PETITIONER:
GUMMALAPURA TAGGINA MATADAKOTTURUSWAMI
Vs.
RESPONDENT:
SETRA VEERAVVA AND OTHERS
DATE OF JUDGMENT:
19/12/1958
BENCH:
IMAM, SYED JAFFER
BENCH:
IMAM, SYED JAFFER
DAS, S.K.
KAPUR, J.L.
CITATION:
1959 AIR 577 1959 SCR Supl. (1) 968
CITATOR INFO :
R 1962 SC1493 (15)
R 1966 SC 216 (2)
E 1967 SC1786 (9,16)
R 1970 SC1963 (6)
R 1977 SC 164 (8)
RF 1977 SC1944 (3)
E&D 1987 SC1493 (7)
RF 1991 SC 663 (3,15)
D 1991 SC1581 (8,11)
ACT:
Hindu Law-Widow in Possession of husband’s property-Adopted
son getting into possession-Adoption invalid-Whether widow
is in constructive Possession-”Property Possessed by a
female Hindu “, Meaning of-Hindu Succession Act, 1956 (30 of
1956), s. 14.
HEADNOTE:
Sub-section (1) of s. 14 Of the Hindu Succession Act, 1956,
provided: “ Any property possessed by a female Hindu,
whether acquired before or after the commencement of this
Act, shall be held by her as full owner thereof and not as a
limited owner.”
A suit instituted by the nearest reversioner of K for a
declaration that the adoption made by K’s widow was invalid,
was dismissed -and during the pendency of the appeal filed
against the decree dismissing the suit, the Hindu Succession
Act, 1956, came into force. At the hearing of the appeal
the respondent raised the preliminary objection that even if
the adoption were held to be invalid, the appellant’s suit
must fail in view of the provisions of S. 14 Of the Act
under which K’s widow, who was a party to the suit and the
appeal, would be entitled to a full ownership of her
husband’s properties, while it was urged for the appellant
that s. 14 Of the Act did not apply to the facts of the case
because the properties were not in, the possession of K’s
widow, but were only with the adopted son at the time the
Act came into force.
Held, that the word “possession” in s. 14 Of the Hindu
Succession Act, 1956, is used in the widest connotation and
it may be either actual or constructive or in any form
recognised by law.
969
Gostha Behari v. Haridas Samanta, A.I.R. 1957 Cal. 557,
approved.
In the present case, if the adoption was invalid K’s widow
would be the full owner of K’s estate, and even if it be
assumed that the adopted son was in actual possession of the
estate, his possession was merely permissive and K’s widow
must be regarded as being in constructive possession of it
through him. Accordingly, s. 14 was applicable and as K’s
widow became a full owner of her husband’s estate, the
appellant’s suit was not maintainable.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 120 of 1955.
Appeal from the judgment and decree dated March 25, 1949, of
the Madras High Court in Appeal No. 55 of 1946, arising out
of the judgment and decree dated November 26, 1945, of the
Court of the District Judge of Bellary in Original Suit No.
39 of 1943.
A. V. Viswanatha Sastri and K. R. Chaudhury for B. K. B.
Naidu, for the appellant.
K.N. Rajagopala Sastri and M. S. K. Sastri, for the
respondents.
1958. December 19. The Judgment of the Court was delivered
by
IMAM, J.-This appeal is before us on a certificate granted
by the High Court as according to that Court a substantial
question of law arose in the case which was stated by it to
be ” Is the adoption of the second defendant invalid, as the
approval or consent of the five trustees mentioned in
paragraph 14 of the will of Kari Veerappa, Exbt. P-2(a) was
not obtained; and is the authority to adopt at an end if any
one of those five persons did not accept the trusteeship or
died before the adoption or refused to give their approval
“. In view of certain matters about to be stated, the
question of law as propounded by the High Court does not
require to be considered.
Kari Veerappa was the last male owner of the estate
mentioned in his will, Exbt. P-2(a), which he executed on
October 10, 1920. Under this will he authorised his wife
Setra Veeravva, first defendant, to adopt a son for the
purpose of continuation of his family as
970
he had no issue. The authority to adopt was in the
following terms:
“ I have given her permission to adopt as many times as
would be necessary, should the previous adoption be
unsuccessful. But Veeravva must adopt only a boy approved
by the respectable persons appointed by me in paragraph 14;
should Veeravva die before -making any adoption, the persons
becoming trustees should arrange for the adoption of a boy
for the continuation of my family in accordance with my
kulachara (family usage)
At this stage it is unnecessary to refer to the other
provisions of the will of Kari Veerappa. This gentle. man
died on October 23, 1920. After his death, his widow made
two attempts to adopt a son in accordance with his will.
The first attempt was in 1939 which did not accomplish the
purpose of the will as the person alleged to have been
adopted died. The validity of this adoption was being
questioned, but as the boy said to have been adopted had
died, effects to dispute the adoption did not materialise.
Veeravva thereafter, on October 11, 1942, adopted second
defendant, Sesalvada Kotra Basayya. Two documents in this
connection are on the record. The first document is Exbt.
D-25 dated the 18th of September, 1942, which was a
registered agreement to adopt the second defendant. The
second document is also a registered document, which is
described as the deed of adoption and is dated June 23,
1943. This clearly states that on October 11, 1942,
Veeravva had adopted the 2nd defendant. Reference was also
made in this document to the agreement of September 18,
1942. The appellant claiming to be the nearest reversioner
of Kari Veerappa filed the present suit asking for a
declaration that the adoption of the second defendant by
Veeravva was invalid and not binding on the appellant or the
other reversioners to the estate of the late Kari Veerappa.
The suit filed by the appellant was heard by the District
Judge of Bellary who dismissed it. The appellant- appealed
to the High Court of Madras. His appeal was dismissed and
the decision of the District
971
Judge was substantially affirmed. The High Court did not
allow compensatory costs granted by the District Judge, nor
did it agree with his finding that the appellant had failed
to prove the relationship he had propounded and that lie was
-not a reversioner at all, far less the nearest reversioner.
In the opinion of the High Court, the appellant was a
relative and a reversioner, though he had not proved that he
was the nearest reversioner alive at the time the appeal was
heard and that he need not prove this until he actually
sought to recover possession of the property after
Veeravva’s death.
When this appeal came on for hearing the learned Advocate
for the respondents took a preliminary objection that the
suit filed by the plaintiff must in any event fail, having
regard to the provisions of s. 14 of the Hindu Succession
Act, 1956 (30 of 1956), hereinafter referred to as the Act.
Hence the present appeal arising out of that suit must also
fail. It was contended on behalf of the respondents that
either there was a valid adoption or there was not. If
there was a valid adoption and the decisions of the High
Court and the District Judge on this question were correct,
then obviously the suit of the appellant must be dismissed.
If, on the other hand, it was found that the adoption of the
second defendant by Veeravva was either invalid or, in fact,
had not taken place, then under the provisions of s. 14 of
the Act, Veeravva became the full owner of her husband’s
estate and was not a limited owner thereof. Consequently,
the appellant’s suit was not maintainable. In, view of this
submission we are of the opinion that the point raised by
way of preliminary objection must first be considered and
decided. It is well settled that an appellate court is
entitled to take into consideration any change in the law
(vide the case of Lachmeshwar Prasad Shukul v. Keshwar Lal
Chaudhuri(1).
Section 14 of the Act states:-
“ 14(1) Any property possessed by a female Hindu, whether
acquired before or after the commencement of this Act, shall
be held by her as full owner thereof and not as a limited
owner.
(1) [1940] F.C.R. 84.
972
Explanation.-In this sub-section, ” property” includes both
movable and immovable property acquired by a female Hindu by
inheritance or devise, or at a partition, or in lieu of
maintenance or arrears of maintenance, or by gift from any
person, whether a relative or not, before, at or after her
marriage, or by her own skill or exertion, or by purchase or
by prescription, or in any other manner whatsoever, and also
any such property held by her as stridhana immediately
before the commencement of this Act.
(2)Nothing contained in sub-section (1) shall apply to any
property acquired by way of gift or under a will or any
other instrument or under a decree or order of a civil court
or under an award where the terms of the gift, will or other
instrument or the decree, order or award prescribe a
restricted estate in such property.”
On behalf of the appellant it was urged that s. 14 of the
Act did not apply to the facts of the present case because
the estate of Veerappa was not in possession of his widow
Veeravva but was in possession of the second defendant at
the time the Act came into force and, secondly, because
under sub-s. (2) of s. 14 Veeravva got a restricted estate
under the will Exbt. P-2(a) and the agreement to adopt,
Exbt. D-25. It was submitted that the widow , s power of
adoption did not depend on her ownership of the estate of
her husband. That power in the present case was derived
under the Hindu law either from the authority conferred by
her husband or the consent of his agnates. The Act did not
enlarge her power of adoption and did not render an invalid
adoption made by her immune from attack by the reversioners
during her life time. The act of Veeravva in the present
case was to bring in a stranger. The appellant as a rever-
sioner was, therefore, entitled during the life time of
Veeravva to bring the present suit to obtain a declaration
that the adoption of the second defendant was invalid.
The question raised by the preliminary objection taken by
the respondents must be considered an the assumption that
the adoption of the second defendant
973
was invalid. The provisions of a. 14 of the Act would not
arise for consideration, if the second defendant had been
validly adopted. It is necessary, therefore, to determine
whether the provisions of s. 14 apply to the facts of the
present case.
It was strongly urged on behalf of the appellant that the
words ” any property possessed by a female Hindu ” in s. 14
of the Act referred to actual possession of the property
whether the property was acquired before or after the Act
came into force. This was a condition precedent to the
applicability of the provisions of s. 14 to the present
case. Since the Act came into force on June 17, 1956, and
the decision of the High Court was given on March 25, 1955,
the question as to who was in actual possession of the
estate of Veerappa did not arise for consideration on the
case of the appellant set out in his plaint. The appellant
should accordingly be given an opportunity to have a finding
recorded on this question after the taking of evidence in
that respect. On behalf of the respondents it was urged
that the words ” any property possessed by a female Hindu ”
did not refer merely to actual physical possession only but
to ownership and possession in law as well.
It was further urged on behalf of the respondents that even
if it be assumed that the words ” possessed by a female
Hindu ” mean actual possession then, in the present case, it
had been proved that Veeravva was in actual possession of
the estate of Veerappa when the Act came into force. It
could not be disputed that on the death of Veerappa,
Veeravva came into possession of his estate and that she
remained in possession at least until 1942 when the adoption
of the second defendant is said to have taken place. But
even on the adoption of the second defendant, the agreement
to adopt dated September 18, 1942, stated that Veeravva was
to remain in possession of her husband’s estate during her
life time in spite of the adoption. In the written
statement filed by Veeravva and the second defendant it was
clearly stated in para. 6 thereof that Veeravva came into
possession of her husband’s property and that she recovered
possession
974
of the property covered by the decree in 0. S. 20 of 1921 on
the file of the Subordinate Judge’s Court, Bellary, and that
she had been in sole possession of the said property up-to-
date and that although she had adopted the second defendant
on October 11, 1942, it was subject to retention of the
enjoyment, possession and management by her of her husband’s
property during her life time. An affidavit had been filed
in this Court by the second defendant in which he has
clearly admitted that Veeravva is still in possession of his
adoptive father’s estate in pursuance of the agreement of
September 18, 1942. This was an admission against his own
interest by the second defendant which he was not likely to
make unless it was a fact that Veeravva was in possession of
the estate since her husband’s death up to the present. In
answer to the affidavit of the second defendant and Veeravva
that she was in actual possession, the appellant had failed
to file an affidavit with any clear assertion that to his
knowledge Veeravva was not in Possession. The affidavit
filed by the appellant was in the nature of submissions made
to the Court rather than an affidavit in which facts to his
knowledge were asserted. In para. 2 he had made the
significant statement ” I understand that the possession of
the suit properties has been and is now, in truth and in
fact, with the alleged adopted son, the second petitioner.
He is in possession of these properties and is dealing with
them.” He did not disclose bow he came to under. stand this.
He certainly did not assert that all that was stated in
para. 2 was to his knowledge. As an alternative, the
appellant in para. 4 of his affidavit had submitted ,If I
succeed in proving that the adoption is not true and valid,
the petitioners cannot turn round and say that the
possession of the first petitioner is that of a widow of an
intestate and invoke the provisions of s. 14 of the
Succession Act.” He had further submitted in this paragraph
that, even on the case of the respondents set out in their
petition for adding additional grounds, Veeravva’s estate
was divested by the adoption, and as- she came into
possession by reason of the ante-adoption agreement
975
Exbt. D-25, s. 14 of the Act was not applicable. It seems
to us that if it were permissible to decide the question of
Veeravva’s possession on only the affidavits before us, we
would find no difficulty in holding that she was in
possession of her husband’s estate when the Act came into
force. It is to be remembered, however, that this question
has arisen now and the appellant has had no real opportunity
to establish his assertion that the second defendant is in
actual possession and not Veeravva. It is necessary
therefore to consider the true scope and effect of the
provisions of sub-s. (1) of a. 14 of the Act. If the words
” possessed by a female Hindu ” occurring therein refer only
to actual physical possession, it may be necessary to call
for a finding on the question of such possession; if, on the
contrary, these words have a wide connotation and include
constructive possession or possession in law, the
preliminary objection can be determined on the footing that
Veeravva was in such possession at the relevant time.
The provisions of s. 14 of the Act have been the subject of
scrutiny and interpretation by various High Courts. In the
case of Rama Ayodhya Missir v. Raghunath Missir (1) and in
the case of Mt. Janki Kuer v. Chhathu Prasad (2) the Patna
High Court took the view that the effect of ss. 14 and 15 of
the Act was that a reversioner recognised as such under the
Hindu law was no more a reversioner, as a female Hindu
possessing any property, whether acquired before or after
the commencement of the Act, held not a limited estate but
an absolute estate therein, and after the coming into force
of the Act, he had no right of reversion or any kind Of Spes
successionsis. The High Courts of Calcutta, Andhra Pradesh
and Madhya Pradesh have taken a view which does not support
the view expressed by the Patna High Court in the aforesaid
cases, The High Court of ‘Madhya Pradesh in the case of Mt.
Lukai v. Niranjan (3) dissented from the decisions of the
Patna High Court in the above-mentioned cases.’ Indeed, the
Patna High Court in the case of
(1)A.I.R. 1957 Pat. 480. (2) A.I.R. 1957 Pat. 674.
(3) A.I.R. 1058 Madh. Pra. 160.
976
Harak Singh v. KailaSh Singh (1) overruled its previous
decisions referred to above, and rightly pointed out that
the object of the Act was to improve the legal status of
Hindu women, enlarging their limited interest in property
inherited or held by them to an absolute interest, provided
they were in possession of the property when the Act came
into force and, therefore, in a position to take advantage
of its beneficial provisions; but the Act was not intended
to benefit alienees who with their eyes open purchased the
property from the limited owners without justifying
necessity before the Act came into force and at a time when
the vendors had only a limited interest of Hindu women.
In the case before us, the essential question for con-
sideration is as to how the words “any property possessed by
a female Hindu, whether aquired before or after the
commencement of this Act ” in a. 14 of the Act should be
interpreted. Section 14 refers to property which was either
acquired before or after the commencement of the Act and
that such property should be possessed by a female Hindu.
Reference to property acquired before the commencement of
the Act certainly makes the provisions of the section re-
trospective, but even in such a case the property must be
possessed by a female Hindu at the time the Act came into
force in order to make the provisions of the section
applicable. There is no question in the present case that
Veeravva acquired the property of her deceased husband
before the commencement of the Act. In order that the
provisions of s. 14 may apply to the present case it will
have to be further established that the property was
possessed by her at the time the Act came into force. It
was the case of the appellant that the estate of Veerappa
was in actual possession of the second defendant and not
Veeravva at the relevant time. On behalf of the respondent
it was urged that the words ” possessed by ” had a wider
meaning than actual physical possession, although physical
possession may be included in the expression.
(1) A.I.R. 1958 Pat. 581.
977
In the case of Gaddam Venkayamma v. Gaddam Veerayya (1)
Viswanatha Sastri, J., with whom Satyanarayana Raju, J.,
agreed, expressed the opinion that “the word ‘ possessed’ in
s. 14 refers to possession on the date when the Act came
into force. course, possession referred to in s. 14 need not
be actual physical possession or personal occupation of the
property by the Hindu female-but may be possession in law.
The possession of a licensee, lessee or a mortgagee from the
female owner or the possession of a guardian or a trustee or
an agent of the female owner would be her possession for the
purpose of s. 14. The word ” possessed ” is used in s. 14
in a broad sense and in the context possession means the
state of owning or having in one’s hands or power. it
includes possession by receipt of rents and profits. “ The
learned Judges expressed the view that even if a trespasser
were in possession of the land belonging to a female owner,
it might conceivably be regarded as being in possession of
the female owner, provided the trespasser had not perfected
his title. We do not think that it is necessary in the
present case to go to the extent to which the learned Judges
went. It is sufficient to say that possessed ” in s. 14
is used in a broad sense and in the context means the state
of owning or having in one’s hand or power. In the case of
Gostha Behari v. Haridas Samanta (2), P. N. Mookherjee, J.,
expressed his opinion as to the meaning of the words “ any
property possessed by a female Hindu “ in the following
words:-
“The opening words in ” property possessed by a female Hindu
obviously mean that to come within the purview of the
section the property must be in possession of the female
concerned 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 claimed to have been transformed into
(1) A.I.R. 1957 Andh. Pra. 280.
123
(2) A.I.R. 1957 Cal. 557, 559.
978
absolute estate under this particular section, was at least
in such possession, taking the word ” possession “ in its
widest connotation, when the Act came into force, the
section would not apply-”.
In our opinion, the view expressed above is the correct view
as to how the words ” any property possessed by a female
Hindu ” should be interpreted. In the present case if the
adoption was invalid, the full owner of Veerappa’s estate
was his widow Veeravva and even if it be assumed that the
second defendant was in actual possession of the estate his
possession was merely permissive and Veeravva must be
regarded as being in constructive possession of it through
the second defendant. In this situation, at the time when
the Act came into force, the property of Veerappa must be
regarded in law as being possessed by Veeravva.
It was suggested that according to the will of Veerappa,
Exbt. P_2(a), in the properties mentioned in para. 1-of
that will, Veeravva got only a restricted estate. The
provisions of para. 4 of the will, however, make it clear
that they would come into force only if the trustees
mentioned in the will and Veeravva should disagree. No
material was shown to us that, in fact, the trustees and
Veeravva had disagreed and that the provisions of para. 4
were given effect to. Paragraph 12 of the will also showed
that if the adoption was invalid, the property devolved on
Veeravva as in intestacy. It is clear, therefore, that the
provisions of para. 4 are of no assistance to the appellant
in applying the provisions of sub-s. (2) of s. 14 of the
Act. Reference was also made to the contents of the
agreement, Exbt. D – 25, dated September 18, 1942, in this
connection. It is clear.’ however, that by this agreement
no estate was conferred on Veeravva and she did not thereby
acquire any estate, much less a restricted estate. All that
this document stated was that there was an agreement between
the guardians of the boy to be adopted and Veeravva that
even if the boy is adopted, Veeravva would remain in
possession and enjoyment of her husband’s estate during her
life time. In our opinion, there is
979
no material on the record by which it can reasonably be said
that the provisions of sub-s. (2) of s. 14 of the Act
applied to the present case.
It was urged that the act of Veeravva in adopting the second
defendant was to bring in a stranger and this action of hers
could be questioned by a reversioner, as any alienation made
by her, during her life time. Reference was made to s. 42
of the Specific Relief Act, Illustration (f). In our
opinion, this is of no avail to the appellant, because
Illustration (f) obviously refers to a Hindu widow’s estate
and has no reference to a full owner. The right of a
reversioner as one of the heirs under s. 42, Specific Relief
Act, is limited to the question of preserving the estate of
a limited owner for the benefit of the entire body of
reversioners; but as against a full owner, the reversioner
has no such right. In our opinion, under the Act Veeravva
becoming a full owner of her husband’s estate, the suit
could not succeed and the appeal must accordingly fail.
In our opinion, the appellant’s suit was not maintainable,
having regard to the provisions of s. 14 of the Act, even if
it be assumed that there was no valid adoption of the second
defendant. The appeal accordingly fails and is dismissed
with costs.
Appeal dismissed.