1. This second appeal is by defendants 1 and 2 against the concurrent decisions of the two lower Courts declaring the plaintiff's title to the disputed property and directing that he should recover possession of the same from defendants 1 and 2. The following pedigree will be helpful in understanding this litigation.
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Arta (dead) Krupasindhu Dinalandhu
Dula (D.3) (Died in 1939) (Plaintiff)
Defendants 1 and 2 are alienees from defendant 3.
2. The plaintiffs case was that the family remained joint, that Arta died sometime in 1920, that Krupasindhu died in 1939 issueless, his wife having predeceased him, and that the entire joint family property devolved on the plaintiff by survivorship. Defendant 3 being the widow of a deceased coparcener was entitled only to maintenance and that the Kabala executed by her in favour of defendants 1 and 2 on 23-2-40 in respect of the joint family property was invalid and did not convey any title to them. The main defence of defendants1 and 2 was that Jagannath, the father of the plaintiff, had been given away in adoption to one Madhab Das and that consequently the plaintiff had absolutely no interest in the joint family property which devolved on the descendants of Lokanath only. It was further alleged that Arta survived Krupasindhu and became the sole coparcener, that soon after his death defendant 3 succeeded to the entire property as his widow and that she executed the Kabala in question in favour of defendants 1 and 2 for legal necessities.
3. The trial Court's finding was that Madhab Das was the maternal grand-father of Jagannath and Lokanath and though Jagannath was given in adoption to Madhab Das that adoption was invalid ill North Orissa, the paries being Brahmins of Puri district. It further held that there was a division of status between the plaintiff on the one hand and Arta and Krupasindhu on the other as early as 1919 and the disputed property belonged to the descendants of Lokanath only. The trial Court rejected the plaintiff's (sic) statement that Arta survived Krupasindhu and held that Arta died long before 1927 and that after the said death of Krupasindhu the plaintiff as the nearest agnate succeeded to his property in preference to the widow of a predecesed coparcener (Arta). The sale-deed executed by defendant 3 in favour of defendants 1 and 2 was therefore declared to be invalid and plaintiff's suit was decreed.
In the lower appellate Court though the respondent had filed a cross-objection challenging the finding of the trial Court to the effect that Jagannath was adopted by Madhab and that the plaintiff was separate from Arta and Krupasindhu, at the time of hearing the cross-objection was not pressed in respect of these two issues. The lower appellate Court therefore discussed mainly the question as to whether the adoption of Jagannath by Madhab was invalid and agreed with the trial Court's finding in this respect. It further held that Arta predeceased Krupasindhu and that consequently defendant 3 was not entitled to anything else but maintenance out of the joint family property of Arta and Krupasindhu. The finding of the lower Court about the invalidity of the Kabala was, however, maintained and the appeal was dismissed.
4. In pressing the second appeal Mr. H. Mohapatra relied mainly on the provisions of the Hindu Women's Rights to Property Act, 1937 (hereinafter referred to as the Act) as construed by this Court in a special Bench decision reported in --'Radhi Bewa v. Bhagawan Sahu', AIR 1951 Orissa 378 (SB) (A). Mr. Mohapatra urged that in view of the plaintiff's own case that he, Arta and Krupasindhu were all joint, defendant 3 as the widow of a predeceased coparcener would be entitled to a share in the joint family property by virtue of the aforesaid Special Bench decision inasmuch as on the date of the commencement of the Act (1937) the coparcenary had not been disrupted by partition between. Krupasindhu and Dinabandhu.
This argument, however, is not available to him because whatever might have been the nature of the claim put forward by the plaintiff in his plaint, the finding of the trial Court was that the plaintiff had separated from Krupasindhu and Arta as early as .1919. This finding was not challenged either before the lower appellate Court or before the High Court in the grounds of appeal. On the other hand, in ground No. 5 this finding was itself relied upon to show that the alienation made by defendant 3 was valid. The defendants themselves had put forward the story of separation and the finding of both the Courts must be taken to have concluded this matter.
5. Mr. Mohapatra next contended that on the findings of both the lower Courts, Krupasindhu was the sole surviving coparcener on the date of the commencement of the Act and that the principles laid dawn in the said Special Bench decision would apply with full force in favour of a predeceased coparcener's widow irrespective of whether on the date of the passing of the Act the joint family consisted of a single coparcener or more than one coparcener. Hence the question of law for decision in this appeal is whether a pre-1937 Hindu widow is entitled to the interest which her husband had in the joint family property which had devolved on a sole coparcener prior to the date of the commencement of the Act.
In a later Division Bench decision of this Court reported in -- 'Nanda Kishore v. Sukti Dibya', AIR 1953 Orissa 240 (B), the earlier Special Bench decision was discussed and distinguished by my learned brother Mohapatra J. who held that the aforesaid decision had no application to a pre-1937 widow when the joint family property had devolved on a sole coparcener prior to the date of commencement of the Act. Panigrahi J. (as he then was) though agreeing with Mohapatra J. as regards the order proposed to be passed in that case did not express his concurrence with the view taken by him on the question of law but expressed his dissent from the view taken by the majority in the aforesaid Special Bench case. I may, however, point out that the Special Bench decision is binding on all Judges of this Court and on all subordinate Courts unless and until it is overruled either by a larger Bench or by a superior Court and should be followed.
6. With respect, I would agree with my learned brother Mohapatra J. that the Special Bench decision has no application to a case where the entire joint family property had devolved on a sole surviving coparcener prior to the date of commencement of the Act. The principle which guided the Special Bench in giving limited retroactive effect to the Act was that a remedial Act should be given its maximum effect even though the meaning of the language used in the Act may fall short of the whole object of the Legislature; but that such a construction should not be adopted where it offends another well-known rule of statutory construction, namely, that retrospective effect should not be given to a statute so as to affect 'vested rights' unless the statute expressly says so or such an inference follows by necessary implication.
Applying this principle and taking note of the absence of any express words in the Act giving retrospective effect to Sub-section (2) of Section 3, the Special Bench held that the said Sub-section (2) would also apply to a widow whose husband died prior to the date of commencement of the Act so long as the joint family property had not vested in anyone. Such vesting may occur either due to partition of the joint family property prior to the date of commencement of the Act or by valid alienation or when the property passes to a sole surviving coparcener.
The case of a sole surviving coparcener was discussed and the observations of the Federal Court in -- 'Umayal Achi v. Lakshmi Achi', AIR 1945 FC 25 (C) were fully considered. That Federal Court decision was distinguished on the ground that it referred to the case of a sole surviving coparcener in whom the entire property vested prior to the date of the commencement of the Act & consequently retroactive construction should not be given to the Act so as to adversely affect his vested rights.
7. The present case is fully covered by the decision of the Federal Court in -- 'AIR 1945 FC 25 (C). In that case also the dispute was between the widow of a coparcener who died prior to 1937 and the widow of one Arunachalam who was the sole surviving coparcener of the family on the date of the commencement of the Act. The claim of the pre-1937 widow was made not on the basis of Sub-section (2) of Section 3 of the Act but on Sub-section (1) of that section on the ground that the joint family property in the hands of the sole surviving coparcener was his separate property within the meaning of that sub-section. After rejecting this argument Varadachariar J. discussed the import of Sub-section (2) of Section 3 of the Act and observed:
'It is true that on the above view, the plaintiff in the present case will derive no benefit from, 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 her passing of the Act.'
This observation may be an obiter dictum inas much as the learned counsel for the predeceased son's widow did not base his claim on Sub-section (2) of Section 3 and hence any observation about the applicability of that sub-section to the plaintiff was not necessary for the decision of that case. But as is well known even the obiter dictum of a superior Court is binding on a subordinate Court.
8. But there is a real distinction between an obiter dictum of a superior Court and a prima facie view taken by the superior Court. After making the aforesaid observations Varadachariar J pointed out some instances of hardship and observed :
'The possibility of such varying consequences cannot be allowed to control the natural and reasonable interpretation of the Act. It is 'pruna facie' prospective and its proper construction ard operation must be determined with reference to conditions and contingencies likely to arise alter its commencement, because these alone could presumably have been within its contemplation'. It will be noticed that though the learned Judge expressed in unambiguous terms that the widow of the predeceased son in that case would derive no benefit from the Act because her husband died before the passing of the Act, while expressing his view as to whether the Act was prospective or retrospective he significantly used the word 'prima facie' making it absolutely clear that on this larger question he was only giving his prima facie view. The word 'prima facie' as explained in the Oxford Dictionary means: A. At first sight; on the face of it; as appearsat first without investigation. B. Arising at first sight; based or founded on the first impression.'
A 'prima facie' view expressed on any question of law by a Judge is only his tentative view based on first impression whereas his 'obiter dictum' is an expression of his 'definite' opinion, though it was not necessary for the decision of the case before him. The word 'prima facie' cannot be construed to mean 'manifestly' as appears to have been done by one of the Judges in -- 'AIR 1953 Orissa 240 at p. 243 [B). Hence the observations of Varadachariar J. as regards the inapplicability of Sub-section (2) of Section 3 of the Act to the case of a pre-1937 widow, when the joint family property had devolved on a sole surviving coparcener on the date of the passing of the Act is binding on us -- though obiter dicta -- whereas his view on the larger question as to whether the Act was 'prospective' under all circumstances, was expressly stated to be his 'prima facie' view and required fuller investigation. The Special Bench, therefore, thought that they could examine this question more fully and give their decision thereon.
9. The facts of the present case are almost identical with those of the Federal Court decision mentioned above. Defendant 3's husband died before the passing of the Act and the entire joint family property had devolved on her husband's brother Krupasindhu who was then the sole surviving coparcener. She could, therefore derive no benefit from the Act.
10. It is true that though the joint family property may vest in a sole surviving coparcener his rights in the property are not identical with the rights of a Hindu in his self-acquired property. As pointed out in -- 'Anant Bhikappa v. Shankar Ramchandra', AIR 1943 PC 196 (D), the adoption by the widow of a collateral coparcener would divest him of a part of his interest and to that extent would impair the completeness of the interest; but his rights over the property are identical with the rights of a coparcener over the joint family property that had vested in him after partition. In both these instances the property undoubtedly 'vests in him' though it is subject to the contingency of being partially divested due to other circumstances, such as birth of a son in future in both the cases or adoption by the widow of a deceased collateral coparcener in the former case.
In considering whether the limited retroactive construction put on the Act by the Special Bench can apply to the case of a sole surviving coparcener the question is not whether his rights over the joint family property are as complete as those of a Hindu over his self-acquired property but whether the property 'vests in him' so as to bar such retroactive construction. Property may 'vest' in an individual even though he may not have all the rights of a full owner over the property. In the aforesaid Privy Council decision their Lordships expressly used the expressions 'vested' and 'de-vested' while referring to the property of a sole coparcener and the effect of adoption by the widow of a predeceased collateral on that property thereby making it clear that property may vest in an individual even though his rights over the same may not be as complete as those of a Hindu over his self-acquired property.
The Special Bench expressly refused to give limited retroactive effect to a case where the joint family property had been partitioned amongst the coparceners prior to the commencement of the Act and the position of a sole coparcener is identical with that of a coparcener who has obtained. his share of the joint family property after partition and the same reasonings for which the Special Bench held that its decision would not affect the former would apply with full force in respect of the latter, There are several passages in the judgment of the majority of Judges in the Special Bench case in support of this view and it is hardly necessary to quote them at length here.
11. Mr. Mohapatra, however, rightly drew our attention to an anomaly and hardship that would arise by not giving full retroactive effect. Suppose there are two Hindu families in which the last male holders were A and B though both had a son who died prior to 1937 leaving a widow C. A's property was all self-acquired whereas B's property was all ancestral which devolved on him as the sole surviving coparcener, Prior to 1937, A was not under a legal obligation to maintain his son's widow though he was under a moral obligation whereas B was under a legal obligation to maintain his son's widow. After the passing of the Act, by virtue of Sub-section (1) of Section 3 as construed in the aforesaid decision of the Federal Court his son's widow would after his death inherit a share of his property in like manner as her husband.
In the latter case, however, if such retroactive effect is not given to the Act the predeceased son's widow who was always entitled to maintenance even before 1937 would get no better rights after the passing of the Act.
It seems anomalous and illogical that a widowed daughter-in-law who was not legally entitled to maintenance before 1937 should suddenly get a share in her father-in-law's property whereas another widowed daughter-in-law who was entitled to maintenance before 1937 would derive no benefit from, the Act. Cases of hardship of this type are bound to arise & as pointed out by Varadachariar J. in the aforesaid Federal Coui't decision 'one can imagine several instances of hardship which the Act may be unable to remedy.' But that cannot be any ground for giving such a construction to the Act so as to affect vested rights unless there are express words taking away such rights.
12. I would, therefore, hold that there is nothing in the Special Bench decision of this Court to justify the view that the benefits of Sub-section (2) of Section 3 of the Act can be obtained by a pre-1937 widow where the entire joint family property had devolved on a sole coparcener prior to the passing of the Act. Such a case was clearly excluded from the scope of that decision and is fully covered by the observations of Varadachariar J. in the Federal Court decision mentioned above. I would, with respect, agree with the reasons given by Moliapatra J. in -- 'AIR 1953 Orissa 240 (B). The result is that defendant 3 had no interest in the joint family property (except her right of maintenance) which after the death of the sole surviving coparcener Krupasindhu in 1939 was inherited by the plaintiff Dinabandhu. Her sale-deed in favour of defendants 1 and 2 cannot convey any title to them. The appeal is, therefore, dismissed with costs and the orders of the lower Courts are confirmed.
13. I agree that the appealmust be dismissed with costs inasmuch as defendant 3 had no interest in the property to conveyin favour of defendants 1 and 2, her husband Artahaving died long before 1937 in a state of jointness with Krupasindhu and the entire propertiesdevolved upon Krupasindhu, the sole coparceneron the death of her husband. Where the entirejoint family property devolved on the sole surviving coparcener prior to the date of the commencement of the Hindu Women's Bights to PropertyAct, the widow of a coparcener who died long before 1937 is excluded from the scope of the decision of the Special Bench of our Court reportedin -- 'AIR 1951 Orissa 378 (SB) (A)'. I wouldadopt the same reasons as I had given in my judgment in the case reported in -- 'AIR, 1953 Orissa240 (B)'. Such a case is July covered lay theobservations of Justice Varadachariar in the FederalCourt decision reported in -- 'AIR 1945 FC 25 (C)'.