P.S. Narayana, J.
1. On 05.8.1999 this Court made the following order:
Admit. The substantial questions of taw framed in Ground No.4 of the appeal arise for consideration in this second appeal. List along with S.A. No. 200of1999.
2. The substantial questions of law specified under Ground No. 4 are as hereunder:
(a) Is it not illegal or the part of both the lower courts in not framing the issue whether Kotamma succeed to the entire property of the deceased Chennayya or whether Kotamma and Eswaramma succeed to half share each to the property of the deceased Chennayya as both of them being class I heirs of deceased Chennayya?
(b) Is it permissible under law to ignore the provision under Section 14(2) of Hindu Succession Act, 1956 inasmuch as the right of the adoptive mother of the 1st respondent is concerned in the light of decree in A.S. No. 19/38 on the file of Sub-Judge, Bapatla, dated 15.7.1940?
(c) Whether it is legal to say that entire property of the deceased vests with the adoptive mother of the 1st respondent when it is decreed that will dated 20.8.1922 which purports to have vested the entire property of Chennayya is not genuine in A.S. No. 19/38 on the file of Sub-Judge, Bapatla, dated 15.7.1940?
(d) Is it legal to deny half share to the daughter of the deceased as per Section 10 of Hindu Succession Act along with the widow of the deceased since both of them are class-l heirs?
3. Sri K.S. Gopala Krishna, representing Sri K. Bathi Reddy, counsel for appellants had taken this Court through the substantial questions of law already referred to supra and also taken this Court through the findings recorded in O.S. No. 42 of 1983 on the file of Subordinate Judge, Chirala and also in A.S. No. 35 of 1994 on the file of Additional District Judge, Ongole. Learned Counsel explained the relationship of the parties and also explained how Kotamma was related to China Chennaiah. The learned Counsel would maintain that the status of Kotamma and also the applicability of Section 14(1) of the Hindu Succession Act, 1956 (hereinafter in short referred to as 'the Act' for the purpose of convenience) had not been appreciated in proper perspective. The learned Counsel also would point out that the Will dated 20.8.1922 had been set aside by virtue of judgment made in A.S. No. 19 of 1938 on the file of the Subordinate Judge, Bapatla, dated 15.7.1940. The said Will was held to be invalid and not genuine. The findings recorded relating to the validity of the Will in Ex.B-4, certified copy of judgment in O.S. No. 19 of 1938 had attained finality. The learned Counsel also while making elaborate submissions would maintain that neither specific plea nor specific issue had been settled regarding applicability of Section 14(1) of the Act. The learned Counsel also would point out that the findings recorded in the judgment in A.S. No. 19 of 1938 referred to above had not been discussed at all. The learned Counsel also had drawn the attention of this Court to Sections 11, 12 and 16 of the Hindu Marriage Act and also to Sections 14 and 6 of the Act aforesaid. The learned Counsel also would maintain that when the appeal was pending, the Amending Legislation, Act 39 of 2005 of the Hindu Succession (Amendment) Act, 2005 came into force. Even in the light of the same, independent coparcenery right of a daughter to be upheld and in that case Section 6 of the Act as amended by the Hindu Succession (Amendment) Act, 2005 to be taken as having overriding effect to 14(1) of the Act. The learned Counsel also made elaborate submissions relating to the aspect of preexisting right, enlargement of the estate and also the meaning of possession and legal possession as well and would maintain that especially in the light of the findings recorded in A.S. No. 19 of 1938 the possession if any cannot be styled as lawful possession or legal possession and hence the findings recorded by the courts below relating to the applicability of Section 14(1) of the Act are totally unsustainable. The learned Counsel placed strong reliance on several decisions and would maintain that in the light of the submissions made the appellants are bound to succeed and the second appeal to be allowed.
4. Per contra, Sri G. Pedda Babu, learned Counsel representing the respondents would maintain that concurrent findings had been recorded by both the court of first instance and also the appellate court. The status of Kotamma, as wife, is not in serious controversy. Even prior to 1956 she had pre-existing right of maintenance dehors the Will and hence the validity or invalidity of the Will may not have any serious impact on the applicability or otherwise under Section 14(1) of the Act. The learned Counsel also had explained the scope and ambit of the suit which had been instituted and the findings recorded in the suit and the findings recorded in the appeal as well in the prior proceedings. The learned Counsel also had taken this Court through the respective pleadings of the parties and the contentions advanced before both the court of first instance and also the appellate court and would maintain that in the second appeal several contentions are being advanced without any factual foundation, whatsoever, and hence such contentions not to be permitted. Hence, the second appeal is bound to fail and is liable to be dismissed.
5. Heard the counsel and perused the findings recorded by the court of first instance in O.S. No. 42 of 1983 on the file of Subordinate Judge, Chirala and the findings recorded by the appellate court in A.S. No. 35 of 1994 on the file of the Additional District Judge, Ongole.
6. The first appellant-third defendant died and the legal representatives, appellants 3 to 7, were brought on record. The first respondent-plaintiff, who was the minor, represented by the next friend-natural father subsequently declared as major instituted the suit O.S. No. 42 of 1983 on the file of the Subordinate Judge, Chirala praying for the relief of recovery of possession, mesne profits and in alternative for partition and separate possession of the plaintiff's share in the plaint schedule property.
7. Before the court of first instance P.Ws.1 to 10 and D.Ws.1 to 6 were examined and Exs.A-1 to A-41 and Exs.B-1 to B-5 were marked. The court of first instance, on appreciation of evidence available on record, came to the conclusion that the first respondent-plaintiff is entitled for possession of the plaint schedule property and also for mesne profits and accordingly decreed the suit. Aggrieved by the same, defendants 3 and 4 in the said suit carried the matter by way of appeal A.S. No. 35 of 1994 on the file of the Additional District Judge, Ongole and the appellate Court also dismissed the appeal confirming the judgment and decree of the court of first instance. Hence, the present second appeal.
8. For the purpose of convenience, the parties hereinafter would be referred to as plaintiff and defendants as shown in O.S. No. 42 of 1983 on the file of the Subordinate Judge, Chirala.
9. It is the case of the plaintiff that one Gollamuri China Chennaiah bequeathed his properties under unregistered Will in favour of his wife Kotamma with absolute rights in 1922. Kotamma was having a daughter Annapurnamma. She brought K. Swami Reddy, her brother, with an intention to give her daughter in marriage to Swami Reddy, but Annapurnamma died prior to marriage. Swami Reddy continued to live with his sister Kotamma and she bequeathed her properties under settlement deed dated 07.12.1928 in favour of his brother Swami Reddy. The first defendant, who was the daughter of China Chennaiah through his first wife, filed O.S. No. 428 of 1935 on the file of the District Munsif Court, Bapatla, challenging the settlement deed executed by him in favour of Kotamma and the suit was dismissed. She preferred appeal A.S. No. 19 of 1938 on the file of Sub-Court, Bapatla and it was allowed and the suit was decreed on 30.01.1965. Swami Reddy executed sale deed in favour of Kotamma conveying back to her the property which she settled on him by the deed of 1928. Since then Swami Reddy, his wife and Kotamma, who were living together, were in possession of said property. Kotamma sold two items of her property to A. Lakshmi Prasannam and also executed a Will bequeathing rest of the property to Venkamma, wife of Swami Reddy keeping life estate. Subsequently, Kotamma adopted the plaintiff, who was the son of Lakshmi Reddy, on 31.01.1971 in a temple at Chinaganjam. Lakshmi Reddy was the son of Swami Reddy. Kotamma got mutated the name of the plaintiff in the revenue records in respect of property purchased by her under sale deed dated 30.01.1965. In April 1978 there was exchange of registered notices between the parties. Kotamma died on 13.03.1982. Defendants 1 to 3 shifted their residence to Kadavakuduru just before the death of Kotamma in order to assert a claim in the property of China Chennaiah. After her death, the defendant asked Annapurna, daughter of Swami Reddy, who was a widow living with Kotamma by the time of her death, to vacate the defendants, removed paddy from the grain pit and soap nuts. The defendants trespassed into the suit schedule property. The plaintiff prayed for possession of the schedule property and mesne profits, alternatively for partition.
10. The first defendant filed written statement which was adopted by defendants 2 to 10. The relationship between the parties is not in controversy. However, adoption had been denied. It is averred that the settlement deed executed in favour of Swami Reddy, Will said to have executed by China Chennaiah and sale deed were fabricated. Kotamma had no subsisting rights by the date of sale deed dated 09.02.1965. When the suit O.S. No. 428 of 1935 on the file of District Munsif Court, Bapatla was decreed and the judgment became final. There is no question of execution of sale deed dated 30.01.1965 by late Swami Reddy in favour of his sister Kotamma or sale deed in favour of Lakshmi Prasannam. The Will was fabricated one and never acted upon. The adoption is concocted. Kotamma died in the custody of first defendant and they performed obsequies. The plaintiff said to have sent by Kotamma for mutation of names to the revenue officials was incorrect. The defendant was absolute owner of the suit properties. Plaintiff was not in possession of the property. The suit was barred by time and the judgment in A.S. No. 19 of 1938 operates as res judicata.
11. On the strength of these pleadings, the following issues and additional issues were settled before the court of first instance.
1. Whether the plaintiff is entitled for possession of the plaint schedule property as prayed for?
2. Whether the plaintiff is entitled for mesne profits as prayed for in the plaint?
3. Whether the plaintiff is entitled for any interest on the mesne profits?
4. Whether the plaintiff is entitled for partition of the suit schedule property as alternatively with mesne profits if any?
5. To what relief?
Additional issues:
1. Whether the plaintiff is entitled to recover the amounts detailed in para 20 of the plaint?
2. Whether the plaintiff is the adopted son of late Kotamma and her husband Chennaiah?
12. As already referred to supra, on appreciation of oral and documentary evidence the suit had been decreed. In the appeal preferred A.S. No. 35 of 1994 on the file of Additional District Judge, Ongole, at paragraph No. 7 of the judgment the following points for consideration were framed.
1. Whether the lower court has erred in accepting adoption?
2. Whether Kotamma has not succeeded to the property of her deceased husband?
3. Whether there are any grounds to interfere with the judgment and decree of the lower court?
Commencing from paras 8 to 11 findings had been recorded and ultimately the appellate court also had confirmed the findings recorded by the court of first instance.
13. P.W.1, the natural father of the plaintiff, deposed in support of the case of the plaintiff and also about the adoption of the plaintiff by Kotamma in 1971 at Chinaganjam temple. This witness also deposed about giving and taking of child in adoption by Kotamma and about the execution of the registered adoption deed Ex.A-3 dated 28.11.1973. P.W.2, who was widowed niece of Kotamma supported the evidence relating to adoption. The evidence of P.Ws.3 to 10 also had been appreciated. The voluminous documentary evidence Exs.A-1 to A-41 also had been appreciated. The other oral evidence D.Ws.1 to 6 and the documentary evidence Exs.B-1 to B-5 also had been appreciated and findings had been recorded. Relating to several of the facts, concurrent findings had been recorded by both the court of first instance and also the appellate court. The only question which had been argued in elaboration is that when the Will was already declared as invalid, merely because subsequent thereto Kotamma had been in possession along with others in relation to the property in question, Section 14(1) of the Act cannot be made applicable in such a case. The decisions in Terene Traders v. Rameshchandra Jamnadas and Co. AIR 1987 SC 1492 and Bhagwan Dattatraya Budukh v. Vishwanath Pandharinath Joshi and Ors. : AIR1979Bom1 , had been relied upon.
14. Section 14(1) of the Act reads as hereunder:
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 the commencement of this Act.
Section 6 of the Act as amended by the Hindu Succession (Amendment) Act, 2005 (39 of 2005) reads as hereunder.
6. Devolution of interest in coparcenary property:(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener;
Provided that nothing contained in this Sub-section shall affect or invalidated any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
15. The contention that in the light of the Amendment Act (39 of 2005) the said provision would have overriding effect over Section 14(1) of the Act cannot be accepted for the reason that in the light of the facts and circumstances the said contention is not sustainable or at any rate the same need not be considered. The relationship of Kotamma and China Chennaiah is not in controversy. China Chennaiah appears to have giving the property to her and she had executed settlement deed in favour of her brother Swamy Reddy. Challenging the same the first defendant filed a suit which was dismissed and the matter was carried by way of appeal and the same was allowed. Swamy Reddy had re-conveyed the property to Kotamma and the Kotamma had adopted the plaintiff in 1971. As can be seen from oral evidence, almost all the witnesses it is not in controversy that even thereafter Kotamma was put in possession of the properties which she got through the Will from her husband. The counsel for appellants placed strong reliance on a decision in Moran Mar Basselios Catholicos v. Thukalan Paulo Avira and Ors. AIR 1959 SC 31. wherein it was observed at para 34 as hereunder:
In support of the first charge learned Counsel has drawn our attention to paragraphs 18, 22 and 26 of the plaint, paragraphs 29 and 38 of the written statement, paragraphs 18 and 27 of the replication and to issues Nos. 6, 14, 15 and 16. We do not think the pleadings and the issues are capable of being construed in the way learned Counsel would have us do. The supremacy of the Patriarch has indeed been alleged to have been taken away, but that is not a general averment founded on Ex. A.M.-indeed there is no specific mention of Ex. A.M. in paragraph 26 of the plaint but it is based on certain specific matters which appear to be incorporated as rules of the new constitution (Ex. A.M.). Therefore, what are pleaded as disqualifying the defendants from being trustees are those specific matters and not the general fact of adoption of the constitution. There is no charge in the plaint that for the incorporation in the constitution (Ex. A.M.) of any matter other than those specifically pleaded in the plaint the defendants have incurred a disqualification. The plaintiffs came to court charging the defendants as heretics or as having gone out of the church for having adopted a Constitution (Ex. A.M.) which contains the several specific matters pleaded in the plaint and repeated in the replication and made the subject-matter of specific issues. Those self-same matters were relied on as entailing disqualification in the earlier suit. The plaintiffs themselves contend that some of these matters are 'res judicata' against the defendants in this suit by reason of the conditions subject to which their application for review was admitted. On the pleadings as they stand and on the issues as they have been framed, it is now impossible to permit he plaintiff-respondent to go outside the leadings and set up a new case that the supremacy of the Patriarch has been taken way by the mere fact of the adoption of the new constitution (Ex. A.M.) or by any particular clause there of other than those slating to matters specifically referred to in the pleadings. The issues cannot be permitted to be stretched to cover matters which are not, on a reasonable construction, within the pleadings on which they were founded.
The counsel for appellants also placed strong reliance on a decision in Eramma v. Veerupana and Ors. : [1966]2SCR626 . wherein at paras 6 and 7 the Apex Court observed as hereunder.
It was next contended by the appellant that she was admittedly in possession of half the properties of her husband Eran Gowda after he died in 1341 F and by virtue of Section 14 of the Hindu Succession Act she became the full owner of the properties and respondents 1 and 2 cannot therefore, proceed with the execution case. We are unable to accept this argument as correct. At the time of Eran Gowda's death the Hindu Women's Rights to Property Act, 1937 (Act 18 of 1937) had not come into force. It is admitted by Mr. Sinha that the Act was extended to Hyderabad State with effect from 7/02/1953. It is manifest that at the time of promulgation of Hindu Succession Act, 1956 the appellant had no manner of title to properties of Eran Gowda Section 14(1) of the Hindu Succession Act states:
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 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 the commencement of this Act.
It is true that the appellant was in possession of Eran Gowda's properties but that fact alone is not sufficient to attract the operation of Section 14. The property possessed by a female Hindu, as contemplated in the section is clearly property to which she has acquired some kind of title 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 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 the 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. The Explanation to Sub-section (1) of Section 14 defines the word 'property' as including 'both movable and immovable property acquired by a female Hindu by inheritance or devise..Sub-section (2) of Section 14 also refers to acquisition of property. It is true that the Explanation has not given any exhaustive connotation of the word 'property' but the word 'acquired' used in the Explanation and also in Sub-section (2) of Section 14 clearly indicates that the object of the section is to make a Hindu female a full owner of the property which she has already acquired or which she acquires after the enforcement of the Act. It does not in any way confer a title on the female Hindu where she did not in fact possess any vestige of title. It follows, therefore, that the section cannot be interpreted so as to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser. In other words the provisions of Section 14(1) of the Act cannot be attracted in the case of Hindu female who is in possession of the property of the last male holder on the date of the commencement of the Act when she is only a trespasser without any right j. to property.
17. Further reliance was placed on the decision in Smt. Gulwant Kaur and Anr. v. Mohinder Singh and Ors. : [1987]3SCR576 . wherein at para 3 the Apex Court observed as hereunder:
It is obvious that Section 14 is aimed at removing restrictions or limitations on the right to a female Hindu to enjoy, as a full owner, property possessed by her so long as her possession is traceable to a lawful origin, that is to say, if she has a vestige of a title. It makes no difference whether the property is acquired by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or by her own skill or exertion or by purchase or by prescription or in any other manner whatsoever. The explanation expressly refers to property acquired in lieu of maintenance and we do not see what further title the widow is required to establish before she can claim full ownership under Section 14(1) in respect of property given to her and possessed by her in lieu of maintenance. The very right to receive maintenance is sufficient title to enable the ripening of possession into full ownership if she is in possession of the property in lieu of maintenance. Sub-section (2) of Section 14 is in the nature of an exception to Section 14(1) and provides for a situation where property is acquired by a female Hindu under a written instrument or a decree of court and not where such acquisition is traceable to any antecedent right.
18. In Sadhu Singh v. Gurdwara Sahib Narike and Ors. 2007 (1) ALT 12. the Apex Court at paras 8 to 15 observed as hereunder:
In Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva and Ors. (1959) Supp.1 SCR 968) this Court quoted with approval the following words of Justice P.N. Mookherjee, in Gostha Behari v. Haridas Samanta : AIR1957Cal557 .
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.
and added:
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.
In Eramma v. Verrupanna and Ors. : [1966]2SCR626 , this Court emphasized that the property possessed by a female Hindu as contemplated in the Section is clearly the property to which she has acquired some kind of title whether before or after the commencement of the Act and negatived a claim under Section 14(1) of the Act in view of the fact that the female Hindu possessed the property on the date of the Act by way of a trespass after she had validly gifted away the property. The need for possession with a semblance of right as on the date of the coming into force of the Hindu Succession Act was thus emphasized.
19. In Dindyal and Anr. v. Rajaram : [1971]1SCR298 this Court again noticed that,.before any property can be said to be 'possessed' by a Hindu woman as provided in Section 14(1) of the Hindu Succession Act, two things are necessary (a) she must have a right to the possession of that property and (b) she must have been in possession of that property either actually or constructively.
This Court relied on the decisions in S.S. Munnia Lal v. S.S. Rajkumar and Ors. (1962) Supp.3 SCR 418 and Kuldip Singh and Ors. v. Surain Singh and Ors. (Civil Appeal No. 138 of 1964) in support.
On the wording of the section and in the context of these decisions, it is clear that the ratio in V. Tulasamma v. V. Shesha Reddi : [1977]3SCR261 has application only when a female Hindu is possessed of the property on the date of the Act under semblance of a right, whether it be a limited or a pre-existing right to maintenance in lieu of which she was put in possession of the property. The Tulasamma ratio cannot be applied ignoring the requirement of the female Hindu having to be in possession of the property either directly or constructively as on the date of the Act, though she may acquire a right to it even after the Act. The same is the position in Raghubar Singh v. Gulab Singh : [1998]3SCR555 wherein the testamentary succession was before the Act. The widow had obtained possession under a Will. A suit was filed challenging the Will. The suit was compromised. The compromise sought to restrict the right of the widow. This Court held that since the widow was in possession of the property on the date of the Act under the will as of right and since the compromise decree created no new or independent right in her, Section 14(2) of the Act had no application and Section 14(1) governed the case, her right to maintenance being a preexisting right. In Mst. Karmi v. Amru and Ors. : AIR1971SC745 the owner of the property executed a will in respect of a self-acquired property. The testamentary succession opened in favour of the wife in the year 1938. But it restricted her right. Thus, though she was in possession of the property on the date of the Act, this Court held that the life estate given to her under the will cannot become an absolute estate under the provisions of the Act. This can only be on the premise that the widow had no pre-existing right in the self-acquired property of her husband. In a case where a Hindu female was in possession of the property as on the date of the coming into force of the Act, the same being bequeathed to her by her father under a will, this Court in Bhura and Ors. v. Kashi Ram : [1994]1SCR16 , after finding on a construction of the will that it only conferred a restricted right in the property in her, held that Section 14(2) of the Act was attracted and it was not a case in which by virtue of the operation of Section 14(1) of the Act, her right would get enlarged into an absolute estate. This again could only be on the basis that she had no pre-existing right in the property. In Sharad Subramanyan v. Soumi Mazumdar 2006 (6) SCJ 293 and others this Court held that since the legatee under the will in that case, did not have a pre-existing right in the property, she would not be entitled to rely on Section 14(1) of the Act to claim an absolute estate in the property bequeathed to her and her rights were controlled by the terms of the Will and Section 14(2) of the Act. This Court in the said decision has made a survey of the earlier decisions including the one in Tulasamma. Thus, it is seen that the antecedents of the property, the possession of the property as on the date of the Act and the existence of a right in the female over it, however limited it may be, are the essential ingredients in determining whether Sub-section (1) of Section 14 of the Act would come into play. What emerges according to us is that any acquisition of possession of property (not right) by a female Hindu after the coming into force of the Act, cannot normally attract Section 14(1) of the Act. It would depend on the nature of the right acquired by her. If she takes it as an heir under the Act, she takes it absolutely. If while getting possession of the property after the Act, under a devise, gift or other transaction, any restriction is placed on her right, the restriction will have play in view of Section 14(2) of the Act.
When a male Hindu dies possessed of property after the coming into force of the Hindu Succession Act, his heirs as per the schedule, take it in terms of Section 8 of the Act. The heir or heirs take it absolutely. There is no question of any limited estate descending to the heir or heirs. Therefore, when a male Hindu dies after 17-6-1956 leaving his widow as his sole heir, she gets the property as class I heir and there is no limit to her estate or limitation on her title. In such circumstances, Section 14(1) of the Act would not apply on succession after the Act, or it has no scope for operation. Or, in other words, even without calling in aid Section 14(1) of the Act, she gets an absolute estate.
An owner of property has normally the right to deal with that property including the right to devise or bequeath the property. He could thus dispose it of by a testament. Section 30 of the Act, not only does not curtail or affect this right, it actually reaffirms that right. Thus, a Hindu male could testamentarily dispose of his property. When he does that a succession under the Act stands excluded and the property passes to the testamentary heirs. Hence, when a male Hindu executes a will bequeathing the properties, the legatees take it subject to the terms of the will unless of course, any stipulation therein is found invalid. Therefore, there is nothing in the Act which affects the right of a male Hindu to dispose of his property by providing only a life estate or limited estate for his widow. The Act does not stand in the way of his separate properties being dealt with by him as he deems fit. His will hence could not be challenged as being hit by the Act.
When he thus validly disposes of his property by providing for a limited estate to his heir, the wife, the wife or widow has to take it as the estate falls. This restriction on her right so provided, is really respected by the Act. It provides in Section 14(2) of the Act, that in such a case, the widow is bound by the limitation on her right and she cannot claim any higher right by invoking Section 14(1) of the Act. In other words, conferment of a limited estate which is otherwise valid in law is reinforced by this Act by the introduction of Section 14(2) of the Act and excluding the operation of Section 14(1) of the Act, even if that provision is held to be attracted in the case of a succession under the Act. Invocation of Section 14(1) of the Act in the case of a testamentary disposition taking effect after the Act, would make Sections 30 and 14(2) redundant or otios. It will also make redundant, the expression 'property possessed by a female Hindu' occurring in Section 14(1) of the Act. An interpretation that leads to such a result cannot certainly be accepted. Surely, there is nothing in the Act compelling such an interpretation. Sections 14 and 30 both have play. Section 14(1) applies in a case where the female had received the property prior to the Act being entitled to it as a matter of right, even if the right be to a limited estate under the Mitakshara law or the right to maintenance. Dealing with the legal position established by the decisions in Tulasamma (supra) and Bai Vijaya v. Thakurbai (1979) 2 SCC 300, the position regarding the application of Section 14(2) of the Act is summed up in Mayne on Hindu Law thus:
Sub-section (2) of Section 14 applies to instruments decrees, awards, gifts etc., which create independent and new title in favour of females for the first time and has no application where the instruments concerned merely seek to confirm, endorse, declare or recognize pre-existing rights. The creation of a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in such a case. Where 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-section (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee.
20. Further reliance was placed on the decision in Smt. Sitabai and Anr. v. Ramchandra : [1970]2SCR1 . wherein the Apex Court at para 3 observed as hereunder:
The first question to be considered in this appeal is whether the High Court was right in holding that plaintiff No. 2 Suresh Chandra at the time of his adoption by plaintiff No. 1 did not become a coparcener of Dulichand in the joint family properties. It is the admitted case of both the parties that the properties consisted of agricultural land and a house jointly held by Bhagirath and Dulichand. After the death of Bhagirath, Dulichand became the sole surviving coparcener of the joint family. At the time when plaintiff No. 2 Suresh Chandra was adopted the joint family still continued to exist and the disputed properties retained their character of coparcenary properties. It has been pointed out in Gowli Buddanna v. Commissioner of Income-tax Mysore, : [1966]60ITR293(SC) that under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members and that the property of a joint family did not cease to belong to a joint family merely because the family is represented by a single coparcener who possesses rights which an absolute owner of property may possess. In that case, one Buddappa, his wife, his two unmarried daughters and his unmarried son, Buddanna, were members of a Hindu undivided family. Buddappa died and after his death the question arose whether the income of the properties held by Buddanna as the sole surviving coparcener was assessable as the individual income of Buddanna or as the income of the Hindu Undivided Family. It was held by this Court that since the property which came into the hands of Buddanna as the sole surviving coparcener was originally joint family property, it did not cease to belong to the joint family and income from it was assessable in the hands of Buddanna as income of the Hindu undivided family. As pointed out by the Judicial Committee in Attorney General of Ceylon v. A.R. Arunachalam Chettiar 1957 AC 540 it is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as 'joint property' of the undivided family. In that case one Arunachalam Chettiar and his son constituted a joint family governed by the Mitakshara School of Hindu Law. The father and son were domiciled in India and had trading and other interests in India, Ceylon and far Eastern countries. The undivided son died in 1934 and Arunachalam became the sole surviving coparcener in the Hindu undivided family to which a number of female members belonged. Arunachalam died in 1938, shortly after the Estate Ordinance No. 1 of 1938 came into operation in Ceylon. By Section 73 of the Ordinance it was provided that property passing on the death of a member of the Hindu undivided family was exempt from payment of estate duty. On a claim to estate duty in respect of Arunachalam's estate in Ceylon, the Judicial Committee held that Arunachalam was at his death a member of the Hindu undivided family, the same undivided family of which his son, when alive, was a member and of which the continuity was preserved after Arunachalam's death by adoption made by the widows of the family and since the undivided family continued to persist, the property in the hands of Arunachalam as a single coparcener was the property of the Hindu undivided family. The Judicial Committee observe at p. 543 of the report:.though it may be correct to speak of him as the 'owner', yet it is still correct to describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son it assumes a different quality; it is such, too, that female members of the family (whose members may increase) have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. And these are incidents which arise, notwithstanding his so-called ownership, just because the property has been and has not ceased to be joint family property'. Once again their Lordships quote from the judgment of Gratisan J. : 'to my mind it would make a mockery of the undivided family system if this temporary reduction of the coparcenary unit to a single individual were to convert what was previously joint property belonging to an undivided family into the separate property of the surviving coparcener. ' To this it may be added that it would not appear reasonable to impart to the legislature the intention to discriminate, so long as the family itself subsists, between property in the hands of a single coparcener and that in the hands of two or more coparceners.
The basis of the decision was that the property which was the joint family property of the Hindu undivided family did not cease to be so because of the 'temporary reduction of the coparcenary unit to a single individual. ' The character of the property, viz. that it was the joint property of a Hindu undivided family, remained the same. Applying the principle to the present case, after the death of Bhagirath the joint family property continued to retain its character in the hands of Dulichand as the widow of Bhagirath was still alive and continued to enjoy the right of maintenance out of the joint family properties.
Further strong reliance was placed on the decisions in R.K. Madhuryyajit Singh and Anr. v. Takhellambam Abung Singh and Ors. AIR 2001 Gau 181. Moran Mar Basselios Chatholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Ors. AIR 1954 SC 526 and Dinadyal and Anr. v. Rajaram : [1971]1SCR298 .
21. The propositions laid down in the decisions specified supra need not detain this Court any longer for the reason that predominantly concurrent findings had been recorded relating to the possession of the property held by Kotamma as on the date of coming into force of the Act and it cannot be said that she had no pre-existing right at all and dehors the Will despite the fact that the said Will was held to be invalid, inasmuch as such limited owner having pre-existing right had been in possession of the property and continued to be in possession subsequent thereto also, the findings recorded by both the courts below relating to enlargement of estate by virtue of Section 14(1) of the Act cannot be found fault with.
22. Hence, the second appeal being devoid of merit, the same is liable to be dismissed and accordingly hereby dismissed. In view of the close relationship between the parties, this Court makes no order as to costs.