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2001 DIGILAW 300 (MAD)

Thoppa Naicker v. Tmt. Chinnammal

2001-03-07

FAKKIR MOHAMED IBRAHIM KALIFULLA

body2001
Judgment : 1. The substantial question of law raised in this second appeal is with reference to the interpretation of Section 14(1) of Hindu Succession Act, 1956, in and by which, any right of a female Hindu, who possessed any property acquired either before or after the commencement of the Act, should be held to be held by her as full owner thereof and not as a limited owner. 2. In the case on hand, the respondents herein who are the wife and daughter of the deceased Andi Naicker came forward with the suit for partition as against the appellant who is none other than the younger brother of the said Andi Naicker, in respect of 11 items of suit schedule properties said to have been owned by the joint family of the appellant along with the deceased Andi Naicker. The said Andi Naicker is stated to have expired on 20.8.1952. Out of 11 items of the properties, in respect of item No.9, it is conceded by the respondents herein that the same is the exclusive property of the Appellant's daughter and therefore the conclusion of the Courts below in excluding the said Item of the property is not questioned. As regards the other properties, the contention of the respondents was that those properties were the joint family properties of the deceased Andi Naicker held along with the appellant herein, that the first respondent herein being the widow of the late Andi Naicker, was as a matter of right, entitled to half share in the various items of the suit schedule properties except item No.9. The Courts below accepted the case pleaded by the first respondent herein and passed a preliminary decree in favour of the first respondent herein. 3. The learnedcounsel for the appellant, after referring to Section 14(1) and (2) of the Hindu Succession Act, 1956, would vehemently contend that as there was no pre-existing right in favour of the first respondent herein as on the date when 1956 Act came into force, she had absolutely no right to rest her claim based on sub-section (1) of section 14 of the Act. The learned counsel relied upon Vaddeboyina Tulasamma and others v. Vaddeboyina Sesha Reddi (died) by L.rs, AIR 1977 SC 1944 as well as 1999 SCR Civil 185 equivalent to Smt. Naresh Kumar (died) by L.rs. The learned counsel relied upon Vaddeboyina Tulasamma and others v. Vaddeboyina Sesha Reddi (died) by L.rs, AIR 1977 SC 1944 as well as 1999 SCR Civil 185 equivalent to Smt. Naresh Kumar (died) by L.rs. v. Shakshi Lal (dead) by L.Rs, AIR 1999 SC 928 and Velumuri Venkata Sivaprasad (dead) by LRs.v. Kothuri Venkateswarlu (dead) by L.Rs, AIR 2000 SC 434 . 4. As against the above stated submission of the learned counsel for the appellant, Sri R.Subramanian, learned counsel for the respondents would contend that by virtue of the provision contained in Hindu Women's Rights to Property Act, 1937, the first respondent having acquired her lawful right by stepping into the shoes of her late husband in respect of his share in the joint family property, held by the appellant along with her late husband Andi Naicker, the limited right held by the first respondent got enlarged by virtue of Hindu Succession Act, 1956 and in the circumstances, the judgment of the Courts below cannot be interfered with. The learned counsel for the respondents relied upon AIR 1986 SC 789 for the proposition that there is a distinction between possessed as against the expression in possession while interpreting section 14(1) of the Hindu Succession Act, 1956.I am entirely in agreement with the learned counsel for the respondents for the proposition of law as advanced by him in his arguments. 5. Section 14(1) of the Hindu Succession Act, 1956 reads as under: S.14 property of a female Hindu to be her absolute property. (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.As far as sub-section (1) of section 14 is concerned, in my opinion, as rightly contended by the learned counsel for the respondents, one need not to go to the explanation part of sub section (1) of section 14. A reading of sub section (1) of section 14 itself would show that what all required is, a female Hindu must have possessed her property which she should have acquired either before or after the commencement of the 1956 Act. In which event, she should be held to be full owner thereof and not a limited owner. 6. A reading of sub section (1) of section 14 itself would show that what all required is, a female Hindu must have possessed her property which she should have acquired either before or after the commencement of the 1956 Act. In which event, she should be held to be full owner thereof and not a limited owner. 6. A reading of Sections 3(2) and 3(3) of Hindu Women's Right to Property Act, 1937, would show that a right is created in favour of a Hindu widow governed by any school of Hindu Law other than the Dayabhaga School at the time of the death of her husband, an interest in a Hindu joint family property, the same interest as her husband had. The said right was, however, subject to the extent of limited interest known as a Hindu woman's estate, though in all other respects, she should have the same right of claiming partition as a male owner. A conjoint reading of sub sections (2) and (3) of Section 4 of Hindu Women's Rights to Property Act, 1937 along with Section 14(1) of the Hindu Succession Act, 1956, did show that a Hindu widow, who was holding a limited right to possess a property as a Hindu widow, while keeping intact, the said right, a further right was created in her favour to claim that share of her property which her husband would have claimed in a joint family property as a coparceaner. To that extent, when the right of a Hindu widow was recognized under sub sections (2) and (3) of Section 3 of Hindu Women's Right to Properties Act, 1937, under the Hindu Succession Act, 1956 a further enlargement was made to the extent that she could exercise all her rights as a full owner of any such property. 7. To what extent, when the law is so very clear, the only other questions to be considered is what is the significance or the meaning to be given to the word "possessed" under sub section (1) of section 14 of the Hindu Succession Act, 1956. 7. To what extent, when the law is so very clear, the only other questions to be considered is what is the significance or the meaning to be given to the word "possessed" under sub section (1) of section 14 of the Hindu Succession Act, 1956. In this context, I wish to be guided by the judgment of the Honourable Supreme Court reported in Mangal Singh and others v. Smt. Battno (dead) by her L.Rs., AIR 1967 SC 1786 , Vaddeboyina Tulasamma and others v. Vaddeboyina Sesha Reddi (died) by Lrs, AIR 1977 SC 1944 asVelumuri Venkata Sivaprasad (dead) by LRs.v. Kothuri Venkateswarlu (dead) by L.Rs, AIR 2000 SC 434 . 8. In Mangal Singh and others v. Smt. Battno (dead) by her L.Rs., AIR 1967 SC 1786 , in paragraph 7, their Lordships have stated the legal position as under: it appears to us that the expression used in Section 14 of the Act was intended to cover cases of possession in law also, where lands may have described to a female Hindu and she has not actually entered into them. It would of course, cover the other cases on actual or constructive possession. On the language of Section 14(1), therefore, we hold that this provision will become applicable to any property which is owned by a female Hindu, even though she is not in actual, physical of constructive possession of that property." (Italics is mine) 9. In Vaddeboyina Tulasamma and others v. Vaddeboyina Sesha Reddi (died) by Lrs, AIR 1977 SC 1944 , the famous Tulasamma's case, AIR 1977 SC 1944 wherein the provisions of the 1956 Act came up for consideration, in particular section 14(1) of the said Act, their Lordships have explained as to how Section 14(1) is to be construed. The relevant passage rendered in the said judgment can be usefully referred to which has been stated in Para 3 of the said judgment. " The Act confers upon Hindu females full rights if inheritance 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. " The Act confers upon Hindu females full rights if inheritance 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 without 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 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 the Act. Whatever be the kind of property, movable or immovable, and whichever be the mode of acquisition, it would be covered by subsection (21) of Section 14, the object of the Legislature being the wipe out the disabilities from which a Hindu Female suffered in regard to ownership of property under the old Sastric Law, to abridge the stringment provisions against proprietary rights which were often regarded as evidence of her perpetual tutelage and to recognize her status as an independent and absolute owner of property." 10. Subsequently in Smt. Naresh Kumar (died) by Lrs. v. Shakshi Lal (died) by Lrs, AIR 1999 SC 928 in para. 9 sub paras 6, it has been reiterated to the following extent. 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 owner is not in actual or physical possession of the same. 9 sub paras 6, it has been reiterated to the following extent. 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 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 Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow however, must be under some vestige of a claim right or title, because the section does not contemplate the possession of any rank trespasser without any right or title. (Italics is mine) 11. The learned counsel for the appellant, would however, contend that a reading of sub-para (2) of para 11 of the judgment reported in Vaddeboyina Tulasamma and others v. Vaddeboyina Sesha Reddi (died) by Lrs, AIR 2000 SC 434 , would show that unless a Hindu Widow had asserted her right in the form of partition decree by invoking the provisions of the Hindu Women's Right to Property Act, 1937, it cannot be held that she had a pre-existing right so as to rely upon sub-section (1) of section 14 of the Act. I am unable to accept the said contention of the learned counsel for the appellant. On a plain reading of sub -section 1 of section 14 read along with sub- sections (2) and (3) of section 3 of Hindu Women's Rights to Property Act, 1937, it is crystal clear that a Hindu widow acquired a right in her favour in respect of the share of her late husband in a joint Hindu family property which was in existence and which was existing to a limited extent got fully enlarged by virtue of the coming into force of the 1956 Act in particular, by virtue of sections 14(1) and 15 of the said Act. By virtue of the coming into force of 1937 Act, when a right had already come into existence in favour of a Hindu widow, it cannot be said that unless a decree for partition is obtained, such a right did not get crystallised so as to maintain her claim under sub section (1) of section 14 of the Act, 1956. A reading of Paragraph 3 of the judgment of the Honourable Supreme Court in Tulasamma's case, AIR 1977 SC 1944 and Paragraph 6 (6) Smt. Naresh Kumar (died) by Lrs. v. Shakshi Lal (died) by Lrs, AIR 1999 SC 928 , make it clear that what all required was whether the widow had a right or title to claim and so long as her title to that share of the property which she was entitled to claim as a matter of right by virtue of application of 1937 Act the first respondent herein was fully entitled to claim for the same after the coming into force of 1956 Act by virtue of sub section 4 of section 14 of the Act. 12. I hold that having regard to the application of 1937 Act, the first respondent had a per-existing right as on the date when the Hindu Succession Act, 1956 came into force and as such her right to claim for partition was fully protected under the said provision of the said Act and the courts below were therefore right in granting a preliminary decree of half share of the properties in item Nos.1 to 11 except Item No.9 in her favour. The only substantial question of law raised on behalf of the appellant having been answered against the appellant, the second appeal fails and the same is dismissed. No costs. Consequently, the C.M.Ps are closed.