G.P. Singh, J.
1. The facts giving rise to this appeal are that Bhawarsingh, the defendant No. 1 who is now appellant No. 1 in this appeal, had two sons, namely. Audhram and Basant, who are both dead. Audhram died in 1948 leaving behind his widow Pilabai, who is the plaintiff-respondent. Basant died leaving behind his son Bhuwan. Bhuwan also died leaving behind his son Ghiwchand, who was defendant No. 2 and is now appellant No. 2. The suit was filed by Pilabai, widow of Audhram, against Bhawarsingh and Ghiwchand for partition of joint family property. A preliminary decree was passed in the suit on October 31, 1964 by which the plaintiff was declared to have 1/3rd share in the property. The preliminary decree for partition was confirmed by the Second Additional District Judge, Durg, in first appeal. The defendants then came up in second appeal.
2. The only point raised in the memo of appeal was that Bhawarsingh's wife Dheliyabai was not impleaded in the suit and, therefore, the suit was defective. It is now pointed out the Dheliyabai died during the pendency of the appeal on December 2, 1966. This fact is not disputed by the learned counsel for the plaintiff-respondent. The argument of the learned counsel for the appellants is that though the preliminary decree for partition did not declare any share in favour of Dheliyabai as she was not a party, yet in law she became entitled to l/4th share in the property on the date of the preliminary decree which, on her death in 1966, passed to appellant No. 1 Bhawarsingh, who was her husband and. therefore, the division should now be in the following shares:--
Plaintiff (Pilabai) - 1/4th sharesGhiwchand - 1/4th share andBhawarsingh - 1/2 share.
3. Learned counsel for the respondent does not dispute that if Dheliyabai had any interest in the property, that would solely pass to Bhawarsingh on her death and the plaintiff and other defendant would, in that case, be entitled to only 1/4th share in the property and Bhawarsingh would be entitled to 1/2 share. He, however, contends that Dheliyabai's right to share in the property could have arisen only after the makingof a final decree actually dividing the property by metes and bounds. For this proposition, the learned counsel for the respondent relies upon Pratapmull Agarwalla v. Dhanbati Bibi, AIR 1936 PC 20.
4. Pratapmull's case, AIR 1936 PC 20 no doubt, supports the contention of the learned counsel for the respondent, but that case, as decided by the Supreme Court in Munnalal v. Raikumar. AIR 1962 SC 1493, does not now hold the field. Their Lordships specifically said that the rule enunciated by the Privy Council in Pratapmull's case could not be applied after the enactment of the Hindu Succession Act. In Munnalal's case the Supreme Court held that a share allotted to a widow under a preliminary decree was her property which became her absolute property under Section 14(1) of the Hindu Succession Act and devolved in accordance with Section 15(1) of the said Act.
In that case also the Hindu widow,who had been given a share at the time of the passing of the preliminary decree, was one who had no interest in the coparcenary property as her husband had died before enactment of the Hindu Women's Rights to Property Act. 1937. Nevertheless, their Lordships held that the share assigned to her by the preliminary decree became her absolute property which on her death during the pendency of the suit devolved on her heirs. The only thing that distinguishes Munnalal's case is that Dheliabai in the instant case, was not a party to the suit and, therefore, no share was specifically assigned to her by the preliminary decree. That distinction, in my opinion, does not make the principle laid down in Munnalal's case inapplicable. Dheliabai ought to have been joined as a party to the suit and had she been joined, the preliminary decree would have fixed her share which she was to receive in partition of the joint family property. Simply because parties to a partition do not assign any share to a woman, who on partition is entitled to a share, she cannot be deprived of her rightful share and she can sue for it; Radhabai v. Pandharinath AIR 1941 Nag 135.
Thus, her right to share must be taken to accrue immediately a partition is made, although in that partition she is not assigned any share. Now, as decided in Munnalal's case, this right to share has not to wait for its accrual till the property is actually divided, but arises even at the stage when shares in the property are declared by a preliminary decree. Therefore, the moment the preliminary decree for partition was passed in the suit the right to share in the property accrued in favour of Dheliabai andi this right was itself property which on her death passed by inheritance toBhawarsingh under Section 15(1) of the Hindu Succession Act. In my opinion, therefore, the contention raised by the learned counsel for the appellants must be accepted and it must be held that the property should now be divided in the following shares:--
Pilabai - 1/4th share;Ghiwchand - 1/4th share andBhawarsingh - 1/2 share.
5. The appeal is allowed. The judgments and decrees passed by the Courts below are modified to this extent that the shares to which the parties are entitled shall be 1/4th Pilabai, 1/4th Ghiwchand and 1/2 Bhawarsingh. The parties shall bear their own costs throughout.