A. Alagiriswami, J.
1. The defendant in the suit is the appellant. There were three brothers : Ponnuswami, Munuswami and Govindarajulu. They were the sons of one Thandavaraya. On 19th June, 1917, Thandavaraya, his two sons, Munuswami and Govindarajulu and Manonmani, the widow of Ponnuswami, entered into a partition which is evidenced by Exhibit A-1. The defendant is the son of Munuswami. Govindarajulu executed a will Exhibit A-2 on 12th August, 1931, in favour of his sister, Ammakannu, who settled the properties on the plaintiff under Exhibit A-3, dated 25th January, 1960. The question that arises is as to the effect of the partition deed Exhibit A-1.
2. According to the plaintiff Govindarajulu got a vested remainder in respect of the properties given to Manonmani under Exhibit 1 and therefore the plaintiff is entitled to the properties settled on him. According to the defendant, however, the effect of Exhibit A-l is to give an absolute right to Manonmani and he is entitled to the properties as Manonmani's husband's heir.
3. To Exhibit A-l, as already mentioned, Thandavaraya, his two sons, Munuswami and Govindarajulu, and Manonmani, the widow of a predeceased son, were parties. The defendant contends that the property has been allotted to the four people for their shares and they got absolute title. We are concerned only with the question as to what Manonmani got under this document. I am unable to accept the argument on behalf of the defendant that Manonmani got an absolute title. The document merely says that Nos. 3 and 4 to that document i.e., Munuswami and Govindarajulu, could sell or gift the properties which fell to their share. It does not say that there is no objection to any of the parties to the document alienating the properties which fell to their respective shares. This is clear also from the fact that Thandavaraya and his wife were merely to enjoy the properties given to them for their life, and Munuswami and Govindarajulu were to pay the kist on those lands. The further provision that Nos. 3 and 4, that is, Muniswami and Govindarajulu were to have separate pattas also emphasises the fact that after the lifetime of Thandavaraya as well as of Manonmani, it is Govindarajulu and Munuswami that got the properties. There is no provision for transfer of patta either to Thandavaraya or to Manonmani. In respect of the properties given to Manonmani the provision was that she was to enjoy the properties for her life and that after her Govindarajulu and Munuswami were to get these properties. The fact that in respect of the properties given to Thandavaraya as well as to Manonmani, it is provided that Govindarajulu and Munuswami were to perform their funeral ceremonies and take their properties does not mean that it is a condition precedent to their taking their share and that therefore Govindarajulu having died before Manonmani would not be entitled to a share in the properties given to Manonmani. Quite clearly what was created under this document in favour of Thandavaraya and Manonmani was merely a life interest and there was a gift over in respect of both those properties in favour of Govindarajulu as well as Munuswami. Therefore what Munuswami and Govindarajulu got was a vested remainder and Govindarajulu was competent to execute the will, Exhibit A-2.
4. In Narayana v. Subbayya : AIR1929Mad32 , it has been held that where a person made a disposition of property in favour of his wife by means of a will and the will provided that the son should get the property after performing the obsequies of the mother, in whose favour the disposition was made and no provision was made in the will for the enjoyment of the property in case the son should die before performing the obsequies it was held that the condition of performing the obsequies was not a condition precedent and the son got a vested interest in the property.
5. I do not think that the decision in Perianayakiamma v. Ratnavelu Mudaliar : AIR1925Mad61 , is of any help to the defendant. The provision of the will in that case was quite different. There the testator gave certain properties to his daughters providing that they should have no power to make a sale, gift, mortgage etc. and that after them their issues shall use and enjoy them from son to grandson with power of gift mortgage, exchange and sale. It was therefore held that a son of one of the daughters who had predeceased his mother took nothing under the will. The interpretation placed upon the document was that it was a condition precedent to any estate vesting in the daughter's son that he should survive his mother.
6. On the other hand in Pavani Subbamma v. Anumala Rama Naidu : (1937)1MLJ268 , one ' B' left a will at his death disposing of his properties by which the widow should, enjoy the properties and after her lifetime the properties should be taken by the son's daughter and the daughter's. It was held that since in the will the gift over to the grandchildren was of the entire properties and not a mere gift by way of defeasance it indicated that the prior gift in favour of the widow was only of limited interest and that the provision in the will giving express powers to the grandchildren of gift, sale etc., undoubtedly would indicate the intention of the testator to draw a distinction between the powers of the widow and those of the grandchildren and therefore the widow took only a limited interest.
7. In Ramachandra v. Jagadiswara : AIR1937Pat247 , the document executed by a husband provided as follows 'that property shall devolve upon ' B' or his legal heir and ' B' or his legal heir shall become the absolute owner of my property on the death of my wife.' It was held that the interest of ' B' was contingent and not vested and came to an end on his death during the lifetime of the widow. This is because he got the right only on the death of the widow and there was no limitation on the interest that the widow got unlike the present case where the widow's interest is made a clear life interest.
8. In Subramania Chettiar v. Lakshman Chettiar : (1940)1MLJ817 , it was held that where there is a life estate given to a person the remainder vests on the death of the testator in the remainder-man unless there are very clear words to show that the testator had a contrary intention on the language used in the will. It is thus clear that what Manonmani took was only a life interest and Govindarajulu and Munuswami got a vested remainder. Nor can I accept the argument that on Govidnarajulu's death Munuswami got the whole of the property on the ground that both of them got with the right of survivorship inter se.
9. The next argument on behalf of the defendant was that Manonmani got a widow's estate under Exhibit A-1, and that as a result of the Hindu Succession Act, 1956 the limited interest which she got under Exhibit A-l became an absolute interest and that therefore the plaintiff would not be entitled to get the suit property. This contention again is without substance. The effect of Section 14 of the Hindu Succession Act has been very clearly discussed by Natesan, J., in Thatha Gurunadha Chetti v. Thatha Navaneethamma (1967) 1 M.L.J. 454 : I.L.R. (1968) Mad. 56, in which appears the following paragraph:
No doubt property given to a female in lieu of maintenance either before or after the Act, becomes her absolute property under Sub-section (1). Sub-section (2) has engrafted an exception and while considering Sub-section (1), Sub-section (2) cannot be overlooked. Where the acquisition by the female of the property is in any of the modes prescribed in Sub-section (2) and the acquisition is itself of a restricted estate, such an estate is not enlarged. Sub-section (2) makes it clear that it is not the intention of the Legislature to grant full ownership to a Hindu female who gets the property under a gift, will, or other instrument and the instrument itself in express terms gives her only a limited right or restricted estate in the property. All the clauses of Section 14 must be read and interpreted one with the other, with Section 14 and with the other provisions of the Act, and thus read, clearly Section 14 is not intended to override lawful terms in contracts and bargains or bequests or gifts. Certainly, it is not and it cannot be contended that the object of Section 14 is to put a Hindu female in a better position than a Hindu male where the gift or bequest or other instrument as a matter of construction of the document confers only a restricted estate. Section 14 (1) of the Act only removes disabilities imposed by the personal law of the Hindus as to the quality or the extent of the estate taken by the female in certain circumstances, generally found in inherited properties, properties given to her in partition and by interpretation in properties devolving on her without specification of her estate therein. The Act is both an amending and codifying Act and in the definition of property in Section 14 of the Act, it will be seen included not only property in which the female Hindu would have a limited estate but also properties which she would hold as full owner even before the Act. For Sub-section (2) to apply, it is an essential condition that the instrument which limits or restricts the estate should itself be the source or foundation of the female's title in the property. If she has an existing right in the property, the interposition of an instrument will not affect the operation of Sub-clause (1) on the property. If the instrument, be it a decree or order or award, or deed of partition merely declares the preexisting title of the Hindu woman to any particular property Sub-section (2) would not take the property out of the coverage of Sub-section (1). Where a female Hindu takes property under an instrument of the kind specified in Sub-section (2) and not by virtue of any antecedent legal right or title in the property, any restriction placed on the property would have its full effect.
10. Again at page 458 occurs the following paragraph:
The first defendant in this case lost her husband prior to the Hindu Women's Right to Property Act, 1937. The only right that she then had under the law was a right to be maintained out of the family properties. She had no title and no right to share in the family properties. The sons could have contented themselves with making regular money payment and if required charging certain properties for the maintenance amount. But when they partitioned the estate among themselves, they set apart property giving her a life estate pure and simple in the property, the property to revert to the sons on her death. The estate given to the widow for her maintenance was restricted to a life estate. She was not granted any powers of alienation. Her right was limited to the enjoyment of the income from the property. What she got under the partition was not the qualified estate of a Hindu female known as woman's estate or widow's estate. She was not even a party to the partition deed as partition could be had only between persons having pre-existing proprietary rights in the property. It follows that the estate given to the widow under the instrument of partition fell under Section 14 (2) of the Act, and Section 14 (1) did not operate on the estate and make the widow a full owner. In the circumstances, any alienation by the widow cannot enure beyond her lifetime.
11. In the present case, also Manonmani lost her husband prior to the Hindu Women's Right to Property Act. The only right she had then was a right to be maintained out of the family properties. She had no title and no right to share in the family properties. Her brothers-in-law and father-in-law could have contented themselves with making regular money payments and if required charging a certain property for maintenance. But when they partitioned the estate among themselves they set apart a property giving her a life estate pure and simple, the property reverting to the sons on her death. The estate given to the widow for the maintenance was restricted to a life estate. She was not granted any powers of alienation. Her right was limited to the enjoyment of the income from the property. What she got under the partition was not the qualified estate of a Hindu female known as a widow's estate or a woman's estate. It follows that the estate given to the widow under Exhibit A-1 fell under Section 14 (2) and Section 14 (1) did not operate on. the estate and make the widow a full owner. The fact that in the present case Manonmani was also a party to the document would not make any difference to this result.
12. Thus the judgment of the Courts below is correct and this second appeal is dismissed with costs. No leave.