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Shripati Madhav Dure Vs. Fulabai Balaji Dure - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 189 of 1975
Judge
Reported inAIR1981Bom224
ActsHindu Women's Rights to Property Act, 1937 - Sections 1(2)
AppellantShripati Madhav Dure
RespondentFulabai Balaji Dure
Appellant AdvocateK.Y. Mandlik, Adv.
Respondent AdvocateV.M. Thorat, Adv. for;B.N. Deshmukh, Adv.
Excerpt:
..... - the act was amended to give better right to women in respect of the property. therefore, the very intention of the enactment was to confer better rights upon hindu women in respect of the properties......of law involved in this second appeal relates to the interpretation of the provisions of the hindu women's rights to property act, 1937. according to the plaintiff she is a member of coparcenary of her deceased husband and the defendant, brother of her husband, her husband possessed certain land in village irale, which was then situated within tha territory of the state of hyderabad. the joint family also owned and possessed some landed property at village undegaon in taluka barsi, which was then situated in the territory of british india. fulabai's husband died in the year 1945, i. e., after coming into operation of the hindu women's rights to property act, 1937, according to her, on the death of her husband, she was entitled to a share in the coparcenary property. after hearing.....
Judgment:

1. The only substantial question of law involved in this second appeal relates to the interpretation of the provisions of the Hindu Women's Rights to Property Act, 1937. According to the plaintiff she is a member of coparcenary of her deceased husband and the defendant, brother of her husband, Her husband possessed certain land in village Irale, which was then situated within tha territory of the State of Hyderabad. The joint family also owned and possessed some landed property at village Undegaon in taluka Barsi, which was then situated in the territory of British India. Fulabai's husband died in the year 1945, i. e., after coming into operation of the Hindu Women's Rights to Property Act, 1937, According to her, on the death of her husband, she was entitled to a share in the coparcenary property. After hearing both sides, the learned Judge of the trial Court found that she was entitled to a maintenance allowance at the rate of Rs. 50/- per month. However, her suit for partition and possession of the suit property was dismissed.

2. Being aggrieved by this judgment and decree granting her only maintenance, she filed an appeal, which was heard and decided by the learned Extra Assistant Judge, Sholapur vide his judgment dated 10th of October 1974, The learned Judge partly allowed the appeal and modified the decree passed by the trial Court by holding that the plaintiff Fulabai is entitled to partition and separate possession of her husband's half share in the agricultural land situated at village Undegaon in taluka Barsi. It is this part of the appellate judgment which is challenged in this second appeal.

3. Shri Mandlik, learned counsel appearing for the appellant contended before me that domicile of coparcenary was village Irale, which was then within the territory of the State of Hyderabad (State of Nizam) and which later on in the year 1949, was merged within the Union of India. The Hindu Women's Rights to Property Act, 1937 was not applicable to the State of Hyderabad. Therefore after the death of Buwaji Dure, plaintiff's husband, she was not entitled to any share in the property situated at village Undegaon also, since the plaintiff and the joint family were governed -by the law as in force then in Nizam State.

4. It is not possible for me to accept this contention for the obvious reason. It is an admitted position that the property with which we are concerned in this second appeal is situated at village Undegaon in taluka Barsi, district Solapur, It is also not disputed that to this area viz., Solapur district the provisions of Hindu Women's Rights to Property Act, 1937, were duly extended. The Act was amended to give better right to women in respect of the property. Therefore, the very intention of the enactment was to confer better rights upon Hindu women in respect of the properties. Though it is laid down by Section 1(2) of the Act that the Act extends to the whole of India, except Part B States, it only meant that the properties situated in Part B States are excluded from its| operation and not the properties situated within the areas to which the Act applied and belonging to Hindus, domiciled in Part 'B' States. The Act as its Preamble shows is a remedial Act and ought to receive beneficial construction. It applies to the properties of Hindus situated in the area to which the Act applies. As rightly held by the Calcutta High Court in Ratan Kumari v. Sunder Lal, : AIR1959Cal787 :

'What the statute requires is that the property must be situated within the specified territory and that the husband must be a Hindu at the time of his death. Whether he is a resident within or outside or whether he had domicile within or outside at the time of his death is wholly immaterial and irrelevant for the purpose of determining the widow's right'.

In this view of the matter there is no substance in this appeal. The appeal fails and is dismissed with costs.

5. Appeal dismissed.


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