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PETITIONER: GUMMALAPURA TAGGINA MATADAKOTTURUSWAMI

       Vs.

RESPONDENT: SETRA VEERAVVA AND OTHERS

DATE OF JUDGMENT: 19/12/1958

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER DAS, S.K. KAPUR, J.L.

CITATION:  1959 AIR  577            1959 SCR  Supl. (1) 968  CITATOR INFO :  R          1962 SC1493  (15)  R          1966 SC 216  (2)  E          1967 SC1786  (9,16)  R          1970 SC1963  (6)  R          1977 SC 164  (8)  RF         1977 SC1944  (3)  E&D        1987 SC1493  (7)  RF         1991 SC 663  (3,15)  D          1991 SC1581  (8,11)

ACT: Hindu Law-Widow in Possession of husband’s  property-Adopted son  getting into possession-Adoption invalid-Whether  widow is  in  constructive  Possession-"Property  Possessed  by  a female Hindu ", Meaning of-Hindu Succession Act, 1956 (30 of 1956), s. 14.

HEADNOTE: Sub-section (1) of s. 14 Of the Hindu Succession Act,  1956, provided:  "  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." A  suit  instituted by the nearest reversioner of  K  for  a declaration that the adoption made by K’s widow was invalid, was  dismissed -and during the pendency of the appeal  filed against the decree dismissing the suit, the Hindu Succession Act,  1956, came into force.  At the hearing of  the  appeal the respondent raised the preliminary objection that even if the  adoption were held to be invalid, the appellant’s  suit must  fail  in view of the provisions of S. 14  Of  the  Act under  which K’s widow, who was a party to the suit and  the appeal,  would  be  entitled  to a  full  ownership  of  her husband’s  properties, while it was urged for the  appellant that s. 14 Of the Act did not apply to the facts of the case because  the properties were not in, the possession  of  K’s widow,  but were only with the adopted son at the  time  the Act came into force. Held,  that  the  word "possession" in s. 14  Of  the  Hindu Succession Act, 1956, is used in the widest connotation  and it  may  be  either actual or constructive or  in  any  form

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recognised by law. 969 Gostha  Behari  v. Haridas Samanta, A.I.R.  1957  Cal.  557, approved. In  the present case, if the adoption was invalid K’s  widow would  be  the full owner of K’s estate, and even if  it  be assumed that the adopted son was in actual possession of the estate,  his possession was merely permissive and K’s  widow must  be regarded as being in constructive possession of  it through  him.  Accordingly, s. 14 was applicable and as  K’s widow  became  a  full owner of her  husband’s  estate,  the appellant’s suit was not maintainable.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 120 of 1955. Appeal from the judgment and decree dated March 25, 1949, of the Madras High Court in Appeal No. 55 of 1946, arising  out of  the judgment and decree dated November 26, 1945, of  the Court of the District Judge of Bellary in Original Suit  No. 39 of 1943. A.   V. Viswanatha Sastri and K. R. Chaudhury for B.   K. B. Naidu, for the appellant. K.N.  Rajagopala  Sastri  and  M.  S.  K.  Sastri,  for  the respondents. 1958.  December 19.  The Judgment of the Court was delivered by IMAM,  J.-This appeal is before us on a certificate  granted by  the High Court as according to that Court a  substantial question of law arose in the case which was stated by it  to be " Is the adoption of the second defendant invalid, as the approval  or  consent  of the  five  trustees  mentioned  in paragraph 14 of the will of Kari Veerappa, Exbt.  P-2(a) was not obtained; and is the authority to adopt at an end if any one of those five persons did not accept the trusteeship  or died  before the adoption or refused to give their  approval ".  In  view  of certain matters about  to  be  stated,  the question  of  law as propounded by the High Court  does  not require to be considered. Kari  Veerappa  was  the  last  male  owner  of  the  estate mentioned  in his will, Exbt.  P-2(a), which he executed  on October  10, 1920.  Under this will he authorised  his  wife Setra  Veeravva,  first defendant, to adopt a  son  for  the purpose of continuation of his family as 970 he  had  no  issue.   The authority  to  adopt  was  in  the following terms: "  I  have given her permission to adopt as  many  times  as would   be  necessary,  should  the  previous  adoption   be unsuccessful.   But Veeravva must adopt only a boy  approved by the respectable persons appointed by me in paragraph  14; should Veeravva die before -making any adoption, the persons becoming  trustees should arrange for the adoption of a  boy for  the  continuation of my family in  accordance  with  my kulachara (family usage) At  this  stage  it is unnecessary to  refer  to  the  other provisions  of the will of Kari Veerappa.  This gentle.  man died  on October 23, 1920.  After his death, his widow  made two  attempts  to adopt a son in accordance with  his  will. The  first attempt was in 1939 which did not accomplish  the purpose  of  the  will as the person alleged  to  have  been adopted  died.   The  validity of this  adoption  was  being questioned,  but  as the boy said to have been  adopted  had died,  effects to dispute the adoption did not  materialise.

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Veeravva  thereafter,  on October 11, 1942,  adopted  second defendant,  Sesalvada Kotra Basayya.  Two documents in  this connection  are on the record.  The first document is  Exbt. D-25  dated  the  18th  of  September,  1942,  which  was  a registered  agreement  to adopt the second  defendant.   The second  document  is also a registered  document,  which  is described  as  the deed of adoption and is  dated  June  23, 1943.   This  clearly  states  that  on  October  11,  1942, Veeravva had adopted the 2nd defendant.  Reference was  also made  in  this document to the agreement  of  September  18, 1942.  The appellant claiming to be the nearest  reversioner of  Kari  Veerappa  filed  the present  suit  asking  for  a declaration  that  the adoption of the second  defendant  by Veeravva was invalid and not binding on the appellant or the other reversioners to the estate of the late Kari Veerappa. The  suit filed by the appellant was heard by  the  District Judge of Bellary who dismissed it.  The appellant-  appealed to  the High Court of Madras.  His appeal was dismissed  and the decision of the District 971 Judge  was substantially affirmed.  The High Court  did  not allow compensatory costs granted by the District Judge,  nor did it agree with his finding that the appellant had  failed to prove the relationship he had propounded and that lie was -not a reversioner at all, far less the nearest reversioner. In  the  opinion  of the High Court,  the  appellant  was  a relative and a reversioner, though he had not proved that he was the nearest reversioner alive at the time the appeal was heard  and  that he need not prove this  until  he  actually sought   to  recover  possession  of  the   property   after Veeravva’s death. When  this appeal came on for hearing the  learned  Advocate for  the respondents took a preliminary objection  that  the suit  filed by the plaintiff must in any event fail,  having regard  to the provisions of s. 14 of the  Hindu  Succession Act, 1956 (30 of 1956), hereinafter referred to as the  Act. Hence the present appeal arising out of that suit must  also fail.   It was contended on behalf of the  respondents  that either  there  was a valid adoption or there  was  not.   If there  was  a valid adoption and the decisions of  the  High Court and the District Judge on this question were  correct, then obviously the suit of the appellant must be  dismissed. If, on the other hand, it was found that the adoption of the second defendant by Veeravva was either invalid or, in fact, had  not taken place, then under the provisions of s. 14  of the  Act,  Veeravva became the full owner of  her  husband’s estate  and was not a limited owner thereof.   Consequently, the appellant’s suit was not maintainable.  In, view of this submission  we are of the opinion that the point  raised  by way  of preliminary objection must first be  considered  and decided.   It  is well settled that an  appellate  court  is entitled  to take into consideration any change in  the  law (vide  the case of Lachmeshwar Prasad Shukul v. Keshwar  Lal Chaudhuri(1). Section 14 of the Act states:- "  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. (1)  [1940] F.C.R. 84. 972 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

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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 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  a restricted estate in such property." On  behalf of the appellant it was urged that s. 14  of  the Act  did not apply to the facts of the present case  because the  estate of Veerappa was not in possession of  his  widow Veeravva  but was in possession of the second  defendant  at the  time  the Act came into force  and,  secondly,  because under  sub-s. (2) of s. 14 Veeravva got a restricted  estate under  the  will Exbt.  P-2(a) and the agreement  to  adopt, Exbt.   D-25.  It was submitted that the widow , s power  of adoption  did not depend on her ownership of the  estate  of her  husband.   That power in the present case  was  derived under  the Hindu law either from the authority conferred  by her husband or the consent of his agnates.  The Act did  not enlarge her power of adoption and did not render an  invalid adoption made by her immune from attack by the  reversioners during  her life time.  The act of Veeravva in  the  present case was to bring in a stranger.  The appellant as a  rever- sioner  was,  therefore, entitled during the  life  time  of Veeravva  to bring the present suit to obtain a  declaration that the adoption of the second defendant was invalid. The  question raised by the preliminary objection  taken  by the  respondents must be considered an the  assumption  that the adoption of the second defendant 973 was  invalid.  The provisions of a. 14 of the Act would  not arise  for consideration, if the second defendant  had  been validly  adopted.  It is necessary, therefore, to  determine whether  the provisions of s. 14 apply to the facts  of  the present case. It  was strongly urged on behalf of the appellant  that  the words " any property possessed by a female Hindu " in s.  14 of  the  Act referred to actual possession of  the  property whether  the property was acquired before or after  the  Act came  into  force.  This was a condition  precedent  to  the applicability  of  the provisions of s. 14  to  the  present case.   Since the Act came into force on June 17, 1956,  and the decision of the High Court was given on March 25,  1955, the  question  as  to who was in actual  possession  of  the estate  of Veerappa did not arise for consideration  on  the case of the appellant set out in his plaint.  The  appellant should accordingly be given an opportunity to have a finding recorded  on this question after the taking of  evidence  in that  respect.   On behalf of the respondents it  was  urged that the words " any property possessed by a female Hindu  " did not refer merely to actual physical possession only  but to ownership and possession in law as well. It was further urged on behalf of the respondents that  even if  it  be assumed that the words " possessed  by  a  female Hindu " mean actual possession then, in the present case, it had  been proved that Veeravva was in actual  possession  of the  estate  of Veerappa when the Act came into  force.   It could  not  be  disputed  that on  the  death  of  Veerappa, Veeravva  came  into possession of his estate and  that  she remained in possession at least until 1942 when the adoption of  the second defendant is said to have taken  place.   But

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even on the adoption of the second defendant, the  agreement to adopt dated September 18, 1942, stated that Veeravva  was to  remain in possession of her husband’s estate during  her life  time  in  spite  of  the  adoption.   In  the  written statement filed by Veeravva and the second defendant it  was clearly  stated in para. 6 thereof that Veeravva  came  into possession of her husband’s property and that she  recovered possession 974 of the property covered by the decree in 0. S. 20 of 1921 on the file of the Subordinate Judge’s Court, Bellary, and that she had been in sole possession of the said property  up-to- date and that although she had adopted the second  defendant on  October  11, 1942, it was subject to  retention  of  the enjoyment, possession and management by her of her husband’s property during her life time.  An affidavit had been  filed in  this  Court  by the second defendant  in  which  he  has clearly admitted that Veeravva is still in possession of his adoptive  father’s estate in pursuance of the  agreement  of September  18, 1942.  This was an admission against his  own interest by the second defendant which he was not likely  to make unless it was a fact that Veeravva was in possession of the estate since her husband’s death up to the present.   In answer to the affidavit of the second defendant and Veeravva that she was in actual possession, the appellant had  failed to  file an affidavit with any clear assertion that  to  his knowledge  Veeravva  was not in Possession.   The  affidavit filed by the appellant was in the nature of submissions made to the Court rather than an affidavit in which facts to  his knowledge  were  asserted.   In  para. 2  he  had  made  the significant statement " I understand that the possession  of the  suit  properties has been and is now, in truth  and  in fact,  with the alleged adopted son, the second  petitioner. He is in possession of these properties and is dealing  with them." He did not disclose bow he came to under. stand this. He  certainly  did not assert that all that  was  stated  in para.  2  was  to his knowledge.   As  an  alternative,  the appellant  in para. 4 of his affidavit had submitted  ,If  I succeed in proving that the adoption is not true and  valid, the   petitioners  cannot  turn  round  and  say  that   the possession of the first petitioner is that of a widow of  an intestate  and  invoke  the  provisions  of  s.  14  of  the Succession Act." He had further submitted in this  paragraph that,  even on the case of the respondents set out in  their petition  for adding additional grounds,  Veeravva’s  estate was  divested  by  the  adoption,  and  as-  she  came  into possession by reason of the ante-adoption agreement 975 Exbt.  D-25, s. 14 of the Act was not applicable.  It  seems to us that if it were permissible to decide the question  of Veeravva’s  possession on only the affidavits before us,  we would  find  no  difficulty  in  holding  that  she  was  in possession  of her husband’s estate when the Act  came  into force.  It is to be remembered, however, that this  question has arisen now and the appellant has had no real opportunity to  establish his assertion that the second defendant is  in actual  possession  and  not  Veeravva.   It  is   necessary therefore  to  consider  the true scope and  effect  of  the provisions of sub-s. (1) of a. 14 of the Act.  If the  words " possessed by a female Hindu " occurring therein refer only to  actual physical possession, it may be necessary to  call for a finding on the question of such possession; if, on the contrary,  these words have a wide connotation  and  include constructive   possession   or  possession   in   law,   the preliminary objection can be determined on the footing  that

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Veeravva was in such possession at the relevant time. The provisions of s. 14 of the Act have been the subject  of scrutiny and interpretation by various High Courts.  In  the case  of Rama Ayodhya Missir v. Raghunath Missir (1) and  in the case of Mt.  Janki Kuer v. Chhathu Prasad (2) the  Patna High Court took the view that the effect of ss. 14 and 15 of the Act was that a reversioner recognised as such under  the Hindu  law  was  no more a reversioner, as  a  female  Hindu possessing  any property, whether acquired before  or  after the  commencement of the Act, held not a limited estate  but an absolute estate therein, and after the coming into  force of the Act, he had no right of reversion or any kind Of Spes successionsis.  The High Courts of Calcutta, Andhra  Pradesh and Madhya Pradesh have taken a view which does not  support the view expressed by the Patna High Court in the  aforesaid cases, The High Court of ’Madhya Pradesh in the case of  Mt. Lukai  v. Niranjan (3) dissented from the decisions  of  the Patna High Court in the above-mentioned cases.’ Indeed,  the Patna High Court in the case of (1)A.I.R. 1957 Pat. 480.     (2) A.I.R. 1957 Pat. 674.        (3) A.I.R. 1058 Madh.  Pra. 160. 976 Harak  Singh  v. KailaSh Singh (1)  overruled  its  previous decisions  referred to above, and rightly pointed  out  that the  object  of the Act was to improve the legal  status  of Hindu  women, enlarging their limited interest  in  property inherited or held by them to an absolute interest,  provided they  were in possession of the property when the  Act  came into  force and, therefore, in a position to take  advantage of  its beneficial provisions; but the Act was not  intended to  benefit alienees who with their eyes open purchased  the property   from  the  limited  owners   without   justifying necessity before the Act came into force and at a time  when the vendors had only a limited interest of Hindu women. In  the  case  before us, the essential  question  for  con- sideration is as to how the words "any property possessed by a  female  Hindu,  whether  aquired  before  or  after   the commencement  of  this Act " in a. 14 of the Act  should  be interpreted.  Section 14 refers to property which was either acquired  before  or after the commencement of the  Act  and that  such property should be possessed by a  female  Hindu. Reference  to property acquired before the  commencement  of the  Act certainly makes the provisions of the  section  re- trospective,  but even in such a case the property  must  be possessed  by a female Hindu at the time the Act  came  into force  in  order  to  make the  provisions  of  the  section applicable.   There is no question in the present case  that Veeravva  acquired  the  property of  her  deceased  husband before  the  commencement  of the Act.  In  order  that  the provisions  of s. 14 may apply to the present case  it  will have  to  be  further  established  that  the  property  was possessed  by her at the time the Act came into  force.   It was  the case of the appellant that the estate  of  Veerappa was  in  actual possession of the second defendant  and  not Veeravva at the relevant time.  On behalf of the  respondent it  was  urged that the words " possessed by " had  a  wider meaning  than actual physical possession, although  physical possession may be included in the expression. (1)  A.I.R. 1958 Pat. 581. 977 In  the  case of Gaddam Venkayamma v.  Gaddam  Veerayya  (1) Viswanatha  Sastri,  J., with whom Satyanarayana  Raju,  J., agreed, expressed the opinion that "the word ’ possessed’ in s.  14  refers to possession on the date when the  Act  came into force. course, possession referred to in s. 14 need not

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be actual physical possession or personal occupation of  the property  by the Hindu female-but may be possession in  law. The possession of a licensee, lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purpose  of s. 14.  The word " possessed " is used in s.  14 in  a  broad sense and in the context possession  means  the state  of  owning  or having in one’s  hands  or  power.  it includes possession by receipt of rents and profits.  "  The learned Judges expressed the view that even if a  trespasser were in possession of the land belonging to a female  owner, it  might conceivably be regarded as being in possession  of the female owner, provided the trespasser had not  perfected his  title.  We  do not think that it is  necessary  in  the present case to go to the extent to which the learned Judges went.  It is sufficient to say that possessed     " in s. 14 is used in a broad sense and in the context means the  state of owning or having in one’s hand or power.  In the case  of Gostha Behari v. Haridas Samanta (2), P. N. Mookherjee,  J., expressed  his opinion as to the meaning of the words "  any property  possessed  by a female Hindu "  in  the  following words:- "The opening words in " property possessed by a female Hindu obviously  mean  that  to come within  the  purview  of  the section  the  property must be in possession of  the  female concerned at the date of the commencement of the Act.   They clearly  contemplate  the female’s possession when  the  Act came  into  force.  That possession might have  been  either actual or constructive or in any form recognised by law, but unless  the  female  Hindu,  whose  limited  estate  in  the disputed property is claimed to have been transformed into (1) A.I.R. 1957 Andh.  Pra. 280. 123 (2) A.I.R. 1957 Cal. 557, 559. 978 absolute estate under this particular section, was at  least in  such possession, taking the word " possession "  in  its widest  connotation,  when  the Act  came  into  force,  the section would not apply-". In our opinion, the view expressed above is the correct view as  to  how the words " any property possessed by  a  female Hindu  " should be interpreted.  In the present case if  the adoption  was invalid, the full owner of  Veerappa’s  estate was  his widow Veeravva and even if it be assumed  that  the second defendant was in actual possession of the estate  his possession  was  merely  permissive  and  Veeravva  must  be regarded  as being in constructive possession of it  through the  second defendant.  In this situation, at the time  when the  Act came into force, the property of Veerappa  must  be regarded in law as being possessed by Veeravva. It  was  suggested that according to the will  of  Veerappa, Exbt.   P_2(a),  in the properties mentioned in  para.  1-of that  will,  Veeravva  got only a  restricted  estate.   The provisions  of para. 4 of the will, however, make  it  clear that  they  would  come  into force  only  if  the  trustees mentioned  in  the will and Veeravva  should  disagree.   No material  was  shown to us that, in fact, the  trustees  and Veeravva  had disagreed and that the provisions of  para.  4 were given effect to.  Paragraph 12 of the will also  showed that  if the adoption was invalid, the property devolved  on Veeravva as in intestacy.  It is clear, therefore, that  the provisions of para. 4 are of no assistance to the  appellant in  applying  the provisions of sub-s. (2) of s. 14  of  the Act.   Reference  was  also  made to  the  contents  of  the agreement, Exbt.  D - 25, dated September 18, 1942, in  this

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connection.   It is clear.’ however, that by this  agreement no estate was conferred on Veeravva and she did not  thereby acquire any estate, much less a restricted estate.  All that this document stated was that there was an agreement between the  guardians  of the boy to be adopted and  Veeravva  that even  if  the  boy  is adopted,  Veeravva  would  remain  in possession and enjoyment of her husband’s estate during  her life time.  In our opinion, there is 979 no material on the record by which it can reasonably be said that  the  provisions  of sub-s. (2) of s.  14  of  the  Act applied to the present case. It was urged that the act of Veeravva in adopting the second defendant was to bring in a stranger and this action of hers could be questioned by a reversioner, as any alienation made by  her, during her life time.  Reference was made to s.  42 of  the  Specific  Relief Act,  Illustration  (f).   In  our opinion,  this  is  of no avail to  the  appellant,  because Illustration (f) obviously refers to a Hindu widow’s  estate and  has  no  reference to a full owner.   The  right  of  a reversioner as one of the heirs under s. 42, Specific Relief Act, is limited to the question of preserving the estate  of a  limited  owner  for the benefit of  the  entire  body  of reversioners;  but as against a full owner, the  reversioner has  no such right.  In our opinion, under the Act  Veeravva becoming  a  full owner of her husband’s  estate,  the  suit could not succeed and the appeal must accordingly fail. In  our opinion, the appellant’s suit was not  maintainable, having regard to the provisions of s. 14 of the Act, even if it be assumed that there was no valid adoption of the second defendant.   The appeal accordingly fails and  is  dismissed with costs. Appeal dismissed.