S. Mohan, J.
1. The Plaintiffs, who were unsuccessful in both the Courts below, have preferred this Second Appeal. They filed O.S. No. 61 of 1966 before the Subordinate Judge, Chidambaram, for possession of the suit properties on the following allegations.
2. One Sarangapani Pillai, the adopted son of Arunachalam Pillai of Adoor, died in 1921, when he was very young, leaving behind his widow, Arumbu Animal, and a daughter Valliammai. Prior to his death, he executed an unregistered will on the 10th of February, 1921, whereunder be gave a life estate over the suit properties in favour of Arumbu Animal, and after her life-time, the properties were to be taken in equal moieties by his minor daughter and Balakrishna, the brother of the testator. The will further recited that in the event of Valliammai dying without male issues, the heirs of Balakrishna would take the moiety of Valliammai also.
3. One, Sournathachi filed O.S. No. 750 of 1922 on the file of the District Munsif's Court, Kattumannargudi, against the widow and daughter of Sarangapani on the foot of a promissory note executed by Sarangapani, for the recovery of a sum of Rs. 2,500. In that suit, Balakrishna was also impleaded as a party-defendant. The widow and the daughter contested the suit stating that the promissory note was a forgery. While Balakrishna proclaimed the will, for the first time, he set up the defence that as per the terms of the will, he was not liable. Though that suit was decreed by the trial Court, in appeal, it was dismissed. In the meanwhile the widow and the daughter, having become aware of the will of Sarangapani, filed O.S. No. 255 of 1923 before the District Munsif's Court of Kattumannargudi for a declaration that the will was a forgery and that it would not alter the right of succession to the estate of Sarangapani. In that suit, a compromise was entered into on 27th of July, 1924 (Exhibit-A-4), whereunder Balakrishna relinquished his half share in the estate and it was stipulated that the widow should enjoy he property for life, as a widow's estate, without any powers of alienation, and after her, her daughter should enjoy the same, as a daughter's estate, without powers of alienation and the male heirs of the daughter will take the properties absolutely, after her life time, and if the daughter leaves no male heirs, Balakrishna's heirs would take them absolutely.
4. The daughter of Valliammai, died in 1940 without any issues. Therefore, Arumbu Animal took in adoption the first defendant, Venugopal, on 3rd November, 1947 and executed a deed of adoption, which was registered (Exhibit B-l). Balakrishna died on 8th January, 1963. On 7th May, 1966, Arumbu Ammal executed a deed of settlement in favour of her adopted son conveying some items of the properties under Exhibit B-2 and put him in possession. She executed a will (Exhibit B-3),on 9th May, 1966 bequeathing all her movables and outstandings and also the properties not covered by Exhibit B-2, in favour of the adopted son. The said adopted son is the first defendant. Arumbu Ammal died on 16th May, 1966. Thus, the first defendant Venwgopal became entitled to all the properties and he is in possession of the same through the tenants, defendants 2 to 6.
5. Plaintiffs 1 to 3 are the daughters and the 4th defendant is the widow of late Balakrishna, the natural brother of Sarangapani. It is their contention that under the compromise decree, Exhibit A-4, Arumbu had only a limited estate. Therefore, on her death, they would be entitled to the suit properties. The settlement deed and the will, Exhibits B-2 and B-3, cannot convey any valid title in favour of the first defendant, and by reason of Central Act XXX of 1956, Arumbu does not become a full owner. Hence, the suit.
6. The first defendant, the adopted son raised inter alia the following contentions.
7. The will of Sarangapani, dated 10th February, 1921 is a forgery. The compromise was brought about by fraud, and undue influence, and, therefore, not binding. Assuming that the compromise was binding, it only re-affirmed the provisions of the will and consequently in view of Section 14 (1) of Central Act XXX of 1956, she became a full owner of the estate, which she could validly convey in favour of the first defendant and this is what she did under Exhibits B-2 and B-3. Therefore, his title to the properties cannot be impeached, and he was validly in possession through his tenants.
8. The tenants, viz., defendants 2 to 6 raised the plea that they were entitled to protection under the Tamil Nadu Cultivating Tenants Protection Act (Tamil Nadu Act XXV of 10,55).
9. The learned Subordinate Judge found that the will dated 10th February, 1921 is true, the compromise decree in O.S. No. 255 of 1963 is binding on the widow, Arumbu, and what was given to her under that compromise was a widow's estate, which became enlarged into an absolute estate by virtue of Section 14 (1) of Act XXX of 1956, and therefore, she had every right to execute the settlement and Will, viz., Exhibits B-2 and B-3. Consequently the first defendant had valid title and his possession could not be interfered with. On this reasoning the suit was dismissed.
10. Thereupon, A.S. No. 50 of 1968 was filed before the District Judge of South Arcot at Cuddalore, where in the findings of the trial Court were confirmed. Hence, the present second appeal.
11. Mr. M.S. Venkatarama Iyer, argues, the summary of which is as follows:
(1) The construction placed by both the Courts below on Exhibit A-4 is totally incorrect.
(2) On a reading of the entire compromise, together with the clauses under the Will, dated 10th February, 1921, viz., Exhibit A-1, it would be clear that what Arumbu got was a restricted estate, in which event, Section 14 (2) of the Hindu Succession Act, 1955 (hereinafter referred to as the Act) alone would come into play.
(3) Once the Will has been found to be true, as has been done in the instant case, by both the Courts below, the possession of Arumbu must relate only to the Will dating back to the date of the death of the testator.
(4) It is only by virtue of the compromise that Arumbu got this estate, and that being the foundation of her right, title and interest, it cannot be said that Section 14 (1) would apply and her estate would become enlarged into an absolute one.
(5) This being a compromise the restrictions contained under Sections 10 and 11 of the Transfer of Property Act, cannot apply.
12. Mr. K. Gopalachari, learned Counsel for the respondents, in meeting the above, raised the following contentions, which in brief, could be noted as follows:
(1) The compromise, Exhibit A-4, recognises only the pre-existing rights of the widow and it does not, in any manner, restrict her rights. (2; The intention in the minds of the parties in 1924 should be ascertained, in order to find out the true effect of the compromise. (3) Merely because the Will has been upheld in these proceedings, it would not mean that the possession of the widow is traceable to the Will, and, therefore, her rights would remain unaffected. (4) If what Arumbu got under Exhibit A-2 was a widow's estate, by virtue of her being in possession, it would become enlarged into an absolute estate, by the operation of Section 14 (1) of the Act.
13. I will take up these points seriatim. The first question that arises for determination is the construction to be placed on
Exhibit A-4, in order to appreciate the scope and effect of the compromise. The provisions of the Will in question, Exhibit A-1, dated 10th February, 1921 may be taken note of. That reads:
It would be seen that Sarangapani, under this Will, gave a life estate to his wife and after her life, the daughter Valliammai, and brother Balakrishna were conferred an absolute right and in the event of Valliammai dying without any male issues, the entire property would devolve absolutely on Balafcrishna. It was this Will, which was challenged in O.S. No. 255 of 1 1923. That suit, as seen above, resulted in a compromise which I extract in full, for a proper appreciation of the respective contentions:
14. The points that require to be noted concerning this Exhibit (4) are : (1) This compromise is in accordance with the provisions of the Will. That is clear because it states (2) Broadly speaking, it confers a life estate, without powers of alienation. I say 'broadly speaking', since the entire controversy centres round as to what is the nature of the estate conferred on her.; (3) Balakrishna relinquishes his rights made available under the Will, after the lifetime of Arumbu. (4) Valliammai, the daughter is confered a 'daughter's estate without powers of alienation; (5) In the event, the daughter died without male issues, Balakrishna would take the property absolutely.
15. The fervent plea of Mr. K. Gopalachari is, having regard to the law that was prevalent in 1924 and further, having regard to the fact that the compromise was drafted by men of law, the 'widow's estate'' must be given the proper meaning. According to him, under the law, as it stood then, the widow took a life estate without powers of alienation, excepting for necessities, and it was this, which came to be incorporated, stating : Whatever restrictions, the widow had with regard to the alienations under Hindu Law, they alone would prevail and it cannot be contended that under no circumstances, the widow could alienate, even for necessities, since it is said that 'widow's estate
16. The forceful reply of Mr. M.S. Venkatarama Iyer is that such a construction ignores very many aspects.
(i) Exhibit A-1 is the fore-runner (ii), The language employed is which means 'no alienation whatsoever'. (iii) Vested remainders have been conferred upon the daughter and also Balakrishna.
17. On a careful consideration of the above arguments, I am inclined to hold the Mr. M.S. Venkatarama Iyer is right in his submissions, because the construction sought to be placed by Mr. Gopalachari would be only highlighting the rights of Arumbu, while all the other provisions would be rendered nugatory. It is not necessary, as Mr. Gopalachari contends, that the widow should stand benefited by the compromise. Even, assuming that to be so, the benefit that is conferred on her is the vested reminders in favour of the daughter and Balakrishna. As is well-known in a compromise, there is always give and take. Balakrishna relinquished his rights obtained under the Will, Exhibit A-1, while Arumbu was content with a life estate, without any power of alienation (including for legal necessities). In my view the accent should be on the words and the proper meaning to the ascribed to the words 'widow's estate is enjoyment for life. This conclusion is fortified since as seen above, the compromise itself was in harmony, or in accordance with the provisions of the Will. Therefore, the conclusion, to my mind is that what was conferred on Arumbu was only a restricted estate, as otherwise, if it were to be held that it is a widow's estate, it would defeat the latter clauses in the compromise relating to conferment of remainders.
18. If this be the true position, what is the correct law that has to be applied, is the next question that has to be considered. Section 14 of the Act states as follows:
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as 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.
Whatever doubts were there earlier, the law is well-settled in the present day, that if the compromise, or the award, or the deed, etc., is the source or the foundation of the right of the widow, restrictions prescribed thereunder would govern and to such a case, Section 14 (2) alone would apply. On the contrary, if what the compromise, award or the document does is nothing more than to restate the law, as it then stood, the intervention of the same will not affect the rights of the widow, in which event, Section 14 (1) will apply. It is also well-settled that Section 14 (2) is in the nature of an exception to Section 14(1). I need hardly refer to any authority, excepting to quote the following passage from Mulla's Hindu Law (Fourteenth Edition--1974) at page 9O6:
Thus for instance if the female Hindu had prior to the date of the decree title to the property and what the decree really does is to declare that title she cannot be said to have acquired the , property under that decree. In order to invoke the application of this subsection it is necessary to satisfy the essential condition that the instrument which limits or restricts the estate should itself be the source or foundation of the female's title to the property. If she had an existing interest in the property, the inter-position of any instrument will not affect the operation of Sub-section (1). The instrument, for instance, may be a decree or order or deed or partition but if the pre-existing right was there, Sub-section (2) cannot have the effect of taking the property out of the coverage of Sub-section (1).
and the ruling in Badri Pershad v. Kanso Devi : 2SCR95 , wherein it was held at page 1966:
Sub-section (2) of Section 14 is more in the nature of a proviso or an exception to Sub-section (1). It can come into operation if acquisition in any of the methods indicated therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of the property.
19. In this case, therefore, under the compromise, Exhibit A-4, Arumbu took a restricted estate. She cannot, therefore, put forth the plea that she is absolutely entitled to the properties as per Section 14 (1) of the Act. Nor, is it open to her to put forth the contention that she would not be bound by the restrictions prescribed under the compromise. The compromise, without declaring her pre-existing title, brought about the agreement between the parties conferring certain rights mentioned under that compromise, in which event, it would be binding upon the parties thereto.
20. Similar is the case of Seetharama Pillai v. Seyu Pillai (1970) 83 L.W. 226, which decision, I have considered in detail under an earlier decision of mine in Second Appeal No. 671 of 1972, dated 4th March, 1975, Mgarathnammal and Anr. v. Peria Munuswamy Goundar and 4 others S.A. No. 671 of 1972. The decision relied on by Mr.K. Gopalachariin B.B. Patil v. Gangabai : AIR1972Bom16 , will be of no assistance to him.
21. In the final analysis, what emerges is, that under the compromise Arumbu took a life estate without any power of alienation whatsoever, and after her demise, the vested remainders fell upon the daughter and Balakrishna, and if this was the nature of compromise entered into between the parties, in 1924, the fact that she continued in possession even after the passing of the Hindu Succession Act, 1956, would not enable her to contend that Section 14 (1) would apply. In my view, there is no necessity to cite much case law on this aspect and there is a pre-ponderence of the same, since as laid down by the Supreme Court in Badri. Pershad v. Kanso Devi : 2SCR95 , the section has to be read as a whole and it would depend on the facts of each case whether the same is covered by the first sub-section or Sub-section (2).
22. This is more or less a case like Karmi v. Amru : AIR1971SC745 , where a widow succeeded to the properties of her deceased husband on the strength of a Will executed by her husband, under which only a life estate was conferred, it was held that she could not claim to have become an absolute owner under the Act, and this ruling also supports the submission of Mr. M.S. Venkatararoa Iyer, learned Counsel for the appellants.
23. The proper test is in the words of the Division Bench in Hussain Uduman v. Venkatachala Mudaliar : AIR1975Mad8 :
Before applying Section 14 (2) of the Hindu Succession Act, the proper question to ask is : does the instrument or decree prescribe a restricted estate in the property or does it merely acknowledge and recognise (and not prescribe) a pre-existing estate upon which the Hindu Law had imposed a restriction, because the holder or the estate was a woman.
24. In the instant case, my answer is that the compromise decree under Exhibit A-4 does prescribe a restricted estate and it does not acknowledge or recognise her preexisting right, and therefore, Section 14 (2) alone applies. The Courts below are wrong in holding that by application of Section 14 (1), the widow's estate became enlarged into an absolute one.
25. The next aspect to be considered is what is the effect of the Will being upheld under this proceeding. For my part, I am unable to agree with the contention of Mr. K. Gopalachari that because the widow is not a party to the proceedings, her rights would remain unaffected, since this contention ignores the fact that Venugopal (the first defendant) claims under the Will. The effect of the Will being upheld would mean to relate the possession of Arumbu to this Will since the Will dates back to the death of the testator, Sarangapani. In such an event, it is not open to her to set up a title other than the one under the Will. Mr. M.S. Venkatarama Iyer is, therefore, right in referring to and relying on the passage occurring in Chitaley and Rao, Limitation Act, 1963 4th 1965 Edition--Volume II) at pages 1261-1262.
It is also a fundamental principle that where possession can be referred to a lawful title, if will not be considered to be adverse. The reason is that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another title. The leading case on the point is Thomas v. Thomas (1855) 110 R.R. 107 : 25 L.J.Ch. 159, decided by the Court of Chancery in the year 1855. In that case X was entitled under the marriage settlement of his father and mother to certain real estates upon the death of his mother, to whom a life estate had. been given therein. The mother died in I832. X attained majority in 1836. The father remained in possession of the settled estate till his death in 1852. The question was whether the father's possession was adverse to X or whether it must be deemed to have been as guardian of X Wood, V.C., observed as follows:
But there is another principle which affects this case, namely that possession is never considered adverse if it can be referred to a lawful title. An important authority on this point is Doe d Milner v. Brightwen (1809) 10 East 583 : 103 E.R. 897, where a party who had taken possession of copy holds on the death of his wife, by an adverse title, lived more than twenty years afterwards and it was then found that there was an old custom of the manor by which he had a right to curtsey, and therefore his possession was referred to that title which was consistent with the title of the other party.
In this case a father, who had several children entitled to estates on the death of his wife, all the children being under age at that time, entered upon the estates... .I think I must reasonably infer that the entry was an entry on their behalf and as their guardian and was totally different from the case of a mere stranger entering upon the property under similar circumstances. Then it is said that though the entry might have been lawful in its inception the retention of the property after the children attained twenty-one barred their rights tinder the statute of limitation ; but I think the better and sounder view here is that, if this gentleman entered as guardian this Court would never allow him to set up any other title to the estate.
This is what Grose, J., held in Dae v. Brightwen 103 E.R. KB.D.897 :
On the part of the defendant, who claimed under the present Lord Hare-wood, it was contended, 1st, that there had been an adverse possession from the death of Mrs. Lascelles in 1764, upwards of 4O years. To this it was answered, that by the custom of the manor the husband was entitled to hold the copyhold tenements of his wife, after her death, for his life, in the nature of tenant by the curtesy; and that Lord Harewood having survived his wife, and lived till 1795, there was no possession adverse to the title of the lessor of the plaintiff till after that time; inasmuch as the heir at law of Mrs. Lascelles could not recover the possession of the premises while her husband's estate by the curtesy existed....In the present case Mrs. Lascclles's title was as heir to the three coparceners; her title was compelete without admission, to all purposes, except as against the lord, with respect to his right to his fine; and therefore we think that the entries given in evidence were sufficient to support the custom of tenancy by the curtesy, without the qualification of admittance of the wife, inasmuch as her title was such as not to require admittance to perfect it.
26. Lastly, the applicability of Sections 10 and 11 of the Transfer of Property Act may be referred to. I am afraid, on this aspect of the matter, the Courts below have misdirected themselves. Section 10 relates to a transfer of property with a condition restraining alienation while Section 11 speaks of restriction repugnant to an absolute interest. In this case neither the Will, Exhibit A-1, nor the compromise, Exhibit A-4 confer, an absolute estate. Even that apart there is no scope for applying these sections to a compromise, since a compromise is not a transfer.
27. For all the above reasons, I come to the conclusion that the findings of both the Courts below are incorrect and I, therefore, set aside the same. The Second Appeal will stand allowed with costs. There will be a decree in favour of the plaintiffs, as prayed for. However, I grant leave.