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Janki Vs. Govinda Shenoi - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberS.A. Nos. 919 and 924 of 1977
Judge
Reported inAIR1980Ker218
ActsHindi Succession Act, 1956 - Sections 14(1) and 14(2)
AppellantJanki
RespondentGovinda Shenoi
Appellant Advocate T.M. Mehalinga Iyer and; S.K. Brahmanandan, Advs.
Respondent Advocate M.K. Narayana Menon and; T.V. Ananthan, Advs.
DispositionAppeals dismissed
Cases ReferredG. Appaswami Chettiar v. R. Sarangapani Chettiar
Excerpt:
.....of hindu succession act, 1956 - whether appellant entitled to invoke section 14 (1) in respect of item-1 in will - item-1 allotted in lieu of maintenance - no disposition of item-1 or creation of estate or interest therein in favour of widow in lieu of maintenance - disposition is only confers right to reside in house and casts obligation cast executor to pay money and paddy to her - held, section 14 (1) not applicable. - - however, the allotment of the schedule properties as aforesaid in favour of the widow was only a restricted allotment in that she was to enjoy only a limited interest therein with no power of alienation at all. therein that court said as follows :the concurrent finding of the 1st appellate court as well as the high court that the will executed by jaimal on..........and pay over the same to the widows. the right, if at all, is only a monetary claim and not any right in item no. i.it has been contended before me that it was taking into account the husband's obligations to maintain the wives that the provision has been made in ext. a-1 will as aforesaid. may be so. but the question with reference to section 14(1) of the act mentioned above, is: can it be said that any restricted right in respect of the immovable property in item no. i described in ext. a-1 will, has been allotted or bequeathed to the widows so that the widows, relying on sub-section (1) of section 14, can claim that they have, after the date of coming into force of the act, absolute right therein. this i am afraid the plaintiff cannot contend in so far as the only right that has.....
Judgment:

George Vadakkel, J.

1. These appeals are at the instance of the plaintiff in the suit O. S. 358 of 1971 on the file of the Munsiff's Court, Parur which gave rise to two appeals before the lower appellate court, A. S. 31 of 1974 by the defendant in the suit and A. S. 33 of 1974 by the plaintiff in the suit. By the decision of the Additional District Judge, Parur, disposing of A. S. Nos. 31 and 33 of 1974 before him, the suit filed by the appellant-plaintiff was dismissed.

2. The plaintiff is the surviving widow of late Shri Ramachandra Shenoi who died on 7-5-1123. Admittedly there was another widow, Satyabhama by name, who is no more. It is not clear as to when Satyabhama died. Shri. Ramachandra Shenoi executed Ext. A-1 will on 28-4-1123 (14-12-1947). The question that arises for consideration is as to whether the plaintiff-appellant is entitled to invoke Section 14(1) of the Hindu Succession Act, 1956 in respect of Item I in Ext. A-1 will. The learned Munsiff held that she is entitled to invoke the same, but only in respect of one-half thereof, in so far as late Shri Ramachandra Shenoi had two wives. The learned Additional District Judge took the view that Section 14(2) of that Act governs the case and that, therefore, the plaintiff is not entitled to invoke Section 14(1) of the Act in respect of the said property. Consequently, as already stated, the learned Additional District Judge dismissed the suit.

3. Ext. A-1 will is a registered will. There is no dispute before me as regards its genuineness. By that document Shri Ramachandra Shenoi bequeathed as many as four items of immovable properties. He appointed Shri Govinda Shenoi, the defendant's father and in his absence, the defendant, as the executor under the will. I am concerned in this case only with the disposition as regards Item No. I, on which, it appears, stands the family house wherein Shri Ramachandra Shenoi and his widows were staying and where the plaintiff is even now residing. So far as Item No. I in Ext. A-1 will is concerned the testator provided that the same shall be in the possession and enjoyment of the executor. It was further provided therein that the widows can reside in the family house on Item I, and if on account of any difference of opinion or disagreement between the co-widows they could not reside amicably in the house, the house is to be divided into two and each one of the two co-widows was to reside in that portion which has been specified in Ext A-1 will. Under Ext. A-1 will the executor has to pay to each of the two co-widows half of the net income of the property, Item I, after meeting the necessary expenses, but not exceeding a sum of Rs. 150/-.

The testator has also provided that the legatees to whom some other properties which are paddy lands have been bequeathed should give the specified quantity of paddy to the widows. The executor is to collect these paddy-payments and pay them over to the widows. There is also a provision therein that on the death of any one of the widows, the other widow would not be entitled to that share of the paddy and money which was payable to the deceased widow. It has also been directed that Item No. I with the house thereon is to be divided by metes and bounds only after the death of both the widows. The provision in Ext. A-1 will as regards Item No. I after the death of both the co-widows is that that property is to be divided by metes and bounds into eight shares of which two shares are to go to the executor and each of the other six shares is to go to each of the six nephews of the testator. (The six nephews mentioned above are the children of the testator's brother). The executor has been directed under Ext. A-1 will to obtain the necessary release deeds as regards delivery of possession of the concerned share to the concerned nephew. These, in short, constitute the scheme of disposition so far as Item No. I is concerned.

4. The first question that arises for consideration is as to whether it could be said that Item No. 1 or any estate or interest therein has been allotted to the widows in lieu of their maintenance. The contention before me on behalf of the appellant-plaintiff is that Item No. 1 in Ext. A-1 will has been allotted to the widows in lieu of their maintenance. It is difficult to understand the disposition as aforesaid as an allotment of Item No. I or as creating any estate or interest therein in favour of the co-widows or any one of them. No doubt, they are entitled to have certain payments, both money and paddy, and it is the executor's function thereunder to collect the money and paddy and pay over the same to the widows. The right, if at all, is only a monetary claim and not any right in Item No. I.

It has been contended before me that it was taking into account the husband's obligations to maintain the wives that the provision has been made in Ext. A-1 will as aforesaid. May be so. But the question with reference to Section 14(1) of the Act mentioned above, is: Can it be said that any restricted right in respect of the immovable property in Item No. I described in Ext. A-1 will, has been allotted or bequeathed to the widows so that the widows, relying on Sub-section (1) of Section 14, can claim that they have, after the date of coming into force of the Act, absolute right therein. This I am afraid the plaintiff cannot contend in so far as the only right that has been conferred by Ext. A-1 will on the widows is a right of residence in the house. Ext. A-1 will, as already pointed out, casts certain obligations on the executor to collect money and paddy, but the same would not tantamount to allotment of Item No. I to the widows or creation of any estate or interest therein in their favour, be it in lieu of their maintenance or not.

5. The argument as aforesaid was advanced in answer to the defence that Sub-section (2) of Section 14 would govern this case and not Sub-section (1) thereof. It was this contention that was accepted by the lower appellate court. The contention on behalf of the appellant-plaintiff is that as per the explanation to Section 14(1) of the Act :

'...'Property' includes both movable and 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 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'.

And the argument is that property acquired in lieu of maintenance is outside Sub-section (2) of Section 14 and that, therefore, Section 14(2) would not be attracted to the instant case. In the view that I have taken in the preceding paragraph that, it cannot be said that there was any allotment of Item No. I or creation of any estate or interest therein in favour of the widows, it goes without saying that there has been no allotment of any property under Ext. A-1 will in favour of the widows, be it in lieu of maintenance or otherwise.

6. Turning to Sub-section (2) of Section 14 it would be seen:

'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.'

The lower appellate court has taken the view that in so far as the only right which the appellant-plaintiff gets under Ext. A-1 will is a right of residence in the family house on the property and a right to receive paddy and money, and in so far as those rights arise under a will Section 14(2) of the Act would be attracted to the instant case. The learned counsel for the appellant-plaintiff submits that Section 14(2) would not govern this case in so far as, according to the learned counsel for the appellant-plaintiff, the disposition under Ext. A-1 will has been made taking into account the husband's pre-existing obligation to maintain his wives.

7. There was some controversy as to whether the moral or natural obligations, a husband has to maintain his wife would prevent him from disposing of his properties without making any provision in that behalf. This question is answered by Mulla in his Hindu Law as follows:--

'The maintenance of a wife by her husband is a matter of personal obligation arising from the very existence of the relationship, and quite independent of the possession by the husband of any property, ancestral or self-acquired. The maintenance being a matter of personal obligation, she has no claim for maintenance against her husband's property in the hands of a transferee from him.'

(Fourteenth Edition p. 597).

However, this dispute need not detain me any longer; in ,so far as the husband has an obligation to maintain his wife, whatever be its nature, personal or not (see Section 18 of the Hindu Adoptions and Maintenance Act, 1956 whereunder it is a statutory obligation on the part of the husband to maintain his wife), if he, in recognition and in lieu of it creates a restricted estate in her favour, that estate would, under Section 14(1) of the Act, be a property possessed by her and shall become her absolute property which she can hold as full owner thereof thereunder. This would be so despite such a restricted estate is created by way of a gift or under a will and in spite of the provision in Sub-section (2) of Section 14 of the Act which apparently provides that a restricted estate so created by way of a gift or will or any other instrument or under a decree or order of a civil court or under an award will not be governed by subsection (1) of Section 14 of the Act. The Supreme Court has so laid down in V. Tulasamma v. Sesha Reddi (AIR 1977 SC 1944).

8. The learned counsel for the appellant-plaintiff relying on Vadba-boyina Tulasamma v. Vadbaboyina Sesha Reddi (AIR 1977 SC 1944) submits that the distinction as aforesaid has not been borne in mind by the lower appellate court. The Supreme Court in the aforesaid case was concerned with the claim of a widow founded on a compromise filed in court during proceedings in execution of a decree for maintenance. The widow had filed an application which was subsequently registered as a suit. That suit was decreed ex parte against the defendant therein. It may be noticed that the husband died in a state of jointness with his step brother and the claim for maintenance was against the latter. The ex parte decree was put in execution by the widow and at that stage the parties settled the matter out of Court and that was certified by the Executing Court as required under Order XXI, Rule 2 of the Code of Civil Procedure.

Under that settlement the widow was allotted the properties that were scheduled to the plaint which gave rise to the appeal before the Supreme Court. However, the allotment of the schedule properties as aforesaid in favour of the widow was only a restricted allotment in that she was to enjoy only a limited interest therein with no power of alienation at all. According to the terms of the settlement the properties were to revert to the plaintiff in the suit after the death of the widow. The widow was in enjoyment of the properties as aforesaid when the Hindu Succession Act, 1956, came into force. The widow appears to have sold some of the properties. Thereupon the reversioner, relying on the terms of the settlement, filed a suit for a declaration that the alienations made by the widow were not binding on him and such alienations would be valid only till the lifetime of the widow. On these facts and in these circumstances the Supreme Court, considering the ambit and amplitude of the two subsections of Section 14 of the Act, point-out that :

'the legislative intendment was that Sub-section (2) should be applicable only to cases where acquisition of property is made by a Hindu female for the first time without any pre-existing right -- a kind of acquisition akin to one under gift or will. 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 preexisting 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.'

The same would be the position where a husband creates a restricted estate in favour of his wife under a will or any other document mentioned in Sub-section (2) of Section 14, if such restricted estate is created by him in lieu of his obligation to maintain her.

9. However, I do not think that the decision relied on by the learned counsel for the appellant-plaintiff is of any assistance to him in so far as late Shri Ramachandra Shenoi has not created any estate under Ext. A-1 will in favour of his wives. In that view it is not necessary to examine at length the decision of the Supreme Court in Mst. Karmi v. Amru (AIR 1971 SC 745 at P- 746), relied on behalf of the respondent. Therein that court said as follows :--

'The concurrent finding of the 1st Appellate Court as well as the High Court that the will executed by Jaimal on November 13, 1937, is genuine is a finding of fact and the same cannot be assailed in this Court. Nihali having succeeded to the properties of Jaimal on the strength of that will cannot claim any rights in those properties over and above that given to her under that will. The life estate given to her under the will cannot become an absolute estate under the prov-sions of the Hindu Succession Act. Therefore the appellant cannot claim any title to the suit properties on the basis of the will executed by Nihali in her favour.'

To the same effect is the decision of this Court in Kunji Thomman v. Meenakshi (AIR 1970 Ker 284 at p. 288) wherein the Division Bench held as follows :

'The object of Sub-section (2) of Section 14 is only to remove the disability on Hindu woman imposed by law and not to interfere with contracts, grants etc., by which a restricted right is created in her favour. Sub-section (2) is based upon the principle of sanctity of contracts and grants. What the second defendant consented to take under Ext. P-1 is not a woman's estate but an estate for life with a vested remainder in favour of others. There is nothing on evidence to show that the allotment of properties to the second defendant was in recognition of her legal right for maintenance attached to the properties of Vattu Govindan.'

(emphasis supplied)

10. It is also necessary to refer to another decision of the Supreme Court namely that in G. Appaswami Chettiar v. R. Sarangapani Chettiar (AIR 1978 SC 1051) relied upon on behalf of the respondent. The disposition considered here was one under a will executed by the father. It was stated therein that the daughter could not found a claim under Section 14(1) of the Act in so far as the life estate she got was under a will executed by her father. Therefore, it was held that Section 14(2) of the Act would be applicable and the life estate would not be enlarged into an absolute estate.

11. I have found that there has been no disposition of Item No. I or creation of any estate or interest therein in favour of the widow in lieu of maintenance and the only disposition under Ext. A-1 will so far as the appellant-plaintiff is concerned is only the right given to her thereunder to reside in the house and the obligation cast upon the executor to pay money and paddy to her. For that reason alone, Section 14(1) of the Act would not be attracted so far as the claim advanced in this case is concerned, which is that the appellant-plaintiff has an absolute title to Item No. I in Ext. A-1 will under Section 14(1) of the Act. In the view as aforesaid the learned Additional District Judge is correct in dismissing the suit, though the reason therefor stated by him, namely, that Section 14(2) of the Act governs the case is erroneous.

The Second Appeals fail and are dismissed. In the circumstances of the case there will be no order as regards costs.


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