J.N. Takru, J.
1. This is a plaintiffs appeal arising out of a suit for possession and for recovery of Rs. 337-8-0 as mesne profits.
2. The case first came up for hearing before a learned Single Judge of this Court and as in his opinion it raised an important question of law on which there was a divergence of judicial opinion he referred it to a Division Bench.
3. The facts giving rise to the aforesaid appeal are as fallows :
The plaintiff is the widow of one Sudama who died in 1935, as an unseparated member of a joint Hindu family consisting of himself, his father Ra-ghunath and the defendants. In 1937 Raghunath separated from the defendants and became the sole surviving co-parcener qua the properties which fell to his lot in that partition. He died on 17-11-1942, leaving the plaintiff, the widow of his predeceased son, as the sole representative of his branch of the family.
On 26-9-1945 the defendants succeeded in obtaining mutation in respect of Raghunath's properties from the Revenue Court and hence the present suit by the widowed daughter-in-law of Raghunath. The case of the plaintiff was that as the properly left by Raghunath was his 'separate property' within the meaning of Section 3(1) of the Hindu Women's Rights to Property Act, 1937, and as she was his only heir being the widow of his predeceased son she was entitled to all that property under the First Proviso to that section. The defendants who are the son and grandson of Ram Roop, a brother of Raghunath, raised several pleas in defence.
It was contended (1) that the plaintiff was not the widow of Sudama, the real widow being one Manthrana, who had become mad and whose whereabouts were not known, (2) that there was no partition between the defendants and Raghunath and that they had always remained joint and (3) that the property in suit was the ancestral property of the joint Hindu family to which the defendants and Raghunath belonged and as such the defendants succeeded to it by the rule of survivorship.
4. The trial court decreed the plaintiff's suit but on appeal the learned Civil Judge reversed that decree and dismissed the suit. Both the courts found in favour of the plaintiff on the questions of fact involved in the case but differed on their interpretation of the expression 'separate property' used in Section 3 (1) of the Hindu Women's Rights to Property Act, 1937.
5. Accordingly the only point which was very vehemently canvassed before us was as to the interpretation of the expression 'separate property' used in Section 3(1) of the Hindu Women's Rights to Property Act, 1937. In order therefore to appreciate the rival contentions a reference to Section 3, of the Hindu Women's Rights to Property Act is necessary. That section runs thus :
3 (1). When a Hindu governed by the Dayabhaga School of Hindu law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow or it there is more than one widow all his widows together, shall, subject to the provisions of Sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son:
Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son;
Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.
(2) When a Hindu governed by any school of Hindu law other than the Dayabhaga School or by customary 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.
(3) Any interest devolving on a Hindu widow under the provisions of this section shall be 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.
In legal parlance the expression 'separate property' used in connection with a Hindu intestate can mean one of three things. It may mean (1) 'self-acquired' property, in which case the emphasis is on the absolute power of disposition which the intestate possessed over that property, or (2) it may mean property which he got as his share on partition of joint family property, or (3) it may mean property which he held as a sole surviving coparcener.
In the latter two cases the emphasis is on the exclusive possession and enjoyment of the property by an intestate at a given point of time and has no reference to the nature of the power of disposition which he might have possessed over it. In what precise sense then has this expression been used in the section quoted above? The answer to that question would depend primarily on the language of the section read in the light of the scheme of the Act and the object which it was intended to subserve.
6. Fortunately the point before us has been the subject matter of decision by the High Courts of Patna, Nagpur and Madras and also by the Federal Court. The Federal Court in Umayal Achi v. Lakshmi Achi , and the Nagpur High Court in Bhaoorao v. Chandrabhagabai , took the view that the expression 'separate property' in Section 3 (1) means self-acquired property, while the Patna High Court in Nandkumari Devi v. Mt. Bulkan Devi, AIR 1945 Pat 87 (C), took the contrary view.
The Madras High Court in Subramanian v. Kalyanarama Iyer : AIR1953Mad22 , took a midway view on the matter. Having examined the reasoning of these decisions we are of the opinion--and we state it with the utmost respect -- that the view taken by the Federal Court in the case of Umayal Achi (A), states the correct law. The facts of that case were substantially the same as in the present case. There also a widowed daughter-in-law of a predeceased son brought a suit under Section 3 (1) of the Hindu Women's Rights to Property Act for a share in her father-in-law's property which the latter had held and possessed as a sole surviving co-parcener.
The Federal Court repelled her claim holding that the property which her father-in-law died possessed of could not be regarded as his 'separate property' within the meaning of that Act. The reasons for taking that view are to he found in the judgment of Varadachariar, J. and as we cannot improve upon them, we cannot do better than to quote the entire passage dealing with the said point. Said his Lordship :
'In cases governed by the Mitakshara School of Hindu Law, the expression 'separate property' has sometimes been used in a limited sense, to denote what is known as self-acquired property. (See Mulla, 9th Edn. para 230). But, judged by the test of power of disposition, two other kinds of property held by a Hindu governed by that law, viz., property obtained as his share at a partition and property held by him as a sole surviving co-parcener may, in some measure, resemble self-acquired property.
There is however, this difference between them, viz., that in the case of self-acquired property, the owner's power of disposition will continue to remain undiminished throughout his life time unless he chooses voluntarily to throw it into the joint family stock, whereas, in the case of the other two kinds of property, his power of disposition will become qualified and his interest reduced the moment a son is born to him or the widow of a predeceased coparcener takes a boy in adoption.
It would not therefore be right to place these three kinds of property on the same footing merely on the ground that at a partipular point of time, the owner may enjoy unrestricted powers of disposition over them. That is why in enumerating the several items constituting 'separate property' in para 230 of his book on Hindu Law, Sir Dinshah Mulla has taken care to add certain qualifying words in respect of items 6 or 7 (share obtained on partition and property held by sole surviving co-parcener).
The expression 'separate property' May be the antithesis of three other expressions viz., 'ancestral properly', coparcenary property' and 'joint family property'. It is necessary to determine, in the light of the scheme of the Act, the particular sense in which the expression has been used there.
It is true, as the preamble enacts, that the measure was intended 'to give better rights to Women'. But it must be remembered that the Act was not a codifying Act or even a general amendment o the Hindu Law of Inheritance, It will help us to ascertain the precise scope of the Act, if we can ascertain the defects which it set out to remedy.
Even under the ordinary Hindu Law, a widow would in certain circumstances have succeeded to the property held by her husband as the last surviving co-parcener or as the holder of a share obtained on partition. By themselves, these cases did not call for the interference of the Legislature. It is only if the owner had sons (including in that term, grandsons and great-grandsons) that the widow would be excluded by the sons.
Legislative interference was required to obviate hardship when the owner left a widow as well as sons. Once we take note of the contingency requiring legislative interference, the difference between separate property in the strict sense and separate property in the loose sense will become apparent. In the former case, the sons would not become coparceners with their father and the inheritance would devolve on them only at their father's death.
But in the case of property obtained by the father on partition or obtained hy him as the last surviving co-parcener, the moment sons are born to him, they will become co-parceners and there will be no occasion for the property devolving on them at the death of the father. The closing words of Section 3(1) of the Act, viz., 'devolve upon his widow along with his lineal descendants in like manner as it devolves upon a son' will be appropriate to the former case but not to the latter case.
The language of the clause substituted by Act II of 1938 is slightly different but the scheme remains the same. The widow was certainly not intended to become a coparcener with her husband even during his life time. The Act of course intended to redress the widow's disabilities even in such a case; but that redress is provided by Sub-section (2) and not by Sub-section (1) of Section 3. When the sons become co-parceners with their father in property which was originally held by him as sole surviving co-parcener or as his share obtained on partition, the father and the sons become a joint family within the meaning of Sub-section (2) and when the father dies his widow will under Sub-section (2) gets his share.
Taking next the case of the widow of a predeceased son or predeceased grandson, the difference between separate property in the strict sense and the other kinds of property above referred to is equally marked. In the case of property obtained by the father on partition or as sole surviving coparcener, the son or grandson would have become a co-parcener with the father immediately he was born and when he predeceases the father or grandfather, the widow of the son or grandson will get his share under Sub-section (2).
But if it is the father's self-acquired property, the predeceased son or grandson would have acquired no right and therefore his widow would be left without any claim to the property. That case is accordingly met by the proviso to Sub-section (1) of Section 3; and this explains why this ease is dealt with as a proviso to that sub-section. Here again, the expression 'inherit in like manner as a son' in the proviso is significant. That is opposite to a devolution of the father's self-acquired property; but, in respect of the other two kinds of property, there will be no inheritance by the son as he would have become a co-parcener with the father immediately he was born.
It is true that, on the above view, the plaintiff in the present case will derive no benefit front the Act, though she happens to be the widow of a predeceased son. But that is due to the circumstance that her husband died before the passing of the Act. Other cases of hardship which, for the same reasons, the Act may be unable to remedy, may be easily imagined. If A and B were undivided brothers and the family property passed by survivorship to B, on the death of A leaving a widow, B would be the last surviving coparcener with the possibility of A's widow taking a boy in adoption.
According to the recent decision of the judicial Gommiitee in Anant Bhikkappa v. Shankar, 70 Ind App 232: (AIR 1943 PC 198 (E), A's widow can exercise her power to adopt, even after the family properly had devolved on b'k widow by inheritance; the result of her so adopting a boy would be to divest B's widow of the whole estate. Even if the adoption should take place after the Act had come into operation, B's widow could derive no benefit by relying upon Sub-section (1) of Section 3.
The only possibility of calling the Act to her aid is by the application of Sub-section (2) of Section 3, if a double fiction could be imported so as to justify the assumption not only that the joint family was being continued by the adopted boy but that B must be deemed to have died after the adoption. On this assumption, B's widow could retain a half of the estate as against the adopted son of A, only if B's ownership could be described as an interest in joint family property.
The possibility of such varying consequences cannot be allowed to control the natural and reasonable interpretation of the Act. It is prima facie prospective and its proper construction and operation must be determined with reference to conditions and contingencies likely to arise after its commencement, because these alone could presumably have been within its contemplation.
The following illustration will show that the construction contended for on behalf of the plaintiff may lead to an inequitable result which is hardly likely to have been contemplated by the Legislature. When a son is born to A, the owner of a share obtained on partition, the father and the son will become coparceners and if the son should predecease the father, the son's widow would get his share under Sub-section (2) of Section 3.
If, at this stage the father-in-law and the daughter-in-law should divide the property the father-in-law would be the owner of his share. Should this share be treated as 'separate property' within the meaning of Sub-section (1) of Section 3 the result might be that, at the father-in-law's death his widow would have to share it again with the predeceased son's widow notwithstanding the fact that the latter had already taken a half share as representing her husband.
If it is not treated as separate property within the meaning of the Act, the father-in-law's widow would succeed to her husband's share under the ordinary Hindu Law. There is no force in the criticism that such a construction assumes that the Legislature has not dealt with all conceivable cases. Obviously, that was not the purpose of the measure. As already explained, it is only a limited measure attempting to give relief in certain cases where it was considered that the existing law involved a hardship.
The difference between the position of a person owning self-acquired property and that of a person who happens to be the holder of property us a sole surviving coparcener for the time being is shown by the fact that in the latter case his right as full owner will be reduced to that of a coparcener, the moment an adoption is made by a predeceased coparcener's widow, In the words of the Judicial Committee in , this possibility challenges the character of the surviving coparcener's right as an absolute right and creates qualifications which impair its completeness.
It is an interest liable to fluctuate both during his life-time and even after his death. According to the observations of the Nagpur High Court, quoted with approval by their Lordships, the property held by a person who is a sole surviving coparcener, has the potentiality of becoming joint family property at any moment so long as there is a widow entitled to add a male member to the family by adoption.
On behalf of the appellant reliance was placed on a sentence in the judgment of the Judicial Committee in Katamma Nachiar v. Rajah of Shivagunga, 9 Moo Ind App 539 at p. 610 (PC) (F), to the effect that 'what is divided goes as separate property'. This sentence must be understood in the light of the observation on the preceding page where speaking of a case where a person has male issue, their Lordships contrast 'separate property' with 'family property' where separate property must clearly mean self-acquired property and lower down they add 'when property belonging in common to a united Hindu family has been divided, the divided shares go in the general course of descent of separate property'.
In this last sentence too, separate property evidently refers to self-acquired property and the sentence only lays down that the divided share will follow the same line of descent as self-acquired property. I am accordingly of the opinion that property held by Amnachala as the last surviving coparcener of a joint family cannot be regarded as 'separate property' within the meaning of Section 3.(1) of Act 18 of 1937 and that the plaintiff is not therefore entitled to claim the benefit of the Act.'
7. In the Patna case of Nandkumari Devi v. Mt. Balkan Devi (C), (ubi Supra) the interpretation of the expression 'separate property' has been based upon the mode of possession and enjoyment of the property by the intestate at the time of his death. To quote the learned Judges :
'the phrase 'separate property' in Section 3 (1) is contrasted not with the words 'joint family property' in Section 3 (2) but with the words 'an interest in a Hindu Joint family property' laying particular emphasis on the word 'interest'. The sole surviving coparcener of Mitakshara joint Hindu family has not merely an interest in the property, but holds the property exclusively or separately whatever its character.'
8. The learned Judges in that case, therefore, came to the conclusion that the expression 'separate property' in Section 3 (1) must be taken to be property which the intestate held separately, in the sense that he held it without the participation of any other coparcener. They came to this interpretation mainly on the consideration that Sections 3 (1) and 3 (2) taken together were intended to be exhaustive of all the possible circumstances in which a Hindu may the intestate leaving property or an interest in property.
9. The aforesaid Patna case does not appear to have been brought to the notice of their Lordships of the Federal Court though the ground on which it rests has been specifically considered and repelled by them in the case referred to above. They definitely rejected the interpretation which was based upon the concept of separate and exclusive possession of the intestate, that is possession without the participation of any other coparcener, at the time of his death.
As such the Patna case must be deemed to have been impliedly overruled by the Federal Court. In the Nagpur case of Bhaoorao v. Chandrabhagabai (B) (ubi supra), the learned Judge followed the view of the Federal Court in the case of Umayal Achi (A), and were of the opinion that the Patna case could no longer be regarded as good law on that point.
10. The last case on this point is : AIR1953Mad22 . The judgment of that case shows that the decisions which have been mentioned above in course of this judgment were cited before the learned Judge dealing with that case. He was of the opinion, to quote his own words, that
'The question before the Federal Court was as to whether the property of a sole surviving coparcener who left his widow could be treated as separate property within the meaning of the Act and the learned Judges of the Federal Court were not considering a case of the present nature, viz., of property obtained by coparcener at a family partition where there were no sons in the sense undivided sons, as by the partition the sons had become divided. The decision of the Federal Court is binding on this High Court, but it is binding only to the extent it purports to decide and nothing more.'
I1. It would thus follow that so far as the nature of property owned and possessed by a sole surviving coparcener, who died leaving a widow of a predeceased coparcener is concerned, even the learned Judge in the Madras case just cited, follows the decision of the Federal Court in Umayal Achi (A) (ubi supra).
12. Learned Counsel for the appellant also contended that the view taken by the Federal Court in the case of Umayal Achi (A) (ubi supra) was subsequently overruled by the Supreme Court in Sm. Angurbala Mullick v. Debabrata Mullick : 2SCR1125 . This, contention is however, devoid of all force. Three points appear to have been involved in the Federal Court case of Umayal Achi (A), one of them being whether 'shebaitship' was property within the meaning of Section 3 (1) of the Hindu Womens Right to Property Act or not? The same point having arisen in the case of Sm. Angurbala Mullick (G) their Lordships of the Supreme Court considered the case of Umayal Achi (A) on that point alone and expressed their opinion. The question as to the interpretation of 'separate property' was not even considered in it much less overruled.
13. On a consideration of the various authorities referred to above we are of the opinion that the expression 'separate property' in Section 3 (1) of the Hindu Women's Rights to Property Act means the self-acquired property of the intestate.
14. So far as the present case is concerned, there is however one further angle from which it can be considered, to wit, that there is nothing on the record of this case to show whether the plaintiff had any authority to adopt or not? Assuming that she had such an authority from her husband, how then can it be argued that the property which Raghunath had got on partition would still be called his separate property.
And therefore even if we had accepted the contention of the appellant's learned Counsel, it would still have been necessary for the plaintiff to have alleged and proved that she had no such authority and that therefore the possibility of a coparcener coming into existence by adoption could not arise no as to change the nature of the property in the hands of Raghunath. In the absence of such an allegation on her part it cannot be presumed that no such authority had been given to her by her late husband.
In order, therefore, to overcome that omission learned Counsel for the appellant submitted that an issue on that point might he remitted to the court below and a finding obtained thereon. In the view which we have taken above that point, however, does not arise. But even if it had, we would not have been disposed to accept that submission after a lapse of 11 years.
It is elementary that if the plaintiffs right to succeed depended upon the establishment of that fact, it was incumbent upon her to have alleged it in her plaint and to have led necessary evidence thereon as already stated, we are not inclined to permit this lacuna to be made good after a lapse of over a decade.
15. For the reasons stated above, we con-firm the decree of the lower appellate court and dismiss the appeal with costs.