Skip to content


Jana and anr. Vs. Parvati - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 713 of 1953
Judge
Reported inAIR1958Bom346; (1958)60BOMLR553
ActsHindu Women's Rights to Property Act, 1937 - Sections 3(1) and 3(2)
AppellantJana and anr.
RespondentParvati
Appellant AdvocateD.R. Bhagade, Adv.
Respondent AdvocateK.G. Chendke, Adv.
Excerpt:
.....property acquired on partition and property held as sole surviving coparcener--partition of joint family property between father and son governed by mitahshara--father's widow leasing husband's share acquired on partition--suit by son claiming whole share which father had acquired on partition--whether such share 'interest in joint family property' within section 3(2).;the expression 'separate property' in section 3(1) of the hindu women's rights to property act, 1937, is used in the narrow sense of self acquired property and it does not include property acquired by a male hindu on partition with his son or sons.;the expressions 'separate property' and 'interest in a hindu joint family property' are used in juxtaposition in sub-sections (1) and (2) of section 3 of the hindu..........her son, santosh, the plaintiff-respondent, and gadi were prior to 23rd may, 1946 members of a joint hindu family and at a partition effected between them on that date 3.80 acres of land in field no. 639 was allottedto the plaintiff, and the remaining 7.30 acres of land fell to the snare of gadi. thereafter, it appears the plaintiff sold 1 acre of land from his share to his father with the result that when gadi died on 8tn october, 1948 he was holding 8.30 acres of the land in that field. on 20th april, 1949, the first defendant executed a lease of this land to the second defendant who is the second appellant before me. it is not necessary for the purpose of this appeal to examine all the disputes between the mother and the son, and it will suffice to state that santosh brought this.....
Judgment:

1. This second appeal raises a vexed question of considerable importance and the question relates to the construction of the principal provisions of the Hindu Women's Rights to Property Act, 1937, which introduced important and for-reaching changes in the lawof succession and did so in statutory language which has brought many a lawyer and Judge to a state of perplexity. The enactment wasobviously intended to give better rights to women by recognising their claim to fair and equable treatment in certain matters of succession but unfortunately the rules of devolution laid down in it are so penned that it his given rise to anomalies and a number of conundrums and an attempt to resolve any one difficulty hisoften caused misconceptions and equally great if not greater difficulties in other cases.

2. Jana, the first defendant who is the first appellant before me, is the widow of one Gadi. Her son, Santosh, the plaintiff-respondent, and Gadi were prior to 23rd May, 1946 members of a joint Hindu family and at a partition effected between them on that date 3.80 acres of land in field No. 639 was allottedto the plaintiff, and the remaining 7.30 acres of land fell to the snare of Gadi. Thereafter, it appears the plaintiff sold 1 acre of land from his share to his father with the result that when Gadi died on 8tn October, 1948 he was holding 8.30 acres of the land in that field. On 20th April, 1949, the first defendant executed a lease of this land to the second defendant who is the second appellant before me. It is not necessary for the purpose of this appeal to examine all the disputes between the mother and the son, and it will suffice to state that Santosh brought this suit substantially in assertion of his right to the entire field, and the relief sought by him was that the defendants should be restrained from interfering with his right to enjoy the whole field. The trial Court held that by operation of the Hindu Women's Bights to Property Act, 1937, the plaintiff and the first defendant inherited 8.30 acres of land left by Gadi in equal shades as co-owners and on that ground dismissed the suit. The lower appellate Court has taken the view that on Gadi's death, this 8.30 acres of land passed to the plaintiff and passed a decree restraining the defendants from disturbing the plaintiff's possession of the entire field, and the defendants have now come to this Court in this second appeal.

3. The learned Judge in the lower appellate Court followed a decision of the Nagpur High Court in Bhaoorao v. Chandrabhagubai , where following a decision of the Federal Court in Umayal Achi v. Lakshmi Achi , it was held that under Hindu Law the share received by the father on a partition between him and his son is not his separate property and on his death it passes to his son in preference to his widow. The Hindu Women's Rights to Property Act, it was held in the Nagpur case, docs not in this respect make any difference and the widow is entitled to a share under the Act in the separate property only in the narrow sense, viz., of property acquired by the deceased by his own exertions without the assistance of family funds.

4. The one acre of land purchased by Gadi from Santosh appears to have been acquired with the aid of his share in the ancestral property given to Gadi and the arguments have now proceeded on the footing that the total area of 8.30 acres of land may be treated as if it had been allotted to Gadi on partition between him and Santosh. It is not, therefore, necessary for the purposes of this appeal to draw any distinction between that one acre of land and the 7.30 acres of laud, Which originally formed part of Gadi's share of the field in dispute.

5. It has been argued before me by Mr. Bhagade, learned Advocate for the appellants, that the decision of the Nagpur High Court proceeded on an erroneous view of what was actually laid down by the Federal Court in the case of Umayal Achi (B), and he has placed strong reliance on a recent decision of theOrissa High Court in Visalamma v. Jagannadha Rao, (S) : AIR1955Ori160 , where the view was expressed that in the case of a share obtained by a father on partition the widow is entitled to inherit the entire interest to the exclusion of the divided son or sons. Reliance has also been placed on a very recent decision of the Madras High Court in Subramanian v. Kalyanarama, : AIR1957Mad456 , where the view was expressed that if the property which a coparcener obtains at a family partition is not separate property within the meaning of Section 3 (1) of the Hindu Women's Rights to Property Act, 1937, it must be deemed to be an interest in Hindu joint family property within the meaning of Sub-section (2) of that section.

6. On the other side it has been argued by Mr. Chendke, learned Advocate for the respondent, that this case is covered by the decision of the Federal Court in Umayal Achi's case (B) and he has relied on the Nagpur decision and also on, a very recent decision of the Patna High Court in Trisul v. Doman, : AIR1957Pat441 , where the view has been taken that the share obtained by a coparcener on partition of joint family property is not 'separate property' within the meaning of Section 3 (1) of the Hindu Women's Rights to Property Act, 1937. The argument proceeded that the share acquired by Gadi on partition cannot be treated as his 'separate property' within the meaning of that expression as used in Section 3 (1). This, it was said, logically followed from the principle laid down by the Federal Court. Then it was said that Sub-section (2) of Section 3 dealt with only the case of a Hindu who died 'having at the time of his death an interest in a Hindu joint family property'. This sub-section, the argument ran, could only apply to a case where the deceased was a member of a Hindu joint family at the time of his death, that is where there were other members who would have acquired his interest by survivorship, for instance a son or a brother or any other member. It is only in any such case that the widow of the deceased gets in the joint family property 'the same interest as he himself had', The shore acquired by Gadi on partition was, therefore, neither his separate property nor can it be said that it was interest in joint family property when the joint family was already disrupted and he was holding his share in total severalty from his son Santosh. The Legislature had, according to this argument, not dealt with all types of property of a Hindu dying intestate leaving him surviving among his heirs his widow and a son. The suggestion was that if there was any lacuna in the Act, it was for the Legislature to remedy the defect. The argument based on these premises was that on Gadi's death, the share acquired by him on partition with his son did not devolve on any of his heirs under the Act of 1937, but devolved on his son Santosh by operation of the ordinary rule of succession under Hindu Law, and' Santosh became entitled to the whole of that share.

7. Before examining the rival contentions it will be convenient to state Sub-sections (3) and (2) of Section 3 of the Act :

'3 (1) When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow al! his widows together shall, subject to the provisions of Sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son:

Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's, son if there is surviving a son or son's son of such predeceased son; Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of predeceased son.

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

8. Now the appellants must succeed if Section 3 is to be read as conferring a right on the widow to succeed to property left by her husband where such property was acquired by him as his share on partition of join family property with his son or sons. The parties are governed by the Mitakshara School of Hindu Law, and Jana, the 1st appellant, can claim to have succeeded to the property in dispute either as a sole heir or along with Santosh, the plaintiff, only if the case falls within the purview of Section 3. Sub-section (1) of that section deals with; separate property, left by the deceased husband and Sub-section (2) embraces other property left by him if that property can be equated with 'an interest in a Hindu joint family property'.

9. The short but rather complex question, therefore, that arises for determination is whether Sections 3(1) and 3(2) taken together exhaust the possible circumstances in which a male-Hindu dies intestate leaving property or an interest in property and is survived by his widow and son. To put it differently does the Act treat only (a) of the self acquired property left by such person who is among other heirs or solely survived by a widow and (b) his indeterminate share in property belonging to a joint Hindu family of which he was at the time of his death a member and omits to lay down any rule of devolution in respect of property acquired by him on partition, or property held by him as a sole surviving coparcener. Of Course, the-Court cannot reach a casus omissus and no can-on of construction permits the Court to supply a lacuna in a statute. Omissions are not to be lightly inferred or provided for. The Court, it is a firmly established rule, is not at liberty to read words in a statute unless clear reason for It is found within the four corners of the Act itself or unless it is necessary to do so to give the language sense and meaning in its context. While the Court will not wrest with the language of a statute and will not create or supply a casus omissus, it must at the same time see that

'the true meaning of any passage is to be found not merely in the words of that passage, but in comparing it with other parts of the law, ascertaining also what were the circumstances with reference to which the words were used, and what was tbe object appearing from those circumstances which the Legislature had in view.'

10. The leading case on the subject is Umayal Achi v. Lakshmi Achi (B) decided by the Federal Court and it will be convenient to state succinctly the facts of that case. A wealthy Hindu governed by the Mitakshara School died leaving him surviving his two widows, three daughters by a predeceased wife, a daughter by his third wife who was one of the widows who survived him and the widow of a predeceased son. The widow of the predeceased son brought an administration action in which she claimed a half share in the entire property on the ground that the deceased had acquired it as the sole surviving coparcener of a joint Hindu family and the property was therefore his separate property, and the claim was founded on Sub-section (1) of Section 3 of the Hindu Women's Rights to Property Act. The contention that the property left by a sole surviving coparcener was 'separate property' within the meaning of that expression in Section 3(1) was negatived by their Lordships and in doing so they observed AIR 1945 FC 32 of the report:

''In cases governed by the Mitakshara School of Hindu law, the expression 'separate property' has sometimes been used in a limited sense, to denote what is known as self-acquired property, (See Mulla, 9th Edition, para 230). But, judged by the test of power of disposition, two other kinds of property held by a Hindu governed by that law, viz., property obtained as his share at a partition and property held by him as a sole surviving coparcener may, in some measure, resemble self-acquired property. There is, however, this difference between them, viz., that in the case of self-acquired property, the owner's power of disposition, will continue to remain undiminished throughout his life-time, unless he chooses voluntarily to throw it into the joint family stock, whereas, in the case of other two kinds of property, his power of disposition will become qualified and his interest reduced the moment a son is born to him or the widow of a predeceased coparcener takes a boy in adoption. It would not therefore be right to place these three kinds of property on the same footing merely on the ground that at a particular point of time, the owner may enjoy unrestricted powers of disposition ower them.' It was also observed:

'The expression, 'separate property' may be the antithesis of three other expressions, viz.. 'ancestral property', 'coparcenary property' and 'joint family property'. It is necessary to determine, in the light of the scheme of the Act, the particular sense in which the expression has been used there.' A little later on the same page, their Lordships made certain observations which are meterial for the purposes of this appeal; 'It will help us to ascertin the precise scope of the Act, if we can ascertain the defects which it set out to remedy. Even under the ordinary Hindu law, a widow would in certain circumstances have succeeded to the property held by. her husband as the last surviving coparcener or as the holder of a share obtained on partition. By themselves, these eases did not call for the interference of the Legislature. It is only if the owner had sons (including in that term, grandsons and great grandsons) that the widow would be excluded by the sons. Legislative interference was required to obviate hardship when the owner left a widow as well as sons. Once we take note of the contingency requiring legislative interference, the difference between separate property in the strict sense and separate property in the loose sense will become apparent, In the former case, the sons would not become coparceners with their father and the inheritance would devolve on them only at their father's death. But in the case of property obtained by the father on partition or obtained by him as the last surviving coparcener, the moment sons ara born to him, they will become coparceners and there will be no occasion for the property devolving on them at the death of the father. The closing words of Section 3(1) of the Act, viz., devolve upon his widow along with his lineal descendants in like manner as it devolves upon a son' will be appropriate to the former case but not to the latter case. The language of the clause substituted by Act 11 of 1938 is slightly different but the scheme remains the same. The widow was certainly not intended to become a coparcener with her husband even during his lifetime. The Act of course intended to redress the widow's disabilities even in such a case; but that redress is provided by Sub-section (2) and not by Sub-section (1)' of Section 3.'

11. These observations when analysed appear to me to accept the following propositions:

1. The expression 'separate property' in Section 3(1) has been used in the narrow sense of self-acquired property and it does not include property which devolved on a sole surviving coparcener.

2. The test to be applied in construing the words 'separate property' in Section 3(1) is not the power of disposal of the male owner over the property. In the ease of self-acquired property, the owner's power of disposition continues to remain undiminished throughout his lifetime, whereas in case of property obtained on partition and property which devolved on him as a sole surviving coparcener, his power of disposition will become qualified and his interest reduced the moment a son is born to him or the widow of a predeceased coparcener takes a boy in adoption.

3. One of the defects which the Act set out to remedy was the hardship which was caused when the owner left a widow as well as sons.

4. The narrow sense in which the expression 'separate property' has been used excludes fromthe operation of Section 3(1) property acquired by a male Hindu on partition and property which devolved on him as a sole surviving coparcener. The Act was intended to redress the widow's disabilities even in such a case; but that redress is provided by Sub-section (2) and not by Sub-section (1) of Section 3.

12. There has been some divergence of judicial opinion as to the effect of the Federal Court decision. Question arose whether the ratio decidendi of that case was to be confined only to property which devolved on a male Hindu as a sole surviving coparcener or was equally applicable to property, acquired by him on partition of joint family property. In the case before the Federal Court the dispute was between the widow of a predeceased son on the one hand and the widows and daughters of the deceased owner on the other, and the rule which found favour with their Lordships was that property held by a sole surviving coparcener was not 'separate property' within the purview of Section 3(1). It is true that the Federal Court was not called upon to deal with the question of devolution of property acquired by a male Hindu on partition with his son or sons but it does emerge from the judgment in that case that in the context of Section 3(1) the two types of property were equated and it will be noticed that they were bracketed throughout the discussion on the meaning of the expression 'separate property.' I am dutifully bound to follow the decision and it is not open to me to express any opinion of my own on the question of the interpretation of the expression 'separate property'. An alternative argument advanced by Mr. Bhagade, learned counsel for the appellants, was that the Federal Court has not decided that the share acquired by a male Hindu on partition in a family governed by the Mitakshara is not separate property and I must distinguish that ease and hold that it is separate property Mr. Bhagade's first contention was that in view of what has been stated in the judgment of the Federal Court in discussing the meaning of 'separate property' it must follow that the share obtained by the father on a partition with his son or sons is 'an interest in a Hindu joint family' and in the alternative he urged that the decision of the Federal Court should be distinguished. Learned counsel drew my attention to the case of Subraminian v. Kalyanarama, : AIR1953Mad22 , decided by Krishnaswamy J. where the decision of the Federal Court was distinguished and it was held that in the case of property obtained by a father as a share at a partition it is the separate property of the father in which his widow is entitled to a share with his sons with whom the partition was effected. But there was a Letters Patent Appeal from that decision, and in the judgment reported in AIR 1957 Mad 455, the view was taken that the principle of the Federal Court decision would equally apply to the case of property taken by a member of the joint family at a partition of family properties. There seems little doubt that the principle enunciated by their Lordships of the Federal Court would be equally applicable tothe present case and I would not be justified in distinguishing that case in the manner suggested on behalf of the appellants.

13. The Madras High Court in the above case, : AIR1957Mad456 , ultimately preferred to take the view that if the property which a coparcener obtains at a family partition is not separate property within the meaning of Section 3(1) of the Act it must be deemed to be an 'intetest in Hindu joint family property' within the meaning of Sub-section (2) of Section 3. The learned Chief Justice goes on to observe that

'if the fact that on the birth of a son, such son would have a right by birth in the property obtained by a coparcener at a partition prevents us from holding that such property is separate property, it follows from the very fact that it should be deemed to be joint family property'. The same question arose in the case decided by the Orissa High Court in (S) : AIR1955Ori160 , and was resolved by taking the view that where a Hindu has effected a partition with his only son and the parties are governed by the Mitakshara School, the properties which fell to the share of the father are not his separate properties for the purpose of Section 3(1) but are joint family properties within the meaning of Section 3(2) of the Act.

14. Reliance was placed on behalf of the appellants on these two decisions and it was argued that the words 'any interest in a Hindu joint family property' in Sub-section (2) read in the context of Section 3 must cover a share obtained by a father on partition with his son. Now, speaking generally, the nature and incidents of such property held by a Hindu father must be ascertained as of the time when the question arises whether it is separate property or joint family property and I confess to some difficulty in acceding to this argument. The construction urged has, of course, the merit of being a logical corollary to the narrow meaning of the expression 'separate property' used in Sub-section (1). Since that expression has to be understood in a narrow sense in Sub-section (1) a parity of reasoning should apply and a comprehensive meaning and wide connotation must attach to the words 'interest in joint family property' in Sub-section (2). This is no doubt partly on the assumption that Sub-section (1) and (2) are intended to deal with all types of property of a Hindu governed by the Mitakshara School dying intestate leaving him surviving among his heirs his widow and son or sons. But the assumption is not a priori and is justified. It is extremely difficult to subscribe to the argument pressed before me on behalf of the respondent, that property acquired by a father on partition with his son is not within the scops of either of the two Sub-sections of Section 3 and that this a casus omissus. I have little doubt that any property left by a father in any such case must fall either under Sub-s. (1) or Sub-s. (2) of Section 3. Support is to be derived for this conclusion from the view expressed by the Federal Court in the case of Umayal Achhi (B), that one defect which the Act set out to remedy was the hardship which under the previous law was caused when the ownerleft a widow as well as sons. The expressions 'separate property' and 'interest in Hindu joint property' are used in juxtaposition in Sub-sections (1) and (2) of the section and between thorn deal with all property left by such owner. Support is also to be derived for this view when the two expressions are read in the light of the context of the Act and the scheme of the Act. Then again, there is considerable support lent to this view from intrinsic evidence in the form of the words 'when a Hindu governed by the Dayabhaga School of Hindu law dies intestate leaving any property'. These words 'any property' understood in their common and ordinarily accepted sense may or may not include any special or peculiar type of property but would in any case apply to property acquired by a father on partition with his son and property held by a sole surviving coparcener. If the Act deals with such property in a case governed by the Dayabhaga School there seems no reason to suppose that the Legislature omitted to deal with such property in respect of a case governed by the Mitakshara School. For the reasons which I have indicated, I conclude that the 8.30 acres of land in question which Gadi died possessed of was 'interest in joint family property' and its devolution was controlled by Sub-section (2) of Section 3.

15. That would seem to leave for solution the second question: What is the meaning to be attached to the words 'The same interest as he himself had' enacted in Sub-section (2) The widow, it is in terms laid down in Sub-section (2), acquires the same interest which the deceased himself had in such property. No difficulty can arise whore there is no son, grandson or great-grandson of the deceased because in such a case the widow even under the previous law became entitled to property which he had received on partition. But the question which can arise in the present context is whether in case of property acquired by him on partition with his son does the whole of his share devolve on the widow or is the separated son entitled to claim a share in it with the widow on the ground that it has to be treated as 'interest in joint family property'. There is certainly strong argument for saying that in such a case the widow alone would inherit that property. Now, in the present case, the trial Court took the view that the 8.30 acres of land devolved on the widow and son of Gadi in equal shares and dismissed the suit. No appeal or cross-objections were filed by the widow and the result of the view I have already taken is that the suit must stand dismissed. I do not decide, therefore, whether the trial Court was right in holding that the son acquired a half share in that property along with the widow.

16. In the result, the decree of the lower appellate Court will be set aside and that passed by the trial Court will be restored. There will be no order for costs of this appeal.

17. Appeal allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //