judgement:
: Criminal Appeal No.232 of 1987.
From the Judgment and order dated 23.2.1987 of the Madras High Court in W.P. No.6290 of 1986.
K.K. Venugopal, C.S. Vaidyanathan, Probir Chowdhry, S.R. Bhatt and S.R. Setia for the Appellant.
M.M. Abdul Khader and A.V. Rangam for the Respondent.
789 The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal is by special leave.
Appellant challenged his order of detention under section 3(1)(i) of the (COFEPOSA for short) by filing a writ petition before the High Court and that application, has been dismissed.
As many as six contentions had been advanced before the High Court.
Though raised in the writ petition, the point relating to denial of a fair hearing before the Advisory Board has not been noticed by the High Court as a contention on behalf of the appellant, but counsel for the appellant has raised the same point before this Court and since the facts on which the ground is raised are not in dispute we find no objection to entertaining this contention now specifically raised in this appeal.
The hearing of the representation of the appellant by the Advisory Board was fixed for 25th November, 1986.
On that day the appellant had specifically requested the Advisory Board to permit one Mr. Sundararajan, a retired Assistant Collector of Central Excise to assist him as a friend.
The Board, as appears from the counter affidavit filed in this Court, turned down the request.
The counter affidavit states: "The Advisory Board has given its finding in rejecting the detenu 's request for assistance of a friend, namely, Mr. Sundararajan in paragraphs 2 and 3 of its report sent to the Government.
The Advisory Board has stated in paragraph 2 that the detenu filed a petition requesting the assistance of Mr. Sundararajan, a retired Assistant Collector of Customs.
The Advisory Board has stated in para graph 3 that Mr. Sundararajan has appeared before it and had stated that he was formerly employed in the customs department and he would like to assist the detenu.
In the same paragraph, the Advisory Board has also stated that it was admitted by Mr. Sunderarajan before the Advisory Board that he is not a friend of the detenu and because of his professional experience he liked to help the detenu.
In the same paragraph the Advisory Board has given its findings and reasons for rejecting the request of the detenu on the ground that Mr. Sundararajan not being a friend of the detenu, the Advisory Board did not consider it proper to allow him to represent the case of the detenu.
" H 790 It is thus clear from the allegations in the special leave petition and the counter affidavit that the appellant had requested the Board to allow him the assistance of a friend at the hearing and for the reasons and in the manner indicated in the counter affidavit the request was turned down.
In paragraph 9 of the special leave petition the appellant had alleged that on 25th November, 1986, the detaining authority was represented by customs officers of the rank of Deputy Collector of Customs and Superintendent.
In the counter affidavit filed before this Court there has been no denial of this fact.
Learned counsel appearing for the respondent did not dispute the allegation on the basis of the record as also the papers available with him that the department was represented at the hearing before the Advisory Board by a Deputy Collector of Customs.
The position, therefore, is that on 25th November, 1986 while the detaining authority was assisted by a Deputy Collector and a Superintendent of Central Excise the detenu was denied the assistance of a retired Assistant Collector of Central Excise.
On the recommendation of the Advisory Board, the detention order was confirmed.
The appellant is a clearing and forwarding agent at Madras and is said to be a young man aged around 26 or 27 years.
The case before the Board involved certain facets which require acquaintance with the legal provisions and the procedure and practice adopted by the customs authorities.
It is the case of the appellant that he was not very much acquainted with them and that is why he had sought the assistance of Sundararajan and even brought him before the Board that day.
In the facts of the case we are not in a position to reject the contention that if Sundararajan had been permitted to assist the appellant his case would have been better placed before the Advisory Board.
In the premises indicated above, two aspects have to be examined ( 1) whether the appellant was entitled to the assistance of Sundararajan as a friend; and (2) whether when the detaining authority was assisted by a Deputy Collector and a Superintendent of Central Excise, was the request of the appellant to be assisted by a retired Assistant Collector of Central Excise unjust and should the same had been refused? A two Judge Bench of this Court in Nand Lal Bajaj vs State of Punjab, [ ; was considering the question of legal assistance for the detenu before the Advisory Board.
It referred to the decision of this Court in the case of Smt.
Kavita vs State of Maharashtra, ; where Chinnappa Reddy, J. made the following observation: 791 "It is true that while section 8 (e) disentitles a detenu from claiming as of right to be represented by a lawyer, it does not disentitle him from making a request for the services of a lawyer." The learned Judge further stated: "As often than not adequate legal assistance may be essential for the protection of the Fundamental Right to life and personal liberty guaranteed by Article 21 of the Constitution and the right to be heard given to a detenu by section 8(e), COFEPOSA Act.
" It was further observed by Reddy, J. : "Therefore, where a detenu makes a request for legal assistance, his request would have to be considered on its own merit in each individual case.
In the present case, the Government merely informed the detenu that he had no statutory right to be represented by a lawyer before the Advisory Board.
Since it was for the Advisory Board and not for the Government to afford legal assistance to the detenu the latter, when he was produced before the Advisory Board, could have, if he was so minded, made a request to the Advisory Board for permission to be represented by a lawyer.
" Sen, J. in Nand Lal 's case (supra) observed: ". while the detenu was not afforded legal assistance, the detaining authority was allowed to be represented by counsel.
It is quite clear upon the terms of sub section (4) of section 11 of the Act that the detenu had no right to legal assistance in the proceedings before the Advisory Board, but it did not preclude the Board to allow such assistance to detenu, when it allowed the State to be represented by an array of lawyers.
" A Constitution Bench of this Court in A.K. Roy etc.
vs Union of India & Anr., ; dealt with this aspect.
Chandrachud, CJ, speaking for the Court stated: "We must therefore, held, regretfully though, that 792 the detenu has no right to appear through a legal practitioner in the proceedings before the Advisory Board.
It is, however, necessary to add an important caveat.
The reason behind the provisions contained in Article 22(4)(b) of the Constitution clearly is that a legal practitioner should not be permitted to appear before the Advisory Board for any party.
The Constitution does not contemplate that the detaining authority or the Government should have the facility of appearing before the Advisory Board with the aid of a legal practitioner but that the said facility should be denied to the detenu.
In any case, that is not what the Constitution says and it would be wholly inappropriate to read and such meaning into the provisions of Article 22.
Permitting the detaining authority or the Government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be in breach of Article 14, if a similar facility is denied to the detenu.
We must therefore make it clear that if the detaining authority or the Government takes the aid of a legal practitioner or a legal adviser before the Advisory Board the detenu must be allowed the facility of appearing before the Board through a legal practitioner.
We are informed that officers of the Government in the concerned departments often appear before the Board and assist it with a view to justifying the detention orders.
If that be so, we must clarify that the Boards should not permit the authorities to do indirectly what they cannot do directly; and no one should be enabled to take shelter behind the excuse that such officers are not "legal practitioners" or legal advisers.
Regard must be had to the substance and not to the form since, especially, in matters like the proceedings of Advisory Boards, whosoever assist or advises on facts of law must be deemed to be in the position of a legal adviser.
We do hope that Advisory Boards will take care to ensure that the provisions of Article 14 are not violated in any manner in the proceedings before them . ".
Learned counsel for the respondent does not dispute that what has been stated above is the law applicable to the facts of this case.
We have already found that the detaining authority had the assistance of the Deputy Collector of Central Excise and a Superintendent of Central Excise.
In the words of Chandrachud, CJ, "they play the role of legal advisers".
The Board had no justification to refuse assistance of 793 Sundararajan to the appellant in such circumstances.
The rule in A. K. Roy 's case (supra) made it clear that the detenu was entitled to the assistance of a 'friend '.
The word 'friend ' used there was obviously not intended to carry the meaning of the term in common parlance.
One of the meanings of the word 'friend ', according to the Collins English Dictionary is "an ally in a fight or cause; supporter".
The term 'friend ' used in the judgments of this Court was more in this sense than meaning 'a person known well to another and regarded with liking, affection and loyalty. ' A person not being a friend in the normal sense could be picked up for rendering assistance within the frame of the law as settled by this Court.
The Advisory Board has, of course, to be careful in permitting assistance of a friend in order to ensure due observance of the policy of law that a detenu is not entitled to representation through a lawyer.
As has been indicated by this Court, what cannot be permitted directly should not be allowed to be done in an indirect way.
Sundararajan, in this view of the matter, was perhaps a friend prepared to assist the detenu before the Advisory Board and the refusal of such assistance to the appellant was not justified.
It is not for this Court to examine and assess what prejudice has been caused to the appellant on account of such denial.
This Court has reiterated the position that matters relating to preventive detention are strict proceedings and warrant full compliance with the requirements of law.
In view of the position of law and the facts of the case, we must hold that the refusal by the Advisory Board to permit the appellant to be assisted by Sundararajan as a friend was bad and continued detention of the appellant became vitiated.
Accordingly, this appeal is allowed and the order of detention is quashed.
The appellant is directed to be set at liberty forthwith.
P.S.S. Appeal allowed.

summary:
% The detenu, a clearing and forwarding agent aged around 26 or 27 years, was detained under section 3(1)(i) of the COFEPOSA Act.
On the day the representation was heard by the Advisory Board the detaining authority was being assisted by a Deputy Collector and a Superintendent of Central Excise.
A specific request of the detenu to permit a retired Assistant Collector of Central Excise to assist him as a friend was turned down on the ground that he was not a friend of the detenu, though the person was inclined to assist the detenu because of his professional experience.
The detention order was confirmed on the recommendation of the Advisory Board.
In the writ petition under article 226 of the Constitution challenging the order of detention it was contended for the detenu that he had sought the assistance of the retired officer because the case before the Board involved certain facets which required acquaintance with the legal provisions and the procedure and practice adopted by the Customs authorities, with which he was not well versed.
The writ petition having been dismissed, the father of the detenu filed special leave to appeal to this Court.
Allowing the appeal, ^ HELD: 1.1 The detenu was entitled to the assistance of a friend.
The refusal of the Advisory Board to permit him to be assisted by the retired officer was bad and his continued detention became vitiated.
[793E F] 1.2 The detenu was not very much acquainted with the legal provisions and the procedure and practice adopted by the customs authorities.
If the retired officer had been permitted to assist him, 788 his case would have been better placed before the Advisory Board.
A Moreover, when the detaining authority had the assistance of the Deputy Collector and a Superintendent of Central Excise, who play the role of legal advisers, the Board had no justification to refuse the assistance sought for by the detenu.
There was, therefore, denial of a fair hearing before the Advisory Board.
[792G H] Nand Lal Bajaj vs State of Punjab, ; ; Smt.
Kavita vs State of Maharashtra, [ ; and A.K. Roy etc.
vs Union of India & Anr.
, ; , applied.
2.1 The term 'friend ' used in the judgments of this Court was more in the sense of 'an ally in a fight or cause, or a supporter ', than meaning 'a person known well to another and regarded with liking, affection and loyalty '.
A person not being a friend in the normal sense could be picked up by a detenu for rendering assistance before the Advisory Board within the frame of the law as settled by this Court.1793B C] 2.2 The advisory Board has, of course, to be careful in permitting assistance of a friend in order to ensure due observance of the policy of law that a detenu is not entitled to representation through a lawyer.
What cannot be permitted directly should not be allowed to be done in an indirect way.
[793C D] 3.
Matters relating to preventive detention are strict proceedings and warrant full compliance with the requirements of law.
It is not for this Court to examine and assess what prejudice has been caused to the detenu on account of denial of assistance.[1793D E] 4.
The order of detention is quashed.
The detenu be set at liberty forthwith.


judgement:
ition No. 1702 of 1986.
(Under Article 32 of the Constitution of India) K.M.M. Khan Amicus Curiae for the Petitioner.
O.P. Sharma, Mrs. Subhadra and P. Parmeshwaran for the Respondents.
The Judgment of the Court was delivered by B.C. RAY, J.
The petitioner who was a Havaldar in the Army (No. 4 142276) has moved this writ petition praying for an order directing the respondent Nos. 1 to 3 to give pensionary benefit to the petitioner as he has served about 19 years in the army as a Havaldar.
The petitioner has stated that in the first spell he has served in Kumaon Regiment from November, 1939 to August, 1947 during the second world war.
He was released from the army service in August, 1947 in the rank of Havaldar (No. 16235).
The petitioner was again recalled during Kashmir operations, in the Kumaon Regiment and he served in the Army Supply Corps (MT) from July, 1948 to July, 1953 in the rank of Havaldar (DUR No. 6556074).
The petitioner further stated that he was recalled from Army Supply Corps (MT) by Kumaon Regiment and transferred to impart training in the Lok Sahayak Sena of K.R.C. Platoon No. 28 where he served from July, 1953 to July, 1956 in the rank of Havaldar.
As his job was to impart military training to Lok Sahayak Sena which is like NCC, he retained a regular army No. 4142276.
The petitioner stated that in an alleged incident of storing illicit arms in his house, there was a police raid and all his papers 771 were taken away by the police and as such he had no papers left with him to prove his service in the regular army except a statement of accounts QE 11/56, a copy of which has been annexed as annexure P 2.
It has been stated that the petitioner was intimated by a letter dated 27.9.1983 issued by the District Sanik Welfare and Resettlement office, Almora in reply to his representation for pension that he has not been in the army service for a period of 15 years as required, to be entitled to get pension according to Army Pension Rules.
His claim for army pension was, therefore, rejected: This letter has been annexed as annexure P 5 to the writ petition.
The petitioner has stated in the writ petition that his service rendered in the LSS (third spell) should be treated as service in the army and he having served for more than 15 years in the army is entitled to pension.
An affidavit in opposition has been filed on behalf of the respondents sworn by Capt.
P.E. Joseph.
In para 1 of the said affidavit it has been stated that the petitioner was originally enrolled with the Kumaon Regiment on 24th November, 1940 and discharged from service with effect from 26th October, 1946.
He was subsequently re enrolled in ASC (MT) with Army No. 6556074 on 8th March, 1948 and discharged from there on 20th May, 1952.
It has been further stated that in the third spell of service he was re enrolled with the Kumaon Regiment on 2nd March, 1955 for Lok Sahayak Sena and allotted Army No. 4142276.
He was discharged from there on 2nd September, 1957.
It has been further stated in para 3 of the said affidavit that the claim of the petitioner that he was in army service for over 19 years was not based on facts.
It has been further stated that his service in the first two spells is 10 years and 54 days only and even if his service with 29 LSS is counted towards qualifying service his total service would be less than 15 years.
So he will not be entitled to pension as per the extent army rules.
The petitioner on the other hand was unable to produce relevant documents in support of his statement regarding the period of his service in the army rendered both in the first and second spell of service.
It appears from a letter dated 21st October, 1982 issued by the Lieutenant, Sahayak Abhilekh Adhikari, Asstt.
Record officer for OIC Records that the service rendered by the petitioner in LSS cannot be counted towards pension as the members of that unit are not treated as army personnel.
This letter has been annexed as annexure 'D ' to the counter affidavit.
It has been further stated in the affidavit that since the individual has not served in the army as an incumbent for more than 15 years, he is not entitled to any pension as contemplated under the army rules.
772 A supplementary counter affidavit on behalf of the respondents verified by 2nd Lieutenant Jagdish Singh, Records Kumaon Regiment, Ranikhet has been filed wherein it has been stated in para 9 that the petitioner having not completed the required 15 years of service, was not entitled to pension as per prevalent rules.
It also appears from the letter dated 3rd February, 1987 issued under the signature of Major, Senior Record officer for officer in Charge addressed to the organisation Directorate, Adjutant General 's Branch, Army Headquarters that since the petitioner had not completed 15 years pensionable service in both the spells, he was not entitled to service pension as per the existing orders.
It has been further stated therein that the petitioner 's service in 28 National Volunteer Force (LSS) training team was not countable towards pension for which necessary clarification had already been given by the CDA(P), Allahabad vide letter dated 21st October, 1982.
The respondents at the time of hearing produced the relevant records wherefrom it appears that the petitioner has not completed 15 years of army service as his service in the LSS can not be treated as army service.
It is also evident that the statements of the petitioner regarding the periods of service rendered by him in the first and the second spell are inconsistent with his record of service as mentioned in the letter dated February 3, 1987, annexed as annexure 'B ' to the supplementary counter affidavit filed on behalf of the respondents as well as from the letter issued under the signatures of Sahayak Abhilekh Adhikari, Asstt.
Record officer for OIC Records dated October 16, 1981, annexed as annexure P 4 to the writ petition The army regulation Nos. 126 and 132 were also placed before us in this connection.
We are constrained to hold that the petitioner has not rendered 15 years of army service to be able to get the benefit of army pension as required under the army rules.
Writ Petition is therefore, dismissed.
There will however.
be no order as to costs.
P.S .S.
Petition dismissed.

dataset_name: IN-Abs

summary:
Regulation No. 132 of Pension Regulation for the Army, 1961 (Part I) prescribes minimum qualifying colour service of fifteen years for earning service pension.
Regulation No. 126 provides for counting of former service.
The petitioner 's representation for pension was rejected on the ground that he had not been in the Army service for a period of 15 years as required under the Army Pension Rules.
In the writ petition the petitioner claimed that he had served in the Army from November 1939 to August 1948, when he was released in the rank of Havaldar, that he was again recalled and served in the Army Supply Corps (MT) from July 1948 to July 1953 in the rank of Havaldar, when he was again recalled by the Kumaon Regiment and served in the Lok Sahayak Sena from July 1953 to July 1956 in the rank of Havaldar.
He further stated that service rendered by him in the LSS (third spell) should be treated as services in the army and he having served for more than 15 years m the army was entitled to pension.
His claim that he was in the army service for over 19 years, was contested by the respondents, who stated that the petitioner was enrolled in the Army on November 24, 1940 and discharged from service with effect from October 26, 1946, that he was subsequently re enrolled in ASC (MT) with Army on March 8, 1948 and discharged from there on May 20, 1952, and that he has re enrolled with the Kumaon Regiment on March 2, 1955 for Lok Sahayak Sena and discharged from there on September 2, 1957.
It was further stated that the service rendered by him in LSS was not countable towards pension and that his service in the first two spells was 10 years and 54 days only.
The petitioner could not produce relevant documents in support of his statement.
770 Dismissing the writ petition, ^ HELD: The petitioner has not rendered 15 years of army service to be able to get the benefit of army pension as required under the army rules.
[772F] The statements of the petitioner regarding the periods of service rendered by him in the first and the second spell are inconsistent with his record of service produced by the respondents at the hearing.
[772D E] His service in the National Volunteer Force (LSS) cannot be treated as army service countable towards pension.
[772D]


judgement:
Civil Appeal No. 266 of 1974.
C From the Judgment and order dated 7.2.1973 of the Kerala High Court in S.A. No. 763 of 1970.
section Padmanabhan and N. Sudhakaran for the Appellant.
G. Vishwanatha Iyer and Miss Lily Thomas for the Respondent N and 5.
D.M. Nargolkar for the Respondent No. 1.
The Judgment of the Court was delivered by JAGANNATHA SHETTY, J.
This appeal by special leave has been preferred against the judgment and decree dated February 7, 1983 passed by the High Court of Kerala in Second Appeal No. 763 of 1970.
Under the family partition deed exhibit 1 executed on August 2, 1950, the properties under 'A ' schedule were allotted to Maharaja Pillai and after his death his widow was given the right to take the income therefrom.
One of the sons of Maharaja Pillai filed a suit claiming his right to take 1/3rd share in those properties.
The trial court while construing the terms of exhibit 1 held that the widow got absolute right over 'A ' schedule under section 14(1) of the .
The appellate court, however, took a different view.
The appellate court held that the widow could get only a restricted right under Section 14(2) of the .
Upon further appeal, the High Court agreed with the view taken by the appellate court.
The 782 High Court, however, granted a small share to the widow stating that according to law in force in the erstwhile Travancore State, the widow would have inherited the share which would have fallen to any of the sons.
The question for our consideration is whether the widow got absolute right or only a restricted right over the 'A ' schedule after the coming into force of the .
The answer to the question turns upon the scope and meaning to be given to the terms of exhibit 1, the relevant portion of which is extracted hereunder: ". 3.
As it was decided by us to partition our family properties providing to maintain Kothamachiyar Ammal, who is the wife of executant No. 1 and mother of others and the aforesaid Lakshmi Ammal, this partition deed is written with the stipulation mentioned below and it is fully agreed by us to abide by the provisions contained herein.
xxx xxx xxx xxx xxx 9.
During the life time of the 1st executant as and when the marriage of the said Lakshmi Ammal is decided to be conducted the first executant himself shall meet the expense in connection with that and conduct her marriage and if her marriage happened to be conducted after the death of 1st executant, executants Nos. 2 and 3 shall have right to encumber the 'A ' schedule property for an amount up to Rs.2, to meet the expenses for marriage ceremonies and for dowry and gold ornaments and the A schedule proper ties shall be liable for so much amount.
Kothamachi kyar Ammal, the wife of first executant and mother of other executants may reside in the building included in the A Schedule during her life time and take the income of the properties included in the A schedule after the death of the 1st executant; after the death of the 1st executant the successor in interest of the 1st executant shall have no right to create any document, except in the manner stated in paragraphs 9 above encumbering A schedule properties so as not to affect the right of enjoyment of the said person but this provision will not be binding on the 1st executant as regards his absolute right over the A schedule properties.
783 The first executant referred to above was Maharaja Pillai.
The widow we are concerned was his wife.
On August 31, 1955 Maharaja Pillai died.
There after 'A ' schedule items in the partition deed were being enjoyed by the widow.
While she was in possession of those properties the of 1956 came into force.
Subsequently, the widow had gifted those properties in favour of her daughter.
The case of the plaintiff was that after the death of Maharaja Pillai, the said properties would devolve upon his heirs and he would be entitled to 1/3rd share.
It has been urged by Mr. Vishwanath Iyer, learned counsel for the respondents that the properties in A schedule would remain in possession of the widow with the right to utilise the income therefrom for her maintenance but the properties were not given to her in lieu of maintenance.
It was also urged that Maharaja Pillai had absolute power of disposal over the properties during his life time, and it would be therefore not proper to hold that the widow got the properties in lieu of her maintenance.
We are unable to agree with these contentions.
It is not necessary for us to examine what would have happened to the rights of the wife if Maharaja Pillai had disposed of the 'A ' schedule.
The fact remains that he did not.
During the life time of Maharaja Pillai, the wife was residing in the house allotted to her husband.
She was being maintained by her husband.
After the death of husband, she was in exclusive possession of the 'A ' schedule.
She was taking the income from those properties.
She had a right to utilise that income for her maintenance.
That right was conferred on her under exhibit D1.
The children also were, allotted separate properties under exhibit D1.
They had taken their respective shares from the family properties.
In our opinion the properties possessed by the widow fairly and squarely fall under Section 14(1) of the .
Section 14 provides: " 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(l 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 any other manner what so 784 ever, and also any such property held by her as stridhan A 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 degree 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 state in such property.
" The property possessed by a female referred to under Section 14(1) includes property both movable and immovable, property.
It may be acquired by a female Hindu by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance etc.
The deed or any other arrangement by which the husband gives the property to his wife for maintenance need not specifically state that it is given in lieu of maintenance.
It is not an act of charity the husband does.
It is out of his personal obligation to maintain her.
The right to maintenance of a Hindu woman is a personal obligation of the husband.
If, therefore, the wife is put in exclusive possession of the property with the right to take the income for her maintenance, it must be presumed that the property is given to her in lieu of maintenance.
The very right to receive maintenance which is inherent in her, is itself sufficient to enable the ripening of possession of any property into full ownership under Section 14(1) of the .
It was, however, urged for the respondents that Section 14(1) does not take within its fold every property that comes into possession.
Of the widow.
It must be a limited estate in the sense of ownership without the right of disposal.
It should be a specific property given to her in lieu of her right to maintenance.
Similar contentions have been considered and rejected in a recent decision of this Court in Gulwant Kaur & Anr.
vs Mohinder Singh & Ors., Civil Appeal No. 112 of 1980 date 20.7.87 (to which one of us was a party, K. Jagannatha Shetty, J. ) .
There it was observed: "It is obvious that Section 14 is aimed at removing restriction no limitation on the right of a female Hindu to enjoy, as a full owner property possessed by her so long as her possession is traceable to a lawful origin, that is to say, if she has a vestige of a title.
It makes no difference whether the property is acquired by inheritance or device or at a 785 partition or in lieu of maintenance or arrears of maintenance or by gift or by her own skill or exertion or by pruchase or by prescription or in any other manner whatsoever.
The explanation expressly refers to property acquired in lieu of maintenance and we do not see what further title the widow is required to establish before she can claim full ownership under Section 14(1) in respect of property given to her and possessed by her in lieu of maintenance.
The very right to receive maintenance is sufficient title to enable the ripening of possession into full ownership if she is in possession of the property in lieu of maintenance.
Subsection (2) of Section 14 is in the nature of an exception to Section 14(1) and provides for a situation where property is acquired by a female Hindu under a written instrument or a decree of court and not where such acquisition is traceable to any antecedents right.
" It was urged that the view taken in above case was contrary to the decision in Bai Vajia vs Thakorbhai Chelabhai & Ors., ; We do not agree with this contention also.
Indeed a similar contention was urged in Gulwant Kaur 's case and it was rejected by observing: "We do not understand that court as laying down that what was enlarged by sub section 1 of Section 14 into a full estate was the Hindu women 's estate known to Hindu law.
When the Court uses the word limited estate, the words are used to connote a right in the property to which the possession of the female Hindu may be legitimately traced, but which is not a full right of ownership.
If a female Hindu is put in possession of property pursuant to or in recognition of a right to maintenance, it cannot be denied that she has acquired a limited right or interest in the property and once that position is accepted it follows that the right gets enlarged to full ownership under Sec.
14(1) of the Act.
That seems to us to follow clearly from the language of Sec.
14(1) of the Act.
" Bai Vijia 's case, has not laid down any different principle.
It has expressly accepted the view taken in V. Tulsamma vs Sesha Reddi, ; at 310 this Court summarised the scope of Section 14 as follows: 786 "(1) The Hindu female 's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurist starting from Yajnavalkya to Manu.
Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property the female has the legal right to be maintained therefrom.
If a charge is created for the maintenance of a female the said right becomes a legally enforceable one.
At any rate, even without a charge the claim for maintenance is doubtless a pre existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre existing rights.
(2) Section 14(1) and the Explanation thereto have been couched in the widest possible term and must be liberally construed in favour of the female so as to advance the object of 1956 Act and promote the socio economic ends sought to be achieved by this long need legislation.
(3) Sub section (2) of section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of section 14(1) materially.
The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by section 14(1) or in a way so as to become totally inconsistent with the main provision.
XXX XXX XXX XXX XXX In the instant case the property under A Schedule was allotted against the share of Maharaja Pillai.
The same property was given to the possession of the widow with a right to take the income for her maintenance.
This is sufficient to call into aid Section 14(1) of the .
In the result, we allow the appeal, set aside the judgment OF the High Court and also the lower appellate court and restore that of the trial court.
S.L Appeal allowed.

summary:
% Under a family partition deed (exhibit 1), the properties under 'A ' schedule were allotted to Maharaja Pillai, and after his death, his widow was given the right to take the income from the properties.
One of the sons of Maharaja Pillai filed a suit claiming his right to 1/3rd share in the properties above said.
The trial court held that the widow got absolute right over the properties in dispute under section 14(1) of the .
On appeal, the appellate court held that the widow got only a restricted right under section 14(2) of the Act.
On further appeal, the High Court mainly upheld the view of the first appellate court.
Against the judgment of the High Court, appeal was filed to this Court by special leave.
Allowing the appeal and restoring the judgment of the trial court, the Court, ^ HELD: The question to be decided is whether the widow got an absolute right or a restricted right over the properties in the 'A ' schedule after the coming into force of the .
During the life time of Maharaja Pillai, his wife (The widow in the case) was maintained by him.
After his death, the widow was in exclusive possession of the 'A ' schedule properties and was taking the income from those properties.
She had a right to utilise that income for her maintenance.
That right was conferred on her under exhibit D. 1.
The properties possessed by the widow fairly and squarely fall under Section 14(1) of the Act.
The property mentioned in section 14(1) may be acquired by a female by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance, etc.
The right to maintenance of a Hindu female is a personal obligation of the husband.
If the wife is put in exclusive possession of property with the right to take 781 income for her maintenance, it must be presumed that the property is given to her in lieu of maintenance.
The property under 'A ' schedule was allotted against the share of Maharaja Pillai.
That property was given to the possession of the widow with a right to take income for her maintenance, and this is sufficient to get the protection of section 14(1) of the Act.
[782B; 783D E; 784C D; 786G] Gulwant Kaur & Anr.
vs Mohinder Singh & Ors., Civil Appeal No. 112 of 1980, date 20.7.87; Bai Vajia vs Thakorbhai Chelabhai & Ors., [19793 3 SCR 291; V. Tulsamma vs Sesha Reddi, ; at 310.
referred to.