1. Appellant Jagannatham Pillai sued to recover possession of the suit properties as reversioner to the estate of one Sivachidambaram Pillai, who died issueless on 17-1-1904, leaving his young widow Valambal as his only heir under the Hindu law. Valambal claimed in O.P. 506 of 1912 on the file of the District Court, Thanjavur, for letters of administration of the estate of her husband Sivachidambaram Pillai relying on a will alleged to have been executed by him on 17-1-1904, but really dated 18-1-1904. The appellant's father Nataraja as the nearest reversioner contested the claim of Valambal on the ground that the said will was not genuine and his plea was upheld and the Letters of Administration were refused. On 29-5-1919 Valambal executed a settlement deed, the original of Ex. A. 5, in respect of almost all the suit properties in favour of her younger brother Souriraja Pillai, the second defendant in the suit.
On 19-3-1959 Valambal obtained a settlement deed under the original of Ex. A. 7 from the second defendant in respect of the properties covered by the settlement deed the original of Ex. A. 5 and, within four days, dealt with the properties by executing a settlement deed under the original of Ex. A. 8 in favour of her cousin Kunjithapatham Pillai, the first defendant in the suit, as though she became entitled to the properties absolutely. Subsequently, she died on 14-1-1961. After exchange of notices evidenced by Exs. A. 10 and A. 11, the appellant filed the suit along with his paternal aunt Kalyaniachi from whom also he obtained a settlement deed in his favour. The learned Sub-ordinate Judge, Mayuram, who tried the suit, found that Items 20 to 22, 44, 48 and 49 did not belong to the estate of Sivachidambaram and upheld the claim of the contesting defendants 1 and 2, the Valambal acquired an absolute right to the properties covered by the original of Ex. A. 5 in respect of which she obtained the settlement deed, the original of Ex. A. 7 and in the result, dismissed the suit. Hence the first plaintiff Jaganatham Pillai has preferred this appeal impleading the defendants and the second plaintiff as respondents.
2. The finding of the trial court that the appellant Jagannatham Pillai is the reversionary heir to the estate of Sivachidambaram under the Hindu Law, but for the provisions contained in Section 14(1) of the Hindu Succession Act is not disputed, in view of the undisputed fact that his father Nataraja Pillai was put forward by Valambal as the nearest reversioner of her husband Sivachidambaram even when she applied for letters of administration with the will of her husband annexed in 1912.. ... ... ... ... ... ... ... ... ... ...
(His Lordship dealt with the facts and then proceeded.)
3. When this appeal first came up before VenkataRaman and Krishnaswami Reddy, JJ. the appellant filed C.M.P. 2690 of 1967 for reception of Ex. A. 26, a release deed executed by the second defendant in favour of the first defendant on 24-11-1948, and Ex. A. 27, a settlement deed executed by the first defendant in favour of the second defendant on the next day. These documents were received by this court and the parties were permitted to adduce additional evidence before the trial court. The learned Subordinate Judge of Mayuram recalled and examined D.W. 1, Souriraja Pillai and also examined D.Ws. 6 and 7 and marked additional documents Exs. A. 28 to A. 31.
4. The plea taken by defendants 1 and 2 in their written statement is that though Valambal executed the settlement deed, the original of Ex. A. 5. it was not given effect to and that she continued to remain in possession of the properties comprised in it, with the result that she became entitled to the properties absolutely by virtue of S. 14(1) of the Hindu Succession Act. The learned Subordinate Judge has in paragraph 25 of his judgment found that it is difficult to hold with any degree of certainty on the unsatisfactory evidence on record that the settlement deed Ex. A. 5 was given effect to but he has proceeded to discuss the case on the assumption that the settlement deed was given effect to. Having regard to the recitals in the settlement deed Ex. A. 5 and the subsequent documents executed by the parties, it is difficult to find that Ex. A. 5 was not given effect to. We may at once state that Mr. V. K. Thiruvenkatachari appearing for defendants 1 and 2 made no attempt to substantiate that Ex. A. 5 was not given effect to though he stated that he should not be taken to have given up that case. Ex. A. 26 shows that the second defendant released his interest in his joint family properties and the properties covered by the original of Ex. A. 5 for a sum of Rs. 35,000. But he did not actually receive the sum of Rs. 35,000 in cash.
On the very next day, 25-11-1948, the first defendant executed a settlement deed, the original of Ex. A. 27 in favour of the second defendant giving him absolutely some properties and also a life interest in the properties covered by the settlement deed, the original of Ex. A. 5. On 19-3-1959 the second defendant executed a settlement deed, the original of Ex. A. 7, in respect of the properties covered by the original of Ex. A. 5 in favour of his elder sister Valambal and the document was attested by the first defendant. On 23-3-1959 Valambal settled the properties in favour of the first respondent Kunjithapatham Pillai under the original of Ex. A. 8. On the 28th November 1959 the properties under the original of Ex. A. 9 in favour of the second defendant giving him a life interest in the said properties.. ... ... ... ... ... ... ... ... ... ...
(Discussion of evidence omitted).
It is on account of the unsatisfactory nature of the evidence the learned Advocate for defendants 1 and 2 made no attempt to rely on the same to contend that the settlement deed executed by Valambal under the original of Ex. A. 5 was never given effect to.
5. The main question for consideration in this appeal is whether Valambal became entitled to the properties covered by Ex. A. 7 absolutely by virtue of Section 14(1) of the Hindu Succession Act. Thiru A. Sundaram Iyer urged that as the second defendant had only a life interest in the properties covered by Ex. A. 5 by virtue of his having executed the release deed Ex. A. 26 in favour of the first defendant and obtained the settlement deed Ex. A. 27 from him even in November 1948. Valambal could not have obtained a limited woman's estate as known to Hindu Law by taking the document Ex. A. 7 from the second defendant in 1959 and she cannot therefore invoke Section 14(1) of the Hindu Succession Act to enlarge her estate as absolute. It is true the appellant has not put forward any such case in the plaint as he was not aware of the existence of the documents Exs. A. 26 and A. 27 at that time. In fact, he has pleaded in para 9 of his plaint that by the settlement deed dated 19-3-1959, the original of Ex. A. 7, Valambal can, if at all, get from the second defendant only a limited estate which she herself conveyed.
It is true the recitals in Ex. A. 7 do not take note of the existence of the documents Exs. A. 26 and A. 27 and proceed on the footing that the second defendant was in possession of the properties covered by it by virtue of the settlement deed of 1919, the original of Ex. A. 5. and that he conveyed the properties to his sister Valambal and delivered possession of the said properties back to her. It is true that by virtue of Exs. A-26 and A-27 the first defendant Kunjithapatham Pillai had a vested remainder in the properties of Valambal in Sithakadu dealt with under those documents and if the said vested remainder continued to remain with the first defendant even after the execution of Ex. A. 7. Valambal could not claim to have acquired a woman's estate in her Sithakadu properties by virtue of the document Ex. A. 7. But the first defendant Kunjithapatham Pillai has attested the document Ex. A. 7 after making a recital that he has acquainted himself with the contents of the document. It is true that mere attestation proves no more than that the signature of an executing party has been attached to a document in the presence of the attesting witnesses. The following observations in Raj Lukhee Debea v. Gokool Chander Chowdry. (1869) 13 Moo Ind App 209 are relevant for the present discussion:
'Their Lordships cannot affirm the proposition, that the mere attestation of such an instrument by a relative necessarily imports concurrence. It might no doubt, be shown by other evidence that when he became an attesting witness, he fully understood what the transaction was, and that he was a concurring party to it, but from the mere subscription of his name that inference does not necessarily arise.'
The principles governing estoppel by attestation and consent are clearly stated in page 1064 of Sirkar's Law of Evidence. 11th Edn. Volume 2. The entire case law on the subject has been reviewed by Ismail, J. in Ramaswami Gounder v. Ananthapadmanabha Iyer, 84 MLW 176. As pointed out by Kumaraswami Sastri, J. in Nayakammal v. Munuswami Mudaliar, 20 MLW 222 : AIR 1924 Mad 819 it is commonest thing in this country for attestations to be obtained from persons having a possible interest in the property with the object of binding them later on. He has observed that he has rarely come across a case where a person having an interest or contingent in the property has attested the deed, without enquiring into its contents. In the present case, the first defendant has attested Ex. A. 7 with knowledge of its contents. In fact he has given evidence of as D.W. 6 that by virtue of Ex. A. 7 he had settled the properties in favour of Valambal. He has also asserted that Sithakadu properties belong to Valambal. Nothing was elicited to discredit the said statements of the first defendant.
In Ramakotayya v. Viraraghavayya : AIR1929Mad502 a Full Bench of this court has held that if the next presumptive male reversioner consents, though for no consideration, to an alienation without necessity by a Hindu widow (e.g. a gift as in that case) the transaction will be binding on him when he actually succeeds to the estate. The consent was given in that case by the presumptive reversioner by attesting the gift deed. In Ramgowda Annagowda v. Bhausaheb the attestation of a deed of alienation made by a widow by the presumptive reversioner was held to hind the actual reversioners. The widow in that case alienated nearly the whole property of her husband by three deeds executed and registered on the same day. By the first deed she gave a property to her brother, by the second she sold half of another property to A and by the third she sold the other half of that property to her son-in-law. The signature on each of the deeds was attested by the two other alienees. On the death of the widow. A was the heir to her husband's estate and he did not seek to set aside the alienations. But after his death, his son and grandsons brought a suit to recover the whole property.
It was held by the Privy Council that the three deeds were to be regarded as forming one transaction entered into by all the persons interested in the property and that A and consequently the plaintiffs in that case were precluded from disputing the alienations; the alienations being by the widow were voidable, not void and A being precluded from questioning them, it was no necessary to consider whether he could validly, have agreed to sell his reversionary interest. But in the present case the first defendant by attesting the original of Ex. A. 7 with knowledge of its contents really consented to whatever interest he had in the properties passing title to Valambal and it was no longer open to him to question the title of Valambal to the properties covered by it. In fact, he affirmed it and took the settlement deed, the original of Ex. A. 8, from Valambal. We have already referred to the clear evidence of the first defendant that he had settled the properties in favour of Valambal under Ex. A. 7 and pointed out that it was not challenged in cross-examination. It should be noted that this evidence was given effect after Exs. A. 26 and A. 27 were admitted in evidence by this court by order on C.M.P. 2960 of 1967 in which the advocate for the appellant urged that by virtue of Ex. A. 7 only the limited interest of the second defendant passed to Valambal. We are, therefore, unable to accept the contention of Sri A. Sundaram Iyer, that by virtue of Ex. A. 7 Valambal got only the life interest of the second defendant in the properties covered by Ex. A. 27.
6. The main question for consideration in this appeal is the nature of the interest acquired by Valambal in respect of the properties transferred by her under Ex. A. 5 by virtue of the settlement deed Exhibit A. 7 taken by her. In Ganesh Mahanta v. Sukriya Bewa : AIR1963Ori167 it has been held that Section 14(1) of the Hindu Succession Act does not purport to enlarge the right, title or interest of the alienee from a widow with regard to the transfers effected prior to the commencement of that Act, that a donee from a widow prior to the commencement of that Act acquires only a widow's estate in the gifted property and that even if the donee retransfers the property in favour of the widow after the commencement of the Act, the widow would acquire only a limited interest and not an absolute right in the property as the donee cannot transmit any title higher than what he himself had. It is pointed out in that decision that if the property had been transferred to a stranger instead of a widow, the stranger cannot get absolute right and that the retransfer in favour of the widow would not stand on any better footing.
This decision has been followed by a Bench of the Andhra Pradesh High Court in Venkataratnam v. Palamma, 1970 2 AWR 264. It is pointed out at p. 278 of this decision, that'reconveyance in favour of the widow will not revive her original right in the property and she will be holding the estate reconveyed just like any other stranger alienee, for the lifetime of the alienor widow, though she happens to be that widow, and there can be no question of one alienation cancelling the other and the status quo ante, the widow's alienation being restored.' The Andhra Pradesh High Court did not agree with the decision of Ramamurti J. in Chinnakolandai Goundan v. Thanji Gounder : AIR1965Mad497 , following the decision in Teja Singh v. Jagat Singh AIR 1964 P&H; 403 Ramamurti J. has, if we may say with respect, rightly stressed the distinction between a reconveyance in favour of a widow herself and an alienation in favour of a stranger. The following passage at page 331 of the decision is relevant for the present discussion:--
'If an alienation is made by the widow and if the same is questioned by a reversioner either in a suit or otherwise, thereby casting a cloud on the title of the alienee, there is nothing in Hindu law of under the general principles of law of transfer which would prevent the alienee conveying back the property to the alienor, in the same capacity and in the same right in which it was conveyed by the widow. In the case of an ordinary sale if the title of the purchaser is questioned he can convey back the property to the vendor and get back the price paid by him.'
Even in Teja Singh v. Jagat Singh, AIR 1964 P&H; 403, it is pointed out that in respect of a declaratory decree obtained by a reversioner about an unauthorised alienation by the widow it is open to the alienee to reconvey the property to the widow and put her in her original position as such an act would be only in conformity with the declaratory decree and not in violation of it. On Letters Patent Appeal this decision has been later affirmed by a Full Bench of the Punjab High Court in Jagat Singh v. Teja Singh . In Teja Singh v. Jagat Singh, AIR 1964 P&H; 403 there is reference to an earlier decision in Md. Rafiq v. Faiz Ahmed, AIR 1933 Lah 597 where a Division Bench held that the widow and the alienee could by mutual consent cancel the alienation in respect of which the reversioner had obtained a declaratory decree in his favour. It has been observed by Jai Lal J. in that decision that'no law has been quoted to show that it was not open to the parties by mutual agreement to cancel the sale under the circumstances and obviously there is no law to that effect.'
7. We shall proceed to consider whether the decision of Ramamurti, J. in : AIR1965Mad497 taking the same view as in and affirmed by the Full Bench in , should be preferred to the view expressed in 1970-2 Andh WR 264, following the decision in : AIR1963Ori167 .
8. The basis of the Bench decision in 1970 2 AWR 264 is that an alienee cannot transmit any title higher than that he himself has. At p. 303 of the book'A Selection of Legal Maxims' by Broom, 10th Edn. it is pointed out that it is a well known general rule, imported into our own from the civil law, that no man can transfer a greater right or interest than he himself possess; nemo plus juris ad alium transferee potest quam ipse haberet. The learned author has pointed out that the owner, for example, of a base or determinable fee can, as a rule, do no more than transfer to another his own estate, or some interest of inferior degree created out of it. The maxim above mentioned which is one of the leading rules as to title or the equivalent maxim non dat qui non habet did not, before the Real Property Act. 1845, apply to wrongful conveyance or tortious acts. The general maxim is not without exceptions recognised in real property.
In Topham's Real Property 11th Edn. at page 48, a summary of the power of a tenant for life under the Settled Land Act 1925 is given. Under the Settled Land Act, 1882 a tenant for life could sell the whole fee simple, even though he had only a life estate vested in him, and even if he had only an equitable interest for life. The explanation is that the tenant for life under the old Act sold under a special statutory power as a sort of agent for all the persons interested in the property. Under the Settled Land Act. 1925 the whole legal estate is vested in the tenant for life on the trusts of the settlement and the tenant for life can sell the whole fee simple if it is vested or declared to be vested in him by the vesting deed. This is a striking exception to the rule that a man cannot sell more than he has got.
9. There are provisions in the Specific Relief Act for rescission and cancellation of contracts. Section 28 of the Specific Relief Act, 1963 corresponds to Section 35 of the old Act and it deals with rescission of contracts which are voidable. A sale deed could be avoided if there is a material defect in the title of the vendor not disclosed by him. Thus if a widow represents that there is necessity for alienation and sells the property, the purchaser could get the sale rescinded on coming to know about the misrepresentation made by the widow in respect of the necessity for the alienation. If a sale is rescinded the parties would revert to their original legal position, that is restored to their status quo ante subject of course to the rights of innocent third parties.
10. The real question to be considered in cases of this kind is to find out the nature of the interest acquired by the widow by virtue of the reconveyance in her favour. In paragraph 177-A of Mullah's Hindu Law. 13th Edn. at page 200, it is stated that where a widow sells the entire property left by her husband and from the sale proceeds acquires new property the property so acquired partakes of the nature of her husband's estate. It is clear from paragraph 211 at page 238 of the same book, that a widow may acquire property absolutely by adverse possession. But if the property acquired by adverse possession was claimed and held by her not in her own right, but as a widow representing her husband's estate she would take no more than a widow's estate in the said property.
If a widow makes an alienation for necessity in respect of property in which she has only a limited estate, she can convey absolute title to the alienee, but if she repurchased the property, it could not be contended that she could get an absolute title on the ground that her vendee took the property absolutely from her. Prior to the alienation under Ex. A. 5. Valambal had only a limited estate known as a widow's or a woman's estate. In Janakiammal v. Narayanaswami, ILR 39 Mad 634 : AIR 1916 PC 117 the Privy Council has pointed out that the widow's right is of the nature of a right of property; her position is that of a co-owner; her powers in that character are, however, limited; but so long as she is alive no one has any vested interest in the succession. These observations have been extracted at page 195 of Mullah's Hindu Law, 13th Edn. in paragraph 176.
11. The following passage at p. 531 in Rangasami Gounden v. Nachiappa Gounden, ILR 42 Mad 523 : AIR 1918 PC 196 is relevant for the present discussion:
'It has often been noticed before, but it is worth while to repeat, that the rights of a Hindu widow in her late husband's estate are not aptly represented by any of the terms of English law applicable to what might seem analogous circumstances. Phrased in English law terms, her estate is neither a fee nor an estate for life, nor an estate tail. Accordingly one must not, in judging of the question, become entangled in Western notions of what a holder of one or other of these estates might do. On the other hand, what a Hindu widow may do has often been authoritatively settled'. In Nagireddi v. Durairaja Naidu : 2SCR655 the Supreme Court has pointed out the legal position of an alienee of a property from a Hindu widow vis-a-vis the reversioner upon the death of the widow. The alienation by the widow was not void, but voidable and the reversioner might elect to assent to it and treat it as valid. It did not absolutely come to an end on the death of the widow. In fact, the reversioner could ratify the alienation. In Kalishankar Das v. Dhirendranath : 1SCR467 , it is pointed out that if there is no legal necessity, the transferee gets only the widow's estate, which is not even an indefeasible life estate for it can come to an end not merely on her death, but on the happening of other contingencies like remarriage, adoption etc. We have already referred to the observations of Jai Lal J. in the Bench decision in AIR 1933 Lah 597 that it was open to the parties by mutual agreement to cancel an alienation to which they were parties and the effect of the same was to restore their status quo ante.
12. Even in paragraph 9 of the plaint it is clearly stated that by the settlement deed dated 19-3-1959, namely, the original of Ex. A. 7. Valambal can, if at all, get from the second defendant only the limited estate which she herself conveyed. In fact, the case of the appellant is that she cannot enlarge the limited estate into an absolute estate by virtue of Section 14(1) of the Hindu Succession Act, as she was not in possession of the properties covered by Ex. A. 7 on the date when the said Act came into force, a contention which we shall deal with later. It is true under the terms of Ex. A. 7, the second defendant purported to convey the properties covered by it absolutely to Valambal and the first defendant concurred in it, by attesting the document with full knowledge of the same. But Valambal and defendants 1 and 2 cannot by bringing into existence these documents give absolute title to Valambal, if she did not get it by virtue of Section 14(1) of the Hindu Succession Act.
We have already referred to the evidence of defendants 1 and 2 which clearly show that at the request of Valambal, they gave back the properties covered by Ex. A. 5 to her, as she wanted to deal with the same. There can therefore be no doubt that but for Section 14(1) of the Hindu Succession Act Valambal would have a limited interest known as the widow's estate, or a Hindu woman's estate, in the properties covered by Ex. A. 7 by virtue of the execution of the document by the second defendant and due attestation of the same by the first defendant with full knowledge of the same.
13. Section 14(1) of the Hindu Succession Act is as follows:
'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'.
The effect of Section 14(1) of the Hindu Succession Act in the light of the scheme of the Act, with particular reference to Section 4 of the Act, has been considered in the following passage by the Supreme Court in Munnalal v. Rajkumar : AIR1962SC1493 -
'By Section 14(1) manifestly it is intended to convert the interest which a Hindu female has in property however restricted the nature of that interest under the Sastric Hindu Law may be into absolute estate. Pratapmall's case undoubtedly laid down that till actual division of the share declared in her favour by a preliminary decree for partition of the joint family estate a Hindu wife or mother was not recognised as owner, but that rule cannot in our judgment apply after the enactment of the Hindu Succession Act. The Act is a codifying enactment and has made far reaching changes in the structure of the Hindu Law of inheritance and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu Law as interest in her estate. She is under the Act regarded as a fresh stock of descent in respect of property possessed by her at the time of her death. It is true that under the Sastric Hindu Law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance. She was not entitled to claim partition. But the legislature by enacting the Hindu Women's Right to Property Act, 1937 made a significant departure in that branch of the law; the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned she became owner in severalty of her share, subject, of course, to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil. It cannot be assumed having regard to this development that in enacting Section 14 of the Hindu Succession Act, the legislature merely intended to declare the rule enunciated by the Privy Council in Pratapmall's case. Section 4 of the Act gives an overriding effect to the provisions of the Act. It enacts--'Save as otherwise expressly provided in this Act--(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b)............ Manifastly, the legislature intended to supersede the rule of Hindu law on all matters in respect of which there was an express provision made in the Act.'
It has been held in the decision that a right declared in an estate by a preliminary decree in favour of a Hindu widow would be regarded as property and there is nothing in the context in which Section 14 occurs in the Hindu Succession Act or in the phraseology, used by the Legislature to warrant the view that such a right declared in relation to the estate of a joint family in favour of a Hindu widow is not property within the meaning of Section 14 and that it cannot become absolute by virtue of Section 14(1) of the Act. Reliance was placed in the above case on the earlier decision in Kotturuswami v. Setra VeerayyA : AIR1959SC577 where it has been held that the word 'possessed' in Section 14 is used in a broad sense and in the context means the state of owning or having in one's power. The preliminary decree declared that Khilonabai in that case was entitled to a share in the family estate and the estate being with the family of which she was a member and in joint enjoyment, would be possessed by her.
14. The learned Subordinate Judge has referred to the following passage at page 832 of N. R. Raghavachariar's Hindu Law. 4th Edn.:--
'If prior to this enactment a Hindu woman sold the property representing that she was absolutely entitled to it and it turned out that she had only qualified interest, the purchaser, on the coming into force of this Act, can call upon the woman to make good her representation or pay him damages for the loss that he may sustain by reversioners proceeding to recover the property from him. In such a case, it is possible for the widow to purchase back the property, obtain possession and again resell it to the original purchaser, in which case the latter will take the property absolutely without any fear of a claim from the reversioner later.'
The learned Subordinate Judge has referred to the above passage in support of the position that a widow by virtue of the provisions contained in the Hindu Succession Act could repurchase the limited interest conveyed by her even after the commencement of the Act and claim absolute interest in the property.
15. Mr. V. K. Thiruvenkatachari referred to the following passage at p. 424 of the Book 'Introduction to Modern Hindu Law' by Derrett (para. 674) in support of his contention that apart from the marginal cases referred to therein 'the limited estate is dead':--
'We are justified in calling the limited estate 'former' as it no longer applies at law, but only by agreement; by legacy or as a condition attached to a power of appointment, that the appointee shall take a limited estate; by award or compromise to the same effect; or by order or final decree. Today a limited estate can be created by will, or when the court incorporates in a decree a settlement between parties arrived at by arbitrators who will for a long time to come utilise the well-known method of giving property to females for a limited estate. But apart from these marginal cases the limited estate is dead.
It is important to note that when a grantor or testator wishes to limit the estate he gives to a female he is by no means confined to the Hindu woman's limited estate. Now-a-days it is becoming increasingly common for estates of very different characters to be created. We shall see that testators leave to female heirs for their lives, that is to say the characteristic 'life estate' of English law, under which alienation of the corpus for any purpose is impossible. Examples occur at Sections 754, 755. On the other hand, in Marthanda v. RamasubRamania : AIR1962Mad256 , a woman was given an estate for her life without any restraint upon alienation other than the direction that she should have no power to dispose of the property by her will. It was held that she could mortgage the estate for value (at her pleasure) and so validly charge the estate so as to bind the remainderman. In all cases it is desirable to discover whether the limited estate in question is that known to Hindu law, or one of the newer variations employed by modern testators.'
The author has pointed out in para. 676 of the same book that the'exceptions to the general abolition of the limited estate lie in the cases where the limited owner had alienated the estate or part of it improperly, so as not to bind the reversion, prior to 17th June 1956; in those cases the property was not possessed by her, the rights of the reversioners to recover the property after the cessation of her interest survive notwithstanding the Hindu Succession Act, and when that cessation happens the nearest reversioner, sought out according to the old law, will be able to recover the estate in question from the alienees or their successors in title. To this extent and in the marginal cases mentioned in paragraph 674. the limited estate is still current in India.'
16. Sri A. Sundaram Iyer has rightly urged that the opinions expressed by the above living authors cannot be treated as valid. But it should be noted that these opinions are consistent with the principles enunciated in the Supreme Court decision already referred to Sri Sundaram Iyer did not contend that Valambal would not be entitled to an absolute estate by virtue of Section 14(1) of the Succession Act, in respect of the properties covered by Ex. A. 7, if really she got a limited woman's estate under it. But it is clear from the pleadings and the judgment of the trial court that the appellant disputed the claim of the contesting respondents 1 and 2 mainly on the ground that Valambal was not in possession of the properties covered by Ex. A. 7 on the date when the Hindu Succession Act came into force. In Mangal Sing v. Rattno, AIR 1967 SC 1786, a widow who had entered into possession of land belonging to her deceased husband in 1917, but who was illegally dispossessed by the collaterals of her husband in 1954, brought a suit for possession and the suit was pending when the Hindu Succession Act came into force. The widow died in 1958 during the pendency of the suit.
The Supreme Court held that the land was 'possessed' by the widow when she died in 1958 within the meaning of Section 14(1) of the Hindu Succession Act and therefore her legal representatives must be deemed to have succeeded to those rights. The scope of the word 'possessed' in Section 14(1) of the Hindu Succession Act has been considered in the above decision and in Badri Prasad v. Kanso Devi : 2SCR95 . The three different meanings of the word 'possessed' as given in Wharton's Law Lexicon, 14th Edn at p. 777 are extracted at p. 1790 of the decision in AIR 1967 SC 1786. One is the state of owning, the second is having a thing in one's hands and the third is having a thing in one's own power. The widow in that case acquired the property of her deceased husband before the commencement of the Hindu Succession Act, but she was out of possession on the date when that Act came into force. It was urged in that case that in order that the provisions of Section 14 might apply, it would have to be established that the property was possessed by the widow at the time when the Act came into force. This contention was repelled as S. 14 covered any property possessed by a female Hindu whether acquired before or after the commencement of the Act.
The Supreme Court has pointed out that on the face of it the property acquired after the commencement of the Act by a female Hindu could not possibly be possessed by her at the commencement of the Act. It is really unnecessary to refer to instances of such cases of limited interest acquired after the Act which could become absolute by virtue of Section 14(1) of the Act. The Hindu Succession Act applies only to a Hindu dying intestate after the coming into force of the Act. If a widow succeeding to the estate of her husband alienates the property prior to the Act and her daughter as a limited owner succeeds in a suit filed by her as reversioner against the alienee, she would get a limited interest by virtue of the Hindu law of succession in force prior to the coming into force of the Hindu Succession Act and it would be enlarged into an absolute estate under Section 14(1) of the said Act. If the contingent interest created by a Hindu dying prior to the Hindu Succession Act fails and the property reverts to his estate, it may very well devolve as a limited estate on a female heir by virtue of the provisions of the Hindu Law in force prior to the coming into force of the Hindu Succession Act and such limited estates will obviously become absolute by virtue of S. 14(1) of that Act. It is unnecessary to multiply such instances and it is enough to point out that the present case is one of that kind.
17. For the foregoing reasons, we find that Valambal became absolutely entitled to the properties covered by Ex. A-7 by virtue of Section 14(1) of the Hindu Succession Act and the appellant cannot claim any right in the suit properties as reversioners to the estate of Sivachidambaram Pillai.
18. In the result the decree and judgment of the learned Subordinate Judge are confirmed and the appeal is dismissed with the costs of the contesting respondents 1 and 2, one set. The appellant should pay the court-fee due to the Government.
19. Appeal dismissed.