Holding

The property acquired by the widow in recognition of her pre‑existing right to maintenance falls within Section 14(1) of the Hindu Succession Act, 1956, and thus blossoms into absolute ownership, rendering Section 14(2) inapplicable.

Summary

The case concerned property bequeathed by Somasundram Pillai in 1950 to his wife Sellathachi and his cousin's widow Janakathachi as maintenance. After the testator's death the widows possessed the land, but a power of attorney later alienated it, prompting a suit to declare the alienations illegal. The question before the Supreme Court was whether the widows' interest, granted under a will in lieu of a pre‑existing right to maintenance, became an absolute ownership under Section 14(1) of the Hindu Succession Act, 1956, or remained a restricted estate under Section 14(2). Relying on earlier judgments, the Court held that the property was acquired in recognition of a pre‑existing maintenance right, so Section 14(1) applied and the limited estate blossomed into full ownership, rendering Section 14(2) inapplicable. Consequently, the Division Bench’s finding of a restricted estate was set aside, the single Judge’s decree upheld, and the suit dismissed. The appeal was allowed, affirming that the widow became an absolute owner and could alienate the property.

Issues considered

Whether property given to a widow under a will in lieu of maintenance, which constituted a limited estate before the Hindu Succession Act, 1956, became an absolute estate under Section 14(1) of the Act.
Whether Section 14(2) of the Hindu Succession Act applies to such a conveyance, thereby restricting the widow’s right to alienate the property.

Legislation cited

Hindu Adoption and Maintenance Act, 1956
Hindu Succession Act, 1956s. 14(1), s. 14(2), s. 30
Protection of Human Rights Act, 1993s. 12, s. 2(b)
Transfer of Property Act, 1882s. 37

Subjects

Hindu Succession ActSection 14widow's estatemaintenance rightabsolute ownershiprestricted estategender discriminationhuman rightsCEDAWproperty law

Judgment

r
A C. MASILAMANI MUDALIAR AND ORS.
v.
THE IDOL OF SRI SWAMINATHASWAMI
SWAMINATHASWAMI THIRUKOIL AND ORS.

JANUARY 30, 1996
B
[K. RAMASWAMY, S. SAGHIR AHMAD
AND G.B. PATTANAIK, JJ.]

Hindu Succession Act, 1956 :
c Sections 14(1) & (2)-Party obtained under a will limited estate known
as widow's estate prior to the Act coming into force----Property given under the
will in lieu of pre-existing right to maintenance under the Sasuic law-Hence
the right blossomed into an absolute ownership under S. 14(1).

D Tulasamma v. V. Sesha Reddi, [1977] 3 SCR 261; 17wta Sesharatham-
ma v. 17wta Manikyamma, [1991] 3 SCR 717= [1991] 4 SCC 312; Mangat i-
Mal v. Punni Devi, [1995] 6 SCC 88; Gumpha v. Jaibai, [1994] 2 SCC 511;
Seth Bad1i Prasad v. Srimati Kanse Devi, [1969] 2 SCC 586; Mangat Singh
& Ors. v. Sluimati Rattno & Anr., [1967] 3 SCR 454; S.R . Bommai v. Union
of India, [1995) 1 SCC and Mrs. Va/samma Paul v. Cochin University and
E o,,., JT (1996) 1 SC 57, relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4125 of
1996. ,.
From the Judgment and Order dated 2.7.92 of the Madras High
F Court in L.P.A No. 161 of 1988.

KR. Chowdary for the Appellants.

A V. Rangam for the Resp 0ndents.

G The following Order of the Court was delivered :

Leave granted.

We have heard the counsel on both sides.

H The appeal by special leave arises from the Judgment dated July 2,
1068
C.M. MUDALIAR v. IDOL OF SRI S.S. THIR UKOIL 1069

1992 of the Division Bench of the Madras High Court rendered in LPA A
·"' No. 161 of 1988.

The appellants are the alienees from Sellathachi, widow of
Somasundram Pillai who had executed a will, Ex-A43 on 16.7.1950 be-
queathing the suit properties to his wife and his cousin's widow B
Janakathache mentioning thereunder as follows :

"Whereas I have no male or female issues and may wife (1)
Sellathachi and (2) Janaka Thathachi, wife of my senior paternal
uncles' son Thabasuya Pillai are living with me and in my family
and other than the other 2 persons, there is none else in my family. C
Amongst the aforesaid persons, the aforesaid Janaka Thachi have
got only maintenance relationship and none else in my family have
any right in the share or have maintenance relationship. I am duty
bound to provide maintenance for the aforesaid two persons and
I have no other duty to be performed. Therefore, after my lifetime, D
the under mentioned A Schedule property valued at Rs. 2000 shall
be got by the aforesaid two persons and shall be enjoyed in equal
shares without any right to alienate the same and perform the
charities as per their wish and after the lifetime of both the
•
aforesaid persons, Govindarasan Pillai, s/o Peria Pillai, of the
aforesaid Eduvankudi Village shall be the Trustee of a Schedule E
property and with the income derived from the undermentioned
land shall perform the Pooja to the idol at Swamimalai Sri
Swaminatha Swami Deveasthanam, Kumbakonam Taluk, every
month on the Krithigai Satar Day and also do the charity of power
• poor feeding on the aforesaid day, and also shall put up the lamps F
every day at the Subramania Swamiar Temple of the aforesaid
Edavankudi village and perform the Pooja and the Charity of poor
feeding every month on the Krithigai Star Day. Further in respect
of the undermentioned B Schedule Property valued at Rs. 1000,
after may lifetime, the aforesaid Govinda Rajan Pillai himself shall G
be the trustee and from the revenue derived from the aforesaid
property shall perform the Pooja and the charity of poor feeding
as detailed above to the aforesaid Swami Natha Swami and the
aforesaid Subramania Swamy. Amongst the aforesaid Sellathachi
and J anaka Thachi, if one of the persons were to die survived by
the other, the surviving member shall have the right to enjoy the H·
r
1070 SUPREME COURT REPORTS [1996] 1 S.C.R.

A A schedule property in its entirely. This Deed of Will shall come
into force only after my lifetime, and I shall have the right and
authority to change or cancel this Deed of will during my lifetime."

Somasundaram Pillai died in September 1950. The legatees Sel-
lathichi and another had come into possession of the properties. J anaka
B Thathachi died in the year 1960. In 1970 Shellathachi and appointed a
power of attorney-holder who had alienated the suit properties and the
appellants had purchased them under registered sale deed. The suit was
filed for declaration that the legatees having succeeded to limited estate
under the will, the alienations made by Sellathachi were illegal. The trial
C Court decreed the suit. The learned single Judge allowed the appeal and
dismissed the suit and in LPA No. 161/88 dated July 2, 1992, the Division
Bench of the High Court has set aside the decree of the single Judge
holding that the legatees had succeeded to restricted estate under sub-sec-
tion (2) of Section 14 of the Hindu Succession Act, 1956 (for short, the
D "Act") and that, therefore, their rights have not blossomed into absolute
estate. Thus, this appeal by special leave.

The question, therefore, is : whether Sellathachi, the widow of
Somasundaram Pillai, had become the absolute owner, by operation of
Section 14(1) of the Act? Recital of the will clearly indicates that the
E testator was conscious of the pre-existing legal position, namely, he was
under an obligation to maintain his wife and also moral obligation to
maintain his cousin's wife. He stated that "I am duty bound to provide
maintenance for the aforesaid two persons and I have no other duty to be
performed". He had stated that after his lifetime the two legatees would be
F entitled to take possession of the properties and enjoy the same in equal
share without any right to alienate and to perform the charities as per his
last wish. He also mentioned that if one of the legatees pre-deceases, the
other surviving member would have the right to enjoy the properties
mentioned in the will. The right to maintenance and a charge on her
husband's properties are pre- existing legal rights available to her.
G
Section 14 of the Act reads thus:

"14(1) any property possessed by a female Hindu, whether ac-
quired before or after the commencement of this Act, shall be held
H by her as full owner thereof not as a limited owner.
C.M. MUDALIAR v. IDOL OF SRI S.S. THIRUKOIL 1071

Explanation. - In this sub-section, "property" includes both movable A
and immovable property acquired by a female Hindu by in-
heritance or device, or at a partition, or in lieu of maintenance of
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 B
manner whatever, and also any such property held by her as
stridharas 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
I
under a decree or order of a civil court or under an award where C
the terms of the gift, will or other instrument or the decree, order
or a\vard prescribe a restricted estate in such property."

In Tulasamma v. V. Seslza Reddi, [1977] 3 SCR 261, a Bench of three
Judges of this Court had considered the right acquired under the Will and
held at page 268 thus : D

"Whatever be the kind of property, movable or immovable, and
whichever be the mode of acquisition, it would be covered by
sub-section (1) of Section 14, the object of the Legislature being
to wipe out the disabilities from which a Hindu female suffered in E
regard to ownership of property under the old Sastric law, to
abridge the stringent provisions against propriety rights which were
often regarded as evidence of her perpetual tutelage and to recog-
' nize her status as an independent and absolute owner of property."

At page 269, it was further held that : . F

"Sub-section (2) must, therefore, be read in the context of sub-sec-
tion ( 1) so as to leave as large a scope for operation as possible
to sub-section (1) and so read, it must be confined to cases where
property is acquired by a female Hindu for the first time as a grant G
without any pre-existing right, under a gift, will, instrument, decree,
order or award, the terms of which prescribe a restricted estate in
the property".

Thota Sesharathamma v. IJwta Manikyamma, [1991] 3 SCR 717
(1991) 4 SCC 312 is also a case under which the legatee had obtained under H
y
1072 SUPREME COURT REPORTS [1996] 1 S.C.R.

A a will a limited estate known as widow's estate, prior to the Act came into
force. When the suit was laid for declaration that she became only a limited
owner, this Court had considered the controversy and held thus :

"Devolution of the property under the will would take effect after
the demise of the testator and the legatee would be bound by the
B terms of gift over etc. The stranger legatee cannot take shelter
under subsequent change of law to enlarge the operation of restric-
tive covenant to claim absolute ownership in the property be-
queathed to her. But socio-economic amelioration under the Act
engulfs an instrument under the sweep of Section 14(1} thereof; it
c extinguishes the pre-existing limited estate or restrictive condition
and confers absolute and full ownership of the property possessed
by a Hindu female as on the date when the Act had come into
force, namely, June 17, 1956. The courts are not giving retrospec-
tive operation to Section 14(1} or to the instrument. The courts
only would be applying the law to the facts found as on the date
D when the question arose to find whether legatee has pre-existing
vestige of title under law; and the nature of possession of the
property held by her and whether the legatee would get the benefit
of Section 149(1) of the Act."

E In Mangat Mal v. Punni Devi, [1995] 6 SCC 88, another Bench of two
Judges considered the right acquired by the female under an award and
held that:

11
Maintenance, as we see it, necessarily must encompass a provision
for residence. Maintenance is given so that the lady can live in the
F manner, more or less, to which she was accustomed. The concept
of maintenance must, therefore, include provision for food and
clothing and the like and take into account the basic need of a
roof over the head. Provision for residence may be made either by
giving a lump sum in money, or property in lieu thereof. It may
also be made by providing, for the course of the lady's life, a
G
residence and money for other necessary expenditure. Where
provision in made in this manner, by giving a life interest in
property for the purposes of residence, that provision is made in
lieu of a pre-existing right to maintenance and the Hindu lady
acquires far more than the vestige of title which is deemed suffi-
H cient to attract Section 14(1).
C.M. MUDALIAR v. IDOL OF SRI S.S. THIRUKOIL 1073

Under the award provisions was made, in lieu of Sukh Devi's pre- A
existing right to maintenance, of money and interest of life in the
Bidasar property. Sukh Devi, therefore, acquired limited owner-
ship rights in the Bidasar property in recognition of her pre-exist-
ing right to maintenance. Upon the coming into force of the Act,
the limited rights acquired by Sukh Devi in 1934 blossomed into
B
full ownership of the Bidasar property, and she became entitled
to sell its 'nohra'. In our view, therefore, the High Court was in
error in the view that it took.
-"
, This Court thus held that the view taken by the High Court was
wrong in holding that she acquired a limited estate and sub-section (2) of c
Section 14 became applicable to the right acquired by her under the award.
Accordingly, this Court had held that her right acquired under the award
was in recognition of her pre-existing right to maintenance and that,
therefore, it had blossomed into an absolute right under Section 14(1) of
the Act. D
_,
,_. It is true, as rightly contended by Shri Rangam, the learned counsel
for the respondent, that a Bench of two Judges of this Court in Gumpha
1..... v. Jaibai, [1994] 2 sec 511 considered the effect of the will and had held
that property acquired under Will does not fall under Section 14(1). In that E
case, the will was executed in the year 1941. and the testator died in 1958
after the Act had come into force. Therefore, this Court had held that she
acquired right to maintenance under the will as a restricted estate and by
' operation of Section 30 of the Act read with Section 14(2), she acquired a
limited estate. The learned Judges appear to have construed the operation
' of sub-section (2) of Section 14 in the light of the language mentioned in
F
the Will. It would be seen that the Will was executed in the year 1941. As
per pre-existing law in 1941, she had only a right to maintenance. The
learned Judges proceeded on the premises that a Hindu male's power to
dispose of his property being absolute, it includes right to create limited
... or restricted estate in favour of a female. By operation of Section 30 of the G
Act the restricted estate under the Will comes under sub-section {2) of
;l Section 14 as it is not a device under which she acquired the property under
sub-section {1) thereof. However, the learned Judges noted that if the
maintenance was given in recognition of a pre-existing right, such an
acquisition of property was taken out of sub-section (2) to promote the H
r
1074 SUPREME COURT REPORTS [1996] 1 S.C.R.

A object of Section 14. The manner of acquisition under sub-section (1)
includes inheritance etc. specifically mentioned in sub-section (1) before ~,
the commencement of the Act. Therefore, it was held that it does not
include acquisition by ,will. The constructi.on of sub-sections (2) and (1)
being consistent" with Section 30 of the Act led to that conclusion, in the
B view of the learned Judges, that the words "in lieu of' or "arrears of' for
maintenance appeared to be significant.

In Seth Badri Prasad v. S1imati Kanso Devi, [1969] 2 SCC 586 the
question of the construction of sub-section (2) and sub-section (1) of
C Section 14 had come up before a three-Judge Bench of this Court. The
facts therein were that the respondent got certain prope•ties under an
award as a widow's estate. Suit was filed by the appellant to restrain
respondent from committing acts of waste or alienating the properties on
the ground that she was only limited owner of the property. The respondent
contended that under Section 14(1) she became full owner of the p"roperty
D which Vj:lS found favour with the courts below. In interpreting Section 14(1)
and (2), this Court held that the words "acquired" and "possessed" have
been used in their widest connotation. Possession must be constructive or
actual or in any form recognised by law. In the language of Explanation
the word "acquired" must also be given the widest possible meaning. Sub-
E section (2) of Section 14 would come into operation only if acquisition in
any of the matters indicated therein does not come under Section 14(1)
and was made for the first time, without there being any pre-existing right
in the Hindu female who is in possession of the property. It was held that
since she was in possession of the property as a widow's estate, her _limited
F right was enlarged into an absolute right under Section 14(1). '

In Mangal Singh & Ors. v. Shrimati RattJw & Anr., (1967] 3 SCR 454,
another three-Judge Bench was to consider the question whether a Hindu
female who was dispossessed froin the property in her possession before
G the Act had come into force became an absolute owner under Section
14( 1). This Court held that the words "possessed by" instead of the expres-
sion "in possession of' in Section 14(1) was intended to enlarge the meaning
of the expression "possession by to cover cases of "possession in law". Even
11

though the Hindu female was not in actual, physical or constructive pos-
H session of the property Section 14 (1) stands attracted.
1

C.M. MUDALIAR v. IDOL OF SRI S.S. THIR UKO!L 1075

It is seen that if after the Constitution came into force, the right to A
equality and dignity of person enshrined in the Preamble of the Constitu-
tion, Fundamental Rights and Directive Principles which are a trinity
intended to remove discrimination or disability on grounds only of social
status or gender, removed the pre-existing impediments that stood in the
way of female or weaker segments of the society. In S.R. Bommai v. Union
B
of India, [1995) 1 SCC this Court held that the preamble is part of the
basic structure of the Constitution. Handicaps should be removed only
under rule of law to enliven the trinity of justice, equality and liberty with
_,
degnity of person. The basic structure permeates equality of status and
opportunity. The personal laws conferring inferior status on women is
anathema to equality. Personal laws are derived not from the Constitution C
but from the religious scriptures. The laws thus derived must be consistent
with the Constitution least they became void under Article 13 if they
violated fundamental rights. Right to equality is a fundamental right.
Parliament, therefore, has enacted Section 14 to remove pre-existing dis-
abilities fastened on the Hindu female limiting her right to property without D
full ownership thereof. The discrimination is sought to be remedied by
Section 14(1) enlarging the scope of acquisition of the property by a Hindu
female appending an explanation with it.

The General Assembly of the United Nations adopted a declaration
on December 4, 1986 on "The Development of the Right to Development" E
to which India played a crusading role for its adoption and ratified the
same. Its preamble cognises that all human rights and fundamental
freedoms are indivisible and interdependent. All Nation States are con-
cerned at the existence of serious obstacles to development and complete
(
fulfilment of human beings, denial of civil, political, economic, social and F
cultural rights. In order to promote development, equal attention should
be given to the implementation, promotion and protection of civil, political,
economic, social and political rights.

Article 1(1) assures right to development an inalienable human right, G
by virtue of which every person and all people are entitled to participate
in, contribute to, and enjoy economic, social, cultural and political develop-
ment in which all human rights and fundamental freedoms can be fully
realised. Article 6(1) obligates the state to observance of all human rights
and fundamental freedoms for all without any discrimination as to race, sex,
language or religion. Sub-Article (2) enjoins that.. ............... equal attention H
1076 SUPREME COURT REPORTS [1996] 1 S.C.R .•

A and urgent consideration should be given to implement, promotion and
;( .,
protection of civil, political, economic, social and political rights. Sub-ar-
ticle (3) thereof enjoins that "state should take steps to eliminate obstacle
to development, resulting from failure to observe civil and political rights
as well as economic, social and economic rights. Article 8 castes duty on
the State to undertake ............................ necessary measures for the realisa-
B
tion of right to development and ensure, inter alia, equality of opportunity
for all in their access to basic resources ..................... and distribution of
income". Effective measures should be undertaken to ensure that women
have an active role in the development process. Appropriate economic and
social reforms should be carried out with a view to eradicate all social
C injustice.

Human Rights are derived from the dignity and worth inherent in
the human person. Human Rights and fundamental freedom have been
reiterated by the Universal Declaration of Human Rights. Democracy,
D development and respect for human rights and fundamental freedoms are
inter-dependent and have mutual reinforcement. The Human rights for
woman, including girl child are, therefore, inalienable, integral and in-
divisible part of universal human rights. The full development of per-
sonality and fundamental freedoms and equal participation by women in
political, social, economic and cultural life are concomitants for national
E development, social and family stability _and growth, culturally, socially and
economically. All forms of discrimination on grounds of gender is violative
of fundamental freedoms and human rights.
(

Vienna declaration on the elimination of all forms of discrimination
F against women for short "CEDAW" was ratified by the U.N.O. on Decem- '
ber 18, 1979. The Government of India who was an active participant to
CEDAW ratified it on June 19, 1993 and acceded to CEDAW on August
8, 1993 with reservation on Articles 5(e), 16(1), 16(2) and 29 of CEDAW.
The Preamble of CEDAW reiterates that discrimination against women,
violates the principles of equality of rights and respect for human dignity;
G is in obstacle to the participation on equal terms with men in the political,
social, economic and cultural life of their country; hampers the growth of
the personality from society and family and makes more difficult for the
full developrnent of potentialities of women in the service of their countries
and of humanity. Poverty of women is a handicap. Establishment of new
H international economic order based on equality and justice will contribute
C.M. MUDALIAR v. IDOL OF SRI S.S. THIRUKOIL 1077

significantly towards the promotion of equality between men and women A
11
etc. Article 1 defines discrimination against women to mean any distinc-
tion, exclusion or restriction made on the basis of sex which has the effect
or purpose on impairing or nullifying the recognized enjoyment or exercise
by women, irrespective of their marital status, on a basis of equality of men
and women, all human rights and fundamental freedoms in the political,
B
economic, social, cultural, civil or any other field." Article 2(b) enjoins the
State parties while condemning discrimination against women in all its
forms, to pursue, by appropriate means, without delay, elimination of
discrimination against women by adopting "appropriate legislative and
other measures including sanctions where appropriate, prohibiting all dis-
criminations against women." To take all appropriate measures including c
legislation, to modify or abolish existing laws, regulations, customs and
practices which constitute discrimination against women. Clause C enjoins
to ensure legal protection of the rights of women on equal basis with men
through constituted national tribunals and other public institutions against
any act of discrimination to provide effective protection to women. Article D
3 enjoins state parties that it shall take, in all fields, in particular, in the
political, social, economic and cultural fields, all appropriate measures
including legislation to ensure full development and advancement of
women for the purpose of guaranteeing them the exercise and enjoyment
of human rights and fundamental freedoms on the basis of equality with
men. Article 13 states that "the state parties shall .take all appropriate E
measures to eliminate discrimination against women in other areas of
economic and spcial life in order to ensure, on a basis of equality of men
and women", in particular ................. Article 14 laid emphasis to eliminate
' discrimination on the problems faced by rural women so as to enable them
to play "in the economic survival of their families including their work in F
the none-monetized sectors of the economy and shall take..... all ap-
propriate measures ....... ". Participation in and benefit from rural develop-
ment and, in particular, shall ensure to such women the right to participate
in the development programme to organize self groups and cooperatives
to obtain equal access to economic opportunities through employment or
self-employment etc. Article 15(2) enjoins to accord to women in equality G
with men before the law, in particular, to administer property....................

The Parliament made the Protection of Human Rights Act, 1993.
Section 2(b) defines human rights means "the rights relating to life, liberty,
equality and dignity of the individual guaranteed by the Constitution, H
r
)

1078 SUPREME COURT REPORTS [1996] 1 S.C.R.

A embodied in the international conventions and enforceable by courts in
India". Thereby the principles embodied in CEDAW and the concomitant
right to development became integral parts of the Indian Constitution and
the Human Rights Act and became enforceable. Section 12 of Protection
of Human Rights Act charges the commission with duty for proper im-
plementation as well as prevention of violation of the human rights and
B fu!ldamental freedoms.

Article 5(a) of CED AW to which the Government of India expressed
reservation does not stand in its way and in fact Article 2(f) denudes its
effect and enjoin to implement Article 2(f) read with its obligation under-
C taken under Articles 3, 14 and 15 of the Convention vis-a-vis Articles 1, 3,
6 and 8 of the Convention of Right to Development. The directive prin-
ciples and fundamental rights, though provided the matrix for development
of human personality and elimination of discrimination, these conventions
add urgency and teeth for immediate implementation. It is, therefore,
D imperative of the State to eliminate obstacles, prohibit all gender based
discriminations as mandated by Articles 14 and 15 of the Constitution of
India. By operation of Article 2(f) and other related articles of CEDAW,
the state should take all appropriate measures including legislation to
modify or abolish gender based discrimination in the existing laws, regula-
tions, customs and practices which constitute discrimination against
E women.

Article 15(3) of the Constitution of India positively protects such
Acts or actions. Article 21 of the Constitution of India reinforces "right to
life". Equality, dignity of person and right to development are inherent
F rights in every human being. Life in its expanded horizon includes all that
give meaning to a person's life including culture, heritage and tradition with
dignity of person. The fulfilment of that heritage in full measure would
encompass the right to life. For its meaningfulness and purpose every
woman is entitled to elimination of.obstacles and discrimination based on
gender for human development. Women are entitled to enjoy economic,
G social, cultural and political rights without discrimination and on footing of
equality. Equally in order to effectuate fundamental duty to develop scien-
tific temper, humanism and the spirit of enquiry and to strive towards
excellence in all spheres of individual and collective activities as enjoined
in Article 51A(h) and (J) of the Constitution of India, facilities and
H opportunities not only are to be provided for, but also all forms of gender
C.M. MUDALIAR v. IDOL OF SRI S.S. TIURUKOIL 1079

based discrimination should be eliminated. It is a mandate to the State to A
do these acts. Property is one of the important endowments or natural
assets to accord opportunity, source to develop personality, to be inde-
pendent, right to equal status and dignity of person. Therefore, the State
should create conditions and facilities conducive for women to realise the
right to economic development including social and cultural rights.
B
Bharat Ratna Dr. B.R. Ambedkar stated, on the floor of the Con-
stituent Assembly that in future both the legislature and the executive
should not pay mere lip service to the directive principles but they should
[ be made the bastion of all executive and legislative action. Legislative and
executive actions must be conformable to and effectuation of the fun- c
damental rights guaranteed in Part III and the directive principles
enshrined in part IV and the Preamble of the Constitution who constitutes
conscience of the Constitution. Covenants of the United Nation add im-
petus and urgency to eliminate gender based obstacles and discrimination.
Legislative action should be devised suitably to constallate economic em- D
~ powerment of women in socio-economic restructure for establishing
egalitarian social order. Law is an instrument of social change as well as
the defender for social change. Article 2{e) of CEDAW enjoins that this
Court to breath life into the dry bones of the Constitution, international
convictions and the protection of Human, rights Act and the Act to prevent
gender based discrimination and to effectuate right to life including em- E
powerment of economic, social and cultural rights to women.

' As per the U.N. Report 1980 "woman constitute half the world
population, perform nearly two thirds of work hours, receive one tenth of
the world's income and own less than one hundredth per cent of world's F
property". Half of the India population too are women. Women have always
been discriminated and have suffered and are suffering discrimination in
silence. Self sacrifice and self denial are their nobility and fortitude and yet
they have been subjected to all inequities, indignities inequality and dis·
crimination. Articles 13, 14, 15 and 16 of the Constitution of India and
other related articles prohibit discrimination on the ground of sex. Social G
and economic democracy is the cornerstone for success of political
democracy.

In Mrs. Va/samma Paul v. Cochin Univm·ity & 01'., JT (1996) 1 SC
57, this Court has held thus : H
1080 SUPREME COURT REPORTS [1996] 1 S.C.R.

A "Human rights are derived from the dignity and worth inherent in
the human person. Human rights and fundamental freedoms have
been reiterated in the Universal Declaration of Human Rights.
Democracy, development and respect for human rights and fun-
damental freedoms are inter-dependent and have mutual reinfor-
cement. The human rights for women, including girl child are,
B therefore, inalienable, integral and indivisible part of universal
human rights. The full development of personality and fundamen-
tal freedoms and equal participation by women in political, social,
economic and cultural life are concomitants for national develop-
ment, social and family stability and growth-cultural, social and
c economical. All forms of discrimination on grounds of gender is
violative of fundamental freedoms and human rights. Convention
for Elimination of all forms of Discrimination Against Women (for
short, "CEDAW" was ratified by the U.N.O. on December 18, 1979
and the Government of India had ratified as an active participant
on June 19, 1993 acceded to CEDAW and reiterated that dis-
D
crimination against women violates the principles of equality of
rights and respect for human dignity and it is an obstacle to the
participation on equal terms with men in the political, social,
economic and cultural life of their country; it hampers the growth
of the personality from society and family, making more difficult
E for the full development of potentialities of women in the service
of the respective countries and of humanity.

(
Establishment of new international economic order based on
equality and justice will contribute significantly towards the promo-
F tion of equality between men and women etc. Article 1 defines
11
discrimination against woman11 ~o mean "any distinction, exclusion
or restriction made on the basis of sex which has the effect or
purpose of impairing or nullifying the recognized enjoyment or
exercise by women, irrespective of their marital status, on the basis
of equality of men and women, all human rights and fundamental
G freedo_ms in the political, economic, social, cultural, civil or any
other field." Article 2(b) enjoins upon the State parties, while
condemning discrimination against women in all its forms, to
pursue, by appropriate means, without delay, elimination of dis-
crimination against women by adopting "appropriate legislative and
H other measures including sanctions where appropriate, prohibiting
C.M. MUDALIAR v. IDOL OF SRI S.S. THIRUKOIL 1081

all discriminations against women; to take all appropriate measures A
including legislation, to modify or abolish existiitg laws, regulations,
customs and practices which constitute discrimination against
women. Clause C enjoins upon the State to ensure legal protection
of the rights of women on equal basis with men, through con-
stituted national tribunals and other public institutions against any
B
act of discrimination to provide effective protection to women.
Article 3 enjoins upon the State parties that it shall take, in all
fields, in particular, in the politica~ social, economic and cultural
fields, all appropriate measures including legislation to ensure full
development and advancement of women for the purpose of
guaranteeing them the exercises and enjoyment of human rights c
and fundamental freedoms on the basis of equality with men.
Article 13 states that "the State parties shall take all appropriate
measures to eliminate discrimination against women in other areas
of economic and social life in order to ensure, on a basis of equality
11
of a men and women •
D
The Parliament has enacted the Protection of Human Rights
Ac~ 1993. Section 2(b) defines "human rights" to mean "the rights
relating to life, liberty, equality and dignity of the individual
guaranteed by the Constitution, embodied in the international
conventions and enforceable by courts in lndia". Thereby, the E
principles embodied in CEDAW and the concomitant right to
development became integral ·part of the constitution of India and
the Human Rights Act and became enforceable. Section 12 of the
Protection of Human Rights Act charges the commission with duty
for proper implementation as well as prevention of violation of the F
human rights and fundamental freedoms.

Though the Government of India kept its reservations on
Articles 5 (e), 16(1), 16(2) and 29 of CEDAW, they bear little
consequence in view of the fundamental rights in Article 15 (1)
and (3) and Article 21 and the directive principles of the Constitu- G
ti on.

It is true that Section 30 of the Act and the relevant provisions of the
Act relating to the execution of the wills need to be given full effect and
the right to disposition of a Hindu male derives full measure thereunder. H
r
1082 SUPREME COURT REPORTS [1996] 1 S.C.R.

A But the right to equality removing handicaps and discrimination against a
Hindu female by reason of operation of existing law should be in conform-
ity with the right to equality enshrined in the Constitutional and the
personal law also needs to be in conformity with the Constitutional goal.
Harmonious interpretation, therefore, is required to be adopted in giving
effect to the relevant provisions consistent with the constitutional animation
B to remove gender-based discrimination in matters ·of marriage, succession
etc. Cognizant to these constitutional goals, Hindu Marriage Act, Hindu
Adoption and Maintenance Act, Hindu Succession Act etc. have been
brought on statute removing the impediments which stood in the way under
the Sastric law. Explanation I to Section 14 (1) gives wide amplitude to the
c acquisition of property in the widest terms. It is merely illustrative and not
exhaustive. The only condition precedent is whether Hindu female has a
pre-existing right under the personal law or any other law to hold the
property or the right to property. Any instrument, document, device etc.
under which Hindu female came to possess the property-movable or
D immovable-in recognition of her pre-existing right, though such instrument,
document or device is worded with a restrictive estate, which received the /-
colour of pre-existing restrictive estate possession by a Hindu female, the
operation of sub-section (1) of Section 14 read with Explanation 1, remove
the fetters and the limited right blossoms into an absolute right.

E As held by this Couri, if the acquisition of the property attracts
sub-section (1) of Section 14, slib-section (2) does not come into play. If
the acquisition is for the first time, without any vestige of pr-existing right
under the instrument, document or device etc. then sub-section (2) of
Section 14 gets attracted. Sub-section (2) being in the nature of an excep-
F tion, it does not engulf and wipe out the operation of sub-section (1).
Sub-section (2) of Section 14 independently operates.in its own sphere. The
right to disposition of property by a Hindu under Section 30 is required to
be understood in this perspective and if any attempt is made to put
restriction upon the property possessed by a Hindu female under an
instrument, document or device, though executed after the Act had come
G into force, it must be interpreated in the light of the facts and circumstan-
ces in each case and to construe whether Hindu female acquired or
possessed the property in recognition of her pre-existing right or she gets
the rights for the first time under the instrument without any vestige of pre-
existing right. If the answer is in the positive, sub-section (1) of Section 14
H gets attracted. Thus construed, both sub-sections (1) and (2) of Section 14
C.M. MUDALIAR v. IDOL OF SRI S.S. 1HIRUKOIL 1083

will be given their full play without rendering either as otios or aids as A
means of avoidance.

In Gumpha's case (supra) 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
B
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.
c
The legatee Sellathachi had right to maintenance under the Hindu
Adoption and Maintenance Act when the property was given to her for
maintenance. It must be in lieu of her pre-existing right to maintenance
and the property given under the will, therefore, must be conrtrued to have
been acquired by the legatee under the will in lieu of her right to main- D
tenance. That right to maintenance to a Hindu female received statutory
recognition under the Hindu Adoption and Maintenance Act, 1956. She is
entitled to realise maintenance from property of her husband and even in
the hands of strangers except the bona fide purchaser for value whether
notice of her right. She is equally entitled under Section 37 of the Transfer
of Property Act to have charge created over the property for realisation of E
her maintenance. On the demise of the testator, she being the class-I heir
but for the bequeath, is entitled to succeed as an absolute owner. In either
of those circumstances, the question emerges whether she acquires a
limited right under Section 14(2) for the first time under the Will. In the
light of the facts and circumstances of the case and the legal setting, we F
are of the considered view that she having had under Sastric law, as
envisaged in the Will, the properties in recognition of her pre-existing right
to maintenance, it is not a right acquired for the first time under the
instrument will, but it is a reflection of the pre-existing right under the
Sastric law, which was blossomed into an absolute ownership after 1956 G
under Section 14(1) of the Act. Under these circumstances, it cannot be
held that Sellathachi acquired the right to maintenance for the first time
under the instrument will. The Division Bench, therefore, does not appear
to have approached the problem in the correct perspective. In view of the
settled legal position right from Tu/asamma's case (supra) the right ac-
quired under the Will is in recognition of the pre-existing right to main- H
1084 SUPREME COURT REPORTS [1996] 1 S.C.R.

A tenance known under the Sastric law and was transformed into an absolute
right under Section 14(1) wiped out the restrictive estate given under the
Sastric law and Sellathachi as absolute owner of the property. The Division
bench of the High Court, therefore, was not correct in holding that Sel-
lathachi has acquired only a limited estate under the Will and Section 14(2)
attracts to the restrictive covenants contained in the will limiting her right
B to maintenance for life time and, thereafter, the right to enjoy the income
from the lands and on her demise, the income should go to the temples as
mentioned in the will is not correct in law.

Shri Rangam then contended that when the testator has thought of
C providing only maintenance, to the two widows, the properties being more
than 10 acres, the maintenance must be only proportionate to the needs of
the widow and to that extent the widow acquires an absolute right but not
the entire property. We find no force in that contention. It is to be seen
that under the pre-existing law, she is entitled to remain in possession of
the whole estate known as widow's estate and after the Act has come into
D force that widow's estate was blossomed into an absolute estate by opera-
tion of Section 14(1). Even in the Will Ex-Al, no such restrictive covenant
was engrafted giving reasonable proportion of income consistent" with her
needs for maintenance. On the other hand, the express covenant is that, he
recognised her right to maintenance and in lieu of the maintenance proper-
E ty was given to her for her maintenance during her lifetime. That is the
pre-existing right as per then existing law. After the Act has come into
force, the limited estaie has blossomed into an absolute estate. Therefore,
the doctrine of proportionality of maintenance is not applicable and cannot
be extended.

F The appeal is accordingly allowed. the judgment of the Division
Bench stands set aside and that of the single Judge stands upheld. Resul-
tantly, the suit stands dismissed. In the circumstances, there shall be no
order as to costs. /

G.N. Appeal allowed.