AJIT KAUR @ SURJIT KAURversusDARSHAN SINGH (DEAD) THROUGH LRS. & ORS.

                         [2019] 6 S.C.R. 443                             443


              AJIT KAUR @ SURJIT KAUR                                    A
                             v.
     DARSHAN SINGH (DEAD) THROUGH LRS. & ORS.
               (Civil Appeal No. 226 of 2010)
                       APRIL 04, 2019
                                                                         B
     [A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]
       Hindu Succession Act, 1956: s. 14(1) – Property of a female
Hindu to be her absolute property – Mere possession of property
by a female, if sufficient to claim right u/s. 14(1) – Held: Mere
possession would not confer pre-existing right of possession over
the subject property to claim full ownership rights after the Act,       C
1956 came into force by operation of law – Section 14(1) clearly
envisage that the possession of the female must be under some vestige
of a claim, right or title or under any of the devise which has been
purported under the law – On facts, claim of the appellant-daughter
from the second marriage, that property orally gifted to her mother      D
by her father in 1950, became her mother’s absolute property after
the commencement of the 1956 Act, and Will executed by the father
could not operate qua that property even if it is assumed to be valid,
cannot be accepted – Appellant though was holding possession but
not any valid possession over the subject property and opening of
fiscal proceedings would not confer a right of acquisition by either     E
of the devise which has been referred to under the explanation to
s. 14(1).
      Dismissing the appeal, the Court
      HELD: 1.1 The concurrent finding of fact has been recorded
                                                                         F
by the High Court in the regular second appeal in separate
proceedings initiated in reference to Will held to be validly
executed and based on the recital of the Will, it was held that the
plaintiffs became entitled to succeed to the entire property of B-
deceased including the land in dispute to the exclusion of
defendant-appellant. The finding of fact recorded under the              G
impugned judgment in reference to a later Will on which much
emphasis was laid by the appellant, it was observed that the
propounder of the Will was legally required not only to prove the
due execution of the Will but also to dispel all suspicious
circumstances which may have existed in its due execution of
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                                 443
444            SUPREME COURT REPORTS                      [2019] 6 S.C.R.


A     the said Will and it was observed that the later Will claimed by
      the present appellant cannot be taken to be duly proved and being
      a finding of fact duly supported by the material on record, there
      is no perversity or manifest error in the finding to be reviewed
      by this Court in the instant appeal. [Para 13][450-D-G]
B            1.2 The mutation of a property in the revenue records are
      fiscal proceedings and does not create or extinguish title nor has
      it any presumptive value on title. It only enables the person in
      whose favour mutation has been ordered, to pay the land revenue.
      At the same time, the effect of a declaratory decree to restore
      the property alienated to the estate of the alienor and until and
C     unless the alienees are able to convince the court that they have
      no subsisting interest in the property, the heirs of the alienees
      would be entitled to the benefits of the property as per the law of
      succession. The effect of the operation of the said declaratory
      decree would be to restore the land in dispute to the said estate
D     of B-deceased and the succession would be deemed to have
      opened on 27.03.1973 when B died. On his death, the estate left
      behind him including the land in dispute would devolve upon his
      heirs as per their entitlement and after the registered Will dated
      5.01.1973 has been upheld by the High Court and attained finality,
      its consequence was to follow accordingly. [Para 14][450-G-H;
E     451-A-C]
             1.3 The submission of the appellant that the appellant being
      in possession of the subject property in question at the time when
      Hindu Succession Act, 1956 came into force and by virtue of
      Section 14(1) became an absolute owner of the subject property
F     and the decree being a nullity is inexecutable and it is a
      jurisdictional error against the policy of legislature, cannot be
      accepted since Section 14(1) of the Act, 1956 clearly envisage
      that the possession of the widow, however, must be under some
      vestige of a claim, right or title or under any of the devise which
      has been purported under the law. In the instant case, the appellant
G     was not holding any valid possession over the subject property
      and opening of fiscal proceedings would not confer a right of
      acquisition by either of the devise which has been referred to
      under the explanation to Section 14(1) of the Act, 1956.
      [Para 15][451-C-E]
H
    AJIT KAUR @ SURJIT KAUR v. DARSHAN SINGH (D)                            445
                      THR. LRS.

      1.4 In the instant case, the appellant although was holding           A
possession but not under any of the devise referred to under
explanation to Section 14(1) of the Act, 1956 and mere possession
would not confer pre-existing right of possession over the subject
property to claim full ownership rights after the Act, 1956 came
into force by operation of law and this what was considered and
                                                                            B
negated by the High Court in the impugned judgment.
[Para 20][456-E-F]
       Eramma v. Veerupana and Others AIR 1996 SC 1879 ;
       V. Tulasamma and Others v. Sesha Reddy(Dead) by LRs
       (1977) 3 SCC 99 : [1977] 3 SCR 261
       – referred to.                                                       C

                         Case Law Reference
       AIR 1996 SC 1879          referred to               Para 16
       [1977] 3 SCR 261          referred to               Para 17
                                                                            D

       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 226 of
2010
      From the Judgment and Order dated 28.07.2004 of the High Court
of Punjab and Haryana at Chandigarh in RSA No. 166 of 1984.                 E
       J. M. Khanna, Ms. Tanuj Bagga Sharma, Ms. Sheefali Khanna
Sethi, Advs. for the Appellants.
      Rajinder Mathur, Ms. S. Janani, Ms. Shruti Bist, Nishant Kumar,
Advs. for the Respondents.
                                                                            F
       The Judgment of the Court was delivered by
       RASTOGI, J.
       1. This is the defendant’s appeal by special leave against the
judgment of the High Court of Punjab and Haryana at Chandigarh dated
28th July, 2004 and arises in the following circumstances.                  G
      2. Original plaintiffs, Darshan Singh son of Bhana, and Amriti and
Udhi alias Iqbal Kaur, daughters of Bhana filed a suit for possession of
the subject land in dispute. It was claimed by the plaintiffs that Bhana,
son of Moti was the original owner of the subject properties in dispute.
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446             SUPREME COURT REPORTS                           [2019] 6 S.C.R.


A     The plaintiffs along with one Gurdev Kaur were the children of aforesaid
      Bhana from his first wife Bhago and after the death of his wife(Bhago),
      Bhana was remarried to Smt. Banti but because of strained relations of
      Bhana and Smt. Banti, they started living separately. There was even a
      litigation between them. Bhana and Smt. Banti had a daughter, namely,
      Ajit Kaur(appellant) from the aforesaid wedlock. To settle the dispute
B
      between them, Bhana parted the suit land to Smt. Banti by way of gift
      for her maintenance way back in the year 1950. In furtherance thereof,
      mutation was also entered in favour of Smt. Banti bearing no. 3813
      sanctioned on 25th February, 1950. The aforesaid gift came to be
      challenged by the original plaintiff Darshan Singh in a Civil Suit No. 103/
C     1953 for declaration under the customary law. It was claimed by him
      that the aforesaid gift by late Bhana in favour of Smt. Banti qua the
      ancestral property would not affect the reversionary rights of Darshan
      Singh(original plaintiff). The aforesaid civil suit filed at the instance of
      Darshan Singh was decreed by the learned trial Court vide judgment
      dated 30th June, 1954 and it was held that the aforesaid gift by late
D
      Bhana in favour of Smt. Banti would not affect the reversionary rights
      of Darshan Singh and would operate only during the life time of Bhana.
      The Civil Appeal No. 101/1954 preferred by Banti against the aforesaid
      judgment and decree was dismissed by learned District Judge vide
      judgment dated 29th November, 1954 and the Regular Second Appeal
E     No. 193/1955 filed at her instance(Smt. Banti) came to be dismissed by
      the High Court on 3rd November, 1959. It was claimed that Smt. Banti
      was to continue to have the rights in the property only during the life
      time of Bhana and was not an absolute owner. Since Bhana died on 27 th
      March, 1973 and prior to his death, he had executed a registered will
      dated 5th January, 1973 whereby he bequeathed his estate in favour of
F
      plaintiffs Darshan Singh and others by excluding Smt. Banti and Smt.
      Ajit Kaur, original (defendant no. 1) and (defendant no. 25) appellant
      herein and other daughter Gurdev Kaur. In reference to the aforesaid
      will dated 5th January, 1973, Civil Suit No. 15/1975 was filed by the
      plaintiff for possession. The appellant contested the suit and it was
G     claimed by her that Banti was the absolute owner of the suit property.
      She even denied the earlier litigation between the parties whereby
      reversionary rights of Darshan Singh came to be upheld. The will as
      claimed by the plaintiffs dated 5th January, 1973 was also contested.
            3. On the other hand, the appellant in separate litigation between
H     the parties reached upto the Regular Second Appeal no. 933/1984 and
    AJIT KAUR @ SURJIT KAUR v. DARSHAN SINGH (D)                                447
                THR. LRS. [RASTOGI, J.]

the validity of the will dated 5th January, 1973 came to be upheld by the       A
High Court vide judgment dated 28th July, 2004 and the Special Leave
Petition(Civil) no. 24724/2004 preferred at the instance of the appellant
came to be dismissed as not pressed. According to the will dated
5th January, 1973, the original plaintiffs became entitled to claim the
property of Bhana(deceased) including the land in dispute to the exclusion
                                                                                B
of the present appellant. It was stated in the will dated 5th January, 1973
that Smt. Banti was residing separately for almost 20 years and questioned
her character having illegitimate relations with Maal Singh, son of Nihal
Singh, r/o Bada Pind and despite that, the testator has taken care of her
maintenance. The will dated 5th January, 1973 came to be executed in
supersession of the earlier will dated 11th April, 1956 and for the aforesaid   C
reason, it was stated by the testator that the entire property after his
death be devolved to his daughter Smt. Amriti, Udi alias Iqbal Kaur and
son Darshan Singh in three equal shares.
       4. The trial Court in the instant proceedings held that the suit land
had been allotted in lieu of the original land during the consolidation         D
proceedings. Both the wills set up by the plaintiffs dated 5th January,
1973 and the defendants dated 21st February, 1973 were held to be
executed by Bhana. Learned trial Court further recorded a finding that
Banti had become absolute owner of the suit property after the
commencement of the Hindu Succession Act, 1956 (hereinafter being
referred to as “Act 1956) and, therefore, the plaintiffs could not take         E
any benefit of the earlier decree and accordingly dismissed the suit filed
by the plaintiffs.
       5. On reappraisal of the evidence on record, the appellate Court
reversed the findings of the trial Court with regard to Banti having become
absolute owner of the suit property on the basis of an oral gift executed       F
by Bhana in the year 1950 and the gift came to be set aside and held that
Smt. Banti could not be held to be the absolute owner of the suit property
even after the commencement of the Act, 1956 inasmuch as her title to
the suit property was to operate only during the life time of Bhana who
died on 27th March, 1973. The judgment of the Court of appeal came to           G
be challenged at the instance of the appellant(defendant) and second
appeal before the High Court also came to be dismissed under the
impugned judgment dated 28th July, 2004 which is the subject matter of
challenge in the instant appeal.

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448            SUPREME COURT REPORTS                           [2019] 6 S.C.R.


A            6. Mr. J.M. Khanna, learned counsel for the appellant submits
      that once this fact is admitted by the parties that Smt. Banti was the
      widow of Bhana whose property is in dispute and as such formed
      coparcenary and was entitled to 1/3rd share after the enforcement of
      the Act, 1956 and the learned appellate Court has erred in relying upon
      a will dated 5th January, 1973 without taking note of a subsequent will
B
      executed by the testator dated 21st February, 1973 and the finding which
      has been recorded by the first appellate Court in reference to a later will
      dated 21st February, 1973 is perverse and no adverse inference could be
      drawn and it needs to be reviewed by this Court.
            7. Learned counsel further submits that the progeny of Bhana
C     was consisting of one son and three daughters from the first wife since
      deceased and another daughter alongwith widow from the second
      marriage. If plainly the succession stood opened after the enforcement
      of Act, 1956 then even one son and three daughters from first wife
      would get 2/3rd of the property and widow and one daughter i.e. from
D     second marriage would get 1/3rd property. So far as the finding in
      reference to the will dated 5th January, 1973 is concerned, it was never
      proved or produced before the trial Court and could not be agitated at a
      belated stage.
             8. Learned counsel submits that the first appellate Court as well
E     as the High Court in second appeal has misconstrued the law applicable
      to the coparcenary property and right of the female to succeed would be
      defeated by execution of a Sham sale deed and the same had to be
      questioned during the life time of the deceased Bhana and the limitation
      is only three years. Since the right to succeed to deceased Bhana arose
      only after his demise in the year 1973 and the suit for possession could
F     be filed within 12 years of the same especially when the appellant was
      in possession of a part of the land left by the deceased.
             9. Learned counsel submits that the validity of the will dated
      5th January, 1973 executed by Bhana could not be effecting the right of
      the successor after the enforcement of the Hindu Succession Act, as
G     Bhana had gifted the property to the appellant and the will could not
      operate qua that property even if it is assumed to be valid.          The
      property gifted or otherwise given to the separated wife i.e. Banti before
      the enforcement of the Act, 1956 for maintenance of the separated wife
      now widow would hold the absolute right over the property after the
H     Act, 1956 has come into force.
    AJIT KAUR @ SURJIT KAUR v. DARSHAN SINGH (D)                               449
                THR. LRS. [RASTOGI, J.]

       10. Learned counsel further submits that no will could be executed      A
by Bhana regarding the aforesaid ancestral property to his progeny since
the subject property was in possession of Banti, in view of maintenance
and irrespective of the nature of document/statement made by Bhana,
the property would become absolute property of Banti on enforcement
of Act, 1956 on 17th June, 1956. The reversionary rights of the
                                                                               B
respondents’/plaintiffs’ declaration suit do not become effective when
the succession opened after the enforcement of the Hindu Succession
Act and the decree is only to be effective if the reversionary rights
existed when the succession opened on the death of Bhana the Karta
and co-parcener. The property does not revert to the co-parcenary or
Hindu joint family or to Bhana as Karta and after the enforcement of           C
Act, 1956, the succession is to be governed by the provisions of Hindu
Succession Act and if the reversionary who have got the decree and he
is not the successor in accordance with the Hindu Succession Act or
Hindu Law, he cannot get the benefit under the reversionary declaratory
decree. Whatever the customs earlier existing, if any, stands abrogated
                                                                               D
in view of the mandate of Section 4 and Section 30 of the Act, 1956
which is applicable to all and no customary law overrides the Hindu
Succession Law.
       11. Per contra, Ms. S. Janani, learned counsel for the respondents,
while supporting the findings recorded by the first appellate Court and
confirmed by the High Court in appeal submits that the subject land in         E
dispute was mutated in the name of Smt. Banti on the basis of the oral
gift and the suit which was filed by the respondents for mutation would
not bind their reversionary rights on the suit land and that has been held
by all the courts that the alleged oral gift has not been proved and being
the concurrent finding of fact, needs no further indulgence. Learned           F
counsel further submits that if the respondents cannot rely upon the said
decree to seek possession of the land yet the findings in the suit
proceedings would bind the parties. It was never the case of the appellant
that the suit land was given to her mother Banti in lieu of the maintenance.
On the contrary, it was pleaded that such land was given to her in lieu of
service rendered and the subject land which was given to her mother            G
Banti in lieu of maintenance has been specifically mentioned in the will
dated 5th January, 1973 of late Bhana. In the aforesaid will, late
Bhana(testator) also mentioned that Smt. Banti was living in adultery
and separate from him for more than 20 years and merely being in
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450             SUPREME COURT REPORTS                           [2019] 6 S.C.R.


A     possession of the suit land will not make her an absolute owner of the
      property on coming in effect of the Act, 1956 and bare reading of Section
      14(1) makes it clear that in order to avail the benefit of the mandate of
      law, the women must come in possession of the land under one of the
      devise mentioned therein.
B            12. Learned counsel further submits that in the earlier proceedings,
      the appellant had conceded that the will dated 5th January, 1973 was
      validly executed and in RSA No. 933/1984, the validity of the will dated
      5th January, 1973 has been upheld and the present appellant preferred
      appeal by special leave against the said judgment which came to be
      dismissed as withdrawn by this Court vide order dated 7th April, 2006
C     and the finding was recorded that will dated 21st February, 1973 has not
      been legally executed and proved. In the given circumstances, the
      appellant has no legitimate right to claim possession by way of succession
      under the Act, 1956 and no error was committed in restoration of
      reversionary rights of the respondents under the impugned judgment.
D            13. The concurrent finding of fact has been recorded by the High
      Court in the regular second appeal in separate proceedings initiated in
      reference to will dated 5th January, 1973 in RSA No. 933/1984 decided
      on 28th July, 2004 held to be validly executed and based on the recital of
      the will, it was held that the plaintiffs became entitled to succeed to the
E     entire property of Bhana (deceased) including the land in dispute to the
      exclusion of defendant(appellant herein). It may be relevant to note that
      the finding of fact recorded under the impugned judgment in reference
      to a later will dated 21st February, 1973 on which much emphasis was
      laid by the present appellant, it was observed that the propounder of the
      will was legally required not only to prove the due execution of the will
F     but also to dispel all suspicious circumstances which may have existed
      in its due execution of the aforesaid will and it was observed that the
      later will dated 21st February, 1973 claimed by the present appellant
      cannot be taken to be duly proved and being a finding of fact duly supported
      by the material on record, we find no perversity or manifest error in the
G     finding to be reviewed by this Court in the instant appeal.
            14. It is a settled position of law that the mutation of a property in
      the revenue records are fiscal proceedings and does not create or
      extinguish title nor has it any presumptive value on title. It only enables
      the person in whose favour mutation has been ordered, to pay the land
H     revenue. At the same time, the effect of a declaratory decree to restore
    AJIT KAUR @ SURJIT KAUR v. DARSHAN SINGH (D)                               451
                THR. LRS. [RASTOGI, J.]

the property alienated to the estate of the alienor is that until and unless   A
the alienees are able to convince the court that they have no subsisting
interest in the property, the heirs of the alienor would be entitled to the
benefits of the property as per the law of succession. The effect of the
operation of the aforesaid declaratory decree would be to restore the
land in dispute to the aforesaid estate of Bhana(deceased) and the
                                                                               B
succession would be deemed to have opened on 27th March, 1973 when
Bhana died. On his death, the estate left behind him including the land in
dispute would devolve upon his heirs as per their entitlement and after
the registered will dated 5th January, 1973 has been upheld by the High
Court in RSA No. 933/1984 decided on 28th July, 2004 and attained
finality, its consequence was to follow accordingly.                           C
       15. The submission of learned counsel for the appellant that the
appellant being in possession of the subject property in question at the
time when Act, 1956 came into force and by virtue of Section 14(1) of
the Act became an absolute owner of the subject property and the decree
being a nullity is inexecutable and it is a jurisdictional error against the   D
policy of legislature, is without substance for the reason that Section
14(1) of the Act, 1956 clearly envisage that the possession of the widow,
however, must be under some vestige of a claim, right or title or under
any of the devise which has been purported under the law. Indisputedly,
in the instant case, the appellant was not holding any valid possession
over the subject property and as already observed, opening of fiscal           E
proceedings would not confer a right of acquisition by either of the devise
which has been referred to under the explanation to Section 14(1) of the
Act, 1956. Section 14 of the Act, 1956 is as under:-
      “14. Property of a female Hindu to be her absolute property —
      (1) Any property possessed by a female Hindu, whether acquired           F
      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   G
      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.               H
452           SUPREME COURT REPORTS                              [2019] 6 S.C.R.


A          (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.”
B          16. The effect of Section 14, after the Act, 1956 came to be
      examined by a three Judge Bench of this Court in Eramma Vs.
      Veerupana and Others AIR 1996 SC 1879 as under:-
           “6. It was next contended by the appellant that she was admittedly
           in possession of half the properties of her husband Eran Gowda
C          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 Right to Property
           Act, 1937 (Act 18 of 1937) had not come into force. It is admitted
D          by Mr. Sinha that the Act was extended to Hyderabad State with
           effect from February 7, 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:
E          “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
F          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
G          stridhana immediately before the commencement of this Act.”
           7. 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
H
AJIT KAUR @ SURJIT KAUR v. DARSHAN SINGH (D)                              453
            THR. LRS. [RASTOGI, J.]

 commencement of the Act. It may be noticed that the Explanation          A
 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
                                                                          B
 given in the last portion of sub-section (1) of Section 14 clearly
 suggest that the legislature intended that the limited ownership of
 a Hindu female should be changed into full ownership. In other
 words, Section 14(1) of the Act contemplates that a Hindu female
 who, in the absence of this provision, would have been limited
 owner of the property, will now become full owner of the same            C
 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
                                                                          D
 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             E
 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
                                                                          F
 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 female Hindu and it does not confer any title on a mere
 trespasser. In other words, the provision of Section 14(1) of the
 Act cannot be attracted in the case of a Hindu female who is in          G
 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 to property.
                                               (emphasis supplied)
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454            SUPREME COURT REPORTS                           [2019] 6 S.C.R.


A            17. It was further considered by a three-Judge Bench of this Court
      in V. Tulasamma and Others Vs. Sesha Reddy(Dead) by LRs 1977(3)
      SCC 99 and interpretation of Section 14(1) and (2) of the Act, 1956 has
      been summarized as under:-
            62. We would now like to summarise the legal conclusions which
B           we have reached after an exhaustive considerations of the
            authorities mentioned above on the question of law involved in
            this appeal as to the interpretation of Sections 14(1) and (2) of the
            Act of 1956. These conclusions may be stated thus:
            “(1) The Hindu female’s right to maintenance is not an empty
C           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
D           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
E           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
F           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 Section 14 is in the nature of a proviso and
G           has a field of its own without interfering with the operation of
            Section 14(1) materially. The proviso should not be construed in a
            manner so as to destroy the effect of the main provision or the
            protection granted by Section 14(1) or in a way so as to become
            totally inconsistent with the main provision.

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AJIT KAUR @ SURJIT KAUR v. DARSHAN SINGH (D)                              455
            THR. LRS. [RASTOGI, J.]

 (4) Sub-section (2) of Section 14 applies to instruments, decrees,       A
 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 pre-existing rights. In such cases a
 restricted estate in favour of a female is legally permissible and
                                                                          B
 Section 14(1) will not operate in this sphere. Where, however, an
 instrument merely declares or recognises a pre-existing right, such
 as a claim to maintenance or partition or share to which the
 female is entitled, the sub-section has absolutely no application
 and the female’s limited interest would automatically be enlarged
 into an absolute one by force of Section 14(1) and the restrictions      C
 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 sub-section (2) and would be governed by Section
 14(1) despite any restrictions placed on the powers of the trans-
                                                                          D
 feree.
 (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 Section 14(1) clearly makes
 sub-section (2) inapplicable to these categories which have been
 expressly excepted from the operation of sub-section (2).                E

 (6) The words ‘possessed by’ used by the Legislature in Section
 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           F
 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 Section 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             G
 of a claim, right or title, because the section does not contemplate
 the possession of any rank trespasser without any right or title.
 (7) That the words ‘restricted estate’ used in Section 14(2) are
 wider than limited interest as indicated in Section 14(1) and they
                                                                          H
456                SUPREME COURT REPORTS                        [2019] 6 S.C.R.


A             include not only limited interest, but also any other kind of
              limitation that may be placed on the transferee.”
                                                            (emphasis supplied)
            18. In Eramma Vs. Veerupana and Others (supra), the widow
      was in possession of the half of the property of her late husband and
B     claimed her absolute ownership by virtue of Section 14 of the Act, 1956
      which was negated by this Court for the reason that the widow was not
      holding possession over the subject property in question under any of the
      devise indicated in the explanation to Section 14(1) of the Act, 1956.
             19. Wherein V. Tulasamma and Others Vs. Sesha Reddy(Dead)
C     by LRs, it was an admitted case before the Court that the suit property
      came in possession of the widow under a compromise in execution of
      decree of the Court, restricting her right of alienation in recognition of
      right to maintenance, having pre-existing right over the subject property
      in question on the date the Act, 1956 came into force(i.e. 17th June,
D     1956). In that reference, the claim was considered by this Court and
      held that the pre-existing right of the widow on the date of the
      commencement of the Act, 1956 will get her the absolute rights over the
      subject property.
            20. In the instant case, the appellant although was holding
E     possession but not under any of the devise referred to under explanation
      to Section 14(1) of the Act, 1956 and mere possession would not confer
      pre-existing right of possession over the subject property to claim full
      ownership rights after the Act, 1956 came into force by operation of law
      and this what was considered and negated by the High Court in the
      impugned judgment.
F
           21. Consequently, the appeal fails and is accordingly dismissed.
      No costs.
              22. Pending application(s), if any, stand disposed of.

G     Nidhi Jain                                                  Appeal dismissed.




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