VASUDEVAN Vs. DEVAKAY AND ORS.

JUDGEMENT

(1.) The defeated first defendant in a suit for partition is the appellant. The suit property belonged to one Kalavan. The plaintiff and defendants 1 to 3 are the children of Kalavan. Defendants 4 and 5 are the children of the deceased daughter of Kalavan. The property sought to be partitioned was a property purchased by Kalavan in the year 1920. According to the plaintiff, Kalavan died intestate after the Hindu Succession Act and as such, on his death, the suit property devolved on the plaintiff and defendants and that she is entitled to 1/5 share over the same. The first defendant resisted the suit, while defendants 2 to 5 supported the plaintiff. According to the first defendant, Kalavan died on 14/04/1946, prior to the Hindu Succession Act and as such, since the parties were governed by Hindu Mitakshara Law, the suit property devolved exclusively on him, being the only son of Kalavan. The Trial Court accepted the case of the first defendant and dismissed the suit. The plaintiff took up the matter in appeal. Since the plaintiff was not able to assail the finding of the Trial Court that Kalavan died prior to the Hindu Succession Act, the contention raised by her before the Appellate Court was that on the death of Kalavan, the suit property devolved on his wife Kalikutty and the first defendant and since Kalikutty died after the Hindu Succession Act, the plaintiff, at any rate, is entitled to 1/10 share in the suit property as one of the legal representatives of Kalikutty. According to the plaintiff, Kalikutty was entitled to one half right in the suit property on the death of Kalavan as per the provisions of the Hindu Women's Rights to Property Act, 1937. The first defendant resisted the said contention of the plaintiff pointing out that being an agricultural property, the suit property is not covered by Hindu Women's Rights to Property Act, 1937. According to the first defendant, agricultural properties were brought under the purview of the said Act in the Province of Madras where the property was situated at the relevant time, only with effect from 18/12/1947 by virtue of the Madras Hindu Women's Rights to Property (Extension to Agricultural Land) Act, 1947 and since the succession opened up on the death of Kalavan on 14/04/1946 itself, Kalikutty had not acquired any right over the suit property which is admittedly an agricultural property. On an appraisal of the materials on record, the Appellate Court took the view that Kalikutty was entitled to maintenance out of the profits of the suit property and since she was also in possession of the suit property, the said right of maintenance blossomed into an absolute right by virtue of Sec. 14 of the Hindu Succession Act. Consequently, the Appellate Court reversed the decision of the Trial Court and passed a preliminary decree declaring the 1/10 share of the plaintiff over the suit property. The first defendant who is aggrieved by the said decision of the Appellate Court has thus come up in this second appeal.

(2.) After hearing the learned counsel on either side, the following question is formulated for decision in the second appeal:

(3.) The right of maintenance of a Hindu widow is not a right to property, but only a right against the property [See Vaddeboyina Tulasamma v/s. Vaddeboyina Sesha Reddi : 1977 KHC 820 : AIR 1977 SC 1944 : (1977) 3 SCC 99]. In Suraj Mal v/s. Babu Lal : AIR 1985 Del. 95, the Delhi High Court held that the provisions contained in Sec. 14 of the Hindu Succession Act would apply to property possessed by a Hindu female and to which she had some kind of title, however restricted the nature of her interest may be. It was clarified by the Delhi High Court in the said case that Sec. 14 of the Hindu Succession Act will not have any application to a case where a widow had no rights whatsoever in the properties except a right of maintenance out of the proceeds of the property. Later, in Ram Vishal v/s. Jagan Nath, (2004) 9 SCC 302, the Apex Court reiterated the aforesaid propositions holding that to come within the scope of the said Sec. of the Hindu Succession Act, the Hindu female must not only be possessed of the property but she must have acquired the property either by way of inheritance or devise, or at a partition or "in lieu of maintenance or arrears of maintenance" or by gift or her own skill or exertion or by purchase or by prescription and a mere right of maintenance without acquisition of some right in the property is not sufficient to attract the said Section. Paragraph 16 of the said judgment of the Apex Court reads thus: