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Paramjit Anand vs.mohan Lal Anand (Since Deceased) Through Lrs & Ors. - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
AppellantParamjit Anand
RespondentMohan Lal Anand (Since Deceased) Through Lrs & Ors.
Excerpt:
* in the high court of delhi at new delhi cs(os) nos.575/2001 & conn. matters 4th april, 2018 + % 1. paramjit anand cs(os) no.575/2001 through: ..... plaintiff mr. manjit singh ahluwalia, advocate. mohan lal anand (since deceased) through lrs & ors. ..... defendants versus through: mr. rajat wadhwa, advocate with mr. karanpreet singh, advocate. cs(os) no.1588/2007 2. mohan lal anand (since deceased) through lrs & ..... plaintiffs anr. through: mr. rajat wadhwa, advocate with mr. karanpreet singh, advocate. versus paramjeet anand & ors. ..... defendants through: mr. manjit singh ahluwalia, advocate. test cas. no.23/2007 3. naresh anand through: ........ petitioner mr. rajat wadhwa, advocate with mr. karanpreet singh, advocate. state versus ..... respondent cs(os) no.5& conn. matters page 1.....
Judgment:

* IN THE HIGH COURT OF DELHI AT NEW DELHI CS(OS) Nos.575/2001 & conn. matters 4th April, 2018 + % 1. PARAMJIT ANAND CS(OS) No.575/2001 Through: ..... Plaintiff Mr. Manjit Singh Ahluwalia, Advocate. MOHAN LAL ANAND (SINCE DECEASED) THROUGH LRS & ORS. ..... Defendants versus Through: Mr. Rajat Wadhwa, Advocate with Mr. Karanpreet Singh, Advocate. CS(OS) No.1588/2007 2. MOHAN LAL ANAND (SINCE DECEASED) THROUGH LRS & ..... Plaintiffs ANR. Through: Mr. Rajat Wadhwa, Advocate with Mr. Karanpreet Singh, Advocate. versus PARAMJEET ANAND & ORS. ..... Defendants Through: Mr. Manjit Singh Ahluwalia, Advocate. Test Cas. No.23/2007 3. NARESH ANAND Through: .....

... Petitioner

Mr. Rajat Wadhwa, Advocate with Mr. Karanpreet Singh, Advocate. STATE versus ..... Respondent CS(OS) No.5
& conn. matters Page 1 of 60 CORAM: HON’BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?. YES VALMIKI J.

MEHTA, J (ORAL) 1. Three matters are being decided in terms of the present judgment. The three matters are:-

"(i) CS(OS) No.575/2001 titled as Paramjit Anand Vs. Sh. Mohan Lal Anand (Deceased) through LRs & Ors. (ii) CS(OS) No.1588/2007 titled as Mohan Lal Anand (Deceased) through LRs & Anr. Vs. Paramjit Anand & Ors. (iii) Test. Cas. No.23/2007 titled as Naresh Anand Vs. State. 2.(i) CS(OS) No.575/2001 is the suit for partition etc of the property bearing No.J-5/129, Rajouri Garden, New Delhi. This suit was filed by two plaintiffs Sh. Paramjeet Anand and Sh. Suresh Chander Anand. Sh. Suresh Chander Anand who was the plaintiff no.2 in the suit has during the pendency of the suit got transposed himself as the defendant no.4 in the suit and he now supports the defendant nos.1 and 2 in the suit. Defendant no.1 in this suit is Sh. Mohan Lal Anand, father of the plaintiff and defendant nos.2 to 4. Sh. CS(OS) No.5
& conn. matters Page 2 of 60 Mohan Lal Anand has also since expired and now the main contesting defendant is Sh. Naresh Chander Anand, defendant no.2. Defendant no.3 is Sh. Ramesh Chander Anand, son of Sh. Mohan Lal Anand and the brother of the plaintiff and defendant nos. 2 and 4. Defendant no.3 supports the plaintiff. (ii) As per the suit plaint of CS(OS) No.575/2001, partition is sought of the suit property by pleading that though the suit property in terms of the title deed dated 12.10.1956 stands in the name of defendant no.1/Sh. Mohan Lal Anand (father of the other parties to the suit), but this suit property was purchased by Sh. Mohan Lal Anand from the funds inherited by him from his father Sh. Nathuram Anand, the grandfather of plaintiff and defendant nos. 2 to 4. Sh. Nathuram Anand had left behind the properties in Pakistan when he migrated to India at the time of independence. Sh. Nathuram Anand filed his claim with the Ministry of Rehabilitation for the properties left behind by him in Pakistan. This claim application was filed in the year 1947. This claim application was allowed and a sum of Rs.5,411/- was paid by the Ministry of Rehabilitation. The funds were paid in the year 1956 on the application of Sh. Nathuram Anand of the year 1947. CS(OS) No.5
& conn. matters Page 3 of 60 Since succession of the properties of Sh. Nathuram Anand opened in the year 1948 on his death before the enactment of the Hindu Succession Act, 1956, the funds of Sh. Nathuram Anand inherited by his four sons were ancestral in their hands (with one son being Sh. Mohan Lal Anand). Each of the sons got 1/4th share out of the amount of Rs.5,411/-. Since the suit property was purchased by Sh. Mohan Lal Anand from his share of the funds received from the estate of Sh. Nathuram Anand, therefore the suit property is an HUF property. Once the suit property is an HUF property, then each of the five parties to the suit will have 1/5th share, with the five parties being Sh. Mohan Lal Anand - the father and his four sons. Sh. Mohan Lal Anand has expired during the pendency of the suit and he is now represented by Sh. Naresh Chander Anand/defendant no.2. Reference in this judgment to the parties to the suits would be with reference to their numbering in the memo of parties filed on 23.3.2018 in this CS (OS) No.575/2001.

3. CS(OS) No.1588/2007 is filed by two plaintiffs Sh. Mohan Lal Anand and Sh. Naresh Chander Anand. This suit is a suit filed for possession of the ground floor of the suit property in CS(OS) No.5
& conn. matters Page 4 of 60 possession of Sh. Paramjeet Anand, and who is the plaintiff in CS(OS) No.575/2001. The cause of action in this suit is that the suit property is a self-acquired property of Sh. Mohan Lal Anand and it is not an HUF property. Since Sh. Mohan Lal Anand is the owner of the suit property hence Sh. Paramjeet Anand, the defendant is a trespasser and who is liable to hand over possession of the ground floor of the suit property to the plaintiffs in CS(OS) No.1588/2007.

4. Testamentary case no.23/2007 has been filed on account of death of Sh. Mohan Lal Anand, who as per the petitioner in this testamentary case Sh. Naresh Chander Anand, left behind his Will dated 9.3.2005 whereby the deceased Sh. Mohan Lal Anand gave to his widow Smt. Sushila Rani Anand life-interest/life-estate in the suit property and after the death of Smt. Sushila Rani Anand (the mother of the petitioner) to the petitioner Sh. Naresh Chander Anand as an absolute owner.

5. In sum and substance the aspects which arise for decision between the parties in the three matters, two suits and one testamentary case, fall under the following heads:-

"(i) Whether or not the suit property is an HUF property. CS(OS) No.5
& conn. matters Page 5 of 60 (ii) If the suit property is an HUF property, then, Sh. Mohan Lal Anand would have only 1/5th share in the suit property with 1/5th share each going to the four sons of Sh. Mohan Lal Anand, namely Sh. Paramjeet Anand, Sh. Naresh Chander Anand, Sh. Ramesh Chander Anand and Sh. Suresh Chander Anand. (iii) Whether Sh. Mohan Lal Anand died leaving behind his valid Will dated 9.3.2005, and which will have the effect that whatever was the share of Sh. Mohan Lal Anand in the suit property, whether as complete owner or only as 1/5th owner of the suit property, if the suit property is HUF property, such title of Sh. Mohan Lal Anand would devolve in terms of his Will dated 9.3.2005. (iv) If the Will dated 9.3.2005 of Sh. Mohan Lal Anand is held to be proved, and the suit property is not an HUF property, whether Smt. Sushila Rani Anand who got life-estate in the suit property in terms of the Will dated 9.3.2005 of her husband Sh. Mohan Lal Anand, whether this life-estate gets converted into a full ownership because of Section 14(1) of the Hindu Succession Act with the sequitur that since Smt. Sushila Rani Anand has died intestate now the suit property will CS(OS) No.5
& conn. matters Page 6 of 60 be owned by the four sons of Smt. Sushila Rani Anand and Sh. Mohan Lal Anand, with each of them getting 1/4th share. (v) In case the suit property is an HUF property and thus Sh. Mohan Lal Anand only had 1/5th share, then by virtue of his Will he could only bequeath his 1/5th share in the suit property, and Smt. Sushila Rani Anand‟s estate therefore would have only 1/5th share in the suit property, and if Sh. Sushila Rani Anand‟s right is only of a life-estate under Section 14(2) of the Hindu Succession Act, then this 1/5th share will not go equally to the four sons of Smt. Sushila Rani Anand and Sh. Mohan Lal Anand but this 1/5th share of Sh. Mohan Lal Anand will be owned by Sh. Naresh Chander Anand thus increasing his 1/5th share in the suit property to 40% i.e 1/5th plus 1/5th. (vi) In case the suit property is not an HUF property, and if the Will dated 9.3.2005 is proved, and if the life-estate of Smt. Sushila Rani Anand does not get converted into a full estate, then Sh. Naresh Chander Anand will be the sole and exclusive owner of the suit property. CS(OS) No.5
& conn. matters Page 7 of 60 6. The two suits were consolidated by the order dated 13.5.2010 passed by a learned Single Judge of this Court, and the following same/common issues were framed in both the suits on 30.9.2010:-

"“(i) Whether the plaintiff proves that the property which is subject matter of the CS(OS) 575/2001 belonged to the HUF and was, therefore, incapable of bequest by Late Sh. Mohan Lal Anand?. OPP in CS(OS) 575/2001. (ii) Whether the plaintiff in CS(OS) 575/2001 is entitled to a decree for partition, as claimed?. OPP (iii) Whether Ms. Sushila Anand and Mr. Naresh Anand (defendant nos.1(a) and 2 in CS(OS) 575/2001) prove that Late Shri Mohan Lal Anand executed a valid, genuine and binding Will bequeathing the suit properties legally in their favor on 9.3.2005?. OPD-1(a) & 2 in CS(OS) 575/2001. (iv) Whether the plaintiff in either suits are entitled to decree for rendition of accounts and/or mesne profits?. OPP (v) Whether the plaintiff in CS(OS) 1588/2007 is entitled to a decree of possession as claimed?. OPP Relief.” (v) 7.(i) The testamentary case was consolidated with the two suits in terms of the order dated 16.12.2011 passed in testamentary case and which records that the lead case shall be CS(OS) No.575/2001. (ii) Counsels for the parties agree that all the three matters have been consolidated for the purpose of trial and therefore evidence which is led in all the three matters will be treated as common CS(OS) No.5
& conn. matters Page 8 of 60 evidence in all the three matters for the issues which have to be decided. This Court therefore for the purpose of this judgment will decide the issues framed in the suits on 30.9.2010. Reference in this judgment to the parties will be by their names or as per the Memo of Parties in CS(OS) No.575/2001. Since some of the original parties have expired, reference to them will however be to them as parties as per their position as plaintiff and defendants in CS(OS) No.575/2001, and reference to a party will also include to mean reference to the legal heirs of those parties who have expired.

8. At this stage it is noted that counsel for the plaintiff in CS(OS) No.575/2001 states that issue No.(iv) with respect to entitlement of decree for rendition of accounts and mesne profits is not pressed on behalf of the plaintiff Sh. Paramjeet Anand. Counsel for Sh. Ramesh Chander Anand also makes a similar statement. 9.(i) Let me first take up the issue No.(i) as to whether the suit property is an HUF property or was the suit property a self-acquired property of Sh. Mohan Lal Anand. (ii) Counsel for the plaintiff Sh. Paramjeet Anand has argued that the Sale Deed dated 12.10.1956 (Ex.PW1/D1) which has been CS(OS) No.5
& conn. matters Page 9 of 60 executed in favour of Sh. Mohan Lal Anand on payment of consideration of Rs.1,257.10/-, is though a Sale Deed in the name of Sh. Mohan Lal Anand, but the consideration of Rs.1,257.10/- which was paid by Sh. Mohan Lal Anand to the seller DLF Housing and Construction Limited was out of the ancestral funds received by Sh. Mohan Lal Anand and his three brothers from the Ministry of Rehabilitation in terms of the document Ex.PW1/B. This document Ex. PW1/B is an application filed in the year 1947 by Sh. Nathuram Anand, the father of Sh. Mohan Lal Anand i.e the grandfather of the plaintiff in CS(OS) No.575/2001, seeking compensation on account of the properties left by Sh. Nathuram Anand in Pakistan, and an endorsement made on the top left of this document shows that on 26.7.1956 a sum of Rs.5,411/- was paid by the Ministry of Rehabilitation. The case of Sh. Paramjeet Anand is that though Sh. Mohan Lal Anand and Sh. Nathuram Anand have disputed the validity of this document but since this original document is over 30 years old therefore this Court should apply Section 90 of the Indian Evidence Act, 1872 for holding that this document stands proved and especially because the plaintiff had on various occasions summoned the CS(OS) No.5
& conn. matters Page 10 of 60 witnesses from the Ministry of Rehabilitation, but these witnesses from Ministry of Rehabilitation have stated that the concerned record could not be traced out in the Ministry of Rehabilitation. (iii) On behalf of the plaintiff reliance is also placed upon the deposition of Sh. Virender Kumar Anand son of Sh. Chaman Lal Anand, the brother of Sh. Mohan Lal Anand (and one of the four sons of Sh. Nathuram Anand), and in which deposition Sh. Virender Kumar Anand has categorically stated that the grandfather Sh. Nathuram Anand expired in May, 1948 and his father Sh. Chaman Lal Anand along with his three brothers got a sum of Rs.5,411/- and that this amount of Rs.5411/-was distributed equally among four sons of Sh. Nathuram Anand, with two of the sons being the defendant no.1/Sh. Mohan Lal Anand and Sh. Chaman Lal Anand, the father of the witness Sh. Virender Kumar Anand who deposed as PW-4. It is argued by Sh. Paramjeet Anand that Sh. Virender Kumar Anand has specifically so deposed in para 5 of his affidavit by way of evidence with respect to four sons of Sh. Nathuram Anand getting Rs.5,411/- and which amount was equally divided among these four sons of Sh. Nathuram Anand being the four brothers, and on this deposition there CS(OS) No.5
& conn. matters Page 11 of 60 is no specific cross-examination conducted by Sh. Mohan Lal Anand and Sh. Naresh Chander Anand that the amount of Rs.5,411/- was not divided among the four brothers being the four sons of Sh. Nathuram Anand, and therefore it has to be held that the suit property is an HUF property having been purchased by Sh. Mohan Lal Anand from ancestral funds received by him. 10.(i) In response to the above argument of Sh. Paramjeet Anand, Sh. Mohan Lal Anand and Sh. Naresh Chander Anand have argued that once the Sale Deed of the suit property dated 12.10.1956/ Ex.PW1/D1 is in the name of Sh. Mohan Lal Anand then it is Sh. Mohan Lal Anand who has to be taken as the owner of the suit property because Sh. Paramjeet Anand has failed to discharge the burden of proof upon him that the suit property is an HUF property. It is argued that nowhere in the Sale Deed Ex.PW1/D1 it is mentioned that the amount paid by Sh. Mohan Lal Anand of Rs.1,257.10/- was out of the compensation paid by the Ministry of Rehabilitation in terms of the document Ex.PW1/B. It was also argued on behalf of Sh. Mohan Lal Anand and Sh. Naresh Chander Anand that the plaintiff Sh. Paramjeet Anand in his cross-examination conducted on 9.5.2011 CS(OS) No.5
& conn. matters Page 12 of 60 has admitted that Sh. Mohan Lal Anand was even working before the birth of Sh. Paramjeet Anand, and therefore it is argued that it stands admitted that Sh. Mohan Lal Anand had the necessary funds with him to purchase the suit property in terms of the Sale Deed/Ex.PW1/D1 by making payment of a sum of Rs.1,257.10/-. It is also argued on behalf of Sh. Mohan Lal Anand and Sh. Naresh Chander Anand that in the cross-examination of Sh. Paramjeet Anand conducted on 13.5.2011 it was stated by Sh. Paramjeet Anand that he will produce the documents to show that Sh. Mohan Lal Anand received his share of the claim of Rs.5,411/- as stated in Ex.PW1/B, but on subsequent dates of cross- examination of Sh. Paramjeet Anand, Sh. Paramjeet Anand failed to prove this document to show receipt by Sh. Mohan Lal Anand of 1/4th total consideration of Rs.5,411/- which was paid in terms of Ex.PW1/B. (ii) It is also argued on behalf of Sh. Naresh Chander Anand that the date of payment of consideration for Sale Deed/Ex. PW1/D1 is on 17.8.1956 where as the date of payment by Ministry of Rehabilitation is later on 26.9.1956 and therefore since payment for Sale Deed is prior to receipt of Rs.5411/- from the Ministry of Rehabilitation, hence CS(OS) No.5
& conn. matters Page 13 of 60 the ancestral funds of Sh. Nathuram Anand cannot be said to have been used by Sh. Mohan Lal Anand for purchase of the suit property and hence the suit property is not an HUF property in the hands of Sh. Mohan Lal Anand.

11. In view of passing of the Benami Transactions (Prohibition) Act, 1988 ordinarily a person in whose name the title deed of the property is, such a person has to be taken as the owner, however two exceptions were carved out to the bar of the benami transactions in terms of Section 4(3) of the Benami Transactions (Prohibition) Act as it originally stood, with one exception being that the bar of benami will not apply in case there is an HUF. The Benami Transactions (Prohibition) Act has been amended w.e.f 25.10.2016 and this Act is now called as the Prohibition of Benami Property Transactions Act, 1988. Though Section 4(3) of the Benami Transactions (Prohibition) Act has been repealed from the statute book but the position comprised in erstwhile Section 4 (3) of the Benami Transactions (Prohibition) Act is now incorporated in the definition of „benami transaction‟ contained in Section 2(9) of the new Act with the CS(OS) No.5
& conn. matters Page 14 of 60 exception of HUF now being contained in Section 2(9)(A)(b)(i) of the Prohibition of Benami Property Transactions Act. The issue therefore still to be examined is as to whether the suit property was or was not the HUF property or was the property only a self-acquired property of Sh. Mohan Lal Anand. 12.(i) Let me first examine the aspect as to what is the date of payment by the Ministry of Rehabilitation in Ex.PW1/B. When Ex. PW1/B is examined it is seen that in the handwritten date, the day and year being 26th and 1956 is clear, but the numerical figure of the month is smudged. Sh. Paramjeet Anand says that this figure is '7' whereas Sh. Naresh Chander Anand argues the figure is '9'. (ii) In my opinion the figure is '7' and not '9' because Sh. Naresh Chander Anand in his cross-examination of Sh. Paramjeet Anand on 9.5.2011 has given a specific suggestion of the date being 26.7.1956. Also the date cannot be 26.9.1956 merely because Sh. Paramjeet Anand has allegedly stated the date 17.8.1956 in para 8 of the plaint, because firstly the smudged figure in Ex.PW1/B definitely is not '8' or '9', and secondly Sh. Paramjeet Anand in para 5 of the plaint has categorically given the date of payment by the Ministry of CS(OS) No.5
& conn. matters Page 15 of 60 Rehabilitation to the legal heirs of the grandfather (i.e Sh. Nathuram Anand) as 26.7.1956. Also in para 8 of the plaint when Sh. Paramjeet Anand has stated the date of 17.8.1956, the said date is with reference to the date of the agreement/Sale Deed Ex.PW1/D1 and mention of receipt of payment by a receipt, but without any date mentioned of the receipt. In any case even if there is ambiguity as regards the date of 17.8.1956 being or not stated as the date of payment for the Sale Deed/Ex.PW1/D1 or the date of execution of the agreement being the Sale Deed, yet on the aspect of actual date of receipt of consideration from Ministry of Rehabilitation this will have no bearing because of the date of 26.7.1956 being specifically so mentioned in para 5 of the plaint of CS(OS) No.575/2001, and added to this is the suggestion of date of payment being 26.7.1956 by defendant nos. 1 and 2 themselves to Sh. Paramjeet Anand on 9.5.2011. It is hence held that date of payment by Ministry of Rehabilitation is 26.7.1956, and which date is prior to the date of payment of consideration for the Sale Deed Ex.PW1/D1 as 17.8.1956. 13.(i) In my opinion, it has to be held that the suit property is an HUF property. The suit property will have to be an HUF property as CS(OS) No.5
& conn. matters Page 16 of 60 the plaintiff, in the opinion of this Court, has succeeded in discharging the burden of proof that the moneys for purchase of the suit property in terms of the Sale Deed Ex.PW1/D1 of Rs.1,257.10/- were in fact paid out of the 1/4th share of Sh. Mohan Lal Anand from the sum of Rs.5,411/- given on 26.7.1956 by the Ministry of Rehabilitation in terms of Ex.PW1/B because:-

"(A) the admitted fact is that it is Sh. Nathuram Anand who had filed the application Ex.PW1/B in the year 1947 (and this is so stated specifically in the application itself where the name of Sh. Nathuram Anand as the applicant is found as also the year 1947 at the left hand bottom of this document) and I take this document to be proved as rightly argued on behalf of Sh. Paramjeet Anand by placing reliance upon Section 90 of the Indian Evidence Act because this original document is of the year 1947/1956 (i.e application being made in the year 1947 and compensation paid of Rs.5,411/- on 26.7.1956), (B) that there is no dispute between the parties that Sh. Nathuram Anand died in the year 1948 prior to coming into force of the Hindu Succession Act, 1956 and thus the properties, whether moveable or immoveable, of Sh. Nathuram Anand would therefore devolve upon his four sons with one son being Sh. Mohan CS(OS) No.5
& conn. matters Page 17 of 60 Lal Anand, the father of the parties (C) since the date of payment written by the Ministry of Rehabilitation for a sum of Rs.5,411/- is on 26.7.1956, and that the amount of Rs.1,257.10/- paid on 17.8.1956 to the DLF Housing and Construction Limited for the Sale Deed/Ex.PW1/D1 dated 12.10.1956 is from the amount of Rs.5,411/- received just around 21 days earlier on 26.7.1956 vide Ex.PW1/B in view of the depositions of Sh. Virender Kumar Anand/PW-4 and that on such an important deposition if the same was to be challenged on behalf of Sh. Mohan Lal Anand and Sh. Naresh Chander Anand then there had to be specific cross-examination that the amount of Rs.5,411/- which was received from the Ministry of Rehabilitation vide Ex.PW1/B was not divided among the four brothers, however indubitably there is no specific cross-examination on this part of evidence of PW-4 of Rs.5411/- being divided among four brothers and there is only a general cross-examination at the end of cross- examination that the witness PW-4 is deposing falsely. (ii) Also since admittedly Sh. Mohan Lal Anand was only 24 years of age in the year 1956, therefore in my opinion merely because of admission of Sh. Paramjeet Anand in his cross-examination conducted CS(OS) No.5
& conn. matters Page 18 of 60 on 9.5.2011 that his father was working even prior to his birth, the said admission would not automatically mean and it has to be held that the father Sh. Mohan Lal Anand had with him that much saving from his earning (that too at the age of 24 years) for buying an immovable property being the suit property on payment of the consideration of Rs.1,257.10/-. As already noted above, the compensation which was received from the Ministry of Rehabilitation was on 26.7.1956 of the amount of Rs.5,411/-, and the consideration paid of Rs. 1,257.10/- under the Sale Deed for the suit property is 21 days thereafter on 17.8.1956 clearly showing co-relation between the payment received by Sh. Mohan Lal Anand, being 1/4th of the amount of Rs. 5,411/-, and payment of consideration made soon thereafter to DLF Housing and Construction Limited for purchase of the suit property. (iii) I therefore hold that in view of compensation application of Sh. Nathuram Anand to the Ministry of Rehabilitation Ex.PW1/B, the specific deposition of Sh. Virender Kumar Anand as PW-4, of Rs.5411/- being divided among the four sons of Sh. Nathuram Anand and to which there is no specific cross-examination, with the factum of close proximity of 21 days between the disbursement of compensation CS(OS) No.5
& conn. matters Page 19 of 60 by Ministry of Rehabilitation of Rs.5,411/- and the payment for purchase of the suit property by Sh. Mohan Lal Anand from DLF Housing and Construction Limited on 17.8.1956, it has to be held that the suit property was purchased by Sh. Mohan Lal Anand out of the funds inherited by him from his father Sh. Nathuram Anand who died in the year 1948 and funds were therefore HUF funds in the hands of Sh. Mohan Lal Anand, hence the suit property purchased from such funds has to be taken and is taken as an HUF property in the hands of Sh. Mohan Lal Anand though the sale deed is only in the name of Sh. Mohan Lal Anand.

14. The consequence of holding that the suit property is an HUF property is that even if Sh. Mohand Lal Anand is taken to have expired leaving behind his Will dated 9.3.2005, Sh. Mohan Lal Anand could have at best made a Will of his 1/5th share in the suit property in favour of Sh. Naresh Chander Anand, and which aspect of proof of the Will and its effect, is otherwise dealt with hereinafter. 15.(i) That takes us to the issue no.3 as to whether Sh. Mohan Lal Anand died leaving behind his Will dated 9.3.2005. CS(OS) No.5
& conn. matters Page 20 of 60 (ii) In my opinion, Sh. Naresh Chander Anand has been successful in proving this Will dated 9.3.2005 because this Will is proved through the deposition of the attesting witness to the Will Sh. Rajan Mahajan. Sh. Rajan Mahajan has deposed as DW-5. In his affidavit by way of evidence dated 22.3.2012 Sh. Rajan Mahajan, who is an Advocate, has deposed with respect to due execution and attestation of the Will and Sh. Mohan Lal Anand being of sound disposing mind. This witness has also deposed with respect to his appearing before the Sub-Registrar at the time of registering of the Will on 14.3.2005 when he again met the executant Sh. Mohan Lal Anand and the other attesting witness Sh. Satish Kumar. This witness has also deposed that in addition to the due execution and attestation of the Will, the thumb impression of Sh. Mohan Lal Anand was once again taken by the Sub- Registrar on the Will in the presence of the attesting witnesses and that Sh. Mohan Lal Anand again put his signatures on the back page of the Will in the presence of the attesting witness at the time of registration of the Will by the Sub-Registrar. This witness has further deposed with respect to the aspects of stamp being put of registration of the Will at the back side of the page of the Will, and of signing of the Will CS(OS) No.5
& conn. matters Page 21 of 60 by him and the other attesting witness Sh. Satish Kumar at the time of registration.

16. In addition to the aforesaid facts, whereby the Will dated 9.3.2005 of Sh. Mohan Lal Anand is proved, I would in the facts of this case also like to draw an inference in favour of due execution and registration of the Will as per Section 114 of the Indian Evidence Act which provides that courts have to draw a presumption that official acts would have been properly performed. The Will is undoubtedly a registered Will, and therefore in the facts of the present case I hold that the Sub-Registrar would have duly ensured the official act required of putting questions of the factum with respect to execution of the Will by Sh. Mohan Lal Anand and the attesting of the Will by the attesting witnesses, and that all three persons being the executant and the two attesting witnesses had again signed in the presence of the Sub-Registrar. 17.(i) Though learned counsel for Sh. Paramjeet Anand sought to argue that the Will is not proved by arguing existence of discrepancy in the cross-examination of Sh. Rajan Mahajan because allegedly Sh. Rajan Mahajan stated at one place that he was consulted CS(OS) No.5
& conn. matters Page 22 of 60 by Sh. Mohan Lal Anand in a few cases before execution of the Will but that he further stated that Sh. Rajan Mahajan met with Sh. Mohan Lal Anand only for the first time on 14.3.2005, and further that there is a discrepancy that the witness Sh. Rajan Mahajan has allegedly stated that he signed the Will on 14.3.2005 whereas the Will is dated 9.3.2005. (ii) In my opinion however none of these arguments urged on behalf of Sh. Paramjeet Anand have any substance because there is no contradiction in the deposition of Sh. Rajan Mahajan as is sought to be argued by Sh. Paramjeet Anand inasmuch as the set of questions put to Sh. Rajan Mahajan in his cross-examination on 17.7.2012 are to be seen in a series as a whole and such questions and answers only show that Sh. Rajan Mahajan deposed with respect to he being consulted by Sh. Mohan Lal Anand in certain cases prior to the first meeting for execution of the Will and the question allegedly being misinterpreted by Sh. Paramjeet Anand of signing of the Will by Sh. Rajan Mahajan only on 14.3.2005 is a misplaced one because when Sh. Rajan Mahajan answered the question as to when did Sh. Mohan Lal Anand actually come before Sh. Rajan Mahajan and Sh. Rajan Mahajan CS(OS) No.5
& conn. matters Page 23 of 60 stated that this was on 14.3.2005, but this question and answer is part of the series of questions pertaining to the Will and therefore answer of Sh. Rajan Mahajan of signing on 14.3.2005 is as regards the date of coming on 14.3.2005 for the registration of the Will. There is therefore no inconsistency of date of execution of the Will and registration of the Will because there are two separate dates of 9.3.2005 and 14.3.2005, first date being of execution of the Will and second date being of registration of the Will. (iii) Also, I reject the argument urged on behalf of Sh. Paramjeet Anand that merely by putting suggestions in cross-examination it is proved that deceased Sh. Mohan Lal Anand was not of sound mind for execution of the Will dated 9.3.2005, and this is more so because Sh. Mohan Lal Anand was defendant no.1 in the suit being CS (OS) No.575/2001 and he besides filing his written statement regularly contested the suit including by personally appearing in the suit till the time of his death in the year 2005. (iv) I therefore hold that Sh. Naresh Chander Anand has been successful in proving the Will dated 9.3.2005 as validly executed by Sh. Mohan Lal Anand. CS(OS) No.5
& conn. matters Page 24 of 60 18. However, it is noted that even if the Will of Sh. Mohan Lal Anand is proved, at best Sh. Naresh Chander Anand would only get 1/5th share of the suit property on account of there being five coparceners being the father Sh. Mohan Lal Anand and his four sons, and which share of 20% of Sh. Naresh Chander Anand would get increased to 40% in case it is held that the mother Smt. Sushila Rani Anand did not become an absolute owner because of Section 14(2) of the Hindu Succession Act. If Section 14(1) of the Hindu Succession Act applies and the mother has died intestate leaving behind the four sons of Sh. Mohan Lal Anand and Smt. Sushila Rani Anand, then each son of Sh. Mohan Lal Anand and Smt. Sushila Rani will have 1/4th right each in the suit property. The aspect as to what is the meaning and interpretation to be given to the Will dated 9.3.2005, as to whether the said Will has to be taken as conferring in favour of the mother Smt. Sushila Rani Anand, widow of Sh. Mohan Lal Anand as absolute ownership or only a life-estate as stated in the Will and after the death of Smt. Sushila Rani Anand the suit property vesting absolutely as an exclusive owner with Sh. Naresh Chander Anand as mother only had a life-estate, will now be thereafter examined. CS(OS) No.5
& conn. matters Page 25 of 60 19. The Will Ex.DW1/B dated 9.3.2005 states that by the Will life-estate is given by the executant Sh. Mohan Lal Anand in favour of his widow Smt. Sushila Rani Anand and that after her death the suit property was to be inherited by his son Sh. Naresh Chander Anand as an absolute owner. Great deal of arguments were addressed on this aspect as to whether or not there is application of Section 14(1) of the Hindu Succession Act whereby the life-estate bequeathed to Smt. Sushila Rani Anand did or did not become full estate/ownership. This relevant portion of the Will dated 9.3.2005 of Sh. Mohan Lal bequeathing life-estate to his wife Smt. Sushila Rani Anand is reproduced as under:-

"“My wife Smt. Sushila Rani shall hold and enjoy all my movable and immovable properties including the house bearing No-J-5/129, Rajouri Garden, New Delhi possessed by me at present and also which I may acquire in future during her life time and she will be having only life interest in the said properties and after her death all these properties shall be inherited by my son Naresh Chander Anand. In case, my life predeceases me, all my movable and immovable properties including the aforesaid house J-5/129, Rajouri Garden New Delhi shall be inherited by my son Naresh Chander Anand, who would become, the sole and exclusive owner of the said properties. My other sons including their family members hires etc, shall have absolutely no right of share in the said properties.” 20.(i) The case of the plaintiff Sh. Paramjeet Anand is that the effect of Smt. Sushila Rani Anand widow of Sh. Mohan Lal Anand getting a life-interest in the suit property, will convert this life-interest CS(OS) No.5
& conn. matters Page 26 of 60 into a complete ownership because of Section 14(1) of the Hindu Succession Act and for this purpose reliance is placed upon the judgment of the Supreme Court in the case of C. Masilamani Mudaliar and Others vs. The Idol of Sri Swaminathaswami Swaminathaswami Thirukoli and Others (1996 )8 SCC525. This is a judgment of a Division Bench of three judges of the Supreme Court and which holds that any right of a life-estate in an immovable property which is given to a Hindu widow for maintenance, since this right is given in recognition of the pre-existing right of the Hindu widow to get maintenance from her husband, both under the shastric law and/or the statutory provision of right to maintenance under the Hindu Adoptions and Maintenance Act, 1956 therefore such life-estate which is granted because of the pre-existing right of a Hindu widow, would convert itself into a full estate/full ownership in view of Section 14(1) of the Hindu Succession Act. I note that the relevant provision of the Hindu Adoptions and Maintenance Act entitling a wife to maintenance from her husband is the provision of Section 18(1) of this Act. The relevant paras of the judgment in the case of C. Masilamani CS(OS) No.5
& conn. matters Page 27 of 60 Mudaliar (supra) are paras 4,5,6,12,26,27,28 and 29 and these paras read as under:-

"The appellants are the alienees from Sellathachi, widow of “4. Somasundaram Pillai who had executed a Will, Ex. A-3 on 16-7-1950 bequeathing the suit properties to his wife and his cousin's widow Janakathachi mentioning thereunder as follows: relationship. I am duty-bound “Whereas I have no male or female issues and my wife (1) Sellathachi and (2) Janakathachi, wife of my senior paternal uncle's son Thabasuya Pillai are living with me and in my family and other than the other 2 persons, there is none else in my family. Amongst the aforesaid persons, the aforesaid Janakathachi has got only maintenance relationship and none else in my family have any right in the share or have maintenance to provide maintenance for the aforesaid two persons and I have no other duty to be performed. Therefore, after my lifetime, the undermentioned A Schedule property valued at Rs 2000 shall be got by the aforesaid two persons and shall be enjoyed in equal shares without any right to alienate the same and perform the charities as per their wish and after the lifetime of both the aforesaid persons, Govindasrasan Pillai, s/o Peria Pillai, of the aforesaid Eduvankudi Village shall be the trustee of A Schedule property and with the income derived from the undermentioned idol at Swamimalai Sri Swaminatha Swami Devasthanam, Kumbakonam Taluk, every month on the Krithigai Star Day and also do the charity of feeding the poor on the aforesaid day, and also shall put up the lamps everyday at the Subramania Swamiar Temple of the aforesaid Edavankudi Village and perform the pooja and the charity of feeding the poor every month on the Krithigai Star Day. Further in respect of the undermentioned B Schedule property valued at Rs 1000, after my lifetime, the aforesaid Govindasrasan Pillai himself shall be the trustee and from the revenue derived from the aforesaid property shall perform the pooja and the charity of feeding the poor as detailed above to the aforesaid Swaminatha Swami and the aforesaid Subramania Swamy. Amongst the aforesaid Sellathachi and Janakathachi, if one of the persons were to die survived by the other, the surviving member shall have the right to enjoy the A Schedule property in its entirety. This Deed of Will shall come into force only after my lifetime, and I shall have the right and authority to change or cancel this Deed of Will during my lifetime.” land shall perform the pooja to the 5. Somasundaram Pillai died in September 1950. The legatees Sellathachi and another had come into possession of the properties. Janakathachi died in the year 1960. In 1970, Sellathachi had appointed a CS(OS) No.5
& conn. matters Page 28 of 60 power of attorney holder who had alienated the suit properties and the appellants had purchased them under registered sale deed. The suit was filed for declaration that the legatees having succeeded to limited estate under the Will, the alienations made by Sellathachi were illegal. The trial court decreed the suit. The learned Single Judge allowed the appeal and dismissed the suit and in LPA No.161 of 1988 dated 2-7-1992, the Division Bench of the High Court has set aside the decree of the Single Judge holding that the legatees had succeeded to restricted estate under sub-section (2) of Section 14 of the Hindu Succession Act, 1956 (for short „the Act‟) and that, therefore, their rights have not blossomed into absolute estate. Thus, this appeal by special leave.

6. The question, therefore, is: whether Sellathachi, the widow of Somasundaram Pillai, had become the absolute owner, by operation of Section 14(1) of the Act?. Recital of the Will clearly indicates that the testator was conscious of the pre-existing legal position, namely, he was under an obligation to maintain his wife and also moral obligation to maintain his cousin's wife. He stated that “I am duty-bound to provide maintenance for the aforesaid two persons and I have no other duty to be performed.” He had stated that after his lifetime the two legatees would be entitled to take possession of the properties and enjoy the same in equal share without any right to alienate and to perform the charities as per his last wish. He also mentioned that if one of the legatees predeceases, the other surviving member would have the right to enjoy the properties mentioned in the Will. The right to maintenance and a charge on her husband's properties are pre-existing legal rights available to her. xxxxx xxxxx xxxxx respondent, two Judges of that a Bench of It is true, as rightly contended by Shri Rangam, learned counsel for 12. the this Court in Gumpha v. Jaibai considered the effect of the Will and had held that property acquired under the Will does not fall under Section 14(1). In that case, the Will was executed in the year 1941 and the testator died in 1958 after the Act had come into force. Therefore, this Court had held that she acquired right to maintenance under the Will as a restricted estate and by operation of Section 30 of the Act read with Section 14(2), she acquired a limited estate. The learned Judges appear to have construed the operation of sub-section (2) of Section 14 in the light of the language mentioned in the Will. It would be seen that the Will was executed in the year 1941. As per pre-existing law in 1941, she had only a right to maintenance. The learned Judges proceeded on the premise that a Hindu male's power to dispose of his property being absolute, it includes right to create limited or restricted estate in favour of a female. By operation of Section 30 of the Act the restricted estate under the Will comes under sub-section (2) of Section 14 as it is not a device under which she acquired the property under sub-section (1) thereof. However, the learned Judges noted that if CS(OS) No.5
& conn. matters Page 29 of 60 the maintenance was given in recognition of a pre-existing right, such an acquisition of property was taken out of sub-section (2) to promote the object of Section 14. The manner of acquisition under sub-section (1) includes inheritance etc. specifically mentioned in sub-section (1) before the commencement of the Act. Therefore, it was held that it does not include acquisition by Will. The construction of sub-sections (2) and (1) being consistent with Section 30 of the Act led to that conclusion, in the view of the learned Judges, that the words “in lieu of” or “arrears of” for maintenance appeared to be significant. xxxxx xxxxx xxxxx the right to equality, 26. It is true that Section 30 of the Act and the relevant provisions of the Act relating to the execution of the Wills need to be given full effect and the right to disposition of a Hindu male derives full measure thereunder. But removing handicaps and discrimination against a Hindu female by reason of operation of existing law should be in conformity with the right to equality enshrined in the Constitution and the personal law also needs to be in conformity with the constitutional goal. Harmonious interpretation, therefore, is required to be adopted in giving effect to the relevant provisions consistent with the constitutional animation to remove gender-based discrimination in matters of marriage, succession etc. Cognizant to these constitutional goals, Hindu Marriage Act, Hindu Adoption and Maintenance Act, Hindu Succession Act, etc. have been brought on statute removing the impediments which stood in the way under the Sastric law. Explanation I to Section 14(1) gives wide amplitude to the acquisition of property in the widest terms. It is merely illustrative and not exhaustive. The only condition precedent is whether Hindu female has a pre-existing right under the personal law or any other law to hold the property or the right to property. Any instrument, document, device etc. under which Hindu female came to possess the property — moveable or immovable — in recognition of her pre-existing right, though such instrument, document or device is worded with a restrictive estate, which received the colour of pre-existing restrictive estate possession by a Hindu female, the operation of sub-section (1) of Section 14 read with Explanation I, remove the fetters and the limited right blossoms into an absolute right.

27. As held by this Court, if the acquisition of the property attracts sub-section (1) of Section 14, sub-section (2) does not come into play. If the acquisition is for the first time, without any vestige of pre-existing right under the instrument, document or device etc. then sub-section (2) of Section 14 gets attracted. Sub-section (2) being in the nature of an exception, it does not engulf and wipe out the operation of sub-section (1). Sub-section (2) of Section 14 independently operates in its own sphere. The right to disposition of property by a Hindu under Section 30 is required to be understood in this perspective and if any attempt is made to CS(OS) No.5
& conn. matters Page 30 of 60 put restriction upon the property possessed by a Hindu female under an instrument, document or device, though executed after the Act had come into force, it must be interpreted in the light of the facts and circumstances in each case and to construe whether Hindu female acquired or possessed the property in recognition of her pre-existing right or she gets the rights for the first time under the instrument without any vestige of pre-existing right. If the answer is in the positive, sub-section (1) of Section 14 gets attracted. Thus construed, both sub-sections (1) and (2) of Section 14 will be given their full play without rendering either as otiose or aids as means of avoidance. In Gumpha case though the Will was executed in 1941 and the 28. executor died in 1958 after the Act had come into force, the concept of limited right in lieu of maintenance was very much in the mind of the executor when Will was executed in 1941 but after the Act came into force, the Will became operative. The restrictive covenant would have enlarged it into an absolute estate; but unfortunately the Bench had put a restrictive interpretation which in our considered view does not appear to be sound in law.

29. The legatee Sellathachi had right to maintenance under the Hindu Adoption and Maintenance Act when the property was given to her for maintenance. It must be in lieu of her pre-existing right to maintenance and the property given under the Will, therefore, must be construed to have been acquired by the legatee under the Will in lieu of her right to maintenance. That right to maintenance to a Hindu female received statutory recognition under the Hindu Adoption and Maintenance Act, 1956. She is entitled to realise maintenance from property of her husband and even in the hands of strangers except the bona fide purchasers for value whether notice of her right. She is equally entitled under Section 37 of the Transfer of Property Act to have charge created over the property for realisation of her maintenance. On the demise of the testator, she being the Class I heir but for the bequeath, is entitled to succeed as an absolute owner. In either of those circumstances, the question emerges whether she acquires a limited right under Section 14(2) for the first time under the Will. In the light of the facts and circumstances of the case and the legal setting, we are of the considered view that she having had under Sastric law, as envisaged in the Will, the properties in recognition of her pre-existing right to maintenance, it is not a right acquired for the first time under the instrument Will, but it is a reflection of the pre-existing right under the Sastric Law, which was blossomed into an absolute ownership after 1956 under Section 14(1) of the Act. Under these circumstances, it cannot be held that Sellathachi acquired the right to maintenance for the first time under the instrument Will. The Division Bench, therefore, does not appear to have approached the problem in the correct perspective. In view of the settled legal position right from Tulasamma case the right CS(OS) No.5
& conn. matters Page 31 of 60 acquired under the Will is in recognition of the pre-existing right to maintenance known under the Sastric law and was transformed into an absolute right under Section 14(1) wiped out the restrictive estate given under the Sastric law and Sellathachi as absolute owner of the property. The Division Bench of the High Court, therefore, was not correct in holding that Sellathachi has acquired only a limited estate under the Will and Section 14(2) attracts to the restrictive covenants contained in the Will limiting her right to maintenance for lifetime and, thereafter, the right to enjoy the income from the lands and on her demise, the income should go to the temples as mentioned in the Will is not correct in law."

(emphasis added) (ii) Reliance on behalf of the plaintiff Sh. Paramjeet Anand (and the counsel appearing for Sh. Ramesh Chander Anand) is also placed upon the judgments delivered by this Court in the cases of Reena Jain & Ors. Vs. Rajiv Kumar Saxena (2016) 159 DRJ139and Dalip Kumar Vs. Gopal Jain Manu DE/1874/2016 wherein this Court by relying on the ratio of C. Masilamani Mudaliar’s case (supra) has held that where a Will as per its language only gives a life-estate to a widow, yet such life-estate has to be taken as being granted to the widow on account of the pre-existing right of maintenance as contained in Hindu Adoptions and Maintenance Act, and therefore once there is a pre-existing right then the immovable property which is received by virtue of the pre-existing right, will not be taken as life- estate but the life-estate would get converted to a full ownership because of Section 14(1) of the Hindu Succession Act. CS(OS) No.5
& conn. matters Page 32 of 60 21. On behalf of Sh. Naresh Chander Anand, it is argued that if a Will only gives a life-estate, such life-estate cannot be converted into a full estate as per Section 14(1) of the Hindu Succession Act. It is argued by placing reliance upon a judgment of the Supreme Court in the case of Sharad Subramanyan Vs. Soumi Mazumdar and Others AIR (2006) SC1993that if a Will grants only life-interest then the life-interest has to be read as a life-interest and it cannot be converted into a full ownership because only life-interest has to be taken as being granted under the Will, and therefore Section 14(2) of the Hindu Succession Act applies and not Section 14(1) of the Hindu Succession Act. The relevant observations of the Supreme Court in the case of Sharad Subramanyan (supra) relied upon by Sh. Naresh Chander Anand are contained in paras 3,4,14,17 and 18 of the judgment and these paras read as under:-

"“3. Kamal Kumar Mitra entered into an agreement dated 22-5-1988 with T.K. Ramasubramanyan (father of Sharad Subramanyan, hereinafter “the appellant”) by which a tenancy was created in respect of the ground floor flat of certain premises situated at 13/1, Promothesh Barua Sarani, Kolkata (hereinafter “the suit property”) at a monthly rental of Rs 5000. A further agreement dated 1-11-1988 was made between Kamal Kumar Mitra and the present appellant Sharad Subramanyan for providing to the tenants the fittings and fixtures on the ground floor at a monthly charge of Rs 750. On 24-2-1989, there was a third agreement between Kamal Kumar Mitra and the appellant Sharad Subramanyan and a fourth on 28- 4-1989, by which the former agreed to lease the whole of terrace of the existing construction of the suit property to enable the appellant to CS(OS) No.5
& conn. matters Page 33 of 60 construct at his cost an additional floor. The demise was for a period of twenty-one years commencing from 1-4-1989 with a renewal clause for a further period of twenty-one years after expiry of every period of twenty- one years. Though the agreement created a lease for such a long period with a renewal clause, it was not registered.

4. On 19.3.1991, Kamal Kumar Mitra executed his last Will and Testament under which, he appointed Reba Mitra, his wife, as Executrix and on her death, the appellant and one Subir Kumar Deb as Executors. Under the Will, the Testator had given all his movable properties to Reba Mitra, but she was given only a life interest in the Suit Property. The Will further provided that on the death of the said Reba Mitra, the Executors would execute the Will and realise and collect the rents, issues and profits arising out of the Suit Property and distribute the same in the manner as prescribed in the Will. Kamal Kumar Mitra died on 26.9.1991 leaving behind his wife, Reba Mitra, as his sole heir. xxxxx xxxxx xxxxx In C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami 14. Swaminathaswami Thirukoil the views expressed in Tulasamma (supra) were reiterated as necessary for carrying forward the intention of the Parliament to ensure "...that women have an active role in the development process. Appropriate economic and social reforms should be carried out with a view to eradicate all social injustice."

: Hence, it was held that the limited estate, which had been conferred on the legatee in lieu of the right to maintenance under the Hindu Adoption and Maintenance Act, 1956, was in recognition of the pre-existing right to maintenance known under the Shastric law and it became an absolute right under Section 14(1) and the legatee became the absolute owner of the property. xxxxx xxxxx xxxxx 17. Learned Counsel further contended that there is no absolute rule that all properties demised to a female Hindu were necessarily in recognition of or in lieu of her tight to maintenance. It was possible, even after the Act came into force, to create a limited estate by reason of a gift or will. Such a situation would Mi within the ambit of Sub-section (2) of Section 14 of the Act as long as it was not in recognition of or in lieu of a right to maintenance under the Shastric Hindu Law or under a statute. Learned Senior Counsel relied on Section 30 of the Act, which recognises the right of a Hindu to dispose of self-acquired property by Will. Mr. Gupta relied on the judgment of this Court in Bhura v. Kashi Ram which was also a case of limited estate conferred on a female Hindu by a Will. This Court held that, upon a proper construction of the Will, the bequeathal in favour of the female Hindu was clearly indicative of: “......the testator's intention of only creating a life interest in her and nothing more and the various expressions used therein are indicative CS(OS) No.5
& conn. matters Page 34 of 60 of and are reconcilable only with the hypothesis that the testator was creating an estate in favour of ...(the female Hindu)... only for her lifetime and not an absolute estate. Thus, in view of the fact that there were no indications, either in the Will or externally, to indicate that the property had been given to the female Hindu in recognition of or in lieu of her right to maintenance, it was held that the situation tell within the ambit of Sub-section (2) of Section 14 of the Act and that the restricted life estate granted to the female Hindu could not be enlarged into an absolute estate. Learned Counsel for the respondents relied strongly cm this judgment and contended that there was no proposition of law that all dispositions of property made to a female Hindu were necessarily in recognition of her right to maintenance whether under the Shastric Hindu Law or under the statutory law. Unless the said fact was independently established to the satisfaction of the court, the grant of the property would be subject to the restrictions contained therein, either by way of a transfer, gift or testamentary disposition. Learned Counsel also distinguished the three cases cited by the learned Counsel for the appellant that in each, the circumstances clearly indicated that the testamentary disposition was in lieu of the right of maintenance of the female Hindu. We think that this contention is well merited and needs to be upheld.

18. Turning to the facts of the present case, we notice that not only was there no material to indicate to the High Court that the property was given to Reba Mitra in lieu of her right of maintenance, but such an argument was not even advanced before the Court. Even the impugned judgment of the High Court observes: “It is not the case of the appellant that at the time when K.K. Mitra executed the Will, his wife was entitled to enforce her right of maintenance under the provisions of Hindu Adoptions and Maintenance Act or otherwise. She had been undisputedly living with her husband upon her husband's death till the Will was probated, she was enjoying the property as her own. Even in terms of the Will dt. 19.3.1991 she had a right of enjoyment in respect of the entire property.” The High Court then noticed Section 30 of the Act which empowers a Hindu possessed of any property to execute a Will; and confer a grant in favour of another either absolutely or to a limited extent; even to the extent of depriving his natural heirs from enjoying the estate left by him. We think that the High Court was right in taking this view. The High Court also took notice of the fact that there was no material on record from which it could be concluded that the disposition of life estate in favour of Reba Mitra in the Will of her husband, Kamal Kumar Mitra, was in lieu of or in recognition of her right of maintenance. Consequently, we agree with the finding of the High Court that Reba Mitra had only a limited right, namely, life interest in the Suit Property. CS(OS) No.5
& conn. matters Page 35 of 60 Thus, she could not have created a long-term lease as she has purportedly done."

(underlining added) 22. On behalf of Sh. Naresh Chander Anand reliance is also placed upon the observations made by the Supreme Court in the cases of Gaddam Ramakrishnareddy & Ors. Vs. Gaddam Rami Reddy AIR2011SC179 Mst. Karmi Vs. Amru and Ors. AIR1971SC745and Sadhu Singh Vs. Gurudwara Sahib Narike and Others (2006) 8 SCC75 The relevant observations of the Supreme Court in the case of Sadhu Singh (supra) which are relied upon are paras 1 to 5, 11, 12, 13 and 14, and which read as under:-

"“1. One Ralla Singh held some property. It was self- acquired. Isher Kaur was his wife. They had no children. On 7.10.1968, Ralla Singh executed a will. Ralla Singh died on 19.3.1977. His widow Isher Kaur on 21.1.1980, purported to gift the property in favour of a Gurdwara. The appellant filed a suit challenging the deed of gift. He also prayed for recovery of possession after the death of Isher Kaur. The appellant claimed that under the will of Ralla Singh, Isher Kaur took only a life estate and the properties were to vest in the appellant and his brother. On the terms of the will under which she took the properties, Isher Kaur had no right to gift the property to the Gurdwara. She was bound by the terms of the bequest. Isher Kaur and the Gurdwara, contended that the property received by Isher Kaur on the death of her husband was as his heir and it was taken by her absolutely and she was competent to deal with the property. It was pleaded that in any event, Section 14(1) of the Hindu Succession Act entitled her to deal with the property as an absolute owner. The appellant countered that Isher Kaur having taken the property under the disposition of her husband, was bound by its terms and she had only a life estate and no competence to donate the property. It was a case to which Section 14(2) of the Hindu Succession Act applied and the limitation on rights imposed by the will was binding on Isher Kaur. Her estate could not get enlarged under Section 14(1) of the Act. CS(OS) No.5
& conn. matters Page 36 of 60 2. The trial court held that the will propounded by the appellant was not genuine. On that basis, it dismissed the suit holding that Isher Kaur had taken the property absolutely on the death of her husband as an heir and under the circumstances she was entitled to donate the property to the Gurdwara. The appellant filed an appeal. Pending the appeal, on 17.6.1996, Isher Kaur died. The lower appellate court held that the will propounded by the appellant was proved to be the last will and testament of Ralla Singh. The appellant had proved its due and valid execution. The will was thus upheld. The Court held that on the terms of the Will, Isher Kaur had only a life estate or limited interest in the property and she had no right to transfer the property by way of gift. Since Isher Kaur had taken the property under the will which placed a restriction on her right, Section 14(2) of the Hindu Succession Act applied. Consequently, the appellant as the legatee under the will was entitled to recover possession of the property on the termination of the life estate of Isher Kaur. Thus the trial court decree was reversed and the suit decreed. On behalf of the donee Gurdwara, a Second Appeal was filed in the High Court. The High Court, by what can even charitably only be called a thoroughly unsatisfactory judgment, reversed the decision of the lower appellate court. It did not strain its thought process. Purporting to apply the ratio of the decision of this Court in V. Tulasamma v. V. Shesha Reddi and Raghubar Singh v. Gulab Singh that court held that Section 14(1) of the Act applied to the case. It did not refer to the decisions relied on, on behalf of the appellant herein. Though it accepted the finding of the appellate court on the genuineness and due execution of the will by Ralla Singh, it did not specifically deal with the question whether Section 14(2) of the Act was attracted to the case. Thus, reversing the decision of the lower appellate court, the High Court dismissed the suit. The appellant - plaintiff, is before us challenging the decision in Second Appeal.

3. The finding that Ralla Singh had executed a will on 7.10.1968 rendered by the lower appellate court has not been upset by the Second Appellate Court. In fact, it has considered the Second Appeal on the basis that the will has been executed and the property came to Isher Kaur on the basis of that Will. What it has presumably held is that Isher Kaur had pre-existing right in the property and consequently the limitation placed on her rights in the Will, could not prevail in view of Section 14(1) of the Hindu Succession Act. It did not bear in mind that the property was the separate property or self-acquired property of Ralla Singh and his widow, though might have succeeded to the property as an absolute and sole heir if Ralla Singh had died intestate on 19.3.1977, had no pre- existing right as such. The widow had, at best, only a right to maintenance and at best could have secured a charge by the process of court for her maintenance under the Hindu Adoptions and Maintenance Act in the separate property of her husband. May be, in terms of Section 39 of the Transfer of Property Act, she could have also enforced the charge even as CS(OS) No.5
& conn. matters Page 37 of 60 against an alienee from her husband. Unlike in a case where the widow was in possession of the property on the date of the coming into force of the Act in which she had a pre-existing right at least to maintenance, a situation covered by Section 14(1) of the Hindu Succession Act, if his separate property is disposed of by a Hindu male by way of testamentary disposition, placing a restriction on the right given to the widow, the question whether Section 14(2) would not be attracted, was not considered at all by the High Court. It proceeded as if the ratio of V. Tulasamma (supra) would preclude any enquiry in that line.

4. Under Section 18 of the Hindu Adoptions and Maintenance Act, a Hindu wife is entitled to be maintained by her husband during her life time, subject to her not incurring the disqualifications provided for in Sub-section (3) of that Section. The widow is in the list of dependants as defined in Section 21 of the Act. The widow remains a dependant so long as she does not remarry. Under Section 22, an obligation is cast on the heirs of the deceased Hindu to maintain the dependant of the deceased out of the estate inherited by them from the deceased. Under Sub-section (2), where a dependant has not obtained by testamentary or intestate succession, any share in the estate of a Hindu dying after the commencement of the Act, the dependant would be entitled, but subject to the provisions of the Act, to maintenance from those who take the estate. It is seen that neither Section 18 relating to a wife nor Section 21 dealing with a widow, provides for any charge for the maintenance on the property of the husband. To the contrary, Section 27 specifies that a dependant's claim for maintenance under that Act, shall not be a charge on the estate of the deceased unless one would have been created by the will of the deceased, by a decree of court, by an agreement between the dependant and the owner of the estate or otherwise. Thus a widow has no charge on the property of the husband. Section 28 provides that where a dependant had a right to receive maintenance out of an estate, that right could be enforced even against a transferee of the property if the transferee had notice of the right, or if the transfer is gratuitous, but not against a transferee for consideration without notice of the right. Section 28 is in pari materia with Section 39 of the Transfer of Property Act. The Kerala High Court in Kaveri Amma v. Parameswari Amma and Ors. has liberally interpreted the expression "right to receive maintenance" occurring in the section as including a right to claim enhanced maintenance against the transferee. The sum and sub-total of the right under the Hindu Adoptions and Maintenance Act is only to claim maintenance and the right to receive it even against a transferee. In the absence of any instrument or decree providing for it, no charge for such maintenance is created in the separate properties of the husband.

5. In the case on hand, since the properties admittedly were the separate properties of Ralla Singh, all that Isher Kaur could claim de hors the will, is a right to maintenance and could possibly proceed against CS(OS) No.5
& conn. matters Page 38 of 60 the property even in the hands of a transferee from her husband who had notice of her right to maintenance under the Hindu Adoptions and Maintenance Act. No doubt, but for the devise, she would have obtained the property absolutely as an heir, being a Class I heir. But, since the devise has intervened, the question that arises has to be considered in the light of this position. xxxxx xxxxx xxxxx 11. On the wording of the section and in the context of these decisions, it is clear that the ratio in V. Tulasamma v. V. Shesha Reddi (supra) has application only when a female Hindu is possessed of the property on the date of the Act under semblance of a right, whether it be a limited or a pre- existing right to maintenance in lieu of which she was put in possession of the property. The Tulasamma ratio cannot be applied ignoring the requirement of the female Hindu having to be in possession of the property either directly or constructively as on the date of the Act, though she may acquire a right to it even after the Act. The same is the position in Raghubar Singh v. Gulab Singh (supra) wherein the testamentary succession was before the Act. The widow had obtained possession under a Will. A suit was filed challenging the Will. The suit was compromised. The compromise sought to restrict the right of the widow. This Court held that since the widow was in possession of the property on the date of the Act under the will as of right and since the compromise decree created no new or independent right in her, Section 14(2) of the Act had no application and Section 14(1) governed the case, her right to maintenance being a pre-existing right. In Mst. Karmi v. Amru and Ors., the owner of the property executed a will in respect of a self-acquired property. The testamentary succession opened in favour of the wife in the year 1938. But it restricted her right. Thus, though she was in possession of the property on the date of the Act, this Court held that the life estate given to her under the will cannot become an absolute estate under the provisions of the Act. This can only be on the premise that the widow had no pre- existing right in the self-acquired property of her husband. In a case where a Hindu female was in possession of the property as on the date of the coming into force of the Act, the same being bequeathed to her by her father under a will, this Court in Bhura and Ors. v. Kashi Ram, after finding on a construction of the will that it only conferred a restricted right in the property in her, held that Section 14(2) of the Act was attracted and it was not a case in which by virtue of the operation of Section 14(1) of the Act, her right would get enlarged into an absolute estate. This again could only be on the basis that she had no pre-existing right in the property. In Sharad Subramanyan v. Soumi Mazumdar and Ors. this Court held that since the legatee under the will in that case, did not have a pre-existing right in the property, she would not be entitled to rely on Section 14(1) of the Act to claim an absolute estate in the property bequeathed to her and her rights CS(OS) No.5
& conn. matters Page 39 of 60 were controlled by the terms of the will and Section 14(2) of the Act. This Court in the said decision has made a survey of the earlier decisions including the one in Tulasamma. Thus, it is seen that the antecedents of the property, the possession of the property as on the date of the Act and the existence of a right in the female over it, however limited it may be, are the essential ingredients in determining whether Sub-section (1) of Section 14 of the Act would come into play. What emerges according to us is that any acquisition of possession of property (not right) by a female Hindu after the coming into force of the Act, cannot normally attract Section 14(1) of the Act. It would depend on the nature of the right acquired by her. If she takes it as an heir under the Act, she takes it absolutely. If while getting possession of the property after the Act, under a devise, gift or other transaction, any restriction is placed on her right, the restriction will have play in view of Section 14(2) of the Act.

12. When a male Hindu dies possessed of property after the coming into force of the Hindu Succession Act, his heirs as per the schedule, take it in terms of Section 8 of the Act. The heir or heirs take it absolutely. There is no question of any limited estate descending to the heir or heirs. Therefore, when a male Hindu dies after 17.6.1956 leaving his widow as his sole heir, she gets the property as class I heir and there is no limit to her estate or limitation on her title. In such circumstances, Section 14(1) of the Act would not apply on succession after the Act, or it has no scope for operation. Or, in other words, even without calling in aid Section 14(1) of the Act, she gets an absolute estate.

13. An owner of property has normally the right to deal with that property including the right to devise or bequeath the property. He could thus dispose it of by a testament. Section 30 of the Act, not only does not curtail or affect this right, it actually reaffirms that right. Thus, a Hindu male could testamentary dispose of his property. When he does that, a succession under the Act stands excluded and the property passes to the testamentary heirs. Hence, when a male Hindu executes a will bequeathing the properties, the legatees take it subject to the terms of the will unless of course, any stipulation therein is found invalid. Therefore, there is nothing in the Act which affects the right of a male Hindu to dispose of his property by providing only a life estate or limited estate for his widow. The Act does not stand in the way of his separate properties being dealt with by him as he deems fit. His will hence could not be challenged as being hit by the Act.

14. When he thus validly disposes of his property by providing for a limited estate to his heir, the wife, the wife or widow has to take it as the estate falls. This restriction on her right so provided, is really respected by the Act. It provides in Section 14(2) of the Act, that in such a case, the widow is bound by the limitation on her right and she cannot claim any higher right by invoking Section 14(1) of the Act. In other words, conferment of a limited estate which is otherwise valid in law is reinforced CS(OS) No.5
& conn. matters Page 40 of 60 by this Act by the introduction of Section 14(2) of the Act and excluding the operation of Section 14(1) of the Act, even if that provision is held to be attracted in the case of a succession under the Act. Invocation of Section 14(1) of the Act in the case of a testamentary disposition taking effect after the Act, would make Sections 30 and 14(2) redundant or otios. It will also make redundant, the expression 'property possessed by a female Hindu' occurring in Section 14(1) of the Act. An interpretation that leads to such a result cannot certainly be accepted. Surely, there is nothing in the Act compelling such an interpretation. Sections 14 and 30 both have play. Section 14(1) applies in a case where the female had received the property prior to the Act being entitled to it as a matter of right, even if the right be to a limited estate under the Mitakshara law or the right to maintenance.” (underlining added) 23. Before referring to the observations of different judgments of the Supreme Court which have been relied upon by the parties, it is required to be noted that it is the law that a decision rendered by a larger number of judges of a Division Bench of the Supreme Court will prevail over a judgment given by Division Bench of a lesser number of judges. This is being stated because the decision of C. Masilamani Mudaliar (supra) is a decision of three judges whereas the decisions of the Supreme Court in Sharad Subramanyan’s case (supra) and Sadhu Singh’s case (supra) are of two judges. 24.(i) Let us first discuss as to what is the ratio of the judgment of the Supreme Court in the case of C. Masilamani Mudaliar (supra) with reference to the relevant observations given by the Supreme CS(OS) No.5
& conn. matters Page 41 of 60 Court in different paras of the said judgment. Supreme Court in the judgment in the case of C. Masilamani Mudaliar (supra) specifically overruled the judgment of a Division Bench of two judges of the Supreme Court in the case of Gumpha (Smt.) & Others Vs. Jaibai (1994) 2 SCC511and which had held that where a Will gives a life- estate then such life-estate will remain a life-estate as the Will is an instrument falling under Section 14(2) of the Hindu Succession Act as a Hindu male has full freedom to deal with his estate and therefore the Hindu male can create only a life-estate by his Will and such life- estate given will not become full estate/ownership. Therefore, before we go to the relevant observations of the Supreme Court in C. Masilamani Mudaliar’s case (supra) let us see what were the facts of Gumpha’s case (supra) and the ratio laid down by the Supreme Court in Gumpha’s case (supra). In Gumpha’s case (supra) the issue was that whether the life-estate given to a widow under a Will does or does not get converted into a full estate because of Section 14(1) of the Hindu Succession Act when by a Will specifically only a life-estate is bequeathed. The issue has been specifically stated by the Supreme CS(OS) No.5
& conn. matters Page 42 of 60 Court in paras 1 to 3 of Gumpha’s case (supra) and these paras read as under:-

"“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 CS(OS) No.5
& conn. matters Page 43 of 60 Sub-section (1) of Section 14 read with the explanation. In other words, what is the dichotomy between two sub-sections 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. Munna Lal v. S.S. Raj Kumar). They too became, 'a stock of descent' (Kalawatibai v. Soiryabai). 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. Munna Lal v. S.S. Raj Kumar & Bai Vijia 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 Kalawatibai (supra) 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‟. (underlining added) (ii) On these questions framed, the Supreme Court in Gumpha’s case (supra) held that the life-estate which is given under a Will falls within the scope of Section 14(2) of the Hindu Succession Act and not within the scope of Section 14(1) of the Hindu Succession Act and the life-estate granted by a Will is not converted into a full ownership. The relevant observations of the Supreme Court so holding are contained in paras 6, 7, 9, 11 and 12 of Gumpha’s case (supra), and these paras read as under:-

"CS(OS) No.5
& conn. matters Page 44 of 60 “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, 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 Chapter 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 Sub-section (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. Munna Lal's case, was reiterated in Mangal Singh v. Shrimati Rattno, reaffirmed in Badri Pershad v. Smt. Kanso Devi, advanced further in Tulasamma's case (supra) 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 CS(OS) No.5
& conn. matters Page 45 of 60 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 Sub-section (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 Pershad's case (supra); (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 individuals distinction between a Hindu male and female in matters of intestate succession; (4) that Sub-section (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 and not in a manner so as to destroy the effect of the main provision.” xxxxx xxxxx xxxxx 9. The Court by interpretative process, thus, removed the anomaly arising out of 'inapt drafting' by construing Sub-section (1) widely and reading Sub-section (2) as a proviso. But this wide meaning has to be so read as to be in conformity with Section 30 and Sub-section (2) of Section 14. Tulasamma's case (supra) 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 Sub-section (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 Sub-section (2) of Section 14. The right of maintenance explained in Tulasamma and reiterated in Bai Vijia's 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 Sithaya, a life estate created under a Deed of Settlement was held to be an instrument contemplated under Sub-section (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 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 Sub-section (2) of Section 14. It does not curtail or erode the absolute estate which comes into operation CS(OS) No.5
& conn. matters Page 46 of 60 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 Sub-section (2) then it would be beyond the purview of Sub-section . (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. Sub-section (2) of Section 14 was read as proviso or exception to Sub-section (1) so that it may impinge as little as possible on . the broad sweep of the ameliorative provision contained in Sub-section (1). In Tulasamma it was observed that, 'it cannot be construed in a manner which would rob sub-section of its efficacy and deprive a Hindu female of the protection sought to be given to her by Sub- section (1)'. True it is an exception to Sub-section (1) and should be read in such a manner as not to rob Sub-section (1), 'of that modicum of certainty which it mast always . possess'. Yet the field of operation of the two sub-sections 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. xxxxx xxxxx xxxxx 11. Acquisition of property under a will is not mentioned under Sub- section (1). It squarely falls under Sub-section (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: includes both movable and “Section 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" 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 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 Stridhana the commencement of this Act. (2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court of under an award where the immediately before CS(OS) No.5
& conn. matters Page 47 of 60 terms of the gift, will or other instrument of the decree, order or award prescribe a restricted estate in such property.” The explanation widens the ambit of Sub-section (1) and extends it to any acquisition mentioned in it by the first part the operations of Sub-section (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 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 Sub-section (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 he extended to those acquisition which are specifically dealt with by Sub- section (2). Its operation has to be confined to such an acquisition which is not covered by subsection (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 Sub-section (2). A reading of two sub-sections 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 then what was enjoyed by a male Hindu. CS(OS) No.5
& conn. matters Page 48 of 60 In Tulasamma's 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; Kuldeep 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 subsection (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 sub-sections 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.” (underlining added) 25. It is therefore seen that in Gumpha’s case (supra) there was a Will executed in favour of the widow which specifically gave only a life-estate. Supreme Court held in Gumpha’s case (supra) that the life-interest/life-estate in favour of a widow did not convert the life-interest/life-estate into a full ownership because by a Will a Hindu male had a right to give restricted ownership in his property to his widow. Supreme Court has in para 9 in Gumpha’s case (supra) specifically held that legislature was aware of the unrestricted power of the Hindu male to dispose of his property and which is recognized as Section 14(2) of the Hindu Succession Act and therefore such right to give full estate by a Hindu male cannot be curtailed by converting CS(OS) No.5
& conn. matters Page 49 of 60 the life-estate into full estate and the Will granting the life-estate has to be taken as a document/instrument which is covered under Section 14(2) and not Section 14(1) of the Hindu Succession Act. In para 12 of the judgment in Gumpha’s case (supra) Supreme Court has observed that a Hindu can bequeath his interest even in a joint property and the effect on the right of the widow of the testator given as life-estate for maintenance is for maintenance and not in lieu of maintenance i.e life-estate is given for maintenance and not in lieu of maintenance, and consequently the life-estate granted to the widow falls under Section 14(2) and not under Section 14(1) of the Hindu Succession Act.

26. In the judgment in the case of C. Masilamani Mudaliar (supra) it is seen that the Will was dated 16.7.1950 and under the Will the property which was given to the widow was to provide for the maintenance of the widow. In spite of the fact that the Will in the case of C. Masilamani Mudaliar (supra) gave the property towards maintenance yet the Supreme Court held that the property which was given for maintenance by such wording of the Will, however the property given as a life-estate has to be taken as being given towards a CS(OS) No.5
& conn. matters Page 50 of 60 pre-existing right of maintenance which existed under the shastric law and/or Hindu Adoptions and Maintenance Act and therefore the property given as life-interest for maintenance would be converted into a full ownership. In para 12 of the judgment in the case of C. Masilamani Mudaliar (supra) reference is made to the judgment in the case of Gumpha (supra) and it is observed that judgment in the case of Gumpha (supra) proceeded on the basis that the right of a Hindu male to dispose of his property is absolute and therefore there is a right to create a limited/restricted estate/life-estate in favour of a female but however if the right to maintenance can be read as being given in recognition of pre-existing rights as per C. Masilamani Mudaliar’s case (supra), then the property given for maintenance would be taken out of Section 14(2) and would be included under Section 14(1) of the Hindu Succession Act. Para 26 of the judgment in the case of C. Masilamani Mudaliar’s (supra) holds that when interpretations have to be given to the provision of a statute then the same should be in conformity with the constitutional goals to remove any handicap or discrimination against a Hindu female and all that was required for a property which is given as a life-estate to a Hindu CS(OS) No.5
& conn. matters Page 51 of 60 female for becoming a full owner thereof was that the Hindu female must be found to have a pre-existing right either under the personal law or any other law of the country and that this personal law or other law would include right to maintenance under the law of the country which is the Hindu Adoptions and Maintenance Act. This is so categorically clarified in the very first line of para 29 of the said judgment where it is specified that the widow in C. Masilamani Mudaliar’s case (supra) had a pre-existing right to maintenance under the Hindu Adoptions and Maintenance Act when the property was given to her for maintenance. I would like to note that the provision of Hindu Adoptions and Maintenance Act which is not stated in para 29 is the provision of Section 18 of the Hindu Adoptions and Maintenance Act which gives right to the wife for maintenance from the property of her husband. Second line of para 29 of the judgment in the case of C. Masilamani Mudaliar’s (supra) lays down a specific ratio that once there is a pre-existing right of a Hindu wife to maintenance because of the Hindu Adoptions and Maintenance Act, then because of this reason the property given to the Hindu female has to be taken in lieu of her pre-existing right to maintenance and CS(OS) No.5
& conn. matters Page 52 of 60 therefore the property given under the Will for a limited right of a life- estate, the life-estate will blossom into full ownership because of Section 14(1) of the Hindu Succession Act. Referring to para 28 of the judgment in the case of Gumpha (supra) in the later para 29 of the judgment in the case of C. Masilamani Mudaliar (supra), the Supreme Court has observed in the case of C. Masilamani Mudaliar (supra) that the restrictive interpretation put by the Bench of two Judges in the case of Gumpha (supra) that the life-estate will remain a life-estate is not sound in law and the Division Bench in the case of Gumpha (supra) did not approach the problem from a correct prospective by interpreting right of life-estate given under the Will only as a life-estate and not to have become a full ownership which it should be as per Section 14(1) of the Hindu Succession Act. In para 29 by referring to V. Tulasamma and Others Vs. Sesha Reddy (Dead) by Lr's (1977) 3 SCC99 it is observed that a right acquired under a Will can be because of pre-existing right of maintenance under the shastric law, and once that pre-existing right to maintenance exists, under the shastric law then because of Section 14(1) of the Hindu Succession Act the restrictive estate given under the shastric law is CS(OS) No.5
& conn. matters Page 53 of 60 wiped out and the widow becomes absolute owner of the property. The judgment in the case of Gumpha (supra) was therefore set aside by holding that what is required to be seen is not the language of the Will as to whether by the Will a Hindu husband gave the property to the wife as a life-estate or for maintenance but the issue was whether what is given as a life-estate or maintenance to the widow/wife is or is not because of a pre-existing right, and that since a pre-existing right clearly exists either under a shastric law or under Section 18 of the Hindu Adoptions and Maintenance Act, and once there does exist a pre-existing right for a life-estate to be created or for maintenance to be given, then the limited interest/life-interest/life-estate will get converted into the full ownership because of Section 14(1) of the Hindu Succession Act which specifically lays down that once there is a pre-existing right then what is given pursuant to a document being a Will would not result in a restrictive estate but the life-estate would become a full ownership.

27. I may note that though in the case of Sharad Subramanyan (supra) the Division Bench does make reference to the judgment of C. Masilamani Mudaliar (supra) , however reference is CS(OS) No.5
& conn. matters Page 54 of 60 made to the judgment of C. Masilamani Mudaliar (supra) without referring to the specific ratio laid by the judgment in C. Masilamani Mudaliar (supra) in paras 29 and 30 of the judgment and which paras have already been reproduced above by this Court. Also, in the case of Sharad Subramanyan (supra) it had escaped the attention of the Hon‟ble Supreme Court that in the case of C. Masilamani Mudaliar (supra), Gumpha’s case (supra) was specifically overruled and which Gumpha’s case (supra) had held that a life-estate given to the Hindu wife/widow would remain as life-estate and would not get converted into a full ownership. The Supreme Court held that the ratio in Gumpha’s case (supra) was not the correct position of law because the Supreme Court held in the case of C. Masilamani Mudaliar (supra) that irrespective of the wording of a Will or an instrument giving property to a Hindu wife/widow as a life-estate for maintenance this is not an aspect in itself since what has to be seen is whether the property which is given as maintenance or life-estate is or is not in recognition of a pre-existing right, and that once there is a pre-existing right either because of shastric law or because of Section 18 of the Hindu Adoptions and Maintenance Act, the property given as life- CS(OS) No.5
& conn. matters Page 55 of 60 estate or maintenance under a Will or any instrument since it is to be taken in recognition of the pre-existing right, therefore the life-estate gets converted into a full ownership.

28. Accordingly with utmost respect and humility in my opinion the Division Bench of two Judges of the Supreme Court in the case of Sharad Subramanyan (supra) will not bind this Court although in the case of Sharad Subramanyan (supra) because of use of the expression „property being given for maintenance‟, the property given was held to be taken only as a life-estate though the law as laid down by the larger number of judges of the Division Bench in C. Masilamani Mudaliar’s case (supra) is that what is important is not the language of the Will which gives the Hindu widow/wife life-estate or maintenance from an immovable property, but what is to be seen is whether the life-estate or maintenance given is because of or not any pre-existing right of a wife/widow, and which pre-existing right definitely does exist, prior to passing of the Hindu Adoptions and Maintenance Act because of the shastric law, or after the passing of the Hindu Adoptions and Maintenance Act because of Section 18 of the Hindu Adoptions and Maintenance Act. Therefore with all CS(OS) No.5
& conn. matters Page 56 of 60 humility I hold that it is the ratio of the judgment in C. Masilamani Mudaliar’s case (supra) which will hold the field and not the ratio of a Division Bench of lesser number of two judges of the Supreme Court in the case of Sharad Subramanyan (supra).

29. The judgment relied upon by Sh. Naresh Chander Anand in the case of Sadhu Singh (supra) will again not apply for two reasons. Firstly, the judgment of Sadhu Singh (supra) does not refer to the judgment of the Supreme Court by the Division Bench of three Judges in the case of C. Masilamani Mudaliar (supra). The second reason is that everything which is observed and held by the Division Bench of two Judges in Sadhu Singh (supra) is identical to what is held by the Supreme Court in Gumpha's case (supra) but the judgment of the Division Bench of two Judges in Gumpha's case (supra) has been over ruled by the Division Bench of three judges in the case of C. Masilamani Mudaliar (supra). In my opinion, therefore, Sh. Naresh Chander Anand can take no benefit of the judgment in the case of Sadhu Singh (supra).

30. For the self same reasons given for holding that Sh. Naresh Chander Anand cannot take benefit of judgments in the cases CS(OS) No.5
& conn. matters Page 57 of 60 of Sadhu Singh (supra) and Sharad Subramanyan (supra), Sh. Naresh Chander Anand cannot also place reliance upon the judgment of the Supreme Court in the case of Gaddam Ramakrishnareddy (supra).

31. Sh. Naresh Chander Anand also cannot seek any benefit of the judgment in Mst. Karmi's case (supra) as the said judgment of two paras does not in any manner lay down any law as regards the interpretation of Sections 14(1) and 14(2) of the Hindu Succession Act that whether the life-estate given to a widow is or is not referable to a pre-existing right of maintenance and that once the right of maintenance of life-estate given to a widow under a Will is traceable to a pre-existing right of maintenance (whether under the shastric law or under the Hindu Adoptions and Maintenance Act); the life-estate or a right to maintenance given as life-interest will convert into a full estate and ownership because of Section 14(1) of the Hindu Succession Act in view of the ratio in the case of C. Masilamani Mudaliar (supra).

32. In view of the aforesaid discussion, it is held that even if issue No.3 is held in favour of Sh. Naresh Chander Anand that Sh. CS(OS) No.5
& conn. matters Page 58 of 60 Mohan Lal Anand died leaving his valid Will dated 9.3.2005, yet all the four sons of Sh. Mohan Lal Anand and Smt. Sushila Rani Anand will be equal co-owners of the suit property because what is inherited by Smt. Sushila Rani Anand as a life-estate under the Will of Sh. Mohan Lal Anand dated 9.3.2005, gets converted to a full ownership as this life- estate is given to Smt. Sushila Rani Anand because of her pre-existing right of maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, and since Smt. Sushila Rani Anand who became the absolute owner of the suit property has died intestate, all her four sons being the plaintiff in CS (OS) No.575/2001 and the defendant nos. 2 to 4 being Sh. Naresh Chander Anand, Sh. Ramesh Chander Anand and Sh. Suresh Chander Anand will get each 1/4th ownership rights in the suit property.

33. In view of the aforesaid discussion, issue No.5 is also answered against Sh. Naresh Chander Anand holding that he as the plaintiff in CS(OS) No.1588/2007 is not entitled to decree of possession with respect to the ground floor of the suit property. Relief In view of the aforesaid discussion, CS(OS) No.575/2001 is decreed by passing a preliminary decree of partition and consequently CS(OS) No.5
& conn. matters Page 59 of 60 each of the four sons of Sh. Mohan Lal Anand and Smt. Sushila Rani Anand i.e Sh. Paramjeet Anand, Sh. Naresh Chander Anand, Sh. Ramesh Anand and Sh. Suresh Anand would be 1/4th owner each of the property bearing No.J-5/129, Rajouri Garden, New Delhi. List for further proceedings with respect to final decree proceedings on 23rd July, 2018. CS(OS) No.1588/2007 will stand dismissed. Probate case being Test. Case No.23/2007 is allowed but since the interest of the sole petitioner is adverse to that of his three other brothers in the bequeathed property at Rajouri Garden, therefore though probate is granted to the petitioner, but for acting upon the probate granted the petitioner so far as property bearing No.J-5/129, Rajouri Garden, New Delhi is concerned, will never act individually but will always act jointly with his three other brothers namely Sh. Paramjeet Anand, Sh. Suresh Chander Anand and Sh. Ramesh Chander Anand.

... Petitioner

will also file the necessary Administration Bond and Surety Bond as also court fees payable on a probate petition and only on such aspects being done would the judgment in the case of Test. Case No.23/2007 become operative and binding. APRIL04 2018 VALMIKI J.

MEHTA, J CS(OS) No.5
& conn. matters Page 60 of 60


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