1. This first appeal at theinstance of the defendants is directed against the judgment and decree passed by the Additional District judge to the Court of First Additional District Judge, Indore, decreeing the entire claim of the plaintiffs for partition of certain items of immoveable property and also for accounts of the income derived by the defendants from the property in suit.
2. The facts giving rise to the suit out of which this appeal arises are as below and are more or less undisputed:--
Mataprasad Pandey and his three sons Shankarprasad, Premshankar and Manoharprasad formed a joint Hindu family.The suit property was admittedly ancestral. Mataprasad had two wives Kaushalya Bai and Chhotibai. Mataprasad died in or about the year 1923, i.e., long before the coming into force of the Hindu Women's Right to Property Act, 1937, leaving behind his two widows and the three sons. Thereafter, Shankarprasad, one of his sons, died in 1933 leaving behind his widow Ramdevi and three sons Ashok, Arvind and Ravindra, the plaintiffs Nos. 2, 3 and 4. In the year 1939 a partition of the property of the joint Hindu family left behind by Mataprasad was effected in between Premshankar, Manoharprasad and the heirs of deceased Shankarprasad. In the said partition, each of the two widows of Mataprasad, viz., Kaushalyabai and Chhotibai, was also given a share equal to that of a son. The entire property was valued at Rs. 1.25.000 and was distributed in five equal shares of Rs. 25,000 each. Thus, Kaushalyabai and Chhotibai each got one share equal to that of a son at the time of partition. Thereafter, in the year 1945, Manoharprasad also died leaving behind him his widow Tara Devi alone as his only heir. Kaushalya Bai, one of the co-widows, also died in the year 1941. Thereafter, Chhotibai, the other widow died on 12th September 1964. She had, however, bequeathed her entire property in favour of defendant No. 1 Prem Shankar and his wife Smt. Savitri Devi, the defendant No. 5.
3. One item of property which fell to the share of Kaushalyabai in partition comprising of a house bearing Municipal Registration No. 9 situated in Imli Bazar was, however, sold in October 1955 by the plaintiffs and defendants jointly and the sale proceeds were divided in between them equally.
4. The claim made by the plaintiffs for partition of various items of the properties, which were held by Kaushalyabai and also by Chhotibai, was based on the plea that since according to the specific terms and conditions as incorporated in the registered deed of partition, the properties allotted to Kaushalyabai and Chhotibai, respectively, were with life interest only and on the death of Kaushalyabai or Chhotibai, were to revert back to the three branches of the family, i.e., the three sons of Mataprasad, the plaintiffs were entitled to claim partition and accounts of income in respect of the properties as shown in Schedule A annexed to the plaint. It was not disputed that the property shown in Schedule A comprised of various items which had been allotted to Kaushalyabai and Chhotibai, respectively, at the time of partition, except the house situated at Imli Bazar was allotted to Kaushalyabai which had been already sold by the plaintiffs and the defendants and the sale proceeds had been admittedly apportioned equally by all the three branches.
5. The stand taken by the defendants was that since Kaushalyabai and Chhotibai were co-widows, both of them together got one share in the partition and being co-widows were holding the same as joint tenants and, therefore, on the death of Kaushalyabai which took place in the year 1941 the properties held by her devolved upon the surviving co-widow, i.e., Chhotibai, by the rule of survivorship which was applicable to them inter se. Chhotibai, thereafter, became the absolute owner of the entire property shown in Schedule A on the coming into force of the Hindu Succession Act, 1956, in accordance with the provisions of Section 14(1) of the said Act. In this background it was contended that since Chhotibai had already bequeathed her entire property in favour of defendants Nos. 1 and 5, the plaintiffs had no claim in the suit property and, therefore, could not get a decree either for partition or for accounts of the income from the said property.
6. The learned Additional District Judge, however, rejected the contention of the defendants about the applicability of the rule of survivorship and held that since each of the two widows were individually given a share equal to that of a son at the time of partition with the restricted life interest, the properties held by Kaushalyabai at the time of her death reverted back to the heirs of her husband, i.e., the above-referred three branches, and did not devolve upon Chhotibai by survivorship. The learned Additional District Judge, therefore, held that the plaintiffs were entitled to claim partition of the properties left by Kaushalyabai. The learned Judge of the trial Court further held that despite coming into force of Section 14 of the Hindu Succession Act, 1956, Chhotibai did not become the absolute owner for the reason that she got the properties by virtue of the deed of partition with restricted life interest alone and, as such, her casewas governed by the provisions of Sub-section (2) of Section 14 and not by Sub-section (1) of the said section. On this reasoning the learned Additional District Judge decreed the entire claim of the plaintiff for partition and accounts of income in respect of the properties mentioned in Schedule A.
7. The defendants being aggrieved by the aforesaid judgment and decree have preferred this appeal. Since the facts stated above were more or less admitted, learned counsel for the appellants raised the following two contentions while assailing the judgment and decree impugned. The first contention urged was that since Kaushalyabai and Chhotibai were co-widows, the rule of survivorship was applicable to them inter se and, as such, on the death of Kaushalyabai, all the properties which were given to her at the time of partition, devolved upon Chhotibai in the year 1941. The second contention put forth was that on the coming into force of the Hindu Succession Act, 1956, Chhotibai became the absolute owner of all the properties including those left by Kaushalyabai and since she had made a will bequeathing all the properties owned by her in favour of defendants Nos. 1 and 5, the plaintiffs had no claim in the suit property and, as such, the view taken by the learned Additional District Judge that Sub-section (2} of Section 14 of the Hindu Succession Act, 1956, (hereinafter referred to as 'the Act'), became applicable simply because the partition was effected by executing an instrument in the shape of a registered document of partition and the fact that the property was given to the widows with limited interest was mentioned in the said document, was erroneous in law as it was not a case of grant made for the first time. Actually the properties were allotted and given to the widows in satisfaction of their preexisting right to get a share equal to that of a son at the time of partition. Thus, applying the rule of survivorship inter se in between the two widows and placing reliance on the provisions of Sub-section (1) of Section 14 of the Act, the appellants claimed that the claim put up by the plaintiffs in the suit giving rise to this appeal was liable to be dismissed.
8. As regards the first contention, an effort was made to persuade us to hold that actually one share was carved out of the property belonging to the jointfamily at the time of partition for ensuring maintenance to the two widows and out of the same particular items were allotted to each of them for the sake of convenience and, therefore, all the items allotted to Kaushalyabai and Chhotibai were actually held by them as joint tenants with the incidents of survivorship. Shri Chaphekar, learned counsel appearing for the appellants, referred to Article 43 of Mulla's Hindu Law in the Chapter of Mitakshara Succession. A reference was made to the contents at page 112 of the 14th Edition of the Book, wherein it had been said that when there are two or more widows succeeding as co-heirs to the estate of their deceased husband, they take as joint tenants with rights of survivorship and equal beneficial enjoyment. In our opinion, this argument is apparently misconceived, and the provisions of Article 43, as referred above, are neither relevant nor applicable to the present case, because it is not a case where two or more widows have succeeded as coheirs to the estate of their deceased husband. The aforesaid provisions relate to the legal position about the law of inheritance and succession. Undisputedly, Mataprasad had left behind him his three sons also. Thus, Kaushalyabai and Chhotibai, the widows of Mataprasad, were not the only heirs left so as to attract the applicability of the aforesaid provisions relating to inheritance or succession.
9. Similarly, the other contention that one share was carved out and was given to the two widows as joint tenants is also not borne out either from the legal position or from the contents of the deed of partition. At the time of partition, each of the widows was entitled to get a share equal to that of a son and that is why the entire property which was valued at Rs. 1,25,000 was divided into five equal shares of Rs. 25,000 each and allotted to the five claimants, i.e., the branches of the three sons and the two widows of Mataprasad. In such a case, there was no question of the widows Kaushalyabai and Chhotibai inheriting or succeeding to the property of their deceased husband as joint tenants with the incidence of survivorship. It was a case of allotment of one share equal to that of a son to each of them, of course, with limited life interest. The condition incorporated in the deed of partition that on the death of either Kaushalyabai or Chhotibai the properties held by themwould revert back to the three branches, i.e., the sons of Mataprasad, was fully in consonance with the correct legal position under the Shastric Hindu Law as was then in force.
10, Learned counsel for the respondent-plaintiffs referred to Article 316 of Mulla's Hindu Law at page 404 of the 14th Edition of the Book dealing with the question of share of a widow-mother at the time of partition. Actually speaking, this is the Article relevant for the purposes of the present case. It was rightly pointed out that Illustration (c) appended to Article 316 discloses the nature of shares which a widow-mother gets at the time of partition. From the said Illustration and the context of Article 316 it is apparent that if 'A' dies leaving two widows B and C, and two sons D and E by B, and the widow C having no son, the property left behind by A will be divided into four parts, there being two widows and two sons, and each widow will take one-fourth and each son will also take one-fourth. Thus, there is no basis for the contention that if there are more than one widow, all the widows together would get one share equal to that of a son and would hold the said share as joint tenants with the incidence of survivorship. In this connection, the Illustration appended to Article 317 relating to the share of a grandmother also makes it clear that when A has a son B, a mother M, and two wives W and W1, and B sues A for partition, then under the Mitakshara law, M would not be entitled to a share and each of the other persons, i.e., the son B and the two wives W and Wl, would take 1/4th share. Thus it is apparent that the provisions of Article 43, as pointed out by the learned counsel for the appellants, relate to the question of succession by two co-widows in the absence of male heirs to the property of their deceased husband, and in that case they may succeed as joint tenants with the incidence of survivorship. But the situation is quite different when a partition is effected amongst the sons governed by the Mitakshara law and the widow mother, or if there be more than one, all such mothers, and their father having left behind more than one widow, these widow mothers would independently get one share equal to that of a son. The aforesaid illustrations are in full consonance with the comments contained in Smriti Chandrika Chapter II Sloka268 as reproduced below:--
^^tuU;Lo/kuk iq=SfoHkkx'kZ lea gjsr~ bfrLej.kkrA
vLo/kuk izfrfLodL=hf/ku'kqU;k tuuh iq=Sjtho f}Hkkxs f;ek.ks iq=ka'kleesoka'ka gjsfnR;FkZ%A
(Underlining is ours).
The expressionf}Hkkxs f;ek.ks iq=ka'kleesoka'k gjsfnR;FkZA
I makes it clear that whenevertheir is a partition amongst the sons the widow-mother would get a share equal to that of a son in the coparcenary property.
11. The contents of the deed of partition; therefore, cannot be construed in the manner as suggested by Shri Chaphekar. Actually speaking, the parties had also accordingly understood and acted upon the terms and conditions by accepting the position that after the death of Kaushalyabai, the properties left by her would not devolve upon Chhotibai by the rule of survivorship but would revert back to the heirs of her deceased husband. This is fully indicated by the undisputed fact and circumstance that after the death of Kaushalyabai one of the houses held by her, situated at Imli Bazar, was sold jointly by all the three branches and the sale proceeds were equally divided amongst them.
12. The other circumstance relevant is that earlier there was an occasion for Chhotibai to institute a suit for recovery of arrears of rent for the period after the death of Kaushalyabai. The other members of the family were liable to pay rent according to the terms of the partition deed because half of the house occupied by them was allotted to Chhotibai and the remaining half to Kaushalyabai. Chhotibai in the aforesaid suit, undisputedly, claimed arrears of rent only in respect of her own share, i.e., at the rate of Rs. 20 per month, and no claim was made in respect of the share of Kaushalyabai. It is true that the aforesaid acts and omissions on the part of Chhotibai or of the present defendants may not alter the actual legal position and had there been any such legal right accruing to them it might not have been possible to stop or deprive them of such a right merely on the grounds of the aforesaid acts and omissions. We have referred to these circumstances while construing the contents of the deed of partition in the context of the contention raised by the defendants that only oneshare was allotted to both the co-widows and they took it as joint tenants. Thus, the contention that Kaushalyabai and Chhotibai, the widows, got only one share and that they took it as joint tenants is neither borne out from the contents of the deed of partition nor from the actual legal position applicable to the case. Therefore, according to the correct legal and factual position there is no scope to uphold the contention that the two widows got the suit properties as joint tenants with the incidence of survivorship. Consequently, the trial Court was right in rejecting the contention raised by the defendants.
13. As regards the second contention, however, we are of the opinion that in view of the recent decision of the Supreme Court in the case of V. Tulasamma v. Sesha Reddi (AIR 1977 SC 1944) settling the controversy about the applicability of Sub-section (1) of Section 14 of the Act even in cases where certain property was allotted by virtue of a deed, decree or award in satisfaction of a preexisting right, Chhotibai did become an absolute owner of the properties which were allotted to her at the time of partition. After the coming into force of the Act, she having become the absolute owner of the same, was fully competent to make a bequest in favour of defendants Nos. 1 and 5. Since the will has been found to be genuine and duly proved and the same has also been validly executed and these findings have not been challenged at this stage before us, the plaintiffs have no right, title or interest in the properties which were allotted to Chhotibai at the time of partition and of which she was possessed on the date of coming into force of the Act. Since she was competent to make a will in respect of the properties shown therein as an absolute owner, the defendants Nos. 1 and 5 got the same by virtue of the will and the plaintiffs cannot claim any right, title or interest in the same.
14. Shri Sanghi, learned counsel appearing for the plaintiff-respondents, however, contended that the decision of the Supreme Court in V. Tulasamma's case (supra) did not come in way of the plaintiffs. The argument put forth by him was that the allotment of certain properties to Chhotibai or Kaushalyabai was not towards their claim for maintenance, which, no doubt, could be said to be a pre-existing right, but was given for the reason that according to the old Shastric Hindu Law, the widow was also entitledto a share equal to that of a son, if any, partition was effected by the sons. Thus, the effort made by the learned counsel was that the right of maintenance and allotment of certain properties in lieu of the same was quite distinct from the allotment of a share equal to that of a son, if any, partition was effected- According to Shri Sanghi, the claim of maintenance was definitely a pre-existing right which was not, dependent upon the contingency of the actual partition amongst the sons, but the same was not the position in respect of a claim for a share equal to that of a son at the time of partition. Shri Sanghi contended that such a right could not be treated as a pre-existing right because according to the old Shastric Hindu Law, the widow could not compel the sons to effect a partition and give her a share. She could get a share only when a partition was effected, and thus she had nothing by way of right. Such an entitlement was not under any pre-existing right inasmuch as it was dependent upon the happening of certain event, i.e., the partition amongst the sons. The learned counsel, therefore, contended that the ratio of V. Tulasamma's case (supra) was not applicable and in the present case in which whatever the widows got was by virtue of the deed of partition and that the allotment of certain properties was made for the first time with restricted estate and, accordingly, Sub-section (2) of Section 14 of the Act came into play and the provisions of Sub-section (1) of the said section did not apply.
15. In our opinion, the aforesaid contention is misconceived. The provisions under the old Shastric Hindu Law ensuring a share equal to that of a son to the widow-mother at the time of partition was really in lieu of her right of maintenance. It is true that so long as there was no partition, the female members had only a right of maintenance and the same happened to be a charge on the property of the joint family. Once the status of the joint family was intended to be brought to an end by effecting a partition, a provision was made for giving a share to the female heirs, of course, with life interest at the time of partition. It was thus really in lieu of maintenance for which the estate of the joint family was liable. This was the view taken by the Privy Council in Hemangini Dasi v. Kedar Nath ((1889) ILR 16 Cal 758). These observations have been referred in para 23 and relied in V. Tulasamma's case(AIR 1977 SC 1944) (supra). In para 4 of the judgment in Tulasamma's case (supra) it has been specifically laid down that-
'Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of Sub-section (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property.'
16. These observations give a complete answer to the contention raised on behalf of the respondent-plaintiffs. Thus, the source of title of the widows in respect of the suit property was not the deed of partition but their right to get a share in the coparcenary property. Similar was the view taken by a Division Bench of this Court in the case of Narsinghdas v. Commissioner of Wealth Tax, M. P. (1967 MPLJ 781) (para 10). We, therefore, hold that the present case was governed by the provisions of Sub-section (1) of Section 14 of the Act, and, accordingly, Chhotibai became the absolute owner of those properties which she had obtained in the partition and of which she was possessed at the time of making the will and at the time of her death. Since she became the absolute owner of those properties she was competent to make a will in favour of defendant No. 1 Premshankar and his wife defendant No. 5 Smt. Savitridevi. The defendants had, accordingly, become the owners of the same to exclusion of the plaintiffs.
17. The result, therefore, is that this appeal deserves to be partly allowed. The claim of the plaintiffs for partition and accounts of income deserves to be decreed only in respect of those items of properties which were allotted to Kaushalyabai. Since out of the same, one item, i.e., the house situated in Imli Bazar, had already been disposed of by all the parties and the sale proceeds also having been shared equally amongst them, the partition shall be effected only in respect of the remaining two items, i.e., the half share in house No. 14 situated at Kishanpura and the plot No. 11 situate in Moti Tabela. The claim of the plaintiffs in respect of the properties held by Chhotibai, i.e., the half interest in house No. 14 situate at Kishanpura, house No. 25 at Kishanpura and house No. 1 situate at Tukoganj, is dismissed.The suit of the plaintiffs is, accordingly, partly decreed. In view of the partial success, it would be just and proper to direct that the parties will bear their own costs throughout. Thus, the preliminary decree made by the trial Court stands as modified to the extent indicated above.