1. This second appeal by the defendant in a suit for possession, involves the application of Section 14 of the Hindu Succession Act (Central Act XXX of 1956) to the admitted and established facts. The matter has a certain degree of interest. It appears to me that the result of the application would have to be somewhat different from that arrived at by both the Courts below, and that the appellant would hence be entitled to succeed to a partial extent.
2. The original owner of the suit properties was one Singara Konar who died in 1931. He left two widows behind him, namely, the first plaintiff (whose daughter is the second plaintiff), and one Poornathachi. The widows were unable to live together amicably, and, in consequence of a certain mediation, Poornathachi purported to execute a release deed in favour of the first plaintiff and her daughter (second plaintiff), under the original of Ex. a.i dated 29-4-1931. The effective part of this instrument has been set forth by the first appellate Court, in the original Tamil text, in paragraph 8 of its judgment. Actually, nothing very much turns upon the interpretation of the relevant clause. What Poornathachi said, with reference to the suit property, was that she would possess and enjoy the property for her lifetime, paying government kist, and that after her, the first plaintiff and her daughter (the second plaintiff) were to take the properties.
3. The first Court thought that Pooranathachi actually acquired the property under this document and hence concluded that her interest was not enlarged into an absolute interest by virtue of Section 14 of the Central Act No. XXX of 1956. It is not in dispute that, under Sub-section (2) of Section 14 of the Act, Sub-section (1) is not applicable to 'property acquired by way of gift or under a will or any other instrument or under a decree'. But the first appellate Court rightly pointed out that it could not be stated as a proper inference, from the admitted facts, that Poornathachi acquired any interest in the suit property by virtue of this release deed. On the contrary, the facts were that the two widows were each entitled to an equal interest in the estate of the late Singara Konar, and that the document of release did not clothe the executant of that document (Poornathachi) with any new right. Further, as the learned counsel for the appellant rightly contends, Ex. a.i is a release by Poornathachi in favour of the first plaintiff and her daughter. It is not a document to which the first plaintiff was a party, and it is not a simultaneous release by each of the two widows of any right or interest in favour of the other, being a unilateral document executed by Poornathachi alone, who does not purport to acquire any right or interest under that document it is difficult to say how the document could be said to fall within the scope of Section 14(2) of the Act.
4. Sri Desikan for the respondents urges that a view of the transaction is possible as a family settlement and that, if this view is to prevail, then the case might fall within the exception enunciated by Section 14(2), so as to exclude theapplicability of Section 14(1) of the Act. In this context, he draws my attention to Jaria Devi v. Shyam Sundar Agarwalla, : AIR1959Cal338 but I notice that that was a case in which there was an actual family settlement, not allotting properties to the widow under any admitted share which could be related to the law of inheritance, but bequeathing to her an interest in certain properties, a life interest, by virtue of the document itself. That case is, therefore, entirely different, and the decision is not applicable to the present facts. It is not possible, in any view of the release deed, Ex. A-1, to regard it as any kind of settlement clothing the widow, Poornathachi, with any right to the suit property which she did not already have, and which could be derived from the document alone.
5. Hence, the point rather is how precisely the principle of Section 14(1) of the Act is to be applied to the facts of the case. The learned District Judge, in the first appeal, has come to the conclusion that Section 14(1) could not apply because Poornathachi, of her own volition, reduced her interest as a Hindu widow in the suit property to a life interest, a more restricted title not differing greatly from the interest of a mere maintenance-holder. I am doubtful how far this view of the document is justifiable. Further, this has nothing to do with the application of Section 14(1) which states in unambiguous terms that the property possessed by a female Hindu, whether acquired before or after the commencement of the Act, must be taken to have been held as full owner after the date when the Act comes into force. In this view, it is clear that though the two widows entered into some kind of arrangement for the convenient enjoyment of the estate of the late Singara Konar, Poornathachi was in legal possession of at least her half share or interest in the suit property absolutely at the time of her death.
I cannot hold that she was in such possessionof the other half share, since the deed of release isa unilateral document which might not bind theother widow (first plaintiff). In this view, Poornathachi would become the absolute owner of her undivided half interest in the suit property at thetime, Act XXX of 1956 came into force. With regard to this interest, the suit against the defendant (appellant) who is entitled to the interest ofPoornathachi as a settlee must necessarily fail. Thetrue remedy of the parties, if they wish to dividethe suit property is to do so in appropriate proceedings for partition. The second appeal succeeds to this limited extent and is allowed accordingly. I further direct that, if so advised, theparties may apply in this suit itself for the appointment of a Commissioner, and for the passingof final decree for partition in respect of the halfshare of each. The parties will bear their owncosts throughout. No leave.