Appeal No 191 of 1955
Appeal by special leave from the judgment and decree dated July 31 1953 of the Calcutta High Court in First Appeal No 88 of 1950 arising out of the judgment and decree dated May 18 1950 of the Arbitrator 24 Parganas Alipore in L A Case No 71 of 1944
AV Viswanatha Sastri and Naunit Lal for the appellant
BSen P K Ghose for P K Bose for the respondent
December 16
The Judgment of the Court was delivered by KAPUR J
This is an appeal pursuant to special leave granted by this Court against the judgment and order of the High Court of Calcutta varying the order of the arbitrator in regard to compensation for compulsory requisitioning of the premises in dispute
The appellant before us is the owner of the premises in dispute which at the relevant time consisted of four storeys the ground floor and three upper floors and the respondent is the State of West Bengal which was the opposite party before the arbitrator
This building No 9 Chittaranjan Avenue was constructed before July 28 1940 and was taken on a registered lease for three years by the Bengal Central Public Works Division on a rental of Rs 1950 per mensem inclusive of taxes
On the termination of the lease the building was requisitioned by the West Bengal Government and taken possession of on July 30 1943
The Land 924 Acquisition Officer offered Rs 2200 per mensem inclusive of taxes in the form of rent as compensation
As the appellant did not agree to this compensation the matter was referred under section 19 of the Defence of India Act to an arbitrator Mr J De
He held that Rs 2200 per mensem fixed by the Land Acquisition Collector was a fair compensation
Against this order the appellant took an appeal to the High Court who set aside the order of the arbitrator remanded the case to the arbitrator and laid down the following principle for the ascertainment of compensation   therefore in deciding upon a fair rent for the purpose of section 23 of the Land Acquisition Act it must be a notional fair rent of a hypothetical tenant and the assessment of such notional fair rent must be based upon a consideration which does not take into account restrictions temporarily imposed by any restrictive executive order or legislation like Rent Control Order etc
The assessment in practice should be as if it was of a house of like nature let out for the first time to a tenant who is not compelled to let it out
The practical method will be to assess rent as if it was a new house for the first time let out on that date 
On remand the appellant who had previously claimed Rs 3998 as compensation plus Rs 125 for working and maintaining the lift increased his demand to Rs 7700 per mensem exclusive of municipal taxes and also Rs 125 for the use of the lift
He stated in his application that the amount previously claimed by him  was unduly low and was made through mistake and miscalculation and misconception of things and principle and moreover it was due to the want of proper information at the time 
After the remand he examined further evidence and the respondent also examined some witnesses
The new arbitrator Mr J C Mazumdar held that the matter must be decided according to the rent prevailing in the locality in 1943 for similar buildings with similar accommodation and amenities and proceeding on this basis he awarded compensation of Rs 2581 8 per mensem inclusive of all taxes cost of normal and essential 925 repair cost of the upkeep of the lift and potential value of the building in an important commercial locality having regard to the fact that the period of requisition was indefinite
This sum was to be paid as from August 1 1943
This order did not satisfy the appellant and against it he took an appeal to the High Court who fixed the compensation at Rs 16 per hundred sq
for the ground floor and Rs 13 per hundred sq
for the 1st floor and Rs 12 per hundred sq
for the second floor and Rs 11 per hundred sq
for the third floor and thus calculating for the total floor area ie 5333 sq
per floor it held the compensation to be Rs 2773 per mensem
It rejected the additional award of 10 on account of potential value but allowed Rs 77 per mensem on account of the lift and thus it awarded a total compensation of Rs 2850 per mensem
The High Court however observed   We must make it clear further that in making the above calculation of the monthly compensation at Rs 2850 we have also taken into consideration the additional advantages due to the special adaptability of the disputed premises for the purposes of the Controller of the Army Factory Accounts and his possible willingness to pay a somewhat higher rent for the same Vide 66 IA 104 
Against this judgment the appellant has brought this appeal by special leave
It was argued on behalf of the appellant that the method adopted by the High Court for arriving at the figure of compensation was erroneous because it proceeded on wrong principles in that it took averages of rent paid for the premises No 5 Chittaranjan Avenue and for No 22 Chittaranjan Avenue and ignored the expert opinion of witness U P Malik according to which the rent for ground floor should have been Rs 23 per hundred sq
and Rs 17 8 per hundred sq
for other floors and also that the potentialities of the building had not been taken into consideration
The High Court found that premises No 22 Chittaranjan Avenue was a little better than the premises 926 in dispute and they premises in dispute were  somewhat better than the premises No 5 Chittaranjan Avenue 
In these circumstances it cannot be said that the High Court committed any error of principle in taking an average of the two premises No 22 and 5 Chittaranjan Avenue
The evidence of U P Malik was merely an opinion unsupported by any reasons and in the circumstances of this base the High Court has rightly not placed any reliance upon it
It was then urged that the High Court had erred in taking into consideration the rent payable for the premises No 22 Chittaranjan Avenue as recitals with regard to premises No 22 in exhibit D which was an award for premises No 31 were inadmissible in evidence
This document has not been printed and we do not know what its contents are or its language is
No objection was taken to its admissibility either before the arbitrator or before the High Court
It was referred to in the evidence of the witness for the respondent Nanibhushan Sen Gupta who stated that Rs 2200 would be a fair rent for the premises and in coming to this conculsion he based his calculation it on the award in L A Case No 61 of 1944 in respect of premises Nos 22 and 31 Chittaranjan Avenue and exhibit D was the judgment of that case 
In these circumstances no objection as to the admissibility of this document can be allowed to be raised at this stage
It was then argued that the High Court in arriving at the amount of compensation had ignored the potential value of the premises in dispute in an important commercial locality which the arbitrator Mr J C Mazumdar had evaluated at 10 of the amount determined by him
This contention is well founded
The High Court disallowed this award of 10 without assigning any reason
It said  and although we are not wholly accepting his additional award of 10 on account of so called potentialities etc including the lift we are inclined to assess this further compensation on account of the lift at Rs 77 per month 927 The principles on which compensation is to be ascertained under the provisions of section 19 of the Defence of India Act are the same as those given in section 231 of  the Land Acquisition Act 1894 and one of the principles of ascertaining compensation is to evaluate the potentialities of the land or the premises as the case may be which differ under different circumstances
 The arbitrator in evaluating the potentialities said  In 1943 when the building was first requisitioned the Controller of Army Factory Accounts had already his office in the neighbouring house of 5 Chittaranjan Avenue
This building had therefore a special value to the Controller as it would certainly be more advantageous to him if he could locate his office in the premises in question
This gave greater bargaining power to the landlord and therefore the potential value to him was greater
It has also been conceded that the requisition is for an indefinite period
The Municipal assessment valuation exhibit B series was based purely upon the rental which the building was fetching prior to 1943 and did not take into account the potential value the value which will be maintained for a long period of lease and the additional burden on the lift
For all these three factors I allow an additional 10 p c compensation of Rs 234 12 As per mensem
 The value of potentialities is to be ascertained by the arbitrator as best as he can from the materials before him
In Vyricherla Narayana Gajapatiraju vs The Revenue Divisional Officer 1 Lord Romer said  The truth of the matter is that the value of the potentiality must be ascertained by the arbitrator on such materials as are available to him and without indulging in feats of the imagination
 Another objection taken was in regard to compensation for the lift
The High Court awarded Rs 77 but on what basis it is not clear
In our opinion this claim of Rs 125 per mensem was not excessive considering that two departments of the Government were using this lift which is clear from the fact that an overhead bridge had been constructed for going from 11939 LR 66 IA 104 118
928 premises No 9 Chittaranjan Avenue to the other building which the Government had also requisitioned
This will work out to Rs 3175
In the circumstances Rs 3200 per mensem would be a fair compensation and we would therefore enhance the compensation to that figure and the appeal would be allowed to that extent
Although the appellant has not succeeded in getting the whole of his claim decreed there is no reason for depriving him of his costs proportionate to his success
We accordingly allow proportionate costs
Appeal partly allowed


Summary:
Plaintiff s case was that as the defendant and her husband had no issue they brought up the plaintiff as their foster son from the age of eight years and thereafter the plaintiff continued to live with them and was brought up treating him as their own son
Defendant s husband died on 1411932 and before his death he executed a will bequeathing the suit properties in favour of his wife for her life with a vested remainder in favour of the plaintiff
Both the parties lived together with perfect  under standing but after some time there was misunderstanding and the defendant assumed hostile attitude towards the plaintiff and began to claim the suit property as her absolute proper ty
The plaintiff claimed absolute right in the suit proper ties after the lifetime of the defendant and challenged the right of the defendant to execute any will in respect of the suit properties
The defendant took the plea that her husband died issueless and 718 intestate and did not exeCute any will at any time
Neither she nor her husband brought up the plaintiff as their foster son nor did they educate him
The defendant had brought up her nephew from his childhood and performed his marriage
On account of love and affection for him and his children the defendant executed a registered will on 261069 bequeathing all her properties in his favour
The Trial Court held the will dated 1411932 proved and decreed the plaintiff s suit
The First Appellate Court upheld the Judgment and decree of the Trial Court
The defendant preferred a second appeal in the High Court
During the pendency of the Second Appeal in the High Court the plaintiff died and his legal representatives were brought on record
The High Court allowed the second appeal
The legal representatives of the plaintiff came to this Court by grant of Special Leave
SLP C No 4381979
Married life between 0  and his wife M  was not happy and cordial o  executed a registered will dated 2131921 bequeathing all his properties including the suit properties in favour of his mother and sister for their lifetime and thereafter in favour of R  and D  two sons of his sister and their issues
In the said will reference was made re garding the conduct of M  in deserting him and in any event if she changed her mind and agreed to live under the protec tion of the legatees she was allowed to enjoy the income from item I of the suit properties and that she should construct a house in item referred to in the will and to live there during her lifetime and after her death the said Item I and the house site with the house shall go to his sister s sons 0  died in 1922 and thereafter the legatees under the will entered into possession of all the properties M  put obstruction to the legatees in getting possession M  filed a suit in 1923 praying for a declaration that the will made by her husband was not valid and as such be cancelled and for possession and mesne profits and in the alternative she claimed for maintenance both past and fu ture
719 In the said suit the parties entered into a compromise and a compromise decree was passed on 531924
Uuder the terms of the said compromise the execution of the will was accepted and the same was made subject to the terms of the compromise decree
Under the compromise decree it was agreed that M  would enjoy items 1  2 of the properties mentioned in the will and also 50 cents of land during her lifetime
She would also have an enjoyment of the house site during her lifetime without any right of aliena tion D  died unmarried in 1930 but during his lifetime he sold his interest in the properties in favour of R  his brother who died in 1962
On his death the petitioners being his sons and daughters claimed to have become
enti tled for all their father s properties including the rights in the suit property M  during her life time executed a settlement deed in favour of the respondents giving absolute rights in the suit properties
The petitioners filed a suit against M and the respond ents for declaration that the settlement deed executed by M  will not enure beyond the lifetime of M  M  tookthe plea that the limited interest given to her under the com promise decree had become enlarged into absolute right by virtue of Section 141 of the Act
The Trial Court decreed the suit and it was affirmed in first appeal M  having died the respondents preferred a second appeal in the High Court
The High Court allowed the second appeal against which
the petitioners filed the SLP SLP C No 2113 of 1980 R did not have any issue from A  and S  his wives
He being attached with the petitioner executed a will on 271945 bequeathing his properties in favour of his second wife S  for her lifetime and thereafter absolutely in favour of the petitioner
A provision was also made for the payment of Rs68 and a direction to make available 18 kalams of paddy in favour of A  for her lifetime
In order to ensure the payment of the maintenance and delivery of paddy a charge was also created over the properties to go ulti mately in favour of the petitioner
As the petitioner was a minor at that time the second wife was 720 appointed as his guardian R  died on 8745 and subse quently his first wife A  was awarded 50 kalams of paddy and a sum of Rs250 in cash per annum by way of maintenance
On appeal the High Court modified the decree of the Trial Court and enhanced the maintenance to Rs480 per annum and directed the petitioner the legatee under the will to give one building for the residence of A 
Thereafter in 1951 A  sought the recovery of possession of one of the buildings
The Executing Court allotted to her the eastern house backyard and the shops against which the second wife preferred an appeal to the High Court
A compromise was entered into between the parties in the High Court
According to the terms of compromise A  was permitted to occupy the eastern house together with the two shops but the backyard portion was not given
Later on S  was removed from the guardianship of the petitioner and natural father was appointed as his guardian
The respondents were brother s grandsons of A  who died on 221966 had settled the suit properties in favour of one C  claiming title to the same in pursuance to a compro mise in AAO 567 of 1950 R  another respondent initially took on lease the properties from C  and later on purchased the eastern half of the building and backyard portion
The petitioner challenging the transactions on the grounds that A  was given a right of residence only in the building and the same lasted till her lifetime and such right could never be enlarged into an absolute right that the settlement deed made by her in favour of C  and the sale made by C  in favour of R  a respondent were invalid and no title could be conveyed by A  in their favour filed a suit for recovery of possession of the suit properties with mesne profits
The Trial  Court held that A  was not the absolute owner of the suit properties as contemplated under Section 142 of the Act and decreed the suit in favour of the plaintiff
Single Judge of the High Court dismissed the appeal
On a Letters Patent Appeal the Division Bench of the High Court allowed the appeal and dismissed the suit
The plaintiff petitioner has filed the SLP under Article 136 of the Constitution of India
721 Whether the life estate given to a widow under the will of her Hindu husband beome san absolute estate under the provi sions of the Succession Act was the controversy raised in these cases
The contention raised was that if a female Hindu acquires any property under a will which gives her a restricted estate in such pro perty then provisions of sub section 2 will override the provisions of sub section 1 of Section 14 of the Act which makes a female Hindu as full owner
Dismissing the appeal and the SLPs
this Court HELD PER NM KASLIWAL J on his behalf and on behalf of K RAMASWAMY J of the Act is in the nature of a proviso or an exception to Sec
14 and comes into operation only if acqui sition in any of themethods indicated therein is made for the first time without there being any pre existing right in the female Hindu to the property
If the case falls under the provisions of Sec
141 of the Act then the female Hindu shall he held to he full owner of the property and sub section 2 of Section 14 will only apply where the property is acquired without there being any pre existing right of the female Hindu in such property
730D E 2
Sub section 2 of Sec
14 will he construed more in the nature of a proviso or an exception to sub section
1 of Sec
14 of the Act
This view lends support to the object of the section which was to remove the disability on women imposed by law and to achieve a social purpose by bringing about change in the social and economic position of women in Hindu society
730E F Mst
Karmi vs Arnru and Ors
  Badri Pershad vs
Kanso Devi   V Tulsamma  Ors
vs Sesha Reddy dead by LRs   Bai Vajia dead by LRs
vs Thakorbhai Chelabhai  Ors    Jagannath Pillai vs Kunjithapadam Pillai  Ors   Gopal Singh  Ant
vs Dill Ram dead by LRs
 Ors
   Gulwant Kaur and Others vs Mohinder Singh and Others  and Jaswant Kaur vs Major Harpal Singh  referred to
PER K RAMASWAMY
The Act revolutionised the status of a Hindu female used 722 s141 as a tool to undo past injustice to elevate her to equal status with dignity of person on par with man extin guished pre existing limitation of woman s estate or wid ow s estate known to Shastric law removed all the fetters to blossom the same into full ownersip
The discrimination suffered by Hindu female under Shastric law was exterminated by legislative fiat
The social change thus envisaged must be endeavoured to be given full vigourthrust and efficacy
739F G 2
Section 141 enlarges the restricted estate into full ownersip when the Hindu female has pre existing right to maintenance etc
Subsec
2 operates When the grant was made for the first time under the document with no pre existing right
Sub sec
2 therefore must be read as an exception or a proviso to sub sec
Both the sub sec tions read with the explanation to be pragmaticably consid ered as a constituent integral scheme
739G 740A 3 section 14 is not retroactive in its operation
Devolution of the property under the will would take effect after the demise of the testator and the legatee would be bound by the terms of gift over etc
The stranger legatee cannot take shelter under subsequent change of law to enlarge the opera tion of restrictive covenant to claim absolute ownership in the property bequeathed to her
But socio economic amellora tion under the Act engulfs an instrument under the sweep of section 141 thereof it extinguishes the pre existing limited estate or restrictive condition and confer absolute and full ownership of the property possessed by a Hindu female as on the date when the Act had come into force namely June 17 1956
The courts are not giving retrospective operation to section 141 or to the instrument
The courts only would be applying the law to the facts found as on the date when the question arose to find whether legatee has pre existing vistage of title under law and the nature of possession of the property held by her and whether the legatee would get the benefit of section 141 of the Act
There need be no express recital even in the will of the enjoyment of the property devised under the will in lieu
or maintenance ass limited owner for her life
Even if so mentioned it would be a reflection or restatment of the law existing as in 1932 when the will was executed
740G 741C 4
A legatee under a testamentary disposition is bound by the restrictive covenants contained therein
But distinc tion should be maintained between an ordinary legatee and a legateeHindu female coupled with vistage of pre existing title to the property but with a limited estate known to Shastric law
740F G 723 5
As per existing law as in 1932 the widow as a legatee was entitled to widow s estate and she remained in posses sion of the date of the Act came into force and was in enjoyment of the income derived therefrom for her life
No one had a right to interdict it
The restrictive covenant therefore does not stand an impediment to section 141 to have full play to extinguish the same and enlarge the limited estate of widow into an absolute ownership
741D E 6
The restrictions contained in the will though fails both under sub sec
2 as well as sub sec
1 of section 14 the right to maintenance being a pre existing right over property res ad rem section 141 would apply  The testamentary succession with a restrictive conditon in the will was obliterated
She became absolute owner on or after June 17 1956
 741E F Sir Main Henry Earlier History of Institutions at P 339 ES Shivaswamy lyer Revolution of Hindu Women 1935 Edn
P 64 Manu Smriti Chapter III verses 55 57 Chapter IX verses 18 149 45 416 299 Chapter XI verse 67 Mahat ma Gandhiji S article Young India dated October 17
1929 Ravindra Nath Tagore his speech in 1913 reprinted in To the women P 18
The Position of Woman in Hindu civilisa tion 1955 Edn
By Altaken referred to
State of Madras vs Srimati Charnpakam Dorairaan   CB Muthatmma vs Union of India  Ors   Air India vs Nergesh Meerza  Ors   Pratap Singh vs Union of India 19851 Suppl
2 SCR 773 Seth Badri Prasad vs Smt
Kanso Devi  V Tulasamma vs Sesha Reddy dead by LRs   Bai Vajia dead by LRs
vs Thakorbhai Chelabhai  Ors   Jagannathan Pillai vs Kunithapadam Pillai  Ors   Gulwant Kaur  Anr
vs Mohinder Singh  Anr   Maharaja Pillai Lakshmi Ammal vs Maharaja Pillal Thillanayakom Pillai  Anr  Jaswant Kaur vs Major Harpal Singh  Munshi Singh vs Smt
Sohan Bai dead by LRs 1989 2 SCR 1012 Pearey Lal vs Rameshwar Das 1963 Suppl
2 SCR 834 Karmi vs Amru AIR 1971 SC 745 and Kalawatibai vs Soiryabai  Ors
   referred to