A. Vardarajan, J.
1. The first defendant, who-failed in both the Courts below, is the appellant. The respondents filed the suit for partition claiming one-fourth share in, the suit properties.
2. There is no dispute that the suit properties belonged originally to three brothers - Thimma Venkataraman, Thimma Ramaswami and Thimma Rangaswami. Venkataraman had two sons, Krishnaswamy and Rajaopal. The respondents (plaintiffs 1 to 3) are the sons of Krishnaswamy. Ranga swamy, the third defendant, is the son of Rajagopal. Rangaswami had two sens, Venka,tachalapathi and Venkatayyan. Saraswathi, the fourth defendant, is the widow of Venkatachalapathi. Radha, Vardhani and Sarojini, defendants 5 to 7 respectively, are the daughters of Venkatayyan. The second defendant, Nachar-ammal, is the daughter of Rangaswami.
3. The case of the respondents was that there was a partition between Krishnaswami, Rajagopal, Venkachalapathy and Venkatayyan under Exhibit A-1 dated 25th' July, 1919 in which the suit properties were left to be enjoyed by Rangaswami's wife Nagammal for her life, with a direction that they should revert to Krishnaswami, Rajagopal and Venkatachalapathy and Venkatayyan on her death, to be taken by them in equal shares. The respondents, therefore, claimed one-fourth share in the suit properties on the basis of Exhibit A-l, after the death of Nagammal on 3rd October, 1969.
4. The appellant, who claims to be thc son of Rangaswami's daughter Alamelu (who is not the daughter of Nagammal), admitted that Nagammal had obtained a limited interest to enjoy the suit properties for herself under the partition deed, Exhibit A-l, but contended that her estate had become enlarged under the provisions of the Hindu Succession Act, 1956, and that he has become the owner of those properties by virtue of the will, Exhibit B-l, which had been executed in his favour by Nagammal. Defendants 5 and 6, whose written statement was adopted by the 4th defendant, denied the will, Exhibit B-l, set up by the appellant and contended that it is a got up document. However, the will does not appear to have been seriously disputed before the Courts below and no issue has been framed regarding its genuineness. But the Courts below found that Nagammal got only a limited interest under the document, Exhibit A-1, and that Section 14(2) of the Hindu Succession Act, applied and that there was no enlargement of the right get by Nagammal under Exhibit A-l, and decreed the suit as prayed for with costs.
5. The learned Counsel for the respondents submitted before me that the will, Exhibit B-1, was not seriously disputed before the Courts below. The only point for consideration, therefore, is whether Nagamal was in possession of property which was property under Section 14 (1) of the Act and whether h r right got enlarged by the provisions of the Hindu Succession Act and the appellant became entitled to the property by virtue of the will, or whether the case is governed by Sub-section (2) of Section 14 of the Act.
Section 14 of the Hindu Succession Act, 1956, reads thus:
14 (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 a limited owner.
(2). Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any ether 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.
The Explanation to Section 14(1) makes it clear that property' in Section 14(1) includes both movable and immovable property acquired by a female Hindu at a partition or in lieu of maintenance OP arrears of maintenance.
6. Provision for the maintenance of Nagammal had been made in the present case in the partition deed, Exhibit A-1, dated 25th July, 1919 whereby Krishnaswamy, Rajagopal, Venkatachalapathy and Venkatayyan had their family properties divided and provision has been made for the enjoyment of the present suit properties by Nagammal, wife of Rangaswami, for her life with a direction that those properties should revert back to Krishnaswami, Rajagopal, Venkatachalapathy and Venkatayyan on the death of Nagammal, who had died on 3rd October 1969. Having regard to the Explanation to Section 14(1), I would have agreed with the learned Counsel for the appellan that Nagammal got a right to enjoy the suit properties in lieu of her maintenance and that the properties would be property within the meaning of Section 14(1) of the Act, and Nagammal's right had got enlarged, if there had been no precedent. But, in Thatha Qurunadham Gketti v. Smt. Thatha Navaneethamma and mother : AIR1967Mad429 one Guruviah Ghetty died about the year 1932 prior to the Hindu Women's Right to Property Act, 1937, as in the present caw, leaving his widow Thatha Muniamma and four sons. The four sons partitioned their family properties in 1946 under a deed, dated 11th December, 1946, whereby they allotcd the properties described in Schedule A to that document to their mother Thatha Muniamma for her maintenance to be enjoyed by her without powers of alienation and those properties were to be taken after her death in the manner mentioned in the deed itself. The property involved in that case was to go to her ion Venkatachalam, at per that deed, on her death. But, after the death of Venkatachalam leaving a widow, the plaintiff in that suit, his mother Thatha Muniamma conveyed that property to her other son, Gurunathan Chetti. The widow of Venkatachalam filed a suit for a declaration that the conveyance, by her mother-in-law Thatha Muniamma in favour of her son Gurunathan Chetti was invalid in law. It was contended thai the limited right of Thatha Munimma became enlarged under Section 14(1) of the Hindu Succession Act, and that Gurunadhan Chetti had become the owner by her conveyance. Natesan, J. has observed at page 458:
The first defendant in this case lost her husband prior to the Hindu Women's Right to Property Act, 1937. The only right that she then had under the law was a right to be maintained out of the family properties. She had no title and no right to share in the family properties. The sons could have contended themselves with making a regular money payment and if required charging certain properties for the maintenance amount. But when they partitioned the estate amongst themselves, they set apart property giving her a life estate pure and simple in the property, the property to revert to the sons on her death. The estate given to the widow for her maintenance was restricted to a life estate. She was not granted any powers of alienation. Her right was limited to the enjoyment of the income from the property. What she got under the partition was not the qualified estate of a Hindu female known as woman's estate or widows estate She was not even a party to the partition deed as partition could be had only between persons having pre-existing proprietary rights in the property. It follows that the estate given to the widow under the instrument of partition fell under Section 14(2) of the Act and that Section 14(1) did not operate on the estate and. make the widow a full owner. In the circumstances, any alienation by the widow cannot enure beyond her lifetime.
This decision of Natesan, J., was followed by Alagiriswami, J., in Dhcama Odayar v. Ramachandra Mudaliar : (1969)1MLJ181 . There the passage in the decision of Natesan, J., extracted above, had been extracted by the learned Judge and he has added:
In the present case also Manonmani lost her husband prior to the Hindu Women's Right to Property Act. The only right she had then was a right to be maintained out of the family properties. She had no title and no right to share in the family properties. Her brothers-in-law and father-in-law could have contented themselves with making regular money payments and if require charging a certain property for maintenance. - But when they partitioned the estate among themselves they set apart a property giving her a life-estate pure and simple, the property reverting to the sons on her death. The estate given to the widow for the maintenance was restricted to a life estate. She was not granted any powers of alienation. Her right was limited to the enjoyment of the income from the property. What the got under the partition was not the qualified estate of a Hindu female known as a widow's estate or a woman's estate. It follows that the estate given to the widow under Exhibit A-1 fell under Section 14(2) and Section 14(1) did not operate on the estate and make the widow a full owner. The fact that in the present case Manonmani was also party to the document would not make any differene to this result.
In Hussain Uduman v. Venkatackala Mudaliar and Ors. : AIR1975Mad8 , a Bench of this Court had to consider the scope of Section 14 of the Hindu Succession Act. In that caie Survey No. 60/1 and certain other properties belonged to two brothers, Viswanathan and Palaniandi. Sometime prior to his death on 18th February, 1918 Viswanathan executed a partition deed and a will whereby he bequeathed Survey No. 60/1 and certain other properties to his wife Gomathi Ammal. After his death disputes arose between Gomathi and Palaniandi, and Gomathi filed two suits to enforce the partition and will and the suits were compromised on 6th November 1920, and under the compromise decree Gomathi was to enjoy the properties for her life and thereafter they should go to Palaniandi and his heirs. Gomathi died on 8th August, 1964. The question was whether Gomathi got an interest in Survey No. 60/1, only in lieu of maintenance and it did not get enlarged under Section 14(1) of the Hindu Succession Act, I956. The learned Second Appellate Judge held, as the lower Court held in the present case, that Gomathi had only a right to maintenance and not any preexisting right to the propery Survey No. 60/1, that the property was allotted to her in lieu of maintenance for the duration of her life and that consequently Section 14(2) would apply and that there could be no enlargement of the right under Section 14(2) of the Hindu Succession Act. The learned Judges have observed at pages 277 and 278:
A perusal of the section makes it clear that Section 14(1) governs all kinds of estate 'acquired' by a female Hindu before or after the commencement of the Ac , whether by way of inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance, or by gift from any person or by her own skill or exertion or by purchase or by prescription or in any other manner whatsover, or by way of stridhana immediately before the commencement of the Act. On the other hand, Sub-section (2) of Section 14 which is in the nature of an exception to Sub-section (1) provides that nothing contained in Sub-section (1) shall apply to any property acquired by a female Hindu 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 or order or award 'prtscribe' a restricted estate in such property. In other words the intention of the Legislature was to remove the disability imposed on women by Hindu Law on the ground of sex, but not to interfere with the sanctity of contracts and grants, whereby only a restrictive estate had been deliberately conferred upon them. Sub-section (1) removes the restriction imposed by Hindu Law on the ground of sex, upon the estate held by a woman and enlarges it into an absolute estate. On the other hand, Sub-section (2) leaves intact the restriction on the estate of a woman, not imposed by law on account of her sex, but prescribed by the terms of a contract or grant. Some difficulty may arise in the application of Sub-section (2) of Section 14 to the facts of a given case.
The document, instrument, decree or award may in certain cases of its own force, create a restricted estate in property and may in certain other cases only re-state the restricted estate which the female Hindu possessed even prior to the date of the instrument, decree or award. Before applying Sub-section (2), the proper question to ask is, does the instrument or decree 'prescribe a restricted estate in the propery, or doe it merely acknowledge and recognise (and not prescribe) a pre-existing estate upon which the Hindu Law had imposed a restriction, because the holder of the estate was a woman? If before the date of the deed or the decree, she had no interest in the property and her only source of title is the deed or the decree, which confers upon her a restricted estate Sub-section (2) of Section 14 of the Act will apply, and such a restricted estate will not be enlarged into an absolute estate under Sub-section (1) of Section 14. If, on the other hand, the source of her title is independent of the instrument or decree and she held a restricted estate even prior to the date of the instrument or decree and all that the instrument or decree docs is merely to recognise the pre-existing restricted estate of the female Hindu then Sub-section (1) of Section 14 would certainly operate upon the restricted estate and expand it into an absolute one. The Supreme Court in Badrt Pershad v. Kanto Devi : 2SCR95 has observed as follows:
Sub-section (2) of Section 14 is more in the nature of proviso or an exception to Sub-section (1). It can come into operation only -if acquisiton in any of the methods indicated therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of the property.
7. In view of these decisions, I agree with the Courts below that Nagammal had no pre-existing right in the suit properties and she got the suit properties only under the partition deed, Exhibit A-1, whereby she has been given only a limited right to enjoy the properties without powers of alienation and the properties had to revert back to the four brothers on her death and that the case, therefore, falls within Section 14(2) of the Act and that the right acquired by her in these properties for the first time only under the document, Exhibit A-l, did not get enlarged under Section 14(1) of the Act.
8. The second appeal, therefore, fails and is dismissed, but under the circumstances of the case, without costs. No leave.