1. This is an application by a Hindu mother for an order that the properties to be allotted to her under the preliminary decree in this suit be allotted to her as a full owner, and the preliminary decree be amended accordingly. The preliminary decree directed that the properties to be allotted to her “be held and enjoyed by her as a Hindu mother during the time of her natural life in the manner prescribed by Hindu Law”. The preliminary decree was passed on 31-1-1951. Since then, the Hindu Succession Act, 1956 came into force. The plaintiff contends that under S. 14 of the Act she is now entitled to hold and enjoy the properties to be allotted to her on partition as a full owner and not as a limited owner. It is contended by the contesting defendant that she is not entitled to the order under the said section. The decision will depend on the construction of S. 14 of the Act, which 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.

(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 property.”

2. Mr. B.C Dutt, learned counsel for the opposing defendant, bases his opposition on two grounds. The first ground is that in order that S. 14(1) may apply, it must be proved that at the material date the Hindu female was in possession of the property. In the instant case, the plaintiff was not in possession of the property at the date of the Act coining into force—the property being in the possession of a Receiver appointed by this Court. Hence, the plaintiff cannot get the property to be allotted to her on partition as full owner. The second ground is that in any event, the preliminary decree, having already been passed in this suit, which prescribes a restricted estate to the plaintiff in the properties to be allotted to her, sub-s. (2) of S. 14 of the Act prevents the application of sub-s. (1).

3. To take the first point first, Section 14 is the section in the Act which purports to alter the Hindu Law as to Hindu Women's estate. Formerly she had limited ownership in properties. She is now under S. 14 of the Act to hold a property as full owner and not as a limited owner. This is a revolutionary change effected by S. 14 of the Act. Certain exceptions to the general rule as embodied in S. 14(1) are enumerated in sub-s. (2). It is contended, however, that apart from the exceptions set out in sub-s. (2), sub-s. (1) itself is not applicable unless the Hindu female is in “possession” of the property at the date of the commencement of the Act. Once she is in possession of the property, she will have an absolute title. If, however, she is not in possession of the property, she does not acquire absolute title under S. 14(1). It is contended that possession of the property is the test of the applicability of S. 14(1). In what properties a female Hindu will get full and not limited ownership is stated in the opening clause “any property possessed by a female Hindu”. A female Hindu may be in possession of a property in which she may have some sort of ownership or title. She may also be in possession of properties in which she has no ownership. She may, for example, be a tenant of a particular property or a licencee. In such cases, she has possession in the property, but no title as owner, absolute or limited. Nobody has ever contended that the Legislature did intend that a female Hindu would acquire ownership in properties which are possessed by her as a tenant or a licencee. Yet, if we give a plain meaning to the opening clause, then it must be held that mere possession by a female Hindu, entitles her to absolute ownership in the property under S. 14(1) of the Act, whether she is in possession of the same as a tenant or licencee without ownership—absolute or limited. This leads me to doubt that the Legislature used the phrase “possessed by a female Hindu” to mean that the property must be in possession of the female Hind in order that she may get the benefit of S. 14(1). Again, a Hindu female may have title to the property, but no possession, actual or constructive. Common example is the case of a property owned by a Hindu female which is in possession of trespasser, the trespasser not having perfected his title by adverse possession. Again, take the case of a Hindu female who has let out her land. So long as the tenancy continues the Hindu female may be said to be in constructive possession of the property through the tenant. After the determination of the tenancy, it the tenant wrongfully continues in possession, such possession of the tenant cannot be said to be her possession and she cannot be said to be in constructive possession of the property through a former tenant. The highest that can be said in such cases is that she has only the right to get possession but has no possession, actual or constructive. If possession is the test at the material date, then a Hindu female who has lost possession but whose right to possession is not lost, as indicated above, would not get absolute ownership under S. 14(1) but only limited ownership, as provided in the old Hindu Law. The moment, however, she gets back possession, by suit or otherwise, her limited ownership is converted into absolute ownership. I do not find any rhyme or reason in this. It is argued that the reason why the Legislature insists on possession as a condition for the application of S. 14(1) is to provide against cases in which the Hindu female lost possession either because she had transferred and conveyed her interest in the property to somebody else, or because a third party had acquired title by adverse possession in the property. In such cases the Legislature did not intend to give the Hindu female full ownership to the prejudice of parties who acquired title either by way of transfer from the Hindu female or by adverse possession. In either case, however, the Hindu female having no title as limited owner, cannot acquire the greater title of absolute ownership. I can find no conceivable reason why the Legislature should consider that a Hindu female would only acquire absolute ownership if she is in possession of the property.

4. My attention has been drawn to certain cases decided in this Court and other High Courts, in which the learned Judges proceeded on the footing that in order to attract S. 14(1) the Hindu female must be in possession. The cases cited are — Gostho Behari v. Haridas, decided by a Division Bench of this Court and reported in 61 Cal WN 325 : ((S) AIR 1957 Cal 557 (A); Venkayamma v. Veerayya, decided by a Division Bench of the Andhra Pradesh High Court, and reported in (S) AIR 1957 Andhra Pra 280 (B); Thailambal Ammal… v. Kesavan Nair…., decided by the Kerala Court and reported in AIR 1957 Kerala 86 (C); Laxmi Debi v. Surendra Kumar, decided by the Orissa High Court and reported in (S) AIR 1957 Orissa 1 (D); Hari Kishen v. Hira, decided by the East Punjab (Punjab) High Court and reported in AIR 1957 Punj 89 (E); and Babu Hanuman Prosad v. Musst. Indramati, decided by the Allahabad High Court and reported in AIR 1958 All 304 (F). All these are cases in which the female Hindu lost title in the property at the material date, she having neither title nor possession. In such cases, the Court held that the Hindu female did not acquire absolute ownership. The reason for the decision seems to be that at the material date the female Hindu was not in possession, either actual or constructive. In the Calcutta case, above referred to and reported in 61 Cal WN 325 : ((S) AIR 1957 Cal 557 (A), P.N Mookherjee, J. makes the following observation at page 329:

“The opening words ‘any property possessed by a female Hindu’ obviously mean that to come within the purview of the section, the property must be in the possession of the female concerned at the date of the commencement of the Act. They clearly contemplate the female's possession when the Act came into force. That possession might have been either actual or constructive or in any form recognised by law, but unless the female Hindu, whose limited estate in the disputed property is claimed to have Been transformed into absolute estate under this particular section, was at least in such possession, taking the word ‘possession’ in the widest connotation, when the Act came into force, the section would not apply………..”

Then, a few lines after, the learned Judge states:

“Title to the property having been lost, even the right to possession would be altogether gone.”

5. In the Andhra case, reported in (S) AIR 1957 Audhra Pra 280 (B), Viswanath Sastri, J., in delivering judgment, made the following observation at page 281 of the report:

“The previous law allowing only a Hindu woman's limited estate to a widow inheriting her husband's property has been abrogated. Though S. 14 of the Act is retrospective in so far as it enlarges a Hindu woman's limited estate into an absolute estate even in respect of property inherited or held by her as a limited owner before the Act came into force, its operation is confined to property in the possession of the female when the Act came into force. The word ‘possessed’ in S. 14 refers to possession on the date when the Act came into force. Of course, the possession referred to in S. 14 need not be actual physical possession or personal occupation of the property by the Hindu female, but may be possession in law. The possession of a licensee, lessee or mortgagee from the female owner or the possession of a guardian or trustee or agent of the female owner would be her possession for the purpose of S. 14. The word ‘possessed’ is used in S. 14 in a broad sense and in the context ‘possession’ means the state of owning ‘or having in one's hands or powers’. It includes possession by receipt of rents and profits. Even if a trespasser is in possession of land belonging to a female owner on the date when the Act came into force, the female owner might conceivably be regarded as being in possession of the land, if the trespasser had not perfected his title by adverse possession before the Act came into force. It is not however necessary for us to express an opinion on this point.”

Viswanatha Sastri, J. is apt to think that possession has been used in the broadest sense and means “the state of owning and includes the right to possession as in the case of people having title but dispossessed by a trespasser.”

6. All the above cases, as I stated before, are cases wherein the Hindu female lost title and not merely possession. What interest the Hindu female acquired if she had title at the material date but lost possession because of the wrongful act of a trespasser, their Lordships were not called upon to consider. It seems to me, however, that both in the Calcutta case and in the Andhra case the observations referred to seem to imply that the word “possession” would be given the widest possible interpretation so as to cover not merely possession in fact, but possession in law as well, which, again will not be confined to constructive possession but to cover cases where possession has been taken away by the wrongful act of a trespasser, though the right to possession still remains.

7. The words “possessed of” can be and in my judgment has been used in the instant case in another sense implying title or ownership. In this sense, the phrase is used not only by laymen. It is also used by men of law. In solemn documents drafted by very able professional men, when a person is said to the “possessed of various properties”, it means the person had title in the properties and not merely possession. This we often find in such solemn documents as a will drafted by lawyers. In the pleadings, while making out title to properties, the phrase “possessed of” is often used by experienced pleaders in the sense of title and not merely possession. In Wharton's Law Laxicon possession is defined as “the state of owning” or “having a thing in one's own hands or power.” This is quoted in the Andhra case, above referred to by Viswanatha Sastri, J. I am apt to think that the pnrase “possessed of in the opening clause of S. 14 has been used in the sense of ownership, which gives right to possession. There is no doubt that the section purports to deal with properly in which a Hindu female had limited ownership, and this section gives greater interest to the Hindu female in these properties. The concluding phrase in sub-s. (1) is a clear indication of this intention. Again if the intention of the Legislature was to exempt properties in which a Hindu female had limited title but not possession, then properly this exemption should have found its place in cl. (2), where the exemptions have been enumerated. In my judgment, the Legislature could not have intended that possession would be the test of the applicability of S. 14(1). Possession had nothing to do with the acquisition of absolute ownership in properties in which the Hindu female had limited ownership.

8. Assuming however that the other construction is right and in order that S. 14(1) may apply, the Hindu female must have possession in the property, then in my judgment the word ‘possession’ must be given the widest possible meaning. It should not be confined to possession, actual or constructive but must be extended to every form of possession known to law. A person having title or ownership has the right to possession though, in fact, he has not. A landlord, who has let out his land, has no possession in fact but constructive possession in law through the tenant. When tenancy is determined, say by a notice to quit, the tenant becomes a trespasser and the landlord can no longer be said to be in possession through the tenant. Then he has only the right to possession. So also in the case of a trespasser who is in wrongful possession without title. In all these cases the owner does not lose his possession in law because he has the right to possession. Section 14(1) covers all these cases as well. In the instant case the property is in possession of the Receiver. But the Receiver is in possession on behalf of the parties having title. The title of the plaintiff has been declared in the preliminary decree and possession of the Receiver in law is the possession of the plaintiff along with those whose title has been declared in the preliminary decree. I hold therefore that even if possession is considered to be the test of applicability of S. 14(1) of the Act the plaintiff was in possession of the properties at the material date and under S. 14(1) of the Act she has acquired absolute ownership in the property.

9. The next question to be considered is whether the instant case comes within sub-section (2) having regard to the fact that the preliminary decree was passed prior to the Act whereby the plaintiff is declared to have limited Hindu woman's right in the property. Sub-section (2) excludes the operation of S. 14(1) to the case of the property acquired under a decree or order of a Civil Court where the terms of the decree or order prescribe a restricted estate in such property. If the decree in sub-s. (2) includes a preliminary decree in the partition suit, then the instant case is fully covered by sub-s. (2) and S. 14(1) must be held not to apply to this case. Mr. Dutt argued that the “decree” has been defined in the Code of Civil Procedure and preliminary decree is as good a decree as a final decree. Indeed the preliminary decree is the real decree as embodying the final adjudication by the Court of the right of the parties, and all that the final decree does is to work out the preliminary decree. The Legislature must therefore have intended preliminary decree to be included in sub-s. (2) so as to bring the case out of the operation of S. 14(1). In Mr. Dutt's submission there is no warrant to restrict the meaning of the word “decree” in sub-s. (2) to final and not to preliminary decree. This point however was considered by Bachawat, J., in the recent case of Billbasini Datta v. Dulal Chandra Dutta reported in 100 Cal LJ 112 : (AIR 1958 Cal 472) (G). His Lordship held that the decree in sub-s. (2) meant only a final and not a preliminary decree in a partition suit. At page 115 (of Cal LJ): (at p. 474 of AIR) of the report his Lordship records his reasons for the decision in the following words:

“The preliminary decree does not confer on Billabasini a fresh title in lieu and in supersession of her antecedent title. Her one-fifth share in the properties was acquired and held by Billabasini by right of inheritance and continues to be so held by her under that right as declared by the preliminary decree.

Though the rights are crystallised and are conclusively determined by the preliminary decree, see Section 2, sub-Section (2) of the CPC, Lachmi Narain Marwari v. Balamakund Marwari, 51 Ind App 321 : 29 Cal WN 391 : (AIR 1924 PC 198) (H), the preliminary decree is a step in a pending litigation and the suit still continues (see Jadunath Roy v. Parameswar Mullick, AIR 1940 PC 11 : 67 Ind App 11 (I), and any alteration in the rights of the parties subsequent to the preliminary decree must be adjusted before the final decree is passed: see Krishna Lal Tha v. Mandeswar Jha, AIR 1921 Pat 296 (J), Madan Theatres Ltd. v. Dinshaw & Co., Bankers, Ltd., 50 Cal WN 102 : (AIR 1945 PC 152 (K)). Where by Legislation subsequent to the preliminary decree the rights of the parties are altered retrospectively, the Court must take this into account and adjust the rights of the parties suitably and if necessary by altering the preliminary decree.

It is true that Section 14 of the Hindu Succession Act, 1956 does not refer to pending litigations in express language. But on the face of it the Section is retrospective and applies to “any property possessed by a female Hindu whether acquired before or after the commencement of this Act.” The property which is the subject matter of the pending suit is within the clear ambit of the Section. There is no saving clause with regard to pending litigations. By necessary intendment the Section affects properties which are the subject matter of a pending litigation and the Court will give effect to this intention though there is no express reference to pending actions see K.C Mukherjee v. Mt. Ram Ratan Kuer, 63 Ind App 47 : (AIR 1936 PC 49) (L) and Hutchinson v. Jauncey, 1950-1 All ER 165 (M)”.

10. With the above decision and the reasons therefore given by My Lord I respectfully agree. In the result there will be an order in terms of paragraphs (a) and (b) of the notice. Parties will bear their own costs. The Commissioner of Partition is directed to act on a signed copy of this minute on the petitioner's attorney giving an undertaking that he will complete the order.

11. The Commissioner of Partition will not act for more than three weeks.

R.G.D

12. Order accordingly.