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Case Number

Second Appeal No. 204 of 1966, against judgment and decree of Civil J. Raichur, D/- 22-7-1965

Advocates

rasekhar
S.B. Ch
K.A. Swamy
K.R.D. Karanth

Judges

D.M Chandrasekhar
S.R Range Gowda, JJ.

Acts

HINDU SUCCESSION ACT 1956
Section 3(2) of the Hindu Women's Right to Property Act, 1937,
Hindu Women's Right to Property Act, 1937, and that Act
Section 6 of the Mysore High Court Act, 1961.2.
sub-section (1) and not sub-section (2) of S. 14
SECTION 39 TRANSFER OF PROPERTY ACT
Sub-section (2) of Section 94
sub-section (2) of Section 14
sub-section (1) of Section 14
sub-sec. (2) of Section 14
sub-section (1) of S. 14
sub-section (2) of S. 14

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This Second Appeal was before the court on a reference under the proviso to Section 6 of the Mysore High Court Act, 1961. The principal dispute concerns title to a suit land and an interlocutory injunction: the plaintiffs sought a declaration of title to the suit land and an injunction restraining defendant 1 from alienating it in favour of defendant 2.

Material facts (as stated in the opinion): plaintiff 1's father, defendant 1's husband and plaintiff 2's father were brothers; defendant 1's husband predeceased the other two. Both lower courts found that in the year 1335 Fasli defendant 1 executed an instrument called the Ekaramama (Exhibit P-1) in favour of plaintiff 1 and plaintiff 2's father. Exhibit P-1 recited that defendant 1 had obtained a decree for maintenance of Rs.50 per annum against them; because they could not pay, by settlement through respectable persons (panchayatdars) they put defendant 1 in possession of the suit land for her maintenance until death; it was recorded that the brothers would be reversionary owners and that defendant 1 would not sell or mortgage the land; registration of the document had not been possible then.

The lower courts held that Ex. P-1 did not require registration and that it created only a life interest in defendant 1; they applied sub-section (2) of Section 14 of the Hindu Succession Act, 1956 and decreed the plaintiffs' suit with a permanent injunction restraining defendant 1 from alienating the land. Defendant 2 appealed to this court and defendant 1 was impleaded as respondent 3.

Legal Issues Presented

Whether the unregistered Ekaramama (Ex. P-1) was inadmissible in evidence because it was not registered.
Whether a female Hindu who was in possession of property in lieu of her maintenance under an instrument, award or decree before the commencement of the Hindu Succession Act, 1956, becomes the full owner of such property by operation of Section 14(1) of the Act, or whether Section 14(2) (the exception) applies so that her interest remains a restricted estate.

Arguments of the Parties

Appellant's Arguments (as set out in the opinion)

Exhibit P-1 (the Ekaramama) was not registered; because the instrument purported to limit the interest of defendant 1 in joint family properties to the suit land and limited her interest to her lifetime, and because its value exceeded Rs.100, it was argued that the document was compulsorily registrable and hence inadmissible in evidence when unregistered.
Sub-section (1) of Section 14 of the Hindu Succession Act, 1956 (and not sub-section (2)) applied; therefore defendant 1 had become the absolute owner of the suit land under Section 14(1).

Other Parties' Arguments

The opinion does not contain a detailed account of the respondents' (plaintiffs' or defendant 1's) separate legal arguments beyond the findings of the courts below and the factual recitals of Exhibit P-1.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mallawwa v. Kallappa, (1966) 2 Mys LJ 633	Held that a Hindu widow to whom land was given for maintenance prior to the Act became full owner under Section 14(1).	The court distinguished this decision because, on the facts of Mallawwa, the widow had not obtained possession under any instrument, decree or award and sub-section (2) was not argued there; thus Mallawwa was held not to be applicable to the present case where possession was by instrument (Ex. P-1).
Badri Pershad v. Kanso Devi, (1969) 2 SCC 586 : AIR 1970 SC 1963	Construction of Section 14: sub-section (2) is an exception to sub-section (1); sub-section (2) operates only where acquisition is made for the first time under the instrument without any pre-existing right in the female in possession.	The court relied on this elucidation to frame the central inquiry: whether defendant 1 acquired the suit land for the first time under Ex. P-1 without any pre-existing right.
Sukh Ram v. Gauri Shankar, AIR 1968 SC 365	Where before the Act a widow acquired under Section 3(2) of the Hindu Women's Right to Property Act, 1937 the same interest as her husband had, she became full owner under Section 14(1).	The court noted the decision but held it inapplicable because the 1937 Act did not apply in the then princely State of Hyderabad (where the suit land lies) and because the husband's death preceded the applicability of that Act in the facts of the present case.
Gurunadham v. Navaneethamma, AIR 1967 Mad 429	Held the widow's right to maintenance is an indefinite personal right, not a proprietary right; when property is transferred in lieu of maintenance under an instrument the instrument is the source so the acquisition is first under that instrument and falls under Section 14(2).	The court described this as the representative authority for the view that subsection (2) applies where the widow acquires the property for the first time under an instrument; but ultimately the court disagreed with this approach.
Narayan Patra v. Tara Patrani, AIR 1970 Orissa 131	Affirmed that the widow's right to maintenance does not by itself confer proprietary or possessory rights, and that if a widow acquires property in lieu of maintenance she obtains it for the first time under the instrument (so Section 14(2) applies).	The court recorded this as another authority following the Gurunadham approach; again the court considered but did not adopt this line of decisions.
Yamunabai Gangadhar v. Parappa, (1968) 70 Bom LR 611	Deshpande, J. held that the widow's right to maintenance was an antecedent right attached to family property; an instrument putting her in possession recognized an existing right rather than creating it, so Section 14(1) applies.	The court identified this as a fundamental authority for the contrary view and ultimately preferred this approach.
State v. Ahalyabai, AIR 1938 Bom 321	Observation that a coparcener who takes by survivorship does so subject to the burden of maintaining the widow and unmarried daughters — the maintenance obligation attaches to the property.	Cited (through the judgment reported in Bom) by Deshpande, J. and noted by this court as supportive of the view that maintenance obligations are attached to property and that antecedent rights can exist.
Anna Saheb v. Ganga, 73 Bom LR 407 : AIR 1972 Bom 16	Palekar, J. followed Deshpande's view: antecedent maintenance right attaches to family property and an instrument is a mode of recognition rather than the source; therefore Section 14(1) should apply.	Identified as a supportive decision for the court's preferred position; used to corroborate the view that instruments generally recognise antecedent rights.
Chellammal v. Nallammal, (1971) 1 Mad LJ 439	Rama Murthy, J. dissented from the Gurunadham view and held that the widow's maintenance claim is founded upon a property right and that allotment in satisfaction is substitution/satisfaction of that claim (i.e., subsisting proprietary character).	Cited as another supporting authority for the court's view preferring antecedent proprietary character of the widow's maintenance right.
Sasadhar Chandra v. Tara Sundari, AIR 1962 Cal 438	Observations (per P.C. Mallick, J.) on the legislative intent and construction of "acquired" in Section 14—if interpreted narrowly, subsection (1) would be undermined.	Used by the court in policy/interpretive reasoning to support a broad construction of "acquired" and to favour an interpretation that furthers the remedial object of Section 14(1).

Court's Reasoning and Analysis

The court proceeded in two principal analytical stages corresponding to the appellant's two contentions.

1. Admissibility of Exhibit P-1 (registration argument)

The appellant argued that Ex. P-1 (the Ekaramama) was not registered and, because its value exceeded Rs.100 and it purported to deal with an interest in immovable property, it was therefore inadmissible in evidence.
The court examined the contention and observed that the suit land is situated in the Hyderabad Area of the new State of Mysore, but the appellant failed to show what the law governing compulsory registration in the then princely State of Hyderabad was at the time Ex. P-1 was executed.
Because the applicable registration law at the relevant time could not be established, the court held it could not be determined whether the instrument was compulsorily registrable. On that basis the court rejected the contention that Ex. P-1 was inadmissible for want of registration.

2. Whether Section 14(1) or Section 14(2) applies

The court identified a clear divergence of judicial views on whether a female in possession of property in lieu of maintenance under an instrument before the commencement of the Hindu Succession Act becomes full owner under Section 14(1), or whether Section 14(2) (the exception) applies to preserve a restricted estate specified by an instrument.
Relying on the Supreme Court's interpretation in Badri Pershad v. Kanso Devi, the court framed the decisive inquiry: did defendant 1 acquire the suit land for the first time under Ex. P-1 without any pre-existing right in the land? Sub-section (2) applies only where acquisition is for the first time under the instrument; sub-section (1) applies otherwise.
The court reviewed two lines of authority:
- (a) Cases (e.g., Gurunadham; Narayan Patra) holding that a widow's maintenance right is an indefinite/personal right and that when property is allotted under an instrument the instrument is the source — hence acquisition is first by the instrument and Section 14(2) applies.
- (b) Cases (e.g., Yamunabai Gangadhar; Anna Saheb; Chellammal) holding that a widow's right to maintenance is an antecedent right attached to the family property and that the instrument merely recognises/ascertains that existing right — in such situations Section 14(1) applies and the widow becomes full owner.
The court expressed a preference for the second line of decisions (Deshpande, Palekar, Rama Murthy JJ.). Key reasons given by the court:
- The Supreme Court's construction of the word "acquired" in Section 14(1) must be given the widest possible meaning (as indicated in Badri Pershad), and the Section's explanation explicitly includes acquisition "in lieu of maintenance."
- A narrow view that treats every instrument as creating the right would defeat the remedial object of Section 14(1), which seeks to remove disabilities on women and enlarge their rights.
- Practically, allotment of immovable property to a widow in lieu of maintenance would ordinarily be effected by instrument, decree or award; if such instruments were treated uniformly as creating the right for the first time, subsection (1) would be effectively nullified in many common situations.
Applying this reasoning to the facts, the court concluded that where a widow was put in possession of joint family property in lieu of maintenance (even under an instrument, decree or award) prior to commencement of the Act, she had an antecedent right and therefore becomes full owner under Section 14(1); Section 14(2) does not apply.
The court therefore held that the lower courts' conclusion that defendant 1 had only a life estate was unsustainable.

Holding and Implications

Holding: The appeal was allowed. The court reversed the judgments and decrees of the courts below and dismissed the plaintiffs' suit. The court held that where a widow of a coparcener was in possession of joint family property in lieu of her maintenance even under an instrument, decree or award prior to the commencement of the Hindu Succession Act, 1956, she becomes the full owner of such property by virtue of Section 14(1) of the Act; Section 14(2) does not apply to such a case.

Implications (direct effect): As a result of this decision, the lower courts' orders recognizing only a life estate in defendant 1 were set aside; the plaintiffs' claim was dismissed. The court directed that the parties bear their own costs both in this court and in the courts below, on account of the divergence of judicial opinion and absence of earlier decision of this court on the point.

The opinion does not purport to announce or discuss any further, broader legal consequences beyond the direct effect on the parties and the court's interpretative conclusion about the applicability of Section 14(1) in the factual class of cases considered.

Outcome recorded in the opinion: Appeal allowed. Parties to bear their own costs.

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Hanamangouda Venkanagouda, v. Hanamanagouda And Others,

Chandrasekhar, J.:— This Second Appeal has come up before us on a reference made under the proviso to Section 6 of the Mysore High Court Act, 1961.

2. The principal question that arises in this appeal is whether a female Hindu who was in possession of any property in lieu of her maintenance under an instrument or settlement before the commencement of the Hindu Succession Act, 1956 (hereinafter referred to as the Act), becomes the full owner of such property under Section 14 of the Act. The suit is for declaration of the plaintiffs' title to the suit land for restraining defendant 1 from alienating it in favour of defendant 2.

3. It is common ground that plaintiff 1's father, defendant 1's husband and a plaintiff 2's father were brothers and that defendant 1's husband died earlier to the other two.

4. Both the courts below have held that defendant 1 had executed in the year 1335 Fasli the Ekaramama. Exhibit P-1, in favour of plaintiff 1 and the father of plaintiff 2. It is stated therein, inter alia, that she had obtained a decree against them for her maintenance at the rate of Rs. 50/- per annum, that as they were unable to pay her the maintenance, as per the settlement of respectable persons they put her in possession of the suit land, for her maintenance till her death, that they would be reversionary owners of that land, that it would not be sold or mortgaged by her that registration of that document was not possible then and that she would get it registered whenever required by them.

5. Both the courts below held that the Ekramama, Ex. P-1, did not require registration, that as defendant 1 got possession of the suit land under an instrument which provided that she should have no more than a life interest in that land, sub-section (2) and not sub-section (1) of Section 14 of the Act was applicable to the case and that her interest in such property was not transformed into an absolute estate. In that view, both the courts decreed the suit and granted a permanent injunction restraining defendant 1 from alienating the suit land in favour of defendant 2.

6. Defendant 2 has appealed. Defendant 1 has been impleaded as respondent 3.

7. Mr. K.R.D Karanth, learned counsel for the appellant, urged the following contentions:

(i) The Ekramama, Ex. P-1, which had not been registered, was inadmissible in evidence; and

(ii) Sub-section (1) and not sub-section (2) of Section 14 of the Act was applicable to the case and defendant 1 had become the absolute owner of the suit land.

8. Elaborating the first contention, Mr. Karanth argued that the Ekaramama, Ex. P-1, limited the interest of defendant 1 in the joint family proporties to the suit land only and also limited her right to and interest in the suit land to her lifetime only, that as its value was more than Rs. 100/- that instrument was required to be registered and that as it was not so registered, it was not admissible in evidence.

9. The suit land is situate in the Hyderabad Area of the new State of Mysore. But Mr. Karanth has not been able to show what the law in force in the then princely State of Hyderabad, was in regard to registration of documents at the time when Ex. P-1 was executed. Without knowing what such law was at the time when Ex. P-1 was executed it cannot be decided what category of instruments were compulsorily registrable and whether Ex. P-1 was compulsorily registrable, even assuming for the sake of argument that it (Ekararnama) created, extinguished or limited rights to, or interest in, immovable properties of the value of over Rs. 100/-.

10. Hence, we reject the contention of Mr. Karanth that the Ekramama, Ex. P-1, was inadmissible in evidence on the ground of its not being registered.

11. We shall deal with the second contention of Mr. Karanth. On the question whether a female in possession of a property in lieu of maintenance under an instrument, award or decree, on the date of commencement of the Act, gets ownership of such property under sub-section (1) of Section 14 of the Act, there is divergence of views among different High Courts and even within one of the High Courts. There is no decision of the Supreme Court or of this court on this very point.

12. No doubt, there is a decision of a Bench of this Court in Mallawwa v. Kallappa, (1966) 2 Mys LJ 633 in which a Hindu widow to whom a land had been given for her maintenance prior to the Act coming into force, was held to have become the full owner thereof under sub-section (1) of Section 14 of the Act. But from the facts narrated in the judgment in that case, it does not, appear that she got possession of that property under any instrument, decree or award. Nor was it contended there that sub-section (2) of Section 14 was applicable to that case. There is also no discussion in that judgment as to why sub-sec. (2) of Section 14 was not applicable to that case. Hence that decision has no application to the present case in which defendant 1 was given the suit land under the instrument. Ex. P-1, which mentions of a settlement by the intervention of panchayatdars.

13. Sub-section (1) of Sec. 14 of the Act provides that any property possessed by a female Hindu, whether before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner.

14. The explanation to that sub-section states, inter alia, that in that 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 arrears of maintenance, or by gift from any person, whether a relative or not, before, or after her marriage.

15. sub-section (2) of Section 14 of the Act reads:

“(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.”

16. In Badri Pershad v. Kanso Devi, (1969) 2 SCC 586 : AIR 1970 SC 1963 while construing Section 14 of the Act, Grover, J. who spoke for the Court, said thus: The Section has to be read as a whole, Sub-section (2) of that Section is more in the nature of a proviso or an exception to sub-section (1). Whether a particular case is covered by sub-section (1) or sub-section (2) would depend upon the facts of that case. Sub-section (2) of Section 94 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 in possession of the property. The object of Section 14 is only to remove the disability on women imposed by law and not to interfere with contracts, grants or decrees, etc., by virtue of which women's right was restricted.

17. In Sukh Ram v. Gauri Shankar, AIR 1968 SC 365, the Supreme Court held that where before the Act came into force, a widow had acquired by virtue of Section 3(2) of the Hindu Women's Right to Property Act, 1937, the same interest in the joint family property which her husband had she became the full owner of such interest by virtue of the provisions of Section 14(1) of the Act, and that she was competent to sell that interest for her own purpose without the consent of the male coparceners of her husband.

18. But the decision in AIR 1968 SC 365 has no application to the present case because defendant's husband died long prior to the coming into force of the Hindu Women's Right to Property Act, 1937, and that Act did not apply to then princely State of Hyderabad in which the suit property is situate and in which defendant 1 has been residing and her husband also resided.

19. In view of the elucidation by the Supreme Court in (1969) 2 SCC 586 : AIR 1970 SC 1963 as to when sub-section (2) of Section 14 comes into operation, we have to examine whether in the present case defendant 1 acquired right to the suit land for the first time under the Ekramama, Ex. P-1, without there being any preexisting right in her in that land.

20. The decisions which have taken the view that sub-section (2) of Section 14 of the Act is applicable to the case of the widow of a coparcener being in possession of any property of the joint family in lieu of her maintenance under an instrument, decree or award, have proceeded on the premise that she had no right in such property prior to such instrument, decree or award and that she acquires right to such property for the first time under such instrument, decree or award. On the other hand, the decisions that have taken the view that sub-section (1) of Section 14 applies to such case, have proceeded on the premise that she had some right in the joint family property, which right gets crystallised, declared and recognised in the instrument, decree or award.

21. The former view has been propounded by Natesan, J. in Gurunadham v. Navaneethamma, AIR 1967 Mad 429. This is what his Lordship said at pages 430 and 431.

“The widow's right to be maintained out of her husband's property or out of joint family property is an indefinite right which no doubt can be made certain and charged on specific properties by agreement, decree of court or panchayat, award or otherwise, Section 39 of the Transfer of Property Act provides for the enforcement of the right of maintenance from the profits of immoveable property even against a transferee of the property if he has notice thereof or where the transfer is gratuitous; but it is manifest that neither Section 39 of the Transfer of Property Act nor the personal law make the bare right of maintenance out of the profits of a property a proprietary right in the property. Even when a charge is created over a specified property it is well known there is no transfer of the property or of any right in the property, only there is creation of a right of payment out of the property. In the discharge of the obligation to maintain out of the estate of the husband or of the property of the family, particular property may be transferred to the female and placed in her possession. Thus no doubt she acquires the property in lieu of maintenance, but the instrument where there is one which transfers the property to her is then the source of her title to the property. She acquires the property only under the instrument, true in lieu of her right to maintenance.”

22. In that view his Lordship held that where in a partition of joint family properties in the year 1932, between 4 brothers, certain properties were allotted to their widowed mother for her maintenance on the condition that she should enjoy them during her lifetime only and should have no power of alienating them, the estate given to her under the instrument of partition, fell under sub-section (2) of Section 14 of the Act and sub-section (1) of that section did not operate.

23. The above decision was followed by a Bench of the Orissa High Court in Narayan Patra v. Tara Patrani, AIR 1970 Orissa 131 in which the following conclusions were stated to follow on a consideration of the general principles of Hindu Law:

“(a) The right of a Hindu widow to be maintained out of the family properties, by itself, does not confer on her any possessory lien or proprietary right or title in the property of the family.

(b) If any rights in the property of her husband or joint family property are acquired by a Hindu widow in lieu of her maintenance, she would obtain the property for the first time under the instrument notwithstanding the fact that the property is transferred to her in lieu of her pre-existing right of maintenance.”

24. In that view their Lordships held that where under an award certain immovable properties of a joint family ware allotted in the year 1915 to four widows of deceased coparceners to be enjoyed by them during their lives with no power of alienation, sub-section (2) of Section 14 of the Act applied to that case and that the rights of widows were not enlarged into absolute estate on the coming into force of the Act.

25. The opposite view has been enunciated by Deshpande, J. in Yamunabai Gangadhar v. Parappa, (1968) 70 Bom LR 611. His Lordship quoted the observations in Secy. of State v. Ahalyabai, AIR 1938 Bom 321 to the effect that if a coparcener takes the property of another deceased coparcener by survivorship, he takes it with the burden of maintaining the widow and unmarried daughters of the deceased coparcener, that in that sense the property which he takes by survivorship is burdened with the obligation to maintain the widow and that such right of maintenance attaches to the property itself which is taken by survivorship. His Lordship next referred to the above quoted passage in the judgment of Natesan, J., in AIR 1967 Mad 429 and said thus at pages 614 and 615.

“It is true that this right of the widow for her maintenance out of the joint family property did suffer from these and several other infirmities. Even so, it was potential right capable of being ascertained and being a subject-matter of the charge on the joint family property. Once it is found that a widow did possess such rights in the joint family property, it cannot be said that such rights or interests, attached to the property given in her possession in lieu of her maintenance at some stage, are created for the first time when the property is put in her possession under some arrangement or instrument or under a decree of some court or under some award. The instrument of decree, still, cannot be said to be a source of foundation of her rights, in the property so assigned. What she gets under the instrument or the decree in such cases, is only in recognition of the rights she possessed in the property by virtue of her being a widow of the said joint family …………………………… This right of the maintenance of the widow could be given effect to in various ways. She could have been content by staying with the coparcener or content with getting some amount periodically from the surviving coparcener. In yet another case, her claim could have been satisfied by putting her in possession of a part of the joint family estate under oral arrangements. She might have enforced her claim by obtaining award or decree or received some property in satisfaction of this claim, under some instrument. What is of essence is that all these devices were meant to satisfy and recognise her legal claim which exists independently of the arrangement, instrument or award. In this view of the matter. It is not correct to say that where as here a Hindu widow was put in possession of some property in lieu of her maintenance, under some instrument, she can be said to have acquired the right in the property for the first time, only under the instrument. Her right to be maintained out of the property already existed by virtue of being a widow of the joint family and this right was antecedent to the date when the instrument came into existence. The instrument only recognises her right to a certain ascertained and definite property though she had possessed such rights even before the date of instrument without reference to this particular property. In view of this, it is impossible to hold that any such instrument, decree or award and private arrangement is the source or foundation of her rights.”

26. The above decision of Deshpande, J. was followed by Palekar, J. in Anna Saheb v. Ganga, 73 Bom LR 407 : (AIR 1972 Bom 16). His Lordship pointed out that if a widow entitled to maintenance is in possession of the joint family property, she cannot be ousted therefrom even by a coparcener unless an arrangement is made for providing her with maintenance. His Lordship said that this and other characteristics of the right of a Hindu widow to be maintained out of the joint family properties, may not amount to any proprietary right to any portion of the joint family properties, and that nevertheless, a right to maintenance is a right attached to the family properties. His Lordship added that the emphasis on the nature of the antecedent right of the widow in the joint family properties is not as important as the question whether the instrument, decree or award referred to in sub-section (2) of Section 14 is the real source or originator of the restricted estate granted thereunder. His Lordship opined that when a widow is given certain properties in lieu of her maintenance, her antecedent right for maintenance attached to the joint family properties, is translated into another form through the medium of the instrument, decree or award which is not the source or the foundation of the right to the property put in her possession.

27. In Chellammal v. Nallammal, (1971) 1 Mad LJ 439, Rama Murthy, J., dissented from the view taken by Natesan, J. in AIR 1967 Mad 429, and said that the claim of a widow of a deceased coparcener, for maintenance is not a personal claim but is founded upon property right and is based on the fact that the surviving coparcener has taken the share of the deceased coparcener by survivorship. His Lordship added that such claim is a real enforceable subsisting claim against the family properties and the allotment of properties to her is a substitution or a satisfaction of that claim and not a satisfaction of a mere personal claim against the surviving coparcener. His Lordship concluded that it was impossible to take the view that allotment of properties for maintenance, should be treated as totally unconnected with and having no semblance of right to properties.

28. On the question whether a widow of a deceased coparcener who had been given certain properties in lieu of her maintenance, acquired those properties for the first time without there being any pre-existing right, the view taken by Deshpande, Palekar and Rama Murthy, JJ. is, in our opinion, to be preferred to the view taken by Natesan, J. and the Bench of the Orissa High Court in AIR 1970 Orissa 131, if we may say so with respect. If it is held that the widow had pre-existing right in the joint family properties given to her in lieu of her maintenance, it follows that sub-section (1) and not sub-section (2) of S. 14 of the Act applies to such case and that she becomes the full owner of such properties even if they were given to her under an instrument, decree or award.

29. There is one more reason foe holding that sub-section (1) and not sub-section (2) of S. 14 applies to the case of a widow who had been given certain joint family properties in lieu of hen maintenance. As stated by the Supreme Court in (1969) 2 SCC 586 : AIR 1970 SC 1963, the word “acquired” in sub-section (1) of S. 14 has to be given the widest possible meaning because the explanation makes sub-section (1) applicable to acquisition of property by inheritance or device or at a partition or in lieu of maintenance or arrears of maintenance or in any other manner whatsoever. So property got by a widow in lieu of her maintenance comes within the ambit of sub-sec. (1), Generally, allotment of immovable property to her in lieu of her maintenance, would have been under an instrument, decree or award rather than under an oral agreement or arrangement. As pointed out by P.C Mallick, J., who spoke for the Bench in Sasadhar Chandra v. Tara Sundari, AIR 1962 Cal 438, if the Legislature intended that the property given to the widow of a deceased coparcener for her maintenance, should be treated on the same footing as a gift of devise in sub-section (2) of S. 14 then the whole effect of sub-section (1) would be destroyed in respect of properties which were given to a female Hindu for her maintenance, prior to the Act except where such properties are given under an oral agreement or arrangement. But such oral agreement or arrangements would have been very rare in regard to immovable properties. As pointed out by Deshpande, J. in (1968) 70 Bom LR 611 the intention of the Parliament in enacting Section 14 of the Act, was to enlarge the rights of female Hindus under the terms of Hindu Law as it existed before the commencement of the Act, and to bring their rights on par with the rights of men. That is why sub-section (1) of S. 14 in terms says that the property possessed by a female Hindu shall be held by her as full owner thereof and not as limited owner. Hence, an interpretation which promotes that object should be preferred to one which defeats that object or narrowly limits the remedial effect of that beneficial legislation, should be preferred.

30. For the reasons stated above, our conclusion is that if the widow of a coparcener was in possession of a joint family property in lieu of her maintenance even under an instrument, decree or award, prior to the commencement of the Act, she becomes the full owner thereof by virtue of sub-section (1) of S. 14 of the Act and that sub-section (2) of that section has no application to such ease.

31. In that view, the conclusion of file courts below that defendant 1 had only a life estate in the suit land, is unsustainable. In the result, we allow this appeal, reverse the judgments and decrees of the courts below and dismiss the suit.

32. As there is divergence of judicial opinion on the main question arising in this appeal and as there was no earlier decision of this court on that question, we direct the parties to bear their own costs, both in this court, and in the courts below.

Appeal allowed.

Hanamangouda Venkanagouda, v. Hanamanagouda And Others,

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (as set out in the opinion)

Other Parties' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Hanamangouda Venkanagouda, v. Hanamanagouda And Others,

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