IntroductionThe above Title, ‘Isn’t a Hindu Female’s Property, her Absolute Property?’, may appear as a rhetoric question to readers! However, having said that it would be interesting to note that the question is not as cut and dried as it appears and this issue has travelled all the way to the Supreme Court on numerous occasions. Thus, while it is quite easy to understand in theory that right to property is a vested right of a Hindu female under the Hindu Succession Act, it becomes quite difficult to understand its implications given the facts and circumstances of a particular case. The issue is thrown into sharper focus by the seeming dichotomy under sub-sections (1) and (2) of section 14 of the Hindu Succession Act, 1956 (“the Act”), which deals with property of a Hindu female. A recent Supreme Court decision in the case of
Jupudy Pardha Sarathy vs. Pentapati Rama Krishna, Civil Appeal No. 375/2007 (Jupudy’s case) has analysed the position laid down by various judgments on this subject.
Section 14 of the Act The Act governs the position of a Hindu intestate, i.e., one dying without making a valid Will. The Act applies to Hindus, Jains, Sikhs, Buddhists and to any person who is not a Muslim, Christian, Parsi or a Jew. The Act overrides all Hindu customs, traditions and usages and specifies the heirs entitled to such property and the order of preference among them. Section14 which is the crux of the issue needs to be studied closely.
Section14(1) states that any property possessed by a female Hindu, whenever it may be acquired by her, shall be held by her as full owner thereof and not as a limited owner. Thus, the Act lays down in very clear terms that in respect of all property possessed by a Hindu female, she is the full and absolute owner and she does not have a limited/restricted right in the same. The explanation to this sub-section defined the term, “property” to include 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 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. Thus, an extremely wide definition of property has been given under the Act. Property includes all types of property owned by a female Hindu although she may not be in actual, physical or constructive possession of that property – Mangal Singh & Ors vs. Shrimati Rattno, 1967 SCR (3) 454. The critical words used here are “possessed” and “acquired”. The word “possessed” has been used in its widest connotation and it may either be actual or constructive or in any form recognised by law. In the context in which it has been used in section 14(1) it means the state of owning or having in one’s hand or power – Gummalapura Taggina Matada Kotturuswami vs. Setra Veerayya and Ors. (1959) Supp. 1 S.C.R. 968. The use of the words ‘female Hindu’ is very wide in scope and is not restricted only to a ‘wife’ – Vidya (Smt) vs. Nand Ram Alias Asoop Ram, (2001) 1 MLJ 120 SC.
In Deen Dayal & Anr. vs. Rajaram, (1971) 1 SCR 298, it was held that, before any property can be said to be “possessed” by a Hindu woman as provided in section 14(1), two things are necessary: (a) she must have a right to the possession of that property and (b) she must have been in possession of that property either actually or constructively. However, this section cannot make legal what is illegal. Hence, if a female Hindu is in illegal possession of any property, then she cannot validate the same by taking shelter under this section.
Section 14(2) carves out an exception to section14(1) of the Act. It states that nothing contained in sub-section (1) of section 14 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. Thus, if a female Hindu acquires any property under any instrument and the terms of acquisition, as laid down by such instrument, itself provided for a restricted or a limited estate in the property then she would be treated as a limited owner only. In such an event, she cannot have recourse to section 14(1) and contend that she is an absolute owner.
Whether sub-section (1) or (2) of section 14 apply to a particular case depends upon the facts of the case – Seth Badri Pershad vs. Smt. Kanso Devi, (1969) 2 SCC 586. In this decision it was further held that sub-section (2) of section 14 is more in the nature of a proviso or an exception to sub-section (1). It can come into operation only if acquisition in any of the methods indicated therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of the property. It further approved of the observations of the Madras High Court Rangaswami Naicker vs. Chinnammal, AIR 1964 Mad 387 that section14(2) made it clear that the object of section 14 was only to remove the disability on women imposed by law and not to interfere with contracts, grants or decrees etc. by virtue of which a women’s right was restricted.
Factual Matrix of Jupudy’s case
A person had 3 wives and his 1st wife had predeceased him. His 3rd wife had no child and so, under his Will, he left her a house to be enjoyed for her life and after her life it was to go to his son from his 2nd wife. He also left her certain washroom facilities and right to fetch water from the well during her lifetime. All of these were also to devolve on his son after her death. The focussed issue before the Apex Court was whether the right to these properties so bequeathed on the 2nd wife was her absolute property by virtue of section 14(1) or whether it was a limited estate u/s. 14(2) since she was made an owner only for her lifetime?
Decisions on Section14
Several decisions of the Supreme Court have analysed section14(1) and section14(2) in depth. Some of the important ones are discussed below.
R.B.S.S. Munnalal and Others vs. S.S. Rajkumar, AIR 1962 SC 1493
The Supreme Court held that by section14(1) the legislature converted the interest of a Hindu female, which under the customary Hindu law would have been regarded as a limited interest, into an absolute interest and by the Explanation thereto gave to the expression “property” the widest connotation. The Court held that the Act conferred upon Hindu females full rights of inheritance, and swept away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate. She was under the Act regarded as a fresh stock of descent in respect of property possessed by her at the time of her death.
Nirmal Chand vs. Vidya Wanti, (1969) 3 SCC 628
If a lady is entitled to a share in her husband’s properties then the suit properties must be held to have been allotted to her in accordance with section14(1), i.e., as an absolute owner inspite of the fact that the deed in question mentioned that she would have only a life interest in the properties allotted to her share.
Eramma vs. Verrupanna, 1966 (2) SCR 626
The Supreme Court held that mere possession of property by a female does not automatically attract section 14(1) of the Act.
MST. Karmi vs. Amru, AIR 1971 SC 745
A person died leaving behind his wife. His son pre-deceased him. He gave a life-interest through his Will to his Wife. It was held that the life estate given to a widow under the Will of her husband cannot become an absolute estate under the provisions of the Act. Section14(2) would apply to such a situation and it would not become an absolute estate. The female having succeeded to the properties on the basis of her husband’s Will she cannot claim any rights over and above what the Will conferred upon her. This is one of the important decisions which have gone against the tide of conferring absolute ownership on the Hindu female.
V. Tulasamma vs. Sesha Reddi, (1977) 3 CC 99
In this landmark case, the Supreme Court clarified the difference between sub-section (1) and (2) of section 14, thereby restricting the right of a testator to grant a limited life interest in a property to his wife. case involved a compromise decree arising out of decree for maintenance obtained by the widow against her husband’s brother in a case of intestate succession. The compromise allotted properties to her as a limited owner. The Supreme Court held that this was a case where properties were allotted in lieu of maintenance and hence, section14(1) was clearly applicable. Thus, the widow became the absolute owner of these properties.
The Court held that legislative intendment in enacting s/s. (2) was that this subsection should be applicable only to cases where the acquisition of property is made by a Hindu female for the first time without any pre-existing right. Where, however, property is acquired by a Hindu female at a partition or in lieu of her pre-existing right to maintenance, such acquisition would be pursuant to her pre-existing right not be within the scope and ambit of section 14(2) even if the instrument allotting the property prescribes a restricted estate in the property. S/s. (2) must, therefore, be read in the context of s/s. (1) so as to leave as large a scope for operation as possible to s/s. (1) and so read, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any preexisting right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. It further held 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 an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow. Though the widow’s right to maintenance is not a right to property, it is undoubtedly a pre-existing right in the property, i.e. 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.
Smt. Culwant Kaur vs. Mohinder Singh, AIR 1987 SC 2251 / Gurdip Singh vs. Amar Singh 1991 SCC (2) 8
The provisions of section 14(1) of the Act were applied because it was a case where the Hindu female was put in possession of the property expressly in pursuance to and in recognition of the maintenance in her/where the wife acquired property by way of gift from her husband explicitly in lieu of maintenance.
Thota Sesharathamma vs. Thota Manikyamma, (1991) 4 SCC 312
The Apex Court dealt with a life estate granted to a Hindu woman by a Will as a limited owner and the grant was in recognition of pre-existing right. Tulasamma’s decision was followed and section 14(1) was held to apply. The Supreme Court also held that the contrary decision in the case of Mst. Karmi cannot be considered an authority since it was a rather short judgment without adverting to any provisions of section 14(1) or 14(2) of the Act. The judgment neither made any mention of any argument raised in this regard nor there was any mention of the earlier decisions on this issue.
Nazar Singh vs. Jagjit Kaur, (1996) 1 SCC 35 / Santosh vs. Saraswathibai, (2008) 1 SCC 465 / Subhan Rao vs. Parvathi Bai, (2010) 10 SCC 235
Applying Tulasamma’s decision it was held that lands, which were given to a lady by her husband in lieu of her maintenance, were held by her as a full owner thereof and not as a limited owner notwithstanding the several restrictive covenants accompanying the grant. According to the Court, this proposition followed from the words in sub-section (1) of section14, which insofar as is relevant read: “Any property possessed by a female Hindu … shall be held by her as full owner and not as a limited owner.”
Shakuntala Devi vs. Kamla and Others, (2005) 5 SCC 390
A Hindu wife was bequeathed a life interest for maintenance by her husband’s Will with a condition that she would not have power to alienate the same in any manner. As per the Will, after death of the wife, the property was to revert back to his daughter as an absolute owner. It was held that u/s.14(1) a limited right given to the wife under the Will got enlarged to an absolute right in the suit property.
Sadhu Singh vs. Gurdwara Sahib Narike, (2006) 8 SCC 75 / Sharad Subramanyan vs. Soumi Mazumdar (2006) 8 SCC 91
The Supreme Court in these well-considered decisions held that the antecedents of the property, the possession of the property as on the date of the Act and the existence of a right in the female over it, however limited it may be, are the essential ingredients in determining whether subsection (1) of section 14 of the Act would come into play. Any acquisition of possession of property by a female Hindu could not automatically attract section14(1). That depended upon the nature of the right acquired by her. If she took it as an heir under the Act, she took it absolutely. If while getting possession of the property after the Act, under a devise, gift or other transaction, any restriction was placed on her right, the restriction will have play in view of section14(2) of the Act. Therefore, there was nothing in the Act which affected the right of a male Hindu to dispose of his property by providing only a life estate or limited estate for his widow. The Act did not stand in the way of his separate properties being dealt with by him as he deemed fit. His Will could not be challenged as being hit by section 14(1) of the Act. When he validly disposed of his property by providing for a limited estate to his wife, the widow had to take it as the estate fell. This restriction on her right so provided, was really respected by section 14(2) of the Act. Thus, in this case where the widow had no pre-existing right, the limited estate granted to her under her husband’s Will was upheld u/s. 14(2).
Nazar G. Rama Rao vs. T. G. Seshagiri Rao (2008) 12 SCC 392
The Court held that if no issue was framed and also no evidence was led to substantiate the plea that the female was occupying the premises in lieu of maintenance, section 14(1) cannot automatically apply to every case.
Final Verdict in Jupudy’s case
After analysing a host of decisions and the legal principles, the Supreme Court in Jupudy’s case held that the bequest under the Will to the 3rd Wife was in the nature of maintenance even though the express words maintenance were not mentioned in the Will. She was issueless and the husband was duty bound to maintain her. Hence, he gave her the house and access to incidental facilities. Accordingly, section14(1) applied and the limited right stood enlarged into an absolute estate by virtue of a pre-existing right of maintenance. The Court observed that no one disputed the genuineness of the Will and the fact that the 3rd Wife continued to enjoy the said property in lieu of her maintenance and hence, the decision of G. Rama’s case cannot apply here.
Conclusion
Section14(1) is a very important piece of legislation when it comes to ensuring protection of a Hindu female’s rights over property. It ensures that a lady is an absolute owner in respect of her property. However, it is also essential that this is provision is used as a shield and not a sword. Section14(2) ensures that what was originally acquired as a limited owner does not automatically enlarge into absolute ownership. One important principle which emerges from the numerous Court cases is that, applicability of these two sub-sections has to be tested on the facts of each case and there cannot be one straight-jacketed approach to all cases. Due care should be taken in drafting a Will under which a Hindu lady is getting a limited estate to demonstrate that it is in effect a restricted interest and not something in lieu of maintenance.
