1. This appeal raises a short question under the provisions of the Hindu Women's Rights to Property Act 18 of 1937. The provisions of this Act have been construed judicially on several occasions and it has been frequently pointed out that in administering the provisions of this Act, Courts have to face some anomalous positions. The difficulty of intorducing reforms in Hindu law by piecemeal legislation has been very eloquently illustrated by the anomalies to which attention has been drawn judicially while construing the provisions of this Act. The point which we have to decide in the present appeal is an additional illustration on the same subject.
2. The point arises in this way. The present appeal is the result of a partition suit between Gan-pati and his three sons Shyamu, Shankar and Vishwa-nath. Ganpati had two wives Saguna and Laxmi. The present suit has been filed by Shyamu, plaintiff 1, Shankar, plaintiff 2, & their mother Saguna plaintiff 3. The father Ganpati, defendant 1, his other wife Laxmi, defendant 10, and Vishwanath. the son of Laxmi by Ganpati, defendant 2, were the contesting defendants to this suit.
Ganpati had another son by Laxmi and his name is Balakrishna. He was impleaded as defendant 3 to this suit. He has, however, left the family by adoption and is .no lodger interested in making a claim for a share in the partition of the properties of his natural family. His presence on the record is, however, justified by the fact that he claims to be an alienee of some of the properties in suit from his father Ganpati.
In this partition suit, the principal point of dispute between the parties was as to the quantum of share of each one of them and this dispute has been rendered more complicated by reason of the fact that two deaths have occurred in the family after the suit was instituted. The father Ganpati died pending the suit and. Saguna, his elder wife, died pending the present appeal. When Ganpati died, it became necessary to decide how the claims of Saguna and Laxmi should be determined in respect of the properties of the family.
These two ladies occupied two different capacities. They were the widows of Ganpati and as such they were entitled to claim a share in the properties of the family under the provisions of the Hindu Women's Rights to Property Act. They were also mothers and as such under the general provisions of the Hindu law they were entitled to demand a share when the sons in the family were claiming partition against each other. In adjusting the shares of all the parties to the present dispute in the light of the dual capacity held by the two widows in the family, the two Courts have differed. .
The trial Court held that the three sons were entitled to a one-fourth share each and the two widows to a one-eight share each. In other words, the trial Court took the view that the estate was originally divisible beween four claimants, the father and his three sons, and the share of the father would have to be divided amongst his two widows on his death. When the matter went in appeal, the lower appellate Court has held that the two plaintiffs would be entitled to a one-sixth share each in the property in suit.
In regard to Saguna, he has held that she would be entitled to a one-sixth share. No doubt to this one-sixth share must be added one-twelfth share in the property which had not been alienated by Ganpati. In other words, according to his view, the share of the two widows happens to be larger than the share of each one of the three sons in the family. Defendant 2 was given by him one-sixth share and defendant 10, the mother of defendant 2, was likewise given a one-sixth share and to this share was added a one-twelfth share in the properties not alienated by defendant 1. The correctness of this view is challenged before us by Mr. Shanbhag and that raises the question as to the effect of the material provisions of the Hindu Women's Rights to Property Act.
3. it would be convenient to consider the provisions of this Act by themselves before attempting to correlate them with the rights which the two widows may claim as mothers under the general provisions of the Hindu law. Section 2 of the Act pro-des that, notwithstanding any rule of Hindu law or custom to the contrary, the provisions of Section 3 shall apply where a Hindu dies intestate. In other words,it would be reasonable to hold that, wherever the provisions of Section 3 of the Act apply, any other rule of Hindu law which would otherwise have applied would be inapplicable.
If a case falls under Section 3 of the Act, it must be governed by the provisions of Section 3, and if there is anything else to the contrary in any rule of Hindu law or custom, the said rule or custom must be ignored as being superseded by the provisions of Section 3. The present case falls under Section 3, Sub-section (2), of the Act. This provision deals with cases where a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies and leaves behind him at his death an interest in a Hindu joint family property and it says that in such a case his widow shall, subject tp the provisions of Sub-section (3), have in the property the same interest as he himself had.
The saving made by the provisions of Sub-section (3) merely amounts to the provisions that the estate which devolves upon a Hindu widow under tho earlier provisions of Section 3 should be regarded as a Hindu woman's estate and not as an absolute estate. This again is subject to the further proviso that in respect of this Hindu woman's estate, the widow shall have the same right of claiming partition as a inale owner. If the effect of reading Ss. 2 and 3 together is that in all cases which fall under Section 3 the provisions of Section 3 alone apply and no other provisions of the general Hindu law can be invoked, then it would not be difficult to hold that on the death oS Ganpati, his two widows Saguna and Laxmi wera entitled to claim their rights -under the provisions of Section 3 of the Act and not under any other provision of Hindu law.
On that view, they would be entitled between them to the share to which Ganpati was entitled and Ganpati was obviously entitled to a one-fourth share in the properties in suit, so that on his death his two widows Saguna and Laxmi would be entitled to a half of Ganpati's share which means each ot them would get a one-eighth share in the suit properties.
4. This position, however, must now be correlated with the effect of the other provisions of the Hindu Law which are also relevant. At the time when Ganpati died, a suit was pending between the parties and a decree for partition was ultimately passed in this suit. That means the status of joint-ness by which the members of the family were bound before the institution of the suit came to be terminated at the date when the suit was filed. It has been found by both the Courts below that though in a sense the joint status of the family was determined as between the plaintiffs on the one hand and the defendants on the other, Ganpati continued to remain joint with his second wife Laxmi and their son Vishwanath.
Even so, in a suit for partition of this character, Saguna and Laxmi as mothers would have been entitled to claim a share in their capacity as mothers. That is the reason why the lower appellate Court was disposed to take the view that the death of Ganpati should, if at all, augment the shares of Saguna and Laxmi and should not diminish their shares. Saguna and Laxmi were in the present suit for partition entitled to claim a share in their rights as mothers and to the share to which they, were en-titled as mothers must be added the share that accrued to them on Ganpati's death in their capacity as the widows of Ganpati.
Prima facie this view docs appear to be attractive. But, it would he noticed that the result of giving effect to this view is to give to the two ladies in the family respective shares which are larger in content than the shares to which the sons are found entitled and the question for our decision is whether this can be said to be the result of the pendency of the suit for partition between the members of this family.
5. The decision of this question naturally takes us to the consideration of another aspect of the matter and that is the nature of the rights which the mothers are entitled to obtain at a partition between their sons and the time when the said rights take effect Students of Hindu law are familiar with the anomaly which has resulted from the view taken by the Privy Council on the question of the construction of the word 'stri-dhana'. The word 'stridhana' which is described and defined both by Manu and Yajnavalkya was very liberally construed by Mitakshara and the author of Mitakshara thought that he was justified in putting the said liberal construction on this word by reason of the use of the word 'adya' which ho interpreted as including property coming to the female from Other sources.
Mitakshara resisted the suggestion that the word 'stridhana' must be construed in a technical sense. Vijnanesvara, the enlightened author of Mitakshara, was inclined to 'construe the said word in its literal sense. The Privy Council, however, were not prepared to accept this construction of the word 'stridhana' with the result that the whole of Vijnanesvara's expansion of the word 'stridhana' has gone by the board in -- 'Debi Mangad Prasad Singh v. Mabadeo Prasad Singh' 39 Ind App 121, their Lordships of the Privy Council held that the immovable property obtained by a Hindu widow on partition of. the joint family property is under the Mitakshara law not her 'stridhana' in such sense that on her death it passes to her 'stridhana' heirs, but reverts on her death to the next heirs of her husband in the absence of express agreement amongst the co-sharers to the contrary.
Lord Robson who delivered the judgment of the Board considered the provisions contained in Yajn-yavalkya and Mamismriti on the topic of 'stridhatia' in the light of the interpretation put upon the said word by Mitakshara and he held that the original texts did not seem to justify the expansion made by Vijnanesvara while interpreting the said word. Since this decision was pronounced in 1911, Courts in India have naturally adopted the same view.
The result is that in considering the claims made by a Hindu mother for a share at the time when a partition takes place between her sons, she must be, and has been, regarded as making a claim substantially for her maintenance and not a claim for inheritance properly so-called. That is the first point which has to be borne in mind 'in dealing with the question raised before us in the present appeal.
6. The second point which must be considered is in regard to the time from which the property allotted to a Hindu mother, may be by way of maintenance, vests in her. On this point again, there is a decision of the Privy Council in -- Pratapmull Agarwalla v. Dhanbati Bibi', (B), which shows that under the Mitakshara law when the family estate is divided, a wife or mother is entitled to a share, but is not recognised as the owner oF such share until the division of the property is actually made, as she has no pre-existing right in the estate except a right of maintenance.
The same view had been taken by this Court in -- 'Raoji Bhikaji v. Anant Laxman', : AIR1918Bom175 (C). It was urged before Mr. Justice Batchelor and Mr. Justice Shah that the word used in the original text was Vibhaga' & this word need not necessarily import the requirement of an actual division by metes and bounds. Cesser in status and notional division resulting from it might well be covered by the said word Vibhaga*. This argument was rejected and it was held that the share which is allotted to a Hindu wife or mother in a partition suit can be said to vest in her only after the actual partition is effected.
The fact that a suit for partition has been filed would make no difference to this position, nor would the consideration that a preliminary decree has been passed woulti affect the position. The test always must be: Has the decree declaring the share of the wife or the mother been given effect to? Has partition been actually effected? if the answer to these questions is in the affirmative, then the female concerned can claim to be the owner of the property and the property can be deemed to nave vested in her in law. If the answer to these questions is in the negative, then the right determined by the suit and even declared by the decree continues inchoate and it cannot be claimed by the female that such a right has vested in her.
If this be the true position under the general provisions of the Hindu law, then it is not difficult to reconcile this position with the provisions of the Hindu Women's Rights to Property Act. In the present case, Ganpati died pending the suit and, though as between the male members of the family . the joint status of the family must be regarded as determined from the date of the institution of the suit, that docs not avail Saguna and Laxmi because whatever share may have been allotted to them in the present partition suit cannot be said to have vested in them because the said shares were not actually separated from the property of the family and actual partition by metes and bounds had not been made.
The question of applying the provisions of the Hindu Women's Rights to Property Act arose at a stage when the rights accruing to Saguna and Laxmi in their capacity as mpthers were in this inchoate form and had not materialised into legal rights at all. If these rights had vested in them as a result of the actual partition made between the members of this family and then Ganpati had died, different considerations might perhaps have arisen, Before those rights could, however, vest in the two widows, Ganpati died and the widows are, therefore, driven to claim the benefit of the provisions of the Hindu Women's Rights to Property Act.
7. in the present ease, it is perfectly true that the result of applying these provisions is to reduce their share, but that cannot be avoided. It may bo urged that the Hindu Women's Rights to Property Act has been enacted for the purpose of giving better rights to women in respect of property and the result in the present appeal shows that in cases like the one with which we are dealing, the rights of women are not bettered at all; on the contrary, they have been .rendered worse. But, on the other hand, Legislature may well have thought that it would he inadvisable to confer upon widows rights higher than those of sons themselves, and if we were to assign to the widows their shares by reference to both their characters and capacities, it would obviously mean . that each one of them would get a share larger than the one to which the son would be entitled.
That indeed is the result of the decree which has been passed by the lower appellat Court in the present case. It is no doubt an anomalous position, but such anomalous positions can be avoided only when and if the task of reforming the Hindu law is undertaken by codifying the whole of the Hindu law together. When attempts are made to niake reforms in personal law like the Hindu law by piecemeal legislation, such anomalies are sometimes inevitable, because, in enacting a specific Act dealing with a specific part of Hindu law, it is not always easy to integrate the said provisions with the other provisions of the Hindu law and to anticipate what the effect of the new enactment would be on the remaining structure of the Hindu law.
That, however, is a matter for the Legislature to consider. Under the provisions of Sections 2 and 9 of the Act, we do not see how we can entertain the claim made by the widows for a double share, if the claim can he so described. At the time when the matter is being decided, Ganpati is dead and the only capacity in which Saguna and Laxmi could claim a' share would be that they are widows of Ganpati. Their rights as mothers notwithstanding, they would be given a share to which they would be entitled under Section 3, Sub-section (2), of the Act.
Therefore, in our opinion, whilst Saguna was alive, the true position was that the three brothers between themselves would have each gob a one-fourth share & the two mothers between themselves would have got a one-fourth share. Indeed this share could have been claimed by the two widows even if a suit for partition was not pending between the sons themselves; that is a right which is specifically conferred upon them by the provisions of Section 3, Sub-section (3).
Now, that Saguna has died, it is not seriously disputed before us that her shave, which is one-eighth, must devolve upon her co-widow Laxmi. In the result, Laxmi would now be given a one-fourth share. I have already mentioned that despite the institution of the present suit, Gaupati continued to remain joint with his wife Laxmi and their son Vishwanath. That is to say, the two plaintiffs and their mother Saguna divided and separated from Ganpati, his wife Laxmi and their son Vishwanath.
Since there was a joint undivided Hindu family consisting of Ganpati, his wife Laxmi ancl their son Vishwanath the share which now devolves upon Laxmi as the widow of Ganpati would by survivorship, after her death, devolve upon defendant No. 2. This position has been fairly conceded before us by Mr. Paiulekav.
8. This point has been considered by Hose and Sen JJ. of the Nagpur High Court in -- 'Bhiwra v. Remika', AIR 1952 Nag 215. It appears that Mr. Justice Shah before whom this appeal was argued in the first instance was disposed to take the view that some of the observations made in the judgment delivered in this case were open to doubt. Mr. Justice Shah, however, referred tin's case to a Division Bench because the point raised was of some importance and was likely to be raised in many others cases. We do not propose to consider the several observations made by Mr. Justice Bose in delivering his judgment.
We would he content merely to observe that on the construction of Sections 2 and 3 of the Act, the learned Judges were apparently disposed to take the same view that we have taken.
9. in the result, the appeal must be partly allowed and the decree passed by the lower appellate Court must be varied. It should now be declared that plaintiff it plaintiff 2 and defendant 2 are each entitled to get a one-fourth share in tho property in suit. Defendant 10 would now be entitled to a one-fourth share because her one-eighth share is augmented by reason of the fact that Saguna has died pending this appeal and the one-eighth share which had vested in her now devolves upon Laxmi.
10. Mr. Virkar for the alienees has argued that in equity we should make an order directing that, so far as possible and without prejudice to the rights of the two plaintiffs, in allotting shares in the properties of the family, properties alienated by Ganpati should be allotted to the share of Laxmi. The object of making this prayer is obvious. Whether or not the alienation was made for legal necessity, the alienation would bind Ganpati's share and the said share in the hands of the widow would ba equally bound by the said alienations.
We accede to this request made by Mr. Virkar. This direction will apply to alienations covered by documents Exs. 97, 98 and 99. This direction need not, however, apply to the alienations made by Ganpati in favour of defendant No. 11 (Ex. 145) because this alienation has been found by both the Courts below to be binding on the whole of the family. Mr. Vivkar has further contended that the same order must be passed in respect of the share of defendant 2.
Mr. Virkar points out that a direction in that behalf bad been issued by the learned trial Judge in his decree and no, objection has been raised against the said direction on behalf of defendant 2 either before the lower appellate Court or before us in the present appeal. It is true that the alienations covered by Exs. 97, 98 and 99 are held to be not binding on the plaintiffs, but we do not see how we can make any modification in the order passed by the learned Judge in respect of the share of defendant 2 when the said order has not been challenged on his behalf.
11. We would, therefore, direct that as far as possible tho properties covered by Exs. 97, 98 and 99 should be allotted to the shares of defendants 2 and 10 without prejudice to the rights oE the plaintiffs. Mr. Shanbhag has invited us to confirm the order made by the learned District Judge when ha held that it should be made clear that the decree, which is being passed in the present litigation, shall not be construed as a decree effecting the partition between plaintiffs 1 and 2 'inter se'. We order accordingly.
12. in the circumstances of this case, we direct that the proper order to make as to costs would bathat the plaintiffs should pay the costs of defendant 11 throughout and the rest of the parties shouldbear their own costs throughout.
13. Appeal partly allowed.