Jamuna Devi and Others vs Chet Singh and Others

K. Kannan, J.—The revision is against the order upholding the claim of one of the sons staking his entitlement to the amount awarded by a

reference court in a land acquisition case. The property belonged to one Gurcharan Singh and the property had been acquired and compensation

assessed in the year 2007. The property, during the life of Gurcharan Singh, had been made the subject of bequest to his wife and two sons,

wherein he has stated that the property shall be enjoyed by the wife for life out of the income from the agricultural land and after her life time the

property shall be enjoyed by the two sons. With reference to his cash, which had been deposited in any bank or post office, he had directed that

the said cash will go to his wife absolutely. The Will also contains a clause that his daughter and other children will not have any connection with his

property and it was obligatory on the sons that they will look after his mentally retarded daughter Kamaljeet Kaur. It appears that mentally

retarded Kamaljit Kaur died on 11.8.2003. In this case, the point that arose for consideration was, whether the wife was entitled to make a

bequest in respect of the property which she had been given as life interest by her husband. The court held that the property given to her was in

recognition of a preexisting right to be maintained and consequently the property given to her under the Will enlarged as mil estate u/s 14(1) of the

Hindu Succession Act. The wife had bequeathed the whole of the property which was acquired, in favour of one of her sons and the objection

raised for a claim by the other son for a equal share in the amount determined in compensation was thwarted by the contention that the whole of

the money would belong only to the son who has obtained bequest from the mother.

The trial court has accepted the contention and held that the Will which restricted her interest must be read as constituting absolute interest in the

property. I find the order of the court below to be wholly erroneous and based on a wrong understanding of the Hindu Succession Act, particularly

reference to Sections 14(1) and 14(2) of the Act. Every property which was made subject of a bequest by Gurcharan Singh is described to be his

own absolute property. The Will begins with the statement"" I am the owner of the property and I own and possess agricultural land and other

immovable property at Roopnagar."" In respect of the property owned by him, he was competent to bequeath by means of a Will in terms of the

Indian Succession Act and the power under the Hindu Succession Act as well. The property which a woman takes after the Hindu Succession

Act, will be governed by a manner of deposition which the particular instrument describes. Section 14(2) is in the nature of exception to Section

14(1) and if any property is acquired by a female by a gift or a Will or any other instrument, then the right will be restricted by such an instrument

u/s 14(2) and Section 14(1) will not operate. A Will that restricts a woman''s interest cannot enlarge as an absolute bequest by virtue of Section

14(1), unless she already had a pre-existing interest in the property during the life time of her husband and such interest was being passed by

reference to the Will. If the property belongs to Gurcharan Singh absolutely, it cannot be said that his wife had a pre-existing interest in the

property.

Learned counsel for the respondents urges that this is an ancestral property/joint family property and, therefore, a widow had a share equal to

that of her son. A property obtained by a son after the Hindu Succession Act u/s 8 is the absolute property of the son. If only such a son had died

intestate his widow could take a share equal to his son. What shall be the effect of restriction of interest through a Will executed subsequent to the

commencement of the Hindu Succession Act was considered by the judgment of the Supreme Court in Sad it Sadhu Singh Vs. Gurdwara Sahib

Narike and Others, . The Court carved out an exception to Section 14(1) that if a male Hindu makes a Will in respect of his separate property and

provided a life estate to his wife, it was neither illegal nor hit by any prohibition under Hindu Succession Act. There was nothing in the Act which

affected the right of a male Hindu to depose of his property by providing only life estate or a limited estate to his widow. The Supreme Court held

that the Act did not stand in the way of his separate property being dealt with by a male as he deemed fit. An interpretation which the counsel

appearing for the respondent No. 1 makes now that a property obtained by a woman after 1956 Act cannot be restricted at all was rejected by

the Supreme Court and the said decision would squarely apply to the facts of the case. The finding of the court below that the widow had a right to

executed a Will in respect of the property obtained by her through Will restricting her interest was clearly wrong.

Learned counsel appearing for the respondent has a further contention to make that the Will makes an absolute interest in respect of cash and

since the property acquired by the government had been converted as cash, the amount must be understood as belonging to the mother. The

contention has to be tested on what was the nature of vesting in relation to the property mentioned in the Will. If the contention of the counsel

appearing on behalf of the respondent was that Gurcharan Singh allowed for a bequest of the cash in favour of his wife, the examination shall be

what cash passed under the Will. It could be only what existed at the time of the death. The amount of cash in any bank or post office at the time

when Gurcharan Singh''s was alive, passed absolutely to his wife. If the property which he had bequeathed was not in the shape of cash but was an

immovable property, by the only reason that it got converted in terms of cash after his death it cannot become a subject of bequest in favour of his

wife. The sons'' interest in the immovable property was a vested right and that right cannot be lost by a conversion of the land into cash. We have

already seen that in relation to the immovable property, father had given life interest to his wife and vested remainder to his sons. The right which

the sons had obtained could neither have been a subject of bequest by the wife nor could it had been a case of divesting taking place against the

sons and a fresh vesting in favour of the widow after the property was converted in cash. A divestiture was not contemplated by the executant of

the Will in relation to the immovable property in the event of any conversion of immovable property into cash. Consequently, even the second limb

of argument made by the counsel cannot obtain approval from this court.

The order passed by the court below was erroneous and it is set aside. The amount available in court deposited by way of compensation for

land acquisition shall be taken as falling in equal shares to his two sons and the claim by only of them as having become the owner of the acquired

property by virtue of the Will is rejected.

At this stage, I am informed that the amount has already been taken by the respondent No. 1. The petitioners are entitled to be restituted of the

said sum and the petitioners are entitled to work out the same in accordance with law. The Civil Revision is allowed on the above terms.