PETITIONER:
SMT. RAM KALI
Vs.
RESPONDENT:
CHOUDHRI AJIT SHANKAR AND OTHERS
DATE OF JUDGMENT: 28/02/1997
BENCH:
A.S. ANAND, K. VENKATASWAMI
ACT
HEADNOTE
JUDGMENT
JUDGMENT Venkataswami. J.
The question that falls for consideration in this Civil Appeal can be framed as follows:-
"Whether the limited Estate
(including the suit house) given by
the father-in-law under a
registered will dated 5.1.1921 to
his widowed daughter-in-law
enlarges into an absolute estate
under Section 14(1) of the Hindu
Succession Act, 1956 on the facts
of this case."
It is surprising that in spite of a three Judge Bench Judgment of this Court in v lulsamma and others vs. Sesha Reddy (dead) by LRs. (1977) 3 SCC 99) clearly explaining in detail the scope and ambit of sub-sections (1) and (2) of Section 14 of the Hindu Succession Act. 1956, the High Court without referring to that case has reached a palpably erroneous conclusion on the scope of Section 14(1) of the said Act.
This appeal by special leave arises out of a suit filed by one Ch. Rajendra Shankar, the prececessor-in-title of the respondents herein, seeing a declaration that the sale in favour of the appellant herein will not bind him as he was the absolute owner of the suit house. One Kamlawati widowed daughter-in-law of Babu Ram Ratanlal, sold the suit house to the appellant under a registered sale deed dated 18.10.1965 for a valid consideration. That sale was challenged by Rejendra Shankar. grandson of Babu Ram Ratanlal through his daughter, (predecessor in title of the respondents) on the ground that his grandfather by the will dated December 25, 1920 registered on 5.1.1921 had given only a limited interest in the suit house to the said kamlawati and, therefore, the sale will not be binding on him after the death of the said Kamlawati. Ch. Rajendra Shankar died pending suit. His legal representatives continued the suit.
To appreciate the facts. minimal geneology and relevant clauses in the will are necessary which are given below:
Ram Ratan Lal (died in 1921) Sital Prasad Smt. Dulari d/o Ram Ratan (died in 1920) Lal (died in 1918) Smt. Kamlawati (defendant No. 2) Prahalad Singh Ch. Rejendra
(died in 1922) Shankar
(Plaintiff)
Smt. Bittan
w/o Prahalad Singh
(died in 1966)
The relevant clauses (English translation) of the will executed by the said Babu Ram Ratan Lal are extracted below:-
"Whereas I had a son named
Shri Babu Shitla Prasad Singh, He
was studying in B.A. class but due
to my bad luck he died issualess on
29th January, 1920. He was married
in his childhood and his wife Mst.
Kamlawati is alive and my wife is
also alive and my daughter’s sons,
namely, Prahalad Singh and Rajender
Shanker alias Sat Gur Saran, sons
and one daughter’s daughter Savitri
Devi, daughter of late Babu Ambika
Buksh, advocate of Lucknow. Their
parents had put them into my care
for education and they are under my
guardianship. I am exclusive owner
of my property with right of
alienation and it is necessary for
me to make arrangements of the
property for the aforesaid parsons
so that there may not arise any
dispute after my death and I had
executed a will which was certified
and registered on 1/2 March, 1920
and in that I had given
instructions for installation of an
idol of Sri Thakurji. Now by the
grace of God I have installed idols
of Sri Thakur Ram Chanderji and Sri
Janakji in the Drawing room of my
beloved Babu Sheetal Singh
deceased. and I had also directed
my daughter’s sons to pay a sum of
Rs. 35/- per month to my daughter-
in-law for maintenance which amount
is insufficient keeping in view the
high prices and family status.
Instead of me, my daughter’s sons
will have the liability of
maintenance. for this reasons, I
desire to give my entire share in
the Zamidari property valued at is
Annas Mohaal Babu Ram Rattan Lal,
Mauza Rasool Pargana & Tahsil
Purwa, District Unnao, in lieu of
maintenance allowance to my
daughter-in-law. For the reasons
stated above thus present will has
been executed cancelling the
previous one. Therefore, I while in
my all senses, sound health,
intellect, of my own accord and
free will without coercion and
compulsion from any direct that it
be acted upon after my death.
In clause 2 of the said will, the
Testator has stated:-
"My wife of her own is not
desirous to get any share in the
property but it is my duty make
arrangement for her also.
Therefore, my entire moveable
property and household effects
which are owned by me or will be
owned in future, after my death
shall be owned and possessed by my
wife Mst. Prayag Devi and
residential house bearing municipal
No. 69, situated at Mohalla Kharan
Sarai, Town Unnao alongwith the
court-yard and bounded as detailed
hereunder will also be owned and
possessed by my wife. But my
daughter-in-law Mst. Kamlawati
during the life time of my wife,
shall be entitled to reside in the
said house and nobody shall be
entitled to reside in the said
house and nobody shall be entitled
to turn her out. After the death of
my wife, Mst. Kamlawati shall
become the owner of the said house
and remain in possessin thereof.
But both these ladies shall have no
right to alienate the aforesaid
residential houses. the Sale deed
of this residential house, the date
of execution of which is not
remembered by me, is in the name of
my father-in-law Munshi Beni Madhav
Prasad, but in reality I am the
owner of the same and I have
already spent a considerable amount
on the construction of the house
from the day of execution of the
Sale Deed. Therefore, I have a
right to make a will in respect
thereof. (Emphasis supplied).
Clause 3:- My daughter’s sons shall
continue to reside in the
residential house referred to
clause 2 alongwith their maternal
grand-mother and Mami (maternal
uncle’s wife). In case, my wife or
daughter-in-law feel unhappy with
my daughter’s sons or their
dependants or they decline to obey
or serve them (wife and daughter-
in-law) then they (daughter’s sons)
shall have no right to live in my
residential house and they as per
the desire of my wife and daughter-
in-law will have to leave the house
and in other house bearing
Municipal No. 70, but the outer big
room adjacent to Pathak facing
South of the residential house
shall in any case remain under the
use of my daughter’s sons and after
death of my daughter-in-law, my
daughter’s sons shall be the owner
of my residential house referred to
in clause 2 above my daughter’s
sons and their descendants should
continue to reside so that worship
of Sri Thakurji may continue
accordingly and the memories of
mine and of my deceased son may
perpetuate.
Placing reliance on certain clauses in the will and in particular on clause 2 above, the suit was laid as stated earlier.
The suit was resisted by the appellant inter alia contending that his vendor got the property absolutely in view of Section 14(1) of Hindu Succession Act and not merely a life estate as assumed by the plaintiff in the suit.
The Trial Court however dismissed the suit observing as follows:
"I am of the view that defendant
number 21 Kamlawati derived only
life interests in the suit property
under the will in question and that
she had no right to execute sale
deed in favour of defendant number
1 as this right had been
specifically excluded by the terms
of will in question".
"Once it is proved that will in
question was executed by Ram Rattan
Lal then it is abundantly clear by
terms laid down in will in question
that deceased plaintiff Rajendra
Shanker was given interests in his
property in suit which could come
in play only after the death of
Smt. Kamlawati and as such deceased
plaintiff No. 1 had been given a
right and interest over the
property in suit of the terms of
will and that after his death the
same have not devolved to the
present plaintiffs as plaintiff
No.1 Rajendra Shanker has died
before Smt. Kamwati. And as I hold
that the deceased plaintiff No. 1
Rejendra Shanker had rights and
interests to property in suit but
as he has died at the life time of
Kamlawati and as such present
plaintiffs claiming through
deceased plaintiff No. 1 have no
interest and right to the property
in suit as now the absolute rights
have reverted and have vested with
Smt. Kamlawati."
The respondent preferred an appeal to the District Court and the learned First Additional District and Sessions Judge, Unnao held that the vendor of the appellant, namely, Kamlawati was given only a life interest under the will and that the original plaintiff Rajendra Shanker had a vested interest in the suit property in view of Section 19 of the Transfer of property Act read with Section 119 of the Indian Succession Act. The earned Additional District Judge, also held that Section 14(1) of the Hindu Succession Act will not come to the aid of the appellant herein as his vendor got only life interest which will not enlarge into absolute estate in view of the exception provided in Section 14 of the Hindu Succession Act. On that basis, he held that the sale in favour of the appellant will not bind the original plaintiff and his successors in interest. Accordingly, he decreed the suit reversing the judgment of the Trial Court.
On further appeal to the High Court after appreciating clauses 1 and 2 in the will, on the scope of Section 14 of the Hindu Succession Act held as follows:-
"The reading of the will, as
observed above, clearly shows that
Smt. Kamlawati was only given a
right to reside in the house during
her lifetime and she was clearly
debarred from alienating this
property in any way. Smt.
Kamlawati, therefore, had a limited
estate and had no right of
alienation and it was Choudhri
Rajendra Shanker who was vested
with the interest in the estate as
envisaged by Section 19 of the
Transfer of Property Act and
Section 119 of the Indian
Succession Act. It may be mentioned
that under Section 14 of the Hindu
Succession Act the property
possessed by a Hindu Female, no
doubt, has now become her absolute
property. This provision makes an
exception in the case where the
property is being held under a will
or a gift or any other instrument
or under a decree or order of a
Civil Court. The character of such
property was not changed by the
introduction of Section 14 of the
Hindu Succession Act. Therefore, it
cannot be said that the house in
suit in which right of residence
was given to Smt. Kamlawati by
virtue of the will vested in an
absolute proprietary right. Her
rights would remain the same as
were prior to the enforcement of
the Hindu Succession Act."
It is under these circumstances that the appellant moved this court and got leave to file this Appeal. Now, this appeal has come up for final disposal.
Mr. Anil Kumar Gupta, learned counsel for the appellant invited our attention to a number of decisions of this Court and one decision of the privy Council too to support his submission based on Section 14(1) of the Hindu Succession Act, 1956 We do not think it necessary to refer to all the decisions cited in view of the three Judge Bench judgment of this Court in v Tulsamma and Others vs. Sesha Reddy (dead) by L.Rs. [(1977) 3 SCC 99] as the other cases cited by the learned counsel for the appellant are either referred to in this case or apply the ratio laid down in this case.
In Tulsamma’s case, Fazal Ali, J. in this exhaustive judgment on the question of pre-existing right of a Hindu Woman observed as followed:-
"Thus on a careful consideration
and detailed analysis of the
authorities mentioned above and the
Shastric Hindu Law on the subject,
the following propositions emerge
with respect to the incidents and
characteristics of a Hindu women’s
right to maintenance:-
(1) that a Hindu woman’s right to
maintenance is a personal
obligation so far as the husband is
concerned, and it is his duty to
maintain her even if he has no
Property. If the husband has
property then the right of the
widow to maintenance becomes an
equitable charge on his property
and any person who succeeds to the
property carries with it the legal
obligation to maintain the widow.
(2) though the widow’s right to
maintenance is not a right to
property but it is undoubtedly a
pre-existing right in property,
i.e. it is a jus ad rem not jus in
rem and it can be enforced by the
widow who can get a charge created
for her maintenance on the property
either by an agreement or by
obtaining a decree from the civil
court;
(3) that the right of maintenance
is a matter of moment and is of
such importance that even if the
joint property is sold and the
purchaser has notice of the widow’s
right to maintenance, the purchaser
is legally bound to provide for her
maintenance’
(4) that the right of maintenance
is undoubtedly a pre-existing right
which existed in the Hindu Law long
before the passing of the Act of
1937 or the Act of 1946, and is,
therefore, a pre-existing right;
(5) that the right or maintenance
flows from the social and temporal
relationship between the husband
and the wife by virtue of which the
wife becomes a sort of co-owner in
the property of her husband, though
her co-ownership is of a
subordinate nature; and
(6) that where a Hindu widow is in
possession of the property of her
husband, she is entitled to retain
the possession in lieu of her
maintenance unless the person who
succeeds to the property or
purchases the same is in a position
to make due arrangements for her
maintenance."
Thereafter, the learned Judge dealt with the scope of Section 14(1) and laid down the following principles:-
"In the light of the above
decisions of this Court, the
following principles appear to be
clear:-
(1) that the provisions of Section
14 of the 1956 Act must be
liberally construed in order to
advance the object of the Act which
is to enlarge the limited interest
possessed by a Hindu Widow which
was in consonance with the changing
temper of the times;
(2) it is manifestly clear that
the sub-section (2) of Section 14
does not refer to any transfer
which merely recognises a pre-
existing right without creating or
conferring new title on the widow.
This was clearly held by this Court
in Badri pershad’s case (supra)
(3) that the Act of 1956 has made
revolutionary and far-reaching
changes in the Hindu society and
every attempt should be made to
carry out the spirit of the Act
which has undoubtedly supplied a
long felt need and tried to do away
with the invidious distinction
between a Hindu male and female in
matters of intestate succession;
(4) that sub-section (2) of
section 14 is merely a proviso to
sub-section (1) of section 14 and
has to be interpreted as a proviso
and not in a manner so as to
destroy the effect of the main
provision."
Again reiterating the same principles, the learned Judge observed as follows:-
"we would not (now) (sic) like to
summarise the legal conclusions
which we have reached after an
exhaustive considerations of the
authorities mentioned above on the
question of law involved in this
appeal as to the interpretation of
Section 14(1) and (2) of the Act of
1956. These conclusions may be
stated thus:-
(1) That the Hindu female’s right
to maintenance is not an empty
formality or an illusory claim
being conceded as a matter of grace
and generosity, but is a tangible
right against property which
flows from the spiritual
relationship between the husband
and the wife and is recognised and
enjoined by pure Shastric Hindu Law
and has been strongly stressed even
by the earlier Hindu jurists
starting from Yajnavalkya to Manu.
Such a right maynot be a right to
property but it is a right against
property and the husband has a
personal obligation to maintain his
wife and if he or the family has
property, the female has the legal
right to be maintained therefrom.
If a charge is created for the
maintenance of a female, the said
right becomes a legally enforceable
one. At any rate, even without a
charge the claim for maintenance is
doubtless a pre-existing right so
that any transfer declaring or
recognising such a right does not
confer any new title but merely
endorses or confirms the pre-
existing rights.
(2) Section 14(1) and the
Explanation thereto have been
couched in the widest possible
terms and must be liberally
construed in favour of the 1956 Act
and promote the socio-economic ends
sought to be achieved by this long
needed legislation.
(3) Sub-section (2) of Section 14
is in the nature of a proviso and
has a field of its own without
interferring with the operation of
Section 14(1) materially. The
proviso should not be construed in
a manner so as to destroy the
effect of the main provision or the
protection granted by Section 14(1)
or in a way so as to become totally
inconsistent with the main
provision.
(4) Sob-section (2) of Section 14
applies to instruments, decrees,
awards, gifts, etc. which create
independent and new titles in
favour of the females for the first
time and has no application where
the instrument concerned merely
seeks to confirm, endorse, declare
or recognise pre-existing rights.
In such cases a restricted estate
in favour of a female is legally
permissible and Section 14(1) will
not operate in the sphere. where,
however, an instrument merely
declares or recognises a pre-
existing right, such as a claim to
maintenance or partition or share
to which the female is entitled,
the sub-section has absolutely no
application and the female’s
limited interest would
automatically be enlarged into an
absolute one by force of Section
14(1) and the restrictions placed,
if any, under the document would
have to be ignore. thus where a
property is allotted or transferred
to a female in lieu of maintenance
or a share at partition, the
instrument is taken out of the
ambit of sub-section 14(2) and
would be govered by Section 14(1)
despite any restrictions placed on
the powers of the transferee.
(5) the use of express terms like
"property acquired by a female
Hindu at a partition", "or in lieu
of maintenance", "or arrears of
maintenance", etc. in the
Explanation to section 14(1)
clearly makes sub-section (2)
inapplicable to these categories
which have been expressly excepted
from the operation of sub-section
(2).
(6) The words "possessed by " used
by the Legislature in Section 14(1)
are of the widest possible
amplitude and include the state of
owning a property even though the
owner is not in actual or physical
possession of the same. Thus, where
a widow gets a share in the
property under a preliminary decree
before or at the time when the 1956
Act had been passed but had not
been given actual possession under
a final decree, the property would
be deemed to be possessed by her
and by force of Section 14(1) she
would get absolute interest in the
property. It is equally well-
settled that the possession of the
widow, however, must be under some
vestige of a claim, right or title,
because the section does not
contemplate the possession of any
rank trespasser without any right
or title.
(7) Tha the words "restricted
estate" used in Section 14(2) are
wider than limited interest as
indicated in Section 14(1) and they
include not only limited interest,
but also any other Kind of
limitation that may be placed on
transferee."
Bhagwati and Das Gupta, JJ. while concurring with Fazal Ali, J. held as follows:-
"It is settled law that a widow is
entitled to maintenance out of her
deceased husband’s estate,
irrespective whether that estate
may be in the hands of his male
issue or it may be in the hands of
his coparceners. The joint family
estate in which her deceased
husband had a share is liable for
her maintenance and she has a right
to be maintained out of the joint
family properties and though, as
pointed out by this Court in Rani
Bai vs. Shri Yadunandan Ram, her
claim for maintenance is not a
charge upon any joint family
property until she has got her
maintenance determined and made a
specific charge either by agreement
or a decree or order of a court,
her right is "not liable to be
defeated except by transfer to a
bona fide purchaser for value
without notice of her claim or even
with notice of the claim unless the
transfer was made with the
intention of defeating her right".
the widow can for the purpose of
her maintenance follow the joint
family property "into the hands of
anyone who takes it as a volunteer
or with notice of her having set up
a claim for maintenance." The
courts have even gone to the length
of taking the view that where a
widow is in possession of any
specific property for the purpose
of her claim is not entitled to
possession of that property without
first securing proper maintenance
for her. Vide Rachawa vs.
Shivayagoppa cited with approval in
Rani Bai’s case (supra). It is,
therefore, clear that under the
Shastric Hindu Law a widow has a
right to be maintained out of joint
family property and this right
would ripen into a charge if the
widow takes the necessary steps for
having her maintenance ascertained
and specifically charged on the
joint family property and even if
no specific charge is created this
right would be enforceable against
joint family property in the hands
of a volunteer or purchaser taking
it with notice of her claim. 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. Therefore, 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.
If would not be a grant for the
first time without any pre-existing
right in the widow. The widow would
be getting the property in virtue
of her pre-existing right, the
instrument giving the property
being merely a document
effactuating such pre-existing
right and not making a grant of
property to her for the first time
without any antecedent right or
title. There is also another
consideration which is very
relevant to this issue and it is
that. even if the instrument were
silent as to the nature of the
interest given to the widow in the
property and did not, in so many
terms, prescribe that she would
have a limited interest, she would
have no more than a limited
interest in the property under the
Hindu law as it stood prior to the
enactment of the Act and hence a
provision in the instrument
prescribing that she would have
only a limited interest in the
property would be, to quote the
words of this court in Nirmal
Chand’s case (supra), "merely
recording the true legal position"
and that would not attract the
applicability of sub-section (2)
but would be governed by sub-
section (1) of Section 14. The
conclusion is, therefore,
inescapable that where property is
allotted to a widow under an
instrument, decree, order or award
prescribes a restricted estate for
her in the property and sub-
section (2) of Section 14 would
have no application in such as
case."
In the light of the above settled position which has been consistently followed and applied by this Court as late as in Nazar Singh and others vs Jagjit Kaur and Others (1996) 1 SCC 35), if we look into the relevant clauses extracted above from the will in question, there can be no doubt that in view of Section 14(1) of the Hindu Succession Act, the property given to Kamlawati was in recognition of her pre-existing right to maintenance and that property she was to hold absolutely notwithstanding the restrictions placed in the will on her right to alienation.
The only argument raised before us by the learned counsel for the respondents was that on the facts of this case Section 14(2) of the Hindu Succession Act applies and not Section 14(1). According to the learned counsel for the respondents the Hindu women have no pre-existing right for maintenance and assuming she had so, that must be pursuant to Hindu Women’s Right to Property Act, 1937 and not earlier. This argument is not available in view of the clear pronouncement to the contrary in Tulsamma’s case (supra).
After carefully going through the judgment of the High Court and relevant clauses in the Will, we find that the following facts were either admitted or were not disputed. The testator bequeathed on the said Kamlawati apart from the suit house other properties recoginising/conscious of her pre-existing right for maintenance. The clause in the will restraining Kamlawati from alienating the bequeathed properties was in consonance with the law/custom then existing. Regarding bar on alienation for ever not only by Kamlawati but also by the heirs of testators’s daughter relating to suit house, the High Court observed as follows:-
"It is no doubt true that the
condition restraining alienation is
clearly void in view of the
provisions of the Transfer of
Property Act. It may be mentioned
that Section 138 of the Succession
Act, 1928 is also on the same
lines. There cannot be two opinions
about it.
Having held as above, the High Court on a wrong understanding of Section 14 of the Hindu Succession Act held further that Kamlawati got under the will only a limited interest in the suit house namely, a right of residence till her death. In the light of the ruling of this Court in Tulsamma’s case (supra). We have no doubt that the High Court went wrong in taking the view that Kamlawati, appellant’s vendor, got only a limited estate in the suit house because of the terms of the will. As pointed out earlier, Kamlawati had a pre-existing right and that she was in possession of the suit house when the Hindu Succession Act came into force and in view of Section 14(4) of the said Act, her limited estate enlarges into an absolute one. The reversioners have no right in the property till it comes to them by reversion because the widow is not a ‘trustee’ of the interests of the revesioners after the coming into force of the 1956 Act. In that view, the appellant succeeds in this Appeal.
In the result, we hold that the High Court went wrong in holding that the vendor of the appellant namely, Kamlawati had only a limited interest and she had no right to alienate the suit house under the will. we hold that Kamlawati got absolute title to the suit house under the will which is a document effectuating a pre-existing right and not by itself making a grant.
Accordingly, the appeal is allowed and the Judgment and order of the District Court as will as the High Court are set aside. The suit is dismissed. No costs.