1. The facts leading to these appeals are as follows : During the course of the judgment we will refer to the parties as plaintiffs and defendants as that would be convenient. The plaintiffs, who are three in number, filed O. S. 117 of 1972 on the file of the Sub Court, Madurai, for partition and separate possession of their 3/8 share in items Nos. 1 and 2 and 3/4 share in items 3 and 4 of the plaint schedule properties. The suit properties along with some other properties belonged to one Subbiah Iyer. Even at this stage, let us set out the geneological tree
(for table see next page)
At the time of the death of Subbiah Iyer, there were only three daughters. They are, Mangalam - mother of plaintiffs 1 to 3 and the second defendant Venkataraman, Subbalakshmi the first defendant and Seethalakshmi alias Rukmani the 8th defendant. Subbiah Iyer executed a registered Will on 31st July 1955, where under he had made provisions for his daughters and made several bequests in favour of several persons for conducting certain charities. He had also left out certain properties without including them in the will and one among them is item No. 3. Subbiah Iyer died in 1959. He was in possession of huge movables in the form of cash jewels, pronotes, etc. He had advanced moneys to several persons as loan and obtained money decrees against several debtors. One of the decrees so obtained by him was a decree in O.S. 62 of 1956 on the file of the Sub Court, Madurai, against one K. V. Raja alias K. V. Venkatakrishnan and another. Execution proceedings were launched against the debtors in the said suit in E. P. 45 of 1958 and brought for sale item No. 1. Pending the execution proceedings, Subbiah Iyer died. His legal representatives were added as parties and they continued the execution proceedings, brought item No. 1 for Court auction sale, purchased the same and sale certificate was issued in their favour. Mangalam and two other persons took delivery and they were in possession and enjoyment of the same by leasing out the bungalow to tenants and usufructs of the fruit bearing trees to several persons on Kuthagai basis. Seethalakshmi relinquished her right, title and interest in favour of her sisters in consideration to appropriate to herself in to certain other debts due to the estate of Subbiah Iyer. Thus, Mangalam and the first defendant became entitled to item 1 of the suit property absolutely.
M. Subbiah Iyer (died)__________________________________________________________________________________| | | | | |Mangalam Alamelu Subbulakshmi Sornambal Seethalakshmi Gandhimathi (died) (died) (D-1) (died) alias (died)Rukmani(D.8)| ______________________________________________________________________| | | || S.Muthuraman Rajam alias Kunju alias Thayi alias| (D-4) Kamatchi(D-4) Velammal Lakshmi(D-7)| (D-6)|___________________________________________________________________| | | |Rajalakshmi Venkataraman Sundaram Patammal (1st Plff.) (D-2) (2nd Plff.) (3rd Plff.)
2. In the will executed by Subbiah Iyer, he bequeathed a house property bearing door No. 22, Ponnagaram, Madurai Town, in favour of Mangalam. But even during his lifetime he sold away the same to a third party by expressing his desire to compensate this. In order to fulfil that desire, he directed the two daughters to give a share to Mangalam in the house property given to them in the will. According to the desire of Subbiah Iyer, all these three persons entered into an oral agreement concerning this item. By means of another agreement, Seethalakshmi relinquished her share in regard to item No. 2 as she had done in regard to item 1 of the suit properties. Thus Subbalakshmi and Mangalam became the absolute owners.
3. After the death of Subbiah Iyer, the three daughters divided 7-1/2 acres of land in Oorseri village and item No. 3 is the share in the property allotted in favour of Mangalam. She has been in enjoyment of the said property. Patta also was transferred in the name of Mangalam. Subbiah Iyer bequeathed 4 acres and 2 cents of nanja lands in Oorseri village to be enjoyed by her absolutely, and the same is mentioned as item No. 2 in the E schedule of the will. Mangalam had an absolute right in the said property, viz. item No. 4 of the suit property. Mangalam promised the plaintiff to give share in all her properties even during her lifetime. She had a desire to help the plaintiffs, who have number of children. Mangalam died on 10-12-1969 leaving behind plaintiffs 1 to 3 and the 2nd defendant as her heirs. After her death, plaintiffs 1 to 3 and the second defendant became entitled to the suit properties in equal shares. Thus, the plaintiffs are entitled to 3/8 share in items 1 and 2 and 3/4 share in items 3 and 4. Hence the suit.
4. In the written statement of the first and second defendants, it was urged that the plaintiffs are not in joint possession either physically or constructively. The plaint averments actually amount to ouster and denial of the rights of defendants 1 and 2. Proper Court-fee has not been paid. The suit is bad for partial partition. Again, the plaintiffs are liable to be non-suited for non joinder of parties, viz., Rukmani alias Seethalakshmi Ammal. The oral relinquishment as alleged is not true. The suit items 1 and 5 were, purchased in Court auction by the first defendant, Mangalam and Rukmani alias Seethalakshmi after the death of their father. The plaintiffs are aware that Mangalam died leaving a will dated 25-9-1968 duly executed by her and attested by the second defendant and others bequeathing her share in item I solely in favour of Muthuraman, son of first defendant, and directing item 5 to be sold to 3rd defendant and hence the plaintiffs are not entitled to claim any share in it. In regard to item 3, Subbiah Iyer directed the defendants 1 and 2 and Mangalam to sell the same to meet the estate duty and Income tax dues. But the property was not worth that much. Mangalam I met the claim from the earnings of the second defendant by borrowing. The see, I defendant paid the taxes and avoided sale of I the property. He had paid more than Rs. 3000 towards tax dues. Item 3 was given to the 2nd defendant by his mother to be enjoyed by him absolutely. The oral arrangement and the agreement pleaded in the plaint are false. The plaintiffs are not entitled to any share in item all No 2. The allegations in para 15 that item 4 was orally promised to be given to the plaintiffs by Mangalam is false. Under the will by Subbiah Iyer, this item belonged to Mangalam exclusively and after her to the second defendant. The plaintiffs are not entitled to any claim over the same. The suit is therefore liable to be dismissed.
5. The third defendant more or less adopted the same stand and she also pleaded that the plaintiffs are liable to be non-suited. The written statement of defendants 1 and 2 came to be adopted by defendants 4 to 6 who were impleaded after the death of the first defendant, Subbalakshmi Ammal. The third defendant filed an additional written statement contending that the plaintiffs are not entitled to claim possession of item 5 because they are bound by the transaction under which the 3rd defendant was put in possession of item 5.
6. The plaintiffs filed a reply statement reiterating their allegations in the plaint.
7. On these pleadings, as many as 21 issues were framed for trial. On issue No. 1 the learned Subordinate Judge came to the conclusion that there is no will dated 25-9-1968 as alleged by defendants 1 and 2 in their written statement. On Issue No. 2, he came to the conclusion that the plaintiffs will have a share in the suit item No. 1. On issue No. 3 he concluded that Mangalam, is not entitled to a half share in item 2 of the suit property and as such the plaintiffs are not entitled to claim 3/8 share in item 2 of the suit property. On issue No. 4 it was held that the arrangement pleaded in para 12 of the plaint regarding item No. 2 is neither true nor valid and therefore the plaintiff would not be entitled to any share in item No. 2 of the suit property. In the common finding on issues Nos. 5, 6 and 7, it was held that the suit property was not orally gifted to second defendant and even if such a gift is true, it is neither valid nor binding on the plaintiffs, that the evidence does not disclose that Subbiah Iyer directed Mangalam and the second defendant to pay the estate duty and therefore the further question, if they paid, whether they are entitled to adjust the said payments to item 3 of the suit property does not arise for consideration and that the plaintiffs are entitled to 3/4 share in item 3 of the suit property. On Issue 10, the learned Judge held that in view of the joint memo filed by the parties, the plaintiffs are entitled to their respective shares, in items 1 and 5 and that the question as to whether item 5 could be allotted to the share of defendants 1, 2 and 4 to 7 and consequently to the 3rd defendant is left open to be decided in the final decree proceedings. On Issue No. 11, it was held that Seethalakshmi alias Rukmani Ammal relinquished her rights in items 1 and 5 in favour of her two sisters as alleged in the plaint and that she had not relinquished her rights in item 2 in favour of any of her sisters as alleged. On Issues Nos. 8 and 9 he held that even though as per the provisions of the will of Subbiah Iyer, item No. 4 should go to the second defendant absolutely, after the death of Mangalam, the plaintiffs are entitled to a share in the suit property by virtue of S. 14(1) of the Hindu Succession Act, which has enlarged the limited interest of Mangalam into an absolute one and as the daughters of Mangalam the plaintiffs are entitled to a share in item 4 of the suit property. On Issue No. 12, it was held that in view of the joint memo filed by the parties the sale in favour of the 3rd defendant in respect of item 5 is not binding on the plaintiffs, Issue No. 13, on the question whether the 3rd defendant is a bona fide purchaser for valuable consideration, is left open for decision in the final decree proceedings. On issue No. 14 no finding is rendered as the same was not pressed in the joint memo filed by the parties. On issue No. 15 the Court-fee paid by the plaintiffs was held to be correct. On Issue No. 16 it was held that the suit as framed is maintainable. On Issue No. 17 the plea of non-joinder of Seethalakshmi alias Rukmani Ammal was rejected in view of the fact that she was later impleaded as a party defendant. On Issue No. 18 it was held that the suit was not bad because there was no question of partial partition. On Issue No. 19, it was held that as per the joint memo of the parties, the issue was left open to be decided during the final decree proceedings. On issue No. 20 it was held that the first defendant was liable for accounts to the plaintiffs for the income from item 1 of the suit property for the period from the date of death of Mangalam till delivery of possession. Having regard to the above findings, under issue No. 21, it was held as follows : In the result, there will be a preliminary decree for partition and separate possession of the plaintiffs 3/8 share in item 1 and 3/4 share in items 3 and 4 of the suit properties. The question as to whether Item No. 5 is to be allotted to the share of defendants 1, 2, and 4 to 7 and consequently to the third defendant is left open to be decided in the final decree proceedings. The second defendant is also directed to render a true and proper account of the income derived from items Nos. 3 and 4 of the suit properties and the fourth defendant is directed to render a true and proper account with regard to the income, from item 1 of the suit properties from the date of death of Mangalam. The rest of the claim of the plaintiffs is dismissed and the parties are directed to bear their own expenses.
8. Aggrieved by the preliminary decree, the second defendant in so far as he has been denied the right with regard to item 4 of the plaint schedule property has preferred A.S No. 389 of 1978. The plaintiffs in so far as the oral arrangement pleaded by them in para 12 has been rejected by the trial Court have preferred A.S. 669 of 1978. This is how both the appeals are before us.
9. Mr. G. Subramaniam, learned counsel for the second defendant appellant in A. S. 389 of 1978 strenuously urges that the interpretation placed on the terms of the will Ex.A. 3, executed by Subbiah Iyer is wrong and that what is conferred on the eldest daughter, Mangalam, concerning A schedule was only a life estate, which is very clear in so far as the residuary right after the lifetime of Mangalam conferred on the named heir, viz. Venkataraman the appellant herein (A.S 389 of 1978) Therefore, the Court below having held the same in favour of this appellant wrongly applied the principle of law as though by virtue of Section 14(1) of the Hindu Succession Act, 1956, the estate would get enlarged. It is not so. There was no pre-existing right as far as Mangalam, the eldest daughter was concerned. For the first time the right over the estate came to be conferred by this will Ex.A. 3. To such a case., Sec. 14(2) of the Hindu Succession Act alone would apply. The law on this aspect was laid down by this Court in Thayyanayaki Ammal v. Venugopala Pillai (1975) 88 ML.W. 688 Though that ruling was reversed by a Division Bench of this Court on the interpretation of the document in question, the legal position remains unshaken. The same position of law is found gatherable from Jaswant Kaur v. Harpal Singh, (FB), in paragraph 8. It is also made clear in the leading case reported in V Thulasamma v Sesha Reddi AIR 1977 SC 1944. As to what exactly is the position of a person like the daughter can be gathered from the ruling reported in Karmi v. Amru : AIR1971SC745 and G. Appasami v. R. Sarangapani, : 3SCR520 . Having regard to all these rulings which clearly govern the facts of the case on hand, the finding of the Court below that S. 14(1) of the Hindu Succession Act would apply is wrong. This is not a case where the daughter was a destitute and the father's estate was being called upon to meet the obligation of maintaining the destitute daughter. Such a plea was neither put forth nor pleaded. Therefore, no foundation having been laid for such a case, it is not open to the other side to put forth such a plea as to the right of the three daughters and what exactly the testator intended to give can be gathered by a reading of the bequest in favour of Subbalakshmi Ammal concerning F schedule and in favour of Seethalakshmi Ammal concerning G-schedule. Therefore, on this point, the appellant is entitled to succeed.
10. Mr. T. R. Ramachandran, learned counsel appearing for the respondents in this appeal, would submit that it is axiomatic in interpreting a Will, the entire will must be read as a whole. Only then the true intention of the testator can be ascertained. After referring to paragraph 12 of the Will, learned counsel states that it was the cherished desire of the testator that permanent arrangements must be made as he also observes at that time having no son but the daughters as the only heirs. Therefore, if the position of law as it then stood, came to be reiterated in the will, certainly S. 14(1) alone will come into play. This besets the point, viz., that with regard to E schedule Mangalam has not been given a restricted right in regard to alienation or enjoyment. In support of the above submission, reliance is placed on the ruling of a single Judge of this Court, reported in Hamsaveni Ammal v. Rajagopala Chettiar, : (1977)1MLJ207 . Therefore, under Hindu Law prior to 1956, as seen from Mullah, 10th Edn, page 12 Sec. 43, the daughter's son would come in only after the daughter and provision was sought to be made for that. Having regard to that position of law, the testator merely declared the then existing law which would apply only to See. 14(1) of the Hindu Succession Act.
11. As regards the other appeal A.S. 689 of 1978, learned counsel for the appellant (plaintiffs) in so far as he attacks the findings in paragraph 16 of the judgment about the oral arrangement pleaded in paragraph 12 of the plaint, contends that the failure of Subbiah Iyer to execute another will cannot stand in the way of proving the oral arrangement. Why he failed to write another document or codicil can have no nexus to the oral arrangement pleaded. The fact that Mangalam was collecting rent is spoken to by all in which event is stands to reason that there was an oral arrangement. He further submits that there is also Ex A. 7 wherein such an arrangement is stated in a way. Therefore the finding requires to be reversed.
12. In opposition to this, Mr. G. Subramanian would contend that law requires strict proof of an oral arrangement. It is not that the learned Subordinate Judge held that in the absence of another will or codicil by Subbiah Iyer the oral arrangement could not be accepted altogether. That was taken into consideration as one of the pieces of evidence. Besides that, on merits it was found that there was no such oral arrangement for which valid and cogent reasons have been given, and as such no interference whatsoever is warranted with regard to that finding.
13. In regard to the above arrangements in both these appeals, the following three points emerge for determination. (1) What is the interpretation to be placed on the terms of Ex.A. 3 concerning the bequest in favour of the daughters particularly E schedule; (2) To the case on hand, will Sec. 14(1) of the Hindu Succession Act apply; (3) Is the oral arrangement pleaded in paragraph 12 of the plaint true or valid?
14. No doubt, on point No. 1, as rightly contended by Mr. T. R. Ramchandran, learned counsel appearing for the plaintiff is axiomatic that while interpreting a Will all the clauses of the will must be read as a whole. But at the same time another principle cannot be lost sight of, viz., that no part of the Will should be rendered nugatory. Why we state this even at the outset is, it has some important bearing. We have very carefully read the Will, which is in Tamil. One thing that is clear is the testator Subbiah Iyer was only wise man. He was also a man of pious and charitable disposition. He had lived his full life. Why we say only wise is that he gave the details of how he secured affiance to his daughters and placed them in good position. Further, he wrote a will on 20-6-1945. That was cancelled, though after registration. Another will on 28-4-1952 was written and that too was cancelled. It is after these two this Ex.A. 3 registered will comes into existence. All the properties are his self acquisitions, earned by his dint of labour. After mentioning in paragraph 12 that concerning charities a permanent arrangement should be made for his salvation, he states as follows : -
( * ..............)
The word (* ) means restriction. As to what those restrictions are set out concerning each and every scheduled of the property. We are not concerned with 'A' to 'B' Schedules, because there is no controversy about the same before us. It is schedules E, F, and G particularly E schedule which requires our attention. In E schedule what is stated is that the E schedule property shall be enjoyed by my eldest daughter and after her, her son. Venkataraman no doubt, nothing is mentioned as to the restriction on power of alienation or enjoyment. That by itself is of no consequence. As we observed, if we are to accept the interpretation placed by Mr. T. R. Ramachandran, learned counsel appearing for the plaintiff, and hold that Mangalam gets an absolute estate under the terms of Ex.A. 3, the later part concerning succession by Venkataraman, her son would be rendered nugatory. Such a construction will land to anomalous results in that the testator's pious wish would be defeated. This is all the more so he earlier the testator says that he had conferred restricted estate on his daughters. This clause must have obviously reference to schedules E, F and G. Therefore, for our part we are unable to accept the interpretation placed by Mr. T. R. Ramachandran, learned counsel for the plaintiffs. In this connection we may usefuly refer to the case decided by the learned single Judge of this Court in Hamsaveni Ammal v. Rajagopal Chettiar : (1977)1MLJ207 . In that case our learned brother V. Ramaswarni J. was of the following view: It require strobe carefully noted that though in that will the words (*........ ) was used, yet, the learned Judge held it would only mean the restricted estate. Here, the position is all the more better for the appellants. As rightly contended by Mr. G. Subramaniam, with reference to E, F, and G schedules properties, the persons to succeed after the respective lives of the respective daughters are their respective sons or their named heirs. Therefore, the principle, contained in Sec. 97 of the Indian Succession Act will not come into play. The learned Subordinate Judge in paragraph 22 of the judgment held as follows -
'Therefore, I am in agreement with the learned counsel appearing for the second defendant that what has been conveyed under Ex.A. 3 in favour of Mangalathammal is only life interest in the E schedule properties.'
To that extent we uphold this finding. Accordingly, we answer point No. 1.
15. Turning to applicability of S. 14(1), it is necessary for us to give a small backdrop of the Hindu Law which existed prior to 1956, since argument was addressed on that. The principle as to the order of succession amongst sapindas (1) son, grandson (son's son) and great grandson (son's son's son). All the three come under categories 1 to 3, (2) widow (3) predeceased son's widow, widow of predeceased son of predeceased son (4) daughter (5) daughter's son. At page 189 in paragraph 122 in Mullah's Principles of Hindu Law, 15th Edn. what is stated is as follows -
The Privy Council and Mitakshara Stridhana (1) Property inherited by a son - A woman may inherit the ordinary property of a male, that is of her husband, father, son, etc. She may also inherit the stridhana of a female that is of her mother, mother's mother or daughter. Both there kinds of inherited property are stridhana according to the Mitakshara, but the Privy Council has held as to both these kinds of property that they are not stridhana In one set of cases before that Tribunal, the question was whether property inherited by a widow from her husband, that is property inherited by a woman from a male, was her shridbana. Their Lordships held that it was not, and that on her death it passed not to her heirs, but to the next heir of her husband. In the other set of cases the question was whether stridhana inherited by a daughter from her mother, that is, property inherited by a woman from a female was her stridhana. Their Lordships held that it was not, and that it did not down end to her (daughter's) stridhana heirs, but to the next heir of the mother.
(2) Share obtained by a widow on partition :
As to the share obtained by a widow on partition of the joint family property, it has been held by the Privy Council in Debi Mangal Prasad v. Mahadeo Prasad ILR (1912) All 234, that it is not her stridhana even under the Mitakshara law. The actual point decided in that case was that there was no substantial difference in principle between a woman property acquired by inheritance and that acquired by partition. It does not therefore, pass on her death to her stridhana heirs, but reverts on her death to the next heirs of her husband in the absence of an express agreement amongst the co-sharers to the contrary.'
It was on l7th June 1956, the Hindu Succession Act came into force, the day on which the assent of the President of India was obtained, un doubtedly, that legislation as pointed out by their Lordships of the Supreme Court in V. Thulasamma v. V. Sesha Reddy AIR 1977 SC 1944, is a leading authority. The purpose of the Act as pointed out at page 1947 is as under:-
Now sub-sec. (2) of S. 14 provides that nothing contained in sub-sec. (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 prescribed a restricted estate in such property. This provision is more in the nature of a proviso or exception to sub-sec. (1) and it was regarded as such by this Court in Badri Prasad v. Smt Kanso Devi : 2SCR95 . It excepts certain kinds of acquisition of property by Hindu females from the operation of sub-sec. (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 women 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-sec. (1). It cannot be interpreted in a manner which would rob sub sec. (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub-sec. (1). The language of sub-sec. (2) is apparently wise to include acquisition of property by a Hindu female under an instrument or a decree or order or award where the instrument decree, order or award prescribes a restricted estate for her in the property and this would apparently cover a case where property is given to a Hindu female at a partition or in lieu of maintenance and the instrument, decree, order or award giving such property prescribes limited interest for her in the property. But that would virtually emasculate sub-sec. (1), for in that event, a large number of cases where property is given to a Hindu female at a partition or in lieu of maintenance under an instrument, order or award would be excluded from the operation of the beneficent provision enacted in subsec. (1), since in most of such cases, where property is allotted to the Hindu female prior to the enactment of the Act, there would be a provision, in consonance with the old Sastric law then prevailing, prescribing limited interest in the property and where property is given to the Hindu female subsequent to the enactment of the Act, it would be the easiest thing for the dominant male to provide that the Hindu female shall have only a restricted interest in the property and thus make a mockery of sub-sec. (1). The Explanation to sub-sec. (1) which includes within the scope of that sub-section property, acquired by a female Hindu at a partition or in lieu of maintenance would also be rendered meaningless because there would hardly be a few cases where the instrument, decree, order or award giving property to a Hindu female at a partition or in lieu of maintenance would not contain a provision prescribing restricted estate in the property. The social purpose of the law would be frustrated and the reformist zeal underlying the statutory provision would be chilled. That surely could never have been the intention of the Legislature in enacting sub-sec. (2). It is an elementary rule of construction that no provision of a statute should be construed in isolation but it should be construed with reference to the context and in the light of other provisions of the statute so as, as far as possible, to make a consistent enactment of the whole statute. Sub-sec. (2) must therefore be read in the context of sub-sec. (1) so as to leave a large scope for operation as possible to sub-sec. (1) and so read, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a right, will; instrument, decree, or order or award, the terms of which prescribe a restricted estate in the property'.
16. One of us sitting singly on the interpretation of S. 14 in paragraph 17 in Thaiyanayaki Ammal v. Venugopala Pillai (1975) 88 ML.W. 688 held thus: -
'Whatever doubts were there earlier, the law is well settled in the present day, that if the compromise, or the award, or the deed, etc., is the source or the foundation of the right of the widow, restrictions prescribed there under would govern and to such a case, S. 14(2) alone would apply. On the contrary, if what the compromise, award or the document does is nothing More than tore state the law, as it then stood, the intervention of the same will not affect the rights of the widow in which events, S. 14(1) will apply. It is also well settled that S. 14(2) is in the nature of an exception to S. 14(1). I need hardly refer to any authority, excepting to quote the following passage from Mulla's Hindu Law, (14th Edn.) 1974, at page 906). Thus for instance, if the female Hindu had prior to the date of the decree title to the property and what the decree really does is to declare that title she cannot be said to have acquired the property under that decree. In order to invoke the application of this subsection it is necessary to satisfy the essential condition that the instrument which limits or restricts the estate should itself be the source or foundation of the female's title to the property. If she had an existing interest in the property, the inter-position of any instrument will not affect the operation of sub-sec. (1). The instrument, for instance, may be a decree or order or deed or partition but if the preexisting right was there, sub-see. (2) cannot have the effect of taking the property out of the coverage of sub-sec. (1).'
And the ruling in Badri Prasad v. Kanso Devi : 2SCR95 wherein it was held at page 1966-
'Sub-sec. (2) of S. 14 is more in the nature of a proviso or an exception to sub-sec. (1). It can come into operation only if acquisition in any of the methods indicated therein is made for the first time without there being any preexisting right in the female Hindu who is in possession of the property.'
No doubt this decision was set aside by a Division Bench of this Court by Ramaprasada Rao J. on Venugopala Pillai v. Thayyanayaki Ammal : AIR1979Mad124 . However, on the interpretation of these sections, the position of law was not in any way altered, since it is observed in paragraphs 23 and 24 as follows (at P. 130) -
'It is by now well established that Sec. 14(2) is an exception to Sec. 14(1). Under Sec. 14(1), any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. Sub-sec. (2) would apply in cases where such a possession is made for the first time by the female Hindu and not in assertion of or in acceptance of a pre-existing right in her. The explanation contemplates the case where the property is acquired by a Hindu female either by inheritance or at a partition or in any other manner whatsoever.
The acid test, therefore is to find whether under a given instrument the title is created in the widow for the first tune or the entitlement in her is merely a restoration of a right which she possessed already under the Hindu Law. The fact that under the compromise, Ex. A. 4 she was given a widows estate does not improve matters, because she had that right and she could proclaim that right as a preexisting right. In all fairness and having regard to the beneficial legislation introduced by our Parliament in 1956 to improve the conditions of a female heir under the personal law it cannot still be maintained that what was given to Arumbu under Ex A. 4 was by way of a male or a generous gesture on the part of Balakrishna; but it should be held that it was in recognition of a vested right in her to hold the properties as the persona of her husband but as a widows estate subject to the restriction ordinarily annexed thereto No doubt, the phrase in any other manner whatsoever referred to in the Explanation to See 14. It cannot be made elastic so as to render nugatory sub-sec of S 14. Lach case has to be de, idea on its own merits. If it could be clinchingly found that the vesting is as a result of a control and not in the due recognition of or in the obeisance to a pre-existing right then such a contract might in such peculiar circumstances be vied as one which is the source of title to the widow But in the instant case, we are unable to agree with Mohan J that it was only under Ex A. 4 the title m as created in the widow. The use of the words widows estate in Ex A 4 is significant. Apart from it Exs. A. 4 and A 1 are not similar in many respects. Therefore, if under the compromise what was given to the widow cannot be said to slope from the arrangement entered into between the parties but it was only in recognition of a pre-existing right, then the ratio of the decision of the Supreme Court in Thulasamma v. Sesha Reddi AIR 1977 SC 1944, squarely applies to the facts of this case and it should be held that Arumbu was possessed of those properties as on the date of the passing of the Act of 1956 and such properties acquired by her no doubt under the compromise Ex.A. 4 should be deemed to be her absolute properties as under S. 14(1), she shall hold it as full owner thereof and not as a limited owner.'
17. Then going back to V. Thulasamma v. Sesha Reddi AIR 1977 SC 1944 in paragraphs 63 and 70 the following observations have been made :-
Thus on a careful scrutiny and analysis of the authorities discussed above the position seems to be that the view taken by the High Courts of Bombay, Andhra Pradesh, Patna, Mysore,. Punjab, Calcutta and Kerala to the effect that the widows claim to maintenance, even though granted to her subject to certain restrictions is covered by S. 14(1), and not by sub-sec (2) is based on the following premises :
(1) That the right of a Hindu widow to claim maintenance is undoubtedly a right against property though not a right to property. Such a right can mature into a full-fledged one if it is charged on the property either by an agreement or by a decree Even otherwise where a family possesses property, the husband, or in case of his death, his heirs are burdened with the obligation to maintain the widow and, therefore, the widow's claim for maintenance is not an empty formality but a pre-existing right
(2) S. 14(2) which is in the nature of a proviso to S. 14(1) cannot be interpreted in a way so as to destroy the concept and defeat the purpose which is sought to be effectuated by S. 14(1) in conferring an absolute interest on the Hindu woman and in doing away with that was here to before known as the Hindu woman's estate The proviso will apply only to such cases which flow beyond the purview of the Explanation to S. 14(1)
(3) That the proviso would not apply any grant or transfer in favour of the widow hedged in by limitation or restrictions, where the grant is merely in recognition or declaration of a pre-existing right. It will apply only to such a case where a new right which the female did not possession at all is sought to be conferred on her under certain limitation or exception. In fact in such a case, even if a conditional grant is made to a male, he would be bound by the condition imposed. The proviso wipes out the distinction between a male and female in this respect.
We would now like to summarise the legal conclusions which we have reached after an exhaustive considerations of the authorities mentioned above on the question of law involved in this appeal as to the interpretation of S. 14(1) and (2) of the Act of 1956
These conclusions may be stated thus:-
(1) The Hindu females right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but in a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajvalkya to Manu. Such a right may not be against to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained there from. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights.
(2) Sec. 14(1) and the Explanation thereto nave been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote socio-economic ends sought to be achieved by this long needed legislation.
(3) Sub-sec. (2) of Sec. 14 is in the nature of a proviso and has a field of its own without interfering with the operation of S. 14(1) materially. The proviso should not be construed in a manner so as to destroy the defect of the main provision or the protection granted by Sec. 14(1) or in a way so as to become totally inconsistent with the main provision.
(4) Sub-sec. (2) of Sec. 14, applies to instruments, decrees, awards, gifts etc., which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm endorse, declare or recognise pre-existing rights. In such cases a restricted estate in favour of a female is legally permissible and S. 14(1) will not operate in this sphere. Where however, an instrument merely declares or recognises a pre-existing, such as a claim to maintenance or, partition or share to which the female is entitled, the sub-section has absolutely no application and the female's limited interest would automatically be enlarged into an absolute one by force of S. 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus, where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-sec. (2) and would be governed by S. 14(1) despite any restrictions placed on the powers of the transferee.
(5) The use of express terms like Property acquired by a female Hindu at a partition, or in lieu of maintenance' or arrears of maintenance' etc, in the Explanation to S. 14(1) clearly makes sub-sec. (2) inapplicable to these categories which have been expressly excepted from the operation of such sub-sec. (2).
(6) The words 'possessed by' used by the Legislature in S. 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of S. 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title.
(7) That the words 'restricted estate' used in S. 14(2) are wider than limited interest as indicated in S. 14(1) and they include not only limited interest but also any other kind of limitation that may be placed on the transferee.'
18. It is not necessary to refer to the other cases, because the position of law is very clear from the above judgments, which have stood to the test of time. We are totally unable to accept the argument of Mr. T. R. Ramachandran learned counsel appearing for the plaintiffs, that prior to 1956, when the testator executed a will he merely declared the then existing law thaSt the daughter will be entitled to only a limited estate No doubt, the explanation to S. 14(1) uses the word devise. That devise according to him is Ex.A. 3 in this case. This argument ignores the wordings of S. 14(1) which are very relevant for our purpose. The will itself got interposed before the statutory right would take in. It therefore, by the terms of Ex. A. 3 the daughter had obtained a restricted right then that term will govern and therefore S. 14(2) alone will come into play. Accordingly, we set aside the finding of the learned Subordinate Judge in paragraph 22 with regard to the interpretation of Sec. 14 of the Hindu Succession Act.
19. Lastly turning to the oral arrangement, no doubt, the learned Subordinate Judge held to buttress his reasoning, the oral arrangement pleaded in paragraph 12 of the plaint was neither true nor valid, that Subbiah Aiyer having executed two prior wills would have certainly executed and her will or codicil if there was such an oral arrangement and that by itself will not militate against the other finding, to conclude there was no oral arrangement. First of A the terms of such arrangements have not been proved at all. Secondly, there are no records to show that the 8th defendant has given up her share, while there is Ex. B 17 in respect of item No. 1 of the suit property. Thirdly, even as early as in 1963, the house tax demand notice was only on defendants 1 and 8 as evidenced by Ex. B 10. Like wise notices under Exs. B 2, B 10 and B 11, demanding taxes, were only on defendants 1 and 8. Similarly are notices Exs. B 3 and B 5. Fourthly Mangalam was collecting rent only by reason of arrangement between parties.
20. Ex. A 7 cannot advance the case of the appellants in App. 669 of 1978 (plaintiffs) because Ex.A 7 is evidently after the suit. Inasmuch as that deals with properties not included in the will, it can have no bearing whatever. Accordingly we uphold the finding of the learned Subordinate Judge that the oral family arrangement pleaded in paragraph 12 of the plaint is neither true nor valid.
21. In the result, App. No. 389 of 1978 is allowed and App. No. 669 of 1978 is dismissed. We make it clear that the result of this will be that item 4 of the plaint schedule which is equivalent to item 2 E schedule of Ex. A 3, will stand excluded from purview of partition. In other respects, the decree of the trial Court will stand confirmed. The parties are directed to bear their respective costs in these appeals.
22. Order accordingly.