Mangal Singh & Ors Vs. Shrimati
Rattno & ANR  INSC 94 (6 April 1967)
06/04/1967 BHARGAVA, VISHISHTHA BHARGAVA,
VISHISHTHA WANCHOO, K.N.
CITATION: 1967 AIR 1786 1967 SCR (3) 454
CITATOR INFO :
RF 1977 SC1944 (32)
Hindu Succession Act (30 of 1956), s.
14-Hindu widow inheriting property from husband in 1917-Dispossessed by
husband's collaterals in 1954-Suit for recovery of possession filed by
her-During pendency of suit Act 30 of 1956 passed-S. 14 of Act conferring
rights of full ownership to women holding as limited owners in respect of
property "possessed by" them-Dispossessed owner whether possesses
property within meaning of section.
A Hindu widow in the Punjab came into
possession of her husband's land on his death in 1917. She continued in
possession till 1954 when on an application made by certain collaterals of her
late husband the Naib Tehsildar effected a mutation in favour of the
collaterals. On the basis of the Naib Tehsildar's order the collaterals dispossessed
the widow. She filed a suit for recovery of possession of the land. After the
institution of the suit the Hindu Succession Act, 1956, came into force. During
the pendency of the suit, in 1958, the widow died and her daughter was
substituted as legal representative. The defendants pleaded that the widow had
lost her right to the land because of her karewa marriage with one of the
collateral&,, and that the daughter could not succeed to the land as she
was not in possession of the land on the coming into force of the Hindu Succession
Act so as to become full owner of the land under s. 14 thereof. The trial court
dismissed the suit but the first appellate court decreed it, holding that there
was no karewa marriage as alleged by the defendants, and that s. 14 was
applicable to the case. The High Court dismissed the appeal filed by the
defendants who came to this court by special leave.
HELD : (i) The finding of fact by the first
appellate court that there was no karewa marriage was binding on the
defendants, and the High Court rightly accepted it. It was not open to the
defendants to challenge the finding in this Court. [457H] (ii) The use of the
expression "possessed by" instead of the expression "in
possession of" in s. 14(1) was intended to enlarge the meaning of this
expression to cover cases of ion in law. On the language of s. 14(1) the
provision will become applicable to any property which is owned by a female
Hindu even though she is not in actual physical or constructive possession of
the property. [459C-D; 460D] The section however will not apply to cases where
the Hindu female may have parted with her rights so as to place herself in a
position where she could in no manner exercise her rights in that property any
longer. [465C] On the facts of the case the plaintiff widow had acquired full
rights of ownership of the land under s 14 of the Hindu Succession Act. On her
death in 1958 the property passed to her daughter. The High. Court, rightly
dismissed the defendants, appeal. [465G] Gimmalapura Taggina Matada
Kotturuswami v. Setra Veerayya & Ors,  Supp. 1 S.C.R. 968 and
Brahmdeo Singh v. Deomani Missir C.A. No. 130/1960 dated 15-10-1962,
455 S. S. Munna Lal v. S. S. Rajkumar, 
Supp. 3 S.C.R.
418 and Eramma v. Veerupana, A.I.R. 1965 S.C.
Gaddam Venkayamma v. Gaddanz Veerayya, A.I.R.
1957 A.P. 280, Sansir Patelin & Anr. v. Satyabati Naikani & Anr. A.I.R.
1958 Orissa 75, Gajesh Mahanta v. Sukria
Bewa, A.I.R. 1963 Orissa 167, Hapak Singh v. Kailash Singh & Anr. A.I.R.
1958 Patna 581, Ram Gulam Singh v. Palakdhari Singh, A.I.R. 1961 Patna 60.'
Nathuni Prasad Singh v. Mst. Kachnar Kuer, A.I.R.
1965 Patna 160 and Mst. Mukhtiar Kaur v. Mst.
Kartar Kaur & Ors., A.I.R. 1966 Pun. 31, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 51 of 1964.
Appeal by special leave from the judgment and
decree dated January 3, 1962 of the Punjab High Court in Regular Second Appeal
No. 1958 of 1959.
Bishan Narain and Sadhu Singh, for the
J. P. Goyal and Raghunath Singh, for
respondents Nos. 1 (a) to 1 (d).
The Judgment of the Court was delivered by Bhargava,
J. This appeal arises out of a suit brought for possession of some land which
was admittedly owned at one time by one Labhu. Labhu died in the year 1917 and,
on his death his widow, Smt. Harnam Kaur, who filed the suit as plaintiff, came
into possession of the land. She continued in possession of the land until the
year 1954 when, on an application made by the collaterals of Labhu, the Naib
Tehsildar, by his order dated 26th June, 1954, effected mutation in favour of
these collaterals. These collaterals were defendants 1 to 4, Mangal Singh, Amer
Singh, Santa Singh and Ishar Singh. These collaterals, on the basis of the
order of the Naib Tehsildar, dispossessed Smt. Harnam Kaur. Harnam Kaur's
appeal against the order of the Naib Tehsildar was dismissed by the Collector.
The claim of these collaterals was that Smt. Harnam Kaur had entered into
karewa marriage with one of these collaterals, Ishar Singh. defendant No. 4
and, consequently, she had lost her right to hold the land of her first husband
Labhu. Smt. Harnam Kaur denied that she had entered into any karewa marriage
with Ishar Singh and, on the basis of this denial, instituted the suit claiming
possession of that land. She pleaded that the four defendants had no right to
this land and had wrongfully dispossessed her, so that they were mere
trespassers. This suit was instituted on 1st March, 1956.
After the institution of the suit, the Hindu
Succession Act, 1956 (No. 30 of 1956) hereinafter referred to as "the
Act" came into force on 17th June, 1956. The suit was, at that time,
pending and it continued to remain pending until the year 1958 when Smt. Harnam
Kaur died. Thereupon, Smt.
Rattno applied to be substituted as plaintiff
in place of Smt. Harnam Kaur as her legal representative. This application was
allowed,, though 456 it was opposed by defendants 1 to 3. In the trial of the
suit defendants 1 to 3 took the plea that Smt. Harnam Kaur, the original
plaintiff, had lost her right to the land because of her karewa marriage with
Ishar Singh, defendant No. 4. Defendant No. 4, however, admitted the claim of
Hamarn Kaur in his written statement, denied
that he had dispossessed her and also denied the allegation of her karewa
marriage with him. In these circumstances, two main questions came up for
decision by the trial court. The first question was whether Smt. Hamam Kaur had
entered into a karewa marriage with Ishar Singh, defendant No. 4, so as to lose
her right to the disputed land as widow of the previous mal e owner, Labhu ?
The second question that arose was whether Smt. Rattno, who was substituted as
the legal representative of Smt. Hamam Kaur, was entitled to succeed to the
property of Smt. Hamam Kaur ? This second question depended on whether Smt.
Harnam Kaur had, or had not, become full owner of the land under S. 14 of the
Act. The trial court held that Smt. Hamam Kaur had contracted karewa marriage with
Ishar Singh, defendant No. 4, and had lost her rights. The further finding of
the trial court was that Smt. Hamam Kaur had been dispossessed before the Act
came into force and, consequently, s. 14 of the Act did not apply, with the
result that Smt. Rattno could not claim succession to Smt. Hamam Kaur under
that provision of law.
On these findings, the trial court dismissed
On appeal, the Additional District Judge,
Patiala, recorded the finding that Smt. Hamam Kaur had not entered into karewa
marriage with Ishar Singh, defendant No. 4, and, further, that s. 14 of the Act
was applicable to the present case, as the land in suit was possessed by Smt.
Harnam Kaur so as to make her full owner of this land under that provision of
law. On these findings, the first appellate Court decreed the suit against
defendants 1 to 3 with costs in both courts, after making a comment that Ishar
Singh , defendant No. 4, was a profoma defendant. Defendants 1 to 3, thereupon,
came up in second appeal to-the High Court of Punjab and impleaded as
respondents Smt. Rattno as well as Ishar Singh. The High Court dismissed the
appeal and, thereupon, defendants 1 to 3 have come up to this Court in appeal
under special leave granted to them. In this appeal also, defendants 1 to 3
impleaded both Smt. Rattno and Ishar Singh as respondents.
During the pendency of this appeal, one of
the defendants- appellants died and his legal representatives were brought on
the record as appellants. Smt. Rattno also died and her legal representatives
were impleaded as respondents.
Further, Ishar Singh,. defendant No. 4, who
was a respondent in this appeal, also died. The application to bring his legal
representatives on record was dismissed by the order of this Court dated 14th
September, 1965 457 in Civil Miscellaneous Petition No. 1589 of 1965. In view
of this order, a preliminary objection was raised at the time of hearing of
this appeal by learned counsel for the respondents, who had been impleaded as
legal representatives of Smt. Rattno, that the appeal had abated on account of
the failure of the appellants to implead the legal representatives of Ishar
Singh respondent. It, however, appears that, on the pleadings of parties and
the nature of the dispute that came to be settled by the lower courts, it
cannot be held that this appeal must abate as a whole, or must fail because of
its abatement against Ishar Singh on his death. We have already mentioned that,
though the plaintiff, Smt. Harnam Kaur, had come forward with the allegation
that she had been dispossessed by all the four defendants 1 to 4, Ishar Singh,
defendant No. 4, in his written statement, repudiated this claim. He put
forward the plea that he had not dispossessed the plaintiff and, further,
supported the claim of the plaintiff by pleading that there had been no karewa
marriage between them. -'The suit was dismissed by the trial court. It was
decreed by the first appellate Court only against defendants 1 to 3, treating
Ishar Singh as a profoma defendant. In these circumstances, it is obvious that,
when the case came up before the High Court, the dispute was confined between
Rattno, legal representative of the original
plaintiff on the one side, and defendants 1 to 3 on the other.
Defendants 1 to 3 sought vacation of the
decree for possession which had been granted against them in favour of Smt.
Rattno. lshar Singh, against whom the suit had not been decreed at all, thus
became an unnecessary party. In these circumstances even if Ishar Singh had not
been impleaded as respondent in the High Court, the relief claimed by
defendants 1 to 3 in that Court against Smt.
Rattno could have been granted, without
bringing into effect any contradictory decrees. In the appeal in this Court
also, in these circumstances, Ishar Singh was an unnecessary party and,
consequently, the failure to implead his legal representatives as respondents
in the appeal after his death does not affect the right of defendants 1 to 3 to
claim the relief for which they have come up to this Court in appeal.
The preliminary objection, therefore, fails
and is rejected.
On merits, we are of the opinion that the
decision given by the High Court against the defendant-appellants must be
upheld. The first appellate Court, which was the final Court for deciding
question of fact, clearly recorded a finding that the karewa marriage alleged
to have been entered into by the plaintiff, Smt. Harnam Kaur, with Ishar Singh,
defendant No. 4, was not proved. That finding of fact was binding on the High
Court and was rightly accepted by it. It is no longer open to the appellants to
challenge that finding of fact in this Court. On this finding, it has to be
held that the rights to the land, to which Smt. Hamam Kaur had succeeded as
widow of Labhu, were not lost by her 458 until her death, and that her
dispossession by defendants 1 to 3 in the year 1954 was illegal. They had no
right to this land in' preference to Smt. Hamam Kaur.
It was, however, urged on behalf of the
appellants that, when Smt. Hamam Kaur died, she was not in actual possession of
this land. She had been dispossessed in the year 1954 and, at the time of her
death in 1958, this suit instituted by her for possession of that land was
still pending. In the suit, her own pleading was there that the land was in
actual possession of defendants 1 to 3 as trespassers, and, in such
circumstances, it should be held that the land was not possessed by Smt. Hamam
Kaur at any time after the Act came into force, so that S. 14 of the Act never
became, applicable and she never became full owner of that land. It may be
mentioned that there was no dispute in the High Court, nor was it disputed
before us that, if it be held that S. 14 of the Act had become applicable and
Smt. Hamam Kaur became full owner of this land, her rights would pass on her
death to Smt. Rattno and, subsequently, on the latter's death, to the present
respondents in this appeal.
The only question for decision in this
appeal, therefore, is whether it can be held that this property was possessed
by Smt. Harnam Kaur as envisaged by S. 14 of the Act, so that she became full
owner of this land.
Section 14(1) of the Act is as follows
"14. (1) Any property possessed by a female Hindu, whether acquired before
or after the commencement of this Act, shall be held by her as full owner
thereof and not as a limited owner.
Explanation.-In this sub-section,
"property" includes both movable and immovable;
"property, acquired" 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." The dispute in
the case has arisen, because this section confers the right of full ownership
on a Hindu female only in respect of property possessed by her, whether
acquired before or after the commencement of the Act; and, in the present case,
admittedly, the plaintiff had been dispossessed in the year 1954 and was not
able to recover possession from the defendants-apppellants until her death in
the year 1958. 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 459 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 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.
It is significant that the Legislature begins
s. 14(1) with the words "any property possessed by a female Hindu"
and not "any property in possession of a female Hindu". If the
expression used had been "in possession of" instead of
"possessed by", the proper interpretation would probably have been to
hold that, in order to apply this provision, the property must be such as is
either in actual possession of the female Hindu or in her constructive
possession. The constructive possession may be through a lessee. mortgagee,
licensee, etc. The use of the expression "possessed by" instead of
the expression "in possession of', in our opinion, was intended to enlarge
the meaning of this expression. It is commonly known in English language that a
property is said to be possessed by a person, if he is its owner, even though
he may, for the time being, be out of actual possession or even constructive
possession. The expression "possessed by" is quite frequently used in
testamentary documents, where the method of expressing the property, which is
to pass to the legate, often adopted is to say that "all property I die
possessed of shall pass to........... In such documents, wills, etc., where
this language is used, it is clear that whatever rights the testator had in the
property would pass to the legate, even though, at the time when the will is
executed or when the will becomes effective, the testator might not be in
actual, physical or constructive possession of it. The legate will, in such a
case, succeed to the right to recover possession of that property in the same
manner in which the testator could have done. Stroud in his Judicial Dictionary
of Words and Phrases, Vol. 3, at p. 2238, has brought out this aspect when
defining the scope of the words "possess" and "Possessed".
When dealing with the meaning of the word "possession", Stroud
defines " possession" as being in two ways, either actual possession
or possession in law. He goes on to say that "actual possession is when a
man enters in deed into lands or tenements to him descended, or otherwise.
Possession in law is when lands or tenements are descended to a man, and he has
not as yet really, actually, and in deed, entered into them." In Wharton's
Law Lexicon, 14th Edn., at p. 777, the word "possession" is defined
as being equivalent to 'the state of owning or having a thing in one's own
hands or power." Thus, three different meanings are given; one is the
state of owning, the second is having a thing in one's own bands, and the third
is having a thing in one's own 460 power. In case where property is in actual
physical possession, obviously it would be in one's own hands. If it is in
constructive possession, it would be in one's own power. Then, there is the
third case where there may not be actual, physical or constructive possession
and, yet, the person still possesses the right to recover actual physical
possession or constructive possession; that would be a case covered by the
expression "the state of owning". In fact, elaborating further the
meaning of the word "possession', Wharton goes on to say that "it is
either actual, where a person enters into lands or tenements descended or
conveyed to him; apparent, which is a species of presumptive title where land
descended to the heir of an abator, intruder, or disseisor, who died seised; in
law, when lands, etc., have descended to a man, and he has not actuary entered
into them, or naked, that is, more possession, without colour of right."
It appears to us that the expression used in s.
14(1) of the Act was intended to cover cases
of possession in law also, where lands may have descended to a female Hindu and
she has not actually entered into them. It would of course, cover the other
cases of actual or constructive possession. On the language of s. 14(1),
therefore, we hold that this prorovision will become applicable to any property
which is owned by a female Hindu, even though she is not in actual, physical or
constructive possession of that property.
Section 14(1) came up for interpretation in
various cases before a number of High Courts, and was considered by this Court
also in several cases. In none of those cases, however, did the question
directly arise as to whether s.
14(1) will be applicable, if the female Hindu
is out of actual, physical or constructive possession and the property happens
to have been wrongfully taken into possession by a trespasser. Most of those cases
were cases where the female Hindu had either alienated her rights by a, deed of
transfer or had made a gift, and it was only incidentally; that, in some of
those cases, comments were made on the question whether s. 14(1) of the Act
will be attracted or not in cases the female Hindu bad been dispossessed by a
So far as this Court is concerned, the
earliest case is that of Gummalpura Taggina Matada Kotturuswami v. Setra
Veeravva and others(1). Dealing with the scope of S. 14(1) of the Act in that
case, this Court cited from a decision of Viswanatha Sastri, J. in Gaddam
Venkavamma v. Gaddam Veerayya (2) , and noticed the fact that in that case it
was held that the word "possessed" is used in s. 14 in a broad sense
and, in the context, possession means the state of owning or having in one's
bands or power. It was -also noticed that the learned Judges of the Andhra
Pradesh High Court in that case had expressed the view that even if a
trespasser were in possession of the land belonging to a female (1) 
Supp. 1 S.C.R. 968.
(2) A. I.R. 1957 A.P. 280.
461 owner, it might conceivably be regarded
as being in possession of the female owner, provided the trespasser had not
perfected his, title. Since in that case this Court was not concerned with a
situation where a trespasser had actually dispossessed the female owner, the
Court went on to hold: "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 s. 14 is used in a broad sense and, in the context,
means the state of owning or having in one's hand or power." Thus, in that
case decided by this Court, the broad meaning of the word "possessed' was
accepted as even including cases where the state of owning the property exists.
Learned counsel for the appellants, when bringing to our notice the views
expressed by this Court in that case, also drew our attention to another part
of the judgment, where this Court remarked: "Reference to property acquired
before the commencement of the Act certainly makes the provisions of the
section retrospective, but even in such a case, the property must be possessed
by a, female Hindu at the time the Act came into force in order to make the
provisions of the section applicable. There is no question in the present case
that Veerawa acquired the property of her deceased husband before the
commencement of the Act. In order that the provisions of s. 14 may apply to the
present case, it will have to be further established that the property was
possessed by her at the time the Act came into force." Learned counsel,
from these words, tried to draw an inference that this Court had laid down that
s. 14(1) will only apply to cases where the property was possessed by the Hindu
female at the commencement of the Act. We do not think that any such
interpretation can be placed on the words used by this Court. Section 14(1)
covers any property possessed by a female Hindu, whether acquired before or
after the commencement of the Act. On the face of it, property acquired after
the commencement of the Act by a female Hindu could not possibly be possessed
by her at the commencement of the Act. This Court, when it made the comments
relied upon by learned counsel, was, in fact, concerned with a case of a female
Hindu, who had acquired the right to the property before the commencement of
the Act, but was alleged to be no longer possessed of it because of having
adopted a son before the commencement of the Act.
It was in these circumstances that the Court
in that particular case was concerned with the question whether the female
Hindu was possessed of the property in dispute or not at the time the Act came
into force. 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 462
-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 not merely a limited owner. Such a question may arise in her
own life- time 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.
The next case in which s. 14 was considered
by this Court was Brahmdeo Singh and Another v. Deomani Missir and Others(1) In
that case, the female Hindu, who had succeeded to the property as the widow of
her husband, Ramdeo Singh, had transferred the property under two sale-deeds.
It was held that the sale-deeds were not for legal necessity; and the question
arose whether, in those circumstances, when the Act came into force, it could
be held that the widow was possessed of that property. This Court, after citing
the judgment in the case of Gummalapura Taggina Matada Kotturuswami(2) held that
the conflict of judicial opinion -on this question had already been resolved in
that earlier case, where the Court had observed : "The provisions in S.
14 of the Act were not intended to benefit
alienees who, with their eyes open, purchased the property from a limited owner
without justifying necessity before the Act came into force and at a time when
the vendor had only a limited interest of a Hindu woman." The ;Court
further dealt with the contention that the possession of the a lienees is the
possession of the widow herself who is still alive, and held : "We are
unable to accept this contention as correct. It is well settled that an
alienation made by a widow or other limited heir of property inherited by her,
without legal necessity and without the consent of the next reversioners,
though not binding on the reversioners, is, nevertheless, binding on her so as
to pass her own interest (i.e. life interest) to the alienee." It was,
thus, made clear in that case that the property was held not to be possessed by
the widow, because, the alienation made by her being binding on her, she had no
longer any legal right left in that property even in the sense of being in the
state of owning it. The case, thus, explains why, in cases of alienation or a
gift made by a widow, even though that alienation or gift may not be bind- (1)
Civil Appeal No. 130 of 1960 decided on October 15, 1962.
(2)  Supp. 1 S.C.R. 968.
463 ing on a reversioner, the property will
not be held to be possessed by the widow, because the alienation or the gift
would be binding on her for her life-time and she, at least, would not possess
any such rights under which she could obtain actual or constructive possession
from her transferee or donee. Having completely partted with her legal rights
in the property, she could not be said to be possessed of that property any
The third case of this Court brought to our
notice is that of S. S. Minna Lal v. S. S. Rajkumar and Others(1). In that
case, a Digamber Jain of the Porwal sect died in 1934 leaving behind his widow,
his son and three grand-sons. His son died in 1939. In 1952, a son of one of
the grandsons filed a suit for partition of the joint family properties, while
the widow was still alive. While the suit was still pending, the widow died.
Amongst other questions arising in the partition suit, one question that arose
was whether the 1/4th share of the widow declared in the preliminary decree was
possessed by her and whether, on her death, it descended to her grandsons in
accordance with the provisions of sections 15 and 16 of the Act. Dealing with
this question, this Court explained the scope of s. 14(1) by stating that, by
s. 14(1), the Legislature sought to convert the interest of a Hindu female
which, under the Sastric Hindu law, would have been regarded as a limited
interest into an absolute interest. It was held that, by S. 14(1), manifestly,
it was intended to convert the interest, which a Hindu female has in property,
however restricted the nature of that interest under the Sastric Hindu law may
be, into absolute estate.
It was also noticed that "under the
Sastric Hindu law, the share given to a Hindu widow on partition between her
sons or her grandsons was in lieu of her right to maintenance, and she was not
entitled to claim partition. But the Legislature, by enacting the Hindu Women's
Right to Property Act, 1937, made a significant departure in that branch of the
law; the Act gave a Hindu widow the same interest in the property which her
husband had at the time of his death, and if the estate was partitioned, she
became owner in severalty of her share, subject, of course, to the restrictions
on disposition and the peculiar rule of extinction of the estate on death
actual or civil." Applying these principles to the facts of that case, it
was remarked : "In the light of the scheme of the Act and its avowed
purpose, it would be difficult, without doing violence to the language used in
the enactment, to assume that a right declared in property in favour of a
person under a decree for partition is not a right to property. If, under a
preliminary decree, the right in favour of a Hindu male be regarded as
property, the right declared in favour of a Hindu female must also be regarded
as property. The High Court was, therefore, in our judgment, in error in
holding that the right declared in favour of Khilonabai (1)  Supp. 3
464 was not possessed by her, nor are we able
to agree with the submission of the learned counsel for Rajkumar that it was
not property within the meaning of S. 14 of the Act." In that case, it
will be noticed that the widow died, while the suit for partition was still
pending, and she was not in actual, physical or constructive possession of the
property which was held to be possessed by her at the time of her death. Only a
preliminary decree declaring her right to the share had been passed. That
decree was passed before the Act came into force and the widow died after the
Act came into force. On these facts, the Court came to the finding that the
disputed property was possessed by the widow; and this finding was given
despite the circumstance that she was not in actual possession or constructive
possession of the property, but had merely obtained the right to the property
under the preliminary decree. The principle laid down in that case, thus,
supports the broader meaning given to the expression "possessed by"
indicated by us earlier.
The last case of this Court brought to our
notice is Eramma v. Veerupana and Others(1). That was a converse case in which
the female Hindu, in fact, did not possess any legal right or title to the
property, though she was actually in physical possession of it. It was held:
"The property possessed by a female Hindu, as contemplated in the section,
is clearly property to which she has acquired some kind of title, whether
before or after the commencement of the Act.
It may be noticed that the Explanation to s.
14(1) sets out the various modes of acquisition of the property by a female
Hindu and indicated that the section applies only to property to which the
female Hindu has acquired some kind of title, however restricted the nature of
her interest may be.
The words "as full owner thereof and not
as a limited owner" as given in the last portion of sub-section (1) of s.
14 clearly suggest that the legislature intended that the limited ownership of
a Hindu female should be changed into full ownership. In other words, s. 14 (1)
of the Act contemplates that a Hindu female who, in the absence of this
provision, would have been limited owner of the property, will now become full
owner of the same by virtue of this section. The object of the section is to
extinguish the estate called "limited estate" or "widow's
estate" in Hindu Law and to make a Hindu woman, who, under the old law, would
have been only a limited owner, a full owner of the property with all powers of
disposition and to make the estate heritable by her own heirs and not
revertible to the heirs of the last male holder." In the concluding part,
it was held : "It follows, therefore, that the section cannot be
interpreted so as to validate the illegal possession of a female Hindu and it
does not confer any title on a mere trespasser. In other words, the provisions
of s. 14(1) of the Act cannot be attracted in the case of a Hindu female who is
in possession of the property (1) A.I.R. 1966 S.C. 1879.
465 of the last male holder on the date of
the commencement of the Act when she is only a trespasser without any right to
property." This case also, thus, clarifies that the expression
"possessed by" is not intended to apply to a case of mere possession
without title, and that the legislature intended this provision for cases where
the Hindu female possesses the right of ownership of the property in question.
Even mere physical possession of the property without the right of ownership
will not attract the provisions of this section. This case also, thus, supports
our view that the expression "possessed by" was used in the sense of
connoting state of ownership and, while the Hindu female possesses the rights
of ownership, she would become full owner if the other conditions mentioned in
the section are fulfilled. The section will, however, not apply at all to cases
where the Hindu female may have parted with her rights so as to place herself
in a position where she could, in no manner, exercise her rights of ownership
in that property any longer.
In this view that we have taken, it does not
appear to be necessary for us to refer to the decisions of the various High
Courts which were cited before us by learned counsel for the appellants. The
cases mentioned were : Sansir Patelin and Another v. Satyabatt Naikani and
Ganesh Mahanta and Others v. Sukria Bewa and
Harak Singh v. Kailash Singh and Another(3);
Ram Gulam Singh and others v. Palakdhari Singh and others(4) ; Nathuni Prasad
Singh and Another v. Mst. Kachnar Kuer & Others(5);
and Mst. Mukhtiar Kaur v. Mst. Kartar Kaur
All these were cases relating to situations
where the widow had made some alienation of her rights in the property and none
of them was concerned with a case where the female Hindu might have been
dispossessed by a trespasser. The reasons given by the High Courts in those
cases are, therefore, of no assistance in deciding the applicability of S.
14(1) of the Act to a case of the nature before us.
On the interpretation of S. 14(1) of the Act
that we have accepted above, it must be held that the property involved in the
present suit was possessed by Smt. Harnam Kaur when she died in the year 1958
and, consequently, Smt. Rattno and, after her, the present respondents must be
deemed to have succeeded to those rights. We have already mentioned above that
it was not disputed that, if it is held that Smt.
Hamam Kaur had become full owner of this
property, it would pass on her death to Smt. Rattno. As a result, the decision
given by the High Court must be upheld. The appeal is dismissed with costs.
(1) A.I.R. 1958 Orissa 75.
(3) A.I.R. 1958 Patna 581.
(5) A.I.R. 1965 Patna 160.
(2) A.I.R. 1963 Orissa 167.
(4) A.T.R. 1961 Patna 60.
(6) A.I.R. 1966 Pun. 3 1.