(1) This second appeal raises a short but important question in regard to the interpretation of Section 14 of the Hindu Succession Act, hereinafter called 'the Act'.
(2) The plaintiffs, who are the appellants, instituted the suit for possession of the suit for possession of the property. It was contended that late Subbarao, the father of the 1st plaintiff and the husband of the 2nd plaintiff died undivided with plaintiffs about ten years before. After the death of Subbarao, his paternal grand-mother Narsamma, who was then living, claimed separate maintenance. The matter was referred to some mediators and consequently the parties entered into a family arrangement on 14-8-1947 under which the suit property was given to Narasamma in lieu of her maintenance during her lifetime with certain restrictions. The defendant, who is her daughter, persuaded Narasamma to execute a deed in her favour which Narasamma had no right to execute.
(3) The defendant opposed the action mainly on the ground that Narasamma had absolute rights under Section 14 of the Act, and as Narasamma settled the property in her favour, the plaintiffs have no right to claim the property .
(4) The trial Court decreed the plaintiffs suit finding that the case fell under sub-section (2) of Section 14 of the Act. It was held that Narasamma could not have settled the property in favour of the defendant.
(5) The Subordinate Judge, before whom the matter was carried in appeal, differed with the conclusion of the District Munsif and dismissed the plaintiffs suit mainly on the ground that Exhibit A-1 and its counter-part are in admissible in evidence inasmuch as they were not registered documents. The learned Sub-ordinate Judge thought that as the documents are inadmissible, the case is taken out of the purview of Sub-section (2) and the case falls within the ambit of sub-section (1) of S. 14 of the Act.
(6) The principal question which falls for my consideration in this appeal is whether Section 14(2) of the Act applies to the present case. The facts do not seem to be in dispute. It is the common case that the document which was executed in favour of Narasamma by the plaintiffs was on identical terms with that of Exhibit A-1, which is an instrument executed by Narasamma in favour of the plaintiffs. It is also not in dispute that according to the said documents the suit property was given to Narasamma in lieu of her maintenance to be enjoyed by her during her life time. There were restrictions that Narasamma should not damage the fruit trees or grant bilmakta leases or effect mortgages etc.
(7) Section 14, by sub-section (1), provides that any property possessed by a female Hindu shall be held by her as full owner thereof and not as a limited owner. the Explanation to the first sub-section provides that the expression 'property' includes both movable and immovable property acquired by a female Hindu by one of the several modes mentioned therein including the acquisition of property in lieu of maintenance or arrears of maintenance. In order to attract the provisions of this section, three things are posited : Firstly, there must be property ; secondly, there must be a Hindu woman, and thirdly that property must be possessed by her at the time of the commencement of the Act. It is only when these three things co-exist that a female Hindu shall hold the property from the date of the Act as full owner in whatever be her rights in the property except of course in cases excepted in sub-section (2) of that section. According to the traditional Hindu Law, the concept was that whatever property is acquired by a Hindu female, she acquires it as a limited owner. That concept has undergone now a radical change. After this section came into vogue, unless the case is brought under sub-section (2) of S. 14, the general presumption is that she takes an absolute estate. Sub-section (2) almost lays down a presumption in favour of the absoluteness of the estate in the taker being a female holder and anything contrary to it has to be strictly made out with reference to the clear terms of the deed creating 'restricted estate'. It is thus clear that one has to start with the presumption that the property in the possession of a female Hindu however acquired is held be her as full owner. the old notion that whenever property was given to a woman, she must be presumed to take only a limited estate has now been washed away by the flood of recent decisions and the provisions of S. 14 of the Act.
The explanation defining the property includes with in its connotation a property given to a female Hindu in lieu of maintenance. According to that subsection, property given to a female Hindu in lieu of maintenance, whether before or after the Act, is her absolute property . It is of moment, whether such a property is given to her by an agreement or by an award or a decree of court. Such a grant however is subject to the provisions of sub-section (2). If the agreement, award or a decree giving property in lieu of maintenance to a female Hindu expressly or with necessary implication provides that she will have only life interest in the property, she, by virtue of sub-section (2), obtains only life interest in case there are restrictions on her enjoyment. That being the position, I have to carefully examine sub-section (2) in order to find out whether the instruments in question create a 'restricted estate'.
(8) Sub-section (2) of Section 14 provides that nothing contained in sub-section (1) shall apply to any property acquired, amongst other modes, by an instrument when its terms prescribe a 'restricted estate' in such property. The term 'restricted estate' is not defined in the Act. That such a term does not appear in the texts of Hindu Law cannot be in doubt. It would be, a mistake to equate it with the woman's estate or life estate as is commonly understood under the old Hindu Law. This term has to be understood in reference to Ss. 10 and 11 of the Transfer of Property Act. The condition in a gift or other transfer of property restricting enjoyment is dealt with in S. 10 of the Transfer of property Act, and a restrictive condition repugnant to the interest created is dealt with in section 11 of the Transfer of property Act. If the instrument merely created a life interest without any restriction it is obvious that it cannot be said to be a 'restricted estate'. But it along with the creation of a life estate certain valid restrictions are put, then what is created is a 'restricted estate'. It is to such restricted estates that sub-section (2) refers to. In order to attract the provisions of sub-section (2), three things must necessarily exist. Firstly, there must be an instrument or a document must be the source or the foundation of the right of the Hindu female to the property in question; and thirdly that document must contain terms which create 'restricted estate' taken by the Hindu female. It is plain that if any one of these essentialities is absent, the estate taken by the Hindu female. It is plain that if any one of these essentialities is absent, the estate taken by the woman would fall under sub-section (1) and she will get absolute estate. The above said three requirements may be said to constitute the test to determine whether a given case falls under sub-section (2). If that test is not fulfilled, and if the requirements of sub-section (1) are fulfilled, it must follow that the women instead of a restricted estate would get an absolute one. Sub-section 1) therefore can be said to be subject to sub-section (2). Thus, a property given to a Hindu woman under an arrangement which is not in writing although it restricts the enjoyment, or the arrangements is in writing but no term of it restricts in any manner the enjoyment or the document restricting the enjoyment or the document restricting the enjoyment does not constitute the source or foundation of the woman's right to the property in question, it must follow that sub-section (2) cannot in such a case be attracted. If the female Hindu dehors the instrument has an independent right to the property, in other words, if the instrument does not constitute the source or foundation of her right to the property, she takes the property absolutely despite the instrument in her favour restricting her right in the property. Merely because there is an instrument, unless there are other things mentioned above along with it, it does not prevent the woman taking an absolute estate. What must follow from aforesaid is that when an instrument contains terms prescribing a 'restricted estate' in the property, and it is only under that instrument that a female Hindu gets right to the property , it is then only that sub-section (2) will be applicable.
(9) Now, these restrictions may be as regards duration or enjoyment. It cannot be in doubt that any limitation so imposed must be valid. Otherwise, the restrictions will be ignored. It is to find our whether the restrictions imposed are valid or not that one has necessarily to look into Sections 10 and 11 and other provisions of the Transfer of Property Act. It cannot be seriously disputed that where the property transferred is a particular interest in property and the transferee is restrained from alienating another interest in the property, section 10 or the principles underlying it do not apply. Thus, where no full proprietary right is transferred but merely a right to the usufruct thereof, a restriction that the transferee of the usufruct shall have no power to alienate the property is not bad under S. 10. That this is no clear from Har Dayal v. Lal Nauratan, AIR 1934 All 358. It is therefore that Exhibit A-1 and its counter-part do not contain any terms violative of Section 10 or 11 of the Transfer of Property Act. What is transferred in this case is the mere enjoyment of the usufruct is this case is the mere enjoyment of the usufruct and the restrictions which are imposed are in reference to another interest in the property. The 'restricted estate', therefore , created under the instrument is a valid 'restricted estate', the terms of it not being opposed to Section 10 or 11 of the Transfer of property Act.
(10) If we examine the instant case in the light of what is enumerated above it will be plain that exhibit A. 1, which is the counter part of the document executed in favour of Narasamma and which has not been produced by the defendant but admittedly under which Narasamma was given possession of property in lieu of maintenance during her life-time, contains terms restricting the enjoyment. It will be clear that this deed satisfied the first and third tests as mentioned above. What remains to be found out is whether it also satisfies the second condition.
The question whether the instrument itself creates only a restricted estate can be answered on a conspectus of the document read as a whole with a view to ascertain the real intention of the parties. The question whether when a grant is made in lieu of maintenance under an agreement entered into a document she takes the property as full owner on as qualified owner depends upon the terms of the document. Narasamma is admittedly the paternal great grandmother of the 1st plaintiff, while every Hindu irrespective of his possessing any ancestral property, is personally bound to maintain his aged parents, he is under no such obligation in respect of grandparents unless he has in his hands ancestral property. The present case is one stage removed. That being the position, it cannot be validly argued that Narasamma had any right to be maintained as against the 1st plaintiff or the property in his possession. It is not shown that the suit property was ancestral property in so far as great-mother's maintenance is concerned. Assuming that the 1st plaintiff has some ancestral property in his hands, it is not clear as to how the plaintiffs are under an obligation to maintain the great grand-mother. In any case, it cannot be urged that her maintenance was a charge on the property or on that account she had interest in or right to the property .
Assuming that she had a right to be maintained from some property in the hands of the plaintiffs, even then her right to receive maintenance was one of an indefinite character which, unless a charge upon the property by a suitable document, it has to be enforced like any other liability in respect of which no charge existed. The texts which prohibit the transfer or property so as to deprive, these persons whom the transferor is under a duty to maintain, of their means of sustenance are merely moral precepts and not legal prohibitions. It is to section 39 of the Transfer of Property Act that one has to look to before the transfer which affects the right of maintenance is impeached. It seems however to be plain that neither the texts of Hindu Law nor section 39 creates any right or interest in immovable property on the ground of maintained against a person or from property but it is quite another thing to say that the person entitled to be maintained has a right to property. Right to maintenance and right to property are two distinctly separate things and should not be confused when we consider sub-section (2) of Section 14 unless, therefore, in the discharge of an obligation to maintain, any specific property is given in possession of or transferred, it cannot be validly contended that the woman has the right to the property in lieu of her maintenance. In case such an instrument is executed in her favour giving her the possession of the property in lieu of maintenance, it is only then that it can be said that the instrument is the source or foundation of her right to property which she did not have before the instrument granting her such right. It may be that she had a right to maintenance but it cannot be argued that she had right or interest in any specific property. I am therefore clearly of the opinion that Narasamma acquired the suit property only through the instrument referred to above and that prior to such acquisition she had no interest in the suit property.
I am not persuaded to agree with the contention that the deed only recognised Narasamma's existing rights to property and that the instrument did not create any new right to property with restrictions in favour of Narasamma. I have already stated that she had no right to be maintained as against the plaintiffs or the property, I have also stated that assuming that she had any such right to be maintained out of some property, that does not by itself create any right to the suit property is created for the first time and newly by and under the instrument corresponding to Exhibit A-1 cannot be in doubt. it may be that at the same time it recognising the right of maintenance but what it created was the right to property recognising the right of maintenance. The second test therefore is fully satisfied in this case.
The cases which say that in order to apply sub-section (2) in such cases, the document must create a new right can be understood only to say that the instrument must constitute the source or foundation of a right to property which dehors the instrument the transferee already had, it is clear that sub-section (2) would not apply to such cases. One may have one right, but if in pursuance of that right, any right to property is created, then it is that instrument which creates such right My concluded opinion therefore is that Narasamma acquired the suit property under an instrument, the counter part of which is Exhibit A-1, and cannot be held that apart from the said document, she had a pre-existing or independent right in the suit property under the general law as qualified owner which can bring her case within the scope of sub-section (1) of Section 14 and which enlarges that qualified and which enlarges that qualified ownership into full ownership. A careful examination of the terms of the deed, which are not in dispute, clearly brings out the intention of the parties that it was intended to be operated during her life-time with the restrictions imposed upon the power to mortgage or to give permanent leases etc. It is these terms which make the life estate created in favour of Narasamma a restricted estate with in the meaning of sub-section (2) of Section 14.
(11) I am fortified in my conclusion by the following decisions In Jaira Devi v. Shyam Sundar, : AIR1959Cal338 a widow co-sharer was allotted property not according to her share under a deed of family arrangements. It expressly stipulated for a life interest. As the widows title to the acquired property was really founded on the deed and not on any admitted share of inheritance it was held that the case fell under Section 14(2).
(12) S. Barman J., in Mali Bewa v. Dadhi Das, : AIR1960Ori81 held that 'by the compromise decree which was passed before the commencement of the Hindu Succession Act only restricted right was given to the widows and not absolute right.' The terms of the compromise were that the widows would remain in possession of their share till their life-time and meet their maintenance out of the usufruct, and for any reason, the usufruct be not sufficient then they reason the usufruct be not sufficient be not sufficient then they would be entitled to sell such portion of their shares as may be necessary . In view of these terms, Section 14(2) was applied.
(13) The case of Sasadhar Chandra v. Sm. Tara Sundari Dasi, : AIR1962Cal438 on which great reliance was placed by the learned advocate for the respondent, does not, in my opinion render any assistance to him what was held was that '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'. That was a case in which a female Hindu had, prior to partition of joint family property, substantial interest in the properties and she was given exclusive title in some of the properties allotted to her on partition. It was in those circumstances that it was found that she acquired absolute title under sub-section (1) of Section 14. That this decision emphasises the necessity of finding out should the second test also is satisfactorily fulfilled or not is clear.
(14) Another case, which was relied upon was Sharbati Devi, v. Hiralal, AIR 1964 Punj anything contrary to what is stated above. What it says is that 'sub-section (2) Will apply only it in any of the ways mentioned in that subsection i. e. by a gift or under a will, or under a decree. It will therefore depend on the facts of each case as to whether any property had already been acquired under sub-section (1). If the answer be in the affirmative then sub-section (2) cannot apply . If it is in the negative, sub-section (2) will become applicable provided the property is acquired in any of the several ways mentioned therein'. This again is in pursuance of the second test which is referred to above.
(15) Finally, reference was made to a decision of this court, not yet reported given in L. P. A. no. 134 of 1963 on 14-7-1964 (Andh,. Pra.). That decision also endorses the view that subsection (2) comes into effect only in cases where a new right is created with certain restrictions and conditions and it can have no application to cases of recognition of existing rights. In regard to the right of maintenance and right to property, apart from what is stated above by me, the said case can be distinguished on the ground that that was a case in which the adoptive mother had claimed maintenance against the adopted son.. The matter was settled and a deed of family arrangement was entered into. It was not a case where, as here, there was no obligation to maintain. It was on the other hand a case where such an obligation existed. I do not therefore consider that that case decides anything which is contrary to what has been found in this case.
(16) It was finally argued by the learned counsel for the respondent that Exhibit A-1 and its counter-part were document which required registration. It is contended that the deed is a document which supports or operates to create, declare etc., any right title or interest of the value of one hundred rupees and upwards to or in immovable property. His view therefore is that the document creates or confers title to property in which Narasamma had previously no existing title. It is therefore submitted that the document, not having been registered, is inadmissible in evidence under S. 49 of the Indian Registration Act. That document creating a right in immovable property worth more than Rs. 100/- is not admissible in evidence unless registered is a matter about which there is no room for dispute. The question however for decision is whether confers title and not merely one which is properly speaking a family arrangements in the sense that it is a settlement effected in the course of a family dispute and under which the rights, whether property or not properly founded by the disputants were recognised and declared. I do not think that the document in question required registration. That it was a family settlement is not disputed. In my judgment it is not a document which operates to confer title or effects any transfer of immovable property. It did no more than permit Narasamma to remain in possession of the property in lieu of maintenance during her lifetime and it cannot therefore be a document whose registration was compulsory. I have no shadow of doubt that it is a family arrangement meant merely for the enjoyment of the usufruct of certain property by Narasamma in certain manner without limiting or extinguishing anybody's right in any property . and therefore it does not require registration. I am fortified in my view by the following decisions : Mt Anjira Bai v. Annapurna Bai, AIR 1928 Nag 254 at P. 255 and Ram Narain Singh v. Raj Bahadur Singh, AIR 1941 Oudh 150 at P. 155.
(17) What follows from the aforesaid is that Narasamma had only a 'restricted estate' during her life time within the meaning of sub-section (2) of Section 14, and it is obvious that she could not have settled the property in favour of the defendant, which operates after her life-time. The plaintiffs being admittedly entitled to the property in view of above, must get the decree for possession.
(18) For the reasons mentioned above, the second appeal must be allowed, the judgment of the lower appellate Court set aside, and that of the trial Court restored. I however leave the parties to bear their costs throughout No. leave.
(19) Appeal allowed.