1. This is an appeal against the appellate judgment dated January 25, 1965 of the learned District Judge, Ahmednagar. The appeal has been filed by the original defendants Nos. 1 and 6. Respondent No. 1 is the original plaintiff. Defendants Nos. 2 to 5 were joined in the appeal as respondents Nos. 2 to 5, but their names have been struck off on account of non-payment of Bhatta.
2. The facts leading to this litigation are that one Pandu died on October 23, 1944. He owned four agricultural lands and two houses in Village Vanjoli, Taluka Newasa, District Ahmednagar. The houses bear Nos. 150 and 151. In Survey Nos. 109/2 and 109/3 Pandu owned a half share. He owned Survey Nos. 110 and 195/3 wholly. Pandu left him surviving at his death his widow Rahibai and two sons Kesu, who is defendant No. 1, and Dhondiba, who died in May 1945. The original defendants Nos. 2 to 6 are respondents Nos. 2 to 5 and appellant No. 2 respectively in this appeal and are the sons of Kesu. They derived title under Kesu and so we are not concerned with them. Dhondiba left him surviving his widow Harnabai. She died on May 26, 1960, leaving her surviving her daughter Indubai, the plaintiff. Indubai was born on October 5, 1945. She was a posthumous child of her father. Rahibai, the widow of Pandu, died sometime in 1957,
3. On November 22, 1962, Indubai filed in the Court of the learned Joint Civil Judge, Senior Division, Ahmednagar, the suit from which the present appeal arises for partition and separate possession of a half share in the property left by Pandu. According to her, in 1941 Pandu had effected a partition giving half share in the property mentioned above to each of his sons Kesu and Dhondiba. He also put them in separate possession of those half shares. According to the plaintiff, after May 1945, that is after the death of the plaintiff's father, Harnabai came into possession of the half share of her husband. She also averred that in 1955 Harnabai left the village of Vanjoli and went and resided with her parents in another village and that thereupon in the same year defendant No. 1, Kesu, forcibly took possession of the lands of Harnabai, destroyed the Bands and also got his own name entered in the land records. The plaintiff claimed to be the sole heir of Dhondiba and claimed his half share in the property.
4. We are concerned with the defence of defendant No. 1 only, because defendants Nos. 2 to 6 derive title under him. Defendant No. 1 contended that the plaintiff was not at all the daughter of Dhondiba. He denied the alleged partition of 1941 and claimed that after the death of Dhondiba in 1945, he had been in possession and in adverse possession of the property claimed by the plaintiff. He, therefore, contended that the suit was barred by the law of Limitation. There were other contentions with regard to defendant No. 1 spending certain amounts on the reconstruction of the houses or on digging a well in Survey No. 110, but we are not concerned with those contentions.
5. The trial Court held that the plaintiff was the daughter of Dhondiba. It held the partition of 1941 proved. It also held that defendant No. 1 had not taken possession of the share of Dhondiba until 1955 and that there was no adverse possession. In view of the fact that the trial Court held the partition proved, it decreed the suit and awarded to the plaintiff northern portions of the agricultural lands and a half share in the houses. Against the said decision, defendants Nos. 1 to 6 appealed to the District Court,
6. The District Court held the plaintiff to be the daughter of Dhondiba. It negatived the alleged partition of 1941 as well as the plea of adverse possession raised by defendant No. 1. The learned District Judge held that there had been no ouster of Harnabai and that the possession of defendant No. 1, if it had been there, was on behalf of the family. He held that on the coming into effect of the Hindu Succession Act, 1956 on June 17, 1956, Harnabai had become the full owner of the property inherited from her husband and that by virtue of the provisions of Section 15 of the said Act, the plaintiff had succeeded to the property of her mother Harnabai. The learned District Judge further held that as Rahibai, the widow of Pandu had died after the coming into effect of the Hindu Succession Act, 1956, she would become a full owner of a one-third interest in the property of Pandu along with her son Kesu and her daughter-in-law Harnabai, the widow of Dhondiba. The learned Judge, however, was of the view that on the death of Rahibai that one-third share would go in equal moieties to Kesu and the plaintiff and in the net result the plaintiff would be entitled to a half share in the estate of Pandu. He, therefore, confirmed the decree of the trial Court with certain minor alterations. Defendant No. 1 and defendant No. 6 have filed the present appeal against the said decision. We are, however, not concerned with Defendant No. 6 as he would derive title only under defendant No. 1.
7. Mr. Pendse, appearing for defendant No. 1, drew our attention to the provisions of the Hindu Women's Rights to Property Act, 1937. Under the provisions of Section 3(2) of the said Act, when a Hindu governed by the Mitakshara School of Hindu 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. Sub-section (3) provides that any interest devolving on a Hindu widow under the provisions of Section 8 of the said Act 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. He, therefore, submitted that Dhondiba having died in 1945, that is, prior to the coming into effect of the Hindu Succession Act, 1956, and he having been a co-parcener in a joint family with his brother Kesu, what Harnabai, the mother of the plaintiff, inherited from her husband was a fluctuating undivided share in the joint family property and in addition right to demand partition. The share of Harnabai would only be crystallised on her demanding the partition. He further contended that on the death of Harnabai in 1960 in accordance with Hindu law her share devolved on Kesu by right of survivorship as there had been no partition in the family. The plaintiff was therefore not entitled to succeed to her father Dhondiba. Our attention has been drawn to the case of Satrughan v. Sabujpari : 1SCR7 . The Supreme Court observes (p. 274) :
The Act (The Hindu Women's Rights to Property Act, 1937) seeks to make fundamental changes in the concept of a coparcenary and the rights of members of the family in coparcenary property. ... The Act in investing the widow of a member of a coparcenary with the interest which the member had at the time of his death has introduced changes which are alien to the structure of a coparcenary. The interest of the widow arises not by inheritance, nor by survivorship, but by statutory substitution,... By the Act certain antithetical concepts are sought to be reconciled. A widow of a coparcener is invested by the Act with the same interest which her husband had at the time of his death in the property of the coparcenary. She is thereby introduced into the coparcenary, and between the surviving coparceners of her husband and the widow so introduced, there arises community of interest and unity of possession. But the widow does not on that account become a coparcener : though invested with the same interest which her husband had in the property she does not acquire the right which her husband could have exercised over the interest of the other coparceners. Because of statutory substitution of her interest in the coparcenary property in place of her husband, the right which the other coparceners had under the Hindu Law of the Mitakshara school of taking that interest by the rule of survivorship remains suspended so long as that estate enures. But on the death of a coparcener there is no dissolution of the coparcenary so as to carve out a defined interact in favour of the widow in the coparcenary property. ... The interest acquired by her under Section 3(2) is subject to the restrictions on alienation which are inherent in her estate. She has still power to make her interest definite by making a demand for partition, as a mal? owner may. If the widow after being introduced into family to which her husband belonged does lot seek partition, on the termination of ever estate her interest will merge into the coparcenary property. But if she claims partition, she is severed from tile other members and her interest becomes a defined interest in the coparcenary property, and the right of the other coparceners to take that interest by survivorship will stand extinguished. If she dies after partition or her estate is otherwise determined, the interest in coparcenary property which has vested in her will devolvo upon the heirs of her husband.... The assumption that though the right vested in the widow by the Act is a right of property which may on demand for partition become separated from the coparcenary property, it is still liable to revert to the coparcenary on the determination of the widow's estate, does not give full effect to the statutory conferment upon the widow of 'the same right of claiming partition as a male owner.
8. In view of the Hindu Women's Rights to Property Act, 1937 and in the light of interpretation put upon it by the Supreme Court, we are of the view that notions of survivorship known to Hindu law cannot be applied to the interest of a Hindu widow acquired by statutory substitution in the place of her husband by virtue of the provisions of that Act. The interest of the widow is not liable to revert to the coparcenary on her death according to rules of survivorship. The contention of Mr. Pendse that on the death of Harnabai in 1960, her share devolved on Kesu by right of survivorship is not correct. This is more so after the coming into effect of the Hindu Succession Act, 1956.
9. The Hindu Succession Act, 1956 came into force with effect from June 17, 1956. Section 6 of the said Act provides that when a male Hindu dies after the commencement of the Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. The proviso to the said section states that if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under the Act and not by survivorship. Explanation 1 provides that for purposes of the section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. There is no doubt that a widow falls in class I of the the Schedule to the Act. Based on Section 6, Mr. Pendse argued that in case of death after 1956, when the Hindu Succession Act came into force, of a male Hindu there is a fiction of a partition of the property provided by Explanation 1, but there is no such fiction provided in case of the death of a female Hindu. He, therefore, contended that when Harnabai died in 1960, her interest devolved by survivorship on Kesu and his sons and not on the plaintiff who was her daughter, because in absence of a partition the daughter would not be entitled to succeed according to traditional Hindu law. We have, however, stated above that Harnabai did not succeed to her husband's estate, either by succession or by survivorship, but by statutory substitution. The proviso to Section 6 makes it absolutely clear that where the deceased male Hindu leaves him surviving a female relative specified in class I of the Schedule, the property devolves on her by testamentary or intestate succession under the Hindu Succession Act and not by survivorship. The survivorship is, therefore, expressly excluded by the Act. There would, therefore, be no question of the property inherited by Harnabai from her husband reverting to Kesu on the footing of survivorship. This is apart from the provisions of Sections 14 and 15 of the Hindu Succession Act.
10. Section 14(1) of the Hindu Succession Act provides that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. The Explanation to Sub-section (1) describes the modes of acquisition of property by a female Hindu and adds the words 'or in any other manner whatsoever'. The Explanation, therefore, makes it clear that whatever be the mode of acquisition of the property by the female Hindu and whether the acquisition is before the coming into effect of the Hindu Succession Act or thereafter, she becomes the full owner.
11. The legal position is that a female Hindu, who gets substituted in the place of her husband by virtue of the Hindu Women's Rights to Property Act, is 'possessed' of his property. In the case of Kotturuswami v. Veeravva : AIR1959SC577 , the Supreme Court has held that the word 'possessed' in Section 14 is used in abroad sense and in the context means the state of owning or having in one's hand or power and the words 'property possessed by a female Hindu' obviously mean that to come within the purview of the section the property must be in possession of the female concerned at the date of the commencement of the Hindu Succession Act. That possession might have been either actual or constructive or in any form recognised by law. A Division Bench of the Bombay High Court consisting of Patel and Wagie JJ. also held in the case of Indubai Pandhari v. Vyankati : AIR1966Bom64 , that in Section 14(1) of the Hindu Succession Act, 1956, the word 'possessed' means the state of 'owning and having a disposing power' i.e. a right in the property which is capable of enjoyment whenever the widow wills so to do. A Hindu widow who has interest in the joint family property which she got on her husband's death can be said to have possession of the property within the meaning of that phrase in Section 14(1) of the Hindu Succession Act, 1956. It is not necessary under that section that she should reduce her share to possession either by actual partition or even by asking for partition. It would, therefore, appear to us that when the Hindu Succession Act came into force, Harnabai was possessed of her husband's interest in the joint family property within the meaning of Section 14(1) of the Hindu Succession Act, and therefore became its full owner.
12. Mr. Pendse, however, contended that the case of Harnabai did not fall under Section 14(1), but fell under Section 14(2). Sub-section (2) of Section 14 provides that nothing contained in Sub-section (1) shall apply to any property acquired under an instrument. He contended that the Hindu Women's Rights to Property Act, 1937 was an instrument. Harnabai acquired her interest under that instrument and, therefore, Section 14(1) did not apply to the case of Harnabai. We have referred to Stroud's Judicial Dictionary and Law Lexicon published by the Madras Law Journal and we might state that broadly speaking an 'instrument' means a document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded. Normally speaking the word 'instrument' will not cover an Act of the Legislature, Section 3 of the Transfer of Property Act defines 'instrument' as a non-testamentary instrument. By a special definition in the Trustee Act, 1898, in England the word 'instrument' includes an Act of the Parliament, but there the word 'instrument' has been expressly So defined. In absence of such definition, we cannot extend the meaning of the word 'instrument' to include an Act of the Legislature. Section 8 of the General Clauses Act, 1897 refers to an enactment or an instrument. The word 'instrument' is therein so used as to exclude an enactment. In the case of Emperor v. Rayangouda Lingangouda (1944) 46 Bom. L.R. 495, a Division Bench of this Court observed that (p. 501) :.We find, generally speaking, that an 'instrument' is a writing usually importing a document of a formal legal kind, but that it does not include Acts of Parliament unless there is a statutory definition to that effect in any Act;...
We are, therefore, of the opinion that the case of Harnabai does not fall under Section 14(2) of the Hindu Succession Act, 1956, but falls under Section 14(1) of the Act and that she became a full owner of the interest of her husband in the property on the coming into effect of the Hindu Succession Act in place and stead of her deceased husband Dhondiba.
13. Mr. Pendse argued that if Harnabai became a. full owner in place and stead of her husband by right of survivorship, on her death her husband's share would revert to Kesu. We have already disposed of that point and held that Harnabai did not succeed to the estate of her husband in a limited way by survivorship but by a statutory substitution, similarly she became its full owner also by statute and the notion of survivorship cannot be imported into such devolution.
14. Coming to the right of the plaintiff to claim a half share in the estate which her mother inherited from her husband and her right to demand partition of that share by the suit from which the present appeal arises, Section 15(1) of the Hindu Succession Act provides that the property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16, firstly upon the sons and daughters and the husband. Section 16 provides the order of succession and the manner of distribution among the heirs of a female Hindu. It is not in dispute that if Section 15 applies, the plaintiff has succeeded to the interest of her mother. Mr. Pendse, however, argued that the word 'property' in Section 15 (/) would not cover a fluctuating and undefined share of Harnabai in the joint family property inherited by her from her husband. Her husband himself, being the member of a coparcenary, had only a fluctuating and undefined share in the joint family property. He, therefore, contended that Section 15 of the Hindu Succession Act would not apply. We are, however, of the view that although Dhondiba did not have a well defined share in the joint family property, he had an interest in the joint family property which was by itself property. After his death, a limited estate therein devolved on Harnabai. The limited estate became full ownership on the coming into effect of the Hindu Succession Act, 1956. There is, therefore, no substance in the contention that what Harnabai inherited was not property. If it was property by virtue of Sections 15 and 16, the plaintiff succeeded to the same. Rules of succession laid down in Sections 15 and 16 are special rules of succession and are a departure from the traditional Hindu law.
15. Mr. Pendse also contended that, in any event, the plaintiff, being a female, was not entitled to claim partition and, therefore, the suit for partition by her was not maintainable. We have, however, seen that the Hindu Women's Rights to Property Act, 1937, conferred on Harnabai not only the interest of her husband in the joint family property as a limited estate of which she became a full owner by virtue of Section 14 of the Hindu Succession Act, but the Hindu Women's Rights to Property Act also conferred on her a right to demand partition. On her death Harnabai was not only possessed of her husband's right in the joint family property, but she was also possessed of a right to demand partition which was also property. This is what the plaintiff succeeded to and by virtue of such succession she was entitled to demand partition from Kesu and his sons. The right to demand partition is also an incident of full ownership of a share to which the plaintiff succeeded on her mother's death. Mr. Pendse also argued that if Dhondiba had died after 1956, by virtue of Section 6 of the Hindu Succession Act Harnabai would have succeeded to a well defined share, but as Dhondiba died before 1956 Harnabai succeeded to the fluctuating share of her husband and unless she had demanded a partition in her life-time that share would not have been defined. This may be so, but we are concerned with the share that the plaintiff would be entitled to at the time of her filing the suit. There is no allegation that any fluctuation has in fact taken place in her share. Her father and mother were dead. She had no brothers. Any increase or decrease in the family of Kesu would not affect her share. We are concerned with defining the share of the plaintiff at the date of the institution of the suit. The Supreme Court has held in the case of Lakshmi Perumallu v. Krishnavenamma : 1SCR26 , that the quantum or interest to which a Hindu widow is entitled under Section 3(2) of the Hindu Women's Rights to Property Act, 1987 is to be determined as on the date on which she seeks to enforce partition under Sub-section (3) of Section 3. Similarly, the plaintiff having succeeded to the interest of her mother, the quantum or interest to which she would be entitled will have to be determined as on the date of the suit.
16. Mr. Pendse also argued that prior to the coming into force of the Hindu Succession Act, 1956, Kesu had acquired a vested right in what Harnabai inherited. That vested right was that on the death of Harnabai, by virtue of survivorship her interest would revert to Kesu. We have, however, already shown that the notions of survivorship do not arise in respect of property inherited by a female under the Hindu Women's Rights to Property Act, 1937. There is, therefore, no substance in that argument.
17. In the plaint the plaintiff has claimed that she was entitled to succeed to her father. Mr. Pendse contended that the learned District Judge had passed a decree, in her favour on the basis of her succeeding to her mother's share and that defendant No. 1 had had no opportunity to meet the case on that footing. The evidence has been led in the trial Court, and on the footing that a partition in 1941 had been proved, the trial Court decreed that Harnabai had succeeded to her husband and the plaintiff had succeeded to her mother Harnabai. In the District Court defendant No. 1 had ample opportunity of meeting the plaintiff's case that she had succeeded to her mother. Defendant No. 1 made no application to the District Court for permission to lead further evidence and did not apply for framing any additional issues. He met the case on the footing of which the trial Court had decreed the suit. There is, therefore, no question of defendant No. 1 not having had an opportunity to meet the case on that footing. The Courts are to decide the rights of parties on the facts established. There is no material variance between the pleading and what has been proved in this case. The plaintiff has succeeded to her father's interest, not directly but through her mother.
18. Mr. Pendse also argued that the provisions of the Hindu Succession Act, 1956 had not been pleaded and in absence of such pleading, no relief could be granted on the basis of the provisions of that Act. We are, however, of the view that what has to be pleaded are facts and not the law. If the effect of law is set out, there is no harm, but no complaint can be made that no reference had been made to a particular provision of law. There is, therefore, no substance in this contention also.
19. There is one more contention of Mr. Pendse which has considerable substance-The learned District Judge came to the conclusion that the property of Pandu had to be divided into three shares between Pandu's widow Rahibai, who died sometime in 1957, and Kesu and the plaintiff, who was the daughter of Dhondiba, the son of Pandu. The learned District Judge came to the conclusion that on the death of Rahibai in 1957, her share devolved in equal shares on Kesu and the plaintiff and, therefore, the net result was that the plaintiff became entitled to half share in the estate of Pandu. Mr. Pendse contended that the succession to the estate of Rahibai was absolutely outside the pleadings. This was not even in the judgment of the learned trial Judge. He contended that if the plaintiff had claimed to succeed to Rahibai, defendant No. 1 might have contended that Rahibai had by a testamentary or non-testamentary disposition left her share to defendant No. 1. Defendant No. 1 was deprived of the opportunity to meet this case. We agree with the contention taken by Mr. Pendse and on that footing we have come to the conclusion that the plaintiff was entitled to a one-third share in the estate of Pandu. Defendant No. 1 was also entitled to one-third share in the estate of Pandu. With regard to the one-third share of Rahibai, the plaintiff would be at liberty to make a demand or to file a suit for partition, if so advised. We would, therefore, vary the decree of the lower appellate Court to the extent of awarding to the plaintiff a one-third share in the estate of Pandu instead of a half share.
20. The order of the learned District Judge will, therefore, be varied to this extent that it is declared that the plaintiff has a one-sixth share in Survey Nos. 109/2 and 109/3 and one-third share in Survey Nos. 110 and 195/8 and in the two open sites below the structures in houses bearing Nos. 150 and 151. The remaining part of the order will stand and the order as so varied shall stand confirmed. The mesne profits will also be computed on the basis of the share awarded to the plaintiff under this judgment. In the circumstances of the case, each party shall bear its own costs throughout.