M.P. THAKKAR, J. – Under the same law [Section 14(1) of Hindu Succession Act, 1956] in an
identical fact-situation, a Hindu widow who has inherited property in Orissa or Andhra Pradesh
would be a ‘limited owner’ and would not become an ‘absolute owner’ thereof whereas if she has
inherited property in Madras, Punjab, Bombay or Gujarat she would become an ‘absolute owner’.
That is to say, in a situation where a Hindu widow regains possession of a property (in which she
had a limited ownership) subsequent to the commencement of the Act upon the retransfer of the
very same property to her by the transferee in whose favour she had transferred it prior to the
commencement of the Act. This incongruous situation has arisen because of an interpretation and
application of Section 14(1) of the Hindu Succession Act, 1956. In the context of the aforesaid
fact-situation the High Courts of Orissa [Ganesh Mahanta v.SukriaBewa, AIR 1963 Ori 167]
and Andhra Pradesh [Venkatarathnamv.Palamma, (1970) 2 Andh WR 264] have proclaimed
that she would be only a limited owner of such property on such retransfer whereas the High
Courts of Madras [ChinnakolandaiGoundanv.ThanjiGounder, AIR 1965 Mad 497], Punjab
[Teja Singh v. Jagat Singh, AIR 1964 Punj 403], Bombay
[RamgowdaAunagowdav.Bhausaheb, AIR 1927 PC 227] and Gujarat [Bai
Champav.ChandrakantaHiralalDahyabhaiSodagar, AIR 1973 Guj 227] have taken a contrary
view and have pronounced that she would become an ‘absolute owner’ of such a property in the
aforesaid situation. We have therefore to undertake this exercise to remove the unaesthetic
wrinkles from the face of law to ensure that a Hindu widow has the same rights under the same
law regardless of the fact as to whether her property is situated within the jurisdiction of one High
Court or the other.
3. The typical facts in the backdrop of which the problem has to be viewed are:
(1) A Hindu female acquired a property, say by reason of the death of her husband, before the
commencement of the Act (i.e. before June 17, 1956).
(2) What she acquired was a widow’s estate as understood in shastric or traditional Hindu
law.
(3) She lost the possession of the property on account of a transaction whereby she
transferred the property in favour of an alienee by a registered document of ‘sale’ or ‘gift’.
(4) The property in question was retransferred to her by the said alienee ‘after’ the
enforcement of the Act by a registered document thus restoring to the widow the interest (such as
it was) which she had parted with earlier by reversing the original transaction.
It is in this factual background that the question will have to be examined as to whether upon
the reconveyance of the very property which she had alienated after enforcement of the Act, she
would become a full owner in respect of such a property by virtue of Section 14(1) of the Hindu
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Succession Act, 1956. Be it realized that the law has been settled by this Court that the limited
estate or limited ownership of a Hindu female would enlarge into an absolute estate or full
ownership of the property in question in the following fact-situation:
(1) Where she acquired the limited estate in the property before or after the
commencement of the Act provided she was in possession of the property at the time of
the coming into force of the Act on June 17, 1956.
(2) Even if the property in question was possessed by her in lieu of her right to
maintenance as against the estate of her deceased husband or the joint family property,
she would be entitled to become a full or absolute owner having regard to the fact that
the origin of her right was traceable to the right against her husband’s estate.
4. The problem which has arisen in the present appeal is in the context of a fact-situation
where while the widow acquired a limited estate from her husband she was not in possession on
the date of the enforcement of the Act viz. June 17, 1956. But the possession was restored to her
upon the original alienee reconveying the property to her.
5. On an analysis of Section 14(1) of the Hindu Succession Act of 1956, it is evident that the
legislature has abolished the concept of limited ownership in respect of a Hindu female and has
enacted that any property possessed by her would thereafter be held by her as a full owner.
Section 14(1) would come into operation if was in possession of the property at the point of time
when she has an occasion to claim or assert a title thereto, or, in other words, at the point of time
when her right to the said property is called into question. The legal effect of Section 14(1) would
be that after the coming into operation of the Act there would be no property in respect of which
it could be contended by anyone that a Hindu female is only a limited owner and not a full owner.
[We are for the moment not concerned with the fact that sub-section (2) of Section 14 which
provides that Section 14(1) will not prevent creating a restricted estate in favour of a Hindu
female either by gift or will or any instrument or decree of a civil court or award provided the
very document creating title unto her confers a restricted estate on her.] There is nothing in
Section 14 which supports the proposition that a Hindu female should be in actual physical
possession or in constructive possession of any property on the date of the coming into operation
of the Act. The expression ‘possessed’ has been used in the sense of having a right to the property
or control over the property. The expression ‘any property possessed by a Hindu female whether
acquired before or after the commencement of the Act’ on an analysis yields to the following
interpretation:
(1) Any property possessed by a Hindu female acquired before the commencement
of the Act will be held by her as a full owner thereof and not as a limited owner.
(2) Any property possessed by a Hindu female acquired after the commencement of
the Act will be held as a full owner thereof and not as a limited owner.
Since the Act in terms applies even to properties possessed by a Hindu female which are acquired
‘after’ the commencement of the Act, it is futile to contend that the Hindu female shall be in
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‘possession’ of the property ‘before’the commencement of the Act. If the property itself is
acquired ‘after’ the commencement of the Act, there could be no question of the property being
either in physical or constructive possession of the Hindu female ‘before’ the coming into
operation of the Act. There is, therefore, no escape from the conclusion that possession, physical
or constructive or in a legal sense, on the date of the coming into operation of the Act is not the
sine qua non for the acquisition of full ownership in property. In fact, the intention of the
legislature was to do away with the concept of limited ownership in respect of the property owned
by a Hindu female altogether. Section 4 of the Act (it needs to be emphasized) provides that any
text, rule or interpretation of Hindu law or custom or usage as part of that law in force
immediately before the commencement of this Act, shall cease to have effect with respect of any
matter for which provision is made in the Act. The legislative intent is therefore, abundantly loud
and clear. To erase the injustice and remove the legal shackles by abolishing the concept of
limited estate, or the women’s or widow’s estate once and for all. To obviate hair-splitting, the
legislature has made it abundantly clear that whatever be the property possessed by a Hindu
female, it will be of absolute ownership and not of limited ownership notwithstanding the
position obtaining under the traditional Hindu law. Once it is shown that at the point of time when
the question regarding title to property held by a Hindu female arises, she was ‘possessed’ of the
property on that date, in the eye of law, the property held by her would be held by her as ‘full
owner’ and not as ‘limited owner’. In other words, all that has to be shown by her is that she had
acquired the property and that she was ‘possessed’ of the property at the point of time when her
title was called into question. When she bought the property from the alienee to whom she had
sold the property prior to the enforcement of the Act, she ‘acquired’ the property within the
meaning of the explanation to Section 14(1) of the Act. The right that the original alienee had to
hold the property as owner (subject to his right being questioned by the reversioner on the death
of the female Hindu from whom he had purchased the property) was restored to her when she got
back the right that she had parted with. Whatever she had lost ‘earlier’, was ‘now’ regained by
her by virtue of the transaction. The status quo ante was restored in respect of her interest in the
said property. In the eye of law, therefore, the transaction by which the vendee of the Hindu
female acquired an interest in the said property was ‘reversed’ and the Hindu female was restored
to the position prevailing before the transaction took place. In other words, in the eye of law the
transaction stood obliterated or effaced. What was ‘done’ by virtue of the document executed in
favour of the transferee was ‘undone’. Such would be the consequence of a retransfer by the
alienee in favour of a Hindu female from whom he had acquired an interest in the property in
question. Thus on the date on which her right to the property was called into question, she was
‘possessed’ of the property which she had inherited from her husband she having by then reacquired and regained what she had lost. And by virtue of the operation of Section 14(1) of the
Act the limitation which previously inhered in respect of the property disappeared upon the
coming into operation of the Act. It is no longer open to anyone now to contend that she had only
a ‘limited’ ownership in the said property and not a ‘full’ ownership, the concept of limited
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ownership having been abolished altogether, with effect from the coming into operation of the
Act.
6. Whether a challenge was made during her lifetime or it was made after her death, if the
question arose as to what was the nature of interest in the property held by the concerned Hindu
female after the reversal of the transaction the answer would be that she had a ‘full’ ownership
and not a ‘limited’ ownership. It would have been a different matter if the transferee from the
concerned Hindu female had transferred his right, title and interest in the property to a third
person instead of transferring it back to her. In that event the principle that the transferor cannot
transmit a better title or a title higher than that possessed by the transferor at the given time would
come into play. Not otherwise. When the transaction was reversed and what belonged to her was
retransmitted to her, what the concerned Hindu female acquired was a right which she herself
once possessed namely, a limited ownership (as it was known prior to the coming into force of
the Act) which immediately matures into or enlarges into a full ownership in view of Section
14(1) of the Act on the enforcement of the Act.
The resultant position on the reversal of the transaction would be that the right, title and
interest that the alienee had in the property which was under ‘eclipse’ during the subsistence of
the transaction had re-emerged on the disappearance of the eclipse. In other words, the right
which was under slumber came to be awakened as soon as the sleep induced by the transaction
came to an end. By the reversal of the transaction no right of the reversioner was affected, for he
had merely a spessuccessionis in the property and nothing more. His possible chance of
succeeding upon the death of the Hindu female disappeared from the horizon as soon as what she
had temporarily parted with was restored to her.
7. The proponents of the view canvassed by the appellant placed strong reliance on the
decision rendered by a learned Single Judge of the Orissa High Court in Ganesh Mahanta
v.SukriyaBewa and the decision of the Andhra Pradesh High Court in
MedicherlaVenkatarathnam v. SiddaniPalamma, wherein the Andhra Pradesh High Court has
concurred with the view of the Orissa High Court. The basis of the reasoning is reflected in the
following passage from Ganesh Mahantacase:
“Section 14(1) does not purport to enlarge the right, title or interest of the alienee
from widow with regard to the transfers effected prior to the commencement of the Act.
A donee from a widow prior to the commencement of the Act acquires only a widow’s
estate in the gifted property and even if the donee retransfers the property in favor of the
widow after the commencement of the Act, the widow would acquire only a limited
interest and not an absolute interest in the property as the donee cannot transmit any title
higher than what he himself had.”
It appears that the Orissa and the Andhra Pradesh High Court’s have been carried away by the
argument that the donee or the transferee who retransfers the property to the widow cannot
transmit a title higher than the title that they themselves had in the property. In substance, the
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argument is that as the transferee or the donee had only a limited interest, what he can transmit to
the widow is a limited interest. This argument postulates that Section 14(1) of the Act does not
come into play in the case of a retransfer (by the donee or the transferee as the case may be), to
the widow subsequent to the commencement of the Act. There is a basic fallacy in proceeding on
the assumption that Section 14(1) has no impact or that the provision has no role to play in case
of such a retransfer. This line of reasoning overlooks the fact that upon retransfer to the widow,
the original transaction is obliterated and what transpired by virtue of the consequence of the
original transfer stands reversed. The resultant position is that the widow is restored to the
original position. Section 14(1) would not be attracted if the widow was not possessed of the
property after the coming into force of the Act. But in view of the reversal of the transaction, the
widow becomes possessed of the property which she had possessed prior to the transfer to the
original alienee or the donee. And Section 14(1) straightway comes into play. By virtue of the
reversal of the original transaction, her rights would have to be ascertained as if she became
possessed of the property for the first time, after the commencement of the Act. It is now well
settled that even if the widow has acquired the interest in the property and is possessed of the
property after the commencement of the Act, her limited right would ripen or mature into an
absolute interest or full ownership. The question that has to be asked is as to whether the widow
became possessed of the property by virtue of the acquisition of interest subsequent to the
operation of the Act and whether such interest was a limited interest. The whole purpose of
Section 14(1) is to make a widow who has a limited interest a full owner in respect of the
property in question regardless of whether the acquisition was prior to or subsequent to the
commencement of the Act. On the date on which the retransfer took place, she became possessed
of the property. She became possessed thereof subsequent to the commencement of the Act.
In the result her limited interest therein would enlarge into an absolute interest, for, after the
commencement of the Act any property possessed of and held by a widow becomes a property in
which she has absolute interest and not a limited interest, the concept of limited interest having
been abolished by Section 14(1) with effect from the commencement of the Act. The Orissa High
Court and the Andhra Pradesh High Court have fallen in error in testing the matter from the
standpoint of the alienee or the donee who retransfers the property. The High Court posed the
question as to whether they would be entitled to full ownership in view of Section 14(1), instead
of posing the question as to whether the widow who becomes possessed of the property after the
commencement of the Act would be entitled to claim that her limited interest had enlarged into an
absolute interest. Of course, Section 14(1) is not intended to benefit the alienee or the donee, but
is intended and designed to benefit the widow. But the question has to be examined from the
perspective of the widow who becomes possessed of the property by virtue of the acquisition
pursuant to the retransfer. The Andhra Pradesh High Court has also fallen in error in accepting
the fallacious argument that the widow would be in the position of a stranger to whom the
property was reconveyed or retransferred. This fallacy is reflected in the following passage:
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Therefore reconveyance will not revive her original right in the property and she will
be holding the estate reconveyed just like any other stranger alienee, for the lifetime of
the alienor widow, though she happens to be that widow, and there can be no question of
one alienation cancelling the other and the status quo ante, the widow’s alienation being
restored.
The case of the widow who had temporarily lost the right in the property by virtue of the
transfer in favour of the alienee or the donee cannot be equated with that of a stranger by
forgetting the realities of the situation. Surely, the Act was intended to benefit her. And when the
widow becomes possessed of the property, having regained precisely that interest which she had
temporarily lost during the duration of the eclipse, Section 14(1) would come to her rescue which
would not be the matter in the case of a stranger who cannot invoke Section 14(1). A further error
was committed in proceeding on the mistaken assumption that the decision in
GummalapuraTagginaMatadaKotturuswami v. SetraVeeravva[AIR 1959 SC 577], supported
the point of view which found favour with the Orissa and the Andhra Pradesh High Courts. In
Kotturuswamicase the alienation had taken place before the commencement of the Act and the
widow had ‘trespassed’ on the property and had obtained physical possession as a trespasser
without any title. It was not a case where the widow had regained possession lawfully and
become entitled to claim the benefit of Section 14(1) having become possessed of the property by
way of a lawful acquisition subsequent to the commencement of the Act. It was overlooked that
Section 14(1) in terms used the expression “whether acquired before or after the commencement
of the Act”. If the legislature had not contemplated a widow becoming possessed of a property by
virtue of an acquisition after the commencement of the Act, the aforesaid expression would not
have been used by the legislature. The Orissa and the Andhra Pradesh High Courts have failed to
give effect to these crucial words and have also failed to apply the principle in Kotturuswamicase
properly, wherein the widow obtained possession as a trespasser. In fact the expression
“possessed of” pertains to the acquisition of a right or interest in the property and not to physical
possession acquired by force or without any legal right. The ratio in Kotturuswamicase was
therefore misunderstood and misconceived by the Orissa and the Andhra Pradesh High Courts.
We agree with the reasoning of the Madras High Court in Chinnakolandai v.
ThanjiwhereinRamamurthi, J. has made the point in a very lucid manner in the following
passage:
With respect, I am unable to agree with this view, as the entire reasoning is based
upon the view that there is no difference between a reconveyance in favour of the widow
herself and alienation in favour of the stranger. In my opinion, there is all the difference
between a case of annulment of a conveyance by consent of both the parties and a case of
a subsequent alienation by the alienee in favour of a stranger. In the former case the
effect of the alienation is completely wiped out and the original position is restored. This
distinction has not been noticed in the decision of the Orissa High Court. The acceptance
of the contention urged by learned counsel for the appellant would lead to startling
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results. Take for instance an unauthorised alienation by a guardian. If some cloud is cast
on the validity of the alienation, and if the alienee, not willing to take any risk till the
attainment of majority, by the minor, conveys back the property to the guardian, it would
not be open to the guardian to contend that he had acquired the voidable title of the
alienee. In other words, he cannot contend as against the quondam minor that the income
from the property would be his, and that till the minor takes proceedings for setting aside
the alienation the guardian should be deemed to have acquired the right, title and interest
of the alienee. Such a contention on the fact of it is untenable.
The instance of an alienation by a trustee or an executor may also be considered. If
after the alienation by the trustee or executor the beneficiary raises some objection about
the validity of the alienation whether well-founded or ill-founded and if the alienee who
is not prepared to take any risk conveys back the property to the trustee or the executor as
the case may be it cannot possibly be contended that the trustee or the executor got back
the property in any right or character other than in which it was originally alienated. As a
result of the reconveyance the property would form part of the trust estate. In all these
cases the alienor suffers under a legal disability from holding the property in any other
capacity. It is needless to multiply instances. I am therefore clearly of the opinion that
there is nothing in law to prevent an alienation being completely nullified as if it never
took effect provided the alienor and the alienee agree to such a course. The position is a
fortiori where the title conveyed to the alienee is a voidable one. It cannot be disputed
that when the reversioner files the suit, it is open to the alienee to submit to a decree.
After such a declaratory decree is passed, there is nothing in Hindu law which compels
or obliges the alienee to retain and keep the property himself and hand it over to the
reversioner. It is certainly open to him to respect the decree and convey back the property
to the widow even before her death. It is obvious that what the alienee can do after the
termination of the suit can equally be done during its pendency. Surely the alienee is not
a trustee for the reversioner to keep the property in trust and deliver the property on the
death of the widow.
8. Our own reasons we have already articulated. The reasoning unfolded in the foregoing
passage, we fully and wholeheartedly endorse. In the result we uphold the view that in such
circumstances the concerned Hindu woman is entitled to become an absolute owner of the
property in question. The appeal fails and is dismissed.
