JUDGMENT
Alagiriswami, J.
1. The plaintiff in the suit
is the appellant. The suit related to a
portion of a house. The house originally
belonged to one Venkatarajalu Naidu and
his son Manayala Naidu. Manavala Naidu
predeceased his father leaving his widow
Lakshmikanthammal. Venkatarayalu
Naidu died on 7-11-1934, leaving behind
him his widow Rajammal and daughter
Kuppammal, Rajammal died in 1938.
The appellant is the son of Kuppammal.
Lakshmikanthammal filed O.S. 1344 of
1940 against Kuppammal for her
maintenance and other reliefs. The
suit was compromised and a compromise decree was passed under which
Lakshmikanthammal was given the right
to enjoy the suit property during her
lifetime in lieu of maintenance and resi
dence. Pariiathammal her daughter the
first defendant was given the right to
reside in the property till her marriage.
Lakshmikanthammal subsequently died
and Pariiathammal continues to reside in
the suit proprety and collect rents. The
suit was, therefore, filed for declaration
of the appellant’s title and recovery of
possession. Both the Courts below have
held against the appellant.
2. The question for decision is, whether the property got under the compromise decree by Lakshmikanthammal falls Wider Section 14(1) or 14(2) of the Hindu Succession Act. The lower appellate Court referred to the decision in Sasadhar Chandra v. Tarasundari, , wherein it was pointed out that a property is said to be acquired when, prior to the acquisition, the person acquiring it had no interest in the property and even in the case of a decree, if prior to the date of the decree, the Hindu female had title and all that the decree did was to declare the title of the female Hindu in the suit property, the female Hindu cannot be said to have acquired the property under the decree and her right was merely declared but where the acquisition made was in respect of the property in which the person had no interest previously Sub-section (2) of Section 14 would apply. The lower appellate Court realised that strictly speaking Lakshmi-kanthammal cannot be said to have had a title to the property before the decree. But it thought that because she had a right to maintenance from the profits of the property, that amounted to a right in the property and on that basis held that Section 14(2) of the Act did not apply, but only Section 14(1) of the Act. I may straightway refer to the decision in Santhanam v. Subramania. ILR (1967) 1 Mad 68, where it was pointed out that the contention that where a female Hindu was given property in lieu of maintenance, it was merely declaratory of her pre-existing right cannot be accepted and that the right to maintenance could in no sense be described as a right to or in the property. It was further pointed out that the pre-existing right was not to the property obtained under the compromise decree, but only to a right to maintenance and the two rights were not identical and hence when in lieu of maintenance some of the properties of the joint family were obtained, it was a new acquisition, though in consideration of the right to maintenance.
3. In Sampath Kumari v. Lakshmiammal, a Bench of this Court held that the word acquired in Sub-section (2) meant acquired for the first time. In Rangaswami v. Chinnamrnal. another Bench of this Court took the view that a decree, which is merely declaratory of a preexisting right, is not within the purview of Sub-section (2). Jagadisan, J. in Guruswami Naicker v. Guruswami Naicker, S. A. No. 470 of 1961 (Mad) was also of the same view. He held that the word “acquired” in Sub-section (2) indicated that it had a restricted meaning and that a property could be said to be acquired when prior to the acquisition, the person acquiring it had no interest in the property. In Kaliammal v. Andiammal, , one Kaliappa Gounder died leaving behind him his widow,
his daughter, his mother, step-mother, his sister and his sister’s son and he had given directions to his wife to divide his properties and in pursuance of such direction a partition arrangement was arrived at, in and by which certain properties were allotted to the widow and her daughter and it stated that the widow would get only a life estate and after her life-time, it was to go to her daughter. Venkatadri J. pointed out that even without this partition deed, the first defendant could have inherited the properties of her husband on his death and, therefore, it is very difficult to say that she got the properties under the partition deed, that she should be deemed to have inherited the properties on the death of her husband and after the passing of the Act, she became the absolute owner of the properties. The ratio of this decision is that where a female Hindu had already a right in certain properties a subsequent document or instrument which merely recognises or states the effect of such right, would not bring it under Section 14(2). In Gurunatha Chetti v. Navaneethamma. , Natesan J. held that for Sub-section (2) to apply, it is an essential condition that the instrument which limits or restricts the estate should itself be the source or foundation of the female’s title in the property: that if she has an existing right in the property, the interposition of an instrument will not affect the operation of Sub-clause (1) on the property, that if the instrument, be it a decree or order or award, or deed of partition, merely declares the pre-existing title of the Hindu woman to any particular property, Sub-section (2) would not take the property out of the coverage of Sub-section (1), and that where a female Hindu takes the property under an instrument of the kind specified in Sub-section (2) and not by virtue of any antecedent legal right or title in the property, any restriction placed on the property would have its full effect. I have also taken a similar view in Dharma Udavar v. Ramachandra Mudaliar. (1968) 81 Mad LW 399. The purport of these decisions is that where an instrument merely declares the pre-existing title of a Hindu female, Sub-section (2) would not apply; but where the instrument is the origin of the title and not merely one which declares or recognises an antecedent title, Sub-section (1) would apply.
4. I do not think that the decision in Gadam v. Venkataralu, , really holds anything to the contrary. In that case, a clause in the maintenance deed executed by an adoptive son in favour of his adoptive mother was as follows:
“Chellamma during her lifetime, can raise the crops and shall enjoy the fruits and she cannot contract any debts on the security of the said lands,”
It was held that the document evidenced a family settlement, in that, the differences between the parties were resolved and the pre-existng rights of each other recognised that as such, it was not a new right that was conferred upon the widow under the document and therefore. Section 14(1) applied. Certain observations found in that decision to the effect that the adoptive mother had a right to be maintained by the adopted son out of the estate and it is pursuant to that right that her claim to maintenance was settled, cannot be held to show that the Bench was of the view that even where the only rights that a Hindu female had, was a right to maintenance, that amounted to a pre-existing right in the property. The later portion of the judgment, where the Bench points out that differences between the parties were resolved and the pre-existing rights of each other, recognised and it was not a new right that was conferred upon the widow under the document, clearly shows that the basis of the decision was that the document merely recognised a pre-existing right. The decision of a learned single Judge of the Andhra Pradesh High Court in Chinnakada v. Subbamma. (1968) 3 Andh WR 65 that where the widow of a Hindu coparcener got certain properties with a life estate in lieu of her maintenance, Section 14(1) applies and not Section 14(2), cannot be said to lay down the law correctly. The maintenance deed in that case was dated 6-7-1928. It was not a case to which the provisions of the Hindu Women’s Rights to Property Act, 1937, applied. If that Act had applied, the widow would have been entitled to have her husband’s share divided and allotted to hex to be enjoyed for life. In such a case, it could be said that when a compromise deed or a compromise decree allots the husband’s share for the maintenance of the widow it merely recognised the preexisting right of hers under the Hindu Women’s Rights to Property Act J937 and that the document or the decree was not the source of her right. It was on that basis that Natesan J. came to the conclusion that the estate obtained by the widow in the case before him was governed by Section 14(2) and not Section 14(1) because the 1937 Act did not apply. The present case is also one where Lakshmi-kantammal did not have any rights under the Hindu Women’s Rights to Property Act 1937, and it cannot, therefore, be said that the compromise under which she got a half share of the property for life was one merely recognising her pre-existing right The compromise decree Itself was the source of her claim to the property and, therefore, effect would have to be given to the terms of the compro
ise decree under Section 14(2) of the Act It follows, therefore, that the Courts below were in error in holding that Section 14(1) of the Act applies to the facts of this case.
5. The second appeal is allowed and the suit will stand decreed. The appellant will get his costs in all the three Courts from the first respondent. Leave granted.
