Cases Referred:

Advocates:
A.K.Sanghi, J.S.VAD, S.B.VAD, TAMALI DAS GUPTA

Judgment

R.M.SAHAI, J.

(1) DOES the life estate of a widow under a will executed in 1941 gets enlarged into an absolute estate under Section 14(1 of the Hindu Succession Act, 1956 (in brief the Act) if the succession opened after death of the testator in 1958 is the question of law that arises for consideration in this appeal directed against the judgment and order of the Bombay High court (Nagpur bench).

(2) HOW the dispute arose may be narrated, in brief, to determine if the High court committed any error of law in setting aside the concurrent orders passed by the two courts below dismissing the suit of the plaintiff-respondent for declaration of title and recovery of possession. It has been found and is not disputed that the last male holder had two wives. He executed a will of his property in 1941 giving one-half share to each of his wives till their life and the respondent, the only daughter, was to be ultimate beneficiary. The testator died in 1958. The next to die in 1966 was one of his wives, the stepmother of the plaintiff. But, few months before her death, she had executed a will in favour of the defendant-appellant, a complete stranger to the family, allegedly her domestic servant. It is the validity of this will, basically, which has been subject-matter of dispute. According to the respondent, the will was invalid as her mother having right of maintenance only, she had no right or title which she could validly transfer by way of will in favour of the appellant. On pleadings of parties various issues were framed. It is not necessary to narrate them as the finding on the nature of interest that the mother of the respondent had in the property, was recorded both by the trial court and First Appellate court in her favour. It was held that her mother had life interest only. But the suit was dismissed as the life estate created under the will stood converted into absolute estate under Section 14(1 of the Act as it was in recognition of pre-existing right. The High court did not agree with this and held that the widow could not get larger interest than that was intended by the testator. Thus execution of the will by the last male holder in 1941, grant of life interest to the two wives, vesting of property ultimately in the daughter, death of testator in 1958, his wife whose share is now in dispute in 1966 and bequeathing of the property by her in favour of the appellant few months before her death are facts which have been found to have been proved by all the courts. The difference arose between the High court and the two courts below on applicability of the law only.

(3) WHAT, therefore, falls for consideration is if the testamentary disposition of property by a male Hindu by a will which comes into operation after 1956, creating life interest in favour of his widow, subsists as such after his death or she becomes an absolute owner by operation of sub-section (1 of Section 14 read with the explanation. In other words, what is the dichotomy between two Ss. of Section 14 which forms the bedrock of revolutionary changes brought out in Hindu Law of Succession in 1956. The Act was one out of the series of legislations enacted in 1956 effecting far-reaching changes in the customary Hindu Law. It undid the social injustice to which the females were subjected for centuries by equating them with males in matters of inheritance, succession and disposition of property. The Act confers rights of inheritance and sweeps away the traditional limitations on powers of females on disposition of property etc. which were regarded under the Hindu Law as inherent in her estate (S.S. Manna Lal v. S.S. RajKumar.) They too became, a stock of descent (Kalawatibai v. SoiryabaP.) A female Hindu who, except for stridhan property, was a limited owner became an absolute owner under Section 14 of the Act. The section not only removed the disability from which a female suffered in acquiring and holding property but it converted any estate held by her on the date of commencement of the Act from limited or restricted estate to an absolute estate or full ownership. (See S. S. Manna Lal v. S.S. Raj Kumar and Bai Vajia v. Thakorbhai Chelabhai.) In Thota Sesharathamma v. Thota Manikyamma it was observed that Section 14(1 was used as a tool to undo past injustice to elevate her to equal status with dignity of person on par with man. In Kalawatibafl it was observed that this, section was a step forward towards social amelioration of women who had been subjected to gross discrimination in matter of inheritance.

(4) EVEN though the Act purports to codify the law relating to intestate succession yet to become a complete code it purports to deal with testamentary succession as well. Section 30 which is the lone section in Ch. III dealing with testamentary succession codifies the law which had been judicially expounded. It has further effected far-reaching changes in customary law in this regard. It extends operation of the provision, now, even to coparcenary property and property dealt by customary law mentioned in the explanation appended to Section 30. The section reads as under:

"30. Testamentary succession. Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus. Explanation. The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall, notwithstanding anything contained in this Act, or any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this section."

(5) IT may not be out of place to mention at this stage how the law on testamentary disposition by a Hindu had been settled by the decisions rendered by the Privy council. In Sreemutty Soorjeemoney Dossey v. Denobundoo Mullick it was held :

"WHATEVER may have formerly been considered the state of that law as to the testamentary power of Hindoos over their property, that power has now long been recognised, and must be considered as completely established."

It was reiterated in Baboo Beer Pertab Sahee v. Maharajah Rajender Pertab Sahee and it was observed :

"IT is too late to contend that, because the ancient Hindoo Treatises make no mention of wills, a Hindoo cannot make a testamentary disposition of his property. Decided cases, too numerous to be now questioned, have determined that the testamentary power exists, and may be exercised, at least within the limits which the law prescribes for alienation, by gift inter vivos"

The right and power of a Hindu to create limited estate or restricted estate and its extent was recognised in Jatindra Mohan Tagore v. Ganendra Mohan Tagore. It was observed :

"THE law of wills among Hindus is analogous to the law of gifts; and even if wills are not universally to be regarded in all respects as gifts to take effect upon death, they are generally so to be regarded as to the property which they can transfer and the persons to whom it can be transferred. ... There is no reason why a Hindu should not, by will, create an estate for life."

(6) THE wide and large power of a Hindu to bequeath a property to anyone as it existed before the Act came into force and determine the nature of an estate that could be created by him has, thus, now been statutorily recognised. The language is clear and explicit. It creates absolute power in a Hindu to dispose of his property by will. The section does not impose any restriction, express or implied, except that he should be capable of disposing of such property. The use of expansive language made wider by explanation leaves no room for doubt that the legislature unmistakably intended that any property disposed of by will by a Hindu who is capable of disposing of such property shall be subject to restrictions and conditions imposed by the testator himself in the will.

(7) LAW being thus and power of a Hindu to dispose of his property being absolute including the right to create limited or restricted estate in favour of a female the question is, does she take a life interest or she becomes an absolute owner by virtue of operation of Section 14 of the Act in respect of property which comes into her possession on death of the testator after 1956? Will under Indian Succession Act, which applies to Hindu Succession Act, a as well, operates from the date of death of testator since on the date the last male holder died the Act applied the testamentary disposition made by him was governed by Ch. III of the Act. To this extent there can be no dispute. But when he died and the property came into possession of his widow the question is what right she got absolute under Section 14(1 or limited under the will by operation of Section 14(2 of the Act. The purpose and objective of Section 14 has been explained earlier. Its reach, too, is very wide. In V. Tulasamma v. Shesha Reddy it was held that the explanation appended to the section enlarges its ambit further by expanding the meaning of word property to include both moveable and immovable properties acquired by a female Hindu in any of the manner mentioned therein. Thus any property possessed by a female Hindu if it is covered in Ss. (1, then by operation of law she becomes absolute owner of it. The meaning of the words possessed and any property was explained to have been used in wide and broad sense as including whatever the kind of property and possessed either actually or constructively or in any form recognized by law. The wide and extensive meaning to advance social purpose of legislation was recognised as far back as 1962 in S.S. Manna lal case was reiterated in Mangal Singh v. Shrimati Rattno" reaffirmed in Seth Badri Prasad v. Kanso Devi advanced further in Tulasamma case and has not been deviated since then. Fazal Ali, J. in Tulasamma deduced following principles in this regard :

"IN the light of the above decisions of this court the following principles appear to be clear (1 that the provisions of Section 14 of the 1956 Act must be liberally construed in order to advance the object of the Act which is to enlarge the limited interest possessed by a Hindu widow which was in consonance with the changing temper of the times; (2 it is manifestly clear that Ss. (2 of Section 14 does not refer to any transfer which merely recognises a pre-existing right without creating or conferring a new title on the widow. This was clearly held by this court in Badri Prasad case, (3 that the Act of 1956 has made revolutionary and far-reaching changes in the Hindu society and every attempt should be made to carry out the spirit of the Act which has undoubtedly supplied a long-felt need and tried to do away with the invidious distinction between a Hindu male and female in matters of intestate succession; (4 that Ss. (2 of Section 14 is merely a proviso to sub-section (1 of Section 14 and has to be interpreted as a proviso and not in a manner so as to destroy the effect of the main provision."

(8) OUT of these, the two principles which need be explained are two and four as it is erroneous understanding about the concept of pre-existing right which led the two courts below in dismissing suit, and furnished foundation of vehement submission advanced in this court. Why was the concept of pre-existing right evolved? How far it applies? To appreciate, brief facts of that case are necessary to be mentioned. Tulasamma was a widow. She filed a claim for maintenance as her husband had died as a member of the Joint Hindu Family. It ended ultimately by way of compromise. The property was given to her for maintenance with limited interest that she would not have any power of alienation. And the property was to revert back. A decree was passed accordingly. Since the property was given to Tulasamma in lieu of her right to maintenance, she acquired it as provided by the explanation appended to Ss. (1 of Section 14. But this right she got under a decree of a court which prescribed a restricted estate. Therefore, the right and interest which she got fell under Ss. (2 of Section 14 as well. It obviously created an anomaly. It was, therefore, observed by Bhagwati, J.:

"IT is indeed unfortunate that though it became evident as far back as 1967 that Ss. (1 and (2 of Section 14 were presenting serious difficulties of construction in cases where property was received by a Hindu female in lieu of maintenance and the instrument granting such property prescribed a restricted estate for her in the property and divergence of judicial opinion was creating a situation which might well be described as chaotic, robbing the law of that modicum of certainty which it must always possess in order to guide the affairs 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 litigation. This is a classic instance of a statutory provision which, by reason of its inapt draftsmanship, has created endless confusion for litigants and proved a paradise for lawyers."

(9) THE court by interpretative process, thus, removed the anomaly arising out of inapt drafting by construing Ss. (1 widely and reading Ss. (2 as a proviso. But this wide meaning has to be so read as to be in conformity with Section 30 and Ss. (2 of Section 14. Tulasamma case was concerned with the right of maintenance granted to a widow in a decree. It became necessary, therefore, to evolve the principle of pre-existing right. That is if the maintenance was given in recognition of pre-existing right then such acquisition of property was taken out of Ss. (2 to promote the objective of Section 14. But if that concept is extended to a will executed under Section 30 it would militate against express provision in Section 30 and Ss. (2 of Section 14. The right of maintenance a explained in Tulasamma and reiterated in Bai Vajia case was the one recognised under customary Hindu Law to maintain a widow, daughter-in-law, a mother as a member of the joint family property. It would not operate where a Hindu is bequeathing his property in exercise of his right under Section 30 of the Act. In G. Appaswami Chettiar v. R. Sarangapani Chettiar it was held by this court that where a female got a life estate under a will executed by her father, she was not entitled to claim absolute rights under Section 14(1 and her claim was covered by Section 14(2. In Kothi Satyanarayana v. Galla Sithayya a life estate created under a Deed of Settlement was held to be an instrument contemplated under Ss. (2 and, therefore, a female Hindu was held not to have acquired better right than what was given to her under the instrument. That the legislature was c aware of the unrestricted power of a Hindu to dispose of his property in any manner he considered proper subject to such restrictions as were operating in different schools is clear from Ss. (2 of Section 14. It does not curtail or erode the absolute estate which comes into operation by law but excludes from it specifically the property acquired in the manner mentioned therein. That is if any property is acquired by a female Hindu as provided in Ss. (2 then it would be beyond the purview of Ss. (1. Reason for it was that the legislature never intended to confer larger estate on females than on males. If a Hindu could bequeath his property of which he was capable of and could create life interest or restricted estate for a male it would have been incongruous to create an absolute estate in favour of female. Ss. (2 of Section 14 was read as proviso or exception to Ss. (1 so that it may impinge as little as possible on the broad sweep of the ameliorative provision contained in Ss. (1. In Tulasamma it was observed that, it cannot be construed in a manner which would rob Ss. of its efficacy and deprive a Hindu female of the protection sought to be given to her by Ss. (1. True it is an exception to sub-section (1 and should be read in such a manner as not to rob Ss. (1, of that modicum of certainty which it must always possess. Yet "the field of operation of the two Ss. is independent and separate. The legislature while obliterating the dark side of Hindu Law could not have intended to encroach upon right which existed under customary law and which it widened by adding explanation to Section 30.

(10) RELIANCE was placed on Thota Sesharathamma v. Thota Manikyamma and it was urged that in this case the right created in favour of a female under a will was held to have become absolute under Ss. (1. It is not necessary to examine this decision as it was a case in which the testator died before the Hindu Succession Act came into force and the widow was in possession as limited owner and her rights matured into absolute by operation of law. Nor it is necessary to consider if the ratio in Kami v. Amru was rightly observed to be of doubtful authority by the bench in Thota Sesharathama since the succession in present case opened after 1956.

(11) ACQUISITION of property under a will is not mentioned under sub-section (1. It squarely falls under Ss. (2. Would it make any difference if the testator after coming into force of the Act creates a restricted estate and provides for maintenance under the will? Can it be said to fall under any of the clauses mentioned in the explanation appended to sub-section (1.

(12) SECTION 14 reads as under : "14. Property of a female Hindu to be her absolute property.- (1 Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation. In this sub-section, property includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhan immediately before the commencement of this Act. (2 Nothing contained in Ss. (1 shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property." The explanation widens the ambit of Ss. (1 and extends it to any acquisition mentioned in it and by the first part the operation of Ss. (1 is extended to both moveable and immovable properties. The second part then enumerates the manner of acquisition. It includes inheritance and device; partition; in lieu of maintenance or arrears of maintenance; gift from any whether relation or not before, at or after her marriage; by her own skill or exertion; by purchase; by prescription; in any manner whatsoever; property held by her as stridhan immediately before the commencement of this Act. It does not include acquisition by will. That is in conformity with Section 30 of the Act. Otherwise it would have given rise to conflict between the property disposed of by a Hindu by a will creating limited interest and the acquisition of interest by a female under Section 14(1. None of these acquisitions are capable of creating any difficulty. But the acquisition in lieu of maintenance or arrears of maintenance and in any manner whatsoever needs elucidation. Use of words in lieu of or arrears of appear to be significant. The legislature as explained earlier was aware of absolute power of a Hindu to bequeath his property. But this right did not exist in joint family property or in various other properties under customary law. That has now been specifically recognised by Section 30. A Hindu can bequeath his a interest even in joint Hindu property. But what is its effect on the right of his widow if the testator gives only right of maintenance. Can it be said to be in lieu of maintenance? The answer is simple. The legislature then would have used the words, for maintenance and not instead of or in lieu of maintenance. That could not have been the purpose. Under the Act, a female unlike customary law is an heir. She inherits the property in her own right, The expression in lieu of maintenance or arrears of maintenance would thus become inapplicable. Apart from it a right of maintenance under a will after 1956 would fall under Ss. (2 as even on ratio in Tulasamma it would be creation of right for the first time and not in recognition of pre-existing right. Even the expression in any manner whatsoever cannot be of any help for deciding the right and interest of a female Hindu acquired under a will. The expression is no doubt very wide but its width cannot be extended to those acquisitions which are specifically dealt with by sub-section (2. Its operation has to be confined to such an acquisition which is not covered by Ss. (2 or any of the clauses of the explanation. It is true that the explanation is not exhaustive as is clear from the use of the word includes but its ambit cannot be stretched so as to nullify the effect of Ss. (2. A reading of the two Ss. together indicates that even though the law was revolutionized and a female Hindu was made an absolute owner in respect of any property acquired by her either before or after the date of enforcement of the Act yet the law did not intend to confer a higher and better right than what was enjoyed by a male Hindu. In Tulasamma case it was held by this court that a female Hindu could acquire rights under Section 14(1 only if she was possessed of the property and that possession was by some legal authority. To put it differently a trespasser or a female Hindu who cannot establish any right in the property of which she was possessed could not acquire any right. (Eramma v. Verrupanna, Kuldip Singh v. Surain Singh and Dindayal v. Rajaram). It necessarily follows that the possession must be founded on some basis which may be acceptable in law and the right that she acquires under Section 14 depends on the nature of possession she enjoyed over the property. Consequently if a female Hindu acquires possession after the enforcement of the Succession Act and that possession was traceable to an instrument or a document described in Ss. (2 then she could not get higher right than what is stipulated in the document itself. The purpose and the legislative intention which surfaces from a combined reading of the two Ss. is that it attempts to remove the disability which was imposed by the customary Hindu Law on acquisition of rights by a female Hindu but it does not enlarge or enhance the right which she gets under a will giving her a limited estate under Section 30 of the Act.

(13) FOR these reasons, the appeal fails and is dismissed. But there shall be no order as to costs.