M. Murugayyan vs M. Ramalingam
Madras
High Court
M.Murugayyan
vs M.Ramalingam on 16 May, 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED
: 16/05/2007
CORAM
THE
HONOURABLE MR.JUSTICE V.DHANAPALAN
S.A.No.690
of 1994
1.
M.Murugayyan, deceased
2.
M.Somasundaram ... Appellants
vs.
1.
M.Ramalingam
2.
Pushpavalli
3.
Sundarambal ... Respondents
Second Appeal filed under Section 100 C.P.C.
against the judgment and decreetal order dated 11.10.1993 made in A.S.No.176 of
1992 on the file of the Court of the District Judge of Thanjavur reversing the
judgment and decretal order, dated 25.11.1991 made in .S.No.15 of 1988 on the
file of the Court of the Subordinate Judge of Thanjavur.
For Appellants :
Mrs.AL.Gandhimathi
For Respondents :
Mr.S.Ashok Kumar,
Senior Counsel
For Mr.K.Jeganathan
JUDGMENT
Aggrieved by the
judgment and decree, dated 11.10.1993 made in A.S.No.176 of 1992 passed by the District
Judge, Thanjavur, reversing the judgment and decree, dated 25.11.1991 in
O.S.No.15 of 1998 on the file of Sub Court, Thanjavur, the first defendant in
the suit has preferred this appeal.
2. The case of the
plaintiff as put forth before the Trial Court is as follows:
The plaintiff's mother,
Gnanambal and defendants 1 to 3, namely, Murugayyan, Pushapavalli and Sundarambal
are the children of the deceased Maruthamuthu. The suit property consists of 2 Schedules,
A and B. According to the plaintiff, the suit A-Schedule property stands in the
name of Maruthamuthu and B-Schedule property stands in the name of Chinthamani
Ammal. The property in A-Schedule was purchased by Maruthamuthu out of his
self-earning and he died intestate in the year 1954, leaving behind his wife,
Chinthamani Ammal, the plaintiff's mother and the defendants as his legal
heirs. On his death, his wife, Chinthamani Ammal and his son Murugaiyan are
entitled to 1/2 share each in the suit property and the plaintiff, as the son
of Gnanambal and in his capacity as the grandson of Maruthamuthu claimed 1/8th
share out of the half- share, which belonged to Chinthamani Ammal. In respect
of B-Schedule property, since the same stands in the name of Chinthamani Ammal,
the plaintiff claims 1/4th share in the said property. The plaintiff's grandmother,
Chinthamani Ammal also died intestate in the year 1968. Hence, the plaintiff
filed a suit for partition of 1/8th share in A-Schedule Property and 1/4th
share in B- Schedule property.
3. The case of the
first defendant is that his father, Maruthamuthu died in the year 1954 and it
is incorrect to state that he died intestate. He has executed a Will, dated
12.01.1954 filed as Ex.B1, under which the suit A- Schedule property has been
bequeathed to his wife Chinthamani Ammal for her life time and after her death,
the same has been bequeathed absolutely in favour of his son, Murugaiyan, the
first defendant. As such, the first defendant submitted that the plaintiff is
not entitled to any partition in respect of A- Schedule property and in respect
of B-Schedule property, which has been purchased by the said Maruthamuthu in
the name of his wife, Chinthamani Ammal for her benefit, the plaintiff is
entitled to 1/4th share. The first defendant further submitted that the Hindu
Succession Act, 1956 does not create any right on Chinthamani Ammal, since the
property has been settled in favour of Chinthamani Ammal under the Will, dated
12.01.1954 only for her lifetime under a written document. Hence, the said
right does not become absolute under the Hindu Succession Act, 1956. The first
defendant further stated that the said suit is liable to be dismissed, since
there are other properties in the name of Chinthamani Ammal, which are not
included in the suit for partition.
4. The Trial Court
framed issues with regard to the truth and genuineness of the Will dated, 12.01.1954
and with regard to the right of Chinthamani Ammal as to whether she had any
absolute right in respect of half share in the property as per the provision
under Section 14 of the Hindu Succession Act. The Trial Court, on evaluation of
the evidence, found that the Will, dated 12.01.1954 is true and genuine and
since the said property has been settled in favour of Chinthamani Ammal only
for her life time under a written document, the said right will not become an
absolute right under the Hindu Succession Act, 1956. The Trial Court further
held that Section 14(1) of the Hindu Succession Act, 1956 will not apply and
the property was given to Chinthamani Ammal under a written document and as
such, Section 14(2) of the Hindu Succession Act, 1956 alone will be attracted
and hence, the right of Chinthamani Ammal cannot be termed as absolute right
and dismissed the suit, so far as the A-Schedule property is concerned and
granted 1/4th share in the suit B-Schedule property.
5. Aggrieved by the
order of the Trial Court, the plaintiff went for an appeal in A.S.No.176 of
1992 before the District Court, Thanjavur. Defendants 2 and 3, daughters of the
deceased Maruthamuthu and Chinthamani Ammal, also claimed 1/8th share of the
A-Schedule property. According to the first defendant, the A-Schedule property
was purchased by his father Maruthamuthu out of his self-earning and he has
bequeathed it under a Will dated 12.01.1954 to his wife, Chinthamani Ammal for
her life time. The Lower Appellate Court found that on behalf of the plaintiff,
no documents were marked. The Lower Appellate also took into consideration the genuineness
of the Will dated, 12.01.1954. The Lower Appellate Court found that even though
the suit A-Schedule property has been bequeathed under a written document, the
deceased Chithamani Ammal had a pre-existing right over the property and hence,
Section 14(2) of the Hindu Succession Act would not be attracted and as per
Section 14(1) of the Hindu Succession Act, the right of Chinthamani Ammal will
become an absolute right. On this ground, the Lower Appellate Court decreed the
suit, against which, the first defendant Murugaiyan has filed the present
Second Appeal.
6. At the time of
admitting this Second Appeal on 22.06.1994, this Court raised the following substantial
questions of law :
"(a) Whether the
Lower Appellate Court was correct and justified in reversing the decision of
the Trial Court and granting the relief of partition?
(b) Is the Lower
Appellate Court correct and justified in holding that Section 14(1) of the
Hindu Succession Act applies and not Section 14(2) in respect of disposition
under Ex.B1?
(c) Is the Lower
Appellate Court correct and justified in allowing the application I.A.No.221 of
1993?"
7. Mrs. AL.Gandhimathi,
learned Counsel for the appellant contended that the Lower Appellate Court was
erroneous in holding that the plaintiff and the defendants 2 and 3 are entitled
to 1/8th share each in 'A' Schedule property. She also contended
that the Lower Appellate Court, having very rightly upheld Ex.B1, erred at the
same time in holding that though limited interest is given under that document,
Section 14(1) of Hindu Succession Act applies and that Section 14(2) of the
said Act is inapplicable. According to her, the Lower Appellate Court ought to
have held that the first defendant has prescribed title at any rate and
dismissed the suit.
8. In support of her
contentions, learned Counsel for the appellant relied on the following
judgments:
(i) In AIR 1971 SC 745
in the case of Mst.Karmi vs. Amru and others, the Supreme Court has held as follows:
"2. The
respondents sued the appellant for the possession of the suit properties on the
strength of the will dated November 13,1937. The appellant denied the
genuineness as well as validity of that Will. The sole question for decision
was whether Nihali got the properties on the strength of the will dated
November 13, 1937 or in her own right as the heir to her husband. The trial
Court dismissed the suit holding that Nihali got possession of the properties
not on the strength of the will but as the widow of Jaimal. The trial Judge
thought that the will executed by Jaimal in 1937 had been revoked as it was not
invoked after the death of Jaimal for a long period. In appeal, the Additional
DistrictJudge, set aside the order of the trial Court and decreed the
plaintiff's claim holding that the will executed by Jaimal was true and genuine
and that it was the last will executed by him. The High Court has affirmed that
decision. The concurrent finding of the first Appellate Court as well as the High
Court that the will executed by Jaimal on November 13, 1937, is genuine is a
finding of fact and the same cannot be assailed in this Court. Nihali having
succeeded to the properties of Jaimal on the strength of that will cannot claim
any rights in those properties over and above that given to her under that
will. The life estate given to her under the will cannot become an absolute
estate under the provisions of the Hindu Succession Act. Therefore, the
appellant cannot claim any title to the suit properties on the basis of the
will executed by Nihali in her favour."
(ii) In AIR 1977 SC
1944 in the case of Vaddeboyina Tulasamma and others vs. Vaddeboyina Sesha Reddi
(dead) by L.Rs., the Supreme Court has held as follows:
"70. 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 to the interpretation of Section 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 recognized 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 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 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 recognizing 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 form 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 S.14 applies instruments, decrees, awards,
gifts, etc., which create independent 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 recognize pre-existing rights. Where, however,
an instrument merely declares or recognizes a pre-existing right, such as a
claim to maintenance or partition or
share to which the female is entitled, the sub- section is 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)."
(iii) In AIR 1987 SC
353 in the case of Kothi Satyanarayana vs. Galla Sithayya and others, the Apex Court
has held as follows:
"2. Plaintiff
asked for a decree for possession after eviction of the defendants and claimed
mesne profits both past and future. Plaintiff and Veeraraju happened to be sons
of Ramamurthy. The two brothers had amicably partitioned their properties in
1909. Veeraraju died in 1927 leaving behind his widow. As Ramamurthy sold
certain properties on the widow with life interest and upon her death, those
properties were to revert to Ramamurthy or his heirs. After the widow's death,
the plaintiff who is son of Ramamurthy claimed the properties but defendant
No.1, who is the brother of the widow set up title thereto under a Will dated
May 14, 1962 of the widow.
3. The main question
that arose for consideration in the Courts below was whether the life-estate created
in favour of Veeraraju's widow under the Settlement Deed had been transformed
into full ownership under S.41(1) of the Hindu Succession Act of 1956. All the
three Courts have held that the life- estate carved out under the 1937
settlement did not get transformed into title in favour of the widow and she
did not acquire any alienable interest in the properties to bequeath in favour
of her brother.
4. The only question
which has been canvassed at the hearing is whether in the facts of the case, sub-section
(1) or sub-section (2) of S.14 of the Act is applicable. It is not disputed
that sub-section (2) of S.14 is an exception to sub-section (1) thereof and if
the situation is covered by sub-section (2), the transformation provided for in
sub-section (1) would not take place.
5. The Settlement Deed
is an instrument contemplated under sub.section (2) and admittedly it created a
restricted estate in favour of the widow. Therefore, sub-section (1) of Section
14 would not be attracted. The submission of the appellant's learned counsel
that the Settlement Deed brought the properties covered by it in exchange or in
lieu of properties unauthorisedly alienated in the alienated property, title
must be held to have accrued in favour of the widow in the properties covered
by the settlement cannot be accepted."
(iv) In AIR 1989 Madras
69 in the case of K.S.Subramania Pillai and others vs. E.S.R. Packirisami Pillai,
this Court has held as follows: "3. ? The first feature is, the recitals
in Ex.B1 do not refer to any pre-existing right of Soundarathammal against
property, such as her right to maintenance, so as to say, that it was only in
recognition, thereof, or in confirmation and reiteration thereof, the suit property
was given to her in the manner done under Ex.B1. If we go by the express
recitals of in Ex.B1 it is not possible to spell out of a theory that the
disposition under Ex.B1 of the suit property in favour of Soundarathammal, was
done to confirm, endorse, declare or recognize any pre-existing right of Soundarathammal
against property. It will be proper and safer to go by the express recitals found
in the document itself to find out as to whether only in recognition of any
pre-existing right against property the disposition could be stated to have
been made. Another feature, which speaks against the case of the defendant is
that there is no pleading at all that only in recognition or confirmation or
declaration of any pre-existing right of Soundarathammal against property, the
suit site was given to her under Ex.B1. While deciding this question, the
parties are bound by their pleadings, unless the express recitals in the deed
do support their cases one way or the other. Here the express recitals do not
in any way indicate that the disposition was in confirmation or reiteration or
declaration of any pre-existing right of Soundarathammal, against property,
such as her right to maintenance. In my view, the recitals being unambiguous
and there being no pleading on the part of the defendant that the disposition
under Ex.B1 was only in confirmation, reiteration and declaration of any
pre-existing right of Soundarathammal against property, there is no scope for
invoking the aid of Section 14(1) of the Act and on the facts of the case, the
rigor of S.14(2) alone must rule. ?
4. in the absence of
express recitals need not be conclusive and this court has taken note of circumstances
also to uphold the plea that life interest given to a woman under a document
could be in reiteration, confirmation and declaration of her pre-existing right
against property. Reliance was placed on a pronouncement of a Bench of this
Court in Sri Mahaliamman Temple vs. Vijayammal (1983) 2 Madras LJ 442. There
the facts of the case were entirely different. There was in fact, a claim for maintenance
by the daughter-in-law and that was recognized by the father-in-law, who had earlier
executed the will, giving the daughter-in-law a life estate only in the
properties concerned. Taking note of that factor, the Bench opined that the
father-in-law must be deemed to have given the properties concerned only as
provision for maintenance. The law on the subject has been settled with clarity
and in detail in Tulasamma vs. Sesha Reddi, AIR 1977 SC 1944, and on the facts
of that case, which took in a compromise arrived at between the parties,
allotting the properties in question to the woman for her maintenance and
giving her limited interest in such properties, the Supreme Court held that
such allotment in lieu of her maintenance was in recognition of her right to maintenance,
which was a pre- existing right, and therefore, the case of the women would
fall squarely within S. 14(1) read with the explanation thereto. Such is not
the case here. No material has been exposed in the case by the defendant to demonstrate
that the suit property was given to Soundarathammal in reiteration,
confirmation or in declaration of any pre-existing right of hers against
property. Neither the recitals in Ex.B1 nor the pleadings put forth by the
defendant nor the evidence placed by him supports such a theory. This being the
case, I am not able to appreciate and sustain the line of thinking by the court
below, it upheld the claims of the defendant by virtue of S.14 (1) of the Act,
the estate of Soundarathammal, under Ex.B1.." (v) This Court in 1992 (1)
L.W. 543 in the case of Angammal and two others vs. M.Ramalinga Pandaram and
seven others has held as follows: "4. The Trial Court dismissed the suit,
holding that the rights of Angammal got enlarged by virtue of S.14(1) of the Hindu
Succession Act, 1956 and in view of the settlement deed executed by the said
Angammal, the angates of Sami Pandaram had no other right whatsoever as claimed
by the plaintiffs. Aggrieved, the plaintiffs filed an appeal before the lower
appellate Court. The lower appellate court, disagreeing with the conclusions of
the trial Court on the applicability of S.14 (1) of the Hindu Succession Act,
came to the conclusion that it was S.14(2) of the Hindu Succession Act that
applied that Angammal did not and could not get an absolute estate and the
question as to who are the next nearest reversioners to the estate of Sami Pandaram
and further whether the claim made through Veerabadra as the next or nearest
heir could be sustained and for the limited purpose, remitted the matter to the
Trial Court. Aggrieved, defendants 1 to 3 filed the above appeal questioning
the order of remand.
5. the conclusion of the lower appellate Court
that Angammal had only a limited estate having regard to S.14 (2) of the Act
and did not and could not become the absolute owner of the property she got
under the settlement deed executed by Sami Pandaram in the year 1974 by virtue
of S.14(1) of the Act, is contrary to law and cannot be sustained and that the
findings of the trial Court in this regard ought not have been interfered with
by the lower appellate Court. In a decision reported in in Tulasamma vs. Sesha
Reddi, AIR 1977 SC 1944, it is held that a life estate given to the settlee for
the purpose of her maintenance would fall within the scope of S.14(1) of the
Hindu Succession Act read with the explanation and such limited right would get
enlarged and ripened into a full or absolute right in the properties so
settled. On this basis, the learned Counsel submitted that the conclusions of the
lower appellate Court are opposed to the catena of decisions of this Court as
well as the Supreme Court and consequently cannot be sustained in so far as it
related to the rights of Angammal and the applicability of S.14(1) of the Hindu
Succession Act so far as the estate got by her under the settlement deed of the
year 1914 executed by her husband for her maintenance. "
(vi) In 1992 (1) L.W.
601, the Apex Court in the case of Thota Sesharatnamma and another vs. Thota Manikyamma
(dead) by LRs and others has held as follows:
"12. this Court in
a long series of cases has taken a consistent view that S.14(2) of the Act is
in the nature of a Proviso or an exception to S.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 S.14(1) of the Act then
the female Hindu shall be held to be full owner of the property and sub-S(2) of
S.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-S(2) of S.14 will be construed more in the nature of a
Proviso or an exception to sub-S(10) S.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 to achieve as social purpose by bringing about change in the
social and economic position of women in Hindu Society. "
(vii) In AIR 1994 SC
1202 in the case of Bhura and others vs. Kashiram, the Apex Court has held as follows:
"6. The limited
estate conferred upon Sarjabai by the Will (W.P.4) could not even be enlarged
into an absolute estate under the Hindu Succession Act, 1956, even though she
was possessed of that property at the time of coming into force of the Hindu
Succession Act, 1956. S.14(2) of the Act mandates that nothing contained in
Sub-section (1) of Section 14 of the Hindu Succession Act, 1956 shall apply to
any property acquired by way of gift or under a Will or by any other instrument
prescribing a restricted right in such property. In view of our finding that
the Will (Ex.P4) itself prescribed a restricted right or life- estate in the
property in favour of Sarjabai, that estate could not be enlarged into an
absolute estate in view of the express provisions of the Hindu Succession Act, 1956.
7. After referring to
various provisions of the Abolition Act, the High Court came to the conclusion,
on the facts of this case, that notwithstanding the above provisions, factually
Sarjabai had continued to retain possession of the said land in the suit, not
under any fresh grant under the provisions of the 'Abolition Act' but since she
was already in possession of the said land as a limited owner under the Will
(Ex.P4). We are in complete agreement with the reasoning of the High Court on
this aspect and need not dwell on it any further.
8. the High Court
rightly set aside the judgment and decree of the Trial Court and directed that since
Sarjabai had died that had brought to an end her limited rights, and therefore
the transferees. Respondents 2 to 9, should put the plaintiff-appellant in
possession of the suit land. " (viii) In AIR 1996 SC 1697 in the case of
C.Masilamani Mudaliar and others vs. The Idol of Sri Swaminathaswami Thirukoil
and others, the Apex Court has held as follows:
"3. The appellants
are the alienees from Sellathachi, widow of Somasundaram Pillai, who had executed
a will, Ex.A3 on 16.07.1950 bequeathing the suit properties to his wife and his
cousin's widow Janakathache mentioning thereunder as follows:
"Whereas I have no
male or female issues and my wife (1) Sellathachi and (2) Janaka Thathachi, wife
of my senior paternal uncle's son Thabasuya Pillai are living with me and in my
family and other than the other 2 persons, there is none else in my family.
Amongst the aforesaid persons, the aforesaid Janaka Thachi have got only
maintenance relationship and none else in my family have any right in the share
or have maintenance relationship. I am duty bound to provide maintenance for
the aforesaid two persons and I have no other duty to be performed. Therefore,
after my lifetime, the under mentioned A Schedule property valued at Rs.2,000/-
shall be got by the aforesaid two persons and shall be enjoyed in equal shares
without any right to alienate the same and perform the charities as per their
wish and after the lifetime of both the aforesaid persons, Govindarasan Pillai,
S/o, Peria Pillai of the aforesaid Eduvankudi Village shall be the Trustee of A
Schedule Property?." "
(ix) In AIR 1997 SC
3082 in the case of Vankamamidi Venkata Subba Rao vs. Chatlapalli Seetharamaratna
Ranganayakamma, the Supreme Court has held as follows:
"14. Raghavamma,
the mother of the first respondent and the first appellant had executed sale deed.
Ex.B3, in favour of the third party alienating 1.50 acres of land had under the
compromise decree. Therein, she has specifically stated that she a life
interest in terms of the compromise decree, Ex.A-11. Similarly, a gift deed was
executed in favour of Raghavamma by the first appellant in respect of 1.90
acres of land. Thereunder also, she had acknowledged not only the limited
estate had under the compromise decree but also her limited right under Ex.A4
for enjoyment during her lifetime and the possession given as per the
compromise decree. Thus, it could be seen that after the Act had come into
force, in 1959 she had acknowledged in Ex.A3 and A4 that what she obtained under
the compromise decree, Ex.A11 was a limited right with the provision that the
property would revert to her son, the first appellant. Thus, it could be seen
that she had admitted that she only limited right acquired for the first time
under the compromise decree. Thereby, sub-section (2) of Section 14 of the Act
not sub-section (1) of Section 14 stands attracted. That apart, even the Settlement
Officer has passed an order granting Ryotwari patta under Section 15 of the
Abolition Act, which became final."
(x) The Supreme Court
in the judgment reported in 1998 (II) CTC 253 in the case of Raghuvir Singh and
others vs. Gulab Singh and others has held as follows:
"20. Dealing with
the scope of section 14 of the Act, the learned Judge opined that the
provisions of the Section 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" in consonance with the changing temper of the times"
and observed:-
"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 for a long-felt need and tried to do away with the invidious
distinction between a Hindu male and female in matters of intestate succession:
The learned Judge then
interpreted Section 14 thus:
"1. 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. 2. Sub-section (2) of Section 14 is in the nature of a
proviso and has a filed 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. 3. 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 not application where the instrument
concerned merely seeks to confirm, endorse, declare or recognize pre-existing
rights. In such cases, a restricted estate in favour of a female is legally
permissible and Section 14(1) will not operate in this sphere. Where, however,
an instrument merely declares or recognizes a pre-existing right, such as a claim
to maintenance or partition or share to which the female is entitled, the
subsection 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 documents 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.
4. 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)."
21. The judgment in
Tulasamma's case has held the field till date (see also with advantage: Ram
Kali (Smt.) v. Choudhri Ajit Shankar and others, JT 1997 (3) SC 158 : 1997 (9)
SCC 613 and Bhoomireddy Chenna Reddy and another vs. Bhoospalli Pedda Verapa
(dead) by LRs and another, 1997 (10) SCC 673. "
(xi) This Court in 2001
(2) CTC 665 in the case of G.Bhanumathi vs. Ratan Kawar and another has held as
follows:
"36. It is true
that Muniammal, the original owner of the property has executed a settlement
deed as found under Ex.P1, wherein she has given life estate to her daughter
Jayalakshmi. It cannot be disputed that Section 14(2) of the Hindu Succession
Act is an exception to Sub-Section (1) thereof, and if in a given case, the
situation is covered by Sub-Section (2), the enlargement provided for in Sub-Section
(1) would not take place at all. The Settlement deed is an instrument
contemplated under sub-Section (2). Concededly, it has created a restricted
estate in favour of Jayalakshmi. Under the circumstances, sub- Section (1) to
Section 14 would not be attracted, and thus the Court has to necessarily agree
with the argument advanced by the learned Counsel for the plaintiff that sub-Section
(1) to Section 14 of the Hindu Succession Act has no application, but only
sub-section (2)."
(xii) In 2002 (3) L.W.
720 in the case K.Narasimhan (deceased) and others vs. K.Rajagopal, this Court
ihas held as follows:
"13. Before
dealing with the other findings of the Courts below, I would like to appreciate
whether the courts below are correct in coming to the conclusion that Rukmani
Ammal's right had been enlarged under Section 14(1) of the Hindu Succession
Act, 1956 and thereby she became absolute owner of the property. Unfortunately,
no such plea was raised and no issue was framed to that effect. In spite of
that, the courts below have dealt with the same and found that the life interest
of Rukmani Ammal had enlarged and thereby she became absolute owner of the
property. Such a finding cannot be sustained for want of pleading and evidence.
14. Even on merits,
life estate was not given to Rukmani Ammal in lieu of any maintenance. Even the
tenant had admitted in the affidavit filed in support of M.P.No.1761/1984 that
the appellants are the absolute owners of the property. On reading of the will
annexed to Ex.A5, dated 15.04.1942, in no stretch of imagination it can be
concluded that the life interest of Rukmani Ammal was in possession on the
basis of limited right given under the said will, it cannot be said that
Section 14(1) of the said Act can be applied automatically and that she become
absolute owner of the property. Both the Courts below have not properly
appreciated the scope of Section 14(1) of the said Act and so the findings
given by the Courts below cannot be sustained."
(xiii) The Apex Court
in 2006 (8) SCC 75 in the case of Sadhu Singh vs. Gurdwara Sahib Narike and others,
has held as follows:
"11. On the
wording of the section and in the context of these decisions, it is clear that
the ratio in V.Tulasamma vs. Shesha Reddy has application only when a female
Hindu is possessed of the property on the date of the Act under semblance of a
right, whether it be a limited or a pre-existing right to maintenance in lieu
of which she was put in possession of the property. Tulasamma ratio cannot be
applied ignoring the requirement of the female Hindu having to be iun
possession of the property either directly or constructively as on the date of
the Act, though she may acquire a right to it even after the Act. The same is
the position in Raghubar Singh vs. Gulab Singh, wherein the testamentary
succession was before the Act. The widow had obtained possession under a will.
A suit was filed challenging the will. The suit was compromised. The compromise
sought to restrict the right of the widow. This Court held that since the widow
was in possession of the property on the date of the Act under the will as of
right and since the compromise decree created no new or independent right in
her, Section 14(2) of the Act had no application and Section 14(1) governed the
case, her right to maintenance being a pre-existing right. In Karmi vs. Amru,
the owner of the property executed a will in respect of a self-acquired
property. The testamentary succession opened in favour of the wife in the year
1938. But it restricted her right. Thus, though she was in possession of the
property on the date of the Act, this Court held that the life estate given to
her under the will cannot become an absolute estate under the provisions of the
Act. This can only be on the premise that the widow had no pre-existing right
in the self-acquired property of her husband. In a case, where a Hindu female
was in possession of the property as on the date of the coming into force of the
Act, the same being bequeathed to her by her father under a will, this Court in
Bhura vs. Kashi Ram, after finding on a construction of the will that it only
conferred a restricted right in the property in her, held that Section 14(2) of
the Act was attracted and it was no a case in which by virtue of the operation
of Section 14(1) of the Act, her right would get enlarged into an absolute estate.
This again could only be on the basis that she had no pre-existing right in the
property. ?"
9. Per contra, learned
Counsel for the respondents contended that Chinthamani Ammal, wife of Maruthamuthu
is entitled to maintenance out of her husband's estate irrespective of whether
that estate is in the hands of his male issue or is in the hands of his
coparcener.
He contended that as
per Section 14(1) of the Hindu Succession Act, 1956, 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. Hence,
he contended that Chinthamani Ammal, being a widow has the right to maintain
herself till her life time. In support of his contentions, he relied on the following
decisions:
(i) In 1977 (3) SCC 99
in the case of V.Tulasamma and others vs. Sesha Reddy (dead) by L.Rs., the Supreme
Court has held as follows: "Section 14(1) is wide in its scope and ambit.
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. The
words 'any property' are large enough to cover any kind of property, and the
Explanation 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 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 sridhana immediately before the
commencement of the Act. The words 'possessed of' mean the state of owing or
having in one's hand or power. It need not be actual or physical possession or
personal occupation of the property but may be possession in law. It can be
even constructive possession in any form recognized by law provided that she
has not parted with her rights and is capable of obtaining possession of the property.
Section 14(2) provides
that 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, or will or
other instrument or decree, order or award prescribe a restricted estate in
such property. This provision is in the nature of a proviso or exception to
sub-section (1). It excepts certain kinds of acquisition of property by a Hindu
female from the operation of sub-section (1) and being in the nature of an
exception to a provision which is calculated to achieve the social purpose of
bringing about a change in the social or economic position of woman in Hindu
Society, it must be a change in the social or economic position of woman in
Hindu Society, it must be construed strictly so as to impinge as little as
possible on the broad sweep of the ameliorative provision contained in
sub-section (1).
Sub-section (2) cannot
therefore be interpreted in a manner which would rob sub-section (1) of its efficacy
and deprive a Hindu female of the protection sought to be given to her by
sub-section (1). The language of sub-section (2) is apparently wide to include
acquisition of property by a Hindu female under an instrument etc. where such
instrument etc. prescribes for her a restricted estate and this would
apparently cover a case of property given to her under sub-section (1) with
limited interest for her in the property. But that would virtually emasculate
sub-section (1) and the Explanation (1) to it would be rendered meaningless
because, a large number of cases where property is given to a Hindu female at a
partition or in lieu of maintenance under an instrument, order or award would
be excluded from the operation of the beneficial provision in sub- section (1),
since in most of such cases, where property has been allotted to a Hindu female
prior to the Act, there would be a provision in consonance with the customary
Hindu law prescribing a limited interest in the property allotted; and in
property allotted subsequent to the Act, it would be the easiest thing to prove
that the Hindu female shall only have a limited interest and thus make a mockery
of sub-section (1). That could not have been the intention of the legislature
and therefore, sub-section (2) must be confined to cases where any pre-existing
right under a gift, will, instrument, decree, order or award, the terms of
which prescribe a restricted estate in the property. That this is the
legislative intendment is also made clear by the circumstances that the Hindu
Succession Bill referred to acquisition of property by a Hindu female under
gift or will only and it was only subsequently, in the Act, that other modes of
acquisition were added.
It is settled law that
a widow is entitled to maintenance out of her deceased husband's estate irrespective
of whether that estate is in the hands of his male issue or is in the hands of
his coparcener. This right to be maintained is not a jus in rem unless the
right has ripened into a charge against specific property, but it is certainly
a jus ad rem, that is, a right against the joint family property. Therefore,
where specific property is allotted to her in lieu of her claim to maintenance,
the allotment would be in satisfaction of her jus ad rem, namely, the right to
be maintained out of the joint family property. The widow would be getting the
property in virtue of her pre-existing right, the instrument giving the
property being merely a document effectuating such pre-existing right and not
making a grant of the property for the first time without any antecedent right
or title. In fact, even if the instrument were silent as to the nature of the
interest given to the widow, in the property given to her in the virtue of a
pre-existing right, she would have no more than a limited interest in the
property under customary Hindu Law and hence a provision in the instrument prescribing
that she would have only a limited interest merely records the true legal position,
and would not attract sub-section (2) but would be governed by sub-section
(1)." (ii) The Supreme Court in AIR 1979 SC 993 in the case of Bai Vajia
(dead) by LRs vs. Thakorbhai and others, has held as follows:
"The widow's right
to maintenance, though not an indefeasible right to property, is undoubtedly a "pre-existing"
right. It is true that a widow's claim for maintenance does not ripen into a
full-fledged right to property, but nevertheless it is undoubtedly a right
which in certain cases can amount to a right to property where it is charged.
It cannot be said that where a property is given to a widow in lieu of
maintenance, it is given to her for the first time and not in lieu of a
pre-existing right. The claim to maintenance, as also the right to claim
property in order to maintain herself, is an inherent right conferred by the
Hindu Law, and therefore, any property given to her in lieu of maintenance is merely
in recognition of the claim or right which the widow possessed from before. It
cannot be said that such a right has been conferred on her for the first time
by virtue of the document concerned and before the existence of the document
the widow had no vestige of a claim or right at all." (iii) In AIR 1998 SC
2401 in the case of Raghubar Singh and others vs. Gulab Singh and others, the Supreme
Court has held as follows: "It is by force of S.14(1) that the widow's
limited interest gets automatically enlarged into an absolute right
notwithstanding any restriction placed under the document or the instrument. So
far as sub.section (2) of S.14 is concerned, it applies to instruments, decrees,
awards, gifts, etc., which create an independent or a new title in favour of
the female for the first time. It has no application to cases where the
instruments/document either declares or recognizes or confirms her share in the
property or her "pre-existing right to maintenance" out of that
property. Sub-section (2) of S.14 is in the nature of a proviso and has a field
of its own, without interfering with the operation of S.14(1) of the Act."
11. Heard both sides. I
have given careful consideration to the arguments of the learned counsel on either
side and the citations relied on by them in support of their arguments.
12. From the facts of
the case, it is clear that 'B' Schedule Property stands in the name of Chinthamani
Ammal and there is no dispute about it. The Trial Court has rightly ordered
that the plaintiff Ramalingam is entitled to 1/4th share in the 'B' Schedule
property. Even the Lower Appellate Court had a concurrent view with regard to
the plaintiff's entitlement of 1/4th share in the 'B' Schedule property. The
dispute in this appeal is mainly with regard to the plaintiff's entitlement of
1/8th share in the 'A' Schedule property.
13. According to the
plaintiff Ramalingam, his grandfather Maruthamuthu died intestate, leaving behind
his mother, grandmother and defendants as his legal heirs. According to him,
after the death of husband, the wife becomes the absolute owner of the property
and she has the right to bequeath or sell the property and so the plaintiff,
claimed 1/8th share in the 'A' Schedule property. Since the relief sought by
the plaintiff regarding the entitlement of share was only partially granted by
the Trial court, he has preferred an appeal before the Lower Appellate Court
for entire relief. The Lower Appellate Court has answered in favour of the
plaintiff, without proper evaluation of the evidence on record.
14. Aggrieved by the
judgment of the Lower Appellate Court, the first defendant Murugaiyan has preferred
this appeal. According to the first defendant, his father Maruthamuthu
purchased the 'A' Schedule property out of his self earnings and had executed a
Will, dated 12.01.1954 marked as Ex.B1, bequeathing his property in favour of
his wife, Chinthamani Ammal for her life time and maintenance. The first
defendant, who is the appellant herein has contended that since 'A' Schedule property
has been bequeathed in favour of his mother under a Will and she has no
absolute right in that property under Section 14(2) of the Hindu Succession Act
and that the plaintiff is not entitled to claim 1/8th share in that property.
15. The main question
that arises for consideration in this appeal is the genuineness of the Will, dated
12.01.1954. The Trial Court, on evaluation of the evidence, has rightly held
that the Will, dated 12.01.1954 is genuine. But the Lower Appellate Court,
without proper evaluation of the genuineness of the Will, has held that the
plaintiff and defendants 2 and 3, each are entitled to 1/8th share of the 'A'
Schedule property. The burden of proof regarding the genuineness of the Will
lies on the first defendant, Murugaiyan. If the will is genuine, then the
plaintiff will not be entitled to claim 1/8th share in the 'A'
Schedule property, since Chinthamani Ammal, wife of the deceased Maruthamuthu has
only a restricted estate in such property.
16. The attesting
witnesses to Ex.B1, Will are Ponnurangam and Govindaraj. Ponnurangam is the scribe.
The first defendant, in his evidence, has stated that Ponnurangam is the
husband of Sundarambal, who is none other than his sister. He has clearly
stated in his evidence that the signature in the Will is that of Ponnurangam
and he has further stated that Ponnurangam and the other attesting witness,
Govindarajan are not alive. Since the scribe, Ponnurangam is the brother-in-law
of the first defendant, there is every possibility of the first defendant being
familiar with the signature of Ponnurangam.
17. Since the executor
of the Will is no more and the attesting witness to the Will are also not
alive, the genuineness of the Will can be proved as per Section 69 of the
Indian Evidence Act, 1872, extracted as hereunder: "If no such attesting
witness can be found, or if the document purports to have been executed in the
United Kingdom, it must be proved that the attestation of one attesting witness
at least is in his handwriting, and that the signature of the person executing
the document is in the handwriting of that person."
From the above facts,
it is clear that the deceased Maruthamuthu has executed a Will, dated 12.01.1954
and the genuineness of the Will is proved. The main question in this appeal
regarding the genuineness of the Will is answered accordingly.
18. Since the genuineness
of the Will is proved, the next question that arises for consideration is whether
the plaintiff is entitled to 1/8th share in the 'A' Schedule property. It is
seen from Ex.B1, Will, that the 'A' Schedule property, after the death of
Maruthamuthu was bequeathed in favour of his wife till her life time and
maintenance nd after the death of his
wife, his son shall bequeath the same. In the Will, it is also stated that the
daughters of the deceased Maruthamuthu are not entitled to claim share in the
property. The relevant portion of the Will, dated 12.01.1954 executed by Maruthamuthu
reads as follows:
19. To answer the above
question, it is worth referring to the decision of the Supreme Court reported in
2006 (8) SCC 75 in the case of Sadhu Singh vs. Gurdwara Narike and others,
wherein paragraph 15 reads as follows: "Sub-section (2) of Section 14
applies to instruments, decrees, awards, gifts, etc., which create independent
and new title in favour of females for the first time and has no application where
the instruments concerned merely seek to confirm, endorse, declare or recognise
pre-existing rights. The creation of a restricted estate in favour of a female
is legally permissible and Section 14(1) will not operate in such a case. Where
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." Whereas, as per Section 14(1) of the Hindu
Succession Act, 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.
20. The very object of the applicability of
Section 14(1) or 14(2) of the Hindu Succession Act, 1956 have a vital role to
play in the case of a Hindu family. The essential ingredients for determining
as to whether Section 14(1) of the Hindu Succession Act, 1956 would come into
play the antecedents of the property, the position of the property as on the
date of the Act and the existence of a right infamily over it, however limited
it may be. Any acquisition of possession of property by a female Hindu after the coming
into force of the Act, cannot normally attract Section 14(1) of the Act. It would
depend on the nature of the right acquired by her. If she takes it as an heir
under the Act, she takes it absolutely. If while taking possession of the
property after the Act, under a devise, gift or other transaction, any
restriction is placed on her right, the restriction will have play in view of Section
14(2) of the Act.
21. An owner of the
property has normally the right to deal with that property including the right
to devise or bequeath the property. He could thus dispose it of by a testament.
Section 30 of the Act, not only does not curtail or affect this right, it
actually reaffirms that right. Thus, a Hindu male could testamentarily dispose
of his property. When he does that, a succession under the Act stands excluded
and the property passes to the testamentary heirs. Hence, when a male Hindu
executes a Will bequeathing the properties, the legatees take it subject to the
terms of the Will unless of course, any stipulation therein is found invalid
and it goes only by that testament. In case, if the indu male disposes of his property by
providing only a life estate or limited estate for his widow, the Act does not
stand in the way of his separate properties being dealt with by him as he deems
fit. This restriction on the right of the widow is really respected by the Act.
In such a case, the widow is bound by the limitation on her right and she
cannot claim any higher right by invoking Section 14(1) of the Act. Therefore,
the conferment of a limited estate, which is otherwise valid in law is
reinforced by this Act by the introduction of Section 14(2) of the Act and
excluding the operation of Section 14(1) of the Act, even if that provision is
held to be attracted in the case of a succession under the Act.
22. In the present
case, 'A' Schedule property has been acquired by Chinthamani Ammal, wife of the
deceased, under a Will, dated 12.01.1954. Going by the terms of the Will, 'A'
Schedule property has been bequeathed to Chinthamani Ammal and she is entitled
to maintenance till her life time. After her death, her son Murugaiyan and his
heirs shall acquire and enjoy possession of the same. It is seen that
Chinthamani Ammal died in the year 1968, leaving behind her son as her legal
heir in respect of the 'A' Schedule property. It is also clear from the Will
that the daughters of the deceased Maruthamuthu are not entitled to claim any
share in the 'A' Schedule property. Hence, it is abundantly clear that 14(2) of
the Hindu Succession Act, squarely applies to the facts of the case.
23. Upon perusing all
the legal propositions applicable to the given facts of the case and the legal propositions
established by the Honourable Supreme Court in the case of Tulasamma and Bai
Vajia vs. Thakorbhai Chelabhai and having proved the genuineness of the Will,
dated 12.01.1954, Section 14(2) of the Hindu Succession Act applies to the
present case and therefore, neither the plaintiff nor defendants 2 and 3 is
entitled to any share in the 'A' Schedule property. Accordingly, the judgment of
the Lower Appellate Court in granting 1/8th share, each to the plaintiff and
defendants 2 and 3 is set aside and the Second Appeal is partially allowed in
respect of 1/4th share to the plaintiff of the 'B' Schedule property. In fine,
the plaintiff is entitled to only 1/4th share in the 'B' Schedule property and
the grant of 1/8th share to the plaintiff and defendants 2 and 3,
each, in respect of the 'A' Schedule property is set aside. The Second Appeal
is disposed of in the above terms. No costs.
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