K.S. Ramamurti, J.
1. These two second appeals arise out of two suits tried together and disposed of by a common judgment in the trial Court and by a common judgment by the lower appellate Court. The only point which survives for decision relates to the question whether the first plaintiff is the absolute owner of the suit properties or in any event whether her rights in the properties have become enlarged into an absolute estate by reason of Section 14(1) of the Hindu Succession Act (XXX of 1956) (hereinafter referred to as the Act).
2. The facts of the case are as follows: (Note : For the sake of convenience, the parties are referred to in the judgment as they are arrayed in the suit O.S. No. 366 of 1963). The first plaintiff is Nallammal, and her husband Palanisami Gounder and one Nallasamy Gounder (senior) were step-brothers. The first plaintiff's husband died in 1936, leaving behind him his widow, Nallammal (first plaintiff) and a child called Nallaswamy Gounder (junior) who died in 1942. Nallasamy senior died on nth March, 1949, leaving behind him his widow, the first defendant, and two sons (defendants 2 and 3). The second plaintiff is the son-in-law of the first plaintiff, and he claims to be a lessee from the first plaintiff. The third plaintiff is the settlee from the first plaintiff. The suit O.S. No. 366 of 1963 was filed by all the plaintiffs and the second suit O.S. No. 813 of 1962 by the lessee.
3. It is common ground that Palanisami Gounder and his brother Nallasamy Gounder, senior were members of a joint family throughout. As Nallammal claimed that there was a division in the family, Nallasamy Gounder, senior was, obliged to take proceedings O.S. No. 143 of 1942 against Nallammal, in which it was held (negativing the contentions of Nallammal) that there was no division in status between Palanisami and Nallasamy senior and that the entire family properties survived to Nallasamy senior. Exhibit A-7, dated 22nd February 1945 is the judgment of the trial Court in O.S. No. 143 of 1942 and Exhibit B-5 is the judgment dated 17th March, 1946 in A.S. No. 132 of 1945, Sub-Court, Trichy, on appeal therefrom.
4. The plaintiffs' case is that thereafter there was a panchayat in the family in 1949, at which the first plaintiffs' claim for maintenance and residence was settled and the suit properties, of an extent of 40 acres of a total of 160 acres owned by the family, were given by defendants 1 to 3 to the first plaintiff absolutely in full quit of her claims for maintenance and residence. As disputes arose between the parties, the plaintiffs filed the suit for a permanent injunction or in the alternative for possession, on the ground that the properties were given to the first plaintiff absolutely under the panchayat or in any event she became an absolute owner under Section 14(1) of the Act. The suit was resisted by the defendants on the ground, inter alia, that the properties were given to the first plaintiff only for her maintenance with a stipulation that they should be enjoyed by her during her lifetime without any powers of alienation, with the result that Section 14(2) of the Act alone would apply and that in any event inasmuch as the first plaintiff had surrendered the properties to the second defendant, agreeing to take Rs. 500 per annum towards her maintenance Section 14(1) of the Act would not apply as she was not in possession of the properties when the Act came into force.
5. Both the Courts did not accept the case of the defendants that the first plaintiff surrendered possession of the property agreeing to take Rs. 500 per year towards maintenance. This case of the defendants rested merely upon the interested testimony of the second defendant and was not even put to the plaintiff in the course of her cross-examination. Both the Courts were totally unimpressed with the evidence adduced by the defendants; they accepted the plaintiff's evidence that there was no such surrender. The point raised is a pure question of fact and I see no ground for interference in second appeal. Learned Counsel for the appellants rightly did not advance any argument that the first plaintiff surrendered possession of the property and therefore was not in possession at the time when the Act came into force. Thus, it has to be held that the first plaintiff has satisfied the condition that she was in possession of the property at the time when the Act came into force.
6. As regards the panchayat of the year 1949, the plaintiffs claimed that it was oral; but the defendants contended that it was reduced to writing and the original was handed over to the first plaintiff. The Courts below have on the evidence held that the agreement was not reduced to writing, but was only oral. (Vide paragraph 9 of the judgment of the trial Court and paragraph 17 of the judgment of the lower appellate Court). No argument was advanced before me that the agreement was reduced to writing and was given to the first plaintiff. The argument before me proceeded on the footing that the agreement was oral.
7. On the other point whether there was any special stipulation or bargain about the manner in which the first plaintiff was to enjoy the property, the Courts below did not accept the case of either of the parties, that there was any specific bargain or stipulation either way, i.e., that the properties were given to the first plaintiff absolutely or the properties were given to the first plaintiff with the express stipulation that she should have no powers of alienation; but should merely enjoy the same during her life time. The Courts below did not accept the argument of the plaintiffs that the lease Exhibits A-1 to A-3 showed that the properties were given to the first plaintiff absolutely merely because in the lease deeds the properties were referred to as the properties given to the first plaintiff towards her maintenance in pursuance of the family panchayat dated 25th October, 1949. The Courts below rightly took the view that if the properties has been given to the first plaintiff absolutely, it would have been so mentioned in Exhibits A-1 to A-3. Equally, the Courts below took the view that under the law as it then stood in 1949, a widow's estate could not be alienated by the widow and there was no occasion therefore for the defendants to specifically bargain for any stipulation of Condition that the first plaintiff should not have powers of alienation. In other words, the Courts below took the view that when the then existing law of 1949 imposed restrictions on the powers of alienation by a widow, there was no need for the defendants to specially bargain and the defendants would not therefore have bargained, for any such stipulation. The result was that the Courts below did not accept the case of either of the parties, but held that the properties were simply given to the first plaintiff towards her maintenance claim without any express stipulation or condition attached thereto either way. The same argument was repeated before me by Counsel appearing on both the sides. The point raised is a pure question of fact and I do not find any ground made out for interference with that finding. I am of the further view that the Courts below have drawn the correct inference that there was no special stipulation or bargain and that the properties were simply given to the first plaintiff towards her claim for maintenance.
8. From the foregoing it will be seen that the controversy has narrowed down to the only question whether the rights of the first plaintiff became enlarged into an absolute estate by reason of Section 14(1) of the Act, or whether it is a restricted estate within the meaning of Section 14(2) of the Act.
9. Mr. T.R. Ramachandran, learned Counsel for the appellant, contended that in pursuance of the arrangement of 1949 Nallammal was put in possession of the property merely to enjoy the income or the usufruct from the land, that no interest in the land as such was created in her favour and that in any event Section 14(2) would govern the case on the ground that before the arrangement the plaintiff had no right to the property, her only right was to get maintenance either in cash or in kind from the defendants and that it was only under and from the date of the arrangement that the plaintiff acquired any right to the property and that too with restricted rights over the same without any powers of alienation. The substance of the argument is that the plaintiff had no right to the property before the arrangement but acquired such a, right only in pursuance of the arrangement which further prescribed a restricted estate in the property within the meaning of Section 14(2). In support of this contention learned Counsel relied upon the recent decisions of this Court rendered by Natesan, J., and Alagiriswami J., following a prior decision of Veeraswmi J., (as he then was). He also relied upon some of the decisions of the other High Courts in support of this contention.
10. The argument of Mr. Sundaram Iyer, learned Counsel for the respondent, was that Nallammal had a claim for maintenance enforceable against all the joint family properties in the hands of the defendants, that it was not a mere personal claim but it was founded upon a right against the properties, though that right could be satisfied by the defendants giving maintenance either in cash or in kind, and that what really, took place was the settlement of that right for maintenance. He urged that it was in effect a substitution of one right for another and cannot, therefore, be said that the property was acquired within the meaning, of Section 14(2). He also urged that, for Section 14(2) to apply, the first plaintiff should have no manner of right whatever; but if the arrangement is in recognition or substitution of another right, the condition of Section 14(2) is not satisfied. He also urged that the arrangement should itself prescribe a restricted estate and when the properties were given for maintenance without any particular stipulation, the essential condition in Section 14(2) 'prescribed a restricted estate in such property' cannot be said to be satisfied. Mr. Sundaram Iyer further contended that for Section 14(2) to apply, the arrangement should be evidenced by a document containing the terms prescribing a restricted estate and if the arrangement is oral, Section 14(2) would not apply.
11. There is a wealth of case law on the true interpretation of Section 14(1), the explanation thereto, and Section 14(2). Certain aspects thereof are now well settled and beyond controversy in view of the recent decisions of the Supreme Court. Section 14 runs as follows:
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.
Explanation. - In this sub-section, 'property' includes both movable 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 any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in Sub-section (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.
12. While interpreting the provisions of this Act, Courts should bear in mind, the object of this Act, which is ameliorative in character, is to carry out important social reforms involving far reaching' changes deliberately introduced, to confer distinctly better rights on females and to secure them equal treatment with males. Referring to this Act, Shah, J. (as he then was) observed as follows in Munnalal v. Rajkumar : AIR1962SC1493 .
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 inherent 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.
13. In interpreting the provisions of a statute it is the duty of Courts to avoid; an interpretation which would defeat the very object of the statute unless the language used in the statute is quite clear, unambiguous and leaves no option to the Court to interpret the Act in a manner totally destructive of the avowed object of the Legislature. Vide S. Asia Industries v. Sarup Singh : 3SCR829 :
14. As this rule of interpretation of statutes is well settled, it is sufficient to extract the statement of law by Shah, J, (as he then was) in the decision reported in New India Sugar Mills v. Commissioner, Sales Tax : AIR1963SC1207 :
It is a recognised rule of interpretation of statutes that the expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the Legislature. If an expression is susceptible of a narrow or technical meaning, as well as a popular meaning the Court would be justified in assuming that the Legislature used the expression in the sense which would carry out its object and reject that which renders the exercise of its powers invalid. In interpretating a statute the Court cannot ignore its aim and object.
15. It is now settled law that the language employed in Section 14(1) read with the Explanation is very wide and general, and that the use of the word 'any' in Section 14(1) is of general import and excludes limitation or qualification and is all inclusive. It negatives qualification and affirms wide generality. It is equally well settled that Sub-section (2) is in the nature of a proviso or an exception to Section 14(1) and is not by itself a substantive provision, or operating in the same field as covered by Section 14(1). The Supreme Court in a recent decision in Badri Pershad v. Kanso Devi : 2SCR95 , has rejected the argument that the Court must first look into Sub-section (2) and if the case does not fall within its ambit, then alone Sub-section (1) will become applicable. As Sub-section (2) is a proviso, Section 14(1) will have its overriding effect and full operation unless a case is brought strictly within the terms of Sub-section (2). Vide P. Manavala Chetty v. P. Ramanujam Chetty : (1971)1MLJ127 .
16. While enacting Section 14(1) the Legislature was well aware that Hindu females were in possession of properties in pursuance of a variety of arrangements and transactions mentioned in the Explanation is couched in such wide language with the avowed object of making 'the limited owner' an absolute owner of those properties. The purpose of the Explanation is to statutorily give, a very wide and expanded meaning to the word 'property' and the word 'acquired.' While emphasising this wide scope of the Explanation, Shah, J. (as he then was) had pointed out in Munnalal v. Rajkumar : AIR1962SC1493 , that by the Explanation the Legislature has given to the expression 'property' the widest connotation. Again, in Rani Bai v. Yadunandan : 3SCR789 , while adverting to the wide scope of the Explanation Grover, J., had pointed out that
It is clear from the provisions of the Explanation appearing in Section 14 that a situation was contemplated where a female Hindu could be in possession of joint family properties in lieu of maintenance.
17. One other important aspect to be borne in mind is that the object inter acting Section 14(1) was to confer an absolute estate over properties of which a female Hindu was a 'limited owner.' If the Hindu female was already an absolute owner, there is no need for Section 14(1) at all. In other words, if in a particular situation the Court finds that a Hindu female is not in possession as absolute owner but is in possession as limited owner without powers of alienation, the Court should apply Section 14(1) so as to make it an absolute estate. The limited nature of the estate possessed by the Hindu female at the time the Act came into force, should not be stressed to the detriment of or as against the limited owner, because the avowed object of the Act is to make her 'an absolute owner unlimited in point of user and duration and uninhibited in point of disposition.' The then existing limited nature of the estate is just the situation for applying Section 14(1) and is certainly not a reason for eliminating Section 14(1). In other words, to harp upon the limited nature of the estate and make it a ground to rule out Section 14(1) would be completely defeating the purpose of the Act and perpetuate the very mischief which the Act sought to remedy. Whenever there is a legislation for bringing about social reforms on personal law, there is bound to be curtailment or extinguishment of rights present or future, (vested remainder, spes successions, etc.) of persons affected by the legislation. That is no ground for giving a restricted meaning to the provisions of the statute which is deliberately couched in very wide language. From the foregoing, it will be clear that the proper perspective of approach is to regard that property given for maintenance and held by the Hindu female as a limited owner, becomes an absolute estate, and that it is for the party, who contends otherwise, to establish that the case comes under the Proviso in Section 14(2). Obviously, Sections 14(1) and 14(2) cannot cover the same field and cases or situations governed by Section 14(2) are only those carved out from the generality of cases covered by Section 14(1). To assume that Sub-section (2) is at once attracted because the Hindu female was in possession of the property as a limited owner with no powers of alienation, would be a perverse misreading of the section.
Apart from the Hindu female being limited owner, there are certain important conditions to be satisfied as laid down in Sub-section (2) when alone Section 14(1) will cease to apply.
18. The law as regards interpretation of a proviso or an exception is well-settled. Courts should not so construe a proviso as to attribute to the Legislature an intention 'to give with one hand and take with another.' A sincere attempt should be made to reconcile the enacting clause and the proviso and to avoid repugnancy between the two. Vide observations of Subba Rao, J., as he then was, in Tahsildar Singh and Anr. v. The State of Uttar Pradesh : (1959)2MLJ201 , The proviso cannot be interpreted in a manner which would defeat the main provision, i.e., to exclude by implication, what the enactment expressly says would be covered by the main provision. Reference may also be made to the observations of the Supreme; Court in The Commissioner of Income-tax Madras v. The Ajax Products, Ltd. : 55ITR741(SC) at 1363, where the Supreme Court has pointed out that a proviso must be considered in relation, to the principal matter to which it standi as a proviso, that it cannot be divorced from the provision to which it stands as a proviso, but should be construed harmoniously with the main provision.
19. With these general remarks, I shall now consider the crucial point in the case whether Nallammal became an. absolute owner of the properties Under Section 14(1) or her estate is a restricted one within the meaning of Section 14(2). No evidence has been adduced by either of the parties as to the circumstances, existing in 1949, about the nature and quality of the lands (whether dry or, wet) allotted to Nallammal, the extent and value of lands and other properties owned and retained by the joint family, the income that would accrue from the properties allotted to Nallammal, the main, source of irrigation for the lands, what kind of crop can be raised in the lands etc., so as to enable the Court to ascertain, the proportion of the properties allotted to Nallammal both in value, extent and income when compared to the entirety of the joint family properties. Counsel on, both sides agreed that the statement in. the judgment of the trial Court that the properties allotted to the plaintiff were worth about Rs. 7,000, is not supported, by any evidence and it is just a casual observation. All that is known is that 40 acres out of a total extent of 160 acres-owned by the joint family were given to-Nallammal towards maintenance under an oral arrangement and without any express stipulation or condition about the nature of the estate, whether absolute or restricted.
20. As observed already, Section 14(1) is immediately attracted because the Explanation in unambiguous terms includes 'property acquired in lieu of maintenance.' It is for the defendants, to establish that the case is governed by Section 14(2). It is now settled law that the property must be acquired for the first time without any pre-existing right in any one of the several modes specified in Section 14(2), in the sense that arrangement must be the very source or the foundation of the right of a Hindu female, and the arrangement itself must 'prescribe a restricted estate.' There should be a distinct bargain or stipulation restricting the enjoyment of the property. That both the conditions are essential and are clearly apparent in Sub-section 14(2), is quite clear, and settled law as laid down by all the Courts of the land including the Supreme Court. (It is is unnecessary to refer to the wealth of case-law on these two aspects).
21. Besides these two conditions, some of the decisions have taken the view that for Section 14(2) to apply the mode of acquisition or arrangement under which the properties are acquired, must be in Writing, and that if it is oral, Section 14(2) will not apply. There is some divergence of judicial opinion on this requirement, to which I shall refer later. At this stage itself, I may mention that, in my view, on a proper interpretation of Section 14(2) in the light of the precise language employed therein, the modes of acquisition mentioned in Section 14(2) must be in writing and if it is oral, Section 14(2) would not apply.
22. The fourth condition on which judicial opinion is almost uniform (without much of a divergence) is that Section 14(2) would apply only to the 'modes' of acquisition specified therein or other modes of acquisition ejusdem generis and will not apply to inheritance, partition and maintenance arrangement.
23. The rationale underlying these decisions is that the Legislature took note of the fact that Hindu females were in possession of property acquired by inheritance or partition or in lieu of maintenance, besides the other modes indicated in the Explanation, and that the intention of the Legislature was to exclude and make Sub-section (2) inapplicable to properties acquired under inheritance, partition or in lieu of maintenance, as otherwise, the object of the legislation would be defeated. What is carved out and covered by the proviso or the exception indicated in Section 14(2) is only the modes expressly mentioned in Sub-section (2) and arrangement ejusdem generis. Some of the decisions of this Court and other Courts, while considering the question whether a particular maintenance arrangement would be governed by Section 14(1), or (2), have not adverted to this restrictive operation of Sub-section (2), i.e. the object of the Legislature in delibertely excluding the 'modes' of inheritance, partition and maintenance out of the purview of Sub-section (2).
24. I shall first dispose of the point as to whether Section 14(2) would apply to property acquired in lieu of maintenance.
25. The starting point of discussion is, the decision of the Calcutta High Court in Sasadhar Chandra Das v. Sm. Tara Sundari Dasi : AIR1962Cal438 . In that case a Hindu female was in possession in pursuance of a decree passed in a suit for partition, and it was held that under Sub-section (1) she became the absolute owner. In holding that Sub-section (2) would not apply, it was held (a) that it was not a case of a fresh acquisition, but a case of mere recognition of undoubted pre-existing; rights; (b) Section 14(2) would not apply to properties acquired on partition and: that the 'other instrument' in Sub-section (2) should be read ejusdem generis with the other modes specified in the earlier portion of Sub-section (2). The following observations of Mallick, J. at pages 439 and 440 may be extracted as the same have been referred to and followed with, approval in all the subsequent decisions, of various High Courts:
In Sub-section (2) the illustration or acquisition given is acquisition by way of 'gift' or 'devise'. It is important to note that while in the Explanation-to Sub-section (1) specific reference is made to properties allotted to the female Hindu on partition or in lieu of maintenance so that she may acquire absolute title therein, there is no such specific reference in Sub-section (2). I apprehend that the Legislature realised that inclusion of such properties under Sub-section (2) would make Sub-section (1) inapplicable to all cases of pre-Act partitions. Partition of joint family property worth the name must be evidenced either by deed of partition or a decree of a Court in a partition suit. The property allotted to a female Hindu on such partition must necessarily be a restricted estate as prescribed by the Hindu Law. It follows that if the Legislature intended that property allotted to a female Hindu on partition or in lieu of maintenance be treated on the same footing as 'gift' or 'devise' in Sub-section (2) then the whole effect of Sub-section (1) would be destroyed in respect to properties which were partitioned prior to the Act either privately by a deed or by Court in a partition suit. The section would, in that event, be for all practical purposes prospective in character.
26. The next case to be referred to is the case reported in Rangaswami Naicker v. Chinnammal : AIR1964Mad387 , a Bench decision of Rama-chandra Iyer, G.J. and myself. In that case the last full owner died in 1951 leaving behind his widow, three daughters and a grandson (a son's son). By reason of the Act of 1937 the widow became entitled to a half share and as disputes arose, she filed a suit in 1952 for an injunction restraining the grandson from interfering with her possession. That suit was compromised and the terms of the written compromise provided that the widow will be entitled to a half share in the properties of the husband, with an important condition (clause No. 9) that on the death of the widow the grandson will be entitled to the widow's half share of the properties. Long afterwards the Act of 1956 came into force and in 1957 the widow gave her share in the properties to her daughters. The question was whether the widow became an absolute owner under Section 14(1) or it was a restricted estate under Section 14(2). The Bench held that the modes of acquisition specified in the Explanation to Section 14(1) are comprehensive and unlimited, while the modes of acquisition enumerated in Sub-section (2) are specified and delimited. First, dealing with Sub-section (2) the Bench observed that it is an exception to Section 14(1) and should therefore be strictly construed. It further held that Section 14(2) would apply only to the modes of acquisition mentioned or ejusdem generis with the categories referred to in Section 14(2) and that the words 'other instrument' must be held to signify not anything widely differing in character but something allied to documents set out earlier, i.e., the words 'other instrument' should be read ejusdem generis with the categories of documents referred to earlier, and that in this view an acquisition under an Act of Parliament, i.e., the Hindu Women's Right to Property Act of 1937, would not come under Section 14(2).
27. I may next refer to the Bench decision of the Orissa High Court in Reghunath Sahu v. Bhimsen Naick : AIR1965Ori59 , which followed and applied the principle of the Bench decision of this Court referred above. In that case a suit was filed by the widow of a predeceased coparcener of a joint family to enforce her rights under the Act of 1937 and there was a compromise under which the widow, amongst other things, was allotted some lands to be enjoyed by her during her lifetime. The compromise contained the stipulation that she shall not transfer her interest in the lands in respect of which she was given a life interest. After the Act of 1956 came into force, disputes arose between the parties on the question whether the widow became an absolute owner in respect of the properties allotted to her for her lifetime. On the first point, the Bench held that the property was not acquired within the meaning of Section 14(2) because, even before the compromise, the widow had acquired, title from inheritance from her husband and that the compromise merely declared and dealt with her pre-existing rights. That is one ground on which Section 14(2) was held inapplicable. The Bench also held that Section 14(2) would not apply to properties given to the Hindu female either in partition or in lieu of maintenance. It was observed at pages 60 and 61 as follows:
In Sub-section (2) the illustration of acquisition given is acquisition by way of 'gift' or 'devise.' It is to be noticed that while in the Explanation to Sub-section (1) specific reference is made to properties allotted to the female Hindu on partition or in lieu of maintenance so that she may acquire absolute title therein there is no such specific reference in Sub-section (2). Partition of joint family property must be evidenced either by a deed of partition or by a decree of a Court in the partition suit as in the present case. The property allotted to a female Hindu on such partition must necessarily be a restricted estate as prescribed by Hindu Law. It follows that if the Legislature intended that the property allotted to a female Hindu on partition or in lieu of maintenance be treated on the same footing as 'gift' or 'devise' in Sub-section (2) then the whole of the Sub-section (1) would be detroyed in respect of properties which were partitioned prior to the Act either privately by a deed or by Court in a partition suit. The words 'any other instrument' in Sub-section (2) must be construed ejusdem generis, that is, any other instrument of the same nature, whereby the acquisition is made in respect of property in which the person had no interest previously. The Calcutta High Court followed and referred to these basic principles in deciding the case of Sasadhar Chandra Dev v. Sm. Tara Sundari Dasi : AIR1962Cal438 .
28. I may next refer to the decision in P.B. Chinnakka v. V.K. Subbamma (1968) 1 A.W.R. 65, which contains a full discussion of the case law, including the Bench decision of this Court referred to above. Reference to this case will have to be made again in some other context, but at this stage it is sufficient to mention that one of the points which the Court had to decide was whether property given in lieu of maintenance would come under Section 14(2), since the deed of maintenance contained the express condition that the widows had no power in any manner to alienate the properties given, and whether the words 'any other instrument' must be construed ejusdem generis. For two reasons the Court held that Section 14(2) would not apply. Firstly, on the facts, the properties were not acquired under the arrangement, as though totally devoid of any pre-existing right, and secondly, Section 14(2) would not apply to properties acquired in lieu of maintenance. This aspect is dealt with by the learned Judge at page 771 in which he has extracted the observations of Mallick, J., in Sasadhhar Chandra Dev v. Sm. Tara Sundari Dasi : AIR1962Cal438 . The same view was also expressed in a recent Bench decision of the Patna High Court. In Sumeshwar Mishra v. Swami Nath Tiwari : AIR1970Pat348 , there was a proceeding for mutation of names in the Revenue Court and a compromise entered into, in which the woman was allotted properties for her maintenance without conferring any right in her to alienate any of those properties. After referring to the wide terms of the Explanation in striking contrast to specified categories mentioned in Sub-section (2), it was held that Section 14(2) would not apply to properties allotted on inheritance, partition or in lieu of maintenance. The important point emphasised in the decision is that in the case of a will or gift, the Hindu female gets the property not as a matter of right but by gratis or as a matter of charity; it may even be for moral or laudable consideration which, yet, is not a legal right that can be traced antecedent to the acquisition of the property by gift or will, and that the same considerations would not apply to property allotted on inheritance, partition or in lieu of maintenance. The Bench was inclined to accept the view that the pre-existing right of maintenance cannot be said to be totally unrelated and unconnected with the joint family properties. In taking this view, it has followed the earlier Bench decision of the same Court reported in Lachhia Sahua-in v. Ram Shankar Sah : AIR1966Pat191 , that Section 14(2) would not apply to properties allotted to a female Hindu on partition or in lieu of maintenance. The same view was reiterated in the recent Bench decision of the Patna High Court reported in Bindbashini Singh v. Sheorati Kuer : AIR1971Pat104 .
29. In the decision reported in Jagannathapuri Guru Kamaleshwarpuri v. Godabai : AIR1968Bom25 , the same view was taken with reference to a partition deed between the two widows and the son. The deed of partition contained an express stipulation restraining, the widows from alienating the properties either by sale or otherwise. In this decision, too, Section 14(2) was ruled out on two grounds: (a) That the word 'acquired' in Section 14(2) would apply only to an acquisition for the first time of a new right and would not include allotment at partition which is in recognition of preexisting rights, (b) It was further held that the modes of acquisition covered by Section 14(1) and the Explanation are very wide, comprehensive and unlimited, while the acquisition specified in Section 14(2) and the words 'any other instrument' must be read ejusdem generis with the modes referred to in the earlier portion. Deshmukh, J., observed as follows at pages 29 and 30:
Shri Kalele argued that the expression 'any other instrument' will have to be read ejusdem generis along with the words 'gift' or 'will'. He points out that when property is conferred upon a donee under a gift or a will, there is no prior title in favour of the donee, nor has the donee any right to claim the property. It is a bounty from the donor and as such, the will or the gift creates title for the first time. Any other instrument contemplated by Sub-section (2) of Section 14 must be an instrument of this type, viz., like a will or gift where title is being created for the first time. No doubt, the same word 'acquired' is used in both the sub-sections. However, in Sub-section (2) of Section 14, that word has a different meaning from its counterpart, in the earlier subsection. In Sub-section (1) of Section 14, we have seen that it is used in its broadest sense whereas in Sub-section (2) it is used in its restricted sense, viz., a creation or acquisition of title for the first time where no prior title existed. The document, in order to fall, under the description 'any other instrument' must be of a type where title is created for the first time by that document.
The presumption that the same words are used in the same meaning in every part of an Act, is however very slight, if sufficient reason can be assigned, the same word may be construed in a different sense in the same statute or even in the same section. (Vide Maxwell on Interpretation of Statutes, nth edn., page 312 and Parulekar v. District Magistrate Thana : 1957CriLJ5 .
30. My attention was not drawn to any case in which it was held that Sub-section (2) also should receive the same wide interpretation, i.e., the words 'any other instrument' need not be of the same category as the categories of instruments specifically referred to in the earlier portion of Sub-section 14(2) but should be interpreted in a wide and comprehensive manner.
31. The Bench decision of this Court reported in Rangaswami Naicker v. Chinnammal : AIR1964Mad387 , referred to earlier, is binding on. me. Even so, the reason why in the preceding discussion I have referred to the wealth of case-law in which the rule of ejusdem generis was held to govern in the interpretation of Section 14(2) is that this aspect has not been adverted to in some of the decisions dealing with arrangements and allotment of properties in lieu of maintenance. In my view the reason why the Legislature deliberately excluded in Section 14(2) property acquired by a Hindu female, by inheritance, at a partition or in lieu of maintenance, is very significant and affords a conclusive answer to the interpretation of the word 'acquired' in Sub-section (2). The Legislature is well aware that in the case of inheritance or partition there is undoubtedly a pre-existing right, 'right' with regard to the property as such, and so there can be no question that property acquired by inheritance or partition should not be included under Section 14(2), as it is not a fresh route of title - the idea being that if the Hindu female had already a pre-existing right over the properties in her possession either by inheritance or partition, she should become the absolute owner and Sub-section (2) should leave those cases totally unaffected. Otherwise, as observed by Subba Rao, J. (as he then was) in Tahsildar Singh's case, already referred to, we will be attributing to the Legislature the absurd intention of 'giving with one hand and taking with the other.'
32. So far as the property allotted in lieu of maintenance is concerned, the problem is different. The claim for maintenance, though undoubtedly a valid enforceable claim against the joint family properties, cannot be said to be a right or a creation of interest in or over the family properties, in the strict legal sense of the term. At the same time, when property is allotted for maintenance, by the surviving coparcener, it is not gratis nor charity. Certainly it cannot be said that when property is allotted for maintenance, there was no vestige or semblance of right whatever with regard to the joint family properties, i.e., totally unconnected and unrelated to joint family properties. The claim for maintenance of a widow of a deceased coparcener, as will be presently seen, is not a personal claim but is founded upon property rights and is based upon the fact that the surviving coparcener has taken the share of the deceased coparcener by survivorship. Before the allotment, it is a real enforceable subsisting claim against the family properties and the allotment of properties is a substitution or a satisfaction of that claim, not a satisfaction of a mere personal claim against the surviving coparcener. The allotment cannot be said to fall under the first category because it cannot be said that at the moment of the death of the husband there was a creation of a right or interest (in the strict legal sense of the term) in the properties of the joint family. At the same time, it cannot come under the second category, as if the widow has no semblance of any right whatever against the family properties. The allotment of properties for maintenance falls mid-way (tertium quid) between these two extremes. It is something intermediate and the problem for the Legislature undoubtedly was whether allotments for maintenance should be treated on a par with properties acquired by inheritance or at partition or treat them as out and out fresh acquisitions without any vestige and semblance of title prior thereto. According to settled rules of Hindu Law as laid down in the Hindu Law texts and according to the judicial decisions, it is impossible to take the view that allotment of properties for maintenance should be treated as totally unconnected with and having no semblance of right to the properties. Further,) the Legislature was fully aware that at the time of legislation, a vast majority of Hindu females have been in possession of properties allotted in lieu of maintenance, and if the Legislature decided to treat properties allotted in lieu of maintenance as a new acquisition out and out, the Legislature would be excluding a vast and preponderating section of the Hindu females in India, from the benefit of the important social reform, the object of which was to improve the conditions of Hindu females and to secure them equality. It is obvious that the Legislature decided to treat properties allotted in lieu of maintenance on a par with properties obtained by inheritance or at partition, and it is to effectuate that object that the Legislature excluded the words 'inheritance or at a partition or in lieu of maintenance' in Sub-section (2). If, in the Explanation the Legislature had simply stated, 'property' means property acquired in any other manner without enumerating the several methods of acquisition (as has been done now) there may be some room for argument that 'any other instrument' in Sub-section (2) may include the instrument of allotment of properties in lieu of maintenance. But the Legislature, in the Explanation has specifically enumerated in express term 'property acquired in lieu of maintenance.' There must be some real important reason as to why those words are not repeated like the words 'gift,' 'wills,' etc. in Sub-section (2). The omission of the words 'in lieu of maintenance' in Sub-section (2) is not inadvertent, but it is due to the only reason that it is not the intention of the Legislature that properties given in lieu of maintenance should be treated as on a par with property 'acquired' in whatever sense the word is used in Sub-section (2). Here again, it is necessary to repeat that Sub-section (2) is a Proviso and an interpretation that 'properties given in lieu of maintenance' would be governed by Sub-section (2) is to give the Proviso a wider operation which would destroy the main section, i.e., to quote the words of Subba Rao, J. in Tahsildar Singh's case (1959) S.C.J. 1043 : (1959) 2 S.C.R.875, it will be attributing to the Legislature an intention 'to give with one hand and take with the other.'
33. According to Hindu Law, particularly after the recent decision of the Supreme Court reported in Gowli Buddamma v. Commissioner of Income-tax, Mysore : 60ITR293(SC) , it may not be quite accurate to state that the widow has 'no kind of right' over the property. To use the picturesque language of Viscount Simonds in Attorney-General of Ceylon v. Ar. Arunachalam Chettiar (1957) A.C. 513 : (1957) 3 W.L.R. 293, the doctrines of Hindu undivided family are 'esoteric.' In cases arising under the Income-tax Act, where the Hindu joint family consists of a sole surviving coparcener with female members entitled to right of maintenance in the joint family properties, the question has frequently come up for consideration whether the property and the income belong to the joint family and in respect of the income the tax is leviable on the joint family or on the male member as an individual. The Supreme Court, in the decision referred to above (dissenting from the earlier decision of the Privy Council to the contrary) has held that the property and the income belong to the joint family and the assessment can be only on that basis and not as an individual. In taking this view, the Supreme Court has followed and applied the two decisions of the Privy Council reported in Attorney-General of Ceylon v. Ar. Arunachalam Chettiar (1957) 3 W.L.R. 293 : (1957) A.C. 413 and (1957) A.C. 540 : 34 I.T.R. 42, arising under the Ceylon Estate Duty Ordinance. (Vide the statement of law in Palkhivala's The Law and Practice of Income-tax, 1969, 6th Edn. Vol. I at page 57). One Arunachalam Chettiar and his son were members of a Hindu joint family and the family had extensive trading and other interests in India, Ceylon and other countries. Before July, 1934) when the son died, he and his father were the only surviving coparceners. On the death of the son, the father became the sole surviving coparcener of the family, but there were females including the widow of the son, who though had no right of the coparcener, yet had rights of residence and maintenance out of the joint family properties of which the father was the manager. At that time the Ceylon Estate Duty Ordinance No. 8 of 1919 was in force. The father died in February, 1938, shortly after the Ceylon Estate Duty Ordinance No. 1 of 1938 had come into force. When the father died there was no other male member. There were only widows, i.e., the widows of the father and the son. (The father is referred to as Arunachalam Sr. and the son as Arunachalam Jr.) In the first case, the question arose whether Estate Duty was payable in respect of the half share pertaining to Arunachalam Jr. which survived to Arunachalam Sr. In the second case the question arose whether on the death of Arunachalam Sr. the sole surviving coparcener, whether there was any passing of property. In both the cases the Privy Council, affirming the decision of the Supreme Court of Ceylon, held against the Revenue. The point that was stressed before the Privy Council on behalf of the Revenue was that the son's share in the property was half share and that there was passing of that property on the death of the son, within the meaning of the Ordinance. The Privy Council applied the classical statement of Lord Westbury in Appovier's case (1866) 11 MI.A. 75, that 'According to the true notion of an undivided family in Hindu Law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share.' The Privy Council further observed that even though a coparcener may have certain rights - right of separating from the family, right to alienate his interest in certain circumstances, the right of an executing creditor to ask for intervention for his benefit with regard to the interests of the individual coparcener - according to the strict Hindu Law conception, it will be a misuse of language to say that the individual coparcener has a half share or any share of the family property. It has to be noticed that despite the distinction between the coparcenery which involves the conception of the property vesting in the coparceners and the larger body, the Hindu joint family, which includes coparceners and female members, the Privy Council held that it will be a misuse to hold that the deceased son owned or had a half share in the family property. It is in this context that the Privy Council emphasised the unique position of the kartha in a Hindu joint family in whom all powers are vested and who has the power to distribute the income towards the maintenance of all the members, male and female, by virtue of his duty.
34. The next case is more relevant for our discussion. Section 73 of the Ceylon Estate Duty Ordinance of 1938 provided as follows:
Where a member of a Hindu undivided family dies, no estate duty shall be payable on any property proved to the satisfaction of the Commissioner to be the joint property of that Hindu undivided family.
If the property that passed on the death of the sole surviving coparcerner Arunachalam Sr. was the property of a Hindu undivided family, no estate duty would be payable. But if it was his sole and exclusive property, owned by him as a single individual, estate duty would be payable by the widows who took that property on the death of Arunachalam,' Sr. The argument on behalf of the Revenue was, that the sole surviving coparcener, Arunachalam Sr. could have disposed of the properties in any manner he liked, either by gift or will; there was no restriction in his powers, that nobody else had any proprietary right over the family properties, that he was the sole and exclusive owner and it should therefore be held that when he died, the property that passed was not joint property of the Hindu undivided family but the separate, sole, exclusive property of a single individual. The Privy Council, confirming the decision of the Supreme Court of Ceylon, rejected this argument on behalf of the Revenue.
The nature of the interest of a single surviving coparcener was the subject of exhaustive evidence by expert witnesses and their Lordships were referred to and studied numerous authorities in which in reference to his interest language was used not incompatible with his being regarded as the 'owner' of the family property. But though it may be correct to speak of him as the 'owner', yet it is still correct to describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son it assumes a different quality; it is such, too, that female members of the family (whose numbers may increase have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. And these are incidents which arise, notwithstanding his so-called ownership, just because the property has been and has not ceased to be joint family property. Once again their Lordships quote from the judgment of Gratiaen, J. : 'To my mind it would make a mockery of the undivided family system if this temporary reduction of the coparacenary unit to a single individual were to convert what was previously joint property belonging to an undivided family into the separate property of the surviving coparcener.' To this it may be added that it would not appear reasonable to impart to the Legislature the intention to discriminate, so long as the family itself subsists, between property in the hands of a single coparcener and that in the hands of two or more coparceners, It was urged that already the difference is there since a single coparcener can alienate the property in a manner not open to one of several coparaceners. The extent to which he can alienate so as to bind a subsequently adopted son was a matter of much debate. But it appears to their Lordships to be an irrelevant consideration. Let it be assumed that his power of alienation is unassailable; that means no more than that he has in the circumstances the power to alienate joint family property. That is what it is until he alienates it, and, if he does not alienate it, that is what it remains. The fatal flaw in the argument of the appellant appeared to be that, having labelled the surviving coparcener 'owner', he then attributed to his ownership such a congeries of rights that the property could no longer be called 'joint family property.' The family, a body fluctuating in numbers and comprised of male and female members may equally well be said to be owners of the property, but owners whose ownership is qualified by the powers of the coparceners. There is in fact nothing to be gained by the use of the word 'owner' in this connexion. It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as 'joint property' of the undivided family. Judging by that test their Lordships have no doubt that the Supreme Court came to the right conclusion.
This is clear authority for the post ion that even if there is only one coparcener, the property still continues to be the property of the Hindu undivided family or Hindu joint family.
35. In the decision in Gowli Buddanna v. Commissioner of Income-tax, Mysore : 60ITR293(SC) , one Buddappa, his wife, his two unmarried daughters and his adopted son Buddanna were members of a Hindu undivided family. Buddappa died in 1952 and till then, during his lifetime, he was assessed in the status of manager of a Hindu undivided family. After his death, the dispute arose whether Buddanna the son, who was the manager, of the joint family consisting of himself, his mother, his wife and unmarried sisters, should be assessed as manager of the Hindu undivided family or as an individual. The contention of the Revenue that he should be assessed as an individual and not as the manager of the Hindu joint family was rejected and the Supreme Court did not accept the contrary view enunciated in the Privy Council decisions in Kalyanji Vithaldas v. Commissioner of Income-tax , and Commissioner of Income-tax v. A.P. Swamy Gomedalli . After observing that in the Hindu system of law a joint family may consist of a single male member and widows of deceased male members, the Supreme Court referred to, with approval, the two Ceylon decisions. After extracting the aforesaid observations of the Judicial Committee; in the second case, viz., Accountant-General of Ceylon v. Ar. Arunachalam Chettiar (1957) A.C. 540 : 34 I.T.R.42 the Supreme Court observed as follows at page 1529:
Property of a joint family therefore does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of the property may possess. In the case in hand the property which yielded the income originally belonged to a Hindu undivided family. On the death of Buddappa the family which included a widow and females born in the family was represented by Buddanna alone, but the property still continued to belong to that undivided family and income received therefrom was taxable as HI come of the Hindu undivided family.
After this clear pronouncement it is unnecessary to elaborate the matter further; it is settled law that the property will still continue to belong to the undivided family when there is a sole coparcener and female members, even though the male member alone has the right to alienate or even gift or will away the entire properties. This reasoning of mine should not be understood as laying down that the male member and the female members have equal rights or are equal owners of joint family properties. I have referred to the aforesaid decisions and the principles of Hindu Law and the esoteric doctrines of the Hindu undivided family only to emphasise that the sole surviving coparcener or coparceners are not owners of the joint family properties but it is the Hindu joint family as a unit composed of the male members and female members entitled to maintenance arid marriage expenses that is regarded as the owner of the joint family properties. Thus, when properties are allotted for maintenance by the managing member, it is allotted to the members of the joint family which owns the properties. If, therefore, a Hindu female is a member of the joint family which owned the properties, it would neither be accurate nor a complete statement of the legal position to say that the widow of a deceased coparcener has no right whatever in the relation to or over the joint family properties, and that there is an acquisition of a right for the first time as and from the date of the maintenance arrangement. The word 'acquired' in Sub-section (2) cannot comprehend such pre-existing rights.
36. It is now settled law that despite the Hindu Women's Right to Property Act of 1937, the joint family continues as before without any severence of joint status. All the incidents attached to the joint family property continue to apply to all the members including the widow. Her share is subject to the incidents of survivorship and like the share of the male coparceners, is a fluctuating share and she cannot predicate the particular share to which she is entitled when the family is joint. The share to which she would be entitled will be determined as on the date she demands partition. Vide Lakshmi Perumallu v. Krisnavenamma (1965) 2 S.C.J. 620 : (1965) 2 A.W.R. 105 : (1965) 2 M.L.J.105 : A.I.R. 1965 S.C. 8825. She cannot predicate that she is the owner of any particular item of joint family properties. The managing member will continue to have the same powers to alienate family properties and borrow debts for purposes binding upon the joint family. She is not entitled to call upon the managing member to render an account of the management of the joint family properties. She cannot gift her husband's share but she can only alienate for purposes binding upon her husband's estate. Her right is only a right to maintenance till the family remains joint just as in the case of a male member. According to the aforesaid decisions of the Privy Council in the Ceylon case, the male coparcener in such a situation cannot be said to own any property; that principle should equally apply to the widow of a coparcener after the Hindu Women's Right to Property Act. Virtually, her right is a right to maintenance so long as the family is joint. In such a situation, when the Hindu Succession Act came into force, all the decisions have uniformly taken the view that Section 14(2) would not apply on the ground that there was no acquisition by the widow after the Hindu Succession Act, but she had already owned the right. As I have endeavoured to point out, in strict legal theory, it is really a right to maintenance so long as the family is joint. The same principle should apply where a Hindu widow is only entitled to maintenance as against the family properties without a right to a share.
37. Besides what I have mentioned above, there are other weighty reasons for holding that property allotted in lieu of maintenance cannot be regarded as property acquired without any pre-existing rights within the meaning of Section 14(2). The first is the principle underlying a family settlement. It is difficult to visualise such an arrangement materialising without the conception of the family settlement; indeed such a notion of family settlement is necessarily implicit in it. It has to be naturally presumed that at the panchayat the widow must have made a claim for allotment of properties claiming 'x' acres, the claim being resisted by the surviving coparceners either on the ground that the widow is only entitled to recurring payment in money or on the ground that the widow is entitled to 'y' acres, only and that ultimately the panchayatdars resolved upon an allotment of 'w' acres. The question is not whether she was legally entitled to claim and insisted upon allotment of properties, or whether her right under the Hindu Law was a restricted right, simply confined to recurring payment of money or in kind. The real question is, if, as a matter of fact, she made a claim and insisted in that claim for the allotment of properties asserting that she had 'that right' and ultimately some properties were so allotted, such allotment is in the right asserted by her and thereafter it is not open for the other side to contend that the properties were not given in recognition of the right asserted by her, whether well-founded or otherwise. This basic principle which underlies the conception of a family settlement is well settled. I may refer to the classic al statement of the law, by the Privy Council in the of quoted case of Khunni Lal v. Govind Krishna Narain , (Observations of Ameer Ali) in which the Privy Council completely approved the following statement of the law expressed by' the High Court of North-West Provinces in a very early case:
The real nature of the compromise is well expressed in a judgment of the High Court of the North-West Provinces in 1868 in the suit of Mewa Kunwar against her sister Chhattar Kunwar's husband - Lalla Oudh Beharee Lal v. Ranee Mewa Koomtier (1868) 3 AH.C. 82. The learned Judges say as follows: ' The true character of the transaction appears to us to have been a settlement between the several members of the family of their disputes, each one relinquishing all claim in respect of all property in dispute other than falling to his share, and recognising the right of the others as they had previously asserted it to the portion allotted to them respectively. It was in this light, rather than as conferring a new distinct title on each other, that the parties themselves seem to have regarded the arrangement, and we think that it is the duty of the Courts to uphold and give full effect to such an arrangement.
Their Lordships have no hesitation in adopting that view.
The Supreme Court in Sahu Madho Das v. Mukand Ram (1955) S.C.J. 417 : (1955) 2 S.C.R. 22 : (1955) 2 M.L.J.1, followed and applied this well settled rule enunciated by the Privy Council in the decision referred to above. At page 10, the Supreme Court observed as follows:
But before doing that, we will pause to distinguish Rani Mewa Kuwar v. Rani Hulas Kuwar , Khunni Lal v. Govind Krishna Narain (1911) 21 M.L.J. 645 : I.L.R. 33 All. 356 : L.R. 38 IndAp 87, and Ramasumran Prasad v. Shyam Kumari . It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to or her share is concerned and therefore no conveyance is necessary.
38. It is thus clear that the decision of the panchayat allotting lands to Nallammal was not a fresh acquisition out and out, without any pre-existing rights, but Was based upon the assumption that there was an antecedent right and title of some sort in Nallammal, that the agreement acknowledged that right and that the properties were allotted in recognition of the right that Was asserted both prior to and in the course of the proceedings before the panchayatdars. The surviving coparceners cannot be allowed to contend that the widow had no pre-existing right, i.e., the right to claim allotment of properties and that such a right never resided in her.
It will be an extraordinary state of law and would cut at the root of the basic principles of law of family settlements if one party to the family settlement should later on be permitted to require the other party to prove her title to the properties, allotted. Let us take the familiar case of a family settlement between the widow on the one side and the adopted son on the other, where the dispute Was whether the adoption was true in fact and valid in law, the adopted son, claiming as such, the entire properties of the family. The adopted son, at the time of the dispute, might have been ready with his evidence to substantiate his, claim before the panchayatdars or he would have actually adduced such evidence before them, and on a consideration of all the aspects, the panchayatdars would have settled the dispute by giving him a portion of the estate. In such a situation, it is obvious that thereafter it Would not be open to the widow to claim back the properties putting the adopted son to proof of the factum and validity of the adoption, because the legal consequence of such a family settlement is that the right and title always resided in the adopted son at such.
39. The matter may also be considered from a slightly different aspect which leads to the Fame inference. It is now settled law that if a widow files a suit for maintenance and asks for a charge (in the plaint) over the immovable properties in the hands of the surviving coparceners, the doctrine of lis pendens applies, on the principle that the 'right to immovable property' is directly and specifically in dispute. When the charge is ultimately granted, it dates back to the institution of the suit. If, during the pendency of such a suit, the dispute is compromised and some properties are allotted for maintenance, it is difficult to hold that such an allotment is property ' acquired' within the meaning of Section 14(2), when, from the date of the institution of a suit claiming a charge, a right in respect of all the properties involved in the suit is created in favour of the widow, and that right is settled by a compromise. A right to immovable property over all the family properties, en masse, which originated or came into being from the date of the institution of the suit, is settled by a compromise or decree of Court over specific on the principle underlying Section 52, Transfer of Property Act. It is analagous to the case of a Hindu widow succeeding Jo a mortgage in the name of the deceased husband and subsequently the mortgagor selling the mortgaged property to the widow in satisfaction of the debt. It will be illogical and wrong to hold that when a Hindu female acquires property though in one sense, under a distinct route of title, subsequent to the death of her husband, Section 14(2) would apply. To put it differently, it is wrong to say that Section 14(2) could be ruled out only in cases where the widow got the property on inheritance and throughout kept the same identical property without either converting it or exchanging it or entering into some other arrangement concerning the same.
40. The same principle ought to apply where the widow makes a claim for maintenance outside Court, before the surviving members, with or without convening a panchayat. The widow could have straightaway insisted and asked for an allotment of properties, which situation, I have dealt with in the preceding discussion. If the widow, however, had asked only for money payment, but at the same time coupled with a claim for a charge, the moment she makes such a demand, there is undoubtedly a dispute concerning rights to and over immovable properties. It is impossible to hold that the settlement of such a dispute involving her rights to immovable property is property acquired under Section 14(2). Section 52 of Transfer of Property Act comes into operation when such claims are followed by a proceeding in Court; but if such a claim is settled without any proceeding in Court the principle of the family settlement comes into play. In either case, the principle is, title or right to immovable properties was inhering in the widow before the allotment.
41. I shall next consider the question (de hors the conception of family settlement) whether a Hindu widow has a right to insist upon allotment of immovable properties; it is obvious that if she has such a right, the actual allotment cannot amount to property acquired within the meaning of Section 14(2).
42. My attention was not drawn to any decision or any statement in text-books of Hindu law to the effect that the widow has no right to ask for allotment of properties towards her maintenance, that her only right is the limited right to ask for a provision for a recurring payment. Indeed, from the Cases to which I shall presently refer, it will be seen that the widow is entitled to make a claim for allotment of properties (depending upon the resources of the family) and she is not compellable to take a recurring payment in lieu of maintenance. It is settled law that the managing member of a joint family or the guardian of a minor can alienate or allot properties to the widow of a deceased coparcener in lieu of maintenance either absolutely or for the enjoyment by the widow during her lifetime, depending upon the resources of the family, and other relevant considerations. For instance, a joint family may own lands in several villages and a woman who became a widow in her young age may be living in her native place in healthy surroundings with a good temple, etc., and the joint family may own lands in that village also. I do not see why, in such a case, the widow (either outside or in Court proceedings) would not be entitled to insist upon an allotment of those lands in lieu of maintenance to enable her to live in that village in comfort, due regard being had to the resources of the family. What is the principle of law which entitles the surviving coparceners, who have taken the share of the deceased husband, to insist that the widow must be content with a recurring money payment depending upon their tender mercies every month? I am not prepared to hold that the Court would not be justified in recognising such a right of the widow to ask for that specific settlement. I may first refer to the oft-quoted statement of law by Lord Robertson in Rewa Prasad Sukal v. Deo Dutt Ram Sukal ILR (1900) Cal. 515 : 27 I.A. 9, that it is not an unnatural and unaccustomed mode of dealing with the property if it is given to the widow of a deceased coparcener towards her maintenance and that it is a well-known practice amongst the members of an undivided Hindu family.
43. I may next refer to a Bench decision of this Court in Seeni Ammal v. Angamuthu Nadar (1912) Ind.Cas. 802 : (1912) 1 M.W.N. 99. In that case a minor son filed a suit for partition against his father, who was the third defendant. The father's step-mother was the first defendant and the father's step-sister was the second defendant. The father had given some properties to the first and second defendants with full powers of alienation in full satisfaction of the first defendant's claim for maintenance and the second defendant's claim for maintenance till her marriage etc. The son questions this act of the father and the Bench held that an outright allotment of family property by way of provision for maintenance is not necessarily beyond the powers of a family manager.
44. In T.R. Sundaram Aiyar v. Subbammal and Anr. A.I.R. 1916 Mad. 554, the Bench of this Court held that an absolute alienation of joint family properties to the maintenance holder in lieu of maintenance is not illegal if it was not excessive or unreasonable.
45. In Yeshwant v. Daulat A.I.R. 1926 Nag. 129 it was observed that it is quite in keeping with the sentiments of a Hindu father-in-law to assign some portion of the joint family property to his widowed daughter-in-law in lieu of her right to maintenance.
46. I may next refer to the decision of Sundaram Chetty, J., in Seethiah v. Aravapalli Mutyalu : AIR1931Mad106 , in which the guardian of male sole surviving coparcener gave away a portion of the joint family properties to the widow of the deceased brother in lieu of her claim for maintenance, an' when it was later on questioned, it was held that the settlement of the claim of the maintenance-holder by allotment of some properties is well within the competence of the natural guardian and not beyond his powers. The relevant cases on the point are referred to in this decision.
47. It is true that the managing member of the joint family is entitled to be in possession of all the joint family properties till a partition takes place, and on this aspect there is no difference between a male member and a female member. Even so, it has been held that a male member is entitled to sue for maintenance without asking for partition. In Cherutty v. Nagamparambil Ravu : AIR1939Mad513 , a Bench of this Court held, differing from the Bombay view, that if there is a right to maintenance there must be an appropriate remedy when that right is asserted or denied, and that it would work in justice if the appropriate remedy is denied. The Bench also held that the daughter also is equally entitled to file a suit against the managing member for maintenance even when the family is joint and the personal liability of her father is not a bar to the daughter to enforce her claim for maintenance against the managing member of the joint family properties. In taking this view, Leach, C.J., and Krishnaswami Ayyangar, J., who delivered separate judgments, have referred to the discussion in the Full Bench decision of this Court in Subbayya v. Ananta Ramayya ILR (1930) Mad. 84 : 1930 57 M.L.J. 826, about the nature and origin of the right to maintenance. While discussing this matter, Ramesam, J., at page 98 had stated that the right to maintenance of the daughter is a historical remnant of an original share in the properties and that when the daughter's right is so viewed, it cannot be said that the daughter's interest is not 'an interest in the property' and that the right of the daughter is a real right over the joint family properties. The important principle underlying this Bench decision in Cherutty's case : AIR1939Mad513 , is that while the family is joint, the member of the joint family, whether male or female, is entitled to ask for maintenance (either outside Court or through Court proceedings) and there should be an appropriate remedy for working out this right. What is the appropriate remedy and in what form the relief should be granted, would depend upon the facts and circumstances of each case. The relief which is awarded by the Court ultimately is what the Court considers the claimant is entitled to under the Hindu Law if such a right had been asserted before the commencement of the proceedings in Court. If the Court has ample jurisdiction to allot specific items of properties, such an allotment is made on the recognition of such a right already inhering in favour of the party concerned. It is obvious that the Court cannot award that relief if the party was not entitled to that relief but only entitled to a payment of money. In this connection, I may also refer to the Bench decision of this Court in Ramayya Goundan v. Kolanda Goundan : (1939)2MLJ639 , in which it was held that it is perfectly within the competence of the manager of a Hindu joint family, to allot individual members sufficient portion of the family properties having regard to the status and circumstances in order to enable the individual member to live in comfort. Krishnaswmi Ayyangar, J., stated the law in these terms at page 912:
I think it is perfectly within the competence of the manager of a Hindu family to allot to individual members of a sufficient portion of the family property having regard to its status and circumstances in order to enable them to maintain themselves out of its income. So long as the provision is fair and reasonable and the manager acts in good faith without making the occasion a pretext for favouritism or injustice the arrangement would be upheld by the Court as within the powers of the managing member. For, it cannot be denied that every member of the family while it remains joint has a right to be maintained out of the common assets. When the manager proceeds bona fide to satisfy such a claim which is plainly the inherent right of every member, he is merely discharging a duty incumbent upon him under the law. In fact, the propriety of his act in this behalf cannot be questioned.
In this respect, there cannot be any difference between the right of a male member and the right of a female member, especially when it is borne in mind that the widow's right for maintenance as against the joint family properties in the hands of surviving coparceners is a relic of the rights the husband's share in the family properties. Why I consider these cases discussed above, (which dealt with the question of the legality and validity of the act of the managing member of the joint family in making specific allotments for maintenance or in giving away properties to female members absolutely or for enjoyment during their lifetime in lieu of maintenance), as of relevance, is that the act of the managing member can be upheld only if the other party to the arrangement had such a right and is entitled to that kind of relief. The managing member, undoubtedly, is exercising his right or discharging his duty or obligation as the managing member. But, when it is said that such acts are within his authority and not in excess of his powers, it necessarily carries with it the notion that the other party has got the correlative right to insist upon such a provision. In other words, the right of the female member to insist upon that particular remedy, of allotment of properties in lieu of maintenance (of course due regard being had to the resources and circumstances of the family) is inseparably connected with the power or/and duty of the managing member to comply with or satisfy that demand of the female member.
48. At this stage, I may refer to a Bench decision of this Court in Lingayya v. Kanakamma : (1915)28MLJ260 , in which the Bench had observed that Hindu widows of coparceners are entitled to a portion of the estate in their enjoyment during their lifetime. It is useful to extract the statement of law at page 154 as follows:
The wives of the male coparceners in a Hindu family are not entitled to equal shares with the males in the family estate, nor do they take their husbands' shares by representation on their death, but in place thereof they are entitled to a portion of their estate for their enjoyment during their lifetime sufficient to maintain them in comfort according to the means of the family. This is an absolute right due to their membership in the family and does not depend on their necessity arising from their want of other means to support themselves. At a partition made by the husband during his lifetime between his sons, his wife was at one time entitled to an equal share with his sons. Mitakshara, Chapters 1 and 2, slokas 8 and 9. According to the Dayabhaga, the husband's undivided share descends to his widow in its entirety. According to Katyayana, the widow may claim either a portion of the estate or an allowance for her maintenance. The same view is maintained by Vrihaspathi See G. Sirkar Sastri's Viramitrodaya, page 173.
This is binding upon me and my attention has not been drawn to any decision taking a contrary view.
49. There is an interesting and useful discussion about the origin of the right of maintenance of a deceased coparcener's wife against the joint family properties in the hands of surviving coparceners in N. Varahalu v. Sithamma : AIR1961AP272 , and in Golapchandra Sarkar Sastri's Hindu Law, Eighth edition at pages 234, 278 and 545. At page 540, the learned author has referred to the right to maintenance as the legal incidents of a legal right to property. The learned author observes as follows:
But all this is open to objection that the right to maintenance being a right to property, which the law confers on one person against another, and annexes it to some estate, why should any such extraneous consideration affect it in the manner set forth above, when the law does not say so? It is, therefore held that improvement of her financial consideration is no ground for reducing the maintenance.
The head-note in N. Varahalu v. Sithamma : AIR1961AP272 , may be extracted to show that the right to maintenance cannot be regarded as restricted to a mere claim for payment of money and that it is inseparably linked with the subordinate co-ownership or certain rights in the joint family properties:
The basis of the right of a widow is not her want of means to support herself, It arises out of her being a member of her deceased husband's family. At one time, she was entitled to a share when the sons came to a partition. The present right of a widow to maintenance is a relic of a claim to a share in the family property, such a right must be an absolute and an unconditional one and cannot be hedged in with conditions such as the. absence of private means, etc. The person who inherits the property of the husband of the widow or any person to whom the property survives on account of the death of the coparcener would take it only subject to the obligation to maintain the widow.
Observations in some of the decisions to the effect that the right to maintenance is purely a personal claim and it is not a right to property as such should be understood in the context in which they occur. Such observations are made in cases where there is a dispute between a maintenance holder and either a Court-auction purchaser or a creditor who attaches the properties or a bona fide purchaser satisfying the conditions of Section 39, of the Transfer of Property Act. In other words, where it is a claim of priority as between the maintenance-holder on the one hand and any one of the parties mentioned above, on the other, Courts have held that till a charge is created or the properties are ear-marked the right of the maintenance-holder cannot be enforced. On the same reasoning it has been held that till the maintenance-holder works out the right and get a charge declared or get some properties allotted, it will be open to the surviving coparceners to alienate the properties subject to the conditions in Section 39 or they may sell the properties for necessity or purposes binding upon the family. It is true that the paramount power of the manager to alienate the properties will prevail over the claim for maintenance of a widow of a deceased coparcener, till the right of the widow is crystalised and either a charge is created on properties or they are allotted in lieu of maintenance. In my view, it is not right to rely upon the observations made in those contexts to hold that a claim to maintenance has no semblance of right connected with the joint family properties.
It may be appropriate to quote the following criticism of the decisions by the learned author (Golapchandra Sarkar Sastri, 8th Edition) which is found at page 533:
There cannot be any doubt that under Hindu law the wife's or widow's maintenance is a legal charge on the husband's estate; but the Courts appear to hold, in consequence of the proper materials not being placed before them, that it is not so by itself, but is merely a claim against the husband's heir, or an equitable charge on his estate; hence the husband's debts are held to have priority unless it is made a charge on the property by a decree.
The following passage in Secretary of State v. Ahaljiabai1, may be extracted:
The plaintiffs are clearly entitled under the Hindu law to have their maintenance and marriage expenses defrayed from the property attached. Under the Hindu law, if a coparcener takes the property of another deceased coparcener by survivorship, he takes it with the burden of maintaining the widow and unmarried daughters of the deceased coparcener. It cannot be said that this right of maintenance is merely personal in the sense that it has no reference to the property which he gets by survivorship. A distinction has been drawn in some cases between a Hindu's obligation to maintain his wife and his obligation to maintain the widow of his coparcener. It is said that his obligation to maintain his own wife is a personal obligation while the obligation to maintain the widow of a coparcener is not personal. It means the husband is bound to maintain his wife even though he has not got any property from his father, and that his obligation to maintain his wife is independent of possession of any property, while the obligation of one coparcener to maintain the widow of a deceased coparcener whose share in the property he gets by survivorship is an obligation which attaches to that property. In other words, because he gets that property by survivorship and because his interest in the joint property is thus enlarged, he is bound to maintain the widow of the deceased coparcner who had a right to be maintained out of the property which he takes by survivorship. In that sense the property which he takes by survivorship is burdened with the obligation to maintain the widow. It may be that in the technical language it may not fall within the definition of ' charge' under Section 100, Transfer of Property Act. This charge is a later creation by statute, but the Hindu law has always regarded the widow's right as a burden on the property. It has thus been held that the right of maintenance attaches to the property itself which is taken by survivorship.
50. I may also refer to the early Bench decision of Calcutta High Court in Srinath Das v. Probhat Chandra Das (1910) Ind.Cas. 244 : 1910 Cri.L.J. 580, where in a suit for partition, one of the coparceners was not heard of for several years and on the question of addition of parties, the Bench held that it will be right to implead the wife of the coparcener concerned. In rejecting the argument that the wife has no right whatever in the properties, the Bench Observed as follows:
Besides, as a Hindu wife, she had a right of maintenance enforceable against the estate of her husband. (Jagannath's Digest Tr. Colebrooke, Book IV, Chapter I, Section 1, Article 45, Sonatun Bysak v. Sreemutty Jugut Soondree Dossee (1859-1861) 8 M.I.A. 66. Indeed, a Hindu wife's right to maintenance has been attributed to a kind of identity with her husband in proprietary right, though her right may be of a quite subordinate character, but it is by virtue of this right that she gets a share equal to that of a son when partition takes place at the instance of male members Jamna v. Machul Sahu (1878-80) I.L.R. 2 All. 315, West and Buhler's Digest of Hindu Law, 3rd Edition, pages 362, 392). From this point of view, it is impossible to hold that she had no interest whatsoever in the property, and we are of opinion that when the partition takes place, the share of her husband may be appropriately made over to her, to be held by her on his behalf during his absence.
51. The next question is what is meant by the words 'Prescribe a restricted estate in such property' in Section 14(2). If there is nothing else in the context and the surrounding circumstances as is often called, i.e. 'the evil or the mischief that is sought to be remedied and the social reform which was sought to be introduced by the legislature', it must be realised that if property is given to a person with a condition that he should have no powers of alienation whatever, it would amount to prescribing a restricted estate. In the case of properties allotted to Hindu females at a partition, the Courts have ruled out Sub-section (2) to Section 14 on one of two grounds or on both, (a) The property has already been acquired by the female before the actual partition as evidenced by the partition deed and (b) the condition in the partition deed prohibiting alienation is more the statement or declaration of the legal position of the nature of the estate allotted to the Hindu females at the family partition, i.e., just explaining or enumerating the legal incidents attached to the property given to a Hindu female at a family partition. In Gadam v. Venkataraju : AIR1965AP66 , the adoptive son executed a deed of maintenance in favour of the adoptive mother which contained a clause that the adoptive mother can only enjoy the fruits or income from the property and cannot make any alienation. Chandra Reddy, C.J., delivering the judgment on behalf of the Bench first ruled out Section 14(2) on the ground that the arrangement was not an acquisition for the first time, but was merely a recognition of her pre-existing right for maintenance. On the question whether the imposition of the condition against alienation would amount to 'prescribing a restricted estate,' the learned Chief Justice observed as follows:
The restriction referred to above merely set out the legal effect on her estate as maintenance-holder. This was another way of stating that the widow could have a life estate in the property and that she is to enjoy these properties in lieu of her maintenance. It is not disputed that a maintenance-holder cannot alienate properties beyond her lifetime. Her rights cannot be equated to widow's estate. In these circumstances, the instant case fails outside the scope of Sub-section (2) and is governed by Sub-section (1) of Section 14.
In Sampathkumari v. Lakshmi Ammal : AIR1963Mad50 , two co-widows who had taken the properties as the, heirs of their husband, entered into a partition arrangement in 1946 dividing the properties into equal shares with a condition that after their lives, the properties mentioned in the two schedules should go to the heirs-at-law. The argument that this amounted to prescribing a life or restricted estate and nothing more was not accepted. It was observed that the clause merely declared the legal incidents or what would otherwise have happened to the properties allotted to the two widows at the partition.
52. I may also refer to the following observations:
In Lachhia Sahuain v. Ram Shankar Sah : AIR1966Pat191 .
The restriction referred to above merely set out the legal effect on her estate as maintenance-holder. This was another way of stating that the widow could have a life estate in the property and that she is to enjoy these properties in lieu of her maintenance. It is not disputed that a maintenance-holder cannot alienate properties beyond her lifetime.
It is unnecessary to refer to other cases and it is sufficient to refer to the recent unreported judgment of the Supreme Court delivered on 21st January, 1969, in Nirmalchand v. Vidyawanthi C.A. No. 609 of 1965. In that case, there were two brothers, Aminchand and Lakshmichand, who owned considerable properties, agricultural as well as non-agricultural, situated in several places, some of diem in the then territory of Pakistan, before the partition. The brothers partitioned the non-agricultural properties sometime in 1944. Thereafter, Lakshmichand died leaving behind Nirmalchand his son through his predeceased first wife, his second wife Subhrai Bai and his daughter through her, Vidyawanthi. There was a partition evidenced by a deed between Aminchand, the other brother, and Lakshmichand's son Nirmalchand and Lakshmichand s second wife Subhrai Bai. With regard to the properties allotted to Subhrai Bai, the deed contained a specific provision as follows:
Subhrai Bai will be entitled only to the user of this land. She will have no right to alienate it in any manner. She will have only life interest in it.
Subhrai Bai died some time in 1957 leaving a will dated 18th June, 1957, in favour of her daughter by which she gave away the properties allotted to her under the partition deed. On the merits, the Supreme Court held that Subhrai Bai had a share in the properties as the widow of her husband and the properties were allotted in lieu thereof. Even so, it was argued that it was a restricted estate within the meaning of Section 14(2) and reliance was placed on the clause extracted above. The Supreme Court rejected this argument holding that the recital in the deed in question that the widow should have only a life interest in the properties allotted to her share and she will have no power of alienation is a mere recording of the true legal position, and it would not amount to prescribing a limited estate. From this decision it is clear that the use of the words 'to enjoy the property for life only without any powers of alienation' or the use of words to similar effect is not decisive of the question. In a vast majority of cases, they are words describing the legal incidents or the actual legal position. For instance, if a man gives a certain property with all powers of alienation to 'A' and to his heirs at a law, the words 'heirs-at-law' are not mere words of purchase, but are words of limitation, the words 'heirs at law' in the context being used to merely declare what would happen according to law after A's death. It is familiar knowledge that in all such partition arrangements between the widow of a deceased coparcener and the surviving coparceners, the husband's share is given to the widow concerned with such recitals in the partition deed that the widow should enjoy the properties for her lifetime without powers of alienation. If those words are regarded as prescribing a restricted estate under Section 14(2), the object of the legislation would be easily defeated. This essential distinction in construing the words, as merely stating the legal effect of the transaction, as distinguished from prescribing a restricted estate, under Section 14(2), has not been considered in many of the decisions which had applied Section 14(2). The background of the transaction, the pre-existing relationship of the parties, if any, as distinguished from the parties being absolute strangers and whether they have any claim upon the property in praesenti or in a contingency, are all aspects which should be taken into account in determining whether a particular stipulation in the deed comes under Section 14(2), or it is merely expressing the legal incidents of the right created. For instance, if a person gives his properties to a stranger ' A' a Hindu female for her lifetime without any powers of alienation, and the vested remainder to some other strangers 'B' 'C' and 'D', it cannot be said that the estate of the Hindu female 'A' is not a restricted estate. The relationship of the parties taken along with the fact that the vested remainder has been specifically vested in certain specified individuals, may be of relevance in interpreting the document. Taking another illustration : Certain properties may be allotted to a Hindu female along with other persons males or females and separate interests or separate items might have been carved out in favour of the Hindu females and the other parties, and such a provision may also be followed by a restraint against alienation, and a further provision that the property should be taken after their lifetime, by certain named parties. The fact that a Hindu female and other strangers are clubbed together and the same identical provision is made for all of them is a strong circumstance to hold that it is 'prescribing a restricted estate' and that the conditions mentioned in the documents are not words employed merely to describe the legal incidents. It is unnecessary to further illustrate.
53. At this stage, I want to refer again to the important aspect which has been adverted to in some of the decisions including the latest decision of the Supreme Court reported in Badri Pershad v. Smt. Kanso Devi1, in which it is emphasised that the object of Section 14 is only to remove the disability on women imposed by law and not to interfere with contracts, grants or decrees. This note of warning, will have to be applied with caution so as not to defeat the provisions of the Act. The Court must take an overall picture of the entire situation and determine, whether the predominent idea, in the transaction is in the realm of Hindu Law, and restraints are imposed on women in view of the prevalent notions existing then, or is the transaction predominently in the realm of contracts. There is bound to be overlapping and in the same field considerations of Hindu Law or alternatively the effect and operation of individual contracts may operate. In either of the categories of the arrangements the notion of a contract is substantially involved and so the problem cannot be solved in the abstract. It will have to be solved in the light of all the facts and circumstances, in particular, bearing in mind that the Explanation refers to acquisitions and grants even from third parties and strangers and the word 'limited owner' in the section is not used in the sense of a Hindu female necessarily linked up with the notion of a reversionary succession, but to denote a mere limited owner, in contrast to the notion of an absolute owner.
54. The next aspect is the question whether Section 14(2) would apply only to arrangements reduced to writing or it would cover oral arrangements also. The argument that in Section 14(2) is confined to arrangements reduced to writing, it would amount to attributing, an intention to the Legislature, to discriminate between transactions reduced to writing and oral arrangements, even though in law both are equally valid and operative, should not be over-stressed. The word 'prescribe' has a well-defined and well-understood legal meaning and unless there is something compelling in the context to the contrary, that word must receive the natural meaning. In 'Words and Phrases' by West Publishing Company, Volume 33, page 412, it is pointed out that the word 'prescribe' has a well-defined legal meaning, i.e., to lay down beforehand as a rule of action, to ordain, appoint, define authoritatively. In Murray's Dictionary, Volume 7 at page 1298, it is stated that the word 'prescribe' means to write before, to appoint or direct in writing; to write or lay down as a rule or direction to be followed; to appoint, ordain, direct, enjoin, to limit, restrict or restrain. The same meaning is to be found in Webester's New International Dictionary, Volume 2, page 1698. Indeed the compelling context and the other words found in Section 14(2) which precede and follow the word 'prescribe' clearly lead to the inference that that word has been used in the well-defined and well-understood legal meaning which that word bears. It is quite legitimate to presume that the Legislature deliberately ruled out oral arrangements for the excellent reason that an investigation regarding the truth or otherwise of an oral arrangement, i.e., whether or not there was a particular oral stipulation would only result in wasteful, protracted and frivolous litigation by the Hindu families and they would be spending all their time in Courts. In respect of oral arrangements which had taken place long before it will be a difficult problem for the Courts to arrive at the truth or otherwise, i.e., whether or not there was an oral stipulation prescribing a restricted estate. In order to avoid frivolous and protracted litigation and to ensure a satisfactory solution of the problem, the Legislature has thought fit to exclude oral arrangements from the purview of Sub-section (2). This policy of eschewing oral arrangements is not a new feature unknown to legislation. There are numerous legislations in which their scope and operation have been restricted to transactions or dealings reduced to writing. A matter of everyday occurrence is to be found in some of the provisions of the Indian Evidence Act or the Transfer of Property Act or the provisions of the Registration Act. Instead of enacting a provision (under the guise of social reform) which would involve the Hindu females in protracted and costly litigation, the Legislature has determined that Section 14(2) should apply only if there is a written document. My attention was drawn to a decision of a Single Judge of the Punjab High Court in Blenda v. Dunichand , and to an unreported decision of Natesan, J., (of this Court) in S.A. No. 1415 of 1965. In the latter case, the learned Judge while holding that properties allotted in lieu of maintenance would be governed by section (2) had also expressed the view that Section 14(2) would apply also to oral arrangements. In Veerabhadra Rao v. Lakshmi Devi : AIR1965AP367 , a contrary view was taken that Section 14(2) would not apply if the arrangement is oral. For the reasons mentioned above with respect, I am of the view that the decision in Veerabhadra Rao v. Lakshmi Devi : AIR1965AP367 , is to be preferred. The same conclusion follows when the wide language in the Explanation is considered. In the Explanation, apart from the several modes of action enumerated, the Legislature has made the provision all embracing by using the words 'or in any other manner whatsoever'. But the language employed in Sub-section (2) is very restricted and the words 'prescribe a restricted estate' are preceded by significant words showing that the arrangement must be in writing.
55. I shall sum up my conclusions and then briefly refer to the relevant decisions of this Court and other Courts.
(1) Property given in lieu of maintenance will be governed by Section 14(1) read with the Explanation.
(2) If the arrangement is oral, Section 14 will not apply.
(3) Applying the rule of ejusdem generis, the words 'any other instrument' in Sub-section (2) would not include an arrangement allotting properties in lieu of maintenance.
(4) Property which is given in lieu of maintenance cannot be said to be 'acquired' within the meaning of Section 14(2), as if right to maintenance had no vestige or semblance of a right to joint family properties.
(5) Property given for maintenance simpliciter without any express stipulation would not amount to prescribing a restricted estate.
(6) Prescribing a restricted estate has got a well-defined legal meaning and stipulation in the agreement that the Hindu females should, only enjoy the property during her lifetime, and shall have no powers of alienation would not amount to prescribing a restricted estate but the clause merely records or enumerates the legal effect and describes the legal incidents attached to the right in the properties allotted.
(7) As Section 14(2) is in the nature of an exception or a proviso, it should not be given a meaning which would defeat and destroy the main provision and the very object underlying the enactment. Further, the words in Section 14(2) are not such as to compel the Court to give them a meaning which would defeat the manifest object of this legislation, i.e., vital and important social reforms.
56. The first decision is that of Veeraswami, J. (as he then was) reported in Santhanam Kanchapalaya Gurukkal v. Subramania Gurukkal I.L.R. (1967) Mad. 68. In that case a widow of a deceased coparcener had filed a suit (O.S. No. 576 of 1917) against the surviving coparceners for maintenance as against the joint family properties. A compromise was entered into by which nine items of nanja lands of a total extent of 9 acres 66 cents were carved out of the entire family properties over which the charge was claimed, and allotted to the widow for life without any powers of alienation thereof. In 1957, after the Act had come into force, the widow had settled those properties, and the question was whether the property became the absolute estate or was a restricted estate within the meaning of Section 14(2). The learned Judge held that the right to maintenance 'is an abstract right which is in the nature of spes successions and that in no sense such a right can be described as a right to or in property'. He further held that it was a restricted estate as the compromise contained a stipulation that the widow shall not have any powers of alienation. With great respect to the learned Judge, it would not be correct to describe a present valid enforceable right to maintenance of a Hindu widow against the joint family properties as in the nature of spes successions. The expression 'spes successions' can refer only to rights which would come into existence in future and without any certainty. The learned Judge has referred to the case of Rangaswami Naicker : (1964)1MLJ374 , the Bench decision of this Court in a different context and he has not adverted to the rule of ejusdem generis which would exclude properties acquired on inheritance, partition and in lieu of maintenance from the scope of Section 14(2). He has not also considered the aspect of the family settlement and the implication of the doctrine of lis pendens which I have discussed in the preceding paragraphs. It was not argued before the learned Judge that, at any rate, after the institution of the suit in 1917 claiming a charge over all the joint family properties, right in or title to immovable property was in dispute and that the compromise was in settlement of a dispute in which rights over immovable properties had accrued in favour of the widow, before the allotment. In view of the unreported decision of the Supreme Court, a stipulation in, an agreement between the widow on the one side and the surviving coparceners on the other, that the widow should enjoy the property for her lifetime without any powers of alienation, will not amount to prescribing a restricted estate, but the stipulation merely sets out the legal effect of the incidents to property allotted to women for their maintenance.
57. The next is the decision of Natesan, J. in Thatha Gurunadham Chetti v. Smt. Thatha Navaneethamma I.L.R. (1968) Mad. 567 : (1967) 1 M.L.J. 454. That decision is easily distinguishable, and on the facts of that case and the arrangement, the stipulation will amount to prescribing a restricted estate within the meaning of Section 14(2). After the death of the father, his four sons partitioned the family properties under a deed of partition consisting of five schedules; and 'A' schedule, which contained four items, was allotted to Thatha Muniamma, the widow, (i.e., the mother of the sons) for maintenance with an express clause that the mother had only the right to enjoy the income from the properties during her lifetime and she had no powers of alienation of any kind. The deed of partition also contained an important and significant provision that after the death of the mother the four Sons should take the four items, the partition deed particularising the specific item respectively to be taken by each of the sons after the death of the mother. One item of property, which was the subject-matter of the second appeal, was to go to the share of Venkatachalam, one of the sons who died issueless in 1954 predeceasing the mother Muniamma. In December, 1956, the mother Muniamma conveyed to another son, Gurunadham, the suit item which was to go to the share of Venkatachalam. Dispute arose between Venkatachalam's widow, and Muniamma, the mother, and her settlee, her second son. The learned Judge held that Section 14 is not intended to override the lawful terms in contracts and bargains and that the object of Section 14 is not to put a Hindu female in a better position than a Hindu male with regard to the effect of a gift or bequest or other instrument in the matter of construction. The learned Judge also took the view that the mother had no title and no right to share the property and that the sons could have contented themselves with making a regular money payment and that Section 14(2) applied because the properties were acquired only under the partition without any preexisting right and the partition deed prescribed a restricted estate. Here too, the same observations have to be made as in the case of the decision in Santhanam Kachapalaya Gurukkal's case I.L.R. (1967) Mad. 68. With great respect, I am unable to agree with the reasonings of Natesan, J.; the rule of ejusdem generis which would exclude property acquired on inheritance, partition or in lieu of maintenance, from the ambit of Section 14(2) has not been considered by the learned Judge. His observations about the legal incidents of the right to maintenance cannot be regarded as a complete statement of all the legal incidents, in the context of Section 14(2) as though the right to maintenance of a Hindu widow as against the family properties in the hands of surviving coparceners has not the slightest semblance or vestige of right in or over the properties. The stipulation for reverter in the particular specified manner coupled with a clause prohibiting alienation would amount to prescribing a restricted estate within the meaning of Section 14(2).
58. The manner in which, after the death of the mother, the items of properties were to be taken over, specific item by each of the sons, indicates that it is not a mere describing or setting out the legal effect of the incidents of the rights created, but is a specific additional stipulation. The principle laid down by the Supreme Court in the unreported decision referred to earlier would not apply.
There are two decisions of Alagiriswami, J. - one reported in Dharma Udayar's case1, and the other reported in P. Pattabhiraman's case (1970) 2 M.L.J. 331. The decision in Dharma Udayar v. Ramachandra Mudaliar : (1969)1MLJ181 , is distinguishable on the facts and may well be said to be governed by Section 14(2) on the question of prescribing a life estate. One Thandavaraya had three sons, Ponnuswami, Munuswami and Govindarajulu. In 1917 the father and his two sons Munuswami and Govindarajulu and the widow of Ponnuswami, the third son, entered into a family arrangement evidenced by a deed under which properties were allotted to the father, his two sons and Manonmani, the widow of the predeceased son Ponnuswami. The partition deed contained an important provision that the two sons Munuswami and Govindarajulu could sell or gift the properties which fell to their share, while in the case of the property allotted to the father Thandavaraya and Manonmani, the widow of the predeceased son, it was specifically stated that both of them were merely to enjoy the property given to them for their lifetime with a further provision that the two sons are entitled to have separate pattas of properties allotted to them without any corresponding provision for transfer of patta in the case of the properties allotted to the father and the widow. The only provision is that the father and the widow should enjoy-the properties allotted to them respectively for their life and that the two sons were to get the properties thereafter. In this decision it is significant to notice that the father and the widow are clubbed together in one group and the two sons in another group and the two groups are treated differently. That is an indication that the particular stipulation is not a mere setting out of the legal effect or describing the legal incidents of the estate created, but the parties have bestowed thought and were prescribing a particular restricted estate. It is implicit in this partition arrangement that the parties are stipulating that even the father should not have any powers of alienation and should have only a restricted estate. On the other question of the right to maintenance, the learned Judge has extracted some portions of the Judgment of Natesan, J., in Thatka Gurunadham Chetti v. Smt. Thatha Navaneethamma (1967) 1 M.L.J. 454 : I.L.R. (1968) Mad. 567, and has followed the reasoning contained therein.
59. The other decision of Alagiriswami, J., is the one reported in P. Pattabhiraman v. Parijatham Ammal (1970) 2 M.L.J. 331, The learned Judge has taken the same view that properties are acquired for the first time only under the arrangement within the meaning of Section 14(2). As to the precise nature of the right of maintenance, he has followed his prior decision in Dharma Udayar v. Ramachandra Mudaliar : (1969)1MLJ181 , and the decision of Natesan, J., referred to earlier. One other distinguishing feature in that case is that the compromise which gave the properties in lieu of maintenance and residence were entered into in a suit between the widow of one Manavala Naidu, the predeceased son of Venkatarajulu Naidu, on the one side, and the son of the daughter of the last full owner, i.e., Venkatarajulu Naidu. It is not an arrangement between the widow of a predeceased coparcener and surviving coparceners. But the claim for maintenance was against the daughter's son, who had succeeded as a reversioner. With great respect, I have to make the same comments in respect of both the decisions of Alagiriswami, J. as in the case of the decision of Natesan, J.
60. The decision of Gokulakrishnan, J. in Unnamalai Ammal v. Vellaya Pillai : (1971)1MLJ147 , is clearly distinguishable. With respect, on the facts, the decision is correct. In that case there was a partition between three brothers, one of whom was Palaniappa. On Palaniappa's death, his widow Unnamalai Ammal got into possession of the properties that fell to the share of her husband Palaniappa. Unnamalai Ammal alienated the properties to one Arunachalam, and the other brother Vayyapuri (father of the plaintiffs in the litigation) objected to the sale. There was a panchayat and the panchayat decision, was reduced to writing (Exhibit A-8 in that case). Apart from the obligations (to discharge debts of Unnamalai) which were undertaken by Vayyapuri, there was an express stipulation that the widow Unnamalai Ammal should enjoy the properties during her lifetime without any powers of alienation and after her death the properties must go back to the surviving brother Vayyapuri the reversioner. Despite this arrangement, the widow Unnamalai Ammal created an other in favour of the second defendant and the question arose whether the othi will be binding on the plaintiff (Vayyapuri's son). The learned Judge held that it is a case to which Section 14(2) would apply and not Section 14(1). From what has been mentioned above, it will be seen that it was a distinct separate agreement between the owner of the properties, the widow of one coparcener, and the other brother who was merely a reversioner to the estate of the deceased brother and both the parties entered into a specific arrangement, which of course would be binding upon them. In fact, the arrangement is outside the scope of Section 14. There was no occasion for the learned Judge to deal with the scope of Section 14(1) and (2) in the context in which the problem has arisen in the instant case. I have already referred to the Bench decision of Chandra Reddy, C.J., and Narasimham, J., in Gadam Peddayya v. Varapula Venkataraju : AIR1965AP66 . In that case, after the husband's death the widow made an adoption in the year 1935. Shortly thereafter disputes arose between the adopted son and the adoptive widow which resulted in a settlement reduced to writing. Some lands were given to the widow to be enjoyed by her during her lifetime and the question was whether that amounted to a restricted estate. The Bench held that the restriction merely set out a legal effect on her estate as a maintenance holder and that Section 14(2) would not apply since the properties were given to the adoptive mother in recognition of her pre-existing rights of maintenance.
61. The other decision in Somthim Veerabhadra Rao v. Duggirala Lakshmi Devi : AIR1965AP367 , in that same volume is the judgment of Ekbote, J., at page 367, to which reference has already been made. The important point to be noted in that decision is that the learned Judge recognises that Section 14(2) will not apply if properties are given in lieu of maintenance to a woman who would have a claim against the properties in the hands of other parties and that if the obligation (to maintain is not there) and if in such a situation properties were given in lieu of maintenance Section 14(2) would apply. That was a case in which the paternal grandson gave some properties to his paternal grandmother (out of his own self-acquired property) and there was only a personal obligation. It was therefore that Section 14(2) applied. At top of page 371 the learned Judge points out the distinction between a right to maintenance as against the family properties and a mere personal obligation. It is to be mentioned that at page 372 the learned Judge distinguished the earlier decision in Gadam Peddayya v. Varapula Venkataraju : AIR1965AP66 , on the ground that that decision was not a case where there was no obligation, thereby implying that if it was a right against the family properties, Section 14(2) would not apply. With respect, I am unable to agree with some of the observations, in this decision to the effect that in the case of allotment of properties in lieu of maintenance, there can be no notion of any pre-existing right in or over the properties. Indeed the learned Judge, in his discussion in the earlier portion of the judgment, was inclined to take the view that if the Hindu female had a claim for maintenance against the family properties and not merely a personal claim different considerations would apply ruling out Section 14(2).
62. The decision in Rarumuri Seetharamayya v. Patcha Peeraiah : AIR1964AP545 , turned on its own facts and in particular on the evidence given by a lawyer about the true nature of the rights created. In this decision too the learned Judge has not considered the various other aspects adverted to by me in the preceding discussion.
63. The next is a Bench decision of Jaganmohan Reddy, G.J., and Sambasiva Rao, J., reported in Gopisetti Kondiah v. Gunda Subbarayudu (1968) 2 An.W.R. 455. In that case the claim of the widow of the deceased coparcener for maintenance was settled and there was a deed giving properties to the widow for her lifetime. The Bench held that Section 14(1) was applicable to the case. At page 460 the Bench has observed that a specific item of property can be transferred to the widow in discharge of her right of maintenance from out of the estate of her husband or of the property of the family and she may be put in possession thereof.
64. In Purna Chandra Barik v. Nimei Charan Barik : AIR1968Ori196 , the widow was given certain properties for maintenance with the condition that the properties would revert back to the surviving coparcener. The Court held that Section 14(2) would not apply.
65. The next is the decision in V.S. Reddi v. V. Tulasamma : AIR1969AP300 . In that case the widow obtained a decree for maintenance against the surviving coparcener with a charge on the joint family property. Thereafter there was a compromise decree under which the woman was given possession of some properties to be enjoyed by her during her lifetime with a right of reverter to the surviving coparcener (the plaintiff in the litigation). The Court held that Section 14(2) would apply because it was only under the compromise decree that the woman was given possession of the properties. It also held that the particular clause in the compromise decree amounted to prescribing a restricted estate. With respect, I am unable to agree with the learned Judge that the clause of reverter amounted to prescribing a restricted estate. Applying the principle of the unreported Supreme Court decision, referred to earlier, the clause in the compromise has to be understood as merely setting forth the legal effect of the transaction and describing the manner in which the law will take its own course. There is further aspect that before the compromise the widow had already obtained a charge decree which has fastened upon the property and the compromise was in substitution of the charge decree which the widow had already obtained. With great respect to the learned Judge, I find it difficult to agree that this is a case of new acquisition within the meaning of Section 14(2). The prior charge decree obtained by the widow has created certain rights over the properties charged and it is not a mere personal claim thereafter. For instance, if a Hindu woman had mortgage or othi rights over certain properties and if those properties are sold to the woman in discharge of the mortgage or the othi, it will not be correct to say that the property has been acquired for the first time without any pre-existing rights over the property. If one right is extinguished and substituted by another right (for instance, if there is an exchange of property) it may not be correct to say that the property is acquired under Section 14(2). The correct expression in that context would be to say that the property was 'got' and not property 'acquired' within the restricted sense in which the word 'acquired' is used in Section 14(2).
66. The Bench decision reported in Prema Devi v. Joint Director of Consolidation : AIR1970All238 does not take the matter any further. The statement that 'the scheme of Section 14 apparently is to give full proprietary rights to Hindu women where she got only limited rights by virtue of ancient Hindu Law but not to affect those which were received under an instrument by deliberate human volition', has put the matter too widely. Observations to similar effect are also be found in some of the decisions referred to earlier. They do not take note of the fact that Section 14(1) and the Explanation cover all kinds of acquisition, even properties given by strangers for maintenance or gifts by strangers if the doctrine that those transactions are purely in the realm of contracts and would remain unaffected by Section 14(1) is applied logically, Section 14(1) would be rendered ineffective. For instance, if a person gives some properties to a Hindu female 'B', an utter stranger, for her maintenance to be enjoyed by her during her lifetime evidenced by a document and says nothing as to what should happen to the properties on B's death. There can be no doubt that after the death of 'B' the property will revert back to the owner or his heirs. Such a reverter is not a case of spes successionis. The donor still continues to be the owner of the vested remainder, he having only carved out by the gift deed or will an estate in favour of the woman for her maintenance. It may well be argued that Section 14(1) would apply to such a case, because it is property in the possession of the Hindu female and given to her for maintenance without any further stipulation. The Explanation which embraces acquisition of property 'in any other manner whatever' and the fact that the words 'limited owner' in Section 14(1) are not used in the limited sense of the Hindu female being in possession of property as representing the last full owners' estate with certain persons having a right of reversionary succession at the time the Act came into force, may be relied upon in support of this argument. On the other side, it might equally be argued that the object of the Act is not to interfere with contracts and grants, and Section 14(1) is not expropriatory and there cannot be confiscation, as it were, of other's properties merely because the person in possession happens to be a female and she got the property in lieu of maintenance. It is easy to visualise cases which may give rise to such problems involving difficulties to determine which side of the line the case fails. But it must be borne in mind that absolute logic and consistency cannot be maintained in the operation of the provisions of this Act all throughout and in particular Section 14, when this is essentially a legislation of social reforms involving extinguishment, fresh distribution and modification of property rights. In this connection, I may also refer to the recent decision of the Supreme Court in Sukh Ram v. Gauri Shankar : 1SCR476 , a case arising under the Benaras School of Hindu Law, under which as distinguished from other schools, a male coparcener cannot alienate the properties except with the consent of the other coparceners. The question arose whether a Hindu female, who succeeded to the share of her husband under the Hindu Women's Right to Property Act, 1939, became an absolute owner under Section 14 of the Hindu Succession Act. The argument, that it was not the intention of the Legislature to place a Hindu female on a higher or better footing than a male coparcener was not accepted and it was held that the language of Section 14 is plain and the estate became an absolute one without any restrictions, though, at the same time, any other coparcener cannot alienate the property without the assent of the entire body of coparceners. It was observed as follows:
We are unable to agree with Mr. Chatterjee that restrictions on the right of the male member of a Hindu joint family form the bed-rock on which the law relating to joint family property under the Hindu Law is founded. Under the law of the Mithakshara as administered in the territory governed by the Maharashtra and the Madras Schools and even in the State of Madhya Pradesh, a Hindu coparcener is competent to alienate for value his undivided interest in the entire joint family property or any specific property without the assent of his coparceners. A male member of a Hindu family governed by the Benaras School of Hindu Law is undoubtedly subject to restrictions qua alienation of his interest in the joint family property but a widow acquiring an interest in that property by virtue of the Hindu Succession Act is not subject to any such restrictions. That is however not a ground for importing limitations which the Parliament has not chosen to impose.
67. It cannot be denied that there will be hardship in certain cases. But that is inevitable and that cannot be a justification to cut down the true meaning of the plain words in the statute. It will not be right for the Court not to give effect to the words in the statute on the ground that it was not the intention of the legislation to interfere with the freedom of a party to enter into agreements and contracts. It may be, in certain circumstances, that is an aspect to be taken into account in interpreting the document concerned, but cannot be an outweighing factor so as not to give effect to the wide language employed in Section 14(1) and the Explanation.
68. The decision in Narayan Patra V. Tara Patrani : AIR1970Ori131 , follows the decision of Natesan, J. in Thatha Gurunadham Chetti v. Smt. Thatha Navaneethamma I.L.R. (1968) Mad. 567 : (1967) 1 M.L.J. 454, already referred to. With respect, I have to make the same observations regarding the reasons contained in the decision of the Orissa High Court. The extreme view that the right to maintenance is wholly unrelated to the properties and the Hindu woman has no semblance of right to the properties so as to hold that Section 14(2) alone would apply, is not correct.
69. I have already referred to the Bench decision of the Patna High Court in Sumeshwar Mishra v. Swami Nath Tiwari : AIR1970Pat348 , in which the Bench has emphasised that, if property is given in lieu of maintenance, and, if the Hindu female had such a right as against the family properties, the case would not be governed by Section 14(2) and that the rule of ejusdem generis would apply to the modes of acquisition in Section 14(2).
70. I see no substance in the argument that the plaintiff was merely allowed to enjoy the usufruct and that no interest was created in her favour over the properties even during her lifetime, and that was why kist was paid by the defendant and the property continued to be in the name of the defendant. No such plea was raised in the written statement, no evidence was adduced to that effect and no arguments were advanced in the courts below. Indeed, the written statement filed by the defendant proceeds on the footing that an estate for the duration of the lifetime of the plaintiff was created in favour of the plaintiff. This argument founding a distinction between the creation of an estate for the duration of the lifetime and a mere right to enjoy the usufruct, peculiar to Mohamadan Law was not advanced.
71. For all these reasons, the second appeals fail and are dismissed. No costs.