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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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