V. TULASAMMA & ORS. v. V. SESHA REDDI (DEAD) BY L.RS.

Citation: [1977] 3 S.C.R. 261; 1977 INSC 91

Court: Supreme Court of India

Bench: P.N. BHAGWATI , A.C. GUPTA, S. MURTAZA FAZAL ALI

Judgment date: 1977-03-17

Case summary

1977 INSC 91. Supreme Court of India judgment dated 1977-03-17. V. TULASAMMA & ORS. v. V. SESHA REDDI (DEAD) BY L.RS. Read the judgment and case details on...

Judgment text

262 SUPREME COURT REPORTS (1977] 3 S. C. R. • V. TULASAMMA & ORS. v. V. SESHA REDD! (DEAD) BY L. Rs. March 17, 1977 • (P. N. BHAGWATI, A. C. GUPTA AND S. MURTAZA FAZAL ALI, JJ. J Hindu Succession Act, 1956-S. 14(1) and (2)-Scope of. Section 14 ( ! ) of the Hindu Succession Act, 1956 proyides that "any property possessed by a female Hindu! whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and \llOt as limited owner}' According to the explanation to this sub-section the term "property'' includes both movable and immovable property acquired by a female Hindu in: Heu of maintenance or arrears of maintenance or in any other manner whatsoever. Sub-section (2) provides that nothing in sub-s. (! ) shall apply to any property acquired by way of gift or under a will or any other instrument which prescribes a restricted estate in such property. At the time of his death, the appellant's.

husband, who was the1 brother of the respondent, lived in a state of jointness with the respondent. On her husband's death the appellant filed a petition for maintenance. The respondent entered into a ·compromise with her, one of the terms of which was that the . appellant should enjoy during her life time certain properties given tOI her and on her death tbooe properties should revert to the respondent. The appellant sold some of the properties. The respondent sought a declaration that under the terms of the compromise the appellant's interest, which was a limited one, could not be enlarged into a~ absolute interest enabling her to sell the proper- . ties. The District Munsiff decreed the suit. On appeal, the District Judge held that by virtue of the provisions of the 1956-Act, the appellant had acquired an absolute interest in the properties and that s. 14(2) had no application to the case because the compromise was an instrument in recognition of_ a pre-existing right.

The High Court. on the other hand, held that the compromise was an instrument contemplated by s. 14(2) and the appellant could not get an absolute interest, under s. 14(1); and that since her husband died even before the Hindu Women's Right to Property Act, 1937 came into force, she could not be said 10 have any pre-existing right because she had got the right for the first time under the compromise. Allowing the appea1, (Per Bhagwati and Gupta, JJ) HELD : Since the properties were acquired by the appellant under the compromise in lieu or satisfaction of her right to rnaintainance it is s. 14(1) and not •. 14(2) which would be applicable. The appellant must be deemed to have • become fuJJ owner of the properties notwithstanding that the compromise pres· cribed a limited. interest in the properties. [274 C-D] l.

Under the Sastric Hindri ,Law a widow has a right to be maintiiined out of joint family prope·rtY and this right would ripen into a charge if the \l/idoW took the necessary steps for having her maintenance ascertained and specifi· cally charged on the joint famiJy property and even if no specific charge were created, this right would be enforceable against joint family property i. 11. the hands of a volunteer or a purchaser taking it with notice of her claim. The right of the widow to 1 be maintailled is not a jus in rem, since it does not give any interest in the joint family property but it is jus ad ren1. When specific property is aJlotted to the widow in Jieu of her claim for mainfenance, the a11otment would be in satisfaction of her jus ad rem, namely, the rh~ht tO be maintained out of the joint family property. It would not be a grant for the first time without any pre-existing right in the widow. The widow would be getting the J? fOperty in.

virtue of her pre-existing right, the instrument giving the property being merely a document effectuating such pre-existing right. [273 A·Cl 2(a) Section 14(1) is large in its amplitude and covers every kind of acquisition of property by: a female Hindu including acquisition in lieu of maintenance. Where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become tho full owner of the property. [268 G] (b) The words "any property" are large enough to cover any and every kind of property but in order to expand the reach and ambit of the section anJ. 1nake it all-comprehensive, the Legislature has enacted the explanition. [268 BJ / ( c) Whatever be the kind of property movable or immovalile and whichever be· the mode of acquisition, it would be· covered by sub-s.

( 1), the object of the Legislature being to wiye out the disabilities from which a Hindu female suffered in regard to ownership of property under the old Sastric Law, tOI abridge the stringent provisions against proprietary rights and to recognise her status as an independent and absolute owner of property. [268 D] (d) In Gummalapura Taggina Matada Kottun1slviimi v. Setra Veeravi1a [1959] Supp. I SCR 968, this Court construed the word• "possessed of"" in a broad sense and in their widest connotation to mean as "the state of owning or having in one's hand or power" which need not be actual or physical possession or personal occupation of the property by the Hindu female, but may be possession in law. It may be actual or constructive or in any other form recognised by law. [268 E-F] (e) Sub-section (2)~ which is in the nature· of a proviso to sub-s. (1), excepts certain kinds of acquisition of property by a Hindu female fron1 the operation of sub-s. (I).

[269 Bl (f) Sub-seetion (2), must be read in the context of sub-s. (1) to leave as large a scope for operation as. possible to sub-s. (1). So read, it must be confined to cases where property is acquired by a female Hindu for the fi~t time as a grant without any pre-existing right under a gift, will, instrument, decree. order or award, the terms of which prescribe a restricted estate in the property. [269 HJ (g) The legislative· intendment in enacting sub-s. (2) \Vas that this sub-section s. hould be applicable only to cases where the acquisition of property is n1ade by a Ilindu female for the first time without any pre-existing right. Where, ho\vever, property is acquired by a Hindu female at. a partition or in lieu of her right toi maintenance it is fn virtue of a _pre-existing right and such acquisition f. VOUld not_ b_e within the. scope and ambit of sub-s. (2) even if the instrument tllotting the property prescribes a restricted estate in the property.

Where property is acquire<;! by a Hindu female under an instrument in virtue of a pre-existing right such as a right to obtain property on partition or a right to maintenance and under the law as it stood prior to the enactment of the Act, she should have no m·ore than limited interest in the property a provision in the instrument giving her limited interest in the property would be merely by way of record or recognition of the true legal position and the restriction on-her ¥1. terest being a disability imposed by law would be wiped out awl ht:r limited • interest would be enlarged under sub-s. (1). [270 D; 272 A-Bl In the instant case the appellant claimed maintenance out of the ioint family properties in the hands of her deceased husband's brother, and the claim was decreed and in execution of the decree the respondent entered into a com-pron1ise and allotted properties tO her in lieu of her claim for maintenance.

The appellant must in the circumstances be deemed to have become full owner of the properties notwithstanding that the compromise prescribed a limited interest for her in the properties. It is sub-s. (1) and not sub-s. (2) of s. 14 \vhich must be helct to be applicable on these facts. S. S. Munna Laf v. S. S. Rajkun1ar, [1962] Supp. 3 SCR 418 GurnmaTapura Teggina Matada Kotturaswami v. Setra Verrayva [1959] Supp. 1" SCR 96& Mangal Sb11? f1 v. Ratno, AIR 1967 SC 1786 Badri Pershad v. Sn1t. Kan~o Devi V. TULASAMMA v. V. SESHA REDD! 263 [1970] 2 SCR 95 Nirmal Chand v. Vidya Wanti (dead) by her Legal represen· tatives. C. A. No. 609' of 1965, decided on January 21, 1969, Rani Bai v. Shd Yadunandan Ram, [1969] 3 SCR 789 referred to. B. B. Patil, v. Gangabai, AIR J972 Born. 16, Sumeshwar Misra v. Swami Nath Tiwari AIR 1970 Pat. 348, Reddayya v. Varapula Venkatar~iu AIR 1965 A. P. 66, Lakshmi Devi v. Shankar Jha, AIR 1%7 Mad. 429, N. Venkanagouda v. Hanamangouda, AIR 1972 Mys. 286, Smt.

Sharbati Devi v. Pt. Hiralal AIR 1964 Pb. 114, Sesadhar Chandra Dev. v. Smt. Tara Sundari Dasi, AIR. 1962 Cal. 438, Saraswathi Ammal v. Anantha Shenoi, AIR 1966 Ker. 66 nnd Kunii l'homman v. Meenakshi, ! LR [1970] 2 Ker. 45 approved. Gurunadham v, Sundaraiulu, /LR [1968] 1 Mad. 467 Sentlumam v. Subramania, ! LR [1967] I Mad. 68, S. Kachapalaya Gurukkal v. V. Subramani Gurukkal, AIR 1972 Mad. 279 Shiva Puian 11. ai v. Jamune Missir, ! LR [1947] Pat. 1118 Gopisetti Kondaiah v. Gunda Subbrayudu, ! LR [1968] A. P. 621, Ram Jag Missir v. The Director of Consolidation, U. P. AIR 1975 All. 151 and Aiab Singh v. Ram Singh AIR 1959 J&K 92 not approved. (per Fazal Ali, J concurring) The High Court was in error in holding that the appellant would have only a limited interest and in setting aside the alienations made by her.

The compromise by which the properties were· allotted to her in lieu of her mairitenance were merely in recognition of her pre-existing right of maintenance and, therefore, her case would be taken out of the ambit of s. 14(2) and would fall withins. 14(1) read with the Explanation thereto. [311 GJ The incidents and characteristics of a Hindu woman's right to maintenance are: (i) that a Hindu womm's right to maintena·nce is a personal obligation so far as the husband is concerned, and, it is his duty to maintain her even if he has no property. If the husband has property then the right of the widow to n1aintenance becomes an equitable charge on his property and any person v. /ho suCteeds _to the property carries with it the legal obligation to maintain the widow.

[286 DJ (ii) though the widow's right to maintenance is not a right to property but it is a pre-existing right in_ property, that is, it is a jus ad reni and not jus in rem and it cannot be enforced by the· widow who can get a charge created for the maintenance on the property either by an agreement or by obtaining a decree from the civil court. [286 E] (iii) that the right of maintenance is a matter of moment ~ is of such importan. ce that even if the joint property is sold and the purchaser has notice of the widow's right to maintenance, the purchaser is legally bound to provide for her maintenance. [286 F] (iv) that the right to maintenance is a pre-existing right which existed in the Hindu law long before the passing of the Act of. 1937 or the Act of 1946, and is, therefore, a pre-existing right.

[286 G] • (v) that the right to maintenance flows from the social and temporal relationship between the husband and the wife b~ virtue of which the wife becomes a sort of co-owner in the property of her husband, though her co-ownership fs of ,a Eubordinate nature. [286 H] (vi) that where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchases the same is tn a position to make due arrangementS for her maintenance [287 A] Digest of Hindu Law, Vol. II, pp. 121, 123 and 243 by Colebrooke. II Hindu Law by Gopal Chandra Sarkar Sastri, p. 533. Treatise on Hindu Law & Usage by Mayne, 11th edn. pp. 684, 813, 816, 822, Hindu Law by Molla, p. 591. J1larayan Rao Ramchandra Pant v. Ramabai, L. R. 6 I. A. , 114, Lakshman Ramchandra Joshi & anr. v. Satyabhamabai, J. L. R. 2 Born. 494, Narbadabai v. Mahadeo Narayan, Kashinath Narayan and Shamabai, I. L. R. 5 Bom.

99, Mst. Dan Kaur v. Mst. Sar/a Devi, L. R. 73 I. A. 208, Pratapmull Agarwal/a v. Dhanabati Bibi, L. R. 63 I. A. 33, Rani Bai v. Shri Yadunandan Ram &: anr. [1969] 3 S. C. R. 789, Sheo Dayal Tewaree v. Judoonath Tewaree (1898] 9 W. R. 61, Srinath Das v. Prabodh Chunder Das, 11 C. L. J. 580, Hemangini Dasi v. --- Kedarnath Kundu Chowdhry l. L. R. 16 Cal. 758. K. V. Thangavdu v. The Court of Words, Madras [1946] 2 M. L. J. 143, Sarojinidevi v. Subrahmanyam J. L. R. 1945 Mad. 61, Jayanti Subbiah v. Alamelu Mangamma I. L. R. 27 Mad. 45 and Ye/lawa v. Bhimangavda J. L. R. 18 Born. 452 referred to. An examination of the decisions of this Court establishes the following principles of law: (i) that the provisions of s. 14 of the 1956 Act must be liberally construed in order to advance the object of the Act which is to enlarge the limited inte. rest possessed by a Hindu widow which was in consonance with Lhe changing temper of the times; [295A] (ii) it is manifestly clear that sub-s. (2) of s.

14 does not refer to any transfer which merely recognises a prHxistin_g right without creating or conferring a ne;v title on the widow. This was clearly held by this Court in Badri Pershad's case. [295B] (iii) that the Act of 1956 has made revolutionary and far-reaching changes in the Hindu society and every attempt should be made to carry out the spirit of the Act which has undoubtedly supplied a long felt need and tried to do away with the invidious distinction between a Hindu male and female in matters of intestate succession. ( I295C] (iv) that sub-s. , (2) of s. 14 is merely a proviso to sub-s. (I) of s. 14 and has to be interpreted as a proviso and not in a manner so as to destroy the effect of the main provision. I295D] Thus on a conspectus of the Shastric Hindu Law, the provisions of the 1956- Act and the decisions of this Court the following conclusions emerge: 1.

A Hindu female's right to maintenance is not an empty formality or an illusory claim but is a tangible right against property which flows from spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right n1ay not be a right to property but is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is a pre-existing right so that any transfer de. claring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights. [310 BC] 2. Section 14(1) and the Explanation thereto have been.

couched in· the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956-Act and promote the socio-economic • ends sought to be achieved by this long needed legislation. [3 l OD] 3. Section 14(2) is in the nature of a proviso and has a field of its own without interfering with the operation of s. 14(1) materially. The proviso should not be construed in a . manner so as to destroy the effect of the main provision or the protection granted by s. 14(1) or in a way so as to become totally inconsistent with the main provision~ [310 E] 4. Section 14(2) applies to instruments, decrees, awards, gifts etc. , which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, dedare or recognise· pre-existing rights. In such cases a restricted estate in favour of a female is legally permissible and s. 14(1) will not operate v.

TULASAMMA v. v. SESHA REDD! (Fazal Ali,]. ) 265 in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as to a claim to maintenance .. or partition or share to, which the female· is entitled, the sub-section has absolutely no application and the female's limited interest would automatically be enlarged into an absolute -one by force of s. 14(1) and the restrictions placed, if any, under the document ·would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrum:erit is taken . out of the ambit of sub-s. (2) and would be governed by s. 14(1) despite any ' restrictions placed on the powers of the transferee. [310F-G] ~- The use of express terms like "property acquired by a female Hindu at ·partition", "or in lieu of maintenance", "or arrears of maintenance" etc. , in the Explanation to s·. 14(1) clearly makes sub-s.

(2) inapplicable to these categories which have been expressly excepted from the operation of sub-s. (2). f310H] 6. The words "possessed by" in s. 14(1) aro of the widest amplitude· and include th~ state of owning a property even though the owner is not in actual or _physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956-Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of s. 14(1) she would get absolute interest in the property. It is equally well-settled' tha. t the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title. [311 A-Bl 7. That the words "restricted estate" used ins. 14(2) are wider than limited interest as indicated_in s.

14(1) and they include not only limited interest but a]s() any other kind of limitation that may be placed on the transferee. [311 CJ In the instant case, the properties in dispute were allotted to the appellant under a compromise certified by the Court. Secondly, the appellant had taken only a life interest in the properties and there was a clear restriction prohibiting her from alienating the properties. Thirdly, despite these restrictions, she continued to be in possession of the properties till the alienations \Vhich she had )l made in 1960 and 1961 were after she had acquired an absolute interest in the properties. Snu. Naraini Devi v. Smt. Ramo Devi & ors [1976] 1 S. C. C. 574 overruled. S. S. Munnalal v. S. S. Rajkumar [1962] Supp. 3 S. C. R. 418; Eramma v. Verrupanna [1966] 2 S. C. R. 626; Mangal Singh v. Smt. Rattno [1967] 3 S. C. R. 454; Sukhram & anr. v. Gauri Shankar & anr. [1968] 1' S. C. R. 476; Badri Parshad v. Smt. Kanso Devi [1970] 2 S. C. R. 95 and Nirmal Chand v.

Vidya Want/ (dead) by her Legal Representative C. A. 609 of 1966 decided on January 21, 1969 referred to. B. B. Patil v. Gangabai A. LR. 1972 Born. 16; Gaddam Reddayya v. • Varapu/a Venkataraju & Anr. A. LR. 1965 A. P. 66; Sumi! shwar Mishra v. Swami Nath Tiwari A. I. R. 1970 pat. 348; H. Venkanagouda v. Hansun1angouda A. LR. 1972 Mys. 286; Smt. Sharbati Devi v. Pt. Hirala/ & Anr. A. l. R. 1964 Punjab 114; Sasadhar Chandra Dev v. Snit. Tara Sundari Desi A. LR. 1962 Cal. 438, approved. Nareyan Patra v. Tara Patrani [1970] 36 Cuttack Law Times-A. l. R. 1970 Drissa 131; Shiva Pujan Rai & Ors. v. Jamuna Missir & Ors. I. L. R. 47 Pat. 1118; Gopisetti Kondaiah v. Gunda Subbarayudu I. LR. [1968] A. P. 621; Ram Jag Misir v. The Director of Consolidation, U. P. AIR 1975 All. 151; Ajab Singh & Ors. v. Ram Singh & Ors. A. I. R. 1959 J, & K. 92; S11r1U1dham v. Sundararaju/u I. LR. [1968] 1 Mad. 567; Kachapalaya Gurukkal v. V. Subramania Gurukkal A. LR. 1972, Mad. 279 not approved.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1360 of 1968. (Appeal by Special Leave from the Judgment and Order dated 22-11-1967 of the Andhra Pradesh High Court in Second Appeal No. 804/64). T. S. Krishnamurthi Iyer, R. K. Pillai and R. Vasudev Pillai, for the appellants. T. V. S. Narasimhachari, for the respondents. The Judgment of P. N. Bhagwati and A. C. Gupta, JJ. was deliver-ed by Bhagwati, J. S. Murtaza Fazal Ali, J. gave a separate opinion. BHAGWATI, J. -We have had the advantage of reading the judgment prepared by our learned brother S. Murtaza Fazal Ali and we agree with the conclusion reached by him in that judgment but we would prefer to give our own reasons. The facts giving rise to the· appeal are set out clearly and ·succinctly in the judgment of our learned brother and we do not think it necessary to reiterate them.

The short question that arises for determination in thi's appeal is as to whether it is sub-section (1) or sub-section (2) of section 14 of the Hindu Succession Act, 1956 that applies where property is given to a Hindu female in lieu of maintenance under an instrument which in so many terms restricts the nature of the interest given to her in the property. If sub-section (1) applies, then the limitations on the nature of her interest are wiped out and she becomes the full owner of the property, while on the other hand, if sub-section (2) governs such a case, her limited interest in the property is not enlarged and she continues to have the restricted estate prescribed by the fostrument. The question is of some complexity and it has evoked wide diversity of judicial opinion not only amongst the different High Courts but also within some of the High Courts themselves.

It is indeed unfor-tunate that though it became evident as far back as 1967 that sub-sections (1) and (2) of section 14 were presenting serious difficulties of construction in cases where property was received by a Hindu female in lieu of maintenance and the instrument granting such property prescribed a restricted estate for her in the property and divergence of judicial opinion was creating a situation which might well be described as chaotic, robbing the law of that modicum of certainty which if must always possess in order to guide the affairs of • men. the legislature, for all these years, did not care to step in to remove the constructional dilemma facing the courts and adopted an attitude of indifference and inaction, untroubled and unmoved by the large number of cases on this point encumbering the files of different courts in the country, when by the simple expedient of an amendment, it could have silenced judicial conflict and put an end to needless litigation.

This is a classic instance of a statutory provision which, by reason of its inapt draftsmanship, has created endless confusion for litigants and proved a paradise for lawyers. It illustrates forcibly the need of an anthority or body to be set up by the Government or the Legislature which would constantly keep in touch with the adjudicatory V. TULASAMMA v. v. SESHA REDD! (Bhagwati, J. ) 267 a~thorities in the country as also with the legal profession and imme-dmtely respond by making recommendations for suitable amendments whenever it is found that a particular statutory provision is, by reason of mapt language or unhappy draftsmanship, creating difficulty of ·',,I construction or is otherwise inadequate or defective or is not well conceived and is consequently counter-productive of the resultit was intended to achieve.

If there is a close inter-action between the adjudicatory wing of the State and a dynamic and ever alert authority or body which responds swiftly to the draw-backs and deficiencies in the law in action, much of the time and money, which is at present ex-pended in fruitless litigation, would be saved and law would achieve a certain amount of clarity, certainty and simplicity which alone can make it easily intelligible to the people. Since. the determination of the question in the appeal turns on the true interpretation to be placed on sub-section (2) read in the context of sub-section (1) of section 14 of the Hindu Succession Act, 1956, it would be convenient at this stage to set out both tbe ·sub-sections of that section which read as follows : "14(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 I> limited owner. 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 whatever, and also any such property held by her as stridharas immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) sh~ll 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.

" Prior to the enactment of 'section 14, the Hindu law, as it was then in operation, restricted the nature of the interest of a Hindu female in property acquired by her and even as regards the nature of this restricted interest, there was great diversity of doctrine on the subject. The Legislature, by enacting sub-'section ( 1) of section 14, intended, as pointed by this Court in S. S. Munna Lal v. S. S. Raikumar(') "to convert the interest which a Hindu female has in property, however, restricted the nature of that interest under the Sastric Hindu law may be, into absolute estate". This Court pointed out that the Hindu Succession Act, 1956 is a codifying enactment and has made far-reaching . H changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance (! ) [19621 Supp. 3 S. C. R.

418, and sweeps away the traditional limitations on her powers of disposition which were regarded under the Hindu law as inherent in her estate". Sub-section (1) of section 14, is wide in its scope and ambit and uses language of great amplitude. It says that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. The words "any property" are, even with- IB .

out any amplification, large enough to cover any and every kind of property, but in order to expand the reach and ambit of the section and make it all-comprehensive, the Legislature has enacted an explanation which says that property would include "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 whatever, and also any such property held by her as stridhana immediately before the commencement" of A-· the Act.

Whatever be the kind of property, movable or immovable, and whichever be the mode of acquisition, it would be covered by sub-section ( l) of section 14, the object of the Legislature being to wipe out the disabilities from which a Hindu female suffered in regard to ownership of property under the old Sastric law, to abridge the stringent provisiO! lls against proprietary rights which were often regarded as evidence of her perpetual tutelege and to recongnize her status as an independent and absolute owner of property. This Court ha·s also in a series of decisions given a most expansive interpretation to the language of sub-section ( 1) of section 14 with a view to advancing the social purpose of the legislation and as part of that process, construed the word's 'possessed or also in a broad sense and in their widest connotation. It was pointed out by this Court in Gummalepura Taggina Matada Kotturuswami v.

Setra Veeravva(') that the words 'possessed of mean "the state of owning or having in one's hand or power". It need not be actual or physical possession or personal occupation Of the property by the Hindu female, but may be possession in law. It may be actual or constructive or in any form recognized by law. Ela-iF borating the concept, this Court pointed out in Mangal Singh v. 2 Rattno( ) that the section covers all cases of property owned by a female Hindu although she may not be in actual, physical or constructive possession of the property, provided of course, that she has not parted with her rights and is capable of obtaining po·ssession of the property.

It will, therefore, be seen that sub-section (1) of section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property. Now, sub-section (2) of section 14 provides that nothing contained in sub-section ( 1) shall apply to any property acquirea by way of gift or under a will or any other instrument or under a decree or order (l) [19591 Supp. I S. C. R. 968. (2) A. LR. 1967 S. C. 1786. V. TULASAMMA v. SESHA REDD! (Bhagwati, J. ) 269 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 restncted estate in such property.

This provision is more in the nature of a proviso or exception to sub-section ( 1) and it was regarded as such by this Court in Badri Pershad v. Smt. Kanso Devi('). It excepts certain kinds of acquisition of property by a Hindu female from the operation of sub-section (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bring-ing about change in the social and economic position of WQmen in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in sub-section (I). It cannot be interpreted in a manner which would rob sub-section ( 1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub-section ( 1). Tlle language of sub-section (2) is apparently wide to include acquisition of property by a Hindu female under an i!

lstrument or a decree or order or award where the instrument, decree, order or award prescribes a restricted estate for her in the property and this would apparently cover a case where property is given to a Hindu female at a partition or in lieu of maintenance and the instrument, decree, order or award giving such property prescribes limited interest for her in the property.

But that would virtually emasculate sub-section ( 1), for in that event, a large number of cases where property is given to a Hindu female at a partition or in lieu of maintenance under an instrument, order or award would be excluded from the operation of the beneficent provision enacted in sub-section (1), since in most of such case's, where property is allotted to the Hindu female prior to the enactment of the Act, there would be a provision, in consonance with the old Sastric law then prevailing, prescribing limited interest in the property and where property is given to the Hindu female subsequent to the enactment of the Act, it would be the easiest thing for the dominant male to provide that the Hindu female shall have only a restricted interest in the property and thus make a mockery of sub-section (1).

The Explanation to sub-section (I) which includes within the scope of that sub-section property acquired by a female Hindu at a partition or in lieu of maintenance would also be rendered meaningless, because there would hardly be a few cases where the instrument, decree, order or award giving property to a Hindu female at a partition or in lieu of maintenance would not contain a provision prescribing restricted estate in the property. The social purpose of the law would be frus-trated and the re(ormist zeal underlying the statutory provision would • be chilled. That surely could never have been the intention of the Legislature in enacting sub-sectfon (2). It is an elementary rule of construction that no provision of a statute should be construed in isola-tion but it should be construed witb reference to the context and in the light of other provisions of the statute so as, as far as possible, to make a consistent enactment of the whole statute.

Sub-section (2) must, therefore, be read in the context of sub-section ( 1) so as to leave as large a scope for operation as possible to sub-section (1) and so read, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing (1) (1970] 2 S. C. R. 95. right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. This constructional approach finds support in the decision in Badri Prasad's case (supra) where this Court observed that sub-sectipn (2) "can come into operation only if acquisition in any of the methods enacted therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of the property". It may also be noted that when the Hindu Succession Bill 1954, which ultimately culminated into the Act, was referred to a Joint Committee of the Rajya Sabha, clause 15(2) of the Draft Bill, corre'!

Ponding to the present sub-section (2) of section 14, referred only to acquisition of property by a Hindu female under gift or will and it was subsequently that the other modes or acquisition were added so as to include acquisition of property under an instrument, decree, order or award. This circumstance would also seem to indicate that the legislative intendment was that sub-section (2) should be applicable only to cases where acquisition of property is made by a Hindu female for the first time without any pre-existing right-a kind of acquisition akin to one under gilt or will. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of sub-section (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property.

This line of approach fn the construction of sub-section (2) of section 14 is amply borne out by the trend of judicial decisions in this Court. We may in this connection refer to the decision in Badri Parasad's case (supra). The facts in that case were that one Gajju Mal owning self-acquired properties died in 1947 leaving five sons and a widow. On August 3, 1950, one Tulsi Ram Seth was appoint-ed by the parties as an arbitrator for resolving certain differences which had ari'sen relating to partition of the properties left by Gujju Mal. The arbitrator made his award on December 31, 1950 and under clause 6 of the award, the widow was awarded certain properties and it was expressly stated in the award that she would have a widow's estate in the properties awarded to her.

While the widow was in possession of the properties, the Act came into force and tne question arose whether on the coming into force of the Act, she became full owner of the properties under sub-section ( 1) or her estate in the properties remained a restricted one under sub-section (2) of section 14. This Court held that although the award gave a restricted estate to the widow in the propertie's allotted to her, it was sub-section (1) which applied and not sub-section (2), because inter alia the properties given to her under the award were on the basis of a pre-existing right which she had as an heir ci her husband under the Hindu Women's Right to Property Act, 1937 and not as a new grant made for the first time. So also in Nirmal Chand v. Vidya Wanti (dead) 1 by her leJ? al representatives( ), there was a regular partition deed made on December 3, 1945 between Amin chand, a coparcener and (1) C. A. No. 609 of 1965, decided on January 21, 1969. v. TULASAMMA v. SESHA REDD!

(Bhagwati, J. ) 271 Subhrai Bai, the widow of a deceased coparcener, under which a certain property was allotted to Subhrai Bai and it was specifically provided in the partition deed that Subhrai Bai would be entitled only to the user of the property and she would have no right to alienate it in any manner but would only have a life interest. Subhrai Bai died in 1957 subsequent to the coming into force of the Act after making a will b~queathing the property in favour of her daughter Vidyawati. The right of Subhrai Bai to bequeath the property by will was challenged on the ground that she had only a limited interest in the property and her case was covered by sub-section (2) and not sub-section (1).

This contention wa's negatived and it was held by this Court that though it was true that the instrument of partition prescribed only limited interest for Subhrai Bai in the property, that was in re~ognition of the legal position which then prevailed and hence it did not bring her case within the exception contained in sub-section (2) of section 14. This Court observed : • "If Subhrai Bai was entitled to a share in her husband's properties then the suit properties must be held to have been allotted to her in accordance with law. As the law tlien stood she had only a life interest in the properties taken by her. Therefore the recital in the deed in question that she would have only a life interest in the properties allotted to her share is merely recording the true legal position. Hence it is· not possible to conclude that the properties in question were given to her subject to the condition of her enjoying it for her life time.

Therefore the trial court as well as the first Appellate Court were right in holding that the facts of the case do not fall withins. 14(2) of the Hindu Succession Act, 1955. " It will be seen from these observations that even though the property was acquired by Subhrai Bai under the instrument of partition, which gave only a limited interest to her in the property, this Court held that the case fell within sub-section (1) and not sub-section (2). The reason obviously was that the property was given to Subhrai Bai in virtue of a pre-existing right inhering in her and when the instrument of partition provided that s_he would only have a limited interest in the property, it merely provided for something which even otherwise would have been the legal position under the law as it then stood.

It is only when property is acquired by a Hindu female as a new grant for the first time and the instrument, decree, order or award giving the property prescribes the terms on which it is to be held by the Hindu female, namely, as a restricted owner, that sub-section (2) comes into play arid excludes the applicability of sub-section (1). The object of sub-section (2), as pointed out by this Court in Badri Persad' s case (supra) while quoting with approval the observations made by the Madras High COjllrt in Rangaswami Naicker v. Chi1111ammal('), is "only to remove the disability of women imposed by law and not to interfere with ~ontraets, grants or decree etc. by virtue of which a woman's right was restricted" and. therefore, where property is acquired by a Hindu female under the instrument in virtue of a pre-existing (I) A. LR. 1964 Mad. 387.

right, such as a right to obtaiu property ou partitiou or a right to maiuteuauce aud uuder the law as it stood priqr to the enactmeut of the Act, she would have uo more thau limited interest iu the property, a provisiou iu the iustrumeut giviug her limited iuter~st iu the property would be merely by way of record or recoguitiou of the true legal posi· tiou aud the restrictiou ou her iuterest beiug a "disability imposed by law" would be wiped out aud her limited iuterest would be eularged > uuder sub-'sectiou ( 1). But where property is acquired by a Hindu female uuder au iustrumeun for the first time without auy pre-existiug. right solely by virtue of the iustrumeut, she must hold it on the tenns ou which it is giveu to her aud if what is giveu to her is a restricted , estate, it would uot be enlarged by reasou of sub-sectiou (2). The controversy before us, therefore, boils dowu to the narrow questiou whether in the present case the properties were acquired by . the apoe!

-lant uuder the compromise iu virtue of a pre-existiug nght or ! hey were acquired for the first time as a grant owing its origiu to the compromise alone aud to uothing else. Now, let us cousider how the properties iu questiou came to be . ' ~ acquired by the appellaut uuder the compromise. The appellant claimed maiuteuauce out of the joiut family properties iu the hands 'of the r_espondeut who was her deceased husbaud's brother. The claim was decreed iu favour of the appellaut aud iu execution of the decree for maiuteuance, the compromise was arrived at between the parties allotting the properties in question to the appellant for her )I maiutenance and giving her limited interest in such properties. Si nee the properties were allotted to the appellaut in lieu of her claim for maintenance, it becomes uecessary to consider the nature of the nght which a Hiudu widow has to be maintaiued out of joint family estate.

It fa settled law that a widow is entitled to maintenance out of her deceased husbaud's estate, irrespective whether that estate may be it< the hands of his male issue or it may be iu the hands of his coparceners. The joint family estate in which her deceased husbaud had a share is liable for her maiutenauce and she has a right to be maintained out of the joint family properties and though, as pointed out 1 by this Court in Rani Bai v. Shri Yadunanden Ram,( ) her claim for maintenance is not a charge upon any joint family property uutil she has got her maintenauce determiued and made a specific charge either by agreement or a decree or order of a court, her right is "not liable to be defeated except by transfer to a bona fide purchaser for value without uotice of her claim or even with uotice of the claim uu\ess the transfer was made with the intention of defeating her ri~ht".

The widow can for the purpose of her maintenance follow the joint family property "into the hands of any oue who takes it as a volunteer or with uotice of her having set up a claim for maintenance". The courts ha\! \! even gone to the length of taking the view that where widow is in possession of any specific property for the purpose of her maintenance, a purchaser buying with uotice of her claim is not entitled to possession of that property without first securing proper 2 m')ointeuance for her, vide Rachawa & Ors. v. Shiva:ranappa( ) cited with approval iu Ranibai's case (supra). It is, therefore, clear (I) [19691 3 S. C. R. 789. (2) I. L. R. 18 Born. 679. v. TULASAMMA v. V. SESHA REDD! (Bhagwati, J.

) 2 7 3 that under the Sastric Hindn Law a widow has a right to be maintained out of joint family property and this right would ripen fufo' a' charge if the widow takes the necessary steps for having her maintenance ascertained and specifically charged in the joint family property and even if no specific charge is created, this right would be enforceable against ioint family property in the hands of a volunteer or a purchaser taking it with notice of her claim. The right of the widow to be maintained is of course not a jus in rem, since it does not give · her any interest in the joint family property but it is certainly jus ad rem, i. e. , a right against the joint family prop~rty. Therefore, when specific property is allotted to the widow in lieu of her claim for maintenance, the allotment would be in satisfaction of her jus ad rem, namely, the right to be maintained out of the joint family property.

It would not be a grant for the first time without any pre-existing right in the widow. The widow would be getting the property in virtue of . her pre-existing right, the instrument giving the property being merely a document effectuating such pre-existing right and not making a grant of the property to her for the first time without any antecedent right or title. There is also another consideration which is very relevant to this issue and it is that, even if the instrument were silent as to the nature of the interest given to the widow in the property and did not, in so many terms, prescribe that she would have a limited interest, she would have no more than a limited interest in the property Ul)der the Hindu Jaw as it stood prior to the enactment of the Act and hence a provision in the instrument prescribing that she would have only a limited interest in.

the property would be, to quote the word's of this Court in Nirmal Chand's case (snpra), "merely recording the true legal position" and that would not attract the applicability of sub-section (2) but would be governed by sub-section ( 1) of section 14. The conclusion is, therefore, inescapable that where property is allotted to a. widow under an instrument, decree, order or award prescribes a restricted estate for her in the property and sub-section (2) of section 14 would have no application in such a case. ' We firid that there are several High Courts which have taken the same view which we are taking in the present case. We may men- 1 tion only a few of those decisions, namely, B. B. Patil v. Gangabai( ), 2 Sumeshwar Misra v. Swami Nath Tiwari,( ) Reddayya v. Varapula Venkataraju,(') Lakshmi Devi v. Shankar Jha(4), N. Venkanegouda v. Hanemangouda,(') Smf. Sharbati Devi v. Pt. Hiralal,( 6 ) Sesadhar 7 Chandra Dev v. Smt. Tara Sundari Dasi,( ) Saraswathi Ammal v.

8 9 Anantha Shenoi( ) and Kunji Thomman v. Meenakshi( ). It is (! )A. LR. (1972) Bom. 16 (2) A. LR. (1970) Pat. 348. (3) A. LR. (1965) . A. P. 66 (4) A. LR. (1967) Mad. 429. (5) A. LR. (1972) Mys. 286. (6) A. LR. (1964) Pub. 114. (7) A. LR. (1962) cal. 438. (8) A. LR. (1966) Ker. 56. (9) I. L. R. (1970) 2 Ker. 45, 3- 436SCI/77 not necessary to refer to these decisions since we have ourselves discussed the question of construction of sub-sections (1) and (2) of section 14 on Principle and pointed out what in our view is the correct construction of these provisions. We may only mention that _:,,. the judgment of Palekar, J. , as he then was, in B. B. Patil v. Gangabai (supra) is a well reasoned iudgment and it has our full approval. • The contrary view taken in Gurunadham v. Sundarajulu,(') Santhanam v. Subramania,(2) S. Kachapalava Gurukkal v. V. Subramania 3 4 Gurukkal( ), Shiva Pujan Rai v. Jamuna Missir,( ) Gopisetti Kondaiah v. Gunda Subbarayudu('), Ram Jag Misir v.

The Director of 7 Consolidation, U. P. (") and Ajab Singh v. Ram Singh ( ) does not, in our opinion, represent the correct law on the subject and these cases must be held to be wrongly decided. In the circumstances, we reach the conclusion that since in the present case the properties in question were acquired by the appellant under the compromise in lieu or satisfaction of her right of maintenance, it is sub-section (1) and not sub-section (2) of section 14 which would be applicable and hence the appellant must be deemed to have become full owner of the properties notwithstanding that the compromise prescribed a limited interest for her in his properties. We accordingly allow the appeal, set aside the judgment and decree of the High Court and restore that of the District Judge, Nellore. The result is that the suit will stand dismissed but with no order as to costs. ! ":: FAzAL ALI, J.

This is a defendant's appeal by special leave against the judgment of the High Court of Andhra Pradesh dated November 22, 1967 and arises in the following circumstances. . , Venkatasubba Reddy, husband of appellant No. 1 Vaddeboyina Tulasamma-hereinafter to be referred to as 'Tnlasamma'-died in the ~ year 1931 in a state of jointness with his step brother V. Sesha Reddy and left behind Tulasamma as his widow. On October 11, 1944 the appellant Tulasamma filed a petition for mainteruii:ice in forma pauperis against the respondent in the Court of the District Munsif, Nellore. This application 'Was set e:xi parte on January 13, 1945 but subsequently th~tition was registered as a suit and an ex parte decree was pass against the r~ndent on June 29, l 946. On October 1, 1946 the respondent fil an interlocutory application for recording a compromise alleged to have been arrived at between the parties out of Court on April 9, 1945.

The appellant Tulasamma • opposed this application which was ultimately dismissed on October 16, 1946. An appeal filed by the respondent to the District Judge, Nellore was also dismissed. Thereafter Tulasamma put the decree in --- (I) I. L. R. (1968) 1 Mad. 487. (2) I. L. R. (1%7) 1 Mad. 68. (3) A. I. R. (1972) Mad. 279. (4) I. L. R. (1947) Pat. 1118. (5) I. L. R. (1968) A. P. 621. (6) A. I. R. (1975) All. 151. (7) A. 1. R. (1969) J & K 9! v. TULASAMMA v. v. SESHA REDD! (Fazal Ali, J. ) 275 execution and at the execution stage the parties appear to have arrived A. at a settlement out of Court which was certified by the Executing Court on July 30, 1949 under O. XXI r. 2 of the Code of Civil Pro-cedure. Under the compromise the appellant Tulasamma was allotted the. Schedule properties, but was to enjoy only a limited interest therein with no power of alienation at all. According to the tenns of the compromise the properties were to revert to the plaintiff after the death of Tulasamma.

Subsequently Tulasamma continued to remain R in possession of th<:l properties even after coming into force of the Hindu Succession Act, 1956-hereinafter to be referred to as 'the 1956 Act, or 'the Act of 1956'. By two registered deeds dated April 12, 1960 and May 26, 1961, the appellant leased out some of the properties to defendants 2 & 3 by the first deed and sold some of the properties to defendant 4 by the second deed. The plaintiff/resIJon-dent filed a suit on July 31, 1961 before the District Munsiff, Nellore for a declaration that the alienation made by the widow Tulasamma were not binding on the plaintiff and could remain valid only till the life-time of the widow. The basis of the action; filed by the plaintiff was that as the appellant Tulasamma had got a restricted estate only under the tenns of the compromise her interest could not be enlarged into an absolute interest by the provisions of the 1956 Act in view of s. 14(2) of the said Act.

The suit was contested by the appellant Tulasamma who denied the allegations made in the plaint and averred that by virtue of the provisions of thf11956 Act she had become the full owner of the prOperties with absolute right of alienation and the respondent had no locus standi to file the present suit. The learned Munsiff decreed the suit of the plaintiff holding that the appell1mt Tulasan1ma got merely a limited interest in the properties which could be enjoyed during her lifetime and that the alienations were not binding on the reversioner. Tulasamma then filed an appeal before the District Judge Nellore, who reversed the finding of the Trial Court, allowed the appeal and dismissed the plaintiff's snit holding that the appellant Tulasamma had acquired an absolute interest in the properties by virtne of the provisions 0£ the 1956 Act. The learned Judge further held that sub-s. (2) of s.

14 had no application to the present case, because the compromise was an instrument iu recognition of a pre-existing right. The plaintiff/respandent went up in second appeal to the High Court against the judgment of the District Judge. The plea of the plaintiff/respondent appears to have found favour with the High Court which held that the case of the appellant was clearly covered by s. 14 (2) of the Hindu Succession Act and as the compromise was an instrument as contemplated bys. 14(2) of the 1956 Act Tulasamma could not get an absolute interest under s. 14(1) of the Act. The High Court further held that by virtue 0£ the compromise the appellant Tufasamma got title to the properties for the first time and it was not a question of recognising a pre-existing right which she had none in view of the fact that her husband had died even before the Hindu Women's Right to Property Act, 1937. We might further add that the facts narrated above have not been disputed by counsel for the parties.

The appeal has been argued only on the snb~tantial questions of law which tum upon the interpretation of sub-ss. (1) & (2) of s. 14 of the Hindn Succession Act, 1956. It is common ground that in this case as also in the other connected appeals, the properties in suit were allotted under a compromise or an instrument in lieu of maintenance. It is also admitted that the appellant Tulasamma was in possession of .. >. -the properties at the time when the 1956 Act came into force. Finally it is also not disputed that the compromise did purport to confer only a limited interest on the widow restricting completely her power of alienation. We have now to apply the law on the facts mentioned above. Similar points were involved in the other two appeals Nos. 135 of 1973 and 126 of 1972. We have heard all the three appeals , together and in all these appeals counsel for the parti.

es have confined their arguments only to the questions of law without disputing the findings of fact arrived at by the Courts below. Thus the two points that fall for determination in this appeal may be stated thus : ( 1) whether the instrument of compromise under which the properties were given to the appellant Tulasamma before the 1956 Act in lieu of maintenance falls within s. 14(1) or is covered by s. 14(2) of the 1956, Act and (2) Whether a Hindu widow has a right to property in lieu of her maintenance, and if such a right is conferred on her subsequently by way of maintenance it would amount to mere recognition of a pre-existing right or a conferment of new title so as to fall squarely within s. 14(2) of the 1956 Act. There appears to be serious divergence of iudicial opinion on the subject and the High Courts have taken contrary views on this point.

Some High Courts, particularly, Bombay, Punjab, Calcutta and Patna have veered round to the view that a right of maintenance claimed by a Hindu widow is a pre-existing right and any instrument or document or transaction by which the properties are allotted to· the widow in lieu of her maintenance would on\y be recognition of a pre-existing right and would not confer any new title on the window. Following this line of reasoning the aforesaid High Courts have held that the properties allotted to the Hindu widow even though they conferred a limited interest would fall clearly within ! he ambit of s. 14(1) of the 1956 Act by virtue o~ which the limited interest would be enlarged inio an absolute interest on the coming into force of the 1956 Act.

On the other hand the Orissa, Allahabad, Madras and Andhra Pradesh High Courts have tak;en a contrary view and have held that as the Hindu widow's right tQ maintenance is not a right to property, property allotted to her in lieu of maintenance confers on her a right or title to the property for 'the first time and therefore such conferment is protected bys. 14(2) of 'the 1956 Act and is not covered bys. 14(1). Unfortunately, howe~er, there is no decision of this Court which is directly in point, though there are some decisions which tend to support the view taken by 1the Bombay High Court. v. TULASAMMA v. v. SESHA REDDI (Fazal Ali, !. ) 2 7 7 Before, however, resolving this important dispute it may be necessary to consider the real legal nature of the incident of a Hindu widow's right to maintenance. In order to determine this factor we have to look to the concept of a ffindu marriage.

Under the Shastric Hindu Law, a marriage, unlike a marriage under the Mohammadan Law which is purely contractual in nature, is a sacrament-a religious ceremony which results in asacred and a holy union of man and wife by virtue of which the wife is completely transplanted in the house-hold of her husband and takes a new birth as a partner of her husband becoming a part and parcel of the! body of the husband. To-a Hindu wife her husband is her God and her life becomes one of selfless ser-vice and unstinted devotion and profound dedication to her husband. She not only shares the life and love the joys and sorrows, the troubles and tribulations of her husband but becomes an integral part of her husband's life and activities. Colebrooke in his book 'Digest of Hindu Law' Vol. II describeS'th~ status of wife at p.

158 thus: "A wife is considered as half the body of her husband, equally sharing the fruit of pure and impure acts; whether she ascend "the pile after him, or survive for the benefit of her husband, she is a faithful wife. " This being the position after marriage, it is manifest that the law enjoins a corresponding duty on the husband to maintain his wife and look after her comforts and to provide her food and raiments. It is well settled that under the ffindu1Law the husband has got a personal obligation to maintain his wife and if he is possessed of properties R then his wife is entitled as of right to be maintained out of such properties. The claim of a Hindu widow to be maintained is not an empty formality which is to be . exercised as a matter of concession or indulgence, grace or gratis or generosity but is a valuable spiritual and moral right which flows from the spiritual and temporal relationship of the husband and wife.

As the wife is in a serue a part of the body of her husband, she becomes co-owner of the proPerty of her husband p though in a subordinate sense. Although the right of maintenance does not per se create a legal charge on the proPerty of her husband, yet the wife can enforce this right by moving the Court for passing a decree for maintenance by creating a charge. This right is available only so long as the wife continues to be chaste. Thus the position is that the right of maintenance may amount to a legal charge if such a ,charge is created either by anl agreement between t. he parties or by decree. There are a number of authorities which have taken the view that even if the property is transferred and the tramferee takes the property with notice of the right of the widow to be maintained out of the property, the purchaser takes the obligation to maintain the widow out of the property purchased and the wife or. w!

dow can follow the pro~erty in the hands of the purchaser for the limited purpose of her maintenance. We shall, however, deal with these authorities a little later. Colebrooke in his 'Digest of Hindu L,iw', Vol. II, quotes the Maha-bharata at p. 121 thus : _ . "Where females are honoured, there the deities are pleased; but where they are unhonoirred, there all religious acts become fruitless. " · . This clearly illustrates the high position which is bestoweil on ;Hindu . women, by the Shastric Law. Again Colebfooke in his book Vol. II at p.

123, while describing the circumstances under which the maintenance is to be given to the wife, quotes Manu thus : "MANU :--Should a man have bnsiness abroad, Jet him assure a fit maintenance to his wife, and then reside for a time in a foreign country; since a wife, even thouglt virtuous, may be tempted to act amiss, if she be distressed by want of subsistence : · While her husband, having settled her maintenance, · resides abroad, let her continue firm in religious austerities; but if he leave no support, Jet her subsist by spinning and other blameless arts. " This extract clearly shows that there is a legal obligation on the part of the husband to make arrangements for his wife's due maintenance even if he goes abroad for business purposes. Colebrooke again quotes Yajnawalkya at p. 243 of his book Vol. thus: "When the father makes an equal partition among his .

sons, his wives must have equal shares with them, if they have received no wealth either from their lord or from his father. If he makes an equal partition among his sons by his own choice, he must give equal shares to such of his wives also_ as bave·no·maJe issue. '~- · ' . _ F. This shows that when a partition is effected, the Hindu Law enjoins that the wife must get an equal share with the sons, thus reinforcing the important character of the right of maintenance which a Hindu wife or widow pOJSesses undet the Hindu Law. . ·. Similarly Gopalchandra Sarkiir Sastri dealing with the nature and incidents of the Hindu widow's right to maintenance observes in his treatise 'Hindu Law' at p. 533 thus : · "When the husband is alive, he is personally liable for the . ----wife's maintenance, which is also a legal charge upon, his property, this charge being a legal incident of her marital co-ownership in all her husband's property ......

But after his death, his widow's right of maintenance becomes limited to his· estate, which, when it passes to any other heir, is charged with the same. . . . . . . . . There cannot be any doubt that under Hindu law the wife's or widow's maintenance is a legal charge on the husband's estate; but the ·courts appear to hold, v. TULASAMMA v. v. ~ESHA REDD! (Fazal Ali, !. ) 2 79 in consequence o! the proper materials not being placed before them, that it is not so by itself, but is merely a claim against the husband's heir, or an equitable charge on his estate; hence the husband's debts are held to have priority, unless it is made a charge on the property by a decree. " The view of the author appears to be that . the Courts hold that the right of maintenance of a widow does not amount to a legal charge and this is so because proper materials werenot placed before the Courts.

In other words, the author seems to indicate that the original Hindu Law contained clear provisions that the right of, maintenance amounts to a charge on tj:ie property of her husband and the obligation runs with the property so that any person who inherits the property also takes upon the obligation to maintain the widow. Sastri quotes from the original texts various extracts regarding the nature and extent o~ the right of maintenance of the Hindu women some of which may be extracted thus : "The support of the group of persons who should be maintained, is the approved means of attaining heaven, but hell is the man's portion if they suffer; therefore he should carefully maintain them. · The father, the mother, the Guru (an elderly relation worthy of respect), a wife, an offspring, poor dependants, a guest, and a religious mendicant are declared to be the group of persons who are to be maintained. -Manu, cited in Sn-krishna's commentary on the Dayabhaga, ii, 23.

It is declared by' Manu that the aged mother and father, the chaste wife, and an infant child must be maintained even by doing a hundred misdeeds,-Manu cited in the Mitakshara while dealing with gifts. " The last extract clearly shows the imperative nature of the duty imposed on the owner of the property to maintain wife, aged mother, father etc. even at the cost of perpetrating a hundred misdeeds. · Similarly Sastri in his book quotes Yajnavalkya at p. 523 thus "Property other than what is required for the maintenance of the family may be given.

"' The learned author highlights the importance of the right of maintenance as being a charge on the property of the \husband and observes as follows : "The ancestral immovable property is the hereditary source of maintenance of the members of the family, and the same is charged with the liability of supporting its members, all of whom acquire a right to such property from the moment they become members of the family, by virtue of which they are at least entitled to maintenance out of the same. Such •, property cannot be sold or given away except for the· support of the family; a small portion of the same may be alien- . ated, if not incompatible with the support of the family. There &s no difference between the two schools as regards the view that the ancestral property is charged with the maintenance of the members of the family, and that no alienation can be made, which will 'prejudicially affect the support of the group of persons who ought to be maintained.

Hence heirs are bound to maintain those whom the last holder Was bound to maintain. " The author further points out that under the Mitakshara law the <laugher-in-law does, with her husband, acquire a right to the ancestral property, since her marriage, but, she becomes her husband's co-owner in a subordinate sense, and the principal legal incident of this ownership is the right to maintenance, which cannot be defeated by gift or devise made by the holder of such property, Similar observations have been made by the learned author at p. 528 of the book which may ~- extracted thus· : ' "According to both the schools, the lawfully wedded. wife acquires from the moment of her marriage a right to the property belonging to the husband at the time and also to any property that may.

subsequently be acquired by him, so that she becomes a co-owner of the husband, though her right is not co-equal to that of the husband, but a subordinate one, owing to her disability founded on her status of perpetual or life long tutelege or dependence. This right of the wife to maintenance from her husband is not lost even if the husband renounce Hinduism. This right subsists even after the husband's death al-. though her husband's right as distinguished from hers Illl! Y pass by suvivorship or by succession to. sons or even to collaterals; these simply step into the position of her husband, and she is required by Hindu law to live under their guardianship after her husband's death. " Finally it is pointed out by the . learned author at p.

529 of the Book that the right which a woman acquires to her husband's property subsists even after his death and observed thus : "According to both the schools, the right which a woman acquires to her husband's property subsists after his death, whether his interest passes by succession or by survivorship to the male issue or any other person, and that this right does not depend upon the widow's not possessing other means of support. " V. TULASAMMA v. v. SESHA REDD! (Fazal Ali, J. ) 2 8 I Summarising the nature of the liability of the husband to maintain his wife, the learned author observed as follows at p. 533 of his Book : "When the husband is alive, he is personally liable for the wife's maintenance, which is also a legal charge /upon his property, this charge being a legal incident of her marital ' co-0wnership in all her husband's property. . . . . . . .

But after 'his death, his widow's right of maintenance becomes limited to his estate, which, when it passes to any other heir, is charged with the same ......... There cannot be any doubt that under Hindu law the Wife's or widow's maintenance is a legal charge on the husband's estate; but ilie Courts appear to hold, in consequence of the proper materials not being placed before them, that it is not so by itself, but is merely a claim against the husband's heir, or an equitable charge on his estate; hence the husband's debts are held to have priority, unless it is made a charge on the property by a decree. " To sump up, therefore, according to· Sastri's interpretation of Shast1ic Hindu Law the right to maintenance possessed by a Hindu widow is a very important right which amounts to a charge on the property of her husband which continues to the successor of the property and the wife is regarded as a sort of co-owner of the husband's property though in a subordinate sense, i. e.

the wife has no dominion over the property. Similarly Mayne in his "Treatise on Hindu Law & Usage", 11th Edn. , has traced the history and origin of the right of maintenance of a Hindu woman which according to him arises from the theory of an undivided family where the head bf the family, is bound to maintain the members including their wives and their children. The. learned author observes thus : (p. 813). "The importance and extent of the right of maintenance necessarily arises from the theory of au undivided family. The head of such a family is bound to maintain its members, their wives and their Children, to perform their ceremonies and to defray the expenses of their marriages;" Again at p. 816 para 684 the author stresses the fact that the maintenance of a wife is a matter of personal obligation on the part of the husband and observes thus : .

~· "The maintenance of a wife, aged parents and a minor son is a matter of personal obligation arising from the very existence of the relationship and quite independent of the possession of any property, ancestral or acquired. . . . . . . . 'It is declared by Mann that the aged mother and father, the chaste wife and an infant child must be maintained even by doing a hundred misdeeds. " . ___ ... )-- Again it has been observed at p. 818 para 687 "The maintenance of a wife by her husband is, of course, a matter of personal obligation, which attaches from the moment of marriage. " · • The author points out at p. 821 paragraph 689 that even after the comi~g into force of the Hindu Women's Right to Property Act, , 1937 which confers upon the widow a right of succession in respect of the non-agricultural property, she is still entitled to maintenance from the family property.

The author observes thus : ''It cannot, therefore, be said that the reason of the right has ceased to exist and the right is gone. It was accordingly held that the widow of a deceased coparcener is still entitled to maintenance notwithstanding her right under the Act to a share in the non-agricultural part of the family estate. " Furthermore, the anthor cites the passage of Narada cited in Smriti Chandrika regarding which there is no dispute. The saying runs thus : "Whichever wife (patni) becomes a widow and continues virtuous, she is entitled to be provided with food and rai-ment. " At p. 822 para 690 the author points out that the right of a widow to be maintained is taken over even by the heirs of the husband who succeed to his property either by inheritance or by survivorship. In this connection the following observations are made : "She is entitled to be maintained where her husband's separate property is taken by his male issue.

Where, at the time of his death, he was a coparcener she is entitled to maintenance as against those who take her husband's share by survivorship," The Hindu law is so jealous in guarding the interests of Hindu women that the obligation for maintaining the Hindu wbinen falls even on the King when he takes the estate by escheat or by forfeiture, Similarly Mulla in his book "Hindu Law", 14th Edu. , describes the incidents and characteristics of Hindu wife's right to maintenance 'G and observes thus at p. 597 : "A wife is entitled to be maintained by her husband, whether he possesses property or not. When a man with his eyes open marries a girl accustomed to a certain style of living, he undertakes the obligation of maintaining her in that style. The maintenance of a wife by her husband is a matter of personal obligation arising from the very existence of the relationship, and quite indepeudent of the possession by the husband of any property, ancestral or self-acquired. " v.

TULASAMMA v. v. SESHA REDD! (Fazal Ali, !. ) 283 We might further mention that the Hindu women's right to maintenance finally received statutory recognition and the entire law on the subject was consolidated and codified by the Hindu Married Women's Right to Separate Maintenance and Residence Act, 19~6-hereinafter to be referred to as 'the Act of 1946'-which came into force on April 23, 1946. Thus there appea1s to be complete unanimity of the various ~chools of Hindu law on the important incidents and indicia of the Hindu women's right to maintenance which lras now received statutory recognition and which only shows that the right to maintenance though not an indefeasible right to property is undoubtedly a pre-existing right. We shall now refer to some of the authorities which have dealt with thiJ aspect of the matter. In Narayan Rao Ramchandra Pant v.

Ramabai('), the Judicial Committee pointed out that the widow's right to maintenance arises from the common 1'aw which developed from time to time. Justice West of the Bombay High Court appears to have entered into a very elaborate discussion of the entire law on the subject in Lakshman Ramchandra Joshi and Anr. v. Satyabhamabai(") and observed as follows: "These several authorities, no doubt, afford, in combi-nation, a strong support to the proposition that a widow's maintenance, especially as against the sons, the a charge on the estate, a right in re in the fullest sense adhering to the property, into whatever ! rands it may pass. " These observations were reiterated in a later case in Narbadabai v, 3 Mahadeo Narayan, Kashinath Narayan and Shamabai( ). The observations of West J. , in Lakshman Ramchandra Joshi and Anr's case (supra) were fully 'approved by the Judicial Committee in Mst. Dan Kuer v. Mst.

Sar/a Devi('), where it was observed : "Rut, apart from this circumstance, the judgment of West J. , whose dissertations on Hindu Law must always com-mand great esteem, contains an exposition of the law on this point, and the rose is therefore rightly regarded as a leading authority on the question. In the course of his judgment that learned judge quotes with approval the remark~ of Phear J. , in Srimati Bhagabati v. Kanailal Mitter-(1872) 8 Ben. L. R. 225-that "as against one who lras taken the property • as heir, the widow has a right to have a proper sum for her maintenance ascertained and made a charge on the property in his hands. She may 'also, doubtless, follow the property for this purpose into the hands of anyone who takes it as a volunteer, or with notice of her having set up a claim for maintenance against the heir" and that "when the property (1) L. R. 6 I. A. 114. (2) l. L. R. 2 Born. 494. (3) I. L. R. 5 Born. 99. (4) L. R. 73 I. A. 208.

passed into the hands of a bona fide pnrchaser without notice, it cannot be affected by anything short of an already existing proprietary right; it cannot be subject to that which is not already a specific charge, or which does not contain all the clements necessary for its ripening into a specific charge. " . Summarising the entire position the Privy Council enunciated the law thus: "The true rule of Hindu law in such matters would appear to be as follows : Two obligations confront a join~t Hindu family. (! ) The obligation to pay the debts (for instance, of the father) binding on the family; and (2) the moral obligation "to provide maintenance to the widows of the family.

" The latter obligation would, under certain circumstances, ripen into a legal obligation, as, for instance, when a charge is created on specific property of the fumily either by agreement or a decree of the court; that, so long as neither of these two obligations has taken the form of a charge on the family property, the obligation to pay the binding debts will have precedence (as, for instance, in the course of the administration of the estate) over mere claims of a female member's maintenance, but, if either of these two obligations assumes the shape of a charge, it would tab precedence over the other. " In Pratapmull Aga1Wal/a v. Dhanabati Bibi,(') the Judicial Committee pointed out that while a mother may not be the owner of her share until partition is made and has no pre-exi. Sting right with regard to the share in the property, but she has a pre-existing right for maintenance.

This Court also has made similar observations in a large number of cases regarding the nature and extent of the Hindu women's right to maintenance. In Rani Bai v. Sh~i Yadunandan Ram & A nr, (') this Court, while dealing with a situation where a widow claimed the right of maintenance but refused to hand over possession of the property until she secured her proper maintenance, observed as follows : "It cannot be disputed that the appellant who is the widow of a pre-deceased son of Jangi Jogi was entitled to receive maintenance so long as she did not re-marry out of the estate of her father-in-Jaw. Although her claim for maintenance wa·s not a charge upon the estate until it had been fixed and specificaily charged thereupon her right was not liable to be defeated except by transfer to a bona fide purchaser for value without notice of a claim or even with notice of 'l claim unless the transfer was made wiith the intention of defeating her right.

The courts in India have taken the view that where a widow is in posse,;sion of a specific property for the purpose of her maintenance a purchaser buying with notice of her claim is not ·entitled to (I) L. R. 63 I. A. 33. (2) [1969] 3 S. C. R. 789. V. TULASAMMA v. v. SESHA REDDI (Fazal Ali, J. ) 285 possession of that property without first securing proper maintenance for her : [vide Rachawa & others v. Shiva-yogappa-I. L. R. 18 Born. 679] ...... In the present case it is difficult to understand how the appellant could be deprived of the possession of properties by a trespasser. Moreover she was presumably in possession of these properties in lieu of her right of maintenance and could not be deprived of them even by Jugli Bai without first securing proper maintenance for her out of the aforesaid properties. " In Sheo Dyal Tewaree v.

Judoonath Tewaree,(') the Calcutta ltigh Court stressed the fact that although the widow may not be the owner of a share but she had a pre-existing right of maintenance. Elucidating the nature and extent of a right of a Hindu wife to maintenance, the Calcutta High Court pointed out in S~inath Das v. Probodh ChulU! er Das(') than the right of maintenance is really identified with the husband's property right though of a subordinate nature. 3 In Hemangini Dasi v. Kedarnath Kundu Chowdhury( ) the Privy Council held that if the estate remained joint and undivided the maintenance of the mother remained a charge on the whole estate and that any share that the widow took in the property which was equal to ihe share of a son was really in lieu of maintenance for which the e5tate was liable. The position has been very succinctly stated and meticulously analysed by a decision of the Madras High Court in K. V. _Thanga-velu v.

The Court of Wards, Madras,(') where, dealing with the entire history of the matter and relying on various original texts of the Hindu jurists, the Madras High Court pointed out that a cogent ground for preferring the widow's claim is to be found in her quali-fied or subordinate co-ownership in the husband's property declared by the Mitakshara. The Court referred to verse 52 of Vyavahara-dhaya (chapter II) where the Mitakshara refers to Afjastamba's Dharmasutra as follows : "From marriage arises also jointness ( sahatwam) in the holding of property ( dravyaparagraphestiu) . " 5 In an earlier case Sarojnidevi v. Subrahmanyam,( ) the Madras High Court held that even after the coming into force of the Hindu Women's Right to Property Act, 1937, which did not apply to agricultural lands, the right of the Hindu widow to maintenance ~ · stood in tact and the widow was entitled to maintenance notwithstanding her right under the Act to a share in the non-agricultnral part of the family estate.

To the same effect is an earlier decision (1) (1868) 9 W. R. 61. (2) 11 C. L. J. 580. (3) I. L. R. 16 cal. 768. (4) (1946) 2 M. L. J. 143. (5) I. L. R. 1945 Mad. 61. of the Madras High Court in Jayanti Subbiah v. Alamelu Mangamma(') where the High Court pointed out that under the Hindu Law the maintenance of a wife by her husband is a matter of personal obligation arising from the very existence of her relationship and quite independent of the possession by the husband of any property ancestral or self-acquired. We fully agree with this exposition of the law which is supported by a large number of authorities as discussed above. 2 In Yella'wa v. Bhimangavda( ), the Bombay High Court was of the view that even the heir of the husband's property could not be all

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