IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.04.2007 CORAM THE HONOURABLE MR. JUSTICE P.JYOTHIMANI Appeal Suit No. 387 of 1993 1.M.M.Shanmugasundaram 2.Kasthuri 3.Samundeeswari 4.Bhavani . . Appellants/Plaintiffs Versus 1.Balasubramanian 2.Chandrasekaran 3.Sakunthala . . Respondents/Defendants Prayer: This appeal suit is preferred under section 96 CPC r/w or 41 R1 against the decree and judgment dated 24.01.1992 and made in O.S.No.151 of 1986 on the file of the Subordinate Judge, Poonamallee. For Appellants :Mr.N.Kirubakaran For Respondents :Mr.R.Subramaniam for Mr.N.S.Sivakumar for R1 & R2 Mr.A.Palaniappan for R3 JUDGMENT The plaintiffs in the trial court are the appellants and they have filed a suit in O.S.No.151 of 1986 for declaration of their title in respect of B schedule property which is the southern moity of 'A' Schedule, Ramanujamkoodam Street, Ponnamallee Village bounded on the North Shanmugasundaram house and west by street, with linear measurements of 19' Northsouth and 200' Eastwest, comprised in Survey No.115/74. The A schedule property measuring 38' Northsouth and 200' Eastwest. The said suit is also filed for delivery of possession of B schedule property and for the past mesne profits apart from the claim of future mesne profit. 2.The admitted fact is that the suit property originally belonged to Masilamani mudaliar whose first wife was Meenakshiammal through whom was born the only daughter namely Visalakshi ammal @ https://hcservices.ecourts.gov.in/hcservices/ Saraswathi who died in the year 1965 and her two sons namely Sabapathy and Murugesan also died in the year 1975 and 1972 respectively and the plaintiffs are the legal heirs of the said Murugesan. 3.It is also admitted that after the death of first wife namely Meenakshi ammal, Masilamani Mudaliar married Saraswathi ammal as his younger wife who died on 08.08.1975. Visalakshi ammal @ Saraswathi became the absolute owner and therefore the plaintiffs who claim under Visalaksh ammal @ Saraswathi are entitled for declaration. 4.According to the plaintiffs the defendants who are sister's, sons and daughter of the second wife of Masilamani Mudaliar namely Saraswathi ammal are not entitled to be in possession of the suit property and therefore, the plaintiffs being the successors of Visalakshi ammal alias Saraswathi who is the remainder holder of the property after the life time of the second wife of Masilamani Mudaliar namely Saraswathi ammal are entitled for declaration and possession. 5.On the other hand, it was the defendants case that the said Saraswathi ammal younger wife of Masilamani Mudaliar was the absolute owner of the B Schedule property and as absolute owner she has also sold the northern ½ of the property to one Jayaram Mudaliar. That apart, it is the case of the defendants that the Will executed by Masilamani Mudaliar on 29.10.1938 was not properly administered by the executors. The second wife namely Saraswathi ammal has become absolute owner of the suit property having enjoyed the same for 60 years without interruption and without any claim from Visalakshi ammal alias Saraswathi. 6.It is the further case of the defendants that Visalakshi ammal @ Saraswathi died in the year 1965 before Saraswathi ammal the second wife of the Masilamani ammal. Therefore, there cannot be any right to Visalakshi ammal @ alias Saraswathi in respect of the suit property. 7.According to the defendants since one of the sons of Visalakshi ammal alias Saraswathi namely Murugesan himself died even before the death of the second wife of Masilamani mudaliar namely Saraswathi ammal and therefore the plaintiffs cannot have any right. 8.The defendants claimed right under the will executed by the second wife of Masilamani mudaliar namely, Saraswathi ammal dated 27.07.1975 marked as Ex.B1 under which the first defendant claimed to be the person entitled to the property. 9.The trial Court has framed the following issues; https://hcservices.ecourts.gov.in/hcservices/ 1.Whether the name of the first defendant has been wrongly given? 2.Whether Visalakshi ammal alias Saraswathi ammal died before the Saraswathi ammal and if so whether the plaintiffs are entitled to claim right over the suit property? 3.Under the Hindu Succession Act, 1956 (hereinafter referred as the Act) after the death of Masilamani mudaliar, whether his younger wife Saraswathi ammal has become absolute owner of the suit property? 4.Whether the first defendant is entitled to the suit property based on the will of Saraswathi ammal? 5.Whether the plaintiff is entitled for past mesne profits of Rs.7,700/- and Rs.200/- for future mesne profit every month? 6.Whether the plaintiff is entitled for declaration as prayed for? 7.Whether there is any cause of action for the suit? 8.What other reliefs, the parties are entitled? 10.Since, subsequently, there was an amendment to the plaint the first issue has not arised for consideration. While considering the other issues 2 to 4 and 6, the trial Court having come to the conclusion that the second wife of Masilamani mudaliar namely Saraswathi ammal was placed in possession of the suit property by virtue of his will dated 29.10.1938 and after the Hindu Succession Act, 1956 has come into effect, she being in possession has become entitled absolutely to the property as per Section 14(1) of the Act and holding that the daughter of Masilamani mudaliar born through his first wife Meenakshi ammal namely Visalakshi ammal alias Saraswathi has pre-deceased his second wife in the year 1965 has held that the said Saraswathi ammal who died only on 08.08.1975 has become absolute owner of the property and therefore her bequeathing under the will dated 27.07.1975 to the first defendant is valid in law and in view of the same dismissed the suit. 11.It was as against the said dismissal, the plaintiffs have filed the present first appeal. Considering the above said facts and https://hcservices.ecourts.gov.in/hcservices/ circumstances of the case, especially in the circumstances that it is admitted that the suit property belonged absolutely to Masilamani mudaliar and the will executed by Masilamani mudaliar on 29.10.1938 and pursuant to the said Will his second wife namely Saraswathi ammal was put in possession of the suit property and the said Saraswathi ammal died on 8.8.1975 and considering that the Visalakshi ammal alias Saraswathi had two sons namely Sabapathy and Murugesan who also died in the year 1975 and 1972 respectively and the plaintiffs are claiming right over the property as legal heirs of the Murugesan on the basis of the Will executed by Masilamani mudaliar dated 29.10.1938 (Ex.A1) under which the second wife of Masilamani mudaliar namely Saraswathi ammal was given life interest to enjoy the property during her life time and therefore it is her limited interest over the property and after her death on 08.08.1975, as per the plaintiffs, the property is reverted back to Masilamani mudaliar's daughter Visalakshi ammal @ Saraswathi and her legal heirs and in such position, the following points arise for determination in the first appeal; (i)Whether possession given to Saraswathi ammal under the Will of Masilamani mudaliar dated 29.10.1938 marked as Ex.A1, has enlarged in to an absolute right to her by virtue of Section 14(1) of the Act; (ii)Whether as per contents of the said Will dated 29.10.1938 wherein Saraswathi ammal was given life interest and thereafter the absolute right to the daughter of Masilamani mudaliar born through his first wife Meenakshi ammal namely Visalakshi ammal @ Saraswathi and therefore the condition given under the Will is a restriction on the right of Meenakshi ammal as per Section 14(2) of the Act so as to enable the plaintiffs to claim right under the vested remainder holder namely Visalakshi ammal @ Saraswathi? 12.Before deciding the points for consideration, it is necessary to refer to the contention of Mr.N.Kirubakaran, the learned counsel appearing for the appellants. While admitting the facts in respect of this case as not of much dispute, he would submit that inasmuch as the right of Saraswathi ammal itself is under the Will executed by her husband Masilamani mudaliar dated 29.10.1938 marked as Ex.A1, the contents of the said Will is binding upon her which imposes restrictions on her right of absolute ownership over the property, since it only confers life estate on her and after her life time absolute right given to the daughter of Masilamani mudaliar namely Visalakshi ammal @ Saraswathi or her legal heirs. The learned counsel for the appellants also submit that https://hcservices.ecourts.gov.in/hcservices/ the will executed by Masilamani dated 29.10.1938 which contains many items of properties in which the suit property is referred to as item number 25. In the said Will Masilamani mudaliar has specifically stated in para 7 that "in respect of item 25('schedule property') and item Nos.21 and 22 my younger wife Saraswathi ammal shall enjoy the suit properties absolutely subject to the condition namely in respect of item No.25 house (suit property) which is in two parts, Southern Part (B schedule property which is the subject matter of dispute) shall be given to my eldest daughter or her legal heirs after her (Sarawathi ammal) life time." 13.Therefore, according to the learned counsel for the appellants, the condition by which the Will has been given in favour of Saraswathi ammal is one of restriction and it is only subject to that condition she was placed in possession of the suit property and therefore it is a case which has to be covered under Section 14(2) of the Act and cannot be construed as one under Section 14(1) of the Act. 14.The learned counsel for the appellant further submitted, inasmuch as Ex.A1 Will is clear that absolute vested remainder right was given not only to the daughter of Meenakshi ammal namely Visalakshi ammal @ Saraswathi but also to her legal heirs and therefore the plaintiffs who are claiming under her are entitled to have the absolute right, having stepped into the shoes of Visalakshi ammal @ Saraswathi. He would further contend that it is not as if the said Saraswathi ammal was put in possession pursuant to her maintenance right or in her pre-existing right. In this regard he would also submit that Ex.A1 Will itself contained various items of properties and infact the testator Masilamani mudaliar has given absolute right in respect of various right to Saraswathi ammal and therefore it cannot be construed that as far as the suit property is concerned she was to be in possession on the basis of her pre-existing right or maintenance right etc., and her possession was only to the restricted to life estate as per the Will. 15.The learned counsel for the appellant would submit that it is not even the case of the defendants in the written statement that the said Saraswathi ammal was put in possession of the suit property pursuant to the Will dated 29.10.1938 based on the maintenance right. 16.The learned counsel for the appellant also relied upon the Judgment of the Honourable Supreme Court reported in GULABRAO BALWANTRAO SHINDE v. CHHABUBAI BALWANTRAO SHINDE (AIR 2003 SCC 160) to show that in the absence of pleadings that said property was given to her by way of maintenance, mere possession would not enlarge into full ownership right by invoking Section 14 of the Act. https://hcservices.ecourts.gov.in/hcservices/ 17.The learned counsel appearing for the appellants also bring to the notice of this Court to the evidence of the first defendant DW1 during cross-examination wherein he has admitted that Saraswathi ammal has already sold the northern portion of the A schedule property and therefore the question of putting her in possession in respect of southern portion for maintenance does not arise. Therefore, the possession of the property by Saraswathi ammal cannot be treated as her pre existing right. The learned counsel for the appellants also relied upon another judgment of the Honoruable Supreme Court reported in BHURA V. KASHI RAM (1994 2 SCC 111) which was relating to the possession of a daughter under the Will to contend that once life interest is given under the Will, no more meaning can be given to the same and therefore it can never be presumed to be enlarged as absolute estate and the same has to be conferred under Section 14(2) of the Act. 18.The learned counsel for the appellants also placed reliance on the Judgment of the Honourable Supreme Court reported in MST.KARMI VS. AMRU & ORS. (AIR 1971 SC 745) and contended that the life estate given to Saraswathi ammal can never be enlarged as absolute estate under the Hindu Succession Act. 19.On the other hand, Mr.R.Subramanian, learned counsel appearing for the respondents would submit that on fact it was the specific case of the defendants in the written statement that Sarawathi ammal who was put in possession of the suit property pursuant to the Will become entitled to the suit property after passing of the Hindu Succession Act, 1956 and also she continued to be in possession till her death in the year 1975. 20.The learned counsel for the respondents further submitted that the trial Court in fact has framed issues about the right of Saraswathi ammal under the Will of Masilamani mudaliar dated 29.10.1938, after passing of the Hindu Succession Act, 1956 and came to a definite conclusion that the possession of Sarawathi ammal was based on her pre existing right which has been confirmed in the Will and therefore the same has correctly found by the trial Court that her right has enlarged under Section 14(1) of the Act as absolute right. 21.The learned counsel for the respondents also submitted that admittedly Saraswathi ammal happened to be the wife of Masilamani mudaliar who married her after the death of his first wife Meenakshi ammal, it goes without saying that as his wife she is entitled for maintenance which is a pre-existing right available to her. According to the learned counsel, even if it is not only on the basis of maintenance, the right under Section 14(1) of the Act is available to her since even before the Act came in the force she was https://hcservices.ecourts.gov.in/hcservices/ placed in possession. For this he has relied upon the Judgment of the Honourable Supreme Court reported in V.TULASAMMA v. V.SESHA REDDI (AIR 1977 SCC 1994) wherein the Honourable Supreme Court has held that actual physical possession is not necessary and possession can be constructive in nature also. 22.The learned counsel for the respondents also relied upon various other judgments reported in SRI MAHALIAMMAN TEMPLE v. VIJAYAMMAL (1983 2 MLJ 442), THOTA SESHARATNAMMA AND ANOTHER v. THOTA MANIKVAMMA (DEAD) BY LRs & OTHERS (1992 1LW 601 SC) and K.RAMASWAMI GOUNDER ETC. v. ADIKESAVA GOUNDER & ORS (1995 2 LW 810) to show that there is no necessity to say about the pre-existing right. 23.The learned counsel would further submit that as far as the judgment relied upon by the learned counsel for the appellants reported in BHURA V. KASHI RAM (1994 2 SCC 111) it relates to daughter's right but even in respect of the said right subsequently the Supreme Court in BALWANT KAUR v. CHANAN SINGH (AIR 2000 SCC 1908) by relying upon the Hindu Succession Act has held that even the daughter has right of maintenance which is pre-existing right. The learned counsel for the respondents also submitted that in all these cases wherein pre-existing right is available are not necessarily in respect of maintenance. When once a Hindu female is put in possession of the property before the Act come in to effect her right enlarge into an absolute right as per Section 14(1) of the Act. The limited right under Section 14(2) of the Act by way of restriction arise only in cases where after coming into force of the Act and the grant received by the female Hindu for the first time. The learned counsel for the respondents also relied the latest judgment of the Honourable Supreme Court reported in SADHU SINGH v. GURDWARA SAHIB NARIKE (2006(4) CTC 773)to substantiate his contention. 24.Apart from the admitted fact which I have narrated above, it is true that a reference to Will Ex.A1 dated 29.10.1938 had contained various properties apart from the suit property and in respect of some other properties absolute right was given to his second wife Saraswathi ammal and it is also admitted that she has in fact sold some of the said properties also. It is also true as per the reading of the Ex.A1 Will that Saraswathi ammal was not placed in possession in respect of the suit property in lieu of her right of maintenance but the first defendant who was examined as DW1 has categorically admitted in his cross-examination as follows; "khrpyhkzp Kjypahh; ,we;j neuj;jpy; mtUf;F gaph; bra;a[k ; epyk; Rkhh; 10 Vf;fh; ,Ue;jJ/ me;j 10 Vf;fhpy; rh/M/1d; fPH; ru!;tjpak;khSf;F khrpyhkzp https://hcservices.ecourts.gov.in/hcservices/ Kjypahh; 2 Vf;fh; epyk; bfhLj;jpUf;fpwhh;/ rh;t Rje;jpukhf ru!;tjp ak;khs; nkw;go epyj;ij mDgtpf;fyhk; vd;W rh/M/1d;go epyk; bfhLj;jjhy; ru!;tjpak;khs; me;j epyj;ij gpd;dpl;L tpw;Wtpl;lhh;. khrpyhkzp KjypahUf;F uhkh$f;Tlj; bjUtpy; jhth tPl;ilj; jtpu ntW tPLfs; ,y;iy/ gps;isahh; nfhtpy; bjUtpy; khrpyhkzp KjypahUf;F xU tPL ,Ue;jJ. me;j tPl;;il gpd;dpl;L ru!;tjpak;khs;jhd; tpw;Wtpl;lhh;/ jhth brhj;jpy; tlf;Fg; gf;f gFjpiaa[k; ru!;tjpak;khs;jhd; tpw;Wtpl;lhh;/ " In any event it is not in dispute that Saraswathi ammal was the second wife of Masilamani mudaliar who married her after the death of his first wife namely Meenakshi ammal whose daughter was Visalakshi ammal alias Saraswathi under whom the plaintiffs claim. 25.It is also in admission that the said Visalakshi ammal @ Saraswathi died in the year 1965 before the death of the second wife of Masilamani mudalilar namely Saraswathi ammal who died on 08.08.1975. So, at the time when the said Masilamani mudaliar executed the Will Ex.A1 dated 29.10.1938, the said Saraswathi ammal was put in possession pursuant to the terms of the Will and in the meantime when she was in possession the Hindu Succession Act, 1956 came into existence and even thereafter till her life time in the year 1975 she was in possession of the suit property. Therefore, it cannot be said as if she had no right over the property either on the date of execution of the Will by Masilamani Mudaliar or immediately after his death since she happens to be the wife of the said Masilamani Mudaliar and therefore it is not necessary that for the purpose of maintenance she has to be in possession of the suit property. Her possession in the suit property is necessarily for her maintenance, apart from her right as the wife of the deceased Masilamani mudaliar since he is not a stranger. Therefore, it cannot be said as if she had no right at all at the time when she was put in possession of the suit property before the Hindu Succession Act came into existence. After the Act has come in to existence Section 14(1) of the said Act confers full ownership to such a female Hindu who has acquired the right over the property as its full owner. In fact the explanation clause to Section 14(1) of the Act says that "the acquisition of right by a female Hindu means such acquisition may be either by inheritance or by 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 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 https://hcservices.ecourts.gov.in/hcservices/ Act". Further, it is time and again explained by the Honourable Apex Court that there is absolutely no difficulty to come to the conclusion that the possession given to a female Hindu before the Act has come into existence or even after the act came into existence can be under any one of these categories and not necessarily in lieu of maintenance. Therefore, even before the Act has come in to existence there was no restriction given to such right of acquisition to the female Hindu to be in possession and the purport of the Act was to give absolute right which was given in a restrictive manner of maintenance under the Vedic and Sastric principles of Hindu Law. As far as the restrictive right under 14(2) of the Act is concerned as rightly pointed out by the learned counsel for the respondents, the Honourable Apex Court and this Court on many occasion has held that such restrictions will arise in cases where a female Hindu gets the grants for the first time after the Act has come into effect and not based on pre-existing right. Section 14 of the Hindu Succession Act states as follows; 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. (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 ward prescribe a restricted estate in such property. 26.Undoubtedly the right of a Hindu woman in the property as per Sections 14(1) and (2) of the Hindu Succession Act, 1956 was dealt with extensively by the judgment of the Honourable Apex Court in one of the earliest judgment rendered in v.TULASAMMA V. SESHA REDDI (AIR 1977 SCC 1944). It was in that case, the basic principles enunciated under the Hindu Succession Act, in contrast to the Vedic and Sastric Principles have been explained in detail as guidelines for posterity. The Honourable Supreme Court has held that prior to the enactment of Section 14, the Hindu female's right was restricted under the Sastric Hindu law and that was made absolute estate under the Act. In fact the Supreme Court has even held that there is no necessity for the actual physical possession of a Hindu female before the Act came into existence and even a constructive possession by way of a right and by virtue of that the woman was entitled or capable of obtaining possession of the property itself was sufficient to have the absolute right under Section 14(1) of the https://hcservices.ecourts.gov.in/hcservices/ Act. While considering the distinction between Sections 14(1) and (2) of the Act, the Honourable Supreme Court has held that Section 14(2) is merely in the nature of proviso or exception to Section 14 (1) of the Act and the same has to be construed on the broad sweep of Section 14(1) of the Act by saying that construing it otherwise would amount to making mockery of Section 14(1) of the Act and held that Section 14(2) can be made applicable only in respect of properties acquired by the Hindu female for the first time as a grant without any pre-existing right under the gift Will etc., While analysing the historical illustration in this regard the Honourable Supreme Court has held categorically in the Judgment reported in V.TULASAMMA v. V.SESHA REDDI (1977 SCC 1944) at page number 1948 as follows; 4. ". . . 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 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. This constructional approach finds support in the decision in Badri Prasad's case (supra) where this Court observed that sub- section (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, Cl.18(2) of the Draft Bill, corresponding to the present sub-section (2) of Section 14,