BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 16/05/2007 Coram: The Honourable Mr. Justice V. DHANAPALAN S.A. No.1128 of 1995 T. Sivagnanam (died) 1 S. Thayumanasamy 2 Mangayarkarasi 3 S. Lakshmi .. Appellants vs. 1 Muthu Backialakshmi alias Chellam 2 Muthu Rukmini .. Respondents Second Appeal preferred under Section 100 of Civil Procedure Code against the judgment and decree made in A.S. No.8/1991 on the file of the Sub-Judge, Periyakulam dated 01.03.1995, setting aside the judgment and decree made in O.S. No.677 of 1981 dated 26.04.1990 on the file of the District Munsif Court, Periyakulam. !For appellants ... Mr. M. Rajaraman ^For respondents ... Mr. R. Nandakumar :JUDGMENT
The plaintiff and his legal heirs are the appellants in this appeal.
2. The plaintiff filed a suit for declaration that the defendants 1 & 2
are having only life interest in the suit property and that the plaintiff and
his heirs are entitled to the suit property after the life-time of the
defendants 1 & 2.
3. The case of the plaintiff, in brief, is that he is the brother of
one T.K.T. Ramanathan Pillai and the defendants, who are sisters, are the wives
of the said Ramanathan Pillai; the marriage of the second defendant with
Ramanathan Pillai is null and void since it took place when the first defendant
was alive; the suit property belongs to Ramanathan Pillai and he executed a
registered will dated 03.12.1965 with regard to his entire properties, breathing
last on 22.08.1966; according to the said will, a provision was made for
maintenance of the defendants, giving them a limited right of enjoyment over the
suit property till their life-time, without any right of alienation or
encumbrance; it has been further stated in the Will that after their lifetime,
the suit property would go to the school which Ramanathan Pillai intended to
start; in the meanwhile, the defendants made attempts to encumber the suit
property and hence, the suit was filed by the plaintiffs for declaration.
4. In reply, the defendants filed a written statement wherein they have
not disputed the execution of the will and even according to them, the are
entitled to enjoy the suit property till their life-time after which the suit
property should go to the school intended to be started by Ramanathan Pillai.
Their main contention is that since the proposal to build a school did not
materialise due to the death of Ramanathan Pillai, the Will, which is a
contingent one, fails and becomes inoperative and consequently, their right over
the suit property till their life-time, gets enlarged into an absolute right,
and accordingly, they become absolute owners of the suit property.
5. The Trial Court, on appreciation of the oral and documentary
evidence, coming to the conclusion that the Will is not a contingent one and
holding that the defendants are having only life interest and not absolute right
over the property and further holding that Section 14(2) of the Hindu Succession
Act applies to the facts of the case, decreed the suit, as prayed for.
6. On appeal by the defendants, the lower appellate Court differed with
the finding of the Trial Court concluding that the Will is a contingent one and
since the starting of a school by Ramanathan Pillai did not become a reality,
held that the Will has become inoperative and that the life interest of the
defendants gets enlarged into an absolute one under Section 41 of the Hindu
Succession Act and allowed the appeal, thereby, dismissing the suit. As against
this finding of the lower appellate Court, the present Second Appeal has been
filed by the plaintiff and his legal heirs.
7. On 31.08.1995, this Second Appeal has been admitted on the following
substantial question of law;
“Whether the respondents are entitled to the benefit of Section 14(1) of
the Hindu Succession Act so as to enlarge their estate into absolute one?”
8. Mr. Rajaraman, learned counsel for the appellants has contended that
the lower appellate court has failed to understand the real intention of the
testator and also erred in coming to the conclusion that the second wife, i.e.
the second defendant also is a first-class heir. The main contention of the
counsel for the appellants is that the lower appellate court has erred in
ignoring the provisions of Section 14(2) of the Hindu Succession Act and it has
further gone wrong in coming to the conclusion that Section 14(1) of the Hindu
Succession Act is applicable to the facts of the case.
9. In support of his arguments, the learned counsel for the appellants
has relied on:
i. a judgment of the Supreme Court reported in (2006) 8 SCC 75 in the
case of Sadhu Singh vs. Gurdwara Sahib Narike and Others) (para 13)
“An owner of property has normally the right to deal with that property
including the right to devise or bequeath the property. He could thus dispose
it of by a testament. Section 30 of the Act, not only does not curtail or
affect this right, it actually re-affirms that right. Thus, a Hindu male could
testamentarily dispose of his property. When he does that, a succession under
the Act stands excluded and the property passes to the testamentary heirs.
Hence, when a male Hindu executes a will bequeathing the properties, the
legatees take it subject to the terms of the will unless of course, any
stipulation therein is found invalid. Therefore, there is nothing in the Act
which affects the right of a male Hindu to dispose of his property by providing
only a life estate or limited estate for his widow. The Act does not stand in
the way of his separate properties being dealt with by him as he deems fit. His
will, hence, could not be challenged as being hit by the Act.”
ii. another a judgment of the Supreme Court reported in (2006) 8 SCC 91
in the case of Sharad Subramanyan vs. Soumi Mazumdar & Others (para 19)
“Learned counsel further contended that there is no absolute rule that all
properties demised to a female Hindu were necessarily in recognition of or in
lieu of her right to maintenance. It was possible, even after the Act came into
force, to create a limited estate by reason of a gift or will. Such a situation
would fall within the ambit of sub-section (2) of Section 14 of the Act as long
as it was not in recognition of or in lieu of right to maintenance under the
Shastric Hindu law or under a statute. Learned Senior Counsel relied on Section
30 of the Act, which recognises the right of a Hindu to dispose of self-acquired
property by will. Mr. Gupta relied on the judgment of this Court in Bhura v.
Kashi Ram which was also a case of limited estate conferred on a female Hindu by
a will. This Court held that, upon a proper construction of the will, the
bequeathal in favour of the female Hindu was clearly indicative of
“the testator’s intention of only creating a life interest in her and
nothing more and the various expressions used therein are indicative of and are
reconcilable only with the hypothesis that the testator was creating an estate
in favour of …. (the female Hindu) only for her lifetime and not an absolute
estate”
iii. Yet another judgment of the Supreme Court reported in (1994) 2 SCC
511 in the case of Gumpha (Smt.) & Others vs. Jaibai (paras 9 & 12)
“The Court by interpretative process, thus, removed the anomaly arising
out of “inapt drafting” by construing the sub-section (1) widely and reading
sub-section (2) as a proviso. But, this wide meaning has to be so read as to be
in conformity with Section 30 and sub-section (2) of Section 14. Tulasamma case
was concerned with the right of maintenance granted to a widow in a decree. It
became necessary, therefore, to evolve the principle of pre-existing right.
That is, if the maintenance was given in recognition of pre-existing right,
then, such acquisition of property was taken out of sub-section (2) to promote
the objective of Section 14. But, if that concept is extended to a will
executed under Section 30, it would militate against express provision in
Section 30 and sub-section (2) of Section 14. The right of maintenance
explained in Tulasamma and reiterated in Bai Vajia case was the one recognised
under customary Hindu law to maintain a widow, daughter-in-law, a mother as a
member of the joint family property. It would not operate where a Hindu is
bequeathing his property in exercise of his right under Section 30 of the Act.
In G. Appaswami Chettiar vs. R. Sarangapani Chettiar, it was held by this Court
that where a female got a life estate under a will executed by her father, she
was not entitled to claim absolute rights under Section 14(1) and her claim was
covered by Section 14(2). In Kothi Satyanarayana vs. Gala Sithayya, a life
estate created under a Deed of Settlement was held to be an instrument
contemplated under sub-section (2) and, therefore, a female Hindu was held not
to have acquired better right than what was given to her under the instrument.
That the Legislature was aware of the unrestricted power of a Hindu to dispose
of his property in any manner, he considered proper subject to such restrictions
as were operating in different schools is clear from sub-section (2) of Section
14. It does not curtail or erode the absolute estate which comes into operation
by law but excludes from it specifically the property acquired in the manner
mentioned therein. That is if any property is acquired by a female Hindu as
provided in sub-section (2) then, it would be beyond the purview of sub-section
(1). Reason for it was that the legislature never intended to confer larger
estate on females than on males. If a Hindu could bequeath his property of
which he was capable of and could create life interest or restricted estate for
a male, it would have been incongruous to create an absolute estate in favour of
female. Sub-section (2) of Section 14 was read as proviso or exception to sub-
section (1) so that it may impinge as little as possible on the broad sweep of
the ameliorative provision contained in sub-section (1). In Tulasamma, it was
observed that ‘it cannot be construed in a manner which would sub-section of its
efficacy and deprive a Hindu female of the protection sought to be given to her
by sub-section (1)’. True, it is an exception to sub-section (1) and should be
read in such a manner as not to rob sub-section (1), ‘of that modicum of
certainty which it must always possess’. Yet, the field of operation of the two
sub-sections is independent and separate. The legislature while obliterating
the dark side of Hindu law could not have intended to encroach upon right which
existed under customary law and which it widened by adding explanation to
Section 30.”
10. Per contra, Mr. Nandakumar, learned counsel for the respondents,
while arguing on the conduct of the plaintiff and his relationship with his
brother, has relied on the deposition of P.W.1 himself and contended that P.W.1
had deposed inimically towards Ramanathan Pillai. It is his further contention
that since the plaintiff himself has admitted that the defendants had been given
right of maintenance under Ex.A.1, it can safely be presumed that Ex.A.1 deals
with the pre-existing right of maintenance.
11. On the legal aspects, the main contention of the counsel for the
respondents revolves around the applicability of Section 14(1) of the Hindu
Succession Act to the facts of the case. According to him, the Trial Court is
correct in decreeing the suit by holding that it is only Section 14(1) of the
Hindu Marriage Act which is applicable to the facts of the case and not Section
14(2).
12. To add strength to his arguments, the counsel for the respondents
has relied on a judgment of the Supreme Court reported in (2000) 6 SCC 310 in
the case of Balwant Kaur & another vs. Chanan Singh and others (paras 8 & 24)
“The aforesaid relevant recitals in the Will show that appellant 1 widowed
daughter of the testator, was a destitute and was solely dependent upon the
testator for maintenance and the testator himself was also anxious about making
provision for her maintenance even after his demise and relied upon his
brothers, the other two legatees, for looking after his destitute widowed
daughter of the testator, after his lifetime. It, therefore, becomes clear that
appellant 1 widowed daughter of the testator, was a destitute and had no one
else to fall back upon for maintaining herself but for the testator, her father.
Under these circumstances, when the testator granted 1/3rd interest in the suit
land to appellant 1 by his Will (as a residue after deducting 2/3rd interest of
his brothers), even though he conferred life interest on her to that extent, can
it be said that the said provision was in lieu of any pre-existing legal right
of maintenance from his estate as available to his destitute widowed daughter?
If any pre-existing right is culled out in her favour, at least on the date on
which the Will started operating upon the death of the testator, then the
appellant’s case would squarely be covered by Section 14(1) of the Succession
Act but if, on the other hand, it is held that she had no pre-existing right in
the testator’s estate on the date of coming into operation of the Will, then, it
could be said that she got for the first time interest in the testator’s
property under the Will and consequently Section 14(2) would get attracted, as
held by the High Court.”
In the light of this settled legal position, therefore, the relevant
recitals in the Will have to be construed in the background of admitted and
well-established facts referred to by us earlier. It is easy to visualise that
if the testator had created a life interest to the extent of 1/3rd of his
property in favour of his maidservant or female cook who might have served him
during his lifetime, then such female legatees could not have claimed benefit of
Section 14(1) and their claim would have been confined only to Section 14(2) as
they would not have any pre-existing legal right of maintenance or dependency
qua the estate of the deceased employer but appellant 1, as a destitute widowed
daughter of the testator, stands on entirely a different footing. The Will in
her favour does not create for the first time any such right as might have been
created in favour of a maidservant or a cook. In fact, the Will itself
recognises her pre-existing right in express terms and provides that even after
his death, his other legatee brothers have to look after the welfare of his
widowed daughter. Under these circumstances, Section 14(1) can legitimately be
pressed into service by the learned Senior Counsel for the appellants on the
basis of legal right flowing to her under the relevant provisions of the
Maintenance Act. Once that conclusion is reached, the result becomes obvious.
The judgment and order passed by the High Court cannot be sustained and will
have to be set aside. Instead, the decree of dismissal of the respondents’ suit
as passed by the lower appellate court will have to be confirmed, though on
entirely a different set of reasoning, as indicated hereinabove, and not on the
ground that the earlier part of the recitals in the Will supersede the latter
part of the recitals.”
13. I have given careful thought and consideration to the arguments of
Mr. M. Rajaraman, learned counsel for the appellants and Mr. R. Nandakumar,
learned counsel for the respondents and have also carefully perused the judgment
of the Courts below and the evidence on record.
14. Before proceeding to decide the substantial question of law, it
would be useful to have a look at the intention of the testator with regard to
bequeathing his properties. As argued by the counsel for the respondents, P.W.1
himself has categorically admitted in his deposition that he had enmity with the
deceased Ramanathan Pillai. He has further admitted that Ramanathan Pillai
might have lodged a complaint against him with the Devadanapatti police station.
In this regard, it would also be useful to refer to some portions of Ex.A.1,
Will dated 03.12.1965 made by Ramanathan Pillai and the same are extracted as
under:
“. . . vd; Ma[Sf;Fg; gpd;dhy; vd;Dila brhj;Jf;fisg; bghUj;J jhth Kjypa
tptfhuq;fs; Vw;glhky; ,Uf;Fk; bghUl;Lk; vd; kidtpfs; vd; Ma[Sf;Fg; gpd;
ve;jtpjkhf f\;lq;fs; Vw;glhky; epk;kjpahf fhyr;nrkk; bra;a ntZbkd;w vz;zj;Jld;
ehd; ,e;j capy; rhrdk; vGjpitj;jpUf;fpnwd;. . . . nkny fz;l gpufhuk; moapy; fz;l
brhj;Jf;fis vd; kidtpfs; mDgtpj;Jte;J ,Uth;fspy; bja;thjPdkhf ahUk; xUth;
fhye;brd;W nghdhy; capUld; ,Ug;gth; g{whr; brhj;ija[k; mile;J nkny fz;l gpufhuk;
mDgtpj;J tuntz;oaJ. nkw;go brhj;Jf;fis vd; Ma[Sf;Fg;gpd; vd; kidtpfs; ,UtUk;
nkny fz;l gpufhuk; mDgtpj;J nkw;goahh;fs; fhyk; brd;w gpd; vd; bgauhy;
eph;khzpf;f ,Uf;Fk; fy;tp epiyaj;jpw;F nrh;j;Jf; bfhz;L murhq;fk; nkw;ghh;itapy;
elj;jp tu ntz;oaJ. moapy; fz;l brh;jJf;fs; vdf;F rh;t Rjd;jpu ghj;jpag;gl;lJ.
nkw;go brhj;Jf;fisg; bghUj;J vd; rnfhjuh; T. rptQhdj;jpw;nfh mtuJ re;jjpfSf;nfh
kw;w ahUf;Fnk vt;tpj ghj;jpankh chpiknah fpilahJ vd;W vd; kdg;g{h;z
rk;kjj;jpd;nghpy; ,e;j capy; rhrdk; vGjp itj;jpUf;fpnwd;. . .’
15. From the portion of the Ex.A.1 extracted above, it is seen that the
testator, viz., Ramanathan Pillai has made it clear that after his life time,
the suit property has to devolve upon his wives till their lifetime and even in
the event of demise of one of his wives, the suit property should devolve on the
wife who is alive. He has further made his intention clear that after their
life-time, the property should go to the educational institution intended to be
started by him. Finally, the most important point to be noted from the above
extracted portion of the will made by the testator is he has expressed in strong
terms that the appellant/plaintiff or his heirs cannot have any right towards
the suit property. Thus, it is evident that Ramanathan Pillai was very
particular that the suit property should be enjoyed only by his wifes and not by
his brother.
16. Next, while deciding the substantial question of law, it would also
be useful to refer to Sections 14(1) and 14(2) of the Hindu Succession Act and
they read as under:
Section 14(1)
Property of a female Hindu to be her absolute property
Any property possessed by a female Hindu, whether acquired before or after
the commencement of this Act, shall be held by her as full owner thereof and not
as a limited owner.
Explanation: In this sub-section, “property includes both movable and
immovable property acquired by a female Hindu by inheritance or devise, or at a
partition, or in lieu of maintenance or arrears of maintenance, or by gift from
any person, whether a relative or not, before, at or after the 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.
Section 14(2)
Nothing contained in sub-section (1) 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 the gift, will or
other instrument or the decree, order or award prescribe a restricted estate in
such property”
17. In the judgment reported in (2006) 8 SCC 75 (supra) relied on by the
counsel for the appellants, it is held that when a male Hindu executes a will
bequeathing the properties, the legatees take it subject to the terms of the
will unless of course, any stipulation therein is found invalid. In the present
case, the Will states that the defendants are entitled to enjoy the suit
property till their life-time and after that, the suit property would go to the
school intended to be started by the testator. Since the proposal to start a
school did not turn into a reality, the Trial Court has held against the
respondents saying that their right is limited to their lifetime and not an
absolute one. Even according to the judgment relied on by the counsel for the
appellants (supra), the legatees can take the property subject to the terms of
the will. In the instant case, since the proposal to start a school had not
turned into a reality, naturally, the right of the defendants over the suit
property gets enlarged into an absolute one and this aspect is substantiated in
the judgments of the Supreme Court relied on by the counsel for the respondents.
18. Further, it is also worthwhile to discuss the aspect of
‘kalakshemam’ dealt with in the judgment relied on by the counsel for the
respondents reported in AIR 1990 MADRAS 379 (supra). In that judgment, the term
‘kalakshemam’ is discussed as hereunder:
“A reference to Tamil Lexicon Vol.II, Part I, published under the
authority of the University of Madras, at page 897, would show that the word
‘kalakshemam’ has several meanings and one of them is ‘means of subsistence’.
If we are to understand the word ‘kalakshemam’ in the context in which it is
used in Ex.B.2, Will, it would only mean ‘means of subsistence’ and nothing
else. The words (matter in vernacular omitted) manifestly indicate that
Ranganayakiammal wanted some properties for her maintenance after the death of
Ramasamy Iyengar. Then, Mr. R.S. Venkatachari would argue that in the document
Ranganayakiammal is given right to the income from the properties not only for
her ‘kalakshemam’ but also to pay wages to her attendants and also for doing
‘dharma’ and therefore, in any event, it cannot be said that the right in the
property was given to her only for her maintenance. But payment of wages or
salary to her attendants and doing some ‘dharma’ can justifiably be construed as
part of her maintenance and not different. Therefore, without any hesitation,
it can be safely concluded that Ranganayakiammal was given right in the property
for her maintenance during her lifetime.”
19. Even in the instant case, the testator has made it in a clear
language that the purpose of his writing the will is towards the means of
subsistence of his two wives, which in other words, can be interpreted as for
the maintenance of his wives after his lifetime.
20. In the case of V. Tulasamma vs. V. Sesha Reddy (dead) by L.Rs (in
short “the Tulasamma case”) reported in AIR 1977 SC 1944, while deciding as to
whether 14(1) or 14(2) is applicable, it was held as follows:
“Sub-section (1) of Section 14, is wide in its scope and ambit and uses
language of great amplitude. . . . 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.”
“Where, however, property is acquired by a Hindu female at a partition or
in lieu of a 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.”
21. In this context, some useful reference could be made to para 15 of
the judgment of the Supreme Court reported in (2006) 8 SCC 75 in the matter of
Sadhu Singh vs. Gurdwara Sahib Nariki and others (supra) and the same reads as
under:
“Dealing with the legal position established by the decisions in Tulasamma
and Bai Vajia Vs. Thakorbhai Chelabhai, the position regarding the application
of Section 14(2) of the Act is summed up in Mayne on Hindu Law thus:
“Sub-section (2) of Section 14 applies to instruments, decrees, awards,
gifts, etc. which create independent and new title in favour of females for the
first time and has no application where the instruments concerned merely seek to
confirm, endorse, declare or recognise pre-existing rights. The creation of a
restricted estate in favour of a female is legally permissible and Section 14(1)
will not operate in such a case. Where property is allotted or transferred to a
female in lieu of maintenance or a share at partition, the instrument is taken
out of the ambit of sub-section (2) and would be governed by Section 14(1)
despite any restrictions placed on the powers of the transferee.”
22. From a reading of the last portion of the above referred judgment of
the Supreme Court which is a recent one, in which the decision of the Supreme
Court in the Tulasamma’s case is followed, it is clear that once a property is
allotted to a female in lieu of maintenance or a share at partition, the
instrument is taken out of the ambit of sub-section (2) and would be governed by
Section 14(1) despite any restrictions placed on the powers of the transferee.
In the instant case also, since Ramanathan Pillai has bequeathed the suit
property in favour of the defendants in lieu of their maintenance, the life-time
interest which the defendants have got from Ex.A.1, the will, gets blossomed or
enlarged into an absolute right.
23. Of course, the counsel for the appellant, in support of his argument
that since the intention of the testator to start an educational institution did
not materialise and as such the will is not a contingent one and the defendants
have only life interest and not absolute right over the property, has pointed
out Section 124 of the Indian Succession Act, 1925 which reads as under:
Bequest contingent upon specified uncertain event, no time being mentioned for
its occurrence –
Where a legacy is given if a specified uncertain event shall happen and no
time is mentioned in the will for the occurrence of that event, the legacy
cannot take effect, unless such event happens before the period when the fund
bequeathed is payable or distributable.
24. But, in this context, it is worth-referring to Section 133 of the
Indian Succession Act which reads as under:
Original bequest not affected by invalidity of second:
If the ulterior bequest be not valid, the original bequest is not affected
by it.
Thus, from a reading of Section 133 of the Indian Succession Act referred to
above, it is clear that the transfer made to the transferee is not affected by
the non-occurrence of a particular event, in the case on hand, starting of
educational institution by the testator.
25. Since the recent judgment of the Supreme Court in Sadhu Singh’s case
(supra) is squarely applicable to the case on hand in which the defendants get
the suit property in lieu of maintenance or means of subsistence or kalakshemam
and more so, when the plaintiff had not maintained a cordial relationship with
his deceased brother, viz., Ramanathan Pillai, the testator, who has also very
specifically expressed in the will that the plaintiff or his heirs cannot claim
any right over the suit property, I am of the considered view that the
defendants are entitled to the benefit of Section 14(1) of the Hindu Succession
Act so as to enlarge their estate into an absolute one. As such, the substantial
question of law formulated in this appeal is answered in favour of the
respondents.
26. In view of the above, the judgment of the lower appellate court in
declaring that the respondents are entitled to enlarge their estate into
absolute one is upheld and accordingly, the suit is dismissed.
In the result, the appeal fails and is accordingly dismissed. No costs.
To
1 The Sub-Judge, Periyakulam
2 The District Munsif Court, Periyakulam