# • v. THAKORBHAI CHELABHAI AND ORS

- **Citation:** [1979] 3 S.C.R. 291
- **Court:** Supreme Court of India
- **Decided:** 1979-02-20
- **Case number:** Civil Appeal No. 2434 of 1977
- **Bench:** P. S. Kailasam, D. A. Desai, A. D. KosHAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-thakorbhai-chelabhai-and-ors-7792
- **Pages:** 22

## Headnote

Hindu Succession Act, 1956, Section 14(1) and (2), Scope of-Interpreta-
) -Oon of Statute-Legislature does not e111ploy n1eaningles~ language .
.
-~
c
-,
..
As per the decree in a partition suit dated August, 18, 1909 Motabbai an.:t
two sons of Mohanbhai being two predecessors in interest of the
plaintiffs
respondents \Vere burdened with the responsibility of paying an yearly maintenance allowance of Rs. 42/- to Btai Vajia appellant on Magsher Sud 2 of every
year. The decree further provided that in the event of default in payment of
'SUCh allowance continuing for a period of a month
after the due date,
Bai
D
Vajia_ would be entitled to take possessi9n of the land allotted to them nod.er
the decree viz. Survey Nos. 31, 403, 591, 611, 288 and 659/3 in lieu of the
maintenance awarded to her and would enjoy the income thereof without however being competent to sell, mortgage, bequeath, gift or otherwise transfer
the same. The decree declared that any alienation made by Bai Vajia in contravention of the direction given by the decree in that behalf would be void .
.By clause 8 of the decree Motabhai and, sons of Mohanbbai were also deprived
E
of the right of alienati.,pn of the land during the lifetime of Bai Vajia. Default
having been made in the payment of maintenance to her according to the
terms of the decree, the appellant, took out execution and obtained possession
.of the lands in question, which she continued to enjoy till October 21,
1963
when she made a sale of -Survey No. 31 in favour of one D. P. Desai. The sale
was challenged by the plaintiffs in Civil Suit No. 110/66 \1lhich was decreed by
the trial court. The District Court in first appeal conftrn1ed it and the lJigh
F
_,,.........,_Court in second appeal upheld the decree of Ba.i Vajia .
L
Allowing the appear of the Legal Representative by special leave, the Court.
HELD: 1. A con1bined reading of sub-sections (1) £n1d (2) of Section 14 of
the Hindu Succession Act and the Explanation following sub section (1) makes
it clear, that sub-section (2) does not operate to take property acquired by
a Hindu female in lieu of mainten1111ce or arrears of maintenance (\vhich is
property specifically included in the enumeration contained in this Explanation)
out of the purview of sub-section (1). [311 D-E]
. 2. For the applicability of sub-section (1) of Section 14 t\vb
conditions
G
must cocxis t namely.
H
(l) the concerned female Hindu must be possessed of property; and
B
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SUPREME COURT REPORTS
(1979] 3 s.c.it.
(2) such property must be possessed by her as a "limited owner".
If these two conditions are fulfilled, the sub section gives her the right to
~
hOld the property as a full owner irrespective of the fact whether she acquiro4
it before or after the commencement of the Act. [309 D-F]
A
The Explanation declares that the property mentioned in sub section (1) ,
includes both n1ovable and immovable property and then proceeds to enume~
rate the mod~s of acquisition of various kinds of property which the sub-sectio•
would embrace. Two such modes are "in lieu of maintenance or arrears of
maintenance", and "any such property held by her as Stridhana" immediately
before the commencement of the Act. It, therefore, follows that the Leg:islatu~: i.
in its wisdom took pains to specify all kinds of "Stridhana" in the Explanatio~
and declared that the same would form "property" within the meaning of that '
word e.s used in sub-section (i). This was done "to achie\le a social purpoSe by
..:--
bringing about change in the social and economic position of women in Hindu
Society". It was ao step in the direction of practical recognition of equality of th1
sexes and was meant to elevate women from a subservient position in the economic field to a pedestal where they could exercise full powers
of
enjoyment
and disposal of the property held by them as owners, untrammelled by artificial limitations placed on their right of ownership by a society in which tho
will of the dominant ma

## Text

_Characters 0–39,370 of 52,825. This is a partial read: ask again with offset=39370 for what follows._

291
BAI VAJIA (DEAD) BY L. RS .
A
•
v.
THAKORBHAI CHELABHAI AND ORS.
February 20, 1979
B
[P. S. KAILASAM, D. A. DESAI AND A. D. KosHAL, JJ.]
Hindu Succession Act, 1956, Section 14(1) and (2), Scope of-Interpreta-
) -Oon of Statute-Legislature does not e111ploy n1eaningles~ language .
.
-~
c
-,
..
As per the decree in a partition suit dated August, 18, 1909 Motabbai an.:t
two sons of Mohanbhai being two predecessors in interest of the
plaintiffs
respondents \Vere burdened with the responsibility of paying an yearly maintenance allowance of Rs. 42/- to Btai Vajia appellant on Magsher Sud 2 of every
year. The decree further provided that in the event of default in payment of
'SUCh allowance continuing for a period of a month
after the due date,
Bai
D
Vajia_ would be entitled to take possessi9n of the land allotted to them nod.er
the decree viz. Survey Nos. 31, 403, 591, 611, 288 and 659/3 in lieu of the
maintenance awarded to her and would enjoy the income thereof without however being competent to sell, mortgage, bequeath, gift or otherwise transfer
the same. The decree declared that any alienation made by Bai Vajia in contravention of the direction given by the decree in that behalf would be void .
.By clause 8 of the decree Motabhai and, sons of Mohanbbai were also deprived
E
of the right of alienati.,pn of the land during the lifetime of Bai Vajia. Default
having been made in the payment of maintenance to her according to the
terms of the decree, the appellant, took out execution and obtained possession
.of the lands in question, which she continued to enjoy till October 21,
1963
when she made a sale of -Survey No. 31 in favour of one D. P. Desai. The sale
was challenged by the plaintiffs in Civil Suit No. 110/66 \1lhich was decreed by
the trial court. The District Court in first appeal conftrn1ed it and the lJigh
F
_,,.........,_Court in second appeal upheld the decree of Ba.i Vajia .
L
Allowing the appear of the Legal Representative by special leave, the Court.
HELD: 1. A con1bined reading of sub-sections (1) £n1d (2) of Section 14 of
the Hindu Succession Act and the Explanation following sub section (1) makes
it clear, that sub-section (2) does not operate to take property acquired by
a Hindu female in lieu of mainten1111ce or arrears of maintenance (\vhich is
property specifically included in the enumeration contained in this Explanation)
out of the purview of sub-section (1). [311 D-E]
. 2. For the applicability of sub-section (1) of Section 14 t\vb
conditions
G
must cocxis t namely.
H
(l) the concerned female Hindu must be possessed of property; and
B
c
D
E
F
G
B
292
SUPREME COURT REPORTS
(1979] 3 s.c.it.
(2) such property must be possessed by her as a "limited owner".
If these two conditions are fulfilled, the sub section gives her the right to
~
hOld the property as a full owner irrespective of the fact whether she acquiro4
it before or after the commencement of the Act. [309 D-F]
A
The Explanation declares that the property mentioned in sub section (1) ,
includes both n1ovable and immovable property and then proceeds to enume~
rate the mod~s of acquisition of various kinds of property which the sub-sectio•
would embrace. Two such modes are "in lieu of maintenance or arrears of
maintenance", and "any such property held by her as Stridhana" immediately
before the commencement of the Act. It, therefore, follows that the Leg:islatu~: i.
in its wisdom took pains to specify all kinds of "Stridhana" in the Explanatio~
and declared that the same would form "property" within the meaning of that '
word e.s used in sub-section (i). This was done "to achie\le a social purpoSe by
..:--
bringing about change in the social and economic position of women in Hindu
Society". It was ao step in the direction of practical recognition of equality of th1
sexes and was meant to elevate women from a subservient position in the economic field to a pedestal where they could exercise full powers
of
enjoyment
and disposal of the property held by them as owners, untrammelled by artificial limitations placed on their right of ownership by a society in which tho
will of the dominant male prevailed to bring about a subjugation of the opposite sex. It was also a step calculated to ensure uniformity in the law relatin:
to the nature of ownership of 'Stridhana'. This dual purpose
underlying the
Explanation must be borne in mind and given effect to when the ecction ia aubjected to analysis and interpretation, and sub-section (2) is not to be given u
meaning which would defeat that purpose and negative the legislative intent,
if the language used so warrants. [309 F, 311 A-DJ
3. It is true that that it is only some kind of "limited ownership" that
Would get enlarged into full ownership and that where no ownership
at all
vested in the concerned Hindu Female, no question of lhe applicability of sub
section (1) of section 14 of the Act, would arise. [306 B-C]
4. A plain reading of sub section ( 1) of section 14 of the Act
makes~ it
_'
clear that the concerned Hindu female must have limited O\Vncrship in propert~J'.
which limited ownership would get enlarged by the operation of that sub sec~
tion. If it was intended to enlarge any sort of a right which could in no sense
be described as ownership, the expression "and not as a limited owners", would
not have been used at all and becomes redundant, which is against the well
known principle of interpretation of statutes that the Legislature does not employ
~
meaningless language. [306 H, 307 A]
...
Eran1ma v. Veerappanna and Ors., [1966] 2 SCR 626;
Mangat Singh and
f
Ors. v. Sritnati Rattno & Anr., [1967] 3 S.C.R. 454; reiterated.
5. Limited ownership in the concerned Hindu female is thus a sine qua non
for the applicability of sub section (I) of section 14 of the Act. In a case wbcro
this condition is fulfilled the Hindu female represents the estate completely and the
reversioners of her husband have only a spes succession is i.e. a mere chance of
•
>
BAI VAJIA v. THAKORBHAI (Koshal, J.)
293
s1n .. cession which is not a vested interest and a transfer of which is a nullity.
The widow is con1petent to protect the property from all kinds of tresspass and
tc sue and be sued for all purposes in relation thereto so long as she is alive .
Ownership in the fullest sense is a sum-total of all the rights which may possibly
11ow from title to property, while limited ownership in its very nature must
he a bundle of rights constituting in their totality not full ownership but somef ·,:ng less. [308 E-H]
\\1hen a wido\\' holds the property for her enjoyment as long as she lives,
nobody is entitled to d.!prive her of it or to deal with the property in any
manner to her detriment. The property is for the time being beneficially vested
in her and she has the occupation, control and usufruct of it to the exclusion
J of all others. Such a relationship to property falls squarely \Vithin the meaning
• ~if the expression "limited owner" as use<l in sub section (1) of Section 14 of
the Act. [308 H, 309A]
6. In the instant case : Bai Vajia became a full owner of the land in dispute under the provisions of sub-section (I) of section 14 of the Act and that
sub·section (2) thereof has no application to her case, the land having been
given to her as a limited o\vner and in recognition of her pre·existing right
against property. So long as she lived, she was to have full enjoyment of and
complete control over the land, barring any right to alienate it. Such a right was
aho taken a\vay from Motabhai and two sons of Mohanbhai. The arrangement
meant that whatever rights existed in relation to the land during the life-time
of Bai Vajia were exercisable by her alone and by nobody else. Not even the
said three persons could deal with the land in any n1anner whatsoever, and if
they did, Bai Vajia had the right to have their acts declared null and
void
during her life-time. After the land \Vas made over to her she became its owner
for life although \Vith a limited. right and therefore only as a limited owner.
Under the decree the land vested in 1\.-Iotabhai and sons of ~Iohanbhai only so
Jong: as they vverc not dispossessed of it at the instance of Bai Vajia in accordance \V~th the tern1s stated therein. As soon as Bai Vajia took possession of the
land, no rights of any kind whatsoever in relation thereto remained with them
and thus they ceased to be the owners for the span of Bai Vajia's life.
[311 G-H, 312 A-DJ
.:;;;....
.,,,, l". Tulasanuna and Ors. v. Sesha Reddy, [19771 3 S.C.R. 261; discussed in-
~
cxtenso •nd. followed.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2434 of 1977.
Appeal by Special Leave from the Judgment and
Order dated
T
4/5th November, 1976 of the Gujarat High Court in S.A. No. 685/
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69.
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U. R. La/it (A.C.), I. N. Shroff and H. S. Parihar for the Appellant.
S. T. Desai, Vimal Dave and Miss K. Mehta for the Respondent.
The Judgment of th~ Court was delivered by,
KosHAL, J.-The facts giving rise to this appeal by special leave
against a decree dated November 5, 1976 of the High Court of Gujarat
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SUPREME COURT REPORTS
[1979] 3 s.c.R.
A
may be better appreciated with reference to the following pedigree-
•
table :
NARANJI
B
Daby~bhai
Haribhai
c
D
E
F
G
H
Ranchhodji
Bhimbhai
(died childless in 1913)
Mohanbhai
··~
' .
Bhikbubhai
(Plaintiff 5)
Thakorbhai
(Plaintiff 6)
Parvatiben=Dayalji
(Plaintiff 8)
Nirrnalben
(Plaintiff 9)
NARANJI (contd.)
Gulabbhai
Motabhai
Dahyabhai
(Plaintiff T}
Padmilben
(Plaintiff 10)
Vallabhbhai
Nichhabhai =
Surbhai
Amba Bai
Bai Vijia
(Defendant I}
Ghelabhai
Lallubhai
(Plaintiff 3)
Chhotubhai
(Plaintiff 4)
Manibhai_.._
,,_,..,
Thako~bhai
(Plaintiff I)
:
Ramanbhai
PlaintiIT 2)
-...t.
2. In the year 1908 Ranchhodji son of Dahyabhai instituted Civil
•
Suit No. 403 of 1908 against Bhimbhai son of Haribhai, Dayalji and
Dahyabhai sons of Mohanbhai, Motabhai son of Gulabbhai, Bai Amba ~
widow of Nichhabhai and Bai Vajia widow of Surbhai, for a partition
I
of the joint Hindu family properties belonging to the parties. The
suit resulted in a decree dated August 18, 1909
which
provided,
inter alia, that Dayalji and Dahyabhai sons of Mohanbhai, and Motabhai son of Gulabbhai would be full owners of Survey Nos. 31 and
403 and also owners of a half share in Survey Nos. 591, 611, 288
•
'
BAI VAJIA v. THAKORBHAI {Koshal, J.)
295
and 659 /3. These persons were burdened by the decree with the responsibility to pay an yearly ml\intenance allowance of Rs. 42/- to Bai
Vajia on Magsher Sud 2 of every year and the decree further provided
that in the event of default in payment of such allowance continuing
for a period of a month after the due date, Bai Vajia would be entitled
to take possession of the land above-mentioned in lieu of the maintenance awarded to her and would enjoy the income thereof without
however being competent to sell, mortage, bequeath, gift or otherwise
transfer the same. The decree declared that any alienation made by
Bai Vajia in contravention of the direction given by the decree in that
A
• _. ~behalf wonld be void.
By clause 8 of the decree sons of Mohanbhai
as well as Motabhai were also deprived of the right of alienation of the
land dudng the lifetime of Bai Vajia.
Default having been made in the payment of maintenance to Bai
Vajia according to the terms of the decree, she took out execution
and obtained possession of the land above detailed. Thereafter Dayalji
c
and Dahyabhai sons of Mohanbhai deposited in comt the arrears of
Th
maintenance and filed an application with a prayer that the land of
which possession had been given to Bai Vajia in execution of the decree
be restored to them.
That application was dismissed on
the
8th
March 1912 and more than 2t years later, i.e., on
27th
October
1914, Dahyabhai son of Mohanbhai instituted Civil Suit No. 576 of
1914 in the court of the Additional Sub-Judge, Valsal, for a declaraE:
tion that the dismissal of his application was null and void and for
recovery of possession of the land which Bai Vajia had taken in execution of the decree.
The suit was decreed by the trial court but was
dismissed in first appeal on the 13th March 1918.
-
Bai Vajia continued to enjoy the land till the 21st October 1963
when she made a sale of Survey No. 31 in favour of one Dhirubhat
Paragji Desai.
The sale was challenged in Civil Suit No.
110 of
1966 by 10 persons being the heirs of Mohanbhai and Motabhai as
shown in the pedigree table above, the defendants being Bai Vajia and
the said Dhirubhai Paragji Desai. It was claimed by the plaintiffs
that Bai Vajia had no right to alienate in any manner the land obtained
I.
by her in execution as per the terms of the decree, that sub-section
( 1) of section 14 of the Hindu Succession Act (hereinafter referred
to as the Act) had no application to her case which was covered by
sub-section (2) of that section and that the sale by her in favour of
defendant No. 2 was null and void. Bai Vajia contested the suit and
contended that the sale was good in view of the provisions of subsection (1) abovementioned which enlarged her limited ownership
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SUPREME COURT REPORTS
[1979] 3 s.c.R.
into full and absolute ownership and that sub-section (2) aforesaid
did not cover her case.
The suit was decreed by the trial court and
Bai Vajia remained unsuccessful in the appeal which she instituted
in the court of the District Judge, Bulsar. A second appeal was filed
by her before the High Court of Gujarat and during the pendency
thereof she expired when one Dhirubhai Dayalji Desai was substituted
for her as her sole heir and legal representative. The appeal came up
for hearing before a learned Single Judge of the High Court who by
its judgment dated 5th November, 1976 dismissed it holding that the
decree passed in Civil Suit No. 403 of 1908 did not recognise any
"pre-existing" right of Bai Vajia in the property in
dispute. In~
coming to this conclusion, the learned Judge followed Narai11i Devi v.
,•.
Smt. Ramo Devi and others.(')
,-
The legal representative of Bai Vajia is the sole appellant in the
appeal before us, the respondents thereto being nine of the plaintiffs
and six legal representatives of plaintiff No. 5 as also the purchaser
from Bai Vajia who is arraigned as respondent No. 11.
2. At the outset it was pointed out by Mr. I. N. Shroff, learned
counsel for the appellant, that Naraini Devi's case (supra) has since
been over-ruled by the decision of this Court in V.
Tulasamma
&
others v. V. Sesha Reddi(') and we find that this is so.
In the case
last mentioned, the facts were these.
The husband of Tulasamma
died in the year 1931 in a state of jointness with his step-brother
V. Sesha Reddi. A decree for maintenance was passed in favour of
Tulasamma against V. Sesha Reddi on June 29, 1946. On the 30th
July 1949, a compromise between the contending parties was certified
by the Court executing that decree.
Under the compromise,
Tulasamma was allotted certain properties in lieu of maintenance, her
r!ght being limited to enjoyment there.of coupled with the specific condi- -~
t1on that she wonld not have any nght of altenatmn whatsoever.
, ,
Tulasamma took possession of those properties and continued to enjoy
them till the early sixties.
On 12th of April 1960 she leased out some
of the properties to two persons and on the 26th of May 1961 made a
sale of some others to another person.
V. Sesha Reddi filed a suit
on July 31, 1961 for a declaration that the alienations
made by
Tulasamma were not binding on him and could remain valid only so
~
long as she was alive.
The basis of the action was that Tulasamma
I
acquired a restricted estate under the terms of the compromise and
that her interest could not be enlarged under sub-section (1) of section 14 of the Act in view of sub-section (2) of that section.
The "'
(1) [1976] 3 S.C.R. 55.
(2\ fl97713 SCR 261
'
•
BAI VAJIA v. THAKORBHAI (Koshal, J.)
297
suit was decreed by the trial court whose decision however was reversed
in appeal by the District Judge, with a finding that the allotment of
properties to Tulasamma by the terms of the compromise had been
made in recognition of a "pre-existing" right-a finding which was
reversed by the High Court, who restored the decree passed by the
trial court.
The matter came up to this Court in appeal by special
leave and Fazal Ali, J., who wrote an exhaustive judgment thus formulated the two points falling for determination :
( 1) Whether the instrument of compromise under which
the properties were given to the appellant Tulasamma
before the Hirn'-
Succession Act in lieu of maintenance falls wi' a section 14 (I) or is
covered by
section 14(2) of that Act.
( 2) Whet9er 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
1t would amount to mere recognition of a pre-existing
right or a conferment of new title so as to fall
sguarely within section 14(2) of the Hindu Succession Act.
FaZ'al Ali, J., was of the opinion that the resolution of the dispute
made it necessary that the real legal nature of the incidents of a Hindu
widow's right to maintenance be considered.
He referred to various
works by celebrated authors on Hindu Law and in doing so
cited
passages fr<:im 'Digest' of Hindu Law' by Colebrooke, 'Hindu Law'
by G. S. Sastri, 'Hindu Law and Usage' by Mayne and 'Principles of
Hindu Law' by Mulla and· came to the conclusion that the widow's
~
.right to maintenance, though not an indefeasible right to property, is
"'
undoubtedly a "pre-existing" right.
A survey of various judicial pronouncements was then undertaken by Fazal Alj, 1., and as a consideration thereof he arrived at the following propositions :-
"(l) 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 carries with it the legal obligation to
maintain the widow.
20-196 SCI/79
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SUPREME COURT REPORTS
(1979] 3 s.c.R.
(2)' Though the widow's right to maintenance is not a
right to property but it is undoubtedly a pre-existing
right iu 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 property either by an agreement or by obtaining a decree
from the civil court.
(3) The right of mai'ntenanoo is a matter of moment and
is of such importance that even if the joint property
is sold and the purchaser has notiee of the widow's
right to maintenance, the purchaser is legally bound
to provide for her maintenance.
•
( 4) · The right to maintenance is undoubtedly a pre-existing right which existed in the Hindu Law long before
the passing of the Act of 193 7 (') or the
Act or
1946, (') and is therefore, a pre-existing right.
. -
( 5) 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 or
co-owner in the property of her husband, though her
co-ownership is of a subordinate nature.
(6) 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 arrangements for
her maintenance."
Fazal Ali, J ., then embarked on a consideration of the scope and
meaning of section 14 of the Act in the light of various pronounce-~
ments made by this Court as also of the decisions rendered by various
High Courts in relation to the points in dispute.
During the course
of the discussion he made the following pertinent observations :-
"It is true that a widow's claim for maintenance does
not ripen into a full-fledged right to property, but nevertheless it is undoubtedly 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 lieu of
(1) The Hindu Women's Right to Property Act.
(2) The Hindu Married Women's Right to Separate Maintenance and Residence
Act, 1946.
;
•
...
BAI VAJIA v. THAKORBHAI (Koshal, J.)
299
maintenance, it is given to her for the first time and not in
lieu of a pre-existing tight.
The claim to maintenance, as
also the right to claim,property in order to maintain herself,
is an inherent right conferred by the Hindn Law and, therefore, a~y 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 docum~nt 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 section 14 ( 1) merely
mentions the various modes 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-
~ection (2) is merely a proviso to section 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
section 14(1). Sub-section (2) is limited only to those
cases where by virtue of a 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 conditions, the same are binding
on· the male.
The effect of sub-section (2) is merely to
.equate male and female in respect of grant conferring a restricted estate."
>
•
~·
Finally, Fazal Ali, J., made a reference to Naraini
Devi's case
>
(supra) to which he himself was a party (apart from Sarkaria, J.,
who delivered the judgment of the Court) and in relation thereto made
the following observations :
•
'
"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 !ife"time, it was held by this Court that
this amounted .to a restricted estate under section
14(2)
of the 1956 Act.
Unfortunately
the
various
aspects,
namely, the nature and extent of the Hindu women's right
to maintenance, the limited scope of sub-section (2) which
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SUPREME COURT RllPORTS
[1979] 3 s.C.R.
is a proviso to sub-section ( 1) of section 14 and the effect
of the Explanation, etc., to which we have adverted in this
judgment, were neither brought to ~ur notice
nor
were
argued before us in that case.
Secondly, the
ground on
which this Court distinguished the earlier decision of thi>;
Court in Badri Parshad v. Smt. Kanso Devi(') 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 pre-existing right.
The attention of this
Court however, was not drawn to the language of the Explanation to section 14(1) where a property given to a
widow at a partition or in 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 Nara,ini Devi's case (supra) was not
correctly decided and is therefore overruled."
Su=arising the conclusions of law which Fazal Ali, J., reached after
an exhaustive consideration of the texts and authorities mentioned by
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him, he enumerated them thus :
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"(1) The Hindu female's right to maintenance is not an
empty formality 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 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 may not be a right to property but it
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 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 confirms the pre-existing right.
(I) [1970] 2 S.C.R. 95
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BAI VAJIA v. THAKORBHAI (Koshal, !.)
301
"(2) Section 14(1) and the Explanation thereto have
been couched in the widest possible terms and must be
liberally construed in favour of females so as to advance
the object of the 1956 Act and promote the socio-economic
end' sought to be achieved by this long-needed legislation.
"(3) 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(1)
materially.
The proviso
>hould not be construed in a manner so as to destroy the
effect of the main provision or the protection granted by section l 4 (l) or in a way so as to become totally inconsistent
with the main provision.
"(4) Sub-section (2) of section 14 supplies to instruments, decrees, awards, gifts; etc., which create independent and new titles in favour of 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 i~ legally permissible and section 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-section has absolutely no application and the female's limited interest would automatically
be elllarged into an absolute one by force of section 14 ( 1)
and the restrictions placed, if any, under
the
document
would have to be ignored. Thus where a property is allotted
()r transferred to a female in lieu of maintenance. or a share
at partition, the instrument is taken out of the ambit of sub-
>ection (2) and would be governed by section 14(1) despite
any restrictions placed on the powers of lhe transferee.
"(5) 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 section 14(1) clearly makes snb-section (2) inapplicable
to these categories which have been expressly e:tcepted from
the operation of snb-section (2).
" ( 6) The words "possessed by" used by the Legislature
in section 14 (1) are of the widest possible amplitude and
include the state of owning a property even though the
<>"Wiler is not in actual or jihysical possession of the same.
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SUPREME COURT REPORTS
[1979] 3 s.c.R..
Thus, where a widow gets a share in the property 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 section 14(1) she would
get absolute interest in the property. It is
equally
well
settled that the po.sscssion 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.
"(7) That the words "restricted estate" used in section
14(2) are wider than limited interest as indicated in section
14(1) and they include not only limited interest, but also
any other kind of limitation that may be placed on the transferee".
Applying these principles Fazal Ali, J., held :-
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"(i) that the properties in suit were allotted
to
the
appellant Tulasamma on July 30, 1949 under a compromise
certified by the Court;
(ii) that the appellant had taken only a life interest in·
the pr()perties and there was 'a clear restriction prohibiting
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her from alienating the properties;
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(iii) that despite these restrictions, she continued to be
in possession of the properties till 1956 when the Act of
1956 came into force; and
(iv) that the alienations which she had made in 1960
and 1961 were after she had acquired an absolute interest
in the properties."
In this view of the matter Fazal Ali, J., allowed the appeal of Tula-
...
samma's legal representatives.
Bhagwati, J., wrote a separate judgment in Tu/asamma's case and
G
A. C. Gupta, J., agreed with him.
He also allowed the appeal substantially for the same reasons as had weighed with Fazal Ali, J., and in
doing so observed :
"Now, sub-section (2) of section
14
provides
that
nothing contained in sub-section (1) shall apply to any proH
perty 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
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BAI v AJIA v. THAKORBHAI ( Koshal' J.)
303
instrument or the decree, order or award prescribe a restricted estate in snch property.
This provision is more in
the natur_e 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 subsection (1) and being in the nature of an exception to a provision which is calculated to achieve a social
purpose by
bringing about change in the social and economic position
of women in Hindu society, it must re construed strictly so
as to impinge as little as possible on the broad sweep of the
ameliorative provision. contained in
sub-section
(1). It
cannot be interpreted in a manner which would rob sub-
~ection ( 1) of its efficacy and deprive a Hindu female of
the protection sought to be given to her by sub-section ( 1).
The language of sub-section (2) is apparently wide enough
to include acquisition of property by a Hindu female under
an instrument or a decree or order or award where the ins(rument, 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 partitio'n
or in lieu of maintenance and the instrument, d•ccree, order
or award giving such property prescribes limited interest for
lier in the property.
But that would virtually emasculate
sub-section (1), for in that event, a large number of cases
where property is given to a Hindu female at a partition or
in lieu of maintenance under an instrument, order or award
would be excluded from the operation of the beneficent provision enacted in sub-section (1), since in most
of
such
cases, where property is allotted to the Hindu female prior
to 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 where property is given
to the Hindu !emale subsequent to the enactment of the Act,
it would be the easiest thing for the dominant male to provide that the Hindu female shall have only
a restricted
interest in the property and thus make a mockery of subsection ( 1). The Explanation to sub-section
( 1)
which
includes within . the scope of
that
sub-section
property
-acquired by a fomale Hindu at a partition or in lieu of maintenance would also be rendered meaningless, because there
(I) [1970] 2 S.C.R 95.
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SUPREME COURT REPORTS
(1979] 3 s.c.R.
would hardly be a few cases where the instrument, decree,
order or award giving property to a Hindu female at a partition or in lien of maintenance would not contain a provision
prescribing restricted estate in the property ........... .
. . . . . . . . . ...... . . . . . . . . . . . . . . . . . . . . . . . . . '.'
The social purpose of the law would be frustrated and the
reformist zeal underlying the statutory provision would be
chilled.
That surely could never have been the intention of
the Legislature in enacting sub-section (2) ."
Bhagwati, J ., laid down the nature of the right which .a Hindu
widow has to be maintained out of the joint family estate
in the
following terms :-
"It is settled law that a widow is entitled. to maintenance out of her
deceased husband's estate, irrespecitve
whether that estate may be in the hands of his male issue or
it may be in the hands of his coparceners.
The
joint
family estate in which her deceased husband had ll share
is liable for her maintenance and she has a right to be maintained out of the joint family properties and
though,
as
pointed out by this Court in Rani Bai v. Shti Yddul!dndan
Ram(') her claim for maintenance is not a charge upon
any joint family property until she has got her _maintenance
determined 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 bonafide purchaser for
value without notice of her claim or even with notice of
the claim uuless the transfer was made with the intention of
defeating her right". The widow can for the purpose of
her maintenance follow the joint family property "into the
hands of any one who takes it as a volunteer o~ with notice
of her having set up a claim for maintenance".
The courts
have even gone to the length of taking the *few that where
a widow is in possession of any specific property for the
purpose of her maintenance, a purchaser buying with notice
of her claim is not entitled to possession of that property
without first securing proper maintenance for her, vide
Rachawa & Ors. v. Shivayanappa(') cited with approval in
Ranibai's case (supra). It is, therefore, clear that under
(I) [1969] 3 S.C.R. 789·
(2) I. L. R. 18 Bombay 679.
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BAI VAJIA v. THAKORBHA! (Koshal, J.).
the Sastric Hindu Law a widow has a right to be maintained
out of joint family property and this right would ripen into
: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 joint family
property ill the hands of a volunteer or a purchaser taking
305
· 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 her any interest in ihe joint family property but it
is
certaiO:y jus ad rem, i.e., a right against the family property.
Therefore, when specific property is allotted to the widow
in lieu of her claim for maintenance, 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 virtue of her pre-existing right, the instrument giving the
property being merely a document effectuating such
preexisting 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, presctibe that she would
have a limited interest, she would have no more than a limited interest in the propertl\ under the Hindu Law as it stood
prior to the: enactment of the Act and hence a provision in
the instrument prescribing that she would have only a 1:mitcd interest in the property would be, to quote the words
of this Court in Nirmal Chand's case
(supra), "merely
rex:ording the true legal position" and that would not' attract
the applicability of sub-section (2) hut would be governed
by sub-section (1) of section 14.
All the three Judges were thus unanimous in accepting the appeal
on the ground that Tulasamma's right to
maintenance was a preexisting right, that it was in recognition of such a right that she obtained property under the compromise and that the compromise therefOre did not fall within the ambit of sub-section (2) of section 14 of
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the Act but would attract the provisions of sub-section (1) thereof
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coupled with the Explanation thereto.
With respect we find
ourselves irt complete agreement with the conclusions
arrived
at by
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SUPREME COURT REPORTS
[1979] 3 s.c.R.
Bhagwnti and Fazal Ali, JJ., as also the reasons which weighed with
them in coming to those conclusions.
4. Mr. S. T. Desai, learned counsel for the plaintiffs-respondents,
and Mr. U. R. Lalit who very ably assisted the Conrt at its request,
contended that for a Hindu female to be given the benefiL of wbsection ( 1) of section 14 of the Act she must first be an owner, albeit
a limited owner, of the property in question and. that Tulasamma not
being an owner at all, the Bench presided over by Bhagwati, J .,· did
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not reach a correct decision in holding that the sub-section aforesaid .
covered her case.
We find that only that part of this argument which ~ '·
is interpretative of sub-section ( 1) is correct, namely, that it is only
· ...
some kind of "limited ownership" that would get enlarged into full
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ownership and that where no ownership at all vested in the concerned
Hindu female, no question of the applicability of the sub-section would
arise.
We may here reproduce in extenso section 14 of the Act with
advantage :
"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 sub-section, "property" includes both
movable
and immovable property acquired by a female Hindu by inheritance or devise,· or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person,
whether a relative or not, before,' at or after her marriage,
or by her own skill or exertion, or by purchase or by prescription, or in any other manner what-so-ever, and also any
such property held by her as "Stridhana" immediately before
the commencement of this Act.
"(2) Nothing contained in sub-section (1) shall apply
to any property acquired by way of gift or under a will or
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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 prescribed
a restricted estate in such property."
A plain reading of sub-section (1) makes it clear that the con·
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cerned Hindu female must have limited ownership in property, which
limited ownership would get enlarged by the ·operation of that subsection. If it was intended to enlarge any sort of a right which could
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BAI VAJIA v.