THATHA GURUNADHAM CHETTI Vs. THATHA NAVANEETHAMMA

JUDGEMENT

(1.) THIS second appeal involves the question, of the applicability of S. 14 of the hindu Succession Act, of 1956, to the facts of the case. One Guruviah Chetti died about the year 1932, prior to the Hindu Women's Right to Property Act. 1937 leaving surviving his widow Thatha Muniamma and four sons, Venkatachalam chetti, Gurunathan Chetti, Narasimhalu Chetti and Bangaru Chetti. The four sons partitioned their family properties in 1946 under the deed of partition Ex. A. 2 dated 11-12-1946. The family properties were divided into five Schedules. A to E. Schedules B to E were taken, one by each son and the A Schedule which contained four items was allotted to the widow of the deceased, their mother, for her maintenance. Under the terms of the allotment, the widow had no power of alienations of any kind and had only the right to enjoy for her life the income from the properties after meeting the taxes. The four items allotted to the widow for her lifetime were also the subject of division between the four sons, the deed particularizing the items respectively to be taken by the sons after her lifetime. Under this provision, the suit property has to go to the share of the son. Venkatachalam Chetti on her death. The said Venkatachalam Chetti died issue less in 1954, and the plaintiff in the suit out of which this second appeal arises is his widow. The first defendant in the suit is the widow of Guruviah Chetti and mother of Venkatachalam Chetti and his brothers. After the death of her son, Venkatachalam Chetti, by a registered deed, Ex. B. 1 dated 6-12-1956, she conveyed the suit property which was to go to the share of venkatachalam Chetti on her death, to her son Gurunathan Chetti, the second defendant, in the suit. It is in these circumstances, that the widow of venkatachalam Chetti filed the suit for a declaration of the invalidity of the conveyance of the suit property by the first defendant in favour of the second defendant, contending that the first defendant had no power of alienation of the suit property beyond her lifetime and that the plaintiff as the heir of venkatachalam Chetti had the vested remainder in the property after the lifetime of the first defendant. It was also pleaded for the plaintiff that the deed of sale was a sham and nominal transaction brought about to defraud the plaintiff of her right in the property. In defence, it was inter alia contended that Venkatachalm's interest in the property was contingent on his surviving the widow and that, in any event, the widow's right in the property had become absolute by reason of the hindu Succession Act 1956. The first defendant died pending the suit. No one was brought on record as her legal representative, and the defence was continued by the second defendant. All the contentions put forward in defence were overruled and it was further held that the sale deed Ex. B. 1 was a sham and nominal one. It was pointed out that the first defendant got the suit property only by virtue of the partition deed with restricted rights, and that in the circumstances, there was no enlargement of her estate under the Hindu Succession Act. For the second defendant, who appealed as the sole defendant, the only question mooted in appeal was whether on the date of partition Ex. A. 2, the properties allotted to the first defendant vested in her the plaintiff's husband having only a contingent interest. As may be expected, in the face of the clear recitals in the deed of partition, the question was answered against the appellant and the learned counsel for the appellant has not re-agitated before me this aspect of the defence, in my view quite properly.

(2.) MR. K. R. Krishnaswami Aiyar, the learned counsel appearing for the appellant, however, strongly contended that the property having been placed in the possession of the widow for maintenance under S. 14 of the Hindu Succession Act, it became her absolute property. Learned counsel relied on the definition of property given in the explanation to sub-sec (1) of S. 14. The explanation provides:

(3.) NO doubt property given to a female in lieu of maintenance either before or after the Act, becomes her absolute property under sub-sec. (1) But sub-sec (2)has engrafted an exception and while considering sub-sec (1), sub-sec (2) cannot be overlooked. Where the acquisition by the female of the property is in any of the modes prescribed in sub-sec (2) and the acquisition is itself of a restricted estate, such an estate is not enlarged. Sub-sec (2) makes it clear that it is not the intention of the Legislature to grant full ownership to a Hindu female who gets the property under a gift, will, or other instrument and the instrument itself in express terms gives her only a limited right or restricted estate in the property. All the clauses of S. 14 must be read and interpreted one with the other, with S. 4 and with the other provisions of the Act, and thus read, clearly S. 14 is not intended to override lawful terms in contracts and bargains or bequests and gifts. Certainly, it is not and it cannot be contended that the object of S. 14 is to put a Hindu female in a better position than a Hindu male where the gift or bequest or other instrument as a matter of construction of the document confers only a restricted estate, Sec. 14 (1) of the Act only removes disabilities imposed by the personal law of the Hindus as to the quality or the extent of the estate taken by the female in certain circumstances, generally found in inherited properties, properties given to her in partition and by interpretation in properties devolving on her without specification of her estate therein. The Act is both an amending and codifying Act and in the definitions of property in sec. 14 of the Act, it will be seen included not only property in which the female hindu would have a limited estate but also properties which she would hold as full owner even before the Act. For sub-sec (2) to apply, it is an essential condition that the instrument which limits or restricts the estate should itself be the source or foundation of the female's title in the property. If she has an existing right in the property. If the instrument be it a decree or order or award, or deed on partition merely declares the pre-existing title of the Hindu woman to any particular property sub-sec (2) would not take the property out of the coverage of sub-sec (1 ). Where a female Hindu takes property under section (2), and not by virtue of any antecedents legal right or title in the property, any restriction placed on the property would have its full effect.