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Monday, November 9, 2015

permission to conduct college level counseling to fill up the left over vacant seats. The grievance of the appellants/petitioner is that because of the alleged arbitrary decision of Higher Education Department seats in these institutions have been left vacant.= It has further been contended by the appellants that despite almost more than 50% seats are lying vacant in their institutions, the respondent authorities have till date restricted the admissions to only those students who have appeared in the entrance examination conducted by Vyapam and not opened for all students possessing the minimum eligibility marks from the qualifying examination and have also proposed no program for college level counseling. Although respondent authorities have conducted almost three round of counseling, the seats are lying vacant in their institutions. Our attention was drawn to the decision dated 26.9.2014 of this Court passed in Civil Appeal No.5914 of 2011 and connected writ petitions and pleaded that this Court had directed the State Government of Uttar Pradesh to conduct the Counseling and allot students to the vacant seats. The entrance examination for such examination is conducted by the Professional Examination Board. For the academic session 2015-16, 63406 students participated in the examination conducted by Vyapam. It has been further submitted that under the Guidelines for admission framed by the State, an online registration is compulsory for all students who desired to participate in the counseling which was to be conducted after the entrance test. The Registration for first round counseling was held from 18.5.2015 to 28.5.2015 and three rounds of counseling were completed between 9.6.2015 to 29.6.2015. Thereafter, additional round of counseling was also conducted in July, 2015, for which all students were allowed/permitted to get the online registration subject to the only condition that they have participated in the entrance examination. According to the respondents, against total seats of 53,865 in the State of Madhya Pradesh for B.Ed. course, 63,406 students were allowed online registration. Despite four rounds of counseling, seats in the appellant colleges are remaining vacant, which means that the students are not interested in getting admission in these colleges. It has been further submitted that the entire pool of students who had participated in the Vyapam examination has been exhausted, and as such, no further counseling can be permitted now. In the background of all these facts, we do not find any reason to grant any interim relief to the appellants/petitioner to conduct a college level counseling and admit the students who have not even appeared in the entrance test. These applications are, therefore, dismissed.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                  CIVIL APPEAL NO.   13353          OF 2015
                  (arising out of SLP(C)No. 26311 of 2015)

VNS College of Physical Education and
Management Studies and others                Appellant(s)
                                   versus
State of Madhya Pradesh and others           Respondent(s)

                                    WITH

                      WRIT PETITION (C) NO. 674 OF 2015

Devi Ahilya Asaskiya Siksha
Mahavidyalayin Sanchalak Sangh               Petitioner(s)
                                   versus
State of Madhya Pradesh and others           Respondent(s)

                    CIVIL APPEAL Nos.13355-13357 OF 2015
              (arising out of SLP (C) Nos. 28803-28805 of 2015)

Preston College and others etc.                    Appellant(s)
                                   Versus

State of Madhya Pradesh and others           Respondent(s)


                               J U D G M E N T

|                                                         |
|M.Y. Eqbal, J.:                                          |


      Leave granted.
2.    Heard Mr. Vikas  Singh,  learned  senior  counsel  appearing  for  the
appellants/writ petitioner and Mr. Arjun  Garg,  learned  counsel  appearing
for the respondents.

3.     In  all  these  applications   the   appellants/petitioner,   private
recognized institutions are aggrieved by the impugned orders passed  by  the
High Court of Madhya Pradesh refusing to pass  an  interim  order  directing
these institutions for conducting counseling and admission to  the  students
possessing   minimum   eligible    marks.     In    other    words,    these
appellants/petitioner seek permission to conduct  college  level  counseling
to  fill  up  the  left  over  vacant   seats.    The   grievance   of   the
appellants/petitioner is that because of the alleged arbitrary  decision  of
Higher Education Department seats  in  these  institutions  have  been  left
vacant.

4.    It appears that by the impugned decision taken by  the  Department  of
Higher Education, admission to students have been restricted to  only  those
students who have appeared in the entrance examination conducted  by  Vyapam
and is not open for all students possessing the  minimum  eligibility  marks
from the qualifying examination and also opposed  the  request  for  college
level counseling.

5.      The contention of the appellants/petitioner are that the  counseling
by the respondent Department is being conducted in  complete  derogation  of
various mandatory provisions of Admission Rules 2008  framed  by  the  State
Government itself under the provisions  of  Madhya  Pradesh  Niji  Vyavsayik
Shikshan Santhan Adhiniyam 2007 where under it is  provided  that  if  after
two rounds of counseling, the seats are left vacant in the  private  unaided
colleges then the admission process would  be  open  for  all  the  students
having  minimum  eligibility  criteria  and  having  minimum  marks  in  the
qualifying examination.   It  is  pleaded  that  it  further  provides  that
“College level counseling” shall also be permitted to be carried out by  the
concerned college itself for filling its vacant seats.

6.    It has further been contended by the appellants  that  despite  almost
more than 50% seats are lying vacant in their institutions,  the  respondent
authorities have till date restricted the admissions to only those  students
who have appeared in the entrance examination conducted by  Vyapam  and  not
opened for all students possessing the minimum eligibility  marks  from  the
qualifying examination and have also proposed no program for  college  level
counseling.  Although respondent authorities  have  conducted  almost  three
round of counseling, the seats are lying vacant in their institutions.   Our
attention was drawn to the decision dated 26.9.2014 of this Court passed  in
Civil Appeal No.5914 of 2011 and connected writ petitions and  pleaded  that
this Court had directed the State Government of  Uttar  Pradesh  to  conduct
the Counseling and allot students to the vacant seats.

7.    The contention of the respondent-State of Madhya Pradesh is  that  the
State Government has issued circular for counseling for admission in  B.Ed.,
M.Ed. etc. courses in private institutions.  The  entrance  examination  for
such examination is conducted by the Professional  Examination  Board.   For
the  academic  session  2015-16,  63406   students   participated   in   the
examination conducted by Vyapam.  It has been further submitted  that  under
the Guidelines for admission framed by the State, an online registration  is
compulsory for all students who desired to  participate  in  the  counseling
which was to be conducted after the  entrance  test.  The  Registration  for
first round counseling was  held  from  18.5.2015  to  28.5.2015  and  three
rounds  of  counseling  were  completed  between  9.6.2015   to   29.6.2015.
Thereafter, additional round of  counseling  was  also  conducted  in  July,
2015, for which all  students  were  allowed/permitted  to  get  the  online
registration subject to the only condition that they  have  participated  in
the entrance examination.   According  to  the  respondents,  against  total
seats of 53,865 in the State of Madhya  Pradesh  for  B.Ed.  course,  63,406
students  were  allowed  online  registration.   Despite  four   rounds   of
counseling, seats in the appellant  colleges  are  remaining  vacant,  which
means that the students are not interested in  getting  admission  in  these
colleges.   It has been further submitted that the entire pool  of  students
who had participated in the Vyapam examination has been  exhausted,  and  as
such, no further counseling can be permitted now.

8.    In the background of all these facts, we do not  find  any  reason  to
grant any interim relief to the appellants/petitioner to conduct  a  college
level counseling and admit the students who have not even  appeared  in  the
entrance test.  These applications are, therefore, dismissed.

                                                              …………………………….J.
                                                                (M.Y. Eqbal)



                                                              …………………………….J.
                                                               (C. Nagappan)
New Delhi
November 06, 2015



THE REPEALING AND AMENDING ACT, 2015 NO. 17 OF 2015 [13th May, 2015.]

MINISTRY OF LAW AND JUSTICE
 (Legislative Department) New Delhi,
the 13th May, 2015/Vaisakha 23, 1937 (Saka)
The following Act of Parliament received the assent of the President on the 13th May, 2015, and is hereby published for general information:—


THE REPEALING AND AMENDING ACT, 2015 NO. 17 OF 2015 [13th May, 2015.]

 An Act to repeal certain enactments and to amend certain other enactments.

BE it enacted by Parliament in the Sixty-sixth Year of the Republic of India as follows:—

  1.   This Act may be called the Repealing and Amending Act, 2015. 
  2.  The enactments specified in the First Schedule are hereby repealed to the extent mentioned in the fourth column thereof.
  3.  The enactments specified in the Second Schedule are hereby amended to the extent and the manner mentioned in the fourth column thereof. 
  4.  The repeal by this Act of any enactment shall not affect any Act in which such enactment has been applied, incorporated or referred to; 
Short title. Repeal of certain enactments. Amendment of certain enactments. Savings.

 jftLVªh lañ Mhñ ,yñ—(,u)04@0007@2003—15 vlk/kkj.k
 EXTRAORDINARY Hkkx II — [k.M 1 PART II — Section 1 izkf/kdkj ls izdkf'kr PUBLISHED BY AUTHORITY lañ 21] ubZ fnYyh] cq/kokj] ebZ 13] 2015@oS'kk[k 23] 1937 ¼'kd½ No. 21]
 NEW DELHI, WEDNESDAY, MAY 13, 2015/VAISAKHA 23, 1937 (SAKA) bl Hkkx esa fHkUu i`"B la[;k nh tkrh gS ftlls fd ;g vyx ladyu ds :i esa j[kk tk ldsA Separate paging is given to this Part in order that it may be filed as a separate compilation.
REGISTERED NO. DL—(N)04/0007/2003—15 MINISTRY OF LAW AND JUSTICE (Legislative Department) New Delhi, the 13th May, 2015/Vaisakha 23, 1937 (Saka)
The following Act of Parliament received the assent of the President on the 13th May, 2015, and is hereby published for general information:—
2 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— and this Act shall not affect the validity, invalidity, effect or consequences of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred, or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liability, claim or demand, or any indemnity already granted, or the proof of any past act or thing; nor shall this Act affect any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure, or existing usage, custom, privilege, restriction, exemption, office or appointment, notwithstanding that the same respectively may have been in any manner affirmed, recognised or derived by, in or from any enactment hereby repealed; nor shall the repeal by this Act of any enactment provide or restore any jurisdiction, office, custom, liability, right, title, privilege, restriction, exemption, usage, practice, procedure or other matter or thing not now existing or in force.
THE FIRST SCHEDULE
(See Section 2)
 REPEALS
Year No. Short title Extent of repeal 1897
 4 The Indian Fisheries Act, 1897 The whole.
1947 47 The Foreign Jurisdiction Act, 1947 The whole.
1978 49 The Sugar Undertakings (Taking Over of Management) The whole.
 Act, 1978 1999 30 The Representation of the People (Amendment) Act, 1999 The whole.
1999 33 The Indian Majority (Amendment) Act, 1999 The whole.
1999 34 The Administrators-General (Amendment) Act, 1999 The whole.
1999 36 The Notaries (Amendment) Act, 1999 The whole .
1999 39 The Marriage Laws (Amendment) Act, 1999 The whole.
 2001 30 The Repealing and Amending Act, 2001 The whole.
2001 49 The Mariage Laws (Amendment) Act, 2001 The whole.
2001 51 The Indian Divorce (Amendment) Act, 2001 The whole.
2002 26 The Indian Succession (Amendment) Act, 2002 The whole.
2002 37 The Legal Services Authorities (Amendment ) Act, 2002 The whole.
2002 72 The Representation of the People (Third Amendment) Act, 2002 The whole.
2003 3 The Transfer of Property (Amendment) Act, 2002 The whole.
2003 4 The Indian Evidence (Amendment) Act, 2002 The whole.
2003 6 The Representation of the People (Second Amendment) The whole. Act,
2002 2003 9 The Representation of the People (Amendment) Act, 2002 The whole.
2003 24 The Election Laws (Amendment) Act, 2003 The whole.
2003 40 The Representation of the People (Amendment) The whole. Act,
2003 2003 46 The Election and Other Related Laws (Amendment) The whole.
Act, 2003 SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 3 2003 50 The Marriage Laws (Amendment) Act, 2003 The whole.
2004 2 The Representation of the People (Second Amendment) The whole. Act, 2003 2004 3 The Delimitation (Amendment) Act, 2003 The whole.
2005 4 The Delegated Legislation Provisions (Amendment) The whole.
Act, 2004 2005 39 The Hindu Succession (Amendment) Act, 2005 The whole.
2006 31 The Parliament (Prevention of Disqualification) The whole.
Amendment Act, 2006 2008 9 The Delimitation (Amendment) Act, 2008 The whole. 2008 10 The Representation of the People (Amendment) Act, 2008 The whole. 2009 41 The Representation of the People (Amendment) Act, 2009 The whole. 2010 30 The Personal Laws (Amendment) Act, 2010 The whole. 2010 36 The Representation of the People (Amendment) Act, 2010 The whole. 2012 29 The Anand Marriage (Amendment) Act, 2012 The whole. 2012 33 The Administrators-General (Amendment) Act, 2012 The whole. 2013 28 The Parliament (Prevention of Disqualification) The whole.
Amendment Act, 2013
THE SECOND SCHEDULE
 (See section 3)
AMENDMENTS
Year No.Short title Amendments
 2013 25 The Prohibition of Employment as Manual In the proviso to sub-section (3) of Scavengers and their Rehabilitation Act, section 1, for the words "the 2013 notification", the words "the said notification" shall be substituted.
2014 17 The Whistle Blowers Protection Act, 2011 (a) In the Enacting Formula, for the words "Sixty-second Year", the words "Sixty-fifth Year" shall be substituted; and (b) in sub-section (1) of section 1, for the figures "2011", the figures "2014" shall be substituted.
Year No. Short title Extent of repeal

DR. SANJAY SINGH,
Secretary to the Govt. of India.
 GMGIPMRND—1113GI(S3)—13-05-2015.
PRINTED BY THE GENERAL MANAGER,
GOVERNMENT OF INDIA PRESS, MINTO ROAD,
 NEW DELHI AND PUBLISHED BY THE CONTROLLER OF PUBLICATIONS, DELHI—2015.

Saturday, November 7, 2015

whether the High Court is justified in reversing the order passed by the Trial Court allowing the defendant-appellant to lead secondary evidence of the contents of the documents.= It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law. In the case of M. Chandra vs. M. Thangamuthu, (2010) 9 SCC 712, this Court considered the requirement of Section 65 of the Evidence Act and held as under:- “47. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party.”After considering the entire facts of the case and the evidence adduced by the appellant for the purpose of admission of the secondary evidence, we are of the view that all efforts have been taken for the purpose of leading secondary evidence. The trial court has noticed that the photocopy of the Exhibit DW-2/B came from the custody of DEO Ambala and the witness, who brought the record, has been examined as witness. In that view of the matter, there is compliance of the provisions of Section 65 of the Evidence Act. Merely because the signatures in some of the documents were not legible and visible that cannot be a ground to reject the secondary evidence. In our view, the trial court correctly appreciated the efforts taken by the appellant for the purpose of leading secondary evidence.For the reasons aforesaid, the impugned order passed by the High Court cannot be sustained in law. The appeal is accordingly allowed and the order passed by the High Court is set asideHowever, we make it clear that mere admission of secondary evidence, does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                       CIVIL APPEAL NO. 13361 OF 2015
                 (Arising out of SLP (C) No. 29621 of 2014)


Rakesh Mohindra                              Appellant (s)

                                   versus
|Anita Beri and others                                           |
|Respondent(s)                                                   |
|                                                                |


                               J U D G M E N T

|                                                         |
|M.Y. Eqbal, J.:                                          |


      Leave granted.

2.    This appeal by special leave is directed against order dated  2.9.2014
passed by learned Single Judge of the High Court  of  Himachal  Pradesh  who
set aside the order rendered by the trial court  permitting  the  defendant-
appellant to lead secondary evidence in the Civil Suit filed  by  respondent
no.1.


3.    The short question that arises for consideration by this Court  is  as
to whether the High Court is justified in reversing the order passed by  the
Trial Court allowing the defendant-appellant to lead secondary  evidence  of
the contents of the documents.

4.    The facts of the case lie in a narrow compass.

5.    The respondents-plaintiffs have filed a suit under Sections 34 and  38
of the Specific  Relief  Act,  1963  for  declaration  that  the  appellant-
defendant has no right, title or interest over  the  suit  property  in  any
manner  and  plaintiffs  are  in  possession  of  the  same.   Consequently,
defendant be restrained from causing any type of loss, injury and doing  any
such act which may in any manner, cause prejudice to  the  user,  possession
and title of the plaintiff qua the suit property.



6.    The subject matter of the suit is part of the land defined  as  Survey
No.  41,  Kasauli  Cantt.  Tehsil  Kasauli  and  structures/buildings   more
specifically known as “Dharma Prakash, Homestead”. One late Sh.  Duni  Chand
Advocate was owner in  possession  of  land  comprised  in  Survey  No.  41,
measuring  2.31  acres  described  as  “Kildare  Estate”  Homestead   Dharma
Prakash. Late Sh. Duni Chand, during his life  time  executed  a  gift  deed
with regard to the property owned by him which was registered as deed No.  2
with Sub Registrar, Kasauli. He gifted his properties  to  his  son  Justice
late Sh. Tek Chand. Justice late Sh. Tek  Chand  became  owner-in-possession
of the suit property. Justice  late  Sh.  Tek  Chand  expired  on  16.6.1996
leaving behind two daughters Smt. Anila Sood and Smt.  Anita  Beri  and  one
son Sh. Vikram Dhanda. Justice late Sh.  Tek  Chand  during  his  life  time
executed a legal and valid ‘will’ in favour of plaintiff No. 2,  Smt.  Anita
Beri, which was duly registered with Sub Registrar Chandigarh, as  deed  No.
410 dated 19.6.1984. The mother of defendant  was  step  sister  of  Justice
late Sh. Tek Chand. He was using portion of house known as ‘Homestead’  with
the permission of plaintiff No. 2, namely, Smt.  Anita  Beri.  She  came  to
know that defendant  was  misusing  the  license  and  raised  some  illegal
construction in the shape of platform,  so  as  to  use  the  same  for  the
purpose of car parking.



7.    According to the plaintiff, defendant has no right, title or  interest
over the suit property and as such could not change the nature of the  same.
A legal notice was issued on 5.11.2006. Reply was sent by the  defendant  to
the same. The defendant has also started causing  obstruction  to  the  path
which leads  from  circular  road  to  ‘Homestead  cottage’  and  ‘Homestead
building’. Plaintiff No. 2 has requested  the  defendant  not  to  lock  the
gate. However, the lock  on  the  gate  has  been  put  to  cause  temporary
obstruction, hindrance and prejudice to the user of  the  suit  property  by
plaintiff No. 2.



8.    On the other hand, the defendant-appellant’s case is  that  they  have
inherited the property from Smt. Vijaya Kumari who became the owner  of  the
suit property on the basis of the gift deed  dated  19.03.1965.  Appellant’s
further case is that Justice Tek Chand had issued  a  letter  of  disclaimer
dated  24.08.1982.   According  to  the  appellant,  the  said   letter   of
disclaimer was handed over by Justice Tek Chand to his  sister  Smt.  Vijaya
Kumari who in turn handed over to the appellant. On the basis of  letter  of
disclaimer, the  appellant  vide  letter  dated   21.07.2001  requested  the
authority, namely, Defence Estate Officer (DEO), Ambala Cantt for  effecting
mutation of the property in his name.



9.    On these backgrounds, the defendant filed an application in the  Trial
Court under Section 65 of the Evidence Act seeking permission to  prove  the
letter of disclaimer executed by Justice  Tek  Chand  by  way  of  secondary
evidence.  For that purpose, the defendant summoned the record of  GLR  from
the office of DEO, Ambala who is said to be the  custodian  of  the  record.
According to the appellant,  at  the  time  of  sanction  of  mutation  with
respect  to  the  suit  property,  the  appellant  had  filed  the  original
affidavits of the co-sharers  along with the letter of  disclaimer  executed
by Justice Tek Chand with one Photostat set lying  in  the  office  of  DEO,
Ambala.



10.   For the purpose of deciding the application under Section  65  of  the
Evidence Act, the appellant examined the concerned official to  produce  the
record available in the said office.  On the basis of the evidence given  by
the witness, who produced the record and  the  evidence  of  defendant,  the
Trial Court allowed the application and admitted the  letter  of  disclaimer
to be used as secondary evidence.



11.   As averred in the application, the defendant has summoned  the  record
of General Land Register from the  Office  of  D.E.O.  Ambala,  who  is  the
custodian of the record.  It  is  defendant’s  case  that  at  the  time  of
sanction of the mutation with regard to the suit property he had  filed  the
original affidavits of the  co-sharers  including  affidavits  and  original
letter of disclaimer of late Justice Sh. Tek Chand with  one  Photostat  set
of the same in the office of D.E.O. Ambala. On the  basis  of  the  original
letter of disclaimer and affidavits,  mutation  of  the  suit  property  was
sanctioned in favour of the deponent. The concerned  official  produced  the
original record in the Court on 4.7.2013 except  the  letter  of  disclaimer
executed by late Justice Sh. Tek  Chand  on  24.8.1982,  in  favour  of  Sh.
Harish Chandra Dhanda and Smt. Vijaya Kumari, the mother of  the  applicant.
The original disclaimer letter is supposed to be in the said office but  the
concerned official made statement on oath in the Court that the original  is
not in their office and their office has Photostat  copy  of  the  original,
and therefore, he produced the Photostat copy of the  letter.  According  to
the  defendant,  despite  his  efforts,  the  original  of  DW-2/B  was  not
traceable and has been misplaced/lost from the Office of D.E.O.  Ambala.  In
reply to the application, it was denied that the letter of  disclaimer  ever
existed or Photostat of the same was ever made. It  has  been  pleaded  that
late Justice  Sh.  Tek  Chand  never  executed  disclaimer  letter  and  the
Photostat copy was a forged one.



12.   Allowing the application of the defendant and granting  leave  of  the
court to lead  secondary  evidence  qua  document  Ext.DW-2/B,  trial  court
observed that:

“The photocopy Ext.DW-2/B has come from the custody of DEO  Ambala  and  the
applicant has been able to comply with the provision of Section  65  of  the
Indian Evidence Act as it has come in evidence that  the  original  document
i.e. letter of disclaimer Ext.DW-2/B was handed over  by  the  applicant  to
DEO Ambala.  In view of the aforesaid  this  court  is  satisfied  that  the
original document stands misplaced and the  applicant  is  allowed  to  lead
secondary evidence with respect to the  document  Ext.DW-2/B  as  enviasaged
under Section 65(c) of the Indian Evidence Act and  both  these  issues  are
decided in favour of the applicants and against the respondents.”



13.   Learned  Single  Judge  of  the  High  Court  in  the  civil  revision
preferred by the plaintiff-respondent no.1 set aside the aforesaid order  of
the trial court.


14.   Hence, this appeal by special leave by the defendant.

15.   As a general rule, documents are proved by leading  primary  evidence.
Section 64 of the Evidence Act provides that documents  must  be  proved  by
the primary evidence except in cases mention in Section 65 of  the  Evidence
Act.  In the absence  of  primary  evidence,  documents  can  be  proved  by
secondary evidence as contemplated under Section 63 of the Act  which  reads
as under: -
“Secondary evidence means and includes—
(1) certified copies given under the provisions hereinafter contained;
(2)  Copies  made  from  the  original  by  mechanical  processes  which  in
themselves ensure the accuracy of the copy, and copies  compared  with  such
copies.
(3) copies made from or compared with the original ;
(4) counterparts of documents as against the parties  who  did  not  execute
them;
(5) oral accounts of the contents of a documents given by  some  person  who
has himself seen it.
Illustration:
(a) A photograph of an original  is  secondary  evidence  of  its  contents,
though the two have not been compared,  if  it  is  proved  that  the  thing
photographed was the original.
(b) A copy compared with a copy of a letter made by  a  copying  machine  is
secondary evidence of the contents of the letter, if it is  shown  that  the
copy made by the copying machine was made from the original.
(c) A copy transcribed  from  a  copy,  but  afterwards  compared  with  the
original, is secondary  evidence;  but  he  copy  not  so  compared  is  not
secondary evidence of the original, although the  copy  from  which  it  was
transcribed was compared with the original.
(d) Neither an oral account of a copy compared with  the  original,  nor  an
oral account of a photograph or machine copy of the original,  is  secondary
evidence of the original.”


16.   Section 65 of  the  Act  deals  with  the  circumstances  under  which
secondary  evidence  relating  to  documents  may  be  given  to  prove  the
existence, condition or contents of the documents. For  better  appreciation
Section 65 of the Act is quoted herein below:-
“65. Cases in which secondary evidence relating to documents may be given:
Secondary evidence may be given of the existence, condition, or contents  of
a document in the following cases:-
(a) When the original is shown or appears to be in the possession or power—
of the person against whom the document is sought to be proved, or
of any person out of reach of, or not subject to, the process of  the  Court
or
of any person legally bound to produce it,
and when, after the notice mentioned in section 66,  such  person  does  not
produce it;
(b) when the existence, condition or contents  of  the  original  have  been
proved to be admitted in writing by the person against whom it is proved  or
by his representative in interest;
(c) when the original  has  been  destroyed  or  lost,  or  when  the  party
offering evidence of its contents cannot, for any other reason  not  arising
from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is public document within the meaning of section 74;
(f) when the original is a document of which a certified copy  is  permitted
by this Act, or by any   other law in force  in 40[India]  to  be  given  in
evidence ;
(g) when the originals consist  of  numerous  accounts  or  other  documents
which cannot conveniently be examined in court and the fact to be proved  it
the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of  the  contents  of  the
document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other  kind  of
secondary evidence, admissible.
In case (g), evidence  may  be  given  as  to  the  general  result  of  the
documents by any person who has examined them, and who  is  skilled  in  the
examination of such documents.”



17.   The pre-conditions  for  leading  secondary  evidence  are  that  such
original documents could not be produced  by  the  party  relied  upon  such
documents in spite of best efforts, unable to  produce  the  same  which  is
beyond their control.  The party sought to produce secondary  evidence  must
establish for  the  non-production  of  primary  evidence.   Unless,  it  is
established that the original documents is lost or  destroyed  or  is  being
deliberately withheld by the party in respect of that document sought to  be
used, secondary evidence in respect of that document cannot accepted.


18.   The High Court in the impugned order noted the following :-
“9. There is no averment about Ext. DW-2/B in  the  Written  Statement.  The
Written  Statement  was  filed  on  19.2.2007.  DW-2/B  infact  is  only   a
photocopy. The plaintiffs are claiming  the  property  on  the  basis  of  a
registered will deed executed in  her  favour  in  the  year  1984.  It  was
necessary for the defendant to prove that in what manner the document  dated
24.8.1982 was executed. The defendant while appearing as AW-1  has  admitted
in his cross-examination that except in his affidavit Ext.  AW-1/A,  he  has
not mentioned in any document that the letter of disclaimer was executed  by
Justice late Sh. Tek Chand in his presence. The statement of DW-2  does  not
prove that  Ext.  DW-2/A,  ever  existed.  DW-2  Sh.  Gurcharan  Singh,  has
categorically admitted in his cross-examination that he has not brought  the
original of Ext. DW- 2/B. He has also admitted  that  on  Ext.  DW-2/B,  the
signatures of P.C. Danda were not legible. Volunteered that, those were  not
visible. The learned trial Court has completely misread the oral as well  as
the documentary evidence, while allowing the application  under  Section  65
of the Indian Evidence Act, 1872, more particularly, the statements of  DW-2
Gurcharan Singh and DW-3 Deepak Narang. The applicant has  miserably  failed
to comply with the provisions of Section 65  of  the  Indian  Evidence  Act,
1872. The learned trial Court has erred by coming  to  the  conclusion  that
the applicant has taken sufficient steps to produce document Ext. DW- 2/B.”



19.   The High Court, following the ratio decided by this Court in the  case
of J. Yashoda vs. Smt. K. Shobha Rani, AIR 2007  SC  1721  and  H.  Siddiqui
(dead) by lrs. vs. A. Ramalingam, AIR 2011 SC 1492, came to  the  conclusion
that the defendant failed to  prove  the  existence  and  execution  of  the
original documents and also failed to prove that he  has  ever  handed  over
the original of the disclaimer letter dated 24.8.1982  to  the  authorities.
Hence, the High Court is of the view that no case is made out  for  adducing
the secondary evidence.

20.   The witness DW-2, who is working as UDC in the office  of DEO,  Ambala
produced the original GLR register.  He has produced four  sheets  of  paper
including a photo copy of letter of disclaimer.   He  has  stated  that  the
original documents remained in the custody  of  DEO.  In  cross-examination,
his deposition is reproduced hereinbelow:-
“xxxxxxxx by Sh. M.S. Chandel, Advocate for the plaintiff No.2.
 I have not brought the complete file along with the record.   I  have  only
brought those documents which were summoned after taking  up  the  documents
from the file.  As on today, as per the GLR, Ex.DW-2/A, the name  of  Rakesh
Mohindra is not there. His name was deleted vide order  dated  29.8.2011.  I
have not brought the original of Ex.DW-2/B.  It is  correct  that  Ex.DW-2/D
does not bear the signatures of Sh. P.C. Dhanda.   Volunteered.:  These  are
not legible.  Ex.DW-2/C is signed but the signatures  are  not  leible.   On
the said document the signatures of the attesting officer  are  not  legible
because the document became wet.  I cannot say whose  signatures  are  there
on these documents.  On Ex.DW-2/E the signatures at the place deponent  also
appears to have become illegible because of water. Ex.DW-2/F also bears  the
faded signatures and only Tek Chand is legible on  the  last  page.   It  is
incorrect to suggest that the last page does not have the signatures of  the
attesting authority.  Volunteered: These are faded, but  not  legible.   The
stamp on the last paper is also not legible.   There  is  no  stamp  on  the
first and second page.  In our account, there is no family  settlement,  but
only acknowledgement of family settlement.  I do not know how many  brothers
Rakesh Mohindra has. It is correct that the original of Ex.DW-2/H  does  not
bear the signatures of Sh. Abhay Kumar.  I do not  know  whether  Sh.  Abhay
Kumar Sud and Rakesh  Mohindra  are  real  brothers.   The  above  mentioned
documents were  neither  executed  nor  prepared  in  my  presence.   It  is
incorrect to suggest that the above mentioned documents are forged.   It  is
incorrect to suggest that because of this reason  I  have  not  brought  the
complete file.”

 21.  In the case of Rai Baijnath (dead)  by  Kedarnath  Goenka  vs.Maharaja
Sir pavaneshwar Prasad Singh, AIR 1922 Privy  Council  page  54,  a  similar
question came for  consideration  as  to  the   admissibility  of  secondary
evidence in case of loss of  primary  evidence.    Lord  Phillimore  in  the
judgment observed:-
“ It is, no doubt, not very likely that such a deed would be  lost,  but  in
ordinary cases, if the witness in whose custody the deed should be,  deposed
to  its  loss,  unless  there  is  some  motive  suggested  for  his   being
untruthful,  his  evidence  would  be  accepted  as  sufficient  to  let  in
secondary evidence of the deed.”


22.   It is well settled that if a party wishes to lead secondary  evidence,
the Court is  obliged  to  examine  the  probative  value  of  the  document
produced in  the  Court  or  their  contents  and  decide  the  question  of
admissibility of a document in secondary evidence.  At the  same  time,  the
party has to lay down the factual foundation to establish the right to  give
secondary evidence where the original document cannot be  produced.   It  is
equally well settled that neither mere admission of a document  in  evidence
amounts to its proof  nor mere making of an exhibit of a  document  dispense
with its proof, which is otherwise required to be done  in  accordance  with
law.

23.   In the case of M. Chandra vs. M. Thangamuthu, (2010) 9 SCC  712,  this
Court considered the requirement of Section 65 of the Evidence Act and  held
as under:-
“47. We do not agree with the reasoning of the High Court. It is  true  that
a party who wishes to rely upon the  contents  of  a  document  must  adduce
primary evidence of the contents, and only in  the  exceptional  cases  will
secondary  evidence  be  admissible.  However,  if  secondary  evidence   is
admissible, it may be adduced in any form in  which  it  may  be  available,
whether by production of a copy, duplicate copy of a copy, by oral  evidence
of the  contents  or  in  another  form.  The  secondary  evidence  must  be
authenticated by foundational evidence that the alleged copy is  in  fact  a
true copy of the original. It should be emphasised that  the  exceptions  to
the rule requiring primary evidence are designed  to  provide  relief  in  a
case where a party is genuinely unable to produce the  original  through  no
fault of that party.”

24.   After considering the entire  facts  of  the  case  and  the  evidence
adduced by the appellant for the  purpose  of  admission  of  the  secondary
evidence, we are of the view that  all  efforts  have  been  taken  for  the
purpose of leading secondary evidence.  The trial  court  has  noticed  that
the photocopy of the Exhibit DW-2/B came from the custody of DEO Ambala  and
the witness, who brought the record, has been examined as witness.  In  that
view of the matter, there is compliance of the provisions of Section  65  of
the Evidence Act.  Merely because the signatures in some  of  the  documents
were not legible  and  visible  that  cannot  be  a  ground  to  reject  the
secondary evidence.  In our view, the trial court correctly appreciated  the
efforts taken  by  the  appellant  for  the  purpose  of  leading  secondary
evidence.

25.   For the reasons aforesaid, the  impugned  order  passed  by  the  High
Court cannot be sustained in law.  The appeal  is  accordingly  allowed  and
the order passed by the High Court is set aside.

26.   However, we make it clear that mere admission of  secondary  evidence,
does not amount to its proof.  The genuineness,  correctness  and  existence
of the document shall have to be established during the trial and the  trial
court shall record the reasons before relying on those secondary  evidences.




                                                              …………………………….J.
                                                                (M.Y. Eqbal)


                                                              …………………………….J.
                                                               (C. Nagappan)
New Delhi
November 06C, 2015

whether the High Court is correct in law in interpreting the provisions of Section 14 of the Hindu Succession Act, 1956 (for short 'the Act') in arriving at a conclusion that the widow of the deceased P. Venkata Subba Rao acquired an absolute interest in the property by the operation of Section 14 of the Act.= In the impugned judgment, the High Court has elaborately discussed the facts of the case and the law applicable thereto and came to the conclusion that the trial court committed serious error of law in holding that by virtue of Section 14(2) of the Act, her limited right has not become absolute. 34. Though no specific word has been mentioned in Exhibit A-2 that in lieu of maintenance life interest has been created in favour of Veeraraghavamma, in our opinion in whatever form a limited interest is created in her favour who was having a pre-existing right of maintenance, the same has become an absolute right by the operation of Section 14(1) of the Hindu Succession Act.Though no specific word has been mentioned in Exhibit A-2 that in lieu of maintenance life interest has been created in favour of Veeraraghavamma, in our opinion in whatever form a limited interest is created in her favour who was having a pre-existing right of maintenance, the same has become an absolute right by the operation of Section 14(1) of the Hindu Succession Act.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 375 OF 2007


Jupudy Pardha Sarathy                        Appellant(s)

                                   versus

Pentapati Rama Krishna and others            Respondent(s)


                               J U D G M E N T

|                                                         |
|M.Y. Eqbal, J.:                                          |


       This  appeal  by  special  leave  is  directed  against  order  dated
21.9.2006 passed by learned  Single  Judge  of  the  High  Court  of  Andhra
Pradesh, who allowed the appeal preferred by Defendant no.1  and  set  aside
the judgment and decree of the trial Court in the  original  suit  preferred
by the appellant.

2.    The only question that needs consideration in this  appeal  is  as  to
whether the High Court is correct in law in interpreting the  provisions  of
Section 14 of the Hindu Succession  Act,  1956  (for  short  'the  Act')  in
arriving at a conclusion that the widow of the  deceased  P.  Venkata  Subba
Rao acquired an absolute interest  in  the  property  by  the  operation  of
Section 14 of the Act.

3.    The undisputed facts  are  that  the  said  suit  property  originally
belonged to one P. Venkata Subba Rao, who had three wives.  Only the  second
wife was blessed with  two  sons  and  one  daughter,  including  defendant-
Narasimha Rao.          Veeraraghavamma was the third wife of the  said   P.
Venkata Subba Rao but she did not have any issues.   P.  Venkata  Subba  Rao
executed a Will  in  the  year  1920(Exh.A2)  in  favour  of  his  3rd  wife
Veeraghavamma who in turn  executed  a  Will  dated  14.7.1971  (Exh.B1)  in
favour of defendant-Pentapati Subba Rao, and thereafter, she died  in  1976.
The case of the defendant is that the said P. Narasimha Rao has no right  to
transfer   the   suit   properties   in    favour    of    the    plaintiff.


4.    The  plaintiff’s-appellant’s  case  is  that  he  purchased  the  suit
property from one P. Narasimha Roa who was  having  a  vested  remainder  in
respect of  the  said  suit  property  on  the  expiry  of  life  estate  of
testator’s  wife  Veeraghavamma.   According  to  the   plaintiff-appellant,
during the life time of Veeraghavamma she enjoyed the properties  and  after
her death the property devolved upon the vendors of the plaintiff.



5.    The trial court noted the undisputed case of  both  the  parties  that
Will (Exh.A2)  was executed by late  P.  Venkata  Subba  Rao  in  favour  of
Veeraghavamma but she had limited interest to enjoy the property during  her
life time and thereafter the remainder  vested  with  P.  Narasimha  Rao  to
enjoy the said property as absolute owner after the death of  Veeraghavamma.
 However, the trial court held that life estate of Veeraghavamma  under  the
Will did not become enlarged into absolute estate  under  Section  14(1)  of
the Act and the vested remainder in favour of P. Narasimha Rao did  not  get
extinguished in respect of  the  scheduled  properties.    Accordingly,  the
suit was decreed.



6.    Aggrieved by the decision of the  trial  court  defendant  no.1  -  P.
Subba Rao preferred an  appeal  before  the  High  Court.   The  High  Court
allowed the appeal and set aside the judgment and decree of the trial  court
holding that Veeraghavamma became the absolute owner of  the  suit  property
by virtue of Section 14(1) and she had every  right  to  bequeath  the  said
property in favour of  P. Subba Rao, the first defendant under  Exhibits  B1
and B2.



7.    Hence, the present appeal by special leave by the  plaintiff.   During
the pendency of the appeal before the High Court, first defendant  died  and
his legal representatives were brought on record  and  are  arrayed  in  the
present appeal as respondent nos.1 to 3.   Respondent  no.  4  is  defendant
no.3, and Legal representatives of Respondent no.5, who was defendant  no.4,
were brought on record after his  death  during  pendency  of  this  appeal.
Rest respondents were brought on record as legal representatives  of  second
defendant, who died during pendency of the suit.  Since respondent no.4  has
vacated  the  suit  shop  and  delivered  possession  to  the  plaintiff  on
6.7.2006, appellant has moved before  us  an  application  for  deletion  of
respondent no.4 from the array of parties.  It is ordered accordingly.

8.    Before we decide the question involved in this appeal  we  would  like
to reproduce the contents of the Will (Exh.A1) which is as under:-

      “I, Pularvathi Venkata Subba Rao, S/o late Pularvathy Venkamma  Vysya,
Business, R/o Rajahmundhry, have executed the Will dt. 24.08.1920 with  good
consciousness and wisdom.

      I am now approximately 53 years.  Now I have  less  physical  strength
and consequently I may not survive for longer period, hence I have  proposed
to give all my properties  both  movable  and  immovable  mentioned  in  the
schedule below by way of this Will.

      My first wife died issueless.  My second wife got  two  sons  by  name
Manikyaro and Narasimha Rao and a daughter by name  Nagarathnamma.   My  2nd
wife also died.  Thereafter I married Veeraghavamma my third  wife  and  she
is alive.  She has  not  begotten  any  children.   I  have  house  property
bearing Municipal  D.No.6/875, another house bearing D.No.6/876 and  also  5
shop rooms abutting to them with vacant house site covered by D.No.6/870  in
Innespeta, Rajahmundry Village, Rajahmundry Sub Registry, E.G.  Dist.I  have
wet land of extent  ac15.17  cents  in  Rustumbada  village  Naraspuram  Sub
Registry, Naraspuram Taluk.  The said landed property was in the name of  my
2nd wife and after her life time my two sons mentioned above  got  the  same
mutated it in their names.

      I have a policy bearing No. 23232 in Oriental Life  Insurance  Company
and I have to receive monies from the said policy  and  also  silver,  gold,
brass articles house hold utensils Beeruva, Furniture,  iron  safe  etc.,  I
have made the following dispositions which are to take place after  my  life
time.

      My third wife Veeraghavamma shall enjoy for life the tiled house  with
site and compound wall and with half right in the well covered by  municipal
D.No.6/875, Rajahmundry and after life time of my wife my 2nd son  Narasimha
Rao shall have the property with absolute rights such  as  gift,  sale  etc.
My second son Narasimha Rao shall have absolute  rights  such  as  gift  and
sale in respect of the tiled house bearing D/no.6/876 and the 5  shop  rooms
covered    by D.No.6/870 and the sit abutting the above two properties  with
Chavidi and one Big latrine out of the two and that my wife  Veeraraghavamma
shall enjoy for life the small latrine covered by D.No.6/870 and  after  her
life time my son Narasimha Rao shall have the property with absolute  right.
 The said Veeraraghavamma is entitled to fetch water from the well  situated
in back yard of house bearing D.No.6/870.   My  eldest  so  Maniyarao  shall
have absolute rights such as gift and sale etc., in respect  of           ac
15.17 cents of Zeroyiti wet land of  Rustumbada  Village  Narasapuram  Taluk
and my eldest son Maniyarao shall pay Rs.650/- which I am liable to  pay  to
her and thus either Nagarathnamma or any one has got no right  in  the  said
property.

      The amount receivable from the Insurance Company referred above  shall
be recovered and my two sons, daughter and  my  wife,  all  the  four  shall
share the same equally and that the ornaments lying  with  them  shall  take
the same absolutely and that one shall not claim or demand for  any  oweties
against another.
(Emphasis given)
      This Will I have executed with full and  good  consciousness  and  the
same shall come into force after my life time.  The properties mentioned  in
this Will are all my  self  acquired  properties  and  I  did  not  get  any
ancestral properties.
      I reserve my right to change the contents of the Will during my life
time.
                                          Signed Pularvati Venkata Subba Rao

Attesting Witnesses

Modali Subbarayudu
Yendi Surayya
                                      Scribed by Pularvati Venkata Subba Rao
                                                    With his own handwriting
     The contents of the said will shall come into force after my life time.
                                       Signed by Pularvati Venkata Subbarao”


9.    The trial court although noticed the decision of  this  Court  in  the
case of  V. Tulasamma and others vs. Sesha Reddy (dead) by  Lrs.  (AIR  1977
SC 1944) but held that in that case on the basis  of  compromise  the  Hindu
widow  was  allotted  immoveable  properties  expressly  in  lieu   of   her
maintenance, and hence, Section 14(1) of the Act was readily  applicable  to
that case. Whereas,  the trial court held that the decision  of  this  Court
in the case of Mst Karmi vs. Amru & Ors., (AIR 1971 SC 745),  is  applicable
because in that case  the  Hindu  widow  succeeded  the  properties  of  her
husband on the strength of Will where under she was  given  life  estate  in
the properties. For better appreciation paragraphs 25,  26  and  27  of  the
trial court’s judgment are quoted thus:-

“25. The first defendant’s counsel placed heavy reliance   on  the  decision
reported in  Palchuri  Hanumayamma  vs.  Tadikamalla  Kotilingam  (1986  (1)
ALT.546), it is only in that decision it was held that it is  not  necessary
that the will or other documents under which property is given  to  a  Hindu
female should expressly specify that  the  property  is  given  to  a  Hindu
female should  expressly specify that the property is a given in lieu  of  a
pre-existing right  or right of maintenance and that  it  is  sufficient  if
only a right was in existence in favour of the  Hindu  female  on  the  date
when the document was executed.  It is  a  judgment  rendered  by  a  single
judge of the High Court.  It is a case where the High Court was  considering
the bequest of property to a Hindu widow under a will as life estate.

26.   In Vaddeboyina Tulasamma vs. Vaddeboyina Sesha Reddi (A.I.R.  1977  SC
1944) a Hindu widow obtained a decree for maintenance against  the  brothers
of her deceased husband and was executing the said decree  for  maintenance.
During that time, the Hindu Widow and the brothers of her  deceased  husband
entered  into  a  compromise  where  under  the  Hindu  widow  was  allotted
immovable  properties  to  be  enjoyed  only  as  limited  owner  power   of
alienation. It was a case where the  Hindu  Widow  was  allotted  properties
expressly in lieu of her maintenance and  satisfaction  of  her  maintenance
decree.  Therefore, Sec. 14 (1) of the Act is  readily  applicable  to  that
case.  On the other hand, in the decision reported in Mst Karmi vs.  Amro  (
A.I.R. 1971 SC 745) a  Hindu  widow  succeeded  to  the  properties  of  her
husband on  the strength of a Will where under she was given life estate  in
the properties.  In those circumstances the  Supreme  Court  held  that  the
Hindu widow having succeeded  to  the  properties  of  her  husband  on  the
strength of that will cannot claim any rights in these properties  over  and
above that given to her under that will and that the life  estate  given  to
her under the will cannot become an absolute estate under the provisions  of
the Hindu Succession Act.  It was a decision rendered  by  three  Judges  of
Supreme Court.   This  decision  was  not  referred  to  in  the  subsequent
decision of the year 1977 referred to above.  The decision of the year  1977
was also rendered by three judges of the Supreme  Court.   When  the  latter
decision  of the Supreme Court is in all fours with the facts  in  the  case
on hand, the former decision of the Supreme Court of the  year  1977  cannot
be applied to the facts of the present case.

27.   In Smt. Culwant Kaur vs. Mohinder Singh  (A.I.R.  1987  SC  2251)  the
provisions of Section 14(1) of the Act were applied because it  was  a  case
where the Hindu female was put in possession of the  property  expressly  in
pursuance to and in recognition of the maintenance in  her.   Similarly,  in
the decision reported in Gurdip Singh vs. Amar Singh (1991 (1)  L.W.15)  the
Supreme Court applied the provisions  of Section 14(1) of the Act where  the
wife acquired property by way of gift from her husband  explicitly  in  lieu
of maintenance. In Bai Vajia vs. Thakorbhai Chelabhai (A.I.R. 1979  SC  993)
also the Hindu widow obtained possession  of  the  property  in  default  of
payment  of  maintenance  to  her.   So,  the  Supreme  Court  applied   the
provisions of Section 14(1) of the Act to that case.”



10.   On the basis of the ratio  decided  by  this  Court  in  the  decision
quoted hereinabove and also other decisions of the  High  Court,  the  trial
court held that the life estate of Veeraghavamma under Exhibit A-2 will  not
become enlarge into  absolute  estate  under  Section  14(1)  of  the  Hindu
Succession  Act  and  did  not  extinguish  vested  remainders  interest  of
Narasimha Rao in the suit property.



11.   In appeal, the High Court, after discussing the ratio decided by  this
Court in the decisions noted by the trial court and also other decisions  of
this Court, reversed the finding of the trial court and held that  the  case
falls under Section 14(1) of the Act and Veeraghavamma became  the  absolute
owner of the suit property and she had every  right  to  bequeath  the  said
property in favour of the first defendant P. Subba Rao  under  Exhibits  B-1
and B-2.  The High Court held that:-

 “In view  of  the  aforesaid  authoritative  judgment  of  Hon'ble  Justice
Jagannadha Rao following several judgments of the Apex Court, I  am  of  the
opinion that the reasoning given by the trial Court, that  as  there  is  no
specific wording in the instrument Ex.A2 that life estate has been given  in
lieu of a pre-existing right or right of maintenance the same do not  become
enlarged into absolute estate, is not relevant and is quite contrary to  the
aforesaid judgment.

Merely  because  Veeraraghavamma  was  appointed  as  the  guardian  of   P.
Narasimha Rao  -  vendor  of  the  plaintiff  it  could  not  be  said  that
Veeraraghavamma had  no  pre-existing  right  or  right  of  maintenance  in
respect of the property in which a limited interest had been created in  her
favour.  As the vendor of plaintiff was also having  properties  other  than
the  property  in  question,  after  the  death  of  his   natural   father,
Veeraraghavamma was  appointed  as  his  guardian.   Immediately  after  the
vendor of the plaintiff attained majority the  guardianship  was  discharged
and  he  used  to  manage  his  own   movable   and   immovable   properties
individually.  It cannot be said that for the first  time  the  life  estate
has  been  created  under  Ex.A2  Will  in  favour  of  Veeraraghavamma,  as
undoubtedly, she was having a pre-existing right to  be  maintained  by  her
husband, therefore, it is the duty of her husband  to  maintain  her  during
her lifetime.  Though no specific words have been mentioned  in  Ex.A2  that
in lieu of maintenance the life  estate  has  been  created,  under  Section
14(1) in whatever form a limited interest is created in favour  of  a  Hindu
female, who is having  a  pre-existing  right  of  maintenance,  it  becomes
absolute right after 1956 Act came into force.

As Veeraraghavamma became absolute owner by virtue of Section 14(1)  of  the
Act she had right to bequeath the said  property  in  favour  of  the  first
defendant under Exs.B1 and B2.  Therefore, as the  vested  remainder  of  P.
Narasimha Rao got nullified, he had no right or authority to sell  the  said
property under Ex.A1 sale deed in favour of the plaintiff.  As  the  limited
interest of Veeraraghavamma blossomed into absolute right,  bequeathing  the
said property in favour of the first defendant under Exs.B1 and B2 is  legal
and valid. In view of the aforesaid facts and circumstances of the  case,  I
am of the opinion that the limited interest to  enjoy  the  property  during
the  lifetime  of  Veeraraghavamma  blossomed  into  an  absolute  right  in
accordance with Section 14(1), after the Hindu  Succession  Act,  1956  came
into force and the vested remainder created in favour of the vendor  of  the
plaintiff is nullified.”



12.   Mr. K.V.  Viswanathan,  learned  senior  advocate  appearing  for  the
appellant, confined his argument to the question of law as  to  whether  the
High Court erred in law in holding that Section 14(1) of  the  Act  will  be
attracted and the widow Veeraghavamma have  acquired  absolute  interest  in
the properties.  Learned counsel made the following submissions:-

“(i)  Section 14(1) cannot be interpreted to mean that each and  every  Will
granting a limited/life interest in a property to a widow is  deemed/assumed
to be in lieu of her maintenance.  If the testator in his Will  specifically
provides that he is granting  only life interest  in  the  property  to  his
widow, his right to limit his widow’s right in the  property  is  recognized
by  Section  14(2)  of  the  Hindu  Succession  Act,  1956.   Further,   the
testator’s right to dispose off his property by will or  other  testamentary
disposition is recognized by Section 30 of the Hindu Succession  Act,  1956.
Therefore, Section 14(1)  of  the  Hindu  Succession  Act,  1956  cannot  be
interpreted in a manner that renders Section 14(2) and  Section  30  of  the
same Act otiose.

(ii)  In Mst. Karmi vs. Amru & Ors. (1972)4 SCC 86),  a  3-Judge  Bench   of
this Court held to the effect that a widow who succeeded   to  the  property
of her deceased husband on the strength of his will cannot claim any  rights
in the property other than those conferred by the will..  “The  life  estate
given to her under the Will cannot  become  an  absolute  estate  under  the
provisions of the Hindu Succession Act”

(iii) In V. Tulsamma vs. Sesha Reddy (1977) 3 SCC 99, this  Court  clarified
the difference between sub-section  (1)  and  (2)  of  Section  14,  thereby
restricting the right of a testator  to grant a limited life interest  in  a
property to his wife.  Learned counsel referred para 62 of the  judgment  in
Tulsamma case.

(iv)  V. Tulsamma’s case involved a compromise decree arising out of  decree
for maintenance obtained  by the widow against her husband’s  brother  in  a
case  of  intestate  succession.   It  did  not  deal  with  situations   of
testamentary succession.  Therefore,  strictly  on  facts,  it  may  not  be
applicable to cases of testamentary succession.  However, in  terms  of  law
declared therein, a doubt may arise  whether  Section  14(1)  may  apply  to
every instance of a Will granting a limited/life interest in a  property  to
the widow on  the  ground  that  the  widow  has  a  pre-existing  right  of
maintenance.

(v)   This doubt was resolved by  the  Supreme  Court  in  Sadhu  Singh  vs.
Gurdwara Sahib Narike, (2006) 8 SCC 75, where it was held at  paras  13  and
14 that the right under section 30 of the Hindu Succession Act, 1956  cannot
be rendered otiose by a wide interpretation of Section 14(1) and that  these
two provisions have to be balanced.

(vi)  The above view has been  subsequently  affirmed  by  this  Court.   In
Sharad Subramanayan vs. Soumi Mazumdar & Ors. (2006) 8 SCC 91 (at para  20),
this Court upheld the contention of the learned counsel for the  respondents
therein that there was no  proposition  of  law  that  all  dispositions  of
property made to a female Hindu  were  necessarily  in  recognition  of  her
right to maintenance whether under the  Shastric  Hindu  law  or  under  the
statutory  law.

(vii) Learned counsel referred  para 14 in the  case  of  Shivdev  Kaur  vs.
R.S. Grewal.

(viii)      The position of law  as  recorded  in  Sadhu  Singh’s  case  and
followed subsequently, therefore, appears to be  that  the  question  as  to
whether Section 14(1) applies to a Will granting life interest  to  a  widow
hinges on  the  finding  by  the  Court  that  the  grant  was  in  lieu  of
maintenance.  This leads to the second arguments.”



13.   Mr. Viswanathan, learned senior counsel. submitted the fact  that  the
life interest in property granted  to  the  widow  by  way  of  a  Will  was
actually in lieu of  her  maintenance  needs  to  be  specifically  pleaded,
proved and decided by  the  Court  based  on  examination  of  evidence  and
material on record.



14.   Further, referring paragraph nos. 17, 22 and 24 of the decision in  G.
Rama vs. TG Seshagiri Rao, (2008) 12  SCC  392,  learned  counsel  submitted
that issues are required to  be  framed  and  evidence  has  to  be  led  to
specifically show that the Will granted interest  in  property  in  lieu  of
maintenance.



15.   It is well settled that under the Hindu Law, the  husband  has  got  a
personal obligation  to  maintain  his  wife  and  if  he  is  possessed  of
properties then his wife is entitled to a right  to  be  maintained  out  of
such properties.  It is equally well settled that the claim of  Hindu  widow
to be maintained is not a mere formality which  is  to  be  exercised  as  a
matter of concession, grace or gratis  but  is  a  valuable,  spiritual  and
moral right.  From the judicial pronouncement, the right of a  widow  to  be
maintained, although does not  create  a  charge  on  the  property  of  her
husband but certainly the widow can enforce her right by  moving  the  Court
and for passing a decree for maintenance by creating a charge.



  16.   The  Hindu  Married  Women’s  Right  to  Separate,  Maintenance  and
Residence Act, 1946 was enacted giving statutory recognition of  such  right
and, therefore, there can be no doubt that the right  to  maintenance  is  a
pre-existing right.



17.   In V. Tulsamma and others vs. Sesha Reddy, AIR  1977  SC  1944,  three
Judges Bench of this Court has elaborately considered the right of  a  Hindu
woman to maintenance which is a pre-existing right.  My Lord  Justice  Fazal
Ali writing the judgment firstly observed:-

“Thus on a careful consideration and detailed analysis  of  the  authorities
mentioned above and the Shastric Hindu law on  the  subject,  the  following
propositions emerge with respect to the incidents and characteristics  of  a
Hindu woman’s right to maintenance:
      (1)   that  a  Hindu  woman’s  right  to  maintenance  is  a  personal
obligation so far as the husband  is  concerned,  and  it  is  his  duty  to
maintain her even if he has no property. If the husband  has  property  then
the right of the widow to maintenance becomes an  equitable  charge  on  his
property and any person who succeeds to the property  carries  with  it  the
legal obligation to maintain the widow;
      (2)   though the widow’s right to  maintenance  is  not  a  right,  to
property but it is undoubtedly a pre-existing right in property i.e.  it  is
a jus ad rem not jus in rem and it can be enforced by the widow who can  get
a charge created for her maintenance on the property either by an  agreement
or by obtaining a decree from the civil court;
      (3)   that the right of maintenance is a matter of moment  and  is  of
such importance that even if the joint property is sold  and  the  purchaser
has notice of the widow’s right to maintenance,  the  purchaser  is  legally
bound to provide for her maintenance;
      (4)   that the right to  maintenance  is  undoubtedly  a  pre-existing
right which existed in the Hindu law long before the passing of the  Act  of
1937 or the Act of 1946, and is, therefore, a pre-existing right;
      (5)   that  the  right  to  maintenance  flows  from  the  social  and
temporal relationship between the husband and the wife by  virtue  of  which
the wife becomes a sort of co-owner in the property of her  husband,  though
her co-ownership is of a subordinate nature; and
      (6)   that where a Hindu widow is in possession  of  the  property  of
her husband, she is entitled  to  retain  the  possession  in  lieu  of  her
maintenance unless the person who succeeds to the property or purchases  the
same is in a position to make due arrangements for her maintenance.”

18.   Interpreting the provisions of Section 14 of the Hindu Succession
Act, their Lordships observed: -
“In the light of the above decisions of this Court the following  principles
appear to be clear:
      “(1)  that the provisions of Section  14  of  the  1956  Act  must  be
liberally construed in order to advance the object of the Act  which  is  to
enlarge the limited interest  possessed  by  a  Hindu  widow  which  was  in
consonance with the changing temper of the times;
      (2)   it is manifestly clear that sub-section (2) of Section  14  does
not refer to any transfer  which  merely  recognises  a  pre-existing  right
without creating or conferring a new title on the widow.  This  was  clearly
held by this Court in Badri Pershad case.
      (3)   that the Act of 1956 has  made  revolutionary  and  far-reaching
changes in the Hindu society and every attempt should be made to  carry  out
the spirit of the Act which has undoubtedly supplied a long  felt  need  and
tried to do away with the invidious distinction between  a  Hindu  male  and
female in matters of intestate succession;
      (4)   that sub-section (2) of Section 14 is merely a proviso  to  sub-
section (1) of Section 14 and has to be interpreted as a proviso and not  in
a manner so as to destroy the effect of the main provision.”


19.   Lastly, His Lordship after elaborate  consideration  of  the  law  and
different authorities came to the following conclusions:-
“We would now like to summarise the legal conclusions which we have  reached
after an exhaustive considerations of the  authorities  mentioned  above  on
the question of law involved in this appeal  as  to  the  interpretation  of
Sections 14(1) and (2) of the Act of 1956. These conclusions may  be  stated
thus:
“(1) The Hindu female’s right to maintenance is not an  empty  formality  or
an illusory claim being conceded as a matter of grace  and  generosity,  but
is a  tangible  right  against  property  which  flows  from  the  spiritual
relationship between  the  husband  and  the  wife  and  is  recognised  and
enjoined by pure Shastric Hindu law and has been strongly stressed  even  by
the earlier Hindu jurists starting from Yajnavalkya to Manu.  Such  a  right
may not be a right to property but it is a right against  property  and  the
husband has a personal obligation to maintain his wife  and  if  he  or  the
family has property, the  female  has  the  legal  right  to  be  maintained
therefrom. If a charge is created for the maintenance of a female, the  said
right becomes a legally enforceable one. At any rate, even without a  charge
the claim for maintenance is doubtless a  pre-existing  right  so  that  any
transfer declaring or recognising such a  right  does  not  confer  any  new
title but merely endorses or confirms the pre-existing rights.
(2) Section 14(1) and the Explanation  thereto  have  been  couched  in  the
widest possible terms and must be  liberally  construed  in  favour  of  the
females so as to advance the object of the 1956 Act and promote  the  socio-
economic ends sought to be achieved by this long needed legislation.
(3) Sub-section (2) of Section 14 is in the nature of a proviso  and  has  a
field of its own without interfering with the  operation  of  Section  14(1)
materially. The proviso should not  be  construed  in  a  manner  so  as  to
destroy the effect of the  main  provision  or  the  protection  granted  by
Section 14(1) or in a way so as to  become  totally  inconsistent  with  the
main provision.
(4) Sub-section (2) of Section 14 applies to instruments,  decrees,  awards,
gifts, etc. which create  independent  and  new  titles  in  favour  of  the
females for the first time and  has  no  application  where  the  instrument
concerned merely seeks  to  confirm,  endorse,  declare  or  recognise  pre-
existing rights. In such cases a restricted estate in favour of a female  is
legally permissible and Section 14(1)  will  not  operate  in  this  sphere.
Where, however, an instrument merely declares or recognises  a  pre-existing
right, such as a claim to maintenance or partition or  share  to  which  the
female is entitled, the sub-section has absolutely no  application  and  the
female’s limited interest would automatically be enlarged into  an  absolute
one by force of Section 14(1) and the restrictions  placed,  if  any,  under
the document would have to be ignored. Thus where a property is allotted  or
transferred to a female in lieu of maintenance or a share at partition,  the
instrument is taken out of  the  ambit  of  sub-section  (2)  and  would  be
governed by Section 14(1) despite any restrictions placed on the  powers  of
the transferee.
(5) The use of express terms like ‘property acquired by a female Hindu at  a
partition’, ‘or in lieu of maintenance’, ‘or arrears of  maintenance’,  etc.
in  the  Explanation  to  Section  14(1)  clearly  makes   sub-section   (2)
inapplicable to these categories which have  been  expressly  excepted  from
the operation of sub-section (2).
(6) The words ‘possessed by’ used by the Legislature in  Section  14(1)  are
of the widest possible amplitude and include the state of owning a  property
even though the owner is not in actual or physical possession of  the  same.
Thus, where a widow gets a share in the property under a preliminary  decree
before or at the time when the 1956 Act had been passed  but  had  not  been
given actual possession under a final decree, the property would  be  deemed
to be possessed by her and by force of Section 14(1) she would get  absolute
interest in the property. It is equally well settled that the possession  of
the widow, however, must be under some vestige of a claim, right  or  title,
because the  section  does  not  contemplate  the  possession  of  any  rank
trespasser without any right or title.
(7) That the words ‘restricted estate’ used in Section 14(2) are wider  than
limited interest as indicated in Section 14(1) and  they  include  not  only
limited interest, but also any other kind of limitation that may  be  placed
on the transferee.”

20.   Mr. Vishwanathan put heavy reliance on the decision of this  Court  in
the case of Mst. Karmi vs. Amru (1972 Vol. 4 SCC  86).   In  our  considered
opinion, the ratio decided in that case will not apply in the facts  of  the
present case.  In Mst. Karmi case (Supra), one Jaimal, who was the owner  of
the property, had executed a Will directing that on his  death,  his  entire
estate would devolve upon his widow Nihali during her life  and  thereafter,
the same would devolve upon his collaterals on the  death  of  Jaimal.   The
properties were mutated in the name of Nihali who eventually died  in  1960.
On her death, the collaterals claimed the properties on the basis  of  Will,
but the appellant claimed the properties as their sole legatee  from  Nihali
under her Will of 1958.  On these facts, it  was  held  that  Nihali  having
succeeded to the properties of Jaimal on the strength of Will  cannot  claim
any right in those properties over and above that was  given  to  her  under
the Will.  The Court observed that the life estate given to  her  under  the
Will cannot  become  an  absolute  estate  under  the  provisions  of  Hindu
Succession Act, 1956.

21.   The facts in Karmi’s case (supra) and that of  the  present  case  are
fully distinguishable.  In the instant case, the Will was executed  in  1920
in which Subba Rao has mentioned that his first wife died, the  second  wife
got two sons and one daughter.  Thereafter,  second  wife  also  died.   He,
then, married to Veeraraghavamma  as  a  third  wife,  who  is  alive.   The
executant of the Will have also mentioned the description of the  properties
owned by him.  He, very specifically mentioned in the Will  that  his  third
wife Veeraraghavamma shall enjoy for life one tiled house  situated  in  the
compound wall.  For that enjoyment, it was also mentioned in the  Will  that
the widow Veeraraghavamma shall also be entitled to  fetch  water  from  the
well situated in the backyard of a different house.   In  other  words,  the
executant of the Will made arrangements for his third wife to  maintain  her
enjoyment in the suit schedule property till her  life.   The  intention  of
the executant is therefore clear that he gave the suit schedule property  to
his third wife Veeraraghavamma in order to hold and enjoy the suit  property
for her maintenance during her lifetime.  It is not a case like  Karmi  case
that by executing a Will, the executant  directed  that  his  entire  estate
will devolve upon his widow Veeraraghavamma.

22.   A three Judges Bench of this Court in the case of R.B.  S.S.  Munnalal
and  Others   vs.  S.S.  Rajkumar  &  Others,  AIR  1962  SC   1493,   while
interpreting the provisions of Section 14(1) of the Act observed:-
“16. By Section 14(1) the legislature sought to convert the  interest  of  a
Hindu female which under the Sastric Hindu law would have been  regarded  as
a limited interest into an absolute interest and by the Explanation  thereto
gave to the expression “property” the  widest  connotation.  The  expression
includes property acquired by a Hindu female 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.  By   Section   14(1)
manifestly it is intended to convert the interest which a Hindu  female  has
in property however  restricted  the  nature  of  that  interest  under  the
Sastric Hindu law may be into absolute estate. Pratapmull  case  undoubtedly
laid down that till actual division of the share declared in her  favour  by
a preliminary decree for partition of the joint family estate a  Hindu  wife
or mother, was not  recognised  as  owner,  but  that  rule  cannot  in  our
judgment apply after the enactment of the Hindu Succession Act. The  Act  is
a codifying enactment, and has made far reaching changes  in  the  structure
of the Hindu law of inheritance, and succession. The Act confers upon  Hindu
females  full  rights  of  inheritance,  and  sweeps  away  the  traditional
limitations on her powers of dispositions  which  were  regarded  under  the
Hindu law as inherent in her estate. She is under  the  Act  regarded  as  a
fresh stock of descent in respect of property possessed by her at  the  time
of her death. It is true that under the Sastric Hindu law, the  share  given
to a Hindu widow on partition between her sons or her grandsons was in  lieu
other right to maintenance. She was not entitled  to  claim  partition.  But
the Legislature by enacting the Hindu Womens' Right to  Property  Act,  1937
made a significant departure in that branch of  the  law;  the  Act  gave  a
Hindu widow the same interest in the property which her husband had  at  the
time of his death, and if the estate was partitioned  she  became  owner  in
severalty  of  her  share,  subject  of  course  to  the   restrictions   on
disposition and the peculiar rule of  extinction  of  the  estate  on  death
actual or civil. It cannot be assumed  having  regard  to  this  development
that in enacting Section 14 of the Hindu  Succession  Act,  the  legislature
merely intended to declare the rule  enunciated  by  the  Privy  Council  in
PratapmuIl case. Section 4 of the Act gives  an  overriding  effect  to  the
provisions of the Act.”


23.   Reference may also be made to a three Judges Bench  decision  of  this
Court in the case of Nirmal Chand vs. Vidya Wanti,  (1969)  3  SCC  628.  In
that case, by a registered document of  partition,  the  related  right  was
given to the widow - the user of the land with the condition that  she  will
have no right to alienate in any manner. This Court holding  that  the  case
falls under Section 14(1) of the Act held as under:-

“6. If Subhrai Bai was entitled to a share in her husband’s properties  then
the suit properties must be held to have been allotted to her in  accordance
with law. As the law then  stood  she  had  only  a  life  interest  in  the
properties taken by her. Therefore the recital in the deed in question  that
she would have only a life interest in the properties allotted to her  share
is merely recording the true legal position. Hence it  is  not  possible  to
conclude that the properties in question were given to her  subject  to  the
condition of her enjoying it for a life time. Therefore the trial  court  as
well as the first appellate court were right in holding that  the  facts  of
the case do not fall within Section  14(2)  of  the  Hindu  Succession  Act,
1956. Consequently Subhrai Bai must be held to have had  an  absolute  right
in the suit properties, in view of Section 14(1)  of  the  Hindu  Succession
Act.”


24.   In the case of Thota Sesharathamma vs. Thota Manikyamma, (1991) 4  SCC
312, life estate was granted to a Hindu women by a Will as a  limited  owner
and the grant was in  recognition  of  pre-existing  right.   Following  the
ratio decided in Tulasamma’s case, their Lordships held  that  the  decision
in Mst. Karmi  cannot be considered as an authority on the ambit of  Section
14(1) and (2) of the Act.  The Court held:-
“9. It was clearly held in the above case that Section 14(2) of the  Act  is
in the nature of a proviso or an exception to Section 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 pre-existing  right  in  the
female Hindu to the property. The Bench consisted  of  Hon.  J.C.  Shah,  V.
Ramaswamy and A.N. Grover, JJ.
10. The case of Mst Karmi v. Amru on which a reliance has  now  been  placed
by learned counsel for the appellant and petitioners was also decided  by  a
bench of three Judges Hon. J.C. Shah, K.S. Hegde and  A.N.  Grover,  JJ.  It
may be noted that two Hon’ble Judges, namely,  J.C.  Shah  and  A.N.  Grover
were common to both the cases. In Mst Karmi v.  Amru,  one  Jaimal  died  in
1938 leaving his wife Nihali. His son Ditta pre-deceased him.  Appellant  in
the  above  case  was  the  daughter  of  Ditta  and  the  respondents  were
collaterals of Jaimal. Jaimal first executed a will dated December 18,  1935
and by a subsequent will dated November 13, 1937 revoked the first will.  By
the second will a life  estate  was  given  to  Nihali  and  thereafter  the
property was made to devolve on Bhagtu and Amru collaterals.  On  the  death
of Jaimal in 1938, properties were mutated in the  name  of  Nihali.  Nihali
died in 1960/61. The appellant Mst Karmi claimed right on  the  basis  of  a
will dated April 25, 1958 executed by Nihali in  her  favour.  It  was  held
that the life estate given to a widow under the will of her  husband  cannot
become an absolute estate under the provisions of the Hindu Succession  Act.
Thereafter, the appellant cannot claim title to the properties on the  basis
of the will executed by the widow Nihali  in  her  favour.  It  is  a  short
judgment without adverting to any provisions of Section 14(1)  or  14(2)  of
the Act. The judgment neither makes any mention of any  argument  raised  in
this regard nor there is any  mention  of  the  earlier  decision  in  Badri
Pershad v. Smt Kanso Devi. The decision in Mst Karmi  cannot  be  considered
as an authority on the ambit and scope of  Section  14(1)  and  (2)  of  the
Act.”


25.   Reference may also be made to the decision of three  Judges  Bench  of
this Court in the case of Shakuntala Devi vs. Kamla  and  Others,  (2005)  5
SCC 390, where a Hindu wife was bequeathed life interest for maintenance  by
Will with the condition that she would not have power to alienate  the  same
in any manner.  As per the Will, after death of the wife, the  property  was
to revert back to his daughter as an absolute owner.   On  this  fact  their
Lordships following the ratio decided in Tulasamma’s case (supra) held  that
by virtue of Section 14(1) a limited right given to the wife under the  Will
got enlarged to an absolute right in the suit property.

26.    Mr.  K.Ramamurty,  learned   senior   counsel   appearing   for   the
respondent, also relied upon the decision in the case of Santosh and  Others
vs. Saraswathibai and Another, (2008) 1 SCC 465, Subhan Rao and  Others  vs.
Parvathi Bai and Others, (2010) 10 SCC 235 and Sri Ramakrishna Mutt  vs.  M.
Maheswaran and Others, (2011) 1 SCC 68.

27.    In Santosh’s case (supra), this Court followed the decision given  in
Nazar Singh’s case, (1996) 1 SCC 35, and held that  the  pre-existing  right
of wife was  crystallized  and  her  limited  interest  became  an  absolute
interest in the property possessed by her in lieu of maintenance.

28.    A similar question arose  for  consideration  before  this  Court  in
Subhan Rao case (supra), where a portion of suit property was given  to  the
plaintiff-wife for her maintenance subject to restriction that she will  not
alienate the land which was given to her maintenance.   The  question  arose
as to whether by virtue of Section 14(1) of the Act she became the owner  of
the suit property.  Considering all the earlier  decisions  of  this  Court,
their Lordships held that by virtue of Section 14(1) of the  Act,  the  pre-
existing right  in  lieu  of  her  right  to  maintenance  transformed  into
absolute estate.

29.   In the case of Nazar Singh and Others  vs.  Jagjit  Kaur  and  Others,
(1996) 1 SCC 35, this Court following the decision in Tulasamma’s case  held
as under:-
“9. Section 14 and the respective scope and ambit of  sub-sections  (1)  and
(2) has been the subject-matter of a number of decisions of this Court,  the
most important of which is the decision in V. Tulasamma v. Sesha Reddy.  The
principles enunciated in this decision have been reiterated in a  number  of
decisions later but  have  never  been  departed  from.  According  to  this
decision, sub-section (2) is confined to cases where  property  is  acquired
by a female Hindu for the first time as a  grant  without  any  pre-existing
right under a gift, will, instrument, decree, order or award, the  terms  of
which prescribe a restricted estate in the property. It has also  been  held
that where the property is acquired by a Hindu female in lieu  of  right  of
maintenance inter alia, it is in virtue of a pre-existing right and such  an
acquisition would not be within the scope and ambit of sub-section (2)  even
if the instrument, decree, order or award  allotting  the  property  to  her
prescribes a restricted estate in the property. Applying this principle,  it
must be held that the suit  lands,  which  were  given  to  Harmel  Kaur  by
Gurdial Singh in lieu of her maintenance, were held by Harmel Kaur  as  full
owner thereof and  not  as  a  limited  owner  notwithstanding  the  several
restrictive  covenants  accompany-ing  the  grant.  [Also  see  the   recent
decision of this Court in  Mangat  Mal  v.  Punni  Devi  where  a  right  to
residence in a house  property  was  held  to  attract  sub-section  (1)  of
Section 14 notwithstanding the fact that the grant expressly conferred  only
a limited  estate  upon  her.]  According  to  sub-section  (1),  where  any
property is given to a female Hindu in lieu of her  maintenance  before  the
commencement  of  the  Hindu  Succession  Act,  such  property  becomes  the
absolute property of such female  Hindu  on  the  commencement  of  the  Act
provided the said property was  ‘possessed’  by  her.  Where,  however,  the
property is given to a  female  Hindu  towards  her  maintenance  after  the
commencement of the Act, she becomes the absolute owner thereof  the  moment
she is placed in possession of the said property (unless, of course, she  is
already in possession)  notwithstanding  the  limitations  and  restrictions
contained in the instrument, grant  or  award  whereunder  the  property  is
given to her. This proposition follows from the words  in  sub-section  (1),
which insofar as is relevant read:  “Any  property  possessed  by  a  female
Hindu … after the commencement of this Act shall be  held  by  her  as  full
owner and not as a limited owner.” In other words,  though  the  instrument,
grant, award or deed creates a limited estate or  a  restricted  estate,  as
the case may be, it stands transformed  into  an  absolute  estate  provided
such property is given to a female Hindu  in  lieu  of  maintenance  and  is
placed  in  her  possession.  So  far  as  the  expression  ‘possessed’   is
concerned, it too has been the subject-matter of interpretation  by  several
decisions of this Court to which it  is  not  necessary  to  refer  for  the
purpose of this case.”


30.   In Sadhu Singh’s case, (2006) 8 SCC 75, the facts  of  the  case  were
quite different to that of the present case.  In Sadhu  Singh’s  case,  this
Court proceeded on the basis that the widow had  no  pre-existing  right  in
the property, and therefore, the life  estate  given  to  her  in  the  Will
cannot get enlarged into absolute estate under Section 14(1) of the Act.

31.   Mr. Vishwanathan, learned senior  counsel  for  the  appellant’s  last
contention was that in the absence of any pleading and proof from  the  side
of  the  appellant  to  substantiate  the  plea  that  Veeraraghavamma   was
occupying the property in lieu  of  maintenance,  Section  14  will  not  be
automatically attracted. We do not find  any  substance  in  the  submission
made by the learned counsel. Indisputably, Exhibit A-2 is a  document  which
very categorically provided that the  property  in  question  was  given  to
Veeraraghavamma to enjoy the same till her life.   Neither  the  genuineness
of  the  said  Exhibit  A-2  was  disputed  nor   it   was   disputed   that
Veeraraghavamma was enjoying the property by way  of  maintenance.   In  our
considered opinion, unless the factum of bequeathing the property in  favour
of the wife and her continuous possession  are  disputed,  the  question  of
pleading and proof does not arise.  In other  words,  no  one  disputed  the
arrangement made in the Will and  Veeraraghavamma  continued  to  enjoy  the
said property in lieu of maintenance. Hence, the ratio decided in G.  Rama’s
case (supra) does not apply.

32. Further, indisputably, Mr. P. Venkata Subba Rao, the original  owner  of
the property, realized the fact that his wife Veeraraghavamma was  issueless
and she has a pre-existing right to be maintained out of his  property.   He
further realized that physically he was weak and may not  survive  for  long
period.  He  therefore,  decided  to  give  his  properties  to  his  family
members.  For the maintenance of his third  wife  Veeraraghavamma,  he  gave
the tiled house with site and compound wall with the  stipulation  that  she
shall enjoy the property for life in lieu of maintenance. She will  also  be
entitled  to  fetch  water  from  the  well  and   use   other   facilities.
Admittedly,  no  one  disputed  the  arrangements  made  in  the  Will   and
Veeraraghavamma continued to enjoy  the  said  property.   In  view  of  the
admitted position, we have no doubt to hold that by virtue of Section  14(1)
of the Act, her limited right became absolute right to the suit property.


33.   In the impugned judgment, the High  Court  has  elaborately  discussed
the facts of the case and  the  law  applicable  thereto  and  came  to  the
conclusion that the trial court committed serious error of  law  in  holding
that by virtue of Section 14(2) of  the  Act,  her  limited  right  has  not
become absolute.

34.   Though no specific word has been mentioned  in  Exhibit  A-2  that  in
lieu  of  maintenance  life  interest  has  been  created   in   favour   of
Veeraraghavamma, in our opinion in  whatever  form  a  limited  interest  is
created in her favour who was having a pre-existing  right  of  maintenance,
the same has become an absolute right by the operation of Section  14(1)  of
the Hindu Succession Act.


35.   After giving our anxious consideration to the matter and the  judicial
pronouncements of this Court in a series of  decisions,  we  hold  that  the
impugned judgment of the High Court is perfectly in accordance with law  and
needs no interference by this Court.

36.   For the reasons aforesaid, this appeal has  no  merit  and  dismissed.
However, there shall be no order as to costs.


                                                              …………………………….J.
                                                                (M.Y. Eqbal)



                                                              …………………………….J.
                                                               (C. Nagappan)
New Delhi
November 06, 2015