Gopisetti Kondiah & Others v. Gundi Subbarayudu And Another

Jaganmohan Reddy, C.J:— The Second Appeal has been referred to us by our learned brother Gopal Rao Ekbote, J. as raising some important questions of law relating to the application Page: 301of section 14(1) and (2) of the Hindu Succession Act, and also in view of the fact that an L.P.A against the judgment of Chandrasekhara Sastry, J, raising similar questions was also pending before the Bench.

2. The facts in the Second Appeal are:

The plaintiff Konda Parvathamma, as the widow of one Potharaju. Potharaju executed a will. Ex A 1 dated 25-12-1918, a few days before his death. He died leaving him surviving his mother. Chellamma, and the plaintiff, his widow. After his death, the will was presented for registration on 5-2-1919 by Chellamma. Under the terms of the will, the property bequeathed was to be divided between the mother and the wife after the wife attains majority; that after the mother's death, the property was to be enjoyed absolutely by the wife. There was also a provision for payment of debts by selling the properties. It may be stated that the property that fell to the share of Chellamma was gifted away under Ex. B-3 dated 14-10-1956, after the Hindu Succession Act came into force on the 17th June, 1956 to her brother's daughter's sons, the 1st and 2nd defendants in the suit, Parvathamma filed the suit for recovery of possession of P items of land in Kollpara of a total extent of Ac. 1-34½ cents, two items of house site and 45 cents-of land in Bommuvanipalem alleging that the gift deed executed by Chellamma in favour of defendants 1 and 2 was not binding on her. She impleaded defendants 3 and 4, as they are said to be in possession of items 9 and 10 of the plaint schedule Defendants 1 and 2 contended that the items of property given to Chellamma were towards her maintenance and residence with rights of sale, gift, etc in the same, that the rights of Chellamma even otherwise were enlarged under the Hindu Succession Act, that even under the alleged will. Chellamma had absolute rights of sale gift etc., and that the testator under the alleged will had no disposing power to indicate the mode of succession after Chellamma's death having had conferred an absolute right and put the plaintiff to the strict proof of the truth and validity of the will.

3. The trial Court found that Potharaju executed the will Ex. A-1 in a sound and disposing state of mind. On the second issue, namely, whether the plaint scheduled property was given to late Chellamma towards her maintenance with absolute rights and if not whether the gift dated 4-10-1956 by Chellamma to defendants 1 and 2 is valid and binding on the plaintiff, it held that Chellamma did not take the property under the will with absolute rights, that the will prescribed a restricted estate and that the gift evidenced by Ex. B 3 does not bind this plaintiff. In this view, the plaintiff's suit was decreed. An appeal filed against this judgment was also dismissed by the Additional District Judge, Guntur. In the Letters Patent Appeal, one Chinna Kondanna who died in 1918, left him survining two wives. The first wife Vengamma had two sons, Subbaiah and China Obulapathi. Subbaiah had a son, Kondayya, who is the first plaintiff in the suit Plaintiffs 2 to 5 are the sons of China Obulapathi. The 6th plaintiff is Page: 302the widow of China Obulapathi and mother of plaintiffs 2 and 5, The 1st defendant in the suit, also Vangamma, was the Second wife of Chinna Kondanna. After the death of Chinna Kondanna in 1918, Kesamma, his mother, acting as the guardian of Chinna Kondanna's minor sons, executed a maintenance deed Ex. A-1 dated 12-2-1921, in favour of the 1st defendant settling on her 18 cents of land and a house in Nandyal for her maintenance, she being the step-mother of the minors. Ever since then, the 1st defendant was in possession of these 18 cents of land and the house. On 25-11-1957 however she sold the house under Ex. A-2 to the 2nd defendant, i.e, after the Hindu Succession Act came into force. The plaintiffs filed the suit praying for a declaration that the alienation made by the 1st defendant in favour of the 2nd defendant is not valid and binding on the plaintiffs after the life time of the 1st defendant. It was their case that the 1st defendant had only a life interest in the property settled on her under Ex. A-1 and that, therefore, any alienation made by her is invalid beyond her life-time and that the plaintiffs, who are her step-sons, are entitled to the same. On the other hand, the defendants contended that by reason of section 14(1) of the Hindu Succession Act, the limited interest which the 1st defendant had in the property settled under Ex. A-1, became an absolute interest. The plaintiffs contend that the limited interest of the 1st defendant conferred on her under Ex. A-1 did not become a full interest in view of sub-section (2) of section 14 of the Act.

4. The trial court held that the 1st defendant became a full owner under section 14(1) and therefore, the plaintiff are not entitled to the declaration asked for and dismissed the suit. On appeal by the plaintiffs, the District Judge, Kurool held that the 1st defendant acquired the property only under Ex. A-1 and that therefore, in view of sub-section (2) of sec. 14. sub-section (1) of sec, 14 is not applicable and that the 1st defendant continues to be only a limited owner and in that view, reversed the decision of the trial court and gave decree in favour of the plaintiffs. In the second appeal, Chandrasekhara Sastry, J. applying the principle in a decision of a Bench of this Court in Peddayya v. Venkataraju 1964-II A.L.T 371 , 1964-II An. W.R 470 held that the property was given to the 1st defendant in recognition of her pre-existing rights of maintenance and consequently she became a full owner of the property settled on her, and that sub-sec, (2) of sec. 14 does not apply to this case. In that view, he allowed the second appeal, reversed the decree and judgment of the District Judge and restored that of the trial Court.

5. In both these cases, the question which falls for determination is: what is the scope and ambit of section 14(1) and 14(2) of the Hindu Succession Act, 1966 (herinafter referred to as the ‘Act.’). Sec. 14 of the Act reads thus:—

Sec 14(1) “Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act,” shall be held by her as full owner thereof and not as a limited owner.

Explanation:— In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever and also any such property held by her as stridhana immediately before the commencement ??? this Act.

(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.”

6. We may state that prior to the Act, under the Hindu Law the right of a Hindu female to hold and dispose of property was limited. Even in respect of her stridhana property, there was great divergence of authority. The ancient texts purported to make and made devolution dependent on whether the property was Savdayika and non-Savdayika but without comprehensive signification. As stated by Mulla in his Hindu Law, “Absolute power of alienation was not regarded, in case of a female owner, as a necessary concomitant of the right to hold and enjoy property, and it was only in case of property acquired by her from particular sources that she had full dominion over it.” The right to hold property by a Hindu female, whether a widow or not, was known as widow's estate or an estate which has similar incidence as that of a, widow's estate respectively which meant, no doubt, generally that while she had power to dispose of her property for necessity or payment of debts etc., she could not otherwise alienate it beyond her life time.

7. Where a Hindu woman inherits the ordinary property of a male such as her husband, father, son etc, or the stridhana of a female, she takes a limited estate according to the Bengal, Benares, Mithila and Madras schools, and on her death the property passes not to her heirs but to the next heir of the person from whom she inherited it. According to the Bombay School also, as regards property inherited by a female from a male, those who are inroduced into the gotra or family of the deceased owner by marriage, such as the deceased's wife mother, father's mother etc., take a limited interest and on her death it passes to the next heir of the male from whom she inherited it, while other female heirs being females born in the family, such as the daughter, sister, brother's daughter, sister's daughter etc., take an absolute estate. Property inherited by a woman from a female, according to the Bombay School becomes an absolute estate, The expression “limited estate” which is also known as “widow's estate” or “woman's estate” or an estate having similar incidence, is generally used in contradistinction to stridhana or absolute estate, (Vide Mulla's Hindu Law.)

8. A Hindu female can acquire property by inheritance, by devise or under a will or obtain a share on partition or in lieu of maintenance or arreass of maintenance or by gift from any person whether a relative or not before, at or after her marriage. She can also acquire property by her own skill or exertion or by purchase Page: 304or she can prescribe by adverse possession a title. Property obtained by a Hindu, woman as a share on partition has different incidence according to different schools. According to the Dayabhaga School, the share allotted to a mother or father's mother on partition of joint family property is said to be given to her by way of prevision for her maintenance for which the family property is bound. It is not therefore, her stridhana and it does not pass on her death to the stridhana heirs, but reverts to the sons or grandsons out of whose portion it was taken out, Even in cases governed by Mitakshara as well as Mithila schools the share allotted to a woman on partition is not her stridhana, but stands on the same footing as property inherited by her from he husband and on her death it passes to the sons of grandsons. As regards the Madras School, the practice of allotting a share to fem???les on partition bad become obsolete.

9. It may also be stated that there is no presumption that a Hindu female takes only a life estate in property obtained under a compromise or a family arrangement, but the nature of the estate she takes would depend upon the terms of the deed and the other circumstances. It may be that she may take an absolute estate in the property allotted to her even where there are no words in the document, deed or award to narrow her interest. Much depends, as we have already stated on the circumstances of the case, the nature of the dispute the claim of the female and the terms of the compromise under which she obtains the property, it may also be pointed out that property which a Hindu Woman whether maiden or a widow acquires by way of gilt or bequest from relations or from strangers, or by mechanical arts, or by wav of maintenance, or by adverse possession, or under a compromise, constitutes her stridhana, except (i) according to the Bombay School, property inherited by her as a widow, mother, grandmother etc and according to other schools, all property inherited by her in any capacity, and (ii) property obtained by her on partition. In the case of a maiden inheriting property it is her absolute property. There is also no presumption where a widow is found in possession of property of the acquisition of which no account is given, that it was her husband's property nor is there any presumption that the money with which a widow in possession of her husband's estate, makes a purchase of property came out of the saving from her husband's estate. Generelly where a woman has been in possession of property, there is no presumption that she had only a limited estate.

10. It is also settled that a husband can by gift inter vivos or by will confer upon his widow an absolute estate in his immoveable property and it is only a question of construction as to what he intended to give or bequeath. In Shaligram v. Chranjit Lai1. Sir Lancelot Sanderson delivering the judgment of Their Lordships of the Privy Council referring to the supposed rule of Hindu Law that in the case of immovable property given or devised by a husband to his wife, she had no power to alienate unless the power of alienation was conferred upon her in express terms observed at page 289:

“It has been held by decisions of this Board that proposition was not sound and that: “If words were used conferring absolute ownership upon the wife, the wife enjoyed the rights of ownership without their being conferred by express and additional terms, unless the circumstances or the context were sufficient to show that such absolute ownership was not intended.”

11. In to far as the right of a Hindu woman to maintenance is concerned, it is necessary at this stage to poin out one other basic concept. A Hindu woman has a right to be maintained by the husband or from her husband's is property or Hindu joint family property But that is merely a right to receive maintenance out of the properties without in any way conferring on her any right title or interest therein. It is not a definite right, but is capable of being made a charge on specific properties by agreement, decree of Court or award compromise or otherwise. It is also significant to note that section 39 of the Transfer of Property Act provides for enforcement of a right of maintenance from the profits of immovable properties even against transferees with notice of the right or without consideration (See) Chandramma v. Venkata Reddi 1953 A.L.T 256 , A.I.R 1958 A.P 396 to which one of us was a party. But this indefinite right, to be maintained from out of the properties of a Hindu Joint family does not however create in her a right in property. But a specific property can be transferred to her in discharge of her right of maintenance, from out of the estate of her husband or of the property of the family and she may be put in possession thereof. The widow acquires a right in such property in lieu of her maintenance which is the source of her title. If in transferring specific immoveable property in lieu of her maintenance no restrictions are placed by the instrument by which it is transferred, then she takes an absolute estate, under sub-section (1) of Section 14, But if a restricted estate is given by any such instrument, even if it be in lieu of maintenance, which is inconsistent with an estate, she would get under the Hindu Law, then sub-sec. (2) of Sec. 14 would operate to give her only a restricted estate, provided that that restricted estate, is recognised under the law for the time being in force, The right which she has is a right to be maintained from out of the property of her husband or of joint family properties. But if that right is translated into a right in specific property of the husband or of the joint family in which she had no share the property so transferred in her favour can either be in recognition of her right to maintenance under the Hindu law or create a restricted estate recognised under any other law in force. If it is the former the mere transfer or acquisition and possesson thereof in lieu of her right of maintenance at a Hindn widow or a Hindu woman would itself be sufficient to create an absolute estate under sub-section (1). But if it is the latter, notwithstanding the fact that it was transferred in lieu of maintenance, if only a restricted estate was conferred by the instrument, then she would only have the restricted estate.

12. We cannot accept the contention of the learned Advocate General that the right to maintenance is a right in property; that it is a pre-existing right in lieu Page: 306of which that property or portion there of is given and, therefore, sub-sec. (2) of sec. 14 does not apply to property transferred in lieu of maintenance, whether the instrument transferring property creates a restricted estate or not.

13. In this context of the law as it existed prior to the Hindu Succession Act. Sec. 14 must be construed. It is intended by that section to overrde the old law not only in respect of the limitation on her heritable capacity as a female heir and her powers to hold and transmit property, but also in respect of stridhana property possessed by her, whether acquired before or after the commencement of the Act, by declaring that all such property shall be held by her as full owner. The Legislature by this provision intended to give effect to the long-felt need to remove the fetters upon the rights of a Hindu female to hold and dispose of property, and by emancipating her from tutelage, which otherwise would be contrary to the changed social consciousness which desired equality of treatment of both sexes.

14. It may be observed that under sub-sec. (1) property acquired by a Hindu female before or after the commencement the Act, which would under the Explanation include acquisition by the several modes, whether in lieu of maintenance or at a partition or by her own self-exertion or property held by her as stridhana immediately before the commencement of the Act, would be her absolute property ???like under the Hindu law in force prior to the commencement of the Act. While this is so, sub-section (2) of sec. 14 grafts an exception on sub-sec. (1), and it is the scope and ambit of this sub-section that has to be examined. What the sub-section says is that where a Hindu female acquires property in any of the modes under that sub-section, and the terms of the instrument create a restricted estate, such an estate is not enlarged. Even here the anxiety of the Legislature is to see that in enlarging the rights of a Hindu female, the reform is not carried too fat to the extent that in a like situation, the rights of a male who acquires property gets a restricted estate by the terms of the instruments specified in sub-sec. (2) while a female Hindu notwithstanding the restriction would have an absolute estate. It is for this reason that an exception in sub-sec. (2) is engrafted on sub-sec. (1) in order to make clear the intention of the Legislature, that is, that where a Hindu female gets property under a gift, will or other instrument, and the instrument itself in express terms gives her only a limited right or a restricted estate in the property, only that limited or restricted right could be conferred upon her. The combined effect of sub-sec. (1) an (2) of sec. 14 is to enlarge the rights of a female under the Hindu law by conferring upon her absolute right, where she would have had a limited estate or a widow's estate, while at the same time giving effect to the terms of the gift, will or any other instrument or of a decree or an award, in case of property acquired under the aforesaid instruments, in the same way as a male would acquire property under the general law. In other words, if a restricted estate in a property is conferred by gift or under a will an any other instrument or under an award, she would take a restricted estate in terms of that instrument. To put it in a different way, sub-sec. (1) Page: 307of sec. 14 removes the disabilities imposed by the Hindu law in respect of properties inherited by her or acquired by her under a will or at a partition or in lieu of maintenance or arrears of maintenance or by gift by any person, whether a relative or not or property held by her as stridhana immediately before the commencement of the Act. In so far as property in which she would have had an absolute estate as a full owner even before the Act restrictions imposed by the instrument under which she acquires the property, should itself be the source or foundation of the female's title to the property and that restriction was to be given effect to. It could not have been the intention of the Legislature to bring within the purview of sub-sec (2) instruments which declare the pre-existing title of a female under the Hindu law to any particular property. The pre-existing right of Hindu female as has already been stated is in respect of property to which she would under the Hindu law, obtain a limited estate. Most of the cases which hove given rise to difficulties are those which have dealt with properties acquired or obtained under a partition or in lieu of maintenance or arrears of maintenance. It is needless to say that property acquired by a Hindu female either at partition or in lieu of maintenance can also be acquired and possessed by her without any instrument such as where possession is given to her as under an oral partition or oral arrangement. One of us sitting singly, in Seetharamamma v. Peeraiah 1964-I An. W.R 75 has occasion to point out the difference between limited ownership as understood in the Hindu law and a life estate as understood in the English law; though in both of them the holder enjoys the property during his or her life time, still this difference, namely, that a limited owner undr the Hindu law is entitled to alienate or dispose of property for necessity or for debts of a husband binding on the widow, while a life estate owner is not entitled to so dispose of or deal with the property. It is pertinent to cite the observation as to the effect of Sec, 14 at page 77 of the report.

“It is thus clear from a reading of section 14. sub-section (1) and (2) that where a female heir acquires properties and is in possession of the same, her rights are enlarged and she gets absolute interest unless, of course such an acquisition is under a will, gift, or any other instrument or under a decree or order of a Civil Court or under an award where such decree or order prescribed a restricted estate in such property.”

15. In that case, the question posed was whether under Sec. 14, the terms of the compromise intended to recognise merely the right of the widow under the Hindu law, namely, of a limited estate or confer a restricted right upon her within the meaning of sub-sec. (2) of Sec. 14, After referring to the several cases, it was further observed;

“……………………….. in all here cases the widow's right was recognised and consequently it was held that she got no new right or acquired no new property either under the family settlement or under a decree, What Page: 308has to fee seen in this case is whether on the interpretation of the compromise decree, it could be held whether the widow's pre-existing right was recognised.”

16. The decision turned on the terms of the compromise under which in lieu of the illatom son-in-law giving up his rights the widow was to transfer Ac. 4-00 of land to his wife (who was the daughter of Brahmiah by the first wife), allegedly on the ground that this was promised by her father as pasupu kumkum and that the should also be paid Rs. 150- as if it was a debt due from her father. It was also provided in the compromise that repayment of her husband's debts restricted to a special property, namely, Ac. 1-50 cents, that Ac. 4-00 of land should be sold to her by her husband as her absolute property and the remainder of the property she was to enjoy as a life interest. These terms show that there was a restriction on the sale of the property as a life estate owner, which was not similar to a widow's estate which conferred a right of sale. In this view it was held that the widow got a restricted right than what she was entitled to under the Hindu law and consequently the provisions of sec. 14(2) were applicable.

17. This case was considered by a Bench of this Court consisting of Chandra Reddy, C.J, and Narasimham, J., in Peddayya v. Venkiaraju 1964 II A.L.T 371 , 1964-II An. W.R 470. On the terms of the document in that case it was held that the life interest that was created under the relevant document was not the same as limited estate which the person concerned would have under the Hindu law. The facts in that case were that a widow had adopted the plaintiff some time after her husband's death, in 1935. There were differences between herself and the plaintiff and a settlement was arrived at through the assistance of mediators under which the widow was given 4 acres of wet land and 1 acre of dry land to be enjoyed by her for her life and the rest of the property to be taken by the plaintiff in recognition of his rights as an adopted son. It was agreed that the cist was to be paid by each of the sharers on his or her share of the lands from that time. The widow executed will and died on 26th August, 1956 bequeathing the properties which were given to her, in favour of her nephew. The plaintiff denied the claim of the legatee on the ground that the provisions of the Hindu Successions Act would not benefit a person in his position, and brought a suit to recover the properties. The legatee defendants claimed that, as he got the properties under the will, he had an absolute estate under sec. 14(1). It was argued before the Bench that the maintenance bolder obtained only a restricted estate in such property inasmuch an one of the conditions in the document restricts her from contracting any debt on the security of the said lands. That argument was repelled on the ground that the clause in question could not have the effect that is attributed to it. Chandra Reddy, C.J, speaking for the Bench observed that a perusal of the document shows that it was clause (7) that made the estate conferred on her limited to her life. At page 471 he said:

“So, this document evidences a family settlement in that the differences between the parties were resolved and the pre-existing rights of Page: 309each other recognised, As such, it is not a new right that was conferred upon the widow under this document. The restriction referred to above merely set out the legal effect on her estate as maintenance holder. This was another way of stating that the widow could have a life estate in the property and that she is to enjoy these properties in lieu of her maintenance.”

18. In our view, it is in the context of the interpretation given to the terms of the document that we must understand the observations made by the learned Chief Justice at Page 471. He says. We feel that sub-section (2) comes into effect only in cases where a new right is created with cretain restrictions and conditions and can have no application to cases of recognisation of existing rights.

19. It is contended that the abvoe passage militates against the view that even where property is given in lieu of maintenance with a restriction, sec. 14(2) will apply to make the estate conferred upon the widow a restricted one. We cannot accept this contention, because there is nothing in the above passage to warrant such a conclusion. If the basic concept of a Hindu woman's right to maintenance is appreciated namely, that she has no right in property as such, except to the extent indicated already, then if property is transferred to her in lieu of that right of maintenance by an instrument, she acquires the property by that instrument, and if that instrument places a restriction upon her right of enjoyment, which as we have stated earlier is not prohibited under the law, she gets only a restricted estate, because that is the condition upon which she has agreed to acquire the property of her husband or the joint family. In such an event, sec. 14(2) will apply. In distinguishing a care in Mr. S. Kuer v. D.M Devi A.I.R 1960 Patna 360 Chandra Reddy, C.J, did recognise the distinction between acquisition of property in recognition of her right of maintenance without any restrictions and acqusition with restrictions. At page 472 he said, “It was true that the mother made a gift of these properties to the daughters, but subsequently the daughters executed a document by and under which the mother was to be in possession of the lands during her life without any right of alienation by sale or mortgage. That situation does not obtain here, since as we have already stated it is in recognition of the pre-existing rights of maintenance that the land was given to the adoptive mother”. In the Patna case, the restriction imposed was something contrary to the right which a Hindu female gets in property obtained by her in lieu of maintenance. For instance, a life estate with a gift over is a restricted estate and is inconsistent with a right which a Hindu female has in property of her husband or of the Hindu joint family property which is transferred to her.

20. In Veerabhadra Rao v. Lakshmi Devi 1965 2 An. W.R 72 our learned brother Gopal Rao Ekbote, J., was construing an unregistered deed of family arrangement, in which the great grandmother of the 1st plaintiff was given certain property in lieu of maintenance to be enjoyed during her life time without granting bilmakta leases or effecting Page: 310mortgages, etc., She settled the property in favour of her duagther, the defendant, under another unregistered document, The plaintiffs filed suit for recovery of the property from the defendant, The trial Court decreed the suit on the ground that the case tell under Sec. 14(2) of the Act. On appeal, the Sub Court held that as the unregistered documents were inadmissible in evidence, the case fell within the ambit of sec. 14(1) of the Act and in that view dismissed the suit. In second appeal, our learned brother held that when an instrument contains terms prescribing a restricted estate in the property, and it is only under that instrument that a female Hindu gets a right to the property, it is then only that sec. 14(2) will be applicable. It was also held that since the great grandmother could not claim a right to be maintained as against the 1st plaintiff or from the property in his possession, it cannot be held the apart from the document she bad a pre-existing or independent right in the suit property under the general law as qualified owner which can bring her case within the scope of sec. 14(1) and which enlarges that qualified ownership into full ownership. It was further held that the restrictions imposed upon her power to mortgage or to give permanant leases make the life estate created a ‘restricted estate’ within the meaning of sec. 14(2). At page 74, the learned Judge observed:

“If the female Hinbu de hors the instrument has an independent right to the property, in other words, if the instrument does not constitute the source or foundation of her right to the property, she takes the property absolutely despite the instrument in her favour restricting her right in the property. Merely because there is an instrument, unless there are other things mentioned above along with it, it does not prevent the woman taking an absolute estate. What must follow from the aforesaid is that, when an instrument contains terms prescribing a restricted estate in the property, and it is only under that instrument that a female Hindu gets right to the property, it is then only that sub-section (2) will be applicable”

21. It is contended that while no exception can be taken to the concluding sentence the proposition that if the instrument does not constitute the source or foundation of her right to the property, she takes the property absolutely despite the instrument in her favour restricting her right in the property which is inherent in the above observation, is incongruous and contradictory, It is said that an instrument cannot at once restrict a right in property and at the same time cannot be said to constitute the source or foundation of the woman's right. We do not think that there is any incongruity in the proposition, because what the learned Judge evidently is envisaging is a case where a female or a widow has obtained possession already in furtherance of her antecedent right in which case a subsequent restriction imposed by an instrument declaring that right will be of no avail. Apart from the question as to what type of acquisition was in fact envisaged, in our view where an instrument which is the source of her title whether in lieu of her right of maintenance or otherwise confers a resticted estate, sub-sec. (1) of sec. 14 cannot confer an absolute estate Again at page 75, the learned Judge observed:

“Right to maintenance and right to property are two distinctly separate things and should not be confused when we consider Page: 311sub-section (2) of sec. 14. Unless, therefore, in the discharge of an obligation to maintain, any specific property is given in possession of or transferred, it cannot be validly contended that the woman has the right to the property in lieu of her maintenance. In case such an instrument is executed in her favour giving her the possession of the property in lieu of maintenance, it is only then that it can be said that the insrument is the source or foundation of her right to property which she did have before the instrument granting her such right, It may be that she had right to maintenance but it cannot be argued that she had right or interest in any specific property.”

22. No exception can be taken to these observations. If a right in specific property was given by an instrument in lieu of maintenance, and that right is to be governed by the instrument much more so would be the right, which she would acquire under the instruments specified in sub-sec. (2) of sec. 14. Even under the Hindu law, a woman who acquires property in any of the modes specified in the Explantion to sec. 14(1) except where she gets a share on partition or in lieu of maintenance, could get an absolute estate; if so, that right also could be restricted by the instrument under which she would acquire the property. Even in the case of a share given on partition or property acquired in lieu of maintenance a restricted estate could be given to her by the instrument itself.

23. The several cases cited before us had been decided on the basis and the nature of the right which a Hindu female acquired in property under the terms of the instrument. In Mt S. Kuer v. D.M Devi A.I.R 1960 Patna 360 a Bench of the Patna High Court consisting of Ramawami, C.J, (as he then was) and Kanhaiya Singh, J., it was laid down that where a widow on coming into possession of her husband's properties gifted all of them away in 1947 to her daughter who in return executed a deed of maintenance in favour of their mother to the effect that she would be in possession of those properties during her life-time and have the right to enjoy their usufruct in lieu of maintenance without any right of alienation. It has been held that the widow's interest was only a restricted estate and the case was governed by sub-sec. (2) and not by sub-sec. (1) of Sec. 14 of the Hindu Succession Act, There is not much discussion as to the reason for the application of Sec. 14 but we presume because of the restriction on the right of alienation by the widow during her life-time, which is inconsistent with a widow's estate where she has that right during her life-time, a restricted estare under S. 14(2) was spelled out.

24. In Mali Bewa… v. Dadhi Das…. das A.I.R 1960 Orissa 81 Barman, J., was considering a case whereby a compromise decree between the adopted son and his widowed mothers, the son got half share in the property and the widows got the remaining half share for their maintenance. The decree contained also that the widows would remain in possession of their share till their life time and meet their maintenance out of the usufruct, and if for any reason the usufruct be not sufficient then they would be entitled to sell such portion of their share as may be necessary. The property was in joint possession of the mothers and the son. Upon the death of Page: 312one of the mothers, the other widow brought a suit for partition and claimed that as she was in possession of property along with her son at the commencement of the Hindu Succession Act, she became the full owner and not a limited owner. It has been held that by the compromise decree which was passed before the commencement of the Hindu Succession Act only a restricted right was given to the widows and not an absolute right. The case, therefore, fell under sub-section (2) and not under sub-section (1) of Sec, 14 of the Hindu Succession Act. The learned Judge observed at page 83 of the report:

“Reading this document it is quite clear that only restricted right was given to the widows and not absolute right as contended on behalf of the widow.

In this reading of the compromise decree……………….. it appears that the case directly falls under sub-section (2) of sec. 14 of the Hindu Succession Act, that is to say, the widow having acquired by the said decree only a restricted estate in the property, she would not be entitl-to the benefit of sub-section (1) of S. 4 of the Act which gives a widow the right of a full owner and not limited owner.”

25. In Sasadhar Chandra v. Tara Sundari A.I.R 1962 Cal. 4???8 the question was whether the right of a Hindu female to a share in the Hindu Joint family property along with others jointly was a restricted right under a preliminary decree in a partition suit declaring the existing rights of the parties. It has been observed that if prior to the date of the decree a Hindu female had title and all that the decree does is to declare that title in the said properties, she cannot be said to have acquired the property under the decree, and all that the preliminary decree in a partition ??? declared was the existing rights of the parties and a Hindu female by such a declaration in the preliminary decree cannot be said to have acquired a share in the joint family property. Nor does the direction in the preliminary decree to allot to her property to be held by her in severalty in lieu of her undivided share in the joint estate amounts to acquisition of no property by her. In coming to this conclusion, Mallick. J., examined the meaning of the word “acquired” occurring both in Sub-secs (1) and (2) It was pointed out that that word, as occurring in the Explanation to Sub-sec. (1) must be noted that that explanation is restricted to sub-sec. (1) x x x and recourse to it was not intended by the Legislature to be taken for construing sub-sec. (2) of Sec. 14. Sub-sec. (2) exempts the operation of sec. 14(1). The learned Judge pointed out that the language used in sub-sec. (2) indicates that the word “acquired” will have a restricted meaning and it was not intended to have a meaning wider than its ordinary meaning. A property is said to be acquired when prior to the acquisition the person acquiring it had no interest in the property. It was further observed that the donee of a gift or the devisee under a will acquires the property because prior to the gift or devise he had no title or right to the property which he gets as gift or devise. Referring to the decree as a source of the title, it has been pointed out at page 440 of the report:

“*If prior to the date of the decree the Hindu female had title and all that the decree does is to declare that title of the female Hindu in the said properties, the female Hindu cannot be said to have acquired the property under the decree. Her right is merely declared. Such a declaration of a pre-existing right in a property cannot be said to be on acquisition of property by a female Hindu. The preliminary decree in a partition suit does nothing more than declare the existing rights of the parties. In the case of a female Hindu, the declaration must necessarily be to the effect that she would have restricted estate of a Hindu female. It cannot be said that by such a declaration in the preliminary decree the Hindu female acquires a share in the joint family property. Nor does the direction in the preliminary decree to allot to her property to be held by her in severalty in lieu of her undivided share in the joint estate amounts to acquisition of new property by her.”

26. It is obvious from these observations that having regard to the nature of the right which a Hindu female had prior to the passing of the Act, the question will always be whether her right is based on an antecedent title, a declaration of a previous right or whether the right is a new one created by an instrument. If it is merely a declaration or conferment of an antecedent title, any restriction imposed under the document which is consistent with that title which she would have had under the Hindu law, could not be construed as a restriction under S. 14(2) but would have the effect of enlarging the estate under sec. 14(1) of the Act. If this is not so, and the title is one which is created under the instrument itself, the terms of the instrument must be looked into; the restriction, if any, would be given effect to under sub-sec. (2).

27. In Shankuntala Devi v. Beni Madhav A.I.R 1964 All. 105 the question that arose for consideration was whether the terms of a will prescribed a restricted estate in the property and such an interest would be untouched by the provisions of sub-sec. (2) and would be enlarged by sub-sec. (1) of Sec. 14. It was observed that what the applicant got under the will was the interest of a “Hindu widow” in her husband's property and not a restricted estate in the sense of an estate for life. All that the husband gave to his wife i.e, the applicant was a Hindu widow's interest and if such an interest is enlarged into full ownership by the provisions of Sec. 14(1) there is no reason why the provisions of sub-sec. (2) would prevent the applicant's interest from being prefected into full ownership. In Sampathkumari v. Lakshmiamma A.I.R 1963 Mad. 50 a Bench of the Madras High Court went into the several aspects of Sec. 14 in detail. That was a case where properties, inherited by two female Hindus from their husband on his demise, are divided between them under an instrument of partition with a stipulation contained therein that the properties so divided should, after their lives, go to the heirs at law but containing no clause whatever restricting the oridinary Hindu woman's estate which the two widows would normally have. In that case, it has been held that the partition deed does not in any way restrict the ordinary Page: 314Hindu widow's estate which each of the widows would otherwise have had in the properties on the date of partition. It cannot be said that the widows acquired the tight to the properties only under the partition deed, for the simple reason that they had acquired the right even previously by inheritance as widows of their husband and the partition merely divided the properties allotting a portion to each, It is also further observed that the word “acquire” means that prior to the acquisition, the widows could not have had any interest in the lands whatever. Several cases cited by the learned advocate were considered, notwithstanding the fact that, as it was observed, the point is simple and obvious.

28. In Shabati Devi v. Hirala A.I.R 1964 Punj. 114 the properties were mutated half and half between the widow and her husband's brother and the widow was put in possession of a part of the estate in lieu of maintenance without imposing any specific restrictions on her interest in the property. Thereafter in a suit between the two, there was a compromise decree and it was claimed that subsequent to the Hindu Succession Act, 1956, the property having been taken by the widow-in lieu of maintenance, she became the full owner of the same under Sec. 14(1) of the Act, Upholding the claim, it was observed at page 116:

“It is admitted that by means of the compromise on which the consent decree was passed in 1951 she did not get any larger interest or was not put in possession of mote properties or share in the properties that what was in the possession already by virtue of the mutation dated 31st December, 1938,… In this view of the matter it cannot be said that it was by virtue of the decree that the appellant came to be in possession of the suit property.”

29. In Gurunadham Setty v. Navaneethamma 1967-I M.L.J 454 Natesan, J., set out law prior to and subsequent to the enactment. That was a case where the 1st defendant lost her husband prior to the Hindu Women's Right to Property Act, 1937. The only right that she then had under the law was a right to be maintained out of the family properties. She bad no title and no right to share in the family properties. The sons could have contented themselves with making a regular money payment and if required charging certain properties for the maintenance amount, But when they partitioned the estate amongst themselves, they set apart property giving her a life estate pare and simple in the property, the property to revert to the sons on her death. The estate given to the widow for her maintenance was restricted to a life estate. She was not granted any powers of alienatior. Her right was limited to the enjoyment of the income from the property. It was held that what she got under the partition was not the qualified estate of a Hindu female known as woman's estate or widow's estate. She was not even party to the partition deed as partition could be had only between persons having pre-existing proprietary rights in the property. It was, therefore, held that the estate given to the widow under the instrument of partition fell under S. 14(2) of the Act and that S. 14(1) did not operate on Page: 315the estate and make the widow a full owner, and in the circumstances the alienations were bad. At page 457 the learned Judge observed:

“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. Then, 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. If there are no restrictions on the estate thus carved out or no limitation on the property thus provided for maintenance in the instrument, then subsection (1) of section 14 can apply. But if the instrument gives only a restricted estate, sub-section (2) is attracted. As to the validity of the restrictions imposed under the instrument, one must look to the Transfer of Property Act, the Succeesin Act or other laws governing transfer of interest in the property. But restrictions, validy imposed by the instrument will have full operation now notwithstanding that the beneficiary under the instrument is a Hindu female and she takes the estate, may be in lieu of maintenance or for arrears of maintenance.”

30. The result of our discussion and the examination of the case law may be stated thus: Under the Hindu law, a Hindu female though she has a right to be maintained out of the husband's properties or joint family properties, it is not a ease of acquiring a right in her husband's “properties or joint family properties but she has only a right to be paid out” of the respective properties as the case may be over which Sec. 39 of the Transfer of Property Act imoposes a charge. If, however, any rights in the property of her husband or joint family property are acquired by a Hindu woman in lieu of her maintenance she is obtaining property for the first time under the instrument and notwithstanding the fact that property is transferred to her in lieu of a pre-existing right of maintenance, if the document under which she acquires the right restricts the estate which she otherwise would get under the Hindu law, she would get restricted estate. If the transfer is only in lieu of a pre-existing right of maintenance and the terms and conditions imposed are consistent with that, she would get absolute estate under S. 14(1).

31. Even in a case where she obtains a share at a partition, the question will be whether she has acquired a new right or it is only recognition of an antecedent right which can be adjudged only by the terms of the instrument. In every case the facts and circumstances as well as the nature of the right claimed or conferred upon her will have to be looked into to determine whether the property has been acquired by her in lieu of recognition of an antecedent right, or by a new right. If it is the former. Sec. 14(1) will operate, and if the latter S. 14(2) will operate.

32. Appllyng these principles to the facts of the second appeal, under the Hindu law the wife would have inherited the properties and the mother will be only entitled to maintenance out of the properties. The deceased under the will while intending to give the entire properties absolutely to his wife had interposed a Page: 316life estate in respect of a moiety in favour of his mother and after her death there was to be a gift over to the wife absolutely. The right which she had, therefore, was a right to maintenance out of the joint family properties but she had no right to the property as such. Any right which has been conferred on her under the will was a new right and, therefore, would confer a restricted estate under Sec. 14(2). We cannot accept the contention of the learned Advocate General that in the context of her right to maintenance from out of her husband's properties, the conferment of an estate which is in recongition of an antecedent title to property itself, her right would not be restricted, As we have observed earlier, there it no warrant for the assumption that a right to maintenance is a right in property which is a pre-existing right. In this view we agree with the findings and conclusions of the District Judge that Ex. A-1 confers a restricted right under Sec. 14(2) of the Act.

33. In the Letters Patent Appeal as held by Chandrasekhara Sastry, J., Ex. A-1 doe not confer any right.

34. A reading of it would show that it is in recognition of an existing right that property was given to her. An estate which she would have taken it the property had been transferred in lieu of maintenance was also conferred and nothing more. It is clear from Ex A-1 that the property was given to the 1st defendant towards her maintenance in the year 1921, the husband having died in 1919. The document recites that she is the step-mother of the minors and there is no amicability between her and her step-sons and that she claimed maintenance and separate residence. Therefore, in accordance with the advice of elders, property worth rupees two hundred, namely, land worth rupees one hundred and a house worth rupees one hundred which are mentioned in the schedule were delivered possession of to her for enjoyment during her life-time. After her life-time, both the land and the house will revert to the minors. There was it may be observed, no express prohibition against any alienation of the property. The recital that after her life time, the land and house shall revert to the minors was in accord with the rights which she would have had in case the property had been transferred to her in lieu of her maintenance. We agree with Chandrasekhara Sastry, J., and hold that it is a case in which S. 14(1) is applicable and her right, therefore is an absolute right.

35. In this view, both the appeals would be dismissed with costs.

36. Appeals dismissed.