Appeal No 1937 of 1966
96 Appeal from the judgment and order dated July 19 1965 of the Punjab High Court Circuit Bench at Delhi in Regular Second Appeal No 251 D of 1964
ST Desai and I N Shroff for the appellant
SV Gupte KL Mehta Yogeshwar Dayal MM Kshatriya and GS Chatterjee for the respondent
The Judgment of the Court was delivered by Grover J
This is an appeal by special leave from a judgment of the Punjab High Court Circuit Bench Delhi
The facts may be briefly stated One Gajju Mal had five sons Badri Pershad Ganesh Dass Devi Chand Narain Das and Ishar Das
The first four were by his first wife whereas the 5th son Ishar Das was by his second wife Smt
Kanso Devi Gajju Mal died in 1947 leaving him surviving the said five sons and Smt
Kanso Devi
On August 5 1950 Tulsi Ram Seth was appointed by the parties as an arbitrator for resolving certain differences which had arisen relating to partition of the urban immovable properties and other assets and liabilities left by Gajju Mal
On October 31 1950 the arbitrator gave his award
Under clause 6 of this award Smt
Kanso Devi was awarded three sets of property including bungalow No 20 Alipore Road Delhi
The award was made the rule of the court
It was stated in the award that Smt
Kanso Devi would have a widow s estate in the properties awarded to her
It was also provided that the immovable properties allotted and awarded to the various parties would be individually and exclusively owned by them and each party would be entitled to take physical or constructive possession of the properties allotted and awarded to his or her share
Badri Pershad the appellant before us filed a suit in August 1961 against the respondent Smt
Kanso Devi pleading inter alia that she was a limited owner of the property which had been given to her by the award and that she was trying to alienate the same and commit acts of waste to the prejudice of the reversions
He asked for a perpetual injunction restraining her from committing acts of waste and from alienating the suit properties
The respondent contested the suit
On the pleas of the parties the trial court framed seven issues out of which the material one was No 4 which was in these terms  Whether the defendant was awarded life estate only in the property in suit 9 On April 17 1963 the trial court dismissed the suit holding that no act of waste on the part of the respondent had been proved and that she had inherited the property under the Hindu Women s Right to Property Act 1937 and that the award had simply sepa 97 rated her share by metes and bounds and under section 14 1  of the she had become full owner thereof
The first appellate court and the High Court affirmed the decree of the trial court
The sole question for determination is whether the case of the  respondent was governed by sub section
1 or sub section
2 of section 14 of  the  hereinafter called the Act
This section reads 14 1  Any property possessed by a female Hindu whether acquired before or after the commencement of this Act shall be held by her us full owner thereof and not as a limited owner
Explanation
In this sub section property  includes both movable and immovable property acquired by a female Hindu by inheritance or devise 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 of 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 section  1  shall 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 restricted estate in such property According to the appellant the suit property was acquired by the respondent under the award given by Tulsi Ram Seth or  alternatively under the decree based on the award the estate being restricted by both the award and the decree
The provision in the award that the respondent was to have a widow s estate under Hindu Law it is said conferred on her only a limited estate and sub section
1  would be inapplicable
The position of the respondent throughout has been that she had interest in all the joint properties together with the right to partition under the provisions of Hindu Women s Right to Property Act 1937 Act XVIII of 1937
Thus the property was acquired by the respondent at a partition within the terms of the Explanation to sub section
1  of section 14
As she was possessed of that property at the time the Act came into force she became full owner thereof by virtue of section 14 1  of the Act even though previously she was a limited owner
Under section 31 of Act XVIII of 1937 as amended by Act XI 193 8 when a Hindu governed by any School of Hindu law other 98 than the Dayabhaga School died intestate leaving separate property his widow was entitled to the same share as a son in respect of the property left by her husband
Under section 3 2 when any such Hindu died having at the time of his death an interest in a Hindu Joint Family property his widow was to have the same interest in the property as he himself had
Sub section
3  provided that any interest devolving on a Hindu widow under the aforesaid provision was to be a limited interest known as Hindu women s estate but that the widow was to have the same right of claiming partition as a male owner
The case in the courts below proceeded on the footing that all the properties left by Gajju Mal were his separate acquisitions
It was apparently for that reason that the High Court gave a finding that before the partition effected by the arbitrator by means of the award the five sons and the widow respondent of Gajju Mal enjoyed equal shares in the properties left by him
The point for our consideration is narrowed down to this
When a female acquires an interest under the provisions of Act XVIII of 1937 in the properties of her husband which are subsequently separated by means of a partition does she become an absolute owner under sub section
1  of section 14 of the Act or does she get only a restricted estate under sub section
2 of that section  The contention of the learned counsel for the appellant is that the court should first look at sub section
2 and if the case does not fall
within its ambit and scope then alone sub section
1  will become applicable
This manner of reading of the section is not warranted either on principle or authority
The section has to be read as a whole and it would depend on the facts of each case whether the same is covered by the first Sub section or sub section
The critical words in sub section
1  are possessed and acquired
The word possessed has been used in its widest connotation and it may either be actual or constructive or in any form recognised by law
In the context in which it has been used in section 14 it means the state of owning or having in one s hand or power see Gumrnalapura Taggina Matada Kotturuswami vs Setra Veerayya  Ors1
In SS Munna Lal vs
SS Rajkumar  Ors2 it was held that 14th share of a female which had been declared by the preliminary decree passed before the enactment of the Act was possessed by her within the meaning of section 14 and she became the full owner so that on her death the said property descended to her grandsons in accordance with the provisions of sections 15 and 16 of the Act
The word acquired in sub section
1  has also to be given the widest possible meaning
This would be so because of the language of the Explanation which makes sub section
1  applicable to acquisition of property by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance 99 or by gift or by a female s own skill or exertion or by purchase or prescription or in any manner whatsoever
Where at the commencement of the Act a female Hindu has a share in joint properties which are later on partitioned by metes and bounds and she gets possession of the properties allotted to her there can be no manner of doubt that she is not only possessed of that property at the time of the coming into force of the Act but has also acquired the same before its commencement
Sub section 2 of section 14 is more in the nature of a proviso or an exception to sub section
It can come into operation only if acquisition in any of the methods indicated therein is made for the first time without there being any preexisting right in the female Hindu who is in possession of the property
The Madras High Court was right in the observations made in Rangaswami Naicker vs Chinnammal  Another1 that sub section
2 made it clear that the object of section 14 was only to remove the disability on women imposed by law and not to interfere with contracts grams or decrees etc
by virtue of which a women s right was restricted
In Sukhram  Another vs Gauri Shankar  Another2 one Kishan Devi had acquired in 1952 the same interest in the property of the joint family which her husband Hukan Singh had under the provisions of Act XVIII of 1937
The question arose whether after the coming into force of the Act she got rights of full ownership and could alienate the properties in which she had acquired a limited interest without the consent of the male members of the family
This Court decided that she had become full owner by virtue of the provisions of section 141 of the Act
This case is quite apposite for our purpose and we must hold that the respondent became a full owner of the suit properties when the Act came into force
The mere fact that there was a partition by means of arbitration which resulted in an award and a decree based on it would not bring the matter within sub section
2 as the provisions of sub section
1 became fully applicable particularly in view of the express terms of the Explanation
This appeal fails and it is dismissed with costs
VPS Appeal dismissed
1 AIR 1964 Mad


Summary:
A Hindu owning his self acquired properties died in 1947 leaving five sons and a widow
In 1950 an arbitrator was appointed for dividing the assets and liabilities among the heirs
The arbitrator gave his award and a decree was passed in terms of the award
Under the award the widow was allotted her share of the properties and it was stated that she was to have a widow s estate in those properties
On the question whether on the coming into
force of the  she became a full owner of the properties under section 141 or only had a restricted estate in such properties under section 142
HELD The words possessed  and acquired  in section 14 1  are used with the widest possible meaning so that the possession  may be either actual or constructive and the acquisition  can be in any manner whatsoever
Hence where a female Hindu has a share in joint properties which are later on partitioned by metes and bounds and she gets possession of the properties allotted to her before the coming into force of the  she was not only possessed  of that property at the time of the coming into force of the Act but had also acquired  it before its commencement
The mere fact that the partition was by means of an arbitration award would not bring the matter within section 142 as section 141 had already become fully applicable
Section 142 is in the nature of a proviso
or an exception to section 141 and comes into operation only if acquisition in any of the methods indicated therein is made for the first time without there being any preexisting right in the female Hindu to the property
98 F H 99 A C F In the present case the widow inherited the property under section 3 1  of the Hindu Women s Rights to Property Act 1937 and was therefore in possession  of it within the meaning of that word in section 141 and when the award separated her share by metes and bounds she acquired  the property within the meaning of that section
Therefore she had become full owner of the property in her possession under section 141 on the coming into force of the  even though previously she was a limited owner
97 G H 98 D E 99 E F Gummalapura Taggina Matada Kotturuswami vs Setra Veerayya 1959 Supp
1 SCR 968 Munnalal vs RaI Kumar 1962 Supp
3 SCR 418 and Sukhram vs Gauri Shankar   followed