Holding

When property is allotted to a female Hindu in lieu of maintenance, the instrument merely confirms a pre‑existing right, so Section 14(2) does not apply and Section 14(1) makes the property her absolute property.

Summary

The case arose from a consent decree dated 20 July 1964 that allotted 6 acres 33 guntas of land to Sundrabai, the first wife of the deceased Trimukhrao, for her maintenance, with a restriction that the land would revert to the second wife and her son after Sundrabai's death. After Sundrabai died in 1992, her heirs claimed ownership of the land under Section 14(1) of the Hindu Succession Act, 1956, arguing that the property became her absolute property. The respondents (heirs) argued that Section 14(2) applied because the decree created a restricted estate. The Supreme Court held that the decree merely confirmed Sundrabai's pre‑existing right to maintenance, so Section 14(2) was inapplicable and Section 14(1) made the land her absolute property, rendering the restrictions ineffective. Consequently, the appeal by the second wife and her son was dismissed, upholding the lower court's decision in favour of the heirs.

Issues considered

Whether property allotted to a female Hindu in lieu of maintenance under a consent decree is governed by Section 14(1) or Section 14(2) of the Hindu Succession Act, 1956.
Whether the term 'possessed by' in Section 14(1) includes constructive possession arising from a decree confirming a pre‑existing right.
Whether a decree that merely confirms a pre‑existing right to maintenance creates a restricted estate within the ambit of Section 14(2).
Whether the restriction that the land revert to the second wife after the first wife's death can limit the absolute ownership conferred by Section 14(1).
Whether the first wife's share in the joint family property affects the applicability of Section 14(1).

Legislation cited

Hindu Succession Act, 1956s. 12, s. 14(1), s. 14(2), s. 6, s. 8

Subjects

Hindu Succession ActSection 14maintenance rightabsolute propertyrestricted estateconsent decreepre‑existing rightpossessionwidow's rightsco‑ownership

Judgment

SANTHOSH AND ORS. A
v.
SARASWATIIIBAI AND ANR.

NOVEMBER 20, 2007
B
_, [S.B. SINHA AND HARJIT SINGH BEDI, JJ.)

Hindu Succession Act, 1956:
Sections 14(1) and (2)-Applicability of-Right offemale Hindu c
to possess any property-Jn a consent decree, widow allotted property
by way ofmaintenance with limited right over property-Held: Since
property was acquired in lieu ofright to maintenance, it was by virtue
ofpre-existing right and such acquisition would not be within ambit
of s.14(2)-s.14(1) would apply-Property would become absolute D
property ofsuch female Hindu.

In a suit between the first wife of 'T' and the second wife and her
son, a compromise was entered and a consent decree dated 20.7.1964
was passed. The terms of consent decree was that the land to the extent
E
of 6 acres 33 guntas was given to first wife for her maintenance till her
death; thatthe second wife and her son would not interfere and obstruct
in the peaceful possession of that portion ofland given to first wife; that
the first wife would not alienate land which was given for maintenance
~ ' and after the death of first wife, the land given to her would be reversed
F
to the second wife and her son. The first wife died in 1992.

Respondents-plaintiffs who were heirs and legal representatives
of the firstwife filed a suit claiming the said land on the ground that first
wife was the owner thereof in terms of s.14(1) ofHindu Succession Act,
1956. Appellants-defendants contested the suit on the ground that first G
-i
wife was not the absolute owner of the said property having been allotted
to her by reason of the consent decree and that the suit land was allotted
to her byway of maintenance which she could keep in possession only

375 H
376 SUPREME COURT REPORTS [2007] 12 S.C.R.

_,
A during her life time and therefore s.14(2) of the Act and not s.14(1) would
apply.

The suit was dismissed on the ground that respondents were not
the owners and were not in possession of the suit property. First appellate
8 Court allowed the appeal opining that s.14(1) being applicable, the
respondents became the owners of the suit property. Second appeal by
appellants was dismissed. Hence the present appeal.

Dismissing the appeal, the Court

c HELD: 1. The possession of first wife in respect of 6 acres 33
guntas ofland even prior to the institution of the suit has been accepted
in the said consent decree. Appellants undertook not to interfere in her
peaceful possession thereover. Admittedly after the death of'T' who
died after coming into force of the Hindu Succession Act, first wife
D became one of the co-owners of the property. It is, therefore, not a case
where she had no right to possess the said land. If she had a right to
possess the said land as a co-owner, the question of divesting her of the
said right by invoking sub-s.(2) of s.14 of the Act would not arise. The
stipulations made in the consent decree dated 20. 7.1964 must thus be
E construed having regard to the well settled legal position.
[Paras 13and14) [383-G; 384-A, B, CJ

Shakuntla Devi v. Kam/a and Ors., [2005) 5 SCC 390 and Chandrika
Singh (D) by L.Rs v.Sarjug Singh andAnr., (2006) 13 SCALE 408, relied
F on. .-
Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva
and Ors., [1959) Supp. I SCR 968, referred to.

2.1. The Hindu female's right to maintenance is not an empty
G 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. 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
H family has property, the female has the legal right to be maintained
SANTHOSH v. SARASWATHlBAI 377

· therefrom. If a charge is created for the maintenance of a female, the A
said right becomes a legally enforceable one. At any rate, even without·
a charge the claim for maintenance is doubtless a pre-existing right so
that any transfer declaring or recognising such a right does not confer
- any new title but merely endorses or confirms the pre-existing rights.
[Para 15] (384-D, E, F, G] B
_,
2.2. S.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 c
legislation. Sub-section (2) of s.14 is in the nature of a proviso and has
a field of its own without interfering with the operation of s.14(1)
materially. The proviso should not be construed in a manner so as to
destroy the effect of the main provision or the protection granted by
s.14(1) or in a way so as to become totally inconsistent with the main D
provision. Sub-section (2) of s.14 applies to instruments, decrees,
awards, gifts, etc. which create independent and new titles in favour of
the females for the fU"St 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 E
legally permissible and s.14(1) will not operate in this sphere. Where,
however, an instrument merely declares or recognises a pre-existing
right, such as a claim to maintenance or partition or share to which the
.... female is entitled, the sub-section has absolutely no application and the
female's limited interest would automatically be enlarged into an F
absolute one by force ofs.14(1) and the restrictions placed, if any, under
the documentwould 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 G
...., of the transferee. [Para 15] [385-A, B, C, D, E, F]

2.3. The use of express terms like 'property acquired by a female
Hindu at a partition', 'or in lieu of maintenance', 'or arrears of
maintenance', etc. in the Explanation to s.14(1) clearly makes sub-
H
378 SUPREME COURT REPORTS [2007] 12 S.C.R.

A section (2) inapplicable to these categories which have been expressly
excepted from the operation of sub-section (2). The words 'possessed
by' used by the Legislature in s. 14(1) are of the widest possible
amplitude and include the state ofowning a property even though the
owner is not in actual or physical possession of the same. Thus, where
B a widow gets a share in the property under a preliminary decree before
-
or at the time when the 1956 Act had been passed but had not been
given actual possession under a final decree, the property would be
deemed to be possessed by her and by force of s.14(1) she would get
absolute interest in the property. It is equally well settled that the
C 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.
[Para 15] (385-G; 386-A, B, CJ

D V Tulasamma and Ors. v. Sesha Reddy (dead) by L.Rs., (1977] 3
SCC 99 and Nazar Singh and Ors. v. Jagjit Kaur and Ors., (1996] 1
sec 35, relied on.
3. The pre-existing right of first wife was crystallized by reason of
the said consent decree. Furthermore there is nothing on record to show
E that 12 acres 33 guntas ofland was the only property belonging to the
joint family and thus, she had been granted more lands to which she
was not entitled to. (Para 17] [387-G; 388-A]
CIVIL APPELLATE nJRISDICTION : Civil Appeal No. 5321 of
F 2007.
.-
From the final Judgment and Decree dated 15.11.2005 of the High
Court ofKamataka at Bangalore in R.S.A. No. 276/2003.
C.G. Solshe and Vinesh Solshe for the Appellants.
G Basava Prabhu S. Patil, V.N. Raghupathy, B. Subrahmanya Prasad,
Narayan P. Kengas~r and B.B. Patil for the Respondents. ,_
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted
H
SANTHOSH v. SARASWATHIBAI [SINHA, J.] 379

2. Application of Section 14(1) of the Hindu Succession Act, 1956 A
(hereinafter referred to as 'the Act') calls for consideration in this appeal
which arises out of a judgment and order dated 15th November, 2005
passed by a learned Single Judge of the Kamataka High Court at
-I Bangalore in Regular Second Appeal No. 276 of2003.
B
3. The short factual matrix involved may be noticed at the threshold.
....
4. Forthe said purpose, we may notice the genealogy of the family.
Shivaraya (Dead)
S/o. Hanumanthappa Patil
I c
Trimukhrao (Died in 1957) Manikappa (Dead)
= 1st wife Sundari Bai
(Died on 16.10.1992)
D

=2nd wife Kashibai
(D-4)

Saraswathi Sharadabai E
(P-1) (P-2)

Shantabai Mallikarjun Jagadevi Mallamma Neelamma
Neelamma
(Died in 1987) F
I = wife K Kamalabai
(D-3)
I

Santosh Satish G
(D-1) (D-2)
5. Original Suit bearing No. 34of1964 was filed by Sundrabai,
first wife of Trimukhrao (respondent No.1 herein) against Mallikarjun
(since deceased) and Kashibai (defendant No.4 therein). A consent
H
~

380 SUPREME COURT REPORTS [2007] 12 S.C.R.

~

A decree was passed in that suit, the relevant clauses whereof were as
under:-

"1. The plaintiff and the defendant no.2 are the wives of deceased
Trimbakrao. The defendant No. I is the son of Trimbakrao. The
B plaintiffSundrabai and Mallikarjun and his mother Kashibai resides
separately. ,_
,..,
2. That as per compromise the land Sy. No.73 Kh. No.145 to
the extent of measuring 6 acres 33 gunatas. R.A. Rs.9.00 situated
at Khandala, on north side bounded in the east the land of
c Shivalingappa Biradar in the west public way. In the north the land
ofShankarappa in the south remain land Sy. No.73, was given to
the plaintiff for her maintenance. She is in possession of that portion
of land since 5/6 years. The defendants will not interfere and
D obstruct in the peaceful possession of that portion of land which
was given to the plaintiff for her maintenance, till her death. The
defendants No, 1 and 2 will remain in possession of remaining half
portion ofland Sy.No. 73 on south side as owner. The plaintiff will
not alienate (through gift or sale) land which was given for her
E maintenance.
ft
3. That after the death of the plaintiff the land given to her will be
reversed to the defendant No.1 and 2. The parties will bear their
costs of the cost"."
. ...
F 6. Mallikarjun died in the year 1987. Sundrabai died in 1992.
Respondents herein who are heirs and legal representatives ofSundrabai '•

filed Original Suit No.210 of 1993 claiming the said land admeasuring 6
Acres 33 guntas from the Northern side of Survey No. 73 on the ground
that she had become owner thereof in terms of Section 14(1) of the Act.
G Appellants who were arrayed in the suit as defendants inter alia
contended that Sundrabai was not the absolute owner of the said property v
having been allotted to her by reason of the consent decree. It was
furthermore contended that the land in suit was allotted to her by way of
maintenance which she could keep in possession only during her life time
H
SANTHOSH v. SARASWATHIBAI [SINHA, J.] 381

and, therefore, Section 14(2) of the Act and not Section 14(1) of the A
Act would apply.

7. The said suit was dismissed on the premise that the plaintiffs were
not the owners and were not in possession of the suit property.

_, 8. On an appeal having been preferred thereagainst, the Principal B
..;- District Judge Bidar by his judgment and order dated 2nd January, 2003
allowed the said appeal opining that Section 14( 1) of the Act being
applicable, the-plaintiffs became the owners of the suit property. By reason
of the impugned judgment the second appeal preferred by the appellants
has been dismissed.
c
9. Mr. Sofashe, learned counsel appearing on behalf of the appellants,
in support of this appeal inter alia would submit tliat the High Court
committed a serious error of law in so far as it failed to take into
consideration that Sundrabai on partitioi: could not have been allotted 6 D
• Acres 33 guntas ofland and in that view of the matter, although the land
which could fall in her share would be covered by Section 14(1) of the
Act, but according to the.learned counsel the share of Sundrabai in the
joint family being 7/24 in the total land of joint family being 12 acres 33
guntas, share of Sundrabai would come only to 3 acres 29 guntas. It was E
submitted that the word "possessed" contained in Section 14 (1) of the
Act must be construed to mean ownership as has been held by this Court
~..- . in [1959] Supp. 1 SCR 968 : Gummalapura Taggina Matada
Kotturuswami v. Setra Veeravva and Ors.
·~
F
10. Mr. Patil, learned counsel appearing on behalf of the respondents,
on the other hand, would. support the judgment. It was moreover
contended that there is nothing on record to show that the total agricultural
lands belonging to the joint family was only to the extent of 12 acres 33
guntas. In fact, Mr. Patil would urge that there were other properties of G
"-I the joint family besides, .the suit land.

11. Sub-sections (1) and (2) of Section 14 of the Act reads as
under:-
H
382 SUPREME COURT REPORTS [2007] 12 S.C.R.

A "14. Property ofa female Hindu to be her absolute property-
(!) Any property possessed by a female Hindu, whether acquired
before or after the commencement of this Act, shall be held by
her as full owner thereof and not as a limited owner.

B Explanation - In this sub-section, "property" includes both
,_
moveable and immovable property acquired by a female Hindu by ,__
inheritance or devise, or at a partition, or in lieu of maintenance or
anears of maintenance, or by gift from any person, whether a
relative or not, before, at or after the marriage, or by her own skill
c or exertion, or by purchase or by prescription, or in any other
manner whatsoever, and also any such property held by her as
stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any
D 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 4
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
12. In Gummalapura Taggina Matada (supra) on which reliance
has been placed by the learned counsel, this Court held that Section 14(1)
of the Act has wide application. It not only takes within its sweep a land
which was not only in possession of the female Hindu but also covers the t ..... '

F land over which she has a right to possess stating:-
•
"Of course, possession referred to in section 14 need not be actual
physical possession or personal occupation of the property by the
Hindu female but may be possession in law. The possession of a
licensee, lessee or a mortgagee from the female owner or the
G possession of a guardian or a trustee or an agent of the female
owner would be her possession for the purpose of section 14. The v

word "possessed" is used in section 14 in a broad sense and in
the context possession means the state of owning or having in one's
hands or power. It includes possession by receipt of rents and
H
SANTHOSH v. SARASWATHIBAI [SINHA, J.] 383

profits. The learned Judges expressed the view that even if a A
trespasser were in possession of the land belonging to a female
owner, it might conceivably be regarded as being in possession of
the female owner, provided the trespasser had not perfected his
title. We do not think that it is necessary in the present ~ase to go
to the extent to which the learned Judges went. It is sufficient to B
say that "possessed" in section 14 is used in a broad sense and in
the context means the state of owning or having in one's hand or
power. In the case of Gostha Behari v. Haridas Samanta, P.N.
Mookherjee, J., expressed his opinion as to the meaning of the
words "any property possessed by a female Hindu" in the following C
words:-

"The opening words in "property possessed by a female Hindu"
obviously mean that to come within the purview of the section
-.• the property must be in possession of the female concerned D
at the date of the commencement of the Act. They clearly
contemplate the female's possession when the Act came into
force. That possession might have been either actual or
constructive or in any form recognised by law, but unless the
female Hindu, whose limited estate in the disputed property is E
claimed to have been transformed into absolute estate under
this particular section, was at least in such possession, taking
the word "possession" in its widest connotation, when the Act
came into force, the section would not apply."
F
• (See also (2005] 5 SCC 390 : Shakuntla Devi v. Kam/a and Ors.,
and (2006) 13 SCALE 408 : Chandrika Singh (D} by L.Rs v. Sarjug
Singh and Anr.,

13. Sundrabai's possession in respect of 6 acres 33 guntas ofland G
even prior to the institution of the suit has been accepted in the said
consent decree. Appellants herein undertook not to interfere in her
peaceful possession thereover. Admittedly after the death ofTrmukhrao
who died after coming into force of the Act, Sundrabai became one of
the co-owners of the property being one of his wives who had half share H
384 SUPREME COURT REPORTS [2007] I 2 S.C.R.

A in the joint properties. Succession thereof was governed by Sections 6,
8 and 12 of the Act. It is, therefore, not a case where she had no right to
possess the said land. If she had a right to possess the said land as a co-
owner, the question of divesting her of the said right by invoking sub-
section (2) of Section 14 of the Act would not arise.
B
14. The stipulations made in the consent decree dated 20th July, ,_
I 964 must thus be construed having regard to the well settled legal
position. It is now a well settled principle of law that in considering a deed,
the legal position obtaining in this behalf should be kept in mind.
c 15. Legal position in regard to the right of a female Hindu was laid
down by this Court in [1977] 3 SCC 99 : V Tulasamma and Ors. v.
Sesha Reddy (dead) by L.Rs., wherein the legal consequences were
summarized as under :-
D "(I) The Hindu female's right to maintenance is not an empty
fomrnlity 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
E 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 ifhe or the family has
property, the female has the legal right to be maintained therefrom.
F
If a charge is created for the maintenance of a female, the said •
right becomes a legally enforceable one. At any rate, even without
a charge the claim for maintenance is doubtless a pre-existing right
so that any transfer declaring or recognising such a right does not
confer any new title but merely endorses or confirms the pre-
G
existing rights.

(2) Section 14(1) and the Explanation thereto have been couched
in the widest possible terms and must be liberally construed in
favour of the females so as to advance the object of the 1956 Act
H
SANTHOSH v. SARASWATHIBAI [SINHA, J.] 385

and promote the socio-economic ends sought to be achieved by A
this long needed legislation.

(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 B
_J
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. (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 C
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 !egally
permissible and Section 14(1) will not operate in this sphere.
Where, however, an instrument merely declares or recognises a D
pre-existing right, such as a claim to maintenance or partition or
share to which the female is entitled, the sub-section has absolutely .
no application and the female's limited interest would automatically
be enlarged into an absolute one by force of Section 14(1) and
the restrictions placed, if any, under the document would have to E
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 tal(en out of the ambit of sub-section (2) and would be governed
by Section 14(1) despite any restrictions p laced on the powers
of the transferee. F

(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 G
expressly excepted from the operation of sub-section (2).

(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 H
386 SUPREME COURT REPORTS [2007] 12 S.C.R.

A 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 Section 14(1) she would
B 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.

C (7) That the words 'restricted estate' used in Section 14(2) are
wider than limited interest as indicated in Section 14(1) and they
include not only limited interest, but also any other kind of limitation
that may be placed on the transferee."

D 16. In Nazar Singh and Ors. v. Jagjit Kaur and Ors., [1996] 1 I .

SCC 35, this Court following Tulasamma (supra) held as under:-

"The principles enunciated in this decision have been reiterated in
a number of decisions later but have never been departed from.
E According to this decision, Sub-section (2) is 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. It has also been
F held that where the property is acquired by a Hindu female in lieu
of right of maintenance inter alia, it is in virtue of a pre-existing
right and such an acquisition would not be within the scope and
ambit of Sub-section (2) even if the instrument, decree, order or
award allotting the property to her prescribes a restricted estate
G in the property. Applying this principle, it must be held that the suit
lands, which were given to Harmel Kaur by Gurdial Singh in lieu
\.-
of her maintenance, were held by Harmel Kaur as full owner
thereof and not as a limited owner notwithstanding the several
restrictive covenants accompanying the grant. (Also see the recent
H decision of this Court in Mangat Mal v. Punni Devi, where a right
~

SANTHOSH v. SARASWATHIBAI [SINHA, J.] 387
.:..-- ~

to residence in a house property was held to attract Sub-section A
(1) of Section 14 notwithstanding the fact that the grant expressly
conferred only a limited estate upon her.) According to Sub-section
(1 ), where any property is given to a female Hindu in lieu of her
maintenance before the coinmencement of the Hindu Succession
f.d, such property becomes the absolute property of such female B
~·
J Hindu on the commencement of the Act provided the said property
was "possessed" by her. Where, however, the property is given
to a female Hindu towards her maintenance after the
commencement of the Act, she becomes the absolute owner
thereof the moment she is placed in possession of the said property c
(unless, of course, she is already in possession) notwithstanding
the limitations and restrictions contained in the instrument, grant or
award whereunder the property is given to her. This proposition
follows from the words in Sub-section (1 ), which insofar as is
relevant read : "Any property possessed by a female Hindu.... after D
;
the commencement of this Act shall be held by her as full owner
and not as a limited owner". In other words, though the instrument,
grant, award or deed creates a limited estate or a restticted estate,
as the case may be, it stands transformed into an absolute estate
E
provided such property is given to a female Hindu in lieu of
maintenance and is placed in her possession. So far as the
expression "possessed" is concerned, it too has been the subject-
_, . matter of interpretation by several decisions of this Court to which
it is not necessary to refer for the purpose of this case." F
-,;

(emphasis supplied)

17. In view of the aforementioned binding authoritative
pronouncements of this Court, we are of the opinion that the pre-existing
right of Sundrabai was crystallized by reason of the said consent decree. · G
,.,_,, Furthermore there is nothing on record to show that 12 acres 33 guntas
of land was the only property belonging to the joint family and thus, she
had been granted more lands to which she was not entitled to.

H
388 SUPREME COURT REPORTS [2007] 12 S.C.R.

A 18. In view of the matter, we do not find any infirmity in the impugned
judgment. The appeal is accordingly dismissed with costs. Counsel's fees
assessed at Rs. I 0,0001-.

D.G. Appeal dismissed.
B