Kantawala, C.J.
1. Asharam Ramgopal, the plaintiff, has filed this appeal against the judgment and decree passed by Kania J. dismissing his suit for a declaration that his step mother, Defendant No. 1, got a restricted estate in the moveable and immovable properties coming to her share as a result of the partition and that she was entitled to only. a life interest n the said moveable and immovable properties. By the plaint also. injunction was claimed against defendant No. 1 restraining her, servants and agents from selling, alienating, encumbering or otherwise dealing with or despising of the said moveable and immovable properties. There is no controversy as regards the facts of the case. One Ramgopal Jagannath deed on or about May 21, 1950, leaving behind him his widow Sarjubai, Defendant No. 1 and three sons, Asharam Ramgopal plaintiff by his first wife and Nandkishore Ramgopal and Chandmal Ramgopal, both minors at the time of his death, by his wife Sarjubai. At the time of Ramgopal's death, they were the members of a joint and undivided Hindu family owning moveable and immovable properties and also carrying on business in the name and style of Messrs. Jagannath Ramgopal. Besides the plaintiff and the defendants, Ramgopal also left two unmarried daughters by name Pushpaba and Shantiba. After the death of Ramgopal, disputes and differences arose between the parties and as a result of the mutual intervention of friends and relatives, as agreement was arrived at for partitioning the joint family properties on August 18, 1955. The terms of this agreement will be referred to a little later. Under Hs agreement, so far as the joint family business was concerned, it was to be divided with effect from November 14, 1955 and thereafter was to be cared on in partnership between plaintiff and defendant No. 1 and defendants 2 and 3 who were then minors were to be admitted to the benefits of partnership. Even what happened on November 14, 1955 has been recorded in an agreement between the parties. On June 17, 1956, the Hindu Succession Act, 1956 [hereinafter referred to as the 'Act'] came into force. After the Act came into force, on September 13, 1956, a declaration was made by the plaintiff and defendant. No. 1 executing the said declaration not only on behalf of herself --- defendant NO. 1, but as the natural guardian of the two minor sons --- defendants 2 and 3. On February 23, 1968, and plaintiff filed the present suit alleging that under the agreement dated August 18, 1955 and writing dated November 14, 1955, defendant NO. 1 obtained only a restricted interest in the moveable and immovable properties coming to her share as a result of the partition; that by the said declaration dated September 13, 1956, she declared on oath that the would hold the said moveable and immovable properties as a limited owner; that upon he death the said moveable and immovable properties would belong to and be divided between the plaintiff and defendants 2 and 3 in equal shares; and that the said moveable and immovable properties was not enlarged by reason of the provision of Section 14[1]of the Act. It was also alleged by the plaintiff and defendant 2 and 3 have vested interest n the corpus of the moveable and moveable properties coming to the share of defendant No. 1 and that she was making an adverse claim to the corpus of the properties, and as she was denying the 1/3 right of the plaintiff therein, it become necessary for the plaintiff to file the soot for the possession and injunction as aforesaid. The suit was resisted by defendant No. 1 and material issues that arose for consideration in this case were whether the estate of defendant NO. 1 in the moveable properties and immovable properties described n the annexes to the plaint allotted to her share was not enlarged by reason of the provision of Section 14[1] of the Act of whether defendant No. 1 got full ownership of the said moveable and immovable properties after the commencement of the Act n view of the provision of Section 14 thereof? This question was answered n favour of Defendant No. 1 and the soot was dismissed by the learned Judge. It is against this judgment and decree passed by the learned Judge, that plaintiff has come in appeal before us.
2. Mr. Mehta on behalf of the plaintiff, contended that as a result of the agreement dated August 18, 1955, the writing dated November 14, 1955 and the declaration dated September 13, 1956, defendant No. 1 merely continued to have a restricted interest in the property allotted to her on partition of the moveable and immovable properties belonging to the family; that such restricted interest allotted to her was less than limited ownership contemplated under the Hindu Law; that under these document, it is clearly provided that she would have no right of alienation whatsoever in respect of the moveable or immovable properties allotted to her; that in view of these circumstances, even having regard to the provision of Section 14 of the Act, the moveable and immovable properties allotted to her as a result of this partition were not converted into full ownership and that she was not entitled to the rights of an absolute owner or right to alienate, encumber or dispose of the same.
3. Before dealing with the provisions of Section 14 of the Act, it will be necessary to refer to the three documents on which the submission s based by Mr. Mehta. It is not disputed that when Ramgopal died on May 21, 1950, he the plaintiff and the defendants were the member of a joint and undivided Hindu family and apart from the plaintiff and the defendants, he died leaving him surviving his unmarried daughters. The property owned by the family including the business of M/s Jagannath Ramgopal was a joint family business. After the disputes and differences arose between the parties, the properties belonging to the family, both moveable and immovable including cash, golden and silver ornaments, house-hold utensils and other moveable properties were partitioned and the terms of the partition were subsequently recorded in an agreement dated August 18, 1955. In this agreements, it is decided that so far as the joint family business of Jagannath Ramgopal was concerned, it would be partitioned with effect from November 14, 1955 on the basis that the plaintiff and the defendants will be each entitled to 1/4th are thereof. So far as the house-hold articles and things were concerned, the mother agreed to relinquish her interest in the property and the same were to the divided equally only between the plaintiff and defendants 2 and 3. The rest of the properties, both moveable and immovable, belonging to the family were to be divided equally between the parties. There is no controversy that plaintiff and defendants 2 and 3 under this agreement became the absolute owners of the respective 4 Anna share in the properties allotted to them under partition. So far as the share that was allotted to defendant No. 1 was concerned, the agreement provided as under:---
'the 4 Anna share which has been given to NO. 4 Sarjubai shall remain in her name and in her possession as long as she lives. After her death, the three brothers Ashram, Nandkishore and Chandmal shall get divided equally the said four Anna share. However, Sarjubai shall be the absolute owner of the income which she may derive from the property pertaining to her four Anna share. She may utilise the amount of the said income in such manner as she may like and she [Sarjubai] shall have the right to utilise it n every way and in any manner she may like. Nos. 1-2-3 [viz.] Ashram, Nandkishore and Chandmal shall have no right to raise any objection whatsoever at any time. Sarjubai will have to keep intact the original amount, property and the gold and silver ornaments given to her on partition. She will not be entitled to reduce the same.'
When the shares of the business of Jagannath Ramgopal were Partitioned, a writing dated November 14, 1955, regarding what has happened was executed and the said writing provided that the gold and silver ornaments, diamonds, jewellers, money etc.; which have been allotted to the share of Sarjubai widow of Ramgopal under the agreement dated August 18, 1955 shall remain in her possession as long as she is alive. After her death, the three brothers Asharam Ramgopal, Nandkishore Ramgopal and Chandmal Ramgopal shall divide the same [including the shares]. After the Hindu Succession Act came into force, a declaration was made between the plaintiff and defendant No. 1 on behalf of herself and as the natural guardian of her two sons --- defendants 2 and 3. In this declaration, so far as defendant No. 1 was concerned, she was a party of the Second Part. in this declaration, Clause 12 provided as under:---
'The party of the Second Part hereby declare that she the party of the Second Part will hold the said several properties viz. [1] One fourth share n the ornaments and jewellery of the sad joint family [2] the amount of the one-fourth share in the capital of the said joint family business credited to her account and [3] the said immovable properties described in the second schedule here-under written as a limited owner and that upon her death the same shall belong to and be divided between the party of the First Part, the party of the Third Part and the Party of the Fourth Part in equal share.'
The Act came into force on June 17, 1956 and substantial alterations were made in the rights of property possessed by a female Hindu by the provisions of Section 14 thereof. The said section provides as under:-
'14. [1] Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as fully owner there of and not as a limited owner.
Explanation --- In this sub-section, 'property' includes both moveable 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 the commencement of this Act.'
The argument of Mr. Mehta is that the provisions of Section 14[1] are not attracted in the present case, as under the agreement recording partition dated August 18, 1955, the writing dated November 14, 1955 and the declaration dated September 13, 1956, only restricted interest was conferred upon defendant No. 1, that interest was not in the nature of widow's estate which is normally known as limited interest under the Hindu Law and that there is no right of alienation whatsoever in respect of the property allotted to her and such right in the moveable and immovable properties allotted to her did not become enlarged under the provision of Section 14 of the Act. If regard be had to the language of Section 14[1], such a contention cannot be accepted. It is laid down by the Supreme Court that the word 'possessed' used in Section 14[1] of the Act s to be interpreted in broad sense. In Bard Perished v. Kanso Devil : [1970]2SCR95 , the Supreme Court pointed out us under:---
'The critical woods in sub-section [1] are 'possessed' and 'acquired'. The word 'possessed' has been used in its widest connotation and the possession may be either actual or constructive or in any from recognised by law. In the context in which it has been used in Section 14 it means the state of owing or having in one's hand or power.'
It is quite clear that the properties in question were in lawful possession of defendant No. 1 at the commencement of the Act pursuant to the rights conferred on her at the partition of the joint family and she got this right to possession on partition under the provisions of the Hindu Women's Rights to Property ACT. When the property is possessed by a Hindu female which is acquired before or after the Act, then by reason of the provisions of Section 14[1], such property will be held by the female as full owner thereof and not as a limited owner.
4. I. Eramma v. Veerupana : [1966]2SCR626 , the question which arose was whether Section 14 of the Act would be attracted by the Hindu female who was in possession of the property but without any right to it. In connection with that question, the Supreme Court observed as follows:----
'The property possessed by a female Hindu, as contemplated in the section is clearly property to which she has acquired sod kind of the whether before or after the commencement of the Act. It may be noticed that the Explanation to Section 14[1] sets out the various modes of acquisition of the property by a female e Hindu and indicated 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.'
These observation make it amply clear that it is enough if the Hindu female has right to the property which she is in possession how ever restricted the nature of her interest may be. In that view of the matter, it is not even necessary to consider whether under the agreement of partition dated August 18, 1955. defendant No. 1 had a right to sell the property allotted to her even for legal necessity of for the benefit of the estate.
5. It is pointed out in Badri's : [1970]2SCR95 that sub-s [2] is more in the nature of a provision or an exception to sub-sec [1]. It come into operation only if acquisition in any of the methods indicated 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. This is not a case where its possible even to contend that defendant NO. 1 had no pre-existing right and the right was created for the first time by the agreement of apparition dated August 18, 1955. Even f the contention of Mr. Mehta is accepted, defendant No. 1 voluntarily agreed to a restriction being imposed upon the right which she would be entitle dot as a Hindu widow under the Hindu Women's Rights to Property Act. To such a case the provision of sub-section [2] are never attracted.
6. Reference was made by Mr. Mehta to the decision of the Supreme Court in Dindayal v. Rajaram : [1971]1SCR298 . That was a case in which the Supreme Court had occasion to consider the right of a widow in the context of Section 14[1] of the Act when she is is possession of the property as a trespasser. We are not concerned with any smaller contention and a smaller question and it will not be useful to refer to this case.
7. It was urged by Mr. Mehta that by the declaration dated September 18, 1956, defendant No. 1 has at least relinquished her right as a full owner and has agreed to hold the property thereafter as a limited owner and has further agreed that upon her death. The property allotted to her would belong to and shared and divided by and between the plaintiff and defendants 2 and 3. It was sought to be contended that by reason of such a declaration, defendant No. 1 agreed to relinquish of curtailed err interest in the property allotted to her even though under Section 14[1] of the Act, she becomes the full owner thereof. If regard be had to the pleadings in the present case, such a contention is not permissible to the plaintiff. Even though tee declamation is referred to in the plaint, it is nowhere stated that the effect of the declaration was curtail the rtes which having regard to the provisions of Section 17 of the Act would be converted into rights of a full owner. It will not be permissible to Mr. Mehta in the first appeal in the absence of proper pleading to even contend that there was a relinquishment as a result of the declaration.
8. In the result, that learned Judge was right in tang the vu that defendant No. 1 got full ownership in the movable properties and immovable properties referred to in the plaint after the commencement of the Act. In that view of the matter the appeal fails and is dismissed with costs.
9. Liberty to the respondents attorneys to withdraw the amount deposited as security for costs.
10. Appeal dismissed.