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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 375 OF 2007

Jupudy Pardha Sarathy  Appellant(s)

versus

Pentapati Rama Krishna and others Respondent(s)

J U D G M E N T

M.Y. Eqbal, J.:

This  appeal  by  special  leave  is  directed  against  order

dated 21.9.2006 passed by learned Single Judge of the High

Court of Andhra Pradesh, who allowed the appeal preferred by

Defendant no.1 and set aside the judgment and decree of the

trial Court in the original suit preferred by the appellant.  

2. The only question that needs consideration in this appeal

is  as  to  whether  the  High  Court  is  correct  in  law  in

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interpreting  the  provisions  of  Section  14  of  the  Hindu

Succession  Act,  1956  (for  short  'the  Act')  in  arriving  at  a

conclusion that the widow of the deceased P. Venkata Subba

Rao  acquired  an  absolute  interest  in  the  property  by  the

operation of Section 14 of the Act.

3. The  undisputed  facts  are  that  the  said  suit  property

originally  belonged to  one P.  Venkata  Subba Rao,  who had

three wives.  Only the second wife was blessed with two sons

and  one  daughter,  including  defendant-Narasimha  Rao.

Veeraraghavamma was the third wife of the said  P. Venkata

Subba Rao but  she  did  not  have  any issues.    P.  Venkata

Subba Rao  executed a Will in the year 1920(Exh.A2) in favour

of his 3rd wife  Veeraghavamma who in turn executed a Will

dated  14.7.1971  (Exh.B1)  in  favour  of  defendant-Pentapati

Subba Rao, and thereafter, she died in 1976.  The case of the

defendant is that the said P. Narasimha Rao has no right to

transfer the suit properties in favour of the plaintiff.

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4. The plaintiff’s-appellant’s case is that he purchased the

suit property from one P. Narasimha Roa who was having a

vested remainder in respect of the said suit property on the

expiry  of  life  estate  of  testator’s  wife  Veeraghavamma.

According  to  the  plaintiff-appellant,  during  the  life  time  of

Veeraghavamma  she  enjoyed  the  properties  and  after  her

death the property devolved upon the vendors of the plaintiff.

5. The trial  court  noted  the  undisputed  case  of  both  the

parties that Will  (Exh.A2)  was executed by late P. Venkata

Subba Rao in favour of Veeraghavamma but she had limited

interest  to  enjoy  the  property  during  her  life  time  and

thereafter  the  remainder  vested  with  P.  Narasimha  Rao  to

enjoy the said property as absolute owner after the death of

Veeraghavamma.  However, the trial court held that life estate

of  Veeraghavamma under  the  Will  did not  become enlarged

into absolute  estate under Section 14(1) of  the Act and the

vested remainder in favour of P. Narasimha Rao did not get

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extinguished  in  respect  of  the  scheduled  properties.

Accordingly, the suit was decreed.

6. Aggrieved  by  the  decision  of  the  trial  court  defendant

no.1  -  P.  Subba  Rao  preferred  an  appeal  before  the  High

Court.  The High Court allowed the appeal and set aside the

judgment  and  decree  of  the  trial  court  holding  that

Veeraghavamma  became  the  absolute  owner  of  the  suit

property by virtue of Section 14(1) and she had every right to

bequeath the said property in favour of  P. Subba Rao, the first

defendant under Exhibits B1 and B2.    

7. Hence,  the  present  appeal  by  special  leave  by  the

plaintiff.  During the pendency of the appeal before the High

Court, first defendant died and his legal representatives were

brought on record and are arrayed in the present appeal as

respondent nos.1 to 3.  Respondent no. 4 is defendant no.3,

and  Legal  representatives  of  Respondent  no.5,  who  was

defendant no.4, were brought on record after his death during

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pendency of this appeal.  Rest respondents were brought on

record as legal representatives of second defendant, who died

during  pendency  of  the  suit.   Since  respondent  no.4  has

vacated the suit shop and delivered possession to the plaintiff

on 6.7.2006, appellant has moved before us an application for

deletion of respondent no.4 from the array of  parties.   It  is

ordered accordingly.  

8. Before we decide the question involved in this appeal we

would  like  to  reproduce  the  contents  of  the  Will  (Exh.A1)

which is as under:-

“I,  Pularvathi  Venkata  Subba  Rao,  S/o  late Pularvathy  Venkamma  Vysya,  Business,  R/o Rajahmundhry, have executed the Will dt. 24.08.1920 with good consciousness and wisdom.

I am now approximately 53 years.  Now I have less physical strength and consequently I  may not survive for longer  period,  hence  I  have  proposed  to  give  all  my properties both movable and immovable mentioned in the schedule below by way of this Will.

My first wife died issueless.  My second wife got two sons  by  name  Manikyaro  and  Narasimha  Rao  and  a daughter by name Nagarathnamma.  My 2nd wife also died. Thereafter I married Veeraghavamma my third wife and she is alive.  She has not begotten any children.  I have house property  bearing  Municipal   D.No.6/875,  another  house bearing  D.No.6/876  and  also  5  shop  rooms  abutting  to them  with  vacant  house  site  covered  by  D.No.6/870  in Innespeta,  Rajahmundry  Village,  Rajahmundry  Sub

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Registry, E.G. Dist.I have wet land of extent ac15.17 cents in  Rustumbada  village  Naraspuram  Sub  Registry, Naraspuram Taluk.  The said landed property was in the name of my 2nd wife and after her life time my two sons mentioned above got the same mutated it in their names.

I  have a policy  bearing  No.  23232 in  Oriental  Life Insurance Company and I have to receive monies from the said policy and also silver, gold, brass articles house hold utensils Beeruva, Furniture, iron safe etc., I have made the following dispositions which are to take place after my life time.

My third wife Veeraghavamma shall enjoy for life the tiled house with site and compound wall and with half right in the well covered by municipal D.No.6/875, Rajahmundry and after life time of my wife my 2nd son Narasimha Rao shall have the property with absolute rights such as gift, sale etc.  My second son Narasimha Rao shall have absolute rights such as gift  and sale in respect  of the tiled house bearing D/no.6/876 and the 5 shop rooms covered    by D.No.6/870 and the sit abutting the above two properties with Chavidi and one Big latrine out of the two and that my wife Veeraraghavamma shall enjoy for life the small latrine covered  by  D.No.6/870  and  after  her  life  time  my  son Narasimha Rao shall have the property with absolute right. The said Veeraraghavamma is entitled to fetch water from the well situated in back yard of house bearing D.No.6/870. My eldest so Maniyarao shall have absolute rights such as gift and sale etc., in respect of          ac 15.17 cents of Zeroyiti  wet  land  of  Rustumbada  Village  Narasapuram Taluk  and  my  eldest  son  Maniyarao  shall  pay  Rs.650/- which  I  am  liable  to  pay  to  her  and  thus  either Nagarathnamma or any one has got no right in the said property.

The amount receivable from the Insurance Company referred  above  shall  be  recovered  and  my  two  sons, daughter and my wife,  all  the four shall  share the same equally and that the ornaments lying with them shall take the  same  absolutely  and  that  one  shall  not  claim  or demand for any oweties against another. (Emphasis given)

This  Will  I  have  executed  with  full  and  good consciousness and the same shall come into force after my life time.  The properties mentioned in this Will are all my

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self  acquired  properties  and  I  did  not  get  any  ancestral properties.

I reserve my right to change the contents of the Will during  my life time.

Signed Pularvati Venkata Subba Rao

Attesting Witnesses

Modali Subbarayudu Yendi Surayya

Scribed by Pularvati Venkata Subba Rao With his own handwriting

The contents of the said will shall come into force after my life time.

Signed by Pularvati Venkata Subbarao”

9. The trial court although noticed the decision of this

Court  in  the  case  of   V.  Tulasamma and others vs.

Sesha Reddy (dead)  by Lrs.  (AIR 1977 SC 1944) but

held that in that case on the basis of  compromise the

Hindu  widow  was  allotted  immoveable  properties

expressly in lieu of her maintenance, and hence, Section

14(1)  of  the  Act  was  readily  applicable  to  that  case.

Whereas,  the trial court held that the decision of this

Court in the case of  Mst Karmi vs. Amru & Ors., (AIR

1971  SC  745), is  applicable because  in  that  case  the

Hindu widow succeeded the properties of her husband on

the strength of Will where under she was given life estate

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in the properties. For better appreciation paragraphs 25,

26 and 27 of the trial court’s judgment are quoted thus:-

“25.  The  first  defendant’s  counsel  placed  heavy reliance   on  the  decision  reported  in  Palchuri Hanumayamma vs. Tadikamalla Kotilingam (1986 (1) ALT.546), it is only in that decision it was held that it is  not  necessary  that  the  will  or  other  documents under  which  property  is  given  to  a  Hindu  female should expressly specify that the property is given to a Hindu  female  should   expressly  specify  that  the property is a given in lieu of a pre-existing right  or right of maintenance and that it is sufficient if only a right was in existence in favour of the Hindu female on the date when the document  was executed.   It  is  a judgment rendered by a single judge of the High Court. It is a case where the High Court was considering the bequest of property to a Hindu widow under a will as life estate.

26. In  Vaddeboyina  Tulasamma  vs.  Vaddeboyina Sesha  Reddi  (A.I.R.  1977  SC  1944)  a  Hindu  widow obtained  a  decree  for  maintenance  against  the brothers of her deceased husband and was executing the said decree  for  maintenance.   During that  time, the  Hindu Widow and the  brothers  of  her  deceased husband entered into a compromise where under the Hindu widow was allotted immovable properties to be enjoyed only as limited owner power of alienation. It was  a  case  where  the  Hindu  Widow  was  allotted properties  expressly  in lieu of  her  maintenance  and satisfaction  of  her  maintenance  decree.   Therefore, Sec. 14 (1) of the Act is readily applicable to that case. On the  other  hand,  in the decision reported in Mst Karmi vs. Amro ( A.I.R. 1971 SC 745) a Hindu widow succeeded to the properties  of  her husband on  the strength of a Will where under she was given life estate in  the  properties.   In  those  circumstances  the Supreme  Court  held  that  the  Hindu  widow  having succeeded  to  the  properties  of  her  husband  on  the strength of that will cannot claim any rights in these

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properties over and above that given to her under that will and that the life estate given to her under the will cannot  become  an  absolute  estate  under  the provisions  of  the  Hindu  Succession  Act.   It  was  a decision rendered by three Judges of Supreme Court. This  decision was not  referred to in the subsequent decision  of  the  year  1977  referred  to  above.   The decision of the year 1977 was also rendered by three judges of the Supreme Court.  When the latter decision of the Supreme Court is in all fours with the facts in the case on hand, the former decision of the Supreme Court of the year 1977 cannot be applied to the facts of the present case.

27. In Smt. Culwant Kaur vs. Mohinder Singh (A.I.R. 1987 SC 2251) the provisions of Section 14(1) of the Act  were  applied  because  it  was  a  case  where  the Hindu female was put in possession of  the property expressly  in pursuance to  and in  recognition of  the maintenance  in  her.   Similarly,  in  the  decision reported  in  Gurdip  Singh  vs.  Amar  Singh  (1991  (1) L.W.15) the Supreme Court applied the provisions  of Section  14(1)  of  the  Act  where  the  wife  acquired property by way of gift from her husband explicitly in lieu  of  maintenance.  In  Bai  Vajia  vs.  Thakorbhai Chelabhai (A.I.R. 1979 SC 993) also the Hindu widow obtained  possession  of  the  property  in  default  of payment  of  maintenance  to  her.   So,  the  Supreme Court applied the provisions of Section 14(1) of the Act to that case.”

10. On the basis of  the ratio decided by this Court in the

decision quoted hereinabove and also other decisions of  the

High  Court,  the  trial  court  held  that  the  life  estate  of

Veeraghavamma under  Exhibit  A-2  will  not  become enlarge

into  absolute  estate  under  Section  14(1)  of  the  Hindu

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Succession  Act  and  did  not  extinguish  vested  remainders

interest of Narasimha Rao in the suit property.  

11. In  appeal,  the  High  Court,  after  discussing  the  ratio

decided by this Court in the decisions noted by the trial court

and also other decisions of this Court, reversed the finding of

the trial court and held that the case falls under Section 14(1)

of the Act and Veeraghavamma became the absolute owner of

the suit property and she had every right to bequeath the said

property in favour of the first defendant P. Subba Rao under

Exhibits B-1 and B-2.  The High Court held that:-

“In view of the aforesaid authoritative judgment of Hon'ble Justice Jagannadha Rao following several judgments of the Apex Court, I am of the opinion that the reasoning given by the trial Court, that as there is no specific wording in the instrument Ex.A2 that life estate has been given in lieu of a pre-existing right or right of maintenance the same do not become enlarged into absolute estate, is not relevant and is quite contrary to the aforesaid judgment.

Merely  because  Veeraraghavamma  was  appointed  as  the guardian of P. Narasimha Rao - vendor of the plaintiff  it could  not  be  said  that  Veeraraghavamma  had  no pre-existing right or right of maintenance in respect of the property in which a limited interest had been created in her favour.  As the vendor of plaintiff was also having properties other than the property in question, after the death of his

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natural  father,  Veeraraghavamma  was  appointed  as  his guardian.   Immediately  after  the  vendor  of  the  plaintiff attained majority the guardianship was discharged and he used to manage his own movable and immovable properties individually.  It cannot be said that for the first time the life estate  has  been  created  under  Ex.A2  Will  in  favour  of Veeraraghavamma,  as  undoubtedly,  she  was  having  a pre-existing  right  to  be  maintained  by  her  husband, therefore,  it  is  the duty of  her  husband to maintain  her during her lifetime.  Though no specific words have been mentioned  in  Ex.A2 that  in  lieu  of  maintenance  the  life estate has been created,  under Section 14(1) in whatever form  a  limited  interest  is  created  in  favour  of  a  Hindu female, who is having a pre-existing right of maintenance, it becomes absolute right after 1956 Act came into force.

As Veeraraghavamma became absolute owner by virtue of Section 14(1) of the Act she had right to bequeath the said property in favour of the first defendant under Exs.B1 and B2.   Therefore,  as the vested remainder  of  P.  Narasimha Rao got nullified, he had no right or authority to sell the said  property  under  Ex.A1  sale  deed  in  favour  of  the plaintiff.   As  the  limited  interest  of  Veeraraghavamma blossomed  into  absolute  right,  bequeathing  the  said property in favour of the first defendant under Exs.B1 and B2 is  legal  and valid.  In  view of  the aforesaid  facts  and circumstances  of  the  case,  I  am of  the  opinion  that  the limited interest to enjoy the property during the lifetime of Veeraraghavamma  blossomed  into  an  absolute  right  in accordance with Section 14(1), after the Hindu Succession Act, 1956 came into force and the vested remainder created in favour of the vendor of the plaintiff is nullified.”

12. Mr. K.V. Viswanathan, learned senior advocate appearing

for the appellant, confined his argument to the question of law

as  to  whether  the  High Court  erred in  law in  holding  that

Section  14(1)  of  the  Act  will  be  attracted  and  the  widow

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Veeraghavamma  have  acquired  absolute  interest  in  the

properties.  Learned counsel made the following submissions:-

“(i) Section 14(1) cannot be interpreted to mean that each and every Will granting a limited/life interest in a property to a widow is deemed/assumed to be in lieu of  her  maintenance.   If  the  testator  in  his  Will specifically  provides  that  he  is  granting   only  life interest in the property to his widow, his right to limit his  widow’s  right  in  the  property  is  recognized  by Section  14(2)  of  the  Hindu  Succession  Act,  1956. Further, the testator’s right to dispose off his property by will or other testamentary disposition is recognized by  Section  30  of  the  Hindu  Succession  Act,  1956. Therefore, Section 14(1) of the Hindu Succession Act, 1956 cannot be interpreted in a manner that renders Section 14(2) and Section 30 of the same Act otiose.

(ii) In  Mst. Karmi vs.  Amru & Ors.  (1972)4 SCC 86), a 3-Judge Bench  of this Court held to the effect that a widow who succeeded  to the property of her deceased husband on the strength of his will cannot claim  any  rights  in  the  property  other  than  those conferred by the  will..   “The  life  estate  given  to  her under  the  Will  cannot  become  an  absolute  estate under the provisions of the Hindu Succession Act”  

(iii) In V. Tulsamma vs. Sesha Reddy (1977) 3 SCC 99,  this  Court  clarified  the  difference  between sub-section  (1)  and  (2)  of  Section  14,  thereby restricting the right of a testator  to grant a limited life interest  in a  property  to  his  wife.   Learned counsel referred para 62 of the judgment in Tulsamma case.

(iv) V.  Tulsamma’s case  involved  a  compromise decree arising out of decree for maintenance obtained by the widow against her husband’s brother in a case of intestate succession.  It did not deal with situations of  testamentary  succession.   Therefore,  strictly  on facts, it may not be applicable to cases of testamentary succession.  However, in terms of law declared therein,

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a doubt may arise whether Section 14(1) may apply to every instance of a Will granting a limited/life interest in  a  property  to  the  widow on  the  ground that  the widow has a pre-existing right of maintenance.  

(v) This doubt was resolved by the Supreme Court in Sadhu Singh vs. Gurdwara Sahib Narike, (2006) 8 SCC 75, where it was held at paras 13 and 14 that the right under section 30 of the Hindu Succession Act, 1956  cannot  be  rendered  otiose  by  a  wide interpretation  of  Section  14(1)  and  that  these  two provisions have to be balanced.

(vi) The above view has been subsequently affirmed by this Court.  In  Sharad Subramanayan vs. Soumi Mazumdar & Ors. (2006) 8 SCC 91 (at para 20), this Court upheld the contention of the learned counsel for the respondents therein that there was no proposition of  law  that  all  dispositions  of  property  made  to  a female  Hindu  were  necessarily  in  recognition  of  her right  to  maintenance  whether  under  the  Shastric Hindu law or under the statutory  law.

(vii) Learned counsel referred  para 14 in the case of Shivdev Kaur vs. R.S. Grewal.

(viii) The  position  of  law  as  recorded  in  Sadhu Singh’s  case and  followed  subsequently,  therefore, appears to be that the question as to whether Section 14(1) applies to a Will granting life interest to a widow hinges on the finding by the Court that the grant was in  lieu  of  maintenance.   This  leads  to  the  second arguments.”

13. Mr. Viswanathan, learned senior counsel. submitted the

fact that the life interest in property granted to the widow by

way of a Will was actually in lieu of her maintenance needs to

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be specifically pleaded, proved and decided by the Court based

on examination of evidence and material on record.

14. Further, referring paragraph nos. 17, 22 and 24 of the

decision in  G. Rama vs. TG Seshagiri Rao, (2008) 12 SCC

392, learned counsel submitted that issues are required to be

framed and evidence has to be led to specifically show that the

Will granted interest in property in lieu of maintenance.

15. It is well settled that under the Hindu Law, the husband

has got a personal obligation to maintain his wife and if he is

possessed of properties then his wife is entitled to a right to be

maintained out of such properties.  It is equally well settled

that the claim of Hindu widow to be maintained is not a mere

formality which is to be exercised as a matter of concession,

grace or  gratis  but is  a valuable,  spiritual  and moral  right.

From the judicial pronouncement, the right of a widow to be

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maintained, although does not create a charge on the property

of her husband but certainly the widow can enforce her right

by moving the Court and for passing a decree for maintenance

by creating a charge.

16. The  Hindu  Married  Women’s  Right  to  Separate,

Maintenance  and  Residence  Act,  1946  was  enacted  giving

statutory recognition of such right and, therefore, there can be

no doubt that the right to maintenance is a pre-existing right.

17. In  V.  Tulsamma  and  others  vs.  Sesha  Reddy,  AIR

1977  SC  1944, three  Judges  Bench  of  this  Court  has

elaborately  considered  the  right  of  a  Hindu  woman  to

maintenance which is a pre-existing right.  My Lord Justice

Fazal Ali writing the judgment firstly observed:-

“Thus  on  a  careful  consideration  and detailed analysis of  the authorities mentioned above and the Shastric  Hindu  law  on  the  subject,  the  following propositions emerge with respect to the incidents and

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characteristics  of  a  Hindu  woman’s  right  to maintenance:

(1) that  a  Hindu  woman’s  right  to maintenance  is  a  personal  obligation  so  far  as  the husband is concerned, and it is his duty to maintain her  even if  he has no property.  If  the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow;

(2) though the widow’s right to maintenance is  not  a  right,  to  property  but  it  is  undoubtedly  a pre-existing right in property i.e. it is a jus ad rem not jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the property  either  by  an  agreement  or  by  obtaining  a decree from the civil court;

(3) that the right of maintenance is a matter of moment and is of such importance that even if the joint property is sold and the purchaser has notice of the  widow’s  right  to  maintenance,  the  purchaser  is legally bound to provide for her maintenance;

(4) that  the  right  to  maintenance  is undoubtedly a pre-existing right which existed in the Hindu law long before the passing of the Act of 1937 or the Act of 1946, and is, therefore, a pre-existing right;

(5) that the right to maintenance flows from the  social  and  temporal  relationship  between  the husband  and  the  wife  by  virtue  of  which  the  wife becomes  a  sort  of  co-owner  in  the  property  of  her husband, though her co-ownership is of a subordinate nature; and

(6) that where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchases the same is in a position to make due arrangements for her maintenance.”

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18. Interpreting the provisions of Section 14 of the Hindu  

Succession Act, their Lordships observed: -

“In the light of the above decisions of this Court the following principles appear to be clear:

“(1) that  the  provisions  of  Section  14  of  the 1956  Act  must  be  liberally  construed  in  order  to advance the object of the Act which is to enlarge the limited  interest  possessed  by  a  Hindu  widow which was in consonance with the changing temper of  the times;

(2) it is manifestly clear that sub-section (2) of Section 14 does not refer to any transfer which merely recognises  a  pre-existing  right  without  creating  or conferring a new title on the widow. This was clearly held by this Court in Badri Pershad case.

(3) that  the  Act  of  1956  has  made revolutionary and far-reaching changes in the Hindu society and every attempt should be made to carry out the spirit of the Act which has undoubtedly supplied a long felt need and tried to do away with the invidious distinction  between  a  Hindu  male  and  female  in matters of intestate succession;

(4) that sub-section (2) of Section 14 is merely a proviso to sub-section (1) of Section 14 and has to be interpreted as a proviso and not in a manner so as to destroy the effect of the main provision.”

19. Lastly, His Lordship after elaborate consideration of the

law  and  different  authorities  came  to  the  following

conclusions:-

“We  would  now  like  to  summarise  the  legal conclusions  which  we  have  reached  after  an exhaustive considerations of the authorities mentioned above on the question of law involved in this appeal as

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to the interpretation of  Sections 14(1)  and (2)  of the Act of 1956. These conclusions may be stated thus: “(1) The Hindu female’s right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against  property  which  flows  from  the  spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu law and  has  been  strongly  stressed  even  by  the  earlier Hindu  jurists  starting  from  Yajnavalkya  to  Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has  property,  the  female  has  the  legal  right  to  be maintained therefrom.  If  a  charge is  created for  the maintenance  of  a  female,  the  said  right  becomes  a legally  enforceable  one.  At  any  rate,  even  without  a charge  the  claim  for  maintenance  is  doubtless  a pre-existing  right  so  that  any  transfer  declaring  or recognising such a right does not confer any new title but  merely  endorses  or  confirms  the  pre-existing rights. (2)  Section  14(1)  and  the  Explanation  thereto  have been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic  ends  sought  to  be  achieved  by  this long needed legislation. (3) Sub-section (2) of Section 14 is in the nature of a proviso and has a field of its own without interfering with  the  operation  of  Section  14(1)  materially.  The proviso should not be construed in a manner so as to destroy  the  effect  of  the  main  provision  or  the protection granted by Section 14(1) or in a way so as to become totally inconsistent with the main provision. (4)  Sub-section  (2)  of  Section  14  applies  to instruments, decrees, awards, gifts, etc. which create independent and new titles in favour of the females for the  first  time  and  has  no  application  where  the instrument  concerned  merely  seeks  to  confirm, endorse,  declare  or  recognise  pre-existing  rights.  In such cases a restricted estate in favour of a female is

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legally permissible and Section 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the female’s limited interest would automatically  be  enlarged  into  an  absolute  one  by force  of  Section  14(1)  and the  restrictions  placed,  if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-section (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee. (5) The use of express terms like ‘property acquired by a  female  Hindu  at  a  partition’,  ‘or  in  lieu  of maintenance’, ‘or arrears of maintenance’, etc. in the Explanation to Section 14(1) clearly makes sub-section (2)  inapplicable  to these categories which have been expressly excepted from the operation of sub-section (2). (6) 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 property 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 settled 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. (7)  That the words ‘restricted estate’  used in Section 14(2)  are wider than limited interest  as indicated in Section  14(1)  and  they  include  not  only  limited interest, but also any other kind of limitation that may be placed on the transferee.”

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20. Mr. Vishwanathan put heavy reliance on the decision of

this Court in the case of  Mst. Karmi vs. Amru (1972 Vol. 4

SCC 86).  In our considered opinion, the ratio decided in that

case will not apply in the facts of the present case.  In Mst.

Karmi case (Supra),  one Jaimal,  who was the owner of  the

property, had executed a Will directing that on his death, his

entire estate would devolve upon his widow Nihali during her

life  and  thereafter,  the  same  would  devolve  upon  his

collaterals  on  the  death  of  Jaimal.   The  properties  were

mutated in the name of Nihali who eventually died in 1960.

On her  death,  the collaterals  claimed the  properties  on the

basis of Will, but the appellant claimed the properties as their

sole  legatee  from Nihali  under  her  Will  of  1958.   On these

facts,  it  was  held  that  Nihali  having  succeeded  to  the

properties of Jaimal on the strength of Will cannot claim any

right in those properties over and above that was given to her

under the Will.  The Court observed that the life estate given to

her under the Will cannot become an absolute estate under

the provisions of Hindu Succession Act, 1956.

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21. The facts in Karmi’s case (supra) and that of the present

case are fully distinguishable.   In the instant case, the Will

was executed in 1920 in which Subba Rao has mentioned that

his  first  wife  died,  the  second  wife  got  two  sons  and  one

daughter. Thereafter, second wife also died.  He, then, married

to  Veeraraghavamma  as  a  third  wife,  who  is  alive.   The

executant of the Will have also mentioned the description of

the properties owned by him.  He, very specifically mentioned

in the Will that his third wife Veeraraghavamma shall enjoy for

life one tiled house situated in the compound wall.  For that

enjoyment, it was also mentioned in the Will that the widow

Veeraraghavamma shall  also be entitled to fetch water from

the well situated in the backyard of a different house.  In other

words, the executant of the Will  made arrangements for his

third  wife  to  maintain  her  enjoyment  in  the  suit  schedule

property  till  her  life.   The  intention  of  the  executant  is

therefore clear that he gave the suit schedule property to his

third wife Veeraraghavamma in order to hold and enjoy the

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suit property for her maintenance during her lifetime.  It is not

a case like Karmi case that by executing a Will, the executant

directed  that  his  entire  estate  will  devolve  upon  his  widow

Veeraraghavamma.  

22. A three Judges Bench of this Court in the case of  R.B.

S.S. Munnalal and Others  vs. S.S. Rajkumar & Others,

AIR 1962 SC 1493, while interpreting the provisions of Section

14(1) of the Act observed:-  

“16. By Section 14(1) the legislature sought to convert the interest of a Hindu female which under the Sastric Hindu  law  would  have  been  regarded  as  a  limited interest  into  an  absolute  interest  and  by  the Explanation thereto gave to the expression “property” the  widest  connotation.  The  expression  includes property acquired by a Hindu female 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. By Section 14(1) manifestly it is intended to convert the interest which a Hindu female has in property however restricted the nature of that interest under  the  Sastric  Hindu  law  may  be  into  absolute estate. Pratapmull case undoubtedly laid down that till actual division of the share declared in her favour by a preliminary  decree  for  partition  of  the  joint  family estate a Hindu wife or mother, was not recognised as owner,  but  that  rule  cannot  in  our  judgment  apply after the enactment of the Hindu Succession Act. The Act  is  a  codifying  enactment,  and  has  made  far

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reaching changes in the structure of the Hindu law of inheritance,  and  succession.  The  Act  confers  upon Hindu females full  rights of inheritance,  and sweeps away  the  traditional  limitations  on  her  powers  of dispositions which were regarded under the Hindu law as  inherent  in  her  estate.  She  is  under  the  Act regarded  as  a  fresh  stock  of  descent  in  respect  of property possessed by her at the time of her death. It is  true that under the Sastric Hindu law, the share given to a Hindu widow on partition between her sons or  her  grandsons  was  in  lieu  other  right  to maintenance. She was not entitled to claim partition. But  the Legislature by enacting the Hindu Womens' Right  to  Property  Act,  1937  made  a  significant departure in that  branch of  the law; the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned she became owner in severalty of her share, subject of course to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil. It cannot be assumed having  regard  to  this  development  that  in  enacting Section 14 of the Hindu Succession Act, the legislature merely intended to declare the rule enunciated by the Privy Council in PratapmuIl case. Section 4 of the Act gives an overriding effect to the provisions of the Act.”   

23. Reference may also be made to  a three Judges Bench

decision of this Court in the case of Nirmal Chand vs. Vidya

Wanti,  (1969)  3  SCC  628. In  that  case,  by  a  registered

document of partition, the related right was given to the widow

- the user of the land with the condition that she will have no

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right to alienate in any manner. This Court holding that the

case falls under Section 14(1) of the Act held as under:-

“6.  If  Subhrai  Bai  was  entitled  to  a  share  in  her husband’s properties then the suit properties must be held to have been allotted to her in accordance with law. As the law then stood she had only a life interest in the properties taken by her. Therefore the recital in the deed in question that she would have only a life interest  in  the  properties  allotted  to  her  share  is merely recording the true legal position. Hence it is not possible  to  conclude  that  the  properties  in  question were  given  to  her  subject  to  the  condition  of  her enjoying it for a life time. Therefore the trial court as well as the first appellate court were right in holding that  the facts  of  the case do not  fall  within Section 14(2)  of  the  Hindu  Succession  Act,  1956. Consequently Subhrai Bai must be held to have had an  absolute  right  in  the  suit  properties,  in  view  of Section 14(1) of the Hindu Succession Act.”

24. In  the  case  of  Thota  Sesharathamma  vs.  Thota

Manikyamma, (1991) 4 SCC 312, life estate was granted to a

Hindu women by a Will as a limited owner and the grant was

in recognition of pre-existing right.  Following the ratio decided

in Tulasamma’s case, their Lordships held that the decision

in  Mst. Karmi  cannot be considered as an authority on the

ambit of Section 14(1) and (2) of the Act.  The Court held:-

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“9. 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. 10. The case of Mst Karmi v. Amru on which a reliance has  now  been  placed  by  learned  counsel  for  the appellant and petitioners was also decided by a bench of three Judges Hon. J.C. Shah, K.S. Hegde and A.N. Grover, JJ. It may be noted that two Hon’ble Judges, namely, J.C. Shah and A.N. Grover were common to both the cases. In Mst Karmi v. Amru, one Jaimal died in  1938  leaving  his  wife  Nihali.  His  son  Ditta pre-deceased him. Appellant in the above case was the daughter of Ditta and the respondents were collaterals of Jaimal. Jaimal first executed a will dated December 18,  1935 and by a subsequent will  dated November 13, 1937 revoked the first will. By the second will a life estate was given to Nihali and thereafter the property was made to devolve on Bhagtu and Amru collaterals. On  the  death  of  Jaimal  in  1938,  properties  were mutated in the name of Nihali. Nihali died in 1960/61. The appellant Mst Karmi claimed right on the basis of a will dated April 25, 1958 executed by Nihali in her favour. It was held 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. Thereafter, the appellant cannot claim title to the properties on the basis of the will executed by  the  widow  Nihali  in  her  favour.  It  is  a  short judgment  without  adverting  to  any  provisions  of Section 14(1) or 14(2) of the Act. The judgment neither makes  any  mention  of  any  argument  raised  in  this regard nor there is any mention of the earlier decision in  Badri Pershad v.  Smt Kanso Devi. The decision in Mst Karmi cannot be considered as an authority on the ambit and scope of Section 14(1) and (2) of the Act.”

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25. Reference  may  also  be  made  to  the  decision  of  three

Judges Bench of this Court in the case of  Shakuntala Devi

vs.  Kamla and Others,  (2005) 5 SCC 390, where a Hindu

wife was bequeathed life interest for maintenance by Will with

the condition that she would not have power to alienate the

same in any manner.  As per the Will, after death of the wife,

the property was to revert back to his daughter as an absolute

owner.    On  this  fact  their  Lordships  following  the  ratio

decided in  Tulasamma’s case (supra) held that by virtue of

Section 14(1) a limited right given to the wife under the Will

got enlarged to an absolute right in the suit property.

26. Mr. K.Ramamurty, learned senior counsel appearing for

the  respondent, also relied upon the decision in the case of

Santosh  and  Others  vs.  Saraswathibai  and  Another,

(2008) 1 SCC 465, Subhan Rao and Others vs. Parvathi Bai

and Others, (2010) 10 SCC 235 and Sri Ramakrishna Mutt

vs. M. Maheswaran and Others, (2011) 1 SCC 68.

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27.  In  Santosh’s case  (supra),  this  Court  followed  the

decision given in  Nazar Singh’s case, (1996) 1 SCC 35, and

held that the pre-existing right of wife was crystallized and her

limited interest became an absolute interest in the property

possessed by her in lieu of maintenance.

28.  A similar  question arose  for  consideration before  this

Court  in  Subhan Rao case (supra),  where a portion of  suit

property  was given to the plaintiff-wife for  her maintenance

subject to restriction that she will not alienate the land which

was  given  to  her  maintenance.   The  question  arose  as  to

whether by virtue of Section 14(1) of the Act she became the

owner  of  the  suit  property.   Considering  all  the  earlier

decisions of this Court, their Lordships held that by virtue of

Section 14(1) of the Act, the pre-existing right in lieu of her

right to maintenance transformed into absolute estate.

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29. In the case of Nazar Singh and Others vs. Jagjit Kaur

and  Others, (1996)  1  SCC  35,  this  Court  following  the

decision in Tulasamma’s case held as under:-

“9. Section 14 and the respective scope and ambit of sub-sections (1) and (2) has been the subject-matter of a  number  of  decisions  of  this  Court,  the  most important of which is the decision in V. Tulasamma v. Sesha  Reddy.  The  principles  enunciated  in  this decision have been reiterated in a number of decisions later but have never been departed from. According to this  decision,  sub-section  (2)  is  confined  to  cases where property is acquired by a female Hindu for the first  time  as  a  grant  without  any  pre-existing  right under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. It has also been held that where the property is  acquired  by  a  Hindu  female  in  lieu  of  right  of maintenance inter alia, it is in virtue of a pre-existing right and such an acquisition would not be within the scope  and  ambit  of  sub-section  (2)  even  if  the instrument,  decree,  order  or  award  allotting  the property  to  her  prescribes  a  restricted estate  in the property. Applying this principle, it must be held that the suit lands, which were given to Harmel Kaur by Gurdial Singh in lieu of her maintenance, were held by Harmel Kaur as full owner thereof and not as a limited owner  notwithstanding  the  several  restrictive covenants  accompany-ing  the  grant.  [Also  see  the recent decision of this Court in  Mangat Mal v.  Punni Devi where a right  to residence in a house property was  held  to  attract  sub-section  (1)  of  Section  14 notwithstanding  the  fact  that  the  grant  expressly conferred only a limited estate upon her.] According to sub-section (1), where any property is given to a female Hindu  in  lieu  of  her  maintenance  before  the commencement  of  the  Hindu  Succession  Act,  such property becomes the absolute property of such female Hindu on the commencement of the Act provided the said property was ‘possessed’ by her. Where, however,

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the property is  given to  a female Hindu towards her maintenance  after  the commencement  of  the Act,  she becomes the absolute owner thereof the moment she is placed in  possession  of  the  said  property  (unless,  of course, she is already in possession) notwithstanding the  limitations  and  restrictions  contained  in  the instrument, grant or award whereunder the property is given to her. This proposition follows from the words in sub-section (1), which insofar as is relevant read: “Any property  possessed  by  a  female  Hindu  … after  the commencement of this Act shall be held by her as full owner  and not  as a  limited owner.”  In other  words, though the instrument, grant, award or deed creates a limited estate or a restricted estate, as the case may be,  it  stands  transformed  into  an  absolute  estate provided such property is given to a female Hindu in lieu of maintenance and is placed in her possession. So far as the expression ‘possessed’  is  concerned,  it too has been the subject-matter  of  interpretation by several  decisions  of  this  Court  to  which  it  is  not necessary to refer for the purpose of this case.”

30. In Sadhu Singh’s case, (2006) 8 SCC 75, the facts of the

case were quite different to that of the present case.  In Sadhu

Singh’s  case,  this  Court  proceeded  on  the  basis  that  the

widow had no pre-existing right in the property, and therefore,

the life estate given to her in the Will cannot get enlarged into

absolute estate under Section 14(1) of the Act.

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31. Mr.  Vishwanathan,  learned  senior  counsel  for  the

appellant’s  last  contention  was  that  in  the  absence  of  any

pleading  and  proof  from  the  side  of  the  appellant  to

substantiate the plea that Veeraraghavamma was occupying

the  property  in lieu of  maintenance,  Section 14 will  not  be

automatically attracted. We do not find any substance in the

submission  made  by  the  learned  counsel.  Indisputably,

Exhibit A-2 is a document which very categorically provided

that the property in question was given to Veeraraghavamma

to enjoy the same till her life.  Neither the genuineness of the

said  Exhibit  A-2  was  disputed  nor  it  was  disputed  that

Veeraraghavamma  was  enjoying  the  property  by  way  of

maintenance.  In our considered opinion, unless the factum of

bequeathing  the  property  in  favour  of  the  wife  and  her

continuous possession are disputed, the question of pleading

and proof does not arise.  In other words, no one disputed the

arrangement  made  in  the  Will  and  Veeraraghavamma

continued to enjoy the said property in lieu of maintenance.

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Hence, the ratio decided in  G. Rama’s case (supra) does not

apply.

32.  Further,  indisputably,  Mr.  P.  Venkata  Subba  Rao,  the

original owner of the property, realized the fact that his wife

Veeraraghavamma was issueless and she has a pre-existing

right to be maintained out of his property.  He further realized

that  physically  he  was  weak  and  may  not  survive  for  long

period.   He  therefore,  decided  to  give  his  properties  to  his

family  members.   For  the  maintenance  of  his  third  wife

Veeraraghavamma, he  gave  the  tiled  house  with  site  and

compound wall with the stipulation that she shall enjoy the

property  for  life  in  lieu  of  maintenance.  She  will  also  be

entitled to fetch water from the well and use other facilities.

Admittedly,  no one disputed the  arrangements  made in the

Will  and  Veeraraghavamma continued  to  enjoy  the  said

property.  In view of the admitted position, we have no doubt

to hold that by virtue of Section 14(1) of the Act, her limited

right became absolute right to the suit property.

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33. In  the  impugned  judgment,  the  High  Court  has

elaborately  discussed  the  facts  of  the  case  and  the  law

applicable thereto and came to the conclusion that the trial

court committed serious error of law in holding that by virtue

of Section 14(2) of the Act, her limited right has not become

absolute.   

34. Though no specific word has been mentioned in Exhibit

A-2 that in lieu of maintenance life interest has been created

in  favour  of  Veeraraghavamma,  in  our  opinion  in  whatever

form a limited interest is created in her favour who was having

a pre-existing right of maintenance, the same has become an

absolute right by the operation of Section 14(1) of the Hindu

Succession Act.

35. After giving our anxious consideration to the matter and

the  judicial  pronouncements  of  this  Court  in  a  series  of

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decisions, we hold that the impugned judgment of  the High

Court  is  perfectly  in  accordance  with  law  and  needs  no

interference by this Court.

36. For the reasons aforesaid, this appeal has no merit and

dismissed.  However, there shall be no order as to costs.

…………………………….J. (M.Y. Eqbal)

…………………………….J. (C. Nagappan)

New Delhi November 06, 2015

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