# A VELAMURI VENKATA SIVAPRASAD (DEAD) BY L.RS v. KOTHURI VENKATESWARLU (DEAD) BY L.RS. AND ORS

- **Citation:** [1999] Supp. 4 S.C.R. 522
- **Court:** Supreme Court of India
- **Decided:** 1999-11-24
- **Case number:** Civil Appeal No. 425of1982
- **Bench:** S.B. Majmudar, M. Srinivasan, Umesh C. Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-velamuri-venkata-sivaprasad-dead-by-l-rs-v-kothuri-venkateswarlu-dead-by-l-rs-17020
- **Pages:** 31

## Headnote

Hindu Succession Act, 1956.
C
Section 14(1)-Limited estate/interest of widow-Re-marriage of widow
before coming into force of 1956 Act-Effect of-Held, re-marriage divesting
widow as limited owner of estate of her deceased husband-Section 14(1)
not applicable-No limited estate/interest subsisting on commencement of
1956 Act which gets converted into full ownership-Hindu Widow's ReD marriage Act, 1856-section 2.
Madras Hindu (Bigamy Prevention and Divorce) Act, 1949-Widow
contending that re-marriage was not valid in view of 1949 Act and claiming
benefit under 1956 Act-Prohibitory Statute-Interpretation of-Held,
statutory prohibition cannot be treated in aid of conferment of right -
E Prohibitive statute of 1949 not applicable in the facts as it would lead to
absurdity-Illegality and immoral conduct of widow established-Effect of- ·
Held, doctrine of sincerity and moral estoppel applicable-Widow cannot
take advantage of her own immoral conduct and illegality-Void marriageStatus of-Held, voidness of marriage not absolute nullity-Hindu Marriage
Act, 1955-Sections 11, 16,& 23(l)(a).
F
R executed will bequeathing properties to his mother V and provided
only some maintenance for his wife L It further provided that /,n,. case L adopted
<'.!
a boy of the choice of his mother who was to remain under guardianship of
'·
his mother V until attainment of majority, and in that event would be entitled
to certain properties specified in the will. After death of R. suits were filed by
G both Land V which ended in compromise and affirmed the will as true and
valid and recognised rights of both V and L in the properties. It further
provided that L shall adopt a boy of the choice of V within 7 years from date
of compromise and properties mentioned therein shall devolve upon the adopted
son. When there was no adoption by L within specified period, V filed suit for
H declaration that L was not entitled to adopt a boy under the compromise and
522
V. V. SJV A PRASAD v. KOT HU RI VENKATESW ARLU
523
"
that she herself was entitled to adopt a boy and levelled specific allegations of A
unchastity against L and contended that as a result L had lost all rights in
the estate of her husband. Suit was dismissed by the trial court and first
appellate court.
Thereafter, suit was filed by V and her daughter for declaration of title
B
and possession of suit properties on the ground that L did not take adoption
and also by reason of her re-marriage in 1953 she had lost all rights in the
properties of her husband R. Trial Court held that L had remarried and
adoption of defendant No. 8 by L was neither true nor valid, but dismissed the
suit. Appeal filed by adopted son of V was allowed by Single Judge. In further
appeal the Division Bench held that as a result of re-marriage of Lin 1953, c
L could not make adoption to her first husband but allowed appeal on the
ground that by virtue of Section 14(1) of the Hindu succession Act, 1956 preexisting right of L for maintenance from out of the property of her deceased
husband matured into absolute right in properties. Hence, this appeal.
The respondent contended that Section 4 (I) of the 1956 Act conferred D
over-riding effect and therefore, Section 2 of the Hindu Widows Re-marriage
Act, 1856 does not apply to extinguish rights of L; that re-marriage under
1856 Act should be valid marriage and re-marriage of L was nullity by virtue
of the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949; and that
social obligation to maintain wife could not be negated.
E
Allowing the appeal, the Court
HELD : I. The effect of re-marriage is available in the Hindu Widow's
Re-marriage Act, 1856. Section 2 of the 1856 Act has taken away the right
of widow in the event of re-marriage and the statute is very specific to the
F
effect that the widow on re-marriage would be deemed to be otherwise dead.
The words" as if she had then died" are rather significant. The legislature
intended therefore that in the event of a re-marriage, one loses th

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. A
VELAMURI VENKATA SIVAPRASAD (DEAD) BY L.RS.
B
I
v.
KOTHURI VENKATESWARLU (DEAD) BY L.RS. AND ORS.
NOVEMBER 24, 1999
[S.B. MAJMUDAR, M. SRINIVASAN AND
UMESH C. BANERJEE, JJ.]
Hindu Succession Act, 1956.
C
Section 14(1)-Limited estate/interest of widow-Re-marriage of widow
before coming into force of 1956 Act-Effect of-Held, re-marriage divesting
widow as limited owner of estate of her deceased husband-Section 14(1)
not applicable-No limited estate/interest subsisting on commencement of
1956 Act which gets converted into full ownership-Hindu Widow's ReD marriage Act, 1856-section 2.
Madras Hindu (Bigamy Prevention and Divorce) Act, 1949-Widow
contending that re-marriage was not valid in view of 1949 Act and claiming
benefit under 1956 Act-Prohibitory Statute-Interpretation of-Held,
statutory prohibition cannot be treated in aid of conferment of right -
E Prohibitive statute of 1949 not applicable in the facts as it would lead to
absurdity-Illegality and immoral conduct of widow established-Effect of- ·
Held, doctrine of sincerity and moral estoppel applicable-Widow cannot
take advantage of her own immoral conduct and illegality-Void marriageStatus of-Held, voidness of marriage not absolute nullity-Hindu Marriage
Act, 1955-Sections 11, 16,& 23(l)(a).
F
R executed will bequeathing properties to his mother V and provided
only some maintenance for his wife L It further provided that /,n,. case L adopted
<'.!
a boy of the choice of his mother who was to remain under guardianship of
'·
his mother V until attainment of majority, and in that event would be entitled
to certain properties specified in the will. After death of R. suits were filed by
G both Land V which ended in compromise and affirmed the will as true and
valid and recognised rights of both V and L in the properties. It further
provided that L shall adopt a boy of the choice of V within 7 years from date
of compromise and properties mentioned therein shall devolve upon the adopted
son. When there was no adoption by L within specified period, V filed suit for
H declaration that L was not entitled to adopt a boy under the compromise and
522
V. V. SJV A PRASAD v. KOT HU RI VENKATESW ARLU
523
"
that she herself was entitled to adopt a boy and levelled specific allegations of A
unchastity against L and contended that as a result L had lost all rights in
the estate of her husband. Suit was dismissed by the trial court and first
appellate court.
Thereafter, suit was filed by V and her daughter for declaration of title
B
and possession of suit properties on the ground that L did not take adoption
and also by reason of her re-marriage in 1953 she had lost all rights in the
properties of her husband R. Trial Court held that L had remarried and
adoption of defendant No. 8 by L was neither true nor valid, but dismissed the
suit. Appeal filed by adopted son of V was allowed by Single Judge. In further
appeal the Division Bench held that as a result of re-marriage of Lin 1953, c
L could not make adoption to her first husband but allowed appeal on the
ground that by virtue of Section 14(1) of the Hindu succession Act, 1956 preexisting right of L for maintenance from out of the property of her deceased
husband matured into absolute right in properties. Hence, this appeal.
The respondent contended that Section 4 (I) of the 1956 Act conferred D
over-riding effect and therefore, Section 2 of the Hindu Widows Re-marriage
Act, 1856 does not apply to extinguish rights of L; that re-marriage under
1856 Act should be valid marriage and re-marriage of L was nullity by virtue
of the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949; and that
social obligation to maintain wife could not be negated.
E
Allowing the appeal, the Court
HELD : I. The effect of re-marriage is available in the Hindu Widow's
Re-marriage Act, 1856. Section 2 of the 1856 Act has taken away the right
of widow in the event of re-marriage and the statute is very specific to the
F
effect that the widow on re-marriage would be deemed to be otherwise dead.
The words" as if she had then died" are rather significant. The legislature
intended therefore that in the event of a re-marriage, one loses the rights of
even the limited interest in such property and after re-marriage the next heirs
of her deceased's husband shall thereupon succeed to the same. It is thus a
statutory recognition of a well reasoned pre-existing shastric law. The Act of G
1856 was in the Statute Book until the year 1983 and it only stands rejected
by Act 24of1983. [535-A, B; 534-H[
I
2.1 The Madras Hindu (Bigamy Prevention and Divorce) Act, 1949 being
penal in nature, was introduced in the Statute Book to prohibit bigamous
)
marriages and to provide for a right of divorce on certain grounds as H
524
SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.
A mentioned therein-statutory prohibition cannot be treated to be in aid of
.(
conferment of right: it is a prohibitory statute and not a conferring statute.
[539-D[
2.2. Any mechanical and literal applicability of the Act of 1949 would
B
lead to incongruity as well as absurdity since in the event the widow is married
to a person without having a spouse living-the widow divests herself of any
right to deceased husband's properties by reason of Section 2 of the Act of
1856, but in the event the widow is married to a person with a spouse living,
the same tantamounts to no marriage and resultantly entitlement under the
general law would be available to the widow: what has been prohibited would,
c in effect, amount to conferment of a right of inheritance on the deceased
husband's property this is contrary to all cannons of law. The Prohibitive
statute of 1949 cannot possibly have its operation extended in the contextual
facts as otherwise the same would lead to a total absurdity in the facts of the
present case and which in any event ought always to be avoided. [539-F[
D
2.3. The issue that re-marriage of L was a nullity by virtue of the
provisions of the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949
cannot be agitated at this juncture by reason of the fact that the same stands
concluded by the Trial Court as well as the first appellate court. In the
companion Letters Patent Appeal, the Division Bench has confirmed the
E
finding that L re-married in 1953. This judgment inter partes has become
final. No Special Leave Petition is filed by the appellants against the said
decision even though they claim their interest through L. Hence, the finding
that L re-married in 1953 has become res-judicata between the parties.
[535-H; 536-A; 545-A-B)
F
3. The contention that marriage being void in terms of the provisions of
the Act of 1949 cannot hold good in any event Voidness of a marriage cannot
be termed to be an absolute nullity. Hindu Marriage Act provides annulment
of the marriage under Section II and the same statute under Section 16
legitimised the children of otherwise void marriages. It is thus a.statutory
recognition of limited voidness and not a nullity. [543-B; 544-BI
G
R. Thiruvirkolam v. Presiding officer and Anr., [1997] 1 SCC 9 and
State of Kera/a v. MK. Kunhikannan Nambiar Manjeri Manikoth, Naduvil
(dead) and Ors., [1996[1 SCC 435, relied on.
Bhaurao Shankar Lokhande and Anr. v. The State of Maharashtra and
H Anr., AIR (1965) SC 1564, distinguished.
0,
V. V. SIV AP RA SAD v. KO THUR! VEN KA TESW ARL\)
525
Wade's Administrative Law, 7th Ed., referred to.
A
4.1. In the contextual facts, the doctrine of sincerity has its due
application. L cannot take advantage of her own immoral conduct and illegality
to confer upon herself a right to continue to get maintenance from the
properties of her deceased husband under the consent decree. The sister of L
in no uncertain terms stated before the Court that L bore a baby through S in B
1952 and her (the sister's) husband married Lin 1953. Thereafter L gave
birth in 1954 to a daughter and subsequently to another son in the same year.
L is said to have retained the right of maintenance from the deceased
husband's estate by reason of the Act of 1949. This is, to say the least a
travesty of correct legal position. There is some moral estoppel also. It is C
only the estate which was attractive to her and the subsequent purported
adoption by L to her late husband when there were already two sons, through
the brother-in-law bore ample testimony of her immorality disentitling her
any continued maintenance from her deceased husband's estate. L has thus
three children and in spite thereof attempted to have an adoption established
in favour of her own son before a court of law in the name of the deceased D
husband, simply by reason of the fact that deceased R permitted certain
properties to be given to the adopted son-the interest is only property. The
doctrine of sincerity, therefore, plays as a bar to such a construction being
put on a prohibitory statute. No doubt the 'doctrine of insincerity' must be
applied with great care and even where approbation is proved, the court has E
discretion as to what weight is to be given to it.
(539-C; 541-C; 541-F; 543-F)
4.2. The general doctrine of approbation and reprobation which is an
aspect of equitable estoppel is not peculiar to English Law and as a matter of
fact Section 23(1) (a) of the Hindu Marriage Act, 1955 does give statutory p
recognition to the said equitable principle. (542-81
NewBihar, BiriLeavesCo. and Ors. v.StateofBihar& urs. AIR,(1981)
SC 679 at 692, affirmed.
G (The Husband) v. M (The Wife) LR 10 AC, 171, referred to.
G
Derett's Critique of Modern Hindu Law; Mu/la's Principles of Hindu
Law, 6th Edn. Page 713, referred to.
5. The courts ought always to adopt a construction of the statute which
)
will enure to the benefit of the society and eschew such a construction which H
526
SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.
A may adversely affect the society. Morality and law cannot but be equated with
each other; what is legal is moral and as s,uch morality cannot be differentiated
from the law. 1541-H; 542-A)
B
6. Subsequent unchastity will not make a widow forfeit the property
which she has succeeded to her husband on his death. [546-C)
Maniram Kolita v. Keri Kolitany, 5 Cal. 776 P.C. and Lakhmi Chand v.
Mt. Anandi, AIR (1935) PC 180, relied on.
Ramaiya v. Mottayya, AIR (1951) Madras 954, approved.
7.1. The Act of 1856 does not stand abrogated or repealed by the
C Succession Act of 1956 and it is only by Act 24 of 1983 that the Act stands
repealed. In the contextual facts of the matter and since the factual situation
of re-marriage of Lin the year 1953 stands proved, Section 2 of the Hindu
Widow's Re-marriage Act, 1956 gets attracted. As a result thereof L's right
to get maintenance from her deceased husband's property came to an end on
D her civil death qua her ex-husband's estate latest by 1953. Hence, there was
no subsisting legal right of maintenance available to L qua her deceased
husband's estate in any of his properties nor was there a subsisting limited
interest of hers in any of those properties which got matured into full
ownership under Section 14(1) of the Hindu Succession Act when it came
into force. 1551-C; 548-D-E)
E
7.2. The Succession Act of 1956 is prospective in operation and in the
event of a devastation prior to 1956, question of applicability of Section 14(1)
would not arise since on the date when it applied, there was already a remarriage disentitling the widow to inherit the property of the deceased
husband. The Act of 1856 had its full play on the date of re-marriage itself,
F as such Succession Act could not confer the widow who has already remarried, any right in terms of Section 14(1) of the Act of 1956. The Succession
Act of 1956 has transformed a limited ownership to an absolute ownership
ey
but it cannot be made applicable in the event of there being a factum of pre
divestation of estate as a limited owner. If there existed a limited estate or
G interest for the widow, it could become absolute but if she had no such limited
estate or interest in lieu of her right of maintenance from out of deceased
husband's estate, there would be no occasion to get such non-existing limited
right converted into full ownership right. 1549-A-B-C)
V Tulasamma & Ors. v. Sesha Reddy (dead) by L.Rs., [1977) 3 SCC 99;
H Raghubir Singh v. Guiab Singh, (1998( 6 SCC 324; C. Masilamani Mudaliar
··,
V. V. SIVAPRASAD v. KOTHURI VENKATESWARLU [BANERJEE, J.] 527
and Ors. v. The Idol of Sri Swaminathaswami Swaminathaswami Thirukoli A
and Ors., AIR (1996) SC 1697 and Vimala (K) v. Veeraswamy (K) [1991) 2
sec 375, distinguished.
Chinnappavu Naidu v. Meenakshi Amma/ and Anr.,, AIR (1971) Mad.
453, held inapplicable.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 425of1982.
From the Judgment and Order dated 31.3. 78 of the Andhra Pradesh High
Court in L.P.A.No.20of1977.
B
R. Sundaravaradan K. Ram Kumar and Ms. Shantinarayan for the C
Applleants.
L. Nageshwara Rao, C. Mohan Rao, Azim H. Laskar, G. Ramakrishna
Prasad and S. Udaya Kumar Sagar for the Respondents.
The Judgment of the Court was delivered by
BANERJEE, J. Two specific questions arise for determination in this
appeal by the grant of special leave against a Bench decision of the Andhra
Pradesh High Court: Firstly, whether re-marriage of a widow prior to Hindu
Succession Act, 1956 would divest her of even the limited ownership of her
deceased husband's property, having due regard to the provisions of Section
D
2 of Hindu Widow's Re-marriage Act, 1856 (hereinafter referred to as 'the Act E
of 1856'); and secondly, whether disqualification of inheritance, if any, by
reason of re-marriage would stand obliterated by reason of the provisions of
the Madras Hindu (Bigamy Prevention and Divorce)fct, 1949.
The factual score in the Appeal presently before us reveals that one
Rosaiah was the owner of a large extent of properties. He died in February, F
1937 leaving behind him his wife Lakshmamma and mother Venkayamma.
Rosaiah executed a will on I Ith January, 1937 wherein he bequeathed all his
properties to his mother Venkayamma. Apart from providing some maintenance,
Rosaiah did not provide anything else to his wife Lakshmamma. As a matter
of fact in the will he stated that his wife Lakshmarnma was not obedient to G
him and th'at her father with her aid was trying to knock off all his properties
· and that his wife was also not living with him. He however in the will provided
that, in case his wife was prepared to take a boy of his mother's choice, in
. adoption, she could do so but the boy so adopted should be under the
guardianship of his mother until attainment of majority and in that event
4
would be entitled to certain properties as specified in the will.
H
528
SUPREME COURT REPORTS [1999) SUPP. 4 S.C.R.
A
Factual score further depicts that after the death. of Rosaiah, Lakshmamma
filed a suit (OS No. 52 of 1939) for a declaration as regards her entitlement
to all the properties of her husband. The mother, in her tum, also filed another
suit for administration of the estate, on the basis of the will mentioned above
(OS No. 42 of 1940). It appears from the records that there was in fact a
B compromise decree between both the mother and the wife of Rossiah which
was recorded by the Court on 19th April 1942. In the compromise memo
Lakshmamina has been referred to as the plaintiff, while Venkayamma, the
mother as the first defendant. Clause (a) of the said compromise ~xpressly
affm:ned the will put forward by the mother, Venkayamma as true and valid and
the properties of Rosaiah were categorised into three schedules, appended to
C the said Memo of compromise. Properties mentioned in Schedule- I were
jointly given to both the said ladies with absolute rights. While properties
mentioned in Schedule-II were given to both of them jointly with a life estate
only. Schedule-III contains three items. Items I and 2 were given to the
mother, while item ~ was given to the wife. Clause (f) of the said memo of
compromise p(ovided as follows:-
D
E
F
G
"(f) The !st defendant is agreeable that plaintiff shall continue the
lineage of late Rosaiah by adopting a boy of her choice within 7 years
from now, from the family ofVelamuri people or from the family of any
other person of the (same) Gotram or from out of the boys of her
younger sister as provided within the will executed on 11.1.193 7 by
the late Rosaiah and receiving him as the adopted son of her husband.
As soon as the adoption takes place, the immovable property
mentioned in Schedule-II, attached hereto and retained by the plaintiff
and the !st defendant with life-interest the 2nd item in its entirety and
half of 3rd item mentioned in Schedule III other than the portion
necessary for the residence of the plaintiff and the 1st defendant till
·their life-time and the plate and cup being used by the plaintiff and
the iron safe, pot ( ) and 'Panakapu Binde' being used by the 1st
· defendant present out of the silverage given to Late Rosaiya at the
time of the marriage shall be developed on the adopted son himself
and he himself shall have absolute rights to the said items ...... '.'.
Admittedly there is no adoption by Lakshamamma within the period
prescribed as contemplated in clause (f) above and by reason therefor,
Venkayamma the mother, filed a fresh suit (OS 93 of 1950) for a declaration
that since Lakshmamma failed to take on adoption, as provided by clause (f)
H above, she was not entitled to do so thereafter, and for a further declaration
<
\
V.V. SIVA PRASAD v. KOTHURI VENKATESWARLU [BANERJEE, J.) 529
that she herself was entitled to adopt a boy. In the plaint filed and as the A
records depict, Venkayamma levelled specific allegations of unchastity against
Lakshmamma and contended that by reason of the fact of leading a life of
unchastity, Lakshmamma lost all her rights in her husband's estate. The said
suit was however dismissed and an appeal being AS No. 344 of 1953 was
preferred to the High Court against the dismissal of the suit (No. 93of1950). B
The facts reveal that the appeal came up for hearing on 8th March, 1958 and
it is on the date of hearing counsel for the appellant Venkayamma conceded
that by reason of the p~ovisions of the Hindu Adoption and Maintenance
Act, 1956 (Act No. 78 of 1956) even a success in the appeal would not entitle
the appellant to adopt. The Appellate Court on the wake of the aforesaid,
dismissed the appeal.
C
In 1969 as the records depict, the present suit (O.S. No. 44 of 1969)
was filed by Venkayamma and her daughter Sitarammamma asking for a
declaration of title to the suit properties and for possession of the properties
mentioned in the plaint Schedule 'A' and 'B' and for mesne profits on the
ground that since Lakshmamma did not take the adoption and also because D
of her re-marriage in 1953, she had lost all her rights and the same in any event
stood forfeited so far as the husband's properties were concerned and that
Venkayamma was otherwise exclusively entitled to the same.
Incidentally, be it noted that Venkayamma in the suit ~lated that she has
relinquished all her rights in favour of Sitharamamma and therefore the latter E
was imp leaded as the second plaintiff. Besides, the allegation of re-marriage,
Venkayamma also attributed unchastity to Lakshmamma. In the said suit, nine
defendants were impleaded. !st defendant is Lakshmamma while defendants
2 to 4 were impleaded on the ground that they have been inducted into
possession of the 'B' schedule properties in suit by the 1st defendant. F
Defendants 5 to 7 were impleaded on the ground that they were the alienees
from the first defendant and the 8th defendant was impleaded because he was
supposed to be the adopted son of the first defendant, while the 9th defendant
was said to be the joint purchaser along with defendants 3 and 4 of some of
the suit properties.
·
In the written statement, Lakshmamma's defence was that she did take
a boy being the 8th defendant by way of a valid adoption. While denying
the re-marriage she pleaded the bar of res-judicata with respect to the allegation
of unchastity. The 8th defendant in his written statement asserted his own
adoption whereas the other alienees substantially adopted the defence taken
G
t
by Lakshmamma. The Trial Court on final disposal recorded a definite finding H
530
SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.
A as regards the issue on unchastity being barred by the doctrine of res-
(
judicata. But in regard to the issue ofre-marriage in August, 1953, the same
was found to be otherwise correct as a matter of fact. Trial Court further held
that whatever properties were given to Lakshmamma under the memo of
compromise became her absolute properties by virtue of Section 14 of Hindu
B Succession Act. Two other issues were raised before the Trial Court namely;
the issue of adoption of 8th defendant and the suit being barred by the laws
of limitation. The last issue of limitation was answered in the affirmative, the
plea of adoption was negatived and the Trial Court came to a conclusion that
no such adoption can even be valid also.
C
The'factual score further reveals that Venkayamma died pending the
. suit and the 3rd plaintiff was brought on record as her adopted son: The 2nd
plaintiff Sitharamamma also died after the judgment of the trial court and
before the filing of the appeal. The appeal before the learned Single Judge of
the Andhra Pradesh High Court was preferred only by the 3rd plaintiff in the
suit being the adopted son of Venkayamma.
D
E
We may now deal with the twin issues noted at the beginning of the
judgment.
Re-first Issue:
Conversion of limited ownership into an absolute one under Section
14(1) of the Hindu Succession Act did come up for judicial scrutiny
intermittently before this Court and the law in regard thereto stands settled
by the decision in Tulasamma's case V. Tulasamma &Ors. v. Sesha Reddy
(dJ by LRs., [1977] 3 sec 99.
Admittedly the decision in Tulasamma 's case (supra) is holding the field
F till date without even any semblance of dissention in all subsequent decisions.
We also ~o not wish to sound any different note in that regard. In paragraph
<
20 of the Report Fajal Ali, J. laid down certain propositions as regards Hindu
<
G
H
women's rights to maintenance and we cannot resist but to quote the same
herein below in extenso as useful refresher:
"(!) that a Hindu woman's right to maintenance is a personal
obligation so far as the husband is concerned, 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 becomes an equitable
charge on his property and any person who succeeds to the property
cares with it the legal obligation to maintain the widow.
f
•
r
V.V. SIVAPRASADv. KOTHURI VENKATESWARLU [BANERJEE,J.] 531
(2) though the widow's right to maintenance is not a right to property A
but it is undoubtedly a pre-existing right in property, i.e. it is a )us ad
rem notjus in rem and it can be enforced by the widow who can get
a charge created for her maintenance on the property 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 B
importance that even if the joint property is sold and the purchaser
has notice of the widow's right to maintenance, the purchaser is
legally bound to provide for her maintenance;
( 4) that the right to maintenance is undoubtedly a pre-existing right C
which existed in the Hindu Law long before the passing of the Act
of 193 7 or the Act of 1946, and is, therefore, a pre-existing right;
(5) that the right to maintenance flows from the social and temporal
relationship between the husband and the wife by virtue of which the
wife becomes a sort of co-owner in the property of her husband, D
though 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 for her E
maintenance."
Undisputably the Hindu Succession Act, 1956 in particular Section 14
has introduced far reaching changes having due re_gard to the role and place
of womanhood in the country on the basis of the prevailing socio-economic
perspective. It is now a well-settled principle of law that legislations having F
socio-economic perspective ought to be interpreted with widest possible
connotation as otherwise, the intent of the legislature would stand frustrated.
Recognition of Rights and protection thereof thus ought to be given its full
play for which the particular legislation has been introduced in the Statute
Book. Gender bias is being debated throughout the globe and the basic G ·
structure of the Constitution permeates equality of status and thus negates
gender bias. Gender equality is one of the basic principles of our Constitution.
The endeavour of the law court should thus be to give due weightage to the
requirement of the Constitution in the matter of interpretation of statutes
wherein specially the women folk would otherwise be involved. Tile legislation
of I 956 therefore, ought to receive an interpretation which would be in H
532
SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.
A consonance with the wishes and desires of framers of our Constitution. We
ourselves have given this Constitution to us and as such it is a bounden duty
and an obligation to honour the mandate of the Constitution in every sphere
and interpretation which would go in consonance therewith ought to be had
without any departure therefrom. Tulasamma 's case obviously having this in
B mind decided the issue and attributed the widest possible connotation to the
words used in Section 14( I) of the Act of 1956. The decision in Tulasamma 's
case from time to time came up for consideration before this Court and the
same stands accepted without any variation as noted herein before. One of
the latest decisions where Tulasamma 's case has been considered, is the
decision of this Court in the case of Raghubir Singh v. Guiab Singh, [ 1998]
C 6 SCC 324, wherein Dr. Justice A.S. Anand, Chief Justice speaking for the
Bench in paragraphs 24 and 26 of the Report observed:-
D
E
F
G
"24. Accordingly, we hold that the right to maintenance of a Hindu
female flows from the social and temporal relationship between the
husband and the wife and that right in the case of a widow is "a preexisting right", which existed under the Shastric Hindu Law long
before the passing of the 1937 or the 1946 Acts. Those Acts merely
recognised the position as was existing under the Shastric Hindu law
and gave it a "statutory" backing. Where a Hindu widow is in
possession of the property of her husband she has a right to be
maintained out of it and she is entitled to retain the possession of that
property in lieu of her right to maintenance.
26. It is by force of Section 14(1) of the Act, that the widow's limited
interest gets automatically enlarged into an absolute
right
notwithstanding any restriction placed under the document or the
instrument. So far as sub-section (2) of Section 14 is concerned, it
applies to instruments, decrees, awards, gifts etc., which create an
independent or a new title in favour of the female for the first time.
It. has no application to cases where the instrument/document either
declares or recognises or confirms her share in the property or her
"pre-existing right to maintenance" out of that property. As held in
Tulasamma case sub-section (2) of Section 14 is in the nature of a
proviso and has a field of its own, without interfering with the operation
of Section 14( I) of the Act."
It would be convenient, however, at this juncture to note the exact
H language of Section 14. Section 14 reads as below:
V.V. SIVAPRASAD v. KOTHURI VENKATESWARLU [BANERJEE,J.) 533
"14. Property of a female Hindu to be her absolute propertyA
(1) Any property possessed by a female Hindu, whether acquired
before or after the commencement of this Act, shall be held by her as
full owner thereof and not as a limited owner.
Explanation- In this sub-section 'property' includes both movable and B
immovable property acquired by a female Hindu by inheritance or
devise, or at a partition, or in lieu of maintenance or arrears of
maintenance, or by gift from any person, whether a relative or not,
before, at or after her marriage, or by her own skill or exertion, or by
purchase or by prescription, or in any other manner whatsoever and
also any such property held by her as stridhana immediately before C
the commencement of this Act.
(2) Nothing contained in sub-section ( 1) shall apply to any property
acquired by way of gift or under a will or any other instru:nent or
under a decree or order of a civil court or order an award where the D
terms of the gift, will or other instrument or the decree, order or award
prescribe a restricted estate in such property."
Having due regard to the language as above introduced by Section 14
question of attributing a different interpretation, apart from what has been
given in Tulasamma's case, does not arise but needless however to note that E
in order to have the provision applicable there shall have to be some right
existing and not de hors the same. In Raghubir's case (supra) the Shastric law
has been taken recourse to in order to ascribe a pre-existing right so far as
the widow is concerned by reason of the social and temporal relationship
between the husband and the wife during the life time of the husband and
the solemn obligation of the husband towards the wife. Hindu marriage is not F
a mere formality or a contract but has its due religious sanctity even in the
present day society. Homam i.e. oblation to fire and Saptapadi (seven steps
together ) are bdng observed in order to have a holy union between the
husband and the wife. In this context, the observations in the decision of
Raghubir Singh's case seem to be apposite and in paragraph 14 of the Report, G
Dr. Anand, CJ observed:-
"According to the old Shastric Hindu law, marriage between two
Hindus 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 becomes
a part and parcel of the body of the husband. She is, therefore, called H
534
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B
SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.
ardhangani. It is on account of this status of a Hindu wife, under the
Shastric Hindu law, that a husband was held to be under a personal
obligation to maintain his wife and where he dies possessed of
properties, then his widow was entitled as of right, to be maintained
out of those properties. The right of a Hindu widow to be maintained
out of the properties of her deceased husband is, thus a spiritual and
moral right, which flows from the spiri!ual and temporal relationship
of husband and wife, though the right is available only so long as the
wife continues to remain chaste and does not remarry."
There is therefore no difficulty in appreciating the observations of this
C Court in Tulasamma 's case or in Raghubir 's case but the issue here as noticed
above, is slightly different on the factual score and neither of the decisions
can lend any assistance to the respondents herein.
The Division Bench of the Andhra Pradesh High Court unfortunately
has not been able to appreciate the admitted re-marriage of Lakshmamma in
D the year 1953. Re-marriage is a fact which ought to be taken note of in the
matter under consideration and it is this change of status, by reason of remarriage, falls for determination in the present appeal. While there is no
amount of doubt that by reason of the well settled law as laid down by this
Court, to the effect that a limited right of maintenance permeated into an
E absolute right under Section 14 ( 1) of the Hindu Succession Act but would
the effect be the same, in the event of there being a re-marriage of the widow
prior to 1956? The Act of 1956, incidentally is prospective in its operation and
no element of retrospectivity can be attributed therein. The effect of remarriage is available in t:1e Act of 1856. Section 2 thereof reads as below:
F
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"2. All rights and interests which any widow may have in her deceased
husband's property by way of maintenance or by inheritance to her
husband or to his lineal successors, or by virtue of any will or
testamentary disposition conferring upon her, without express
permission to re-marry, only a limited interest in such property, with
no power of alienating the same, shall upon her re-marriage cease and
determine as if she had then died; and the next heirs of her deceased
husband, or other persons entitled to the property on her death, shall
thereupon succeed to the same."
Incidentally, the Act of 1856 was in the Statute Book until the year 1983
H and it only stands repealed by Act 24 of 1983.
.('
...
i
...
.1
"'
•
V.V. SIVAPRASAD v. KOTHURI VENKA TESWARLU [BANERJEE, J.)
535
Section 2 of the Act 1856, therefore, has taken away the right of widow A
in the event of re-marriage and the Statute is very specific to the effect that
the widow on re-marriage would be deemed to be otherwise dead. The words
"as if she had then died" (emphasis supplied) are rather significant. The
legislature intended therefore that in the event of a re-marriage, one loses the
rights of even the limited interest in such property and after re-marriage the B
next heirs of her deceased's husband shall thereupon succeed to the same.
It is thus a statutary recognition o~ a well reasoned pre-existing shastric law.
An attempt has however been made as regards overriding effect of
Hindu Succession Act in terms of Section 4(1) thereof. Section 4(1) provides
as below:-
"4. Overriding effect of Act-( I) Save as otherwise expressly
provided in this Act,-
c
(a) any text rule or interpretation of Hindu law or any custom or
usage as part of that law in force immediately before the commencement D
of this Act shall cease to have effect with respect to any matter for
which provision is made in this Act;
(b) any other law in force immediately before the commencement of
this Act shall cease to apply to Hindus insofar as it is inconsistent
with any of the provisions contained in this Act.
E
(2)
For the removal of doubts it is hereby dechred that nothing
contained in this Act shall be deemed to affect the provisions of any
Jaw for the time being in force providing for the prevention of
fragmentation of agricultural holdings or for the fixation of ceilings or
for the devolution of tenancy rights in respect of such holdings."
F
Mr. Nageshwara Rao, learned counsel appearing for the respondents
contended that by reason of the overriding effect of the Act of 1956, question
of reliance on Section 2 of the Act of 1856 does not arise. On the next count
it was contended that re-marriage envisaged under Section 2 must be a valid
re-marriage and since Lakshmamma got married to a person while he was G
having a spouse living, being Lakshmamma's own sister's husband, that is
to say Lakshmamma got married to her own brother-in-law in the year 1953,
question of there being a valid re-marriage does not and cannot arise. It is
on this count, the learned counsel contended that the act of 1949 (The
Madras Hindu Bigamy Prevention and Divorce Act) which declares all marriages H
,
536
SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.
A wherein one spouse has a spouse living, be a nullity and as such question
of there being any valid marriage in tenns of the Act of 1856 does not and
cannot arise.
The above contentions fall squarely within the ambit of the second
issue noticed above and as such we refrain ourselves from making any
B comment thereon at this juncture and reserve the same for consideration in
the later part of this judgment.
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F
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On the issue as regards the applicability of Section 14( I) of the Act of
1956, B.P. Jeevan Reddy, J. (as His Lordship then was) hearing out the first
appeal has the following to observe:-
"The next question arises is, whether the life estate created in
Lakshmamma under Ex.A-I gets enlarged by virtue of Section 14(1) of
the Hindu Succession Act. For a proper appreciation of this question,
it is necessary to notice a few dates. The Hindu Women's right to
Property Act, 193 7 came into force on 1st April, 193 7. However, it was
not applicable to agricultural properties. It was made applicable to
agricultural properties only in 1946 by virtue of the Act passed by the
Madras Legislature. In any event, Rosaiah having died in February,
1937, prior to the enforcement of the Principal Act itself, Lakshmamma
cannot claim any right under the said Act. She would have been
entitled to widow's estate according to Hindu Law, but she was
deprived of even that, by virtue of the will (Ex. A-3) executed by
Rosaiah, and the truth and validity of which will was affinned by
.
Lakshmamma hereself in the Memo of Compromise, Ex.A- I. Once that
will is true it has to be given effect to and, according to it, Lakshmamma
had only a right to maintenance, and nothing more. Therefore, when
she was given certain properties, either absolute or for her life, under
the said Memo of Compromise, it must be said that rights in her in
respect of the said properties were created for the first time under and
by the said Memo of Compromise that she had no pre-existing rights
in the said properties. If so, according to the decisions of this Court
and other High Courts, emphasi.sing the distinction between and
applicability of sub-section (I) and sub-section (2) of Section 14 of
the Hindu Succession Act, it is sub-section (2) alone that applies, and
not sub-section (1 ). In other words, there is no more question of
enlargement of her right vide G.Konraiah v. G. Subbrabayudu, (1968)
II An ....... 455 were the earlier decisions of this Court and other High
H
Courts also are noted and referred to. To the similar effect is the
<
I
V.V. SIVAPRASAD v. KOT HU RI VENKATESWARLU [BANERJEE,J.) 537
·-.
Decision of the Madras High Court in Hussain Uduman v. Venkatachal A
Mudaliar, (1974) II, MLJ 275. Similarly the decision of the Supreme
· Court, Karmi v. Amrru, AIR 1971. Supreme Court 745 affirms that
where a life estate is created by a will executed by a husband in favour
of his wife, such a life estate does not got enlarged by virtue of
Section 14(1) but that it is governed by sub-section (2) only."
B
As regards the issue of re-marriage and the validity of the adoption so
far as the 8th defendant is concerned, learned Single Judge observed that the
findings have not been questioned in the appeal by anyone and as such no
exception can be taken in regard thereto. Insofar as the question of the suit
being barred under Section 113 of the Limitation Act, the learned Single judge c
has been pleased to answer the issue in the negative and on the basis of the
aforesaid, the learned Single Judge allowed the appeal in the manner following:-
"It is declared that the !st defendant has only a life-interest
alongwith the I st plaintiff, in the properties mentioned in Schedule II
to Ex.A- I and that, she has a life interest only even in item 3 of D
Schedule III to Ex.A-I and that, the alienations made by her in favour
of the other defendants are not binding upon the plaintiffs, insofar as
the said alienations pertain to the properties mentioned in Schedule
II or to item 3 in Schedule III, appended to Ex.A-I. In so far as the
properties mentioned in Schedule I to Ex.A- I are concerned, the 1st
defendant has an absolute interest, alongwith the !st plaintiff herein. E
Plaintiffs are, however, not entitled to immediate possession of the
properties mentioned in Schedule II and item 3 in Schedule III to ExAI, inasmuch as the !st defendant has a life-interest therein. They shall,
however, be entitled to the possession of the said properties after the
life-time of the I st defendant.