G.K. Misra, J.
1. The petitioners are the three daughters of Rama. The following genealogy would show the relationship of the parties.
RAMA (Widow Rani-Defdt,')
| | | | |
Kantha Bata Krushna Dulei Suka Madha
(son) (son) (son) (daughter) (daughter) (daughter)
| (D.1) |
A preliminary decree was passed on 3-7-58 and admittedly Rani (defendant No. 3) got 1/4th share in the preliminary decree in a division with three sons, each one of whom sot one share. Rani died on 70-10-60. On her death the petitioner filed an application (that?) the 1/4th share of the total property declared in favour of Rani in the preliminary decree was a property belonging to Rani, and so the petitioners are entitled to a share out of it by succession under the Hindu Succession Act. The plaintiff opposed the claim on the ground that until final partition by metes and bounds Rani had no vested title in the property and so the petitioners are not entitled to be substituted.
2. The matter was gone into thoroughly by the learned trial court who came to the conclusion that Rama died in 1935 and Rani was a pre-Act widow, and so she was not entitled to any share under the Hindu Women's Rights to Property Act. Relying on Pratapmull v. Dhanbati Bibi, AIR 1936 PC 20 the learned Subordinate Judge came to the conclusion that even though in the preliminary decree Rani got 1/4th of the total property, she was owner in respect of this property under the Hindu Law. He accordingly rejected the petitioner's prayer for substitution. Against this order of the learned Subordinate Judge this Civil Revision has been filed.
3. In AIR 1936 PC 20. their Lordships have held that according to the Mitakshara law, the mother cannot be recognised as the owner of a share in the joint family property until the division is made by metes and bounds, and that she does not become the owner of a share merely by declaration of her title in the preliminary decree. This decision has been held as no longer good law in Munnalal v. Rajkumar, AIR 1962 SC 1493. Their Lordships observed that the explanation to Section 14(1) of the Hindu Succession Act gives to the expression 'property' the widest connotation, so as to include the share declared by a preliminary decree for partition in favour of a Hindu female, and that the rule that till actual division of the share by partition of the joint family estate, a Hindu female cannot be recognised as owner cannot be held as good law after the enactment of the Hindu Succession Act which supersedes the rules of Hindu Law in all matters expressly provided for in the Act. In view of this decision, there can be no further resistance to the application for substitution.
4. In the result, the Civil Revision is allowed and the petition for substitution is allowed. But parties to bear their own costs.