S.N.P. Singh, J.

(1) This appeal under Clause 10 of the Letters Patent is directed against the judgment of the learned single Judge passed in First Appeal No. 62 of 1960. The first appeal arose out of a reference under Section 18 of the Land Acquisition Act.

(2) One Ganga Sah had married twice. By his first wife he had two sons, namely, Ram Shankar Sah, the respondent, and one Ramjas Sah, who died issueless. Appellant Lachhia Sahuain was the second wife of Ganga Sah and she has a son named Bhagwan Das. During his lifetime Ganga Sah executed a registered deed (Exhibit 1) dated the 18th of August, 1939, which has been described as a Bantan Nama. By the said deed Ganga Sah distributed his properties amongst his sons and his second wife appellant Lachhia Sahuain. It appears that 0.80 acres of land in village Jhajhapara, which had been allotted to Lachhia Sahuain by Exhibit 1, was acquired by the Government for the construction of Dumka Suri Division Road. Ram Shankar Sah filed an objection to the effect that the compensation awarded for the acquisition of 0.80 acres of land should not be paid to Lachhia Sahuain as she was a limited owner. Accordingly a reference was made under Section 18 of the Land Acquisition Act. The learned District Judge, Santal Parganas, Dumka, upon a construction of the relevant paragraphs of the document (Exhibit 1) held that the document in question was a deed of partition and it did not prescribe a restricted estate in the property which was allotted to appellant Lachhia Sahuain. Accordingly he took the view that under Sub-section (1) of Section 14 of the Hindu Succession Act, Lachhia Sahuain became an absolute owner and she was entitled to receive the compensation. Being aggrieved by the decision of the learned District Judge, Ram Shankar Sah filed the first appeal. The learned Single Judge reversed the decision of the District Judge and took the view that the partition deed had prescribed a restricted estate in favour of Lachhia Sahuain and as such Sub-section (2) of Section 14 of the Hindu Succession Act applied. In the result, the appeal was allowed, the judgment of the District Judge was set aside and the case was remanded to the District Judge of Santal Parganas for proceeding in accordance with the provisions of Section 32 of the Land Acquisition Act. Lachhia Sahuain has preferred this appeal under Clause 10 of the Letters Patent against the decision of the learned single Judge.

(3) Learned counsel appearing for the appellant contended before us that the learned single Judge has not correctly interpreted Exhibit 1. It was submitted that Exhibit 1 is a deed of partition and there is no clause. In the said deed of partition which has prescribed a restricted estate in the property allotted to appellant Lachhia Sahuain. Learned counsel appearing on behalf of the respondent, on the other hand, contended that the deed in question is not a deed of partition but a deed of family arrangement and it has prescribed a restricted estate in the property which was allotted to Lachhia Sahuain. It appears that before the learned Single Judge reliance was placed on paragraphs 6 and 7 of the deed in question for showing that it prescribed a restricted estate in the property allotted to Lachhia Sahuain. Paragraphs 6 and 7 of the deed which have been translated read as follows:

"6. From this day, I as well as my sons shall be competent to peacefully enjoy and possess the properties allotted to our respective shares on being entitled to make gift, sale and any other kind of transfer thereof. No objection raised thereto by anybody shall be valid. Should after this partition I or any of my three sons not protect the properties allotted to our respective shares and should any property appertaining to my or their respective share be lost thereby, then no one else shall be responsible for the said loss. After this partition, nobody shall be competent to raise any objection regarding the share of any other person and any objection, if raised, shall be unacceptable.

"7. Till this day I and my present wife and the son and daughters born of her have been living jointly and in jointness. But, should after this partition, my second wife Srimati Lachhia Sahuain desire to live separately from me, then she, having taken the properties allotted to her share, shall at ease be competent to live separately. No objection raised thereto by me or my sons shall be valid. God forbid, should at any time my wife be entangled in any litigation or should she be attacked with some serious disease, then she shall be competent to meet the expenses of litigation or of her treatment by selling, for a fair price, cither in part or in whole according to necessity the dwelling house in Dumka town which has been allotted to her under this deed of partition. Should after my death, my sons not perform my Sradh etc. according to Hindu religion and not offer pinda etc. at Gayatirtha for the salvation of my soul, then my wife Srimati Lachhia Sahuain shall be competent to perform the said rites etc. by selling any property allotted to her share."

Learned counsel appearing for the respondent placed before us the entire document and submitted that the tenor of the document shows that it was not a deed of partition but a deed of family arrangement. It is difficult to accept this submission of learned counsel appearing for the respondent. In my opinion, there is nothing in the document to give an indication that Ganga Sah had executed the document for preservation of the family property. In a Division Bench decision of this Court in Phul Kumari Devi v. Sambhu Prasad Singh, AIR 1965 Pat 87 [LQ/PatHC/1964/119] , of which my learned Brother was a party, it was held that normally a family arrangement is an arrangement entered into bv the members of a family for the settlement of family disputes. But an arrangement for preservation of the family property or for the maintenance of peace or security of the family is also regarded as a family arrangement. It was further held that for the validity of it family arrangement it is not essential that a family dispute must be in existence. It is enough if such a dispute is apprehended, and, therefore, the settlement of some doubtful claim between the various members of the family may provide a good consideration for a family arrangement. Apart from the fact that before the learned single judge the case was argued on the footing that Exhibit 1 was a deed of partition which prescribed a restricted estate in the property allotted to Lachhia Sahuain and not on the footing that Exhibit 1 was a deed of family arrangement, the materials on the record are not adequate for holding that Ganga Sah executed Exhibit 1 by way of family arrangement. In course of his argument learned counsel appearing for the respondent submitted that the very fact that the properties personally acquired by Ganga Sah were divided goes to show that Exhibit 1 is a deed of family arrangement and not a deed of partition. It is not possible to accept this contention. It is quite probable that the properties which were acquired by Ganga Sah were thrown in the hotchpot and after that the entire properties were distributed by Ganga Sah among his sons and his second wife. It is significant to note that in his application, which the respondent filed before the Collector for making a reference under Section 18 of the Land Acquisition Act, he stated as follows:

"That during his lifetime the said Ganga Sah had partitioned his properties by means of a registered partition deed in the year 1939 and allotted a share to his second wife Lachhia Sahuain but the terms of the said instrument of partition by which she acquired the said share gave her only a limited right of alienations in respect of the said share and prescribed a restricted estate in the said share of the property.

The present appeal, therefore, must be decided on the footing that Exhibit 1 is a deed of partition. The only material point, therefore, which falls for consideration is whether it has prescribed a restricted estate in the property which was allotted to Lachhia Sahuain. The learned single judge has taken the view that the rights which were given to the lady (appellant) were not at par with the rights of the male members inasmuch as she had been permitted to alienate the property allotted to her in special circumstances alone. I respectfully disagree with the view of the learned single Judge on the question of the interpretation of the document. In my opinion, paragraph 7 of the document does not restrict the rights of the appellant to alienate the property which had been allotted to her. As a measure of abundant caution, Ganga Sah provided in paragraph 7 of the deed that if his wife be entangled in any litigation or be attacked with some serious disease, she would be competent to meet the expenses of litigation or of her treatment by selling for a fair price, either in part or in whole, the dwelling house in Dumka town which had been allotted to her under the deed of partition. The other provision in paragraph 7 of the deed, namely,: if after his death his sons did not perform his Sradh etc. according to the Hindu religion, his wife would be competent to perform the same by selling any property allotted to her, appears to have been made with the same object. In absence of any positive restrictions on her rights to alienate the property allotted to her either in paragraph 7 or in any other part of the document, it is difficult to hold that Exhibit 1 prescribed a restricted estate in the property allotted to the appellant.

(4) In support of his contention that the instant case comes within the purview of Sub-section (1) of Section 14 of the Hindu Succession Act, learned counsel appearing for the appellant relied on the following cases, namely, Raghunath Sabu v. Bhimsen Naik, AIR 1965 Orissa 59; Rangaswami Naicker v. Cninnammal, AIR 1964 Mad 387 [LQ/MadHC/1963/208] ; Sasadhar Chandra v. Sm. Tara Sundari Dasi, AIR 1962 Cal 438 [LQ/CalHC/1962/33] and Smt. Sharbali Devi v. Pt. Hiralal, AIR 1964 Punj 114. Learned counsel appearing for the respondent, on the other hand, in support of his contention that the present case is to be governed by Sub-section (2) of Section 14 of the Hindu Succession Act, relied on a Division Bench decision of the Calcutta High Court in the case of Jaria Devi v. Shyam Sundar Agarwalla, AIR 1959 Cal 338 [LQ/CalHC/1957/159] .

(5) I propose to consider the case of Jaria Devi, AIR 1959 Cal 338 [LQ/CalHC/1957/159] first. In that case the facts were entirely different inasmuch as the widow co-sharer had been allotted properties under a deed, which was described as a deed of partition, not strictly according to her share. It was expressly stipulated in the deed that the widow would have no more than a life interest in the properties allotted to her. The Court construed the document as a deed of family arrangement and held that the case falls within the Exception of Section 14(2) and not within the general rule contained in Section 14(1) of the Hindu Succession Act. In the instant case it is the admitted position that Lachhia Sahuain, the appellant, had been allotted property according to her share. There is no stipulation in the deed that she would have only a life interest in the property allotted to her. As the facts of the case of Jaria Devi, AIR 1959 Cal 338 [LQ/CalHC/1957/159] were entirely different, the decision in that case does not in any way support the contention raised on behalf of the respondent.

(6) Now I propose to consider the four cases cited by learned counsel appearing for the appellant. In the Orissa case, AIR 1965 Orissa 59 there was a partition suit by the widow of a pre-deceased member of the joint family in which a compromise decree was passed whereby she was allotted some land out of which she was given absolute right in respect of some portion of the land and life interest in respect of the remaining portion. She gave up her interest in respect of the rest of the portion of the land to which she was legally entitled. Further, according to the terms of the compromise, she could not transfer her interest in the portion or the land. In respect of which she had been given life Interest. The question arose whether she became full owner of the property in which she was given life interest by the compromise decree by coming into force of the Hindu Succession Act. It was held that she had already acquired title by inheritance from her husband prior to the date of the compromise decree and ali that the compromise decree did was to declare the pre-existing title of her in the property. The compromise decree could not, therefore be said to be a decree within the meaning of Sub-section (2) of Section 14. It was, therefore, held that she acquired absolute title to the property allotted to her in lieu of her undivided share and she had absolute right to sell the same. While interpreting Section 14 of the Hindu Succession Act, Barman, J., observed as follows:

"On the interpretation of this section by different High Courts, on the peculiar facts of each case, the settled view, on the underlying, basic principles, is this: the right of a female Hindu to full ownership in property in her possession is given by Section 14(1) whether the female Hindu has acquired the property by inheritance or otherwise. The word acquired in Sub-section (1) has been given the widest possible meaning. The explanation to the sub-section makes it clear that Sub-section (1) would apply to any property which a female Hindu acquires whether by inheritance, gift, partition, purchase or otherwise. In the context of the Explanation given in the sub-section, the word acquired must be given the widest possible connotation. The Explanation is restricted to Sub-section (1) and recourse to this Explanation was not intended by the Legislature to be taken for construing Sub-section (2) of Section 14. The language in Sub-section (2) indicates that the word acquired will have a restricted meaning. A property is said to be acquired when prior to the acquisition the person acquiring it had no interest in the property. In Sub-section (2) the illustration of acquisition given is acquisition by way of gift or devise. It is to be noticed that while in the Explanation to Sub-section (1) specific reference is made to properties allotted to the female Hindu on partition or in lieu of maintenance so that she may acquire absolute title therein, there is no such specific reference in Sub-section (2). Partition of joint family property must be evidenced either by a deed of partition or by a decree of a Court in the partition suit as in the present case. The property allotted to a female Hindu on such partition must necessarily be a restricted estate as prescribed by Hindu Law. It follows that if the Legislature intended that the property allotted to a female Hindu on partition or in lieu of maintenance be treated on the same footing as gift or devise in Sub-section (2) then the whole of the Sub-section (1) would be destroyed in respect of properties which were partitioned prior to the Act either privately, by a deed or by Court in a partition suit. The words "any other instrument" in Sub-section (2) must be construed ejusdem generis, that is, any other instrument of the same nature whereby the acquisition is made in respect of property in which the person had no interest previously."

In the Calcutta Case, AIR 1962 Cal 438 [LQ/CalHC/1962/33] in a suit for partition certain properties were allotted to one Prosadmoni, daughter of one Gopal Chandran Nawan. The properties allotted to her under the decree were to be held as a Hindu daughter. In a suit instituted by the nest reversioners against Prosadmoni for waste of the estate in her hand a consent decree was passed whereby it was provided that moneys of the estate invested or otherwise lying in her hand were to be held by her as a Hindu daughter. Prosadmoni died leaving behind one Tara Sundari as her only heir. The reversioners of Gopal Chahdra Nawan instituted a suit alleging that Tara Sundari was not the heir of Gopal and the estate belonged to the reversioners of Gopal. It was held that Prosadmoni acquired absolute title under Sub-section (1) of Section 14 of the Hindu Succession Act by the partition decree. While considering the scope and applicability of Sub-section (1) and Sub-section (2) of Section 14 of the Hindu Succession Act, the learned Judge observed as follows:

"The right of a female Hindu to full ownership in property in her possession is given by Section 14(1) of the Hindu Succession Act whether the female Hindu has acquired the property by inheritance or otherwise. The word acquire in Sub-section (1) has been given the widest possible meaning. The explanation to the sub-section makes it clear that Sub-section (1) would apply to any property which a female Hindu acquires whether by inheritance, gift, partition, purchase or otherwise. In the context of the explanation given in the subsection, the word acquired must be given the widest possible connotation. It is to be noted, however, that the explanation is restricted to Sub-section (1) and recourse to this explanation was not intended by the Legislature to be taken for construing Sub-section (2) of Section 14, Sub-section (2) exempts the operation of Section 14(1). The language used in Sub-section (2) indicates that the word acquired will have a restricted meaning. It was not intended to have a meaning wider than its ordinary meaning. A property is said to be acquired when prior to the acquisition the person acquiring it had no interest in the property. The donee of a gift or the devisee under a will acquires the property because prior to the gift or devise he had no title or right to the property which he gets as gift or devise. In Sub-section (2) the illustration of acquisition given is acquisition by way of gift or devise. It is important to note that while in the explanation to Sub-section (1) specific reference is made to properties allotted to the female Hindu on partition or in lieu of maintenance so that she may acquire absolute title therein, there is no such specific reference in Sub-section (2)."

In the Punjab case, AIR 1964 Punj 114 the facts were these. One Din Dayal had two wives, namely, Srimali Mathri and Srimati Basanti. From Srimati Mathri he had a son. Bhikan Lal, who died leaving a widow, Srimali Sharbati Devi. Srimati Basanti, the other wife of Din Dayal, had a son Hiralal. On the death of Din Dayal in the year 1938, his properties were mutated half and half in favour of Srimati Sharbati Devi and Hiralal, who was minor at that time. Srimati Sharbati remained in possession of the properties which had been mutated in her favour. In 1950 a suit was filed by Hiralal against Srimati Sharbati Devi in which a compromise took place on which a consent decree was passed declaring that Hiralal was the sole heir and owner of the property left by Din Dayal, but Shrimati Sharbati Devi was given possession of the suit land and certain other lands for life, her rights being restricted with regard to alienation etc. Sometime in 1956 she sold some land. Hiralal then instituted a suit for possession of the land sold and in the alternative for a declaration that the sale by Srimati Sharbati Devi was void and ineffective as against his rights. It was held that her possession by virtue of mutation was lawful and by the consent decree she did not get any larger interest or was not put in possession of more properties or share in the properties than what was in her possession already by virtue of mutation. Therefore, it was not by virtue of the decree that she came to be in possession of the suit property. Accordingly, it was held that Sub-section (2) of Section 14 had no application and she was the full owner of the suit property at the time when she sold it.

(7) In the Madras case, AIR 1964 Mad 387 [LQ/MadHC/1963/208] the facts were these. A Hindu widow claiming a half share in the property under the Hindu Womens Rights to Property Act filed a suit for an injunction to restrain her grandson from interfering with her possession over the property in dispute. That suit ended in a compromise. But according to the agreement the widow was to be declared entitled to a half share of the properties but the possession of that share was to be with grandson so long as he paid rents. One of the clauses of the agreement staled that the grandson would be entitled to the suit properties after the lifetime of the widow. Subsequently, however, the widow made a testamentary disposition of the property to he" daughters. As the rights of the daughters were disputed by the grandson, they filed a suit for partition. It was contended by the grandson that the compromise was the only source of widows estate and she obtained only a limited estate. It was held that the compromise was intended only to recognise and declare her pre-existing right in the suit property. She became the full owner of the property in spite of the fact that her powers of disposal were limited.

(8) The cases cited by learned counsel appearing for the appellant undoubtedly support his contention that the present case comes within the purview of Sub-section (1) of Section 14 of the Hindu Succession Act. It is manifest that Exhibit 1 is nothing but an evidence of partition and the interest which Lachhia Sahuain acquired in the property allotted to her was as a result of a partition of the joint family properties evidenced by the deed (Exhibit 1). To my mind it is clear that the instant case comes within the purview of Sub-section (1) of Section 14 of the Hindu Succession Act and not within the Exception contained in Sub-section (2) of Section 14 of the Act. I am, therefore, of the opinion that the view taken by the learned single Judge is not correct. The appellant being full owner of the property, which has been acquired under the Land Acquisition Act, is entitled to the payment of compensation.

(9) For the reasons stated above, I allow this appeal set aside the judgment of the learned single judge and confirm the order of the learned District Judge. In the circumstances, however, there will be no order for costs. Misra, J.

(10) I agree with my learned brother that this appeal should be allowed. I may, however, add that Exhibit 1, the deed of partition, is a document under which the appellant Lachhia Sahuain as the wife of Ganga Sah was entitled to a share as a Hindu wife. The cases on this point have been summarised in Mullas Hindu Law, 12th Edition, Article 315, at page 485. In this case, the partition took place in 1939 when Lachhia Sahuain was entitled to a share. That is not denied on behalf of the respondent. The only point, therefore, on which distinction has been sought to be made is whether Exhibit 1, the deed of partition, can be regarded as a deed of family settlement and, as such, whatever property was allotted to the appellant would be held by her as a restricted estate covered by Section 14(2) of the Hindu Succession Act, and not by Section 14(1). Learned Counsel relied upon the decision of the Calcutta High Court in the case of AIR 1959 Cal 338 [LQ/CalHC/1957/159] to which my learned brother has referred. That was a decision in which it was held by Division Bench of the Calcutta High Court that where property is acquired by a Hindu woman under a deed of family settlement and restriction in regard to her power to alienate is imposed upon her the case is governed strictly by the provisions of Section 14(2) and not 14(1); and if that be so, Lachhia Sahuain, the appellant, cannot claim the property in dispute as her absolute property. That was a case in which the document in question was construed as a deed of family settlement, because the property allotted to a Hindu female was not in proportion to her share in accordance with Hindu law but at variance with ii. Further, there was a restriction imposed on her right to alienate the property. My learned brother has distinguished the present case on the ground that the present instrument is one of partition and there is no positive restriction on the rights of the appellant to alienate the property allotted to her and, as such, the decision in Jaria Devis case, AIR 1959 Cal 338 [LQ/CalHC/1957/159] will not govern this case. It seems to me that there was evidence in the above Calcutta case that the share allotted to the Hindu female concerned in that case was not the share to which she would be entitled in quantum, although she would be entitled to a share. In the present case, I may state, there is nothing on the record one way or the other to show that the share allotted to the appellant was not the share to which she would be entitled. The case has not been approached from that point of view and, as such, the instrument of partition (Exhibit 1) must be regarded as a partition between the father and the sons in which the wife was entitled to a share, and what she got was the share to which she would have been entitled as a Hindu wife.

(11) Apart from that consideration, I am inclined to differ from the observation of the learned Judge of the Calcutta High Court, leaving aside the other circumstances of that case which are not clear from the judgment which is rather a short judgment the mere fact that some restriction is imposed on the powers of the Hindu female would not affect the character of the document or the right of a Hindu female or her successor-in-interest to claim that she obtained an absolute share in the property. If a Hindu female as such in Hindu law has a right to a share in any property, the mere fact that in the instrument of partition certain restrictions were imposed, where the instrument came into existence prior to the commencement of the Act in 1956, or is imposed in the instrument which comes into existence after the commencement of this Act will not affect the character of her right and the restrictions must be ignored and the absoluteness must attach to the property allotted to her. If the observation of the Calcutta High Court is to be construed in the light that where under an instrument the imposition of any restriction with regard to the right to alienate the property would by itself deprive the female of the benefit of the provision under Section 14(1) of the Hindu Succession Act, I must say that, with great respect, I do not agree. The other decisions of the Calcutta High Court and the decision of the High Court of Orissa (AIR 1962 Cal 438 [LQ/CalHC/1962/33] and AIR 1965 Orissa 59) also do not support the proposition which may appear to follow from the judgment of the Calcutta High Court in Jaria Devis case, AIR 1950 Cal 338. Apart from these two decisions, I may also refer to the case of Gadam Reddayya v. V. Venkataraju, AIR 1965 Andh Pra 66 which is a clear answer to the proposition. The following observation was made in that judgment:

"We are not persuaded that the clause in question could have the effect that is attributed to it. We feel that Sub-section (2) comes into effect only in cases where a new right is created with certain restrictions and conditions and can have no application to cases of recognition of existing rights. Indisputably, the adoptive mother has a right to be maintained by the adopted son out of the estate. It is pursuant to that right that her claim to maintenance was settled under Ex. A-8. It is also worthy of note that Ext. A8 has settled the disputes between the parties. It should be borne in mind that prior to coming into being of Ex. A-8, Chellamma denied the factum of adoption and claimed the whole of the property for herself, while the present plaintiff asserted his right as adopted son. It is this dispute that was settled by the mediators and as we have already said under Clause 5 of Ex. A-8 while the widow got 5 acres, inclusive of one acre of dry land for life, the adopted son got the rest of the estate. A perusal of the document shows that it was Clause (7) that made the estate conferred on her limited to her life. So, this document evidences a family settlement, in that, the differences between the parties were resolved and the pre-existing rights of each other, recognised. As such, it is not a new right that was conferred upon the widow under this document. The restriction referred to above merely set out the legal effect on her estate as maintenance holder. This was another way of stating that the widow could have a life estate in the property and that she is to enjoy these properties in lieu of her maintenance. It is not disputed that a maintenance holder cannot alienate properties beyond her lifetime. Her rights cannot be equated to a widows estate. In these circumstances, the instant case falls outside the scope of Sub-section (2) and is governed by Sub-section (1) of Section 14."

It is clear from this judgment that merely because a family settlement has been arrived at evidenced by an instrument of partition, it will not preclude the application of Section 14(1). Likewise, merely because a restriction on the right of alienation has been imposed, even then, it will not preclude the application of Section 14(1). The crux of the matter is whether what the lady has acquired is something to which she had no pre-existing right or she had a right to it. Of course, there may be several other considerations in determining the real character of the instrument, but the two facts referred to above, i.e., merely because it is a family settlement or merely because there may be certain restrictions, will not take the document out of the scope of Section 14(1) and place it within the ambit of Section 14(2) of the Hindu Succession Act. In my opinion, the decision of the Division Bench of the Andhra Pradesh on this point lays down the correct law and the Calcutta decision referred to above, in terms does not appear to be sound.