Allowed

Prahladhan v. Anitha Hari

Kerala HC7 Jun 2024RSA/803/2016

Case brief

AI extract

What is this about?

Second appeals against an appeal court order that set aside a trial court decree declaring an assignment void and restoring the trial decree. The High Court held the wife held only a life interest under a Will reserving remainder for her sons, thus Section 14(2) applied and her interest did not become absolute.

What did the court decide?

Appellate judgment set aside; trial court judgment and decree restored, subject to setting aside a charge of Rs.1,00,000 created in the property.

Prahladhan Vs Anitha Hari — Succession and Inheritance | Kerala HC (2024)

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'CR'

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR FRIDAY, THE 7^TH DAY OF JUNE 2024 / 17TH JYAISHTA, 1946 RSA NO. 856 OF 2016

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AGAINST THE JUDGMENT AND DECREE DATED 30.03.2016 IN AS NO.50 OF 2011 OF III ADDITIONAL DISTRICT COURT, THRISSUR ARISING OUT OF THE JUDGMENT AND DECREE DATED 27.02.2010 IN OS NO.404 OF 2007 OF ADDITIONAL SUB COURT,IRINJALAKUDA

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APPELLANTS/APPELLANT/PLAINTIFF:

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1 PRAHALADHAN,[DIED & LEGAL HEIRS IMPLEADED] AGED 67 YEARS, S/O.LATE KUMARAN, THARAYIL HOUSE, KATTOOR VILLAGE, KATTOOR DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680 702.

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ADDL.2 RAJALAKSHMI,

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W/O LATE PRAHALADHAN, THARAYIL HOUSE, KATTOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680702.

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ADDL.3 VRINDA DEVI T.P., D/O LATE PRAHALADHAN, THARAYIL HOUSE, KATTOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680702.

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ADDL.4 SHALLY T.P.,

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D/O LATE PRAHALADHAN, THARAYIL HOUSE, KATTOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680702.

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(LEGAL HEIRS OF ORIGINAL APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 AS PER ORDER DATED 01.04.2024 IN IA.NO.1/2024 IN RSA. NO.856/2016)

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RSA. Nos.615, 803 & 856 of 2016

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BY ADVS. K.JAGADEESH NIKHEL K GOPINATH V.RENJU

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 PANKAJAKSHI,

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D/O.KULANGARATH MANI, THARAYIL HOUSE, KATTOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, NOW RESIDING AT SAFE WELL WOMENS HOSTEL, VAPPALASSERY, NEDUMBASSERRY, ERNAKULAM DISTRICT-683 572.

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2 DAYANANDAN, S/O.THARAYIL KUMARAN, UDAYANAGAR, AYYANTHOLE P.O., THRISSUR DISTRICT-680 003.

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BY ADV.

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P.M. PAREETH -R1

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28.5.2024, ALONG WITH RSA.615/2016 & 803/2016, THE COURT ON 07.06.2024, DELIVERED THE FOLLOWING:

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RSA. Nos.615, 803 & 856 of 2016

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR

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FRIDAY, THE 7^TH DAY OF JUNE 2024 / 17TH JYAISHTA, 1946 RSA NO. 615 OF 2016

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AGAINST THE JUDGMENT AND DECREE DATED 30.03.2016 IN AS NO.249 OF 2010 OF III ADDITIONAL DISTRICT COURT, THRISSUR ARISING OUT OF THE JUDGMENT AND DECREE DATED 27.02.2010 IN OS NO.354 OF 2006 OF ADDITIONAL SUB COURT,IRINJALAKUDA

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APPELLANTS/1ST RESPONDENT/PLAINTIFF:

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1 PRAHALADAN,[DIED & LEGAL HEIRS IMPLEADED] AGED 62 YEARS

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S/O.LATE KUMARAN, THARAYIL HOUSE, KATTOOR VILLAGE, KATTOOR DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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ADDL.2 RAJALAKSHMI

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W/O. LATE PRAHALADHAN, THARAYIL HOUSE, KATTOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680702.

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ADDL.3 VRINDA DEVI T.P

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D/O.LATE PRAHALDHAN, THARAYIL HOUSE, KATTOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT -680702.

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ADDL.4 SHALLY T.P

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D/O. LATE PRAHALADHAN, THARAYIL HOUSE, KATTOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT -680702.

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(LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL.A2 TO A4 AS PER ORDER DATED 01.04.2024 IN IA.1/2024)

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RSA. Nos.615, 803 & 856 of 2016

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BY ADVS. K.JAGADEESH NIKHEL K GOPINATH V.RENJU

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RESPONDENTS/APPELLANT & RESPONDENTS 2,3/DEFENDANTS:

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1 ANITHA HARI W/O. HARI BALAKRISHNAN, THANDAYANPARAMBIL HOUSE, EDAMUTTAM DESOM, VALAPPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT-680506.

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2 PANKAJAKSHI D/O.KULANGARATH MANI, THARAYIL HOUSE, KATTOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT,NOW RESIDING AT SAFE WELL WOMENS HOSTEL, VAPPALASSERY, NEDUMBASSERY, ERNAKULAM DISTRICT,PIN 683 572.

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3 DAYANANDAN

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S/O.THARAYIL KUMARAN, UDAYANAGAR, AYYANTHOLE P.O,THRISSUR DISTRICT, 680 003.

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BY ADVS. SRI.T.C.SURESH MENON - R1 SRI.P.S.APPU- R1 SRI.M.UNNIKRISHNA MENON – R1 SRI.P.M.PAREETH - R2

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28.5.2024, ALONG WITH RSA.856/2016 & 803/2016, THE COURT ON 07.06.2024, DELIVERED THE FOLLOWING:

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RSA. Nos.615, 803 & 856 of 2016

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR

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FRIDAY, THE 7^TH DAY OF JUNE 2024 / 17TH JYAISHTA, 1946 RSA NO. 803 OF 2016

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AGAINST THE JUDGMENT AND DECREE DATED 30.03.2016 IN AS NO.51 OF 2011 OF III ADDITIONAL DISTRICT COURT, THRISSUR ARISING OUT OF THE JUDGMENT AND DECREE DATED 27.02.2010 IN OS NO.354 OF 2006 OF ADDITIONAL SUB COURT,IRINJALAKUDA

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APPELLANTS/APPELLANT/PLAINTIFF:

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1 PRAHLADHAN AGED 71 YEARS, S/O. LATE KUMARAN, THARAYIL HOUSE, KATTOOR VILLAGE, KATTOOR DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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ADDL.2 RAJALAKSHMI W/O. LATE PRAHLADHAN, THARAYIL HOUSE, KATTOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT -680702

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ADDL.3 VRINDA DEVI D/O. LATE PRAHLADHAN, THARAYIL HOUSE, KATTOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT -680702

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ADDL.4 SHALLY T.P D/O. LATE PRAHLADHAN, THARAYIL HOUSE, KATTOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT -680702

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(LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL.A2 TO A4 AS PER ORDER DATED 01.04.2024 IN IA.1/2024)

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RSA. Nos.615, 803 & 856 of 2016

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BY ADVS. SRI.K.JAGADEESH NIKHEL K GOPINATH SMT.V.RENJU

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 ANITHA HARI W/O. HARI BALAKRISHNAN, THANDAYANPARAMBIL HOUSE, EDAMUTTAM DESOM, VALAPPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT.

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2 PANKAJAKSHI D/O. KULANGARATH MANI, THARAYIL HOUSE, KATTOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, NOW RESIDING AT SAFE WELL WOMEN'S HOSTEL, VAPPALASSERY, NEDUMBASSERRY, ERNAKULAM DISTRICT-683572.

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3 DAYANANDAN S/O. THARAYIL KUMARAN, UDAYANAGAR, AYYANTHOLE P.O., THRISSUR DISTRICT-680003.

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BY ADVS.

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SRI.C.CHANDRASEKHARAN - R1 SRI.M.UNNIKRISHNA MENON SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.P.M.PAREETH - R2

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28.5.2024, ALONG WITH RSA.615/2016 & 856/2016, THE COURT ON 07.06.2024, DELIVERED THE FOLLOWING:

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'CR'

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RSA. Nos.615, 803 & 856 of 2016

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J U D G M E N T

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Dated this the 7^th day of June, 2024

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All these second appeals were preferred by a common

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appellant namely one Prahladan, against the judgment and decree in A.S.No.249 of 2010, AS.No.51 of 2011 and AS. No.50 of 2011 respectively, on the file of the III^rd Additional District Judge, Thrissur.

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Prahladan as plaintiff filed two suits, OS.No.354 of 2006 and O.S.No.404 of 2007 before the Additional Subordinate Judge's Court, Irinjalakuda. OS.No.354 of 2006 is for declaration and cancellation of a document and OS.No.404 of 2007 is for injunction.

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Admittedly, the suit properties originally belonged to one Kumaran, the father of Prahladan, who is now no more. Kumaran married thrice. His first two wives are no more and Pankajakshi, the 2^nd defendant in OS.354 of 2006 and 1^st defendant in OS.404 of 2007, is his 3^rd wife. Prahladan and Dayanandan, who is the 3^rd defendant in OS.354 of 2006 and 2^nd defendant in OS.404 of 2007

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are the children of Kumaran in his 1^st wife. In his second marriage,

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RSA. Nos.615, 803 & 856 of 2016

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Kumaran had two children namely Ashok Kumar and Anuroop Kumar, who died unmarried and issueless. During his life time, Kumaran had assigned some of his properties to Prahladan and Dayanandan. Thereafter, he had executed Exhibit A5 will No.7/93 on 19.1.1993 bequeathing his remaining properties in favour of Ashok Kumar and Anuroop Kumar, after reserving right of enjoyment to Pankajakshi. Since Ashok Kumar and Anuroop Kumar predeceased Pankajakshi, assuming that she obtained exclusive title over the properties covered by Exhibit A5 will, Pankajakshi assigned the plaint schedule property involved in OS. No.354 of 2006 in favour of one Anitha Hari, the 1^st defendant in that suit, as per Exhibit A6 Assignment Deed No.1797/2005.

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According to Plaintiff Prahladan, since Ashok Kumar and

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Anuroop Kumar predeceased Pankajakshi, the plaint schedule property devolved upon himself and Dayanandan being the legal heirs of Anuroop Kumar and as such Exhibit A6 Assignment Deed executed by Pankajakshi in favour of Anitha Hari is null and void. Therefore, in OS.No.354 of 2006, he prayed for a decree declaring that Exhibit A6 is null and void. He filed OS.No.404 of 2007

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RSA. Nos.615, 803 & 856 of 2016

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praying for an injunction restraining Pankajakshi from alienating or

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encumbering the scheduled property therein and from committing waste there.

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The contention taken by Pankajakshi and her assignee Anitha Hari is that by virtue of the provisions of Exhibit A5 will, on the death of Ashok kumar and Anuroop Kumar, by virtue of the operation of sub section 14 of the Hindu Succession Act 1956, the plaint schedule property devolved absolutely upon Pankajakshi and as such she has got every right to dispose of it. Therefore, they prayed for dismissing the suit.

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The learned Sub Judge tried both the suits jointly and as per a common judgment dated 27.2.2010, decreed both the suits and declared that Exhibit A6 Assignment deed is null and void and plaintiff Prahladan and Dayanandan are the legal heirs of deceased Ashok Kumar and Anuroop Kumar and a charge for a sum of Rs.1,00,000/- with 6% interest was created in the property covered by Exhibit A6 due to Anitha Hari from Pankajakshi. Pankajakshi was also permanently restrained from alienating or encumbering the scheduled property or from committing any waste there.

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RSA. Nos.615, 803 & 856 of 2016

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Aggrieved by the above judgment and decree of the trial

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court, the assignee, Anitha Hari, preferred AS.No.249 of 2010 while Prahladan filed AS. No.50 of 2011 and AS.No. 51 of 2011. As per common judgment dated 30.3.2016, the District Judge Thrissur, allowed AS.No.249 of 2010, set aside the judgment of the trial court and dismissed AS. Nos.50 and 51 of 2011. Dissatisfied with the above findings of the First Appellate Court, Prahladan filed these second appeals.

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At the time of admission, the following substantial questions of law were formulated by this Court in RSA No.615/2016:

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“i) Whether “Possession of the property by a Hindu wife for the welfare of the family” could be termed as “Possession in lieu of wife's maintenance”, when the recitals regarding maintenance is absent in the Will?

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ii) Whether the appellate court was right in holding an absolute right of Hindu women under Sec.14(1) of the Hindu Succession Act, over the properties in which she obtained a mere life interest as per the Will?

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iii) Whether Sec.14(2) of the Hindu Succession Act avoids ripening of a life interest into an absolute property, when the

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RSA. Nos.615, 803 & 856 of 2016

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property was obtained by a Will?”

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The common substantial questions of law formulated by

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this Court in RSA No.803/2016 and 615/ 2016 are as follows:

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“(i) Whether transformation of the limited estate of Hindu female,

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into her absolute property as per Sec.14(1) of the Hindu Succession Act, could obstruct or scuttle the rights of the beneficiaries of a bequest?

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(ii) Whether "possession of the property by a Hindu wife for the welfare of the family" be termed as "possession in lieu of wife's maintenance" when the recitals regarding maintenance is absent in the Will?

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(iii) Whether the appellate court was right in holding that a Hindu women has absolute right under Sec.14(1) of the Hindu Succession Act, over the properties in which she obtained a mere life interest as per a Will?

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(iv) Whether Sec.14(2) of the Hindu Succession Act avoids ripening of a life interest into an absolute estate, when the property was obtained by a Will?”

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Both sides were heard in detail on the above substantial

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questions of law. At the time of arguments, the learned counsel for

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RSA. Nos.615, 803 & 856 of 2016

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the respondents would ague that by virtue of the operation of Section 14 (1) of the Hindu Succession Act, 1956 Pankajakshi obtained absolute title over the properties covered by Exhibit A5 will and as such the claim of the appellant that he along with Dayanandan inherited the above property being the legal heirs of Ashok Kumar and Anuroop Kumar, is devoid of any merits.

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On the other hand, the learned counsel for the appellant would argue that Pankajakshi had obtained only life interest and subject to her life interest, the entire properties devolved upon the appellant and his brother Dayanandan and as such, in this case, there is no application of Sub-section (1) of Section 14 of Hindu Succession Act and that the relevant provision applicable is Subsection (2) of Section 14.

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In support of the above argument, the learned counsel for the respondent relied upon the decision of the Hon'ble Supreme Court in Munni Devi Alias Nathi Devi (Dead) Through LRs and others v. Rajendra (dead) through LRs and Others [AIR 2022 SC 2596] .

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In the decision in Tulasamma and Others v. Sesha

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RSA. Nos.615, 803 & 856 of 2016

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Reddy (Dead) by LRs [(1997) 3 SCC 99], the Hon'ble Supreme Court has elaborately considered the pre-existing rights to maintenance of a Hindu woman, after interpreting Sub-section (1) and (2) of Section 14 of the Hindu Succession Act and summarised the position in paragraph 70, as follows:

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70. We would now like to summarise the legal conclusions which 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 Section 14(1) and (2) of the Act of 1956. These conclusions may be stated thus:

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(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

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RSA. Nos.615, 803 & 856 of 2016

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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.

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(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.

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(3) Sub-section (2) of Section 14 is in the nature of a proviso and 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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(4) Sub-section (2) of Section 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 pre-existing rights. In such cases a restricted estate in favour of a female is legally permissible and 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 subsection 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 placed, if any,

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RSA. Nos.615, 803 & 856 of 2016

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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 transferee.

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(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).

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(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 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 Section14(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 rank trespasser without any right or title.

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(7) That the words "restricted estate" used in Section 14(2) are wider than limited interest as indicated in Section14(1) and they include not only limited interest, but

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RSA. Nos.615, 803 & 856 of 2016

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also any other kind of limitation that may be placed on the transferee.”

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In the decision in Munna Devi (supra), the Hon'ble

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Supreme Court reiterated the principles laid down in Tulasamma (supra) and has held in paragraph 20 that:

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20. “As stated earlier, Hindu woman’s right to maintenance is a tangible right against the property which flows from the spiritual relationship between the husband and the wife. Such right was recognized and enjoined under the Shastric Hindu Law, long before the passing of the 1937 and the 1946 Acts. Where a Hindu widow is found to be in exclusive settled legal possession of the HUF property, that itself would create a presumption that such property was earmarked for realization of her pre-existing right of maintenance, more particularly when the surviving coparcener did not earmark any alternative property for recognizing her pre-existing right of maintenance. The word “possessed by” and “acquired” used in Section 14(1) are of the widest amplitude and include the state of owning a property. It is by virtue of Section 14(1) of the Act of 1956, that the Hindu widow’s limited interest gets automatically enlarged into an absolute right, when such property is possessed by her whether acquired before or after the commencement of 1956 Act in lieu of her right to maintenance.”

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15. On the other hand, the learned counsel for the appellant

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relied upon the decisions of Hon'ble Supreme Court in Ranvir

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RSA. Nos.615, 803 & 856 of 2016

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Dewan v. Rashmi Khanna and another, [(2018) 12 SCC 1], Jogi Ram v. Suresh Kumar [2022 (1) KLJ 761] and the decision of a Single Bench of this Court in M Vijayalekshmi & Ors. v. V.G.

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Aravindakshan [ILR 2023 (3) Ker. 571].

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After analysing various decisions, in paragraph 40 in Ranvir Dewan's case (supra), the Hon'ble Supreme Court held that :

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“40. Reading of the aforementioned principle of law laid down in the cases of V. Tulasamma (supra) and Sadhu Singh v. Gurdwara Sahib Narike [(2006) 8 SCC 75], it is clear that the ambit of Section 14 (2) of the Act must be confined to cases where property is acquired by a female Hindu for the first time as a grant 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. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of Section 14(2) of the Act, even if the instrument, decree, order or award allotting the property prescribes a “restricted estate” in the property.”

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In the decision in M. Vijayalekshmi & Ors. (supra), a

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Single Bench of this Court, while considering the scope of Subsection (2) of Section 14 of the Hindu Succession Act, held that:

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RSA. Nos.615, 803 & 856 of 2016

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“31. From the above, it would be clear that in order to attract Section 14(2), the property to be 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. It further provides that the instrument should not create or confirm or recognise a preexisting right which the female Hindu already possessed. In the above case, ultimately it was found that since there were no indications either in the Will or externally to indicate that the property has been given to the female Hindu in recognition of or in lieu of her right to maintenance it was held that the situation fell within the ambit of sub Section (2) of Section 14 of the Act and the restricted life estate granted to the female Hindu would not be enlarged into an absolute estate.”

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18. In the decision in Jogi Ram ( supra), in paragraph 18, the

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Hon'ble Supreme Court held that:

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“18. Sub-Section (2) of Section 14 of the said Act is in the nature of a proviso. It begins with a ‘non-obstante clause’. Thus, it says that “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....” etc. where a restricted estate in such property is prescribed. In our view the objective of Sub-Section (2) above is quite clear as enunciated repeatedly by this Court in various judicial pronouncements, i.e., there cannot be a fetter in a owner of a

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RSA. Nos.615, 803 & 856 of 2016

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property to give a limited estate if he so chooses to do including to his wife but of course if the limited estate is to the wife for her maintenance that would mature in an absolute estate under Section 14(1) of the said Act.”

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Further, in paragraphs 30 and 31 of the above decision, the Hon'ble Supreme Court held that:

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“30. In our view the relevant aspect of the aforesaid conclusion is para 4 which opines where sub-section (2) of Section 14 of the said Act would apply and this does inter alia applies to a Will which may create independent and new title in favour of females for the first time and is not a recognition of a pre-existing right. In such cases of a restricted estate in favour of a female is legally permissible and Section 14(1) of the said Act will not operate in that sphere.

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31. We may add here that the objective of Section 14(1) is to create an absolute interest in case of a limited interest of the wife where such limited estate owes its origin to law as it stood then. The objective cannot be that a Hindu male who owned selfacquired property is unable to execute a Will giving a limited estate to a wife if all other aspects including maintenance are taken care of. If we were to hold so it would imply that if the wife is disinherited under the Will it would be sustainable but if a limited estate is given it would mature into an absolute interest irrespective of the intent of the testator. That cannot be the objective, in our view.”

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RSA. Nos.615, 803 & 856 of 2016

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20. In the decision in Ram Vishal (Dead) by Lrs and Others

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v. Jagan Nath and another [(2004) 9 SCC 302], while evaluating

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the scope of Sub-section (1) of Section 14 of the Hindu Succession Act, in paragraph 16 the Hon'ble Supreme Court held that:

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“16. In our view, the authority in Raghubar Singh Case (1998) 6 SCC 314 can be of no assistance to the respondent. As has been held by this Court, a pre-existing right is a sine quo non for conferment of a full ownership under Section 14 of the Hindu Succession Act. The Hindu female must not only be possessed of the property but she must have acquired the property. Such acquisition must be either by way of inheritance or devise, or at a partition or “in lieu of maintenance or arrears of maintenance” or by gift or by her own skill or exertion, or by purchase or by prescription”

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On a perusal of the above decisions, it can be seen that Sub section (1) of Section 14 of Hindu Succession Act applies where an instrument declares or recognises a pre-existing right, such as a claim to maintenance or where a property is allotted or transferred to

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a female in lieu of maintenance or a share at partition, by way of gift or by her own skill or exertion, or by purchase or by prescription or share to which the female is entitled. There is also no fetter in a

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RSA. Nos.615, 803 & 856 of 2016

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owner of a property to give a limited estate, if he so chooses to do, including to his wife. At the same time, instruments, decrees, awards, gifts etc. which create independent and new titles in favour of the females for the first time do not ripen into full ownership, by the operation of Sub-section (1). Similarly, Sub-section (1) does not apply to a will which may create independent and new title in favour of females for the first time and is not a recognition of a pre-existing right.

¶177

In the instant case, both parties relies upon Exhibit A5 will executed by Kumaran. The law is well settled that while construing a will, the intention of the testator is to be given paramount importance. For the purpose of ascertaining his intention, the recitals of the will as a whole is to be considered. In Exhibit A5 will, the testator has specifically stated that he had already given 55 cents of landed property to his two children born in his 1^st wife and that he intends to give the remaining properties to Ashok Kumar and Anuroop Kumar, the children born in the 2^nd marriage. In the will, it is further stated that after the death of the testator, Pankajakshi shall possess and enjoy the scheduled property, look after the family and

¶178

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after her lifetime, the property will devolve upon his sons Ashok Kumar and Anuroop Kumar. The will further makes it clear that the Pankajakshi will not have any right to alienate the said property. Therefore, the intention of the testator is clear that he wanted to bequeath the scheduled property to his sons Ashok Kumar and Anuroop Kumar and only life interest was reserved in favour of Pankajakshi. In the above circumstances, possession of the scheduled property given to Pankajakshi for the welfare of the family could not be termed as possession in lieu of wife's maintenance.

¶181

In the decision in Jogi Ram (supra), in a similar instance, the testator reserved life interest in favour of his wife, without any right to alienate the property and thereafter to vest the property absolutely in favour of his son. After analysing various precedents as well as Sub-sections (1) and (2) of Section 14 of the Hindu Succession Act, the Hon'ble Supreme Court held that in the above factual situation, Sub-section (1) of Section 14 has no application and the relevant provision applicable is Sub-section (2) of Section 14.

¶182

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RSA. Nos.615, 803 & 856 of 2016

¶184

Since, in the instant case also, the testator reserved only

¶185

life interest to Pankajakshi and his intention is to vest the schedule property on his sons Ashok Kumar and Anuroop Kumar, the relevant provision applicable in this case is Sub-section (2) and not Sub-section (1) of section 14 of the Hindu Succession Act and as such the life interest obtained by Pankajakshy as per Exhibit A5 has not ripened into full ownership. In short, Pankajakshi is not the title holder of the properties covered by Exhibit A5 will.

¶186

In the above circumstances, after the death of Ashok Kumar and Anuroop Kumar, the plaint schedule properties devolved upon their legal heirs, namely the appellant Prahladan and Dayanandan, the half brothers coming under entry II in clause II of the Schedule to Hindu Succession Act. Since Pankajakshi is not a legal heir of Ashok Kumar and Anuroop Kumar, she is not entitled to get any share from their property.

¶187

Though Pankajakshi claimed that she had sold the plaint schedule property to discharge the liabilities that occurred in connection with the necessities of Ashok Kumar and Anroop Kumar, she has not specified the amount spent in that respect. In the proof

¶188

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affidavit also, she has not stated the details of the amount spent in that respect. She has produced receipts Exhibits B6 and B6(a) to substantiate the above claim. Exhibits B6 and B6(a) are receipts issued from Kattoor Service Co-operative Bank Ltd. and those receipts are issued in the name of Kumaran and there is nothing to show that those amounts were remitted by Pankajakshi. Moreover, the amount involved in Exhibit B6 is only Rs.998.50 and the amount in Exhibit B6(a) is only Rs.832.40 (Total Rs.1830.90). No other evidence is adduced by Pankajakshi to prove that she had spent a sum of Rs.1,00,000/- by borrowing from others to meet the necessities of Ashok Kumar and Anuroop Kumar. In the above circumstances, it is to be held that Pankajakshi has miserably failed in proving that she had spent any such amount for the necessities of Ashok Kumar and Anuroop Kumar and as such her claim that she has assigned the plaint schedule property to discharge the above liabilities cannot be entertained or accepted. Therefore, the charge created by the trial court for a sum of Rs.1,00,000/- over the plaint schedule property involved in O.S.No.354 of 2006 is liable to be set aside. In the above circumstance, the substantial questions of law

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formulated, are answered accordingly, against the respondents in these appeals.

¶194

In the light of the answers to the above substantial questions of law, it can be seen that the 1^st appellate Court has failed to apply the law applicable to the facts of the case correctly while setting aside the judgment and decree passed by the trial court and as such these appeals are liable to be allowed, the impugned judgment and decree of the Appellate Court are liable to be set aside and the judgment and decree of the trial court is liable to be restored, except to the extent it provided a charge for Rs.1,00,000/- in the property covered by Exhibit A6.

¶195

In the result, these appeals are allowed. The impugned judgment and decree of the Appellate Court are set aside and the judgment and decree of the trial court are restored. The charge created for a sum of Rs.1,00,000/- over the plaint schedule property in O.S. No.354 of 2006 is set aside.

Sd/-

C. PRATHEEP KUMAR,

JUDGE

sou.

Prahladhan v. Anitha Hari

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Prahladhan v. Anitha Hari

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