1. This second appeal is filed by the plaintiffs against the confirming judgment of the District Judge of Cuttack dismissing the suit.
2. The plaintiffs' case is that the disputed properties originally belonged to one Padmalav Panda who died leaving the mother of plaintiff 1 and plaintiff 2 as daughter and one Sadhu husband of defendant 4 as the only son; that Sadhu died in 1940 leaving a son Gopi and his widow defendant 4 but a year later, that is, in 1941 Gopi also died; that defendant 4 executed two sale deeds in favour of defendants 1 to 3 without any legal necessity or consideration; and that the suit is therefore filed for a declaration that the sale deeds are invalid and not binding on them.
3. The contention of defendants 1 to 3 is that mother of plaintiff 1 was not a daughter of Padmalav but was a daughter of a sister of Padmalav; that Padmalav had two brothers Kritibas and Lakshmidhar; that defendant 1 is the son of Kritibas and defendants 2 and 3 are the son and grandson respectively of Lakshmidhar; that as Gopi was the last male-holder, the plaintiffs arc strangers and not entitled to sue; that they (defendants 1 to 3) are the reversioners entitled to succeed to the property on the death of defendant 4; and that the sale deeds were executed for due consideration and legal necessity. Defendant 4 filed a written statement supporting the contention of defendants 1 to 3.
4. The trial Court found that plaintiff 1 was daughter of Padmalav and not a daughter of a sister of Padmalav, but dismissed the suit holding that the plaintiffs are not entitled to the declaration sought for as they are not the nearest reversioners. He also held that only one of the sale deeds was supported by consideration and for legal necessity. With regard to the other sale deed he held that legal necessity was not proved fully,
5. The plaintiffs appealed and the appellate Court dismissed the suit holding that the plaintiffs were not entitled to sue but did not give a finding on the question of legal necessity for the two alienations.
6. Mr. G. K. Misra, the learned counsel for the appellants raises an interesting question of law under the Hindu Women's Rights to Property Act which arises in the decision of this appeal. He contends that Sadhu and his son Gopi were members of the joint family; that after the death of Sadhu in 1940 his interest in the joint family property devolved on defendant 4 under the Hindu Women's Rights to Property Act and Gopi and defendant 4 continued as members of the Joint family; that after the death of Gopi defendant 4 succeeded to his interest aa mother; that consequently defendant 4 is in possession of the property under two distinct rights, namely, possession of half the property by virtue of her right under the Hindu Women's Rights to Property Act and possession of the other half by virtue of having succeeded by inheritance as mother to the share of Gopi; that therefore both the lower Courts erred in holding that Gopi was the last male-holder for the entire property; and that consequently the plaintiffs are not the reversioners and entitled to sue.
Mr. Misra contends that as far as Sadhu's Interest in the property is concerned, defendant 4 succeeded to the share by virtue of the Hindu Women's Rights to Property Act which is a statutory right and that as far as that interest is concerned, the last male-holder after her death would be Sadhu and not Gopi. He relies for this contention on the principle that after the death of Sadhu her husband, half his body survives in her and it is in consequence of this principle she was given a right to succeed to the interest of her husband by the Act and consequently after her death the last male-holder would be her husband and not Gopi as far as that interest is concerned.
7. The learned District Judge relying upon Section 27 at page 20 of Mulla's Hindu Law which defines the last full owner of the property came to the conclusion that Gopi was the last full owner. In Mulla's Hindu Law it is slated that the last full owner of the property is one who held the property absolutely at the time of his death. The learned District Judge, on the strength of this dictum, observes:
'In this particular case Gopi being son of Sadhu held the property absolutely in his own right on the death of his father. As such Gopi was the last male-holder or the full owner of the property. No doubt defendant 4 had a right in the property under the Hindu Women's Rights to Property Act, but that did not take away the right of Gopi in the property.'
I have no hesitation in saying that this conclusion of the learned District Judge is wrong. By no stretch of imagination can Gopi be said to be the full owner of the property. As long as defendant 4 is alive, half the interest in the property vests in her and she is entitled to enjoy the same and could have even demanded partition of that right into two equal shares during the life time of Gopi. After the death of Gopi the last coparcener of the family, the interest to which she succeeded under the Hindu Women's Rights to Property Act does not cease to exist. She continues to enjoy that interest as long as, she is alive and that interest till her death remains to be the interest of her husband in the joint family property.
According to the decision of this Court in the case of -- 'Kunja Sahu v. Bhagaban Mohanty', AIR 1951 Orissa 35 (A), she can even alienate her interest in the property.
8. The learned counsel for the appellants submits that there is no direct authority in support of the contention put forward by him; that the decision in the case of -- 'Laxman Gopal v. Gangabai', (S) AIR 1955 Madh-B 138 (B) is against his contention, but that the said decision is under the Bombay School of Hindu Law and is also against principles laid down by this Court in the cases of AIR 1951 Orissa 35 (A); -- 'Radhi Bewa v. Bhagawan Sahu', AIR 1951 Orissa 378 (SB) (C) and -- 'Gangadhar Rout v. Subhasini Bewa', (S) AIR 1955 Orissa 135 (D).
9. The facts of the 'Madhya Bharat case (B)' are as follows: The properties in suit belonged to one Balkrishna Rao Kunte who died on 28-1-1944 leaving behind him his widow Radha Bai and his adopted son Vasant. Vasant died on 17-1-1948 and Radha Bai died on 9-2-1948. The plaintiff is the daughter of Balkrishna Rao Kunte's sister and defendants 1 and 2 are Radha Bai's brothers.
The plaintiff alleged that the parties are Maharashtrian Brahmins and are governed by Bombay School of Hindu Law; that Radha Bai became owner of half of the property of Balkrishna in 1944 after his death under the Hindu Women's Rights to property Act and when Vasant died, she became owner of the full property and as such the plaintiff is entitled to a moiety of the property which has vested in Radha Bai according to Section 3(2), Hindu Women's Rights to Property Act. Defendant 1 who alone contested the suit contended that Radha Bai did not get any share on the death of her husband and the whole property devolved upon him being the nearest heir of the last male holder Vasant.
The Court held that under the Bombay School of Hindu Law, there is no doubt that the defendants were entitled to the immovable properties and the money left in the bank by Balkrishna. But it was contended before their Lordships by the learned counsel for the respondent in that appeal that the interest which Radha Bai took after the death of Balkrishna is a separated interest which a widow takes under Section 3(2), Hindu Women's Rights to Property Act, and that after her death the plaintiff who is the nearest heir of Balkrishna succeeded to the same.
In support of his contention the decision of this Court in the case of AIR 1951 Orissa 35 (A) was cited by the respondents, but the Court held that the observation made in that case and the principle deduced cannot be made applicable to the case before their Lordships.
10. In 'Kunja Sahu's case (A)' It was held by this Court that the widow of a deceased coparcener has the right to alienate her husband's interest in the joint family property which devolved on her on the death of her husband under the Act, without claiming partition of the interest. The learned Judge Chaturvedi J. in the Madhya Bharat case distinguished this case holding that in the case before him there was no dispute between Radha Bai and her son and Radha Bal did not alienate her interest in favour of the plaintiff.
The learned Judge referred to the cases of the Madras High Court in -- 'Parappa v. Nagamma', AIR 1954 Mad 576 (PB) (E) and --'Subba Rao v. Krishna Prasadam', AIR 1954 Mad 227 (G) where it was held that the Hindu conception that a widow is the surviving half of , the deceased husband has to be invoked in such cases and a fiction is to be introduced, namely, that she continued to be the legal persona of the husband till her death and that when once the widow dies, Section 3(2), Hindu Women's Rights to Property Act, has no further effect and the rights of the parties must be determined exactly as if there had been no interposition of the widow or as if the husband himself has died when the widow died.
These two decisions of the Madras High Court were based on a text of Brihaspati:
'When a person dies and his wife survives, half his body survives in her; when half the body of a person survives, how can another person take his property'.
The learned Judge then discussed the import of the above text and came to the conclusion that in Hindu Law the identification of the wife with her husband is not so complete as the identification of the son with the father. He relied on a decision of Chandavarkar J. in the case of -- 'Gangu v. Chandrabhagabai', 32 Bom, 275 (G) where it was held:
'No doubt, the wife is half of her husband, but she is only a half, not the whole, and that also for certain defined purposes into which considerations as to rights of inheritance and partition do not necessarily enter in the same way that they do in the case of a father and his son. A son is by legal fiction the whole of his father. There is no text or rule of succession or partition, according to which a husband dying, his widow can claim to take his place as his 'alter ego' in the same way that his son can and to inherit or share what he would have been entitled to inherit or share, had he been alive,'
and the learned Judge applied that principle to the case before him and held that the fiction that Radha Bai continued to be the legal persona of the husband till her death on 9-2-1948 cannot be invoked in the case; that the legal persona of Balkrishna Rao Kunte, in fact has merged in the adopted son Vasant who survived him; that after Vasant's death Radha Bai succeeded him and took the property as hia mother; that the death of Radha Bai thus opened the inheritance to the reversioners and the one most related at the time of the last full owner became entitled to possession; and that therefore the defendants were entitled to the property.
11. In my opinion, the learned Judge proceeded in considering this aspect on the state of Hindu Law as it existed before the passing of the Hindu Women's Rights to Property Act but did not fully consider the effect of the Act on the then existing state of Hindu Law.
The observation of Chandavarkar J. in 32 Bom 275 (G) which was a decision before the Hindu Women's Rights to Property Act was held by the learned Judge as both apposite and weighty and his conclusion, in my opinion, is based upon that, decision. But that may not be the law applicable in view of the Hindu Women's Rights to Property Act and is contrary to the view taken by the Madras High Court, the Bombay High Court and this Court. With all respect to the learned Judge, I am not inclined to follow his decision in deciding this appeal.
12. In the case of (S) AIR 1955 Orissa 139 (D), my Lord the Chief Justice and myself held that the right of the widow to succeed to the interest of her deceased husband in the joint family properties under Section 3(2), Hindu Women's Rights to Property Act, is neither by inheritance nor by survivorship; that it is a special right created in favour of the widow by the statute on the recognition of the principle that the widow is the surviving half of the deceased husband; that the interest which she gets is not as the heir of her deceased husband and that it is a fluctuating interest and she is entitled to the share of her husband's interest in the family properties as they stand at the time of the partition suit.
13. It may be noted that in this case Gopi having died, there is no coparcenary existing. The widow is the only member of the joint family. She having succeeded to the interest of her husband under the Act continues to have that interest till her death and if there is a coparcener in existence at the time of her death he would succeed to those properties.
But on the facts of this particular case if she continues to be entitled to that interest till her death and after her death in the absence of a coparcener that interest must revert to the heirs of her husband as till that time half of her husband's persona remains in her. As far as this interest of her husband is concerned, Gopi cannot be said to be the last male-holder entitled to the property because he predeceased her and died at a time when the widow of Sadhu possesses and enjoys his interest under the Act.
The last male-holder entitled to that interest can only be Sadhu and that interest after her death in the absence of Gopi must be taken by the heirs of Sadhu and not of Gopi.
14. In 'Kunja Sahu's case (A)', as already stated, it was decided that a widow succeeding to her husband's interest in the joint family property under the Hindu Women's Rights to Property Act can, before claiming partition, alienate that interest to others for legal necessity.
In the cases of the Madras High Court in AIR 1954 Mad 576 (FB) (E) & AIR 1954 Mad 227 (F), it was held that under the Hindu Women's Rights to Property Act the widow of a coparcener succeeds to the interest of her husband in the joint family property and that as long as she is alive, the rule of survivorship is in abeyance and immediately after her death the rule of survivorship revives and the coparceners take her interest and that it is a fluctuating interest.
In the case of (S) AIR 1955 Orissa 135 (D) it was observed by my Lord the Chief Justice in his Judgment:
'If and when she works out a severance of status by suing for partition the interest of her husband in the property gets defined and acquires a separate existence as an entity. This interest will devolve, on her death, on her husband's heirs and not revert to the coparcenary as it has already been disrupted'.
This observation, therefore, is an authority for the proposition that if there was a partition at the instance of the widow succeeding to her husband's interest under the Act then that interest would devolve on her death, on her husband's heirs and not revert to the coparcenary as it had already been disrupted.
So, though there are authorities in the decisions of this High Court and of the Madras High Court that the widow succeeding under Section 3(2), Hindu Women's Rights to Property Act, to the interest of her husband can alienate that interest for legal necessity and if during her lifetime she sues for partition and gets that interest defined then that property reverts to her husband's heirs and not to the coparcenary, & that if the widow continues to enjoy the husband's interest in the joint family property without partition, the right of survivorship of the coparceners is put in abeyance and revives as soon as the widow dies, there is no direct authority in support of the proposition which, in my opinion, should flow logically from the other three propositions stated above-- that the interest of the widow succeeding to her husband's interest in coparcenary property goes to the heirs of her husband after her, in the absence of any coparcener living at the time of her death.
15. I have already held that I cannot agree with the reasoning of the decision of the learned Judge in the Madhya Bharat case. Relying on the principles laid down in the decisions of this Court in AIR 1951 Orissa 35 (A) and (S) AIR 1955 Orissa 135 (D) as also the decisions of the Madras High Court in AIR 1954 Mad 576 (E) and AIR 1954 Mad 227 (P), I am inclined to think that it is consistent with the general notions of Hindu Law if, in construing the effect of a widow succeeding to the interest of her husband in the coparcenary property under Section 3(2) of the Act which is a limited estate under Clause 3 and which she continues to possess till her death, it is held that after her death, if no coparcener of the husband's family is alive at the time she dies, the interest of her husband to which she succeeded devolves on her husband's heirs.
Sadhu and his son, Gopi were coparceners when Sadhu died. Sadhu's interest which at the time of his death is half, devolved on her under the Act and the other half vested in Gopi as the surviving coparcener. She could have alienated her limited Interest. She could have sued Gopi for partition and separate possession of her half interest. As long as she remained joint with Gopi, her interest was a fluctuating interest liable to increase or decrease according to circumstances. If she predeceased Gopi he could have succeeded to that interest by survivorship.
If Gopi who predeceased her had left a son, he would have succeeded to her interest on her death. But Gopi died in 1941 issueless and unmarried. There is no other coparcener in the family. She succeeded to the interest of Gopi by inheritance as mother and continues to possess her husband's interest as his widow. Of this half-interest which she !s entitled to possess under the Act till her death, Gopi who is already dead cannot be said to be the last male-holder as he never succeeded to nor possessed this interest.
As far as this interest is concerned Sadhu only can be the last male-holder after her death. And to this the plaintiffs would be the reversioners being the sister and sister's son of Sadhu. This applies only as far as the interest of Sadhu in the property is concerned to which she succeeded under the Act. In my opinion, the other half of the property which was Gopi's and to which she succeeded as mother by the Hindu law of inheritance must, revert back to the heirs of Gopi after her death.
16. Consequently, I am of opinion that the plaintiffs can maintain the suit as they are entitled to question the validity at least of the interest of defendant 4 which devolved upon her after the death of Sadhu under the Hindu Women's Rights to Property Act.
17. I would, therefore, set aside the judgment and decree of the lower; appellate Court, allow the appeal, but inasmuch as the learned District Judge did not record a finding on the question of legal necessity, I would send back the appeal to the first appellate Court for disposal according to law, after coming to a conclusion on the question of legal necessity. Costs will abide the result.
18. I agree.