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PETITIONER: KUPPUSAMY

       Vs.

RESPONDENT: THE AUTHORISED OFFICERAND ASSISTANT COMMISSIONER(LAND REFORM

DATE OF JUDGMENT:       03/07/1996

BENCH: J.S. VERMA, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K. Venkataswami,J.      This appeal  by special  leave is preferred against the order of  the Tamil  Nadu Land  Reforms.  Special  Appellate Tribunal, Madras  in T.R.P.  No. 17  of 1994 dated 28 March, 1995.      One Sellappa  Gounder died  in the  year  1949  leaving behind  two  wives,  Nallammal  and  Periammal  and  also  a registered will  dated 16.2.1948.  The said Sellappa Gounder had a  daughter through  Periammal by  name  Kuppammal.  The appellant is  the son of said Kuppammal, As per the terms of the will,  the properties set out thereunder will have to be enjoyed by  the widows in equal shares during their lifetime and if any one of them pre-deceased, the survivor will enjoy the entirety.  And after  the death  of both,  his  daughter Kuppammal will  enjoy for  her life time and after her death the children of Kuppammal will enjoy absolutely.      Periammal, the second wife of the said Sellappa Gounder died in  1967. The provisions of the Tamil Nadu Land Reforms (Reduction  of  Ceiling  on  Land)  Act,  1970  (hereinafter referred to  as "the Act") came into force on 15.2.1970. The Authorities under  the Act  assumed that  on  the  death  of Periammal, Nellammal  succeeded  to  the  entire  estate  by survivorship. Further  treating the  first wife Nallammal as limited owner  and thereby  coming  within  the  purview  of ’owner’ under  section  3(33)  of  the  Principal  Act,  the authorities under  the  Act  declared  an  extent  of  36.65 ordinary acres  equivalent to  9.163 standard  acres out  of 91.78 1/2 ordinary acres equivalent to 24.393 standard acres of land  as surplus.  Aggrieved by that after exhausting the statutory remedies,  the appellant  moved the  High Court by filing Writ  Petition No. 8824 of 1989 which was transferred to the  Special Appellate  Tribunal (hereinafter referred to as "the Tribunal) on the constitution of the same.      Before the  Tribunal two  contentions were  raised. The first contention  was that the first wife Nallammal was only a limited owner and as per the will executed by the deceased Sellappa Gounder  and having  regard to the intention of the testator.  it  must  be  held  that  the  estate  will  vest absolutely with the children of Kuppammal and therefore, the

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provisions of the Act are not attracted. This contention was not accepted by the Tribunal in view of Section 3(33) of the Act which includes ’limited owner’ also in the definition of ’owner’. The  next contention  advanced before  the Tribunal was that  a dispute  regarding the  title to the property in question  has   already  been   decided  in  favour  of  the appellant, and  therefore the   proceedings  taken under the Land  Reforms  Act  should  be  modified  accordingly.  This contention also was rejected by the Tribunal holding that on date of  coming into   force  of the Act on 15.2.1970, there was no  litigation pending  regarding title  and interest of Nallammal and  as  such the subsequent proceedings cannot be taken note of.  In the result the Special Appellate Tribunal sustained the  surplus declared  under the Act. Aggrieved by the order  of the  Tribunal. the  present  appeal  has  been filed.      Before us  different arguments  were addressed  by  the learned  senior   counsel  Mr.   Sivasubramanian   for   the appellant. According  to him after the coming into  force of the Hindu Succession tot 19.6, both the widows   of Sellappa Gounder would  get the  properties given  to them  under The will absolutely  and as  per the  terms of  the  will,  they succeeded  to   the  properties   in  equal  shares  without partition by metes and bounds. That being the position, when the second wife died on 3.10.67, her undivided half share in the properties  will go  to her  children and the first wife will succeed  only to  the other half of the undivided share That being  the position,  it is  contended the  authorities went wrong in proceeding as if Nallammal and Permiammal were joint owners  and  on  the  death  of  Periammal,  Nallammal succeeded to  the entire  property by survivorship and it is contrary to the terms of the will read with section 14(1) of the Hindu Succession Act.      Mr. Krishnamurthy,  learned counsel  appearing for  the respondent State however submitted that on the facts of this case, section  14(2) will  apply and  not section  14(1). He also submitted that terms of the will only support the stand taken by  the authorities,  namely, that Nallammal succeeded to the entire property by survivorship. ;      To appreciate the rival contentions, it is necessary to set out  the terms  of the will as translated in English and filed in  this Court.  Relevant portion  of the will read as follows :      "The   undermentioned    properties      having come  to belong  to me as of      hereditary    rights    shall    be      bequeathed to  both individual nos.      1 &  2, being  my  wives  in  equal      share after  my lifetime  and enjoy      the  same  without  subjecting  the      respective   property    into   any      encumbrance till  the life  of both      of you  respectively. If one of you      were  to   pre-decease  the   other      individual,      the      surviving      individual shall  obtain the entire      properties  and   enjoy  the   same      without subjecting  the  properties      into  any   encumbrance  and   even      granting that  the same  were to be      encumbered, the  same would  not be      valid. After  the life  time of the      individual nos.1  and 2,  the third      individual aforesaid  being my only      daughter  namely   Kuppathal  shall

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    obtain the properties and enjoy the      same during  her life  time without      subjecting  the   same   into   any      encumbrance or alienate."      From the  above terms  it is clear that on the death of the testator,  the widows  shall succeed  to the  estate  in equal shares for enjoyment of the same which means that they succeeded to  the properties  as common  owners and  not  as joint owners.  If they  have succeeded  to the properties as common owners  then after the coming into force of the Hindu Succession Act  and in  the light  of section 14(1) and each widow being in possession of the undivided half share, their respective share enlarges into absolute one and they will be absolute owners  of  their  respective  half  share  in  the undivided estate left by the testator.      The  above   being  the  position,  Nallammal  will  be entitled to only half of the properties given under the will on the  death of  Periammal and not the entire properties as assumed  by  the  authorities  under  the  Ceiling  Act.  If Nallammal succeeded only to half of the properties under the will, then  on 15.2.1970,  which is  not in dispute, she was not in  a possession  of any  excess land and therefore, the surplus declared  on the  assumption that  she possessed  of properties in  excess of  ceiling limit cannot be sustained. On the  facts as  found by  the  Tribunal  below,  there  is nothing to  show that  Section 14(2) of the Hindu Succession Act is attracted.      In this  view of  the matter,  the  appeal  has  to  be allowed and. accordingly, it is allowed and the order of the Special Appellate Tribunal is set aside. No costs..