(1) This second appeal raises an important question relating to the interpretation of section 14(2) of the Hindu Succession Act, 1956, under the following circumstances:-
One Kamaleshwar Puri died on 23rd March 1938, leaving behind him two widows - Godabai, and Rangubai- and a fairly large estate. Godabai, the senior widow, adopted Defendant No. 2 Jagannathpuri to has deceased husband. The date of adoption does not appear on record, but is of on consequence. Some time after the adoption, the parties found that they cannot pull on together. Hence partition-deed (exhibit P-11) was executed between the two widows and the adopted son, on 13th April 1950. Defendant No. 2 the adopted son, was minor at that time and was represented by a guardian. After attaining majority, Defendant No. 2 has not disowned the partition, but the present litigation has continued on the basis that the Defendant No. 2 accepts that partition as a good and binding partition on all. In that partition, the estate of Kamaleshwarpuri was divided into three different portions. The partition-deed recited that each one of the parties to the partition took the estate mentioned against his/her respective name, as full owner. However, there is a further clause in the partition-deed that all the three agreed that none of them will sell the property. It is further stated that this condition is being put because the property cannot be sold or otherwise disposed of during the lifetime of the two widows; If any alienation is done by any one of them, it will be considered void according to the agreement incorporated in this document.
The three persons as heirs of Kamaleshwarpuri were in possession of their respective shares from 13th April 1950, and were enjoying the produce of the property. After the passing of the Hindu Succession Act, 1956, Godabai, the senior widow, desired to sell the property. She was prevented by Defendant no. 2 Jagannathpuri. Hence, she filed a suit for a declaration that the property allotted to her on partition, under exhibit p-11, now be longs to her fully and the effect of the Hindu Succession Act is to enlarge her estate into full estate. The condition in the document, exhibit P-11, restraining her from alienating the property either by sale or otherwise, is unlawful and cannot bind her. That condition has become inoperative. In such a suit, she impleaded her co-widow Rangubai as Defendant no. 1 and her adopted son Jagannathpuri an defendant No. 2. He was already aged 24 when the suit came to be instituted. The only defence that is raised for the purpose for defeating the suit claim is that the partition is a valid and binding partition; the condition in exhibit P-11, that none of the parties to the partition will sell or otherwise dispose of the property is a valid and binding condition. It is alleged that the provisions of the Hindu Succession Act, 1956, do apply to the present case, but it is the view of Defendant No. 2 that the document of partition falls within the purview of sub-section (2) of section 14 of the Hindu Succession Act and as such, the terms and conditions in exhibit P-11 bind the parties and the estate.
(2)on these pleadings, the learned trial Judge came to the conclusion that the estate given to the Plaintiff Godabai under exhibit P-11 is a restricted estate. This is because there is a condition not to sell or otherwise dispose of the property during her lifetime. The trial Court further held that the plaintiff, a Hindu widow, is already possessed of property when the Hindu Succession Act came into operation and this possession is related to a partition in 1950, under exhibit P-11. However he thought that the instrument of partition is included in the 'other instrument' mentioned in sub-section (2) of section 14 and due to the effect of sub-section (2) of section 14, the limited or restricted estate obtained by the plaintiff filed her appeal in the District Court Amravati. The learned District Judge, how however, took the contrary view. According to him, the estate was enlarged into full title under the provisions of sub-section (1) of section 14 because the property came to the Plaintiff under a partition-deed. The acquisition contemplated by sub-section (2) of section 14 is an acquisition of title, where there was no prior title and the title obtained, for the first time, by an instrument like a gift-deed or will or such other instrument, similar to these. In that view of the matter, the appeal was allowed and the plaintiff's suit came to be decreed. Being aggrieved, Defendant No. 2 has filed this present appeal.
(3)Shri Kalele, who supports the decree of the first Appellate Court, has two-fold approach to the dispute between the parties. Exhibit P-11, according to him, is the basic document which must be properly interpreted in order understand and appreciate the real intention of the parties. In the opening paragraph, exhibit P-11 describes the relationship between the parties and the fact that the property to be divided belonged to deceased Kamaleshwarpuri. It then recites that the parties to the deed are unable to carry on amicably and, therefore, they have decided to separate the properties and to divide the joint Hindu family. Then follows the recitals relating to properties given to each individual. At the end of the description of everybody's property, there is a uniform recital that the person concerned shall get his name entered in the record of right as to the properties allotted to him and thereafter, he will not claim any right at all towards the properties allotted to the other persons. After such recitals at the end of the description of the property given to each one of them, follows a further paragraph, which is the most important portion of this document requiring interpretation. It is better to translate that portion as the original appears in Marathi. It is as follows:-
'In this way, we have divided the property and each one has obtained separate possession of the estate allotted to him or her as full owner according to this partition-deed. However, Nos. 1 and 2 amongst us are widows and No. 3 is the adopted son of the deceased, adopted by the widow. We are so deciding by this partition-deed that none of us will sell any part of the estate mentioned in this partition-deed, because the desire is that no part of the property should be sold or otherwise disposed of during lifetime of Nos. 1 and 2 (viz, the widows) and, if any one sell the property, the transaction will be deemed to be void because of the conditions mentioned in the document.'
The rest of the recitals are the usual, formal recitals in any document and are not relevant for the purpose of this litigation.
(4) Shri Kalele argues that, in 1950 when the partition-deed took place, the Hindu Succession Act was not passed. However, when Kamaleshwarpuri died, the Hindu Women's Right to Property Act, 1937, had already come into force. As a result of the Hindu Women's Right to Property the widows had an interest equal to the interest of their husband and they had also the right to enforce partition. They had already acquired an interest and if they had claimed partition, they would have obtain their shares in the husband's property. However, the title, which they would have got, would have been, what is popularly known, as the Hindu's widow's estate. That would be a limited estate, and they would have no right alienate or otherwise dispose of beyond their lifetime unless supported by legal necessity. The parties to the partition-deed must be deemed to know the law of the land. The ladies were only entitled to life estate. However, by this document, exhibit P-11, they are given full estate and are made full owners of the properties allotted to their shares. This argument is based upon the concluding part of the document, which I have translated above. It says that each one of the parties to the partition-deed has taken, in its independent possession, properties as a full owner thereof. Upon a true construction of this recital, Mr. Kalele argues that the ladies have already acquired full title under the document of partition, exhibit P-11. It is true that a subsequent portion from the same paragraph refers to the restriction regarding alienation. The bar is total in the sense that no party to the partition-deed has to alienate, in any manner during the lifetime of Godabai and Rangubai. They are much older in age and, according to the normal behaviour of nature, the parties may be expecting that Defendant No. 2, the adopted son, will survive both his mothers. In that case, the ban to alienate or the prohibition to alienate is total, so far as Godabai and Rengubai are concerned. They have no right to alienate during their lifetime. Jagannathpuri, if he survives the mothers, may be able to inherit all this property and then would be entitled to sell it or otherwise dispose it of.
(5) Shri Kalele, argues that, in a limited sense, the partition of the joint Hindu family property is a transfer and when a transfer of this type is made, where full title is bestowed upon the parties and there is a condition not to sell, that condition would be void under the provisions of Section 10 of the Transfer of Property Act. Shri Chandurkar for the appellant points out that it has been ruled on several occasions by this Court as well as by the Supreme Court that a partition of the joint Hindu family property does not amount to a transfer. He relies for that proposition upon the recent judgment of the Supreme Court in V. N. Sarin v. Ajit Kumar, : 1SCR349 . He also relies upon the references given in the judgment to earlier decisions of this Court including the one in the case of Soniram Raghushet v. Dwarkabai, : AIR1951Bom94 . I do not think that the way Mr. Chandurkar is reading this authority is correct. So far as the correct meaning of partition of the joint Hindu family is concerned, there has been consistent view of this Court which is based upon a Privy Council judgment of 1916. In this case of GirjaBai v. Sadashiv Dhundiraj, AIR 1916 PC 104, the Privy Council lays down that partition does not give a coparcener title or create a title in him; it only enables him to obtain what is owned by him in a definite and specific form for the purpose of disposition. Independent of the shares of his family coparceners. This view has been consistently followed by this Court and it is also accepted and relied on by the Supreme Court in the Judgment cited by Mr. Chandurkar. The real function of citing this case law is to point out the nature of partition of a joint Hindu family. Partition may be a transfer for the purpose of certain acts. Obtaining separate property by partition does not amount acquisition of property. By partition a person does not get title where he had none. It is in that sense that a partition in the joint Hindu family does not create new title and parties to that partition do not acquire title to the separate pieces if property allotted to them. These cases do not point out that partition is not a transfer at all for any purpose whatsoever. For instance, a partition-deed relating to a joint Hindu family, if the partition is effected by that document, is compulsorily registrable under Section 17(1)(b) of the Registration Act. For purpose of that Act, it is a document which purports to create or extinguish title and as such, it is compulsorily registrable. In several other cases this Court has this Court has laid down the partition does not amount to acquisition of property. For instance in a Full Bench judgment of this Court in Shrikrishna Ninaji, v. Namdeo Bapuji, : AIR1963Bom163 , the question that arose for consideration was whether a partition of the joint Hindu family property amounts to a transfer within the meaning of sub-section (7) of Section 38 of the Bombay Tenancy and Agricultural Lands Act, 1958. The Full Bench pointed out that the transfer that was contemplated by that sub-section was a different type of transfer where title was created for the first time and, in the opinion of the Full Bench the partition of a joint Hindu family, where each one had interest prior to the partition and the interest of each one was quantified into a definite share, does not amount to a transfer within the meaning of sub-section (7) of Section 38 of the Tenancy Act. Even the Supreme Court judgment , on which Chandurkar relied, takes a similar view so far as the provisions of sub-section (6) of section 14 of the Delhi Rent Control Act (59 of 1958) were concerned. That sub-section prohibited a landlord from applying for the purpose of obtaining possession for his own bona fide and personal use of he got title by transfer after a certain date. The question that arose before the Supreme Court was that members of a joint Hindu family effected partition after that date and one of them got title to the whole house. He, undoubtedly, had interest in that house before; but, on a general partition of the entire estate of the family, the house in question fell to the share of one coparcener. When it be came his independent property, he applied for possession on the ground of his bona fide personal use. The Supreme Court was called upon to consider whether such a transfer by partition is hit by the provisions of sub-section (6) of Section 14 of the Delhi Rent Control Act. Their Lordships pointed out that a partition may be transfer for the purpose of Section 53 of the Transfer of Property Act. the partition of the joint Hindu family may be a transfer covered by Section 17(1)(b) of the registration Act, but the limited issue that arose for their consideration was whether, for the purpose of Section 14(6) of the Delhi Rent Control Act, the partition of the joint Hindu family is also one of the contemplated transfers. They then pointed out the object of the Act that persons, who had no title to property before, cannot acquire title after a certain date and misuse that title for the purpose of evicting Court ultimately says that to hold that one is the Hindu family members who already had title in the house and who subsequently becomes the exclusive owner of that house on partition, cannot be said to be a person who is affected by those provisions. To hold so, they pointed out, would be an unreasonable interpretation of sub-section (6) of Section 14 of the Delhi Rent Control Act. I do not think, therefore, that Mr. Chandurkar can take advantage of these authorities and canvass that a partition of a joint Hindu family is not a transfer at all, in any manner, whatsoever. The discussion above will show that in interpreting the effect of the true nature of partition in a joint Hindu family, the High Courts and the Supreme Court have always taken into consideration the object of the particular legislation which is sought to be achieved and though the words may be similar or same, they are given different meanings in the context of the particular legislation.
(6) I am, therefore, inclined to think that, in a limited sense, for the purpose of the transfer of Property Act, the partition of a joint Hindu family could be a transfer. If this is so, then the next question to consider is whether the award of a full title on one part of the document is inconsistent with the limitation put on the alienations and if so what is its effect. Shri Chandurkar argued, in that case, the document must be read as a whole and one cannot spell out the awarding of full title because of the recitals in one part of the document and ignore the restrictions put in the other part of it. I think the true meaning of the concluding part of the document (exhibit P-11) is that the parties intended to give full title each member of the family, irrespective of the fact that the widows had the to obtain a limited or restricted estate known as Hindu widow's estate. If the full title was sought to be conferred, then the condition accompanying such transfer is void. In that view of the matter, the plaintiff and to affirm the decree passed by the first Appellate Court.
(7) However, the other point was also argued at length before me, and I will take brief resume of those arguments. If we assume that the plaintiff got a limited estate, or restricted estate, due to the recitals in exhibit P-11, then the point that falls for consideration relates to the effect of Section 14 of the Hindu Succession Act upon the estates obtained by plaintiff and defendant No. 1.
(8) Section 14(1) of the Hindu Succession Act lays down that any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her has full owner thereof and not as a limited owner. The effect of this sub-section is to enlarge the restricted estate into full estate held by Hindu families. It speaks of that property which is possessed by a female Hindu when the Act came into force. In this case, there is no dispute that in 1956, when this Act came into force, the plaintiff was possessed of the property which was allotted to her under the partition-deed. Even though physical possession may not be necessary to come within the purview of sub-section (1) of Section 14, so far as the facts of this case are concerned, there is the actual physical possession of the plaintiff. She is, therefore, a Hindu female, who was possessed of property on the date of the coming into operation of the Hindu Succession Act. Sub-section (1) of Section 14 further speaks of the property so possessed, may be, acquired before or after the commencement of the Act. The property in suit has been acquired by plaintiff in the partition-deed of 1950 and as such, it is a property acquired before the coming into force of that Act. Now, what is meant by 'acquiring' property in this subsection, has been explained by an explained by an explanation attached to that sub-section. That explanation says that the 'property' contemplated by sub-section (1) of Section 14 includes both moveable and immoveable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription , or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. This explanation is so worded as to include every kind of property that may have that may have been acquired by the Hindu female in any manner whatsoever. The word 'acquisition' used in sub-section (1) of Section 14 appears to have been used in its widest connote to include any kind of acquisition by the Hindu female. In a partition of the Joint Hindu female property where a Hindu Women's Right to Property Act, 1937, it cannot be said that on partition, the Hindu female concerned, was obtaining new title. She already had title; but the nature of the estate, which she could have got on a partition, was a restricted one. Even when there is prior title and on partition certain properties are allotted to a Hindu female for the purpose of sub-section (1) of Section 14 even this allotment of share amounts to an acquisition. The acquisition that is contemplated by sub-section (1) of Section 14 is not, therefore, limited to acquisition of new title, but also includes reallotment of shares in lieu of the prior existence of title. The connotation of the word 'acquired' in sub-section (1) is, therefore, obviously the widest and includes every kind of acquisition. The property in suit would therefore, be included within the provisions of sun-section (1) of section 14.
(9) What is argued on behalf of the appellant is that the plaintiff's acquisition by partition falls within the provisions of sub-section (2) of section 14 and, in that event it is the terms of the document that will govern the rights of parties. If the instrument by which plaintiff gets title creates a restricted title or restricted estate, then plaintiff must take the restricted estate only. Such restricted estate would not be enlarged into full title under the provisions of sub-section (1) of Section 14. It is better to quote sub-section (2) of Section 14 for the purpose of its proper understanding:-
'14. * * * * *
(2) Nothing contained in sub-section (1) shall apply to any properly acquired by way of gift or under decree or order of a civil Court or under an award where the terms of the gift will or other instrument or the decree or award prescribe a restricted estate in such property'. From the wording of the above sub-station, it is argued that a deed of partition may fall under 'other instrument' referred to in that sun-section. It may be noted that sub-section (2) deals with some properties to which sub-section (1) shall not apply. It specifically points out that for the purpose of sub-section (2), the property must be such which is acquired by way of gift or under a will or any other instrument. It them goes on to speak of a decree or order of a civil Court or an award. What is meant by 'any other instrument' is the pertinent question to consider. The concluding portion of that sub-section points out that where the terms of the gift, will or other instrument or the decree or award prescribe a restricted estate, these terms shall prevail. In order that this sub-section should apply, the property must clearly answer the description given in that sub-section.
(10) Shri Kalele argued that the expression 'any other instrument' will have to be read ejusdem generis along with the words 'gift or will'. He points out that when property is conferred upon a donee under a gift or a will, there is no prior title in favour of the donee, nor has the donee any right to claim property. It is a bounty from the donor and a such, the will of the gift creates title for the first time. Any other instrument contemplated by sub-section (2) of section 14 must be an instrument of this type, viz., like a will or gift where title is being created for the first time. No doubt, the same word, 'acquired' is used in both the sub-sections. However, in subsection (2) of section 14, that word has a different meaning from its counterpart, in the earlier sub-section. In subsection (1) of section 14, we have seen that it is used in its broadest sense, whereas in sub-section (2) it is used in its restricted sense, viz., a creation or acquisition of title for the first time where no prior title existed. The document, in order to fall under the description 'any other instrument', must be of a type where title is created for the first time by that document. If this is the correct approach to sub-section (2) of Section 14, then a partition-deed between the members of a joint Hindu family cannot fall within the description of 'any other instrument', because no fresh title is created by a partition-deed among the members of the joint Hindu family. In that sense, the present document exhibit P-11 would not fall within the provisions of sub-section (2) of section 14.
(11) This conclusion of mine gains strength from some of the cases on which Mr. Kalele relies. In the case of Sasadhar Chandra Day v. Smt. Tara Sundari Dasi, : AIR1962Cal438 , the learned Single Judge of the Calcutta High Court was called upon to consider the effect of the partition decrees. It was being contended that a decree of the Court which declares the shares of parties, or a preliminary decree in a partition suit which declares the shares of the parties or a final decree which effects actually a severance of properties and allots certain properties to individual share-holders, falls within sub-section (2) of section 14 of the Hindu Succession Act and as such, the female members in the family would not get full title. That contention was negative by the learned Judge and he observed that the words 'any other instrument, etc.' in sub-section (2) of Section 14 must be construed ejusdem generis, that is any other instrument of the nature whereby the acquisition is made in respect to property in which the person had no interest previously. He goes on to observe that it cannot be said that, by a partition decree, the female acquires the new title where she had none. It is also observed that the preliminary decree in a partition suit does nothing more than declare the existing rights of the parties and a Hindu female by such a declaration in a preliminary decree, cannot be said to have acquired a share in the family property; nor does the direction in the final decree to allot certain properties to her in lieu of her share amounts to an acquisition of new property by her. In another judgment of the Calcutta High Court in the case of Lalchand Bhur v. Smt. Sushila Sundari Dassi, : AIR1962Cal623 , a Division Bench was called upon to consider the effect and true meaning of the provisions of sub-section (1) of Section 14 of the Hindu Succession Act. It was a case where a Hindu widow had succeeded to a huge estate belonging to her husband. The property consisted, among other things, a family deity called 'Sri Sri Broja Kishore Jew Thakur'. A suit was filed by reversioners of the husband of the widow for framing a scheme for the management of the estate on the ground that the widow was mismanaging the property. What was the property of the deceased was also one of the points raised in that litigation. However, the litigation resulted in a compromise decree in which the widow admitted certain properties belonging to her husband in her hand as belonging to the estate of the deceased. She also admitted that so long as she is alive, she would be she bait of the Deosthan. She then agreed that she will not either sell or alienate in any other manner the properties belonging to the family in such manner as to adversely affect the right of reversion of the plaintiffs. On consent of parties a decree of that type came to be passed. After the coming into force of the Hindu Succession Act, Smt. Sushila Sundari filed a suit for a declaration that some of the conditions in the consent decree do not bind her in the changed circumstances. She specifically pleaded that she became full owner of the entire property of her husband after 1956 and the restrictions in the consent decree not to sell the property or to dispose it of in any other manner is not binding on her. The Division Bench of the Calcutta High Court took the view that all the conditions put on the widow were with a view to save the estate for the reversioners. The intention was that the estate of the deceased should be available to the reversioners when the reversion opened. However, the result of the Hindu Succession Act is to extinguish the reversion itself as the estate of the deceased in the hand of the widow would be enlarged into full estate. Since the defendants in that litigation; who were earlier decree-holders, had no right of reversion in their favour at all any more, the question of guarding their interest by not selling the property does not arise. The condition becomes inoperative. Even in this case, the reasoning adopted is that a Hindu widow had already interest in the property and by the operation of sub-section (1) of Section 14, her estate is enlarged because she was possessed of that property at the time when the Hindu Succession Act became applicable.
(12) The two judgments of the of the Calcutta High Court cited above by Mr. Kalele support both the conclusions to which I have come. They do hold that the word 'acquired' is used in its widest sense in sub-section (2) of Section 14 the same word is used in a restricted sense, viz., acquisition of title where no prior title existed. Both the judgments also held that, on partition, a Hindu widow does not acquire property in the sense in which that word is used in sub-section (2) of Section 14. A Division Bench of the Madras High Court in Sampathkumari v. Lakshmi Ammal, : AIR1963Mad50 , has taken a similar view about the true nature and effect of partition in a joint Hindu family. The Madras High Court was also called upon to consider the provisions of sub-sections (1) and (2) of Section 14 of the Hindu Succession Act. Referring to the allotment of shares to Hindu females in a partition of a joint Hindu family property, an argument was addressed to Division Bench that the case of such partition should be governed by sub-section (2) of Section 14. That was a partition between the partition among co-owners, who are otherwise full estate holders, and widows, who are also co-owners, in the joint Hindu family. It is pointed out that in a partition among the members of a joint Hindu family, there is no element of acquisition at all but there is an element of relinquishment of interest in property and, in that sense, the partition in a joint Hindu family would not amount to any kind of transaction governed by sub-section (2) of Section 14 of the Act.
(13) Shri Chandurkar referred me to a judgment of the Punjab High Court in the case of Blanda v. Duni Chand Khazana, . In that case the Punjab High Court was called upon to consider the effect of an oral gift which is permissible in that sense. The question that was posed for consideration was whether an oral gift is covered by the expression 'gift' used in sub-section (2) of Section 14 of the Hindu Succession Act. The oral gift which was the subject-matter of the litigation before the Punjab High Court had put certain restrictions upon the donee. In that context, the Punjab High Court pointed out and with respect rightly, that the gift that is contemplated by sub-section (2) of Section 14 in not necessarily a gift supported by a written document, but is any gift which is legal and valid under the laws of the land. The word 'gift' used by the Legislature in sub-section (2) of Section 14 is unqualified and, therefore, it merely speaks of gift which could be valid according to law. The Punjab High Court, therefore, came to the conclusion that the gift which was the subject-matter of the litigation before them was covered by sub-section (2) of Section 14 and since that gift had put certain restrictions upon the donee, the terms of the gift govern the rights of the parties. I do not think that this case has any relevance to the facts and circumstances of the case before me can render any assistance for the interpretation of the word 'acquired' which is used in the two different sub-section of Section 14 of the Hindu Succession Act.
(14) In view of other discussion above, I have no doubt that the estate of the plaintiff had been enlarged by the operation of sub-section (1) of Section 14 of the Hindu Succession Act. I have also no doubt that the partition-deed (Exh. P-11) under which plaintiff obtained separate and full title to the properties in suit is not an instrument which falls within the expression 'any other instrument' contemplated by sub-section (2) of Section 14 of that Act and consequently, the decree passed by the first Appellate Court must be confirmed. I would, therefore, dismiss this appeal. The appellant will pay the costs of the respondent No. 1 and bear his own. There will be no order as to costs of respondent No. 2.
(15) Appeal dismissed.