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TMI Blog1979 (2) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... half share in Survey Nos. 591, 611, 288 and 659/3. These persons were burdened by the decree with the responsibility to pay an yearly maintenance allowance of ₹ 42/- to Bai Vajia on Magsher Sud 2 of every year and the decree further provided that in the event of default in payment of such allowance continuing for a period of a month after the due date, Bai Vajia would be entitled to take possession of the land above-mentioned in lieu of the maintenance awarded to her and would enjoy the income thereof without however being competent to sell, mortgage, bequeath, gift or otherwise transfer the same. The decree declared that any alienation made by Bai Vajia in contravention of the direction given by the decree in that behalf would be void By clause 8 of the decree sons of Mohanbhai as well as Motabhai were also deprived of the right of alienation of the land during the lifetime of Bai Vajia. Default having been made in the payment of maintenance to Bai Vajia according to the terms of the decree, she took out execution and obtained possession of the land above detailed. Thereafter Dayalji and Dahyabhai sons of Mohanbhai deposited in court the arrears of maintenance and filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Devi and Ors. [1976]3SCR55 . The legal representative of Bai Vajia is the sole appellant in the appeal before us, the respondents thereto being nine of the plaintiffs and six legal representatives of plaintiff No. 5 as also the purchaser from Bai Vajia who is arraigned as respondent No. 11. 3. At the outset it was pointed out by Mr. I.N. Shroff, under Counsel for the appellant, that Naraini Devi's case (supra) has since been over-ruled by the decision of this Court in V. Tulasamma and Ors. v. V. Sesha Reddi. [1977]3SCR261 and we find that this is so. In the case last mentioned, the facts were these. The husband of Tulasamma died in the year 1931 in a state of jointness with his step-brother V. Sesha Reddi. A decree for maintenance was passed in favour of Tulasamma against V. Sesha Reddi on June 29, 1946. On the 30th July 1949, a compromise between the contending parties was certified by the Court executing that decree. Under the compromise, Tulasamma was allotted certain properties in lieu of maintenance, her right being limited to enjoyment thereof coupled with the specific condition that she would not have any right of alienation whatsoever. Tulasamma took possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... azal Ali, J., and as a consideration thereof he arrived at the following propositions: (1) A Hindu woman's right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her even if he has no property. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow. (2) Though the widow's right to maintenance is not a right to property but it is undoubtedly a pre-existing right in property, i.e., it is a jus ad rem, not jus in rent, and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a decree from the civil court. (3) The right of maintenance is a matter of moment and is of such importance that even if the joint property is sold and the purchaser has notice of the widow's right to maintenance, the purchaser is legally bound to provide for her maintenance. (4) The right to maintenance is undoubtedly a pre-existing right which existed in the Hindu Law long before the passin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se cases where by virtue of a certain grant or disposition a right is conferred on the widow for the first time and the said right is restricted by certain conditions. In other words, even if by a grant or disposition a property is conferred on a Hindu male under certain conditions, the same are binding on the male. The effect of Sub-section (2) is merely to equate male and female in respect of grant conferring a restricted estate. Finally, Fazal Ali, J. made a reference to Naraini Devi's case (supra) to which he himself was a party (apart from Sarkaria, J., who delivered the judgment of the Court) and in relation thereto made the following observations: This case is no doubt directly in point and this Court by holding that where under an award an interest is created in favour of a widow that she should be entitled to rent out the property for her life-time, it was held by this Court that this amounted to a restricted estate under Section 14(2) of the 1956 Act. Unfortunately the various aspects, namely, the nature and extent of the Hindu women's right to maintenance, the limited scope of Sub-section (2) which is a proviso to Sub-section (1) of Section 14 and the effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1956 Act and promote the socio-economic ends sought to be achieved by this long-needed legislation. (3) Sub-section (2) of Section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of Section 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 Section 14(1) or in a way so as to become totally inconsistent with the main provision. (4) Sub-section (2) of Section 14 supplies to instruments, decrees, awards, gifts, etc., which create independent and new titles in favour of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter Fazal Ali, J., allowed the appeal of Tulasamma's legal representatives. Bhagwati, J. wrote a separate judgment in Tulasamma's case and A. C. Gupta, J., agreed with him. He also allowed the appeal substantially for the same reasons as had weighed with Fazal Ali, J., and in doing so observed: Now, Sub-section (2) of Section 14 provides that 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. This provision is more in the nature of a proviso or exception to Sub-section (1) and it was regarded as such by this Court in Badri Pershad v. Smt. Kanso Devi [1970]2SCR95 . It excepts certain kinds of acquisition of 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 women in Hindu society, it must be construed strictly so as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following terms: It is settled law that a widow is entitled to maintenance out of her deceased husband's estate, irrespecitve whether that estate may be in the hands of his male issue or it may be in the hands of his coparceners. The joint family estate in which her deceased husband had a share is liable for her maintenance and she has a right to be maintained out of the joint family properties and though, as pointed out by this Court in Rani Bai v. Shri Yadunandan Ram [1969]3SCR789 . her claim for maintenance is not a charge upon any joint family property until she has got her maintenance determined and made a specific charge either by agreement or a decree or order of a Court, her right is not liable to be defeated except by transfer to a bonafide purchaser for value without notice of her claim or even with notice of the claim unless the transfer was made with the intention of defeating her right . The widow can for the purpose of her maintenance follow the joint family property into the hands of any one who takes it as a volunteer or with notice of her having set up a claim for maintenance . The courts have even gone to the length of taking the view that where a widow i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s unanimous in accepting the appeal on the ground that Tulasamma's right to maintenance was a pre-existing right, that it was in recognition of such a right that she obtained property under the compromise and that the compromise therefore did not fall within the ambit of Sub-section (2) of Section 14 of the Act but would attract the provisions of Sub-section (1) thereof coupled with the Explanation thereto. With respect we find ourselves in complete agreement with the conclusions arrived at by Bhagwati and Fazal Ali, JJ., as also the reasons which weighed with them in coming to those conclusions. 4. Mr. S.T. Desai, under Counsel for the plaintiffs-respondents, and Mr. U.R. Lalit who very ably assisted the Court at its request, contended that for a Hindu female to be given the benefit of Sub-section (1) of Section 14 of the Act she must first be an owner, albeit a limited owner, of the, property in question and that Tulasamma not being an owner at all, the Bench presided over by Bhagwati, J., did not reach a correct decision in holding that the Sub-section aforesaid covered her case. We find that only that part of this argument which is interpretative of Sub-section (1) is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title, however restricted the nature of her interest may be. The words as full owner thereof and not as a limited owner as given in the last portion of Sub-section (1) of Section 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. In other words, Section 14(1) of the Act contemplates that a Hindu female who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of this Section. The object of the section is to extinguish the estate called 'limited estate' or 'widow's estate' in Hindu Law and to make a Hindu woman, who under the old law would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder.... It does not in any way confer a title on the female Hindu where she did not in fact possess any vestige of title. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is a sum-total of all the rights which may possibly flow from title to property, while limited ownership in its very nature must be a bundle of rights constituting in their totality not full ownership but something less. When a widow holds the property for her enjoyment as long as she lives, nobody is entitled to deprive her of it or to deal with the property in any manner to her detriment. The property is for the time being beneficially vested in her and she has the occupation, control and usufruct of it to the exclusion of all others. Such a relationship to property in our opinion falls squarely within the meaning of the expression limited owner as used in Sub-section (1) of Section 14 of the Act. In this view of the matter the argument that the said Sub-section did not apply to Tulasammas's case (supra) for the reason that she did not fulfil the condition precedent of being a limited owner is repelled. 5. The next contention raised by Mr. Desai and Mr. Lalit also challenged the correctness of the decision in Tulasamma's case. They argued that in any case the only right which Tulasamma had prior to the compromise dated July 30, 1949 was a right to maintenance simpl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchased with stridhana or with savings of income of stridhana. (10) Property acquired from sources other than those mentioned above. These heads of property are then dealt with at length by Mulla in paragraphs 126 to 135 of his treatise. Prior to the commencement of the Act, the Hindu female did not enjoy full ownership in respect of all kinds of Stridhana and her powers to deal with it further varied from school to school. There was a sharp difference in this behalf between Mitakshara and Dayabhaga. And then the Bombay, Benaras. Madras and Mithila, schools also differed from each other on the point. Succession to different kinds of Stridhana did not follow a uniform pattern. The rights of the Hindu female over Stridhana varied according to her status as a maiden, a married woman and a widow. The source and nature of the property acquired also placed limitations on her ownership and made a difference to the mode of succession thereto. A comparison of the contents of the Explanation with those of paragraph 125 of Mulla's Hindu Law would show that the two are practically identical. It follows that the Legislature in its wisdom took pains to enumerate specifically al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relation to the land during the life-time of Bai Vajia, were exercisable by her alone and by nobody else. Not even the said three persons could deal with the land in any manner whatsoever, and if they did, Bai Vajia had the right to have their acts declared null and void during her life-time. After the land was made over to her she became its owner for life although with a limited right and therefore only as a limited owner. Under the decree the land vested in the said three persons only so long as they were not dispossessed of it at the instance of Bai Vajia in accordance with the terms stated therein. As soon as Bai Vajia took possession of the land, no rights of any kind whatsoever in relation thereto remained with them and thus they ceased to be the owners for the span of Bai Vajia's life. 7. Following Tulsamma's case we hold that Bai Vajia became a full owner of the land in dispute under the provisions of Sub-section (1) of Section 14 of the Act and that Sub-section (2) thereof has no application to her case, the land having been given to her as a limited owner and in recognition of her pre-existing right against property. In the result therefore, the appeal succeed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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