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TMI Blog1977 (3) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... u of maintenance under an instrument which in so many terms restricts the nature of the interest given to her in the property. If sub-section (1) applies, then the limitations on the nature of her interest are wiped out and she becomes the full owner of the property, while on the other hand, if sub-section (2) governs such a case, her limited interest in the property is not enlarged and she continues to have the restricted estate prescribed by the instrument. The question is of some complexity and it has evoked wide diversity of judicial opinion not only amongst the different High Courts but also within some of the High Courts themselves. It is indeed unfortunate that though it became evident as far back as 1967 that subsections (1) and (2) of section 14 were presenting serious difficulties of construction in cases where property was received by a Hindu female in lieu of maintenance and the instrument granting such property prescribed a restricted estate for her in the property and divergence of judicial opinion was creating a situation which might well be described as chaotic, robbing the law of that modicum of certainty which it must always possess in order to guide the affairs o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatever, and also any such property held by her as stridharas immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shah apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property." Prior to the enactment of section 14, the Hindu law, as it was then in operation, restricted the nature of the interest of a Hindu female in property acquired by her and even as regards the nature of this restricted interest, there was great diversity of doctrine on the subject. The Legislature, by enacting sub-section (1) of section 14, intended, as pointed by this Court in S.S. Munna Lal v.S.S. Raikumar([1962] Supp. 3 S.C.R. 418) "to convert the interest which a Hindu female has in property, however, restricted the nature of that interest under the Sastric Hindu law may be, into absolu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds 'possessed of mean "the state of owning or having in one's hand or power". It need not be actual or physical possession or personal occupation of the property by the Hindu female, but may be possession in law. It may be actual or constructive or in any form recognized by law. Elaborating the concept, this Court pointed out in Mangal Singh v. Rattno(2) that the section covers all cases of property owned by a female Hindu although she may not be in actual, physical or constructive possession of the property, provided of course, that she has not parted with her rights and is capable of obtaining possession of the property. It will, therefore, be seen that sub-section (1) of section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was 'subsequently acquired and possessed, she would become the full owner of the property. Now, sub-section (2) of section 14 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 instrumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section (1) which includes within the scope of that sub-section property acquired by a female Hindu at a partition or in lieu of maintenance would also be rendered meaningless, because there would hardly be a few cases where the instrument, decree, order or award giving property to a Hindu female at a partition or in lieu of maintenance would not contain a provision prescribing restricted estate in the property. The social purpose of the law would be frustrated and the reformist zeal underlying the statutory provision would be chilled. That surely could never have been the intention of the Legislature in enacting sub-section (2). It is an elementary rule of construction that no provision of a statute should be construed in isolation but it should be construed with reference to the context and in the light of other provisions of the statute so as, as far as possible, to make a consistent enactment of the whole statute. Sub-section (2) must, therefore, be read in the context of sub-section (1) so as to leave as large a scope for operation as possible to sub-section (1) and so read, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperties awarded to her. While the widow was in possession of the properties, the Act came into force and the question arose whether on the coming into force of the Act, she became full owner of the properties under subsection (1) or her estate in the properties remained a restricted one under sub-section (2) of section 14. This Court held that although the award gave a restricted estate to the widow in the properties allotted to her, it was subsection (1) which applied and not sub-section (2), because inter alia the properties given to her under the award were on the basis of a pre-existing right which she had as an heir off .her husband under the Hindu Women's Right to Property Act, 1937 and not as a new grant made for the first time. So also in Nirmal Chand v. Vidya Wanti (dead) by her legal representatives(C.A. No. 609 of 1965, decided on January 21, 1969.), there was a regular partition deed made on December 3, 1945 between Amin chand, a coparcener and Subhrai Bai, the widow of a deceased coparcener, under which a certain property was allotted to Subhrai Bai and it was specifically provided in the partition deed that Subhrai Bai would be entitled only to the user of the prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be held by the Hindu female, namely, as a restricted owner, that subsection (2) comes into play and excludes the applicability of sub-section (1). The object of sub-section (2), as pointed out by this Court in Badri Persad's case (supra) while quoting with approval the observations made by the Madras High Court in Rangaswami Naicker v. Chinnammal(A.I.R. 1964 Mad. 387), is "only to remove the disability of women imposed by law and not to interfere with contracts, grants or decree etc. by virtue of which a woman's right was restricted" and, therefore, where property is acquired by a Hindu female under the instrument in virtue of a pre-existing right, such as a right to obtain property on partition or a fight to maintenance and under the law as it stood prior to the enactment of the Act, she would have no more than limited interest in the property, a provision in the instrument giving her limited interest in the property would be merely by way of record or recognition of the true legal position and the restriction on her interest being a "disability imposed by law" would be wiped out and her limited interest would be enlarged under sub-section (1). But where prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it as a volunteer or with notice of her having set up a claim for maintenance". The courts have even gone to the length of taking the view that where a widow is in possession of any specific property for the purpose of her maintenance, a purchaser buying with notice of her claim is not entitled to possession of that property without first securing proper maintenance for her, vide Rachawa & Ors. v. Shivayanappa (I.L.R. 18 Bom. 679) cited with approval in Ranibai's case (supra). It is, therefore, clear that under the Sastric Hindu Law a widow has a right to be maintained out of joint family property and this right would ripen into a charge if the widow takes the necessary steps for having her maintenance ascertained and specifically Charged in the joint family property and even .if no specific charge i.s created, this right would be enforceable against joint family property in the hands of a volunteer or a purchaser taking it with notice of her claim. The right of the widow to be maintained is of course not a ]us in rein, since it does not give her any interest in the joint family property but it is certainly jus ad rem, i.e., a right against the joint family property. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truction of subsections (1) and (2) of section 14 on Principle and pointed out what in our view is the correct construction of these provisions. We may only mention that the judgment of Palekar, J., as he then was, in B.B. Patii v. Gangabai (supra) is a well reasoned judgment and it has our full approval. The contrary view taken in Gurunadham v. Sundarajulu,( I.L.R. (1968) 1 Mad. 487) Santhanam v. Subramania,(I.L.R. (1967) 1 Mad. 68) S. Kachapalava Gurukkal v. I7. Subramania Gurukkal(A.I.R. (1972) Mad. 279.), Shiva Pujan Rai v. Jamuna Missir,(I.L.R.. (1947) Pat. 1118) Gopisetti Kondaiah v. Gunda Subbarayudu(I.L.R. (1968) A.P. 621), Ram Jag Misir v. The Director Consolidation, U.p.(A.I.R. (1975) ALl. 151) and Ajab Singh v. Ram Singh (A.I.R. (1969) J & K 92.) does not, in our opinion, represent the correct law on the subject and these cases must be held to be wrongly decided. In the circumstances, we reach the conclusion that since in the present case the properties in question were acquired by the appellant under the compromise in lieu or satisfaction of her right of maintenance, it is sub-section (1 ) and not sub-section (2) of section 14 which would be applicable and hence the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st deed and sold some of the properties to defendant 4 by the second 'deed. The plaintiff/respondent filed a suit on July 31, 1961 before the District Munsiff, Nellore for a declaration that the alienation made by the widow Tulasamma were not binding on the plaintiff and could remain valid only till the life-time of the widow. The basis of the action filed by the plaintiff was that as the appellant Tulasamma had got a restricted estate only under the terms of the compromise her interest could not be enlarged into an absolute interest by the provisions of the 1956 Act in view of s. 14(2) of the said Act. The suit was contested by the appellant Tulasamma who denied the allegations made in the plaint and averred that by virtue of the provisions of the 1956 Act she had become the full owner of the properties with absolute right of alienation and the respondent had no locus standi to file the present suit. The learned Munsiff decreed the suit of the plaintiff holding that the appellant Tulasamma got merely a limited interest in the properties which could be enjoyed during her lifetime and that the alienations were not binding on the reversioner. Tulasamma then filed an appeal before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus: (1) whether the instrument of compromise under which the properties were given to the appellant Tulasamma before the 1956 Act in lieu of maintenance falls within s. 14(1) or is covered by s. 14(2) of the 1956, Act and (2) Whether a Hindu widow has a right to property in lieu of her maintenance, and if such a right is conferred on her subsequently by way of maintenance it would amount to mere recognition of a preexisting right or a conferment of new title so as to fall squarely within s. 14(2) of the 1956 Act. There appears to be serious divergence of judicial opinion on the subject and the High Courts have taken contrary views on this point. Some High Courts, particularly, Bombay, Punjab, Calcutta and Patna have veered round to the view that a right of maintenance claimed by a Hindu widow is a pre-existing right and any instrument or document or transaction by which the properties are allotted to the widow in lieu of her maintenance would only be recognition of a pre-existing right and would not confer any new title on the window. Following this line of reasoning the aforesaid High Courts have held that the properties allotted to the Hindu widow even though they conferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintain his wife and if he is possessed of properties then his wife is entitled as of right to be maintained out of such properties. The claim of a Hindu widow to be maintained is not an empty formality which is to be exercised as a matter of concession or indulgence, grace or gratis or generosity but is a valuable spiritual and moral right which flows from the spiritual and temporal relationship of the husband an wife. As the wife is in a sense a part of the body of her husband, she becomes co-owner of the property of her husband though in a subordinate sense. Although the right of maintenance does not per se create a legal charge on the property of her husband, yet the wife can enforce this right by moving the Court for passing a decree for maintenance by creating a charge. This right is available only so long as the wife continues to be chaste. Thus the position is that the right of maintenance may amount to a legal charge if such a charge is created either by an agreement between the parties or by decree. There are a number of authorities which have taken the view that even if the property is transferred and the transferee takes the property with notice of the right of the wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this charge being a legal incident of her marital co-ownership in all her husband's property ......But after his death, his widow's right of maintenance becomes limited to his estate, which, when it passes to any other heir, is charged with the same ......... There cannot be any doubt that under Hindu law the wife's or widow's maintenance is a legal charge on the husband's estate; but the Courts appear to hold, in consequence of the proper materials not being placed before them, that it is not so by itself, but is merely a claim against the husband's heir, or an equitable charge on his estate; hence the husband's debts are held to have priority, unless it is made a charge on the property by a decree." The view of the author appears to be that the Courts hold that the right of maintenance of a widow does not amount to a legal charge and this is so because proper materials were not placed before the Courts. In other words, the author seems to indicate that the original Hindu Law contained clear provisions that the right of! maintenance amounts to a charge on the property of her husband and the obligation runs; with the property so that any person who inherits the property also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... daughter-in-law does, with her husband, acquire a right to the ancestral property, since her marriage, but she becomes her husband's co-owner in a subordinate sense, and the principal legal incident of this ownership is the right to maintenance, which cannot be defeated by gift or devise made by the holder of such property. Similar observations have been made by the learned author at p. 528 of the book which may be extracted thus: "According to both the schools, the lawfully wedded wife acquires from the moment of her marriage a right to the property belonging to the husband at the, time and also to any property that may subsequently be acquired by him, so that she becomes a coowner of the husband, though her right is not co-equal to that of the husband, but a subordinate one, owing to her disability founded on her status of perpetual or life long tutelege or dependence. ............................. This right of the wife to maintenance from her husband is not lost even if the husband renounce Hinduism. This right subsists even after the husband's death although her husband's right as distinguished from hers may pass by suvivorship or by succession to sons or even to coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir children. The learned author observes thus: (p. 813). "The importance and extent of the right of maintenance necessarily arises from the theory of an undivided family. The head of such a family is bound to maintain its members, their wives and their children, to perform their ceremonies and to defray the expenses of their marriages;" Again at p. 816 para 684 the author stresses the fact that the maintenance of a wife is a matter of personal obligation on the part of the husband and observes thus: "The maintenance of a wife, aged parents and a minor son is a matter of personal obligation arising from the very existence of the relationship and quite independent of the possession of any property, ancestral or acquired ........ 'It is declared by Manu that the aged mother and father, the chaste wife and an infant child must be maintained even by doing a hundred misdeeds." Again it has been observed at p. 818 para 687: "The maintenance of a wife by her husband is, of course, a matter of personal obligation., which attaches from the moment of marriage." The author points out at p. 821 paragraph 689 that even after the coming into force of the Hindu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenance and Residence Act, 1946--hereinafter to be referred to as 'the Act of 1946'--which came into force on April 23, 1946. Thus there appears to be complete unanimity of the various schools of Hindu law on the important incidents and indicia of the Hindu women's right to maintenance which has now received statutory recognition and which only shows that the right to maintenance though not an indefeasible right to property is undoubtedly a pre-existing right. We shall now refer to some of the authorities which have dealt with this aspect of the matter. In Narayan Rao Ramchandra Pant v. Ramabai(L.R. 6 I.A. 114), the Judicial Committee pointed out that the widow's right to maintenance arises from the common law which developed from time to time. justice West of the Bombay High Court appears to have entered into a very elaborate discussion of the entire law on the subject in Lakshman Ramchandra Joshi and Anr. v. Satyabhamabai(I.L.R. 2 Bom. 494) and observed as follows: "These several authorities, no doubt, afford, in combination, a strong support to the proposition that a widow's maintenance, especially as against the sons, the a charge on the estate, a right in re in the full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the estate) over mere claims of a female member's maintenance, but, if either of these two obligations assumes the shape of a charge, it would take precedence over the other." In Pratapmull Agarwalla v. Dhanabati Bibi,(L.R. 63 1.A. 33) the Judicial Committee pointed out that while a mother may not be the owner of her share until partition is made and has no proexisting right with regard to the share in the property, but she has a pro-existing right for maintenance. This Court also has made similar observations in a large number of cases regarding the nature and extent of the Hindu women's right to maintenance. In Rani Bai v. Shri Yadunandan Ram & Artr ([1969] 3 S.C.R. 789) this Court, while dealing with a situation where a widow claimed the right of maintenance but refused to hand over possession of the property until she secured her proper maintenance, observed as follows: "It cannot be disputed that the appellant who is the widow of a pre-deceased son of Jangi Jogi was entitled to receive maintenance so long as she did not to marry out of the estate of her father-in-law. Although her claim for maintenance was not a charge upon the estate until it had been fixed and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Mitakshara refers to Apastamba's Dharmasutra as follows: "From marriage arises also jointness (sahatwam) in the holding of property (dravyaparagraphestiu)." In an earlier case Sarojinidevi v. Subrahmanyam,(I.L.R. 1945 Mad. 61) the Madras High Court held that even after the coming into force of the Hindu Women's Right to Property Act, 1937, which did not apply to agricultural lands, the right of the Hindu widow to maintenance stood in tact and the widow was entitled to maintenance notwithstanding her right under the Act to a share in the non-agricultural part of the family estate. To the same effect is an earlier decision of the Madras High Court in Jayanti Subbiah v. Alamelu Mangamma(I.L.R. 27 Mad. 45) where the High Court pointed out that under the Hindu Law the maintenance of a wife by her husband is a matter of personal obligation arising from the very existence of her relationship and quite independent of the possession by the husband of any property ancestral or selfacquired. We fully agree with this exposition of the law which is supported by a large number of authorities as discussed above. In Yella'wa v. Bhimangavda(I.L.R. 18 Bom. 452), the Bombay High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law that arises for consideration in this appeal. Before taking up that question, I might trace the historical growth of the legislation introducing slow and gradual changes in the Shastric Hindu from time to time. The exact origin of Hindu Law is steeped and shrouded in antiquity and, therefore, it is not possible to determine the ethics or Justification for assigning a somewhat subordinate position to a Hindu woman in matters of inheritance, marriage and the nature of the limited interest which she took even after inheriting her husband's property. It is also strange that the Hindu Law made no provision for divorce at all. This may be due to 'the fact that during the time of Manu and Yajnavalkya the structure of the Hindu society was quite different 'and there being no social problem of the magnitude that we have today, it was not considered necessary to break up the integrity and solidarity of a Hindu family by allowing ownership rights to the Hindu females. Another object may have been to .retain the family property within the family in order to consolidate the gains which a particular family may have made. However, these are matters of speculation. But one thing is dear, namel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in the Hindu Law. Even during the British times, there were certain legislation modifying certain provisions of the Hindu Law, e.g., the Hindu Law Inheritance Act which added a few more heirs including some females; the Hindu Women's Right to Property Act, 1937, which provided that on partition a widow would be entitled to the same share as the sons in the property of her husband. The Act of 1937, while giving a share to the wife on partition had not disturbed her right to claim maintenance which was preserved in tact and although she was not permitted to sue for partition she was undoubtedly entiled to sue for maintenance without having recourse to the remedy of partition. After independence the Parliament passed the Hindu Minority and Guardianship Act, 1956; the Hindu Adoptions and Maintenance Act, 1956; the Hindu Marriage Act, 1956 which regulated the law of marriage and divorce and ultimately the Hindu Succession Act, 1956 which provided for intestate succession. The Hindu Succession Act, 1956 was, therefore, undoubtedly a piece of social legislation which fulfilled a long felt need of the nation and was widely acclaimed by the entire people as would appear from the debates w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the share of the widow passed only an inchoate interest to her and she never came to possess the share within the meaning of s. 14 of the Act and therefore the property remained joint family property. This Court reversed the judgment of the High Court holding that once a preliminary decree was passed in favour of the widow granting her a share in the property she must be deemed to be in possession of the property in question. Their Lordships emphasised that the words "possessed by" used in s. 14(1) clearly indicated that such a situation was envisaged by the Legislature. White interpreting the provisions of s. 14 the Court also pointed out that the 1956 Act was a codifying enactment which had made far-reaching changes in the structure of the Hindu society and the object was to sweep away traditional limitations placed on the rights of the Hindu women. In this connection, the Court observed as follows: "The Act is a codifying enactment, and has made farreaching changes .in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be noticed that the Explanation to s. 14(1 ) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title however, restricted the nature of her interest may be .......... It does not in any way confer a title on the female Hindu where she did not in fact possess any vestige of title. It follows, therefore, that the section cannot be interpreted so as to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser. In other words, the provisions of s. 14( 1 ) of the Act cannot be attracted in the case of . a Hindu female who is in possession of the property of the last male holder on the date of the commencement of the Act when she is only a trespasser without any right to property." In Mangal Singh v. Smt. Ratno ( [1967] 3 S.C.R. 454.) a widow came into possession of her husband's property in 1917 and continued to be in possession of the same till 1954 when she was dispossessed by a collateral of her husband under the orders of the Revenue authorities. She filed a suit for recovery of possession and durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended this provision for eases where the Hindu female possesses the right of ownership of 'the property in question. Even mere physical possession of the property without the right of ownership will not attract the provisions of this section. This case, also, thus, supports our view that the expression "possessed by" was used in the sense of connoting state of ownership and, while the Hindu female possesses the right of ownership, she would become full owner if the other conditions mentioned in the section are fulfilled. The section will, however, not apply at all to cases where the Hindu female may have parted with her rights so as to place herself in a position where she could,. in no manner, exercise her rights of ownership in that property any longer." In Sukhram & Anr. v. Gauri Shanker &. Another([1968] 1 S.C.R. 476) the facts Were as follows: Hukam Singh and Sukh Ram were two brothers. Chidda, the second appellant was the son of Sukh Ram and thus Chidda, Hukam Singh and Sukh Ram were members of a joint Hindu family governed by the Benares School of Mitakshara Law. Hukam Singh died in 1952 leaving behind his widow Krishna Devi. On December 15, 1956, Krishna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, where once a. property is given to the widow in lieu of maintenance and she enters in_to possession of that property, no amount of restriction contained in the document can prevent her from acquiring absolute interest in the property because the contractual restriction cannot be higher than the old Hindu Shastric Law or the express words the Act of 1956. In Badri Prashad v. Smt. Kansa Devi([1970] 2 S.C.R. 95) the prepositer died in 1947 leaving behind five sons and a widow. Soon after his death disputes arose between the parties and the matter was referred to an arbitrator in 1950. The arbitrator in his award allotted shares to the parties wherein it was stated that the widow would only have widow's estate in those properties. While .the widow was in possession of the properties, the Act of 1956 came into force and the question arose whether or not she became full owner of the property or she only had a restricted interest as provided in the grant, namely, the award. This. Court held that although the award had given a restricted estate, but this was only a narration of the state of law as it existed when the award was made. As the widow, however, inherited the property und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Wanti. Subhrai Bai died and Vidya Wanti's name was mutated in the papers after coming into ,force of the Act of 1956. The point raised before the High Court was. that as Subbrai Bai had been given only a limited interest in the property she had no. power to bequeath the property to her daughter as her case was not covered by s. 14(1) but fell under s. 14(2) of the Act. This Court pointed out that at the time when the property was allotted to. Subbrai Bai, the Hindu Succession Act had. not come into force and according to the state of Hindu Law as it' then prevailed Subbrai Bai was undoubtedly entitled only to a limited interest. There was a restriction in the partition deed that Subhrai Bai would enjoy usufruct of the property only and shall not be entitled to, make any alienation. It was not a restriction as such but a mere. statement of law .as it then prevailed. Such a restriction, therefore,' would not bring the case of Subhrai Bai under s. 14(2) of the Act and, therefore, she would acquire an absolute interest after the passing of the Act of 1956 and was, therefore, competent to execute the will in favour of her daughter. This Court observed as follows: "If Subhrai Bai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where principle of s. 14(1 ) has to operate, i.e. to 'cases where a Hindu female would get an absolute interest. The argument of the learned counsel for the appellant is that as the right of maintenance was a pre-existing right, any instrument or transaction by which the property was allotted to the appellant would not be a new transaction so as to create a new title but would be only in recognition of a pre-existing right, namely, the right of maintenance. On the other hand Mr. Natesan appearing for the respondents submitted that the object of the proviso was to. validate rather than disturb the past transactions which had 131aced certain restrictions or curbs on the power of a Hindu female and as. the language of the proviso is very wide there is no warrant for not applying it to cases where pre-existing rights are concerned. In the alternative, Mr. Natesan argued that the Hindu woman's right to maintenance is not a legal right. unless an actual charge is created in respect of the property and is, therefore not enforceable at law. It is, therefore, not correct to describe a claim of a Hindu female's right to. maintenance simpliciter as a pre-existing right because all the necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sub-s. (2) clearly shows that it would apply only to such transactions which. are absolutely independent in nature and which are not in recognition of or in lieu of pre-existing rights. It appears from the Parliamentary Debates that when the Hindu Succession Bill, 1954, was referred to a Joint Committee by the Rajya Sabha, in s. 14(2) which was clause 16(2) of the Draft Bill of the Joint Committee, the words mentioned were only gift or will. Thus the intention of the Parliament was to confine sub-s. (2) only to two transactions, namely a gift or a will, which clearly would not include property received by a Hindu female in lieu of maintenance or at a partition. Subsequently, however, an amendment was proposed by one of the, members for adding other categories, namely, an instrument, decree, order or award which was accepted by the Government. This would show that the various terms, viz., gift, will, instrument, decree, order or award mentioned in s. 14(2) would have to. be read ejusdem generis so as refer to transactions where right is created for the first time in favour of the Hindu female. The intention of the Parliament in adding the other categories to sub-s. (2) was merel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime on the female Hindu, s. 14(1) would have no application. It seems to me that s. 14(2) is a salutary provision which has been incorporated by the Parliament for historical reasons in order to maintain the link between the Shastric Hindu Law and the Hindu Law which was sought to be changed by recent legislation, so that where a female Hindu became possessed of property not in virtue of any pre-existing right but otherwise, and the grantor chose to impose certain conditions on the grantee, the legislature did not want to interfere with such a transaction by obliterating or setting at naught the conditions imposed. There was some argument at the bar regarding the use of the term "'limited owner" in s. 14(1) and "restricted estate" in s. 14(2). Not much, however, turns upon this. I think that the Parliament advisedly used the expression "restricted estate" in s. 14(2), because while a limited interest would indicate only life estate, a restricted estate is much wider in its import. For instance, suppose a donor while giving the property to a Hindu female inserts a condition that she will have to pay ₹ 200/- to donor or to one of his relatives til ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he house which was in possession of Hira Bai. Hira Bai continued to be in possession of these properties right upto February 25, 1967. Meanwhile Nemgonda had died and his sons defendants 2 to 6 claimed the properties. After the death of Hira Bai, the plaintiffs, who were two out of the three daughters of Hira Bai, filed a suit for possession claiming entire title to the properties in possession of Hira Bai on the ground that Hira Bai was in possession of the properties as limited owner at the time of the passing of the Hindu Succession Act, 1956 and so her limited estate was enlarged into an absolute estate and the plaintiffs were, therefore, entitled to succeed to. her properties in preference to the reversioners. The suit was contested by defendants 2 to 6 mainly on the ground that as Hira Bai under the compromise was to retain only a life interest in the properties, her case would be covered by s. 14(2) of the Act and after her death the properties would revert to the reversioners. The Court held that as Hira Bai was put in possession of the properties in lieu of her maintenance, s. 14 (2) had no application, because the award merely recognised the pre-existing rights of Hira Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inally, the Judge observed as follows: "It appears to us that in the context of the Hindu widows the right to maintenance conferred under the Hindu Law is distinguishable in quality from her right to a share in the family property. That may well be the reason why the explanation to sub-section (1) of section 14 of the Act makes the female allottee of property "in lieu of maintenance" as much a limited owner as when the widow acquires "inheritance" or "at a partition". And if in the latter two cases it is conceded that sub-section (2) does not apply on the ground of antecedent right to the family properties, we do not see any rational justification to exclude a widow who has an equally sufficient claim over the family properties for her maintenance." Thus the following propositions emerge from a detailed discussion of this case: (1) that the widow's claim to maintenance is undoubtedly a tangible right though not an absolute right to property so as to become a fresh source of title. The claim for maintenance can, however, be made a charge on the joint family properties, and even if the properties are sold with the notice of the Said charge, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the view expressed by the Patna High Court and Andhra Pradesh High Court referred to above. Similarly in H. Venkanagouda v. Hanamangouda(A.I.R. 1972 Mys. 286.) the Mysore High Court adopted the view of the Bombay High Court in B.B. Patil v. Gangabai (supra) and dissented from the contrary view taken by the Madras and the Orissa High Courts. In our opinion, this decision seems to have correctly interpreted the provisions of s. 14(2) of the 1956 Act and has laid down the correct law. The view of the Madras High Court and the Orissa High Court which was dissented fro.m by the Mysore High Court is, in our opinion, legally erroneous and must be overruled. In Smt. Sharbati Devi v. Pt. Hira Lal & Anr.(A.I.R. 1964 Pb. 114) the Punjab High Court clearly held that application of s. 14(2) was limited to only those cases. where a female Hindu acquired a title for the first time, for otherwise the property acquired in lieu of maintenance even though conferring a limited estate fell clearly within the ambit of explanation to s. 14(1) of the Act and would, therefore, become the absolute property of the widow. Thus the Punjab High Court also fully favours the view taken by the Bombay, Patna, My ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplete agreement with the view taken by the Single Judge in Chellammal v. Nellammal (supra). and we overrule the Division Bench decision in S. Kachapalaya Gurukkal's case (supra). Thus all the decisions discussed above proceed on the right premises and have correctly.appreciated the nature and incidents of a Hindu woman's right to maintenance. They have also properly understood the import and applicability of s. 14(2) of the 1956 Act and have laid down correct law on the subject. We now deal with the authorities taking a contrary view. which, in our opinion, does not appear to. be the correct view. In Narayan Patra v. Tara Patrani([1970] 35 Cuttak L.T. 667=A.I.R. 1970 Orissa 131) the Orissa High Court, following a decision of the Andhra Pradesh High Court in G. Kondiah v.G. Subbarayya([1968] 2 Andh. W.R. 455.), held that since the widows were given only a restricted estate their case squarely fell within the ambit of s. 14(2) of the Act and their interest would not be enlarged. Reliance was also placed on a Madras decision in Thatha Gurunadharn Chetty v. Thatha Navaneethamma (supra). It is obvious that the conclusions arrived at by the High Court are not warranted by the express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicated above, the earlier decision of the Andhra Pradesh High Court in Gadam Reddayya v. Varapula Venkataraju took the same view which was taken later by the Bombay High Court and held that in a case like the present, a Hindu female would get an absolute interest and her case would not be covered by sub-s. (2) of s. 14 of the 1956 Act. In Gopisetti Kondaiah v. Gunda Subbarayudu( I.L.IR, [1968] A.P. 621) another Division Bench of the same High Court appears to have taken a contrary view. Jaganmohan Reddy, C.J., speaking for the Court observed as follows: "In so far as the right of a Hindu woman to maintenance is concerned, it is necessary at this stage to point out one other basic concept. A Hindu woman has a right to be maintained by her husband or from her husband's property or Hindu joint family property. But that is merely a right to receive maintenance out of the properties without in any way conferring on her any right, title or interest therein. It is not a definite right, but is capable of being made a charge on specific properties by agreement, decree of Court or award, compromise or otherwise ........ But this indefinite right, to be maintained from out of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly falls beyond the purview of s. 14(2) of the 1956 Act and, therefore, this authority does not lay down the correct law. We, therefore, do not approve of the view taken in this case and overrule the same. As regards the Madras High Court, the position appears to be almost the same. There also, while a single Judge took the same view as the Bombay High Court and held that s. 14(2) was not applicable, the Division Bench of the Court in an appeal against the order of another Single Judge took the contrary view. In S. Kachupalaya Gurukal v. Subramania Gurukkal (supra) the Court seems to draw an artificial distinction between a claim of a widow for maintenance and a pre-existing right possessed by her. According to the High Court, while a claim for maintenance simpliciter. was not a right at all, the right to get a share in the husband's property under the Hindu Women's Right to, Property Act, 1937 was a pre-existing right. The Madras High Court appears to have fallen into an error by misconceiving the scope and extent of a Hindu woman's right to maintenance. Secondly, it appears to have interpreted the proviso in such a manner as to destroy the effect of the main provision, nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of the property on the date when the Act was passed; (iv) similarly the Court failed to notice that sub-s. (2) of s. 14 would apply only where a new right is created for the first time by virtue of a gift, will etc. or the like executed in favour of the widow in respect of which she had no prior interest in the property at all. For instance, a daughter is given a limited interest in presence of the widow. Here the daughter not being an heir in presence of the widow (before the Hindu Succession Act came into force) she had, no fight or share in the property, and if she was allotted some property under any instrument, a new and fresh right was created in her favour for the first time which she never possessed. Such a case would be squarely covered by s. 14(2) of the Act. In Ram Jag Misir v. The Director of Consolidation, U.P.(A.I.R. 1975 All. 151) the same view has. been taken as the Madras High Court. This. case does not discuss the various aspects which have been pointed out by us and proceeds purely on the basis that as the widow acquired a restricted estate under the compromise., s. 14(2) would at once apply. It has not at all considered the decisions of this Court t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are not in a position to approve of the Full Bench decision of the Jammu & Kashmir High Court in Ajab Singh's case which. is hereby overruled. Thus on a careful scrutiny and analysis of the authorities discussed above, the position seems to be that the view taken by the High Courts of Bombay, Andhra Pradesh, Patna, Mysore, Punjab, Calcutta .and Kerala to the effect that the widow's claim to maintenance, even though granted to her subject to certain restrictions, is covered by s.14 (1) and not by sub-s. (2) is based on the following premises: (1) That the right of a Hindu widow to claim maintenance is undoubtedly a right against property though not a right to property. Such a right can mature into a full-fledged one if it is charged on the property either by an agreement or by a decree. Even otherwise, where a family possesses property, the husband, or in case of his. death, his heirs are burdened with the obligation to maintain the widow and, therefore, the widow's claim for maintenance is not an empty formality but a pre-existing right. (2) Section 14(2) which is in the nature of a proviso to s. 14(1) cannot be interpreted in a way so as to destroy the concept and defeat the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indu widow's claim for maintenance. It has been seen from. the discussion regarding the widow's claim for maintenance and her status in family that under the pure Sastric Hindu Law the widow is almost a co-owner of the properties with her husband and even before the Act of 1937 she was entitled to the share of a son on the death of her husband after partition according to some schools of Hindu Law. The Act of 1937 did not introduce any new right but merely gave a statutory recognition to the old Sastric Hindu Law on the subject. In this respect the Act of 1937 is very different from the Act of 1956, the latter of which has made. a revolutionary change in the Hindu Law and has changed the entire complexion and concept of Hindu women's estate. In these circumstances, therefore, if the widow's claim for maintenance or right to get the share of a son existed before the Act of 1937, it is futile to dub this! right as flowing from the Act of 1937. The second fallacy in this view is that the Court failed to consider that the. claim for maintenance is an important right which is granted to the widow under the Sastric Hindu Law which enjoins the husband to maintain his wife even if he has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ram Singh & Ors. of the Jammu & Kashmir High Court. Lastly strong reliance was placed by Mr. Natesan counsel for the respondents on a decision of this Court in Smt. Naraini Devi v. Smt. Ramo Devi & others(1976] 1 s.c.c. 574.) to which one of us (Fazal Ali, J.,) was a party. This case is no doubt directly in point and this Court by holding that where under an award an interest is created in favour of a widow that she should be entitled to rent out the property for her lifetime, it was held by this Court that this amounted to a restricted estate under s. 14(2) of the 1956 Act. Unfortunately the various aspects, namely, the nature and extent of the Hindu women's right to maintenance, the limited scope of sub-s. (2) which is a proviso. to. sub-s. (1 ) of s. 14 and the effect of the Explanation etc., to which we have adverted in this judgment, were. neither brought to our notice nor were argued before us in that case. Secondly, the ground on which this Court distinguished the earlier decision of this Court in Badri Parshad v. Smt. Kanso Devi (supra) was that in the aforesaid decision the Hindu widow had a share or interest in the house of her husband under the! Hindu Law as it was app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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) 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 s. 14(1) or in a way so as to become totally inconsistent with the main provision. (4) Sub-section (2) of s. 14 applies to instruments, decrees, awards, gifts etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise preexisting rights. In such cases a restricted estate in favour of a female is legally permissible and s. 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade in 1960 and 1961 were after she had acquired an absolute interest in the properties. It is, therefore, clear that the compromise by which the properties were allotted to the appellant Tulasamma in lieu of her maintenance were merely in recognition of her right to maintenance which was a pre-existing right and, therefore, the case of the appellant would be taken out of the ambit of s. 14(2) and would fail squarely within s. 14 (1) read with the Explanation thereto. Thus the appellant would acquire an absolute interest when she was in possession of the properties at the time when the 1956. Act came into force and any restrictions placed under the compromise would have to be completely ignored. This being the position, the High Court was in error in holding that the appellant Tulasamma would have only a limited interest in setting aside the alienations made by her. We are satisfied that the High Court decreed the suit of the plaintiffs on an erroneous view of the law. The result is that the appeal is allowed, the judgment and decree of the High Court are set aside, the judgment of the District Judge, Nellore. is hereby restored and the plaintiffs' suit is dismissed. In the pecul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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