PETITIONER:
KALAWATIBAI
Vs.
RESPONDENT:
SOIRYABAI AND OTHERS
DATE OF JUDGMENT01/05/1991
BENCH:
SAHAI, R.M. (J)
BENCH:
SAHAI, R.M. (J)
THOMMEN, T.K. (J)
CITATION:
1991 AIR 1581 1991 SCR (2) 599
1991 SCC (3) 410 JT 1991 (2) 385
1991 SCALE (1)852
ACT:
Hindu Succession Act, 1956 (No. 30 of 1956): ss. 2, 14-
Hindu widow's estate-Alienation by gift to female
reversioner prior to 1956-Whether alienee could become
absolute owner-`Limited owner'-Meaning of: s. 4-Hindu Law-
Applicability of.
Hindu Law: Gift of widow's estate without legal
necessity-Reversioner can claim possession within 12 years
of widow's death-Whether alienee could claim adverse
possession against reversioners during life time of widow.
Transfer of property Act, 1898: S. 41-Estoppel-Whether
applicable against reversioners in case of gift of widow's
estate in favour of one of reversioners.
Statutory Interpretation: Section-Ascertainment of
meaning-Should be read in its entirety-Marginal note should
not be resorted to when language is plain and simple.
HEADNOTE:
A Hindu widow executed a gift deed in 1954 of the
entire estate inherited by her from her husband in favour of
the appellant, one of her daughters. This led to the filling
of two cross-suits-one by the appellant for permanent
injunction basing her claim on the gift deed and the other
by the respondent, another daughter of the widow's for
declaration and partition assailing the validity of the gift
deed and claiming reversioners' right after death of the
mother in 1968. The trial court decreed appellant's suit on
adverse possession and estoppel, but not on s. 14 of the
Hindu Succession Act, 1956, as in its view the widow who
executed the gift deed in 1954, was incompetent to alienate
widow's estate by gift permanently.
The appellate court affirmed the finding of the trial
court on s. 14 of the Act, but opined that the appellant
could not acquire any right by `estoppel under s. 41 of
Transfer of Property Act, against the reversioners by
reasons of the widow's conduct'. It allowed the appeal of
the respondent and dismissed the suit of the appellant
holding that adverse
600
possession against the widow was not adverse against
reversioners, and the next reversioner was entitled to
recover the possession of the property or his share in it
within 12 years from the date of the death of the widow.
In second appeal the High Court, treating the finding
of the trial court on adverse possession as a finding of
fact, held that possession of the appellant must be deemed
to be on behalf of the other co-sharers in the absence of
any evidence before ouster of the other sister. Aggrieved,
the appellant filed the appeals by special leave to this
Court.
On the questions whether: (1) a Hindu widow could
alienate by gift the entire estate inherited by her from her
husband in favour of one of the female reversioners prior to
enforcement of Act 30 of 1956, and if so, what was the
nature of right that the donee got under law? and (2) the
donee became an owner of the widow's estate, a limited
owner, an owner with some right or title so as to acquire
rights of absolute ownership under s. 14 of the Act or a
trespasser and acquired rights for adverse possession by
perfecting her rights against the doner only or it was
essential to prescribe rights against reversioners as well?
Dismissing the appeals, this Court
HELD: 1.1 Prior to the coming into force of Act 30 of
1956 a Hindu widow succeeding or inheriting any property
from her husband or as widow of predeceased son, held
limited interest known as Hindu women's estate, under the
Hindu Women's Right to Property Act, 1937. However, she
had the right to enjoy or even destroy or dispose of the
property or alienate it but such destruction or alienation
should have been impressed with legal necessity or for
religious or charitable purposes or for spiritual welfare of
the husband. Necessary consequences that flowed from an
alienation for legal necessity was that the property vested
in the transferee or alienee, and the reversioners were
precluded from assailing its validity. Since such an estate
could not be alienated under Hindu Law except in certain
circumstances and for specific purpose, the holder or the
estate was known as limited owner. {613C-D;614F-G]
1.2 The expression `limited owner' could not be
understood except as it was interpreted and understood in
Hindu Law. The term commonly means, a person with
restricted rights as opposed to full owner with absolute
rights. In relation to property, absolute or complete or
full ownership comprises various constituents such as the
right to
601
possess, actual or constructive, power to enjoy, that is, to
determine manner of use extending even to destroying, right
to alienate, transfer or dispose of etc. Any restriction or
limitation on exercise of these rights may result in limited
or qualified ownership. For instance restriction on
enjoyment of property or its alienation. Such restriction
or limitation may arise by operation of law or by deed or
instrument. The limited ownership of female Hindu in Hindu
law arose as a matter of law. A Hindu widow, according to
different schools, Benaras, Bengal or Mithila and even in
Bombay inherited or succeeded to property whether of male or
female as a limited owner and held a limited estate only.
[613D; 614B-D]
Janaki Ammal v. Karayanaswami, [1916] p. 43 I.A. p. 207
and Jaisri v. Raj Diwan Dubey,, [1961] 2SCR 559, referred
to.
1.3 Prior to 1956, any alienation made by a Hindu widow
or widow's estate prohibited by law or being beyond
permissible limits could utmost create in the alienee
temporary and transitory ownership precarious in nature and
vulnerable in character open to challenge if any attempt was
made to cloud reversioners' interest. The alienee's
possession may be good against the world and her right in
property may not be impeachable by the widow, but her
interest qua the reversioner was to continue in possession
at the maximum till the lifetime of her donor or transferor.
It was life interest, loosely, as the duration of interest
created under invalid transfer came to an end not on death
of donee or transferee but donor or transferor. Such
transfer stripped the widow of her rights and she could not
acquire any rights under s. 14, and being voidable, and not
void, could be avoided by reversioners including government
taking by escheat; but the widow was bounded by it. [615A,
E-F]
Kamala Devi v. Bachu Lal Gupta, [1957] SCR 453;
Collector of Masuli Patam v. Cavoly Venoata, [1861] 8 M.I.A.
529; Natwalal Punjabhai & Anr. v. Dadubhai Manubhai & Ors.,
AIR 1954 SC 61 and Radhey Krishan Singh & Ors. v. Shiv
Shankar Singh & Ors., [1973] 2 SCC 472, referred to.
2.1 An alienee from a Hindu widow prior to 1956 did not
acquire limited estate or widow's estate, nor was she a
limited owner who could get any benefit under s. 14 of the
Act. It was not even a life estate except loosely, as the
right to continue in possession was not related with her
span of life but of the transferor that is the Hindu widow.
[616G-H;617A]
Smt. Chinti v. Smt. Daultu, AIR 1968 Delhi 264,
disapproved.
602
Sulochana Kuer, v. Doomati Kuer, AIR 1970 Patna 352;
Anath Bandhu v. Chanchala Bala, AIR 1976 Calcutta 303;
Parmeshwari v. Santokhi, AIR 1977 Punjab 141; Gaddam
Vankayama v. Gaddam Veerayya, AIR 1957 AP 230 and Marudakkal
v. Arumugha., AIR 1958 Madras, referred to.
Badri Pershad v. Smt. Kanso Devi, [1970] 2 SCR 95 held
inapplicable.
2.2 In the instant case the alienation by gift of
entire widow's estate being contrary to law did not bind the
reversioner who could file a suit after the death of the
widow. The appellant could not claim to have acquired title
to the property under the gift deed. Nor had she become a
limited owner under Hindu Law which could mature into full
ownership when the Act came into force. In fact such
possession was not backed by any title as against
reversioner which could preclude her from bringing the suit
for declaration. [616B]
3. As regards the adverse possession, the High Court
was not justified in concluding that it was a question of
fact. Possession under a gift deed which was found to be
invalid as it was not permitted under Hindu Law was on
general principle contrary to law and as such could be
adverse. The appellant could not acquire any right by
adverse posession against reversioner during life time of
her mother. Her claim was rightly negatived by the first
appellate court. Even assuming that the alienee had
perfected adverse possession against the donor, it was not
sufficient to clothe her with right or title in the property
so as to deprive the reversioners of their right to claim
the property after the death of the widow, inasmuch as in
the case of an alienation by Hindu widow without legal
necessity, the reversioners were not bound to institute a
declaratory suit during the lifetime of the widow. They
could wait till her death and then sue the alienee for
possession of the alienated property treating the alienation
as a nullity. [617F-H;618A-B]
Radha Rani v. Hanuman Prasad, AIR 1966 SC 216, relied
on.
4.1 Being retrospective in operation s. 14(1) deals
with rights of female Hindus both before and after the Act
came into force, and the meaning of female Hindu prior to
1956 has to be understood in the light of Hindu Law as it
prevailed then. The section enlarged the estate of those
female Hindus who would otherwise have limited owners. This
result flows by reading the first part with the last which
uses the expression `held by her as full owner thereof and
not as a limited
603
owner'. A limited owner became a full owner provided she
was a female Hindu who was possessed of any property
acquired before the commencement of the Act. Therefore,
mere being female Hindus was not sufficient. She should
have been of that class of female Hindus who could on
existence of other circumstances were capable of becoming
full owners. Female Hindu could become absolute owner of
property possessed by her on the date the Act came into
force only if she was a limited owner whereas she would
become absolute owner 1956 of the property of which she
would otherwise have been a limited owner. [609B-E;611F]
Bai Vijia v. Thakorbhai Chelabhai, [1979] 3 SCC 300,
relied on.
4.2 On a reading of s. 14(1) the conclusion is
irrisistible that a limited owner became a full owner
provided she was in possession of the property on the date
of enactment of the Act. Effect of Explanation appended to
the section was that a female Hindu became absolute owner
not only in respect of inherited property but even of
property received by way of gift or on partition or in lieu
of maintenance etc. provided she was a limited owner. And
not that it enlarged the estate of even those who were not
limited owner. Any other construction would militate
against the otherwise clear meaning of sub-section (1).
[608G-H;609F-H]
5. Hindu Succession Act did not obliterate Hindu Law.
What has ceased to be operative after coming into force of
the Act under s. 4 is text or rule etc. for which provision
is the Act. And under s. 4(2) any law in force immediately
before the commencement of the Act ceased to have effect if
it was inconsistent with any provision of the Act.
Therefore, except to the extent provision has been made in
s. 14, that is, enlargement of the estate of limited owner,
the Hindu Law in other regards remains operative. There is
no provision in the Act which deprives reversioners of
their rights except to the extent mentioned in s. 14.[617C-
D]
6. Marginal note is usually not resorted to for
construing meaning of a section, particularly, when the
language is plain and simple. A section has to be read in
its entirety as one composite unit without bifurcating or
ignoring any part of it. [608D-E]
V. Tulsamma v. Shesha Reddy, [1977] 3 SCC 99, referred
to.
Eramma v. Verrupana, [1966] 2 SCR 626; Gummalapura
Taggina
604
Matada Kotturuswami v. Setra Veeravva & Ors., [1959] Supp 1
SCR 968, AIR 1959 SC 577; Mangal Singh v. Smt. Rattno, AIR
1967 SC 1786 Munna Lal v. Raj Kumar., AIR 1962 SC 1495
Sukhram v. Gauri Shankar, [1968] 1 SCR 476; Kuldeep Singh v.
Surain Singh, [1988] Andhra Law Times, Gulwant Kaur v.
Mohinder Singh, [1987] 3 SCC 674; Maharaja Pillai Lakshmi
Ammal v. Maharaja Pillai T. Pillai, [1988] 1 SCC 99 and
Jagannathan Pillai v. Kunjithapadam Pillai., [1987] 2 SCC
572, referred to.
Mulla's Hindu Law, 16th Edn. para 174, and Mayne's
Hindu Law, 12th Edn. para 671, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2486-87
(N) of 1978.
From the Judgment and Order dated 17.3.1978 of the
Bombay High Court in Second Appeal Nos. 293 and 361 of 1972.
P.H. Parekh for the Appellant.
S. Padumanabhan, Amicus Curiae, R.A. Perumal and G.
Narasimhulu for the Respondents.
The Judgment of the Court was delivered by
R.M. SAHAI, J. Litigation, between two sisters, by way
of cross-suits, one, for permanent injunction by the
appellant basing her claim on gift deed executed in 1954 by
her mother, a Hindu widow, of the entire estate inherited by
her from her husband, and another for declaration and
partition by respondent assailing validity of the gift deed
and claiming reversioner's right after death of the mother
in 1968, has reached this Court by grant of special leave
against judgment of the Bombay High Court in Second Appeal
raising a legal issue of seminal importance as to nature of
right and title of female donee of Hindu widow's estate
after coming into force of Hidnu Succession Act
(hereinafter refferred to as the Act).
Facts are simple. Stakes, also, are not substantial,
but the issue is of far-reaching consequence. Could a Hindu
widow alienate by gift the entire estate inherited from the
husband, in favour of one of the female reversioners prior
to enforcement of Act 20 of 1956. In case answer to issue
is in the affirmative then what was the nature of right
that the donee got under law? Did she become an owner of a
widow's
605
estate, a limited owner, an owner with some right or title,
so as to acquire rights of absolute ownership under section
14 of Act or a trespasser and if trespasser then whether she
acquired rights by adverse possession by perfecting her
rights against the donor only or it was essential to
prescribe rights against reversioners as well?
Shorn of details, and various issues raised in the
suits, suffice it to mention that even though the trial
court found the gift deed to have been duly attested and
executed after obtaining permission from the appropriate
authority the claim of appellant, for permanent injunction,
was decreed not on Section 14 of the Act as the widow who
had executed the gift deed in 1954 was, `incompetent to
alienate widow's estate by gift permanently' under Hindu Law
but on adverse possession and estoppel. The appellate court
while affirming the finding on section 14 of the Act allowed
the appeal and dismissed the suit as `adverse possession
against the widow is not adverse against reversioners, and
the next reversioner is entitled to recover the possession
of the property or his share in it within 12 years from the
date of the death of the widow'. It was further held that
the appellant could not acquire, any right by, `estoppel
under section 41 of the Transfer of Property Act against
the reversioners by reason of the widow's conduct'. In view
of the concurrent findings of two courts below on section 14
of the Act the High Court appears to have been invited to
adjudicate, only, on the question if the appellate court
was justified in reversing the finding on adverse
possession wich it disposed of, treating it as finding of
fact, and observing that possession of appellant, `must be
deemed to be on behalf of other co-sharers in the absence of
any evidence before ouster of the other sisters'. Wheher
the High Court was justified in not examining the question
of adverse possession is not necessary to be gone into as
the appellant can succeed, only, if the finding recorded by
the first appellate court that the appellant could not
acquire any rights against reversioners during lifetime of
the widow is found to be erroneous in law.
But before doing so the claim of the appellant that she
became an absolute owner under section 14 of the Act,
reiterated, once again, in this Court, may be examined as it
is a question of law. A full bench of the Delhi High Court
in Smt. Chinti v. Smt. Daultu, AIR 1968 Delhi 264 held that
possession of a female donee in pursuance of gift deed
executed by her mother could not be characterised as illegal
or of trespasser, therefore, she being a female Hindu
`possessed' of the property on the date Hindu Succession Act
came into force became an absolute owner under section 14 of
the Act. When more or less similar
606
matter came up before Patna High Court in Sulochana Kuer v.
Doomati Kuer, AIR 1970 Patna 352 the court, held that, "a
Hindu woman's estate as such is not capable of transfer
either by sale or gift. The mere concept of such an estate
is not transferred on the transfer of properties attaching
to the estate". In Anath Bandhu v. Chanchala Bala, AIR
1976 Calcutta 303 the Calcutta High Court, specifically,
dissented from the Delhi decision and held that, "Section 14
wanted to benefit those female Hindus who were limited
owners in then existing Hindu Law before the commencement of
the Act. In the present case the limited owner Motibala
having transferred the limited interest to Chanchala before
the passing of the Act, it cannot be said that Chanchala's
limited interest,if any, ripened into absolute interest in
terms of section 14 of the Act". A full bench of Punjab
and Haryana High Court in Parmeshwari v. Santokhi, AIR 1977
Punjab 141 too, did not agree with Delhi High Court. It
went into the background of legislation, the original form
of the bill, ambit of the explanation, anomalies that would
result if, even, female alienee was deemed to be a limited
owner and held, " that section 14 of the Act was not
intended to benefit the alienees of a limited Hindu owner".
Similar view was taken by Andhra Pradesh and Madras, High
Court in AIR 1957 AP 280 and AIR 1958 Madras, Gaddam
Venkayama v. Gaddam Veeryya, and Marudakkal v. Arumugha.
Thus according to Delhi Court a donee of even entire Hindu
widow's estate became absolute owner under section 14 of the
Act whereas according to Patna, Calcutta, Punjab, Madras and
Andhra Pradesh High Courts, rights of a female donee under
Hindu Law, prior to coming into force of the Act did not
get enlarged under section 14 of the Act and it did not
preclude reversioners from assailing validity of the gift
deed. To ascertain which view accords more to the objective
sought to be achieved by the Act it appears necessary to
extract section 14 which reads as under:
(1) Any property possessed by a female
Hindu,whether acquired before or after the
commencement of this Act, shall be held by her as
full owner thereof and not as a limited owner.
Explanation In this sub-section, "property"
includes both movable and immovable property
acquired by a female Hindu by inheritance or
devise, or at a partition, or in lieu of
maintenance, or arrears of maintenance, or by gift
from any person, whether a relative or not, before,
at or after her marriage, or by her own skill or
exertion, or by purchase or by prescription, or in
any other manner what-
607
soever, and also any such property held by her as
Stridhana immediately before the commencement of
this Act.
(2) Nothing contained in sub-section (1) shall
apply to any property acquired by way of gift or
under a will or any other instrument or under a
decree or order of a civil court or under an award
where the terms of the gift, will or other
instrument or the decree, order or award prescribe
a restricted estate in such property.
Needless to emphasise that the section was a step forward
towards social amelioration of women who had been subjected
to gross dis-crimination in matter of inheritance. Even
when the Hindu Women's Rights to Property Act XVIII of
1937 was enacted it succeeded partially only. While
providing for inheritance and devolution to widow and even
widow of predeceased son the Act could not go beyond
creating limited interest or a Hindu woman's estate.
Absolute ownerships or female heir by effacing inequality
and putting male an female heirs at par in matter of
inheritance was achieved by the Succession Act. A female
Hindu inheriting property under the Act, also, became a
stock of descent. In Eramma v. Verrupana, [1966] 2 SCR 626
AIR 1966 SC 1789, this Court observed, "The object of the
section is to extinguish the estate called `limited estate'
or `widow's estate' in Hindu Law and to make a Hindu woman,
who under the old law would have been only a limited owner,
a full owner of the property with all powers of disposition
and to make the estate heritable by her own heirs and not
revertible to the heirs of the last male holder".
But did the legislature intend to extend same benefit,
namely, enlarge the estate, held, on the date the Act came
into force by any or every female Hindu into full and
absolute estate irrespective of whether she was a limited
owner or not. According to learned counsel for appellant
the answer should be given in affirmative. He urged that
since the age long traditional limitation on inheritance and
disposition by a female was removed and the section was
widely worded by using broad and comprehensive expressions
such as, `and property, `possessed', `acquired before or
after the commencement of the Act' and each of these
expressions have received expansive of the Act' and each of
these expressions have received expansive interpretations by
the Court there was no reason not to give similar
interpretation to the word female Hindu. The learned
counsel submitted that there was no warrant to confine scope
of the section to limited owners. He argued that if the
argument of the respondent was accepted it shall result in
substitution of the word ` female Hindu' with `limited
owner' which
608
would be contrary to legislative intention, the social
philosophy on which the section was founded and the
principle of interpretation. Relying on the explanation, to
the section, it was urged that it not only explained meaning
of the word `property' but it left no room for doubt that a
female Hindu possessed of any property, which satisfied the
extended meaning on the date the Act came into force, became
an absolute owner. It was further argued that the
expression `limited owner' has been used in the section not
to whittle down the otherwise simple and plain meaning of
the words `female Hindu' by introducing narrow concept of
widows' estate or limited owner but to put beyond doubt the
nature and status of rights of females after the Act.
Support was also drawn from the marginal note of the section
and it was urged that the words, `property of a female Hindu
to be her absolute property', was yet another indication to
interpret the word `female Hindu' widely, so as to include
in its ambit a donee from a limited owner.
That the section is not very happily worded, does not
admit of any doubt. It was commented upon by this Court in
V. Tulsamma v. Shesha Reddy, [1977] 3 SCC 99 and it was
observed that the section was, "a classic instance of
statutory provision which, by reason of its inapt
draftsmanship has created endless confusion for litigants".
May be so but the answer to the issue must emerge from the
section, its background, purpose of its enactment and the
reason for use of such wide expression. Nothing turns on
the marginal note as it is usually not restored to for
construing meaning of a section, particularly, when the
language is plain and simple. It is well settled that a
section has to be read in its entirely as one composite unit
without bifurcating it or ignoring any part of it. Viewed
from this perspective the section, undoubtedly, comprises of
two parts, one descriptive, specifying the essential
requirements for applicability of the section, other
consequences arising out of it. One cannot operate without
the other. Neither can be read in isolation. Both are
integral parts of the section. Mere provision that any
property possessed by a female Hindu on the date the Act
came into force shall be held by her would have been
incomplete and insufficient to achieve the objective of
removing inequality amongst male and female Hindus unless it
was provided that the otherwise limited estate of such a
female would become enlarged into full or absolute estate.
Any other construction would result in not only ignoring the
expression, `and not as a limited owner' which would be
against principle of interpretation but also against the
historical background of enactment of the section. Whereas
if it is read in its entirety with one part throwing light
on another then the conclusion is irresistible that a
limited owner became a full owner provided she was
609
in possession of the property on the date of enactment of
the Act.
Property acquired by a female Hindu before the Act came
into force comprised, broadly, of inherited property or
stridhana property acquired by her from a male or female.
Nature of her right in either class of property, unlike
males, depended on the school by which she was governed as
well as whether it came to her by devolution or transfer
from a male or female. This invidious discrimination was
done away with after coming into force of 1956 Act and the
concept of Hindu widows' estate or limited estate or
stridhana ceased to exist by operation of section 14 read
with section 4 of the Act which has an overriding effect. A
female Hindu who but for the Act would have been a limited
owner become full owner. But the section being retrospective
in operation the meaning of female Hindu prior to 1956 has
to be understood in the light of Hindu Law as it prevailed
then. The section enlarged the estate of those female Hindu
who otherwise would have been limited owners. This result
follows by reading the first part with the last which uses
the expression, 'held by her as full owner thereof and not
as a limited owner'. To put it differently a limited owner
become a full owner provided she was a female Hindu who was
possessed of any property acquired before the commencement
of the Act. Therefore, mere being female Hindu was not
sufficient. She should have been of that class of female
Hindus who could on existence of other circumstances were
capable of becoming full owners. Further the Act being
applicable by virtue of section 2 to not only Hindus by
religion but also to Buddhists, Jains or Sikhs and to any
person who was not a Muslim, Christian, Parsi or Jew it was
but necessary to use an expression of such wide connotation
as female Hindu because by virtue of sub-section (3) of the
section the word `Hindu' in any portion of the Act, which
includes section 14, the word had to be understood as
including not only a person who was Hindu by religion but
even others. However, the objective being to remove
disparity and injustice to which females were subjected
under Hindu Law the section limits its operation to such
female Hindus who were limited owners. Reference to the
explanation by the learned counsel was also not very
apposite. It was appended to widen the meaning of property
by adding to it the inherited property, and the property
which came to be possessed by a female Hindu in manner
mentioned in it. Its effect was that a female Hindu became
absolute owner not only in respect of inherited property but
even of property received by way of gift or on partition or
in lieu of maintenance etc. provided she was a limited
owner. And not that it enlarged the estate of even those who
were not limited owner. Any other construction would
militate against the, otherwise, clear meaning of sub-
section (1).
610
Although this section has come up for interpretation,
by this Court, on various occasions in different context but
in none of these cases the Court had occasion to examine the
ambit of expression female Hindu and whether it extended to
females other than limited owner. Since in every case
whether it was decided for or against it was the widow who
was alive on the date the Act came into force and she being
a limited owner the decision turned on if she was
`possessed' of the property so as to become full owner. For
instance in Gummalapura Taggina Matada Kotturuswami v. Setra
Veeravva & Ors., [1959] Supp. 1 SCR 968=AIR 1959 SC 577" the
widow was held to have acquired rights as the adoption made
by her having been found to be invalid she was deemed to be
in constructive possession and thus `possession' of the
property on the date the Act came into force. Mangal Singh
v. Smt. Rattno, AIR 1967 SC 1786 was another case where
widow's constructive possession enured to her benefit as she
having been dispossession by her collaterals in 1954 and
filed a suit for recovery of possession before the Act came
into force was held to be `possession' of the property so
as to entitle her to become full owner. Munna Lal v. Raj
Kumar, AIR 1962 SC 1495 was a case where the share of the
widow was declared in preliminary decree. No actual division
of share had taken place, yet the court held that it was
property `possessed' by her on the date the Act came into
force. In Sukhram v. Gauri Shankar, [1968] 1 SCR 476 it was
held that a widow was full owner in joint Hindu family
property as she became entitled to the interest which her
husband had by virtue of Hindu Women Right to Property Act.
The Court ruled that even though a male was subject to
restrictions qualienation on his interest in joint Hindu
family property, but a widow acquiring an interest by virtue
of the Act did not suffer such restriction. V. Tulsamma v.
Shesha Reddy, [1977] 3 SCC 99 and Bai Vijia v. Thakorbhai
Chelabhai, [1979] 3 SCC 311 were cases where the widow was
`possessed' of the property in lieu of maintenance, and
therefore, she was held to be full owner. In all these cases
since the widow was in possession, actual or constructive,
on the date the Act came into force she was held to be a
female Hindu `possessed' of the property, and consequently,
her limited ownership stood converted into full ownership by
operation of law. Even in Eramma v. Verupana (supra) and
Kuldeep Singh v. Surain Singh, [1988] Andhra law Times,
where the benefit was denied under section 14 the female
Hindu were widows but they were not held to be `possessed'
of the property because their possession was not backed by
even the remotest vestige of title. in Eramma's case (supra)
the benefit was denied as Hindu Women's Right to Property
Act being not applicable on the date the succession opened
she could not be held to be possessed of the property. And
in
611
Kuldeep Singh's case (supra) she had been divested of her
interest as a result of transfer made by her. Contest in
all these cases was between reversioner and the widow
herself or the person claiming through her. Review of these
decisions indicates that this Court has consistently taken
the view as stated in Bai Vijia v. Thakorbhai Chelabhai,:
"For the applicability of sub-section, two
conditions must co-exist, namely,
(i) The concerned female Hindu must be possessed of
property; and
(ii) Such property must be possessed by her as a
limited owner."
mention is necessary to be made in this connection
about observation in Gulwant Kaur v. Mohinder Singh, [1987]
3 SCC 674 that the Court in Bai Vijia's case did not
support, to lay down, that, "what was enlarged by sub-
section (1) of section 14 into a full estate was the Hindu
woman's estate known to Hindu Law. When the Court uses the
word, `limited estate', the words are used to connote a
right in the property to which possession of the female
Hindu may be traced, but which is not a full right of
ownership". Gulwant Kaur's case was concerned with
acquisition of right by wife, on entrustment of property in
lieu of maintenance, after 1956, when the concept of widows'
estate or limited estate or even stridhana had ceased to
exist. Therefore, what was necessary was being possessed of
property, actual or constructive, by female Hindu under some
right or title. Whereas Bai Vijia's case was concerned with
acquisition of right in property held in lieu of maintenance
before 1956. Therefore a female Hindu could become absolute
owner only if she was limited owner. Sub-section of section
14 deals with right of female Hindu both before and after
the Act came into force. Female Hindu could become absolute
owner of property possessed by her on the date the Act came
into force only if she was a limited owner whereas she would
become absolute owner after 1956 of the property of which
she would otherwise have been a limited owner.
Reference may be made to Maharaja Pallai Lakshmi Ammal
v. Maharaja Pillai T. Pilllai, [1988] 1 SCC 99 where this
Court while examining right of wife put in exclusive
possession of the property with the right to take the income
for her maintenance was held to have become full owner under
section 14(1) as she entered into possession after the death
of her husband in 1955 and was in possession in 1956.
612
The Court held that the right to utilise income for her
maintenance must be "presumed to have resulted in property
being given to her in lieu of maintenance". On this finding
the property being possessed on the date the Act came into
force as contemplated in the explanation, the widow being a
limited owner became a full owner and the gift executed by
her in favour of her daughter after 1956 was
unexceptionable. The Court, however, while repelling the
submission advanced on superficial conflict in Gulwant Kaur
and Bai Vijia reiterated what was observed in Gulwant Kaur's
case. As already discussed Gulwant Kaur's case related to
acquisition of property after 1956 whereas in Bai Vijia it
was acquired before 1956. The observations made in the two
decisions must be understood in that context. Moreover in
Gulwant Kaur's case the ratio was founded on Jagannathan
Pillai v. Kunjithapadam Pillai, [1987] 2 SCC 572 a decision
which shall be adverted to later. But it too was concerned
with acquisition after 1956. And the bench while discussing
scope of section 14(1) observed.
"that the limited estate or limited ownership of a
Hindu female would enlarge into an absolute estate
or full ownership of the property in question in th
following fact situation:
`Where she acquired the limited estate in the
property before or after the commencement of the
Act provided she was in possession of the
property at the time of the coming into force of
the Act on June 17, 1956'."
None of these decisions, namely, Gulwant Kaur (supra)
or Maharaja Pillai (supra ) or Jagannathan Pillai purported
to lay down that the Section 14(1) contemplated enlargement
of estate prior to 1956 of even those females who were not
limited owners. According to Mulla's Hindu Law (sixteenth
edition, paragraph 174) every female who took a limited or
restricted estate was known as limited heir. And according
to every school except Bombay every female who succeed as an
heir whether to a male or female took a limited estate in
the property. Even in Bombay a female who by marriage
entered into Gotra (family) of the deceased male inherited a
limited estate only. And in paragraph 176 it is stated that
incident of estate taken by every limited owner was similar
to incident of widow's estate. Mayne's Hindu Law, (12th
edition, paragraph 671) too brings out the same by stating
that the typical form of estate inherited by a woman from a
male was compendiously known as the widow's estate. And the
limitation which applied to such estate applied to all
estate derived by a female by
613
descent from a male or female whether she inherited as
daughter, mother, grandmother, sister or as any other
relation. Even stridhana property according to Mulla created
limited interest in its successors, except in Bombay in
certain circumstances and a female inheriting stridhana took
a limited interest in it and on her death it passed not to
her heirs but to the next stridhan heirs of the female from
she inherited.
Thus on plain reading of the Section, and its
interpretation by this Court in various decisions a female
possessed of the property on the date the Act came into
force could become absolute owner only if she was a limited
owner. This being the legal position it may now be seen if
a Hindu widow could transfer or alienate widow's estate by
way of gift prior to 1956 and if so to what extent. And in
such alienation what right or interest was created in the
alienee. Did she become a limited owner so as to become a
full owner under Section 14 of the Act? A Hindu widow
succeeding or inheriting any property from her husband or as
widow of predeceased son, held limited interest known as
Hindu women's estate, prior to coming into force of 1956
Act, under the Hindu Women's Right to Property Act, 1937.
Since such an estate could not be alienated under Hindu Law
except in certain circumstances and for specific purpose the
holder of the estate was known as limited owner. The
expression `limited owner' thus could not be understood,
except as it was interpreted and understood in Hindu Law.
Could the same be said of a female donee or alienee? The
Delhi High Court assumed that a female donee was a limited
owner, consequently, of she was possessed of the property on
the date the Act came into force and her possession was not
`without title', she became an absolute owner. Basis for the
decision was construction of the word `possessed' by this
Court in Gummalapura Taggina's case (supra) wherein it was
held that the word was used in widest connotation so that a
widow, even if in constructive possession, was entitled
to absolute ownership under Section 14 of the Act. Support
was also drawn from converse case of Eramma (supra) this
Court negatived the claim of widow under Section 14 as her
possession on the date the Act came into force was not
legal but that of a trespasser. What the High Court lost
sight of was that the claim of widow in Gummalapura's case
(supra) was upheld because the adoption made by her having
been found to be invalid she was deemed to be in
constructive possession on the date the ACt came into force.
And Eramma's case (supra) was concerned with a widow, who
claimed to have inherited through son in State of Hyderabad
where Hindu Women's Rights to Property Act did not apply on
the date the son died. Consequently, it was held that ``the
614
provisions of Section 14 of the Act cannot be attracted in
the case of a Hindu female who is in possession of the
property of the last male holder on the date of the
commencement of the Act when she is only a trespasser
without any right to property''. The High Court overlooked
the vital observation made in earlier part of the judgment
to the effect. ``In other words, Section 14(1) of the Act
contemplates that a Hindu female who in absence of this
provision, would have been limited owner of the property,
will now become full owner of the same by virtue of this
Section.''
Limited owner commonly means a person with restricted
rights as opposed to full owner with absolute rights. In
relation to property absolute, complete or full ownership
comprises various constituents such as the right to posses,
actual or constructive, power to enjoy, that is to determine
manner of use extending even to destroying, right to
alienate, transfer or dispose of etc. Any restriction or
limitation on exercise of these rights may result in limited
or qualified ownership. For instance restriction on
enjoyment of property or its alienation. Such restriction or
limitation may arise by operation of law or by deed or
instrument. The limited ownership of female Hindu in Hindu
Law arose as a matter of law. A Hindu widow, according to
different schools, Banaras, Bengal or Mithila and even in
Bombay inherited or succeeded to property whether of male or
female as a limited owner and held a limited estate only.
Nature of such estate was explained by the Privy Council in
Janki Ammal v. Narayanaswami, [1916] p. 43 I. A. p. 207 to
be, ``her right is of the nature of a right to property, her
powers in that character are limited''. In Jaisri v. Raj
Diwan Dubey, [1961] 2 SCR 559 it was observed by this Court
that ``when a widow succeeds as heir to her husband the
ownership in the property both legal and beneficial vests in
her''. And the restriction on her power to alienate except
for legal necessity is imposed, ``not for the benefit of
reversioners but is an incident of estate''. Thus a Hindu
widow prior to 1956 held the property fully with right to
enjoy or even destroy or dispose it of or alienate it but
such destruction or alienation should have been impressed
with legal or for religious or charitable purposes or for
spiritual welfare of the husband. Necessary consequences
that flowed from an alienation for legal necessity was
that the property vested in the transferee or alienee, and
the reversioners were precluded from assailing its validity.
In Kamala Devi v. Bachu Lal Gupta, [1957] SCR 453 this Court
after reviewing various authorities extended this principle
to female donee. A gift made within reasonable limits, in
favour of daughter even two years after the marriage but in
pursuance of promise made at time of the marriage was upheld
and
615
the reversioners claim was repelled on permissible
alienation under Hindu Law. But what right or title is
acquired by the alienee if transfer is against legal
necessity or contrary to law? The authorities appear to be
at one that such transfer being not void but voidable could
be avoided by reversioners including Govt. taking by escheat
Collector of Masulipatam v. Cavaly Vencata, [1861] 8 M.I.A.
529. But the widow was held bound by the transfer.
In Natwalal Punjabhai & Anr. v. Dadubhai Manubhai &
Ors., AIR 1954 SC 61, the Court held as under:
"The Hindu Law certainly does not countenance
the idea of a widow alienating her property without
any necessity merely as a mode of enjoyment as was
suggested before us by Mr. Ayyangar. If such a
transfer is made by a Hindu widow it is not correct
to say that the transferee acquires necessarily and
in law an interest commensurate with the period of
the natural life of the widow or at any rate with
the period of her widowhood. Such transfer is
invalid in Hindu Law, but the widow being the
grantor herself, cannot derorate from the grant and
the transfer cannot also be impeached so long as a
person does not come into existence who can claim a
present right to possession of the property."
Thus if prior to 1956 any alienation was made by a Hindu
widow of widow's estate prohibited by law or being beyond
permissible limits, it stripped the widow of her rights and
she could not acquire any rights under section 14. And so
far as alienees were concerned it could utmost create
temporary and transitory ownership precarious in nature and
vulnerable in character open to challenge if any attempt was
made to cloud reversioner's interest. Her possession may be
good against the world, her right in property may not be
impeachable by the widow but her interest qua the
reversioner was to continue in possession at the maximum
till the lifetime of her donor of transferor. It was life
interest, loosely, as the duration of interest created under
invalid transfer came to an end not on death of donee or
transferee but donor or transferor. So far as the male
alienees from limited owners, that is female Hindu prior to
1956, are concerned, it was held by this Court in Radhey
Krishan Singh & Ors. v. Shiv Shankar Singh & Ors., [1973] 2
SCC 472 that, the alienation could be challenged by the
reversioner as there was nothing in the Hindu Succession Act
which has taken away such a right. A female alienee did not
enjoy better or different status as the Hindu Law applied
universally and uniformaly
616
both to male and female alienees. She did not become limited
owner or holder of a limited estate as understood in Hindu
Law. And the alienation without legal necessity could be
assailed by the reversioner. No change was brought about in
this regard by the Act. If the alienation was valid i.e., it
was for legal necessity or permitted by law then the donee
became an owner of it and the right and title in the
property vested in her. But if it was contrary to law, as in
this case the gift being of entire widow's estate, then it
did not bind the reversioner who could file a suit after the
death of the widow. And the appellant cannot claim to have
acquired title to the property under the gift deed. Nor had
she become a limited owner under Hindu Law which could
mature into full ownership when the Act came into force. In
fact such possession was not backed any title as against
reversioner which could preclude her from bringing the suit
for declaration.
Reliance was placed on observations in Jagannathan
Pillai v. Kunjithapadam Pillai & Ors., [1987] 2 SCR 1070
that, ``To obviate hair splitting, the legislature has made
it abundantly clear that whatever be the property possessed
by a Hindu female, it will be of absolute ownership and not
of limited ownership notwithstanding the position under the
traditional Hindu Law'', and it was submitted that the
appellant satisfied the criteria to entitle her to claim
that her estate irrespective of its nature Hindu Law got
enlarged under section 14 of the Act. An observation without
reference to facts discloses neither the law nor the ratio-
de-cedindi which could be taken assistance of. Factually,
the issue was the effect of re-transfer by the alienee in
favour of the widow after 1956. And the answer was that,
``When the transaction was reversed and what belonged to her
was retransmitted to her, what the concerned Hindu female
acquired was a right which she herself once possessed
namely, a limited ownership (as it was known prior to the
coming into force of the Act) which immediately matures into
or enlarges into a full ownership in view of Section 14(1)
of the Act on the enforcement of the Act. The resultant
position on the reversal of the transaction would be that
the right, title and interest that the alienee had in the
property which was under `eclipse' during the subsistance
of the transaction had re-emerged on the disappearance of
the eclipse''. Truely speaking, the interpretation of sub-
section (1) of section 14 was no different from the other
decisions as is clear from the extracts quoted earlier. It
is thus clear that an alienee from a Hindu widow prior to
1956 did not acquire limited estate or widow's estate nor
she was a limited owner who could get any benefit under
section 14 of the Act. It was not even a life estate except
loosely, as the right to continue in possession was not
related with her span of life but of the
617
transferor that is the Hindu widow. The decision of Delhi
High Court, therefore, does not lay down the law correctly.
The other view taken by Patna, Calcutta and Punjab and
Haryana Courts that sub-section (1) of section 14 did not
extend the benefit of full ownership to female alienees
brings out the objective of the section appropriately and
correctly.
Nor is the decision in Badri Pershad v. Smt. Kanso Devi,
[1970] 2 SCR 95 of any assistance. It was a case where the
widow entitled to the interest of her husband got certain
property prior to 1956 as a result of arbitration with
specific stipulation and she shall have only life interest.
This was ignored asnd she was held, rightly, to be the
absolute owner whose rights were governed by section 14(1)
and not 14(2).
Further Hindu Succession Act did not obliterate Hindu
Law. What has ceased to be operative after coming into force
of the Act under section 4 is text or rule etc. for which
privision is made in the Act. And under section 4(2) any law
in force immediately before the commencement of the Act
ceased to have effect if it was inconsistent with any
provision of the Act. Therefore except to the extent
provision has been made in section 14, that is, enlargement
of the estate of limited owner, the Hindu Law in other
regards remained opearative. There is no provision in the
Act which deprives reversioners of their rights except to
the extent mentioned in section 14. In Radha Rani v. Hanuman
Prasad, AIR 1966 SC 216 this Court overruled the decisions
of the Allahabad and Patna High Courts that there were no
reversioners or reversionary rights after 1956 and held,
``it is open to reversioner to maintain a suit for
declaration that an alienation made by a Hindu female
limited owner before the coming into force of Hindu
Succession Act 1956 was without legal necessity and was not
binding upon reversioners''.
Coming now to the issue of adverse possession the High
Court was not justified in concluding that it was a question
of fact. Possession under a gift deed which was found to be
invalid, as it was not permitted under Hindu Law was on
general principle contrary to law, and as such could be
adverse. When did it become adverse to the donor and what
circumstances constitute adverse possession against the
donor is an aspect which does not arise for consideration
as, even assuming in favour of the appellant, the question
is, if adverse possession against donor was sufficient to
clothe her with right or title in the property so as to
deprive the reversioners of their right to claim the
property after the death of the widow? In Radha Rani's case
(supra) this Court held.
618
``In the case of an alienation by Hindu widow
without legal necessity, the reversioners were not
bound to institute a declaratory suit during the
lifetime of the widow. They could wait till her
death and then sue the alienee for possession of
the alienated property trating the alienation as a
nullity.''
Therefore, it is obvious that the appellant could not
acquire any right by adverse possession against reversioner
during lifetime of her mother. Her claim was rightly
negatived.
Before parting with this case, we express our thanks to
Sri Padmanabhan, Senior Advoacate who, on our request
rendered valuable assistance. We are thankful to Sri Parekh
and Sri Narasimhulu also for their assistance.
The result is that this appeal fails and is dismissed.
But there shall be no order as to costs.
R.P. Appeal dismissed.
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