E S R PACKIRISAMY PILLAI Vs. VIJAYALAKSHMI

JUDGEMENT

(1.) MISHRA, J. One Sundaram Pillai executed a Will Exs. A-1 and B-1, on 14. 4. 1937, on the day the Hindu Women's Right to Property Act, 1937, came into force, disposing of his properties including the suit property, which is item 8 of A Schedule property in Ex. B-1. The relevant will recitals are as follows: "will executed this 14th day of April, 1937 by ko. Rama Sundaram Pillai, son of Ko. Ram Badra Pillai of Vadakku Pogainallur, nagapattinam Taluk, out of free will and in a sound disposing state of mind. I have become very aged. I am suffering from diabetes for some time and day-by-day I am becoming lean and weak and I have no faith that I will live long. I want to make arrangement in respect of all the movables/immovable properties owned by me and I am making this arrangement out of free will. The entire properties described in the Schedule below including "e' schedule and "p" Schedule properties and the outstandings due to me were all myself- acquired properties and I am owning them exclusively. There is no other person entitled to the same. I have my third wife Soundaraththammal. I have no other heirs. Therefore my obsequies/ceremonies shall be performed by my divided brother's son Subramaniam Pillai son of Seppayam Pillai. The 'a'Schedule property belonging to me shall be enjoyed by my third wife Soundaraththammal, without any right of alienation and shall enjoy the income therefrom. After her life time, the entirety of the A Schedule propertie s shall belong to my elder brother's son subramaniam Pillai son of Seppayam Pillai absolutely with the right of alienation and over this property nobody shall have any rights. . . . . . " Soundaraththammal, the third wife of Sundaram Pillai, who was given thus life interest with no power of alienation under the Will of her husband Sundaram Pillai, executed a will on 3. 1. 1951 as per the original of ex. B-2, and on 25. 11. 1974 as per Ex. B-3, a codicil, the combined effect being that the suit property should devolve on the defendant-appellant after the demise of Soundaraththammal. Soundaraththammal died on 5. 3. 1975. The plaintiff-respondent however filed the instant suit alleging that as per the last will and testament executed by Sundaram Pillai, he provided for the devolution of the property under the various schedules therein, provided for the life interest of his widow Soundaraththammal in respect of the A Schedule to the will comprising of 9 items including the suit item, and with regard to the other items and the other schedules in the will, gave right to others including the plaintiff. With respect to A schedule, however, Sundaram Pillai said that after Soundaraththammal's life time, the entirety of the A schedule property shall belong to his elder brother's son Subramaniam (and thereafter the plaintiff) absolutely with the right of alienation. Sundaram Pillai continued to enjoy the property till his demise on 18. 7. 1942, and after his death, Soundaraththammal had only a restricted life enjoyment of the property , and after the death of Soundaraththammal on 5. 3. 1975, the plaintiff became entitled to the property as per the terms of the will. The plaintiff-respondent thus claimed the property under the will as absolutely belonging to him after the death of the third wife of Sundaram pillai, Soundaraththammal. There were several issues and contentions before the trial court, but it pronounced on the main question whether under Sec. 14 (1) of the Hindu Succession Act, Act 30 of 1956, (hereinafter referred to as the Act), soundaraththammal became the absolute owner and thus acquired right of disposition of the properties described in the Will, Exs. A-1 and B-1, or it was a property given to her under the will and thus under Sec. 14 (2) of the Act, after her demise, Schedule A properties vested in the plaintiff, and whether disposition of a property so given to her in favour of the defendant-appellant is valid as she is the widow of Sundaram Pillai, acquired absolute interest in favour of the defendant and against the plaintiff. The plaintiff preferred an appeal in A. S. No. 1067 of 1980. He, however, died during the pendency of the appeal, and his legal representatives were brought on record. Nainar Sundaram, J. , (as he then was), who finally disposed of the appeal, however, has held as follows: 'there are certain features, which have to speak, and if I take note of them, I find that the stand expressed by the learned counsel for the defendant cannot be accepted. The first feature is, the recitals in Ex. B- 1 do not refer to any pre-existing right of Soundaraththammal against property, such as her right to maintenance, so as to say, that it was only in recognition thereof, or in confirmation and reiteration thereof, the suit property was given to her in the manner done under Ex. B-1. If we go by the express recitals in Ex. B-1, it is not possible to spell out a theory that the disposition under Ex. B-1 of the suit property in favour of Soundaraththammal, was done to confirm, endorse, declare or recognise any pre-existing right of soundaraththammal against property. It will be proper and safer to go by the express recitals found in the document itself to find out as to whether only in recognition of any pre-existing right against property the disposition could be stated to have been made. Another feature, which speaks against the case of the defendan t is that there is no pleading at all that only in recognition or confirmation or declaration of any preexisting right of soundaraththammal against property, the suit site was given to her under ex. B-1. While deciding this question, the parties are bound by their pleadings, unless the express recitals in the deed do support their cases one way or the other. Here, the express recitals do not in any way indicate that the disposition was in confirmation or reiteration of declaration of any pre-existing right of Soundaraththammal against property, such as her right to maintenance. In my view, the recitals being unambiguous and there being no pleading on the part of the defendant that the disposition under Ex. B-1 was only in confirmation, reiteration and declaration of any pre-existing right of soundaraththammal against property, there is no scope for invoking the aid of Sec. 14 (1) of the Act and on the facts of the case, the rigor of Sec. 14 (2) alone must rule. The third feature is, that even assuming that without pleadings, evidence could be let in, which proposition will certainly offend the well accepted norm in this behalf, I find that the defendant has not placed any evidence at all that the disposition of the suit site under Ex. B-1 was intended to reiterate, declare and confirm any pre-existing right of soundaraththammal against property, such as her right to maintenance.' Nainar Sundaram, J. , (as he then was) has stood by his view in spite of his attention being drawn to a judgment of this Court in Sri Mahaliamman Temple v. Vijayammal, (1983)2m. L. J. 442, for in his view, the law on the subject has been stated clearly and in detail in the judgment of the Supreme Court in v. Tulasamma v. V. Sesha Reddi, (1978)1 S. C. J. 299: (1978)1 An. W. R. (S. C.) 6: a. I. R. 1977 S. C. 1944, but on the facts of that case, that in a compromise arrived at between the parties, allotting the properties in question to a woman for her maintenance and giving her limited interest in such properties, the Supreme court held that such allotment in lieu of her maintenance was in recognition of her right to maintenance, which was a pre-existing right, and, therefore, the case of the woman would be taken out of the ambit of Sec. l4 (2) and would fall squarely within Sec. 14 (1) read with the explanation thereto, 'no material has been exposed in the case by the defendant to demonstrate that the suit property was given to Soundaraththammal in reiteration, confirmation or in declaration of any pre-existing right of her against property. Neither the recitals in Ex. B-1 nor the pleadings put forth by the defendant, nor the evidence placed by him supports such a theory.' Sundaram Pillai's will is not in question. He executed the will on the date the Hindu Women's Right to Property Act came into force. Sundaram Pillai died on 18. 7. 1942. On that day, under Sec. 3 of the Hindu Women's Right to Property Act, his widow Soundaraththammal, in the event of intestate succession, became entitled to limited interest, known as the Hindu Women's estate, and inheritance, equal to the share of her son, if there was one living at the time of her husband's death. It is, however, agreed that there was no son to inherit and/or there was no other person to share the A schedule properties in the will in the event of intestate succession to Sundaram Pillai with his widow Soundaraththammal. When the Hindu succession Act, 1956, came into force, Soundaraththammal was alive and was in possession of the A schedule properties in the will. Sec. 14 of the Act reads as follows: "14. (1) Any properly 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. &quot ; Explanation: In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance, or device, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-sec. (l) shall apply to any property acquired byway 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 of award prescribe a restricted estate in such property. &quot

(2.) IT is not in dispute before us, and it is nopossible to so dispute, that the plaintiff has got no right to the property except as reversioner and vested remainder in the event of intestate succession or under the will Ex. B-1, if the property is given to Soundaraththammal by Sundaram pillai under the will.

(3.) COMING to the facts of the case in the suit instituted by Thota Madhav Rao, the Supreme Court has said: "the courts are not giving retrospective operation to Sec. 14 (1) or to the instrument. The courts only would be applying the law to the facts found as on the date when the question arose to find whether legatee has preexisting vestige of title under law; and the nature of possession of the property held by her and whether the legatee would get the benefit of Sec. 149 (1) of the Act. There need be no express recital even in the will of the enjoyment of the property deviced under the will in lieu of maintenance as a limited owner for her life. Even if so mentioned, it would be a reflection or restatement of the law existing as in 1932 when the will was executed. The respondent, admittedly, being a widow of the testator who, under Shastric Law, was obliged to provide maintenance to his wife, and it being personal obligation, the property bequeathed was in lieu of maintenance for her life. She was in enjoyment of the property and the beneficial interest therein stood vested in her. As per existing law as in 1932 the widow as a legatee was entitled to widow's estate and she remained in possession on the date the Act came into force and was in enjoyment of the income derived therefrom for her life. No one had a right to interdict it. The restrictive covenant, therefore, does not stand an impediment to Sec. l4 (l) to have full play to extinguish the same and enlarge the limited estate of widow into an absolute ownership. The restrictions contained in the will, though falls both under sub-sec. (2)as well as sub-sec. (l), of Sec. l4 the right to maintenance being a pre-existing right over property "res ad rem" sec. l4 (l) would apply. The testamentary succession with restrictive conditions in the will was obliterated. She became an absolute owner on or after June 17, 1956. Accordingly, I have no hesitation to hold that, though the will created a restrictve covenant, See. 14 (2) does not apply. Sec. 14 (1) enlarged the widow's limited estate held by manikyamma into an absolute ownership as full owner with a right to disposition by testamentary instrument or otherwise. "