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CASE NO.:

Appeal (civil) 9147 of 1996

PETITIONER:

MUNINANJAPPA AND ORS.

RESPONDENT:

R. MANUAL AND ANR.

DATE OF JUDGMENT: 11/04/2001

BENCH:

A.P. MISRA & U.C. BANERJEE

JUDGMENT:

JUDGMENT

2001 (2) SCR 1113

The Judgment of the Court was delivered by

MISRA, J. In spite of expertise in drafting a Will, the testators infusing

his intentions in it, the struggle for a claim under it remained unabated,

the tug of war between the two claimants under it has been the cause of

issue before the courts from its very inception. The strong desire to

succeed, even for wrongful claims, has led such claimants to split and

interpret, even simple words and clear intentions into two possible

interpretations. That is why court has to exercise and interpret a Will

with circumspection and caution in order to give thrust to the true

intentions of a testator.

This appeal also raises similar question of the interpretation of a Will

and consequently the right of a widow of a benefactor under the Will. The

questions raised are :

(a) Whether the right given to Guruswamy, the benefactor under the Will

dated 1st June, 1942 was a limited right.

(b) If Guruswamy had a limited right, whether his widow Sevamma could

get absolute right under Section 14(1) of the Hindu Succession Act, 1956 to

execute the impugned sale deed in favour of respondent nos. 1 and 2.

In order to appreciate the controversies and to answer the aforesaid two

questions, we are hereunder giving short matrix of facts which are

essential for the disposal of this appeal.

The following Genealogical Table showing the relationship inter se between

testatrix Poovamma and the beneficiaries under the Will is given as under:

Revalappa Muniyamma = Lakshmaiah = Vellamma Poovamma

(First Wife) (Second Wife)

Textatrix

Muninanjappa Guruswamy=Sevamma(widow)

(Plaintiff) (Defendant no. 3)

The suit was filed by the plaintiffs-appellants for declaration that the

sale deed executed by defendant no. 3 Sevamma, widow of Guruswamy in favour

of defendant-respondent nos.l and 2 is not binding on them as she had no

right to' sell the same, hence defendant nos. 1 and 2 cannot derive any

right, title or interest over the suit property by virtue of the said sale

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deed. Poovamma was the original owner of the suit property which is not in

dispute. The plaintiffs lost his father Lakshmaiah, the brother of

Poovamma'When he was four years old and was lookedafter by Poovamma.

Guruswamy the brother of plaintiff born from the second wife also came

under the care of Poovamma. Defendant no.3 Sevamma is the widow of

Guruswamy. The case of plaintiffs-appellants is, under the aforesaid

registered Will dated 1st June, 1942 Poovamma bequeathed the suit property

in favour of both plaintiff and Guruswamy. Under the Will none of the

legatees, the benefactor under the Will gets any right to alienate any part

of the suit property hence Guruswamy and his widow Sevamma could at best

have life interest without any right of alienation. Thus the property

bequeathed, after the death of both, namely, Guruswamy and his widow

Sevamma reverts back to the plaintiff. In spite of this limited right,

Sevamma sold this property to defendant nos. 1 and 2 (respondent nos. 1 and

2 in this Court) on 4th September, 1980 through a registered sale deed. As

a consequence of this respondent nos. 1 and 2 filed petition for plaintiffs

eviction. This led to the filing of the present suit by the plaintiffs-

appellant as aforesaid. The case set up by respondent nos. 1 and 2 is that

after the death of Guruswamy his widow Sevamma became absolute owner by

virtue of Sections 13 and 14 of the Hindu Succession Act and hence

alienation of this property, through the said sale deed is valid. Defendant

no. 3 Sevamma supported the case of respondent nos. 1 and 2 and further

said that after the death of her husband she was in possession of the suit

property, which was in lieu of her right of maintenance, thus by virtue of

Sections 13 and 14 of the Hindu Succession Act she became absolute owner

after her husband's death on 23rd August, 1970.

The trial court came to the conclusion, while interpreting the aforesaid

Will, that the suit property was bequeathed to Guruswamy for enjoying it

during his life time without any right of alienation, in case a son is born

to him, such son would be the full owner, with a right of alienation.

However, Guruswamy died without any male issue. Thus the question which

came for consideration was, whether after the death of Guruswamy, his widow

could succeed to this property in lieu of maintenance, which could mature

into full owner under the Hindu Succession Act, if not, whether the

impugned sale deed would be void and this property would reverts back to

the plaintiff (Muninanjappa) the only surviving heir. The trial court

concluded that the testatrix intention under the Will was to bequeath the

suit property to the branch of Guruswamy exclusively though with life

interest to Guruswamy. The reason for this is because of the absence of

recording in the Will after the death of Guruswamy and his widow, the suit

property would revert back to the plaintiff. The trial court finally

concluded that the branch of Guruswamy and of plaintiffs would become

absolute owner of the suit property be-queathed to them. Thus the widow

being the only heir of the Guruswamy branch would succeed to the said

property under Section 8 of the Hindu Succession Act as she falls under

class I category of the schedule. It further held, Section 14(2) of the

Hindu Succession Act has no application. Thus the sale deed in question

cannot be held to be illegal, so dismissed the plaintiff's suit. Aggrieved

by this the plaintiff-appellant filed appeal before the High Court which

was also dismissed in which it is held :

"As far as the first aspect of the matter is concerned, I need to observe

that the learned trial Judge has relied on the provisions of S. 14 of the

Hindu Succession Act. Admittedly the property was not inherited by Sevamma

in her own right. What was contended on her behalf was that on the death of

her husband, she was the sole surviving hek of Guruswamy and that

consequently the property which constituted his estate devolved on her but

the supportive reason for this was that being the wife of Guruswamy she had

the absolute right of claiming maintenance and that by virtue of the

proviso to s. 14 on the ground, principally that she was entitled to

maintenance, the property did come to her.

.....The respondents' learned advocate has seriously contested this

position because he points out that by virtue of operation of S. 14,

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regardless of provisions of S. 14 (2) that on the facts of the present

case, Sevamma had become the absolute owner. I have already held that it is

impossible to read into the will any limitation vis-a-vis the alienation of

this property and under these circumstances, the provisions of S. 14 (2)

would not come into operation. Under these circumstances for very good

reasons the legislature has pro-vided that a Hindu wife will acquire

absolute rights in respect of the property of her husband. When the law

uses the word 'absolute', it envisages the freedom or liberty to deal with

those properties in whatever manner the holder deems fit....

To my mind, the wordings in the Will are unambiguous and are quite clear.

They do not create any doubt whatsoever in my mind and it is very clear

also in law that on the death of Guruswamy, his wife did acquire an

absolute right in respect of the disputed property."

Aggrieved by this the appellant has filed the present appeal.

Mr. S.N. Bhat, learned counsel appearing for the respondent submits, in

interpreting a Will; intention of testatrix should be taken into account

and thus if the said Will is construed properly, it would reveal that

testatrix's brother Lakshmaiah had two wives - one Muniyamma and other

Yellamma. Plaintiff was born from the first wife Muniyamma while Guruswamy

was bom from the second wife Yellamma. Since at the time of the execution

of the said Will both plaintiff and Guruswamy were young, hence limited

right was given to them by dividing the suit property half and half - one

going to the branch of the son bom from the first wife and second going to

the branch of son bom from the second wife. This clearly reveals testatrix

intended the property to go to two branches absolutely specially in the

absence of any reference in the Will that the property would revert to the

other branch where no son is born. Thus the right of the said two brothers

even if limited would mature into absolute right if this intention of the

testatrix is read into the Will. He further submits, in any case, even if

Guruswamy had a limited right, after his death his widow having right in

lieu of maintenance out of any estate of her husband it would mature into

full right by virtue of Section 14(1) of the Hindu Succession Act.

On the other hand Mr. Rajesh Mahale, advocate appearing for the appellant

submits that the said Will gives limited right to both the brothers,

namely, the plaintiff and Guruswamy and it is only when a son is bom to

them, such son is to acquire the absolute right of his branch. Further if

Guruswamy himself had a limited right it cannot mature into full right

either in his favour or in favour of his widow. In any case, at the most

the widow may continue to enjoy this limited right until a son is born out

of her wedlock with Guruswamy, but in no case this limited right could be

construed to be in lieu of maintenance or any of her pre-existing right.

Hence the judgment of both the trial court and the appellate court holding

the widow Sevamma having full right is not sustainable in the eyes of law

and liable to be set aside. He also referred to Sections 112 and 115 of the

Indian Succession Act, 1925. The submission is, Section 112 spells out,

when a bequest is made to a person not in existence till testator's death

then such bequest to such person is void to that extent. In the present

case admittedly at the time of death of testatrix no son was born to

Guruswamy hence the second bequest in favour of son of Guruswamy is void.

However, by virtue of Section 115, if bequest is made to a class of person

and even if for some it is inoperative viz. those falling under Section

112, then such bequest would be void only in regard to such persons and not

in regard to the remaining class of persons.

Learned counsel for the respondent construes the Will to mean that

intention of the testatrix was that the two branches, one out of 1st wife

and other out of 2nd wife of Lakshmaiah become absolute owner. Submission

is, even if words in the Will are missing, the court should supply these

missing words to subserve the intentions of the testator. For this,

reliance is placed in Smt. Pramod Kumari Bhatia v. Om Prakash Bhati and

Ors., [1980] 1 SCC 412, which holds while constituting a Will, the court

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could supply the missing words to carry out the intention of the testator,

in order to appreciate this, the relevant portion of the Will is quoted

hereunder:

"After my death the schedule item one house shall go to Guruswamy, the 4

years old minor son of my above said deceased elder brother, Lakshmaiah

through his second wife Yellamma and also to the male child to be born to

Yellamma who is presently carrying.

My adopted son, the said Muninanjappa shall only enjoy the schedule one

item house and he shall not have any right to alienate it by way of either

sale, gift or mortgage. His male children may enjoy the same as they

desire. The schedule item two house may be enjoyed by the said Yellamma's

son Guruswamy and the male child to be born to Yellamma and they shall not

have any right to alienate the same by way of sale, gift, mortgage etc.

Their male children shall have every right to enjoy the same as they

desire. The said Yellamma shall have the right to reside in the said house

along with the minor children during her life time."

Reliance is also placed in Raghbir Singh and Ors. v. Budh Singh and Ors.,

AIR (1978) Delhi 86. In this case also the Court held, while construing a

Will the intention of the Testator should be carried out. It further held,

keeping this in view, different parts of the Will should be construed

harmo-niously. The Courts should not reject any part of the Will being a

surplusage. As the testator could not have intended to make any bequest in

the Will as an exercise in futility. It further held, in doing so, if

necessary, the Court may read down the language of a part of the Will to

give full effect to the general words of the other part of the Will.

The principle laid down in the aforesaid decisions cannot be disputed. This

will depend on the facts of each case and the language of the Will. It may

be, in a given case the court may supply the missing words and in some

other the court may read down the language of the Will in order to

implement the intention of a testator. However, where the language and the

words of a Will are clear, there is no ambiguity which could be understood

clearly without any doubt then it would not be proper to either supplement

the words or read it down to give benefit to either of the contesting

parties. In the present case we find that the language of the Will is clear

and unambiguous. Thus to find out intentions of the testatrix, no

supplementing or reading down any word is necessary. The testatrix

bequeathed her property to her brother's sons, namely, one from first wife,

plaintiff and other to Guruswamy, from the second wife. To both she clearly

records in no uncertain words that they would have limited right with no

right to alienate. She also clearly records in case son is bom to them they

would get absolute right including right to alienate. The language in the

Will is :

"After my death the schedule item one (which is item No.2 in the schedule

to the plaint) house shall go to Guruswami........., My adopted son, the

said Muninanjappa (Plaintiff) shall only enjoy the schedule one item house

and he shall not have any right to alienate

..........His male child may enjoy the same as they desire. The schedule

item two, house may be enjoyed by the said........Guruswamy and the male

child to be born to Yellamma and they shall not have any right to

alienate.......The male child shall have every right to enjoy the same as

they desire."

The aforesaid language in the Will are clear that the testatrix intended to

give limited right to both plaintiff and Guruswami and absolute right only

to the sons born to them. If that be so, the only point which requires our

consideration, is what right Sevamma widow of Guruswamy gets after the

death of Guruswamy? We have no hesitation to hold that the limited right of

Guruswamy cannot be Interpreted by any stretch of language that testatrix

intended to give absolute right to Guruswamy or to his widow. They were to

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hold the property for delivery to the son, in case, bom out of their

wedlock. In no case Sevamma's right over the property would mature into

absolute right by virtue of Section 14(1) of the Hindu Succession Act. Her

right could only mature as such, if her claim could be based on any of her

pre-existing right including right in lieu of maintenance out of her

husband's property. But in no case it would mature where the property is

held by her husband either in trust for the benefit of other or as limited

and restricted owner with no right to alienate. Hence even if Sevamma

continued to enjoy the property after the death of her husband, she held

the property at the most, in the same capacity as her husband but not to

claim it towards her right of maintenance. If husband had any other

property apart from what was gifted by Poovamma, she could claim her above

right under Section 14(1) but not over the property given to her husband

Guruswamy as a limited owner. The High Court fell into error while

construing Section 14(1) of the Hindu Succession Act by extending its width

so wide which spills over its permissible boundary when it held, a Hindu

wife will acquire absolute right in the property of her husband and then

applying it to the facts of this case. It seems High Court was not

appraised with the settled law, in respect of the field of Section 14(1) as

declared by this Court as far back as in V. Tulasamma & Ors. v. Sesha Reddy

(Dead) by Lrs., [1977] 3 SCC 99 and also reiterated in Velamuri Venkata

Sivaprasad (Dead) by Lrs., v. Kothuri Venkateswarlu (dead) by Lrs. & Ors.,

[2000] 2 SCC 139, which holds benefit to a female could be given under

Section 14 (1) where her claim is based on her pre-existing right over her

husband's property. V. Tulasamma & Ors. (supra) holds Section 14 (2) is in

the nature of a proviso to Section 14 (1). Section 14 (1) applies to

property granted to a female Hindu by virtue of a pre-existing right of

maintenance. The decision while carrying out the field of Section 14 (2)

held:

"...Sub-section (2) must be confined to cases where property is acquired by

a Hindu female for the first time as a grant, without any pre existing

right......., the terms of which prescribes a restricted estate in the

property.......Where, however, property is acquired by a Hindu female at a

partition or in lieu of maintenance, it is by virtue of a pre-existing

right and such an acquisition would not be within the scope of sub-section

(2), but within the scope of sub-section (1)."

Applying the said principle, it has to be seen whether Sevemma is possessed

of the property of her deceased husband based on her pre-existing right or

is holding such property under any instrument prescribing restrictive

estate in such property. By no stretch of interpretation it could be said,

Sevamma was possessed of the suit property in lieu of her any pre-existing

right. When a widow claims her right under sub-section (1) of Section 14 in

the hand of either coparcener or male issue of her deceased husband, it is

because of her pre-existing right of maintenance to the extent of her

husband share in a joint family property. She cannot claim any such right

out of the share of other coparcener in which there is no trace of her

husband's share. So when limited right as spoken with reference to the

husband right in joint Hindu family property, it only means limited to the

extent of husband's share.

Learned counsel for the respondent referred to N. Appavu Udayan and Anr. v.

Nallammal, AIR (1949) Madras 24. In this case, it is held that even father-

in-law has a moral obligation to maintain his widowed daughter-in-law out

of his self-acquired property and on his death this liability passes on to

his heirs. This case has no application to the facts in the present case.

We are in the present case not called upon to decide any claim of the

daughter-in-law over the property of her father-in-law and further in the

said case father-in-law was the absolute owner being self-acquired

property. In the present case her husband's right to the suit property is

limited and restricted hi its enjoyment under the said Will, thus no right

on the widow could be conferred more than what her husband possessed. He

also referred to Ram Kali (Smt.) v. Choudhri Ajit Shankar and Ors., [1997]

9 SCC 613. This case also has no application, as the property acquired by

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the widow under Will was in lieu of maintenance allowance. Widow in this

case was given the right to reside in the house during her lifetime and was

debarred from alienating the same. However, widow was in possession of the

house when the Hindu Succession Act came into force. The Court held that

she held the property in recognition of her pre-existing right to

maintenance. As a consequence her limited estate enlarged into an absolute

estate.

Next reference was made Kalawatibai v. Soiryabai and Ors., [1991] 3 SCC

410. This was a case where the Hindu widow alienate the entire property

inherited by her from her husband by executing a gift deed. This was a case

where the question was, whether a widow possessed of the property in

question being the limited owner could she mature her right under Section

14 of the Hindu Succession Act. Reliance is placed on the following lines:

"No actual division of share had taken place, yet the court held that it

was property 'possessed' by her on the date the Act came into force. In

Sukhram v. Gauri Shankar, it was held that a widow was full owner in Joint

Hindu family property as she became entitled to the interest which her

husband had by virtue of Hindu Women Right to Property Act. The court ruled

that even though a male was subject to restrictions qua alienation on his

interest in joint Hindu family property, but a widow acquiring an interest

by virtue of the Act did not suffer such restriction. V. Tulsamma v. Shesha

Reddy and Bai Vajia v. Thakorbhai Chelabhai, were cases where the widow was

'pos-sessed' of the property in lieu of maintenance, and therefore, she was

held to be full owner".

This was a case of joint Hindu family property where husband had a right in

the property being member of the joint Hindu family, even though limited,

which is distinguishable from the limited right which testatrix granted to

Guruswamy. In the aforesaid case husband's limited right is referred as

limited to the extent of his share, but there existed in the property the

right of the husband independently to the extent of his share while right

to Guruswami in the suit property, he had no other right except what is

conferred under the Will, which restricts it for its enjoyment only but no

independent right to transfer. Distinguishing feature between these two

types of limited rights is, in the case of husband's right in the joint

family property, even though limited, has a right to seek partition or

right to transfer to the extent of his share which Guruswami could not

enjoy in the restrictive right under the said Will. In other words,

Guruswamy could neither seek right of partition nor transfer his such right

to any one else.

We find in the case before us trial court held that Sevamma became absolute

owner by virtue of Section 8 of the Hindu Succession Act which has no legs

to stand, both on facts and law. We have already recorded Guruswamy has a

limited and restrictive right, no absolute right. His widow on the facts of

this case cannot be treated to be class I heir under the said Act. Hence

both the courts below fell into error in holding that Sevamma became

absolute owner. Accordingly, the finding of both the trial court and the

appellate court are unsustainable in law. In view of the aforesaid findings

we answer the first question by holding that the Will dated 1st June, 1942,

grants Guruswamy limited and restrictive right in no case to mature into

full right.

As a consequence of this we answer the second question by holding that

Sevamma did not inherit the suit property from her husband nor possessed it

in lieu of maintenance hence question of maturing it into full right under

Section 14(1) of the Hindu Succession Act does not arise. Thus we hold

Sevamma had no right to alienate the suit property, thus sale of the suit

property in favour of respondent nos. 1 and 2 can not be held to be valid.

Thus for these reasons and findings, we set aside the findings and the

judgment of both of the trial court and the High Court and decree the suit

of the plaintiff. Costs on the parties.

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