Badri Pershad Vs. Smt. Kanso Devi
 INSC 204 (26 August 1969)
26/08/1969 GROVER, A.N.
CITATION: 1970 AIR 1963 1970 SCR (2) 95 1970
SCC (1) 8
CITATOR INFO :
D 1976 SC2198 (6) RF 1977 SC1944 (68) RF 1979
SC 993 (3) RF 1987 SC2251 (5,6,7) D 1991 SC1581 (15)
Hindu Succession Act (30 of 1956), s. 14(1)
and (2)-Widow inheriting property under s. 3(1), Hindu Women's Rights to
Property Act (18 of 1937)-Award allotting her share before the coming into
force of the 1956-Act-Award describing her right as widow's estate-Whether
widow's rights governed by s. 14(1) or s. 14(2).
A Hindu, owning his self-acquired properties,
died in 1947 leaving five sons and a widow. In 1950, an arbitrator was
appointed for dividing the assets and liabilities among the heirs. The
arbitrator gave his award and a decree was passed in terms of the award. Under
the award, the widow was allotted her share of the properties and it was stated
that she was to have a widow's estate in those properties.
On the question whether, on the coming into.
force of the Hindu Succession Act, 1956, she became a full owner of the.
properties under s. 14(1) or only had a restricted estate in such properties
under s. 14(2).
HELD: The words 'possessed' and 'acquired' in
s. 14( 1 ) are used with the widest possible: meaning, so that, the
'possession' may be either actual or constructive and the 'acquisition' can be
in any manner whatsoever. Hence, where a female Hindu has a share in joint
properties which are later on partitioned by metes and bounds and she gets
possession of the properties allotted to her, before the coming into force of
the Hindu Succession Act, she was not only 'possessed' of that property at the
time of the coming into force of the Act but had also 'acquired' it before its
commencement. The mere fact that the partition was by means of an arbitration
award would not bring the matter within s. 14(2) as s. 14(1) had already become
fully applicable. Section 14(2) is in the nature of a proviso. or an exception
to s. 14(1) and comes into operation only if acquisition in any of the methods
indicated therein is made for the first time without there being any
preexisting right in the female Hindu to the property. [98 F--H; 99 A-C, F] In
the present case, the widow inherited the property under s. 3 (1 ) of the Hindu
Women's Rights to Property Act, 1937, and was therefore in 'possession' of it
within the meaning of that word in s. 14(1), and, when the award separated her
share by metes and bounds, she 'acquired' the property within the meaning of
that section. Therefore, she had become full owner of the property in her
possession under s. 14(1) on the coming into force of the Hindu Succession Act,
even though previously she: was a limited owner. [97 G--H; 98 D--E; 99 E--F]
Gummalapura Taggina Matada Kotturuswami v. Setra Veerayya,  Supp. 1
S.C.R. 968, Munnalal v. RaI Kumar  Supp. 3 S.C.R. 418 and Sukhram v.
Gauri Shankar,  1 S'.C.R. 476., followed.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1937 of 1966.
96 Appeal from the judgment and order dated
July 19, 1965 of the Punjab High Court, Circuit Bench at Delhi in Regular
Second Appeal No. 251-D of 1964.
S.T. Desai and I. N. Shroff, for the
S.V. Gupte, K.L. Mehta, Yogeshwar Dayal, M.M.
Kshatriya and G.S. Chatterjee, for the
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave from a judgment of the Punjab
High Court (Circuit Bench, Delhi).
The facts may be briefly stated: One Gajju
Mal had five sons, Badri Pershad, Ganesh Dass, Devi Chand, Narain Das and Ishar
Das. The first four were by his first wife, whereas the 5th son Ishar Das was
by his second wife Smt. Kanso Devi Gajju Mal died in 1947 leaving him surviving
the said five sons and Smt. Kanso Devi. On August 5, 1950 Tulsi Ram Seth was
,appointed by the parties as an arbitrator for resolving certain differences
which had arisen relating to partition of the urban immovable properties and
other assets and liabilities left by Gajju Mal. On October 31, 1950 the
arbitrator gave his award. Under clause 6 of this award Smt. Kanso Devi was
awarded three sets of property including bungalow No. 20, Alipore Road, Delhi.
The award was made the rule of the court. It was stated in the award that Smt.
Kanso Devi would have a widow's estate in the
properties awarded to her. It was also provided that the immovable properties
allotted and awarded to the various parties would be individually and
exclusively owned by them and each party would be entitled to take physical or
constructive possession of the properties allotted and awarded to his or her
Badri Pershad, the appellant before us, filed
a suit in August 1961 against the respondent Smt. Kanso Devi pleading inter
alia that she was a limited owner of the property which had been given to her
by the award and that she was trying to alienate the same and commit acts of
waste to the prejudice of the reversions. He asked for a perpetual injunction restraining
her from committing acts of waste and from alienating the suit properties. The
respondent contested the suit. On the pleas of the parties the trial court
framed seven issues out of which the material one was No. 4 which was in these
terms: , "Whether the defendant was 'awarded life estate only in the
property in suit .9,, On April 17, 1963 the trial court dismissed the suit
holding that no act of waste on the part of the respondent had been proved and
that she had inherited the property under the Hindu Women's Right to Property
Act, 1937 and that the award had simply separated her share by metes and
bounds, and under s. 14( 1 ) of the Hindu Succession Act she had become full owner
The first appellate court and the High Court
affirmed the decree of the trial court.
The sole question for determination is
whether the case of the' respondent was governed by sub-s. (1) or sub-s. (2) of
s. 14 of' the Hindu Succession Act, hereinafter called the Act. This section
14( 1 ) "Any property possessed by a
female Hindu, whether acquired before or after the commencement of this Act,
shall be held by her us 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 of 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 restricted estate in such property." According to the
appellant the suit property was 'acquired by the respondent under the award
given by Tulsi Ram Seth or' alternatively under the decree based on the award,
the estate being restricted by both the award and the decree.
The provision in the award that the
respondent was to have a widow's estate under Hindu Law, it is said, conferred
on her only a limited estate and sub-s. (1 ) would be inapplicable.
The position of the respondent throughout has
been that she had interest in all the joint properties together with the right
to partition under the provisions of Hindu Women's Right to Property Act, 1937
(Act XVIII of 1937). Thus the property was acquired by the respondent at a
partition within the terms of the Explanation to sub-s. (1 ) of s. 14.
As she was possessed of that property at the
time the Act came into force she became full owner thereof by virtue of s. 14(
1 ) of the Act even though previously she was a limited owner.
Under s. 3(1) of Act XVIII of 1937 as amended
by Act XI 193 8 when a Hindu governed by any School of Hindu law other 98 than
the Dayabhaga School died intestate leaving separate property his widow was entitled
to the same share as a son in respect ,of the property left by her husband.
Under s. 3 (2) when any such Hindu died having at the time of his death an
interest in a -Hindu Joint Family property his widow was to have the same
interest in the property as he himself had. Sub-s. (3 ) provided that any
interest devolving on a Hindu widow under the aforesaid provision was to be a
limited interest known as Hindu women's ,estate but that the widow was to have
the same right of claiming partition as a male owner.
The case in the courts below proceeded on the
footing that all the properties left by Gajju Mal were his separate
acquisitions. It was apparently for that reason that the High Court gave a
finding that before the partition effected by the arbitrator by means of the
award, the five sons and the widow (respondent) of Gajju Mal enjoyed equal
shares in the properties left by him.
The point for our consideration is narrowed
down to this.
When a female acquires an interest under the
provisions of Act XVIII of 1937 in the properties of her husband which are
subsequently separated by means of a partition does she become an absolute
owner under sub-s. (1 ) of s. 14 of the Act or does she get only a restricted
estate under sub-s.
(2) of that section ? The contention of the
learned counsel for the appellant is that the court should first look at sub-s.
(2) and if the case does not fall. within its ambit and, scope then alone
sub-s. (1 ) will become applicable.
This manner of reading of the section is not
warranted either on principle or authority. The section has to be read as a
whole 'and it would depend on the facts of each case whether the same is
covered by the first Sub-section or sub-s. (2). The -critical words in sub-s.
(1 ) are "possessed" and "acquired". The word
"possessed" has been used in its widest connotation and it may either
be actual or constructive or in any form recognised by law. In the context in
which it has been used in s. 14 it means the state of owning or having in one's
hand or power (see Gumrnalapura Taggina Matada Kotturuswami v. Setra Veerayya
& Ors.)(1). In S.S. Munna Lal v.S.S. Rajkumar & Ors.(2) it was held
that 1/4th share of a female which had been declared by the preliminary decree
passed before the enactment of the Act was possessed by her within the meaning
of s. 14 and she became the full owner so that on her death the said property
descended to her grandsons in accordance with the provisions of ss. 15 and 16
of the Act. The word "acquired" in sub-s. (1 ) has also to be given
the widest possible meaning. This would be so because of the language of the
Explanation which makes sub-s. (1 ) applicable to acquisition of property by
inheritance or devise or at a partition or in lieu of maintenance or arrears of
maintenance 99 or by gift or by a female's own skill or exertion or by purchase
or prescription or in any manner whatsoever.
Where at the commencement of the Act a female
Hindu has a share in joint properties which are later on partitioned by metes
and bounds and she gets possession of the properties allotted to her there can
be no manner of doubt that she is not only possessed of that property at the
time of the coming into force of the Act but has also acquired the same before
Sub-section (2) of s. 14 is more in the
nature of a proviso or an exception to sub-s. (1 ). It can come into operation
only if acquisition in any of the methods indicated therein is made for the
first time without there being any preexisting right in the female Hindu who is
in possession of the property. The Madras High Court was right in the
observations made in Rangaswami Naicker v. Chinnammal & Another(1) that
sub-s. (2) made it clear that the object of s. 14 was only to remove the
disability on women imposed by law and not to interfere with contracts, grams
or decrees etc. by virtue of which a women's right was restricted. In Sukhram
& Another v. Gauri Shankar & Another(2), one Kishan Devi had acquired
in 1952 the same interest in the property of the joint family which her husband
Hukan Singh had under the provisions of Act XVIII of 1937. The question arose,
whether after the coming into force of the Act she got rights of full ownership
and could alienate the properties in which she had acquired a limited interest
without the consent of the male members of the family. This Court decided that
she had become full owner by virtue of the provisions of s. 14(1) of the Act.
This case is quite apposite for our purpose and we must hold that the
respondent became a full owner of the suit properties when the Act came into
force. The mere fact that there was a partition by means of arbitration which
resulted in an award and a decree based on it would not bring the matter within
sub-s. (2) as the provisions of sub-s. (1) became fully applicable particularly
in view of the express terms of the Explanation.
This appeal fails and it is dismissed with
V.P.S. Appeal dismissed.
(1) A.I.R. 1964 Mad. 387. (2)  1 S.C.R.