IN THE HIGH COURT OF KERALA AT ERNAKULAM
AFA No. 17 of 2002()
1. M.P.LATHIKA, WIDOW OF V.K.RAJEEVAN,
... Petitioner
2. V.K.DHANYA, D/O. V.K.RAJEEVAN,
3. V.K.DHANRAJ, S/O. V.K.RAJEEVAN,
Vs
1. JAYASREE SIVANAND,
... Respondent
2. LATHIKA CHANDRAMOHAN,
3. RANGEETHA RAJESH, RAGAM,
4. V.MURALEEDHARAN, KRISHNA,
5. DR.JITHENDRA KUMAR, KRISHNA,
6. NARESH KUMAR, KRISHNA,
7. VALSALA BALAN,
8. V.K.YADHUNADHAN, AMARAPURI,
9. V.K.JEEVARAJ, AMARAPURI,
10. DAYAVATHI, M.A. COTTAGE,
11. V.K.HAMZA, W/O. ACHUTHAN,
12. V.K.AJITHA, KOMMADATH HOUSE,
13. V.K.SARALA,
14. BABY, WIDOW OF VELLACHLANKANDY BHASKARAN
15. VINEETHA SIVANANDAN, AMARAPURI,
16. JYOTHI SURESH, AMARAPURI,
For Petitioner :SRI.V.V.ASOKAN
For Respondent :SRI.P.G.PARAMESWARA PANICKER (SR.)
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice K.T.SANKARAN
Dated :16/11/2007
O R D E R
P.R.RAMAN & K.T.SANKARAN,JJ.
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A.F.A. NO. 17 OF 2002
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Dated this the 16th November, 2007
JUDGMENT
SANKARAN, J.
The question of law involved in this appeal is whether the donee to
whom immovable property was gifted along with her three sons, with a
condition that she would have a life estate, is entitled to claim the protection
under Section 14(1) of the Hindu Succession Act; or whether it would come
under Section 14(2) of the said Act.
2. The AFA arises out of a suit for partition in respect of eleven
items of immovable properties. The appellants herein are the legal
representatives of defendant No.6. The plaintiff and defendants 1 and 2
are the children of Kumaran Vaidyar and Janaki. Defendants 5 to 9 are the
legal representatives of the first defendant. Defendants 3 and 4 are the
legal representatives of the second defendant. Kumaran Vaidyar died on
8.8.1967 and his widow Janaki died on 6.8.1991. Item Nos.1 and 2
admittedly belonged to Kumaran Vaidyar. In this appeal, we are concerned
with only item Nos.1 and 2. Item Nos.3 to 8 belonged to Janaki, the mother
of the plaintiff and defendants 1 and 2. Item Nos.9 to 11 belonged to
Kumaran Vaidyar. Plaintiff claimed a one-third share in the plaint schedule
properties. The trial court passed a preliminary decree for partition in
respect of item Nos.9 to 11. On appeal by the plaintiff, a learned single
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Judge of this Court in modification of the preliminary decree passed by the
court below passed a decree granting one-third share to the plaintiff in item
Nos.1, 2 and 9 to 11.
3. Item Nos.1 and 2 and another item of immovable property were
gifted by Kumaran Vaidyar as per Ext.A1 gift deed, dated 28.4.1961.
According to the plaintiff, the gift was in favour of Janaki and her children
together, with a life estate in favour of Janaki in respect of item Nos.1 and 2
in the gift deed (which are item Nos.1 and 2 in the plaint schedule).
According to the contesting defendants, item Nos.1 and 2 were gifted by
Kumaran Vaidyar to Janaki and item No.3 in the gift deed was gifted in
favour of the plaintiff and defendants 1 and 2. The defendants contended
that Janaki had absolute title over item Nos.1 and 2 and that there was no
creation of a life estate in her favour.
4. In respect of item No.3, there was an earlier suit for partition as
O.S.No.82 of 1980, filed by the present plaintiff. The defendants therein,
who are defendants 1 and 2 in the present suit, set up an oral partition as a
defence. That contention was not accepted and the suit was decreed by
the trial court, which was confirmed by this Court in Ext.A4 judgment, dated
24.1.1990. In Ext.A4 judgment, the High Court found that as per the gift
deed, dated 21.4.1961, three items of immovable properties were gifted by
Kumaran Vaidyar in favour of his wife Janaki and their three children. It
A.F.A. NO.17 OF 2002
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was also found that in respect of item Nos.1 and 2 in the gift deed, a life
interest was granted to Janaki.
5. In the appeal against the preliminary decree in the present suit,
namely, O.S.No.20 of 1990, the learned single Judge held that Janaki did
not get any absolute right over item Nos.1 and 2 as per Ext.A1 gift deed
and she had only a life estate. The learned single Judge also took note of
the appellate judgment in respect of O.S.No.82 of 1980 (Ext.A4) and it was
held that even assuming that Ext.A4 would not operate as res judicata, it
would operate as a judicial precedent.
6. The contesting defendants had put forward a contention that
there was an oral partition among the parties. They also put forward a
contention that Janaki had executed a registered Will dated 13th July, 1979
(Ext.B1). As per the Will, the plaint item Nos.3 and 4 came to vest in the
first defendant and items Nos.5 and 6, in the second defendant. It was also
contended that item Nos.7 and 8 were bequeathed by Janaki in favour of
defendants 3 and 4. The trial court found that the case of oral partition set
up by the defendants is not true. Ext.B1 Will was found to be genuine by
the trial court. On appeal, the learned single Judge confirmed the finding of
the trial court as regards Ext.B1 Will. It was also held that item Nos.1 and 2
are partible.
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7. Sri.Mayankutty Mather, learned counsel for the appellants, put
forward two contentions. They are the following: (1) As per Ext.A1 gift
deed, an absolute estate was created in favour of Janaki and, therefore,
item Nos.1 and 2 are not parible, as she had disposed of her rights therein
under Ext.B1 Will, and (2) Even if the first contention is not accepted, it
could certainly be found that the properties were gifted to Janaki under
Ext.A1 in lieu of maintenance and, therefore, Section 14(1) of the Hindu
Succession Act would apply.
8. Sri.P.G.Parameswara Panicker, learned senior counsel
appearing for the first respondent/plaintiff contended that on a proper
interpretation of Ext.A1, the finding of the learned single Judge that only a
life estate was created in favour of Janaki, could be sustained. He
submitted that Section 14(1) of the Hindu Succession Act does not apply at
all as there was no pleading that item Nos.1 and 2 were allotted to Janaki in
lieu of maintenance and that this contention is put forward for the first time
in this appeal. He also submitted that Section 14(1) would not apply at all
and Section 14(2) would clearly apply in the case.
9. We shall consider the points referred to above together.
10. On a careful consideration of the recitals in Ext.A1, we are of the
view that no absolute estate is created in favour of Janaki. She was given
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a right to possess and enjoy item Nos.1 and 2 during her life time.
Therefore, Janaki could not have disposed of by way of Will, the title in
respect of item Nos.1 and 2. As held by the learned single Judge, the
intention of the donor was also to confer a life interest in favour of Janaki.
We agree with the reasoning and conclusion made by the learned single
Judge on this point.
11. There is no case for the defendants in their pleadings that item
Nos.1 and 2 were allotted to Janaki in lieu of maintenance and, therefore,
Section 14(1) of the Hindu Succession Act, 1956 would apply. No such
contention was put forward by the defendants before the learned single
Judge as well.
12. For the sake of convenience, Section 14 of the Hindu
Succession Act is extracted below:
“14. Property of a female Hindu to be her absolute
property:– (1) Any property possessed by a female Hindu,
whether acquired before or after the commencement of this
Act, shall be held by her as full owner thereof and not as a
limited owner.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 whatsoever, and also any
such property held by her as Stridhana immediately beforeA.F.A. NO.17 OF 2002
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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 prescribe a restricted
estate in such property.”13. Sri.Mayankutty Mather relied on the decisions reported in
Vaddeboyina Tulasamma and others v. Vaddeboyina Sesha Reddi (AIR
1977 SC 1944 = (1977) 3 SCC 99), Shakuntla Devi v. Kamla and others
(2005) 5 SCC 390, Jose v. Ramakrishnan Nair (2003(3) KLT 999),
Balwant Kaur and another v. Chanan Singh and others ((2000) 6 SCC
310), Pachu v. Chirutha (2003 (1) KLT 241) and (1978 Madras 21).
14. Sri.P.G.Parameswara Panicker relied on the decisions reported
in Gumpha and others v. Jaibai ((1994) 2 SCC 511), F.M.Devaru
Ganapathi Bhat v. Prabhakar Ganapathi Bhat ((2004) 2 SCC 504) and
Kunji Thomman and others v. Meenakshi and others (AIR 1970 Kerala
284).
15. In Vaddeboyina Tulasamma and others v. Vaddeboyina
Sesha Reddi (AIR 1977 SC 1944 = (1977) 3 SCC 99), the Honourable
Supreme Court considered the scope and ambit of Section 14 of the Hindu
Succession Act. In that case, a Hindu widow claimed maintenance out of
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the joint family properties of her deceased husband in the hands of his
brother. The suit was decreed in favour of the widow. In execution of the
decree, a compromise was arrived at between the parties and properties
were allotted to the widow for her maintenance. She was granted limited
interest in such properties and the allotment was in lieu of maintenance. As
per the terms of the compromise, on the death of the widow the properties
were to revert to the plaintiff in the subsequent suit. The widow leased out
certain items and sold certain other items. The reversioner filed the suit for
a declaration that the alienations made by the widow were not binding on
the plaintiff. The Supreme Court held as follows:
“.. It will, therefore, be seen that sub-sec.(1) of Section
14 is large in its amplitude and covers every kind of
acquisition of property by a female Hindu including acquisition
in lieu of maintenance and where such property was
possessed by her at the date of commencement of the Act or
was subsequently acquired and possessed, she would
become the full owner of the property.”The Supreme Court also held that Section 14(2) is more in the nature of a
proviso or exception to sub-section (1). It was further held thus:
“Sub-section (2) must, therefore, be read in the context
of sub-section (1) so as to leave as large a scope for
operation as possible to sub-section (1) and so read, it must
be confined to cases where property is acquired by a female
Hindu for the first time as a grant without any pre-existing
right, under a gift, will, instrument, decree, order or award, the
terms of which prescribe a restricted estate in the property.
This constructional approach finds support in the decision in
Badri Prasad’s case (supra) where this Court observed that
sub-section (2) “can come into operation only if acquisition in
any of the methods enacted therein is made for the first time
without there being any pre-existing right in the female Hindu
who is in possession of the property”.”A.F.A. NO.17 OF 2002
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The Supreme Court also considered the Hindu Succession Bill, 1954 and
the inclusion of gift and Will in Section 14(2) of the Act, which was not
available in the Bill. Taking note of this, the Supreme Court further held:
“.. This circumstance would also seem to indicate that
the legislative intendment was that sub-section (2) should be
applicable, only to cases where acquisition of property is
made by a Hindu female for the first time without any pre-
existing right – a kind of acquisition akin to one under gift or
will. Where, however, property is acquired by a Hindu female
at a partition or in lieu of right of maintenance, it is in virtue of
a pre-existing right and such an acquisition would not be
within the scope and ambit of sub-section (2), even if the
instrument, decree, order or award allotting the property
prescribes a restricted estate in the property.”16. In Tulasamma’s case the Supreme Court also held as follows:
“But where property is acquired by a Hindu female
under an instrument for the first time without any pre-existing
right solely by virtue of the instrument, she must hold it on the
terms on which it is given to her and if what is given to her is a
restricted estate, it would not be enlarged by reason of sub-section (2). ….. It is, therefore, clear that under 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 on 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 joint 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 documentA.F.A. NO.17 OF 2002
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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.”In Tulasamma’s case, Justice Fazal Ali in His Lordship’s separate
judgment summarized the legal conclusions at paragraph 70 in AIR
(paragraph 62 in SCC). Sub-paragraphs (3) and (4) therein are as follows:
“(3) Sub-section (2) of S.14 is in the nature of a proviso
and has a field of its own without interfering with the operation
of S.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 S.14(1) or in a way so as to become
totally inconsistent with the main provision.(4) Sub-section (2) of S.14 applies to instruments,
decrees, awards, gifts etc. which create independent and new
titles in favour of the 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 sub-s.(2) and would be governed by
Section 14(1) despite any restrictions placed on the powers of
the transferee.”17. In Shakuntla Devi v. Kamla and others (2005) 5 SCC 390 and
Balwant Kaur and another v. Chanan Singh and others (2000) 6 SCC
310, the Supreme Court followed the decision in Tulsamma’s case. In
A.F.A. NO.17 OF 2002
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Balwant Kaur’s case the recitals in a Will in favour of the widowed
daughter of the testator making provision for maintenance by allotting
properties were under consideration. It was stipulated that after the death
of the widowed daughter the properties would revert to the testator’s
brothers or their legal heirs. The Supreme Court held that the widowed
daughter had a right under the Hindu Adoptions and Maintenance Act,
1956 to claim maintenance from her father and therefore, the allotment
under the Will was in recognition of a pre-existing right in the widowed
daughter. It was held that Section 14(1) of the Hindu Succession Act would
apply. The Supreme Court held as follows:
“It is easy to visualise that if the testator had created a
life interest to the extent of 1/3rd of his property in favour of his
maidservant or a female cook who might have served him
during his lifetime, then such female legatees could not have
claimed benefit of Section 14(1) and their claim would have
been confined only to Section 14(2) as they would not have
any pre-existing legal right of maintenance or dependency
qua the estate of the deceased employer but Appellant 1, as
a destitute widowed daughter of the testator, stands on
entirely a different footing. The Will in her favour does not
create for the first time any such right as might have been
created in favour of a maidservant or a cook. In fact, the Will
itself recognises her pre-existing right in express terms and
provides that even after his death, his other legatee brothers
have to look after the welfare of his widowed daughter. Under
these circumstances, Section 14(1) can legitimately be
pressed into service by the learned Senior Counsel for the
appellants on the basis of legal right flowing to her under the
relevant provisions of the Maintenance Act. Once that
conclusion is reached, the result becomes obvious.”18. In C.Masilamani Mudaliar and others v. The Idol of
A.F.A. NO.17 OF 2002
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Sri.Swaminathaswami Swaminathaswami Thirukoli and others (AIR
1996 SC 1697), the question considered was whether an alienation made
by a widow to whom properties were bequeathed so as to provide
maintenance was legal or not. It was held by the Supreme Court that
Section 14(1) of the Hindu Succession Act would apply and that Section 14
(2) would not apply. To quote:
“28. The legatee Sellathachi had right to maintenance
under the Hindu Adoption and Maintenance Act when the
property was given to her for maintenance. It must be in lieu
of her pre-existing right to maintenance and the property
given under the will, therefore, must be construed to have
been acquired by the legatee under the will in lieu of her right
to maintenance. That right to maintenance to a Hindu
female received statutory recognition under the Hindu
Adoption and Maintenance Act, 1956. She is entitled to
realise maintenance from property of her husband and even
in the hands of strangers except the bona fide purchasers for
value whether notice of her right she is equally entitled under
Section 37 of the Transfer of Property Act to have charge
created over the property for realisation of her maintenance.
On the demise of the testator, she being the class – I heir but
for the bequeath, is entitled to succeed as an absolute owner.
In either of those circumstances, the question emerges
whether she acquires a limited right under Section 14(2) for
the first time under the will. In the light of the facts and
circumstances of the case and the legal setting, we are of the
considered view that she having had under Sastric law, as
envisaged in the will, the properties in recognition of her pre-
existing right to maintenance, it is not a right acquired for the
first time under the instrument will, but it is a reflection of the
pre-existing right under the Sastric law, which was blossomed
into an absolute ownership after 1956 under Section 14(1) of
the Act.”19 In Gumpha and others v. Jaibai ((1994) 2 SCC 511), the last
male holder in the family, who had two wives, executed a Will in favour of
A.F.A. NO.17 OF 2002
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his wives for life and after their lives, to the only daughter. One of the
widows executed a Will in favour of a stranger. The question was whether
the widow could validly execute a Will and whether she had only a limited
estate. The Supreme Court held that the widow had only a limited estate
and Section 14(2) of the Act would apply. It was held thus:
“… That the legislature was aware of the unrestricted
power of a Hindu to dispose of his property in any manner he
considered proper subject to such restrictions as were
operating in different schools is clear from sub-section (2) of
Section 14. It does not curtail or erode the absolute estate
which comes into operation by law but excludes from it
specifically the property acquired in the manner mentioned
therein. That is if any property is acquired by a female Hindu
as provided in sub-section (2) then it would be beyond the
purview of sub-section (1). Reason for it was that the
legislature never intended to confer larger estate on females
than on males. If a Hindu could bequeath his property of
which he was capable of and could create life interest or
restricted estate for a male it would have been incongruous to
create an absolute estate in favour of female. Sub-section (2)
of Section 14 was read as proviso or exception to sub-section
(1) so that it may impinge as little as possible on the broad
sweep of the ameliorative provision contained in sub-section
(1). In Tulasamma it was observed that, ‘it cannot be
construed in a manner which would rob sub-section of its
efficacy and deprive a Hindu female of the protection sought
to be given to her by sub-section (1)’. True it is an exception
to sub-section (1) and should be read in such a manner as
not to rob sub-section (1), ‘of that modicum of certainty which
it must always possess’. Yet the field of operation of the two
sub-sections is independent and separate. The legislature
while obliterating the dark side of Hindu Law could not have
intended to encroach upon right which existed under
customary law and which it widened by adding explanation to
Section 30.………. The legislature as explained earlier was aware
of absolute power of a Hindu to bequeath his property. But
this right did not exist in joint family property or in various
other properties under customary law. That has now beenA.F.A. NO.17 OF 2002
:: 13 ::
specifically recognised by Section 30. A Hindu can bequeath
his interest even in joint Hindu property. But what is its effect
on the right of his widow if the testator gives only right of
maintenance. Can it be said to be in lieu of maintenance?
The answer is simple. The legislature then would have used
the words, ‘for maintenance’ and not instead of ‘or in lieu of
maintenance’. That could not have been the purpose. Under
the Act, a female unlike customary law is an heir. She
inherits the property in her own right. The expression ‘in lieu
of maintenance’ or ‘arrears of maintenance’ would thus
become inapplicable. Apart from it a right of maintenance
under a will after 1956 would fall under sub-section (2) as
even on ratio in Tulasamma it would be creation of right for
the first time and not in recognition of pre-existing right. Even
the expression in any manner whatsoever cannot be of any
help for deciding the right and interest of a female Hindu
acquired under a will. The expression is no doubt very wide
but its width cannot be extended to those acquisitions which
are specifically dealt with by sub-section (2). Its operation
has to be confined to such an acquisition which is not covered
by sub-section (2) or any of the clauses of the explanation. It
is true that the explanation is not exhaustive as is clear from
the use of the word ‘includes’ but its ambit cannot be
stretched so as to nullify the effect of sub-section (2). A
reading of the two sub-sections together indicates that even
though the law was revolutionized and a female Hindu was
made an absolute owner in respect of any property acquired
by her either before or after the date of enforcement of the
Act yet the law did not intend to confer a higher and better
right than what was enjoyed by a male Hindu. ……
Consequently if a female Hindu acquires possession after the
enforcement of the Succession Act and that possession was
traceable to an instrument or a document described in sub-
section (2) then she could not get higher right than what is
stipulated in the document itself…”20. In the case on hand, Ext.A1 gift deed was executed in 1961,
much after the commencement of the Hindu Succession Act. The rights
which a widow had under the pristine Hindu Law gave way to a larger right
to a widow under the Hindu Succession Act and she became a class-I heir.
A.F.A. NO.17 OF 2002
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The widow would inherit the estate of a male Hindu dying intestate, as
provided in Section 8 of the Hindu Succession Act. It is true that a Hindu
wife is entitled to get maintenance from her husband under Section 18 of
the Hindu Adoptions and Maintenance Act, 1956. But, such right is to be
enforced under law and the property of the husband made a charge.
Without an order of court or a stipulation in the deed or any other binding
instrument, the property of a male Hindu would not automatically become
subject of a charge for the maintenance payable to the wife at a future point
of time. The properties in question were not gifted in lieu of maintenance or
arrears of maintenance. There is no pleading or proof to that effect.
Ext.A1 gift deed also does not indicate that it was executed in lieu of
maintenance or arrears of maintenance. It is the admitted case of the
parties that item Nos.3 to 8 of the plaint schedule belonged to Janaki, the
donee under Ext.A1. Ext.B1 Will executed by her shows that those items
were acquired by her in 1955, 1956 and 1957. This would indicate that she
had her own properties at the time when her husband executed Ext.A1 gift
deed. It is also relevant in this context that the properties gifted under
Ext.A1 were the self acquired properties of the donor. He had absolute
control and right of alienation over those properties. In such
circumstances, the restrictions on alienation by a coparcener of the joint
family property, under the pristine Hindu Law would not be applicable in the
case of the property covered by Ext.A1 gift deed. That the gift deed was
executed after the commencement of the Hindu Succession Act is also a
A.F.A. NO.17 OF 2002
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relevant factor in construing the impact of the restrictions provided in the
gift deed. In the light of the principles laid down by the Supreme Court as
referred to above, we are of the view that Ext.A1 gift deed conferred only
limited estate on Janaki which was not capable maturing into an absolute
right under Section 14(1) but which was covered by Section 14(2) of the
Hindu Succession Act.
21. The intention of the donor was also clear from the recitals in
Ext.A1. The donor only intended to confer a limited estate to his wife, one
of the donees. “The rule of construction is well settled that the intention of
the executor of a document is to be ascertained after considering all the
words in their ordinary natural sense. The document is required to be read
as a whole to ascertain the intention of the executant. It is also necessary
to take into account the circumstances under which any particular words
may have been used.” (Vide (2004) 2 SCC 504) F.M.Devaru Ganapathi
Bhat v. Prabhakar Ganapathi Bhat).
22. We have noticed earlier that the defendants have not pleaded in
their pleadings that item Nos.1 and 2 of the plaint schedule were gifted in
favour of Janaki in lieu of maintenance. There is no evidence also touching
on that point. The facts and circumstances would indicate that Janaki had
other self acquired properties of her own which were disposed of by her
A.F.A. NO.17 OF 2002
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under Ext.B1 Will in the year 1979.
23. In Kunji Thomman and others v. Meenakshi and others (AIR
1970 Kerala 284), dealing with Section 14(1) of the Hindu Succession Act,
a Division Bench of this Court had occasion to consider the importance of
pleadings. It was held thus:
“.. This obviously means that she is unable by herself
to maintain her and she has necessarily to depend upon the
father-in-law for her maintenance. This does not mean that
the daughter-in-law should be penniless. Inadequacy of her
own assets to maintain herself is quite sufficient to make her
a dependent of the father-in-law. But if a daughter-in-law has
got properties from out of which she could have maintained
herself very comfortably we do not think it right to hold that
still there would be a moral obligation on the part of the
father-in-law. In the absence of any moral obligation, no legal
obligation against the heirs inheriting the estate can arise.
Because of the absence of pleading the plaintiff was unable
to meet the case now pleaded which is essentially a question
of fact. We therefore hold that the plea of the appellants
cannot be entertained in this Court. If so the argument based
on Section 14(1) of the Hindu Succession Act need not be
considered.”24. We note here that the decision cited by the learned counsel for
the petitioner in Pachu v. Chirutha (2003 (1) KLT 241), does not apply
to the fact situation in the case. In Pachu’s case, there was a clear
admission in the written statement recognizing the right of maintenance of
the person concerned out of the joint properties.
25. Sri.M.C.Ratnakaran, learned counsel appearing for respondents
A.F.A. NO.17 OF 2002
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15 and 16 contended that the learned single Judge has found that the first
defendant was in possession of item Nos.1 and 2 and, therefore, the
successors of second defendant should not be made liable to pay the
mesne profits. He pointed out that in the last paragraph of the judgment of
the learned single Judge, it is mentioned that the second defendant and
supplemental defendants 5 to 9 are liable to pay the share of mesne profits
to the plaintiff. Learned counsel appearing for the plaintiff submitted that
the submission made by Sri.Ratnakaran is correct. Accordingly, we hold
that the legal representatives of the first defendant are liable to pay mesne
profits to the plaintiff in respect of item Nos.1 and 2.
For the aforesaid reasons, we are of the view that A.F.A lacks merits
and it is liable to be dismissed. Accordingly, the A.F.A is dismissed.
However, it is made clear that the legal representatives of the first
defendant alone shall be made liable to pay mesne profits to the plaintiff in
respect of item Nos.1 and 2. No order as to costs.
(P.R.RAMAN)
Judge(K.T.SANKARAN)
Judge
ahz/P.R.RAMAN &
K.T.SANKARAN, JJ.———————————————
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A.F.A.NO. 17 OF 2002
JUDGMENT
16th November, 2007
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