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Rakhmabai Kachu Vs. Sitabai Kachu - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 479 of 1950
Judge
Reported inAIR1952Bom160; (1952)54BOMLR55; ILR1952Bom455
ActsGuardians and Wards Act, 1890 - Sections 7 and 9; Hindu Women's Rights to Property Act, 1937 - Sections 3(1), 3(2) and 3(3) ;
AppellantRakhmabai Kachu
RespondentSitabai Kachu
Appellant AdvocateM.G. Chitale, Adv.
Respondent AdvocateV.S. Desai, Adv.
Excerpt:
.....sections 7, 9, 10, - hindu women's rights to property act (xviii of 1937), section 3 (2)(3)--joint hindu family consisting of widows and minor son--whether guardian can be appointed of minor's property under g. & w. act.;in a case where a joint hindu family consists of two widows and a minor son, a guardian can be appointed of the property of the minor under the guardians and wards act, 1890.;the position of a widow in such a case is that while she is a member of the joint family, she is not entitled to be the manager of the family and all that she is entitled to is to claim an interest in the joint family property by partition if she is so minded. if she cannot be the manager of the family, then there is nothing to prevent the court from appointing an. officer of the court as..........than the dayabhag school or by customary law dies having at the time of his death an interest in a hindu joint family property, his widow shall, subject to the pro visions of sub-section (3), have in the property the same interest as he himself had 'it is urged that rakhamabai has a share in the family property, and since she was managing the property, the appointment of the deputy nazir cannot be made. in determining this question it is necessary to appreciate the true position of a lady like rakhamabai in the family. rakhamabai is one of the two widows of deceased kaohu. prior to the passing of the hindu women's rights to property act, 1937, all that she was entitled to was maintenance, and a provision for residence. the act conferred upon her better rights and under section 3(2) she.....
Judgment:

[1] This is an appeal from an order made by the District Judge, Nasik, appointing the Deputy Nazir as guardian of the property of a minor by name Khanderao. The facts leading up to the application arc these.

[2] One Kachu died on April 15, 1945, leaving him surviving two widows, Bikhama and Sita, a son by Sita called Khanderao, a daughter by Sita called Kamal and a married daughter by name Bhagu by Rakhama. Rakhama is the senior widow, while Sita, the mother of Khanderao, is the junior widow. It appears that Kachu left at his death a house and lands both Bagayat and Jirayat. He had a grape garden and also a guava garden. The evidence shows that the net income of the property left by Kachu is between Rs. 3.000 and Rs. 4,000. Khande-rao was just an infant, being about 5 years of age, when the application was made on 19th December 1949, for the appointment of the guardian of the person of Khanderao and Kamal and for the appointment of the guardin of the property of Khanderao. It was alleged in the application that this step-mother, i.e., Rakhama, was in possession of the estate of Kacha, and that the management was detrimental to the interest of the minor son. Besides the property which I have mentioned above, the application mentions considerable moveable property in Schedule B consisting of out standings. In the application, the total value of the property is stated to be Rs. 65,065.

[3] Rakhamabai opposed the application. Her contentions were that the application was not/maintainable in view of Section 9, Guardians and Wards Act, that her management was efficient, that she had an undivided one-third share in the estate of Kachu, and that if the property was given in be management of the Deputy Nazir, the same would be neglected and that the application was made at the instigation of parsons hostile to opponent Rakhama.

[4] Upon the evidence adduced before him, the learned Judge accepted the application and made an order appointing Sitabai as the guardian of the person of the minor a Kamal and Khanderao and appointing the Deputy Nazir as the guardian of the property of the minor. He also made consequential orders in order to give effect to the main order. Opponent Rakhamabai has appeal ed.

[5] Upon this appeal the first contention taken on behalf of the appellant is that this was not a ease in which it was necessary to make an appointment of the guardian of the property of the minor. I was referred to the evidence of Sitabai and the evidence of Rakhamabai. While Sitabai stated that it was necessary to make the appointment of the guardian of the property of the minor, Rakhamabai stated that the minor's estate would suffer if the Deputy Nazir was appointed guardian o the estate. It will be seen from the evidence of Sitabai that the property left by Kachu was considerable. Rakhamabai who is in possession is a step mother of the minor Khanderao. It appears from the evidence of Sitabai that Rakhamabai was not conducting the management in consultation with Sitabai, and that Rakhamabai asked Sitabai to leave the family The family consists of the two widows, the minor Khenderao aged 5 and an unmarried daughter Kamal aged 9. When it is remembered that the step mother is in possession of the property and the relations between the two being strained and the property left by Kaohu considerable, which, on Rakhamabai' own showing, is not managed without the assistance of be servants, it seems to mo that the lower Court was right in appointing the Deputy Nazir as the guardian of the property of the minor. According to Section 7, in making the appointment of a guardian of the property of a minor, the Court must be satisfied that it is for the welfare of a minor that an order should be made, and having regard to the aforesaid considerations, it seems to me that the learned District Judge was right in making the appointment of the Deputy Nazir as the guardian of the property of the minor Khanderao.

[6] But Mr. Chitale's contention is that in this case the Deputy Nazir cannot be appointed as guardian of the property, because Rakhamabai has an interest in the property and she is in management of the property. Reliance was placed upon Section 3, Sub-section (2), Hindu Women's Rights to Property Act. 1937, So far as material, a he section is as follows ;

'When a Hindu governed by any school of Hindu law other than the Dayabhag school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the pro visions of Sub-section (3), have in the property the same interest as he himself had '

It is urged that Rakhamabai has a share in the family property, and since she was managing the property, the appointment of the Deputy Nazir cannot be made. In determining this question it is necessary to appreciate the true position of a lady like Rakhamabai in the family. Rakhamabai is one of the two widows of deceased Kaohu. Prior to the passing of the Hindu Women's Rights to Property Act, 1937, all that she was entitled to was maintenance, and a provision for residence. The Act conferred upon her better rights and under Section 3(2) she got an interest in the joint family property which her husband had in it at the time of his death. It is to be noticed that Section 3, Sub-section (2) does not give be a share in the joint family property. According to Section 3, Sub-section (3), the interest which devolved upon her is the interest known as a Hindu woman's estate, and she is given the right to claim partition as a male owner. A widow like Rakhamabai is not a co-parcener. She does not get an interest in the joint family property either by survivorship or by inheritance. She gets a special kind of property under the Hindu Women's Eights to Property Act, 1937. Allthough she is not a coparcener, she is a member of a joint Hindu family. Now, in a joint Hindu family it is the eldest male member who is entitled to at as the manager of the family. Mr. Chitale be one stage contended that she was a coparcener. But I think the contention is fantastic. The test to determine the question whether a widow in be position of Eakhama is a coparcener or not is to see whether be gets an interest in the property by birth and whether she gets property by survivorship. These two attributes of She conoeption of coparcenary can hardly apply to a widow, and, in my opinion, it is idle to contend that she is a coparcener in the family. But Mr. Chitale contends that there is nothing in law to prevent her from acting as a manager of the family. I am unable to accept this contention. In a joint Hindu family it is the eldest male member who acts as the manager and leader of the family and I am not prepared to accept the position that merely because a widow gets an interest in the joint family property, that would invest her with the right of a manager of the family, and this is' settled by authority.

[7] Where a family consists of adults and minors, the appointment of a guardian of the property of a minor cannot be made under the Guardians and Wards Act, 1890. This principle is laid down in Virupakshnppn v. Nilgangava 19 Bom. 309. This proceeds upon the view that where you have an adult who is the manager of the family, an appointment of a guardian of the property of a minor under the Guardians and Wards Act will interfere with the management of the manager who has a right under the law to manage the property. Virttpakshappa's case, therefore, does cut assist Mr. Chitale. The case of Bindaji v. Mathurabai 30 Bom 152, was a ease of a family consisting of minors, and it was held that where all the coparceners are minors, a guardian of the proper of the whole number can be made. But Mr. Chitale contends that in this case the family consists of a minor and two widows and 80 the appointment of a guardian under the Guardians and Wards Act cannot be made. The nature and the extent of the rights given to a widow under Section 3, Hindu Women's Eights to Property Act were considered in Naguppu Narayan v. Mukambe Venkatraman 63 Bom. L. R. 177 It is there pointed out that einterest which a widow gets by virtue of Section 8, Sub-section (2), 13 not by right of survivorship or by tight of inheritance but the Act gives the widow a special kind of property. It is to be noticed that Section 8, Sub-section (12), uses the expression 'interest' and does cot use the expression 'share.' In this connection Section 8 (1) and Section 8 (2) may be contrasted.

The position, therefore, of Rakhamabai in the family is that while she is a member of a joint Hindu family, she is not entitled to be the manager of the family, and all that she is entitled to is to claim an interest in the joint family property by partition if she is so minded. If she cannot be the manager of the family, then there is nothing to prevent the Court from appointing an officer of the Court as guardian of the property of the minor, and the mere circumstance that she has an interest in the joint family property gives her no right to say that in such a case a guardian cannot be appointed of the property of the minor. As I said, where the family consists of adults and minors, the position is a simple one. In such a cage, no guardian can be appointed, In a ease where the coparceners consists of minors only, a guardian of the property of the minors under the Guardians and Wards Act can be made, and the question which falls to be determined in this case is whether in a case whore the family consists of two widows and a minor eon, a guardian can be appointed of the property of the minor While it is noticeable that she gets an interest in the family property which her husband had at the time of his death, the property continues to be the joint family property, and all that the widow is entitled to is to claim by partition an interest in the property which her husband had at the time of his death. If she is not the manager of the family, then some one must step in a suitable case in order to protect the interest of the minor, and I do not see why in such a case the Court would have no power to appoint an officer of the Court as guardian of the property of the minor. In this particular case, the minor on attaining the age of majority, willbe entitled to manage the property If Mr. Chi-tale's argument is right, in such a case the minor, on attaining majority, will not be entitled to be the manager of the property, because Rakhamabai would, according to him be the manager of the family, such a result will, in my opinion, be startling. I am not, therefore, satisfied that the contention urged in support of the appeal is correct. Besides, the view which I take is in accordance with the decision of the Madras High Court reported in the case of Seethatai v. Narasitnha, I. L. R. (1945) Mad. 568. For all these reasons the lower Court was, I think, right in appointing the Deputy Nazir as the guardian of the property of the minor.

[8] The last contention taken on behalf of the appellant is that in any case Rakhamabai should not be deprived of the possession of the property in her possession and that time should be given to her in order to enable her to file a suit for partition. This argument is, I thick, leas impressive than the one which I have dealt with already. Section 3, Sub-section. (8) of the Act, gives her a right to demand partition Section 8, Sub-section. (3) gives her an interest in the joint family property, and it was open to her, if she was so minded, to claim partition at any time she liked. But she cannot resist the present application by contending that no appointment could be made and yet continue the status quo by not filing a suit for partition. As regards a suitable provision to be made for Rakhamabai, the lower Court has made an order in that sense, and I do not think that any further order is necessary.

[9] For the above reasons, therefore, I think the decision of the lower Court is correct. This appeal fails and the same will be dismissed with costs,

[10] Appeal dismissed.


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