SHARAD Vs. SHOBHARAM

JUDGEMENT

(1.) . Sometimes, use of inapt language due to unhappy draftsmanship creates a situation which gives rise to endless confusion amongst the litigants and occasion for conflict in the opinion of the Courts. The same is the situation in respect of the provisions of section 14 of the Hmdu Succession Act, 1958, as reproduced below:

(2.) FROM the perusal of the aforesaid section, it is apparent that sub -section (1) intends to enlarge the limited estate of a Hindu female in respect of the property posessed by her whether acquired before or after the coming into force of the Act. Sub -section (2), however, has been added in the nature of a proviso for making exceptions to the scope of sub -section (1) in respect of certain properties acquired by way of gift or under a will or any other instrument, decree or award conferring a restricted estate. By taking advantage of the language of sub section (2) which appears to be wide enough and if literally construed to include all acquisitions of property by a Hindu female under an instrument, decree or award and if sub -section (2) is construed de horse the Context and purpose of sub -section (1), it can be said that it may cover all such acquisitions whether at a partition or in lieu of maintenance if they have been recognised, incorporated in an instrument, decree or an award. In view of this, effort has -been made to contend that even if a Hindu female had acquired some property at a partition effected by a deed, decree or award and the terms of the same prescribe only a life interest in the property, she would not become the full owner by virtue of sub -section (1) because such a case was -fully Covered by the language of sub -section (2). However such a contention cannot be accepted. The reason being that if the same was accepted it would virtually emasculate sub -section (1) because: according to the aforesaid construction, a large number of cases, though governed by sub -section (1) could be excluded from the operation of the said sub -section merery for the reason that the partition at which the Hindu female got some property in limited interest happened to be effected by executing a deed or was under a decree or award. The well -settled legal position prevailing to day is that sub -section (2) has to be read in the context of sub -section (1) so as to leave as large scope for operation to sub -section (1) as possible and if sub -section (2) is so construed, it would naturally confine to cases where the property is acquired by a Hindu female for the first time by way grant under a gift, will or any other such instrument, award or decree conferring a limited estate without any pre -existing right the mere fact that any pre -existing right has been simply recognised by incorporation of the same in a deed or document or has been given effect to by an instrument, decree or award, will not take away the case beyond the scope of sub -section (1). Actually this was the controversy in the suit giving rise to t he present appeal.

(3.) THE trial Court and the lower appellate Court had taken the view that since Mst. Jankibai, being the widow of Balwantrao and the mother of defendant Nos. 2 to 5 had a pre -existing right to have a share at the time of partition, and the suit property was given to her at the partition in lieu of maintenance with life stage, she became the full owner after the commencement of the Hindu Succession Act by virtue of sub -section (1) of section 14. According to the Courts below, since it was a case of pre -existing right and the suit property was allotted to her with restricted life -interest in lieu of maintenance, and was not acquired either by way of gift, will or any other instrument, decree or award for the first time, the provisions of section (2) were not attracted and therefore accordingly the suit was dismissed.