PETITIONER:
BAI VAJIA (DEAD) BY L. RS.
Vs.
RESPONDENT:
THAKORBHAI CHELABHAI AND ORS.
DATE OF JUDGMENT20/02/1979
BENCH:
KOSHAL, A.D.
BENCH:
KOSHAL, A.D.
KAILASAM, P.S.
DESAI, D.A.
CITATION:
1979 AIR 993 1979 SCR (3) 291
1979 SCC (3) 300
CITATOR INFO :
E 1987 SC2251 (8,8A)
D 1991 SC1581 (8,9,10)
ACT:
Hindu Succession Act, 1956, Section 14(1) and (2),
Scope of-Interpretaion of Statute-Legislature does not
employ meaningless language.
HEADNOTE:
As per the decree in a partition suit dated August, 18,
1909 Motabhai and two sons of Mohanbhai being two
predecessors in interest of the plaintiffs respondents were
burdened with the responsibility of paying an yearly
maintenance allowance of Rs. 42/- to Bai Vajia appellant on
Magsher Sud 2 of every year. The decree further provided
that in the event of default in payment of such allowance
continuing for a period of a month after the due date, Bai
Vajia would be entitled to take possession of the land
allotted to them under the decree viz. Survey Nos. 31, 403,
591, 611, 288 and 659/3 in lieu of the maintenance awarded
to her and would enjoy the income thereof without however
being competent to sell, mortgage, bequeath, gift or
otherwise transfer the same. The decree declared that any
alienation made by Bai Vajia in contravention of the
direction given by the decree in that behalf would be void.
By clause 8 of the decree Motabhai and sons of Mohanbhai
were also deprived of the right of alienation of the land
during the lifetime of Bai Vajia. Default having been made
in the payment of maintenance to her according to the terms
of the decree, the appellant, took out execution and
obtained possession of the lands in question, which she
continued to enjoy till October 21, 1963 when she made a
sale of Survey No. 31 in favour of one D. P. Desai. The sale
was challenged by the plaintiffs in Civil Suit No. 110/66
which was decreed by the trial Court. The District Court in
first appeal confirmed it and the High Court in second
appeal upheld the decree of Bai Vajia.
Allowing the appeal of the Legal Representative by
special leave. the Court.
^
HELD: 1. A combined reading of sub-sections (1) and (2)
of Section 14 of the Hindu Succession Act and the
Explanation following sub section (1) makes it clear, that
sub-section (2) does not operate to take property acquired
by a Hindu female in lieu of maintenance or arrears of
maintenance (which is property specifically included in the
enumeration contained in this Explanation) out of the
purview of sub-section (1). [311 D-E]
2. For the applicability of sub-section (1) of Section
14 two conditions must coexist namely.
(1) the concerned female Hindu must be possessed of
property; and
292
(2) such property must be possessed by her as a
"limited owner".
If these two conditions are fulfilled, the sub section
gives her the right to hold the property as a full owner
irrespective of the fact whether she acquired it before or
after the commencement of the Act. [309 D-F]
The Explanation declares that the property mentioned in
sub section (1) includes both movable and immovable property
and then proceeds to enumerate the modes of acquisition of
various kinds of property which the sub-section would
embrace. Two such modes are "in lieu of maintenance or
arrears of maintenance", and "any such property held by her
as Stridhana" immediately before the commencement of the
Act. It, therefore, follows that the Legislature in its
wisdom took pains to specify all kinds of "Stridhana" in the
Explanation and declared that the same would form "property"
within the meaning of that word as used in sub-section (i).
This was done "to achieve a social purpose by bringing about
change in the social and economic position of women in Hindu
Society". It was a step in the direction of practical
recognition of equality of the sexes and was meant to
elevate women from a subservient position in the economic
field to a pedestal where they could exercise full powers of
enjoyment and disposal of the property held by them as
owners, untrammelled by artificial limitations placed on
their right of ownership by a society in which the will of
the dominant male prevailed to bring about a subjugation of
the opposite sex. It was also a step calculated to ensure
uniformity in the law relating to the nature of ownership of
'Stridhana'. This dual purpose underlying the Explanation
must be borne in mind and given effect to when the section
is subjected to analysis and interpretation, and sub-section
(2) is not to be given a meaning which would defeat that
purpose and negative the legislative intent, if the language
used so warrants. [309 F, 311 A-D]
3. It is true that it is only some kind of "limited
ownership" that would get enlarged into full ownership and
that where no ownership at all vested in the concerned Hindu
Female, no question of the applicability of subsection (1)
of section 14 of the Act, would arise. [306 B-C]
4. A plain reading of sub-section (1) of section 14 of
the Act makes it clear that the concerned Hindu female must
have limited ownership in property, which limited ownership
would get enlarged by the operation of that sub section. If
it was intended to enlarge any sort of a right which could
in no sense be described as ownership, the expression "and
not as a limited owners", would not have been used at all
and becomes redundant, which is against the well known
principle of interpretation of statutes that the Legislature
does not employ meaningless language. [306 H, 307 A]
Eramma v. Veerappanna and Ors., [1966] 2 SCR 626;
Mangal Singh and Ors. v. Srimati Rattno & Anr., [1967] 3
S.C.R. 454; reiterated.
5. Limited ownership in the concerned Hindu female is
thus a sine qua non for the applicability of sub section (1)
of section 14 of the Act. In a case where this condition is
fulfilled the Hindu female represents the estate completely
and the reversioners of her husband have only a spes
succession is i.e. a mere chance of
293
succession which is not a vested interest and a transfer of
which is a nullity. The widow is competent to protect the
property from all kinds of trespass and to sue and be sued
for all purposes in relation thereto so long as she is
alive. Ownership in the fullest sense is a sum-total of all
the rights which may possibly flow from title to property,
while limited ownership in its very nature must be a bundle
of rights constituting in their totality not full ownership
but something less. [308 E-H]
When a widow holds the property for her enjoyment as
long as she lives, nobody is entitled to deprive her of it
or to deal with the property in any manner to her detriment.
The property is for the time being beneficially vested in
her and she has the occupation, control and usufruct of it
to the exclusion of all others. Such a relationship to
property falls squarely within the meaning of the expression
"limited owner" as used in sub section (1) of Section 14 of
the Act. [308 H, 309A]
6. In the instant case: Bai Vajia became a full owner
of the land in dispute under the provisions of sub-section
(1) of section 14 of the Act and that sub-section (2)
thereof has no application to her case, the land having been
given to her as a limited owner and in recognition of her
pre-existing right against property. So long as she lived,
she was to have full enjoyment of and complete control over
the land, barring any right to alienate it. Such a right was
also taken away from Motabhai and two sons of Mohanbhai. The
arrangement meant that whatever rights existed in relation
to the land during the life-time of Bai Vajia were
exercisable by her alone and by nobody else. Not even the
said three persons could deal with the land in any manner
whatsoever, and if they did, Bai Vajia had the right to have
their acts declared null and void during her life-time.
After the land was made over to her she became its owner for
life although with a limited right and therefore only as a
limited owner. Under the decree the land vested in Motabhai
and sons of Mohanbhai only so long as they were not
dispossessed of it at the instance of Bai Vajia in
accordance with the terms stated therein. As soon as Bai
Vajia took possession of the land, no rights of any kind
whatsoever in relation thereto remained with them and thus
they ceased to be the owners for the span of Bai Vajia's
life. [311 G-H, 312 A-D]
V. Tulasamma and Ors. v. Sesha Reddy, [1977] 3 S.C.R.
261; discussed in extenso and followed.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2434 of
1977.
Appeal by Special Leave from the Judgment and Order
dated 4/5th November, 1976 of the Gujrat High Court in S.A.
No. 685/69.
U. R. Lalit (A.C.),1. N. Shroff and H. S. Parihar for
the Appellant.
S. T. Desai, Vimal Dave and Miss K. Mehta for the
Respondent.
The Judgment of the Court was delivered by,
KOSHAL, J.-The facts giving rise to this appeal by
special leave against a decree dated November 5, 1976 of the
High Court of Gujarat
294
may be better appreciated with reference to the
following pedigreetable:
NARANJI
————————————————————
| | Dahyabhai Haribhai | | | | Ranchhodji | | ------------------- | | Bhimbhai Mohanbhai (died childless in | 1913) | ------------------------------ | | Parvatiben=Dayalji Dahyabhai (Plaintiff 8 (Plaintiff 7 |
——————————————————-
| | | | Bhikhubhai Thakorbhai Nirmalben Padmaben
(Plaintiff 5) (Plaintiff 6) (Plaintiff 7) (Plaintiff 10)
————————————————————
NARANJI (contd…)
| |
Gulabhai Vallabhhai
| |
Motabhai ——————
| | | Nichhabhai= Surbhai | Amba Bai Bai Vijia | (Defendant 1) |
————————————————-
| | | |
Ghelabhai Lallubhai Chhotubhai Manibhai
| (Plaintiff 3) (Plaintiff 4)
----------------------------
| |
Thakorbhai Ramanbhai
(Plaintiff 1) (Plaintiff 2)
2. In the year 1908 Ranchhodji son of Dahyabhai
instituted Civil Suit No. 403 of 1908 against Bhimbhai son
of Haribhai, Dayalji and Dahyabhai sons of Mohanbhai,
Motabhai son of Gulabbhai, Bai Amba widow of Nichhabhai and
Bai Vajia widow of Surbhai, for a partition of the joint
Hindu family properties belonging to the parties. The suit
resulted in a decree dated August 18, 1909 which provided,
inter alia, that Dayalji and Dahyabhai sons of Mohanbhai,
and Motabhai son of Gulabbhai would be full owners of Survey
Nos. 31 and 403 and also owners of a half share in Survey
Nos. 591, 611, 288
295
and 659/3. These persons were burdened by the decree with
the responsibility to pay an yearly maintenance allowance of
Rs. 42/- to Bai Vajia on Magsher Sud 2 of every year and the
decree further provided that in the event of default in
payment of such allowance continuing for a period of a month
after the due date, Bai Vajia would be entitled to take
possession of the land above-mentioned in lieu of the
maintenance awarded to her and would enjoy the income
thereof without however being competent to sell, mortgage,
bequeath, gift or otherwise transfer the same. The decree
declared that any alienation made by Bai Vajia in
contravention of the direction given by the decree in that
behalf would be void. By clause 8 of the decree sons of
Mohanbhai as well as Motabhai were also deprived of the
right of alienation of the land during the lifetime of Bai
Vajia.
Default having been made in the payment of maintenance
to Bai Vajia according to the terms of the decree, she took
out execution and obtained possession of the land above
detailed. Thereafter Dayalji and Dahyabhai sons of Mohanbhai
deposited in court the arrears of maintenance and filed an
application with a prayer that the land of which possession
had been given to Bai Vajia in execution of the decree be
restored to them. That application was dismissed on the 8th
March 1912 and more than 2 1/2 years later, i.e., on 27th
October 1914, Dahyabhai son of Mohanbhai instituted Civil
Suit No. 576 of 1914 in the court of the Additional Sub-
Judge, Valsal, for a declaration that the dismissal of his
application was null and void and for recovery of possession
of the land which Bai Vajia had taken in execution of the
decree. The suit was decreed by the trial court but was
dismissed in first appeal on the 13th March 1918.
Bai Vajia continued to enjoy the land till the 21st
October 1963 when she made a sale of Survey No. 31 in favour
of one Dhirubhai Paragji Desai. The sale was challenged in
Civil Suit No. 110 of 1966 by 10 persons being the heirs of
Mohanbhai and Motabhai as shown in the pedigree table above,
the defendants being Bai Vajia and the said Dhirubhai
Paragji Desai. It was claimed by the plaintiffs that Bai
Vajia had no right to alienate in any manner the land
obtained by her in execution as per the terms of the decree,
that sub-section (1) of section 14 of the Hindu Succession
Act (hereinafter referred to as the Act) had no application
to her case which was covered by sub-section (2) of that
section and that the sale by her in favour of defendant No.
2 was null and void. Bai Vajia contested the suit and
contended that the sale was good in view of the provisions
of subsection (1) abovementioned which enlarged her limited
ownership
296
into full and absolute ownership and that sub-section (2)
aforesaid did not cover her case. The suit was decreed by
the trial court and Bai Vajia remained unsuccessful in the
appeal which she instituted in the court of the District
Judge, Bulsar. A second appeal was filed by her before the
High Court of Gujarat and during the pendency thereof she
expired when one Dhirubhai Dayalji Desai was substituted for
her as her sole heir and legal representative. The appeal
came up for hearing before a learned Single Judge of the
High Court who by its judgment dated 5th November, 1976
dismissed it holding that the decree passed in Civil Suit
No. 403 of 1908 did not recognise any “pre-existing” right
of Bai Vajia in the property in dispute. In coming to this
conclusion, the learned Judge followed Naraini Devi v. Smt.
Ramo Devi and others.(1)
The legal representative of Bai Vajia is the sole
appellant in the appeal before us, the respondents thereto
being nine of the plaintiffs and six legal representatives
of plaintiff No. 5 as also the purchaser from Bai Vajia who
is arraigned as respondent No. 11.
2. At the outset it was pointed out by Mr. I. N.
Shroff, learned counsel for the appellant, that Naraini
Devi’s case (supra) has since been over-ruled by the
decision of this Court in V. Tulasamma & others v. V. Sesha
Reddi(2) and we find that this is so. In the case last
mentioned, the facts were these. The husband of Tulasamma
died in the year 1931 in a state of jointness with his step-
brother V. Sesha Reddi. A decree for maintenance was passed
in favour of Tulasamma against V. Sesha Reddi on June 29,
1946. On the 30th July 1949, a compromise between the
contending parties was certified by the Court executing that
decree. Under the compromise, Tulasamma was allotted certain
properties in lieu of maintenance, her right being limited
to enjoyment thereof coupled with the specific condition
that she would not have any right of alienation whatsoever.
Tulasamma took possession of those properties and continued
to enjoy them till the early sixties. On 12th of April 1960
she leased out some of the properties to two persons and on
the 26th of May 1961 made a sale of some others to another
person. V. Sesha Reddi filed a suit on July 31, 1961 for a
declaration that the alienations made by Tulasamma were not
binding on him and could remain valid only so long as she
was alive. The basis of the action was that Tulasamma
acquired a restricted estate under the terms of the
compromise and that her interest could not be enlarged under
sub-section (1) of section 14 of the Act in view of sub-
section (2) of that section. The
297
suit was decreed by the trial court whose decision however
was reversed in appeal by the District Judge, with a finding
that the allotment of properties to Tulasamma by the terms
of the compromise had been made in recognition of a “pre-
existing” right-a finding which was reversed by the High
Court, who restored the decree passed by the trial court.
The matter came up to this Court in appeal by special leave
and Fazal Ali, J., who wrote an exhaustive judgment thus
formulated the two points falling for determination:
(1) Whether the instrument of compromise under
which the properties were given to the
appellant Tulasamma before the Hindu
Succession Act in lieu of maintenance falls
within section 14(1) or is covered by section
14(2) of that Act.
(2) Whether a Hindu widow has a right to property
in lieu of her maintenance, and if such a
right is conferred on her subsequently by way
of maintenance it would amount to mere
recognition of a pre-existing right or a
conferment of new title so as to fall
squarely within section 14(2) of the Hindu
Succession Act.
Fazal Ali, J., was of the opinion that the resolution of the
dispute made it necessary that the real legal nature of the
incidents of a Hindu widow’s right to maintenance be
considered. He referred to various works by celebrated
authors on Hindu Law and in doing so cited passages from
‘Digest of Hindu Law’ by Colebrooke, ‘Hindu Law’ by G. S.
Sastri, ‘Hindu Law and Usage’ by Mayne and ‘Principles of
Hindu Law’ by Mulla and came to the conclusion that the
widow’s right to maintenance, though not an indefeasible
right to property, is undoubtedly a “pre-existing” right. A
survey of various judicial pronouncements was then
undertaken by Fazal Ali, J., and as a consideration thereof
he arrived at the following propositions :-
“(1) A Hindu woman’s right to maintenance is a
personal obligation so far as the husband is
concerned, and it is his duty to maintain her
even if he has no property. If the husband
has property then the right of the widow to
maintenance becomes an equitable charge on
his property and any person who succeeds to
the property carries with it the legal
obligation to maintain the widow.
298
(2) Though the widow’s right to maintenance is
not a right to property but it is undoubtedly
a pre-existing right in property, i.e., it is
a jus ad rem, not jus in rem, and it can be
enforced by the widow who can get a charge
created for her maintenance on the property
either by an agreement or by obtaining a
decree from the civil court.
(3) The right of maintenance is a matter of
moment and is of such importance that even if
the joint property is sold and the purchaser
has notice of the widow’s right to
maintenance, the purchaser is legally bound
to provide for her maintenance.
(4) The right to maintenance is undoubtedly a
pre-existing right which existed in the Hindu
Law long before the passing of the Act of
1937(1) or the Act of 1946,(2) and is
therefore, a pre-existing right.
(5) The right to maintenance flows from the
social and temporal relationship between the
husband and the wife by virtue of which the
wife becomes a sort of co-owner in the
property of her husband, though her co-
ownership is of a subordinate nature.
(6) 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 in a
position to make arrangements for her
maintenance.”
Fazal Ali, J., then embarked on a consideration of the
scope and meaning of section 14 of the Act in the light of
various pronouncements made by this Court as also of the
decisions rendered by various High Courts in relation to the
points in dispute. During the course of the discussion he
made the following pertinent observations:-
“It is true that a widow’s claim for maintenance
does not ripen into a full-fledged right to property,
but nevertheless it is undoubtedly right which in
certain cases can amount to a right to property where
it is charged. It cannot be said that where a property
is given to a widow in lieu of
299
maintenance, it is given to her for the first time and
not in lieu of a pre-existing right. The claim to
maintenance, as also the right to claim property in
order to maintain herself, is an inherent right
conferred by the Hindu Law and, therefore, any property
given to her in lieu of maintenance is merely in
recognition of the claim or right which the widow
possessed from before. It cannot be said that such a
right has been conferred on her for the first time by
virtue of the document concerned and before the
existence of the document the widow had no vestige of a
claim or right at all. Once it is established that the
instrument merely recognised the pre-existing right,
the widow would acquire absolute interest. Secondly,
the Explanation to section 14(1) merely mentions the
various modes by which a widow can acquire a property
and the property given in lieu of maintenance is one of
the modes mentioned in the Explanation. Subsection (2)
is merely a proviso to section 14(1) and it cannot be
interpreted in such a manner as to destroy the very
concept of the right conferred on a Hindu woman under
section 14(1). Sub-section (2) is limited only to those
cases where by virtue of a certain grant or disposition
a right is conferred on the widow for the first time
and the said right is restricted by certain conditions.
In other words, even if by a grant or disposition a
property is conferred on a Hindu male under certain
conditions, the same are binding on the male. The
effect of sub-section (2) is merely to equate male and
female in respect of grant conferring a restricted
estate.”
Finally, Fazal Ali, J., made a reference to Naraini
Devi’s case (supra) to which he himself was a party (apart
from Sarkaria, J., who delivered the judgment of the Court)
and in relation thereto made the following observations:
“This case is no doubt directly in point and this
Court by holding that where under an award an interest
is created in favour of a widow that she should be
entitled to rent out the property for her life-time, it
was held by this Court that this amounted to a
restricted estate under section 14(2) of the 1956 Act.
Unfortunately the various aspects, namely, the nature
and extent of the Hindu women’s right to maintenance,
the limited scope of sub-section (2) which
300
is a proviso to sub-section (1) of section 14 and the
effect of the Explanation, etc., to which we have
adverted in this Judgment, were neither brought to our
notice nor were argued before us in that case.
Secondly, the ground on which this Court distinguished
the earlier decision of this Court in Badri Parshad v.
Smt. Kanso Devi(1) was that in the aforesaid decision
the Hindu widow had a share or interest in the house of
her husband under the Hindu Law as it was applicable
then, and, therefore, such a share amounted to a pre-
existing right. The attention of this Court however,
was not drawn to the language of the Explanation to
section 14(1) where a property given to a widow at a
partition or in lieu of maintenance had been placed in
the same category, and therefore, the reason given by
this Court does not appear to be sound. For the reasons
that we have already given, after taking an overall
view of the situation, we are satisfied that the
Division Bench decision of this Court in Naraini Devi’s
case (supra) was not correctly decided and is therefore
overruled.”
Summarising the conclusions of law which Fazal Ali, J.,
reached after an exhaustive consideration of the texts and
authorities mentioned by him, he enumerated them thus:
“(1) The Hindu female’s right to maintenance is
not an empty formality or an illusory claim being
conceded as a matter of grace and generosity, but is a
tangible right against property which flows from the
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 may not be a right to property but it 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 doubtless a pre-
existing right so that any transfer declaring or
recognising such a right does not confer any new title
but merely endorses or confirms the pre-existing right.
301
“(2) Section 14(1) and the Explanation thereto
have been couched in the widest possible terms and must
be liberally construed in favour of 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) Sub-section (2) of section 14 is in the
nature of a proviso and has a field of its own without
interfering with the operation of section 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 section 14(1) or
in a way so as to become totally inconsistent with the
main provision.
“(4) Sub-section (2) of section 14 supplies to
instruments, decrees, awards, gifts, etc., which create
independent and new titles in favour of females for the
first time and has no application where the instrument
concerned merely seeks to confirm, endorse, declare or
recognise pre-existing rights. In such cases a
restricted estate in favour of a female is legally
permissible and section 14(1) will not operate in this
sphere. Where, however, an instrument merely declares
or recognises a pre-existing right, such as 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 section 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
instrument is taken out of the ambit of subsection (2)
and would be governed by section 14(1) despite any
restrictions placed on the powers of the transferee.
“(5) 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 section 14(1) clearly makes sub-
section (2) inapplicable to these categories which have
been expressly excepted from the operation of sub-
section (2).
“(6) 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.
302
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.
“(7) That the words “restricted estate” used in
section 14(2) are wider than limited interest as
indicated in section 14(1) and they include not only
limited interest, but also any other kind of limitation
that may be placed on the transferee”.
Applying these principles Fazal Ali J., held:-
“(i) that the properties in suit were allotted to
the appellant Tulasamma on July 30, 1949 under a
compromise certified by the Court;
(ii) that the appellant had taken only a life
interest in the properties and there was a clear
restriction prohibiting her from alienating the
properties;
(iii) that despite these restrictions, she
continued to be in possession of the properties till
1956 when the Act of 1956 came into force; and
(iv) that the alienations which she had made in
1960 and 1961 were after she had acquired an absolute
interest in the properties.”
In this view of the matter Fazal Ali, J., allowed the appeal
of Tulasamma’s legal representatives.
Bhagwati, J., wrote a separate judgment in Tulasamma’s
case and A. C. Gupta, J., agreed with him. He also allowed
the appeal substantially for the same reasons as had weighed
with Fazal Ali, J., and in doing so observed:
“Now, sub-section (2) of section 14 provides that
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
303
instrument or the decree, order or award prescribe a
restricted 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.(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
women 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). The language of sub-section (2)
is apparently wide enough to include acquisition of
property by a Hindu female under an instrument 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 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 cases, 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 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
subsection (1). 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
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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).”
Bhagwati, J., laid down the nature of the right which a
Hindu widow has to be maintained out of the joint family
estate in the following terms:-
“It is settled law that a widow is entitled to
maintenance out of her deceased husband’s estate,
irrespective whether that estate may be in the hands of
his male issue or it may be in the hands of his
coparceners. The joint family estate in which her
deceased husband had a share is liable for her
maintenance and she has a right to be maintained out of
the joint family properties and though, as pointed out
by this Court in Rani Bai v. Shri Yadunandan Ram(1) her
claim for maintenance is not a charge upon any joint
family property until she has got her maintenance
determined and made a specific charge either by
agreement or a decree or order of a Court, her right is
“not liable to be defeated except by transfer to a
bonafide purchaser for value without notice of her
claim or even with notice of the claim unless the
transfer was made with the intention of defeating her
right”. The widow can for the purpose of her
maintenance follow the joint family property “into the
hands of any one who takes it as a volunteer or with
notice of her having set up a claim for maintenance”.
The courts have even gone to the length of taking the
view that where a widow is in possession of any
specific property for the purpose of her maintenance, a
purchaser buying with notice of her claim is not
entitled to possession of that property without first
securing proper maintenance for her, vide Rachawa &
Ors. v. Shivayanappa(2) cited with approval in
Ranibai’s case (supra). It is, therefore, clear that
under
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the Sastric Hindu Law a widow has a right to be
maintained out of joint family property and this right
would ripen into a charge if the widow takes the
necessary steps for having her maintenance ascertained
and specifically charged in the joint family property
and even if no specific charge is created, this right
would be enforceable against joint family property in
the hands of a volunteer or a purchaser taking it with
notice of her claim. The right of the widow to be
maintained is of course not a jus in rem, since it does
not give her any interest in the joint family property
but it is certainly jus ad rem, i.e., a right against
the family property. Therefore, when specific property
is allotted to the widow in lieu of her claim for
maintenance, the allotment would be in satisfaction of
her jus ad rem, namely, the right to be maintained out
of the joint family property. It would not be a grant
for the first time without any pre-existing right in
the widow. The widow would be getting the property in
virtue of her pre-existing right, the instrument giving
the property being merely a document effectuating such
pre existing right and not making a grant of the
property to her for the first time without any
antecedent right or title. There is also another
consideration which is very relevant to this issue and
it is that, even if the instrument were silent as to
the nature of the interest given to the widow in the
property and did not, in so many terms, prescribe that
she would have a limited interest, she would have no
more than a limited interest in the property under the
Hindu Law as it stood prior to the enactment of the Act
and hence a provision in the instrument prescribing
that she would have only a limited interest in the
property would be, to quote the words of this Court in
Nirmal Chand’s case (supra), “merely recording the true
legal position” and that would not attract the
applicability of sub-section (2) but would be governed
by sub-section (1) of section 14.
All the three Judges were thus unanimous in accepting
the appeal on the ground that Tulasamma’s right to
maintenance was a pre existing right, that it was in
recognition of such a right that she obtained property under
the compromise and that the compromise there fore did not
fall within the ambit of sub-section (2) of section 14 of
the Act but would attract the provisions of sub-section (1)
thereof coupled with the Explanation thereto. With respect
we find our selves in complete agreement with the
conclusions arrived at by
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Bhagwati and Fazal Ali, JJ., as also the reasons which
weighed with them in coming to those conclusions.
4. Mr. S. T. Desai, learned counsel for the plaintiffs-
respondents, and Mr. U. R. Lalit who very ably assisted the
Court at its request, contended that for a Hindu female to
be given the benefit of subsection (1) of section 14 of the
Act she must first be an owner, albeit a limited owner, of
the property in question and that Tulasamma not being an
owner at all, the Bench presided over by Bhagwati, J., did
not reach a correct decision in holding that the sub-section
aforesaid covered her case. We find that only that part of
this argument which is interpretative of sub-section (1) is
correct, namely, that it is only some kind of “limited
ownership” that would get enlarged into full ownership and
that where no ownership at all vested in the concerned Hindu
female, no question of the applicability of the sub-section
would arise. We may here reproduce in extenso section 14 of
the Act with advantage:
“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 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 her marriage, or by her own skill
or exertion, or by purchase or by prescription, or in
any other manner what-so-ever, and also any such
property held by her as “Stridhana” immediately before
the commencement of this Act.
“(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 prescribed a restricted estate
in such property.”
A plain reading of sub-section (1) makes it clear that
the concerned Hindu female must have limited ownership in
property, which limited ownership would get enlarged by the
operation of that sub section. If it was intended to enlarge
any sort of a right which could
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in no sense be described as ownership, the expression “and
not as a limited owner” would not have been used at all and
becomes redundant, which is against the well-recognised
principle of interpretation of statutes that the Legislature
does not employ meaningless language. Reference may also be
made in this connection to Eramma v. Verrupanna & others(1)
where in Ramaswami, J., speaking on behalf of himself,
Gajendragadkar, C.J., and Hidayatullah, J., interpreted the
sub-section thus:
“The property possessed by a female Hindu, as
contemplated in the section, is clearly property to
which she has acquired some kind of title whether
before or after the commencement of the Act. It may be
noticed that the Explanation to section 14(1) sets out
the various modes of acquisition of the property by a
female Hindu and indicates that the section applies
only to property to which the female Hindu has acquired
some kind of title, however restricted the nature of
her interest may be. The words “as full owner thereof
and not as a limited owner” as given in the last
portion of sub-section (1) of section 14 clearly
suggest that the legislature intended that the limited
ownership of a Hindu female should be changed into full
ownership. In other words, section 14(1) of the Act
contemplates that a Hindu female who, in the absence of
this provision, would have been limited owner of the
property, will now become full owner of the same by
virtue of this section. The object of the section is to
extinguish the estate called ‘limited estate’ or
‘widow’s estate’ in Hindu Law and to make a Hindu
woman, who under the old law would have been only a
limited owner, a full owner of the property with all
powers of disposition and to make the estate heritable
by her own heirs and not revertible to the heirs of the
last male
holder………………………………………….
……………………………………………….
……………………………………………….
……………………………………………….
…………..It does not in any way confer a title on
the female Hindu where she did not in fact possess any
vestige of title. It follows, therefore, that the
section cannot be interpreted so as to validate the
illegal possession of a female Hindu and it does not
confer any title on a mere trespasser. In other words,
the provisions of section 14(1) of the Act cannot be
attracted in the case of a Hindu female who is in
possession
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of the property of the last male holder on the date of
the commencement of the Act when she is only a
trespasser with out any right to property.”
This interpretation of sub-section (1) was cited with
approval in Mangal Singh and Others v. Shrimati Rattno &
Another(1) by Bhargava, J., who delivered the judgment of
the Court and observed:
“This case also, thus, clarifies that the
expression “possessed by” is not intended to apply to a
case of mere possession without title, and that the
legislature intended this provision for cases where the
Hindu female possesses the right of ownership of the
property in question. Even mere physical possession of
the property without the right of ownership will not
attract the provisions of this section. This case also,
thus, supports our view that the expression “possessed
by” was used in the sense of connoting state of
ownership and, while the Hindu female possesses the
rights of ownership, she would become full owner if the
other conditions mentioned in the section are
fulfilled. The section will, however, not apply at all
to cases where the Hindu female may have parted with
her rights so as to place herself in a position where
she could, in no manner, exercise her rights of
ownership in that property any longer.”
Limited ownership in the concerned Hindu female is thus
a sine qua non for the applicability of sub-section (1) of
section 14 of the Act but then this condition was fully
satisfied in the case of Tulasamma to whom the property was
made over in lieu of maintenance with full rights of
enjoyment thereof minus the power of alienation. These are
precisely the incidents of limited ownership. In such a case
the Hindu female represents the estate completely and the
reversioners of her husband have only a spes successionis,
i.e., a mere chance of succession, which is not a vested
interest and a transfer of which is a nullity. The widow is
competent to protect the property from all kinds of trespass
and to sue and be sued for all purposes in relation thereto
so long as she is alive. Ownership in the fullest sense is a
sum-total of all the rights which may possibly flow from
title to property, while limited ownership in its very
nature must be a bundle of rights constituting in their
totality not full ownership but something less. When a widow
holds the property for her enjoyment as long as she lives,
nobody is entitled to deprive her of it or to deal with the
property in any manner to her detriment. The
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property is for the time being beneficially vested in her
and she has the occupation, control and usufruct of it to
the exclusion of all others. Such a relationship to property
in our opinion falls squarely within the meaning of the
expression “limited owner” as used in sub-section (1) of
section 14 of the Act. In this view of the matter the
argument that the said sub-section did not apply to
Tulasammas’s case (supra) for the reason that she did not
fulfil the condition precedent of being a limited owner is
repelled.
5. The next contention raised by Mr. Desai and Mr.
Lalit also challenged the correctness of the decision in
Tulasamma’s case. They argued that in any case the only
right which Tulasamma had prior to the compromise dated July
30, 1949 was a right to maintenance simpliciter and not at
all a right to or in property. For the reasons which weighed
with Bhagwati and Fazal Ali, JJ., in rejecting this argument
we find no substance in it as we are in full agreement with
these reasons and the same may not be reiterated here.
However we may emphasize one aspect of the matter which
flows from a scrutiny of subsection (1) of section 14 of the
Act and the explanation appended thereto. For the
applicability of sub-section (1) two conditions must co-
exist, namely:
(1) the concerned female Hindu must be possessed
of property and
(2) such property must be possessed by her as a
limited owner.
If these two conditions are fulfilled, the sub-section
gives her the right to hold the property as a full owner
irrespective of the fact whether she acquired it before or
after the commencement of the Act.
The Explanation declares that the property mentioned in
sub section (1) includes both movable and immovable property
and then proceeds to enumerate the modes of acquisition of
various kinds of property which the sub-section would
embrace. Such modes of acquisition are:
(a) by inheritance,
(b) by devise,
(c) at a partition,
(d) in lieu of maintenance or arrears of
maintenance,
(e) by gift from any person, whether a relative
or not, before, at or after her marriage,
(f) by her own skill or exertion,
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(g) by purchase,
(h) by prescription,
(i) in any other manner what-so-ever, and
(j) any such property held by her as “stridhana”
immediately before the commencement of this
Act.
A reference to the Hindu law as it prevailed
immediately before the commencement of the Act would lead
one to the conclusion that the object of the Explanation was
to make it clear beyond doubt that all kinds of property
which fell within the ambit of the term “stridhana” would be
held by the owner thereof as a full owner and not as a
limited owner. Reference may in this connection be made to
the following enumeration of “Stridhana” in paragraph 125 of
Mulla’s Hindu law:
(1) Gifts and bequests from relations.
(2) Gifts and bequests from strangers.
(3) Property obtained on partition.
(4) Property given in lieu of maintenance.
(5) Property acquired by inheritance.
(6) Property acquired by mechanical arts
(7) Property obtained by compromise.
(8) Property acquired by adverse possession.
(9) Property purchased with stridhana or with
savings of income of stridhana.
(10) Property acquired from sources other than
those mentioned above.
These heads of property are then dealt with at length
by Mulla in paragraphs 126 to 135 of his treatise. Prior to
the commencement of the Act, the Hindu female did not enjoy
full ownership in respect of all kinds of “Stridhana” and
her powers to deal with it further varied from school to
school. There was a sharp difference in this behalf between
Mitakshara and Dayabhaga. And then the Bombay, Benaras,
Madras and Mithila schools also differed from each other on
the point. Succession to different kinds of “Stridhana” did
not follow a uniform pattern. The rights of the Hindu female
over “Stridhana” varied according to her status as a maiden,
a married woman and a widow. The source and nature of the
property acquired also placed limitations on her ownership
and made a difference to the mode of succession thereto. A
comparison of the contents of the Explanation with those of
paragraph 125 of Mulla’s Hindu Law would show that
311
the two are practically identical. It follows that the
Legislature in its wisdom took pains to enumerate
specifically all kinds of “Stridhana” in the Explanation and
declared that the same would form “property” within the
meaning of that word as used in sub-section (1). This was
done, in the words of Bhagwati, J, “to achieve a social
purpose by bringing about change in the social and economic
position of women in Hindu society”. It was a step in the
direction of practical recognition of equality of the sexes
and was meant to elevate women from a subservient position
in the economic field to a pedestal where they could
exercise full powers of enjoyment and disposal of the
property held by them as owners, untrammelled by artificial
limitations placed on their right of ownership by a society
in which the will of the dominant male prevailed to bring
about a subjugation of the opposite sex. It was also a step
calculated to ensure uniformity in the law relating to the
nature of ownership of “Stridhana”. This dual purpose
underlying the Explanation must be borne in mind and given
effect to when the section is subjected to analysis and
interpretation, and sub-section (2) is not to be given a
meaning which would defeat that purpose and negative the
legislative intent, if the language used so warrants. A
Combined reading of the two sub-sections and the Explanation
leaves no doubt in our minds that sub-section (2) does not
operate to take property acquired by a Hindu female in lieu
of maintenance or arrears of maintenance (which is property
specifically included in the enumeration contained in the
Explanation) out of the purview of sub-section (1).
6. Tulasamma’s case (supra) having, in our opinion been
decided correctly, the appeal in hand must succeed as the
facts in the latter are on all fours with those in the
former. Mr. Desai did vehemently argue that this was not so
inasmuch as by the decree dated August 18, 1909 the
ownership of the land in dispute was vested in Dayalji and
Dayabhai sons of Mohanbhai and Motabhai son of Gulabbhai
while Bai Vajia was only given the right to possess it for
her life-the ownership remaining all along in the said three
persons, but this argument does not find favour with us. It
has to be noted that so long as she lived, Bai Vajia was to
have full enjoyment of and complete control over the land,
barring any right to alienate it. Such a right was also
taken away from the said three persons. The arrangement
meant that whatever rights existed in relation to the land
during the life-time of Bai Vajia, were exercisable by her
alone and by nobody else. Not even the said three persons
could deal with the land in any manner whatsoever, and if
they did, Bai Vajia had the right to have their acts
declared null and void during her life-time. After the land
312
was made over to her she became its owner for life although
with a limited right and therefore only as a limited owner.
Under the decree the land vested in the said three persons
only so long as they were not dispossessed of it at the
instance of Bai Vajia in accordance with the terms stated
therein. As soon as Bai Vajia took possession of the land,
no rights of any kind whatsoever in relation thereto
remained with them and thus they ceased to be the owners for
the span of Bai Vajia’s life.
7. Following Tulsamma’s case we hold that Bai Vajia
became a full owner of the land in dispute under the
provisions of sub-section (1) of section 14 of the Act and
that sub-section (2) thereof has no application to her case,
the land having been given to her as a limited owner and in
recognition of her pre-existing right against property. In
the result therefore, the appeal succeeds and is accepted.
The judgment and the decree of the High Court are set aside
and the suit giving rise to this appeal is dismissed. In the
circumstances of the case, however, we leave the parties to
bear their own costs throughout.
S.R. Appeal allowed.
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