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PETITIONER:

BALWANT KAUR & ANR.

Vs.

RESPONDENT:

CHANAN SINGH & ORS.

DATE OF JUDGMENT: 18/04/2000

BENCH:

S.B.Majumdar M.Jagannadha Rao

JUDGMENT:

S.B.Majmudar, J.

The appellants in this appeal, who are original

defendant nos. 1 & 2 in civil suit filed by respondent nos.

1 to 4 herein have brought in challenge, on grant of special

leave to appeal under Article 136 of the Constitution of

India, the judgment rendered by learned Single Judge of the

High Court decreeing the respondents/plaintiffs suit.

This appeal raises a short question as to whether appellant

no.1-original defendant no. 1, who is the widowed destitute

daughter of testator-Sham Singh, had acquired full ownership

of 1/3rd interest in the suit land pursuant to the will of

her father dated 21st August, 1959 or whether she had only a

life interest therein, which did not mature into full

ownership in her favour under Section 14 (1) of the Hindu

Succession Act, 1956 (hereinafter referred to as the

Succession Act). The Trial Court, in the suit filed by

the respondents/plaintiffs, took the view that appellant

no.1 had only a life interest which she could not bequeath

in favour of defendant no.2 and, accordingly, granted a

declaratory decree in favour of the plaintiffs. The learned

District Judge, as a Court of first appeal, took a contrary

view and dismissed the suit by holding that appellant no.1

had acquired full ownership of the suit property, up to her

1/3rd full interest in the suit land and she did not acquire

only life interest therein pursuant to the will of the

deceased.

As noted earlier, in the second appeal, the learned

Single Judge of the High Court took a contrary view against

the appellants and restored the decree of declaration

granted by the Trial Court.

In support of this appeal learned senior counsel for

the appellants vehemently contended that, on the facts of

the present case, the right which accrued to appellant no.1

under the will of her father as full owner of the property

was well sustained under Section 14(1) of the Succession Act

and that the High Court was in error in applying Section

14(2) of the said Act. He tried to support his contention

on the ground that appellant no.1, being widowed daughter of

the testator, had a pre-existing legal right to succeed to

the entire estate of the deceased under Section 8 of the

Succession Act, if the testator had died intestate. It is

this right of hers which was confirmed to the extent of

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1/3rd by the will in question and, therefore, Section 14(1)

of the Succession Act squarely got attracted to the facts of

the present case and consequently the suit was liable to be

dismissed.

On the other hand, learned counsel for the

respondents/plaintiffs contended that the High Court had

rightly applied Section 14(2) of the Succession Act for

decreeing the suit. That as per the will of the testator

only life interest was made available to appellant no.1.

That she had no pre-existing right in the estate of her

father who, admittedly, was the sole owner of his property;

that he could have gifted or willed away the property to

anyone he liked. Consequently, if the testator conferred a

limited interest to appellant no.1 in his property as per

his will, the said legacy was squarely covered by Section

14(2) of the Succession Act as held by the High Court and

consequently the present appeal deserves to be dismissed.

Before considering the aforesaid short question

involved in this appeal for our consideration, it is

necessary to keep in view certain admitted and well

established facts on record.

Factual background : One Sham Singh was the sole

owner of land in dispute measuring 47 Kanals situated in

village Dolharon, Tehsil Garhshankar of Hoshiarpur District

of the State of Punjab. Appellant no.1 is his widowed

daughter and was dependent on him for her maintenance and

support. He had no other issue. The said Sham Singh

executed a will dated 21st August, 1959 in favour of his

daughter-appellant no.1 on whom he conferred life interest

to the extent of residue 1/3rd of the suit land which,

according to the will on her death had to revert to his two

brothers Teja Singh and Beant Singh, predecessors in

interest of the respondents herein. His two brothers were

given the legacies of 1/3rd interest each in the suit land

as full owners by the very same will. Thus 2/3rd interest

in the suit land was sought to be willed away in favour of

testators two brothers while 1/3rd interest was given to

appellant no.1 first mentioned as full owner thereof but

also next shown as holding life interest therein by the very

same will and her 1/3rd interest was to devolve on the

testators aforesaid two brothers as reversioners on her

demise. Appellant no.1 claiming to have become full owner

of the 1/3rd property bequeathed to her on the death of the

testator on 11th October, 1960 executed her own will on 6th

February, 1970 bequeathing her right, title and interest in

the suit land to appellant no.2/defendant no.2. That

resulted in the aforesaid suit for declaration as filed by

the plaintiffs claiming to be reversioners entitled to

acquire ownership in the remaining 1/3rd part of suit

property. In the light of the aforesaid factual background,

the short question which is required to be considered is as

to what is the right which accrued to appellant no.1

pursuant to the will of her deceased father. When we turn

to the will in question, we find the following relevant

recitals: ..Unfortunately I have no male issue. Not only

this, Wahuguru is much angry with me that the daughter of

the executant namely Musammat Balwant Kaur, having become a

widow is serving me and the real brothers of the executant

Bayant Singh and Teja Singh, who for the satisfaction and

welfare of the executant also serve me and gives every help,

financial and otherwise to my daughter aforesaid and looks

after my daughter Musammat Balwant Kaur aforesaid in every

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way and I have full confidence that in future too the above

mentioned 3 persons will serve me wholeheartedly and the

brothers of the executant will maintain proper relations and

good behaviour with the daughter of the executant and shall

not leave any stone unturned in performing the custom after

my death. Since in the absence of male issue, in the

present time there remains dispute in respect of the rights

of heirship of the female issue, as a result of which the

property due to litigation is ruined and the owner is

dishonoured in the world and among the relatives. I do not

wish that after my death the result may be such in respect

of my property and myself. Therefore, I, on my own free

will and volition with full senses and good health execute

this will with the following conditions that after the death

of the executant, Teja Singh S/o Gujar Singh, real brother

of the executant shall be the sole heir and owner and title

holder of land measuring (illegible) opposite Shasshan

and Bayant Singh S/o Gujar Singh, real brother of the

executant shall be the heir owner and title holder of

land. Kanals out of 5-12 kanals of land situated

Dohaldoon, Khasra No.248/9.20 and 140/9.7 and Musammat

Balwant Kaur, daughter Shyam Singh executant shall be the

heir, owner and title holder of the entire remaining

moveable and immoveable property of the executant situated

at Doohadroon, Thana Mahalpur. No other person shall have

no right in the heirship of the executant But Musammat

Balwant Kaur daughter of the executant shall be benefited

from the property mentioned above during her life time and

on the death of Musammat Balwant Kaur, the brothers of the

executant mentioned above, shall be the heirs of the

property and if they die before the death of Musammat

Balwant Kaur, the male issues of the said two brothers shall

be the heirs of the property of Musammat Balwant Kaur..

The aforesaid relevant recitals in the will show that

appellant no.1-widowed daughter of the testator, was a

destitute and was solely dependant upon the testator for

maintenance and the testator himself was also anxious about

making provision for her maintenance even after his demise

and relied upon his brothers, the other two legatees, for

looking after his destitute daughter after his life time.

It, therefore, becomes clear that appellant no.1-widowed

daughter of the testator, was a destitute and had no one

else to fall back upon for maintaining her but for the

testator, her father. Under these circumstances, when the

testator granted 1/3rd interest in the suit land to

appellant no.1 by his will (as a residue after deducting

2/3rd interest of his brothers), even though he conferred

life interest to her to that extent, can it be said that the

said provision was in lieu of any pre-existing legal right

of maintenance from his estate as available to his destitute

widowed daughter? If any pre-existing right is culled out

in her favour, at least on the date on which the will

started operating upon the death of the testator, then the

appellants case would squarely be covered by Section 14(1)

of the Succession Act but if, on the other hand, it is held

that she had no pre-existing right in the testators estate

on the date of coming into operation of the will, then it

could be said that she got for the first time interest in

testators property under the will and consequently Section

14(2) would get attracted, as held by the High Court.

Now, it must at once be stated that the reasoning of

the lower appellate Court that the will in question did not

create life interest in favour of appellant no.1 only

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because in the earlier part of the will she was described to

be the owner of the residue 1/3rd share of property, cannot

be sustained. On a conjoint reading of the will, it has to

be held that the testator did not confer full ownership of

1/3rd interest in the suit land to his daughter-appellant

no.1 but only conferred a life interest in the property to

her. Section 88 of the Indian Succession Act, 1925 provides

as follows: 88. The last of two inconsistent clauses

prevails.- Where two clauses of gifts in a will are

irreconcilable, so that they cannot possibly stand together,

the last shall prevail.

This is obviously on the principle that the last

clause represents the latest intention of the testator. It

is true that in the earlier part of the will, the testator

has stated that his daughter-Balwant Kaur shall be the heir,

owner and title-holder of his entire remaining moveable and

immovable property but in the later part of the same will he

has clearly stated that on the death of Balwant Kaur, the

brothers of the testator shall be the heirs of the property.

This clearly shows that the recitals in the later part of

the will would operate and make appellant no.1 only a

limited estate holder in the property bequeathed to her.

However, this is not the end of the matter. The moot

question which survives for consideration is as to whether,

on the date of the operation of the will, namely, on 11th

October, 1960, when the testator died, appellant no.1-

widowed daughter of the testator, had any pre-existing right

in the testators estate. Now it becomes at once clear that

the pre-existing right must be a right in the testators

estate prior to the date on which the will started

operating. It must, therefore, be shown by appellant no.1

that she had any legal right in her fathers estate prior to

11th October, 1960. So far as this question is concerned,

learned senior counsel for the appellants tried to answer

it by submitting that appellant no.1- widowed daughter of

the testator, had a pre-existing legal right to succeed to

his estate under Section 8 of the Succession Act, being heir

of class I. The said section provides: 8. General rules

of succession in the case of males.- The property of a male

Hindu dying intestate shall devolve according to the

provisions of this Chapter:- (a) firstly upon the heirs,

being the relatives specified in class I of the Schedule;

(b) secondly, if there is no heir of class I, then upon the

heirs, being the relatives specified in class II of the

Schedule; (c) thirdly, if there is no heir of any of the

two classes, then upon the agnates of the deceased; and (d)

lastly, if there is no agnate, then upon the cognates of the

deceased.

When we turn to the schedule, we find that daughter

is mentioned as class I heir of the deceased male Hindu

dying intestate while his brothers are mentioned as class

II heirs in category II item (3) of clause II of the

schedule. However, this section could have helped the

appellants if it was shown that the deceased-Sham Singh had

died intestate and not after executing the will in question.

If Sham Singh had died without making a will of his own

properties, then appellant no.1 could have become the full

owner of the entire property left by him and would have

excluded both his brothers whose interest is claimed by the

respondents/plaintiffs. But that situation never occurred

on the death of the testator. Appellant no.1 had merely a

right to succeed to her fathers property if she had

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survived her father and if her father had died intestate

without making any will. This was merely a spes

successionis, a chance to succeed to her fathers property

and not any pre-existing legal right. It is, therefore, not

possible to agree with the contention of learned counsel for

the appellants for invoking Section 14(1) of the Succession

Act that, on the date of the operation of the will,

appellant no.1-widowed daughter of the testator, had any

pre- existing right in the testators estate at any time

prior to 11th October, 1960, under Section 8 of the

Succession Act.

However, the appellants claim can be well sustained

under the relevant provisions of the Hindu Adoptions and

Maintenance Act, 1956 (for short the Maintenance Act).

Let us have a look at these provisions. They are Sections

18 to 22 of the said Maintenance Act.

We shall first refer to Section 21 (vi) and Section

22(2) which deal with the right of maintenance accruing to

the widowed daughter after the death of her father. Later

on, we shall refer to the right of the widowed daughter

under proviso (a) to Section 19(1) for maintenance against

her father, during his life time, which is a right not only

against the father personally but against the property he

may be holding. When we come to deal with the proviso (a)

to Section 19(1) lower down, it will be clear as to why we

are saying that the widowed daughter has a pre-existing

right to maintenance against her father during his life time

in certain circumstances and as against the property he may

be holding.

As per Section 21 clause (vi), if the deceased has

left behind him his widowed daughter then provided and to

the extent that she is unable to obtain maintenance from her

husbands estate, or from her son or daughter, if any, or

his or her estate; or from her father-in-law or his father

or the estate of either of them, then such widowed daughter

is to be treated as a dependant of the deceased. As

enjoined by Section 22, she gets the legal right of being

maintained out of the estate inherited by any of the heirs

of her deceased father. Thus the right of being maintained

out of the estate of the deceased father would inhere in

appellant no.1, his widowed daughter and would get attached

to the entire suit property if it goes in the hands of

testators other testamentary heirs. It is not in dispute

between the parties that she was a destitute widowed

daughter. That she had no issues. As the recitals in the

will clearly indicate, the testator was worried about her

maintenance and that is why even enjoined his brothers-other

legatees under the will, to look after his daughter, after

his death. It is also not the case of the

respondents/plaintiffs that appellant no.1- widowed

daughter of the deceased, had any estate of her deceased

husband or her father-in- law to fall back upon for claiming

dependency benefit. If that was so, she would not have been

maintained by her father in his lifetime. She, admittedly,

was staying with him. Therefore, it has to be held that

appellant no.1 was a destitute widowed daughter of the

testator who had his estate as the only source for getting

maintenance and dependency benefits. That statutory right

inhered in her even during the life time of her father, as

clearly indicated by the will itself.

In this connection, sub-section 2 of Section 22 of the

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Maintenance Act deserves to be noted. It provides that :

Where a dependent has not obtained, by testamentary

or intestate succession, any share in the estate of a Hindu

dying after the commencement of this Act, the dependent

shall be entitled, subject to the provisions of this Act to

maintenance from those who take the estate.

This statutory provision clearly indicates that once a

person is found to be dependent of the deceased, then such

a dependent has a pre-existing right qua the estate of the

deceased to get maintenance and that right, if not

crystallised by way of grant of definite share in the estate

of the deceased either on his intestacy or on the coming

into operation of his testament in favour of the dependent,

then such pre-existing right of maintenance would remain

operative even after the death of the Hindu and would get

attached to the estate which may get transmitted to his

heirs either on his intestacy or on account of the

testamentary disposition in their favour. Thus, Section 22

sub-section 2 underscores pre-existing right of maintenance

in favour of the dependent qua the estate of the Hindu.

This aspect is further highlighted by Section 20 of the

Maintenance Act. Sub-section 1 thereof provides that :

Subject to the provisions of this section a Hindu is bound,

during his or her lifetime, to maintain his or her

legitimate or illegitimate children and his or her aged or

infirm parents.

It cannot be disputed that appellant no.1, who is the

widowed daughter of the testator, was his legitimate child.

Therefore, during the lifetime of her father, she has a

legal right to be maintained by him, especially from his

estate. Sub-section 3 of Section 20 lays down that : The

obligation of a person to maintain his or her aged or infirm

parent or a daughter who is unmarried extends in so far as

the parent or the unmarried daughter, as the case may be, is

unable to maintain himself or herself out of his or her own

earnings or other property.

Now it is obvious that sub-section 3 refers to

unmarried daughter, while appellant no.1 was a widowed

daughter. Consequently, on her marriage, she would have

been entitled to get maintenance from her husband as per

Section 18 of the Act, if he was alive and the marriage was

subsisting. Obviously, Section 18 cannot apply, as

appellant no.1 was already a widow and not a subsisting wife

of her late husband. She was, therefore, a widowed

daughter-in-law of her father-in-law. For her, the relevant

statutory provision is Section 19 of the Act, which deals

with maintenance of widowed daughter-in-law. Sub-section 1

thereof lays down that: A Hindu wife, whether married

before or after the commencement of this Act, shall be

entitled to be maintained after the death of her husband by

her father-in-law. Provided and to the extent that she is

unable to maintain herself out of her own earnings or other

property or, where she has no property of her own, is unable

to obtain maintenance (a) from the estate of her husband

or her father or mother, or (b) from her son or daughter, if

any, or his or her estate. Xxx xxx xxx

(Emphasis supplied)

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Under the proviso to Section 19(1), the words used are

(a) from the estate of her husband or her father or mother

and they mean that she has a right apart from the right

she has against the estate of her husband a personal right

against her father or mother during their respective lives.

The words the estate of before the words her husband are

not to be read into the latter part of the clause as estate

of her father or mother. What the proviso does here is to

create (i) a right against the estate of her husband and

also (ii) an independent and personal right against the

father during his lifetime (or against the mother) if the

daughter is unable to maintain herself out of her earnings

or other property etc. That right against the father during

his lifetime can be enforced against the property he is

holding. The legislature has deliberately not used the

words estate of her father in the proviso (a) to section

19(1). That right of the widowed daughter is covered under

Section 21 (vi) read with Section 22(2). We have already

referred to that right of maintenance against the estate of

her father in Section 22(2) read with Section 21(vi). If

indeed we read the words estate of before the words

father in Section 19(1)(a), then Section 22(2) read with

section 21(vi) would become otiose. That is why we say that

the proviso (a) to Section 19(1) creates a personal right in

favour of the widowed daughter against her father during his

lifetime. Any property given in lieu thereof, during his

life time or to go to her after the fathers life time would

certainly fall under Section 14(1) of the Hindu Succession

Act, 1956, that being in lieu of a pre-existing right during

the fathers lifetime.

On facts, it must be held that the widowed daughter

had a right against her father, during the latters

lifetime, as she was a destitute and not taken care of by

her husband or his estate. It is in lieu thereof, he gave

her 1/3rd of her property.

This provision clearly indicates that if the widowed

daughter-in-law is destitute and has no earnings of her own

or other property and if she has nothing to fall back upon

for maintenance on the estate of her husband or father or

mother or from the estate of her son or daughter, if any,

then she can fall back upon the estate of her father-in-law.

This provision also indicates that in case of a widowed

daughter-in-law of the family if she has no income of her

own or no estate of her husband to fall back upon for

maintenance, then she can legitimately claim maintenance

from her father or mother. On the facts of the present

case, therefore, it has to be held that appellant no.1, who

was a destitute widowed daughter of the testator and who was

staying with him and was being maintained by him in his

lifetime, had nothing to fall back upon so far as her

deceased husbands estate was concerned and she had no

estate of her own. Consequently, as per Section 19(1)(a)

she could claim maintenance from the estate of her father

even during her fathers lifetime. This was a pre-existing

right of the widowed daughter qua testators estate in his

own lifetime and this right which was tried to be

crystallised in the will in her favour after his demise fell

squarely within the provisions of Section 22(2) of the

Maintenance Act. Thus, on a conjoint operation of Sections

19(1)(a) and 22(2) read with Section 21(vi) there is no

escape from the conclusion that appellant no.1 had a

pre-existing right of being maintained from the estate of

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the testator during the testators lifetime and also had got

a subsisting right of maintenance from the said estate even

after the testators death when the estate would pass in

favour of his testamentary heirs and the same situation

would have occurred even if the testator had died intestate

and if appellant no.1 could have become a Class-I heir. As

we have already seen earlier, if the testator had died

intestate, instead of 1/3rd interest she would have got full

interest, in the suit land and it is that interest which was

curtailed up to 1/3rd in lieu of her claim for maintenance

against the estate of the testator pursuant to the will in

question. It, therefore, cannot be said that the provision

in the will in her favour was not in lieu of a pre-existing

right and was conferred only for the first time under the

will so as to attract Section 14(2) of the Succession Act

as, with respect, wrongly assumed by the High Court.

The testator in his wisdom with a view to ensure

future claim of maintenance of appellant no.1 against his

estate, carved out the residuary 1/3rd part thereof for

being handed over to appellant no.1 on his demise. But for

that provision his entire estate would have remained liable

to meet the claim of future maintenance of appellant no.1

from that estate and could have been enforced against any of

the heirs of deceased testator who might have succeeded to

his estate as testamentary heirs on the testamentary

succession getting opened in their favour. The testator

wanted to free his other testamentary heirs from this

pre-existing liability attached to his estate. He,

therefore, carved out a parcel of his estate for enjoyment

of his destitute widowed daughter, though of course as life

interest which Section 14(1) of the Act made a full estate

on the demise of the testator. It is in the light of this

pre- existing statutory right of appellant no.1 for

maintenance against the estate of the testator that the

provision in the will, granting 1/3rd residuary life

interest to appellant no.1, has to be appreciated. Once

this legal right of appellant no.1 is visualised, it would

obviously be the pre-existing right of maintenance in her

favour qua the estate of the testator and it is this right

which, though circumscribed as life interest in the will,

would get matured into full ownership in her favour under

Section 14(1) of the Succession Act, on the coming into

operation of the will. That would precisely attract Section

14(1) of the Succession Act and would take the case out of

the exceptional provision of Section 14(2). Both these

provisions read 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 owner.

Explanation:- In this sub-section, property includes

both movable and immovable property acquired by a female

Hindu by inheritance or device, 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

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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.

In the case of V.Tulasamma & Ors. v. V.Sesha Reddi

(Dead) by L.Rs. [1977] 3 SCR 261, a three-Judge Bench of

this Court, speaking through Bhagwati, J.(as he then was)

has clearly laid down the scope and ambit of Sections 14(1)

and (2) of the Succession Act. The relevant observations at

the bottom of page 268 to beginning of page 270 deserve to

be extracted in extenso: Now, sub-section (2) of section

14 provides that 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. This

provision is more in the nature of a proviso or exception to

sub-section (1) and it was regarded as such by this Court in

Badri Pershad v. Smt. Kanso Devi [(1970) 2 SCR 95]. It

excepts certain kinds of acquisition of property by a Hindu

female from the operation of sub-section (1) and being in

the nature of an exception to a provision which is

calculated to achieve a social purpose by bringing about

change in the social and economic position of women in Hindu

society, it must be construed strictly so as to impinge as

little as possible on the broad sweep of the ameliorative

provision contained in sub-section (1). It cannot be

interpreted in a manner which would rob sub-section (1) of

its efficacy and deprive a Hindu female of the protection

sought to be given to her by sub-section (1). The language

of sub-section (2) is apparently wide to include acquisition

of property by a Hindu female under an instrument or a

decree or order or award where the instrument, decree, order

or award prescribes a restricted estate for her in the

property and this would apparently cover a case where

property is given to a Hindu female at a partition or in

lieu of maintenance and the instrument, decree, order or

award giving such property prescribes limited interest for

her in the property. But that would virtually emasculate

sub-section (1), for in that event, a large number of cases

where property is given to a Hindu female at a partition or

in lieu of maintenance under an instrument, order or award

would be excluded from the operation of the beneficent

provision enacted in sub-section (1), since in most of such

cases, where property is allotted to the Hindu female prior

to enactment of the Act, there would be a provision, in

consonance with the old Sastric law then prevailing,

prescribing limited interest in the property and where

property is given to the Hindu female subsequent to the

enactment of the Act, it would be the easiest thing for the

dominant male to provide that the Hindu female shall have

only a restricted interest in the property and thus make a

mockery of sub-section (1). The Explanation to sub- section

(1) which includes within the scope of that sub-section

property acquired by a female Hindu at a partition or in

lieu of maintenance would also be rendered meaningless,

because there would hardly be a few cases where the

instrument, decree, order or award giving property to a

Hindu female at a partition or in lieu of maintenance would

not contain a provision prescribing restricted estate in the

property. The social purpose of the law would be frustrated

and the reformist zeal underlying the statutory provision

would be chilled. That surely could never have been the

intention of the Legislature in enacting sub- section (2).

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It is an elementary rule of construction that no provision

of a statute should be construed in isolation but it should

be construed with reference to the context and in the light

of other provisions of the statute so as, as far as

possible, to make a consistent enactment of the whole

statute. Sub-section (2) must, therefore, be read in the

context of sub-section (1) so as to leave as large a scope

for operation as possible to sub-section (1) and so read, it

must be 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. This constructional approach finds

support in the decision in Badri Prasads case (supra) where

this Court observed that sub-section (2) can come into

operation only if acquisition in any of the methods enacted

therein is made for the first time without there being any

pre-existing right in the female Hindu who is in possession

of the property"...

(Emphasis supplied)

In the light of this settled legal position,

therefore, the relevant recitals in the will have to be

construed in the background of admitted and well established

facts referred to by us earlier. It is easy to visualise

that if the testator had created a life interest to the

extent of 1/3rd of his property in favour of his maid

servant or a female cook who might have served him during

his life time, then such female legatees could not have

claimed benefit of Section 14(1) and their claim would have

confined only to Section 14(2) as they would not have any

pre-existing legal right of maintenance or dependency qua

the estate of the deceased employer but appellant no.1, as a

destitute widowed daughter of the testator, stands on

entirely a different footing. The will in her favour does

not create for the first time any such right as might have

been created in favour of a maid servant or a cook. In

fact, the will itself recognises her pre- existing right in

express terms and provides that even after his death, his

other legatee brothers have to look after the welfare of his

widowed daughter. Under these circumstances, Section 14(1)

can legitimately be pressed in service by learned senior

counsel for the appellants on the basis of legal right

flowing to her under the relevant provisions of the

Maintenance Act. Once that conclusion is reached, the

result becomes obvious. The judgment and order passed by

the High Court cannot be sustained and will have to be set

aside. Instead, the decree of dismissal of the respondents

suit as passed by the lower appellate Court will have to be

confirmed, though on entirely a different set of reasoning,

as indicated herein above, and not on the ground that the

earlier part of the recitals in the will would supersede the

later part of the recitals.

The appeal is accordingly allowed. The judgment and

order of the High Court are set aside and the decree of

dismissal of respondents suit as passed by the learned

District Judge, Hoshiarpur on 16th August, 1976 is

confirmed.

There will be no order as to costs in the facts and

circumstances of the case.

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