Judgement

SADASIVAM, J.:- This Letters Patent Appeal is against the judgment of Veeraswami J., as he then was, in S.A. No.369 of 1962, on the file of this court, reported in Santhana Kanchapalaya Gurukkal v. V. Subramania Gurukkal, ILR 1967-1 Mad 68. The decision has been dissented from by Ramamurti J. in Chellammal v. Nallammal, 1971-1 Mad LJ 439 at p.466.

2. The main question for consideration in this appeal is whether, by virtue of S.14(1) of the Hindu Succession Act, 1956, Sivakami Ammal, the decree-holder in O.S.576 of 1917, on the file of the District Munsif Court, Kancheepuram, became absolutely entitled to 9 acres 66 cents in Sirukayeripakkam village obtained by her under the compromise decree in the said suit for her maintenance. The appellant is the second defendant in the suit and he is the elder brother of the respondent-plaintiff and the first defendant is their father. Sivakami Ammal is the widow of a predeceased brother of the first defendant. She filed O.S. No.576 of 1917 on the file of the District Munsif Court, Kancheepuram, claiming maintenance at the rate of Rs.15 per month and arrears of maintenance Rs.540 against the present first defendant and the appellant herein, then a minor aged two years, represented by the first defendant as guardian. The respondent-plaintiff was not born at that time. Ex.A-1 is the certified copy of the suit register extract relating to O.S.576 of 1917, on the file of the District Munsif Court, Kancheepuram, and it is the only record available in respect of the proceedings in that suit. The terms of the compromise as found in Ex.A-1 are as follows:

(Original in Tamil omitted.)

Contrary to the terms of the compromise, Sivakami Ammal executed the settlement deed, Ex.B-1 on 3-1-1957 in favour of the appellant. Sivakami Ammal died on 23-6-1957. Thereafter the first defendant filed O.S. No.146 of 1958, on the file of the District Munsif Court, Kancheepuram, against the appellant herein to recover possession of the suit properties on the ground that the settlement deed Ex.B-1 was invalid. The present plaintiff was not a party to that suit. The suit ended in a compromise decree under which the first defendant obtained 2 acres 59 cents of land absolutely and recognised the absolute right of the appellant herein in respect of the remaining lands in the suit. Both the trial court and the appellate court have in the present case held that Sivakami Ammal had only a life estate in the suit properties and that by reason of S.14(2) of the Hindu Succession Act, she could not get absolute title under sub-section (1) of S.14 of the said Act and granted a decree in favour of the respondent-plaintiff for 3 acres 22 cents of land out of 7 acres 57 cents of land in the hands of the appellant. Veeraswami J. as he then was, dismissed the second appeal on the ground that the courts below formed the correct view as to the scope of sub-section (2) of S.14 of the Hindu Succession Act.

2A. In criticising the decision under appeal, Ramamurti J. has rightly observed in paragraph 56 of his judgment in 1971-1 Mad LJ 439 at p.465, that

"It would not be correct to describe a present valid enforceable right to maintenance of a Hindu widow against the joint family properties as in the nature of spes successionis"

But he proceeded to observe that

"It was not argued before the learned Judge that, at any rate, after the institution of the suit in 1917, claiming a charge over all the joint family properties, right in or title to immoveable property was in dispute and that the compromise was in settlement of a dispute in which rights over immoveable properties had accrued in favour of the widow before the allotment"

He relied on an unreported decision of the Supreme Court in Nirmalchand v. Vidyawanti, C.A. No.609 of 1965(SC) in support of his conclusion that a stipulation in an agreement between the widow on the one side and the surviving coparceners on the other, that the widow should enjoy the property for her lifetime without any powers of alienation, would not amount to prescribing a restricted estate, but the stipulation merely sets out the legal effect of the incidents to property allotted to women for their maintenance. There is nothing in the records in this case to show that Sivakami Ammal claimed a charge over the joint family properties for her maintenance claim. We have already pointed out that Ex.A-1 is the only available record in respect of the suit filed by Sivakami Ammal in 1917 and it only shows that she made a claim of Rs.15 per month for future maintenance and a lump sum of Rs.540 as arrears of maintenance. She has no doubt given a list of properties belonging to the joint family and out of those properties, 9 acres 66 cents of land were given to her to be enjoyed by her during her lifetime for her maintenance. But there is nothing in Ex.A-1 or the evidence in this case to show that she claimed any charge. The question whether Sivakami Ammal got a limited womans estate as known to Hindu law, or only a life estate, has to be determined on the evidence in this case and it cannot be decided on the strength of an inference made by the Supreme Court on different sets of fact in another case. We shall make this legal position clear in the course of our judgment.

3. Ramamurti J. has stated in paragraph 53 of his judgment at p.484 that the word limited owner in S.14(2) of the Hindu Succession Act is not used in the sense of a Hindu female necessarily linked up with the notion of a reversionary succession, but to denote a mere limited owner, in contrast to the notion of an absolute owner. As the learned Advocate for the appellant relied on this decision of Ramamurti J. we asked him whether he was going to urge that Sivakami Ammal got a limited estate known as a widows estate under the Hindu law, by virtue of the compromise decree evidenced by Ex.A-1, or some sort of a restricted estate, or merely a life estate. Though at the commencement of the arguments, the learned advocate for the appellant fairly stated that he could not claim that Sivakami Ammal got anything more than a restricted or a life estate under the compromise decree, he definitely stated at the conclusion of his arguments that Sivakami Ammal got a limited estate known as the widows estate under the Hindu law in the suit properties under the terms of the compromise decree.

4. The appellant has not put forward any specific plea at any stage of the litigation that his aunt Sivakami Ammal got a limited estate in the suit properties as a widows estate by virtus of the compromise decree evidenced by Ex.A-1, Ex.A-2 is the suit notice in which it is stated that the properties were set apart as provision for file maintenance of Sivakami Ammal in pursuance of the compromise entered into in O.S.576 of 1917, on the file of the District Munsif Court, Kancheepuram, in and by the terms of which, she was to enjoy the usufruct during her lifetime without any powers of alienation and they should revert to the family after her demise. The appellant in his reply notice Ex.A-3 has not questioned the above terms of the compromise decree, though he has pleaded that, by virtue of the settlement deed executed by Sivakami Ammal, he became entitled to the suit properties for the various reasons mentioned in the reply notice. Even in the plaint, it is stated that by virtue of the compromise decree, Sivakami Ammal was allowed to be in possession and enjoyment of the suit properties for her lifetime without any power of alienation and that they should revert to the joint family of the first defendant after her lifetime. There is no specific denial of these facts in the written statement of the appellant. In fact, there is no specific plea that Sivakami Ammal got a limited estate known as the widows estate in the properties allowed to be enjoyed by her under the compromise decree. It is true there is no specific recital in Ex.A-1 that the property should revert to the joint family of the first defendant. But apart from the fact that it should be deemed to be admitted on the pleadings in this case, it is also the legal result of the undisputed facts of this case.

5. In Venkatapaya v. Venkatasubbayya, (1906) 16 Mad LJ 352, a Bench of this court has held that in the absence of any evidence that lands set apart for the maintenance of a female member of tie family were not intended to be resumed on her death, the presumption is that they are resumable. In Krishnamaraiu v. Reddamma, 1951-1 Mad LJ 49 : (AIR 1951 Mad 608), Raghava Rao J. has held that in the absence of any evidence that lands set apart for the maintenance of a female member of a Hindu family were not to be resumed on her death, the presumption is that they are resumable. In Debi Mangal Prasad Singh v. Mahadeo Prasad Singh, (1912) ILR 34 (PC) All 234 at p. 242, the Privy Council has pointed out that while a family remains joint a woman has no right under the Mitaksbara for a specific share of the family estate and she is only entitled to maintenance, or in due course to her customary inheritance. It is observed in that decision that if the property is given to the mother by way of provision for her maintenance, it seems reasonable that when the necessity for her maintenance has ceased, the property should revert to the estate from which it was taken. In Suryya v. Bala Gangadhara Ramakrishna Reddi, 1947-2 Mad LJ 511 : (AIR 1948 PC 3), the Privy Council had to construe a maintenance grant in favour of a mother. From the clear terms in the maintenance deed their Lordships entertained no doubt that the document was a pure maintenance grant, purporting as it did, to make a provision for the mothers maintenance in consonance with what would be her rights under the general principles of Hindu law. It is observed in the decision that a maintenance grant to a female member of a Hindu family is ordinarily for the life of the grantee and that she has no right to alienate the property and after her death the property comes back to the joint family out of whose assets it was carved. Consequently, it has been held that the words "after your lifetime the said property should again pass to my family" in the maintenance deed are capable of a plain and natural interpretation in keeping with the ordinary notions of Hindus and the principles of Hindu law. The Privy Council has pointed out that the plain and natural meaning of the maintenance deed accords with what the members of the family appear to have understood to be the nature and effect of the document.

6. The nature of the estate obtained by a woman under a compromise or a family arrangement is dealt with in paragraph 132 at page 171 of Mullahs Hindu Law, 13th Edn. It is pointed out in this passage that there is no presumption that the woman takes only a life estate. There is no presumption that properties given to a female are given only with limited rights and not with absolute rights. But, as pointed out by Varadachariar J. in S.A. No.610 of 1931, on the file of this court, though this statement of law is in a sense, indisputable, the exceptions to it are so many that it is perhaps not safe to attempt to lay down any general rule one way or the other. The learned Judge has pointed out in that decision that where the matter turns on the construction of a document, it is possible to say that courts have leaned towards giving the widest interpretation to the words used, independently of the sex of the grantee. Ultimately he proceeded to decide the case on the footing that there is no question of burden of proof in these matters and the court has to determine the quantum of interest which the woman has, independently of particular presumption or any particular view of burden of proof and this principle was affirmed in Letters Patent Appeal as seen from the decision reported in Mangamma v. Dorayya, ILR (1937) Mad 335 : (AIR 1937 Mad 100). It is clearly stated in paragraph 132 at page 171 of Mullahs Hindu Law, 13th Edn. that the nature of the estate taken by a woman under a compromise or a family arrangement depends on the terms of the deed and the other circumstances which will naturally vary from case to case.

7. In Parshottam v. Keshavlal, AIR 1932 Bom 213, the nature of the estate obtained by a widow under a compromise decree has been considered. The compromise decree provided that the widow should enjoy the rents realised from certain houses and shops during her lifetime and that after her death, they should revert to the adopted son. It was held that the estate taken by the widow in the houses and shops was not analogous to a Hindu womans estate, that the right given to her under the compromise was really for the purpose of maintenance and that the remaining rights in the property were being vested in the adopted son as the owner, subject to the widows life interest.

8. The distinction between a widows estate or a womans estate and a life estate is too well known to require elucidation and it is clearly pointed out at page 194 paragraph 178 of Mullahs Hindu Law, 13th Edn. As stated by the Privy Council in Janakiammal v. Narayanaswami, ILR 89 Mad 634 : (AIR 1916 PC 117), the right of a holder of a widows estate or a womans estate is in the nature of a right to property, her possession is that of a owner; her powers in that character are, however, limited but so long as she is alive, no one has any vested interest in the succession.

9. There is no claim in this case that under the compromise decree evidenced by Ex.A-1 Sivakami Ammal got an absolute estate. In fact, S.14(1) of the Hindu Succession Act was invoked by the appellant to claim an absolute estate in the suit properties as Sivakami Ammal did not get an absolute estate under the compromise decree. We have already pointed out that the appellant has not put forward a definite plea that under the terms of the compromise decree evidenced by Ex.A-1, Sivakami Ammal got a limited estate known as a widows estate or a womans estate under the Hindu law. Both the trial court and the lower appellate court have found that Sivakami Ammal got only a life estate in the suit properties under the compromise decree. The terms of the compromise taken along with the surrounding circumstances under which the compromise decree came into existence leave no room to doubt that Sivakami Ammal got nothing more than a life estate in the properties allowed to be enjoyed by her during her lifetime. Sivakami Ammal was a young childless widow at the time of the compromise and she died about 40 years after the compromise. She claimed arrears of maintenance of Rs.540 and future maintenance at the rate of Rs.15 per month. There is nothing to show that she claimed any charge over the joint family properties though she described them in the plaint evidently to justify the quantum of maintenance claimed by her. Ramamurti J. has made an erroneous assumption about it at p. 466 of the decision in 1971-1 Mad LI 439. He has observed on the strength of an unreported decision of the Supreme Court that a stipulation in an agreement between the widow on the one side and the surviving coparceners on the other that the widow should enjoy the property for her lifetime without any powers of alienation merely sets out the legal effect of the incidents to property allotted to women for their maintenance. But we cannot take the said circumstance alone ignoring the other facts and circumstances of the case. It is clear from what we have already stated that the parties to the compromise decree intended that after the enjoyment of the suit properties by Sivakami Ammal during her lifetime without any powers of alienation, they should revert to the joint family of the parties to the suit. If a grant had been made in identical terms, as in the compromise decree evidenced by Ex.A-1 in favour of a male member of a joint family, there could not be any difficulty in inferring that he gets only a life estate in the properties. Thus, on a construction of the compromise decree, independently of the sex of the grantee, it is clear that under the terms of the compromise only a life estate was given to Sivakami Ammal. Having regard to the nature of the suit filed by Sivakami Ammal and the object of the parties, namely, to make a provision for the maintenance of Sivakami Ammal during her lifetime, there can be no doubt that only a life interest was intended to be given to Sivakami Ammal under the terms of the compromise evidenced by Ex.A-1.

10. The appellant claims an absolute right in the suit properties on the ground that his transferor Sivakami Ammal became the full owner of the suit properties by virtue of S.14(1) of the Hindu Succession Act. But under S.14(2) of the said Act, which is an exception to S.14(1), where a female Hindu acquires property under a decree of a civil court prescribing a restricted estate in such property, she cannot invoke S.14(1) of the Act to claim an absolute estate. In the judgment under appeal Veeraswami J., as he then was, has observed that, at first sight, sub-section (2) of S.14 of the Hindu Succession Act does not seem to exclude from its purview even cases of acquisition pursuant to a pre-existing right. But in view of the current judicial opinion that sub-section (2) of Section 14 has no application to declaratory decrees and out of deference thereto, he did not propose to differ from those decisions, but proceeded to find that it is not possible to accept the contention that when a female Hindu is given property in lieu of maintenance, it is merely declaratory of a pre-existing right. Ramamurti J. has stated in paragraph 55 of his judgment that property which is given in lieu of maintenance cannot be said to be acquired within the meaning of S.14(2) of the Act as if right to maintenance had no vestige or a semblance of right to joint family properties. Ramamurti J. has dissented from the decisions of several single Judges of this court in arriving at this conclusion. It was not strictly necessary for him to decide this question as the respondent Nallammal in that case claimed absolute rights in respect of the properties in her possesion by virtue of S.14(1) of the Hindu Succession Act and there was no scope for invoking Section 14(2) of the Act in that case as she got the properties under an oral arrangement. In paragraph 55 of his judgment the learned Judge has pointed out that if the arrangement is oral. Section 14 will not apply, evidently S.14 has been mentioned by mistake, instead of S.14(2). It is clean from that judgment that there was concurrent finding of the trial court and the appllate court that the properties were given to Nallammal towards her maintenance claim without any express stipulation or a condition attached thereto. There could be no difficulty in that case to invoke Section 14 (1) of the Hindu Succession Act, without in any way considering the scope of S.14(2) of that Act, which did not apply on the facts of that case.

11. The nature and extent of the right to maintenance of a widow of a coparcener against the manager of the joint family in which her husband was a member have been the subject-matter of several decisions. In Srinath Das v. Probodh Chunder Das, (1910) 11 Cal LJ 580 at p.587, Mookerjee J. in delivering the judgment of the Bench has pointed out that a Hindu wifes right to maintenance has been attributed to a kind of identity with her husband in proprietary right, though her right may be of a quite subordinate character, and that it is by virtue of this right that she gets a share equal to that of a son when partition takes place at the instance of male members. But in this State a Hindu widow had no right to claim partition till that right was conferred under the Hindu Womens Right to Property Act, 1937. It has been observed by Mookerjee J. in the above decision that having regard to the above principles it is impossible to hold that a Hindu widow had no interest whatsoever in the property. This principle could be invoked in this State in respect of cases arising in this State after the Hindu Womens Right to Property Act, 1937 came into force. In Lingayya v. Kanakamma, 28 Mad LJ 260 : (AIR 1916 Mad 444) it has been held that the private means of a widow is not relevant for rejecting her claim for maintenance out of her husbands estate. The following observations made in that Bench decision have been quoted and followed in later decisions:

"The wives of the male coparceners in a Hindu family are not entitled to equal shares with the males in the family estate, nor do they take their husbands shares by representation on their death, but in place thereof they are entitled to a portion of their estate for their enjoyment during their lifetime sufficient to maintain them in comfort according to the means of the family. This is an absolute right due to their membership in the family and does not depend on their necessity arising from their want of other means to support themselves."

This is referred to as a survival of the rights once possessed by the wife as found in the Sanskrit texts to claim an equal share with the sons when her husband effected a partition. The above decision has been followed in Kodandarami Reddi v. Chenchamma, 59 Mad LJ 531 : (AIR 1930 Mad 479) and in Annapoornmma v. Veeraraghava Reddi, 51 Mad LW 39 at p.402 : (AIR 1940 Mad 547). In Secretary of State v. Ahalyabai, AIR 1938 Bom 321 at p.323, it is pointed out that under the Hindu Law, 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 and that, though it may be that in the technical language it may not fall within the definition of charge under Section 100 of the Transfer of Property Act, the Hindu Law has always regarded the widows right as a burden on the property of the joint family. As pointed out at page 822 of Maynes Treatise on Hindu Law and Usage, 11th Edn. the obligation of the manager of a joint family to maintain the widow of a coparcener is dependent on his possession of joint family properties. In papgraph 542 at page 538 of Mullahs Hindu Law, 13th Edn. it is clearly stated that the manager of a joint Mitakshara Hindu family is under a legal obligation to maintain all male members of the family, their wives and their children and that on the death of any one of the male members, he is bound to maintain his widow and children and that the obligation to maintain these persons arises from the fact that the manager is in possession of the family property. But the nature of the right is described in paragraph 569 at page 556 of the same book in the following words-

"The claim even of a widow, for maintenance is not a charge upon the estate of her deceased husband, whether joint or separate until it is fixed and charged upon the estate. This may be done by a decree of court, or by an agreement between the widow and the holder of the estate, or by the will by which the property was bequeathed. Therefore, the widows right is liable to be defeated by a transfer of the husbands property to a bona fide purchaser for value without notice of the widows claim for maintenance. It is also liable to be defeated by a transfer to a purchaser for value even with notice of the claim, unless the transfer was made with the intention of defeating the widows right and the purchaser had notice of such intention. In fact, a widows right to receive maintenance is one of an indefinite character which, unless made a charge upon the property, is enforceable only like any other liability in respect of which no charge exists. But where maintenance has been made a charge upon the property and the property is subsequently sold, the purchaser must hold it subject to the charge."

12. The same principle has been incorporated in Section 27 of the Hindu Adoptions and Maintenance Act and it is similar to that contained in Section 39 of the Transfer of Property Act.

13. The Hindu Womens limited estate is abolished by the Hindu Succession Act and any property possessed by a female Hindu however acquired is now held by her as her absolute property and she has full power to deal with it and dispose of it as she likes. Vide page 761 of Mullahs Hindu Law, 13th Edn. Thus there can be no doubt that the Parliament wanted to abolish a widows estate or a womans estate known as limited estate In respect of properties in the possession of a Hindu female. sub-section (2) of S.14 of the Hindu Succession Act is intended to preserve the rights of the transferor under the general law. But as pointed out by Veeraswanii J. as he then was, in the judgment under appeal, there is the current judicial opinion that sub-section (2) of Section 14 of the Hindu Succession Act has no application to declaratory decrees, that is where the female had interest in the property prior to her acquisition of the property in one or other of the modes mentioned in the said sub-section. The learned advocate for the appellant was not able to show any decision recognising the principle enunciated by Ramamurti J. in 1971-1 Mad LJ 439, that if a property is given to a Hindu female in lieu of maintenance in recognition of her pre-existing right for maintenance. S.14(2) of the Hindu Succession Act will not apply. On the other hand, number of decisions of this court and other courts have recognised the principle that property obtained by a Hindu female in lieu of maintenance is an acquisition of property within the meaning of S.14(2) of the Hindu Succession Act.

14. The object of sub-section (2) of S.14 of the Hindu Succession Act is, as pointed out at page 829 of Mullahs Hindu Law, 13th Edn., to confine the language of sub-section (1) to its own subject and to stress its co-existence with sets of provisions in other enactments such for instance as the Transfer of Property Act and the Indian Succession Act which may be applicable to Hindus. The object of the sub-section is also to make it abundantly clear that a restricted estate can even after the commencement of the Act come into existence in case of interest in the property given to a female Hindu by operation of transactions inter vivos, by testamentary disposition, by decree or order of a civil court or under an award. The expression "acquired" in sub-section (2), has been construed differently from the same word in sub-section (1), as meaning that the female Hindu did not have any interest in the property prior to its acquisition by her, that is to say, the operation of the sub-section (2) is confined to cases where the title of the transferor to the property was not really in dispute.

15. In Sasadhar Chandra v. Tara Sundari, AIR 1962 Cal 438, it has been observed that in the context of the explanation given to sub-section (1) of S.14 of the Hindu Succession Act, the word acquired must be given the widest possible connotation, that the explanation to subsection (1) being restricted to it, the Legislature could not have intended to extend its application to sub-section (2), that the word acquired in sub-section (2) will have a restricted meaning and that a property is said to be acquired when prior to the acquisition the person acquiring it had no interest or title to the property. This is the decision with which Ramamurti J. has started his discussion on this aspect of the case in 1971-1 Mad LJ 439 at p. 447. But it is clear from the Calcutta decision that it was held on the facts of that case that the womans estate given to the daughter in a suit for the administration of her fathers estate was in recognition of her right as the heir and hence sub-section (2) of Section 14 of the Hindu Succession Act would not apply and that the limited estate was enlarged by sub-section (1) of that Act. In Gadam v. Venkataraju, AIR 1985 Andh Pra 66, a Bench of the Andhra Pradesh High Court held that a deed of maintenance executed by the adopted son in favour of his adoptive mother giving her a limited estate did not fall under subsection (2) of S.14 of the Hindu Succession Act as the adoptive mother asserted her pre-existing rights as the heir of her husband and questioned the adoption itself. The decision of a single Judge of that High Court in Chinnakka v Subbamma, 1968-1 Andh WR 65, purports to follow the above Bench decision, but surprisingly lays down that, though under Ex.A-23 in that case, defendants 1 and 2 and Lakshmakka were given a life estate in satisfaction of maintenance claims made against the adopted son, the life estate was enlarged into an absolute one under S.14(1) of the Hindu Succession Act. But Alagiriswami J., has rightly pointed out in Pattabhiraman v. Parijatha Ammal, 1970-2 Mad LJ 331, at p.333 : (AIR 1970 Mad 257), that this decision where the widow of a Hindu coparcener got certain properties with a life estate in lieu of her maintenance. Section 14(1) of the Hindu Succession Act applies and not Section 14(2) cannot be said to lay down the law correctly.

16. In Sampathkumari v. Lakshmi Ammal, 1962-2 Mad LJ 464 : (AIR 1963 Mad 50), a Bench of this Court has held that Section 14(2) of the Hindu Succession Act cannot be invoked to restrict the right of widows of the last male holder on the ground that they had entered into a partition deed with their daughters and agreed to take a restricted estate. It has been held in that decision that it cannot be said that the widows acquired the properties only under the partition deed for the simple reason that they had acquired rights previously by inheritance as widows of the last male owner. It has also been held in that decision that the word "acquired" in sub-section 2 of Section 14 means that prior to the acquisition the widows could not have had any interest in the properties whatever. In Rangaswami Naicker v. Chinnammal, 1964-1 Mad LJ 374 : (AIR 1964 Mad 387), a Bench of this Court had to decide the validity of a Will executed by one Angammal, who got a restricted estate under a compromise decree of the year 1952. It was urged in that case that Angammal got a restricted estate under the compromise decree and that the case would fall under Section 14 (2) of the Hindu Succession Act. But it was held in that decision that as Angammal became enlitled to a half share in the properties of the joint family of her husband by virtue of the provisions of the Hindu Womens Rights to Property Act of 1937, she had a pre-existing title, which was recognised by the compromise decree and that she did not acquire title within the meaning of Section 14(2) of the Hindu Succession Act for the first time.

17. These are all clear cases where a Hindu woman bad a pre-existing title prior to the date of the decree or instrument, unlike the present case in which the widow Sivakami Ammal had merely a maintenance claim and not any title to the suit properties.

18. In V.S. Reddi v. Tulasamma, AIR 1969 Andh Pra 300, Satyanarayana Rao, J. had to deal with a case like the present one. The first defendant in that suit obtained a money decree for maintenance with a charge on the joint family properties of her deceased husband and the maintenance decree was recorded as fully satisfied under a compromise entered into by her with her husbands brother and under the terms of the compromise, she was given half the family properties to be enjoyed by her during her lifetime, subject to the condition that they should revert back to the plaintiff, on her death. The first defendant in that suit made several alienations after the Hindu Succession Act came into force on the ground that she became entitled to absolute rights by virtue of Section 14(1) of the Act. It was held in the decision that the first defendant in that suit got title to the properties given to her under the instrument of compromise for the first time under the compromise and that the case fell under Section 14(2) of the Act.

19. In Gurunadham Chetti v. Navaneethammal, 1967-1 Mad LJ 454 : (AIR 1967 Mad 429), Natesan, J. has held that, for sub-section (2) of Section 14 of the Hindu Succession Act to apply, it is an essential condition that the instrument which limits or restricts the estate should itself be the source or foundation of the females title to the property and that if the instrument, be it a decree or award or deed of partition, merely declares the preexisting title of a Hindu woman to any particular property, the case will be governed by sub-section (1) and not by sub-section (2) of the section. He has held that the right of maintenance, even if charged over a specified property, does not by itself amount to a transfer of the property but only creates a right of payment over the property and that if she acquires a property in lieu of maintenance under an instrument, she acquires right in the property for the first time under it and Section 14(2) of the Act will apply. Alagiriswami, J. has followed this decision in Dharma Udayar v. Ramachandra Mudaliar, 1969-1 Mad LJ 181 and in Pattabhiraman v. Parijatha Ammal, 1970-2 Mad LJ 331 : (AIR 1970 Mad 257).

20. We are unable to appreciate the grounds on which these decisions have been distinguished by Ramamurti, J. in 1971-1 Mad LJ 439. The fact that a decree or instrument specifically mentions the persons who are entitled to the vested interest after the lifetime of the widow is not really decisive on the matter. The important question for consideration is, whether under the decree or instrument, a restricted estate is given to the maintenance holder. It is true that after 1937 a widow of a coparcener can claim rights in the joint family property of her husband by virtue of the provisions contained in the Hindu Womens Right to Property Act and this has been considered by Natesan, J. in the decision referred to above. But, in a case like the present one, where a Hindu female became entitled only to maintenance against the joint family properties of her husband on account of her husband having died prior to the Hindu Womens Rights to Property Act of 1937 came into force, it could not be considered that the compromise decree or other instrument conferring on her an interest in the property did not do so for the first time in order to exclude the operation of Section 14(2) of the Hindu Succession Act.

20A. The following passage at page 219, para 279, of the book "A Critique of Modern Hindu Law" by Derrett is relevant for the present discussion:

"Common sense would suggest that when, while compromising litigation, or otherwise, male members make a grant of land or other income producing property to a woman for her maintenance, the land should revert to the grantors or other heirs when the woman dies. We know the manager is authorized to make absolute grants for maintenance, but when he does not do so the presumption must be that the grant reverts on womens death. In other cases the presumption will be no less strong. How can we reconcile ourselves to the notion that when a grant for maintenance has been deliberately offered and accepted, the lady can, simply by reliance upon Section 14 of the Hindu Succession Act, claim to have an absolute and transferable interest in it? It is hardly sufficient to explain this to point to the words of Section 14(1) in which the property that shall be held as full owner includes "moveable or immoveable property acquired by a female Hindu....in lieu of maintenance". Can it seriously be claimed that Parliament virtually prohibited, retrospectively and prospectively, a grant for maintenance of any other tenure than an absolute one?"

20B. It is true Derrett has purported to give his own ideal interpretation of Section 14(2) of the Act on the principle of construction mentioned at page 26 of his book that it is essential that law should correspond to facts, though he has observed in the foot note at page 27 of the book that "it has not always proved possible to follow this apparently simple advice."

20C. For the foregoing reasons, we are unable to follow the decision of Ramamurti, J. in 1971-1 Mad LJ 439. We uphold the decision of Veeraswami, J. as he then was in the judgment under appeal that sub-section (2) of Section 14 of the Hindu Succession Act clearly applies to the facts of this case.

20D. But, irrespective of the question whether S.14(2) of the Hindu Succession Act could be invoked in this case or not, the appellant could succeed only if he is able to show that on the terms of S.14(1) of the said Act, Sivakami Ammal became entitled to an absolute right in the suit properties. In Thayammal v. Selammal, 1971-2 Mad LJ 286 : (AIR 1972 Mad 83), we have referred to the decision in Venkat Narasing Rao v. Lachmi Bai, 1964-2 Andh WB 383 where it has been held that mere possession of properties is not sufficient to attract the operation of Section 14(1) of the Hindu Succession Act, that it is possession as limited owner that the section contemplates and that if a Hindu female is in possession of a property other than as limited owner thereof, Section 14(1) of the Act cannot successfully be invoked and she does not become the full owner. We relied on the decision of the Supreme Court in Eramma v. Verruppana, AIR 1966 SC 1879, where it has been held that Section 14(1) of the Hindu Succession Act contemplates that a Hindu female, who in the absence of this provision, would have been limited owner of the property, will not become full owner of the same by virtue of that section. The Supreme Court has pointed out in this decision that the object of the section is to extinguish the estate called limited estate or widows estate in Hindu Law and to make a Hindu Woman, who under the old law would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holders. It is one thing to extinguish the rights of reversionary heirs who only have spes successionis. But it is quite another thing to take away such vested rights of others. If the legislature purports to take away such vested rights, it will infringe the fundamental rights to property given under the Constitution. Ramamurti, J. was fully aware of the fact that his interpretation of Section 14(1) of the Hindu Succession Act would result in expropriation of the rights of persons having vested interest in the properties in the possession of the Hindu family, as seen from the following passage in paragraph 66 of the decision (page 470):-

"On the other side, it might equally be argued that the object of the Act is not to interfere with contracts and grants and Section 14(1) is not expropriatory and there cannot be confiscation, as it were, of others properties merely because the person in possession happens to be a female and she got the property in lieu of maintenance. It is easy to visualise cases which may give rise to such problems involving difficulties to determine which side of the line the case falls. But it must be borne in mind that absolute logic and consistency cannot be maintained in the operation of the provisions of this Act all throughout and in particular Section 14, when this is essentially a legislation of social reforms involving extinguishment, fresh distribution and modification of property rights."

Thus on our finding that Sivakami Ammal had only a life estate under the compromise decree of 1917, the appellant cannot claim enlargement of the said right into an absolute one by invoking S.14(1) of the Hindu Succession Act. Even on this ground, the appeal should fail.

21. In the result, the decree and judgment in S.A. No.369 of 1962, on the file of this Court, are confirmed and the Letters Patent Appeal is dismissed with costs.

Appeal dismissed.