1. This appeal has been filed by defendants Nos. 1 and 2 against the judgment and decree of the District Judge, Hoshiarpur, dated 5th Jan., 1971, affirming the judgment of the trial Court.
2. Briefly, the facts are that Narain had three daughters, namely, Smt. Nami, Smt. Parmeshwari and Smt. Chinti, and no male issue. He gifted the property in dispute in favour of the three daughters and the mutation was sanctioned in their favour on 16th July, 1919. Tara Singh and Bachitter Singh, near collaterals of Narain, filed a usual declaratory suit challenging the gift. It was dismissed by the trial Court. The collaterals went up in appeal before the District Judge where the compromise was arrived at between the parties, according to which the appeal was allowed and a decree for declaration was granted to the effect that the gift would not affect the reversionary rights of the plaintiffs after the death of Narain donor in respect of half of the land gifted and in respect of the other half, the donees would have no power of alienation and it would revert to the plaintiffs on the death or remarriage of the last survivor of the three daughters.
3. Narain died somewhere in 1927-28 and after his death the two plaintiffs in that suit, namely, Tara Singh and Bachitter Singh took possession of half of his property from the daughters. The other half of the property, after the death of Smt. Parmeshwari and Smt. Chinti, came to Smt. Nami. She gifted the same vide registered gift-deed to her grandson Jagir Singh on 28th Aug., 1965. The plaintiffs filed the present suit for declaration to the effect that the gift, in view of the earlier decree, was invalid and not binding on them.
4. The suit was contested by the defendants who controverted the above allegations and inter alia pleaded that Smt. Nami, after coming into force of the Hindu Succession Act. 1956 (hereinafter referred to as the Act), became full owner of the property and was competent to make the gift of the property in favour of Jagir Singh.
5. The learned trial Court held that the gift deed read with the decreed fell within the purview of sub-section (2) of S. 14 of the Act and, therefore, Smt. Nami did not become full owner of the property. Consequently, it decreed the suit of the plaintiffs. On appeal by defendants Nos. 1 and 2, the District Judge, Hoshiarpur affirmed the judgment of the trial Court and dismissed the same. They have now come up in second appeal to this Court.
6. The only question that arises for determination is as to whether Smt. Nami becomes full owner of the property by virtue of sub-section (1) of S. 14 or remains a limited owner by virtue of sub-section (2) of the said section. The facts of the case are not disputed. In the earlier suit by the reversioners, a restriction was put on the right of the daughters regarding alienation and it was further said that the property would revert to the plaintiff-collaterals. All the daughters were married at that time and they had no pre-existing right in the property. Section 14 of the Act reads as follows:--
'14. Property of a female Hindu to be her absolute property--(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.--In this sub-section 'property' includes both movable and immovable property acquired by a female Hindu by inheritance or device, or at a partition, or in lieu or maintenance or arrears of maintenance, by gift from any person, whether a relative or not before at or after her marriage, or by her own skill or exertion, or by purchaser 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.
(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, or other instrument or the decree, order or, award prescribe a restricted estate in such property.'
7. There has been a lot of controversy regarding the interpretation of sub-section (1) and (2) ibid. Ultimately, the controversy has been laid to rest by a decision of the Supreme Court in Vaddeboyina Tulasamma v. Vaddeboyina Sesha Reddi, AIR 1977 SC 1944. In that case, Tulasamma appellant had claimed maintenance out of the joint family properties in the hands of the respondent who was her deceased husband's brother. The claim was decreed in favour of the appellant and in execution of the decree for maintenance, a compromise was arrived at between the parties allotting the properties in question to the appellant for her maintenance and giving her limited interest in such properties. It was held by the Bench that since the properties were acquired by the appellant under the compromise in lieu of satisfaction of her right of maintenance, it was sub-section (1) and not sub-section (2) of S. 14 of the Act which would be applicable and hence the appellant must be deemed to have become full owner of the properties notwithstanding that the compromise prescribed a limited interest for her in the properties. The following observations of the learned Bench may be read with advantage (at pp. 1947, 1948) :--
'Sub-Section (1) of S. 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property. Sub-section (2) is more in the nature of a proviso or exception to sub-section (1) It excepts certain kinds of acquisition of property by a Hindu female from the operation of sub-section (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of woman in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in sub-section (1). It cannot be interpreted in a manner which would rob sub-section (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub-section (1).
Sub-section (2) must, therefore, be read in the context of sub-section (1) so as to leave as large a scope for operation as possible to sub-section (1) and so read, it must be confined to cases where property is a acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of sub-section (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property.'
8. From the above observations, it is clear that if a limited right is given by any instrument, decree, etc. to a female in lieu of her pre-existing right, she becomes full owner of that property under sub-section (1), but if she derives her right for the first time by virtue of any instrument, decree, etc. under which restrictions are put on alienation, then sub-s. (2) applies and she does not become full owner of the property under sub-section (1). The said view was followed in Santhanam Kachapalaya Gurukkal v. V. Subramanya Gurukkal, AIR 1977 SC 2024 and Bai Vajia v. Thakorbhai Chelabhai, AIR 1979 SC 993.
9. In Bai, Vajia's case (supra), it was held that the widow's right to maintenance, though not an indefeasible right to property, is undoubtedly a pre-existing right. It is true that a widow's claim for maintenance does not ripen into a full-fledged right to property, but nevertheless it is undoubtedly a right which in certain cases can amount to a right to property where it is charged. It cannot be said that where a property is given to a widow in lieu of maintenance, it is given to her for the first time and not in lieu of a pre-existing right. The claim to maintenance, as also the right to claim property in order to maintain herself, is an inherent right conferred by the Hindu Law and, therefore, any property given to her in lieu of maintenance is merely in recognition of the claim or right which the widow possessed from before. It has further been held that it cannot be said that such a right has been conferred on her for the first time by virtue of the document concerned and before the existence of the document the widow had no vestige of a claim or right at all.
10. Under the customary law of the Punjab, the married daughters have got no pre-existing right in the property of their father. Therefore, in the present case, they got the right in the property by virtue of the gift deed. That right was restricted by the decree to their lifetime. Therefore, sub-section (2) of S. 14 of the Act is applicable to the present case and the surviving daughter could not make a gift of the property in favour of her grandson. The heirs of the two plaintiffs in the earlier suit are entitled to succeed to the property after the death of Smt. Nami. In the above view, I am fortified by the observations of the Supreme Court in G. Appaswami Chettiar v. R. Sarangapani Chettiar, AIR 1978 SC 1051. In that case, a contention was raised that after the Hindu Succession Act came into force, the life estate which was conferred on the daughter had ripened into an absolute estate under the Act. The learned Bench rejected the contention holding that the life estate which she was entitled to as under the will of her father and, therefore, S. 14(2) of the Act would be applicable and the life estate would not be enlarged into an absolute estate.
11. For the aforesaid reasons, I do not find any merit in this appeal and dismiss the same with no order as to costs.
12. Appeal dismissed.