Delhi High Court
Sh. Dalip Kumar & Anr. vs M/S Shree Gopal Jewelers & Ors. on 1 August, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.198 /2016 and CM No. 27241/2010 (Stay)
% 1st August, 2016
SH. DALIP KUMAR & ANR. ...... Appellants
Through: Mr. Rajiv Bajaj, Advocate.
VERSUS
M/S SHREE GOPAL JEWELERS & ORS. ...... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular Second Appeal under Section 100 of the Code of
Civil Procedure, 1908 (CPC) is filed by the appellants/plaintiffs against the
concurrent Judgments of the courts below; of the Trial Court dated
20.02.2015 and the First Appellate Court dated 28.04.2016; by which the
suit filed by the appellants/plaintiffs for permanent injunction and
cancellation of the Sale Deed dated 17.01.1996 executed by their mother
Smt. Pushpa Rani in favour of the respondents/defendants has been
dismissed.
2. The facts of the case are that the entire property comprising of
suit property being Shop No.1, Ground Floor, House no.22-23/2744,
Beadonpura, Karol Bagh, New Delhi was owned by Late Sh. Mohan Lal
husband of Smt. Pushpa Rani. Late Sh. Mohan Lal executed his WILL
dated 16.10.1970; Ex.PW2/1, bequeathing the suit property.
3. The case of the appellants/plaintiffs was that under the Will
only lifetime interest was given and therefore on the death of their mother
Smt. Pushpa Rani, the appellants/plaintiffs would become the owner of the
property and hence during her lifetime she has no legal right to execute the
Sale Deed dated 17.01.1996 in favour of the respondents/defendants. The
relevant portion of the Will reads as under:-
"......I am executing this WILL in respect of the aforesaid entire
properties, and express till I am alive, I shall remain owner of H.No.22,
23/2744 Beadonpura, Karol Bagh, New Delhi and Housing property
situated in Kuch Barkat Ram, Ferozepur city (Pb) and the shop of cloth
business known as Banbasi Stores 2738, Ajmal Khan Road, Karol Bagh,
New Delhi and would have right to deal with the properties i.e. House
situated in Kucha Barkat Ram, Ferozepur City (Pb) H.No.22, 23/2744
Beadonpura, Karol Bagh, New Delhi and Banbasi Stores, Ajmal Khan
Road, Karol Bagh, New Delhi and to withdraw any amount from the
shop. After my death, my wife Smt. Pushpa Rani would be the owner of
my move-able and immoveable properties i.e. 1/4 share in the shop
known as Banbasi Store and other amount lying with the shop and all
other things. Smt. Pushpa Rani would provide a room to Smt. Krishna
Wanti my 2nd wife in House No.22-23/2744 Beadon Pura, Karol Bagh
New Delhi and inspite of it Pushpa Rani will also give her a sum of
Rs.50/- per month and this will continue till the time of her death. In
case Krishna Wanti and Pushpa Rani wanted to live together, they may,
in those circumstances there is no need of maintenance but it would
depend on Krishna consent. Smt. Krishna Wanti shall have no right to
let out the alleged room and she will use the room for her residence only.
After the death of Pushpa Rani my both sons S/Shri Dalip Kumar, Vimla
Rai would be owner the owner in equal ratio of my properties i.e.
Banbasi Stores, H.No.22, 23/2744 Beadonpura, Karol Bagh, New Delhi
and share of House situated in Kucha Barkat Ram, Ferozepur City (Pb)
and etc. etc. My both daughters Smt. Shashi Bala Bhasin and Smt. Vijay
Rani Sehgal would have no right, concern or title with my properties i.e.
H.No.22-23/2744 Beadon Pura, Karol Bagh, New Delhi, 1/4 share of
shop known as Banbasi Stores and house situated in Kucha Barkat Ram
Ferozepur City & cash etc. etc. and they would be treated as debarred
from these properties. In case my any daughter file any proceedings to
have her share from the aforesaid properties that would be treated as null
and void. My wife Smt. Krishna Wanti shall have no right in my
properties or money or share of the shop which has been referred above
in the WILL nor shall have any right to claim any thing and would be
entitled to have a room (residential room) and a sum of Rs.50/- for her
maintenance by virtue of this WILL.
NOW this Deed of WILL is made for record and to be utilised in future
at the relevant time. 16-10-70...." (underlining added)
4. There are two issues which are called for decision in the
present case. The first is whether the language of the Will in question is to
be read giving only life-estate/life-interest to Smt. Pushpa Rani with
remainder to the appellants/plaintiffs who are the sons of Smt. Pushpa
Rani and Late Sh. Mohan Lal being the appellants/plaintiffs. The second
issue is that even if the Will gives a life estate to Smt. Pushpa Rani,
whether the life estate does not convert itself into a full estate in view of
the Section 14(1) of the Hindu Succession Act, 1956.
5. I have already reproduced the relevant portion of the Will
above and this Will does not use the term life-estate or life-interest. As per
the Will the subject property in its entirety, including the tenanted shop no.
1 sold to the defendants/respondents, was bequeathed by giving full
ownership to Smt. Pushpa Rani wife of Late Sh. Mohan Lal. Absolute
ownership is bequeathed and in this regard the courts below have rightly
held that this is so because there is no restriction as per the Will that Smt.
Pushpa Rani is not entitled to sell etc the same. The fact that such
language does not result in creating a life estate in favour of the beneficiary
but it gives full ownership is no longer res integra and this has been so
held by the Supreme Court in the recent judgment in the case of Sadaram
Suryanarayana and Another Vs. Kalla Surya Kantham and Another
(2010) 13 SCC 147. I have had an occasion to examine the similar facts in
the case of Smt. Suman Lata Vs. Sh. Amit Kumar and Anr., RSA No.
395/2015 decided recently on 18.07.2016 wherein I have relied upon the
ratio of the Sadaram Suryanarayana's case. The relevant paragraphs of
the judgment in the case of Smt. Suman Lata (supra) are paras 4 to 9
which read as under:-
"4. The other issue which calls for determination is with respect to
interpretation of the Will whose relevant portion is reproduced by the
first appellate court in para 37 of the judgment as reproduced above. The
issue is that whether such Will gives only life interest to the
appellant/plaintiff alongwith her husband Sh. Raj Kumar or does the
same give absolute ownership interest to the appellant/plaintiff and her
husband Sh. Raj Kumar in the suit property, and, even if absolute interest
is created by the Will of late Sh. Sant Ram Sachdev in favour of the
appellant/plaintiff and her husband Sh. Raj Kumar whether still there is
scope for giving effect to the later part of the Will which states that „after
the death‟ of the appellant/plaintiff and her husband Sh. Raj Kumar, the
suit property and all other properties of late Sh. Sant Ram Sachdev will
be owned by respondent no.1 and his brother Sh. Krishan Kumar.
5. On behalf of the respondent no.1/defendant no.1 it was sought to
be argued that the subject Will created only a life interest in favour of the
appellant/plaintiff and not absolute ownership. It is argued that in any
case as per Section 88 of the Indian Succession Act, 1925 since the later
part of the Will gives absolute interest in the suit property to the
respondent no.1/defendant no.1 and his brother Sh. Krishan Kumar, this
clause is inconsistent/repugnant with the earlier part of the Will giving
absolute interest to the appellant/plaintiff and her husband Sh. Raj Kumar
and therefore the later clause giving absolute ownership of the suit
property to the respondent no.1/defendant no.1 and Sh. Krishan Lal will
prevail as per Section 88 of the Indian Succession Act, 1925 which reads
as under:-
"Section 88. The last of two inconsistent clauses prevails.-Where
two clauses of gifts in a Will are irreconcilable, so that they cannot
possibly stand together, the last shall prevail."
6. The law with respect to interpretation of the Will has been
referred to by the first appellate court in its judgment by referring to the
judgment of the Supreme Court in the case of Navneet Lal @ Rangi Vs.
Gokul & Ors. (1976) 1 SCC 630. The relevant paras of the first
appellate court dealing with what is the law on the subject interpretation
of the Will as also the observations of the Supreme Court in the case of
Navneet Lal @ Rangi (supra) are contained in para 19 to 22 of the
judgment of the first appellate court and which paras read as under:-
"19. The general rule of construction in interpreting a 'Will', is first
to ascertain by an examination of the entire Will what is the nature
and the grammatical meaning of the language used by the testator.
The entire instrument and all its parts are to be construed in relation to
each other and so as, if possible, to form one consistent whole.
20. The fundamental and foremost rule while reading and
interpreting the Will, is that the intention of the testator should be
found from the recitals/clauses mentioned by him in his Will and the
effect should be given to it as far as possible for the construction of
the Will. Every case in hand should be looked into independently
and that the other cases will be of little assistance because
the different clauses in different Wills will always differ from case to
case.
21. In Navneet Lal @ Rangi Vs. Gokul & Ors. 1976(1)SCC630,
The Hon'ble Supreme Court Of India in para 8 has laid down five
rules while construing/interpreting a Will and observed as under-:
(1) In construing a document whether in English or in
vernacular the fundamental rule is to ascertain the intention from
the words used; the surrounding circumstances are to be
considered; but that is only for the purpose of finding out the
intended meaning of the words which have actually been
employed.
(2) In construing the language of the will the court is entitled to
put itself into the testator's armchair (Venkata Narasimha v.
Parthasarathy) (1913) 41 Ind App 51 at p.73 (PC) and is bound
to bear in mind also other matters than merely the words used. It
must consider the surrounding circumstances, the position of the
testator, his family relationship, the probability that he would
use words in a particular sense.... But all this is solely as an aid
to arriving at a right construction of the Will, and to ascertain
the meaning of its language when used by that
particular testator in that document. [Venkata Narasimha's
case (supra) and Gananmbal Ammal v. T. Raju Ayyar: (AIR
1951 SC 103)]
(3) The true intention of the testator has to be gathered not by
attaching importance to isolated expressions but by reading the
will as a whole with all its provisions and ignoring none of
them as redundant or contradictory (Raj Bajrang
Bahadur Singh v. Bakhtraj Kuer): ( AIR 1953 SC 7)
(4) The court must accept, if possible, such construction
as would give to every expression some effect rather than that
which would render any of the expressions inoperative. The
could will look at the circumstances under which the testator
make his will, such as the state of his property, of his family and
the like. Where apparently conflicting dispositions can be
reconciled by giving full effect to every word used in a
document, such a construction should be accepted
instead of a construction which would have the effect of
cutting down the clear meaning of the words used by the
testator. Further, where one of the two reasonable constructions
would lead to intestacy, that should be discarded in favour of a
construction which does not create any such hiatus. (Pearey Lal
vs. Rameshwar Das): (AIR 1983 SC 1703).
(5) It is one of the cardinal principles of construction of
Wills that to the extent that it is legally possible effect should be
given to 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. (Ramachndra Shenoy v. Mr. Hilda
Brite: (AIR 1964 SC 1323)
22. While interpreting a 'Will', it is the primary duty of a court is to read
the Will as a whole and ascertain from the language of the recitals therein
as to what was the intention of the testator, that is to construe the Will. In
interpreting the 'Will' the regard must have to be, not merely to the words
used but to the evident intention of the testator. However, those
intentions must be ascertained by the proper construction of the words
he uses, and once ascertained, they must not be departed from."
(underlining added)
7. Learned counsel for the respondent no.1/defendant no.1 has also
placed reliance upon the judgment of the Supreme Court in the case of
Kamla Devi Vs. Prabhawatti Devi (Smt.) and Others (2001) 10 SCC
602 to argue that a Will which contains clauses such as found in the facts
of the present case, it should be held that there is no repugnancy and
what subsists on the death of the persons to whom absolute ownership is
bequeathed in the first instance would be available to those later persons
in the eventuality of death of first beneficieries as stated in the Will. The
relevant paras of this judgment are para 7 and 8 which read as under:-
"7. The other part of the submission is in respect of the
interpretation of the will. We find para 3 of the will itself is very
relevant for the purpose of interpretation of the will, which is quoted
hereunder:-
"3. That subsequent to Smt. Kamla‟s death the persons
enumerated thereinafter shall be the owners of the property that
subsists."
8. We find the Will in its earlier part recites that on his death his
wife, Smt. Kamla Devi (the appellant), shall become the owner of the
property which survives. Use of the word 'survives' here means what
remains after the testator death. If the testator is still living, he may
dispose of some and thus she will become the owner of what survives.
Similarly, we do not find any rider is placed in this Will, after vesting
of this property unto her or in any way limiting her right of transfer or
disposal. Finally, the aforesaid quoted portion makes it absolutely
clear that this property given to her under the Will was not limited but
made her absolute owner. The significant words in paragraph 3 quoted
above records clearly, subsequent to the death of the appellant, the
persons enumerated in the Will shall be the owner of the property of
what subsists. This means, whatever remains, or the residual property
at the time of her death. So the High Court misconstrued the Will. It
clearly confers on the appellant absolute ownership and not limited
ownership. We may record here that trial court declined to grant
decree of possession to the appellant against which the appellant has
not preferred any appeal which has become final."
8. In my opinion, the issue with regard to the interpretation of the
Will in question is in fact squarely covered by the judgment of the
Supreme Court in the case of Sadaram Suryanarayana and Another Vs.
Kalla Surya Kantham and Another (2010) 13 SCC 147 wherein the
Supreme Court in similar factual situation has held that there is no
inconsistency or repugnancy because in case the person to whom
property is absolutely bequeathed in the first instance does not dispose of
the same in his lifetime, then, whatever is available at the time of death
of the first beneficiary will devolve upon the remainder man. The
relevant paras of the judgment of the Supreme Court in the case of
Sadaram Suryanarayana and Another (supra) are paras 8 to 10, 15, 19
and 22 to 26 and which paras read as under:-
"8. The English rendition of Clause 6 of the Will executed by Smt.
Kalla Jaggayyamma is as under:
"(6) 2nd item tiled house situated in New colony out of which
Eastern wing 2 rooms shall devolves to my 2nd daughter
Chandaram Appalanarasamma and the Western wing rooms
shall devolve upon my elder daughter Chandram Ramanamma
with absolute rights of Sale, Gift, Mortgage etc., and this will
come into force after my demise. After demise of my daughters
the retained and remaining property shall devolve upon their
female children only."
9. It is evident from a plain reading of the above that the testatrix
had bequeathed in absolute terms the property mentioned in Clause 6
in favour of her daughters Chandaram Appalanarasamma and
Chandaram Ramanamma with absolute rights of sale, gift, mortgage
etc. That the bequest was in absolute terms was made abundantly clear
by the use of the words "absolute rights of sale, gift, mortgage etc."
appearing in Clause 6 above. To that extent there is no difficulty.
What led to a forensic debate at the Bar was the latter part of bequest
under which the testatrix has attempted to regulate the devolution of
the property in question after the demise of her daughters. The
testatrix has desired that after the demise of her daughters the property
vested in them would devolve upon their female heirs only.
10. The question is whether the Testatrix Smt. Kalla Jaggayyamma,
had made two bequests, one that vests the property absolutely in
favour of her daughters and the other that purports to vest the very
same property in their female offsprings. If so whether the two
bequests can be reconciled and if they cannot be, which one ought to
prevail.
xxxxx
xxxxx
15. To the same effect is the decision of this Court in Mauleshwar
Mani's case where the question once again was whether an absolute
interest created in the property by the Testatrix in the earlier part of
the Will can be taken away or rendered ineffective by the subsequent
bequest which is repugnant to the first bequest. Answering the
question in the negative, this Court held that once the testator has
given an absolute right and interest in his entire property to a devisee
it is not open to him to further bequeath the very same property in
favour of the second set of persons. The following passage from the
decision in this regard is apposite: (SCC pp.473-74, para 12)
"12. In view of the aforesaid principles that once the
testator has given an absolute right and interest in his entire
property to a devisee it is not open to the testator to further
bequeath the same property in favour of the second set of
persons in the same will, a testator cannot create successive
legatees in his will. The object behind is that once an absolute
right is vested in the first devisee the testator cannot change the
line of succession of the first devisee. Where a testator having
conferred an absolute right on anyone, the subsequent bequest
for the same property in favour of other persons would be
repugnant to the first bequest in the will and has to be held
invalid......We are, therefore, of the view that once the testator
has given an absolute estate in favour of the first devisee it is not
open to him to further bequeath the very same property in favour
of the second set of persons."
xxxxx
xxxxx
19. In Kaivelikkal Ambunhi's case (SCC p.445, para 4), the Court
applied the maximum cum duo inter se pugnantia reperiuntur in
testamento ultimum ratum est which means that in a will if there are
two inconsistent provisions the latter shall prevail over the earlier.
xxxxx
xxxxx
22. It is evident from a careful reading of the provisions referred to
above that while interpreting a Will, the Courts would as far as
possible place an interpretation that would avoid any part of a
testament becoming redundant. So also the Courts will interpret a Will
to give effect to the intention of the Testator as far as the same is
possible. Having said so, we must hasten to add that the decisions
rendered by Courts touching interpretation of the Wills are seldom
helpful except to the extent the same recognize or lay down a
proposition of law of general application. That is so because each
document has to be interpreted in the peculiar circumstances in which
the same has been executed and keeping in view the language
employed by the Testator. That indeed is the requirement of
Section 82 of the Succession Act also inasmuch it provides that
meaning of any clause in a Will must be collected from the entire
instrument and all parts shall be construed with reference to each
other.
23. Coming then to the facts of the case at hand it is evident from a
careful reading of clause 6 of the Will extracted above that the same
makes an unequivocal and absolute bequest in favour of daughters of
Testatrix. The use of words like "absolute rights of sale, gift, mortgage
etc." employed by the Testatrix make the intention of the Testatrix
abundantly clear. Learned Counsel for the plaintiff-respondents herein
also did not have any quarrel with the proposition that the Testatrix
had in no uncertain terms made an absolute bequest in favour of her
daughters. What was argued by him was that the bequest so made
could be treated as a life estate not because the testament stated so but
because unless it is so construed the second part of clause 6 by which
the female offspring of the legatees would get the property cannot take
effect. It was on that premise contended that the absolute estate of
Smt. Sadaram Appalanarasamma ought to be treated only as a life
estate. The contention though attractive on first blush, does not stand
closer scrutiny. We say so because the ultimate purpose of
interpretation of any document is to discover and give effect to the
true intention of the executor, in the present case the testatrix.
24. We are not here dealing with a case where the Testatrix has in
one part of the Will bequeathed the property to 'A' while the same
property has been bequeathed to 'B' in another part. Had there been
such a conflict, it may have been possible for the plaintiff-respondent
to argue that the latter bequest ought to take effect in preference to the
former. We are on the contrary dealing with a case where the intention
of the Testatrix to make an absolute bequest in favour of her daughters
is unequivocal. Secondly, the expression "after demise of my
daughters the retained and remaining properties shall devolve on their
females children only" does not stricto sensu amount to a bequest
contrary to the one made earlier in favour of the daughters of the
testatrix.
25. The expression extracted above does not detract from the
absolute nature of the bequest in favour of the daughters. All that the
Testatrix intended to achieve by the latter part of Clause 6 was the
devolution upon their female offspring all such property as remained
available in the hands of the legatees at the time of their demise. There
would obviously be no devolution of any such property upon the
female offspring in terms of the said clause if the legatees decided to
sell or gift the property bequeathed to them as indeed they had every
right to do under the terms of the bequest. Seen thus, there is no real
conflict between the absolute bequest which the first part of Clause 6
of the Will makes and the second part of the said clause which deals
with devolution of what and if at all anything that remains in the
hands of the legatees.
26. The two parts of Clause 6 operate in different spheres, namely,
one vesting absolute title upon the legatees with rights to sell, gift,
mortgage etc. and the other regulating devolution of what may escape
such sale, gift or transfer by them. The latter part is redundant by
reason of the fact that the same was repugnant to the clear intention of
the testatrix in making an absolute bequest in favour of her daughters.
It could be redundant also because the legatees exercised their rights
of absolute ownership and sale thereby leaving nothing that could fall
to the lot of the next generation females or otherwise. All told the
stipulation made in the second part of clause 6 did not in the least
affect the legatees being the absolute owners of the property
bequeathed to them. The corollary would be that upon their demise the
estate owned by them would devolve by the ordinary law of
succession on their heirs and not in terms of the Will executed by the
testatrix." (underlining added)
9. A reading of the aforesaid paras shows that the Supreme Court
has held in similar facts that there is no inconsistency because what will
remain of the property, to the extent the same survives on the death of the
first beneficiary, will devolve upon the subsequent beneficiaries. The
Supreme Court has also held that the language of the Will in facts such
as the present would give not a life estate but absolute ownership to the
first beneficiary in view of the categorical language in the Will entitling
the first beneficiary to sell, mortgage etc the suit property. Therefore, in
view of the ratio of the judgment of the Supreme Court in the case of
Sadaram Suryanarayana and Another (supra) I hold that the Will in
question does not give only a life interest to the appellant/plaintiff but
gives absolute ownership of the suit property to the appellant/plaintiff
and her husband late Sh. Raj Kumar, of course with the condition that
whatever will remain and subsist out of the suit property as on the date of
the death of the appellant/plaintiff and Sh. Raj Kumar, the same would
vest with the respondent no.1/defendant no.1 and his brother Sh. Krishan
Kumar. Of course, I must hasten to add that the same would not in any
manner take away the fact that the suit for possession of
appellant/plaintiff has to be dismissed even if there is absolute ownership
of the suit property of the appellant/plaintiff and her husband Sh. Raj
Kumar, since Sh. Raj Kumar has died intestate, the defendant
no.1/respondent no.1 becomes a co-owner of the suit property as a legal
heir/son of Sh. Raj Kumar inheriting 1/3rd share out of the half share of
late Sh. Raj Kumar. Also, in case the suit property or whatever of it
survives on the death of the first other beneficiary of the Will namely the
appellant/plaintiff, at that stage of death of the appellant/plaintiff then it
will be seen as to whether respondent no.1/defendant no.1 alongwith Sh.
Krishan Kumar becomes owner inasmuch as it is pre-mature at this stage
to make any observations in this regard during the lifetime of the
appellant/plaintiff."
6. In view of the above, courts below have rightly held the
subject Will gives complete ownership rights to Smt. Pushpa Rani and not
life-estate as is urged and was urged by the appellants/plaintiffs in the
courts below.
7. The second issue is that even if for the sake of argument we
take that the Will only gave life-estate or life-interest to Smt. Pushpa Rani,
whether this life-estate/interest becomes a full-estate/interest under Section
14 (1) of the Hindu Succession Act. This issue in my opinion is also no
longer res integra because the Division Bench of the three Judges of the
Supreme Court in the case of C. Masilamani Mudaliar and Others Vs.
Idol of Sri Swaminathaswami Swaminathaswami Thirukoil and Others
(1996) 8 SCC 525 has held that a Hindu widow when she gets life-estate,
the same is taken in recognition of her pre-existing right of maintenance
which is available to her under the Shastric law being a right of
maintenance of a Hindu wife/widow, and additionally because of statutory
provisions of the Hindu Adoptions and Maintenance Act, 1956. The
Supreme Court in the case of C. Masilamani Mudaliar and Others
(supra) overruled a Division Bench judgment of two Judges of the
Supreme Court in the case Gumpha (Smt.) and Others Vs. Jaibai, (1994)
2 SCC 511, wherein the Division Bench of two Judges of the Supreme
Court has held differently on the interpretation of the document for holding
that Section 14 (1) of the Hindu Succession Act does not convert the life-
estate into a full estate. Reference to the discussion in the case of C.
Masilamani Mudaliar and Others (supra) shows that the Supreme Court
has referred to various international conventions and treaties as also the
objects of various provisions of the Constitution of India read with the
obligation of a Hindu husband to maintain his wife both under the Shastric
law as also the Hindu Adoptions and Maintenance Act, and has
consequently held that when by a Will, a Hindu husband bequeaths life-
interest in a property to his widow, the widow takes the property not as a
limited owner only with life-interest but that she becomes full owner
thereof by virtue of Section 14(1) of the Hindu Succession Act. The
relevant paras of the judgment of the Supreme Court in the case of C.
Masilamani Mudaliar and Others (supra) are paras 15 to 29 and these
paras read as under:-
"15. It is seen that if after the Constitution came into force, the right
to equality and dignity of person enshrined in the Preamble of the
Constitution, Fundamental Rights and Directive Principles which are
a trinity intended to remove discrimination or disability on grounds
only of social status or gender, removed the pre-existing impediments
that stood in the way of female or weaker segments of the society. In
S.R. Bommai v. Union of India this Court held that the preamble is
part of the basic structure of the Constitution. Handicaps should be
removed only under rule of law to enliven the trinity of justice,
equality and liberty with dignity of person. The basic structure
permeates equality of status and opportunity. The personal laws
conferring inferior status on women is anathema to equality. Personal
laws are derived not from the Constitution but from the religious
scriptures. The laws thus derived must be consistent with the
Constitution least they became void under Article 13 if they violated
fundamental rights. Right to equality is a fundamental right.
Parliament, therefore, has enacted Section 14 to remove pre-existing
disabilities fastened on the Hindu female limiting her right to
property without full ownership thereof. The discrimination is sought
to be remedied by Section 14(1) enlarging the scope of acquisition of
the property by a Hindu female appending an explanation with it.
16. The General Assembly of the United Nations adopted a
declaration on 4-12-1986 on "The Development of the Right to
Development" to which India played a crusading role for its adoption
and ratified the same. Its preamble recognises that all human rights
and fundamental freedoms are indivisible and interdependent. All
Nation States are concerned at the existence of serious obstacles to
development and complete fulfilment of human beings, denial of
civil, political, economic, social and cultural rights. In order to
promote development, equal attention should be given to the
implementation, promotion and protection of civil, political,
economic, social and political rights.
17. Article 1(1) assures right to development an inalienable human
right, by virtue of which every person and all people are entitled to
participate in, contribute to, and enjoy economic, social, cultural and
political development in which all human rights and fundamental
freedoms can be fully realised. Article 6(1) obligates the state to
observance of all human rights and fundamental freedoms for all
without any discrimination as to race, sex, language or religion. Sub-
article (2) enjoins that ... equal attention and urgent consideration
should be given to implement, promotion and protection of civil,
political, economic, social and political rights. Sub-article (3) thereof
enjoins that
"State should take steps to eliminate obstacle to development,
resulting from failure to observe civil and political rights as well
as economic, social and economic rights. Article 8 castes duty on
the State to undertake, ... necessary measures for the realisation
of right to development and ensure, inter alia, equality of
opportunity for all in their access to basic resources ... and
distribution of income."
Effective measures should be undertaken to ensure that women have
an active role in the development process. Appropriate economic and
social reforms should be carried out with a view to eradicate all social
injustice.
18. Human Rights are derived from the dignity and worth inherent in
the human person. Human Rights and fundamental freedom have
been reiterated by the Universal Declaration of Human Rights.
Democracy, development and respect for human rights and
fundamental freedoms are inter-dependent and have mutual
reinforcement. The Human rights for woman, including girl child are,
therefore, inalienable, integral and indivisible part of universal human
rights. The full development of personality and fundamental
freedoms and equal participation by women in political, social,
economic and cultural life are concomitants for national
development, social and family stability and growth, culturally,
socially and economically. All forms of discrimination on grounds of
gender is violative of fundamental freedoms and human rights.
19. Vienna declaration on the elimination of all forms of
discrimination p against women for short "CEDAW" was ratified by
the U.N.O. on 18-12-1979. The Government of India who was an
active participant to CEDAW ratified it on 19-6-1993 and acceded to
CEDAW on 8-8-1993 with reservation on Articles 5(e), 16(1), 16(2)
and 29 of CEDAW. The Preamble of CEDAW reiterates that
discrimination against women, violates the principles of equality of
rights and respect for human dignity; is in obstacle to the
participation on equal terms with men in the political, social,
economic and cultural life of their country; hampers the growth of the
personality from society and family and makes more difficult for the
full development of potentialities of women in the service of their
countries and of humanity. Poverty of women is a handicap.
Establishment of new international economic order based on equality
and justice will contribute significantly towards the promotion of
equality between men and women etc. Article 1 defines
discrimination against women to mean "any distinction, exclusion or
restriction made on the basis of sex which has the effect or purpose
on impairing or nullifying the recognized enjoyment or exercise by
women, irrespective of their marital status, on a basis of equality of
men and women, all human rights and fundamental freedoms in the
political, economic, social, cultural, civil or any other field."
Article 2(b) enjoins the State parties while condemning
discrimination against women in all its forms, to pursue, by
appropriate means, without delay, elimination of discrimination
against women by adopting "appropriate legislative and other
measures including sanctions where appropriate, prohibiting all
discriminations against women." To take all appropriate measures
including legislation, to modify or abolish existing laws, regulations,
customs and practices which constitute discrimination against
women. Clause C enjoins to ensure legal protection of the rights of
women on equal basis with men through constituted national
tribunals and other public institutions against any act of
discrimination to provide effective protection to women.
Article 3 enjoins state parties that it shall take, in all fields, in
particular, in the political, social, economic and cultural fields, all
appropriate measures including legislation to ensure full development
and advancement of women for the purpose of guaranteeing them the
exercise and enjoyment of human rights and fundamental freedoms
on the basis of equality with men. Article 13 states that "the State
parties shall take all appropriate measures to eliminate discrimination
against women in other areas of economic and social life in order to
ensure, on a basis of equality of men and women", in particular ....
Article 14 laid emphasis to eliminate discrimination on the problems
faced by rural women so as to enable them to play "in the economic
survival of their families including their work in the none magnetized
sectors of the economy and shall take ... all appropriate measures ...."
Participation in and benefit from rural development and, in particular,
shall ensure to such women the right to participate in the
development programme to organize self groups and cooperatives to
obtain equal access to economic opportunities through employment
or self-employment etc. Article 15(2) enjoins to accord to women in
equality with men before the law, in particular, to administer
property....
20. The Parliament made the Protection of Human Rights Act, 1993.
Section 2(b) defines human rights means "the rights relating to life,
liberty, equality and dignity of the individual guaranteed by the
Constitution, embodied in the international conventions and
enforceable by courts in India". Thereby the principles embodied in
CEDAW and the concomitant right to development became integral
parts of the Indian Constitution and the Human Rights Act and
became enforceable. Section 12 of Protection of Human Rights Act
charges the commission with duty for proper implementation as well
as prevention of violation of the human rights and fundamental
freedoms.
21. Article 5(a) of CEDAW to which the Government of India
expressed reservation does not stand in its way and in fact
Article 2(f) denudes its effect and enjoin to implement
Article 2(f) read with its obligation under-taken under
Articles 3 14 and 15 of the Convention vis-a-vis Articles 1, 3, 6 and 8
of the Convention of Right to Development. The directive principles
and fundamental rights, though provided the matrix for development
of human personality and elimination of discrimination, these
conventions add urgency and teeth for immediate implementation. It
is, therefore, imperative of the State to eliminate obstacles, prohibit
all gender based discriminations as mandated by
Articles 14 and 15 of the Constitution of India. By operation of
Article 2(f) and other related articles of CEDAW, the state should
take all appropriate measures including legislation to modify or
abolish gender based discrimination in the existing laws, regulations,
customs and practices which constitute discrimination against
women.
22. Article 15(3) of the Constitution of India positively protects such
Acts or actions. Article 21 of the Constitution of India reinforces
"right to life". Equality, dignity of person and right to development
are inherent rights in every human being. Life in its expanded horizon
includes all that give meaning to a person's life including culture,
heritage and tradition with dignity of person. The fulfilment of that
heritage in full measure would encompass the right to life. For its
meaningfulness and purpose every woman is entitled to elimination
of obstacles and discrimination based on gender for human
development. Women are entitled to enjoy economic, social, cultural
and political rights without discrimination and on footing of equality.
Equally in order to effectuate fundamental duty to develop scientific
temper, humanism and the spirit of enquiry and to strive towards
excellence in all spheres of individual and collective activities as
enjoined in Article 51-A(h) and (j) of the Constitution of India,
facilities and opportunities not only are to be provided for, but also all
forms of gender based discrimination should be eliminated. It is a
mandate to the State to do these acts. Property is one of the important
endowments or natural assets to accord opportunity, source to
develop personality, to be independent, right to equal status and
dignity of person. Therefore, the State should create conditions and
facilities conducive for women to realise the right to economic
development, including social and cultural rights.
23. Bharat Ratna Dr. B.R. Ambedkar stated, on the floor of the
Constituent Assembly that in future both the legislature and the
executive should not pay mere lip service to the directive principles
but they should be made the bastion of all executive and legislative
action. Legislative and executive actions must be conformable to and
effectuation of the fun damental rights guaranteed in Part III and the
directive principles enshrined in Part IV and the Preamble of the
Constitution who constitutes conscience of the Constitution.
Covenants of the United Nation add impetus and urgency to eliminate
gender-based obstacles and discrimination. Legislative action should
be devised suitably to constellate economic empowerment of women
in socio-economic restructure for establishing egalitarian social order.
Law is an instrument of social change as well as the defender for
social change. Article 2(e) of CEDAW enjoins that this Court to
breath life into the dry bones of the Constitution, international
convictions and the protection of Human, rights Act and the Act to
prevent gender based discrimination and to effectuate right to life
including empowerment of economic, social and cultural rights to
women.
24. As per the U.N. Report, 1980 "woman constitute half the world
population, perform nearly two thirds of work hours, receive one-
tenth of the world's income and own less than one-hundredth per cent
of world's property". Half of the Indian population too are women.
Women have always been discriminated and have suffered and are
suffering discrimination in silence. Self sacrifice and self denial are
their nobility and fortitude and yet they have been subjected to all
inequities, indignities inequality and discrimination.
Articles 13 14 15 and 16 of the Constitution of India and other related
articles prohibit discrimination on the ground of sex. Social and
economic democracy is the cornerstone for success of political
democracy.
25. In Valsamma Paul v. Cochin University, this Court has held thus:
(SCC pp. 562-64, paras 26-29)
"Human rights are derived from the dignity and worth inherent in
the human person. Human rights and fundamental freedoms have
been reiterated in the Universal Declaration of Human Rights.
Democracy, development and respect for human rights and
fundamental freedoms are inter-dependent and have mutual
reinforcement. The human rights for women, including girl child
are, therefore, inalienable, integral and indivisible part of
universal human rights. The full development of personality and
fundamental freedoms and equal participation by women in
political, social, economic and cultural life are concomitants for
national development, social and family stability and growth-
cultural, social and economical. All forms of discrimination on
grounds of gender is violative of fundamental freedoms and
human rights. Convention for Elimination of all forms of
Discrimination Against Women (for short, "CEDAW" was
ratified by the U.N.O. on 18-12-1979 and the Government of
India had ratified as an active participant on 19-6-1993 acceded
to CEDAW and reiterated that discrimination against women
violates the principles of equality of rights and respect for human
dignity and it is an obstacle to the participation on equal terms
with men in the political, social, economic and cultural life of
their country; it hampers the growth of the personality from
society and family, making more difficult for the full
development of potentialities of women in the service of the
respective countries and of humanity.
Establishment of new international economic order based on equality
and justice will contribute significantly towards the promotion of
equality between men and women etc. Article 1 defines
„discrimination against woman‟ to mean
„any distinction, exclusion or restriction made on the basis of sex
which has the effect or purpose of impairing or nullifying the
recognized enjoyment or exercise by women, irrespective of their
marital status, on the basis of equality of men and women, all
human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field.‟
Article 2(b) enjoins upon the State parties, while condemning
discrimination against women in all its forms, to pursue, by
appropriate means, without delay, elimination of discrimination
against women by adopting
„appropriate legislative and other measures including sanctions
where appropriate, prohibiting all discriminations against
women; to take all appropriate measures including legislation, to
modify or abolish existing laws, regulations, customs and
practices which constitute discrimination against women.‟
Clause C enjoins upon the State to ensure legal protection of the
rights of women on equal basis with men, through constituted
national tribunals and other public institutions against any act of
discrimination to provide effective protection to women. Article 3
enjoins upon the State parties that it shall take, in all fields, in
particular, in the political, social, economic and cultural fields, all
appropriate measures including legislation to ensure full development
and advancement of women for the purpose of guaranteeing them the
exercises and enjoyment of human rights and fundamental freedoms
on the basis of equality with men. Article 13 states that
„the State parties shall take all appropriate measures to eliminate
discrimination against women in other areas of economic and
social life in order to ensure, on a basis of equality of a men and
women.‟
The Parliament has enacted the Protection of Human Rights Act,
1993. Section 2(b) defines "human rights" to mean
„the rights relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution, embodied in the
international conventions and enforceable by courts in India.‟
Thereby, the principles embodied in CEDAW and the concomitant
right to development became integral part of the constitution of India
and the Human Rights Act and became enforceable. Section 12 of the
Protection of Human Rights Act charges the commission with duty
for proper implementation as well as prevention of violation of the
human rights and fundamental freedoms.
Though the Government of India kept its reservations on Articles
5(e), 16(1), 16(2) and 29 of CEDAW, they bear little consequence in
view of the fundamental rights in Article 15(1) and (3) and
Article 21 and the directive principles of the Constitution.
26. It is true that Section 30 of the Act and the relevant provisions of
the Act relating to the execution of the wills need to be given full
effect and the right to disposition of a Hindu male derives full
measure there under. But the right to equality removing handicaps
and discrimination against a Hindu female by reason of operation of
existing law should be in conformity with the right to equality
enshrined in the Constitutional and the personal law also needs to be
in conformity with the Constitutional goal. Harmonious
interpretation, therefore, is required to be adopted in giving effect to
the relevant provisions consistent with the constitutional animation to
remove gender-based discrimination in matters of marriage,
succession etc. Cognizant to these constitutional goals, Hindu
Marriage Act, Hindu Adoption and Maintenance Act, Hindu
Succession Act etc. have been brought on statute removing the
impediments which stood in the way under the Sastric law.
Explanation I to Section 14(1) gives wide amplitude to the acquisition
of property in the widest terms. It is merely illustrative and not
exhaustive. The only condition precedent is whether Hindu female
has a pre-existing right under the personal law or any other law to
hold the property or the right to property. Any instrument, document,
device etc. under which Hindu female came to possess the property-
movable or immovable-in recognition of her pre-existing right,
though such instrument, document or device is worded with a
restrictive estate, which received the colour of pre-existing restrictive
estate possession by a Hindu female, the operation of sub-section (1)
of Section 14 read with Explanation 1, remove the fetters and the
limited right blossoms into an absolute right.
27. As held by this Court, if the acquisition of the property attracts
sub-section (1) of Section 14, sub-section (2) does not come into
play. If the acquisition is for the first time, without any vestige of pr-
existing right under the instrument, document or device etc. then sub-
section (2) of Section 14 gets attracted. Sub-section (2) being in the
nature of an exception, it does not engulf and wipe out the operation
of Sub-section (1). Sub-section (2) of Section 14 independently
operates in its own sphere. The right to disposition of property by a
Hindu Under Section 30 is required to be understood in this
perspective and if any attempt is made to put restriction upon the
property possessed by a Hindu female under an instrument, document
or device, though executed after the Act had come into force, it must
be interpreted in the light of the facts and circumstances in each case
and to construe whether Hindu female acquired or possessed the
property in recognition of her pre-existing right or she gets the rights
for the first time under the instrument without any vestige of
preexisting right. If the answer is in the positive, Sub-section (1) of
Section 14 gets attracted. Thus construed, both Sub-sections (1) and
(2) of Section 14 will be given their full play without rendering either
as otiose or aids as means of avoidance.
28. In Gumpha case though the will was executed in 1941 and the
executor died in 1958 after the Act had come into force, the concept
of limited right in lieu of maintenance was very much in the mind of
the executor when will was executed in 1941 but after the Act came
into force, the will became operative. The restrictive covenant would
have enlarged it into an absolute estate; but unfortunately the bench
had put a restrictive interpretation which in our considered view does
not appear to be sound in law.
29. The legatee Sellathachi had right to maintenance under the
Hindu Adoption and Maintenance Act when the property was
given to her for maintenance. It must be in lieu of her pre-
existing right to maintenance and the property given under the
will, therefore, must be construed to have been acquired by the
legatee under the will in lieu of her right to maintenance. That
right to maintenance to a Hindu female received statutory
recognition under the Hindu Adoption and Maintenance Act,
1956. She is entitled to realise maintenance from property of her
husband and even in the hands of strangers except the bona fide
purchaser for value whether notice of her right. She is equally
entitled Under Section 37 of the Transfer of Property Act to have
charge created over the property for realisation of her maintenance.
On the demise of the testator, she being the class-I heir but for the
bequeath, is entitled to succeed as an absolute owner. In either of
those circumstances, the question emerges whether she acquires a
limited right Under Section 14(2) for the first time under the
Will. In the light of the facts and circumstances of the case and
the legal setting, we F are of the considered view that she having
had under Sastric law, as envisaged in the Will, the properties in
recognition of her pre-existing right to maintenance, it is not a
right acquired for the first time under the instrument will, but it
is a reflection of the pre-existing right under the Sastric law,
which was blossomed into an absolute ownership after 1956
Under Section 14(1) of the Act. Under these circumstances, it
cannot be held that Sellathachi acquired the right to maintenance for
the first time under the instrument will. The Division Bench,
therefore, does not appear to have approached the problem in the
correct perspective. In view of the settled legal position right from
Tulasamma case the right acquired under the Will is in recognition of
the pre-existing right to maintenance known under the Sastric law and
was transformed into an absolute right Under Section 14(1) wiped out
the restrictive estate given under the Sastric law and Sellathachi as
absolute owner of the property. The Division bench of the High
Court, therefore, was not correct in holding that Sellathachi has
acquired only a limited estate under the Will and
Section 14(2) attracts to the restrictive covenants contained in the will
limiting her right to maintenance for life time and, thereafter, the
right to enjoy the income from the lands and on her demise, the
income should go to the temples as mentioned in the will is not
correct in law." (emphasis is mine)
9. Therefore, even assuming for the sake of argument that in this
case the subject Will did not give full ownership interest to Smt. Pushpa
Rani but only gave life-interest, even this life-interest became a full
ownership interest by virtue of Section 14(1) of the Hindu Succession Act.
10. In view of the above, no substantial question of law arises and
therefore the second appeal is dismissed. No costs.
AUGUST 01, 2016 VALMIKI J. MEHTA, J
B
