V. KALYANASWAMY (D) BY LRS. & ANR. versus L. BAKTHAVATSALAM (D) BY LRS. & ORS.
[2020] 9 S.C.R. 619, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Issues
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R. Krishnammal, the widow. She would say that the properties described
in Schedule-I, fell to the share of her husband in the partition and he has
separate possession. The properties which were self-acquired by him
were in Schedule-IA. Thereafter, she referred to the proceedings under
Section 145. In paragraph-10, R.Krishnammal averred that the possession
of the defendants in Schedule-I and IA is unlawful and that she is entitled
to succeed on either footing and recover possession of either Schedule-
I and IA properties or moiety of the properties in Schedule-I, IA and II.
There is a reference to a receiver appointed during the proceedings
under Section 145. In paragraph 17, it is averred inter alia that the
cause of action arose on or about June, 1955, when defendants 1 to 4
unlawfully trespassed on the properties and on 16.04.1956, when Revenue
Divisional Officer, Coimbatore upheld the possession of R.V. Lakshmiah
Naidu and his sons. In the application under Order XXIII Rule 3 filed in
O.S. No. 71 of 1958, it is inter alia stated as follows:-
“Whereas on the death of Rangaswami Naidu on 01.06.1955, the
executor could not take possession of the properties……..”
172. In Gummalapura Taggina Matada Kotturuswami v. Setra
Veeravva and others74, a Bench of three learned Judges, interpreting
the word ‘possessed’, laid down as follows:
“11. … Of course, possession referred to in Section 14 need
not be actual physical
possession or personal occupation of the
property by the Hindu female but may be possession in law. The
possession of a licensee, lessee or a mortgagee from the female
owner or the possession of a guardian or a trustee or an agent of
the female owner would be her possession for the purpose of
Section 14. The word “possessed” is used in Section 14 in a broad
sense and in the context possession means the state of owning or
having in one’s hands or power. It includes possession by receipt
of rents and profits”. The learned Judges expressed the view that
even if a trespasser were in possession of the land belonging to a
female owner, it might conceivably be regarded as being in
possession of the female owner, provided the trespasser had not
perfected his title. We do not think that it is necessary in the present
case to go to the extent to which the learned Judges went. It is
sufficient to say that “possessed” in Section 14 is used in a broad
74AIR 1959 SC 577
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sense and in the context means the state of owning or having in
one’s hand or power. In the case of Gostha Behari v. Haridas
Samanta [AIR 1957 Cal 557, 559] P.N. Mookherjee, J. expressed
his opinion as to the meaning of the words “any property possessed
by a female Hindu” in the following words:
“The opening words in “property possessed by a female
Hindu” obviously mean that to come within the purview of the
section the property must be in possession of the female concerned
at the date of the commencement of the Act. They clearly
contemplate the female’s possession when the Act came into force.
That possession might have been either actual or constructive or
in any form recognized by law, but unless the female Hindu, whose
limited estate in the disputed property is claimed to have been
transformed into absolute estate under this particular section, was
at least in such possession, taking the word —possession” in its
widest connotation, when the Act came into force, the section
would not apply.”
     In our opinion, the view expressed above is the correct view
as to how the words “any property possessed by a female Hindu”
should be interpreted. …”                           (Emphasis supplied)
173. In Eramma (supra), this Court has made it clear that Section
14(1) of the Hindu Succession Act does not confer title on a mere
trespasser. It does not confer any right on a person possessing property
without any vestige of title. We have made these remarks in the
context
of the following set of circumstances:
Following the death of her husband on 01.06.1955, there are two
streams providing right to make a claim over the property in favour of R.
Krishnammal, when the Hindu Succession Act came into force. Under
the Will, she was conferred with a life estate. If the Will is treated as
non-existent or invalid, then, again there can be two situations. Her case
would fall to be covered either under Section 3(1) or 3(2) of the Hindu
Women’s Right to Property Act, 1937 depending on whether the property
was separate property of V. Rangaswami Naidu or an interest in the
Joint Hindu Family Property. She was also having a right to be
maintained.Therefore, in the facts of this case in view of the finding that
the properties bequeathed under the Will and which are the plaint
scheduled properties are not the separate properties of Rangaswamy
Naidu,  She would have the right to the properties under Section 3(2) of
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
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the 1937 Act. This we observe for the reason that when the Hindu
Succession Act came into force, R. Krishnammal had lost her tussle
under the proceedings under Section 145 of the CrPC. We have also
seen the nature of the pleading which she made in O.S. No. 71 of 1958.
She specifically states it that she is entitled to recover possession of the
property. No doubt, she does aver that she is entitled to treat herself as
in joint possession. We may however notice the decision in Kotturuswami
case (supra), in fact, came to be considered by another three Judge
Bench of this Court in Mangal Singh and Others v. Smt. Rattno (Dead)
by her legal representatives and another reported in AIR 1967 SC
1786. Therein, this Court held as follows:-
“It was urged on behalf of the appellants that, in order to attract
the provisions of S.14(1) of the Act, it must be shown that the
female Hindu was either in actual physical possession, or
constructive possession of the disputed property. On the other
side, it was urged that even if a female Hindu be, in fact, out of
actual possession, the property must be held to be possessed by
her, if her ownership rights in that property still exist and, in exercise
of those ownership rights, she is capable of obtaining actual
possession of it. It appears to us that, on the language used in
S.14(1) of the Act, the latter interpretation must be accepted.”
Noticing Section 14 (1) of the Act and that it
covered property
possessed by a female Hindu whether acquired  before or after the
commencement of the Act the Court  proceeded to explain the
circumstances in which the decision in Kotturuswami case (supra) was
rendered. And thereafter the Court laid down as follows:
“…The Court was not laying down any general principle that
S.14(1) will not be attracted at all to cases where the female
Hindu was not possessed of the property at the date of the
commencement of the Act. In fact, there are no words used in
S.14(1) which would lead to the interpretation that the property
must be possessed by the female Hindu at the date of the
commencement of the Act. It appears to us that the relevant date
on which the female Hindu should be possessed of the property in
dispute, must be the date on which the question of applying the
provisions of S.14(1) arises. If, on that date, when the provisions
of this Section are sought to be applied, the property is possessed
by a female Hindu, it would be held that she is full owner of it and
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not merely a limited owner.  Such a question may arise in her own
lifetime, or may arise subsequently when succession to her
property opens on her death. The case before us falls in the second
category, because Smt. Harnam Kaur was a limited owner of the
property before the commencement of the Act, and the question
that has arisen is whether Smt. Rattno  was entitled to succeed to
her rights in this disputed property on her death which took place
in the year 1958 after the commencement of the Act….”
In fact, we notice that this decision was not referred to by the two
Judge Bench which rendered the decision in Sadhu Singh (supra).
However, we find that it has been adverted to in AIR 1996 SC 172 (see
para 14) and a very recent judgment of this Court in Shyam Narayan
Sigh and Ors. vs. Rama Kant Singh and Ors. reported in 2018(1)
RCR (Civil)981 rendered again by a Bench of two learned Judges.
Therein, this Court held inter alia as follows:
“In other words, all that has to be shown by her is that she had
acquired the property and that she was ‘possessed’ of the property
at the point of time when her title was called into question”.
In view of the dicta in Mangal Singh (supra), we feel reassured
of our view that Section 14(1) applies.
174. Incidentally, we may notice what DW1, the witness on behalf
of the appellants-legatees himself says:
“..When Cr.PC 145 proceedings was conducted the properties
were handed over to Latchumaiah and his sons by the receiver.
From that onwards the properties are under their possession till
today. We never being in the possession of the properties.”
CIVIL APPEAL NOS. 1045-1050 of 2013
175. The appellants claim on the basis of sale deeds executed by
A. Alagiriswami, who is the First Defendant in both the Suits. The case,
which is sought to be set-up is that, there was a partition among the
Legatees of the plaint schedule properties and the properties purchased
by them, was among the properties allotted to the First Defendant. Their
entire case is based on A. Alagiriswami having rights in the property.
We have already come to the conclusion that A. Alagiriswami has no
rights, for the reasons which we have given. The arguments based on
the compromise Decree in O.S. No. 71 of 1958, barring the Lakshmiah
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]
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branch from questioning the partition or the Will, cannot be upheld. Insofar
as we have held that R. Krishnammal had become the absolute owner
under Section 14(1) of the Hindu Succession Act, and having regard to
the compromise Decree in O.S. No. 71 of 1958 by which she had given-
up all her rights in favour of the respondents, no right vested with A.
Alagiriswami which he could have passed to the appellants. The plaintiffs
in O.S. No. 649 of 1985, having sought a declaration of their right, and
which they were entitled to. The contention that there was no challenge
to the saledeeds, may not advance the case of the appellants. We have
noticed what DW1,A. Alagiriswami, one of the Legatees has deposed
regarding possession. In fact, as already noted, the appellants did not
challenge the Decree of the Trial Court and they were apparently sailing
along with the appellants who were the Legatees under the Will. We
see, therefore, no merit in their case.
176. In regard to the other Appeals, we do not find any merit in
view of our findings and the issues which fell for consideration.There is
no merit in any of the appeals. Consequently, all the appeals will stand
dismissed. There will be no order as to costs.
Divya Pandey
Appeals dismissed.