Patna High Court
Triloki Mandar And Ors. vs Smt. Dukhni Devi And Anr. on 16 July, 1965
Equivalent citations: AIR1966PAT259, AIR 1966 PATNA 259, ILR 45 PAT 1285
JUDGMENT G.N. Prasad, J.
1. This appeal has been preferred by defendants first party and is directed against the preliminary decree in a suit for partition of joint family properties.
2. The parties belong to the family of one Ramesar Mandar who left behind three sons--Darbari, Banwari and Triloki. The appellants are Triloki and his sons. Dukhni (plaintiff) and Ratia (defendant second party) are the daughters of Banwari, whose widow was Mossomat Bhago. It is common ground that Darbari separated from the other two branches of the family sometime in 1939, and that Banwari and Triloki continued to remain joint.
3. The case set up by the plaintiff was that Banwari died in the year 1939 in state of jointness with Triloki and his sons, and his widow Mossomat Bhago died on the 29th June 1958. The plaintiff, therefore, claimed one fourth share in the joint family properties belonging to Banwari and Triloki, and the instituted the present suit for partition on the 23rd July 1958, implcading her sister Ratia as defendant second party.
4. Defendants first party resisted the Claim for partition on various grounds. Their case was that Banwari died in 1935. and not in 1939, and as such Mossomat Bhago acquired no interest in the joint family properties, except that of receiving maintenance which she was getting all along until her death in June 1958 Therefore, no interest in the joint family properties passed to her daughters (Dukhni and Ratia). Consequently the suit for partition was not maintainable. It was also barred by limitation. The further defence put forward was that some of the items of properties sought to be partitioned were not liable to be partitioned since they were the separate properties of the defendants, first party.
5. Upon a consideration of the evidence adduced by the parties the trial Court negative the defendants' case and held that Banwari had died in 1939. as alleged by the plaintiff The trial Courl further found that all the items of properties mentioned in the plaint were joint family properties and as such liable to be partitioned. Upon these findings, the trial Court has held that -/8/ annas share in the suit properties belongs to defendants first party and in the remaining /8/ annas, half share belongs to the plaintiff and the other half share belongs to defendant second party A preliminary decree for partition of the suit properties in accordance with such shares having thus been passed, the defendants first partv have come up to this Court in appeal.
6. Mr. R.S. Chatterji for the appellants did not dispute the correctness of the findings of the trial Court as to the year of Banwari's death and as to the joint character of all the tems of the suit properties. Learned counsel, however, contended that even upon the footing that Banwari had died in 1989, it must be held that the suit for partition was not maintainable and should have been dismissed.
According to the learned counsel, Mossomat Bhago was, no doubt, entitled to the benefits of the Hindu Women's Rights to Property Act, and under. Section 3(2) of the said Act, she acquired the same interest in the joint family properties which her husband Banwari had. By virtue of Section 3(3) of the said Act, she had a right of claiming partition of the joint family properties but she was not a co-parcener and, therefore, the co-parcenary interest in the properties passed in its entirety to Triloki by survivorship. Mossomat Bhago, however, did not exercise her right of partition during her lifetime and, therefore, there was no disruption of the joint status and Bhago did not come in possession of the interest which had devolved upon her under the Hindu Women's Rights to Property Act. In this view of the matter, the suit properties were not possessed by Mossomat Bhago within the meaning of Section 14 of the Hindu Succession Act, 1956, either on the 17th June 1956, when the Act came into force or at the time of her death in June 1958. The suit properties accord ingly continued to remain the properties of the coparcenary in which the plaintiff and defendant second parly acquired no title upon the death of Mossomat Bhago. In. support of his contention, learned counsel relied upon R.B. S.S. Munnalal v. S.S. Rajkumar, AIR 1962 SC 1493. Mt. Khatrani Kuer v. Smt. Tapeshwari Kuer, AIR 1964 Pal 261 (FB). Sm. Sabujpan v Salrughan Issar, AIR 1958 Pat 405 and P Lakshmi Perumallu v. P. Krishnavenamma, AIR 1965 SC 825.
7. The whole question for consideration is whether it is correct to say that Mossomat Bhago did not come in possession of the interest in the joint family properties which were left behind by her husband. There can be no doubt that upon the death of Banwari which took place in 1939, she acquired in the joint family properties the same interest which Banwari had. even though she did nol become a coparcener and Banwari's interest did not devolve upon her either by survivorship or by inheritance Her status was that of a member of the joint family with special statutory rights, as an incident of which she could claim partition of the joint family properties But the very fact that she had a right of claiming partition would imply that she had come in possession of her husband's interest in the joint family properties by operation of law. because a right of claiming partition can only be exer cised by a person who is in possession of the properties concerned jointly with the other co-sharers thereof. Reading Sub-section (2) with Sub-section (S) of Section 3 of the 1937 Act, it is manifest that the interest of .Banwari in the joint family properties had vested in Mossomat Bhago and she was in possession thereof not only on the date of the commencement of the Hindu Succession Act, 1956, but also at the time of her death in June 1958. She was in possession of such interest along with the other members of the joint family, and the mere fact mat she did not exercise her right of partition,did not put her out of possession over such interest in the family properties.
Her possession was that of an ordinary member of the joint family in possession of Ihe family properties, jointly with the other co-sharers, the only difference being that until the Hindu Succession Act, 1956, came into force, her interest in the joint family properties, was that of a limited owner which, with effect from the 17th June 1956, ripened into that of a full owner by virtue of Section 14 of the Hindu Succession Act, 1956. It is impossible to accept He contention of Mr. Chatlerji that Mossomat Bhago was not in possession of her husband's interest in the joint family properties wilt in the meaning of Section 14 of the 1956 Act, simply because she had not exercised her right of claiming partition of the joint family properties. Even without seeking partition, she could remain in possession of the interest which devolved upon her under the Hindu Women's Rights to Property Act. 1937 The right of claiming partition was only an additional privilege which was conferred upon Hindu widows under the 1937 Act. It was not a necessary concomitant hi the vesting of the husband's interest in the joint family properties in her. In other words, there was nothing in law to prevent a Hindu widow from remaining in joint possession of her husband's interest which devolved upon her under Section 3(2) of the 1937 Act.
In my opinion, there is no escape from the conclusion that Mossornal Bhago was (sic) possession of her husband's interest in the joint family properties until her death in June. 1958, her possession being joint with defendants fisst party, even though she did not acquire the status of a co-parcener. I, therefore, see no reason why Section 14 of the Hindu Succession Act, 1956, could not be attracted merely because Mossomat Bhago did not choose to exercise her right of partition. In my judgment, at the time of her death, Mossomat Bhago was a full owner in possession of her husband's interest in the joint family properties and the same undoubtedly passed to her daughters upon her death.
8. This conclusion is in no way in conflict with either of the two Supreme Court decisions relied upon by Mr. Chatterji. In Munna-lal's case, AIR 1962 SC 1493, the widow whose name was Khilonabai had died after a preliminary decree for partition of the joint family properties had been passed, but she had died after the Hindu Succession Act, 1956, had come into force, and the contention put for ward before their Lordships of the Supreme Court was that the interest of Khilonabai in the estate was merely inchoate and such inchoate interest after her death and before actual division of the family properties by metes and bounds must be deemed to have reverted to the estate out of which it was carved. But this contention was not accepted by their Lordships, and it was held that the interest declared in favour of Khilonabai was possessed by her within the meaning of Section 14 of the Hindu Succession Act, although there, was no partition by metes and bounds during her lifetime.
I find nothing in their Lordships' decision in Munnalal's case, AIR 1962 SC 1493 which might lend support to the proposition that the limited owner would not be deemed to be in possession of her interest in the joint family properties unless she exercised her right of partition during her lifetime. In my opinion, at the lime of Ihe passing of the Hindu Succession Act, 1956, the fact of Mossomat Bhago being in possession could not be dependant upon her having previously exercised the right of partition which she had acquired under the 1937 Act. This is clear from the following observation of their Lordships in Munnalal s case:
"By Section 14 (1) manifestly it is intended to convert the interest which a Hindu female has in property however restricted the nature of that interest under the Sastric Hindu Law may be into absolute estate. Pralapmull's case, (1936) 63 Ind App 33: (AIR 1936 PC 20) in doubtedly laid down that till aclual division of the share declared in her favour by a preliminary decree for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, bill that rule cannot in our judgment apply after the enactment of the Hindu Succession Act."
Their Lordships furl tier observed:
''It is true that under the Saslric Hindu Law, Ihe share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance- She was not entitled to claim partition But Ihe Legislature by enacting the Hindu Women's Rights to Property Act. 1937, made a significant departure in that branch of the law: the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned she became owner in severally of her shaie, subject of course to the restrictions on disposi tion and the peculiar rule of extinction of the estate on death actual or civil. It cannot be assumed having regard to this development that in enacting Section 14 of the Hindu Succession Act, the Legislature merely intended to declare the rule enunciated by the Privv Council in Pratapmull's case. (1936) 63 Ind App 33: AIR 1936 PC 20 "
These observations of then Lordships clearly show that the right of partition conferred upon a Hindu widow by the 1937 Act was designed only to enable her to become "owner in severaltv of her share" But if she did not exercise her right of partition, then she must be deemed to be owner in possession of her share jointly with the other members of the family, and such possession would undoubtedly fall within the ambit of Section 14 of the Hindu Succession Act.
9. In the other Supreme Court case, AIR 1966 SC 825 relied upon by Mr. Chatterji, the question which we are considering did not fall to be decided. There, the question arose as to which would be the quantum or extent of the interest to which a Hindu widow was entitled under Sectioin 8(2) of the Hindu Women's Rights to Property Act, 1987, and it was held that the quantum of her interest was to be determined as on the date on which she sought to enforce partition under Section 3(8) of the Aot. In this connection their Lordships observed:
"According to the theory underlying the Hindu law, the widow of a deceased Hindu if his surviving half and therefore as long as she is alive she must be deemed to continue to exist in her person. This surviving half had under the Hindu law texts no right to claim a partition of the properly of the family to which her husband belonged. But the Act of 1937 hps conferred that right upon her. When the Act says that she will have the same right as her husband had, it clearly means that she would be entitled to be allotted the same share as her husband would have been entitled to had he lived on the date on which she claimed partition."
These observations leave no room for doubt that if Banwari was in joint possession of the undivided interest in the joint family properties at the lime of his death in 1939, then the same interest remained in possession of Mossomat Bhago until her death, and only the quantum of that interest was to be determined on the date on which she or her heirs sought partition. But the mere fact that the quantum of her interest was not determined during her lifetime because she did not (sic) cise her right of partition, no conclusion can follow that she was hot everv in possession of such interest Though the extent of the interest was undefined it was undoubtedly vested in her on the date of the passing of the Hindu Succession Act. 1956. and was enlarged into an absolute interest with effect from that date. In other words. Mossomal Bhago. at the time of her death, was in possession as a full owner of the same interest which her husband would have had on the date of her death. Thus, this decision of the Supreme Court also lends no support to the contention of Mr Chatterji.
10. In Khatrani's case, AIR 1964 Patna 261 in which the decision was given by a Full Bench of this Court, the legal status of a Hindu widow was considered with reference to Section 3(2) of the 1937 Act. and it was pointed out that she did not become a co-parcener in the joint family, although she got an interest in the joint family properties in place of her husband. It was further held that the mere fact that she took that interest did not amount to disruption of the joint family and the joint family continued as before. It was also held that although the Hindu widow got the same interest in the joint family property which her husband had, she was not clothed with all the rights of her husband. Another proposition laid down by the Full Bench was, and that has been strongly relied upon by Mr. Chatterji, that the joint family would be disrupted if the widow of a co-parcener, who has succeeded to his interest. asked for partition, but if she died without asking for partition, the interest held by her would pass to other co-parceners by survivorship. It must, however, be noted that their Lordships of me Full Bench have nowhere said that the Hindu widow would not be deemed to be in joint possession of her husband's interest in the joint family properties so long as she did not ask for partition. Their Lordships were only considering the question as to the effect of the widow's omission to ask for partition during her lifetime on subsequent devolution, under the law, as it stood prior to the passing of the Hindu Succession Act, 1966. In other words, the question as to the impact of Section 14 of the Hindu Succession Act, 1956, upon the rights of a Hindu widow or female owner did not arise for consideration of the Full Bench. I am, therefore, of the opinion that this decision is of no avail to Mr. Chatterji.
11. The other Patna case, AIR 1968 Pat 405, was also a decision upon the state of the law as it stood prior to the passing of the Hindu Succession Act, 1966. It was held that under the provisions of the Hindu Women's Rights to Property Act, a widow of a deceased co-parcener was, placed in the same position as the deceased co-parcener was for the reason of the fiction that half the body of the deceased husband survived in the widow, and that, like her husband, the widow also was entitled to effect severance of the joint status of the family by an unequivocal expression of intention to separate. But if the widow did not exercise her right of partition and died without expressing am intention to separate, then the interest of the husband, which she enjoyed, passed by survivorship to the other members of the joint family. This decision also nowhere lays down that the widow was not in possession of the interest of her husband which she acquired under the 1937 Act. On the other hand, the use of the expression "which she enjoyed" Would suggest that the widow was deemed to have been in possession of her husband's interest in the family properties so long as she lived. Such possession, in my opinion, would be governed by Section 14 of the Hindu Succession Act, 1956. after the latter Act came into force This conclusion is amply supported by a Bench decision of this Court in Rup Raut v. Basudeo Raut, 1962 BLJR 540: (AIR 1962 Pat 436), to which my learned Brother was a party In that case, the question, whether without seeking partition of her deceased husbann's interest in the co-parcenary property, a Hindu widow could acquire full ownership over such interest, directly arose for consideration, and it was held that the right conferred upon the widow by the 1937 Act was neither inchoate nor imperfect till she sought partition, and that by a legal fiction created by the said Act, "the undivided interest in the joint family property in the hands of a widow undergoes a change in character, even without-and before partition. In that context, it cannot but le treated as property in joint possession of the widow and other members of the joint family, and in that event, on the coming into effect of Hindu Succession Act, 1956, she (widow) would acquire absolute rights over her interest or share in that property under Section 14." Their Lordshipg further observed:
"The Legislature could not have kept the Hindu widows, who aucceeded before the new legislation, to the undivided interest in the coparcenary property of their deceased husbands under Section 8, Sub-clause 2 of the Hindu Women's Rights to Property Act, in a position more precarious than and inferior to that of their eounter-parts, upon whom, under Section 14 of the Hindu Succession Act, absolute right in all their acquisitions were conferred. That section mentions about acquisitions both before and after the commencement of the Act, which indicates clearly the inclusion of the Hindu Women's estate that devolved upon a Hindu widow before this Act, (under the previous Act), on the death of the husband who was a member of a Mitakshara joint family. If the benefit of Section 14 are denied to such widows, in respect of the interest of the deceased husband, devolving upon them before the 17th June, 1956, an unexplainable difference in legal status between one section of Hindu widows and another, will be inevitable, and that would be plainly against one of the main purposes of the Hindu Succession Act. The enacting provisions of the Act also lead to the same conclusion.
I am, therefore, unable to accept the contention of Mr. Chatterji, and 1 hold that Mossomat Bhago was in possession of the un-divided interest of her husband in the joint family properties until her death in June 1958. even though she did not choose to exercise her right of partition. Therefore, she was possessed of such properties within the meaning of Section 14 of the Hindu Succession Act, when that Act came into force, and held the same as full owner at the time of her death. Her interest was, therefore, acquired by her two daughters in equal shares.
12. Mr. Chatterji next contended that in order that Section 14 of the 1956 Act might apply, the female Hindu must be in possession of the property itself, and not of an interest in such property. According to Mr. Chatterji, the property was in possession of the defendants first party thrpughout the lifetime of Mossomat Bhago and, therefore. Mossomat Bhago did not acquire the rights of a full owner therein, even though she may have been in possession of an interest in the property. I am unable to accept Mr. Chatterji's contention as correct. In my opinion, the distinction sought to be made between "property" and "interest in properly" is a distinction without a difference. It is well settled that the expression "property" occuiring in Section 14 of the 1956 Act has to be construed in a broad sense, and as pointed out by their Lordships of the Supreme Court in Gummalapura Taggina Matada Kotturuswaroi v. Setra Veeravva, AIR 1969 SC 577, the word "possessed" in Section 14 means "the state of own ing or having in one's power". Therefore, the interest held by a Hindu widow by virtue of Section 3(2) of the 1987 Act must be deemed to be property possessed by her within the meaning of Section 14 of the 1966 Act.
Mr. Chattarji has relied upon the explanaton appended to Section 14(1), which reads:
In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, 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 in any other manner whatsoever, and also any such properly held by her as stridhana immediately before the commencement of this Act"
But the explanation contains only an inclusive definition or the word "property". It is not an exhaustive definition of that expression. The argument of Mr. Chatterji really proceeds up a the assumption that Mossomat Bhago was not in possession over the properties, but such an assumption is not justified. I am, therefore, of the opinion that the "interest in property" is "property" within the meaning of Section 14(1) of the 1956 Act.
13. The conclusion must, therefore, be that the suit properties were in joint possession of defendants first party and Mossomat Bhago in equal shares, and that after Mossamal Bhago's death, her half share devolved equally upon her two daughters, namely, the plaintiff and defendant second party. No question of limitation can arise in the absence of any pleading or proof of ouster on the part of defendants first party. I, therefore, feel satisfied that the suit for partition is maintainable and the decree passed by the Court below is correct.
14. The result; therefore, is that the appeal is dismissed with costs.
Mahapatra, J.
15. I agree