V. TULASAMMA & ORS. versus V. SESHA REDDI (DEAD) BY L.RS.

V. TULASAMMA & ORS.

V. SESHA REDD! (DEAD) BY L. Rs.

March 17, 1977

(P. N. BHAGWATI, A. C. GUPTA AND S. MURTAZA FAZAL ALI, JJ.J

Hindu Succession Act, 1956-S. 14(1) and (2)-Scope of.

Section 14 ( !) of the Hindu Succession Act, 1956 proyides that "any property possessed by female Hindu! whether acquired before or after the commence-ment of the Act, shall be held by her as full owner thereof and \llOt as limited owner}' According to the explanation to this sub-section the term "property'' includes both movable and immovable property acquired by female Hindu in: Heu of maintenance or arrears of maintenance or in any other manner whatsoever. Sub-section (2) provides that nothing in sub-s. (!) shall apply to any property acquired by way of gift or under will or any other instrument which prescribes restricted estate in such property.

At the time of his death, the appellant's. husband, who was the1 brother of the respondent, lived in state of jointness with the respondent. On her husband's death the appellant filed petition for maintenance. The respondent entered into ·compromise with her, one of the terms of which was that the .appellant should enjoy during her life time certain properties given tOI her and on her death tbooe properties should revert to the respondent. The appellant sold some of the properties. The respondent sought declaration that under the terms of the compromise the appellant's interest, which was limited one, could not be enlarged into a~ absolute interest enabling her to sell the proper-.ties.

The District Munsiff decreed the suit. On appeal, the District Judge held that by virtue of the provisions of the 1956-Act, the appellant had acquired an absolute interest in the properties and that s. 14(2) had no application to the case because the compromise was an instrument in recognition of_ pre-existing right. The High Court. on the other hand, held that the compromise was an instrument contemplated by s.14(2) and the appellant could not get an absolute interest, under s.14(1); and that since her husband died even before the Hindu Women's Right to Property Act, 1937 came into force, she could not be said 10 have any pre-existing right because she had got the right for the first time under the compromise.

Allowing the appea1,

(Per Bhagwati and Gupta, JJ)

HELD : Since the properties were acquired by the appellant under the com-promise in lieu or satisfaction of her right to rnaintainance it is s. 14(1) and not •.14(2) which would be applicable. The appellant must be deemed to have become fuJJ owner of the properties notwithstanding that the compromise pres· cribed limited. interest in the properties. [274 C-D]

l. Under the Sastric Hindri ,Law widow has right to be maintiiined out of joint family prope·rtY and this right would ripen into charge if the \l/idoW took the necessary steps for having her maintenance ascertained and specifi· cally charged on the joint famiJy property and even if no specific charge were created, this right would be enforceable against joint family property i.11. the hands of volunteer or purchaser taking it with notice of her claim. The right of the widow to[1 ]be maintailled is not jus in rem, since it does not give any interest in the joint family property but it is jus ad ren1. When specific property is aJlotted to the widow in Jieu of her claim for mainfenance, the a11otment would be in satisfaction of her jus ad rem, namely, the rh~ht tO be maintained out of the joint family property. It would not be grant for the

first time without any pre-existing right in the widow. The widow would be getting the J?fOperty in. virtue of her pre-existing right, the instrument giving the property being merely document effectuating such pre-existing right. [273 A·Cl

2(a) Section 14(1) is large in its amplitude and covers every kind of acqui-sition of property by: female Hindu including acquisition in lieu of mainte-nance. Where such property was possessed by her at the date of commence-ment of the Act or was subsequently acquired and possessed, she would become tho full owner of the property. [268 G]

(b) The words "any property" are large enough to cover any and every kind of property but in order to expand the reach and ambit of the section anJ. 1nake it all-comprehensive, the Legislature has enacted the explanition. [268 BJ

( c) Whatever be the kind of property movable or immovalile and which-ever be· the mode of acquisition, it would be· covered by sub-s. ( 1), the object of the Legislature being to wiye out the disabilities from which Hindu female suffered in regard to ownership of property under the old Sastric Law, tOI abridge the stringent provisions against proprietary rights and to recognise her status as an independent and absolute owner of property. [268 D]

(d) In Gummalapura Taggina Matada Kottun1slviimi v. Setra Veeravi[1]a [1959] Supp. I SCR 968, this Court construed the word• "possessed of"" in broad sense and in their widest connotation to mean as "the state of owning or having in one's hand or power" which 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 other form re-D cognised by law. [268 E-F]

(e) Sub-section (2)~ which is in the nature· of proviso to sub-s.(1), excepts certain kinds of acquisition of property by Hindu female fron1 the operation of sub-s. (I). [269 Bl

(f) Sub-seetion (2), must be read in the context of sub-s.(1) to leave as large scope for operation as. possible to sub-s.(1). So read, it must be con-fined to cases where property is acquired by female Hindu for the fi~t time as grant without any pre-existing right under gift, will, instrument, decree. order or award, the terms of which prescribe restricted estate in the property. [269 HJ

(g) The legislative· intendment in enacting sub-s.(2) \Vas that this sub-section s.hould be applicable only to cases where the acquisition of property is n1ade by Ilindu female for the first time without any pre-existing right. Where, ho\vever, property is acquired by Hindu female at. partition or in lieu of her right toi maintenance it is fn virtue of _pre-existing right and such acquisition f.VOUld not_ b_e within the. scope and ambit of sub-s.(2) even if the instrument tllotting the property prescribes restricted estate in the property. Where pro-perty is acquire<;! by Hindu female under an instrument in virtue of pre-existing right such as right to obtain property on partition or right to maintenance and under the law as it stood prior to the enactment of the Act, she should have no m·ore than limited interest in the property 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 ¥1.terest being disability imposed by law would be wiped out awl ht:r limited interest would be enlarged under sub-s. (1). [270 D; 272 A-BlIn the instant case the appellant claimed maintenance out of the ioint family properties in the hands of her deceased husband's brother, and the claim was decreed and in execution of the decree the respondent entered into com-pron1ise and allotted properties tO her in lieu of her claim for maintenance. The appellant must in the circumstances be deemed to have become full owner of the properties notwithstanding that the compromise prescribed limited interest for her in the properties. It is sub-s.(1) and not sub-s.(2) of s. 14 \vhich must be helct to be applicable on these facts.

S. S. Munna Laf v. S. S. Rajkun1ar, [1962] Supp. 3 SCR 418 GurnmaTapura Teggina Matada Kotturaswami v. Setra Verrayva [1959] Supp. 1" SCR 96& Mangal Sb11?f1 v. Ratno, AIR 1967 SC 1786 Badri Pershad v. Sn1t. Kan~o Devi

[1970] 2 SCR 95 Nirmal Chand v. Vidya Wanti (dead) by her Legal represen· tatives. C.A. No. 609' of 1965, decided on January 21, 1969, Rani Bai v. Shd Yadunandan Ram, [1969] 3 SCR 789 referred to.

B. B. Patil, v. Gangabai, AIR J972 Born. 16, Sumeshwar Misra v. Swami Nath Tiwari AIR 1970 Pat. 348, Reddayya v. Varapula Venkatar~iu AIR 1965 A.P. 66, Lakshmi Devi v. Shankar Jha, AIR 1%7 Mad. 429, N. Venkanagouda v. Hanamangouda, AIR 1972 Mys. 286, Smt. Sharbati Devi v. Pt. Hiralal AIR 1964 Pb. 114, Sesadhar Chandra Dev. v. Smt. Tara Sundari Dasi, AIR. 1962 Cal. 438, Saraswathi Ammal v. Anantha Shenoi, AIR 1966 Ker. 66 nnd Kunii l'homman v. Meenakshi, !LR [1970] 2 Ker. 45 approved.

Gurunadham v, Sundaraiulu, /LR [1968] 1 Mad. 467 Sentlumam v. Subra-mania, !LR [1967] I Mad. 68, S. Kachapalaya Gurukkal v. V. Subramani Gurukkal, AIR 1972 Mad. 279 Shiva Puian 11.ai v. Jamune Missir, !LR [1947] Pat. 1118 Gopisetti Kondaiah v. Gunda Subbrayudu, !LR [1968] A.P. 621, Ram Jag Missir v. The Director of Consolidation, U.P. AIR 1975 All. 151 and Aiab Singh v. Ram Singh AIR 1959 J&K 92 not approved.

(per Fazal Ali, J concurring)

The High Court was in error in holding that the appellant would have only limited interest and in setting aside the alienations made by her. The com-promise by which the properties were· allotted to her in lieu of her mairitenance were merely in recognition of her pre-existing right of maintenance and, there-fore, her case would be taken out of the ambit of s. 14(2) and would fall with-ins. 14(1) read with the Explanation thereto. [311 GJ

The incidents and characteristics of Hindu woman's right to maintenance are:

(i) that Hindu womm's right to maintena·nce is personal obligation so far as the husband is concerned, and, it is his duty to maintain her even if he has no property. If the husband has property then the right of the widow to n1aintenance becomes an equitable charge on his property and any person v./ho suCteeds _ to the property carries with it the legal obligation to maintain the widow. [286 DJ

(ii) though the widow's right to maintenance is not right to property but it is pre-existing right in_ property, that is, it is jus ad reni and not jus in rem and it cannot be enforced by the· widow who can get charge created for the maintenance on the property either by an agreement or by obtaining decree from the civil court. [286 E]

(iii) that the right of maintenance is matter of moment ~ is of such importan.ce that even if the joint property is sold and the purchaser has notice of the widow's right to maintenance, the purchaser is legally bound to provide for her maintenance. [286 F]

(iv) that the right to maintenance is pre-existing right which existed in the Hindu law long before the passing of the Act of. 1937 or the Act of 1946, and is, therefore, pre-existing right. [286 G]

(v) that the right to maintenance flows from the social and temporal rela-tionship between the husband and the wife b~ virtue of which the wife becomes sort of co-owner in the property of her husband, though her co-ownership fs of ,a Eubordinate nature. [286 H]

(vi) that where Hindu widow is in possession of the property of her hus-band, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchases the same is tn position to make due arrangementS for her maintenance [287 A]

Digest of Hindu Law, Vol. II, pp. 121, 123 and 243 by Colebrooke. Hindu Law by Gopal Chandra Sarkar Sastri, p. 533. Treatise on Hindu Law & Usage by Mayne, 11th edn. pp. 684, 813, 816, 822, Hindu Law by Molla, p. 591.

J[1]larayan Rao Ramchandra Pant v. Ramabai, L.R. 6 I.A., 114, Lakshman Ramchandra Joshi & anr. v. Satyabhamabai, J.L.R. 2 Born. 494, Narbadabai v. Mahadeo Narayan, Kashinath Narayan and Shamabai, I.L.R. 5 Bom. 99, Mst. Dan Kaur v. Mst. Sar/a Devi, L.R. 73 I.A. 208, Pratapmull Agarwal/a v. Dhanabati Bibi, L.R. 63 I.A. 33, Rani Bai v. Shri Yadunandan Ram &: anr. [1969] 3 S.C.R. 789, Sheo Dayal Tewaree v. Judoonath Tewaree (1898] 9 W.R. 61, Srinath Das v. Prabodh Chunder Das, 11 C.L.J. 580, Hemangini Dasi v. Kedarnath Kundu Chowdhry l.L.R. 16 Cal. 758. K. V. Thangavdu v. The Court of Words, Madras [1946] 2 M.L.J. 143, Sarojinidevi v. Subrahmanyam J.L.R. 1945 Mad. 61, Jayanti Subbiah v. Alamelu Mangamma I.L.R. 27 Mad. 45 and Ye/lawa v. Bhimangavda J.L.R. 18 Born. 452 referred to.

An examination of the decisions of this Court establishes the following principles of law:

(i) that the provisions of s. 14 of the 1956 Act must be liberally construed in order to advance the object of the Act which is to enlarge the limited inte. rest possessed by Hindu widow which was in consonance with Lhe changing temper of the times; [295A]

(ii) it is manifestly clear that sub-s. (2) of s. 14 does not refer to any transfer which merely recognises prHxistin_g right without creating or con-ferring ne;v title on the widow. This was clearly held by this Court in Badri Pershad's case. [295B]

(iii) 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 long felt need and tried to do away with the invidious distinction between Hindu male and female in matters of intestate succession. ( I295C]

(iv) that sub-s., (2) of s. 14 is merely proviso to sub-s. (I) of s. 14 and has to be interpreted as proviso and not in manner so as to destroy the effect of the main provision. I295D]

Thus on conspectus of the Shastric Hindu Law, the provisions of the 1956-E Act and the decisions of this Court the following conclusions emerge:

1. Hindu female's right to maintenance is not an empty formality or an illusory claim but is tangible right against property which flows from spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such right n1ay not be right to property but is right against property and the husband has 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 charge is created for the maintenance of female, the said right becomes legally enforceable one. At any rate, even without charge the claim for maintenance is pre-existing right so that any transfer de.claring or recognising such right does not confer any new title but merely endorses or confirms the pre-existing rights. [310 BC]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 l OD]

3. Section 14(2) is in the nature of proviso and has field of its own without interfering with the operation of s. 14(1) materially. The proviso should not be construed in .manner so as to destroy the effect of the main provision or the protection granted by s. 14(1) or in way so as to become totally inconsistent with the main provision~ [310 E]

4. Section 14(2) 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, dedare or recognise· pre-existing rights. In such cases restricted estate in favour of female is legally permissible and s. 14(1) will not operate

in this sphere. Where, however, an instrument merely declares or recognises pre-existing right, such as to claim to maintenance .. or partition or share to, which the female· is entitled, the sub-section has absolutely no application and the female's limited interest would automatically be enlarged into an absolute -one by force of s. 14(1) and the restrictions placed, if any, under the document ·would have to be ignored. Thus where property is allotted or transferred to female in lieu of maintenance or share at partition, the instrum:erit is taken .out of the ambit of sub-s. (2) and would be governed by s. 14(1) despite any restrictions placed on the powers of the transferee. [310F-G]

~- The use of express terms like "property acquired by female Hindu at ·partition", "or in lieu of maintenance", "or arrears of maintenance" etc., in the Explanation to s·. 14(1) clearly makes sub-s. (2) inapplicable to these cate-gories which have been expressly excepted from the operation of sub-s. (2). f310H]

6. The words "possessed by" in s. 14(1) aro of the widest amplitude· and include th~ state of owning property even though the owner is not in actual or _physical possession of the same. Thus, where widow gets share in the pro-perty under preliminary decree before or at the time when the 1956-Act had been passed but had not been given actual possession under final decree, the property would be deemed to be possessed by her and by force of s. 14(1) she would get absolute interest in the property. It is equally well-settled' tha.t the possession of the widow, however, must be under some vestige of claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title. [311 A-Bl

7. That the words "restricted estate" used ins. 14(2) are wider than limited interest as indicated_in s. 14(1) and they include not only limited interest but a]s() any other kind of limitation that may be placed on the transferee. [311 CJ

In the instant case, the properties in dispute were allotted to the appellant under compromise certified by the Court. Secondly, the appellant had taken only life interest in the properties and there was clear restriction prohibiting her from alienating the properties. Thirdly, despite these restrictions, she conti-nued to be in possession of the properties till the alienations \Vhich she had made in 1960 and 1961 were after she had acquired an absolute interest in the properties.

Snu. Naraini Devi v. Smt. Ramo Devi & ors [1976] 1 S.C.C. 574 over-ruled.

S. S. Munnalal v. S. S. Rajkumar [1962] Supp. 3 S.C.R. 418; Eramma v. Verrupanna [1966] 2 S.C.R. 626; Mangal Singh v. Smt. Rattno [1967] 3 S.C.R. 454; Sukhram & anr. v. Gauri Shankar & anr. [1968] 1' S.C.R. 476; Badri Parshad v. Smt. Kanso Devi [1970] 2 S.C.R. 95 and Nirmal Chand v. Vidya Want/ (dead) by her Legal Representative C.A. 609 of 1966 decided on January 21, 1969 referred to.

B. B. Patil v. Gangabai A.LR. 1972 Born. 16; Gaddam Reddayya v . Varapu/a Venkataraju & Anr. A.LR. 1965 A.P. 66; Sumi!shwar Mishra v. Swami Nath Tiwari A.I.R. 1970 pat. 348; H. Venkanagouda v. Hansun1angouda A.LR. 1972 Mys. 286; Smt. Sharbati Devi v. Pt. Hirala/ & Anr. A.l.R. 1964 Punjab 114; Sasadhar Chandra Dev v. Snit. Tara Sundari Desi A.LR. 1962 Cal. 438, approved.

Nareyan Patra v. Tara Patrani [1970] 36 Cuttack Law Times-A.l.R. 1970 Drissa 131; Shiva Pujan Rai & Ors. v. Jamuna Missir & Ors. I.L.R. 47 Pat. 1118; Gopisetti Kondaiah v. Gunda Subbarayudu I.LR. [1968] A.P. 621; Ram Jag Misir v. The Director of Consolidation, U.P. AIR 1975 All. 151; Ajab Singh & Ors. v. Ram Singh & Ors. A.I.R. 1959 J, & K. 92; S11r1U1dham v. Sundararaju/u I.LR. [1968] 1 Mad. 567; Kachapalaya Gurukkal v. V. Subra-mania Gurukkal A.LR. 1972, Mad. 279 not approved.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1360 of 1968.

(Appeal by Special Leave from the Judgment and Order dated 22-11-1967 of the Andhra Pradesh High Court in Second Appeal No. 804/64).

T. S. Krishnamurthi Iyer, R. K. Pillai and R. Vasudev Pillai, for the appellants.

T. V. S. Narasimhachari, for the respondents.

The Judgment of P. N. Bhagwati and A.C. Gupta, JJ. was deliver-ed by Bhagwati, J. S. Murtaza Fazal Ali, J. gave separate opinion.

BHAGWATI, J.-We have had the advantage of reading the judgment prepared by our learned brother S. Murtaza Fazal Ali and we agree with the conclusion reached by him in that judgment but we would prefer to give our own reasons. The facts giving rise to the· appeal are set out clearly and ·succinctly in the judgment of our learned bro-ther and we do not think it necessary to reiterate them.

The short question that arises for determination in thi's appeal is as to whether it is sub-section (1) or sub-section (2) of section 14 of the Hindu Succession Act, 1956 that applies where property is given to Hindu female in lieu 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 case, her limited interest in the property is not enlarged and she continues to have the restricted estate prescribed by the fostrument. 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 unfor-tunate that though it became evident as far back as 1967 that sub-F sections (1) and (2) of section 14 were presenting serious difficulties of construction in cases where property was received by Hindu female in lieu of maintenance and the instrument granting such property prescribed restricted estate for her in the property and diver-gence of judicial opinion was creating situation which might well be described as chaotic, robbing the law of that modicum of certainty which if must always possess in order to guide the affairs of men. the legislature, for all these years, did not care to step in to remove the constructional dilemma facing the courts and adopted an attitude of indifference and inaction, untroubled and unmoved by the large number of cases on this point encumbering the files of different courts in the country, when by the simple expedient of an amendment, it could have silenced judicial conflict and put an end to needless liti-gation. This is classic instance of statutory provision which, by reason of its inapt draftsmanship, has created endless confusion for litigants and proved paradise for lawyers. It illustrates forcibly the need of an anthority or body to be set up by the Government or the Legislature which would constantly keep in touch with the adjudicatory

a~thorities in the country as also with the legal profession and imme-dmtely respond by making recommendations for suitable amendments whenever it is found that particular statutory provision is, by reason of mapt language or unhappy draftsmanship, creating difficulty of construction or is otherwise inadequate or defective or is not well conceived and is consequently counter-productive of the resultit was intended to achieve. If there is close inter-action between the adju-dicatory wing of the State and dynamic and ever alert authority or body which responds swiftly to the draw-backs and deficiencies in the law in action, much of the time and money, which is at present ex-pended in fruitless litigation, would be saved and law would achieve certain amount of clarity, certainty and simplicity which alone can make it easily intelligible to the people.

Since. the determination of the question in the appeal turns on the true interpretation to be placed on sub-section (2) read in the context of sub-section (1) of section 14 of the Hindu Succession Act, 1956, it would be convenient at this stage to set out both tbe ·sub-sections of that section which read as follows :

"14(1) Any property possessed by female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as limited owner.

Explanation.-In this sub-section, "property" includes both movable and immovable property acquired by female Hindu by inheritance or device, or at partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether relative or not, before, at or after her mar-riage, 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) sh~ll apply to any property acquired by way of gift or under will or any other instrument or under decree or order of civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe 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 Hindu female in property acquired by her and even as regards the nature of this restric-ted 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(') "to con-vert the interest which Hindu female has in property, however, res-tricted the nature of that interest under the Sastric Hindu law may be, into absolute estate". This Court pointed out that the Hindu Succes-sion Act, 1956 is codifying enactment and has made far-reaching changes in the structure of the Hindu law of inheritance, and succes-sion. The Act confers upon Hindu females full rights of inheritance

(!) [19621 Supp. 3 S.C.R. 418,

and sweeps away the traditional limitations on her powers of disposi-tion which were regarded under the Hindu law as inherent in her estate". Sub-section (1) of section 14, is wide in its scope and ambit and uses language of great amplitude. It says that any property pos-sessed by female Hindu, whether acquired before or after the com-mencement of the Act, shall be held by her as full owner thereof and not as limited owner. The words "any property" are, even with-.out any amplification, large enough to cover any and every kind of property, but in order to expand the reach and ambit of the section and make it all-comprehensive, the Legislature has enacted an explanation which says that property would include "both movable and immovable property acquired by female Hindu by inheritance or device, or at partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether relative- or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by pres-cription, or in any other manner whatever, and also any such property held by her as stridhana immediately before the commencement" of the Act. Whatever be the kind of property, movable or immovable, and whichever be the mode of acquisition, it would be covered by sub-section ( l) of section 14, the object of the Legislature being to wipe out the disabilities from which Hindu female suffered in regard to ownership of property under the old Sastric law, to abridge the strin-gent provisiO!lls against proprietary rights which were often regarded as evidence of her perpetual tutelege and to recongnize her status as an independent and absolute owner of property. This Court ha·s also in series of decisions given most expansive interpretation to the language of sub-section ( 1) of section 14 with view to advancing the social purpose of the legislation and as part of that process, cons-trued the word's 'possessed or also in broad sense and in their widest connotation. It was pointed out by this Court in Gummalepura Tag-gina Matada Kotturuswami v. Setra Veeravva(') that the words 'pos-sessed 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. Ela-borating the concept, this Court pointed out in Mangal Singh v. Rattno([2 ]) that the section covers all cases of property owned by female Hindu although she may not be in actual, physical or construc-tive possession of the property, provided of course, that she has not parted with her rights and is capable of obtaining po·ssession 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 pro-perty by female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of com-mencement 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 contain-ed in sub-section ( 1) shall apply to any property acquirea by way of gift or under will or any other instrument or under decree or order

(l) [19591 Supp. I S.C.R. 968.

(2) A.LR. 1967 S.C. 1786.

of civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe restncted estate in such property. This provision is more in the nature of proviso or exception to sub-section ( 1) and it was regarded as such by this Court in Badri Pershad v. Smt. Kanso Devi('). It excepts certain kinds of acquisition of property by Hindu female from the operation of sub-section (1) and being in the nature of an exception to provision which is calculated to achieve social purpose by bring-ing about change in the social and economic position of WQmen 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 (I). It cannot be interpreted in manner which would rob sub-section ( 1) of its efficacy and deprive Hindu female of the protection sought to be given to her by sub-section ( 1). Tlle langu-age of sub-section (2) is apparently wide to include acquisition of property by Hindu female under an i!lstrument or decree or order or award where the instrument, decree, order or award prescribes restricted estate for her in the property and this would apparently cover case where property is given to Hindu female at partition or in lieu of maintenance and the instrument, decree, order or award giving such property prescribes limited interest for her in the property. But that would virtually emasculate sub-section ( 1), for in that event, large number of cases where property is given to Hindu female at partition or in lieu of maintenance under an instrument, order or award would be excluded from the operation of the beneficent pro-vision enacted in sub-section (1), since in most of such case's, where property is allotted to the Hindu female prior to the enactment of the Act, there would be provision, in consonance with the old Sastric law then prevailing, prescribing limited interest in the property and where property is given to the Hindu female subsequent to the enact-ment of the Act, it would be the easiest thing for the dominant male to provide that the Hindu female shall have only restricted interest in the property and thus make mockery of sub-section (1). The Explanation to sub-section (I) which includes within the scope of that sub-section property acquired by female Hindu at partition or in lieu of maintenance would also be rendered meaningless, because there would hardly be few cases where the instrument, decree, order or award giving property to Hindu female at partition or in lieu of maintenance would not contain provision prescribing restricted estate in the property. The social purpose of the law would be frus-trated and the re(ormist zeal underlying the statutory provision would be chilled. That surely could never have been the intention of the Legislature in enacting sub-sectfon (2). It is an elementary rule of construction that no provision of statute should be construed in isola-tion but it should be construed witb reference to the context and in the light of other provisions of the statute so as, as far as possible, to make 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 scope for operation as possible to sub-section (1) and so read, it must be confined to cases where property is acquired by female Hindu for the first time as grant without any pre-existing

right, under gift, will, instrument, decree, order or award, the terms of which prescribe restricted estate in the property. This construc-tional approach finds support in the decision in Badri Prasad's case (supra) where this Court observed that sub-sectipn (2) "can come into operation only if acquisition in any of the methods enacted there-in is made for the first time without there being any pre-existing right in the female Hindu who is in possession of the property". It may also be noted that when the Hindu Succession Bill 1954, which ulti-mately culminated into the Act, was referred to Joint Committee of the Rajya Sabha, clause 15(2) of the Draft Bill, corre'!Ponding to the present sub-section (2) of section 14, referred only to acquisition of property by Hindu female under gift or will and it was subsequently that the other modes or acquisition were added so as to include acqui-sition of property under an instrument, decree, order or award. This circumstance would also seem to indicate that the legislative intend-ment was that sub-section (2) should be applicable only to cases where acquisition of property is made by Hindu female for the first time without any pre-existing right-a kind of acquisition akin to one under gilt or will. Where, however, property is acquired by Hindu female at partition or in lieu of right of maintenance, it is in virtue of pre-existing right and such an acquisition would not be within the scope and ambit of sub-section (2), even if the instrument, decree, order or award allotting the property prescribes restricted estate in the property.

This line of approach fn the construction of sub-section (2) of sec-tion 14 is amply borne out by the trend of judicial decisions in this Court. We may in this connection refer to the decision in Badri Parasad's case (supra). The facts in that case were that one Gajju Mal owning self-acquired properties died in 1947 leaving five sons and widow. On August 3, 1950, one Tulsi Ram Seth was appoint-ed by the parties as an arbitrator for resolving certain differences which had ari'sen relating to partition of the properties left by Gujju Mal. The arbitrator made his award on December 31, 1950 and under clause 6 of the award, the widow was awarded certain properties and it was expressly stated in the award that she would have widow's estate in the properties awarded to her. While the widow was in pos-session of the properties, the Act came into force and tne question arose whether on the coming into force of the Act, she became full owner of the properties under sub-section ( 1) or her estate in the properties remained restricted one under sub-section (2) of section 14. This Court held that although the award gave restricted estate to the widow in the propertie's allotted to her, it was sub-section (1) which applied and not sub-section (2), because inter alia the proper-ties given to her under the award were on the basis of pre-existing right which she had as an heir ci her husband under the Hindu Women's Right to Property Act, 1937 and not as new grant made for the first time. So also in Nirmal Chand v. Vidya Wanti (dead) by her leJ?al representatives([1]), there was regular partition deed made on December 3, 1945 between Amin chand, coparcener and

(1) C.A. No. 609 of 1965, decided on January 21, 1969.

Subhrai Bai, the widow of deceased coparcener, under which cer-tain property was allotted to Subhrai Bai and it was specifically pro-vided in the partition deed that Subhrai Bai would be entitled only to the user of the property and she would have no right to alienate it in any manner but would only have life interest. Subhrai Bai died in 1957 subsequent to the coming into force of the Act after making will b~queathing the property in favour of her daughter Vidyawati. The right of Subhrai Bai to bequeath the property by will was challen-ged on the ground that she had only limited interest in the property and her case was covered by sub-section (2) and not sub-section (1). This contention wa's negatived and it was held by this Court that though it was true that the instrument of partition prescribed only limited interest for Subhrai Bai in the property, that was in re~ognition of the legal position which then prevailed and hence it did not bring her case within the exception contained in sub-section (2) of section 14. This Court observed :

• "If Subhrai Bai was entitled to share in her husband's properties then the suit properties must be held to have been allotted to her in accordance with law. As the law tlien stood she had only life interest in the properties taken by her. Therefore the recital in the deed in question that she would have only life interest in the properties allotted to her share is merely recording the true legal position. Hence it is· not possible to conclude that the properties in question were given to her subject to the condition of her enjoying it for her life time. Therefore the trial court as well as the first Appellate Court were right in holding that the facts of the case do not fall withins. 14(2) of the Hindu Succession Act, 1955."

It will be seen from these observations that even though the property was acquired by Subhrai Bai under the instrument of partition, which gave only limited interest to her in the property, this Court held that the case fell within sub-section (1) and not sub-section (2). The reason obviously was that the property was given to Subhrai Bai in virtue of pre-existing right inhering in her and when the instrument of partition provided that s_he would only have limited interest in the property, it merely provided for something which even otherwise would have been the legal position under the law as it then stood. It is only when property is acquired by Hindu female as new grant for the first time and the instrument, decree, order or award giving the property prescribes the terms on which it is to be held by the Hindu female, namely, as restricted owner, that sub-section (2) comes into play arid 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 COjllrt in Rangaswami Naicker v. Chi1111ammal('), is "only to remove the disability of women imposed by law and not to interfere with ~ontraets, grants or decree etc. by virtue of which woman's right was restricted" and. therefore, where property is acquir-ed by Hindu female under the instrument in virtue of pre-existing

(I) A.LR. 1964 Mad. 387.

right, such as right to obtaiu property ou partitiou or right to maiuteuauce aud uuder the law as it stood priqr to the enactmeut of the Act, she would have uo more thau limited interest iu the property, provisiou iu the iustrumeut giviug her limited iuter~st iu the property would be merely by way of record or recoguitiou of the true legal posi· tiou aud the restrictiou ou her iuterest beiug "disability imposed by law" would be wiped out aud her limited iuterest would be eularged uuder sub-'sectiou ( 1). But where property is acquired by Hindu female uuder au iustrumeun for the first time without auy pre-existiug. right solely by virtue of the iustrumeut, she must hold it on the tenns ou which it is giveu to her aud if what is giveu to her is restricted estate, it would uot be enlarged by reasou of sub-sectiou (2). The controversy before us, therefore, boils dowu to the narrow questiou whether in the present case the properties were acquired by .the apoe!-lant uuder the compromise iu virtue of pre-existiug nght or !hey were acquired for the first time as grant owing its origiu to the compromise alone aud to uothing else.

Now, let us cousider how the properties iu questiou came to be acquired by the appellaut uuder the compromise. The appellant claimed maiuteuauce out of the joiut family properties iu the hands 'of the r_espondeut who was her deceased husbaud's brother. The claim was decreed iu favour of the appellaut aud iu execution of the decree for maiuteuance, the compromise was arrived at between the parties allotting the properties in question to the appellant for her maiutenance and giving her limited interest in such properties. Si nee the properties were allotted to the appellaut in lieu of her claim for maintenance, it becomes uecessary to consider the nature of the nght which Hiudu widow has to be maintaiued out of joint family estate. It fa settled law that widow is entitled to maintenance out of her deceased husbaud's estate, irrespective whether that estate may be it< the hands of his male issue or it may be iu the hands of his copar-ceners. The joint family estate in which her deceased husbaud had share is liable for her maiutenauce and she has right to be main-tained out of the joint family properties and though, as pointed out by this Court in Rani Bai v. Shri Yadunanden Ram,([1]) her claim for maintenance is not charge upon any joint family property uutil she has got her maintenauce determiued and made specific charge either by agreement or decree or order of court, her right is "not liable to be defeated except by transfer to bona fide purchaser for value without uotice of her claim or even with uotice of the claim uu\ess the transfer was made with the intention of defeating her ri~ht". The widow can for the purpose of her maintenance follow the joint family property "into the hands of any oue who takes it as volun-teer or with uotice of her having set up claim for maintenance". The courts ha\!\! even gone to the length of taking the view that where widow is in possession of any specific property for the purpose of her maintenance, purchaser buying with uotice of her claim is not entitled to possession of that property without first securing proper m')ointeuance for her, vide Rachawa & Ors. v. Shiva:ranappa([2 ]) cited with approval iu Ranibai's case (supra). It is, therefore, clear

(I) [19691 3 S.C.R. 789. (2) I.L.R. 18 Born. 679.

that under the Sastric Hindn Law widow has right to be maintained out of joint family property and this right would ripen fufo' 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 is created, this right would be enforceable against ioint family property in the hands of volunteer or pur-chaser taking it with notice of her claim. The right of the widow to be maintained is of course not jus in rem, since it does not give · her any interest in the joint family property but it is certainly jus ad rem, i.e., right against the joint family prop~rty. Therefore, when specific property is allotted to the widow in lieu of her claim for main-tenance, the allotment would be in satisfaction of her jus ad rem, namely, the right to be maintained out of the joint family property. It would not be grant for the first time without any pre-existing right in the widow. The widow would be getting the property in virtue of . her pre-existing right, the instrument giving the property being merely document effectuating such pre-existing right and not making grant of the property to her for the first time without any antecedent right or title. There is also another consideration which is very relevant to this issue and it is that, even if the instrument were silent as to the nature of the interest given to the widow in the property and did not, in so many terms, prescribe that she would have limited interest, she would have no more than limited interest in the property Ul)der the Hindu Jaw as it stood prior to the enactment of the Act and hence provision in the instrument prescribing that she would have only limited interest in. the property would be, to quote the word's of this Court in Nirmal Chand's case (snpra), "mere-ly recording the true legal position" and that would not attract the applicability of sub-section (2) but would be governed by sub-section ( 1) of section 14. The conclusion is, therefore, inescapable that where property is allotted to a. widow under an instrument, decree, order or award prescribes restricted estate for her in the property and sub-section (2) of section 14 would have no application in such case. '

We firid that there are several High Courts which have taken the same view which we are taking in the present case. We may men-tion only few of those decisions, namely, B. B. Patil v. Gangabai([1]), Sumeshwar Misra v. Swami Nath Tiwari,([2 ]) Reddayya v. Varapula Venkataraju,(') Lakshmi Devi v. Shankar Jha(4), N. Venkanegouda v. Hanemangouda,(') Smf. Sharbati Devi v. Pt. Hiralal,([6 ]) Sesadhar Chandra Dev v. Smt. Tara Sundari Dasi,([7 ]) Saraswathi Ammal v. Anantha Shenoi([8]) and Kunji Thomman v. Meenakshi([9]). It is

(!)A.LR. (1972) Bom. 16

(2) A.LR. (1970) Pat. 348.

(3) A.LR. (1965) .A.P. 66

(4) A.LR. (1967) Mad. 429.

(5) A.LR. (1972) Mys. 286.

(6) A.LR. (1964) Pub. 114.

(7) A.LR. (1962) cal. 438.

(8) A.LR. (1966) Ker. 56.

(9) I.L.R. (1970) 2 Ker. 45,

3- 436SCI/77

not necessary to refer to these decisions since we have ourselves dis-cussed the question of construction of sub-sections (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. Patil v. Ganga-bai (supra) is well reasoned iudgment and it has our full approval. The contrary view taken in Gurunadham v. Sundarajulu,(') Santha-nam v. Subramania,(2) S. Kachapalava Gurukkal v. V. Subramania Gurukkal([3]), Shiva Pujan Rai v. Jamuna Missir,([4 ]) Gopisetti Kon-daiah v. Gunda Subbarayudu('), Ram Jag Misir v. The Director of Consolidation, U.P.(") and Ajab Singh v. Ram Singh ([7]) 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 appell-ant under the compromise in lieu or satisfaction of her right of main-tenance, it is sub-section (1) and not sub-section (2) of section 14 which would be applicable and hence the appellant must be deemed to have become full owner of the properties notwithstanding that the compromise prescribed limited interest for her in his properties. We accordingly allow the appeal, set aside the judgment and decree of the High Court and restore that of the District Judge, Nellore. The result is that the suit will stand dismissed but with no order as to costs. !"::

FAzAL ALI, J. This is defendant's appeal by special leave against the judgment of the High Court of Andhra Pradesh dated November 22, 1967 and arises in the following circumstances.

Venkatasubba Reddy, husband of appellant No. 1 Vaddeboyina Tulasamma-hereinafter to be referred to as 'Tnlasamma'-died in the year 1931 in state of jointness with his step brother V. Sesha Reddy and left behind Tulasamma as his widow. On October 11, 1944 the appellant Tulasamma filed petition for mainteruii:ice in forma pauperis against the respondent in the Court of the District Munsif, Nellore. This application 'Was set e:xi parte on January 13, 1945 but subsequently th~tition was registered as suit and an ex parte decree was pass against the r~ndent on June 29, l 946. On Oc-tober 1, 1946 the respondent fil an interlocutory application for re-cording compromise alleged to have been arrived at between the parties out of Court on April 9, 1945. The appellant Tulasamma opposed this application which was ultimately dismissed on October 16, 1946. An appeal filed by the respondent to the District Judge, Nellore was also dismissed. Thereafter Tulasamma put the decree in

(I) I.L.R. (1968) 1 Mad. 487.

(2) I.L.R. (1%7) 1 Mad. 68.

(3) A.I.R. (1972) Mad. 279.

(4) I.L.R. (1947) Pat. 1118.

(5) I.L.R. (1968) A.P. 621.

(6) A.I.R. (1975) All. 151.

(7) A.1.R. (1969) J & K 9!

execution and at the execution stage the parties appear to have arrived at settlement out of Court which was certified by the Executing Court on July 30, 1949 under O. XXI r. 2 of the Code of Civil Pro-cedure. Under the compromise the appellant Tulasamma was allotted the. Schedule properties, but was to enjoy only limited interest there-in with no power of alienation at all. According to the tenns of the compromise the properties were to revert to the plaintiff after the death of Tulasamma. Subsequently Tulasamma continued to remain in possession of th<:l properties even after coming into force of the Hindu Succession Act, 1956-hereinafter to be referred to as 'the 1956 Act, or 'the Act of 1956'. By two registered deeds dated April 12, 1960 and May 26, 1961, the appellant leased out some of the properties to defendants 2 & 3 by the first deed and sold some of the properties to defendant 4 by the second deed. The plaintiff/resIJon-dent filed suit on July 31, 1961 before the District Munsiff, Nellore for 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 restricted estate only under the tenns 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 thf11956 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 appell1mt Tulasan1ma got merely limited interest in the properties which could be enjoyed during her lifetime and that the alienations were not bind-ing on the reversioner. Tulasamma then filed an appeal before the District Judge Nellore, who reversed the finding of the Trial Court, allowed the appeal and dismissed the plaintiff's snit holding that the appellant Tulasamma had acquired an absolute interest in the proper-ties by virtne of the provisions 0£ the 1956 Act. The learned Judge further held that sub-s. (2) of s. 14 had no application to the present case, because the compromise was an instrument iu recognition of pre-existing right. The plaintiff/respandent went up in second appeal to the High Court against the judgment of the District Judge. The plea of the plaintiff/respondent appears to have found favour with the High Court which held that the case of the appellant was clearly covered by s. 14 (2) of the Hindu Succession Act and as the compro-mise was an instrument as contemplated bys. 14(2) of the 1956 Act Tulasamma could not get an absolute interest under s. 14(1) of the Act. The High Court further held that by virtue 0£ the compromise the appellant Tufasamma got title to the properties for the first time and it was not question of recognising pre-existing right which she had none in view of the fact that her husband had died even before the Hindu Women's Right to Property Act, 1937. We might further add that the facts narrated above have not been disputed by counsel for the parties.

The appeal has been argued only on the snb~tantial questions of law which tum upon the interpretation of sub-ss. (1) & (2) of s. 14

of the Hindn Succession Act, 1956. It is common ground that in this case as also in the other connected appeals, the properties in suit were allotted under compromise or an instrument in lieu of maintenance. It is also admitted that the appellant Tulasamma was in possession of the properties at the time when the 1956 Act came into force. Finally it is also not disputed that the compromise did purport to confer only limited interest on the widow restricting completely her power of alienation. We have now to apply the law on the facts mentioned above. Similar points were involved in the other two appeals Nos. 135 of 1973 and 126 of 1972. We have heard all the three appeals together and in all these appeals counsel for the parti.es have confined their arguments only to the questions of law without disputing the findings of fact arrived at by the Courts below.

Thus the two points that fall for determination in this appeal may be stated 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 Hindu widow has right to property in lieu of her maintenance, and if such right is conferred on her subsequently by way of maintenance it would amount to mere recognition of pre-E existing right or conferment of new title so as to fall squarely within s. 14(2) of the 1956 Act.

There appears to be serious divergence of iudicial 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 right of maintenance claimed by Hindu widow is pre-existing right and any instrument or docu-F ment or transaction by which the properties are allotted to· the widow in lieu of her maintenance would on\y be recognition of 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 proper-ties allotted to the Hindu widow even though they conferred limited interest would fall clearly within !he ambit of s. 14(1) of the 1956 Act by virtue o~ which the limited interest would be enlarged inio an absolute interest on the coming into force of the 1956 Act. On the other hand the Orissa, Allahabad, Madras and Andhra Pradesh High Courts have tak;en contrary view and have held that as the Hindu widow's right tQ maintenance is not right to property, property allotted to her in lieu of maintenance confers on her right or title to the property for 'the first time and therefore such conferment is protected bys. 14(2) of 'the 1956 Act and is not covered bys. 14(1). Unfor-tunately, howe~er, there is no decision of this Court which is directly in point, though there are some decisions which tend to support the 1view taken by the Bombay High Court.

Before, however, resolving this important dispute it may be neces-sary to consider the real legal nature of the incident of Hindu widow's right to maintenance. In order to determine this factor we have to look to the concept of ffindu marriage. Under the Shastric Hindu Law, marriage, unlike marriage under the Mohammadan Law which is purely contractual in nature, is sacrament-a religious ceremony which results in sacred and holy union of man and wife by virtue of which the wife is completely transplanted in the house-hold of her husband and takes new birth as partner of her husband becoming part and parcel of the! body of the husband. To-a Hindu wife her husband is her God and her life becomes one of selfless ser-vice and unstinted devotion and profound dedication to her husband. She not only shares the life and love the joys and sorrows, the troubles and tribulations of her husband but becomes an integral part of her husband's life and activities. Colebrooke in his book 'Digest of Hindu Law' Vol. II describeS'th~ status of wife at p. 158 thus:

"A wife is considered as half the body of her husband, equally sharing the fruit of pure and impure acts; whether she ascend "the pile after him, or survive for the benefit of her husband, she is faithful wife."

This being the position after marriage, it is manifest that the law en-joins corresponding duty on the husband to maintain his wife and look after her comforts and to provide her food and raiments. It is well settled that under the ffindu1Law the husband has got personal obligation to maintain his wife and if he is possessed of properties then his wife is entitled as of right to be maintained out of such pro-perties. The claim of Hindu widow to be maintained is not an empty formality which is to be .exercised as matter of concession or indulgence, grace or gratis or generosity but is valuable spiritual and moral right which flows from the spiritual and temporal relationship of the husband and wife. As the wife is in serue part of the body of her husband, she becomes co-owner of the proPerty of her husband though in subordinate sense. Although the right of maintenance does not per se create legal charge on the proPerty of her husband, yet the wife can enforce this right by moving the Court for passing decree for maintenance by creating 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 legal charge if such ,charge is created either by anl agreement between t.he parties or by decree.

There are number of authorities which have taken the view that even if the property is transferred and the tramferee takes the property with notice of the right of the widow to be maintained out of the pro-perty, the purchaser takes the obligation to maintain the widow out of the property purchased and the wife or. w!dow can follow the pro~erty in the hands of the purchaser for the limited purpose of her mainte-nance. We shall, however, deal with these authorities little later.

278 • SUPREME COURT REPORTS

Colebrooke in his 'Digest of Hindu L,iw', Vol. II, quotes the Maha-bharata at p. 121 thus : _ .

"Where females are honoured, there the deities are pleased; but where they are unhonoirred, there all religious acts become fruitless." · .

This clearly illustrates the high position which is bestoweil on ;Hindu . women, by the Shastric Law. Again Colebfooke in his book Vol. II at p. 123, while describing the circumstances under which the mainte-nance is to be given to the wife, quotes Manu thus :

"MANU :--Should man have bnsiness abroad, Jet him assure fit maintenance to his wife, and then reside for time in foreign country; since wife, even thouglt virtuous, may be tempted to act amiss, if she be distressed by want of subsistence : ·

While her husband, having settled her maintenance, · resides abroad, let her continue firm in religious austerities; but if he leave no support, Jet her subsist by spinning and other blameless arts."

settled her maintenance, ·

This extract clearly shows that there is legal obligation on the part of the husband to make arrangements for his wife's due maintenance even if he goes abroad for business purposes. Colebrooke again quotes Yajnawalkya at p. 243 of his book Vol. thus:

"When the father makes an equal partition among his .sons, his wives must have equal shares with them, if they have received no wealth either from their lord or from his father.

If he makes an equal partition among his sons by his own choice, he must give equal shares to such of his wives also_ as bave·no·maJe issue.'~-· ' . _ F. This shows that when partition is effected, the Hindu Law enjoins that the wife must get an equal share with the sons, thus reinforcing the important character of the right of maintenance which Hindu wife or widow pOJSesses undet the Hindu Law. . ·.

Similarly Gopalchandra Sarkiir Sastri dealing with the nature and incidents of the Hindu widow's right to maintenance observes in his treatise 'Hindu Law' at p. 533 thus : ·

"When the husband is alive, he is personally liable for the wife's maintenance, which is also legal charge upon, his pro-perty, this charge being 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 legal charge on the husband's estate; but the ·courts appear to hold,

in consequence o! the proper materials not being placed be-fore them, that it is not so by itself, but is merely claim against the husband's heir, or an equitable charge on his es-tate; hence the husband's debts are held to have priority, un-less it is made charge on the property by decree."

The view of the author appears to be that .the Courts hold that the right of maintenance of widow does not amount to legal charge and this is so because proper materials werenot 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 charge on tj:ie property of her husband and the obligation runs with the property so that any person who inherits the property also takes upon the obligation to maintain the widow. Sastri quotes from the original texts various extracts regarding the nature and extent o~ the right of maintenance of the Hindu women some of which may be extracted thus :

"The support of the group of persons who should be maintained, is the approved means of attaining heaven, but hell is the man's portion if they suffer; therefore he should carefully maintain them. ·

The father, the mother, the Guru (an elderly relation worthy of respect), wife, an offspring, poor dependants, guest, and religious mendicant are declared to be the group of persons who are to be maintained.-Manu, cited in Sn-krishna's commentary on the Dayabhaga, ii, 23.

It is declared by' Manu that the aged mother and father, the chaste wife, and an infant child must be maintained even by doing hundred misdeeds,-Manu cited in the Mitak-shara while dealing with gifts."

The last extract clearly shows the imperative nature of the duty im-posed on the owner of the property to maintain wife, aged mother, father etc. even at the cost of perpetrating hundred misdeeds. ·

Similarly Sastri in his book quotes Yajnavalkya at p. 523 thus

"Property other than what is required for the mainten-ance of the family may be given."'

The learned author highlights the importance of the right of maintenance as being charge on the property of the \husband and observes as follows :

"The ancestral immovable property is the hereditary source of maintenance of the members of the family, and the same is charged with the liability of supporting its members, all of whom acquire right to such property from the moment they become members of the family, by virtue of which they are at least entitled to maintenance out of the same. Such

property cannot be sold or given away except for the· sup-port of the family; small portion of the same may be alien-. ated, if not incompatible with the support of the family.

There &s no difference between the two schools as re-gards the view that the ancestral property is charged with the maintenance of the members of the family, and that no alienation can be made, which will 'prejudicially affect the support of the group of persons who ought to be maintained. Hence heirs are bound to maintain those whom the last holder Was bound to maintain."

The author further points out that under the Mitakshara law the <laugher-in-law does, with her husband, acquire right to the ancestral property, since her marriage, but, she becomes her husband's co-owner in subordinate sense, and the principal legal incident of this owner-ship 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 ~- extracted thus· : '

"According to both the schools, the lawfully wedded. wife acquires from the moment of her marriage 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 co-owner of the husband, though her right is not co-equal to that of the husband, but subordinate one, owing to her disability founded on her status of perpe-tual 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 al-. though her husband's right as distinguished from hers Illl!Y pass by suvivorship or by succession to. sons or even to collaterals; these simply step into the position of her hus-band, and she is required by Hindu law to live under their guardianship after her husband's death."

Finally it is pointed out by the . learned author at p. 529 of the Book that the right which woman acquires to her husband's property subsists even after his death and observed thus : "According to both the schools, the right which woman acquires to her husband's property subsists after his death, whether his interest passes by succession or by survivorship to the male issue or any other person, and that this right does not depend upon the widow's not possessing other means of support."

Summarising the nature of the liability of the husband to main-tain his wife, the learned author observed as follows at p. 533 of his Book :

"When the husband is alive, he is personally liable for the wife's maintenance, which is also legal charge /upon his property, this charge being legal incident of her marital co-0wnership 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 mainten-ance is legal charge on the husband's estate; but ilie Courts appear to hold, in consequence of the proper mate-rials not being placed before them, that it is not so by itself, but is merely claim against the husband's heir, or an equi-table charge on his estate; hence the husband's debts are held to have priority, unless it is made charge on the pro-perty by decree."

To sump up, therefore, according to· Sastri's interpretation of Shast1ic Hindu Law the right to maintenance possessed by Hindu widow is very important right which amounts to charge on the property of her husband which continues to the successor of the pro-perty and the wife is regarded as sort of co-owner of the husband's property though in subordinate sense, i.e. the wife has no dominion over the property. Similarly Mayne in his "Treatise on Hindu Law & Usage", 11th Edn., has traced the history and origin of the right of maintenance of Hindu woman which according to him arises from the theory of an undivided family where the head bf the family, is bound to maintain the members including their wives and their children. The. learned author observes thus : (p. 813).

"The importance and extent of the right of maintenance necessarily arises from the theory of au undivided family. The head of such 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 wife is matter of personal obligation on the part of the husband and observes thus :

"The maintenance of wife, aged parents and minor son is 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 Mann that the aged mother and father, the chaste wife and an infant child must be maintained even by doing hundred misdeeds."

Again it has been observed at p. 818 para 687

"The maintenance of wife by her husband is, of course, matter of personal obligation, which attaches from the moment of marriage." ·

• The author points out at p. 821 paragraph 689 that even after the comi~g into force of the Hindu Women's Right to Property Act, 1937 which confers upon the widow right of succession in respect of the non-agricultural property, she is still entitled to maintenance from the family property. The author observes thus :

''It cannot, therefore, be said that the reason of the right has ceased to exist and the right is gone. It was accord-ingly held that the widow of deceased coparcener is still entitled to maintenance notwithstanding her right under the Act to share in the non-agricultural part of the family estate." Furthermore, the anthor cites the passage of Narada cited in Smriti Chandrika regarding which there is no dispute. The saying runs thus :

"Whichever wife (patni) becomes widow and continues virtuous, she is entitled to be provided with food and rai-ment."

At p. 822 para 690 the author points out that the right of widow to be maintained is taken over even by the heirs of the husband who succeed to his property either by inheritance or by survivorship. In this connection the following observations are made :

"She is entitled to be maintained where her husband's separate property is taken by his male issue. Where, at the time of his death, he was coparcener she is entitled to maintenance as against those who take her husband's share by survivorship,"

The Hindu law is so jealous in guarding the interests of Hindu women that the obligation for maintaining the Hindu wbinen falls even on the King when he takes the estate by escheat or by forfeiture,

Similarly Mulla in his book "Hindu Law", 14th Edu., describes the incidents and characteristics of Hindu wife's right to maintenance 'G and observes thus at p. 597 :

"A wife is entitled to be maintained by her husband, whether he possesses property or not. When man with his eyes open marries girl accustomed to certain style of living, he undertakes the obligation of maintaining her in that style. The maintenance of wife by her husband is matter of personal obligation arising from the very exist-ence of the relationship, and quite indepeudent of the posses-sion by the husband of any property, ancestral or self-acquired."

We might further mention that the Hindu women's right to maintenance finally received statutory recognition and the entire law on the subject was consolidated and codified by the Hindu Married Women's Right to Separate Maintenance and Residence Act, 19~6-hereinafter to be referred to as 'the Act of 1946'-which came into force on April 23, 1946. Thus there appea1s to be complete unanimity of the various ~chools of Hindu law on the important incidents and indicia of the Hindu women's right to maintenance which lras now received statutory recognition and which only shows that the right to maintenance though not an indefeasible right to property is undoubtedly pre-existing right. We shall now refer to some of the authorities which have dealt with thiJ aspect of the matter.

In Narayan Rao Ramchandra Pant v. Ramabai('), the Judicial Committee pointed out that the widow's right to maintenance arises from the common 1'aw which developed from time to time. Justice West of the Bombay High Court appears to have entered into very elaborate discussion of the entire law on the subject in Lakshman Ramchandra Joshi and Anr. v. Satyabhamabai(") and observed as follows:

"These several authorities, no doubt, afford, in combi-nation, strong support to the proposition that widow's maintenance, especially as against the sons, the charge on the estate, right in re in the fullest sense adhering to the property, into whatever !rands it may pass."

These observations were reiterated in later case in Narbadabai v, Mahadeo Narayan, Kashinath Narayan and Shamabai([3]). The obser-vations of West J., in Lakshman Ramchandra Joshi and Anr's case (supra) were fully 'approved by the Judicial Committee in Mst. Dan Kuer v. Mst. Sar/a Devi('), where it was observed :

"Rut, apart from this circumstance, the judgment of West J., whose dissertations on Hindu Law must always com-mand great esteem, contains an exposition of the law on this point, and the rose is therefore rightly regarded as lead-ing authority on the question. In the course of his judgment that learned judge quotes with approval the remark~ of Phear J., in Srimati Bhagabati v. Kanailal Mitter-(1872) 8 Ben. L.R. 225-that "as against one who lras taken the property as heir, the widow has right to have proper sum for her maintenance ascertained and made charge on the property in his hands. She may 'also, doubtless, follow the property for this purpose into the hands of anyone who takes it as volunteer, or with notice of her having set up claim for maintenance against the heir" and that "when the property(1) L.R. 6 I.A. 114.

(2) l.L.R. 2 Born. 494.

(3) I.L.R. 5 Born. 99. (4) L.R. 73 I.A. 208.

passed into the hands of bona fide pnrchaser without notice, it cannot be affected by anything short of an already exist-ing proprietary right; it cannot be subject to that which is not already specific charge, or which does not contain all the clements necessary for its ripening into specific charge." .

Summarising the entire position the Privy Council enunciated the law thus:

"The true rule of Hindu law in such matters would appear to be as follows : Two obligations confront join~t Hindu family. (!) The obligation to pay the debts (for instance, of the father) binding on the family; and (2) the moral ob-ligation "to provide maintenance to the widows of the family." The latter obligation would, under certain circum-stances, ripen into legal obligation, as, for instance, when charge is created on specific property of the fumily either by agreement or decree of the court; that, so long as neither of these two obligations has taken the form of charge on the family property, the obligation to pay the binding debts will have precedence (as, for instance, in the course of the administration of the estate) over mere claims of female member's maintenance, but, if either of these two obligations assumes the shape of charge, it would tab precedence over the other."

In Pratapmull Aga1Wal/a v. Dhanabati Bibi,(') the Judicial Commit-tee pointed out that while mother may not be the owner of her share until partition is made and has no pre-exi.Sting right with regard to the share in the property, but she has pre-existing right for main-tenance. This Court also has made similar observations in large number of cases regarding the nature and extent of the Hindu women's right to maintenance. In Rani Bai v. Sh~i Yadunandan Ram & nr, (') this Court, while dealing with situation where 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 pre-deceased son of Jangi Jogi was entitled to receive maintenance so long as she did not re-marry out of the estate of her father-in-Jaw. Although her claim for maintenance wa·s not charge upon the estate until it had been fixed and specificaily charged thereupon her right was not liable to be defeated except by transfer to bona fide purchaser for value without notice of claim or even with notice of 'l claim unless the transfer was made wiith the in-tention of defeating her right. The courts in India have taken the view that where widow is in posse,;sion of specific property for the purpose of her maintenance pur-chaser buying with notice of her claim is not ·entitled to

(I) L.R. 63 I.A. 33.

(2) [1969] 3 S.C.R. 789.

possession of that property without first securing proper maintenance for her : [vide Rachawa & others v. Shiva-yogappa-I. L. R. 18 Born. 679] ...... In the present case it is difficult to understand how the appellant could be deprived of the possession of properties by trespasser. Moreover she was presumably in possession of these pro-perties in lieu of her right of maintenance and could not be deprived of them even by Jugli Bai without first securing proper maintenance for her out of the aforesaid properties."

In Sheo Dyal Tewaree v. Judoonath Tewaree,(') the Calcutta ltigh Court stressed the fact that although the widow may not be the owner of share but she had pre-existing right of maintenance.

Elucidating the nature and extent of right of Hindu wife to maintenance, the Calcutta High Court pointed out in S~inath Das v. Probodh ChulU!er Das(') than the right of maintenance is really identified with the husband's property right though of subordinate nature.

In Hemangini Dasi v. Kedarnath Kundu Chowdhury([3 ]) the Privy Council held that if the estate remained joint and undivided the maintenance of the mother remained charge on the whole estate and that any share that the widow took in the property which was equal to ihe share of son was really in lieu of maintenance for which the e5tate was liable. The position has been very succinctly stated and meticulously analysed by decision of the Madras High Court in K. V. _Thanga-velu v. The Court of Wards, Madras,(') where, dealing with the entire history of the matter and relying on various original texts of the Hindu jurists, the Madras High Court pointed out that cogent ground for preferring the widow's claim is to be found in her quali-fied or subordinate co-ownership in the husband's property declared by the Mitakshara. The Court referred to verse 52 of Vyavahara-dhaya (chapter II) where the Mitakshara refers to Afjastamba's Dharmasutra as follows :

"From marriage arises also jointness ( sahatwam) in the holding of property ( dravyaparagraphestiu) ."

In an earlier case Sarojnidevi v. Subrahmanyam,([5 ]) 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 notwith-standing her right under the Act to share in the non-agricultnral part of the family estate. To the same effect is an earlier decision

(1) (1868) 9 W.R. 61. (2) 11 C.L.J. 580. (3) I.L.R. 16 cal. 768. (4) (1946) 2 M.L.J. 143. (5) I.L.R. 1945 Mad. 61.

of the Madras High Court in Jayanti Subbiah v. Alamelu Man-gamma(') where the High Court pointed out that under the Hindu Law the maintenance of wife by her husband is matter of per-sonal obligation arising from the very existence of her relationship and quite independent of the possession by the husband of any pro-perty ancestral or self-acquired. We fully agree with this exposition of the law which is supported by large number of authorities as discussed above.

In Yella'wa v. Bhimangavda([2]), the Bombay High Court was of the view that even the heir of the husband's property could not be allowed to recover possession from the widow without first mak-ing proper arrangements for her maintenance. This case was ap-proved by this Court in Rani Bai's case (supra).

Thus on careful consideration and detailed analysis of the authorities mentioned above and the Shastric Hindu Law on the sub-ject, the following propositions emerge with respect to the Incidents and characteristics of Hindu woman's right to maintenance :

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

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

(3) that the right of maintenance is matter of moment and is of such importance that even if the ioint pro-perty is sold and the purchaser ha' notice of the widow's right to maintenance, the purcha,er is legally bound to provide for her maintenance;

( 4) that the ri!!ht to maintenance is undouhte<llv pre-existing right which existed in the Hindu l,aw long before the passing of the Act of 1937 or •he Act of 1946, and is, therefore, pre-existing right;

( 5) that the right to maintenance flows from the wcial and temporal relationshin between the hu•band and the wife by virtue of which the wife becomes sort

(1) I.L.R. 27 Mad. 45.

(2) I.L.R. 18 Bom. 452.

v. TULASAMMA v. V. SESHA REDD! (Fazal Ali, J.)

of co-owner in the property of her husband, though her co-ownership is of subordinate nature; and

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

With this preface regarding. Hindu woman's right to mainten-ance and the necessary concomitants and incidents of those rights, we now proceed to determine the question of law that arises for con-sideration 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 Law from time to time. The exact origm of Hindu Law is steeped and shrOjUded in antiquity and, therefore, it is not possible to determine the ethics or justification for assigning somewhat subordinate position to Hindu woman in matters of inheritance, marriage and the nature of the Iimitep 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 Yaj-navalkya 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 soli-darity of Hindu family by allowing ownership rights to the Hindu females. Another object may have been to retain the famjly pro-perty within the family in order to consolidate the gains which particular family may have made. However, these are matters of speculation. But one thing is clear, namely, that the Hindu jurists were very particular in making stringent provisions safeguarding the maintenance of the Hindu females either by the husband or even by his heirs after his death. Perhaps they thought that the property which widow may receive in lieu of maintenance or the expenses which may be incurred for her maintenance would be good substi-F tute for the share which she might inherit in her husbfod's pro-perty. Nevertheless, t!)e Legislature appears to have stepped in from time to time to soften the rigours of the personal law of Hindus by adding new heirs, conferring new rights on Hindu femafes and making express provisions for adoption, maintenance etc. It appears that the question of conferring absolute interest on the Hiridu female had engaged the attention of the Legislature ever since 1941 but the idea took tangible shape only in 1954 when the Hindu Succes-sion Bill was introduced and eventually passed in 1956. This Bill was preceded by Hindu Code Committee headed by Mr. B. N. Ran who had made number of recommendations which formed the basis of the 1956 Act.

After the attainment of independence, the entire perspective changed, the nature of old human values assumed new complexion and the need for emancipation of womanhood from feudal bondage became all the more iniperative. Under the strain and stress of

socio-economic conditions and continuous agitation by the female Hindus for enlargement of their rights new look to the rights of women as provided by. the Shastric Hindu Law had to be given. I.n pursuance of these social pressures, it was necessary to set up new social order where the women should be given place of honour and equality with the male sex in every other respect. This was the prime need of the hour and the temper of the times dictated the imperative necessity of making revolutionary changes in the Hindu Law in order to abolish the invidious distinction in matters of inheri-tance between male and female. Similarly it was realised that there should be express provision for divorce on certain specified grounds inasmuch as the absence of such provision had perpetrated serious injustice to the Hindu females for long time. It seems to me that it was with this object in view that the Legir;lature of our free country thought it as its primary duty to bring forth legislation to remove the dangerous anomalies appearing in the Hindu taw. Even during the British times, there were certain legislation modify-ing certain provisions of the Hindu Law, e.g., the Hindu Law Inheri-tance Act which added few more heirs including some females; the Hindu Women's Right to Property Act, 193 7, which provided that on partition widow would be entitled to the same share as the sons in the property of her husband. The Act of 1937, while giving 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 Guardian-ship 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 pro-vided for intestate succession. The Hindu Succession Act, 1956 was, therefore, undoubtedly piece of social legislation which fulfilled long felt need of the nation and was widely acclaimed by the entire people as would appear from the debates which preceded the passing of the Act.

It is in the light of these circumstances that we have now to in-terpret the provisions of s. 14(1) & (2) of the Act of 1956. Section 14 of the 1956 Act runs thus :

"14. (1) Any property possessed by female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as limited owner.

Explanation.-In: this ~uh-section, "property" includes both movable and immovable property acquirect by female Hindu by inheritance or devise, or at partition, or in lieu of maintenance or arrears of maintenance, or by gift from any per$on, whether relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase

or by prescription, or in any other manner whatsoever, and also an.y such property held by her as stridhana immediate-ly before the c.ommencement of this Act.

(2) Nothing contained in sub-section ( 1) shall apply to any property acquired by way of gift or under will or any other instrument or under decree or order of civil court or under an award where the {erms of the gift, will or other instrument or the decree, order or award prescribe restricted estate in such property."

This Court has interpreted the scope and ambit of s. 14(1) and the Explanation thereto on several occasions and has pointed out that the object of the legislation was to make revolutionary and far-reaching changes in the entire structure of the Hindu society. The word "pas-sessed" used in s. 14(1) has also been interpreted by this Court and it has been hdd that the word has been used in very wide sense so as to 1lld~de the st•ate of owning or having the property in one's power and it is not necessary for the application of s. 14( 1) that Hindu woman should be in actual or physical possession of the property. It is sufficient if she bas right to the property and the said property is in her power or domain. In S. S. Munnalal v. S. S. Rajkumar(') it was held that mere declaration of the share of the widow passed only an of her share under preliminary decree would fall within the ambit of s. 14(1) and even though the widow did not get actual possession of the property until final decree is passed she would in law be deemed to be in possession of the proper,ty. In that case, the High Court had lteld that mere declaration of 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 G,ourt reversed the judgment of the High Court holding that once preliminary decree was passed in favour of the widow granting her share in the property she must be deemed to be in possession of the property· in question. Their Lordships emphasised that the words "possessed b'y" used in s. 14(1) clearly indiCllted that such situation was envisaged by the Legislature. While interpreting the provisions of s. 14 the Court also pointed out that the 1956 Act was codifying enactment which had made far-reaching changes in the structure of the Hindu society aiid the object was to sweep away traditional limitations placed on the rights of the Hindu women. Jn this connection, the Court observed as follows :

"The Act is codifying enactment, and has made far-reaching changes in the structure of the Hindu law of inheri-tance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate .......... . Normally right declared in an estate by preliminary decree would be regarded as property, and there is nothing in the context in which s. 14 occurs or in the phraseology

(1) [1962] Supp. 3 S.C.R. 418.

4-436SCI/77

used by the Legislature to warrant the view that such right declared in relation to the estate of joint family in favour of Hindu widow is not property within the · meaning of s. 14. In the light of the scheme of the Act and its evolved purpose it would be difficult, without doing violence to the language used in the enactment, to assume that right de-clared in property in favour of person under decree for partition is not right to property. If under preliminary decree the right in favour of Hindu male be regarded as property the right declared in favour of Hindu female must also be regarded as property.

Earlier the Court observed in that very case as under :

"By s. 14 ( 1) the Legislature sought to convert the interest of Hindu fell1'ale which under the Sastric Hindu Jaw would have been regarded as limited interest into an absolute interest •and by the explanation thereto gave to the expression "property" the widest connotation. The expression includes property acquired by Hindu female by inheritance or de-vise, or at partition, or in lieu of maintenance or arrears of maintenanse, or by gift from any person, whether relative or not, before, at or after her marriage or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever. By s. 14(1) manifestly it is intended to conve.rt the interest which Hindu female bas in property however restricted "the nature of that interest under the Sastric Hindu law may be into absolute estate."

The matter was again considered by this Court in Eramma v. Ver-rupan1111 (') where it was held that before widow can get absolute interest under s. 14 (1) she must have some vestige of title, i.e. her possession must be under some title or right and not be that of rank trespasser. In this connection the Court observed as follows :

"The property possessed by female Hindu, as contem-plated in the section, is clearly property to which she has acquired some kind of title whether before or after the com-mencement of the Act. It may be noticed that the Explana-tion to s. 14 (1) sets out the various modes of acquisition of the property by female Hindu and indicates that the section applies only to property to which the female Hindu ha' acquired some k;nd of title however. restricted the nature of her interest may be .......... It does not in any way confer 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 female Hindu and it does not confer any tfrle on mere trespasser. Jn other words. the provisions of s. 14( I) of the Act cannot be attracted in the case of Hindu female who is in possession of the property _of the last

(I) [1956] 2 S.C.R. 626.

v. TULASAMMA v. v. SESHA REDD! (Fazal Ali, J.) 291

male holder on the date of the commencement of the Act when ·she is only trespasser without any right to property."

Jn Mangat Singh v. Smt. Rattio(') widow came into possession of her husband's property in 1917 and continued to be in possession <>f the same till 1954 when she was dispossessed by collateral of her husband under the orders of the Re,venue authorities. She filed suit for recovery of possession and during the pendency of the suit the Act of 1956 came into force. This Court upholding the judgment of the High Court held that the dispossession of the widow being illegal, she must be deemed to be, in the eye of law, to continue in possession of the properties and acquired an absolute mterest with the coming into force of the Act of 1956. It was not case where Hindu female had parted with her right so as to place herself in position where she could in no manner exercise her rights iri that property any longer when the Act came into force. This Court observed as follows :"It is signifiC'ant that the Legislature begins s. 14 ( 1) with the words "any property possessed by female Hindu" and not "any property in possession of female Hindu." If the expression used had been "in possession of" instead of "possessed by'', the proper interpretation would probably have been to hold that, in order to apply this provision, the pro-perty must be such as is either in actual possession of the female Hindu or in her constructive possession. The con-structive possession may be through lessee, mortgagee, licensee, etc. The use of the expression "possessed by" instead of the expression "in possession of", in our opinion, was intended to enlarge the meaning of this expression. It is commonly known in English language that property is said to be possessed by 'a person, if he is its owner, even though he may, for the time being, be out of actual possession or even constructive possession."

"It appears to us that the expression used ins. 14(1) of the Act was intended to cover cases of possession in law also. where lands may have descended to female Hindu and she hoas not actually entered into them. It would of course cover the other cases of actual or constructive possession. On the language of s. 14(1), therefore, we hold that this provision will become applicable to any property which is owned by female Hindu, even though she is not in actual physical or constructive possession of that property." •

Again, while referring to an earlier case, namely, Eramma v. Verrupanna (supra), the Court clarified the position Thus :

"This case also, thus, clarifies that the . expression "'possessed by" is not intended to apply to case of mere possession without title, and that the legislature intended this J?rDVision far ca~es where the Hindu female possesses _ ___t!l."_nght of owqership of the property in question. Even (1) [19671 3 s.c.R. 454.

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 condi-tions 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 position where she could, in no manner, exercise her rights of ownership in that property any longer."

In Sukhram & Anr. v. Gauri Shanker & Another(') 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 joint Hindu family govern-ed by the Benares Sch_ool of Mitakshara Law. Hukam Singh died in 1952 leaving behind his widow Krishna Devi. On December 15, 1956, Krishna Devi sold half share of the house belonging to the joint family. This sale was challenged by the other members of the joint family on the gronnd that Krishna Devi had merely life interest. The question raised was whether Krishna Devi acquired an absolute interest in the properties after coming into force of the Hindu Succession Act, 1956. [t was argued before this Court that according to the Benaras School, .E male coparcener was not entitled to alienate even for value his undivided interest in the coparcenary without the consent of other co-parccners and, therefore, Krishna Devi could not have higher rights than what her husband possessed. This Conrt, however, held that in view of the express words of.s. 14 of the 1956 Act, once the widow was possessed of property before or after the commencement of the Act, she held it as full owner and not as limited owner and, therefore, any restriction placed by Shastric Hindu Law was wiped out by the legis-lative intent as expressed in the Act of 1956. The Court observed thus:

"But the words of s. 14 of the Hindu Succession Act are express and explicit; thereby female Hindu possessed of · property whether acquired before or after the commencement of the Act holds it as full owner and not as limited owner. The interest to which Krishna Devi became e.ntitled on the death of her husband nnder s. 3(2) of the Hindn Women's Right to Prope!'ly Act, 1937, in the property of the joint family is indisputably her "property" within the meaning of s. 14 of Act 30 of 1956, and when she became "full owner" of that property she acquired right unlimited in point of user and duration and uninhibited in point of disposition."

(!) [19681 I S.C.R. 476.

This case indirectly supports the view that if the intention of the Legislature was to confer absolute interest on the widow, no limitation can be spelt out either from. the old Shastric Law or otherwise which may be allowed to defeat the intention. This Court went to the extent of holding that the words in s. 14 ( 1) are so express and explicit that the widow acquired right unlimited in point of user, though male member governed by the Benaras school had. no power of alienation without the consent of other coparceners. Under the Act the female had higher powers than the male because the words of the statute did not contain any limitation at all. On the parity of reasoning, there-fore, where once property is given to the widow in lieu of mainten-ance and she enters into 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 can-not be higher than the old Hindu Shastric Law or the express words of the Act of 1956.

In Badri Prashad v. Smt. Kanso Devi(!) the prepositer died in 194 7 leaving behind five sons and 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 pro-perties, the Act of 1956 came into force and the question arose whet-her or not she became full owner of the property or she only had restricted interest as provided in the grant, namely, the award. This Court held that although the award had given restricted, estate, but this was only narration of the state of law as it existed when the award was made. As the widow, however, inherited the property under the Hindu Women's Right to Property Act, her interest be~ came absolute with the passing of the Act of 195 6 and she squarely fell within the provisions of s. 14 ( 1) of the Act. It was further held that th.e mere fact that the partition was by means of an award would not bring the matter withins. 14(2) of the Act, because the interest given to the widow was on the basis of pre-existing right and not new grant for the first time. This Court observed as follows :

"The word "acquired" in sub-s. ( 1) has also to be given the widest possible meaning. This would be so because of the language of the Explanation which takes sub-s. (1) ap-plicable to acquisition of property by inheritance or devise or at partition or in lieu of maintenance or arrears of maintenance or by gift or by female's own skill or exertion or by purchase or prescription or in any manner whatsoever. Where at the commencement of the Act female, Hindu has share in ioint properties which are later on partitioned by metes and bounds and she gets possession of the properties al!otted to her there can be no manner of doubt that she is not only possessed of that property at th~ time of the comirig into force of the Act but has also acquired the same before its commencement."

(1) [1970] 7. S.C.R. 95.

This Court relied upon two earlier decisions : viz., S. S. · Munnalal's case and Sukhram's case (supra). This case appears to be. nearest to the point which falls for determination in this appeal, though it does not cover the points argued before us directly.

Lastly our attention was drawn to an unreported decision of this. Court in Nirmal Chand v. Vidya Wanti (dead) by her legal represen-tatives(') in which case Amin Chand and Lakhmi Chand were the owners of agricultural and non-agricultural properties. The properties were partitioned in the year 1944 and Lakhmi Chand died leaving be-hind him the appellant and his second wife Subhrai Bai and his- daughter by this, wife. There was regular partition between Amin Chand and Subhrai Bai by registered document dated December 3, 1945 under . which portion of the property was allotted to Subhrai Bai and it was proYided in the document that Subhrai Bai would be entitled only to the user of the land and she will have no right to alienate it in any manner but will have only life interest. Later, Subhrai Bai bequeathed the property in 1957 to her daughter Vidya Wanti. Subhrai Bai died and Vidya Wanti's name was mutated in the papers alter coming into force. of the Act of 1956. The point raised before the High Court was tljat as Subhrai Bai had been given only 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 Subhrai Bai, the Hindu Succession Act had not come into force and according to the state of, Hindu Law as it then prevailed Subhrai Bai was undoubtedly entitled only to limited interest. There was 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 restriction as such but mere statement oll law as it then prevailed. Such 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 was entitled to share in her husband's properties then the suit properties must be held to have been allotted to her .in accordance with law. As the law then stood she had only life interest in the properties taken by her. Therefore the recital in the deed in question that she would have only life interest in the properties allotted to her share is merely recording the true legal position. Hence it is not possible to conclude that the properties in question were given to her subject to the condition of her enjoying it for her lifetime. Therefore the trial court as well as the first Ap-pellate Court were right in holding that the facts of the case do not fall within s. 14(2) of the Hindu Succession Act, 1956.

In the light of the above decisions of this Court the following prin• ciplcs appea1' to be clear :

(1) C.A. No. 609of1965 decided on Jan. 21, 1969.

(1) that the provisions of s. 14 of the l 956 Act must be liberally construed in order to advance the object of the Act which is to enlarge the limited interest pos-sessed by Hindu widow which was in consonance with the changing temper of the times;

(2) it is manifestly clear that sub-s. (2) of s. 14 does not refer to any transfer which merely recognises pre-existing right withont creating or conferring new title on the widow. This was. clearly held by this Court in Badri· Parshad's case (supra).

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

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

We· have given our anxious consideration to the language of s. 14(1) & (2) and we feel that on proper interpretation of s. 14(2) there does not appeaii to be any real inconsistency betweens. 14(1), the explanation thereto and sub-s. (2). To begin with, s. 14(1) does not limit the enlargement of the estate of Hindu widow to any particular interest in the property. On the other hand the Explanation to s. 14 ( 1) brings out thereal purpose of s. 14 (1) by giving an exhaus-tive category of cases where principle of s. 14(1) has to operate, i.e. to cases where Hindu female would get an absolute interest. The argument of the learned counsel for the appellant is that as the right of maintenance was pre-existing right, any instrument or transaction by which the property was allotted to the appellant would not be new transaction so as to create new title but would be only in recoQ'llition of pre-existing right, namely, the right of maintenance. On the other hand Mr. Natesan aooearing for the resoondents submitted that the object of the proviso was to validate rather than disturb the past transactions which had placed certain restrictions or curbs on the power of Hindu female and as the language of the proviso is very wide there is no warrant for not aoolying it to cases where pre-existin" riohts are concerned .. In the altema_tiye, Mr. Natesan argued that the Hindu woman's right to maintenance is not leeal right unless an actual charge is created in respect of the property and is, therefore. not en-forceable. at law. It is, therefore, not correct to describe cl"i"' of Hindu female's right to maintenance ~implicitPr as pre-existing right because all the necessary indicia of legal right are wanting.

After considering various aspects of the matter we are inclined to agree with the contentions rnised by Mr. Krishna Murthv Iyer aonear-jng for the appellant. In the first place, the appellant's contention

appears to be more in consonance with the spirit and object of the statute itself. Secondly, we have. already pointed out that the claim of Hindu female for maintenance is undoubtedly pre-existing right and this has been so held not only by various Courts in India but also by the Judicial Committee of the Privy Council and by this Court. It seems to us, and it has been held as discussed above, that the claim or the right to maintenance possessed by Hindu female is really substitute for share which she would have got in the property of her husband. This being the position, where Hindu female who gets share in her husband's property acquires an absolute interest by virtue of s. 14(1) of the Act, could it be intended by the legislature •that in the same circumstances Hindu female who could not get. share but has right of maintenance would not get an absolute interest? In other words, the position would be that the appellant would suffer because her husband had died prior to the Act of 1937. If the hus-band of the appellant hi!d died after 1937, there could be no dispute ~hat the appellant woulc\ have· got an absolute interest, because she was entitled to her share under the provisions of the Hindu Women's Right to Property Act, 193 7. Furthermore, it may be necessary to study the language in which the Explanation to s. 14( 1) and sub-s. (2) of s. 14 are couched. It would be seen that while the Explanation to s. 14(1) clearly and expressly mentions "property acquired by female Hindu'? at partition. or in lieu of maintenance or arrears of 1naintenance there is no reference in sub-s. (2) at all to this particular mode of acqui-sition by Hindu female which clearly indicates that the intention of the Parliament was to exclude the application of sub-s. (2) to cases where the property has been acquiredi by Hindu female either at partition or in lieu of maintenance etc. The Explanation is an inclu-E sive definition and if the Parliament intended that everything that is mentioned in the Explanation should be covered by sub-s. (2) it should have expressly so stated in sub-s. (2). Again the language 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 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 .2ift or will, which clearly would not include property received by Hindu female in lieu of maintenance or at partition. Subsequently, however, au amendment was proposed by one of the members for adding other cate· gories, namely, an instrument, decree, order or award which was ac-cepted bv 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 transac· tions where right is created for the first time in favour of the Hindu female. The intention of the Parliament in adding the other cateeories to sub-s. (2) was merely to ensure that any transaction under which Hindu female gets new. or independent title under any of the modes mentioned ins. 14(2), namely, gift, will, decree, order, award or an instrument which prescribes restricted estate would not be disturb-ed and wo,uld continue to occupy the field covered bys. 14(2). This

would be the position even if Hindu male was tu get the property by any of the modes mentioned in s. J 4(2) : he would also get only restricted interest and, therefore, the Parliament thought that there was no warrant for making· ahy distinction 'between male or female in this regard and both were, therefore, sought to be equated.

Finally, we cannot overlook the scope and extent of proviso. There can be no doubt that sub-s.' (2) of s. 14 is clearly proviso to ~. 14(1) and this has been so held by this Court inBadri Prasad's case (supra). It is well settled that provision in the nature of proviso . merely carves out an exception to the main provision and cannot be interpreted in manner so as to destroy the effect of the main provision or to render the same nugatory. If we accept the argument of the res-pondent that sub-s. (2) to s. 14 would include even property which has been acquired by Hindu female at partition or in lieu of maintenance then substantial part of the Explanation would be com-pletely set at nanght which could never be the intention of the proviso. Thus we are clearly of the opinion that sub-s. (2) of s. 14 of the proviso should be interpreted in such way so as not to substantially erode s. 14(1) or the Explanation thereto. In the present case we feel that the proviso has carved out completely separate field and before it can apply three conditions must exist :

(i) tliat the property must have been acquired by way of gift, will, instrument, decree, order of the Court or by an award;

(ii) that any of these documents executed in favour of Hindu female must prescribe restricted estate in such property; and

(iii) that the instrument must create or confer new right, title or interest on the Hindu female and not m~rely recoguise, ·or give effect to pre-existing right which the female Hindn already possessed.

Where any ·of these documents are executed but no restricted estate is prescribed, sub-s. (2) will have no application. Similarly where these instruments do not confer new title for the first time on tlie female Hindu, s. 14(1) would have no application. It seems to me that s. 14(2) is salutary provision which bas 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 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 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" ins. •14(2). Not much, however, turns upon this. I think that the Parlia!llent advi-sedly used the expression "restricted estate" in s. 14(2), because while limited interest would indicate only life estate, restricted estate is much wider in its ·import. For instance, suppose donor while giving

the property to Hindu female inserts condition that she will have to pay Rs. 200/- to donor or to one of his relatives till particular time, this would not come within the term "limited interest", but it would be included by the term "restricted estate''. That is the only justification for the difference in the terminology_of s. 14( 1) and (2) of the Act.

Having discussed the various aspects of s. 14(1) and (2) we shall now deal with the authorities cited before us by counsel for the parties which are by no means consistent. We will first deal with the authorities which took the view that we have taken in this case. Jn this connection the sheet-anchor of the argument of the learned coun-sel for the appellant is the decisi011 of the Bombay High Court in B. B. Petti! v. Gangabai (') and that of the counsel for the respondents is the decision of the Madras High Court in Gurunadham v. Sundra-raju/u(') and Santhanam v. Subramania([3]). 1he latter case was affir-med in appeal by the Division Bench of the Madras High Court in S. Kachapalaya Gurukkal v. V. Subramania Gurukkal (') and the aforesaid Division Bench judgment forms the subjects matter of Civil Appeal No. 135 of 1973 which will be disposed of by us by separate judgment.

We will now take up the case of the Bombay High Court relied upon by the learned counsel for the appellant which, in our opinion,. lays down the correct law on the subject. In B. B. Patil v. Ganga-bai (supra) the facts briefly were that the properties in question were the self-acquired properties of Devgonda and after his death in 1902 Hira Bai daughter-in-law of Devgonda (widow of his son Appa, who also died soon thereafter) came into possession of the proper-ties. Disputes arose between Hira Bai and Nemgonda, the nephew of Devgonda, and the matter having been referred to the arbitrator he gave his award on October 16, 1903 and decree in tenns of the award was passed on October 24, 1903. Under the decree in terms of the award, 65 acres of land and one house was allotted to Hira Bai out of which 30 acres were earmarked for the provision of mainten-ance and marriage of the three daughters and the rest of the property was ordered to be retained by Hira Bai for life with certa;n restrictions. After her <lea.th these properties were to revert to Nemgonda. The dispute which was the subject-matter of the appeal before the High Court was confined to 35 acres of land and the house which was in possession of Hira Bai. Hira Bai continued to be in possession of these properties right upto February 25, 1967. Meanwhile Nem-gonda 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 suit for possession claiming entire title to the properties in possession of Hira Bai on the ground that Hira· Bai \Vas in possession of the properties as limited o\vner at the time of the passing of the Hindu Succession Act, 1956 and

(I) A.J.R. [1972] Born. 1". (2) !.LR. [1968] ·l Mad. 567. (3) I.LR. [ 1967] Marl. 68. (4) A.LR. [1976] M•d. 179.

so her limited estate was enlarged into an absolute estate and the plaintiffs were, therefore, entitled to succeed to her properties in pre-ference 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 life interest in the properties, her case would be covered by s. 14 ( 2) of the Act and after her death the prnoerties 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 Bai and did not seek to confer any fresh rights or source of title on Hira Bai. Thus even though the award did provide that Hira Bai would have limited interest, s. 14(2) would have no application and Hira Bai will get an absolute interest after the coming into force of the Hindu Succession, Act, 1956. The Court observed :

"The explanation, thus, brings under its purview· all properties traditionally acquired by Hindu female on which merely by reason of the incidents of the Hindu law she has limited ownership. In other words, sub-section ( 1) read with this explanation provides tliat any property, how-soever acquired and in possession O·f Hindu female affer the commencement of the Act shall be held by her as fnll owner in all cases where she formerly held merely limited ownership. As matter of fact, this sub-section proceeds on the basis that there are several categories of properties of which Hindu female, under the provisions of Hindu Law, is merely limited owner. By this. enactment her rights1 are enlarged and wherever under the Hindu Law she would merely obtain limited ownership, she would, after the commencement of the Act, obtain full ownership." "There is consensus of judicial opinion with regard to the ambit of sub-s. (2) of s. 14 of the Act. It covers only those cases of grants where the interest in the grantee is created by the grant itself, or, in other words, where the g;ft, will, instrument, decree, order or award is the source or origin of the interest created in the grantee. Where, however, the instruments referred to above are not the source of interest created but are merely declaratory or definitive of the right to property antecedently enjoyed by the Hindu female, sub-section (2) has no application; and it matters not if in such instruments it is specifically provided in express terms that the Hindu female had limited estate or that the property would revert on her death to the next reversioner such terms are merely the reiteration of the incidents of the Hindu Law applicable to the limited estate."

Dwelling on the nature and inCidents of the right of the widow to ~aintenance before the Hindu Women's Right to Property Act, 1937, Palekar, J., speaking for the Court described the various

[1977) 3 S.C.R.

characteristics and incidents of the right of Hindu female for main-tenance (which have already been discussed by us). Finally, the Judge observed as follows :

"It appears to us that in the context of the Hindu widows the right to maintenance conferred under the Hfodu Law is ilistinguishable in quality from her right to 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 mainten-ance" as much limited owner as when the widow acquires on "inheritance" or "at partition". And. if in the latter two cases it is conceded that sub-section (2) does not apply on !Qe ground of antecedent right to the family properties, we do not see any rational· justification to exclude widow who has an equally sufficient claim over the family properties for her maintenance."Thus the following propositions emerge from detailed discus-sion of this case :

(I) that the widow's claim to maintenance is undoubtedly tangible right though not an absolute right to property so as to become fresh source of title. The claim for maintenance can, however, be made charge on the joint family properties, and even if the properties are sold with the notice of the said charge, the sold properties will be burdened with the claim for maintenance; (2) that by virtue of the Hindu Women's Right to Property Act, 193 7 the claim of the widow to maintenance has been crystallized into full-fledged right and any pro• perty allotted to her in lieu of maintenance becomes pro-perty to which she has limited interest which by virtue of the provisions of Act of 1956 is enlarged into an· absolute title;

(3) [Section 14(2) applies only to cases where grant ][is ][not ]in lieu of maintenance or in recognition of pre-existing rights but confers fresh right or title for the first time and while conferring the said title certain restrictions are placed by the grant or transfer. Where, however, the grant is merely in recognition or in implementation of pre-existing right to claim maintenance, the case falls beyond the purview of s. 14(2) and comes squarely within the explanation to s. 14(1).

The Court dissented from the contrary view taken by the Orissa and Madras High Courts on this question. We find that the facts of this case are on all fours with the present appeal, and we are in complete agreement with the view taken and the reasons given by Palekar, J. Once it is recognised that right of maintenance is pre-existing tangi-

LL righ~, ii m~kes no difference whether Hindu widow died before or after th·e enactment of Hindu Women's Rights to Property Act 1937. ,

similar view was taken by an earlier decision of the Andhra Pradesh High Court in Gadem Reddayya v. Varapula Venkararaju and Anr,. (') where the Court held that the family settlement was only in rccoznition of the pre-existing right of the widow to maintenance and, therefore, was not covered by s. 14(2) of the Act of 1956. In our oph:ion, this case correctly states the law on the subject, •

In Sumeshwar Mishra v. Swami Nath Tiwari, (') the High Court of Patna appears to have taken the same view, and in our opinion verJ correctly. The Patna High Court differed from the decision of the Madras High Court in Thatha Gurunadhan Chetti v. Smt. Thatha Navaneethamma,(') and in our opinion rightly. We are of the opinion, for the reasons that we have already giveq above, that the view of the Madras High Court was not legally correct. later decision of the Patna High Court in-Lakshmi Devi v. Shankar Jha(') has also taken the same view; We, however, fully approve of the view expressed by the Patna High Court and Andhra Pradesh High Court ·referred to above. Similarly in . .Venkanagouda .v. Hanamangouda(') 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 whlch was dissented from by the Mysore High Court is, in our opinion, legally erroneous and must be overruled. ·In Smt. Sharbati Devi v. Pt. Hira Lal & Anr.(6) the Punjab High Court clearly held that application of s. 14(2) was limited to only those cases where female Hindu acquired title for the first time, for otherwise the property acquired in lieu of maintenance even though conferring limited estate fell clearly withln the ambit of explanation to s. 14 (!) of the Act and would, therefore, become the absolute pro-: perty of the widow. Thus the Punjab.High Court also fully favours the view taken· by the Bombay, Patna, Mysore, Andhra Pradesh and other High Courts discussed above and has our full approval. The only distinction in the Punjab case is that here the widow got the pronerties after the comin.~ into force of the Hindu Women's Rights to Property Act, 1937. but that, as we shall point out hereafter, makes no difference with respect to the legal right which widow Ilas t'J maintain herself out of the family property.

(I) A.T.R. 1965 A.P. 66. (2) A.T.R. 1970 Pa'. 348. (1) A.~.R. 1967 M•d. 429 .. (4) A.I.R. 1074 Pat. 87. (5) A.l.l? .. 1972 Mys. 286. (6) A.I.R. 1964 Pb. 114.

The Calcutta High Court has also taken the same view in Sasadhw Chandra Dev v. Smt. Tam Sundari Desi (') which we endom·.

In Saraswathi Ammal v. Anantha Shenoi,(') the Kerala High Court, after very detailed discussion and meticulous analysis of the law on the subj~t, pointed out that the right of widow to main-tenance was not matter of concession but under the Sastri's Hindu Law it was an obligation on th_e heirs who inherited the properties of the husband to maintain the widow and any property which the widow got in lieu of maintenance was not one given purely as matter of concession, but the widow acquired right in such property. We fully agree with the view taken by the Kerala High Court in the afore-said case.

In Kunji Thomman v. Meenakshi([3]) although the Kerala High Court reiterated its previous view, on the facts of that particular case the High Court held that under the family settlement the widow did not get any right to maintenance but was conferred new right which was not based on her pre-existing right and on this ground the High Court felt that the widow would not get au absolute interest in view of the explanation to s. 14 ( 1).

In Chel/ammal v. Nallammal(') the facts were almost similar to the facts of the present case. single Judge of the Madras High Court held that the case was clearly covered by the Explaiiation to s. 14 (1) of the Act and the properties given to the widow in lieu of maintenance became her absolute properties and would not be covcrefl by s. 14(2) of the Act. This decision appears to have been over-ruled bv later decision of the same High Court in S. Kachapalaya Gurnkkal v. V. Subramania Gurukkal (supra) which is the subject-matter of Civil Appeal No. 126 of 1972 and we shall discuss the Division Bench's decision when we re.fer to the authorities taking contrary view. We find ourselves in complete agreement with the view taken by the Single Jucll(e in Chellammal v. Nellamnwl (supra). and we overrule the Division Bench decision in S. Kachapalaya G11ru-kkal's case (supra).

Thus all the decisions discussed above proceed on the right pre-mises and have correctly appreciated the nature and incidents cf 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 iaid down correct law on the subject.

We now deal with the authorities taking contrary viev,'. '\ hich, in our opinion, does not appear to be the correct view.

Jn Narayan Patra v. Tara Patrani(') the Orissa High Court. fol-lowing decision of the Andhra Pradesh High Court in G. Kondiah v. G. Subbarayya([6]), held that since the widows were given o!lly

(1) A.T.R. 1962 Cal. 418. (2) A.LR. 1966 Ker. 66. (3) I.!..R. 1970 2 Ker. 45. (4) [19711 M.LJ. 439. • (5) [l nOJ 36 Cutt,ok L.T. 667~A.T.'1.. 1970 Orissa 131. (6) [1968] /. Andh. W.R. 455.

,-__...._ -

Iestricted 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 Madras decision in Thatha Gurunadham Chetty v. Thatha Navaneethamma (supra). It is obvious that the conclusions arrived at by the High Court are not warranted by the express prmci-ples of Hindu Sastric Law. It is true that widow's claim for main-tenance does not ripen into full-fledged right to property, but nevertheless it is undoubtedly right which in certain cases can amount to right to property where it is charged. It cannot be said that where property is given to widow in lien of maintenance, it is ,given to her for the. first time and not in lieu of pre-existing right. The claim to maintenance, as also the right to claim property in order to maintain herself, is an inherent right con-Jerre<l 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 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 claim or right at all. Once it is established that the instrument merely recognised the pre-existing right, the widow would acquire absolute interest. Secondly, the Explanation to s. 14(1) merely mentions the various mooes by which widow can acquire property and the property given in lieu of maintenance is ·one of the modes mentioned in the Explanation. Sub-section (2) is merely proviso to s. 14( 1) and it cannot be interpreted in such manner as to destroy the very concept of the right conferred on Hindu woman under s. 14(1). Sub-section (2) is limited only to those cases where by virtue of certain grant or disposition right is conferred on the widow for the first time and the said right is restricted by certain conditions. In other words, even if by grant or disposition property is conferred on Hindu male under certain condit'ons, the same are binding on the male. The effect of sub-s. (2) is merely to equate male and female in respect of grant conferring restricted estate. In these circumstances we do not agree with the views expressed by the Orissa High Court.

The other High Courts which have taken contrary view are mainly the Andhra Pradesh, Allahabad and the Madras Hgh Courts. In an earlier decision of the Patna High Court in Shiva Pui<lll Rai and Others v. Jamuna Missir and Others(') the High Court seems to rally round the view taken by the Madras High Court.

We shall take up the decisions of the Andhra Pradesh High Court. As already 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 case like the present, Hindu female would get an absolute interest and her case would not be covered by sub-s. (2) of c. 14 of the 1956 Act. In Gopisetti Kondaiah v. Gunda Subbaravudu(') another Division Bench of the same High Court apµcars to have taken contrary view. Jaganmohan Reddy, C.J .. speaking for the Court observed as follows:

(1) I.LR. 47 Pat. 1118.

(2) LL.TR.[1968] A.P. 621.

"In so far as the right of Hindu woman to maintenance is concerned, it is necessary at this stage to point out one nther basic concept. Hindu woman has right to be maintained by her husband or from her husband's property or Hindu joint family property. But that is merely right tu receive maintenance out of the properties without in any way conferring on. her any right, title or interest therein. It 1s not definite right, but is capabie of being made charge on specific properties by agreement, decree of Court or award, compromise or otherwise.-....... But this incli-finitc right, to be maintained from out of the properties of Hindu Joint family, does no:, however, create in her pro-prietary right in the property .......... But if restricted estate is given by any such instrument, even if it be in lieu of maintenance, which is inconsistent with an estate she would get under the Hindu Law, then sub-section (2) of section 14 would operate to give her only restricted estate. . ...... . But if it is the latter, notwithstanding the fact that it was transferred in lieu of maintenance, if only restricted estate was conferred by the instrument, then she would only have the restricted estate."

While we fully agree with the first part of the observations made by the learned Chief Justice, as he then was that one of the basic concepts of Hindu Law is that Hindu woman has right to be maintained by her husband or from her husband's property or the joint family pro-perty we respectfully disagree with his conclusion that even though this is the legal position yet the right to receive maintenance ·E does not confer on her any right, title or interest in the property. It is true that the claim for maintenance is not an enforce-able right but it is undoubtedly ·pre-existing right, even though no charge is made on the properties which are liable for her maintenance. We also do not agree with the view of the learned Chief Justice that if the property i's given to the widow in lieu of main-.tenance she will get only restricted estate. In our opinion, the High Court of Andhra Pradesh has proceeded on wrong premises. Instead of acknowledging the right of Hindu woman to maintenance as right to right---or for that matter pre-existing right-and then considering the effect of the subsequent transactions, the High Court has first presumed that the claim for Il:!aintenance is not tangible right at all and, therefore, the question of prc-existmg r;ght does not arise. This, as we have already pointed o•,t, is against the con-G sistent view taken by large number of Co11rts for very long period. Furthermore, this case does not appear to have noticed the previous Division Bench decision in Gadam Reddayya's case (supra) taking the contrary view, and on this ground alone the authority of this case is considerably weakened. At any rate, since we are satis-fied that the claim of Hindu woman for maintenonce· is pre-exist-ing right, any transaction which is in recognition or declaration of that right clearly falls beyond .the purview of s. 14(2) of the 1956 Act and, therefore, this authonty does not lay down the correct Jaw. W c, therefore, do not approve of th[0 ]v;ew 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 single Judge took the same view as the Bombay High Court and held thats. 14(2) was not appli-cable, the Division Bench of the Court in an appeal agamst the order of another Single Judge took the contrary view. In S. Kachapalaya Gurukal v. Subramania Gurukkal (supra) the Court seems to draw an artificial distinction between claim of widow !or mainten-ance and pre-existing right possessed by her. According to the High Court, while claim for maintenance simpliciter was not right at all, the right to get share in the husband's property under the Hindu Women's Right to Property Act, 1937 was pre-existing right. The Madras High Court appears to havti fallen into an error by misconceiving the scope and extent of Hindu woman's right to maintenance. Secondly, it appears to have interpreted the proviso in such manner as to destroy the effect of the main provision, namely, s. 14 (!) and the explanation thereto, for which there can be no warrant in law. The decision of Natesan, J., in Gurunadham v. Sund-rarajulu Chetty (supra) which had been affirmed by this judgment also appears to, have taken the same view and had fallen into the same error. Furthermore, the view of the learned Judge that on the interpretation given and the view taken by the Bombay High Ccurt which we have accepted, s. 14 is intended to override lawful terms in contracts, bargains, bequests or gifts etc. is not correct, because the scope and area of sub-s. (2) of s. 14 is quite separate and defined. Such §Uh-section applies only to such transactions as confer new right, title or interest on the Hindu females. In such cases the titles created under sub-s. (2) :.re left in tact ands. 14(1) does not inter-fere with the titles so created under those instruments.

Thus, in short, these two decisions suffer from the following legal infirmities : (i) the Madras High Court has not correctly or properly appreciated the nature and extent of the widow's righ~ to mainten-a~cc; and (ii) .the distinction drawn by the Court regarding the share given to the widow under the Hmdu Women's Right to Property Act allotted to her before the passing of the Act in lieu of maintenance is based on artificial grounds. In fact the Act of 1937 did not legislate anything new, but merely gave statutory recognition to the old Shastric Hil,Ju Law by consolidating the same and clarifying the right of the widow which she already possessed in matter of succession under the Hindu Law. This being the position, the Act of 1937 makes rio difference so far as the legal status of widow in regard to her right to maintenance was, concerned. The Act neither took away the right of maintenance nor conferred the same; (iii) the Court appears to • have given an extended meaning to sub-s. (2) of s. 14 of the 1956 Act which has been undoubtedly enlarged so as to set at naught the express words in the Explanation to sub-s. (1) of s. 14 which express-ly exclude the property given to widow in lieu of maintenance or at partition from the ambit of sub-s. (l). In other words, such property, according to the Explanation, is property in which the widow would have undoubtedly limited interest which by operation of law i.e. force of s. 14(1) would be enlarged into an absolute in-terest if the widow is in possession of the property on the date when the Act was passed; (iv) similarly the Court failed to notice that 5-436SCI/77

[1977] 3 S.C.R,

sub-s. (2) of. s. 14 would apply only wh~re new right is created for the first tune by virtue o! gift, will etc. or the like executed in favour of the widow in respect of which she had no prior interest in !he property at all. For instan"e, daughter is given limited in-~erest Ill presence of the widow. Here the daughter not being an heir m presence of the widow (before !he Hindu Succession Act came into force) she had no right or share in the praperty, and if she was allotted some property under any instrument, new and fresh right was created in her favour for !he first time which she never possessed. Such case would be squarely covered bys. 14(2) of the Act.

In Ram Jag Misir v. The Director of Consolidation, U.P.,(') 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 res-tricted estate under the compromise, s. 14(2) would at once apply. It has not at all considered !he decisions of tliis Court that mere description of limited interest in grant or compromise is not res-triction but may just as well as merely statement of the law as it stood when the grant was made. The Court has also not considered the various incidents and characteristics of the widow's right to main-tenance under the Hindu Law.

Reliance was also placed by !he learned counsel for the1 respon-dents on Division Bench decision of the Patna High Court in Shiv Pujan Rai v. !amuna Missir (supra) where the High Court held that the property given to widow under compromise in lieu of her maintenance was covered by sub-s. (2) of s. 14. This decision was really based on the peculiar findings of fact arrived at by the Courts of fact. The High Court in the first place held that on the facts there was nothing to show !hat the widow acquired any interest inde-pendent of the compromise under which she was given the praperty. In these circumstances, it may be !hat the widow was given fresh or new title under the compromise in which case the matter would be clearly covered bys. 14(2) of the 1956 Act. Even if this case be treated as an authority for the proposition !hat any property allotted to widow under compromise in lieu of maintenance would be covered by s. 14(2) of the Act, then we dissent from this view, and for !he reasons which we have already given we choose to prefer the view taken by the Patna High Court in later case in Sumeshwar Mishra v. Swami Nath Tiwari (supra), which lays down the correct law on the subject.

Reliance was also placed on Full Bench decision of !he Jammu & Kashmir High Court in Ajab Singh & Ors. v. Ram Singh and other.(') In this case also the various aspects which we have indicated • and the nature and extent of the Hindu women's right to mantenance were not considered at all and the Court proceeded by giving an extended meaning to !he provisions of sub-s. (2) of s. 14 which in that case was sub-s. (2) of s. 12 of the Jammu & Kashmir Hindu Succes-sion Act 1956. It is true that the leading Judgment was given by one of u~ (Fazal Ali, J.,) but I must confess that the important ques-tion of law that has been argued before us in all its comprehensive aspects was not presented before me in that case and even the counsel

(1) A.I.R. 1975 All. 151.

(2) A.1.R. 1959 J & K 92.

for the respondents did not seriously contend that sub-s. (2) of s. 14 was not applicable. For these reasons we are not in 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 careful scrutiny and analysis of the authorities discuss-ed above, the position seems to be that tl:e view taken by the High Courts of Bombay, Andhra Pradesh, Patna, Mysore, L:·1jab, Calcutta and Kerala to the effect that the widow's claim to maintonc.::ce, 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 Hindu widow to claim maintenance is un-doubtedly right against property though not right to property. Such right can mature into full-fledged one if it is charged on the property either by an agreement or by decree. Even otherwise, where 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 pre-existing right. (2) Section 14(2) which is in the nature of proviso to s. 14(1) cannot be interpreted in way so as to destroy the concept and defeat the purpose which is sought to be effectuated by s. 14 (1) in conferring an absolute interest on the Hindu women and in doing away with what was heretobefore known as the Hindu women's estate. The proviso will apply only to such cases which flow beyond the pur-view of the Explanation to s. 14(1).

( 3) That the proviso would not apply to any grant or transfer in favour of the widow hedged in by limitation or restrictions, where the grant is merely in recognition or declaration of pre-existing right, it will apply only to such case where new right which the female .did not possess at all is sought to be conferred on her nnder certain limitations or exceptions. In fact in such case even if conditional grant is made to male, he wonld be bound by the condition imposed. The proviso wipes out the distinction between male and female in this respect. ·

The contrary view taken by the Madras, Orissa, Andhra Pradesh Allahabad and Jammn & Kashmir High Courts proceeds on the fol~ lowing grounds :

.< 1) That a. widow's. claim to maintenance is merely an inchoate or mcomplete nght havmg no legal status, unless the widow gets property in lieu of maintenance or unless charge is created in particular property the claim for maintenance cannot be legally en-forced. Thus, where under grant, compromise, transfer or decree, property is allotted to the widow in lieu of maintenance, it is not the recognition of any pre-existing right but it amounts to confennent of new right for the first time which in fact did not exist before the said demise. This view is really based on the provisions of.the Hindu Women's Right to Property Act, 1937, under which the widow has got the right to get share o£ his son in lieu of partition and even

otherwise she is entitled to her share in the joint Hindu family property on partition. These High Courts, therefore, seem to be of the opi-nion that in view of the provisions of the Hindu Women's Right to Property Act, the widow in claiming share in the property has pre-existing right which is recognised by law, namely, the Act of 1937 . . The same, however, cannot be said of bare claina to maintenance which has not been recognised as legal right and which can mature into legally enforceable right only under grant or demise. This \iew suffers from serious fallacy, which is based on misconception of the truei position of Hindu widow's claim for maintenance. It bas 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 co-owner of the properties with her husband and even before the Act of 1937 she was enti.tled to the share of son on the death of her husband a;fter partition according to some schools of Hindu Law. The Act of 1937 did not introduce any new right but merely gave 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 bas made revolutionary change in the Hindu Law and has changed the entire complexion and concept of Hindu women's estate. In these circum-· stances, therefore, if the widow's claim for maintenance or right to get the share of 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 bis wife even if he bas no property. Where he bas property the widow bas to be maintained from that property so much so that after the death of her husband any one who inherits that property takes the property subject to the burden of mruntaining the widow. Even where the property is transferred for payment of family debts and the transferee has the notice of the widow's clrum for mruntenance, he has to dis-charge the burden of maintaining the widow from the property sold to him. Thus the nature and extent of the right of the widow to claim maintenance is undoubtedly pre-existing right and it is wrong to say that such right comes into existence only if the property is allotted to the widow in lieu of maintenance and not otherwise.

Another reasoning given by the courts taking the contrary view is that! sub-s. (2) being in the nature of proviso to s. 14(1) all ,grants with conditions take the case out of s. 14(1). This, as we have already pointed out, is based on wrong interpretation of the scope and! ambit of sub-s. (2) of s. 14.

Lastly, the contrary view is in direct conflict with the observations made by this Court in the cases referred to above, where grant in lieu of maintenance of the widow has been interpreted as being in recog-pition of pre-existing right so as to take away the case from the ambit of sub-s. (2).

For these reasons and those given hereto before we choose to prefer the view taken by Pa)ekar, J., in B. B: Patil v. qangabai (s_npra) which appears to be more m consonance Wlth the ob1ect and spmt of

the 1956 Act. We, therefore, affirm and approve of the decisions of the Bombay High Court in B. B. Patil v. Gangabai; of the Andhra Pradesh High Court in Gadam Reddayya v. Varapula Venkataraju & Anr.; of the Mysore High Court in H. Venkanagouda v. Hanamana-gouda; of the Patna High Court in Sumeshwar Mishra v. Swami Nath Tiwari; of the Punjab High Court in Srnt. Sharbati Devi v. Pt. Hira Lal & Anr. and Calcutta High Court in Sasadhar Chandra Dev v. Srnt. Tara Sundari Dasi (supra) and disapprove the decisions of the Orissa High Court in Narayan Patra v. Tara Patrani; Andhra Pradesh High Court in Gopisetty Kondaiah v. Gunda Subbarayudu (supra); Madras High Court in S. Kachapalaya Gurukkal v. V. Subramania Gurukkal (supra) and Gurunadham v. Sundararajulu; of the Allahabad High. Court in Ram Jag Missir v. Director of Consolidation, U.P.;_ and in jab Singh & Ors. v. Ram Singh & Ors. of the Jammu & Kashmir High Court.

Lastly strong reliance was placed by Mr. Natesan counsel for the respondents on decision of this Court in Smt. Naraini Devi v. Smt. Ramo Devi & Others(') to which one of us (Fazal Ali, J.,) was 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 widow that she should be entitled to rent out the property for her !if~ time, it was held by this Court that this amounted to restricted estate under s. 14(2) of the 1956 Act. Unfortunately the various aspects, tnamely, the nature and extent of the Hindu women's right to· main-tenance, the limited scope of snb-s. (2), which is 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 share or interest in the house of her husband under the Hindu Law as it was applicable then, and, therefore,' such share amounted to pr~existing right. The attention of this Court, however, was not drawn to the language of t\Je Explanation to s. 14(1) where property given to widow at partition or iu lieu of maintenance had been placed in the same category, and, therefore. the reason given by this Court does not appear to be sound. For the reasons that we have· already given, after taking an overall view of the situation, we are satisfied that the Division Bench decision of this Court in Naraini Devi's case (supra) was not correctly decided and js therefore. overruled.

Indeed, if the contrary view is accepted, it will, in my opininn, 'Set at naught the legislative process of part of Hindu Law of the intestate succession and curb the social urges and aspirations of lhe Hindu women, particularly in the International Year of Women, by reviving highly detestable legacy which was sought to be buried by the Parliament after independence so that the new legislation may march with the time8. · ·· · ·

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

(!) [1976] 1 s.c.c. 574.

310 "".~ ..

interpretation oil' s. 14(1) and (2) ot the Act of 1956. These con-clusions may be stated thus :

( 1) The Hindu female's right to maintenance is not an empty for-mality or an illusory claim being conceded as matter. of grace and generosity, but is tangible right against property which flows from the spiritual relatiouship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such right may not be right to property but it is right against pro-perty and the hus_band has 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 charge is created for the maintenance of female, the said right becomes legally enforceable one. At any rate, even without charge the claim for maintenance is doubtless pre-existing right so that any transfer declaring or recognising such right does not confer any new title but merely endorses or confinns the pre-existing rights.

(2) Section 14(1) and the Explanation thereto hav~ 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 legis-lation.

(3) Sub-section (2) of s. 14 is in the nature of proviso and has field of its own without interfering with the operation of s. 14(1) materially. The proviso should not he construed in manner so as to destroy the effect of the main provision or the protectiou granted by s. 14(1) or in 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 pre-F existing rights. In such cases restricted estate in favour of female is legally permissible and s. 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises pre-existing right, such as claim to maintenance or partition or share to which the female is entitled, the sub-sectiou has absolutely no application and the female's limited interest wonld automatically be enlarged into an absolute one by force of s. 14(1) and the restrictions placed, if any, under the document wonld have to be ignored. Thus whern property is allotted or transferred to female in lieu of maintenance or share at partition, the instrument is taken out of the ambit of sub-s. (2) and would be governed bys. 14(1) despite any restriction~ placed on the powers of the transferee.

(5) The use of express terms like "property acquired by female Hindu at partition", "or in lieu of maintenance" "or arrears o~ maintenance" etc. in the Explanation to s. 14(1) clearly makes sub-s. (2) inapplicable to these categories which have been expressly exceoted from the operation of sub-s. (2).

( 6) The words "possessed by" used by the Legislature in s. 14 (I) are of the widest possible amplitude and include the state of owning " property even though the owner is not in actual or physical possession of the same. Thus, where widow gets share in the property undet preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under final decree, the property would be deemed to be possessed by her and by force of s. 14(1) she1 would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of clainI, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title.

(7) That the words "restricted estate~ used in s. 4(2) are wider than limited interest as indicated ins. 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee.

Applying the principles enunciated above to the facts of the present case, we find-

(i) that the properties in suit were allotted to the appellant Tnla-samma on July 30, 1949 under compromise certified by the' Court;

(ii) that the appellant had taken only' life interest in the proper-ties and there was clear restriction prohibiting her from alienating the properties;

(iii) that despite these restrictions, she continued to be in posses-sion of the properties till 1956 when the Act of 1956 came into force; and

(iv) that the alienatious which she had made in 1960 and 1961 were after she had acquired an abwlnte 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 pre-existing right and, therefore, the case of the appellant would be take11 out of. the ambit of s. 14 (2) and would fall squarely withi11 s. 14 ( 1) read with the Explanation thereto. Thus the appellant would acquire an absolute interest when she was in possession of the proper-ties 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 liniited interest in setting aside the alienations made by her. Wei 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 peculiar circumstances of this case and having regard to the serious divergence of judicial opinion of the various Courts of India, we would make no order as to costs in this Court.

Appeal allowed.