Challenging the judgment and decree passed in O.S.No.9049 of 1996 on the file of the III Additional Judge, City Civil Court, Chennai, the plaintiff has filed the above appeal.
2. The plaintiff died during the pendency of the appeal and therefore, her legal representatives were brought on record as appellants 2 to 8.
3. The plaintiff filed the suit in O.S.No.9049 of 1996 for partition to divide the suit property by metes and bounds and allot one-sixth share to each of the plaintiffs and for rendition of accounts.
4. Originally, the suit was filed by Meenakshi (1st plaintiff) and her sisters viz., the respondents 3 to 5. Subsequently, the respondents 3 to 5 transposed as defendants 4 to 6 before the trial court, therefore, the respondents 3 to 5 were defendants 4 to 6 in the suit. The 1st defendant is the father of the plaintiff and defendants 2 to 6 and he died during the pendency of the suit and the defendants 2 & 3 were recorded as the legal representatives of the deceased 1st defendant.
5. The brief case of the plaintiff is as follows:
5.1. According to the plaintiff, she and the defendants 4 to 6 are the daughters of the 1st defendant and the defendants 2 & 3 are his sons. Deivayanai Ammal is their mother, who died on 18.12.1990. The suit property originally belonged to one Rukmani Ammal, who is the maternal grand mother of the plaintiff and defendants 2 to 6 and the mother-in-law of the deceased 1st defendant.
5.2. The said Rukmani Ammal executed a Settlement Deed dated 17.03.1953 in favour of Deivayanai Ammal bequeathing the suit property for life in favour of Deivayanai Ammal and vested remainder absolutely in favour of the plaintiff and defendants 2 to 6. According to the plaintiff, even if the Settlement Deed is construed as though it conveys absolute right to Deivayanai Ammal, the plaintiff and the defendants 2 to 6 are entitled, under Hindu Succession Law, to inherit as heirs of Deivayanai Ammal. If the Settlement Deed is construed as document conveying life interest to Deivayanai Ammal as claimed by the plaintiff, absolute vested remainder in favour of the plaintiff and the defendants 2 to 6, the plaintiff and the defendants 2 to 6 alone are entitled to the estate of Rukmani Ammal after the death of Deivayanai Ammal. Deivayanai Ammal was enjoying and administering the property till her life time, after the property being assessed in her name.
5.3. The 1st defendant, in collusion with the defendants 2 & 3, had fraudulently prepared a Will with evil motive and with a view to deprive the plaintiff and defendants 4 to 6 of the lawful shares in the property. According to the plaintiff, the Will is a forged and fictitious document. Under the Will dated 11.11.1990, Deivayanai Ammal had bequeathed the entire property in favour of the 1st respondent alone, to the exclusion of the plaintiff and defendants 2 to 6, who are the legal heirs. The said Will was not executed with sound and disposing state of mind by Deivayanai Ammal and she could not have executed such a Will. The said Will is not valid and binding on the plaintiff and the defendants 4 to 6. The Will was not executed voluntarily and out of her volition and free mind. The 1st defendant falsely claims absolute right over the suit property under the forged bogus Will.
5.4. The 5th defendant was living along with her husband in the suit property till September 1991, when the defendants forcibly dispossessed her from the property. Since the plaintiff and defendants 2 to 6 are absolutely entitled to the suit property, mere dispossession will not deprive them of their lawful share in the properties of Deivayanai Ammal. The defendants are collecting huge income by letting out the suit property without giving any share to the other sharers. During the invalid period of Deivayanai Ammal, the defendants got the signature of Deivayanai Ammal and mortgaged the property for Rs.7,000/-.
5.5. In view of the indifference and non-cooperation of the defendants 1 to 3, the plaintiff is not interested in continuing to be joint and co-owner. Therefore, by notice dated 21.09.1991, the plaintiff expressed her intention and willingness to divide the property by metes and bounds and allot one-sixth share to her. The defendants 1 to 3 sent a reply disputing the averments stated in the notice. In these circumstances, the plaintiff filed the suit.
6. The brief case of the 1st defendant is as follows:
6.1. According to the 1st defendant, Deivayanai Ammal is a house wife and the 1st defendant had performed the marriage of his daughters, by borrowing money by mortgaging the suit property, along with his wife and the 1st defendant alone had settled the dues out of his own income, without any assistance from anyone. Even during the life time of Deivayanai Ammal, the 1st defendant had given good education to his daughters. The 1st defendant was employed with Industrial Training Institute as Instructor. Previously, he was employed as Wood Carver in I.T.I. After his marriage, he was maintaining his father-in-law's family and his sister-in-law out of his self earnings. The marriage of his wife's sister was also celebrated and performed by the 1st defendant out of his self earnings. The 1st defendant's family was maintained only by him and not by Deivayanai Ammal at any point of time.
6.2. The 1st defendant performed marriage of his sister-in-law in 1953. For that purpose, the suit property was mortgaged to one Shanmugam Chettiar for a sum of Rs.700/- by the mother-in-law of the 1st defendant. The 1st defendant alone repaid the entire loan with accrued interest to the said Shanmugam Chettiar and redeemed the property out of his own funds. In this background, his mother-in-law Rukmani Ammal had settled the property in faovur of his wife Deivayanai Ammal.
6.3. After the settlement of the property in favour of his wife, he put up thatched shed. He had mortgaged the suit property in the year 1954 to one Mrs.Adhi Lakshmi Ammal for Rs.1,500/- to construct the shed with asbestos shed. At that time, the plaintiff was only seven years old. The 4th defendant was five years old. The defendants 5 & 6 were unborn. Thereafter, in the year 1956, the 1st defendant mortgaged the suit property with Nungambakkam Saswatha Dhana Rakshaka Nidhi Limited for a sum of Rs.2,300/- to settle the loan availed from Adhi Lakshmi Ammal. The mortgage was closed by the amount paid by the 1st defendant out of his self earnings.
6.4. Again in the year 1969, the 1st defendant and his wife borrowed another sum of Rs.3,000/- from the said Nidhi Limited and performed the elder daughter's marriage viz., the plaintiff, by spending about Rs.32,000/-. The loan was also repaid by the 1st defendant out of his own earnings. In the year 1970, the 1st defendant again borrowed loan from various sources and performed the marriage of the 4th defendant, along with his gratuity money. During the year 1973-74, the 1st defendant put up an out-house with cement sheet roof out of his own funds for his elder son viz., the 2nd defendant by spending Rs.18,000/-. The 1st defendant also mortgaged the property in the year 1981 and also settled the loan subsequently. He also mortgaged the property for giving medical treatment for his wife and to celebrate the 6th defendant's marriage. All the loans availed by the 1st defendant was discharged by him. The superstructure was put up by the 1st defendant and not by Deivayanai Ammal. The mother-in-law of the 1st defendant viz.,Rukmani Ammal had settled the suit property on 17.05.1953 bequeathing her right and title absolutely in favour of her daughter.
6.5. The allegation that Deivayanai Ammal was given only life interest and vested remainder absolutely in favour of the plaintiff and defendants 2 to 6 is not correct. The plaintiff cannot approbate and reprobate her case. Even if there is any ambiguity in the Settlement Deed, the former portion of the Deed should be construed and taken into account for proper consideration. The former part of the Settlement Deed clearly shows that the right given to the said Deivayanai Ammal is absolute and not a contingent right. Section 14(1)(b) of the Hindu Succession Act is also relevant by way of legal submission without prejudice to other contentions.
6.6. The said Deivayanai Ammal executed a Will dated 11.11.1990 bequeathing her right, title, interest in the suit property in favour of the 1st defendant. The said Will was probated on 28.07.1995 by the Hon'ble High Court in O.P.No.115 of 1994. Hence, as per the Will executed by Deivayanai Ammal, the 1st defendant alone has become the absolute owner of the suit property. In fact, the plaintiff contested the O.P. By filing caveat and subsequently, did not proceed with the case and ultimately, the caveat filed by her was discharged by the High Court on 24.07.1995 and the O.P. was ordered on 28.07.1995. Again the plaintiff filed an application in A.No.5108 of 1995 to revoke the probate. The said application was also dismissed by High Court. The Will executed by Deivayanai Ammal is true and genuine, which is also confirmed by High Court in O.P.No.115 of 1994. After the dismissal of the application in A.No.5108 of 1995 on 05.08.1996, the plaintiff has no locus standi to have a partition of the property.
6.7. The allegation that the defendants are collecting huge income by letting out the suit property without giving any share to the plaintiff is not true. The 1st defendant did not get the signature of Deivayanai Ammal and mortgage the property during her invalid period. The deceased Deivayanai Ammal had mortgaged the suit property with the Nungambakkam Saswatha Dhana Rakshaka Nidhi Limited and executed a Mortgage Deed. The 6th defendant also accompanied her mother. The plaintiff is not entitled to any share in the suit property much less one-sixth share. There is no cause of action for filing the suit. In these circumstances, the 1st defendant prayed for dismissal of the suit.
7. The defendants 2 & 3 adopted the written statement filed by the 1st defendant.
8. The defendants 5 & 6 filed a written statement stating that they are not interested in pursuing the suit and that they are not supporting the case of the plaintiff. Hence, they prayed for dismissal of the suit.
9. Before the trial court, on the side of the plaintiff, 2 witnesses were examined and 9 documents viz., Exs.A1 to A9 were marked. On the side of the defendants, the 3rd defendant was examined as D.W.1 and 10 documents Exs.B1 to B10 were marked. The trial court, after taking into consideration the oral and documentary evidences let in by the parties, dismissed the suit. Aggrieved over the judgment and decree of the trial Court, the plaintiff has filed the above appeal.
10. Heard Mr.S.Saravanan, learned counsel appearing for the appellants, Mr.C.Uma Shankar, learned counsel appearing for the respondents 1 & 2, Mr.B.P.Vinoth, learned counsel appearing for the respondents 3 & 5 and Mr.S.Deepak Ram, learned counsel appearing for the 4th respondent.
11. Mr.S.Saravanan, learned counsel appearing for the appellants submitted that the recitals in Ex.B1 Settlement Deed dated 17.03.1953 would establish that Rukmani Ammal had executed the said Settlement Deed in favour of Deivayanai Ammal, giving her life interest and absolute right to the children of Deivayanai Ammal and therefore, the plaintiff is entitled to one-sixth share in the suit property and that the Will dated 11.11.1990 executed by her in favour of the 1st defendant is invalid. The learned counsel further submitted that the trial court had not considered the construction of Ex.B1 Settlement Deed in a proper manner.
11.1. In support of his contentions the learned counsel appearing for the appellants relied upon the following judgments:
(i) CDJ 2007 SC 1409 [Kanwarjit Singh Dhillon Vs. Hardyal Singh Dhillon & others] wherein the Apex Court held as follows:
“...
10. The High Court by the impugned order, relying on a decision of this Court in the case of Smt.Rukmani Devi and Ors. v. Narendra Lal Gupta, [1985] 1 SCC 144 affirmed the order of the civil court by holding that a probate granted by a competent probate court was conclusive of the validity of the Will of late S.Kirpal Singh until it was revoked and no evidence could be admitted to impeach the said Will except in a proceeding taken for revoking the probate. According to the High Court, a decision of the probate court would be a judgment in rem which would not only be binding on the parties to the probate proceeding but would be binding on the whole world. Upon the aforesaid finding, the High Court had affirmed the order of the civil court holding that the suit must be dismissed in view of the fact that the probate court had already granted probate in respect of the Will executed by late S.Kirpal Singh relating to the suit properties. We are not in a position to agree with the views expressed by the High Court in the impugned order nor are we in agreement with the order passed by the civil court. As noted herein earlier, the suit for declaration of title and injunction has been filed by the appellant inter alia on the allegations that the suit properties are joint family properties of the HUF of which the appellant and his two brothers Hardyal Singh Dhillon and Harbans Singh Dhillon, mother Surjit Kaur and unmarried daughter Amarjit Kaur are members. It has also been claimed by the appellant in the suit that by utilizing the income from the ancestral agricultural land, various properties including the suit properties were acquired. Such being the allegations made in the plaint which can only be decided on trial after parties are permitted to adduce evidence in respect of their respective claims, it is difficult to hold that only because probate of the Will of late S.Kirpal Singh has been granted, the suit for title and injunction must be held to be not maintainable in law. It is well settled law that the functions of a probate court are to see that the Will executed by the testator was actually executed by him in a sound disposing state of mind without coercion or undue influence and the same was duly attested. It was, therefore, not competent for the probate court to determine whether late S.Kirpal Singh had or had not the authority to dispose of the suit properties which he purported to have bequeathed by his Will. The probate court is also not competent to determine the question of title to the suit properties nor will it go into the question whether the suit properties bequeathed by the Will were joint ancestral properties or acquired properties of the testator.
11. In Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors., [1993] 2 SCC 507, this Court while upholding the above views and following the earlier decisions of this Court as well as of other High Courts in India observed in paragraph 15 at page 515 which runs as under :-
"In Ishwardeo Narain Singh v. Smt. Kamta Devi this Court held that the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate court. Therefore, the only issue in a probate proceeding relates to the genuineness and due execution of the will and the court itself is under duty to determine it and perverse the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus, it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself". (Emphasis supplied).
That being the position and in view of the nature of allegations made in the plaint, we do not find any reason as to how the High Court as well as the civil court could come to a conclusion that after the probate of the Will executed by late S.Kirpal Singh was granted, the suit for declaration for title and injunction on the above allegation could not be said to be maintainable in law. The High Court also while holding that the suit was not maintainable, in view of the probate granted of the Will of late S.Kirpal Singh had relied on a decision of this Court, as noted herein earlier, in the case of Rukmani Devi (supra). We are not in a position to agree with the High Court that this decision could at all be applicable in the facts and circumstances of the present case. A plain reading of this decision would not show that after the grant of probate by a competent court, the suit for title and permanent injunction cannot be said to be maintainable in law. What this Court held in that decision is that once a probate is granted by a competent court, it would become conclusive of the validity of the Will itself, but, that cannot be decisive whether the probate court would also decide the title of the testator in the suit properties which, in our view, can only be decided by the civil court on evidence. It is true that the probate of the Will granted by the competent probate court would be admitted into evidence that may be taken into consideration by the civil court while deciding the suit for title but grant of probate cannot be decisive for declaration of title and injunction whether at all the testator had any title to the suit properties or not.”
(ii) CDJ 2004 SC 199 [F.M.Devaru Ganapati Bhat Vs. Prabhakar Ganapathi Bhat] wherein the Hon'ble Supreme Court held as follows:
“...
5. The execution of the gift deed is not in question. The validity of the gift deed is also not in question except to the extent indicated hereinbefore.
6. The rule of construction is well settled that the intention of the executor of a document is to be ascertained after considering all the words in their ordinary natural sense. The document is required to be read as a whole to ascertain the intention of the executant. It is also necessary to take into account the circumstances under which any particular words may have been used.
...
9.The answer to the second question hinges upon the interpretation of Sections 13 and 20 of the Act, which read as under :
"13. Transfer for benefit of unborn personWhere, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property.
20. When unborn person acquires vested interest on transfer for his benefit.Where, on a transfer of property, an interest therein is created for the benefit of a person not then living, he acquires upon his birth, unless a contrary intention appears from the terms of the transfer, a vested interest, although he may not be entitled to the enjoyment thereof immediately on his birth."”
(iii) CDJ 2012 SC 061 [Jagan Singh (Dead) through LRs. Vs.
Dhanwanti & another] wherein the Apex Court held as follows: “...
10. (i) In the present case the facts are very clear. Umrao Singh was owner of the concerned land. He made a will, it was duly attested by two persons, and it was registered as required by section 169 (3) of the U.P. Act.
Under that will he created a restricted interest in favour of respondent No.1 in plot No. 140-8-10-19. This cannot be said to be impermissible under section 169 (1) of the U.P. Act. It is nobody's case that section 169 (2) thereof applied to the present case.
(ii)Section 14 of the Hindu Succession Act, 1956 undoubtedly declares in Sub-section (1) thereof that a property of a female Hindu is her absolute property, but it creates an exception in Sub-section (2) which provides that Sub-section (1) will not apply to any property which is given away by instruments such as by way of a gift or under a will. In the present case Umrao Singh had made a will, and under that he had created a restricted estate in favour of respondent No.1 which was permissible under this section 14 (2).
Section 14 of the Hindu Succession Act, 1956 reads as follows:-
"14. Property of a female Hindu to be her absolute property.- (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation - In this sub-section, `property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance of arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other 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 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."
...
12. In Amar Singh (supra) this Court explained an earlier judgment Ramji Dixit Vs. Bhirgunath reported in AIR 1968 SC 1058. In that matter after the death of the owner, the land had devolved upon his wife as a Hindu widow's estate. A dispute arose about the alienations effected by her, and it was held that undoubtedly she had the right to alienate. But as can be seen, in that matter the estate had devolved by inheritance, and not by will. That is why in para 8 of Amar Singh (Supra) this Court specifically observed that the facts in Ramji Dixit were quite distinguishable. Besides, as held by this Court in Mst. Karmi Vs. Amru reported in AIR 1971 SC 745, a widow who succeeds to the property of her deceased husband on the strength of his will, cannot claim any right other than those conferred by the will. Thus life estate given to her under a will cannot become an absolute estate under the provisions of Section 14 (2) of the Hindu Succession Act, 1956.”
(iv) CDJ 2013 SC 218 [Shivdev Kaur (D) by LRs. & others Vs.
R.S.Grewal] wherein the Apex Court held as follows: “...
7. It is evident from the aforesaid part of the Will that only a life interest had been created in favour of the appellant by that Will. Therefore, the sole question for our consideration remains as to whether such limited right got converted into absolute right on commencement of the Act 1956.
8. Section 14 of the Act 1956 reads as under:
“14. Property of a female Hindu to be her absolute property.
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
(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.” (Emphasis added)
9. The aforesaid statutory provisions provide for conversion of life interest into absolute title on commencement of the Act 1956, however, sub-section (2) carves out an exception to the same as it provides that such right would not be conferred where a property is acquired by a Hindu female by way of gift or under a Will or any other instrument prescribing a restricted estate in that property.
10. In Mst.Karmi v. Amru & Ors., AIR 1971 SC 745, a similar issue was considered by this Court and after examining the contents of the Will came to the conclusion that where a woman succeeded some property on the strength of a Will, she cannot claim any right in those properties over and above what was given to her under that Will. The life estate given to her under the Will would not become an absolute estate under the provisions of the Act 1956 and, thus, such a Hindu female cannot claim any title to the suit property on the basis of the Will executed in her favour. (See also: Navneet Lal @ Rangi v. Gokul & Ors., AIR 1976 SC 794; and Jagan Singh (Dead) Through LRs. v. Dhanwanti & Anr., (2012) 2 SCC 628).
11. In Sadhu Singh v. Gurdwara Sahib Narike & Ors., AIR 2006 SC 3282, this Court again considered the issue, held as under:
“When he thus validly disposes of his property by providing for a limited estate to his heir, the wife or widow has to take it as the estate falls. This restriction on her right so provided, is really respected by the Act. It provides in Section 14(2) of the Act, that in such a case, the widow is bound by the limitation on her right and she cannot claim any higher right by invoking Section 14(1) of the Act. In other words, conferment of a limited estate which is otherwise valid in law is reinforced by this Act by the introduction of Section 14(2) of the Act and excluding the operation of Section 14(1) of the Act, even if that provision is held to be attracted in the case of a succession under the Act. Invocation of Section 14(1) of the Act in the case of a testamentary disposition taking effect after the Act, would make Sections 30 and 14(2) redundant or otiose. It will also make redundant, the expression “property possessed by a female Hindu” occurring in Section 14(1) of the Act. An interpretation that leads to such a result cannot certainly be accepted. Surely, there is nothing in the Act compelling such an interpretation. Sections 14 and 30 both have play. Section 14(1) applies in a case where the female had received the property prior to the Act being entitled to it as a matter of right, even if the right be to a limited estate under the Mitakshara law or the right to maintenance. (Emphasis added)
12. Shri Verma, learned counsel for the appellant placed a very heavy reliance on the judgment of this Court in Balwant Kaur & Anr. v. Chanan Singh & Ors., AIR 2000 SC 1908, contending that a destitute Hindu daughter if acquires such a right, it would stand crystallised in absolute title. There is a complete fallacy in his argument. In the said case, this Court held that all the clauses of the Will must be read together to find out the intention of the testator. The court held:
“…This is obviously on the principle that the last clause represents the latest intention of the testator. It is true that in the earlier part of the Will, the testator has stated that his daughter Balwant Kaur shall be the heir, owner and title- holder of his entire remaining moveable and immovable property but in the later part of the same Will he has clearly stated that on the death of Balwant Kaur, the brothers of the testator shall be the heirs of the property. This clearly shows that the recitals in the later part of the Will would operate and make Appellant 1 only a limited estate-holder in the property bequeathed to her.” (Emphasis added)”
(v) CDJ 2013 MHC 1600 [T.K.Thiyagarajan & others Vs.
Lakshmana Chettiar & others] wherein this Court held as follows: “...
17.Therefore from the judgment passed in O.S.No.657/1955 dated 30.01.1960 it is clear that the provisions of Hindu Succession Act was taken into consideration not only by the trial court but also by the first appellate court. In O.S.No.657/1955, the trial court had clearly held that Rajammal is entitled only to a right of residence during her lifetime and her right would not enlarged into an absolute right under the provisions of Hindu Succession Act. The trial court passed a decree in favour of the plaintiffs therein declaring that the first defendant therein, Rajammal has no more than a life interest in the suit property without any power of alienation and the plaintiffs therein are not reminder-men thereof and the second defendant therein has got no interest whatsoever in it and the transfer of registry in the Municipal House Property Tax Register in the name of the second defendant will not in any way affect the plaintiffs right in the suit property. Therefore from the above, it is clear that the trial court while deciding the suit in O.S.No.657/1955 had taken into consideration the provisions of Hindu Succession Act, 1956 and therefore the appellants cannot now contend that since the suit was filed in the year 1955 the provisions of Hindu Succession Act was not taken into consideration.”
12. Countering the submissions made by the learned counsel for the appellants, Mr.C.Uma Shankar, learned counsel appearing for the respondents 1 & 2 submitted that the construction of Ex.B1 Settlement Deed dated 17.03.1953 would clearly establish that Deivayanai Ammal was given absolute right by the settlor viz., Rukmani Ammal. Further, the learned counsel submitted that so far as the Settlement Deed is concerned, the 1st part of the document would prevail over the latter. Further, the learned counsel submitted that even assuming that Deivayanai Ammal was given only life interest, Ex.B1 Settlement Deed dated 17.03.1953, after the coming into force of the Hindu Succession Act in the year 1956, under Section 14, any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner.
12.1. In support of his contentions the learned counsel for the respondents 1 & 2 relied upon the following judgments:
(i) AIR 1977 Supreme Court 1944 [Vaddeboyina Tulasamma and others Vs. Vaddeboyina Sesha Reddi (dead) by L.Rs.,] wherein the Apex Court held as follows:
“...
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 S. 14(1) and (2) of the Act of 1956. These conclusions may be stated thus:
(1) The Hindu female's right to maintenance is not an empty 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 doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights.
(2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends, sought to be achieved by this long needed legislation.
(3) Sub-section (2) of 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 provision.
(4) 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 first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise preexisting 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, 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 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- 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 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).
(6) The words "possessed by" used by the Legislature in S. 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 Section 14(1) she would get absolute interest. in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser with- out any right or title.
(7) That the words "restricted estate" used in S. 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.”
(ii) AIR 1991 Madhya Pradesh 18 [Dharamwati Bai (deceased by L.Rs.) and others Vs. Shiv Singh (deceased by L.Rs.) and others] wherein the Madhya Pradesh High Court held as follows:
“...
8. Learned Counsel for respondent Harish Chandra has seriously contended Janki Bai's entitlement under Section 14(1) of the Hindu Succession Act, for short, 'H. S. Act', relying on Ex. P/1 and he has also cited case law. In my view, however, the crucial fact is that mutation entries and finding in civil suit No. 26 of 1962 about Janki Bai's possession of suit property in 1956, when the Act had come into force, being unimpeachable, respondent's contest must fail. How she came into possession is not material as held in Gulwant Kaur (AIR 1987 SC 2251) (supra) and other cases because her possession in terms of explanation to Section 14(1)would be deemed as possession in exercise of her "preexisting right" to maintenance on the death of her husband Yeshwant Rao in 1924. The decision of Council of Regency was rendered on 17- 11-1920 but she had acquired possession of suit property prior to that as per mutation entries. However, I also do not think if there is anything to be read in Ex. P/1 as would suggest that her claim to maintenance was settled only thereunder and she was deprived of possession of the suit property thereunder. In that order, at para 1, is the recital that Janki Bai shall be paid for lifetime Rs. 150/- per month, but the cause for that is also mentioned. That would be paid to her by the Finance Department, it is stated, as interest on deposits. In her evidence in Suit No. 25 of 1962, further clarification can be read. She deposed that she was to be paid Rs, 180/- per month because Rs. 50,000/ - was in deposit at Bhopal. Counsel's reliance on Kothi Satyanarayana AIR 1987 SC 363 is evidently inappropriate as that deals with Sub-section (2) of Section 14 which is not the case here. Indeed, nothing in Ex. P/2 suggests that the suit property had been given to her thereunder and that is also not the case set up in the plaint. Noroini Devi AIR 1970 SC2198 was also a case of Section 14(2) and as such, no assistance can be derived by the respondent from that decision, for the same reason.
Relying on G. Krishan Das, AIR 1978 SC 361, counsel submitted that the widow claiming absolute estate in any property in terms of Section 14(1) is to be placed in possession thereof with the specific direction that it was so done to provide for her maintenance. I do not think if that is the ratio or holding of the decision though that certainly is stated as the factual position obtaining in that case. The scope and ambit of Section 14(1) has been clearly explained and amplified in Gulwant Kaur (AIR 1987 SC 2251) (supra) and other cases above referred and, in my view, it is not the law that the widow has to prove any specific direction and of her acquisition of possession on the basis thereof. It rather appears clear to me that to overcome the effect of the change in law in 1956, the father and son (plaintiff Shiv Singh of the instant case and plaintiff Bapu Saheb of Civil Suit No. 25 of 1962) engineered the device manifested in the family settlement executed by them exclusively and by name also, on 14-2-1957. In that document, they took special care to mention that Janki Bai would have no interest in the suit property and that property under the settlement would be regarded as of Shiv Singh's ownership because Janki Bai was to be paid Rs. 150/ - per month for her lifetime under the order of the Regency Council. Provision was also made for her residence separately. What is necessary to be underscored in this context is the fact that, unfortunately, neither in the family settlement (Ex. P/1) nor in the Regency Council's order (Ex.P/2). It is noted that provisions for Janki Bai's maintenance had not been made otherwise earlier in 1924 on her husband's death. In any case being executed as late as in 1957, it could hardly affect the right already vested in Janki Bai.”
(iii) AIR 1960 Supreme Court 953 [Sahebzada Mohammad Kamgarh Shah Vs. Jagdish Chandra Deo Dhabal Deb and others] wherein the Hon'ble Supreme Court held as follows:
“...
13. The correctness of these principles is too well established by authorities to justify any detailed discussion. The task being to ascertain the intention of the parties, the cases have laid down that that intention has to be gathered by the words used by the parties themselves. In doing so the parties must be presumed to have used the words in their strict grammatical sense. If and when the parties have first expressed themselves in one way and then go on saying something, which is irreconcilable with what has gone before, the courts have evolved the principle on the theory that what once had been granted cannot next be taken away, that the clear disposition by an earlier clause will not be allowed to be out down by later clause. Where there is ambiguity it is the duty of the Court to look at all the parts of the document to ascertain what was really intended by the parties. But even here the rule has to be borne in mind that the document being the grantor's document it has to be interpreted strictly against him and in favour of the grantee.”
13. On a careful consideration of the materials available on record, the submissions made by the learned counsel on either side and also the judgments relied upon by the learned counsel on either side, the following points arise for consideration in this appeal:
(i) Whether the construction of Ex.B1 Settlement Deed dated 17.03.1953 would establish that the plaintiff's mother Deivayanai Ammal was given only life interest in the suit property and not absolute right?
(ii) Whether the suit property settled in favour of Deivayanai Ammal under Ex.B1 Settlement Deed dated 17.03.1953 would enlarge into her absolute property after the coming into force of the Hindu Succession Act, 1956?
14. There is no dispute with regard to the relationship between the parties. The plaintiff and the defendants 4 to 6 are the daughters of the 1st defendant and Deivayanai Ammal. The defendants 2 & 3 are the sons of the 1st defendant and Deivayanai Ammal. One Rukmani Ammal is the mother of Deivayanai Ammal. The said Rukmani Ammal settled the suit property under Ex.B1 Settlement Deed dated 17.03.1953 in favour of Deivayanai Ammal. The said Deivayanai Ammal had died on 18.12.1990. During her life time, she executed a Will dated 11.11.1990 in favour of her husband, the 1st defendant, bequeathing the suit property. It is not in dispute that the Will dated 11.11.1990 executed by Deivayanai Ammal in favour of the 1st defendant was probated by this Court in O.P.No.115 of 1994, by order dated 28.07.1995. It is also not in dispute that the plaintiff filed caveat and subsequently, did not proceed with the case and ultimately, the caveat filed by the plaintiff was discharged by this Court on 24.07.1995 and the O.P., was ordered on 28.07.1995. Again the plaintiff filed an application in A.No.5108 of 1995 to revoke the probate, which was also dismissed by this Court on 05.08.1996. Therefore, so far as the Will dated 11.11.1990 is concerned, though the plaintiff had contended that it is not a true and genuine Will, that issue cannot be gone into in this appeal for the reason that this Court had already probated the Will in O.P.No.115 of 1994 and the same has become final. The plaintiff contended that under Ex.B1 Settlement Deed dated 17.03.1953, the settlee was given only life interest and absolute right was given to her children. However, the defendants contended that absolute right was given to Deivayanai Ammal under Ex.B1 Settlement Deed. In these circumstances, it would be appropriate to extract Ex.B1 Settlement Deed dated 17.03.1953, which reads as follows:
gp/rh/M/1 17/03/53 bja;thid mk;khs; thjp kw;Wk; 2 Kjy; 6 gpujpthjpfs; bgaupy; Uf;kzp mk;khs; vGjpf; bfhLj;j brl;oy;bkz;L gj;jpuk;/ 1953-k; tUc&k; khu;r;R khjk; 17-k; njjp brd;idg;gl;lzj;ijr;nrh;e;j E';fk;ghf;fk; ru;kh eha;f;fd; bjUtpy; 54-B vz; tPl;oypUf;Fk; tp!;tgpUk;kFyk; rptkjk; Foj;jdk; fhyk; brd;w upc&Pnfrthr;rhup Fkhuj;jpa[k; K.jpUeht[f;fuR Mr;rhupghu;iaa[khd bja;thahid mk;khSf;F nkw;go E';fk;ghf;fk; ru;kh eha;f;fd; bjUtpy; 54-B vz; tPl;oypUf;Fk; tp!;tgpUk;kFyk; rptkjk; Foj;jdk; fhyk; brd;w upc&Pnfrthr;rhup ghu;ita[k; nkw;go bja;tahjd mk;khSf;F jhahUkhd Uf;kzp mk;khs; vGjpf; bfhLj;j fhypkid brl;oy;bkz;l; gj;jpuk; vd;dbtd;why; ,jdoapy; bc&oa{ypy; tptukhff; fz;oUf;fpwJk; vdf;Fr; brhe;jkha[k; 1924-k; njjp etk;gh; khjk; 14-k; njjp gHdp Mr;rhup tifauhf;fsplkpUe;J tpf;fpiuak; bgw;W mJ Kjy; ehsJ njjp tiuapy; vd; RthjPdj;jpYk; mDgtj;jpYk; ru;t Rje;jpuj;JlDk; Mz;L mDgtpj;J tUfpwJkhdJkhd fhypkid U:gha; 1500/00 (U:gha; Mapuj;jp IE}W) bgUkhd fhypkidia vdf;F Mz; re;jjp ,y;yhikahYk; vdf;F tpUj;jhu;tpakha; bfhz;L tUtjhYk; vd;Dila $Ptfhyj;jpnyna moapy; fz;l brhj;J tpc&akha; xU Mjut[ Vw;ghL bra;J tplhky; eyk; vd;W njhd;Wtjhy; moapy; fz;l brhj;ij ehd; ehsJ njjpapy; cdf;Fk; cd;Dila FHe;ijfs; cgnahfj;Jf;Fk; mDgtpf;Fk; bghUl;L cd; ngupy; ehd; ehsJ njjpapy; ,e;j brl;oy;bkz;l; gj;jpuk; (Settlement deed) vGjp up$p!;lh; bra;J bfhLj;Jtpl;nld;/ moapy; nkw;go bc&oa{ypy; fz;oUf;Fk; brhj;ija[k; ehd; ehsJ njjpapy; cd;Dila RthjPdj;jpy; xg;g[tpj;Jtpl;nld;/ brhj;ij ifg;gw;wp jhdhjp tpdpa tpf;fpiua';fSf;F nahf;fpakha; g[j;jpu bghsj;jpu guk;giuakha;
_yjU ghc&hzjpfSf;F cwpj;jha; ru;t Rje;jpuj;JlDk; Mz;L mDgtpj;Jf; bfhs;sf;fltPu;ut[k;/ moapy; fz;l brhj;ij ehd; th';fpa njjp Kjy; ehsJ tiuapy; ntW vt;tplj;jpYk; bfhJit. fpiuak; jhdk; bkapd;odd;R rhu;r;R nfhu;l;L ml;lhr;Rbkz;l; kw;w vt;tpj j!;jhf;fSf;Fk; cs;gLj;jtpy;iy vd;W cWjp brhy;yp ,e;j brl;oy;bkz;l; gj;jpuk; vGjpf; bfhLj;jpUf;fpnwd;/ ehsJ njjp Kjy; cd; ngupy; gl;lht[k; bra;J bfhLj;J tpl;nld;/ ,dp ePa[k; cd; thu;RfSk; ru;t Rje;jpuj;JlDk; Mz;L mDgtpj;Jf; bfhs;syhk;/ ,dp ,e;j brhj;ij ck;kpltrk; xg;g[tpj;J tpl;nld;/ ,e;j brl;oy;bkz;l; gj;jpuj;Jf;F (nc) vd; ngupy; 1924-k; njjp etk;gu; khjk; 14-k; njjp gpwe;jpUf;Fk; tpf;fpiua gj;jpuj;ija[k; ehd; 1951-k; njjp etk;gu; khjk; 24-k; njjp E';fk;ghf;fk; jp m/c&z;Kfk; brl;oahuplj;jpy; moapy; fz;l brhj;ij mlkhdk; itj;J th';fpd <l;Lf;flid mtUf;F ehd; 9/8/1952-y; bfhLj;J igry; bra;J mtuhy; uj;J bra;J bfhLf;fg;gl;l gj;jpuj;ija[k; Town Planning Arbitrator mtu;fshy; bfhLf;fg;gl rl;ogpnfl;ila[k; K:yhjhukhf bfhLj;Jtpl;nld;/ bgw;Wf;bfhz;L brhj;ij ru;t Rje;jpuj;JlDk; Mz;L mDgtpj;Jf; bfhs;sf; fltPuhft[k;/ ,g;gof;F vd; kndhuh$papy; rk;kjpj;J vGjpf; bfhLj;j fhypkid brl;oy;bkz;l; gj;jpuk/; fhyp epyj;jpy; tPLfl;l ntQqkhdhy; brhj;ij mlkhdk;. bra;ayhk;/ Mdhy; cdf;Fg; gpwF cd; re;jjpfs; ru;t Rje;jpukhf Mz;L mDgtpf;f cupika[z;L/ c&poa{y;
brhj;Jtpguk;
kjuh!; br';fy;gl;L o!;oupf;l; jpahfuhaefu; rg;up$p!;l;nuc&d; o!;oupf;l;ilr; nru;e;j E';fk;ghf;fk; Vup cs;thapy; cs;s epyj;jpw;F R.S.No.591/3 and 59110 part f;F bjw;F R.S.No.591/4 f;F nkw;F nuhl;Lf;F tlf;F. R.S.No.590/2 and 590/7 part f;F fpHf;F ,jd; kj;jpapy; cs;s fhypkid fPHz;il gf;fk; nkyz;ilg;gf;fd; bjd;tly; mo 90. tltz;ilg;gf;fk; fpHf;F nkw;F mo 45. bjd;dz;ilg; gf;fk; fpHnky; mo 44 ,jw;F TLjy; (ground) khd 1-FHp (sq.ft) 1613 cs;s fhypkidf;F R.S.No.591/6 fbyf;lu; ru;ogpnfl; vz; 688/ ,jpy; mo';fpa fhypkid brhj;jpd; kjpg;g[ U:gha; 1500 00 (U:gha; Mapuj;jp IE}W)/ fPuy;--(Uf;kzp mk;khs;) rhl;rpfs;
1/ Xk;-- (K.Thirumaukkarasu, (nc), 15, Nungambakkam) 2. Sd/-
Writer of this Document Sd/- (13, New Tank Street, Nungambakkam Madras)
15. On a perusal of the 1st portion of the Settlement Deed, it could be seen that the settlor had specifically stated that the settlee viz., Deivayanai Ammal can possess the property and enjoy the property absolutely. In the middle portion also, the settlor has stated that the settlee and her legal heirs can enjoy the property absolutely. In the last portion, she has stated that the settlee can obtain loan by mortgaging the property for constructing a house in the vacant land and after the life time of the settlee, her legal heirs are entitled to enjoy the property. However, I have also perused the original Settlement Deed marked as Ex.B1, wherein, in the last portion of the document, the settlor had struck off the word “tpw;fhky;” in the last portion of the document. It is also useful to extract the relevant portion in the original Settlement Deed, which reads as follows:
“fhyp epyj;jpy; tPL fl;l ntQqkhdhy;
brhj;ij mlkhdk; bra;ayhk;/ Mdhy; tpw;fhky; cdf;Fg; gpwF cd; re;jjpfs; rh;t Rje;jpukhf Mz;L mDgtpf;f chpika[z;L/”
16. On seeing the above recital, it could be seen that the settlor had, knowingly, struck off the word “tpw;fhky;” in the document. In case the settlor had not mentioned the word “tpw;fhky;” and struck off the same in the document, then, one can accept that the settlor might have had an intention to give life interest to Deivayanai Ammal. But when the settlor had written the word “tpw;fhky;” and struck off the said word, it is clear that the intention of the settlor was to give absolute right to the settlee viz., Deivayanai Ammal. By striking off the said word, she had made her mind clear that she is only executing the document absolutely in favour of Deivayanai Ammal. Apart from this, in other places also the settlor had stated that she is giving absolute right to Deivayanai Ammal. Therefore, I am of the view that under Ex.B1 Settlement Deed dated 17.03.1953, Rukmani Ammal had given absolute right to Deivayanai Ammal in respect of the suit property. In these circumstances, the 1st point for consideration is decided in favour of the respondents/defendants.
17. So far as the application of Hindu Succession Act, 1956 is concerned, the property was settled in favour of Deivayanai Ammal under Ex.B1 Settlement Deed dated 17.03.1953. Under Section 14(1) of the Hindu Succession Act, the female's limited interest would automatically be enlarged into an absolute one by force of Section 14 and the restrictions placed, if any, under the document would have to be ignored. Ex.B1 Settlement Deed was executed prior to the coming into force of the Hindu Succession Act, 1956. After the coming into force of the Hindu Succession Act in the year 1956, the suit property settled in favour of Deivayanai Ammal under Ex.B1 Settlement Deed, even if it is construed as life interest in favour of Deivayanai Ammal would automatically be enlarged into absolute one by force of Section 14(1) and the restrictions placed, if any, under the document would have to be ignored.
18. The ratio laid down by the Hon'ble Supreme Court in the judgment reported in AIR 1977 Supreme Court 1944 [Vaddeboyina Tulasamma and others Vs. Vaddeboyina Sesha Reddi (dead) by L.Rs.,] squarely applies to the present case. Hence, the 2nd point for consideration is also decided in favour of the respondents/defendants.
19. Though there is no dispute with regard to the ratio laid down in the judgments relied upon by the learned counsel for the appellants, since the facts and circumstances of the present case are different, they are not applicable.
20. The trial Court, taking into consideration the oral and documentary evidences, had rightly dismissed the suit. I do not find any ground to interfere with the judgment and decree of the trial court. The appeal is liable to be dismissed. Accordingly, the same is dismissed. No costs.
Index : Yes 17.11.2017 Internet : Yes Speaking order va To The III Additional Judge, City Civil Court, Chennai.
M.DURAISWAMY, J.
va
Judgment in A.S.No.1073 of 2009
17.11.2017