P.N. BHAGWATI, J. (for himself, and Gupta, J.)(Concurring) – 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.
67. The short question that arises for determination in this appeal is as to whether it is subsection (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 limitation 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 prescribed 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
unmoved 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 paradise 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
authorities in the country as also with the legal profession and immediately respond by making
recommendations for suitable 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 drawbacks 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
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certain amount of clarity, certainty and simplicity which alone can make it easily intelligible to
the people.
68. 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. 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 Legislature, by enacting sub-section (1) of Section 14, intended, as pointed by this
Court in S.S. Munna Lal v. S.S. Rajkunua [AIR 1962 SC 1493] “to convert the interest which a
Hindu female has in property, however, restricted the nature of that interest under the Shastric
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
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 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 the Act. Whatever be the kind of property, movable or immovable, and
whichever be the mode of acquisition, it would be covered 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 Shastric law, to abridge the stringent provisions
against proprietary rights which were often regarded as evidence of her perpetual tutelage and to
recognize 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 GummalapuriTaggiiwMatadaKolturuswami v.
SatreVeerayya [AIR 1959 SC 577]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
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recognised by law. Elaborating the concept, this Court pointed out in Mongol Singh v.
Rattno[AIR 1967 SC 1767] that the section covers all cases of property owned by a female Hindu
although 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 commencement of the
Act or was subsequently acquired and possessed, she would become the full owner of the
property.
69. 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 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
provision 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. SmtKanso Devi [(1970) 2 SCR 95]. 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 subsection (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 prescribes 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 in lieu
of maintenance and the instrument, decree, order or award giving such property prescribes limited
interest for her in the property. 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 maintenance under an instrument, order or award would be excluded from the operation of the
beneficent provision enacted in subsection (1), since in most of such cases, where property is
allotted to the Hindu female prior to the enactment of the Act, there would be a provision, in
consonance with the old Shastric law then prevailing, prescribing limited 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 subsection (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
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restricted 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 isolation but it should be
construed with reference to the context 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 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 in Badri Pershadcase 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 Succession
Bill 1954, which ultimately culminated into the Act, was referred to a Joint Committee of the
Rajya Sabha. clause 16(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 instrument, 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 preexisting right – a kind of acquisition akin to one under gift or will. 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 preexisting 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.
70. This line of approach in the construction of sub-section (2) of Section 14 is amply borne
out by the trend of judicial decisions in this Court. We may in this connection refer to the
decision in Badri Pershadcase. The facts in that case were that one Gajju Mal owning selfacquired 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 differences which had
arisen relating to partition of the properties left by Gajju Mal. The arbitrator made his award on
October 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 subsection (1) which applied and not sub-
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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 of 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[(1969) 3 SCC 628], there was a regular partition
deed made on December 3, 1945 between Amin Chand, a coparcener and 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 subsequent to the coming into force of the Act after making a
will bequeathing the property in favour of her daughter Vidyawanti. 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
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 allotted to
her share is merely recording the true legal position. Hence it is not possible 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 fall within Section 14(2) of the Hindu
Succession Act, 1956.
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 Subhrai Bai in virtue of a pre-existing right
inheriting 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 subsection (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 Pershadcase while
quoting with approval the observations made bv the Madras High Court in Ransaswami Naicker
v. Chinnammal [AIR 1964 Mad 387] is “only to remove the disability of women imposed by law
and not to interfere with contracts, grants or decrees etc. by virtue of which a woman’s right was
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restricted” and, therefore, where property is acquired by a Hindu female under the instrument in
virtue of a pre-existing 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 would 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 “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 subsection (2). The controversy before
us, therefore, boils down to the narrow question whether in the present case the properties 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.
71. 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 maintenance, 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 appellant in lieu of her claim for maintenance, it becomes necessary to consider the nature
of the right which a Hindu widow has i.e.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 of
whether that estate may be in the hands of his male issue or it may be in the hands of his
coparceners. The joint family estate in which her deceased husband had a share is liable for her
maintenance and she has a right to be maintained out of the joint family properties and though, as
pointed out by this Court in Rani Bai v. Shri Yadunandan Ram [(1969) 3 SCR 789] her claim
for maintenance is not a charge upon any joint family property until she has got her maintenance
determined and made a specific charge either by agreement or a decree or order of a court, her
right is “not liable to be defeated except by transfer to a bona fide purchaser for value without
notice of her claim or even with notice of the claim unless the transfer was made with the
intention of defeating her right”. The widow can for the purpose of her maintenance follow the
joint family property “into the hands of anyone who takes it as a volunteer or with notice of her
having set up a claim for maintenance”. The courts have even gone to the length of taking the
view that where a widow is in possession of any specific property for the purpose of her
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 v. Shivayagoppa [ILR
18 Bom 679] cited with approval in Ranibaicase. It is, therefore, clear that under the Shastric
Hindu Law a widow has a right to be maintained out of joint family property and this right would
ripen into a charge if the widow takes the necessary steps for having her maintenance ascertained
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and specifically charged on the joint family property and even if no specific charge is created, this
right would be enforceable against joint family property in the hands of a volunteer or a purchaser
taking it with notice of her claim. The right of the widow to be maintained is of course not a jus in
rem since it does not give her any interest in the joint family property but it is certainly jus ad
rem, i.e., a right against the joint family property. Therefore, when specific property is allotted to
the widow in lieu of her claim for maintenance, the allotment would be in satisfaction of her jus
ad rem, namely, the right to be maintained out of the joint family property. 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 Chandcase, “merely recording
the true legal position” and that would not attract the applicability of sub-section (2) but would be
governed by sub-section (1) of Section 14. The conclusion is, therefore, inescapable that where
property is allotted to a widow under an instrument, decree order or award prescribing a restricted
estate for her in the property sub-section (2) of Section 14 would have no application in such a
case.
73. 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 satisfaction 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 the 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. – 2. Venkatasubba Reddy, husband of Appellant 1 VaddeboyinaTulasamma –
hereinafter to be referred to as ‘Tulasamma’ – 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
but 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 filed an interlocutory
application for recording a compromise alleged to have been arrived at between the parties out of
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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 execution and at the execution stage
the parties appear to have arrived at a settlement out of Court which was certified by the
Executing Court on July 30, 1949 under Order XXI, Rule 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 continued to remain in possession of the properties even after coming
into force of the Hindu Succession Act, 1956 – hereinafter to be referred to as ‘the 1956 Act’ or
‘the Act of 1956’. By two registered deeds dated April 12, 1960 and May 25, 1961, the appellant
leased out some of the properties to defendants 2 and 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 lifetime of the
widow.
The basis of the action filed by the plaintiff was that as the appellant Tulasamma had got a
restricted estate only under the terms of the compromise her interest could not be enlarged into an
absolute interest by the provisions of the 1956 Act in view of Section 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-section (2) of Section 14 had no application 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 appellant was clearly covered by Section 14(2) of the Hindu Succession Act and as the
compromise was an instrument as contemplated by Section 14(2) of the 1956 Act Tulasamma
could not get an absolute interest under Section 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.
