# V. TULASAMMA & ORS v. V. SESHA REDDI (DEAD) BY L. Rs

- **Citation:** [1977] 3 S.C.R. 261
- **Court:** Supreme Court of India
- **Decided:** 1977-03-17
- **Case number:** Civil Appeal No. 1360 of 1968
- **Bench:** P. N. Bhagwati, A. C. Gupta, S. Murtaza Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-tulasamma-ors-v-v-sesha-reddi-dead-by-l-rs-7210
- **Pages:** 51

## Headnote

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 commencement 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 compromise 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·
E
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
A
B
/
c
D
E
F
G
H
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 acquisition of property by: a female Hindu including acquisition in lieu of maintenance.
Where such property was possessed by her at the date of commencement of the Act or was subsequen

## Text

_Characters 0–39,707 of 161,741. This is a partial read: ask again with offset=39707 for what follows._

•
•
•
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 commencement 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 compromise 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·
E
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
A
B
/
c
D
E
F
G
H
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 acquisition of property by: a female Hindu including acquisition in lieu of maintenance.
Where such property was possessed by her at the date of commencement 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 whichever 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 recognised 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 confined 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 subsection 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 property is acquire<;! by a Hindu female under an instrument in virtue of a preexisting 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 compron1ise 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
•
•
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. Subramania, !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 compromise 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, therefore, her case would be taken out of the ambit of s. 14(2) and would fall withins. 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 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 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.
A
B
c
D
E
F
G
H
264
SUPREME COURT REPORTS
[1977] 3 S.C.R.
J1larayan 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 conferring 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 1956Act 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
---
•
'
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 categories 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 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 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 continued 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 overruled.
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. Subramania Gurukkal A.LR. 1972, Mad. 279 not approved.
H
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.
c
D
E
F
G
H
T. V. S. Narasimhachari, for the respondents.
The Judgment of P. N. Bhagwati and A.C. Gupta, JJ. was delivered 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 brother 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 unfortunate that though it became evident as far back as 1967 that subsections (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 divergence 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 litigation.
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
•
·',,I
V. TULASAMMA v. v. SESHA REDD! (Bhagwati, J.)
267
a~thorities in the country as also with the legal profession and immeA
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 adjudicatory 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 expended 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 marriage, 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 restricted 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 convert the interest which a Hindu female has in property, however, restricted the nature of that interest under the Sastric Hindu law may be,
into absolute estate".
This Court pointed out that the Hindu Succession Act, 1956 is a codifying enactment and has made far-reaching
changes in the structure of the Hindu law of inheritance, and succession.
The Act confers upon Hindu females full rights of inheritance
(!) [19621 Supp. 3 S.C.R. 418,
E
F
G
.H
A
IB
c
D
iF
268
SUPREME COURT REPORTS
[1977) 3 S.C.R.
and sweeps away the traditional limitations on her powers of disposition 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 possessed by a female Hindu, whether acquired before or after the commencement 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 prescription, 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 subsection ( 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 stringent 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, construed the word's 'possessed or also in a broad sense and in their widest
connotation. It was pointed out by this Court in Gummalepura Taggina Matada Kotturuswami v. Setra Veeravva(') that the words 'possessed 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. Elaborating 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 constructive 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 property by a female Hindu including acquisition in lieu of maintenance
and where such property was possessed by her at the date of commencement 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 contained 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 bringB
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 language 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 provision 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 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 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 frustrated 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 isolation 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.
B
c
D
E
F
G
H
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 constructional 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 therein 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 ultimately 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 acquisition of property under an instrument, decree, order or award.
This
circumstance would also seem to indicate that the legislative intendment 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 section 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 appointed 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 possession 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 properties 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 cerA
tain property was allotted to Subhrai Bai and it was specifically provided 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 challenB
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 acquirH
ed by a Hindu female under the instrument in virtue of a pre-existing
(I) A.LR. 1964 Mad.