V. Ratnam, J.
1. The second defendant, who lost in the Courts below, is the appellant in this second appeal, which arises out of a suit instituted by the respondents herein, for a declaration that they are entitled to the western portion of the suit property delineated M, N, O, P in the plaint sketch and also for the consequential relief of restraining the appellant from in any way interfering with the respondent's possession and enjoyment of the said property and also for recovery of possession of the portion marked A, B, C, D in the plaint sketch from the appellant.
2. According to the respondents the suit property which is a house in Paramakudi belonged to one Alagu Chettiar. Alagu Chettiar died leaving behind him, two sons, Vellaichami Chettiar and Chellam Chettiar. The first son Vellaichami Chettiar had two wives and through his first wife, he had a son by name Krishnan Chettiar and through his second wife, Meenakshi, he had another son of the name of Nataraja. Vellaichami Chettiar died on 3rd August, 1928, while Chellam Chettiar died on 25th February, 1938. Krishna Chettiar, son of Vellaichami Chettiar through his first wife, pre-deceased his father and died on 7th July, 1924, leaving behind him his widow Soundirathnammal (first defendant in the suit) and a daughter Raj Ammal (the second defendant in suit), Natarajan son of Vellaichami Chettiar, through his second wife Meenakshi, died on 15th January, 1969, leaving behind him his widow Lakshmi (first plaintiff) and a daughter the second plaintiff. On 4th November, 1924, there was a partition between Vellaichami Chettiar and his brother Chellam Chettiar, according to which, Chellam Chettiar and his branch were allotted the eastern portion of the suit property and other properties, while the western portion of the suit property was allotted to the branch of Vellaichami Chettiar. Inasmuch as Krishnan Chettiar, son of Vellaichami Chettiar, through his first wife, had pre-deceased his father, the western half of the suit property marked as M, N, O, P devolved upon his only surviving son Nataraja. Nataraja thus become exclusively entitled to M, N, O, P portion and after the death of Chellam Chettiar in the year 1938, the eastern portion of the suit property devolved upon his four daughters and as a result of a settlement deed and a family arrangement. Nataraja became entitled to the eastern portion also. Thus Nataraja, according to the plaintiffs, became entitled to the entirety of the suit property though the present dispute is in relation to the western portion of the property marked as M, N, O, P as stated earlier. The case of the plaintiffs was as the husband of the first respondent viz., Krishnan Chettiar died in 1924, the first defendant was only entitled to be maintained from out of the family properties and she along with her daughter, the second defendant had been living in the family in the suit properties along with Nataraja and his family. The further case of the plaintiff was that it was Nataraja, who had celebrated the marriage of the second defendant also. The plaintiffs claimed that on 1st June, 1951, when Nataraja sold one of the joint family properties, the said document was attested by the first defendant and at that time, a sum of Rs. 825 was paid to her in full quit of her maintenance claim and therefore she was not even entitled to maintenance from out of the joint family properties, though she continued to live even thereafter with the family of Nataraja Chettiar and even after the death of Nataraja Chettiar, she had been living with the plaintiffs. Consequent to the death of Nataraja on 15th January, 1969, his widow the first plaintiff and his daughter the second plaintiff had became exclusively and absolutely entitled to the suit property by reason of the provisions of the Hindu Succession Act, and therefore, neither the first defendant nor the second defendant is entitled to any share therein. The first defendant, according to the plaintiffs, started setting up a false claim to the suit properties on the evil advice of the second defendant and her husband and the first defendant according to the plaintiffs, had also executed a will in favour of the second defendant purporting to bequeath the suit property to the second defendant, as if the first defendant was entitled to any rights therein. This will was characterised by the plaintiffs as invalid and not binding upon them as they are absolutely entitled to the property. The first defendant, according to the plaintiffs, fell ill in November, 1972 and she was brought and allowed to stay in a room in the suit property i.e., in the portion marked as A, B, C, D and in order to assert a claim to the suit property. It was under these circumstances that the respondents instituted the suit for a declaration of their title and for other reliefs set out earlier.
3. The defendants admitted that the suit property was originally joint family property and that in the partition between Vellaichami Chettiar and Chellam Chettiar the western portion of the suit property was allotted to the branch of Vellaichami Chettiar. The exclusive claim of Nataraja Chettiar by survivorship with reference to the western portion on the death of Vellaichami Chettiar and Krishnan Chettiar was denied. According to the defendants, it was further false to allege that after the death of Krishnan Chettiar, the 1st defendant was only entitled to be maintained from out of the joint family properties and that she was paid a sum of Rs. 825 in full quit of that claim. The attestation in the sale deed attributed to the first defendant was stated to be at the instance of her brother-in-law Natarajan without being aware of the contents of the sale deed and the implications thereof and therefore by such an attestation, her right to the suit property cannot be said to have been lost. The first defendant claimed that after the death of her husband, she was entitled to a moiety of the suit property and on the coming into force of the Hindu Succession Act, 1956, the defendants became absolutely entitled to the suit property i.e., the western portion. Therefore, the first defendant had executed a will in favour of her daughter the second defendant bequeathing her right in the suit property in favour of the second defendant. The claim of the plaintiffs that Nataraja had arranged and also celebrated the marriage of the second defendant was refuted. The marriage expenses, according to the first defendant were met out of the income from the family properties. The first defendant claimed that after the death of her husband, she as well as her daughter became entitled to the suit property and that she had also been residing in a portion of the suit property in her capacity as a co-sharer. Regarding the eastern portion of the suit property, the first defendant claimed to be entitled to it only as the head of the joint family. The first defendant thus claimed that she was entitled to a moiety in the entirety of the suit property and therefore, the claim of the plaintiffs for a declaration of title and also for an injunction against her, a co-sharer, is unsustainable and therefore, the suit was liable to be dismissed. The second defendant was stated to be an unnecessary party to the suit as, her rights under the will of the first defendant will arise only after the death of the first defendant.
4. An objection was also raised with reference to the valuation and the court-fee. Under the aforesaid circumstances, the defendants prayed for the dismissal of the suit.
5. During the pendency of the suit, the first defendant died and consequently the second defendant, her daughter, had been recorded as the legal representative of the deceased first defendant.
6. The learned Subordinate Judge, Ramanathapuram at Madurai, who tried the suit held that the suit property belonged to the plaintiffs and that the first defendant was not entitled to any share therein. Consequently, the second defendant was held not entitled to any right under the will executed by the first defendant. On these findings, the suit was decreed as prayed for in respect of M, O, P portion. The suit in so far as it related to the recovery of possession of the A, B, C, D room against the second defendant was also decreed. Aggrieved by this, the second defendant preferred an appeal in A.S. No. 170 of 1975, District Court, Ramanathapuram at Madurai. The learned District Judge held that the first defendant was merely residing in the suit property as a female member of the family and therefore, cannot invoke the benefits of the provisions of Section 14(1) of the Hindu Succession Act. On that finding, it was held that the second defendant would not be entitled to any rights under the will. Consequent to these findings, the judgment and decree of the trial Court were confirmed and the appeal was dismissed.
7. In this second appeal the learned Counsel for the appellant strenuously contends that the first defendant was residing in the suit house in lieu of her maintenance and this right got enlarged into an absolute one by virtue of Section 14(1) of the Hindu Succession Act. On the contrary, the learned Counsel for the respondents contends that the right of the first defendant who became a widow prior to 1937 to be maintained is not a jus in rent but is only jus ad rem and therefore, in the absence of any allotment of property in lieu of her claim for maintenance, the first defendant cannot avail herself of the benefits of the enlargement under Section 14(1) of the Hindu Succession Act. The only question that has to be decided in the second appeal is whether the first defendant was entitled to any limited interest in the property and was in possession thereof in that capacity in order that she may invoke the benefit of Section 14(1) of the Hindu Succession Act. In this connection, the learned Counsel for the appellant relied on the judgment of a Division Bench of the High Court in Muthu Bhattar v. D. Chokku Bhattar : AIR1976Mad8 . In that case one Subbammal, a pre-1937, widow was in possession of one of the family houses ever since the death of her husband by virtue of an arrangement as regards her maintenance as a widow in the joint family. Thereafter, a suit was filed by her for maintenance claiming a sum of Rs. 75 towards food and clothing. Taking into account the circumstance that she was in possession of a family house for residence, the learned District Munsif awarded a sum of Rs. 25 per month for maintenance and this was also affirmed on appeal excepting for an increment in maintenance by Rs. 5. Subbammal continued to reside in the family house till she died on 3rd September, 1965, after the coming into force of the Hindu Succession Act (XXX of 1956). Subbammal, claiming to have acquired an absolute interest in the house by virtue of Section 14(1) of the Hindu Succession Act (XXX of 1956), executed a will bequeathing the property in favour of defendants 1 and 2, who were her close relations. After the death of Subbammal, the reversioner filed a suit for a declaration of his title to the suit property and restraining the defendants from interfering with his possession. The defence was raised that Subbammal acquired absolute right to the suit house by reason of Section 14(1) of the Act and that the will executed by her was valid and therefore, they were entitled to the suit property. It was in this connection that the learned Judges stated that the right of maintenance consisted of three components, viz., the claim for food, attire and shelter and that the possession of the property by Subbammal was in lieu of her right of maintenance and it had enlarged into an absolute right under Section 14(1) of the Hindu Succession Act. Apart from the circumstance that the decision in Muthu Bhattar v. Chokku Bhattar : AIR1976Mad8 , has not yet become final since an appeal before the Supreme Court in C.A. No. 256 of 1977 is now stated to be pending, tKY50612-14 here are at least three distinct features in that case, which are totally absent in the present case. Firstly, the occupation of one of the family houses by Subbammal is stated in the judgment to be pursuant to an arrangement with the other members of the family. Secondly, it is also stated that Subbammal was in possession of the house in question pursuant to the arrangement in lieu of maintenance. Thirdly, the circumstance that Subbammal acquired the property in lieu of maintenance was not disputed seriously. Under the aforesaid circumstances, this case, in my view, can have no application to the facts of the present case. It is not the case of the first defendant that as a result of any arrangement in recognition of her right to maintenance, she was put in possession of any portion of the suit property. No such arrangement is either pleaded or proved. In fact, the possession of the property was only with Nataraja Chettiar and the first defendant, as the widow of the brother of Nataraja Chettiar, viz., Krishnan Chettiar, stayed there merely as a member of the family and not pursuant to any arrangement and allotment of any property to the first defendant in recognition of her rights of maintenance against the property and in the avowed exercise of her right of maintenance or in lieu thereof. Indeed, even the first defendant did not plead that she was given any part of the property in MNOP in recognition of any rights of hers.
8. Krishnan Chettiar having died on 7th July, 1924, the first defendant had only under the Sastric Hindu Law, as a widow, a right to be maintained out of joint family property. In Vaddeboyina Tulasamma and Ors. v. Sesha Reddi : 3SCR261 , Bhagwati, J., points out that the right of the widow to be maintained is of course not a jus in rem since it does not give her any interest in the joint family property, but it is certainly jus ad rem, i.e., a right against the joint family property. It is also further pointed out that when specific property is allotted to the widow in lieu of her claim for maintenance the allotment would be in satisfaction of her jus ad rem namely the right to be maintained out of the joint family property. In the instant case, the right of the first defendant was only a right against the joint family property for maintenance and in the absence of any allotment of specific property, her right could not be equated to a jus in rem. It is necessary to bear this distinction in mind in order to appreciate the contention of the learned Counsel for the respondents that the right of the first defendant to maintenance did not give her any interest in the joint family property. The learned Counsel for the respondent further placed reliance on the judgment of the Supreme Court in Eramma v. Veeruppana and Ors. (1967) 1 S.C.J. 746 : : 2SCR626 . In dealing with the question of the scope of the enlargement of the interest contemplated under Section 14(1) of the Hindu Succession Act, Ramaswami, j. summed up the position thus:
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 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 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 the estate heritable by her own heirs and not revertible to heirs of the last male holder.
It is clear from the above observation that the widow must have acquired some kind of title, however, restricted it may be and whatever its nature may be. In the absence of acquisition of any such interests in the property, the mere residence by a pre-1937 widow in the family residential house as a member of the family cannot enable her to claim that she had acquired a right with reference to the residential house which would enable her to claim the benefit of an enlargement of that interest by the operation of Section 14(1) of the Act. The learned Counsel for the respondents further invited my attention to the decision of the Supreme Court in Mangal Singh and Ors. v. Shrimati Ratno and Anr. : 3SCR454 , Bhargava, J., observed after referring to Eramma v. Veerrupana and Ors. : 2SCR626 , that the case clarified the expression 'possessed by' as not intended to apply to a case of mere possession without title and that the legislature intended this provision for cases where the Hindu female possesses the right of ownership of the property in question. It was also further pointed out that even mere physical possession of the property without the right of ownership will not attract the provisions of this section. To a similar effect is a recent judgment of the Supreme Court in Bai Vajia (dead by legal representatives) v. Thakorabhai Chelabhai and Ors. : 3SCR291 . Dealing with the contention that in order that a Hindu female may be given the benefit of Sub-section (1) of Section 14 of the Act, she must be first a owner, albeit, a limited owner of the property in question and that Tulsamma, in the decision reported in Thulasamma v. Sesha Reddi (1978) 1 S.C.J. 29 : (1978) 1 A.W.R. 6 : A.I.R. 1977 S.C. 1944, not being the owner the sub-section could not have covered her case. Koshal, J., stated thus:
We find that only that part of this argument which is interpretative of Sub-section (1) is correct, namely, that it is only some kind of 'limited ownership' that would get enlarged into full ownership and that where no ownership at all vested in the concerned Hindu female, no question of the applicability of the sub-section would arise.
After referring to the provisions of Section 14(1) and (2) the Supreme Court proceeded to point out at page 1001 thus:
A plain reading of Sub-section (1) makes it clear that the concerned Hindu female must have limited ownership in property which limited ownership would get enlarged by the operation of the sub-section. If it was intended to enlarge any sort of a right which could in no sense be described as ownership, the expression 'and not as a limited owner' would not have been used at all and becomes redundant which is against the well-recognised principle of interpretation of statutes that the legislature does not employ meaningless language.
Again at page 1001 the Supreme Court observed thus:
Limited ownership in the concerned Hindu female is thus a sine qua non for the applicability of Sub-section (1) of Section 14 of the Act, but then this condition was fully satisfied in the case of Tulasamma to whom the property was made over in lieu of maintenance with full rights of enjoyment thereof minus the power of alienation. These are precisely the incidents of limited ownership. In such a case, the Hindu female represents the estate completely and the reversioners of her husband have only a spes successionis i.e., a mere chance of succession, which is not a vested interest and a transfer of which is a nullity. The widow is competent to protect the property from all kinds of trespass and to sue and be sued for all purposes in relation thereto so long as she is alive. Ownership in the fullest sense is a sum-total of all the rights which may possibly flow from title to property, while limited ownership in its very nature must be a bundle of rights constituting in their totality not full ownership but something less. When a widow holds the property for her enjoyment as long as she lives, nobody is entitled to deprive her of it or to deal with the property in any manner to her detriment. The property is for the time being beneficially vested in her and she has the occupation, control and usufruct of it to the exclusion of all others. Such a relationship to property in our opinion falls squarely within the meaning of the expression 'limited owner' as used in Sub-section (1) of Section 14 of the Act. In this view of the matter the argument that the said subsection did not apply to Tulasamma's case (1978) 1 S.C.J. 29 : (1978) 1 A.W.R. 6 : A.I.R. 1979 S.C. 1944, for the reason that she did not fulfil the condition precedent of being a limited owner is repelled.
Therefore, in the absence of any right in favour of the widow in the property and the recognition of such a right and the allotment of property in lieu thereof, the mere possession of the first defendant in the instant case cannot be equated to her having acquired any 'limited interest' in respect of the suit property. The factual finding of the lower appellate Court is to the effect that the first defendant was merely residing in the family house as a member of the joint family after the death of her husband and continued to live so even after the death of Nataraja Chettiar and therefore, mere residence cannot be equated to acquisition by the first defendant of 'limited interest' in the house, which could get enlarged into an absolute interest and could be bequathed by the first defendant in favour of the second defendant. In this view, it must be held that the provisions of Section 14(1) would not assist the appellant to claim benefit of the bequest under the will of her mother, the deceased first defendant. In the result, the decree for recovery of possession and also for injunction passed by the Courts below in respect of the different portions of the property are perfectly correct. The second appeal, therefore, fails and is dismissed. Having regard to the close relationship between the parties each party will bear their costs.