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PETITIONER: BADRI PERSHAD

       Vs.

RESPONDENT: SMT. KANSO DEVI

DATE OF JUDGMENT: 26/08/1969

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C. RAMASWAMI, V.

CITATION:  1970 AIR 1963            1970 SCR  (2)  95  1970 SCC  (1)   8  CITATOR INFO :  D          1976 SC2198  (6)  RF         1977 SC1944  (68)  RF         1979 SC 993  (3)  RF         1987 SC2251  (5,6,7)  D          1991 SC1581  (15)

ACT: Hindu  Succession Act (30 of 1956), s. 14(1)  and  (2)-Widow inheriting  property under s. 3(1), Hindu Women’s Rights  to Property  Act (18 of 1937)-Award allotting her share  before the  coming into force of the 1956-Act-Award describing  her right as widow’s  estate-Whether widow’s rights governed  by s. 14(1) or s. 14(2).

HEADNOTE: A  Hindu, owning his self-acquired properties, died in  1947 leaving  five sons and a widow.  In 1950, an arbitrator  was appointed for dividing the assets and liabilities among  the heirs. The arbitrator gave his award and a decree was passed in  terms  of  the award.  Under the award,  the  widow  was allotted her share of the properties and it was stated  that she was to have a widow’s estate in those properties.     On  the question whether,  on  the  coming  into.  force of  the Hindu Succession Act, 1956, she became a full  owner of  the. properties  under s. 14(1) or only had a restricted estate in such properties under s. 14(2).     HELD: The words ’possessed’ and ’acquired’ in s. 14( 1 ) are  used  with the widest possible: meaning, so  that,  the ’possession’  may be either actual or constructive  and  the ’acquisition’ can be in any manner  whatsoever. Hence, where a  female  Hindu has a share in joint properties  which  are later  on  partitioned  by metes and  bounds  and  she  gets possession  of the properties allotted to her,  before   the coming  into force of the  Hindu Succession Act, she was not only ’possessed’ of that property at the time of the  coming into force of the Act but had also ’acquired’ it before  its commencement.   The  mere  fact that the  partition  was  by means  of  an arbitration award would not bring  the  matter within  s.  14(2)  as  s. 14(1)  had  already  become  fully applicable.  Section 14(2) is in the nature of a proviso. or

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an exception to s. 14(1) and comes  into  operation  only if acquisition in any of the methods indicated therein is  made for the first time without there being any preexisting right in the female Hindu to  the property. [98 F--H; 99 A-C, F]     In  the present case, the widow inherited  the  property under s. 3 (1 ) of the Hindu Women’s Rights to Property Act, 1937,  and was therefore  in ’possession’ of it  within  the meaning  of  that  word in s. 14(1),  and,  when  the  award separated her share by metes and bounds, she ’acquired’  the property within the meaning of that section.  Therefore, she had  become  full owner of the property  in  her  possession under  s.  14(1)  on  the coming into  force  of  the  Hindu Succession  Act, even though previously she: was  a  limited owner. [97 G--H; 98 D--E; 99 E--F]     Gummalapura  Taggina   Matada   Kotturuswami  v.   Setra Veerayya,  [1959] Supp. 1 S.C.R. 968, Munnalal v. RaI  Kumar [1962]  Supp.  3 S.C.R. 418 and Sukhram  v.  Gauri  Shankar, [1968] 1 S’.C.R. 476., followed.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1937 of 1966. 96     Appeal  from the judgment and order dated July 19,  1965 of the Punjab High Court, Circuit Bench at Delhi in  Regular Second Appeal No. 251-D of 1964. S.T. Desai and I. N. Shroff, for the appellant.       S.V.   Gupte,  K.L.  Mehta,  Yogeshwar   Dayal,   M.M. Kshatriya   and G.S. Chatterjee, for the respondent. The Judgment of the Court was delivered by     Grover,  J.  This is an appeal by special leave  from  a judgment  of the Punjab High Court (Circuit  Bench,  Delhi). The  facts  may be briefly stated: One Gajju  Mal  had  five sons, Badri Pershad, Ganesh Dass, Devi Chand, Narain Das and Ishar  Das.  The first four were by his first wife,  whereas the 5th son Ishar Das was by his second wife Smt. Kanso Devi Gajju  Mal died in 1947 leaving him surviving the said  five sons and Smt. Kanso Devi.  On August 5, 1950 Tulsi Ram  Seth was ,appointed by the parties as an arbitrator for resolving certain  differences which had arisen relating to  partition of  the  urban  immovable properties and  other  assets  and liabilities  left  by Gajju Mal.  On October  31,  1950  the arbitrator  gave his award.  Under clause 6 of  this   award Smt. Kanso Devi was awarded three sets of property including bungalow  No. 20, Alipore Road, Delhi.  The award  was  made the rule of the court.  It was stated in the award that Smt. Kanso  Devi  would have a widow’s estate in  the  properties awarded  to  her. It was also provided  that  the  immovable properties allotted and awarded to the various parties would be individually and exclusively owned by them and each party would   be  entitled  to  take  physical   or   constructive possession of the properties allotted and awarded to his  or her share.     Badri Pershad, the appellant before us, filed a suit  in August 1961 against the respondent Smt. Kanso Devi  pleading inter  alia  that she was a limited owner  of  the  property which  had been given to her by the award and that  she  was trying to alienate the same and commit acts of waste to  the prejudice  of  the  reversions. He  asked  for  a  perpetual injunction restraining her from committing acts of waste and from   alienating  the  suit  properties.   The   respondent contested  the suit.  On the pleas of the parties the  trial court  framed seven issues out of which the   material   one was No. 4 which was in these terms:                      ,

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     "Whether  the defendant was ’awarded life estate  only in the property in suit .9,, On April 17, 1963 the trial court dismissed the suit holding that no act of waste on the part of the respondent had  been proved  and  that she had inherited the property  under  the Hindu Women’s Right to Property Act, 1937 and that the award had simply sepa- 97 rated her share by metes and bounds, and under s. 14( 1 ) of the Hindu Succession Act she had become full owner  thereof. The  first appellate court and the High Court  affirmed  the decree of the trial court.     The sole question for determination is whether the  case of the’ respondent was governed by sub-s. (1) or sub-s.  (2) of  s. 14 of’ the Hindu Succession Act,  hereinafter  called the Act.  This section reads:                    14(  1  ) "Any property  possessed  by  a               female Hindu, whether acquired before or after               the commencement of this Act, shall be held by               her us 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 of by prescription or  in  any               other  manner whatsoever, and also  any   such               property held by her as stridhana  immediately               before the commencement of 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  restricted               estate in such property." According  to the appellant the suit property was  ’acquired by  the respondent under the award given by Tulsi  Ram  Seth or’  alternatively under the decree based on the award,  the estate  being restricted by both the award and  the  decree. The provision in the award that the respondent was to have a widow’s estate under Hindu Law, it is said, conferred on her only a limited estate and sub-s. (1 ) would be inapplicable. The position of the respondent throughout has been that  she had  interest in all the joint properties together with  the right  to  partition under the provisions of  Hindu  Women’s Right  to Property Act, 1937 (Act XVIII of 1937).  Thus  the property  was  acquired  by the respondent  at  a  partition within the terms of the Explanation to sub-s. (1 ) of s. 14. As  she was possessed of that property at the time  the  Act came  into force she became full owner thereof by virtue  of s.  14(  1  ) of the Act even though previously  she  was  a limited owner. Under s. 3(1) of Act XVIII of 1937 as amended by Act XI  193 8 when a Hindu governed by any School of Hindu law other 98 than  the Dayabhaga School died intestate  leaving  separate property  his widow was entitled to the same share as a  son in respect ,of the property left by her husband.  Under s. 3 (2) when any such Hindu died having at the time of his death

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an interest in a -Hindu Joint Family property his widow  was to  have  the  same interest in the property as  he  himself had.   Sub-s. (3 ) provided that any interest devolving on a Hindu  widow  under  the aforesaid provision  was  to  be  a limited interest known as Hindu women’s ,estate but that the widow was to have the same right of claiming partition as  a male owner.     The  case in the courts below proceeded on  the  footing that all the properties left by Gajju Mal were his  separate acquisitions.  It  was apparently for that reason  that  the High Court gave a finding that before the partition effected by  the arbitrator by means of the award, the five sons  and the widow (respondent) of Gajju Mal enjoyed equal shares  in the properties left by him. The  point for our consideration is narrowed down  to  this. When  a female acquires an interest under the provisions  of Act XVIII of 1937 in the properties of her husband which are subsequently  separated  by means of a  partition  does  she become  an absolute owner under sub-s. (1 ) of s. 14 of  the Act  or does she get only a restricted estate  under  sub-s. (2) of that section ? The contention of the learned  counsel for  the  appellant is that the court should first  look  at sub-s.  (2) and if the case does not fall. within its  ambit and,  scope then alone sub-s. (1 ) will  become  applicable. This  manner  of  reading of the section  is  not  warranted either  on  principle or authority.  The section has  to  be read  as a whole ’and it would depend on the facts  of  each case whether the same is covered by the first Sub-section or sub-s.  (2).   The  -critical  words  in  sub-s.  (1  )  are "possessed"  and "acquired".  The word "possessed" has  been used  in its widest connotation and it may either be  actual or  constructive or in any form recognised by law.   In  the context  in  which it has been used in s. 14  it  means  the state  of  owning  or having in one’s  hand  or  power  (see Gumrnalapura Taggina Matada Kotturuswami v. Setra   Veerayya & Ors.)(1).  In S.S. Munna Lal v.S.S. Rajkumar & Ors.(2)  it was  held  that  1/4th  share of a  female  which  had  been declared  by  the  preliminary  decree  passed  before   the enactment of the Act was possessed by her within the meaning of s. 14 and she became the full owner so that on her  death the  said property descended to her grandsons in  accordance with  the provisions of ss. 15 and 16 of the Act.  The  word "acquired"  in sub-s. (1 ) has also to be given  the  widest possible meaning.  This would be so because of the  language of the Explanation which  makes  sub-s.  (1 ) applicable  to acquisition  of  property by inheritance or devise or  at  a partition   or  in  lieu  of  maintenance  or   arrears   of maintenance      99 or  by  gift or by a female’s own skill or  exertion  or  by purchase  or  prescription or in  any   manner   whatsoever. Where  at the commencement of the Act a female Hindu  has  a share in  joint properties which are later on partitioned by metes  and bounds and she gets possession of the  properties allotted to her there can be no manner of doubt that she  is not  only  possessed  of that property at the  time  of  the coming into force of the Act but has also acquired the  same before its commencement.     Sub-section  (2)  of s. 14 is more in the  nature  of  a proviso  or an exception to sub-s. (1 ).  It can  come  into operation  only  if  acquisition  in  any  of  the   methods indicated  therein is made for the first time without  there being  any preexisting right in the female Hindu who  is  in possession of the property.  The Madras High Court was right in the observations made in Rangaswami Naicker v. Chinnammal

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&  Another(1) that sub-s. (2) made it clear that the  object of s. 14 was only to remove the disability on women  imposed by   law  and  not to interfere  with  contracts,  grams  or decrees  etc.  by  virtue  of  which  a  women’s  right  was restricted.  In  Sukhram  &  Another  v.  Gauri  Shankar   & Another(2),  one Kishan Devi had acquired in 1952  the  same interest  in  the  property of the joint  family  which  her husband Hukan Singh had under the provisions of Act XVIII of 1937.   The  question arose, whether after the  coming  into force of the Act she got rights of full ownership and  could alienate the properties in which she had acquired a  limited interest  without  the consent of the male  members  of  the family. This Court decided that she had become full owner by virtue  of the provisions of s. 14(1) of the Act. This  case is quite apposite for our purpose and we must hold that  the respondent  became a full owner of the suit properties  when the  Act  came into force.  The mere fact that there  was  a partition by means of arbitration which resulted in an award and  a decree based on it would not bring the matter  within sub-s.  (2)  as the provisions of sub-s.  (1)  became  fully applicable particularly in view of the express terms of  the Explanation. This appeal fails and it is dismissed with costs. V.P.S.                                     Appeal dismissed. (1) A.I.R. 1964 Mad. 387. (2) [1968] 1 S.C.R. 476. 100