolute property u/s 14(1) of the Act.

Special Leave Petition (C) No, 438 of 1919

One meenammal is the wife of Ovi Reddiar. Married life between Ovi Reddiar and his wife was not happy and cordial. Ovi Reddiar executed a Registered will exhibit A-4 dated 21-3-1921 bequeathing all his properties including the suit properties in favour of his mother and sister for their lifetime and thereafter in favour of Ramalinga Reddiar and Dhanush Koti Reddiar, the two sons of his sister and their issues. In the said will reference was made regarding the conduct of Meenammal in deserting him and in any event if she changed her mind and agreed to live under the protection of the legatees she was allowed to enjoy the income from item I of the suit properties and that she should construct a house in item referred to in the will and to live there during her lifetime and after her death the said Item 1 and the house site with the house shall go to the above mentioned Ramalinga Reddiar and Dhanush Koti Reddiar.

Ovi Reddiar died in 1922 and thereafter the legatees under the will entered into possession of all the properties. Smt. Meenammal put obstruction to the legatees in getting possession.

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The controversy raised in these cases is almost settled by a cumber of decisions of this Court. However, Learned counsel for the appellant in the appeal as well as Learned counsel for the petitioners in the Special Leave Petitions have raised an argument, placing reliance on Mst. Karmi Vs. Amru and Others, , that the life estate given to a widow under the will of her husband cannot become an absolute estate under the provisions of the Hindu Succession Act, as such we consider it proper to deal with this case in the light of other cases decided by this Court. Section 14 of the Hindu Succession Act, 1956 reads as under:

14(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 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 prescribe a restricted estate in such property.

The contention raised is that if a female Hindu acquires any property under a will which gives her a restricted estate in such property then provisions of sub-section (2) will override, the provisions of sub-section (1) of Section 14 of the Act which makes a female Hindu as full owner.

In Seth Badri Prasad Vs. Srimati Kanso Devi, a Bench of three Judges considered the question in detail. In the above case a a Hindu having self acquired properties, died in 1947 leaving five sons and a widow. On a dispute between the parties an Arbitrator was appointed in 1950. The Arbitrator gave an award and a decree was passed in terms of award. Under the award the widow was given widow's estate. It was held that the widow inherited the property u/s 3(1) of the Hindu Women's Right to Property Act, 1937 and was in possession of it within the meaning of the word possession in Section 14(1) of the Act and when by an award her share was separated by metes and bounds, she also acquired the property within the meaning of that section. It was held that she had become full owner of the property in her possession u/s 14(1) on the coming into force of the Hindu Succession Act, even though previously she was a limited owner.

It was clearly held in the above case that Section 14(2) of the Act is in the nature of a proviso or an exception to Section 14(1) and comes 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 to the property. The Bench consisted of Hon. J.C. Shah, V. Ramaswamy and A.N. Grover, JJ.

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A mention of all the above cases shows that this Court in a long series of cases has taken a consistent view that Section 14(2) of the Act is in the nature of a proviso or an exception to Section 14 and comes 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 to the property; If the case falls under the provisions of Section 14(1) of the Act then the female Hindu shall be held to be full owner of the property and sub-section (2) of Section 14 will only apply where the property is acquired without there being any pre-existing right of the female Hindu in such property. Thus we affirm and reiterate that sub-section (2) of Section 14 will be construed more in the nature of a proviso or an exception to Sub-section (1) of Section 14 of the Act. This view lends support to the object of the section which was to remove the disability on women imposed by law and to achieve a social purpose by bringing about change in the social and economic position of women in Hindu society.In the result we find no force in all the above cases and the same are dismissed with cost.

K. Ramaswamy, J.—...

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Section 14(1) of the Act declares that any property, movable or immovable, possessed by a female Hindu shall be held by her as full owner thereof and not as a limited owner irrespective of the time when the acquisition was made, i.e., whether it was before or after the Act. Undoubtedly as contended by Sri Krishna Murty Iyer, a Hindu male has freedom of testamentary disposition of his property or by contract and Section 14(1) stand an impediment in his way. Freedom of contract would yield place to public policy envisaged above. Its effect must be tested on the envil of socio-economic justice, equality of status and to oversee whether it would subserve the constitutional animation or frustrates. Article 15(3) relieves from the rigour of Article 15(1) and charges the State to make special provision to accord to woman socio-economic equality: The court would, therefore, endeavour to find whether terms of the disposition or clauses in the instruments, will etc. enumerated in Section 14 would permeate the aforestated constitutional conscience to relieve the Hindu female from the Shastric bondage of limited estate. Both Sub-sections (1) and (2) of Section 14 attract the conferment of restricted estate had by a Hindu female under an instrument, i.e. gift, will, decree or order of a Civil Court or an award. Section 14 and the impugned document must be read harmoniously as an integral scheme, The disability attached to Hindu female by Shastric Law was removed by statutory provisions in Hindu Succession Act. Section 14(1) thereof was thought to be a tool to remove disabilities or restrictions imposed by Customary or Shastric Law on Hindu women. Section 14(1) declares in unequivocal terms that the property whether movable or immovable held by a Hindu female acquired either before or after the Act shall be her absolute property, abolishing the limited estate known to Shastric law. Hindu women as a class are declared as class I heirs entitling to intestate succession to a Hindu Male. This Court in Pratap Singh v. Union of India (1985) Suppl. 2 SCR 773 held that Section 14 of the Act does not discriminate on grounds of sex and is intra vires of Article 15(3). The preferential treatment accorded, thereby, was held to be not violative of Arts. 14 and 15(1). Subsection (2) of Section 14 of the Act attempts to denude the object of Sub-section (1) and emasculates its efficacy. It should, therefore, be read as an exception or a proviso to Sub-section (1) of Section 14. The interpretation of the proviso or an exception should not be to allow to eat away the vital veins of full ownership accorded by section (1) of Section 14. when this Court upheld the validity of Section 14(1) on the envil of Article 15(3) what should be the message thus intended to convey? It would mean that the court would endeavour to give full effect to legislative and constitutional vision of socio-economic equality to female citizen by granting fall ownership of property to a Hindu female. As a fact Article 15(3) as a fore runner to common code does animate to make law to accord socio-economic equality to every female citizen of India, irrespective of religion, race cast or region.

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In Kalawatibai Vs. Soiryabai and others, the mother of the parties, a Hindu widow gifted over her widow's estate by gift deed of 1954 to the appellant, one of her daughters. The widow died in 1968, The appellant tiled a suit for injunction, based on gift deed, against the respondent, another sister claiming exclusive right, title and interest in the property and also pleaded adverse possession. The respondent filed a cross suit for partition into two shares and claimed half share pleading that their mother was not in possession of property on the date when the Act came into force. The appellant acquired only limited ownership of their mother and on her death as a reversionary of her father she was entitled to partition. The High Court ultimately upheld the respondent's contention and held that the widow did not acquire absolute estate u/s 14(1). Being a limited owner, what was conveyed by her to the appellant was only a limited estate and the appellant would not get the benefit of full ownership as she herself was not the limited owner under-sec. 14(1). On demise of the mother as revertioner, the respondent was entitled to file the suit for partition. The appellant did not acquire title by adverse possession as she was a co-owner and there was no adverse possession as against the other co-owner unless it was so asserted and acquiesced by the respondent. Therefore, the decree for partition was upheld and the suit for injunction was dismissed. The ratio therein does not assist the appellant.

Thus I hold that the Act revolutionised the status of a Hindu female; used Section 14(1) as a tool to undo past injustice to elevate her to equal status with dignity of person on par with man; extinguished pre-existing limitation of woman's estate, or widow's estate known to Sastric law removed all the fetters to blossom the same into full ownership. The discrimination suffered bv Hindu female under Sastric law was exterminated by legislative fiat. The social change thus envisaged must be endeavoured to be given full vigour, thrust and efficacy. Section 14(1) enlarges the restricted estate into full ownership when the Hindu female has pre-existing right to maintenance etc. Sub.sec. (2) operates when the grant was made for the first time under the document with no pre-existing right. Sub-section (2), therefore, must be read as an exception or a proviso to Sub-section (1). Both the Sub-sections read with the explanation to be pragmatically considered as a constituent integral scheme. The Court would sit in the armed chair of the testator, or its maker summon to its aid the attending circumstances to execute the instrument; the relationship of the parties and to see whether the Hindu female acquired the property with vestige of pre-existing right and the will, gift deed, order, decree or an award of the civil court or in any of the forms known to law was executed in recognition thereof or entitled under the existing law. If the finding is positive her limited estate, though created with restrictive covenants in instrument or an omission to expressly so mentioned in full particulars thereof in the instrument in that regard are of little consequence. Her limited estate gets blossomed into full ownership under-sec. 14(1) with a right to bequeath, gift over, alienation or to deal in any manner recognised by law. If on the other hand the Hindu female acquires for the first time the title therein as a grant with restrictive estate under the instrument with no pre-existing title or right, Sub-section (2) of Section 14 gets attracted and the restrictive covenants contained in the instrument would bind her. She remains to be a limited owner in terms thereof. The subsequent alienee or transferee acquires no higher right thereunder than the legatee etc. The reversioner to the last male holder is not bound by such transfer and is entitled to succeed the estate, on her demise, in terms of the instrument. It is too late in the day to take retrograde step to reopen Tulasamma's ratio.

In Civil Appeal No. 630 of 1981 of Thota Madhav Rao, Sri Narsimhalu, his learned counsel contended that Thota Manikyamma, the respondent, having come into possession and in enjoyment of the lands bequeathed under a will with a vested reminder in the appellant, her rights are circumscribed by the restrictions contained in the will and Section 14(1) does not apply. He also contended that by application of Section 14(1) to the instruments executed anterior to the Act amounts to giving retrospective operation of Section 14(1). We find no substance in either contention. It is settled law that a legatee under a testamentary disposition is bound by the restrictive convenants contained therein. But distinction should be maintained between an ordinary legatee and a legatee/Hindu female coupled with vestige of pre-existing title to the property but with a limited estate known to Shastric law as reflected in the impugned deed etc. Undoubtedly Section 14 is not retroactive in its operation. Devolution of the property under the will would take effect after the demise of the testator and the legatee would be bound by the terms of gift over etc. The stranger legatee cannot take shelter under subsequent change of law to enlarge the operation of restrictive convenant to claim absolute ownership in the property bequeathed to her. But socio-economic amelioration under the Act engulfs an instrument under the sweep of Section 14(1) thereof, it extinguishes the pre-existing limited estate or restrictive condition and confer absolute and full ownership of the property possessed by a Hindu female as on the date when the Act had come into force, namely, June 17,1956. The courts are not giving retrospective operation to Section 14(1) or to the instrument. The courts only would be applying the law to the facts found as on the date when the question arose to find whether legatee has preexisting vestige of title under law; and the nature of possession of the property held by her and whether the legatee would get the benefit of Section 14(1) of the Act. There need be no express recital even in the will of the enjoyment of the property devised under the will in lieu of maintenance as a limited owner for her life. Even if so mentioned, it would be a reflection or restatement of the law existing as in 1932 when the will was executed. The respondent, admittedly, being a widow of the testator who, under Shastric law, was obligated to provide maintenance to his wife, and it being personal obligation, the property bequeathed was in lieu of maintenance for her life. She was in enjoyment of the property and the beneficial interest therein stood vested in her. As per existing law as in 1932 the widow as a legatee was entitled to widow's estate and she remained in possession on the date of the Act came into force and was in enjoyment of the income derived therefrom for her life. No one had a right to interdict it. The restrictive covenant, therefore, does not stand an impediment to Section 14(1) to have full play to extinguish the same and enlarge the limited estate of widow into an absolute ownership. The restrictions contained in the will, though falls both under Sub-section (2) as well as Sub-section (1), ofs. 14, the right to maintenance being a pre-existing right over property "red ad rem" Section 14(1) would apply. The testamentary succession with a restrictive conditions in the will was obliterated. She became an absolute owner on or after June 17, 1956. Accordingly I have no hesitation to hold that, though the will created a restrictive covenant, Section 14(2) does not apply. Section 14(!) enlarged the widow's limited estate held by Manikyamma into an absolute ownership as full owner with a right to disposition by testamentary instrument or otherwise. As regards the claim in SLP No. 2113 of 1980 is concerned, admittedly the decree was granted with restrictive covenant to remain in possession of a portion of the house and enjoyment for life and by operation of the ratio in Tulasiamma's case the restrictive covenant has enlarged into absolute estate. The appeal and special leave petitions are accordingly dismissed with costs.