and Others Vs. Saraswathibai and Another  Insc 1162 (20 November 2007)
Sinha & Harjit Singh Bedi
OUT OF SLP (C) NO. 5437 OF 2006 S.B. SINHA, J.
Application of Section 14(1) of the Hindu Succession Act, 1956 (hereinafter
referred to as the Act) calls for consideration in this appeal which
arises out of a judgment and order dated 15th November, 2005 passed by a learned Single Judge of
the Karnataka High Court at Bangalore in
Regular Second Appeal No. 276 of 2003.
short factual matrix involved may be noticed at the threshold.
the said purpose, we may notice the genealogy of the family.
(Dead) S/o. Hanumanthappa Patil Trimukhrao (Died in 1957) Manikappa (Dead) =
1st wife Sundari Bai (Died on 16.10.1992) =2nd wife Kashibai (D-4)
______________________ | | Saraswathi Sharadabai (P-1) (P-2)
_____________________________________________________ | | | | | Shantabai Mallikarjun
Jagadevi Mallamma Neelamma Neelamma (Died in 1987) = wife K Kamalabai (D-3) |
____________________________ | | Santosh Satish (D-1) (D-2)
Original Suit bearing No. 34 of 1964 was filed by Sundrabai, first wife of Trimukhrao
(respondent No.1 herein) against Mallikarjun (since deceased) and Kashibai
(defendant No.4 therein). A consent decree was passed in that suit, the
relevant clauses whereof were as under :-
plaintiff and the defendant no.2 are the wives of deceased Trimbakrao. The
defendant No.1 is the son of Trimbakrao. The plaintiff Sundrabai and Mallikarjun
and his mother Kashibai resides separately.
That as per compromise the land Sy. No.73 Kh. No.145 to the extent of measuring
6 acres 33 gunatas. R.A. Rs.9.00 situated at Khandala, on north side bounded in
the east the land of Shivalingappa Biradar in the west public way. In the north the land of Shankarappa in
the south remain land Sy. No.73, was given to the plaintiff for her
maintenance. She is in possession of that portion of land since 5/6 years. The
defendants will not interfere and obstruct in the peaceful possession of that
portion of land which was given to the plaintiff for her maintenance, till her
defendants No.1 and 2 will remain in possession of remaining half portion of
land Sy.No.73 on south side as owner. The plaintiff will not alienate (through
gift or sale) land which was given for her maintenance.
That after the death of the plaintiff the land given to her will be reversed to
the defendant No.1 and 2. The parties will bear their costs of the
cost. 6. Mallikarjun died in the year 1987. Sundrabai died in 1992.
herein who are heirs and legal representatives of Sundrabai filed Original Suit
No.210 of 1993 claiming the said land admeasuring 6 Acres 33 guntas from the
Northern side of Survey No. 73 on the ground that she had become owner thereof
in terms of Section 14(1) of the Act. Appellants who were arrayed in the suit
as defendants inter alia contended that Sundrabai was not the absolute owner of
the said property having been allotted to her by reason of the consent decree.
It was furthermore contended that the land in suit was allotted to her by way
of maintenance which she could keep in possession only during her life time
and, therefore, Section 14(2) of the Act and not Section 14(1) of the Act would
said suit was dismissed on the premise that the plaintiffs were not the owners
and were not in possession of the suit property.
an appeal having been preferred thereagainst, the Principal District Judge Bidar
by his judgment and order dated 2nd January, 2003 allowed the said appeal opining that Section 14(1) of the
Act being applicable, the plaintiffs became the owners of the suit property.
reason of the impugned judgment the second appeal preferred by the appellants
has been dismissed.
Solashe, learned counsel appearing on behalf of the appellants, in support of
this appeal inter alia would submit that the High Court committed a serious
error of law in so far as it failed to take into consideration that Sundrabai
on partition could not have been allotted 6 Acres 33 guntas of land and in that
view of the matter, although the land which could fall in her share would be
covered by Section 14(1) of the Act, but according to the learned counsel the
share of Sundrabai in the joint family being 7/24 in the total land of joint
family being 12 acres 33 guntas, share of Sundrabai would come only to 3 acres
29 guntas. It was submitted that the word possessed contained in
Section 14 (1) of the Act must be construed to mean ownership as has been held
by this Court in  Supp. 1 SCR 968 : Gummalapura Taggina Matada Kotturuswami
vs. Setra Veeravva and others.
Mr. Patil, learned counsel appearing on behalf of the respondents, on the other
hand, would support the judgment. It was moreover contended that there is
nothing on record to show that the total agricultural lands belonging to the
joint family was only to the extent of 12 acres 33 guntas. In fact, Mr. Patil
would urge that there were other properties of the joint family besides, the
Sub-sections (1) and (2) of Section 14 of the Act reads as under:- 14.
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
Explanation In this sub-section,
property includes both moveable 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 the 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
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
Gummalapura Taggina Matada (supra) on which reliance has been placed by the
learned counsel, this Court held that Section 14(1) of the Act has wide
application. It not only takes within its sweep a land which was not only in
possession of the female Hindu but also covers the land over which she has a
right to possess stating:- 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 section 14.
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
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 sense and in the context
means the state of owning or having in one's hand or power. In the case of Gostha
Behari v. Haridas Samanta, 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 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 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 widest
connotation, when the Act came into force, the section would not apply."
also (2005) 5 SCC 390 : Shakuntla Devi vs. Kamla and others and 2006 (13) SCALE
408 : Chandrika Singh (D) by L.Rs vs. Sarjug Singh and another.
possession in respect of 6 acres 33 guntas of land even prior to the
institution of the suit has been accepted in the said consent decree. Appellants
herein undertook not to interfere in her peaceful possession thereover.
Admittedly after the death of Trmukhrao who died after coming into force of the
Act, Sundrabai became one of the co-owners of the property being one of his
wives who had half share in the joint properties. Succession thereof was
governed by Sections 6, 8 and 12 of the Act. It is, therefore, not a case where
she had no right to possess the said land. If she had a right to possess the
said land as a co-owner, the question of divesting her of the said right by
invoking sub-section (2) of Section 14 of the Act would not arise.
The stipulations made in the consent decree dated 20th July, 1964 must thus be construed having regard to the well settled
legal position. It is now a well settled principle of law that in considering a
deed, the legal position obtaining in this behalf should be kept in mind.
Legal position in regard to the right of a female Hindu was laid down by this
Court in (1977) 3 SCC 99 : V. Tulasamma and others vs. Sesha Reddy (dead) by L.Rs.,
wherein the legal consequences were summarized as under :- (1) The Hindu
females 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 h usband 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 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.
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.
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.
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
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 females limited interest would
automatically be enlarged into an absolute one by force of Section 14(1) and
the restrictions placed, if any, under the document would have to be ignored.
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
p laced on the powers of the transferee.
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).
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.
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
Nazar Singh and others vs. Jagjit Kaur and others : (1996) 1 SCC 35, this Court
following Tulasamma (supra) held as under :- The principles enunciated in
this decision have been reiterated in a number of decisions later but have
never been departed from. According to this decision, Sub- section (2) is
confined to cases where property is acquired by a female Hindu for the first
time as a grant without any pre-existing right under a gift, will, instrument,
decree, order or award, the terms of which prescribe a restricted estate in the
property. It has also been held that where the property is acquired by a Hindu
female in lieu of right of maintenance inter alia, it is in virtue of a
pre-existing right and such an acquisition would not be within the scope and
ambit of Sub-section (2) even if the instrument, decree, order or award
allotting the property to her prescribes a restricted estate in the property.
Applying this principle, it must be held that the suit lands, which were given
to Harmel Kaur by Gurdial Singh in lieu of her maintenance, were held by Harmel
Kaur as full owner thereof and not as a limited owner notwithstanding the
several restrictive covenants accompanying the grant. (Also see the recent
decision of this Court in Mangat Mal v. Punni Devi where a right to residence
in a house property was held to attract Sub- section (1) of Section 14
notwithstanding the fact that the grant expressly conferred only a limited
estate upon her.) According to Sub-section (1), where any property is given to
a female Hindu in lieu of her maintenance before the commencement of the Hindu
Succession Act, such property becomes the absolute property of such female
Hindu on the commencement of the Act provided the said property was
"possessed" by her. Where, however, the property is given to a female
Hindu towards her maintenance after the commencement of the Act, she becomes
the absolute owner thereof the moment she is placed in possession of the said
property (unless, of course, she is already in possession) notwithstanding the
limitations and restrictions contained in the instrument, grant or award whereunder
the property is given to her.
proposition follows from the words in Sub-section (1), which insofar as is
relevant read : "Any property possessed by a female Hindu....after the
commencement of this Act shall be held by her as full owner and not as a
limited owner". In other words, though the instrument, grant, award or
deed creates a limited estate or a restricted estate, as the case may be, it
stands transformed into an absolute estate provided such property is given to a
female Hindu in lieu of maintenance and is placed in her possession. So far as
the expression "possessed" is concerned, it too has been the
subject-matter of interpretation by several decisions of this Court to which it
is not necessary to refer for the purpose of this case. (emphasis
view of the aforementioned binding authoritative pronouncements of this Court,
we are of the opinion that the pre- existing right of Sundrabai was
crystallized by reason of the said consent decree. Furthermore there is nothing
on record to show that 12 acres 33 guntas of land was the only property
belonging to the joint family and thus, she had been granted more lands to
which she was not entitled to.
view of the matter, we do not find any infirmity in the impugned judgment. The
appeal is accordingly dismissed with costs.
fees assessed at Rs.10,000/-.