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1988 DIGILAW 91 (KER)

ROHINI v. JANAKI

1988-02-15

PAREED PILLAY

body1988
Judgment :- 1. Plaintiffs are the appellants. They filed the suit for permanent injunction or in the alternative for recovery of possession of the property on the strength of their title. The trial Court dismissed the suit and the appeal was also not successful. 2. The plaint schedule property along with other properties belonged to the tavazhi of defendants, Kumaran the husband of the 1st plaintiff and father of plaintiffs 2 to 4 and others. Kumaran was the karanavan of the tavazhi. There was a partition on 19-3-1969 evidenced by Ext A-1 and the plaint schedule property which is item 2 of Schedule.2 of Ext. A-1 was allotted to Rohini, sister of Kumaran. It is the case of the plaintiff's that the property was allotted to Rohini till her death, that she hadno right of alienation and that the absolute right vested in her brother Kumaran. Kumaran predeceased Rohini who died in 1978. Plaintiffs claim recovery of the property on the strength of title in case defendants are found to be in possession. 3. Defendants contended that Rohini had acquired absolute right in the property under Ext. A-1, that she had executed a will in favour of the Ist defendant and that the plaintiffs have no manner of right in the property. 4. The trial Court on construing the various clauses in Ext. Al held that Rohini obtained full rights in the property and the clauses which restrict the power of alienation are repugnant to the earlier clauses conferring full rights. The Additional District Judge held that Clause. 7, 9 and H in Ext. Al cannot be said to be defeasance clauses as they do not refer to the happening of any contingency. He also held that a reading of Ext. Al would clearly disclose that the intention of the parties was to confer absolute estate on Rohini and agreed with the finding of the trial Court that absolute right was created in her favour as per Ext. Al partition deed and hence plaintiffs did not acquire any right in the property. 5. Counsel for the defendants submitted that even if it is assumed that Rohini had only limited interest in the property, plaintiffs cannot succeed in the suit as that right is absolute in view of S.14(1) of the Hindu Succession Act. Counsel for the plaintiffs contended that is the terms of Ext. 5. Counsel for the defendants submitted that even if it is assumed that Rohini had only limited interest in the property, plaintiffs cannot succeed in the suit as that right is absolute in view of S.14(1) of the Hindu Succession Act. Counsel for the plaintiffs contended that is the terms of Ext. Al prescribe only a restricted right to Rohini, S.14(1) of the Act has no application, but really S.14(2) applies. 6. S.14(1) provides 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. Explanation to S.14(1) defines "property." Explanation reads: "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 whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act." S. 14(2) provides that nothing contained in sub-section (I) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. 7. The Hindu Succession Act confers upon Hindu females full rights of inheritance and it takes away the traditional limitations on her powers of disposition which were regarded under the Hindu Law as inherent in her estate. A reading of S.14(1) leaves no ambiguity in the mind. S.14(2) makes the position clear that a restricted estate can be there despite S.14 (1) where interest in property is created in favour of a female Hindu by operation of transfer inter vivos, by testamentary disposition, by decree or order or award. S.14(2) is also intended to show that any such restricted estate created prior to the Act will not blossom into full fledged ownership by the operation of S.14(1), if the gift, will, other instrument, decree, order or award had prescribed a restricted estate. S.14(2) is also intended to show that any such restricted estate created prior to the Act will not blossom into full fledged ownership by the operation of S.14(1), if the gift, will, other instrument, decree, order or award had prescribed a restricted estate. Sub-sections 1 and 2 really create a baffling situation. The Supreme Court in, Tulasamma v. Sesha Reddi (AIR. 1977 SC. 1944) had occasion to consider the amplitude of the sub-section and held thus: "The Explanation to sub-section (1) 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 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 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). It is an elementary rule of construction that no provision of a statute should be construed in isolation but it should be construed with 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 by a female Hindu for the first 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." The Supreme Court held that S.14(1) must receive a most expansive interpretation. By enacting S.14(1) the legislature definitely intended that the limited ownership of a Hindu female should no longer continue and it should be changed into full ownership. By enacting S.14(1) the legislature definitely intended that the limited ownership of a Hindu female should no longer continue and it should be changed into full ownership. The object of the Section is to extinguish the estate known as "limited estate" or "widow's estate" in Hindu law and to make a Hindu woman from a limited owner to a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs. S.14(1) has very wide amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance. Any property acquired by a female Hindu whether before or after the Act by inheritance, partition or in lieu of maintenance or arrears of maintenance or gift will come under S.14(1) of the Act. After commencement of Hindu Succession Act the legal position is that the estate taken by a female Hindu coming within the purview of S.14(1) is an absolute one and is not defeasible and its ambit cannot be diminished or extinguished by any text or rule of Hindu law or by any presumption or any legal fiction. S.I4(I) makes the explicit declaration of the law that a female holds all property in her possession whether acquired by her before or after the commencement of the Act as absolute owner and not as a limited owner. The rules applies to all property movable and immovable howsoever manner it was acquired by her but subject to sub-section (2). The object of S.14(2) is to make the position clear that a restricted estate can come into existence even after the commencement of the Act in case of interest in property is given to a female Hindu, by operation of transactions inter vivos, by testamentary disposition, by decree or order of a civil court, or under an award. It is intended to make it clear that any such restricted estate created prior to the commencement of the Act will not be enlarged into full ownership by operation of sub-section (1) if the gift, will, other instrument, decree, order or award had prescribed a restricted estate. Sub-section (2) can only be read as a proviso or exception to sub-section (1). In Badri Pershad v. Smt. Kanso Devi (1970-2-S.C.R. 95) the Supreme Court held so. Sub-section (2) can only be read as a proviso or exception to sub-section (1). In Badri Pershad v. Smt. Kanso Devi (1970-2-S.C.R. 95) the Supreme Court held so. Its operation must be confined to case where property is acquired for the first time as a grant without any pre-existing right under a gift, will, instrument, decree, order or award, the terms of which prescribed a restricted estate in the property. In Tulasamma v. Sesha Reddi the Supreme Court held as follows: "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." In view of the law laid down by the Supreme Court, there cannot be any doubt that where a property is allotted to a female Hindu in a partition it is in virtue of a pre-existing right and such acquisition does not fall under S.14(2) even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property. Whether a particular case is covered by the first or the second sub-section would depend on the facts of each case. If a female Hindu hadpre-existing interest in the property, the mere super imposition of a partition deed or decree or award will not take the matter out of the purview of sub-section (1) merely on the ground that her interest is delineated as a limited one. In other words, if a Hindu female had any pre-existing right, sub-section (2) cannot have any effect of taking the property out of the coverage of sub-section (I). 8. As Ext. A-1 shows that Rohini had pre-existing right in the property being a member of the family her limited right blossomed into full right as provided under S.14 (1) of the Hindu Succession Act. That being the position plaintiffs cannot have any claim to the property. There is no merit in the Second Appeal and hence the same is dismissed. There is no order as to costs. Dismissed.