A VERY CHALLENGING QUESTION ON THE APPLICABILITY OF SEC. 14 (2) of the Hindu succession Act.
Facts of the case;
A HAS PROPERTIES. HIS WIFE W HAS ALSO PROPERTIES. SHE HAS GOT IT FROM HIS MATRIARCHAL TARAWAD FAIMLY LIKE IN MALABAR
A DIES. W , D1 AND D2 THEIR TWO DAUGHTERS AND S1 HIS SON DIVIDE THE PROPERTIES BY A REGD PARTITON, BRINGING IN ALL THOSE PROPERTIES.
A SCH WITH SIX ITEMS OF INCOME GIVING LANDED PROPERTIES IS GIVEN TO W, THE WIDOW/MOTHER. BUT IT IS CLEARLY MENTIONED THAT THOIUGH ITEMS 6 AND 7 ARE INTENDED FOR THE SHARE OF THE TWO DAUGHTERS IT IS ALLOWED TO BE USED BY THE MOTHER FOR MAINTENANCE DURING HER LIFE TIME. BUT THE MOTHER SHALL HAVE NO POWER OF ALIEANATION AND IT IS A RESTRICTED ESTATE, AND ITEM 6 SHALL DEVOLVE ON D1 HER DAUGHTER AND ITEM NO. 7 ON D2 HE R OTHER DAUGHTER.
THE QUESTION IS THAT IN VIEW OF THE PROVISION FOR A RESTICTED ESTATE, WHETHER, SEC. 14(1)ENALRGEMENT INTO ABSOLUTE ESTATE WILL APPLY AND WOULD IT NOT COME UNDER sEC. 14(2)
THE POINT BECOMES INTERESTING IN THAT THE MOTHER IS GIVEN SEPARATE FIVE ITEMS OF PROPERTIES TO BE ABSOLUTELY ENJOYED AND THEN IT CANNOT BE SAID THAT THE GENOURISITY OF THE DAUGHTERS TO FURTHER MORE ALLOW MOTHER TO USE THE PROPERTY AND TAKE INCOME DURING HER LIFE TIME WOULD NOT BE IN LIEU OF A PREEXISTING RIGHT OF MAINTENANCE, PARTICULARLY WHEN SHE IS A LEGAL HEIR, ALLOTTED PROPERTIES TO HER SELF AND HER RIGHT TO PROPERTY IS ALREADY CONCEDED AND SUCH A PERSON CANNOT HAVE A PREEXISTING RIGHT.
THE CATCH ALL INTREPRETATION IN JUDICIAL OVER ACTIVISM, IN THULASAMMAL CASE CAN IT NOT BE DISTINQUISHED, SINCE THE OBJECT IS TO ENLARGE ESTATE OF A WOMAN AND IN THIS CASE, IT IS THE NEXT GENERATION WOMEN WHO IS AFFECTED. AND MORE OVER, IN INDIAN CONDITIONS, THE MOTHER IS UNDER THE CLUTCHES OF THE SON AND THE SON WILL KNOCK IT OFF AS HE WOULD PURSUADE EVEN AN UNWILLING MOTHER TO MAKE A WILL IN HIS FAVOUR.
PLEASE COMMENT. IT IS A QUESTION OF SAVING TWO WOMEN IN THE NEXT GENERATION
A
