A

B

JAGANNATHAN PILLAI

v.

KUNJITHAPADAM PILLAI & ORS.

APRIL 21, 1987.

[M.P. THAKKAR AND B.C. RAY, JJ.)

'Hindu Succession Act,

1956:

S. 14( 1)-Hindu widow regainspos­

session of property subsequent to commencement of Act-Nature of her y

right or interest-Whether full or limited owner.

C · . ' Section14(1) orthe Hindu Succession Act, 1956 provides that any

property possessed by a female Hindu, whether acquired before or after

the commencement of the Act shall be held by her as full owner thereof

D

· and not as a limited owner. The Expl~nation to the sub-section induded

property acquired by a female Hindu by purchase within the expression

'property.'

The Hindu widow, In the instant case, who bad acquired a limited

estate from

her husband by reason

of his death was not In possession on

the date of the enforcement of the Act, she having transferred the

property in favour of an alienee. But, later the possession was restored

to her upon the original alienee reconveying the property to her, revers-

E Ing the transaction. Her right to the said property was assailed by the

appellant before the Madras High Court and a question arose as to

whether upon the reconveyance or the very 'property, which she had

, alienated, after the enforcement of the Act she would become full owner

In respect ofsuch a property by virtue of s. 14(1) of the Act.

F ' The High Court following Its earlier ·view In Chinnakolandai · I

''· Goun41:n v. Thanji Gounder, (ILR 1966 I Madras 326) and that of

'· Punjab High Court 1.n Teja Singh v. Jagat Singh, (AIR 1964 Punjab

403), Bombay High Court in Ramgowda Aunagowda v. Bhausaheb,

(ILR 52 Bom.

1) and Gujarat High Court in Champa v. Chandrakant

(Am 1973 Gujarat 227), held that she would become an absolute owner

G

or such a property

In the aforesaid situation.

In this appeal by certificate, it was contended for the appellant,

relying on the view pronounced by the Orissa High Court in Ganesh

'-c.. Mahanta v. Sukria Bewa, (AIR 1963 Orissa 167) and Andhra Pradesh

·

/

High Court In Medicherla Venkataratnam v. Siddani Palamma, 1970

H II Andhra Weekly Reporter 264), thats. 14(1) of the Act does not come

1070

------------~

JAGANNATHAN v. KUNJITHAPADAM 1071

Into play in the case of a retfansfer of the property to the widow suhse-

A

qnent to the commeneement of the Act, as the transferee or the donee.

1 who had only a limited interest, cannot transfer a title higher than the

title

that they themselves had in the property.

Dismissing the appeal, the

court,

B

HELD: 1. A Hindu woman is entitled to become an absolute

-'"1

owner of the prop~!1y which she had alienated, upon its reconveyance

to her by the transferee after the enforcement of the Hindu Succession

-l

Act, 1956 by virtue ofs. 14(1). [1082G; 1075B]

2.1 The whole purpose of s. 14(1) is to make a widow who has a

c

limited interest a full owner In respect of the property in question

~:

regardless of whether the acquisition was prior to or subsequent to the

commencement

of the Act. It comes into operation at the point of time

when the right of the Hindu widow to the

pr9perty is called into ques·

tion. All that has to be shown by her Jhen is that she had acquired the

property B!ld that she was possessed of the property. Once it is shown D

by her that she was p11ssessed of the property on that date in the eyes of

law the property held by her would be held by her as "full owner" and

not as limited owner. [1079G; 1075GH; 1077BC]

..¥ 2.2 Possession, physical or constructive or in legal sense, on the

date of coming into operation of the Act is not the &ine-qua-non for the E

-

acqnisitio11 of full ownership in property by the Hindu female. The

expression "possessed of'' used in s. 14(1) pertains to the acquisition of

a right or interest in the property and not to physical possession

·+-

acquired by force or without any legal right. The expression "whether

acquired before or after the commencement of the Act" used ins. 14(1)

makes it evident that any property possessed by a Hindu female whether F

't acquired before or after the commencement of the Act, would he held by

her as a full owner thereof and not as a limited owner. H the legislature had

not contemplated a Hindu widow becoming possessed of a property by

virtue of an acquisition after the commencement of the Act the aforesaid

expression would

not have been used.

[1076FG; Ul81C; 1076CD; 1081AB]

G

. ""{

2.3 When the Hindu female in the instant case bought the pro·

perty from the alienee to whom she had sold it prior to the enforcement

of the Act, she had acquired the property within the meaning of the

explanation

to s. 14(1) of the Act. The transaction by which the vendee of

the Hindu female had acquired an interest in the said property was

H

reversed and she was restored to the position prevailing before the

1072 SUPREME COURT REPORTS 0987J ~ ~.C.&.

A transaction took place. In the eyes of law the transaction stood

obliterated

or

effaced. Thus, on the date on which her right to the

property was called into question, she

was possessed of the property

which she bad inherited from

her husband, she having by then

re·

acquired and regained what she had lost, and her limited right had

8

matured into a full ownmhlp in view of s. 14(1) of the Act. [1077C, EF; 1078C)

3. By the reversal of the transaction Q!1 right of the reversioner

was affected, for be bad merely a spes su"'ssl!lllis .In. t,h~ property and

nothing more. His possible chance of sllCCeeding l!PQll ti!,~ ~!!PI ,of the

Hindu female disappeared from the horizon as soon as wli@!: $1!!l !f.l!!I

temporarily parted with was restored to her. Therefore, whl!tller I!

C challenge was made during her life-time or it was made after her dealb,

if the question arose as to what was the nature of Interest In the pro­

perty held by the concerned Hindu female after the reversal of the

transaction the answer would be that she had a 'full ownership' and not

a 'limited ownership'. [1078DE; l077H·1078A]

D

4. If the transferee from the concernec! Hl11du female had trans·

ferred his right, title and interest In the property w a third person

instead

of transferring

it· back to her, the prlociple th!d ~ transferor

cannot transmit a better title or a title higher than that ~ J!1 lllPt

at the given time would have come into play. Not otherwllie, 'file tfl!J!S•

E action having been reversed the Hindu widow became re•possefsed or

the property which she had possessed prior to the transfer to the ori11I•

nal alienee or the donee and her right straightaway matured Into full

ownership by virtue ofs. 14(1), [1078B; 1079DE] · · · · ·

5. The case of the widow who had temporarily lost the right in the

F property by virtue of the transfer in favour of the alienee or the donee

cannot

be equated with that of a stranger. The Act is intended to benefit

her. And when she becomes possessed of the property, having regained

precisely that interest which she had temporarily lost during the

dura·

tion of the eclipse, s. 14(1) would come to her rescue which would not be

the matter In the case of a stranger who cannot invoke s. 14(1). [ 1080FI

G

Kotturuswamy v. Veeravva, (AIR 1959 S.C. 577) distinguished.

Chinnakolandai Goundan v. Thanji Gounder, (ILR 1966 I

Madras 326); Teja Singh v. Jagat Singh, (AIR 1964 Punjab 403);

Ramgowda Aunagowda v. Bhausaheb, (ILR 52 Born. 1) and Champa

H v. Chandrakant, (AIR 1973 Gujarat 227), approved.

.i..­

).·' ·:.

. ""\.

JAGANNATHAN v. KUNJITHAPAOAM [THAKKAR, l.] 1073

Ganesh Mahanta. v. Sukria Bewa, (AIR 1963 Orissa 167) and

Medicherla Venkataratnam v. Siddani Palamma, (1970 II Andhra A

Weekly Reporter

264), overruled.

CIVIL

APPELLATE JURISDICTION: Civil Appeal No. 1196

of 1973.

From the Judgment and Decree dated 20.9.1971 of the Madras

High Court

in Appeal No. 425 of 1964.

T,S. Krishnamoorthy Iyer, K. Ram Kumar and K. Ram Mohan

for the Appellant,

S.T. Desai,

K. Ramamurthy and A.T.M.

Sampath for Respon­

~ 'dents No. 1and2.

Rajendra Chowdhary for the Respondent No. 3 to 5.

The Judgment of he Court was delivered by

B

c

D

THAKKAR, J. Under the same law

1

in an identical fact­

situation, a Hindu widow who has inherited property in Orissa or

Anphra Pradesh woufd be a 'limited owner' and would not become an

'alJsolute owner' thereof whereas if she has inherited property in

Madras, Punjab, Bombay or Gujarat she would become an 'absolute E

owner'.

That is to say, in a situation where a Hindu widow regains

possession of a property (in which

~he had a limited ownership) subse­

quent to the commencement of the Act

2 upon the retransfer of the very

same property to her

by the transferee in whose favour she had trans­

ferred it prior to the commencement, of the Act. This incongruous

situation has arisen because of an interpretation and application of F

Section

14(

I)' of the Hindu Succession Act (Act) in the context of the

1. Section 14( 1) of Hindu Succession Act of 1956

2. The Act came into force on June 17, 1956.

3. "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 as full owner thereof, G

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 or by prescription, or in any other manner whatsoever, and also any sue~

property held by her as stridhana immediately before the commencement of this H

Act."

1074 SUPREME COURT REPORTS [1987] 2 S.C.R.

A aforesaid fact-situation the High Courts of. Orissa

4

and Andhra

Pradesh' have proclaimed that she would be only a 'limited owner' of

such property on such retransfer whereas the High Courts of Madras',

Punjab

7

Bombay' and Gujarat' have taken a contrary view and have

pronounced that she would become an 'absolute owner' of such a

property in the aforesaid situation.

We have therefore to undertake

B this exercise to remove the unaesthetic wrinkles from the face of law to

ensure that a Hindu widow has the same rights under the same

law

regardless of the fact as to whether her property is situated within the

,.___

jurisdiction of one High Court or the other.

The appellant who unsuccessfully canvassed before the High

~­

C· Court of Madras that the view propounded by the Orissa and Andhra

Pradesh High Courts deserved to be preferred to the view taken by the

other four High Courts, has approached this Court by way of the I ).­

present appeal by a certificate granted under Article 133(1)(a) of the

Constitution

of India that the matter involves a substantial question of

D Jaw.

E

F

The typical facts in the backdrop of which the problem has to be

viewed are:

-

(1) A Hindu female acquired a property, say by reason of the

death of her husband, before the commencement of the Act

(i.e. before June 17, 1956).

(2) What she acquired was a: widow's estate as understood in

shastric or traditional Hindu Law. -~-

(3) She lost the possession of the property on account of a trans-

action whereby she transferred the property

in favour of an

alienee by a registered document of 'sale' or 'gift'.

4. Ganesh Mahanta v.

Sukria Rewa (AIR 1963 Orissa 167).

5. Medicherla Venkataratnam v. Siddani Palamma, (1970 II Andhra Weekly Reporter

G 264).

6. Chinnakolandai Goundan v. Thanji Gounder, \ILR 1966 I Madras 326).

7. TtjaSinghv.JagatSingh, (AIR !964Punjab403).

8. Ramgowda Aunagowda v. Bhausaheb, (ILR 52 Born. I).

H 9. Champav. Chandra/cant, (AJR.!973 Gujarat 227).

-

'

•I

'

+-

JAGANNATHAN v. KUNJITHAPADAM (THAKKAR, J.J 1075

(4) The property in question was retransferred to her by the said A

alienee 'after' the enforcement of the Act

by a registered

document thus restoring to the

widow the interest (such as it

was) which she had parted with earlier

by reversing the origi-

nal transaction.

It is in this factual background that the question will have to be B

examined

as to whether upon the reconveyance of the very property

which she had alienated after enforcement of the Act,

she would

be­

come a full owner in respect of such a property by virtue of Section

14(1) of the Hindu Succession Act, 1956 (Act). Be it realized that the

law has been settled

by this Court that the limited estate or limited

ownership

of a Hindu female would enlarge into an absolute estate or C

full ownership

of the property in

questio11 in t!ie folJowil)g fa~t­

situation:

1. Where she acquired the limite<! estate in the property before

or after the commencement of the Ac! provjped she was in

possession of the property at the time of the cmning into force D

of the Act on June

17, 1956.

2. Even if the property in question was possessed by her in lieu

of her right to maintenance as against the estate of her

deceased husband

or the joint family property, she would be

entitled to become a full

or absolute owner having regard to E

the fact that the origin of her right

was traceable

10 the right

against her husband's estate.

The problem which has arisen in the present appeal is in the

context

of a fact-situation where while the widow acquired

a limited

estate from her husband she was not in possession on the date of the F

enforcement

of the Act viz. June 17, 1956. But the possession was

restored to her upon the original alienee reconveying the property to

her.

On an analysis of Section 14( 1) of the Hindu Succession Act of

1956, it

is evident that the Legislature has abolished the concept of G

limited ownership

in respect of a Hindu female and has enacted that

any property possessed

by her would thereafter be held by her as a full

owner.

Section 14(1) would come into operation if the property at the

point

of time when she has an occasion to claim or assert a title

·

thereto. Or, in other words, at t!ie point of time when her right to the

said property

is called into question. The legal effect of

Section 14( I) H

1076

•

SUPREME COURT REPORTS I 1987] 2 S.C.R.

would be that after the coming into operation of the Act there would·

A t•

be no property in respect of which it COl!lq ~e COOten~e<J by anyon~

~

that a Hindu female is only a limited owner and 1101 a full owner. (We

are for the moment not concerned with the fact that sub-section (2) of

section

14 which provides that

Section H(l) will 11ot prevent creating a

restricted estate

in favour.of a Hindu female either by gift or will or. ,B any instrument or decree of a Civil Court or award provided the very

document creating title unto jler confers a restricted estate on her).

There is nothing in Section 14 which supports the proposition that a >--

(

Hindu female should be in actual physical possession or-in constructive

possession

of any property on the date of the coming into operation of

.l>.

~

the Act. The expression 'possessed' has been used in the sense of

c

having a right to the property or control over the property. The expre·

ssion 'any property possessed by a Hindu female whether acquirecj

before or after the commencement of the Act' on ~n a,i;1~lysis yields to ).-

the following interpretation:

(l) Any property possessed by a Hindll female acqyired before

D the commencement of the Act will be flelcj by lier as a full

owner thereof and not

as a limited owner.

(2) Any property possessed by a Hindu female acquired after the

commencement of the Act

will be .held as a full owner

there·

'f

of and not as a limited owner.

E

Since the Act in terms applies even to properties possessed by a Hindu -

female which are acquired 'after' the.commencemen of the Act, it is

futile to contend that the Hindu female shall be in 'pnssession' of the

-~

property 'before' the commencement of the Act. If the property itself

....

is acquired 'after' the commencement of the Act, there cou!<l be no

F question of the property being either i11 physical or constructive pos·

session of the Hindu female 'before' (he c01ni11g into operation of the

¥

Act. There is, therefore, no escape from \!1e conQlusion that posses-

sion, physical or constructive or in a le11al sens~. on the date of the

coming into opera!ion of the Act

is not the

sine-qua-non for the

acquisition

of full ownership in property. In fact, the intention of the

G Legislature was to do away with the

concept 9f limit~g ownership in

respect

of the property owned by a Hindu female altogether. Section 4

y

of the Act (it needs to be emphasized) provides that any text, rule or

interpretation

of Hindu Law or custom or

\!Sage as part of that law in

force immediately before the commencemelll of this Act, shall cease to

H

have effect with respect to any matter for which provision is made in

the Act. The legislative intent is therefore, abundantly loud and clear.

JAGANNATHAN v. KUNJJTHAPADAM [THAKKAR, J.) 1077

To era~e the injustice and remove the legal shackles by abolishing the A

'

cpncept of limited estate, or the women's or widow's estate once and

~ for all. To obviate hair-splitting, the Legislature has made it abun-

dantly ~)ear !flat whatever be the property possessed by a Hindu

female, it will be of absolute ownership and not of limited ownership

notwithstanding the position obtaining under the traditional Hindu

B

law.

Once it is shown that at the point of time when the question

regarding title to property held

by a Hindu female arises, she was _,.., 'possessed' of the. property on that date, in the eye of law, the property

held by

her would be held by her as 'full owner' and not as 'limited

-

l

owner'. In other words, all that has to be shown by her is that she had

acquired the property and that she

was 'possessed' of the property at

the point of time when her title

was called into question. When she c

bought the property from the alienee to whom she had sold the pro-~

p!!riy prior to the enforcement of the Act, she 'acquired' the property

within tile meaning of the explanation to Section 14( 1) of the Act. The

right th&! the priginal alienee had to ))old the property as owner (sub-

ject to his right being questioned

by the reversioner

op the death of the

D

female Hindu from whom l!e had purchased the property) was re-

stored to her when she got back the right that she had parted with.

Whatever she had lost 'earlier', was 'now' regained

by her by virtue of

the transaction. The status-quo-ante

was restored in respect of her ~-

interest in the said property. In the eye of law, therefore, the transac-

lion by which the vendee

of the Hindu female acquired an interest in th@ S!li!i property was 'reversed' and the Hindu female was restored to

E

.,_ the pqsition prevailing before the transaction took place. In other

wprgs, ii) !IJe eye of Jaw the transaction stood obliterated or effaced.

Wh11t was 'doqe' by virtue of the document executed in favour of the

.~L trnnsferee was 'undone'. Such would be the consequence of a re-

transfer

by the

aliene~ in favpur of a Hindu female from whom he had

F

acquired an interest in the property in qµestion. Thus on the date on

~ which her right to the property was ~ailed into question, she was '.pos-

sessed' of the property which she had inherited from her husband she

having

by then

re,µcquired and regained what she had lost. And by

virtue of the operation of Section 14(1) of the Act the limitation which

previously inhered

in respect of the property disappeared upon the

G coming into operation of

t!ie Act. It is no longer open to anyone now

1

to contend that she hac! only a 'limited' ownership in the said property

and not a 'full' ownership, the concept of limited ownership having

been abolished altogether, with effect from the coming into operation

of the Act.

Whether a challenge

was made during her lifetime or it was made

H

1078 SUPREME COURT REPORTS [ 1987] 2 S.C.R.

A

after her death, if the question arose as to what was the nature of

interestin the property held by the concerned Hindu female after the

~ reversal of the transaction the answer would be that she had a 'full'

I

ownership and not a 'limited' ownership. It would have been a diffe-

I rent matter if the transferee from the concerned Hindu female had

'

transferred his right, title and interest in the property to a third person

B instead of transferring it back to her. In that event the principle that

the transferor cannot transmit a better title or a title higher than that

possessed

by the transferor at the given time would. come into play.

Not otherwise. When the transaction

was reversed and what belonged

t-,

to her was retransmitted to her, what the concerned Hindu female

,~

~

acquired was a right which she herself once possessed namely, a

c

limited ownership (as it was known prior to the coming into force of

the Act) which immediately matures into or enlarges into a

full owner-

ship in view of Section

14(1) of the Act on the enforcement of the Act.

,..

The resultant position on the reversal of the transaction would be that

the right, title and interest that the alienee had

in the property which

was under 'eclipse' during the subsistence of the transaction had re-

D emerged on the disappearance of the eclipse. In other words, the right

which was under slumber came to be awakened

as soon as the sleep

induced by the transaction came to an end. By the reversal of the

transaction no right

of the reversioner was affected, for he had merely

a spes successionis

in the property and nothing more. His possible

'f chance of succeeding upon the death of the Hindu female disappeared

E from the horizon as soon as what she had temporarily parted with was

restored to her. ~

The proponents of the view canvassed by the appellant placed

I

strong reliance on the decision rendered by a learned Single Judge of

-·

the Orissa High Court in Ganesh Mahanta v. Sukria Bewa, A.LR.

p 1963 Orissa 167 ano the decision of the Andhra Pradesh High Court in

.'.y

Medicherla Venkataratnam v. Siddani Palamma and Ors., A.W.R.

1970(2) 264 wherein the Andhra Pradesh High Court has concurred

with the view of the Orissa High Court. The basis of the reasoning is

reflected in the following passage from Ganesh Mahanta's case:

G "Section 14( 1) does not purport to enlarge the right, title or

interest of the alienee from widow with regard to the trans-,..,.

fers effected prior to the commencement of the Act. A

donee from the widow prior to the commencement of the

Act acquires only a widow's estate in the gifted property

and even if the donee retransfers the property

in favour of

H the widow after the commencement of the Act, the

widow

, ...

JAGANNATHAN v. KUNJITHAPADAM (THAKKAR, J.) 1079

i

would acquire only a limited interest and not an absolute

A

interest

in the

property as the donee cannot transmit any

title higher thati what he himself had."

It appears that the Orissa and the Andhra Pradesh High Courts have

been carried away

by the argument that the donee or the transferee

B who retransfers

ilie property to the widow cannot transmit a title

.,-.

higher than !lie title that they themselves had in the property. In

substance, the argument is that as the transferee or the donee had only

~

f

a limited interest, what he can transmit to the widow is a limited

interest. This argument postulates that Section

14(1) of the Act does

not come irlto play in the case

of a retransfer (by the donee or the

transferee as the case

may be); to the widow subsequent to the comm-

c

i

encement of the Act. There is a basic fallacy in proceeding on the

assumption that Section 14(1) has no impact or that the provision has

no role to

play in case of such a retransfer. This line of reasoning

overlooks the

fat! that

upon re transfer to the widow, the original

transaction

is obliterated and what transpired by virtue of the consequ-

D ence of the

otiginai transfer stands reversed. The resultant position is

that the widow is restored to the original position. Section 14(1) would

not be attracted if the widow was not possessed of the property after

the coming into force of the Act. But in view of the reversal of the

~- transaction, the widow becomes possessed of the property which she

had possessed prior to the transfer to the original alienee or the donee.

~ And Section 14( 1) straightaway comes into play. By virtue of the rever- E

sal of the original trans11ction, her rights would have to be ascertained

as if she became possessed of the property for the first time, after the

,i. commencement of the Act. It is now well settled that even if the widow

has acquired the interest in the property and

is possessed of the pro-

~

perty after the commencement of the Act, her limited right would

ripen

or mature into an absolute interest or full ownership. The ques- F

tion that has to be asked is as to whether the widow became possessed

of the property by virtue of the acquisition of

i!'terest subsequent to

the operation of the Act and whether such interest was a limited

in-

terest. The whole purpose of Section 14(1) is to make a widow who has

a limited interest a full owner in respect of the property

in question -'1

regardless of whether the acquisition was prior to or subsequent to the G

commencement of the Act. On the date on which the retransfer took

place, she became possessed of the property. She became possessed

thereof subsequent to the commencement of the Act. In the result her

limited interest therein would enlarge into an absolute interest, for,

after the commencement

of the Act any property possessed of and

H held by a widow becomes a property in which she has absolute interest

1080 SUPREME COURT REPORTS [1987] 2 S.C.R.

A and not a limited interest, ihe concept of limited interest having been

abolished

by Section 14(1) with effect from the commencement of the

Act. The

Orissa High Court and the Andhra Pradesh High Court have

fallen in error in testing the matter from the stand point of the alienee

or the donee who retransfers the property. The High Court posed the

question

as to whether they would be entitled to full ownership in view

B of Sedion 14(1), instead of posing the question as to whether the

widow

who becomes possessed of the property after the commence­

ment of the Act would be entitled to claim that her limited interest had

enlarged into an absolute interest. Of course, Section 14(1) is not

intended

to benefit the alienee or the donee, but is intended and

designed

to benefit the widow. But the question has to be examined

C from the perspective

of the widow who becomes possessed of the

property

by virtue of the acquisition pursuant to

the retransfer. The

Andhra Pradesh High Court has also fallen in error in accepting the

fallacious argument that the

widow would be in the position of a

stranger

.to whom the property was reconveyed or retransferred. This

fallacy

is reflected in the following passage:

D

" .... Therefore reconveyance will not revive her original

right in the property and she

will be holding the, estate

reconveyed just like any other stranger alienee, for the

lifetime of the alien or widow, though she happens to be

'i-

that widow, and there can be no question of one alienation ·

-

E cancelling the other and the status-quo-ante, the widow's -

alienation being restored."

The case of the widow who had temporarily lost the right in the pro--~ ·

perty by virtue of the transfer in favour of the alienee or the donee can

. not be equated with that

of a stranger by forgetting the

realities of the

F situation. Sureiy, the Act

was intended to benefit her. And when the

r­

widow becomes possessed of the property, having regained precisely

that interest which she had temporarily lost during the duration of the

eclipse, Section

14(1) would come to her rescue which would not be

the matter in the case of a stranger who cannot invoke

Section' 14(1). A

further error was committed in proceeding on the mistaken assump-

G tion that the decision in

Kotturuswamy v. Veeravva, A.LR. 1959 S.C.

577 supported the point

of view which found favour with the

Orissa

and the Andhra Pradesh High Courts. In Kotturuswamy's case the

alienation had taken place before the commencement of the Act and

the widow had

'trespassed' on the property and had obtained physical

possession

as·a trespasser without any title. It was not a case where the

H widow had regained possession lawfully and become entitled to claim

/

JAGANNATHAN v. KUNJITHAPADAM (THAKKAR, J.J 1081

the benefit of Section 14(1) having become possessed of the property A

by way of a lawful acquisition subsequent to the commencement of the

Act. It was ovetlooked that Section 14(1) in terms used the expression

"whether acquired before or after the commencement of the Act". If

the legislature had not contemplated a widow becoming possessed of a

property by virtue of an acquisition after the commencement of the

Act, the aforesaid expression would not have been used by the legisla-B

ture. The Orissa and the Andhra Pradesh High Courts have failed to

give effect to these crucial words and have also failed to apply the

principle in Kotrurnswamy's case properly, wherein' 'the widow

obtained possession as a trespasser. In fact the expression "possessed

of' pertains to the acquisition of a right or interest in the property and

not to physical possession acquired by force or without any legal right. C

The ratio in Kotrurnswami's case was therefore misunderstood and

misconceived by the Orissa and the Andhra Pradesh High Courts. We

agite with the reasoning of the Madras High Court in Chinnakolandai

v. Thanji, (1965) 2 M.L.J. 247: A.I.R. 1965 Mad. 497, wherein

Ramamurthi,

J. has made the point in a very lucid manner in the

following

p~ssage: D

"With respect, I am unable to agree with this view, as the

entire reasoning

is based upon the view

that· there is no

difference between a reconveyance in favour

of the widow

herself and alienation in favour

of the stranger. In my opi­

nion, there

is all the difference between a case of annul-E

ment of a conveyance by consent of both the parties and a

case

of a subsequent alienation by the alienee in favour of a

stranger. In the former case the effect

of the alienation is

completely wiped out and the original position is restored.

This

~istinction has not been noticed in the decision of the

Orissa High Court. The acceptance

of

the contention urged F

by learned counsel for the appellant would lead to startling

results.

Take for instance an un-authorised alienation by a

guardian.

If some cloud is cast on the validity of the

aliena­

tion, and if the alienee, not willing to take any risk till the

attainment of majority by the minor, conveys back the pro­

perty to the guardian, it would not be open to the guardian

G

to contend that he had acquired the voidable title of the

alienee.

In other words, he cannot contend

as·against the

quondam minor that the income from the property would

· be his, and that till the minor takes proceedings for setting

aside the alienation the guardian should be deemed to have

acquired the right, title and interest

of the alienee.

Such a H

'

I

1082 SUPREME COURT REPORTS [1987) 2 S.C.R.

A · contention on the face of it is untenable.

The instance

of an alienation by a trustee or an ex-

ecutor may also be considered.

If after the alienation by the

·trustee or executor the beneficiary raises some objection

B

. ' aboct the validity of the alienation whether well founded or

ill fo:.11Jed and if the alienee who is not prepared to take

any risk conveys back the property to the trustee or the

executor as the case may be it cannot possibly be contended .

that the trustee or the executor got back the property in

any right

or character other than in which it was originally

alienated.

As a result of the reconveyance the property

c would form part of the trust estate. In all these cases the

alienor suffers under a legal disability from holding the

property in any other capacity.

It is needless to multiply

instances. I

am therefore clearly of the opinion that

there is

nothing in law to prevent an alienation being completely

D

nullified as if it never took effect provided the alienor and

I

the alienee agree to such a course. The position is a fortiori

!

where the title conveyed to the alienee is a voidable one. It

cannot be disputed that ·when the reversioner files the suit

it is open to the alienee to submit to a decree. After such a

declaratory decree is passed, there

is nothing in Hindu law

E

which compels or obliges the alienee to retain and keep the

property himself and hand it over to the reversioner.

It is

certainly open to him to respect the decree and convey

back the property to the widow even before her death.

It is

obvious that what the alienee can do after the termination

of the suit

cari equally be done during its pendency. Surely .

F

the alienee is not a trustee for the reversioner to keep the

' property in trust and deliver the property on the death of

' the widow."

'·

Our own reasons we have already articulated. The reasoning

unfolded in the foregoing passage, we fully and wholeheartedly

G endorse. In the result we uphold the view that irr such circumstances

'the concerned Hindu woman

is entitled to become an absolute owner

of the property in question.

The appeal fails and is dismissed. No costs.

H

. P.S.S. Appeal dismissed.

'

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