V. KALYANASWAMY (D) BY LRS. & ANR. v. L. BAKTHAVATSALAM (D) BY LRS. & ORS.

A then, the law relating to survivorship, under which Lakshmiah Naidu would succeed to the estate of his brother, would spring into being immediately on the death of V. Rangaswami Naidu on 01.06.1955. Could it be, however, that it is possible for the appellants to contend on the Doctrine of Relating Back propounded in Addagada Raghavamma (supra) that by virtue of the contents of the Will, a division is achieved upon Lakshmiah Naidu becoming aware of the Will even after the death of his brother during the proceedings under Section 145, which is an admitted position, and its effect being felt from 10.05.1955 when the Will was made and, therefore, by this reasoning, on 10.05.1955, which is before the death of V. Rangaswami Naidu, a division is effected and, therefore, the Will becomes valid? In other words, look to the Will, to find whether its contents amount to a declaration causing a division in law from 10.5.1955 and since the Will speaks from the date of the death of the Testator on 1.6.1955, the Will becomes a valid Will? We may also, in this regard, turn to the contents of the Will, which we have already extracted in paragraph-77 hereinbefore. It will be noted that the Will starts off with the statement by the Testator that he owned the properties which included properties allotted in a partition and also which he acquired by independent purchases. Thereafter, he states that he had been a divided member since 1932 onwards. None of these statements would constitute a declaration. We have found that the case of partition in 1932 and independent purchases have been found against the appellants by three courts. Thereafter, there is only the statement that he has, in order to avoid any uncertainties, made an open declaration of his divided status ‘today’. It may be difficult for us to accept this statement as a declaration sufficient in law to cause a division. However F even for a moment that it would work out as a declaration, we would think that the law laid down by this Court in Addagada Raghavamma (supra), may pose obstacles insuperable in nature, for the appellants. While it may be true that under the Doctrine of Relation Back and proceeding on the basis that the contents, as noted in the Will, G amounted to a clear declaration to separate and that it would have effect from 10.05.1955, we cannot be oblivious to the creation of the vested rights. If the matter is to be governed under Section 3(2) of the 1937 Act, as already noted, it must be a case where V. Rangaswami Naidu died intestate. Therefore, if we proceed on the basis that there is a Will as indeed we must to accept the case of the appellants, Section 3(2) will H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 759 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

not apply. If Section 3(2) does not apply, the claim to the property by survivorship, would arise, which would be fatal to the appellants case, for the reason put forth by Shri Guru Krishnakumar, learned Senior Counsel, as noted above. That is to say, in the facts of this case, in view of the division being communicated through the Will only after the succession had opened, and even allowing for the division to have effect from 10.5.1955 when the will was made, the vested right of Lakshmiah Naidu to claim by survivorship would spring into existence on 01.06.1955 when his brother died and the subsequent communication based on the Will cannot take away vested right which became available proceeding on the basis of the Will relating to the plaint schedule properties (see in this regard para 34 of Addagada Raghavamma (supra). C DATE AND CONTENTS OF B1: EFFECT OF NON PRODUCTION OF LETTER DATED 11.5.1955 AND 16.5.1955

131Copy pinpoint131. Coming to the actual question therefore whether B1 was in fact issued, whether its contents amount to a declaration as required to create a division, and finally whether it was communicated to Lakshmiah D Naidu we find as follows:

132Copy pinpoint132. The case of the appellants is that B1 is issued on 10.5.1955. B1 is a declaration published in a newspaper. B1 as noted by the first appellate Court, is as follows: E “I have been a divided member from my brother Sri R.V. Lakshmiah Naidu ever since 1932…. I also hereby do make a declaration of my divided and separate status”.

133Copy pinpoint133. The further case of the appellants is that the requirement of communication to the other coparceners is complied with as is proved by the fact that having received B1 on the very next day Lakshmiah Naidu issued communication dated 11.5.1955 wherein he purported to dispute the allegation in B1 that there was a partition in the year 1932. The case of the appellants is further premised on the act of Rangaswami Naidu in sending a rebuttal, as it were, to the communication sent by Lakshmiah Naidu dated 11.5.1955 which he sent on 16.5.1955. Both the trial court and the High Court have however found it to be fatal to the appellants case that the appellants have not produced the said communication dated 11.5.1955 and 16.5.1955. The respondents also would contend that the High Court was right in its conclusion in that regard. On the other hand, the appellants would point out that the court H

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A must not lose sight of the fact that the communication issued by Lakshmiah Naidu dated 11.5.1955 is produced as Exhibit (43) and the communication dated 16.5.1955 was produced as Exhibit 44 in proceeding under Section 145 of the CRPC. There is reference to these documents in the order passed by the Magistrate which is marked as B2 in this case. Moreover, respondents complain about absence of pleading to the effect that B1 B was issuedcausing a division even by way of refuting the case set up inOS 649 of 1985 that Rangaswami Naidu died joint. WHETHER THERE IS LACK OF PLEADING ABOUT B1 CAUSING A DIVISION IN THE JOINT FAMILY?

134Copy pinpoint134. In O.S. No. 649 of 1985, filed by the respondents, it is averred that the plaint scheduled properties were joint family properties of the two brothers and it is further averred that there was no partition between them and they were living as joint family till the death of V. Rangaswami Naidu in 1955. In paragraph-5 of the Plaint, it is specifically averred that, till the death of V. Rangaswami Naidu, he and his brother constituted D a joint family and there was no division in status between them, and on the death of V. Rangaswami Naidu, the surviving coparcener took all the properties by survivorship. In the Written Statement, which is filed on the appellants side (viz., the Second Defendant), we notice the following pleading in paragraph-3 of the Plaint: E “3. R.V. Lakshmiah Naidu and V. Rangaswami Naidu were brothers. They were divided and living separately. They were cultivating their lands separately. The claim of the plaintiffs that R.V. Lakshmiah Naidu and V. Rangaswami Naidu were living as joint family and that there was no division in status till the death of F V. Rangaswami Naidu is false. The joint family status between the brothers was duly disrupted and put an end to. There was also division of properties, and each was enjoying his respective properties separately. V. Rangaswami Naidu also purchased lands independently.”

G (Emphasis supplied)

135Copy pinpoint135. No doubt, in O.S. No. 89 of 1983, what is averred is that the properties belonged to one V. Rangaswami Naidu. It was further averred in paragraph-9 of the Plaint that the brothers had divided the properties as early as in 1932. Out of the nine items scheduled in the Plaint (viz., O.S. No. 89 of 1983), Item Nos. 1 to 3 and Item Nos. 6 to 9 were H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 761 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

allotted to the share of V. Rangaswami Naidu and were in his possession. A Item Nos. 4 and 5 were purchased by V. Rangaswami Naidu long after the partition and belonged to him absolutely. We must also not lose sight of the fact that the averments in the later Suit (viz. O.S. No. 89 of 1983), makes reference to the allegations in O.S. No. 649 of 1985 (the number of the Suit after renumbering). Still further, we notice that when the issues were framed, the first issue was whether the Will executed by V. Rangaswami Naidu is true and valid and whether it came into force. A separate issue (Issue no. 2) was framed as to whether there was an oral partition. It is also noticed that in the discussion, the matter was debated before the Trial Court on the basis that by the publication of notice on 12.05.1955 in “Navva India” newspaper, there was division of the property.

136Copy pinpoint136. We have already noticed the pleadings of the Second Defendant in the Written Statement in O.S. No. 649 of 1985. Both the Suits were tried together. It has been averred that the brothers were divided and living separately. The claim of the respondents that there was no division in status till the death of V. Rangaswami Naidu, has been specifically pleaded to be false. The joint family status, it has been stated, was duly disrupted and put an end to.

137Copy pinpoint137. We would think that, in the facts of this case, the principle that no amount of evidence can be looked into, if there is no pleading, is in apposite. As to how the joint family status was disrupted or as to whether there was no division in status, is essentially a matter of evidence. The mere fact that it is not specifically averred, as to the mode by which the division was brought about, in our view, is not fatal to the appellants case, if it is otherwise established. F WHETHER THE CONTENTS OF B1 AMOUNT TO A DECLARATION TO EFFECT DIVISION

138Copy pinpoint138. That there was no oral partition is found unassailable. Therefore, the statement in B1, about the same, needs to be ignored being incorrect but the last sentence in our view is capable of standing G as a standalone statement. The use of the word ‘also’ appears to be deliberate. It would also probablise that there was legal advice which preceded both the making the Will and the drafting of the Notice. In B13, the executor has spoken about V. Rangaswami Naidu, expressing his desire to execute the Will on two or three occasions and about their H

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A being legal consultation. V. Rangaswami Naidu was an educated man. An Ex. MLC. He was affluent. Setting up of the case of oral partition, was also on the wings of alleged separate purchases. There was a case that the brothers exchanged list of properties. He may have entertained the idea that what had happened, did constitute a case for oral partition. If we give credit to V. Rangaswami Naidu, to have the knowledge that B a division through notice declaring intent to separate, was indispensable to the validity of the Will, as also the use of the word ‘also’, it is capable of being understood as the declaration sufficient in law to cause disruption in the joint family status.

139Copy pinpoint139. The arguments of Mr. Gurukrishna Kumar, learned Senior C Counsel, that the sentence having regard to its grammatical implications must persuade us to link it with the earlier partition, alleged in the year 1932, does not appeal to us. We should also not be unmindful of the fact that B10-Will contains the statement about having made a notice. As long as the coparcener wishes to separate, he is not required to give any D reason to separate. WHETHER THERE WAS COMMUNICATION TO THE OTHER COPARCENER

140Copy pinpoint140. Now, we come to the aspect as to whether B1 was communicated. B1 has been marked in the Trial Court as dated E 12.05.1955. The entire case of the appellants is that the notice was issued on 10.05.1955 and it was published in a newspaper “Navva India” as, admittedly, there is no case for the appellants that the intention to separate, was given by way of a notice directly to V. Lakshmiah Naidu. It was the case of the appellants that noticing the notice in the newspaper, F Lakshmiah Naidu responded by issuing a communication dated 11.05.1955, disputing the partition. In fact, it was also the case of the appellants that Lakshmiah Naidu revealed his mind to be that for bringing about disruption, that V. Rangaswami Naidu had to communicate to the other coparceners. Still further, the appellant’s case is sought to be built around the communication, by V. Rangaswami Naidu on 16.05.1955 to G Lakshmiah Naidu reiterating contents of B1.

141Copy pinpoint141. We have noticed that the contents of B1, having regard to the last part, would be sufficient to cause a division in the status of the joint family. The question is whether it was communicated, as is required in law. On the one hand, the communication set up by the appellants dated 11.05.1955 and 16.05.1955 are not produced. This shortcoming is

V. KALYANASWAMY (D) BY LRS. & ANR. v. 763 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

sought to be overcome by the appellants by relying upon the case set up by ‘A’ Party, as revealed in B2. It is the order passed by the Magistrate under Section 145 of the CrPC. We do notice, as far as the Notice issued by V. Rangaswami Naidu, it is a notice in a newspaper. It may not be as difficult in procuring a copy of the newspaper as it might be to procure the private communications, as contained in the letters dated B 11.05.1955 and 16.05.1955. We do notice that the letters dated 10.5.1955, 11.05.1955 and 16.05.1955 have been purportedly marked as B42, B43 and B44, respectively, in proceedings which culminated in B2. The pleadings in support of these documents are indeed adverted to in B2, order passed by the Magistrate.

142Copy pinpoint142. Regarding B2-Order, passed under Section 145 of Cr.PC a C contention is raised that it is not relevant under Section 40 to 43 of the Evidence Act. This question is not seen raised in the courts below. It may be true that Section 40 deals with previous judgments which would constitute a bar to the fresh proceedings and B2 is, therefore, not relevant under Section 40 of the Evidence Act. Section 41 also deals with judgments D rendered in probate, matrimonial, admiralty or insolvency jurisdiction, which has the effect mentioned in Section 41 of the Evidence Act. It is clearly inapplicable to the facts of the case. Section 42 deals with decisions being relevant if they relate to matters of public nature relevant to the inquiry. It is also not relevant. Section 43 reads as follows: E “43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant.—Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of this Act.” F

143Copy pinpoint143. In this regard, we have scanned B2-Order. The relevant part where the pleading is set out is as follows: “The deceased declared his divided status by a notice in the ‘Nava India’ dated 10.5.1955 (Exhibit P42). This attracted the attention of B Party No. 1 who wrote to him on 11.5.55 (Exhibit P43) that G all of them were undivided and that if the deceased wanted to get divided he had to intimate it to the other copartners. The deceased replied on 15.5.55 by Exhibit P44 that the stand taken by B Party No. 1 was not correct. This was acknowledged by a B Party No. 1 on 17.5.55 (Exhibit P45). H

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144Copy pinpoint144. What is conspicuous by its absence in B2-Order is the response of the B Party in regard to these documents. It is not a case where there is reference to the pleading of the B Party, viz., the Lakshmiah branch that they admit the issuance of B42, B43 and B44. But there is no denial either. B2 would show that there was a case for the A Party on the lines we have indicated. Except for the discrepancy in the date of ‘B1’ being 12.5.1955 whereas B42 is dated 10.5.1955, there is consistency in the case set up by the appellants.

145Copy pinpoint145. The question relating to relevancy of judgments has been considered by a Bench of this Court in State of Bihar v. Radha Krishna Singh and Others54. The Court took the view that reliance cannot be placed on judgment based on Section 13 of the Evidence Act if it is not falling under Sections 40 to 42. Thereafter the Court held as follows: “129. In Gadadhar Chowdhury v. Sarat Chandra Chakravarty [AIR 1941 Cal 193 : (1940) 44 Cal WN 935 : 195 IC 412 : 72 Cal LJ 320] it was held that findings in judgments not inter partes are not admissible in evidence. In this connection a Division Bench of the Calcutta High Court observed as follows : “Though the recitals and findings in a judgment not inter partes are not admissible in evidence, such a judgment and decree are, in our opinion, admissible to prove the fact that a decree was made in a suit between certain parties and for finding out for what lands the suit had been decreed.

130. This, in our opinion, is the correct legal position regarding the admissibility of judgments not inter partes.”

F We do notice that the second of ‘A’ party in fact was the executor of the Will under which the appellants claim.

146Copy pinpoint146. Interestingly, the respondents have produced as A109 which has been marked as the copy of the type set in the revision before the High Court (the revision is filed against order B2 passed in Section 145 proceedings). It is shown wrongly marked as the order in the proceeding. G Therein we notice that the contents include apart from the impugned order (B2) the respondents documents. Among the contents the Exhibits filed on behalf of the B party are produced. It also contains the evidence of L. Venkatapathy who is none other than PW1 in this case. Therein,

54 H 1983 (3) SCC 118

V. KALYANASWAMY (D) BY LRS. & ANR. v. 765 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

there is no mention about B42, B43 and B44 in his examination. In his cross examination after stating that he found his signature(Testator) in every page of [Exhibit B68], the Will he deposed,he did not know if his father had replied to the publication in ‘Navva India’. We do not know what prevented the plaintiff in O.S. No. 83 of 1989 from producing the documents B42, B43 and B44 which would have also been available as the documents filed by the B party has been produced by party as part of A109. There is no finding in B2 about B42 publication, B43 or B44.

147Copy pinpoint147. During the hearing, it was pressed before us by the respondents that B1 is dated 12.05.1955 and if it is 12.05.1955, the very edifice of the appellant’s case would fall to the ground as then it would be impossible to support the position that in response to the notice which is published on 12.05.1955, the reply could be given on the previous date, i.e., on 11.05.1955 by Lakshmiah Naidu. It is here that the non-production of the letters dated 11.05.1955 and 16.05.1955, are sought to be emphasized. As noted, we did call for the records to verify whether marking of the documents B1 dated 12.05.1955 was a mistake, as pointed out byMr. C.A. Sundaram, learned Senior Counsel or it did reflect the ground reality. We find from B1 that Notice is published in the newspaper which is dated 12.05.1955. Therefore, the marking of the document B1, as dated 12.05.1955, is not a mistake. What are the consequences that flow from the said finding? One way to look at would be that since the notice containing the declaration, is published in a newspaper only on E 12.05.1955, the case of the appellants that Lakshmiah Naidu gave a reply on 11.05.1955, on noticing the notice, cannot be accepted. If the same is not accepted, then, the question of V. Rangaswami Naidu, sending a rejoinder, as it were also, would not arise.

148Copy pinpoint148. We have considered the contents of the Will. There is a F reference to the publication of the Notice on the said date. The Will is dated 10.05.1955. It appears to us quite clear that the Will would not have been written on 10.05.1955. It is, no doubt, executed on 10.05.1955, which we have already found. Having regards to the details in the Will and the other circumstances, we are inclined to believe that it would G have been drafted earlier. Equally, publication of a matter in a newspaper would have been arranged earlier. But what is important is, not merely the intention of the Testator as a coparcener to declare his mind to the other coparcener to separate, and even have it set-out in the Will, and further even going a step further, getting it published, but it must be H

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A proved further that, before the Testator passed away, the matter contained in B1 was known to the other coparcener, viz., Lakshmiah Naidu. This requirement is indispensable as held in Addagada Raghavamma and others (supra). In this regard, we notice that DW1, the witness on behalf of the appellants, has this to say: B “On 11.05.1955, Lakshmiah Naidu gave a reply in response to B1. The same is marked as B44 in CrPC 145 Proceedings. He clearly admitted about the division in status made between Rangaswami Naidu and Lakshmiah Naidu.”

149Copy pinpoint149. This statement goes against the appellants case. It appears to be the case of R. Krishnammal and the Executor in Section 145 of the CrPC proceedings as what is stated is that on seeing B42 (which is marked as the ‘Notice’ published on 10.05.1955), Lakshmiah Naidu sent B43 stating that there was no partition between them, for which, the deceased sent B44 reply. Thereafter, DW1 says that on 10.05.1955, on publication of advertisement in “Navva India”, he came to know that one objection advertisement was published on the very next date.

150Copy pinpoint150. Let us see what PW1 said, who was 26 years of age in 1955 and who has also given evidence in Section 145 CrPC proceedings. If there is a clear admission by him, establishing that the declaration was known to Lakshmiah Naidu before the death of V. Rangaswami Naidu, E the appellants may succeed on this point subject to the contradiction being resolved about the date of B1. After stating that, on 10.05.1955, V. Rangaswami Naidu issued Notice in India newspaper, as the partition was done, and stating that, V. Rangaswami Naidu fictionally made such paper advertisement, he, thereafter, says that he came to know about F the newspaper advertisement and Will, only in Section 145 of the CrPC proceedings. Thereafter, he says, on 12.05.1955, V. Rangaswami Naidu gave one paper publication in “Navva India”. But again, he says he came to know regarding the same during Section 145 proceedings. He further says that his father did not ask V. Rangaswami Naidu as to why he gave B1 publication. The witness says, he is not aware why B1 G publication was given. Thereafter, he says, he does not know now whether the newspaper advertisement was filed by his paternal small Uncle in Section 145 proceedings. It has been mentioned in A1 that his father made advertisement in respondent to B1. He further says that his father may be given that advertisement (Being translation from Tamil, it does not obviously do justice. We read it as “his father may have give

V. KALYANASWAMY (D) BY LRS. & ANR. v. 767 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

that advertisement”). He says that the advertisement given by his paternal small Uncle and his father reply advertisement was filed in A1-Suit and he says that it is not correct to say that his father had admitted that a division in shares and his father gave newspaper advertisement as the properties were not partitioned by metes and bound. He says that it has been mentioned in A1 (Plaint in O.S. No. 71 of 1958), as Rangaswami B Naidu gave a reply on 16.05.1955 to his father. He then admits that it is correct to say that those are marked as B42, B43 and B44, respectively, in (‘as’ sic) Section 145 of the CrPC proceedings and he gave the deposition in those proceedings. We would think that this is a vital piece of evidence which may show that B43 is the communication dated 11.05.1955 which must be taken to be sent by his father to which V. C Rangaswami Naidu respondend on 16.05.1955. This should mean that the publication on 10.05.1955 became known to Lakshmiah Naidu, as set-out in B2. The exact contents of B43 are not available.

151Copy pinpoint151. When PW1 was examined in Section 145 of the CrPC proceedings, in the chief examination, he does not say a word about D B42, B43 or B44. Then, in cross-examination, he says that he does not know if his father had replied to the publication in “Navva India”.

152Copy pinpoint152. We must notice that the High Court has proceeded on the basis of the inconsistency in the matter. There is no pleading in regard to B42, B43 or B44 in O.S. NO. 89 of 1983. In answer to the plaintiffs case, based on B1, which is dated 12.05.1955, the High Court finds that the First Defendant set-up a case that the Notice was published on 10.05.1955. The High Court also noticed the non-production of the communications dated 11.05.1955 and 16.05.1955.

153Copy pinpoint153. However, there is no case that the Notice was published on two days, viz., on 10.05.1955 and 12.05.1955. What is evidence produced before the Court is B1, which is dated 12.05.1955. If that is so, despite the inferences one could possibly draw from the deposition of PW1, it would bring it into collision with the evidence before us. If we proceed on the basis of B1, which is dated 12.05.1955, then, the reply being sent on 11.05.1955, becomes impossible. If there is no reply sent on 11.05.1955, G then, it will not be possible to attribute communication of the Notice to separate to Lakshmiah Naidu. In such circumstances, we would agree with the High Court that the case relating to B1, though there is a publication made, we cannot attribute knowledge of the same to Lakshmiah Naidu, before the death of his brother. We are not, for a H

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A moment, holding that a Notice in a newspaper cannot serve as a Notice by a coparcener to effect division. However, merely causing a Notice to be published, without there being evidence to show that the intended recipient became aware of it, may not suffice. Though a Notice in a newspaper is purported to serve as Notice to the general public, what is required is Notice to the concerned coparcener [See paragraphs-28 and B 32 of Addagada Raghavamma (supra), extracted by us in paragraph-89 hereinbefore]. There cannot be a presumption that a person has read a particular newspaper, and even more importantly, that he has read the Notice. Even the case of the appellants appears to be that, on seeing the Notice dated 10.05.1955, the communication dated 11.05.1955 was sent C by Lakshmiah Naidu, which we have found unacceptable, having regard to B1 being dated 12.05.1955. The importance of the reply dated 11.05.1955 was that it would establish knowledge of the Notice by Lakshmiah Naidu. There is no evidence that the Notice published in the newspaper dated 12.05.1955 was known to Lakshmiah Naidu before his death. D Since there was no division brought about by V. Rangaswami Naidu before his death in view of the above discussion, the Will would be invalid and therefore it would be the end of the road for the appellants. It is to be remembered that Rangaswami Naidu died on 1.6.1955, which was before the enactment of Hindu Succession Act, 1956. Thus, when E he died, he left behind an interest in the Hindu joint family. When succession opened to his estate, it is therefore, the provisions of Section 3(2) of the Hindu Women’s Right to Property Act, 1937 which apply. A limited estate in other words sprung into being in favour of R. Krishnammal, his widow. This estate would bloom under Section 14 F (1) of the H.S.A. into an absolute estate. When she compromised in OS 71 of 1958 giving up her rights over the property which included the plaint scheduled property in these cases,it conferred absolute rightsin favour of the Lakshmiah Naidu branch. We again reiterate the effect of the death of Rangaswami Naidu being before the Hindu Succession Act came into forceto be that it would deprive persons of rights available in G respect of a Hindu who dies intestate after the Act came into force. Now assuming that there was a valid Will, that is, there was a division effected in the family, we will consider whether the life estate under the Will attractSection 14(1) or Section 14(2) of the Hindu Succession Act. H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 769 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

SECTION 14 (1) VERSUS 14 (2) OF HINDU SUCCESSION A ACT 1956

154Copy pinpoint154. Section 14 of the Hindu Succession Act 1956 reads as follows: “4. 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 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 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.”

155Copy pinpoint155. Not only is the interpretation to be placed on Section 14 not res integra, it has engaged the attention of courts, including this Court, on a large number of occasions. A large number of decisions has been cited before us. The appellants would contend that in the facts of this case the provisions of Section 14(2) would apply whereas the branch of Lakshmiah Naidu would invite us to uphold the view of the High Court F that Section 14(1) applies.

156Copy pinpoint156. If Section 14(1) applies, it has the following impact: The estate which R. Krishnammal had in the properties including the plaint schedule properties would become absolute. Then, the very edifice of the claim made by the appellants who G were legatees under the Will conferred with absolute rights on the death of R. Krishnammal would collapse and they would have no right. If on the other hand, Section 14(2) applies, then, again on the basis that there is a will left behind by Rangaswami Naidu which is otherwise valid and genuine, the appellants could claim title as remaindermen. H

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157Copy pinpoint157. Before we consider the case law, it is necessary to deal with the contention of the appellants that R. Krishnammal did not set up a case under Section 14(1) and that she claimed only under the will in OS No.71 of 1958 we need only refer to para 11 of OS No.71 of 1958. The same reads as under: B “11. The plaintiff however further states that even on the very case set up by R.V. Lakshmiah Naidu in the 145 proceedings and the admission made by him, her rights are even better and as a coparcener she is entitled under the combined operation of Acts XVIII of 1937 and XXX of 1956 to an absolute state in one half of the joint properties and to demand partition and possession of C her share. Defendants 1 to 4 are entitled to the other half share. The plaintiff is unable to specify exactly all the properties in the possession of the defendants 1 to 4 but as far as she has been able to do so, she has set them out in Schedule II. The plaintiff craves leave to add to them as and when she gets better particulrs. D The plaintiff also prays that the defendants 1 to 4 might be called upon to make a full and true disclosure of the joint family properties in their possession.” It is clear that she expressly referred to the Hindu Succession Act also.

158Copy pinpoint158. Mst. Karmi v. Amru and Others55 is a judgment which is rendered by three learned judges. It was a case where a Will was executed revoking the earlier will by which a Hindu bequeathed his entire estate on his widow during her life, and thereafter, the same was to devolve on his collaterals. The Will was dated November 13, 1937. This F Court held that the widow having succeeded on the strength of the Will could not claim any right over and above what was given to her under the Will. It was held that the life estate could not become absolute estate under the Hindu Succession Act 1956.

159Copy pinpoint159. V. Tulasamma v. Sesha Reddy56 is a Judgment rendered by G a Bench of three learned Judges. It was a case where the husband of the appellant therein died in a state of jointness with his brother in the year 1939. She obtained a Decree for maintenance. This was followed by execution proceedings wherein an out of court of settlement took 55 (1972) 4 SCC 86 56 H (1977) 3 SCC 99

V. KALYANASWAMY (D) BY LRS. & ANR. v. 771 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

place under which the appellant was allotted scheduled properties which was certified on 30th July, 1949. However, it was a limited interest with no power of alienation. The suit out of which an appeal arose was filed by the respondent impugning an alienation made by the appellant. On these facts, we notice the following principles have been laid down: “62. (1) 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 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 Yajnavalkya 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. At D 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 14(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 interfering 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. G (4) Sub-section (2) of Section 14 applies to instruments, decrees, awards, gifts, etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-existing rights. In such cases a restricted estate in favour of a female is legally permissible and Section H

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A 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the female’s limited interest would automatically be enlarged into an absolute one by force of Section 14(1) and the restrictions placed, if any, B under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-section (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee. C (5) The use of express terms like ‘property acquired by a female Hindu at a partition’, ‘or in lieu of maintenance’, ‘or arrears of maintenance’, etc. in the Explanation to Section 14(1) clearly makes sub-section (2) inapplicable to these categories which have been expressly excepted from the operation of sub-section (2). D (6) The words ‘possessed by’ used by the legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title. (7) That the words ‘restricted estate’ used in Section 14(2) are wider than limited interest as indicated in Section 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee.”

160Copy pinpoint160. In Shakuntla Devi v. Kamla57, again, a Bench of three learned Judges was dealing with a case where Hindu wife was given a life interest for maintenance by a Will. The Court followed the Judgment in 57 H (2005) 5 SCC 390

V. KALYANASWAMY (D) BY LRS. & ANR. v. 773 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

V. Tulsamma (supra) and took the view that it is Section 14(1) which would apply. The terms of the Will inter alia provided that the property was not to be alienated and it was meant for their maintenance. This is a case where testator had three wives of which one had pre deceased him. Under the Will after the death of the second wife the life estate came to be vested with the third wife. The Will provided that the wife was provided with the property for her maintenance without any power of alienation.

161Copy pinpoint161. In Sadhu Singh v. Gurdwara Sahib Narike58, a Bench of two learned Judges had the following facts before it. The property in question was self-acquired property. It became the subject matter of the Will by a Hindu in favour of his wife on 07.10.1968. His widow gifted the property to a Gurudwara. This became subject matter of the litigation and the question arose whether the matter fell under Section 14 (1) or 14(2). This Court speaking though P.K. Balasubramaniam, J. noted the provisions of the Hindu Adoption and Maintenance Act and held that, in the absence of the any instrument or Decree providing for it, no charge for maintenance is created in the separate property of the husband. The Court proceeded to notice the facts in V. Tulsamma (supra) and found that it was a case where the female Hindu possessed the property on the date of the Act (Hindu Succession Act, 1956) in which she had a pre-existing right which got transformed into an absolute right. Thereafter, the Court proceeded to hold as follows: E

“7. Now, it is clear from the section and implicit from the decisions of this Court, that for Section 14(1) of the Act to get attracted, the property must be possessed by a female Hindu on the coming into force of the Hindu Succession Act. In Mayne on Hindu Law, 15th Edn., p. 1171, it is stated: F

“On a reading of sub-section (1) with Explanation, it is clear that wherever the property was possessed by a female Hindu as a limited estate, it would become on and from the date of commencement of the Act her absolute property. However, if she acquires property after the Act with a restricted estate, sub- G section (2) applies. Such acquisition may be under the terms of a gift, will or other instrument or a decree or order or award.”

58 AIR 2006 SC 3282 H

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A 8. In Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva [1959 Supp (1) SCR 968 : AIR 1959 SC 577] this Court quoted with approval (at SCR pp. 977-78) the following words of Justice P.N. Mookherjee, in Gostha Behari Bera v. Haridas Samanta [AIR 1957 Cal 557 : 6 CWN 325] (AIR at p. 559, para 12): B “The opening words ‘any property possessed by a female Hindu’ obviously mean that, to come within the purview of the section, the property must be in possession of the female concerned at the date of commencement of the Act. They clearly contemplate the female’s possession when the Act came into force. That C possession might have been either actual or constructive or in any form, recognised by law, but, unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word ‘possession’ in its D widest connotation, when the Act came into force, the section would not apply.” and added: (SCR p. 978) “In our opinion, the view expressed above is the correct view as to how the words ‘any property possessed by a female Hindu’ should be interpreted.”

E 9. In Eramma v. Verrupanna [(1966) 2 SCR 626 : AIR 1966 SC 1879] this Court emphasised that the property possessed by a female Hindu as contemplated in the section is clearly the property to which she has acquired some kind of title whether before or after the commencement of the Act and negatived a F claim under Section 14(1) of the Act in view of the fact that the female Hindu possessed the property on the date of the Act by way of a trespass after she had validly gifted away the property. The need for possession with a semblance of right as on the date of the coming into force of the Hindu Succession Act was thus emphasised.” G

162Copy pinpoint162. Still further, the Court proceeds to hold that V. Tulsamma (supra) is applicable when a female Hindu possesses the property on the date of the Act under semblance of a right whether it is limited or pre-existing act. It further held that it cannot be applied ignoring the requirement of the female Hindu having to be in possession of property H directly or constructively as on the date of the Act though she may

V. KALYANASWAMY (D) BY LRS. & ANR. v. 775 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

acquire a right to it even after the Act. It relied on judgment of this Court A in Bhura and others v. Kashi Ram59, which was a case where the father had bequeathed the property under the Will and it is held that it is 14 (2) which will apply. Lastly, the Court also relied on Sharad Subramanyan v. Soumi Mazumdar and others60. It is finally also necessary to notice paragraphs-11, 12, 13 and 14 of the judgment in Sadhu Singh v. Gurdwara B Sahib Narike and others61: “11. … What emerges according to us is that any acquisition of possession of property (not right) by a female Hindu after the coming into force of the Act, cannot normally attract Section 14(1) of the Act. It would depend on the nature of the right acquired by her. If she takes it as an heir under the Act, she takes it absolutely. C If while getting possession of the property after the Act, under a devise, gift or other transaction, any restriction is placed on her right, the restriction will have play in view of Section 14(2) of the Act.

12. When a male Hindu dies possessed of property after the coming into force of the Hindu Succession Act, his heirs as per the Schedule, take it in terms of Section 8 of the Act. The heir or heirs take it absolutely. There is no question of any limited estate descending to the heir or heirs. Therefore, when a male Hindu dies after 17-6-1956 leaving his widow as his sole heir, she gets the property as Class I heir and there is no limit to her estate or limitation on her title. In such circumstances, Section 14(1) of the Act would not apply on succession after the Act, or it has no scope for operation. Or, in other words, even without calling in aid Section 14(1) of the Act, she gets an absolute estate. F

13. An owner of property has normally the right to deal with that property including the right to devise or bequeath the property. He could thus dispose it of by a testament. Section 30 of the Act, not only does not curtail or affect this right, it actually reaffirms that right. Thus, a Hindu male could testamentarily dispose of his property. When he does that, a succession under G the Act stands excluded and the property passes to the testamentary heirs. Hence, when a male Hindu executes a will 59 (1994) 2 SCC 111 60 (2006) 8 SCC 91 61 (2006) 8 SCC 75 H

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A bequeathing the properties, the legatees take it subject to the terms of the will unless of course, any stipulation therein is found invalid. Therefore, there is nothing in the Act which affects the right of a male Hindu to dispose of his property by providing only a life estate or limited estate for his widow. The Act does not stand in the way of his separate properties being dealt with by him as he deems fit. His will hence could not be challenged as being hit by the Act.

14. When he thus validly disposes of his property by providing for a limited estate to his heir, the wife, the wife or widow has to take it as the estate falls. This restriction on her right so provided, is really respected by the Act. It provides in Section 14(2) of the Act, that in such a case, the widow is bound by the limitation on her right and she cannot claim any higher right by invoking Section 14(1) of the Act. In other words, conferment of a limited estate which is otherwise valid in law is reinforced by this Act by the introduction of Section 14(2) of the Act and excluding the operation of Section 14(1) of the Act, even if that provision is held to be attracted in the case of a succession under the Act. Invocation of Section 14(1) of the Act in the case of a testamentary disposition taking effect after the Act, would make Sections 30 and 14(2) redundant or otiose. It will also make redundant, the expression E “property possessed by a female Hindu” occurring in Section 14(1) of the Act. An interpretation that leads to such a result cannot certainly be accepted. Surely, there is nothing in the Act compelling such an interpretation. Sections 14 and 30 both have play. Section 14(1) applies in a case where the female had received the property F prior to the Act being entitled to it as a matter of right, even if the right be to a limited estate under the Mitakshara law or the right to maintenance.”

163Copy pinpoint163. This Judgment came to be followed in Jagan Singh (Dead) Through Lrs. v. Dhanwanti and another62 by a Bench of two learned G Judges. It was a case where the testator executed a registered Will in respect of Plot X with the restriction that the Legatee would not have the right to transfer the property. The matter arose out of a suit for injunction restraining alienation of Property X. This Court purported to follow the judgment rendered by a Bench of three learned Judges in 62 H (2012) 2 SCC 628

V. KALYANASWAMY (D) BY LRS. & ANR. v. 777 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

Navneet Lal alias Rangi v. Gokul and others63. We have perused the A Judgment in Navneet Lal alias Rangi (supra). We notice that the question which arose for consideration was whether the Will bestowed an absolute estate or limited estate on a widow. The Court, on a construction of the Will, found that it only created a limited interest on the widow. It is noteworthy that the Court was not dealing with the question whether the B limited estate would blossom into Section 14(1). In Sharad Subramanyan v. Soumi Mazumdar and others64, the Court found that there was no material to indicate that the property was given to a Hindu female in lieu of her right to maintenance. It is a case where it is found that the wife was living with her husband, and till the Will was probated, she was enjoying the property as her own. Jupudy Pardha Sarathy v. Pentapati C Rama Krishna65 is a Judgment rendered by two learned judges. It was a case where a Hindu executed a Will in favour of his wife which she was to enjoy but after her death one of her sons was to have the property with absolute right. The question arose again whether the case attracted Section 14(1) or 14(2). The Court noticed Mst. Karmi (supra),V. D Tulasamma (supra), Sadhu Singh (supra) and Sharad Subramnayan (supra)apart from Shivdev Kaur (Dead) by Lrs. (supra). Thereafter, the Court referred to R.B.S.S. Munnalal and others v. S.S. Rajkumar and others66 among other decisions and distinguished Sadhu Singh noting that therein the court proceeded on the basis that women had no pre- existing right in the property and therefore the life estate could not be enlarged to absolute under Section 14(1). We further notice that it was found that it was not disputed that the widow was enjoying the property by way of maintenance. The Court, therefore, distinguished Judgment of G. Rama Rao.

164Copy pinpoint164. In Gumpha (Smt.) and others v. Jai Bai67, a Bench of two learned Judges was dealing with a case where a Will was executed in the year 1941 by a Hindu giving one-half share to each of his wives for their life and the only daughter was to be the ultimate beneficiary. There was a further Will executed by one of the wives in favour of a complete stranger to the family, viz., her domestic servant. The alienation was challenged and the question arose whether the right fell under Section G

63 (1976) 1 SCC 630 64 (2006) 8 SCC 91 65 (2016) 2 SCC 56 66 AIR 1962 SC 1493 67 (1994) 2 SCC 511 H

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A 14(1) or 14(2) of the Hindu Succession Act. The Court undertook an elaborate discussion and came to the conclusion that it was a case which fell under Section 14(2) of Hindu Succession Act. The Court, in fact, took the view that the Legislature did not intend to confer a higher right on a Hindu woman as against a man. This Judgment came to be considered in a later Judgment by a Bench consisting of three learned B Judges, i.e., in C. Masilamani Mudaliar and others v. Idol of Sri Swaminathaswami Swaminathaswami Thirukoil and others 68. This case also involved a Will in favour of the widow of one Somasundaram Pillai. The statements in the Will indicated Testator entertained in his mind his duty to provide maintenance to his wife. The Court undertook a review of the earlier case law. It proceeded to find that the view taken in Gumpha (Smt.) (supra) was a restrictive interpretation which did not appear to be sound in law.

165Copy pinpoint165. In Gulwant Kaur and another v. Mohinder Singh and others69, a Bench of two learned Judges referred to the elaborate correspondence between the husband and his wife and found that the case attracted Section 14(1) of the Hindu Succession Act. It was found from perusal of the letter from the husband to his wife that the land was given in lieu of her maintenance. The Court, in fact, expressed its inability to understand the distinction between the day-to-day expenses and maintenance. The Court distinguished Eramma v. Veerupana70. Further, the Court dealt with the argument that the decision of this Court in Bai Vajia (Dead) by Lrs. v. Thakorbhai Chelabhai and others71 must be understood as laying down that what was enlarged under Section 14(1) of the Hindu Succession Act was a womans estate under Hindu law. We notice pararagraph-8A of Gulwant Kaur (supra), which reads as follows: F “8A. Shri Tarkunde particularly relied on the following passage in Bai Vajia v. Thakorbhai case [(1979) 3 SCC 300: AIR 1979 SC 993 : “A plain reading of sub-section (1) makes it clear that the concerned Hindu female must have limited ownership in property, G which limited ownership would get enlarged by the operation of that sub-section. If it was intended to enlarge any sort of a right 68 AIR 1996 SC 1697/(1996) 8 SCC 525 69 AIR 1987 SC 2251 70 AIR 1966 SC 1879 71 H AIR 1979 SC 993

V. KALYANASWAMY (D) BY LRS. & ANR. v. 779 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

which could in no sense be described as ownership, the expression A ‘and not as a limited owner’ would not have been used at all and becomes redundant, which is against the well recognised principle of interpretation of statutes that the legislature does not employ meaningless language.” We do not understand the court as laying down that what was enlarged by sub-section (1) of Section 14 into a full estate was the Hindu woman’s estate known to Hindu law. When the court uses the word “limited estate”, the words are used to connote a right in the property to which the possession of the female Hindu may be legitimately traced, but which is not a full right of ownership. If a female Hindu is put in possession of property pursuant to or in recognition of a right to maintenance, it cannot be denied that she has acquired a limited right or interest in the property and once that position is accepted, it follows that the right gets enlarged to full ownership under Section 14(1) of the Act. That seems to us to follow clearly from the language of D Section 14(1) of the Act.” (Emphasis supplied)

166Copy pinpoint166. Appellants cannot derive support from the judgment reported in Gaddam Ramakrishnareddy and Others v. Gaddam Ramireddy and Another72. Therein, a gift deed was executed on 21.12.1952 creating E a life estate and which no doubt was prior to the Hindu Succession Act. It was held that the right did not blossom into an absolute estate under Section 14(1). It is necessary to notice that the decision turned essentially on the consideration of the terms of gift deed and what is more important is the following finding: F “28. The aforesaid provision has been considered by both the courts below which have concurrently held that the life estate created by Pullareddy in favour of Sheshamma was not in lieu of her maintenance as she was already managing the properties in question and in no uncertain terms it was the donee’s desire that G the said properties should ultimately go to his son Ramireddy, Respondent 1 herein. Once that is established, apart from other surrounding circumstances, the immediate fallout is that Sheshamma’s rights in the properties came to be governed by 72 2010(9) SCC 602 H

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A sub-section (2) of Section 14 of the Hindu Succession Act, 1956, and her right does not blossom into an absolute estate as contemplated under sub-section (1).”

167Copy pinpoint167. We have already adverted to the terms of the Will. It is recited in the Will that the properties mentioned in ‘A Schedule’ are bequeathed to his wife, no doubt, for her life. This is a case where the Will itself specifically recites that she is to take income from the properties for her expenses, inter alia. She is to make use of the income also for giving presents to his sisters on ceremonial occasions. Therefore, this is a case where the very document, which the appellants lays store by, makes it unnecessary for us to search for any evidence to find out what is the purpose of giving the property. The Testator has made his motive clear. The argument of the appellants that the very same document refers to the fact that she has been given other properties towards her maintenance, does not, in our view, detract from the central question as to what impelled the Testator to create the life estate. The Will was executed on 10.05.1955 which is prior to the Hindu Succession Act unlike in the case of Sadhu Singh (supra). Obviously, such a Will could not have been executed anticipating the provisions of Section 14(2) of the Hindu Succession Act. R. Krishnammal was certainly entitled to maintenance and the bequest in question expressly refer to the purposes. The properties involved were not bequeathed to R. Krishnammal without her having any right at all. The Will did not purport to bequeath property by way of creating new rights in the facts of this case. Even the case of the appellants is that she was provided for maintenance by giving her other properties as indicated in the Will. If the argument of the appellants is to be accepted, we would have to consider whether what would be the quantum of maintenance which the Testator would consider appropriate. The extent of the other property is not shown. We would think that such an exercise is unnecessary when the terms of the Will indicate that the Testator intended that his widow should be able to maintain herself appropriately from the income of the properties he was bequeathing to her also, and for that purpose, created, no doubt what can be described as, a limited estate.

168Copy pinpoint168. In this regard, we may also notice that the following observations in C.Masilamani Mudaliar v. Idol of Sri Swaminathaswami73: 73 H AIR 1996 SC 1697

V. KALYANASWAMY (D) BY LRS. & ANR. v. 781 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

“30. Shri Rangam then contended that when the testator has thought of providing only maintenance to the two widows, the properties being more than 10 acres, the maintenance must be only proportionate to the needs of the widow and to that extent the widow acquires an absolute right but not the entire property. We find no force in that contention. It is to be seen that under the pre-existing law, she is entitled to remain in possession of the whole estate known as widow’s estate and after the Act has come into force that widow’s estate was blossomed into an absolute estate by operation of Section 14(1). Even in the Will Ex. A-1, no such restrictive covenant was engrafted giving reasonable proportion of income consistent with her needs for maintenance. C On the other hand, the express covenant is that, he recognised her right to maintenance and in lieu of the maintenance property was given to her for her maintenance during her lifetime. That is the pre-existing right as per then existing law. After the Act has come into force, the limited estate has blossomed into an absolute D estate. Therefore, the doctrine of proportionality of maintenance is not applicable and cannot be extended.”

169Copy pinpoint169. In such circumstances, we would think that the view taken by the High Court that Section 14(1) of the Hindu Succession Act applies, cannot be characterised as erroneous. E ‘POSSESSED’ OF IN SECTION 14(1) OF HINDU SUCCESSION ACT, THE PLEADING AS TO POSSESSION OF THE PLAINT SCHEDULE PROPERTY IN O.S. NO. 89/ 83 AND O.S. NO. 71/58 AND ITS IMPACT.

170Copy pinpoint170. In O.S. No. 89 of 1983, there is reference to the death of F Krishnammal on 30.04.1977 and that thereupon the plaintiff and defendants 1 to 3 have become entitled to possession. We further notice paragraph 5 wherein it is stated that the plaintiff and Defendants 1 to 3 (branch of Lakshmiah Naidu) were in possession of the properties and enjoyment thereof jointly. However, we further notice that in paragraph 21, it is alleged that the defendants 4 to 11 (branch of Lakshmiah Naidu) G are in possession without any title whatsoever, and that their possession is wrongful.

171Copy pinpoint171. If we revert backwards in point of time, we notice the following pleadings in O.S. No. 71 of 1958, the suit filed by H

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A R. Krishnammal, the widow. She would say that the properties described in Schedule-I, fell to the share of her husband in the partition and he has separate possession. The properties which were self-acquired by him were in Schedule-IA. Thereafter, she referred to the proceedings under Section 145. In paragraph-10, R.Krishnammal averred that the possession of the defendants in Schedule-I and IA is unlawful and that she is entitled B to succeed on either footing and recover possession of either Schedule- I and IA properties or moiety of the properties in Schedule-I, IA and II. There is a reference to a receiver appointed during the proceedings under Section 145. In paragraph 17, it is averred inter alia that the cause of action arose on or about June, 1955, when defendants 1 to 4 C unlawfully trespassed on the properties and on 16.04.1956, when Revenue Divisional Officer, Coimbatore upheld the possession of R.V. Lakshmiah Naidu and his sons. In the application under Order XXIII Rule 3 filed in O.S. No. 71 of 1958, it is inter alia stated as follows:- “Whereas on the death of Rangaswami Naidu on 01.06.1955, the executor could not take possession of the properties……..”

172Copy pinpoint172. In Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva and others74, a Bench of three learned Judges, interpreting the word ‘possessed’, laid down as follows: “11. … Of course, possession referred to in Section 14 need not be actual physical possession or personal occupation of the property by the Hindu female but may be possession in law. The possession of a licensee, lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purpose of F Section 14. The word “possessed” is used in Section 14 in a broad sense and in the context possession means the state of owning or having in one’s hands or power. It includes possession by receipt of rents and profits”. The learned Judges expressed the view that even if a trespasser were in possession of the land belonging to a female owner, it might conceivably be regarded as being in G possession of the female owner, provided the trespasser had not perfected his title. We do not think that it is necessary in the present case to go to the extent to which the learned Judges went. It is sufficient to say that “possessed” in Section 14 is used in a broad

74 H AIR 1959 SC 577

V. KALYANASWAMY (D) BY LRS. & ANR. v. 783 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

sense and in the context means the state of owning or having in A one’s hand or power. In the case of Gostha Behari v. Haridas Samanta [AIR 1957 Cal 557, 559] P.N. Mookherjee, J. expressed his opinion as to the meaning of the words “any property possessed by a female Hindu” in the following words: “The opening words in “property possessed by a female B Hindu” obviously mean that to come within the purview of the section the property must be in possession of the female concerned at the date of the commencement of the Act. They clearly contemplate the female’s possession when the Act came into force. That possession might have been either actual or constructive or in any form recognized by law, but unless the female Hindu, whose C limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word —possession” in its widest connotation, when the Act came into force, the section would not apply.” D In our opinion, the view expressed above is the correct view as to how the words “any property possessed by a female Hindu” should be interpreted. …” (Emphasis supplied)

173Copy pinpoint173. In Eramma (supra), this Court has made it clear that Section 14(1) of the Hindu Succession Act does not confer title on a mere E trespasser. It does not confer any right on a person possessing property without any vestige of title. We have made these remarks in the context of the following set of circumstances: Following the death of her husband on 01.06.1955, there are two streams providing right to make a claim over the property in favour of R. F Krishnammal, when the Hindu Succession Act came into force. Under the Will, she was conferred with a life estate. If the Will is treated as non-existent or invalid, then, again there can be two situations. Her case would fall to be covered either under Section 3(1) or 3(2) of the Hindu Women’s Right to Property Act, 1937 depending on whether the property G was separate property of V. Rangaswami Naidu or an interest in the Joint Hindu Family Property. She was also having a right to be maintained.Therefore, in the facts of this case in view of the finding that the properties bequeathed under the Will and which are the plaint scheduled properties are not the separate properties of Rangaswamy Naidu, She would have the right to the properties under Section 3(2) of H

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A the 1937 Act. This we observe for the reason that when the Hindu Succession Act came into force, R. Krishnammal had lost her tussle under the proceedings under Section 145 of the CrPC. We have also seen the nature of the pleading which she made in O.S. No. 71 of 1958. She specifically states it that she is entitled to recover possession of the property. No doubt, she does aver that she is entitled to treat herself as B in joint possession. We may however notice the decision in Kotturuswami case (supra), in fact, came to be considered by another three Judge Bench of this Court in Mangal Singh and Others v. Smt. Rattno (Dead) by her legal representatives and another reported in AIR 1967 SC

1786. Therein, this Court held as follows:- C “It was urged on behalf of the appellants that, in order to attract the provisions of S.14(1) of the Act, it must be shown that the female Hindu was either in actual physical possession, or constructive possession of the disputed property. On the other side, it was urged that even if a female Hindu be, in fact, out of D actual possession, the property must be held to be possessed by her, if her ownership rights in that property still exist and, in exercise of those ownership rights, she is capable of obtaining actual possession of it. It appears to us that, on the language used in S.14(1) of the Act, the latter interpretation must be accepted.” E Noticing Section 14 (1) of the Act and that it covered property possessed by a female Hindu whether acquired before or after the commencement of the Act the Court proceeded to explain the circumstances in which the decision in Kotturuswami case (supra) was rendered. And thereafter the Court laid down as follows:

F “…The Court was not laying down any general principle that S.14(1) will not be attracted at all to cases where the female Hindu was not possessed of the property at the date of the commencement of the Act. In fact, there are no words used in S.14(1) which would lead to the interpretation that the property must be possessed by the female Hindu at the date of the commencement of the Act. It appears to us that the relevant date on which the female Hindu should be possessed of the property in dispute, must be the date on which the question of applying the provisions of S.14(1) arises. If, on that date, when the provisions of this Section are sought to be applied, the property is possessed by a female Hindu, it would be held that she is full owner of it and

V. KALYANASWAMY (D) BY LRS. & ANR. v. 785 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

not merely a limited owner. Such a question may arise in her own lifetime, or may arise subsequently when succession to her property opens on her death. The case before us falls in the second category, because Smt. Harnam Kaur was a limited owner of the property before the commencement of the Act, and the question that has arisen is whether Smt. Rattno was entitled to succeed to her rights in this disputed property on her death which took place in the year 1958 after the commencement of the Act….” In fact, we notice that this decision was not referred to by the two Judge Bench which rendered the decision in Sadhu Singh (supra). However, we find that it has been adverted to in AIR 1996 SC 172 (see para 14) and a very recent judgment of this Court in Shyam Narayan C Sigh and Ors. vs. Rama Kant Singh and Ors. reported in 2018(1) RCR (Civil)981 rendered again by a Bench of two learned Judges. Therein, this Court held inter alia as follows: “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”. In view of the dicta in Mangal Singh (supra), we feel reassured of our view that Section 14(1) applies.

174Copy pinpoint174. Incidentally, we may notice what DW1, the witness on behalf of the appellants-legatees himself says: “..When Cr.PC 145 proceedings was conducted the properties were handed over to Latchumaiah and his sons by the receiver. From that onwards the properties are under their possession till today. We never being in the possession of the properties.” F CIVIL APPEAL NOS. 1045-1050 of 2013

175Copy pinpoint175. The appellants claim on the basis of sale deeds executed by A. Alagiriswami, who is the First Defendant in both the Suits. The case, which is sought to be set-up is that, there was a partition among the Legatees of the plaint schedule properties and the properties purchased G by them, was among the properties allotted to the First Defendant. Their entire case is based on A. Alagiriswami having rights in the property. We have already come to the conclusion that A. Alagiriswami has no rights, for the reasons which we have given. The arguments based on the compromise Decree in O.S. No. 71 of 1958, barring the Lakshmiah H

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A branch from questioning the partition or the Will, cannot be upheld. Insofar as we have held that R. Krishnammal had become the absolute owner under Section 14(1) of the Hindu Succession Act, and having regard to the compromise Decree in O.S. No. 71 of 1958 by which she had given- up all her rights in favour of the respondents, no right vested with A. Alagiriswami which he could have passed to the appellants. The plaintiffs in O.S. No. 649 of 1985, having sought a declaration of their right, and which they were entitled to. The contention that there was no challenge to the saledeeds, may not advance the case of the appellants. We have noticed what DW1,A. Alagiriswami, one of the Legatees has deposed regarding possession. In fact, as already noted, the appellants did not challenge the Decree of the Trial Court and they were apparently sailing along with the appellants who were the Legatees under the Will. We see, therefore, no merit in their case.

176Copy pinpoint176. In regard to the other Appeals, we do not find any merit in view of our findings and the issues which fell for consideration.There is no merit in any of the appeals. Consequently, all the appeals will stand dismissed. There will be no order as to costs.

Divya Pandey Appeals dismissed.