PETITIONER:
V. TULASAMMA & ORS.
Vs.
RESPONDENT:
V. SESHA REDDI (DEAD) BY L. Rs.
DATE OF JUDGMENT17/03/1977
BENCH:
BHAGWATI, P.N.
GUPTA, A.C.
FAZALALI, SYED MURTAZA
CITATION:
1977 AIR 1944 1977 SCR (3) 261
1977 SCC (3) 99
ACT
Hindu Succession Act, 1956--S. 14(1) and (2)--Scope of.
HEADNOTE
Section 14(1 ) of the Hindu Succession Act, 1956 pro-
vides that "any property possessed by a female Hindu, wheth-
er acquired before or after the commencement of the Act,
shall be held by her as full owner thereof and not as a
limited owner." According to the explanation to this
sub-section the term "property" includes both movable and
immovable property acquired by a female Hindu in lieu of
maintenance or arrears of maintenance or in any other manner
whatsoever. Sub-section (2) provides that nothing in sub-s.
(1) shall apply to any property acquired by way of gift or
under a will or any other instrument which prescribes a
restricted estate in such property.
At the time of his death, the appellant’s husband, who
was the brother of the respondent, lived in a state. of
jointness with the respondent. On her husband’s death
the appellant filed a petition for maintenance. The re-
spondent entered into a compromise with her, one of the
terms of which was that the appellant should enjoy during
her life time certain properties given to her and on her
death those properties should revert to the respondent. ’The
appellant .sold some of the properties. The respondent
sought a declaration that under 1he terms of the compromise
the appellant’s interest, which was a limited one, could not
be enlarged into an absolute interest enabling her to sell
the. properties.
The District Munsiff decreed the suit. On appeal, the
District Judge held that by virtue of the provisions of the
1956-Act, the appellant had acquired an absolute interest in
the properties and that s. 14(2) had no application to the
case because the compromise was an instrument in recognition
of a pre-existing right. The High Court, on the other hand,
held that the compromise was an instrument contemplated by
s.14(2) and the appellant could not get an absolute inter-
est, under s.14(1); and that since her husband died even
before the Hindu Women’s Right to Property Act, 1937 came
into force, she could not be said to have any pre-existing
right because she had got the right for the first time under
the compromise.
Allowing the appeal,
(Per Bhagwati and Gupta, JJ)
HELD: Since the properties were acquired by the appel-
lant under the compromise in lieu or satisfaction of her
right to maintainance it is s. 14(1) and not s.14(2) which
would be applicable. The appellant must be deemed to have
become full owner of the properties notwithstanding that the
compromise prescribed a limited interest in the properties.
[274 C-D]
1. Under the Sastric 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 took the necessary steps
for having her maintenance ascertained and specifically
charged on the joint family property and even if no specific
charge were created, this right would be. enforceable
against joint family property in the hands of a volunteer
or a purchaser taking it with notice of her claim. The
right of the widow to be maintained is not a ]us in rem,
since it does not give any interest in the joint family
property but it is ]us ad rem. 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. It would not be a grant for the.
262
first time without any pro-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 effectuating such pre-existing right. [273
A-C]
2(a) Section 14(1) is large in its amplitude and covers
every kind of acquisition of property by:, a female Hindu
including acquisition in lieu of maintenance. Where such
property was possessed by her at the date of commencement
of the Act or was subsequently acquired and possessed, she
would become the full owner of the property. [268 G]
(b) The words "any property" are large enough to cover
any and every kind of property but in order to expand the
reach and ambit of the, section and make it all-comprehen-
sive, the Legislature has enacted the explanation. [268 B]
(c) Whatever be the kind of property movable or immova-
ble and whichever be. the mode of acquisition, it would be
covered by sub-s. (1 ), the object of the Legislature being
to wipe out the disabilities from which a Hindu female
suffered in regard to ownership of property under the old
Sastric Law, to abridge the stringent provisions against
proprietary rights and to recognise her status as an inde-
pendent and absolute owner of property. [268 D]
(d) In Gummalapura Taggina Matada Kotturuswami v.
Setra Veeravva [1959] Supp. 1 SCR 968, this Court construed
the words "possessed of" in a broad sense and in their
widest connotation to mean as "the state of owning or having
in one’s hand or power" which need not be actual or physical
possession or personal occupation of the property by the
Hindu female, but may be possession in law. It may be
actual or constructive or in any other form recognised by
law. [268 E-F] .
(e) Sub-section (2), which is in the nature of a proviso
to sub-s.(1), excepts certain kinds of acquisition of
property by a Hindu female from the operation of sub-s. (1).
[269 B]
(f) Sub-section (2), must be read in the context of
sub-s.(1) to. leave as large a scope for operation as
possible to sub-s.(1). So read, it must be confined to
cases where property is acquired by a female Hindu for the
first time. as a grant without any pre-existing right under
a gift, will, instrument, decree, order or award, the terms
of which prescribe a restricted estate in the property. [269
H]
(g) The legislative intendment in enacting sub-s.(2)
was that this subsection should be applicable only to
cases where the acquisition of property is made by a Hindu
female for the first time without any pre-existing right.
Where. however, property is acquired by a Hindu female at a
partition or in lieu of her right to4 maintenance iris in
virtue of a pre-existing right and such acquisition would
not be within the! scope and ambit of sub-s.(2) even if the
instrument allotting the property prescribes a restricted
estate in the property. Where property is acquired by a
Hindu re,male under art instrument in virtue of a preex-
isting right such as a right to obtain property on partition
or a right to maintenance. and under the law as it stood
prior to the enactment of the Act, she should have no more
than limited interest in the property a provision in the
instrument giving her limited interest in the property would
be merely by way of record or recognition of the true legal
position and the restriction on her interest being a disa-
bility imposed by law would be wiped out and her limited
interest would be enlarged under sub-s. (1). [270 D; 272 A-
B]
In the instant case the appellant claimed maintenance
out of the joint family properties in the hands of her
deceased husband’s brother, and the claim was decreed and in
execution of the decree the respondent entered into a com-
promise and allotted properties to her in lieu of her claim
for maintenance. The appellant must in the circumstances be
deemed to have become full owner of the properties notwith-
standing that the compromise prescribed a limited interest
for her in the properties. It is sub-s.(1) and not sub-
s.(2) of s. 14 which must be held to be applicable on these
facts.
S.S. Munna Lal v.S.S. Raikumar, [1962] Supp. 3 SCR 418
Gummalapura Teggina Matada Kotturaswami v. Setra Verrayva
[1959] Supp. I SCR 968 Mangal Singh v. Ratno, AIR 1967 SC
1786 Badri Pershad v. Smt. Kanso Devi
263
[1970] 2 SCR 95 Nirmal Chand v. Vidya Wanti (dead) by her
Legal representatives. C.A. No. 609 of 1965, decided on
January 21, 1969, Rani Bai v.Shri Yadunandan Ram, [1969]
3 SCR 789. referred to.
B.B. Patil, v. Gangabai, AIR. 1972 Bom. 16, Sumeshwar Misra
v. Swami Nath Tiwari AIR 1970 Pat. 348, Reddayya v. Varapula
Venkataraju AIR 1965 A.P. 66, Lakshmi Devi v. Shankar Jha,
AIR. 1967 Mad. 429, N. Venkanagouda v. Hanamangouda, AIR
1972 Mys. 286, Smt. Sharbati Devi v. Pt. Hiralal AIR 1964
Pb. 114, Sesadhar Chandra Dev. v. Smt. Tara Sundari Dasi,
AIR 1962 Cal. 438, Saraswathi Ammal v.Anantha Shenoi, AIR
1966 Ker. 66 and Kunji Thomman v. Meenakshi, ILR [1970] 2
Ker. 45 approved.
Gurunadham v. Sundarajulu, ILR [1968] 1 Mad. 467 Sentha-
nam v. Subramania, ILR [1967] 1 Mad. 68, S. Kachapalaya
Gurukkal v. V.Subramani Gurukkal, AIR 1972 Mad. 279 Shiva
Pujan Rai v. Jamune Missir, ILR [1947] Pat. 1118 Gopisetti
Kondaiah v. Gunda Subbrayudu, ILR [1968] A.P. 621, Ram Jag
Missir v. The Director of Consolidation, U.P. AIR 1975 All.
151 and ,4lab Singh v. Ram Singh AIR 1959 J&K 92 not ap-
proved.
(per Fazal Ali, J concurring)
The High Court was in error in holding that the appel-
lant would have only a limited interest and in setting aside
the alienations made by her. The compromise by which the
properties were allotted to her in lieu of her maintenance
were merely in recognition of her pre-existing right ,of
maintenance and, therefore, her case would be taken out of
the ambit of s. 14(2) and would fall within s. 14(1) read
with the Explanation thereto. [311 G]
The incidents and characteristics of a Hindu woman’s
right to maintenance are:
(i) 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. [286 D]
(ii) though the widow’s right to maintenance is not a
right to property but it is a pre-existing right in proper-
ty, that is, it is a ]us ad rein and not ]us in rem and it
cannot be enforced by the widow who can get a charge created
for the maintenance on the property either by an agreement
or by obtaining a decree from the civil court. [286 E]
(iii) 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. [286 F]
(iv) that the right to maintenance is 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. [286 G]
(v) that the right to 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. [286 H]
(vi) 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 [287
A]
Digest of Hindu Law, Vol. II, pp. 121, 123 and 243
by Colebrooke. Hindu Law by Golyal Chandra Sarkar Sastri,
p. 533. Treatise on Hindu Law & Usage by Mayne, 11th edn.
pp. 684, 813, 816, 822, Hindu Law by Mulla, p. 597.
264
Narayan Rao Ramchandra Pant v. Ramabai, L.R. 6 I.A.,
114, Lakshman Ramchandra Joshi & anr. v. Satyabhamabai,
I.L.R. 2 Bom. 494, Narbadabai v. Mahadeo Narayan, Kashinath
Narayan and Shamabai, I.L.R. 5 Bom. 99, Mst. Dan Kaur v.
Mst. Sarla Devi, L.R. 73 LA. 208, Prataprnull Agarwalla v.
Dhanabati Bibi, L.R. 63 I.A. 33, Rani Bai v. Shri Yadunandan
Ram & anr. [1969] 3 S.C.R. 789, Sheo Dayal Tewaree v. Judoo-
nath Tewaree [1898] 9 W.R. 61, Srinath Das v. Prabodh Chun-
der Das, 11 C.L.I. 580, Hernangini Dasi v. Kedarnath Kundu
Chowdhry I.L.R. 16 Cal. 758. K.V. Thangavelu v. The Court
of Words, Madras [1946] 2 M.LJ. 143, Sarojinidevi v. Sub-
rahrnanyam I.L.R. 1945 Mad. 61, .Jayanti Subbiah v. Alamelu
Mangamma I.L.R. 27 Mad. 45 and Yellawa v. Bhirnangavda
I.L.R. 18 Bom. 452 referred to.
An examination of the decisions of this Court estab-
lishes the following principles of law:
(i) that the provisions of s. 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; [295A]
(ii) it is manifestly clear that sub-s. (2) of s. 14
does not refer to any transfer which merely recognises a
pre-existing right without creating or conferring a new
title on the widow. This was clearly held by this Court in
Badri Pershad’s case. [295B]
(iii) 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. [295C]
(iv) that sub-s. (2) of s. 14 is merely a proviso to
sub-s. (1) of s. 14 and has to be interpreted as a proviso
and not in a manner so as to destroy the effect of the main
provision. [295D]
Thus on a conspectus of the Shastric Hindu Law, the
provisions of the 1956-’ Act and the decisions of this Court
the following conclusions emerge:
1. A Hindu female’s right to maintenance is not an empty
formality or an illusory claim but is a tangible right
against property which flows from 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 may not be a right to
property but 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 fight to be
maintained therefrom. If a charge is created for the main-
tenance of a female, the said right becomes a legally en-
forceable one. At any rate, even without a charge the claim
for maintenance is 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. [310 BC]
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 females so as to advance the
object of the 1956-Act and promote the socio-economic ends
sought to be achieved by this long needed legislation.
[310D]
3. Section 14(2) is in the nature of a proviso and has a
field of its own without interfering with the operation of
s. 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 s. 14(1) or in a way so as to
become totally inconsistent with the main provision. [310 E]
4. Section 14(2) 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 s. 14(1) will not operate
265
in this sphere. Where, however, an instrument merely de-
clares or recognises a pre-existing right, such as to a
claim to maintenance .or partition or share to which the
female is entitled, the sub-section has absolutely no appli-
cation and the female’s limited interest would automatically
be enlarged into an absolute one by force of s. 14(1) and
the restrictions placed, if any, under the document would
have to be ignored. 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-
s. (2) and would be governed by s. 14(1) despite any re-
strictions placed on the powers of the transferee. [310F-G]
5. The use of express terms like "property acquired by a
female Hindu at a partition", "or in lien of maintenance",
"or arrears of maintenance" etc., in the Explanation to s.
14(1) clearly makes sub-s. (2) inapplicable to these catego-
ries which have been expressly excepted from the operation
of sub-s. (2). [310H]
6. The words "possessed by’, in s. 14(1)- are of the
widest amplitude and . include the state of owning a proper-
ty even though the owner is not in actual or physical pos-
session 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 s.
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 posses-
sion of any rank trespasser without any right or title.
[311 A-B]
7. That the words "restricted estate" used in s. 14(2)
are wider than limited interest as indicated in s. 14(1) and
they include not only limited interest but also any other
kind of limitation that may be placed on the transferee.
[311 C]
In the instant case, the properties in dispute were
allotted to the appellant under a compromise certified by
the Court. Secondly, the appellant had taken only a life
interest in the properties and there was a clear restriction
prohibiting her from alienating the properties. Thirdly,
despite these restrictions, she continued t0 be in posses-
sion of the properties till the alienations which she had
made in 1960 and 1961 were after she had acquired an abso-
lute interest in the properties.
Smt. Naraini Devi v. Smt. Ramo Devi & ors [1976] 1
S.C.C.574 over-ruled.
S.S. Munnalal v.S.S. Rajkumar [1962] Supp. 3 S.C.R. 418;
Eramina v. Verrupanna [1966] 2 S.C.R. 626; Mangal Singh v.
Smt. Rattno [1967] 3 S.C.R. 454; Sukhram & anr. v. Gauri
Shankar & anr. [1968] 1’ S.C.R. 476; Badri Parshad v. Smt.
Kanso Devi [1970] 2 S.C.R. 95 and Nirmal Chand v. Vidya
Wanti (dead) by her Legal Representative C.A. 609 of 1966
decided on January 21, 1969 referred to.
B.B. Patil v. Gangabai A.1.R. 1972 Bom. 16; Gaddam
Reddayya v. Varapula Venkataraju & Anr. A.I.R. 1965 A.P. 66;
Sumeshwar Mishra v. Swami Nath Tiwari A.I.R. 1970 pat. 348;
H. Venkanagouda v. Hansumangouda A.I.R. 1972 Mys. 286; Smt.
Sharbati Devi v. Pt. Hiralal & Anr. A.I.R. 1964 Punjab 114;
Sasadhar Chandra Der v. Smt. Tara Sundart Desi A.I.R. 1962
Cal. 438, approved.
Narayan Patra v. Tara Patrant [1970] 36 Cuttack Law
Times--A.I.R. 1970 Orissa 131; Shiva Pulan Rai & Ors. v.
Jamuna Missir & Ors. I.L.R. 47 Pat. 1118; Gopisetti Kondaiah
v. Gunda Subbarayudu I.L.R. [1968] A.P. 621; Ram Jag Misir
v. The Director of Consolidation, U.P. AIR 1975 All. 151;
Ajab Singh & Ors. v. Ram Singh & Ors. A.I.R. 1959 L & K. 92;
Surnadham v. Sundararajulu I.L.R. [1968] 1 Mad. 567; Kacha-
palaya Gurukkal v.V. Subramania Gurukkal A.I.R. 1972, Mad.
279 not approved.
266
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1360 of 1968.
(Appeal by Special Leave from the Judgment and Order
dated 22-11-1967 of the Andhra Pradesh High Court in Second
Appeal No. 804/64).
T.S. Krishnamurthi lyer, R.K. Pillai and R. Vasudev
Pillai, for the appellants.
T. V. S. Narasimhachari, for the respondents.
The Judgment of P.N. Bhagwati and A.C. Gupta, JJ. was
delivered by Bhagwati, J.S. Murtaza Fazal Ali, J. gave a
separate opinion.
BHAGWATI, J.--We have had the advantage of reading the
judgment prepared by our learned brother S. Murtaza Fazal
Ali and we agree with the conclusion reached by him in that
judgment but we would prefer to give our own reasons. The
facts giving rise to the appeal are set out clearly and
succinctly in the judgment of our learned brother and we do
not think it necessary to reiterate them.
The short question that arises for determination in this
appeal is as to whether it is sub-section (1) or sub-section
(2) of section 14 of the Hindu Succession Act, 1956 that
applies where property is given to a Hindu female in lieu of
maintenance under an instrument which in so many terms
restricts the nature of the interest given to her in the
property. If sub-section (1) applies, then the limitations
on the nature of her interest are wiped out and she becomes
the full owner of the property, while on the other hand, if
sub-section (2) governs such a case, her limited interest in
the property is not enlarged and she continues to have the
restricted estate prescribed by the instrument. The question
is of some complexity and it has evoked wide diversity of
judicial opinion not only amongst the different High Courts
but also within some of the High Courts themselves. It is
indeed unfortunate that though it became evident as far back
as 1967 that subsections (1) and (2) of section 14 were
presenting serious difficulties of construction in cases
where property was received by a Hindu female in lieu of
maintenance and the instrument granting such property pre-
scribed a restricted estate for her in the property and
divergence of judicial opinion was creating a situation
which might well be described as chaotic, robbing the law of
that modicum of certainty which it must always possess in
order to guide the affairs of men, the legislature, for
all these years, did not care to step in to remove the
constructional dilemma facing the courts and adopted an
attitude of indifference and inaction, untroubled and un-
moved by the large number of cases on this point encumbering
the files of different courts in the country, when by the
simple expedient of an amendment, it could have
silenced .judicial conflict and put an end to needless
litigation. This is a classic instance of a statutory
provision which, by reason of its inapt draftsmanship, has
created endless confusion for litigants and proved a para-
dise for lawyers. It illustrates forcibly the need of an
authority or body to be set up by the Government or the
Legislature which would constantly keep in touch with the
adjudicatory
267
authorities in the country as also with the legal profession
and immediately respond by making recommendations for suit-
able amendments whenever it iS found that a particular
statutory provision is, by reason of inapt language or
unhappy draftsmanship, creating difficulty of construction
or is otherwise inadequate or defective or is not well
conceived and is consequently counter-productive of the
result. it was intended to achieve. If there is a close
inter-action between the adjudicatory wing of the State and
a dynamic and ever alert authority or body which responds
swiftly to the draw-backs and deficiencies in the law in
action, much of the time and money, which is at present
expended in fruitless litigation, would be saved and law
would achieve a certain amount of clarity, certainty and
simplicity which alone can make it easily intelligible to
the people.
Since the determination of the question in the appeal
turns on the true interpretation to be placed on sub-section
(2) read in the context of sub-section (1) of section 14 of
the Hindu Succession Act, 1956, it would be convenient at
this stage to set out both the sub-sections of that section
which read as follows:
"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 inheri-
tance or device, 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 what-
ever, and also any such property held by her
as stridharas immediately before the commence-
ment of this Act.
(2) Nothing contained in sub-section (1)
shah 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."
Prior to the enactment of section 14, the Hindu law, as it
was then in operation, restricted the nature of the interest
of a Hindu female in property acquired by her and even as
regards the nature of this restricted interest, there was
great diversity of doctrine on the subject. The Legisla-
ture, by enacting sub-section (1) of section 14, intended,
as pointed by this Court in S.S. Munna Lal v.S.S.
Raikumar(1) "to convert the interest which a Hindu female
has in property, however, restricted the nature of that
interest under the Sastric Hindu law may be, into absolute
estate". This Court pointed out that the Hindu Succession
Act, 1956 is a codifying enactment and has made far-reaching
changes in the structure of the Hindu law of inheritance,
and succession. The Act confers upon Hindu females full
rights of inheritance
(1) [1962] Supp. 3 S.C.R. 418.
268
and sweeps away the traditional limitations on her powers of
disposition which were regarded under the Hindu law as
inherent in her estate". Sub-section (1) of section 14, is
wide in its scope and ambit and uses language of great
amplitude. It says that any property possessed by a female
Hindu,. whether acquired before or after the commencement of
the Act, shall be held by her as full owner thereof and not
as a limited owner. The words "any property" are, even
without any amplification, large enough to cover any and
every kind of property, but in order to expand the reach and
ambit of the section and make it all-comprehensive, the
Legislature has enacted an explanation which says that
property would include "both movable and immovable property
acquired by a female Hindu by inheritance or device, or at a
partition, or in lieu of maintenance or arrears of mainte-
nance, 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 whatever, and also any such property held by
her as stridhana immediately before the commencement" of the
Act. Whatever be the kind of property, movable or immovable,
and whichever be the mode of acquisition, it would be cov-
ered by subsection (1) of section 14, the object of the
Legislature being to wipe out the disabilities from which a
Hindu female suffered in regard to ownership of property
under the old Sastric law, to abridge the stringent provi-
sions against proprietary rights which were often regarded
as evidence of her perpetual tutelege and to recongnize her
status as an independent and absolute owner of property.
This Court has also in a series of decisions given a most
expansive interpretation to the language of sub-section (1)
of section 14 with a view to advancing the social purpose of
the legislation and as part of that process, construed the
words ’possessed of’ also in a broad sense and in their
widest connotation. It was pointed out by this Court in
Gummalepura Taggina Matada Kotturuswami v. Setra Veeravva(1)
that the words ’possessed of mean "the state of owning or
having in one’s hand or power". It need not be actual or
physical possession or personal occupation
of the property by the Hindu female, but may be possession
in law. It may be actual or constructive or in any form
recognized by law. Elaborating the concept, this Court
pointed out in Mangal Singh v. Rattno(2) that the section
covers all cases of property owned by a female Hindu al-
though she may not be in actual, physical or constructive
possession of the property, provided of course, that she has
not parted with her rights and is capable of obtaining
possession of the property. It will, therefore, be seen
that sub-section (1) of section 14 is large in its amplitude
and covers every kind of acquisition of property by a female
Hindu including acquisition in lieu of maintenance and where
such property was possessed by her at the date of commence-
ment of the Act or was ’subsequently acquired and possessed,
she would become the full owner of the property.
Now, sub-section (2) of section 14 provides that nothing
contained in sub-section (1 ) shall apply to any property
acquired by way of gift or under a will or any other instru-
ment or under a decree or order
(1) [1959] supp. 1 S.C.R. 968. (2) A.I.R. 1967 S.C. 1786.
269
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. This provi-
sion iS more in the nature of a proviso or exception to
sub-section (1) and it was regarded as such by this Court in
Badri Pershad v. Smt. Kanso Devi(1). It excepts certain
kinds of acquisition of property by a Hindu female from the
operation of sub-section (1) and being in the nature of an
exception to a provision which is calculated to achieve a
social purpose by bringing about change in the social and
economic position of women in Hindu society, it must be
construed strictly so as to impinge as little as possible on
the broad sweep of the ameliorative provision contained in
sub-section (1 ). It cannot be interpreted in a manner
which would rob sub-section (1 ) of its efficacy and deprive
a Hindu female of the protection sought to be given to her
by sub-section (1 ). The language of sub-section (2) is
apparently wide to include acquisition of property by a
Hindu female under an instrument or a decree or order or
award where the instrument, decree, order or award pre-
scribes a restricted estate for her in the property and
this would apparently cover a case where property is given
to a Hindu female at a partition or m lieu of maintenance
and the instrument, decree, order or award giving such
property prescribes limited interest for her in the proper-
ty. But that would virtually emasculate sub-section (1),
for in that event, a large number of cases where property is
given to a Hindu female at a partition or in lieu of mainte-
nance under an instrument, order or award would be excluded
from the operation of the beneficent provision enacted in
sub-section (1 ), since in ,most of such cases, where
property is allotted to the Hindu female prior to the enact-
ment of the Act, there would be a provision, in consonance
with the old Sastric law then prevailing, prescribing limit-
ed interest in the property and where property is given to
the Hindu female subsequent to the enactment of the Act, it
would be the easiest thing for the dominant male to provide
that the Hindu female shall have only a restricted interest
in the property and thus make a mockery of sub-section (1).
The Explanation to sub-section (1) which includes within the
scope of that sub-section property acquired by a female
Hindu at a partition or in lieu of maintenance would also be
rendered meaningless, because there would hardly be a few
cases where the instrument, decree, order or award giving
property to a Hindu female at a partition or in lieu of
maintenance would not contain a provision prescribing re-
stricted estate in the property. The social purpose of the
law would be frustrated and the reformist zeal underlying
the statutory provision would be chilled. That surely could
never have been the intention of the Legislature in enacting
sub-section (2). It is an elementary rule of construction
that no provision of a statute should be construed in isola-
tion but it should be construed with reference to the con-
text and in the light of other provisions of the statute so
as, as far as possible, to make a consistent enactment of
the whole statute. Sub-section (2) must, therefore, be read
in the context of sub-section (1) so as to leave as large a
scope for operation as possible to sub-section (1) and so
read, it must be confined to cases where property is ac-
quired by a female Hindu for the first time as a grant
without any pre-existing
(1) [1970] 2 S.C.R. 95.
270
right, under a gift, will, instrument, decree, order or
award, the terms of which prescribe a restricted estate in
the property. This constructional approach finds support in
the decision in Badri Prasad’s case (supra) where this Court
observed that sub-section (2) "can come into operation only
if acquisition in any of the methods enacted 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". It’ may also be noted that when the Hindu Suc-
cession Bill 1954, which ultimately culminated into the Act,
was referred to a Joint Committee of the Rajya Sabha, clause
15(2) of the Draft Bill, corresponding to the present sub-
section (2) of section 14, referred only to acquisition of
property by a Hindu female under gift or will and it was
subsequently that the other modes of acquisition were added
so as to include acquisition of property under an instru-
ment, decree, order or award. This circumstance would also
seem to indicate that the legislative intendment was that
sub-section (2) should be applicable only to cases where
acquisition of property is made by a Hindu female for the
first time without any pre-existing right-a kind of acquisi-
tion akin to one under gift or will. Where, however, proper-
ty is acquired by a Hindu female at a partition or in lieu
of right of maintenance, it is in virtue of a pre-existing
right and such an acquisition would not be within the scope
and ambit of sub-section (2), even if the instrument, de-
cree, order or award allotting the property prescribes a
restricted estate in the property.
This line of approach in the construction of sub-section
(2) of section 14 is amply borne out by the trend of judi-
cial decisions in this Court. We may in this connection
refer to the decision in Badri Parasad’s case (supra). The
facts in that case were that one Gajju Mal owning self-
acquired properties died in 1947 leaving five sons and a
widow. On August 5, 1950, one Tulsi Ram Seth was appointed
by the parties as an arbitrator for resolving certain dif-
ferences which had arisen relating to partition of the
properties left by Gujju Mal. The arbitrator made his award
on December 31, 1950 and under clause 6 of the award, the
’widow was awarded certain properties and it was expressly
stated in the award that she would have a widow’s estate in
the properties awarded to her. While the widow was in
possession of the properties, the Act came into force and
the question arose whether on the coming into force of the
Act, she became full owner of the properties under sub-
section (1) or her estate in the properties remained a
restricted one under sub-section (2) of section 14. This
Court held that although the award gave a restricted estate
to the widow in the properties allotted to her, it was sub-
section (1) which applied and not sub-section (2), because
inter alia the properties given to her under the award were
on the basis of a pre-existing right which she had as an
heir off .her husband under the Hindu Women’s Right to
Property Act, 1937 and not as a new grant made for the first
time. So also in Nirmal Chand v. Vidya Wanti (dead) by her
legal representatives(1), there was a regular partition deed
made on December 3, 1945 between Amin chand, a coparcener
and
(1) C.A. No. 609 of 1965, decided on January 21, 1969.
271
Subhrai Bai, the widow of a deceased coparcener, under which
a certain property was allotted to Subhrai Bai and it was
specifically provided in the partition deed that Subhrai Bai
would be entitled only to the user of the property and she
would have no right to alienate it in any manner but would
only have a life interest. Subhrai Bai died in 1957 subse-
quent to the coming into force of the Act after making a
will bequeathing the property in favour of her daughter
Vidyawati. The right of Subhrai Bai to bequeath the property
by will was challenged on the ground that she had only a
limited interest in the property and her case was covered by
sub-section (2) and not sub-section (1). This contention was
negatived and it was held by this Court that though it was
true that the instrument of partition prescribed only a
limited interest for Subhrai Bai in the property, that was
in recognition of the legal position which then prevailed
and hence it did not bring her case within the exception
contained in sub-section (2) of section 14. This Court
observed:
"If Subhrai Bai was entitled to a share in
her husband’s properties then the suit proper-
ties must be held to have been allotted to her
in accordance with law. As the law then stood
she had only a life interest in the properties
taken by her. Therefore the recital in the
deed in question that she would have only a
life interest in the properties allotted to
her share is merely recording the true legal
position. Hence it is’ not possible to con-
clude that the properties in question were
given to her subject to the condition of her
enjoying it for her life time. Therefore the
trial court as well as the first
Appellate Court were right in holding that the
facts of the case do not fall within s. 14(2)
of the Hindu Succession Act, 1955."
It will be seen from these observations that even though the
property was acquired by Subhrai Bai under the instrument of
partition, which gave only a limited interest to her in the
property, this Court held. that the case fell within sub-
section (1) and not sub-section (2). The reason obviously
was that the property was ’given to Subbrai Bai in virtue of
a pre-existing right inhering in her and when the instrument
of partition provided that she would only have a limited
interest in the property, it merely provided for something
which even otherwise would have been the legal position
under the law as it then stood. It is only when property is
acquired by a Hindu female as a new grant for the first time
and the instrument, decree; order or award giving the
property prescribes the terms on which it is to be held by
the Hindu female, namely, as a restricted owner, that sub-
section (2) comes into play and excludes the applicability
of sub-section (1). The object of sub-section (2), as
pointed out by this Court in Badri Persad’s case (supra)
while quoting with approval the observations made by the
Madras High Court in Rangaswami Naicker v. Chinnammal(1), is
"only to remove the disability of women imposed by law and
not to interfere with contracts, grants or decree etc. by
virtue of which a woman’s right was restricted" and, there-
fore, where property is acquired by a Hindu female under the
instrument in virtue of a pre-existing
(1) A.I.R. 1964 Mad. 387.
272
right, such as a right to obtain property on partition or a
fight to maintenance and under the law as it stood prior to
the enactment of the Act, she would have no more than limit-
ed interest in the property, a provision in the instrument
giving her limited interest in the property would be merely
by way of record or recognition of the true legal position
and the restriction on her interest being a "disability
imposed by law" would be wiped out and her limited interest
would be enlarged under sub-section (1). But where property
is acquired by a Hindu female under an instrument for the
first time without any pre-existing right solely by virtue
of the instrument, she must hold it on the terms on which it
is given to her and if what is given to her is a restricted
estate, it would not be enlarged by reason of sub-section
(2). The controversy before us, therefore, boils down to
the narrow question whether in the ’present case the proper-
ties were acquired by the appellant under the compromise in
virtue of a pre-existing right or they were acquired for the
first time as a grant owing its origin to the compromise
alone and to nothing else.
Now, let us consider how the properties in question came
to be acquired by the appellant under the compromise. The
appellant claimed maintenance out of the joint family
properties in the hands of the respondent who was her
deceased husband’s brother. The claim was decreed in favour
of the appellant and in execution of the decree for mainte-
nance, the compromise was arrived at between the parties
allotting the properties in question to the appellant for
her maintenance and giving her limited interest in such
properties. Since the properties were allotted to the appel-
lant in lieu of her claim for maintenance, it becomes neces-
sary to consider the nature of the right which a Hindu widow
has to be maintained out of joint family estate. 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 Rant Bai v. Shri Yadunanden Ram,(1) 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 any one
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
maintenance, a purchaser buying with notice of her claim is
not entitled to possession of that property without first
securing proper maintenance for her, vide Rachawa & Ors. v.
Shivayanappa (2) cited with approval in Ranibai’s case
(supra). It is, therefore, clear
(1) [1969] 3 S.C.R. 789.
(2) I.L.R. 18 Bom. 679.
273
that under the Sastric 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 in the joint family property and even .if no specif-
ic charge i.s created, this right would be enforceable
against joint family property in the hands of a volunteer
or a purchaser taking it with notice of her claim. The
right of the widow to be maintained is of course not a ]us
in rein, 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 satisfac-
tion of her jus ad rem, namely, the right to be main-
tained out of the joint family property. It 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 effectuating such pre-
existing right and not making a grant of the 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 proper-
ty 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 a case.
We find that there are several High Courts which have
taken the same view which we are taking in the present case.
We may mention only a few of those decisions, namely, B.B.
Patil v. Gangabai(1), Sumeshwar Misra v. Swami Nath
Tiwari,(2) Reddayya v. Varapula Venkataraju,(3) Lakshmi Devi
v. Shankar Jha (4) N. Venkanegouda v. Hanemangouda,(5) Smt.
Sharbati Devi v. Pt. Hiralal,(6) Sesadhar Chandra Dev v.
Smt. Tara Sundari Dasi,(7) Saraswathi Ammal v. Anantha
Shenoi (8) and Kunji Thomman v. Meenakshi(9). It is
(1) A.I.R. (1972) Bom. 16
(2) A.I.R. (1970) Pat. 348.
(3) A.I.R. (1965) A.P. 66
(4) A.I.R. (1967) Mad.429
(5) A.I.R. (1972) Mys. 286.
(6) A.I.R. (1964) Pub. 114.
(7) A.I.R. (1962) Cal. 438.
(8) A.I.R. (1966) Ker. 56.
(9) I.L.R. (1970) 2 Ker. 45.
3-- 436SCI/77
274
not necessary to refer to these decisions since we have
ourselves discussed the question of construction of sub-
sections (1) and (2) of section 14 on Principle and pointed
out what in our view is the correct construction of these
provisions. We may only mention that the judgment of Pale-
kar, J., as he then was, in B.B. Patii v. Gangabai (supra)
is a well reasoned judgment and it has our full approval.
The contrary view taken in Gurunadham v. Sundarajulu,(1)
Santhanam v. Subramania,(2) S. Kachapalava Gurukkal v. I7.
Subramania Gurukkal(3), Shiva Pujan Rai v. Jamuna Missir,(4)
Gopisetti Kondaiah v. Gunda Subbarayudu(5), Ram Jag Misir v.
The Director Consolidation, U.p.(6) and Ajab Singh v. Ram
Singh (7) does not, in our opinion, represent the correct
law on the subject and these cases must be held to be wrong-
ly decided.
In the circumstances, we reach the conclusion that since
in the present case the properties in question were acquired
by the appellant under the compromise in lieu or satisfac-
tion of her right of maintenance, it is sub-section (1 ) and
not sub-section (2) of section 14 which would be applicable
and hence the appellant must be deemed to have become full
owner of the properties notwithstanding that the compromise
prescribed a limited interest for her in his properties. We
accordingly allow the appeal, set aside the judgment and
decree of the High Court and restore that of the District
Judge, Nellore. The result is that the suit will stand
dismissed but with no order as to costs.
FAZAL ALI, J. This is a defendant’s appeal by special
leave against the judgment of the High Court of Andhra
Pradesh dated November 22, 1967 and arises in the following
circumstances.
Venkatasubba Reddy, husband of appellant No. 1 Vaddebo-
yina Tulasamma--hereinafter to be referred to as ’Tulasam-
ma’--died in the year 1931 in a state of jointness with his
step brother V. Sesha Reddy and left behind Tulasamma as his
widow. On October 11, 1944 the appellant Tulasamma filed
a petition for maintenance in forma pauperis against the
respondent in the Court of the District Munsif, Nellore.
This application was set ex parte on January 13, 1945 bug
subsequently the petition.was registered as a suit and an
ex parte decree was passed against the respondent on June
29, 1946. On October 1, 1946 the respondent filled an
interlocutory application for recording a compromise alleged
to have been arrived at between the parties out of Court on
April 9, 1945. The appellant Tulasamma opposed this
application which was ultimately dismissed on October 16,
1946. An appeal filed by the respondent to the District
Judge,Nellore was also dismissed. Thereafter Tulasamma
put the decree in
(1) I.L.R. (1968) 1 Mad. 487.
(2) I.L.R. (1967) 1 Mad. 68.
(3) A.I.R. (1972) Mad. 279.
(4) I.L.R.. (1947) Pat. 1118.
(5) I.L.R. (1968) A.P. 621.
(6) A.I.R. (1975) ALl. 151.
(7) A.I.R. (1969) J & K 92.
275
execution and at the execution stage the parties appear to
have arrived at a settlement out of Court which was certi-
fied by the Executing Court on July 30, 2949 under O. XXI r.
2 of the Code of Civil Procedure. Under the compromise the
appellant Tulasamma was allotted the Schedule properties,
but was to enjoy only a limited interest therein with no
power of alienation at all. According to the terms of the
compromise the properties were to revert to the plaintiff
after the death of Tulasamma. Subsequently Tulasamma con-
tinued to remain in possession of the properties even after
coming into force of the Hindu Succession Act, 1956--here-
inafter to be referred to as. ’the 1956 Act, or ’the Act
of 1956’. By two registered deeds dated April 12, 1960 and
May 26, 1961, the appellant leased out some of the proper-
ties to defendants 2 & 3 by the first deed and sold some of
the properties to defendant 4 by the second ’deed. The
plaintiff/respondent filed a suit on July 31, 1961 before
the District Munsiff, Nellore for a declaration that the
alienation made by the widow Tulasamma were not binding on
the plaintiff and could remain valid only till the life-time
of the widow. The basis of the action filed by the plain-
tiff was that as the appellant Tulasamma had got a restrict-
ed estate only under the terms of the compromise her inter-
est could not be enlarged into an absolute interest by the
provisions of the 1956 Act in view of s. 14(2) of the said
Act. The suit was contested by the appellant Tulasamma who
denied the allegations made in the plaint and averred that
by virtue of the provisions of the 1956 Act she had become
the full owner of the properties with absolute right of
alienation and the respondent had no locus standi to file
the present suit. The learned Munsiff decreed the suit of
the plaintiff holding that the appellant Tulasamma got
merely a limited interest in the properties which could be
enjoyed during her lifetime and that the alienations were
not binding on the reversioner. Tulasamma then filed an
appeal before the District Judge Nellore, who reversed the
finding of the Trial Court, allowed the appeal and dismissed
the plaintiff’s suit holding that the appellant Tulasamma
had acquired an absolute interest in the properties by
virtue of the provisions of the 1956 Act. The learned
Judge further held that sub-s. (2) of s. 14 had no applica-
tion to the present case, because the compromise was an
instrument in recognition of a pre-existing right. The
plaintiff/respondent went up in second appeal to the High
Court against the judgment of the District Judge. The plea
of the plaintiff/respondent appears to have found favour
with the High Court which held that the case of the appel-
lant was clearly covered by s. 14(2) of the Hindu Succes-
sion Act and as the compromise was an instrument as contem-
plated by s. 14(2) of the 1956 Act Tulasamma could not get
an absolute interest under s. 14(1) of the Act. The High
Court further held’ that by virtue of the compromise the
appellant Tulasamma got title to the properties for the
first time and it was not a question of recognising a pre-
existing right which she had none in view of the fact that
her husband had died even before the Hindu Women’s Right to
Property Act, 1937. We might further add that the facts.
narrated above have not been disputed by counsel for the
parties.
The appeal has been argued only on the substantial
questions of law which turn. upon the interpretation of
sub-ss. (1) & (2) of s. 14
276
of the Hindu Succession Act, 1956. It is common ground that
in this case as also in the. other connected appeals, the
properties in suit were allotted under a compromise or an
instrument in lieu of maintenance. It is also admitted that
the appellant Tulasamma was in possession of the properties
at the time when the 1956 Act came into force. Finally it is
also not disputed that the compromise did purport to confer
only a limited interest on the widow restricting completely
her power of alienation. We have now to apply the law on
the facts mentioned above. Similar points were involved in
the other two appeals Nos. 135 of 1973 and 126 of 1972. We
have heard all the, three appeals together and in all these
appeals counsel for the parties have confined their argu-
ments only to the questions of law without disputing the
findings of fact arrived at by the Courts below..
Thus the two points that fall for determination in this
appeal may be stated thus:
.lm18
(1) whether the instrument of compromise
under which the properties were given to
the appellant Tulasamma before the 1956 Act
in lieu of maintenance falls within s.
14(1) or is covered by s. 14(2) of the
1956, Act and
(2) Whether a Hindu widow has a right to
property in lieu of her maintenance, and
if such a right is conferred on her
subsequently by way of maintenance it would
amount to mere recognition of a preex-
isting right or a conferment of new title
so as to fall squarely within s. 14(2) of
the 1956 Act.
There appears to be serious divergence of judicial
opinion on the subject and the High Courts have taken con-
trary views on this point. Some High Courts, particularly,
Bombay, Punjab, Calcutta and Patna have veered round to the
view that a right of maintenance claimed by a Hindu widow is
a pre-existing right and any instrument or document or
transaction by which the properties are allotted to the
widow in lieu of her maintenance would only be recognition
of a pre-existing right and would not confer any new title
on the window. Following this line of reasoning the afore-
said High Courts have held that the properties allotted to
the Hindu widow even though they conferred a limited inter-
est would fall clearly within the ambit of s. 14(1) of the
1956 Act by virtue of which the limited interest would be
enlarged into an absolute interest on the coming into force
of the 1956 Act. On the other hand the Orissa, Allahabad,
Madras and Andhra Pradesh High Courts have taken a contrary
view and have held that as the Hindu widow’s right to
maintenance is not a right to property, property allotted
to her in lieu of maintenance confers on her a right or
title to the property for the first time and therefore such
Conferment is protected by s. 14(2) of the 1956 Act and is
not covered by s. 14(1). Unfortunately, however, there is no
decision of this Court which is directly in point, though
there are some decisions which tend to support the view
taken by the Bombay High Court.
277
Before, however, resolving this important dispute it may
be necessary to consider the real legal nature of the
incident of a Hindu widow’s right to maintenance. In order
to determine this factor we have to look to the concept of a
Hindu marriage. Under the Shastric Hindu Law, a marriage,
unlike a marriage under the Mohammadan Law which is purely
contractual in nature, is a sacrament--a religious ceremony
which results in a sacred and a holy union of man and wife
by virtue of which the wife is completely transplanted in
the household of her husband and takes a new birth as a
partner of her husband becoming a part and parcel of the
body of the husband. To a Hindu wife her husband is her God
and her life becomes one of selfless service and unstinted
devotion and profound dedication to her husband. She not
only shares the life and love the joys and sorrows, the
troubles and tribulations of her husband but becomes an
integral part of her husband’s life and activities. Cole-
brooke in his book ’Digest of Hindu Law’ Vol. II de-
scribes the status of wife at p. 158 thus:
"A wife is considered as half the body of
her husband, equally sharing the fruit of pure
and impure acts; whether she ascend "the pile
after him, or survive for the benefit of her
husband, she is a faithful wife."
This being the position after marriage, it is manifest that
the law enjoins a corresponding duty on the husband to
maintain his wife and look after her comforts and to provide
her food and raiments. It is well settled that under the
Hindu!Law the husband has got a personal obligation to
maintain his wife and if he is possessed of properties
then his wife is entitled as of right to be maintained out
of such properties. The claim of a Hindu widow to be main-
tained is not an empty formality which is to be exercised as
a matter of concession or indulgence, grace or gratis or
generosity but is a valuable spiritual and moral right which
flows from the spiritual and temporal relationship of the
husband an wife. As the wife is in a sense a part of the
body of her husband, she becomes co-owner of the property of
her husband though in a subordinate sense. Although the
right of maintenance does not per se create a legal charge
on the property of her husband, yet the wife can enforce
this right by moving the Court for passing a decree for
maintenance by creating a charge. This right is available
only so long as the wife continues to be chaste. Thus the
position is that the right of maintenance may amount to a
legal charge if such a charge is created either by an agree-
ment between the parties or by decree.
There are a number of authorities which have taken the
view that even if the property is transferred and the trans-
feree takes the property with notice of the right of the
widow to be maintained out of the property, the purchaser
takes the obligation to maintain the widow out of the
property purchased and the wife or widow can follow the
property in the hands of the purchaser for the limited
purpose of her maintenance. We shall, however, deal with
these authorities a little later.
278
Colebrooke in his ’Digest of Hindu Law Vol. 1I, quotes the.
Mahabharata at p. 121 thus:
"Where females are honoured, there the
deities are pleased; but where they are
unhonoured, there all religious acts become
fruitless."
This clearly illustrates the high position which is bestowed
on Hindu women by the Shastric Law. Again Colebrooke in his
book Vol. II at p. 123, while describing the circumstances
under which the maintenance is to be given to the wife,
quotes Manu thus:
"MANU :--Should a man have business
abroad, let him assure a fit maintenance to
his wife, and then reside for a time in a
foreign country; since a wife, even though
virtuous, may be tempted to act amiss, if she
be distressed by want of subsistence:
While her husband, having settled her
maintenance, resides abroad, let her continue
firm in religious austerities; but if he leave
no support, let her subsist by spinning an
other blameless arts."
This extract clearly shows that there is a legal obligation
on the part of the husband to make arrangements for his
wife’s due maintenance even if he goes abroad for business
purposes. Colebrooke again quotes Yajnawalkya at p. 243
of his book Vol. thus:
"When the father makes an equal partition
among his sons, his wives must have equal
shares with them, if they have received no
wealth either from their lord or from his
father.
If he makes an equal partition among his sons
by his own choice, he must give equal shares
to such of his wives also as have no male
issue."
This shows that when a partition is effected, the Hindu Law
enjoins that the wife must get an equal share with the sons,
thus reinforcing the important character of the right of
maintenance which a Hindu wife or widow possesses under the
Hindu Law.
Similarly Gopalchandra Sarkar Sastri dealing with the
nature and incidents of the Hindu widow’s right to mainte-
nance observes in his treatise ’Hindu Law’ at p. 533 thus:
"When the husband is alive, he is per-
sonally liable for the wife’s maintenance,
which is also a legal charge upon his proper-
ty, this charge being a legal incident of her
marital co-ownership in all her husband’s
property ......But after his death, his
widow’s right of maintenance becomes limited
to his estate, which, when it passes to any
other heir, is charged with the
same ......... There cannot be any doubt
that under Hindu law the wife’s or widow’s
maintenance is a legal charge on the husband’s
estate; but the Courts appear to hold,
279
in consequence of the proper materials not
being placed before them, that it is not so by
itself, but is merely a claim against the
husband’s heir, or an equitable charge on his
estate; hence the husband’s debts are held to
have priority, unless it is made a charge on
the property by a decree."
The view of the author appears to be that the Courts hold
that the right of maintenance of a widow does not amount to
a legal charge and this is so because proper materials were
not placed before the Courts. In other words, the author
seems to indicate that the original Hindu Law contained
clear provisions that the right of! maintenance amounts to a
charge on the property of her husband and the obligation
runs; with the property so that any person who inherits the
property also takes upon the obligation to maintain the
widow. Sastri quotes from the original texts various ex-
tracts regarding the nature and extent of the right of
maintenance of the Hindu women some of which may be extract-
ed thus:
"The support of the group of persons who
should be maintained, is the approved means
of attaining heaven, but hell is the man’s
portion if they suffer; therefore he should
carefully maintain them.
The father, the mother, the Guru (an
elderly relation worthy of respect), a wife,
an offspring, poor dependants, a guest, and a
religious mendicant are declared to be the
group of persons who are to be
maintained.--Manu, cited in Srikrishna’s
commentary on the Dayabhaga, ii, 23.
It is declared by Manu that the aged
mother and father, the chaste wife, and an
infant child must be maintained even by doing
a hundred misdeeds,--Manu cited in the
Mitak- ’ shara while dealing with gifts."
The last extract dearly shows the imperative nature of the
duty imposed on the owner of the property to maintain wife,
aged mother, father etc. even at the cost of perpetrating a
hundred misdeeds.
Similarly Sastri in his book quotes Yajnaval-
kya at p. 523 thus:
"Property other than what is required for
the maintenance of the family may be given."
The learned author highlights the importance of the
right maintenance as being a charge on the property of the
husband and observes as follows:
"The ancestral immovable property is the
hereditary source of maintenance of the mem-
bers of the family, and the same is charged
with the liability of supporting its members,
all of whom acquire a right to, such property
from the moment they become members of the
family, by virtue of which they are at least
entitled to maintenance out of the same. Such
280
property cannot be sold or given away except
for the support of the family; a small portion
of the same may be alienated, if not incompat-
ible with the support of the family.
There is no difference between the two
schools as regards the view that the ances-
tral property is charged with the maintenance
of the members of the family, and that no
alienation can be made, which will prejudi-
cially affect the support of the group of
persons who ought to be maintained. Hence
heirs are bound to maintain those whom the
last holder was bound to maintain."
The author further points out that under the Mitakshara
law the daughter-in-law does, with her husband, acquire a
right to the ancestral property, since her marriage, but she
becomes her husband’s co-owner in a subordinate sense, and
the principal legal incident of this ownership is the right
to maintenance, which cannot be defeated by gift or devise
made by the holder of such property. Similar observations
have been made by the learned author at p. 528 of the book
which may be extracted thus:
"According to both the schools, the
lawfully wedded wife acquires from the moment
of her marriage a right to the property be-
longing to the husband at the, time and also
to any property that may subsequently be
acquired by him, so that she becomes a co-
owner of the husband, though her right is not
co-equal to that of the husband, but a subor-
dinate one, owing to her disability founded on
her status of perpetual or life long tutelege
or dependence.
.............................
This right of the wife to maintenance
from her husband is not lost even if the
husband renounce Hinduism.
This right subsists even after the
husband’s death although her husband’s right
as distinguished from hers may pass by suvi-
vorship or by succession to sons or even to
collaterals; these simply step into the posi-
tion of her husband, and she is required by
Hindu law to live under their guardianship
after her husband’s death."
Finally it is pointed out by the learned author at p.
529 of the Book that the right which a woman acquires to her
husband’s property subsists even after his death and ob-
served thus:
"According to both the schools, the
right which a woman acquires to her husband’s
property subsists after his death, whether his
interest passes by succession or by survivor-
ship to the male issue or any other person,
and that this right does not depend upon
the widow’s not possessing other means
of support."
281
Summarising the nature of the liability of the husband
to maintain his wife, the learned author observed as follows
at p. 533 of his Book:
"When the husband is alive, he is person-
ally liable for the wife’s maintenance, which
is also a legal charge upon his property, this
charge being a legal incident of her marital
co-ownership in all her husband’s
property ........ But after ’his death, his
widow’s right of maintenance becomes limited
to his estate, which, when it passes to any
other heir, is charged with the
same ......... There cannot be any doubt
that under Hindu law the wife’s or widow’s
maintenance is a legal charge on the hus-
band’s estate; but the Courts appear to
hold, in consequence of the proper materials
not being placed before them, that it is not
so by itself, but is merely a claim against
the husband’s heir, or an equitable charge on
his estate; hence the husband’s debts are held
to have priority, unless it is made a charge
on the property by a decree."
To sump up, therefore, according to. Sastri’s interpre-
tation of Shastric Hindu Law the right to maintenance
possessed by a Hindu widow is a very important right which
amounts. to a charge on the property of her husband which
continues to the successor of the property and the wife is
regarded as a sort of co-owner of the husband’s property
though in a subordinate sense, i.e. the wife has no dominion
over the property.
Similarly Mayne in his "Treatise on Hindu Law & Usage",
11th Edn., has traced the history and origin of the right of
maintenance of a Hindu woman which according to him arises
from the theory of an undivided family where the head of the
family, is .bound to maintain the members including their
wives and their children. The learned author observes
thus: (p. 813).
"The importance and extent of the right
of maintenance necessarily arises from the
theory of an undivided family. The head of
such a family is bound to maintain its mem-
bers, their wives and their children, to
perform their ceremonies and to defray the
expenses of their marriages;"
Again at p. 816 para 684 the author stresses the fact
that the maintenance of a wife is a matter of personal
obligation on the part of the husband and observes thus:
"The maintenance of a wife, aged parents
and a minor son is a matter of personal obli-
gation arising from the very existence of the
relationship and quite independent of the
possession of any property, ancestral or
acquired ........
’It is declared by Manu that the aged mother
and father, the chaste wife and an infant
child must be maintained even by doing a
hundred misdeeds."
282
Again it has been observed at p. 818 para
687:
"The maintenance of a wife by her hus-
band is, of course, a matter of personal
obligation., which attaches from the moment
of marriage."
The author points out at p. 821 paragraph 689 that even
after the coming into force of the Hindu Women’s Right to
Property Act, 1937 which confers upon the widow a right of
succession in respect of the non-agricultural property, she
is still entitled to maintenance from the family property.
The author observes thus:
"It cannot, therefore, be said that the
reason of the right has ceased to exist and
the right is gone. It was accordingly held
that the widow of a deceased coparcener is
still entitled to maintenance notwithstanding
her right under the Act to a share in. the
non-agricultural part of the family estate."
Furthermore, the author cites the passage of Narada
cited in Smriti Chandrika regarding which there is no
dispute. The saying runs thus:
"Whichever wife (patni) becomes a widow
and’ continues virtuous, she is entitled to be
provided with food and raiment."
At p. 822 para 690 the author points out that the right
of a widow to be maintained is taken over even by the heirs
of the husband who succeed to his property either by inheri-
tance or by survivorship. In this connection the following
observations are made:
"She is entitled to be maintained where
her husband’s separate property is taken by
his male issue. Where, at the time of his
death, he was a coparcener she is entitled to
maintenance as against those who take her
husband’s share by survivorship."
The Hindu law is so jealous in guarding the interests .
of Hindu women that the obligation for maintaining the Hindu
women falls even on the King when he takes the estate by
escheat or by forfeiture.
Similarly Mulla in his book "Hindu Law", 14th Edn.,
describes the incidents and characteristics of Hindu wife’s
right to maintenance and observes thus at p. 597:
"A wife is entitled to be maintained
by her husband, whether he possesses property
or not. When a man with his eyes open marries
a girl accustomed to a certain style of liv-
ing, he undertakes the obligation of maintain-
ing her in that style. The maintenance of a
wife by her husband is a matter of personal
obligation arising from the very existence of
the relationship, and quite independent of the
possession by the husband of any property,
ancestral or self acquired."
283
We might further mention that the Hindu wom-
en’s right to maintenance finally received
statutory recognition and the entire law on
the subject was consolidated and codified by
the Hindu Married Women’s Right to Separate
Maintenance and Residence Act, 1946--hereinaf-
ter to be referred to as ’the Act of
1946’--which came into force on April 23,
1946. Thus there appears to be complete
unanimity of the various schools of Hindu law
on the important incidents and indicia of the
Hindu women’s right to maintenance which has
now received statutory recognition and which
only shows that the right to maintenance
though not an indefeasible right to property
is undoubtedly a pre-existing right. We
shall now refer to some of the authorities
which have dealt with this aspect of the
matter.
In Narayan Rao Ramchandra Pant v.
Ramabai(1), the Judicial Committee pointed out
that the widow’s right to maintenance arises
from the common law which developed from time
to time. justice West of the Bombay High
Court appears to have entered into a very
elaborate discussion of the entire law on the
subject in Lakshman Ramchandra Joshi and
Anr. v. Satyabhamabai(2) and observed as
follows:
"These several authorities, no doubt,
afford, in combination, a strong support to
the proposition that a widow’s maintenance,
especially as against the sons, the a charge
on the estate, a right in re in the fullest
sense adhering to the property, into whatever
hands it may pass."
These observations were reiterated in a later case in Narba-
dabai v. Mahadeo Narayan, Kashinath Narayan and Shamabai(3).
The observations of West J., in Lakshman Ramchandra Joshi
and Anr’s case (supra) were fully approved by the Judicial
Committee in Mst. Dan Kuer v. Mst. Sarla Devi(4), where it
was observed:
"But, apart from this circumstance, the
judgment of West J., whose dissertations on
Hindu Law must always command great esteem,
contains an exposition of the law on this
point, and the case is therefore rightly
regarded as a leading authority on the ques-
tion. In the course of his judgment that
learned judge quotes with approval the remarks
of Phear J., in Srimati Bhagabati v. Kanailal
Mitter--(1872) 8 Ben. L.R. 225--that "as
against one who has taken the property as
heir, the widow has a right to have a proper
sum for her maintenance ascertained and made a
charge on the property in his hands. She may
also, doubtless, follow the property for this
purpose into the hands of anyone who. takes it
as a volunteer, or with notice of her having
set up a claim for maintenance against the
heir" and that "when the property
(1) L.R. 6 I.A. 114.
(2) I.L.R. 2 Bom. 494.
(3) I.L.R. 5 Bom. 99.
(4) L.R. 73 I.A. 208.
284
passed into the hands of a bona’ fide
purchaser without notice, it cannot be
affected by anything short of an already
existing proprietary right; it cannot be
subject to that which is not already a specif-
ic charge, or which does not contain all
the elements necessary for its ripening into a
specific charge."
Summarising the entire position the Privy Council enunci-
ated the law thus:
"The true rule of Hindu law in such matters
would appear to be as follows: Two, obliga-
tions confront a joint Hindu family. (1) The
obligation to pay the debts (for instance, of
the father) binding on the family; and (2) the
moral obligation "to provide maintenance to
the widows of the family." The latter
obligation would, under certain circumstances,
ripen into a legal obligation, as, for in-
stance, when a charge is created on specific
property of the family either by agreement
or a decree of the court; that, so long as
neither of these two obligations has taken
the form of a charge on the family property,
the obligation to pay the binding debts will
have precedence (as, for instance, in the
course of the administration of the estate)
over mere claims of a female member’s main-
tenance, but, if either of these two obliga-
tions assumes the shape of a charge, it would
take precedence over the other."
In Pratapmull Agarwalla v. Dhanabati Bibi,(1) the Judicial
Committee pointed out that while a mother may not be the
owner of her share until partition is made and has no pro-
existing right with regard to the share in the property, but
she has a pro-existing right for maintenance. This Court
also has made similar observations in a large number of
cases regarding the nature and extent of the Hindu women’s
right to maintenance. In Rani Bai v. Shri Yadunandan Ram &
Artr (2) this Court, while dealing with a situation where
a widow claimed the right of maintenance but refused to hand
over possession of the property until she secured her proper
maintenance, observed as follows:
.lm 15
"It cannot be disputed that the appel-
lant who is the widow of a pre-deceased son
of Jangi Jogi was entitled to receive main-
tenance so long as she did not to marry out
of the estate of her father-in-law. Although
her claim for maintenance was not a charge
upon the estate until it had been fixed and
specifically charged thereupon her right was
not liable to be defeated except by transfer
to a bona fide purchaser for value without
notice of a claim or even with notice of a
claim unless the transfer was made with the
intention of defeating her right. The courts
in India have taken the view that where a
widow is in possession of a specific proper-
ty for the purpose of her maintenance a pur-
chaser buying with notice of her claim is not
entitled to
(1) L.R. 63 1.A. 33.
(2) [1969] 3 S.C.R. 789.
285
possession of that property without first
securing proper maintenance for her: [vide
Rachawa & others v. Shivayogappa---I. L.R. 18
Bom. 679] ...... In the present case it is
difficult to understand how the appellant
could be deprived of the possession of proper-
ties by a trespasser. Moreover she was presum-
ably in possession of these properties in lieu
of her right of maintenance and could not be
deprived of them even by Jugli Bai without
first securing proper maintenance for her out
of the aforesaid properties."
In Sheo Dyal Tewaree v. Judoonath Tewaree, (1) the Calcutta
High Court stressed the fact that although the widow may not
be the owner of a share but she had a pre-existing right of
maintenance.
Elucidating the nature and extent ofa right of a
Hindu wife to maintenance, the Calcutta High Court pointed
out in Srinath Das v. Probodh Chunder Das(2) that the right
of maintenance is really identified with the husband’s
property right though of a subordinate nature.
In Hemangini Dasi v. Kedarnath Kundu Chowdhury(3) the
Privy Council held that if the estate remained joint and
undivided the maintenance of the mother remained a charge
on the whole estate and that any share that the widow took
in the property which was equal to the share of a son was
really in lieu of maintenance for which the estate was
liable.
The position has been very succinctly stated and meticu-
lously analysed by a decision of the Madras High Court in
K.V..Thangavelu v. The Court of Wards, Madras,(4) where,
dealing with the entire history of the matter and relying on
various original texts of the Hindu jurists, the Madras High
Court pointed out that a cogent ground for preferring the
widow’s claim is to be found in her qualified or subordinate
co-ownership in the husband’s property declared by the
Mitakshara. The Court referred to verse 52 of Vyavaharad-
haya (chapter II) where the Mitakshara refers to Apastam-
ba’s Dharmasutra as follows:
"From marriage arises also jointness
(sahatwam) in the holding of property (dravya-
paragraphestiu)."
In an earlier case Sarojinidevi v. Subrahmanyam,(5) the
Madras High Court held that even after the coming into force
of the Hindu Women’s Right to Property Act, 1937, which did
not apply to agricultural lands, the right of the Hindu
widow to maintenance stood in tact and the widow was enti-
tled to maintenance notwithstanding her right under the Act
to a share in the non-agricultural part of the family es-
tate. To the same effect is an earlier decision
(1) (1868) 9 W.R. 6t.
(2) 11 C.L.J. 580.
(3) I.L.R. 16 Cal. 768.
(4) (1946) 2 M.L.J. 143.
(5) I.L.R. 1945 Mad. 61.
286
of the Madras High Court in Jayanti Subbiah v. Alamelu
Mangamma(’) where the High Court pointed out that under the
Hindu Law the maintenance of a wife by her husband is a
matter of personal obligation arising from the very exist-
ence of her relationship and quite independent of the pos-
session by the husband of any property ancestral or self-
acquired. We fully agree with this exposition of the law
which is supported by a large number of authorities as
discussed above.
In Yella’wa v. Bhimangavda(2), the Bombay High Court
was of the view that even the heir of the husband’s property
could not be allowed to recover possession from the widow
without first making proper arrangements for her mainte-
nance. This case was approved by this Court in Rani Bags
case (supra).
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
woman’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 hus-
band 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 obliga-
tion to maintain the widow;
(2) though the widow’s right to maintenance is
not a right to property but it is undoubtedly
pre-existing right in property, i.e. it is a
jus ad rem not jus in rem and it can be en-
forced 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 purchas-
er has notice of the widow’s right to mainte-
nance, the purchaser is legally bound to
provide for her maintenance;
(4) that the right to maintenance is undoubt-
edly a preexisting 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 to maintenance flows from
the social and temporal relationship between
the husband and the wife by virtue of which
the wife becomes a sort
I.L.R. 27 Mad. 45. (2) I.L.R. 18 Bom. 452.
287
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 enti-
tled 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.
With this preface regarding a Hindu woman’s right to
maintenance and the necessary concomitants and incidents of
those rights, we now proceed to determine the question of
law that arises for consideration in this appeal. Before
taking up that question, I might trace the historical growth
of the legislation introducing slow and gradual changes in
the Shastric Hindu from time to time. The exact origin of
Hindu Law is steeped and shrouded in antiquity and,
therefore, it is not possible to determine the ethics or
Justification for assigning a somewhat subordinate position
to a Hindu woman in matters of inheritance, marriage and
the nature of the limited interest which she took even after
inheriting her husband’s property. It is also strange that
the Hindu Law made no provision for divorce at all. This may
be due to ’the fact that during the time of Manu and Yajnav-
alkya the structure of the Hindu society was quite different
’and there being no social problem of the magnitude that we
have today, it was not considered necessary to break up the
integrity and solidarity of a Hindu family by allowing
ownership rights to the Hindu females. Another object may
have been to .retain the family property within the family
in order to consolidate the gains which a particular family
may have made. However, these are matters of speculation.
But one thing is dear, namely, that the Hindu jurists were
very particular in making stringent provisions safeguarding
the maintenance of the Hindu females either by the husband
or even by his heirs after his death. Perhaps they thought
that the property which a widow may receive in lieu of
maintenance or the expenses which may be incurred for her
maintenance would be a good substitute for the share which
she might inherit in her husband’s property. Nevertheless,
the Legislature appears to have stepped in from time to
time to soften the rigours of the personal law of Hindus by
adding new heirs, conferring new rights on Hindu females and
making express provisions for adoption, maintenance etc. It
appears that the question of conferring absolute interest on
the Hindu female had engaged the attention of the Legisla-
ture ever since 1941 but the idea took a tangible shape only
in 1954 when the Hindu Succession Bill was introduced and
eventually passed in 1956.. This Bill was preceded by a
Hindu Code Committee headed by Mr. B. N.
Rau who had made a number of recommendations which formed
the basis of the 1956 Act.
After the attainment of independence, the entire per-
spective changed, the nature of old human values assumed a
new complexion and the need for emancipation of womanhood
from feudal bondage became all the more imperative. Under
the strain and stress of
288
socio-economic conditions and a continuous agitation by the
female Hindus for enlargement of their rights a new look to
the rights of women as provided by the Shastric Hindu Law
had to be given. In pursuance of these social pressures, it
was necessary to set up a new social order where the women
should be given a place of honour and equality with the male
sex in every other respect. This was the prime need of the
hour and the temper of the times dictated the imperative
necessity of making revolutionary changes in the Hindu Law
in order to abolish the invidious distinction in matters of
inheritance between a male and a female. Similarly it was
realised that there should be express provision for divorce
on certain specified grounds inasmuch as the absence of
such a provision had perpetrated a serious injustice to the
Hindu females for a long time. It seems to me that it was
with this object in view that the Legislature of our free
country thought it as its primary duty to bring forth legis-
lation to remove the dangerous anomalies appearing in the
Hindu Law. Even during the British times, there were certain
legislation modifying certain provisions of the Hindu Law,
e.g., the Hindu Law Inheritance Act which added a few more
heirs including some females; the Hindu Women’s Right to
Property Act, 1937, which provided that on partition a widow
would be entitled to the same share as the sons in the
property of her husband. The Act of 1937, while giving a
share to the wife on partition had not disturbed her right
to claim maintenance which was preserved in tact and al-
though she was not permitted to sue for partition she was
undoubtedly entiled to sue for maintenance without having
recourse to the remedy of partition. After independence the
Parliament passed the Hindu Minority and Guardianship Act,
1956; the Hindu Adoptions and Maintenance Act, 1956; the
Hindu Marriage Act, 1956 which regulated the law of marriage
and divorce and ultimately the Hindu Succession Act, 1956
which provided for intestate succession. The Hindu Succes-
sion Act, 1956 was, therefore, undoubtedly a piece of social
legislation which fulfilled a long felt need of the nation
and was widely acclaimed by the entire people as would
appear from the debates which preceded the passing of the
Act.
It is in the light of these circumstances that we have
now to interpret the provisions of s. 14(1) & (2) of the Act
of 1956. Section 14 of the 1956 Act runs thus:
"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 inheri-
tance 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
289
or by prescription, or in any other manner
whatsoever, and also any such property held by
her as stridhana immediately before the com-
mencement 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."
This Court has interpreted the scope and ambit of s. 14(1)
and the Explanation thereto on several occasions and has
pointed out that the object of the legislation was to make
revolutionary and far-reaching changes in the entire struc-
ture of the Hindu society. The word "possessed" used in s.
14(1) has also been interpreted by this Court and it has
been held that the word has been used in a very wide sense
so as to include the st.ate of owning or having the property
in one’s power and it is not necessary for the application
of s. 14 (1) that a Hindu woman should be in actual or
physical possession of the property. It is sufficient if she
has a right to the property and the said property is in her
power or domain. In S.S. Munnalal v.S.S. Rajkumar (1) it
was held that mere declaration of the share of the widow
passed only an of her share under a preliminary decree would
fall within the ambit of s. 14(1) and even though the widow
did not get actual possession of the property until a final
decree is passed she would in law be deemed to be in posses-
sion of the property. In that case, the High Court had held
that mere declaration of the share of the widow passed only
an inchoate interest to her and she never came to possess
the share within the meaning of s. 14 of the Act and there-
fore the property remained joint family property. This
Court reversed the judgment of the High Court holding that
once a preliminary decree was passed in favour of the widow
granting her a share in the property she must be deemed to
be in possession of the property in question. Their
Lordships emphasised that the words "possessed by" used in
s. 14(1) clearly indicated that such a situation was envis-
aged by the Legislature. White interpreting the provisions
of s. 14 the Court also pointed out that the 1956 Act was a
codifying enactment which had made far-reaching changes in
the structure of the Hindu society and the object was to
sweep away traditional limitations placed on the rights of
the Hindu women. In this connection, the Court observed as
follows:
"The Act is a codifying enactment, and
has made farreaching changes .in the structure
of the Hindu law of inheritance, and succes-
sion. The Act confers upon Hindu females full
rights of inheritance, and sweeps away the
traditional limitations on her powers of
dispositions which were regarded under the
Hindu law as inherent in her
estate ..........Normally a right declared in
an estate by a preliminary decree would be
regarded as property, and there is nothing in
the context in which s. 14 occurs or in the
phraseology
(1) [1962] Supp. 3 S.C.R. 418. 4--436 SCI/77
290
used by the Legislature to warrant the view
that such a right declared in relation to the
estate of a joint family in favour of a Hindu
widow is not property within the meaning of
s. 14. In the light of the scheme of the Act
and its evolved purpose it would be difficult,
without doing violence to the language used in
the enactment, to assume that a right declared
in property in favour of a person under a
decree for partition is not a right to proper-
ty. If under a preliminary decree the right
in favour of a Hindu male be regarded a.s
property the right declared in favour of a
Hindu female must also be regarded as proper-
ty.
Earlier the Court observed in that very case as under:
"By s. 14 (1) the Legislature sought to
convert the interest of a Hindu female which
under the Sastric Hindu law would have been
regarded as a limited interest into an abso-
lute interest ’and by the explanation thereto
gave to the expression "property" the widest
connotation. The expression includes property
acquired by a Hindu female 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 what-
soever. By s. 14(1) manifestly it is intended
to convert the interest which a Hindu female
has in property however restricted "the nature
of that interest under the Sastric Hindu law
may be into absolute estate."
The matter was again considered by this Court in Eramma
v. Verrupanna (1) where it was held that before a widow can
get absolute interest under s. 14(1) she must have some
vestige of title, i.e. her possession must be under some
title or right and not be that of a rank trespasser. In
this connection the Court observed as follows:
"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 com-
mencement of the Act. It may be noticed that
the Explanation to s. 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 .......... It does not in any way
confer a title on the female Hindu where she
did not in fact possess any vestige of title.
It follows, therefore, that the section cannot
be interpreted so as to validate the illegal
possession of a female Hindu and it does not
confer any title on a mere trespasser. In
other words, the provisions of s. 14( 1 ) of
the Act cannot be attracted in the case of .
a Hindu female who is in possession of the
property of the last
(1) [1956] 2 S.C.R. 6’26.
291
male holder on the date of the commencement
of the Act when she is only a trespasser
without any right to property."
In Mangal Singh v. Smt. Ratno (1) a widow came into posses-
sion of her husband’s property in 1917 and continued to be
in possession of the same till 1954 when she was dispos-
sessed by a collateral of her husband under the orders of
the Revenue authorities. She filed a suit for recovery of
possession and during the pendency of the suit the Act of
1956 came into force. This Court upholding the judgment of
the High Court held that the dispossession of the widow
being illegal, she must be deemed to be, in the eye of law,
to continue in possession of the properties and acquired an
absolute interest with the coming into force of the Act of
1956. It was not a case where a Hindu female had parted
with her right so as to. place herself in a position where
she could in no manner exercise her rights in that property
any longer when the Act came into force. This Court
observed as follows:
"It is significant that the Legislature
begins s. 14(1) with the words "any property
possessed by a female Hindu" and not "any
property in possession of a female Hindu." If
the expression used had been "in possession
of" instead of "possessed by", the proper
interpretation would probably have been to
hold that, in order to apply this provision,
the property must be such as is either in
actual possession of the female Hindu or in
her constructive possession. The constructive
possession may be through a lessee, mortga-
gee, licensee, etc. The use of the expression
"possessed by" instead of the expression "in
possession of", in our opinion, was intended
to enlarge the meaning of this expression. It
is commonly known in English language that a
property is said to be possessed by a person,
if he is its owner, even though he may, for
the time being, be out of actual possession or
even constructive possession."
"It appears to us that the expression
used in s. 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 s. 14( 1 ), therefore, we hold
that 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."
Again, while referring to an earlier case, namely,
Eramma Verrupanna (supra), the Court clarified the position
thus:
"This case also, thus, clarifies that
the expression "possessed by" is not intended
to apply to a case of mere possession without
title, and that the legislature intended this
provision for eases where the Hindu female
possesses the right of ownership of ’the
property in question. Even
(1) [1967] 3 S.C.R. 454.
292
mere physical possession of the property
without the right of ownership will not at-
tract the provisions of this section. This
case, also, thus, supports our view that the
expression "possessed by" was used in the
sense of connoting state of ownership and,
while the Hindu female possesses the right of
ownership, she would become full owner if the
other conditions mentioned in the section are
fulfilled. The section will, however, not
apply at all to cases where the Hindu female
may have parted with her rights so as to place
herself in a position where she could,. in no
manner, exercise her rights of ownership in
that property any longer."
In Sukhram & Anr. v. Gauri Shanker &. Another(1) the
facts Were as follows:
Hukam Singh and Sukh Ram were two brothers. Chidda, the
second appellant was the son of Sukh Ram and thus Chidda,
Hukam Singh and Sukh Ram were members of a joint Hindu
family governed by the Benares School of Mitakshara Law.
Hukam Singh died in 1952 leaving behind his widow Krishna
Devi. On December 15, 1956, Krishna Devi sold half share of
the house belonging to the joint family. This sale was
challenged by the other members of the joint family on the
ground that Krishna Devi had merely a life interest. The
question raised .was whether Krishna Devi acquired an abso-
lute .interest in the properties after coming into force of
the Hindu Succession Act, 1956. It was argued before this
Court that according to the Benaras School, a male coparcen-
er was not entitled to alienate even for value his undivided
interest in the coparcenary without the consent of other
coparceners and, therefore, Krishna Devi could not have
higher rights than what her husband possessed. This Court,
however, held that in view of the express words of s. 14 of
the 1956 Act, once the widow was possessed of property
before or after the commencement of the Act, she held it as
full owner and not as a limited owner and, therefore, any
restriction placed by Shastric Hindu Law was wiped out by
the legislative intent as expressed in the Act of 1956. The
Court observed thus:
"But the words of s. 14 of the Hindu
Succession Act are express and explicit;
thereby a female Hindu possessed of property
whether acquired before or after the commence-
ment of the Act holds it as full owner and not
as a limited owner. The interest to which
Krishna Devi became entitled on the death of
her husband under s. 3(2) of the Hindu Women’s
Right to Property Act, 1937, in the property
of the joint family is indisputably her
"property" within the meaning of s. 14 of Act
30 of 1956, and when she became "full owner"
of that property she acquired right unlimited
in point of user and duration and uninhibited
in point of disposition."
(1) [1968] 1 S.C.R. 476.
293
This case indirectly supports the view that if the intention
of the Legislature was. to confer absolute interest on the
widow, no limitation can be spelt out’ either from the old
Shastric Law or otherwise which may be allowed to defeat the
intention. This Court went to the extent of holding that
the words in s. 14(1) are so express and explicit that the
widow acquired a right unlimited in point of user, though a
male member governed by .the Benaras school had no power of
alienation without the consent of other coparceners. Under
the Act the female had higher powers than the male because
the words of the statute did not contain any limitation at
all. On the parity of reasoning, therefore, where once a.
property is given to the widow in lieu of maintenance and
she enters in_to possession of that property, no amount of
restriction contained in the document can prevent her from
acquiring absolute interest in the property because the
contractual restriction cannot be higher than the old Hindu
Shastric Law or the express words the Act of 1956.
In Badri Prashad v. Smt. Kansa Devi(1) the prepositer died
in 1947 leaving behind five sons and a widow. Soon after
his death disputes arose between the parties and the matter
was referred to an arbitrator in 1950. The arbitrator in
his award allotted shares to the parties wherein it was
stated that the widow would only have widow’s estate in
those properties. While .the widow was in possession of the
properties, the Act of 1956 came into force and the question
arose whether or not she became full owner of the property
or she only had a restricted interest as provided in the
grant, namely, the award. This. Court held that although
the award had given a restricted estate, but this was only a
narration of the state of law as it existed when the award
was made. As the widow, however, inherited the property
under the Hindu Women’s Right to Property Act, her interest
became absolute with the passing of the Act of 1956 and she
squarely fell within the provisions of s. 14(1) .of the Act.
It was further held that the mere fact that the partition
was by means; of an award would not bring the matter within
s. 14(2) of the Act, because the interest given to, the
widow was: on the basis of pre-existing right and not a new
grant for the first time. This Court observed as follows:
"The word "acquired" in sub-s. (1 ) has also to be
given the widest possible meaning. This would be. so be-
cause. of the language of the Explanation which takes sub-s.
(1) applicable to acquisition of property by inheritance or
devise or at a partition or in lieu of maintenance or
arrears of maintenance or by gift or by a female’s own skill
or exertion or by purchase or prescription or in any manner
whatsoever. Where at the commencement of the Act a female
Hindu has a share in joint properties which are later on
partitioned by metes and bounds and she gets’ possession of
the properties allotted to her there can be no. manner of
doubt that she is not only possessed of that property at the
time of the coming into force of the Act but has. also
acquired the same before its commencement."
(1) [1970] 2 S.C.R. 95.
294
This Court relied upon two earlier decisions: viz. S.S.
Munnalal’s case and Sukhram’s case (supra). This case
appears to be nearest to the point which falls. for determi-
nation in this appeal, though it does not cover the points
argued before us directly.
Lastly our attention was. drawn to. an unreported deci-
sion of this Court in Nirmal Chand v. Vidya. Wanti (dead) by
her legal representatives(1) in which case Amin Chand and
Lakhmi Chand were the owners of agricultural and non-agri-
cultural properties. The properties were partitioned in the
year 1944 and Lakhmi Chand died leaving behind him the
appellant and his second wife Subhrai Bai and his daughter
by this wife. There was a regular partition between Amin
Chand and Subbrai Bai by a registered document dated Decem-
ber 3, 1945 under which a portion of the property was allot-
ted to Subhrai Bai and it was provided in the document that
Subhrai Bai would be entitled only to the user of the land
and she will have no right to alienate it in any manner but
will have only life interest. Later, Subhrai Bai bequeathed
the property in 1957 to her daughter Vidya Wanti. Subhrai
Bai died and Vidya Wanti’s name was mutated in the papers
after coming into ,force of the Act of 1956. The point
raised before the High Court was. that as Subbrai Bai had
been given only a limited interest in the property she had
no. power to bequeath the property to her daughter as her
case was not covered by s. 14(1) but fell under s. 14(2) of
the Act. This Court pointed out that at the time when the
property was allotted to. Subbrai Bai, the Hindu Succession
Act had. not come into force and according to the state of
Hindu Law as it’ then prevailed Subbrai Bai was undoubtedly
entitled only to a limited interest. There was a restric-
tion in the partition deed that Subhrai Bai would enjoy
usufruct of the property only and shall not be entitled to,
make any alienation. It was not a restriction as such but a
mere. statement of law .as it then prevailed. Such a re-
striction, therefore,’ would not bring the case of Subhrai
Bai under s. 14(2) of the Act and, therefore, she would
acquire an absolute interest after the passing of the Act of
1956 and was, therefore, competent to execute the will in
favour of her daughter. This Court observed as follows:
"If Subhrai Bai was entitled to. a share
in her husband’s properties then the suit
properties must be held to. have been allotted
to her in accordance with law. As the law
then stood she had only a life interest in the
properties taken by her. Therefore the recital
in the deed in question that she would have
only a life interest in the properties allot-
ted to. her share is merely recording the true
legal position. Hence it is not possibIe to,
conclude that the properties in question were
given to her subject to the condition. of her
enjoying it for her lifetime. Therefore the
trial court as well as the first Appellate
Court were right in holding that the facts of
the case do not fail within s. 14(2) of the
Hindu Succession Act, 1956.
In the light of the above decisions of this Court the
following principles appear to be clear:
(1) C.A. No. 609 of 1965 decided on Jan. 21, 1969.
295
(1) that the provisions of s. 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 sub-s. (2) of
s. 14 does not refer to any transfer which
merely recognises a pre-existing right without
creating or conferring a new title on the
widow. This was clearly held by this Court in
Badri Parshad’s case (supra).
(3) that the Act of 1956 has made revolution-
ary 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 distinc-
tion between a Hindu male and female in
matters of intestate succession;
(4) that sub-s. (2) of s. 14 is merely a
proviso to. subs. (1) of s. 14 and has to be
interpreted as a proviso and not-in a manner
so’ as to destroy the effect of the main
provision.
We have given our anxious consideration. to the language
of s. 14(1) & (2) and we feel that o.n a proper interpreta-
tion of s. 14(2) there does not appear to be any real incon-
sistency between s. 14(1),. the explanation thereto and
sub-s. (2). To begin with, s. 14(1) does not limit the
enlargement of the estate of a Hindu widow to any particular
interest in the property. On the other hand the Explanation
to s. 14(1) brings out the real purpose. of s. 14(1) by
giving an exhaustive category of cases where principle of s.
14(1 ) has to operate, i.e. to ’cases where a Hindu female
would get an absolute interest. The argument of the
learned counsel for the appellant is that as the right of
maintenance was a pre-existing right, any instrument or
transaction by which the property was allotted to the appel-
lant would not be a new transaction so as to create a new
title but would be only in recognition of a pre-existing
right, namely, the right of maintenance. On the other hand
Mr. Natesan appearing for the respondents submitted that the
object of the proviso was to. validate rather than disturb
the past transactions which had 131aced certain restrictions
or curbs on the power of a Hindu female and as. the language
of the proviso is very wide there is no warrant for not
applying it to cases where pre-existing rights are con-
cerned. In the alternative, Mr. Natesan argued that the
Hindu woman’s right to maintenance is not a legal right.
unless an actual charge is created in respect of the
property and is, therefore not enforceable at law. It is,
therefore, not correct to describe a claim of a Hindu fe-
male’s right to. maintenance simpliciter as a pre-existing
right because all the necessary indicia of a legal right are
wanting.
After considering various aspects of the matter we are
inclined to agree with the contentions raised by Mr. Krishna
Murthy Iyer appearing for the appellant. In the: first
place, the appellant’s contention
296
appears to be more in consonance with the spirit and object
of the statute itself. Secondly, we have already pointed
out that the claim of a Hindu female for maintenance is
undoubtedly a pre-existing right and this has been So held
not only by various Courts in India but also by the Judicial
Committee of the Privy Council and by this Court. It seems
to us, and it has been held as discussed above, that the
claim or the right to maintenance possessed by a Hindu
female is really a substitute for a share which she would
have got in the property of her husband. This being the
position, where a Hindu female who. gets a share in her
husband’s property acquires an absolute interest by virtue
of s. 14(1) of the Act, could it be intended by the legisla-
ture that in the same circumstances a Hindu female who could
not get a share but has a right of maintenance would not get
an absolute interest ? In other words, the position would be
that the appellant would suffer because her husband had died
prior to the Act of 1937. If the husband of the appellant
had died after 1937, there could be no, dispute that the
appellant would have got an absolute interest, because she
was entitled to her share under the provisions of the Hindu
Women’s Right to Property Act, 1937. Furthermore, it may be
necessary to study the language in which the Explanation to
s. 14(1) and sub-s. (2) of s. 14 are couched. It would be
seen that while the Explanation to s. 14( 1 ) clearly and
expressly mentions "property acquired by a female Hindu" at
a partition or in lieu of maintenance or arrears of mainte-
nance there is no reference in sub-s. (2) at all to this
particular mode of acquisition by a Hindu female which
clearly indicates that the intention of the Parliament was
to exclude the application of sub-s. (2) to, cases where the
property has been acquired by a Hindu female. either at a
partition or in lieu of maintenance etc. The Explanation is
an inclusive definition and if the Parliament intended that
everything that is mentioned in the Explanation should be
covered by sub-s. (2) it should have expressly so stated in
sub-s. (2). Again the language of sub-s. (2) clearly shows
that it would apply only to such transactions which. are
absolutely independent in nature and which are not in recog-
nition of or in lieu of pre-existing rights. It appears
from the Parliamentary Debates that when the Hindu Succes-
sion Bill, 1954, was referred to a Joint Committee by the
Rajya Sabha, in s. 14(2) which was clause 16(2) of the Draft
Bill of the Joint Committee, the words mentioned were only
gift or will. Thus the intention of the Parliament was to
confine sub-s. (2) only to two transactions, namely a gift
or a will, which clearly would not include property received
by a Hindu female in lieu of maintenance or at a partition.
Subsequently, however, an amendment was proposed by one of
the, members for adding other categories, namely, an instru-
ment, decree, order or award which was accepted by the
Government. This would show that the various terms, viz.,
gift, will, instrument, decree, order or award mentioned in
s. 14(2) would have to. be read ejusdem generis so as refer
to transactions where right is created for the first time in
favour of the Hindu female. The intention of the Parliament
in adding the other categories to sub-s. (2) was merely to
ensure that any transaction under which a Hindu female gets
a new or independent title under any of the modes mentioned
in s. 14(2), namely, gift, will, decree, order, award or m
instrument which prescribes a restricted estate would not be
disturbed and would continue to occupy the field covered by
s. 14(2). This
297
would be the position even ’if a Hindu male was to get the
property by any of the modes mentioned in s. 14(2): he would
also get only a restricted interest and, therefore, the
Parliament thought that there was no warrant for making any
distinction between a male or a female in this regard and
both were, therefore, sought to be equated.
Finally, we cannot overlook the scope and extent of a
proviso. There can be no doubt that sub-s. (2) of s. 14- is.
clearly a proviso to s. 14 (1) and this has been so held by
this Court in Badri Prasad’s case (supra). It is well
settled that a provision in the nature of a proviso merely
carves out an exception to the main provision and cannot be
interpreted in a manner so as to. destroy the effect of the
main provision or to render the same nugatory. If we accept
the argument of the respondent that sub-s. (2 ) to s. 14
would include even a property which has been acquired by a
Hindu female at a partition or in lieu of maintenance then a
substantial part of the Explanation would be completely set
at naught which could never be the intention of the proviso
Thus we are clearly of the opinion that sub-s. (2) of s. 14
of the proviso should be interpreted in such a way so as not
to substantially erode s. 14(1) or the Explanation thereto.
In the present case we feel that the proviso has carved out
completely a separate. field and before it can apply three
conditions must exist:
(i) that the property must have been acquired
by way of gift, will, instrument, decree,
order of the Court or by an award;
(ii) that any of these documents executed in
favour of a Hindu female must prescribe a
restricted estate in such property; and
(iii) that the instrument must create or
confer a new right, title or interest on the
Hindu female and not merely recognise or give
effect to a pre-existing right which the
female Hindu already possessed.
Where any of these documents are executed but no restricted
estate is prescribed, sub-s. (2) will have no application.
Similarly where these instruments do not confer a new title
for the first time on the female Hindu, s. 14(1) would have
no application. It seems to me that s. 14(2) is a salutary
provision which has been incorporated by the Parliament for
historical reasons in order to maintain the link between the
Shastric Hindu Law and the Hindu Law which was sought to
be changed by recent legislation, so that where a female
Hindu became possessed of property not in virtue of any
pre-existing right but otherwise, and the grantor chose to
impose certain conditions on the grantee, the legislature
did not want to interfere with such a transaction by oblit-
erating or setting at naught the conditions imposed.
There was some argument at the bar regarding the use of
the term "’limited owner" in s. 14(1) and "restricted es-
tate" in s. 14(2). Not much, however, turns upon this. I
think that the Parliament advisedly used the expression
"restricted estate" in s. 14(2), because while a limited
interest would indicate only life estate, a restricted
estate is much wider in its import. For instance, suppose a
donor while giving
298
the property to a Hindu female inserts a condition that she
will have to pay Rs. 200/- to donor or to one of his rela-
tives till a particular time, this would not come within the
term "limited interest", but it would be included by the
term "restricted estate". That is the only justification
for the difference in the terminology of s. 14( 1 ) and (2)
of the Act.
Having discussed the various aspects of s. 14(1) and
(2) we shall now deal with the authorities cited before us
by. counsel for the parties which are by no means consist-
ent. We will first deal with the authorities which took the
view that we have taken in this case.In this connection the
sheet-anchor of the argument of the learned counsel for the
appellant is the decision of the Bombay High Court in B.B.
Patil v. Gangabai (1) and that of the counsel for the re-
spondents is the decision of the Madras High Court in Guru-
nadham v. Sundrarajulu(2) and Santhanam v. Subramania(3).
The latter case was affirmed in appeal by the Division Bench
of the Madras High Court in S. Kachapalaya Gurukkal v. V.
Subramania Gurukkal (4) and the aforesaid Division Bench
judgment forms the subjects matter of Civil Appeal No. 135
of 1973 which will be disposed of by us by a separate judg-
ment.
We will now take up the case of the Bombay High Court
relied upon by the learned counsel for the appellant which,
in our opinion, lays down the correct law on the subject.
In B.B. Patil v. Gangabai (supra) the facts briefly were
that the properties in question were the self-acquired
properties of Devgonda and after his death in 1902 Hira Bai
daughter-in-law of Devgonda (widow of his son Appa, who also
died soon thereafter) came into possession of the proper-
ties. Disputes arose between Hira Bai and Nemgonda, the
nephew of Devgonda, and the matter having been referred to
the arbitrator he gave his award on October 16, 1903 and a
decree in terms of the award was passed on October 24, 1903.
Under the decree in terms of the award, 65 acres of land and
one house was allotted to Hira Bai out of which 30 acres
were earmarked for the provision of maintenance and marriage
of the three daughters and the rest of the property was
ordered to be retained by Hira Bai for life with certain
restrictions. After her death these prop.reties were to
revert to Nemgonda. The dispute which was the subject-
matter of the appeal before the High Court was confined to
35 acres of land and the house which was in possession of
Hira Bai. Hira Bai continued to be in possession of these
properties right upto February 25, 1967. Meanwhile Nemgon-
da had died and his sons defendants 2 to 6 claimed the
properties. After the death of Hira Bai, the plaintiffs, who
were two out of the three daughters of Hira Bai, filed a
suit for possession claiming entire title to the properties
in possession of Hira Bai on the ground that Hira Bai was
in possession of the properties as limited owner at the
time of the passing of the Hindu Succession Act, 1956
and
(1) A.I.R. [1972] Bom.16.
(2) I.L.R. [1968] 1 Mad. 567.
(3) I.L.R. [1967] Mad. 68.
(4) A.I.R. [1976] Mad. 279.
299
so her limited estate was enlarged into an absolute estate
and the plaintiffs were, therefore, entitled to succeed to.
her properties in preference to the reversioners. The suit
was contested by defendants 2 to 6 mainly on the ground that
as Hira Bai under the compromise was to retain only a life
interest in the properties, her case would be covered by s.
14(2) of the Act and after her death the properties would
revert to the reversioners. The Court held that as Hira
Bai was put in possession of the properties in lieu of her
maintenance, s. 14 (2) had no application, because the award
merely recognised the pre-existing rights of Hira Bai and
did not seek to confer any fresh rights or source of title
on Hira Bai. Thus even though the award did provide that
Hira Bai would have a limited interest, s. 14(2) would have
no application and Hira Bai will get an absolute interest
after the coming into force of the Hindu Success; on, Act,
1956. The Court observed:
"The explanation, thus, brings under’
its purview all properties traditionally
acquired by a Hindu female on which merely
by reason of the incidents of the Hindu law
she has limited ownership. In other words,
sub-section (1 ) read with this explanation
provides that any property, howsoever acquired
and in possession of a Hindu female after the
commencement of the Act shall be held by her
as a full owner in all cases where she former-
ly held merely limited ownership. As a matter
of fact, this sub-section proceeds on the
basis that there are. several categories of
properties of which a Hindu female, under the
provisions of Hindu Law, is merely a limited
owner. By this enactment her rights! are
enlarged and wherever under the Hindu Law she
would merely obtain limited ownership, she
would, after the commencement of the Act,
obtain full ownership." "There is consensus of
judicial opinion with regard to the ambit of
sub-s. (2) of s. 14 of the Act. It covers
only those cases of grants where the interest
in the grantee is created by the grant itself,
or, in other words, where the gift, will,
instrument, decree, order or award is the
source or origin of the interest created in
the grantee. Where, however. the instruments
referred to above are not the source Of inter-
est created but are merely declaratory or
definitive of the right to property anteced-
ently enjoyed by the Hindu female, sub-section
(2) has no application; and it matters not
if in such instruments it is specifically
provided in express terms that the Hindu
female had a limited estate or’ that the
property would revert on her death to the
next reversioner such terms are merely the
reiteration of the incidents of the Hindu Law
applicable to the limited estate."
Dwelling on the nature and incidents of the right of the
widow’ to maintenance before the Hindu Women’s Right to
Property Act, 1937, Palekar, J., speaking for the Court
described the various
300
characteristics and incidents of the right of a Hindu female
for maintenance (which have already been discussed by us).
Finally, the Judge observed as follows:
"It appears to us that in the context of
the Hindu widows the right to maintenance
conferred under the Hindu Law is distinguisha-
ble in quality from her right to a share in
the family property. That may well be the
reason why the explanation to sub-section (1)
of section 14 of the Act makes the female
allottee of property "in lieu of maintenance"
as much a limited owner as when the widow
acquires "inheritance" or "at a partition".
And if in the latter two cases it is conceded
that sub-section (2) does not apply on the
ground of antecedent right to the family
properties, we do not see any rational justi-
fication to exclude a widow who has an equally
sufficient claim over the family properties
for her maintenance."
Thus the following propositions emerge from a detailed
discussion of this case:
.lm10
(1) that the widow’s claim to maintenance is
undoubtedly a tangible right though not an absolute
right to property so as to become a fresh source of
title. The claim for maintenance can, however, be
made a charge on the joint family properties, and
even if the properties are sold with the notice of
the Said charge, the sold properties will be bur-
dened with the claim for maintenance;
(2) that by virtue of the Hindu Women’s Right to
Property Act, 1937 the claim of the widow to main-
tenance has been crystallized into a full-fledged
right and any property allotted to her in lieu of
maintenance becomes property to which she has a
limited interest which by virtue of the provisions
of Act of 1956 is enlarged into an absolute
title;
(3) Section 14(2) applies only to cases where grant
is not in lieu of maintenance or in recognition of
pre-existing rights but confers a fresh right or
tide for the first time and while conferring the
said title certain restrictions are placed by the
grant or transfer. Where, .however, the grant is
merely in recognition o.r in implementation of a
pre-existing right to claim maintenance, the case.
falls beyond the purview of s. 14(2) and comes
squarely within the explanation to s. 14 (1).
The Court dissented from the contrary view taken by the
Orissa and Madras High Courts on this question. We find
that the facts of this case are on all fours with the
present appeal, and we are in complete agreement with the
view taken and the reasons given by Palekar, J. Once it is
recognised that right of maintenance is a pre-existing
tangi-
301.
ble right, it makes no difference whether a Hindu widow
died before or after the enactment of Hindu Women’s Rights
to Property Act, 1937.
A similar view was taken by an earlier decision of the
Andhra Pradesh High Court in Gadem Reddayya v. Varapula
Venkataraju and Am, C) where the Court held that the family
settlement was only in recognition of the pre-existing right
of the widow to maintenance and, therefore, was not covered
by s. 14(2) of the Act of 1956. In our opinion, this case
correctly states the law on the subject.
In Sumeshwar Mishra v. Swami Nath Tiwari, (2) the High
Court of Patna appears to have taken the same view, and in
our opinion very correctly. The Patna High Court differed
from the decision of the Madras High Court in Thatha
Gurunadhan Chetti v. Smt. Thatha Navaneethamma,(3) and in
our opinion rightly. We are of the opinion, for the reasons
that we have already given above, that the. view of the
Madras High Court was not legally correct. A later deci-
sion of the Patna High Court in Lakshmi Devi v. Shankar
Jha(4) has also taken the same view. We, however, fully
approve of the view expressed by the Patna High Court and
Andhra Pradesh High Court referred to above.
Similarly in H. Venkanagouda v. Hanamangouda(5) the
Mysore High Court adopted the view of the Bombay High Court
in B.B. Patil v. Gangabai (supra) and dissented from the
contrary view taken by the Madras and the Orissa High
Courts. In our opinion, this decision seems to have correct-
ly interpreted the provisions of s. 14(2) of the 1956 Act
and has laid down the correct law. The view of the Madras
High Court and the Orissa High Court which was dissented
fro.m by the Mysore High Court is, in our opinion, legally
erroneous and must be overruled.
In Smt. Sharbati Devi v. Pt. Hira Lal & Anr.(6) the
Punjab High Court clearly held that application of s. 14(2)
was limited to only those cases. where a female Hindu ac-
quired a title for the first time, for otherwise the proper-
ty acquired in lieu of maintenance even though conferring a
limited estate fell clearly within the ambit of explanation
to s. 14(1) of the Act and would, therefore, become the
absolute property of the widow. Thus the Punjab High Court
also fully favours the view taken by the Bombay, Patna,
Mysore, Andhra Pradesh and other High Courts discussed above
and has our full approval. The only distinction in the
Punjab case is that here the widow got the properties after
the coming into force of the Hindu Women’s Rights to Proper-
ty Act, 1937, but that, as we shall point out hereafter,
makes no difference with respect to the legal right which a
widow has to maintain herself out of the family property.
(1) A.I.R. 1965 .A.P. 66.
(2) A.I.R. 1970 Pat. 348.
A.I.R. 1967 Mad. 429.
(4) A.I.R. 1074 Pat. 87.
(5) A.I.R. 1972 Mys. 286.
(6) A.I.R. 1964 Pb. 114.
302
The Calcutta High Court has also taken the same view in
Sasadhai Chandra Dev v. Smt. Tara. Sundari Desi (1) which we
endorse.
In Saraswathi Ammal v. Anantha Shenoi, (2) the Kerala
High Court, after a very detailed discussion and meticulous
analysis of the law on the subject, pointed out that the
right of a widow to maintenance was not a matter of conces-
sion but under the Sastri’s Hindu Law it was an obligation
on the heirs who inherited the properties of the husband to
maintain the widow and any property which the widow got in
lieu of maintenance was not one given purely as a matter of
concession, but the widow acquired a right in such
property. We fully agree with the view taken by the Kerala
High Court in the aforesaid case.
In Kunji Thomman v. Meenakshi(3) although the Kerala High-
court reiterated its facts of that particular case previous
view, on the High Court held that under the family settle-
ment the widow did not get any right to maintenance but was
conferred a new right which was not based on her pre-
existing right and on this ground the High Court felt that
the widow would not get an absolute interest in view of the
explanation to s. 14 (1).
In Chellammal v. Nallammal(4) the facts were almost
similar to the facts of the present case. A single Judge
of the Madras High Court held that. the case was clearly
covered by the Explanation to s. 14(1) of the Act and the
properties given to the widow in lieu of maintenance became
her absolute properties and would not be covered by s. 14(2)
of the Act. This decision appears to have been overruled by
a later decision of the same High Court in S. Kachapalaya
Gurukkal v. V. Subramania. Gurukkal (supra) which is the
subjectmatter of Civil Appeal No. 126 of 1972 and we shall
discuss the Division Bench’s decision when we refer to the
authorities taking a contrary view. We find ourselves in
complete agreement with the view taken by the Single Judge
in Chellammal v. Nellammal (supra). and we overrule the
Division Bench decision in S. Kachapalaya Gurukkal’s case
(supra).
Thus all the decisions discussed above proceed on the
right premises and have correctly.appreciated the nature and
incidents of a Hindu woman’s right to maintenance. They
have also properly understood the import and applicability
of s. 14(2) of the 1956 Act and have laid down correct law
on the subject.
We now deal with the authorities taking a contrary view.
which, in our opinion, does not appear to. be the correct
view.
In Narayan Patra v. Tara Patrani(5) the Orissa High
Court, following a decision of the Andhra Pradesh High Court
in G. Kondiah v.G. Subbarayya(6), held that since the widows
were given only a
(1) A.I.R. 1962 Cal. 438.
(2) A.I.R. 1966 Ker. 66.
(3) I.L.R. 1970 2 Ker. 45.
(4) [1971] M.L.J. 439.
(5) [1970] 35 Cuttak L.T. 667=A.I.R. 1970 Orissa 131.
(6) [1968] 2 Andh. W.R. 455.
303
restricted estate their case squarely fell within the ambit
of s. 14(2) of the Act and their interest would not be
enlarged. Reliance was also placed on a Madras decision in
Thatha Gurunadharn Chetty v. Thatha Navaneethamma (supra).
It is obvious that the conclusions arrived at by the High
Court are not warranted by the express principles of Hindu
Sastric Law. It is true that a widow’s c/aim for mainte-
nance does not ripen into a full-fledged right to property,
but nevertheless it is undoubtedly a right which in certain
cases can amount to a right to property where it is
charged. It cannot be sand that where a property is given
to a widow in lieu of maintenance, it is given to her for
the first time and not in lieu of a pre-existing right
The claim to maintenance, as also the right to claim proper-
ty in order to maintain herself, is an inherent right con-
ferred by the Hindu Law and, therefore, any property given
to her in lieu of maintenance is merely in recognition of
the claim or right which the widow possessed from before.
It cannot be said that such a right has been conferred on
her for the first time by virtue of the document concerned
and before the existence of the document the widow had no
vestige of a claim or fight at all. Once it is established
that the instrument merely recognised the pre-existing
right, the widow would acquire absolute interest. Second-
ly, the Explanation to s. 14(1) merely mentions the various
modes by which a widow can acquire a property and the
property given in lieu of maintenance is one of the modes
mentioned in the Explanation. Sub-section (2) is merely a
proviso to s. 14(1) and it cannot be interpreted in such a
manner as to destroy the very concept of the right conferred
on a Hindu woman under s. 14(1). Sub-section (2) is limit-
ed only to those cases where by virtue of certain grant
or disposition a right is conferred on the widow for
the first time and the said right is restricted by certain
conditions. In other words, even if by a grant or disposi-
tion a property is conferred on a Hindu male under certain
conditions, the same are binding on the male. The effect of
sub-s. (2) is merely to equate male and female in respect of
grant conferring a restricted estate. In these circum-
stances we do not agree with the views expressed by the
Orissa High Court .
The other High Courts which-have taken a contrary view are
mainly the Andhra Pradesh, Allahabad and the Madras High
Courts. In an earlier decision of the Patna High Court
in Shiva Pujan Rat and Others v. Jamuna Missir and
Others(1) the High Court seems to rally round the view
taken by the Madras High Court.
We shall take up the decisions of the Andhra Pradesh
High Court. As already indicated above, the earlier decision
of the Andhra Pradesh High Court in Gadam Reddayya v. Vara-
pula Venkataraju took the same view which was taken later
by the Bombay High Court and held that in a case like the
present, a Hindu female would get an absolute interest and
her case would not be covered by sub-s. (2) of s. 14 of the
1956 Act. In Gopisetti Kondaiah v. Gunda Subbarayudu(2)
another Division Bench of the same High Court appears to
have taken a contrary view. Jaganmohan Reddy, C.J., speak-
ing for the Court observed as follows:
(1) I.L.R. 47 Pat. 1118.
(2) I.L.IR, [1968] A.P. 621.
304
"In so far as the right of a Hindu woman to
maintenance is concerned, it is necessary at
this stage to point out one other basic con-
cept. A Hindu woman has a right to be main-
tained by her husband or from her husband’s
property or Hindu joint family property. But
that is merely a right to receive maintenance
out of the properties without in any way
conferring on her any right, title or interest
therein. It is not a definite right, but is
capable of being made a charge on specific
properties by agreement, decree of Court or
award, compromise or otherwise ........ But
this indefinite right, to be maintained from
out of the properties of a Hindu Joint family,
does not, however, create in her a proprietary
right in the property .......... But if a
restricted estate is given by any such instru-
ment, even if it be in lieu of maintenance,
which is inconsistent with an estate she would
get under the Hindu Law, then sub-section (2)
of section 14 would operate to give her only a
restricted estate.But if it is the latter,
notwithstanding the fact that it was trans-
ferred in lieu of maintenance, if only a
restricted estate was conferred by the instru-
ment, then she would only have the restricted
estate."
While we fully agree with the first part of the observations
made by the learned Chief Justice, as he then was. that one
of the basic concepts of Hindu Law is that a Hindu woman has
right to be maintained by her husband or from her husband’s
property or the joint family property we respectfully disa-
gree with his conclusion that even though this is the legal
position yet the right to receive maintenance does not
confer on her any right, title or interest in the property.
It is true that the claim for maintenance is not an
enforceable right but it is undoubtedly a pre-existing
right, even though no charge is made on the properties
which are liable for her maintenance. We also do not
agree with the view of the learned Chief Justice that if
the property is given to the widow in lieu of maintenance
she will get only a restricted estate. In our opinion, the
High Court of Andhra Pradesh has proceeded on wrong prem-
ises. Instead of acknowledging the right of a Hindu woman to
maintenance as a right to a right--or that matter a pre-
existing right---and then considering the effect of the
subsequent transactions, the High Court has first presumed
that the claim for maintenance is not a tangible right at
all and, therefore, the question of a pre-existing right
does not arise. This, as we have already pointed out, is
against the consistent view taken by a large number of
Courts for a very long period. Furthermore, this case does
not appear to have noticed the previous Division Bench
decision in Gadam Reddayya’s case (supra) taking the
contrary view, and on this ground alone the authority of
this case is considerably weakened. At any rate, since we
are satisfied that the claim of a Hindu woman for mainte-
nance is a pre-existing right, any transaction which is in
recognition or declaration of that right clearly falls
beyond the purview of s. 14(2) of the 1956 Act and, there-
fore, this authority does not lay down the correct law. We,
therefore, do not approve of the view taken in this case
and overrule the same.
305
As regards the Madras High Court, the position appears
to be almost the same. There also, while a single Judge
took the same view as the Bombay High Court and held that s.
14(2) was not applicable, the Division Bench of the Court in
an appeal against the order of another Single Judge took the
contrary view. In S. Kachupalaya Gurukal v. Subramania
Gurukkal (supra) the Court seems to draw an artificial
distinction between a claim of a widow for maintenance and a
pre-existing right possessed by her. According to the High
Court, while a claim for maintenance simpliciter. was not a
right at all, the right to get a share in the husband’s
property under the Hindu Women’s Right to, Property Act,
1937 was a pre-existing right. The Madras High Court ap-
pears to have fallen into an error by misconceiving the
scope and extent of a Hindu woman’s right to maintenance.
Secondly, it appears to have interpreted the proviso in such
a manner as to destroy the effect of the main provision,
namely, s. 14(1) and the explanation thereto, for which
there can be no warrant in law. The decision of Natesan, J,
in Gurunadham v. Sundrarajulu Chetty (supra) which had been
affirmed by this judgment also, appears to have taken the
same view and had fallen into the same error. Furthermore,
the view of the learned Judge that on the interpretation
given and the view taken by the Bombay High Court which we
have accepted, s. 14 is intended to override lawful terms in
contracts, bargains, bequests or gifts etc. is not correct,
because the scope and area of sub-s. (2) of s. 14 is quite
separate and defined. Such a sub-section applies only to
such transactions as confer new right, title. or interest on
the Hindu females. In such cases the titles created under
sub-s. (2) are left in tact and s. 14(1) does not interfere
with the titles so created under those instruments.
Thus, in short, these two, decisions suffer from the
following legal infirmities: (i) the Madras High Court has
not correctly or properly appreciated the nature and extent
of the widow’s right to. maintenance: and (ii) the distinc-
tion drawn by the Court regarding the share given to the
widow under the Hindu Women’s Right to. Property Act allot-
ted to her before the passing of the Act in lieu of mainte-
nance is based on artificial grounds. In fact the Act of
1937 did not legislate anything new, but merely gave statu-
tory recognition to the old Shastric Hindu Law by consoli-
dating the same and clarifying the right of the widow which
she already possessed in matter of succession under the,
Hindu Law. This being the position, the Act of 1937 makes
no difference. so far as the legal status of a widow in
regard to her right to maintenance was concerned. The Act
neither took away the: right of maintenance nor conferred
the same; (iii) the Court appears to, have given an extended
meaning to sub-s. (2) of s. 14 of the 1956 Act which has
been undoubtedly enlarged so as to set at naught the express
words in the Explanation to sub-s. (1) of s. 14 which ex-
pressly exclude the. property given to a widow in lieu of
maintenance or at a partition from the ambit of sub-s. (1).
In other words, such a property, according to the Explana-
tion, is a property in which the widow would have undoubted-
ly a limited interest which by operation of law i.e. force
of s. 14(1 ) would be enlarged into an absolute interest if
the widow is in possession of the property on the date when
the Act was passed; (iv) similarly the Court failed to
notice that
5--436 SCI/77
306
sub-s. (2) of s. 14 would apply only where a new right is
created for the first time by virtue of a gift, will etc. or
the like executed in favour of the widow in respect of which
she had no prior interest in the property at all. For
instance, a daughter is given a limited interest in presence
of the widow. Here the daughter not being an heir in
presence of the widow (before the Hindu Succession Act came
into force) she had, no fight or share in the property, and
if she was allotted some property under any instrument, a
new and fresh right was created in her favour for the first
time which she never possessed. Such a case would be square-
ly covered by s. 14(2) of the Act.
In Ram Jag Misir v. The Director of Consolidation,
U.P.(1) the same view has. been taken as the Madras High
Court. This. case does not discuss the various aspects
which have been pointed out by us and proceeds purely on the
basis that as the widow acquired a restricted estate under
the compromise., s. 14(2) would at once apply. It has not at
all considered the decisions of this Court that a mere
description of limited interest in a grant or compromise is
not a restriction but may just as well as merely a statement
of the law as it stood when the grant was made. The Court
has also, not considered the various incidents and charac-
teristics of the widow’s right to maintenance under the
Hindu Law.
Reliance was also placed by the learned counsel for the
responderts on a Division Bench decision of the Patna High
Court in Shiv Pujan Rai v. Yamuna Missir (supra) where the
High Court held that the property given to a widow under a
compromise in lieu of her maintenance was covered by sub-s.
(2) of s. 14. This decision was. really based on the pecul-
iar findings of fact arrived at by the Courts of fact. The
High Court in the first place held that on the facts
there was nothing to show that the widow acquired any inter-
est independent of the compromise under which she was given
the property. In these circumstances, it may be that the
widow was given a. fresh or a new title under the compromise
in which case the matter would be clearly covered by s.
14(2) of the 1956 Act. Even if this case be treated as an
authority for the proposition that any property allotted to.
a widow under a compromise in lieu of maintenance would be
covered by s. 14(2) of the Act, then we dissent from this
view, and for the reasons which we have already given we
choose to prefer the view taken by the Patna High Court in a
later case in Sumeshwar Mishra v. Swami Nath Tiwari (supra),
which lays down the correct law on the subject.
Reliance was also placed on a Full Bench decision of the
Jammu & Kashmir High Court in Ajab Singh & Ors. v. Ram Singh
and other.(2) In this case also the various aspects
which we have indicated and the nature and extent of the
Hindu women’s right to maintenance were not considered at
all and the Court proceeded by giving an extended meaning
to the provisions of sub-s. (2) of s. 14 which in that case
was sub-s. (2) of s. 12 of the Jammu & Kashmir Hindu Succes-
sion Act, 1956. It is true that the leading Judgment was
given by one of us (Fazal Ali, J.,) but I must confess that
the important question of law that has been argued before us
in all its comprehensive aspects was not presented before me
in that case and even the counsel
O) A.I.R. 1975 All. 151.
(2) A.I.R. 1959 J & K 92.
307
for the respondents did not seriously contend that sub-s.
(2) of s. 14 was not applicable. For these reasons we are
not in a position to approve of the Full Bench decision of
the Jammu & Kashmir High Court in Ajab Singh’s case which.
is hereby overruled.
Thus on a careful scrutiny and analysis of the authori-
ties discussed above, the position seems to be that the view
taken by the High Courts of Bombay, Andhra Pradesh, Patna,
Mysore, Punjab, Calcutta .and Kerala to the effect that the
widow’s claim to maintenance, even though granted to her
subject to certain restrictions, is covered by s.14 (1) and
not by sub-s. (2) is based on the following premises:
(1) That the right of a Hindu widow to claim maintenance
is undoubtedly a right against property though not a right
to property. Such a right can mature into a full-fledged one
if it is charged on the property either by an agreement or
by a decree. Even otherwise, where a family possesses
property, the husband, or in case of his. death, his heirs
are burdened with the obligation to maintain the widow
and, therefore, the widow’s claim for maintenance is not an
empty formality but a pre-existing right.
(2) Section 14(2) which is in the nature of a proviso to
s. 14(1) cannot be interpreted in a way so as to destroy the
concept and defeat the purpose which; is sought to, be
effectuated by s. 14(1) in conferring an absolute interest
on the Hindu women and in doing away with what was here-
tobefore known as the Hindu women’s estate. The proviso will
apply only to such cases which flow beyond the purview of
the Explanation to s. 14(1).
(3) That the proviso would not apply to any grant or
transfer in favour of the widow hedged in by limitation or
restrictions, where the grant is merely in recognition or
declaration of a pre-existing right, it will apply only to
such a case where a new right which the female .did not
possess at all is sought to be conferred on her under cer-
tain limitations or exceptions. In fact in such a case even
if a conditional grant is made to a male, he would be bound
by the condition imposed. The proviso wipes out the distinc-
tion between a male and a female in this respect.
The contrary view taken by the Madras, Orissa, Andhra
Pradesh, Allahabad and Jammu & Kashmir High Courts proceeds
on the following grounds:
(1) That a widow’s claim to maintenance is merely an
inchoate or incomplete right having no legal status, unless
the widow gets a property in lieu of maintenance or unless a
charge is created in a particular property the claim for
maintenance cannot be legally enforced. Thus, where under a
grant, compromise, transfer or a decree, a property is
allotted to the widow in lieu of maintenance, it is not the
recognition of any pre-existing right but it amounts to
conferment of a new right for the first time which in fact
did not exist before the said demise. This view is really
based on the provisions of the Hindu Women’s Right to
Property Act, 1937, under which the widow has got the right
to get a share of his son in lieu of partition and even
308
otherwise she is entitled to her share in the joint Hindu
family property on partition. These High Courts, therefore,
seem to be of the opinion that in view of the provisions of
the Hindu Women’s Right to Property Act, the widow in claim-
ing a share in the property has a pre-existing right which
is recognised by law, namely, the Act of 1937. The same,
however, cannot be said of a bare claim to maintenance which
has not been recognised as a legal right and which can
mature into a legally enforceable right only under a grant
or demise. This view suffers from a serious fallacy, which
is, based on a misconception of the true position of a Hindu
widow’s claim for maintenance. It has been seen from. the
discussion regarding the widow’s claim for maintenance and
her status in family that under the pure Sastric Hindu Law
the widow is almost a co-owner of the properties with her
husband and even before the Act of 1937 she was entitled to
the share of a son on the death of her husband after parti-
tion according to some schools of Hindu Law. The Act of
1937 did not introduce any new right but merely gave a
statutory recognition to the old Sastric Hindu Law on the
subject. In this respect the Act of 1937 is very different
from the Act of 1956, the latter of which has made. a revo-
lutionary change in the Hindu Law and has changed the entire
complexion and concept of Hindu women’s estate. In these
circumstances, therefore, if the widow’s claim for mainte-
nance or right to get the share of a son existed before the
Act of 1937, it is futile to dub this! right as flowing from
the Act of 1937. The second fallacy in this view is that
the Court failed to consider that the. claim for maintenance
is an important right which is granted to the widow under
the Sastric Hindu Law which enjoins the husband to maintain
his wife even if he has no, property. Where he has a
property the widow has to be maintained from that property
so much so that after the death of her husband any one who
inherits that property takes the property subject to. the
burden of maintaining the widow. Even where the property is
transferred for payment of family debts and the transferee
has the notice of the widow’s claim for maintenance, he has
to discharge the burden of maintaining the widow from the
property sold to him. Thus the nature and extent of the
right of the widow to claim maintenance is undoubtedly a
pre-existing right and it is wrong to say that such a right
comes into existence only if the property is allotted to the
widow in lieu of maintenance and not otherwise.
Another reasoning given by the courts taking the con-
trary view is that sub-s. (2) being in the nature of a
proviso to s. 14(1) all grants with conditions take the case
out of s. 14(1). This, as we have already pointed out, is
based on a wrong interpretation of the scope: and ’ambit of
sub-s. (2) of s. 14.
Lastly, the contrary view is in direct conflict with the
observations made by this Court in the cases referred to
above, where a grant in lieu of maintenance. of the widow
has been interpreted as being in recognition of a pre-exist-
ing right’ so. as to take away the case from the ambit of
sub-s. (2).
For these reasons and those given hereto. before we
choose to prefer the view taken by Palekar, J., in B-B.
Patil v. Gangabai (supra) which appears to be more in conso-
nance with the object and spirit of
309
the 1956 Act. We, therefore, affirm and approve of the
decisions of the Bombay High Court in B.B. Patil v. Ganga-
bai; of the Andhra Pradesh High Court m Gadam Reddayya v.
Varapula Venkataraju & Anr.;of the Mysore High Court in H.
Venkanagouda v. Hanamanagouda; of the Patna High Court in
Sumeshwar Mishra v. Swami Nath Tiwari; of the Punjab High
Court in Smt. Sharbati Devi v. Pt. Hira Lal & Anr and Cal-
cutta High Court in Sasadhar Chandra Dev v. Smt. Tara Sund-
ari Dasi (supra) and disapprove the decisions of the Orissa
High Court in Narayan Patra v. Tara Patrani; Andhra Pradesh
High Court in Gopisetty Kondaiah v. Gunda Subbarayudu
(supra); Madras High Court in S. Kachapalaya Gurukkal v. V.
Subramania Gurukkal (supra) and Gurunadham v. Sundararaulu;
of the Allahabad High. Court in Ram Jag Missir v. Director
of Consolidation, U.P. and in Ajab Singh & Ors. v. Ram Singh
& Ors. of the Jammu & Kashmir High Court.
Lastly strong reliance was placed by Mr. Natesan counsel
for the respondents on a decision of this Court in Smt.
Naraini Devi v. Smt. Ramo Devi & others(1) to which one of
us (Fazal Ali, J.,) was a party. This case is no doubt
directly in point and this Court by holding that where under
an award an interest is created in favour of a widow that
she should be entitled to rent out the property for her
lifetime, it was held by this Court that this amounted to a
restricted estate under s. 14(2) of the 1956 Act. Unfortu-
nately the various aspects, namely, the nature and extent
of the Hindu women’s right to maintenance, the limited scope
of sub-s. (2) which is a proviso. to. sub-s. (1 ) of s. 14
and the effect of the Explanation etc., to which we have
adverted in this judgment, were. neither brought to our
notice nor were argued before us in that case. Secondly,
the ground on which this Court distinguished the earlier
decision of this Court in Badri Parshad v. Smt. Kanso Devi
(supra) was that in the aforesaid decision the Hindu widow
had a share or interest in the house of her husband under
the! Hindu Law as it was applicable then, and,
therefore,such a share amounted to a pre-existing right.
The attention of this Court, however, was not drawn: to the
language of the Explanation to s. 14(1) where a property
given to a widow at a partition or in lieu of maintenance
had been placed in the same category, and, therefore reason
given by this Court does not appear to be sound. For the
reasons that we have. already given, after taking an overall
view of the situation, we are satisfied that the Division
Bench decision of this Court in Naraini Devi’s case (supra)
was not correctly decided and is therefore, overruled.
Indeed, if the contrary view is accepted, it will, in my
opinion set at naught the legislative process of a part of
Hindu Law’ of the intestate succession and curb the social
urges and aspirations of the Hindu women, particularly in
the International Year of Women, by reviving a highly
detestable legacy which was sought to be buried by the
Parliament after independence so. that the new legislation
may march with the times.
We would now 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
(1) 1976] 1 s.c.c. 574.
310
interpretation of s. 14(1) and (2) of the Act of 1956. These
conclusions may be stated thus:
(1) 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 may not 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 females so as to advance the
object of the 1956 Act and promote the socio-economic ends,
sought to be achieved by this long needed legislation.
(3) Sub-section (2) of s. 14 is in the nature of a
proviso and has a field of its own without interfering with
the operation of s. 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 s. 14(1) or
in a way so as to become totally inconsistent with the main
provision.
(4) Sub-section (2) of s. 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 preexisting
rights. In such cases a restricted estate in favour of a
female is legally permissible and s. 14(1) will not operate
in this sphere. Where, however, an instrument merely de-
clares 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 en-
larged into. an absolute one by force of s. 14(1) and the
restrictions placed, if any, under the document would have
to be ignored. Thus where a property is allotted or trans-
ferred to a female in lieu of maintenance or a share at
partition, the instrument is taken out of the ambit of sub-
s. (2) and would be governed by s. 14(1) despite any re-
strictions 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 s.
14(1) clearly makes sub-s. (2) inapplicable to these catego-
ries which have been expressly excepted from the operation
of sub-s. (2).
311
(6) The words "possessed by" used by the Legislature in
s. 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 s. 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 with-
out any right or title.
(7) That the words "restricted estate" used in s. 4(2)
are wider than limited interest as indicated in s. 14(1) and
they include not only limited interest, but also. any other
kind of limitation that may be placed on the transferee.
Applying the principles enunciated above to the facts of
the present case, we find--
(i) that the properties in suit were allotted to the
appellant Tulasumma on July 30, 1949 under a compromise
certified by the. Court;
(ii) that the appellant had taken only a life interest
in the properties and there was a clear restriction prohib-
iting her from alienating the properties;
(iii) that despite these restrictions, she continued to
be in possession of the properties till 1956 when the Act of
1956 came into. force; and
(iv) that the alienations which she had made in 1960 and
1961 were after she had acquired an absolute interest in the
properties.
It is, therefore, clear that the compromise by which the
properties were allotted to the appellant Tulasamma in lieu
of her maintenance were merely in recognition of her right
to maintenance which was a pre-existing right and, there-
fore, the case of the appellant would be taken out of the
ambit of s. 14(2) and would fail squarely within s. 14 (1)
read with the Explanation thereto. Thus the appellant would
acquire an absolute interest when she was in possession of
the properties at the time when the 1956. Act came into
force and any restrictions placed under the compromise would
have to be completely ignored. This being the position, the
High Court was in error in holding that the appellant Tula-
samma would have only a limited interest in setting aside
the alienations made by her. We are satisfied that the High
Court decreed the suit of the plaintiffs on an erroneous
view of the law.
The result is that the appeal is allowed, the judgment
and decree of the High Court are set aside, the judgment of
the District Judge, Nellore. is hereby restored and the
plaintiffs’ suit is dismissed. In the peculiar circumstances
of this ease and having regard to the, serious divergence of
judicial opinion of the various Courts of India, we would
make no order as to costs in this Court.
P.B.R. Appeal allowed.
312