IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 16TH NOVEMBER 2007 / 25TH KARTHIKA 1929 AFA.No. 17 of 2002 AGAINST THE JUDGEMENT AND DECREE OF THE LEARNED SINGLE JUDGE OF THIS COURT DATED 6.8.2001 IN AS.198/1991. OS.20/1990 OF SUB COURT, QUILANDY APPELLANTS: LEGAL REPRESENTATIVES OF 5TH RESPONDENT: LEGAL REPRESENTATIVES OF 5TH DEFENDANT: 1. M.P.LATHIKA, WIDOW OF V.K.RAJEEVAN, VELLACHALANKANDY HOUSE, BALUSSERY P.O., CALICUT - 673 612. 2. V.K.DHANYA, D/O. V.K.RAJEEVAN, VALLACHALANKANDY HOUSE, BALUSSERY P.O., CALICUT - 673 612. 3. V.K.DHANRAJ, S/O. V.K.RAJEEVAN, VALLACHALANKANDY HOUSE, BALUSSERY P.O., CALICUT - 673 612. BY ADV. SRI.V.V.ASOKAN RESPONDENTS: ADDL.APPELLANTS & RESPONDENTS 2,3,4,6,7,8 AND OTHER LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT: PLAINTIFF & DEFENDANTS 2, 3,4, 6, 7, 8 AND OTHER LEGAL REPRESENTATIVES OF THE 1ST DEFENDANT: 1. JAYASREE SIVANAND, DHANLAKSHMI NILAYAM, PALATHUPARAMBU, KUTHIRAVATTOM, CALICUT. 2. LATHIKA CHANDRAMOHAN, PURUSHOTHAMAN & CO: KANNUR. 3. RANGEETHA RAJESH, RAGAM, PANAYAPPALLY, COCHIN-5. 4. V.MURALEEDHARAN, KRISHNA, JAWAHAR NAGAR HOUSING COLONY, EAST NADAKAVU, CALICUT. 5. DR.JITHENDRA KUMAR, KRISHNA, JAWAHAR NAGAR HOUSING COLONY, EAST NADAKAVU, CALICUT. 6. NARESH KUMAR, KRISHNA, JAWAHAR NAGAR HOUSING COLONY, EAST NADAKAVU, CALCIUT., 7. VALSALA BALAN, W/O. LATE VALLACHALANKANDY BALAN, KRISHNA, JAWAHAR NAGAR HOUSING COLONY, EAST NADAKAVU, CALICUT. 8. V.K.YADHUNADHAN, AMARAPURI, VATTOLI BAZAR, BALUSSERY, KOZHIKODE. 9. V.K.JEEVARAJ, AMARAPURI, VATTOLI BAZAR, BALUSSERY, KOZHIKODE. 10. DAYAVATHI, M.A. COTTAGE, MAYAKKAL ROAD, MAHE. 11. V.K.HEMA, W/O. ACHUTHAN, MALAYIL HOUSE, MAKKADA,KAKKODI, KOZHIKODE. 12. V.K.AJITHA, KOMMADATH HOUSE, NADUVATTOM, ARAKKINAR, KOZHIKODE-3. 13. V.K.SARALA, THACHARAKKAL NALUKANDATHIL, ELATHUR, KOZHIKODE. 14. BABY, WIDOW OF VELLACHALANKANDY BHASKARAN AMARAPURI, VATTOLI BAZAAR, BALUSSRY, KOZHIKODE. 15. VINEETHA SIVANANDAN, AMARAPURI, VATTOLI BAZAAR, BALUSSERY, KOZHIKODE. 16. JYOTHI SURESH, AMARAPURI, VATTOLI BAZAR, BALUSSERY, KOZHIKODE. R1 TO R7 BY ADV. SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.P.GOPAL SRI.V. SIVASWAMY SRI.K.I.M. METHER SRI.A.K. JOSE SRI.JOSE JOSEPH R15 & R16 BY ADV. SRI.M.C.RATNAKARAN THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 15/11/2007, THE COURT ON 16/11/2007 DELIVERED THE FOLLOWING: C.M.P.NO.1409/2002 IN A.F.A.NO.17/2002 DISMISSED SD/- P.R.RAMAN, JUDGE 16/11/2007 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ P.R.RAMAN & K.T.SANKARAN,JJ. ---------------------------------------------------- A.F.A. NO. 17 OF 2002 ---------------------------------------------------- Dated this the 16th November, 2007 JUDGMENT SANKARAN, J. The question of law involved in this appeal is whether the donee to whom immovable property was gifted along with her three sons, with a condition that she would have a life estate, is entitled to claim the protection under Section 14(1) of the Hindu Succession Act; or whether it would come under Section 14(2) of the said Act. 2. The AFA arises out of a suit for partition in respect of eleven items of immovable properties. The appellants herein are the legal representatives of defendant No.6. The plaintiff and defendants 1 and 2 are the children of Kumaran Vaidyar and Janaki. Defendants 5 to 9 are the legal representatives of the first defendant. Defendants 3 and 4 are the legal representatives of the second defendant. Kumaran Vaidyar died on 8.8.1967 and his widow Janaki died on 6.8.1991. Item Nos.1 and 2 admittedly belonged to Kumaran Vaidyar. In this appeal, we are concerned with only item Nos.1 and 2. Item Nos.3 to 8 belonged to Janaki, the mother of the plaintiff and defendants 1 and 2. Item Nos.9 to 11 belonged to Kumaran Vaidyar. Plaintiff claimed a one-third share in the plaint schedule properties. The trial court passed a preliminary decree for partition in respect of item Nos.9 to 11. On appeal by the plaintiff, a learned single A.F.A. NO.17 OF 2002 :: 2 :: Judge of this Court in modification of the preliminary decree passed by the court below passed a decree granting one-third share to the plaintiff in item Nos.1, 2 and 9 to 11. 3. Item Nos.1 and 2 and another item of immovable property were gifted by Kumaran Vaidyar as per Ext.A1 gift deed, dated 28.4.1961. According to the plaintiff, the gift was in favour of Janaki and her children together, with a life estate in favour of Janaki in respect of item Nos.1 and 2 in the gift deed (which are item Nos.1 and 2 in the plaint schedule). According to the contesting defendants, item Nos.1 and 2 were gifted by Kumaran Vaidyar to Janaki and item No.3 in the gift deed was gifted in favour of the plaintiff and defendants 1 and 2. The defendants contended that Janaki had absolute title over item Nos.1 and 2 and that there was no creation of a life estate in her favour. 4. In respect of item No.3, there was an earlier suit for partition as O.S.No.82 of 1980, filed by the present plaintiff. The defendants therein, who are defendants 1 and 2 in the present suit, set up an oral partition as a defence. That contention was not accepted and the suit was decreed by the trial court, which was confirmed by this Court in Ext.A4 judgment, dated 24.1.1990. In Ext.A4 judgment, the High Court found that as per the gift deed, dated 21.4.1961, three items of immovable properties were gifted by Kumaran Vaidyar in favour of his wife Janaki and their three children. It A.F.A. NO.17 OF 2002 :: 3 :: was also found that in respect of item Nos.1 and 2 in the gift deed, a life interest was granted to Janaki. 5. In the appeal against the preliminary decree in the present suit, namely, O.S.No.20 of 1990, the learned single Judge held that Janaki did not get any absolute right over item Nos.1 and 2 as per Ext.A1 gift deed and she had only a life estate. The learned single Judge also took note of the appellate judgment in respect of O.S.No.82 of 1980 (Ext.A4) and it was held that even assuming that Ext.A4 would not operate as res judicata, it would operate as a judicial precedent. 6. The contesting defendants had put forward a contention that there was an oral partition among the parties. They also put forward a contention that Janaki had executed a registered Will dated 13th July, 1979 (Ext.B1). As per the Will, the plaint item Nos.3 and 4 came to vest in the first defendant and items Nos.5 and 6, in the second defendant. It was also contended that item Nos.7 and 8 were bequeathed by Janaki in favour of defendants 3 and 4. The trial court found that the case of oral partition set up by the defendants is not true. Ext.B1 Will was found to be genuine by the trial court. On appeal, the learned single Judge confirmed the finding of the trial court as regards Ext.B1 Will. It was also held that item Nos.1 and 2 are partible. A.F.A. NO.17 OF 2002 :: 4 :: 7. Sri.Mayankutty Mather, learned counsel for the appellants, put forward two contentions. They are the following: (1) As per Ext.A1 gift deed, an absolute estate was created in favour of Janaki and, therefore, item Nos.1 and 2 are not parible, as she had disposed of her rights therein under Ext.B1 Will, and (2) Even if the first contention is not accepted, it could certainly be found that the properties were gifted to Janaki under Ext.A1 in lieu of maintenance and, therefore, Section 14(1) of the Hindu Succession Act would apply. 8. Sri.P.G.Parameswara Panicker, learned senior counsel appearing for the first respondent/plaintiff contended that on a proper interpretation of Ext.A1, the finding of the learned single Judge that only a life estate was created in favour of Janaki, could be sustained. He submitted that Section 14(1) of the Hindu Succession Act does not apply at all as there was no pleading that item Nos.1 and 2 were allotted to Janaki in lieu of maintenance and that this contention is put forward for the first time in this appeal. He also submitted that Section 14(1) would not apply at all and Section 14(2) would clearly apply in the case. 9. We shall consider the points referred to above together. 10. On a careful consideration of the recitals in Ext.A1, we are of the view that no absolute estate is created in favour of Janaki. She was given A.F.A. NO.17 OF 2002 :: 5 :: a right to possess and enjoy item Nos.1 and 2 during her life time. Therefore, Janaki could not have disposed of by way of Will, the title in respect of item Nos.1 and 2. As held by the learned single Judge, the intention of the donor was also to confer a life interest in favour of Janaki. We agree with the reasoning and conclusion made by the learned single Judge on this point. 11. There is no case for the defendants in their pleadings that item Nos.1 and 2 were allotted to Janaki in lieu of maintenance and, therefore, Section 14(1) of the Hindu Succession Act, 1956 would apply. No such contention was put forward by the defendants before the learned single Judge as well. 12. For the sake of convenience, Section 14 of the Hindu Succession Act is extracted 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, 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 A.F.A. NO.17 OF 2002 :: 6 :: 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 a restricted estate in such property.” 13. Sri.Mayankutty Mather relied on the decisions reported in Vaddeboyina Tulasamma and others v. Vaddeboyina Sesha Reddi (AIR 1977 SC 1944 = (1977) 3 SCC 99), Shakuntla Devi v. Kamla and others (2005) 5 SCC 390, Jose v. Ramakrishnan Nair (2003(3) KLT 999), Balwant Kaur and another v. Chanan Singh and others ((2000) 6 SCC 310), Pachu v. Chirutha (2003 (1) KLT 241) and (1978 Madras 21). 14. Sri.P.G.Parameswara Panicker relied on the decisions reported in Gumpha and others v. Jaibai ((1994) 2 SCC 511), F.M.Devaru Ganapathi Bhat v. Prabhakar Ganapathi Bhat ((2004) 2 SCC 504) and Kunji Thomman and others v. Meenakshi and others (AIR 1970 Kerala 284). 15. In Vaddeboyina Tulasamma and others v. Vaddeboyina Sesha Reddi (AIR 1977 SC 1944 = (1977) 3 SCC 99), the Honourable Supreme Court considered the scope and ambit of Section 14 of the Hindu Succession Act. In that case, a Hindu widow claimed maintenance out of A.F.A. NO.17 OF 2002 :: 7 :: the joint family properties of her deceased husband in the hands of his brother. The suit was decreed in favour of the widow. In execution of the decree, a compromise was arrived at between the parties and properties were allotted to the widow for her maintenance. She was granted limited interest in such properties and the allotment was in lieu of maintenance. As per the terms of the compromise, on the death of the widow the properties were to revert to the plaintiff in the subsequent suit. The widow leased out certain items and sold certain other items. The reversioner filed the suit for a declaration that the alienations made by the widow were not binding on the plaintiff. The Supreme Court held as follows: “.. It will, therefore, be seen that sub-sec.(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.” The Supreme Court also held that Section 14(2) is more in the nature of a proviso or exception to sub-section (1). It was further held thus: “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. 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”.” A.F.A. NO.17 OF 2002 :: 8 :: The Supreme Court also considered the Hindu Succession Bill, 1954 and the inclusion of gift and Will in Section 14(2) of the Act, which was not available in the Bill. Taking note of this, the Supreme Court further held: “.. This circumstance would also seem to indicate that the legislative intendment was that sub-section (2) should be applicable, only to cases where acquisition of property is made by a Hindu female for the first time without any pre- existing right – a kind of acquisition akin to one under gift or will. 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.” 16. In Tulasamma's case the Supreme Court also held as follows: “But where property is acquired by a Hindu female under an instrument for the first time without any pre-existing right solely by virtue of the instrument, she must hold it on the terms on which it is given to her and if what is given to her is a restricted estate, it would not be enlarged by reason of sub- section (2). ..... It is, therefore, clear that under the Sastric Hindu Law a widow has a right to be maintained out of joint family property and this right would ripen into a charge if the widow takes the necessary steps for having her maintenance ascertained and specifically charged on the joint family property and even if no specific charge is created, this right would be enforceable against joint family property in the hands of a volunteer or a purchaser taking it with notice of her claim. The right of the widow to be maintained is of course not a jus in rem since it does not give her any interest in the joint family property but it is certainly jus ad rem, i.e., a right against the joint family property. Therefore, when specific property is allotted to the widow in lieu of her claim for maintenance, the allotment would be in satisfaction of her jus ad rem, namely, the right to be maintained out of the joint family property. It would not be a grant for the first time without any pre-existing right in the widow. The widow would be getting the property in virtue of her pre-existing right, the instrument giving the property being merely a document A.F.A. NO.17 OF 2002 :: 9 :: effectuating such pre-existing right and not making a grant of the property to her for the first time without any antecedent right or title.” In Tulasamma's case, Justice Fazal Ali in His Lordship's separate judgment summarized the legal conclusions at paragraph 70 in AIR (paragraph 62 in SCC). Sub-paragraphs (3) and (4) therein are as follows: “(3) Sub-section (2) of S.14 is in the nature of a proviso and has a field of its own without interfering with the operation of S.14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by S.14(1) or in a way so as to become totally inconsistent with the main provision. (4) Sub-section (2) of S.14 applies to instruments, decrees, awards, gifts etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-existing rights. In such cases a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub- section has absolutely no application and the female's limited interest would automatically be enlarged into an absolute one by force of Section 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-s.(2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee.” 17. In Shakuntla Devi v. Kamla and others (2005) 5 SCC 390 and Balwant Kaur and another v. Chanan Singh and others (2000) 6 SCC 310, the Supreme Court followed the decision in Tulsamma's case. In A.F.A. NO.17 OF 2002 :: 10 :: Balwant Kaur's case the recitals in a Will in favour of the widowed daughter of the testator making provision for maintenance by allotting properties were under consideration. It was stipulated that after the death of the widowed daughter the properties would revert to the testator's brothers or their legal heirs. The Supreme Court held that the widowed daughter had a right under the Hindu Adoptions and Maintenance Act, 1956 to claim maintenance from her father and therefore, the allotment under the Will was in recognition of a pre-existing right in the widowed daughter. It was held that Section 14(1) of the Hindu Succession Act would apply. The Supreme Court held as follows: “It is easy to visualise that if the testator had created a life interest to the extent of 1/3rd of his property in favour of his maidservant or a female cook who might have served him during his lifetime, then such female legatees could not have claimed benefit of Section 14(1) and their claim would have been confined only to Section 14(2) as they would not have any pre-existing legal right of maintenance or dependency qua the estate of the deceased employer but Appellant 1, as a destitute widowed daughter of the testator, stands on entirely a different footing. The Will in her favour does not create for the first time any such right as might have been created in favour of a maidservant or a cook. In fact, the Will itself recognises her pre-existing right in express terms and provides that even after his death, his other legatee brothers have to look after the welfare of his widowed daughter. Under these circumstances, Section 14(1) can legitimately be pressed into service by the learned Senior Counsel for the appellants on the basis of legal right flowing to her under the relevant provisions of the Maintenance Act. Once that conclusion is reached, the result becomes obvious.” 18. In C.Masilamani Mudaliar and others v. The Idol of A.F.A. NO.17 OF 2002 :: 11 :: Sri.Swaminathaswami Swaminathaswami Thirukoli and others (AIR 1996 SC 1697), the question considered was whether an alienation made by a widow to whom properties were bequeathed so as to provide maintenance was legal or not. It was held by the Supreme Court that Section 14(1) of the Hindu Succession Act would apply and that Section 14 (2) would not apply. To quote: “28. The legatee Sellathachi had right to maintenance under the Hindu Adoption and Maintenance Act when the property was given to her for maintenance. It must be in lieu of her pre-existing right to maintenance and the property given under the will, therefore, must be construed to have been acquired by the legatee under the will in lieu of her right to maintenance. That right to maintenance to a Hindu female received statutory recognition under the Hindu Adoption and Maintenance Act, 1956. She is entitled to realise maintenance from property of her husband and even in the hands of strangers except the bona fide purchasers for value whether notice of her right she is equally entitled under Section 37 of the Transfer of Property Act to have charge created over the property for realisation of her maintenance. On the demise of the testator, she being the class – I heir but for the bequeath, is entitled to succeed as an absolute owner. In either of those circumstances, the question emerges whether she acquires a limited right under Section 14(2) for the first time under the will. In the light of the facts and circumstances of the case and the legal setting, we are of the considered view that she having had under Sastric law, as envisaged in the will, the properties in recognition of her pre- existing right to maintenance, it is not a right acquired for the first time under the instrument will, but it is a reflection of the pre-existing right under the Sastric law, which was blossomed into an absolute ownership after 1956 under Section 14(1) of the Act.” 19 In Gumpha and others v. Jaibai ((1994) 2 SCC 511), the last male holder in the family, who had two wives, executed a Will in favour of A.F.A. NO.17 OF 2002 :: 12 :: his wives for life and after their lives, to the only daughter. One of the widows executed a Will in favour of a stranger. The question was whether the widow could validly execute a Will and whether she had only a limited estate. The Supreme Court held that the widow had only a limited estate and Section 14(2) of the Act would apply. It was held thus: “... That the legislature was aware of the unrestricted power of a Hindu to dispose of his property in any manner he considered proper subject to such restrictions as were operating in different schools is clear from sub-section (2) of Section 14. It does not curtail or erode the absolute estate which comes into operation by law but excludes from it specifically the property acquired in the manner mentioned therein. That is if any property is acquired by a female Hindu as provided in sub-section (2) then it would be beyond the purview of sub-section (1). Reason for it was that the legislature never intended to confer larger estate on females than on males. If a Hindu could bequeath his property of which he was capable of and could create life interest or restricted estate for a male it would have been incongruous to create an absolute estate in favour of female. Sub-section (2) of Section 14 was read as proviso or exception to sub-section (1) so that it may impinge as little as possible on the broad sweep of the ameliorative provision contained in sub-section (1). In Tulasamma it was observed that, 'it cannot be construed in a manner which would rob sub-section of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub-section (1)'. True it is an exception to sub-section (1) and should be read in such a manner as not to rob sub-section (1), 'of that modicum of certainty