Judgment

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.

2. Under the family partition deed Ex. D-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 one-third share in those properties. The trial court while construing the terms of Ex. D-l held that the widow got absolute right over A schedule under Section 14(1) of the Hindu Succession Act. 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 Hindu Succession Act. Upon further appeal, the High Court agreed with the view taken by the appellate court. The 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.

3. 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 Hindu Succession Act. The answer to the question turns upon the scope and meaning to be given to the terms of Ex. D-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 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.

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9. During the lifetime of executant 1 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 executant 1, executants 2 and 3 shall have right to encumber the A schedule property for an amount up to Rs 2000 to meet the expenses for marriage ceremonies and for dowry and gold ornaments and the A schedule properties shall be liable for so much amount.

10. Kothamachiyar Ammal, the wife of first executant and mother of other executants may reside in the building included in the A schedule during her lifetime and take the income of the properties included in the A schedule after the death of executant 1 ; after the death of executant 1 the successor-in-interest of executant 1 shall have no right to create any document, except in the manner stated in paragraph 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 executant 1 as regards his absolute right over the A schedule properties.

4. The first executant referred to above was Maharaja Pillai. The widow we are concerned was his wife. On August 31, 1955 Maharaja Pillai died. Thereafter A schedule items in the partition deed were being enjoyed by the widow. While she was in possession of those properties the Hindu Succession Act 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 one-third share. It has been urged by Mr Vishwa-natha 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 lifetime, and it would be therefore not