(1) The scope of this second appeal lies within a limited compass. The prior facts are briefly the following. One Sellammal enjoyed the suit properties after the death of her husband Arumuga Odayar sometime in 1934 or 1935. During her lifetime, she executed a document, Ex. B-1, styled as a settlement deed, on 25-11-1945, in favour of Muthuswami Odayar, her husband's brother's son. The effect of this document has to be considered in this second appeal, and I shall do so a little later in the judgment. On the death of Sellammal issueless, in December 1958, the plaintiffs who are the sons of another brother of her husband filed a suit for partition impleading besides the aforesaid Muthuswami Udayar as the second defendant, his brother Karrupudayar as the first defendant. Defendants 3 and 4 are alienees.
The case of the plaintiffs was that the settlement deed was not valid beyond the lifetime of Sellammal, and that it was so held by the District Munsif in a prior decision, O.S. 147 of 1947, and which decision was confirmed by this court in second appeal. The plaintiffs also contended that Sellammal by means of this gift deed divested herself of her possession in the suit properties; that that state of affairs also existed in 1956, when the Hindu Succession Act (XXX of 1956) came into force, and continued up to her death in December 1958. Consequently, S. 14 of ACT XXX of 1956 would not have any effect on the properties settled prior to the coming into force of the Act, by the window under Ex. B-1 and, on her death, her reversioners, namely, plaintiffs 1 and 2 and defendants 1 and 2 were entitled to share the properties.
On the other hand, the main contesting defendants, the second defendant, urged that, even after the settlement deed the widow was in constructive possession of the properties, and in 1956 when Act XXX of 1956 came into force, her interest became an absolute interest and the second defendant under the settlement could take advantage of that absolute interest, and claim the entire property, and thus resist the plaintiff's suit for partition into shares among the reversioners. The trial Court decreed the suit, and defendants 1 and 2 appealed. In the appeal, the learned Subordinate Judge of Cuddalore confirmed the decision of the trial Court, except in regard to item 23. That item, as it appeared from the evidence, did not belong to the estate of Sellammal's husband, and therefore, the second defendant, the settlee from her, could claim that property in full right and without its being brought into the common hotchpot for division. The appellate court confirmed the trial Court's decision in regard to the other items and modified it only in respect of item 23. Against that decision, the present second appeal is filed by defendants 1 and 2.
There is also a Memorandum of cross-objections appeal filed by the plaintiffs in regard to item 23. It may be said straightaway that, so far as item 23 is concerned, the finding of the lower appellate court that it did not belong to the estate of Arumugha Udayar was based on the evidence and this finding of fact is not susceptible of being interfered with in second appeal, and, therefore, the cross appeal is dismissed.
(2) In regard to the second appeal, the decision turns on the interpretation of Ex. B-1, the settlement deed of Sellammal. Ex. B-1 can be rendered thus:
'You are my husband's elder brother's son. You have been looking after the cultivation of my lands and also looking after me. On account of my affection for you, I am executing the settlement deed in your favour of the scheduled property worth Rs. 300. I am also putting you in possession of the aforesaid properties. During my lifetime, you can enjoy the properties without making any alienation. You can enjoy the income from the properties and remain in my family as you have been doing heretofore. If it is found necessary to make any alienation of the properties, you and I can jointly do so. After my lifetime you can enjoy the properties in absolute right. You should perform my obsequies.'
It is clear from the recitals in this document that Sellammal granted to the second defendant immediately a right to be in possession of the properties, and also to enjoy the income from the properties. There is a restriction placed only in respect of alienation of the properties during the lifetime of Sellammal. It was provided that, if there was a necessity for such alienation, both herself and the second defendant should join in making the alienation. Learned counsel appearing for the appellants urged that the clause thus providing for a restriction on alienation, and the clause providing for a right in Sellammal to join the second defendant for the purpose of making an alienation, would imply that she retained constructively a possessory interest in the properties, that this possessory interest subsisted inhere when the Act came into force in 1956, that under S. 14 of the Act, it became enlarged into an absolute interest, and that interest was transmitted to the donee of the properties under Ex. B-1. It is not possible to agree with this contention.
So far as the possession of the second defendant is concerned, the recitals in the document leave no room for doubt that Sellammal divested herself of her right to be in possession of the properties. There is no question therefore of her retaining any right of possession, after the execution of the gift deed, either actual or constructive. The fetter against alienation imposed upon the donee had nothing to do with his right to possession. Nor will the postponement of an absolute right to him, till the death of the widow, have any effect upon the question of possession. The position of the donee after the gift, was that he had a right to be in possession during the lifetime of the widow, and so far as this right was concerned, there was no restriction or modification. It was a real possession, which the donee got under the document, and the widow simultaneously divested herself of her possession.
(3) The decisions which learned counsel have cited before me in this connection all derive authority from the principal decision of the Supreme Court in Kotturuswami v. Veeravva, : AIR1959SC577 . There it is laid down that the word 'possessed' in S. 14 of Act XXX of 1956 is used in a broad sense and in the context means the state of owning in one's hand or power. The judgment makes the position clear in the following words:
'Thus the opening words 'property possessed by a female Hindu' obviously mean that to come within the purview of the section the property must be in possession of the female concerned at the date of the commencement of the Act. That possession might have been either actual or constructive or in any form recognised by law, but unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word 'possession' in the widest connotation, when the Act came into force, the section would not apply.'
In the present case there is no doubt that the widow had no possession, actual or constructive, after the settlement deed. The restriction upon the power of alienation had nothing to do with the possession for the purpose of applying S. 14 of the Act. The other decision cited by learned counsel for the appellants A. V. Subba Reddi v. Penchalamma, AIR 1962 Andh Pra 368 was a case where the widow retained the property in her possession and made only a gift of the vested remainder after her lifetime to her grand-daughters. That was a case, where the widow obviously had possession of the properties and S. 14(1) of the Act was applied for enlarging it into an absolute interest.
Viswapathi v. Venkatakrishna, : AIR1963AP9 , was a case where, on the averments of the plaint, the widow was in possession on the date when Act XXX of 1956 came into force, and that case also gave scope for enlarging that interest into an absolute one under S. 14(1) of the Act. The other decisions, viz., Gadam Peddayya v. Venkataraju, : AIR1965AP66 and Shib Dai v. Ghaurilal, AIR 1965 J. & K. 11, are all cases where the widow retained possession of the property and later transactions affecting the property served only to maintain her in possession according to her pre-existing rights which were recognised. These cases also, therefore, do not have any application here.
(4) Finally, learned counsel for the appellants relied upon a sale deed, Ex. B-2, executed by the widow and the second defendant a few months after the execution of Ex. B-1, when they purported to sell item 18 of the settled properties. It was urged that the conduct of the two persons in this respect, would show that the widow retained her right to possession of the property even after Ex. B-1. But this sale deed does not say specifically that possession was with the widow. Its execution may be consistent with the terms expressed in Ex. B-1, that possession was to be with the second defendant, whereas the right of alienation was retained in the hands of the widow and the second defendant jointly. The widow might have joined in the sale deed, in view of the specific reservation about alienation in the gift deed. In view of the above circumstances, I am of opinion that the appeal is devoid of any merit.
(5) The second appeal is dismissed. There will be no order as to costs in both the appeal and the cross-appeal. No leave.
(6) Appeal dismissed.