JUDGMENT
N.V. Balasubramanian, J.
1. An interesting question of law on the scope of Section 14 of the Hind Succession Act, 1956 arises on the facts of the case. The relevant facts are as under: One Kuppuswami Chettiar had two wives and through his first wife he had 3 sons and through his second wife he had three daughters, and his second daughter Kaliammal is the defendant in the suit. She is the appellant in the appeal. His first two daughters had no issues and his third daughter, by name, Sornammal had a daughter by name, Rajalakshmi. The plaintiff, the respondent herein, is the son of the said Rajalakshmi. On 23.8.1926, there was a family partition between Kuppuswami Chettiar and his sons through his first wife and in the partition deed, a limited interest in some of the family properties, was given to his three daughters. The said document is marked as Ex.A-5. At the time of the partition made in the year 1926, his first daughter Palaniammal was aged 10 years, his second daughter Kaliammal, the defendant in the suit and the appellant herein was aged 8 years and his third daughter Sornammal was aged 5 years.
2. The suit properties agricultural lands-admittedly formed part of the partition deed dated 23.8.1926. All the three daughters of Kuppuswami Chettiar had entered into an agreement inter se between them on 12.3.1944 wherein they agreed between themselves that they would enjoy the properties allotted to them absolutely with full power of alienation. The dispute in the suit arose in the following manner: The plaintiff, as already stated, is the great grandson of Kuppuswami Chettiar through his third daughter Sornammal, the sister of the appellant, and “according to him, he was adopted by the appellant’s husband in the year 1972 and the said adoption took place according to the Hindu customs and rites by a deed of adoption dated 12.7.1972. According to the plaintiff, the relationship between the plaintiff and his adoptive mother became strained and the appellant has become the tool in the hands of enemies of the plaintiff and his parents and she was trying to alienate the suit property. According to the plaintiff, the appellant had only life interest over the suit property and the plaintiff has absolute interest in the property by virtue of the partition deed dated 23.8.1926, and therefore, he has filed the suit for declaration that he is the absolute owner of the suit property after the life time of his adoptive mother Kaliammal the appellant and also for permanent injunction restraining the appellant from alienating or transferring the suit property to the detriment of the plaintiff.
3. The defendant/appellant in her written statement has stated that the adoption was by her husband, and not by the appellant or both by Subbiah Chettiar and the appellant. The case of the appellant was that the daughters of Kuppuswami Chettiar were to enjoy the property for their life time and ultimately, the property should go to the santhathis of the aforesaid daughters and in the event of any of the daughters dying without any santhathi, the property should go to other daughters and then to their santhathis. She, therefore, pleaded that since there is no scope for any santhathi for her, she has a right to alienate the entire property during her life time. Her case was that she never adopted the plaintiff and the plaintiff does not have the status of adopted son of the appellant. It was also pleaded that no title vested in the plaintiff and he has no vested right in the property.
4. The trial court, on the basis of the above pleadings, found that the adoption was valid and the appellant could be regarded as the adoptive mother of plaintiff. Considering the partition deed dated 23.8.1926 the trial court held that under Section 14(2) of the Hindu Succession Act, 1956, the appellant had become the full owner of the suit properties and she has full power of alienation and therefore, the suit filed by the plaintiff was not maintainable and in this view, the trial court dismissed the suit.
5. The unsuccessful plaintiff preferred an appeal before the Sub Court, Udumalpet. The first appellate court, on the basis of the evidence, recorded a finding that it is not correct to state that the adoption was to the husband of the appellant alone and the plaintiff was the adopted son of the appellant also. The first appellate court also held that the plaintiff is the santhathi of the appellant and it upheld the adoption. The above finding regarding the validity of the adoption and the finding that adoption was both for the appellant and her husband are not challenged in the second appeal and hence the said findings have become final.
6. The first appellate court also held that under the deed of partition, the appellant had only limited interest and the rights obtained by her would fall under the provisions of Section 14(2) of the Hindu Succession Act and such interest did not enlarge as an absolute one under Section 14(1) of the Hindu Succession Act. The first appellate court, therefore, held that though the plaintiff was entitled to the relief of declaration, the appellant would be entitled to enjoy the property till her lifetime, and vested interest would remain with the plaintiff. The first appellate court, however, dismissed the appeal as regards the relief of injunction, as the court found that the appellant had the right to enjoy the property during her lifetime and the first appellate court held that the appellant could enjoy the property without alienating the same. It is against the judgment and decree of the first appellate court, the present second appeal has been preferred by the defendant in the suit and the following questions of law have been framed:
1. Whether the lower appellate court misconstrued the terms of Ex. A-5 for its conclusion that the appellant is entitled to a life interest in respect of the property in dispute?
2. Whether the conferment of a life interest in favour of an unmarried daughter under the Hindu Law for her maintenance and married expenses would get enlarged under the provisions of Section 14(1) of the Hindu Succession Act?
3. Whether the decision of the lower appellate court is vitiated by a failure to refer to Ex.A-6 and the oral evidence let in by the parties hereto while deciding the point framed by it?
4. Whether the decision of the lower appellate court is vitiated by a failure to frame specific point for determination as contemplated under Order 20, Rule 4 and Order 41, Rule 131.C.P.C.?
7. Mr. V. Narayanasaray, learned Counsel for the appellant submitted that the view of the lower appellate court on the interpretation of See. 14 of the Hindu Succession Act was plainly erroneous in law and according to him, in the deed dated 23.8.1926 Kuppuswami Chettiar settled the property in favour of his three daughters for maintenance and the appellant, one of the daughters of Kuppuswami Chettiar, was in possession and enjoyment of the property on the date when the Hindu Succession Act came into force and she had a vestige of right of maintenance and therefore, her right would blossom into full ownership under Section 14(1) of the Hindu Succession Act. He submitted that the property was given for maintenance of the appellant and she was in possession of the property in lieu of maintenance. According to the learned Counsel for the appellant, the appellant was in possession of the suit property by virtue of the right of maintenance granted in her favour and once the property was given fat maintenance, her right would enlarge into full ownership as she was in possession and enjoyment of the property on the date when the Hindu Succession Act came into force. The further submission of the learned Counsel for the appellant was that Section 14(2) of the Hindu Succession Act should be read as a proviso to Section 14(1) of the said Act and it should have only restricted operation. He also submitted that right of maintenance is a pre-existing right and once the property was given in recognition of her right of maintenance, the property held by a Hindu female would enlarge into a full ownership, notwithstanding the restrictive covenants contained in the deed of partition. He also submitted that in any event, the rights of the appellant continued to be the same both before and after her marriage and the intention of the settlor was to provide for the maintenance of his daughters and since the rights continued to be same, her rights would enlarge under Section 14(1) of the Hindu Succession Act. In support of his submissions, learned Counsel relied upon the following decisions: (1) Ramaswami Gounder, etc. v. Adikesava Gounder and Ors. (1995) 2 L.W. 810. (2) C. Masilamani Mudahar v. Idol of Sri Swaminathaswami . (3) Shanmugha Udayar v. Sivanandam . (4) . (5) Kamala Bai Ammal v. Punyakoti Mudaliar (died) and 14 Ors. (1998)2 L.W. 452. (6) Raghubar Singh and Ors v. Gulab Singh and Ors. (1998)5 A.D. (S.C.) 197. (7) Laxmappa v. Balava K. T. Chavadi . (8) Tulasamma v. Sesha Reddi 90 L. W. 89 (S.N.) and (9) Thdta Sesharatnamma and Anr. v. Thota Manikvamma (dead) by Lrs. and Ors. (1992) L. W. 601. He also submitted that the decision of the Supreme Court in the case of Bhura and Ors. v. Kashiram (1994) 2 L.W. 1 at 4 cannot be regarded as a good law after the decision of the Supreme Court in the case of Laxmappa v. Balawa K. T. Chavdi .
8. Mrs. Prabha Sridevan, learned Counsel for the respondent, on the other hand, submitted that settlement in favour of a married daughter would not fall within the scope and purview of Section 14(1) of the Hindu Succession Act. According to the learned Counsel, under the settlement, a new right was created in favour of married daughters and under the Hindu Law, there is no right of maintenance for a married daughter. She also referred to the provisions of Hindu Adoptions and Maintenance Act and submitted that under the said enactment, there is no legal right of maintenance for a married daughter. She submitted that there is no moral obligation on the part of the father to provide for maintenance to a married daughter, as on her marriage, the daughter would ceases to be a member of the family of her father and she has to be looked after by her husband. She therefore submitted that what was given under the settlement to the appellant, after her marriage was a new right and though it was given for maintenance, she had no pre-existing right against the family property. She submitted that the case of the appellant would squarely fall within the scope of Section 14(2) of the Hindu Succession Act. She submitted that the decisions relied upon by the learned Counsel for the appellant relate to case of the properties devolving on widows of properties allotted to them at the time of partition, but, on the other hand, according to the learned Counsel, the decision of the Supreme Court in the case of Bhura and Ors. v. Kashiram (1994) 2 L. W. 1 is a case of settlement in favour of a married daughter which would squarely apply to the facts of the case. She also relied upon the following decisions in support of her submissions, (1) N. Rajammal (died) v. P. Maragathammal . (2) K.R. Chinnathambi Gounder v. Bhanumathy and four Ors. (1998) 2 L.W. 271. (3) G. Appaswami v. R. Sarangapani A.I.R 1978 S.C. 105L (4) Subbu Naidu v. Rajammal (1976) 2 M.L.J. 205. (5) Soundarajan v. Venkataraman (1976) 2 M.L.J. 466 and (6) Smt. Gumpha and Ors. v. Jaibai (1994) 2 L. W. 4.
9. I have carefully considered the submission of the learned Counsel for the parties. The relevant clause of the deed of settlement executed by Kuppuswami Chettiar dated 23.8.1926 in favour of his three daughters reads as under:
The properties mentioned in the 4th list should be shared equally by the minor daughter of the second wife of Kuppuswami Chettiar, numbered one namely (1) Palaniammal aged about ten years, (2) Kaliammal, aged about eight years, and (3) Sornammal, aged about five years and the properties should be maintained by guardians of the abovesaid minor daughters namely the aforesaid (1) Palaniappa Chettiar (d), (2) Muthuswami Chettiar, S/o. S.K. Karuppian Chettiar (b), (3) S.K. Somasundaram Chettiar, S.K. Sabapathi Chettiar and S.K. Shanmuga Sundara Chettiaf (numbered 5) Palanappa Chettiar 1st guardian of the Balasubramanian Chettiar (minor) and the 2nd guardian of the aforesaid minors C.K. Muthusami Chettiar (2) and that after spending the amount from the aforesaid properties towards the maintenance of the aforesaid minor girls and the lands and for payment of taxes and that after spending money for performing the marriage of those three girls, the balance amount from the yields and the properties mentioned in the list should be handed over equally to the respective persons not alienate the properties mentioned in the list and they should not subject it to any encumbrance and that in case if any one of them do not have any issues, that share of the property should go to the other two girls and their issues after her life time and that the guardians of the aforesaid Balasubramanian Chettiar and numbered five namely Palaniappa Chettiar 1, Muthuswami Chettiar son of C. Karuppian Chettiar 2 should spend the yield from the aforesaid properties mentioned in the 3rd list and 4th list towards the maintenance of the aforesaid minor daughters and sons and that the balance amount should be with Muthuswami Chettiar who is the 2nd guardian and he should himself perform the marriage of the said three minor daughters and sons and that he should handover the balance amount and the property after the aforesaid minor Balasubramaniam Chettiar attains majority.
10. The question whether the provisions of Section 14(1) or the provisions of Section 14(2) of the Hindu Succession Act would apply to the bequest made in favour of the appellant would depend upon the question whether a married daughter has any right to claim maintenance against her father. In Mulla’s Principles of Hindu Law’ 15th Edition in Chapter 25 ‘Maintenance’ at page 642, the relevant portion reads as under:
A father is bound to maintain his unmarried daughters. On the death of the father, they are entitled to be maintained put of his estate. A daughter on marriage ceases to be a member of her father’s family and becomes a member of her husband’s family. Thenceforth she is entitled to be maintained by her husband, and after his death, out of his estate.
In Mayne’s Hindu Law 14th Edition, Section 724 Chapter 23, page 1154 the learned author deals with the right of a daughter after marriage and the learned author has stated thus:
After marriage her maintenance is a charge upon her husband his life, and after his death upon her husband’s family.
In S.V. Gupta’s Hindu Law. III Edition, Vol.11, at page 1042, the learned author has stated thus:
A Hindu, if he has separate property, is under a moral obligation to maintain his married daughter who is destitute but there is a difference of opinion on the question whether this moral obligation ripens into legal right against his property. According to the High Court of Bombay it does not According to the Calcutta and Madras High Courts, it does. A daughter is to be regarded destitute when she is unable to obtain maintenance from her husband or after his death from his property or her father-in-law or his property after his death.
N.R. Raghavachariar’s Hindu Law-Principles and Precedents’ – VIII Edition at page 1191, the learned author has stated thus:
A father is not legally bound to maintain his daughter after her marriage, and her right is only against the husband, or after his death, his estate, if any, but there is still a moral duty upon him to see that his daughter though married does not suffer for want of maintenance, from her husband’s indigent family and this duty ripens into a legal obligation to maintain her when the property is inherited by her father’s heirs, but even then she cannot claim separate maintenance.
11. In Venkarazu v. Kotayya 23 M.L.J. 223, Sadasiva Aiyar, J., speaking for the Bench made the following observations which are relevant for the purpose of this case:
But even assuming for argument’s sake, (I do not concede it except for the purpose of argument) that unless the daughter has some claim on her father’s estate for her maintenance her power of disposal as heir of her father cannot extend to the finding of means for meeting the supreme necessity of procuring her own ‘necessaries’, has not a widowed destitute daughter whose husband’s family is unable to give her anything, has she not a legal claim on her father for her maintenance at least when she lives with him as a member of his family? Has she not, at least, a social and moral claims against her father which ripens into legal right against his estate after his death just as in the case of a daughter-in-law who has only a social and moral claim against her father-in-law if she has no ancestral property and whose moral claims becomes a legal claim after his death? The authorities are all in favour of the existence of such a right in the destitute married daughter except one doubtful decision in Bai Mangal v. Bai Rukkmani (1898) I.L.R. 23 Bom. 291 J.C. Ghose says, (Hindu Law, pp.295 and 296) “The law of Narada is clear that when the husband’s family is in destitute circumstances, the father’s family has to maintain a female. It is difficult to see how it is only a moral duty…. When the “father’s family marry a girl to a poor man how can it be said that when she becomes helpless on account of indigence of the husband’s family the father’s family can turn her out without a maintenance?. According to the strict letter of the Hindu Law and also according to the nature of the constitution of Hindu Society, it is a clear legal duty on the part of the father’s family to maintain a woman under the circumstances noted above”. And then the learned author proceeds to criticise Bai Mangal v. Bai Rukkmani (1898) I.L.R. 23 Bom. 291. and says that the decision is not correct according to the old law of the Rishis.” Mr. Mayne was formerly of opinion that if the husband’s family are unable to support a married daughter she must be provided for by the family of her father’ and he was supported by Macnaghten (Vol.2 p. 118) and West and Buhler (233, 245, 248 and 437) and 2 Strange (page 83,90), Mr. Mayne, however, seems to have changed his opinion after the decision in Bai Mangal v. Bai Rukkmani (1898) I.L.R. 23 Bom. 291. The learned Judge who decided that case while finding on the question of fact that it is not clear that she (‘the daughter’) is absolutely without any provision, ‘proceeded to lay down that even if she was destitute, there was only a social and moral obligation and not a legally enforceable right by which her maintenance can be claimed against her father’s family and even though she had returned to live with her father and brother after she became a widow. With the greatest difference to the very learned judges (Justices Ranade and Parsons) who decided the case in Bai Mangal v. Bai Rukkmani, 1898 I.L.R. 23 Bom. 291. I must regretfully express my dissent from that decision and I concur in the opinion of J.C. Ghose, West and Buhler, Macnaghten and Strange that there is a legal obligation on the father and his family to support a destitute daughter (though she had been married away) if she could not get sufficient provision from her deceased husband’s family for her maintenance. Bhattacharya also says that under the Hindu Law texts, widowed daughter are entitled to maintenance and Justice, required that their right should be recognised. The argument that by marriage she becomes a member of another family and becomes so to say, ‘dead’ to her own family is merely carrying legal fictions to absurd lengths. A wife is half her husband’s body but you cannot on that account give double rations to the husband for his meals and give none to the wife; nor does the daughter lose her consanguineness, blood relationship to her father and her right of inheritance to him and other similar rights, simply because she becomes attached by Pinda, Gotra and Sdotaka to her husband’s family by marriage’.
[emphasis supplied]
12. The decision of this Court make it clear that there is a legal or moral obligation on the part of the father and his family to support a married daughter, if she happens to be a destitute and she could not get sufficient provision from her husband’s family for her maintenance. The Supreme Court in Laxmappa v. Balawa K.T. Chavdi A.I.R. 1996 N.S.C. 3497, after noticing the relevant portion in Mulla’s book on Hindu Law, 15th Edition, held that the position of a married daughter is some what different and it is acknowledged that if the daughter is unable to obtain maintenance from her husband, or, after his death, from his family, her father, if he got separate property of his own, is under a moral though not a legal obligation to maintain her. The decision of the Supreme Court establishes the proposition that a daughter would have a right of maintenance when she is a destitute after marriage and in cases where her husband can look after and provide for her maintenance, there is no legal or moral obligation on the part of the father of the girl to maintain his married daughter.
13. Section 21 of the Hindu Adoptions and Maintenance Act, 1956 also provide that there is no legal right or maintenance for a married daughter from her father and only if she becomes a widow and unable to maintain herself, a legal obligation is cast on the father to maintain his widowed daughter provided she is a destitute. The analysis of the above decision shows that the contents of the right of a married daughter is such that she had no pre-existing right of maintenance against her father or his ‘property after the performance of her marriage. It is in this view, the question whether the provisions of Section 14(1) or 14(2) of the Hindu Succession Act would apply to the facts of the case has to be considered.
14. There is no dispute that Section 14(2) of the Hindu Succession Act has to be read as a proviso or an exception to Section 14(1) of the said Act and it comes into operation only if acquisition in any of thee methods indicated therein is made for the first time without there being any preexisting right in the female Hindu to the property. The provisions of Section 14(1) of the Act has been the subject matter of consideration before the Supreme Court in several decisions and in Tulasamma v. Sesha Reddi 99 L.W. 89 (S.N.), the Supreme Court considered the provisions of Section 14(1) of the Act and held as under:
Sub-section (2) of Section 14 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 Parshad v. Smt. Kanso Devi . 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 impings as little as Possible in 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).
Murtaza Fazl Ali, J. who wrote a separate judgment in Tulasdmma’s case, 99 LW. 89 (S.N.), held that Section 14(2) comes into operation in two transactions, namely, a gift or a will which clearly would not include property received by a Hindu female in lieu of maintenance or at a partition. Learned Judge held that Section 14(2) of the Act would apply if the following three conditions are fulfilled:
(1) that the property must have been acquired by way of gift, will, instrument, decree, order of the court Or by an award;
(2) that any of these documents executed in favour of a Hindu female must prescribe a restricted estate in such property; and
(3) that the instrument must create or confer a new right, title or interest on the Hindu female and not merely recognise or give effect to a pre-texisting right which the female Hindu already possessed.
15. Therefore, Section 14(2) of the Act would apply where a female Hindu was in possession of a property not by virtue of any pre-existing right, but otherwise and when the settlor imposes certain conditions on the settlee against the right of enjoyment of the property settled, the restrictions imposed would operate. However, where the property is given to a female in lieu of preexisting right of maintenance, which existed under the Shastric Hindu Law, the restrictions, if any, imposed against her right of enjoyment of properties would not operate and her restricted right would enlarge and blossom into a full and absolute right. It is significant to notice that in Tulasamma’s case, 99 L.W. 89 (S.N.), Murtaza Fazl Ali, J. considered the case of a daughter and the following observation made by the learned Judge is relevant for the purpose of this case.
…the court failed to notice that Sub-section (2) of Section 14 would apply only where a new right is created for the first time by virtue of a gift, will etc., or the like executed in favour of the widow in respect of which she had no prior interest in the property at all. For instance a daughter is given a limited interest in presence of the widow. Here the daughter not being an heir in presence of the widow (before the Hindu Succession Act came into force) she had no right or share in the property, and if she was allotted some property under any instrument, a new and fresh right was created in her favour for the first time which she never possessed. Such, a case would be squarely covered by Section 14(2) of the Act.
16. The same view was reiterated by the Supreme Court in Thota Sesharatnamma and Ors. v. Thota Manikyamma (dead) by L.Rs. and Ors. (1992)1 L.W. 601 and the Apex Court held as under:
In a long series of cases the Supreme Court has taken a consistent view that Section 14(2) of the Act is in the nature of a Proviso or an exception to Section 14 and comes Into operation only if acquisition in any of the methods indicated therein is made for the first time -without there being any pre-existing right in the female Hindu to the property. If the case falls under the provisions of Section 14(1) of the -Act, then the female Hindu shall be held to be full owner of the property and Sub-section (2) of Section 14 will only apply where the property is acquired without there being any pre-existing right of the female Hindu in such property. Thus, we affirm and, reiterate that Sub-section (2) of Section 14 will be construed more in the nature of a proviso or an exception to Sub-section (1) of Section 14 of the Act. This view lends support to the object of the section which was to remove the disability on women imposed by law to achieve a social purpose by bringing about change in the social and economic position of women in Hindu Society.
17. In Ramaswami Gounder etc. v. Adikesava Gounder and Ors. (1995)2 L. W. 810, the observations made by the Supreme Court are relevant for the purpose of this case which read as under:
This Court has delivered a string of judgments dealing with Section 14 of the Act. All these judgment have been summarised in the concurring judgments of two learned Judges in Thota Seshratnamma and Anr. v. Thota Manikvamma (dead) by L.Rs. and Ors. . But consciously, it has been held that Section 14(2) of the Act is in the nature of proviso or an exception and it comes into operation only if acquisition by any of the methods set out in the explanation to Section 14(1) is made for the first time without there being any pre existing right in the Hindu woman. If her case fell under the provisions of Section 14(1), the Hindu woman became the full owner of the property. The concept of a Hindu widow’s estate was not relevant. It was enough if the Hindu woman had even a vestige of title to the property and she had acquired it by virtue of a pre-existing right. That the limited right had been conferred upon her by a document did not attract the provisions of Section 14(1) if the Hindu woman had a pre-existing right to maintenance. The document only recognised and gave effect to the preexisting right to maintenance. The document did not have to state that the limited estate was being conferred upon her in lieu of her pre-existing right.
18. The Apex Court again considered the question in the case of C. Masilamani Mudaliar V. Idol of Sri Swaminathaswami , and held as under:
…if the acquisition of the property attracts Sub-section (1) of Section 14, Sub-section (2) does not come into play. If the acquisition is for the first time, without any vestige of pre-existing right under the instrument, document or device etc. then Sub-section (2) of Section 14 gets attracted. Sub-section (2) being in the nature of an exception, if does not engulf and wipe out the operation of Sub-section (1). Sub-section (2) of Section 14 independently operates in its own sphere. The right to disposition of property by a Hindu under Section 30 is required to be understood in this perspective and if any attempt is made to put restriction upon the property possessed by a Hindu female under an instrument, document or device, though executed after the Act had come into force, it must be interpreted in the light of the facts and circumstances in each case and to construe whether Hindu female acquired or possessed the property in recognition of her preexisting right or she gets the rights for the first time under the instrument without any vestige of pre-existing right. If the answer is in the positive, Sub-section (1) of Section 14 gets attracted. Thus construed, both Sub-sections (1) and (2) of Section 14 will be given their full play without rendering either as otiose or aids as means of avoidance.
19. The same view has been reiterated by the Supreme Court in Laxmappa v. Balawa K.T. Chavadi . and the law laid down by the Apex Court as under:
in that way, the father may not have had a legal obligation to maintain her but all the same there existed a moral obligation. And if in acknowledgement of that moral obligation the father had transferred property to his daughter then it is an obligation well-fructified. In other words, a moral obligation even though not enforceable under the law, would by acknowledgement, bring it to the legal of a legal obligation, for it would be perfectly legitimate for the father to treat himself obliged out of love and affection to maintain his destitute daughter, even impinging to a reasonable extent on his ancestral property. It is duly acknowledged in Hindu Law that the Karta of the family has in some circumstances, power to alienate ancestral property to meet an obligation of the kind. We would rather construe the said paragraph more liberally in the modern context having regard to the state of law which was been brought about in the succeeding years. Therefore, in our view, the High Court was within its right to come to the conclusion that there was an obligation on the part of the father to maintain his destitute widowed daughter.
20. A Bench of this Court in Shanmugha Udayar v. Sivanandam , held as under:
Section 14(1) of the Hindu Succession Act reads that 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. And as per Sub-section (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 of award prescribed a restricted estate in such property. The Supreme Court has given a must expansive interpretation to the general rule enacted in Sub-section (1) of Section 14. In order to invoke the application of Sub-section (2) it is necessary to satisfy the essential condition that the instrument which limits or restricts the estate should itself be the source of foundation of the female’s title to the property. If she had an existing interest in the property, the inter position of any instrument will not effect the operation of Sub-section (1). The instrument may be a deed of partition suit if the pre-existing right was there. Sub-section (2) cannot have the effect of taking the property out of the coverage of Sub-section (1). In any such case the mere fact that the instrument provides that the female Hindu is to have a limited estate or there is a restriction on her power of alienation or that the property will on her death revert to the next reversioner will not take the case out of the purview of Sub-section (1). Such terms are merely reiteration of the incidents of Hindu Law applicable to limited estate. When specific property is allowed to a widow in lieu of her claim for maintenance under an instrument which prescribe restricted estate, the acquisition of property by her is only by virtue of a pre-existing right. Such an acquisition would not be within the ambit of Sub-section (2) even if the instrument allotting the property prescribes a restricted estate in the property. Sub-section (2) must be read only as a proviso or exception to Sub-section (1) of Section 14 and its operation must be confined to cases where property is acquired for the first time as a grant without any preexisting right under instrument, the terms of which prescribe a restricted estate in the property.
21. In the decision of the Supreme Court in the case of Bhura and Ors. v. Kashiram, (1994) 2 L. W. 1, the testator therein created a life interest in favour of his daughter and also intended that the property should be ultimately retained by the family. Dr. A.S. Anand, J. (as His Lordship then was) speaking for the Bench held that the limited interest created in favour of the daughter would not enlarge into an absolute estate in view of the express provisions of Section 14(2) of the Hindu Succession Act and the relevant passage of the decision of the Apex Court reads as under:
The limited estate conferred upon Sarjabai by the will (W.P.4) could not even be enlarged into an absolute estate under the Hindu Succession Act, 1956, even though she was possessed of that property at the time of the coming into force of the Hindu Succession Act, 1956. Section 14(2) of the Act mandates that nothing contained in Sub-section (1) of Section 14 of the Hindu Succession Act, 1956 shall apply to any property acquired by way of gift or under Will or by any other instrument prescribing a restricted right in such property. In view of our finding that the Will (Ex.P-4) itself prescribed a restricted right of life-estate in the property in favour of Sarjabai, that estate could not be enlarged into an absolute estate in view of the express provisions of the Hindu Succession Act, 1956.
22. In this connection, it is profitable to notice a decision of S.S. Subramani, J. in the case of Kamla Bai Ammal v. Punyakoti Mudaliar (died) and 14 others (1998)2 L.W. 452, wherein the learned Judge considered the scope of Section 14(1) in relation to a settlement in favour of a widowed daughter and the learned Judge after quoting earlier decisions on this subject held that Section 14(1) of the Act would be attracted as the property given under the settlement was towards maintenance of the settlor’s widowed daughter and it was her pre-existing right. The relevant passage reads as under:
the only interpretation which could be given to the settlement deed in this case, is that the property given by the father under that settlement was towards maintenance for the enjoyment of his widowed daughter and it was a pre-existing right. When the Hindu Succession Act came into force, the same became an absolute right….
23. In a recent decision, the Supreme Court in the case of Raghubar Singh and Ors. v. Gulab Singh and Ors. (1998)5 A.D. (S.C.) 197, Dr. A.S. Anand, J. (as His Lordship then was) considered the right to maintenance of a wife and the learned Judge after quoting the Shastric Hindu Law, held as under:
According to the old Shastric Hindu Law, marriage between two Hindus is a sacrament a religious ceremony which results in a sacred and a wholly union of man and wife by virtue of which the wife becomes a part and parcel of the body of the husband. She is, therefore, called Ardhangani, it is on account of this status of a Hindu wife, under the Shastric Hindu law, that a husband was held to be under a personal obligation to maintain his wife and where he dies, possessed of properties, then his widow was entitled, as of right, to be maintained out of those properties. The right of a Hindu widow to be maintained out of the properties of her deceased husband is, thus, a spiritual and moral right, which flows from the spiritual and temporal relationship of husband and wife, though the right is available only so long as the wife continues to remain chaste and does not remarry.
The Supreme Court therefore held that where there is a pre-existing right of a Hindu widow which existed even under the Shastric Hindu law long before the passing of the 1937 or the 1946 Acts, the limited estate would enlarge to an absolute interest.
24. In view of the decisions of the Supreme Court on the topic, I am of the view, it is not necessary to refer other decisions relied upon by the learned Counsel for the parties. The law is well settled that if a Hindu widow was in possession of a property by virtue of vestige of title over the property, then, it could be said that she had acquired, the property by virtue of pre-existing right. In such a situation, the limited right conferred on her would blossom into full ownership under Section 14(1) of the Hindu Succession Act, as the settlement in her favour was made in recognition of and to give effect to pre-existing right of maintenance. Such a settlement may be made in favour of widows or it may be in favour of daughters or it may be made at the time of allotment of property to a destitute widowed daughter or to a destitute married daughter or to the female who are entitled under the law to be maintained from and out of the joint family property or the personal property of the settlor. In all such cases, the grant would be in lieu of maintenance. However, where a new right is created or where for the first time a right is given in favour of a female daughter who has no preexisting right against the properties, then, the provisions of Section 14(2) of the Act alone would be attracted.
25. The document in question, on the facts of the case, is a peculiar one. It deals with both the situations. The deed creates a rights of maintenance and it creates an interest in favour of an unmarried daughter and if the daughter remains unmarried on the date of the commencement of the Hindu Succession Act, her restricted right created in the document for maintenance would enlarge to a full right as it can be easily stated that the daughter had pre-existing right of maintenance against the property so long as she remains unmarried. It is not disputed that the appellant got married after the coming into force of Hindu Succession Act, 1956.
26. The second part of the document creates a limited interest in favour of married daughters and under the document, the married daughters were given a right to enjoy the property without alienation or encumbrance and if anyone of the daughters dies without issues, her share would devolve upon the other two daughters and their issues after her lifetime. Therefore, by virtue of the recitals contained in the deed, a new right is created in favour of the married daughters. As already seen, a married daughter, if not a destitute, is not entitled to claim as of right the maintenance as there is no pre-existing right of maintenance against her father or his properties and the father is equally under no legal or moral obligation to maintain his married daughters if she is not a destitute. In other words, a new right was created in favour of the appellant in the deed of settlement and the settlor has also imposed certain restrictions in the matter of enjoyment of the property and the properties were not given to the appellant in recognition of any pre-existing right of maintenance of married daughters which they possessed against the property. Since the instrument in question has conferred a new right, title or interest on the married daughter, her rights to the properties would fall within the scope of Section 14(2) of the Hindu Succession Act. In my view, the grant was not in recognition or implementation of the pre-existing right to claim maintenance and so, the case would fall within the purview of Section 14(2) of the Act and not under Section 14(1) of the Hindu Succession Act.
27. Mr. V. Narayanasamy, learned Counsel submitted that the father settled the property for maintenance of his married daughters and when he executed the settlement deed, it must be taken that he has created the right in view of his moral obligation to maintain the married daughters. I am unable to accept the submission of the learned Counsel for the appellant. The document was executed in the year 1926 and at that point of time, the appellant was aged 8 years and it cannot be presumed that on the date of settlement the settlor had envisaged or foreseen or visualised that his daughter would become destitute after her marriage. It cannot also be postulated or presumed that the settlor was having some fore-thought that his future son-in-law would not be able to provide for his daughter towards her maintenance.
28. The decision of this Court in Kamala Bai Amma’s case, (1998)2 L. W. 452, on which great reliance was placed by the learned Counsel for the appellant is also not helpful to him as on the facts of that case, it was found that the recitals in the deed were found to be sufficient to indicate that the settlement was made after the daughter become a destitute widow and therefore, this Court held that the recitals made therein that she was destitute would be sufficient. But, on the facts of the case, the recitals would not be sufficient as it is not a settlement made by the settlor in favour of his destitute married daughters. Hence, I am unable to accept the submissions of the learned Counsel for the appellant that the appellant had come vestige of right in that property and therefore her possession would enlarge into an absolute right under Section 14(1) of the Hindu Succession Act. As held by Apex Court, the mere possession of the property on the date of enactment of Hindu Succession Act would not be sufficient. The possession must be referable to some vestige of title or pre-existing right. Hence, the appellant was in possession of the property only by virtue of the new right created in her favour, though it was given for maintenance, her right would not transform into absolute right, as the deed has imposed restrictions on the enjoyment of the property.
29. I am also not able to accept the contention of the learned Counsel for the appellants that the defendant/appellant continued to be in possession of the property in continuation of her old right of maintenance prior to marriage. The document in question, in my opinion, has created two different rights in favour of the appellant. The nature, content and quality of the rights, one before and one after the marriage are different and distinct, and in the former case, i.e., the right of maintenance given to a daughter prior to marriage is not the same right which is conferred, in a daughter after marriage. In my view, the right of maintenance after marriage is a new and distinct and there is no pre-existing right of maintenance for a married daughter against the family property or the separate property of her father. Since both the rights are distinct and separate, it cannot be held that the settlee continued to enjoy the same right after her marriage also. No doubt, it is open to the settlor to create in the same document two distinct and separate rights and the instant case is a typical example of creation of two separate rights in the same document and in view of the creation of two separate rights in the same document, it cannot be assumed that the right which existed prior to the marriage continued after her marriage. In my view, the decision of the Supreme Court in the case of Thota Sesharatnamma and Anr. v. Thota Manikvamma (dead) by L.Rs. and Ors. (1992)1 L.W. 601, which is a case of bequest in favour of the daughter would squarely apply to the facts of the case. The restricted right given in favour of the daughter would not enlarge under the provisions of Section 14(1) of the Act, and the case would squarely fall within the provisions of Section 14(2) of the Act. The first appellate court, in my view, was right in holding that the right of the appellant would not enlarge under Section 14(1) of the Hindu Succession Act. The plaintiff is entitled to the declaration as prayed for.
30. In so far as the relief of injunction is concerned, under the document the appellant was given a right to enjoy the property without alienating or creating any encumbrance over the property and hence, it is not open to the plaintiff to pray for an injunction restricting her right of enjoyment given under the document, but if any alienation or encumbrance is made by the appellant, it is made clear, it would not ensure beyond the life time of the appellant. Subject to the above, the second appeal filed by the defendant/appellant is liable to be dismissed and accordingly, it is dismissed. However, in the circumstances of the case, there will be no order as to costs.