R. Narasimhachari v. Andalammal (Died) And Others.

(Ramaprasada Rao, J.)

1. One Rangachariar, who died on 31st May 1955, left behind him surviving—wife Andalammal and son Narasimhachari. Admittedly, the properties possessed by the family were landed properties and one house property, which is the subject matter of this litigation. In so far as the landed properties are concerned, they were sold at the instance of Andalammal, who is the plaintiff in the present suit, and Narasimhachari, the first defendant therein and others, who were interested in third parties under Exs. B-1 to B-6. After the sale of such lands, apparently disputes arose between the mother and the son. Namakkal Panchayat Union was occupying the suit property. As demands for payment of rent were made both by the mother and the son, the tenant filed an application before the Rent Controller in H.R.C.O.P 5 of 1969, marked as Ex. A.2, in the case, which was a petition under S. 9(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act, praying for directions from court as to in what manner and to whom the rents payable by it have to be paid. There was an allegation in that petition in paragraph 5 thereto that Andalammal was claiming half share in the rent payable by the Panchayat Union and that the tenant was advised that under the Hindu Succession Act, Andalammal was also entitled to half share in the house and as there was a counter-demand by the son Narasimhachari as well he had to file an application under S. 9(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act. To this Narasimhachari filed a counter-statement wherein he would say ‘the mother is not entitled to any share in the house as stated by the Panchayat Union. Even assuming that she is entitled to any share, she could file a suit for partition and damages for use and occupation against the son……”. The Rent Controller, however, could not decide the conflicting claims as between the mother and son, and the parties therefore, were referred to a civil suit so as to establish their respective title and the quantum of it in the suit property. The plaintiff therefore, had to file as early as 1969 a suit, which was later numbered as O.S No. 117 of 1972 on the file of the Subordinate Judge, Salem, for a declaration of her right to share in equal moieties in the suit property and for possession of the same. Having filed this suit, the plaintiff also filed the substantive suit O.S No. 389 of 1971, on the file of the same court claiming partition of the suit property and for possession of her share.

2. Before we refer to the pleadings in O.S No. 389 of 1971, it would be convenient to refer to the evidence of Narasimhachari (1st defendant in O.S No. 389 of 1971). According to Narasimhachari, his mother, the plaintiff, was never in possession of the suit house at any time, and therefore, she had no manner of right over the same. He would add that he was in possession of the property to the exclusion of his mother, and therefore, the suit for declaration does not lie. As we said, the present action was a comprehensive one for partition by the plaintiff-mother impleading her son as the first defendant and the Namakkal Panchayat Union as the second defendant. After referring to the sale of the landed properties of the family, the plaintiff would say that she received a portion of the surplus consideration of such sale and that she handed over the same to the first defendant for re-investment and that the first defendant took up a hostile attitude after receipt of the said amount from her and drove her out and since then she was residing with her daughter at Srirangam and finding that her notice prior to the suit under Ex. A-1 did not bear fruit she came to court for partition of the suit house and for separate possession of her share therein.

3. For the first time the 1st defendant would plead that long prior to the sale of the landed properties under Exs. B-1 to B 6, there was a family arrangement in the presence of panchayatdars, DWs. 2 and 3, whereby it was arranged inter alia that the plaintiff should seceive a sum of Rs. 16,800 from and out of the available surplus cash after paying the admitted debts of the family by sale of the landed properties and that on receipt of the said fund the plaintiff should relinquish her right, title and interest over the suit house and that no instrument of release was obtained by him because of his close relationship with the plaintiff. This defence, as we said, was never whispered earlier in the two sections which we referred to already.

4. Having stated this, the first defendant's case is that the plaintiff was not in possession of the suit house on the date when the Hindu Succession Act, 1956, came into force and that he was in continuous possession of the same to the exclusion of the plaintiff and she was therefore not entitled to the relief asked for in the partition action.

5. The learned trial Judge framed the following issues—

1. Whether the plaintiff is the absolute owner of half share in the suit building described in A schedule?

2. Whether the ouster alleged by the first defendant is true?

3. Whether the plaintiff it entitled to claim half share in the amount Rs. 1923-75, deposited in H.R.C O.P 5 of 1969 by the second defendant?

4. Whether the plaintiff is entitled to the relief of declaration?

5. To what relief, if any, is the plaintiff entitled?

The trial Judge found every one of the issues against the first defendant and decreed the suit. Having found that the plaintiff was entitled for partition as prayed for in O.S No. 389 of 1971, he decreed the suit O.S 117 of 1972 as well. The first defendant is not challenging before us the conclusion arrived at by the trial Judge in O.S No. 117 of 1972. whereby she obtained a declaration as to her half share in the suit house. But, curiously enough, the first defendant has come up in appeal challenging the decision and conclusion of the trial Judge in O.S No. 389 of 1971 alone.

6. Mr. Vedantam, the learned counsel for the appellant contends that the learned trial Judge ought to have accepted the story of overall relinquishment which followed a family arrangement and that therefore, the suit for partition was misconceived. During the pendency of this appeal, the plaintiff-respondent died on 14th July 1973. Her five daughters and one other son of Rangachari, who went out of the family on division were brought on record as legal representatives of Andalammal. It is not in dispute that the first defendant would also be one such legal representative. In this context, therefore, the court asked Mr. Vedantam as to the sustainability of this appeal after the death of Andalammal, as the appellant himself has become a co-sharer along with others tothe estate of Andalammal. While stating that he would be a heir to Andalammal if she was entitled to half of the property, the case of the appellant is that by virtue of the family arrangement referred to earlier he has become the full owner of the entirety of the property and that therefore, the other legal representatives brought on record have no present interest in any part of the suit property as heirs of Andalammal. Unfortunately, in this case the legal representatives so brought on record have chosen to remain ex parte. We therefore, requested Mr. S. Gopalaratnam, to assist the court as amicus curiae on a question which might possibly arise in this case if we are not accepting the theory of family settlement as pleaded by the appellant.

7. The question on which we sought the assistance was whether a Hindu widow who secures a statutory right under the Hindu Women's Rights to Property Act, 1937 without being in corporeal possession of the property to which her husband was entitled on the date of the induction of the Hindu Succession Act, 1956, can still maintain that her legal entitlement under the quondam 1937 Act has been enlarged into an absolute estate within the meaning of S. 14(1) of the Hindu Succession Act? We shall consider this legal question later on.

8. We shall at once dispose of the story whether there was a family settlement in consequence of which the mother—the plaintiff in the action, relinquished either expressly or by necessary implication her right to a half share in the suit property. No doubt, under Exs. B-1 to B-6 it appears that a sum of Rs. 16,800 was obtained by the mother, as is seen from the endorsement in each of the sale deeds noted by her along with her son in favour of third parties. Her case is that this amount was handed over to the first defendant, for investment for her benefit. The first defendant's case is that no such amount was paid to him and he would set up a counter case under which, according to him, the plaintiff has given up her title to the suit property. For this purpose, he examined D.W.s 2 and 3 to prove that a panchayat took place in the family resulting in sale of the property and also to the understanding that the plaintiff should receive a sum of Rs. 16000 and odd and to give up her right in the suit property. Obviously, the first defendant's case was that the sales followed the alleged Panchayat. But, the Panchayatdars would give up the specific case of the first defendant. Their testimony gives us the impression that there was a sale already of the family lands and that they were called upon to adjust the dues as between the mother and son regarding the division of the available surplus from and out of the sale proceeds after paying the debts of the family. This by itself gives a lie direct to the story of the first defendant. Apart from it, the parrot-like way in which D.W.s 2 and 3 spoke in the witness box about the manner and method of their participation in an alleged panchayat does not give us a reasonable impression that there was ever a panchayat at all. Even apart from it, the attitude and consistent conduct of the first defendant on the two earlier occasions—once before the Rent Controller and the other in the very Subordinate Court in which a suit for declaration was filed by the mother, also supports the plaintiff's case and strikes at the very foundation of the first defendant's defence. One would expect that the defence of an oral release consequent upon a family panchayat or a family settlement ought to have loomed large in the pleas recorded on the two earlier occasions. We have already referred to the fact that before the Rent Controller the first defendant's case was that the plaintiff should separately file a suit for partition, even assuming she is entitled to any share. There was no whisper about a panchayat or a contemporaneous family arrangement. Even so, as late as 1969, when he was called upon to answer the first suit filed by the mother for a declaration of her half share in the property, the son would say that the plaintiff was never in possession of the suit building and that he continued to be in possession, and therefore, she was not entitled to a half share therein. Obviously, he introduced this concept of possession for the first time having been enlightened of the conflicting position of law then prevailing as to what would be the quality and quantity of right of a Hindu widow who, without reducing the weight of her right under the Hindu Succession Act, 1937 into physical possession, was contending that she was entitled to that share which her husband was entitled to in accordance with the provisions of Succession Act 1956. Be that as it may, even in his written statement in O.S No. 117 of 1972, the first defendant never put up the case of the panchayat. We have already expressed our views on the testimony of D.Ws 2 and 3.

9. D.W.1's evidence, obviously being interested cannot take us further. The mere fact that there are certain recitals in Ex. B1 and B6 by way of endorsements to show that a sum of Rs. 16,800 was received by the mother, cannot support the first defendant's case that there was a panchayat and consequent upon that panchayat a decision by way of a family arrangement was arrived at whereunder the mother accepted to receive a sum of Rs. 16,800 in full quits of her rights against the family house and above all should be deemed to have released and relinquished her right thereto by necessary implication. Though it may not be necessary in this case to express any opinion on the question whether in such circumtances the best evidence, namely, a written instrument of release ought to have been sought for by the first defendant, yet Mr. Vedantam's case is that if possession is taken by a member of a family pursuant to a family settlement, and if such possession is proved and attributable to the decision of a panchayatdar at a family counsel held for that purpose, then such conduct by itself is proof of the acceptance of the decision of the panchayat, and also is reflective of the family settlement arrived at between the members; we are not called upon in this case to express any opinion on the impact of non-availability of a registered deed of release. But having regard to the absence of a plea as to a panchayat, etc., in the earlier litigation between the parties and as we are unable to believe D.Ws.2 and 3, and therefore necessarily their testimony has to be rejected, we are of the view that the family settlement as pleaded by the appellant in this case is not true.

10. The other question, therefore, which survives for consideration is the legal question. The poser in this case revolves upon the content, weight and scope of the right of a Hindu widow under the Hindu Women's Rights to Property Act, 1937, and the impact of the later codified law under the Hindu Succession Act, 1956, over it after it came into force. Originally, under the 1937 Act a Hindu widow's right was severely circumscribed by the provisions of that Act. She had no doubt a demonstrable right to obtain the entitlement which her husband was entitled to either in his selfacquired property or in the coparcenary in which he was a member. She could demand a partition of her share from the other sharers or coparceners. But, the overall limitation or circumspection which was conceived by the 1937 Act was that she should not, for reasons not contempleted and accepted by the then personal law of Hindus, sell or alienate her share except for accredited and sanctioned purposes. The question arose whether such a right which she obtained under the 1937 Act was a bare incorporeal right or whether she could subjectively crystallize it without even demanding a partition of her own share but by merely projecting it as a right known to jurisprudence. There was no uniform view on this aspect. It is for this purpose we requested Mr. Gopalaratnam as well as the counsel for the appellant to assist us in understanding the content and weight of that right which a widow obtained under the 1937 Act.

11. In the particular case, the husband died prior to 1956 Act. The widow did not take any steps to crystallize her right by reducing her entitlement to corporeal possession of her share either by demanding a partition from the other sharers, or by instituting a suit for partition in order to secure the relief under the 1956 Act. One such suit for partition was filed long after 1956 and, to wit, in 1971. It is in this perspective that the question has arisen whether the widow's interest in the circumstances stated above is ‘property’ which is enforceable in the eye of law witheut herself securing possession of her share either by asking for it or by instituting a suit for it. It has been held by our court that such an interest which a Hindu widow acquired under S. 3(2) of the 1937 Act got itself defined as soon as an unequivocal demand for partition is made by her. The 1956 enactment which has made good strides in systematically and dimensionally improving and increasing the content of such a right of a Hindu widow under the 1937 Act has made it explicit in S. 14(1) that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof, and not as a limited owner. The explanation to sub-sec.14(1) is also apposite and it may be quoted:

‘Explanation: In this sub-section ‘property’ includes both movable and immovable property acquired by a female Hindu by inheritance or device or at a partition or in lieu 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 by any such property held by he as Stridhan immediately before the commencement of this Act.”

Having regard to the induction of certain privileged statutory provisions under the 1956 Act it is for consideration whether still a demand for partition by a Hindu widow in the circumstances stated above is a condition precedent or a sine quo non for the enlargemen, of her limited estate under the 1937 Actt into an absolute estate within the meaning of S. 14(1) of the 1956 Act.

12. Mr. Gopalaratnam, while assisting us as amicus curiae since the other qualifying shares in this case are not interested in participating in this litigation, took us through the mirage of laws commencing from 1953 and ending with 1977. We have already touched upon the earlier view which had undoubtedly survived (as it ought to be, in those days when the 1956 enactment opened the floodgates for expanding the just and rightful rights of Hindu women and widows) which provided that if the woman divided herself from the other members of the family during her lifetime, on her demise the succession would be traced to her husband on the basis that the property was her separate property.

13. Later, Rajagopala Ayyangar, J. had occasion to consider the question—what would be the scope of that right of a Hindu woman after the passing of the Hindu Succession Act, 1956, in Kvppathammal v. Sakthi . A.I.R 1957 Mad. 695=70 L.W 249. and he observed—

“In the case of the separate property of the last male owner S. 3(1) enacts that the widow or all the widows together in case a plurality of the deceased shall be entitled to the same share as the son and under sub-S.(2) of the seetion in the case of coparcenary property she or they were to have the interest of the deceased; The vesting in either case is absolute, in the sense that the statute does not impose any condition or require any formalities to be complied with before the share or the interest becomes vested.

It might be that if the exercise of the rights conferred by the enactment is obstructed or the enjoyment of the rights conferred is disputed by any hostile act the widows might be compelled to resort to courts to indicate their right but this clearly does not import into the right any imperfection or render the rights created inchoate in any manner.”

Still later, the question which is posed in the first instance arose as to what is the meaning of the expression ‘possessed’ in S. 14(1) and whether such possession should be, as is popularly understood, physical or constructive possession, or is it enough if an incorporeal right to possess or juridically possess the property is the equivalent of the popular understanding of the word ‘possess’ in S. 14(1)? In Kotturasami v. Satya Veerayya the word ‘possessed’ in S. 14 has been explained thus—

“The word ‘possessed’ in S. 14 is used in a broad sense and in the context means the state of owning or having on one's hand or power”.

The same view was expressed by the Supreme Court in Munnalal v. S. S. Rajkumar . A.I.R 1967 S.C 1493. and in a subsequent decision in Mangal Singh v. Rattno . A.I.R 1967 S.C 1786. In the last case the Supreme Court considered this legal concept rather elaborately and expressed thus—

“Thus, three different meanings are given; one is the state of owning, the second is having a thing in one's own hands, and the third is having a thing in one's own power. In case where property is in actual physical possession, obviously it would be in one's own hands. If it is in constructive possession, it would be in one's own power. Then there is the third case where there may not be actual, physical or constructive possession and, yet, the person still possesses the right to recover actual physical possession or constructive possession; that would be a case covered by the expression ‘the state of owning'—It appears to us that the expression used in S. 14(1) of the Act was intended to cover cases of possession in law also, where lands may have descended to a female Hindu and she has not actually entered into them. It would of course, cover the other cases of actual or constructive possession. On the language of S. 14(1), therefore, we hold that this provision will become applicable to any property which is owned by a female Hindu, even though she is not in actual physical or constructive possession of that property.”

14. We, therefore, come to the stage when there is an authoritative binding opinion of the Supreme Court that ‘possession’ within the meaning of Sec. 14(1) of the Act need not be possession in the dictionary meaning of that expression, but in the legal sense of entitlement to secure such possession. This is the second stage. We have set out the first stage when it was thought that a demand for partition or a suit for separate possession as a result of an action for partition was necessary to liberalise the content of the right of a Hindu woman under the Hindu Women's Rights to Property Act, 1937.

15. The second stage, we have reached as above is wherein the Supreme Court has said that such possession need not be actual, physical or constructive, and it will be sufficient that if she has the power to possess. In Badri Prasad v. Kanan Devi . A.I.R 1970 S.C 1963. the Supreme Court expatiating again on the word ‘possession’ said—

“Where a female Hindua cquires an interest under the Hindu Women's Rights to Property Act, 1937 in the properties of her husband which was later on partitioned by metes and bounds and she gets possession of the properties allotted to her, then she is not only ‘possessed’ of that property at the time of coming into force of the Hindu Succession Act, but had also acquired the same before its commencement and hence will become an absolute owner under Sub-sec (1),”

They would also add that the word ‘acquired in sub-S.(1) has to be given the widest possible meaning and the word ‘possessed’ in sub-S.(1) has also to be interpreted in its widest connotation and ‘possession’ contemplated therein may be in any form recognised bylaw.

16. Ismail, J. in Dhanalakshmi Ammal v. Official Trustee, Madras . C.S 57 of 1964 Reported in 91 L.W 45 S.N. did consider many of the above decisions in his instructive judgment delivered by him sitting on the Original Side. As usual in this Court, such decisions rendered by Judges sitting on the Original Side are felt by the reporters of our journals as unreportable, and it has not seen the light till this day.

17. After 1970 in the third stage we have again the decision of the Supreme Court almost reiterating the position. In Tulasamma v. Seshareddi . A.R 1977 S.C 1944=50 L.W 89 S.N the Supreme Court said, sub-Sec (1) of S. 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. It is not necessary to increase the citations.

18. The net result of the exposition of law as made by the Supreme Court and our Court is that it is not necessary for a Hindu widow entitled to rights under the 1937 Act to seek for partition either by demanding it or by filing a suit for that purpose. Her entitlement or right to possess the property under the 1937 Act enlarges itself by reason of the liberal and wide amplitude of S. 14(1) of the 1956 Act. Thus understood, the first defendant's case that the plaintiff was not entitled to a right to institute an action for partition, because she was not in possession of the suit house, fails. The lower court, therefore, was right though for different reasons in having accepted the case of the plaintiff.

19. Now that the mother Andalammal is dead, her share in the property would be inherited by her five daughters and the two sons, including the appellant. The final decree, will therefore, take note of this and divide the property or its money equivalent equally as between the six respondents brought on record as the legal representatives of the deceased Andalammal and also the appellant.

20. We are indeed thankful to Mr. Gopalaratnam for having readily consented to assist us in this case as amicus curiae.

VCS