K. Gnanaprakasam, J.
1. The unsuccessful 2nd defendant in both the courts below is the appellant in SA. No. 1825/1989.
2. The plaintiff in OS. No. 785/1985, before the District Munsif Court, Cuddalore, who has partly succeeded in the trial court, has preferred SA. No. 121/1990.
3. The plaintiff's suit is one for declaration of his right and for recovery of possession and for damages and future profits.
4. The case of the plaintiff is that one Narayanasami Reddiar and Rangappa Reddiar were brothers and the suit property belonged to them. Narayanasami Reddiar's son is Sadasiva Reddiar and Rangappa Reddiar's son is Kumarasami. Kumarasami had a son, Subbaroyalu and a daughter, Nagammal @ Kamalatchi. Sadasiva and Kumarasami partitioned their properties on 16.2.1916, in which, the property set out in the Schedule 'B' was allotted to Kumarasami and to his minor son Subbaroyalu. Kumarasami Reddiar had executed a settlement deed of certain properties in favour of his daughter on 12.10.1919, by which, she was given 'life estate' i.e. she was to enjoy only the income from the property till her life time, without any powers of alienation and the settlor's son Subbaroyalu shall take the property absolutely i.e. vested remainder was given to him. The said deed was duly and validly executed and attested. The original of the said document is with the 1st defendant and in pursuant of the said settlement deed, the settlee, viz., Nagammal took possession of the property and has been enjoying. She had leased out the property to one Munusami Goundar and when there was a threat to her right, she had filed a suit and established her right.
5. The plaintiff and his father Subbaroyalu partitioned their properties on 11.2.1971, in which the suit property was allotted to the share of Subbaroyalu. On the same day, Subbaroyalu had executed a registered Will in favour of the plaintiff, in respect of the suit property to take it absolutely and the said Will was executed, while he was in a sound and disposing state of mind and the same was also duly executed and attested. On the plaintiff' father's death on 21.8.1971, the Will came into effect. The 2nd defendant is the daughter of Nagammal and the 1st defendant is her husband. Nagammal died on 17.1.1985. As per the settlement deed dated 12.10.1919, executed by Komarasami, the plaintiff became the absolute owner of the suit property and his demand for possession was resisted by the 1st defendant. Despite the notice dated 20.5.1985, the 1st defendant has not come forward to surrender possession. Hence, the suit.
6. The 1st defendant, in his written statement, has contended that Nagammal was the absolute owner of the suit property and, as she was old and helpless and not able to cultivate, she had executed a registered lease deed in favour of the 1st defendant on 19.11.1974, on an annual lease of Rs.600/- and put him in possession of the suit property. The 1st defendant continues to be in possession as a lessee and even after the expiry of the lease, he continued to be in possession on the same terms and conditions. As per the Will dated 17.1.1985 executed by Nagammal, the 2nd defendant became the absolute owner and the 1st defendant also attorned the tenancy to the 2nd defendant. The 1st defendant also claims that he is a cultivating tenant and is entitled to the benefits of the Tamil Nadu Cultivating Tenants Protection Act.
7. The 2nd defendant filed a separate written statement, wherein, she has admitted that the suit property was allotted to Komarasami Reddiar, under the partition deed dated 16.2.1916. The settlement deed executed by Komarasami in favour of his daughter Nagammal on 12.10.1919 is valid. As Nagammal became a widow in her early age, she went back to her father Komarasami Reddiar's house for support and maintenance. Her father wanted to provide security to his daughter and only in the said circumstances, he had settled the property to his daughter, Nagammal and she has been enjoying the property as per the settlement deed dated 12.10.1919. As per the settlement deed , the property could be taken by his son Subbaroyalu, only after the life time of Nagammal and the real intention of the settlor was that Subbaroyalu should enjoy the property only if he survives his sister Nagammal and it was the condition precedent for the vesting to take place. But, Subbaroyalu predeceased Nagammal in 1971 and therefore, the property remained as the absolute property of Nagammal and the claim of the plaintiff that only a life estate was given to Nagammal is not correct. The interest created in favour of Subbaroyalu after the life time of Nagammal is really in the nature of curtailing the earlier disposition, which created absolute interest in favour of Nagammal and to that extent the subsequent clause in the settlement deed is void. The intention of the settlor was that the property should go absolutely to his daughter Nagammal. The partition between the plaintiff and his father on 11.2.1971 is not accepted and the plaintiff's right in the suit property is denied. The truth and validity of the Will dated 11.2.1971 alleged to have been executed by Subbaroyalu Reddiar in favour of the plaintiff is not admitted. This defendant does not admit the testator's signature in the Will and that he was not in a sound and disposing state of mind, at the time when he made the Will on 16.12.1916. It is stated that the defendant's mother Nagammal enjoyed the property absolutely and she has executed a Will on 27.11.1974, while she was in a sound and disposing state of mind and bequeathed the suit property and other properties in her favour. The Will came to force on the date of death of testator, viz. Nagammmal i.e. On 17.1.1985. The original settlement deed is only in the custody of this defendant and not with the 1st defendant. Even during the life time of the testator, she had executed a registered deed of lease in favour of the 1st defendant and the property is in his possession. The 1st defendant continued to be in possession of the property even after the duration of the period mentioned in the lease as a tenant. He had also attorned the tenancy to this defendant. As the plaintiff has no title to the suit property, he is not entitled to claim damages or for future profits and prays for dismissal of the suit.
8. On the basis of the above said pleadings, the trial court framed necessary issues and the plaintiff was examined as PW.1 and two other witnesses were also examined as PWs.2 and 3 and marked Ex.B3 to A7. The 1st defendant was examined as DW.1 and two more witnesses have been examined and marked Ex.B1 to B3. Taking into consideration both the oral and documentary evidence, the trial court came to the conclusion that the plaintiff is entitled to the relief of declaration in respect of the suit property and denied the relief of possession, damages and profits. Aggrieved by the same, the plaintiff preferred an appeal in AS.No157/1988 and also filed an application in IA. No. 107/1989 for reception of certain documents and the 2nd defendant preferred an appeal in AS. No. 66/1989 and the lower appellate court has confirmed the judgment and decree of the trial court and dismissed both the appeals. Aggrieved by the same, the 2nd defendant has preferred SA. No. 1825/1989 and the plaintiff has preferred SA. No. 121/1990.
9. The property belonged to Kumarasamy, who by settlement deed, dated 12.1.1919 had given life estate to his daughter, Nagammal and vested remainder to his son Subbarayalu, is not in dispute. But, however, Subbarayalu predeceased Nagammal and that therefore, the life estate given to Nagammal had ripen into an absolute estate and the conditions stipulated in the settlement deed was not able to be fulfilled. Subbarayalu, according to the terms of the deed, would be entitled to the vested remainder only after the life time of Nagammal. But, Subbarayalu had predeceased Nagammal and the property could not vest in his heirs and that therefore, the partition said to have been made between Subbarayalu and his son Krishnaswami, the plaintiff herein, is also not valid.
10. Mr. V. Raghavachari, the learned advocate for the appellant/2nd defendant had made two fold submissions, viz. (1) The property bequeathed in Ex.B3, under which Nagammal was entitled to a life estate, has ripen into an absolute estate, as per Section 14(1) of the Hindu Succession Act and (2) Nagammal was not able to be maintained in her husband's family and therefore, she came back to her parent's house and she was a dependent as stated in the Hindu Minority and Guardianship Act and is entitled to be maintained in her parent's house and only in the said circumstances, her father Kumaraswami had executed Ex.B3 and therefore she is entitled to the suit property.
11. SA. No. 1825/1989 filed by the 2nd defendant was admitted on the following substantial question of law: -
i. Whether the court below ought not to have seen that the limited right or life interest granted in favour of Nagammal alias Kamakshi Ammal, under Ex.B3 gets enlarged and becomes absolute estate and all the restrictions imposed on it are obliterated by virtue of Section 14(1) of the Hindu Succession Act as interpreted by the Supreme Court in Gulwant Kaur and another v. Mohinder Singh : and that Subbarayalu Reddiar did not get any valid or subsisting title to the suit property?
12. SA. No. 121/1990 filed by the plaintiff was admitted on the following substantial question of law:-
i. Whether the courts below are right in giving a finding relating to the right of the defendant as a cultivating tenant under Section 16A of Act 10 of 1969, interpreted by the Full Bench in : and ignoring the very plea of the defendant that the civil court has no jurisdiction?
13. The whole question depends upon Ex.B3, i.e. Whether the limited right or life interest given in favour of Nagammal alias Kamakshi Ammal under Ex.B3 gets enlarged and becomes absolute estate, in view of the Section 14(1) of the Hindu Succession Act? and whether the beneficiary under Ex.B3, viz. Nagammal was a dependant, as contemplated under the Hindu Adoptions and Maintenance Act?
14. Mr. V. Raghavachari, the learned advocate for the 2nd defendant/appellant would contend that the right to enjoy the property given under Ex.B3 has ripen into an absolute estate, in view of the Section 14(1) of the Hindu Succession Act, which states, '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 14(2) states, 'Nothing contained in sub section (1) shall apply to any property acquire 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.'
15. Though Ex.B3 is styled as a settlement deed, the contents of the documents would go to show that what has been created was only a Will. The subtle difference between the Will and the Settlement Deed is that the Will come into operation only after the life time of the testator and the Will could be cancelled, modified or annulled. But, in the case of settlement deed, it would come into effect on the day, when it was executed, if the settlement deed was accepted on the same day or from the day on which the settlement deed was accepted by the settlee. If the settlement does not contain any conditions or contingencies, the settlement would be absolute and could not be cancelled and if it is cancelled, the same is not valid.
16. Now, let us see the recitals in Ex.B3, wherein it is stated, 'eP vdf;F Fkhuj;jp MdjpdhYk;. cd; g[Uc&d; ,we;j ehs; Kjy; vd;Dila rtuc&diapypUe;J vd;ida[k; ghJfhg;ghj;jp tUfpw ed;ikf;F cd; bgahpy; vdf;F gphpak; cz;lhap/ moapy; fz;l vdf;F ghj;jpakhd Rkhh; U:/200 kjpg;g[s;s brhj;ij ,e;j brl;oy;bkz;Lgj;jpuk; K:ykha; bfhLj;jpUg;gjhy;. eP ,d;WKjy; bfhz;L. moapy; fz;l brhj;jpd; tUk;gofis mDgtpj;Jf;bfhz;Lk; rh;f;fhh; jPh;itia ePna brYj;jpf;bfhz;Lk; tuntz;oaJ/ cdJ gpw;fhyk; vdJ Fkhud; Rg;g[uhaY bul;oahh; rh;tRje;jpuj;Jld; Mz;L mDgtpj;Jf;bfhs;st[k;/ ehd; rk;kjpj;J vGjpbfhLj;j brl;oy;bkz;L gj;jpuk;/'
17. In the deed, it is made clear that the testator's daughter became a widow and since that time, she has been under the care and protection of the testator and maintained by him and for her benefit, the property was settled in her favour. No doubt, she was given only the right to enjoy the property and after her life time, testator's son would get it absolutely. Though the deed has been titled as settlement deed, it is in the nature of the Will for the simple reason that the right of enjoyment alone was given to her and the vested remainder was given to the testator's son.
18. The learned advocate for the appellant vehemently relies upon the explanation to this section, wherein it is stated, '?... property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance,?? or by gift from any person, ??. at or after her marriage,??.'
19. The appellant further submits that what has been given under Ex.B3 is in lieu of maintenance and it may be a gift or Will and it makes no difference and it was given after her marriage and that therefore, the right held by Nagammal would fall under Section 14(1), though it would appear that Section 14(2) would attract.
20. The learned advocate for the appellant also relied upon certain words in Ex.B3, wherein it is sated that the beneficiary was under the care and protection of the testator, by referring to the words, 'vd;Dilia rtuc&diapypUe;J' and 'vd;ida[k; ghJfhg;ghj;jp tUfpw ed;ikf;F' and would submit that what has been given under Ex.B3 is only in lieu of maintenance and it has been given by her father, after her marriage, as she has become a widow in younger age and therefore, Section 14(1) alone would attract and not Section 14(2).
21. On the contrary, the learned advocate for the respondent would contend that the appellant after marriage belonged to the family of her husband and she is entitled to maintenance only from her husband's family and not from her parent's family. Even though, it may be true that the beneficiary came to the family of her father, what has been given under Ex.B3 would squarely fall under Section 14(2) of the Hindu Succession Act and not under Section 14(1).
22. This may be one of the peculiar cases, with which we come across. As per the condition in Ex.B3, the beneficiary was entitled to have only life interest and after her death, the person named under Ex.B3 has to take the property absolutely. But, however, the person to whom the property was given absolutely, did not outlive the life estate holder and that therefore, the very condition stipulated in Ex.B3 has become an impossible one. Further, it is stated in Ex.B3 itself that Nagammal came to her parent's family and she was under her parent's care and was also taking care of the settlor in Ex.B3 and only in the said circumstances, the property was given to her. Though it is not stated in so many words that the income from the property was to be enjoyed in lieu of maintenance, it is the very purpose for which, the income was given and that therefore, what was given to her was in lieu of maintenance and that therefore, it would get enlarged under Section 14(1) of the Act.
23. In fact, the appellant relied upon the case of Perianayagi Ammal v. Ratnavelu Mudaliar 47 MLJ 310 =1925 Mad 61 before the trial court, wherein it is stated, 'The Will before us is more consistent with the view that the testator intended that the daughter's son should get an estate only if he survived the daughter. In other words, that the son should survive the mother is a condition precedent to any estate vesting in him. If that is so, the son, having predeceased the mother, no estate vested in him and nothing descended to his father.'
24. But, however, the plaintiff relied upon the case of Bhagirathibai and another v. Lalchand Balaram and others : wherein it is stated, 'Will creating limited interest in favour of testator' widow B and vested interest in favour of his nephew, C - C predeceasing B - Vested interest held would pass to heirs of C.' Reliance is also placed upon the case of Subramanian Ayyar v. Subbaraya Ayyar (114-Indian Cases-558), wherein it is stated, 'Where a Hindu by his will made a disposition of a life estate in favour of his wife and provided that his son shall set the property after performing his mother's obsequies, but the son predeceased the mother. Held, that the son got a vested remainder in the property and his heirs were entitled to succeed to it.'
25. In both the cases referred to above, in the first case, the Will was in favour of the daughter and after his demise, the vested remainder was given to his daughter's son. In the case relied upon by the plaintiff, it was a Will created in favour of widow and vested remainder in favour of a nephew. Both the cases do not deal with the case of a widow, who was not able to be maintained in her husband's family and came and took shelter under her parent's family and she was under her parents care and protection and the property was given only in the said circumstances for her life and after her life the vested remainder to the testator's son. It is therefore argued that what was given under Ex.B3 was in lieu of maintenance and therefore, it was enlarged into an absolute estate under Section 14(1).
26. It is further argued that though it was styled as life estate and the vested remainder was given to testator's son, he having died prior to the beneficiary under Ex.B3, the estate would not devolve upon the heirs of the life estate holder and in that context also, Nagammal became the absolute owner of the suit property. As she became the absolute owner of the suit property, she had bequeathed the same to the 2nd defendant under Ex.B2.
27. Though the Will executed by Subbarayalu in favour of Krishna Reddy, the plaintiff under Ex.A4 and the Will executed by Nagammal in favour of Adhi Lakshmi under Ex.B2 were all disputed before the courts below, no argument has been advanced on those aspects and therefore, it has become unnecessary for this court to go in detail about those documents. In fact, both the learned advocates for the appellant and the respondent have restricted their argument only with regard to the settlement deed dated 12.10.1919 (Ex.B3) and in those circumstances only, Ex.B3 dated 10.12.1919 alone is taken up for consideration in this case.
28. As far as the question No. (ii) is concerned, whether Nagammal was a dependent, as contemplated under the Hindu Adoptions and Maintenance Act, 1956 and she is entitled to be maintained by her father has got to be considered.
29. Admittedly, Nagammal became a widow in her younger age and she came to her parent's house, as she was not able to be maintained in her husband's family and only in the said context, her father had executed Ex.B3 in her favour. The claim of maintenance of father, mother, widow, etc. is regulated under the Hindu Adoptions and Maintenance Act, 1956 (Act 78 of 1956). Section 18 deals with 'maintenance of wife' and Section 19 deals with 'maintenance of widowed daughter-in-law', who is entitled to be maintained after the death of her husband by her father-in-law on certain conditions. Section 20 deals with 'maintenance of children and aged parents' and Section 21 deals with 'dependants' and clause (vi) of Section 21 deals with 'widowed daughter', provided and to the extent that she is unable to obtain maintenance, (a) from the estate of her husband, or (b) from her son or daughter if any, or his or her estate; or (c) from her father-in-law or his father or the estate of either of them.
30. The 2nd defendant was not able to be maintained in and out of the estate of her husband or by her son or daughter or from her father-in-law and only in the said circumstances, she came to her parent's house and her father had executed Ex.B3 in her favour, wherein, it is clearly stated that since the date of death of her husband, she has been under the care and protection of her father and only in the said circumstances, he had given the property to defray her maintenance. From the recitals in Ex.B3, it could easily be inferred that she was not able to be maintained in and out of her husband's estate or from her son or daughter or from her father-in-law and that therefore, she is a dependant upon her father. Only in the said circumstances, her father executed the Will in her favour.
31. In order to invoke Section 14(1) of the Hindu Succession Act, 1956, there must be a pre-existing right in the testator's estate. The pre-existing right is a right in the testator's estate prior to the date, on which the Will came to be operated. As in our case, the property was held by the appellant's father, the appellant did not have any pre-existing right to succeed to his estate, under Section 8 of the Hindu Succession Act, 1956, which states,
'General rules of succession in the case of males' and states: The property of a male Hindu dying interstate shall devolve according to the provision of this Chapter:- (a) firstly, upon the heirs, being the relative specified in Class I of the schedule, (b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the schedule, (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased, and (d) lastly, if there is no agnate, then upon the cognates of the deceased.'
Though the daughter is grouped under Class I heir of the deceased male Hindu dying interstate, this contingency would be available only when the testator dying interstate and his daughter survives her father. This right will be a mere spes successions i.e. a chance to succeed to her father's property and not any pre-existing legal right and therefore, it is not possible to bring the right of the 2nd defendant within the purview of Section 14(1) of the Hindu Succession Act, 1956. But, however, the appellant's claim is sustainable under the Hindu Adoption and Maintenance Act, 1956, as we have already seen that Section 21 deals with 'dependants' and the father is liable to maintain his widowed daughter.
32. Section 22(2) of the Hindu Adoptions and Maintenance Act, 1956, states, 'Where a dependant has not obtained, by testamentary or interstate succession, any share in the estate of a Hindu dying after the commencement of this Act, the dependant shall be entitled, subject to the provisions of this Act, to maintenance from those who take the estate.'
33. The Supreme Court in the case of Balwant Kaur and another v. Chanan Singh and others 2000 3 MLJ 59 SC after dealing with Section 22(2) of the Hindu Adoptions and Maintenance Act, 1956, has held in para 15 that 'This statutory provision clearly indicates that once a person is found to be 'dependent' of the deceased, then such a 'dependent' has a pre-existing right qua the estate of the deceased to get maintenance and that right, if not crystallised by way of grant of definite share in the estate of the deceased either on his intestacy or on the coming into operation of his testament in favour of the dependent, then such pre-existing right of maintenance would remain operative even after the death of the Hindu and would get attached to the estate which may get transmitted to his heirs either on his intestacy or on account of the testamentary disposition in their favour. Thus, Section 22(2) underscores pre-existing right of maintenance in favour of the 'dependent' qua the estate of the Hindu Maintenance Act.' Therefore, the appellant being a daughter, during life time of her father, she has a legal right to be maintained by him and in lieu of the same, he had left Ex.B3. Explaining the right of widowed daughter, the Supreme Court in the above said case further observed in paragraphs 19 and 20 that 'Under the proviso to Section 19(1) the words used are '(a) from the estate of her husband or her father or mother' and they mean that she has a right apart from the right she has against the estate of her husband - a personal right against her father or mother during their respective lives. The words 'the estate of' before the words ' her husband' are not to be read into the latter part of the clause as 'estate of her father or mother. What the proviso does here is to create (i) a right against the estate of her husband and also (ii) an independent and personal right against the father during his life time (or against the mother) if the daughter is unable to maintain herself out of her earnings or other property etc. That right against the father during his life time can be enforced against the property he is holding. The legislature has deliberately not used the words 'estate of her father' in the proviso (a) to Section 19(1). That right of the widowed daughter is covered under Section 21(vi) read with Section 22(2). We have already referred to that right of maintenance against the estate of her father in Section 22(2) read with Section 21(vi). If indeed we read the words 'estate of' before the words 'father' in Section 19(1)(a), then Section 22(2) read with Section 21(vi) would become otiose. That is why we say that the proviso (a) to Section 19(1) creates a personal right in favour of the widowed daughter against her father during his life time. Any property given in lieu thereof, during his life time or to go to her after the father's life time would certainly fall under Section 14(1) of the Hindu Succession Act, 1956, that being in lieu of a pre-existing right during the father's life time. On facts, it must be held that the widowed daughter had a right against her father, during the latter's life time, as she was a destitute and not taken care of by her husband or his estate. It is in lieu thereof, he gave her 1/3rd share of his property.' Thus it is amply clear that the widowed daughter has a right against her father during his life time, which right is the pre-existing right and therefore, it would fall under Section 14(1) of the Hindu Succession Act. On that account, the property given to the appellant under Ex.B3 would fall within the scope and ambit of Section 14(1) of the Hindu Succession Act and therefore, the said property shall be held by her as a full owner and not as a limited owner and therefore, the appellant is entitled to succeed and not the respondent/plaintiff.
34. For the reasons stated above, the respondent/plaintiff is not entitled to any claim in the suit property and the question raised is answered in favour of the 2nd defendant/appellant.
35. In the result, SA. Nos. 1825/1989 is allowed and the judgment and decree of the courts below are set aside. No costs.
36. In view of the findings reached in SA. No. 1825/1989, it has become unnecessary to answer the question raised in SA. No. 121/1990. In the result, SA. No. 121/1990 filed by the plaintiff, who has partly succeeded before the courts below, is dismissed. No costs. The connected CMPs are allowed.