Vs. The Authorised Officer and Assistant Commissioner  INSC 752 (3 July 1996)
Verma, K. Venkataswami K. Venkataswami,J.
appeal by special leave is preferred against the order of the Tamil Nadu Land
Reforms. Special Appellate Tribunal, Madras in T.R.P. No. 17 of 1994 dated 28 March, 1995.
Gounder died in the year 1949 leaving behind two wives, Nallammal and Periammal
and also a registered will dated 16.2.1948. The said Sellappa Gounder had a
daughter through Periammal by name Kuppammal. The appellant is the son of said Kuppammal,
As per the terms of the will, the properties set out thereunder will have to be
enjoyed by the widows in equal shares during their lifetime and if any one of
them pre-deceased, the survivor will enjoy the entirety. And after the death of
both, his daughter Kuppammal will enjoy for her life time and after her death
the children of Kuppammal will enjoy absolutely.
the second wife of the said Sellappa Gounder died in 1967. The provisions of
the Tamil Nadu Land Reforms (Reduction of Ceiling on Land) Act, 1970
(hereinafter referred to as "the Act") came into force on 15.2.1970.
The Authorities under the Act assumed that on the death of Periammal, Nellammal
succeeded to the entire estate by survivorship. Further treating the first wife
Nallammal as limited owner and thereby coming within the purview of 'owner'
under section 3(33) of the Principal Act, the authorities under the Act
declared an extent of 36.65 ordinary acres equivalent to 9.163 standard acres
out of 91.78 1/2 ordinary acres equivalent to 24.393 standard acres of land as
surplus. Aggrieved by that after exhausting the statutory remedies, the
appellant moved the High Court by filing Writ Petition No. 8824 of 1989 which
was transferred to the Special Appellate Tribunal (hereinafter referred to as
"the Tribunal) on the constitution of the same.
the Tribunal two contentions were raised. The first contention was that the
first wife Nallammal was only a limited owner and as per the will executed by
the deceased Sellappa Gounder and having regard to the intention of the
testator. it must be held that the estate will vest absolutely with the
children of Kuppammal and therefore, the provisions of the Act are not attracted.
This contention was not accepted by the Tribunal in view of Section 3(33) of
the Act which includes 'limited owner' also in the definition of 'owner'. The
next contention advanced before the Tribunal was that a dispute regarding the
title to the property in question has already been decided in favour of the
appellant, and therefore the proceedings taken under the Land Reforms Act
should be modified accordingly. This contention also was rejected by the
Tribunal holding that on date of coming into force of the Act on 15.2.1970,
there was no litigation pending regarding title and interest of Nallammal and
as such the subsequent proceedings cannot be taken note of. In the result the
Special Appellate Tribunal sustained the surplus declared under the Act. Aggrieved
by the order of the Tribunal. the present appeal has been filed.
us different arguments were addressed by the learned senior counsel Mr. Sivasubramanian
for the appellant. According to him after the coming into force of the Hindu
Succession tot 19.6, both the widows of Sellappa Gounder would get the
properties given to them under The will absolutely and as per the terms of the
will, they succeeded to the properties in equal shares without partition by
metes and bounds. That being the position, when the second wife died on
3.10.67, her undivided half share in the properties will go to her children and
the first wife will succeed only to the other half of the undivided share That
being the position, it is contended the authorities went wrong in proceeding as
if Nallammal and Permiammal were joint owners and on the death of Periammal, Nallammal
succeeded to the entire property by survivorship and it is contrary to the
terms of the will read with section 14(1) of the Hindu Succession Act.
Krishnamurthy, learned counsel appearing for the respondent State however
submitted that on the facts of this case, section 14(2) will apply and not
section 14(1). He also submitted that terms of the will only support the stand
taken by the authorities, namely, that Nallammal succeeded to the entire
property by survivorship. ;
appreciate the rival contentions, it is necessary to set out the terms of the
will as translated in English and filed in this Court. Relevant portion of the
will read as follows :
undermentioned properties having come to belong to me as of hereditary rights
shall be bequeathed to both individual nos.1 & 2, being my wives in equal
share after my lifetime and enjoy the same without subjecting the respective
property into any encumbrance till the life of both of you respectively. If one
of you were to pre-decease the other individual, the surviving individual shall
obtain the entire properties and enjoy the same without subjecting the
properties into any encumbrance and even granting that the same were to be
encumbered, the same would not be valid. After the life time of the individual
nos.1 and 2, the third individual aforesaid being my only daughter namely Kuppathal
shall obtain the properties and enjoy the same during her life time without
subjecting the same into any encumbrance or alienate." From the above
terms it is clear that on the death of the testator, the widows shall succeed
to the estate in equal shares for enjoyment of the same which means that they
succeeded to the properties as common owners and not as joint owners. If they
have succeeded to the properties as common owners then after the coming into
force of the Hindu Succession Act and in the light of section 14(1) and each
widow being in possession of the undivided half share, their respective share
enlarges into absolute one and they will be absolute owners of their respective
half share in the undivided estate left by the testator.
above being the position, Nallammal will be entitled to only half of the
properties given under the will on the death of Periammal and not the entire
properties as assumed by the authorities under the Ceiling Act. If Nallammal
succeeded only to half of the properties under the will, then on 15.2.1970,
which is not in dispute, she was not in a possession of any excess land and
therefore, the surplus declared on the assumption that she possessed of
properties in excess of ceiling limit cannot be sustained.
facts as found by the Tribunal below, there is nothing to show that Section 14(2)
of the Hindu Succession Act is attracted.
this view of the matter, the appeal has to be allowed and. accordingly, it is
allowed and the order of the Special Appellate Tribunal is set aside. No costs..
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