Gummalapura Taggina... vs Setra Veeravva and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 120 of 1955

Decision Date: 19 December 1958

Coram: Syed Jaffer Imam, S.K. Das, J.L. Kapur

In this matter the Supreme Court of India delivered its judgment on 19 December 1958. The case was styled Gummalapura Taggina Matadakottur‑Swami versus Setra Veeravva and Others. The judgment was authored by Justice Syed Jaffer Imam, who sat on a bench together with Justice S. K. Das and Justice J. L. Kapur. The decision appears in the 1959 volume of the All India Reporter at page 577 and in the 1959 Supplement to the Supreme Court Reporter at page 968. Subsequent citator references to this judgment include citations in the Supreme Court reports for the years 1962, 1966, 1967, 1970, 1977, 1991 and other law reports. The statutory provision that formed the centre of the dispute was Section 14 of the Hindu Succession Act, 1956 (30 of 1956). The headnote of the judgment restated Sub‑section (1) of that section, which provides that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as a full owner and not as a limited owner.

The factual backdrop involved a suit filed by the nearest reversioner of a deceased Hindu male, identified as K, seeking a declaration that an adoption undertaken by K’s widow was invalid. The trial court dismissed the suit. While the appeal against that dismissal was pending, the Hindu Succession Act, 1956 came into force. At the hearing of the appeal, the respondent – the widow – raised a preliminary objection. She contended that even if the adoption were held to be invalid, the appellant’s suit could not succeed because Section 14 of the Act vested the widow, who was a party to both the suit and the appeal, with full ownership of her husband’s property. The appellant counter‑argued that the provisions of Section 14 did not apply because, at the moment the Act became operative, the property was not in the widow’s possession; rather, it was in the possession of the adopted son.

The Court held that the term “possession” in Section 14 must be given its widest possible meaning, encompassing actual possession, constructive possession, or any form of possession recognised by law. The Court referred to the authority in Gostha Behari v. Haridas Samanta, A.I.R. 1957 Cal. 557, which was approved. Applying this principle, the Court observed that if the adoption were indeed invalid, the widow would become the full owner of K’s estate. Even assuming that the adopted son held actual possession of the estate, such possession was merely permissive, and the widow was to be deemed in constructive possession through the son. Consequently, Section 14 was applicable, rendering the widow a full owner of her husband’s property, and the appellant’s suit was therefore not maintainable. The judgment was rendered under the civil appellate jurisdiction in Civil Appeal No. 120 of 1955, which arose from the judgment and decree dated March 25 1949 of the Madras High Court.

The appeal concerned a judgment and decree dated 25 December 1949 issued by the Madras High Court in Appeal No 55 of 1946, which arose from the judgment and decree of 26 November 1945 rendered by the District Judge of Bellary in Original Suit No 39 of 1943. The appellant was represented by counsel A V Viswanatha Sastri and K R Chaudhury, while the respondents were represented by counsel K N Rajagopala Sastri and M S K Sastri. The judgment was delivered on 19 December 1958 by Justice Imam. The appeal was placed before the Court on a certificate granted by the High Court because that Court had identified a substantial question of law, namely whether the adoption of the second defendant was invalid because the approval or consent of the five trustees specified in paragraph 14 of the will of Kari Veerappa (exhibit P‑2(a)) had not been obtained, and whether the authority to adopt ceased if any of those five persons either declined to accept the trusteeship, died before the adoption, or refused to give their approval. The present Court observed that, in view of certain matters to be set out, the legal question formulated by the High Court did not require consideration. The will of Kari Veerappa, who was the last male owner of the estate described in his will dated 10 October 1920 (exhibit P‑2(a)), authorized his wife Setra Veeravva, the first defendant, to adopt a son for the purpose of continuing the family line, as he had no issue. The authority to adopt was expressed in the terms that Veeravva could adopt as many times as necessary if a prior adoption proved unsuccessful, but that any adopted boy had to be approved by the respectable persons appointed by Kari Veerappa in paragraph 14. The will further provided that if Veeravva died before making any adoption, the trustees should arrange for the adoption of a boy in accordance with the family usage (kulachara). It was unnecessary to refer to other provisions of the will at this stage. Kari Veerappa died on 23 October 1920. After his death, his widow made two attempts to adopt a son in accordance with the will. The first attempt, made in 1939, failed to achieve the purpose of the will because the person purportedly adopted died, and the validity of that adoption was not contested thereafter. Subsequently, on 11 October 1942, Veeravva adopted the second defendant, Sesalvada Kotra Basayya. Two documents relating to this adoption were placed on record: the first, exhibit D‑25 dated 18 September 1942, was a registered agreement to adopt the second defendant; the second, a registered deed of adoption dated 23 June 1943, expressly stated that on 11 October 1942 Veeravva had adopted the second defendant and made reference to the September 18 1942 agreement.

On 11 October 1942 Veeravva adopted the second defendant, and the document concerning that adoption also referred to the agreement dated 18 September 1942. The appellant, claiming to be the nearest reversioner of the late Kari Veerappa, instituted the present suit seeking a declaration that Veeravva’s adoption of the second defendant was invalid and therefore not binding on the appellant or any other reversioners of Kari Veerappa’s estate. The suit was first heard by the District Judge of Bellary, who dismissed it, after which the appellant appealed to the High Court of Madras. The High Court dismissed the appeal, substantially affirming the District Judge’s decision, and it refused to allow the compensatory costs that the District Judge had awarded. Moreover, the High Court rejected the finding that the appellant had failed to establish the relationship he alleged, holding instead that the appellant was indeed a relative and a reversioner, although he had not proved that he was the nearest reversioner alive at the time the appeal was heard; the Court observed that such proof would become necessary only when the appellant actually sought possession of the property after Veeravva’s death. When the present appeal was listed for hearing, counsel for the respondents raised a preliminary objection, contending that the suit filed by the plaintiff must fail in any event because of the provisions of section 14 of the Hindu Succession Act, 1956. Consequently, the respondents submitted that the present appeal, which arose out of that suit, must also fail. The respondents argued that either a valid adoption existed or it did not. If a valid adoption existed, then the decisions of the High Court and the District Judge on that question were correct, and the appellant’s suit would consequently be dismissed. Conversely, if the adoption of the second defendant by Veeravva was found to be invalid or had not taken place, then, under section 14 of the Act, Veeravva would become the full owner of her husband’s estate and would not be a limited owner; as a result, the appellant’s suit would be untenable. In view of this submission, the Court expressed the view that the preliminary objection raised by the respondents must first be considered and decided. The Court noted that it is well settled that an appellate court may take into account any change in the law, referring to the authority of Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri. Section 14 of the Act states: “14(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.” The explanation to this subsection clarifies that “property” includes both movable and immovable property acquired by a female Hindu.

Section fourteen of the Act provides that a Hindu woman may hold any property acquired by inheritance, devise, partition, in satisfaction of maintenance or arrears of maintenance, by gift from any person whether a relative or not, before, at or after her marriage, by her own skill or exertion, by purchase, by prescription, by any other manner whatsoever, and also any such property that she held as stridhana immediately before the commencement of the Act. Sub‑section two clarifies that nothing in sub‑section one applies to property acquired by way of gift, by a will, by any other instrument, by a decree or order of a civil court, or by an award, where the terms of that gift, will, instrument, decree, order or award prescribe a restricted estate in the same property. Counsel for the appellant argued that the provisions of section fourteen did not govern the present dispute because, at the time the Act came into force, the estate of the deceased Veerappa was not possessed by his widow Veeravva but by the second defendant. Further, the appellant contended that under sub‑section two Veeravva obtained only a restricted estate under the will annexed as Exhibit P‑2(a) and the adoption agreement annexed as Exhibit D‑25. It was submitted that the widow’s authority to adopt was not dependent on her ownership of her husband’s estate; rather, such authority derived under Hindu law either from the power conferred by her husband or from the consent of his agnates. The appellant maintained that the Act did not expand her power of adoption nor did it protect an adoption that was invalid from challenge by the reversioners during her lifetime. Consequently, the appellant, as a reversioner, was entitled while Veeravva was alive to institute the present suit seeking a declaration that the adoption of the second defendant was void. The preliminary objection raised by the respondents required consideration on the premise that the adoption was indeed invalid, for if the adoption had been valid the provisions of section fourteen would not be relevant. Accordingly, it was necessary to ascertain whether section fourteen applied to the facts of this case. Counsel for the appellant further urged that the phrase “any property possessed by a female Hindu” in section fourteen must be interpreted to mean actual physical possession of the property, regardless of when the property was acquired, and that such actual possession was a condition precedent to the operation of the section. Since the Act became operative on June 17, 1956, whereas the High Court’s decision was rendered on March 25, 1955, the Court needed to resolve the question of who actually possessed the estate of Veerappa at the relevant time.

It was observed that the estate of Veerappa did not form part of the matters set out in the appellant’s plaint, and therefore the Court should provide the appellant an opportunity to obtain a finding on that question after the relevant evidence had been taken. The respondents argued that the expression “any property possessed by a female Hindu” in the statute should be understood to cover not only physical possession but also legal ownership and constructive possession. They further submitted that even if the phrase were limited to actual physical possession, the facts of the case demonstrated that Veeravva had been in actual possession of Veerappa’s estate when the Act became operative. The record showed that, upon Veerappa’s death, Veeravva acquired possession of his estate and retained it at least until the year 1942, the time when the adoption of the second defendant was purported to have occurred. Moreover, the adoption agreement dated 18 September 1942 expressly provided that Veeravva would continue to enjoy possession of her husband’s estate throughout her lifetime, notwithstanding the adoption. The written statement filed by Veeravva and the second defendant, in paragraph 6, expressly declared that Veeravva had come into possession of her husband’s property, had recovered possession of the property covered by decree O S 20 of 1921 in the Subordinate Judge’s Court, Bellary, and that she had remained in sole possession of the said property up to the date of the statement. It further reiterated that although the second defendant was adopted on 11 October 1942, the adoption was subject to Veeravva retaining enjoyment, possession, and management of her husband’s property for the duration of her life.

An affidavit filed in this Court by the second defendant admitted that Veeravva continued to possess the estate of her adoptive father in accordance with the September 18, 1942 agreement. This admission was made against the second defendant’s own interest, suggesting that he would not have made such a statement unless it reflected the factual situation that Veeravva had remained in possession from her husband’s death to the present. In response to the affidavits of the second defendant and Veeravva asserting actual possession, the appellant failed to submit an affidavit containing a clear assertion, based on his knowledge, that Veeravva was not in possession. The affidavit filed by the appellant was characterized by the Court as consisting of submissions to the Court rather than a factual affidavit. In paragraph 2 of that affidavit, the appellant made the significant statement, “I understand that the possession of the suit properties has been and is now, in truth and in fact, with the alleged adopted son, the second petitioner. He is,” without explaining the basis of his understanding or affirming that the statement reflected his knowledge. As an alternative, the appellant’s paragraph 4 asserted that, should he succeed in proving the adoption to be invalid, the respondents could not claim that the possession of the first petitioner belonged to a widow of an intestate and invoke the provisions of section 14 of the Succession Act. He also submitted that, even on the respondents’ alternative grounds, Veeravva’s estate had been divested by the adoption, and that because she had come into possession by reason of the pre‑adoption agreement, section 14 of the Act was not applicable. The Court noted that, if the question of Veeravva’s possession were to be decided solely on the affidavits before it, there would be no difficulty in reaching a conclusion.

The appellant’s affidavit contained a declaration in paragraph two stating that the properties were “in possession of these properties and is dealing with them.” The affidavit did not explain how the appellant formed that understanding, nor did it affirm that the statement reflected the appellant’s personal knowledge. In other words, the appellant did not expressly confirm that the facts set out in paragraph two were based on what he actually knew. As an alternative argument, the appellant relied on paragraph four of the same affidavit, where he asserted that if he were able to prove that the adoption was false or invalid, the petitioners could not claim that the first petitioner’s possession amounted to that of a widow of an intestate and could not invoke section fourteen of the Succession Act. He further argued that, even if the respondents’ additional grounds were accepted, Veeravva’s estate had been divested by the adoption and that her possession arose solely from the pre‑adoption agreement identified as Exhibit D‑25, rendering section fourteen inapplicable to her case. The appellant suggested that, had the court been permitted to resolve the issue of Veeravva’s possession solely on the basis of the affidavits on record, there would be no difficulty in concluding that she was in possession of her husband’s estate at the moment the Act became operative. However, the Court noted that the present dispute has only now been raised and that the appellant has not been given a genuine chance to prove his contention that the second defendant, and not Veeravva, holds actual possession of the property.

Consequently, the Court found it necessary to examine the true scope and effect of sub‑section (1) of section fourteen of the Succession Act. The Court explained that if the phrase “possessed by a female Hindu” in that sub‑section is limited to literal, physical possession, then a factual finding on the question of actual possession would be required. Conversely, if the phrase carries a broader meaning that includes constructive possession or legal possession, the preliminary objection could be resolved on the basis that Veeravva was in such possession at the relevant time. The Court observed that section fourteen has been extensively scrutinised by various High Courts. In the decisions of Rama Ayodhya Missir v. Raghunath Missir and Mt. Janki Kuer v. Chhathu Prasad, the Patna High Court held that the effect of sections fourteen and fifteen of the Act was to transform a reversioner under Hindu law into a holder of an absolute estate, regardless of whether the property was acquired before or after the Act’s commencement, thereby eliminating any right of reversion or any form of “spes successionsis.” However, the High Courts of Calcutta, Andhra Pradesh and Madhya Pradesh have not adopted the Patna High Court’s view. Notably, the Madhya Pradesh High Court, in Mt. Lukai v. Niranjan, dissented from the Patna decisions, signalling a divergent interpretation of the statutory language concerning possession by a female Hindu.

In the earlier decisions of the Patna High Court, the court had taken a position that the provisions of sections 14 and 15 of the Act converted a limited interest of a Hindu woman in property into an absolute interest, thereby removing any right of reversion. However, the Patna High Court later overruled those earlier rulings in the case cited as Harak Singh v. Kailash Singh, reported in A.I.R. 1957 Pat. 480, A.I.R. 1957 Pat. 674, and A.I.R. 1058 Madh. Pra. 160. In that judgment the court correctly observed that the purpose of the Act was to improve the legal status of Hindu women by enlarging the limited interest they held in inherited or otherwise held property to an absolute interest, but only when such women were in possession of the property at the time the Act came into force and could therefore benefit from its provisions. The court also noted that the Act was not intended to favour purchasers who knowingly bought the property from limited owners without a justifiable necessity before the Act became effective, when the sellers themselves possessed only a limited interest under Hindu law. The matter before the present court turned on the interpretation of the phrase “any property possessed by a female Hindu, whether acquired before or after the commencement of this Act” found in section 14. Section 14 referred to property that was either acquired before or after the Act’s commencement, and required that such property be possessed by a female Hindu. The reference to property acquired before the commencement made the provision retrospective; nevertheless, even for such property the female Hindu had to be in possession at the moment the Act became operative for the provision to apply. In the case at hand there was no dispute that Veeravva had acquired her deceased husband’s estate before the Act’s commencement. To bring section 14 into operation, it needed to be shown that she still possessed the property when the Act came into force. The appellant argued that at the relevant time the estate was actually in the possession of the second defendant, not Veeravva. The respondent countered that the words “possessed by” should be given a broader meaning than mere physical control, although physical possession could be included. The court referred to a prior decision, Gaddam Venkayamma v. Gaddam Veerayya, reported in A.I.R. 1958 Pat. 581, where Justice Viswanatha Sastri, with the concurrence of Justice Satyanarayana Raju, explained that the term “possessed” in section 14 denoted possession on the date the Act became effective. The court further clarified that possession under section 14 need not be actual physical occupation or personal control by the Hindu woman; instead, it could include legal possession, such as that of a licensee, lessee, mortgagee, guardian, trustee, or agent acting on behalf of the female owner.

In this case the Court explained that the term “possessed” appearing in section 14 must be understood in a broad manner, meaning the condition of owning or having something in one’s hand or power, and that such possession also embraces the receipt of rents and profits from the property. The Court noted that previously learned Judges had observed that even when a trespasser physically occupied land belonging to a female Hindu owner, the law could still consider the land to be in the possession of the female owner, provided the trespasser had not perfected his title to the land. The Court held that it was unnecessary to delve as deeply into that extensive analysis as the earlier Judges had done; it was sufficient to affirm that “possessed” in section 14 is employed in a wide sense, denoting the state of owning or holding something in one’s hand or power. The Court then referred to the decision in Gostha Behari v Haridas Samanta, where Justice P N Mookherjee had expressed that the words “any property possessed by a female Hindu” require that the property be in the possession of the female concerned at the date the Act commenced. That judgment clarified that the possession contemplated by the statute may be actual, constructive, or any form recognized by law, but unless the female Hindu, whose limited interest in the disputed property is alleged to have been transformed into an absolute estate under the specific provision, was at least in such possession—taken in its widest possible meaning—when the Act became operative, the provision would not apply. The Court adopted this interpretation as the correct approach to construing the phrase “any property possessed by a female Hindu.” Applying this reasoning to the present matter, the Court observed that if the adoption were held to be invalid, the entire estate of the deceased Veerappa would belong to his widow Veeravva. Even assuming that the second defendant was in actual physical possession of the estate, his possession was merely permissive, and Veeravva should be regarded as having constructive possession of the estate through the second defendant’s occupancy. Consequently, at the moment the Act came into force, the property of Veerappa must be regarded, in law, as being possessed by Veeravva. The Court also addressed an argument based on Veerappa’s will, Exhibit P₂(a), which suggested that Veeravva received only a restricted estate in the properties listed in paragraph 1 of that will. The Court noted that the provisions of paragraph 4 of the will stipulated that such restrictions would become effective only if the trustees named in the will and Veeravva disagreed. No evidence was presented to show that any disagreement between the trustees and Veeravva actually occurred, and therefore the Court could not conclude that the restrictive provisions had been activated.

The Court observed that the provisions of paragraph 4 of the will had not been given effect because there was no evidence that the trustees and Veeravva had disagreed. Paragraph 12 of the will further indicated that if the adoption were invalid, the property would devolve upon Veeravva as though she were an intestate heir. Consequently, the Court concluded that the provisions of paragraph 4 could not assist the appellant in invoking sub‑section (2) of section 14 of the Act. The Court then examined the agreement identified as Exhibit D‑25, dated September 18, 1942, and found that the document did not convey any estate to Veeravva. The agreement merely recorded that the guardians of the boy to be adopted and Veeravva agreed that, even if the adoption occurred, Veeravva would retain possession of her husband’s estate. The agreement further provided that she would enjoy that estate throughout her lifetime, without any condition of relinquishment. The Court found no record on the file that could reasonably support the application of sub‑section (2) of section 14 of the Act to the facts of the present case. It was submitted that Veeravva’s act of adopting the second defendant was intended to introduce a stranger. The submission further argued that such a transaction could be challenged by a reversioner because any alienation made by her during her lifetime was contestable. The Court noted that reliance was placed on section 42 of the Specific Relief Act, particularly Illustration (f). It held that this illustration dealt with the estate of a Hindu widow and did not involve a full owner. The Court explained that the right of a reversioner under section 42 was limited to preserving the estate of a limited owner for the benefit of all reversioners. Consequently, the Court held that no such right existed against a full owner. Based on these findings, the Court concluded that, under the Act, Veeravva had become a full owner of her husband’s estate and therefore the suit could not succeed. Accordingly, the Court held that the appellant’s suit was not maintainable in view of the provisions of section 14 of the Act, even assuming that the adoption of the second defendant was invalid. The Court therefore dismissed the appeal, ordered costs against the appellant, and entered the judgment accordingly.