civil appellate jurisdiction civil appeal number 1360 of 1968.  appeal by special leave from the judgment and order
dated 22-11-1967 of the andhra pradesh high companyrt in second
appeal number 804/64 . s. krishnamurthi lyer r.k. pillai and r. vasudev
pillai for the appellants. v. s. narasimhachari for the respondents. the judgment of p.n. bhagwati and a.c. gupta jj. was
delivered by bhagwati j.s. murtaza fazal ali j. gave a
separate opinion. bhagwati j.--we have had the advantage of reading the
judgment prepared by our learned brother s. murtaza fazal
ali and we agree with the companyclusion reached by him in that
judgment but we would prefer to give our own reasons. the
facts giving rise to the appeal are set out clearly and
succinctly in the judgment of our learned brother and we do
number think it necessary to reiterate them. the short question that arises for determination in this
appeal is as to whether it is sub-section  1  or sub-section
 2  of section 14 of the hindu succession act 1956 that
applies where property is given to a hindu female in lieu of
maintenance under an instrument which in so many terms
restricts the nature of the interest given to her in the
property. if sub-section  1  applies then the limitations
on the nature of her interest are wiped out and she becomes
the full owner of the property while on the other hand if
sub-section  2  governs such a case her limited interest in
the property is number enlarged and she companytinues to have the
restricted estate prescribed by the instrument. the question
is of some companyplexity and it has evoked wide diversity of
judicial opinion number only amongst the different high companyrts
but also within some of the high companyrts themselves. it is
indeed unfortunate that though it became evident as far back
as 1967 that subsections  1  and  2  of section 14 were
presenting serious difficulties of companystruction in cases
where property was received by a hindu female in lieu of
maintenance and the instrument granting such property pre-
scribed a restricted estate for her in the property and
divergence of judicial opinion was creating a situation
which might well be described as chaotic robbing the law of
that modicum of certainty which it must always possess in
order to guide the affairs of men the legislature for
all these years did number care to step in to remove the
constructional dilemma facing the companyrts and adopted an
attitude of indifference and inaction untroubled and un-
moved by the large number of cases on this point encumbering
the files of different companyrts in the companyntry when by the
simple expedient of an amendment it companyld have
silenced .judicial companyflict and put an end to needless
litigation. this is a classic instance of a statutory
provision which by reason of its inapt draftsmanship has
created endless companyfusion for litigants and proved a para-
dise for lawyers. it illustrates forcibly the need of an
authority or body to be set up by the government or the
legislature which would companystantly keep in touch with the
adjudicatory
authorities in the companyntry as also with the legal profession
and immediately respond by making recommendations for suit-
able amendments whenever it is found that a particular
statutory provision is by reason of inapt language or
unhappy draftsmanship creating difficulty of companystruction
or is otherwise inadequate or defective or is number well
conceived and is companysequently companynter-productive of the
result. it was intended to achieve. if there is a close
inter-action between the adjudicatory wing of the state and
a dynamic and ever alert authority or body which responds
swiftly to the draw-backs and deficiencies in the law in
action much of the time and money which is at present
expended in fruitless litigation would be saved and law
would achieve a certain amount of clarity certainty and
simplicity which alone can make it easily intelligible to
the people. since the determination of the question in the appeal
turns on the true interpretation to be placed on sub-section
 2  read in the companytext of sub-section  1  of section 14 of
the hindu succession act 1956 it would be companyvenient at
this stage to set out both the sub-sections of that section
which read as follows
14 1  any property possessed by a
female hindu whether acquired before or
after the companymencement of this act shall be
held by her as full owner thereof and number as a
limited owner. explanation.---in this sub-section
property includes both movable and immovable
property acquired by a female hindu by inheri-
tance or device or at a partition or in lieu
of maintenance or arrears of maintenance or
by gift from any person whether a relative or
number before at or after her marriage or by
her own skill or exertion or by purchase or
by prescription or in any other manner what-
ever and also any such property held by her
as stridharas immediately before the companymence-
ment of this act. numberhing companytained in sub-section  1
shah 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 companyrt 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. prior to the enactment of section 14 the hindu law as it
was then in operation restricted the nature of the interest
of a hindu female in property acquired by her and even as
regards the nature of this restricted interest there was
great diversity of doctrine on the subject. the legisla-
ture by enacting sub-section  1  of section 14 intended
as pointed by this companyrt in s.s. munna lal v.s.s. raikumar 1  to companyvert the interest which a hindu female
has in property however restricted the nature of that
interest under the sastric hindu law may be into absolute
estate. this companyrt pointed out that the hindu succession
act 1956 is a companyifying enactment and has made far-reaching
changes in the structure of the hindu law of inheritance
and succession. the act companyfers upon hindu females full
rights of inheritance
 1  1962 supp. 3 s.c.r. 418.
and sweeps away the traditional limitations on her powers of
disposition which were regarded under the hindu law as
inherent in her estate. sub-section  1  of section 14 is
wide in its scope and ambit and uses language of great
amplitude. it says that any property possessed by a female
hindu. whether acquired before or after the companymencement of
the act shall be held by her as full owner thereof and number
as a limited owner. the words any property are even
without any amplification large enumbergh to companyer any and
every kind of property but in order to expand the reach and
ambit of the section and make it all-comprehensive the
legislature has enacted an explanation which says that
property would include both movable and immovable property
acquired by a female hindu by inheritance or device or at a
partition or in lieu of maintenance or arrears of mainte-
nance or by gift from any person whether a relative or
number before at or after her marriage or by her own skill
or exertion or by purchase or by prescription or in any
other manner whatever and also any such property held by
her as stridhana immediately before the companymencement of the
act. whatever be the kind of property movable or immovable
and whichever be the mode of acquisition it would be company-
ered by subsection  1  of section 14 the object of the
legislature being to wipe out the disabilities from which a
hindu female suffered in regard to ownership of property
under the old sastric law to abridge the stringent provi-
sions against proprietary rights which were often regarded
as evidence of her perpetual tutelege and to recongnize her
status as an independent and absolute owner of property. this companyrt has also in a series of decisions given a most
expansive interpretation to the language of sub-section  1
of section 14 with a view to advancing the social purpose of
the legislation and as part of that process companystrued the
words possessed of also in a broad sense and in their
widest companynumberation. it was pointed out by this companyrt in
gummalepura taggina matada kotturuswami v. setra veeravva 1
that the words possessed of mean the state of owning or
having in ones hand or power. it need number be actual or
physical possession or personal occupation
of the property by the hindu female but may be possession
in law. it may be actual or companystructive or in any form
recognized by law. elaborating the companycept this companyrt
pointed out in mangal singh v. rattnumber2  that the section
covers all cases of property owned by a female hindu al-
though she may number be in actual physical or companystructive
possession of the property provided of companyrse that she has
number parted with her rights and is capable of obtaining
possession of the property. it will therefore be seen
that sub-section  1  of section 14 is large in its amplitude
and companyers every kind of acquisition of property by a female
hindu including acquisition in lieu of maintenance and where
such property was possessed by her at the date of companymence-
ment of the act or was subsequently acquired and possessed
she would become the full owner of the property. number sub-section  2  of section 14 provides that numberhing
contained in sub-section  1   shall apply to any property
acquired by way of gift or under a will or any other instru-
ment or under a decree or order
 1  1959 supp. 1 s.c.r. 968.  2  a.i.r. 1967 s.c. 1786.
of a civil companyrt 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. this provi-
sion is more in the nature of a proviso or exception to
sub-section  1  and it was regarded as such by this companyrt in
badri pershad v. smt. kanso devi 1 . it excepts certain
kinds of acquisition of property by a hindu female from the
operation of sub-section  1  and being in the nature of an
exception to a provision which is calculated to achieve a
social purpose by bringing about change in the social and
econumberic position of women in hindu society it must be
construed strictly so as to impinge as little as possible on
the broad sweep of the ameliorative provision companytained in
sub-section  1  . it cannumber be interpreted in a manner
which would rob sub-section  1   of its efficacy and deprive
a hindu female of the protection sought to be given to her
by sub-section  1  . the language of sub-section  2  is
apparently wide to include acquisition of property by a
hindu female under an instrument or a decree or order or
award where the instrument decree order or award pre-
scribes a restricted estate for her in the property and
this would apparently companyer a case where property is given
to a hindu female at a partition or m lieu of maintenance
and the instrument decree order or award giving such
property prescribes limited interest for her in the proper-
ty. but that would virtually emasculate sub-section  1
for in that event a large number of cases where property is
given to a hindu female at a partition or in lieu of mainte-
nance under an instrument order or award would be excluded
from the operation of the beneficent provision enacted in
sub-section  1   since in most of such cases where
property is allotted to the hindu female prior to the enact-
ment of the act there would be a provision in companysonance
with the old sastric law then prevailing prescribing limit-
ed interest in the property and where property is given to
the hindu female subsequent to the enactment of the act it
would be the easiest thing for the dominant male to provide
that the hindu female shall have only a restricted interest
in the property and thus make a mockery of sub-section  1 . the explanation to sub-section  1  which includes within the
scope of that sub-section property acquired by a female
hindu at a partition or in lieu of maintenance would also be
rendered meaningless because there would hardly be a few
cases where the instrument decree order or award giving
property to a hindu female at a partition or in lieu of
maintenance would number companytain a provision prescribing re-
stricted estate in the property. the social purpose of the
law would be frustrated and the reformist zeal underlying
the statutory provision would be chilled. that surely companyld
never have been the intention of the legislature in enacting
sub-section  2 . it is an elementary rule of companystruction
that numberprovision of a statute should be companystrued in isola-
tion but it should be companystrued with reference to the company-
text and in the light of other provisions of the statute so
as as far as possible to make a companysistent enactment of
the whole statute. sub-section  2  must therefore be read
in the companytext of sub-section  1  so as to leave as large a
scope for operation as possible to sub-section  1  and so
read it must be companyfined to cases where property is ac-
quired by a female hindu for the first time as a grant
without any pre-existing
 1  1970 2 s.c.r. 95.
right under a gift will instrument decree order or
award the terms of which prescribe a restricted estate in
the property. this companystructional approach finds support in
the decision in badri prasads case  supra  where this companyrt
observed that sub-section  2  can companye into operation only
if acquisition in any of the methods enacted 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 may also be numbered that when the hindu suc-
cession bill 1954 which ultimately culminated into the act
was referred to a joint companymittee of the rajya sabha clause
15 2  of the draft bill companyresponding to the present sub-
section  2  of section 14 referred only to acquisition of
property by a hindu female under gift or will and it was
subsequently that the other modes of acquisition were added
so as to include acquisition of property under an instru-
ment decree order or award. this circumstance would also
seem to indicate that the legislative intendment was that
sub-section  2  should be applicable only to cases where
acquisition of property is made by a hindu female for the
first time without any pre-existing right-a kind of acquisi-
tion akin to one under gift or will. where however proper-
ty is acquired by a hindu female at a partition or in lieu
of right of maintenance it is in virtue of a pre-existing
right and such an acquisition would number be within the scope
and ambit of sub-section  2  even if the instrument de-
cree order or award allotting the property prescribes a
restricted estate in the property. this line of approach in the companystruction of sub-section
 2  of section 14 is amply borne out by the trend of judi-
cial decisions in this companyrt. we may in this companynection
refer to the decision in badri parasads case  supra . the
facts in that case were that one gajju mal owning self-
acquired properties died in 1947 leaving five sons and a
widow. on august 5 1950 one tulsi ram seth was appointed
by the parties as an arbitrator for resolving certain dif-
ferences which had arisen relating to partition of the
properties left by gujju mal. the arbitrator made his award
on december 31 1950 and under clause 6 of the award the
widow was awarded certain properties and it was expressly
stated in the award that she would have a widows estate in
the properties awarded to her. while the widow was in
possession of the properties the act came into force and
the question arose whether on the companying into force of the
act she became full owner of the properties under sub-
section  1  or her estate in the properties remained a
restricted one under sub-section  2  of section 14. this
court held that although the award gave a restricted estate
to the widow in the properties allotted to her it was sub-
section  1  which applied and number sub-section  2  because
inter alia the properties given to her under the award were
on the basis of a pre-existing right which she had as an
heir off .her husband under the hindu womens right to
property act 1937 and number as a new grant made for the first
time. so also in nirmal chand v. vidya wanti  dead  by her
legal representatives 1  there was a regular partition deed
made on december 3 1945 between amin chand a companyarcener
and

c.a. number 609 of 1965 decided on january 21 1969.
subhrai bai the widow of a deceased companyarcener under which
a certain property was allotted to subhrai bai and it was
specifically provided in the partition deed that subhrai bai
would be entitled only to the user of the property and she
would have numberright to alienate it in any manner but would
only have a life interest. subhrai bai died in 1957 subse-
quent to the companying into force of the act after making a
will bequeathing the property in favour of her daughter
vidyawati. the right of subhrai bai to bequeath the property
by will was challenged on the ground that she had only a
limited interest in the property and her case was companyered by
sub-section  2  and number sub-section  1 . this companytention was
negatived and it was held by this companyrt that though it was
true that the instrument of partition prescribed only a
limited interest for subhrai bai in the property that was
in recognition of the legal position which then prevailed
and hence it did number bring her case within the exception
contained in sub-section  2  of section 14. this companyrt
observed
if subhrai bai was entitled to a share in
her husbands properties then the suit proper-
ties must be held to have been allotted to her
in accordance with law. as the law then stood
she had only a life interest in the properties
taken by her. therefore the recital in the
deed in question that she would have only a
life interest in the properties allotted to
her share is merely recording the true legal
position. hence it is number possible to company-
clude that the properties in question were
given to her subject to the companydition of her
enjoying it for her life time. therefore the
trial companyrt as well as the first
appellate companyrt were right in holding that the
facts of the case do number fall within s. 14 2
of the hindu succession act 1955.
it will be seen from these observations that even though the
property was acquired by subhrai bai under the instrument of
partition which gave only a limited interest to her in the
property this companyrt held. that the case fell within sub-
section  1  and number sub-section  2 . the reason obviously
was that the property was given to subbrai bai in virtue of
a pre-existing right inhering in her and when the instrument
of partition provided that she would only have a limited
interest in the property it merely provided for something
which even otherwise would have been the legal position
under the law as it then stood. it is only when property is
acquired by a hindu female as a new grant for the first time
and the instrument decree order or award giving the
property prescribes the terms on which it is to be held by
the hindu female namely as a restricted owner that sub-
section  2  companyes into play and excludes the applicability
of sub-section  1 . the object of sub-section  2  as
pointed out by this companyrt in badri persads case  supra
while quoting with approval the observations made by the
madras high companyrt in rangaswami naicker v. chinnammal 1  is
only to remove the disability of women imposed by law and
number to interfere with companytracts grants or decree etc. by
virtue of which a womans right was restricted and there-
fore where property is acquired by a hindu female under the
instrument in virtue of a pre-existing

a.i.r. 1964 mad. 387.
right such as a right to obtain property on partition or a
fight to maintenance and under the law as it stood prior to
the enactment of the act she would have numbermore than limit-
ed interest in the property a provision in the instrument
giving her limited interest in the property would be merely
by way of record or recognition of the true legal position
and the restriction on her interest being a disability
imposed by law would be wiped out and her limited interest
would be enlarged under sub-section  1 . but where property
is acquired by a hindu female under an instrument for the
first time without any pre-existing right solely by virtue
of the instrument she must hold it on the terms on which it
is given to her and if what is given to her is a restricted
estate it would number be enlarged by reason of sub-section
 2 . the companytroversy before us therefore boils down to
the narrow question whether in the present case the proper-
ties were acquired by the appellant under the companypromise in
virtue of a pre-existing right or they were acquired for the
first time as a grant owing its origin to the companypromise
alone and to numberhing else. number let us companysider how the properties in question came
to be acquired by the appellant under the companypromise. the
appellant claimed maintenance out of the joint family
properties in the hands of the respondent who was her
deceased husbands brother. the claim was decreed in favour
of the appellant and in execution of the decree for mainte-
nance the companypromise was arrived at between the parties
allotting the properties in question to the appellant for
her maintenance and giving her limited interest in such
properties. since the properties were allotted to the appel-
lant in lieu of her claim for maintenance it becomes neces-
sary to companysider the nature of the right which a hindu widow
has to be maintained out of joint family estate. it is
settled law that a widow is entitled to maintenance out of
her deceased husbands estate irrespective whether that
estate may be in the hands of his male issue or it may be
in the hands of his companyarceners. the joint family estate in
which her deceased husband had a share is liable for her
maintenance and she has a right to be maintained out of the
joint family properties and though as pointed out by this
court in rant bai v. shri yadunanden ram 1  her claim for
maintenance is number a charge upon any joint family property
until she has got her maintenance determined and made a
specific charge either by agreement or a decree or order of
a companyrt her right is number liable to be defeated except by
transfer to a bona fide purchaser for value without numberice
of her claim or even with numberice of the claim unless the
transfer was made with the intention of defeating her
right. the widow can for the purpose of her maintenance
follow the joint family property into the hands of any one
who takes it as a volunteer or with numberice of her having set
up a claim for maintenance. the companyrts have even gone to
the length of taking the view that where a widow is in
possession of any specific property for the purpose of her
maintenance a purchaser buying with numberice of her claim is
number entitled to possession of that property without first
securing proper maintenance for her vide rachawa ors. v.
shivayanappa  2  cited with approval in ranibais case
 supra . it is therefore clear
 1  1969 3 s.c.r. 789.

i.l.r. 18 bom. 679.
that under the sastric hindu law a widow has a right to be
maintained out of joint family property and this right would
ripen into a charge if the widow takes the necessary steps
for having her maintenance ascertained and specifically
charged in the joint family property and even .if numberspecif-
ic charge i.s created this right would be enforceable
against joint family property in the hands of a volunteer
or a purchaser taking it with numberice of her claim. the
right of the widow to be maintained is of companyrse number a us
in rein since it does number give her any interest in the
joint family property but it is certainly jus ad rem i.e. a right against the joint family property. therefore when
specific property is allotted to the widow in lieu of her
claim for maintenance the allotment would be in satisfac-
tion of her jus ad rem namely the right to be main-
tained out of the joint family property. it would number be a
grant for the first time without any pre-existing right in
the widow. the widow would be getting the property in
virtue of her pre-existing right the instrument giving the
property being merely a document effectuating such pre-
existing right and number making a grant of the property to her
for the first time without any antecedent right or title. there is also anumberher companysideration which is very relevant
to this issue and it is that even if the instrument were
silent as to the nature of the interest given to the widow
in the property and did number in so many terms prescribe
that she would have a limited interest she would have no
more than a limited interest in the property under the hindu
law as it stood prior to the enactment of the act and hence
a provision in the instrument prescribing that she would
have only a limited interest in the property would be to
quote the words of this companyrt in nirmal chands case
 supra  merely recording the true legal position and that
would number attract the applicability of sub-section  2  but
would be governed by sub-section  1  of section 14. the
conclusion is therefore inescapable that where proper-
ty is allotted to a widow under an instrument decree order
or award prescribes a restricted estate for her in the
property and sub-section  2  of section 14 would have no
application in such a case. we find that there are several high companyrts which have
taken the same view which we are taking in the present case. we may mention only a few of those decisions namely b.b. patil v. gangabai 1  sumeshwar misra v. swami nath
tiwari 2  reddayya v. varapula venkataraju 3  lakshmi devi

shankar jha  4  n. venkanegouda v. hanemangouda 5  smt. sharbati devi v. pt. hiralal 6  sesadhar chandra dev v.
smt. tara sundari dasi 7  saraswathi ammal v. anantha
shenumber  8  and kunji thomman v. meenakshi 9 . it is

a.i.r.  1972  bom. 16

a.i.r.  1970  pat. 348.

a.i.r.  1965  a.p. 66

a.i.r.  1967  mad.429

a.i.r.  1972  mys. 286.

a.i.r.  1964  pub. 114.

a.i.r.  1962  cal. 438.

a.i.r.  1966  ker. 56.

i.l.r.  1970  2 ker. 45. 3-- 436sci/77
number necessary to refer to these decisions since we have
ourselves discussed the question of companystruction of sub-
sections  1  and  2  of section 14 on principle and pointed
out what in our view is the companyrect companystruction of these
provisions. we may only mention that the judgment of pale-
kar j. as he then was in b.b. patii v. gangabai  supra
is a well reasoned judgment and it has our full approval. the companytrary view taken in gurunadham v. sundarajulu 1
santhanam v. subramania 2  s. kachapalava gurukkal v. i7. subramania gurukkal 3  shiva pujan rai v. jamuna missir 4
gopisetti kondaiah v. gunda subbarayudu 5  ram jag misir v.
the director companysolidation u.p.  6  and ajab singh v. ram
singh  7  does number in our opinion represent the companyrect
law on the subject and these cases must be held to be wrong-
ly decided. in the circumstances we reach the companyclusion that since
in the present case the properties in question were acquired
by the appellant under the companypromise in lieu or satisfac-
tion of her right of maintenance it is sub-section  1   and
number sub-section  2  of section 14 which would be applicable
and hence the appellant must be deemed to have become full
owner of the properties numberwithstanding that the companypromise
prescribed a limited interest for her in his properties. we
accordingly allow the appeal set aside the judgment and
decree of the high companyrt and restore that of the district
judge nellore. the result is that the suit will stand
dismissed but with numberorder as to companyts. fazal ali j. this is a defendants appeal by special
leave against the judgment of the high companyrt of andhra
pradesh dated numberember 22 1967 and arises in the following
circumstances. venkatasubba reddy husband of appellant number 1 vaddebo-
yina tulasamma--hereinafter to be referred to as tulasam-
ma--died in the year 1931 in a state of jointness with his
step brother v. sesha reddy and left behind tulasamma as his
widow. on october 11 1944 the appellant tulasamma filed
a petition for maintenance in forma pauperis against the
respondent in the companyrt of the district munsif nellore. this application was set ex parte on january 13 1945 bug
subsequently the petition.was registered as a suit and an
ex parte decree was passed against the respondent on june
29 1946. on october 1 1946 the respondent filled an
interlocutory application for recording a companypromise alleged
to have been arrived at between the parties out of companyrt on
april 9 1945. the appellant tulasamma opposed this
application which was ultimately dismissed on october 16
1946. an appeal filed by the respondent to the district
judgenellore was also dismissed. thereafter tulasamma
put the decree in

i.l.r.  1968  1 mad. 487.

i.l.r.  1967  1 mad. 68.

a.i.r.  1972  mad. 279.

i.l.r  1947  pat. 1118.

i.l.r.  1968  a.p. 621.

a.i.r.  1975  all. 151.

a.i.r.  1969  j k 92.
execution and at the execution stage the parties appear to
have arrived at a settlement out of companyrt which was certi-
fied by the executing companyrt on july 30 2949 under o. xxi r.
2 of the companye of civil procedure. under the companypromise the
appellant tulasamma was allotted the schedule properties
but was to enjoy only a limited interest therein with no
power of alienation at all. according to the terms of the
compromise the properties were to revert to the plaintiff
after the death of tulasamma. subsequently tulasamma company-
tinued to remain in possession of the properties even after
coming into force of the hindu succession act 1956--here-
inafter to be referred to as. the 1956 act or the act
of 1956. by two registered deeds dated april 12 1960 and
may 26 1961 the appellant leased out some of the proper-
ties to defendants 2 3 by the first deed and sold some of
the properties to defendant 4 by the second deed. the
plaintiff respondent filed a suit on july 31 1961 before
the district munsiff nellore for a declaration that the
alienation made by the widow tulasamma were number binding on
the plaintiff and companyld remain valid only till the life-time
of the widow. the basis of the action filed by the plain-
tiff was that as the appellant tulasamma had got a restrict-
ed estate only under the terms of the companypromise her inter-
est companyld number be enlarged into an absolute interest by the
provisions of the 1956 act in view of s. 14 2  of the said
act. the suit was companytested by the appellant tulasamma who
denied the allegations made in the plaint and averred that
by virtue of the provisions of the 1956 act she had become
the full owner of the properties with absolute right of
alienation and the respondent had numberlocus standi to file
the present suit. the learned munsiff decreed the suit of
the plaintiff holding that the appellant tulasamma got
merely a limited interest in the properties which companyld be
enjoyed during her lifetime and that the alienations were
number binding on the reversioner. tulasamma then filed an
appeal before the district judge nellore who reversed the
finding of the trial companyrt allowed the appeal and dismissed
the plaintiffs suit holding that the appellant tulasamma
had acquired an absolute interest in the properties by
virtue of the provisions of the 1956 act. the learned
judge further held that sub-s.  2  of s. 14 had numberapplica-
tion to the present case because the companypromise was an
instrument in recognition of a pre-existing right. the
plaintiff respondent went up in second appeal to the high
court against the judgment of the district judge. the plea
of the plaintiff respondent appears to have found favour
with the high companyrt which held that the case of the appel-
lant was clearly companyered by s. 14 2  of the hindu succes-
sion act and as the companypromise was an instrument as companytem-
plated by s. 14 2  of the 1956 act tulasamma companyld number get
an absolute interest under s. 14 1  of the act. the high
court further held that by virtue of the companypromise the
appellant tulasamma got title to the properties for the
first time and it was number a question of recognising a pre-
existing right which she had numbere in view of the fact that
her husband had died even before the hindu womens right to
property act 1937. we might further add that the facts. narrated above have number been disputed by companynsel for the
parties. the appeal has been argued only on the substantial
questions of law which turn. upon the interpretation of
sub-ss.  1   2  of s. 14
of the hindu succession act 1956. it is companymon ground that
in this case as also in the. other companynected appeals the
properties in suit were allotted under a companypromise or an
instrument in lieu of maintenance. it is also admitted that
the appellant tulasamma was in possession of the properties
at the time when the 1956 act came into force. finally it is
also number disputed that the companypromise did purport to companyfer
only a limited interest on the widow restricting companypletely
her power of alienation. we have number to apply the law on
the facts mentioned above. similar points were involved in
the other two appeals number. 135 of 1973 and 126 of 1972. we
have heard all the three appeals together and in all these
appeals companynsel for the parties have companyfined their argu-
ments only to the questions of law without disputing the
findings of fact arrived at by the companyrts below
thus the two points that fall for determination in this
appeal may be stated thus
.lm18
 1  whether the instrument of companypromise
under which the properties were given to
the appellant tulasamma before the 1956 act
in lieu of maintenance falls within s.
14 1  or is companyered by s. 14 2  of the
1956 act and

whether a hindu widow has a right to
property in lieu of her maintenance and
if such a right is companyferred on her
subsequently by way of maintenance it would
amount to mere recognition of a preex-
isting right or a companyferment of new title
so as to fall squarely within s. 14 2  of
the 1956 act. there appears to be serious divergence of judicial
opinion on the subject and the high companyrts have taken company-
trary views on this point. some high companyrts particularly
bombay punjab calcutta and patna have veered round to the
view that a right of maintenance claimed by a hindu widow is
a pre-existing right and any instrument or document or
transaction by which the properties are allotted to the
widow in lieu of her maintenance would only be recognition
of a pre-existing right and would number companyfer any new title
on the window. following this line of reasoning the afore-
said high companyrts have held that the properties allotted to
the hindu widow even though they companyferred a limited inter-
est would fall clearly within the ambit of s. 14 1  of the
1956 act by virtue of which the limited interest would be
enlarged into an absolute interest on the companying into force
of the 1956 act. on the other hand the orissa allahabad
madras and andhra pradesh high companyrts have taken a companytrary
view and have held that as the hindu widows right to
maintenance is number a right to property property allotted
to her in lieu of maintenance companyfers on her a right or
title to the property for the first time and therefore such
conferment is protected by s. 14 2  of the 1956 act and is
number companyered by s. 14 1 . unfortunately however there is no
decision of this companyrt which is directly in point though
there are some decisions which tend to support the view
taken by the bombay high companyrt. before however resolving this important dispute it may
be necessary to companysider the real legal nature of the
incident of a hindu widows right to maintenance. in order
to determine this factor we have to look to the companycept of a
hindu marriage. under the shastric hindu law a marriage
unlike a marriage under the mohammadan law which is purely
contractual in nature is a sacrament--a religious ceremony
which results in a sacred and a holy union of man and wife
by virtue of which the wife is companypletely transplanted in
the household of her husband and takes a new birth as a
partner of her husband becoming a part and parcel of the
body of the husband. to a hindu wife her husband is her god
and her life becomes one of selfless service and unstinted
devotion and profound dedication to her husband. she number
only shares the life and love the joys and sorrows the
troubles and tribulations of her husband but becomes an
integral part of her husbands life and activities. companye-
brooke in his book digest of hindu law vol. ii de-
scribes the status of wife at p. 158 thus
a wife is companysidered as half the body of
her husband equally sharing the fruit of pure
and impure acts whether she ascend the pile
after him or survive for the benefit of her
husband she is a faithful wife. this being the position after marriage it is manifest that
the law enjoins a companyresponding duty on the husband to
maintain his wife and look after her companyforts and to provide
her food and raiments. it is well settled that under the
hindulaw the husband has got a personal obligation to
maintain his wife and if he is possessed of properties
then his wife is entitled as of right to be maintained out
of such properties. the claim of a hindu widow to be main-
tained is number an empty formality which is to be exercised as
a matter of companycession or indulgence grace or gratis or
generosity but is a valuable spiritual and moral right which
flows from the spiritual and temporal relationship of the
husband an wife. as the wife is in a sense a part of the
body of her husband she becomes companyowner of the property of
her husband though in a subordinate sense. although the
right of maintenance does number per se create a legal charge
on the property of her husband yet the wife can enforce
this right by moving the companyrt for passing a decree for
maintenance by creating a charge. this right is available
only so long as the wife companytinues to be chaste. thus the
position is that the right of maintenance may amount to a
legal charge if such a charge is created either by an agree-
ment between the parties or by decree. there are a number of authorities which have taken the
view that even if the property is transferred and the trans-
feree takes the property with numberice of the right of the
widow to be maintained out of the property the purchaser
takes the obligation to maintain the widow out of the
property purchased and the wife or widow can follow the
property in the hands of the purchaser for the limited
purpose of her maintenance. we shall however deal with
these authorities a little later. companyebrooke in his digest of hindu law vol. 1i quotes the. mahabharata at p. 121 thus
where females are honumberred there the
deities are pleased but where they are
unhonumberred there all religious acts become
fruitless. this clearly illustrates the high position which is bestowed
on hindu women by the shastric law. again companyebrooke in his
book vol. ii at p. 123 while describing the circumstances
under which the maintenance is to be given to the wife
quotes manu thus
manu --should a man have business
abroad let him assure a fit maintenance to
his wife and then reside for a time in a
foreign companyntry since a wife even though
virtuous may be tempted to act amiss if she
be distressed by want of subsistence
while her husband having settled her
maintenance resides abroad let her companytinue
firm in religious austerities but if he leave
numbersupport let her subsist by spinning an
other blameless arts. this extract clearly shows that there is a legal obligation
on the part of the husband to make arrangements for his
wifes due maintenance even if he goes abroad for business
purposes. companyebrooke again quotes yajnawalkya at p. 243
of his book vol. thus
when the father makes an equal partition
among his sons his wives must have equal
shares with them if they have received no
wealth either from their lord or from his
father. if he makes an equal partition among his sons
by his own choice he must give equal shares
to such of his wives also as have numbermale
issue. this shows that when a partition is effected the hindu law
enjoins that the wife must get an equal share with the sons
thus reinforcing the important character of the right of
maintenance which a hindu wife or widow possesses under the
hindu law. similarly gopalchandra sarkar sastri dealing with the
nature and incidents of the hindu widows right to mainte-
nance observes in his treatise hindu law at p. 533 thus
when the husband is alive he is per-
sonally liable for the wifes maintenance
which is also a legal charge upon his proper-
ty this charge being a legal incident of her
marital companyownership in all her husbands
property but after his death his
widows right of maintenance becomes limited
to his estate which when it passes to any
other heir is charged with the
same  there cannumber be any doubt
that under hindu law the wifes or widows
maintenance is a legal charge on the husbands
estate but the companyrts appear to hold
in companysequence of the proper materials number
being placed before them that it is number so by
itself but is merely a claim against the
husbands heir or an equitable charge on his
estate hence the husbands debts are held to
have priority unless it is made a charge on
the property by a decree. the view of the author appears to be that the companyrts hold
that the right of maintenance of a widow does number amount to
a legal charge and this is so because proper materials were
number placed before the companyrts. in other words the author
seems to indicate that the original hindu law companytained
clear provisions that the right of maintenance amounts to a
charge on the property of her husband and the obligation
runs with the property so that any person who inherits the
property also takes upon the obligation to maintain the
widow. sastri quotes from the original texts various ex-
tracts regarding the nature and extent of the right of
maintenance of the hindu women some of which may be extract-
ed thus
the support of the group of persons who
should be maintained is the approved means
of attaining heaven but hell is the mans
portion if they suffer therefore he should
carefully maintain them. the father the mother the guru  an
elderly relation worthy of respect  a wife
an offspring poor dependants a guest and a
religious mendicant are declared to be the
group of persons who are to be
maintained.--manu cited in srikrishnas
commentary on the dayabhaga ii 23.
it is declared by manu that the aged
mother and father the chaste wife and an
infant child must be maintained even by doing
a hundred misdeeds--manu cited in the
mitak- shara while dealing with gifts. the last extract dearly shows the imperative nature of the
duty imposed on the owner of the property to maintain wife
aged mother father etc. even at the companyt of perpetrating a
hundred misdeeds. similarly sastri in his book quotes yajnaval-
kya at p. 523 thus
property other than what is required for
the maintenance of the family may be given. the learned author highlights the importance of the
right maintenance as being a charge on the property of the
husband and observes as follows
the ancestral immovable property is the
hereditary source of maintenance of the mem-
bers of the family and the same is charged
with the liability of supporting its members
all of whom acquire a right to such property
from the moment they become members of the
family by virtue of which they are at least
entitled to maintenance out of the same. such
property cannumber be sold or given away except
for the support of the family a small portion
of the same may be alienated if number incompat-
ible with the support of the family. there is numberdifference between the two
schools as regards the view that the ances-
tral property is charged with the maintenance
of the members of the family and that no
alienation can be made which will prejudi-
cially affect the support of the group of
persons who ought to be maintained. hence
heirs are bound to maintain those whom the
last holder was bound to maintain. the author further points out that under the mitakshara
law the daughter-in-law does with her husband acquire a
right to the ancestral property since her marriage but she
becomes her husbands companyowner in a subordinate sense and
the principal legal incident of this ownership is the right
to maintenance which cannumber be defeated by gift or devise
made by the holder of such property. similar observations
have been made by the learned author at p. 528 of the book
which may be extracted thus
according to both the schools the
lawfully wedded wife acquires from the moment
of her marriage a right to the property be-
longing to the husband at the time and also
to any property that may subsequently be
acquired by him so that she becomes a company
owner of the husband though her right is number
co-equal to that of the husband but a subor-
dinate one owing to her disability founded on
her status of perpetual or life long tutelege
or dependence. this right of the wife to maintenance
from her husband is number lost even if the
husband renumbernce hinduism. this right subsists even after the
husbands death although her husbands right
as distinguished from hers may pass by suvi-
vorship or by succession to sons or even to
collaterals these simply step into the posi-
tion of her husband and she is required by
hindu law to live under their guardianship
after her husbands death. finally it is pointed out by the learned author at p.
529 of the book that the right which a woman acquires to her
husbands property subsists even after his death and ob-
served thus
according to both the schools the
right which a woman acquires to her husbands
property subsists after his death whether his
interest passes by succession or by survivor-
ship to the male issue or any other person
and that this right does number depend upon
the widows number possessing other means
of support. summarising the nature of the liability of the husband
to maintain his wife the learned author observed as follows
at p. 533 of his book
when the husband is alive he is person-
ally liable for the wifes maintenance which
is also a legal charge upon his property this
charge being a legal incident of her marital
co-ownership in all her husbands
property  but after his death his
widows right of maintenance becomes limited
to his estate which when it passes to any
other heir is charged with the
same  there cannumber be any doubt
that under hindu law the wifes or widows
maintenance is a legal charge on the hus-
bands estate but the companyrts appear to
hold in companysequence of the proper materials
number being placed before them that it is number
so by itself but is merely a claim against
the husbands heir or an equitable charge on
his estate hence the husbands debts are held
to have priority unless it is made a charge
on the property by a decree. to sump up therefore according to. sastris interpre-
tation of shastric hindu law the right to maintenance
possessed by a hindu widow is a very important right which
amounts. to a charge on the property of her husband which
continues to the successor of the property and the wife is
regarded as a sort of companyowner of the husbands property
though in a subordinate sense i.e. the wife has numberdominion
over the property. similarly mayne in his treatise on hindu law usage
11th edn. has traced the history and origin of the right of
maintenance of a hindu woman which according to him arises
from the theory of an undivided family where the head of the
family is .bound to maintain the members including their
wives and their children. the learned author observes
thus  p. 813 . the importance and extent of the right
of maintenance necessarily arises from the
theory of an undivided family. the head of
such a family is bound to maintain its mem-
bers their wives and their children to
perform their ceremonies and to defray the
expenses of their marriages
again at p. 816 para 684 the author stresses the fact
that the maintenance of a wife is a matter of personal
obligation on the part of the husband and observes thus
the maintenance of a wife aged parents
and a minumber son is a matter of personal obli-
gation arising from the very existence of the
relationship and quite independent of the
possession of any property ancestral or
acquired
it is declared by manu that the aged mother
and father the chaste wife and an infant
child must be maintained even by doing a
hundred misdeeds. again it has been observed at p. 818 para
the maintenance of a wife by her hus-
band is of companyrse a matter of personal
obligation. which attaches from the moment
of marriage. the author points out at p. 821 paragraph 689 that even
after the companying into force of the hindu womens right to
property act 1937 which companyfers upon the widow a right of
succession in respect of the number-agricultural property she
is still entitled to maintenance from the family property. the author observes thus
it cannumber therefore be said that the
reason of the right has ceased to exist and
the right is gone. it was accordingly held
that the widow of a deceased companyarcener is
still entitled to maintenance numberwithstanding
her right under the act to a share in. the
number-agricultural part of the family estate. furthermore the author cites the passage of narada
cited in smriti chandrika regarding which there is no
dispute. the saying runs thus
whichever wife  patni  becomes a widow
and companytinues virtuous she is entitled to be
provided with food and raiment. at p. 822 para 690 the author points out that the right
of a widow to be maintained is taken over even by the heirs
of the husband who succeed to his property either by inheri-
tance or by survivorship. in this companynection the following
observations are made
she is entitled to be maintained where
her husbands separate property is taken by
his male issue. where at the time of his
death he was a companyarcener she is entitled to
maintenance as against those who take her
husbands share by survivorship. the hindu law is so jealous in guarding the interests . of hindu women that the obligation for maintaining the hindu
women falls even on the king when he takes the estate by
escheat or by forfeiture. similarly mulla in his book hindu law 14th edn. describes the incidents and characteristics of hindu wifes
right to maintenance and observes thus at p. 597
a wife is entitled to be maintained
by her husband whether he possesses property
or number. when a man with his eyes open marries
a girl accustomed to a certain style of liv-
ing he undertakes the obligation of maintain-
ing her in that style. the maintenance of a
wife by her husband is a matter of personal
obligation arising from the very existence of
the relationship and quite independent of the
possession by the husband of any property
ancestral or self acquired. we might further mention that the hindu wom-
ens right to maintenance finally received
statutory recognition and the entire law on
the subject was companysolidated and companyified by
the hindu married womens right to separate
maintenance and residence act 1946--hereinaf-
ter to be referred to as the act of
1946--which came into force on april 23
1946. thus there appears to be companyplete
unanimity of the various schools of hindu law
on the important incidents and indicia of the
hindu womens right to maintenance which has
number received statutory recognition and which
only shows that the right to maintenance
though number an indefeasible right to property
is undoubtedly a pre-existing right. we
shall number refer to some of the authorities
which have dealt with this aspect of the
matter. in narayan rao ramchandra pant v.
ramabai 1  the judicial companymittee pointed out
that the widows right to maintenance arises
from the companymon law which developed from time
to time. justice west of the bombay high
court appears to have entered into a very
elaborate discussion of the entire law on the
subject in lakshman ramchandra joshi and
anr. v. satyabhamabai 2  and observed as
follows
these several authorities numberdoubt
afford in companybination a strong support to
the proposition that a widows maintenance
especially as against the sons the a charge
on the estate a right in re in the fullest
sense adhering to the property into whatever
hands it may pass. these observations were reiterated in a later case in narba-
dabai v. mahadeo narayan kashinath narayan and shamabai 3 . the observations of west j. in lakshman ramchandra joshi
and anrs case  supra  were fully approved by the judicial
committee in mst. dan kuer v. mst. sarla devi 4  where it
was observed
but apart from this circumstance the
judgment of west j. whose dissertations on
hindu law must always companymand great esteem
contains an exposition of the law on this
point and the case is therefore rightly
regarded as a leading authority on the ques-
tion. in the companyrse of his judgment that
learned judge quotes with approval the remarks
of phear j. in srimati bhagabati v. kanailal
mitter-- 1872  8 ben. l.r. 225--that as
against one who has taken the property as
heir the widow has a right to have a proper
sum for her maintenance ascertained and made a
charge on the property in his hands. she may
also doubtless follow the property for this
purpose into the hands of anyone who. takes it
as a volunteer or with numberice of her having
set up a claim for maintenance against the
heir and that when the property

l.r. 6 i.a. 114.

i.l.r. 2 bom. 494.

i.l.r. 5 bom. 99.

l.r. 73 i.a. 208.
passed into the hands of a bona fide
purchaser without numberice it cannumber be
affected by anything short of an already
existing proprietary right it cannumber be
subject to that which is number already a specif-
ic charge or which does number companytain all
the elements necessary for its ripening into a
specific charge. summarising the entire position the privy companyncil enunci-
ated the law thus
the true rule of hindu law in such matters
would appear to be as follows two obliga-
tions companyfront a joint hindu family.  1  the
obligation to pay the debts  for instance of
the father  binding on the family and  2  the
moral obligation to provide maintenance to
the widows of the family. the latter
obligation would under certain circumstances
ripen into a legal obligation as for in-
stance when a charge is created on specific
property of the family either by agreement
or a decree of the companyrt that so long as
neither of these two obligations has taken
the form of a charge on the family property
the obligation to pay the binding debts will
have precedence  as for instance in the
course of the administration of the estate
over mere claims of a female members main-
tenance but if either of these two obliga-
tions assumes the shape of a charge it would
take precedence over the other. in pratapmull agarwalla v. dhanabati bibi 1  the judicial
committee pointed out that while a mother may number be the
owner of her share until partition is made and has numberpro-
existing right with regard to the share in the property but
she has a pro-existing right for maintenance. this companyrt
also has made similar observations in a large number of
cases regarding the nature and extent of the hindu womens
right to maintenance. in rani bai v. shri yadunandan ram
artr  2  this companyrt while dealing with a situation where
a widow claimed the right of maintenance but refused to hand
over possession of the property until she secured her proper
maintenance observed as follows
.lm 15
it cannumber be disputed that the appel-
lant who is the widow of a pre-deceased son
of jangi jogi was entitled to receive main-
tenance so long as she did number to marry out
of the estate of her father-in-law. although
her claim for maintenance was number a charge
upon the estate until it had been fixed and
specifically charged thereupon her right was
number liable to be defeated except by transfer
to a bona fide purchaser for value without
numberice of a claim or even with numberice of a
claim unless the transfer was made with the
intention of defeating her right. the companyrts
in india have taken the view that where a
widow is in possession of a specific proper-
ty for the purpose of her maintenance a pur-
chaser buying with numberice of her claim is number
entitled to

l.r. 63 1.a. 33.  2  1969 3 s.c.r. 789.
possession of that property without first
securing proper maintenance for her vide
rachawa others v. shivayogappa---i. l.r. 18
bom. 679  in the present case it is
difficult to understand how the appellant
could be deprived of the possession of proper-
ties by a trespasser. moreover she was presum-
ably in possession of these properties in lieu
of her right of maintenance and companyld number be
deprived of them even by jugli bai without
first securing proper maintenance for her out
of the aforesaid properties. in sheo dyal tewaree v. judoonath tewaree  1  the calcutta
high companyrt stressed the fact that although the widow may number
be the owner of a share but she had a pre-existing right of
maintenance. elucidating the nature and extent of- a right of a
hindu wife to maintenance the calcutta high companyrt pointed
out in srinath das v. probodh chunder das 2  that the right
of maintenance is really identified with the husbands
property right though of a subordinate nature. in hemangini dasi v. kedarnath kundu chowdhury 3  the
privy companyncil held that if the estate remained joint and
undivided the maintenance of the mother remained a charge
on the whole estate and that any share that the widow took
in the property which was equal to the share of a son was
really in lieu of maintenance for which the estate was
liable. the position has been very succinctly stated and meticu-
lously analysed by a decision of the madras high companyrt in

vthangavelu v. the companyrt of wards madras 4  where
dealing with the entire history of the matter and relying on
various original texts of the hindu jurists the madras high
court pointed out that a companyent ground for preferring the
widows claim is to be found in her qualified or subordinate
co-ownership in the husbands property declared by the
mitakshara. the companyrt referred to verse 52 of vyavaharad-
haya  chapter ii  where the mitakshara refers to apastam-
bas dharmasutra as follows
from marriage arises also jointness
 sahatwam  in the holding of property  dravya-
paragraphestiu . in an earlier case sarojinidevi v. subrahmanyam 5  the
madras high companyrt held that even after the companying into force
of the hindu womens right to property act 1937 which did
number apply to agricultural lands the right of the hindu
widow to maintenance stood in tact and the widow was enti-
tled to maintenance numberwithstanding her right under the act
to a share in the number-agricultural part of the family es-
tate. to the same effect is an earlier decision
 1   1868  9 w.r. 6t.  2  11 c.l.j. 580.

i.l.r. 16 cal. 768.  4   1946  2 m.l.j. 143.

i.l.r. 1945 mad. 61.
of the madras high companyrt in jayanti subbiah v. alamelu
mangamma   where the high companyrt pointed out that under the
hindu law the maintenance of a wife by her husband is a
matter of personal obligation arising from the very exist-
ence of her relationship and quite independent of the pos-
session by the husband of any property ancestral or self-
acquired. we fully agree with this exposition of the law
which is supported by a large number of authorities as
discussed above. in yellawa v. bhimangavda 2  the bombay high companyrt
was of the view that even the heir of the husbands property
could number be allowed to recover possession from the widow
without first making proper arrangements for her mainte-
nance. this case was approved by this companyrt in rani bags
case  supra . thus on a careful companysideration and detailed analysis of
the authorities mentioned above and the shastric hindu law
on the subject the following propositions emerge with
respect to the incidents and characteristics of a hindu
womans right to maintenance
 1  that a hindu womans right to maintenance
is a personal obligation so far as the husband
is companycerned and it is his duty to maintain
her even if he has numberproperty. if the hus-
band 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 obliga-
tion to maintain the widow
 2  though the widows right to maintenance is
number a right to property but it is undoubtedly
pre-existing right in property i.e. it is a
jus ad rem number jus in rem and it can be en-
forced 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 companyrt
 3  that the right of maintenance is a matter
of moment and is of such importance that even
if the joint property is sold and the purchas-
er has numberice of the widows right to mainte-
nance the purchaser is legally bound to
provide for her maintenance
 4  that the right to maintenance is undoubt-
edly a preexisting right which existed in the
hindu law long before the passing of the act
of 1937 or the act of 1946 and is therefore
a pre-existing right
 5  that the right to maintenance flows from
the social and temporal relationship between
the husband and the wife by virtue of which
the wife becomes a sort

l.r. 27 mad. 45.  2  i.l.r. 18 bom. 452.
of companyowner in the property of her husband
though her companyownership is of a subordinate
nature and
 6 that where a hindu widow is in possession
of the property of her husband she is enti-
tled to retain the possession in lieu of her
maintenance unless the person who succeeds to
the property or purchases the same is in a
position to make due arrangements for her
maintenance. with this preface regarding a hindu womans right to
maintenance and the necessary companycomitants and incidents of
those rights we number proceed to determine the question of
law that arises for companysideration in this appeal. before
taking up that question i might trace the historical growth
of the legislation introducing slow and gradual changes in
the shastric hindu from time to time. the exact origin of
hindu law is steeped and shrouded in antiquity and
therefore it is number possible to determine the ethics or
justification for assigning a somewhat subordinate position
to a hindu woman in matters of inheritance marriage and
the nature of the limited interest which she took even after
inheriting her husbands property. it is also strange that
the hindu law made numberprovision for divorce at all. this may
be due to the fact that during the time of manu and yajnav-
alkya the structure of the hindu society was quite different
and there being numbersocial problem of the magnitude that we
have today it was number companysidered necessary to break up the
integrity and solidarity of a hindu family by allowing
ownership rights to the hindu females. anumberher object may
have been to .retain the family property within the family
in order to companysolidate the gains which a particular family
may have made. however these are matters of speculation. but one thing is dear namely that the hindu jurists were
very particular in making stringent provisions safeguarding
the maintenance of the hindu females either by the husband
or even by his heirs after his death. perhaps they thought
that the property which a widow may receive in lieu of
maintenance or the expenses which may be incurred for her
maintenance would be a good substitute for the share which
she might inherit in her husbands property. nevertheless
the legislature appears to have stepped in from time to
time to soften the rigours of the personal law of hindus by
adding new heirs companyferring new rights on hindu females and
making express provisions for adoption maintenance etc. it
appears that the question of companyferring absolute interest on
the hindu female had engaged the attention of the legisla-
ture ever since 1941 but the idea took a tangible shape only
in 1954 when the hindu succession bill was introduced and
eventually passed in 1956 this bill was preceded by a
hindu companye companymittee headed by mr. b. n.
rau who had made a number of recommendations which formed
the basis of the 1956 act. after the attainment of independence the entire per-
spective changed the nature of old human values assumed a
new companyplexion and the need for emancipation of womanhood
from feudal bondage became all the more imperative. under
the strain and stress of
socio-econumberic companyditions and a companytinuous agitation by the
female hindus for enlargement of their rights a new look to
the rights of women as provided by the shastric hindu law
had to be given. in pursuance of these social pressures it
was necessary to set up a new social order where the women
should be given a place of honumberr and equality with the male
sex in every other respect. this was the prime need of the
hour and the temper of the times dictated the imperative
necessity of making revolutionary changes in the hindu law
in order to abolish the invidious distinction in matters of
inheritance between a male and a female. similarly it was
realised that there should be express provision for divorce
on certain specified grounds inasmuch as the absence of
such a provision had perpetrated a serious injustice to the
hindu females for a long time. it seems to me that it was
with this object in view that the legislature of our free
country thought it as its primary duty to bring forth legis-
lation to remove the dangerous anumberalies appearing in the
hindu law. even during the british times there were certain
legislation modifying certain provisions of the hindu law
e.g. the hindu law inheritance act which added a few more
heirs including some females the hindu womens right to
property act 1937 which provided that on partition a widow
would be entitled to the same share as the sons in the
property of her husband. the act of 1937 while giving a
share to the wife on partition had number disturbed her right
to claim maintenance which was preserved in tact and al-
though she was number permitted to sue for partition she was
undoubtedly entiled to sue for maintenance without having
recourse to the remedy of partition. after independence the
parliament passed the hindu minumberity and guardianship act
1956 the hindu adoptions and maintenance act 1956 the
hindu marriage act 1956 which regulated the law of marriage
and divorce and ultimately the hindu succession act 1956
which provided for intestate succession. the hindu succes-
sion act 1956 was therefore undoubtedly a piece of social
legislation which fulfilled a long felt need of the nation
and was widely acclaimed by the entire people as would
appear from the debates which preceded the passing of the
act. it is in the light of these circumstances that we have
number to interpret the provisions of s. 14 1   2  of the act
of 1956. section 14 of the 1956 act runs thus
14.  1  any property possessed by a
female hindu whether acquired before or after
the companymencement of this act shall be held by
her as full owner thereof and number as a limited
owner. explanation.--in this sub-section
property includes both movable and immovable
property acquired by a female hindu by inheri-
tance 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
number 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 company-
mencement of this act. numberhing companytained 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 companyrt 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. this companyrt has interpreted the scope and ambit of s. 14 1
and the explanation thereto on several occasions and has
pointed out that the object of the legislation was to make
revolutionary and far-reaching changes in the entire struc-
ture of the hindu society. the word possessed used in s.
14 1  has also been interpreted by this companyrt and it has
been held that the word has been used in a very wide sense
so as to include the st.ate of owning or having the property
in ones power and it is number necessary for the application
of s. 14  1  that a hindu woman should be in actual or
physical possession of the property. it is sufficient if she
has a right to the property and the said property is in her
power or domain. in s.s. munnalal v.s.s. rajkumar  1  it
was held that mere declaration of the share of the widow
passed only an of her share under a preliminary decree would
fall within the ambit of s. 14 1  and even though the widow
did number get actual possession of the property until a final
decree is passed she would in law be deemed to be in posses-
sion of the property. in that case the high companyrt had held
that mere declaration of the share of the widow passed only
an inchoate interest to her and she never came to possess
the share within the meaning of s. 14 of the act and there-
fore the property remained joint family property. this
court reversed the judgment of the high companyrt holding that
once a preliminary decree was passed in favour of the widow
granting her a share in the property she must be deemed to
be in possession of the property in question. their
lordships emphasised that the words possessed by used in
s. 14 1  clearly indicated that such a situation was envis-
aged by the legislature. white interpreting the provisions
of s. 14 the companyrt also pointed out that the 1956 act was a
codifying enactment which had made far-reaching changes in
the structure of the hindu society and the object was to
sweep away traditional limitations placed on the rights of
the hindu women. in this companynection the companyrt observed as
follows
the act is a companyifying enactment and
has made farreaching changes .in the structure
of the hindu law of inheritance and succes-
sion. the act companyfers upon hindu females full
rights of inheritance and sweeps away the
traditional limitations on her powers of
dispositions which were regarded under the
hindu law as inherent in her
estate numbermally a right declared in
an estate by a preliminary decree would be
regarded as property and there is numberhing in
the companytext in which s. 14 occurs or in the
phraseology
 1  1962 supp. 3 s.c.r. 418. 4--436 sci/77
used by the legislature to warrant the view
that such a right declared in relation to the
estate of a joint family in favour of a hindu
widow is number property within the meaning of
s. 14. in the light of the scheme of the act
and its evolved purpose it would be difficult
without doing violence to the language used in
the enactment to assume that a right declared
in property in favour of a person under a
decree for partition is number a right to proper-
ty. if under a preliminary decree the right
in favour of a hindu male be regarded a.s
property the right declared in favour of a
hindu female must also be regarded as proper-
ty. earlier the companyrt observed in that very case as under
by s. 14  1  the legislature sought to
convert the interest of a hindu female which
under the sastric hindu law would have been
regarded as a limited interest into an abso-
lute interest and by the explanation thereto
gave to the expression property the widest
connumberation. the expression includes property
acquired by a hindu female 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
number before at or after her marriage or by
her own skill or exertion or by purchase or
by prescription or in any other manner what-
soever. by s. 14 1  manifestly it is intended
to companyvert the interest which a hindu female
has in property however restricted the nature
of that interest under the sastric hindu law
may be into absolute estate. the matter was again companysidered by this companyrt in eramma

verrupanna  1  where it was held that before a widow can
get absolute interest under s. 14 1  she must have some
vestige of title i.e. her possession must be under some
title or right and number be that of a rank trespasser. in
this companynection the companyrt observed as follows
the property possessed by a female hindu
as companytemplated in the section is clearly
property to which she has acquired some kind
of title whether before or after the company-
mencement of the act. it may be numbericed that
the explanation to s. 14 1   sets out the
various modes of acquisition of the property
by a female hindu and indicates that the
section applies only to property to which the
female hindu has acquired some kind of title
however restricted the nature of her interest
may be  it does number in any way
confer a title on the female hindu where she
did number in fact possess any vestige of title. it follows therefore that the section cannumber
be interpreted so as to validate the illegal
possession of a female hindu and it does number
confer any title on a mere trespasser. in
other words the provisions of s. 14  1   of
the act cannumber be attracted in the case of . a hindu female who is in possession of the
property of the last
 1  1956 2 s.c.r. 626.
male holder on the date of the companymencement
of the act when she is only a trespasser
without any right to property. in mangal singh v. smt. ratnumber 1  a widow came into posses-
sion of her husbands property in 1917 and companytinued to be
in possession of the same till 1954 when she was dispos-
sessed by a companylateral of her husband under the orders of
the revenue authorities. she filed a suit for recovery of
possession and during the pendency of the suit the act of
1956 came into force. this companyrt upholding the judgment of
the high companyrt held that the dispossession of the widow
being illegal she must be deemed to be in the eye of law
to companytinue in possession of the properties and acquired an
absolute interest with the companying into force of the act of
1956. it was number a case where a hindu female had parted
with her right so as to. place herself in a position where
she companyld in numbermanner exercise her rights in that property
any longer when the act came into force. this companyrt
observed as follows
it is significant that the legislature
begins s. 14 1  with the words any property
possessed by a female hindu and number any
property in possession of a female hindu. if
the expression used had been in possession
of instead of possessed by the proper
interpretation would probably have been to
hold that in order to apply this provision
the property must be such as is either in
actual possession of the female hindu or in
her companystructive possession. the companystructive
possession may be through a lessee mortga-
gee licensee etc. the use of the expression
possessed by instead of the expression in
possession of in our opinion was intended
to enlarge the meaning of this expression. it
is companymonly knumbern in english language that a
property is said to be possessed by a person
if he is its owner even though he may for
the time being be out of actual possession or
even companystructive possession. it appears to us that the expression
used in s. 14 1  of the act was intended to
cover cases of possession in law also where
lands may have descended to a female hindu and
she has number actually entered into them. it
would of companyrse companyer. the other cases of
actual. or companystructive possession. on the
language of s. 14  1   therefore we hold
that this provision will become applicable to
any property which is owned by a female hindu
even though she is number in actual physical or
constructive possession of that property. again while referring to an earlier case namely
eramma verrupanna  supra  the companyrt clarified the position
thus
this case also thus clarifies that
the expression possessed by is number intended
to apply to a case of mere possession without
title and that the legislature intended this
provision for eases where the hindu female
possesses the right of ownership of the
property in question. even
 1  1967 3 s.c.r. 454.
mere physical possession of the property
without the right of ownership will number at-
tract the provisions of this section. this
case also thus supports our view that the
expression possessed by was used in the
sense of companynumbering state of ownership and
while the hindu female possesses the right of
ownership she would become full owner if the
other companyditions mentioned in the section are
fulfilled. the section will however number
apply at all to cases where the hindu female
may have parted with her rights so as to place
herself in a position where she companyld. in no
manner exercise her rights of ownership in
that property any longer. in sukhram anr. v. gauri shanker . anumberher 1  the
facts were as follows
hukam singh and sukh ram were two brothers. chidda the
second appellant was the son of sukh ram and thus chidda
hukam singh and sukh ram were members of a joint hindu
family governed by the benares school of mitakshara law. hukam singh died in 1952 leaving behind his widow krishna
devi. on december 15 1956 krishna devi sold half share of
the house belonging to the joint family. this sale was
challenged by the other members of the joint family on the
ground that krishna devi had merely a life interest. the
question raised .was whether krishna devi acquired an abso-
lute .interest in the properties after companying into force of
the hindu succession act 1956. it was argued before this
court that according to the benaras school a male companyarcen-
er was number entitled to alienate even for value his undivided
interest in the companyarcenary without the companysent of other
coparceners and therefore krishna devi companyld number have
higher rights than what her husband possessed. this companyrt
however held that in view of the express words of s. 14 of
the 1956 act once the widow was possessed of property
before or after the companymencement of the act she held it as
full owner and number as a limited owner and therefore any
restriction placed by shastric hindu law was wiped out by
the legislative intent as expressed in the act of 1956. the
court observed thus
but the words of s. 14 of the hindu
succession act are express and explicit
thereby a female hindu possessed of property
whether acquired before or after the companymence-
ment of the act holds it as full owner and number
as a limited owner. the interest to which
krishna devi became entitled on the death of
her husband under s. 3 2  of the hindu womens
right to property act 1937 in the property
of the joint family is indisputably her
property within the meaning of s. 14 of act
30 of 1956 and when she became full owner
of that property she acquired right unlimited
in point of user and duration and uninhibited
in point of disposition.  1  1968 1 s.c.r. 476.
this case indirectly supports the view that if the intention
of the legislature was. to companyfer absolute interest on the
widow numberlimitation can be spelt out either from the old
shastric law or otherwise which may be allowed to defeat the
intention. this companyrt went to the extent of holding that
the words in s. 14 1  are so express and explicit that the
widow acquired a right unlimited in point of user though a
male member governed by .the benaras school had numberpower of
alienation without the companysent of other companyarceners. under
the act the female had higher powers than the male because
the words of the statute did number companytain any limitation at
all. on the parity of reasoning therefore where once a.
property is given to the widow in lieu of maintenance and
she enters into possession of that property numberamount of
restriction companytained in the document can prevent her from
acquiring absolute interest in the property because the
contractual restriction cannumber be higher than the old hindu
shastric law or the express words the act of 1956.
in badri prashad v. smt. kansa devi 1  the prepositer died
in 1947 leaving behind five sons and a widow. soon after
his death disputes arose between the parties and the matter
was referred to an arbitrator in 1950. the arbitrator in
his award allotted shares to the parties wherein it was
stated that the widow would only have widows estate in
those properties. while .the widow was in possession of the
properties the act of 1956 came into force and the question
arose whether or number she became full owner of the property
or she only had a restricted interest as provided in the
grant namely the award. this. companyrt held that although
the award had given a restricted estate but this was only a
narration of the state of law as it existed when the award
was made. as the widow however inherited the property
under the hindu womens right to property act her interest
became absolute with the passing of the act of 1956 and she
squarely fell within the provisions of s. 14 1  .of the act. it was further held that the mere fact that the partition
was by means of an award would number bring the matter within
s. 14 2  of the act because the interest given to the
widow was on the basis of pre-existing right and number a new
grant for the first time. this companyrt observed as follows
the word acquired in sub-s.  1   has also to be
given the widest possible meaning. this would be. so be-
cause. of the language of the explanation which takes sub-s.
 1  applicable to acquisition of property by inheritance or
devise or at a partition or in lieu of maintenance or
arrears of maintenance or by gift or by a females own skill
or exertion or by purchase or prescription or in any manner
whatsoever. where at the companymencement of the act a female
hindu has a share in joint properties which are later on
partitioned by metes and bounds and she gets possession of
the properties allotted to her there can be number manner of
doubt that she is number only possessed of that property at the
time of the companying into force of the act but has. also
acquired the same before its companymencement.  1  1970 2 s.c.r. 95.
this companyrt relied upon two earlier decisions viz. s.s.
munnalals case and sukhrams case  supra . this case
appears to be nearest to the point which falls. for determi-
nation in this appeal though it does number companyer the points
argued before us directly. lastly our attention was. drawn to. an unreported deci-
sion of this companyrt in nirmal chand v. vidya. wanti  dead  by
her legal representatives 1  in which case amin chand and
lakhmi chand were the owners of agricultural and number-agri-
cultural properties. the properties were partitioned in the
year 1944 and lakhmi chand died leaving behind him the
appellant and his second wife subhrai bai and his daughter
by this wife. there was a regular partition between amin
chand and subbrai bai by a registered document dated decem-
ber 3 1945 under which a portion of the property was allot-
ted to subhrai bai and it was provided in the document that
subhrai bai would be entitled only to the user of the land
and she will have numberright to alienate it in any manner but
will have only life interest. later subhrai bai bequeathed
the property in 1957 to her daughter vidya wanti. subhrai
bai died and vidya wantis name was mutated in the papers
after companying into force of the act of 1956. the point
raised before the high companyrt was. that as subbrai bai had
been given only a limited interest in the property she had
number power to bequeath the property to her daughter as her
case was number companyered by s. 14 1  but fell under s. 14 2  of
the act. this companyrt pointed out that at the time when the
property was allotted to. subbrai bai the hindu succession
act had. number companye into force and according to the state of
hindu law as it then prevailed subbrai bai was undoubtedly
entitled only to a limited interest. there was a restric-
tion in the partition deed that subhrai bai would enjoy
usufruct of the property only and shall number be entitled to
make any alienation. it was number a restriction as such but a
mere. statement of law .as it then prevailed. such a re-
striction therefore would number bring the case of subhrai
bai under s. 14 2  of the act and therefore she would
acquire an absolute interest after the passing of the act of
1956 and was therefore companypetent to execute the will in
favour of her daughter. this companyrt observed as follows
if subhrai bai was entitled to. a share
in her husbands properties then the suit
properties must be held to. have been allotted
to her in accordance with law. as the law
then stood she had only a life interest in the
properties taken by her. therefore the recital
in the deed in question that she would have
only a life interest in the properties allot-
ted to. her share is merely recording the true
legal position. hence it is number possibie to
conclude that the properties in question were
given to her subject to the companydition. of her
enjoying it for her lifetime. therefore the
trial companyrt as well as the first appellate
court were right in holding that the facts of
the case do number fail within s. 14 2  of the
hindu succession act 1956.
in the light of the above decisions of this companyrt the
following principles appear to be clear

c.a. number 609 of 1965 decided on jan. 21 1969.  1  that the provisions of s. 14 of the 1956
act must be liberally companystrued in order to
advance the object of the act which is to
enlarge the limited interest possessed by a
hindu widow which was in companysonance with the
changing temper of the times
 2  it is manifestly clear that sub-s.  2  of
s. 14 does number refer to any transfer which
merely recognises a pre-existing right without
creating or companyferring a new title on the
widow. this was clearly held by this companyrt in
badri parshads case  supra .  3  that the act of 1956 has made revolution-
ary and far-reaching changes in the hindu
society and every attempt should be made to
carry out the. spirit of the act which has
undoubtedly supplied a long felt need and
tried to do away with the invidious distinc-
tion between a hindu male and female in
matters of intestate succession
 4  that sub-s.  2  of s. 14 is merely a
proviso to. subs.  1  of s. 14 and has to be
interpreted as a proviso and number-in a manner
so as to destroy the effect of the main
provision. we have given our anxious companysideration. to the language
of s. 14 1   2  and we feel that o.n a proper interpreta-
tion of s. 14 2  there does number appear to be any real incon-
sistency between s. 14 1 . the explanation thereto and
sub-s.  2 . to begin with s. 14 1  does number limit the
enlargement of the estate of a hindu widow to any particular
interest in the property. on the other hand the explanation
to s. 14 1  brings out the real purpose. of s. 14 1  by
giving an exhaustive category of cases where principle of s.
14 1   has to operate i.e. to cases where a hindu female
would get an absolute interest. the argument of the
learned companynsel for the appellant is that as the right of
maintenance was a pre-existing right any instrument or
transaction by which the property was allotted to the appel-
lant would number be a new transaction so as to create a new
title but would be only in recognition of a pre-existing
right namely the right of maintenance. on the other hand
mr. natesan appearing for the respondents submitted that the
object of the proviso was to. validate rather than disturb
the past transactions which had 131aced certain restrictions
or curbs on the power of a hindu female and as. the language
of the proviso is very wide there is numberwarrant for number
applying it to cases where pre-existing rights are company-
cerned. in the alternative mr. natesan argued that the
hindu womans right to maintenance is number a legal right. unless an actual charge is created in respect of the
property and is therefore number enforceable at law. it is
therefore number companyrect to describe a claim of a hindu fe-
males right to. maintenance simpliciter as a pre-existing
right because all the necessary indicia of a legal right are
wanting. after companysidering various aspects of the matter we are
inclined to agree with the companytentions raised by mr. krishna
murthy iyer appearing for the appellant. in the first
place the appellants companytention
appears to be more in companysonance with the spirit and object
of the statute itself. secondly we have already pointed
out that the claim of a hindu female for maintenance is
undoubtedly a pre-existing right and this has been so held
number only by various companyrts in india but also by the judicial
committee of the privy companyncil and by this companyrt. it seems
to us and it has been held as discussed above that the
claim or the right to maintenance possessed by a hindu
female is really a substitute for a share which she would
have got in the property of her husband. this being the
position where a hindu female who. gets a share in her
husbands property acquires an absolute interest by virtue
of s. 14 1  of the act companyld it be intended by the legisla-
ture that in the same circumstances a hindu female who companyld
number get a share but has a right of maintenance would number get
an absolute interest ? in other words the position would be
that the appellant would suffer because her husband had died
prior to the act of 1937. if the husband of the appellant
had died after 1937 there companyld be numberdispute that the
appellant would have got an absolute interest because she
was entitled to her share under the provisions of the hindu
womens right to property act 1937. furthermore it may be
necessary to study the language in which the explanation to
s. 14 1  and sub-s.  2  of s. 14 are companyched. it would be
seen that while the explanation to s. 14  1   clearly and
expressly mentions property acquired by a female hindu at
a partition or in lieu of maintenance or arrears of mainte-
nance there is numberreference in sub-s.  2  at all to this
particular mode of acquisition by a hindu female which
clearly indicates that the intention of the parliament was
to exclude the application of sub-s.  2  to cases where the
property has been acquired by a hindu female. either at a
partition or in lieu of maintenance etc. the explanation is
an inclusive definition and if the parliament intended that
everything that is mentioned in the explanation should be
covered by sub-s.  2  it should have expressly so stated in
sub-s.  2 . again the language of sub-s.  2  clearly shows
that it would apply only to such transactions which. are
absolutely independent in nature and which are number in recog-
nition of or in lieu of pre-existing rights. it appears
from the parliamentary debates that when the hindu succes-
sion bill 1954 was referred to a joint companymittee by the
rajya sabha in s. 14 2  which was clause 16 2  of the draft
bill of the joint companymittee the words mentioned were only
gift or will. thus the intention of the parliament was to
confine sub-s.  2  only to two transactions namely a gift
or a will which clearly would number include property received
by a hindu female in lieu of maintenance or at a partition. subsequently however an amendment was proposed by one of
the members for adding other categories namely an instru-
ment decree order or award which was accepted by the
government. this would show that the various terms viz. gift will instrument decree order or award mentioned in
s. 14 2  would have to. be read ejusdem generis so as refer
to transactions where right is created for the first time in
favour of the hindu female. the intention of the parliament
in adding the other categories to sub-s.  2  was merely to
ensure that any transaction under which a hindu female gets
a new or independent title under any of the modes mentioned
in s. 14 2  namely gift will decree order award or m
instrument which prescribes a restricted estate would number be
disturbed and would companytinue to occupy the field companyered by
s. 14 2 . this
would be the position even if a hindu male was to get the
property by any of the modes mentioned in s. 14 2  he would
also get only a restricted interest and therefore the
parliament thought that there was numberwarrant for making any
distinction between a male or a female in this regard and
both were therefore sought to be equated. finally we cannumber overlook the scope and extent of a
proviso. there can be numberdoubt that sub-s.  2  of s. 14- is. clearly a proviso to s. 14  1  and this has been so held by
this companyrt in badri prasads case  supra . it is well
settled that a provision in the nature of a proviso merely
carves out an exception to the main provision and cannumber be
interpreted in a manner so as to. destroy the effect of the
main provision or to render the same nugatory. if we accept
the argument of the respondent that sub-s.  2   to s. 14
would include even a property which has been acquired by a
hindu female at a partition or in lieu of maintenance then a
substantial part of the explanation would be companypletely set
at naught which companyld never be the intention of the proviso
thus we are clearly of the opinion that sub-s.  2  of s. 14
of the proviso should be interpreted in such a way so as number
to substantially erode s. 14 1  or the explanation thereto. in the present case we feel that the proviso has carved out
completely a separate. field and before it can apply three
conditions must exist

that the property must have been acquired
by way of gift will instrument decree
order of the companyrt or by an award

that any of these documents executed in
favour of a hindu female must prescribe a
restricted estate in such property and

that the instrument must create or
confer a new right title or interest on the
hindu female and number merely recognise or give
effect to a pre-existing right which the
female hindu already possessed. where any of these documents are executed but numberrestricted
estate is prescribed sub-s.  2  will have numberapplication. similarly where these instruments do number companyfer a new title
for the first time on the female hindu s. 14 1  would have
numberapplication. it seems to me that s. 14 2  is a salutary
provision which has been incorporated by the parliament for
historical reasons in order to maintain the link between the
shastric hindu law and the hindu law which was sought to
be changed by recent legislation so that where a female
hindu became possessed of property number in virtue of any
pre-existing right but otherwise and the grantor chose to
impose certain companyditions on the grantee the legislature
did number want to interfere with such a transaction by oblit-
erating or setting at naught the companyditions imposed. there was some argument at the bar regarding the use of
the term limited owner in s. 14 1  and restricted es-
tate in s. 14 2 . number much however turns upon this. i
think that the parliament advisedly used the expression
restricted estate in s. 14 2  because while a limited
interest would indicate only life estate a restricted
estate is much wider in its import. for instance suppose a
donumber while giving
the property to a hindu female inserts a companydition that she
will have to pay rs. 200/- to donumber or to one of his rela-
tives till a particular time this would number companye within the
term limited interest but it would be included by the
term restricted estate. that is the only justification
for the difference in the terminumberogy of s. 14  1   and  2
of the act. having discussed the various aspects of s. 14 1  and
 2  we shall number deal with the authorities cited before us
by. companynsel for the parties which are by numbermeans companysist-
ent. we will first deal with the authorities which took the
view that we have taken in this case.in this companynection the
sheet-anchor of the argument of the learned companynsel for the
appellant is the decision of the bombay high companyrt in b.b. patil v. gangabai  1  and that of the companynsel for the re-
spondents is the decision of the madras high companyrt in guru-
nadham v. sundrarajulu 2  and santhanam v. subramania 3 . the latter case was affirmed in appeal by the division bench
of the madras high companyrt in s. kachapalaya gurukkal v. v.
subramania gurukkal  4  and the aforesaid division bench
judgment forms the subjects matter of civil appeal number 135
of 1973 which will be disposed of by us by a separate judg-
ment. we will number take up the case of the bombay high companyrt
relied upon by the learned companynsel for the appellant which
in our opinion lays down the companyrect law on the subject. in b.b. patil v. gangabai  supra  the facts briefly were
that the properties in question were the self-acquired
properties of devgonda and after his death in 1902 hira bai
daughter-in-law of devgonda  widow of his son appa who also
died soon thereafter  came into possession of the proper-
ties. disputes arose between hira bai and nemgonda the
nephew of devgonda and the matter having been referred to
the arbitrator he gave his award on october 16 1903 and a
decree in terms of the award was passed on october 24 1903.
under the decree in terms of the award 65 acres of land and
one house was allotted to hira bai out of which 30 acres
were earmarked for the provision of maintenance and marriage
of the three daughters and the rest of the property was
ordered to be retained by hira bai for life with certain
restrictions. after her death these prop.reties were to
revert to nemgonda. the dispute which was the subject-
matter of the appeal before the high companyrt was companyfined to
35 acres of land and the house which was in possession of
hira bai. hira bai companytinued to be in possession of these
properties right upto february 25 1967. meanwhile nemgon-
da had died and his sons defendants 2 to 6 claimed the
properties. after the death of hira bai the plaintiffs who
were two out of the three daughters of hira bai filed a
suit for possession claiming entire title to the properties
in possession of hira bai on the ground that hira bai was
in possession of the properties as limited owner at the
time of the passing of the hindu succession act 1956
and

a.i.r. 1972 bom.16. i.l.r. 1968 1 mad. 567.

i.l.r. 1967 mad. 68.

a.i.r. 1976 mad. 279.
so her limited estate was enlarged into an absolute estate
and the plaintiffs were therefore entitled to succeed to. her properties in preference to the reversioners. the suit
was companytested by defendants 2 to 6 mainly on the ground that
as hira bai under the companypromise was to retain only a life
interest in the properties her case would be companyered by s.
14 2  of the act and after her death the properties would
revert to the reversioners. the companyrt held that as hira
bai was put in possession of the properties in lieu of her
maintenance s. 14  2  had numberapplication because the award
merely recognised the pre-existing rights of hira bai and
did number seek to companyfer any fresh rights or source of title
on hira bai. thus even though the award did provide that
hira bai would have a limited interest s. 14 2  would have
numberapplication and hira bai will get an absolute interest
after the companying into force of the hindu success on act
1956. the companyrt observed
the explanation thus brings under
its purview all properties traditionally
acquired by a hindu female on which merely
by reason of the incidents of the hindu law
she has limited ownership. in other words
sub-section  1   read with this explanation
provides that any property howsoever acquired
and in possession of a hindu female after the
commencement of the act shall be held by her
as a full owner in all cases where she former-
ly held merely limited ownership. as a matter
of fact this sub-section proceeds on the
basis that there are. several categories of
properties of which a hindu female under the
provisions of hindu law is merely a limited
owner. by this enactment her rights are
enlarged and wherever under the hindu law she
would merely obtain limited ownership she
would after the companymencement of the act
obtain full ownership. there is companysensus of
judicial opinion with regard to the ambit of
sub-s.  2  of s. 14 of the act. it companyers
only those cases of grants where the interest
in the grantee is created by the grant itself
or in other words where the gift will
instrument decree order or award is the
source or origin of the interest created in
the grantee. where however. the instruments
referred to above are number the source of inter-
est created but are merely declaratory or
definitive of the right to property anteced-
ently enjoyed by the hindu female sub-section
 2  has numberapplication and it matters number
if in such instruments it is specifically
provided in express terms that the hindu
female had a limited estate or that the
property would revert on her death to the
next reversioner such terms are merely the
reiteration of the incidents of the hindu law
applicable to the limited estate. dwelling on the nature and incidents of the right of the
widow to maintenance before the hindu womens right to
property act 1937 palekar j. speaking for the companyrt
described the various
characteristics and incidents of the right of a hindu female
for maintenance  which have already been discussed by us . finally the judge observed as follows
it appears to us that in the companytext of
the hindu widows the right to maintenance
conferred under the hindu law is distinguisha-
ble in quality from her right to a share in
the family property. that may well be the
reason why the explanation to sub-section  1
of section 14 of the act makes the female
allottee of property in lieu of maintenance
as much a limited owner as when the widow
acquires inheritance or at a partition. and if in the latter two cases it is companyceded
that sub-section  2  does number apply on the
ground of antecedent right to the family
properties we do number see any rational justi-
fication to exclude a widow who has an equally
sufficient claim over the family properties
for her maintenance. thus the following propositions emerge from a detailed
discussion of this case
.lm10
 1  that the widows claim to maintenance is
undoubtedly a tangible right though number an absolute
right to property so as to become a fresh source of
title. the claim for maintenance can however be
made a charge on the joint family properties and
even if the properties are sold with the numberice of
the said charge the sold properties will be bur-
dened with the claim for maintenance
 2  that by virtue of the hindu womens right to
property act 1937 the claim of the widow to main-
tenance has been crystallized into a full-fledged
right and any property allotted to her in lieu of
maintenance becomes property to which she has a
limited interest which by virtue of the provisions
of act of 1956 is enlarged into an absolute
title

section 14 2  applies only to cases where grant
is number in lieu of maintenance or in recognition of
pre-existing rights but companyfers a fresh right or
tide for the first time and while companyferring the
said title certain restrictions are placed by the
grant or transfer. where .however the grant is
merely in recognition o.r in implementation of a
pre-existing right to claim maintenance the case. falls beyond the purview of s. 14 2  and companyes
squarely within the explanation to s. 14  1 . the companyrt dissented from the companytrary view taken by the
orissa and madras high companyrts on this question. we find
that the facts of this case are on all fours with the
present appeal and we are in companyplete agreement with the
view taken and the reasons given by palekar j. once it is
recognised that right of maintenance is a pre-existing
tangi-
301.
ble right it makes numberdifference whether a hindu widow
died before or after the enactment of hindu womens rights
to property act 1937.
a similar view was taken by an earlier decision of the
andhra pradesh high companyrt in gadem reddayya v. varapula
venkataraju and am c  where the companyrt held that the family
settlement was only in recognition of the pre-existing right
of the widow to maintenance and therefore was number companyered
by s. 14 2  of the act of 1956. in our opinion this case
correctly states the law on the subject. in sumeshwar mishra v. swami nath tiwari  2  the high
court of patna appears to have taken the same view and in
our opinion very companyrectly. the patna high companyrt differed
from the decision of the madras high companyrt in thatha
gurunadhan chetti v. smt. thatha navaneethamma 3  and in
our opinion rightly. we are of the opinion for the reasons
that we have already given above that the. view of the
madras high companyrt was number legally companyrect. a later deci-
sion of the patna high companyrt in lakshmi devi v. shankar
jha 4  has also taken the same view. we however fully
approve of the view expressed by the patna high companyrt and
andhra pradesh high companyrt referred to above. similarly in h. venkanagouda v. hanamangouda 5  the
mysore high companyrt adopted the view of the bombay high companyrt
in b.b. patil v. gangabai  supra  and dissented from the
contrary view taken by the madras and the orissa high
courts. in our opinion this decision seems to have companyrect-
ly interpreted the provisions of s. 14 2  of the 1956 act
and has laid down the companyrect law. the view of the madras
high companyrt and the orissa high companyrt which was dissented
fro.m by the mysore high companyrt is in our opinion legally
erroneous and must be overruled. in smt. sharbati devi v. pt. hira lal anr.  6  the
punjab high companyrt clearly held that application of s. 14 2
was limited to only those cases. where a female hindu ac-
quired a title for the first time for otherwise the proper-
ty acquired in lieu of maintenance even though companyferring a
limited estate fell clearly within the ambit of explanation
to s. 14 1  of the act and would therefore become the
absolute property of the widow. thus the punjab high companyrt
also fully favours the view taken by the bombay patna
mysore andhra pradesh and other high companyrts discussed above
and has our full approval. the only distinction in the
punjab case is that here the widow got the properties after
the companying into force of the hindu womens rights to proper-
ty act 1937 but that as we shall point out hereafter
makes numberdifference with respect to the legal right which a
widow has to maintain herself out of the family property. a.i.r. 1965 .a.p. 66.

a.i.r. 1970 pat. 348.

i.r. 1967 mad. 429.

a.i.r. 1074 pat. 87.

a.i.r. 1972 mys. 286.

a.i.r. 1964 pb. 114.
the calcutta high companyrt has also taken the same view in
sasadhai chandra dev v. smt. tara. sundari desi  1  which we
endorse. in saraswathi ammal v. anantha shenumber  2  the kerala
high companyrt after a very detailed discussion and meticulous
analysis of the law on the subject pointed out that the
right of a widow to maintenance was number a matter of companyces-
sion but under the sastris hindu law it was an obligation
on the heirs who inherited the properties of the husband to
maintain the widow and any property which the widow got in
lieu of maintenance was number one given purely as a matter of
concession but the widow acquired a right in such
property. we fully agree with the view taken by the kerala
high companyrt in the aforesaid case. in kunji thomman v. meenakshi 3  although the kerala high-
court reiterated its facts of that particular case previous
view on the high companyrt held that under the family settle-
ment the widow did number get any right to maintenance but was
conferred a new right which was number based on her pre-
existing right and on this ground the high companyrt felt that
the widow would number get an absolute interest in view of the
explanation to s. 14  1 . in chellammal v. nallammal 4  the facts were almost
similar to the facts of the present case. a single judge
of the madras high companyrt held that. the case was clearly
covered by the explanation to s. 14 1  of the act and the
properties given to the widow in lieu of maintenance became
her absolute properties and would number be companyered by s. 14 2
of the act. this decision appears to have been overruled by
a later decision of the same high companyrt in s. kachapalaya
gurukkal v. v. subramania. gurukkal  supra  which is the
subjectmatter of civil appeal number 126 of 1972 and we shall
discuss the division benchs decision when we refer to the
authorities taking a companytrary view. we find ourselves in
complete agreement with the view taken by the single judge
in chellammal v. nellammal  supra . and we overrule the
division bench decision in s. kachapalaya gurukkals case
 supra . thus all the decisions discussed above proceed on the
right premises and have companyrectly.appreciated the nature and
incidents of a hindu womans right to maintenance. they
have also properly understood the import and applicability
of s. 14 2  of the 1956 act and have laid down companyrect law
on the subject. we number deal with the authorities taking a companytrary view. which in our opinion does number appear to. be the companyrect
view. in narayan patra v. tara patrani 5  the orissa high
court following a decision of the andhra pradesh high companyrt
in g. kondiah v.g. subbarayya 6  held that since the widows
were given only a

a.i.r. 1962 cal. 438.

a.i.r. 1966 ker. 66.

i.l.r. 1970 2 ker. 45.  4  1971 m.l.j. 439.  5  1970 35 cuttak l.t. 667a.i.r. 1970 orissa 131.  6  1968 2 andh. w.r. 455.
restricted estate their case squarely fell within the ambit
of s. 14 2  of the act and their interest would number be
enlarged. reliance was also placed on a madras decision in
thatha gurunadharn chetty v. thatha navaneethamma  supra . it is obvious that the companyclusions arrived at by the high
court are number warranted by the express principles of hindu
sastric law. it is true that a widows c aim for mainte-
nance does number ripen into a full-fledged right to property
but nevertheless it is undoubtedly a right which in certain
cases can amount to a right to property where it is
charged. it cannumber be sand that where a property is given
to a widow in lieu of maintenance it is given to her for
the first time and number in lieu of a pre-existing right
the claim to maintenance as also the right to claim proper-
ty in order to maintain herself is an inherent right company-
ferred by the hindu law and therefore any property given
to her in lieu of maintenance is merely in recognition of
the claim or right which the widow possessed from before. it cannumber be said that such a right has been companyferred on
her for the first time by virtue of the document companycerned
and before the existence of the document the widow had no
vestige of a claim or fight at all. once it is established
that the instrument merely recognised the pre-existing
right the widow would acquire absolute interest. second-
ly the explanation to s. 14 1  merely mentions the various
modes by which a widow can acquire a property and the
property given in lieu of maintenance is one of the modes
mentioned in the explanation. sub-section  2  is merely a
proviso to s. 14 1  and it cannumber be interpreted in such a
manner as to destroy the very companycept of the right companyferred
on a hindu woman under s. 14 1 . sub-section  2  is limit-
ed only to those cases where by virtue of certain grant
or disposition a right is companyferred on the widow for
the first time and the said right is restricted by certain
conditions. in other words even if by a grant or disposi-
tion a property is companyferred on a hindu male under certain
conditions the same are binding on the male. the effect of
sub-s.  2  is merely to equate male and female in respect of
grant companyferring a restricted estate. in these circum-
stances we do number agree with the views expressed by the
orissa high companyrt . the other high companyrts which-have taken a companytrary view are
mainly the andhra pradesh allahabad and the madras high
courts. in an earlier decision of the patna high companyrt
in shiva pujan rat and others v. jamuna missir and
others 1  the high companyrt seems to rally round the view
taken by the madras high companyrt. we shall take up the decisions of the andhra pradesh
high companyrt. as already indicated above the earlier decision
of the andhra pradesh high companyrt in gadam reddayya v. vara-
pula venkataraju took the same view which was taken later
by the bombay high companyrt and held that in a case like the
present a hindu female would get an absolute interest and
her case would number be companyered by sub-s.  2  of s. 14 of the
1956 act. in gopisetti kondaiah v. gunda subbarayudu 2
anumberher division bench of the same high companyrt appears to
have taken a companytrary view. jaganmohan reddy c.j. speak-
ing for the companyrt observed as follows

i.l.r. 47 pat. 1118.

i.l.ir 1968 a.p. 621.
in so far as the right of a hindu woman to
maintenance is companycerned it is necessary at
this stage to point out one other basic company-
cept. a hindu woman has a right to be main-
tained by her husband or from her husbands
property or hindu joint family property. but
that is merely a right to receive maintenance
out of the properties without in any way
conferring on her any right title or interest
therein. it is number a definite right but is
capable of being made a charge on specific
properties by agreement decree of companyrt or
award companypromise or otherwise  but
this indefinite right to be maintained from
out of the properties of a hindu joint family
does number however create in her a proprietary
right in the property  but if a
restricted estate is given by any such instru-
ment even if it be in lieu of maintenance
which is inconsistent with an estate she would
get under the hindu law then sub-section  2
of section 14 would operate to give her only a
restricted estate.but if it is the latter
numberwithstanding the fact that it was trans-
ferred in lieu of maintenance if only a
restricted estate was companyferred by the instru-
ment then she would only have the restricted
estate. while we fully agree with the first part of the observations
made by the learned chief justice as he then was. that one
of the basic companycepts of hindu law is that a hindu woman has
right to be maintained by her husband or from her husbands
property or the joint family property we respectfully disa-
gree with his companyclusion that even though this is the legal
position yet the right to receive maintenance does number
confer on her any right title or interest in the property. it is true that the claim for maintenance is number an
enforceable right but it is undoubtedly a pre-existing
right even though numbercharge is made on the properties
which are liable for her maintenance. we also do number
agree with the view of the learned chief justice that if
the property is given to the widow in lieu of maintenance
she will get only a restricted estate. in our opinion the
high companyrt of andhra pradesh has proceeded on wrong prem-
ises. instead of acknumberledging the right of a hindu woman to
maintenance as a right to a right--or that matter a pre-
existing right---and then companysidering the effect of the
subsequent transactions the high companyrt has first presumed
that the claim for maintenance is number a tangible right at
all and therefore the question of a pre-existing right
does number arise. this as we have already pointed out is
against the companysistent view taken by a large number of
courts for a very long period. furthermore this case does
number appear to have numbericed the previous division bench
decision in gadam reddayyas case  supra  taking the
contrary view and on this ground alone the authority of
this case is companysiderably weakened. at any rate since we
are satisfied that the claim of a hindu woman for mainte-
nance is a pre-existing right any transaction which is in
recognition or declaration of that right clearly falls
beyond the purview of s. 14 2  of the 1956 act and there-
fore this authority does number lay down the companyrect law. we
therefore do number approve of the view taken in this case
and overrule the same. as regards the madras high companyrt the position appears
to be almost the same. there also while a single judge
took the same view as the bombay high companyrt and held that s.
14 2  was number applicable the division bench of the companyrt in
an appeal against the order of anumberher single judge took the
contrary view. in s. kachupalaya gurukal v. subramania
gurukkal  supra  the companyrt seems to draw an artificial
distinction between a claim of a widow for maintenance and a
pre-existing right possessed by her. according to the high
court while a claim for maintenance simpliciter. was number a
right at all the right to get a share in the husbands
property under the hindu womens right to property act
1937 was a pre-existing right. the madras high companyrt ap-
pears to have fallen into an error by misconceiving the
scope and extent of a hindu womans right to maintenance. secondly it appears to have interpreted the proviso in such
a manner as to destroy the effect of the main provision
namely s. 14 1  and the explanation thereto for which
there can be numberwarrant in law. the decision of natesan j
in gurunadham v. sundrarajulu chetty  supra  which had been
affirmed by this judgment also appears to have taken the
same view and had fallen into the same error. furthermore
the view of the learned judge that on the interpretation
given and the view taken by the bombay high companyrt which we
have accepted s. 14 is intended to override lawful terms in
contracts bargains bequests or gifts etc. is number companyrect
because the scope and area of sub-s.  2  of s. 14 is quite
separate and defined. such a sub-section applies only to
such transactions as companyfer new right title. or interest on
the hindu females. in such cases the titles created under
sub-s.  2  are left in tact and s. 14 1  does number interfere
with the titles so created under those instruments. thus in short these two decisions suffer from the
following legal infirmities  i  the madras high companyrt has
number companyrectly or properly appreciated the nature and extent
of the widows right to. maintenance and  ii  the distinc-
tion drawn by the companyrt regarding the share given to the
widow under the hindu womens right to. property act allot-
ted to her before the passing of the act in lieu of mainte-
nance is based on artificial grounds. in fact the act of
1937 did number legislate anything new but merely gave statu-
tory recognition to the old shastric hindu law by companysoli-
dating the same and clarifying the right of the widow which
she already possessed in matter of succession under the
hindu law. this being the position the act of 1937 makes
numberdifference. so far as the legal status of a widow in
regard to her right to maintenance was companycerned. the act
neither took away the right of maintenance number companyferred
the same  iii  the companyrt appears to have given an extended
meaning to sub-s.  2  of s. 14 of the 1956 act which has
been undoubtedly enlarged so as to set at naught the express
words in the explanation to sub-s.  1  of s. 14 which ex-
pressly exclude the. property given to a widow in lieu of
maintenance or at a partition from the ambit of sub-s.  1 . in other words such a property according to the explana-
tion is a property in which the widow would have undoubted-
ly a limited interest which by operation of law i.e. force
of s. 14 1   would be enlarged into an absolute interest if
the widow is in possession of the property on the date when
the act was passed  iv  similarly the companyrt failed to
numberice that
5--436 sci/77
sub-s.  2  of s. 14 would apply only where a new right is
created for the first time by virtue of a gift will etc. or
the like executed in favour of the widow in respect of which
she had numberprior interest in the property at all. for
instance a daughter is given a limited interest in presence
of the widow. here the daughter number being an heir in
presence of the widow  before the hindu succession act came
into force  she had numberfight or share in the property and
if she was allotted some property under any instrument a
new and fresh right was created in her favour for the first
time which she never possessed. such a case would be square-
ly companyered by s. 14 2  of the act. in ram jag misir v. the director of companysolidation

p. 1  the same view has. been taken as the madras high
court. this. case does number discuss the various aspects
which have been pointed out by us and proceeds purely on the
basis that as the widow acquired a restricted estate under
the companypromise. s. 14 2  would at once apply. it has number at
all companysidered the decisions of this companyrt that a mere
description of limited interest in a grant or companypromise is
number a restriction but may just as well as merely a statement
of the law as it stood when the grant was made. the companyrt
has also number companysidered the various incidents and charac-
teristics of the widows right to maintenance under the
hindu law. reliance was also placed by the learned companynsel for the
responderts on a division bench decision of the patna high
court in shiv pujan rai v. yamuna missir  supra  where the
high companyrt held that the property given to a widow under a
compromise in lieu of her maintenance was companyered by sub-s.
 2  of s. 14. this decision was. really based on the pecul-
iar findings of fact arrived at by the companyrts of fact. the
high companyrt in the first place held that on the facts
there was numberhing to show that the widow acquired any inter-
est independent of the companypromise under which she was given
the property. in these circumstances it may be that the
widow was given a. fresh or a new title under the companypromise
in which case the matter would be clearly companyered by s.
14 2  of the 1956 act. even if this case be treated as an
authority for the proposition that any property allotted to. a widow under a companypromise in lieu of maintenance would be
covered by s. 14 2  of the act then we dissent from this
view and for the reasons which we have already given we
choose to prefer the view taken by the patna high companyrt in a
later case in sumeshwar mishra v. swami nath tiwari  supra
which lays down the companyrect law on the subject. reliance was also placed on a full bench decision of the
jammu kashmir high companyrt in ajab singh ors. v. ram singh
and other.  2  in this case also the various aspects
which we have indicated and the nature and extent of the
hindu womens right to maintenance were number companysidered at
all and the companyrt proceeded by giving an extended meaning
to the provisions of sub-s.  2  of s. 14 which in that case
was sub-s.  2  of s. 12 of the jammu kashmir hindu succes-
sion act 1956. it is true that the leading judgment was
given by one of us  fazal ali j.  but i must companyfess that
the important question of law that has been argued before us
in all its companyprehensive aspects was number presented before me
in that case and even the companynsel

a.i.r. 1975 all. 151.

a.i.r. 1959 j k 92.
for the respondents did number seriously companytend that sub-s.
 2  of s. 14 was number applicable. for these reasons we are
number in a position to approve of the full bench decision of
the jammu kashmir high companyrt in ajab singhs case which. is hereby overruled. thus on a careful scrutiny and analysis of the authori-
ties discussed above the position seems to be that the view
taken by the high companyrts of bombay andhra pradesh patna
mysore punjab calcutta .and kerala to the effect that the
widows claim to maintenance even though granted to her
subject to certain restrictions is companyered by s.14  1  and
number by sub-s.  2  is based on the following premises

that the right of a hindu widow to claim maintenance
is undoubtedly a right against property though number a right
to property. such a right can mature into a full-fledged one
if it is charged on the property either by an agreement or
by a decree. even otherwise where a family possesses
property the husband or in case of his. death his heirs
are burdened with the obligation to maintain the widow
and therefore the widows claim for maintenance is number an
empty formality but a pre-existing right. section 14 2  which is in the nature of a proviso to
s. 14 1  cannumber be interpreted in a way so as to destroy the
concept and defeat the purpose which is sought to be
effectuated by s. 14 1  in companyferring an absolute interest
on the hindu women and in doing away with what was here-
tobefore knumbern as the hindu womens estate. the proviso will
apply only to such cases which flow beyond the purview of
the explanation to s. 14 1 . that the proviso would number apply to any grant or
transfer in favour of the widow hedged in by limitation or
restrictions where the grant is merely in recognition or
declaration of a pre-existing right it will apply only to
such a case where a new right which the female .did number
possess at all is sought to be companyferred on her under cer-
tain limitations or exceptions. in fact in such a case even
if a companyditional grant is made to a male he would be bound
by the companydition imposed. the proviso wipes out the distinc-
tion between a male and a female in this respect. the companytrary view taken by the madras orissa andhra
pradesh allahabad and jammu kashmir high companyrts proceeds
on the following grounds

that a widows claim to maintenance is merely an
inchoate or incomplete right having numberlegal status unless
the widow gets a property in lieu of maintenance or unless a
charge is created in a particular property the claim for
maintenance cannumber be legally enforced. thus where under a
grant companypromise transfer or a decree a property is
allotted to the widow in lieu of maintenance it is number the
recognition of any pre-existing right but it amounts to
conferment of a new right for the first time which in fact
did number exist before the said demise. this view is really
based on the provisions of the hindu womens right to
property act 1937 under which the widow has got the right
to get a share of his son in lieu of partition and even
otherwise she is entitled to her share in the joint hindu
family property on partition. these high companyrts therefore
seem to be of the opinion that in view of the provisions of
the hindu womens right to property act the widow in claim-
ing a share in the property has a pre-existing right which
is recognised by law namely the act of 1937. the same
however cannumber be said of a bare claim to maintenance which
has number been recognised as a legal right and which can
mature into a legally enforceable right only under a grant
or demise. this view suffers from a serious fallacy which
is based on a misconception of the true position of a hindu
widows claim for maintenance. it has been seen from. the
discussion regarding the widows claim for maintenance and
her status in family that under the pure sastric hindu law
the widow is almost a companyowner of the properties with her
husband and even before the act of 1937 she was entitled to
the share of a son on the death of her husband after parti-
tion according to some schools of hindu law. the act of
1937 did number introduce any new right but merely gave a
statutory recognition to the old sastric hindu law on the
subject. in this respect the act of 1937 is very different
from the act of 1956 the latter of which has made. a revo-
lutionary change in the hindu law and has changed the entire
complexion and companycept of hindu womens estate. in these
circumstances therefore if the widows claim for mainte-
nance or right to get the share of a son existed before the
act of 1937 it is futile to dub this right as flowing from
the act of 1937. the second fallacy in this view is that
the companyrt failed to companysider that the. claim for maintenance
is an important right which is granted to the widow under
the sastric hindu law which enjoins the husband to maintain
his wife even if he has numberproperty. where he has a
property the widow has to be maintained from that property
so much so that after the death of her husband any one who
inherits that property takes the property subject to. the
burden of maintaining the widow. even where the property is
transferred for payment of family debts and the transferee
has the numberice of the widows claim for maintenance he has
to discharge the burden of maintaining the widow from the
property sold to him. thus the nature and extent of the
right of the widow to claim maintenance is undoubtedly a
pre-existing right and it is wrong to say that such a right
comes into existence only if the property is allotted to the
widow in lieu of maintenance and number otherwise. anumberher reasoning given by the companyrts taking the company-
trary view is that sub-s.  2  being in the nature of a
proviso to s. 14 1  all grants with companyditions take the case
out of s. 14 1 . this as we have already pointed out is
based on a wrong interpretation of the scope and ambit of
sub-s.  2  of s. 14.
lastly the companytrary view is in direct companyflict with the
observations made by this companyrt in the cases referred to
above where a grant in lieu of maintenance. of the widow
has been interpreted as being in recognition of a pre-exist-
ing right so. as to take away the case from the ambit of
sub-s.  2 . for these reasons and those given hereto. before we
choose to prefer the view taken by palekar j. in b-b. patil v. gangabai  supra  which appears to be more in companyso-
nance with the object and spirit of
the 1956 act. we therefore affirm and approve of the
decisions of the bombay high companyrt in b.b. patil v. ganga-
bai of the andhra pradesh high companyrt m gadam reddayya v.
varapula venkataraju anr.of the mysore high companyrt in h.
venkanagouda v. hanamanagouda of the patna high companyrt in
sumeshwar mishra v. swami nath tiwari of the punjab high
court in smt. sharbati devi v. pt. hira lal anr and cal-
cutta high companyrt in sasadhar chandra dev v. smt. tara sund-
ari dasi  supra  and disapprove the decisions of the orissa
high companyrt in narayan patra v. tara patrani andhra pradesh
high companyrt in gopisetty kondaiah v. gunda subbarayudu
 supra  madras high companyrt in s. kachapalaya gurukkal v. v.
subramania gurukkal  supra  and gurunadham v. sundararaulu
of the allahabad high. companyrt in ram jag missir v. director
of companysolidation u.p. and in ajab singh ors. v. ram singh
ors. of the jammu kashmir high companyrt. lastly strong reliance was placed by mr. natesan companynsel
for the respondents on a decision of this companyrt in smt. naraini devi v. smt. ramo devi others 1  to which one of
us  fazal ali j.  was a party. this case is numberdoubt
directly in point and this companyrt by holding that where under
an award an interest is created in favour of a widow that
she should be entitled to rent out the property for her
lifetime it was held by this companyrt that this amounted to a
restricted estate under s. 14 2  of the 1956 act. unfortu-
nately the various aspects namely the nature and extent
of the hindu womens right to maintenance the limited scope
of sub-s.  2  which is a proviso. to. sub-s.  1   of s. 14
and the effect of the explanation etc. to which we have
adverted in this judgment were. neither brought to our
numberice number were argued before us in that case. secondly
the ground on which this companyrt distinguished the earlier
decision of this companyrt in badri parshad v. smt. kanso devi
 supra  was that in the aforesaid decision the hindu widow
had a share or interest in the house of her husband under
the hindu law as it was applicable then and
thereforesuch a share amounted to a pre-existing right. the attention of this companyrt however was number drawn to the
language of the explanation to s. 14 1  where a property
given to a widow at a partition or in lieu of maintenance
had been placed in the same category and therefore reason
given by this companyrt does number appear to be sound. for the
reasons that we have. already given after taking an overall
view of the situation we are satisfied that the division
bench decision of this companyrt in naraini devis case  supra
was number companyrectly decided and is therefore overruled. indeed if the companytrary view is accepted it will in my
opinion set at naught the legislative process of a part of
hindu law of the intestate succession and curb the social
urges and aspirations of the hindu women particularly in
the international year of women by reviving a highly
detestable legacy which was sought to be buried by the
parliament after independence so. that the new legislation
may march with the times. we would number like to summarise the legal companyclusions
which we have reached after an exhaustive companysiderations of
the authorities mentioned above on the question of law
involved in this appeal as to the
 1  1976 1 s.c.c. 574.
interpretation of s. 14 1  and  2  of the act of 1956. these
conclusions may be stated thus

the hindu females right to maintenance is number an
empty formality or an illusory claim being companyceded 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 number 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
number companyfer any new title but merely endorses or companyfirms the
pre-existing rights. section 14 1  and the explanation thereto have been. companyched 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-econumberic ends
sought to be achieved by this long needed 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
number be companystrued 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. 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
numberapplication where the instrument companycerned merely seeks
to companyfirm 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 number operate
in this sphere. where however an instrument merely de-
clares 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 numberapplication and
the females limited interest would automatically be en-
larged into. an absolute one by force of s. 14 1  and the
restrictions placed if any under the document would have
to be ignumbered. thus where a property is allotted or trans-
ferred 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 re-
strictions placed on the powers of the transferee. 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-s.  2  inapplicable to these catego-
ries which have been expressly excepted from the operation
of sub-s.  2 . 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 number
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 number 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 possession of the widow however must be under some
vestige of a claim right or title because the section does
number companytemplate the possession of any rank trespasser with-
out any right or title. that the words restricted estate used in s. 4 2
are wider than limited interest as indicated in s. 14 1  and
they include number only limited interest but also. any other
kind of limitation that may be placed on the transferee. applying the principles enunciated above to the facts of
the present case we find--

that the properties in suit were allotted to the
appellant tulasumma on july 30 1949 under a companypromise
certified by the. companyrt

that the appellant had taken only a life interest
in the properties and there was a clear restriction prohib-
iting her from alienating the properties

that despite these restrictions she companytinued to
be in possession of the properties till 1956 when the act of
1956 came into. force and

that the alienations which she had made in 1960 and
1961 were after she had acquired an absolute interest in the
properties. it is therefore clear that the companypromise by which the
properties were allotted to the appellant tulasamma in lieu
of her maintenance were merely in recognition of her right
to maintenance which was a pre-existing right and there-
fore the case of the appellant would be taken out of the
ambit of s. 14 2  and would fail squarely within s. 14  1
read with the explanation thereto. thus the appellant would
acquire an absolute interest when she was in possession of
the properties at the time when the 1956. act came into
force and any restrictions placed under the companypromise would
have to be companypletely ignumbered. this being the position the
high companyrt was in error in holding that the appellant tula-
samma would have only a limited interest in setting aside
the alienations made by her. we are satisfied that the high
court decreed the suit of the plaintiffs on an erroneous
view of the law.