M. Lal, J.
1. This second appeal filed by the plaintiffs arises out of a suit for declaration that the sale deed executed by Smt. Kishan Dei in favour of defendant No. 1 was null and void and the same be cancelled.
2. Plaintiff No. 1 is the husband's brother of Smt. Kishan Dei, while plaintiff No. 2 is the son of plaintiff. No. 1. Admittedly when Hukam Singh, husband of Smt. Kishan Dei, died in 1952, the family was joint and he died as a member of a joint Hindu family with his brother, Sukh Ram. Smt. Kishan Dei had executed a sale deed on 15-12-1956 in favour of defendant No. 1 in respect of half of the house which was ancestral and half of the shop which had been jointly purchased by Hukam Singh and plaintiff No. 1. This sale was said to be without consideration and without any legal necessity and Smt. Kishan Dei was said to have had no right to transfer the property. The plaintiffs had also alleged thatSmt. Kishan Dei had remarried, but this contention was repelled by both the courts below.
3. Defendant No. 1, who contested the suit, did not deny that the plaintiffs had half share in the house and the shop; but his case was that Hukam Singh was separate at the time of his death and that the sale deed had been executed for consideration and legal necessity. The sale deed was also said to be justified on the basis of Section 14 of the Hindu Succession Act, 1956.
4. Both the courts below have found that Hukam Singh died as a member of a joint Hindu family with the plaintiffs, that the property was joint family property, that the sale deed had been executed for consideration but there was no legal necessity. The lower appellate court further found that Smt. Kishan Dei had not remarried and that she being the full owner of the property under the provision of Section 14 of the Hindu Succession Act, the sale was a valid one and could not be challenged. It is against these findings that the present appeal has been filed.
5. It has been contended in this appeal by the appellants' learned counsel that Hukam Singh, husband of Smt. Kishan Dei, having died in a state of jointness in the year 1952, the property passed by survivorship to the plaintiffs and so Smt. Kishan Dei could not be deemed to possess any property either before or after the passing of the Hindu Succession Act and consequently she did not become an absolute owner and had no right of transfer. It is also his contention that there being no legal necessity for the sale, the same should have been cancelled and the plaintiffs' suit should have been decreed.
6. The learned counsel for the respondents has, on the other hand, contended that the word 'possessed' in Section 14 of the Hindu Succession Act does not mean actual physical possession but means any sort of possession, whether actual or constructive or possession in law. His submission is that Hukam Singh having died in 1952, his widow inherited the interest of Hukam Singh in the joint family property within the meaning of Section 3(2) of the Hindu Women's Rights to Property Act, and she was therefore possessed of the property and had every right to transfer the same.
7. I have heard the learned counsel for the parties. The point involved in the case depends upon the construction of Section 14 of the Hindu Succession Act. That section lays down in Sub-section (1) as follows:--
'(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.'
This section therefore overrides the existing conception of Hindu Law and declares that all property possessed by a Hindu female, whether acquired by her before or after the commencement of this Act, shall be held by her as full owner and not as a limited owner. The only limitation imposed on the absolute right of a female Hindu is that given in Sub-section (2), that is where the Hindu female acquires only a restricted right in the estate. For the application of Section 14 what isnecessary is that the property should be 'possessed' by a Hindu female, even when the succession opened earlier than the enforcement of the Act. The word 'possessed' in the section appears to refer to possession at the date when the Act came into force. The conception of possession is certainly not actual or physical possession as argued by the appellants' learned counsel but any sort of possession which is deemed possession in the eye of law, whether actual, constructive or otherwise.
The word 'possessed' has been the subject matter of controversy amongst the different High Courts; but whatever difficulty arises is likely to arise only in cases where the property has been acquired before the commencement of the Act and it has also been alienated by the widow. In cases where the property has been acquired after the commencement of the Act or where even though the property has been acquired before the commencement of the Act but has been alienated after the commencement of the Act, there should be no difficulty because in either case the property would be deemed to be held and possessed by the widow even though her husband died in a state of jointness.
It is not necessary to refer to any judicial pronouncements relating to the property acquired by a Hindu female before the commencement of the Act and also transferred by her before the commencement of the Hindu Succession Act, that is with respect to property which was not in her possession because of the alienation, because suffice it to say that this Court and the Patna High Court have taken the view that a widow, who acquired the property prior to the commencement of the Act and had also alienated it, was competent to do so and the reversioner could not challenge such an alienation because the interest of the female Hindu was enlarged into absolute interest. All other High Courts have taken a different view in the matter.
The present case, however, is one in which the widow acquired the property before the commencement of the Act but she made the alienation in 1956 after the commencement of the Hindu Succession Act and consequently she was evidently a person who was possessed of the property within the meaning of Section 14 of the Hindu Succession Act.
8. The learned counsel for the appellants contended that at the time when Hukam Singh, husband of Smt. Kishan Dei, died in 1952, the property passed by survivorship to the plaintiffs and so the widow could not be deemed to possess any property. This contention cannot be accepted because, as stated earlier, possession of the widow does not mean actual physical possession. She further inherited the interest of her husband in the property under Section 3 (2) of the Hindu Women's Rights to Property Act.
It cannot be accepted that her interest in the joint property or her possession of the joint property could only be deemed to materialise when she exercised the right of partition under Section 3 (3) of the said Act. When a Hindu female has been given the same interest in the joint family property as her husband had and a further rightof claiming a partition of her husband's share, it obviously means not merely getting an interest in the property but recognition of her right to possess the share of her husband in the family property. A Hindu widow, therefore, who acquired the property from her husband before the commencement! of the Act in a joint Hindu family must be deemed to possess the property within the meaning of Section 14 of the Hindu Succession Act.
9. The matter may be looked at from another angle, and it is that under Section 14 properties acquired by a Hindu widow before or after the commencement of the Act have been placed in the same category inasmuch as such (properties shall be held by her as full owner. Section 6 of the Hindu Succession Act, which relates to devolution of interest after the commencement of the Act, lays down in Explanation I as follows:
'For the purposes of this 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.'
This explanation introduces the concept of a notional partition or a statutory fiction which treats an imaginary state of affairs to exist. It I this legal fiction of notional partition embodied in Section 6 is applied to Section 14 on the ground that properties acquired before or after the commencement of the Act have been placed in the same category, then under the legal fiction we have to treat the acquisition of property before commencement of the Act, on the same footing as subsequent; acquisition of the property, that is properties acquired before or after the commencement of the Hindu Succession Act.
For all these reasons the contention of the appellants' learned counsel cannot be accepted that the widow should not be deemed to possess the property because of the existence of a joint Hindu family at the time of the death of her husband or because of the applicability of the principle of survivorship. In such cases possession of the widow has to be upheld in law and she must be deemed to have become full owner of the property though acquired before the commencement of the Act. She being the full owner on the date Of the transfer she had every right to transfer her share. No question of legal necessity arises in such a case. The plaintiffs were rightly nonsuited.
10. The appeal therefore fails and is hereby dismissed with costs.
11. Leave to file special appeal is refused.