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PETITIONER: JAGANNATHAN PILLAI

       Vs.

RESPONDENT: KUNJITHAPADAM PILLAI & ORS.

DATE OF JUDGMENT21/04/1987

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) RAY, B.C. (J)

CITATION:  1987 AIR 1493            1987 SCR  (2)1070  1987 SCC  (2) 572        JT 1987 (2)   235  1987 SCALE  (1)861  CITATOR INFO :  R          1987 SC2251  (12)  D          1989 SC1179  (16)  D          1991 SC1581  (10,14)

ACT:    Hindu Succession Act, 1956: S. 14(1)--Hindu widow regains possession   of  property  subsequent  to  commencement   of Act----Nature  of  her right or interests--Whether  full  or limited owner.

HEADNOTE:     Section 14(1) of the Hindu Succession Act, 1956 provides that  any  property  possessed by a  female  Hindu,  whether enquired  before or after the commencement of the Act  shall be  held by her as full owner thereof and not as  a  limited owner. The Explanation to the sub-section included  property acquired by a female Hindu by purchase within the expression ’property.’     The Hindu widow, in the instant case, who had acquired a limited  estate from her husband by reason of his death  was not in possession on the date of the enforcement of the Act, she having transferred the property in favour of an alienee, But,  later  the  possession was restored to  her  upon  the original alienee reconveying the property to her,  reversing the transaction. Her right to the said property was assailed by the appellant before the Madras High Court and a question arose  as  to  whether upon the  reconveyance  of  the  very property. which she had alienated, after the enforcement  of the  Act  she would become full owner in respect of  such  a property by virtue of s. 14(1) of the Act.     The  High Court following its earlier view in  Chinnako- landai  Goundan v. Thanji Gounder, (ILR 1966 I  Madras  326) and that of Punjab High Court in Teja Singh v. Jagat  Singh, (AIR  1964 Punjab 403), Bombay High Court in Ramgowda  Auna- gowda  v. Bhausaheb, (ILR 52 Bom. 1) and Gujarat High  Court in  Champa v. Chandrakant (AIR 1973 Gujarat 227), held  that she would become an absolute owner of such a property in the aforesaid situation.     In this appeal by certificate. it was contended for  the appellant. relying on the view pronounced by the Orissa High Court  in  Ganesh Mahanta v. Sukria Bewa, (AIR  1963  Orissa

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167) and Andhra Pradesh High Court in Medicherla Venkatarat- nam v. Siddani Palamma, 1970 II Andhra Weekly Reporter 264), that s. 14(1) of the Act does not come 1071 into play in the case of a retransfer of the property to the widow  subsequent  to the commencement of the  Act,  as  the transferee  or the donee, who had only a  limited  interest. cannot  transfer  a title higher than the  title  that  they themselves had in the property. Dismissing the appeal, the Court,     HELD: 1. A Hindu woman is entitled to become an absolute owner  of  the property which she had  alienated,  upon  its reconveyance to her by the transferee after the  enforcement of  the  Hindu Succession Act, 1956 by  virtue  ors.  14(1). [1082G; 1075B]     2.1 The whole purpose of s. 14(1) is to make a widow who has  a  limited  interest a full owner  in  respect  of  the property  in question regardless of whether the  acquisition was  prior to or subsequent to the commencement of the  Act. It comes into operation at the point of time when the  right of the Hindu widow to the property is called into  question. All  that  has to be shown by her then is that she  had  ac- quired  the  property  and that she  was  possessed  of  the property. Once it is shown by her that she was possessed  of the  property on that date in the eyes of law  the  property held by her would be held by her as "full owner" and not  as limited owner. [1079G; 1075GH; 1077BC]     2.2  Possession,  physical or constructive or  in  legal sense,  on the date of coming into operation of the  Act  is not  the sine-qua-non for the acquisition of full  ownership in  property by the Hindu female. The expression  "possessed of" used in s. 14(1) pertains to the acquisition of a  right or  interest in the property and not to physical  possession acquired by force or without any legal right. The expression "whether  acquired before or after the commencement  of  the Act"  used  in s. 14(1) makes it evident that  any  property possessed by a Hindu female whether acquired before or after the commencement of the Act, would be held by her as a  full owner thereof and not as a limited owner. If the legislature had  not contemplated a Hindu widow becoming possessed of  a property by virtue of an acquisition after the  commencement of  the  Act the aforesaid expression would  not  have  been used. [1076FG; 1081C; 1076CD; 1081AB]     2.3 When the Hindu female in the instant case bought the property  from the alienee to whom she had sold it prior  to the  enforcement of the Act, she had acquired  the  property within  the  meaning of the explanation to s. 14(1)  of  the Act. The transaction by which the vendee of the Hindu female had  acquired an interest in the said property was  reversed and she was restored to the position prevailing before the 1072 transaction  took place. In the eyes of law the  transaction stood obliterated or effaced. Thus, on the date on which her right  to  the property was called into  question,  she  was possessed  of the property which she had inherited from  her husband, she having by then reacquired and regained what she had  lost,  and her limited right had natured  into  a  full ownership in view of s. 14(1) of the Act. [1077C, EF; 1078C]     3.  By the reversal of the transaction no right  of  the reversioner  was affected, for he had merely a spes  succes- sions in the property and nothing more. His possible  chance of succeeding upon the death of the Hindu female disappeared from the horizon as soon as what she had temporarily  parted with was restored to her. Therefore, whether a challenge was made during her life-time or it was made after her death, if

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the question arose as to what was the nature of interest  in the  property held by the concerned Hindu female  after  the reversal of the transaction the answer would be that she had a  ’full ownership’ and not a ’limited ownership’.  [1078DE; 1077H-IO78A]     4. If the transferee from the concerned Hindu female had transferred his right, title and interest in the property to a  third person instead of transferring it back to her,  the principle that the transferor cannot transmit a better title or  a title higher than that possessed by him at  the  given time would have come into play. Not otherwise. The  transac- tion  having  been reversed the Hindu widow  became  re-pos- sessed of the property which she had possessed prior to  the transfer to the original alienee or the donee and her  right straightaway  matured  into full ownership by virtue  of  s. 14(1). [1078B; 1079DE]     5.  The case of the widow who had temporarily  lost  the right in the property by virtue of the transfer in favour of the  alienee or the donee cannot be equated with that  of  a stranger.  The Act is intended to benefit her. And when  she becomes possessed of the property, having regained precisely that  interest  which she had temporarily  lost  during  the duration  of the eclipse, s. 14(1) would come to her  rescue which would not be the matter in the case of a stranger  who cannot invoke s. 14(1). [1080F] Kotturuswamy v. Veeravva, (AIR 1959 S.C. 577) distinguished.     Chinnakolandai  Goundan v. Thanji Gounder, (ILR  1966  I Madras  326);  Teja Singh v. Jagat Singh, (AIR  1964  Punjab 403);  Ramgowda Aunagowda v. Bhausaheb, (ILR 52 Bom. 1)  and Champa v. Chandrakant, (AIR 1973 Gujarat 227), approved. 1073     Ganesh Mahanta v. Sukria Bewa, (AIR 1963 Orissa 167) and Medicherla Venkataramam v. Siddani palamma, (1970 II  Andhra Weekly Reporter 264), overruled.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1196  of 2973.     From  the  Judgment and Decree dated  20.9.1971  of  the Madras High Court in Appeal No. 425 of 1964.       T.S. Krishnamoorthy Iyer. K. Ram Kumar and K. Ram for the Appellant.     S.T.  Desai,  K. Ramamurthy and A.T.M. Sampath  for  Re- spondents No. 1 and 2. Rajendra Chowdhary for the Respondent No. 3 to 5. The Judgment of he Court was delivered by     THAKKAR. J. Under the same law1 in an identical factsit- uation,  a Hindu widow who has inherited property in  Orissa or  Andhra Pradesh would be a ’limited owner’ and would  not become an ’absolute owner’ thereof whereas if she has inher- ited property in Madras, Punjab, Bombay or Gujarat she would become  an ’absolute owner’. That is to say, in a  situation where  a  Hindu widow regains possession of a  property  (in which  she had a limited ownership) subsequent to  the  com- mencement  of the Act2 upon the retransfer of the very  same property  to her by the transferee in whose favour  she  had transferred  it prior to the commencement, of the Act.  This incongruous  situation has arisen because of an  interpreta- tion and application of Section 14(1)3 of the Hindu  Succes- sion Act (Act) in the context of the 1. Section 14(1) of Hindu Succession Act of 1956 2. The  Act came into force on June 17, 1956. .lm

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3. "Section 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 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." 1074 aforesaid  fact-situation  the High Courts  of  Orissa4  and Andhra  Pradesh5  have proclaimed that she would be  only  a ’limited owner’ of such property on such retransfer  whereas the  High  Courts of Madras6, punjab7 Bombay8  and  Gujarat9 have  taken  a contrary view and have  pronounced  that  she would  become an ’absolute owner’ of such a property in  the aforesaid  situation.  We have therefore to  undertake  this exercise to remove the unesthetic wrinkles from the face  of law  to ensure that a Hindu widow has the same rights  under the  same  law  regardless of the fact  as  to  whether  her property  is  situated within the jurisdiction of  one  High Court or the other.     The  appellant who unsuccessfully canvassed  before  the High Court of Madras that the view propounded by the  Orissa and  Andhra Pradesh High Courts deserved to be preferred  to the view taken by the other four High Courts, has approached this  Court  by way of the present appeal by  a  certificate granted under Article 133(l)(a) of the Constitution of India that the matter involves a substantial question of law.     The  typical facts in the backdrop of which the  problem has to be viewed are :-                  (1) A Hindu female acquired a property, say               by reason of the death of her husband,  before               the commencement of the Act (i.e. before  June               17, 1956).                  (2) What she acquired was a widow’s  estate               as understood in shastric or traditional Hindu               Law.                  (3) She lost the possession of the property               on account of a transaction whereby she trans-               ferred the property in favour of an alienee by               a registered document of ’sale’ or ’gift’. 4. Ganesh Mahanta v. Sukria Rewa (AIR 1963 Orissa 167). 5.  Medicherla  Venkataratnam v. Siddani Palamma,  (1970  II Andhra Weekly Reporter 264). 6.  Chinnakolandai  Goundan v. Thanji Gounder, (ILR  1966  I Madras 326). 7. Teia Singh v. Jagat Singh, (AIR 1964 Punjab 403). 8. Ramgowda Aunagowda v. Bhausaheb, (ILR 52 Bom. 1). 9. Champa v. Chandrakant, (AIR 1973 Gujarat 227). 1075   (4)  The property in question was retransferred to her  by the  said  alienee ’after’ the enforcement of the Act  by  a registered document thus restoring to the widow the interest (such  as it was) which she had parted with earlier  by  re- versing the original transaction. It is in this factual background that the question will have to  be examined as to whether upon the reconveyance  of  the very  property which she had alienated after enforcement  of the Act, she would become a full owner in respect of such  a property by virtue ’of Section 14(1) of the Hindu Succession

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Act,  1956 (Act). Be it realized that the law has been  set- tled by this Court that the limited estate or limited owner- ship of a Hindu female would enlarge into an absolute estate or full ownership of the property in question in the follow- ing factsituation:    1. Where she acquired the limited estate in the  property before or after the commencement of the Act provided she was in possession of the property at the time of the coming into force of the Act on June 17, 1956.   2.  Even if the property in question was possessed by  her in lieu of her right to maintenance as against the estate of her deceased husband or the joint family property, she would be entitled to become a full or absolute owner having regard to  the fact that the origin of her right was  traceable  to the right against her husband’s estate,     The problem which has arisen in the present appeal is in the  context of a fact-situation where while the  widow  ac- quired  a  limited estate from her husband she  was  not  in possession  on the date of the enforcement of the  Act  viz. June  17, 1956, But the possession was restored to her  upon the original alienee reconveying the property to her.     On an analysis of Section 14(1) of the Hindu  Succession Act  of 1956, it is evident that the Legislature  has  abol- ished the concept of limited ownership in respect of a Hindu female  and has enacted that any property possessed  by  her would  thereafter  be held by her as a full  owner.  Section 14(1) would come into operation if the property at the point of time when she has an occasion to claim or assert a  title thereto.  Or, in other words, at the point of time when  her right  to  the said property is called  into  question.  The legal effect of Section 14(1) 1076 would  be  that after the coming into operation of  the  Act there  would be no property in respect of which it could  be contended  by anyone that a Hindu female is only  a  limited owner  and  not  a full owner. (we are for  the  moment  not concerned  with the fact that sub-section (2) of section  14 which provides that Section 14(1) will not prevent  creating a  restricted estate in favour of a Hindu female  either  by gift or will or any instrument or decree of a Civil Court or award  provided  the very document creating title  unto  her confers  a  restricted estate on her). There is  nothing  in Section  14  which  supports the proposition  that  a  Hindu female  should be in actual physical possession or  in  con- structive  possession  of any property on the  date  of  the coming  into operation of the Act. The  expression  ’possess ,’  has  been  used in the sense of having a  right  to  the property or control   over the property. The expression ’any property  possessed by Hindu female whether acquired  before or after the commencement of the Act’ on an analysis  yields to the following interpretation: .15    (1)  Any  property possessed by a Hindu  female  acquired before the commencement of the Act will be held by her as  a full owner thereof and not as a limited owner.    (2)  Any  property possessed by a Hindu  female  acquired after  the  commencement of the Act Will be held as  a  full owner thereof and not as a limited owner. Since the Act in terms applies even to properties  possessed by  a Hindu female which are acquired ’after’ the  commence- ment  of  the Act, it is futile to contend  that  the  Hindu female shall be in ’possession’ of the property ’before’ the commencement of the Act. If the property itself is  acquired ’after’  the  commencement  of the Act, there  could  be  no question  of the property being either in physical  or  con-

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structive possession of the Hindu female ’before’ the coming into  operation of the Act. There is, therefore,  no  escape from  the conclusion that possession, physical or  construc- tive  or  in a legal sense, on the date of the  coming  into operation of the Act is not the sine-qua-non for the  acqui- sition of full ownership in property. In fact, the intention of the Legislature was to do away with the concept of limit- ed  ownership  in respect of the property owned by  a  Hindu female  altogether.  Section 4 of the Act (it  needs  to  be emphasized)  provides that any text, rule or  interpretation of Hindu Law or custom or usage as part of that law in force immediately before the commencement of this Act, shall cease to  have effect with respect to any matter for which  provi- sion  is made in the Act. The legislative intent  is  there- fore, abundantly loud and clear. 1077 To  erase  the injustice and remove the  legal  shackles  by abolishing the concept of limited estate, or the women’s  or widow’s estate once and for all. To obviate  hair-splitting, the  Legislature has made it abundantly clear that  whatever be  the property possessed by a Hindu female, it will be  of absolute  ownership  and not of limited  ownership  notwith- standing the position obtaining under the traditional  Hindu law.  Once  it is shown that at the point of time  when  the question regarding title to property held by a Hindu  female arises, she was ’possessed’ of the property on that date, in the  eye of law, the property held by her would be  held  by her  as  ’full owner’ and not as ’limited owner’.  In  other words,  all  that  has to be shown by her is  that  she  had acquired  the property and that she was ’possessed’  of  the property at the point of time when her title was called into question.  When she bought the property from the alienee  to whom  she had sold the property prior to the enforcement  of the  Act, she ’acquired’ the property within the meaning  of the explanation to Section 14(1) of the Act. The right  that the  original  alienee  had to hold the  property  as  owner (subject to his right being questioned by the reversioner on the death of the female Hindu from whom he had purchased the property)  was restored to her when she got back  the  right that  she had parted with. Whatever she had lost  ’earlier’, was ’now’ regained by her by virtue of the transaction.  The status-quo-ante  was restored in respect of her interest  in the said property. In the eye of law, therefore, the  trans- action  by which the vendee of the Hindu female acquired  an interest  in the said property was ’reversed’ and the  Hindu female  was restored to the position prevailing  before  the transaction  took place. In other words, in the eye  of  law the  transaction  stood  obliterated or  effaced.  What  was ’done’  by virtue of the document executed in favour of  the transferee was ’undone’. Such would be the consequence of  a retransfer  by the alienee in favour of a Hindu female  from whom  he had acquired an interest in the property  in  ques- tion.  Thus on the date on which her right to  the  property was called into question, she was ’possessed’ of the proper- ty  which she had inherited from her husband she  having  by then  re-acquired  and regained what she had  lost.  And  by virtue  of  the operation of Section 14(1) of  the  Act  the limitation  which  previously  inhered  in  respect  of  the property  disappeared upon the coming into operation of  the Act. It is no longer open to anyone now to contend that  she had only a ’limited’ ownership in the said property and  not a ’full’ ownership, the concept of limited ownership  having been abolished altogether, with effect from the coming  into operation of the Act. Whether  a challenge was made during her lifetime or it  was

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made 1078 after  her death. if the question arose as to what  was  the nature  of  interest in the property held by  the  concerned Hindu  female  after  the reversal of  the  transaction  the answer  would be that she had a ’full’ ownership and  not  a ’limited’  ownership. It would have been a different  matter if the transferee from the concerned Hindu female had trans- ferred  his right, title and interest in the property  to  a third person instead of transferring it back to her. In that event  the principle that the transferor cannot  transmit  a better  title or a title higher than that possessed  by  the transferor  at  the  given time would come  into  play.  Not otherwise.  When the transaction was reversed and  what  be- longed  to her was retransmitted to her, what the  concerned Hindu  female  acquired was a right which she  herself  once possessed namely, a limited ownership (as it was known prior to  the  coming  into force of the  Act)  which  immediately matures  into or enlarges into a full ownership in  view  of Section 14(1) of the Act on the enforcement of the Act.  The resultant position on the reversal of the transaction  would be  that the right, title and interest that the alienee  had in  the property which was under ’eclipse’ during  the  sub- sistence of the transaction had reemerged on the  disappear- ance  of  the eclipse. In other words, the right  which  was under  slumber  came  to be awakened as soon  as  the  sleep induced  by the transaction came to an end. By the  reversal of the transaction no right of the reversioner was affected, for  he  had merely a spes successions in the  property  and nothing  more.  His possible chance of succeeding  upon  the death  of the Hindu female disappeared from the  horizon  as soon as what she had temporarily parted with was restored to her.     The  proponents of the view canvassed by  the  appellant placed strong reliance on the decision rendered by a learned Single  Judge of the Orissa High Court in Ganesh Mahanta  v. Sukria Bewa, A.I.R. 1963 Orissa 167 and the decision of  the Andhra  Pradesh  High Court in Medicherla  Venkataratnam  v. Siddani  Palamma  and Ors., A.W.R. 1970(2) 264  wherein  the Andhra Pradesh High Court has concurred with the view of the Orissa  High Court, The basis of the reasoning is  reflected in the following passage from Ganesh Mahanta’s case:               "Section 14(1) does not purport to enlarge the               right,  title or interest of the alienee  from               widow  with regard to the  transfers  effected               prior to the commencement of the Act. A  donee               from  the widow prior to the  commencement  of               the Act acquires only a widow’s estate in  the               gifted property and even if the donee retrans-               fers the property in favour of the widow after               the commencement of the Act, the widow               1079               would acquire only a limited interest and  not               an  absolute interest in the property  as  the               donee  cannot transmit any title  higher  than               what he himself had." It  appears  that  the Orissa and the  Andhra  Pradesh  High Courts have been carried away by the argument that the donee or the transferee who retransfers the property to the  widow cannot  transmit  a title higher than the  title  that  they themselves  had in the property. In substance, the  argument is  that as the transferee or the donee had only  a  limited interest,  what  he can transmit to the widow is  a  limited interest. This argument postulates that Section 14(1) of the Act does not come into play in the case of a retransfer  (by

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the  donee  or the transferee as the case may  be),  to  the widow subsequent to the commencement of the Act. There is  a basic  fallacy in proceeding on the assumption that  Section 14(1)  has  no impact or that the provision has no  role  to play  in case of such a retransfer. This line  of  reasoning overlooks  the fact that upon retransfer to the  widow,  the original  transaction is obliterated and what transpired  by virtue  of the consequence of the original  transfer  stands reversed.  The resultant position is that the widow  is  re- stored to the original position. Section 14(1) would not  be attracted  if  the widow was not possessed of  the  property after  the coming into force of the Act. But in view of  the reversal of the transaction, the widow becomes possessed  of the  property which she had possessed prior to the  transfer to  the  original alienee or the donee.  And  Section  14(1) straightaway  comes into play. By virtue of the reversal  of the original transaction, her rights would have to be ascer- tained  as if she became possessed of the property  for  the first  time,  after the commencement of the Act. It  is  now well settled that even if the widow has acquired the  inter- est  in the property and is possessed of the property  after the  commencement of the Act, her limited right would  ripen or  mature into an absolute interest or full ownership.  The question  that  has to be asked is as to whether  the  widow became  possessed of the property by virtue of the  acquisi- tion of interest subsequent to the operation of the Act  and whether  such  interest was a limited  interest.  The  whole purpose of Section 14(1) is to make a widow who has a limit- ed  interest  a  full owner in respect of  the  property  in question regardless of whether the acquisition was prior  to or subsequent to the commencement of the Act. On the date on which the retransfer took place, she became possessed of the property.  She  became possessed thereof subsequent  to  the commencement of the Act. In the result her limited  interest therein would enlarge into an absolute interest, for,  after the  commencement of the Act any property possessed  of  and held by a widow becomes a property in which she has absolute interest 1080 and not a limited interest, the concept of limited  interest having been abolished by Section 14(1) with effect from  the commencement  of  the  Act. The Orissa High  Court  and  the Andhra  Pradesh High Court have fallen in error  in  testing the matter from the stand point of the alienee or the  donee who  retransfers  the  property. The High  Court  posed  the question as to whether they would be entitled to full owner- ship  in view of Section 14(1), instead of posing the  ques- tion  as to whether the widow who becomes possessed  of  the property after the commencement of the Act would be entitled to  claim  that her limited interest had  enlarged  into  an absolute interest. Of course, Section 14(1) is not  intended to  benefit  the alienee or the donee, but is  intended  and designed  to benefit the widow. But the question has  to  be examined  from  the  perspective of the  widow  who  becomes possessed  of  the  property by virtue  of  the  acquisition pursuant  to the retransfer. The Andhra Pradesh  High  Court has  also fallen in error in accepting the fallacious  argu- ment  that the widow would be in the position of a  stranger to  whom the property was reconveyed or retransferred.  This fallacy is reflected in the following passage:               "   ....   Therefore  reconveyance  will   not               revive her original right in the property  and               she will be holding the estate reconveyed just               like  any  other  stranger  alienee,  for  the               lifetime  of  the alienor  widow,  though  she

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             happens to be that widow, and there can be  no               question  of  one  alienation  cancelling  the               other  and  the status-quo-ante,  the  widow’s               alienation being restored." The case of the widow who had temporarily lost the right  in the  property  by virtue of the transfer in  favour  of  the alienee  or  the  donee can not be equated with  that  of  a stranger  by  forgetting  the realities  of  the  situation. Surely,  the Act was intended to benefit her. And  when  the widow  becomes  possessed of the property,  having  regained precisely  that  interest  which she  had  temporarily  lost during the duration of the eclipse, Section 14(1) would come to her rescue which would not be the matter in the case of a stranger  who cannot invoke Section 14(1). A  further  error was committed in proceeding on the mistaken assumption  that the  decision in Kotturuswamy v. Veeravva, A.I.R. 1959  S.C. 577 supported the point of view which found favour with  the Orissa and the Andhra Pradesh High Courts. In Kotturuswamy’s case the alienation had taken place before the  commencement of  the Act and the widow had ’trespassed’ on  the  property and had obtained physical possession as a trespasser without any  title. It was not a case where the widow  had  regained possession lawfully and become entitled to claim 1081 the benefit of Section 14(1) having become possessed of  the property  by way of a lawful acquisition subsequent  to  the commencement  of  the Act. It was  overlooked  that  Section 14(1) in terms used the expression "whether acquired  before or  after the commencement of the Act". If  the  legislature had not contemplated a widow becoming possessed of a proper- ty by virtue of an acquisition after the commencement of the Act,  the aforesaid expression would not have been  used  by the  legislature.  The Orissa and the  Andhra  Pradesh  High Courts have failed to give effect to these crucial words and have  also failed to apply the principle  in  Kotturuswamy’s case  properly, wherein the widow obtained possession  as  a trespasser.  In fact the expression "possessed of"  pertains to  the acquisition of a right or interest in  the  property and not to physical possession acquired by force or  without any legal right. The ratio in Kotturuswami’s case was there- fore  misunderstood and misconceived by the Orissa  and  the Andhra  Pradesh High Courts. We agree with the reasoning  of the Madras High Court in Chinnakolandai v. Thanji, [1965]  2 M.L.J. 247: A.I.R. 1965 Mad. 497, wherein Ramamurthi, J. has made  the  point  in a very lucid manner  in  the  following passage:               "With respect, I am unable to agree with  this               view,  as the entire reasoning is  based  upon               the view that there is no difference between a               reconveyance  in favour of the  widow  herself               and  alienation in favour of the stranger.  In               my  opinion, there is all the  difference  be-               tween  a case of annulment of a conveyance  by               consent  of both the parties and a case  of  a               subsequent alienation by the alienee in favour               of  a stranger. In the former case the  effect               of the alienation is completely wiped out  and               the  original position is restored. This  dis-               tinction has not been noticed in the  decision               of  the Orissa High Court. The  acceptance  of               the  contention Urged by learned  counsel  for               the appellant would lead to startling results.               Take for instance an un-authorised  alienation               by  a guardian. If some cloud is cast  on  the               validity  of the alienation, and if the  alie-

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             nee,  not  willing to take any risk  till  the               attainment  of majority by the minor,  conveys               back  the property to the guardian,  it  would               not be open to the guardian to contend that he               had  acquired the voidable title of the  alie-               nee.  In  other words, he  cannot  contend  as               against the quondam minor that the income from               the  property would be his, and that till  the               minor takes proceedings for setting aside  the               alienation  the guardian should be  deemed  to               have acquired the right, title and interest of               the alienee. Such a               1082               contention on the face of it is untenable.                        The  instance of an alienation  by  a               trustee or an executor may also be considered.               If  after  the alienation by  the  trustee  or               executor the beneficiary raises some objection               about, the validity of the alienation  whether               well rounded or ill turned and if the  alienee               who  is not prepared to take any risk  conveys               back the property to the trustee or the execu-               tor  as the case may be it cannot possibly  be               contended that the trustee or the executor got               back  the property in any right  or  character               other than in which it was originally alienat-               ed.  As  a  result  of  the  reconveyance  the               property would form part of the trust  estate.               In all these cases the alienor suffers under a               legal disability from holding the property  in               any other capacity. It is needless to multiply               instances.  I  am  therefore  clearly  of  the               opinion  that there is nothing in law to  pre-               vent an alienation being completely  nullified               as if it never took effect provided the alien-               or and the alienee agree to such a course. The               position  is a fortiori where the  title  con-               veyed  to  the alienee is a voidable  one.  It               cannot  be disputed that when the  reversioner               files  the suit it is open to the  alienee  to               submit  to a decree. After such a  declaratory               decree  is passed, there is nothing  in  Hindu               law  which compels or obliges the  alienee  to               retain and keep the property himself and  hand               it  over to the reversioner. It  is  certainly               open to him, to respect the decree and  convey               back the property to the widow even before her               death. It is obvious that what the alienee can               do  after  the  termination of  the  suit  can               equally  be done during its  pendency.  Surely               the  alienee is not a trustee for  the  rever-               sioner  to  keep  the property  in  trust  and               deliver  the  property  on the  death  of  the               widow."     Our own reasons we have already articulated. The reason- ing  unfolded in the foregoing passage, we fully and  whole- heartedly endorse. In the result we uphold the view that  in such circumstances the concerned Hindu woman is entitled  to become an absolute owner of the property in question. The appeal fails and is dismissed. No costs. P.S.S.                                                Appeal dismissed. 1083

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