Full Judgment Text
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PETITIONER:
C. MASILAMANI MUDALIAR & ORS.
Vs.
RESPONDENT:
THE IDOL OF SRI SWAMINATHASWAMISWAMINATHASWAMI THIRUKOIL & O
DATE OF JUDGMENT: 30/01/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
AHMAD SAGHIR S. (J)
G.B. PATTANAIK (J)
CITATION:
1996 AIR 1697 JT 1996 (3) 98
1996 SCALE (2)664
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We have heard the counsel on both sides.
The appeal by special leave arises from the judgment
dated July 2. 1992 of the Division Bench of the Madras High
Court rendered in LPA No.161 of 1988.
The appellants are the alienness from Sellathachi,
widow of Somasundaram Pillai who had executed a will, Ex-A3
on 16.7.1950 bequeathing the suit properties to his wife and
his cousin’s widow Janakathache mentioning thereunder as
follows:
"Whereas I have no male or female
issues and my wife (1) Sellathachi
and (2) Janaka Thathachi, wife of
my senior paternal uncle’s son
Thabasuya Pillai are living with me
and in my family and other than the
other 2 persons, there is none else
in my family. Amongst the aforesaid
persons, the aforesaid Janaka
Thachi have got only maintenance
relationship and none else in my
family have any right in the share
or have maintenance relationship. I
am duty bound to provide
maintenance for the aforesaid two
persons and I have no other duty to
be performed. Therefore, after my
lifetime, the under mentioned A
Schedule property valued at
Rs.2000/shall be got by the
aforesaid two persons and shall be
enjoyed in equal shares without any
right to alienate the same and
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perform the charities as per their
wish and after the lifetime of both
the aforesaid persons,
Govindasrasan Pillai, s/o Peria
Pillai, of the aforesaid Eduvankudi
Village shall be the Trustee of A
Schedule property and with the
income derived from the under
mentioned land shall perform the
Pooja to the idol at Swamimalai Sri
Swaminatha Swami Devasthanam,
Kumbekonam Taluk, every month on
the Krithigai Satar Day and also do
the charity of power feeding on the
aforesaid day, and also shall put
up the lamps every day at the
Subramania Swamiar Temple of the
aforesaid Edavankudi village and
perform the Pooja and the Charity
of poor feeding every month on the
Krithigai Star Day. Further in
respect of the under mentioned B
Schedule property valued at
Rs.1000/-, after my lifetime, the
aforesaid Govinda Rajan Pillai
himself shall be the trustee and
from the revenue derived from the
aforesaid property shall perform
the Pooja and the charity of poor
feeding as detailed above to the
aforesaid Swami Natha Swami and the
aforesaid Subramania Swamy. Amongst
the aforesaid Sellathachi and
Janaka Thachi, if one of the
persons were to doe survived by
another, the surviving Member shall
have the right to enjoy the A
Schedule property in its entirety.
This Deed of will shall come into
force only after my lifetime, and I
shall have the right and authority
to change or cancel this Deed of
Will during my lifetime."
Somasundaram Pillai died in September 1950. The
legatees Sellathachi and another had come into possession
of the properties. Janaka Thathachi died in the year 1960.
In 1970, Sellathachi had appointed a power of attorney-
holder who had alienated the suit properties and the
appellants had purchased them under registered sale deed.
The suit was filed for declaration that the legatees having
succeeded to limited estate under the will, the alienations
made by Sellathachi were illegal. The trial Court decreed
the suit. The learned single Judge allowed the appeal and
dismissed the suit and in LPA No.161/88 dated July 2, 1992,
the Division Bench of the High Court has set aside the
decree of the single Judge holding that the legatees had
succeeded to restricted estate under subsection (2) or
Section 14 of the Hindu Succession Act, 1956 (for short, the
"Act") and that, therefore, their rights have not blossomed
into absolute estate. Thus this appeal by special leave.
The question, therefore, is: whether Sellathachi, the
widow of Somasundaram Pillai, had become the absolute owner,
by operation or Section 14(1) of the Act? Recital of the
Will clearly indicates that the testator was conscious of
the pre-existing legal position, namely, he was under an
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obligation to maintain his wife and also moral obligation to
maintain his cousin’s wife. He stated that "I am duty bound
to provide maintenance for the aforesaid two persons and I
have no other duty to be performed". He had stated that
after his lifetime the two legatees would be entitled to
take possession of the properties and enjoy the same in
equal share without any right to alienate and to perform the
charities as per his last wish. He also mentioned that if
one of the legatees pre-deceases, the other surviving member
would have the right to enjoy the properties mentioned in
the will. The right to maintenance and a charge on her
husband’s properties are pre-existing legal rights available
to her
Section 14 of the Act reads thus:
"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.
Explanation.-In this sub-section,
"property" includes both movable
and immovable property acquired by
a female Hindu by inheritance or
device, or at a partition, or in
lieu of maintenance of 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 whatever, and
also any such property held by her
as stridharas 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."
In Tulasamma vs. V.Sesha Reddi [(1977) 3 SCR 261], a
Bench of three Judges of this Court had considered the right
acquired under the will and held at page 268 thus:
"Whatever be the kind of property,
movable or immovable, and whichever
be the mode of acquisition, it
would be covered by sub-section (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 provisions against
propriety rights which were often
regarded as evidence of her
perpetual tutelage and to recognize
her status as an independent and
absolute owner of property."
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At page 269, it was further held
that:
"Sub-section (2) must, therefore,
be read in the context 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 confined to cases where
property is acquired by a female
Hindu for the first time as a grant
without any pre-existing right,
under a gift, will, instrument,
decree, order or award, the terms
of which prescribe a restricted
estate in the property."
Thota Sesharathamma vs. Thota Manikyamma [(1991) 3 SCR
717 = (1991) 4 SCC 312] is also a case under which the
legatee had obtained under a will a limited estate known as
widow’s estate, prior to the Act came into force. When the
suit was laid for declaration that she became only a limited
owner, this Court had considered the controversy and held
thus:
"Devolution of the property under
the will would take effect after
the demise of the testator and the
legatee would be bound by the
terms of gift over etc. The
stranger legatee cannot take
shelter under subsequent change of
law to enlarge the operation of
restrictive covenant to claim
absolute ownership in the property
bequeathed to her. But socio-
economic amelioration under the Act
engulfs an instrument under the
sweep of Section 14(1) thereof; it
extinguishes the pre-existing
limited estate or restrictive
condition and confers absolute and
full ownership of the property
possessed by a Hindu female as on
the date when the Act had come into
force, namely, June 17, 1956. The
courts are not giving retrospective
operation to Section 14(1) or to
the instrument. The courts only
would be applying the law to the
facts found as on the date when the
question arose to find whether
legatee has pre-existing vestige of
title under law; and the nature of
possession of the property held by
her and whether the legatee would
get the benefit of Section 149(1)
of the Act."
In Mangat Mal vs.Punni Devi [(1995) 6 SCC 88], another
Bench of two Judges considered the right acquired by the
female under an award and held that :
"Maintenance, as we see it,
necessarily must encompass a
provision for residence.
Maintenance is given so that the
lady can live in the manner, more
or less, to which she was
accustomed. The concept of
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maintenance must, therefore,
include provision for food and
clothing and the like and take into
account the basic need of a roof
over the head. Provision for
residence may be made either by
giving a lump sum in money, or
property in lieu thereof. It may
also be made by providing, for the
course of the lady’s life, a
residence and money for other
necessary expenditure. Where
provision is made in this manner,
by giving a life interest in
property for the purposes of
residence, that provision is made
in lieu of a preexisting right to
maintenance and the Hindu lady
acquires far more than the vestige
of title which is deemed sufficient
to attract Section 14(1).
Under the award provision was made,
in lieu of Sukh Devi’s pre-existing
right to maintenance, of money and
interest of life in the Bidasar
property. Sukh Devi, therefore,
acquired limited ownership rights
in the Bidasar property in
recognition of her pre-existing
right to maintenance. Upon the
coming into force of the Act, the
limited rights acquired by Sukh
Devi in 1934 blossomed into full
ownership of the Sidasar property,
and she became entitled to sell
its ’nohra’. In our view,
therefore, the High Court was in
error in the view that it took.
This Court thus held that the view taken by the High
Court was wrong in holding that she acquired a limited
estate and sub-section (2) of Section 14 became applicable
to the right acquired by her under the award. Accordingly,
this Court had held that her right acquired under the award
was in recognition of her pre existing right to maintenance
and that, therefore, it had blossomed into an absolute right
under Section 14(1) of the Act.
It is true, as rightly contended by Shri Rangam, the
learned counsel for the respondent, that a Bench of two
Judges of this Court in Gumpha vs. Jaibai [(1994) 2 SCC 511]
considered the effect of the will and had held that property
acquired under will does not fall under Section 14(1). In
that case, the will was executed in the year 1941 and the
testator died in 1958 after the Act had come into force.
Therefore, this Court had held that she acquired right to
maintenance under the will as a restricted estate and by
operation of Section 30 of the Act read with Section 14(2),
she acquired a limited estate. The learned Judges appear to
have construed the operation of sub-section (2) of Section
14 in the light of the language mentioned in the Will. It
would be seen that the Will was executed in the year 1941.
As per pre-existing law in 1941, she had only a right to
maintenance. The learned Judges proceeded on the premise
that a Hindu male’s power to dispose of his property being
absolute, it includes right to create limited or restricted
estate in favour of a female. By operation of Section 30 of
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the Act the restricted estate under the Will comes under
sub-section [2] of Section 14 as it is not a device under
which she acquired the property under sub-section [1]
thereof. However, the learned judges noted that if the
maintenance was given in recognition of a preexisting right,
such an acquisition of property was taken out of sub-section
[2] to promote the object of Section 14. The manner of
acquisition under sub-section [1] includes inheritance etc.
specifically mentioned in subsection [1] before the
commencement of the Act. Therefore, it was held that it does
not include acquisition by will. The construction of sub-
sections [2] and [1] being consistent with Section 30 of the
Act led to that conclusion. in the view of the learned
Judges, that the words "in lieu of" or "arrears of" for
maintenance appeared to be significant.
In Seth Badri Prasad v. Srimati Kanso Devi [(1969) 2
SCC 586] the question of the construction of sub-section [2]
and sub-section [1] of Section 14 had come up before a
three-Judge Bench of this Court. The facts therein were that
the respondent got certain properties under an award as a
widow’s estate. Suit was filed by the appellant to restrain
respondent from committing acts of waste or alienating the
properties on the ground that she was only limited owner of
the property. The respondent contended that under Section
14 [1] she became full owner of the property which was
found favour with the courts below. In interpreting
Section 14 [1] and [2], this Court held that the words
"acquired" and "possessed" have been used in their
widest connotation. Possession must be constructive or
actual or in any form recognized by law. In the language of
Explanation the word "acquired" must also be given the
widest possible meaning. Sub-section [2] of Section 14 would
come into operation only if acquisition in any of the
matters indicated therein does not come under Section 14 [1]
and was made for the first time, without there being any
pre-existing right in the Hindu female who is in possession
of the property. It was held that since she was in
possession of the property as a widow’s estate, her limited
right was enlarged into an absolute right under Section 14
[1] .
In Mangal Singh & Ors. v. Shrimati Rattno & Anr.
[(1967) 3 SCR 454], another three-Judge Bench was to
consider the question whether a Hindu female who was
dispossessed from the property in her possession before the
Act had come into force became an absolute owner under
Section 14 [1]. This Court held that the words "possessed
by" instead of the expression "in possession of" in Section
14 [1] was intended to enlarge the meaning of the expression
possession by" to cover cases of "possession in law". Even
though the Hindu female was not in actual, physical or
constructive possession of the property Section 14 [1]
stands attracted.
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 or the
society. In S.R. Bommai v. Union of India [(1995) 1 SCC ]
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 justices
equality and liberty with dignity of person. The basic
structure permeates equality to status and opportunity. The
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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 lest
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.
The General Assembly of the United Nations adopted a
declaration on December 4, 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
cognises 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 fulfillment 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.
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 realized. 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 estate 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 he
realization 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.
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.
Vienna declaration on the elimination of all forms of
discrimination against women for short "CEDAW" was ratified
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by the U.N.O. on December 18, 1979. The Government of India
who was an active participant to CEDAW ratified it on June
19, 1993 and acceded to CEDAW on August 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 an 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 many
distinctions 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 non-monetized 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.......
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
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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.
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 undertaken 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
urgently 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.
Article 15(3) of the Constitution of India positively
protects such Acts or actions. Article 21 of the
Constitution of India reinforces "fright 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
fulfillment 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
51A(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 realize the right to economic
development including social and cultural rights.
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 fundamental 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 constallate economic empowerment of women in
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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.
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 hundred 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
discriminated 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.
In Mrs. Valsamma Paul v. Cochin University & Ors. [JT
1996 (1) SC 57] this Court has held thus:
"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 December
18, 1979 and the Government of
India had ratified as an active
participant on June 19, 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,
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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
women" 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 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
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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".
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
CIDAW, 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.
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 thereunder. 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
Constitution 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 I, remove the fetters and the limited right
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blossoms into an absolute right.
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 times, without any vestige of pre-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 pre-
existing right. If the answer is in the positive, sub-
section [1] of Section 14 gets attracted. Thus construed,
both subsections [1] and [2] of Section 14 will be given
their full play without rendering either as otios or aids as
means of avoidance.
In Gumpha’s case [supral 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.
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 purchasers for value
whether notice af her right. She is equally entitled under
Section 37 of the Transfer of Property Act to have charge
created over the property for realization 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 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
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approached the problem in the correct perspective. In view
of the settled legal position right from Tulasamma’s case
[supra] 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.
Shri Rangam then contended that when the testator has
thought of providing only maintenance, to the two widows,
the properties being more than 10 acres, the maintenance
must be only proportionate to the needs of the widow and to
that extent the widow acquires an absolute right but not the
entire property. We find no force in that contention. It is
to be seen that under the pre-existing law, she is entitled
to remain in possession of the whole estate known as widow’s
estate and after the Act has come into force that widow’s
estate was blossomed into an absolute estate by operation of
Section 14(1) Even in the Will Ex-A1, no such restrictive
covenant was engrafted giving reasonable proportion of
income consistent with her needs for maintenance. On the
other hand, the express covenant is that, he recognized her
right to maintenance and in lieu of the maintenance property
was given to her for her maintenance during her lifetime.
That is the pre-existing right as per then existing law.
After the Act has come into force, the limited estate has
blossomed into an absolute estate. Therefore, the doctrine
of proportionality of maintenance is not applicable and
cannot be extended.
The appeal is accordingly allowed. The judgment of the
Division Bench stands set aside and that of the single Judge
stands upheld. Resultantly, the suit stands dismissed. In
the circumstances, there shall be no order as to costs.