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Judgment
V. Periya Karuppiah
This appeal has been filed by the appellant against the judgment and decree passed by the first appellate Court in A.S. No. 15 of 2003 dated
06.03.2003 confirming the judgment and decree passed by the trial Court in O.S. No. 60 of 1994 dated 16.04.2001 in dismissing the declaratory
relief.
The case of the plaintiff before the trial court would be as follows: The plaintiff is the lawfully wedded wife of one Kesava Nainar. The suit
properties were belonging to Kesava Nainar as he acquired from his individual income. The said Kesava Nainar was living separately and
therefore, he had executed a settlement deed in favour of the plaintiff in respect of the suit properties on 22.08.1966 and thereby, the suit
properties were given possession to the plaintiff. The said settlement deed was executed by the said Kesava Nainar in favour of the plaintiff in lieu
of her maintenance. The plaintiff was in possession and enjoyment of the suit properties from the said date onwards and patta was given in the
name of the plaintiff. She has also paid the kist payable to the suit properties. The plaintiff is also entitled to suit properties absolutely through
intestate succession to the suit properties. The defendants, who are having no right in the suit properties, had come forward to disturb the
possession and enjoyment of the suit properties. The said Kesava Nainar died intestate on 03.01.1994 leaving the plaintiff as his only heir. Since
there was a dispute in between the plaintiff and the defendants regarding the suit properties, the defendants have fabricated a Will as if Kesava
Nainar had executed a Will. In view of the hostile attitude of the defendants, the plaintiff has come forward with the suit for declaration of her title
to the suit properties and for permanent injunction against the defendants.
The contentions of the defendants raised in the written statement filed by the first defendant, which was adopted by the second defendant are as
follows:
The averments that the suit properties were originally belonged to Kesava Nainar and he was in possession and enjoyment of the suit properties,
that the plaintiff is the wife of the said Kesava Nainar, that the suit properties were settled with the plaintiff on 22.08.1966 through a settlement
deed and in pursuance of the settlement deed, the plaintiff is in possession and enjoyment of the suit properties and that the said Kesava Nainar
died on 03.01.1994 are true. But the averment that the said Kesava Nainar died intestate on 03.01.1994 is not correct. The said Kesava Nainar
had executed a Will in favour of the defendants in respect of the suit properties. The averment that the defendants have created a forged Will, as if
the said Kesava Nainar had executed the same in favour of the defendants is not true. The plaintiff had quarrelled with Kesava Nainar and
therefore, Kesava Nainar did not like to live with the plaintiff and therefore, he had stayed with his sister Alamelu Ammal and her husband
Saminatha Nainar, after executing the settlement deed in favour of the plaintiff for her lifetime. The defendants have maintained the deceased
Kesava Nainar till his lifetime. The said Kesava Nainar was taking treatment in Tambaram - Sanatorium and since the plaintiff has not maintained
the said Kesava Nainar, he had executed a Will on 25.12.1993 in the presence of witnesses in respect of the suit properties and other properties
in favour of the second defendant. The said Will was executed by Kesava Nainar in the presence of witnesses, who attested the signature of
Kesava Nainar signed by him in their presence. The said Will was the first and the last Will of Kesava Nainar, who died on 03.01.1994. As per
the terms of the Will, the second defendant was entitled to enjoy the properties belonging to Kesava Nainar including the suit properties, which
were settled in favour of the plaintiff till her lifetime. The defendants are not disputing the right of the plaintiff to enjoy the suit properties till her
lifetime. Therefore, the cause of action for the suit is not sustainable and therefore, the suit has to be dismissed.
The trial Court has framed necessary issues on the pleadings of both parties and entered the trial. After appraising the evidence of plaintiff and
defendants and the documents produced on either side, the trial Court had come to the conclusion that the plaintiff is not entitled for any
declaration as sought for, but granted permanent injunction against the defendants regarding the possession and enjoyment of the suit properties
held by the plaintiff.
Aggrieved against the judgment and decree passed by the trial Court, the plaintiff preferred an appeal before the Additional District and
Sessions Judge, Fast Track Court No. II, Tindivanam in A.S. No. 15 of 2003. The learned first appellate Judge heard the arguments of both sides
and had come to the conclusion of confirming the judgment and decree passed by the trial Court and dismissed the appeal without costs.
The aggrieved plaintiff has preferred the present appeal against the judgment and decree of the first appellate court, which confirmed the
judgment and decree of the trial court.
On admission, this Court had framed the following questions of law for consideration in this appeal:-
a). Whether the Courts below are legally right in not applying Section 14(1) of the Hindu Succession Act, 1956, even after not finding that the
property was given in lien of maintenance.
b). Whether the trial Court is legally right in holding that a Will executed later by the Settlor who has settled property for maintenance, would
cancel the settlement, without considering the scope of Section 14(1) of Hindu Succession Act.
Considering the judgments of both the courts below, it has become necessary for this Court to frame additional question of law, which would be
as follows:
1). Whether the unprobated Will said to have been executed by Kesava Nainar on 25.12.1993 is admissible in Court of Law and would give any
right to the legatees under the said Will.
Heard Mr.Akilesh, learned counsel appearing on behalf of M/s.N.Maninarayanan, learned counsel for the appellant. No appearance for the
respondents, despite their names have been printed in the cause list.
The learned counsel for the appellant / plaintiff would submit in his arguments that both the courts below have gravely failed in upholding the
law framed by the legislature u/s 14(1) of the Hindu Succession Act, in which the limited right granted to a Hindu women would enlarge to absolute
estate, when it was given in lieu of her maintenance. He would further submit that the properties were given by her husband Kesava Nainar in
favour of the plaintiff through a settlement deed dated 22.08.1966 in lieu of her maintenance only. He would further submit that the said factum of
execution of settlement deed dated 22.08.1966 in Ex. A1 is an admitted one and therefore, such a restricted right given to the plaintiff by her
husband through a settlement deed Ex. A1 would enlarge into an absolute estate u/s 14(1) of the Hindu Succession Act on the death of her
husband. He would further submit in his argument that the defendants, who are strangers to the family, had created the Will as if the plaintiff''s
husband Kesava Nainar had executed the Will in the presence of the attestors disposing the suit properties and other properties belonging to him in
their favour excluding the plaintiff, his wife for no valid reason. He would further submit that the said Will dated 03.01.1994 was an unregistered
one and that too was executed within the original jurisdiction of Madras High Court and therefore, it ought to have been probated before it is
produced before the Court of Law. He would further submit that the said document produced before the trial Court in Ex. B3 has no evidentiary
value, since it was not probated by the legatees or the executor. He would further submit that the provisions of Section 213 of the Indian
Succession Act would clearly show that such an unprobated Will cannot be used to exercise any right over such Will when they are attracted
under Sections 57 and 213 of the said Act. He would also cite a judgment of this Court reported in 2011 - 1 - TLNJ 614 (Civil) (G. Ganesan and
others vs. P. Sundari and others) for the principle that the marking of an unprobated Will, even for collateral purpose cannot succeed. He would
also submit that the plea of deriving a right, title from an unprobated Will is also barred before any court of law. He would further submit that the
Will produced by the defendants in Ex. B3 cannot confer any title to the property even though the attestors have been examined and the Will was
stated to have been proved. He would further submit that the courts below have not considered and satisfied with the exclusion of the legal heir
from inheriting the property when strangers are shown as legatees. The non-registration of the Will and the exclusion of the legal heir and the
circumstance that the Will was said to have been executed within a period of 10 days prior to the death of the deceased person would create
suspicious circumstances and the reliance placed by the courts below on the said Will are not legally sustainable in law. He would also submit that
when the unregistered and unprobated Will Ex. B3 was not relied, the plaintiff would be the owner of the suit properties through intestate
succession of her husband''s property and therefore, the declaratory decree ought to have been granted to the plaintiff. He would also submit that
even the will produced in Ex. B3 is admissible and even true, the suit property which became the absolute property of the plaintiff as per the
provisions of Section 14(1) and (2) of the Hindu Succession Act cannot be bequethed by the husband of the plaintiff. When the right of the plaintiff
has been statutorily enlarged into an absolute estate, the defendants cannot invoke the bequest made in Ex. B3 to claim right over the suit
properties against the title and interest of the plaintiff. He would, therefore, request the Court that the judgment and decree passed by the first
appellate Court in confirming the judgment and decree of the trial Court in refusing to grant declaratory decree regarding the suit properties may be
set aside and the appeal be allowed and thus, the suit filed before the trial court be decreed in full as prayed for.
I have also perused the records and other papers relating to the appeal. I have also given anxious consideration to the arguments advanced by
the learned counsel for the appellant.
The trial Court had come to the conclusion of accepting the settlement deed dated 22.08.1966 in Ex. A1 and had found that the plaintiff was
entitled to the suit properties for her lifetime and therefore, permanent injunction against the defendants was granted and the suit for declaration of
the plaintiff''s title to the suit properties was dismissed. The trial Court had also come to the conclusion that the Will executed by the husband of the
plaintiff, namely, Kesava Nainar on 25.12.1993 in the presence of the attestors and it was a true and genuine document. While discussing about
the non probation of the Will, the trial Court had come to the conclusion that the said Court cannot go into the question of validity of the Will and it
can decide the right of parties. However, it had come to the conclusion that the plaintiff was entitled to life interest in the suit properties.
No doubt the plaintiff is the widow of Kesava Nainar and she is the sole legal representative to inherit the properties belonging to the Kesava
Nainar in the event, he died intestate. Further the trial court has come to the conclusion that the said Kesava Nainar executed a Will on
25.12.1993 in favour of the defendants. If the said Will was found to be not sustainable, the plaintiff would be the absolute owner of not only the
suit properties, but also the other properties left by Kesava Nainar. Therefore, the conclusion reached by the trial court was confirmed by the first
appellate court and thereby the plaintiff was found entitled to only life estate, even though the Will has not been considered as true document.
It is the argument of the learned counsel for the appellant that the Will Ex. B3 itself is not admissible in evidence, since it was an unregistered
and unprobated one. No doubt, the plaintiff - the legal heir of the testator was excluded in the said Will Ex. B3 and it has been executed within 10
days prior to the death of the said Kesava Nainar. No doubt, the said circumstance will make the Will suspicious and it is the testamentary court,
which can go into the question to decide about the truth, genuineness and validity of the Will, if filed for grant of probate.
It is also submitted by the learned counsel for the appellant that the judgment of this Court reported in 2011 - 1 - TLNJ 614 (Civil) (G.
Ganesan and others.vs. P. Sundari and others), which would run as follows:-
18..... This according to the learned counsel for the respondents is a collateral purpose. But, we find it too difficult to accept the said contention.
The said Will of the year 1993 is sought to be used to defeat the claim of the appellants to get letters of administration on the earlier Will. Unless,
the due execution and contents of the said Will by which the earlier Will is stated to have been cancelled are proved, the respondents cannot
succeed in their plea to defeat the claim of the appellants for letters of administration. The contents of the said Will of the year 1993 can be proved
only in an appropriate probate proceeding. Unless the said Will of the year 1993 is proved that it is the last Will of the deceased and it satisfies all
the other legal requirements, the earlier Will for which letters of administration proceeding has been initiated cannot be negatived. Proof of the same
cannot be made in the present suit because the same could be done if only the respondents approach the Court for probating the said Will either
by making a counter claim or by initiating separate proceedings. For the respondents, the right to oppose the issuance of probate in respect of the
earlier Will itself is derived only from the unprobated subsequent Will. As held by the Full Bench of this Court in Ganshamdoss Narayandoss Vs.
Gulab Bi Bai, , the bar contained in Section 213 of the Indian Succession Act is applicable even to a defendant in a suit. Therefore, we are of the
firm view that the purpose for which the Will of the year 1993 is sought to be proved by the respondents in evidence is only for the main purpose
to establish that the said Will is the last Will which cancels the earlier Will and the said purpose is not merely collateral as it is sought to be made
out by the respondents. Apart from that, in Commissioner, Jalandhar Division and Others Vs. Mohan Krishan Abrol and Another, the Hon''ble
Supreme Court has held that even for such collateral purposes, the unprobated Will cannot be used in a probate Proceedings.
In the said judgment, it has been categorically laid down that the admissibility of unprobated Will, which is required to be probated under
Sections 213 and 57 of the Indian Succession Act, if not probated. Admittedly, the Will in Ex. B3 has not been probated and the trial Court had
come to the conclusion that the Will need not be gone into for deciding the right of the plaintiff and therefore, it had not decided the right flowing on
the Will. Section 213 of the Indian Succession Act would run as follows:-
Right as executor or legatee when established:-
(1). No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted
probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of
the Will annexed.
(2). This Section shall not apply in the case of Wills made by Muhammadans or Indian Christians, and shall only apply -
(i). in the case of Wills made by any Hindu, Buddhist, Sikh or Jain where such Wills are of the classes specified in clauses (a) and (b) of Section
57; and
(ii). in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where
such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay and where
such Wills are made outside those limits, insofar as they relate to immovable property situated within those limits.
As per Section 213(2)(ii) of the Act, it is clear that the Wills executed within the original jurisdiction of Madras High Court are compulsorily
probated. Admittedly, the Will dated 25.12.1993 in Ex. B3 is not a probated Will. In the said circumstances, the evidence adduced by the
attestors and the marking given by the trial Court as Ex. B3 in evidence is not at all sustainable in view of the judgment of this Court. As far as the
present case is concerned, the lower courts ought to have considered that the Will is not genuine or valid and on that basis to decide the dispute on
merits. Admittedly, the plaintiff is entitled to life interest in the suit properties as per the settlement deed Ex. A1. In view of the fact that the
impugned Will Ex. B3 dated 25.12.1993 is not an admissible document and cannot be considered in evidence, the defendants cannot claim any
right under the Will. In the said circumstances, the right of the plaintiff would become absolute, since she would come as a class-I heir as per the
provisions of Hindu Succession Act to inherit the properties of her husband u/s 8 of the said Act.
The other argument advanced by the learned counsel for the appellant that the right given under the settlement deed Ex. A1 was in lieu of the
maintenance of the wife given by a husband and it is a limited estate and that will enlarge into an absolute estate in view of Section 14(1) of the
Hindu Succession Act. The courts below have referred the judgment of Hon''ble Apex Court reported in Himi (Smt) and Another Vs. Hira Devi
(Smt) and Others, but have misapplied the principles and ((had come to the conclusion that the right created in Section 14(1) of the Hindu
Succession Act can be execmpted by the provision made in Section 14(2) of the Act and the settlement deed executed by a husband is an
instrument asdefined in Section 14(2) which gave restricted estate to the plaintiff and therefore, such a restrict right given to othe plaintiff in Ex. A1
will not enlarge under the benevolence of Section 14(1) of the Act.))
The relevant portion of the judgment of the Hon''ble Apex Court reported in Himi (Smt) and Another Vs. Hira Devi (Smt) and Others, , which
is applicable to the present case is as follows:-
Section 14 with its sub-sections reads as under:
Property of a female Hindu to be her absolute property.-
(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 moveable and immovable property acquired by a female Hindu 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 whatsoever, and also any such property held
by her as stridhana immediately before the commencement 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.
It is no doubt true as decided by this Court in the case of V. Tulasamma v. Sesha Reddy that sub-section (2) of Section 14 of the Hindu
Succession Act is a proviso to sub-section (1) of Section 14. But Section 14 sub-section 18 (1) would apply only if the property is acquired by a
female Hindu in lieu of maintenance or by virtue of any pre-existing right. Bhagwati, J., (as he then was) speaking for himself and A.C. Gupta, J., in
the aforesaid decision has made the following pertinent observations in this connection of the Report: (SCC pp. 139-41, paras 68 and 69)
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 commencement of the Act or was subsequently acquired and
possessed, she would become the full owner of the property.
* * *
This provision is more in the nature of a proviso or exception to sub-section (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).... 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 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.... Where, however, property 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, decree, order or award allotting the property prescribes a restricted estate in the
property.
As per the aforesaid judgment of the Hon''ble Apex Court, it had recognised the right derived by a female Hindu in an instrument as mentioned
in Section 14(2) of the Act will also get her limited right enlarge u/s 14(1) of the Act, when such restricted right was granted in lieu of her
maintenance and the principles laid down in AIR 1977 SC 1944 Tulasamma''s case has been approved. In the said circumstances, the plaintiff
admittedly being a Hindu wife, was entitled to maintenance from her husband on her separation, she was settled with the suit properties by her
husband through Ex. A1 in lieu of her maintenance for life. The said restricted estate granted by her husband was purely for the existing right of
maintenance of the plaintiff. Therefore, Ex. A1 cannot be simply referred to as an instrument as mentioned in Section 14(2) of the Act, it comprises
the consideration of pre-existing right of maintenance and therefore, the principles laid down by Hon''ble Apex Court both in AIR 1977 SC 1944
(V. Tulasamma v. Sesha Reddy) as approved by the judgment in Himi (Smt) and Another Vs. Hira Devi (Smt) and Others, are applicable to the
present case and the right created in favour of the plaintiff under Ex. A1 would enlarge u/s 14(1) of the Hindu Succession Act. The said principle
laid down by the Hon''ble Apex Court has not been followed, which is a flaw committed by the courts below.
The courts below have also committed error to the effect that even after having found that the plaintiff is entitled for life interest in the suit
property, they have not granted declaratory decree to that extent, since it being a lesser relief. On the other hand, the trial court as well as the first
appellate Court have chosen to dismiss the entire declaratory relief, but granted a decree for permanent injunction. In that aspect, the courts below
have also erred in law.
In the earlier paragraphs, I have discussed and found that the unprobated Will cannot be looked into by the trial Court for determining the
rights of the parties, and therefore, the defendants have not shown any right over the suit properties and other properties as legatees under the said
impugned Will Ex. B3. In the said circumstances, the plaintiff would be the absolute owner by virtue of intestate succession to the properties of her
husband, namely, the suit properties as well as other properties. Therefore, the courts ought to have granted a decree of declaration and also
permanent injunction in favour of the plaintiff. Therefore, I am of the considered view that the first appellate court erred in upholding law that once
an unprobated Will could not be looked into and no right could be flown from the said unprobated Will, the relief sought for by the plaintiff ought
to have been granted with the declaratory relief and modified the judgment and decree passed by the trial court in terms of law. But it had failed to
do so. Contrary to that, it had confirmed the erroneous judgment of the trial court. Therefore, it has become necessary for this Court to set aside
the judgment and decree of the first appellate court which confirmed the order of the trial court and thereby, the appeal is allowed and
consequently, the suit filed by the plaintiff before the learned Additional District Munsif, Gingee in O.S. No. 60 of 1994 is decreed absolutely as
prayed for with costs.
Accordingly, the Second Appeal is allowed. No order as to costs in this appeal.