IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 09-06-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.1673 of 1996 T.S.Ganesan .. Appellant/Plaintiff Versus 1. Smt.Parvatham Ammal 2. S.Venkatesan Respondent 2 brought on record as LRs of the deceased, sole respondent vide order of Court, dated 28.4.2008, made in C.M.P.No.9165 of 2001 in S.A.No.1673 of 1996. .. Respondents/Defendant PRAYER: Appeal filed under section 100 of CPC against the judgment and decree, dated 15.2.1996, passed in A.S.No.51 of 1994, by the Additional Sub Judge, Mayiladuthurai, confirming the judgment and decree, dated 25.4.1994, passed in O.S.No.364 of 1986, by the District Munsif, Mayiladuthurai. For Appellant : Mr.T.V.Ramanujam Senior Advocate for Ms.C.Uma Shankar For Respondents : Mr.A.Muthu Kumar J U D G E M E N T The second appeal has been filed against the judgment and decree, dated 15.2.1996, made in A.S.No.51 of 1994, on the file of the Additional Sub Judge, Mayiladuthurai, confirming the judgment and decree, dated 25.4.1994, made in O.S.No.364 of 1986, on the file of the District Munsif, Mayiladuthurai. 2. For the sake of convenience the parties in the appeal are referred to as they have been arrayed in the suit in O.S.No.364 of 1986. 3. The plaintiff in the suit O.S.No.364 of 1986 is the appellant in the present second appeal and the defendant in the said suit is the respondent in the second appeal. The plaintiff had filed the suit O.S.No.364 of 1986, on the file of the District Munsif, Mayiladuthurai, praying for the relief of declaration to declare that the defendant in the suit had no right to alienate the suit property https://hcservices.ecourts.gov.in/hcservices/ and for the relief of permanent injunction to restrain the defendant from executing any document in favour of any person. 4. It is the case of the plaintiff that he is the son of the defendant, namely, Parvatham Ammal. The plaintiff's father Sethurama Iyer had executed a Will, on 4.9.1979, bequeathing the properties he had got under the partition along with certain other properties. According to the recitals of the registered Will, the suit house is to be enjoyed by the defendant during her life time and thereafter, it was to be enjoyed by the plaintiff, absolutely. Sethurama Iyer the father of the plaintiff had died and the plaintiff has been in enjoyment of the suit house in accordance with the recitals in the Will. Due to the misunderstandings that had arisen between the plaintiff and the defendant in respect of the issues relating to the properties certain Court proceedings are pending. While so, the defendant, with the wrongful intention of creating loss to the plaintiff, was attempting to settle the suit property in favour of her other son Venkatesan. The defendant has only a life interest in the suit property and therefore, she does not have any right to alienate the same. Even if it was found that the defendant had alienated the suit property before the filing of the present suit, it would be non est in law as it would be illegal. In such circumstances the suit had been filed praying for the relief of permanent injunction restraining the defendant from in any way alienating the suit property. The plaintiff had further prayed for the relief of declaration that even if the property had already been alienated it would not bind the plaintiff in any way. 5. In the written statement filed by the defendant it has been stated that the suit is not maintainable both in law and on facts. The suit has been filed with a view to get unlawful gain and it is speculative and vexatious. Though the relationship of the parties is admitted and the fact that the will had been executed by Sethurama Iyer, on 4.9.1979, is also admitted, the interpretation given by the plaintiff regarding the Will has been denied as incorrect. The house property belongs to the defendant, absolutely. As per the Hindu Succession Act, 1956, even if only a life interest has been conferred in accordance with the terms of the Will it would enlarge into a full estate. Hence, the defendant is competent to deal with the house property as she likes. The provisions of Section 25(d) of the Tamil Nadu Court Fee and Suits and Valuation Act, 1955, cannot be applied in the present case. The relief asked for by the plaintiff relates to an immovable property which was worth more than one lakh of rupees. The plaintiff's right and title in the suit property is denied. The plaintiff ought to have valued the suit according to the market value of the suit property. The description, door number and serial number of the suit property are all incorrect. The plaintiff has filed the suit only with the intention of taking away all the belongings of the defendant and to leave her in indigent circumstances. The suit is not properly valued and the proper Court fee has not been paid. The suit has not been framed properly and it has not been filed in the proper forum. There is no cause of action for the suit and the plaintiff is not entitled to get any relief as prayed for in the suit. Hence, the https://hcservices.ecourts.gov.in/hcservices/ suit has to be dismissed in limini, with costs. 6. Based on the averments made in the plaint and in the written statement, the trial Court had framed the following issues for consideration: i)Is the plaintiff entitled to the relief of declaration and permanent injunction as prayed for in the suit? ii) Has the Court fee for the suit been paid properly and correctly? iii) To what other reliefs the plaintiff is entitled to? 7. The plaintiff had examined himself as P.W.1. Eight documents have been marked in favour of the plaintiff. The defendant had examined herself as D.W.1. No document has been marked on the side of the defendant. 8. Based on the averments of the plaintiff as well as the defendant and in view of the evidence available, the trial Court had found that certain facts were admitted by both the parties. The admitted facts are that Sethurama Iyer had two sons, namely, T.S.Ganesan, the plaintiff in the suit and the second respondent in the present second appeal. Sethurama Iyer had four daughters, apart from his two sons. Sethurama Iyer and his two sons had partitioned all the properties in the year 1973. By the said partition, no property was allotted, either to his wife Parvatham Ammal or to his daughters. After the said partition Sethurama Iyer had got some properties from her step mother Valambal under a settlement deed marked as Ex.A-2. By a Will, dated 4.9.1979, marked as Ex.A-1, Sethurama Iyer had bequeathed a life interest in the suit house to his wife Parvatham Ammal, the defendant in the suit. 9. The trial Court had found that Sethurama Iyer, the husband of the defendant Parvatham Ammal, had given the suit house to her for her occupation and enjoyment as part of her maintenance. Even though only a limited life interest has been created by Sethurama Iyer in favour of his wife Parvatham Ammal, as found in the Will executed by him, since the suit house has been given to the defendant as maintenance, the defendant would have absolute interest in the said property, in accordance with Section 14 of the Hindu Succession Act, 1956 and the cases decided by the Courts of law. 10. The trial Court was of the view that when a life interest is created in a residential property in favour of a woman as part of a pre-existing right for her maintenance, the limited interest enlarges into an absolute interest in the said property. Thus, the trial Court had dismissed the suit by its judgment and decree, date 25.4.1994. 11. Aggrieved by the judgment and decree of the trial Court, the plaintiff had preferred an appeal on the file of the Additional Sub Court, Mayiladuthurai, in A.S.No.51 of 1994. The First Appellate Court had framed the following points for consideration: https://hcservices.ecourts.gov.in/hcservices/ 1) Whether the life interest given to the defendant over the suit property by way of the will, dated 4.9.1979, has become an absolute right, as per Section 14(1) of the Hindu Succession Act, 1956. 2) Whether the plaintiff is entitled to the reliefs of declaration and permanent injunction as prayed for in the suit? 3) What appropriate relief, the plaintiff/appellant is entitled to? 12. While confirming the conclusions arrived at by the trial Court, the First Appellate Court had held that when a husband had got a property, whether as an ancestral or as an absolute property, his wife has a prior right of maintenance from such a property of her husband. From Ex.A-1, executed by Sethurama Iyer, it is clear that a life interest had been created in favour of the defendant. The said right had been converted into an absolute right by the operation of Section 14(1) of the Hindu Succession Act, 1956. 13. The First Appellate Court did not accept the contention of the plaintiff that Sethurama Iyer had conveyed only a life interest in the suit property in favour of the defendant and that it did not enlarge into an absolute interest in view of the fact that by Ex.A-1 some other properties were also given to the defendant, which were sufficient for her maintenance. Since there was a pre-existing right of maintenance the life interest created in the suit property in favour of the defendant had enlarged in accordance with Section 14(1) of the Hindu Succession Act, 1956. The customary rights of women which were existing prior to the enactment of the Hindu Succession Act, 1956, would mature into statutory rights after the Act had come into force. Thus, the First Appellate Court had confirmed the findings of the trial Court. 14. Aggrieved by the judgment and decree of the First Appellate Court, dated 15.2.1996, the present second appeal has been filed before this Court. 15. The substantial questions of law arising for consideration are as follows: "(1) Whether the Courts below committed an error in holding that the suit property was bequeathed to Parvadam Ammal in lieu of her maintenance especially in the absence of any recital in the Will dated 4.9.79 and in the absence of any pleading to the effect that the property was given to Parvadam Ammal in lieu of maintenance? (2) Whether the Courts below committed an error in holding that in respect of the suit property the right of Parvadam Ammal got enlarged into an absolute estate?" 16. The learned counsel appearing for the appellant had contended that both the Courts below had wrongly proceeded on the footing that there was a pre-existing right of maintenance in the https://hcservices.ecourts.gov.in/hcservices/ defendant and that the said right had enlarged into an absolute right in respect of the suit house. It was further contended that no such plea had been raised in the written statement and also that it has not been established by available evidence. No documents were marked on behalf of the defendant. The Will, dated 4.9.1979, marked as Ex.A- 1, is also silent about this aspect. 17. The defendant, who is well acquainted with the legal position and status of the Will, dated 4.9.1979, had clearly admitted that she was given only a life interest in the property in question. It is also clear from the release deed, dated 29.01.1983, marked as Ex.A-8, through which she has released her life interest in the property in favour of her grand son. From Ex.A-8, it is clear that the life interest created in the suit property in favour of the defendant is not in lieu of maintenance. Further, there is no pre- existing right of maintenance vested in the defendant. No such pre- existing right has been mentioned, either in the Will or in the written statement filed by the defendant. When the pre-existing right of maintenance is a question of fact, it should have been pleaded and proved in the manner known to law. Presumption of such a fact, not pleaded by the defendant, cannot be made. 18. The learned counsel for the appellant had contended that the decision of the Supreme court in Vaddeboyina Tulasamma and others V. Vaddeoyina Sesha Reddi (dead) by L.Rs. (AIR 1977 SC 1944) does not apply to the facts of the present case. There is no enlargement of the life interest, bequeathed to the defendant by the Will, dated 4.9.1979, into an absolute interest. Section 14(2) of the Hindu Succession Act, 1956, will be applicable to the facts of the present case. Section 14(1) of the Hindu Succession Act, 1956, would not be applicable since it would be applicable only when there was a pre- existing right in lieu of maintenance. Further, Section 14(2) of the Hindu Succession Act, 1956, did not prohibit any male Hindu to execute a Will with a limited interest or estate. 19. In the present case the property in question is the separate property of the step mother of Sethurama Iyer. She had settled the property by a settlement deed, marked as Ex.A-2, in the year 1975. The separate property of Sethurama Iyer, which is the property in question in the suit O.S.No.364 of 1986, had been bequeathed to the defendant as a life interest and after her death it was to go to the plaintiff, absolutely. There is no ambiguity in the Will or in its interpretation. According to the Will, dated 4.9.1979, marked as Ex.A-1, the properties of Sethurama Iyer were given to three persons, namely, the plaintiff, T.S.Ganesan, Son of Sethurama Iyer, Parvatham Ammal, Wife of Sethurama Iyer, who is the defendant in the suit, and Srikanth, Son of Venkatesan and the grand son of Sethurama Iyer. Under the said Will, the defendant was given two coconut thopes and 1/3rd share of the income from the Mill. Thus, the defendant was well and sufficiently provided for leading a decent life. Through Ex.A-8, the defendant had released her 1/3rd share in the Mill in favour of her grandson Srikanth, son of Venkatesan. The second respondent, namely, Venkatesan, had created the situation in order to deprive the https://hcservices.ecourts.gov.in/hcservices/ plaintiff from the benefits that had accrued to him through the Will, dated 4.9.1979, marked as Ex.A-1. In fact, the funeral of Valambal was performed by the plaintiff as per Hindu law as Sethurama Iyer had pre-deceased her. This fact was admitted by the defendant in her evidence. Thus, even as per the Hindu Law, the plaintiff had performed his duties. 20. It was also contended by the learned counsel for the appellant that the cases relied on by the learned counsel for the respondents relate to the facts arising before the enactment of the Hindu Succession Act, 1956, and they may not be applicable to the present case. Whereas the facts of the present case have arisen after the passing of the said Act. 21. It was also contended that the Will, dated 4.9.1979, has been executed 13 years after the commencement of the Hindu Succession Act, 1956. The principles of social justice would not be relevant to the present case as Women's Rights were codified by a separate enactment, namely, The Hindu Adoption and Maintenance Act, 1956. Hence, the defendant who is the beneficary under the Will, dated 4.9.1979, can have only a life interest in the suit property and after her demise the plaintiff, who is her son, has an absolute interest in the suit property. 22. The succession had opened only after the testator of the Will had died in the year 1980. The family circumstances of the parties to the suit would clearly show that the defendant was sufficiently provided for and that she was leading a decent life, till she died in the year 2000. The Will, dated 4.9.1979, was not executed in recognition of any pre-existing right or in lieu of maintenance. There is no ambiguity with regard to the terms of the Will and it is clear that only a life interest has been conferred on the defendant. 23. The decision of the Supreme Court in Sadhu Singh Vs. Gurdwara Sahib Narike and others (2006(4) CTC 773) would be applicable to the present case. Thus, Section 14(1) of the Hindu Succession Act, 1956, will not be applicable to the present case. Only Section 14(2) of the said Act would apply. In such circumstances this Court ought to allow the Second appeal, setting aside the judgment and decree of the Courts below. 24. The learned counsel appearing on behalf of the respondents had contended that every Hindu female has got a right to maintenance against her husband. A Hindu male is under a legal obligation to maintain his wife even if he does not have any property. The right to maintenance is a pre-existing right and the suit property bequeathed by Sethurama Iyer to the defendant was in lieu of maintenance. The maintenance would include food, clothing, shelter, medical and other needs as well. The right to maintenance existed in the customary law and it has received a statutory recognition under the Hindu Adoption and Maintenance Act, 1956. Therefore, if a Hindu male gives a limited interest or a life estate in his dwelling house to his wife, either https://hcservices.ecourts.gov.in/hcservices/ under a Will or by any other device, it should be taken to be a recognition of her pre-existing right of maintenance. In such circumstances, the limited interest or the life estate vested in her would blossom into an absolute estate, as per Section 14(1) of the Hindu Succession Act, 1956. This proposition has been recognised by the supreme Court in its decision rendered in Mangat Mal (dead) and another Vs. Punni Devi (Smt) (Dead) and others (1995(6) SCC 88), wherein it was held as follows: "Maintenance, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing, for the course of the lady's life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Section 14(1). The Hindu Adoption and Maintenance Act defines maintenance in Section 3(d) to include "(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment." Thus a presumption can be drawn that when a Hindu male gives life interest in a property to his wife for her residence, it would necessarily enlarge into an absolute estate. The property of a Hindu male need not be an ancestral property to attract Section 14(1) of the Hindu Succession Act, 1956. The property given to the wife may be a self-acquired or a separate property of the husband as the word "property" mentioned in Section 14(1) of the Hindu Succession Act, 1956, includes all kinds of property as noted by the Supreme Court in Vaddeboyina Tulasamma and others V. Vaddeoyina Sesha Reddi (dead) by L.Rs. (AIR 1977 SC 1944), wherein it was held as follows: "......the word `any property' even without any amplification large enough to cover any or every kind of property......." It was further held as follows: "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. Sub-section (2) is more in the nature of a proviso or exception to sub-section (1). It excepts certain https://hcservices.ecourts.gov.in/hcservices/ kinds of acquisition or 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 bringing about change in the social and economic position of woman in Hindu society, it must be constured strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in sub-section (1). 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). 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 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 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." A similar view has been expressed by the Supreme Court in Mangat Mal (dead) and another Vs. Punni Devi (Smt) (Dead) and others (1995(6) SCC 88). Thus, Section 14 (1) of the Hindu Succession Act, 1956, would apply not only to ancestral properties but also to separate and self-acquired properties. 25. The learned counsel for the respondents had also contended that the pre-existing right of maintenance has received the statutory recognition by the Hindu Adoption and Maintenance Act, 1956, as held by the Supreme Court in C.Masilamani Mudaliar and others Vs. Idol of Sri Swaminathaswami swaminathaswami Thirukoil and others (1996(8) SCC 525), wherein it was held that Section 14 of the Hindu Succession Act, 1956, should be construed harmoniously, consistent with the constitutional goal of removing gender based discrimination and effectuating economic empowerment of Hindu females. Further, the object, scope and applicability of Section 14(1) of Hindu Succession Act, 1956, has been elaborately considered by the Supreme Court in Vaddeboyina Tulasamma and others V. Vaddeoyina Sesha Reddi (dead) by L.Rs. (AIR 1977 SC 1944). 26 It was also submitted by the learned counsel for the respondents that the contention of the appellant that there are no pleadings or recitals in Ex.A-1 and therefore, the life estate given to the defendant by her husband is not in recognition of her right to maintenance cannot be countenanced in view of the categorical pronouncement of the Courts below and the decisions rendered in https://hcservices.ecourts.gov.in/hcservices/ Thota Sesharathamma and another Vs. Thota Manikyamma (dead) by LRs and others (1991(4) SCC 312), E.S.R.Packirisamy Pillai V. Vijayalakshmi and another (1993(1) MLJ 105) and M.Shanmugha Udayar V. Sivanandam and others (AIR 1994 Madras 123). 27. It was further submitted by the learned counsel for the respondents that the contention of the appellant that the defendant in the suit had not stated that the limited interest in the suit property was given to her in lieu of her maintenance and therefore, Section 14(1) of the Hindu Succession Act, 1956, has no application cannot be countenanced for the following reasons i) If a Hindu male gives a life interest in the property to his wife there would be a presumption that it was given only for her maintenance, unless it is proved otherwise. Further, if a dwelling house is given to her for her residence, it would be presumed that the property was given only in lieu of maintenance. ii) The defendant had specifically stated in paragraph-3