Patna High Court
Hemant Kumar Pande And Anr. vs Somenath Pandey And Ors. on 14 April, 1959
Equivalent citations: AIR1959PAT557, AIR 1959 PATNA 557
JUDGMENT Shib Chandra Prasad, J.
1. The plaintiffs have appealed against the judgment of the Additional Subordinate Judge, Dhanbad, confirming the decision of the Additional Munsif of the same place in a suit filed by them for declaration of title to and recovery of possession of the lands mentioned in schedule A of the plaint and for declaration of title and confirmation of possession in respect of the lands mentioned in Schedule B of the plaint. There was also a prayer for injunction against the defendants.
2. The lands originally belonged to one Chha-tradhari Pandey. He left two sons Indranarain Pandey and Lalmohan Pandey. Lalmohan died in 1944 leaving behind his widow, Sabitri. It has been alleged by the plaintiffs that there had been a partition between Indranarain and Lalmohaa, whereby the lands in dispute were allotted to Lalmohan so that after his death his widow Sabitri came in possession of these lands and in 1950 executed a kebala in favour of plaintiff no. 1 in respect of these lands for legal necessity. The other plantiffs are members of the family of plaintiff No. 1. It was alleged by the defendants that they had taken settlement of a portion of plot No. 28, one of the plots in dispute from Indranarain and Lalmohan by a Sada Hukumnama dated 23-1-1944 on payment of salami and since the date of settlement they had been in possession of the same.
Subsequently, after the death of Sabitri, widow of Lalmohan, Indranarain sold some share in the village to the defendants covering the lands in dispute, and this amounted to the transfer of the disputed lands to the defendants. Thereafter dispute arose between the parties resulting in a criminal proceeding under Section 145 of the Code-of Criminal Procedure in respect of section A lands which was ultimately decided against the plaintiffs appellants who alleged that they had been dispossessed by the defendants on the strength of that decision.
3. I have set out the facts material for the disposal of this appeal. The findings of the Courts below are as follows. (It may be mentioned that both the courts below have come to concurrent findings). They have held that there had been no partition between Indranarain and Lalmohan, that Sabitri had a limited estate in the property, that she had no right to alienate the lands in dispute to the plaintiffs and that the kebala executed by her transferring these lands to the plaintiffs, was not for legal necessity. The Hukumnama set up by the defendants was held to be a collusive document.
4. The points raised before me are as follows. Firstly, it is said that the finding that there had been no partition between Indranarain and Lal-mohan was vitiated by error of law, because the learned Subordinate Judge had rejected the evidence of some of the witnesses on the ground that it was hearsay, although that was not correct; secondly, that under the provisions of the Hindu Women's Right to Property Act, 1937, Sabitri had a widow's estate in the interest of her husband which had devolved on her after his death, and as a consequence of one of the incidents of the widow's estate, she was entitled to alienate the property inherited by her and as such she had a right to sell the lands in dispute even though there had been no partition between the two brothers Indranarain and Lalmohan, in favour of the plaintiffs by the kebala in question; thirdly, that the courts below had not considered the aspect of the matter that the kebala in dispute itself contained recitals which constituted an expression of her will to separate from Indranarain, and which therefore resettled with severance of status, and, consequently even if there had been no partition by metes and bounds, she became entitled to sell the property to the plaintiffs, notwithstanding that she as a widow may have had no such right to make any alienation even for legal necessity, prior to there having been no severance in the status of the members of the joint family of Indranarain and Lalmohan; fourthly, that the findings of the Courts below on the point of want of legal necessity are vitiated in law, the Courts below having not considered the evidence properly. It is said mat merely because P.Ws. 1, 2 and 4 were interested persons, that was no reason to discard their evidence without considering whether that evidence had any merit considered from other points of view; and, finally, that the defendants are strangers, and they, as such, are not entitled te challenge the validity of the kebala by Musammat Sabitri.
5. In my opinion, there is no substance in any of these arguments of the learned counsel for the appellants. There is no justification for the argument that the findings of the Courts below either on the point of partition or on the point of legal necessity are in any way vitiated so as to justify this Court to interfere with them in Second Appeal. Both the judgments of the Courts below have been read over to me, and I find after perusal of the judgments myself, that the Courts below have considered all the relevant evidence on these points and have then come to the conclusion that neither there had been partition between Indranarain and Lalmohan nor was there any legal necessity justifying the transfer of the disputed lands by Sabitri to the plaintiffs. The fact is not that the Courts below or any of them had discarded the evidence of P.Ws. 1, 2 and 4, merely because they were interested persons. The learned Subordinate Judge has considered the other matters affecting the evidence of these witnesses and has then not relied upon their evidence. That, I think, he was entitled to do. I do not think that he discarded their evidence on the ground that it was inadmissible being hearsay. What actually the learned Subordinate Judge has said in connection with this matter is that the knowledge of P. W. 3 about partition and separate possession of Lalmohan and Sabitri was admittedly hearsay, and therefore his evidence on this point could not fee relied upon. This does not mean that he rejected the evidence as being inadmissible on the ground of its being hearsay.
What he means to say is that on account of this infirmity, the evidence of this witness did not carry much weight and was therefore, unreliable. He thereafter gave other reasons also for not acting upon the evidence of this witness. He has also pointed out other facts in respect of the other witnesses, namely, P. Ws. 2 and 4, which went against the weight of their evidence. On the point of legal necessity, the learned Subordinate Judge has referred to several facts which clearly indicated that the necessities mentioned in the kebala were not correct. He has considered the oral evidence in respect of the matter and has said that it was altogether worthless.
In conclusion, I think there is absolutely no substance in the contention of the learned counsel for the appellants that the findings of the learned Subordinate Judge are vitiated. The position, therefore, comes to this that the sale deed in question had been executed by Sabitri in respect of the lands which belonged to the joint family consisting of herself, her husband Lalmohan and Indranarain, his brother, Lalmohan having died joint, without any legal necessity justifying the same.
That being the position, even if it were held that as an effect of the Hindu Women's Right to Property Act, 1937, Sabitri had right to alienate the interest of her husband which had devolved upon her on his death even though he had died joint with his brother, it could have no effect be-cause she holding a widow's estate could have alienated his property only if there was justifying legal necessity for it, but having regard to the finding to the contrary, her kebala must be held to be invalid conveying no valid title to the plaintiffs beyond her death, specially when it is admitted in this case that Sabitri is dead, having died probably in 1950 or 1951.
6. The next contention put forward is that the defendants, befog strangers and mere trespassers, could not challenge the alienation, even if it were found that there was no legal necessity. There is no substance in this contention, either. it appears from the judgment of the learned Mun-sif that Indranarain by Ext. C, the sale deed dated 5-7-1951, sold to the defendants not only his interest but also the interest of his brother Lalmohan, The execution of this deed was not challenged, and what was really urged, on behalf of the appellants before the learned Munsif, was that Indranarain had no right to execute this sale deed with respect to more than his share in the plots.
That of course is not correct, because Sabitri having only a widow's estate, according to the law of Hindu widow's estate, the estate must go to the next reversioners, that is the nearest heir of the last male holder, namely, in this case, Lalmohan. It is said that Lalmohan had left behind a daughter. Even so, Indranarain being the brother of Lalmohan would be a remote reversioner of the estate of his brother, and was so at the time when Sabitri had executed this kebala, there being no evidence that this daughter of Lalmohan had any issue.
That being the position, the right of the defendants, which accrued to them by this kebala-from Indranarain over the estate of Lalmohan, was-such, as in my opinion, in law, entitled the defendants to resist the claim of the plaintiffs to get the reliefs of declaration of title and recovery of possession in one case and declaration of title and confirmation of possession with respect to the-other property, having regard to the fact that after tha death of Sabitri from whom the plaintiffs had taken transfer of the disputed lands, they had no longer a good title to the lands in dispute in the face of the finding that Sabitri had alienated the property to the plaintiffs appellants, without any legal necessity.
Even if the defendants were mere trespassers, still they would, in my opinion, have been entitled to resist the claim for declaration of title and recovery or confirmation of possession in the circumstances mentioned above. But the defendants' position is much better than that of mere trespassers. Therefore, in my opinion, there is no substance in this contention of the learned counsel for the appellants also.
7. I now take up the question whether a widow, who gets the interest of her husband in a joint Hindu Mitakshara family under the Hindu Women's Right to Property Act, 1937, has or has not the right to alienate that interest for legal necessity even when there has been no severance in status of the family or partition of the joint family property. There have been strenuous and elaborate arguments on this point on both sides.
8. The learned counsel for the appellants cited one ruling of the Orissa High Court, Kunja Sahu v. Bhagaban Mohanty, AIR 1951 Orissa 35. That no doubt supports this contention. On behalf of the respondents, learned counsel has urged that the view taken by the Orissa High Court is not correct and is opposed, if not directly, at least indirectly, to the view of this High Court and the other High Courts.
Learned counsel referred to the case of Kamal Kishore Prasad Singh v. Hari Har Prasad Singh, AIR 1951 Pat 645, especially to the observations of B. P. Sinha J. fas he then was), at page 647 in paragraph 6 wherein the learned judge has observed thaf the effect of the Hindu Women's Right to Property Act. 1937, was that it amounted to interposing the interest of Hindu women's estate in a joint Hindu coparcenary, that is to say, so far as the coparceners themselves were concerned, the coparcenary continued as before, the death of one of the coparceners; there was no disruption of the joint family.
Hence, those members still continued to enjoy as amongst themselves the benefits of survivorship. But, so far as the widow of deceased co-parcener was concerned, she acquired in the interest of her deceased husband in the coparcenary property a Hindu woman's estate, which she could get separated from the rest of the family by a suit lor partition. Stress is laid by the learned counsel on the fact that these observations amount to the recognition of the position that the family continues joint and the only right which the widow gets is the right to get her estate separated by a suit for partition, but so long as this is not done, the widow possesses no right to alienate the property. Another case relied upon is the case of Parappa v. Nagamma, AIR 1954 Mad 576, which is a Full Bench ruling of the Madras High Court, and the observations made in paragraph 6 are especially referred to. Those observations are as follows:
"The Act therefore has conferred a new right on the widow of a deceased coparcener in modification of the preexisting law. Section 3 (2) of the Act does pot bring about a severance of interest of the deceased coparcener. Certainly the widow is not raised to the status of a coparcener though she continued to be a member of the joint Hindu family as she was before the Act. The joint family would continue as before subject only to her statutory right. The Hindu conception that a widow is the surviving half of the deceased husband was invoked and a fiction was introduced, namely, that she continued the legal persona of the husband till partition.
From the standpoint of the other male members of the joint family, the right to survivorship was suspended. The legal effect of the fiction was that the right of the other members of the joint family would be worked out on the basis that the husband died on the date when the widow passed away. She would have during her life-time all the powers which her husband had save that her interest was limited to a widow's interest. She could alienate her widow's interest in her husband's share; she could even convey her absolute interest in the same for necessity Or other binding purposes. She could ask for partition and separate possession of her husband's share.
In case she asked for partition her husband's interest should be worked out having regard to the circumstances obtaining in the family on the date of partition. If the divided herself from the other members of the family during her Iife time on her demise the succession would be traced to her husband on the basis the property was his separate property. If there was no severance, it would devolve by survivorship to other members of the joint Hindu family. This conception of the legal persona of the husband continuing to Jive in her steers clear of many of the anomalies and inconsistencies that otherwise would arise."
9. The learned counsel for the appellants however, says that these observations also support him because if has been observed that the widow could alienate her widow's interest in her husband's share; she could even convey her absolute interest in the same for necessity or other binding purposes. These observations, however, in mv opinion, cannot be stretched so far as the learned counsel would take them, because it must be remembered that it was a case from Madras where a coparcener had and has the right to alienate his interest in the joint family property unlike the coparceners under the Banaras School of Mitakshara Hindu Law prevailing in Bihar, Uttar Pradesh, Orissa, etc. It was, therefore, that when the interest of such a coparcener devolved on his widow and she got the widow's estate in that interest, in that State where the interest of the male coparcener was such as would entitle that coparcener to alienate it, even though the family remained joint, naturally his widow would also have the same right to convey that interest to others, like her husband, subject, sowever, to the limitations which a Hindu widow has under the law, being empowered to convey that interest absolutely only when there was legal necessity justifying that alienation.
If a different interpretation is pus upon the provisions of the Hindu Women's Right to Property Act as has been put by the Orissa High Court, I think it would result in great hardships, and would go much beyond what the legislature appears to me to have intended to do for the betterment of the position of the Hindu widows which they held immediately before this law was enacted, namely, that they had absolutely no right whatsoever in the property of the joint family of which her husband happened to be a member and had died as such, except the right of getting maintenance. It was to improve this hard position of ' the Hindu widows that this Act was made and the statute itself says that to give better rights to women in respect of property this law was being enacted.
It seems difficult then to conceive that the legislature, while bettering the then position of the Hindu widows, intended to give them higher right in the joint family property than the right of the coparcener according to which he could not alienate his interest in the property even for legal necessity and without the consent of the other coparceners. This favoured position was enjoyed only by the manager, that is, the karta of the family or the father. Since this Act of 1937 was to extend to the whole of British India it had naturally to take into consideration and provide for the different situations obtaining in different parts of the country.
Courts of law have, therefore, to construe this Act in that context. The first thing which has to be taken into consideration is the object of the Act and secondly the fact that the widow was being given the same interest which her husband had in the joint family property. The fact that Sub-section (2) giving this right to the widow was made subject to the provisions of Sub-section (3) does not mean that there was intended any enlargement of the right of the widow to such an extent as to go beyond the right which her husband actually had in the interest which was being given to her by this Act.
Therefore, Sub-section (3), when it says that any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate, it should not, in my opinion, be construed as meaning that 3 Hindu widow would in all circumstances get the right of alienating the interest devolving upon her by the statute like any other Hindu widow for legal necessity absolutely and for her life even for no legal necessity.
If this be the meaning of Sub-section (3) it may result, in certain circumstances, in introducing hostile strangers into the family which conflicts with the position accepted by this Act, which is that in spite of the widow having been given better right in the shape of entitling her to the same interest as her husband had in the joint family property, the family, however, still remains joint, and the karta would remain the karta having all the powers of the karta of a Hindu joint family.
What would then be the position if the karta sells the property for legal necessity and subsequently the widow also sells the same property for legal necessity and vice versa? If the construction put by the learned counsel for the appellants be correct, it would be difficult to reconcile the conflicting claims of these transferees.
10. The incidents of a Hindu widow's estate are several, for instance the estate taken by her is her estate. She is the owner thereof except that there is limitation on her power to dispose of the corpus of the property by mortgage, sale, gift lease, etc. She holds it as legal representative of her husband. She represents the estate completely. She may, therefore, institute suits in respect of the property. She may be sued in respect thereof, and decrees passed against her as representing the estate in respect of debts or other transactions binding on the estate, are binding not only on her but on the reversioners, even though the latter may not be party to the suit.
If she is dispossessed of any portion of the property by a third person, she can sue to recover it, but if she fails to do so and allows the possession of such person to become adverse to her, the reversioners' are not affected by such adverse possession, and they may, therefore, sue for possession within 12 years from the date of her death. She can sell the life interest in the property or mortgage it or make a gift of it to any one she likes. She is entitled to the whole income of the property. She may spend the income in any way she likes. She is not bound to pay her husband's debts out of the income nor is she bound to maintain the members of her husband's family out of the income, Or to perform their marriage ceremonies out of the income. She can throw the burden of all these charges on the corpus of the property, and sell or mortgage the same to meet those expenses. As the entire estate is vested in her, she is entitled to manage the same, but she must not commit waste or do any act injurious to the reversion. She can in certain circumstances surrender her estate in entirety and make gifts.
The question arises, does the Hindu Women's Right to Property Act, 1937, contemplate conferring all these powers on the widow of a deceased coparcener? If it does. I need hardly go into details to show that startling results would follow which could not, reasonably speaking, have been within the ken of the legislature when it enacted this statute for the purpose of giving better rights to Hindu women.
11. Another thing which strikes me is : this Sub-section (3) of Section 3 puts a significant proviso. I should better quote this sub-section:
"Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate, provided however that she shall have the same right of claiming partition as a male owner."
If really the intention of the legislature was to give a Hindu widow all the rights flowing from the incidents of the Hindu woman's estate. I do not think there was any necessity of putting the proviso, in so far as those incidents by necessary implication included the right of a widow possessing such an estate to demand partition, it being quite illogical and irrational to think that such a widow would have the right to alienate the interest devolving on her, but would not have the power to demand partition or sever the joint tenancy by expression of her will.
On the contrary, this proviso is a pointer to the intention of the legislature being that what was really meant by saying that the interest of a Hindu widow under this sub-section would be known as Hindu woman's estate was that the Hindu woman would not be a fresh stock of descent but that after her demise, the interest which had devolved on her, after the death of her husband would go to his heirs or pass to the other coparceners depending upon whether the widow died as a member of joint family or partition had taken place at her instance.
12. If the legislature had not inserted Sub-section (3), it would have been possible to argue with much strength that the widow had got absolute estate like her husband. To that degree, however, it was not thought necessary to go and therefore to clarify the position and forestall such a contention it was provided that the widow would get a limited estate. Sub-section (3) operates, therefore, as a limitation of the right conferred on the widow by Sub-section (2). It does not enlarge it beyond the interest which the deceased coparcener himself had. The existence of the proviso in Sub-section (3) cannot, in my opinion, be explained reasonably on any other hypothesis. It has been put there to highlight the position of a Hindu widow as being intended to be on par with her deceased husband whose interest devolves on her.
By saying in this sub-section at first that the widow shall have a limited estate, the legislature clearly cut down the rights which she was getting under Sub-section (2). But as it was necessary to indicate the limit of this cutting down lest it might be said that she had got only life-estate in the real sense of that term, this proviso was put to contra-indicate this and to show that she will be equal to any male owner so far as the right to seek partition was concerned, it being never the intention of the law to deprive her of this right but to make her equal to her deceased husband. In no case the intention, however, seems to have been to give her greater right than her deceased partner-in-life,
13. I consider, therefore, that if the entire Section 3 of this Act is read as a whole keeping in view the object of the Act and the fundamental principles of construction that all the clauses of a statute should be so construed as to make them harmonious, the only reasonable construction that should be put on the relevant provisions of this Act of 1937 is that a Hindu widow on whom the interest of the husband in the joint family devolves gets those rights of a Hindu woman's estate which would be consistent with the rights which her husband had and not higher than them.
Exactly what would be those rights would.
vary from place to place in this country, as a result of the different principles of Hindu Law prevailing in different parts of the country giving higher or lesser right to a male coparcener of a joint family property so far as the right to alienate his share in that property is concerned.
14. The learned counsel for the appellants urges that the Orissa High Court has held, and for the matter of that other High Courts have also agreed that by the Act of 1937 the widow has not been made a coparcener, and therefore the disabilities attaching to a coparcener would not attach to a Hindu widow who continues to? be a member of the family even after the Act of 1937 and therefore it followed that under Section 3 (3) the widow must be held to be free from all those disabilities and must therefore have all the rights of a Hindu widow, even though those rights be higher and, more extensive in extent than those of the coparcener whose interest has devolved upon her, though it is that very devolution which occasions the conferment of these greater rights upon her.
I think this argument is fallacious, because a member of a Hindu family would not have higher right than a coparcener whose status is higher than that of an ordinary member of a Hindu family. I am unable to agree that the statute in question retained the status of a Hindu widow as that of an ordinary member of the family but at the same time gave her higher rights than what her husband had, as a coparcener.
15. With all respect therefore to the learned Judges of the Orissa High Court, I am unable to follow the Orissa authority relied upon by the learned counsel for the appellants. The true view is that a Hindu widow, upon whom the interest of a member of the joint Hindu family devolves, has got no right of alienation even for legal necessity where her husband coparcener had no such right.
She can of course get a partition made, and after that has been done she will have all the rights of a Hindu widow who holds a Hindu woman's estate similar to those widows who inherit separated property which falls, to the husband after partition, but so long as that has not been done, she cannot claim the right of alienating the interest which has devolved upon her, even for legal necessity or for her her without such legal necessity when her husband had no such right.
She may, aliunde, express her will to separate, and that will bring about a severance in the status of the joint family entitling her thereafter to proceed to deal with the share of her husband treating it as a full-fledged Hindu widow's estate just as her husband could have severed the joint tenancy by expressing his will and thereafter becoming entitled to deal with the property representing his share as absolute owner. Of course, the widow would not have this status of absolute ownership. It will continue in her hands as a limited estate. After her demise, as already stated, the estate would go to the heirs of her husband as reversioners. That is the real and true position emerging from the provisions of the Hindu Women's Right to Property Act, 1937.
16. In the result, the appeal is dismissed with costs.