JUDGMENT
1. The house in dispute belonged to the deceased Shri [ENTITY] Advocate of Ludhiana who died on Sept. 27, 1958. he had two wives. The plaintiff-appellant Smt. [ENTITY] is his daughter from one of the wives. The name of the other wife was [ENTITY] who died childless on Oct. 24, 1963. Shri [ENTITY] made a gift of the house in dispute in favour of [ENTITY] vide gift deed dt. July 23, 1930 (Exhibit D2). This gift was in lieu of maintenance and it was mentioned in the gift deed that [ENTITY] will be entitled to alienate the same for necessity, but I she does not alienate the house then on her death the house will revert to the donor and in case the donor dies before the donee, then the plaintiff-appellant will become the owner of the house. Subsequently on Sept. 23, 1942 Shri [ENTITY] executed a Will (Exhibit P. 1) by which he bequeathed his remaining property in favour of the plaintiff-appellant. In the Will it was mentioned that he had already gifted the house in dispute in lieu of maintenance in favour of his wife [ENTITY] and it was again clarified that after the death of [ENTITY]. Shri [ENTITY] and on his death the plaintiff-appellant will become owner of the house. [ENTITY] executed a Will dt. April 11, 1963 (Exhibit D. 1) bequeathing the house in dispute to [ENTITY]. respondent 1. On her death in October 1963, [ENTITY] took possession of this house in pursuance of the Will and then sold it away to Smt. [ENTITY], respondent 2.
2. Claiming that she had become owner of the house on the death of Smt. [ENTITY], the appellant-Smt. [ENTITY] filed a suit for possession of the house against the respondent [ENTITY] and Smt. [ENTITY]. It was pleaded that in terms of thee gift deed (Exhibit D. 2) Smt. [ENTITY] had only life estate in the house and on her death the appellant had become owner thereof since her father had already died. The appellant also claimed mesne profits from the respondents.
3. The suit was contested by the respondent mainly on the plea that [ENTITY] had become full owner of the house in dispute under [SECTION] of the [ACT] and she was fully competent to bequeath the house to [ENTITY] respondent.
4. The trial Court as well as the lower appellate Court accepted the contention of the respondent and held that the limited ownership of [ENTITY] in the house in dispute, by virtue, of the gift deed (Exhibit D. 2), had been enlarged to full ownership on coming into force of the [ACT] on June 19, 1956 in view of its [SECTION]. It was further held that since the house had been gifted for life by Shri [ENTITY] to Smt. [ENTITY] in lieu of maintenance the provisions of [SECTION] of the [ACT] (hereinafter called 'the Act') were not applicable. The appellant's suit was, therefore, dismissed.
5. The short question that arises for determination in the second appeal, filed by the plaintiff, is whether it is [SECTION] or [SECTION] of the Act which is applicable to the rights of [ENTITY] in the house in dispute. If [SECTION] applies then the limitations on the nature of her interest are wiped out and she became full owner of the property. On the contrary, if sub-section (2) applies then her limited interest in the property is not enlarged and she continued to have the restricted estate prescribed by the gift deed (Exhibit D. 2). In order to determine this question is necessary to notice the provisions of [SECTION] of the Act which are reproduced below :
"14. Property of a female Hindu to be her absolute property :
(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 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, or after her marriage, or by her own skill or exertion, or by purchase or 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 [SECTION] shall apply to any property acquired by way of gift or under a will or any other instrument or under 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".
6. Interpreting the provisions of this section it was held in [PRECEDENT], that [SECTION] 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 a 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. It was observed that sub-section (2) is more in the nature of a proviso or exception to [SECTION]. It excepts certain kinds of acquisition of property by a Hindu female from the operation of [SECTION] and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of woman 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 [SECTION]. It was clarified that sub-section (2) cannot be interpreted in a manner which would rob [SECTION]. It was clarified that sub-section (2) cannot be interpreted in a manner which would rob [SECTION]. It was made clear in the judgment that sub-section (2) must be confined to cases where property is acquired by a female Hindu for the first 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. Where, however, property is acquired by a Hindu female at a partition or in lieu of a 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.
7. Thus, the crucial point for consideration in this case is whether Smt. [ENTITY] had pr-existing right of maintenance when hr husband executed the gift deed (Exhibit D. 2) making a gift of the house in dispute to her in lieu of maintenance. If she had pre-existing right then [SECTION] would apply and the limitations on the nature of her interest in the house prescribed in the gift deed (Exhibit D. 2) would be wiped out and she would be considered to have become full owner of the property on the enforcement of the [ACT]. If she had no such pre-existing right then sub-section (2) will apply and her limited interest in the property would continue to have restricted estate prescribed in the gift deed.
8. The Supreme Court in its aforesaid judgment, after considering the two sub-sections of [SECTION], arrived at the following propositions :
(1) A Hindu woman's right to maintenance 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.
(2) The right to maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which the wife becomes a sort of co-owner in the property of her husband though her co-ownership is of subordinate nature.
(3) [SECTION] and the explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of females so as to advance the object of the 1956 Act and promote the sociol-economic ends sought to be achieved by this long-needed legislation.
(4) Sub-section (2) is in the nature of a proviso and has a field of its own without interfering with the operation of [SECTION] The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by [SECTION] or in a way so as to become totally inconsistent with the main provision.
(5) [SECTION] applies to instruments, decrees, awards, gifts etc., which create independent and new titles in favour of females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-existing rights.
These principles were affirmed by the later judgment of the Supreme Court in [PRECEDENT].
9. In this backdrop it was unambiguously held by the Supreme Court that the Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the 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 [ENTITY] to [ENTITY]. Such a right may not be a right to property but it 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 from 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 doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights.
10. In view of the above referred Supreme o Judgment, it cannot be said that a right of maintenance had been conferred on Smt. [ENTITY] for the first time by virtue of the gift deed (Exhibit D2) and before the existence of this document [ENTITY] had no vestige of a claim or right at all. It is manifest that view Exhibit D. 2 the husband had given the house to the wife in lieu of maintenance. This right of maintenance was without a doubt pre-existing and so the gift deed declaring or recognising such a right cannot be considered to have conferred any new title. This transfer of property merely endorsed or confirmed the pre-existing rights of Smt. [ENTITY]. There is, therefore, no infirmity in the view taken by the Court below that by virtue of [SECTION] of the Act the limited estate which had been conferred on Smt. [ENTITY] in lieu of maintenance by the gift deed (Exhibit D. 2) was enlarged to full ownership on the enforcement of [ACT]. she had, therefore, every right to bequeath this property to the respondent [ENTITY].
11. The learned appellant's counsel contended that in the gift deed (Exhibit D. 2) there is a defeasance clause conferring the right of ownership upon the appellant on the death of Smt. [ENTITY] and so this defeasance clause being lawful must be considered operative in view of which the appellant had become owner of the house in dispute on the death of [ENTITY]. I am not convinced by this contention. No doubt, such a defeasance clause is not illegal and is not repugnant to any provision of law, but such clause could acted upon only if the limited estate of Smt. [ENTITY] had continued to exist even on the enforcement of the [ACT]. Once it is held that she had become full owner of the house in dispute in vie of [SECTION] of the At the defeasance clause becomes redundant. This clause was only relevant till Smt. [ENTITY] had not become full owner of the house. It loses its significance the moment her limited rights were enlarged into complete ownership.
For aforesaid reasons, there is no merit in this appeal and the same is dismissed with costs.
12. Appeal dismissed.