JUDGMENT

Maharajan J.

1. This Letters Patent Appeal which is directed against the second appellate judgment of V. Ramaswami, J. arises under the following circumstances: Survey No. 60/1, which is the subject matter of this appeat, and certain other properties originally belonged to two brothers, Visvanatha Chettiar and Palaniandi Chettiar. Viswanatba Chettiar died on 18th February 1918. Sometime before his death, he executed a partition deed and a will whereby he bequeathed the suit property and other properties to his wife, Gomathiammal. After his death, disputes arose between Gomathiammal and Palaniandi Chettiar. Thereupon, Gomathiammal instituted two suits in the District Munsif Court, Tirunelveli for enforcement of the partition deed and the will and for direction to register the same. On 6th November 1920 under Ex. A.1, both the suits were compromised by the parties, and a decree was granted in terms thereof. Under the terms of the decree, Gomathiammal was to enjoy the suit property and certain other properties for life and after her death, these properties were to go to Palaniandi Chettiar and his heirs. One Velayutham Pillai and Ramiah Pillai obtained a decree against Palaniandi Chettiar in S.C 564 of 1934 and in execution thereof brought to sale the vested remainder that Palaniandi Chettiar had in the suit property, purchased the same and obtained symbolic delivery of possession. The plaintiff purchased this right from the court auction purchasers on 29th November 1954. Gomathiammal herself died on 8th August 1964. According to the plaintiff, on her death, he as the holder of the vested remainder, became entitled to the suit property. The plaintiff's case was that by some arrangement with Gomathiammal, the father of defendants 1 to 12 got possession of item 1 (S. No. 60/1) and was in enjoyment of the same till his death, and after his death, his heirs (defendants 1 to 12) have been in possession of item 1. Defendants 1 to 12, when called upon by the plaintiffs to surrender possession, refused to do so. Consequently, the plaintiff filed the suit for recovery of possession.

2. Defendants 1 to 12, who were the children of Mohammed Hanifa Tharaganar, contended that as per the compromise decree, Gomathiammal was given S. No. 30/3 and S. No. 70/6, that she was in enjoyment of those items, but by mistake the survey number of item I was wrongly mentioned in, the compromise decree as S. No. 60/1 instead of as S. No. 30/3 and this mistake was reiterated in the subsequent documents. Likewise, what was sold in execution of the decree against Palani and Chettiar was also wrongly described as S. No. 60/1 and therefore, the plaintiff had, no right in respect of item 1 of the plaint schedule. These defendants also pleaded that; they had been in possession of S. No. 60/1 and that in any case they have prescribed title to the property by adverse possession.

3. The trial court held that the survey number had been wrongly given in the compromise decree as S. No. 60/1 instead of as S. No. 30/3. that Palaniandi Chettiar sold S. No. 60/1 to the predecessor-in-interest of the defendant and that, therefore, the plaintiff was dis entitled to recover possession of item I. Consequently, it dismissed the suit, of the plaintiff in respect of Item 1.

4. On appeal by the plaintiff, the Subordinate Judge, Tirunelveli, held that there was no mistake in the description of the survey number in the compromise decree or in the subsequent documents, and on this view decreed the suit as prayed for in respect of item 1 as well.

5. Against this judgment, the third defendant preferred S.A No. 215 of 1968. The learned Judge confirmed the finding of the first appellate court that there was no mistake in respect of item 1 in the compromise decree and the subsequent documents. This is a finding of fact, which is binding upon us. The learned Judge also held upon a construction of the compromise decree that Gomathiammal was given the interest in item 1 only in lieu of maintenance, and that this interest did not get enlarged under S. 14(1) of the Hindu Succession Act Consequently, the learned second appellate Judge dismissed the appeal with costs and granted leave.

6. The main question that arises for consideration is whether the interest which Gomathiammal got under Ex. A.1, the razinama decree, dated 6th November 1920, became enlarged into an absolute estate under sub-S. (I) of S. 14 of the Hindu Succession Act. 1956. The learned Judge held that at the time of the compromise, Gomathiammal had only a right to maintenance, and not any pre-existing right to the suit property, that in lieu of maintenance she was allotted the disputed property for the duration of her lifetime, that consequently, S. 14(1) of the Hindu Succession Act applied and that there could be no enlargement of her interest into an absolute estate under S. 14(1) of the Hindu Succession Act.

7. S. 14 of the Hindu Succession Act reads as follows—

“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 moveable and immoveable 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 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 before the commencement of this Act

(2) Nothing contained in sub-S. (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 droperty,”

A perusal of the section makes it clear that S. 14(1) governs all kinds of estate ‘acquired’ by a female Hindu before or after the commencement of the Act, whether by way of inheritance or device or at a partition in lieu of maintenance or arrears of maintenance, or by gift from any person or by her own skill or exertion or by purchase or by prescription or in any other manner whatsoever, or by way of stridhana immediately before the commencement of this Act. On the other hand, Sub-S. (2) of S. 14, which is in the nature of an exception to Sub S. (1) provides that nothing contained in sub-S. (1) shall apply to any property acquired by a female Hindu 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 or order or award ‘prescribe’, a restricted estate in such property. In other words, the intention of the Legislature was to remove the disability imposed on women by Hindu Law on the ground of sex, but not to interfere with the sanctity of contracts and grants, whereby only a restrictive estate had been deliberate conferred upon them Sub-S. (1) removes the restriction imposed by Hindu Law, on the ground of sex, upon the estate held by a woman and enlarges it into an absolute estate. On the other hand, Sub-S. (2) leaves intact the restriction on the estate of a woman not imposed by law on account of her sex, but prescribed by the terms of a contract or grant. Some difficulty may arise in the application of Sub-S. (2) of S. 14 to the facts of a given case. The document, instrument, decree or award may, in certain cases, of its own force, create a restricted estate in property and may in certain other cases only re-state the restricted estate which the female Hindu possessed even prior to the date of the instrument, decree or award. Before applying Sub-S. (2), the proper question to ask is, does the instrument or decree ‘prescribe’ a restricted estate in the property, or does it merely acknowledge and recognise (and not prescribe) a pre-existing estate upon which the Hindu Law had imposed a restriction, because the holder of the estate was a woman? If before the date of the deed or the decree, she had no interest in the property and her only source of title is the deed or the decree, which confers upon her restricted estate, Sub-S. (2) of S. 14 of the Act will apply, and such a restricted estate will not be enlarged into an absolute estate under Sub-S. 1 of S. 14 If, on the other hand, the course of her title is independent of the instrument or decree and she held a restricted estate even prior to the date of the instrument or the decree, and all that the instrument or decree does is merely to recognise the pre-existing restricted estate of the female Hindu, then Sub.S (1) of S. 14 would certainly operate upon that restricted estate and expand it into an absolute one. The Supreme Court in Seth Badri Prasad v. Srimati Kanso Devi† .(1), observed as follows—

“Sub-S. (3) of S. 14 is more in the nature of a proviso or an exception to Sub-S. (I). It can come 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, who is in possession of the property’.

We shall next examine, whether, on the date of Ex. A.1, Gomathi Ammal had a pre-existing title to the suit property. If she had, then the compromise decree merely regonised the estate which she had already acquired and did not create for the first time a restricted estate in the property. In order to understand what she actually got under the compromise, it is necessary to set forth a few facts: Gomathiammal was the wife of Viswanathan Chettiar, who died on 18th February 1918, leaving him surving his widow Gomathiammal and his younger brother Palaniandi Chettiar. A few days prior to his death, that is to say, on 13th February 1918, Viswanathan Chettiar executed a partition deed, whereby he purported to become divided from Palaniandi Chettiar. On the same day, he executed a will whereby he bequeathed S. No. 60/1, the property now in dispute and some other items in favour of Gomathiammal. Gomathiammal proceeded to enforce her rights under the partition and under the testament of her husband by instituting two suits, O.S 262 of 1920 and 286 of 1920 on the file of the District Munsif Court, Tirunelveli, against Palaniandi Chettiar. Palaniandi Chettiar contested both these suits. But ultimately on 6th November 1920, Gomathiammal and Palaniandi Chettiar entered into a compromise which was recorded by the court, and embodied in a decree as per Ex. A.1 The terms of the razinama decree showed that out of the several items of properties dealt with by Viswanathan Chettiar under the partition deed and the will, the first schedule property (which comprises of S. No. 60/1 and S. No. 70/6) and the second schedule property (comprising a house in Kokkarakulam) were alloted to Gomathiammal for her maintenance to be enjoyed by her for life. It was further provided that after the lifetime of Gomathiammal, Palaniandi and his heirs should become absolutely entitled to the said properties. It was also provided that Gomathiammal should not alienate the said items during her lifetime. With reference to the other properties mentioned in the partition deed and will of Viswanathan Chettiar, the compromise recites that the plaintiff relinquised the interest that she had been claiming thereunder and that Palaniandi Chettiar should enjoy the same absolutely. One important clause in the compromise deed is as follows:

“As the matter has been settled in accordance with the terms mentioned above,, it has been decided not to register the partition deed and the will propounded by Gomathiammal.”

It may be noted that in the suits filed by Gomathiammal, one of the prayers was that these deeds should be directed to be registered. In view of the compromise, however, it was decided that this relief need not be granted. It is significant that neither the partition deed nor the will Was characterised in the partition deed as spurious or concocted. In paragraph 4 of the plaint in this suit, the following admissions have been made by the plaintiff:

“A few days before his death, the said P.K Viswanathan Chettiar had executed a partition deed affecting division between himself and his younger brother and also a will in respect of his properties. But he died even before the documents could be registered. After his death disputes arose between his widow Gomathiammal and bis brother Palaniandi Chettiar in regard to the registration of the said two documents. The registering authorities having refused to register the documents, Gomathiammal filed two suits O.S 264 of 1920 and O.S 286 of 1920 respectively, both on the file of the Additional District Munsif Court, Tirunelveli, for a declaration that the will and the partition deed respectively were duly executed by her husband and for ordering registration of the documents.”

8. It is, therefore, clear on the plaintiff's own showing that before, the compromise was entered into, Gomathiammal claimed rights to the suit property and other properties of her husband and traced her tide to the partition deed under the will of her husband. It is not as if she merely claimed a right to maintenance and a right to property was conferred upon her for the first time under the compromise deed in lieu of maintenance. The deed of compromise recognised or acknowledged the pre-existing right of Gomathiammal, which she had already acquired under the testament and the partition deed, the execution of which has been admitted by the plaintiff in the plaint itself. It appears that these admissions were not brought to the notice of the learned second appellate Judge. In the light of these admissions, we have no option but to disagree with with the learned second appellate Judge and hold that Ex. A.1 is not a document, which by its own force and independently Of any preexisting right of Gomathiammal created or prescribed any restricted estate in her favour. What she possessed before the date of the compromise was not a mere right to maintenance, but an interest in the suit property and certain other properties. Under the compromise, the pre-existing right to property was recognised. It would then follow that the compromise decree would fall under S. 14(1) of the Act. But, before giving Gomathiammal, the benefit of S. 14(1) of the Act, we must be satisfied that she possessed the suit property as limited owner on 17th June 1956, the date on which the Hindu Succession Act came into force. The expression ‘possessed’ in the initial part of S. 14(1) appears to have been deliberately used by the legislature. The object of the Act was to confer a benefit on Hindu females by enlarging their limited estate in property into an absolute estate with retrospective effect, provided they were in possession of the property when the Act came into force, and, therefore, in a position to take advantage of this beneficial provision. In Gummalapura Taggina Matada Kotturusami v. Satra Veerayya the Supreme Court approved the view taken by the Calcutta High Court in Gostha Behari v. Haridas(2) and held that the opening words of S. 14 i.e, ‘property possessed by a female Hindu’ obviously mean that to come within the purview of the section, the property must be in possession of the female concerned at the date of the commencement of the Act The Act was not not intended to benefit persons who on the relevant date had already purchased property from a female limited owner. There is abundant authority for the proposition that the operation of the Act is confined to property in the possession of the female when the Act came into force. In the language of the Supreme Court in Seth Badri Prasad v. Srimati Kanso Devi† .(3).

“The critical words in sub-sec. (1) are ‘possessed’ and ‘acquired’. The word ‘possession’ has been used in its widest connotation and it may either be actual or constructive, or in any form recognised by law.”

9. It is, therefore, necessary for the appellant to make out that Gomathiammal was on the date of the Act in physical or constructive possession of S. No. 60/1. The appellant, who was the third defendant in the trial court, adopted the written statement of the first defendant, in which it was alleged that Gomathiammal was not given S. No. 60/1 under the compromise decree set out in the plaint, that what was really given to her was S. No. 30/3 and another property, that Gomathiammal was in enjoyment of S. No. 30/3 and the other property right from the date of the said compromise and that she never had possession of S. No. 60/1 which is item 1 of plaint schedule. It is also found from the evidence of P.W 2 that some time in 1932 S. No. 60/1 was transferred from the patta No. 557 of Gomathiammal to the patta No. 116 of Shahul Hameed and others (plaintiff's predecessors-in-title). Certain kist receipts were also produced before the trial court to show that no payment of kist was ever made by Gomathiammal for S. No. 60/1 after 1932. In fact, Gomathiammal herself had executed a will under Ex. B.5 dated 24th May 1964. whereby she bequeathed, not S. No. 60/1, but S. No. 30/3, in favour of her sister and her sister's daughter. The consciousness behind this testament is consistent with her having lost possession of S. No. 60/1 several decades earlier and with her having been in possession only of S. No. 30/3, It would, therefore, follow that on the date the Act came into force, she was certainly not in physical or constructive possession of S. No. 60/1. In fact, in the trial court, the case of the defendants was that what was allotted to Gomathiammal was only S. No. 30/3 and not S. No. 60/1, that S. No. 60/1 mentioned in Ex. A.1, the razinama decree was a mistake for S. No. 30/3 and throughout Gomathi-Ammal had been in possession of only S. No. 30/3. The trial Court accepted this case and went so far as to direct rectification of this mistake, forgetting that at the time it directed rectification (1966), a third party namely the plaintiff's predecessor had already acquired the vested remainder in S. No. 60/1 under a court sale on the basis that under the razinama, it was only a life interest in S. No. 30/3 that was allotted to Gomathiammal, and the vested remainder therein was held by Palaniandi Chettiar. No doubt, the rectification ordered by the trial court was set aside, both by the first appellate court and the second appellate court on certain grounds into which we need not enter. The resulting position is that Gomathiammal was not at the time the Act came into force, in possession of S. No. 60/1 even according to the defendants, and the evidence is conclusive that she was not in possession of S. No. 60/1 on the relevant date. It would, therefore, follow that Gomathiammal could not get the benefit of sub Sec. (1) of S. 14 of the Act. It is unnecessary for us to consider whether she could have acquired absolute title to S. No. 30/3. The subject matter of the dispute in this Letters Patent appeal is only S. No. 60/1 and not S. No. 30/3. The third defendant has failed to make out that Gomathiammal was in possession of S. No. 60/1 on the relevant date, and that consequently under S. 14(1) of the Act, her restricted estate became enlarged into an absolute estate.

10. We therefore confirm the judgment of the second appellate court, though on different grounds, and dismiss this appeal. There will be no order as to costs.

C.V.S