1. There is no substance in this appeal and is liable to be dismissed.
2. The facts necessary for the disposal of this appeal are as follows : The property in dispute are three plots of land bearing S. Nos. 524/1, 541 and 543 and a residential house bearing Gram Panchayat House No. 434, situate at Nanded.
3. One Ramchandra Hari and his son Pundlik constituted a joint Hindu family which owned suit property, Pundlik died leaving him surviving has widow Mathurabai the plaintiff, two sons Laxman and Pralhad, and a daughter Jaibai. Laxman and Pralhad died in 1943-44. Thereafter the joint family consisted of three persons, viz. Ramchandra Mathurabai plaintiff, and Jaibai Ramchandra died on November 26, 1948 leaving a Will dated October 25, 1948 whereby he bequeathed the suit lands to defendant No.1 and the suit house to defendant No.2. Accordingly defendants Nos. 1 and 2 took possession of the suit property. By a sale-deed dated June 10, 1958, defendant No. 1 sold S. Nos. 541 and 543 to defendant No.3. The plaintiff brought the present suit on July 28, 1960 to recover possession of the suit property and meson profits. She contended that though Ramchandra was the sole male member in the Joint family he had no power to bequeath the suit property to defendants Nos. 1 and 2 and that on his death his interest in the suit property devolved on her under the Hindu Women's Right to Property Act, 1937. The defendants contested the suit inter alia on the ground that Ramchandra being the sole surviving coparcener had a right to dispose of the suit property by Will. the trial Court decreed the plaintiff's suit and on appeal by the defendants the Assistant Judge, Dhulia confirmed the decree. Defendants Nos. 1 and 2 have now come in this appeal.
4. This appeal arises the question about the right of widow of a deceased coparcener who acquired her husband's interest in the joint family property under the Hindu Women's Right to Property Act (hereinafter referred to as the Act) to succeed to the interest of the sole-surviving coparcener in such property after his death.
5. Now under Sections 2 and 3 of the Act the widow on her husband's death in a joint family gets the same interest that her husband had with the limitation that the interest is not absolute but is limited known as Hindu Woman's estate. Till recently there was some difference of opinion amongst the High Courts on the question whether a widow can be said to have acquired here interest in such property by inheritance. That difference was resolved by the Supreme Court in Potti Lakshmi Perumallu v. Potti Krishnavenamma, : 1SCR26 . In this case the Supreme Court confirmed the view taken by the majority of the High Courts that the interest conferred upon a widow under the Act is a new kind of interest though in character it is what is only known as Hindu Widow's estate and that though the widow does not by virtue of the interest given to her new law becomes a coparcener she being entitled to claim partition of the joint family properly is in the same position in which her deceased husband would have been in the matter of exercise of that right. Thus her interest is a fluctuating one and is liable to increase or decrease according as there are deaths in or additions to the members of the family or according as there are accretions to or diminutions of the property. In a still more recent decision in Satrughan Isser v. Sabujpari, : 1SCR7 , the Supreme Court further explained the nature and extent of right vested in the widow by the Act. In that case the widow of a coparcener had instituted a suit against collaterals of her husband for a decree for partition and separate possession of her husband's share. After the filing of the suit the plaintiff died and her two daughters were brought on record as her heirs and the question arose about the right of coparceners qua widow's interest in the joint family after her death. The Supreme Court considered the principal characteristics of Hindu Coparcenary and of the Hindu Woman's estate and the fundamental changes made by the Act in those concepts and in view of that repelled the argument of the defendants-coparceners that their right to take her (widow's) interest on determination of the widow's interest survived even after her interest had become definite because of her claim for partition and held that the Act gave a widow same power to claim partition as a male owner has and, therefore there was a partition of joint status by reason of the widow original plaintiff having filed the suit and her share had become definite and the daughters as her heirs had a right to recover the widow's said share in joint family property. In the present case the dispute is about plaintiff widow's right qua sole surviving coparceners' interest in the joint family property after his death and thus the question arises whether the interest of Ramchandra, the sole surviving coparcener had become definite by partition and if not, whether he as sole male member had the power to dispose of suit property by Will.
6. Now, in the present case there was on coparcenary between Ramchandra and the plaintiff, and as no female member can become member of the coparcenary Ramchandra was the sole surviving coparcener; thus he had the right to manage the suit property; still his rights as the sole-surviving coparcener in the coparcenary property were not absolute as they would have been if the Act of 1937 had not invested the plaintiff with an interest in suit property and it would not have been competent to him to make a gift of the joint family property as if he was the absolute owner thereof - See Shivappa Laxman v. Yellawa Shivappa, : AIR1954Bom47 similarly, he would not have the right to make a will of the coparcenary property. (see the above cited Supreme Court case of Potti Lakshmi, : 1SCR26 ). Further, plaintiff's and Ramchandra's interests in the suit property were liable to fluctuate till the same came to be defined by partition. And it was open to either of them to divide the joint nature of the suit property by declaring an intention to partition the same whereupon their interest in the suit property would have been defined. But it is common ground in the instant case that there was no such severance of status between the plaintiff and Ramchandra during the latter's life time. Thus the suit property continued to retain the incident of coparcenary property. Therefore, if the plaintiff had died during Ramchandra's life her husband's interest which had vested in her would have devolved by survivorship on Ramchandra. However, Ramchandra died without having asked for or indicating his intention to sever his joint status with the plaintiff qua suit property. Since the interest of the plaintiff in the coparcenary property as widow of her husband was liable to fluctuate by births and deaths of members in the joint family, it follows that on the death of Ramchandra it would be increased and that of Ramchandra would merge in her interest in the joint family property.
7. No doubt Ramchandra died leaving a Will whereby he bequeathed the suit property to defendants Nos. 1 and 2. It is therefore, urged for the appellants that at any rate Ramchandra should be considered to have severed his status by making the said will and therefore he should be held to have one half share in the suit property and therefore the said bequests considered valid to the extent of his one-half share. It is not possible to accede to this argument. Now on the above cited case of Potti Lakshmi the Supreme Court held that where there is nothing in the will executed by a member of a Hindu coparcenary to unmistakably show that the intention of the testator was to separate from the joint family the will does not effect severance of status. In the present case it is material to note that Ramchandra did not bequeath his one half share therein to which he would have been entitled if he claimed partition, but he bequeathed the entire suit property as if the same belonged to him exclusively. Thus there is nothing in the will, nor my attention is invited to any other circumstance on record, to indicate that Ramchandra severed or wanted to sever his status qua the suit property. Thus there is no merit in appellants contention that the said bequests in favour of defendants Nos. 1 and 2 under the will should be upheld at any rate to the extent of Ramchandra's one half share in the suit property. As Ramchandra did not during his lifetime nor by his will sever his status in respect of joint family property his share therein was not defined, and, therefore, on his death it merged in plaintiff's interest and she is entitled to the same.
8. In the result the appeal fails and is dismissed with costs.
9. Appeal dismissed.