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261

V. TULASAMMA & ORS. A

v.

V. SESHA REDD! (DEAD) BY L. Rs.

March 17, 1977

(P. N. BHAGWATI, A. C. GUPTA AND S. MURTAZA FAZAL ALI, JJ.J

B

Hindu Succession Act, 1956-S. 14(1) and (2)-Scope of.

Section 14 ( !) of the Hindu Succession Act, 1956 proyides that "any property

possessed

by a female Hindu! whether acquired before or after the commence­

ment of the Act, shall be held by her as full owner thereof and

\llOt as a

limited owner}' According to the explanation to this sub-section the term

"property'' includes both movable and immovable property acquired by a female

Hindu

in:

Heu of maintenance or arrears of maintenance or in any other manner C

whatsoever. Sub-section (2) provides that nothing in sub-s. (!) shall apply to

any property acquired by way of gift or under a will or any other instrument

which prescribes a restricted estate in such property.

At the time

of his death, the appellant's. husband, who was

the1 brother of

the respondent, lived in a state of jointness with the respondent. On her

husband's death the appellant

filed a petition for maintenance. The respondent

entered into a

·compromise with her, one of the terms of which was that the D

.appellant should enjoy during her life time certain properties given tOI her and

on her death tbooe properties should revert to the respondent. The appellant

sold some of the properties. The respondent sought a declaration that under

the terms of the compromise the appellant's interest, which was a limited one,

could not be enlarged into a~ absolute interest enabling her to sell the proper-

.ties.

The District Munsiff decreed the suit. On appeal, the District Judge held

that

by virtue of the provisions of the 1956-Act, the appellant had acquired an

absolute interest

in the properties and that s. 14(2) had no application to the

case because the compromise was

an instrument in recognition of_ a pre-existing

right. The High Court. on the other hand, held that the compromise

was an

instrument contemplated by s.14(2) and the appellant could not get an absolute

interest, under s.14(1); and that since her husband died even before the Hindu

Women's Right to Property Act, 1937 came into force, she could not be said

10 have any pre-existing right because she had got the right for the first time

under the compromise.

Allowing the

appea1,

(Per Bhagwati and Gupta, JJ)

HELD : Since the properties were acquired by the appellant under the com­

promise in lieu or satisfaction of her right to rnaintainance it

is s. 14(1) and not •.14(2) which would be applicable. The appellant must be deemed to have

become

fuJJ owner of the properties notwithstanding that the compromise

pres·

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F

cribed a limited. interest in the properties. [274 C-D] G

l. Under the Sastric Hindri ,Law a widow has a right to be maintiiined out

of joint family prope·rtY and this right would ripen into a charge if the \l/idoW

took the necessary steps for having her maintenance ascertained and specifi·

cally charged on the joint famiJy property and even if no specific charge were

created, this right would be enforceable against joint family property i.11. the

hands of a volunteer

or a purchaser taking it with notice of

her claim. The

right of the widow to

1 be maintailled is not a jus in rem, since it does not give

any interest in the joint family property but

it is jus ad ren1. When specific H

property is aJlotted to the widow in Jieu of her claim for mainfenance, the

a11otment would be in satisfaction of her jus ad rem, namely, the

rh~ht tO be

maintained out

of the joint family property. It would not be a grant for

the

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262

SUPREME COURT REPORTS (1977] 3 S.C.R.

first time without any pre-existing right in the widow. The widow would be

getting the J?fOperty in. virtue of her pre-existing right, the instrument giving the

property being merely a document

effectuating such pre-existing right. [273 A·Cl

2(a) Section 14(1) is large in its amplitude and covers every kind of acqui­

sition of property by: a female Hindu including acquisition in lieu of mainte­

nance. Where such property was possessed by her at the date of commence­

ment

of the Act or was subsequently acquired and

possessed, she would become

tho full owner of the property. [268 G]

(b) The words "any property" are large enough to cover any and every

kind of property but in order to expand the reach and ambit of the section anJ.

1nake it all-comprehensive, the Legislature has enacted the explanition. [268 BJ

( c) Whatever be the kind of property movable or immovalile and which­

ever be· the mode of acquisition, it would be· covered by sub-s. ( 1), the object

of the Legislature being to wiye out the disabilities from which a Hindu female

suffered in regard

to

ownership of property under the old Sastric Law, tOI

abridge the stringent provisions against proprietary rights and to recognise her

status

as an independent and absolute owner of property. [268 D]

(d) In Gummalapura Taggina Matada

Kottun1slviimi v. Setra Veeravi

1a

[1959] Supp. I SCR 968, this Court construed the word• "possessed of"" in a

broad sense and in their widest connotation to mean

as

"the state of owning or

having in one's hand or power" which need not be actual or physical possession

or personal occupation of the property by the Hindu female, but may be

possession in law. It may be actual or constructive or in any other form re­

cognised by law. [268 E-F]

(e) Sub-section (2)~ which is in the nature· of a proviso to sub-s.(1), excepts

certain kinds of acquisition of property by a Hindu female fron1 the operation

of sub-s. (I). [269 Bl

(f) Sub-seetion (2), must be read in the context of sub-s.(1) to leave as

large a scope for operation as. possible to sub-s.(1). So read, it must be con­

fined to cases where property is acquired by a female Hindu for the fi~t 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.

[269

HJ

(g) The

legislative· intendment in enacting sub-s.(2) \Vas that this sub­

section s.hould be applicable only to cases where the acquisition of property is

n1ade by a Ilindu female for the first time without any pre-existing right. Where,

ho\vever, property is acquired by a Hindu female at. a partition or in lieu of her

right toi maintenance it is fn virtue of a _pre-existing right and such acquisition

f.VOUld not_ b_e within the. scope and ambit of sub-s.(2) even if the instrument

tllotting the property prescribes a restricted estate in the property. Where pro­

perty

is

acquire<;! by a Hindu female under an instrument in virtue of a pre­

existing right such

as a right to obtain property on partition or a right to

maintenance and under the law

as it stood prior to the enactment of the Act,

she should have no

m·ore than limited interest in the property a provision in

the instrument giving her limited interest in the property would be merely by

way of record

or recognition of the

true legal position and the restriction on -her

¥1.terest being a disability imposed by law would be wiped out awl ht:r limited

interest would be enlarged under sub-s.

(1).

[270 D; 272 A-Bl

In the instant case the appellant claimed maintenance out of the ioint

family properties in the hands of her deceased husband's brother, and the claim

was decreed and in execution of the decree the respondent entered into a com­

pron1ise and allotted properties

tO her in lieu of her claim for maintenance. The

appellant must in the circumstances

be deemed to have become full owner of

the properties notwithstanding that the compromise prescribed a limited interest

for her in the properties. It is sub-s.(1) and not sub-s.(2) of s. 14

\vhich must

be helct to be applicable on these facts.

S. S. Munna Laf v. S. S. Rajkun1ar, [1962] Supp. 3 SCR 418 GurnmaTapura

Teggina Matada Kotturaswami

v. Setra Verrayva [1959] Supp.

1" SCR 96&

Mangal Sb11?f1 v. Ratno, AIR 1967 SC 1786 Badri Pershad v. Sn1t. Kan~o Devi

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V. TULASAMMA v. V. SESHA REDD! 263

[1970] 2 SCR 95 Nirmal Chand v. Vidya Wanti (dead) by her Legal represen· A

tatives. C.A. No. 609' of 1965, decided on January 21, 1969, Rani Bai v.

Shd Yadunandan Ram, [1969] 3 SCR 789 referred to.

B. B. Patil, v. Gangabai, AIR J972 Born. 16, Sumeshwar Misra v. Swami

Nath Tiwari AIR 1970 Pat. 348, Reddayya v. Varapula Venkatar~iu AIR 1965

A.P. 66, Lakshmi Devi v. Shankar Jha, AIR 1%7 Mad. 429, N. Venkanagouda

v. Hanamangouda, AIR 1972 Mys. 286, Smt. Sharbati Devi v. Pt. Hiralal AIR

1964 Pb. 114, Sesadhar Chandra Dev. v. Smt. Tara Sundari Dasi, AIR. 1962

Cal. 438,

Saraswathi Ammal v. Anantha

Shenoi, AIR 1966 Ker. 66 nnd Kunii

l'homman v. Meenakshi, !LR [1970] 2 Ker. 45 approved.

Gurunadham v, Sundaraiulu, /LR [1968] 1 Mad. 467 Sentlumam v. Subra­

mania, !LR [1967] I Mad. 68, S. Kachapalaya Gurukkal v. V. Subramani

Gurukkal,

AIR 1972 Mad. 279

Shiva Puian 11.ai v. Jamune Missir, !LR [1947]

Pat. 1118 Gopisetti Kondaiah v. Gunda Subbrayudu, !LR [1968] A.P. 621, Ram

Jag Missir v. The Director of Consolidation, U.P. AIR 1975 All. 151 and Aiab

B

Singh v. Ram Singh AIR 1959 J&K 92 not approved. C

(per Fazal Ali, J concurring)

The High Court was in error in holding that the appellant would have only

a limited interest and in setting aside the alienations made by her. The com­

promise

by which the properties

were· allotted to her in lieu of her mairitenance

were merely in recognition of her pre-existing right of maintenance and, there­

fore, her case would be taken out of the ambit of

s. 14(2) and would fall with­

ins. 14(1) read with the Explanation thereto. [311 GJ

The incidents and characteristics of a Hindu woman's right to maintenance

are:

(i) that a Hindu

womm's right to maintena·nce is a personal obligation so

far as the husband is concerned, and, it is his duty to maintain her even if he

D

has no property. If the husband has property then the right of the widow to

n1aintenance becomes an equitable charge on his property and any person v./ho

suCteeds _ to the property carries with it the legal obligation to maintain the E

widow. [286 DJ

(ii) though the widow's right to maintenance is not a right to property but

it is a pre-existing right in_ property, that is, it is a jus ad reni and not jus in rem

and it cannot be enforced by the· widow who can get a charge created for the

maintenance

on the property either by an agreement or by obtaining a decree

from the

civil court. [286 E]

(iii) that the right of maintenance is a matter of moment ~ is of such

importan.ce that even if the joint property is sold and the purchaser has notice F

of the widow's right to maintenance, the purchaser is legally bound to provide

for her maintenance.

[286 F]

(iv) that the right to maintenance is a pre-existing right which existed in

the Hindu law long before the passing of the Act

of. 1937 or the Act of 1946,

and

is, therefore, a pre-existing right. [286 G]

(v) that the right to maintenance flows from the social and temporal rela­tionship between the husband and the wife b~ virtue of which the wife becomes G

a sort of co-owner in the property of her husband, though her co-ownership fs

of ,a Eubordinate nature. [286 H]

(vi) that where a Hindu widow is in possession of the property of her hus­

band, she is entitled to retain the possession in lieu of her maintenance unless

the person who succeeds to the property or purchases the same is tn a position

to make due arrangementS for her maintenance [287 A]

Digest of Hindu Law, Vol. II, pp. 121, 123 and 243 by Colebrooke. II

Hindu Law by Gopal Chandra Sarkar Sastri, p. 533. Treatise on Hindu

Law

& Usage

by Mayne, 11th edn. pp. 684, 813, 816, 822, Hindu Law by

Molla,

p. 591.

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264 SUPREME COURT REPORTS [1977] 3 S.C.R.

J

1larayan Rao Ramchandra Pant v. Ramabai, L.R. 6 I.A., 114, Lakshman

Ramchandra Joshi & anr. v. Satyabhamabai, J.L.R. 2 Born. 494, Narbadabai

v. Mahadeo Narayan, Kashinath Narayan and Shamabai, I.L.R. 5 Bom. 99,

Mst. Dan Kaur v. Mst. Sar/a Devi, L.R. 73 I.A. 208, Pratapmull Agarwal/a

v. Dhanabati Bibi, L.R. 63 I.A. 33, Rani Bai v. Shri Yadunandan Ram &: anr.

[1969] 3 S.C.R. 789, Sheo Dayal Tewaree v. Judoonath Tewaree (1898] 9 W.R.

61, Srinath Das v. Prabodh Chunder Das, 11 C.L.J. 580, Hemangini Dasi v.

Kedarnath Kundu Chowdhry l.L.R. 16 Cal. 758. K. V. Thangavdu v. The

Court

of Words, Madras [1946] 2 M.L.J. 143,

Sarojinidevi v. Subrahmanyam

J.L.R. 1945 Mad. 61, Jayanti Subbiah v. Alamelu Mangamma I.L.R. 27 Mad.

45 and Ye/lawa v. Bhimangavda J.L.R. 18 Born. 452 referred to.

An examination of the decisions of this Court establishes the following

principles of law:

(i) that the provisions

of s. 14 of the 1956 Act must be liberally construed

in order to advance the object of the Act which is to enlarge the limited

inte.

rest possessed by a Hindu widow which was in consonance with Lhe changing

temper of the times; [295A]

(ii) it

is manifestly clear that sub-s. (2) of s. 14 does not refer to any

transfer which merely

recognises a prHxistin_g right without creating or con­

ferring a ne;v title on the widow. This was clearly held by this Court in Badri

Pershad's case. [295B]

(iii) that the Act of 1956 has made revolutionary and far-reaching changes

in the Hindu society and every attempt should

be made to carry out the spirit

of the Act which has undoubtedly supplied a long felt need and tried to do

away with the invidious distinction between a Hindu male and female

in matters

of intestate succession. ( I295C]

(iv) that sub-s., (2) of

s. 14 is merely a proviso to sub-s.

(I) of s. 14 and

has

to be interpreted as a proviso and not in a manner so as to destroy the effect

of the main provision. I295D]

Thus on a conspectus of the Shastric Hindu Law, the provisions

of the

1956-

Act and the decisions of this Court the following conclusions emerge:

1. A Hindu female's right to maintenance is not an empty formality or an

illusory claim but

is a tangible right against property which flows from spiritual

relationship between the husband and the wife and

is recognised and enjoined

by pure Shastric

Hindu law and has been strongly stressed even by the earlier

Hindu jurists starting from Yajnavalkya

to Manu.

Such a right n1ay not be a

right to property

but is a right against property and the husband has a personal

obligation to maintain his

wife and if he or the family has property the female

has the legal right

to be maintained therefrom. If a charge is created for the

maintenance of a female, the said right becomes a legally enforceable one. At

any rate, even without a charge the claim for maintenance is a pre-existing

right so that any transfer de.claring

or recognising such a right does not confer

any new title but merely endorses or confirms the pre-existing rights.

[310 BC]

2. Section 14(1) and the Explanation thereto have been. couched in· the

widest possible terms and must be liberally construed in favour of the females

so as to advance the object of the 1956-Act and promote the socio-economic

ends sought to be achieved by this long needed legislation.

[3 l

OD]

3. Section 14(2) is in the nature of a proviso and has a field of its own

without interfering with the operation of

s. 14(1) materially. The proviso

should not be construed in a .manner so

as to destroy the effect of the main

provision or the protection granted by

s. 14(1) or in a way so as to become

totally inconsistent with the main

provision~ [310 E]

4. Section 14(2) applies to instruments, decrees, awards, gifts etc., which

create independent and new titles in favour of the females for the first time and

has no application where the instrument concerned merely seeks

to confirm,

endorse, dedare

or

recognise· pre-existing rights. In such cases a restricted

estate in favour

of a female is legally permissible and s. 14(1) will not operate

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v. TULASAMMA v. v. SESHA REDD! (Fazal Ali,].) 265

in this sphere. Where, however, an instrument merely declares or recognises a A

pre-existing right, such as to a claim to maintenance .. or partition or share to,

which the female· is entitled, the sub-section has absolutely no application and

the female's limited interest would automatically be enlarged into an absolute

-one by force of s. 14(1) and the restrictions placed, if any, under the document

·would have to be ignored. Thus where a property is allotted or transferred to

a female in lieu of maintenance or a share at partition, the instrum:erit is taken

.out of the ambit of sub-s. (2) and would be governed by s. 14(1) despite any

restrictions placed on the powers of the transferee. [310F-G]

~-The use of express terms like "property acquired by a female Hindu at a

·partition", "or in lieu of maintenance", "or arrears of maintenance" etc., in the

Explanation to s·. 14(1) clearly makes sub-s. (2) inapplicable to these cate­

gories which have been expressly excepted from the operation of sub-s.

(2). f310H]

B

6. The words "possessed by" in s. 14(1) aro of the widest amplitude· and C

include th~ state of owning a property even though the owner is not in actual or

_physical possession of the same. Thus, where a widow gets a share in the pro­

perty under a preliminary decree before or at the time when the 1956-Act had

been passed but had not been given actual possession under

a final decree, the

property would be deemed

to be possessed by her and by force of s. 14(1) she

would get absolute interest in the property. It is equally well-settled' tha.t the

possession of the widow, however, must

be under some vestige of a claim, right

or title, because the section does

not contemplate the possession of any rank

trespasser without any right or title. [311 A-Bl D

7. That the words "restricted estate" used ins. 14(2) are wider than limited

interest as indicated_in s. 14(1) and they include not only limited interest but

a]s() any other kind of limitation that may be placed on the transferee. [311 CJ

In the instant case, the properties in dispute were allotted to the appellant

under

a compromise certified by the Court. Secondly, the appellant had taken

only

a life interest in the properties and there was a clear restriction prohibiting E

her from alienating the properties. Thirdly, despite these restrictions, she conti­

nued

to be in possession of the properties till the alienations \Vhich she had

)l made in 1960 and 1961 were after she had acquired an absolute interest in the

properties.

•

Snu. Naraini Devi v. Smt. Ramo Devi & ors [1976] 1 S.C.C. 574 over­

ruled.

S. S. Munnalal v. S. S. Rajkumar [1962] Supp. 3 S.C.R. 418; Eramma v.

Verrupanna [1966] 2 S.C.R. 626; Mangal Singh v. Smt. Rattno [1967] 3 S.C.R.

454; Sukhram & anr. v. Gauri Shankar & anr. [1968] 1' S.C.R. 476; Badri

Parshad

v.

Smt. Kanso Devi [1970] 2 S.C.R. 95 and Nirmal Chand v. Vidya

Want/ (dead) by her Legal Representative C.A. 609 of 1966 decided on

January 21, 1969 referred to.

F

B. B. Patil v. Gangabai A.LR. 1972 Born. 16; Gaddam Reddayya v .

Varapu/a Venkataraju & Anr. A.LR. 1965 A.P. 66; Sumi!shwar Mishra v. Swami G

Nath Tiwari A.I.R. 1970 pat. 348; H. Venkanagouda v. Hansun1angouda A.LR.

1972 Mys. 286; Smt. Sharbati Devi v. Pt. Hirala/ & Anr. A.l.R. 1964 Punjab

114; Sasadhar Chandra Dev v. Snit. Tara Sundari Desi A.LR. 1962 Cal. 438,

approved.

Nareyan Patra v. Tara Patrani [1970] 36 Cuttack Law Times-A.l.R. 1970

Drissa 131; Shiva Pujan Rai & Ors. v. Jamuna Missir & Ors. I.L.R. 47 Pat.

1118; Gopisetti Kondaiah v. Gunda Subbarayudu I.LR. [1968] A.P. 621; Ram

Jag Misir v. The Director of Consolidation, U.P. AIR 1975 All. 151; Ajab

Singh & Ors. v. Ram Singh & Ors. A.I.R. 1959 J, & K. 92; S11r1U1dham v.

Sundararaju/u I.LR. [1968] 1 Mad. 567; Kachapalaya Gurukkal v. V. Subra­

mania Gurukkal A.LR. 1972, Mad. 279 not approved.

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266 SUPREME COURT REPORTS [1977] 3 S.C.R.

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1360 of 1968.

(Appeal by Special Leave from the Judgment and Order dated

22-11-1967 of the Andhra Pradesh High Court in Second Appeal

No.

804/64).

T. S. Krishnamurthi Iyer, R. K.

Pillai and R. Vasudev Pillai, for

B the appellants.

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T. V. S.

Narasimhachari, for the respondents.

The Judgment of P. N. Bhagwati and A.C. Gupta, JJ. was deliver­

ed by Bhagwati, J. S. Murtaza Fazal Ali, J. gave a separate opinion.

BHAGWATI, J.-We have had the advantage of reading the judgment

prepared by our learned brother S. Murtaza Fazal Ali and we agree

with the conclusion reached by him in that judgment but we would

prefer to

give our own reasons. The facts giving rise to

the· appeal

are set out clearly and ·succinctly in the judgment of our learned bro­

ther and we do not think it necessary to reiterate them.

The short question that arises for determination in thi's appeal is

as to whether it is sub-section (1) or sub-section (2) of section 14 of

the Hindu Succession Act, 1956 that applies where property is given

to a Hindu female in lieu of maintenance under an instrument which

in so many terms restricts the nature of the interest given to her in

the property.

If sub-section (1) applies, then the limitations on the

nature of her interest are wiped out and she becomes the

full owner of

the property, while on the other hand, if sub-section (2) governs such

a case, her limited interest

in the property is not enlarged and she

continues to have the restricted estate prescribed by the

fostrument.

The question is of some complexity and it has evoked wide diversity

of judicial opinion not only amongst the different High Courts but

also within some of the High Courts themselves.

It is indeed

unfor­

tunate that though it became evident as far back as 1967 that sub­

sections (1) and (2) of section 14 were presenting serious difficulties

of construction in cases where property was received by a Hindu female

in lieu of maintenance and the instrument granting such property

prescribed a restricted estate for her in the property and diver­

gence of judicial opinion was creating a situation which might well

be described as chaotic, robbing the law of that modicum of certainty

which if must always possess in order to guide the affairs of

men. the legislature, for all these years, did not care to step

in to

remove the constructional dilemma facing the courts and adopted an

attitude

of indifference and inaction, untroubled and unmoved by the

large number of cases on this point encumbering the

files of different

courts in the country, when

by the simple expedient of an amendment,

it could have silenced judicial conflict and put an end to needless

liti­

gation. This is a classic instance of a statutory provision which, by

reason

of its inapt draftsmanship, has created endless confusion for

litigants and proved a paradise for lawyers.

It illustrates forcibly the

need of an anthority or body to be set up by the Government or the

Legislature which would constantly keep in touch with the adjudicatory

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V. TULASAMMA v. v. SESHA REDD! (Bhagwati, J.) 267

a~thorities in the country as also with the legal profession and imme-A

dmtely respond by making recommendations for suitable amendments

whenever it is found that a particular statutory provision is, by reason

of mapt language or unhappy draftsmanship, creating difficulty

of

construction or is otherwise inadequate or defective or is not well

conceived and is consequently counter-productive of the resultit was

intended

to achieve. If there is a close inter-action between the adju­

dicatory

wing of the

State and a dynamic and ever alert authority or B

body which responds swiftly to the draw-backs and deficiencies in the

law in action, much of the time and money, which is at present ex­

pended in fruitless litigation, would be saved and law would achieve

a certain amount

of clarity, certainty and simplicity which alone can

make it

easily intelligible to the people.

Since. the determination of the question in the appeal turns on the c

true interpretation to be placed on sub-section (2) read in the context

of sub-section (1) of section 14 of the Hindu Succession Act, 1956,

it would be convenient at this stage to set out both tbe ·sub-sections

of that section which read

as follows :

"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 and not as a

I>

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 mar­

riage, or

by her own skill or exertion, or by purchase or by

prescription, or in any other manner whatever, and

also any

such property held by her as stridharas immediately before

the commencement of this Act.

(2) Nothing contained in sub-section

(1)

sh~ll 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."

Prior to the enactment of 'section 14, the Hindu law, as it was then in

operation, restricted the nature

of the interest of a Hindu female in

property acquired by her and even

as regards the nature of this restric­

ted interest, there

was great diversity of doctrine on the subject. The

Legislature, by enacting

sub-'section ( 1) of section 14, intended, as

pointed by this Court in S.S. Munna Lal v. S.S. Raikumar(') "to con-

vert the interest which a Hindu female has in property, however, res­

tricted

the nature of that interest under the Sastric Hindu law may be,

into absolute

estate". This Court pointed out that the Hindu Succes-

sion Act, 1956

is a codifying enactment and has made far-reaching

changes

in the structure of the Hindu law

of inheritance, and succes­

sion. The Act confers upon Hindu females full rights of inheritance

(!) [19621 Supp. 3 S.C.R. 418,

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268 SUPREME COURT REPORTS [1977) 3 S.C.R.

and sweeps away the traditional limitations on her powers of disposi­

tion which were regarded under the Hindu law as inherent

in her estate". Sub-section (1) of section 14, is wide in its scope and ambit

and uses language of great amplitude. It says that any property pos­

sessed by a female Hindu, whether acquired before or after the com­

mencement of the Act, shall be held by her as full owner thereof and

not as a limited owner. The words "any property" are, even with­

.out any amplification, large enough to cover any and every kind of

property, but in order to expand the reach and ambit of the section and

make it all-comprehensive, the Legislature has enacted an explanation

which says that property would include "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

pres­

cription, or in any other manner whatever, and also any such property

held by her as

stridhana immediately before the commencement" of

the Act. Whatever be the kind

of property, movable or immovable,

and whichever be the mode of acquisition, it would be covered by

sub­

section ( l) of section 14, the object of the Legislature being to wipe

out the disabilities from which a Hindu female suffered in regard to

ownership of property under the

old

Sastric law, to abridge the strin­

gent provisiO!lls against proprietary rights which were often regarded

as evidence of her perpetual tutelege and to recongnize her status as an

independent and absolute owner of property. This Court ha·s also

in a series of decisions given a most expansive interpretation to the

language of sub-section (

1) of section 14 with a view to advancing

the social purpose of the legislation and as part of that process,

cons­

trued the word's 'possessed or also in a broad sense and in their widest

connotation.

It was pointed out by this Court in Gummalepura Tag­

gina Matada Kotturuswami

v. Setra Veeravva(') that the words 'pos­

sessed of mean

"the state of owning or having in one's hand or power".

It need not be actual or physical possession or personal occupation

Of the property by the Hindu female, but may be possession in law. It

may be actual or constructive or in any form recognized by law. Ela­

borating the concept, this Court pointed out in Mangal Singh v.

Rattno(

2

)

that the section covers all cases of property owned by a

female Hindu although

she may not be in actual, physical or construc­

tive possession of the property, provided of course, that she has not

parted with her rights and is capable of obtaining po·ssession of the

property.

It will, therefore, be seen that sub-section (1) of section 14

is large in its amplitude and covers every kind of acquisition of

pro­

perty by a female Hindu including acquisition in lieu of maintenance

and where such property was possessed by her at the date of com­

mencement of the Act

or was subsequently acquired and possessed,

she would become the full owner of the property.

Now, sub-section

(2) of section 14 provides that nothing contain­

ed in sub-section ( 1) shall apply to any property acquirea by way of

gift or under a will or any other instrument

or under a decree or order

(l) [19591

Supp. I S.C.R. 968.

(2) A.LR.

1967

S.C. 1786.

A-·

•

V. TULASAMMA v. SESHA REDD! (Bhagwati, J.) 269

of a civil court or under an award where the terms of the gift, will A

or other instrument or the decree, order or award prescribe a restncted

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('). 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 bring-B

ing about change in the social and economic position of

WQmen 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

(I). 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).

Tlle langu-

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

property by a Hindu female under an i!lstrument 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 D

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 pro­

vision enacted in sub-section

(1), since in most of such case's, where

property

is allotted to the Hindu female prior to the 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 E

where property

is given to the Hindu female subsequent to the enact­

ment

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

(I) 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 F

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 frus­

trated and the

re(ormist zeal underlying the statutory provision would

be chilled. That surely could never have been the intention of the

Legislature in enacting sub-sectfon

(2). It is an elementary

rule of G

construction that

no provision of a statute should be construed in isola-

tion but it should be construed witb

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 H

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

(1) (1970] 2

S.C.R. 95.

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270 SUPREME COURT REPORTS [1977] 3 s.c.R.

right, under a gift, will, instrument, decree, order or award, the terms

of which prescribe a restricted estate in the property. This construc­

tional approach finds support in the decision in

Badri Prasad's case

(supra) where this Court observed that sub-sectipn (2)

"can come

into operation only if acquisition in any of the methods enacted there­

in is made for the first time without there being any pre-existing right

in the female Hindu

who is in possession of the

property". It may

also be noted that when the Hindu Succession Bill 1954, which ulti­

mately culminated into the Act,

was referred to a Joint Committee of

the Rajya

Sabha, clause 15(2) of the Draft Bill, corre'!Ponding to the

present sub-section

(2) of section 14, referred only to acquisition of

property by a Hindu female under gift or

will and it was subsequently

that the other modes

or acquisition were added so as to include acqui­

sition of property under an instrument, decree, order or award. This

circumstance would also

seem to indicate that the legislative intend­

ment was that sub-section

(2) should be applicable only to cases

where acquisition of property is made by a

Hindu female for the first

time without any pre-existing

right-a kind of acquisition

akin to one

under gilt or

will. Where, however, property is acquired by a Hindu

female at a partition or

in lieu of right of maintenance, it is in virtue

of a pre-existing right and such an acquisition would not be within

the scope and ambit of sub-section (2), even if the instrument, decree,

order

or award allotting the property prescribes a restricted estate in

the property.

This line of approach

fn the construction of sub-section (2) of sec­

tion

14

is amply borne out by the trend of judicial decisions in this

Court.

We may in this connection refer to the decision in Badri

Parasad's case (supra). The facts in that case were that one Gajju

Mal owning self-acquired properties died in

1947 leaving five sons

and a widow.

On August 3, 1950, one Tulsi Ram Seth was appoint­

ed by the parties as an arbitrator for resolving certain differences which

had ari'sen relating to partition of the properties left by Gujju Mal.

The arbitrator made his award on December

31,

1950 and under

clause 6 of the award, the widow was awarded certain properties and

it was expressly stated in the award that she would have a widow's

estate in the properties awarded to her. While the widow was in pos­

session of the properties, the Act came into force and tne question

arose whether on the coming into force of the Act, she became full

owner of the properties under sub-section (

1) or her estate in the

properties remained a restricted one under sub-section

(2) of section

14. This Court held that although the award gave a restricted estate

to the widow in the propertie's allotted to her, it was sub-section

(1)

which applied and not sub-section (2), because

inter alia the proper­

ties given to her under the award were on the basis of a pre-existing

right which she had as an heir ci her husband under the Hindu

Women's Right to Property Act,

1937 and not as a new grant made

for the first time.

So also in Nirmal Chand v. Vidya Wanti (dead)

by her leJ?al representatives(

1

), there was a regular partition deed

made on December

3, 1945 between Amin chand, a coparcener and

(1)

C.A. No. 609 of 1965, decided on January 21, 1969.

•

•

v. TULASAMMA v. SESHA REDD! (Bhagwati, J.) 271

Subhrai Bai, the widow of a deceased coparcener, under which a cer-A

tain property

was allotted to Subhrai Bai and it was specifically

pro­

vided in the partition deed that Subhrai Bai would be entitled only

to the user of the property and she would have no right to alienate

it in any manner but would only have a life interest. Subhrai Bai died

in 1957 subsequent to the coming into force of the Act after making

a will b~queathing the property in favour of her daughter Vidyawati.

The right of Subhrai Bai to bequeath the property by will was challen-B

ged on the ground that she had only a limited interest in the property

and her case was covered

by sub-section (2) and not sub-section (1).

This contention wa's negatived and it was held by this Court that

though

it was true that the instrument of partition prescribed only a

limited interest for Subhrai Bai in the property, that

was in

re~ognition

of the legal position which then prevailed and hence it did not bring

her case within the exception contained in sub-section

(2) of section C

14. This Court observed :

•

"If Subhrai Bai was entitled to a share in her husband's

properties then the suit properties must be held to have been

allotted to her in accordance with law. As the law tlien stood

she had only a life interest in the properties taken by her.

Therefore the recital in the deed in question that she would

have only a life interest in the properties allotted to her share

is merely recording the true legal position. Hence it is· not

possible to conclude that the properties in question were given

to her subject to the condition of her enjoying it for her life

time. Therefore the trial court as well as the first Appellate

Court were right in holding that the facts of the case do

not fall withins.

14(2) of the Hindu Succession Act,

1955."

It will be seen from these observations that even though the property

was acquired by Subhrai Bai under the instrument of partition, which

gave only a limited interest to her in the property, this Court held

D

E

that the case fell within sub-section (1) and not sub-section (2). The

reason obviously was that the property was given to Subhrai Bai in

virtue of a pre-existing right inhering in her and when the instrument F

of partition provided that s_he would only have a limited interest in

the property, it merely provided for something which even otherwise

would have been the legal position under the law as it then stood.

It

is only when property is acquired by a Hindu female as a new grant for

the first time and the instrument, decree, order

or award giving the

property prescribes the terms on which it is to be held by the Hindu

female, namely, as a restricted owner, that sub-section

(2) comes into G

play

arid excludes the applicability of sub-section (1). The object

of sub-section

(2), as pointed out by this Court in Badri Persad' s case

(supra) while quoting with approval the observations

made by the

Madras High

COjllrt in Rangaswami Naicker v.

Chi1111ammal('), is

"only to remove the disability of women imposed by law and not to

interfere with ~ontraets, grants or decree etc. by virtue of which a

woman's right was restricted" and. therefore, where property is acquir-H

ed by a Hindu female under the instrument in virtue of a pre-existing

(I) A.LR. 1964 Mad. 387.

A

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F

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27Z SUPREME COURT REPORTS [1977] 3 s.c.1<..

right, such as a right to obtaiu property ou partitiou or a right to

maiuteuauce aud uuder the law as it stood priqr to the enactmeut of

the Act, she would have uo more thau limited interest iu the property,

a provisiou iu the iustrumeut

giviug her limited

iuter~st iu the property

would be merely by way of record

or recoguitiou of the true legal

posi·

tiou aud the restrictiou ou her iuterest beiug a "disability imposed by

law" would be wiped out aud her limited iuterest would be eularged

uuder sub-'sectiou ( 1). But where property is acquired by a Hindu

female uuder au iustrumeun for the first time without auy pre-existiug.

right solely by virtue of the iustrumeut, she must hold it on the tenns

ou which it is giveu to her aud if what is giveu to her is a restricted

estate, it would uot be enlarged

by reasou of

sub-sectiou (2). The

controversy before us, therefore,

boils dowu to the narrow questiou

whether in the present case the properties were acquired

by .the apoe!­

lant uuder the compromise iu virtue of a pre-existiug nght or !hey

were acquired for the first time as a grant owing its origiu to the

compromise alone aud to uothing

else.

Now, let us cousider how the properties iu questiou came to be

acquired by the appellaut uuder the compromise. The appellant

claimed maiuteuauce out of the joiut family properties iu the hands 'of the r_espondeut who was her deceased husbaud's brother. The

claim

was decreed iu favour of the appellaut aud iu execution of the

decree for maiuteuance, the compromise

was arrived at between the

parties allotting the properties in question to the appellant for her

maiutenance and giving her limited interest in such properties.

Si nee

the properties were allotted to the appellaut in lieu of her claim for

maintenance, it becomes uecessary to consider the nature

of the nght

which a Hiudu widow has to be maintaiued out

of joint family estate.

It

fa settled law that a widow is entitled to maintenance out of her

deceased husbaud's estate, irrespective whether that estate may be it<

the hands of his male issue or it may be iu the hands of his copar­

ceners. The joint family estate in which her deceased husbaud had

a share

is liable for her maiutenauce and she has a right to be

main­

tained out of the joint family properties and though, as pointed out

by this Court in Rani Bai v. Shri Yadunanden Ram,(

1

)

her claim

for maintenance

is not a charge upon any joint family property uutil

she has got her maintenauce determiued and made a specific charge

either by agreement or a decree

or order of a court, her right is

"not

liable to be defeated except by transfer to a bona fide purchaser for

value without uotice

of her claim or even with uotice of the

claim

uu\ess the transfer was made with the intention of defeating her ri~ht".

The widow can for the purpose of her maintenance follow the joint

family property "into the hands of any oue who takes it as a volun­

teer or with uotice of her having set up a claim for maintenance".

The courts ha\!\! even gone to the length of taking the view that where

a

widow is in possession of any specific property for the purpose of

her maintenance, a purchaser buying with uotice of her claim is not

entitled to possession

of that property without first securing proper

m')ointeuance for her, vide Rachawa & Ors. v. Shiva:ranappa(

2

)

cited with approval iu Ranibai's case (supra). It is, therefore, clear

(I) [19691 3 S.C.R. 789.

(2) I.L.R. 18 Born.

679.

>

,

' . ~

)I

v. TULASAMMA v. V. SESHA REDD! (Bhagwati, J.) 2 7 3

that under the Sastric Hindn Law a widow has a right to be maintained A

out of joint family property and this right would ripen fufo' a' charge

if the widow takes the necessary steps for having her maintenance

ascertained and specifically charged in the joint family property and

even

if no specific charge is created, this

right would be enforceable

against ioint family property in the hands of a volunteer or a pur­

chaser taking it with notice

of her claim. The right of the widow to

be maintained is of course not a jus

in rem, since it does not give B

· her any interest in the joint family property but it is certainly jus ad

rem, i.e., a right against the joint family prop~rty. Therefore, when

specific property

is allotted to the widow in lieu of her claim for main­

tenance, the allotment would be in satisfaction of her

jus ad rem,

namely, the right to be maintained out of the joint family property.

It would not be a grant for the first time without any pre-existing

right in the widow. The widow would be getting

the property in C

virtue of . her pre-existing right, the instrument giving the property

being merely a document effectuating such pre-existing right and not

making a grant of the property to her for the first time without any

antecedent right or title. There is also another consideration which

is very relevant to this issue and it is that, even if the instrument

were silent as to the nature of the interest given to the widow in the

property and did not, in so many terms, prescribe that she would have

D

a limited interest, she would have no more than a limited interest in

the property

Ul)der the Hindu Jaw as it stood prior to the enactment

of the Act and hence a provision in the instrument prescribing that

she would have only a limited interest in. the property would be, to

quote the word's of this Court in Nirmal Chand's case (snpra), "mere-

ly recording the true legal position" and that would not attract the

applicability of sub-section (2) but would be governed

by sub-section E

( 1) of section 14. The conclusion is, therefore, inescapable that

where property

is allotted to a. widow under an instrument, decree,

order or award prescribes a

restricted estate for her in the property

and sub-section (2) of section 14 would have no application

in such

a case.

'

We firid that there are several High Courts which have taken F

the same view which

we are taking in the present case. We may men-

tion only a

few of those decisions, namely, B. B.

Patil v. Gangabai(

1

),

Sumeshwar Misra v. Swami Nath Tiwari,(

2

)

Reddayya v.

Varapula

Venkataraju,(') Lakshmi Devi v. Shankar Jha(4), N. Venkanegouda

v. Hanemangouda,(') Smf. Sharbati Devi v. Pt. Hiralal,(

6

) Sesadhar

Chandra Dev

v. Smt. Tara Sundari Dasi,(

7

)

Saraswathi Ammal v.

Anantha Shenoi(

8

) and Kunji Thomman v. Meenakshi(

9

). It is G

(!)A.LR. (1972) Bom. 16

(2) A.LR.

(1970) Pat. 348.

(3) A.LR. (1965) .A.P. 66

(4) A.LR. (1967) Mad. 429.

(5) A.LR. (1972) Mys. 286.

(6) A.LR. (1964) Pub. 114.

(7) A.LR. (1962) cal. 438. H

(8) A.LR. (1966) Ker. 56.

(9) I.L.R. (1970) 2 Ker. 45,

3-436SCI/77

274 SUPREME COURT REPORTS [1977] 3 S.C.R.

A

not necessary to refer to these decisions since we have ourselves dis-

cussed the question of construction

of sub-sections (1) and (2) of

section

14 on Principle and pointed out what in our view is the

correct construction

of these provisions. We may only mention that

_:,,.

the judgment of Palekar, J., as he then was, in B. B. Patil v. Ganga-

bai

(supra) is a well reasoned iudgment and it has our full approval.

•

B

The contrary view taken in Gurunadham v. Sundarajulu,(') Santha-

nam

v. Subramania,(2) S. Kachapalava Gurukkal v.

V. Subramania

Gurukkal(

3

), Shiva

Pujan Rai v. Jamuna Missir,(

4

) Gopisetti Kon-

daiah

v. Gunda Subbarayudu('), Ram Jag Misir v. The Director of

Consolidation,

U.P.(") and Ajab Singh v. Ram Singh (

7

)

does not,

in our opinion, represent the correct

law on the subject and these

cases must be held to be

wrongly decided.

c

In the circumstances, we reach the conclusion that since in the

present case the properties in question were acquired by the appell-

ant under the compromise in lieu or satisfaction of her right of main-

tenance, it

is sub-section (1) and not sub-section (2) of section 14

D

which would be applicable and hence the appellant

must be deemed

to have become

full owner of the properties notwithstanding that the

compromise prescribed a limited interest for her in

his properties.

We accordingly allow the appeal, set aside the judgment and decree

of the High Court and restore that

of the District Judge, Nellore.

The result

is that the suit will stand dismissed but with no order as

to costs.

!"::

FAzAL ALI, J. This is a defendant's appeal by special leave against

E

the judgment of the High Court of Andhra Pradesh dated November

22, 1967 and arises in the following circumstances.

Venkatasubba Reddy, husband of appellant

No. 1 Vaddeboyina

.,

Tulasamma-hereinafter to be referred to as 'Tnlasamma'-died in the ~

year 1931 in a state of jointness with his step brother V. Sesha Reddy

and left behind Tulasamma

as his widow.

On October 11, 1944 the

F

appellant Tulasamma filed a petition for mainteruii:ice in forma

pauperis against the respondent in the Court of the District Munsif,

Nellore. This application 'Was set e:xi parte on January 13, 1945 but

subsequently th~tition was registered as a suit and an ex parte

decree was pass against the r~ndent on June 29, l 946. On Oc-

tober 1, 1946 the respondent fil an interlocutory application for re-

cording a compromise alleged to have been arrived at between the

G

parties out of Court on April 9, 1945. The appellant Tulasamma •

opposed this application which was ultimately dismissed on October

16, 1946. An appeal filed by the respondent to the District Judge,

Nellore

was also dismissed. Thereafter Tulasamma put the decree

in

---

(I) I.L.R. (1968) 1 Mad. 487.

(2) I.L.R. (1%7) 1 Mad. 68.

(3) A.I.R. (1972) Mad. 279.

H

(4) I.L.R. (1947) Pat. 1118.

(5) I.L.R. (1968) A.P. 621.

(6) A.I.R. (1975) All. 151.

(7) A.1.R. (1969) J & K 9!

v. TULASAMMA v. v. SESHA REDD! (Fazal Ali, J.) 275

execution and at the execution stage the parties appear to have arrived A.

at a settlement out of Court which was certified by the Executing

Court

on July

30, 1949 under O. XXI r. 2 of the Code of Civil Pro­

cedure. Under the compromise the appellant Tulasamma was allotted

the.

Schedule properties, but was to enjoy only a limited interest

there-

in with no power of alienation at all. According to the tenns of the

compromise the properties were to revert to the plaintiff after the

death of Tulasamma. Subsequently Tulasamma continued to remain R

in possession of th<:l properties even after coming into force of the

Hindu

Succession Act, 1956-hereinafter to be referred to as 'the

1956

Act, or 'the Act of 1956'. By two registered deeds dated April

12,

1960 and May 26, 1961, the appellant leased out some of the

properties to defendants 2 & 3 by the first deed and sold some of the

properties

to defendant 4 by the second deed. The

plaintiff/resIJon­

dent filed a suit on July 31, 1961 before the District Munsiff, Nellore C

for a declaration that the alienation

made by the widow Tulasamma

were not binding on the plaintiff and could remain valid

only till the

life-time

of

the widow. The basis of the action; filed by the plaintiff

was that as the appellant Tulasamma had got a restricted estate only

under

the tenns of the compromise her interest could not be enlarged

into an absolute interest by

the provisions of the 1956 Act in view

of s. 14(2) of the said Act. The suit was contested by the appellant D

Tulasamma who denied the allegations made in the plaint and averred

that

by virtue of the provisions of

thf11956 Act she had become the

full owner

of the prOperties with absolute right of alienation and the

respondent

had no locus standi to file the present suit. The learned

Munsiff decreed the suit of the plaintiff holding that the appell1mt

Tulasan1ma got merely a limited interest in the properties which could

be enjoyed during her lifetime and that the alienations were not bind-E

ing

on the reversioner. Tulasamma then filed an appeal before the

District Judge Nellore,

who reversed the finding of the Trial Court,

allowed

the appeal and dismissed the plaintiff's snit holding that the

appellant Tulasamma had acquired

an absolute interest in the proper-

ties by virtne of

the provisions 0£ the 1956 Act. The learned Judge

further

held that sub-s. (2) of s. 14 had no application to the present

case, because

the compromise was an instrument iu recognition of a F

pre-existing right. The plaintiff/respandent went up in second appeal

to the High Court against the judgment of the District Judge. The

plea of

the plaintiff/respondent appears to have found favour with

the

High Court which held that the case of the appellant was clearly

covered

by s. 14 (2) of the Hindu Succession Act and as the

compro­

mise was an instrument as contemplated bys. 14(2) of the 1956 Act

Tulasamma could not

get an absolute interest under s. 14(1) of the G

Act. The High Court further held

that by virtue 0£ the compromise

the appellant Tufasamma got title

to the properties for the first time

and it

was not a question of recognising a

pre-existing right which she

had none

in view of the fact that her husband had died even before

the Hindu Women's Right to Property Act, 1937. We might further

add that the facts narrated above have not

been disputed by counsel

for the parties. H

The appeal

has been argued only on the

snb~tantial questions of

law

which tum upon the interpretation of sub-ss. (1) & (2) of s. 14

A

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276

SUPREME COURT REPORTS [1977] 3 S.C.R.

of the Hindn Succession Act, 1956. It is common ground that in this

case as also in the other connected appeals, the properties in suit were

allotted under a compromise or an instrument in lieu of maintenance.

It is also admitted that the appellant Tulasamma was in possession of

the properties at the time when the 1956 Act came into force. Finally

it

is also not disputed that the compromise did purport to confer only

a limited interest on the

widow restricting completely her power of

alienation.

We have now to apply the law on the facts mentioned

above. Similar points were involved in the other two appeals

Nos.

135 of 1973 and 126 of 1972. We have heard all the three appeals

together and in all these appeals counsel for the

parti.es have confined

their arguments only

to the questions of law without disputing the

findings of fact arrived at by the Courts below.

Thus the two points that fall for determination in this appeal may

be stated thus :

( 1) whether the instrument of compromise under which

the properties were

given to the appellant Tulasamma

before the 1956 Act in lieu

of maintenance falls

within

s. 14(1) or is covered by s. 14(2) of the

1956, Act and

(2) Whether a Hindu

widow has a right to property in

lieu

of her maintenance,

and if such a right is

conferred on her subsequently by way of maintenance

it would amount to mere recognition of a pre­

existing right or a conferment of

new title so as to

fall squarely within s. 14(2) of the 1956 Act.

There appears to be serious divergence

of iudicial opinion on the

subject and the High Courts have taken contrary

views on this point.

Some High Courts, particularly, Bombay, Punjab, Calcutta and Patna

have veered round

to the view that a right of maintenance claimed

by a Hindu

widow is a pre-existing right and any instrument or docu­

ment or transaction by which the properties are allotted

to· the widow

in lieu

of her maintenance would

on\y be recognition of a pre-existing

right and would not confer any

new title on the window. Following this

line

of reasoning the aforesaid High Courts have held that the proper­

ties allotted to the Hindu widow even though they conferred a limited

interest would fall clearly within

!he ambit of s. 14(1) of the 1956

Act by virtue o~ which the limited interest would be enlarged inio an

absolute interest on the coming into force of the 1956 Act. On the

other hand the Orissa, Allahabad, Madras and Andhra Pradesh High

Courts have tak;en a contrary view and have held that as the Hindu

widow's right tQ maintenance is not a right to property, property

allotted to her in lieu of maintenance confers on her a right or title to

the property for 'the first time and therefore such conferment

is protected

bys. 14(2) of 'the 1956 Act and is not covered bys. 14(1).

Unfor­

tunately, howe~er, there is no decision of this Court which is directly

in point, though there are some decisions which tend

to support the view taken by

1the Bombay High Court.

.. >.-

,

v. TULASAMMA v. v. SESHA REDDI (Fazal Ali, !.) 2 7 7

Before, however, resolving this important dispute it may be neces­

sary to consider the real legal nature of the incident of a Hindu

widow's right to maintenance.

In order to determine this factor

we

have to look to the concept of a ffindu marriage. Under the Shastric

Hindu Law, a marriage, unlike a marriage under the Mohammadan

Law which

is purely contractual in nature, is a sacrament-a religious

ceremony which results in

a sacred and a holy union of man and wife

by virtue of which the wife is completely transplanted in the house­

hold of her husband and takes a new birth as a partner of her husband

becoming a part and parcel of the! body of the husband. To-a Hindu

wife her husband is her God and her life becomes one of selfless ser­

vice and unstinted devotion and profound dedication to her husband.

She not only shares the life and love the joys and sorrows, the troubles

and tribulations of her husband but becomes an integral part of her

husband's life and activities. Colebrooke in

his book 'Digest of

Hindu Law' Vol.

II

describeS'th~ status of wife at p. 158 thus:

"A wife is considered as half the body of her husband,

equally sharing the fruit of pure and impure acts; whether

she ascend "the pile after him, or survive for the benefit of

her husband, she

is a faithful

wife."

This being the position after marriage, it is manifest that the law en­

joins a corresponding duty on the husband to maintain

his wife and

look after her comforts

and to provide her food and raiments. It is

A

B

c

D

well settled that under the ffindu1Law the husband has got a personal

obligation to maintain his wife and if he

is possessed of properties

R

then his wife is entitled as of right to be maintained out of such pro­

perties. The claim of a Hindu widow to be maintained is not an

empty formality which is to be .exercised as a matter of concession or

indulgence, grace or gratis or generosity but

is a valuable spiritual and

moral right which

flows from the spiritual and temporal relationship

of the husband

and wife. As the wife is in a

serue a part of the body

of her husband, she becomes co-owner of the proPerty of her husband p

though in a subordinate sense. Although the right of maintenance

does not per se create a legal charge on the proPerty of her husband,

yet the wife can enforce this right by moving the Court for passing a

decree for maintenance by creating a charge. This right is available

only so long

as the wife continues to be chaste. Thus the position is

that the right of maintenance may amount to a legal

charge if such a

,charge is created either by anl agreement between t.he parties or by G

decree.

There are a number of authorities which have taken the view that

even if the property

is transferred and the

tramferee takes the property

with notice of the right of

the widow to be maintained out of the

pro-H

perty, the purchaser takes the obligation to maintain the widow out of

the property purchased and the

wife or.

w!dow can follow the pro~erty

in the hands of the purchaser for the limited purpose of her mainte­

nance. We shall, however, deal with these authorities a little later.

278 • SUPREME COURT REPORTS (1977] 3 S.C.R.

A Colebrooke in his 'Digest of Hindu L,iw', Vol. II, quotes the Maha-

bharata at p. 121 thus : _ .

"Where females are honoured, there the deities are

pleased; but where they are unhonoirred, there all religious

acts become fruitless." · .

B

This clearly illustrates the high position which is

bestoweil on ;Hindu

. women, by the Shastric Law. Again Colebfooke in his book Vol. II at

p. 123, while describing the circumstances under which the mainte­

nance is to be given to the wife, quotes Manu thus :

c

D

E

"MANU :--Should a man have bnsiness abroad, Jet him

assure a

fit maintenance to his wife, and then reside for a

time in a foreign country; since a wife, even

thouglt virtuous,

may

be tempted to act amiss, if she be distressed by want of

subsistence :

·

While her husband, having settled her maintenance, ·

resides abroad, let her continue firm in religious austerities;

but if he leave no support, Jet her subsist by spinning and

other blameless arts."

This extract clearly shows that there is a legal obligation on the part

of the husband to make arrangements for his wife's due maintenance

even if he goes abroad for business purposes. Colebrooke again

quotes Yajnawalkya

at p. 243 of his book Vol. thus:

"When the father makes an equal partition among his

.sons, his wives must have equal shares with them, if they have

received

no wealth either from their lord or from his father.

If he makes an equal partition among his sons by his own

choice,

he must give equal shares to such of his wives

also_ as

bave·no·maJe issue.'~- · ' . _

F. This shows that when a partition is effected, the Hindu Law enjoins

that the wife must get

an equal share with the sons, thus reinforcing the

important character

of the right of maintenance which a Hindu

wife or

widow pOJSesses undet the Hindu Law. . ·.

G

H

Similarly Gopalchandra Sarkiir Sastri dealing with the nature and

incidents

of the Hindu widow's right to maintenance observes in his treatise 'Hindu Law' at p. 533 thus : ·

"When the husband is alive, he is personally liable for the

wife's maintenance, which is also a legal charge upon, his pro­

perty, this charge being a legal incident of her marital co-

ownership

in all

her husband's property ...... But after his

death, his widow's right

of maintenance becomes limited to his· estate, which, when it passes to any other heir, is charged

with the same. . . . . . . . . There cannot

be any doubt that

under Hindu law the wife's

or widow's maintenance is a legal

charge on the husband's estate; but the

·courts appear to hold,

. ----

v. TULASAMMA v. v. ~ESHA REDD! (Fazal Ali, !.) 2 79

in consequence o! the proper materials not being placed be- A

fore them, that it is not so by itself, but is merely a claim

against the husband's heir,

or an equitable charge on his es-

tate; hence the husband's debts are held to have priority, un-

less it is made a charge

on the property by a

decree."

The view of the author appears to be that .the Courts hold that the

right of maintenance of a widow does not amount to a legal charge and B

this

is so because proper materials werenot placed before the Courts.

In other words, the author seems to indicate that the original Hindu

Law contained clear provisions that the right

of, maintenance amounts

to a charge on tj:ie property of her husband and the obligation runs

with the property so that any person who inherits the property also

takes upon the obligation

to maintain the widow.

Sastri quotes from

the original texts various extracts regarding the nature and extent o~ C

the right of maintenance of the Hindu women some of which may

be

extracted thus :

"The support of the group of persons who should be

maintained, is the approved means of attaining heaven, but

hell

is the man's portion if they suffer; therefore he should

carefully maintain them.

· D

The father, the mother, the Guru

(an elderly relation

worthy of respect), a wife, an offspring, poor dependants, a

guest, and a religious mendicant are declared

to be the group

of persons who are

to be maintained.-Manu, cited in

Sn­

krishna's commentary on the Dayabhaga, ii, 23.

It is declared by' Manu that the aged mother and father,

the chaste wife, and an infant child must

be maintained even

by doing a hundred misdeeds,-Manu cited in the Mitak-

shara while dealing with

gifts."

The last extract clearly shows the imperative nature of the duty im­

posed on the owner of the property to maintain wife, aged mother,

father etc. even

at the cost of perpetrating a hundred misdeeds.

·

Similarly Sastri in his book quotes Yajnavalkya at p. 523 thus

"Property other than what is required for the mainten­

ance of the family may be given."'

The learned author highlights the importance of the right of

maintenance as being a charge on the property of the \husband and

observes as follows :

"The ancestral immovable property is the hereditary

source of maintenance of the members of the family, and the

E

F

G

same

is charged with the liability of supporting its members, H

all of whom acquire a right

to such property from the moment

they become members of the family,

by virtue of which they

are at least entitled

to maintenance out of the same.

Such

B

c

D

E

280 SUPREME COURT REPORTS [1977] 3 S.C.R.

•,

property cannot be sold or given away except for the· sup­

port of the family; a small portion of the same may

be alien­. ated, if not incompatible with the support of the family.

There &s no difference between the two schools as re­

gards the view that the ancestral property is charged with

the maintenance of the members of the family, and that no

alienation can

be made, which will 'prejudicially affect the

support of the group of persons who ought to be maintained.

Hence heirs are bound to maintain those whom the last

holder

Was bound to maintain."

The author further points out that under the Mitakshara law the

<laugher-in-law does, with her husband, acquire a right to the ancestral

property, since her marriage, but, she becomes her husband's co-owner

in a subordinate sense, and the principal legal incident of this owner­

ship is the right to maintenance, which cannot be defeated by gift

or

devise made by the holder of such property, Similar observations

have been made

by the learned author at p. 528 of the book which

may

~-extracted thus· : '

"According to both the schools, the lawfully wedded.

wife acquires from the moment of her marriage a right to

the property belonging to the husband at the time and also

to any property that may. subsequently

be acquired by him,

so that she becomes a

co-owner of the husband, though her

right is not co-equal to that of the husband, but a subordinate

one, owing

to her disability founded on her status of perpe­

tual or life long tutelege

or dependence.

This right of the wife to

maintenance from her husband

is not lost even if the husband renounce Hinduism.

F This right subsists even after the husband's death al-.

though her husband's right as distinguished from hers Illl!Y

pass by suvivorship or by succession to. sons or even to

collaterals; these simply step into the position of her hus­

band, and she is required by Hindu law

to live under their

guardianship after her husband's

death."

G Finally it is pointed out by the . learned author at p. 529 of the

Book that the right which a woman acquires to her husband's property

subsists even after his death and observed thus :

H

"According to both the schools, the right which a woman

acquires to her husband's property subsists after his death,

whether his interest passes by succession

or by survivorship

to the male issue

or any other person, and that this right

does not depend upon the widow's not possessing other

means of

support."

'

.~·

V. TULASAMMA v. v. SESHA REDD! (Fazal Ali, J.) 2 8 I

Summarising the nature of the liability of the husband to main­

tain

his wife, the learned author observed as follows at p. 533 of his

Book

:

"When the husband is alive, he is personally liable for

the wife's maintenance,

which is also a legal charge /upon

his property, this charge being a legal incident of her marital co-0wnership in all her husband's property. . . . . . . . But

after 'his death, his widow's right of maintenance becomes

limited to

his estate, which, when it passes to any other heir,

is charged with the same ......... There cannot be any

doubt that under Hindu

law the

Wife's or widow's mainten­

ance

is a legal charge on the husband's estate; but

ilie

Courts appear to hold, in consequence of the proper mate­

rials not being placed before them, that it

is not so by itself,

but

is merely a claim against the husband's heir, or an equi­

table charge on

his estate; hence the husband's debts are

held

to have priority, unless it is made a charge on

the pro­

perty by a decree."

A

B

c

To sump up, therefore, according to· Sastri's interpretation of D

Shast1ic Hindu Law the right to maintenance possessed by a Hindu

widow is a very important right which amounts to a charge on the

property

of her husband which continues to the successor

of the pro­

perty and the wife is regarded as a sort of co-owner of the husband's

property though

in a subordinate sense, i.e. the wife has no dominion

over the property.

Similarly Mayne in

his

"Treatise on Hindu Law & Usage", 11th

Edn., has traced the history and origin

of the right of maintenance of

a Hindu woman which according to him arises from the theory

of an

undivided family where the head

bf the family, is bound to maintain

the members including their

wives and their children. The. learned

author observes thus : (p. 813).

"The importance and extent of the right of maintenance

necessarily arises from the theory

of au undivided family.

The head of such a family is bound to maintain its members,

their

wives and their

Children, to perform their ceremonies

and to defray the expenses

of their

marriages;"

E

F

Again at p. 816 para 684 the author stresses the fact that the G

maintenance

of a wife is a matter of personal obligation on the part

of the husband and observes thus :

"The maintenance of a wife, aged parents and a minor

son

is a matter of personal obligation arising from the very

existence

of the relationship and quite independent of the

possession of any property, ancestral or acquired. . . . . . . . H

'It is declared by

Mann that the aged mother and father, the

chaste

wife and an infant child must be maintained even

by doing a hundred

misdeeds."

A

B

c

D

E

F

. ___ ...)--

282 SUPREME COURT REPORTS [1977] 3 S.C.R.

Again it has been observed at p. 818 para 687

"The maintenance of a wife by her husband is, of course,

a matter of personal obligation,

which attaches from the

moment of marriage."

·

• The author points out at p. 821 paragraph 689 that even after

the comi~g into force of the Hindu Women's Right to Property Act,

1937 which confers upon the widow a right of succession in respect

of

the non-agricultural property, she is still entitled to maintenance

from the

family property. The author observes thus :

''It cannot, therefore, be said that

the reason of the right

has ceased to exist

and the right is gone. It was accord­

ingly

held that the widow of a deceased coparcener is still

entitled to maintenance notwithstanding her right under the

Act

to a share in the non-agricultural part of the family

estate."

Furthermore, the anthor cites the passage of Narada cited in

Smriti Chandrika regarding which there is no dispute. The saying

runs thus :

"Whichever wife (patni) becomes a widow and continues

virtuous, she

is entitled to be provided with food and rai­

ment."

At p. 822 para 690 the author points out that the right of a widow

to be maintained is taken over even by the heirs of the husband who

succeed

to his property either by inheritance or by survivorship. In

this connection the following observations are made : "She is entitled to be maintained where her husband's

separate property is taken by his male issue. Where, at

the time of

his death, he was a coparcener she is entitled to

maintenance as against those who take her husband's share

by survivorship,"

The Hindu

law is so jealous in guarding the interests of Hindu

women that the obligation

for maintaining the Hindu wbinen falls

even on the King when he takes the estate

by escheat or by forfeiture,

Similarly Mulla in

his book

"Hindu Law", 14th Edu., describes

the incidents and characteristics

of Hindu wife's right to

maintenance

'G and observes thus at p. 597 :

H

"A wife is entitled to be maintained by her husband,

whether he

possesses property or not. When a man with

his

eyes open marries a girl accustomed to a certain style of

living, he undertakes the obligation of maintaining her in

that style. The maintenance of a wife by her husband is

a matter of personal obligation arising from the very exist­

ence

of the relationship, and quite indepeudent of the posses­

sion by the husband of any property, ancestral or self­acquired."

,

•

v. TULASAMMA v. v. SESHA REDD! (Fazal Ali, !.) 283

We might further mention that the Hindu women's right to maintenance

finally received statutory recognition and the entire law on the subject

was consolidated and codified

by the Hindu Married Women's Right

to Separate Maintenance and Residence Act,

19~6-hereinafter to be

referred to as 'the Act of 1946'-which came into force on April 23,

1946. Thus there appea1s to be complete unanimity of the various

~chools of Hindu law on the important incidents and indicia of the

Hindu women's right to maintenance which lras now received statutory

recognition and which only shows that the right to maintenance though

not an indefeasible right to property

is undoubtedly a pre-existing

right.

We shall now refer to some of the authorities which have dealt

with thiJ aspect of the matter.

In

Narayan Rao Ramchandra Pant v.

Ramabai('), the Judicial

Committee pointed out that the widow's right to maintenance arises

from the common 1'aw which developed from time to time. Justice

West of the Bombay High Court appears to have entered into a very

elaborate discussion of the entire law on the subject in

Lakshman

Ramchandra Joshi and Anr.

v.

Satyabhamabai(") and observed as

follows:

"These several authorities, no doubt, afford, in combi­

nation, a strong support to the proposition that a widow's

maintenance, especially

as against the sons, the a charge on

the estate, a right

in re in the fullest sense adhering to the

property, into whatever

!rands it may pass."

These observations were reiterated in a later case in Narbadabai v,

Mahadeo Narayan, Kashinath Narayan and Shamabai(

3

). The obser­

vations of West J., in

Lakshman Ramchandra Joshi

and Anr's case

(supra) were fully 'approved by the Judicial Committee in Mst. Dan

Kuer

v. Mst.

Sar/a Devi('), where it was observed :

"Rut, apart from this circumstance, the judgment of West

J., whose dissertations on Hindu Law must always com­

mand great esteem, contains an exposition of the law on this

point, and the rose is therefore rightly regarded as a lead­

ing authority on the question.

In the course of his judgment

that learned judge quotes with approval the

remark~ of Phear

J.,

in

Srimati Bhagabati v. Kanailal Mitter-(1872) 8 Ben.

L.R.

225-that

"as against one who lras taken the property

as heir, the widow has a right to have a proper sum for her

maintenance ascertained and made a charge on the property

in his hands.

She may 'also, doubtless, follow the property

for this purpose into the hands of anyone who takes it

as a

volunteer,

or with notice of her having set up a claim for

maintenance against the

heir" and that "when the property

(1) L.R. 6 I.A. 114.

(2) l.L.R. 2 Born. 494.

(3) I.L.R. 5 Born. 99.

(4) L.R. 73 I.A. 208.

A

B

c

D

E

F

G

H

A

B

c

D

E

F

G

H

284 SUPREME COURT REPORTS [J 977] 3 S.C.R.

passed into the hands of a bona fide pnrchaser without notice,

it cannot be affected by anything short of an already exist­

ing proprietary right; it cannot

be subject to that which is

not already a specific charge, or which does not contain all

the clements necessary for

its ripening into a specific

charge."

.

Summarising the entire position the Privy Council enunciated the

law

thus:

"The true rule of Hindu law in such matters would appear

to be as follows : Two obligations confront a join~t Hindu

family.

(!) The obligation to pay the debts

(for instance,

of the father) binding

on the family; and (2) the moral ob­

ligation

"to provide maintenance to the widows of the

family." The latter obligation would, under certain circum­

stances, ripen into a legal obligation,

as, for instance, when

a charge

is created on specific property of the

fumily either

by agreement or a decree of the court; that, so long as neither

of these two obligations has taken the form of a charge on

the family property, the obligation to pay the binding debts

will have precedence (as, for instance, in the course of the

administration of the estate) over mere claims of a female

member's maintenance, but, if either of these two obligations

assumes the shape

of a charge, it would

tab precedence

over the other."

In Pratapmull Aga1Wal/a v. Dhanabati Bibi,(') the Judicial Commit­

tee pointed out that while a mother may not be the owner of her

share until partition

is made and has no

pre-exi.Sting right with regard

to the share

in the property, but she has a pre-existing right for main­

tenance. This Court also has made similar observations in a

large

number of cases regarding the nature and extent of the Hindu

women's right to maintenance.

In Rani Bai v.

Sh~i Yadunandan

Ram & A nr, (') this Court, while dealing with a situation where a

widow claimed the right of maintenance but refused to hand over

possession of the property until she secured her proper maintenance,

observed

as follows :

"It cannot be disputed that the appellant who is the

widow of a pre-deceased son of Jangi Jogi was entitled to

receive maintenance

so long as she did not re-marry out

of the estate

of her father-in-Jaw. Although her claim for

maintenance

wa·s not a charge upon the estate until it had

been

fixed and specificaily charged thereupon her right was

not liable to be defeated except by transfer to a

bona fide

purchaser for value without notice of a claim or even with

notice of 'l claim unless the transfer was made wiith the in­

tention of defeating her right. The courts

in India have

taken the

view that where a widow is in

posse,;sion of a

specific property for the purpose of her maintenance a pur­

chaser buying with notice

of her claim is not

·entitled to

(I) L.R. 63 I.A. 33.

(2) [1969] 3 S.C.R. 789.

V. TULASAMMA v. v. SESHA REDDI (Fazal Ali, J.) 285

possession of that property without first securing proper

maintenance for her :

[vide Rachawa & others v. Shiva-

yogappa-I. L. R. 18 Born. 679] ...... In the present

case it

is difficult to understand how the appellant

could

be deprived of the possession of properties by a trespasser.

Moreover

she was presumably in possession of these pro­

perties in lieu

of her right of maintenance and could not

be deprived

of them even by Jugli Bai without first securing

proper maintenance for her out of the aforesaid

properties."

In Sheo Dyal Tewaree v. Judoonath Tewaree,(') the Calcutta ltigh

Court stressed the fact that although the widow may not be the

owner

of a share but she had a pre-existing right of maintenance.

Elucidating the nature and extent

of a right of a Hindu wife to

maintenance, the Calcutta High Court pointed out in

S~inath Das v.

Probodh ChulU!er Das(') than the right of maintenance is really

identified

with the husband's property right though of a subordinate

nature.

In Hemangini Dasi v. Kedarnath Kundu Chowdhury(

3

)

the

Privy

Council held that if the estate remained joint and undivided the

maintenance

of the mother remained a charge on the whole estate

and that any share that the

widow took in the property which was

equal to ihe share of a son was really in

lieu of maintenance for

which the e5tate was liable.

The position has been very succinctly stated and meticulously

analysed by a decision

of the Madras High Court in K.

V. _Thanga­

velu v. The Court of Wards, Madras,(') where, dealing with the

entire history of the matter and relying on various original texts of

the Hindu jurists, the Madras High Court pointed out that a cogent

ground for preferring the widow's claim

is to be found in her quali-

fied or subordinate co-ownership in the husband's property declared

by the

Mitakshara. The Court referred to verse 52 of

Vyavahara­

dhaya (chapter II) where the Mitakshara refers to Afjastamba's

Dharmasutra as follows :

"From marriage arises also jointness ( sahatwam) in the

holding of property ( dravyaparagraphestiu) ."

A

B

c

D

E

F

In an earlier case Sarojnidevi v. Subrahmanyam,(

5

)

the Madras

High Court held that even after the coming into force of the Hindu

Women's Right to Property Act, 1937,

which did not apply to G

agricultural lands, the right of the Hindu

widow to maintenance

~ · stood in tact and the widow was entitled to maintenance notwith­

standing her right under the Act to a share in the non-agricultnral

part of the family estate. To the same

effect is an earlier decision

(1) (1868) 9 W.R. 61.

(2) 11 C.L.J.

580.

(3) I.L.R. 16 cal. 768.

(4) (1946) 2 M.L.J. 143.

(5) I.L.R. 1945 Mad. 61.

H

A

B

c

D

E

F

G

H

286 SUPREME COURT REPORTS [1977] 3 S.C.R.

of the Madras High Court in Jayanti Subbiah v. Alamelu Man­

gamma(')

where the High Court pointed out that under the Hindu

Law the maintenance

of a wife by her husband is a matter of per­

sonal obligation arising from the

very existence of her relationship

and quite independent

of the possession by the husband of any pro­

perty ancestral or self-acquired.

We fully agree with this exposition

of the law which

is supported by a large number of authorities as

discussed above.

In Yella'wa v. Bhimangavda(

2

), the Bombay High Court was

of the view that even the heir of the husband's property could not

be allowed to recover possession from the

widow without first

mak­

ing proper arrangements for her maintenance. This case was ap­

proved by this Court in

Rani Bai's case (supra).

Thus on a careful consideration and detailed analysis

of the

authorities mentioned above and the Shastric Hindu Law on the sub­

ject, the following propositions emerge with respect to the

Incidents

and characteristics of a Hindu woman's right to maintenance :

(1) that a Hindu woman's right to maintenance

is a

personal obligation so far

as the husband is

con­

cerned, and it is his duty to maintain her even if

he has no property. If the husband has property

then the right of the widow to maintenance be­

comes an equitable charge on his property and any

person who succeeds to the propertv carries with it the

legal obligation to maintain the widow;

(2) though the widow's right to maintenance

is not a

right to property but

it is undoubtedly pre-existing

right in property, i.e. it

is a jus ad rem

not jus in

rem and it can be enforced by the widow who can get

a charge created for her maintenance

on

the nroperty

either by an agreement or by obtaining a decree from

the civil court;

(3) that the right

of maintenance is a matter of moment

and

is of such importance that even if the ioint pro­

perty

is sold and the purchaser

ha' notice of the

widow's right to maintenance, the purcha,er is legally

bound to provide for her maintenance;

( 4) that the ri!!ht to maintenance is undouhte<llv a pre­

existing right which existed in the Hindu l,aw long

before the passing of the Act

of 1937

or •he Act

of 1946, and

is, therefore, a pre-existing right;

( 5) that the right

to maintenance flows from the

wcial

and temporal relationshin between the hu•band and

the

wife by virtue of which the wife becomes a sort

(1) I.L.R. 27 Mad. 45.

(2) I.L.R. 18 Bom. 452.

......

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v. TULASAMMA v. V. SESHA REDD! (Fazal Ali, J.) 287

of co-owner in the property of her husband, though A

her co-ownership

is of a subordinate nature; and

(6) that

where a Hindu widow is in possession of the

property

of her husband, she is entitled to retain

the possession

in lieu of her maintenance unless the

person who succeeds to the property or purchases

the

same is in a position to make due arrangements B

for her maintenance.

With this preface

regarding. a Hindu woman's right to mainten-

ance and the necessary concomitants and incidents

of those rights,

we now proceed to determine the question of law that arises for con­

sideration

in this appeal. Before taking up that question, I might

trace

the historical growth of the legislation introducing slow and c

gradual changes in the Shastric Hindu Law from time to time. The

exact

origm of Hindu Law is steeped and shrOjUded in antiquity and,

therefore, it

is not possible to determine the ethics or justification for

assigning a somewhat subordinate position to a Hindu

woman in

matters of inheritance, marriage and the nature

of the

Iimitep interest

which she took even after inheriting her husband's property. It is

also strange that the Hindu Law made no provision for divorce at all. D

This

may be

due to the fact that during the time of Manu and Yaj­

navalkya

the structure of the Hindu society was quite different

and

there being no social problem of the magnitude that we have today,

it

was not considered necessary to break up the integrity and soli­

darity of a Hindu

family by allowing ownership rights to the Hindu

females. Another object may have been to retain the famjly

pro­

perty within the family in order to consolidate the gains which a E

particular

family may have made. However, these are matters of

speculation. But

one thing is clear, namely, that the Hindu jurists

were

very particular in making stringent provisions safeguarding the

maintenance of the Hindu

females either by the

husband or even by

his heirs after his death. Perhaps they thought that the property

which a widow may receive in lieu of maintenance or the expenses

which may be incurred for her maintenance would be a good substi-F

tute

for the share which she might inherit in her

husbfod's pro­

perty. Nevertheless, t!)e Legislature appears to have stepped in

from time to time to soften the rigours of the personal

law of Hindus

by adding new heirs, conferring new rights on Hindu

femafes and

making express provisions

for adoption, maintenance etc. It appears

that the question

of conferring absolute interest on the Hiridu female

had engaged the attention of the Legislature ever since 1941 but G

the idea took a tangible shape

only in 1954 when the Hindu Succes-

sion Bill was introduced and eventually passed in 1956. This Bill

was preceded by a Hindu Code Committee headed by Mr. B. N.

Ran who had made a number of recommendations which

formed the

basis of the 1956 Act.

After the attainment of independence, the entire perspective H

changed, the nature of old human values assumed a new complexion

and the

need for emancipation of womanhood from feudal bondage

became all the more iniperative.

Under the strain and stress of

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288 SUPREME COURT REPORTS [1977] 3 S.C.R.

socio-economic conditions and a continuous agitation by the female

Hindus

for enlargement of their rights a new look to the rights of

women

as provided by. the

Shastric Hindu Law had to be given. I.n

pursuance of these social pressures, it was necessary to set up a

new social order where the women should be given a place of honour

and equality with the male

sex in every other respect. This was

the prime need of the hour and the temper of the times dictated the

imperative necessity of making revolutionary changes

in the Hindu

Law in order to abolish the invidious distinction

in matters of inheri­

tance between a

male and a female. Similarly it was realised that

there should be express provision for divorce on certain specified

grounds inasmuch

as the absence of such a provision had perpetrated

a serious injustice to the Hindu females for a long time.

It seems

to me that it was with this object in view that the

Legir;lature of our

free country thought it

as its primary duty to bring forth legislation

to remove the dangerous anomalies appearing in the Hindu taw.

Even during the British times, there were certain legislation modify­

ing certain provisions of the Hindu Law, e.g., the Hindu

Law Inheri­

tance Act which added a

few more heirs including some females; the

Hindu Women's Right to

Property Act, 193 7, which provided that on

partition a widow would be entitled to the same share

as the sons

in the property of her husband. The Act

of 1937, while giving a

share to the

wife on partition had not disturbed her right to claim

maintenance which

was preserved in tact and although she was not

permitted to sue for partition she

was undoubtedly entiled to sue for

maintenance without having recourse to the remedy

of partition. After

independence the

Parliament passed the Hindu Minority and Guardian­

ship Act, 1956; the Hindu Adoptions and Maintenance Act, 1956; the

Hindu Marriage Act, 1956 which regulated the law

of marriage

and

divorce and ultimately the Hindu Succession Act, 1956 which pro­

vided for intestate succession. The Hindu Succession Act, 1956

was,

therefore, undoubtedly a piece of social legislation which fulfilled a

long felt need

of the nation and was widely acclaimed by the entire

people

as would appear from the debates which preceded the passing

of the Act.

It is in the light of these circumstances that we have now to in­

terpret the provisions

of s. 14(1) & (2) of the Act of 1956.

Section

14 of the 1956 Act runs thus :

"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 and not as a

limited owner.

Explanation.-In: this ~uh-section, "property" includes

both movable and immovable property acquirect 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

per$on, whether a relative or not, before, at or after

her marriage,

or by her own skill or exertion, or by purchase

'

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•

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v. TULASAMMA v. v. SESHA REDD! (Fazal Ali,!.) Z89

or by prescription, or in any other manner whatsoever, and A

also an.y such property held by her as stridhana immediate-

ly before the c.ommencement 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 court

or under

an award where the

{erms of the gift, will or other

instrument or the decree, order or award prescribe a restricted

estate in such property."

This Court has interpreted the scope and ambit of s. 14(1) and the

Explanation thereto on several occasions and has pointed out that

B

the object of the legislation was to make revolutionary and far-reaching

changes

in the entire structure of the Hindu society. The word

"pas-C

sessed" used in s. 14(1) has also been interpreted by this Court and

it has been hdd that the word has been used in a very wide sense so

as to 1lld~de the st•ate of owning or having the property in one's power

and it is not necessary for the application of s. 14( 1) that a Hindu

woman should be in actual or physical possession of the property.

It is

sufficient if she bas a right to the property and the said property is in

her power or domain. In S. S. Munnalal v. S. S.

Rajkumar(') it was D

held that mere declaration of the share of the widow passed only an

of her share under a preliminary decree would fall within the ambit

of

s. 14(1) and even though the widow did not get actual possession

of the property

until a final decree is passed she would in law be deemed

to

be in possession of the proper,ty. In that case, the High Court had lteld that mere declaration of the share of the widow passed only an

inchoate interest to her

and she never came to possess the share within E

the meaning of s. 14 of the Act and therefore the property remained

joint

family property. This G,ourt reversed the judgment of the High

Court holding that once a preliminary decree

was passed in favour

of the

widow granting her a share in the property she must be deemed

to be in possession of the property· in question. Their Lordships

emphasised that the words

"possessed b'y" used in s. 14(1) clearly

indiCllted that such a situation was envisaged by the Legislature. While F

interpreting the provisions of

s. 14 the Court also pointed out that the

1956 Act

was a codifying enactment which had made far-reaching

changes

in the structure of the Hindu society

aiid the object was to

sweep away traditional limitations placed on the rights of the Hindu

women. Jn this connection, the Court observed as follows :

"The Act is a codifying enactment, and has made far- G

reaching changes

in the structure of the Hindu law of inheri-

tance, and succession. The Act confers upon Hindu

females

full rights of inheritance, and sweeps away the traditional

limitations on her powers of dispositions which were regarded

under the Hindu law as inherent in her estate .......... .

Normally a right declared

in an estate by a preliminary

decree

would be regarded as property, and there is nothing H

in the context in which s. 14 occurs or in the phraseology

(1) [1962]

Supp. 3 S.C.R. 418.

4-436SCI/77

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290 SUPREME COURT REPORTS [1977] 3 S.C.R.

used by the Legislature to warrant the view that such a right

declared in relation to the estate

of a joint family in favour

of a Hindu

widow is not property within the

· meaning of

s. 14. In the light of the scheme of the Act and its evolved

purpose it would be difficult, without doing violence to the

language used in the enactment, to assume that a right de­

clared

in property in favour of a person under a decree for

partition

is not a right to property. If under a preliminary

decree the right in favour of a Hindu male be regarded

as

property the right declared in favour of a Hindu female

must also

be regarded as property.

Earlier the Court observed

in that very case

as under :

"By s. 14 ( 1) the Legislature sought to convert the interest

of a Hindu

fell1'ale which under the Sastric Hindu Jaw would

have been regarded

as a limited interest into an absolute

interest

•and by the explanation thereto gave to the expression

"property" the widest connotation. The expression includes

property acquired by a Hindu female by inheritance or de­

vise, or at a partition, or in lieu of maintenance or arrears

of maintenanse, 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. By

s. 14(1) manifestly it is

intended to conve.rt the interest which a Hindu

female bas

in property however restricted "the nature of that interest

under the Sastric Hindu law may be into absolute estate."

The matter was again considered by this Court in Eramma v. Ver­

rupan1111 (') where it was held that before a widow can get absolute

interest under

s. 14 (1) she must have some vestige of title, i.e. her

possession must be under some title or right and not be that of a rank

trespasser.

In this connection the Court observed as follows :

"The property possessed by a female Hindu, as contem­

plated in the section,

is clearly property to which she has

acquired some kind of title whether before or after the com­

mencement of the Act.

It may be noticed that the Explana­

tion to

s. 14 (1) sets out the various modes of acquisition of

the property by a female Hindu and indicates that the

section applies only

to property to which the female Hindu

ha' acquired some k;nd of title however. restricted the nature

of her interest may be

.......... It does not in any

way

confer a title on the female Hindu where she did not in fact

possess any vestige of title.' It follows, therefore, that the

section cannot be interpreted so

as to validate the illegal

possession of a female Hindu and it does not confer any

tfrle

on a mere trespasser. Jn other words. the provisions of

s. 14( I) of the Act cannot be attracted in the case of a

Hindu female

who is in possession of the property

_of the last

(I) [1956] 2 S.C.R. 626.

Y.

v. TULASAMMA v. v. SESHA REDD! (Fazal Ali, J.) 291

male holder on the date of the commencement of the Act A

when ·she is only a trespasser without any right to property."

Jn Mangat Singh v. Smt. Rattio(') a widow came into possession

of her husband's property in 1917 and continued to be in possession

<>f the same till 1954 when she was dispossessed by a collateral of her

husband under the orders of the Re,venue authorities. She

filed a suit for recovery of possession and during the pendency of the suit the

Act of 1956 came into force. This Court upholding the judgment of

the High Court held that the dispossession of the widow being illegal,

she must be deemed to be, in the eye of law, to continue in possession

of the properties and acquired an absolute mterest with the coming

into force of the Act

of 1956. It was not a case where a Hindu

female had parted with her right so

as to place herself in a position

where she could in

no

manner exercise her rights iri that property any

longer when the Act came into force. This Court observed as

follows :

"It is signifiC'ant that the Legislature begins s. 14 ( 1)

with the words "any property possessed by a female Hindu"

and not "any property in possession of a female Hindu." If

the expression used had been "in possession of" instead of

"possessed by'', the proper interpretation would probably have

been

to hold that, in order to apply this provision, the pro­

perty must be such

as is either in actual possession of the

female Hindu or in her constructive possession. The con­

structive possession may be through a lessee, mortgagee,

licensee, etc. The use

of the expression

"possessed by"

instead of the expression "in possession of", in our opinion,

was intended to enlarge the meaning of this expression. It

is commonly known in English language that a property is

said to be possessed by 'a person, if he is its owner, even

though he may, for the time being, be out

of actual possession

or even constructive

possession."

"It appears to us that the expression used ins. 14(1) of

the Act

was intended to cover cases of possession in law also.

where lands may have descended

to a female Hindu and she

hoas not actually entered into them. It would of course cover

the other cases of actual or constructive possession. On the

language of

s. 14(1), therefore, we hold that this provision

will become applicable to any property which is owned by a

female Hindu, even though she

is not in actual physical or

constructive possession of that

property." •

Again, while referring to an earlier case, namely, Eramma v.

Verrupanna (supra), the Court clarified the position Thus :

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"This case also, thus, clarifies that the . expression

"'possessed by" is not intended to apply to a case of mere

possession without title, and that the legislature intended

this J?rDVision far ca~es where the Hindu female possesses H

_ ___t!l."_nght of owqership of the property in question. Even

(1) [19671 3 s.c.R. 454.

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292 SUPREME COURT REPORTS (1977] 3 S.C.R.

mere physical possession of the property without the right

of ownership

will not attract the provisions of this section.

This case, also, thus, supports our view that the expression "possessed by" was used in the sense of connoting state of

ownership and,

while the Hindu female possesses the right of

ownership,

_she would become full owner if the other condi­

tions mentioned

in the section are fulfilled. The section will,

however, not apply at all to cases where the Hindu female

may have parted with her rights so

as to place herself in a

position where she could, in no manner, exercise her

rights

of ownership in that property any longer."

In Sukhram & Anr. v. Gauri Shanker & Another(') the facts

were

as follows :

Hukam Singh and Sukh Ram were two brothers. Chidda, the

second appellant

was the son. of

Sukh Ram and thus Chidda, Hukam

Singh and Sukh Ram were members of a joint Hindu family govern­

ed by the Benares

Sch_ool of Mitakshara Law. Hukam Singh died in

1952 leaving behind his widow Krishna Devi. On December 15, 1956,

Krishna Devi sold half share of the house belonging to the joint family.

This sale was challenged by the other members of the joint family on

the gronnd that Krishna Devi had merely a life interest. The question

raised

was whether Krishna Devi acquired an absolute interest in the

properties after coming into force of the Hindu Succession Act, 1956.

[t

was argued before this Court that according to the Benaras School,

a male coparcener

was not entitled to alienate even for value his

undivided interest in the coparcenary without the consent of other co­

parccners and, therefore, Krishna Devi could not have higher rights

than what her husband possessed. This Conrt, however, held that

in view

of the express words of.s. 14 of the 1956 Act, once the widow was

possessed of property before or after the commencement of the Act,

she held it

as full owner and not as a limited owner and, therefore, any

restriction placed by Shastric Hindu Law was wiped out by the legis­

lative intent as expressed in

the Act of 1956. The Court observed

thus:

"But the words of s. 14 of the Hindu Succession Act are

express and explicit; thereby a female Hindu possessed of ·

property whether acquired before or after the commencement

of the Act holds it

as full owner and not as a limited owner.

The interest to which Krishna Devi became

e.ntitled on the

death of her husband nnder

s. 3(2) of the Hindn Women's

Right to

Prope!'ly Act, 1937, in the property of the joint

family

is indisputably her

"property" within the meaning of

s. 14 of Act 30 of 1956, and when she became "full owner"

of that property she acquired right unlimited in point of user

and duration and uninhibited in point of disposition."

(!) [19681 I S.C.R. 476.

y

V. TULASAMMA v. v. SESHA REDD! (Fazal Ali,!.) 293

This case indirectly supports the view that if the intention of the A

Legislature

was to confer absolute interest on the widow, no limitation

can be spelt out either from. the old Shastric Law or otherwise which

may be allowed to defeat the intention. This Court went

to the extent

of holding that the words

in s. 14 ( 1) are so express and explicit that

the

widow acquired a right unlimited in point of user, though a male

member governed

by the Benaras school had. no power of alienation

without the consent of other coparceners.

Under the Act the female B

had higher powers than the male because the words of the statute did

not contain any limitation at

all.

On the parity of reasoning, there­

fore, where once a property

is given to the widow in lieu of mainten­

ance and she

enters into possession of that property, no amount of

restriction contained in the document can prevent her from acquiring

absolute interest in the property because the contractual restriction can-

not be higher than the old Hindu Shastric Law or the express words of C

the Act of 1956.

In

Badri

Prashad v. Smt. Kanso Devi(!) the prepositer died in

194 7 leaving behind

five sons and a widow.

Soon after his death

disputes arose between the parties and the matter was referred to an

arbitrator in 1950. The arbitrator in his award allotted shares to the

parties wherein it

was stated that the widow would only have widow's D estate in those properties. While .the widow was in possession of the pro­

perties, the Act of 1956 came into force and the question arose whet-

her

or not she became full owner of the property or she only had a

restricted interest

as provided in the grant, namely, the award. This

Court held that although the award had given a restricted, estate, but

this was only a narration of the state of law

as it existed when

the

award was made. As the widow, however, inherited the property E

under the Hindu Women's Right

to Property Act, her interest

be~

came absolute with the passing of the Act of 195 6 and she squarely

fell within the provisions of s. 14 ( 1) of the Act. It was further held

that

th.e mere fact that the partition was by means of an award would

not bring the matter withins. 14(2) of the Act, because the interest

given to the widow was on the basis

of pre-existing right and not a

new grant for the first time. This Court observed

as follows : F

"The word "acquired" in sub-s. ( 1) has also to be given

the widest possible meaning. This would be so because of

the language of the Explanation which takes sub-s. (1) ap­

plicable to acquisition of property by inheritance or devise

or at a partition or

in lieu of maintenance or arrears of maintenance or by gift or by a female's own skill or exertion

or by purchase or prescription

or in any manner whatsoever.

Where

at the commencement of the Act a female, Hindu has

a share

in ioint properties which are later on partitioned by

metes and bounds and she gets possession of the properties

al!otted to her there can

be no manner of doubt that she is

not only possessed of that property at

th~ time of the comirig

into force of the Act but has also acquired the same before

its commencement."

(1) [1970] 7. S.C.R. 95.

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294 SUPREME COURT REPORTS E19.77J 3 S.C.R.

A This Court relied upon two earlier decisions : viz., S. S. · Munnalal's

case and Sukhram's case (supra). This case appears to be. nearest to

the point which falls for determination in this appeal, though it does

not cover the points argued before us directly.

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Lastly our attention was drawn to an unreported decision of this.

Court in

Nirmal Chand v. Vidya Wanti (dead) by her legal

represen­

tatives(') in which case Amin Chand and Lakhmi Chand were the

owners of agricultural and non-agricultural properties. The properties

were partitioned in the year 1944 and Lakhmi Chand died leaving be­

hind him the appellant and his second wife Subhrai Bai and his-daughter

by this, wife. There was a regular partition between Amin Chand and

Subhrai Bai by a registered document dated December 3, 1945 under

. which a portion of the property was allotted to Subhrai Bai and it was

proYided in the document that Subhrai Bai would be entitled only to

the user of the land and she

will have no right to alienate it in any

manner but will have only life interest. Later,

Subhrai Bai bequeathed

the property

in 1957 to her daughter Vidya Wanti.

Subhrai Bai died

and Vidya Wanti's name was mutated in the papers alter coming into

force. of the Act of 1956. The point raised before the High Court

was tljat as Subhrai Bai had been given only a limited interest in the

property she had no power to bequeath the property to her daughter

as her case was not covered by s. 14(1) but fell under s. 14(2) of

the Act. This Court pointed out that at the time when the' property

was allotted to Subhrai Bai, the Hindu Succession Act had not come

into force and according to the state of, Hindu Law as it then prevailed

Subhrai Bai was undoubtedly entitled only to a limited interest. There

was a restriction in the partition deed that Subhrai Bai would enjoy

usufruct of the property only and shall not be entitled to make any

alienation.

It

was· not a restriction as such but a mere statement oll

law as it then prevailed. Such a restriction, therefore, would not

bring the case of Subhrai Bai under

s. 14(2) of the Act and, therefore,

she would acquire

an absolute interest after the passing of the Act of

1956 and was, therefore, competent to execute the

will in favour of

her daughter. This Court observed

as follows :

"If Subhrai Bai was entitled to a share in her husband's

properties then the suit properties must be held to have been

allotted to her

.in accordance with law. As the law then

stood she had only a life interest

in the properties taken by

her. Therefore the recital

in the deed in question that she

would have only a life interest

in the properties allotted to her

share

is merely recording the true legal position. Hence it is

not possible to conclude that the properties

in question were

given to her subject to the condition of her enjoying it for

her lifetime. Therefore the trial court

as well as the first

Ap­

pellate Court were right in holding that the facts of the case

do not fall within

s. 14(2) of the Hindu Succession Act,

1956.

In the light of the above decisions of this Court the following

prin•

ciplcs appea1' to be clear :

(1) C.A. No. 609of1965 decided on Jan. 21, 1969.

V. TULASAMMA v. V. SESHA REDD! (Fazal Ali, J.) 295

(1) that the provisions of s. 14 of the l 956 Act must

be liberally construed

in order to advance the object

of the Act which

is to enlarge the limited interest pos­

sessed by a Hindu widow

which was in consonance

with the changing temper of the times;

(2) it

is manifestly clear that sub-s. (2) of s. 14 does

not refer to any transfer which merely recognises a

pre-existing right withont creating or conferring a new

title on the

widow. This was. clearly held by this

Court

in

Badri· Parshad's case (supra).

_(3) that the Act of 1956 has made revolutionary and far­

reaching changes in the Hindu society and every at­

tempt should be made to carry out the spirit of the

Act which has undoubtedly supplied a long felt need

and tried to do away with the invidious distinction

between a Hindu male and female

in matters of

intestate succession;

(4) that sub-s. (2) of

s. 14 is merely a proviso to sub-

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s. ( 1) of s. 14 and has to be interpreted as a proviso D

and not

in a manner so as to destroy the effect of the.

main provision.

We· have given our anxious consideration to the language of s.

14(1) & (2) and we feel that on a proper interpretation of s. 14(2)

there does not appeaii to be any real inconsistency betweens. 14(1),

the explanation thereto and sub-s. (2). To begin with, s. 14(1) does

not limit the enlargement of the estate of a Hindu widow to any

particular interest in the property. On the other hand the Explanation

to s. 14 ( 1) brings out thereal purpose of s. 14 (1) by giving an exhaus-

tive category of cases where principle of s. 14(1) has to operate, i.e.

to cases where a Hindu female would get an absolute interest. The

argument of the learned counsel for the appellant

is that as the right

of maintenance was a

pre-existing right, any instrument or transaction

by which the property was allotted to the appellant would not be a new

transaction

so as to create a new title but would be only in

recoQ'llition

of a pre-existing right, namely, the right of maintenance. On the

other hand Mr. Natesan aooearing for the resoondents submitted that

the object of the proviso was to validate rather than disturb the past

transactions which had placed certain restrictions

or curbs on the power

of a Hindu female and

as the language of the proviso is very wide

there

is no warrant for not aoolying it to cases where

pre-existin" riohts

are concerned .. In the altema_tiye, Mr. Natesan argued that the Hindu

woman's right to maintenance is not a leeal right unless an actual

charge is created in respect of the property and is, therefore. not en­

forceable. at law. It is, therefore, not correct to describe a cl"i"' of a

Hindu female's right to maintenance ~implicitPr as a pre-existing right

because

all the necessary indicia of a legal right are wanting.

After considering various aspects of the matter

we

are inclined to

agree

with the contentions

rnised by Mr. Krishna Murthv Iyer aonear­

jng for the appellant. In the first place, the appellant's contention

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29 6 SUPREME COURT REPORTS [1977] 3 S.C.R.

appears to be more in consonance with the spirit and object of the

statute itself. Secondly,

we have. already pointed out that the claim

of a Hindu female for maintenance

is undoubtedly a

pre-existing right

and this has been so held not only by various Courts in India but also

by the Judicial Committee of the Privy Council and by this Court.

It

seems to us, and it has been held as discussed above, that the claim

or the right to maintenance possessed by a Hindu female

is really a

substitute for a share which

she would have got in the property of

her husband. This being the position, where a Hindu female who

gets

a share in her husband's property acquires an absolute interest by

virtue of

s. 14(1) of the Act, could it be intended by the legislature

•that in the same circumstances a Hindu female who could not get. a

share but has a right

of maintenance would not get an absolute interest?

In other words, the position would be that the appellant would suffer

because her husband had died prior to the Act

of 1937. If the

hus­

band of the appellant hi!d died after 1937, there could be no dispute

~hat the appellant woulc have· got an absolute interest, because she

was entitled to her share under the provisions of the Hindu Women's

Right to Property Act,

193 7. Furthermore, it may be necessary to

study the language in which the Explanation to

s. 14( 1) and sub-s. (2)

of s. 14 are couched. It would be seen that while the Explanation to

s. 14(1) clearly and expressly mentions "property acquired by a female

Hindu'? at a partition. or in lieu of maintenance or arrears of 1naintenance

there is no reference in sub-s. (2) at all to this particular mode of acqui­

sition by a Hindu female which clearly indicates that the intention of

the Parliament

was to exclude the application of sub-s. (2) to cases

where the property has been acquiredi by a Hindu female either at a

partition or in lieu of maintenance

etc. The Explanation is an inclu­

sive definition and if the Parliament intended that everything that is

mentioned in the Explanation should be covered by sub-s. (2) it should

have expressly so stated in sub-s.

(2). Again the language of sub-s.

(2) clearly shows that it would apply only to such transactions which

are absolutely independent in nature and which are not in

recognition of

or in lieu of pre-existing rights. It appears from the Parliamentary

Debates that when the Hindu Succession Bill, 1954,

was referred

to a

Joint Committee by the Rajya Sabha, in s. 14(2) which was clause

16(2) of the Draft Bill of the Joint Committee, the words mentioned

were only

gift or

will. Thus the intention of the Parliament was to

confine sub-s. (2) only to two transactions, namely a .2ift or a will,

which clearly would not include property received by a Hindu female

in

lieu of maintenance or at a partition. Subsequently, however, au

amendment

was proposed by one of the members for adding other

cate·

gories, namely, an instrument, decree, order or award which was ac­

cepted bv the Government. This would show that the various terms,

viz,, gift, will, instrument, decree, order or award mentioned in s.

14(2) would have to be read ejusdem generis so as refer to transac·

tions where right is created for the first time in favour of the Hindu

female. The intention of the Parliament in adding the other cateeories

to sub-s. (2) was merely to ensure that any transaction under which a

Hindu female gets a new. or independent title under any of the modes

mentioned ins. 14(2), namely, gift, will, decree, order, award or

an instrument which prescribes a restricted estate would not be disturb­

ed and wo,uld continue to occupy the field covered bys. 14(2). This

y

V. TULASAMMA v. v. SESHA REDD! (Fazal Ali, l:l 297

would be the position even if a Hindu male was tu get the property A

by any

of the modes mentioned in s. J 4(2) : he would also get only a restricted interest and, therefore, the Parliament thought that there

was no warrant for making· ahy distinction 'between a male or a female

in this regard and both were, therefore, sought to be equated.

Finally,

we cannot overlook the scope and extent

of a proviso.

There can be no doubt that sub-s.' (2) of s. 14 is clearly a proviso to B

~. 14(1) and this has been so held by this Court inBadri Prasad's case

(supra). It is well settled that a provision in the nature of a proviso

. merely carves out an exception to the main provision and cannot be

interpreted in a manner so

as to destroy the effect of the main provision

or to render the same nugatory.

If we accept the argument of the

res­

pondent that sub-s. (2) to s. 14 would include even a property which

has been acquired by a Hindu female at a partition or in lieu of C

maintenance then a substantial part

of the Explanation would be com­

pletely set

at nanght which could never

be the intention of the proviso.

Thus we are clearly of the opinion that sub-s. (2) of

s. 14 of the

proviso should be interpreted in such

a way so as not to substantially

erode

s. 14(1) or the Explanation thereto. In the present case we

feel

that the proviso has carved out completely a separate field and

before it can apply three conditions must exist : D

(i) tliat the property must have been acquired by way of

gift, will, instrument, decree, order of the Court or

by an award;

(ii) that any

of these documents executed in favour of a

Hindu female must prescribe a restricted estate in

such property; and

(iii) that the instrument must create

or confer a new right,

title or interest on the Hindu female and not

m~rely

recoguise, ·or give effect to a pre-existing right which

the female Hindn already possessed.

Where any ·of these documents are executed but no restricted estate

E

is prescribed, sub-s. (2) will have no application. Similarly where F

these instruments do not confer a new title for the first time on tlie

female Hindu, s. 14(1) would have no application. It seems to me

that s. 14(2) is a salutary provision which bas been incorporated

by the Parliament for historical reasons in order to maintain the link

between the Shastric Hindu Law and the Hindu Law which

was

sought to be changed by recent legislation, so that where a female

Hindu became possessed

of property not in virtue of any pre-existing G

right but otherwise, and the grantor chose to impose certain conditions

on the grantee, the legislature 'did not want to interfere with such a

transaction

by obliterating or setting at naught the conditions imposed.

There

was some argument at the bar regarding the use of the term

"limited owner" in s. 14(1) and "restricted estate" ins. •14(2). Not

much, however, turns upon

this. I think that the

Parlia!llent advi­

sedly used the expression "restricted estate" in s. 14(2), because

while a limited interest would indicate only life estate, a restricted estate

is much wider in its ·import. For instance, suppose a donor while giving

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SUPREME COURT REPORTS (1977] 3 S.C.R.

the property to a Hindu female inserts a condition that she will have to

pay Rs. 200/-to donor or to one of his relatives till a particular time,

this would not come within the term "limited interest", but it would be

included by the term "restricted estate''. That is the only justification

for the difference in the terminology_of

s. 14( 1) and (2) of the Act.

Having discussed the various aspects of

s. 14(1) and (2) we

shall now deal with the authorities cited before us by counsel for the

parties which are by

no means consistent. We will first deal with the

authorities which took the

view that we have taken in this case. Jn

this connection the sheet-anchor

of the argument of the learned coun­

sel for the appellant

is the

decisi011 of the Bombay High Court in

B. B. Petti! v. Gangabai (') and that of the counsel for the respondents

is the decision of the Madras High Court in Gurunadham v. Sundra­

raju/u(') and Santhanam v. Subramania(

3

). 1he latter case was affir­

med in appeal by the Division Bench of the Madras High Court in

S. Kachapalaya Gurukkal v. V. Subramania Gurukkal (') and the

aforesaid Division Bench judgment forms the subjects matter of Civil

Appeal No. 135 of 1973 which

will be disposed of by us by a separate

judgment.

We will now take up the case of the Bombay High Court relied

upon by the learned counsel for

the appellant which, in our opinion,.

lays down the correct law on the subject.

In B. B.

Patil v. Ganga­

bai (supra) the facts briefly were that the properties in question

were the self-acquired properties of Devgonda and after his death in

1902 Hira Bai daughter-in-law of Devgonda (widow of his son Appa,

who also died soon thereafter) came into possession of the proper­

ties. Disputes arose between Hira Bai and Nemgonda, the nephew

of Devgonda, and the matter having been referred to the arbitrator

he gave his award on October 16, 1903 and a decree

in tenns of the

award

was passed on October 24, 1903.

Under the decree in terms

of the award,

65 acres of land and one house was allotted to Hira Bai

out of which

30 acres were earmarked for the provision of mainten­

ance and marriage of the three daughters and the rest of the property

was ordered to be retained by Hira Bai for

life with certa;n restrictions.

After her

<lea.th these properties were to revert to Nemgonda. The

dispute which

was the subject-matter of the appeal before the High

Court

was confined to 35 acres of land and the house which was in

possession of Hira Bai. Hira Bai continued to be in possession of

these properties right upto February 25, 1967. Meanwhile

Nem­

gonda had died and his sons defendants 2 to 6 claimed the properties.

After the death

of Hira

Bai, the plaintiffs, who were two out of the

three daughters of Hira Bai, filed a suit for possession claiming entire

title to the properties

in possession of Hira Bai on the ground that Hira· Bai \Vas in possession of the properties as limited o\vner at

the time of the passing of the Hindu Succession Act, 1956 and

(I) A.J.R. [1972] Born. 1".

(2) !.LR. [1968] ·l Mad. 567.

(3) I.LR. [ 1967] Marl. 68.

(4) A.LR. [1976] M•d. 179.

v. TULASAMMA V, v. SESHA REDD! (Fazal Ali, J.) 299

so her limited estate was enlarged into an absolute estate and the

plaintiffs were, therefore, entitled to succeed to her properties in pre­

ference

to the reversioners.

The suit was contested by defendants

2 to 6 mainly

on the ground that as Hira Bai under the compromise

was to

retain only a life interest in the properties, her case would be

covered

by s. 14 ( 2) of the Act and after her death the prnoerties

would revert to the reversioners.

The Court held

that· as Hira Bai

was put in possession of the properties in lieu of her maintenance, s.

14 ( 2) had no application, because the award merely recognised the

pre-existing rights

of Hira Bai and did not seek to confer any fresh

rights or source of title on Hira Bai. Thus even though

the award

did provide that Hira Bai would have a limited interest,

s. 14(2)

would have no application and Hira Bai will get an absolute interest

after the coming into force of the Hindu Succession, Act, 1956. The

Court observed :

"The explanation, thus, brings under its purview· all

properties traditionally acquired

by a Hindu female on

which merely by

reason of the incidents of the Hindu law

she has limited ownership.

In other words, sub-section ( 1)

read with this explanation provides

tliat any property, how­

soever acquired and in possession O·f a Hindu female affer

the commencement of the Act shall be held by her

as a fnll

owner

in all cases

where she formerly held merely limited

ownership.

As a matter of fact, this sub-section proceeds

on the basis that

there are several categories of properties

of which a Hindu female, under the provisions of Hindu

Law,

is merely a limited owner. By this. enactment her

rights1 are enlarged and wherever under the Hindu Law

she would merely obtain limited ownership, she would,

after the commencement of the Act, obtain full ownership."

"There is consensus of judicial opinion with regard to the

ambit

of sub-s. (2) of s. 14 of

the Act. It covers only

those cases of grants where the interest in the grantee

is

created by

the grant itself, or, in other words, where the

g;ft, will, instrument, decree, order

or award is the

source

or origin of the interest created in the grantee. Where,

however, the instruments referred to above are not the

source of interest created but are merely declaratory

or

definitive of the right to property antecedently enjoyed by the

Hindu female, sub-section (2) has no application; and it

matters not if in such instruments it

is specifically provided

in express terms that the Hindu female had a limited

estate

or that the property would revert on her

death to the next reversioner such terms are merely the

reiteration of the incidents of the Hindu Law applicable to

the limited estate."

Dwelling on the nature and inCidents of the right of the widow

to ~aintenance before the Hindu Women's Right to Property Act,

1937, Palekar, J., speaking for the Court described the various

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300 SUPREME COURT REPORTS [1977) 3 S.C.R.

characteristics and incidents of the right of a Hindu female for main­

tenance (which have already been discussed by us). Finally, the

Judge observed as follows :

"It appears to us that in the context of the Hindu widows

the right to maintenance conferred under the Hfodu Law is

ilistinguishable in quality from her right to a share in the

family property. That may well be the reason why the

explanation to sub-section ( 1) of section

14

of· the Act

makes' the female allottee of property "in lieu of mainten­

ance" as much a limited owner as when the widow acquires

on "inheritance" or "at a partition". And. if in the latter

two cases it

is conceded that sub-section (2) does not

apply

on !Qe ground of antecedent right to the family properties,

we do not see any rational· justification to exclude a widow

who has an equally sufficient claim over the family properties

for her

maintenance."

Thus the following propositions emerge from a detailed discus­

sion of this case :

(I) that the widow's claim to maintenance is undoubtedly

a tangible right though not an absolute right to property

so

as to become a fresh source of

title. The claim for

maintenance can, however, be made a charge on the

joint family properties, and even

if the properties are sold

with the notice of the said charge, the

sold properties

will be burdened with the claim for maintenance;

(2) that by virtue of the Hindu Women's Right to

Property

Act, 193 7 the claim of the widow to maintenance has

been crystallized into a full-fledged right and any pro•

perty allotted to her in lieu of maintenance becomes pro­

perty to which she has a limited interest which by virtue

of the provisions of Act of 1956

is enlarged into

an·

absolute title;

(3) Section 14(2) applies only to cases where grant is not

in lieu of maintenance or in recognition of pre-existing

rights but confers a fresh right or title for the

first time

and while conferring the said title certain restrictions are

placed by the grant or transfer. Where, however, the

grant

is merely in recognition or in implementation of a

pre-existing right to

claim maintenance, the case falls

beyond the purview of s. 14(2) and comes squarely

within the explanation to

s. 14(1).

The Court dissented from the contrary view taken by the

Orissa and

Madras High Courts

on this question. We find that the facts of this

case are on all fours

with the present appeal, and we are in complete

agreement with the view taken and the reasons given by Palekar,

J.

Once it is recognised that right of maintenance is a pre-existing tangi-

•

V. TULASAMMA v. V. SESHA REDD! (Fazal Ali, J.) 30i

LL righ~, ii m~kes no difference whether a Hindu widow died before A

or after th·e enactment of Hindu Women's Rights to Property Act

1937. ,

A similar view was taken by an earlier decision of the Andhra

Pradesh High Court in Gadem Reddayya v. Varapula Venkararaju

and Anr,. (') where the Court held that the family settlement was only

in rccoznition of the pre-existing right of the widow to maintenance

and, therefore, was not covered by s.

14(2) of the Act of 1956. In

our

oph:ion, this case correctly states the law on the subject, •

In Sumeshwar Mishra v. Swami Nath Tiwari, (') the High Court

of Patna appears to have taken the same view, and in our opinion verJ

correctly. The Patna High Court differed from the decision of the

Madras High Court in Thatha Gurunadhan Chetti v. Smt. Thatha

Navaneethamma,(') and in

our opinion rightly. We are of the opinion,

for the reasons that we have already

giveq above, that the view of

the Madras High Court was not legally correct. A later decision

of

the

Patna High Court in-Lakshmi Devi v. Shankar Jha(') has also

taken the same view; We, however, fully approve of the view expressed

by the Patna High Court and Andhra Pradesh High Court ·referred to

above.

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Similarly in H . .Venkanagouda .v. Hanamangouda(') the Mysore

High Court adopted the view

of the Bombay High Court

in B. B. Patil v.

Gangabai (supra) and dissented from the contrary view taken by the

Madras and the Orissa High Courts. In our opinion, this decision·

seems to have correctly interpreted the provisions of s. 14(2) of the

1956 Act and has laid down the correct law. The view

of the Madras

High Court and the Orissa High Court whlch was dissented from by E

the Mysore High Court is, in our opinion, legally erroneous and must

be overruled.

·

In Smt. Sharbati Devi v. Pt. Hira Lal & Anr.(6) the Punjab High

Court clearly held that application of s. 14(2) was limited to only

those cases where a female Hindu acquired a title for the first time,

for otherwise the property acquired

in lieu of maintenance even though F conferring a limited estate fell clearly withln the ambit of explanation

to s. 14

(!) of the Act and would, therefore, become the

absolute pro-

: perty of the widow. Thus the Punjab.High Court also fully favours

the view taken· by the Bombay, Patna, Mysore, Andhra Pradesh and

other High Courts discussed above and has our full approval. The

only distinction in the Punjab case is that here the widow got the

pronerties after the comin.~ into force of the Hindu Women's Rights G

to Property Act, 1937. but that, as we shall point out hereafter,

makes no difference with respect

to the legal right which a widow

Ilas

t'J maintain herself out of the family property.

(I) A.T.R. 1965 A.P. 66.

(2) A.T.R. 1970 Pa'. 348.

(1) A.~.R. 1967 M•d. 429 ..

(4) A.I.R. 1074 Pat. 87.

(5) A.l.l? .. 1972 Mys. 286.

(6) A.I.R. 1964 Pb. 114.

H

302 SUPREME COURT REPORTS [1977] 3 S.C.R.

.A The Calcutta High Court has also taken the same view in Sasadhw

.B

E

Chandra Dev v. Smt. Tam Sundari Desi (') which we endom·.

In Saraswathi Ammal v. Anantha Shenoi,(') the Kerala High

Court, after a very detailed discussion and meticulous analysis

of the

law on the

subj~t, pointed out that the right of a widow to main­

tenance was not a matter of concession but under the Sastri's Hindu

Law it was an obligation on th_e heirs who inherited the properties of

the husband to maintain the widow and any property which the widow

got in lieu of maintenance

was not one given purely as a matter of

concession, but the widow acquired a right

in such property. We

fully agree with the

view taken by the Kerala High Court in the afore­

said case.

In Kunji Thomman v. Meenakshi(

3

)

although the Kerala High

Court reiterated its previous view,

on the facts of that particular case

the High Court held that under the family settlement the widow did

not get any right to maintenance but was conferred a new right which

was not based on her pre-existing right and on this ground the High

Court felt that the widow would not get au absolute interest in

view of

the explanation to s. 14 ( 1).

In Chel/ammal v. Nallammal(') the facts were almost similar to

the facts of the present case. A single Judge

of the Madras High

Court held that the case was clearly covered by the

Explaiiation to

s. 14 (1) of the Act and the properties given to the widow in lieu of

maintenance became her absolute properties and would not be covcrefl

by s. 14(2) of the Act. This decision appears to have been over-

ruled bv a later decision

of the same High Court in S.

Kachapalaya

Gurnkkal v. V. Subramania Gurukkal (supra) which is the subject­

matter of Civil Appeal No. 126

of 1972 and we shall

discuss the

Division Bench's decision when

we

re.fer to the authorities taking a

contrary view. We

find ourselves in complete agreement with the

view taken by the Single

Jucll(e in Chellammal v. Nellamnwl (supra).

and

we

overrule the Division Bench decision in S. Kachapalaya G11ru­

kkal's case (supra).

F Thus all the decisions discussed above proceed on the right pre-

mises and have correctly appreciated the nature and incidents cf a

Hindu woman's right to maintenance. They have also properly

understood the import and applicability

of s. 14(2) of the 1956 Act

and have iaid down correct law on the subject.

We now deal with the authorities taking a contrary

viev,'. ' hich,

·G in our opinion, does not appear to be the correct view.

H

Jn Narayan Patra v. Tara Patrani(') the Orissa High Court. fol­

lowing a decision of the Andhra Pradesh High Court in G. Kondiah

v. G. Subbarayya(

6

), held that since the widows were given o!lly a

(1) A.T.R. 1962 Cal. 418.

(2) A.LR. 1966 Ker. 66.

(3) I.!..R. 1970 2 Ker. 45.

(4) [19711 M.LJ. 439. •

(5) [l nOJ 36 Cutt,ok L.T. 667~A.T.'1.. 1970 Orissa 131.

(6) [1968] /. Andh. W.R. 455.

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v. TULASAMMA v. V. SESHA REDD! (Fazal Ali,!.) 303

Iestricted estate their case squarely fell within the ambit of s. 14(2)

of the Act and their interest would not be enlarged. Reliance was

.also placed on a Madras decision in

Thatha Gurunadham

Chetty v.

Thatha Navaneethamma (supra). It is obvious that the conclusions

arrived

at by the High Court are not warranted by the express prmci­

ples of Hindu Sastric Law.

It is true that a widow's claim for main­

tenance does not ripen into a full-fledged right to property,

but

nevertheless it is undoubtedly a right which in certain cases can

amount to a right to property where it is charged. It cannot be said

that where

a property is given to a widow in lien of maintenance, it is

,given to her for the. first time and not in lieu of a

pre-existing right. The claim

to maintenance, as also the right to

claim property in order

to maintain herself, is an inherent right con­

Jerre<l by the Hindu Law and, therefore, any property given to her

in lieu of maintenance

is merely in recognition of the claim or right

which the widow possessed from

before. It cannot be said that such

a right has been conferred

on her for

the first time by virtue of the

document concerned and before the existence

of the document the

widow had

no vestige of a claim or right at all.

Once it is established

that the instrument merely recognised the pre-existing right, the

widow would acquire absolute interest. Secondly, the Explanation

to

s. 14(1) merely mentions the various

mooes by which a widow can

acquire a property and the property given in lieu of maintenance

is ·one of the modes mentioned in the Explanation. Sub-section (2)

is merely a proviso to s. 14( 1) and it cannot be interpreted in such a

manner

as to destroy the very concept of the right conferred on a

Hindu woman under

s. 14(1). Sub-section (2) is limited only to

those cases where

by virtue of certain grant or disposition a

right

is conferred on the widow for the first time and the said right

is restricted by certain conditions. In other words, even if by

a grant

or disposition a property is conferred on a Hindu male under certain

condit'ons, the same are binding on the male. The effect of sub-s.

(2) is merely to equate male and female in respect of grant conferring

a restricted estate.

In these circumstances we do not agree with the

views expressed

by the

Orissa High Court.

The other High Courts which have taken

a contrary view are mainly

the Andhra Pradesh, Allahabad and the Madras Hgh Courts. In an

earlier decision of the Patna High Court in

Shiva Pui<lll Rai and

Others v. Jamuna Missir and Others(') the High Court seems to rally

round the view taken by the Madras High Court.

We shall take up the decisions of the Andhra Pradesh High Court.

As already indicated above, the earlier decision

of the Andhra Pradesh

High Court in

Gadam Reddayya v. Varapula Venkataraju took the

same view which

was taken later by the Bombay High Court

and held

that

in a case like the present, a Hindu female would get an absolute

interest and her case would not be covered

by sub-s. (2) of

c. 14 of

the 1956 Act. In Gopisetti Kondaiah v. Gunda Subbaravudu(')

another Division Bench of the same High Court apµcars to have taken

a contrary view. Jaganmohan Reddy, C.J .. speaking for the Court

observed as follows:

(1)

I.LR. 47 Pat. 1118.

(2) LL.TR.[1968] A.P. 621.

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304 SUPREME COURT REPORTS (1977] 3 S.C.R.

"In so far as the right of a Hindu woman to maintenance

is concerned, it is necessary at this stage to point out one

nther basic concept. A Hindu woman has a right to

be

maintained by her husband or from her husband's property

or Hindu joint family property. But that

is merely a right

tu receive maintenance out of the properties without in any

way conferring on. her any right, title or interest therein.

It 1s not a definite right, but is capabie of being made a

charge on specific properties

by agreement, decree of Court

or award, compromise or otherwise.-

....... But this incli-

finitc right, to

be maintained from out of the properties of a

Hindu Joint family, does no:, however, create in her a pro-

prietary right in the property

.......... But if a restricted

estate

is given by any such instrument, even if it be in lieu of

maintenance, which

is inconsistent with an estate she would

get under the Hindu Law, then sub-section (2) of section

14

would operate to give her only a restricted estate. . ...... .

But

if it is the latter, notwithstanding the fact that it was

transferred in lieu of maintenance, if only a restricted estate

was conferred by the instrument, then she would only have

the restricted

estate."

While we fully agree with the first part of the observations made by

the learned Chief Justice, as he then was that one of the basic concepts

of Hindu Law

is that a Hindu woman has right to be maintained by

her husband or from her husband's property or

the joint family

pro­

perty we respectfully disagree with his conclusion that even though

this

is the legal position yet the right to receive maintenance

does not confer on her any right, title or interest

in the

property.

It is true that the claim for maintenance is not an enforce­

able right but it is undoubtedly a ·pre-existing right, even though

no charge

is made on the properties which are liable for her

maintenance.

We also do not agree with the view of the learned

Chief Justice that if the property

i's given to the widow in lieu of main­

.tenance she will get only a restricted estate. In our opinion, the

High Court of Andhra Pradesh has proceeded on wrong premises.

Instead of acknowledging the right of a Hindu woman to maintenance

as a right to a right---or for that matter a pre-existing right-and then

considering the effect of the subsequent transactions, the High Court

has first presumed that the claim for

Il:!aintenance is not a tangible

right at

all and, therefore, the question of a

prc-existmg r;ght does

not arise. This,

as we have already pointed

o•,t, is against the con­

sistent view taken by a large number of Co11rts for a very long period.

Furthermore, this case does not appear to have noticed the previous

Division Bench decision in

Gadam Reddayya's case (supra)

taking

the contrary view, and on this ground alone the authority of

this case

is considerably weakened. At any rate, since we are

satis­

fied that the claim of a Hindu woman for maintenonce· is a pre-exist­

ing right, any transaction which is in recognition or declaration of

that right clearly

falls beyond .the purview of

s. 14(2) of the 1956

Act and, therefore, this authonty does not lay down the correct Jaw.

W c, therefore, do not approve of th

0

v;ew taken in this case and

overrule the same.

v. TULASAMMA v. v. SESHA REDD! (Fazal Ali, J.) 305

As regards the Madras High Court, the position appears to be A

almost the same. There also, while a single Judge took the same

view as the Bombay High Court and held thats. 14(2) was not appli­

cable,

the Division Bench of the Court in an appeal

agamst the order

of another Single Judge took the contrary view. In S. Kachapalaya

Gurukal

v. Subramania Gurukkal (supra) the Court seems to .' draw an artificial distinction between a claim of a widow !or mainten­

ance and a pre-existing right possessed by her. According

to the B

High Court,

while a claim for maintenance simpliciter was not a

right at all, the right

to get a

share in the husband's property under

the Hindu Women's Right to Property Act, 1937 was a pre-existing

right. The Madras High Court appears to havti fallen into an error

by misconceiving the scope and extent of a Hindu woman's right to

maintenance. Secondly, it appears to have interpreted the proviso in

such a manner as to destroy the effect of the main provision, namely, C

s. 14 (!) and the explanation thereto, for which there can be no

warrant in

law. The decision of Natesan, J., in Gurunadham v. Sund­rarajulu Chetty (supra) which had been affirmed by this judgment

also appears to, have taken the same view and had fallen into the

same error. Furthermore,

the view of the learned Judge that on

the interpretation given and the view taken by the Bombay High

Ccurt

which we have accepted, s. 14 is intended to override lawful terms in D

contracts, bargains, bequests or gifts

etc. is not correct, because the

scope and area of sub-s. (2)

of s. 14 is quite separate and defined.

Such a

§Uh-section applies only to such transactions as confer new

right, title or interest on the Hindu females. In such cases the titles

created under sub-s. (2) :.re left in tact ands. 14(1) does not inter-

fere with the titles

so created under those instruments.

E

Thus, in short, these two decisions suffer from the following legal

infirmities : (i) the Madras

High Court has not correctly or properly

appreciated the nature and extent

of the widow's

righ~ to mainten­

a~cc; and (ii) .the distinction drawn by the Court regarding the share

given to the widow under the Hmdu Women's Right to Property Act

allotted to her before the passing

of the Act in lieu of maintenance is

based

on artificial grounds. In fact the Act of 1937 did not legislate F

anything

new, but merely gave statutory recognition to the old

Shastric

Hil,Ju Law by consolidating the same and clarifying the right of the

widow which she already possessed in matter of succession under the

Hindu

Law. This being the position, the Act of 1937 makes rio

difference so far as the legal status

of a widow in regard to her right

to maintenance

was,

concerned. The Act neither took away the right

of maintenance nor conferred the same; (iii) the Court appears to • G

have given an extended meaning to sub-s. (2) of s. 14 of the 1956

Act

which has been undoubtedly enlarged so as to

set at naught the

express words in the Explanation to sub-s. (1) of s. 14 which express-

ly exclude the property given to a widow in lieu of maintenance or

at a partition

from the ambit of sub-s. (l). In other words, such a

property, according to the Explanation,

is a property in which

the

widow would have undoubtedly a limited interest which by operation H

of

law i.e. force of s. 14(1) would be enlarged into an absolute in­

terest if the widow

is in possession of the property on the date when

the Act

was passed; (iv) similarly the Court failed to notice that

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306 SUPREME COURT REPORTS [1977] 3 S.C.R,

sub-s. (2) of. s. 14 would apply only wh~re a new right is created

for the first tune by virtue o! a gift, will etc. or the like executed in

favour of the widow in respect of which she had

no prior interest in

!he property at

all. For

instan"e, a daughter is given a limited in­

~erest Ill presence of the widow. Here the daughter not being an heir

m presence

of the widow (before !he Hindu Succession Act came

into force) she had

no right or share in the praperty, and if she was

allotted some property under any instrument, a new and fresh right

was created in her favour for !he first time which she never possessed.

Such a case would be squarely covered bys. 14(2) of the Act.

In

Ram Jag Misir v. The Director of Consolidation,

U.P.,(') the

same

view has been

taken· as the Madras High Court. This case does

not discuss the various aspects which have been pointed out by

us

and proceeds purely on the basis that as the widow acquired a res-

C tricted estate under the compromise,

s. 14(2) would at once apply.

It has not at all considered !he decisions

of tliis Court that a mere

description of limited interest in a grant or compromise

is not a res­

triction but

may just as well as merely a statement of the law as

it

stood when the grant was made. The Court has also not considered

the various incidents and characteristics of the widow's right

to main­

tenance under the Hindu Law.

D Reliance was also placed by !he learned counsel for the1 respon-

dents on a Division Bench decision of the Patna High Court in Shiv

Pujan Rai v. !amuna Missir (supra) where the High Court held that

the property given to a

widow under a compromise in lieu of her

maintenance

was covered by sub-s. (2) of s. 14. This decision was

really based on the peculiar findings of fact arrived at by the

Courts

of fact. The High Court in the first place held that on the facts

E there

was nothing to show !hat the widow acquired any interest inde­

pendent of the compromise under which she

was given the praperty.

In these circumstances, it may be !hat the widow was given a fresh or

a new title under the compromise in which case the matter would

be clearly covered

bys. 14(2) of the 1956 Act. Even if this

case be

treated

as an authority for the proposition !hat any property allotted to

a

widow under a compromise in lieu of maintenance would be covered

F by

s. 14(2) of the Act, then we dissent from this view, and for !he

reasons which we have already given

we choose to prefer the view taken

by the

Patna High Court in a later case in Sumeshwar Mishra v. Swami

Nath Tiwari

(supra), which lays down the correct law on the subject.

Reliance was also placed on a Full Bench decision of !he Jammu

& Kashmir High Court in Ajab Singh &

Ors. v. Ram Singh and other.(')

In this case also the various aspects which we have indicated

G • and the nature and extent of the Hindu women's right to mantenance

were not considered at

all and the Court proceeded by giving an

extended meaning to !he provisions

of sub-s. (2) of s. 14 which in that

case was sub-s.

(2) of s. 12 of the Jammu & Kashmir Hindu

Succes­

sion Act 1956. It is true that the leading Judgment was given by

one of u~ (Fazal Ali, J.,) but I must confess that the important ques­

tion

of law that has been argued before us in all its

comprehensive

H aspects was not presented before me in that case and even the counsel

(1) A.I.R. 1975 All. 151.

(2) A.1.R. 1959 J & K 92.

,.

1

v. TULASAMMA v. V. SESHA REDD! (Fazal Ali, J.) 307

for the respondents did not seriously contend that sub-s. (2) of s. 14 A

was not applicable. For these reasons we are not in a position to

approve of the Full Bench decision

of the Jammu & Kashmir High

Court in

Ajab Singh's case. which is hereby overruled.

Thus on a careful scrutiny and analysis of the authorities discuss-

ed above, the position seems to

be that tl:e view taken by the High

Courts of Bombay, Andhra Pradesh, Patna, Mysore, L:·1jab, Calcutta B

and Kerala to the effect that the widow's claim to maintonc.::ce, even

though granted

to her subject to certain restrictions, is

covered by s. 14

(1) and not by sub-s. (2) is based on the following premises:

(1) That the right of a Hindu widow to claim maintenance is un­

doubtedly a right against property though not a right to property.

Such a right can mature into a full-fledged one if it is charged on the

property either by an agreement or by a decree. Even otherwise,

where a family possesses property, the husband, or in case of his death,

his heirs are burdened with the obligation to maintain the widow

and, therefore, the widow's claim for maintenance

is not an

empty

formality but a pre-existing right.

(2) Section 14(2) which is in the nature of a proviso to s. 14(1)

cannot be interpreted in a way so as to destroy the concept and

defeat the purpose which

is sought to be effectuated by s. 14 (1) in

conferring an absolute interest on the Hindu women and in doing

away with what

was heretobefore known as the Hindu women's estate.

The proviso

will apply only to such cases which flow beyond the pur­

view

of the Explanation to s. 14(1).

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( 3) That the proviso would not apply to any grant or transfer in E

favour of the widow hedged in by limitation

or restrictions, where

the

grant is merely in recognition or declaration of a pre-existing right, it

will apply only to such a case where a new right which the female

.did not possess at all is sought to be conferred on her nnder certain

limitations or exceptions.

In fact in such a case even if a conditional

grant is made to a male, he wonld

be bound by the condition imposed.

The proviso wipes out the distinction between a male and a female in F

this respect.

·

The contrary view taken by the Madras, Orissa, Andhra Pradesh

Allahabad and Jammn

& Kashmir High

Courts proceeds on the fol~

lowing grounds :

.< 1) That a. widow's. claim to maintenance is merely an inchoate

or mcomplete nght havmg no legal status, unless the widow gets a

property in lieu of maintenance or unless a charge is created in a

particular property the claim for maintenance cannot be legally en­

forced. Thus, where under a grant, compromise, transfer or a decree,

a property is allotted to the widow in lieu of maintenance, it is not

the recognition of any pre-existing right but it amounts to confennent

of a new right for the first time which in fact did not exist before the

said demise. This view

is really based on the provisions

of.the Hindu

Women's Right to Property Act,

1937, under which the widow has

got the right to get a share

o£ his son in lieu of partition and even

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308 SUPREME COURT REPORTS [1977] 3 s.c.R.

otherwise she is entitled to her share in the joint Hindu family property

on partition. These High Courts, therefore, seem to be of the opi­

nion that in view of the provisions of the Hindu Women's Right to

Property Act, the widow in claiming a share in the property has a

pre-existing right which

is recognised by law, namely, the Act of 1937 . . The same, however, cannot be said of a bare claina to maintenance

which has not been recognised as a legal right and which can mature

into a legally enforceable right only under a grant

or demise.

This

\iew suffers from a serious fallacy, which is based on a misconception

of the truei position of a Hindu widow's claim for maintenance. It

bas been seen from the. discussion regarding the widow's claim for

maintenance

and her status in family that under the pure

Sastric

Hindu Law the widow is almost a co-owner of the properties with

her husband

and even before the Act of 1937 she was

enti.tled to the

share of a son on the death of her husband a;fter partition according

to some schools

of Hindu Law.

The Act of 1937 did not introduce

any new right

but merely gave a statutory recognition to the old Sastric Hindu Law on the subject. In this respect the Act of 1937

is very different from the Act of 1956, the latter of which bas made a

revolutionary change

in

the Hindu Law and has changed the entire

complexion and concept of Hindu women's estate.

In these

circum-·

stances, therefore, if the widow's claim for maintenance or right to

get the share of a son existed before the Act of 1937, it is futile to

dub this, right as flowing from the Act of 1937. The second fallacy

in this. view is that the Court failed to consider that the claim for

maintenance

is an important right which is granted to the widow under

the

Sastric Hindu Law which enjoins· the husband to maintain bis wife

even if he bas no property. Where he bas a property the widow bas

to be maintained from that property so much so that after the death

of her husband any one who inherits that property takes the property

subject

to

the burden of mruntaining the widow. Even where the

property is transferred for payment of family debts

and the transferee

has the

notice of the widow's clrum for mruntenance, he has to dis­

charge the burden of maintaining the widow from the property sold

to him. Thus the nature and extent of the right of the widow to

claim maintenance

is undoubtedly a pre-existing right and it is wrong to

say that such a right comes into existence only if the property is allotted

to the widow in lieu of maintenance and

not otherwise.

Another reasoning given

by the courts taking the contrary view

is

that! sub-s. (2) being in the nature of a proviso to s. 14(1) all

,grants with conditions take the case out of s. 14(1). This, as we

have already pointed out,

is based on a wrong interpretation of the

scope

and! ambit of sub-s. (2) of s. 14.

Lastly,

the contrary view is in direct conflict with the observations

made

by this Court in the

cases referred to above, where a grant in

lieu of maintenance of the widow has been interpreted

as being in recog­

pition of a pre-existing right so as to take away the case from the

ambit

of sub-s. (2).

For these reasons

and those given hereto before we choose to

prefer the view taken by Pa)ekar, J., in B. B: Patil v. qangabai (s_npra)

which appears

to be more m consonance Wlth the ob1ect and spmt of

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•

v. TULASAMMA v. V. SESHA REDD! (Fazal Ali, J.) 309

the 1956 Act. We, therefore, affirm and approve of the decisions

of the Bombay High Court

in B. B.

Patil v. Gangabai; of the Andhra

Pradesh High Court in Gadam Reddayya v. Varapula Venkataraju &

Anr.; of the Mysore High Court in H. Venkanagouda v. Hanamana­

gouda;

of the

Patna High Court in Sumeshwar Mishra v. Swami Nath

Tiwari;

of the

Punjab High Court in Srnt. Sharbati Devi v. Pt. Hira Lal

& Anr.

and Calcutta High Court in Sasadhar Chandra Dev v. Srnt. Tara

Sundari Dasi

(supra) and disapprove the decisions of the Orissa High

Court in

Narayan

Patra v. Tara Patrani; Andhra Pradesh High Court

in

Gopisetty Kondaiah v. Gunda Subbarayudu (supra); Madras High

Court

in S. Kachapalaya Gurukkal v. V. Subramania Gurukkal (supra)

and

Gurunadham v. Sundararajulu; of the Allahabad High. Court in

Ram Jag Missir v. Director of Consolidation,

U.P.;_ and in A jab Singh

& Ors. v. Ram Singh & Ors. of the Jammu & Kashmir High Court.

Lastly strong reliance was placed by Mr. Natesan counsel for the

respondents on a decision of this Court in Smt. Naraini Devi v. Smt.

Ramo Devi

& Others(') to which one of us (Fazal Ali, J.,) was a

party. This case

is no doubt directly in point and

this Court by

holding that where under

an award an. interest is created in favour of a

widow that she should be entitled to rent out the property for her

!if~

time, it was held by this Court that this amounted to a restricted estate

under

s. 14(2) of the 1956 Act.

Unfortunately the various aspects,

tnamely, the nature and extent of the Hindu women's right to· main­

tenance, the limited scope of snb-s. (2), which is a proviso to sub-s.

(1) of s." 14 and the effect of the Explanation etc., to which we have

adverted in this judgment, were. neither brought to our notice nor were

argued before us in that case. Secondly, the ground on which this

Court distinguished the earlier decision of this Court in Badri Parshad

v. Smt. Kanso Devi (supra) was that in the aforesaid decision the

Hindu

widow had a share or interest in the house of her husband

under the Hindu Law as it

was applicable then, and, therefore,' such a

share amounted to a

pr~existing right. The attention of this Court,

however,

was not drawn to the language of

t\Je Explanation to s.

14(1) where a property given to a widow at a partition or iu lieu of

maintenance had been placed in the same category, and, therefore. the

reason given by this Court does not appear to be sound. For the

reasons that we have· already given, after taking an overall view of

the situation, we are satisfied that the Division Bench decision of this

Court in Naraini Devi's case (supra) was not correctly decided and

js therefore. overruled.

Indeed, if the contrary view is accepted, it

will, in my

opininn,

'Set at naught the legislative process of a part of Hindu Law of the

intestate succession and curb the social urges and aspirations of lhe

Hindu women, particularly in the International Year of Women, by

reviving a highly detestable legacy which was sought to be buried by

the Parliament after independence

so that the new legislation

may march

with the time8. · ·· · ·

We would now like to summarise the legal conclusions which we

have reached after an exhaustive considerations of the authorities men­

tioned above on the question of law involved in this appeal as to the

(!) [1976] 1 s.c.c. 574.

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SUPREME COURT REPORTS [1977] 3 S.C.R.

"".~ ..

A interpretation oil' s. 14(1) and (2) ot the Act of 1956. These con­

clusions may be stated thus :

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( 1) The Hindu female's right to maintenance is not an empty for­

mality or an illusory claim being conceded as a matter. of grace and

generosity, but

is a tangible right against property which

flows from the

spiritual relatiouship between the husband and the

wife and is recognised

and enjoined by pure Shastric Hindu Law and has been strongly stressed

even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against pro­

perty and the hus_band has a personal obligation to maintain his wife

and if he or the family has property, the female has the legal right to

be maintained therefrom.

If a charge is created for

the maintenance

of a female, the said right becomes a legally enforceable

one. At any

rate, even without a charge the claim for maintenance

is doubtless

a pre-existing right so that any transfer declaring

or recognising such a

right

does not confer any new title but merely endorses or confinns the

pre-existing rights.

(2)

Section 14(1) and the Explanation thereto hav~ been couched

in the widest possible terms and must be liberally construed in favour

of the females so as to advance the object of the 1956 Act and promote

the socio-economic ends sought

to be achieved by this long needed legis-

lation.

(3) Sub-section (2)

of s. 14 is in the nature of a proviso

and has a

field of its own without interfering with the operation of s. 14(1)

materially. The proviso should not he construed in a manner so as to

destroy the effect of the main provision or the protectiou granted by s.

14(1) or in a way so as to become totally inconsistent with the main

provision.

( 4)

Sub-section (2) of s. 14 applies to instruments, decrees, awards,

gifts etc. which create independent and new titles in favour of the

females for the first time and has no application where the instrument

concerned merely seeks to confirm, endorse, declare

or recognise

pre­

existing rights. In such cases a restricted estate in favour of a female

is legally permissible and s. 14(1) will not operate in this sphere. Where,

however,

an instrument

merely declares or recognises a pre-existing

right, such

as a claim to maintenance or partition or share to which

the female

is entitled, the sub-sectiou has absolutely no application and

the female's limited interest wonld automatically be enlarged into an

absolute one by force of

s. 14(1) and the restrictions placed, if any,

under the document wonld have to be ignored. Thus

whern a property

is allotted or transferred to a female in lieu of maintenance or a share

at partition, the instrument is taken out of the ambit of sub-s. (2) and

would be governed bys. 14(1) despite any restriction~ placed on the

powers

of the transferee.

(5) The use of express terms like

"property acquired by a female

Hindu at a partition", "or in lieu of maintenance" "or arrears o~

maintenance" etc. in the Explanation to s. 14(1) clearly makes sub-s.

(2) inapplicable to these categories which have been expressly exceoted

from the operation of sub-s.

(2).

•

v. TULASAMMA v. v. SESHA REDD! (Fazal Ali,!.) 3 11

( 6) The words "possessed by" used by the Legislature in s. 14 (I)

are of the widest possible amplitude and include the state of owning "

property even though the owner is not in actual or physical possession

of the same. Thus, where a widow gets a share in the property undet

a preliminary decree before or at the time when the 1956 Act had been

passed but had not been given actual possession under a final decree,

the property

would be deemed to be possessed by her and by force

of

s. 14(1)

she1 would get absolute interest in the property. It is

equally well settled that the possession of the widow, however, must be

under some vestige of a clainI, right or title, because the section does

not contemplate the possession of any rank trespasser without any right

or title.

(7) That the words "restricted estate~ used in s. 4(2) are wider

than limited interest as indicated

ins. 14(1) and they include not only

limited interest, but also any other kind of limitation that may be placed

on the transferee.

Applying the principles enunciated above to the facts of the present

case,

we find-

(i) that the properties in suit were allotted to the appellant Tnla­

samma on July

30, 1949 under a compromise certified by the' Court;

(ii) that the appellant had taken only' a life interest in the proper­

ties and there was a clear restriction prohibiting her from alienating the

properties;

(iii) that despite these restrictions, she continued to be in posses­

sion of the properties till 1956 when the Act of 1956 came into force;

and

(iv) that the alienatious which she had made in 1960 and 1961

were after she had acquired an abwlnte interest in the properties.

It is, therefore, clear that the compromise by which the properties

were allotted to the appellant Tulasamma in lieu of her maintenance

were merely in recognition of her right to maintenance which was a

pre-existing right and, therefore, the case of the appellant would be

take11 out of. the ambit of s. 14 (2) and would fall squarely withi11 s.

14 ( 1) read with the Explanation thereto. Thus the appellant would

acquire an absolute interest when she was in possession of the proper­

ties at the time when the 1956 Act came into force and any restrictions

placed under the compromise would have to

be completely ignored. This

being the position, the High Court was

in error in holding that the

appellant Tulasamma would have only a

liniited interest in setting aside

the alienations made by her. Wei are satisfied that the High Court

decreed the suit of the plaintiffs on an erroneous view of the law.

The result

is that the appeal is allowed, the judgment and decree

of the High Court are set aside, the judgment of the District Judge,

Nellore is hereby restored and the plaintiffs' suit

is dismissed. In the

peculiar circumstances of this case and having regard to the serious

divergence of judicial opinion of the various Courts of India, we would

make

no order as to costs in this Court.

P.B.R. Appeal allowed.

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