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Muthu Bhattar Vs. D. Chokku Bhattar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported inAIR1976Mad8; (1975)2MLJ232
AppellantMuthu Bhattar
RespondentD. Chokku Bhattar and ors.
Cases ReferredEramma v. Veerupana
Excerpt:
- t. ramaprasada rao, j.1. the unsuccessful plaintiff in o.s. no. 151 of 1965 on the file of the learned principal subordinate judge of madurai is the appellant. the dispute is about the right which one of the widows of a joint family acquired in relation to one of the properties of the family. chinnasami bhattar had five sons. three amongst them died issueless. the other two sons were subbu bhattar and chocku bhattar. subbu bhattar died leaving behind him his son chinnaswami bhattar, who, in turn, died on 31st december, 1937, leaving behind him his widow ammani ammal. the other son chokku bhattar died in 1935 leaving behind him subbammal as his widow. ammani ammal died on 22nd february, 1945, after having taken the plaintiff in adoption. subbammal, however, lived till 3rd september, 1965......
Judgment:

T. Ramaprasada Rao, J.

1. The unsuccessful plaintiff in O.S. No. 151 of 1965 on the file of the learned Principal Subordinate Judge of Madurai is the appellant. The dispute is about the right which one of the widows of a joint family acquired in relation to one of the properties of the family. Chinnasami Bhattar had five sons. Three amongst them died issueless. The other two sons were Subbu Bhattar and Chocku Bhattar. Subbu Bhattar died leaving behind him his son Chinnaswami Bhattar, who, in turn, died on 31st December, 1937, leaving behind him his widow Ammani Ammal. The other son Chokku Bhattar died in 1935 leaving behind him Subbammal as his widow. Ammani Ammal died on 22nd February, 1945, after having taken the plaintiff in adoption. Subbammal, however, lived till 3rd September, 1965. Subammal was therefore admittedly a pre-1937 widow in the sense that she became widow prior to the passing of the Hindu Women's Right to Property Act of 1937. In 1940, she filed the suit O.S. No. 202 of 1940 on the file of the District Munsif of Madurai, seeking for 'her accredited maintenance rights. It is common ground that in the pleadings in that suit Subbammal stated that she was living in one of the family houses and in consequence thereof, she claimed a sum of Rs. 75, on account of her maintenance. She however made , it clear that she was in occupation of the above immovable property belonging to the joint family and that she was claming in that suit the additional money claim which was in addition to her right to reside in the family house which was also under her occupation under an arrangement with the other members of the joint family and that right of occupation coupled with the decree sought for in money for her living and existence would be in full quit and satisfaction of her claim to maintenance as against the other members of the family. The learned District Munsif referred to this fact and observed that Subbammal was not claiming any independent relief in respect of her right to residence and that the money sought for other purposes of her living may be computed independent of such right of residence which she was already enjoying as above. The learned District Munsif also said that, in addition to the residence in regard to which no relief was claimed in the plaint and as to which no provision was made in the judgment, the plaintiff Subbammal would be entitled to a sum of Rs. 15 per month on account -of her maintenance after the date of the judgment. This judgment and decree of the Court-below which went up in appeal was confirmed excepting to the extent that the quantum of maintenance granted was increased by Rs. 5. After the said judgment was so rendered by a competent Court, Subbammal continued to reside in the property which is the subject-matter of this suit and, as already stated, lived till 3rd September, 1965, which is posterior in point of time to the date of the induction of the Hindu Succession Act, 1956. Consequently, under the provisions contained in the Hindu Succession Act of 1956 and in the view that her limited interest which was a qualified interest in the property in which she was residing and which she acquired in lieu of maintenance enlarged itself into an absolute estate, Subbammal executed a registered will (Exhibit B-57) bequeathing the property in favour of defendants 1 and 2 who are her near relations. It is also not in dispute that defendants 1 and 2 continued in possession of the suit property by virtue of the testament after the death of Subbammal. Whilst matters stood thus, the plaintiff, soon after the death of Subbammal, filed the present action for a declaration of his title to the suit property as the immediate reversioner of Subbammal and sought for a permanent injunction restraining the defendants from interfering with his alleged possession of the suit property or, in the alternative, for possession with mesne profits.

2. The defendants in their written statement, after having referred to the relevant facts which led to Subbammal executing the testament in question maintained that at no time, the plaintiff was in possession of the suit property and, therefore, was not entitled to the preventive injunction against them. On the other prayer of the plaintiff that he should be declared as the owner of the suit property and entitled to possession thereof, the defence was that the plaintiff did have no manner of right, title or interest in it and that by virtue of Exhibit B-57 they were entitled to the suit property in their own right and in consequence, they were entitled to be in possession of the same without being disturbed by the alleged claim or right projected by the plaintiff.

3. On the above relevant pleadings, the following issues were framed:

1. Whether the plaintiff has title to the suit house?

2. Whether the plaintiff is in possession of the suit house to warrant the relief of injunction against the defendants ?

3. Whether Subbammal became entitled absolutely to the suit house by reason of the Hindu Succession Act, 1956?

4. Whether the will dated 27th December 1957 of Subbammal is true, valid, and binding on the plaintiff having been executed by her, when she was in a sound disposing state of mind?

5. Whether defendants I and 2 have acquired right to the suit house under the said will?

6. Whether the suit has not been properly valued and correct Court-fee has not been paid?

7. To what relief, if any, is the plaintiff entitled ?

The following additional issues were also framed:

8. What is the market value of the suit property?

9. To what future mesne profits is the plaintiff entitled, if any ?

4. On issues 6 and 8, the learned Subordinate Judge held that, as the suit has been properly valued in the course of trial and as proper Court-fee has been paid, the issues need not be answered one way or the other. On issue 2, he held that the plaintiff was never in possession of the suit house and, therefore, not entitled to the relief of injunction as prayed for. On issue Nos. 1 and 3 which are the material issues which arose for consideration, before him, he held that by reason of Section 14 (i) of the Hindu Succession Act and in the facts and circumstances of this case, Subbammal became a fresh stock of descent under the Act and she having died not intestate, had absolute title to the suit property and that she had in consequence the incidental right and capacity to deal with it in any manner she desired. The learned Subordinate Judge considered the import of the judgment of the learned District Munsif referred to earlier and found that the right acquired by the plaintiff in that suit, viz., Subbammal in or about 1940 as was seen from the recitals in the pleadings in that suit and as was obvious from the facts disclosed during its trial was a right which she acquired to the suit property in lieu of her maintenance, that she was in possession of the same on the dale when the Hindu Succession Act, 1956, came into force and that the charge created by the decree as regards the secured payment of the money decree passed therein would not in any way alter the situation. On issue Nos. 4 and 5, he held that Exhibit B-57 was executed by Subbammal whilst she had the necessary testamentary capacity to do so and that the will has been proved in solemn form in accordance with the law and that, therefore, the defendants 1 and 2 could base their claim on Exhibit B-57. He was also of the view that there were no suspicious circumstances surrounding the execution of the will and that Subbammal had the jus disporendi not only to write the will, but also to dispose of the property which is the subject-matter of the testament as she purported to do. Ultimately, he upheld the title of defendants 1 and 2 to the suit property and therefore dismissed the suit of the plaintiff. It is as against this, the present appeal has been filed.

5. The learned Counsel for the appellant reiterated the contentions raised in the lower Court. Mr. S. Sitarama Iyer would seriously contend that the contents of Section 14(1) of the Hindu Succession Act, literally taken, give the impression that in order to enlarge the nature of a property held by a Hindu pre-1937 widow, it is necessary that the character of title which such lady had at or about the time when Act XXX of 1956 was introduced should be in the nature of a widow's estate or as is popularly known as a limited estate under the orthodox Hindu* Law and Subbammal not having had such an interest at or about the time when the Hindu Succession Act was introduced, her right, whatever may be the nature of it, cannot be deemed to have been enlarged by reason of section I4(l)< of the Act. He would also state that,, though under the explanation, the property acquired by a female Hindu in lieu of maintenance or arrears of maintenance would also be property within the meaning of Section 14( 1), yet, according to him, the nature of title and right which a female heir could be said to have possessed or owned in relation to that property in. question not being equatable to that of a widow's estate and not being equivalent to the right of a limited owner, it cannot be said that there has been an automatic expansion of that right into full? ownership. It is also said that by a reading of the judgment of the learned District Munsif in the original suit referred to above, the right could only be said to be a right of residence as is commonly known and not any other right known to jurisprudence. But, on the other hand, Mr. R. Gopalaswami Iyengar, learned Counsel for the respondents, would say that the language of the Explanation, read in conjunction with the purport of Section 14(1), gives the undoubted impression that any property possessed by a female Hindu in lieu of maintenance or arrears of maintenance shall be held by her as the full owner thereof, if only two conditions are satisfied; firstly, she should have been in possession of the property on the date of the commencement of the Act and, secondly, there must be cogent proof that that property came into her possession by virtue of an unqualified arrangement as regards her maintenance as a widow of the joint family. Once these two conditions are satisfied, then the statutory provision is attracted on its own force and the result is that there is an automatic enlargement of the estate of the female Hindu into full ownership thereof.

6. Though a number of decisions has been cited by both the sides, the question whether a property possessed by a female Hindu whether acquired before or after the commencement of the Act in connection with her maintenance rights or arrears of maintenance should be held by her as full owner thereof after the Hindu Succession Act came into force is not free from doubt. There is, of course, a pronouncement of Ramanujam, J., in Second Appeal No. 1203 of 1973 and that of Ramaswami, J., in S.A No. 1558 of 1971 both of which probably squarely govern the issue. But the other decisions cited by the learned Counsel for the appellant in particular would cover cases where the maintenance grant is subject to an instrument, decree, order of Court or a document prescribing a restricted estate in such a property in relation to the maintenance-holder. As such a contingency such as the grant of a maintenance right with a contemporaneous restriction attached to it is governed by Section 14 (2) of the Act, such decisions cited by the learned Counsel for the appellant may not be apposite for the situation. We shall, however, consider the import of such decisions.

7. Before doing so, it is necessary to understand as to what is a maintenance right. The components of maintenance understood both in civil and criminal law are many and varied. Inter alia it contains the right to claim food, attire and shelter. These and other ingredients of the right of maintenance are to be consolidated and not to be treated disjunctively. In the case of the right of maintenance of a Hindu female or a Hindu widow, until the passing of the Hind Adoptions and Maintenance Act, 1956, this was governed by the personal law of the parties. A peculiar situation, however, is always demonstrable with reference to the pre-1937 widows. In the case of such widows of female members, when a maintenance right is recognised either by the act of parties or by an involuntary measure, such as a decree of Court, then that right so secured by the Hindu female has to be understood with reference to the fact and circumstances under which the grant was made. But, as was stated by a Full Bench of our Court in Ramanadan v. Rangammal I.L.R. (1889) Mad. 260.

The correct view is that the obligation to maintain the mother is strengthened by giving her an interest in immovable property and thereby enabling her to constitute that interest into a specific charge, or an actual existing proprietary interest for the term of her life, and to protect her right of maintenance against improvident alienation of the fund from which it is to be satisfied. To this extent, the right of maintenance is a right in re or an interest in ancestral property.

(The under-lining is ours).

The right to maintenance of a Hindu female is not a bare personal right to enjoy the property for life. It is in this context, we should understand the decree and judgment which the learned District Munsif passed in favour of Subbammal in O.S. No. 202 of 1940 as early as 1949. We have already excerpted the relevant portions. The learned District Munsif in uncanny terms observed:

In addition to residence in regard to which no relief is claimed in the plaint and as to which no provision is made in the judgment or decree in this suit, the plaintiff is entitled to be paid Rs. 25/.

There was, therefore, a conscious application of the mind of the Court as well as the parties before it when the maintenance right to which Subbammal was entitled to as a member of the joint family was reckoned and quantified. There was absolutely no doubt that the possession of the property which is the suit property was in her own right as maintenance-holder of the family and that such possession was not attributable to any act of trespass or illegality on the part of Subbammal. In exercise of a right however, restricted it may be and however small may be its content, Subbammal was in possession of the suit property in lieu of her maintenance. As we said, the facets of maintenance are varied in nature and one such accepted ingredient of maintenance is the right of residence. It is therefore fairly clear, that when the decree for maintenance was passed in 1940, the various components of maintenance, such as shelter, food and clothing, were taken into consideration and as Subbammal was already having ' her residence in one of the family properties the other components of the maintenance right were reckoned in terms of money and the decree was rendered by the learned District Munsif. In fact that this is the position is not disputed by the plaintiff himself The plaintiff, when he instituted the suit, interpreted the scope of O.S. No. 202 of 1940 on the file of the District Munsif, Madurai, and averred in the present action as follows:

Subbammal has clearly stated that in lieu of her right of residence, she was occupying the aforesaid house.

As the right of residence is one of the limbs of the right to claim maintenance, it cannot be said that as and from the time when Subbammal possessed the property in question and was in occupation of it, she did not acquire that property in lieu of maintenance. As was stated by Venkataramana Rao, J., in Bayapparaju v. Lakshmamma : AIR1937Mad193 the right of a female member to reside in the family dwelling house as well as her right of maintenance is based upon her husband's right to share in the family property.

8. It would be convenient at this stage to refer to the relevant provisions in the Hindu Succession Act which are apposite for our discussion.

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.

In the orthodox Hindu Law, a widow's estate was understood in a peculiar way having regard to the satiric edicts which generally govern the ownership and the treatment of such estate of widows. Very early, the Privy Council recognised that even though the estate held by a widow is what is legally and popularly understood as widow's estate, even then for justifiable necessity and for other causes she had the power to alienate the same. There were, therefore certain particular rights which were attached to and incidental to a widow's estate. Such widow's estate, which was later on by usage described as limited ownership, was also understood and interpreted in the same light. The concept of limited ownership or widow's estate (if they are interchangeable at all) projected a particular circumstance whereby the limited owner could alienate the property for necessity, etc. But in the case of property acquired by a female Hindu either before or after the commencement of the Act in lieu of maintenance or arrears of maintenance which obviously enures for her life cannot be the subject-mater of any alienation at all. The distinguishing feature compartmentalises the two estates, namely, the woman's estate or a limited estate and an estate or property acquired by a female Hindu in lieu of maintenance. Whilst the latter could never be the subject-matter of any alienation even for necessity, the former could be. In this context, the words deployed in Section 14(1) 'shall be held by her as full owner thereof and not as a limited owner' should be interpreted. In our view, the words 'limited owner' appearing in the latter part of Section 14 (1) are more positive expatiation of the situation and they have therefore no impact upon the concept in the orthodox Hindu Law which deals with limited ownership or widow's estate. In any event, the argument of the learned Counsel that the words 'limited owner' used in Section 14 (1) of the Act should be understood in that light and a Hindu female acquiring property in lieu of maintenance should also be placed in that plane of limited owners or females owning widow's estate is not acceptable to us. No doubt, the learned Counsel has referred to certain decisions which we shall presently refer to and as in the opinion of the Supreme Court the position is not that canvassed for by the learned Counsel for the appellant, we are unable to subscribe to that view. Each case has to be decided on its own merits and it is therefore necessary to study the basis and the hypothesis under which the particular Hindu female obtained the property in lieu of maintenance and if under the circumstances of a particular case such acquisition included a right to possess immovable property in lieu of maintenance and if such possession continued till the commencement of Act XXX of 1956 and continued thereafter, then such an inchoate right enlarges itself into an absolute right by virtue of the text of Section 14 (1).

8. We shall now consider the citations made by the counsel at the bar. Before referring to the various cases referred to by the learned Counsel for the appellant, we may immediately refer to the treatment of the subject by the Supreme Court in Eramma v. Veerupana : [1966]2SCR626 . The Supreme Court said:

The property possessed by a female Hindu, as contemplated in the section, is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act. It may be noticed that the Explanation to Section 14 (1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title, however, restricted the nature of her interest may be. The words 'as full owner thereof and not as a limited owner' as given in the last portion of Sub-section (1) of Section 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. In other words, Section 14 (1) of the Act contemplates that a Hindu female who, in the absence of this provision, would have been a limited owner of the property, will now become full owner of the same by virtue of this section; the object of the section is to extinguish the estate called 'limited estate' or 'widow's estate'(in Hindu Law and to make her a Hindu woman, who under the old law would have been only a limited owner, a full owner of the property with all powers of disposition and to make estate heritable by her own heirs and not revertible to the heirs of the last male holder.

9. The learned Counsel for the appellant very strongly relies upon the latter part of the passage as excerpted above and would vehemently contend that what was intended by the Act as interpreted by the Supreme Court was that unless the female heir had in her what was called a 'limited estate' or 'widows estate', there cannot be any expansion or absolution of such estate by virtue of the Explanation. It should not be forgotten that the case in Eramma v. Veerupana : [1966]2SCR626 referred to above was not dealing with a case of maintenance. But, the earlier part of the quotation cited above, in our view, makes it very clear that the property possessed by a female Hindu as contemplated in this section read with the Explanation to Section 14 (1) is clearly the property to which she has acquired some kind of title. The Supreme Court, with the greatest respect to the learned Judges, has very rightly placed the accent on some kind of title, however, restricted the nature of her interest may be', it therefore, follows that such title, however inchoate or restricted it may be', is enlarged by reason of the operation of the statutory provisions and such enlargement is automatic. The words 'limited estate' or 'widow's estate' used by the Supreme Court in the above judgment, no doubt, refer to the facts of that case. But, as they have laid down categorically that even a restricted title to the property, which sprang from the application of the provisions of Section 14 (1) of the Hindu Succession Act, would automatically expand itself into an absolute right, it is this proposition which applies to the facts of this case. Subbammal acquired the property in lieu of maintenance. That is not even seriously disputed before us. Then it follows that the Hindu Succession Act made a particular departure from the accredited norms of the personal law of Hindus by including that imperfect restricted title in property acquired by a Hindu female in lieu of her maintenance as a right which should be enlarged by reason of Section 14 (1). This is a specific departure from the personal law as well as the common law. A maintenance right acquired by a Hindu female always enures for her life. The legislature was conscious of it. But they included this in the explanation to Section 14(1) deliberately so as to expand that right and to make it an absolute right in the female concerned after the commencement of the Hindu Succession Act. We are, therefore, unable to agree with the learned Counsel for the appellant that unless the prior estate held by the female is either a limited estate or a widow's estate within the meaning of the orthodox Hindu law, there cannot be an automatic enlargement of that estate by reason of Act XXX of 1956.

10. We have already referred to the fact that a maintenance right is a right in re vide Ramanadan v. Rangammal I.L.R. (1889) Mad. 260 v. This right which is inchoate in a female Hindu is attributable to her status as a female member of the family. It is undoubtedly therefore a right and if that right has an impinge or impact on immovable property in the sense that while granting such maintenance to a Hindu female certain rights in immovable property are also created, it follows axiomatically that she has acquired a right in the property in lieu of her maintenance. Such a right, therefore, has to be dealt with under Section 14 (1) and so viewed, Subbammal's right over the suit property has enlarged after the induction of Section 14 (1) of the Hindu Succession Act.

11. The next question to be considered is whether Subbammal had barely a right of residence over the property or she was having that right which is contemplated in Section 14(1). There is absolutely no basis for the contention that Subbammal was residing in the suit property only because she was granted a right of residence. In Raj Singh v. Hastimal relied upon by the learned Counsel for the appellant, a bare right of residence was granted to the female Hindu. In that context, the learned Judge said that the words ''acquire' occurring in Section 14 is important, and that the person who has only a right of residence in the property cannot be said to have acquired the property. There cannot be a dispute over this proposition. But the Supreme Court in Mangal Singh v. Rattno : [1967]3SCR454 observed as follows:

The expression used in Section 14(1) of the Act was intended to cover cases of possession in law also, where lands may have descended to a female Hindu and she has not actually entered into them. It would, of course, cover the other cases of actual or constructive possession. On the language of Section 14(1), therefore, this provision will become applicable to any property which is owned by a female Hindu, even though she is not in actual, physical or constructive possession of that property.

It, therefore, follows that Section 14(1) takes into its fold juridical possession also. But in the case under consideration, it was physical possession which Subbammal had in the property, ever since the decree for maintenance was granted and she died possessed of it on the date when the Act came into force. It is in this context we have to refer to the judgment of Ramanujam, J,, in S. A. No. 1203 of 1973. In that case, there was originally a controversy as to whether the property acquired by the female Hindu there, was by virtue of a partition or a grant. The case of the plaintiff in that case was that the suit items were given to the widow in lieu of maintenance somewhere in 1937 without any right of alienation and on condition that the property should revert to the heirs of the last full owner. But, this was however controverted later. This controversy as regards the origin of title of the female owner in that case probably was the basic cause for the decision of the learned Judge. In one portion of the judgment, the learned Judge said that:

in view of the Explanation the property given to Nevvi (the widow) in lieu of her claim for maintenance will also be property contemplated by Section 14(1).

Relying upon the observations of the Supreme Court in Eramma v. Veerupana : [1966]2SCR626 already referred to above and in particular reference to the expatiation of the object of the legislature referred to by the Supreme Court in that decision, the learned Judge was inclined to take the view that unless the estate held by the female owner was a limited one or a widow's estate in Hindu Law, there could not be any enlargement of it, notwithstanding the provisions of Section 14 (1). With great respect to the learned Judge, we are unable to agree and we have already given the reasons. The Supreme Court in the above case, in our view, laid down in unequivocal terms the proposition that any kind of right secured by a female Hindu which resulted in the acquisition of rights over property by her and which continued in her possession on the date of commencement of Act XXX of 1956 would automatically be enlarged by reason of the norm and principle contained in Section 14(1). This observation of the Supreme Court however was not squarely referred to by the learned Judge.

12. Santhanam Kachapalaya Gurukkal v. Subramania Guruhkal (1974) 87 L.W. 202 relied upon by Ramanujam, J. was a case where the widow trespassed into the property and she had no vestige of title or right in it. It is obvious, therefore, that she did not acquire any right over the property in a manner known to law for such right to be enlarged by reason of the operation of Section 14(1). In the said case, the learned Judges have no doubt referred to the fact that the widow therein did not have any pre-existing title to the property. But in the facts and circumstances of that case, as the widow did not have any title or right over the immovable property at all, then it could not be comprehended how such a non-existent right could have expanded in any sense whatsoever and much less in the sense contemplated under Section 14 (1). Ramanujam, J., also referred to the decision in Chellammal v. Nallammal : (1971)1MLJ439 . There, the learned Judges correctly laid down the proposition that maintenance grants in each case have to be understood with reference to the facts and circumstances of each case. In the light of the facts disclosed in that case, they were of the view that there was no enlargement. But the decision of Natesan, J., in Lakshmi Ammal v. Sappantmuthu Nadar S.A. No. 1415 of 1965 was quoted with approval by the Division Bench in Chellammal v. Nallammal : (1971)1MLJ439 . Natesan, J. in S.A. No. 1415 of 1965 inter alia states:

Now under Section 14(1), read with the Explanation, a land given to a female Hindu who has no pre-existing right to a share in the property, without any express terms limiting her estate in the land, would become her absolute property.

We approve of this statement of Natesan, J.J Adopting this and applying the same to the facts and circumstances of our case, the property given to Subbammal who had no pre-existing right to a share in the property, without any express terms limiting her estate in the property, would become her absolute property under Section 14(l). It is not contended that under the decree of Court or by any other arrangement, the mode of enjoyment of the right to possess the property was in any way curtailed or limited. It would appear to us that Subbammal got possession of this property in lieu of her maintenance without any restriction or limitation attached to the enjoyment of that property and she continued in possession of the property till Act XXX of 1956 came and therefore, in our view, there is an automatic expansion of her qualified interest in the property into an absolute interest.

13. The decision in Rangammal v. Muthuraja : (1970)2MLJ620 has also no application to the facts of this case. Therein it was held that mere possession was not sufficient to attract Section 14 (1). That is also admitted to be not a case of maintenance grant. Presumably on the ground that possession of the female owner of the properties was neither juridical, positive or constructive, the learned Judges were of the view that there was no enlargement of the estate. But these are not the facts in the instant case. The case reported in Dharma Uadyar v. Ramachandra Mudaliar (1968) 81 L.W. 399 is a case where under the maintenance grant, a property was given to a female with a specific direction that she should enjoy it for her life and that it should revert back to the persons named under the grant. This case, therefore, has no application as Section 14 (2) would cover the same.

14. We have already referred to the fact that the Supreme Court in Eramma v. Veerupana : [1966]2SCR626 has made the position very clear. When the Supreme Court referred to the object of the section, they were probably referring to it with reference to the facts of that case and we are of the view that having regard to the principles and the ratio therein, it cannot be said automatically and generally that it is only a limited estate of a female which would enlarge itself into absolute estate and not other estates. We have pointed out a distinction between the limited estate or a widow's estate and the estate, if one such expression could be used, which a female acquires in lieu of her maintenance. The former could be the subject-matter of an alienation and the latter cannot be. There are very many facets of distinction between the two estates. The legislature has included the right covered by the latter under Section 14 (1). To this extent, there has been a specific departure from the application or invocation of the personal law of the parties. Undoubtedly, a maintenance right acquired by a female would enure for her life. The Parliament was conscious of it; But yet they made it clear that if such right had an impact on immovable property and if, as a result of the vesting of such a right in a female, she acquired the property in lieu of maintenance and continued to be in possession of it till the commencement of the Act and thereafter, then it would be her absolute property.

15. The only other question that remains for consideration is whether Exhibit B-67 which was a registered will propounded by Subbammal creating a vested interest in defendants 1 and 2 is valid. A hesitant argument was addressed by the learned Counsel for the appellant that the will has not been properly proved. The will is a registered will. D.W.3 was the attestor of the will. D.W.2 who was the Advocate's clerk came and deposed that the will was prepared under instructions from Subbammal and that his master drafted the will after having advised her that by reason of the Hindu Succession Act, she became an absolute owner of the property and she had, therefore, the capacity to execute the will in the manner she desired. Nothing is said about D. Ws. 2 and 3 excepting a bare suggestion that the draft said to have been prepared has not been produced. Whatever may be the force of that contention, in cases where an unregistered will is propounded for acceptance by a civil Court, that would not stand in a case where a registered will is brought into existence and that is the subject-matter of interpretation. We can fairly assume that in the case of a registered will, Subbammal had the requisite testamentary capacity, she went to the Registrar's office and got the will registered after having proved it before a public officer that the thumb-impression affixed to the will was hers, and so on. Besides the normal inference that registered wills have a greater force in the matter of prompting the Courts to accept and avoid any suspicion about it, in the instant case the attestor also has been examined and the learned Judge, after considering their evidence, found that the will was properly executed in due form and when Subbammal had the requisite testamentary capacity to do so. One other factor is that Subbammal lived for 8 years thereafter and there was no controversy about this will at all. We accept the findings of the trial Court that Subbammal executed the will voluntarily as a free agent, when she was in a sound disposing state of mind and Exhibit B-57 is a valid instrument binding on the plaintiff.

The appeal, therefore, fails and is dismissed. There will be no order as to costs.


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