B. Venkataswami, J.
1. This second appeal is by the plaintiff in O. S. No. 146/66 on the file of the learned Civil Judge, Mandya. It is directed against a concurring Judgment made in R. A. No. 22 of 1968 by the learned District Judge. Mandya. That was an appeal preferred by the present appellant herself against the judgment and decree of dismissal of her suit
2. The material facts are not in dispute, and briefly stated, they are :--the appellant and the first defendant and another are three widows of three brothers who were members of a joint Hindu family. The appellant is the widow of the youngest brother who died last. The first respondent is the widow of the second brother, who died subsequent to the death of the eldest brother. The widow of the eldest is not arrayed in the suit. By an agreement between the three widows on 23-3-1927 the suit properties were allotted for maintenance to the two senior widows. The said agreement has been produced along with the plaint and the same has not been marked, and is not disputed by any one. After the coming into force of the Hindu Succession Act. 1956, the first respondent herein sold the property in dispute to the second respondent on 20-8-1966. Hence the present suit by the appellant seeking for a declaration that the sale deed in favour of the second respondent would not be binding on her. On behalf of the respondents, the plea taken is that by virtue of the operation of the provisions of Section 14(1) of the Hindu Succession Act, 1956, hereinafter referred to as the Act, the estate held by the widow in lieu of maintenance has been enlarged into a full estate, and therefore, it is competent for the first respondent to sell the property, as if she is the absolute owner thereof.
3. Before the Courts below, the principal contention urged was whether in the facts and circumstances of the case, the estate was enlarged, as contended for on behalf of the respondents by virtue of the provisions of the Act. Both the courts below have come to the conclusion that the estate was, in fact, enlarged by virtue of the provisions of Section 14(1) and, therefore, the sale impugned was valid. In this view, the suit was dismissed. Hence this second appeal.
4. Before adverting to the contention urged by Sri H. K. Vasudeva Reddy, the learned Advocate appearing in support of the appeal, it is necessary to briefly state the effect of the agreement entered into between the widows on 23-3-1927. It is plain from the said instrument that there was a clear recognition of the right of the widows to claim maintenance from the properties in question. It is also relevant to note that on the date the agreement was entered into all the three widows were jointly enjoying the properties belonging to the joint family of their late husbands. In addition to such recognition, the said agreement clearly mentions that while taking the said properties in lieu of maintenance, the two widows, other than the appellant herein, had relinquished their right in respect of the other properties of the family, which were left in the possession of the appellant herself. It is also clear from the said document that a condition has been agreed upon to the effect that the properties shall revert to the appellant for the benefit of her daughter ultimately, on the death of such maintenance holders. That this is the clear import of the said document is not in any manner disputed or questioned before me,
5. I shall now advert to the contention of Sri Reddy, The contention, in substance, is that the right to maintenance vested in a female member of a joint Hindu family is clearly a personal right and it cannot be deemed to be an interest in the property as such. That being so once the right or interest in the properties is granted by an agreement, as the one in question, it would amount to a grant made for the first time in lieu of maintenance. In other words, the contention is that the instrument in question is one clearly falling within the ambit of Section 14(2) of the Act. Once this position is reached, the respondent would not be entitled to the benefit of Section 14(1) of the Act, as Section 14(2) clearly engrafts an exception to Subsection (1) of that section. In support of this submission, he relied on a passage contained in the book entitled 'A Critique of Modern Hindu Law' by Professor J. Duncan M. Derrett The passage in question reads thus : (at P. 223).
'.......Thus all grants for maintenance to women who, at the time when if was made, were entitled to no more than maintenance and but for that disposition would have had no more than maintenance, should be understood to come within Section 14(2) and no time should be wasted enquiring whether maintenance is a subsisting interest in the property. Section 14(2) says nothing about subsisting interests, which are a by-product of judicial construction.'
On behalf of the respondents, both the learned Counsel have referred to a decision of this court in Hanamangouda V. Hanamansouda, (1972-1 Mys LJ 315) = (AIR 1072 Mys 286) and contended that that decision would be decisive of the matter and the appeal, therefore, should be dismissed.
6. On a careful consideration of the matter, I am unable to accede to the submission of Sri Reddv. It is no doubt true, that the passage relied on by Sri Reddy. as extracted earlier, in a large way supports his contention. If this Position is accepted, it seems to me, it follows that Section 14(1) of the Act would come into play only in cases where the estate is acquired by a female by way of succession. I find it difficult to accept this proposition as it would have the effect of cutting down the scope and ambit of that sub-section which is not warranted. With all respect to the learned author, I am unable to accept the proposition as a correct one.
Section 14 of the Act runs thus: '14(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 is unnecessary for our present purpose).
14(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 or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.'
It is clear from Sub-section (1) of Section 14 of the Act that it takes within its ambit that any property acquired by a female Hindu, before or after the commencement of the Act, as a limited owner shall be held by her as a full owner. Sub-section (2) thereof engrafts an exception to the effect that Sub-section (1) shall not operate in a case of acquisition of a property by such a female Hindu, by way of gift or under a will or any other instrument or under a decree or order of a Civil Court or under on award where the terms of the gift, will or other instrument or the decree, order or award prescribes for a restricted estate in such property.
7. It will be seen from the said sub-section that the key words are 'other instrument', on which alone reliance, if at all can be placed in support of the case of the appellant. It seems to me that the said words must be read along with the preceding words 'acquired by way of gift or under a will' following the principles of ejusdem generis. If so, read, it would mean that the 'other instrument' must be of the same nature as a gift or a will which are instruments by which for the first time a right of restricted estate is granted to a Hindu female. Putting it differently, it merely means that an instrument of grant for the first time creating a right in the grantee for the enjoyment of a restricted estate, would alone fall within the purview of the words 'other instrument' occurring in Sub-section (2) of Section 14 of the Act. It follows, therefore, that any restricted estate granted in recognition of the earlier right to maintenance would not fall within the scope of Section 14(2).
8. In the instant case we are confronted with a case wherein, the widows had an earlier right to be maintained out of the income of the property. In those circumstances, what the instrument in question1 purports to have done is to merely recognise such right and allot properties in lieu of such maintenance. Whether the condition restricting the enjoyment of such property by the said widows during their lifetime is incorporated in the document or not the properties are bound to revert to the heirs of the full owner in the absence of enactment of the Act. It is such restricted estate that stands enlarged by virtue of the provisions of Sub-section (1) of Section 14 of the Act. Indeed, it would be clear from the enactment, that the Legislature intended to effect drastic changes in the Hindu customary law, or other enactments preceding the present Act in order to remove the disabilities under which a female member of a joint family had been hitherto suffering. In the light of this [discussion, I am clearly of the view that the conclusions of the Court below that the present case fell within the purview of Section 14(1) of the Act does not call for interference.
9. I am also supported in this view by the decision relied on behalf of the respondents in Hanamangouda's case, (1972-1 Mys LJ 315) = (AIR 1972 Mys 286). It is clearly held therein by a Bench of this court that if the widow of a coparcener was in possession of a joint family property in lieu of her maintenance, even under an instrument, decree or award, prior to the commencement of the Act, she becomes a full owner thereof by virtue of Sub-section (1) of Section 14 of the Act, and Sub-section (2) of that section has no application to such a case,
10. In the light to the above discussion, I am clearly of opinion that this appeal should fail and it is accordingly dismissed. But, in the circumstances of this case. I direct the parties to bear their own costs.