TaxTMI 
TaxTMI 
2006 (9) TMI 631
X X X X Extracts X X X X
X X X X Extracts X X X X
....wara, contended that the property received by Isher Kaur on the death of her husband was as his heir and it was taken by her absolutely and she was competent to deal with the property. It was pleaded that in any event, Section 14(1) of the Hindu Succession Act entitled her to deal with the property as an absolute owner. The appellant countered that Isher Kaur having taken the property under the disposition of her husband, was bound by its terms and she had only a life estate and no competence to donate the property. It was a case to which Section 14(2) of the Hindu Succession Act applied and the limitation on rights imposed by the will was binding on Isher Kaur. Her estate could not get enlarged under Section 14(1) of the Act. 2. The trial court held that the will propounded by the appellant was not genuine. On that basis, it dismissed the suit holding that Isher Kaur had taken the property absolutely on the death of her husband as an heir and under the circumstances she was entitled to donate the property to the Gurdwara. The appellant filed an appeal. Pending the appeal, on 17.6.1996, Isher Kaur died. The lower appellate court held that the will propounded by the appellant was....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... if Ralla Singh had died intestate on 19.3.1977, had no pre-existing right as such. The widow had, at best, only a right to maintenance and at best could have secured a charge by the process of court for her maintenance under the Hindu Adoptions and Maintenance Act in the separate property of her husband. May be, in terms of Section 39 of the Transfer of Property Act, she could have also enforced the charge even as against an alienee from her husband. Unlike in a case where the widow was in possession of the property on the date of the coming into force of the Act in which she had a pre-existing right at least to maintenance, a situation covered by Section 14(1) of the Hindu Succession Act, if his separate property is disposed of by a Hindu male by way of testamentary disposition, placing a restriction on the right given to the widow, the question whether Section 14(2) would not be attracted, was not considered at all by the High Court. It proceeded as if the ratio of V. Tulasamma (supra) would preclude any enquiry in that line. 4. Under Section 18 of the Hindu Adoptions and Maintenance Act, a Hindu wife is entitled to be maintained by her husband during her life time, subject t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sibly proceed against the property even in the hands of a transferee from her husband who had notice of her right to maintenance under the Hindu Adoptions and Maintenance Act. No doubt, but for the devise, she would have obtained the property absolutely as an heir, being a Class I heir. But, since the devise has intervened, the question that arises has to be considered in the light of this position. 6. Learned counsel for the respondent relied heavily on the decision in V. Tulasamma Vs. V. Shesha Reddi (supra). To understand the ratio of that decision, it is necessary to notice the facts that were available in that case. The husband of Tulasamma had died in the year 1931 in a state of jointness with his step-brother, leaving Tulasamma as his widow. Tulasamma approached the court in the year 1944 claiming maintenance against the step-brother of her husband. Her claim was decreed. She put the decree in execution and at the stage of execution, on 30.7.1949, a compromise was entered into. Under the compromise, Tulasamma was allotted the properties but she was to enjoy only a limited interest therein, with no power of alienation. Tulasamma alienated the property, a portion by way of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d: "on a reading of sub-Section (1) with Explanation, it is clear that wherever the property was possessed by a female Hindu as a limited estate, it would become on and from the date of commencement of the Act her absolute property. However, if she acquires property after the Act with a restricted estate, sub-Section (2) applies. Such acquisition may be under the terms of a gift, will or other instrument or a decree or order or award." 8. In Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva and others [(1959) Supp. 1 S.C.R. 968], this Court quoted with approval the following words of Justice P.N. Mookherjee, in Gostha Behari vs. Haridas Samanta [A.I.R. 1957 Calcutta 557, at 559]: "The opening words in "property possessed by a female Hindu" obviously mean that to come within the purview of the section the property must be in possession of the female concerned at the date of the commencement of the Act. They clearly contemplate the female's possession when the Act came into force. That possession might have been either actual or constructive or in any form recognised by law, but unless the female Hindu, whose limited estate in the disputed property is cl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w had obtained possession under a Will. A suit was filed challenging the Will. The suit was compromised. The compromise sought to restrict the right of the widow. This Court held that since the widow was in possession of the property on the date of the Act under the will as of right and since the compromise decree created no new or independent right in her, Section 14(2) of the Act had no application and Section 14(1) governed the case, her right to maintenance being a pre-existing right. In Mst. Karmi Vs. Amru & Ors. [AIR 1971 SC 745], the owner of the property executed a will in respect of a self-acquired property. The testamentary succession opened in favour of the wife in the year 1938. But it restricted her right. Thus, though she was in possession of the property on the date of the Act, this Court held that the life estate given to her under the will cannot become an absolute estate under the provisions of the Act. This can only be on the premise that the widow had no preexisting right in the self-acquired property of her husband. In a case where a Hindu female was in possession of the property as on the date of the coming into force of the Act, the same being bequeathed to h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Act, or it has no scope for operation. Or, in other words, even without calling in aid Section 14(1) of the Act, she gets an absolute estate. 13. An owner of property has normally the right to deal with that property including the right to devise or bequeath the property. He could thus dispose it of by a testament. Section 30 of the Act, not only does not curtail or affect this right, it actually reaffirms that right. Thus, a Hindu male could testamentarily dispose of his property. When he does that, a succession under the Act stands excluded and the property passes to the testamentary heirs. Hence, when a male Hindu executes a will bequeathing the properties, the legatees take it subject to the terms of the will unless of course, any stipulation therein is found invalid. Therefore, there is nothing in the Act which affects the right of a male Hindu to dispose of his property by providing only a life estate or limited estate for his widow. The Act does not stand in the way of his separate properties being dealt with by him as he deems fit. His will hence could not be challenged as being hit by the Act. 14. When he thus validly disposes of his property by providing for a li....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rty by a Will. This is permissible as he has the capacity to so dispose it of. He is also enabled to do so by Section 30 of the Hindu Succession Act. He is thus entitled to interfere with the succession that would have ensued if he had died intestate. In the context of the will executed by him the question is what has he bequeathed to his wife and whether he had placed any restriction on her estate so bequeathed. The corollary would be whether the appellant is entitled to the decree sought for by him in the context of Section 14(2) of the Hindu Succession Act. 17. We shall now construe the will of Ralla Singh. He says in the will that he is 73 years old. He has no progeny. Only his wife and his two nephews (sister's son) are alive and he wants to dispose of the property during his life time. He was absolute owner of the properties. He wants to provide for management of the properties in such a manner that after his death his wife so long as she remains alive will be the absolute owner and party in possession of all his properties and after her death, the rights over the property would be inherited by his two nephews. He is hence executing the will in favour of his wife in respec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely "on" or "after" or "at" A's death, A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B." 20. Thus the first attempt must be to reconcile all the clauses in the will and give effect to all of them. When we make that attempt in the context of what this Court had indicated in the decision quoted above, we find that the apparent absolute estate given to his wife by the testator is sought to be cut down by the stipulations that the property must go to his nephews after th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....carding of the will or the effect of it. 23. It was then argued that a substantial part of the properties had been given to the plaintiff on his filing the Suit No. 485 of 1977. An extent of 77 bighas and 9 biswas of land was taken by the nephews leaving the rest for Isher Kaur. The validity or the enforceability of the will executed by Ralla Singh and the bequest flowing therefrom cannot be held to be affected by the filing of the suit No. 485 of 1977 or the obtaining of the 77 bighas and 9 biswas of the land by the plaintiff during the life time of Isher Kaur. The defendant Gurdwara is a donee from Isher Kaur and its title would depend on the title Isher Kaur had. Obviously, Isher Kaur could not confer a larger title than she herself had. On a true construction of the will we have found that Isher Kaur had only a life estate in the properties. Hence, the gift executed by her cannot survive the cessation of the life estate or stand in the way of the ultimate beneficiary recovering possession on the strength of the bequest in his favour on the coming to an end of the intervening life estate. 24. Thus, on a consideration of all the relevant aspects we have no hesitat....