whether the gift by father from joint family is valid – “Gifts of affection- The father’s power to make gifts through affection within reasonable limits of ancestral movable property has been fully recognized. In Ramalinga v Narayana (1922 (49) IA 168) the Privy Council held that “the father has undoubtedly the power under the 21 « advocatemmmohan

whether the gift by father from joint family is valid – “Gifts of affection- The father’s power to make gifts through affection within reasonable limits of ancestral movable property has been fully recognized. In Ramalinga v Narayana (1922 (49) IA 168) the Privy Council held that “the father has undoubtedly the power under the 21 « advocatemmmohan

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 598 OF 2005

Baljinder Singh ....

Appellant

Versus

Rattan Singh .....Respondent

(With C.A. Nos. 605/2005 and 601/2005)

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. These appeals are directed against a common judgment

of a learned Single Judge of the Punjab and Haryana High

Court disposing of three Second Appeals filed under Section

100 of the Code of Civil Procedure, 1908 (in short `CPC'). All

the three appeals and the cross objections filed related to

certain acts of one Shivdev Singh. All the appeals and cross

objections were dismissed except with certain modifications.

2. The background facts in a nutshell are as follows:

Shiv Dev Singh was allotted land measuring 811 kanal

14 marlas out of which he effected sale of 440 kanals earlier.

The said sale is not disputed in the present proceedings. Shiv

Dev Singh earlier married Harbans Kaur and from the said

wedlock one son i.e. plaintiff Lt. Col. Rattan Singh, and four

daughters who are also plaintiffs along with Lt. Col. Rattan

Singh in Civil Suit No.172 of 3.9.1994 were born. Smt.

Harbans Kaur died in the year 1986. Shiv Dev Singh

thereafter married Iqbal Kaur and from wedlock of Shiv Dev

Singh with Iqbal Kaur, Jaspal Singh, Lakhwinder Kaur,

Sukhjinder Kaur and Baljinder Singh and Balwinder Singh

were born. The dispute in these appeals is in respect of the

land measuring 337 kanals 10 marlas. Shiv Dev Singh

2

executed a gift deed on 19.12.1962 in favour of Jaspal Singh,

one of the sons of Shiv Dev Singh in respect of land measuring

10 kanals 5 marlas. The said gift deed was disputed by his

another son Lt. Col. Rattan Singh and four daughters in Civil

Suit No172 of 3.9.1994. Regular Second Appeal No.2550 of

2000 before the High Court arose out of the said suit.

The said suit was for declaration to the effect that they

are co owners in joint possesson to the extent of = share, and

that the property in the hands of Shiv Dev Singh was

ancestral. In the written statement, the defendant denied that

the land was ancestral. It was asserted that same was self

acquired property of Shiv Dev Singh. It was pleaded that since

19.12.1962 when Shiv Dev Singh gifted the land in his favour,

possession was delivered to him and ever since he is

continuing in possession as owner of the suit land. Jaspal

Singh, the donee, was minor at the time of execution of gift

deed. The learned trial Court recorded a finding that the suit

land was ancestral in the hands of Shiv Dev Singh and that

alienation of ancestral property effected by father of a Hindu

3

governed by Mitakshara law could be challenged in terms of

Article 109 of the Limitation Act, 1963 (in short the `Limitation

Act') within 12 years from the date when alienee takes

possession of the property alienated. Since Jamabandi for the

year 1973-74, (Exhibit D-8) Jamabandi for the year 1978-79

(Exhibit D-9), Jamabandi for the year 1983-84 (Exhibit D-10)

record Jaspal Singh as a person in possession, the Court

returned a finding that Jaspal Singh came into possession

more than 12 years before the filing of the suit and thus, the

suit is beyond the period of limitation.

Shiv Dev Singh also executed two separate sale deeds on

25.2.1980 and 27.3.1980 in respect of land measuring 73

kanals 11 marlas in favour of Pritam Kaur, widow of Thakur

Singh, who happened to be sister of Iqbal Singh, wife of Shiv

Dev Singh. After the death of Pritam Kaur on 1.4.1990, the

same devolved upon defendant Baljinder Singh, minor son of

Jaspal Singh i.e. grandson Shiv Dev Singh by virtue of will

dated 30.1.1984. The said sale deeds were disputed by Lt.Col.

Rattan Singh in Civil Suit No.171 of 6.9.1994. Regular Second

4

Appeal No.2549 of 2000 before the High Court arose out of

said suit.

In the said suit, the challenge is to the sale deeds dated

25.2.1980 and 27.3.1980 whereby Shiv Dev Singh has sold

the land in favour of Pritam Kaur, his sister-in-law through

his attorney Jaspal Singh. In the said suit it was alleged that

the suit land was ancestral having been inherited from his

forefathers and that the sale deeds were without legal

necessity and thus null and void. It was alleged that the

defendant, son of Jaspal Singh is in illegal and unauthorized

possession of the suit land without any legal right for the last

four years. The plaintiff alleged that the cause of action

accrued in the year 1993 when the share of compensation

amount in respect of the land acquired by the Improvement

Trust was not allowed to be withdrawn by the plaintiff at the

instance of Iqbal Kaur, second wife of Shiv Dev Singh. The

defendant in written statement pleaded that the sales in

question are not in any way illegal, without consideration

and/or void. Shiv Dev Singh was the sole owner of the suit

5

land. The suit land remained in possession of Smt. Pritam

Kaur as owner ever since the sale in her favour. It was alleged

that cause of action, if any, arose to the plaintiff to challenge

the alienation on the date of execution of the sale deeds. The

learned trial Court dismissed the suit holding that the suit is

barred by limitation governed by Article 109 of the Limitation

Act as revenue record since Jamabandi 1983-84 (Exhibit D-5)

records the name of Pritam Kaur in the column of ownership

and cultivation. The said Jamabandi entry was recorded after

mutation in favour of Pritam Kaur and was sanctioned in the

year 1980.

Shiv Dev Singh also executed a registered will dated

1.8.1969 in favour of his wife Iqbal Kaur. At the time of death

of Shiv Dev Singh on 9.6.1988 he was owner of land

measuring 107 kanals 13 Marlas. Lt. Col. Rattan Singh and

his four sisters filed suit for declaration to claim = share of

the said land on the basis of natural succession and for joint

possession in Civil Suit No.170 of 3.9.1994. Regular Second

6

Appeal No.2548 of 2000 before the High Court arose out of the

said suit.

The said suit was for declaration and in the alternative

for joint possession filed, inter alia, on the ground that they

are owners of = share of the land. It was averred that Shiv

Dev Singh son of Sahib Singh was owner of 107 kanals 13

marlas of land which was inherited from his forefathers and it

was ancestral. Shiv Dev Singh died on 9.6.1988 leaving

behind plaintiffs and defendants Nos. 1 and 4 to 6 and Smt.

Lakhwinder Kaur as his legal heirs. Lakhwinder Kaur died on

18.6.1993 leaving behind defendants Nos. 2 and 3 as her legal

heirs. It was averred that defendant no.1 has claimed a will in

her favour. The deceased Shiv Dev Singh has not executed

any valid will in favour of defendant No.1 and the alleged will

is false and fabricated. It was further alleged that the plaintiffs

have succeeded to the estate of Shiv Dev Singh to the extent of

= share and the defendants succeeded to the remaining =

share of his estate. Defendant No.1 relied upon will dated

1.8.1969 and claimed that she has become the exclusive

7

owner in possession of the suit land. In evidence, the

defendants produced son of the scribe and one of the attesting

witnesses of the will. The trial Court held that the said will is

proved to have been executed and is not surrounded by

suspicious circumstances. One of the reasons for coming to

such view by the trial Court was that Lt. Col. Rattan Singh

has got 8 acres of land earlier and thus, the plaintiffs cannot

make any grievance.

3. However, in three separate appeals, the first Appellate

Court reversed the findings recorded by the trial Court. The

first Appellate Court held that Civil Suit No.171 and 172 of

1994 are within the period of limitation as cause of action

arose to them when they were excluded from the Joint Hindu

Family property in the year 1992. However, in respect of the

will, the first Appellate Court held that it is surrounded by

suspicious circumstances and consequently decreed the suit

holding that the estate of Shiv Dev Singh will vest on the

coparceners Rattan Singh, Jaspal Singh and Iqbal Kaur wife of

Rattan Singh in equal shares and thus plaintiff Lt. Col. Rattan

8

Singh would have 1/3rd share and the defendants Jaspal

Singh and Iqbal Kaur would have 2/3rd share.

4. Aggrieved by the findings recorded by the learned First

Appellate Court, Second Appeals were filed.

5. The plaintiffs also filed cross objections in each of the

appeals claiming that the judgment and decree of the first

Appellate Court granting 1/3rd share to Rattan Singh is

incorrect as a matter of fact plaintiff Rattan Singh has =

share.

6. In Second Appeals the findings of the Courts below that

the land is joint Hindu Family coparcenary property was not

disputed. This fact was not disputed even before the learned

trial Court. It was also not disputed that the sale deeds were

executed without legal necessity and Shiv Dev Singh was not

competent to gift the property. However, what was disputed is

that the suit challenging alienation by way of gift in the year

1962 and sale deeds in the year 1980 by way of suit filed in

9

the year 1994 were clearly beyond the period of limitation as

prescribed under Article 109 of the Indian Limitation Act,

1963 (in short the `Limitation Act'). The first Appellate Court

had recorded a finding that the plaintiffs acquired knowledge

of alienation by way of gift and sale in the year 1992 after Lt.

Col. Rattan Singh retired from army. Learned counsel for the

appellants before the High Court disputed such finding as one

based upon perversity. It was that it is impossible to believe

that the gift deed executed in the year 1962 mutation of which

was recorded in the year 1967 came to the notice of the

plaintiffs only in the year 1992 since plaintiff Lt. Col. Rattan

Singh was visiting the village every year during his annual

leave. However, since the first Appellate Court has believed

the statement of the plaintiff to record a finding that he

acquired the knowledge of alienation of the year 1992, it

would a finding of fact. High Court was of the view that even if

a different view was possible to be taken it would not entitle

the High Court to take a different view in Second Appeal. The

finding recorded by the first Appellate Court was held to have

been arrived at after discussing the relevant oral and

10

documentary evidence. Therefore, the High Court proceeded

on the assumption that plaintiff Lt. Col. Rattan Singh came to

know about the alienation in the year 1992.

7. The High Court formulated following substantial

questions of law for consideration:

1. Whether the gift deed executed by Shiv Dev Singh

in favour of son Jaspal Singh on 19.12.1962 is void

or voidable?

2. Whether the sale deeds dated 25.2.1980 and

27.3.1980 executed by Shiv Dev Singh in favour of

Pritam Kaur, his sister in law, is void or voidable?

3. Whether the suit for possession is within the period

of limitation or such suit is barred by limitation in

terms of Article 109 of the Limitation Act, 1963?

4. Whether Will dated 1.8.1969 executed by deceased

Shiv Dev Singh in favour of his wife Iqbal Kaur is

proved to be duly executed and is not surrounded

by suspicious circumstances?

11

 5. What will be the share of the plaintiffs in the suit

property consequent to the decision on the above

questions of law?

8. The genealogy as given below indicating the relationship

between the parties was taken note of by the High Court.

Shivdev Singh

!

!

!

Harbans Kaur - Wife Iqbal Kaur (wife) Pritam Kaur

(Sister of Iqbal)

____________________________________________________ _______________________________________________

! ! ! ! ! ! ! ! !

Rattan Gurbachan Manjit Kuldip Balwinder Jaspal Lakhwinder Sukhwinder Baljit

Singh Kaur Kaur Kaur Kaur Singh Kaur Kaur Kaur

(R-1 in (R-2 in (R-2 in (R-2 in (R-2 in (App.No (since (App.no.5 (App.No.

All C.A.No. C.A.No. C.A. C.A.No. 1 in C.A. deceased) in C.A. No. 6 in C.A.

Appeals ) 605 and 605 and 605 & 605 and No.605 605 and No. 605 and

601 of 601 of 601 of 601 of and App. App.No.4 App.No.5 in

2005) 2005) 2005) 2005) No.6 in in C.A. C.A.601 of

C.A.601 601 of 2005)

Of 2005) 2005)

___________________________

! !

Baljinder Singh Gurtej Singh

(App. In C.A. (App.No.2 in

No.598/2005) in C.A.605 and

App.No.1 in C.A

No.601 of 2005)

9. After analyzing the legal position and the applicable

Hindu Law the High Court inter alia came to the following

conclusions:

12

"In the judgment and decree passed by the

learned first Appellate Court holding that

Rattan Singh plaintiff will have 1/3rd share is

not sustainable as the share of Shiv Dev Singh

was excluded for the reason that Shiv Dev

Singh during his life time sold 50-60 acres of

land and, thus he ceased to have any share in

the suit land. The said reasoning is not

sustainable in law. The sale effected by Shiv

Dev Singh during his life time will diminish the

joint property of all the coparceners. Such sale

is not disputed and, therefore, such sale is for

the benefit of coparcenary body and, thus, it

cannot be said that such sale was out of the

share of Shiv Dev Singh alone. In terms of

Explanation 1 to Section 6 of the Hindu

Succession Act, 1956, the notional partition is

to be presumed immediately before the death

of Shiv Dev Singh. Therefore, Shiv Dev Singh

will have equal share within Rattan Singh,

Jaspal Singh and Iqbal Kaur.

Immediately before the death of Shiv Dev

Singh, the coparceners were Shiv Dev Singh

himself, Rattan Singh plaintiff, Iqbal Kaur (wife

of Shiv Dev Singh), and Jaspal Singh. The

married daughters from the first wife Harbans

Kaur or from the second wife Iqbal Kaur were

not coparceners and, thus not entitled to any

share. Thus, Shiv Dev Singh, Rattan Singh,

Jaspal Singh and Iqbal Kaur shall have 1/4th

share each as coparcener. One fourth share of

Shiv Dev Singh will fall equally to the share of

one son and four daughters from his first wife

Harbans Kaur one son and three daughters

from the second wife Iqbal Kaur and Iqbal

Kaur herself i.e. 1/4th share to each of the

13

 legal heirs of Shiv Dev Singh at the time of his

death".

10. It was inter alia held that the deed of gift purported to

have been executed by Shivdev Singh in favour of Jaspal

Singh was surrounded by mysterious circumstances and was

not a genuine document. So far as the sale deeds in favour of

Pritam Kaur are concerned it was held that Article 65 of the

Limitation Act was applicable. While the challenge in the first

suit relating to the sale deeds was filed on 1.9.1994, the other

suits challenging the gift purported to have been made on

19.12.1962 and the will purported to have been executed on

1.8.1969 were filed on 3.9.1994.

11. In the present appeals, challenge to the High Court's

judgment was on various grounds. We shall deal with them

separately.

14

12. So far as the appeal relating to the effect of the sale deed

is concerned, it was submitted that the High Court had made

out a new case about applicability of Article 65 of the

Limitation Act, while the trial Court and the first Appellate

Court had proceeded on the basis that Article 109 was

applicable. Similarly, the basic issue was whether the sale

deed was void or voidable. So far as the appeal relating to

validity of the gift made by Shivdev Singh is concerned,

according to learned counsel, the relevant issue is whether he

made the gift and if the answer to the question is in the

affirmative, to what extent could he had made the gift. Here

again the question was whether the gift was void or voidable.

So far as the appeal relating to the validity of the Will is

concerned, it was submitted that the Courts below failed to

notice that there was nothing suspicious about execution of

the Will and the evidence on record clearly established that

the Will had been executed out of free will and was not tainted

in any way.

15

13. In response, learned counsel for the respondent

submitted that the High Court has analysed the legal and the

factual position in great detail and has rightly dismissed the

appeals.

14. The first issue in the appeals relates to the validity of the

sale deeds. Articles 65 and 109 operate in different fields. The

trial Court categorically found that Article 65 was not

applicable and Article 109 was applicable to the facts of the

case. The first Appellate Court in essence accepted that Article

109 was applicable, which provided for a period of 12 years to

set aside the alienation effected by a father from the date

when the alienee was in possession of the property. Though

the first Appellate court accepted that Article 109 was

applicable, yet it was held that the spirit of Article 109 is that

by taking over the possession of the land which is subject

matter of the suit the alienee inter alia gives a notice to the

persons governed by Mitakashara School of Law to agitate

their rights, if any. Otherwise, their remedy would become

barred by limitation. It was held that the starting point of

16

limitation would be somewhere in the year 1992 when he

came to know of the alienation made by the father.

Consequently, the cause of action accrued in the year 1992

when he gained knowledge about the existence and execution

of the sale deeds. Therefore, the period of 12 years as laid

down in Article 109 was to be reckoned from the year 1992

and since the suit had been filed in 1994 it is within the

period of limitation.

15. A bare perusal of the High Court's order it is seen that

the High Court proceeded on the basis that the applicable

Article is Article 65 and not Article 109. It is to be noted that

there was no issue framed about applicability of Article 65. On

the contrary, the issue framed related to the applicability of

Article 109. There was no pleading by the plaintiff about

applicability of Article 65. Even in the counter affidavit filed

before this Court in the concerned Civil Appeal, the categorical

stand is Article 110 is applicable. In para 8 of the counter

affidavit filed in Civil Appeal No.598 of 2005 it has been stated

that the suit of the respondent (plaintiff) is within time under

17

Article 110 and counting from the date of knowledge, the suit

filed is clearly within the period of limitation. The effect of

Exhibit D-11 and the deed on which the appellants placed

strong reliance has not been considered by the first Appellate

Court and it reversed the findings of the trial Court. On the

question of position relating to applicability of Article 109

there is practically no discussion by the learned counsel.

16. It is, therefore, crystal clear that the High Court

proceeded to decide the issue relating to period of limitation

by making out a new case for which there was no pleading

and even no question of law was framed.

17. The question whether the sale deed was void or voidable

has to be adjudicated in the light of principles set out by this

Court in several decisions. We shall deal with this aspect in

detail while considering the appeal relating to the gift.

18

18. In Thamma Venkata Subbamma (dead) by Lrs. V.

Thamma Rattamma and Others (1987 (3) SCC 294) it was

observed as follows:

"12. There is a long catena of decisions

holding that a gift by a coparcener of his

undivided interest in the coparcenary property

is void. It is not necessary to refer to all these

decisions Instead, we may refer to the

following statement of law in Mayne's Hindu

Law, eleventh Edn., Article 382:

"It is now equally well settled

in all the Provinces that a gift or

devise by a coparcener in a

Mitakshara family of his undivided

interest is wholly invalid....A

coparcener cannot make a gift of his

undivided interest in the family

property, movable or immovable,

either to a stranger or to a relative

except for purposes warranted by

special texts.

13. We may also refer to a passage from

Mulla's Hindu Law, fifteenth edn., Article 258,

which is as follows:

Gift of undivided interest. - (1)

According to the Mitakshara law as

19

 applied in all the States, no

coparcener can dispose of his

undivided interest in coparcenary

property by gift. Such transaction

being void altogether there is no

estoppel or other kind of personal

bar which precludes the donor

from asserting his right to recover

the transferred property. He may,

however, make a gift of his interest

with the consent of the other

coparceners.

14. It is submitted by Mr. P. P. Rao, learned

counsel appearing on behalf of the

respondents, that no reason has been given in

any of the above decisions why a coparcener is

not entitled to alienate his undivided interest

in the coparcenary property by way of gift. The

reason is, however, obvious. It has been

already stated that an individual member of

the joint Hindu family has no definite share in

the coparcenary property. By an alienation of

his undivided interest in the coparcenary

property, a coparcener cannot deprive the

other coparceners of their right to the

property. The object of this strict rule against

alienation by way of gift is to maintain the

jointness of ownership and possession of the

coparcenary property. It is true that there is

no specific textual authority prohibiting an

alienation by gift and the law in this regard

has developed gradually, but that is for the

purpose of preventing a joint Hindu family

from being disintegrated.

17. It is, however, a settled law that a

coparcenary can make a gift of his undivided

20

 interest in the coparcenary property to another

coparcener or to a stranger with the prior

consent of all other coparceners. Such a gift

would be quite legal and valid".

19. We may also refer to a passage from Mulla's Hindu Law,

Seventeenth Edn., (Article 258), which is as follows:

"Gift of undivided interest- (1)According to

Mitakshara law as applied in all the States, no

coparcener can dispose of his undivided

interest in coparenary property by gift. Such

transaction being void altogether there is no

estoppel or other kind of personal bar which

precludes the donor from asserting his right to

recover the transferred property. He may,

however, make a gift of his interest with the

consent of the other coparcener".

20. In Mayne's Hindu Law, XIV Edn. It has been noted as

follows:

"Gifts of affection- The father's power to make

gifts through affection within reasonable limits

of ancestral movable property has been fully

recognized. In Ramalinga v Narayana (1922

(49) IA 168) the Privy Council held that "the

father has undoubtedly the power under the

21

 Hindu Law of making within reasonable limits,

gifts of movable property to a daughter".

By Will- But such gifts through affection of

joint family property when they are by will, are

invalid, because the right of the coparceners

vests by survivorship at the moment of the

testator's death, and there is accordingly

nothing upon which the will can operate. In

Subbarami v. Ramamma ((1920 (43) Mad 824)

the Madras High Court held that a will made

by a Hindu father bequeathing certain family

properties for the maintenance of his wife was

invalid as against his infant son through it

would have been a proper provision if made by

him, during his lifetime. This may be in a

sense right. There is however no compelling

logic in not regarding wills "as gifts to take

effect upon death at least as to the property

which they can transfer and the persons to

whom it can be transferred". Convenience

would seem rather to point to the extension to

the sphere of Hindu Law of the general

principle of jurisprudence that what a man

can give by act inter vivos, he can give by will".

21. In view of the decision in Venkata Subbamma's case

(supra), the decision of the High Court so far the gift is

concerned, does not warrant any interference.

22

22. So far as the question whether the gift is void or voidable

much depends on the factual scenario. The distinction

between void or voidable is summarized as follows:

"De Smith, Woolf and Jowell in their treatise

Judicial Review of Administrative Action, 5th,

para 5-044, have summarized the concept of

void and voidable as follows:

"Behind the simple dichotomy of

void and voidable acts (invalid and

valid until declared to be invalid)

lurk terminological and conceptual

problems of excruciating

complexity. The problems arose

from the premise that if an act,

order or decision is ultra vires in the

sense of outside jurisdiction, it was

said to be invalid, or null and void.

If it is intra vires it was, of course,

valid. If it is flawed by an error

perpetrated within the area of

authority or jurisdiction, it was

usually said to be voidable; that is,

valid till set aside on appeal or in

the past quashed by certiorari for

error of law on the face of the

record."

23

 Clive Lewis in his work Judicial Remedies in

Public Law at p.131 has explained the

expressions "void and voidable" as follows:

"A challenge to the validity of an act

may be by direct action or by way of

collateral or indirect challenge. A

direct action is one where the

principal purpose of the action is to

establish the invalidity. This will

usually be by way of an application

for judicial review or by use of any

statutory mechanism for appeal or

review. Collateral challenges arise

when the invalidity is raised in the

course of some other proceedings,

the purpose of which is not to

establish invalidity but where

questions of validity become

relevant."

23. In Sunil Kumar and Anr. v. Ram Parkash and Ors. (AIR

1988 SC 576) it was noted in paras 23 and 24 as follows:

23. The managing member or karta has not

only the power to manage but also power to

alienate joint family property. The alienation

may be either for family necessity or for the

benefit of the estate. Such alienation would

bind the interests of all the undivided

24

members of the family whether they are adults

or minors. The oft quoted decision in this

aspect, is that of the Privy Council in

Hanuman Parshad v. Mt. Babooee, [1856] 6

M.I.A. 393. There it was observed at p. 423: (1)

"The power of the manager for an infant heir to

charge an estate not his own is, under the

Hindu law, a limited and qualified power. It

can only be exercised rightly in case of need,

or for the benefit of the estate." This case was

that of a mother, managing as guardian for an

infant heir. A father who happens to be the

manager of an undivided Hindu family

certainly has greater powers to which I will

refer a little later. Any other manager however,

is not having anything less than those stated

in the said case. Therefore, it has been

repeatedly held that the principles laid down

in that case apply equally to a father or. other

coparcener who manages the joint family

estate.

Remedies against alienations:

24. Although the power of disposition of joint

family property has been conceded to the

manager of joint Hindu family for the reasons

aforesaid, the law raises no presumption as to

the validity of his transactions. His acts could

be questioned in the Court of law. The other

members of the family have a right to have the

transaction declared void, if not justified.

When an alienation is challenged as being

unjustified or illegal it would be for the alienee

to prove that there was legal necessity in fact

or that he made proper and bona fide enquiry

as to the existence of such necessity. It would

25

 be for the alienee to prove that he did all that

was reasonable to satisfy himself as to the

existence of such necessity. If the alienation is

found to be unjustified, then it would be

declared void. Such alienations would be void

except to the extent of manager's share in

Madras, Bombay and Central Provinces. The

purchaser could get only the manager's share.

But in other provinces, the purchaser would

not get even that much. The entire alienation

would be void. [Mayne's Hindu Law 11th ed.

para 396].

24. In Sadasivam v. K. Doraisamy (AIR 1996 SC 1724) it was

found that when the father has executed sale deed in favour of

a near relative and the intention to repay debt or legal

necessity has not been proved as a sham transaction.

25. In Words and Phrases by Justice R.P. Sethi the

expression `void' and `'voidable' read as under:

"Void- Black's Law Dictionary gives the

meaning of the word "void" as having different

nuances in different connotations. One of

them is of course "null or having no legal force

or binding effect". And the other is "unable in

law, to support the purpose for which it was

intended". After referring to the nuances

between void and voidable the lexicographer

26

pointed out the following: "The word `void' in

its strictest sense, means that which has no

force and effect, is without legal efficacy, is

incapable of being enforced by law, or has no

legal or binding force, but frequently the word

is used and construed as having the more

liberal meaning of `voidable'. The word `void' is

used in statute in the sense of utterly void so

as to be incapable of ratification, and also in

the sense of voidable and resort must be had

to the rules of construction in many cases to

determine in which sense the legislature

intended to use it. An act or contract neither

wrong in itself nor against public policy, which

has been declared void by statute for the

protection or benefit of a certain party, or class

of parties, is voidable only". (Pankan Mehra

and Anr. v. State of Maharashtra and Ors.

(2000 (2) SCC 756).

Per Fazal Ali, J- The meaning of the word

"void" is stated in Black's Law Dictionary (3rd

Edn.) to be as follows:

"Null and void; ineffectual;

nugatory; having no legal force or

binding effect; unable in law to

support the purpose for which it

was intended; nugatory and

ineffectual so that nothing can cure

it; not valid". Keshavan Madhava

Menon v. State of Bombay (1951

SCR 228).

The expression "void" has several facets.

One type of void acts, transactions, decrees

are those which are wholly without

27

jurisdiction, ab initio void and for avoiding the

same no declaration is necessary, law does not

take any notice of the same and it can be

disregarded in collateral proceeding or

otherwise. Judicial Review of Administration

Action, 5th Edn., para 5-044 (See also Judicial

Remedies in Public Law at page 131;

Dhurandhar Prasad Singh v. Jai Prakash

University and Ors. (2001 (6) SCC 534)

The other type of void act, e.g. may be

transaction against a minor without being

represented by a next friend. Such a

transaction is a good transaction against the

whole world. So far as the minor is concerned,

if he decides to avoid the same and succeeds

in avoiding it by taking recourse to appropriate

preceding the transaction becomes void from

the very beginning. Another type of void act

may be one, which is not a nullity, but for

avoiding the same, a declaration has to be

made. (See Government of Orissa v Ashok

Transport Agency and Ors (2002 (9) SCC 28)

The meaning to be given to the word

"void" in Article 13 of the Constitution is no

longer res integra, for the matter stands

concluded by the majority decision of the

Court in Keshavan Madhava Menon v. The

State of Bombay (1951) SCR 228. We have to

apply the ratio decidendi in that case to the

facts of the present case. The impugned Act

was a existing law at the time when the

Constitution came into force. That existing law

imposed on the exercise of the right

guaranteed in the citizens of the India by

Article 19(1)(g) restrictions which could not be

justified as reasonable under clause (6) as it

then stood and consequently under Article 13

28

(1) that existing Law became void "to the

extent of such inconsistency". As explained in

Keshavan Madhava Menon's case (supra) the

Law became void in toto or for all purposes or

for all times or for all persons but only "to the

extent of such inconsistency", that is to say, to

the extent it became inconsistent with the

provisions of Part III which conferred the

fundamental rights on the citizens. It did not

become void independently of the existence of

the rights guaranteed by Part III. (See Bhikaji

Narain Dhakras and Ors. v. The State of

Madhya Pradesh and Anr. (1955 (2) SCR 589).

The word "void" has a relative rather than

an absolute meaning. It only conveys the idea

that the order is invalid or illegal. In

Halsbury's Laws of England, 4th Edn. (Re-

issue) Vol. 1(1) in para 26, p.31 it is stated

thus: "If an act of decision, or an order or

other instrument is invalid, it should, in

principle, be null and void for all purposes;

and it has been said that there are no degrees

of nullity. Even though such an act is wrong

and lacking in jurisdiction, however, it

subsists and remains fully effective unless and

until it is set aside by a court of competent

jurisdiction. Until its validity is challenged, its

legality is preserved". (See State of Kerala v.

M.K. Kunhikannan Nambiar Manjeri

Manikoth, Naduvil (dead) and ors. (1996 (1)

SCC 435).

"Voidable act" is that which is a good act

unless avoided, e.g. if a suit is filed for a

declaration that a document is fraudulent, it is

voidable as the apparent state of affairs is the

real state of affairs and a party who alleges

otherwise is oblige to prove it. If it is proved

29

 that the document is forged and fabricated

and a declaration to that effect is given, a

transaction becomes void from the very

beginning. There may be voidable transaction

which is required to be set aside and the same

is avoided from the day it is so set aside and

not any day prior to it. In cases, where legal

effect of a document cannot be taken away

without setting aside the same, it cannot be

treated to be void but would be obviously

voidable. Government of Orissa v. Ashok

Transport Agency and Ors. (2002 (9) SCC 28)".

26. So far as the appeal relating to Will is concerned, it is to

be noted that the Courts below including the High Court have

come to the conclusion that its execution is surrounded by

suspicious circumstances.

27. The defendants have relied upon will dated 1.8.1969

executed by Shiv Dev Singh in favour of his wife Iqbal Kaur.

Will Ex.D-1 is sought to be proved by DW-1 Sham Lal son of

Jitender Nath scribe of the Will and DW-2 Surinder Nath

Vohra, the attesting witness DW-1 Sham Lal has identified the

handwriting of his father and deposed that his father died in

30

the year 1993. DW-2 Surinder Nath Vohra has deposed that

the Will was executed by Shiv Dev Singh at Kharar in his

presence. At that time, Shiv Dev Singh was in sound disposing

mind. It has come on record that Dharam Singh, husband of

Lakhwinder Kaur daughter of Shiv Dev Singh was residing at

Chandigarh. Shiv Dev Singh used to stay with Dharam Singh

when he used to visit Chandigarh in connection with

litigation. However, the Will was not executed and registered

at Chandigarh but at Kharar. Surinder Nath Vohra is not

known to the testator but attested the Will at the asking of

Dharam Singh. Still further, in Will Exhibit D-1 there is no

reference about Rattan Singh who is none else but real son of

the testator. The first Appellate Court found that the

reasoning given by the learned trial Court that Shiv Dev Singh

gave 8 acres of land to Rattan Singh and, therefore, it was not

necessary for him to assign any reason was found to be

incorrect because the said land measuring 8 acres came to

him from his grand father as he was born after 4 daughters.

The first Appellate Court found that even if Shiv Dev Singh

had been given 8 acres, there is no reason as to why such

31

mention was not made in the Will. Consequently, the first

Appellate Court returned a finding that the execution of the

Will Exhibit D-1 is not proved and its execution is surrounded

by suspicious circumstances.

28. The finding recorded about the genuineness of the Will is

essentially factual. The Courts below have analysed the

factual position in great detail. Nothing infirm in the

conclusions could be shown by learned counsel for the

appellant.

29. In view of the aforesaid circumstances it would be proper

for the High Court to re-hear the appeal relating to

applicability of Article 129 of the Limitation Act

and to

decide the matter taking note of the factual position.

30. The other appeals are dismissed. The appeals are

accordingly disposed of.

32

 ...............................J.

(Dr. ARIJIT PASAYAT)

................................J.

(TARUN CHATTERJEE)

New Delhi,

August 5, 2008

33

advocatemmmohan

 whether the

gift in	 question had  become complete	under Section 123 of

the TP	Act? It	 is seen  from the recitals of the gift deed

that Motilal  Gopalji gifted the property to the respondent.

In other  words, It  was a  conditional gift.  There  is  no

recital of  acceptance nor is there any evidence in proof of

acceptance. Similarly,	he had	specifically stated that the

property would	remain in  his possession till he was alive.

Thereafter, the	 gifted property  would become	his property

and he	was entitled  to collect mesne profits in respect of

the existing  rooms  throughout	 his  life.  The  gift	deed

conferred only	limited right upon the respondent-donee. The

gift was  to become  operative after  the death of the donor

and he was  to be entitled to have the right to transfer the

property absolutely  by way  of gift or he would be entitled

to collect the mesne profits. It would thus be seen that the

donor had  executed a conditional gift deed and retained the

possession and	enjoyment of  the property  during his	life

time. The  recitals in	the cancellation  deed is consistent

with the  recitals in the gift deed. He had expressly stated

that the respondent had cheated him and he had not fulfilled

the  conditions	  subject  to	which  there   was  an	oral

understanding between  them. Consequently, he mentioned that

the conditional	 gift given  to him  was cancelled.  He also

mentioned that	the possession	and enjoyment  remained with

him during  his life  time. He	stated, "I  have to  execute

immediately this  deed of  cancelling the  conditional	gift

deed between  us. Therefore  I hereby cancel the conditional

gift deed 15-5-65 of Rs.9000/- in words rupees nine thousand

presented at the Serial no. 2153 on 15-5-65 in the office of

the Sub-Registrar  Baroda for  registration. Therefore,	 the

said conditional gift deed dated 15-5-65 is hereby cancelled

and meaningless. The property under the conditional gift has

not been and is not to be transferred in your name.: Thus he

expressly made	it clear  that he  did	not  hand  over	 the

possession  to	the  respondent	 nor  did  the	gift  become

complete during	 the life  time of  the donor. Thus the gift

had  become   ineffective  and	 inoperative.  It  was	duly

cancelled. The question then is: whether the appellant would

get the	 right to  the property?  It is	 not in dispute that

after the  cancellation deed  dated June  9, 1965 came to be

executed, duly	putting an  end to the conditional gift deed

dated May  15, 1965,  he executed  his last  will on May 17,

1965, and died two days thereafter.advocatemmmohan

whether the authorized agent should not be granted permission to appear on behalf of the complainants as he was not enrolled as an Advocate « advocatemmmohan

whether the authorized agent should not be granted permission to appear on behalf of the complainants as he was not enrolled as an Advocate « advocatemmmohan

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. « advocatemmmohan

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. « advocatemmmohan

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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