1. The first defendant in O. S. No. 61 of 1966 on the file of the Subordinate Judge, Chidambaram is the appellant. In order to appreciate the relevant facts in this Letters Patent appeal, a summary of events that took place long ago is necessary.
2. One Sarangapani Pillai married Arumbu Ammal and had a daughter Valliammal by name through her. Sarangapani had a brother Balakrishna by name. Under Ex. A. 1, dated 10-2-1921, Sarangapani executed an unregistered Will conferring a life estate over the suit properties in favour of his wife, Arumbu Ammal and after her death, his properties were to be divided equally between his daughter and his brother Balakrishna. The Will also provided for a contingency that if Valliammal died without leaving any issue, then Balakrishna would be entitled to the entire properties. After the death of Sarangapani Pillai, one of his creditors filed a money suit against Arumbu Ammal, Valliammal and Balakrishna. Balakrishna having been impleaded as a party to that action, he propounded the will, Ex. A-1. Ultimately, the money suit was dismissed. During the pendency or at or about that time, Arumbu Ammal and her daughter Valliammal filed a suit O. S. No. 255 of 1923 in the court of the District Munsif, Kattumannarkudi, for a declaration that Ex. A. 1 was a forgery and that the instrument would not alter the normal rights of succession to the estate of Sarangapani. In that suit, a compromise was entered into on the 24th July, 1924-Ex. A.4. Inter alia, the compromise proved that Arumbu Ammal should enjoy the properties for her life as a widow's estate without any powers of alienation and after her, Valliammal should enjoy the properties for her life equally without any powers of alienation, and if there are any male heirs to Valliammal, they will take the properties absolutely; in case, however, Valliammal does not leave any male heir, Balakrishna should take the properties absolutely. Valliammal died issuless in the year 1940 and Arumbu Ammal took the first defendant in adoption on 3-11-1947. Balakrishna died on 8-1-1963. Thereafter, under Exs. B 2 and B 3, Arumbu Ammal settled some of the properties and willed away some of the remaining properties in favour of the first defendant and died on 16-5-1966. On the death of Arumbu Ammal, the plaintiffs who are heirs of Balakrishna filed the present action claiming their entitlement to the properties as under the compromise deed Ex. A. 4 read with Ex. A.1, and questioned the legality and propriety of Arumbu Ammal's acts in having settled or testamentary disposed of the properties under Exs. B 2 and B3. Their specific contention was that the estate which was in the possession of Arumbu Ammal as a widow's estate without any contemporaneous powers of alienation did not enlarge itself into an absolute estate by reason of S. 14(1) of the Hindu Succession Act 1956.
3. This was resisted by the first defendant on various grounds amongst which the surviving contention which claims our attention is that under the compromise Ex. A. 4, Arumbu Ammal secured rights pursuant to her pre-existing right as a widow for being maintained for life from out of the estate of her husband and in consequence, such an estate vested in her and it was admittedly in her possession on the date when Central Act 30 of 1956 was passed and it automatically enlarged itself into an absolute estate and, therefore. Exs. B 2 and B.3 are valid instruments which Arumbu Ammal could execute during her lifetime.
4. Defendants 2 to 6 in the action are only tenants and we are not concerned with their rights which they claimed under the Tamil Nadu Cultivating Tenants Protection Act.
5. On the above admitted facts, both the learned trial Judge as well as the first appellate court, namely, the District Judge of South Arcot at Cuddalore, affirmed that the widow's estate secured by Arumbu Ammal under Ex. A.4 was a limited estate which became enlarged into an absolute estate by virtue of S. 14(1) of Act 30 of 1956 and in that view, upheld both the settlement deed Ex. B-2 and that Will Ex. B-3, executed by Arumbu Ammal. They confirmed the title of the first defendant in the suit properties.
6. On a second appeal to this court, Mohan J. was of the view that what Arumbu Ammal secured under Ex. A. 4, was not in recognition of any pre-existing right but was the resultant of the creation of a new right and as the source of title is traceable for the first time to Ex. A.4 alone, Arumbu Ammal cannot claim the benefits of S. 14(1) of the Hindu Succession Act; but on the other hand, her interest in the suit properties became extinguished by her death under S. 14(2) of the Act and, therefore, the alienations made by her either by way of settlement or under Will are non set and are to be ignored. In that sense, the learned Judge allowed the appeal. It is as against this that the present Letters Patent appeal has been filed.
7. Mr. M.R. Narayanaswami, learned counsel for the appellant, after taking us through the relevant provisions of the Hindu Succession Act, contends that the rights secured by Arumbu Ammal under Ex. A are in recognition of a pre-existing right in her a female member of a Hindu family and not created inter vivos for the first time by reason of the compromise arrangement under Ex. A. 4.
8. Relying upon the latest pronouncement of the Supreme Court in Thulasamma v. Sesha Reddi AIR 1977 SC 1944 in which the question has been exhaustively considered, the learned counsel would seek for a reversal of the judgment of the single Judge of this court.
9. Mr. T. R. Ramachandra, contending contra, by relying upon the literal explanation by the clauses in Ex. A-4, which in turn refer to the Will Ex. A.1, and also to the widow's estate would strenuously contend that the learned Judge was right in having applied Section 14(2) of the Hindu Succession Act, and in having rejected the plea that there is an enlargement of the limited estate held by Arumbu Ammal by reason of Section 14(1) of the Act.
10. We have already seen the terms of the disposition under the Will Ex. A. 1. It gave a life estate to Arumbu Ammal and after her life, the daughter Valliammal, and brother Balakrishna were to take over the estate as absolute owners in equal moiety; but in the event of Valliammal dying without any male issue the entire properties would devolve absolutely on Balakrishna. Under the compromise Ex. A.4 which has been analysed by the learned Judge, the following state of affairs spring therefrom-(1) The compromise is in accordance with the provisions of the Will since the compromise makes a reference to it and says that it is in pursuance thereof. (2) The compromise conferred on Arumbu a life estate without powers of alienation. (3) Balakrishna relinquished his rights made available under the Will after the lifetime of Arumbu. (4) Valliammal is made a remainder-man after the death of her mother but without any powers of alienation. (5) In the event of the daughter dying without male issue, Balakrishna would take the properties absolutely.
11. From a resume' of the above recitals, it is clear that Ex. A. 4 makes a significant departure from the recitals in the Will though it purports to be in consonance with it. Under the Will, Arumbu was given a life estate and after her, the daughter, Valliammal and brother Balakrishna were conferred with absolute rights. Under the compromise, however, this provision is given a go-by. Two life estates are created, one in favour of Arumbu Ammal and other in favour of Valliammal after the death of Arumbu Ammal. Under Ex. A.1, no provisions was made for the relinquishment of the rights of Balakrishna. This is provided for in Ex. A. 4 Under Ex. A.1, Valliammal gets an absolute estate over a moiety of the properties after the lifetime of Arumbu, but whereas under Ex. A.4, Valliammal is only given a limited estate without powers of alienation. It only conferred on her the rights of enjoyment of properties without any powers of alienation. The contingency of Balakrishna getting a right over the entirety of the properties in the absence of a male issue for Valliammal is common in both. We are not here called upon to consider the feasibility and enforceability of a provision which would restrict an earlier conferment of an absolute estate by providing a later restriction thereto. When once an absolute estate as of right is created under an instrument and it takes effect on a certain event, then normally a dent on the quality of that right by a latterly imposed restriction in the very same instrument would not ordinarily be effective in the eye of law. We are not, however, resting our contention on these observations. We have pointed out that even though Ex. A. 4 purports to be in consonance with or a follow up of Ex. A. 1, it does not appear to be so as there has been a complete over-hauling of the nature of the dispositions, of the content of entitlements during the period at which such entitlements could be claimed by the parties to the compromise Ex. A. 4.
12. If, therefore, Ex. A.4 is a distinct deed arrived at between the members of a Hindu family under which a widow's established right as such widow, to maintenance for life and enjoyment for life of her husband's properties is recognised by a certain methodology or arrangement, then the question that immediately arises for consideration is whether the conferment of such a right of enjoyment for life, otherwise known as a limited estate or a widow's estate could be held to be a right created for the first time in favour of Arumbu or is it a right conferred on her in recognition of pre-existing right.
13. Before the law of inheritance for Hindus was codified under Act 30 of 1956, we had the Hindu Women's Right to Property Act. 1937, wherein also the legitimate rights of the female members of a Hindu family were given momentous recognition. Such rights in the march of law thought of by our Legislature ever since 1937, which culminated in the renaissance in the mater of succession under the Hindu Succession Act are all pointers to the beneficial intention and object of our Parliament that the rights of a female ought not to he lightly brushed aside on technical and a priori considerations but should be given due recognition in accordance with the intentions of law coupled with the forcible and well-intentioned mandates by our ancient Hindu commentators while dealing with a Hindu female.
14. If the background of such strides made in the matter of the improvement of the quality of rights of a female in a Hindu family is borne in mind, then it is not difficult to analyse and understand the import of Ex. A. 4. We have already seen that Ex. A.4, though prima facie purports to follow Ex. A. 1, it does not. It makes a marked departure from the recitals in Ex. A.1, and creates as it were, new entitlements not thought of under Ex. A.1. It is, however, pertinent to point out that under Ex. A. 1, Arumbu Ammal is given a widow's estate over her husband's properties. Could this arrangement referred to in Ex. A.4 be taken as the source of title of Arumbu Ammal to the properties or should it in the conspectus of events and in the circumstances of the case be taken as the recognition of a pre-existing right ?
15. What is a widow's estate? It is not an estate for life, or in tail, or in fee, referred to in British Jurisprudence. Having regard to the sacramental bondage which would always knit a marriage tie amongst Hindus, a widow is expected to preserve unsullied the bed of her lord, and abide with her venerable protector to enjoy with moderation the property until her death and allow the heirs to take it after her (Katyayana). Such an inherence in the quality of her right was thought of by the ancient law givers since it was always the objective of the personal law of Hindus that a widow who had no male child should not be given an absolute and complete title over her husband's properties after her death. The Privy Council in Janaki Ammal v. Narayanasami 43 Ind Appellant 207 : (AIR 1916 PC 117) observes :-
"Her (widow's) rights is of the nature of a right of property, her position is that of owner, her powers in that character are however limited."
In another case, the learned Law Lords while dealing with the same aspect again reiterated the position and stated :-
"The whole estate is for the time vested in her absolutely for some purposes, though in some respects for only a qualified interest."
The interdict of alienation of such properties in the hands of a widow is not absolute. She has powers of alienation. She could alienate for religious purposes. She could part with the corpus for performing pilgrimages and other pious acts conducive to the spiritual welfare of her husband provided the expenditure is reasonable. She could expend for her own maintenance and for the marriage expenses of her female heirs. Thus, on serious and sufficient grounds which could compendiously come within the meaning of the expression 'necessity'. The widow has the right to alienate the properties in her possession and which were being enjoyed by her as a widow's estate.
16. So long as she is alive, no one has any vested interest in the succession. Thus, a widow's estate of a woman's estate is a special and a qualified estate which recognises her absolute right over the properties for her life subject, however, to the restrictions contemplated in the personal law and her power of alienation.
17. In the light of the meaning which has always been attributed to the technical expression 'widow's estate or woman's estate' the mere fact that under Ex. A. 4, such a right to which Arumbu was entitled to was conferred on her by reason of a mutual arrangement or a compromise would not mean that such an estate was conferred on her for the first time under Ex. A. 4 or created primarily thereunder. In our view, it is a reiteration and a declaration of a pre-existing right of a Hindu widow to succeed to her husband as a widow to take therein a widow's estate subject to the limitation and restriction referred to above.
18. In an illuminating judgment recently given by the Supreme Court in which Fazal Ali J. spoke for the Bench, the position is made very clear. It is reported in V. Tulasamma v. Sesha Reddi, AIR 1977 SC 1944. No doubt, in that case, the grant was in lieu of maintenance. This right of maintenance when looked at from the ancient concept from which sprang the significance of the divine tie of marriage, it is easy to conclude that the wife is said to be a half of the husband. Even our Gods are propitiated by that name for example, Arthanareeswara. The learned Judge quoted Colebrooke and the well-known principle that under the Hindu-law, the husband has got a personal obligation to maintain his wife and if her is possessed of properties, then his wife is entitled as of right to be maintained out of such properties. The claim of a Hindu widow to be maintained is not an empty formality which is to be exercised as a matter of concession or indulgence, grace or gratis or generosity but is a valuable spiritual and moral right which flows from the spiritual and temporal relationship of the husband and wife. As the wife is in a sense a part of the body of her husband, she become co-owner of the property of her husband though in a subordinate sense.
19. After careful consideration and detailed analysis of the case law and the Sastraic Hindu Law, Fazal Ali J. in the above Supreme Court decision came to the following conclusions-(a) though the widow's right to maintenance is not a right to property but is undoubtedly a pre-existing right in property i.e., it is a jus and rem not jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the property; and (b) that the right to maintenance is undoubtedly a pre-existing right, which existed in the Hindu Law long before the passing of the Act of 1937 or the Act of 1946, and is, therefore, a pre-existing right.
20. The learned Judge went on to say (at p. 1966 of AIR 1977 SC):-
"37. In the light of the above decisions of this court, the following principles appear to be clear-
(1) That the provisions of S. 14 of the 1956 Act must be liberally construed in order to advance the object of the Act which is to enlarge the limited interest possessed by a Hindu widow which was in consonance with the changing temper of times;
(2) It is manifestly clear that sub-sec. (2) of S. 14 does not refer to any transfer which merely recognises a pre-existing right without creating or conferring a new title on the widow. This was clearly held by this court in Badri Pershad's case,
(3) that the Act of 1956 has made revolutionary and far-reaching changes in the Hindu society and every attempt should be made to carry out the spirit of the Act which has undoubtedly supplied a long felt need and tried to do away with the invidious distinction between a Hindu male and female in matters of intestate succession ;
(4) that sub-sec. (2) of S. 14 is merely a proviso to sub-sec. (1) of S. 14, and has to be interpreted as a proviso and not in a manner so as to destroy the effect of the main provision.............
44. Thus the following propositions emerge from a detailed discussion of the case :-
(1) that the widow's claim to maintenance is undoubtedly a tangible right though not an absolute right to property so as to become a fresh source of title. The claim for maintenance can, however, be made a charge on the joint family properties, and even if the properties are sold with the notice of the said charge, the sold properties will be burdened with the claim for maintenance;
(2) that by virtue of the Hindu Women's rights to Property Act 1937, the claim of the widow to maintenance has been crystallized into a full-fledged right and any property allotted to her in lieu of maintenance become property to which she has a limited interest which by virtue of the provisions of Act of 1956 is enlarged into an absolute title.
(3) Section 14(2) applies only to cases where grant is not in lieu of maintenance or in recognition of pre-existing rights but confers a fresh right or title for the first time and while conferring the said title certain restrictions are placed by the grant or transfer. Where, however, the grant is merely in recognition or in implementation of a re-existing right to claim maintenance, the case falls beyond the purview of Section. 14(2) and comes squarely within the explanation to Section 14(1)................."
21 The Supreme Court in the above case approved in toto the ratio of the Bombay High Court in B. B. Patil v. Gangabai, . That was a case where an arbitrator passed an award which resulted in a decree under the Arbitration Act. It was pursuant to the award the widow secured certain properties of her husband for life and which were intended for her maintenance. The widow continued to be in possession of those properties till February 25, 1967. The question arose as to what was the nature of the right which the widow obtained in those circumstances. The Supreme Court approved of the following passage in the Bombay decision (at p. 19) :-
"................... In other words, sub-sec. (1) read with this explanation provides that any property, however acquired and in possession of a Hindu female after the commencement of the Act shall be held by her as a full owner in all cases where she formerly held merely limited ownership............ By this enactment (Act of 1956), her rights are enlarged and wherever under the Hindu Law she would merely obtain limited ownership she would, after the commencement of the Act, obtain full ownership."
Section 14(1) and (2) runs as follows :-
"......... (1) 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 limited owner;
Explanation :-In this sub-section. 'Property' includes both moveable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever; and also such property held by her as stridhana immediately before the commencement of this Act.
(2) 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 prescribe a restricted estate in such property."
It is by now well-established that Section. 14(2) is an exception to Section 14(1). Under Section 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 an 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 other manner whatsoever.
22. The acid test, therefore, is to find whether under a given instrument, the title is created in the widow for the first time or the entitlement in her is merely a reiteration of a right which she possessed already under the Hindu Law. The fact that under the compromise Ex. A. 4 she was given a widow's estate does not improve maters because she had that right and she could proclaim that right as a pre-existing right. In all fairness and having regard to the beneficial legislation introduced 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 dole 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 widow's estate subject to the restriction ordinarily annexed thereto. No doubt, the phrase 'in any other manner whatsoever' referred to in the Explanation to Section 14(1) cannot be made elastic, so as to render nugatory sub-sec. (2) of Section 14. Each case has to be decided on its own merits. If it could be clinchingly found that the vesting is a s result of a contract and not in due recognition of or in due obeisance to a pre-existing right, then such a contract might in such peculiar circumstances be viewed 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 was created in the widow. The use of the words 'widow's 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 (sic) (flow?) from the arrangement entered into between the parties but it was only in recognition of a pre-existing right, then the ration of the decision of the Supreme Court in V. Tulasamma 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 Section 14(1), she shall hold it as full owner thereof and not as a limited owner. We are unable, therefore, to agree with the conclusion of the learned Judge in the second appeal. We set aside the judgment of this court in S. A. No. 814 of 1972 and restore that of the appellate court which in turn affirmed that of the trial court. The suit is, therefore, dismissed. This appeal is, therefore allowed with costs.
23. Appeal allowed.