MUNINANJAPPA AND ORS.

R. MANUAL AND ANR.

APRIL, 11, 200 I

[A.P. MISRA AND U.C. BANERJEE, J.l.]

Hindu I.aw:

Hindu Succession Act, 1956: Section 14(1).

Female llindu-Pmpe1ty of-Rights in-Absolute or limited-Suit properly bequeathed to plaintiff and his brother for enjoyment during their lifetime tvithout any right of alienation-Will also stipulated that in case a son lvere bon1 to them such son 1vould be a full 01vner1vith right of alienation-flo1veve1;

the brother died 1vithout any male issue-1Vidow had no pre-existing right of maintenance out of her husband's pITiperty-Thereafler, ividolv executed a sale D deed in favour of the defendants-Validity of-Held: Both the bmther and his lvidoiv held the prope1ty, irt trust, for delive1y to their son in case bani out of their lVedlock-Such a lilnired right of the tvido1v can never mature into an absolute right /Jy virtue of S. 14( I )-However, such a limited right can mature into absolute right only 1fthe ivido\v has any pre-existing right of maintenance out of her husband's pmperty-Thereafter, the widow has no right to alienate the pmpe1ty in favour of the defendants-Hence, sale of property in.favour of the defendants is not valid-Succession Act, 1925, Ss. 112 and 115.

Will-Construing of-Intention of testator-Determination of-Principles-Held: In construing a Will the intention ft he testator shoald be can-ied out-Thenfore, diffeirnt pa11s of the \Viii should be cnstrued hmmonio11sly- Cou1t may supply the missing words in a Will to implement the intention of the

testa101~But, where there is no ambiguity and the language of a Will is cleai;

C'ou11 should neither supplement the ivords nor read it down to give benefit to either of the contesting parties.

The appellant-plaintifrs aunt had bequeatlted the suit property in favour of both the appellant and his brother G, who was the son of the second wife of the appellant's father. Under the Will the property was bequeathed to the appellant and G for enjoying it during their lifetime without any right of alienation. The Will also stipulated that in case a son 1113

were born to them such son would be the full owner with a right of alienation. However, G died without any male issue.

Subsequently, G's widow sold the suit property to respondents-defendants through a registered sale deed. As a consequence of this the respondents filed a petition for eviction of the appellant. The appellant, therefore, filed a suit for declaration that the sale deed executed by G's widow in favour of the respondents was not binding on him, as she bad no right to sell the same. The trial court decreed the suit. The High Court dismissed the appeal filed by the appellant on the ground that G's widow had become an absolute owner of the suit property under Section 14(1) of the Hindu Succession Act, 1956. Hence this appeal.

On behalf of the appellant it was contended that the Will gave a limited right to both the appellant and G; that if G himself had a limited right it could not mature into full right in his favour or in favour of his 'vidow; and that G's widow had no right to execute the impugned sale D deed.

On behalfof the respondents it was contended that the interest of the testatrix should be taken into account in construing a Will; that even if words were missing in the Will the Court should supply the missing words to subserve the intention of the testatrix; that even if G had a limited right, after his death, his \\idow's right in lieu of maintenance out of any estate of her husband would mature into full right by virtue to Section 14(1) of the Act and, therefore, G's widow was competent to execute the impugned sale deed.

The following arose before this Court :

(a) Whether the right given to G, the benefactor under the Will, was a limited right?

(b) IfG had limited right, whether his widow could get absolute right G under Section 14(1) of the Hindu Succession Act, 1956 to execute the impugned sale deed in favour of respondents Nos. 1 and 2?

Allowing the appeal, the Court

HELD: 1.1. ltis well settled that while construing a Will the inten- H tion of the testator should be carried out. Keeping this in view, different

....

MUNINANJAPPA v. R. MANUAL 1115

parts of the Will should he construed harmoniously. The Courts should A " not reject any part of the Will as being a surplusage, as the testator could not have intended to make any bequest in the Will as an exercise in futility. In doing so, if necessary, the Court may read down the language of a part of the Will to give full effect to the general words of the other part of the Will. [1122-B-C] B

Smt. Pramod Kumari Bhatia v. Om Prakash Bhati, [1980] 1 SCC 412, relied on.

Raghbir Singh v. Budli Sing/~ Am (1978) Del. 86, approved. c 1.2. But, in a given case, the court may supply the missing words and in some other case the court may read the language of the Will in order to implement the intention of a testator. However, where the language and the words of a Will are clear, there is no ambiguity, which contd be understood clearly without any doubt, then it would not be proper to either supple- D ment the words or read it down to give benefit to either of the contesting parties. [1122-D]

1.3. In the present case, the language of the Will is clear and unambiguous. Thus to find out the intentions of the testatrix, no supplementing or reading down any word is necessary. The testatrix bequeathed her E property to her brother's sous, namely, one from the first wife i.e. the plaintiff, and the other from the second wife i.e. G. To both she clearly records in no uncertain words that they would have a limited right with no right to alienate. She also clearly records that in case a son is born to them they would get absolute right including right to alienate. [1122-E-F] F

2.1. The limited right of G cannot be interpreted by any stretch of language that the testatrix intended to give absolute right to G or to his Widow. They were to bold the property for delivery to the son, in case, born out of their wedlock. In no case the widow's right over the property would mature into absolute right by virtue of Section 14(1) of the G

Hindu Succession Act, 1956. Her right could only mature as such, if her claim could be based on any of her pre-existing rights including a

right in lieu of maintenance out of her husband's prop_erty. But in no case would it mature into full right where the property is held by her husband either in trust for the benefit of other or as limited and restricted H

A owner with no right to alienate. Hence even if the widow continued to enjoy the property after the death of her husband, she held the property, at x

the most, in the same capacity as her husband but not to claim it towards her right of maintenance. If the husband had any other property apart from what was gifted by the testatrix, she could claim her above right

B under Section 14(1) of the Act, but not over the property given to her husband Gas a limited owner. (1123-B-D]

V. Tulasamma v. Sesha Reddy (Dead) by Lrs., (1977] 3 SCC 99 and Velamuri Venkata Sivaprasad (Dead) by Lrs. v. Kothuri Venka/eswarlu (Dead) by Lrs., [2000] 2 SCC 139, relied on. c 2.2. By no stretch of interpretation it could be said G's widow was possessed of the suit property in lieu of her any pre-existing right. When a widow claims her right under Section 14(1) of the Act in the hand of either coparcener or male issue of her deceased husband, it is because of her pre-

D existing right of maintenance to the extent of her husband's share in a joint family property. She cannot claim any such right out of the share of the other coparcener in which there is no trace of her husband's share. So when a limited right as spoken of with reference to the husband's right in the joint Hindu family property, it only means limited to the extent of the husband's share. (1124-C] E Ram Kali (Smt.) v. C/wudlzri Ajit Shankar, [1997] 9 SCC 613; Kalawatibai

v. Soiryaba~ (1991] 3 SCC 410 and N. Appaya Udayan v. Nallamma4 AIR

(1949) Mad. 24, held inapplicable.

F 2.3. In the case of a husband's right in the joint family property, even though limited, he has a right to seek partition or a right to transfer to the extent of his share, which G could not enjoy in the restrictive right under the Will. In other words, G could neither seek a right of partition nor transfer his such right to any one else. [1125-F]

3. The Will grants toG a limited and restrictive right and in no case does it mature into a full right. G's widow did not inherit the suit property from her husband nor possessed it in lieu of maintenance. Hence, question of its maturing into full right under Section 14(1) of the Hindu Succession )..

Act does not arise. Thus, G's widow had no right to alienate the suit

H property and, therefore, the sale of the suit property in favour of respond-

MUNlNANJAPPA v. R. MANUAL [MISRA, J.] 1117 -

ents Nos. 1 and 2 cannot be held to be valid. (1126-B) A

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9147 of 1996.

From the Judgment Order dated 19.6.95 of the. Kamataka High Court in R.F.A. No. 42 of 1994.

Rajesh Mahale, Raghavendra Srivastava for R.C. Kolhi for the Appel- B

I ants.

S.N. Bhat for the Respondents.

The Judgment of the Court was delivered by c

MISRA, J. In spite of expertise io drafting a Will, the testators infusiog his iotentions io it, the struggle for a claim under it remained unabated, the

tug of war between the two claimants under it has been the cause of issue before the courts from its very inception. The strong desire to succeed, even for wrongful claims, has led such claimants to split and ioterpret, even simple D words and clear iotentions ioto two possible interpretations. That is why court has to exercise and ioterpret a Will with circumspection and caution io order to give thrust to the true intentions of a testator.

This appeal also raises similar question of the interpretation of a Will 'tand consequently the right of a widow of a benefactor under the Will. The E questions raised are :

(a) Whether the "right given to Guruswamy, the benefactor under the Will dated !st June, 1942 was a limited right.

(b) If Guruswamy had a limited righ~ whether his widow Sevamma F could get absolute right under Section 14(1) of the Hindu Succession Ac~ 1956 to execute the impugned sale deed io favour of respondent nos. I and 2.

In order to appreciate the controversiea and to answer the aforesaid two G questions, we are hereunder giviog short matrix of facts which are essential for the disposal of this appeal.

>' The following Genealogical Table showiog the relationship inter se between testatrix Poovamma and the beneficiaries tinder the Will is given as

under: H

Revalappa

Muniyamma = Lakshmaiah = Vellamma (First Wife) (Second Wife)

.....

[2001] 2 S.C.R.

Poovamma

Textatrix

Muninanjappa (Plaintifi)

Guruswarny=Sevamma(widow) (Defendant no. 3)

. '

The suit was filed by the plaintiffs-appellants for declaration that the sale deed execnted by defendant no. 3 Sevamma, widow of a,;;,,.warny in favour of defendant-respondent nos.l and 2is not binding on them as she had no right to" sell the same, hence defendant nos. 1 and 2 cannot derive any right, title or interest over the suit property by virtue of the said sale deed.

Poovamma was the original owner of the suit propercy which is not in dispute.

D. The plaintiffs lost his father Lakshmaiah. the_ brother of Poovamma-when he . was four years old and was lookedafter by Poo".amma. Guruswarny the brother of plaintiff born from the' second wifealsojcame nnder the care of . . Poovamma. Defendant no.3 Sevamma is the widow of Guruswarny. The case of plaintiffs-appellants is, nnder the aforesaid registered Will dated 1st June, 1942 Poovarnnia bequeathed the suit property in favour of both plaintiff and Guruswarny. Under the Will none of the legatees; the benefactor nnder the Will gets any right to alienate any part of the suit property hence Gu.-uswarny and his widow Sevamma. could at best have life interest without any right of alienation. Thus the property bequeathed, after the death of both, namely,

Guruswamy and his widow Sevamma reverts back to the plaintiff. 1n spite of this limited right, Sevamma sold !his property to defendant nos. 1 and 2 (reSi>olldent nos. 1 and 2 this CoUrt) on 4th September, 1980 through a registered sale deed. As a consequence of this respondent nos. 1 and 2 filed petition for plaintiff's evictioll. This led to the filing of the present suit by the plaintiffs-appellant as aforesaid. The case set up by respondent nos.· 1 and 2 is that after the death of Guruswarny his widow Sevamma became absolute owner by virtue of Sections 13 and 14 of the Hindu Succession Act and hence . alienation of this property, through fue said sale deed is valid: Defendant no. 3 Sevamma supported the case of respondent nos. i and 2 and further said tliat after the death of her husband she wa8 in possession of the suit property, which wa8 ill lieu f her 'right of maintenance, thus by virtue of Sections 13 and 14 of the Hindu s,; ccession kt she became abwlute owner

' "

MUNINANJAPPA v. R. MANUAL [MISRA, J.]

after her husband's death on 23rd August, 1970. '

 The trial court came to the conclusion, ,:., hile interpreting° the aforesaid Will, that the suit property was bequeathed to Guruswamy for enjoying it during his life time without auy right of alienation. In case a son is born to. him, such son would be the full owner, with a right of alienation. However, Guruswamy died without auy male issue. Thus the. question which came for consideration was, whether after the death of Guruswamy, his widow could succeed to this property in lieu of maintenaJ:lce, which could mature into full owner under the Hindu Successio~ Act, if not, whether the impugned sale deed would be void aud this property would reverts back to the plaintiff (Muninanjappa) the only sUIViving heir. The trial court concluded that the . testatrix intention under. the Will was to bequeath the suit property to the hrauch of Guruswamy exclusively though with life interest to Guruswamy.

The reason for this is because of the absence of recording in the Will after the death of Guruswamy aud his widow, the suit property would revert back to the plaintiff. The trial court finally concluded that the.branch of Guruswamy aud of plaintiff's would become absolute owner of the suit property bequeathed to them. Thus the widow being the only hir of the Guruswamy braoch would succeed to the said property under S<f tion 8 of the Hindu Succession Act as she. falls Under class I category of the schedul~. It further held. Section 14(2) of the Hindu Succession Act has no application. Thus the sale deed in qiiestin cannot be held to be illegal, so dismissed the plaintiff's suit Aggrieved by this the plaintiff-apPellaut filed appeal before the High Court which was also dismissed in which it is held :

"As far as the first aspect of the matter is concerned. I need to observe that the learned trial Judge has relied on the provisions of S. 14 of the Hindu Succession Act Admittedly the property was not inherited by Sevamma in h_er own right. What was contended on her behalf was that on the death of her husband. she was the sole sUIViving heir of Guruswamy aud that consequently the property which constituted his estate devolved on her but the supportive reason for this was that being the wife of Gum5wamy she had the absolute right of claiming maintenance aud that by virtue of the proviso to s. 14 on the ground. principally that she was entitled to maintenance, the property did come. to her .

.•... The respondents' learned advocate has seriously contested this position because he points out that by virtu:. of operation of

S. 14, regardless of provisions of S. 14 (2) that on the facts of the present case, Sevamma had become the absolute owner. I have already held that it is impossible to read into the will any limitation vis-a-vis the alienation of this property and under these circumstances, the provisions of S. 14 (2) would not come into operation. Under these circumstances for very good reasons the legislatnre has provided that a Hindu wife will acquire absolute rights in respect of the . property of her husband. When the law uses the word 'absolute', it envisages the freedom or liberty to deal with those properties in whatever manner the holder deems fit.. ..

To my mind, the wordings in the Will are unambiguous and are quite clear. They do not create any doubt whatsoever in my mind and it is very clear also in law that on the death of Guruswamy, his wife did acquire an absolute right in respect of the disputed property."

Aggrieved by this the appellant has filed the present appeal.

Mr. S.N. Bhat, learned counsel appearing for the respondent submits, in interpreting a Will; intention of testatrix should be taken into account and thus if the said Will is construed properly, it would reveal that testatrix' s brother Lakshmaiah had two wives - one Muniyamma and other Yellamma.

Plaintiff was born from the first wife Muniyamma while Guruswamy was born from the second wife Yellamma. Since at the time of the execution of the said Will both plaintiff and Guruswamy were young, hence limited right was given to them by dividing the suit property half and half - one going to the branch of the son born from the first wife and second going to the branch of son born from the second wife. This clearly reveals testatrix intended the property to go to two branches absolutely specially in the absence of any reference in the Will that the property would revert to the other branch where no son is born. Thus the right of the said two brothers even if limited would rnatnre into absolute right if this intention of the testatrix is read into the Will. He further submits, in any case, even if Guruswamy had a limited right, after bis death his widow having right in lieu of maintenance out of any estate of her husband it would mature into full right by virtue of Section 14(1) of the Hindu Succession Act.

On the other hand Mr. Rajesh Mahale, advocate appearing for the appellant submits that the said Will gives limited right to both the brothers, H namely, the plaintiff and Guruswamy and it is only when a son is born to

_:_:_

MUNINANJAPPA v. R. MANUAL (MISRA, J.] 1121

them, such son is to acquire the absolute right of his branch. Further if Guruswamy himself had a limited right it cannot mature into full right either in his favour or in favour of his widow. In any case, at the most the widow may continue to enjoy this limited right until a son is born out of her wedlock with Guruswamy, but in no case this limited right could be construed to be in lieu of maintenance or any of her pre-existing right. Hence the judgment of both the trial court and the appellate court holding the widow Sevamma having full right is not sustainable in the eyes of law and liable to be set aside.

He also referred to Sections 112 and 115 of the Indian Succession Act, 1925.

The submission is, Section 112 spells ou~ when a bequest is made to a person not in existence till testator's death then such bequest to such person is void to that extent. In the present case admittedly at the time of death of testatrix no son was born to Guruswamy hence the second bequest in favour of son of Guruswamy is void. However, by virtue of Section 115 .• if bequest is made to a class of person and even if for some it is inoperative viz. those falling under Section 112, then such bequest would be void only in regard to such persons and not in regard to the remaining class of persons.

Learned counsel for the respondent construes the Will to mean that intention of the testatrix was that the two branches, one out of 1st wife and other out of 2nd wife of Lakshmaiah become absolute owner. Submission is,

even if words in the Will are missing, the court should supply these missing words to subserve the intentions of the testator. For this, reliance is placed E lin Smt. Pramod Kumari Bhatia v. Om Prakash Bhati and Ors., [1980] 1 SCC 412, which holds while constituting a Will, the court could supply the missing words to carry out the intention of the testator. In order to appreciate this, the relevant portion of the Will is quoted hereunder:

"After my death the schedule item one house shall go to F Guruswamy, the 4 years old minor son of my above said deceased elder brother, Lakshmaiah through his second wife Yellamma and also to the male child to be born to Yellamma who is presently carrying.

My adopted son, the said Muninanjappa shall only enjoy the schedule one item house and he shall not have any right to alienate it by way of either sale, gift or mortgage. His male children may enjoy the same as they desire. The schedule item two house may be enjoyed hy the said Yellarnma' s son Guruswamy and the male child to be born to Yellarnma and they shall not have any right to alienate the same by way of sale, gif~ mortgage etc. Their male children shall have

every right to enjoy the same as they desire. The said Yellamma shall have the right to reside in the said house alongwith the minor children during her life time."

Reliance is also placed in Raghbir Singh and Ors. v. Budh Singh and Ors., AIR (1978) Delhi 86. In this case also the Court held, while construing a Will the intention of the Testator should be carried out. It further held, keeping this in view, different parts of the Will should be construed harmoniously. The Courts should not reject any part of the Will being a surplusage.

As the testator could not have intended to make any bequest in the Will as an exercise in futility. It further held, in doing so, if necessary, the Court may read down the language of a part of the Will to give full effect to the general words of the other part of the Will.

The principle laid down in the aforesaid decisions cannot be disputed.

This will depend on the facts of each case and the language of the Will. It may be,-in a given case the court may supply the missing words and in some other the court may read down the language of the Will in order to implement the intention of a testator. However, where the language and the words of a Will are clear, there is no ambiguity which could be understood clearly without any doubt then it would not be proper to either supplement the words or read it down to give benefit to either of the contesting parties. In the present case we find that the language of the Will is clear and unambiguous.

Thus to find out intentions of the testatrix, no supplementing or reading down any word is necessary. The testatrix bequeathed her property to her brother's sons, namely, one from first wife, plaintiff and other to Guruswamy, from the second wife. To both she clearly records in no uncertain words that they would have limited right with no right to alienate. She also clearly records in case son is born to them they would get absolute right including right to alienate. Tne language in the Will is :

"After my death the schedule item one (which is item No.2 in the schedule to the plaint) house shall go to Guruswami ......... , My adopted son, the said Muninanjappa (Plaintiff) shall only enjoy the schedule one item house and he shall not have any right to alienate .......... His male child may enjoy the same as they desire. The schedule item two, house may be enjoyed by the said ........ Guruswamy and the male child to be born to Yellamma and they shall not have any right to alienate ....... The male child shall have every right to enjoy the same as they desire."

MUNJNANJAPPA v. R. MANUAL [MISRA, J.] 1123

The aforesaid language in the Will are clear that the testatrix intended to give limited right to both plaintiff and Guruswami and absolute right only to the sons born to them. If that be so, the only point which requires our consideration, is what right Sevarnma widow of Guruswamy gets after the death of Guruswamy? We have no hesitation to hold that the limited right of Guruswamy cannot be interpreted by any stretch of language that testatrix intended to give absolute right to Guruswamy or to his widow. They were to hold the property for delivery to the son, in case, born out of their wedlock.

In no case Sevarnma' s right over the property would mature into absolute right by virtue of Section 14(1) of the Hindu Succession Act. Her right could only mature as such, if her claim could be based on any of her pre-existing right including right in lieu of maintenance out of her husband's property.

But in no case it would mature where the property is held by her husband either in trust for the benefit of other or as limited and restricted owner with no right to alienate. Hence even if Sevarnma continued to enjoy the property after the death of her husband, she held the property at the most, in the same capacity as her husband but not to claim it towards her right of maintenance.

If husband had any other property apart from what was gifted by Poovarnma,

she could claim her above right under Section 14(1) but not over the property given to her husband Guruswamy as a limited owner. The High Court fen into error while construing Section 14(1) of the Hindu Succession Act by extending its width so wide which spins over its permissible boundary when it held, a Hindu wife win acquire absolute right in the property of her husband and then applying it to the facts of this case. It seems High Court was not appraised with the settled law, in respect of the field of Section 14(1) as declared by this Court as far back as in V. Tulasamma & Ors. v. Sesha Reddy (Dead) by Lrs., [1977] 3 SCC 99 and also reiterated in Velamuri Venkata Sivaprasad (Dead) by Lrs., v. Kothuri Venka!eswarlu (tkad) by Lrs. & Ors.,

[2000] 2 sec 139, which holds benefit to a female could be given under Section 14 (1) where her claim is based on her pre-existing right over her husband's property. V. Tulasamma & Ors. (supra) holds Section 14 (2) is in the nature of a proviso to Section 14 (1). Section 14 (1) applies to property granted to a female Hindu by virtue of a pre-existing right of maintenance.

The decision while carrying out the field of Section 14 (2) held:

" ... Sub-section (2) mnst be confmed to cases where property is acquired by a Hindu female for the first time as a grant, without any pre existing right.. .... ., the terms of which prescribes a restricted estate in the property ....... Where, however, property is acquired by a Hindu

female at a paitition or in lieu of maintenance, it is by virtue of a preexisting right and such an acquisition would not be within the scope of sub-section (2), but within the scope of sub-section (l)."

Applying the said principle, it has to be seen whether Severnma is possessed of the property of her deceased husband based on her pre-existing right or is holding such property under any instrument prescribing restrictive estate in such property. By no stretch of interpretation it could be said, Sevarnma was possessed of the suit property in lieu of her any pre-existing right. When a widow claims her right under sub-section (1) of Section 14 in the hand of either coparcener or male issue of her deceased husband, it is because of her pre-existing right of maintenance to the extent of her husband share in a joint family property. She cannot claim any such right out of the share of other coparcener in which there is no trace of her husband's share.

So when limited right as spoken with reference to the husband right in joint Hindu f=ilyproperty, it only means limited to the extent of husband's share.

Lea!Iled counsel for the respondent referred to N Appavu Udayan and Anr. v. Nallammal, AIR (1949) Madras 24. In this case, it is held that even father-in-law has a moral obligation to maintain his widowed daughter-in-law out of his self-acquired property and on his death this liability passes on to his heirs. This case has no application to the facts in the present case. We are in the present case not called upon to decide any claim of the daughterin-law over the property of her father-in-law and further in the said case father-in-law was the absolute owner being self-acquired property. In the present case her husband's right to the suit property is limited and restricted in its enjoyment under the said Will, thus no right on the widow could be conferred more than what her hus0and possessed. He also referred to Ram Kali (Smt.) v. Choudhri Ajit Shankar and Ors., [1997] 9 SCC 613. This case also has no application, as the property acquired by the widow under Will was in lieu of maintenance allowance. Widow in this case was given the right to reside in the house during her lifetime and was debarred from alienating the same. However, widow was in possession of the house when the Hindu Succession Act ca!Ile into force. The Court held that she held the property in recognition of her pre-existing right to maintenance. As a consequence her limited estate enlarged into an absolute estate.

Next reference was made Kalawatibai v. Soiryabai and Ors., [1991] 3 sec 410. This was a case where the Hindu widow alienate the entire property inherited by her from her husband by executing a gift deed. This was a case

MUNINANJAPPA v. R. MANUAL [MISRA, J.] 1125

where the question was, whether a widow possessed of the property in A question being the limited owner could she mature her right under Section

14 of the Hindu Succession Act. Reliance is placed on the following lines:

"No actual division of share had taken place, yet the court held that it was property 'possessed' by her on the date the Act came into force. In Sukhram v. Gauri Shankar, it was held that a widow was B . full owner in Joint Hindu family property as she became entitled to the interest which her husband had by virtue of Hindu Women Right to Property Act. The court ruled that even though a male was subject to restrictions qua alienation on his interest in joint Hindu family property, but a wi\iow acquiring an interest by virtue of the Act did C not suffer such restriction. V. Tulsamma v. Shes ha Reddy and Bai Vajia

v. Thakorbhai Chelabhai, were cases where the widow was 'possessed' of the property in lieu of maintenance, and therefore, she was held to be full owner".

This was a case of joint Hindu family property where husband had a right in the property being member of the joint Hindu family, even though limited, which is distinguishable from the limited right which testatrix granted to Guruswamy. In the aforesaid case husband's limited right is referred as limited to the extent of his share, but there existed in the property the right of the husband indepeudently to the extent of his share while right to Guruswami in the suit property, he had no other right except what is conferred under the Will, which restricts it for its enjoyment only bnt no independent right to transfer. Distinguishing featnre between these two types of limited rights is, in the case of husband's right in the joint family property, even though limited, has a right to seek partition or right to transfer to the extent of his share which Guniswami could not enjoy in the restrictive right under the said Will. In other words, Guruswamy conld neither seek right of partition nor transfer his such right to any one else.

We find in the case before us trial court held lhal Sevanrrna became absolute owner by virtue of Section 8 of the Hindu Succession Act which has no legs to stand, both on facts and law. We have already recorded Gnruswamy has a limited and restrictive right, no absolute right. His widow on the facts of this case cannot be treated to be class I heir under the said Act. Hence both the courts below fell into error in holding that Sevamma became absolute owner. Accordingly, the fmding of both the trial court and

the appellate court are unsustainable in law.

A In view of the aforesaid findings we answer the first question by holding that the Will dated !st June, 1942, grants Guruswarny limited and

)I. restrictive right in no case to matnre into full right.

As a consequence of this we answer the second question by holding that Sevamma did not inherit the suit property from her husband nor B possessed it in lieu of maintenance hence question of maturing it into full right under Section 14(1) of the Hindu Succession Act does not arise. Thus we hold Sevarnma had no right to alienate the suit property, thus sale of the suit property in favonr of respondent nos. 1 and 2 can not be held to be valid.

Thus for these reasons and findings, we set aside the findings and the C judgment of both of the trial comt and the High Court and decree the suit of the plaintiff. Costs on the parties.

V.S.S.

Appeal allowed.