JUDGMENT This second appeal is filed by the defendants being aggrieved by the judgment of both the Courts below i.e., by the Additional Munsiff, Bellary in O.S. No. 799 of 1989 passing a decree in favour of the plaintiffs and also in dismissing the appeal filed by the defendants in R.A. No. 11 of 1991 by the Additional Civil Judge (Senior Division), Bellary. 2. The suit was filed by the plaintiffs before the Additional Munsiff, Bellary for declaration and possession claiming that the suit schedule house property belongs to one Ramanjulu Naidu who died on 6-5-1935. Prior to his death, he had executed a registered Will dated 24-4-1935 directing that his property should devolve on the plaintiffs by virtue of the Will. As per the recitals in the Will, Smt. Chudamani, wife of the testator Ramanjulu Naidu should remain in possession and enjoyment of the suit schedule house property in lieu of her maintenance during her lifetime and she had no right of alienation and after her death, the house property shall devolve on the brothers of the testator viz., Venkataswamy Naidu and Govardhanagiri Naidu. Stating that testator has created a limited right in favour of Chudamani for her maintenance and thereafter, the property had to devolve on the plaintiffs, plaintiff have filed a suit to decree the suit in their favour by way of declaration and for possession of the suit schedule property and also simultaneously, they have sought for partition and allotment of their respective shares in the schedule property to the plaintiffs as well as to defendants 3 to 5. The suit was contested by the defendants who are claiming to be the daughters of Chudamani born to Ramanjulu Naidu and also since it was a suit for partition, the 3rd defendant has also stated that they are entitled to 1/16th share in the plaint property while denying the right of the plaintiffs. However, according to the 1st defendant, the alleged Will executed by Ramanjulu Naidu in favour of the plaintiffs is false; the plaintiffs have no right and also while denying the contention of the plaintiffs that Chudamani the mother of the defendants in pursua~ce of the alleged sale was given a right to enjoy the rents, they have rather asserted the ownership of the suit property. The Trial Court based on the pleadings having raised as many of eight issues, held that the Will was duly executed by Ramanjulu Naidu in favour of the plaintiffs on 24-3-1935 and also it has held that the mother of the 1st defendant namely Chudamani was given the right to enjoy the rent in pursuance of the alleged Will and by virtue of the Will the plaintiffs have acquired right over the property while holding that defendant failed to prove that they are the owners of the suit property and they were enjoying this property exclusively for more than several years to assert the right by way of adverse possession and also failed to prove that the Will is not a genuine one and thus, decreed the suit. 3. Aggrieved by the said judgment and decree of the Munsiff the defendants has preferred an appeal before the Civil Judge (Senior Division), Bellary raising several grounds. In a concurrent finding, the Appellate Court also while dismissing the appeal, confirmed the order of the Trial Court. Hence, this second appeal by the 1st and 2nd defendants. 4. At the time of admission, following substantial questions of law were raised by this Court for consideration on 21-8-2000: 1. Whether the properties of Ramanjulu Naidu was bequeathed to his wife Chudamani in lieu of maintenance. If so, on the coming into force of the Hindu Succession Act, 1956, whether her limited estate enlarged into a absolute estate and on the death of Chudamani in 1984, defendants 1 and 2 that is appellants herein succeed to her estate as Class I heir? 2. Whether the appellants can be permitted to raise the above question even though no such defence was taken in the Courts below, in view of the decision of the Supreme Court in the case of Dr. Mahesh Chand Sharma v Smt. Raj Kumari Sharma and Others1? 5. As a matter of fact regarding due execution of the Will by Ramanjulu Naidu in favour of the plaintiffs, both the Courts have held in a concurrent finding that the Will was duly executed. Mahesh Chand Sharma v Smt. Raj Kumari Sharma and Others1? 5. As a matter of fact regarding due execution of the Will by Ramanjulu Naidu in favour of the plaintiffs, both the Courts have held in a concurrent finding that the Will was duly executed. Of course, defendants 1 and 2 have not made any mention in the pleadings as to the way in which they succeeded to the property of Chudamani except stating that the property was enjoyed by Chudamani and she being their mother, in the year 1942 they succeeded to the estate and accordingly claim they are the owners of the property, apart from the pleadings that they are also in possession of the property by way of adverse possession. Of course, the Courts below have not accepted the case of the defendants that they are in possession of the property. However, on the basis of the interpretation of the Will, holding that the Will was duly executed by Ramanjulu Naidu creating an absolute right in the property to the plaintiffs while recognising the right of the wife of Ramanjulu Naidu only to a limited interest, without going into the legal position on the simple score as a matter of interpretation, while interpreting the contents of the Will, have stated that on the death of Chudamani her limited right extinguished as only a right of maintenance was created and accordingly, both the Courts below have confirmed the right of the plaintiffs in respect of the suit schedule house. However, throughout the case of the defendants is that they are entitled to the property as they succeeded to the estate of Chudamani being the children of Chudamani. 6. Of course, it appears nothing has been pleaded nor any ground has been raised before the Trial Court or before the Appellate Court as to the right of Chudamani as was available under Section 14 of the Hindu Succession Act, 1956. However, in this appeal, a ground has been raised based on the provision of Section 14 of the Act and also based on the ratio laid down by the Apex Court while recognising the right of Hindu woman as is rendered in the case of Vaddeboyina Tulasamma and Others v Vaddeboyina Sesha Reddi (dead) by L.Rs. However, in this appeal, a ground has been raised based on the provision of Section 14 of the Act and also based on the ratio laid down by the Apex Court while recognising the right of Hindu woman as is rendered in the case of Vaddeboyina Tulasamma and Others v Vaddeboyina Sesha Reddi (dead) by L.Rs. regarding the right of the appellants to raise even a point of law at the appeal stage though it has not been raised before the Trial Court or the Appellate Court by referring to the decision in Dr. Mahesh Chand Sharma. 7. At the outset, it is the argument of the appellant's Counsel that the property in question was the self-acquired property of Ramanjulu Naidu as is evident from the recitals in the Will and when once both the Courts below have held that the Will is duly proved and executed, then, the contents of the Will has to be interpreted in the proper perspective and in the light of the judgment of the Apex Court. Accordingly, learned Counsel in support of his argument, apart from relying upon the above stated two judgments of the Apex Court, has also relied upon the decision in 2002 SCR (Civil 296 and thus submitted that the collection of rentals from the house property identified in the Will was in lieu of maintenance. Thus, while recognising the pre-existing right of Chudamani, the wife of the testator, the testator himself has created a right for the collection of the rentals from the property and nowhere it has been authorised to the plaintiffs to collect such rentals from the house property and paid to Chudamani and rather as a matter of pre-existing right, right of Chudamani was being recognised in the Will. Although limited right had been created in the Will and the said Will was executed during 1935, subsequently during the same year the testator died and Chudamani survived till 1984. Since she survived even after commencement of the Hindu Succession Act, 1956, her limited interest as per Section 14(1) gets enlarged into an absolute right in respect of the property. The property which was identified for her right of maintenance and to collect the rent thereof got enlarged into absolute right over which the defendants 1 and 2 being the children of Chudamani are entitled to. The property which was identified for her right of maintenance and to collect the rent thereof got enlarged into absolute right over which the defendants 1 and 2 being the children of Chudamani are entitled to. Accordingly, it was submitted that since there was a pre-existing right, the same was recognised in the Will, and question of creating a right for the first time by way of Will by the testator does not arise. As such, Section 14(2) of the 1956 Act does not apply to the case on hand. 8. Per contra, Counsel for the respondent submitted that both the Courts below in a concurrent finding have decreed the suit of the plaintiffs. It is his submission that the right of Chudamani regarding her maintenance was created for the first time in the Will and also there was a rider that it was only for her lifetime and subsequently, the property reverts back to the plaintiffs by virtue of the contents of the Will as absolute right was given to the plaintiffs who are none other than the brothers of the testator. It is also submitted that in similar circumstance, the Apex Court while distinguishing Tulasamma's case has clearly held that whenever by a device or instrument such right was created even by way of a Will, then Section 14(2) of the Act applies and not Section 14(1). Accordingly, it was argued that the Apex Court in the decisions rendered in the case of Sharad Subramanyan v Soumi Mazumdar and Others Smt. Gumpha and Others v Jaibai2 and in Muninanjappa and Others v R. Manual and Another while distinguishing the earlier judgments, has clearly held that in the circumstances, Section 14(2) applies and also by virtue of Section 30, the right of the defendants, if any, is only during the lifetime of Chudamani to collect the rentals for her livelihood and question of applying Section 14(1) does not arise. 9. In Vaddeboyina Tulasamma's case, the Apex Court has held thus: "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. Sub-section (2) is more in the nature of a proviso or exception to sub-section (1), 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 bringing about change in the social and economic position of woman 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 (1), 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), 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. 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 subsection (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property". 10. Of course, in the above cited decision, appellant claimed maintenance by filing the suit while recognising her pre-existing right in the family property and there was a decree in her favour for maintenance. 11. Insofar as answering the second substantial question of law is concerned, in "Dr. 10. Of course, in the above cited decision, appellant claimed maintenance by filing the suit while recognising her pre-existing right in the family property and there was a decree in her favour for maintenance. 11. Insofar as answering the second substantial question of law is concerned, in "Dr. Mahesh Chand Sharma's case, the Apex Court is of the view that although there was no specific reference to the legal position, having regard to the law applicable to the pleadings and relying upon the decision of the Apex Court in Kedar Lal Seal v Hari Lal Seal1, the Apex Court has opined that it would not be just and proper not to give effect to the salutary provision on the ground that it has not been pleaded or raised and referring to the facts and circumstances of the case, holding that it is only a mere technicality has held that Section 14 operates on its own force once the facts requisite for attracting its applications are established. Even in respect to possession is concerned, while interpreting the factual circumstances of the case, the Apex Court was of the view that they are concerned with the right to possession and not physical possession that is to say, as long as a woman has a right to possession, mere fact that she was not in physical possession matters very little. 12. Further, the Apex Court in Dr. Mahesh Chand Sharma's case has also observed that: "Under the Will in question the testator bequeathed house property to his wife for life and after her death to the legal heirs of testator. The bequest in the Will squarely falls within the four comers of Section 119 of the Indian Succession Act, 1925 and in particular on illustration (iii) thereto. As per Section 119 the legacy to legal heirs of the testator becomes vested in such legal heir(s) on the date of death of the testator - and admittedly on that date the son was the only legal heir of the testator. It is true that the first and the foremost rule of interpreting the Will is to ascertain the intention of the testator and to give effect to it. That according to the Will, the house was to devolve upon the legal heirs of the testator only on the death of testator's wife and not at any earlier point of time. It is true that the first and the foremost rule of interpreting the Will is to ascertain the intention of the testator and to give effect to it. That according to the Will, the house was to devolve upon the legal heirs of the testator only on the death of testator's wife and not at any earlier point of time. But then the said Will' has to be understood and construed in the light of statutory rules governing the Will, viz., the provisions of the Indian Succession Act, 1925. Section 119 of the Act, which applies to the Will in question by its own force, says that where a property is bequeathed to A for life and after his death to B, the legacy to B becomes vested in interest in B on the death of the testator". 13. Further, in para 30 of the same judgment, the Supreme Court has also observed that: "We may pause here and append a note of explanation. It is true that under the 1942 Will, the bequest to Satyawathi was only for her life and the bequest to "the legal heirs of the testator" i.e., to the first defendant, vested in him on the death of the testator, as held by us and for the reasons assigned hereinbefore. But all this is subject to the statutory provisions contained in Section 14(1) of the Hindu Succession Act. This statutory provision supersedes the recitals in the Will. By virtue of Section 14(1) of the said Act, the limited estate of Satyawathi (given to her under the 1942 Will) would have ripened into absolute estate if Satyawathi had been 'possessed' of the entire Doctor's Lane House on the date of commencement of the Hindu Succession Act". 14. In the decision in Sadhu Singh v Gurdwara Sahib Narike and Others, regarding applicability of Section 14(2), respondent's Counsel has submitted that Section 14(2) operates as an exception to Section 14(1) and the interest is created in the property by virtue of the Will in favour of Chudamani and that right is not a pre-existing right. 15. 14. In the decision in Sadhu Singh v Gurdwara Sahib Narike and Others, regarding applicability of Section 14(2), respondent's Counsel has submitted that Section 14(2) operates as an exception to Section 14(1) and the interest is created in the property by virtue of the Will in favour of Chudamani and that right is not a pre-existing right. 15. In the above said decision, the Apex Court while distinguishing Section 14(1) with Section 14(2) of the Hindu Succession Act, 1956 has noted that the sub-section applies where a female Hindu possessed of a property on the date of the Act under which she had a pre-existing right even if the right be a limited estate or a right to maintenance. It is also clarified that a testator can bequeath his self-acquired property by providing in the Will a life estate to his wife and in such cases, Section 14(2) instead of Section 14(1) applies. 16. In the decision in Smt. Gumpha, the Supreme Court has held: "The purpose and legislative intention which surfaces from a combined reading of sub-sections (1) and (2) of Section 14 is that it attempts to remove the disability which was imposed by the customary Hindu Law on acquisition of rights by a female Hindu but it does not enlarge or enhance the right which she gets under a Will giving her a limited estate under Section 30 of the Act. Section 30 creates absolute power in a Hindu to dispose of his property by Will and includes the right to create limited or restricted estate in favour of a female. The section does not impose any restriction, express or implied, except that he should be capable of disposing of such property. The use of expansive language made wider by explanation makes it clear that the Legislature unmistakably intended that any property disposed of by Will by a Hindu who is capable of disposing of such property shall be subject to restrictions and conditions imposed by the testator himself in the Will". 17. In the decision in Muninanjappa, the Apex Court has held that in order to assert right as per Section 14(1) of the Hindu Succession Act by a female Hindu, her right could only mature as such if her claim could be based in lieu of her pre-existing right including the right in lieu of maintenance out of her husband's property. 18. 18. From a reading of the above cited decisions it is seen the Apex Court has recognised the right of a female Hindu by tracing the legal position prior to the commencement of the Hindu Succession Act and the effect after the commencement of the 1956 Act. As per the legal position, in case of a female heir/widow, the right to property in the joint family or in the property of her husband was only to a limited estate i.e., a right to her maintenance. Of course, it is needless to say in the context that it is a pre-existing right. By virtue of the enactment of the 1956 Act, her limited estate enlarged into an absolute right. In the case on hand, the testator while recognising the right to maintenance of his wife to collect the rentals from the house property towards her maintenance had created a right in her favour till her lifetime and thereafter, the property devolves on his brothers 'and nephews as a matter of absolute right. Although the right of the wife of the testator has been recognised, but admittedly it is towards her pre-existing right of maintenance. In that context, the question of applying the provisions of Section 14(2) of the Act does not arise. Section 14(2) would apply only if in the normal course the property has been bequeathed by the testator by creating a limited interest in favour of his wife during her lifetime and later, absolute right in favour of some other person. 19. But, here is a case where as a matter of recognising the maintenance of his wife i.e., Chudamani, the testator had identified her right as such, the property had been so identified as a limited interest which got enlarged into an absolute right on the commencement of the 1956 Act. 20. Even on facts, it is noted the testator has created a Will during the year 1935 and admittedly it is the last will and subsequently, on the very same year he died. Portion of the contents of the Will is extracted herein: "Know all men by these presents that this is my last Will and testament, I have not made any other Will or testament. Portion of the contents of the Will is extracted herein: "Know all men by these presents that this is my last Will and testament, I have not made any other Will or testament. It is my Will and desire that the properties belonging to me, moveable and immovable should in case, I do not survive from the present illness with which I am now suffering, go to my two daughters exclusively... 1. Prema Bai, aged 2 years; 2. Jana Bai, aged 1 year. My wife M. Chudamani, shall not be entitled to my properties moveable and immovable. She will be entitled to receive a sum of Rs. 10/- (Rupees ten only) out of the income of my properties, or such other net amount realised by renting my house in Cowl Bazaar, Bellary towards maintenance and residence. I hereby appoint 1. Mr. Berala Narasaiah Naidu; 2. Mr. Ramamurthy Naidu; 3. My mother Kamalakshamma to be my executors to carry out the directions contained in this my last Will and testament... As for the family house which I purchased from Mr. Berala Narasaiah Naidu shall be the property of my two brothers i.e., 1. M. Venkataswamy Naidu; 2. M. Govardhanagiri Naidu. They shall be absolutely entitled to this house and none else. But, neither of them jointly or severally shall be entitled to alienate the house during the lifetime of my wife M. Chudamani, as I have directed that she shall be maintained out of the rent thereof. 21. By reading the above testament, it is clear that the house property was exclusively meant for the use of Chudamani during her lifetime and the rental of Rs. 10/- derived from the same in lieu of maintenance and also she was entitled to maintain herself out of the income of the house during her lifetime and thereafter, the property to devolve on the brothers of the testator. However, Chudamani the wife of the testator survived him and lived upto 1984. Such being the factual position, the right of Chudamani or her children would be to get absolute right in respect of the suit schedule property which was identified in favour of Chudamani in lieu of her maintenance. However, Chudamani the wife of the testator survived him and lived upto 1984. Such being the factual position, the right of Chudamani or her children would be to get absolute right in respect of the suit schedule property which was identified in favour of Chudamani in lieu of her maintenance. In the circumstances, even though both the Courts below have on facts, decreed the suit of the plaintiffs, since the defendants/appellants have come up in second appeal raising a question of law as to entitlement of their right in the suit property and in view of the ratio laid down by the Apex Court in Dr. Mahesh Chand Sharma's case, even at this stage their right has to be recognised. By virtue of the same, the finding of both the Courts below has to be reversed and the suit of the plaintiffs have to be dismissed while allowing the appeal. 22. Accordingly, the appeal is allowed. Judgment and decree passed by both the Courts below are set aside. Parties to bear their own costs.