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VIRENDER SINGH, J. –

Appellants have preferred the present Regular Second Appeal, under Section 100 of the Code of Civil Procedure (hereinafter referred to as the ‘CPC’), against the judgment and decree dated 04.06.2004, passed by the Court of learned District Judge, Kullu, Himachal Pradesh (hereinafter referred to as the ‘learned First Appellate Court’), in Civil Appeal No.14 of 2004, titled as ‘Roshan Lal & Others Versus Dhali Devi & Others’.

2. By way of judgment and decree dated 04.06.2004, the learned First Appellate Court has dismissed the appeal of the present appellants, which has been preferred against the judgment and decree dated 27.11.2003, passed by the Court of learned Civil Judge (Senior Division), Lahaul-Spitti at Kullu, Himachal Pradesh (hereinafter referred to as the ‘learned trial Court’) in Civil Suit No.105 of 2003 (1994), titled as ‘Roshan Lal & Others Versus Dhali Devi & Others’.

3. Vide judgment and decree dated 27.11.2003, the learned trial Court has dismissed the suit, preferred by the present appellants.

4. For the sake of convenience, the parties to the present lis are, hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court.

5. Brief facts, necessary for the adjudication of the present appeal, as borne out, from the record, are as under:-

5.1. Plaintiffs had filed the civil suit, against the defendants, on the ground that plaintiff No.6 is minor, who cannot sue personally, as such, he has filed the suit, through his mother Sarla Devi, who is the natural guardian. According to them, one Man Dass was owner in possession of the land (hereinafter referred to as the ‘suit land’), fully detailed and described, as under:-

(a) land measuring 61-2 bighas comprised under khata khatauni No.10/12 to 14, Khasra Nos.5640, 6957, 6958, 6975, 6973, 7014, 7024, 7026, 7081, 5314, 5362, 5316, 5322, 5325, 5363, 5512, 5514, 5555, 5725, 6990, 7016, 7021, 7031, 7036, 7040, 7053, 7054, 7058, 5396 kitta 31 incorporated in the jamabandi for the year 1990-91 of Phati and Kothi Kais Tehsil and Distt. Kullu.

(b) land measuring 5-12 bighas khasra No.5394 khta khatauni No.11/15 incorported in the jamabandi for the year 1990-91 of Phati and Kothi Kais Tehsil and Distt. Kullu.

(c) land measuring 4-9 bighas comprised in Khasra No.6986, 7012, 5327, 5328, 5330 khata khatauni No.12/16 and 17 incorported in the jamabandi for the year 1990-91 of Phati and Kothi Kais Tehsil and Distt. Kullu.

(d) land measuring 24-3-0 bighas comprised in khasra No.7061, 7071, 7072, 7078 khata khatauni No.6 min/ 8min to 10min situated in Phati and Kothi Kais Tehsil and Distt. Kullu to the extent of 1/4th share.”

5.2. It is the further case of the plaintiffs that after the death of Man Dass, his estate, including the suit land, was inherited by his three sons, namely Surtu, Revtu and Biru, in equal share. Surtu, Revtu and Biru, all sons of Man Dass, had expired before 1950 and the estate of Biru was wrongly mutated, in the name of defendant No.1-Dhali Devi, whereas, the estate of Revtu was inherited by his son Golu and the estate of Surtu was inherited by his son namely Thanu and widow Ghaini.

5.3. It is the further case of the plaintiffs that when the estate of Biru, s/o Man Dass, was wrongly mutated, in the name of Dhali Devi, then, defendant No.1, being the near reversioners of Biru, Thanu, Golu and Ghaini, had filed Civil Suit No.51/50, titled as ‘Thanu etc. Versus Smt. Dhali’, against defendant No.1, alleging therein that she was married and had given birth to a child, when, her father-Biru expired. But, subsequently, the abovesaid suit was compromised between the parties, whereby, 1/4^th share of the estate of Biru was given to defendant No.1, as, limited estate i.e. during his lifetime or till her marriage and after that, the same was to be reverted to the near reversioners of Biru. All these facts have been asserted by the plaintiffs to show that in view of the said compromise, defendant No.1 has become limited owner of 1/4th share of the estate, left by Biru.

5.4. It is the further case of the plaintiffs that the said compromise was effected on 18.07.1950 and thereafter, defendant No.1-Dhali Devi, in the year 1953, solemnized the marriage with Devi Singh. Out of the said wedlock, defendant No.1-Dhali Devi has given birth to a child, before the succession of Biru opened.

5.5. It is the further case of the plaintiffs that after the marriage of Dhali Devi with Devi Singh, as per the compromise decree, the land, which was given to Dhali Devi, would have to revert to the near reversioners of Biru, as, defendant No.1-Dhali Devi would relinquish and abandon her share in the suit land, in favour of the near reversioners of Biru.

5.6. As per the case, set up by the plaintiffs, after the marriage of Dhali Devi with Devi Singh, as per customs, as well as, according to the compromise decree, the property, which was given to her was to be reverted to the near reversioners of Biru, as, Dhali Devi relinquished and abandoned her share in the suit land, in favour of the near reversioners of Biru. Explaining the near reversioners of Biru, it has been pleaded that the same was Golu, the grandfather of the plaintiffs, Thanu s/o Sutru and they have become owners in possession of the suit land.

5.7. In addition to this, according to the plaintiffs, Pune Ram, father of the plaintiffs, is also entitled for the suit land, being reversioner and asserting his right on the basis of the Will of his father dated 12.02.1994, plaintiffs have pleaded that they have become owners in possession of the land, falling in the share of their father. Thanu is also stated to have expired and inherited by three sisters namely Kali, Chetnu and Almu. Chetnu has also expired and succeeded by Dev Kala, Gulab Singh, who are stated to be defendants No.4 to 7 and successors-in-interest of Thanu.

5.8. It is the further case of the plaintiffs that despite the above facts, the revenue entries still continued in the name of defendant No.1 and as such, she, by taking the undue advantage of wrong revenue entries, had wrongly mortgaged the land, measuring 5-1-0 bighas comprised of Khasra Nos.5396 and 5399 in favour of defendant No.8 and she has also mortgaged 1/4th share of the land measuring 5-12 bighas comprised of Khasra No.5394, khata khatauni No.11/15 in favour of defendant No.6, but, according to them, possession has not been delivered to the above persons. Not only this, according to the plaintiffs, defendant No.1 has executed a fictitious sale deed dated 24.05.1994 in favour of defendant No.2 and sale of 20/270 share in favour of defendant No.3. All these transactions are stated to be void and without possession of valid title. The gift deed dated 07.05.1986, executed by defendant No.1, in favour of defendant No.9, is stated to be null and void and not binding upon the rights of the plaintiffs.

5.9. It is the further case of the plaintiffs that they came to know about the wrong and void transactions in the first week of June, 1994 and when the defendants started claiming themselves to be joint owners in possession of the suit land. They have also taken the plea of adverse possession, over the suit land, in case, the Court comes to the conclusion that the relinquishment of the rights of defendant No.1 was not legal and valid.

6. On the basis of above facts, the plaintiffs have sought the relief, as claimed in the suit.

7. When put to notice, the suit has been contested/resisted by the defendants, by filing their written statements.

8.1. In the written statement, filed by defendant No.1, she has taken the preliminary objections that the suit is barred by limitation; that the suit is bad for nonjoinder of necessary parties, as, four daughters of Pune Ram and father of the plaintiffs, have not been arrayed as parties to the suit; that the suit is not maintainable and that the plaintiffs are estopped from filing the suit by their act and conduct.

8.2. On merits, factual position, as contained in paras No.1 to 3, has not been disputed. However, the suit has been contested on the ground that the estate of Biru was inherited by Dhali Devi, defendant No.1, being unmarried daughter, who was residing with and rendering services to her father Biru. After the death of Biru, she stepped into the shoes of her father.

8.3. It has also not been disputed that Thanu, Golu and Ghaini had filed Civil Suit No.51 of 1950 against defendant No.1 and even, it has not been disputed that later on, the said suit was compromised and the compromise decree was passed. She has specifically denied that she had married during the lifetime of her father Biru. In this regard, she has relied upon the compromise decree and asserted that she was married and had given birth to a child during the lifetime of her father Biru.

8.4. According to defendant No.1, by way of the said compromise, 1/12th share in the estate of Biru was given to the plaintiffs and defendant No.1 was admitted to be owner in possession of the remaining estate of Biru. She has also admitted that the limited estate was created in favour of defendant No.1. Factual position, regarding the marriage of defendant No.1 with Devi Singh, in the year 1953, has been denied and according to her, the said marriage was solemnized in the year 1959-60.

8.5. According to her, the limited estate, created by her father, was enlarged into full and absolute ownership with commencement of the Hindu Succession Act. She has admitted the mortgage in favour of defendant No.1, as valid one. However, according to her, later on, the same was redeemed and now, the same is in her possession. Further, mortgage has also been redeemed. However, she has termed the sale deeds dated 24.05.1994 and 06.05.1994, in favour of defendants No.2 and 3, to be null and void and not binding upon the rights of defendant No.1, on the ground that no sale consideration was ever paid to her, nor she has appointed her son Duglu Ram as her General Power of Attorney holder. The plea of adverse possession has also been controverted.

9. Defendants No.2 and 3 have filed their separate written statement by taking the preliminary objections that the suit is bad for non-joinder of necessary parties; that the suit is barred by limitation; that the suit is not properly valued for the purpose of Court fee; that the plaintiffs have no locus standi to file the suit; that defendants No.2 and 3 are the bona fide purchasers for consideration and that the suit is not maintainable.

9.1. Supporting their sale deeds dated 24.05.1994 and 06.05.1994, they have asserted that they are the bona fide purchasers, who had purchased the subject matter of the sale deeds, without knowing any defect in the title.

10. Defendant No.10 has also filed the written statement by taking the preliminary objections, which have been taken by other defendants.

10.1. On merits, the contents of the plaint have been denied. He has supported the gift deed, executed in his favour, by defendant No.9.

11. On the basis of above facts, a prayer has been made to dismiss the suit.

12. Plaintiffs have filed the replication, to the written statements, filed by the said defendants, denying the preliminary objections, as well as, the contents of the written statements, by virtue of which, the suit has been contested, by re-asserting the contents of the plaint.

13. From the pleadings of the parties, following issues were framed, by the learned trial Court, vide orders dated 04.09.1997 and 30.07.2002:-

“1. Whether the plaintiffs are entitled for the relief of declaration as prayed for? OPP

2. Whether the suit is time barred? OPD

3. Whether the suit is bad for non-joinder of necessary parties as alleged? OPD

4. Whether the suit is not maintainable in the present form? OPD

5. Whether the plaintiffs are estopped from filing the present suit by their act and conduct? OPD

5-A. Whether the suit is barred by principle of res judicata? OPD

5-B. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD

5-C. Whether the suit against defendant Bir Singh is not properly instituted and constituted as alleged? OPD

6. Relief.”

14. After framing of the issues, parties to the lis were directed to adduce evidence.

15. After closure of the evidence and upon hearing learned counsel for the parties, the learned trial Court has dismissed the suit of the plaintiffs, vide judgment and decree dated 24.12.2002.

16. Feeling aggrieved from the said judgment and decree dated 24.12.2002, the plaintiffs have preferred the appeal bearing Civil Appeal No.4 of 2003, titled as ‘Roshan Lal & Others Versus Dhali Devi & Others’, before the learned First Appellate Court.

16.1. The learned First Appellate Court, while deciding an application, under Order VI Rule 17 of CPC, had framed the following additional issue No.5(d) and thereafter, vide judgment and decree dated 08.09.2003, the matter was remanded back to the learned trial Court:-

“5-D Whether the plaintiffs are entitled for alternative relief of possession, as alleged? OPP”

17. Thereafter, the learned trial Court had again dismissed the suit, vide judgment and decree dated 27.11.2003.

18. Feeling aggrieved from the said judgment and decree dated 27.11.2003, the plaintiffs had preferred the appeal bearing Civil Appeal No.14 of 2004, titled as ‘Roshan Lal & Others Versus Dhali Devi & Others’, before the learned First Appellate Court and the learned First Appellate Court had dismissed the appeal, vide judgment and decree dated 04.06.2004.

19. Dissatisfied with the said judgment and decree, the plaintiffs have preferred the present Regular Second Appeal, before this Court, on the ground that both the Courts below have not appreciated the fact that the controversy, involved in the present case, is to be decided in view of the judgment and decree Ex.P-7 and Ex.P-5. Both the Courts below are stated to have wrongly held that the provisions of Section 14 of the Hindu Succession Act are applicable.

20. The findings of the learned Courts below are stated to be contradictory, as, on the one hand, it has been held that the parties to the lis are governed by the tribal custom, as prevailed in Sub-Division of Kullu, whereas, on the other hand, they have applied the provisions of Hindu Succession Act.

21. The findings of the learned Courts below have further been assailed on the ground that re-marriage of Dhali Devi with Devi Singh has been found to have taken place, as such, in view of the judgment and compromise decree Ex.P-5 and Ex.P-7, defendant No.1 ceased to have any right, title and interest in the estate of Biru.

22. According to the appellants, both the Courts below have not considered the fact that the respondents are bound by the admission of respondent No.1, as contained in the judgment Ex.P-7 and decree Ex.P-5. It has wrongly been held by both the Courts below that the suit of the plaintiffs is barred by limitation.

23. On the basis of above facts, Sh. G.D. Verma, Senior Advocate, assisted by Mr. Sumit Sharma, Advocate, appearing for the appellants, has prayed that the appeal may be allowed, by setting aside the judgment and decree, passed by the learned trial Court and affirmed by the learned First Appellate Court by decreeing the suit, as prayed for.

24. Per contra, Sh. Bhupinder Gupta, Senior Advocate, assisted by Mr. Vedant Ranta, Advocate, has supported the judgment and decree, passed by the learned trial Court and affirmed by the learned First Appellate Court, with a prayer to dismiss the appeal.

25. The present appeal has been admitted, by this Court, on 10.11.2005, on the following substantial questions of law:-

“1. Whether both the courts below have acted illegally by failure to determine the dispute between the parties, on the basis of earlier judgment, which has been brought on record, as Ex.P-7 and Ex.P-5 Decree.

2. Whether the right of succession between the parties have to be regulated according to the local Tribal/custom of Sub Division Kullu and if so whether the both the Courts below having failed to apply the same, therefore, the findings are vitiated for want of proper appreciation of the controversy.

3. Whether the right of succession regarding the estate of late Beeru has to be regulated under the provisions of Hindu Succession Act, 1956, though he admittedly had died prior to 1950 or the right of succession has to be regulated under the provisions of Tribal Custom of Sub Division, Kullu.

4. Whether the subject matter of the dispute regarding reversionary rights of the plaintiffs have to be determined on the basis of Tribal Custom of Sub Division, Kullu, as admittedly applicable to the parties and judgment and decree Ex.P-7 and Ex.P-5 wherein the dispute was compromised between the plaintiffs and defendants.

5. Whether the provisions of Hindu Succession Act are not applicable to the subject matter of the dispute, because the parties are belonging to the Sub Division, Kullu, where right of succession is regulated under the provisions of Tribal Custom and Sh. Beeru died prior to 1950, therefore, provisions of Hindu Succession Act are not applicable.

6. Whether there being admission of the respondents in compromise decree and judgment Ex.P-5 and Ex.P-7, therefore, neither the provisions of Section 14(1), nor the provisions of Section 14(2) of Hindu Succession Act are applicable to the parties in suit.

7. Whether the respondents are not in possession of the suit land and, therefore, the respondent No.1 cannot be given benefit of Section 14 of the Hindu Succession Act.

8. Whether the appellants being already owners in possession of the property in suit, therefore, the claim could not be held to be barred by limitation.”

26. Thereafter, the following additional substantial question of law has been framed, by this Court, vide order dated 05.08.2024:-

“Whether both the Courts below have failed to consider and discuss oral and documentary evidence on record and therefore, findings are liable to be set aside.”

27. So far as the substantial question of law, relating to the applicability of the custom, is concerned, except a stray reference, given in paragraph No.8 of the plaint, there is no other pleading in the plaint, as to how the parties are governed by the custom. Relevant paragraph No.8 of the plaint is reproduced, as under:-

“8. That after passing the above said compromise decree in civil suit No.51/50 dated 18-7-50, Smt. Dhali defendant No.1 in the year 1953, solemnized her marriage with Devi Singh above with whom she had begotten a child before the succession of Biru according to the local custom of the area and since then, she was residing and is residing as wife of Devi Singh in the house of her husband.”

(Emphasis supplied)

28. In the absence of the specific pleading about the custom, merely raising the above plea in the grounds of appeal, does not help the case of the plaintiffs. Once, it has been held that the custom has not been pleaded nor the same has been proved, then, this Court has no hesitation to hold that the provisions of Hindu Succession Act, 1956, will be applicable, in this case.

29. In this case, it has not been disputed that Thanu, Golu and Ghaini had filed the civil suit against Dhali Devi (defendant No.1), which was compromised between the parties on 04.04.1950 and thereafter, the compromise decree was passed. In the said compromise, 1/12th share had been given to the plaintiffs and the remaining share was held to be with defendant No.1, till her life or till marriage, as daughter of Biru. After the death of Biru, his estate was inherited by defendant No.1.

30. In this admitted factual position, the question, which arises for determination, before this Court, is whether the limited estate, created in favour of defendant No.1, will enlarge into her absolute estate, after coming into force the Hindu Succession Act, 1956. In such situation, it has to be determined whether the provisions of Section 14(1) of the Hindu Succession Act will be applicable or the provisions of Section 14(2) of the Hindu Succession Act will be applicable. Provisions of Section 14 of the Act ibid are reproduced, as under:-

“14. Property of a female Hindu to be her absolute property.?

(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 devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.”

31. Much has been argued by learned counsel, appearing for the plaintiffs, that in view of the judgment and decree, Ex.P-5 and Ex.P-7, the property, which was held by defendant No.1, was the restricted estate. It is also the case of the plaintiffs that due to the marriage, solemnized by defendant No.1, in the year 1953, the property, which was in the name of defendant No.1, as limited estate, had been reverted back to the reversioners.

32. Per contra, defendant No.1 has taken the plea that she has solemnized the marriage, in the year 1959-60.

33. The pivotal point to be determined, in this case, is about the factum of marriage of Dhali Devi, as, if the marriage has been solemnized on or after 17.06.1956, then, the same has no bearing upon the rights of defendant No.1.

34. The plaintiffs have filed the replication to the written statement, filed by defendant No.1 and specifically denied that Dhali Devi has solemnized marriage in the year 1959-60. About those material facts, PW-1, Roshan Lal, has simply deposed that defendant No.1 has solemnized marriage with Devi Singh and out of the said wedlock, she has given the birth to one son. The said witness has not deposed about the material fact that Dhali Devi has solemnized the marriage in the year 1953, rather, in the cross-examination, he has admitted that Dhali Devi has solemnized the marriage with Devi Singh, in the year 1959-60.

35. In view of the above deposition, the stand of defendant No.1 that she has solemnized marriage in the year 1959-60 is not only probabilized, but stood proved, as, admission is the best piece of evidence.

36. As per the stand, taken by the plaintiffs, after the death of Maan Dass, his estate has been mutated in the name of defendant No.1-Dhali Devi. Although, they have pleaded that the same has wrongly been mutated, but, the fact is that the estate was devolved upon Dhali Devi after the death of her father.

37. At the cost of repetition, it is not in dispute that in the suit, filed against defendant No.1, a compromise had taken place and a stipulation was created, which has been reproduced above. The copy of the judgment and decree is on file as Ex.P-5 and Ex.P-7.

38. A three-Judge Bench of the Hon’ble Supreme Court in ‘Vaddeboyina Tulasamma and others Versus Vaddeboyina Sesha Reddi (dead) by L.Rs’, reported in AIR 1977 Supreme Court 1944, has considered the difference between provisions of Section 14(1) and 14(2) of the Hindu Succession Act, 1956. Relevant paragraphs 3 and 4 of the said judgment are reproduced, as under:-

“3. Since the determination of the question in the appeal turns on the true interpretation to be placed on sub-section (2) read in the context of sub-section (1) of section 14 of the Hindu Succession Act, 1956, it would be convenient at this stage to set out both the sub-sections of that section which read as follows:

"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 or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner what- ever, and also any such property held by her as stridharas immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shah 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." Prior to the enactment of section 14, the Hindu law, as it was then in operation, restricted the nature of the interest of a Hindu female in property acquired by her and even as regards the nature of this restricted interest, there was great diversity of doctrine on the subject. The Legislature, by enacting sub-section (1) of section 14, intended, as pointed by this Court in S.S. Munna Lal v.S.S. Raikumar(1) "to convert the interest which a Hindu female has in property, however, restricted the nature of that interest under the Sastric Hindu law may be, into absolute estate". This Court pointed out that the Hindu Succession Act, 1956 is a codifying enactment and has made far-reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance and sweeps away the traditional limitations on her powers of disposition which were regarded under the Hindu law as inherent in her estate". Sub-section (1) of section 14, is wide in its scope and ambit and uses language of great amplitude. It says that any property possessed by a female Hindu,. whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. The words "any property" are, even without any amplification, large enough to cover any and every kind of property, but in order to expand the reach and ambit of the section and make it all-comprehensive, the Legislature has enacted an explanation which says that property would include "both movable and immovable property acquired by a female Hindu by inheritance or device, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatever, and also any such property held by her as stridhana immediately before the commencement" of the Act. Whatever be the kind of property, movable or immovable, and whichever be the mode of acquisition, it would be covered by subsection (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 proprietary rights which were often regarded as evidence of her perpetual tutelage and to recognize her status as an independent and absolute owner of property. This Court has also in a series of decisions given a most expansive interpretation to the language of subsection (1) of section 14 with a view to advancing the social purpose of the legislation and as part of that process, construed the words 'possessed of' also in a broad sense and in their widest connotation. It was pointed out by this Court in Gummalepura Taggina Matada Kotturuswami v. Setra Veeravva (1) that the words 'possessed of mean "the state of owning or having in one's hand or power". It need not be actual or physical possession or personal occupation of the property by the Hindu female, but may be possession in law. It may be actual or constructive or in any form recognized by law. Elaborating the concept, this Court pointed out in Mangal Singh v. Rattno (2) that the section covers all cases of property owned by a female Hindu al- though she may not be in actual, physical or constructive possession of the property, provided of course, that she has not parted with her rights and is capable of obtaining possession of the property. It will, therefore, be seen that sub-section (1) of section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was 'subsequently acquired and possessed, she would become the full owner of the property.

4. Now, sub-section (2) of section 14 provides that 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. This provision is more in the nature of a proviso or exception to sub-section (1) and it was regarded as such by this Court in Badri Pershad v. Smt. Kanso Devi(1). It excepts certain kinds of acquisition of property by a Hindu female from the operation of sub-section (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of women in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in sub-section (1). It cannot be interpreted in a manner which would rob sub-section (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub-section (1). The language of sub-section (2) is apparently wide to include acquisition of property by a Hindu female under an instrument or a decree or order or award where the instrument, decree, order or award prescribes a restricted estate for her in the property and this would apparently cover a case where property is given to a Hindu female at a partition or m lieu of maintenance and the instrument, decree, order or award giving such property prescribes limited interest for her in the property. But that would virtually emasculate sub-section (1), for in that event, a large number of cases where property is given to a Hindu female at a partition or in lieu of maintenance under an instrument, order or award would be excluded from the operation of the beneficent provision enacted in sub-section (1), since in ,most of such cases, where property is allotted to the Hindu female prior to the enactment of the Act, there would be a provision, in consonance with the old Sastric law then prevailing, prescribing limited interest in the property and where property is given to the Hindu female subsequent to the enactment of the Act, it would be the easiest thing for the dominant male to provide that the Hindu female shall have only a restricted interest in the property and thus make a mockery of sub-section (1). The Explanation to sub-section (1) which includes within the scope of that sub-section property acquired by a female Hindu at a partition or in lieu of maintenance would also be rendered meaningless, because there would hardly be a few cases where the instrument, decree, order or award giving property to a Hindu female at a partition or in lieu of maintenance would not contain a provision prescribing restricted estate in the property. The social purpose of the law would be frustrated and the reformist zeal underlying the statutory provision would be chilled. That surely could never have been the intention of the Legislature in enacting sub-section (2). It is an elementary rule of construction that no provision of a statute should be construed in isolation but it should be construed with reference to the context and in the light of other provisions of the statute so as, as far as possible, to make a consistent enactment of the whole statute. 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. This constructional approach finds support in the decision in Badri Prasad's case (supra) where this Court observed that sub-section (2) "can come into operation only if acquisition in any of the methods enacted therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of the property". It may also be noted that when the Hindu Succession Bill 1954, which ultimately culminated into the Act, was referred to a Joint Committee of the Rajya Sabha, clause 15(2) of the Draft Bill, corresponding to the present subsection (2) of section 14, referred only to acquisition of property by a Hindu female under gift or will and it was subsequently that the other modes of acquisition were added so as to include acquisition of property under an instrument, decree, order or award. This circumstance would also seem to indicate that the legislative intendment was that sub-section (2) should be applicable only to cases where acquisition of property is made by a Hindu female for the first time without any pre-existing right-a kind of acquisition akin to one under gift or will. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of sub-section (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property.”

39. This view has again been reiterated by the two-Judge Bench of the Hon’ble Supreme Court in ‘Nazar Singh and others Versus Jagjit Kaur and others’, reported in AIR 1996 Supreme Court 855. Relevant paragraph 8 of the said judgment is reproduced, as under:-

“8. Section 14 and the respective scope and ambit of sub-section (1) and (2) has been the subject-matter of a number of decisions of this Court, the most important of which is the decision in V. Tulasamma v. V.Sesha Reddi (1977 (3) S.C.C.99)*. The principles enunciated in this decision have been reiterated in a number of decisions later but have never been departed from. According to this decision, sub- section (2) is 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. It has also been held that where the property is acquired by a Hindu female in lieu of right of maintenance inter alia, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of sub-section (2) even if the instrument, decree, order or award allotting the property to her prescribes a restricted estate in the property. Applying this principle, it must be held that the suit lands, which were given to Harmel Kaur by Gurdial singh in lieu of her maintenance, were held by Harmel Kaur as full owner thereof and not as a limited owner notwithstanding the several restrictive covenants accompanying the grant. [Also see the recent decision of this Court in Mangat Mal v. Punni Devi, (1995) 6 SCC 88 : (1995 AIR SCW 3885) where a right to residence in a house property was held to attract sub-section (1) of Section 14 notwithstanding the fact that the grant expressly conferred only a

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*Reference may also be had to the decision in Jagannathan Pillai v. Kunjithapadam Pillai (1987 (2) S.C.C.572) : (AIR 1987 SC 1493) which deals with post-Act acquisition of property by a female Hindu.

limited estate upon her.] According to sub-section (1), where any property is given to a female Hindu in lieu of her maintenance before the commencement of the Hindu Succession Act, such property becomes the absolute property of such female Hindu on the commencement of the Act provided the said property was "possessed" by her. Where, however, the property is given to a female Hindu towards her maintenance after the commencement of the Act, she becomes the absolute owner thereof the moment she is placed in possession of the said property (unless, of course, she is already in possession) notwithstanding the limitations and restrictions contained in the instrument, grant or award whereunder the property is given to her. This proposition follows from the words in sub-section (1), which insofar as is relevant read:

"Any property possessed by a female Hindu.....after the commencement of this Act shall be held by her as full owner and not as a limited owner". In other words, though the instrument, grant, award or deed creates a limited estate or a restricted estate, as the case may be, it stands transformed into an absolute estate provided such property is given to a female Hindu in lieu of maintenance and is placed in her possession. So far as the expression "possessed" is concerned, it too has been the subject-matter of interpretation by several decisions of this Court to which it is not necessary to refer for the purpose of this case.”

40. If the facts and circumstances of the present case are judged, in the light of the decisions of the Hon’ble Supreme Court, as referred to above, it is not in dispute that prior to the passing of the judgment and decree, Ex.P-5 and Ex.P-7, the property was in the name of defendant No.1 and she was joint owner in possession, along with other co-sharers. As such, there is no legal hesitation for this Court to hold that the property has not been ‘acquired’ by defendant No.1, by virtue of the judgment and decree, Ex.P-5 and Ex.P-7, rather, she has given 1/12th share, in favour of the plaintiffs, in Civil Suit No.51 of 1950, which was filed by Thanu, Golu and Ghaini.

41. Even, going by the stipulation, as contained, in the compromise decree, the marriage of defendant No.1 had not taken place on or before 16.06.1956. Admittedly, she was married in the year 1959-60, much after coming into force the Hindu Succession Act, 1956, on 17.06.1956. As such, her limited estate enlarges into absolute estate and she becomes full owner on the date of coming into force the Hindu Succession Act.

42. No other point has been urged or argued, before this Court.

43. Considering all these facts, the substantial questions of law, as framed, by this Court, are decided against the appellants, by holding that the learned trial Court, as well as, the learned First Appellate Court have rightly considered the oral, as well as, documentary evidence, led by both the parties and the findings of the learned Courts below do not require any interference, by this Court.

44. Consequently, the present appeal is dismissed. No order as to costs.

45. Pending application(s), if any, shall also stand disposed of.

46. Record be sent down.

Appeal dismissed.

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