Supreme Court of India
Tej Bhan(D) Through Lr vs Ram Kishan (D) Through Lrs on 9 December, 2024
Author: Pamidighantam Sri Narasimha
Bench: Pamidighantam Sri Narasimha
REPORTABLE
2024 INSC 945
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6557 OF 2022
TEJ BHAN (D) THROUGH LR. & ORS. ...APPELLANT(S)
VERSUS
RAM KISHAN (D) THROUGH LRS. & ORS. …RESPONDENT(S)
ORDER
1. Interpreting Section 14 of the Hindu Succession Act, 1956 1, in V.
Tulasamma & Ors. v. Sesha Reddy (Dead) by LRs. 2”, Justice Bhagwati
observed that this is a classic instance of a statutory provision which,
by reason of its inapt draftsmanship, has created endless confusion for
litigants and has proved to be a paradise for lawyers. Raising concern
about the legislative indifference and interpretative difficulties
presented by sub-sections (1) and (2) of Section 14, leading to judicial
divergence, which might as well be described as chaotic, robbing the
law of that modicum of certainty which it must always possess, Justice
Signature Not Verified
Bhagwati observed;
Digitally signed by
KAPIL TANDON
Date: 2024.12.09
18:12:14 IST
Reason:
1 Hereinafter the ‘Act’.
2 (1977) 3 SCC 99.
1
“67. ….. The question is of some complexity and it has evoked
wide diversity of judicial opinion not only amongst the different
High Courts but also within some of the High Courts themselves.
It is indeed unfortunate that though it became evident as far
back as 1967 that sub-sections (1) and (2) of Section 14 were
presenting serious difficulties of construction in cases where
property was received by a Hindu female in lieu of maintenance
and the instrument granting such property prescribed a
restricted estate for her in the property and divergence of judicial
opinion was creating a situation which might well be described
as chaotic, robbing the law of that modicum of certainty which it
must always possess in order to guide the affairs of men, the
legislature, for all these years, did not care to step in to remove
the constructional dilemma facing the courts and adopted an
attitude of indifference and inaction, untroubled and unmoved
by the large number of cases on this point encumbering the files
of different courts in the country, when by the simple expedient
of an amendment, it could have silenced judicial conflict and put
an end to needless litigation. This is a classic instance of a
statutory provision which, by reason of its inapt draftsmanship,
has created endless confusion for litigants and proved a
paradise for lawyers….”
2. With this trepidation, they proceeded to resolve the confusion
surrounding the interplay between sub-sections (1) and (2) of Section
14 of the Act and to enunciate the principles that govern disposition of
property in favour of Hindu female. The principles formulated in
Tulsamma, as extracted in paragraph 4 of this judgment, substantially
hold the field. However as of date, there are atleast 18 judgments from
this Court comprising decisions from two and three Judge benches that
are varying and sometimes inconsistent with the view taken in
Tulsamma’s case. While arriving at their respective decisions, these
judgments sought to explain, distinguish, negotiate or ignore the
principles in Tulsamma and in the process they have either
contradicted Tulsamma or implicitly departed from its principles sub-
2
silentio. Almost four decades after the judgment in Tulsamma, we have
two streams of thoughts. While the first applies principles in Tulsamma
as an inviolable principle steadfastly holding that property possessed
by a Hindu female before or after the commencement of the Act shall
be held by her as a full owner. The other seems to be evolving from case
to case, influenced by, i) the method and manner by which the Hindu
female is possessed of the property, ii) the instrument through which
the right is acquired, and iii) the time at which such possession takes
place, to mention a few.
3. Having gone through the precedents in detail, our endeavour was
to reconcile the judgments and restate the principles with clarity and
certainty. However, in view of the fact that we are in a combination of
a two-Judge bench, such an exercise will not be fruitful as our
judgment would be subject to the decision of many three Judge
benches which need to be reconciled. The issue is of utmost importance
as it affects the rights of every Hindu female, her larger family and such
claims and objections that may be pending consideration in almost all
original and appellate courts across the length and breadth of the
country. It is absolutely necessary that there must be clarity and
certainty in the position of law that would govern proprietary interests
of parties involving interpretation of Section 14.
3
4. In this view of the matter, we have directed the Registry to place
our order along with the appeal paper book before the Hon’ble Chief
Justice of India for referring the matter to an appropriate larger bench.
In order to assist the Hon’ble CJI, we have reviewed the precedents that
have caused some inconsistencies and uncertainties.
5. Before we examine the precedents in detail, the short facts
involved in the present appeal are as under:
6. The appellant before the court is the purchaser of the suit
scheduled property under a sale deed dated 02.03.1981 executed by
the wife of one Kanwar Bhan, the testator, who was the original owner
of the property. Mr. Kanwar Bhan during his lifetime executed a will
dated 03.03.1965 in favour of his wife. The will created a life estate in
favour of his wife. The relevant portion of the will creating the life estate
is as under:
“After my death, whatever rights I will be having in my above
said property, in that eventuality, out of the land situated at
village Nalvi Kalan, my wife Smt.Lachhmi Bai shall be having
ownership of land measuring about 2½ Acre comprised in
Rectangle No.4, Killa No.17/2, 18, 19/1, 23/1, and she will be
entitled to maintain herself out of the proceeds from the same.
She will not be entitled to mortgage or sell the said land. Of the
remaining property, my son Shri Mool Chand will be owner to the
extent of 1/2 share and Ram Kishan and Nand Lal sons of Shri
Mool Chand (my grand-sons), will be absolute owners of 1/2
share in equal shares. My wife Smt.Lachhmi Bai will be owner,
of the houses situated at village Kunjpura and she will be
entitled to reside in the said house or to rent out the same. She
will not be able to mortgage or sell the same. After her death, my
son Shri Mool Chand will be absolute owner of the same to the
extent of 1/2 share and my grand-sons Shri Ram Kishan Lal and
Nand Lal to the extent of 1/2 share.”
4
7. After the execution of the above referred will, the testator Kanwar
Bhan died on 11.10.1965. As indicated earlier, his wife executed a sale
deed in favour of the appellant herein leading to the son and grandson
of Tej Bhan instituting a suit for declaration that the sale deed in favour
of the petitioner is void and also sought delivery of possession.
8. In its judgment dated 31.01.1986, the Trial Court relied on
decision in Tulsamma’s case and held that the property given to the
wife of Kanwar Bhan is in the nature of maintenance and such a pre-
existing right shall enlarge into full estate. Rejecting the contention of
the respondent plaintiffs based on Section 14(2) and also rejecting the
applicability of the judgment of this Court in Karmi v. Amru 3 and certain
other decisions of the same High Court, the Trial Court dismissed the
suit. Even in the first appeal, the respondent-plaintiffs relied on Karmi
(supra) and certain other decisions of this Court to submit that the
disposition of the property by the wife of the testator falls under sub-
section (2) of Section 14. The First Appellate Court dismissed the appeal
and affirmed the decision of the Trial Court following the principle in
Tulsamma and also rejected the submission of the respondent based
on Karmi’s decision. The High Court, from which the impugned order
arises reversed the concurrent findings of the court below only on a
3
(1972) 4 SCC 86
5
question of law. According to the High Court, the correct principles
were laid down in the decision of Sadhu Singh v. Gurdwara Sahib
Narike & Ors4.
9. Mr. Dhruv Mehta, learned senior counsel appearing on behalf of
the appellant submitted that Sadhu Singh (supra) is wrongly decided
and is contrary to the principles laid down in Tulsamma. He has also
referred to a number of other decisions such as Gulwant Kaur v.
Mohinder Singh 5, Thota Sesharathamma v. Thota Manikyamma6,
Balwant Kaur v. Chanan Singh & Ors.7, Shakuntala Devi v. Kamla8,
Jupudy Pardha Sarathy v. Pentapati Rama Krishna 9 and V.
Kalyanaswamy v. L. Bakthavatsalam10. On the other hand, Mr. Sunil
K. Mittal, learned counsel for the respondents has submitted that the
decision of Karmi (supra) is of a three-Judge bench and it has not been
overruled. He would further submit that the said judgment was in fact
followed in Bhura and Ors. v. Kashiram11 where the position of law
involving interplay between sub-section 1 and 2 of Section 14 has been
explained. He would also rely on the decision in Sadhu Singh (supra)
which was also relied on by the High Court. Further, it was submitted
4 (2006) 8 SCC 75
5 (1987) 3 SCC 674
6 (1991) 4 SCC 312
7 (2000) 6 SCC 310
8 (2005) 5 SCC 390
9 (2016) 2 SCC 56
10 (2021) 16 SCC 543
11 (1994) 2 SCC 111
6
that judgments in Gaddam Ramakrishnareddy and Ors. v. Gaddam
Ramireddy and Anr.12, Jagan Singh (Dead) through LRs. v. Dhanwanti
and Anr.13, Shivdev Kaur (Dead) by LRs. and Ors. v. RS Grewal14, Ranvir
Dewan v. Rashmi Khanna and Anr. 15 and Jogi Ram v. Suresh Kumar
and Ors16 adopt the same line.
10. We will first reproduce Section 14 of the Act, before referring and
reviewing the judgments of this Court interpreting the Section.
“Sec 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.
(2) 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.”
11. We will commence with a 1967 judgment of this Court in Mangal
Singh and Ors. v. Rattno (Dead) by LRs. and Anr.17. In this decision,
12
(2010) 9 SCC 602
13 (2012) 2 SCC 628
14 (2013) 4 SCC 636
15 (2018) 12 SCC 1
16 (2022) 4 SCC 274
17 AIR 1967 SC 1786
7
the court explained the scope and ambit of the expression of “any
property possessed by a female Hindu” in Section 14(1) of the Act. In
Seth Badri Prasad v. Smt. Kanso Devi 18, a three Judge bench observed
that sub-section (2) of Section 14 is more in the nature of a proviso or
an exception to sub-section (1) and it comes into operation if
acquisition of the property by a female Hindu is made through any of
the methods mentioned therein for the first time and without their
being any pre-existing right.
12. Tulsamma was decided in 1977. It referred 19 to a number of
decisions of this Court and that of the High Courts and has followed 20,
approved 21 or overruled 22 them.
18 (1969) 2 SCC 586
19 Referred to: Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva (1959) Supp 1 SCR
968; RBSS Munna Lal v. SS Rajkumar (1962) Supp 3 SCR 418, Mangal Singh v. Rattno AIR 1967 SC
1786; Narayan Rao Ramachandra Pant v. Ramabai LR 5 IA 114; Mst Dan Kuer v. Mst Sarla Devi LR
73 IA 208; Pratapmull Agarwalla v. Dhanabati Bibi LR 63 IA 33; Namangini Dasi v. Kedarnath Kundu
Chowdhry ILR 16 Cal 758 (PC).
20 Followed: Seth Badri Parsad v. Smt. Kanso Devi (1969) 2 SCC 586; Nirmal Chand v. Vidya Wanti
(1969) 3 SCC 628; Rani Bai v. Yadunandan Ram (1969) 1 SCC 604; RBSS Munnalal v. SS Raj Kumar
(1962) Supp 3 SCR 418; Eramma v. Veerupana (1966) 2 SCR 626; Mangal Singh v. Rattno (1967) 2
SCR 454; Sukhram v. Gauri Shankar (1968) 1 SCR 476;
21 Approved: B.B. Patil v. Gangabai, AIR 1972 Bom 16, Sumeshwar Misra v. Swami Nath Tiwari AIR
1970 Pat 348; Gadew Reddayya v. Varapula Venkataraju AIR 1965 AP 66; Lakshmi Devi v. Shankar
Jha AIR 1967 Mad 428; H Venkanagouda v. Hanamanagouda AIR 1972 Mys 286; Smt Sharbati Devi
v. Pt. Hiralal AIR 1964 Punj 114; Seshadhar Chandra Devi v. Tara Sundari Dasi AIR 1962 Cal 438;
Saraswathi Ammal v. Anantha Shenoi AIR 1966 Ker 66; Kunji Thomman v. Meenakshi ILR (1970) 2
Ker 45; Sumeshwar Mishra v. Swami Nath Tiwari AIR 1970 Pat 348; Sasadhar Chandra Day v. Tara
Sundari Dasi AIR 1962 Cal 438.
22 Overruled: Naraini Devi v. Ramo Devi (1976) 1 SCC 574, Gurunadham v. Sundrarajulu ILR (1968)
1 Mad 467; Santhanam v. Subramania ILR (1967) 1Mad 68; S Kachapalaya Gurakkal v. Subramania
Gurukkal AIR 1972 Mad 219; Shiva Pujan Rai v. Jamuna Missir ILR (1947) Pat 1118; Gopisetti
Kondaiah v. Gunda Subbarayudu ILR (1968) AP 621; Ram Jag Misir v. Director of Consolidation AIR
1975 All 151; Ajab Singh v. Ram Singh AIR 1959 J&K 92; Narayan Patra v. Tara Patrani (1970) 36
Cut LT 567; Gopisetty Kondaiah v. Gunde Subbarayodu ILR 1968 AP 621; Gurunadham v.
Sundrajulu Chetty ILR (1968) 1 Mad 567.
8
The principles that were formulated in this landmark decision are as
follows;
“(1) The Hindu female’s right to maintenance is not an empty
formality or an illusory claim being conceded as a matter of grace
and generosity, but is a tangible right against property which
flows from the spiritual relationship between the husband and
the wife and is recognised and enjoined by pure Shastric Hindu
Law and has been strongly stressed even by the earlier Hindu
jurists starting from Yajnavalkya to Manu. Such a right may not
be a right to property but it is a right against property and the
husband has a personal obligation to maintain his wife and if he
or the family has property, the female has the legal right to be
maintained therefrom. If a charge is created for the maintenance
of a female, the said right becomes a legally enforceable one. At
any rate, even without a charge the claim for maintenance is
doubtless a pre-existing right so that any transfer declaring or
recognising such a right does not confer any new title but merely
endorses or confirms the pre-existing rights.
(2) Section 14(1) and the Explanation thereto have been couched
in the widest possible terms and must be liberally construed in
favour of the females so as to advance the object of the 1956 Act
and promote the socio-economic ends, sought to be achieved by
this long needed legislation.
(3) Sub-section (2) of s. 14 is in the nature of a proviso and has a
field of its own without interfering with the operation of s.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 s. 14(1) or in a way so as to become totally
inconsistent with the main provision.
(4) Sub-section (2) of s. 14 applies to instruments, decrees,
awards, gifts etc. which create independent and new titles in
favour of the females for the first time and has no application
where the instrument concerned merely seeks to confirm,
endorse, declare or recognise preexisting rights. In such cases a
restricted estate in favour of a female is legally permissible and
s. 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 en-
larged into an absolute one by force of s. 14(1) and the
restrictions placed, if any, under the document would have to be
ignored. Thus where a 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 subsection (2) and would
9
be governed by s. 14(1) despite any restrictions placed on the
powers of the transferee.
(5) The use of express terms like “property acquired by a female
Hindu at a partition”, “or in lieu of maintenance”, “or arrears of
maintenance” etc. in the Explanation to s. 14(1) clearly makes
sub-s. (2) inapplicable to these categories which have been
expressly excepted from the operation of sub-s. (2).
(6) The words “possessed by” used by the Legislature in s. 14(1)
are of the widest possible amplitude and include the state of
owning a property even though the owner is not in actual or
physical possession of the same: Thus, where a widow gets a
share in the property under a preliminary decree before or at the
time when the 1956 Act had been passed but had not been given
actual possession under a final decree, the property would be
deemed to be possessed by her and by force of s. 14(1) she
would get absolute interest. in the property. It is equally well
settled that the possession of the widow, however, must be
under some vestige of a claim, right or title, because the section
does not contemplate the possession of any trespasser without
any right or title.
(7) That the words “restricted estate” used in s. 4(2) are wider
than limited interest as indicated in s. 14(1) and they include not
only limited interest, but also any other kind of limitation that
may be placed on the transferee.”
13. The decision in Tulsamma (supra) was followed in the case of
Gulwant Kaur v. Mohinder Singh 23 and this was affirmed by a three-
Judge bench in Jaswant Kaur v. Major Harpal Singh 24.
14. In a 1991 decision, a two-Judge bench in Thota Sesharathamma
(supra), while following the decision in Tulsamma (supra), noticed
another three-Judge bench decision in Karmi (supra) which was not
noticed in Tulsamma. Having examined the matter in detail, one of the
Judges observed that the decision in Karmi (supra) “is a short judgment
23 Id no. 5- See para nos. 4 and 9.
24
(1989) 3 SCC 572.
10
without adverting to any provisions of Section 14(1) or 14(2) of the Act.
The judgment neither makes any mention of any argument raised in this
regard nor there is any mention of the earlier decision in Badri Pershad
v. Smt Kanso Devi. The decision in Mst Karmi cannot be considered as
an authority on the ambit and scope of Section 14(1) and (2) of the Act”25.
Taking a similar stand, the concurring Judge held that in Karmi (supra)
“the attention of this Court to Section 14(1) was not drawn nor had an
occasion to angulate in this perspective. Therefore, the ratio therein is of
little assistance to the appellant”26.
15. It is true that the decision in Karmi (supra) neither analysed the
provisions of the Act nor has considered the purpose and object of
Section 14 and the precedents on this subject. However, the principle
on the basis of which the Court in Karmi (supra) decided the case
resonates in many subsequent decisions which have in fact followed it
as a precedent.
16. A 1996 decision of this Court in the case of C. Masilamani
Mudaliar and Ors. v. Idol of Sri Swaminathaswami Swaminathaswami
Thirukoil and Ors27 is important for the reason that it is of a three
25
Id n 6 – See para 10
26
Ibid – See para 29
27 (1996) 8 SCC 525
11
Judge bench and it identifies a discordant note in a subsequent case
of a two Judge bench in Gumpha v. Jaibai 28, the court observed that :
“28. In Gumpha case though the Will was executed in 1941 and
the executor died in 1958 after the Act had come into force, the
concept of limited right in lieu of maintenance was very much in
the mind of the executor when Will was executed in 1941 but
after the Act came into force, the Will became operative. The
restrictive covenant would have enlarged it into an absolute
estate; but unfortunately the Bench had put a restrictive
interpretation which in our considered view does not appear to
be sound in law.”
17. The above referred decision in Masilamani Mudaliar (supra) was
followed in Bhoomireddy Chenna Reddy v. Bhoospalli Pedda Verrappa29
and V. Kalyanaswamy v. L. Bakthavatsalam, Nazar Singh v. Jagjit
Kaur 30, Balwant Kaur (supra), Shakuntala Devi (supra), Santosh & Ors.
v. Smt Saraswathibai & Anr31, Jupudy Pardha Sarathy (supra) as well
as the recent, Munni Devi Alias Nathi Devi (D) v. Rajendra Alias Lallu Lal
(D)32 and Kallakuri Pattabhiramswamy (D) Through LRs v. Kallakuri
Kamaraju & Ors33 are other decisions that have followed Tulsamma
(supra).
18. The other stream of thought seems to have originated in a three-
Judge bench of this Court in Karmi (supra) about which we have
28 (1994) 2 SCC 511
29 (1997) 10 SCC 673
30 (1996) 1 SCC 35
31 (2008) 1 SCC 465
32 (2022) 17 SCC 434
33 2021 INSC 883; in addition to Tulasamma this case also relied on Raghubar Singh v. Gulab Singh
(1998) 6 SCC 314, Mangat Mal v. Punni Devi (1995) 6 SCC 88 and Jaswant Kaur v. Harpal Singh
(1989) 3 SCC 572.
12
already mentioned. The conclusion in this decision is drawn from a
different perspective of statutory construction, elucidation of which is
seen in the subsequent decision of this Court in Bhura (supra).
However, it is only in Gumpha (supra) that the principle of the alternate
thoughts are formulated as under:
1. While qualifying the law relating to intestate succession, to
become a complete code, the Act also deals with testamentary
succession. In Section 30, the law which had been judicially
expounded is incorporated by creating absolute power in a
Hindu to dispose of his property by will. This power extends to
creating restricted right in favour of a female.
2. Will under Indian Succession Act, applies to Hindu Succession
Act as well, operates from the date of death of the testator.
3. Position of the property contemplated in Section 14(1) cannot
include acquisition by will.
4. The expression, ‘any manner whatsoever’, will not include a
will, which is specifically mentioned in Section 14(2).
5. Even though the instances in the explanation are not
exhaustive, it cannot include disposition by way of a will under
Section 14(2).
6. Parliament has never intended to confirm a higher right on a
Hindu female, than what was enjoyed by a male Hindu.
7. Possession under Section 14(1) must be legal, therefore if the
position is placeable to a will, then she cannot get a higher right
than what is stipulated in the document.
8. A combined reading of the Sections is that when the law
attempts to remove the disability imposed by customary Hindu
law, it does not enlarge and exchange the right she will get under
a will.
9. The judgement in the case of Thota (supra) is not relevant for
interpretation. As in that case, the testator died before the Hindu
Succession Act came into force and the widow was in possession
as limited owner and her rights became absolute.
10. In the present case succession opened after the Act has come
into force.
13
19. In the above referred decision of this Court in Gumpha (supra), the
Court distinguishes the decision in Thota Sesharathamma (supra) on
the ground that the testator died before the commencement of the
Hindu Succession Act.
20. The next important decision of this Court is Sadhu Singh (supra)
the principle as formulated in this judgment can be restated as under:
1. A hindu wife is entitled to be maintained by her husband
u/s.18 HAMA and a hindu widow, being a dependent u/s.21
HAMA, is entitled to claim maintenance from heirs of her
husband u/s.22 HAMA to the extent of the estate inherited
by them. Further, s.28 HAMA entitles her to claim
maintenance against a transferee even. However, this
aforesaid entitlement nowhere allows her to create a charge
on her husband’s property. In fact, s.27 HAMA expressly
states to the contrary.
2. The test therefore is to look at the nature of right acquired by
a female hindu – If she takes as an heir, she does it
absolutely. But if it’s under a devise, then any restriction
placed will apply in view of s.14(2).
3. S.30 is an affirmation to an owner’s right to deal with his
property. Thus, when an owner executes a will, laying down
the bequest with respect to his estate, the legatee takes
subject to terms therein. S.14(2) reaffirms the affirmation in
s.30. Any interpretation of s.14(1) which renders s.14(2) and
s.30 otios cannot be allowed.
4. Ratio in Tulasamma has application only when a female
Hindu is possessed of the property on the date of the Act
under semblance of a right (limited or pre-existing). The
decision in Karmi can only be justified on the premise that the
widow had no pre-existing right in the self-acquired property
of her husband. Decision in Bhura and Sharad14
Subramanyan Vs. Soumi Mazumdar & Ors. 34 is along the
same lines.
5. Thus, the essential ingredients for determining application of
s.14(1) are as follows – 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.
6. 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.
21. As this judgment is argued to be contrary to the principles laid
down in Tulsamma and also bad in law for the reason that it is a
decision of a two-Judge bench, it is necessary to extract the portion of
the judgment. The extract will also indicate how Tulsamma was
understood and analysed in this judgment. The relevant portion of this
judgment is extracted herein for ready reference:
“4. Under Section 18 of the Hindu Adoptions and Maintenance
Act, a Hindu wife is entitled to be maintained by her husband
during her lifetime, subject to her not incurring the
disqualifications provided for in sub-section (3) of that section.
The widow is in the list of dependants as defined in Section 21
of the Act. The widow remains a dependant so long as she does
not remarry. Under Section 22, an obligation is cast on the heirs
of the deceased Hindu to maintain the dependant of the
deceased out of the estate inherited by them from the deceased.
Under sub-section (2), where a dependant has not obtained by
testamentary or intestate succession, any share in the estate of
a Hindu dying after the commencement of the Act, the
dependant would be entitled, but subject to the provisions of the
Act, to maintenance from those who take the estate. It is seen
that neither Section 18 relating to a wife nor Section 21 dealing
with a widow, provides for any charge for the maintenance on
the property of the husband. To the contrary, Section 27
specifies that a dependant’s claim for maintenance under that
34 (2006) 8 SCC 91
15
Act, shall not be a charge on the estate of the deceased unless
one would have been created by the will of the deceased, by a
decree of court, by an agreement between the dependant and
the owner of the estate or otherwise. Thus a widow has no
charge on the property of the husband. Section 28 provides that
where a dependant had a right to receive maintenance out of
an estate, that right could be enforced even against a transferee
of the property if the transferee had notice of the right, or if the
transfer is gratuitous, but not against a transferee for
consideration without notice of the right. Section 28 is in pari
materia with Section 39 of the Transfer of Property Act. The
Kerala High Court in Kaveri Amma v. Parameswari Amma [AIR
1971 Ker 216 : 1971 KLT 299] has liberally interpreted the
expression “right to receive maintenance” occurring in the
section as including a right to claim enhanced maintenance
against the transferee. The sum and subtotal of the right under
the Hindu Adoptions and Maintenance Act is only to claim
maintenance and the right to receive it even against a
transferee. In the absence of any instrument or decree providing
for it, no charge for such maintenance is created in the separate
properties of the husband.
11. On the wording of the section and in the context of these
decisions, it is clear that the ratio in V. Tulasamma v. Shesha
Reddy [(1977) 3 SCC 99 : (1977) 3 SCR 261] 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. Tulasamma [(1977)
3 SCC 99 : (1977) 3 SCR 261] 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) 6 SCC 314 : AIR 1998 SC 2401] 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 pre-existing right.
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In Karmi v. Amru [(1972) 4 SCC 86 : AIR 1971 SC 745] 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 v. Kashi Ram [(1994) 2 SCC 111] 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) 8 SCC 91
: JT (2006) 11 SC 535] 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 [(1977) 3 SCC 99 : (1977) 3 SCR 261] . 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.
13. An owner of property has normally the right to deal with
that property including the right to devise or bequeath the
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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.
14. 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 otiose. 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.”
22. It is important to note that except, Karmi (supra), the decisions in
Bhura, Gumpha and Sadhu Singh (supra) are all by two Judge benches.
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The larger perspective in which Section 14 was interpreted holistically
commenced from Karmi and was followed in many subsequent cases.
Some of the decisions in the same line are Gaddam Ramakrishnareddy,
Jagan Singh, Shivdev Kaur, Ranvir Dewan and Jogi Ram (supra).
23. We have noticed that while following Tulsamma, the subsequent
decisions in Thota Sesharathamma, Masilamani Mudaliar and
Shakuntala Devi (supra) have made passing observations about the
discordant note in the case of Karmi, Bhura and Gumpha (supra) but
they have not been clearly and categorically overruled. Perhaps this is
the reason why the subsequent decisions consistently followed the idea
in Karmi and enunciated different principles in the subsequent
decisions of Gumpha, Sadhu Singh (supra) and that perspective
continued on its own strength.
24. We heard the present appeal in detail and have also taken a view
in the matter, but having realised that there are a large number of
decisions which are not only inconsistent with one another on principle
but have tried to negotiate a contrary view by distinguishing them on
facts or by simply ignoring the binding decision, we are of the view that
there must be clarity and certainty in the interpretation of Section 14
of the Act.
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25. In view of the above, we direct the Registry to place our order along
with the appeal paper book before the Hon’ble Chief Justice of India for
constituting an appropriate larger bench for reconciling the principles
laid down in various judgments of this Court and for restating the law
on the interplay between sub-section (1) and (2) of Section 14 of the
Hindu Succession Act.
………………………………….J.
[PAMIDIGHANTAM SRI NARASIMHA]
………………………………….J.
[SANDEEP MEHTA]
NEW DELHI;
DECEMBER 09, 2024.
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