Thimma Venkataraman (Died) and Others vs R. Rangaswamy

Sethuraman, J.—This appeal has been filed by the Defendant in Original Suit No. 162 of 1969 on the file of the Court of the District Munsif, Thiruvaiyaru. It is virtually fight between two widows, who lost their husbands prior to 1937; one of them is doing so posthumously and both of them through proxies. There was one Thimma Ramasamy Chettiar, who had a son by name Thimma Venkatachalapathy; both of them constituted a joint Hindu family. The father Thimma Ramasamy Chettiar, died leaving behind him his wife, Thulasiammal, and the son died leaving behind him his widow Saraswath Ammal. There was some controversy at the earlier stages of the litigation as to, who died first, whether the father or the son. Now, it is not in dispute that the father died earlier. On the death of the son, Thimma Venkatachalapahi Chettiar, his wife, Saraswthi Ammal, who appears to have been more resourceful, took charge of the properties left behind by the aforesaid joint family. Thulasimmal was obliged to file a suit Original Suit No. 28 of 1927 on the file of the District Munsif''s Court, Thiruraiyaru for maintenance and recovery of the suit property for her residence from Saraswathi Ammal, her daughter-in-law, She obtained a decree, which declared her light to reside in the suit property. During her lifetime, in execution of this decree, she obtained possession of the property from Saraswathi Amaml and continued to reside in it had she died on 15th April, 1968. She left behind a Will, dated 19th May, 1965. bequeathing the property to the Defendant.

On the death of Thulasiammal, Saraswathi Ammal, who is happily alive, in assertion of her right to the suit property, executed a settlement deed on 9th July, 1968, settling the property on the Plaintiff. This deed was duly registered. The original Will left behind by ''Thulasiammal is exhibit B-3 and the settlement deed is exhibit A-2.

The Plaintiff claiming his title to the suit property under exhibit A-2 filed the present suit for declaration of his title and for recovery of possession. The Defendant contested the claim of the Plaintiff by reference to the Will, exhibit B-3, and contended that the testator Thulasimmal had under the law become the absolute owner of the property, which she was entitled to dispose of by the Will. The Defendant put forward his claim to the suit property by relying also on a patta granted to him on 29th November, 1968. by the settlement Tahsildar under the Tamil Nadu Act XXVI of 1963.

The trial Court framed the relevant issues that arose out of the pleadings and came to the conclusion that the rights of residence given to Thulasiammal under the decree, marked as exhibit A-1, in the suit mentioned already, came within the scope of Section 14(2) and not Section 14(1) of the Hindu Succession Act, 1956, that she had not become the absolute owner of the property, and that Saraswathi Animal became the absolute owner thereof. He, therefore, decreed the suit by the Plaintiff based on the settlement, exhibit A-2.

The Defendant appealed and the learned Subordinate Judge of Thanjavur held, in agreement with the trial Court, that Section 14(2) alone applied and that the Plaintiff had acquired title to the suit property under exhibit A-2 so as to be entitled to maintain his present claim for declaration of his title and for recovery of possession. The unsuccessful Defendant is now on second appeal. The genuineness of either the settlement or the Will is not in dispute.

The only question that arises for consideration is, whether the present case falls within the scope of Section 14(1) or Section 14(2). The relevant provision runs 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" include both movable 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 its 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 01 award prescribe a restricted estate in such property.

The Supreme Court in V. Tulasammal v. V. Sesha Reddi AIR 1977 S.C. 1944 has lamented on the serious difficulties of construction of this provision and the need for Parliament taking notice of the difficulty in construction and making its intention clear. Though this judgment was rendered on 17th March, 1977, we are still in the same position as it was on the date of the Supreme Court''s pronouncement.

As a result of the decision cited above, the difficulty in construction was, to a large extent, been removed. The Hindu Succession Act confers upon Hindu women rights of the inheritance and sweeps away the traditional limitations of their powers of disposition, which were regarded as inhering in her estate under the shastric Hindu Law as interpreted by Courts The purport of Section 14 is to expand the limited estate enjoyed by a Hindu women in possession, into an absolute one, whether the property was acquired before or after the commencement of the Hindu Succession Act, 1956, Sub-section (2) has been construed to be more in the nature of proviso or exception to Sub-section (1).

We may first consider whether the property under consideration is liable to be brought within the scope of Sub-section (2) In this context it is necessary to refer to what happened in the suit filed by Thulasiammal as original Suit No. 288 of 1927. In that suit, Saraswathi Ammal and one Kondayyan Chettiar were impleaded as Defendants. Kondayyan Chettiar claimed certain rights as a mortgagee in respect of the said property and that is why he was a party to the litigation. The suit was decreed on 31st January, 1929. The judgment itself has not been exhibited. As some argument was sought to be advanced on the basis of the prayers in the suit the portion of the prayer as set out in the decree may be extracted here:

Suit in forma pauperis to recover on a charge of the print A Schedule property (a) past maintenance for six years Rs. 360 and (b) future maintenance from the date of plaint tenable for life at the rate of 12 kalams of Samba paddy and cash Rs. 30- per year payable in March of every year and in default payable with interest from the date of default on the market value of paddy, to recover Rs. 120/- being the value of the Plaintiffs jewel in the lands of the first Defendant Saraswathi Ammal, who is the daughter-in-law of the Plaintiff, and for recovery of the B Schedule property for the Plaintiff''s residence from the first Defendant.

The relevant part of the decree runs as follows:

This suit coming on for final hearing on the 19th day of December, 1928 ... and having stood over consideration till this day, this Court doth order and decree:

(1) ....;

(2) ....;

(3) that the plaint A Schedule properties described here under be charged with the payment of the maintenance immovable to the Plaintiff, past and future, in preference to the othi right claimed by the second Defendant and that the said charge be enforceable in execution by the sale of the said charged properties;

(4) that it be declared that the Plaintiff is entitled to reside in the house described in the plaint B Schedule and hereunder as she has been residing hitherto;

(5) ....;

(6) ....;

There are two schedules to the decree. A schedule consists of certain other immovable properties. B schedule specifies the house.

In V. Tulasamma v. V. Sesha Reddi AIR 1977 S.C. 1944 the facts were as follows: One Venkatasubba Reddy died in the year 1931 in a state of jointness with his step-brother Sesha Reddy. He left behind his widow, Tulasamma. She filed a petition for maintenance, and there was a decree on June 19, 1946. After the appeal against the decree was dismissed, Thulasamma put the decree in execution, and at the execution stage there was a settlement out of Court on 30th July, 1949, which was recorded by the executing Court under Order XXI, Rule 2 of the Code of Civil Procedure. Under the compromise, Thulasamma was allotted the suit properties, but she was to enjoy them only as a limited owner with no powers of alienation and the properties were to revert to Sesha Reddy. Thulasamma continued to remain in possession of the properties even after the coming into force of the Hindu Succession Act, and by two registered documents, executed on 12th April 1960 and 25th May, 1961, she leased some of the properties to Defendants 1 and 3 and sold some of the properties to the fourth Defendant. The suit was to challenge the said alienations made by Thulasamma. It is this suit which ultimately reached the Supreme Court. There were two separate judgments, one by Bhagvathi, J., with whom A.C. Gupta J., concurred, and another judgment by Fazal Ali, J. The conclusion ultimately arrived at was unanimous. At page 1947, Bhagvthi, J., pointed out that Sub-section (2) being an exception, it has to be construed strictly in such a manner as not to emasculate Sub-section (1). While referring to an earlier decision in Badri Pershad v. Kanso Devi [1970] 2 S.C.R. 95. His Lordship observed:

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. This constructional approach finds support in the decision Seth Badri Prasad Vs. Srimati Kanso Devi, 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....

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:

At page 1978 Fazal Ali, J., observed as follows:

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 4(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 Section 14 is in the nature of a proviso and has a field of its own without interferring with the operation of Section 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by Section 14(1) or in a way so as to become totally inconsistent with the main provision.

The distinction between recognition, of a pre-existing right and conferment of right for the first time with reference to a particular property is emphasised in this judgment also.

The reason for the rule enacted behind Section 14(2) with reference to a right created for the first time is not far to seek. So long as the female was the object of a bounty or is not in a position to trace the conferment of any right to her husband or to her position as a Hindu widow, she would be in the same position as a Hindu male. Just as in the case of a male, property rights can be conferred in limited or absolute terms as the person, who gives or bequeathes the property thinks fit, and just as the male would be bound by the terms of the grant so also the Hindu female would be bound by the terms of the document which gave her certain rights in a particular property for the first time. The fact that she is female cannot make any difference or put her in a higher position than the male. In other words, absolute equality with the male is ensured in Sub-section (2).

The scheme behind the law was to emancipate the shackless that bound the Hindu female under the Shastric Hindu Law interpreted by the Courts. The emancipation started with the Hindu Women''s Right to Property Act, 1937. By that Act, the widow of a person was reccognised as and their, though with a limited estate The Hindu Succession Act, 1956, enlarged her interest into an absolute on the From the passage extracted from Bhagwati J''S judgment in V. Tulasammma v. V. Sesha Reddi AIR 1977 S.C.1944 it would be clear that the acquisition of a property in lieu of rights to maintenance has been held to be by virtue of a pre-existing right which does not fall within the scope of Sub-section (2) As pointed out by Fazal Ali J., at page 1977 in the same judgment, 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 the 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 Yajnvalkya 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. Thus, the right of maintenance being a pre-existing right, arising by virtue of her relationship with the husband the interest in the property created by the decree in lieu of her right to maintenance does not bring it within the scope of Sub-section (2). The passage as given above are clear to show that Sub-section (1) of Section 14 applies to a case like the one here, where the decree was passed in recognition of her pre-existing right to maintenance.

Mr. K.N. Balasubramaniam, the learned Counsel for the Plaintiff-Respondent, submitted that in the present case, there was no allotment of the property to Thulasiammal as was done in the case., before the Supreme Court in V. Tulasamma v. V. Sesha Reddi AIR 1977 S.C.1944. It is not possible to consider the law as laid down by the Supreme Court in such restricted terms, as if it would apply only to a situation where there was a specific allotment of the property. There is enough indication in the judgment tendered in the said case to show that even recognition of the right of maintenance would bring the case within the scope of Sub-section (1) of Section 14. The right of maintenance is a right to food shelter and raiment. In the present case, Thulasiammal had not to ask for the allotment of the property in her name as she was already residing therein. In the absence of the plaint and the other documents, it is not possible to find out, why there was a prayer for recovery of possession as shown in the extract from exhibit A-1 set out above. Apparently the first Defendant was also in occupation of a part of the property as in exhibit B Schedule, In the decree there was a reference to a southfacing room, a verandah in the front and a kitchen at the back along with the right of access. At any rate, whether she was residing in the property already or not, as a result of the decree she became entitled to reside in the property and that is enough for our present purpose to cloth her with absolute right in the property.

Mr K.N. Balsubremaniam contended that Thulasiammal had lost her husband even prior to 1919, Saraswathi Ammal had lost her husband in that year, and that after the death of Thimma Ramasamy Chettiar, Thimma Venkatachalapathi Chettiar became the surviving coparcener end on the death of Thimma Venkatachalapathi Chettiar, Saraswathi Ammal, became the heir as his wife. The submission was that it was Saraswathi Animal''s interest, which would only be a limited one under the relevant law prevailing then, that was expanded into an absolute one by the Hindu Succession Act, 1956. For the purpose of the present case it is not necessary to execute the nature of the interest of Saraswathi Ammal. It is enough to mention that Thulasiammal became entitled to an absolute interest in the property by reason of the application of Section 14(1) of the Act as soon as it was found that at the commencement of the Act she was in possession of this property by virtue of a decree recognising her pre-existing right.

There was debate on the rights of the pre-1937, Hindu Widows like Thulasiammal. The learned Counsel for the Respondent characterised her right as a bare right to maintainance. There was also some discussion based on Thrulasiammal having lost her husband long prior to 1937. With reference to the question of the rights of pre-1937 Hindu widow over properties, there was an earlier decision in Smt. Naraini Devi Vs. Smt. Ramo Devi and Others, . One Hira Lal died in 1925 leaving behind him a widow by name Naraini Devi and three sons of whom Kapoor Chand was one. Kapoor Chand, himself died in 1954 and his widow had obtained a money-decree against her husband''s brother. In execution of that decree she attached a house property belonging to the husband''s family. Hira Lal''s widow, Naraini Devi, having filed in her objection under Order XXI, Rule 58 of the Code of Civil Procedure, filed a suit to establish her claim over the said property. The suit was decreed by the trial Court and on appeal it was dismissed. The second appeal to the High Court also failed. The matter reached the Supreme Court, and before it reliance was placed on the decision, in Seth Badri Prasad Vs. Srimati Kanso Devi, . Dealing with the contention, Sarkaria J., sitting with Fazal Ali, J., observed as follows:

The rules in Seth Badri Prasad Vs. Srimati Kanso Devi, , is not applicable here. In that case the widow had acquired a share in the property by virtue of the Hindu Women''s Rights to Property Act, 1937 on the death of her husband, which took place after the coining into operation of that Act, In the present case, Srimathi Naraini Devi''s husband died in 1925. In the presence of her sons, the widow did not get any share or interest in the house left by her husband under the Hindu Law as then applicable. In short, she had no pre-existing right or interest in the house in question. It was the award, dated January 4, 1946, that created a restricted estate for her in the house in question. Her case thus falls squarely within the ambit of Sub-section (2) of Section 14 of the Hindu Succession Act. Her interest therefore, came to an end on her death which took place during the pendency of these proceedings.

The appeal filed before the Supreme Court also. If this case continued to hold the field, then the contention of Mr. K.N. Bala subramaniam would have merit. Unfortunately for him this case was specifically over-ruled in V. Tulasamma v. V. Sesha Reddi AIR 1977 S.C. 1944 Fazal Ali J., refers to this case in paragraph 68 of the decision in V. Tulasamma v. V. Sesha Reddi AIR 1977 S.C. 1944 observed as follows:

Unfortunately the various aspects namely, the nature and extent of the Hindu Women''s right to maintenance the limited scope of Sub-section (2)) will is a proviso to Sub-section (1) of Section 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... The attention of this Court, however, was not drawn to the language of the Explanation to Section 14(1) where a property given to a widow at a partition or it lieu of maintenance had been placed in the same category, and therefor, the reason given by this Court does not appeal 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 Smt. Naraini Devi Vs. Smt. Ramo Devi and Others, was not correctly decided and is, therefore, over-ruled.

Thus, the matter has been put beyond controversy by their Lordships in V. Tulasamma v. V. Sesha Reddy AIR 1977 S.C. 1944. So long as the widow obtained rights in the property in lieu of her right to maintenance the limited rights conferred on her would expand into an absolute estate on account of operation of Section 14(1).

The learned Counsel appeared to have some stress on the word acquire to used in the provision as of there must be some acquisition of the property and not a me of recognition of right to residence. It has been ruled in Seth Badri Prasad Vs. Srimati Kanso Devi, that the word acquired in Section 14(1) has to be given the widest possible meaning as shown by the language of the explanation Section 14(1) Where the female got some pre-existing right in the property by virtue of which she was in possession, then no one else could complete with her or defeat or frustrate the rights she had and the rights acquired by her would expand into an absolute right consequent on Section 14(1). The words any property occuring in the provision are, even without any amplification, large enough to cover any and every kind of property and the Explanation has indicated the extensives terms in which the word property has been used in the said provision.

M.K. Sarvabhauman, the learned Counsel for the Appellant drew my attention to a decision of this Court in Venugopala Pillai Vs. Thayyanayaki Ammal and Others, . It that case one Sarangajani Pillai, who had no male issue, died leaving his widow Arumbu. Ammal and a daughter Valliammal. He executed a Will under which Arumbu Ammal was to have a life interest in the properly and after her death, the property was to be divided between his daughter, Valliammal and his brother Balakrishna. Ultimately the Will was given the go-by in a suit in which there was a compromise wherein it was provided that Arumbu Ammal should enjoy the property for her life without any powers of alienation and after her, Valliammal should enjoy the property without any alienation and, if there was any male heirs to Valliammal, they would take the property absolutely. On failure of any male heirs to Valliammal, Balakrishna was to take the property. Valliammal died issueless in the year 1940. The question before this Court was whether Arumbu Ammal, who survived the 1956 Act, was entitled to an absolute interest in the property. At page 130 after referring to Section 14(2) applying to a case where there was no pre-existing right incidentally it may be mentioned here that this concept of preexisting right was evolved by this Court secured the approval of the Supreme Court the learned Judges pointed out that the acid test was to find whether under a given instrument, the title was created in the widow for the first time or in entitlement in her was merely a reiteration of a right which she possessed already under the Hindu law. On the facts it was held that Arumbu Amnal acquired an absolute interest in the property by reason of the arrangement under which she was put in possession of the suit properties. That was also a case where Arumbu Ammal lost her husband long prior to 1937. In this judgment, the judgment of the Superme Court in V. Tulasamma v. V. Sesha Reddi AIR 1977 S.C. 1944 has been referred to and followed.

There is an earlier decision in Muthu Bhattar Vs. D. Chokku Bhattar and Others, . In that case one Chinnasa a Bhattar died leaving behind him two sons, Subbu Battar and Chukku. Battar. Chukku Battar died in 1935, and Subbammal was his widow. She died on 3rd September, 1965. Subbammal fled Original Suit No. 202 of 1940 in the District Munsif''s Court, Madurai stating that she was living in one of the family houses and that in consequence thereof she claimed a sum of Rs. 75 on account of her maintenance as additional monetary claim. The District Munsif referred to Subbammal not claiming any independent relief in respect of her right to residence, and he directed maintenance at the rate of Rs. 25 per month, which was enhance to Rs. 30 per month on appeal. Subbammal continued to reside in the property. She executed a Will bequeathing the property in favour of her near relations, who took possession of the property on her death. At that stage the adopted son of Sutbammal, a brother of Chokku Battar filed a suit for declaration of this title to the suit property as the immediate revisioner on the death of Subbammal. It is this suit which ultimately reached this Court in appeal and Ramaprasada Rao J., as he then was and Ramaprasada Rao J., held that the widow had got possession of the property in lieu of her maintenance and that there was an automatic expansion of her qualified interest in the property into an absolute interest. In that case reference was made to it Full Bench decision in Bamanadan v. Rangammal I.L.R (1688) Mad. 260 wherein it was ruled that the rights of manaintenece was a right to or an inter still an ancestral property. This case also supports the case of the Appellant, and so long as the right of maintenance has ripenec either into a decree or into any other arrangement by which the female was put in possession of any property, she would be entitled can absolute interest in the property, if she survived the 1956 Act.

The result is that the Plaintiff is not entitled to a declaration as prayed for and the suit is accordingly dismissed. The appeal is allowed. There will be no order as to costs.