JOGI RAMversusSURESH KUMAR & ORS

766                      [2022]REPORTS
               SUPREME COURT    9 S.C.R. 766                [2022] 9 S.C.R.


A                                  JOGI RAM
                                        v.
                          SURESH KUMAR & ORS.
                      (Civil Appeal Nos. 1543-1544 of 2019)
B                             FEBRUARY 01, 2022
         [SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]
              Hindu Succession Act, 1956 – s.14(2) vis-à-vis 14(1) –
      Objective and applicability of – Held: Objective of sub-sec.(2) is
      that there cannot be a fetter in a owner of a property to give a
C
      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 u/s.14(1) – Sub-sec.(2) of s.14
      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
D     of a pre-existing right – In such cases a restricted estate in favour
      of a female is legally permissible and s.14(1) of the said Act will not
      operate in that sphere – Further, the objective of s.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 self-acquired
E
      property is unable to execute a Will giving a limited estate to a wife
      if all other aspects including maintenance are taken care of – In
      the present case, the testator had taken all care for the needs of
      maintenance of his second wife (‘RD’) by ensuring that the revenue
      generated from the estate would go to her alone – However, he
F     wished to give only a limited life interest to her as the second wife
      with the son (appellant) inheriting the complete estate after her
      lifetime – Thus, it would be the provisions of s.14(2) of the said Act
      which would come into play in such a scenario and ‘RD’ only had a
      life interest in her favour – Hence, the respondents-third parties
      (claiming to be bona fide purchasers) who derived their rights from
G
      ‘RD’ cannot inherit a better title than what she had – Further, in
      view of the sequence of litigations, respondents can hardly be said
      to be bona fide purchasers – The first endeavour was by the daughter
      of ‘RD’ by seeking a collusive decree when she had no interest in
      the property – She then sought to create lease interest in the property
H     – Both these aspects were held against ‘RD’ and her daughter right
                                        766
             JOGI RAM v. SURESH KUMAR & ORS.                              767


till the Supreme Court in the first round of litigation clearly opining   A
that ‘RD’ had only a limited estate in the property – Despite having
lost right till the Supreme Court, the sale deeds were intervening
factors even during the pendency of the litigation which went against
‘RD’ – Also, High Court has wrongly proceeded on the basis that
the first round of litigation would not create any binding precedents
                                                                          B
because there was change in law after the first round of litigation –
There was, in fact, no change in law as all the judgments were
much prior in time – The rights of the respondents are derived only
from ‘RD’ and once the judgment is binding on her it cannot be
said that she can create rights contrary to the judgment in favour
of third parties and that too during the pendency of the litigation –     C
View taken by trial court and the first appellate court is correct –
Sale deeds in favour of the respondents cannot be sustained –
Impugned judgment of the High Court is set aside – Decree of the
trial court (in favour of the appellant decreeing his suit for
declaration and injunction challenging the sale deeds executed by
                                                                          D
‘RD’) affirmed by the appellate court is reaffirmed – Transfer of
Property Act, 1882 – s.41 – Res judicata.
      Allowing the appeals, the Court
       HELD: 1.1 Sub-Section (2) of Section 14 of the said Act is
in the nature of a proviso. It begins with a ‘non-obstante clause’.       E
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. The
objective of sub-Section (2) is quite clear as enunciated repeatedly
by this Court in various judicial pronouncements, i.e., there cannot      F
be a fetter in a owner of a 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. The Will while
conferring a limited estate on Ram Devi, Tulsi Ram had clearly            G
stated that she will earn income from the 12 property for her
livelihood. The income, thus, generated from the property is what
has been given for maintenance and not the property itself. The
next clarification is that after the lifetime of Ram Devi, the
appellant will get the ownership of the remaining half portion also.
                                                                          H
768            SUPREME COURT REPORTS                        [2022] 9 S.C.R.


A     It is specified that in case Ram Devi pre-deceases Tulsi Ram,
      then all the properties would go absolutely to the appellant and
      that the other children will have no interest in the property. [Paras
      18, 19][776-G-H; 777-A-D]
             1.2 There are only two real aspects to be examined in the
B     present case - i. In the given factual scenario did Ram Devi
      become the absolute owner of the property in view of Section
      14(1) of the said Act or in view of the Will the Explanation under
      Section 14(2) would apply. ii. What is the effect of the first round
      of litigation which came up to this Court between the appellant
      and Ram Devi, the two beneficiaries of the Will. Both these
C     questions have to be answered in favour of the appellant and for
      that reason the impugned judgment is unsustainable. [Paras 26,
      27][779-A-C]
             1.3 The relevant aspect of the conclusion in the seminal
      judgment in V. Tulasamma & Ors. case is para 4 which opines
D     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
E     Section 14(1) of the said Act will not operate in that sphere. 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 self-acquired property is unable to execute
      a Will giving a limited estate to a wife if all other aspects including
F     maintenance are taken care of. If this Court was 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. [Paras 30, 31][782-G-H; 783-A-C]
G           V. Tulasamma & Ors. v. Sesha Reddy (Dead) by LRs.
            (1977) 3 SCC 99 : [1977] 3 SCR 261 – referred to.
            1.4 The testator in the present case had taken all care for
      the needs of maintenance of his wife by ensuring that the revenue

H
             JOGI RAM v. SURESH KUMAR & ORS.                              769


generated from the estate would go to her alone. He, however,             A
wished to give only a limited lift interest to her as the second
wife with the son inheriting the complete estate after her lifetime.
Thus, it would be the provisions of Section 14(2) of the said Act
which would come into play in such a scenario and Ram Devi only
had a life interest in her favour. The natural sequittur is that the
                                                                          B
respondents cannot inherit a better title than what the vendor
had and, thus, the view taken by the trial court and the first
appellate court is the correct view and the sale deeds in favour of
the respondents cannot be sustained. [Para 32][783-C-E]
        1.5 On consideration of the second aspect, the sequence
of litigations can hardly be said to classify the respondents as          C
bona fide purchasers. The first endeavour was by the daughter of
Ram Devi by seeking what is undoubtedly a collusive decree
when she had no interest in the property. She then sought to
create lease interest in the property. Both these aspects were
held against Ram Devi and her daughter right till the Supreme             D
Court in the first round of litigation clearly opining that Ram Devi
had only a limited estate in the property. Despite having lost right
till the Supreme Court, the sale deeds were intervening factors
even during the pendency of the litigation which went against the
vendor Ram Devi. The High Court wrongly proceeded on the
basis that the first round of litigation would not create any binding     E
precedents because there was change in law after the first round
of litigation. There is, in fact, no change in law as all the judgments
were much prior in time. The rights of the respondents are derived
only from Ram Devi and once the judgment is binding on Ram
Devi it cannot be said that she can create rights contrary to the         F
judgment in favour of third parties and that too was done during
the pendency of the litigation. The transactions in question are
not only not bona fide but dubious in character to somehow deny
the appellant rights conferred under the Will respondents being
third parties. The repeated endeavour of Ram Devi and her
daughter did not succeed earlier and cannot be permitted to               G
succeed qua the purchasers from Ram Devi. The impugned
judgment of the single Judge of the High Court is set aside and
the decree of the trial court dated 13.8.2009 as affirmed by the
appellate court dated 7.10.2010 is reaffirmed. [Paras 33-35][783-
E-G; 784-B, D-E]                                                          H
770            SUPREME COURT REPORTS                      [2022] 9 S.C.R.


A           Jupudy Pardha Sarathy v. Pentapati Rama Krishna &
            Ors. (2016) 2 SCC 56 : [2015] 14 SCR 374; Shakuntla
            Devi v. Kamla & Ors. (2005) 5 SCC 390 –
            distinguished.
            Mathura Prasad Bajoo & Ors. v. Dossibai N.B.
B           Jeejebhoy (1970) 1 SCC 613 : [1970] 3 SCR 830;
            Pankajakshi (dead) through LRs & Ors. v. Chandrika
            & Ors. AIR 2016 SC 1213 : [2016] 3 SCR 1018; Sadhu
            Singh v. Gurudwara Sahib Narike & Ors. (2006) 8 SCC
            75 : [2006] 5 Suppl. SCR 799; Gaddam Ramakrishna
C           Reddy & Ors. v. Gaddam Ramireddy & Ors. (2010) 9
            SCC 602 : [2010] 11 SCR 656 – referred to.
                            Case Law Reference
      [1977] 3 SCR 261                referred to         Para 7
D     [2015] 14 SCR 374               distinguished       Para 7
      (2005) 5 SCC 390                distinguished       Para 7
      [1970] 3 SCR 830                referred to         Para 7
      [2016] 3 SCR 1018               referred to         Para 13
E
      [2006] 5 Suppl. SCR 799         referred to         Para 23
      [2010] 11 SCR 656               referred to         Para 23
            CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1543-
F     1544 of 2019.
            From the Judgment and Order dated 22.02.2018 of the High Court
      of Punjab and Haryana at Chandigarh in RSA Nos. 210 and 209 of
      2011.

G           Gagan Gupta, Adv. for the Appellant.
           Viswajeet Singh, Sr. Adv., Manish Kumar Choudhary, Bhaskar
      Mishra, Ms. Srishti Khurana, Ms. Srishti Choudhary, Ms. Namita
      Choudhary, Advs. for the Respondents.

H
              JOGI RAM v. SURESH KUMAR & ORS.                                 771


      The Judgment of the Court was delivered by                              A
      SANJAY KISHAN KAUL, J.
      Background:
      1. The consequences of a testamentary disposition by a Will dated
15.4.1968 by one Tulsi Ram, who passed away on 17.11.1969 is still            B
pending resolution before us after half a century.
       2. The Will aforesaid bequeathed the testator’s estate to his son,
the appellant herein, and his second wife Ram Devi (the first wife being
deceased whose progeny is the appellant). Land measuring 175 kanals
and 9 marla, a residential house and a Bara is Village Jundla, Haryana        C
was bequeathed half and half to the appellant and Ram Devi. However,
the nature of bequeath was different for the two. The appellant was
given absolute ownership rights to the extent of his share of land and
property whereas Ram Devi was given a limited ownership for her
enjoyment during her lifetime with respect to her share of the land with
                                                                              D
a specific provision that she could not alienate, transfer or create third
party rights over the same. Thereafter the property was to vest absolutely
in the appellant after her lifetime.
        3. It appears that the properties were enjoyed as per the Will
after the demise of Tulsi Ram in 1969 for quite a few years till the first
                                                                              E
round of litigation began – Bimla Devi, daughter of Ram Devi instituted
a suit in the Court of Sub Judge 1st Class, Karnal for declaration against
her mother, Ram Devi, claiming that she had become owner in possession
of half share of the land willed to Ram Devi by Tulsi Ram, which resulted
in a decree being passed on 15.1.1986. It may be stated at this stage
itself that by very nature the suit was collusive. On the decree being        F
passed Bimla Devi executed a lease deed in favour of one Amar Singh
on 17.6.1986 in respect of land falling within Ram Devi’s limited share.
This prompted the appellant to file a Civil Suit No.94/1993 for declaration
and permanent injunction before the Senior Sub Judge, Karnal impleading
Ram Devi, Bimla Devi and Amar Singh. The gravamen of the suit was
that Ram Devi having only a limited life interest the decree of declaration   G
by Bimla Devi had been obtained through collusion and the lease deed
was a bogus document which would not have any effect upon the rights
of the appellant to inherit the property after the demise of Ram Devi.
The suit was, however, contested only by Ram Devi with the other two
                                                                              H
772             SUPREME COURT REPORTS                            [2022] 9 S.C.R.


A     defendants being proceeded ex parte. The suit resulted in a judgment
      and decree dated 27.9.1995 to the effect that the appellant having proved
      the Will executed by Tulsi Ram, the case clearly fell under Section 14(2)
      of the Hindu Succession Act, 1956 (hereinafter referred to as the ‘said
      Act’) which was in the nature of an exception as it precluded the benefits
      of Section 14(1) of the said Act to accrue with respect of a property
B
      inter alia inherited under a Will with a restricted right in such a property.
      Thus, it was concluded that the limited estate of Ram Devi could not be
      expanded to an absolute estate and the decree of the Civil Court dated
      15.1.1986 and the lease deed dated 17.6.1986 were consequently set
      aside.
C            4. It may be noted that even though the suit was pending in the
      interregnum period Ram Devi executed two sale deeds dated 29.4.1993
      qua land measuring 38 kanals 14 marlas in favour of one Dharam Singh
      and 11 kanals 3 marlas in favour of Kanta Devi. Another sale deed was
      subsequently executed on 8/9.6.1998 in favour of Baldeva for land
D     measuring 40 kanals 8 marlas. All these were part of the suit land. The
      latter was during the pendency of the appeal by Ram Devi before the
      Additional District Judge, Karnal which appeal was also finally dismissed
      vide judgment dated 15.4.1999. Insofar as the appeal qua Baldeva was
      concerned, that was also dismissed due to inability of Ram Devi to serve
      notice on Baldeva despite sufficient opportunity. In the third round of the
E     same litigation Ram Devi’s second appeal under Section 41 of the Punjab
      Courts Act, 1918 (hereinafter referred to as the ‘PC Act’) also met the
      same fate vide judgment dated 23.10.2001 in RSA No.1700/1999. The
      whole matter ought to have received a quietus thereafter as the Special
      Leave Petition was also dismissed vide order dated 29.4.2002. It may
F     be noticed that in the interregnum period Ram Devi also passed away
      on 26.8.1999. This is as far as the story of the first round of litigation.
             5. The second round of litigation began when the appellant instituted
      a Civil Suit No.256/157 of 2008 before the Civil Judge, SD, Karnal for
      declaration and injunction challenging the sale deeds executed by Ram
G     Devi. This suit was also decreed vide judgment and decree dated
      13.8.2009 in favour of the appellant.
             6. Once again the gravamen of the decision of the learned Civil
      Judge was the earlier judgment and decree dated 27.9.1995 opining that
      Ram Devi had only a limited ownership right and could not have alienated
H     the suit property. There being no change in law, the previous decree in
               JOGI RAM v. SURESH KUMAR & ORS.                                 773
                   [SANJAY KISHAN KAUL, J.]

favour of the appellant was held binding among the parties and their           A
successors-in-interest. The sale deeds executed, thus, found to be
unsustainable being against the decree of the lower court. Once again,
opinion was the same as to the construction of Sections14(1) and 14(2)
of the said Act as any contrary interpretation would tantamount to
proscribing the right of a Hindu to execute a Will as envisaged under
                                                                               B
Section 30 of the said Act. The court granted a decree of possession to
the appellant being the rightful owner of the same. The court also noted
that the title of the purchasers could not be better titled than Ram Devi
possessed as they had acquired their rights from her and could not even
be considered bona fide purchasers for value in view of the history of
the litigation.                                                                C
      7. Kanta Devi, legal heirs of Baldev and Dharam Singh then
preferred an appeal against the said judgment dated 13.8.2009, which
was dismissed vide judgment dated 7.10.2010 in Civil Appeal No.56/
2009. That gave rise to the second appeal before the High Court, being
RSA No.210/2011.                                                               D
        8. The respondents pleaded before the High Court by relying upon
the judgment of this Court in V. Tulasamma & Ors. v. Sesha Reddy
(Dead) by LRs.1 to contend that Ram Devi’s right over the suit property
granted under the Will had crystallised into an absolute ownership right
making her competent to transfer the same. The subsequent judgment             E
of this Court in Jupudy Pardha Sarathy v. Pentapati Rama Krishna
& Ors.2 was also referred to in support of the said proposition. The
decree in the first round of litigation was contended not to operate as res
judicata in the second suit as the judgment in the earlier suit was contrary
to the law prevailing at the time of their consideration (Shakuntla Devi
v. Kamla & Ors.3 which referred to Mathura Prasad Bajoo & Ors. v.              F
Dossibai N.B. Jeejebhoy 4). Without prejudice to the same the
respondents also claimed to be bona fide purchasers for value and,
thus, were protected under Section 41 of the Transfer of Property Act,
1882 (hereinafter referred to as the ‘TP Act’).
       9. On the other hand the appellant contended that the doctrine of       G
res judicata would apply in view of the earlier adjudication as the matter

1
  (1977) 3 SCC 99
2
  (2016) 2 SCC 56
3
  (2005) 5 SCC 390
4
  (1970) 1 SCC 613                                                             H
774               SUPREME COURT REPORTS                       [2022] 9 S.C.R.


A     of Ram Devi having a limited estate has been upheld right till the Supreme
      Court. The appellant had also taken possession of the suit property and
      execution of the judgments was under challenge before the High Court.
            10. The fate of the respondents after the amendment turned
      favourable as they succeeded before the High Court in terms of the
B     impugned judgment dated 22.2.2018. The discussion in the impugned
      judgment revolves around three aspects:
              (a) Whether the first round of litigation operate as res judicata
                  for the appeal.
              (b) Whether Ram Devi’s limited right over the suit property
C                 conferred through the Will had crystallised into an absolute
                  right under Section 14(1) of the said Act.
              (c) Whether the High Court was mandated to frame a substantial
                  question of law in deciding the second appeal.

D            11. On the first aspect the High Court found that the factual
      scenario and legal principles enunciated in Shakuntla Devi5 case would
      be squarely applicable to the facts of the present case. In the factual
      scenario of that case, one Uttamdasi was the successor of the suit
      property and had alienated the same through a sale deed and gift deed.
      The daughter of Uttamdasi, Takami, successfully challenged the alienation
E     and the decree became final. Uttamdasi thereafter executed a Will with
      respect to the same suit property. Tikami instituted a suit for possession
      on the basis of a previous declaratory decree wherein she had been held
      to have ownership right of the property. This Court opined that the case
      would constitute as a principle of res judicata. The first declaratory
F     decree in favour of Tikami was granted on the basis of a limited right
      held by Uttamdasi in the suit property. By the time the second decree
      was tried, the Supreme Court in V. Tulasamma & Ors.6 case had
      declared the law under Section 14 of the said Act to the extent that the
      beneficiary under a Will such as Uttamdasi with limited rights would
      become the absolute owner of the same. Since the law had been altered
G     since the first declaratory decree, the same would not operate as res
      judicata in a decree for possession. The judgment in V. Tulasamma &
      Ors.7 case was not retrospective but a declaratory decree simpliciter
      5
        (supra)
      6
        (supra)
      7
H       (supra)
                JOGI RAM v. SURESH KUMAR & ORS.                                 775
                    [SANJAY KISHAN KAUL, J.]

would not attain finality if it is used in a future decree of possession and    A
it would be open for a defendant in a future suit for possession to establish
that the earlier declaratory decree was not lawful. Thus, the respondents
were held entitled to challenge the appellant’s possession of the suit
property.
        12. On the second aspect the High Court has taken a view that V.        B
Tulasamma & Ors.8 case had sufficiently resolved any uncertainty
under Sections 14(1) & 14(2) of the said Act. A Hindu female has a
right to maintenance on a property if a charge was created for her
maintenance, the right would become legally enforceable irrespective,
even without a charge, the claim for maintenance was a pre-existing
right so that any transfer declaring such right would not confer a new          C
title but merely confirm pre-existing rights and Section 14(2) of the said
Act cannot be interpreted in a manner that would dilute Sections 14(1)
and 14(2) of the said Act. Only in a scenario where the instrument created
a new title in favour of the wife for the first time, would Section 14(2)
would come into play and not where there was a pre-existing right.              D
Ram Devi was held to have been conferred with a limited right which
would translate into an absolute right over the suit property as it was
only a confirmation of the pre-existing right over the property.
      13. On the last aspect it was held that in view of the decision of
this Court in Pankajakshi (dead) through LRs & Ors. v. Chandrika                E
& Ors.9, the High Court was not required to frame a substantial question
of law while deciding the plea as Section 97(1) of the Code of Civil
Procedure, 1908 (hereinafter referred to as the ‘said Code’) would have
no applicability to the PC Act.
       14. On the appellant approaching this Court notice was issued in         F
the SLP on 4.7.2018 with the direction to maintain status quo as on the
date as the appellant had already taken over possession in the execution
of the decree. Leave was granted on 4.2.2019 and the interim order
made absolute.
         15. In the conspectus of the aforesaid, the matter was heard by        G
us.
         The Arguments:

8
    (supra)
9
    AIR 2016 SC 1213                                                            H
776            SUPREME COURT REPORTS                            [2022] 9 S.C.R.


A           16. In order to appreciate the provisions of the said Act, it may be
      appropriate to reproduce Section 14 of the said Act as under:
            “14. Property of a female Hindu to be her absolute
            property.—
            (1) Any property possessed by a female Hindu, whether acquired
B           before or after the commencement of this Act, shall be held by
            her as full owner thereof and not as a limited owner.
            Explanation.—In this sub-section, “property” includes both movable
            and immovable property acquired by a female Hindu by inheritance
            or devise, or at a partition, or in lieu of maintenance or arrears of
C           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.
D           (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.”
E            17. There is no doubt that Section 14 of the said Act is the part of
      the said Act to give rights of a property to a Hindu female and was a
      progressive step. Sub-Section (1) of Section 14 of the said Act makes it
      clear that it applies to properties acquired before or after the
      commencement of the said Act. Any property so possessed was to be
F     held by her as full owner thereof and not as a limited owner. The
      Explanation to sub-Section (1) of Section 14 of the said Act defines the
      meaning of “property” in this sub-section to include both movable and
      immovable property acquired by the female Hindu by inheritance or
      devise or a partition, or in lieu of maintenance or arrears of maintenance,
      or by gift from any person, or by her skill or exertion, or by purchase or
G     by prescription or in any other manner whatsoever, including stridhana.
      The Explanation is quite expansive.
             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
H
              JOGI RAM v. SURESH KUMAR & ORS.                                    777
                  [SANJAY KISHAN KAUL, J.]

by way of gift or under a will or any other instrument or under a decree         A
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 property
to give a limited estate if he so chooses to do including to his wife but of
                                                                                 B
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.
       19. Before considering the submissions it would be appropriate to
turn to the Will itself. The Will while conferring a limited estate on Ram
Devi, Tulsi Ram had clearly stated that she will earn income from the
property for her livelihood. The income, thus, generated from the property       C
is what has been given for maintenance and not the property itself. The
next clarification is that after the lifetime of Ram Devi, the appellant will
get the ownership of the remaining half portion also. It is specified that
in case Ram Devi pre-deceases Tulsi Ram, then all the properties would
go absolutely to the appellant and that the other children will have no          D
interest in the property. We may note that Tulsi Ram had six children.
One son and four daughters are from the first wife and Bimla Devi was
the daughter from the second wife. At the stage when the Will was
executed one of the daughters was unmarried and the Will also provided
that in case for performing the marriage Ram Devi needs money she
will have the right to mortgage the property and earn money from the             E
same and will further have the right to gain income even prior to the
marriage.
      20. We have set forth the terms and conditions of the Will to
understand the intent of the testator. The testator is, at least, clear in
terms that the income derived from the property is what is given to the          F
second wife as maintenance while insofar as the properties are
concerned, they are divided half and half with the appellant having an
absolute share and the wife having a limited estate which after her lifetime
was to convert into an absolute estate of the appellant.
       21. Now turning to the submissions of the learned counsel for the         G
parties.
      22. Learned counsel for the appellant contended that the life estate
was not given to Ram Devi in lieu of recognition of any pre-existing right
of Ram Devi or in lieu of maintenance and, thus, Section 14(2) of the
                                                                                 H
778             SUPREME COURT REPORTS                           [2022] 9 S.C.R.


A     said Act would apply and not Section 14(1) of the said Act. The plea of
      res judicata was again reiterated. It was urged that the High Court
      proceeded on an erroneous premise as if the law had changed from the
      first round of litigation while the fact was that the law was the same at
      both stages of time. The distinction which was sought to be made was
      that Shakuntla Devi10 case was wrongly relied upon as the Will in that
B
      case was dated 1.10.1935 and it was, thus, a pre-1956 Will and, thus,
      that judgment was not precedent for factual scenario in question. The
      suit property was a self-acquired property of Tulsi Ram and, thus, he
      was competent to execute the Will.
            23. We may note that learned counsel for the appellant did seek
C     to contend that since possession of the property was taken over by the
      appellant and Ram Devi was not in possession thereof, she cannot claim
      the benefit of Section 14(1) of the said Act (Sadhu Singh v. Gurudwara
      Sahib Narike & Ors.11 and Gaddam Ramakrishna Reddy & Ors. v.
      Gaddam Ramireddy & Ors.12). We may, however, note that in our
D     perspective that is not a material consideration as the possession is stated
      to have been taken over in pursuance of the decree of the trial court.
             24. On behalf of the respondents it was, once again, emphasised
      that the factual scenario was similar to Shakuntla Devi13 case and the
      rights of a female Hindu post the said Act have been crystallised and
E     enunciated in V. Tulasamma & Ors.14 case since she was an absolute
      owner she was entitled to sell the land and the respondents were bona
      fide buyers who were protected by Section 41 of the TP Act. Further no
      substantial question of law was required to be framed in view of the
      Constitution Bench judgment of the Supreme Court in Pankajakshi
      (dead) through LRs & Ors.15 case.
F
             Our view:
             25. We have extracted the relevant portions of the enactment, the
      document in question being the Will and have already opined on the
      interpretation of the Will. The submissions of the learned counsel for the
G     parties have, thus, to be appreciated in the conspectus of the same.
      10
         (supra)
      11
         (2006) 8 SCC 75
      12
         (2010) 9 SCC 602
      13
         (supra)
      14
         (supra)
      15
H        (supra)
                   JOGI RAM v. SURESH KUMAR & ORS.                                   779
                       [SANJAY KISHAN KAUL, J.]

      26. We do believe that there are only two real aspects to be                   A
examined in the present case as the issue of even framing a question of
law stands settled. The two aspects, in our view are as under:
          i. In the given factual scenario did Ram Devi become the
             absolute owner of the property in view of Section 14(1) of the
             said Act or in view of the Will the Explanation under Section           B
             14(2) would apply.
          ii. What is the effect of the first round of litigation which came
              up to this Court between the appellant and Ram Devi, the two
              beneficiaries of the Will.
     27. We are of the view that both these questions have to be                     C
answered in favour of the appellant and for that reason the impugned
judgment is unsustainable.
      28. We would first like to turn to the seminal judgment in V.
Tulasamma & Ors.16 case. In para 20 the propositions emerging in
respect of incidents and characteristics of a Hindu woman’s right to                 D
maintenance have been crystallised as under:
          “20. Thus on a careful consideration and detailed analysis of the
          authorities mentioned above and the Shastric Hindu Law on the
          subject, the following propositions emerge with respect to the
          incidents and characteristics of a Hindu woman’s right to                  E
          maintenance:
               (1) that a Hindu woman’s right to maintenance is a personal
               obligation so far as the husband is’ concerned, and it is his duty
               to maintain her even if he has no property. If the husband has
               property then the right of the widow to maintenance becomes           F
               an equitable charge on his property and any person who
               succeeds to the property carries with it the legal obligation to
               maintain the widow;
               (2) though the widow’s right to maintenance is not a right to
               property but it is undoubtedly pre-existing right in property, i.e.   G
               it is a jus ad rem not jus in rem and it can be enforced by the
               widow who can get a charge created for her maintenance on
               the property either by an agreement or by obtaining a decree
               from the civil court;
16
     (supra)                                                                         H
780             SUPREME COURT REPORTS                            [2022] 9 S.C.R.


A               (3) that the right of maintenance is a matter of moment and is
                of such importance that even if the joint property is sold and
                the purchaser has notice of the widow’s right to maintenance,
                the purchaser is legally bound to provide for her maintenance;
                (4) that the right to maintenance is undoubtedly a pre-existing
B               right which existed in the Hindu Law long before the passing
                of the Act of 1937 or the Act of 1946, and is, therefore, a pre-
                existing right;
                (5) that the right to maintenance flows from the social and
                temporal relationship between the husband and the wife by
C               virtue of which the wife becomes a sort (I.L.R. 27 Mad. 45.
                (2) I.L.R. 18 Bom. 452) of co-owner in the property of her
                husband, though her co-ownership is of a subordinate nature;
                and
                (6) that where a Hindu widow is in possession of the property
D               of her husband, she is entitled to retain the possession in lieu of
                her maintenance unless the person who succeeds to the
                property or purchases the same is in a position to make due
                arrangements for her maintenance.”
              29. In the light of the aforesaid passage, Sections 14(1) & 14(2)
E     of the said Act were entered by the Court. The word “possessed” was
      held to be used in a wide sense not requiring a Hindu woman to be an
      actual or physical possession of the property and it would suffice if she
      has a right in the property. The discussion in para 33 thereafter opines
      that the intention of the Parliament was to confine sub-section (2) of
      Section 14 of the said Act only to two transactions, viz., a gift and a will,
F     which clearly would not include property received by a Hindu female in
      lieu of maintenance or at a partition. The intention of the Parliament in
      adding the other categories to sub-section (2) was merely to ensure that
      any transaction under which a Hindu female gets a new or independent
      title under any of the modes mentioned in Section 14(2) of the said Act.
G     The conclusions were thereafter set forth in para 62 of the judgment as
      under:
            “62. 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
H
       JOGI RAM v. SURESH KUMAR & ORS.                                   781
           [SANJAY KISHAN KAUL, J.]

this appeal as to the interpretation of s. 14(1) and (2) of the Act of   A
1956. These conclusions may be stated thus:
   (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       B
   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        C
   right to be maintained therefrom. If a charge is created for the
   maintenance of a female, the said right becomes a legally
   enforceable one. At any rate, even without a charge the claim
   for maintenance is doubtless a pre-existing right so that any
   transfer declaring or recognising such a right does not confer        D
   any new title but merely endorses or confirms the pre-existing
   rights.
   (2) Section 14(1) and the Explanation thereto have been
   couched in the widest possible terms. And must be liberally
   construed in favour of the females so as to advance the object        E
   of the 1956 Act and promote the socio-economic ends, sought
   to be achieved by this long needed legislation.
   (3) Sub-section (2) of s. 14 is in the nature of a proviso and has
   a field of its own without interfering with the operation of
   s. 14(1) materially. The proviso should not be construed in a         F
   manner so as to destroy the effect of the main provision or the
   protection granted by s. 14(1) or in a way so as to become
   totally inconsistent with the main provision.
   (4) Sub-section (2) of s. 14 applies to instruments, decrees,
   awards, gifts etc. which create independent and new titles in         G
   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 s. 14(1) will not operate in this sphere. Where, however,
   an instrument merely declares or recognises a pre-existing right,     H
782            SUPREME COURT REPORTS                           [2022] 9 S.C.R.


A              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 s. 14(1) and the
               restrictions placed, if any, under the document would have to
               be ignored. Thus where a property is allotted or transferred to
B
               a female in lieu of maintenance or a share at partition, the
               instrument is taken out of the ambit of sub- s. (2) and would be
               governed by s.14(1) despite any restrictions placed on the
               powers of the transferee.
               (5) The use of express terms like “property acquired by a female
C              Hindu at a partition”, “or in lieu of maintenance” “or arrears of
               maintenance” etc. in the Explanation to s. 14(1) clearly makes
               sub-s.(2) inapplicable to these categories which have been
               expressly excepted from the operation of sub-s.(2).
               (6) The words “possessed by” used by the Legislature in s.
D              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
E              given actual possession under a final decree, the property would
               be deemed to be possessed by her and by force of s. 14(1) she
               would get absolute interest. in the property. It is equally well
               settled that the possession of the widow, however, must be
               under some vestige of a claim, right or title, because the section
               does not contemplate the possession of any rank trespasser
F              without any right or title.
               (7) That the words “restricted estate” used in s. 4(2) are wider
               than limited interest as indicated in s.14(1) and they include
               not only limited interest, but also any other kind of limitation
               that may be placed on the transferee.”
G
             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
H
               JOGI RAM v. SURESH KUMAR & ORS.                                   783
                   [SANJAY KISHAN KAUL, J.]

estate in favour of a female is legally permissible and Section 14(1) of         A
the said Act will not operate in that sphere.
        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 self-acquired property is unable           B
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.                                                                        C
        32. The testator in the present case, Tulsi Ram, had taken all care
for the needs of maintenance of his wife by ensuring that the revenue
generated from the estate would go to her alone. He, however, wished
to give only a limited lift interest to her as the second wife with the son
inheriting the complete estate after her lifetime. We are, thus, of the          D
view that it would be the provisions of Section 14(2) of the said Act
which would come into play in such a scenario and Ram Devi only had
a life interest in her favour. The natural sequittur is that the respondents
cannot inherit a better title than what the vendor had and, thus, the view
taken by the trial court and the first appellate court is the correct view
                                                                                 E
and the sale deeds in favour of the respondents cannot be sustained.
        33. On consideration of the second aspect, we must begin by
stating that the sequence of litigations can hardly be said to classify the
respondents as bona fide purchasers. The first endeavour was by the
daughter of Ram Devi by seeking what is undoubtedly a collusive decree
when she had no interest in the property. She then sought to create lease        F
interest in the property. Both these aspects were held against Ram Devi
and her daughter right till the Supreme Court in the first round of litigation
clearly opining that Ram Devi had only a limited estate in the property.
Despite having lost right till the Supreme Court, the sale deeds were
intervening factors even during the pendency of the litigation which went        G
against the vendor Ram Devi.
        34. We may also notice that the reliance on Shakuntla Devi17
case by the High Court is misplaced as the factual scenario cannot be
said to be identical. In fact the most crucial aspect was that the Will in
17
     (supra)                                                                     H
784                  SUPREME COURT REPORTS                    [2022] 9 S.C.R.


A     question was dated 1.10.1935, a pre-1956 Will which is the distinguishing
      factor. The same factual scenario prevailed in Jupudy Pardha Sarathy18
      case. We must also notice that the High Court wrongly proceeded on
      the basis that the first round of litigation would not create any binding
      precedents because there was change in law after the first round of
      litigation. There is, in fact, no change in law as all the judgments were
B
      much prior in time. We have already stated that the rights of the
      respondents are derived only from Ram Devi and once the judgment is
      binding on Ram Devi it cannot be said that she can create rights contrary
      to the judgment in favour of third parties and that too was done during
      the pendency of the litigation. We believe from the facts on record that
C     the transactions in question are not only not bona fide but dubious in
      character to somehow deny the appellant rights conferred under the
      Will respondents being third parties. The repeated endeavour of Ram
      Devi and her daughter did not succeed earlier and cannot be permitted
      to succeed qua the purchasers from Ram Devi.
D               Conclusion:
             35. The result of the aforesaid is that the appeals are allowed and
      the impugned judgment of the learned single Judge of the High Court is
      set aside and the decree of the trial court dated 13.8.2009 as affirmed
      by the appellate court dated 7.10.2010 is reaffirmed. The parties are left
E     to bear their own costs.

      Divya Pandey                                                Appeals allowed.
      (Assisted by : Deepak Panwar, LCRA)



F




G




      18
H          (supra)